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37 The ability to use access control as a technique to manage access to a roadway is an important component of a compre- hensive access management program within a transportation 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. Although a significant amount of literature is available to lead agencies in acquiring complete access control along transportation facilities, there is less guidance on the best method for agencies to acquire partial access rights. There is even less guidance on how to arrive at a value for the prop- erty right, how to manage the access right once it is acquired, how an agency might dispose of the property right in the event it is no longer needed, and how to arrive at a value if the access right is to be disposed of. The process of acquiring partial access rights is fairly con- sistent across the responding agencies, whereas the subsequent management of the access rights, organizational structures within agencies, disposal, and valuation of access vary con- siderably. The strategy of limiting access to roadways through par- tial access control generally occurs in one of two ways and, because it is key to the synthesis review, a significant portion of this chapter is devoted to the topic. The first method of achieving partial access control is by designation only. This means that the governing agency may limit private property access to the roadway without compensation within itsâ jurisdiction when another means of reasonable access is available to the property. The sec- ond method is to go through the process whereby the agency acquires partial access rights from the property owner adjacent to the roadway and may include leaving a provision for potential access to the roadway. The agency is generally required to compensate the property owner for the acquisition. Although the strategy of creating access control highways with police power by âstatutory designationâ is used by a small number of agencies across the country (15% on non- freeways and arterials and 9% on interchange crossroads), it appears to be a successful means of limiting access to the roadway system. An apparent benefit of this strategy is that there is no specific gap or opening in the partial access control line conveyed to the adjacent property owner that lasts for perpe- tuity. As a result: ⢠A designation of a partial access-controlled roadway does not require the agency to initiate negotiations with each property owner adjacent to the roadway relating to appraisal, determination of value, and acquisition of a property right. ⢠Each application for a driveway is reviewed on a case- by-case basis, allowing agency staff to determine if rea- sonable access is available to the property. Where it is determined that reasonable access is available, the agency is generally not obligated to approve the request for a driveway. The denial would generally not consti- tute a taking and therefore would not be compensable. ⢠In the event that the agency elects to allow access to the roadway, it can determine the best location to site the driveway based on spacing standards and safety con- cerns on a case-by-case basis. ⢠There is no deed record that runs with the property title that a right of access exists at a specific location along the roadway frontage. ⢠As driveway standards are developed or revised by an agency, it does not create a dilemma that openings in the access control line are incongruent with the driveway spacing standards or current sight distance require- ments. As there are no legal documents specifying a pre- cise location of where access is allowed, the agency may require property owners to modify or relocate existing driveways that do not meet spacing standards as oppor- tunities arise. These opportunities may include a rezon- ing of the property or any action that allows the agency to revisit conditions identified in the driveway permit. ⢠Management of the access control records can gener- ally be accomplished with a right-of-way map, which results in a fairly simple records search to determine access rights for a particular property. There should be no need to address the access control limitations in each individual property ownerâs right-of-way file. ⢠Disposal of partial access control requires a removal or lifting of the designation of the partial access control. Because there was no payment of public funds to an individual property owner, an agency may make a deci- sion to rescind the partial access control designation for any number of reasons. CHAPTER SIX CONCLUSIONS
38 ⢠Disposal of partial access control at a specific location may be allowed for those properties that are considered landlocked, where a driveway can be sited appropri- ately and safely. ⢠In the event of a transfer of a roadway to another juris- diction, the receiving agency may or may not decide to manage the roadway with the partial access control designation. ⢠A designation of partial access control treats all prop- erty owners consistently. This is not to say that there may be occasions where agency staff is inconsistent in dealing with individual property owners under police power when addressing a specific request for a drive- way. ⢠A potential downside of not having recorded deeds to define precise access locations may result in the lower- ing of access standards by current policy makers to allow additional access, whereas a deed makes this more difficult. ⢠If no other reasonable access is available and a drive- way cannot be permitted, an agency may be found to have affected a âtakingâ for which compensation is due. The second method to achieve access control is for an agency to acquire access rights from the property owner adja- cent to the roadway. Based on the responses to the question- naire for this synthesis, this process has been very successful along non-Interstate freeways and expressways, but not quite as successful when the technique is applied along other high- ways and arterials. States in the eastern United States and California have had success with the partial access strategy employed to develop expressways. All