Session of 2000
         
SENATE BILL No. 538
         
By Committee on Energy and Natural Resources
         
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  9             AN  ACT enacting the rails to trails safety and protection act; relating to
10             certain recreational trails; concerning certain requirements relating
11             thereto; prohibiting certain acts and providing remedies therefor; re-
12             pealing K.S.A. 1999 Supp. 58-3211 through 53-3216.
13      
14       Be it enacted by the Legislature of the State of Kansas:
15             Section  1. (a) This act may be cited as the rails to trails safety and
16       protection act.
17             (b) The provisions of this act apply to all governmental and private
18       entities that own or are responsible for the operation of a recreational
19       trail, no matter its type or designation.
20             Sec.  2. As used in this act:
21             (a) "County commission" includes the city governing body of any city
22       through which a recreational trail passes.
23             (b) "Responsible party" refers to the legal entity responsible for the
24       development, operation and maintenance of a recreational trail. Any dis-
25       pute as to who is the responsible party shall be resolved in favor of the
26       trail entity holding the marketable title to the trail property.
27             Sec.  3. The responsible party, prior to entering into any trail-use
28       agreement or trail development, shall:
29             (a) Provide the state corporation commission and the office of the
30       Kansas attorney general the legal description of all properties proposed
31       to be included in any proposed recreational trail.
32             (b) Inform the county commissions and city governments in writing
33       of any intended recreational trail that would affect such county or city
34       and provide proof of a completed title search and marketable title as proof
35       of ownership; quitclaim deeds alone shall not be accepted by state, county
36       or city governments as proof of ownership of abandoned railroad rights-
37       of-way to be used as recreational trails.
38             (c) Submit to the county commission of each county where the rec-
39       reational trail is proposed or exists, upon registering title to the trail, a
40       written agreement that states an acknowledgment of the responsible
41       party's duty to comply with and enforce all provisions of this act and all
42       other existing state law that may relate to operation of and access to the
43       trail property.


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  1             (d) If the responsible party is not a government entity, the responsible
  2       party shall file with the county commission of each county where a portion
  3       of the recreational trail is or is proposed to be located:
  4             (1) Proof of personal injury and property liability insurance in the
  5       amount that the county commission determines reasonable and sufficient.
  6       Proof of insurance shall be submitted in writing to the affected county
  7       commissions when title to the trail is registered and annually thereafter.
  8             (2) A document of financial assurance. The document may be a letter
  9       of credit, a performance bond or an escrow account as defined in Kansas
10       statutes, and made payable to the affected county or counties upon the
11       county's or counties' determination by resolution that the responsible
12       party is not complying with the requirements set forth in this act. Proof
13       of financial assurance must be submitted to the affected county commis-
14       sioners when title to the trail is registered and annually thereafter.
15             (e) Before commencing development or operation of a recreational
16       trail, the responsible party shall prepare a project plan. The project plan
17       shall be made available to the county commissioners of affected counties
18       and the public at least two weeks prior to the first public hearing, as
19       specified below. The project plan shall include:
20             (1) The name and address of each responsible party.
21             (2) The registered agent for the responsible party.
22             (3) An itemized estimate of the costs of the project.
23             (4) The names and addresses of all sources of funding for the project,
24       whether private or governmental.
25             (5) A map or maps of the recreational trail.
26             (6) The amount of property tax that was previously assessed for the
27       property to be used for the recreational trail.
28             (f) The responsible party shall give written notice to each and every
29       adjacent property owner that the responsible party intends to develop
30       and use the abandoned railroad right-of-way corridor or other type of
31       property for a recreational trail. The responsible party shall use the ad-
32       dresses to which real estate tax statements are sent, as maintained by
33       county officials, for such notices. Such notice shall be given by first-class
34       mail unless the notice is returned undelivered, in which case a further
35       notice shall be given by certified mail. Further additional notice shall be
36       published once each week for three consecutive weeks in the official
37       newspaper of each county where the trail or a portion of the trail is pro-
38       posed or will be located.
39             (g) The responsible party shall hold a public hearing and receive pub-
40       lic comment regarding corridor use or trail development, or both. The
41       public hearings shall be held no sooner than 10 days following the third
42       publication of notice in newspapers under subsection (f) and must be
43       completed by 30 days following the third such publication. The hearing


