a-ry 4;mil"* bill, which was never meant to say what Mr. Kane now infers. And in the end, the AG's analysis District 17

Transcription

1 4;mil"* a-ry Paul Woods, President Rebecca W. Arnold, Vice President Sara M. Baker, Commissioner Jim D. Hansen, Commissioner Kent Goldthorpe, Commissionere" rrr*rtd*ldo * nana January 31,2017 Representative John Gannon District 17 Idaho House of Representatives P.O. Box Boise, ID Dear Representative Gannon, Thank you for your January 25,2017 letter and for providing the Ada County Highway District a chance to review the legal opinion from Brian Kane, Assistant Chief Deputy for the Attorney General of Idaho, about sidewalk snow removal. We find the opinion to be deeply flawed and to be impractical for implementation in the real world, as the attached analysis from Steven B. Price, ACHD General Counsel, explains. The AG's opinion mixes the specific law overseeing the Ada County Highway District with laws covering Idaho's smaller highway districts and transportation statutes in general, arriving at a faulty conclusion. It also appears to misinterpret the intent of the Idaho Legislature on a 2013 bill, which was never meant to say what Mr. Kane now infers. And in the end, the AG's analysis overlooks that only the cities have the police power to compel sidewalks to be cleared, a task the ACHD would find impossible to accomplish over more than 4,300 miles of sidewalk throughout Ada County. Moreover, I take exception to your characteization of ACHD's response being lacking, particularly in the face of a record-breaking, snow-and-cold weather event that has not been seen for many decades. ACHD crews worked around the clock from mid-december through most of January, including Christmas Day, Christmas Eve and New Year's Day, to keep the 1,632 miles of major roads open. The ACHD Commission approved the plowing of more than 3,150 miles of neighborhood streets as the unusual, sub-freezing temperatures prevented the typical melt off. Perhaps you were unaware that ACHD hired 14 road graders from construction firms to help with the response, as well as tapping numerous resources from our local government partners. If you have doubts about the condition of Ada County's roadways, I suggest you survey those of surrounding counties; we have received many admiring comments from non-ada County residents. Given the challenge, we are proud of the response from our hard-working employees to this year's abnormally harsh weather. By the way, while we appreciate you sharing Spokane's snow response plan, you should know that ACHD always plows before six inches of snow hits the ground. Ada County Highway District Adams Street. Garden City, ID PH FX

2 Representative John Gannon January 30,2017 Page2 of2 In the end, the differing parts of existing Idaho law, particularly Title 40, contain a number of ambiguities, internal conflicts and obsolete provisions, which obviously made the AG's task more difficult in responding to your request. Last year, ACHD initiated an effort for a top-tobottom rewrite of Title 40, because of the issues created by 30-plus years of fragmented amendments to the law. We have met with House Leadership and the Chairmen of the House and Senate Transportation Committees seeking their input. We hope we can count on your support in this effort. which will benefit all of the citizens of the State of Idaho. Sincerely, Q*t-R-U*''t- Paul Woods President ACHD Commission cc: Chairman of the Senate Transportation Committee, Bert Brackett Chairman of Transportation& Defense, Joe Palmer House Majority Leader, Mike Moyle Assistant Chief Deputy Attorney General, Brian Kane

