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4 A. Current Balancing Factors or Context Sensitive specific results. Two unique features of Practical Design Design Policies are that it provides flexible parameters so that design teams can be confident that a particular solution is Numerous examples of flexible design were identi- "good enough" and sufficient to improve the transporta- fied. More than half of the states have adopted policy tion system, without being excessive. It allows engi- statements directing designers to make decisions based neers to take the concept across a system level, down to on factors such as safety, environmental, historical, and a corridor level, and then apply it to each project. It is a economic concerns rather than focusing only on compli- way to let "engineers engineer"...not just apply criteria ance with rigid standards. The following policies were by the book. It is important to understand that Practi- found in the survey responses and via Internet re- cal Design does not throw out engineering guidance or search. standards. Rather, flexibility in design typically re- quires more information and a higher level of analysis California Director's Policy: The Department uses when defining and deciding on the most appropriate CSS as an approach to plan, design, construct, main- design value for a particular location. It requires main- tain, and operate its transportation system. These solu- taining focus on the project's purpose and need and a tions use innovative and inclusive approaches that in- clear process for approving and documenting the ra- tegrate and balance community, aesthetic, historic, and tionale for important design decisions. It requires good environmental values with transportation safety, main- use of engineering judgment to assess the severity of tenance, and performance goals.5 The context of all pro- adverse consequences, evaluate design tradeoffs, and jects and activities is a key factor in reaching decisions. mitigate risks to the extent it is practical.8 Missouri, Context must be considered for all State transportation Kentucky, and Kansas have similar programs. and support facilities when staff is defining, developing, Pennsylvania and New Jersey have adopted a pro- and evaluating options. When considering the context, gram called "Smart Transportation."9 The following issues such as funding feasibility, maintenance feasibil- concepts are explained in their Smart Transportation ity, traffic demand, impact on alternate routes, impact Guidebook. on safety, and relevant laws, rules, and regulations must be addressed. Tailor solutions to the context--The design of a Georgia Quality Control/Quality Assurance road should reflect the surrounding environment and (QC/QA) Program: the role it serves in the community by using transitions The...Quality Control and Quality Assurance program through rural, suburban, and urban communities and has been developed by the Engineering Division of the reflect the unique conditions along the way. Georgia Department of Transportation to ensure the en- gineering, design, plans and quantities developed by our Tailor the approach--The approach to identifying design offices are supported by comprehensive studies transportation needs and potential solutions should be and sound engineering judgment, comply with estab- developed in partnership with the community, project lished polices, guidelines and standards, and contain ap- team members, and other interested parties early in the propriate design flexibility and cost saving measures.6 process. Maryland has two policies that accomplish context Plan all projects in collaboration with the commu- sensitive goals: The publication "When Main Street is a nity--It is necessary for the New Jersey Department of State Highway" documents its CSD approach, and its Transportation (NJDOT) and the community to work Complete Streets Policy ensures that all users of the together to ensure that appropriate land use controls transportation network are taken into account in design are put in place and the roadway design supports com- practices.7 munity goals. Oregon: "Practical Design" is a strategy adopted to Plan for alternative transportation modes--Similar reduce cost and still deliver tangible benefits to the to the Complete Streets concept, Smart Transportation traveling public from improvements made. At a mini- encourages roads to be designed with all users in mind, mum, it considers safety, economic development, com- balancing vehicular and nonvehicular needs. munities if a project passes through them, the environ- Use sound professional judgment--The use of a ment, the overall transportation system (not just flexible design approach is essential to providing a con- highways), and cost. text sensitive roadway that meets the unique circum- stances of a given community. This approach requires In Oregon, Practical Design is a systematic approach the designers to think outside of the box and use their to deliver the broadest benefits to the transportation professional judgment to develop a creative solution. system within existing resources by establishing appro- priate projects scopes and design guidelines to deliver 8 Email from Oregon Transportation Deputy Director 5 http://www.dot.ca.gov/hq/oppd/context-solution.pdf. Douglas J. Tindall regarding implementation of Practical De- 6 http://www.dot.state.ga.us/doingbusiness/Policies sign (Nov. 17, 2009). (Available at office of author upon re- Manuals/roads/OtherResources/GDOT_QCQA_Program.pdf. quest.) 7 9 http://www.roads.maryland.gov/ohd/MainStreet.pdf, http://www.nj.gov/transportation/works/njfit/ Maryland Complete Streets Policy, 2011. guidebook.shtm.

