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31 This chapter presents three case studies that illustrate specific access control practices, specific issues, and current transi- tions that some agencies are making. These case studies (Montana, Ohio, and Oregon) were selected based on the range of experiences and current directions each agency is taking and are based on the answers to the survey question- naire and follow-up interviews. MONTANA The Montana Department of Transportation (MDT) is in the process of transitioning away from its old system of manag- ing and acquiring access to its new system of incorporating police power. Existing Program Historically, MDT acquired access through the purchase of access control and specified openings across the access control line in deeds. Access was viewed as a property right, and any restriction of the access was considered a taking. MDT experienced many challenges with this program: ⢠When a facility was considered for access control, the Access Control Resolution went directly to the Transportation Commission, before public review and comment. As a result, the facility often became access controlled without any public input to the MDT com- missioner. ⢠When MDT determined that a project was going to include access control, there was no clear or docu- mented approach for implementing limited access control on a project. ⢠During the acquisition of access, access points were a negotiated item in the right-of-way process between the individual property owner and the agency. This process led to discrepancies between neighbors and no consis- tency within the corridor. ⢠In their old program, the format included access thresh- old levels for individual projects. This created a first- come, first-serve approach, as landowners who requested accesses first used the available number of accesses for the facility. As a result, some parcels of land had an excessive number of access points, whereas others were left with a few. ⢠Similar to the state of Oregon, when openings in the access control line are specified in the deed it is diffi- cult to deny property owners access. The language in the deed is interpreted by the landowners and often by the courts to mean that the openings in the access con- trol are points of access for adjacent property owners. If 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 become expensive for the state. ⢠In addition, MDTâs program did not have any control over the use of the access. If the access was previously granted as an acceptable access, and the character of the road and the access changed, it was difficult for MDT to close it once it became unsafe, because this was con- sidered a deeded right. The only way to close the access was to purchase it and compensate the landowner. New Program Direction Montana is currently transitioning away from acquisition of access rights and is heading in a new direction with an approach of regulatory control. With the new program, landowners are ensured of reasonable access at the time of right-of-way acquisition. Any development that occurs after- ward is subject to the guidelines developed specifically for that corridor. This usually requires owners to use the existing acceptable access points. If the redevelopment creates a situa- tion where additional access or an access reconfiguration is required, the department is able to allow changes, as long as the owners mitigate any adverse impact to the facility. Although the owner has to cover the costs associated with mit- igation, the access itself is not an expense to the landowner. If at any point the access needs to be closed, it can be. As long as alternative reasonable access can be provided to the property, no compensation for the access rights is needed. With the new program, MDT expects in general to no longer acquire access rights, except in the case of environmental documentation that explicitly requires that access rights be purchased. To address some of the problems with the old system, MDT plans to use a public involvement process before des- ignating a limited access facility. The public involvement process is planned to address the needs of the landowners and conveys their concerns to their commissioner before the commission acts. CHAPTER FIVE CASE STUDIES
Potential Problems MDT has anticipated some potential new problems with this system. The new system does not indicate an access on a deed, whereas the earlier system indicated where the access was allowed on a recorded document. MDT is addressing this by including a reference to the right-of-way plans and the access control resolution on every deed. In addition, there have been concerns about additional requests for access during right-of-way negotiations. Although not shown in the plans, right-of-way agents receive requests for additional accesses. The new guidelines are writ- ten in such a manner that if additional access is desired, and if landowners can show a need, additional access points can be allowed. Although a concern, these issues are not new to the program. The old program received the same requests; however, there were no guidelines for the process. Many times the additional access was granted as a method to com- plete the negotiations. The new program requires that the right-of-way agent obtain permission before approving the additional access. If the additional access is inconsistent with the plan developed for the corridor, MDT can use its police powers to deny the landowners additional access. This process ensures fair and consistent treatment for all property owners within a project. Next Steps MDT is currently implementing the police powers approach on a project-by-project basis. As part of the process, MDT plans to update their manuals and other documentation to support their new direction. OHIO The Ohio DOT (ODOT) may acquire access rights on any type of project that is constructed, whether it is an Interstate freeway or other roadway. The decision to acquire access by complete or partial access control is made at the time the project plans are being developed and depends on the situa- tion. Through right-of-way acquisition, ODOT uses the opening width in the access control line to memorialize their control of access. For example, ODOT will leave 12-ft open- ings for a single residence, but wider openings for other land uses. Although ODOT may only allow for