3 4-ry 4;-.mjj.x* Paul Woods, President Rebecca W. Arnold, Vice President Sara M. Baker, Commissioner Jim D. Hansen, Commissioner Kent Goldthorpe, CommissionerCort* r*de'atdo * nwa January 3I,20t7 Commissioners: RE: Sidewalk Snow Removal The Ada County Highway District (" ACHD") is in receipt of Representative Gannon's undated letter and Assistant Chief Deputy Brian Kane's two-page memo regarding sidewalk snow removal dated January 23,2017. The Assistant Chief Deputy Attorney General's memo concludes that single countywide highway districts like ACHD are responsible for snow removal from all sidewalks for which they have jurisdiction. For the reasons stated herein, ACHD disagrees with that conclusion. THn Excr,uslvn Srlrurony DESIGN, ConsrnucrloN, RncoNsrnucrloN, AND M.qlNrnNlNCE DurrES of STNGLE CouNTy-Wrnn Hlcnwav Drsrnrcrs ACHD is a single county-wide highway district governed by Idaho Code 45-I40I et seq.l As the Assistant Chief Deputy Attorney General acknowledged in his memo, Idaho Code $ 40-t415, entitled in part " Responsibilities of single county-wide highway districts", sets forth the design, construction, reconstruction, and maintenance duties of single county-wide highway districts. That provision of the statute provides the maintenance obligations placed on single county-wide highway districts: 1) County-wide highway districts organized under the provisions of this chapter, within the limits of any city shall be responsible for the design, construction, reconstruction and maintenance of city rights-of-way and accompanying curbs, gutters, culverts, sidewalks, paved medians, bulkheads and retaining walls. Within city rights-of-way. design. construction. reconstruction and maintenance shall include: a) Traffic and safety engineering for both motorist and pedestrian traffic: b) Procurement and installation of highway lighting where it is primarily of benefit to the motorist. Energy costs and maintenance of lighting shall subsequentlv be a function of the cit)': T ACHD recognizes that Idaho Code $ incorporates all of the powers and duties provided for in Title 40, Chapter 13. ("The highway commissioners of a county-wide highway district shall exercise all of the powers and duties provided in chapter 13 of this title"). But that does not change the analysis as set forth herein because there are no sidewalk snow removal maintenance obligations in Title 40, Chapter 13 either. Ada County Highway District Adams Street. Garden City, ld PH FX

4 Commissioners - Snow Removal January 31,2017 Page 2 of 6 c) Procurement. installation. operation and maintenance of traffic control devices where they are needed for traffic control: and d) Drainage where it is necessary for motorist safety or necessary for right-of-way maintenance. Emphasis added). As also acknowledged by Assistant Chief Deputy Attorney General, nowhere in Idaho Code $ 40-I4I5 is "snow removal" or anything tangentially related to snow removal referred to, let alone stated, as a statutory duty placed on single county-wide highway districts like ACHD. After that, however, the Assistant Chief Deputy Attorney General's limited two-page analysis takes a wrong turn. Ignoring the above-referenced specific definition of "design, construction, reconstruction and maintenance" set out plainly in Idaho Code $ (1), the Assistant Chief Deputy Attorney General relies on a general definition" of "maintenance" in Idaho Code $ (3) to conclude that county-wide highway districts are required to remove snow from all sidewalks under their jurisdiction. This analysis is in error for at least four reasons. First, where a statute has both a specific and general definition of a term or phrase, it is the specific definition that controls. Second, contrary to the Assistant Chief Deputy Attorney General's conclusion otherwise, his interpretation of Title 40 was not the intent of the legislature. Third, cities, not county-wide highway districts, have the requisite police power to regulate and enforce snow removaland they all do. And finally, practically speaking, the flawed interpretation sets out an obligation on ACHD that would be impossible for it, or any other governmental entity for that matter, to achieve. Unfortunately, the opinion provided to you is just not accurate. The Specific Definition of Design, Construction, Reconstruction and Maintenance in Idaho Code S (1) Controls The specific definition of "design, construction, reconstruction and maintenance" is set out in Idaho Code $ (1) by the language "shall include" and a list of duties required of single countywide highway districts. The use of the words " shall include" before a list of duties denotes an exhaustive list. See Saint Alphonsus Reg'l Med. Ctr. v. Gooding Cnty.,159 Idaho 84,87,356P.3d371, 380 (2015) (" Idaho has recognized the rule of expressio unius est exclusio alterius-where a constitution or statute specifies certain things, the designation of such things excludes all others.") internal quotation omitted). Only when language such as " but not limited to" follows "shall include" is the list not exclusive. See State v. Straub,292P.3d273,28O, 153 Idaho 882, 889 ( Idaho 2013) ( noting the significance of the words "but is not limited to" in deciding whether a list of items in statute was exclusive); see also State v. Chongphaisane,2Ol3 WL , at x3 ( Idaho Ct. App. 2OL3) (noting that a list is not exhaustive by the words " shall include, but not be limited to"). This specific definition in $ (l) controls over any general definition, including over the generaldefinitionof"maintenance"$40-1i4(3). See,e.g.,Ausmanv.State,l24ldaho839,842,864 P.2d 1126, II29 (1993) (" A specific statute... controls over a more general statute when there is any conflict between the two or when the general statute is vague or ambiguous"); City of Sandpoint v. Sandpoint Indep. Highway Dist., 126 Idaho 145, I49,879 P.2d 1078, 1082 ( 1994) ( holding that "when there are specific statutes addressing an issue, those statutes control over more general statutes."). The Assistant Chief Deputy Attorney General's analysis should have started and ended with unambiguous language of $ (l).

