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42 NCHRP LRD 85 APPENDIX A: SURVEY FOR TRANSPORTATION A EN Y ATTORNEYS on ing Organization laska epartment of aw onnecticut epartment of Transportation eorgia ttorney eneral s ffice entucky Transportation abinet ouisiana epartment of Transportation and evelopment ississippi epartment of Transportation issouri epartment of Transportation ontana epartment of Transportation klahoma epartment of Transportation ansas epartment of Transportation ffice of the ttorney eneral of irginia APPENDIX A: SURVEY FOR TRANSPORTATION AGENCY ATTORNEYS
NCHRP LRD 85 43 Which of the following best describes the law in your state with regard to changes in access caused by a road construction or reconstruction project ield inimum a imum ean td eviation ariance ount Which of the following best describes the law in your state with regard to changes in access caused by a road construction or reconstruction project . . . . . nswer ount hanges in access are considered a taking in my state and compensation is re uired. . hanges in access are not considered a taking unless the property is left with no reasonable access. nly then is loss of access compensable. . ther . Total
44 NCHRP LRD 85 s a denial of an egress ingress permit compensable in your state ield inimum a imum ean td eviation ariance ount s a denial of an egress ingress permit compensable in your state . . . . . nswer ount es . No . nly in limited circumstances . Total
NCHRP LRD 85 45 . f only in limited circumstances, please briefly describe those f only in limited circumstances, please briefly describe those damage to business operations bought under inverse condemnation enial would be compensable as a taking if there was no other reasonable access. f denial of a permit results in a taking of the property via inverse condemnation, which is a strict and high standard n the past years, has your T been sued under the legal theory that a denial of an access permit was a taking ield inimum a imum ean td eviation ariance ount n the past years, has your T been sued under the legal theory that a denial of an access permit was a taking . . . . . nswer ount es . No . Total
46 NCHRP LRD 85 f your T has been sued for denying an access permit, what was the legal theory for the suit lease select all that apply. nswer ount enial of an access permit is a taking. . The denial of an access permit was an unwarranted abuse of discretion. . The denial of an access permit did not provide proper due process. . ther . Total . f you answered other, please briefly describe. f you answered other, please briefly describe.
NCHRP LRD 85 47 a ow fre uently do these cases occur ield inimum a imum ean td eviation ariance ount ow fre uently do these cases occur . . . . . nswer ount per year . per year . or more per year . Total f you answered other, please briefly e plain. f you answered other, please briefly e plain.
48 NCHRP LRD 85 b s the T successful in defending these cases ield inimum a imum ean td eviation ariance ount s the T successful in defending these cases . . . . . nswer ount es, all of the time . es, most of the time . es, but only occasionally . No, but only occasionally . No, most of the time . No, none of the time . Total
NCHRP LRD 85 49 c f the results are positive, what do you attribute to your T s success in defending the suit f the results are positive, what do you attribute to your T s success in defending the suit . . . . The state shall have no liability for losses resulting from 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, certificate, approval, order, or similar authorization The landowner was the person that created his access difficulty by selling a portion of the property that contained the access point and agreeing to use of the access point. When a new owner purchased the access property, the new owner did not want the landowner using his property to access the remaining property so the landowner approached T for another access point on the highway. The matter was dropped by the landowner. The facts of the case usually there is an e isting drive or permit and the applicant wants to increase the size or location, which may be not feasible for safety reasons because the landowner is usually left with some form of ngress or egress, we have been successful however in many cases we settle and even purchase property to avoid continued future litigation over driveway permits each time the property changes hands. d f the results are negative, what do you attribute to your T s failure in defending the suit f the results are negative, what do you attribute to your T s failure in defending the suit
50 NCHRP LRD 85 s revocation of an egress ingress permit compensable in your state ield inimum a imum ean td eviation ariance ount s revocation of an egress ingress permit compensable in your state . . . . . nswer ount es . No . nly in limited circumstances . Total
NCHRP LRD 85 51 . f only in limited circumstances, please briefly describe those. f only in limited circumstances, please briefly describe those. We do pay 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 necessary entails reduction in access and that is compensable in certain circumstances. . . . . provides that the T 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. f the epartment left no other access to the property, it would be compensable as a taking. ee previous narrative. t depends on the factual circumstances and if the denied permit access was the only reasonable access
52 NCHRP LRD 85 n the past years, has your T been sued for revoking an access permit ield inimum a imum ean td eviation ariance ount n the past years, has your T been sued for revoking an access permit . . . . . nswer ount es . No . Total
NCHRP LRD 85 53 f your T has been sued for revoking an access permit, what was the legal theory for the suit lease select all that apply. nswer ount The revocation was a taking . The revocation was an unwarranted abuse of discretion . The revocation did not provide due process . ther . Total . f you answered other, please briefly e plain. f you answered other, please briefly e plain.
