T40CH2
Title 40 > T40CH2
Sections (13)
40-201
TITLE 40 HIGHWAYS AND BRIDGES CHAPTER 2 GENERAL PROVISIONS 40-201. State highway, county highway, highway districts and city highway systems established. There shall be a system of state highways in the state, a system of county highways in each county, a system of highways in each highway district, and a system of highways in each city, except as otherwise provided. The improvement of highways and highway systems is hereby declared to be the established and permanent policy of the state of Idaho, and the duty is hereby imposed upon the state, and all counties, cities, and highway districts in the state, to improve and maintain the highways within their respective jurisdiction as hereinafter defined, within the limits of the funds available. History: [40-201, added 1985, ch. 253, sec. 2, p. 593; am. 1986, ch. 206, sec. 1, p. 512; am. 1986, ch. 328, sec. 3, p. 804; am. 1987, ch. 130, sec. 1, p. 261.]
40-202
TITLE 40 HIGHWAYS AND BRIDGES CHAPTER 2 GENERAL PROVISIONS 40-202. Designation of highways and public rights-of-way. (1) The initial selection of the county highway system and highway district system may be accomplished in the following manner: (a) The board of county or highway district commissioners shall cause a map to be prepared showing the general location of each highway and public right-of-way in its jurisdiction, and the commissioners shall cause notice to be given of intention to adopt the map as the official map of that system, and shall specify the time and place at which all interested persons may be heard. (b) After the hearing, the commissioners shall adopt the map, with any changes or revisions considered by them to be advisable in the public interest, as the official map of the respective highway system. (2) If a county or highway district acquires an interest in real property for highway or public right-of-way purposes, the respective commissioners shall: (a) Cause any order or resolution enacted, and deed or other document establishing an interest in the property for their highway system purposes to be recorded in the county records; or (b) Cause the official map of the county or highway district system to be amended as affected by the acceptance of the highway or public right-of-way. Provided, however, a county with highway jurisdiction or highway district may hold title to an interest in real property for public right-of-way purposes without incurring an obligation to construct or maintain a highway within the right-of-way until the county or highway district determines that the necessities of public travel justify opening a highway within the right-of-way. The lack of an opening shall not constitute an abandonment, and mere use by the public shall not constitute an opening of the public right-of-way. (3) Highways laid out, recorded and opened as described in subsection (2) of this section, by order of a board of commissioners, and all highways used for a period of five (5) years, provided they shall have been worked and kept up at the expense of the public, or located and recorded by order of a board of commissioners, are highways. If a highway created in accordance with the provisions of this subsection is not opened as described in subsection (2) of this section, there shall be no duty to maintain that highway, nor shall there be any liability for any injury or damage for failure to maintain it or any highway signs, until the highway is designated as a part of the county or highway district system and opened to public travel as a highway. (4) When a public right-of-way is created in accordance with the provisions of subsection (2) of this section, or section 40-203 or 40-203A , Idaho Code, there shall be no duty to maintain that public right-of-way, nor shall there be any liability for any injury or damage for failure to maintain it or any highway signs. (5) Nothing in this section shall limit the power of any board of com
40-203
TITLE 40 HIGHWAYS AND BRIDGES CHAPTER 2 GENERAL PROVISIONS 40-203. Abandonment and vacation of county and highway district system highways or public rights-of-way. (1) A board of county or highway district commissioners, whichever shall have jurisdiction of the highway system, shall use the following procedure to abandon and vacate any highway or public right-of-way in the county or highway district system including those which furnish public access to state and federal public lands and waters: (a) The commissioners may by resolution declare their intention to abandon and vacate any highway or public right-of-way or to reclassify a public highway as a public right-of-way, where doing so is in the public interest. (b) Any resident, or property holder, within a county or highway district system including the state of Idaho, any of its subdivisions, or any agency of the federal government may petition the respective commissioners for abandonment and vacation of any highway or public right-of-way within their highway system. The petitioner shall pay a reasonable fee as determined by the commissioners to cover the cost of the proceedings. (c) The commissioners shall establish a hearing date or dates on the proposed abandonment and vacation. (d) The commissioners shall prepare a public notice stating their intention to hold a public hearing to consider the proposed abandonment and vacation of a highway or public right-of-way, which shall be made available to the public not later than thirty (30) days prior to any hearing and mailed to any person requesting a copy not more than three (3) working days after any such request. (e) At least thirty (30) days prior to any hearing scheduled by the commissioners to consider abandonment and vacation of any highway or public right-of-way, the commissioners shall mail notice by United States mail to known owners and operators of an underground facility, as defined in section 55-2202 , Idaho Code, that lies within the highway or public right-of-way. (f) At least thirty (30) days prior to any hearing scheduled by the commissioners to consider abandonment and vacation of any highway or public right-of-way, the commissioners shall mail notice to owners of record of land abutting the portion of the highway or public right-of-way proposed to be abandoned and vacated at their addresses as shown on the county assessor’s tax rolls and shall publish notice of the hearing at least two (2) times if in a weekly newspaper or three (3) times if in a daily newspaper, the last notice to be published at least five (5) days and not more than twenty-one (21) days before the hearing. (g) At the hearing, the commissioners shall accept all information relating to the proceedings. Any person, including the state of Idaho or any of its subdivisions, or any agency of the federal government, may appear and give testimony for or against abandonment. (h) After completion of the proceedings and consideration of all related information, the com
40-203A
TITLE 40 HIGHWAYS AND BRIDGES CHAPTER 2 GENERAL PROVISIONS 40-203A. Validation of county or highway district system highway or public right-of-way. (1) Any resident or property holder within a county or highway district system, including the state of Idaho or any of its subdivisions, or any agency of the federal government, may petition the board of county or highway district commissioners, whichever shall have jurisdiction of the highway system, to initiate public proceedings to validate a highway or public right-of-way, including those which furnish public access to state and federal public lands and waters, provided that the petitioner shall pay a reasonable fee as determined by the commissioners to cover the cost of the proceedings, or the commissioners may initiate validation proceedings on their own resolution, if any of the following conditions exist: (a) If, through omission or defect, doubt exists as to the legal establishment or evidence of establishment of a highway or public right-of-way; (b) If the location of the highway or public right-of-way cannot be accurately determined due to numerous alterations of the highway or public right-of-way, a defective survey of the highway, public right-of-way or adjacent property, or loss or destruction of the original survey of the highways or public rights-of-way; or (c) If the highway or public right-of-way as traveled and used does not generally conform to the location of a highway or public right-of-way described on the official highway system map or in the public records. (2) If proceedings for validation of a highway or public right-of-way are initiated, the commissioners shall follow the procedure set forth in section 40-203 , Idaho Code, and shall: (a) If the commissioners determine it is necessary, cause the highway or public right-of-way to be surveyed; (b) Cause a report to be prepared, including consideration of any survey and any other information required by the commissioners; (c) Establish a hearing date on the proceedings for validation; (d) Cause notice of the proceedings to be provided in the same manner as for abandonment and vacation proceedings; and (e) At the hearing, the commissioners shall consider all information relating to the proceedings and shall accept testimony from persons having an interest in the proposed validation. (3) Upon completion of the proceedings, the commissioners shall determine whether validation of the highway or public right-of-way is in the public interest and shall enter an order validating the highway or public right-of-way as public or declaring it not to be public. (4) From any such decision, any resident or property holder within a county or highway district system, including the state of Idaho or any of its subdivisions, or any agency of the federal government, may appeal to the district court of the county in which the highway or public right-of-way is located pursuant to section 40-208 , Idaho Code. (5) When a board of commissioners validat
40-203B
TITLE 40 HIGHWAYS AND BRIDGES CHAPTER 2 GENERAL PROVISIONS 40-203B. Abandonment or assuming control of a highway. Whenever the Idaho transportation department is either planning to abandon any section or all of a state highway to a county, a city or a highway district or assume control of a section or all of a highway which is under the jurisdiction of a county, city or a highway district, the transportation department shall first obtain the consent of the applicable local highway jurisdiction before it may abandon or assume control of the highway. Consent shall be obtained by passage of a resolution by the local highway jurisdiction assenting to the proposed action of the transportation department. Prior to consenting to an abandonment or assumption of the applicable highway, the local highway jurisdiction may conduct a public hearing and also provide notice to any impacted property owners, businesses, industries and enterprises. If consent is not obtained as provided in this section, the action by the transportation department regarding the abandonment of a state highway or assumption of control of a local jurisdiction highway shall be null, void, and of no force and effect. History: [40-203B, added 1990, ch. 60, sec. 1, p. 136; am. 2013, ch. 141, sec. 2, p. 339.]
