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27 A freeway or a segment of the Interstate highway is unlikely to become obsolete and limiting access no longer a priority. The same may not be true for other roadways where an agency has acquired limited access rights from properties abutting those roadways. The literature search conducted for the synthesis revealed that there is a lack of information avail- able on the disposal of access rights. This chapter includes a discussion on the (1) Disposal of Access, (2) Factors in Val- uation and Negotiation, and (3) Complexities of Disposal. During the life of an agency-owned transportation facil- ity, access rights may become unnecessary for a number of reasons. One reason may be when an agency decides to allow a driveway where it was previously not allowed. Another type of event could include the construction of a parallel free- way, highway, or bypass that serves the function of a high- speed, access-controlled facility. Access rights may also become unnecessary with the growth and expansion of com- munities along roadways that used to be predominately rural highways serving farms. In situations where the roadway is now meant to accommodate local street connections and adjacent properties within the community, there may not be a need to retain access control that supported unimpeded through traffic. The partial access control strategy may have been appropriate in the 1950s when the access rights were acquired and the farmland was 3 mi from the downtown. As the communities expand along these roadways, the travel speeds are usually reduced and the function of the roadway often becomes more oriented to serve local needs and the land uses adjacent to the roadway. The long distances between openings in the partial access control line may have been suitable for farms with significant roadway frontage, but the driveway spacing may not be appropriate for pedestrian- and bicyclist-oriented communities. Table 2 shows the percentage of responding agencies that have a process for a property owner to acquire an access right where an agency had already acquired full and/or partial access control on nonfreeways and arterials and interchange crossroads. In general, most agencies have a process for a property owner to acquire an access right to the roadway at a later date after the agency has acquired full access rights on both nonfreeways and arterials and crossroads. Approximately one-third do not have a process for disposal when full access control is acquired. DISPOSAL OF ACCESS Most responding agencies have a process and organizational structure for the disposal of access rights. These issues are addressed in the following two sections on disposal policy and disposal management. Disposal Policy When agencies have a process for disposal, most have either statutes or policies to guide them in this process. Figure 14 depicts the various techniques used to determine when and how to dispose of access rights on nonfreeways and arterials and crossroads. The Minnesota DOT is guided by Minnesota Statute 161.43 (25) on the disposal of highway easements. The statute allows the commissioner of transportation to dispose of ease- ments when it is determined that they are no longer needed. The abutting landowner is able to pay the appraised value for the rights. If the owner refuses to purchase the access rights, the transportation commission may transfer the easement to another agency when the terms and conditions are agreed on. Unlike Minnesota, some states have a process for dis- posal, but have no statutes or polices in place to guide them. These states often rely on their state rules and individual analysis. In addition to these guiding practices, Oregon uses a statewide Grant Review Committee. Depending on the type of facility, Colorado will use corridor plans, design plans, or its right-of-way manual. CHAPTER FOUR DISPOSAL OF ACCESS RIGHTS Yes No Nonfreeways and Arterials Full control 70% 30% Partial control 94% 6% Crossroads at Interchanges Full control 65% 35% Partial control 91% 9% TABLE 2 PERCENTAGE OF RESPONDING AGENCIES THAT HAVE A PROCESS FOR A PROPERTY OWNER TO ACQUIRE AN ACCESS RIGHT WHERE THE AGENCY HAS ACQUIRED FULL AND/OR PARTIAL ACCESS CONTROL ON NONFREEWAYS AND ARTERIALS AND CROSSROADS AT INTERCHANGES
28 An agency might also decide to transfer ownership of a section of roadway, or possibly the entire roadway, through a type of interjurisdiction transfer mechanism to another agency. In those situations where the agency has acquired rights of access, there may need to be special provisions on how to deal with the access rights. Disposal Management Figure 15 shows the percentage of agencies using specific individuals for administering the process of the disposal of access rights. As shown in the figure, the Right-of-Way Direc- tor is most often responsible for the disposal of access rights, although the responsibility can also belong to multiple persons including chief engineers, project managers, traffic engineers, and others. Approximately half of the agencies give the responsibility of the disposal of access to the same people as those that are responsible for acquiring it. The remaining agen- cies either assign these responsibilities to different people or give the responsibility to multiple persons, of which only some can acquire and dispose of access. It would seem logical to allow the same persons to acquire and dispose of access unless the disposal is considered a more important action. 33% 27% 82% 12% 33% 58% 30% 33% 36% 58% 15% 30% 58% 27% 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 Crossroads at Interchanges FIGURE 14 Answers to Questions 22b and 23b: "Which of the following do you use to determine when and how to dispose of access rights?" (Note: Multiple responses were possible.) 18% 67% 15% 12% 52% 18% 61% 18% 12% 55% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Chief Engineer Right-of-Way Director Traffic Engineer Project Manager Other Nonfreeways and Arterials Crossroads at Interchanges FIGURE 15 Answers to Questions 22c and 23c: "If you dispose of access rights, who is responsible to administer this process for your agency?" (Note: Multiple responses were possible.)
