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11 CHAPTER TWO ACQUISITION OF ACCESS RIGHTS This chapter discusses acquisition of access rights based on access the frontage road. Because the construction of the questionnaire responses received from the various agencies, highway would result in property "A" being severed, the a review of additional materials provided by the agencies, agency was able to develop a means of access along the and information collected in the literature review process. side of the ravine under the highway. Thus, the property Based on these efforts, the chapter is divided into four owner was able to secure access to the field on the north sections: (1) Acquisition of Access, (2) Results from side of the roadway. In this example, the cost to achieve Questionnaire, (3) Criteria for Acquiring Access Rights, and full access control was relatively inexpensive when the (4) Factors in Valuation and Negotiation. agency was able to provide some other means of reason- able access to the property. ACQUISITION OF ACCESS Figure 3 depicts the same town used in Figure 2, with a two-lane highway rather than a freeway running through Most relevant access information was written in the 1950s town. In this example, the agency determined that some and 1960s when the current concepts of acquiring access amount of access to the highway would be acceptable; rights were being developed. The majority of the writing therefore, they acquired partial access rights as a means to centered on the acquisition of access rights; the methods; limit access to specific locations. Figure 3 is an example of the process; and, to some degree, the different ways to poor access management. Less than desirable spacing is determine the value of the acquisition. The writing also provided between openings in the access control line centered on the process to achieve complete access control and few openings align on the north and south sides of the along roadways; most often, the process necessary to facil- highway. itate the building of the Interstate Highway System or other freeways. These openings or gaps in the partial access control line were planned to accommodate existing and future intersec- tions and driveways. The agency did not leave any properties Examples of Full Control of Access as Compared with Partial Control of Access landlocked as in the previous example. Rather, openings in the access control line allowed each property to have a min- The responses to the questionnaire for this synthesis revealed imum of one driveway to the highway, as illustrated for lots that the terminology surrounding the subject of access rights "D" and "E." Multiple openings were allowed for lots "A" varied considerably across the nation. Hypothetical exam- and "F." A single opening or gap was left to jointly serve lots ples are provided to describe the features of full control and "B" and "C." Furthermore, property owners "A," "D," and partial control of access rights. An example of a complete "E" have additional openings in the access control line for restriction of access is illustrated in Figure 2. future driveways designated by the letter A within a circle. Unlike the previous example, the city streets in Town X con- As shown in Figure 2, Town X is bisected by a freeway nect directly to the highway. where full access control was purchased. The freeway sep- arates residential developments to the north from farmland In this example, the openings in the partial access control to the south. To provide reasonable access to the parcels of line were determined primarily by the land ownership pat- land, multiple techniques are shown. On the north side of terns and individual negotiations with property owners, the freeway, an alternate street system is provided to allow rather than determining where a driveway might be located the properties access to the freeway by means of local when applying a driveway spacing standard. roads to the interchange crossroad. In addition, a frontage road is provided to the crossroad that allows properties "D," "E," and "F" to access the freeway. In the example, RESULTS FROM QUESTIONNAIRE the ravine made it too costly to construct a crossing to extend the frontage road, making it less expensive to Although full control of access was purchased along Interstate acquire the entire parcels "B" and "C." An easement was highways, agencies purchase access differently on nonfree- purchased on property "D" to allow property owner "A" to ways and arterials. Table 1 shows the percentage of responding

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12 FIGURE 2 Full access control. FIGURE 3 Partial access control.