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5 Scale the solution to the size of the problem-- Counsel should review their state's design policy to Considering possible transportation solutions should ensure that the text of the policy and the practice of the first include lower-cost, lower-scale approaches such as department assist counsel and the agency when litiga- transportation system management and other nonca- tion occurs. There are several different types of policies, pacity adding solutions before seeking a widening al- as noted above. For instance, the California Director's ternative. Policy states that "[c]ontext must be considered for all State transportation and support facilities when staff is Summary of Survey Results defining, developing, and evaluating options. When Of the responding states, 19 (67 percent) said that considering the context, issues such as funding feasibil- the agency had a written policy that required staff to ity, maintenance feasibility, traffic demand, impact on consider and balance cost, environmental, scenic, or alternate routes, impact on safety, and relevant laws, historical significance when scoping and designing the rules, and regulations must be addressed." If and when project. the state is sued on a design defect claim, it would be very helpful to the defense if there is documentation in The responder from Illinois stated that the file of how each of the factors identified in the Di- "...designers must seek, to use all of the flexibility in- rector's policy was actually considered, addressed, or herent in the policies to craft the best possible solutions debated. to identified transportation problems." In Hawaii, the legislature has authorized and di- Oregon responded to the survey by stating that rected the agency to consider safety, environmental, "[a]t the core of our Practical Design program is the and historical aspects of the highway design, and all concept of delivering focused benefits for the transpor- modes of transportation during the design phase of new tation system while working within the realities of a construction and reconstruction. The law10 specifically fiscally-constrained funding environment--balance is exempts the people who made those decisions and the key." agency those people work for from liability should liti- Similarly, Maryland stated that it has adopted a gation occur as the result of a perceived flaw in the de- CSD approach on many state highway projects. In addi- sign procedure. This law practically guarantees that tion to CSD, the transportation department is now in very little litigation relating to new design will occur. the process of adopting a "complete streets" policy Vermont has a similar law. which ensures that all users of the transportation net- It is sometimes difficult to reconcile a department's work are taken into account during the design phase. public statements with the need for a sound legal de- Massachusetts adopted a guide that requires staff fense in the event of personal injury claims. If possible, to "consider and balance cost, environmental, scenic it may be helpful to the defense of a design case and and historical significance." The purpose of its guide is ultimately the agency to consider a policy that specifi- to "provide designers and decision makers with a cally states that while safety is an important factor that framework for incorporating context sensitive design will always be considered in the design of the project, it and multimodal elements into transportation improve- will be balanced with other equally important factors ment projects." such as economic, historical, and environmental consid- While many states do not currently have a formal erations. This language corresponds to the policy type written policy requiring staff to consider balancing of noted above as Category 2, policies that explicitly state historical, environmental, safety, and cost factors, most that safety is only one goal of CSD and that it must be of their survey responses indicated that those factors balanced with all the other goals, or Category 3, policies are considered during the design phase. that reference balancing of all factors, including safety. If the agency considers each of the factors to be equally Analysis of the Policies important, and that fact is noted in the policy, the The text of all the flexible design policies cannot be courts should give deference to the policy when deter- included in this publication due to their length. How- mining whether the agency acted reasonably in the de- ever, it appears that the policies fall into five categories: sign of the road. Counsel may be able to use the flexible design policy 1. Policies that reflect legislative approval of the as the basis of a discretionary immunity defense. As CSD process. will be discussed later, it is likely that the adoption of 2. Policies that explicitly state that safety is only one an overall design policy would be considered a discre- goal of CSD and that it must be balanced with all the tionary action by the governing body. Evidence that the other goals. governing authority adopted the policy after careful 3. Policies that reference balancing all factors, in- review of the competing public policy considerations cluding safety. lends credence to this proposal and could be the basis of 4. Policies that recommend some type of CSS but do a successful discretionary defense. not discuss the balancing factors contained within the theories. 5. Policies that recommend using CSS/CSD strate- gies but emphasize safety as the paramount factor. 10 HAW. REV. STAT. 264-20.