a driveway that is a specific width depending on the desired land use, they will provide a wider limited access break to accommodate curb radii when necessary. This is defined in the deed, as shown by examples from Ohio in Appendix D. Once the decision is made to acquire access rights, it is the right-of-way acquisition staffâs responsibility to acquire them. The rights are appraised, and ODOT pays the full fair market value as defined to the landowners under Ohio law. This can sometimes be very expensive when there is a total 32 loss of access or a major degradation in highest and best use to the landownersâ residual land. In an extreme example, ODOT once had to compensate a landowner $2.5 million for the land taken and damages to the remaining property when it was necessary to acquire all access from a commercial development to establish a freeway, even though the prop- erty owner did not become landlocked. In other instances, purchasing access rights is not a costly investment. This can occur when ODOT only purchases control at specific accesses and/or when the landowner maintains acceptable access to alternate roads in the âafterâ situation. Once access is acquired, ODOT prefers not to dispose of it. However, in limited circumstances, ODOT will allow a modification to existing access control. To do this, abutting property owners must apply for a permit to access the road. Permits are granted by ODOT at no charge; however, they often come with requirements and restrictions. The property owner must locate their access where ODOT finds the least disruption to the through traveling public. They may also be required to build crossovers, acceleration and deceleration lanes, or install traffic signals and signs. Often, for signifi- cant developments, ODOT requires Traffic Impact Studies at the applicantâs expense. If the access rights are owned by ODOT in easement or fee simple, the department must also convey the necessary access rights at the same time the permit is issued. If the access rights are owned in fee simple, then the rights are appraised to determine their fair market value, and the landowner must agree to pay for these rights before the trans- fer of ownership of the access rights and the issuance of any necessary permits. Fair market value of the fee owned access rights to be conveyed are established by an appraisal that considers the value of the property without the new access and the value of the property with the access. The appraiser also accounts for necessary zoning change costs, utility costs, construction costs, and entrepreneurial profits. Once the value is determined through this process, ODOT will settle for that amount from the landowner as compensation for ODOTâs conveyance of the access property rights. Statutorily, ODOT cannot charge for easement vacations; therefore, there is no landowner payment when the access rights are owned solely by easement. FHWA does not par- ticipate in the acquisition of easements in Ohio. Additionally, FHWA cannot approve the disposal of easements (or release of access controls) where federal funds were used in the acquisition of easements, because ODOT cannot charge for the release of easements. If a landowner desires an access where ODOT does not own access control rights, the landowner is still required to apply for a permit. If the permit is approved, the landowner is provided with a permit to do the necessary work in the
33 right-of-way. If the permit is not approved, the property owner has a right to appeal the decision. (When ODOT does not own access control rights and denies a request, it is rely- ing on its police powers.) The appeal board consists of the central office Access Management Coordinator, the Admin- istrator of the Office of Real Estate, and the Chief of Staff. The board reviews the issues and provides a final answer on all applications. If the application is denied, and the landownerâs application does not qualify for a variance, the administrative appeals process is completed. If there are no other means for the property owner to gain entry to their property, they may have to take legal action. In some cir- cumstances they may file a claim against the person who sold them the landlocked land. In other instances, the landowner may seek legal action against ODOT either by means of a mandamus to gain an access permit or an inverse condemna- tion action. In the latter case, ODOT may seek to have the property appraised to determine the availability of compens- able damages for the access restriction. Ohio has found the acquisition of access to be a success- ful means of controlling access on ODOT facilities. Because the transaction is recorded in each county office as part of the chain of title, there is a clear understanding between ODOT and the abutting landowner (both current and future) that pre- serves the access rights into perpetuity. ODOT will continue to use the various tools available to it when controlling access. Each project brings its own unique set of circumstances that demand specifically tailored solutions. In some instances, ODOT will continue to rely solely on its police powers to regulate access. In others, it may elect to acquire total or partial access control to ensure that access is not affected by future land development in the project corridor. In addition, on some projects they will use both police powers and acquisition to control access. Both police powers and acquisition of access rights play an integral part in ODOTâs overall access control strategy. OREGON The Oregon DOT has acquired partial access rights from properties adjacent to the state highways that were deter- mined to be âThroughwaysâ following legislative authority granted to it in 1949. A selection of related Oregon Revised Statues follows (7). (Italics have been added for emphasis.) 