Public Liabilities Relating to Driveway Permits (2022)

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16 NCHRP LRD 85 Four attorneys reported there is no compensable taking when a permit is denied. Permit revocation is compensable in one state, and six states reported permit revocation is compen- sable in limited circumstances. ose limited circumstances occur when a highway that can be accessed by permit is con- verted to a controlled access highway (this is the case although normally permit revocation is not compensable), a statute re- quires compensation when a commercial property is deprived of reasonable access to the public road on the state highway system, when there is no other access, or when there is no other reasonable access. Only one jurisdiction was sued in the past ve years for revoking an access permit. e suit was an inverse taking. In that state suits led due to a permit revocation occur between one and ve times a year. ese cases are successfully defended some of the time. e success is attributed to jurors being receptive to the safety reasons for the revocation. Five out of six states have waived sovereign immunity from suit. One state reported they were exempted from claims based on negligence for permit denial. However, only one state has had a claim made for negligence in implementing its permit process within the past ve years. e one case reported was based on a claim that the transportation agency and a local en- tity worked together to negligently deny access. is particular matter has not reached a conclusion, but the attorney reports the transportation agency, when sued for negligence is only oc- casionally successful in defending a suit. Suggested improvements to the driveway permitting process included an administrative appeals process that is easier to navi- gate, and initiating an administrative process rather than having those denied a permit go directly to court. A response related to shared driveways recommended the investigator verify owner- ship rather than rely on the permit applicant in the neighbor. All respondents report they had not received a claim involv- ing an unpermitted access point. All respondents indicated liti- gation involving driveway permits was not a problem. ese answers conrm the disparity among states in den- ing access rights and interference with those rights. III. THE EVOLUTION OF ACCESS RIGHTS A. State Permitting Programs e requirement of an access permit is, by its very nature, a vehicle used to impose safety standards that protect both the owner of the property and the traveling public. In grappling with the legal status of an access permit, in Brazoria Cty. v. Basin Credit Consultants, 134 a Texas appellate court noted that a per- mit is a grant of authority to do that which would otherwise be unlawful. Harris County v. Shepperd, 156 Tex. 18, 291 S.W.2d 721, 726 (1956) (quoting Payne v. Massey, 145 Tex. 237, 196 S.W.2d 493 (1946)). It confers a right or power which does not exist without it. Id. And, whether the document constitutes a permit, as opposed to a con- tract or franchise, depends upon whether it aects conduct which the governmental entity is authorized to regulate via its police power. Johnson v. City of Austin, 674 S.W.2d 894, 897 (Tex. App. 1984) (not- 134 No. 07-01-0304-CV, 2002 Tex. App. LEXIS 6748 (Sept. 18, 2002). ing to the survey indicated their agency had been sued within the past ve years in an action based on the legal theory that a denial of a permit was a taking. Of those jurisdictions experi- encing litigation based on this theory, 67% estimated that they receive between one to ve cases a year and one jurisdiction indicated that it received 10 or more taking cases per year based on permit denial. Most of the time these cases are disposed of successfully on behalf of the transportation agency, with one jurisdiction citing a statute that exempts permitting decisions and activities from the state’s waiver of sovereign immunity as the reason for its success. e survey responses were slightly dierent when asked if revocation of an access permit was compensable. One jurisdic- tion reported a permit revocation is always compensable, 55% reported permit revocation was compensable in limited cir- cumstances, and 36% reported permit revocation was not com- pensable. When a revocation of the permit is compensable, it is because the remaining access is dened by statute or case law as a taking. Ninety percent of the jurisdictions indicated they had experienced no litigation based on permit revocation. e theory of the suit was the same as that for denial of an access permit; the revocation was tantamount to a taking. Suits based on this theory occurred in one jurisdiction no more than one to ve times per year and were usually resolved in favor of the transportation agency. e reported reason for success was a positive response by jurors to revocations because of safety rea- sons. Two jurisdictions reported retaining immunity from suit due to permit denial. All but one attorney indicated changes in access rights were not considered a taking unless the property was le with no rea- sonable access. Changes in access in one of the states is always considered a taking and requires compensation. Denial of an access permit is not compensable in ve states. Compensation is required in limited circumstances in the remaining seven states. ose limited circumstances in- clude damage to business operations brought under inverse condemnation and if there was no other reasonable means of access. Seven attorneys reported their agency had not been sued within the last ve years under the legal theory that a denial of an access permit was a taking. ree states reported they had been sued under this theory one to ve times within the last ve years. Of those three states, one jurisdiction indicated ten or more suits per year. e remaining two states reported one to ve suits per year. All states involved in this litigation reported they were successful most of the time in defending the case. Successful resolution of these cases involving permit denial was attributed to a waiver of immunity for licensing powers and functions which included permit responsibilities; the landowner created the problem by selling a portion of the property contain- ing the access point; the matter was dropped by the landowner; or there was reasonable access remaining. However, in many instances the transportation agency purchases additional prop- erty to avoid continued future litigation over driveway permits each time the property changes hands.

NCHRP LRD 85 17 ing that a license or permit “has the purpose of regulation under the police power”).135 In DOT v. Amoco Oil Co.,136 an Illinois judge applied the Basin Credit decision dening what a permit is and is not. e Illinois Department of Transportation (IDOT) had issued an oil company a permit to construct two entrances on the oil compa- ny’s property, which abutted a road slated to become a freeway. e permit was conditioned on the oil company’s agreement that it would not seek additional compensation from IDOT in the event a portion of the property was condemned for use of the freeway. IDOT condemned a portion of the property, closed the oil company’s driveways, and sought to enforce the agree- ment to bar compensation for loss of access. e argument was based on the property owner’s agreeing to the terms of the per- mit. e court rebuked the practice: In the case at bar, the statute allowing the Department to prohibit abutting property owners from constructing access driveways to a freeway was intended to promote the safety and convenience of highway tra c and eliminate the danger of accidents. Such a purpose might be served by conditions proscribing surfacing, dimensions, and illumination; however, it is clearly not served by a condition on a permit granting access which solely seeks to depress the property value in anticipation of future acquisition.137 In deeming the agreement unenforceable because it had attempted to aect conduct beyond what it was authorized to regulate, the court continued: A permit condition which depresses property value has nothing to do with public safety. If we were to hold that a property owner could waive his right to just compensation as a means of obtaining an ac- cess permit, the Department might use that condition to allow ac- cess where it otherwise would not under the guidelines of the statute. us, notwithstanding the inequities of Amoco’s conduct, the fact that it accepted the permit is of no consequence.138 e method by which access management programs per- form their function is the use of “[d]riveway regulations [which] generally control right-of-way encroachment, driveway location, driveway design, sight distance, drainage, use of curbs, parking, setback, lighting, and signing.”139 In Goodfellow Tire Co. v. Comm’r of Parks & Boulevards,140 one of the rst driveway permit cases in Michigan, a reasonable 135 Id. at *4; see also, Ristvey v. Pa. Dep’t of Transp., 52 A.3d 425, 430 (Pa. Commw. Ct. 2012). See also, Serene Country Homes v. Northstar Ranch, No. 02-19-00375-CV, 2020 Tex. App. LEXIS 9679, at *20 (Dec. 10, 2020), where the court states that “police powers cannot be bound by contract.” But see Secretary of DOT v. Rehoboth Marketplace, 1992 Del. Super. LEXIS 96, *6-7, (1992), where the court stated, “permits are considered property rights in Delaware and depravation of this right is a taking requiring just compensation.” See 137 Square Feet of Land in Sussex County v. State, 259 A.2d 378, 380 (Del. 1969) for a decision to the contrary. 136 174 Ill. App. 3d 479, 528 N.E.2d 1018 (1988). 137 Id. at 489, 528 N.E.2d at 1024 (1988) (citation omitted). 138 Id. at 489, 528 N.E. at 1024-1025. 139 Gomez v. United State Dep’t of Agric., No. 12-964 LFG/KBM, 2013 U.S. Dist. LEXIS 208261, at *21 (D.N.M. Aug. 8, 2013) (citing AASHTO’s Roadside Design Guide and Policy on Geometric Design of Highways and Streets (Green Book). 140 163 Mich. 249, 128 N.W. 410 (MI 1910). access jurisdiction, the court considered an 1879 statute that granted the highway commissioner authority to make reason- able rules and regulations on the use of a boulevard. e statute never contemplated an abutting landowner might be denied the ability to construct a driveway. is rationale implied all drive- way permits must be granted but may include reasonable regu- lations and conditions such as number, location, construction plans, and materials to be used. However, the court made an interesting reference: it noted that the rights of owners of bor- dering lots must “not [be] inconsistent with the paramount right of the public to the use of the street in all its parts.”141 us the decision on whether to approve or deny a permit is infused with the dichotomy of interests: public safety (and investment) and private control over property. It is this paradigm that controls decisions about compensation and the driveway permitting process. State transportation agencies vary widely in their permit- ting processes, as shown in Table 1. Some states like New Jersey and Florida, have statutes that provide specic guidance on the permitting process. Others use state regulations to set out their permitting program. ese statutes and/or regulations, if well draed, can allow transportation agencies discretion over access issues.142 Other states use policy manuals, and still others have an even less formal system.143 And in some instances, statutes will reference standards that are to be put forth by regulation or policy. Survey results from transportation permit sta con- rmed this diversity. When states began to contemplate the need for a more robust access management system, they returned to the historical use of statutes and constitutional amendments to provide authority for regulation of access. [T]he means to be employed to promote the public safety are pri- marily in the judgment of the legislative branch of the government, to whose authority such matters are committed, and so long as the means have a substantial relation to the purpose to be accomplished, and there is no arbitrary interference with private rights, the courts cannot interfere with the exercise of the power by enjoining regula- tions made in the interest of public safety which the legislature has duly enacted.144 Wolf v. Dep’t of Highways,145 a case in Pennsylvania of a rea- sonable access jurisdiction, is an example of why relying on leg- islation can be benecial. In referencing a statute setting forth the powers of the Secretary of Highways, the court noted the di- chotomy of interest between the property owner and the public at large, as well as the power and responsibility of the legislature and executive branch to keep those interests in balance: 141 Id. at 254, 128 N.W. at 412. (emphasis added) (citations omitted). 142 But see High Rock Lake Partners, Ltd. Liab. Co. v. N.C. DOT, 366 N.C. 315, 315, 735 S.E.2d 300, 301 (2012) for discussion of a narrowly draed Driveway Permit statute in North Carolina. 143 See also Appendix C, A Chart Summarizing State Access Laws and Policies. 144 Missouri P. R. Co. v. Omaha, 235 U.S. 121, 127, 35 S. Ct. 82, 84, 59 L. Ed. 157,161 (1914) (citations omitted). 145 422 Pa. 34, 220 A.2d 868 (1966).

18 NCHRP LRD 85 In keeping with the legislative authority regarding access, the Michigan State legislature passed “e Driveway Act” in 1969, which allowed, among other things, for the revocation of permits.149 Minnesota provides another example of the possible benets of legislation or formal regulation. Minn. R. § 8810.5200 provides written exibility within the permitting program. It states that “[i]n the event of a change in land use . . . existing driveways are not automatically perpetuated, and new driveway access applications shall be submitted.”150 In Wisconsin, a free- way statute151 allows the Wisconsin Department of Transporta- tion to designate existing roads as controlled access pursuant to the police power and does not require compensation.152 In re Appeal of N.H. DOT,153 was a case that challenged a New Hampshire Department of Transportation (NHDOT) policy decision to limit the number of driveways. e court comment- ed about the statutory scheme as follows: [T]he legislature charged the DOT with the duty of developing and maintaining a safe statewide transportation network. With respect to the driveway statute, the legislature did not provide comprehensive standards for the DOT to follow when reviewing a particular drive- 149 Mich. Comp. Laws § 247.326 (1969) (Permit; issuance require- ments; revocation). 150 Minn. R. § 8810.5200 (2011) (Changes in use). 151 Wis. Stat. 84.25 (2021) (Controlled access highways) (2021). 152 See Nick v. State Highway Com., 21 Wis. 2d 489, 124 N.W.2d 574 (1963); Hoer Props. v. DOT, 5, WI 19-20, 366 Wis. 2d 372, 393-95, 874 N.W.2d 533, 543 (2016). 153 152 N.H. 565, 883 A.2d 272 (2005). [I]n the regulation of tra c and in the interest of public safety, the Commonwealth, acting within the scope of its police powers, may make reasonable rules and regulations which may dilute or diminish the rights of abutting property owners without liability to respond in damages. e theory is that, in such eld, the interest of the abutting property owner must be subordinated to the interest of the public at large. In Breinig146 . . . this Court stated: “e absolute prohibi- tion of driveways to an abutting owner’s land which fronts on a single thoroughfare, and which cannot be reached by any other means, is unlawful and will not be sustained. But the public authorities have the undoubted right to regulate the manner of the use of driveways by adopting such rules and regulations, in the interest of public safety, as will accord some measure of access and yet permit public travel with a minimum of danger. e rules and regulations must be reasonable, striking a balance between the public and the private interest. e abutter cannot make a business of his right of access in derogation of the rights of the traveling public. He is entitled to make only such use of his right of access as is consonant with tra c conditions and police requirements that are reasonable and uniform. . . . And highways may be so regulated by them [the Commonwealth and its political sub- divisions] as to limit the rights of abutting owners.147 . . . But such acts of regulation, or limitation of rights, under the police powers must be reasonable. ey cannot be sustained if they are capricious, arbitrary, or unduly delimit and unreasonably intermeddle with the rights of an abutting property owner. . . . Ordinarily the determina- tion of this question is a legislative or executive matter, and the pre- sumption is established that these o cials act lawfully in exercise of their discretion.”148 146 Breinig v. County of Allegheny, 332 Pa. 474, 12 A.2d 842 (1938). 147 Id. at 482, 12 A.2d at 847-48 (citations omitted). 148 Wolf 422 Pa. at 40-41, 220 A.2d at 72 (quoting Breinig, 332 Pa. at 483, 12 A.2d at 848). Table 1: Permitting Processes of Surveyed States and the Source of Regulation State Statute: 34.48% Regulations: 24.14% Policy/Procedures Manual: 31.03% or Professional Standards: 3.45% Colorado X Connecticut X Florida X Georgia Commercial Driveways Non-commercial Idaho X Kentucky X & Professional Standards Maine X Massachusetts X Minnesota X X Mississippi X Missouri X Montana X Oregon X Pennsylvania X Utah X Virginia X Washington X X

