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Oregon State Archives

Oregon Bulletin

February 1, 2012

Department of Transportation,
Highway Division
Chapter 734

Rule Caption: Update of Oregon Coordinate Systems.

Adm. Order No.: HWD 13-2011

Filed with Sec. of State: 12-22-2011

Certified to be Effective: 1-1-12

Notice Publication Date: 11-1-2011

Rules Adopted: 734-005-0005, 734-005-0010, 734-005-0015

Subject: Chapter 179 OL 2011 requires the Department to develop a Rule pertaining to the Oregon Coordinate System. The bill effectively moves all definitions of the existing Oregon State Plane Coordinate System from ORS Chapter 93 to an Oregon Administrative Rule (to be created by ODOT). In addition, all definitions for the new Oregon Coordinate Reference System will be added to the new OAR. Sections of ORS 93, 209, and 390 will be amended to point to the new location of these definitions.

Rules Coordinator: Lauri Kunze—(503) 986-3171

734-005-0005

Purpose

The purpose of this administrative rule is to define the Oregon Coordinate System, consisting of three mapping projection coordinate systems that are authorized for use in the State of Oregon.

Stat. Auth.: ORS 184.616, 184.619, Ch.179 OL 2011

Stats. Implemented: ORS 209.130, 209.155, 209.250, 390.770, Ch.179 OL 2011

Hist. : HWD 13-2011, f. 12-22-11, cert. ef. 1-1-12

734-005-0010

Oregon Coordinate Systems

(1) The Oregon State Plane Coordinate System of 1927 consists of two zones of mapping projections defined by the National Geodetic Survey of the National Ocean Service, one for the Oregon North Zone and one for the Oregon South Zone.

(2) The Oregon State Plane Coordinate System of 1983 consists of two zones of mapping projections defined by the National Geodetic Survey of the National Ocean Service, one for the Oregon North Zone and one for the Oregon South Zone.

(3) The Oregon Coordinate Reference System consists of multiple zones developed by an Oregon Department of Transportation committee of private and public land surveying, geographic information system, and academic professionals to define a system of low distortion mapping projections wherein distances computed between points on the grid plane will represent the distances measured between the same points on the ground within published zone tolerances.

Stat. Auth.: ORS 184.616, 184.619, Ch.179 OL 2011

Stats. Implemented: ORS 209.130, 209.155, 209.250, 390.770, Ch.179 OL 2011

Hist. : HWD 13-2011, f. 12-22-11, cert. ef. 1-1-12

734-005-0015

Coordinate System Parameters

(1) Oregon State Plane Coordinate System Of 1927

(a) North Zone: [Table not included. See ED. NOTE.]

(b) South Zone: [Table not included. See ED. NOTE.]

(2) Oregon State Plane Coordinate System Of 1983

(a) North Zone; [Table not included. See ED. NOTE.]

(b) South Zone: [Table not included. See ED. NOTE.]

(3) Oregon Coordinate Reference System Zones

(a) Baker Zone: [Table not included. See ED. NOTE.]

(b) Bend-Klamath Falls Zone: [Table not included. See ED. NOTE.]

(d) Bend-Vale Zone: [Table not included. See ED. NOTE.]

(e) Canyonville-Grants Pass Zone: [Table not included. See ED. NOTE.]

(f) Columbia River East Zone: [Table not included. See ED. NOTE.]

(g) Columbia River West Zone: [Table not included. See ED. NOTE.]

(h) Cottage Grove-Canyonville Zone:[Table not included. See ED. NOTE.]

(i) Dufur-Madras Zone: [Table not included. See ED. NOTE.]

(j) Eugene Zone: [Table not included. See ED. NOTE.]

(k) Grants Pass-Ashland Zone: [Table not included. See ED. NOTE.]

(L) Gresham-Warm Springs Zone: [Table not included. See ED. NOTE.]

(m) La Grande Zone: [Table not included. See ED. NOTE.]

(n) Ontario Zone: [Table not included. See ED. NOTE.]

(o) Oregon Coast Zone: [Table not included. See ED. NOTE.]

(p) Pendleton Zone: [Table not included. See ED. NOTE.]

(q) Pendleton-La Grande Zone: [Table not included. See ED. NOTE.]

(r) Portland Zone: [Table not included. See ED. NOTE.]

(s) Salem Zone: [Table not included. See ED. NOTE.]

(t) Sweet Home-Sisters Zone: [Table not included. See ED. NOTE.]

[ED. NOTE: Tables referenced are available from the agency.]

Stat. Auth.: ORS 184.616, 184.619, Ch.179 OL 2011

Stats. Implemented: ORS 209.130, 209.155, 209.250, 390.770, Ch.179 OL 2011

Hist. : HWD 13-2011, f. 12-22-11, cert. ef. 1-1-12

Rule Caption: Traffic Control Devices; Authority.

Adm. Order No.: HWD 14-2011

Filed with Sec. of State: 12-22-2011

Certified to be Effective: 12-22-11

Notice Publication Date: 7-1-2011

Rules Amended: 734-020-0005

Rules Repealed: 734-020-0055

Subject: The amendment of OAR 734-020-0005 adopts the 2009 Edition of the Manual on Uniform Traffic Control Devices, Oregon Supplement to the Manual on Uniform Traffic Control Devices, and the Oregon Temporary Traffic Control Handbook as standards for traffic control devices in Oregon in accordance with ORS 810.200. The amended rule complies with federal requirements set forth in Title 23, United States Code, Section 109(d) and Title 23, Code of Federal Regulations, Part 655.603, which requires states to adopt the 2009 Edition of the Manual on Uniform Traffic Control Devices and any supplements within two years of issuance.

The amendment also recognizes the Traffic Control Devices Committee as the official advisory body to the State Traffic Engineer on uniform standards for traffic control devices in this state, and repeals OAR 734-020-0055 because it is covered in the referenced documents of OAR 734-020-0005.

Rules Coordinator: Lauri Kunze—(503) 986-3171

734-020-0005

Traffic Control Devices

(1) Manual on Uniform Traffic Control Devices:

(a) In accordance with ORS 810.200, the 2009 Edition of the Manual on Uniform Traffic Control Devices dated December 2009 (U.S. Department of Transportation, Federal Highway Administration) is hereby adopted by reference as the manual and specifications of uniform standards for traffic control devices for use upon highways within this state.

(b) The Oregon Supplement to the Manual on Uniform Traffic Control Devices dated December 2011 is hereby adopted by reference as a register of deviations to the 2009 Edition of the Manual on Uniform Traffic Control Devices.

(c) The Oregon Temporary Traffic Control Handbook dated December 2011 is hereby adopted by reference as a standard for temporary traffic control for operations of three days or less.

(2) Traffic Control Devices Committee

(a) The Traffic Control Devices Committee is created to serve as an advisory body to the State Traffic Engineer on uniform standards for traffic control devices in this state. The committee shall consist of the following persons:

(A) The State Traffic Engineer of the Department of Transportation;

(B) A State Region Traffic Manager appointed by the Department of Transportation;

(D) Three City Traffic Engineers appointed by the League of Oregon Cities;

(E) Three County Traffic Engineers appointed by the Association of Oregon Counties; and

(F) A Transportation Engineer appointed by the Oregon Section of the Institute of Transportation Engineers;

(b) Committee members serve a maximum three-year term and may be re-appointed to serve an additional three-year term.

(d) A Chair and Vice-Chair shall be elected by the Committee to serve for the calendar year. The Chair shall prepare the agenda and moderate the meetings. The Vice-Chair shall preside in the absence of the Chair. If both are absent, a temporary Chair shall be chosen by the Committee at the meeting.

(e) The State Traffic Engineer shall serve as Secretary to the Committee assisting the Chair in preparing the agenda, publishing an agenda prior to each meeting, maintaining Committee files, and publishing minutes of meetings.

(f) The Committee shall meet every other month and at such additional times as designated by the Chair or as requested by six or more members of the Committee.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 184.616, 184.619, 366.205, 810.200 & 810.210

Stats. Implemented: ORS 810.200 & 810.210

Hist.: HC 1270, f. & ef. 1-18-72; HC 1277, f. & ef. 3-3-72; 1 OTC 80, f. & ef. 12-27-76; 1 OTC 7-1978, f. & ef. 4-27-78; 1 OTC 15-1979(Temp), f. & ef. 7-18-79; 1 OTC 25-1979, f. & ef. 10-30-79; 1 OTC 16-1980, f. & ef. 9-18-80; 1 OTC 22-1980, f. & ef. 11-26-80; 1 OTC 23-1980, f. & ef. 11-26-80; 2HD 9-1983(Temp), f. & ef. 4-20-83; 2HD 16-1983, f. & ef. 9-23-83; 2HD 9-1984(Temp), f. & ef. 10-4-84; 2HD 1-1985, f. & ef. 3-29-85; 2HD 3-1985, f. & ef. 9-13-85; 2HD 1-1986, f. & ef. 2-14-86; 2HD 6-1986(Temp), f. & ef. 7-29-86; HWY 1-1987, f. & ef. 1-9-87; HWY 2-1988(Temp), f. & cert. ef. 5-27-88; HWY 7-1988, f. & cert. ef. 12-2-88; HWY 2-1990(Temp), f. & cert. ef. 2-1-90; HWY 10-1990, f. & cert. ef. 6-29-90; TO 3-2002, f. & cert. ef. 4-15-02; HWD 6-2005, f. & cert. ef. 7-22-05; HWD 10-2005(Temp), f. & cert. ef. 12-14-05 thru 6-11-06; HWD 4-2006, f. & cert. ef. 5-26-06; HWD 14-2011, f. & cert. ef. 12-22-11

Rule Caption: Roadside Memorial Program.

Adm. Order No.: HWD 15-2011

Filed with Sec. of State: 12-22-2011

Certified to be Effective: 1-1-12

Notice Publication Date: 11-1-2011

Rules Adopted: 734-026-0010, 734-026-0020, 734-026-0030, 734-026-0040, 734-026-0045

Subject: ODOT has adopted these new rules to implement HB 3039 enacted by the 76th Oregon Legislative Assembly. The bill requires ODOT to erect and maintain roadside memorial signs that commemorate a police officer killed in the line of duty if the Legislative Assembly adopts a concurrent resolution that recognizes the police officer killed in the line of duty and fees are paid to cover the costs of erecting, maintaining and removing the signs. The bill also requires ODOT to establish by rule the fees to be collected and the design standards for such signs.

Rules Coordinator: Lauri Kunze—(503) 986-3171

734-026-0010

Purpose and Scope

The purpose of the Roadside Memorial Sign program is to provide an opportunity for citizens of the State of Oregon, through individuals or organizations identified as “Applicant” in Division 26 rules, to commemorate police officers killed in the line of duty with a sign installed along the State Highway System in accordance with Chapter 668, OL 2011, and to request a preferred location for such sign.

Stat. Auth.: ORS 184.616, 184.619, Ch. 668, OL 2011

Stats. Implemented: Ch. 668, OL 2011

Hist.: HWD 15-2011, f. 12-22-11, cert. ef. 1-1-12

734-026-0020

Definitions

As used in Division 26 rules, the following definitions shall apply:

(1) “Applicant” means the individual or organization seeking to commemorate a police officer killed in the line of duty, and named in and signing the application.

(2) “Department” means the Oregon Department of Transportation.

(3) “MUTCD” means the Manual on Uniform Traffic Control Devices as adopted in OAR 734-020-0005.

(4) “Region Traffic Engineer” means a professional engineer employed by the Department who by training and experience has comprehensive knowledge of the Department’s traffic engineering standards, policies, and procedures.

(5) “Roadside Memorial Sign” means a sign including the name of the police officer killed in the line of duty and complying with requirements of the MUTCD.

(6) “State Highway System” means the public way for vehicular travel that is under the jurisdiction of the Department. It also includes medians, highway shoulders, improvements appurtenant to the highway, such as support or tunnel structures, bicycle ways or sidewalks, and right of way used for the operation of the roadway.

(7) “State Traffic Engineer” means a professional engineer, or designated representative, employed by the Department in charge of the Department’s traffic engineering standards, policies, and procedures.

Stat. Auth.: ORS 184.616, 184.619, Ch. 668, OL 2011

Stats. Implemented: Ch. 668, OL 2011

Hist.: HWD 15-2011, f. 12-22-11, cert. ef. 1-1-12

734-026-0030

General Requirements

(1) The Applicant shall submit a written request to the State Traffic Engineer containing the following information:

(a) Name, address, and telephone number of the Applicant;

(b) A brief description of the concurrent resolution adopted by the Legislative Assembly recognizing the police officer killed in the line of duty;

(c) The preferred location on the State Highway System for a Roadside Memorial Sign to commemorate the police officer killed in the line of duty;

(d) Payment of the fee specified in OAR 734-026-0045.

(2) The Applicant, if the request meets the requirements of Chapter 668, OL 2011 and Division 26, shall be granted placement of a single Roadside Memorial Sign on the State Highway System.

Stat. Auth.: ORS 184.616, 184.619, Ch. 668, OL 2011

Stats. Implemented: Ch. 668, OL 2011

Hist.: HWD 15-2011, f. 12-22-11, cert. ef. 1-1-12

734-026-0040

Specific Requirements

(1) The Department shall install Roadside Memorial Signs based on a standard design maintained by the Department that conforms to the requirements in the MUTCD.

(2) Roadside Memorial Signs shall not be installed on ramps, bridges, or urban freeways on the State Highway System.

(3) Roadside Memorial Signs shall be mounted on only one side of a support post, facing oncoming traffic, and only on the side of the road nearest the lane of that oncoming traffic.

(4) The Region Traffic Engineer shall investigate the location requested by the Applicant and make a recommendation to the State Traffic Engineer regarding sign placement based on sign priority and spacing requirements in accordance with the MUTCD. If the location requested by the Applicant does not meet MUTCD requirements, the Region Traffic Engineer may recommend an alternate location based upon an engineering investigation.

(5) The State Traffic Engineer shall determine the location of all Roadside Memorial Signs based upon the recommendation of the Region Traffic Engineer and approve a request by an Applicant that meets all the requirements in Division 26.