374.005 Policy and purpose of ORS 374.005 to 374.095. (1) The kind, character and volume of traffic now moving over public highways, the speed at which such traffic moves, the prime and essential factors such as speed, safety and convenience to which transportation of persons and property over public highways is entitled, the relation which such transportation bears to the transportation systems of other states and of the nation as a whole, the ever-increasing toll of injury to and death of persons and the destruction of and damage to property caused by and resulting from accidents on public highways constitute and are conditions and elements which demand of highway officials a program of highway designing, highway regulations, highway use and operation, highway controls and highway safeguards which will make possible and insure a degree of safety and convenience and a type and class of service not possible under existing law. (2) To the end that human lives may be saved, property damage minimized, transportation by motor vehicle promoted and highway travel in general safeguarded, the legislature finds, determines and declares that ORS 374.005 to 374.095 is necessary for the preservation of public safety, the improvement and development of transportation facilities in the state, the protection of highway traffic from the hazards of unrestricted and unregulated entry from adjacent property, the elimination of hazards due to highway grade intersections and in general the promotion of public welfare. 374.010 âThroughwayâ defined. As used in ORS 374.005 to 374.095, âthroughwayâ means a highway or street especially designed for through traffic, over, from or to which owners or occupants of abutting land or other persons have no easement of access or only a limited easement of access, light, air or view, by reason of the fact that their property abuts upon the throughway or for any other reason. 374.015 Department of Transportation to establish and maintain throughways; highways to be designated throughways. (1) The Department of Transportation, in addition to and without restricting, limiting or repealing any powers and authority which it now has, may lay out, locate, relocate, adopt, establish, construct, designate, maintain and supervise the use and operation of new highways known as throughways. (2) Any relocated section of an existing highway and such portions of existing highways, which at the time they are designated as throughways have less than 10 commercial businesses abutting thereon catering to the motoring public in any one mile of such existing highway, may be designated and constructed as or converted into a throughway by the department. As used in this subsection, ârelocatedâ means a highway or section thereof so located that for its construction an entirely new right of way is necessary. (3) The authority and power of the department extends to and includes state highways within the corporate limits of cities, and with the approval of the municipal authorities may extend to and include city streets. 374.025 Change from throughway to highway. Any 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 ordinary highway by the Department of Transportation if in its judgment such action will best serve public needs. 374.030 Separation of throughways into separate roadways; ingress and egress. (1) The Department of Transportation may so design a throughway and so regulate, restrict or prohibit access thereto and use thereof as to best serve the traffic for which the throughway is intended. In this connection and for such purpose the department may divide and separate any throughway into separate roadways or lanes by the construction of raised curbings, central dividing sections or other physical separations, or by designating separate roadways or lanes by signs, markers or stripes and the proper lanes for traffic by appropriate signs, markers, stripes or other devices. (2) After any highway has been so marked or designed no person has any right of ingress or egress to, from or across
the highway to or from abutting lands, except at such points as may be designated by the department. 374.035 Acquisition of real property; effect of resolu- tion. (1) The Department of Transportation may, in the name of the state, acquire by agreement, donation or exercise of the power of eminent domain, fee title to or any interest in any real property, including easements of air, view, light and access, which in the opinion or judgment of the department is deemed necessary for the construction of any throughway, the estab- lishment of any section of an existing state road or highway as a throughway or the construction of a service road. The department may accomplish such acquisition in the same manner and by the same procedure as real property is acquired for state highway purposes, except that in case the acquisition is by proceedings in eminent domain the resolution required under such procedure shall specify, in addition to other provisions and requirements of law, that the real prop- erty is required and is being appropriated for the purpose of establishing, constructing and maintaining a throughway. (2) A resolution adopted by the department stating and set- ting forth that a proposed highway is to be constructed as a throughway is conclusive evidence that the highway when constructed is a throughway with all the characteristics and incidents prescribed by and provided for in ORS 374.005 to 374.095. Although the Oregon DOT could have relied on the throughway designation to limit access, it elected to also acquire partial access rights from all properties along state designated throughways. This designation resulted in thou- sands of miles of highway frontage in urban and rural areas and involved a large number of individual acquisitions from abutting property owners during the 1950s and 1960s. These purchases were often accomplished with the benefit of federal monies. The cost to purchase complete access rights from each abutting property owner would have been prohibitive as it would have left the vast majority of properties landlocked. To purchase access rights while leaving driveway opportu- nities for the property the agency left a âreservation of accessâ to the highway. This action was memorialized in the property deed and also recorded on a right-of-way map and shows up in a title search. A reservation of access was often established at each location where the property owner had a driveway to the state highway. In addition, a property owner could negoti- ate for additional reservations of access at locations where they might later want or need an additional driveway to the highway. A reservation of access did not guarantee that the property owner would be allowed to have a driveway at the specific location. The property owner must still go through the appli- cation process for a driveway to the state highway. The state agency, acting under police power, could deny an application for a driveway at a reservation for any number of reasons, including if the property owner had other reasonable access to the property. 