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31 CHAPTER FIVE CASE STUDIES This chapter presents three case studies that illustrate specific Similar to the state of Oregon, when openings in the access control practices, specific issues, and current transi- access control line are specified in the deed it is diffi- tions that some agencies are making. These case studies cult to deny property owners access. The language in (Montana, Ohio, and Oregon) were selected based on the the deed is interpreted by the landowners and often by range of experiences and current directions each agency is the courts to mean that the openings in the access con- taking and are based on the answers to the survey question- trol are points of access for adjacent property owners. If naire and follow-up interviews. Montana is successful in denying the landowners the use of the opening in the access control, it is often con- sidered a taking and just compensation is due. This has MONTANA become expensive for the state. In addition, MDT's program did not have any control The Montana Department of Transportation (MDT) is in the over the use of the access. If the access was previously process of transitioning away from its old system of manag- granted as an acceptable access, and the character of the ing and acquiring access to its new system of incorporating road and the access changed, it was difficult for MDT police power. to close it once it became unsafe, because this was con- sidered a deeded right. The only way to close the access Existing Program was to purchase it and compensate the landowner. Historically, MDT acquired access through the purchase of access control and specified openings across the access New Program Direction control line in deeds. Access was viewed as a property right, and any restriction of the access was considered a Montana is currently transitioning away from acquisition of taking. MDT experienced many challenges with this access rights and is heading in a new direction with an program: approach of regulatory control. With the new program, landowners are ensured of reasonable access at the time of When a facility was considered for access control, right-of-way acquisition. Any development that occurs after- the Access Control Resolution went directly to the ward is subject to the guidelines developed specifically for that Transportation Commission, before public review and corridor. This usually requires owners to use the existing comment. As a result, the facility often became access acceptable access points. If the redevelopment creates a situa- controlled without any public input to the MDT com- tion where additional access or an access reconfiguration is missioner. required, the department is able to allow changes, as long as When MDT determined that a project was going to the owners mitigate any adverse impact to the facility. include access control, there was no clear or docu- Although the owner has to cover the costs associated with mit- mented approach for implementing limited access igation, the access itself is not an expense to the landowner. If control on a project. at any point the access needs to be closed, it can be. As long as During the acquisition of access, access points were a alternative reasonable access can be provided to the property, negotiated item in the right-of-way process between the no compensation for the access rights is needed. With the new individual property owner and the agency. This process program, MDT expects in general to no longer acquire access led to discrepancies between neighbors and no consis- rights, except in the case of environmental documentation that tency within the corridor. explicitly requires that access rights be purchased. In their old program, the format included access thresh- old levels for individual projects. This created a first- To address some of the problems with the old system, come, first-serve approach, as landowners who requested MDT plans to use a public involvement process before des- accesses first used the available number of accesses for ignating a limited access facility. The public involvement the facility. As a result, some parcels of land had an process is planned to address the needs of the landowners and excessive number of access points, whereas others were conveys their concerns to their commissioner before the left with a few. commission acts.