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First Substitute S.B. 249
Senator Leonard M. Blackham proposes to substitute the following bill:
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ROADS ON PUBLIC LANDS
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Leonard M. Blackham
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AN ACT RELATING TO TRANSPORTATION; PROVIDING FOR JOINT TITLE TO
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CERTAIN HIGHWAY RIGHTS-OF-WAY BY THE STATE AND LOCAL GOVERNMENTS;
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PROVIDING FOR THE SCOPE OF CERTAIN RIGHT-OF-WAYS; PROVIDING
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DEFINITIONS; AND PROVIDING AN EFFECTIVE DATE.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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72-3-102, as renumbered and amended by Chapter 270, Laws of Utah 1998
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72-3-103, as renumbered and amended by Chapter 270, Laws of Utah 1998
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72-3-104, as renumbered and amended by Chapter 270, Laws of Utah 1998
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72-3-105, as renumbered and amended by Chapter 270, Laws of Utah 1998
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72-3-108, as enacted by Chapter 270, Laws of Utah 1998
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72-5-103, as renumbered and amended by Chapter 270, Laws of Utah 1998
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72-5-104, as renumbered and amended by Chapter 270, Laws of Utah 1998
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72-5-301, as renumbered and amended by Chapter 270, Laws of Utah 1998
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72-5-302, as renumbered and amended by Chapter 270, Laws of Utah 1998
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
72-3-102
is amended to read:
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72-3-102. State highways -- Class A state roads.
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(1) State highways comprise highways, roads, and streets designated under Chapter 4,
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Designation of State Highways.
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(2) State highways are class A state roads.
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(3) The state has title to all rights-of-way for all state highways.
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[(3)] (4) The department has jurisdiction and control over all state highways.
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[(4)] (5) The department shall construct and maintain each state highway using funds made
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available for that purpose.
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Section 2.
Section
72-3-103
is amended to read:
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72-3-103. County roads -- Class B roads -- Construction and maintenance by
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counties.
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(1) County roads comprise all public highways, roads, and streets within the state that:
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(a) are situated outside of incorporated municipalities and not designated as state highways;
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(b) have been designated as county roads; or
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(c) are located on property under the control of a federal agency and constructed or
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maintained by the county under agreement with the appropriate federal agency.
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(2) County roads are class B roads.
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(3) The state and county have joint undivided interest in the title to all rights-of-way for
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all county roads.
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[(3)] (4) The county governing body has jurisdiction and control of county roads within the
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county.
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[(4)] (5) The county shall construct and maintain each county road using funds made
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available for that purpose.
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[(5)] (6) The county legislative body may expend funds allocated to each county from the
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Transportation Fund under rules made by the department.
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[(6)] (7) A county legislative body may use any portion of the class B road funds provided
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by this chapter for the construction and maintenance of class A state roads by cooperative
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agreement with the department.
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[(7)] (8) A county may enter into agreements with the appropriate federal agency for the
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use of federal funds, county road funds, and donations to county road funds to construct, improve,
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or maintain county roads within or partly within national forests.
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Section 3.
Section
72-3-104
is amended to read:
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72-3-104. City streets -- Class C roads -- Construction and maintenance.
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(1) City streets comprise:
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(a) highways, roads, and streets within the corporate limits of the municipalities that are
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not designated as class A state roads or as class B roads; and
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(b) those highways, roads, and streets located within a national forest and constructed or
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maintained by the municipality under agreement with the appropriate federal agency.
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(2) City streets are class C roads.
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(3) Except for city streets within counties of the first and second class as defined in Section
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17-16-13
, the state and city have joint undivided interest in the title to all rights-of-way for all city
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streets.
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[(3)] (4) The municipal governing body has jurisdiction and control of the city streets
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within the municipality.
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[(4)] (5) The department shall cooperate with the municipal legislative body in the
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construction and maintenance of the class C roads within each municipality.
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[(5)] (6) The municipal legislative body shall expend or cause to be expended upon the
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class C roads the funds allocated to each municipality from the Transportation Fund under rules
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made by the department.
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[(6)] (7) Any town or city in the third class may:
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(a) contract with the county or the department for the construction and maintenance of
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class C roads within its corporate limits; or
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(b) transfer, with the consent of the county, its:
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(i) class C roads to the class B road system; and
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(ii) funds allocated from the Transportation Fund to the municipality to the county
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legislative body for use upon the transferred class C roads.
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[(7)] (8) A municipal legislative body of any municipality of the third class may use any
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portion of the class C road funds allocated to the municipality for the construction of sidewalks,
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curbs, and gutters on class A state roads within the municipal limits by cooperative agreement with
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the department.
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Section 4.
Section
72-3-105
is amended to read:
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72-3-105. Maps to be prepared by county -- Indication of roads.
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(1) As used in this section, "class D road" means any road, way, or other land surface route
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that has been or is established by use or constructed and [is] has been maintained to provide
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[reasonably passable] for usage by the public for vehicles with four or more wheels that is not a
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class A, class B, or class C road under this title.
