Access Rights (2005)

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11 This chapter discusses acquisition of access rights based on questionnaire responses received from the various agencies, a review of additional materials provided by the agencies, and information collected in the literature review process. Based on these efforts, the chapter is divided into four sections: (1) Acquisition of Access, (2) Results from Questionnaire, (3) Criteria for Acquiring Access Rights, and (4) Factors in Valuation and Negotiation. ACQUISITION OF ACCESS Most relevant access information was written in the 1950s and 1960s when the current concepts of acquiring access rights were being developed. The majority of the writing centered on the acquisition of access rights; the methods; the process; and, to some degree, the different ways to determine the value of the acquisition. The writing also centered on the process to achieve complete access control along roadways; most often, the process necessary to facil- itate the building of the Interstate Highway System or other freeways. Examples of Full Control of Access as Compared with Partial Control of Access The responses to the questionnaire for this synthesis revealed that the terminology surrounding the subject of access rights varied considerably across the nation. Hypothetical exam- ples are provided to describe the features of full control and partial control of access rights. An example of a complete restriction of access is illustrated in Figure 2. As shown in Figure 2, Town X is bisected by a freeway where full access control was purchased. The freeway sep- arates residential developments to the north from farmland to the south. To provide reasonable access to the parcels of land, multiple techniques are shown. On the north side of the freeway, an alternate street system is provided to allow the properties access to the freeway by means of local 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, the ravine made it too costly to construct a crossing to extend the frontage road, making it less expensive to acquire the entire parcels “B” and “C.” An easement was purchased on property “D” to allow property owner “A” to access the frontage road. Because the construction of the highway would result in property “A” being severed, the agency was able to develop a means of access along the side of the ravine under the highway. Thus, the property owner was able to secure access to the field on the north side of the roadway. In this example, the cost to achieve full access control was relatively inexpensive when the agency was able to provide some other means of reason- able access to the property. Figure 3 depicts the same town used in Figure 2, with a two-lane highway rather than a freeway running through town. In this example, the agency determined that some amount of access to the highway would be acceptable; therefore, they acquired partial access rights as a means to limit access to specific locations. Figure 3 is an example of poor access management. Less than desirable spacing is provided between openings in the access control line and few openings align on the north and south sides of the highway. 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 landlocked as in the previous example. Rather, openings in the access control line allowed each property to have a min- imum of one driveway to the highway, as illustrated for lots “D” and “E.” Multiple openings were allowed for lots “A” and “F.” A single opening or gap was left to jointly serve lots “B” and “C.” Furthermore, property owners “A,” “D,” and “E” have additional openings in the access control line for future driveways designated by the letter A within a circle. Unlike the previous example, the city streets in Town X con- nect directly to the highway. In this example, the openings in the partial access control line were determined primarily by the land ownership pat- terns and individual negotiations with property owners, rather than determining where a driveway might be located when applying a driveway spacing standard. RESULTS FROM QUESTIONNAIRE Although full control of access was purchased along Interstate highways, agencies purchase access differently on nonfree- ways and arterials. Table 1 shows the percentage of responding CHAPTER TWO ACQUISITION OF ACCESS RIGHTS

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

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

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). 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. This right can be considered one of the property rights in the bundle and, like any other right, can be conveyed to another party. In the case of the building of the Interstate Highway System, states were required to have laws that prevented direct access to properties when the highway was built to receive federal funding. The states also had to ensure that all existing direct access would be eliminated and no future direct access would be allowed to adjacent properties when existing highways were upgraded to become part of the Interstate Highway System, thus removing the right of access stick from the bundle of sticks (rights) along the frontage between the Interstate highway and the abutting property. Because all access was acquired from the adjacent prop- erty owners that fronted the Interstate highway (see Figure 2), the state agency had two options: (1) leave the property landlocked or (2) provide some means of reasonable access. This was accomplished in several ways, including construct- ing frontage roads, securing crossover easements from neighboring properties, and constructing local street systems. Partial access control means that the local agency has the eminent domain authority to acquire the right of access along the highway segment as necessary, but may leave openings in the access line where access to the property may be allowed. States have accomplished this in two general meth- ods: first, by a highway designation where access is not FIGURE 5 (a) Bundle of sticks, (b) Bundle of sticks: Acquisition of access rights, (c) Bundle of sticks: Disposal of access rights.

