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8 CHAPTER two Basis For Access Management Programs And Policies The legal basis for managing roadway access provides the most state DOTs in the United States. The synthesis survey means for balancing the public interest and private property revealed that 33 state DOTs (66%) indicated that they have rights in making access management decisions. This chapter a formal access management program, and 17 state DOTs provides an overview of the legal and legislative basis for (34%) indicated that, although they did not have a formal access management programs and policies throughout the program, access was managed as an informal part of their United States, and the associated state of the practice based normal operation. on the survey responses. According to the survey, 22 (51%) of the 43 local agen- cies responding to the survey have a formal access manage- Background ment program, and 16 (37%) indicated that, although their agency did not have a formal program, access was managed Access management is multifaceted, including policy, plan- as an informal part of their normal operation. Three (7%) ning, design, operations, and maintenance. It is most effec- of the local respondents indicated that their agency did not tive when it is implemented at the system level (i.e., statewide, consider access management and two (5%) did not respond county, or local) and applied consistently by the different func- to the question. tional organizations within a transportation agency (3, p. 3). Williams and Levinson (2) noted that the formal devel- Legal Basis For Access Management opment of access management began around 1980. At that time, it became apparent that operational techniques alone The following narrative was adapted, in part, from the legal would not be able to mitigate the adverse effects of poorly review performed for Indiana DOT as part of the Indiana located or poorly planned access to neighboring land, that Access Management Study (4). excessive traffic signals reduce travel speeds and the sys- tem effectiveness, and that the proliferation of driveways From a legal perspective, access is the right to cross pub- has safety, operational, and visual impacts. It also became lic roads or highways, as well as the right to enter on or apparent that systematic access planning is essential, espe- lease land abutting such roads and highways. While private cially in growing areas: property enjoys the right of access to the general system of public roadways, this is not an unlimited right. The right Contemporary access management began with the Colorado State Access Code, adopted in 1981. . . . With of access must be balanced with the needs of and potential a declaration that all state highways are controlled harm to the general traveling public (5, p. 23). The authority access highways, the Colorado legislature gave the State of a government unit to implement an access management authority over the grant of access to state highways. This program involves a determination of the power of that unit was followed by the enactment of comprehensive access management regulations in Florida, New Jersey, Oregon, to regulate an abutting property owner's right of access to a and several other states. public way without compensation. While the specifics of the regulations vary, they have In most cases across the United States, managing vehi- several common features: (1) an access classification system that builds upon the roadway functional cle access has taken the form of regulating or prohibiting classification system, (2) permitted access for each access the construction of driveways. Many states have statutory class, (3) signalized and unsignalized access spacing, (4) authority to promulgate administrative rules and regula- means of enforcement, and (5) provisions for variances. Many also include procedures for state/local adoption of tions for driveways. They regulate the construction of corridor management plans, which replace system-wide driveways along the state highway system by requiring a standards as a basis for permitting. (2, p. 14) permit from the state DOT in compliance with the agency's rules and requirements. Access management practices--whether part of a formal access management program, or conducted informally as The legal authority of a state DOT to regulate access to part of normal business operations--currently are in use at the state highway system is conferred in the police powers

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9 of the state and the state's right of eminent domain. Police In some states, the courts have held that access points power confers authority on a government unit to control can be regulated because a property owner is not entitled to access for public health, welfare, and safety. Police power is unlimited access at all points along a highway. In addition, a construct of statute, rules, and regulations. When access ingress and egress generally can be made more circuitous rights are controlled under police power, the impact of the and difficult for an abutting property holder without consti- regulation on the property holder is not compensable. tuting a taking of private property. Traffic regulations that provide access only at designated points are almost univer- Eminent domain is the right of a government unit to take sally regarded as reasonable. private property for a public or semipublic use. Under a rec- ognized rule in the law of eminent domain, when access The abutting property owner also may have no right to regulations are characterized as a taking of property for a the continuance or maintenance of the free flow of traf- public purpose by government authorities, payment of just fic past his property, and thus, no compensation may be compensation is necessary. required if traffic is diverted from an abutter's premises or made to travel a more circuitous route. Establishing divided Types of traffic regulations that have tended to be upheld highways on which U-turns and left turns are permitted only by courts under police power include one-way streets, traf- at designated points (by either physical dividers or regula- fic signals, stop lines, and prohibitions against certain turns. tions) has been consistently upheld as reasonable based on Courts consistently have upheld as reasonable divided high- this principle. ways on which U-turns and left turns are permitted only at designated points by either physical dividers (including Courts across the country, however, have not given broad median strips) or regulations. This decision is based on the general police powers to highway authorities to exert police principle that an abutting property has no right to the con- power to eliminate or reduce access rights without paying tinuance or maintenance of traffic flow past that property. compensation to abutting property owners. Instead, indi- vidual courts have made determinations on police power The nature of the right to access varies among the states. and eminent domain based on the specific facts of the par- Whether the right of access has been regulated merely for ticular case. This makes it difficult to draw broad conclu- the public safety or welfare by the exercise of police power, sions regarding the ability of any given highway authority or whether the regulation amounts to a compensable taking to implement new methods of access regulation. under eminent domain, is a question courts have had great difficulty in resolving. It appears that no strict, generally States with access managementrelated statutory author- accepted definition of what constitutes "deprival" of a right ity or administrative rules have the strongest legal backing of access to and from a public highway has been developed. for their access management programs and policies. Figure When a court seeks to determine whether a property holder 4 identifies the percentage of responding DOTs that have has been granted "reasonable" access or deprived of a right statutory authority or administrative rules related to access of access, the court balances the abutter's rights against management. public health, welfare, and safety. As indicated in the 2003 TRB Access Management Manual (1), State courts frequently inquire whether access has been substantially diminished or impaired when defining whether access is reasonable. Whether access has been substantially diminished is evaluated on a continuum from relatively minor route changes, which are not usually compensable, to extremely circuitous rerouting of access, or complete denial of access to a public street, which are compensable. Because circumstances of individual properties vary widely, the availability of reasonable access must be determined on a case-by-case basis. (p. 272) Resolving issues of the power of a government unit to reg- ulate access involves recognizing the right of access and bal- ancing that right against particular public and private rights. Statutory authorization for action by a government unit regu- lating access is essential; but that statutory authorization does not always have to specifically address access rights. Courts have found justification for reasonable regulation of access FIGURE 4 State DOTs with statutory authority or administrative among general charter or enabling provisions. rules related to access management (50 responses).

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10 As shown in Figure 4, 29 (58%) of the 50 state DOTs New Jersey indicated that they have statutory authority or administra- New Mexico tive rules related to access management. These states are Ohio as follows: Oregon Pennsylvania California South Carolina Colorado South Dakota Florida Texas Georgia Utah Idaho Virginia Illinois Vermont Indiana Washington Iowa Wisconsin Kansas West Virginia Maine Maryland In comparison, 21 (49%) of the 43 local agencies respond- Massachusetts ing indicated they have statutory authority or administrative Mississippi rules related to access management. Chapter six presents a Montana description of the Virginia DOT efforts to establish legisla- Nebraska tive authority for their access management program.