2006 Legislation
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HOUSE BILL NO. 527 – Encroachments, permits, recording

HOUSE BILL NO. 527

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Bill Status



H0527.........................................by RESOURCES AND CONSERVATION
ENCROACHMENTS - Amends existing law to provide for the recordation of
permits issued for noncommercial navigational encroachments; to provide for
the effect of recordation; to provide for community navigational
encroachments; to provide for application process and procedure for
community navigational encroachments; and to provide for recordation of
permits issued for nonnavigational encroachments, commercial navigational
encroachments and community navigational encroachments.
                                                                        
02/01    House intro - 1st rdg - to printing
02/02    Rpt prt - to Res/Con
02/16    Rpt out - rec d/p - to 2nd rdg
02/17    2nd rdg - to 3rd rdg
02/22    3rd rdg - PASSED - 68-0-2
      AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
      Bedke, Bell, Bilbao, Black, Block, Boe, Bolz, Brackett, Cannon,
      Chadderdon, Clark, Collins, Crow, Deal, Denney, Edmunson, Ellsworth,
      Eskridge, Field(18), Field(23), Garrett, Hart, Harwood, Henbest,
      Henderson, Jaquet, Kemp, Lake, LeFavour, Loertscher, Martinez,
      Mathews, McGeachin, McKague, Miller, Mitchell, Nielsen, Nonini,
      Pasley-Stuart, Pence, Raybould, Ring, Ringo, Roberts, Rusche,
      Rydalch, Sali(Sali), Sayler, Schaefer, Shepherd(2), Shepherd(8),
      Shirley, Skippen, Smith(30), Smith(24), Smylie(Luker), Snodgrass,
      Stevenson, Trail, Wills, Wood, Mr. Speaker
      NAYS -- None
      Absent and excused -- Bradford, Moyle
    Floor Sponsor - Sayler
    Title apvd - to Senate
02/23    Senate intro - 1st rdg - to Res/Env
03/13    Rpt out - rec d/p - to 2nd rdg
03/14    2nd rdg - to 3rd rdg
03/16    3rd rdg - PASSED - 35-0-0
      AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett,
      Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis,
      Fulcher, Gannon, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough,
      Langhorst, Little, Lodge, Malepeai, Marley, McGee, McKenzie, Pearce,
      Richardson, Schroeder, Stegner, Stennett, Sweet, Werk, Williams
      NAYS -- None
      Absent and excused -- None
    Floor Sponsor - Langhorst
    Title apvd - to House
03/17    To enrol
03/20    Rpt enrol - Sp signed
03/21    Pres signed - To Governor
03/22    Governor signed
         Session Law Chapter 132
         Effective: 07/01/06

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   Second Regular Session - 2006
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 527
                                                                        
                          BY RESOURCES AND CONSERVATION COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO NAVIGATIONAL AND NONNAVIGATIONAL ENCROACHMENTS;  AMENDING  SECTION
  3        58-1305,  IDAHO CODE, TO PROVIDE FOR THE RECORDATION OF PERMITS ISSUED FOR
  4        NONCOMMERCIAL NAVIGATIONAL ENCROACHMENTS, TO PROVIDE  FOR  THE  EFFECT  OF
  5        RECORDATION  AND  TO  MAKE  TECHNICAL  CORRECTIONS;  AND  AMENDING SECTION
  6        58-1306, IDAHO CODE, TO PROVIDE FOR COMMUNITY NAVIGATIONAL  ENCROACHMENTS,
  7        TO  PROVIDE  CORRECT  TERMINOLOGY,  TO PROVIDE FOR APPLICATION PROCESS AND
  8        PROCEDURES RELATING TO COMMUNITY NAVIGATIONAL  ENCROACHMENTS,  TO  PROVIDE
  9        FOR  THE  RECORDATION OF PERMITS ISSUED FOR NONNAVIGATIONAL ENCROACHMENTS,
 10        COMMERCIAL NAVIGATIONAL ENCROACHMENTS AND COMMUNITY NAVIGATIONAL ENCROACH-
 11        MENTS AND TO MAKE TECHNICAL CORRECTIONS.
                                                                        