5 Commissioners - Snow Removal January 3l,2Ol7 Page 3 of 6 The Legislative History With Regard to the 2013 Amendment of S (3) Shows There Was No Legislative Intent to Make Sidewalk Snow Removal a Duty of Highway Districts At the very least, an ambiguity exists in Title 40 because of the specific definition of "design, construction, reconstruction and maintenance" in $ and the competing general definition of maintenance" in $ 40-1 I4Q).2 And where a statute is ambiguous, it is appropriate to look to the legislative history because, as the Assistant Chief Deputy Attorney General notes, "[ a] fundamental rule of statutory interpretation is to construe a statute to give force and effect to the Legislature's intent citing Statev.HagermanWaterRightOwner.Inc.,L3UldahoT2T,94TP.2d4OO(1997)). Seealso Hammer v. City of SunValley, No ,2016 WL , at * 5 ( Idaho Dec. 2I,2016) (" If the statute is ambiguous, then it must be construed to mean what the legislature intended for it to mean"); BHC Intermountain Hosp., Inc. v. Ada Cnty.,150 Idaho 93,95,244P.3d237,239 (2010) (" a statute that is ambiguous must be construed with legislative intent in mind, which is ascertained by examining... its legislative history."). A review of the legislative history of the 2013 amendment to $ (3) confirms that there was absolutely no intent to add snow removal to the statutory duties of single county-wide highway districts. That concept was never contemplated, much less addressed, in creating or debating the amendment. Instead, the legislative history demonstrates that the legislative intent was only to address private property rights and governmental jurisdiction by prescription under Idaho Code $ Idaho Code $ 40-lI4(3) was amended in 2013 by House Blll32I ("H.8. 32I"). The extent of the amendment made is as follows: Maintenance' means to preserve from failure or decline, or repair, refurbish, repaint or otherwisekeepanexistinghighwayor@inasuitablestatefor use including. without limitation. snow removal. sweeping, litter control. weed abatement and placement or repair of public safety signage. The stated purpose for H.B. 321 was "to address right-of-way issues brought forward during the testimony and discussion before the Senate Transportation Committee in the 2Ol2legislative session relating to House Bill No. 628, as amended." 2013 Idaho Sess. Laws Ch.239. House Bill No. 628 H.B. 628") was a bill "designed to address the Idaho Supreme Court's holding rn Halvorson v. North Latah County Highway District,151 Idaho 196 ( 2011), which held that prescriptive rights-of-way across private land are no less than 50 feet in width unless an owner can prove they were established prior to enactment of Idaho Code, Section " RS21341 Statement of Purpose and Fiscal Note (H.B. 628 introduced on March 2,2012). Further, H.B. 628 only sought to amend Idaho Code $ 4O-231,2,the section setting the presumptive width of state highways, and did not seek to amend or modify $ See H.B. 628 (2012). Stated plainly, there was no discussion of sidewalk snow removal or the expansion of highway district duties in that bill. Likewise, H.B. 321's official statement of legislative intent does not mention snow removal or highway district duties. On the contrary, the legislative history shows that the amendment was aimed at t ACHD recognizes that Title 40 is not a model of clarity. With the various piecemeal changes to the law made over the last number of decades, a number of perceived or actual inconsistencies exist in the statutes. ACHD is currently working to craft proposed legislation to simplify and clarify Title 40.