Stat. Auth.: ORS 184.616, 184.619, Ch. 668, OL 2011

Stats. Implemented: Ch. 668, OL 2011

Hist.: HWD 15-2011, f. 12-22-11, cert. ef. 1-1-12

734-026-0045

Fee for Roadside Memorial Signs

(1) In accordance with Chapter 668, OL 2011, a fee of $600 shall be submitted to the Department with the application to cover the direct and indirect expenses associated with erecting, maintaining and removing a Roadside Memorial Sign.

(2) Roadside Memorial Signs shall remain in place for a period of ten years or until such time that the sign becomes damaged or is no longer in serviceable condition. The Department shall replace a Roadside Memorial Sign that is damaged or is no longer in serviceable condition if the Applicant pays the fee specified in section (1) to cover the cost of replacing the sign. Replaced Roadside Memorial Signs shall remain in place for a period of ten years or until such time that the sign becomes damaged or is no longer in serviceable condition.

(3) The Department may remove a Roadside Memorial Sign that becomes damaged, is no longer in serviceable condition, or has been in place for a period of ten years.

(4) The Department may move and relocate a Roadside Memorial Sign if the Department determines such relocation is necessary for highway or other transportation purposes.

Stat. Auth.: ORS 184.616, 184.619, Ch. 668, OL 2011

Stats. Implemented: Ch. 668, OL 2011

Hist.: HWD 15-2011, f. 12-22-11, cert. ef. 1-1-12

Rule Caption: Adoption of Temporary Access Management Rules to Conform to 2011 ORS Revisions made by SB 264.

Adm. Order No.: HWD 16-2011(Temp)

Filed with Sec. of State: 12-22-2011

Certified to be Effective: 1-1-12 thru 6-29-12

Notice Publication Date:

Rules Adopted: 734-051-1010, 734-051-1020, 734-051-1030, 734-051-1050, 734-051-1060, 734-051-1070, 734-051-2010, 734-051-2020, 734-051-2030, 734-051-3010, 734-051-3020, 734-051-3030, 734-051-3040, 734-051-3050, 734-051-3060, 734-051-3070, 734-051-3080, 734-051-3090, 734-051-3100, 734-051-3110, 734-051-4010, 734-051-4020, 734-051-4030, 734-051-4040, 734-051-4050, 734-051-5010, 734-051-5020, 734-051-5030, 734-051-5040, 734-051-5050, 734-051-5060, 734-051-5070, 734-051-5080, 734-051-5090, 734-051-5100, 734-051-5110, 734-051-5120, 734-051-6010, 734-051-6020, 734-051-6030, 734-051-6040, 734-051-6050, 734-051-6060, 734-051-6070, 734-051-7010

Rules Suspended: 734-051-0010, 734-051-0020, 734-051-0035, 734-051-0040, 734-051-0045, 734-051-0070, 734-051-0080, 734-051-0085, 734-051-0095, 734-051-0105, 734-051-0115, 734-051-0125, 734-051-0135, 734-051-0145, 734-051-0155, 734-051-0165, 734-051-0175, 734-051-0185, 734-051-0195, 734-051-0205, 734-051-0215, 734-051-0225, 734-051-0245, 734-051-0255, 734-051-0265, 734-051-0275, 734-051-0285, 734-051-0295, 734-051-0305, 734-051-0315, 734-051-0325, 734-051-0335, 734-051-0345, 734-051-0355, 734-051-0500, 734-051-0510, 734-051-0520, 734-051-0530, 734-051-0540, 734-051-0550, 734-051-0560

Subject: The 2011 Oregon Legislative Assembly adopted Senate Bill 264 which substantially overhauled the statutory authorization for the Oregon Department of Transportation (ODOT) highway access management program. The Act replaced a very general framework for control of highway access with a much more specific and technical framework. It also specified detailed and substantially different evaluation standards for approval and denial of highway access permits compared to what ODOT had in place. The changes in ORS 374.305 et. seq. are intended to provide more clear and objective standards for determining whether any particular property can receive a highway approach permit, thus improving property development processes in Oregon.

The new rules will immediately provide needed detail to staff and applicants about how the new procedures and criteria will be administered.

Rules Coordinator: Lauri Kunze—(503) 986-3171

734-051-0010

Authority for Rules

Division 51 rules are adopted under the Director’s authority contained in ORS 374.310(1).

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974 OL 1999, Ch. 371, OL 2003

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0020

Purpose and Applicability of Rules

(1) The purpose of division 51 rules is to provide a safe and efficient transportation system through the preservation of public safety, the improvement and development of transportation facilities, the protection of highway traffic from the hazards of unrestricted and unregulated entry from adjacent property, and the elimination of hazards due to highway grade intersections. These rules establish procedures and criteria used by the Department to govern highway approaches, access control, spacing standards, medians and restriction of turning movements in compliance with statewide planning goals and in a manner compatible with acknowledged comprehensive plans and consistent with Oregon Revised Statutes (ORS), Oregon Administrative Rules (OAR), and the 1999 Oregon Highway Plan (OHP).

(2) The 1999 Oregon Highway Plan dated March 18, 1999 and all amendments approved by the Oregon Transportation Commission as of the adoption of this rule are hereby adopted by reference as the policy framework and investment priorities for implementing access management.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312 & 374.345

Stats. Implemented: ORS 374.305 - 374.350 & 374.990

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0030; HWD 2-2007, f. & cert. ef. 1-26-07; HWD 8-2010(Temp), f. & cert. ef. 7-30-10 thru 1-21-11; HWD 1-2011, f. & cert. ef. 1-19-11; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0035

Administration of Rules

(1) Approaches in existence and applications filed after March 1, 2004 are governed by these rules.

(2) Division 51 rules do not affect existing rights of owners of grandfathered approaches, except where these rules specifically state their application to grandfathered approaches, as in OAR 734-051-0045, Change of Use of an Approach. An approach no longer qualifies as grandfathered once the Department issues a Permit to Operate under division 51 rules or the Department acquires access control, as defined in these rules.

(3) Consistent with ORS 374.312 the Department and local governments may enter into intergovernmental agreements allowing local governments to process applications and issue Construction Permits and Permits to Operate for private approaches to regional and district highways, including highways routed over city streets where the local government owns the right of way.

(4) Approval of a property for a particular use is the responsibility of city, county, or other governmental agencies, and an applicant must obtain appropriate approval from city, county, or other governmental agencies having authority to regulate land use. Approval of an application or issuance of a Construction Permit or a Permit to Operate is not a finding of compliance with statewide planning goals or an acknowledged comprehensive plan.

(5) Any notice or other communication by the Department is sufficient if mailed by first class mail to the person at the address on the application or where property tax statements for the property are sent. Any notice of an appealable decision is sufficient if sent by certified mail to the person at the address on the application or where property tax statements for the property are sent. The notice date is the date of mailing.

(6) Pursuant to ORS 374.310(3), the division 51 rules may not be exercised so as to deny any property adjoining the highway reasonable access and 374.312(1)(c) requires adoption of rules establishing criteria for reasonable access consistent with 374.310(3) criteria. These rules address “reasonable access” solely in the context of the issuance of approach permits. “Reasonable access” under these rules does not affect whether access may be reasonable for other purposes or under other reviews.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312 & 374.345

Stats. Implemented: ORS 374.305 - 347.350 & 374.990

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0050 & 734-051-0060; HWD 2-2007, f. & cert. ef. 1-26-07; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0040

Definitions

The following definitions apply to division 51 rules:

(1) “1999 Oregon Highway Plan” means the 1999 Oregon Highway Plan and all amendments approved by the Oregon Transportation Commission as adopted by OAR 734-051-0020.

(2) “Access Control” means no right of access exists between a property abutting the highway and the highway. The right of access may have been acquired by the Department or eliminated by law.

(3) “Access Management Strategy” means a project delivery strategy that identifies the location and type of approaches and other necessary improvements that will occur primarily within the highway right of way and that is intended to improve current conditions of the section of highway by moving in the direction of the access management spacing standards.

(4) “Access Management Plan” means a plan for managing a designated section of highway or the influence area of an interchange to maintain and improve highway performance and safety. It is intended to improve current and future conditions on a section of highway or interchange by moving in the direction of the access management spacing standards and may address local street connectivity, local street improvements and local plans and land use regulations. An Access Management Plan may be developed independent of or in conjunction with a highway or interchange project; however, an Access Management Plan is not a highway or interchange project.

(5) “Access Mitigation Proposal” means a proposal offered by an applicant that identifies the location and type of approaches and necessary improvements to the highway and that is intended to improve current conditions of the section of highway by moving in the direction of the access management spacing standards by combining or removing approaches resulting in a net reduction of approaches to that section of highway. An Access Mitigation Proposal must be approved by the Department, agreed to by all affected property owners, and real property interests must be recorded.

(6) “Alternate Access” means the physical existence of other means to access a property than the proposed approach, such as an existing public right of way, another location on the subject state highway, an easement across adjoining property, a different highway, a service road, or an alley, including singularly or as a joint approach, but without a conclusive determination that the alternate access is “reasonable” as defined in section (51) of this rule.

(7) “Appealable decision” means a decision by the Department that may be appealed through a Region Review as set forth in OAR 734-051-0345 or a Contested Case Hearing as set forth in OAR 734-051-0355. An appealable decision includes a decision to deny an application or to deny a deviation or approval of an application with mitigation measures.

(8) “Applicant” means a person, firm or corporation, or other legal entity that applies for an approach or deviation including an owner or lessee, or an option holder of a property abutting the highway, or their designated agent.

(9) “Application” means a completed form Application for State Highway Approach including any required documentation and attachments necessary for the Department to determine if the application can be deemed complete.

(10) “Approach” means a legally constructed, approach road or private road crossing, recognized by the Department as grandfathered or existing under a valid Permit to Operate.

(11) “Approach road” means a legally constructed, public or private connection, providing vehicular access to and/or from a highway and an adjoining property.

(12) “Classification of highways” means the Department’s state highway classifications defined in the 1999 Oregon Highway Plan.

(13) “Commission” means the Oregon Transportation Commission.

(14) “Construction Permit” means a Permit to Construct a State Highway Approach including all attachments, required signatures, and conditions and terms.

(15) “Crash history” means at least the three most recent years of crash data recorded by the Department’s Crash Analysis and Reporting Unit.

(16) “Day” means calendar day, unless specifically stated otherwise.

(17) “Deemed complete” means an application and all required supplemental documentation necessary for the Department to review and assess the application and determine if a Construction Permit or a Permit to Operate may be issued.

(18) “Department” or “ODOT” means the Oregon Department of Transportation.

(19) “Deviation” means a departure from the access management spacing standards.

(20) “Division 51” means Oregon Administrative Rules (OAR) 734-051-0010 through 734-051-0560 and Tables 1, 2, 3, 4, 5, 6 and 7 adopted and made a part of division 51 rules and Figures 1, 2, 3 and 4 adopted and made a part of division 51 rules.

(21) “Double-Frontage Property” means a property with a right of access to more than one state highway.

(22) “Executive Deputy Director” means the Executive Deputy Director for Highway Division of the Oregon Department of Transportation.

(23) “Expressway” means a segment of highway defined in the 1999 Oregon Highway Plan and classified by the Oregon Transportation Commission.

(24) “Fair Market Value” means the amount in cash, or on terms reasonably equivalent to cash, for which in all probability the property would be sold by a knowledgeable owner willing but not obligated to sell to a knowledgeable purchaser who desired but is not obligated to buy.

(25) “Freeway or Expressway ramp” means all types, arrangements, and sizes of turning roadways for right or left turning vehicles that connect two or more legs at an interchange and the components of a ramp area terminal at each leg and a connection road, usually with some curvature and on a grade.

(26) “Grandfathered approach” means a legally constructed approach existing prior to 1949. A property owner has the burden to prove an approach is grandfathered based upon existence prior to 1949. For purposes of this Division, grandfathered approaches also include approaches presumed in compliance as set forth in OAR 734-051-0285(7) and approaches intended to remain open that were improved in conjunction with a Department project prior to April 1, 2000, as set forth in OAR 734-051-0285(9).

(27) “Grant of Access” means the conveyance or evidence of the conveyance from the Department of a specific right of access at a location where an abutting property currently does not have that specific right of access.

(28) “Highway mobility standards” mean the established standards for maintaining mobility as defined in the 1999 Oregon Highway Plan.

(29) “Highway segment designations” mean the four categories of designations, Special Transportation Area, Commercial Centers, Urban Business Areas, and Urban, defined in the 1999 Oregon Highway Plan.

(30) “Indenture of Access” means a deeded conveyance that changes the location, width, or use restrictions of an existing reservation of access.

(31) “Infill” means development of vacant or remnant land passed over by previous development and that is consistent with zoning. Infill occurs in urban areas. It may also occur in rural areas on commercial or industrial zoned land where the land has been developed into an urban block pattern including a local street network, and the posted highway speed is at or below 45 miles per hour.

(32) “Influence area of an interchange” means the area 1320 feet from an interchange ramp terminal measured on the crossroad away from the mainline.

(33) “Interchange” means a system of interconnecting roadways in conjunction with one or more grade separations that provides for the movement of traffic between two or more roadways or highways on different levels.

(34) “Interchange Area Management Plan” means a plan for managing a grade-separated interchange area to ensure safe and efficient operation between connecting roadways and to protect the functional integrity, operations, and safety of the interchange. An Interchange Area Management Plan may be developed independent of or in conjunction with an interchange project and may address local street connectivity, local street improvements and local plans and land use regulations. An Interchange Area Management Plan is not an interchange project.

(35) “Intersection” means an area where two or more highways or an approach and a highway join or cross at grade.

(36) “Land Use Action” means an action by a local government or special district concerning the adoption, amendment or application of the statewide planning goals, a comprehensive plan provision, or a land use regulation including zoning or subdivision codes.

(37) “Median” means the portion of the roadway separating opposing traffic streams.

(38) “Mitigation Measures” mean conditions, improvements, modifications, and restrictions set forth in OAR 734-051-0145 and required by the Department or initiated by an applicant for approval of a deviation or an application.