 12    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 13        SECTION 1.  That Section 58-1305, Idaho Code, be, and the same  is  hereby
 14    amended to read as follows:
                                                                        
 15        58-1305.  NONCOMMERCIAL   NAVIGATIONAL   ENCROACHMENTS  --  PROCEDURES  --
 16    REPAIRS -- FORMS. (a) Applications for construction, enlargement  or  replace-
 17    ment of navigational encroachments not extending beyond the line of navigabil-
 18    ity  nor intended primarily for commercial use shall be processed by the board
 19    with a minimum of procedural requirements and shall not be denied nor  appear-
 20    ance  required  except in the most unusual of circumstances or if the proposed
 21    encroachment infringes upon or it appears it may infringe upon the riparian or
 22    littoral rights of an adjacent property owner.
 23        (b)  If the plans of the proposed encroachment indicate such  infringement
 24    will  or may occur, the board shall require that the applicant secure the con-
 25    sent of such adjacent owner or that he be given notice of the  application  by
 26    personal service or by certified or registered mail, return receipt requested,
 27    directed  to him at his usual place of address, which, if not otherwise known,
 28    shall be the address shown on the records of the county treasurer or assessor,
 29    and such adjacent owner shall have ten (10) days from  the  date  of  personal
 30    service  or receipt of certified or registered mail to file objection with the
 31    board. The application itself shall be deemed sufficient notice if  the  adja-
 32    cent owner is the state of Idaho.
 33        (c)  In  the  event  objection  to the application is filed by an adjacent
 34    owner or if the board deems it advisable because of the existence  of  unusual
 35    circumstances,  the board shall fix a time, no later than sixty (60) days from
 36    the date of filing application, and a place, for affording the  applicant  and
 37    the  adjacent owner filing objection to appear and present evidence in support
 38    of or in opposition to the application and within forty-five  (45)  days  (45)
 39    thereafter shall render a decision and give notice thereof to the parties con-
 40    cerned who may thereafter resort to appellate procedures prescribed in section
 41    58-147 58-1306, Idaho Code.
 42        (d)  A permit shall not be required for repair of an existing navigational
 43    encroachment.
                                                                        
                                           2
                                                                        
  1        (e)  Applications  submitted  under this section shall be upon forms to be
  2    furnished by the board and shall be  accompanied  by  plans  of  the  proposed
  3    navigational  encroachment  containing  information required by section 58-143
  4    58-1302(k), Idaho Code, and such other information as the board may by rule or
  5    regulation require in conformance with the intent and purpose of this chapter.
  6        (f)  If notice to an adjacent owner is not required  or  if  the  adjacent
  7    owner  has consented to the proposed encroachment or has failed to file objec-
  8    tion to the proposed encroachment within the time allowed following service of
  9    notice, the board shall act upon the application as expeditiously as  possible
 10    but  no later than sixty (60) days from receipt of the application and failure
 11    to act within such time shall constitute approval of the application.
 12        (g)  All permits issued for noncommercial navigational encroachments shall
 13    be recorded in the records of the county in which the encroachment is  located
 14    and  shall  be a condition of issuance of a permit. Proof of recordation shall
 15    be furnished to the department by the permittee before a permit becomes valid.
 16    Such recordation shall be at the expense of the permittee. Recordation  of  an
 17    issued  permit serves only to provide constructive notice of the permit to the
 18    public and subsequent purchasers and mortgagees, but conveys no  other  right,
 19    title or interest on the permittee other than validation of said permit.
                                                                        