rights of access were acquired from the abutting property owners. Careful forethought and planning was used to develop an alternate road and street network to provide access to properties that would otherwise be land- locked. Public road connections were provided at designated intervals. This type of roadway has not seen a proliferation of access to adjacent properties over time and continues to serve the intended function. The technique of acquisition of partial access rights has been an effective method to limit access along the property frontage where the access rights have been acquired, espe- cially on expressways. When concerns do arise, they often relate to issues dealing with the gap or opening in the access control line. Some respondents indicated that they have expe- rienced problems as the opening in the partial access control line lasts for perpetuity and the precise location of the access opening is generally recorded in a legal instrument. This doc- ument may be misconstrued by the property owner who may believe that the document is an implied consent that a drive- way will be allowed. Over the years, the purpose of a roadway, along with stan- dards and policy, often evolve; however, the exact location of a gap or opening in the access control line does not. Addi- tional findings from the questionnaire follow: ⢠Some agencies acquire partial access rights from the abutting property owners and leave an opening for a driveway to serve a specific use. In the event that the land use is changed (e.g., from farmland to commer- cial), the agency may choose to prohibit direct access where the new use would result in additional vehicular traffic. It may also provide the agency with an opportu- nity to participate in the process when a change of land use is being considered by a local land use agency. ⢠The acquisition of partial access control rights can help prevent newly created subdivisions and partitions of properties from relying solely on the roadway for direct access to each lot. The underlying property owner may be required to provide a roadway network or some means of access to each of the newly created lots because direct access to the highway or arterial is lim- ited to certain locations. ⢠The acquisition of a partial access-controlled roadway requires the agency to initiate negotiations with each property owner adjacent to the roadway relating to appraisal, determination of value, and payment for a property right. ⢠An application for a driveway is limited to an exact location in the partial access control line irrespective of current driveway spacing standards or safety concerns. A request for a driveway at any other location requires a process within the agency to consider indenturing or moving the gap or opening to a revised location. A revi- sion to the location requires that the language in the recorded legal instrument be corrected or amended to reflect the new location of the gap or opening. ⢠An application for a driveway at the specific gap or opening in the partial access control may be denied if there is reasonable access available to the property. Reasonable access may include an existing or planned driveway to the same roadway at another location. A denial can lead to confusion and frustration for the property owner, because he/she previously negotiated for the gap or opening in the access control line when the agency acquired partial access rights. ⢠There is some form of a deed record that runs with the property title that a right of access exists at a specific location along the roadway frontage. This may convey to the property owner that the agency has applied appro- priate engineering and planning analysis and has deter- mined that driveways can be approved at each of the specific gaps or openings in the partial access control line when this may or may not be the case. ⢠As driveway standards are developed or revised by an agency, it can create a dilemma, because openings in the partial access control line are often incongruent with the driveway spacing standards or current sight distance requirements.
39 ⢠Management of the partial access control records can be very complex for an agency. A legal instrument is used, often right-of-way maps and/or right-of-way files, to record each gap or opening in the access control line. The agency often has a procedure that allows the agency and/or the property owner to go through a process to close or move the location of the specific gap or open- ing to a more desirable location. This process requires the agency to update some form of legal instrument to reflect the new location of the gap or opening in the access control line. Research for the access rights of a specific property can be complex and time consuming. ⢠Because acquisition of the access rights is normally purchased, disposal of those rights usually requires a determination of the value and purchase of the access rights to allow a gap or opening in the access control line. This often occurs by an appraisal process of the value of the property with and without the right of access. The difference between these two appraisals is often considered the value of the break in the access control line and the subsequent cost to receive a right of access. The appraised value for one access may be much higher than the original amount provided to the property owner when the partial access control was acquired. This can be especially true if the access rights were purchased when the adjacent property was farm- land or forestland, but the property has since been rezoned for industrial or commercial uses. ⢠Several agencies responded that even in those cases where a property owner went through a process to achieve an additional gap or opening in the access control line the agency was not required to allow a driveway at this location. This can lead to a significant public perception issue, especially if the property owner went through a costly process to achieve a gap or open- ing in the access control line. ⢠More than half of the agencies that responded to the questionnaire reported that the rules, policies, and pro- cedures associated with