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(2) Each class D road is part of the highway and road system within the state with the same
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force and effect as if the class D road had been included within this system upon its being first
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established or constructed.
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(3) The state and county have joint undivided interest in the title to all rights-of-way for
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class D roads.
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(4) The county governing body has jurisdiction and control of class D roads within the
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county.
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[(3)] (5) Each county shall prepare maps showing to the best of its ability the class D roads
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within its boundaries which were in existence as of October 21, 1976. Preparation of these maps
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may be done by the county itself or through any multi-county planning district in which the county
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participates. [A county shall be given a minimum of two years to complete mapping of the class
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D roads within its boundaries.]
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[(4)] (6) Any class D road which is established or constructed after October 21, 1976, shall
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be reflected on maps prepared as provided in Subsection [(3)] (5).
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[(5)] (7) The county shall provide a copy of any map under Subsection [(3) or (4)] (5) or
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(6) upon completion to the department.
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[(6)] (8) The department shall scribe each road shown on its own county map series. The
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department is not responsible for the validity of any class D road and is not responsible for its
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being inventoried. The department shall also keep on file an historical map record of the roads as
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provided by the counties.
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Section 5.
Section
72-3-108
is amended to read:
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72-3-108. County roads -- Vacation and narrowing.
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(1) A county may, by ordinance, vacate, narrow, or change the name of a county road
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without petition or after petition by a property owner.
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(2) A county may not vacate a county road unless notice of the hearing is:
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(a) published in a newspaper of general circulation in the county once a week for four
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consecutive weeks prior to the hearing; or
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(b) posted in three public places for four consecutive weeks prior to the hearing; and [is]
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(c) mailed to the department and all owners of property abutting the county road.
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(3) The right-of-way and easements, if any, of a property owner and the franchise rights
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of any public utility may not be impaired by vacating or narrowing a county road.
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(4) Except as provided in Section
72-5-305
, if a county vacates a county road, the state's
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interest in the county road is also vacated.
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Section 6.
Section
72-5-103
is amended to read:
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72-5-103. Acquisition of rights-of-way and other real property -- Title to property
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acquired.
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(1) The department may acquire any real property or interests in real property necessary
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for temporary, present, or reasonable future state highway purposes by gift, agreement, exchange,
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purchase, condemnation, or otherwise.
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(2) (a) Title to real property acquired by the department or the counties, cities, and towns
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by gift, agreement, exchange, purchase, condemnation, or otherwise for highway rights-of-way or
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other highway purposes may be in fee simple or any lesser estate or interest.
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(b) If the highway is a county road, city street, or right-of-way described in Title 72,
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Chapter 5, Part 3, Rights-of-way Across Federal Lands Act, title to all interests in real property less
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than fee simple held under this section is held jointly by the state and the county, city, or town
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holding the interest.
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(3) A transfer of land bounded by a highway on a right-of-way for which the public has
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only an easement passes the title of the person whose estate is transferred to the middle of the
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highway.
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Section 7.
Section
72-5-104
is amended to read:
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72-5-104. Public use constituting dedication -- Scope.
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(1) A highway [shall be deemed to have been] is dedicated and abandoned to the use of
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the public when it has been continuously used as a public thoroughfare for a period of ten years.
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(2) The dedication and abandonment creates a right-of-way held by the state in accordance
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with Sections
72-3-102
,
72-3-103
,
72-3-104
,
72-3-105
, and
72-5-103
.
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(3) The scope of the right-of-way is that which is reasonable and necessary to ensure safe
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travel according to the facts and circumstances.
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Section 8.
Section
72-5-301
is amended to read:
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72-5-301. Definitions.
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As used in this part:
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(1) "Acceptance," "acceptance of a right-of-way for the construction of a highway over
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public lands, not reserved for public uses," or "accepted" means one or more of the following acts
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prior to October 21, 1976:
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(a) by the state or any political subdivision of the state:
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(i) construction or maintenance of a highway;
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(ii) inclusion of the highway in a state, county, or municipal road system;
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(iii) expenditure of any public funds on the highway;
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(iv) execution of a memorandum of understanding or other agreement with any other
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public or private entity or an agency of the federal government that recognizes the right or
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obligation of the state or a political subdivision of the state to construct or maintain the highway
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or a portion of the highway; or
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(v) (A) the acceptance at statehood of the school or institutional trust lands accessed or
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traversed by the right-of-way; or
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(B) the selection and receipt by the state of a clear list, indemnity list, or other document
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conveying title to the state of school, institutional trust lands, or other state lands accessed or
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traversed by the highway;
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(b) use by the public for a period in excess of 10 years in accordance with Section
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72-5-104
; or
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(c) any other act consistent with state or federal law indicating acceptance of a
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right-of-way.
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(2) (a) "Construction" means any physical act of readying a highway for use by the public
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according to the available or intended mode of transportation, including, foot, horse, vehicle,
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pipeline, or other mode.