 20        SECTION  2.  That  Section 58-1306, Idaho Code, be, and the same is hereby
 21    amended to read as follows:
                                                                        
 22        58-1306.  NONNAVIGATIONAL OR COMMERCIAL NAVIGATIONAL ENCROACHMENTS -- COM-
 23    MUNITY NAVIGATIONAL ENCROACHMENTS -- NAVIGATIONAL ENCROACHMENTS BEYOND LINE OF
 24    NAVIGABILITY -- APPLICATION -- PROCEDURES -- PUBLICATION OF NOTICE --  HEARING
 25    --  APPEALS -- RECONSIDERATION -- CRITERIA PRIORITY. (a) Applications for con-
 26    struction, enlargement or replacement of a nonnavigational or encroachment,  a
 27    commercial  navigational  encroachment, a community navigational encroachment,
 28    or for a navigational encroachment extending beyond the line  of  navigability
 29    shall  be submitted upon forms to be furnished by the board and accompanied by
 30    plans of the proposed encroachment containing information required by  section
 31    58-143  58-1302(k), Idaho Code, and such other information as the board may by
 32    rule or regulation require in conformance with the intent and purpose of  this
 33    chapter. Applications for nonnavigational or commercial navigational encroach-
 34    ments must be submitted or approved by the riparian or littoral owner.
 35        (b)  Within  ten  (10)  days  of receipt of an application submitted under
 36    subsection (a) above of this section, the board shall cause to be published in
 37    a newspaper having general circulation in the county in which the encroachment
 38    is proposed, once a week for two (2) consecutive weeks, a notice  advising  of
 39    the  application and describing the proposed encroachment and general location
 40    thereof. Applications for installation of buried  or  submerged  water  intake
 41    lines  and  utility lines shall be exempt from the newspaper publication proc-
 42    ess. The board may also furnish copies of  the  application  and  accompanying
 43    plans  to other state agencies having an interest in the lake to determine the
 44    opinion of such state agencies  as  to  the  likely  effect  of  the  proposed
 45    encroachment upon adjacent property and lake value factors of navigation, fish
 46    and  wildlife  habitat,  aquatic  life,  recreation, aesthetic beauty or water
 47    quality. Within thirty (30) days following receipt of such copy of the  appli-
 48    cation  and  plans  from  the  board, such other state agency shall notify the
 49    board of its opinion and recommendations, if any, for alternate  plans  deter-
 50    mined  by such agency to be economically feasible to accomplish the purpose of
 51    the proposed encroachment without adversely  affecting  unreasonably  adjacent
 52    property or other lake value factors.
 53        (c)  Any  resident of the state of Idaho, or a nonresident owner or lessee
                                                                        