NCHRP LRD 85 19 way permit application. Instead, it provided basic parameters, such as concern for proper drainage structures, [citation omitted], and proper driveway width, . . . Beyond the express restrictions, the DOT necessarily retains discretion to determine how many access points it will grant to a particular parcel, in keeping with the particular safety concerns outlined in the driveway statute, . . . and the overarching promotion of public safety entrusted to the DOT.154 In 1989, the New Jersey legislature adopted the State Highway Access Management Act.155 In Revocation of Access of Block No. 613, Lots No. 4 & 5, Tp. of Toms River, Ocean Cty.,156 in reviewing the Act, the court in noted that the Act provided a framework for managing access. It classied state highways, standards for design, and location of driveways and intersections and required the New Jersey Department of Transportation to adopt a high- way management access code. e Act set standards to follow when revoking or modifying access and it allowed the commis- sioner to revoke access once a determination of an alternative access has been made, as long as standards on property zoning are met. Also, access points in existence prior to the eective date of the Act were grandfathered in.157 e statute’s parameters for alternate access set forth in the statute were upheld in Com’r of Transp. v. Marlton Plaza Assocs.,158 an appellate court decision which, quoting New Jersey Stat. Ann. § 27:7-94(c)(1) (2012), stated: Alternate access is assumed to exist if the property owner enjoys rea- sonable access to the general system of streets and highways, and in the case of a commercial property owner, if access is available onto “any parallel or perpendicular street, highway, easement, service road or common driveway, which is of su cient design to support com- mercial tra c to the business or use.”159 Courts have recognized statutes can be a tool to change an individual state’s law on access rights, as was noted in another reasonable access jurisdiction, Kansas. In Ray v. State Highway Com.,160 e court opined: is statute forms the basis for a dierent approach to the solution of questions concerning access rights than courts have had in some of their opinions. Heretofore they have approached the questions largely on the basis of individual interest alone. Under this statute properly applied, courts must now approach them on the basis of the convenience and safety of the people of the state without losing sight of the limited or restricted use the individual may make or has the right to make to access to such highways. Broad statements found in some opinions that under the common law an abutter has the abso- lute right of unrestricted ingress and egress to and from streets and highways must be modied to harmonize with the declaration of this statute. e change is an appropriate one for the legislature to make. As Mr. Chief Justice Harvey wrote in State, ex rel., v. Knapp, 167 Kan. 546, 555, 207 P.2d 440, “Individuals do not live alone in isolated areas where they, at their will, can assert all of their individual rights with- out regard to the eect upon others.”161 154 Id. at 571-72, 883 A.2d at 279-80 (citations omitted). 155 See N. J. Stat. Ann. §§ 27:7-89 to -98 (2021). 156 224 N.J. 53, 128 A.3d 1086 (2016). 157 Id. at 55, 128 A.3d at 1087. 158 426 N.J. Super. 337, 44 A.3d 626 (2012). 159 Id. at 348-49, 44 A.3d at 632-633. 160 196 Kan. 13, 410 P.2d 278 (1966). 161 Id. at 26, 410 P.2d at 288. Likewise, in Herman v. Schaer,162 the Arizona Supreme Court noted its controlled access statute was enacted with the purpose of adjusting the dichotomy between the public need and individual rights. e statute was deemed essential by the legislature for the protection of the lives and property of our citizens against the unrestrained exercise of any citi- zen of his own right. It was enacted to meet the needs of social and economic conditions brought about by twentieth century urbaniza- tion and the perfection and increased use of the motor vehicle. It calls for a necessary adjustment of two conicting interests – that to the public using the highways, and that of the abutter and his right of access thereto.163 In Darnall v. State,164 the court stated, “[t]he construction of a highway past a place of business gives owners no vested right to insist that it remain there as a changeless road in a changing world.”165 In 1991 State of Washington legislators passed RCW47.50, “Highway Access Management”,166 which designated each high- way as a controlled access facility unless it was dened as a limited access facility.167 e statute also distinguished between accessing a controlled access facility and accessing it in a par- ticular way,168 and further distinguished a connection169 from the roadway170 and from the permit under which the connec- tion is established. Based on the rst of these distinctions, the state can sometimes change the ow of tra c on a controlled access facility without paying just compensation to an abutting landowner.171 e legislative ndings and policy articulated in that Act are worth review. In draing access rights legislation, a substantial explanation of the need for changes in access management brought on by current and ever-changing safety conditions should be given. e legislative ndings should also be based on a robust discus- sion of the struggle between the public’s substantial investment in a safe highway system and the right of property owners to use their property. Legislative education should provide a historical outline of changing times and geographies and require exibil- ity in the way current access is managed in the future. An abut- ters’ rights jurisdiction may become a substantial or material impact jurisdiction. Or a jurisdiction where the abutter’s rights is locked into a particular location can redene the issue and allow more exibility of location for the sake of public safety. Where abutters’ rights are strictly interpreted, language such as 162 105 Ariz. 478, 467 P.2d 66 (1970). 163 Id. at 484, 467 P.2d at 72. 164 79 S.D. 59, 108 N.W.2d 201 (1961). 165 Id. at 67, 108 N.W.2d at 205. 166 Wash. Rev. Code § 47.50.010–47.50.090 (1991). 167 Wash. Rev. Code § 47.52.010 (1991). 168 Wash. Rev. Code Ann. § 47.50.010 (3)(b) (1991). 169 Wash. Rev. Code Ann. § 47.50.020(2) (1991). 170 Wash. Rev. Code Ann. § 47.50.030(1) (1991). 171 See Iron Gate Partners v. Transportation, 107 Wash. App. 777, 781, 27 P.3d 1259, 1261 (2001).

20 NCHRP LRD 85 was issued in 1975. Later that same year, ODOT adopted new highway safety standards for driveways. Two years later the real- tor applied for the remaining lots that abutted the road. ese permits were denied due to the new safety standards. e trial court denied the mandamus and the appellate court a rmed the denial but suggested there might be a right to compensation. Another action was led asking the court to compel ODOT to begin appropriation proceedings (condemnation). is time, the trial court granted the writ of mandamus. ODOT argued the action of denying the permit was an exercise of police power and not one of eminent domain. In upholding the trial court’s decision, the court noted that had the new regulations been in eect at the time of the platting of the property, denial of the permits would have been viewed as a valid exercise of police power. By approving the plan for the subdivision, ODOT created an interest in the land that it could not revoke without compensation. At that point, the realtor not only had the right to use the property, but a right to use it in a manner described in the plat. ere was no indication the ap- proved plan for permits contained any language that may have limited approval if standards changed prior to construction, or if any consideration was given to the new driveway safety stan- dards at the time the subdivision plan was under review by the permit o ce. As the above examples show, passage of statutory law has been used repeatedly to amend how states view access rights. “It is only in those clear and unmistakable cases of abuse of legislative authority that a court is authorized . . . to enjoin the exercise of legislative power.”181 Legislative ability to redene what it means to interfere with access rights must be assessed through the lens of how common law rights have been dened in the individual states, as all the examples come from either reasonable access or substantial impairment jurisdictions. Quite possibly, a change in the denition of interference with access rights in an abutters’ rights jurisdiction must be made in a state constitution before it can be enabled by statute. 1. Transfer of Permit upon Sale of Property e question of whether a permit transfers to the new owner upon sale of property can come up when a permit is revoked or denied, or when there is a condemnation action pending. Trans- ferability can be addressed by the language of the permit. In Harper Invs. v. DOT,182 a Georgia appellate court was asked to respond to this question. e GDOT had led a con- demnation action due to a highway widening project. GDOT moved for a partial summary judgment, arguing they should not be required to compensate the owner for interfering with access rights. e trial court granted GDOT’s motion, and the owner appealed. e property was purchased in 1958. It had a horseshoe driveway for access to the road. In 1962 and 1963 a building was constructed on the property and the owner ran a bait and tackle 181 Farmers-Kissinger Mkt. House v. Reading, 310 Pa. 493, 503, 165 A. 398, 402 (1933) (citations omitted). 182 251 Ga. App. 521, 554 S.E.2d 619 (2001). that in the Oregon statute172 seems a viable solution to notify new abutters that their rights can be limited, allowing a more uid access management plan. Sometimes statutes can redene access rights toward less exibility. Aer the opinion in Kelo v. New London,173 some states amended their constitutions to protect against such intrusions of property rights.174 In 2012, the Virginia electorate approved a constitutional amendment. at amendment, provides: e General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use. No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost prots and lost access, and damages to the residue caused by the taking. e terms “lost prots” and “lost access” are to be dened by the General Assembly.175 With that mandate, the Virginia legislature went on to de- ne “direct access” as “means ingress or egress on or o a public road, street, or highway at a location where the property adjoins that road, street, or highway.”176 e court in Hooked v. City of Chesapeake177 has weighed in on the denition of lost access. “In the wake of this constitutional amendment, the General Assembly enacted implementing legislation. ‘Lost access’ is dened by statute as ‘a material impairment of direct access to property, a portion of which has been taken or damaged as set out in subsection B of § 25.1-230.1.’”178 Prior to the implement- ing legislation, Virginia courts interpreted access as a right of reasonable and adequate access.179 Eagle Inv. Co. v. Weir,180 an Ohio case, raises issues about permit applications that are pending during the period when a permit management program is undergoing revision. A real- tor brought suit to force the Ohio Department of Transporta- tion (ODOT) to grant permits on property it was developing for a subdivision. A plan for the subdivision was submitted to ODOT in 1975, and the permit was approved. e abutting road had been constructed in 1924. e subdivision plat, including the permit plan, was approved by the county’s regional plan- ning commission in 1976. A permit for the rst residential lot 172 Or. Rev. Stat. § 374.405 (1951) provides: “No rights in or to any state highway, including what is known as right of access, shall accrue to any real property abutting upon any portion of any state highway con- structed, relocated or reconstructed aer May 12, 1951, upon right of way, no part of the width of which was acquired prior to May 12, 1951, for public use as a highway, by reason of the real property abutting upon the state highway.” 173 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005). 174 See e.g., Hooked Grp., LLC v. City of Chesapeake, 298 Va. 663, 669-71, 842 S.E.2d 413, 417-18 (2020). 175 Article I, § 11 of the Constitution of Virginia as amended (emphasis added). 176 Va. Code Ann. § 25.1-230.1. (2021). 177 298 Va. 663, 842 S.E.2d 413 (2020). 178 Id. at 671, 842 S.E.2d at 418. 179 See State Highway & Transp. Comm’r v. Dennison, 231 Va. 239, 343 S.E.2d 324 (1986). 180 No. 80AP-304, 1981 Ohio App. LEXIS 12916 (Mar. 26, 1981).

NCHRP LRD 85 21 obtain their own permit to either reconstruct or maintain the existing driveway.”184 B. Takings Liability: Denial and Revocation of an Ingress/Egress Permit: Eminent Domain Versus the Police Power Access permits are necessary because driveways abut public roads and impact the traveling public’s safety as well as the ability of the roadway to function as designed. Permits are considered a regulation of the use of the abutting property, and in the strictest sense, no property is acquired by a government entity when an access permit is issued, nor is an absolute right to access created. If permits were deemed to create a property right, it would seem some form of compensation would be owed to the public. How- ever, when dealing with denial of access permits, jurisdictions will impose compensatory obligations even though there has been no actual invasion of or intrusion onto the property. is will occur when the use is so restrictive as to signicantly limit the property’s use or impact the property’s value. It is referred to as a de facto taking because in reality, a property right has been taken without legally acquiring it. One example of a permit denial being tantamount to a tak- ing occurred in Streeter v. Cty. of Winnebago,185 when a road clo- sure interfered with a property’s access and allegedly reduced the value of the property. ere was no physical taking, only a limitation of access, although the property still had access by other means. e complainant claimed damages under a tort theory, but the complaint also asked for compensation because property was taken for public use without just compensation. e common law in Illinois provides that a landowner is en- titled to compensation where access is materially impaired by state action. e appellate court remanded the case for a jury trial to determine if access had been materially impaired and if so, what compensation was due to the owners. In Pennsylvania Coal v. Mahon,186 the United States Supreme Court stated, “the general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”187 In First English Evangelical Lutheran Church v. Cty. of L.A.,188 the court stated It would be a very curious and unsatisfactory result, if . . . it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inict irreparable and permanent injury to any extent, can, in ef- fect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use.189 A de facto or inverse taking can also occur during construc- tion. In Truck Terminal Realty Co. v. Commonwealth, Dep’t of 184 California Department of Transportation, Encroach- ment Permit Application Guide 4-5 (November 2018). 185 44 Ill. App. 3d 392, 2 Ill. Dec. 928, 357 N.E.2d 1371 (1976). 186 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922). 187 Id. at 415,343 S. Ct. at 160, 67 L. Ed. at 326. 188 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed.2d 250 (1987).. 189 Id. at 316-317, 107 S. Ct. at 2386-87, 96 L. Ed.2d at 265. business with a gas station. In 1963, the Georgia State Highway Department enacted Rules & Regulations for Driveway and Encroachment Control. e relevant regulation set a mini- mum space requirement between right-of-way and structures of 40 feet. e building was not in compliance with the regu- lation, it was 18.7 feet from the right-of-way. In 1978 GDOT granted the property owner a Temporary Conditional Permit for Commercial Driveway. It allowed the owner to pave the ex- isting driveway and to encroach on the right-of-way for 20 feet to allow the driveway to continue from the property line to the road. e permit provided that it was binding on all successors in ownership and only granted to such owners the right “to use temporarily a portion or portions of the highway right-of-way in the manner described above in violation of the . . . Rules and Regulations.”183 Plans were also attached depicting the driveway at its current condition. In 1988 GDOT granted a subsequent owner the same type of permit, allowing the owner to encroach 20 feet onto the right-of-way, noting the driveway was in vio- lation of the current standards, announcing it was binding on subsequent owners, and granted only temporary use as depicted in the attached plans. e property sold again in 1990 and the new owner was aware of the 1988 permit. In 1993, GDOT notied the owner of a planned road widening project and that it was revoking the 1988 permit. e notice required the owner to remove the en- croachment. GDOT then led a condemnation action. In re- sponse, the owner did not challenge GDOT’s right to rescind the permit, he only claimed that the revocation of the permit had no eect on his common law right of access. erefore, the owner was entitled to compensation for the taking of his access rights. GDOT led for summary judgment regarding compen- sation for loss of access. e lower court held the access at the location of the permit was permissive and granted the motion. e court found the access permit to be revocable and thus non-compensable. However, the owner retained a right of ac- cess separate and apart from the permit. If there was substan- tial interference with the right of access, it was compensable. e owner could have alternative access to the property on another abutting street or could be granted alternative access to the highway being widened and the lower court must consider these factors to determine if any compensation was due for the deprivation of means of access to property. Permits can, by their terms, be transferable or non- transferable upon the sale of the property. ey may also be transferable by the terms of a transportation agency policy. California Department of Transportation addresses this in its Permit Guide. When a private property owner applies for an en- croachment permit to build a driveway, the permit is issued for a reasonable amount of time, generally six months, to allow the property owner to construct, or have the driveway constructed by a contractor. “If the property owner sells the property three years later, the permit is not transferable to the new property owner. e new property owner(s) is required to apply for and 183 Id. at 522, 554 S.E.2d at 621.