(39) “Move in the direction of” means that changes in the approach(es) to a property abutting the highway would bring a site closer to conformance with existing highway standards including where existing approaches to the highway or expressway are combined or eliminated resulting in a net reduction in the number of approaches to the highway or expressway, improvements in spacing of private approaches or public approaches, or improvements to intersection sight distance.

(40) “Peak hour” means the highest one-hour volume observed on an urban roadway during a typical or average week or the 30th highest hourly traffic volume on a rural roadway typically observed during a year.

(41) “Permit to Construct” means a Permit to Construct a State Highway Approach including all attachments, required signatures, conditions and terms, and performance bonds or insurance.

(42) “Permit to Operate” means a Permit to Operate, Maintain and Use a State Highway Approach including all required signatures and attachments, and conditions and terms. A Permit to Operate is not required for a public approach. However the Department may issue a Permit to Operate for a public approach upon agreement with the governing city or county.

(43) “Permitee” means a person, firm or corporation, or other entity holding a valid Permit to Operate including the owner or lessee of the property abutting the highway or their designated agent.

(44) “Permitted approach” means a legally constructed private or public approach existing under a valid Permit to Operate.

(45) “Planned” means not constructed but adopted into a comprehensive plan or transportation system plan in accordance with administrative procedures of OAR 660-012 and ORS Chapter 197.

(46) “Private approach” means an approach serving one or more properties and is not a public approach as defined in section (50) of this rule.

(47) “Private road crossing” means a legally constructed, privately owned road designed for use by trucks which are prohibited by law from using state highways, county roads, or other public highways.

(48) “Professional Engineer” means a person registered and holding a valid certificate to practice engineering in the State of Oregon, as provided in ORS 672.002 through 672.325, with expertise in traffic engineering, as provided in OAR 820-040-0030.

(49) “Project Delivery” means the allocation of resources to plan and construct new highways or modify and improve existing highways.

(50) “Public approach” means an existing or planned city street or county road connection that provides vehicular access to the general public from a highway. An existing city street or county road connection must be under the authority of the city or county to be considered a public approach. A planned city street or county road must be consistent with 734-051-0040(45) and must be or come under the authority of the city or county to be considered a public approach.

(51) “Reasonable Access” means the ability to access a property in a manner that meets the criteria under ORS 374.310(3).

(52) “Redevelopment” means the act or process of changing existing development including replacement, remodeling, or reuse of existing structures to accommodate new development that is consistent with current zoning. Redevelopment occurs in urban areas. It may also occur in rural areas on commercial or industrial zoned land where the land has been developed into an urban block pattern including a local street network, and the posted highway speed is at or below 45 miles per hour.

(53) “Region Access Management Engineer” means a professional engineer employed by the Department who by training and experience has comprehensive knowledge of the Department’s access management rules, policies, and procedures, or as specified in an Intergovernmental Agreement delegating permitting authority as set forth in OAR 734-051-0035(3).

(54) “Region Manager” means the person in charge of one of the Department’s Transportation Regions or designated representative.

(55) “Reservation of Access” means a limitation of a common law right of access to a specific location where the Department has acquired access control subject to restrictions that are designated in a deed. A reservation of access may include a use restriction limiting the right of access to a specified use or restriction against a specified use. A use restriction included in a reservation of access does not restrict turning movements nor does the absence of a use restriction allow unrestricted turning movements. A reservation of access affords the right to apply for an approach but does not guarantee approval of an Application for State Highway Approach or the location of an approach.

(56) “Restricted Use Approach” means an approach that is intended to provide vehicular access for a specific use and for a limited volume of traffic. Such uses are determined by the Department and may include emergency services, government, and utility uses. A mitigation required as a part of approach permit approval or a condition on a construction permit does not by itself create a “restricted use approach.”

(57) “Right of access” means the right of ingress and egress to the roadway and includes a common law right of access, reservation of access, or grant of access.

(58) “Right of way” means real property or an interest in real property owned by the Department as defined in the 1999 Oregon Highway Plan.

(59) “Rural” means the area outside the urban growth boundary, the area outside a Special Transportation Area in an unincorporated community, or the area outside an Urban Unincorporated Community defined in OAR 660-022-0010(9).

(60) “Safety factors” include the factors identified in OAR 734-051-0080(8).

(61) “Signature” means the signature of the specific individual or an authorized officer of the corporation or partnership and must include the name of the corporation or partnership licensed as set forth in ORS 60.111, and which maintains a registered agent and registered office in this state.

(62) “Spacing Standards” mean Access Management Spacing Standards as set forth in OAR 734-051-0115 and specified in Tables 1, 2 and 3 adopted and made a part of division 51 rules and Access Management Spacing Standards for Approaches in an Interchange Area as set forth in OAR 734-051-0125 and specified in Tables 4, 5, 6 and 7 and Figures 1, 2, 3 and 4, adopted and made a part of division 51 rules.

(63) “Temporary approach” means an approach that is constructed, maintained, and operated for a specified period of time not exceeding two years, and removed at the end of that period of time.

(64) “Traffic Impact Study” means a report prepared by a professional engineer that analyzes existing and future roadway conditions resulting from the applicant’s development.

(65) “Trip” means a one-way vehicular movement that consists of a motor vehicle entering or exiting a property. A vehicle entering a property and later exiting that property has made two trips.

(66) “Urban” means the area within the urban growth boundary, within a Special Transportation Area of an unincorporated community, or within an Urban Unincorporated Community defined in OAR 660-022-0010(9).

(67) “Vehicle trips per day” means the total of all one-direction vehicle movements with either the origin or destination inside the study site that includes existing, primary, pass by, and diverted linked trips and is calculated in accordance with the procedures contained in the current edition of the Institute of Transportation Engineers (ITE) publications Trip Generation and Trip Generation Handbook. Adjustments to the standard rates in the ITE publications for mode split may be allowed if calculated in accordance with Transportation Planning Rule and the ITE procedures. Adjustments to the standard rates for multi-use internal site trips may be allowed if calculated in accordance with ITE procedures and if the internal trips do not add vehicle movements to the approaches to the highway.

(68) “Vehicular Access” means access by motorized vehicles to a property from a street, roadway, highway, easement, service road, or alley including singular or joint access.

(69) “Work Day” means Monday through Friday and excludes holidays.

[Publications: Publications referenced are available from the agency.]

[ED. NOTE: Tables & Figures referenced are available from the agency.]

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.313 & 374.345

Stats. Implemented: ORS 374.305 - 374.345 & 374.990

Hist.: 1 OTC 43, f. 11-26-74, ef. 12-1-74; 1 OTC 20-1980, f. & ef. 10-22-80; TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; Renumbered from 734-050-0010; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04; HWD 8-2005, f. & cert. ef. 9-16-05; HWD 2-2007, f. & cert. ef. 1-26-07; HWD 8-2010(Temp), f. & cert. ef. 7-30-10 thru 1-21-11; HWD 1-2011, f. & cert. ef. 1-19-11; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0045

Change of Use of an Approach

(1) This rule applies to private approaches existing under a valid Permit to Operate and private grandfathered approaches.

(2) As used in this rule -0045 “peak hour” of the site means the hour during which the highest volume of traffic enters and exits the property during a typical week.

(3) A change of use of an approach occurs, and an application must be submitted, when an action or event identified in subsection (a) of this section, results in an effect identified in subsection (b) of this section.

(a) The Department may review an approach at the time of an action such as:

(A) Zoning or plan amendment designation changes;

(B) Construction of new buildings;

(D) Division or consolidation of property boundaries;

(E) Changes in the character of traffic using the approach;

(F) Internal site circulation design or inter-parcel circulation changes; or

(G) Reestablishment of a property’s use after discontinuance for four years or more.

(b) An application must be submitted when an action in subsection (a) of this section may result in any of the following:

(A) The number of peak hour trips increases by 50 trips or more from that of the property’s prior use and the increase represents a 20 percent or greater increase in the number of peak hour trips from that of the property’s prior use.

(B) The number of trips on a typical day increases by 500 trips or more from that of the property’s prior use and the increase represents a 20 percent or greater increase in the number of trips on a typical day from that of the property’s prior use.

(D) The approach does not meet a stopping sight distance requirement (measured in feet) of 10 times the posted speed of the roadway (measured in miles per hour) or 10 times the 85th percentile speed of the roadway where the 85th percentile speed is higher or lower than the posted speed. The permittee may perform a study to determine if the 85th percentile speed is higher or lower than the posted speed. The sight distance measurement and the study to determine the 85th percentile speed shall be performed according to published Department procedures by or under the supervision of an engineer registered in the state of Oregon.

(E) The daily use of an approach increases by 10 or more vehicles with a gross vehicle weight rating of 26,000 pounds or greater.

(A) Field counts;

(B) Site observation;

(D) Field measurement;

(E) Crash history;

(F) Institute of Transportation Engineer Trip Generation Manual; or

(G) Information and studies provided by the local jurisdiction.

(d) Mitigation of the change of use of an approach shall be limited to addressing the identified safety or operational problems.

(4) The following actions do not constitute a change of use:

(a) Modifications in advertising, landscaping, general maintenance, or aesthetics not affecting internal or external traffic flow or safety; or

(b) Buildout or redevelopment of an approved site plan or multi-phased development within the parameters of a Traffic Impact Study that is less than five years old or where within parameters of the future year analysis of the Traffic Impact Study, whichever is greater, and that is certified by a Professional Engineer.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: 1 OTC 20-1980, f. & ef. 10-22-80; TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; Renumbered from 734-050-0065; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0110; HWD 8-2010(Temp), f. & cert. ef. 7-30-10 thru 1-21-11; HWD 1-2011, f. & cert. ef. 1-19-11; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0070

Application Procedure and Timelines

(1) The Department shall document decisions made under Division 51 rules with written findings and shall provide written notice to applicants:

(a) Written findings shall be provided to the applicant upon request;

(b) Materials submitted by the applicant become the property of the Department;

(c) The Region Manager may waive requirements for information and documentation required from an applicant depending on the nature of the application and on the sufficiency of other information available to the Department for its evaluation of an application;

(d) Where necessary to comply with the permitting criteria under Division 51 rules, approval of an application may be conditioned upon significant changes to a proposed site plan including relocation of buildings, parking, circulation, reduction of intensity of use, or variances from local jurisdictions; and

(e) Approval of an application may require mitigation measures set forth in OAR 734-051-0145.

(2) The Department, applicant, or local government may request a pre-application meeting to discuss the approach application process.

(3) An application is required:

(a) For a new private approach to a state highway;

(b) When a change of use occurs as set forth in OAR 734-051-0045;

(d) For a restricted use approach to a state highway.

(4) An application accompanied by a site plan must be submitted for each approach requested. All of the following apply to an application:

(a) The Department shall not accept an application for an approach to a freeway, a freeway ramp, or an expressway ramp, or where an approach would be aligned opposite a freeway or expressway ramp terminal.

(b) The Department shall require written evidence of concurrence by the owner where an applicant is not the property owner.

(c) The Department may refuse to accept an application that is incomplete or contains insufficient information to allow the Department to determine if supplemental documentation is required or otherwise determine that the application may be deemed complete.

(5) The Department shall determine if an application is deemed complete:

(a) Within 30 days of accepting an application when section (6) of this rule does not require supplemental documentation; or

(b) When the supplemental documentation is received and the Department determines that the supplemental documentation is sufficient to evaluate the application, if section (6) of this rule requires supplemental documentation.

(6) The Department may require supplemental documentation before an application is deemed complete, and the Region Manager:

(a) May conduct an on-site review to determine the need for supplemental documentation before an application is deemed complete. The on-site review area includes both sides of the highway in the vicinity of the proposed approach including:

(A) The site frontage;

(B) All approaches; and

(b) May meet with the applicant to discuss the supplemental documentation including definition and degree of specification;

(c) Shall notify an applicant, within 30 days of accepting an application, of the supplemental documentation necessary for an application to be deemed complete;

(d) Shall notify an applicant, within 30 days of accepting an application, that an application may not be deemed complete where no right of access exists; and

(A) An applicant may apply for an Application for a Grant of Access or Application for an Indenture of Access;

(B) An application for a Grant of Access or Application for an Indenture of Access must be submitted concurrently with an Application for State Highway Approach;

(i) To state highways and other public roads from property where the Department has access control; and

(ii) To state highways from property owned or controlled by cities or counties where the Department has access control where a public road connection is requested.

(D) Submittal of an Application for a Grant of Access or Application for an Indenture of Access stays the 120-day timeline in section (8) of this rule;

(E) The timeline for processing an Application for a Grant of Access and completing the appraisals and property transactions may be up to 365 days depending on the complexity of the request; and

(F) The timeline for processing an Application for an Indenture of Access may be up to 60 days depending on the complexity of the request.

(e) May require a Traffic Impact Study for:

(A) Proposed developments generating vehicle trips that equal or exceed 600 daily trips or 100 hourly trips; or

(B) Proposed zone changes or comprehensive plan changes;

(f) May require a Traffic Impact Study for proposed developments or land use actions where the on-site review indicates that operational or safety problems exist or are anticipated; and

(g) Shall notify the applicant that required supplemental documentation, including an application for a grant of access or indenture of access, must be submitted within 60 days of the date of notice of supplemental documentation or the application expires.

(7) All of the following apply when a Traffic Impact Study is required:

(a) A Professional Engineer employed by the Department shall determine the scope of the study and shall review and comment on the study.

(b) Future year analyses apply to both public and private approaches and include year of each phase opening and future year beyond build out, based on vehicle trips per day and type of land use action, but not greater than the year of planning horizon for transportation system plans or 15 years, whichever is greater.

(c) A Professional Engineer must prepare the study in accordance with methods and input parameters approved by the Department.

(d) The scope and detail of the study must be sufficient to allow the Department to evaluate the impact of the proposal and the need for roadway capacity, operational, and safety improvements resulting from the approach.

(e) The study must identify the data and the application of data in the analysis.

(f) The study may be sufficient to satisfy the requirements of this rule without being adequate to satisfy local government requirements or the Transportation Planning Rule.

