Senate File 2297 - Introduced



                                     SENATE FILE       
                                     BY  COMMITTEE ON TRANSPORTATION

                                     (SUCCESSOR TO SSB 1100)


    Passed Senate,  Date               Passed House, Date             
    Vote:  Ayes        Nays           Vote:  Ayes        Nays         
                 Approved                            

                                      A BILL FOR

  1 An Act relating to obstructions in highways and providing
  2    penalties.
  3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  4 TLSB 6556SV 81
  5 eg/je/5

PAG LIN



  1  1    Section 1.  NEW SECTION.  318.1  DEFINITIONS.
  1  2    As used in this chapter, unless the context otherwise
  1  3 requires:
  1  4    1.  "Breakaway mailbox" means a mailbox, approved by the
  1  5 United States postal service under its "standard for
  1  6 mailboxes, city and rural curbside", and used for the curbside
  1  7 delivery of mail, which is supported by a wood post no greater
  1  8 in cross section than four inches square or by a post with a
  1  9 strength no greater than a two=inch=diameter standard steel
  1 10 pipe.  Two such posts may be used to support a cluster of four
  1 11 or more mailboxes.
  1 12    2.  "Department" means the state department of
  1 13 transportation.
  1 14    3.  "Highway authority" means the county board of
  1 15 supervisors, in the case of secondary roads, and the
  1 16 department, in the case of primary roads.
  1 17    4.  "Highway right=of=way" means the total area of land,
  1 18 whether reserved by public ownership or easement, that is
  1 19 reserved for the operation and maintenance of a legally
  1 20 established public roadway.  This area shall be deemed to
  1 21 consist of two portions, a central traveled way including the
  1 22 shoulders and that remainder on both sides of the road,
  1 23 between the outside shoulder edges and the outer boundaries of
  1 24 the right=of=way.
  1 25    5.  "Obstruction" means an obstacle in the highway right=
  1 26 of=way, or an impediment or hindrance which impedes, opposes,
  1 27 or interferes with free passage along the highway right=of=way
  1 28 not including utility structures installed in accordance with
  1 29 an approved permit.
  1 30    6.  "Traveled portion of the right=of=way" means that area
  1 31 of the highway right=of=way, not including the shoulders, on
  1 32 which vehicles normally travel.
  1 33    7.  "Utility" means all private, public, municipal, or
  1 34 cooperative owned systems for water, sewer, natural gas,
  1 35 electric, telegraph, telephone, transit, pipeline, heating
  2  1 plants, railroads, bridges, street lights, or traffic control
  2  2 signals.
  2  3    8.  "Utility structures" means the aboveground devices,
  2  4 required by a utility, including poles, lines, and wires, used
  2  5 for telephone, electric, natural gas, and other distribution
  2  6 or transmission purposes, and natural gas and electrical
  2  7 substations.
  2  8    Sec. 2.  NEW SECTION.  318.2  PURPOSE.
  2  9    The purpose of this chapter is to enhance public safety for
  2 10 those traveling the public roads and allow economical
  2 11 maintenance of highway rights=of=way.
  2 12    Sec. 3.  NEW SECTION.  318.3  OBSTRUCTIONS IN HIGHWAY
  2 13 RIGHT=OF=WAY.
  2 14    1.  A person shall not place, or cause to be placed, an
  2 15 obstruction within any highway right=of=way.  This prohibition
  2 16 includes, but is not limited to, the following actions:
  2 17    a.  The excavation, filling, or making of any physical
  2 18 changes to any part of the highway right=of=way, except as
  2 19 provided under section 318.8.
  2 20    b.  The cultivation or growing of crops within the highway
  2 21 right=of=way.
  2 22    c.  The destruction of plants placed within the highway
  2 23 right=of=way.
  2 24    d.  The placing of fences or ditches within the highway
  2 25 right=of=way.
  2 26    e.  The alteration of ditches, water breaks, or drainage
  2 27 tiles within the highway right=of=way.
  2 28    f.  The placement of trash, litter, debris, waste material,
  2 29 manure, rocks, crops or crop residue, brush, vehicles,
  2 30 machinery, or other items within the highway right=of=way.
  2 31    g.  The placement of billboards, signs, advertising
  2 32 devices, or mailboxes or mailbox supports, except for
  2 33 breakaway mailboxes, within the highway right=of=way.
  2 34    h.  The placement of any red reflector, or any object or
  2 35 other device which shall cause the effect of a red reflector
  3  1 on the highway right=of=way which is visible to passing
  3  2 motorists.
