OAR 734-051-3020: Change of Use of a Private Connection

(1) Applicability. (a) This rule sets forth procedures and requirements for a change of use of an existing private connection to a state highway. (b) A new application is required for the purpose of permitting all connections to a property when there is a change of use as set forth in section (2) of this rule. All connections to the property are subject to this rule whether they exist under a Permit to Operate, are grandfathered under OAR 734-051-1070(30), or the department provides written permission under 734-051-3015. (2) Changes of Use Requiring an Application for State Highway Approach. Except as provided under section (5) of this rule, a new application is required for a change of use when any one of the following: (a) The number of peak hour trips increases by fifty (50) trips or more from that of the property’s prior use and the increase represents a twenty (20) percent or greater increase in the number of peak hour trips from that of the property’s prior use; or (b) The average daily trips increases by five hundred (500) trips or more from that of the property’s prior use and the increase represents a twenty (20) percent or greater increase in the average daily trips from that of the property’s prior use; or (c) The daily use of a connection increases by ten (10) or more vehicles with a gross vehicle weight rating of twenty-six thousand (26,000) pounds or greater; or (d) ODOT demonstrates that safety or operational concerns related to the connection are occurring as identified in OAR 734-051-4020(3); or (e) The connection does not meet the stopping sight distance standards, as measured in feet, of ten (10) times the speed limit established in ORS 811.111 or the designated speed posted under 810.180 for the highway as measured in miles per hour, or ten (10) times the 85th percentile speed of the highway where the 85th percentile speed is higher or lower than the speed limit established in 811.111 or the designated speed posted under 810.180. The applicant may perform a study to determine if the 85th percentile speed is higher or lower than the speed limit established in 811.111 or the designated speed posted under 810.180. The sight distance measurement, as described in OAR 734-051-4020(2)(c)(A)–(B), and the study to determine the 85th percentile speed shall be performed according to published department procedures by or under the supervision of a professional engineer as defined in 734-051-1070. The measurement shall be taken under existing and proposed site conditions. (3) Mandatory Meeting. Unless waived by the department, a meeting between ODOT staff and the applicant is required for a change of use application prior to the department deeming the application complete. It is preferable that the meeting be held prior to submittal of the change of use application. (4) Determinations of Change of Use. The department shall determine whether a change of use meets the thresholds in section (2) of this rule by using one or more of the following methods: (a) Field counts; (b) Site observation; (c) Traffic impact analysis; (d) Field measurement; (e) Crash history; (f) Trip Generation, 11th Edition published by the Institute of Transportation Engineers (ITE); or (g) Information and studies provided by the local jurisdiction or the applicant. (5) Exempt from Application for Change of Use. Buildout of an approved site plan or multi-phased development does not require a new application for an approach road permit where the department determines that the buildout is consistent with the land use approval by the local government and the permit issued by the department for development. (6) Approval Criteria. The department shall approve an application for a state highway approach that does not pose a safety or highway operations concern, as set forth in OAR 734-051-4020(3), or all such concerns are sufficiently mitigated pursuant to OAR 734-051-3070, and: (a) The application meets the applicable approach road spacing, channelization and sight distance standards set forth in OAR 734-051-4020(2)(a) through (c); or (b) The department and the applicant reach agreement that the application moves in the direction of conforming to approach road spacing, channelization, and sight distance standards under sections (7) through (9) of this rule; or (c) The applicant and the department reach agreement under section (6)(b) that the existing condition without change is sufficient to support approval of an application. (7) Moving in the Direction of Conformity Collaborative Process. The department and applicant, through a collaborative process, shall determine whether an application moves in the direction of conforming to the spacing, channelization or sight distance standards subject to safety and operations concerns. The collaborative process shall be made available to the applicant within thirty (30) days of the date an application for state highway approach is deemed complete. (8) Criteria for Moving in the Direction of Conformity. In determining whether an application for a private approach to a state highway moves in the direction of conformity with the spacing, channelization and sight distance standards of OAR 734-051-4020, the department shall consider all connections on the subject site. An application moves in the direction of conformity with 734-051-4020 when changes are made to a connection that include, but are not limited to, one or more of the following: (a) Eliminating or combining existing connections to the highway resulting in a net reduction in the number of connections; or (b) Improving the distance between connections; or (c) Improving sight distance; or (d) Widening an existing connection to accommodate truck turning radius requirements; or (e) Widening an existing connection to accommodate additional exit lanes; or (f) Narrowing an existing connection to provide the appropriate number of entry and exit lanes as required for the property; or (g) Developing a throat on a connection to allow for more efficient movement of motorists from the highway. (9) Agreement. Where the department and applicant agree that a change of use application moves in the direction of conforming to spacing, channelization, and sight distance standards, the department shall approve the application without requiring separate deviations from those standards. The department, upon completion of the terms of agreement, shall issue a Permit to Operate for all approaches that are to remain operational as identified in the agreement. An agreement to remove, modify, or mitigate a connection pursuant to the agreement between the department and the applicant is not an appealable decision. (10) Where Agreement is Not Reached. (a) If, after participating in a collaborative process pursuant to section (7) of this rule, the applicant and the department cannot agree that an application is moving in the direction of conformity pursuant to sections (8) and (9) of this rule, the region manager shall document the issues of agreement and non-agreement with the applicant through a written statement of non-agreement. The applicant may then request further collaboration on the issues of non-agreement under OAR 734-051-3090, sections (1) through (3), and/or a review by the Dispute Review Board under 734-051-3100. (b) Where agreement cannot be reached under the processes of subsection (a) of this section, the department may require additional information to complete the application and make a decision pursuant to the standards of OAR 734-051-4020 and issue a final decision to approve, deny, or approve with mitigation, consistent with the procedures in OAR 734-051-3030 and 3040. The department’s decision to deny or approve with mitigation applications under the standards of OAR 734-051-4020 are subject to post-decision review under OAR 734-051-3080. (11) Connections Not Subject to Moving in the Direction of Conformity Criteria. Notwithstanding sections (6) through (8) above, the “moving in the direction of” criteria as set forth in section (8) of this rule shall not be applied to the connections in subsections (a) through (f), below. For these connections, the department shall apply the standards of OAR 734-051-4020 to approve, deny, or approve with mitigation the application, consistent with the procedures in OAR 734-051-3040. (a) Connections where no right of access to the property exists at the location of the connection, and an application for a grant of access or indenture of access is not approved; (b) Connections to undeveloped property without an approved site plan or land use approval allowing for development of the property; (c) Connections for which the department rebuts a presumption of written permission under OAR 734-051-3015; (d) Connections to property abutting a highway segment with a statewide classification and a posted speed of 50 miles per hour or greater; (e) Connections to property abutting a highway segment designated as an expressway; and (f) Connections to property within the boundaries of an adopted facility plan, or corridor plan, where the connection is inconsistent with the plan, and the planned component for the access to the property has been constructed or is funded to be constructed within four years at the time of the application.