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S1408aa...................................................by TRANSPORTATION
RIGHTS-OF-WAY - Amends and repeals existing law to revise the definition of
a "public right-of-way"; to provide that gates are encroachments; to
increase the penalty for unlawful encroachments on public rights-of-way;
and to delete provisions which describe when gates are allowed and when
they are not allowed.
02/11 Senate intro - 1st rdg - to printing
02/14 Rpt prt - to Transp
03/10 Rpt out - to 14th Ord
03/15 Rpt out amen - to engros
03/16 Rpt engros - 1st rdg - to 2nd rdg as amen
03/17 2nd rdg - to 3rd rdg as amen
03/21 3rd rdg as amen - PASSED - 30-0-5
AYES--Andreason, Boatright, Branch, Bunderson, Burtenshaw, Cameron,
Crow, Danielson, Darrington, Davis, Deide, Dunklin, Frasure, Hawkins,
Ipsen, Keough, King-Barrutia, Lee, McLaughlin, Parry, Riggs, Risch,
Sandy, Schroeder, Sorensen, Stennett, Thorne, Wheeler, Whitworth,
Williams
NAYS--None
Absent and excused--Geddes, Ingram, Noh, Richardson, Stegner
Floor Sponsor - Whitworth
Title apvd - to House
03/22 House intro - 1st rdg as amen - to Transp
03/29 Rpt out - rec d/p - to 2nd rdg as amen
04/03 3rd rdg as amen - PASSED - 64-0-6
AYES -- Alltus, Barraclough(Barraclough), Barrett, Bell, Bieter,
Black, Boe, Bruneel, Callister, Campbell, Chase, Cheirrett, Crow,
Cuddy, Deal, Denney, Field(13), Field(20), Gagner, Geddes, Gould,
Hadley, Hammond, Hansen(23), Hansen(29), Henbest, Hornbeck, Jaquet,
Jones, Judd, Kellogg, Kempton, Kendell, Kunz, Lake,
Loertscher(Loertscher), Mader, Marley, McKague, Meyer, Montgomery,
Moss, Moyle, Pearce, Pischner, Pomeroy, Reynolds, Ridinger, Ringo,
Robison, Sali, Schaefer, Sellman, Shepherd, Smith, Smylie, Stevenson,
Stoicheff, Stone, Taylor, Tilman, Trail, Wood, Zimmermann
NAYS -- None
Absent and excused -- Clark, Ellsworth, Linford, Mortensen, Wheeler,
Mr Speaker
Floor Sponsor - Cuddy
Title apvd - to Senate
04/04 To enrol - rpt enrol - Pres signed
04/05 Sp signed
04/06 To Governor
04/12 Governor signed
Session Law Chapter 252
Effective: 04/12/00
S1408
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
IN THE SENATE
SENATE BILL NO. 1408, As Amended
BY TRANSPORTATION COMMITTEE
1 AN ACT
2 RELATING TO PUBLIC RIGHTS-OF-WAY; AMENDING SECTION 40-117, IDAHO CODE, TO
3 REVISE THE DEFINITION OF "PUBLIC RIGHT-OF-WAY"; AMENDING SECTION 40-2319,
4 IDAHO CODE, TO PROVIDE THAT GATES ARE ENCROACHMENTS, TO INCREASE THE PEN-
5 ALTY FOR UNLAWFUL ENCROACHMENTS, TO PROVIDE PROPER NOMENCLATURE AND TO
6 MAKE A TECHNICAL CORRECTION; REPEALING SECTION 40-2320, IDAHO CODE; AND
7 DECLARING AN EMERGENCY.
8 Be It Enacted by the Legislature of the State of Idaho:
9 SECTION 1. That Section 40-117, Idaho Code, be, and the same is hereby
10 amended to read as follows:
11 40-117. DEFINITIONS -- P.
12 (1) "Person" includes every natural person, firm, fiduciary, copartner-
13 ship, association, corporation, trustee, receiver or assignee for the benefit
14 of creditors.
15 (2) "Place." (See "Maintain," section 40-114, Idaho Code)
16 (3) "Primary system" or "primary highway" means any portion of the high-
17 ways of the state, as officially designated, or as may hereafter be so desig-
18 nated, by the Idaho transportation board, and approved by the secretary of
19 transportation, pursuant to the provisions of title 23, U.S. Code,
20 "Highways.".
21 (4) "Public highway agency" means the state transportation department,
22 any city, county, highway district or other political subdivision of the state
23 with jurisdiction over public highway systems and public rights-of-way.
24 (5) "Public highways" means all highways open to public use in the state,
25 whether maintained by the state or by any county, highway district, city, or
26 other political subdivision. (Also see "Highways," section 40-109, Idaho Code)
27 (6) "Public right-of-way" means a right-of-way open to the public and
28 under the jurisdiction of a public highway agency, where the public highway
29 agency has no obligation to construct or maintain, but may expend funds for
30 the maintenance of, said public right-of-way or post traffic signs for vehicu-
31 lar traffic on said public right-of-way. In addition, a public right-of-way
32 includes a right-of-way which was originally intended for development as a
33 highway and was accepted on behalf of the public by deed of purchase, fee sim-
34 ple title, authorized easement, eminent domain, by plat, prescriptive use, or
35 abandonment of a highway pursuant to section 40-203, Idaho Code, but shall not
36 include federal land rights-of-way, as provided in section 40-204A, Idaho
37 Code, that resulted from the creation of a facility for the transmission of
38 water. Public rights-of-way shall not be considered improved highways for the
39 apportionment of funds from the highway distribution account.