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

16 understood and agreed that the undersigned and their heirs and assigns shall have no right of access to the highway constructed on said right-of-way except at the following survey stations: 761+00 right.” When Williams later attempted to locate an access at this point and it was denied, he brought about a civil action for a breach in con- tract. The court stated that the point of access previously granted was an easement for access and to deny Williams the use of it constituted a taking. Thus, Williams was com- pensated through inverse condemnation (13). As this example shows, when access control is purchased, it is important to consider the wording of the agreement. In this case, the wording implied a right to access at any openings within the access control line. Montana is in the process of transitioning away from out- right acquisition of access rights and is moving toward regulatory control. Its previous process required the appraisal and purchase of access. Once access rights were acquired, they were placed in a deed to memorialize the decision. If the access was appraised at this time, it usually received the nominal $300 value, because the state generally left the prop- erty owner with the pre-existing driveway or driveways to serve the property. However, when a property owner attempted to acquire additional access rights to serve a dif- ferent use for the property, the department would determine the value of the additional access based on the value as deter- mined by a before-and-after appraisal based on existing and proposed land use and access. In many instances, the appraisal for the “after condition” resulted in a substantial increase in value. This increase was assumed to be the result of the additional access and was therefore the cost to the property owner for the change in use. The Montana DOT is responsible for preserving the safety and through mobility of their highway facilities, not the general use of the adjacent land. As part of its new program, it is recognized that all adja- cent landowners have a right to reasonable access to the pub- lic highway, but not necessarily direct access. As long as rea- sonable access is achieved, no access rights need to be purchased. CRITERIA FOR ACQUIRING ACCESS RIGHTS Current Practice Agencies use various techniques to determine when access rights will be acquired. These techniques were surveyed in the questionnaire and include statutes, rules, agency policies, corridor plans, design plans, and individual analysis. Responding agencies also indicated safety concerns and techniques not specifically addressed in the questionnaire such as access management plans, corridor agreements, envi- ronmental policies, and engineering design guidelines. These techniques vary depending on whether the facility is a non- freeway and arterial or a crossroad at an interchange. Figure 7 depicts the various techniques used by the responding agencies. Most agencies use more than one technique to determine when access rights are acquired. A brief explanation for each technique addressed in the questionnaire is provided here. Statutes Statutes are those laws that have been developed that qualify how an agency may (or may not) develop access-controlled roadways. The responding agencies indicated that this tech- nique is used less than half the time on nonfreeways and arte- rials, and crossroads at interchanges. 30% 39% 61% 55% 18% 67% 30% 55% 42% 18% 18% 64% 18% 33% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Statutes Rules Agency Policies Corridor Plans Design Plans Individual Analysis Other Nonfreeways and Arterials Interchange Crossroads FIGURE 7 Answers to Questions 1b and 2b: “Which of the following does your agency use to determine whether or not access rights are required?” (Note: Multiple responses were possible.)

17 As an example, the state of Virginia uses its statutes in addition to agency policies, and corridor plans, to deter- mine the need for access rights acquisition. Virginia’s statutes allow it to acquire or designate any part of an exist- ing highway as a limited access highway, whereas their policy establishes the rules pertaining to limited access control. The use of statutes for the preservation of roadways at the state level has increased. Statutes usually deal with the coordination needed between land use and transportation planning agencies. For example, some may establish a noti- fication procedure to ensure that transportation officials are advised of current developments and land use changes. “Although the process varies by state, the agency upon receiving notice of a land-use change is provided the oppor- tunity, within a specified time, to take action to provide pro- tection for any planned development that may affect the corridor” (15). Rules Rules are text developed by the regulating agency to imple- ment the purpose of statutes and laws. Approximately one-third of the responding agencies indicated the use of rules on nonfreeways and arterials, and crossroads at interchanges. Agency Policies Many states have policies that were developed within an agency to provide direction on when access rights will be acquired. As shown in Figure 7, the responding agencies use this technique more than 50% of the time on both nonfree- ways and arterials, and interchange crossroads. The Nebraska Department of Roads uses its Access Control Policy to determine when to acquire access. This policy specifies a need to purchase access rights on express- ways and other multilane divided highways. The policy also allows selected public roads and accesses from abutting properties at approved locations. All other highways may be considered for access acquisition when they reach a mini- mum 20-year forecast volume, when the highway is within specific limits of cities, where there are fewer than 3 mi between the Interstate and the connecting parallel highway, and where it is deemed appropriate (16). Corridor Plans Corridor plans are plans developed along a highway or a seg- ment of a highway that define the long-term objective. The responding agencies indicated that this technique is used more often on nonfreeways and arterials when compared with interchange crossroads. Design Plans Design plans are an agency standard followed when a high- way is constructed or reconstructed. The responding agen- cies indicated that this technique is used more than 50% of the time. Individual Analysis Individual analysis is usually conducted in response to a spe- cific concern and could be related to safety, weather, politics, or other factors. Responding agencies indicated the use of this technique more often on nonfreeways and arterials when com- pared with crossroads at interchanges. Other Additional responses indicated the use of access manage- ment plans, corridor agreements, engineering guidelines, environmental documents, and safety concerns. A few states use environmental documents as a technique to determine when access rights are acquired. In Montana, the decision to pursue limited access control is made at the preliminary field review of the proposed project. With some projects, envi- ronmental documents completed before the preliminary field review determine whether limited access control is required. Several agencies have only one technique they use to determine when access rights are required on nonfreeways and arterials, such as Connecticut, Georgia, and Louisiana (design plans); Minnesota and Vermont (individual analysis); Missouri and Nebraska (agency policies); and Tennessee (design guidelines). Fewer agencies rely on only one technique to determine when access rights are required on crossroads at interchanges including, Missouri and Nebraska (agency policies), North Dakota (individual analysis), Louisiana (design plans), and Tennessee (design guidelines). Approximately one-third of the 31 responding agencies indicated that they do not have statutes or policies in place to identify how a decision to acquire access is reached on non- freeways and arterials, and interchange crossroads. The criteria for acquiring access rights are similar for non- freeways and arterials, and crossroads at interchanges. How- ever, approximately 20% more agencies use corridor plans and 15% more agencies use individual analysis to determine when access rights will be acquired for nonfreeways and arterials as compared with crossroads at interchanges. When agencies decide on a distance to acquire the access rights along crossroads at interchanges, many rely on the guidance provided in the 1991 AASHTO publication, A Pol- icy on Design Standards—Interstate System, which speci-

