OAR 734-051-5120: Access Management in Project Delivery

(1) Applicability: (a) This rule applies to access management in the project delivery process for modernization and highway improvement projects included in the Statewide Transportation Improvement Program. (b) For purposes of this rule, a highway improvement project is a project in the Statewide Transportation Improvement Program that proposes to modify, relocate, or remove existing public or private connections to the state highway within project limits. (2) Department Exemptions. This rule does not create an obligation that the department apply documentation requirements in OAR 734-051-3010 through 734-051-3050 (documentation requirements that pertain to approach permit applications). (3) Access Management Strategy (a) The department shall develop an access management strategy during project delivery for modernization and highway improvement projects included in the Statewide Transportation Improvement Program. The access management strategy shall be developed in collaboration with cities, counties and owners of real property abutting a state highway and shall be consistent with the Oregon Transportation Plan, the Oregon Highway Plan, and other transportation modal plans adopted by Oregon Transportation Commission. (b) An Access management strategy shall include an access management methodology that balances the economic development objectives of properties abutting the state highway with the transportation safety, access management objectives, and mobility of state highways, in a manner consistent with local transportation system plans and the land uses permitted in the local comprehensive plans acknowledged under ORS chapter 197. (c) An Access management strategy shall identify the location and type of public and private approaches and other necessary improvements that are planned to occur primarily in the highway right of way and that are intended to improve current conditions on the highway by moving in the direction of the objective standards described in ORS 374.311. (4) Content of an Access Management Strategy (a) The development of the access management methodology under section (3)(b) may include the following factors: (A) The level of direct highway access generally needed for properties based upon the types of uses allowed by the zoning and comprehensive plan designations, such as residential, commercial retail, or other designation, recognizing that direct access may increase the economic development opportunities for some uses located on abutting properties; (B) Effects of out of direction travel on the ability of customers to access various types of uses, recognizing differences between destination and pass-by uses; (C) Effects of changing existing connections and circulation patterns for existing developed properties; (D) Effects of traffic congestion or speed which could negatively affect the ability of customers to access adjacent properties safely; (E) Community support for the highway projects and economic development proposals in the planning area, as indicated by action of the governing body of the local government; (F) The highway classification and long term vision for the function of the highway as to the level of importance for providing mobility and movement of freight; (G) Existing and long term safety needs of all highway users; (H) Reducing vehicle conflict points where possible, particularly around critical intersections and interchange locations, to improve highway safety and operations consistent with the highway classification; (I) Safety and operations concerns under OAR 734-051-4020(3); (J) Safety planning tools, data and resources such as the department’s Safety Priority Index System, Analysis Procedures Manual, Roadway Departure Plan, Bicycle/Pedestrian Safety Plan, and Highway Safety Manual predictive models that identify areas of existing and future safety concerns. When considering safety factors as part of the methodology, the safety concerns and issues must be documented by a professional engineer as defined in OAR 734-051-1070. (b) The access management strategy shall include the locations of existing or planned intersecting county roads and city streets. The locations shall be consistent with the city and county transportation system plans or must be determined and agreed upon through collaboration among the department and the cities and counties affected by the project. (c) The access management strategy shall identify locations where the department intends to acquire all rights of access to a segment of the state highway as part of the project. (d) The access management strategy shall identify the locations and types of private approaches that are planned for the highway right of way. When determining the locations of private approaches, the department shall collaborate with affected real property owners, property lessees and businesses in the following manner: (A) The department shall provide written notice to all affected real property owners and, when possible, property lessees and business operators. The department’s notice will inform the parties that, based on application of the access management methodology, it may be necessary to relocate, modify, or remove one or more approaches to their property. The department notice shall invite the affected real property owners, lessees and business operators to meet with the department to review the application of the methodology to the approaches to their property. (B) If an affected real property owner, property lessee or business operator accepts the invitation to meet with the department, then the department shall meet with the party(ies) to explore options for addressing the application of the methodology to their property. (C) After meeting with the affected real property owner, property lessees or business operators the department shall provide written notice of the final decision regarding the location, modification or closure of the approaches to their property. The department’s notice will explain the property owner’s options for appeal of the