34 In addition to the acquisition of partial access rights from the adjacent property owner, the Oregon DOT also used the process to condition the type of land use that the reservation of access would serve. The following is an excerpt from a presentation made by Leonard I. Lindas, Assistant Attorney General and Chief Counsel, Oregon State Highway Depart- ment, at the 1962 TRB Annual Meeting. In those cases where, after conveyance by the grantor of all of his access rights, it is desirable to allow him certain rights of access, the language used provides for Reserving for service of the said remaining property the right of access from the Grantorâs remaining property to the high- way right of way at the following places and for the follow- ing widths. It is of extreme importance that the language describing the rights of access being allowed the property owner be exact, com- plete, and unambiguous. There is a cogent reason for thisâthere are many and varied types of ârights of accessâ that can be granted, such as 1. UnrestrictedâThis includes industrial, commercial, and all lesser uses. 2. CommercialâGenerally âunrestrictedâ could be used here inasmuch as the greater includes the lesser. 3. ResidentialâThis includes ingress and egress to a place of residence, which would not include motels where one does not, as a general rule, reside. 4. AgriculturalâWidth may become a point of concern here because the width of farm machinery dictates large approaches. In wheat county, for instance, a width of 75 to 100 ft is not uncommon to accommodate large harvesting equipment. 5. Harvesting of Timber ProductsâThis is a common purpose in Oregon where access will be allowed only for the purpose of hauling out timber. 6. Farm CrossingsâThese are granted to provide the farmer with a grade crossing for animals and equipment in ordinary husbandry where the farm has been severed by construction of the highway. Ordinarily granted in lieu of providing an under crossing via a tunnel or tube (27). It is not clear if property owners understood that the Ore- gon DOT could disallow a driveway at a reservation of access if the driveway was to serve a land use that would gen- erate more traffic than the stipulation in the property deed. Over time, the agency found that it was too difficult to man- age adjacent land uses through an access restriction in the property deed. With the exception of a farm crossing restric- tion, the Oregon DOT discontinued the practice of restricting the reservation of access to a specific use as in the 1970s and adopted a process for a property owner to request the removal of the land use restriction. The farm crossing restric- tion in the deed remained in place because it restricted the reservation of access to only serve farm equipment crossing the highway and prevents the property owner from entering or leaving the highway at that specific location. In instances where the Oregon DOT had purchased partial access rights since the 1970s, they often described the reservation of access as âunrestricted as to use.â
35 It is also unclear if property owners were always aware that they would be required to go through an application and permit process, because the property deed stated that they had a reservation of access to the state highway at a specific location. In addition, the property owner may not have known that the Oregon DOT could deny the application for a driveway if there was some other means of reasonable access to the property. In one specific case, a property along a section of rural two-lane highway had a reservation of access in an area where the Oregon DOT had since determined the need to construct a passing lane on an uphill section. In the late 1990s, the property owner built a house and went to the agency to have a driveway permitted at the reservation of access. Owing to safety concerns resulting from allowing a driveway to a section of highway with a passing lane, the agency denied the application, because there was alterna- tive access to the state highway by means of the county road system. The property owner challenged the decision in circuit court. The judge instructed the jury that the Oregon DOT was under an obligation to deny the application if a driveway resulted in a safety concern for the traveling public; however, a denial could result in damages to the property owner. The jury determined that the driveway should not be allowed but found that damages were warranted to the amount of approx- imately $75,000. The state agency appealed the decision to the Appellate Court, which in turn affirmed the decision of the lower court. In this specific case, the property owner had only one reservation of access to the highway because the state had acquired all remaining access rights from the remainder of the highway frontage. The court determined that in this sit- uation, when the Oregon DOT denied any access at this location, a taking had occurred and compensation was required even though reasonable access was available by another roadway system. However, there are numerous instances across Oregon where a property owner abutting the state highway has two or more reservations of access. It is less clear if the court decision of compensable damages would apply if the Oregon DOT allowed a drive- way at one reservation of access but denied a request for a driveway at another reservation of access to the same property. Simultaneous to the court proceedings, the Oregon Leg- islature became concerned that Oregon DOT staff was denying applications for driveways at locations where they had previously left an opening in the partial access control line. Some of the concern by the legislature was because the Oregon DOT had negotiated with property owners adjacent to the highway as to the value of the partial access control rights and made a determination where a reservation of access(es) could be allowed. A subsequent decision by Ore- gon DOT staff to deny an application for a driveway at the reservation of access appeared to violate the rights of the property owner. As a result, the legislature passed the fol- lowing statute to provide the property owner with a means to request compensation when the application for a drive- way is denied. 