22 NCHRP LRD 85 v. Marlton Plaza Assocs., Ltd. P’ship,196 the issue of whether the government regulation of a property was so onerous that it was tantamount to a regulatory ouster or de facto taking was be- fore the court. In anticipation of a road reconstruction project, NJDOT had closed one of several access driveways leading to a shopping center pursuant to the State Highway Management Act. Later, in a condemnation proceeding for the road project, the property owner attempted to include compensation for the closed access point as part of the compensation for the taking. e court described this duty to determine if a regulation is tan- tamount to a taking as a thorny problem with no set formula to determine the outcome. e di cult responsibility is to bal- ance [“t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has inter- fered with distinct investment-backed expectations”197 against the ability of the government to function if it weren’t allowed to negatively impact property values without paying for every such change in the general law.198 In keeping with the U.S. Supreme Court, which had recognized “that government may execute laws or programs that adversely aect recognized economic values,”199 the court determined the change in access should not have been considered as part of the damages. New Jersey is a reasonable access jurisdiction, and the court was keenly aware of that when rendering its opinion stating, “In the instant matter, a property owner’s right to access the state highway system is clearly dened by State law. While a prop- erty owner has a right of reasonable access to the state’s highway system, he or she does not have an absolute right to access the highway from any particular point on his or her property.”200 In City of Fayetteville v. M. M. Fowler, Inc.,201 a North Carolina condemnation action was sought to acquire a 287 square foot area from the corner of a property, a temporary construction easement, and the closure of one of four driveways. e property was leased to a gasoline service station business. North Carolina does not allow compensation for lost prots, lost rents, or loss of business, and the North Carolina Department of Transporta- tion (NDOT) asked the court to prevent such testimony prior to the trial. e trial court denied the request. e property owner testied the closing of the driveway would aect business and make the property less valuable. e rent charged was based on a xed building rent and a percentage rent based on the volume of gasoline sold. e owner testied the closing of the entrance would reduce gasoline sales by twenty-ve percent. NDOT’s objection to the testimony was overruled. e jury awarded the owner $32,000. e trial court did allow an instruction— 196 426 N.J. Super. 337, 44 A.3d 626 (2012). 197 Id. at, 353, 44 A.3d at 635 (citations omitted). 198 Id. 199 Id. (citing Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S. Ct. 2646, 2659, 57 L. Ed.2d 631, 648 (1978)). 200 Id. at 355, 44 A.3d at 636 (citing, N.J. Stat. § 27:7-90 (g), which reads: “e access rights of an owner of property abutting a State high- way must be held subordinate to the public’s right and interest in a safe and e cient highway.”) 201 122 N.C. App. 478, 470 S.E.2d 343 (1996). Transp.,190 the Pennsylvania Supreme Court held that the state eminent domain law did not provide damages for an impedi- ment of access during construction in a situation where patrons suered a temporary inconvenience by having to travel an addi- tional fourteen miles to reach the owner’s business. However, courts have been willing to distinguish inconvenience and bar- ring access to property for stretches at a time during the time of a road construction project. When the question of whether a temporary but complete lack of access to a business as a result of a public road project can be a taking was addressed by a Vermont court in Walker Motors, Inc. v. City of Montpelier,191 the court relied on the juris- dictional denition of “interference.” Vermont is a reasonable access jurisdiction. e court found that although complete lack of access was temporary and intermittent, it was still compen- sable and held the city responsible. When addressing de facto takings with regards to access, courts will look to whether a regulation or action taken during or aer construction can be deemed compensable interference, in keeping with their state’s interpretation of interference with access rights. In State v. Nat’l Amusements,192 a New Jersey drive-in movie owner had a triangular piece of property with driveways on two of the three roads abutting the property. e owner had plans to construct a ten-screen indoor movie theater. e New Jersey Department of Transportation (NJDOT) was seeking to deny access at two locations. ese closures would require patrons entering the property to drive 1.5 to 2.0 miles to get to the re- maining entrance. e exit from the property was only slightly more di cult, but much safer under the new design. e ad- ministrative law judge ordered NJDOT to pay compensation. NJDOT led suit to appeal the administrative decision. e State Highway Access Management Act,193 was enacted shortly before the trial court reached its judgment. is statute codied the common law on which defendant relied: a property owner was not entitled to access to his land at every point between it and the highway, but only to free and convenient access. ere- fore, the matter was remanded to the trial court for a determina- tion of whether defendant had convenient access and, if not, for compensation to be made.194 New Jersey’s statute also sets out ve criteria which must be met in order for an alternative access to be considered reason- able: “e alternate access must be (1) ‘onto’ a parallel or per- pendicular street or highway, (2) of ‘su cient design,’ (3) ‘con- venient,’ (4) ‘direct,’ and (5) ‘well marked.’”195 InCom’r of Transp. 190 486 Pa. 16, 403 A.2d 986 (1979). 191 No. 921-12-10 Wncv, 2013 Vt. Super. LEXIS 54 (Dec. 30, 2013). 192 244 N.J. Super. 219, 581 A.2d 1353 (1990). 193 N. J. Stat. Ann. §§ 27:7-90 e-g (1988). 194 Nat’l Amusements, Inc., 244 N.J. Super. at 220, 581 A.2d at 1354 (1990). 195 See, In re Revocation of Access of Block 1901, Lot No. 1, Borough of Paramus, Bergen Cty. Parkway 17 Assocs., 324 N.J. Super. 322, 330, 735 A.2d 594, 599 (1999).

NCHRP LRD 85 23 direct travel changes over to stop and start tra c. Predictably, this occurs because of oddly placed access points mandated by commercial development. Wisconsin’s permitting statute allows for a permit to be conditioned on the preservation of highways and the safety of the public.205 If the ability to regulate these ac- cess points is impaired by cost or by lack of regulatory power, the construction that was intended to be a through road ceases to serve that purpose and becomes less safe and less functional. Courts take into consideration changes in conditions which can lead to dierent decisions when regulating a driveway at ex- actly the same location. In LMMIA, LLC v. State,206 two adjacent parcels abutted a state highway to the east and a U.S. highway to the south. When the present owner of the parcels purchased the parcels, one carried with it an access permit to the state high- way issued by the Wisconsin Department of Transportation (WisDOT) to the developer’s predecessor in interest. e previ- ous owner obtained the permit with the plan of constructing and operating a cheese factory. e permit estimated usage up to 100 vehicles per day. Aer that entrance was constructed ac- cording to plans, the property sold. e present owner’s planned development included a gas station and a hotel. e new owner led a new permit application, which sought an access drive- way 704 feet north of the U.S. highway and a median crossover with turning lanes. is was in keeping with the previous per- mit design, but the estimated usage was up to 500 vehicles per day. e application was denied, and the new owner appealed the decision, arguing that WisDOT was required to grant appel- lant’s application because the department was bound by the pre- viously issued driveway permit. Aer exhausting administrative review of the denial, the owner sought judicial review. e ap- pellate court pointed out the denial of the current application was before the court, not the previous owner’s approved permit. Further, because WisDOT has the power to revoke or change permit conditions, the permit must be reviewed considering the present circumstances, not those existing at the time a previous permit was approved. In ruling that WisDOT was not bound by prior permits, the court noted the proposed use and daily tra c level changed substantially and WisDOT was anticipating that a signal would be needed in the future. e placement of the requested entrance would not insure proper timing between signals. Revocation of driveway permits creates issues similar to those raised when a permit is denied. Is there su cient due process? Has a property right been taken by this action, or has the property simply been regulated? A survey of transportation agency attorneys posed both questions about compensation, if a permit was denied or revoked, is the denial or revocation of a permit compensable? e results are summarized in Table 2. In theory, there can be a de facto revocation of a driveway permit but proving the claim can be a di cult burden, as a property owner in Harper Invs. v. DOT,207 discovered. A high- way improvement project allowed construction of a roadway 205 Wis. Stat. Ann. § 86.07 (2021). 206 295 Wis. 2d 490, 719 N.W.2d 799 (2006). 207 251 Ga. App. 521, 554 S.E.2d 621 (2001). lowered or lost rents resulting in less or lost business were not to be considered an element of damage. e appellate court found no error with the trial court noting that the owner’s testi- mony supported the notion that the elimination of the driveway would diminish the market value of the property. e court dis- tinguished the facts of this case from City of Winston-Salem v. Robertson,202 where the issue was if the closure of a property’s driveway was a compensable taking or a legitimate exercise of the police power that did not require compensation. Since the issue came before the court packaged as a condemnation case, it was appropriate to try it solely on the issue of just compensation. A comparison of Fowler to Marlton, where driveways were closed prior to a scheduled road improvement project, provides a strategy for other jurisdictions to employ, especially when the jurisdiction has strong support for the authority to close drive- ways by revoking permits prior to initiating a reconstruction project. In Rivet v. DOT & Dev.,203 a Louisiana a development com- pany led an inverse condemnation action against the Louisiana Department of Transportation and Development (DOTD). In 1975, a predecessor in interest had purchased 110 acres for $400,000 with the intention of developing a residential sub- division. e original purchaser led a subdivision plat which divided approximately 80 acres into lots for housing construc- tion and dedicated approximately 30 acres of the land for streets and greenways. Later that year, part of the property sold to the current owner/developer. e remainder (approximately 80 acres) was divided into tracts for housing construction. In 1985, aer a series of delays, the current developer applied for an access permit. e application was denied because of a planned interstate interchange along the same road where the permit was requested. Before ling suit, the developer purchased addi- tional residential lots in the development. e trial court found a taking had occurred and awarded $3,099,624 to the developer in compensation plus interest, attorney fees, and expert fees. e appellate court a rmed the taking but remanded the cases for an adjustment in compensation. DOTD requested the case be heard by the Louisiana Supreme Court, but the request was denied. While there was additional trial and appellate orders on the issue of compensation, the Louisiana Supreme Court’s ac- ceptance of the lower courts’ determination that a taking had occurred stood. ese actions serve to prevent the functional obsolescence of roads, thereby preserving the public’s investment the highway system.204 As property values increase, the cost of government infrastructure increases and the ability to sustain highways for their intended purpose becomes more signicant and more di cult. e function of a road changes over time depending on tra c volume, tra c speed, or the number of conicting ac- cess points. Oen, a new road intended to improve connectivity from one town to another—making travel safer and more e - cient—gives way to commercial development so that over time, 202 81 N.C. App. 673, 344 S.E. 2d 838 (1986). 203 680 So.2d 1154 (La. 1996). 204 See Stokes, supra note 2.

24 NCHRP LRD 85 When the owner began doing so, the road was damaged. e county revoked the permit and sued for damages to the road. e permit holder counter claimed for breach of contract. e appellate court noted: [P]ermits may be revoked by the issuing party. . . . Indeed, the power to revoke is inherent in the license or permit itself. . . . Moreover, that power cannot be hindered or limited through contract. Newsom v. City of Galveston, 76 Tex. 559, 13 S.W. 368, 369 (1890) (stating that the “police power possessed by such corporations cannot be fettered by contracts, but must be le free to be exercised at all times, whether in conferring or withdrawing privileges once conferred”). . . . None- theless, in revoking a license or permit, the entity may not act capri- ciously, arbitrarily, or unreasonably. . . . In other words, it must have a reasonable basis for its decision. And, protecting the public welfare or good is such a basis.209 Two Wisconsin appellate courts provide good guidance on what engineering factors courts will consider when determining if safety concerns support permit revocation. In Slater v. State DOT,210 an owner of a commercial prop- erty serving an architectural o ce had direct access to a main highway, U.S. 18. ere was a second access via an easement 209 Id. at *6 (citations omitted). 210 371 Wis. 2d 565, 884 N.W.2d 535 (2016). median that prevented drivers from turning at an intersec- tion known for signicant tra c back up. is median also prevented northbound travelers from turning into the subject property, which had a permitted driveway. e state did not go through the administrative process to revoke the permit, so the owner sued the GDOT in an attempt to force them to remove the median until a permit revocation hearing was provided. In denying the claim, the appellate court noted GDOT had altered the roadway, not the property’s connection to it. e driveway was not altered in any way. In addition, the language of the per- mit reserved GDOT’s rights to make changes to the roadway, and it was not intended to surrender rights to a property owner. erefore, this was not a de facto revocation of a permit and a hearing was not required. e majority of access management programs allow for per- mit revocation. In some instances, the authority has been codi- ed in statute, in some instances case law has spelled out the authority. Brazoria Cty. v. Basin Credit Consultants,208 provides a summary of the prevailing case law related to permit revoca- tion. is decision involved a permit which allowed the permit holder to operate heavily loaded vehicles upon the roadway. 208 No. 07-01-0304-CV, 2002 Tex. App. LEXIS 6748 (Sept. 18, 2002). Table 2: Survey of DOT Attorneys on Compensation for Denial and Revocation of an Access Permit State Is compensation due if permit is denied? Is compensation due if permit is revoked? Alaska No No Connecticut No If the department le no other access to the property, it would be compensable as a taking. Georgia No Ga. Code Ann. § 32-6-133 provides that the department may regulate commercial driveways by permit, but it cannot do so in a way that will “deprive the landowner of reasonable access to the public road on the state highway system.” Ga. Code Ann. § 32-6-133(a) (2021) Kansas Denial would be compensable as a taking if there was no other reasonable access. Yes Louisiana Only in limited circumstances. No Mississippi Only in limited circumstances. Missouri No No Montana Only when there is damage to business operations and the case must be bought under inverse condemnation. Only when there is damage to business operations and the case must be bought under inverse condemnation. Oklahoma If denial of a permit results in a taking of the property via inverse condemnation, which is a strict and high standard. It depends on the factual circumstances and if the denied permit access was the only reasonable access. Virginia No No West Virginia Only in limited circumstances. Payment for permit revocation per se, however, the conversion of a non-controlled access right-of-way being accessed via permit to a controlled access right- of-way necessarily entails reduction in access and that is compensable in certain circumstances.