(8) When necessary to comply with the permitting criteria of division 51 Rules the Department shall evaluate an application that is deemed complete and shall approve or deny that application within 120 days including a final order as set forth in OAR 734-051-0355:

(a) The final 60 days of the 120 days are reserved for the Contested Case Hearing process set forth in OAR 734-051-0355;

(b) The Department shall use division 51 and ORS Chapter 374 and may use other applicable statutes, administrative rules, or manuals to evaluate and act on an application;

(c) If an application is approved, the Department shall issue a Construction Permit or a Permit to Operate as set forth in sections (10) through (13) of this rule; and

(d) Denial of an application is an appealable decision.

(9) If approval of an approach requires a deviation from access management spacing standards or access management spacing standards for approaches in an interchange area, a Traffic Impact Study may be required and the Department may approve or deny the deviation as set forth in OAR 734-051-0135:

(a) Approval of a deviation may be conditioned upon changes to a proposed site plan including relocation of buildings, changes to parking or circulation, reduction of the intensity of use, or variances from local jurisdiction regulations; and

(b) Denial of a deviation from spacing standards is an appealable decision.

(10) If a land use action is pending, including an appeal of a final land use decision or a limited land use decision, for a property for which an application has been submitted, the application may be accepted and processed:

(a) Approval will be conditioned on the Department receiving notice of approval of the land use action shown on the application.

(b) A Construction Permit may be issued while the local land use action is pending. A deposit may be required, to be determined in the manner used for a Temporary Approach in OAR 734-051-0095(2), to ensure that the approach will be removed if the land use is not approved.

(c) A Permit to Operate shall not be issued until the applicant provides the Department with written proof of final land use decision.

(11) To obtain a Construction Permit an applicant must submit construction drawings and plans within 60 days of notice of approval of an application when use of the Department’s standard drawings is not appropriate. The Region Manager determines the acceptability of submitted construction plans. If plans are not submitted within the 60 days and no request for extension is received within that time, the approval will be void.

(12) The Department shall issue a Construction Permit as set forth in OAR 734-051-0175 upon approval of an application and approval of construction drawings and plans where required; and

(a) An approach approved by a Construction Permit must be constructed as required by OAR 734-051-0175 through 734-051-0245; and

(b) An applicant must have insurance, bonds, and deposits in place before construction begins and must provide 30 days written notice of cancellation or intent not to renew insurance coverage as set forth in OAR 734-051-0215.

(13) The Department shall issue a Permit to Operate as set forth in OAR 734-051-0245, except that a Permit to Operate is not required for a public approach under ORS 374.310.

(14) An applicant may request a Region Review of an appealable decision within 21 days of notice of that decision as set forth in OAR 734-051-0345:

(a) An applicant may request a collaborative discussion within the Region Review process; and

(b) The Region Review process stays the 120-day timeline for approval or denial of an application.

(c) An applicant may request a Contested Case Hearing following a Region Review and the hearing will be on the original decision.

(15) An applicant may request a Contested Case Hearing of an appealable decision within 21 days of notice of that decision, or within 21 days of notice of a Region Review decision, as set forth in OAR 734-051-0355.

(16) Division 51 timelines may be extended if the applicant and the Department agree in writing before the applicable deadline, as specified in these rules. Any agreement to extend a timeline shall include a new deadline date and shall state the reason for the extension. Applications for which an extension of time has been issued will expire on the deadline date specified in the extension letter if no new extension has been agreed to and the activities for which the deadline was extended have not been completed.

(17) An application will expire after 120 days of inactivity on the part of the applicant if the Department sends a reminder letter to notify the applicant that 90 days have passed with no activity, and advising that the application will expire in 30 days if the application continues to be inactive. Submittal of any information after the date of expiration will require a new application.

(18) A new public approach shall not be located on a freeway, a freeway ramp, or an expressway ramp. A new public approach that would be aligned opposite a freeway or expressway ramp must be included in an Interchange Area Management Plan or Access Management Plan, approved by the ODOT Chief Engineer and adopted by the Oregon Transportation Commission.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312 & 374.345

Stats. Implemented: ORS 374.305 - 374.350 & 374.990

Hist.: 1 OTC 43, f. 11-26-74, ef. 12-1-74; 1 OTC 20-1980, f. & ef. 10-22-80; 2HD 13-1981, f. & ef. 10-2-81; TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; Renumbered from 734-050-0015; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0090 & 734-051-0100; HWD 2-2007, f. & cert. ef. 1-26-07; HWD 8-2010(Temp), f. & cert. ef. 7-30-10 thru 1-21-11; HWD 1-2011, f. & cert. ef. 1-19-11; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0080

Criteria for Approving an Application for an Approach

(1) The following apply to all applications:

(a) Existence of a recorded easement does not by itself establish a right of access and does not guarantee the approval of an application or the location of an approach.

(b) If an application is for a double-frontage property the approach must be located on the lower classification highway except where the Region Access Management Engineer determines that an approach to the higher classification highway would better meet the approval criteria in sections (2) through (10) of this rule.

(c) Where a development includes multiple parcels, the development is evaluated in its entirety, regardless of the number of individual parcels or ownership contained within the development, and applications will not be accepted for individual parcels or ownership.

(2) For a private approach with no alternate access to the property the Region Manager shall approve an application if the applicant demonstrates that section (9) of this rule is met.

(3) For a private approach in a rural area and on a statewide, regional, or district highway or an expressway or within the influence area of an expressway interchange or freeway interchange, with alternate access to the property, the Region Manager shall approve an application if the applicant demonstrates that:

(a) Either:

(A) The alternate access cannot be made reasonable as set forth in section (7) of this rule; or

(B) The proposal is for infill or redevelopment and approval of the proposal will result in a net reduction of approaches on the highway or the net result improves safety for any remaining approaches; and

(b) Section (9) of this rule is met.

(4) For a private approach in an urban area and on a statewide, regional, or district highway or within the influence area of an expressway interchange or freeway interchange, with alternate access to the property, the Region Manager shall approve an application, even where the Department has evidence that the alternate access is reasonable, if the applicant provides substantial evidence that demonstrates that:

(a) The alternate access is not reasonable as set forth in section (7) of this rule; and

(b) Section (9) of this rule is met.

(5) For a private approach in an urban area and on a statewide, regional, or district highway or within the influence area of an expressway interchange or freeway interchange, with alternate access to the property, the Region Manager shall approve an application if the applicant demonstrates that:

(a) The alternate access is reasonable as set forth in section (7) of this rule; and

(b) Section (9) and section (10) of this rule are met.

(6) For a private approach in an urban area and on an expressway, with alternate access to the property, the Region Manager shall approve an application if the applicant demonstrates that:

(a) The alternate access cannot be made reasonable as set forth in section (7) of this rule, and section (9) and section (10) of this rule of this rule are met; or

(b) The approach provides an immediate and long-term benefit to the state highway system, as set forth in OAR 734-051-0085, regardless of any required safety or operations mitigation measures, and section (9) of this rule is met.

(7) Which approval criteria will be applied to an application (sections (2) through (6) of this rule) depends in part upon whether alternate access to the site is or can be made reasonable, which is determined based upon the following:

(a) The Department determines that alternate access to the property is sufficient to allow the authorized uses for the property identified in the acknowledged local comprehensive plan.

(b) The Department determines that the type, number, size and location of approaches are adequate to serve the volume and type of traffic reasonably anticipated to enter and exit the property, based on the planned uses for the property.

(A) Including where the applicant or the local jurisdiction commits proportional shares for the cost of removal or mitigation of geographic, safety, or physical restrictions on the property or local street network; and

(B) Neither a lack of commitment by a local government to share the cost of mitigation nor the cost of mitigation alone is determinative in evaluating whether the access is or could be made reasonable.

(d) Consideration of factors including:

(A) Legal restrictions;

(B) Geographic restrictions;

(D) Safety factors; and

(E) Physical considerations such as planned streets, roadway width, and weight and size restrictions.

(e) Where a significant difference exists between an existing and planned local road network, a phased method addressing access may be considered:

(A) Where a planned public street or road network cannot be provided at the time of development, an application may be approved with conditions requiring connection when such connection becomes available;

(B) The approach permit may be revoked and the approach removed, or the approach permit may be modified and mitigation required when the planned street or road network becomes available; and

(C) An agreement with the local government regarding the planned street or road network may be an intergovernmental agreement.

(8) For purposes of Division 51, safety factors include:

(a) Roadway character;

(b) Traffic character;

(d) Environmental character; and

(e) Operational character.

(9) As required by sections (2) through (6) of this rule an applicant must demonstrate, consistent with Division 51 rules, that:

(a) The approach is consistent with safety factors in section (8) of this rule;

(b) Spacing standards are met or a deviation is approved as set forth in OAR 734-051-0135; and

(c) The effect of the approach meets traffic operations standards, signals, or signal systems standards in OAR 734-020-0400 through 734-020-0500 and 734-051-0115 and 734-051-0125.

(10) As required by sections (5) and (6) of this rule the Department may require an applicant to demonstrate that:

(a) Highway mobility standards are met on state highways;

(b) The approach is consistent with an Access Mitigation Proposal, Access Management Strategy, or Access Management Plan for the segment of highway abutting the property, if applicable;

(c) The site plan shows that the site circulation does not require vehicles, once on site, to reenter the highway to access parking or other portions of the development; and

(d) More than one approach to the highway is necessary to accommodate traffic reasonably anticipated to the site if multiple approaches are requested.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 to 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04; HWD 8-2010(Temp), f. & cert. ef. 7-30-10 thru 1-21-11; HWD 1-2011, f. & cert. ef. 1-19-11; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0085

Benefit to the State Highway System

(1) For the purposes of this rule a benefit to the state highway system:

(a) Will be found only where an applicant demonstrates that an approach will provide an immediate and long-term benefit to the state highway system;

(b) Is evaluated for no less than 20 years;

(c) For an Application for a Grant of Access, must exceed any mitigation of impacts related to the development regarding safety and operations; and

(d) Is a determination requiring the professional judgment of a professional engineer employed by the Department.

(2) For an Application for State Highway Approach or for an Application for a Grant of Access the Department may determine a benefit to the state highway system exists if the requirements of subsections (a) and (b) of this section are met:

(a) The applicant demonstrates better management of access as a result of either controlling or combining approach locations, or eliminating existing or planned approaches by improving:

(A) Access management spacing standards;

(B) Public approach spacing; or

(b) The applicant demonstrates with no degradation of the criteria in paragraphs (A) through (E) of this subsection, that any of the following occur:

(A) Highway mobility standards improve.

(B) Safety improves on the section of highway where the approach is located.

(D) Operations in the general vicinity improve as a result of connectivity, traffic diversions, or other traffic engineering techniques.

(E) The applicant demonstrates that off-system connectivity improves and reduces demand to the state highway system without creating operational or safety problems elsewhere:

(i) Off-system connectivity must occur immediately; or

(ii) Off-system connectivity must be committed for construction as evidenced by the local government’s adopted Capital Improvement Plan.

(F) The Department determines that other circumstances result in a benefit to the state highway system.

(3) For an Application for State Highway Approach, for a private or public approach in an urban area and to an expressway, the Department may presume that a benefit to the state highway system exists if the requirements of subsection (a) of this section are met, or the requirements of subsections (b) and (c) of this section are met:

(a) Where a change of use occurs, approaches to the expressway are combined or eliminated resulting in a net reduction in the number of approaches to the expressway, and the applicant demonstrates an improvement of:

(A) Access management spacing standards;

(B) Public road intersection spacing; or

(b) The Department determines that an improvement in safety occurs on the section of expressway where an approach is requested and both paragraphs (A) and (B) of this subsection are met:

(A) Only one approach to the expressway is requested and:

(i) Where a new approach is requested, no approach to the site currently exists; or

(ii) Where a change of use occurs, only one private approach to the site currently exists; and

(B) An improvement in safety occurs on the expressway primarily and on other state highways secondarily and includes:

(i) A decrease in the number of existing conflict points;

(ii) Elimination of existing left turns;

(iii) Elimination of an existing overlap of left turn movements;

(iv) The addition of a left turn lane where existing conditions meet the Department’s installation criteria; or

(v) Provision of adequate sight distance at the alternate approach or the subject approach where existing sight distance is deficient.

(c) The Region Access Management Engineer determines that the approach results in a benefit to the state highway system due to other circumstances.

(4) A benefit to the state highway system is determined by:

(a) The Region Access Management Engineer when an Application for State Highway Approach is submitted for a private approach in an urban area and on an expressway; or

(b) The Department’s Technical Services Manager when an Application for a Grant of Access is submitted.

Stat. Auth.: ORS 184.616. 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 347.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0095

Temporary Approaches

(1) The Region Manager may approve an application for a temporary approach where:

(a) The approach is consistent with safety factors;

(b) Conditions such as signing or flagging are identified on the Construction Permit and the Permit to Operate and are enforced during construction and operation; and

(2) A deposit of not less than $1000 per temporary approach is required prior to issuance of a Construction Permit and a Permit to Operate a Temporary Approach to guarantee its removal by the applicant:

(a) The appropriate District office will determine the amount of the deposit;

(b) If the Department incurs no expense in the removal of the temporary approach, the entire deposit is refunded to the applicant; and

(c) If the Department incurs any expenses in the removal of the approach, the applicant will be billed for the amount in excess of the amount deposited or refunded the difference if the expense is less than the amount deposited.

(3) The Region Manager may extend the time period for a temporary approach where extenuating circumstances beyond the control of the applicant or permitee exist.

(4) Existence of a recorded easement does not by itself establish a right of access and does not guarantee the approval of an application for a temporary approach or the location of a temporary approach.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: 1 OTC 43, f. 11-26-74, ef. 12-1-74; 1 OTC 20-1980, f. & ef. 10-22-80; TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; Renumbered from 734-050-0060; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0120; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0105

Restricted Use Approaches

(1) The Region Manager may approve an application for a restricted use approach where the approach is consistent with safety factors.

(2) The Department shall require restricted use approaches:

(a) To be restricted from general use by physical means such as a gate or other design approved by the Department; and

(b) May require special design considerations such as reinforced sidewalks, curb design options, and landscaping considerations.

(3) The Region Manager may require mitigation measures to be incorporated into a Construction Permit and a Permit to Operate a Restricted Use Approach.

(4) Existence of a recorded easement does not by itself establish a right of access and does not guarantee the approval of an application for a restricted use approach or the location of a restricted use approach.