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(b) "Construction" includes:
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(i) removing vegetation;
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(ii) moving obstructions, including rocks, boulders, and outcroppings;
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(iii) filling low spots;
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(iv) maintenance over several years;
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(v) creation of an identifiable route by use over time; and
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(vi) other similar activities.
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(3) (a) "Highway" means:
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(i) any road, street, trail, or other access or way that is open to the public to come and go
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or transport water at will, without regard to how or by whom the way was constructed or
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maintained; and
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(ii) appurtenant land and structures including road drainage ditches, back and front slopes,
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turnouts, rest areas, and other areas that facilitate use of the highway by the public.
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(b) "Highway" includes:
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(i) pedestrian trails, horse paths, livestock trails, wagon roads, jeep trails, logging roads,
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homestead roads, mine-to-market roads, alleys, tunnels, bridges, and all other ways and their
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attendant access for maintenance; and
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(ii) irrigation canals, waterways, viaducts, ditches, pipelines, or other means of water
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transmission and their attendant access for maintenance.
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(4) "Maintenance" means any physical act of upkeep of a highway or repair of wear or
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damage whether from natural or other causes[.], including the following:
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(a) vertical and horizontal alignment alterations to meet applicable safety standards;
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(b) widening an existing road or flattening of shoulders or side slopes to meet applicable
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safety standards;
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(c) grooming and grading of the previously constructed road surface;
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(d) establishing and maintaining the road crown with materials gathered along the road;
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(e) filling ruts;
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(f) spot filling with the same materials of the road, or improved materials;
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(g) leveling or smoothing washboards;
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(h) clearing the roadway of obstructing debris;
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(i) cleaning culverts, including head basins and outlets;
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(j) resurfacing with the same or improved materials;
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(k) installing, maintaining, repairing and replacing rip rap;
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(l) maintaining drainage;
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(m) maintaining and repairing washes and gullies;
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(n) installing, maintaining, repairing, and replacing culverts as necessary to protect the
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existing surface from erosion;
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(o) repairing washouts;
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(p) installing, maintaining, repairing and replacing marker posts;
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(q) installing, maintaining, and repairing water crossings;
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(r) installing, maintaining, and repairing and replacing cattle guards;
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(s) installing, maintaining, and repairing and replacing road signs;
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(t) installing, maintaining, and repairing and replacing road striping;
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(u) repair, stabilization and improvement of cut and fill slopes;
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(v) application of seal coats; and
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(w) snow removal.
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(5) "Public lands not reserved for public uses" means any federal lands open to entry and
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location.
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(6) "R.S. 2477 right-of-way" means a right-of-way for a highway constructed in this state
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on public lands not reserved for public uses in accordance with Revised Statute 2477, codified as
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43 U.S.C. Section 932, and accepted by the state or a political subdivision of the state prior to
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October 21, 1976.
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Section 9.
Section
72-5-302
is amended to read:
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72-5-302. Rights-of-way across federal lands -- Title -- Presumption -- Scope.
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(1) This part applies to all R.S. 2477 rights-of-way.
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(2) The state and its political subdivisions have title to the R.S. 2477 rights-of-ways in
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accordance with Sections
72-3-102
,
72-3-103
,
72-3-104
,
72-3-105
, and
72-5-103
.
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(3) (a) Acceptance of a right-of-way for the construction of a highway over public lands,
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not reserved for public uses, is presumed if the state or a political subdivision of the state makes
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a finding that the highway was constructed and the right-of-way was accepted prior to October 21,
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1976.
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(b) The existence of a highway establishes a presumption that the highway has continued
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in use in its present location since the land over which it is built was public land not reserved for
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public use.
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(4) (a) Unless specifically determined by the state or a political subdivision of the state
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with authority over the R.S. 2477 right-of-way, the scope of the R.S. 2477 right-of-way is that
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which is reasonable and necessary to ensure safe travel [for all uses that occurred before October
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21, 1976] according to the facts and circumstances.
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(b) The scope of the R.S. 2477 right-of-way includes the right to widen the highway as
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necessary to accommodate the increased travel associated with those uses, up to, where applicable,
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improving a highway to two lanes so travelers can safely pass each other.
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[(c) The width of an R.S. 2477 right-of-way used for vehicular travel may not be less than
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the setback standards for wilderness boundaries along existing roads as described in Bureau of
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Land Management Manual H-8560-1, Management of Designated Wilderness Areas, dated July
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27, 1988, as follows:]
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[(i) high standard paved highways shall be 300 feet from the centerline;]
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[(ii) high standard logging roads shall be 100 feet from the centerline; and]
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[(iii) low standard logging, jeep, maintenance, dirt roads used for right-of-way, or similar
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roads shall be 30 feet from the centerline.]
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(5) The safety standards established by the Department of Transportation in accordance
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with Section
72-6-102
apply to all determinations of safety on R.S. 2477 rights-of-way used for
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vehicular travel.
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Section 10. Effective date.
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If approved by two-thirds of all the members elected to each house, this act takes effect
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upon approval by the governor, or the day following the constitutional time limit of Utah
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Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto, the
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date of veto override.
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