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  1       shall be open to the public and notice of the hearing shall be given, an
  2       agenda provided and the hearing conducted in the manner provided by
  3       law for meetings subject to the Kansas open meetings act. At least three
  4       public hearings shall be held in each county where the trail or portion of
  5       the trail is to be located. At least one of the meetings must be in the
  6       evening of a work day. A transcript of the public hearings shall be pre-
  7       pared and provided to the county commissions of affected counties and
  8       to any person requesting a copy.
  9             Sec.  4. (a) The responsible party shall construct, maintain, operate
10       and administer the recreational trail and any associated real property and
11       infrastructure in accordance with the requirements of this act. Infrastruc-
12       ture includes, but is not limited to, all bridges, culverts, roadway inter-
13       sections and crossings in the trail corridor.
14             (b) The responsible party shall:
15             (1) Provide reasonable and prudent means for drainage, flood control
16       and the use of easements for crossing the trail between adjacent prop-
17       erties, or cause maintenance thereof by other parties that have assumed
18       contractual responsibility therefore, such as contractors for bulldozing,
19       grading and related activities hired as outside contractors.
20             (2) Install and maintain signs on the trail for education, safety, traffic
21       control and other warnings, including trespass warnings, and messages
22       that are pertinent to the safety and information of trail users, adjacent
23       property owners and the general public.
24             (3) Control noxious weeds in accordance with K.S.A 2-1314, and
25       amendments thereto, in the trail corridor.
26             (4) Provide for the safety, use and accessibility of existing easements,
27       utility facilities and access licenses along the recreational trail.
28             (5) Provide for litter control and the enforcement of laws prohibiting
29       littering along any recreational trail, including, but not limited to, trail-
30       user education and signs concerning laws prohibiting littering and the
31       provision of trash receptacles and the clean-up of litter. A county com-
32       mission shall have the right to clean up any litter or trash if the responsible
33       party does not correct the problem within 10 working days after written
34       notice thereof by the county commission. All costs associated with the
35       cleanup shall be charged to the responsible party and may be recorded
36       as a tax lien if the charges are not paid in 60 days.
37             (6) Develop and maintain the recreational trail in a condition that
38       does not create a fire hazard, including, but not limited to, fallen or dead
39       trees, brush and unmown or overgrown and unmaintained native and
40       nonnative grasses. Affected county commissions shall require the respon-
41       sible party to immediately remove or eliminate all such fire hazards. A
42       county commission shall have the right to remove or eliminate such haz-
43       ards if the responsible party does not correct the problem within 10 work-


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  1       ing days after written notice thereof by the county commission. All costs
  2       associated with elimination of a fire hazard shall be charged to the re-
  3       sponsible party and may be recorded as a tax lien if the charges are not
  4       paid in 60 days.
  5             (7) Install and maintain between the trail and adjacent property fenc-
  6       ing corresponding in class to that maintained on the remaining sides of
  7       such adjacent property and shall maintain all existing fencing between
  8       the trail and adjacent property. If an adjacent property is not fenced, the
  9       responsible party, on request of the adjacent property owner, shall pay
10       1/2 the cost of installing fencing between the trail and such property
11       owner's adjacent property with a fence of the class requested by such
12       property owner. Nothing in this act shall preclude an adjacent property
13       owner from taking reasonable measures immediately necessary to tem-
14       porarily repair broken or damaged fencing enclosing livestock or property.
15       The adjacent property owner shall notify the responsible party, in writing,
16       that a temporary repair was necessary and specify the approximate loca-
17       tion where the temporary repair was made. The responsible party shall
18       make a permanent repair within 30 days after receiving such notice. The
19       responsible party shall reimburse adjacent property owners for expenses
20       involved within 30 days after receiving notice of broken or damaged fenc-
21       ing. The responsible party shall reimburse adjacent property owners for
22       expenses and labor involved in making any repair or for the entire expense
23       of the hiring a contractual entity to make repairs. Payment shall be made
24       to an adjacent property owner within 30 days of receipt of written ex-
25       penses by the responsible party. The county fence viewers, in accordance
26       with K.S.A. 29-201 through 29-203, and amendments thereto, shall settle
27       disputes regarding the cost or the appropriateness of the type of fence
28       requested or repairs made to existing fencing.
29             (8) Complete the development of a recreational trail within a period
30       of time equal to one year times the number of counties in which the
31       recreational trail is located, unless the length of the trail in a county is
32       less than two miles, in which case the responsible party shall receive no
33       additional time to complete the portion of the trail in that county unless
34       the trail will be in only one county. If only one county is involved, the
35       responsible party must complete the entire trail within one calendar year
36       after proof of ownership is established and all other requirements are
37       met.
38             (c) The following activities and actions are prohibited on trail
39       property:
40             (1) The use of any motorized vehicles on the trail, including, but not
41       limited to, automobiles, trucks, snowmobiles, motorized bicycles, motor-
42       cycles and go-carts. Exceptions to this prohibition shall be motorized
43       wheelchairs and vehicles needed to accomplish trail maintenance or used