department’s decision, under OAR 734-051-3080 through 734-051-3110. Only an affected real property owner may appeal the department’s final decision to modify, mitigate, or close an approach to their property. (5) Public Involvement Process. The department shall provide a public involvement process for cities, counties, highway users, real property owners, property lessees, and business operators affected by a modernization or highway improvement project to assist with: (a) Identifying deficiencies of highway segments impacted by the project; (b) Establishing the long-term vision for the highway segments that are part of the project to guide the scope and design of improvements for the project; (c) Establishing the access management methodology by which private connections will be considered for modification, relocation or closure; and (d) Establishing locations where the department proposes to acquire all rights of access to a segment of the state highway as part of the project. (6) Request for Review of the Access Management Methodology (a) The department shall provide written notice to all affected real property owners at least twenty-one (21) calendar days prior to taking action to finalize the access management methodology for a highway project. (b) Affected real property owners may make a written request for a review of the access management methodology prior to the department finalizing it, through either of the following: (A) A collaborative discussion under section (7) of this rule; or (B) An Access Management Dispute Review Board under section (8) of this rule. (c) Affected real property owners may request a review of the Access Management Methodology not later than twenty-one (21) calendar days following the date of the department notice under (a) of this section. Only an affected real property owner may request a review of the Methodology. The request for review must be made in writing and state whether the request is for a review through a collaborative discussion under Section (7) or an Access Management Dispute Review Board under Section (8). (d) An affected real property owner who requests a review of an access management methodology by collaborative discussion may also request a review by an Access Management Dispute Review Board after completion of the collaborative discussion. The request for review by an Access Management Dispute Review Board must be made not later than twenty-one (21) calendar days after the date of the final decision issued by the region manager following the completion of the collaborative discussion under section (7) of this rule. (7) Collaborative Discussion Process (a) If an affected real property owner requests a collaborative discussion to review the access management methodology, the collaborative discussion shall be conducted within forty five (45) calendar days from the date of written request from the affected real property owner(s), unless the department and affected real property owner(s) agree to a time extension in writing. (b) The region manager may include any department staff that he or she finds appropriate or necessary in the collaborative discussion process. In addition, the region manager shall invite local government representatives, and may include other facility users, economic development representatives or other parties which the region manager believes will contribute to finding appropriate solutions. The collaborative discussion shall be conducted under the alternative dispute resolution model in ORS 183.502, unless a different process is agreed upon by the department and the affected real property owner(s). (c) The region manager shall consider the information presented as part of the collaborative discussion and make the final decision. Within twenty-one (21) calendar days following the completion of the collaborative discussion, the region manager shall notify the property owner(s) in writing of the final decision to: (A) Modify the access management methodology; or (B) Finalize the access management methodology without modifications. (8) Access Management Dispute Review Board Process (a) The actions and recommendations of the Access Management Dispute Review Board are not land use decisions, as defined in ORS 197.015, and may not be appealed to the Land Use Board of Appeals. (b) Where more than one affected real property owner with the same or similar concerns requests review of the access management methodology by an Access Management Dispute Review Board, the department may consolidate the reviews. (c) The Access Management Dispute Review Board shall include the following: (A) The director, or a designee of the director, who is familiar with the location of the project; (B) A representative of the local jurisdiction for which the state highway is located; (C) An independent professional engineer with education or experience in traffic engineering as defined in OAR 820-040-0030; and (D) A representative from the economic or business sector. (d) The Access Management Dispute Review Board shall be conducted not later than forty-five (45) calendar days from the date of written request from the affected real property owner(s), unless the department and affected real property owner(s) agree to a time extension in writing. The Access Management Dispute Review Board shall make its recommendation to the director not later than fourteen (14) calendar days following the conclusion of its deliberations. (9) Director Decisions Based on the Recommendations of the Access Management Dispute Review Board (a) The director shall consider the recommendations of the Access Management Dispute Review Board and make the final decision. The director shall notify in writing all parties participating in the review of the final decision to either: (A) Modify the access management methodology; or (B) Finalize the access management methodology without modifications. (b) The director’s decision under Section (1) of this rule shall be issued not later than twenty-one (21) calendar days after receiving the recommendation of the Access Management Dispute Review Board.