Access Rights (2005)

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5CHAPTER ONE INTRODUCTION BACKGROUND The ability to use access control as a technique to manage access to a highway or roadway is an important component of a comprehensive access management program within an agency. The technique can also be employed by agencies that do not presently have an access management program, although careful consideration should be given to the road- ways where it is applied and the desired objective. Access control by the acquisition of property rights has been used on the Interstate Highway System since it was mandated by the Federal-Aid Highway Act of 1956. How- ever, a growing number of agencies are recognizing the ben- efits of acquiring property rights to control access on other important arterial highways for the purpose of preserving safety and mobility. The purchase of property rights can prevent undesirable accesses at the locations where the property rights were acquired. If the property rights are not acquired, the property owner is often under the impression that there is a right to access at all locations along the property frontage. This often- expressed sentiment by the abutting landowner has evolved over many centuries and continues to evolve today. Much of American law on the subject is based on English law. The understanding of property rights as stated in late 13th century English law afforded abutting landowners few rights. “For as long as English law has been systematically recorded, it has held that the owner of land abutting a public highway owes various duties toward the user of the highway, which duties must, when necessary, override the owner’s pri- vate uses of the roadway or roadway lands” (1). The Statute of 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 dyke, tree, nor bush, whereby a man may lurk to do hurt.” Later, property owners were required to clean and main- tain roadside ditches. If the construction of a roadway caused water flow across the adjacent property, they could be required to receive the diverted water as well as the runoff water from the roadway. Court decisions in the 15th century allowed highway users to cut through adjacent properties when the road became impassable, even if it meant breaking down fences and crossing over cultivated fields (2). Evolution of Access Rights in the United States In the United States in the early nineteenth century, the responsibility of building and maintaining roads was given to local governments. The local governments had the ability to levy local residents for labor, materials, and money to con- struct and repair these roads. This was an expensive endeavor that limited the construction of roads. At the same time, the first controlled access highways, or turnpikes, were devel- oped. Turnpikes had the advantage of being fully funded by users, so that the responsibility of building and maintaining them was not dependent on the adjacent property owners. To protect the investment and toll revenue, special laws prohib- ited unauthorized entries and exits to the road. Thus, the first access control was developed. With the development of turn- pikes, it was recognized that access control was important to achieving efficiency. However, the planning of the turnpikes or toll roads was not enough to shift the financial and main- tenance burden from the local landowners (2). With continued industrialization, the expansion and improvement of roads became a priority in the United States, because the national economy depended on the links between rural and urban areas. As a result, the existing system was assessed and several conclusions were reached. One was the realization that toll financing and private landowner financ- ing were not feasible ways to build roads. Another realiza- tion was that the highways needed to be classified according to their purpose, which was the beginning of functional clas- sification (2). Eventually, this led to the need for controlled- access highways, which were designed for optimum mobil- ity. As a result, the access of adjacent landowners was restricted and allowed only at points permitted by the governing agency. Abutter's Rights During the middle to late 19th century this evolution of abutter's rights led to the understanding that [O]wnership or occupancy of premises abutting on a highway … carries with it certain rights in and to the use thereof, distinct from the general easement of passage. Generally these rights are 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 the highway, (3) the right to see and be seen from the highway, and (4) the right to lateral support of abutting land during construction of the highway (2)