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  1       by emergency service providers, such as ambulances, fire trucks, law en-
  2       forcement, and utility repair crews.
  3             (2) Hunting, fishing, trapping or possession of any firearm, bow-and-
  4       arrow, crossbow, BB-gun or other weapon or other device capable of
  5       discharging an object through the air or on the ground.
  6             (d) Discharging any weapon across a recreational trail is prohibited.
  7             Sec.  5. (a) Affected county commissions shall have the right to in-
  8       spect any recreational trail within their county at any time for any reason
  9       they deem necessary. County commissions shall inspect any type of po-
10       tential hazard at the request of any adjacent property owner within 10
11       working days after receiving a written or oral complaint.
12             (b) Property owners adjacent to a recreational trail shall have the right
13       to cross the recreational trail consistent with the use of the adjacent prop-
14       erty, including, but not limited to, motorized equipment, and use of the
15       trail for distances parallel with the adjacent property owner's property for
16       maintenance or normal use consistent with use of the adjacent property
17       or property on the opposite side of the recreational trail and with K.S.A.
18       66-301 through 66-303, and amendments thereto.
19             Sec.  6. If the responsible party is a governmental entity or a nonprofit
20       entity not subject to property taxes, such responsible party shall pay an
21       amount equivalent to the taxes the affected county would lose by remov-
22       ing the recreational trail area from the county tax roll. The value of the
23       property shall be assessed by the county tax assessor as required by state
24       law. In making assessment valuations, the basis for use shall be the use
25       of adjacent property or the last prior use, whichever shall result in the
26       best use of the property. The payments in lieu of taxes shall be paid prior
27       to January 1 each year.
28             Sec.  7. The provisions of this act may be modified or supplemented
29       by any city governing body for recreational trails within the corporate
30       limits of such city in the manner described in K.S.A. 12-137 et. seq., and
31       amendments thereto. If a city governing body adopts a manner of setup
32       in addition to those provided by this section, the city shall pay all costs of
33       compliance with such additional requirements.
34             Sec.  8. (a) The provisions of this act shall apply to any recreational
35       trail dating from the date the responsible party entered into negotiations
36       for trail use or a rail banking agreement with the appropriate federal
37       agency, or other means utilized in obtaining legal deeds to the proposed
38       recreational trail.
39             (b) Any responsible party, other than a government entity, who vio-
40       lates or fails to comply with any provision of this act shall be guilty of a
41       misdemeanor and, upon conviction, shall be punished by a fine of $250
42       per day for each day of violation or noncompliance up to a maximum of
43       $10,000 for each count. If a government entity violates or fails to comply


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  1       with any provision of this act, the violation shall be deemed to be a suf-
  2       ficient rationale for recall of the elected officials responsible for
  3       enforcement.
  4             (c) The primary enforcement of this act rests with county attorneys
  5       of affected counties. If a county attorney fails to act upon presentation of
  6       credible evidence of noncompliance with this act, the Kansas attorney
  7       general shall be responsible for enforcement of the act upon petition by
  8       any citizen in the affected county.
  9             (d) Nothing in this section shall invalidate any other remedy available
10       under Kansas law.
11             Sec.  9. Responsible parties for existing trails or for trails that are in
12       the development process shall have one year after the effective date of
13       this act to come into compliance with the requirements stated herein.
14       Development process is defined as having created a legal entity for the
15       purpose of creating a trail, irrespective of whether or not the entity has
16       actually entered into any agreements or acquired property. 
17       Sec.  10. K.S.A. 1999 Supp. 58-3211 through 58-3216 are hereby
18       repealed.
19        Sec.  11. This act shall take effect and be in force from and after its
20       publication in the Kansas register.