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ACCESS RIGHTS SUMMARY The purpose of this synthesis is to document the state of the practice in acquiring access rights along roadways other than freeways with the intent to limit the amount of access to the road- way. To achieve this objective the synthesis was prepared using a nationwide survey, followed by interviews with selected respondents, to identify issues and practices, as well as a review of current policies and relevant literature. The findings focus on three main areas: (1) acquisition of access rights, (2) management of access rights, and (3) disposal of access rights. Issues related to valuation of access rights and the use of eminent domain, which is the legal power that allows property to be taken for public use provided the loss is compensated, and police power, which is the authority of the government agency to regulate or restrict indi- vidual actions for the protection of the public, are intertwined with the subject matter and included throughout the synthesis. A discussion on full control of access as compared with partial control of access is also included to identify lessons learned. Access control by the acquisition of property rights is federally mandated on the Interstate Highway System. Each state possesses or acquires full control of access rights between the highway and adjacent property owners. Along entirely new highway alignments, many states developed legislation that did not allow property owners access to the new roadway. Along highways that were upgraded to the access-controlled Interstate system, properties that became landlocked were often acquired or an alternate means of reasonable access was developed to serve the property. A considerable amount of literature developed in the 1950s and 1960s served as guidance for state agencies when preserving or acquiring the rights of access for these facilities. A 1955 report, A Ten Year National Highway Program, made the following statement on access control. One of its principal features in the provision for adequate right-of-way is to permit control of access to the highway itself. Otherwise, experience shows that the facility becomes prematurely obsolete due to developments crowding against the roadway which make it unfit for the purposes for which it was designed. Control of access to the degree required by traffic conditions is essential to the protection of life and property. It is also essential to preserve the capacity of the highway. So far as the invest- ment of funds in major roads is concerned, provisions for control of access to the extent required by traffic are fundamental. The responses to the synthesis questionnaire revealed that acquiring rights of access along the Interstate Highway System from the adjacent property owner has been very successful. At-grade intersections or driveways onto Interstate highways have effectively been prevented in the approximately 50 years since the road system was constructed. All of the responding state agencies apply similar techniques of acquiring access rights along other types of highways and crossroads that intersect freeways as a means to limit access. However, unlike the Interstate Highway System, the states may allow access by pub- lic intersections and/or driveways to these roadways and may also provide a process to allow additional access. Therefore, this strategy is referred to as partial control of access.
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2 States generally apply partial access control through statutory designation or the acqui- sition of access rights, or a combination of the two. This strategy is not meant to increase the property owners' right of access to the roadway, but rather limit where the property owner has a right to request a driveway. Five of the 32 states responding to Question 1d have passed legislation giving the high- way agency the authority to control access through a designation, as an exercise of their police power. This means that an official application of a designation on a highway would preclude additional access to the highway and/or allow the authority to close access to those properties that have another means of access. Responses to the synthesis questionnaire revealed that limiting access through a specific designation has been successful. Property owners adjacent to the highway may request driveway access, but will likely be denied such access when reasonable alternative access is available. This technique of limiting access has the benefit of providing flexibility as highway conditions, traffic volumes, travel speeds, and driveway spacing standards evolve over time. All of the state agencies that responded to Question 1d determined that a more reliable system would include the actual acquisition of access rights along the roadway. Although all states acquired complete access control along freeways, a few states such as California and some East Coast states have developed systems of roads, often referred to as express- ways. The agencies acquire all rights of access on expressways from adjacent property owners and only allow well-spaced public road connections. The property owners abutting the access-controlled roadway gain access from an alternative road or street network. This type of access-control strategy has worked well to preserve the roadway for the intended function. Usually, with the exception of freeways and some expressways, states found that they could not afford to purchase all rights of access along the existing highway system, because such an action would have left large numbers of properties landlocked. With no other means of access except the state highway, access rights were acquired along the prop- erty frontage, while simultaneously leaving gaps or openings in the access control line for existing and/or proposed driveways. This action was usually memorialized in a property deed and would therefore run concurrently with the property ownership. The action by the state limits where a property owner might request a driveway but did not convey an increased right of access at that location. An application for a driveway permit can be denied at this specific location without any compensation, if there is an alternate means of access. Responses to the synthesis questionnaire showed that property owners sometimes disagree and believe that specific language in a property deed relating to an access guar- antees that a driveway will be allowed. Also, property owners sometimes believe that they do not need to request permission to construct a driveway to the highway at the location identified in the property deed. The responses to the synthesis questionnaire revealed that limiting access through the acquisition of partial control has varying degrees of success. Much of the concern sur- rounds the certainty of a gap or opening in the access control line with the uncertainty of being able to construct a driveway at that specific location. States often specify the width of the opening, the number of trips allowed, and, in some cases, may even describe the type of land use that the opening can serve. This appears to increase the belief that the state agency has conducted all the necessary analysis and will always allow a driveway at the location. The results of the synthesis revealed that the wording used to describe access rights in the property deed can convey unintended additional rights to the property owner. Denials for driveways at these openings in the partial access control line have led to court challenges, inverse condemnations, compensation by states, and specific laws to rectify perceived wrong doing.
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3 States, counties, and cities that use eminent domain do so to acquire both complete and par- tial control of access. In the case of partial control of access, the governmental authorities use regulatory control under police power to regulate whether or not a driveway will be allowed at a specific location. The literature review revealed that courts have noted that it is sometimes difficult to make the distinction between the application of eminent domain, which is compensable, and regulatory authority under police power, which is not.