NCHRP LRD 85 25 1. Liability Protection: Indemnification Agreements Indemnication clauses can be a source of protection from inverse condemnation claims. In Novak v. Cty. of Warren,212 a couple sought approval from the city and county planning boards for a 69-acre subdivision. Prior to granting subdivision approval, an issue arose regarding driveway access. e de- sired location for one lot’s driveway required access through a neighboring lot. e board suggested a dierent access point, but that was rejected by the owners. Instead, the board required the owners to obtain an easement from the neighboring lot to insure unfettered access. Also, out of concern for potential future litigation, the board required the owners to execute an indemnity agreement before it would approve the subdivision plan. e agreement laid out the facts about the need to traverse a neighboring lot for access and that the city agreed to grant approval of said access, provided the owners would be “willing to defend, indemnify, and hold harmless [the city] from any and all claims of whatever nature arising out of the approval of the proposed access over the said [neighboring lot].”213 Specically, the owners did agree to “save, indemnify and hold [defendant] harmless from any claim for action whether in law or equity for loss, liability, expense or damage made by any party against [defendant], its employees and agents, arising out of or from driveway access over and across . . . Lot 1000 to [CR] 609. . . .”214 At the time of this approval in 1983, driveway regulations required a minimum site distance of 300 feet for a driveway opening permit. ere were also design specications for grade, storm water runo, and vehicle turn around. Site distance re- quirements changed in 1999 and again in 2007. Storm water management standards changed in 2004, and septic design stan- dards changed in 2012. According to the court, [t]he subsequent standards reected new safety data and “recommendations for protection of the public health, safety and welfare.”215 In 2004 the owners submitted a request for a driveway access permit that did not comply with the driveway as was originally approved in 1983, nor did it comply with the revised standards. To be in compliance with current requirements, the owners would need to purchase an easement on the neighboring lot. e owners took no action for six years. In 2013 the owners resubmitted the application for driveway access. When it was denied, the owners led an action for inverse condemnation due to denial of the per- mit. e trial court found that the 1983 indemnity agreement ad- dressed the owners’ exact situation from 2013 and dismissed the case because the agreement relieved the board from liability. e case was appealed, and the owners argued there was no duty to acquire an easement from the neighboring lot. e appellate court found the situation described in the indemni- cation agreement (the need to use the neighboring lot to ob- tain acceptable access) was spelled out in the agreement. e 212 No. A-1531-16T3, 2018 N.J. Super. Unpub. LEXIS 565, (Mar. 13, 2018). 213 Id. at *3. 214 Id. 215 Id. at *4. over another property leading to a road to the west. U.S. 18 was slated for an improvement project because a safety assess- ment had shown U.S. 18 had a high crash rate attributable to the number of access points, high travel speeds, and the num- ber of lanes. Revoking the access permit at this location, which was located in an intersection’s functional area, served the Wisconsin Department of Transportation’s access manage- ment principles including limiting direct access to the highway, preserving the functional area of the intersection, limiting the number of conict points, separating conict points to create a safer intersection, and removing turning vehicles from the through lane. e court then reviewed facts in order to deter- mine if the property retained reasonable access if the permit was revoked. at review included the type of property (a ‘destina- tion location’ rather than an ‘drive by’ retail location), the type of business (o ce building and parking lot), and the remaining access (through the parking lots of other businesses in addition to an ingress/egress easement over another business). e court determined this information provided substantial evidence of both a legitimate revocation decision and remaining reasonable access. erefore, the court upheld the administrative decision. J&E Invs. LLC v. Div. of Hearings & Appeals,211 involved property with a multi-tenant commercial building, two parking lots, and four driveways. e Wisconsin Department of Trans- portation notied the owner of its intent to revoke one of the driveways to the larger parking lot, specically the driveway nearest the front of the building. e alternative access was a driveway near the rear of the building accessible via an alley- way. An administrative hearing was held, the adopting ruling was that there was reasonable alternative access. In making that determination, the hearing o cer considered that an entrance/ exit at the rear of a property was not atypical for properties that have frontage on high tra c volume roadways, nor would entering from an alleyway be unexpected, although it would re- quire minor signage. ere was no signicant increase in time and distance for motorists. Considerable attention was given by the hearing o cer to limitations of the narrowness of the alley- way, although it would accommodate the additional tra c. is was appealed to a trial court, which a rmed the decision. e appellate court upheld the decision revoking the permit because the nding of the administrative hearing o ce was supported by credible and substantial evidence. When denying or revoking an access permit it is important to document all the considerations behind the decision, includ- ing all the safety factors that are balanced against the impact to the property’s value and/or function. e public investment in the roadway and the need to keep it functional for its intended purpose(s) can be used as an argument to oset any loss in value to the owner. A critical and detailed look at the remaining access will also assist any authority reviewing such a decision. 211 349 Wis. 2d 497, 835 N.W.2d 271 (2013).

26 NCHRP LRD 85 parties have had no opportunity to rebut.”221 e court ordered NJDOT to provide a hearing at which all evidence could be con- tested, and all witnesses could be cross-examined. e new act provides for notice and an evidentiary hearing as is required.222 e procedures set forth in New Jersey’s Comprehensive Access Management Act,223 passed aer High Horizons was decided, have been determined to have su cient due process for owners to redress grievances. Property owners are limited to that process. In Marlton Plaza, supra, NJDOT argued the changes in access agreed to pursuant to the statute were separate from a subsequent condemnation action. erefore, redress for a driveway closure was limited to the procedures set forth in the Access Management Act. In other words, “regulation of access is an administrative process unrelated to condemnation, and that as an exercise of the State’s police power, access regulation is non-compensable as long as any value remains in the aected property.”224 e court agreed. In making its decision, the court noted: “Aer the DOT Commissioner determines that alternate access is available, a property owner’s access permit may be modied or revoked upon written notice and hearing.”225 is is consistent with, J&E Invs. LLC v. Div. of Hearings & Appeals,226 a Wisconsin case in which a property owner whose permit was revoked argued an entitlement to a jury trial. e appellate court noted the revocation was an administrative deci- sion and was subject to administrative review. ere was no en- titlement to a jury trial. Once nal, administrative hearing decisions are reviewable by the courts. In N. Point Dev. Grp. v. S.C. DOT,227 the SDOT, (SCDOT) denied a request for an access point along a con- trolled access road. e property owner making the request sued. SCDOT took the position that the statutory administra- tive hearing provision applied only to encroachment permits but not to access on a controlled access highway. e trial court agreed and dismissed the action. e appellate court reversed, holding that “while the courts may not substitute judicial discre- tion for administrative discretion, capricious or arbitrary exer- cise of administrative discretion is subject to judicial review.”228 221 Id. at 53, 575 A.2d at 1367. See also, In re Revocation of Access of Block No. 613, Lots No. 4 & 5, Tp. of Toms River, Ocean Cty., 224 N.J. 53, 55, 128 A.3d 1086, 1087 (2016). 222 High Horizons, 120 N.J. at 42, 575 A.2d at 1361. 223 N. J. Admin. Code § 16:47-1.1–App. H-7 (2021). 224 Com’r of Transp. v. Marlton Plaza Assocs., 426 N.J. Super. 337, 348, 44 A.3d 626, 632 (2012). 225 Id. (citing N.J. Admin. Code § 27:7-94(a)). But see Magliochetti v. State, 276 N.J. Super. 361, 647 A.2d 1386 (1994); see also Triano v. Div. of State Lottery, 306 N.J. Super. 114, 703 A.2d 333 (1997) which was not appealed for further judicial consideration. 226 349 Wis. 2d 497, 835 N.W.2d 271 (2013). 227 397 S.C. 440, 725 S.E.2d 128 (2012). 228 Id., at 446-47, 725 S.E.2d at 132. Arbitrary is dened as “1. Depending on individual discretion; of relating to, or involving a deter- mination made without consideration of or regard for facts, circum- stances, xed rules, or procedures. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact. Black’s Law Dictionary (11th ed. 2019). agreement was enforceable against the owners in the inverse condemnation suit. Further, because the owners had two other options for an approvable driveway location, there had been no taking as dened by state law. In addition, the cause of action for inverse condemnation arose when the 2004 application was never approved. e statute of limitations had run. C. Liability Related to Due Process Claims Within Access Permit Programs When considering what type of liability issues can be raised in the context of driveway permitting programs, liability based on a violation of the constitutional right of due process cannot be overlooked. is type of liability can occur even if there are no monetary damages. It can be an action independent of claims demanding compensation for negligence or takings. A due pro- cess claim exists independently from claims regarding property rights, and recoverable damages are not based on the value of the property, but rather can include “commercial expectations, costs incurred in seeking to obtain the permits, and punitive damages.”216 Due process claims will come into play when there is a denial, modication, or revocation of a driveway permit. Due process requires “the opportunity to be heard at a mean- ingful time and in a meaningful manner.”217 Due process claims can fall into two categories: procedural and substantive. “Proce- dural due process requires ‘the government to follow appropri- ate procedures when its agents decide to deprive any person of life, liberty, or property. . . .’”218 It requires notice and an oppor- tunity for a hearing prior to depriving a person of property rights.219 Substantive due process requires that governmental ac- tion be rationally related to a legitimate governmental interest. In High Horizons Dev. Co. v. State,220 a case that was led prior to the enactment of New Jersey’s Access Act, the New Jersey Supreme Court gave direction as to what process to follow. A property owner appealed a denial of an access permit to NJDOT’s Deputy State Highway Engineer. Witnesses were not sworn but allowed to testify. Later, when the application was again denied, the owner discovered the decision was based in part on documents the owner was not privy to. e property owner led suit arguing that he was entitled to an evidentiary hearing. e New Jersey Supreme Court upheld the appellate court’s decision that an evidentiary hearing was required, and that NJDOT had violated the requirements of administrative due process by failing to disclose all the documents involved in making the decision. “One of the core values of judicial review of administrative action is the furtherance of accountability. us, an agency is never free to act on undisclosed evidence that 216 TexCom Gulf Disposal, v. Montgomery Cty., No. H-13-2789, 2014 U.S. Dist. LEXIS 87439, at *15 (S.D. Tex. June 27, 2014) (citations omitted). 217 Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed.2d 18, 33 (1976). 218 TexCom Gulf Disposal, 2014 U.S. Dist. LEXIS 87439, at *22 (cita- tion omitted). 219 Id. 220 120 N.J. 40, 575 A.2d 1360 (1990).

NCHRP LRD 85 27 lack of agency precedent that the case is one of rst impression for the agency and the agency lacks special expertise or experience in determining the question presented.”234 e Wisconsin Department of Transportation acknowl- edged that although it was charged with reviewing permit revocations, hearings for permit revocations were rare.235 For that reason, the court applied the middle level of deference and determined it would uphold the decision if it was not contrary to the clear meaning of the statute. ere are limits on what process is required. In Morris Family v. S.D. DOT,236 the court pointed out that due process is not at issue if the property owner does not have a property right. e property owner led an action alleging the city had taken all ac- cess rights without compensation. Facts revealed that the South Dakota Department of Transportation, had compensated a pre- decessor in interest for property taken and “a right to control access to the right-of-way.”237 is was documented in the nal judgment of the condemnation action. e court found [T]he State’s ownership of control of access eliminated an element of the due process claim. “To establish a procedural due process viola- tion, a plainti must demonstrate that he has a protected property or liberty interest at stake and that he was deprived of that interest without due process of law.”238 A North Carolina court put a limitation on what adminis- trative hearing o cers can require when reviewing the denial of a permit. Denial of a driveway permit is rst appealed to a division engineer and then, if necessary, to the NDOT Drive- way Permit Appeals Committee (Permit Committee). In High Rock Lake Partners v. N.C. DOT,239 a developer submitted an application for a permit, which was denied. Upon review, the division engineer granted the permit but with several specic conditions, which included widening a railroad crossing. is would require obtaining licenses, approvals, and other agree- ments from the railroad on various enhanced safety equipment. e developer appealed this decision to the Permit Committee who upheld the decision with all the conditions. Suit was led to review the administrative decision. e appellate court re- manded the case to the permit committee to allow for adding a new party-owner (the property had been sold) and advised that: [T]he Committee should consider all pertinent evidence, including evidence of what improvements need to be made for a safe crossing. e Committee would then have authority to deny the application, grant the application without conditions, or grant the application subject to whatever conditions Respondent determines necessary, but the conditions cannot be contingent upon approval of any third party. In other words, whatever steps are necessary to complete the process need to be fully investigated and determined during the hearing pro- cess with the Committee.240 234 Id. at 505-06, 835 N.W.2d at 275 (citations omitted). 235 Id. at 507, 835 N.W.2d at 276. 236 2014 S.D. 97, 857 N.W.2d 865 (2014). 237 Id. at ¶.7, 857 N.W.2d at 867. 238 Id. at ¶12, 857 N.W.2d at 870 (citations omitted). 239 204 N.C. App. 55, 693 S.E.2d 361 (2010). 240 Id. at 59, 693 S.E.2d at 365 (2010). e permit denial or revocation decision made by a trans- portation agency must be rationally related to the public interests it is authorized to protect. is is consistent throughout jurisdictions. In addition to having owner objections heard by hearing o cers knowledge- able about access management, “Appellate review of a decision of an administrative agency is ‘limited in scope.’ . . . An appellate court will not set aside an agency’s decision unless shown that it was arbitrary, capricious, or unreasonable.”229 By statute and case law, Wisconsin’s administrative process requires that appellate courts be tasked with reviewing the deci- sion of the agency. “e agency’s ndings of fact will be upheld if they are supported by ‘substantial evidence in the record.’ . . . ‘Substantial evidence’ is relevant evidence that would allow rea- sonable minds to arrive at the same conclusion as the agency. . . . e agency determines the weight of the evidence.”230 In Garris v. Keifer,231 a property owner whose driveway per- mit had been revoked led for a writ of mandamus to compel the Virginia Department of Transportation to issue a driveway permit. e owner had applied for a new permit and the appli- cation was denied. e court’s question in the writ suit turned on whether the decision to deny or revoke a permit was dis- cretionary or ministerial. e court ruled, as a matter of law, the act of approving or not approving the residential driveway permit “is a discretionary one on the part of the Director and not ministerial.”232 In order to void such a discretionary act, a challenger must prove the decision was arbitrary and capricious. In Wisconsin the standard for judicial review is to give defer- ence to the legal conclusions made by the permitting agency. e degree of deference may depend on the lack of precedent and the agency lacks experience with the type of issue before it. e Wisconsin Court of Appeals in J&E Invs. LLC v. Div. of Hearings & Appeals,233 stated, “We generally apply three levels of deference to conclusions of law and statutory interpretation in agency decisions.”. . . “ese three levels take into account the comparative institutional qualications and capabilities of the court and the administrative agency.” e rst level of deference, “great weight” deference, applies when: (1) the leg- islature charged the agency with the duty of administering the statute; (2) the agency’s statutory interpretation is one of long-standing; (3) “the agency employed its specialized knowledge or expertise in forming the interpretation;” and (4) “the agency’s interpretation will provide consistency and uniformity in the application of the statute.” . . . e second level of deference, “due weight,” applies when “the agency has some experience in an area but has not developed the ex- pertise that places it in a better position than the court to make judg- ments regarding the interpretation of the statute.”. . . When due weight deference applies, we sustain an agency’s interpretation “if it is not contrary to the clear meaning of the statute” or unless we determine “that a more reasonable interpretation exists.”. . . e third and lowest level of deference, de novo review, applies “where it is clear from the 229 In re Access of Block # 613, Lots #4 & 5, No. A-4809-11T4, 2014 N.J. Super. LEXIS 316, at *8-9 (Feb. 14, 2014) (citations omitted). 230 Slater v. State DOT, 371 Wis. 2d 565, 884 N.W.2d 535 (2016) (citations omitted). 231 48 Va. Cir. 246, (1999). 232 Id. at 248. 233 349 Wis. 2d 497, 835 N.W.2d 271 (2013).