18 27% 97% 9% 27% 94% 3% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Negotiation Appraisal Other Nonfreeways and Arterials Interchange Crossroads FIGURE 9 Answers to Questions 1e and 2e: “If you are required to pay for the access rights along nonfreeways and arterials, how do you arrive at a value?” (Note: Multiple responses were possible.) fies a minimum spacing of 100 ft in urban areas and 300 ft in rural areas (17). NCHRP Synthesis of Highway Practice 332: Access Management on Crossroads in the Vicinity of Interchanges addresses current state practices in greater detail (18). From the responses in the questionnaire, it appears that agencies do not consistently use the same criteria to deter- mine when access rights are acquired as they do when they dispose of access rights. Further discussion follows in chap- ter four under Disposal Management. Figure 8 shows the percentage of responding agencies that give the responsibility of acquiring access to various people within an agency. Although most responding agen- cies indicated that only one person was responsible, several agencies give this responsibility to multiple people. Gener- ally, the same people are responsible for acquiring access rights on nonfreeways and arterials as on crossroads at interchanges; the right-of-way director is responsible for the majority of the decisions. Others who might have exclu- sive responsibility or might work with the right-of-way director in the acquisition include the chief engineer, traf- 12% 79% 3% 21% 9% 24% 9% 0% 6% 79% 24% 21% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% Chief Engineer Right-of-Way Director Traffic Engineer Project Manager Planning Manager Other Nonfreeways and Arterials Interchange Crossroads FIGURE 8 Answers to Questions 1c and 2c: “If you acquire access rights, who in your agency is responsible to ensure that access rights are acquired?” (Note: Multiple responses were possible.)

19 fic engineer, project manager, and planning manager. A number of responding agencies indicated that other indi- viduals not covered by these titles are also in charge of the acquisition of access rights. In Oregon, a Project Develop- ment Team is responsible for ensuring that access rights are acquired. The responsibility for acquiring the access belongs to the Right-of-Way section at the Oregon DOT. In other states, such as Washington, the Access Unit is respon- sible for ensuring the acquisition of access rights. FACTORS IN VALUATION AND NEGOTIATION When required to pay for access rights, nearly all responding agencies noted that they use an appraisal to determine the value of the access. Nine of the responding agencies (Col- orado, Florida, Louisiana, Missouri, Montana, New Jersey, Pennsylvania, South Carolina, and Virginia) (27%) also use negotiation. Figure 9 shows the percentage of agencies responding to each technique. The access required for a particular property, and there- fore the value of the access to that property, depends on the land use. Netherton stated in the book, Control of Highway Access, that the courts and legislation have little background on the data relating to this aspect of land use and therefore rely on valuation without taking into account compensation policies and concepts (2). Different land uses have vastly different access needs. Netherton noted that the major categories of land uses generally are farmland, suburban residential areas, urban residential areas, industrial sites, institutional sites, commercial neighborhood establishments, and highway commercial establishments (2).