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33 right-of-way. If the permit is not approved, the property public highways constitute and are conditions and elements which demand of highway officials a program of highway owner has a right to appeal the decision. (When ODOT does designing, highway regulations, highway use and operation, not own access control rights and denies a request, it is rely- highway controls and highway safeguards which will make ing on its police powers.) The appeal board consists of the possible and insure a degree of safety and convenience and a type and class of service not possible under existing law. central office Access Management Coordinator, the Admin- istrator of the Office of Real Estate, and the Chief of Staff. (2) To the end that human lives may be saved, property The board reviews the issues and provides a final answer on damage minimized, transportation by motor vehicle promoted all applications. If the application is denied, and the and highway travel in general safeguarded, the legislature finds, determines and declares that ORS 374.005 to 374.095 landowner's application does not qualify for a variance, the is necessary for the preservation of public safety, the administrative appeals process is completed. If there are no improvement and development of transportation facilities in other means for the property owner to gain entry to their the state, the protection of highway traffic from the hazards of unrestricted and unregulated entry from adjacent property, the property, they may have to take legal action. In some cir- elimination of hazards due to highway grade intersections and cumstances they may file a claim against the person who sold in general the promotion of public welfare. them the landlocked land. In other instances, the landowner may seek legal action against ODOT either by means of a 374.010 "Throughway" defined. As used in ORS 374.005 to 374.095, "throughway" means a highway or street mandamus to gain an access permit or an inverse condemna- especially designed for through traffic, over, from or to which tion action. In the latter case, ODOT may seek to have the owners or occupants of abutting land or other persons have property appraised to determine the availability of compens- no easement of access or only a limited easement of access, light, air or view, by reason of the fact that their property abuts able damages for the access restriction. upon the throughway or for any other reason. Ohio has found the acquisition of access to be a success- 374.015 Department of Transportation to establish and ful means of controlling access on ODOT facilities. Because maintain throughways; highways to be designated throughways. (1) The Department of Transportation, in the transaction is recorded in each county office as part of the addition to and without restricting, limiting or repealing any chain of title, there is a clear understanding between ODOT powers and authority which it now has, may lay out, locate, and the abutting landowner (both current and future) that pre- relocate, adopt, establish, construct, designate, maintain and supervise the use and operation of new highways known as serves the access rights into perpetuity. throughways. ODOT will continue to use the various tools available to (2) Any relocated section of an existing highway and such it when controlling access. Each project brings its own portions of existing highways, which at the time they are designated as throughways have less than 10 commercial unique set of circumstances that demand specifically tailored businesses abutting thereon catering to the motoring public in solutions. In some instances, ODOT will continue to rely any one mile of such existing highway, may be designated and solely on its police powers to regulate access. In others, it constructed as or converted into a throughway by the department. As used in this subsection, "relocated" means a may elect to acquire total or partial access control to ensure highway or section thereof so located that for its construction that access is not affected by future land development in an entirely new right of way is necessary. the project corridor. In addition, on some projects they will use both police powers and acquisition to control access. (3) The authority and power of the department extends to and includes state highways within the corporate limits of Both police powers and acquisition of access rights play an cities, and with the approval of the municipal authorities may integral part in ODOT's overall access control strategy. extend to and include city streets. 374.025 Change from throughway to highway. Any OREGON state highway or section thereof which has been located, established, designated and constructed as a throughway may, in whole or in part, be changed from a throughway to an The Oregon DOT has acquired partial access rights from ordinary highway by the Department of Transportation if in its properties adjacent to the state highways that were deter- judgment such action will best serve public needs. mined to be "Throughways" following legislative authority granted to it in 1949. 374.030 Separation of throughways into separate roadways; ingress and egress. A selection of related Oregon Revised Statues follows (7). (1) The Department of Transportation may so design a (Italics have been added for emphasis.) throughway and so regulate, restrict or prohibit access thereto and use thereof as to best serve the traffic for which the 374.005 Policy and purpose of ORS 374.005 to 374.095. throughway is intended. In this connection and for such purpose (1) The kind, character and volume of traffic now moving over the department may divide and separate any throughway into public highways, the speed at which such traffic moves, the separate roadways or lanes by the construction of raised prime and essential factors such as speed, safety and curbings, central dividing sections or other physical separations, convenience to which transportation of persons and property or by designating separate roadways or lanes by signs, markers over public highways is entitled, the relation which such or stripes and the proper lanes for traffic by appropriate signs, transportation bears to the transportation systems of other markers, stripes or other devices. states and of the nation as a whole, the ever-increasing toll of injury to and death of persons and the destruction of and (2) After any highway has been so marked or designed no damage to property caused by and resulting from accidents on person has any right of ingress or egress to, from or across