                                           3
                                                                        
  1    of real property adjacent to the lake, or any state  or  federal  agency  may,
  2    within  thirty (30) days of the first date of publication, file with the board
  3    an objection to the proposed encroachment and a request for a hearing  on  the
  4    application.  If  a hearing is requested, the same shall be held no later than
  5    ninety (90) days from the date of filing the application and  notice  of  such
  6    hearing  shall  be  given  in  the  manner prescribed for publishing notice of
  7    application. The board may, in its discretion, within ten (10) days of  filing
  8    the application, order a hearing in the first instance in which case, publica-
  9    tion  of  notice of the application shall be dispensed with. All such hearings
 10    shall be public and held under rules and regulations promulgated by the  board
 11    under  the  provisions  of  chapter  52, title 67 of the Idaho Code. The board
 12    shall render a decision within thirty (30) days following  conclusion  of  the
 13    hearing  and  a  copy of the board's decision shall be mailed to the applicant
 14    and to each person or agency appearing at the hearing and giving testimony  in
 15    support  of  or  in  opposition to the proposed encroachment. Any applicant or
 16    other aggrieved party so appearing at a hearing shall have the right  to  have
 17    the  proceedings  and  decision of the board reviewed by the district court in
 18    the county where the encroachment is  proposed  by  filing  notice  of  appeal
 19    within thirty (30) days from the date of the board's decision. If the decision
 20    of  the  board  be  approval of a permit, the party or parties appealing shall
 21    file a bond on such appeal in an amount to be fixed by the court but not  less
 22    than  five hundred dollars ($500) insuring payment to the applicant of damages
 23    caused by delay and costs and expenses, including reasonable attorney's  fees,
 24    incurred  on the appeal in the event the district court sustains the action of
 25    the board.
 26        (d)  In the event no objection to the proposed encroachment is filed  with
 27    the  board and no hearing is requested or ordered by the board, based upon its
 28    investigation and considering the economics of navigational necessity,  justi-
 29    fication  or benefit, public or private, of such proposed encroachment as well
 30    as its detrimental effects, if any, upon adjacent real property and lake value
 31    factors, the board shall prepare and forward to  the  applicant  by  certified
 32    mail  its  decision  and  the applicant, if dissatisfied therewith, shall have
 33    twenty (20) days from the date of mailing of such decision to notify the board
 34    if he requests a reconsideration thereof and if  such  request  is  made,  the
 35    board  shall  set  a  time and place for reconsideration, not to exceed thirty
 36    (30) days from receipt of such request, at which time and place the  applicant
 37    may  appear  in  person  or  by authorized representative. If aggrieved by the
 38    board's decision following reconsideration, the applicant may  appeal  to  the
 39    district court in the same manner as that provided for following a hearing.
 40        (e)  In  recognition  of  continuing  private  property ownership of lands
 41    lying between the natural or ordinary high water mark and the artificial  high
 42    water mark, the board shall consider unreasonable adverse effect upon adjacent
 43    property  and undue interference with navigation the most important factors to
 44    be  considered  in  granting  or  denying  an   application   for   either   a
 45    nonnavigational  encroachment  or  a  commercial navigational encroachment not
 46    extending below the natural or ordinary high water mark. If no objections have
 47    been filed to the application and no hearing has been requested or ordered  by
 48    the  board, or, if upon reconsideration of a decision disallowing a permit, or
 49    following a hearing, the board determines that the benefits, whether public or
 50    private, to be derived from allowing such encroachment exceed its  detrimental
 51    effects,  it  shall  grant the permit. As a condition of the permit, the board
 52    may require a lease or easement for use of any part of the state owned bed  of
 53    the lake.
 54        (f)  Recordation   of   an   issued   permit   All   permits   issued  for
 55    nonnavigational encroachments, commercial navigational encroachments, and com-
                                                                        
                                           4
                                                                        
  1    munity navigational encroachments shall be recorded  in  the  records  of  the
  2    county  in  which  an  the encroachment is located and shall be a condition of
  3    issuance of a permit. and pProof of recordation  shall  be  furnished  to  the
  4    department  by  the  permittee before a permit becomes valid. Such recordation
  5    shall be at the expense of the permittee.  Recordation  of  an  issued  permit
  6    serves  only  to  provide  constructive notice of the permit to the public and
  7    subsequent purchasers and mortgagees, but conveys no  other  right,  title  or
  8    interest on the permittee other than validation of said permit.
  9        (fg)  A   permit   shall  not  be  required  for  repair  of  an  existing
 10    nonnavigational or commercial navigational encroachment.

Statement of Purpose / Fiscal Impact


                    STATEMENT OF PURPOSE
 
                           RS 15340

Idaho Code Section 58-1306 currently requires county recordation 
of nonnavigational and commercial navigational encroachments.  
Recordation is a condition for issuance of an encroachment 
permit.  There is currently no requirement to record single-
family, two-family, and community docks.  This legislation 
amends Section 58-1305 to require recordation of single-family 
and two-family docks in the county where the encroachment is 
located, and amends Section 58-1306 to require recordation of 
community docks in the county where the encroachment is located.  
These amendments will identify existing permits in title 
records.



                          FISCAL NOTE

No fiscal impact on state funds.  Minimal filing fee impact on 
applicants.



CONTACT
Name:	Denise Mills
Agency:	Lands, Dept of
Phone:	208-334-0200

STATEMENT OF PURPOSE/FISCAL NOTE	H 527