29 It is of interest to note that during the acquisition of access rights, the Chief Engineer is involved in four of the respond- ing states, but was required by six states to participate when the access rights were disposed of. The agency Right-of-Way Director could make the decision to acquire in 26 of the agen- cies, but only 22 of the Right-of-Way Directors could deter- mine disposal of access. Commissioners were never part of the process to acquire access, but were required to participate in four states when access was disposed of. These numbers suggest that there is a more formal and formidable process for disposal than for acquisition. If the agency approves the access right, the property owner is not necessarily ensured of being allowed to con- struct a driveway at this location: approximately half of the responding agencies ensure a driveway at this location. Figure 16 presents the agency responses. Some of those not ensuring a driveway require a permit and approve the access if it is reasonably convenient and suitable where alternative access is not available. There are occasions when it may be necessary to transfer the ownership of a roadway to another jurisdiction, such as a city or county, where the jurisdiction had previously acquired access rights. When this happens, most responding states indicated that the access rights are automatically transferred to the new owner along with the ownership. Sev- eral of the responding agencies indicated that the access rights remained with their agency even though the owner- ship was transferred. In Massachusetts, this issue has not been decided legally, so that the access rights remain with the state. Sometimes the ownership of the access rights is negotiated. In Wisconsin, if the access was controlled in the past by statute, the control can be vacated if it is no longer being used for state highway travel. If the county decides to maintain the control, the access rights can be transferred under a separate statute. If the access rights are transferred to the new owner, approximately one-half of the responding agencies indicated that the access rights are still subject to the stateâs rules, pro- cedures, and/or policies in the management of the access rights. For example, in Kentucky the access rights are still subject to Kentucky Administrative Regulations. In Maine, they are still subject to the existing statute. FACTORS IN VALUATION AND NEGOTIATION When agencies dispose of access rights, most of the respond- ing agencies use an appraisal to determine a valuation. Negotiation is used less frequently. Wisconsin uses both negotiations and appraisals to determine a valuation. Appraisals are used for a change to an existing access right that was previously purchased, whereas negotiations are used for a change to an existing access right that was previously controlled by statute. Figure 17 depicts the methods used by the various responding agencies to determine a valuation. Several agencies use other techniques in addition to nego- tiation and appraisal to determine a valuation. In addition to an appraisal, Louisiana relies on a property management offi- cer to determine a valuation for access rights on both nonfreeways and arterials and crossroads. Montana uses negotiation, appraisal, and the court system to determine a valuation on crossroads at interchanges. COMPLEXITIES OF DISPOSAL When agencies were asked about their level of success with purchasing partial access control as compared with their experiences on Interstate freeways, they brought up the issue of disposal. One respondent indicated that once the access right is purchased, the property right cannot be vacated. In some states, access is acquired through eminent domain with 52% 48% 55% 42% 0% 20% 40% 60% 80% 100% Yes Nonfreeways and Arterials Crossroads at Interchanges No FIGURE 16 Answers to Questions 22e and 23e: "If an access right is approved, will the property owner be ensured of being allowed to construct a driveway to the highway or arterial at this location?"
30 the use of federal funds. When an agency wishes to dispose of access, it needs federal approval to sell the access right. As a result, disposal can be difficult. Various state transportation agencies are uncertain as to how to dispose of access rights when they were originally acquired through federal funds or from a trust fund. It is not clear if the agencies are aware that there is a process if these rights were disposed of and/or a roadway was transferred to another jurisdiction in the future. Section 1303 of the Transportation Equity Act for the 21st Century (TEA-21) states that the net income received from the sale or lease of property can be used on any Title 23 eligible project (26). Once received, the federal share of the net income should be held in an account until an eligible Title 23 project is available. 18% 88% 21% 15% 85% 24% 0% 20% 40% 60% 80% 100% Negotiation Other Nonfreeways and Arterials Crossroads at Interchanges Appraisal FIGURE 17 Answers to Questions 22d and 23d: "If you dispose of access rights to an abutting property owner, how do you determine the value?" (Note: Multiple responses were possible.)
