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20 CHAPTER THREE MANAGEMENT OF ACCESS RIGHTS This chapter discusses the management of access rights and, nate access is available. A dilemma can arise for an agency because the available literature is limited, is based on infor- when an opening in the access control line is located in an mation provided by the questionnaire responses. This chap- area where a driveway would be unsafe. In such cases, it is ter is organized into four sections: (1) Administration of likely that the agency would be required to limit the usage, Access Rights, (2) Organizational Characteristics, (3) turn movements, or may be required to deny the driveway Records Management, and (4) Additional Techniques to entirely. Manage Access. In Kentucky, a request for a driveway in an opening of the The application of police power as a means to manage partial access control line is approved if the opening in the access is used extensively by the responding agencies. How- partial access control line is consistent with the agency poli- ever, the use of police power and eminent domain are often cies. However, if the subject opening in the access line is not intertwined, especially where agencies have acquired partial approved, the request is denied. The Massachusetts Highway access rights along roadways through eminent domain and Department will approve the request for a driveway assuming then apply police power regulations in driveway permitting that there are no safety issues. Where there are safety con- decisions. The last section of this chapter includes a discus- cerns, they may require modifications to be made. In the event sion that addresses the differences surrounding eminent that the modifications cannot satisfy the safety concern, the domain and police power. application is denied. The New York State DOT will often deny the request or grant an approval with modifications. ADMINISTRATION OF ACCESS RIGHTS In Texas, the request is denied by the DOT pending a dis- pute resolution process, whereas the Utah DOT analyzes Where an agency owns partial control of access and the abut- requests on a case-by-case basis. The Utah DOT also ting owner has an opening in the access control line, 94% of requires that the request for a driveway be consistent with the the responding agencies require the owner to request per- local adopted plan or the Transportation Master Plan. mission for a driveway at that location pursuant to its police power. This can be confusing to the landowners, who often In Colorado, the request will be denied if it does not meet believe that an opening in the access control means an uncon- agency policies. Some denials have led to challenges when ditional right of access. the denial of a driveway is based on safety concerns. In some cases, the Colorado courts have ordered the state agency to Most responding agencies (75%) are not required to pro- issue a driveway permit even though it is not consistent with vide the owner with a driveway at each opening in the access the DOT's policies. control line. In Minnesota, the driveways are permitted only if they are necessary to provide suitable access to the site. In other states, such as Montana, the openings in the access con- Compensation Considerations trol line were historically treated as undeniable access rights; therefore, if it was to deny access to a landowner, compen- If the request for a driveway at an opening in the access con- sation for that potential access would be owed. trol line is denied, 30% of the responding agencies indicated that they would be required to pay compensation to the Sometimes a driveway is requested by a property owner landowner, because the opening is considered a property right. at an opening in the access control line that is not consistent It appears that the courts or legislature determined that a denial with standards or agency policy. When this happens, 10% of at an opening in the access control line constituted a "taking." responding agencies approve the request. In Oregon, the In Missouri, a denial is viewed as an inverse condemnation and request may be denied. However, the affected property therefore the state is required to pay compensation or allow the owner can file a claim for relief. Montana and Georgia may driveway. In these instances, Missouri DOT staff works to work by statute with the landowner to allow the driveway, resolve access issues through negotiation and/or modification. but in a different location depending on the need to provide Similarly, in Nebraska it would be considered a "taking" and reasonably convenient and suitable access and whether alter- the owner has a right to receive damages.

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21 Most responding agencies indicated that they are required Where an agency owns the access rights along a roadway and to pay compensation if the landowner is left with no other rea- the agency acquires additional right-of-way, approximately sonable access. If access to another public road is available and half of the responding agencies indicated that the access con- the property is not landlocked, the landowner is generally not trol line would automatically convert to the new location. In compensated, such as in Texas where circuity of travel is not Minnesota, the access control line would usually shift to the compensable. Other states including Colorado, Rhode Island, new location, but the impact of that shift would be evaluated South Dakota, and Virginia are not required to pay compensa- using an appraisal to determine if it created new damages. tion when other access is available. In Oregon, they allow the Any shift in the location of the access control line would be property owner to "reserve" access points at specific locations. identified in the property deed. In Colorado and Washington, If the Oregon DOT decides to deny a permit for a driveway at the determination on whether or not the access line is auto- the "reservation of access," the affected property owner can matically relocated would depend on the situation, whereas file a claim for relief. In Iowa and Nebraska a closure would in Utah the access control line does not automatically con- require compensation because it is considered a "taking," vert to a new location. Agency staff would negotiate with the because the property maintained a right to access the highway. affected property owner to determine the value of the new access control location. The process used in Utah is similar The Florida DOT does not pay compensation for the to approximately half of the responding agencies. denial unless the denial constitutes substantial diminution of beneficial use and enjoyment of the property based on rea- sonable remaining access. Level of Success In a paper published in 1953 on methods used to manage If compensation is required, most responding agencies right-of-way for future use, Leroy Moser, the Right-of-Way value the access based on an appraisal. Two responding Engineer for the Maryland State Roads Commission, recom- agencies (Florida and Montana) also use negotiation as a tool mended that the acquisition of access rights not only be used for determining the value of an access. Montana uses courts for freeways, but also be used more extensively on other to determine the value. highways and city bypasses (19). Since that time, many agen- cies have acquired access much more extensively on In North Dakota, the state has never been required to pay nonfreeways and arterials and crossroads at interchanges compensation, because all requests for driveways at an open- reaching varying levels of success. ing in the access control line have been approved. To evaluate the success of agency experiences, the ques- Transferability of Access Control Rights tionnaire asked respondents to rate the level of success the agency had on preventing or precluding access to these types Many agencies began to acquire access rights along road- of roadways. Figure 10 summarizes the responses of the ways in the 1950s and 1960s. There are many occasions agencies. where road realignments or widening have occurred since that time that require a modification to the right-of-way As shown in Figure 10, all but one responding agency, a line and could affect the previously acquired access rights. city, noted that their practices and experiences with highways 97% 100% 88% 90% 80% 70% 70% Interstate Freeways 70% Non-Interstate Freeways 60% Other Highways & Arterials 50% Crossroads at Interchanges 40% 30% 24% 20% 15% 12% 10% 6% 3% 3% 0% 0% 0% 0%0%0%0% 0% 0%0% 0% Very Somewhat Somewhat Very N/A Successful Successful Unsuccessful Unsuccessful FIGURE 10 Answers to Questions 36: "Where access has been acquired, what is the level of success in preventing or precluding access to the roadway?"