Stat. Auth.: ORS 184.616, 814.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0115

Access Management Spacing Standards for Approaches

(1) Access management spacing standards for approaches to state highways:

(a) Are based on the classification of the highway and highway segment designation, type of area, and posted speed;

(b) Apply to properties abutting state highways, highway or interchange construction and modernization projects, and planning processes involving state highways or other projects determined by the Region Manager; and

(A) These standards will apply to private approaches at the time of a change of use.

(B) If infill development or redevelopment occurs, spacing and safety factors will improve by moving in the direction of the access management spacing standards, with the goal of meeting or improving compliance with the access management spacing standards.

(C) For a highway or interchange construction or modernization project or other roadway or interchange project determined by the Region Manager, the project will improve spacing and safety factors by moving in the direction of the access management spacing standards, with the goal of meeting or improving compliance with the access management spacing standards.

(2) Spacing standards in Tables 1, 2 and 3 adopted and made a part of this rule, identify the spacing standards. The Region Access Management Engineer may apply the ‘urban’ standards to infill or redevelopment projects in a rural area on commercial or industrial zoned land where the land has been developed into an urban block pattern including a local street network, and the posted highway speed is at or below 45 miles per hour.

(3) An applicant may provide evidence to support a determination that an approach is located in a commercially zoned area that has the characteristics established in the Oregon Highway Plan for a Special Transportation Area (STA) or for an Urban Business Area (UBA), in which case the spacing standards for such segment designation may be applied to the application. A decision by local government or by the Oregon Transportation Commission to either designate or not designate an STA and/or UBA makes this provision unavailable. This provision may not be applied where a management plan would be required for an STA or a UBA under the provisions of the Oregon Highway Plan.

(4) Deviations must meet the criteria in OAR 734-051-0135.

(5) Location of traffic signals on state highways must meet the criteria of OAR 734-020-0400 through 734-020-0500.

[ED. NOTE: Tables referenced are available from the agency.]

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.313 & 374.345

Stats. Implemented: ORS 374.305 - 374.345 & 374.990

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04 cert. ef. 3-1-04, Renumbered from 734-051-0190; HWD 8-2005, f. & cert. ef. 9-16-05; HWD 2-2007, f. & cert. ef. 1-26-07; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0125

Access Management Spacing Standards for Approaches in an Interchange Area

(1) Tables 4, 5, 6 and 7 identify the spacing standards for approaches in the area of an interchange, which are shown in Figures 1, 2, 3 and 4. These tables and figures are adopted and made a part of this rule. The spacing standards:

(a) Are based on classification of highway and highway segment designation, type of area, and posted speed;

(b) Apply to properties abutting state highways, highway or interchange construction and modernization projects, planning processes involving state highways, or other projects determined by the Region Manager; and

(A) These standards will apply to private approaches at the time of a change of use.

(2) When the Department approves an application:

(a) Access spacing standards for approaches in the area of an interchange shown in Figures 1, 2, 3 and 4 must be met or approaches must be combined or eliminated to result in a net reduction of approaches to the state highway and improve compliance with spacing standards; and

(b) The approach must be consistent with any applicable Access Management Plan or Interchange Area Management Plan.

(3) Deviations must meet the criteria in OAR 734-051-0135.

(4) Location of traffic signals within an interchange area illustrated in Figures 1, 2, 3 and 4 must meet the criteria of OAR 734-020-0400 through 734-020-0500.

(5) The Department should acquire access control on crossroads around interchanges for a distance of 1320 feet. In some cases it may be appropriate to acquire access control beyond 1320 feet.

[ED. NOTE: Tables referenced are available from the agency.]

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312 & 374.345

Stats. Implemented: ORS 374.305 - 374.350 & 374.990

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0200; HWD 2-2007, f. & cert. ef. 1-26-07; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0135

Deviations from Access Management Spacing Standards

(1) A deviation will be considered when an approach does not meet spacing standards and the approach is consistent with safety factors in OAR 734-051-0080(8). The information necessary to support a deviation must be submitted with an application or with the supplemental documentation as set forth in OAR 734-051-0070(5) and (6).

(2) For a private approach with no reasonable alternate access to the property, as identified in OAR 734-051-0080(2), spacing standards are met if property frontage allows or a deviation is approved as set forth in this section. The Region Manager shall approve a deviation for a property with no reasonable alternate access if the approach is located:

(a) To maximize the spacing between adjacent approaches; or

(b) At a different location if the maximized approach location:

(A) Causes safety or operational problems; or

(B) Would be in conflict with a significant natural or historic feature including trees and unique vegetation, a bridge, waterway, park, archaeological area, or cemetery.

(3) The Region Access Management Engineer shall approve a deviation if:

(a) Adherence to spacing standards creates safety or traffic operation problems;

(b) The applicant provides a joint approach that serves two or more properties and results in a net reduction of approaches to the highway;

(d) Adherence to spacing standards will cause the approach to conflict with a significant natural or historic feature including trees and unique vegetation, a bridge, waterway, park, archaeological area, or cemetery;

(e) The highway segment functions as a service road;

(f) On a couplet with directional traffic separated by a city block or more, the request is for an approach at mid-block with no other existing approaches in the block or the proposal consolidates existing approaches at mid-block; or

(g) Based on the Region Access Management Engineer’s determination that:

(A) Safety factors and spacing significantly improve as a result of the approach; and

(B) Approval does not compromise the intent of these rules as set forth in OAR 734-051-0020.

(4) When a deviation is considered, as set forth in section (1) of this rule, and the application results from infill or redevelopment:

(a) The Region Access Management Engineer may waive the requirements for a Traffic Impact Study and may propose an alternative solution where:

(A) The requirements of either section (2) or section (3) of this rule are met; or

(B) Safety factors and spacing improve and approaches are removed or combined resulting in a net reduction of approaches to the highway; and

(b) Applicant may accept the proposed alternative solution or may choose to proceed through the standard application review process.

(5) The Region Access Management Engineer shall require any deviation for an approach located in an interchange access management area, as defined in the Oregon Highway Plan, to be evaluated over a 20-year horizon from the date of application and may approve a deviation for an approach located in an interchange access management area if:

(a) A condition of approval, included in the Permit to Operate, is removal of the approach when reasonable alternate access becomes available;

(b) The approach is consistent with an access management plan for an interchange that includes plans to combine or remove approaches resulting in a net reduction of approaches to the highway;

(c) The applicant provides a joint approach that serves two or more properties and results in a net reduction of approaches to the highway; or

(d) The applicant demonstrates that existing development patterns or land holdings make utilization of a joint approach impracticable.

(6) The Region Access Management Engineer shall not approve a deviation for an approach if any of the following apply:

(a) Spacing standards can be met even though adherence to spacing standards results in higher site development costs.

(b) The deviation results from a self-created hardship including:

(A) Conditions created by the proposed site plan, building footprint or location, on-site parking, or circulation; or

(B) Conditions created by lease agreements or other voluntary legal obligations.

(7) The Region Access Management Engineer shall not approve a deviation for an approach in an interchange access management area where reasonable alternate access is available and the approach would increase the number of approaches to the highway.

(8) Where section (2), (3), (4) or (5) of this rule cannot be met, the Region Manager, not a designee, may approve a deviation where:

(a) The approach is consistent with safety factors; and

(b) The Region Manager identifies and documents conditions or circumstances unique to the site or the area that support the development.

(9) The Region Manager may require an intergovernmental agreement or completion of an access management plan or an interchange area management plan prior to approval of a deviation to construct a public approach.

(10) Approval of a deviation may be conditioned upon mitigation measures set forth in OAR 734-051-0145.

(11) Denial of a deviation is an appealable decision.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0320; HWD 8-2010(Temp), f. & cert. ef. 7-30-10 thru 1-21-11; HWD 1-2011, f. & cert. ef. 1-19-11; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0145

Mitigation Measures

(1) The Department may require mitigation measures on the state highway or the subject property to comply or improve compliance with the division 51 rules for continued operation of an existing approach or construction of a new approach.

(2) Unless otherwise set forth in division 51 rules, the cost of mitigation measures is the responsibility of the applicant, permitee, or property owner as set forth in OAR 734-051-0205.

(3) Mitigation measures may include:

(a) Modifications to an approach;

(b) Modifications of on-site storage of queued vehicles;

(d) Modifications to left turn or right turn channelization or deceleration lanes;

(e) Modifications required to maintain intersection sight distance;

(f) Modification or installation of traffic signals or other traffic control devices;

(g) Modification of the highway;

(h) Modification or installation of curbing;

(i) Consolidation of existing approaches or provisions for joint use accesses;

(j) Installation of raised medians;

(k) Restriction of turn movements for circumstances including:

(A) The proximity of existing approaches or offset of opposing approaches;

(B) Approaches within an Interchange Management Area;

(D) Areas of insufficient decision sight distance for speed;

(E) The proximity of railroad grade crossings;

(F) Approaches with a crash history involving turning movements;

(G) The functional area of an intersection; and

(H) Areas where safety or traffic operation problems exist.

(l) Installations of sidewalks, bicycle lanes, or transit turnouts;

(m) Development of reasonable alternate access; and

(n) Modifications of local streets or roads along the frontage of the site.

(4) Mitigation measures are directly related to the impacts of the particular approach on the highway and the scale of the mitigation measures will be directly proportional to those impacts, as follows:

(a) Where safety standards can be met by mitigation measures located entirely within the property controlled by the applicant or within existing state right of way, that will be the preferred means of mitigation.

(b) Where safety standards cannot be met with measures located entirely within the property controlled by the applicant or within existing state right of way, ODOT will make an effort to participate in negotiations between the applicant and other affected property owners or assist the applicant to take necessary actions.

(c) When cumulative effects of existing and planned development create a situation where approval of an application would require mitigation measures that are not directly proportional to the impacts of the proposed approach, the Region Manager may allow mitigation measures to mitigate impacts as of the day of opening and defer mitigation of future impacts to ODOT project development provided the applicant conveys any necessary right of way to ODOT prior to development of the subject approach.

(5) Mitigation to an alternate access may be more significant where the property fronts a higher classification of highway than where the property fronts a lower classification of highway.

(6) An applicant may propose an Access Mitigation Proposal or an Access Management Plan to be implemented by the applicant or the local jurisdiction.

(7) The Department will work with the local jurisdiction and the applicant to establish mitigation measures and alternative solutions including:

(a) Changes to on-site circulation;

(b) On-site improvements; and

(8) Where mitigation measures include traffic controls:

(a) The applicant bears the cost of the controls and constructs required traffic controls within a timeframe identified by the Department or reimburses the Department for the cost of designing, constructing, or installing traffic controls; and

(b) An applicant that is a lessee must provide evidence of compliance with required traffic controls and must identify the party responsible for construction or installation of traffic controls during and after the effective period of the lease.

(9) Traffic signals are approved in the following priority:

(a) Traffic signals for public approaches.

(b) Private approaches identified in a transportation system plan to become public.

(10) Traffic signals are approved with the following requirements:

(a) A signalized private approach must meet spacing standards for signalization relative to all planned future signalized public road intersections; and

(b) The effect of the private approach must meet traffic operations standards, signals, or signal systems standards in OAR 734-020-0400 through 734-020-0500 and 734-051-0115 and 734-051-0125.

(11) All highway improvements within the right of way resulting from mitigation constructed by the permitee, and inspected and accepted by the Department, become the property of the Department.

(12) Approval of an application with mitigation measures is an appealable decision.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312 & 374.345

Stats. Implemented: ORS 374.305 - 374.350 & 374.990

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0210; HWD 2-2007, f. & cert. ef. 1-26-07; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0155

Access Management Plans and Interchange Area Management Plans

(1) The Department encourages the development of Access Management Plans and Interchange Area Management Plans to maintain and improve highway performance and safety by improving system efficiency and management before adding capacity. Access Management Plans and Interchange Area Management Plans:

(a) Must be consistent with Oregon Highway Plan;

(b) Must be used to evaluate development proposals; and

(2) Access Management Plans and Interchange Area Management Plans must be adopted by the Oregon Transportation Commission as a transportation facility plan consistent with the provisions of OAR 731-015-0065. Prior to adoption by the Oregon Transportation Commission, the Department will work with local governments on any amendments to local comprehensive plans and transportation system plans and local land use and subdivision codes to ensure the proposed Access Management Plan and Interchange Area Management Plan is consistent with the local plan and codes.

(3) The priority for developing Access Management Plans should be placed on facilities with high traffic volumes or facilities that provide important statewide or regional connectivity where:

(a) Existing developments do not meet spacing standards;

(b) Existing development patterns, land ownership patterns, and land use plans are likely to result in a need for deviations; or

(c) An Access Management Plan would preserve or enhance the safe and efficient operation of a state highway or interchange.

(4) An Access Management Plan may be developed:

(a) By the Department;

(b) By local jurisdictions; or

(5) An Access Management Plan must comply with all of the following criteria, unless the Plan documents why a criterion is not applicable:

(a) Include sufficient area to address highway operation and safety issues and development of adjoining properties including local access and circulation.

(b) Describe the roadway network, right-of-way, access control, and land parcels in the analysis area.

(d) Be consistent with any applicable Interchange Area Management Plan, corridor plan, or other facility plan adopted by the Oregon Transportation Commission.

(e) Include polices, provisions and standards from local comprehensive plans, transportation system plans, and land use and subdivision codes that are relied upon for consistency and that are relied upon to implement the Access Management Plan.

(f) Contain short, medium, and long-range actions to improve operations and safety and preserve the functional integrity of the highway system.

(g) Consider whether improvements to local street networks are feasible.

(h) Promote safe and efficient operation of the state highway consistent with the highway classification and the highway segment designation.

(i) Consider the use of the adjoining property consistent with the comprehensive plan designation and zoning of the area.

(j) Provide a comprehensive, area-wide solution for local access and circulation that minimizes use of the state highway for local access and circulation.

