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25 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Property Deed 84% Electronic Records 19% Right-of-Way Maps 81% Spreadsheets 3% Public Record 59% Agency Record 41% Other 28% FIGURE 12 Answers to Question 16: "Where your agency has acquired a right of access, how do you memorialize the decision?" (Note: Multiple responses were possible.) the purpose is to prevent motorists from entering and leaving Although police power is often used by various agencies the roadway it may still be appropriate to allow pedestrians to manage access, there is often confusion on the distinction and cyclists to access the right-of-way to cross and/or traverse between police power and eminent domain. To address the parallel to the roadway. ambiguity surrounding these two techniques, the following section provides additional information gleaned from the lit- erature review. ADDITIONAL TECHNIQUES TO MANAGE ACCESS The majority of responding agencies (67%) reported the use Confusion Between Eminent Domain of both the acquisition of access rights and the exercise of and Police Power police power to manage property owners' access to high- ways. Police power techniques used include corridor desig- Carlson, in a publication on eminent domain and police nations, acquisition of development rights, land use controls, power, writes that "legal commentators as well as court deci- access covenants, land division review, driveway policy, and sions have stated that it is difficult to distinguish consistently access management. Figure 13 depicts the various agency between the power of eminent domain and the police power" techniques used to manage access. (20). However, the two powers are distinct. Eminent domain 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% 73% Police Power 70% 21% Corridor Designations 12% Acquisition of Development 18% Rights 15% 24% Land Use Controls 24% 3% None 3% 48% Other 42% Nonfreeways and Arterials Crossroads at Interchanges FIGURE 13 Answers to Questions 7 and 8: "What other techniques are used to limit or manage access?" (Note: Multiple responses were possible.)
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26 takes property because it is useful to the public, whereas limiting the amount of access on transportation facilities police power regulates the use of the property because the free was needed to improve safety and maintain operations. use of that property would be detrimental to the public inter- Thus, police power, which is usually exercised through est (20). In research delving into highway protection laws, "it prohibition or regulation, was an appropriate tool to limit was found that in actual operation police power actions and access on these facilities. For the most part, police power the exercise of eminent domain are often intertwined. It was is used in a regulatory manner except in the case of emer- found that a neat eminent domain formula may mislead even gencies. It has been difficult for the courts to identify the an able court into overlooking police power aspects" (21). boundaries of police power, as it is considered the "reserve power." As a result, police power may sometimes restrict This issue continues to prove difficult. Proponents on both individual rights. Compared with the benefits to the com- sides of the issue fail to be satisfied by recent court rulings (22). munity as a whole, these restrictions are considered a neg- "Some courts have suggested that the police power ends when ligible loss (20). the injury to the property owner in not being paid for his prop- erty is greater than the injury to the public in having to pay for Historically, to have property "taken" meant an invasion the property. It is only by weighing and balancing the need for of the physical property or occupation of the land (3). Unless the property, the injury to the property owner, and the burden a property was landlocked, courts expected (1) risks associ- of compensation upon the public that it can be decided in any ated with highway designs changing, (2) reasonable access case whether a right ought to be taken without paying for it" (8). only, (3) traffic diversion, (4) compliance with required safe traffic control, and (5) limited access that limited the abutters There is no set formula for determining whether a court rights (24). case follows police power or eminent domain; instead, it is necessary to examine the cases by categories on a case-by- As stated in Nichols on Eminent Domain, case basis (20). Generally, there are two areas where court cases have almost uniformly upheld police power by deny- Generally, the "right of access" has been recognized through the ing compensation. The first is that the highway by design United States as a property right which cannot be taken, or mate- rially interfered with, without just compensation. may be regulated by traffic signals, center medians, turning restrictions, parking restrictions, and other regulations. In instances where an abutting landowner is totally deprived These restrictions may interfere with access or even cause of his access to an existing road (i.e., a way of necessity), courts circuity of travel for abutting landowners. In the City of have generally found a compensable taking (4). Phoenix v. Wade (23), and most other similar court cases, it was found that the abutters have no legally protected interest It was not until the 1920s that the concept of regulatory in the flow of traffic past their property. The diversion of traf- taking was recognized. In the 1922 U.S. Supreme Court fic is an exercise of a governing agency's police power (20). Case, Pennsylvania Coal Company v. Mahon (10), the con- cept of regulatory taking emerged. When police power The second area where compensation is almost uniformly goes so far as to violate constitutional property rights, it denied is where direct access is restricted. As stated in is no longer an exercise of police power, but constitutes Nichols on Eminent Domain, a taking and should be compensated under eminent domain (3). Eminent domain requires just compensation Interference with passage along a public way under an exercise when the government takes property rights for a public of government action by (1) installing a median strip limiting the purpose (22). mode and type of traffic; (2) designating a one-way traffic street; (3) prohibiting or regulating parking; (4) prohibiting turns; or (5) restricting the speed, weight, size, and character of vehicles As stated in Nichols on Eminent Domain, allowed on certain highways is generally a valid exercise of the police power and is not compensable (4). While the state can regulate access to some extent through the police power, clearly a point may be reached where compen- A governing agency has the power to limit the number of sation for a taking is mandated. The historic rule is the police driveways along a transportation facility for safety reasons. power ends and the power of eminent domain begins when the injury to the property owner in not being paid for his property As long as abutting landowners have reasonable access there is greater than the injury to the public in having to pay for the is no need for compensation. Abutters cannot expect to have property (4). access at every point along their property (20). This restric- tion is normally regulated under the exercise of police power. It is the responsibility of the agency to monitor the impacts of police power and it is the purpose of the court Police power enabled states to regulate access for pub- to protect the person and the property from the improper lic health, safety, and welfare (22). It was recognized that exercise of police power.