access rights that had been pre- viously purchased would not be applicable to another agency when the roadway was transferred to its juris- diction. One-third of respondents stated that the rules and policies associated with previously purchased access rights would apply when the roadway was trans- ferred to another jurisdiction. However, three respond- ing agencies were unsure what rules, policies, and procedures would apply. In cases where an agency that has previously acquired access rights along a roadway decides to transfer jurisdiction of the roadway to another agency, consideration should be given to the ownership and management and potential disposal of the access rights and the associated legal requirements. Because the access rights were often acquired using some type of public funds, it is unlikely that an agency can simply vacate those property rights. ⢠The process of the acquisition of partial access control along the roadway may not always be applied consis- tently to each property owner. A property owner may accept whatever offer the agency provides, although the adjacent property owner may negotiate for several gaps or openings in the access control line or an additional amount of money for the property rights that the agency has acquired. ⢠The agency, applying regulatory authority under police power, may be inconsistent when approving or denying driveway applications at a gap or opening in the access control line when compared with adjacent property owners. ⢠The gap or opening in the access control line may have been acceptable at the time that the partial access con- trol was acquired based on traffic speeds and volumes, especially if the acquisition occurred decades ago. That specific gap or opening may no longer be in a safe loca- tion based on the increase of traffic speeds and/or traffic volumes. Most information on the acquisition of access rights was produced in the 1950s and 1960s and centered on the processes and procedures necessary to facilitate the develop- ment of the Interstate Highway System. Based on the ques- tionnaire responses, the guidance that was provided and the subsequent ability to acquire complete access rights to pre- vent access to the highway system has been overwhelmingly successful when compared with those areas where partial access rights have been acquired. It would appear that much can be learned from the success of the Interstate system and, if possible, some of the same principles can be applied when using a strategy of partial access control to limit access to the roadway. Follow-up conversations with questionnaire respondents revealed that the roadway environment itself played a large role in peopleâs expectations as to whether or not they would be allowed a driveway. There are no driveways to the Inter- state Highway System and, if someone applied, the applica- tion would be denied. A highway with partial access control and numerous driveways creates an environment suggesting that more access will be allowed. It can be very difficult for an agency to refuse additional access to these types of road- ways. This can be made even more difficult if the decision is an economic one. Other issues related to partial access control include the continuing evolution of access needs on a roadway, multi- modal concerns, the wording used within the legal instrument, and the application of eminent domain versus police power. As the evolution of land use, city boundaries, travel mode options, traffic volumes, speeds and travel demands develop, a transit agencyâs need to limit access on roadways may change. This may even include changes of a more global nature, such as possible revisions to AASHTOâs Green Book sight distance requirements. A specific, defined location for
40 a gap or opening in the access control line has the potential to be located inappropriately. Conversely, as cities and com- munities expand along major roadways, a well-planned and implemented acquisition of partial access rights can be an effective method to limit access where mobility is desired over accessibility to adjacent properties. The survey responses show that there is no consistency on how cyclists and pedestrians are considered relative to access rights. Some agencies reported that the acquisition of access rights is meant to limit vehicular ingress and egress from the highway, and it is permissible for pedestrians and cyclists to cross the partial access control line. Other agencies noted that the partial access control line is meant to keep all modes of traf- fic from crossing the control line and entirely out of the right- of-way. Because of this apparent inconsistency, an agency should clearly define its objectives before acquiring partial access rights along a given facility. If the purpose is to prevent motorists from entering and leaving the roadway, it may still be appropriate to allow pedestrians and cyclists to access the right- of-way and travel parallel to the roadway. Considerations should include the type of roadway facility and how the pedes- trians and cyclists would interact with motor vehicles. Parallel pedestrian/bike paths and grade-separated crossings may be appropriate along freeways, although sidewalks and bike lanes might be provided on urban and suburban arterials. The survey results suggest that the wording used to define the opening in the partial access control line can be critical. Well-intentioned staff may add language in the legal instru- ment to qualify a high degree of specificity to the exact width of the opening and may even describe the type of land use that the opening will be allowed to serve. Although this may be seen as an additional step in limiting access to the roadway, the exactness in the legal description can create the impression that the agency has applied engineering and planning analysis to the process. It can also evolve into a situation where it cre- ates a right of access to the property owner that is greater than a common abutterâs right of access. In Oregon, the state department of transportation formerly described the openings as reservations of access and included the type of use