28 NCHRP LRD 85 Access management programs have components and obliga- tions that may give rise to liabilities while granting, denying, re- voking, or modifying permits. Permit applications are reviewed, constructed driveways are inspected, and the terms of a permit may change. In addition, conditions around a permitted drive- way may change or deteriorate. ese factors are all part of the discussion around public liabilities related to driveway permits. Unlike liability imposed by the intentional or unintentional acquisition of access, either by condemnation or inverse con- demnation, the basis for liability with these issues will arise most frequently from the perspective of negligence. ere may also be costs to the agency for a failure to properly perform permit- ting tasks that are not suits based on theories of negligence. A basic review of law relating to liability for negligent acts and governmental immunity from those actions is necessary to pre- dict when liability will be imposed. Due to the principle of sovereign immunity, historically, states could not be sued. In 1948, Congress passed a waiver of immunity for claims against federal agencies,249 and states fol- lowed suit.250 Waiver of sovereign immunity varies from state to state. Massachusetts and a few other states have waived im- munity for all negligence claims, but then limit the waiver with exceptions and stipulations for which liability is not waived. Alabama has waived immunity for state employees, but not for state agencies. Arkansas and Delaware have statutes that assert a purchase of liability insurance is a waiver of immunity up to the amount of insurance. In Tennessee, if the state agency is liable, the state employee is immune unless the act giving rise to the allegation of negligence was outside the scope of employment, done intentionally, or done for personal gain. Generally speaking, there is a limited waiver of sovereign immunity when negligence is found during the performance of some state functions. Most states allow for a waiver of im- munity for ministerial functions, i.e., functions that require no decision, only adherence to the orders of others, or “when the public o cer’s duty is absolute, certain, and imperative, involv- ing merely execution of a specic act arising from xed and designated facts.”251 If someone is harmed because of a failure of an agency to perform its mandatory functions adequately, the injured person has an avenue of redress through the pro- cess adopted by the statutory waiver of the state’s power. Over 26 states allow for a waiver of immunity for ministerial func- tions.252 is waiver of immunity is not applicable when pro- fessional decision-making is necessary to perform a required job function. In large part, there is no cause of action available for acts or omissions that require professional discretion or use 249 See 28 U.S.C.S. § 2674 (2021) (Liability of the United States). 250 See Jaime Rall, Weather or Not? State Liability and Road Weather Information System, (RWIS) National Conference of State Legislatures, at Appendix B. (Citations Relating to State Sovereign Immunity and Tort Liability for a listing of state statures and constitutional provisions relating to sovereign immunity) (2010), https://www.ncsl.org/documents/ transportation/Weather_or_Not_Full_Report_Rall_04.30.10.pdf. 251 Bolin v. Davis, 283 S.W. 3d 752,758 (Ky. 2008). 252 See Rall, supra note 250. While some states have an administrative process to chal- lenge access permit decisions, others allow any challenge to be heard by the court systems. e advantages and disadvantages of each method should be considered when changes are made to a state’s access management program. 1. Access Permit Management: Liability Based on Negligence As was previously established, a permit is a license, not a con- tract, and the granting of a permit is a governmental function.241 e terms of the permit can be summarily changed, modied, or even revoked. Unlike a contract, the granting authority “can impose restrictions and revoke such a permit in the interest of the public health, morals, safety or welfare.”242 e ability to reg- ulate property and its uses is not new: [I]t is a settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and un- qualied may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this commonwealth, . . . is derived directly or indirectly from the government, and held subject to those general regulations, which are necessary to the common good and general welfare. Rights of prop- erty, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and regulations es- tablished by law, as the legislature, under the governing and control- ling power vested in them by the constitution, may think necessary and expedient.243 Many states are adopting access management programs.244 Access management is dened as “the systematic control of the location, spacing, design, and operation of driveways, median openings, interchanges, and street connections to a roadway.”245 It serves to preserve “substantial public investment in the ground transportation system by preserving the roadway level of service.”246 Access management can reduce tra c accidents and property damage as well as reduce tra c delays. According to a 2011 Urban Mobility report, having fewer driveways and street intersections, using median right turn lanes that serve multiple properties and other tra c control techniques reduced delay by 77 million hours.247 Access management plans allow transporta- tion agencies to make decisions that promote and support a better quality of life, encourage economic development, and create liv- able communities, all within the framework of public safety.248 241 See Trevino & Gonzalez Co. v. R.F. Muller Co., 949 S.W.2d 39, 42 (Tex. App. 1997) discussing building permits. 242 Id. (citation omitted). 243 Commonwealth v. Alger, 61 Mass. 53, 84-85 (1851). 244 See e.g., Stokes, supra note 2 at 588 n 11. 245 Id. at 588. 246 See, 43 Tex. Admin. Code § 11.50 (a) (2021) (Access Management). 247 Stokes, supra note 2 at 588 (citing David Schrank, Tim Lomax, Bill Eiseles, 2011 Urban Mobility Report, B-31, B-33, Texas A&M, Transportation Institute (2012)). 248 See, 43 Tex. Admin. Code § 11.50 (2021) (Access Management).

NCHRP LRD 85 29 2. Tort Liability: Pre-Approval Reviews, Inspections, and Approval of Access Permit Applications Courts, when reviewing actions taken pursuant to a state’s permitting process, require the agency to determine what, if any, impact the proposed permit would have on highway safety be- fore a decision is made. It may involve a review of safety studies and other engineering opinions.260 e details of the informa- tion required of an applicant depends on the complexity, size, use, and transportation impact of the proposed property and driveway. For a residential driveway, some states have an onsite inspection. For larger developments, an application may include a detailed site plan, a tra c impact study, and if authorized, details about any o-site mitigation.261 In order for permits to be approved or denied, there must be a review of the permit ap- plication. is can be a potential point of liability, depending on the jurisdiction. In Louk v. Isuzu Motors,262 in West Virginia a Walmart store was constructed adjacent to a highway. While leaving the park- ing lot, a customer attempted to turn le onto the highway when she was struck and killed by another vehicle. Her family sued the store, the engineering company that designed the access, and the West Virginia Department of Highways (DOH).263 e trial court granted summary judgment in favor of DOH on the basis of governmental immunity and entered a directed verdict in favor of the store and the engineering company. On appeal, the husband contended that the engineering company negli- gently designed an unsafe means of access to and from the store parking lot. He also alleged that the store concurred with the plan and caused the access to be constructed aer the plans were negligently reviewed and approved by DOH. e court held that the directed verdict was improper because a jury could have reasonably concluded that the engineering company and the store failed in their duties to design and propose a safe means of access on the basis of sound preliminary evidence and investi- gation. While the court ultimately sustained the decision of the trial court in dismissing DOH, the court’s conclusions related to its possible role and risk were instructive to DOH: We also conclude that there is evidence here which would justify an instruction on intervening cause. With regard to both Gray Engineer- ing and Wal-Mart, we note that it may be fairly asserted that the role of the DOH in reviewing and approving the permit constituted an in- tervening cause, constituting the sole proximate cause, thereby com- pletely absolving Gray and Walmart. In Puer v. Hub Cigar Store, 140 W. Va. 327, 84 S.E.2d 145 (1954), the Court, quoting Hartley v. Crede, 140 W. Va. 133, 82 S.E.2d 672 (1954), dened an intervening cause as “a negligent act or omission which constitutes a new eective cause and which, operating independently of anything else, is the proxi- 260 See e.g. Comm’r of Transp. v. Camp Leonard-Leonore, No. CV010085354S, 2003 Conn. Super. LEXIS 127 (Jan. 7, 2003). 261 See Kristine Williams, Driveway Regulation Practices: A Synthesis of Highway Practices, NCHRP, Synthesis 304, Transpor- tation Research Board of the National Academies, Washington, D.C (2002), p. 11. 262 198 W. Va. 250, 479 S.E.2d 911 (1996). 263 DOH is an agency of the West Virginia Department of Transportation. of professional judgment, even if done negligently. is type of immunity is referred to as qualied immunity in most jurisdic- tions. In most states, a discretionary act or decision enjoys im- munity from suit, even in instances of negligence, while a min- isterial duty will impose liability if the duty is breached.253 “e discretionary function exception is designed to protect policy- making by the executive and legislative branches of government from judicial ‘second-guessing.’”254 Absent some form of immunity, a party may be sued and can be held responsible under the theory of negligence. Negli- gent acts are basically a deviation from that which a reasonable man, guided by ordinary considerations, would do or refrain from doing. Negligence is failure to use such care a reasonably prudent person would use under similar circumstances and in- volves a breach of the duty each of us has to others to use due care in our conduct in order to prevent an injury to the other.255 In professional elds, “reasonably prudent” equates to the aver- age degree of skill, care, and diligence exercised by members of the same profession. e elements for a claim of negligence are duty, breach of duty, cause in fact, proximate cause, and harm/ damages.256 Transportation agencies have a statutory responsibility to develop and maintain a safe highway system for the traveling public. In O’Quinn v. State, Dep’t of Transp. & Dev.,257 the Court of Appeals of Louisiana described it by stating: It has been repeatedly stated that the Department is not a guarantor of the safety of travelers but, rather, owes a duty to keep the high- ways and its shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the Department is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time.258 Within the context of negligence involving transportation agencies there is a preliminary element of proof that must be established. e claimant must show that the agency actually knows or is constructively aware of the hazardous condition. Constructive notice is dened as the existence of facts that imply actual knowledge, and this denition allows a person to infer actual knowledge on the part of a public entity when the facts demonstrate that the defective condition existed for such a period of time that the defect should have been discovered and repaired.259 253 See e.g., Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001). 254 Gomez v. United States Dep’t of Agric., No. 12-964 LFG/KBM, 2013 U.S. Dist. LEXIS 208261, at *11 (D.N.M. Aug. 8, 2013) (citation omitted). 255 See e.g., Negligence, Black’s Law Dictionary (11th ed. 2019). 256 See David G. Owen, e Five Elements of Negligence, 35 Hofstra L. Rev. 1671 (2007); Restatement (ird) of Torts: Liability for Physical and Emotional Harm, American Law Institute, (2010/2012). 257 408 So.2d 34 (La. Ct. App. 1981). 258 Id. at 36. 259 Browne v. Dep’t of Transp. & Dev., No. 2015-0667, 2016 La. App. Unpub. LEXIS *19 (Feb. 4, 2016) (citation omitted).

30 NCHRP LRD 85 court denied the request for the writ because the act of granting or revoking the permit was not ministerial. ere are similar conclusions in other jurisdictions. Cases are replete with language indicating professional judgment is key to determining if the permit design is a safe one. Jurisdic- tions of such cases include South Dakota,270 New Hampshire,271 West Virginia,272 and Pennsylvania273 to name only a few. e very nature of review of a driveway permit to determine if it should be granted, revoked, or modied is using the discretion of professional judgment. In cases alleging compensation is due for permit denial or revocation under the theory that a taking has occurred, courts oen remand the case to the trial court for a determination on whether the state o cial abused their dis- cretion in denying or revoking a permit. e language in these cases can be relied upon in suits based on negligence, to show the act complained of is not ministerial, but discretionary, and worthy of protection under the doctrine of qualied immunity. Sewell v. Barge, Waggoner, Sumner & Cannon, Inc.274 was a case brought against an engineering rm in Alabama alleging negligent design of an intersection. Although this case did not deal with a driveway, it is relevant to any allegation of negligent design, including that of a driveway. e negligence complained of was based on an alleged violation of the Alabama Manual on Uniform Tra c Control Devices (AMUTCD).275 e plainti argued that a violation of language in the manual using the word “shall” should be viewed as negligence per se.276 e engineering rm argued that although the AMUTCD provides standards for design, it is not a substitute for engineering judgment. e crux of the design aw was that the design (phasing and tim- ing of the lights and the lack of a light under the overpass to warn westbound drivers the light had changed) allowed for the possibility of two vehicles to be legally in the intersection at the same time. is situation caused an accident. Motions for sum- mary judgment were made based on these arguments. ere was no previous Alabama case that had addressed how to apply 270 See Morris Family v. S.D. DOT, 2014 S.D. 97, 857 N.W.2d 865 (2014). 271 See In re Appeal of N.H. DOT, 152 N.H. 565, 883 A.2d 272 (2005). 272 See Nat’l Lead Co. v. Kanawha Block, 288 F. Supp. 357, (S.D. W. Va. 1968). 273 See Wolf v. Dep’t of Highways, 422 Pa. 34, 220 A.2d 868 (1966). 274 No. 5:07-cv-00447-HGD, 2009 U.S. Dist. LEXIS 85233 (N.D. Ala. Apr. 28, 2009). 275 ALDOT expressly adopted the FHWA Manual on Uniform Tra c Control Devices for Streets and Highways (MUTCD). See id. at *11 (citing Ala. Admin. Code § 450-5-1-.01). 276 Id. at *33. Negligence per se is dened as “Negligence established as a matter of law, so that breach of the duty is not a jury question. Neg- ligence per se usually arises from a statutory violation. Blacks Law Dic- tionary (11th ed. 2019). See also, Commonwealth v. Babbitt, 172 S.W.3d 786 (Ky. 2005) wherein the Supreme Court of Kentucky held the failure to follow design guidelines, such as those recommended by AASHTO or the Warrants & Guidelines, does NOT constitute the equivalent of negligence per se. mate cause of an injury.” Puer, 140 W. Va. at 341, 84 S.E.2d at 155. We do not nd that the evidence is so strong or persuasive from any side that such an issue can be decided as a matter of law. As with the other issues we have discussed, we believe these issues are for a jury, under proper instruction, and not for the court. Because we recog- nize that reasonable people could draw diering inferences from the evidence, particularly the evidence regarding the level of involvement of the DOH in the planning and design of the Walmart access and the “team” approach to planning and designing the access to which Gray Engineering’s representative testied, we conclude that, on re- trial, the jury is entitled to consider whether the DOH’s role was truly independent and separate or whether the development of the access plan and design was truly a team eort in which all the defendants remaining in this action had a simultaneous and contributing role.264 Sadler v. DOT,265 a Georgia case involving a permit for a tra c signal, addresses the inuence a statute can have on liability for a permitting program. In this case, the appellate court was re- viewing a trial court’s dismissal of four complaints, all related to design standards and tra c control devices at an intersection. e statute in question also included inspections and the issu- ance, denial, revocation, or suspension of any permit or license. e appellate court sustained the lower court’s decision dis- missing the claims because the plaintis failed to show a waiver of sovereign immunity. e court noted that Georgia has not waived sovereign immunity for any acts based on its inspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the state to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety; or for any actions in carrying out its “licensing powers or functions, in- cluding, but not limited to, the issuance, denial, suspension, or revocation of or the failure or refusal to issue, deny, suspend, or revoke any permit, license, certicate, approval, order, or similar authorization.”266 erefore, the agency is shielded from liability for negligence in the permitting process. In Garris v. Keifer,267 a Virginia property owner had been granted a driveway permit only to be informed three days later that the permit was revoked. He led for a writ of mandamus, which is an extraordinary remedy employed to compel a public o cial to perform a purely administerial duty imposed by law . . . A ministerial act is “one which a person performs in a given state of facts and pre- scribed manner in obedience to the mandate of legal authority with- out regard, or the exercise of, his own judgment upon the propriety of the act being done.”268 e court found the language of the director’s authorizing ordi- nance to allow discretion over whether to issue a permit. It read, “the Director shall issue the permit requested by Petitioner for a residential driveway if the same meets with his approval.”269 e 264 Id., at 263, 479 S.E.2d at 924. 265 311 Ga. App. 601, 716 S.E.2d 639 (2011). 266 Id. at 606, 716 S.E.2d at 643 (citing Georgia Code Ann. § 50-21- 24 (9) (Exceptions to State Liability)). 267 48 Va. Cir. 246 (Cir. Ct. 1999). 268 Id. at 247. 269 Id.