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13 TABLE 1 Statutory Designation PERCENTAGE OF RESPONDING AGENCIES THAT ACQUIRE FULL AND/OR PARTIAL ACCESS CONTROL ON Several agencies acquire access through statutory designa- NONFREEWAYS AND ARTERIALS AND CROSSROADS AT INTERCHANGES tion, which is an exercise of police power. Five of the responding agencies use statutory designation on non- Yes No freeways and arterials, whereas only three use statutory Nonfreeways and designation on crossroads at interchanges. Arterials Full control 88% 12% Partial control 100% 0% Oregon uses statutory designation on nonfreeways and Crossroads at arterials, but not on crossroads at interchanges. The state may Interchanges designate its highways as "throughways," which have spe- Full control 81% 19% cific restrictions and provide the ability to regulate access. As Partial control 90% 10% an example, throughways are limited to 10 commercial busi- ness accesses per mile. The Oregon Department of Trans- agencies that acquire full and/or partial access control on non- portation (DOT) has the authority to separate the directions freeways and arterials. A summary of the agency responses is of travel on a throughway and thus regulate, restrict, or pro- included in Appendix C. As shown in the table, 88% of the hibit access to best serve the traffic on the throughway (7). responding agencies purchase full access control, and all The same authority is not applicable to crossroads at inter- responding agencies purchase partial access control on non- changes where, for example, the Oregon DOT use eminent freeways and arterials. domain to acquire access. Table 1 shows that most responding agencies acquire both Eminent Domain full and partial access control on crossroads at interchanges, although some states do not acquire any. Five of the respond- Eminent domain is defined by AASHTO as a legal power ing agencies do not acquire full control of access but do that allows a public agency to take property for public use acquire partial control on these crossroads, two of the respond- provided an owner is compensated for his or her loss (6). ing agencies indicated that they acquire full control but not Components of eminent domain are included in the U.S Con- partial access control, and one agency (Maine) indicated that stitution and in the constitutions of various states. No private they do not acquire any access control on crossroads at inter- property is exempt from the applicability of eminent domain. changes. As shown by Table 1, partial control is purchased The only limit is that the property to be acquired must be for more often on nonfreeways and arterials when compared with public use. crossroads at interchanges. Eminent domain refers not only to the physical owner- Once the decision is made to acquire access, responding ship of a piece of property, but it can also include the means agencies indicated that they do so through purchase or of access to that property. It usually occurs through two sit- eminent domain. Figure 4 depicts the percentage of agencies uations: when a government agency condemns a property or that use each acquisition technique. In addition to using emi- when a public agency through governmental action causes nent domain, some agencies use statutory designation, and injury to an owner and the owner brings an "inverse con- several agencies indicated the use of deeds. demnation" suit to demand recovery of the costs of the damages (e.g., denial of access and nonissuance of entrance permit). 100% 97% 97% 90% There is often some confusion between eminent domain and police power. The police power is the power of government to 80% Nonfreeways and act in the furtherance of the public good, either through legisla- 70% Arterials tion or by the exercise of any other legitimate means, in the pro- Interchange Crossroads 60% motion of the public health, safety, morals, and general welfare, 50% without incurring liability for the resulting injury to private indi- viduals. Eminent domain is the power of the sovereign to take or 40% damage private property for a public purpose upon payment of 30% just compensation. Police power is the power to restrict a prop- 20% 15% erty because it is necessary. Eminent domain is the power to 9% 12% 12% 10% appropriate a property right because it is useful. Whether it is the police power or eminent domain that is being exercised in a 0% particular case is sometimes difficult to determine. This is in part Statutory Purchase/Eminent Other due to the fact that it is extremely difficult to tell where the police Designation Domain power ends and where the power of eminent domain begins (8). FIGURE 4 Answers to Questions 1d and 2d: "How do you acquire access rights along nonfreeways and arterials?" Police power may also be used to manage access through (Note: Multiple responses were possible.) implied general police power authority given to several

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14 levels of government (9). When a property owner requests a driveway, it is through police power that a state or local agency will determine the location of an allowable drive- way, limits to the driveway, the methods for driveway con- struction, or even if the driveway can be allowed. If an agency's rules and regulations are so rigorous so as to pre- vent any reasonable access to the property, it is likely that it would rise to a "taking" under eminent domain rather than a use of police power. Many agencies have specific statutes that require agencies to provide reasonable access and if it is not possible to provide reasonable access to a property, the agency is typically required to acquire the access rights through a condemnation process through the authority of eminent domain. A consideration of the application of eminent domain and the exercise of police power is especially important when acquiring and managing partial access