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

7The concept of using total or partial access control as a means to limit access to a roadway is a critical component of a successful access management program within an agency or, at a minimum, developed in coordination with an access management program. This can help to ensure that the acqui- sition of access is consistent with the overall access manage- ment objectives. In the event that an access management policy or program does not exist in an agency, careful thought should be given to decisions on where access rights are purchased to ensure that the purchase meets the long-term objectives for the agency, other affected agencies, and the users of the roadway system. SYNTHESIS OBJECTIVE This synthesis (1) documents successful practices in acquir- ing property rights for managing highway safety and mobil- ity and (2) reviews current policies, legal and real estate literature, and other publications that address this subject. In addition, a nationwide survey was conducted to identify issues and practices as well as lessons learned and informa- tion gaps. Specific objectives of the synthesis included: • Summarizing the access rights acquisition, manage- ment, and disposal practices of each state; • Providing case examples of state programs; and • Identifying issues in current practice and lessons learned. METHODOLOGY The synthesis was developed through a comprehensive survey of state agencies, a review of published literature, and follow-up interviews with specific individuals to explore the practices in the acquisition, management, and disposal of access rights. The questionnaire was not intended to focus on the Interstate freeways, toll roads, turnpikes, or other major roads that are normally fully access controlled. Instead, it was developed to document how and when agencies purchase access rights along other roadways. In the event that access rights are acquired, the survey documented how the access rights are managed within the agency. Finally, the survey determined if access rights are ever disposed of and, if so, the process that allows these rights to be transferred back to the abutting property. Overall, 36 sets of responses to the questionnaire were received, which included 32 states and 1 city. Several states sent more than one response. Appendix B provides a list of responding agencies. In addition, survey respondents were asked to provide copies of applicable statutes, rules, and poli- cies relating to the acquisition, management, and disposal of access rights. These materials supplemented the material col- lected as part of the literature review process. Finally, inter- views were conducted to provide specific case studies that demonstrate the issues facing practitioners today. QUESTIONNAIRE DEVELOPMENT The questionnaire was divided into three basic sections: (1) acquisition of access rights, (2) management of access rights, and (3) disposal of access rights. The questionnaire is included in Appendix A. Acquisition of Access Rights In this section, the questions were crafted to determine if agen- cies acquired complete control of access along non-Interstate highways, eliminating all existing and future intersections and driveways, or if they elected to acquire partial control of access on those roadways, allowing certain intersections and drive- ways to remain in place. Questions 1b and 2b relate to decisions on how access rights are acquired and were compared with Questions 22b and 23b to determine if an agency has the same guidance when they dispose of access rights. It was also impor- tant to determine who within the state agency provided the authority to acquire access rights and the enabling statute or rules that allowed them to do so. The questionnaire addresses valuation and potential payment; however, as this varies greatly across the United States, the topic was not explored in depth. Question 6 relates to the Interstate Highway System and was included to determine how successful agencies had been in implementing complete access control as a means to pre- vent access to a roadway once rights had been acquired. The responses provide a comparison of the success rate of pre- venting access to the Interstate highways as compared with other transportation facilities where only partial access con- trol was acquired. Management of Access Rights The second section quantifies the level of effort that agencies commit to the management of access rights as a resource. Questions 7 and 8 were designed to discover if agencies used the authority of police power or other means to limit the num- ber of driveways. This section indicates that agencies are required to allow a property owner a driveway whenever and wherever there is an opening in the access control line. If a driveway is not allowed at an opening in the partial access control line, the questionnaire sought to determine under what criteria an agency could deny an application and if denied, whether or not the agency must compensate the property owner. If compensation is owed, the questionnaire sought to establish how the value is generated. Because the ownership of access rights is truly a resource, the questionnaire sought to determine how an agency man- ages this resource and the amount of communication and coordination that is required among staff. The questionnaire also attempted to learn if the coordination is top down only or requires all staff to communicate regardless of hierarchy