NCHRP LRD 85 31 taken was one using discretion based on professional judgment. Most states include an inspection of a permitted driveway aer construction to ensure it was built according to plans. A ≈survey of state permitting sta reects that practice. When asked if there was a provision for as-built inspections, 87.76% of the responders to this project stated yes with only 17.24% re- sponding no.281 In Delgobbo v. Town of Watertown,282 the court found that the act of inspecting for a driveway permit was not a ministerial duty, but one that required the exercise of professional judg- ment. In this instance, homeowners lived in a home that was on a slope, where the driveway sloped upward from the road. Sometime aer the home was built, zoning regulations were amended to limit the slope of a driveway to 15%. ere were plans underway to widen the road that abutted the property, and this would impact slope and length of the driveway. e town’s public works department attempted to come to an agree- ment with the homeowners on those issues, but no agreement could be reached. Prior to construction, the owners sued, at- tempting to force the department to design the road to comply with the local zoning requirement, i.e., to require the inspector to make sure the driveway complied with the new 15% slope standard. e owners acknowledged that when a public o cer is acting within their authority and honestly exercising pro- fessional judgment, there is no right to review that action or compel a dierent result. e court determined the decision of the inspector was not ministerial, but a matter of professional judgment. Further, the court noted that “[a] lawfully established nonconforming use is a vested right and is entitled to constitu- tional protection,”283 therefore it would not be considered a non- conforming driveway since it was legal at the time it was built, and the change caused by road construction would not make it illegal or nonconforming. Hurier v. Ohio DOT,284 presents an additional perspective on driveway permit inspections and standards. A property owner, while building a home in 1973, submitted a permit application with the ODOT for installation of the driveway. e ndings of the trial court were: (1) the permit application required only a general description of the work to be performed, as well as a plan for the proposed construction; (2) the plan was required to contain the location and dimensions of the proposed driveway bridge; (3) it was clear that the focus of the application permit was not whether decorative structures could be attached to the driveway bridge; rather, the permit application in- cluded numerous details and restrictions concerning drainage and the restoration of any roadside landscaping which would be disturbed by the construction; and (4) the permit indicated that any approved construction could be done only upon inspection, and appellants did not demonstrate that any part of the construction was objected to by the inspector.285 281 See Appendix B, Permitting Sta Final Survey Results. 282 Delgobbo v. Town of Watertown, No. CV094019976, 2012 Conn. Super LEXIS 351 (Feb. 6, 2012), a’d, 143 Conn. App. 628, 69 A.3d 1000 (2013). 283 Id. at 16. 284 2002-Ohio-4499 (Ct. App. 2002). 285 Id. at ¶ 18. the AMUTCD in an action for negligence. In looking to other jurisdictions the court found: Courts in the few states that have addressed the issue have held that the MUTCD has the “force of law,” that MUTCD “standards” estab- lish a national standard of care, and that violation of a MUTCD stan- dard may be considered at least as evidence of negligence. See Jones v. Panola County, 725 So.2d 774 (Miss. 1998) (“the relevant MUTCD provisions may properly be considered by a jury as evidence of neg- ligence, albeit not as conclusive evidence thereof”); Brockie v. Omo Constr., 255 Mont. 495, 844 P.2d 61 (Mont. 1992) (“violation of the MUTCD is not negligence per se but evidence of negligence”). A few states have held that a violation of the mandatory (“shall”) standard of the MUTCD is negligence per se. See Gregory v. Ohio Dep’t of Transp., 107 Ohio App. 3d 30, 667 N.E.2d 1009 (1995) (“a deviation from the mandatory standards of the manual renders ODOT negligent per se and liable in damages if proximate causation is established”); Es- terbrook v. State, 124 Idaho 680, 863 P.2d 349 (Idaho 1993); see also Lawton v. City of Pocatello, 126 Idaho 454, 886 P.2d 330, 338 (Idaho 1994).277 e court noted that other courts have held that compliance with the provisions of the MUTCD can be used as evidence of the absence of fault, while others have held that compliance does not necessarily establish due care because the MUTCD establishes only minimum standards.278 e court found that the standards set forth in the AMUTCD are admissible. However, the manual states that its provisions are only a guide and are not to be used as a sub- stitute for professional judgment. e manual also requires the adherence to “current design standards,” which were un- dened.279 In this case, the motion for summary judgment based on negligence per se was denied. Because it was not a case against a state agency where the issue of qualied immu- nity would be addressed, the manual could be used as evidence of negligence. However, the court took judicial notice that the manual is advisory and not mandatory and it could be used to argue that design decisions are discretionary, even as to those that are inconsistent with the AMUTCD. It further could be argued that design decisions are a result of professional judgment and as such would bar a negligence action against a transportation agency that applies qualied immunity.280 If designs deviate from the recommendation contained in the MUTCD or similar manuals, documentation for the reason the recommended standard was not used would be proof that the act 277 Sewell, 2009 U.S. Dist. LEXIS 85233, at *33-34. 278 Id. (citing Jacques v. Transp. and Development, 905 So.2d 294 (La.Ct.App. 1st Cir. 2004), and Schmidt v. Washington Contractors Group, 1998 MT 194, 290 Mont. 276, 964 P.2d 34 (1998)). 279 Id. at *43. 280 See Esterbrook v. State, 124 Idaho 680, 863 P.2d 349 (1993) inter- preting of the role of the MUTCD consistently with this decision. How- ever, in Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d 966 (Alaska 2005) the Alaska Supreme Court held that the Alaska Department of Trans- portation and Public Facilities could be liable for not posting warning signs at a pedestrian crossing because those signs specically were man- dated by safety standards set out in Alaska Stat. § 19.10.040 (2005) (Uni- form system of marking and posting). is statute required the depart- ment to correlate its system with and to conform as far as possible “to the recommendations of the Manual on Tra c Control Devices as adopted by the American Association of State Highway O cials.”

32 NCHRP LRD 85 tant.287 It also indicates the important role of crash history when defending negligence claims. If transportation agencies allow sta to be involved in design decisions during the permit application review process, they open themselves up to potential suit. e opinion that some standards set forth in the MUTCD or similar treatises are min- isterial can be troubling. However, in many jurisdictions, deter- minations regarding permit approval or denial are considered discretionary and therefore entitled to qualied sovereign im- munity protection. Crash data at permitted locations can imply notice to a transportation agency of a potential problem that must be addressed. 3. Permit Fees e process of reviewing permit applications and ensuring permitted driveways are built according to plans demands time and attention from transportation professionals. It is reason- able to collect fees to cover these costs of reviewing driveway permit applications, so that the public is not asked to pay for the work of increasing property value for a particular owner. e Massachusetts Department of Transportation (MassDOT) charges fees to cover costs typically incurred in processing, reviewing, and accommodating driveway permit requests. It may also charge a fee based on the actual cost of maintenance and equipment necessary to review the application or the cost to provide oversight and site inspection during post-issue and sign-o process as well as actual costs of the technical and engi- neering review of detailed drawings and specications.288 4. Court Mandates Courts have great reluctance to substitute judicial judgment for professional judgment. is concept particularly applies to the engineering profession “[b]ecause this Court is ill-equipped to evaluate the qualications of those in the engineering eld, we will not substitute our judgment of Petitioner’s qualications for that of the Board’s.289 5. Changes in Conditions: Duty to Update In DOT v. Cox,290 a Georgia case, an accident occurred aer a commercial driveway had been constructed and was in full use. A driver and passenger, who were injured by a car driven by a person who failed to yield when turning le into a commercial 287 Other courts have consistently viewed AASHTO standards as relevant, but deviations of those standards are not proof of negligence per se. See Roberts v. City of N.Y., 2018 NY Misc. LEXIS 5045 (2018); Morgan v. Peninsula Corridor Joint Powers Bd., No. 13-cv-1041 JSC, 2014 U.S. Dist. LEXIS 7324 (N.D. Cal. Jan. 21, 2014); Woodhead v. City of Phx., No. 1 CA-CV 16-0274, 2017 Ariz. App. Unpub. LEXIS 1431 (Oct. 3, 2017); Lindsay v. Kan. City S. Ry. Co., 798 So.2d 976 (2000); and City of Union Gap v. Printing Press Props., LLC, 2 Wash. App. 2d 201, 409 P.3d 239 (2018). 288 700 Mass. Code Regs. § 13.06 (2021) (Permit Fees). 289 Curran v. Commonwealth, Bureau of Prof ’l & Occupational Aairs, 92 Pa. Commw. 37, 42, 498 A.2d 51, 53-54 (1985). 290 246 Ga. App. 221, 540 S.E.2d 218 (2000). However, when the driveway was built it included a drainage pipe and decorative brick wall on each side of the driveway. e brick wall enclosed the pipe and extended above the level of the driveway so as to form a guardrail for both sides of the drive- way as it passed over the pipe and drainage culvert. In 1993, a 17-year-old driver was traveling to his house one mile away from the driveway. e driver’s mother and sister were in the car, and both had fallen asleep, and the son was ghting sleep. He even- tually succumbed and the vehicle dried from the lane, exited the roadway, struck a mailbox, and proceeded down the drain- age culvert striking the pipe and the brick wall. e mother was killed, and the daughter was badly injured. e driver’s father brought suit on behalf of himself, the deceased’s estate, and his six minor children. e theory of the suit was based on public nuisance, which could be shown by proving a violation of a spe- cic legal requirement established for the protection of others. e plaintis also sued under a negligence theory. Among other factual allegations, plaintis alleged the in- spector should have objected to the walls at the time of the inspection, but there was no documentation that an inspec- tion had occurred. e court determined that the permit was a valid permit even though it did not include plans to construct the decorative brick walls. e permit application did not re- quest such information. ere was testimony that there was an inspection made because it was the custom and practice of ODOT to inspect the completed structure aer issuing the per- mit. e fact that ODOT did not require the property owners to remove the walls made a compelling case that the inspector had approved the construction. e plaintis argued that leaving a brick wall on a right- of-way was a violation of a legal requirement that individuals occupying the roadway must remove any object or structure when, in the opinion of ODOT, the object or structure consti- tutes an obstruction or may interfere with use by the traveling public. e appellate court dispensed with this argument by noting the removal requirement is discretionary and the en- gineer for ODOT did not foresee an obstruction that would constitute a threat to the traveling public, noting there had been only one accident at that location in the previous twenty years and that had involved an inebriated motorcyclist. Further, the engineer testied the walls were not in a vulnerable location as at their closet point, they were 14 feet away from the edge of the road. Guidelines involving clear zones were not in eect at the time the driveway was constructed, and all other relevant guide- lines such as those enumerated in AASHTO Roadside Design Guides were not published at the time of construction. e ap- pellate court noted that ODOT was under no duty to upgrade highways to current design standards when performing mainte- nance. Even if the guidelines had been written at the time of the accident, ODOT is not required to follow them.286 In addition to the nding that AASHTO standards are only guidelines, this case reects that documentation is impor- 286 See id. at ¶24.