that the reservation could serve. Using the reservation of access to limit land use became such a complex process to administer that the wording in the legal document was revised to âunre- strictedâ in reference to land use. Over time, many people have argued that the unrestricted wording in the legal document pre- vents the Oregon Department of Transportation from denying an application for a driveway at a reservation of access, and at a minimum, imposing any conditions on a driveway. A strat- egy now employed by some agencies is to only describe the beginning and ending points of the access control line and not to address the gap or opening in the access control line. The acquisition of partial access rights requires an agency to use the authority of eminent domain. The agency then almost always uses police power authority to approve or deny a driveway at the specific location. Court decisions have stated that it is sometimes difficult to recognize the difference between eminent domain and police power, although the two powers are distinct. Eminent domain takes property because it is useful to the public, whereas police power regulates the use of the property because the free use of that property would be detrimental to the public interests. Agencies, property owners, and the courts continue to find this issue difficult to understand. In conclusion, the acquisition of complete access control along a roadway has been a very successful technique to eliminate existing and future access to a roadway. A key to the success is the requirement of the agency to either purchase the adjacent property when the action results in a landlocked parcel or to ensure that some other means of rea- sonable access is available to serve the property. This can require a large initial investment, but effectively reduces future pressure on the agency to allow individual driveways to the highway or new road corridors. The practice of acquiring partial access control while pro- viding openings or gaps in the access control line as a means to provide access to the roadway has not been as successful for some agencies. Although historically it was relatively inex- pensive to acquire, partial access control can lead to significant issues for the agency and property owner in cases where the agency decides to deny a request for a driveway at an opening in the access control line that was previously agreed on. The agency uses eminent domain authority to acquire the access rights and the application of police power when considering the request for an individual driveway. The two concepts are often difficult to understand for the agency, the property owner, and the courts. This can lead to misapplication of the techniques and rulings by the courts that increase the property rights for an individual beyond what they had previously enjoyed and may include compensation for the property owner when the agency denies an application for a driveway. The acquisition of partial access rights can be very effec- tive if there has been engineering and planning analysis to determine where each driveway can be safely located and openings in the access control line are limited to those specific locations. This type of analysis allows an agency to provide a driveway at each opening in the access control line that would remain in the future, regardless of the type of land use that the driveway serves. If the agency determines that the opening in the access control line is not an appropriate location to allow a driveway in the future, or if additional traffic on the driveway would require the agency to close the driveway, it would seem unwise for the agency to leave an opening in the partial access control line. The general consensus among the right-of-way agency directors who responded to the survey was that the acquisition of access was a successful technique to reduce the amount of future access to the roadway. In the event that an agency desires to limit access to a roadway but is unable to acquire complete access control, the
41 agency should consider the application of access control by police power only. This generally requires the agency to have the authority to designate a roadway or highway as access controlled, although no acquisition of property rights is required, no valuation or appraisals are conducted, and no monies are exchanged between the agency and the abutting property owner. This technique allows the agency to use police power on a case-by-case basis when requests for driveways are submitted. Where the property has other rea- sonable access, the agency can deny the application without any form of compensation or approve the application for a driveway at the most ideal location along the roadway. When an application is submitted for a property with no other rea- sonable access, the agency may develop reasonable access to the property, allow a driveway to the roadway in the most ideal location, deny the application entirely, or, in certain cases, purchase the entire property. The subject of access rights is so complex that the ques- tionnaire distributed as part of this synthesis was purposely limited owing to the size of the project and the desire to obtain high response rates from the various agencies. There were many areas where additional questions would have allowed further exploration. Based on the research docu- ments reviewed as part of the literature review presented herein and the information gathered from the surveyed transportation agencies across North America it is suggested that the following areas be considered for future research: ⢠Explore the various techniques and successes of each technique to quantify the most successful techniques to limit or manage nonfreeway and arterial access. ⢠Evaluate the strengths and challenges of various organi- zational structures within agencies in the management of access rights. ⢠Explore the most successful practices in managing the records of the ownership of access rights through data retention and retrieval. ⢠Conduct research to understand if there are occasions when the ownership of access rights can become a liability for an agency.