(6) The Department encourages the development of an Interchange Area Management Plan to plan for and manage grade-separated interchange areas to ensure safe and efficient operation between connecting roadways:

(a) Interchange Area Management Plans are developed by the Department and local governmental agencies to protect the function of interchanges by maximizing the capacity of the interchanges for safe movement from the mainline facility, to provide safe and efficient operations between connecting roadways, and to minimize the need for major improvements of existing interchanges;

(b) The Department will work with local governments to prioritize the development of Interchange Area Management Plans to maximize the operational life and preserve and improve safety of existing interchanges not scheduled for significant improvements; and

(c) Priority should be placed on those facilities on the Interstate system with cross roads carrying high volumes or providing important statewide or regional connectivity.

(7) An Interchange Area Management Plan is required for new interchanges and should be developed for significant modifications to existing interchanges. An Interchange Area Management Plan must comply with the following criteria, unless the Plan documents why compliance with a criterion is not applicable:

(a) Be developed no later than the time an interchange is designed or is being redesigned.

(b) Identify opportunities to improve operations and safety in conjunction with roadway projects and property development or redevelopment and adopt policies, provisions, and development standards to capture those opportunities.

(d) Consider current and future traffic volumes and flows, roadway geometry, traffic control devices, current and planned land uses and zoning, and the location of all current and planned approaches.

(e) Provide adequate assurance of the safe operation of the facility through the design traffic forecast period, typically 20 years.

(f) Consider existing and proposed uses of all the property within the designated study area consistent with its comprehensive plan designations and zoning.

(g) Be consistent with any applicable Access Management Plan, corridor plan or other facility plan adopted by the Oregon Transportation Commission.

(h) Include polices, provisions and standards from local comprehensive plans, transportation system plans, and land use and subdivision codes that are relied upon for consistency and that are relied upon to implement the Interchange Area Management Plan.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312 & 374.345

Stats. Implemented: ORS 374.305 to 374.350 & 374.990

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0360; HWD 2-2007, f. & cert. ef. 1-26-07; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0165

Design of Approaches

(1) Approach design must conform to standards in the 2002 Oregon Highway Design Manual and allow movement to and from the highway of vehicles reasonably expected to utilize the approach without undue conflict with other traffic.

(2) Design of an approach may require mitigation measures as set forth in OAR 734-051-0145.

(3) No person may place curbs, posts, signs, or other structures on the highway right of way without written approval of the Region Manager.

(4) An applicant is responsible for the cost of accommodating drainage from the property.

(5) Approaches that are private road crossings must be constructed by grade separation except where the Technical Services Manager determines that grade separation is not economically feasible. Where no grade separation is required, the applicant shall install signing, signalization, or other traffic safety devices the Technical Services Manager determines necessary:

(a) The Department may construct the approach and additional facilities in accordance with the plans and specifications approved by the Department; or

(b) The applicant may be required to install the approach and additional facilities, other than signalization, in accordance with plans and specifications approved by the Region Manager, where installation can be completed adequately and safely.

Stat. Auth.: ORS 184.616, 184.619, 374.305, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: 1 OTC 43, f. 11-26-74, ef. 12-1-74; 1 OTC 20-1980, f. & ef. 10-22-80; TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; Renumbered from 734-050-0035; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0260; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0175

Issuance of Construction Permits

(1) The Region Manager shall issue a Construction Permit when construction plans, if required, and all other required documents are received and approved.

(2) Receipt of the Construction Permit by the applicant constitutes acceptance of the special provisions, mitigation measures, conditions, or agreements, consistent with and identified and approved through the application process, unless the applicant provides written notification to the Department that the special provisions, mitigation measures, conditions, or agreements are not accepted within 21 days of the date of mailing Construction Permit.

(3) If the applicant does not accept the special provisions, mitigation measures, conditions, or agreements the Construction Permit will be void.

(4) The applicant must provide the Department with proof of liability insurance and bond or deposit in lieu of bond as required by OAR 734-051-0215 within 60 days from the date of transmittal or the Construction Permit and approval of the application are void.

(5) No work on highway right of way may begin until an applicant obtains a valid Construction Permit, approved and signed by the Region Manager.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0230; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0185

Construction of Approaches

(1) An applicant must notify the Region Manager at least two work days prior to beginning construction.

(2) Construction must conform to the terms of the Construction Permit including any special provisions, mitigation measures, conditions, or agreements, and the applicant must notify the Region Manager when construction is complete.

(3) Upon inspection of the approach the Department shall notify the applicant if construction deficiencies exist:

(a) The applicant must correct all deficiencies within 60 days of notification that deficiencies exist and notify the Region Manager; and

(b) The Region Manager shall re-inspect the approach.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: 1 OTC 43, f. 11-26-74, ef. 12-1-74; 1 OTC 20-1980, f. & ef. 10-22-80; TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; Renumbered from 734-050-0040; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0250; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0195

Effective Period of Construction Permits

(1) A Construction Permit is effective for the time period specified on the permit. The Region Manager shall extend the time period of a Construction Permit for good cause shown.

(2) If an applicant fails to comply with the terms and conditions of the Construction Permit the Department may, at the applicant’s expense:

(a) Reconstruct or repair the approach; or

(b) Cancel the Construction Permit and remove the approach.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0240; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0205

Allocation of Costs for Construction and Maintenance of Approaches

(1) Except as otherwise provided in the Division 51 rules, the applicant or permitee is responsible for the cost of mitigation measures and the cost of construction of an approach including the cost of materials, labor, signing, signals, structures, equipment, traffic channelization, and other permit requirements.

(2) The Department may be responsible for the cost of mitigation measures and the cost of construction of an approach where the costs are a part of the terms and conditions of a right of way acquisition obligation or other contractual agreement.

(3) The Department is responsible for the cost of removal or relocation of a permitted or grandfathered approach during project delivery unless the removal or relocation is at the request of a permitee or owner of a grandfathered approach.

(4) The applicant, permitee, or owner of a grandfathered approach is responsible for the cost of maintenance of an approach from the outside edge of the highway pavement, shoulder, or curb-line to the right of way line, and any portion of the approach on the applicant’s property required to be maintained as part of the permit.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: 1 OTC 43, f. 11-26-74, ef. 12-1-74; 1 OTC 20-1980, f. & ef. 10-22-80; TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; Renumbered from 734-050-0020; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0270; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0215

Liability and Control for Construction and Maintenance, Repair, Operation and Use of Approaches

(1) An applicant or permitee assumes responsibility for damage or injury to any person or property resulting from the construction, maintenance, repair, operation, or use of an approach for which a Construction Permit or a Permit to Operate is issued and where the applicant may be legally liable.

(2) An applicant or permitee indemnifies and holds harmless the State of Oregon, the Commission, the Department, and all officers, employees or agents of the Department against damages, claims, demands, actions, causes of action, costs, and expenses of whatsoever nature which may be sustained by reasons of the acts, conduct, or operation of the applicant, his agents, or employees in connection with the construction, maintenance, repair, operation, or use of an approach.

(3) Construction of an approach may not begin until the applicant provides the Department with evidence of insurance in the following minimum amounts:

(a) $50,000 for property damage resulting from any single occurrence, or $500,000 combined single limit; and

(b) $200,000 for the death or injury of any person, subject to a limit of $500,000 for any single occurrence.

(4) Insurance policies must include as named as insured the State of Oregon, the Commission, and the Department, its officers, agents and employees, except as to claims against the applicant, for personal injury to any members of the Commission or the Department and its officers, agents, and employees or damage to any of its or their property.

(5) Construction of an approach may not begin until a copy of the insurance policy or a certificate showing evidence of insurance is filed with the Department.

(6) An applicant or permitee shall provide 30 days written notice to the Department of intent to cancel or intent not to renew insurance coverage. Failure to comply with notice provisions does not affect coverage provided to the State of Oregon, the Commission, or the Department, its officers, agents and employees.

(7) If the highway surface or highway facilities are damaged by the applicant or the applicant’s contractor, the applicant must replace or restore the highway or highway facilities to a condition satisfactory to the Department.

(8) The applicant or permitee must furnish, in an amount specified by the Region Manager and for the time period necessary to install the approach, a cash deposit or a bond issued by a surety company licensed to do business in the State of Oregon to ensure that any damage to the highway has been corrected to the Department’s satisfaction; and no construction is performed until a deposit or bond is filed with the Department.

(9) The applicant or permitee is responsible for relocating or adjusting any utilities located on highway right of way when required for accommodation of the approach, and no construction may be performed until the applicant furnishes evidence to the Department that satisfactory arrangements have been made with the owner of the affected utility facility.

(10) The applicant or permitee is responsible for erosion control during construction of the approach.

(11) Where warning signs are required by the Construction Permit, other regulations, or the Region Manager, the Department furnishes, places, and maintains the signs at the applicant’s or permitee’s expense, and unauthorized signs are not allowed on any portion of the right of way.

(12) The work area during any construction or maintenance performed under a Construction Permit or a Permit to Operate is protected in accordance with the Manual on Uniform Traffic Control Devices adopted under OAR 734-020-0005.

(13) An applicant or permitee shall provide true and complete information, and if any required fact that is material to the assessment of the approach’s impact upon traffic safety, convenience or the legal or property rights of any person (including the State of Oregon) is false, incorrect or omitted, the Region Manager may:

(a) Deny or revoke the Construction Permit; and

(b) At the applicant’s or permitee’s expense:

(A) Require the applicant or permitee to remove the approach and restore the area to a condition acceptable to the Region Manager;

(B) Require the applicant or permitee to provide additional safeguards to protect the safety, convenience, and rights of the traveling public and persons (including the State), if such safeguards are adequate to achieve these purposes, as a condition of the continued validity of the Permit to Operate;

(D) Remove the approach.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: 1 OTC 43, f. 11-26-74, ef. 12-1-74; 1 OTC 20-1980, f. & ef. 10-22-80; TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; Renumbered from 724-050-0025; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0280; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0225

Post-Decision Review Procedure for Construction Permits

(1) An applicant may request a post-decision review to modify a Construction Permit if:

(a) Ambiguities or conflicts exist in the Construction Permit;

(b) New and relevant information concerning the approach or the Construction Permit is available; or

(2) The Region Manager shall determine if a request for a post-decision review meets the criteria in section (1) of this rule.

(3) The Region Manager may conduct a post-decision review and may modify the Construction Permit.

(4) A post-decision review does not stay the time period to request a Region Review or Contested Case Hearing.

(5) A post-decision review decision to modify a construction permit is an appealable decision.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312 & 374.345

Stats. Implemented: ORS 374.305 - 374.350 & 374.990

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0235; HWD 2-2007, f. & cert. ef. 1-26-07; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0245

Issuance of a Permit to Operate, Maintain and Use an Approach

(1) The Department shall issue a Permit to Operate for a private approach upon approval of an application, where no Construction Permit is required, or upon notification by the applicant that construction is complete and when the approach conforms to the terms and conditions of the Construction Permit.

(2) Use of a private approach is legal only after a Permit to Operate is issued.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00 HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0290; HWD 8-2010(Temp), f. & cert. ef. 7-30-10 thru 1-21-11; HWD 1-2011, f. & cert. ef. 1-19-11; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0255

Maintenance of Approaches

(1) An applicant, permitee, or owner of a grandfathered approach must obtain approval and necessary permits prior to performing maintenance on an approach that interferes with or interrupts traffic on or along a highway.

(2) Where traffic signals are required, signal maintenance is performed by the Department or as assigned by a Cooperative Cost Agreement.

(3) For a public approach, the Department may require an intergovernmental agreement with the city or county to define responsibilities and obligations for maintenance of the approach.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: 1 OTC 43, f. 11-26-74, ef. 12-1-74; 1 OTC 20-1980, f. & ef. 10-22-80; TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; Renumbered from 734-050-0045; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0310; HWD 8-2010(Temp), f. & cert. ef. 7-30-10 thru 1-21-11; HWD 1-2011, f. & cert. ef. 1-19-11; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0265

Effective Period of Permit to Operate, Maintain and Use an Approach

(1) Except as otherwise provided a Permit to Operate is effective unless:

(a) Revoked by mutual consent;

(b) Revoked for failure to abide by the terms and conditions;

(d) Safety or operational problems exist as set forth in OAR 734-051-0275;

(e) The highway facility is significantly improved to meet classification of the highway, highway mobility standards, spacing standards, and safety criteria that are inconsistent with the approach; or

(f) By other operation of law.

(2) The Permit to Operate is binding on successors and assignors including successors in interest to the property being served by the approach.

(3) The operation, maintenance, and use of an approach are subject to the control of the legislature over the state highway system.

(4) A Permit to Operate should not be construed to be beyond the power or authority of the legislature to control the state highway system.

(5) Acceptance of a Permit to Operate is acceptance of all special provisions, mitigation measures, conditions, or agreements, identified and approved through the application process and acknowledgment that all rights and privileges may be changed or relinquished by legislative action.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: 1 OTC 43, f. 11-26-74, ef. 12-1-74; 1 OTC 20-1980, f. & ef. 10-22-80; TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; Renumbered from 734-050-0050; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0300; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0275

Removal of Approaches

(1) The Department may revoke a Permit to Operate and may remove an approach:

(a) If current or potential safety or operational problems exist that are verified by an engineering analysis;

(b) If an applicant or permitee fails to comply with any terms or conditions of a Permit to Operate; or

(2) The Department shall provide written notification of the intent to remove an approach under section (1) of this rule as required by ORS 374.305, 374.307, and 374.320.

(3) The Region Manager may determine that an approach identified for removal as described in section (1) of this rule may remain open if mitigation measures are required as set forth in OAR 734-051-0145:

(a) The Department shall provide written notification of the intent to remove the approach unless mitigation measures are taken; and

(b) The applicant must agree to comply with mitigation measure and to bear the cost of the mitigation measures.

(4) An applicant, permitee, or property owner is responsible for the expense of removing an approach except as set forth in OAR 734-051-0205 and 734-051-0285.

(5) Removal of a permitted or grandfathered approach is an appealable decision.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0380; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0285

Project Delivery

(1) This rule applies to access management on projects involving construction of new highways and interchanges, highway or interchange modernization projects, highway and interchange preservation projects, highway and interchange operations projects, or other highway and interchange projects. The Department encourages the development of Access Management Strategies and Access Management Plans during project delivery to maintain and improve highway performance and safety by improving system efficiency and management before adding capacity. Access Management Plans and Access Management Strategies developed during project delivery must improve access management conditions to the extent reasonable within the limitation, scope, and purpose of the project and consistent with design parameters and available funds.