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34 the highway to or from abutting lands, except at such points In addition to the acquisition of partial access rights from as may be designated by the department. the adjacent property owner, the Oregon DOT also used the 374.035 Acquisition of real property; effect of resolu- process to condition the type of land use that the reservation tion. (1) The Department of Transportation may, in the name of access would serve. The following is an excerpt from a of the state, acquire by agreement, donation or exercise of the presentation made by Leonard I. Lindas, Assistant Attorney power of eminent domain, fee title to or any interest in any real property, including easements of air, view, light and access, General and Chief Counsel, Oregon State Highway Depart- which in the opinion or judgment of the department is deemed ment, at the 1962 TRB Annual Meeting. necessary for the construction of any throughway, the estab- lishment of any section of an existing state road or highway as In those cases where, after conveyance by the grantor of all of a throughway or the construction of a service road. The his access rights, it is desirable to allow him certain rights of department may accomplish such acquisition in the same manner and by the same procedure as real property is access, the language used provides for acquired for state highway purposes, except that in case the acquisition is by proceedings in eminent domain the resolution Reserving for service of the said remaining property the right required under such procedure shall specify, in addition to of access from the Grantor's remaining property to the high- other provisions and requirements of law, that the real prop- way right of way at the following places and for the follow- erty is required and is being appropriated for the purpose of ing widths. establishing, constructing and maintaining a throughway. It is of extreme importance that the language describing the (2) A resolution adopted by the department stating and set- rights of access being allowed the property owner be exact, com- ting forth that a proposed highway is to be constructed as a plete, and unambiguous. There is a cogent reason for this--there throughway is conclusive evidence that the highway when are many and varied types of "rights of access" that can be constructed is a throughway with all the characteristics and granted, such as incidents prescribed by and provided for in ORS 374.005 to 374.095. 1. Unrestricted--This includes industrial, commercial, and all lesser uses. Although the Oregon DOT could have relied on the 2. Commercial--Generally "unrestricted" could be used here throughway designation to limit access, it elected to also inasmuch as the greater includes the lesser. 3. Residential--This includes ingress and egress to a place of acquire partial access rights from all properties along state residence, which would not include motels where one does designated throughways. This designation resulted in thou- not, as a general rule, reside. sands of miles of highway frontage in urban and rural areas 4. Agricultural--Width may become a point of concern here and involved a large number of individual acquisitions from because the width of farm machinery dictates large approaches. In wheat county, for instance, a width of 75 to abutting property owners during the 1950s and 1960s. These 100 ft is not uncommon to accommodate large harvesting purchases were often accomplished with the benefit of federal equipment. monies. 5. Harvesting of Timber Products--This is a common purpose in Oregon where access will be allowed only for the purpose of hauling out timber. The cost to purchase complete access rights from each 6. Farm Crossings--These are granted to provide the farmer abutting property owner would have been prohibitive as it with a grade crossing for animals and equipment in ordinary would have left the vast majority of properties landlocked. husbandry where the farm has been severed by construction To purchase access rights while leaving driveway opportu- of the highway. Ordinarily granted in lieu of providing an under crossing via a tunnel or tube (27). nities for the property the agency left a "reservation of access" to the highway. This action was memorialized in the property deed and also recorded on a right-of-way map and It is not clear if property owners understood that the Ore- shows up in a title search. gon DOT could disallow a driveway at a reservation of access if the driveway was to serve a land use that would gen- A reservation of access was often established at each erate more traffic than the stipulation in the property deed. location where the property owner had a driveway to the Over time, the agency found that it was too difficult to man- state highway. In addition, a property owner could negoti- age adjacent land uses through an access restriction in the ate for additional reservations of access at locations where property deed. With the exception of a farm crossing restric- they might later want or need an additional driveway to the tion, the Oregon DOT discontinued the practice of restricting highway. the reservation of access to a specific use as in the 1970s and adopted a process for a property owner to request the A reservation of access did not guarantee that the property removal of the land use restriction. The farm crossing restric- owner would be allowed to have a driveway at the specific tion in the deed remained in place because it restricted the location. The property owner must still go through the appli- reservation of access to only serve farm equipment crossing cation process for a driveway to the state highway. The state the highway and prevents the property owner from entering agency, acting under police power, could deny an application or leaving the highway at that specific location. In instances for a driveway at a reservation for any number of reasons, where the Oregon DOT had purchased partial access rights including if the property owner had other reasonable access since the 1970s, they often described the reservation of to the property. access as "unrestricted as to use."