8within the agency. This is also meant to establish if the acqui- sition and management of the access right is housed in the same department as the staff who ultimately have authority to permit driveways at these locations. If not, then the ques- tionnaire attempted to discover the communication link to ensure that decisions are made appropriately. Other ques- tions relate to management procedures that agencies use to store, maintain, and retrieve information on access rights. Question 19 addresses multimodal considerations and was specifically included because it is widely accepted that pedestrians and cyclists cannot breach an access control line on an Interstate highway without specific and significant approval processes. The question sought to learn if agencies allow pedestrians and cyclists to cross those areas where they have acquired partial access control along roadways and, if so, the process that allows this activity to occur. Questions 20 and 21 were constructed to determine if a pur- chased access right remains the property of the agency when the highway is realigned or the right-of-way is modified. Disposal of Access Rights In this section, questions were developed to determine if agencies have established a process for the disposal of access and the processes that enabled that to happen. The term “dis- posal” used throughout this synthesis means the sale or release of property rights. In addition, Questions 22c and 23c attempted to determine where the authority lies within the agency to determine when access rights may be disposed of and if there is a division of authority between the purchase and disposal of property. Questions were also asked about how an agency determines a value for an access right when it is being disposed. Questions 22e and 23e were included to determine if the property owner was successful in achieving an opening in the access control line, would they be guaran- teed a driveway at that specific location and would they still be required to go through the permit process. Finally, the questionnaire asked about those circumstances when an entire road whose access rights had been previously acquired is transferred to another agency. The questionnaire sought to establish who owns the right of access after the transfer of the roadway is complete. These questions were meant to deter- mine if agencies had given long-term thought to what might happen if highways with partial access control become func- tionally obsolescent to the point where the agency no longer has any need to manage the access to the roadway. DEFINITIONS Both partial access control and complete access control are acquired on various types of facilities including freeways, highways, arterials, and crossroads at interchanges as depicted in Figure 1. This synthesis focuses on the acquisi- tion, management, and disposal of partial access control. Many different terms are used among the various sur- veyed transportation agencies. Therefore, for the purpose of this synthesis, the following definitions were used: • Access rights—legal ability of a property owner to access (or not access) an adjacent roadway. • Crossroads at interchanges—roadway that crosses over or under a freeway or arterial that is connected by ramps and is secondary to the main highway. The crossroad may be under the jurisdiction of another agency. • Disposal of access—sale or release of property rights. (The terminology used in the questionnaire referred to both disposal and relinquishment of access. During the process of developing the synthesis, it was determined that the word relinquishment conveyed a different mean- ing than was intended. Therefore, relinquishment has been omitted throughout the remainder of the document.) • Eminent domain—legal power that allows a public agency to take property for public use provided an owner is compensated for his/her loss (6). • Full control of access—preference is given to through traffic by providing access connections by means of ramps with only selected public roads and by prohibiting all crossings at-grade and direct private driveway con- nections. Generally, full access control is accomplished by legally acquiring the access rights from the abutting property owners (usually at the time of purchase of the right-of-way) or by the use of frontage roads (6). • Interstate freeways—Divided highways with all access limited to grade-separated interchanges. These high- ways are part of the Interstate Highway System. • Non-Interstate freeways—divided highways with all access limited to grade-separated interchanges. These highways are not part of the Interstate Highway System. • Nonfreeways and arterials—frontage roads, express- ways, and divided and undivided roadways, usually with at-grade intersections. Although other roadway connections and driveways are not always preferred, they may be allowed to access these facilities. (Note: These are referred to as non-Interstate highways and arterials in the appendices.) • Partial control of access—preference is given to through traffic to a degree. Access connections, which may be at-grade or grade-separated, are provided with selected public roads and private driveways. Access on expressways is usually limited to public road intersec- tions. Generally, partial access control is accomplished by legally obtaining the access rights from the abutting property owners (usually at the time of purchase of the right-of-way) or by the use of frontage roads (6). • Police power—authority of the government agency that owns or manages the roadway to regulate or restrict individual actions for the protection of health, safety, and general welfare of the public, including restrictions on access for adjacent property owners and the require- ment that any and all persons seeking a driveway to the roadway go through an approval or permitting process.

9REPORT ORGANIZATION To fully address the current practice and issues related to the acquisition, management, and disposal of access rights, the report has been divided into the six chapters described here. • Chapter one provides a brief historical overview and current trends in the acquisition, management, and disposal of access rights. In addition, this section high- lights the report focus and summarizes the report organization. • Chapter two focuses on the acquisition of access rights. This chapter includes a discussion of the various ways in which access rights can be acquired and an overview of current practices among jurisdictions. In addition, it addresses the varying criteria for acquiring access rights, the factors used in valuation and negotiation of access rights, the various practices owing to the differences in underlying state law, and the relationship between the exercise of police power and the acquisition of access rights. • Chapter three examines the management of access rights. The managerial element is discussed with regard to the administration of access rights and the organiza- tional characteristics that ensure that access rights acquisition, management, and disposal are used effec- tively to meet long-term goals. • Chapter four provides information on the disposal of access rights. This chapter focuses on the existing agency policies surrounding disposal and the factors used in valuation and negotiation when access rights are no longer required. FIGURE 1 Facilities addressed in this synthesis.

• Chapter five provides several case studies to demon- strate the specific benefits and potential problems associated with various access rights acquisition, management, and disposal techniques. In addition, a summary of lessons learned from these specific projects is provided. • Chapter six provides a final discussion of findings based on the literature review, survey questionnaire responses, and case studies. In particular, this chapter summarizes the current practices in the acquisition, management, and dis- posal of access rights. The synthesis report is completed with conclusions and suggestions for further research. 10