(2) This rule does not create an obligation that the Department apply documentation requirements in OAR 734-051-0070(1) or the standards and criteria in 734-051-0080, 734-051-0115, 734-051-0125, 734-051-0275 or 734-051-0295 through 734-051-0335.

(3) The Region Manager shall develop Access Management Strategies for modernization projects, projects within an influence area of an interchange where the project includes work along the crossroad, or projects on an expressway and may develop Access Management Strategies for other highway projects.

(4) Except where the Region Manager documents the reasons why an Access Management Plan is not appropriate, the Region Manager shall develop an Access Management Plan for highway modernization projects and for interchange modernization projects where the project includes work along the crossroad. Access Management Plans are developed under the requirements of OAR 734-051-0155.

(5) The Region Manager may require modification, mitigation or removal of approaches within project limits:

(a) Pursuant to either:

(A) An Access Management Plan or an Interchange Area Management Plan adopted by the Oregon Transportation Commission; or

(B) An approved Access Management Strategy; and

(b) If necessary to meet the classification of highway or highway segment designation, mobility standards, spacing standards or safety factors; and

(c) If a property with an approach to the highway has multiple approaches and if a property with an approach to the highway has alternate access in addition to the highway approach.

(d) The determination made under subsections (a) through (c) of this section must conclude that the net result of the project including closures, modification and mitigations will be that access will remain adequate to serve the volume and type of traffic reasonably anticipated to enter and exit the property, based on the planned uses for the property.

(6) An Access Management Strategy may be developed for the project limits, a specific section of the highway within the project limits, or to address specific safety or operation issues within the project limits. An Access Management Strategy must:

(a) Describe the criteria for actions that will be taken during the project and that will occur primarily within the highway right of way, within the project limits.

(b) Be consistent with the 1999 Oregon Highway Plan.

(c) Promote safe and efficient operation of the state highway consistent with the highway classification and the highway segment designation.

(d) Provide for reasonable use of the adjoining property consistent with the comprehensive plan designation and zoning of the area.

(e) Be developed in coordination with local governments to facilitate any actions needed on the part of local governments to implement the Access Management Strategy.

(7) All approaches in an area that is not access controlled that are identified to remain open in an Access Management Strategy or Access Management Plan are presumed to be in compliance with Division 51 rules once any measures prescribed for such compliance by the plan are completed. Subsequent changes will be measured from that status. However, that status does not convey a grant of access.

(8) In the event of a conflict between the access management spacing standards and the access management spacing standards for approaches in an interchange area the more restrictive provision will prevail. These spacing standards are used to develop Access Management Plans and where appropriate:

(a) Support improvements such as road networks, channelization, medians, and access control, with an identified committed funding source, and consistent with the 1999 Oregon Highway Plan;

(b) Ensure that approaches to cross streets are consistent with spacing standards on either side of the ramp connections; and

(c) Support interchange designs that consider the need for transit and park-and-ride facilities and the effect of the interchange on pedestrian and bicycle traffic.

(9) Notwithstanding other provisions of this Division, the Region Manager, not a designee, may recognize an approach to be in compliance where there is no Access Control, and where construction details for a Department project show the intention to preserve the approach as a part of that project, as documented by plans dated before April 1, 2000.

[Publication: Publications referenced are available from the agency.]

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312 & 374.345

Stats. Implemented: ORS 374.305 - 374.350 & 374.990

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0370; HWD 2-2007, f. & cert. ef. 1-26-07; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0295

Grants of Access

(1) A grant of access establishes a right of access; and

(a) For a grant of access approved prior to April 1, 2000, the grant of access does not guarantee approval of an Application for State Highway Approach or issuance of a Construction Permit or Permit to Operate; and

(b) Subsequent to April 1, 2000, the Department may approve an Application for a Grant of Access only where an Application for State Highway Approach or a Construction Permit or Permit to Operate may be approved.

(c) Subsequent to January 21, 2011, where no right of access exists for a public approach, an application for a Grant of Access must be submitted.

(2) The applicant for a grant of access must be the owner of the property abutting the highway right of way or the owner’s designated agent.

(3) The Department shall not approve an Application for a Grant of Access for a private approach:

(a) On a freeway, freeway mainlines, or freeway ramp;

(b) On an expressway or expressway ramp;

(d) In an Interchange Management Area.

(4) The Department may approve an Application for a Grant of Access to private property abutting a state and local facility where all of the following conditions are met:

(a) An applicant submits an Application for State Highway Approach as set forth in OAR 734-051-0070 and concurrently submits an Application for a Grant of Access, as set forth in OAR 734-051-0305.

(b) An applicant meets the requirements for issuance of a Construction Permit, as set forth in OAR 734-051-0175.

(c) The applicant agrees in writing to meet any mitigation measures, terms, and conditions placed on the Construction Permit and the Permit to Operate.

(d) The grant of access is consistent with the 1999 Oregon Highway Plan.

(e) One of the following occurs:

(A) The Department determines that access control is no longer needed at the location specified in the Application for a Grant of Access as set forth in section (7) of this rule; or

(B) The applicant establishes that the grant of access will benefit the state highway system as set forth in OAR 734-051-0085(1) and (2).

(f) Alternate access to the property is not and cannot be made reasonable as set forth in OAR 734-051-0080(7).

(g) The property owner must agree to deed restrictions to ensure that future development intensity and trip generation can be safely accommodated by the state transportation system.

(h) The application is approved by the Region Manager and reviewed by the State Traffic Engineer, and approved by the Technical Services Manager.

(5) The Department shall not approve an Application for a Grant of Access for a public approach:

(a) On a freeway, freeway mainlines, or freeway ramp;

(b) On an expressway ramp;

(d) In an Interchange Management Area.

(6) The Department may approve an Application for a Grant of Access for a public approach to a state highway where all of the following conditions are met:

(a) An applicant submits an Application for a Grant of Access, as set forth in OAR 734-051-0305.

(b) The applicant meets the requirements for issuance of a Construction Permit, as set forth in OAR 734-051-0175.

(c) The applicant agrees in writing to meet any mitigation measures, terms, and conditions placed on the Construction Permit and the Permit to Operate.

(d) The grant of access is consistent with the 1999 Oregon Highway Plan, an adopted corridor plan, and local transportation system plan, or in the absence of an adopted corridor plan or transportation system plan, a grant of access may be considered where the applicant has explored all possible alternatives to the connection, including parallel streets, and the purchase of additional right of way.

(e) One of the following occurs:

(A) The Department determines that access control is no longer needed at the location specified in the Application for a Grant of Access as set forth in section (7) of this rule; or

(B) The applicant establishes that the grant of access will benefit the state highway system as set forth in OAR 734-051-0085; and

(i) The Department may determine that a benefit to the state highway system exists where the proposed connection is a public facility with a functional classification of collector or higher and is identified in an adopted transportation system plan, consistent with OAR 660-012-0000 through 660-012-0070; and

(ii) The Department shall require supporting documentation of sufficient detail to determine that a benefit to the state highway system exists, as set forth in OAR 734-051-0085(1) and (2), to be included in the transportation system plan; and

(iii) The Department shall determine if the supporting documentation is sufficient to meet the requirements in subparagraph (ii) of this paragraph.

(f) The Department and the local jurisdiction requesting a grant of access for a public approach:

(A) Shall enter into an intergovernmental agreement that details the responsibility for construction, maintenance, operation and cost of the public approach; and

(B) May enter into an intergovernmental agreement that addresses transportation plan and land use amendments or modifications to ensure that planned development intensities and trip generation can be safely supported on the state transportation system.

(g) The application is approved by the Region Manager and reviewed by the State Traffic Engineer, and approved by the Technical Services Manager.

(7) For the purposes of sections (4) and (6) of this rule, the Department shall consider the following factors in determining whether access control is still needed at the location specified in an application for a grant of access:

(a) Classification of the highways and highway segment designations;

(b) Spacing Standards;

(d) State and local transportation system plans;

(e) Comprehensive plan and land uses in the area; and

(f) Safety factors.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312 & 374.345

Stats. Implemented: ORS 374.305 - 374.350 & 374.990

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0430; HWD 2-2007, f. & cert. ef. 1-26-07; HWD 8-2010(Temp), f. & cert. ef. 7-30-10 thru 1-21-11; HWD 1-2011, f. & cert. ef. 1-19-11; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0305

Application Procedure for Grants of Access

(1) An Application for a Grant of Access to a state highway must be made on the standard state form, and the processing fee must accompany the Application for a Grant of Access as set forth in OAR 734-051-0335.

(2) The Department may refuse to accept an Application for a Grant of Access if the application is:

(a) Incomplete;

(b) Not accompanied by an Application for State Highway Approach and all required documentation;

(c) Not accompanied by a current preliminary title report covering the property to be served by the approach, showing any access easements appurtenant to the property; or

(d) From anyone other than the owner of the abutting property or a designated agent.

(3) Upon acceptance of an Application for a Grant of Access and any required attachments, the Department shall use division 51, ORS Chapter 374, and any other applicable state statutes, administrative rules, and Department manuals for evaluating and acting upon the application for a grant of access.

(4) The Region Manager shall review the Application for a Grant of Access, determine if the Application for a Grant of Access meets the requirements of Division 51 and Department policy, and shall:

(a) Forward the Application for a Grant of Access to the State Traffic Engineer; or

(b) Deny the Application for a Grant of Access.

(5) When the Application for a Grant of Access is forwarded to the State Traffic Engineer, the State Traffic Engineer, with the assistance of Department staff, shall:

(a) Evaluate the Application for a Grant of Access;

(b) Notify the applicant of any additional information required; and

(6) The Technical Services Manager shall approve or deny the Application for a Grant of Access and notify the applicant.

(7) If the Application for Grant of Access is approved, the Department shall:

(a) Appraise the abutting property to determine the fair market value of the grant of access;

(b) Notify the applicant of the value of the grant of access; and

(8) After payment of fair market value is received by the Department:

(a) The grant of access will be executed and recorded; and

(b) A copy of the grant of access will be sent to the Region Manager so that a Construction Permit may be issued in accordance with OAR 734-051-0175.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0440; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0315

Indentures of Access

(1) The Department may approve an Application for Indenture of Access to a property abutting a state or local facility where all of the following conditions are met:

(a) An applicant for a private approach submits an Application for State Highway Approach as set forth in OAR 734-051-0070 and concurrently submits an Application for Indenture of Access as set forth in OAR 734-051-0325;

(b) The applicant meets the requirements for issuance of a Construction Permit, as set forth in OAR 734-051-0175;

(c) The applicant agrees in writing to meet any mitigation measures, conditions, and terms placed on the Construction Permit and the Permit to Operate;

(d) The Region Manager approves the Application for Indenture of Access; and

(e) The property owner agrees to the closure of one or more existing reservations of access.

(2) All of the property owners that have a right of access at and are currently being served by the existing reservation of access must be applicants for any Application for Indenture of Access.

(3) A request for removal of farm crossing or farm access restrictions requires a grant of access as set forth in OAR 734-051-0295 and 734-051-0305.

(4) Approval of an Indenture of Access for a public approach may require mitigation measures to ensure that the state transportation system can safely accommodate the traffic at the indentured location. Mitigation measures may include but are not limited to amendments to the comprehensive plan or transportation system plan; or modification to the public street system.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0450; HWD 8-2010(Temp), f. & cert. ef. 7-30-10 thru 1-21-11; HWD 1-2011, f. & cert. ef. 1-19-11; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0325

Application Procedure for Indentures of Access

(1) An Application for Indenture of Access to a state highway must be made on the standard state form and the appropriate processing fee must accompany the Application for Indenture of Access as set forth in OAR 734-051-0335 except where the Region Manager, not a designee, waives the processing fee and documents in writing the reasons for the waiver.

(2) The Department may refuse to accept an Application for Indenture of Access if the application is:

(a) Incomplete;

(b) Not accompanied by an Application for State Highway Approach and all required documentation;

(c) Not accompanied by a current preliminary title report covering the property to be served by the approach showing any access easements appurtenant to the property; or

(d) From anyone other than the owner of the abutting property or a designated agent.

(3) The Department shall use division 51, ORS Chapter 374, and any other applicable state statutes, administrative rules, and Department manuals for evaluating and acting upon the Application for Indenture of Access.

(4) The Region Manager shall approve or deny the Application for Indenture of Access and shall notify the applicant.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0460; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0335

Administration of Grants and Indentures of Access

(1) A processing fee must be submitted with the Application for Indenture of Access.

(2) A processing fee must be submitted with the Application for a Grant of Access. The processing fee is based on the actual documented costs incurred by the Department plus a 10 percent charge for general administration:

(a) The processing fee includes the cost to secure an appraisal of the fair market value of the grant of access;

(b) An initial deposit, applied towards the processing fee, must accompany the Application for a Grant of Access; and

(c) The Department shall determine the amount of the initial deposit based on the complexity of the request and the anticipated cost of obtaining an appraisal of the grant of access.

(3) The applicant shall pay all costs incurred by the Department in processing the Application for a Grant of Access.

(4) Upon approval of an Application for a Grant of Access and prior to issuance of the Construction Permit, payment must be made to the Department in an amount equal to the appraised value of the grant of access. This payment is in addition to the processing fee.

(5) The Department may waive payment of the appraised value of the grant of access when:

(a) An application for a grant of access is for a public approach and the applicant has demonstrated that the public approach will benefit the State highway system as set forth in OAR 734-051-0085(1) and (2); and

(b) The benefit to the State highway system is a direct and immediate result of the public approach.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: 1 OTC 19-1980, f. & ef. 10-22-80, TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; Renumbered from 734-050-0085; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0470; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0345

Region Review Process and Collaborative Discussion Option

(1) The Region Review process is an optional process that falls outside the 120-day timeline in OAR 734-051-0070(8) and applies to appealable decisions.

(2) To request a Region Review, an applicant must submit a written request to the Region Manager within 21 days of the mailing date of notice of an appealable decision and identify documentation to be presented at the Region Review.