NCHRP LRD 85 33 In O’Quinn v. State, Dep’t of Transp. & Dev.,296 the property owner’s driveway connected to the shoulder of the highway. e property owner had complained to the Louisiana DOTD that the shoulder of the highway was much higher than her drive- way. In conrming a trial court’s nding of negligence against DOTD, the court presented a good review of how to apply the elements of negligence to a set of facts: In the instant case, the plainti ’s driveway was connected to the shoulder of Highway 71. is driveway was the only means of ingress and egress to the plainti ’s house. It was foreseeable that Mrs. O’Quinn and others would use this driveway and shoulder to enter and leave the highway and also that the motorists using these would be placed in danger by the existence of an unreasonably dangerous condition at this location. erefore, the Department owed a duty to such motor- ists, including the plainti, to maintain the highway and shoulder in the area in a manner which would allow for the safe gradual move- ment of a vehicle from the shoulder to the highway. e undisputed testimony of the plainti established that the paved highway was six to eight inches higher than the shoulder and that the plainti had previously warned the defendant’s employees of this con- dition. Considering this evidence, we nd no manifest or clear error in the trial court’s conclusions that the elevational dierence between the paved highway and the shoulder was unreasonably dangerous and that the Department had at the very least constructive notice of the dangerous condition of the shoulder and the highway. Employing the “but-for” test to determine cause in fact, we can only conclude that the plainti ’s accident would not have occurred had the shoulder been substantially even with the paved portion of the highway.297 Klink v. State,298 involved a condition that could not be per- manently remediated quickly. In this instance there was a duty to properly warn of the dangerous condition. While investigat- ing a fatal accident on a bypass road in Hawaii, an investigator noticed water traveling across the roadway and run o debris that indicated more water had been owing across the road- way previously. At the time he did not notice any water ow- ing from a driveway that fronted the highway at the loca- tion of the accident. ere were actually two driveways in the area of the accident. ere was no drainage system at the loca- tion of the driveways, but there was an interceptor ditch. At trial, one investigator who observed the location of the accident aer a heavy rain noticed water owing south of the driveway, but none owing from the driveway itself. He could not determine the source of the water. And although he knew it would be a problem if it happened again, he took no further action, and failed to report his concerns to the Hawaii Department of Transportation (HDOT). An HDOT employee who attended community meetings about tra c concerns re- called at least two specic complaints about water traversing the roadway at the accident location, but none of the people reporting could conrm where the water was coming from. While this employee inspected the location twice aer receiv- ing the complaints, he was unsuccessful in nding any water at the driveway locations and could not identify if the water was 296 408 So.2d 34, (La. Ct. App. 1981). 297 Id. at 36. 298 113 Haw. 332, 152 P.3d 504 (2007). driveway, sued the GDOT. e complainants’ claims were, inter alia, that GDOT (1) . . . should have recongured the roadway to eliminate dangerous and defective conditions at the driveway based upon the number of accidents that occurred there aer the driveway and shopping center were built; (2) . . . delayed issuing a permit for a tra c signal in front of the shopping center, and (3) . . . was negligent in issuing the permit to build the commercial driveway into the shopping center.291 Ga. Code Ann. § 50-21-24 provides that the state has no liability for design or construction of public ways where the design is prepared in substantial compliance with generally accepted en- gineering or design standards in eect at the time of prepara- tion of the plan or design. Not only does the statute “exempt [GDOT] from liability for highway design deciencies where the highway was initially designed in substantial compliance with existing design standards, it exempts [GDOT] from liabil- ity ‘for its failure to upgrade a highway to meet current design standards.”’292 is ruling is consistent with Hurier, supra. As to the negligent claims of inspecting the driveway aer construc- tion and issuing the tra c light permit in a timely way, the court found there had been no waiver of sovereign immunity, and therefore, no liability could attach. While court cases have indicated there is no duty to upgrade highways to current design standards when acting in the course of maintenance, there are several jurisdictions that require property owners to apply for a new driveway permit if there is a material change aecting the driveway. is can include a change in the property’s land use, tra c volume near the drive- way, or even vehicle types using the driveway. is requirement can be accomplished via terms of the permit itself, by regula- tion, or by statute. In most instances, the onus is on the property owner to apply for the new permit, which avoids placing re- sponsibility on the transportation agency to monitor properties where permits have been issued. In TexCom Gulf Disposal, LLC v. Montgomery Cty.,293 the court upheld permit language, which specically reserved the requirement to apply for a new permit “in the event of a material change in the land use or change in driveway tra c volume or vehicle types.”294 Minnesota’s Admin- istrative Code mandates that, “[i]n the event of a change in land use or major change in the tra c pattern of the existing facility, existing driveways are not automatically perpetuated, and new driveway access applications shall be submitted.”295 6. Changes in Conditions: Deterioration of Conditions While state agencies are not a guarantor of safe highways, when they are made aware of an unreasonably dangerous condi- tion, there is a duty to address it within a reasonable time. 291 Id. at 222, 540 S.E.2d at 220. 292 Id. at 223, 540 S.E.2d at 220. 293 No. H-13-2789, 2014 U.S. Dist. LEXIS 87439 (S.D. Tex. June 27, 2014). 294 Id. at *27. 295 Minn. R. 8810.5200 (2021) (Changes in Use).

34 NCHRP LRD 85 HDOT not only breached its duty to correct the defect, but it also breached the duty to warn of the defect. In the nal analysis, the test of the su ciency of the warning is not whether barriers or other physical devices are used, but is whether the means employed, whatever they may be, are reasonably su cient to give warning of the danger.300 e duty to warn adequately… is not fullled merely by installing signs if the measures taken are in- adequate to “enable users of [the] highway, exercising ordinary care and prudence, to avoid injury to themselves and others.”301 Failure to erect proper signage is even more critical when downed signage is being replaced. e court in Estate of Clark v. Daviess Cty.,302 a Kentucky case, determined that replacement, rather than initial placement, is a ministerial duty. Professional judgment had already been used to determine the need for a warning sign. An action was brought against county transporta- tion employees individually and others in their o cial capacity. e suit alleged a failure to install guardrail and the absence of a proper warning sign, which led to a fatal accident. e defen- dants, who were sued in their o cial capacities, were dismissed due to immunity from suit. e engineer who determined guardrail was not needed in the location of the accident was also dismissed due to qualied immunity. e guardrail deci- sion was a discretionary one. However, the court stated: We hold that the disputed acts (or omissions) of the individual em- ployees as to the replacement of the missing sign fall within the de- nition of a ministerial function as set out by the Kentucky Supreme Court in Yanero, supra. ere is evidence of record to support the appellants’ contention that the sign warning of the curve was down and it required immediate replacement. is evidence also supports the appellants’ allegation that Clark’s death stemmed from possible negligence of county Road Department employees.303 Collins v. Town of Greenwich,304 presents how a normally dis- cretionary function may be mishandled and consequently, im- pose liability. Prior to 2010, a driveway permit modication was approved by the town of Greenwich, Connecticut, resulting in the creation of a U-shaped semicircular driveway with a mature tree located in an island in the center of the driveway and, in turn, along the public road. It was later determined that the tree was actually in the public right-of-way and the town, through the tree warden, was responsible for the care and control of the tree. In 2010, an abutting property owner contacted the tree department to report the tree was dying and that he was con- cerned the tree would soon become a hazard. ere was no doc- umentation that any action was taken based on this complaint. More than two years later, the same abutting property owner again reported to the tree department that the tree was half dead and he had been told by an arborist that the tree should be in- spected by the tree warden. is time, the warden inspected the tree, obtained conrmation that the tree was in fact on the right- of-way, and designated the tree for removal. ere was no order 300 Id. at 360, 152 P.3d at 532. 301 Id. at 361, 152 P.3d at 533. 302 105 S.W.3d 841 (Ky. Ct. App. 2003). 303 Id. at 846 (emphasis added). 304 No. FSTCV166028449S, 2018 Conn. Super. LEXIS 312 (Super. Ct. Feb. 13, 2018). coming across the entire roadway or at a localized area. During trial, this same employee admitted that people had told him the water was coming from a driveway and he believed that to be the source of the water. He testied that given the condition, signs warning of the ooded road conditions should be placed about 500 feet from the point of the occurrence as an immediate measure. Another employee testied the road was constructed according to accepted standards and recommended that warn- ing signs be installed a quarter of a mile north and south of the location. is employee recommended grooving the pavement to mitigate hydroplaning as an intermediate measure until a permanent repair could be identied. Several other witnesses testied to seeing water owing from one of the driveways dur- ing heavy rain. e trial court found, among other things, that HDOT had been notied there was a dangerous intermittent condition at the location, and signs had been posted 200 feet south of the dangerous condition. e court also found there was no follow up inspection of the signs aer they were posted. It was months aer the fatal accident that superiors learned the sign had been placed 500 feet further down from the designated location. e court also found the source of the water on the road had not been proven, and the source of the water was critical to any remediation. e trial court concluded that there was no proof HDOT designed and constructed the bypass in an unsafe way. HDOT fullled its duty to maintain the highway free from defects by investigating and installing signs. erefore, there was insu - cient proof that HDOT’s negligence was a substantial factor in causing the injuries suered. On appeal, the Hawaii Supreme Court noted it was bound to review the nding of facts under a clearly erroneous standard, meaning there must be a substantial lack of evidence to reverse any nding. Based on that, the court found the trial court did not err in nding the sign was posted at least 500 feet south of the driveway on the day of the accident. Nor did the trial court abuse its discretion in excluding evidence of prior and subse- quent accidents. e purpose of the evidence was to show a dangerous condition rather than notify HDOT of a problem. HDOT conceded it was on notice of the dangerous condition. e State does not dispute that it owed Klink a duty to maintain the highway in a reasonably safe condition, which included the duty to mitigate and warn of known hazards; indeed, it concedes in the pres- ent matter that, “aer the construction was completed, when there were complaints of water creating a potentially dangerous condition, the State then had a duty to correct the condition or to warn of the condition’’.299 e Hawaii Supreme Court found that HDOT breached its duty to mitigate the hazard in a timely manner. While the court re- versed the trial court on the nding that the source of water was unknown, it was not critical to remediation. Determining the source of water was the best way to remedy the situation, but it was not the only way. 299 Id. at 356, 152 P.3d at 528.

NCHRP LRD 85 35 Kentucky State Police system.308 Florida has an online GIS Per- mitting search that allows users to nd the location of proper- ties with permit applications pending.309 Other states employ a manual review of documents. When a transportation agency is notied of a dangerous condition, they must take some action to repair and/or miti- gate that condition within a reasonable time. e analysis used to determine the repair or mitigation necessary must be based on professional judgment, not what an abutting owner might desire. Many times, permanent repairs cannot be put in place quickly, if at all. In those situations, there remains a duty to re- mediate the dangerous condition, and at the very least, warn the public of its existence. Crash data can serve to put an agency on constructive notice of such a condition, and if a warning has already been determined as necessary, it should be put in place quickly. If a warning has been downed by weather or some other circumstance, replacing it can be considered a ministerial duty since discretion has already been used to determine its necessity. 7. Changes in Conditions: Inspections and Monitoring A claim can be brought for negligent inspections under cer- tain circumstances. In Collins v. NREP Cabinet,310 a Kentucky statute required the Kentucky Natural Resources and Environ- mental Protection Cabinet to conduct periodic inspections of mine sites. e cabinet had issued an operating permit for a mine site which included a culvert. Although cabinet employees had inspected the mine site repeatedly to ensure the location conformed to mandatory regulatory requirements, the culvert had never been physically inspected to ensure that it was not ob- structed or to assess its ability to handle peak runo as required by regulation. Regulations for the mining operators prevented them from restricting the ow of water through the culvert by placing rail- road ties inside it. ere was testimony that the 48-inch culvert was too small to handle the peak runo from a 10-year, 24-hour precipitation event as required by regulation. In April 1987, a 13-year-old boy was the victim of a tragic accident when he went biking in an area near his home with his brother and a friend. ere was runo from melting snow, and two to three inches of water owed over parts of the road where the boys were riding. e water was high in a nearby creek, which ran underneath an access road to a strip mine and was covered by a 48-inch corrugated metal drainage culvert. e culvert was ooded as it was grossly undersized, contained several upright railroad ties inside it for reinforcement, and was clogged with debris. e boy slid o the road and into the creek on the upstream side of the ooded drainage culvert where he drowned. e cabinet argued the inspections required the exercise of judgment and were therefore the act of performing an inspection was discre- 308 Kentucky State Police, Kentucky Collision Analysis for the Public (2018), http://crashinformationky.org/ (last visited June 28, 2021). 309 FDOT, One Stop Permitting (sign-in required) https://osp.fdot. gov/#/ProcessType/bcea6559-de4d-4d27-a8ba-015bfdc28336/Process (last visited June 28, 2021). 310 10 S.W.3d 122, (Ky. 1999). to do something less than removal, indicating that removal and not pruning was necessary. A notice of the impending removal was posted, as required by statute, and the abutting property owner called to object. e statute required any objections to be made in writing. Based on the oral objection, and without a public hearing or other formality, consideration for the removal of the tree was abandoned. In 2015 the tree fell on the plainti, causing severe injuries. e case was before the court to deter- mine if a motion to dismiss based on qualied immunity should be granted. e relevant state law provides: [A] political subdivision of the state or any employee, o cer or agent acting within the scope of his employment or o cial duties shall not be liable for damages to person or property resulting from: (8) failure to make an inspection or making an inadequate or negligent inspec- tion of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property com- plies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances.305 e court denied the dismissal motion. Evidence was sub- mitted that indicated the tree warden ordered the tree removed because he believed that it was what the property owner wanted. Because of this comment, the court inferred the city was arguing that “the tree warden had authority to remove a tree, based on the perception ‘that the homeowner wanted it removed,’ explic- itly in the absence of any concern about the health of the tree or public safety.”306 e court noted that was not a proper basis for determining if the tree’s condition warranted removal. a. Collection of Crash Data and Connecting Crash Locations to Permit Locations Klink, supra, discussed how a transportation agency can be notied of a dangerous condition that demands investigation due to the crash history of the location. In Hurier, supra, the lack of crashes at a driveway location over a period of years was suf- cient support for a nding that the driveway was not a hazard to the traveling public. In a 2002 Transportation Research Board National Cooperative Research Program report on driveway regulation practices, 53% of survey respondents indicated they had a computerized system for tracking and recording driveway permits.307 In the survey conducted for this report, 72% of re- sponding agencies Permitting Sta said they did not link crash data to driveway permit locations. Only 28% indicated they did link this data. e ability to connect accident locations to driveway permit- ting locations is not necessarily easy for transportation agencies. Two states responding to the Permit Sta survey use a Safety Information Management System (SIMS) to make this connec- tion. Kentucky Department of Transportation has access to the 305 Id. at *8-9 (citing Conn. Gen. Stat. § 52-557n (b) (2018)). 306 Id. at LEXIS 312, at *17. 307 Williams, supra note 261, at 17.