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 was issued under ORS 374.310 or denies an application for an approach road permit submitted pursuant to a grant or reservation of access contained in a contract, condemnation judgment or recorded deed, and the closure or denial is not the result of conditions contained in a contract, condemnation judgment, recorded deed or permit, a person holding an interest in the real property benefited by the access or proposed access may file a claim for relief as a contested case under ORS 183.415 to 183.500 (7). The agency had operated under a belief that a reserva- tion of access in a partial access control line did not result in any additional rights but limited where a property owner could apply for a driveway. Oregon DOT staff used police power regulations to determine if an approach (driveway) would be allowed to the state highway at a reservation of access, and often denied the request. The denials escalated after 1991 when the agency adopted driveway spacing stan- dards for all of the state highways. These denials were often caused by the dilemma of where the reservations of access established in the 1950s and 1960s were and continue to be, inconsistent with the driveway spacing standards. The appellate court decision and the statute have resulted in a situation where a reservation of access within the partial access control line has risen to a property right of some value that is now greater than when the access right was first acquired by the agency; therefore, it has become a complex process for the state to deny an application for a driveway at a reservation of access. A denial may result in a compensable taking or the property owner may file a claim for relief as a contested case. The benefits of retaining the partial access control rights as a means to limit access to the critical highway corridors in the state may outweigh the potential impacts of the recent court decision and legislation. It is less clear if retaining the partial access control rights on those highways that have become functionally obsolescent will remain beneficial. The potential impact of the court decision and legislation could cost the agency an excessive amount in litigation, appraisals, compensation, and staff time in those instances where they deny an application for a driveway at a reserva- tion of access. The Oregon DOT used a dedicated public trust fund to acquire the partial access rights and therefore it is not allowed to vacate this property right. Rather, funds need to be replaced in the trust in the event that the agency sells the right of access to another entity or person. It is unlikely
that the Oregon DOT could unilaterally âreleaseâ or con- vey back access control where reservations of access exist to adjacent property owners without their consent. In effect, the properties that have reservations of accesses may have an elevated right beyond just the abutters right of access. It may mean that the agency will be in a position where it approves each application for a driveway at a reservation of access along its facilities even though it vio- lated their driveway spacing standard and only deny a request for a driveway at a reservation of access to those highways where it is dictated by traffic volumes, speeds, and safety concerns. It may be more difficult and expen- sive for the agency when they reconstruct or modernize a section of highway with a goal of achieving their existing driveway spacing standards. LESSONS LEARNED The case studies from Montana, Ohio, and Oregon illustrate the variety of experiences and the directions that state agen- cies are taking. All three states had similar programs of access acquisition in the past. In Oregon, the courts and leg- islature have set clear direction that an opening in an access control line results in a property right that is more significant than an abutterâs right of access. Owing to particular chal- lenges with its program in Montana, the state is moving toward a police powers approach of access control. In the cases in Oregon and Montana, the access rights that were acquired have prevented access to the state highway; the problems in the two states have almost always arisen where the agency allowed an opening or openings in the access control line. The experience in Ohio has shown that the acquisition of partial access control has been successful and has allowed the DOT to limit roadside use based on the width of the opening that was originally provided to the abut- ting property owner. It is clear from the case studies that 36 regardless of the methods used the management of access control should consider the following: ⢠The agency should be aware that the acquisition of par- tial access control and a separate driveway permitting process result in the use of both eminent domain and police power authority. It may be difficult to distinguish where the one ends and the other begins. This often leads to complexities for the agency, the adjacent prop- erty owner, and the courts. ⢠The program should have a clear understanding of the access control approach and should educate agency staff, landowners, and other involved parties. ⢠Openings in the partial access control line convey an understanding that a driveway will be allowed at that specific location; therefore, openings should only be allowed where the agency can approve a driveway. ⢠A stated width of the opening in the access control line can provide the transportation agency with the ability to only allow driveways consistent with the width of the opening. ⢠The program should consider the future and changing characteristics of the facility and have a plan to address the changing access needs. ⢠A program should also include a process for openings in the partial access control line to be revised in the event that access spacing standards are adopted or mod- ified by the agency. ⢠Considerable thought should be given to the legal description that defines the opening or break in the access control line. The meaning or intent of the description may tend to evolve over time and may grant more rights to the property owner than was originally intended. ⢠A statute or agency policy should define if a property owner will be allowed a driveway at each opening in the partial access control line when they have other access to the highway or some other means of reasonable access to the property.