40-204
TITLE 40 HIGHWAYS AND BRIDGES CHAPTER 2 GENERAL PROVISIONS 40-204. Assent to federal acts. (1) The state of Idaho renews its assent to the provisions of the act of congress approved July 11, 1916, entitled, An act to provide that the United States shall aid the states in the construction of rural post roads, and for other purposes (39th United States Statutes at Large, page 355), and its amendments or acts supplementary to it, and accepts the provisions and benefits of any act of congress enacted having for its purpose the construction, improvement and maintenance of public roads or highways in the state of Idaho. (2) The state of Idaho renews its assent to the provisions of the act of congress approved October 22, 1965, entitled, An act to provide for scenic development and road beautification of the federal-aid highway systems (Public Law 89-285), and its amendments, or acts supplementary to it and accepts the provisions and benefits of any act of congress enacted having for its purpose the control of outdoor advertising, and junkyards adjacent to highways, or the landscaping and scenic enhancement of highways in the state of Idaho. History: [40-204, added 1985, ch. 253, sec. 2, p. 594.]
40-204A
TITLE 40 HIGHWAYS AND BRIDGES CHAPTER 2 GENERAL PROVISIONS 40-204A. Federal land rights-of-way. (1) The state recognizes that the act of construction and first use constitute the acceptance of the grant given to the public for federal land rights-of-way, and that once acceptance of the grant has been established, the grant shall be for the perpetual term granted by the congress of the United States. (2) The only method for the abandonment of these rights-of-way shall be that of eminent domain proceedings in which the taking of the public’s right to access shall be justly compensated. Neither the mere passage of time nor the frequency of use shall be considered a justification for considering these rights-of-way to have been abandoned. (3) All of the said rights-of-way shall be shown by some form of documentation to have existed prior to the withdrawal of the federal grant in 1976 or to predate the removal of land through which they transit from the public domain for other public purposes. Documentation may take the form of a map, an affidavit, surveys, books or other historic information. (4) These rights-of-way shall not require maintenance for the passage of vehicular traffic, nor shall any liability be incurred for injury or damage through a failure to maintain the access or to maintain any highway sign. These rights-of-way shall be traveled at the risk of the user and may be maintained by the public through usage by the public. (5) Any member of the public, the state of Idaho and any of its political subdivisions, and any agency of the federal government may choose to seek validation of its rights under law to use granted rights-of-way either through a process set forth by the state of Idaho, through processes set forth by any federal agency or by proclamation of user rights granted under the provisions of the original act, Revised Statute 2477. Persons seeking to have a federal land right-of-way, including those which furnish public access to state and federal public lands and waters, validated as a highway or public right-of-way as part of a county or highway official highway system, shall follow the procedure outlined in section 40-203A , Idaho Code. Neither the granting of the original right-of-way nor any provision in this or any other state act shall be construed as a relinquishment of either federal ownership or management of the surface estate of the property over which the right-of-way passes. (6) Persons seeking acknowledgement of federal land rights-of-way shall file with the county recorder the request for acknowledgement and for any supporting documentation. The county recorder shall record acknowledgements, including supporting documentation, and maintain an appropriate index of same. History: [40-204A, added 1993, ch. 142, sec. 3, p. 376; am. 2000, ch. 251, sec. 4, p. 714.]
40-205
TITLE 40 HIGHWAYS AND BRIDGES CHAPTER 2 GENERAL PROVISIONS 40-205. Saving clause for acts and suits in process of being carried out. This act shall not affect any act done, ratified or confirmed, or any right accrued, or established, or any action or proceeding had or commenced in a civil or criminal cause prior to July 1, 1985, and actions or proceedings may be prosecuted and continued by the department, and when required, by the board or the director, as the case may be. History: [40-205, added 1985, ch. 253, sec. 2, p. 594.]