36 NCHRP LRD 85 jured when he crashed into tree limbs lying in the middle of the road. When the county engineer moved to be dismissed from a civil suit against him personally for failure to remove the tree limbs, the trial court granted it based on qualied immunity. e appellate court reversed, noting the statute made the re- moval of limbs ministerial in nature. e case was remanded to determine if the engineer was negligent in his failure to remove the tree limbs. When inspection standards are codied, some jurisdictions consider them ministerial in nature. If a particular job occupa- tion is statutorily required to repair or mitigate specic danger- ous conditions, this also, can be interpreted as a ministerial duty. 8. Other Costs Associated with Access Permits due to Deterioration of Conditions ere can be costs imposed on transportation agencies if conditions of a permit deteriorate. At times, the basis of assess- ing those costs can be set in motion during the initial permit review. Commonwealth v. James,314 illuminates the importance of performing and documenting through pre-approval and as-built inspections for a driveway permit. e costs were not based on an outside claim of negligence, but rather on the fail- ure to enforce a statute that allowed the Kentucky Transporta- tion Cabinet (KYTC) to require the property owner to pay for damage caused by a design that was not built according to the permit application. An eastern Kentucky property owner applied for a driveway (encroachment) permit in 1995. An engineer technician in- spected the site and recommended that the permit be granted. During the inspection the owner discussed putting ll along the right-of-way of the abutting roadway, and the inspector report- edly told him ll could be placed along the highway the entire width of his property. ere was no discussion of any other work to be done, and no indication the permit application required a lot of details of the work to be done. In addition, there was no review of the original road construction plans from the 1930’s. A permit number was assigned to the application, indicating the application was processed. Aer the permit was granted, in addition to the ll, the owner also dug a drainage ditch around the perimeter of the property’s lower tract. Two sides of the ditch were roughly perpendicular to the highway and ran to the river, but the third side ran along the base of the highway slope, disturbing and removing the “toe” of the slope. In doing so, the property owner unknowingly buried a long-forgotten drainage ditch installed at the time the road was constructed. During trial, the owner conceded that he had not told the in- spector of these plans. In 2002, KYTC sta were notied of a substantial crack in the roadway and engineers determined that the property owner’s disruption of the toe of the slope had com- promised the highway’s lateral support and was causing a “cylin- drical failure” of the roadway. During the controversy, engineers reviewed the original plans and examined the old drain with an inlet on the uphill side of the road, passing under the road, 314 No. 2006-CA-001245-MR, 2007 Ky. App. LEXIS 1071 (Ct. App. June 29, 2007). tionary. e trial court found the cabinet liable, and the case was appealed. e Kentucky Supreme Court found the inspection of drainage culverts to assure they conform to these regulations does not require any signicant judgment, statutory interpre- tation, or policy-making decisions. Instead, these inspections require attention to specic details, such as whether the culvert is blocked and whether it is large enough to handle a specied amount of water. e regulations can be enforced in a routine, ministerial manner, and thus their negligent performance is actionable. is is not a driveway case, but it is instructive. It is signi- cant that there were specics within the coal mining regulations for the size of the culvert and a prohibition against the use of railroad ties. ere was an obligation to monitor those condi- tions, and the failure to do so adequately imposed liability on the agency. A large majority of jurisdictions follow the law that transportation agencies are not insurers of the highway system but are under an obligation to investigate and correct it once made aware of a dangerous condition. Professional judgment determines the necessary repair and/or warning. However, a thorough inspection would be required to make those profes- sional decisions. e question of continued monitoring of permitted drive- ways should be of concern to transportation professionals. For example, N.H. Rev. Stat. Ann. § 236:13 provides: “e commis- sioner of transportation or planning board shall retain continu- ing jurisdiction over the adequacy and safety of every existing driveway, entrance, exit, and approach to a highway, whether or not such access was constructed or installed pursuant to a permit under this section, ….”311 e statute goes on to instruct the commission to order a property owner to repair a hazardous condition. e scope and extent of this responsibility, however, is not always clear. No cases were found based on that statute, but a Kentucky case is instructive. In Wales v. Pullen,312 a Kentucky state statute required a Jeerson County engineer to “remove trees and other obstacles from the right-of-way of any publicly dedicated road when the tree or other obstacle becomes a hazard to tra c.”313 e engi- neer was not aware of this statute, nor was this responsibility listed in his job description. Jeerson County and the City of Louisville have a merged government system. ere was a spe- cic division within the city’s Metro Government and Public Works Department, which handled the safe removal of downed trees. In 2008, Louisville experienced a signicant windstorm, which downed trees and powerlines across the city. ere was a system in place to allow the public to notify the city/county government of a downed tree and request necessary assistance. is storm overwhelmed that system. Six days aer the storm, a motorcyclist returning from a night out with his friends was in- 311 N.H. Rev. Stat. Ann. § 236:13VI. (2021) (Driveways and Other Accesses to the Public Way). 312 390 S.W.3d 160, 163 (Ky. App. 2012). 313 Id. at 163 (citing Ky. Rev. Stat. § 179.070 (j) (General powers and duties of engineer-requirement of site development plan in certain counties)).

NCHRP LRD 85 37 into a four-lane road. Two deeds were executed by agreement, one for the property needed for the new roadway and one to locate a slight are at an intersection for better site distance. e 1958 deeds recited that the consideration paid was a settlement of any and all claims, including damage claims that the current or subsequent owners might have due to roadway construction. At the time the property had a graveled driveway that the own- ers and their successors in interest used until it was barricaded. In 1974 the Mississippi Department of Transportation (MDOT) needed additional property from this location. When suit was led MDOT barricaded the graveled driveway. During the con- demnation trial the current owners were allowed to introduce valuation evidence for loss of access. MDOT argued it was an illegal driveway and non-compensable. e court noted that the relevant MDOT manual at the time did not permit drive- ways at intersections where site distance had been obtained. e Mississippi Supreme Court held that the deed eectively com- pensated the previous owner for access rights and further stated: e fact that appellees continued using the driveway to High- way 49 without a permit, which use for a time was “winked at” and not restricted by the department, implies nothing more than a permissive way, which could in no way ripen into a right of access. Permissive use of such driveway across Highway Department prop- erty would be subject to termination by the Highway Department without additional compensation under the police power.319 In Chandler v. State,320 a Louisiana road improvement project resulted in pipe being placed in front of property containing a grocery store with two 80-foot driveways. e driveways were essentially as wide as before the improvement project. e space between the entrances was lled in so that it was one long entrance. e person who owned the property at the time of construction of the road improvement was not advised by the contractor or the Louisiana DOTD of a 35-foot limitation on commercial driveways. e property sold, and the new owner paved the driveway and parking lot with concrete. Part of the concrete was on highway property, and the new owner was con- tacted by DOTD and informed a permit was needed prior to driveway construction, so the new owner applied for a permit. Unknown to the previous and new owners was a regulation that limited commercial driveways to a width of 35 feet. Aer the application was led the new owner was advised it would cost approximately $25,000 to $30,000 to bring the driveway into regulatory compliance. e new owner submitted proof that other businesses along this same stretch of highway had en- trances far greater than 35 feet. e new owner did not bring the driveway into compliance and DOTD notied him they would be removing those driveway portions in excess of the regula- tory width. e owner sued for an injunction to prohibit DOTD from destroying any part of the entrance. e trial court issued the injunction, basing the ruling on the failure of DOTD to notify owners of the driveway regulations prior to construction of the road improvement. A statute in eect authorized DOTD to set standards and issue permits, as well as dene the regula- 319 Id. at 1327. 320 844 So.2d 905 (La. 2003). and the outlet at what had become the entrance to the driveway. is was the point of road failure. KYTC ordered the owner to x the problem, which was estimated between $126,000 and $160,000. When he did not make the repair, KYTC led suit, seeking to force removal of the encroachment. Permit standards or procedures were not introduced into evidence. Witnesses did not conduct a professional survey of the ll and ditches the owner had constructed, so the court was unable to establish if the ditches were on the right-of-way or on the owner’s property. ere was also a question of whether the owner’s permit work actually caused the cylindrical failure. ere was doubt over whether the failure existed prior to the permit being issued, and if there were other causes. Evidence indicated there were other cracks in the roadway beyond this property. e appellate court, in reviewing the trial court decision, determined there wasn’t su cient evidence to question the trial court’s factual ndings and the only legal remedy provided by statute was to remove the encroachment at the owner’s expense. Since it was never adequately determined that the work performed by the owner was on the state right-of-way, this remedy was not available to KYTC. As-built plan reviews and record keeping play a critical role in enforcing access permit laws and defending against claims involving those permits. Transportation agencies could benet from organized information management that includes easy ndability for a engineers, attorneys, and other users. D. Takings Liability and Liability for Negligence: Unpermitted Driveways Legislation that addresses access permits or access manage- ment will typically address how driveways constructed without the benet of a permit will be viewed. Michigan considers any unpermitted driveway to be unlawful.315 at would allow for closing the driveway, but the common law requirements would still govern the outcome of such a closure as it relates to com- pensation for acquiring access. A New Jersey statute provides, “Every State highway intersection with a driveway or public street or highway in existence prior to January 1, 1970 shall be assumed to have been constructed in accordance with an access permit, even if no permit was issued.”316 e eect of viewing an unpermitted driveway as being in compliance does not pre- vent closing the driveway, it merely requires the transportation agency to adhere to the same process that is required to revoke a permit.317 An unpermitted driveway can also result in a decision that the owner is not entitled to be compensated for the loss of it in a condemnation action. In Miss. State Highway Com. v. Blackwell,318 property was acquired to convert a two-lane road 315 See, Scholma v. Ottawa Cty. Rd. Comm’n, 303 Mich. App. 12, 840 N.W.2d 186 (2013). 316 N.J. Stat. § 27:7-92C (2021) (Access Permit). 317 See, In re Revocation of Access of Block No. 613, Lots No. 4 & 5, Tp. of Toms River, Ocean Cty., 224 N.J. 53, 55, 128 A.3d 1086, 1087 (2016). 318 350 So.2d 1325 (Miss. 1977).

38 NCHRP LRD 85 “[l]icensing powers or functions, including, but not limited to, the issuance, denial, suspension, or revocation of or the failure or refusal to issue, deny, suspend, or revoke any permit, license, certicate, approval, order, or similar authorization.”324 is Georgia exception to its waiver of immunity has been inter- preted to include driveway permits.325 e Commonwealth of Pennsylvania also provides an immunity waiver for “…for any injury to persons or property arising out of the issuance or de- nial of a driveway permit or for failure to regulate any drive- way.326 Massachusetts excepts the waiver from applying to the performance of discretionary function or duty and any claim based upon the issuance, denial, suspension or revocation or failure or refusal to issue, deny, suspend or revoke any permit, li- cense, certicate, approval, order or similar authorization; and any claim based upon the failure to inspect, or an inadequate or negligent inspection, of any property, real or personal, to determine whether the property complies with or violates any law, regulation, ordinance or code. . . .327 Due to the expanded waiver of these immunity protections, the state of New Hampshire enacted what is commonly referred to as an “insu ciency statute” in 1993. e statute is intended to provide some reasonable protection from liability. It requires notice of an alleged insu ciency before any liability can be im- posed. A highway or bridge is considered insu cient only if: (a) It is not passable in any safe manner by those persons or vehicles permitted on such highway or bridge thereon; or (b) ere exists a safety hazard which is not reasonably discoverable or reasonably avoidable by a person who is traveling upon such high- way or highway bridge at posted speeds in obedience to all posted regulations, and in a manner which is reasonable and prudent as determined by the condition and state of repair of the highway or highway bridge, including any warning signs, and prevailing visibility and weather conditions.328 e constitutionality of the statute has been upheld.329 Other states are giving more attention to language used in the permit itself. Events unrelated to transportation agency activities have given public focus to limiting the sovereign im- munity protections. Take for example, in Iron Gate Partners v. Transportation, supra, a permit stated that it did not aect the Washington State Department of Transportation’s (WSDOT) “right to full supervision and control over all or any part of” the roads; and that it could be “revoked, amend[ed], or cancel[led] . . 324 Ga. Code Ann. § 50-21-24(9) (2021) (Exceptions to state liabil- ity). 325 See DOT v. Cox, 246 Ga. App. 221, 540 S.E.2d 218 (2000). 326 35 Pa. Stat. Ann. § 7210.502(b)(4)(i) (2021) (Consideration of applications and inspections). See also Ling v. Commonwealth, 79 A.3d 1 (Pa. Commw. Ct. 2013). 327 Mass. Ann. Laws, ch. 258, § 10 (e), and (f) (2021) (Applicability of §§ 1-8 (Certain Actions Excepted)). 328 N.H. Rev. Stat. Ann. § 230:78, II (2021) (Duty of the Depart- ment of Transportation Aer Notice of Insu ciency). 329 Craig S. Donais, Attorney General Article: Department of Justice’s Transportation and Construction Bureau: Trains, Planes And Automo- biles. 45 N.H.B.J. 78, 83 (2004). tion, prohibition, and abolishment of entrances and exits. It also gave DOTD the authority to remove anything that is in viola- tion of a lawful regulation. e owner argued the driveway should be allowed to stay there because the driveway had always exceeded the regula- tion. e fact that he paved the driveway with concrete should not make any dierence. e court went on to point out that while other driveways were also in violation of the regulation with no enforcement actions having been taken against those business owners, there was no showing that any discrimination was intentional, arbitrary, and purposeful. e appellate court reversed the decision of the trial court. Unpermitted driveways by denition do not involve any transportation agency review or approval of the driveway for safety or other considerations. Knowledge of an unpermitted driveway does not create a duty to remove the driveway or bring it into compliance with current standards. Courts across juris- dictions have recognized such an obligation would be too costly both in manpower and funding. Agencies are not required to address the existence of every unpermitted driveway. In Transp. Cabinet, Dep’t of Highways v. Express Mart,321 a Kentucky court upheld the decision of the KYTC to take action against one bill- board owner and not others similarly situated. e court noted, e evidence in this case established that enforcement of KRS 177.841(2) was administered at the district level by the highway department and that the extent to which enforcement was pursued was the decision of the administrator of each district. Administra- tors based their decisions on the availability of funds and personnel within their district.322 ese are the same factors that determine the placement of guardrail, which is universally accepted as a discretionary judg- ment given limits on manpower and funding.323 Liability for negligence in failing to remove or require a driveway to be brought up to standard would arise only if the transportation agency received actual or constructive notice that there was a dangerous condition. E. State Responses to Liability Liability for driveway permits under a negligence claim is handled in the same manner as other negligence claims against a transportation agency. Because of the nature of the permit process, many of the functions of approving a permit are dis- cretionary in nature, but some are not. In order to protect the professional judgment of transportation engineers from being questioned in every courthouse across a jurisdiction, some states have chosen to make an exception to their waiver of sovereign immunity for such decisions and acts. is includes Georgia law, which states that in a sovereign immunity waiver, 321 759 S.W.2d 600 (Ky. Ct. App. 1988). 322 Id. at 601. 323 See e.g., Bolin v. Davis 283 S.W. 3d 752 (Ky. App. 2009); Indus. Indem. Co. v. State, 669 P.2d 561 (Alaska 1983); but see, Bd. of Cty. Comm’rs v. Darst, 96 Ohio St. 163, 117 N.E. 166 (1917), where duty can be created by statute.