  3  3    2.  The following actions shall not constitute an
  3  4 obstruction within a highway right=of=way:
  3  5    a.  Mowing or harvesting grass within the highway right=
  3  6 of=way so long as the mowing or harvesting does not destroy
  3  7 the grass or other plants in the highway right=of=way and is
  3  8 not in violation of an integrated roadside vegetation
  3  9 management plan adopted pursuant to section 314.22.
  3 10    b.  Any action by, or authorized by, the highway authority
  3 11 or the state of Iowa.
  3 12    Sec. 4.  NEW SECTION.  318.4  DUTY OF HIGHWAY AUTHORITIES.
  3 13    The highway authority shall cause all obstructions in a
  3 14 highway right=of=way under its jurisdiction to be removed.
  3 15 The highway authority and its officers and employees shall be
  3 16 immune from liability regarding any claim based upon or
  3 17 arising out of an act or omission in connection with the
  3 18 removal of an obstruction.
  3 19    Sec. 5.  NEW SECTION.  318.5  REMOVAL AND COST.
  3 20    1.  An obstruction in a highway right=of=way which
  3 21 constitutes an immediate and dangerous hazard shall, without
  3 22 notice or liability in damages, be removed by the highway
  3 23 authority.
  3 24    2.  An obstruction not constituting an immediate and
  3 25 dangerous hazard shall be removed by the highway authority
  3 26 without liability after forty=eight=hour notice served in the
  3 27 same manner in which an original notice is served, or in
  3 28 writing by certified mail, or in any other manner reasonably
  3 29 calculated to apprise the person responsible for the
  3 30 obstruction that the obstruction will be removed at the
  3 31 person's expense.  The highway authority shall assess the
  3 32 removal cost.
  3 33    3.  Upon removal of the obstruction, the highway authority
  3 34 may immediately send a statement of the cost to the person
  3 35 responsible for the obstruction.  If within ten days after
  4  1 sending the statement the cost is not paid, the highway
  4  2 authority may institute legal proceedings to collect the cost
  4  3 of removal.  The removal costs shall be assessed against the
  4  4 following persons, as applicable:
  4  5    a.  The vehicle owner in the case of an abandoned vehicle.
  4  6    b.  The abutting property owner in the case of a fence,
  4  7 other than a right=of=way line fence, or other temporary
  4  8 obstruction placed within the highway right=of=way by the
  4  9 owner or tenant of the abutting property.
  4 10    c.  The owner or person responsible for placement of any
  4 11 other obstruction.
  4 12    Sec. 6.  NEW SECTION.  318.6  PUBLIC NUISANCE.
  4 13    1.  Any person who places, or causes to be placed, any
  4 14 obstruction in a highway right=of=way as prohibited under
  4 15 section 318.3 is deemed to have created a public nuisance
  4 16 punishable as provided in chapter 657.
  4 17    2.  If a person is found guilty of placing an obstruction
  4 18 within a highway right=of=way, the court may, in addition to
  4 19 any fine imposed, or judgment for damages or costs for which a
  4 20 separate execution may issue, order that the obstruction be
  4 21 abated or removed at the expense of the defendant.  The costs
  4 22 for abatement or removal of the obstruction may be entered as
  4 23 a personal judgment against the defendant or assessed against
  4 24 the property where the obstruction occurred, or both.
  4 25    Sec. 7.  NEW SECTION.  318.7  INJUNCTION TO RESTRAIN
  4 26 OBSTRUCTIONS.
  4 27    A highway authority may maintain a suit in equity aided by
  4 28 injunction to restrain an obstruction in a highway right=of=
  4 29 way.  In such actions, the highway authority may cause the
  4 30 legal boundary lines of the highway to be adjudicated provided
  4 31 all interested parties are impleaded.
  4 32    Sec. 8.  NEW SECTION.  318.8  PERMIT REQUIRED.
  4 33    A person shall not excavate, fill, or make a physical
  4 34 change within a highway right=of=way without obtaining a
  4 35 permit from the applicable highway authority.  At the request
  5  1 of a permittee, a modification may be granted in the
  5  2 discretion of the highway authority.  Work performed under the
  5  3 permit shall be performed in conformity with the
  5  4 specifications prescribed by the highway authority.  If the
  5  5 work does not conform to permit specifications, the person
  5  6 shall be notified to make the conforming changes.  If after
  5  7 twenty days the changes have not been made, the highway
  5  8 authority may make the necessary changes and immediately send
  5  9 a statement of the cost to the responsible person.  If within