control along non- freeways and arterials, because the governmental agencies will usually be required to apply both techniques. Bundle of Sticks In 1922, the U.S. Supreme Court introduced a concept of a bundle of sticks in relation to rights that a property owner may enjoy where each of the sticks represents common rights that flow or stay with the property (10). (see Figure 5a). The court also made it clear that some of the sticks are more important than others, with four essential types of property rights: (1) possession, (2) use, (3) exclusion of others, and (4) disposal (11). This analogy helps to communicate how individual rights may be sold or acquired by another entity, while the property owner retains the remaining sticks in the bundles. Govern- ments have the right of eminent domain, which allows them to take private property (one of the sticks) for public use with just compensation. (see Figure 5b). This occurs through condem- nation and does not require a property owner's consent (12). FIGURE 5 (a) Bundle of sticks, (b) Bundle of sticks: Acquisition of access rights, (c) Bundle of sticks: Disposal of access rights. As the analogy of a bundle of sticks is applied to access, property owners that have frontage along a road- way are generally ensured of an abutter's right of access. Because all access was acquired from the adjacent prop- This right can be considered one of the property rights in erty owners that fronted the Interstate highway (see Figure the bundle and, like any other right, can be conveyed to 2), the state agency had two options: (1) leave the property another party. In the case of the building of the Interstate landlocked or (2) provide some means of reasonable access. Highway System, states were required to have laws that This was accomplished in several ways, including construct- prevented direct access to properties when the highway ing frontage roads, securing crossover easements from was built to receive federal funding. The states also had to neighboring properties, and constructing local street systems. ensure that all existing direct access would be eliminated and no future direct access would be allowed to adjacent Partial access control means that the local agency has the properties when existing highways were upgraded to eminent domain authority to acquire the right of access along become part of the Interstate Highway System, thus the highway segment as necessary, but may leave openings removing the right of access stick from the bundle of in the access line where access to the property may be sticks (rights) along the frontage between the Interstate allowed. States have accomplished this in two general meth- highway and the abutting property. ods: first, by a highway designation where access is not

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15 allowed to adjacent properties, and second, and the more of highway. The DOT depicted these openings by specifying common technique, the physical acquisition of access rights the centerline and width of the opening. In the example of the except at specific locations along the frontage. In this case, accesses at stations 707+10 and 707+50, the map indicates the state acquires the right of access from the bundle of that both openings are 35 ft wide. Therefore, although the sticks, and through a prior decision or negotiation replaces centerlines of the openings are spaced 40 ft apart, the actual the stick that specifies access at an exact location in the bun- length of access control purchased between these two open- dle, as shown in Figure 5c. This decision is often memorial- ings is 5 ft. If accesses were permitted at each opening in the ized in a deed. Samples of typical deeds and deed language access control line, this facility would be burdened with the are provided from several state agencies in Appendix D. safety and operational implications of closely spaced driveways on a highway. The practice of acquiring access rights while leaving an opening in the access control line intertwines the eminent Some states have experienced particular challenges domain authority during the acquisition and the application with the use of eminent domain to acquire access rights. of police power when making the decision to allow or deny For example, in North Carolina in the mid-1950s, before a driveway. the concept of Interstate freeways and access control had fully developed, the North Carolina Highway Commission The purchase of access rights is often constrained by entered into a number of agreements regarding access. funding;, therefore, often more openings than are desirable "The language in the agreements changed about every two are left in the access control line. Figure 6 depicts an actual weeks and most of it was devised by various Right-of-Way right-of-way map of a highway in a western state where the Agents to cover what they thought the ultimate access sit- state purchased partial access control. Through the purchas- uation would be. They range[d] all the way from promises ing process, the DOT left numerous openings in the access to build [a] service road to a grant of access at points two control line for existing and future potential access to the and three miles distant from the property" (13). This led to highway. These locations are identified with an A within a several challenges to the wording of the agreements. An circle. Some of these openings are located on the edge of the example is in Williams v. Highway Commission (14) where property, whereas other times several openings are provided the North Carolina Highway Commission purchased right- to one property. As shown in the figure, 13 openings were of-way along the frontage of the Williams property. provided in the access control line within the 815-ft section The language in the agreement stated that, "It is further FIGURE 6 Excerpt of an actual state right-of-way map showing partial access control.