60-6-106. Limitation of authority within incorporated municipalities -- exclusion outside incorporated municipalities -- inclusion due to lack of local ordinances. (1) (a) Municipalities incorporated under Title 7, chapter 2, part 41, have the authority to enact ordinances in accordance with state and federal laws governing the placement of impermanent encroachments on sidewalks of a commission-designated highway system or state highway right-of-way without the necessity of permitting by the department of transportation for individual encroachments as described in 60-6-101.

(b) This provision is limited to sidewalks as defined in 61-8-102.

(2) (a) This provision specifically excludes all commission-designated highway systems and state highway rights-of-way outside of incorporated municipality boundaries.

(b) A sidewalk encroachment requiring or resulting in a permanent attachment to or a modification of a commission-designated highway system or state highway right-of-way must abide by the requirements of 60-6-101 through 60-6-105.

(3) (a) An incorporated municipality that has not enacted an ordinance regulating the placement of an impermanent encroachment on a sidewalk shall default to the permitting process as described in 60-6-101 until it enacts a regulating ordinance.

(b) After enacting a regulating ordinance:

(i) the municipality shall indemnify the state, including costs and fees, for all claims for damages caused by the municipality's enactment of an ordinance, approval of the impermanent encroachment on a sidewalk, and placement of the impermanent encroachment on a sidewalk; and

(ii) 60-6-101 through 60-6-105 do not apply to the impermanent encroachment on a sidewalk except as provided by this section.

(4) The department of transportation shall communicate identified violations of state or federal law, including the Americans with Disabilities Act of 1990, 42 U.S.C. 12101, et seq., as amended, to the incorporated municipalities for enforcement within their boundaries. This communication must include references to the state or federal law that was violated. If an incorporated municipality has not acted to address the violation within 7 days, the department of transportation is authorized to proceed with removal of the violation as described in 60-6-101 through 60-6-105.

(5) "Impermanent encroachment" means:

(a) an object that is not permanently affixed to the sidewalk of a commission-designated highway system or state highway right-of-way or that does not require the modification of the sidewalk of a commission-designated highway system or state highway right-of-way; or

(b) an occupied encroachment above grade level.