  5 10 thirty days after sending the statement the cost is not paid,
  5 11 the highway authority may institute legal proceedings to
  5 12 collect the cost of correction.  A violation of the permit
  5 13 specifications shall be considered a violation of section
  5 14 318.3.  A public utility subject to section 306A.3 is exempt
  5 15 from this section.
  5 16    Sec. 9.  NEW SECTION.  318.9  UTILITY STRUCTURES.
  5 17    1.  a.  A utility structure in a highway right=of=way used
  5 18 for telephone, electric, natural gas, or other distribution or
  5 19 transmission purposes shall be removed by the owner or
  5 20 operator of the transmission lines upon written notice from
  5 21 the highway authority of not less than ninety days, to the
  5 22 owner and operator.  The notice shall, with reasonable
  5 23 certainty, specify the utility structure to be removed, and
  5 24 shall be served in the same manner that original notices are
  5 25 required to be served.  If the owner or operator of the
  5 26 transmission line is unable to remove the utility structure
  5 27 within the required time due to circumstances beyond the
  5 28 control of the owner or operator, the owner or operator shall
  5 29 file a request with the highway authority for an extension of
  5 30 time to complete the work.
  5 31    b.  If the owner or operator of a transmission line needs
  5 32 authorization from the utilities board or other governmental
  5 33 authority to relocate a utility structure or to obtain a new
  5 34 private easement right for relocation of the utility
  5 35 structure, the owner or operator shall request an extension of
  6  1 time within which to remove the utility structure.  The
  6  2 highway authority shall grant an extension of time for at
  6  3 least ninety days following the date authorization is granted
  6  4 or the easement right is obtained.
  6  5    2.  Upon written application, the highway authority shall
  6  6 locate the construction of new telephone, electric, or
  6  7 transmission lines or parts of lines, including natural gas
  6  8 pipeline, for the roads within the highway authority's
  6  9 jurisdiction, subject to the jurisdiction of the utilities
  6 10 board under chapters 476, 478, and 479, as follows:
  6 11    a.  The county engineer, or the board of supervisors if a
  6 12 county engineer is not available, shall locate the lines for
  6 13 secondary roads.
  6 14    b.  The department shall locate the lines for primary
  6 15 roads.
  6 16    3.  The department and the county engineer, or the board of
  6 17 supervisors if a county engineer is not available, may
  6 18 designate the location of a utility structure within a highway
  6 19 right=of=way.  A utility structure that is not properly
  6 20 located within the highway right=of=way shall be removed
  6 21 within a time prescribed to a designated location.  If not so
  6 22 removed, the highway authority may remove the utility
  6 23 structure and recover costs as provided in section 318.5.
  6 24    Sec. 10.  NEW SECTION.  318.10  FENCES.
  6 25    1.  A fence which constitutes an immediate and dangerous
  6 26 hazard shall, without notice or liability in damages, be
  6 27 removed by the highway authority.  In all other cases where a
  6 28 fence is an obstruction in a highway right=of=way, notice in
  6 29 writing of not less than thirty days shall be given to the
  6 30 owner, occupant, or agent of the land enclosed by the fence.
  6 31    2.  The notice shall, with reasonable certainty, specify
  6 32 the line to which the fences shall be removed, and shall be
  6 33 served in the same manner that original notices are required
  6 34 to be served, or in writing by certified mail, or in any other
  6 35 manner reasonably calculated to apprise the person responsible
  7  1 for the fence.
  7  2    3.  The department and the county engineer, or the board of
  7  3 supervisors if a county engineer is not available, may
  7  4 designate the location of a fence within a highway right=of=
  7  5 way.  A fence that is not properly located within the highway
  7  6 right=of=way shall be removed within a time prescribed to a
  7  7 designated location.  If not so removed, the highway authority
  7  8 may remove the fences and recover costs as provided in section
  7  9 318.5.
  7 10    Sec. 11.  NEW SECTION.  318.11  BILLBOARDS AND SIGNS.
  7 11    1.  No billboard or advertising sign or device, except a
  7 12 sign or device authorized by law or approved by the highway
  7 13 authority, shall be placed or erected upon a highway right=
  7 14 of=way.
  7 15    2.  A billboard or advertising sign, whether on public or
  7 16 private property, that obstructs the view of any portion of a
