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5 CHAPTER ONE INTRODUCTION BACKGROUND Evolution of Access Rights in the United States The ability to use access control as a technique to manage In the United States in the early nineteenth century, the access to a highway or roadway is an important component responsibility of building and maintaining roads was given of a comprehensive access management program within an to local governments. The local governments had the ability agency. The technique can also be employed by agencies that to levy local residents for labor, materials, and money to con- do not presently have an access management program, struct and repair these roads. This was an expensive endeavor although careful consideration should be given to the road- that limited the construction of roads. At the same time, the ways where it is applied and the desired objective. first controlled access highways, or turnpikes, were devel- oped. Turnpikes had the advantage of being fully funded by Access control by the acquisition of property rights has users, so that the responsibility of building and maintaining been used on the Interstate Highway System since it was them was not dependent on the adjacent property owners. To mandated by the Federal-Aid Highway Act of 1956. How- protect the investment and toll revenue, special laws prohib- ever, a growing number of agencies are recognizing the ben- ited unauthorized entries and exits to the road. Thus, the first efits of acquiring property rights to control access on other access control was developed. With the development of turn- important arterial highways for the purpose of preserving pikes, it was recognized that access control was important to safety and mobility. achieving efficiency. However, the planning of the turnpikes or toll roads was not enough to shift the financial and main- The purchase of property rights can prevent undesirable tenance burden from the local landowners (2). accesses at the locations where the property rights were acquired. If the property rights are not acquired, the property With continued industrialization, the expansion and owner is often under the impression that there is a right to improvement of roads became a priority in the United States, access at all locations along the property frontage. This often- because the national economy depended on the links between expressed sentiment by the abutting landowner has evolved rural and urban areas. As a result, the existing system was over many centuries and continues to evolve today. Much of assessed and several conclusions were reached. One was the American law on the subject is based on English law. The realization that toll financing and private landowner financ- understanding of property rights as stated in late 13th century ing were not feasible ways to build roads. Another realiza- English law afforded abutting landowners few rights. tion was that the highways needed to be classified according to their purpose, which was the beginning of functional clas- "For as long as English law has been systematically sification (2). Eventually, this led to the need for controlled- recorded, it has held that the owner of land abutting a public access highways, which were designed for optimum mobil- highway owes various duties toward the user of the highway, ity. As a result, the access of adjacent landowners was which duties must, when necessary, override the owner's pri- restricted and allowed only at points permitted by the vate uses of the roadway or roadway lands" (1). The Statute of governing agency. Winchester (1285) required land owners with property adja- cent to the roadway to cut back brush and trees to a distance of 200 ft on each side of the road, "so that there may be neither Abutter's Rights dyke, tree, nor bush, whereby a man may lurk to do hurt." During the middle to late 19th century this evolution of abutter's rights led to the understanding that Later, property owners were required to clean and main- tain roadside ditches. If the construction of a roadway caused [O]wnership or occupancy of premises abutting on a highway ... water flow across the adjacent property, they could be carries with it certain rights in and to the use thereof, distinct required to receive the diverted water as well as the runoff from the general easement of passage. Generally these rights are water from the roadway. Court decisions in the 15th century described as (1) the right of access to and from the highway, (2) the right to have light and air come into abutting property across allowed highway users to cut through adjacent properties the highway, (3) the right to see and be seen from the highway, when the road became impassable, even if it meant breaking and (4) the right to lateral support of abutting land during down fences and crossing over cultivated fields (2). construction of the highway (2)

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6 However, a ruling by the U.S. Supreme Court in 1906 access, the cost to acquire all access rights would have been decreed that the Federal Constitution did not require the prohibitive, as it would have left the properties landlocked. states to give access rights to abutting landowners along new Rather than construct an alternate roadway system, or highway alignments. It is the states' responsibility to deter- acquire crossover easements to provide another means of mine whether access rights are a property right within their access, state agencies often acquired rights of access except state laws. As a result, the states' approaches on access con- at mutually agreed on locations and/or where existing drive- trol varied, although most chose to establish access control ways were located. through their police power in the mid-1940s (2). Before an agency acquired access along a roadway, the With the development of the Federal-Aid Highway Act of landowner could apply for access at any point along their 1956, 41,000 mi of the National System of Interstate and site frontage. The acquisition of access limited the locations Defense Highways were funded. One of the conditions for at which landowners could apply for access. The act of the grant of aid to the states was that states must fully control acquisition was the owner selling or granting access rights access to the highway facility and prohibit construction along the entire site frontage with the exception of various within the right-of-way. This meant that no private accesses segments. were permitted and all public street accesses occurred at grade-separated interchanges. This led to the development of This technique meant that states could acquire limited a highway system across the nation in which each state pos- access rights for a minimal cost, such as $100 to $500 for sessed complete control of access between the roadway and each abutting property, because the property still maintained the adjacent property owners. reasonable access. This acquisition was almost always memorialized in a property deed that would run with the For states to obtain the access rights to construct Interstate property title. The deed defined where access was acquired highways, they had to be mindful of the Due Process Clause and where the openings occurred. and Taking Clause in the 5th Amendment of the U.S. Consti- tution. This clause states that, "No person shall be deprived of Even though the property owner enjoys a right of access life, liberty, or property without due process of law, nor shall at a specific location, it does not generally guarantee that the private property be taken for public use without just compen- property owner may construct a driveway to the highway at sation" (3). The 14th Amendment made due process a require- the opening in the access control line, because this is subject ment applicable to all states and local governments. "The to police power. Although constructing a driveway is within requirement that one could not be deprived of property without the property rights of an owner, the driveway is placed on due process of law referred to the exercise of police power, and public property, and therefore needs to meet engineering and the requirement of just compensation applied when property safety standards. The property owner is almost always was taken for public use through eminent domain" (3). required to request permission from the controlling agency to construct a driveway at the location because the agency As stated in Nichols on Eminent Domain, has the authority of police power. The agency regulates how the driveway is constructed, which may include the denial of Although the ultimate issue of what constitutes a taking in fed- a driveway at the specific location. eral cases is a federal question governed by federal law, the meaning of "property" as used in the Fifth Amendment will nor- mally obtain its content by reference to state law. Consequently, This process can be difficult for abutting owners to under- in considering whether a property owner's potential access to an stand. Although an agency may not be required to allow existing or future highway is a compensable property right, the access onto a road facility, it is the landowner's perception law of the state will determine the nature of the property and federal law will determine whether the acts of the sovereign con- that they have a right to access any road that is adjacent to stitute a taking or the mere exercise of police power (4). their land. Thus, a landowner often expects to be compen- sated for the denial of direct access to an adjacent facility. A Most states currently have a "taking" clause similar to the landowner does, however, have a right to reasonable access one in the federal constitution. However, "some state consti- to the roadway system. Reasonable access may not be the tutions require the payment of compensation for the `damag- most convenient or direct access and may be provided ing' as well as the `taking' of property" (5). through a side street. The concept of purchasing access rights as a means of An agency uses eminent domain authority to purchase the managing the highway system was a popular concept in the right of access with compensation from properties adjacent 1950s and 1960s, confirmed with the success of the design to the roadway. Eminent domain is the acquiring of access and construction of the Interstate system that allowed no drive- rights with compensation because it is useful to the public. ways. At this time, many western states had hundreds of The agency uses its police power authority to approve or miles of urban and rural two-lane highways where the acqui- deny the application for a driveway. Police power allows sition of access rights was applied. Because the majority of agencies to limit access, usually through prohibition or reg- property owners along these roadways had no other means of ulation, to preserve the public interest.