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35 It is also unclear if property owners were always aware gon DOT staff to deny an application for a driveway at the that they would be required to go through an application and reservation of access appeared to violate the rights of the permit process, because the property deed stated that they property owner. As a result, the legislature passed the fol- had a reservation of access to the state highway at a specific lowing statute to provide the property owner with a means location. In addition, the property owner may not have to request compensation when the application for a drive- known that the Oregon DOT could deny the application for way is denied. a driveway if there was some other means of reasonable access to the property. 374.313 Claim for relief after closure of approach road; mediation; appraisal. (1) When the Department of Transportation closes an approach road for which a permit In one specific case, a property along a section of rural was issued under ORS 374.310 or denies an application for two-lane highway had a reservation of access in an area an approach road permit submitted pursuant to a grant or where the Oregon DOT had since determined the need to reservation of access contained in a contract, condemnation judgment or recorded deed, and the closure or denial is not the construct a passing lane on an uphill section. In the late result of conditions contained in a contract, condemnation 1990s, the property owner built a house and went to the judgment, recorded deed or permit, a person holding an agency to have a driveway permitted at the reservation of interest in the real property benefited by the access or proposed access may file a claim for relief as a contested case access. Owing to safety concerns resulting from allowing a under ORS 183.415 to 183.500 (7 ). driveway to a section of highway with a passing lane, the agency denied the application, because there was alterna- The agency had operated under a belief that a reserva- tive access to the state highway by means of the county road tion of access in a partial access control line did not result system. in any additional rights but limited where a property owner could apply for a driveway. Oregon DOT staff used police The property owner challenged the decision in circuit power regulations to determine if an approach (driveway) court. The judge instructed the jury that the Oregon DOT was would be allowed to the state highway at a reservation of under an obligation to deny the application if a driveway access, and often denied the request. The denials escalated resulted in a safety concern for the traveling public; however, a denial could result in damages to the property owner. The after 1991 when the agency adopted driveway spacing stan- jury determined that the driveway should not be allowed but dards for all of the state highways. These denials were often found that damages were warranted to the amount of approx- caused by the dilemma of where the reservations of access imately $75,000. The state agency appealed the decision to established in the 1950s and 1960s were and continue to be, the Appellate Court, which in turn affirmed the decision of inconsistent with the driveway spacing standards. The the lower court. appellate court decision and the statute have resulted in a situation where a reservation of access within the partial In this specific case, the property owner had only one access control line has risen to a property right of some reservation of access to the highway because the state had value that is now greater than when the access right was acquired all remaining access rights from the remainder of first acquired by the agency; therefore, it has become a the highway frontage. The court determined that in this sit- complex process for the state to deny an application for a uation, when the Oregon DOT denied any access at this driveway at a reservation of access. A denial may result in location, a taking had occurred and compensation was a compensable taking or the property owner may file a required even though reasonable access was available by claim for relief as a contested case. another roadway system. However, there are numerous instances across Oregon where a property owner abutting The benefits of retaining the partial access control rights the state highway has two or more reservations of access. as a means to limit access to the critical highway corridors It is less clear if the court decision of compensable in the state may outweigh the potential impacts of the recent damages would apply if the Oregon DOT allowed a drive- court decision and legislation. It is less clear if retaining the way at one reservation of access but denied a request for partial access control rights on those highways that have a driveway at another reservation of access to the same become functionally obsolescent will remain beneficial. property. The potential impact of the court decision and legislation could cost the agency an excessive amount in litigation, Simultaneous to the court proceedings, the Oregon Leg- appraisals, compensation, and staff time in those instances islature became concerned that Oregon DOT staff was where they deny an application for a driveway at a reserva- denying applications for driveways at locations where they tion of access. had previously left an opening in the partial access control line. Some of the concern by the legislature was because the The Oregon DOT used a dedicated public trust fund to Oregon DOT had negotiated with property owners adjacent acquire the partial access rights and therefore it is not to the highway as to the value of the partial access control allowed to vacate this property right. Rather, funds need to rights and made a determination where a reservation of be replaced in the trust in the event that the agency sells the access(es) could be allowed. A subsequent decision by Ore- right of access to another entity or person. It is unlikely