Public Liabilities Relating to Driveway Permits (2022) / Chapter Skim
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Pages 16-38
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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 compensable in limited circumstances.
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NCHRP LRD 85 17 ing that a license or permit "has the purpose of regulation under the police power")
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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 bene ts of legislation or formal regulation.
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NCHRP LRD 85 19 way permit application. Instead, it provided basic parameters, such as concern for proper drainage structures, [citation omitted]
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20 NCHRP LRD 85 was issued in 1975. Later that same year, ODOT adopted new highway safety standards for driveways.
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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.
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22 NCHRP LRD 85 v. Marlton Plaza Assocs., Ltd.
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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.
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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.
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NCHRP LRD 85 25 1. Liability Protection: Indemnification Agreements Indemni cation clauses can be a source of protection from inverse condemnation claims.
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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 contested, 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.
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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 acknowledged 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.
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28 NCHRP LRD 85 Access management programs have components and obligations that may give rise to liabilities while granting, denying, revoking, or modifying permits. Permit applications are reviewed, constructed driveways are inspected, and the terms of a permit may change.
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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 before a decision is made.
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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.
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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.
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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.
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NCHRP LRD 85 33 In O'Quinn v. State, Dep't of Transp.
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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 ful lled merely by installing signs if the measures taken are inadequate to "enable users of [the]
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NCHRP LRD 85 35 Kentucky State Police system.308 Florida has an online GIS Permitting search that allows users to nd the location of properties with permit applications pending.309 Other states employ a manual review of documents. When a transportation agency is noti ed of a dangerous condition, they must take some action to repair and/or mitigate that condition within a reasonable time.
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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 quali ed immunity.
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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.
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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, certi cate, approval, order, or similar authorization."324 is Georgia exception to its waiver of immunity has been interpreted 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 denial of a driveway permit or for failure to regulate any driveway.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, license, certi cate, 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.
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