House bill NO. 198

INTRODUCED BY J. Dooling, N. Duram, B. Mitchell, M. Bertoglio, G. Frazer

By Request of the ****

A BILL FOR AN ACT ENTITLED: "AN ACT PROVIDING FOR MUNICIPAL AUTHORITY TO ENACT CERTAIN ORDINANCES REGARDING HIGHWAY ENCROACHMENTS; DEFINING IMPERMANENT ENCROACHMENT; AND AMENDING SECTIONS 60-6-101, 60-6-103, AND 60-6-104, MCA.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. 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) sections 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.

Section 2. Section 60-6-101, MCA, is amended to read:

"60-6-101. Highway encroachments -- permit -- immediate removal. (1) If a commission-designated highway system or state highway is encroached on by an obstruction, device, or object placed within the right-of-way limits, including a fence, building, structure, sign, marker, mailbox, newspaper delivery box, or driveway approach, or is obstructed by physical occupancy of the right-of-way by a person, persons, or group of persons, the department of transportation:

(a) for a mailbox or newspaper delivery box, may issue an encroachment permit pursuant to subsection (3); and

(b) (i) for all other encroachments, may issue an encroachment permit pursuant to subsection (2); or

(ii) may give notice in writing to the person erecting or maintaining the encroachment requiring that it be removed.

(2) (a) A Except as provided in [section 1], a highway right-of-way encroachment may not be constructed, maintained, or occupied on a commission-designated highway system or state highway without a permit. An application for a permit must be made to the department on a form provided by the department. The department shall require reasonable information to be furnished, including site plan drawings or specifications for an object encroachment.

(b) The department shall adopt rules pertaining to the issuance of encroachment permits and the removal of encroachments.

(3) (a) The department shall adopt rules pertaining to the accommodation of mailboxes and newspaper delivery boxes on public highway rights-of-way. The rules must ensure that the location and construction of mailboxes and newspaper delivery boxes conform to the rules and regulations of the U.S. postal service.

(b) The department may issue an encroachment permit for a completed permit application for a mailbox or newspaper delivery box.

(4) If an encroachment obstructs or prevents the use of the highway for vehicles, the department may immediately remove the encroachment without the notice required by 60-6-102.

(5) Utility facilities lawfully occupying a highway right-of-way on October 1, 2019, or under an occupancy or encroachment permit issued by the department pursuant to 60-4-402(1)(c) are not encroachments within the meaning of this part."

Section 3. Section 60-6-103, MCA, is amended to read:

"60-6-103. Encroachment not permanently affixed -- time limit for removal -- penalty. (1) If Except as provided in [section 1], if an unpermitted encroachment is not permanently affixed to the land and is not removed from the right-of-way by the person who erected or maintains the encroachment within 2 days after receipt of the notice provided for in 60-6-102, the department may begin action under 60-6-104 for its removal at the expense of the person who causes, owns, or controls it. The department may recover the expense of removal and costs in an action brought for that purpose.

(2) If an encroachment presents an imminent danger to the public, the department may immediately remove the encroachment without the notice required by 60-6-102."

Section 4. Section 60-6-104, MCA, is amended to read:

"60-6-104. Unpermitted encroachment -- department action. If Except as provided in [section 1], if an encroachment permit provided for in 60-6-101 has not been granted and the person erecting or maintaining the encroachment fails to remove it after receiving notice pursuant to 60-6-102, the department shall commence appropriate legal action to have the encroachment removed. If the department recovers a judgment, it shall have its costs. If the encroachment is not removed within 5 days after entry of judgment, the department may remove it at the expense of the person who causes, owns, or controls it."

Section 5. Codification instruction. [Section 1] is intended to be codified as an integral part of Title 60, chapter 6, part 1, and the provisions of Title 60, chapter 6, part 1, apply to [section 1].