OAR 734-051-3015: Presumption of Written Permission for an Existing Private Connection

(1) Applicability. This rule applies to those existing private connections for which the department has not: (a) Issued a Permit to Operate in accordance with OAR 734-051-3010 (Permit for Private Approach); or (b) Issued a Permit to Operate under section (3) of this rule; or (c) Issued documentation recognizing the connection as grandfathered under OAR 734-051-1070 (Definitions). (2) Presumption of Written Permission. (a) An owner of real property abutting a state highway with a connection to a state highway that existed on January 1, 2014 is presumed to have the Department of Transportation’s written permission for the connection based upon documentation for a highway project completed by the department that shows that the connection was built or rebuilt as part of a highway project or that the department intended to issue an approach permit to the property owner for the connection. (b) An owner of real property abutting a state highway with a connection that was in existence before April 1, 2000, is also presumed to have the department’s written permission for the connection based upon documentation in any form that shows: (A) That the connection was in existence before July 16, 1949; or (B) That the connection was in existence before the department accepted jurisdiction of the highway from a city or county; or (C) That the connection was built or rebuilt to the abutting property with the department’s knowledge or permission. (c) There is no presumption of written permission under this rule where there is not a right of access to the state highway as defined in OAR 734-051-1070 (Definitions). (d) Connections presumed to have written permission under this section are subject to OAR 734-051-3020 (Change of Use of a Private Connection) as set forth in section 4 of this rule. (e) An owner of real property with a connection presumed to have written permission under this section is responsible for the cost and performance of maintaining the connection in accordance with OAR 734-051-5090 (Maintenance of Approaches). (f) The department may rebut that an existing connection has a presumption of written permission under section 7 of this rule. (3) Issuance of a Permit to Operate. The department may issue a Permit to Operate for a connection that it does not rebut as having a presumption of written permission if a change of use has not occurred as set forth in OAR 734-051-3020. (4) New Application Required for Change of Use. Connections deemed to have a presumption of written permission under section 2 of this rule are subject to the requirements and procedures for change of use as set forth in OAR 734-051-3020. (a) If the department determines that the connection meets one of more of the criteria for a change of use as set forth in 3020(2), the property owner is required to submit a new application for all approaches to the property as set forth in OAR 734-051-3020(1) and 734-051-3030 (Application Requirements for State Highway Approach). (b) For the purposes of OAR 734-051-3020(2)(a) and (b), prior use is the use of the property on January 1, 2014. For the purposes of 734-051-3020(2)(c), the increase in daily use of a connection by vehicles with a gross vehicle weight rating of twenty-six thousand (26,000) pounds or greater is based on the use of the connection on January 1, 2014. (5) Removal of a Connection. If the department intends to remove a connection that it does not rebut as having a presumption of written permission, the department shall provide notification as set forth in OAR 734-051-5110(2) and the removal shall be subject to the post-decision review processes of 734-051-3080 through 3110 and remedies as set forth in 734-051-6010 through 6070. (6) Connections Located on Open Frontage. Open frontage refers to a large open area along the highway right of way where the location for entry to or exit from an abutting property is not clearly defined. For the purposes of sections 2 and 3 of this rule, the department shall determine the location and dimensions of the connection within open frontage that it deems to have provided written permission in collaboration with the property owner(s) and, where possible, the property lessees and business operators. The department shall consider the land use served by the connection on January 1, 2014 and the current standards of the Oregon Highway Design Manual. (7) Department Rebuttal of a Presumption of Written Permission. (a) The department shall have the burden to establish that the factual basis for a presumption of written permission under sections 2(a) and (b) of this rule does not exist. (b) The department may rebut the presumptions of written permission by establishing the following: (A) A search of department as-constructed plans for highway projects where the connection is located do not show a note to build or rebuild the connection as part of a project; and (B) Neither the department nor the property owner have written documentation indicating that ODOT approved issuance of a permit to construct or a Permit to Operate for the connection; and (C) For connections that existed prior to April 1, 2000: (i) Photographic evidence or other historical documentation indicates that the connection was established after July 16, 1949; and (ii) Photographic evidence or other historical documentation indicates that the connection did not exist before the date that the department accepted jurisdiction of the highway; and (iii) Written documentation from the department to the property owner dated prior to January 1, 2014 indicates that construction of the connection was not authorized or that the connection is no longer authorized by the department for the reasons specified in the documentation. (c) If the department establishes that an existing connection does not have the presumption of written permission under this rule, then: (A) The connection is subject to removal or reconstruction as provided in ORS 374.307 and the property owner is not entitled to file a claim for relief under OAR 734-051-6010; and (B) The department shall not offer an administrative remedy under OAR 734-051-6020 through 6070.