40-206
TITLE 40 HIGHWAYS AND BRIDGES CHAPTER 2 GENERAL PROVISIONS 40-206. Publication of notices. Whenever publication of a notice by a county highway system or highway district is required for an override or bond election, or a hearing, it shall appear in a newspaper printed and published within the district or county, or in some newspaper of general circulation in the county or district, and the notice shall be published as follows: (1) The publication of notice for an override or bond election shall be published as provided for in section 34-1406 , Idaho Code. (2) The publication of notice for a hearing shall be published at least one (1) time in a weekly newspaper or at least two (2) consecutive times in a daily newspaper and remain the responsibility of the political subdivision proposing such hearing. The last notice shall be published not less than five (5) days prior to the hearing, except as otherwise specifically provided in this title. History: [40-206, added 1989, ch. 349, sec. 2, p. 876; am. 1994, ch. 123, sec. 1, p. 275; am. 2009, ch. 341, sec. 71, p. 1038.]
40-207
TITLE 40 HIGHWAYS AND BRIDGES CHAPTER 2 GENERAL PROVISIONS 40-207. Violations — Penalties. Any elected official, officer, or person who shall violate or aid in the violation of any of the provisions of this title, unless a different penalty is prescribed by law, shall be guilty of a misdemeanor, and upon conviction thereof be punished by a fine of not more than one thousand dollars ($1,000), or imprisonment for a period not to exceed ninety (90) days, or by both such fine and imprisonment. The reporting of violations under this title shall be afforded protection pursuant to the provisions of chapter 21, title 6 , Idaho Code. All fines collected for violations of the provisions of this title shall be paid into the highway distribution account established in section 40-701 , Idaho Code. History: [40-207, added 1985, ch. 253, sec. 2, p. 595; am. 2025, ch. 242, sec. 3, p. 1093.]
40-208
TITLE 40 HIGHWAYS AND BRIDGES CHAPTER 2 GENERAL PROVISIONS 40-208. Judicial review. (1) Any resident or property holder within the county or highway district system, including the state of Idaho or any of its subdivisions or any agency of the federal government, who is aggrieved by a final decision of a board of county or highway district commissioners in an abandonment and vacation or validation proceeding is entitled to judicial review under the provisions of this section. (2) Proceedings for review are instituted by filing a petition in the district court of the county in which the commissioners have jurisdiction over the highway or public right-of-way within twenty-eight (28) days after the filing of the final decision of the commissioners or, if a rehearing is requested, within twenty-eight (28) days after the decision thereon. (3) The filing of the petition does not itself stay enforcement of the commissioners’ decision. The reviewing court may order a stay upon appropriate terms. (4) Within thirty (30) days after the service of the petition, or within further time allowed by the court, the commissioners shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be ordered by the court to pay for additional costs. The court may require subsequent corrections to the record and may also require or permit additions to the record. (5) The parties may present additional evidence to the court, upon a showing to the court that such evidence is material to the issues presented to the court. In such case, the court may order that the additional information be presented to the commissioners upon conditions determined by the court. The commissioners may modify their findings and decisions by reason of the additional information and shall file that information and any modifications, new findings, or decisions with the reviewing court. (6) Either party to a proceeding may request in writing that a judge who resides outside the county where the subject road or property is located be appointed to hear the case, and, upon such written request, such a judge shall be appointed for the case. The review shall be conducted by the court without a jury. The court shall consider the record before the board of county or highway district commissioners and shall defer to the board of county or highway district commissioners on matters in which such board has appropriately exercised its discretion with respect to the evaluation of the public interest. As to the determination of highway or public right-of-way creation, width and abandonment, the court may accept new evidence and testimony supplemental to the record provided by the county or highway district, and the court shall consider those issues anew. In cases of alleged irregularities in procedure be
40-209