54 NCHRP LRD 85 a ow fre uently do these cases occur ield inimum a imum ean td eviation ariance ount ow fre uently do these cases occur . . . . . nswer ount per year . per year . or more per year . Total
NCHRP LRD 85 55 b s the T successful in defending these cases ield inimum a imum ean td eviation ariance ount s the T successful in defending these cases . . . . . nswer ount es, all of the time . es, some of the time . es, but only occasionally . No, but only occasionally . No, some of the time . No, none of the time . Total
56 NCHRP LRD 85 c f the results are positive, what do you attribute to your T s success in defending the suit f the results are positive, what do you attribute to your T s success in defending the suit evocation of permit access is caused for safety purposes klahoma juries have been receptive to the reasons for the permit revocations. d f the results are negative, what do you attribute to your T s failure in defending the suit f the results are negative, what do you attribute to your T s failure in defending the suit
NCHRP LRD 85 57 a as your state waived its sovereign immunity protections from suit ield inimum a imum ean td eviation ariance ount as your state waived its sovereign immunity protections from suit . . . . . nswer ount es . No . Total
58 NCHRP LRD 85 b f so, please briefly e plain the waiver and give a statutory reference for it. f so, please briefly e plain the waiver and give a statutory reference for it. The eorgia onstitution e pressly preserves the tate s sovereign immunity and makes clear that such immunity can only be waived by an ct of the eneral ssembly which specifically provides that sovereign immunity is waived and the e tent of such waiver. a. onst. of , rt. , ec. , ar. e . The eneral ssembly has waived sovereign immunity for breach of a written contract and under the a Tort laims ct. irginia has waived its sovereign immunity protections for inverse condemnation. ansas Tort laims ct allows for negligence claims to be made against the government. The act limits liability to , per occurrence. . . . et se . klahoma was waived sovereign immunity in all but a list of numbered e emptions. We have tort claim immunity via e emption for permit denial.
NCHRP LRD 85 59 n the past years, has your T had a claim made against it for negligence in implementing its access permitting process ield inimum a imum ean td eviation ariance ount n the past years, has your T had a claim made against it for negligence in implementing its access permitting process . . . . . nswer ount es . No . Total
60 NCHRP LRD 85 f your T has had a claim made against it for negligence in implementing its permitting process, what was the legal theory for the suit lease select all that apply. nswer ount Negligent design . ailure to inspect . Negligent inspection . ailure to mitigate and or warn of a dangerous condition . ther . Total
NCHRP LRD 85 61 . f you answered other, please briefly e plain. f you answered other, please briefly e plain. The landowner is claiming a local entity and T worked together to negligently deny access. a ow fre uently do these cases occur ield inimum a imum ean td eviation ariance ount ow fre uently do these cases occur . . . . . nswer ount per year . per year . or more per year . Total
62 NCHRP LRD 85 b s the T successful in defending these cases ield inimum a imum ean td eviation ariance ount s the T successful in defending these cases . . . . . nswer ount es, all of the time . es, most of the time . es, but only occasionally . No, but only occasionally . No, most of the time . No, none of the time . Total
NCHRP LRD 85 63 c f the results are positive, what do you attribute to your T s success in defending the suit f the results are positive, what do you attribute to your T s success in defending the suit The matter has not concluded. d f the results are negative, what do you attribute to your T s failure in defending the suit f the results are negative, what do you attribute to your T s failure in defending the suit What improvements would you suggest for your driveway permitting process What improvements would you suggest for your driveway permitting process None. None at this time. laska T has a very complicated administrative appeal process, which could be made easier to navigate. None None None. ut process works very well. We sometimes have trouble with adjacent property owners filing complaints or concerns about joint driveway permits and have found that we need to verify ownership by the applicant and the neighbor rather than relying on his her word that he or she owns the property. would have an administrative review process at the agency level to review permit revocations or denials currently there is no administrative process so those denied a permit go directly to court.
64 NCHRP LRD 85 o you consider litigation involving driveway permits a problem area for your state s T, and if so, what suggestions do you have for defending these types of claims o you consider litigation involving driveway permits a problem area for your state s T, and if so, what suggestions do you have for defending these types of claims No. None No. The laska upreme ourt ruled that adjacent land owners have no right to direct access. No. No. Not a problem T does not consider approach permits to be an issue No No, litigation involving driveway permits is not a problem area for our state. no. We have less of a problem with the driveway permit application process as we do with changing traffic flow on the main roadway i.e., putting up pipe and cable barriers and cutting off cross overs moving on and off ramp locations which interferes with business traffic, etc.
NCHRP LRD 85 65 n the past five years, has your T had a claim been made against it involving an unpermitted access point ield inimum a imum ean td eviation ariance ount n the past five years, has your T had a claim been made against it involving an unpermitted access point . . . . . nswer ount es . No . Total
66 NCHRP LRD 85 f your T has had a claim made against it involving an unpermitted access point, what was the theory of the suit lease select all that apply. nswer ount ailure to inspect after receiving notice of a dangerous condition . Negligent inspection of a dangerous condition . ailure to mitigate and or warn of a dangerous condition . ther . Total
NCHRP LRD 85 67 a ow fre uently do these claims occur ield inimum a imum ean td eviation ariance ount ow fre uently do these claims occur . . . . . nswer ount per year . per year . or more per year . Total
68 NCHRP LRD 85 b s the T successful in defending these cases ield inimum a imum ean td eviation ariance ount s the T successful in defending these cases . . . . . nswer ount es, all of the time . es, most of the time . es, but only occasionally . No, but only occasionally . No, but most of the time . No, all of the time . Total
NCHRP LRD 85 69 c f the results are positive, what do you attribute to your T s success in defending the suit f the results are positive, what do you attribute to your T s success in defending the suit d f the results are negative, what do you attribute to your T s failure in defending the suit f the results are negative, what do you attribute to your T s failure in defending the suit