40 SECTION 2. That Section 40-2319, Idaho Code, be, and the same is hereby
41 amended to read as follows:
2
1 40-2319. ENCROACHMENTS -- REMOVAL -- NOTICE -- PENALTY FOR FAILURE TO
2 REMOVE -- REMOVAL BY DIRECTOR OF HIGHWAYS COUNTY OR HIGHWAY DISTRICT -- ABATE-
3 MENT. (1) If any highway laid out or erected or public right-of-way under the
4 jurisdiction of a county or highway district is encroached upon by gates,
5 fences, buildings, or otherwise, the director of highways of the appropriate
6 county or highway district may, orally or in writing, require the encroachment
7 to be removed. from the highway. If the encroachment is of a nature as to
8 effectually obstruct and prevent the use of the highway or public right-of-way
9 for vehicles, the county or highway district shall immediately cause the
10 encroachment to be removed.
11 (2) Notice shall be given to the occupant or owner of the land, or person
12 causing or owning the encroachment, or left at his place of residence if he
13 resides in the county highway jurisdiction. If not, it shall be posted on the
14 encroachment, specifying the breadth of the highway, the place and extent of
15 the encroachment, and requiring him to remove the encroachment within ten (10)
16 days.
17 (3) If the encroachment is not removed, or commenced to be removed, prior
18 to the expiration of ten (10) days from the service or posting the notice, the
19 person who caused, owns or controls the encroachment shall forfeit up to one
20 hundred fifty dollars ($150.00) for each day the encroachment continues
21 unmoved. If the encroachment is of a nature as to effectually obstruct and
22 prevent the use of the highway for vehicles, the director of highways shall
23 immediately remove the encroachment unremoved.
24 (4) If the encroachment is denied, and the owner, occupant, or person
25 controlling the encroachment, refuses either to remove it or to permit its
26 removal, the director of highways county or highway district shall commence in
27 the proper court an action to abate the encroachment as a nuisance. If the
28 director of highways county or highway district recovers judgment, he it may,
29 in addition to having the encroachment abated, recover up to one hundred fifty
30 dollars ($150.00) for every day the nuisance remained after notice, as well as
31 costs of the legal action and removal.
32 (5) If the encroachment is not denied, but is not removed for within five
33 (5) days after the notice is complete, the director of highways county or
34 highway district may remove it at the expense of the owner, occupant, or per-
35 son controlling the encroachment, and the county or highway district may
36 recover his costs and expenses, as well as the sum of up to one hundred fifty
37 dollars ($150.00) for each day the encroachment remained after notice was com-
38 plete.
39 SECTION 3. That Section 40-2320, Idaho Code, be, and the same is hereby
40 repealed.
41 SECTION 4. An emergency existing therefor, which emergency is hereby
42 declared to exist, this act shall be in full force and effect on and after its
43 passage and approval.
AS1408
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature Second Regular Session - 2000
Moved by Boatright
Seconded by Whitworth
IN THE SENATE
SENATE AMENDMENTS TO S.B. NO. 1408
1 AMENDMENTS TO SECTION 1
2 On page 1 of the printed bill, in line 28, delete "exclusive"; and in line
3 36, following "rights-of-way" insert: ", as provided in section 40-204A, Idaho
4 Code,".
5 AMENDMENTS TO SECTION 2
6 On page 2, in line 19, delete "seven hun-" and in line 20, delete "dred"
7 and insert: "up to one hundred"; and also in line 20, delete "7" and insert:
8 "1"; in line 29, delete "seven" and insert: "up to one"; in line 30, delete
9 "7" and insert: "1"; in line 36, delete "seven" and insert: "up to one"; and
10 in line 37, delete "7" and insert: "1".
11 CORRECTION TO TITLE
12 On page 1, in line 4, delete "FINE" and insert: "PENALTY".
STATEMENT OF PURPOSE
RS09908
The purpose of this legislation is to implement recommendation of
the Report to the Senate Transportation Committee and the House Transportation and
Defense Committee, submitted by the Local Highway Technical Assistance Council in
response to Senate concurrent Resolution - 136, passed in 1998.
Amendment of 40-117 (6) to properly add hyphens to denote the rights-of-way
refers to property and not a traffic rule. This amendment clarifies that there is no
obligation for posting traffic signs on public rights-of-way (including Federal lands
rights-of-way). It further specifies that public highway
agencies may expend funding on public rights-of-way and that public rights-of-way shall
not be considered improved highways for apportionment of funds from the Highway
Distribution Account.
Amendment of 40-2319 adds obstruction of a public rights-of-way to the statute.
It also clarifies that gates are obstructions; if the encroachment prevents vehicle travel,
the county or highway district shall immediately remove the obstruction. And also
increases the fine from $50.00 to $750.00.
40-2320 only allows a public road to be gated "subject to overflow to an extent
as to remove the fences," Idaho Transportation Departments administrative rule (IDAPA
39.03.47) further defines that overflow as water. During mileage certification if a gate is
encountered, the mileage beyond the gate is not inventoried, it is not included in the
allocation of funds from the Highway Distribution Account. Under the current statute and
rules when counties and highway districts use gates to control public travel on specific
sections of their highway system for common issues related to safety, maintenance,
environment, or game management, they suffer a loss of funds. Repeal of this statue will
allow counties and highway districts to fully manage their highway systems.
FISCAL NOTE
There is no impact to the General Fund.
CONTACT: Byron Keely, Local Highway Technical Assistance Council
344-0565
STATEMENT OF PURPOSE/ FISCAL NOTE S 1408