  7 17 public highway or of a railway track making the use of the
  7 18 traveled portion of the right=of=way dangerous is a public
  7 19 nuisance and shall be abated.  The person responsible for the
  7 20 erection and maintenance of the billboard or sign may be
  7 21 punished as provided in chapter 657.
  7 22    Sec. 12.  NEW SECTION.  318.12  ENFORCEMENT.
  7 23    A highway authority shall enforce the provisions of this
  7 24 chapter by appropriate civil or criminal proceeding or by both
  7 25 such proceedings.
  7 26    Sec. 13.  Section 68A.406, subsection 2, paragraph a, Code
  7 27 Supplement 2005, is amended to read as follows:
  7 28    a.  Any property owned by the state or the governing body
  7 29 of a county, city, or other political subdivision of the
  7 30 state, including all property considered the public right=of=
  7 31 way.  Upon a determination by the board that a sign has been
  7 32 improperly placed, the sign shall be removed by highway
  7 33 authorities as provided in section 319.13 318.5, or by county
  7 34 or city law enforcement authorities in a manner consistent
  7 35 with section 319.13 318.5.
  8  1    Sec. 14.  Section 306.46, subsection 1, Code Supplement
  8  2 2005, is amended to read as follows:
  8  3    1.  A public utility may construct, operate, repair, or
  8  4 maintain its utility facilities within a public road right=
  8  5 of=way.  The location of new utility facilities shall comply
  8  6 with section 319.5 318.9.  A utility facility shall not be
  8  7 constructed or installed in a manner that causes interference
  8  8 with public use of the road.
  8  9    Sec. 15.  Section 306C.13, subsection 8, paragraph f, Code
  8 10 2005, is amended to read as follows:
  8 11    f.  Which do not comply with all applicable state or local
  8 12 laws, regulations and ordinances, including but not limited to
  8 13 zoning, building, and sign codes as locally interpreted and
  8 14 applied and enforced, or which violate chapter 319 318;
  8 15 however, nothing in this division shall prevent or restrict
  8 16 county or local zoning authorities from making a determination
  8 17 of customary use concerning size, lighting, and spacing of
  8 18 advertising devices in zoned commercial or industrial adjacent
  8 19 areas, and such determinations will be accepted in lieu of the
  8 20 standards of this division.  The provisions of this division
  8 21 shall not prevent or restrict county or local zoning
  8 22 authorities within their respective jurisdictions from
  8 23 establishing standards imposing controls stricter than those
  8 24 required by this division.
  8 25    Sec. 16.  Section 311.32, Code 2005, is amended to read as
  8 26 follows:
  8 27    311.32  ADMINISTRATION AND MAINTENANCE OF ROADS.
  8 28    Any road established by petition and any road improved by
  8 29 petition under this chapter shall be administered and
  8 30 maintained by the county under chapters 306, 309, 314, 317,
  8 31 and 319 318.  However, the fact that right=of=way is donated
  8 32 by property owners for the establishment of a road or a
  8 33 portion of the cost of a road improvement is paid by property
  8 34 owners under this chapter, does not preclude the board of
  8 35 supervisors from exercising its responsibility over these
  9  1 roads as secondary roads.
  9  2    Sec. 17.  Section 331.362, subsection 7, Code 2005, is
  9  3 amended to read as follows:
  9  4    7.  The board shall cause the removal of obstructions on
  9  5 the secondary roads, in accordance with chapter 319 318.
  9  6    Sec. 18.  Section 331.756, subsection 57, Code Supplement
  9  7 2005, is amended to read as follows:
  9  8    57.  Commence legal proceedings to remove billboards and
  9  9 signs which constitute a public nuisance as provided in
  9 10 section 319.11 318.11.
  9 11    Sec. 19.  Chapter 319, Code 2005, is repealed.
  9 12                           EXPLANATION
  9 13    This bill reorganizes much of the existing Code chapter
  9 14 pertaining to obstructions in highways into new Code chapter
  9 15 318, while adding some new provisions.  The bill provides a
  9 16 purpose section and definitions for the new Code chapter.  The
  9 17 bill lists actions that are and are not prohibited
  9 18 obstructions.  The bill provides that an obstruction creates a
  9 19 public nuisance punishable under Code chapter 657 pertaining
  9 20 to nuisances.  The bill also addresses utility structures
  9 21 located in a highway right=of=way.
  9 22    The bill also provides amendments to other Code sections to
  9 23 conform to the new Code chapter.
  9 24 LSB 6556SV 81
  9 25 eg:nh/je/5