6 Snow Removal Commissioners January 3l,2Ol7 Page 4 of 6 clarifying the relationship between private property rights and the ability for highway districts to prescriptively acquire real property under Idaho Code $ (2). See 2Ol3Idaho Sess. Laws Ch. 239 It is further the intent of the Legislature to protect private property rights and ensure adequate public rights-of-way for transportation, utility and irrigation and other public facilities."). The focus on the interplay between private property rights and the prescriptive creation of highways is also found in H.B. 32I's Statement of Purpose. SeeRS22299 Statement of Purpose and Fiscal Note ( H.B. 321 introduced on March 19,2013). The statement of legislative intent and Statement of Purpose both specifically note that an October I, 2OI2 hearing of the interim Right-of-Way Task Force informed the substance and direction of H.B Atthat hearing, testimony focused on the statutory presumption of road width and the disagreement between stakeholders on the wisdom, scope, and applicability of that presumption., See generally, Right of Way Task Force hearing contains only 1 1 mentions I0lll20l2 Official Minutes. The 33-page transcript from that of " snow" or " snow removal," and none of those are in the context of requiring county highway districts to perform snow removal. Rather, snow removal is discussed in terms of right-of-way width, and the need for highway districts to have space beyond the roadway for snow storage, signage placement, and even pedestrian and bicycle safety. See id., at 20. The hearing minutes also note that this legislative effort was in response to the recent-at the time-idaho Supreme Court decision in Halvorson v. North Latah County Highway District, an opinion addressing the width of ahighwayrighrof-way. 151 Idaho 196,205,254P.3d497,506(2011). Incontrasttothelimited mentions of snow, the Halvorson opinion was referenced 100 times in the hearing minutes. See generally,right of Way Task Force I0lIl20I2 Official Minutes. Therefore, what is clear from the legislative record is that the thrust of H.B. 32I, and the amendment to $ 40-l l4(3), was directed at property rights and right-of-way width by prescription. All of this only makes sense because the $ (3) definition of "maintenance" addresses issues that are relevant to prescriptive rights. "[ S]now removal, litter control, weed abatement and placement or repairs of public safety signage" are all issues related to the scope of highway districts prescriptive rights compared to that of the property rights of adjacent land owners. The Legislature did not intend to include snow removal, litter control and weed abatement as creating an affirmative maintenance obligation on highway districts and the taxpayers they represent. Had the Legislature intended to modify the affirmative maintenance obligations of single county- wide highway districts, it would not have addressed the issue in tweaking the general definition of maintenance in $ 40-IL4(3). It would have modified the enabling statute for single county-wide highway districts, specifically adding to the enumerated design, construction, reconstruction and maintenance duties set out in $ (1). Undisputedly, the Legislature did not do that. Cities Have The Inherent Police Power That Highway Districts Do Not-As Such Cities Have Always Appropriately Regulated Sidewalk Snow Removal Highway districts, are special purpose districts. See Worley Highway Dist. v. Kootenai County, 104Idaho 833,834,663P.2d 1135, 1137 ( Ct. App. 1983); see also Kimama Highway Dist. v. Oregon Short Line R. Co., 298 F. 43I, (9th Cir. 1924). As special purpose districts, highway districts are not political municipalities and are " not created for the purpose of government." Shoshone Highway Dist. of Lincoln County v. Anderson,22ldaho 109, ---, I25P.2I9,223 ( 1912). A highway district, like ACHD, " is created for a special purpose, to wit, the assessment of property within the district for the sole and only purpose of improving the highways within the district." Id. Because highway districts are