TITLE 40 HIGHWAYS AND BRIDGES CHAPTER 2 GENERAL PROVISIONS 40-209. Highway right-of-way plats. (1) A public highway agency may file in the office of the county recorder a highway right-of-way plat. The highway right-of-way plat shall show by outline and identify by parcel number, parcels of land to be acquired and shall be prepared in conformance with sections 55-1905 through 55-1907 , Idaho Code. The recording of a highway right-of-way plat as provided in this section shall not excuse a county or highway district from the requirements of abandonment or validation of a public highway or public right-of-way as provided in sections 40-203 and 40-203A , Idaho Code. The highway right-of-way plat shall contain the following: (a) Project name and number; (b) The location and monumentation of the points where the right-of-way changes direction by angle point or curvature and its intersection with any public highway, street or trail right-of-way and all witness corners and reference points. All points shall be marked with magnetically detectable monuments conforming to the provisions of section 54-1227 , Idaho Code, unless special circumstances preclude use of such monument. Monuments shall be marked such that measurements between them may be made to the nearest one-tenth (0.1) foot; (c) An outline showing the boundary of each parcel of land to be acquired based on ownership records and the right-of-way location survey; (d) An identifying parcel number and the area for each parcel of land to be acquired; (e) Acknowledgement of authorized agent of the public highway agency filing said plat; (f) Certificate of land surveyor under whose responsible charge the plat is prepared. (2) The highway right-of-way plat filed with the county recorder of any county shall be assigned an instrument number and shall be bound or filed with other plats of like character in a book on file designated Highway Right-of-Way Plats. (3) Any amendments, alterations, rescissions or changes in a highway right-of-way plat shall comply with subsection (1) of this section and shall be filed in a like manner. The recorder may make suitable notations on the appropriate highway right-of-way plat affected by the amendment, alteration, rescission or change to direct the attention of anyone examining the record to the proper plat. (4) Highway right-of-way plats filed under this section shall not operate to transfer title to the real property described therein but such plat shall be used for delineation purposes. Acquisition of real property for highway right-of-way by conveyance or judicial decree may refer to said highway right-of-way plat, project number and parcel identification number, together with delineation of the parcel as a valid description of the real property for all purposes. (5) The agency making the initial filing in a county shall reimburse the county recorder the actual cost of the plat book required in subsection (2) of this section. History: [40-209, added 1994, ch. 364,
40-210
TITLE 40 HIGHWAYS AND BRIDGES CHAPTER 2 GENERAL PROVISIONS 40-210. legislative intent — utility facilities — Coordinated relocation policies — definitions. (1) Public highways are intended principally for public travel and transportation; however, the public highways and the public right-of-way used in connection with the public highways are also lawfully used in connection with uses associated with utility purposes necessary to provide utility services to the public. Without making use of public highways and their associated rights-of-way, the utility facilities and services could not reach or economically serve the residents of the state of Idaho. Therefore, it is the intent of the legislature that the public highway agencies and utilities engage in proactive, cooperative coordination of highway projects through a process that will attempt to effectively minimize costs, limit the disruption of utility services, and limit or reduce the need for present or future relocation of such utility facilities. (2) In furtherance of the legislative intent expressed in subsection (1) of this section, public highway agencies engaged in a public highway project that may require the relocation of utility facilities, or any private party working with a public highway agency on a project that may require the relocation of utility facilities in connection therewith, shall permit the affected utility to participate in project development meetings. In addition, at the beginning of the preliminary design phase of the project, the public highway agency shall, upon giving written notice of not less than thirty (30) days to the affected utility, meet with the utility for the purpose of allowing the utility to review plans, understand the goals, objectives and funding sources for the proposed project, provide and discuss recommendations to the public highway agency that would reasonably eliminate or minimize utility relocation costs, limit the disruption of utility services, eliminate or reduce the need for present or future utility facility relocation, and provide reasonable schedules to enable coordination of the highway project construction and such utility facility relocation as may be necessary. While recognizing the essential goals and objectives of the public highway agency in proceeding with and completing a project, the parties shall use their best efforts to find ways to (a) eliminate the cost to the utility of relocation of the utility facilities, or (b) if elimination of such costs is not feasible, minimize the relocation costs to the maximum extent reasonably possible. (3) If a utility has received notice of the preliminary design meeting as set forth in subsection (2) of this section and has failed to respond or participate in meetings described therein, such failure to respond or participate in such meetings shall not in any way affect the ability of the public highway agencies to proceed with the project design or construction. (4) As used in this sectio