County commissioners weigh in on proposed road bill

 By Kay Braddock

State lawmakers will listen to testimony this week on a proposed bill that would require landowners to seek permission before installing a gate, sign, fence or other barrier on a road. The hearing on House Bill 290, sponsored by Rep. Jon Sesso, D-Butte, is scheduled to go before the transportation committee on Wednesday, Feb. 2 at 3 p.m.
“I’m expecting a very robust hearing,” Sesso said during a Tuesday morning telephone interview.
Although the bill is already drawing criticism from private property proponents, Sesso said the bill’s intent is to protect both landowners and governing agencies.
“Nobody has really contested the purpose of my bill,” he said. “They are worried about some of the details and the unintended consequences.”
The bill originated after a popular, county maintained road in Silver Bow County was shut down when a landowner placed a gate on the road. The county removed the gate setting in motion a legal battle between the landowner and the county. Ultimately the road remained open.
“I want to protect the landowner who wants to close the road, from indiscriminate lawsuits,” Sesso said. “At the same time I want to protect the governing body in their responsibility to protect a public right if we’ve spent money in building a road or maintaining it.”
After landowners present their reasoning for closing the road, HB 290 would then require the board of county commission to research the road’s historical information. The board would then decide whether the barrier could be installed or not.
“I just think that if a public investment has been made in a road, it should be left open,” Sesso said. “If a public investment has not been made and the private guy wants to close it, well then, he should be able to close it.”
One of the details that concern private property proponents is the bill’s assumption that all roads are public unless proven otherwise. It’s a similar concern Prairie County commissioners addressed in their letter to Rep. Lee Randall, R-Broadus, who serves as vice chair of the transportation committee.
“At present time the bill would require every landowner to notify the commissioners of their intent on posting or fencing or gating,” the letter from the Prairie County Board of Commission states. “That would be very unreasonable and a nightmare for commissioners as well as their constituents.”
Commissioners point to the large number of two track roads existing within rural counties, like Prairie County, that aren’t maintained by county road crews. Requiring notice on roads like these would be burdensome to landowners and their respective governing body, according to commissioners.
  “If a county invests into a road for 5 years or more without protest, then purpose of use should have no merit,” the commissioners’ letter goes on to say. “Tax dollars used for 5 years and it should be a done deal – that road is open to the public.”
While Prairie County continues their road easement project, obtaining 72 percent of their requested easements from landowners on roads that run through private property, the county also finds itself ensnared in a legal battle on a road closure.
In their letter commissioners called on Randall to amend the bill, by providing a provision that addresses roads with “invested public tax dollars” while at the same time protecting private property rights by addressing the issues of recreational roads and trails that have no tax dollars invested in them.
Sesso said he’s open to amendments and has already prepared a couple of changes that he would like to make to the bill. One change would be to describe historical information on a road to include construction, maintenance and use of the road. The other change would state the bill only applies to road closures that occur after the bill’s passage.
Although the hearing on the bill is scheduled for Wednesday, Randall stated in an email that no action will likely be taken on the bill until Friday. 
“I am familiar with the situation in Prairie County,” Randall said in a written statement. “I will take it into consideration as we move forward.”
HB 290 cannot prevent legal road battles from occurring, but Sesso hopes the bill has merit to be considered by those on both sides of the issue.
“You can’t disarm an individual from seeking judicial review,” he said, adding, “but I’m hoping I can settle the issue down a little bit.”

Published Feb. 2, 2011

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