7 Commissioners - January 3l,2Ol7 Page 5 of 6 Snow Removal created for a special purpose, their authority is specifically limited to the powers and duties set forth in the enabling statute. Here, again, the relevant statute is Idaho Code $ (1). Cities, on the other hand, have police powers as allowed by ldaho's Constitution. See ID CONST Art. XII, $ 2 ("Any county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws"); see also Idaho Code $ et. seq. Police power " embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals, or the public safety." Chicago, B. & Q. Ry. Co. v. People of State of Illinois,20O U.S. 561,592 (1906). Specifically, Title 50 provides that cities have the authority to create regulations and ordinances to "control all encroachments upon and into sidewalks" and to "remove all obstructions from the sidewalks." Idaho Code $ Because Title 50 provides that "[c]ities governed by this act shall... exercise all powers and perform all functions of local self-government in city affairs as are not specifically prohibited by or in conflict with the general laws of the constitution of the state of Idaho", see Idaho Code g 5O-3I4, and because of the limited and specific duties placed upon single county-wide highway districts in Idaho Code $ (1), cities within Ada County, not ACHD, have the inherent police power to issue sidewalk snow removal ordinances, which they have done. See e.9., Boise City Code ( states that the owner of any building or lot is to keep the sidewalks in front of their property clear of snow); Meridian City Code (noting the owner of property abutting a sidewalk is responsible for snow or ice removal). It is also significant that the amendment to $ (3) did nothing to void or invalidate these city ordinances created under Title 50 and inherent police power. Interpreting Title 40 to Require Single County-Wide Highway Districts to Have Sidewalk Snow Removal Duties is Palpably Absurd Practically speaking, the law cannot be that single county-wide highway districts are responsible for sidewalk snow removal for all sidewalks under their jurisdiction. ACHD, for example, has " design, construction, reconstruction and maintenance" responsibilities for approximately 4300 miles of sidewalk in Ada County. A statutory construction of Title 40 that required ACHD to remove snow from all of these sidewalks-which would span a distance of Boise to New York City and back-is a palpably absurd result and that should be rejected. See e.g., Ada County Highway Dist. v. Total Success Invs., LLC, l45idaho 360,368, 179 P.3d 323,331 (2008) ( noting that the Idaho Supreme Court "disfavors a statutory construction that would lead to absurd or unreasonably harsh results"). Certainly the Legislature did not intend this overly burdensome obligation on single county-wide highway districtsespecially given their'limited resources and budgets. Ir THnns RBwrNs A DrspurE Wrur THn PosruoN TrrAT SrNcr,n CouNrv-WIDE HIGHwAY Drsrrucrs Do Nor Hrvn Srorw.qlr SNow Rnnnov.q,L Duuns, Counr InrnRvnNuoN M,tv BB Rreurnno The opinion of Assistant Chief Deputy Attorney General Kane holds no binding or precedential weight. HollyCareCenterv.State,Dept.ofEmployment,714P.2d45,5I,110Idaho76,82(1986) Opinions of the attorney general are considered advisory and not binding"). However, it is important for both you and the citizens of Ada County to understand that the cursory conclusion reached by the Assistant Chief Deputy Attorney General is inaccurate.

8 Commissioners - January 3l,2Ol7 Page 6 of 6 Snow Removal If there remains a disagreement with ACHD's position that: (1) there is no relevant ambiguity in Title 40; (2) sidewalk snow removal is not a duty of single county-wide highway districts; or (3) that snow removal is to be regulated by ordinance under municipal police power, then any interested party can seek a declaratory judgment from a court of competent jurisdiction to judicially validate the interpretation of Title 40 set out in this letter. Starting last year, ACHD initiated an extensive effort to rewrite Title 40 because of the significant number of ambiguities, internal conflicts and obsolete provisions in Title 40, which have developed over the past 30+ years of fragmented amendments. As you know, we have met with the House Leadership and Chairmen of the House and Senate Transportation Committees seeking their input. We hope that we can count on Representative Gannon's support in revising Title 40 to clear up all the ambiguities, which will benefit all the citizens of the State of Idaho. Very truly yours, ADA COUNTY HIGHWAY DISTRICT Steven cc: Director Bruce S. Wong