(3) A Region Review Committee includes members with expertise in:

(a) Access Management policies;

(b) Roadway design standards;

(d) Traffic engineering; and

(e) At least one Professional Engineer with experience in the issues being reviewed.

(4) The Department may invite a representative from the affected local jurisdiction with land use or transportation knowledge to provide input to the Region Review Committee.

(5) The applicant or permitee may present additional information in writing or in person to the Region Review Committee.

(6) The Region Review Committee shall meet, consider information presented, and provide written findings to the Region Manager.

(7) The Region Manager shall review the Committee’s findings and approve, modify, or reverse the original decision; and

(a) Shall notify the applicant in writing within 21 days of the committee meeting;

(b) Shall include information on the applicant’s right to request a contested case hearing on the original decision; and

(c) May include mitigation measures, conditions and terms to be incorporated into the Construction Permit or Permit to Operate or intergovernmental agreement for a public approach.

(8) An applicant may request a collaborative discussion within the Region Review process:

(a) Both the applicant and the Department must agree to the collaborative discussion.

(b) The collaborative discussion:

(A) Will be conducted under the Alternative Dispute Resolution model in ORS 183.502; and

(B) Will include a time limit of 45 days, or longer if the Department and the applicant agree, in the Agreement to Collaborate.

(d) Any agreement made by the Region Manager:

(A) Shall be documented in writing;

(B) May require conditions or limitations to be incorporated into the Construction Permit or Permit to Operate; and

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0390; HWD 8-2010(Temp), f. & cert. ef. 7-30-10 thru 1-21-11; HWD 1-2011, f. & cert. ef. 1-19-11; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0355

Contested Case Hearings

(1) An applicant may request a contested case hearing as provided by the Administrative Procedures Act (ORS Chapter 183):

(a) The request for a hearing and the hearing are governed by OAR 137-003-0501 through 137-003-0700;

(b) The request for a hearing must evidence an intent to request a hearing and must be submitted to and received by the Office of Administrative Hearings within 21 days of the mailing date of the notice of an appealable decision by the Department;

(c) The hearings process falls within the 120-day timeline in OAR 734-051-0070(8) unless the Department and the applicant agree to a time extension:

(A) Time extensions fall outside the 120-day timeline; and

(B) Filing of exceptions falls outside the 120-day timeline.

(2) The Department is authorized to use agency representatives in access management contested case hearings as set forth in OAR 137-003-0545.

(3) The Department and the applicant may present additional information in writing or in person at the contested case hearing.

(4) An Administrative Law Judge will review the Region Manager’s decision, conduct a hearing, and may approve, reverse, or modify the decision. The Administrative Law Judge:

(a) Shall issue a proposed order as set forth in OAR 137-003-0645; and

(b) May require conditions or limitations to be incorporated into the Construction Permit or the Permit to Operate.

(5) The Executive Deputy Director shall issue a final order or may adopt as final the proposed order issued by the Administrative Law Judge.

Stat. Auth.: ORS 184.616, 184.619, 374.310, 374.312, 374.345 & Ch. 972 & Ch. 974, OL 1999

Stats. Implemented: ORS 374.305 - 374.345, 374.990 & Ch. 974, OL 1999, Ch. 371, OL 2003

Hist.: TO 4-2000, f. 2-14-00, cert. ef. 4-1-00; HWD 2-2004, f. 2-18-04, cert. ef. 3-1-04, Renumbered from 734-051-0400; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0500

Authority and Purpose of OAR 734-051-0500 through 734-051-0560

(1) Pursuant to ORS 374.313, a person holding an interest in real property, which is or would be served by an approach may appeal the closure or denial of the approach under OAR 734-051-0355 by filing a claim for relief when:

(a) The Department closes an approach for which a permit was issued under ORS 374.310 or that was allowed by law prior to enactment of statutory permit requirements for approach roads, or denies an application for an approach at the location of a grant or reservation of access; and

(b) Such closure or denial is not the result of conditions contained in a contract, condemnation judgment, recorded deed or permit.

(2) The Department may offer remedies upon such closure or denial.

(3) OARS 734-051-0500 through 734-051-0560:

(a) Establish administrative remedies to address issues related to real property, value, utility and use; and

(b) Provide a simplified procedure for resolving the claim.

Stat. Auth.: ORS 184.616, 184.619, 374.313 & 374.345

Stats. Implemented: ORS 374.310, 374.313 & 374.345

Hist.: TO 7-2000, f. & cert. ef. 7-14-00; HWD 8-2005, f. & cert. ef. 9-16-05; HWD 2-2007, f. & cert. ef. 1-26-07; HWD 8-2010(Temp), f. & cert. ef. 7-30-10 thru 1-21-11; HWD 1-2011, f. & cert. ef. 1-19-11; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0510

Definitions

The following definitions apply to OAR 734-051-0500 through 734-051-0560:

(1) “Claim for relief,” means an appeal of the denial of an approach application or the closure of an existing permitted or grandfathered approach under OAR 734-051-0355.

(2) “Person holding an interest in real property,” means the owner of the title to real property or the contract purchaser of such real property, or record as shown on the last available complete tax assessment roll.

(3) “Administrative remedy,” “appropriate remedy” or “remedy” mean the monetary or non-monetary benefits to a property that would address issues related to real property value, utility or uses, which include the equivalent value of:

(a) Actual physical reconnection of an approach to the highway or some other public facility;

(b) Construction of public roads or other public facilities, including frontage or utility roads, city streets, alleys or county roads;

(c) Improvements or modifications to the real property served or intended to be served by the approach, including paving of parking, restriping of lanes or parking, relocation of other traffic barriers and other items that directly address the impact to the property of the closure or denial; and

(d) Improvements or modifications to highways or other public facilities, including medians or other traffic channelization, signing or signal installation.

(4) Remedies will include any benefits derived by the property by virtue of highway improvements and highway modifications, whether or not related to the specific closure.

(5) Remedies will be limited to those necessary to serve existing uses or other uses reasonably allowed given the existing zoning of the property and other factors, including physical or geographic constraints.

(6) Remedies do not include:

(a) Reimbursement for attorney fees;

(b) Relocation expenses;

(d) Lost opportunities; or

(e) Costs not specifically related to value, utility or use of the property itself.

(7) Offers of remedies are totally discretionary on the part of the Department and are not subject to a contested case appeal.

Stat. Auth.: ORS 184.616, 184.619, 374.313 & 374.345

Stats. Implemented: ORS 374.310, 374.313 & 374.345

Hist.: TO 7-2000, f. & cert. ef. 7-14-00; HWD 8-2005, f. & cert. ef. 9-16-05; HWD 2-2007, f. & cert. ef. 1-26-07; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0520

Offer of Remedies

(1) The Department shall make a determination of whether closure of the approach or denial of an application would create issues related to real property value, utility and use, and what remedies would address those issues.

(2) The Department will provide a written statement of such remedies, if any, within 30 days of the denial of the application or notice of intent to close a permitted approach.

(3) If such remedies are acceptable to the property owner, and there is written acceptance:

(a) The property owner shall not be entitled to any other remedies for such closure or denial; and

(b) Any appeal under OAR 734-051-0355 shall be dismissed and any request for a Region Review or Collaborative Discussion pursuant to 734-051-0345 shall be withdrawn.

Stat. Auth.: ORS 184.616, 184.619, 374.313 & 374.345

Stats. Implemented: ORS 374.310, 374.313 & 374.345

Hist.: TO 7-2000, f. & cert. ef. 7-14-00; HWD 8-2005, f. & cert. ef. 9-16-05; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0530

Procedure for Resolving Claims

(1) Parties may agree to participate in mediation consistent with the applicable provisions of ORS 36.180 to 36.210 at any time during the process of determining the appropriate remedies, but prior to the final order in any contested case under OAR 734-051-0355.

(2) During mediation the parties may discuss any appropriate remedies in reaching agreement. Such mediation may also occur during the collaborative discussion phase of the review procedure for the denial or closure. (See OAR 734-051-0345).

(3) The property owner and the Department also may enter into an agreement to collaborate if the Department determines that the difference between the remedies offered and remedies claimed by the property owner is less than $30,000.

(a) The agreement to collaborate may provide for a mutually chosen mediator as defined in ORS 36.185 to 36.210 to review the information made available to each party as of that time and other information mutually agreed to by the parties.

(b) The value of the remedies offered and claimed will include a dollar value assigned by the Department to any non-monetary remedies. Such review will result in a recommendation of remedies, subject to the condition that such remedies are neither less than the lower nor more than the greater of the offer and claim, in terms of assigned monetary value.

(c) The remedies recommended by the third party will be presented to the Director or the Director’s designee. The Director or designee shall take this recommendation into consideration in making subsequent offers of remedies.

Stat. Auth.: ORS 184.616, 184.619, 374.313 & 374.345

Stats. Implemented: ORS 374.310, 374.313 & 374.345

Hist.: TO 7-2000, f. & cert. ef. 7-14-00; HWD 8-2005, f. & cert. ef. 9-16-05; HWD 8-2010(Temp), f. & cert. ef. 7-30-10 thru 1-21-11; HWD 1-2011, f. & cert. ef. 1-19-11; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0540

Appraisals

(1) Either the Department or the property owner, at their own cost, may at any time before or during the appeal of the closure or denial under OAR 734-051-0355 have an appraisal performed to assist in determining the remedies that would address the real property value, utility or use:

(a) Each party shall notify the other party of such appraisal in a timely manner; and

(b) There shall be full disclosure and sharing between the parties of any appraisal and appraisal information without the necessity of formal requests or discovery.

(2) A qualified review appraiser must review all appraisals to ensure conformance with federal and state eminent domain and access laws:

(a) The reviewer may be selected by the Department or selected jointly by way of mutual agreement of both the Department and the property owner; and

(b) The same review appraiser must review all appraisals for one effected property to ensure consistency.

(3) The Department and property owner may agree to mutually select one appraiser, share the appraisal costs and submit agreed to instructions to the appraiser:

(a) An appraisal from an appraiser selected under this section, after review as set forth in section (2) of this rule, will be presented to the Director or the Director’s designee; and

(b) The Director or designee shall take the information in the appraisal into consideration in making subsequent offers of remedies.

Stat. Auth.: ORS 184.616, 184.619, 374.313 & 374.345

Stats. Implemented: ORS 374.310, ORS 374.313 & 374.345

Hist.: TO 7-2000, f. & cert. ef. 7-14-00; HWD 8-2005, f. & cert. ef. 9-16-05; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0550

Conditions of Agreement

Reaching agreement on the appropriate remedies is contingent upon:

(1) Receipt by the Department of a recordable document relinquishing any grant or reservation of access at the location of the approach closure or approach application; and

(2) Termination of the permit for any approach which is a subject of the settlement.

Stat. Auth.: ORS 184.616, 184.619 & Ch. 972, OL 1999

Stats. Implemented: ORS 374.310 & Ch. 972, OL 1999

Hist.: TO 7-2000, f. & cert. ef. 7-14-00; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-0560

Delegation

(1) For OAR 734-051-0500 through 734-051-0560, the Director delegates authority to the Right of Way Manager or the Manager’s designee to:

(a) Determine the Department’s offer of remedies, and

(b) Agree to any settlement which includes providing administrative remedies.

(2) The actions in section (1) of this rule must occur prior to the final order in a contested case conducted under OAR 734-051-0355.

Stat. Auth.: ORS 184.616, 184.619, 374.313 & 374.345

Stats. Implemented: ORS 374.310, 374.313 & 374.345

Hist.: TO 7-2000, f. & cert. ef. 7-14-00; HWD 8-2005, f. & cert. ef. 9-16-05; Suspended by HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-1010

Authority for Rules

Division 51 rules are adopted under the director’s authority contained in ORS 374.310(1).

Stat. Auth.: ORS 184.616, 184.619, 366.290, 373.015, 374.305, 374.310, 374.312, 374.315, 374.330, 374.335, 374.990, 811.430, Sec.2, Ch. 31, OL 2010

Stats. Implemented: ORS 374.305 - 374.990

Hist.: HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-1020

Purpose and Intent of Rules

(1) Purpose. Division 51 establishes procedures, standards, and approval criteria used by the department to govern highway approaches, access control, spacing standards, medians and restriction of turning movements in compliance with statewide planning goals and in a manner compatible with acknowledged comprehensive plans and consistent with Oregon Revised Statutes (ORS), Oregon Administrative Rules (OAR), and the Oregon Highway Plan (OHP).

(2) Intent. The intent of division 51 is to provide a highway access management system based on objective standards that balances the economic development objectives of properties abutting state highways with the transportation safety and access management objectives of state highways in a manner consistent with local transportation system plans and the land uses permitted in applicable local comprehensive plan(s) acknowledged under ORS chapter 197.

(3) Oregon Highway Plan. The Oregon Highway Plan serves as the policy basis for implementing division 51, and shall guide the administration of access management rules, including mitigation and public investment, when required, to ensure highway safety and operations pursuant to this division.

Stat. Auth.: ORS 184.616, 184.619, 366.290, 373.015, 374.305, 374.310, 374.312, 374.315, 374.330, 374.335, 374.990, 811.430, Sec.2, Ch. 31, OL 2010

Stats. Implemented: ORS 374.305 - 374.990

Hist.: HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-1030

Administration of Rules

(1) Approaches Subject to Division 51. Approaches in existence and applications filed after January 1, 2012 are governed by the rules of division 51.

(2) Grandfathered Approaches. Division 51 rules do not affect existing rights of owners of grandfathered approaches, except where the rules specifically state their application to grandfathered approaches, such as the rule for changes of use of an approach under OAR 734-051-3010. An approach no longer qualifies as grandfathered once the department issues a permit to operate under division 51 rules or the department acquires access control as defined under OAR 734-051-1070.

(3) Compliance with Land Use Requirements. Approval of a property for a particular use is the responsibility of city, county, or other governmental agencies, and an applicant must obtain appropriate approval from city, county, or other governmental agencies having authority to regulate land use. Approval of an application for an approach to a state highway, or issuance of a construction permit or a permit to operate for the same, is not a finding of compliance with statewide planning goals or an acknowledged comprehensive plan.

(4) General Requirements for Notices of Appealable Decisions and Other Written Communication. The department will provide notice of appealable decisions by certified mail to the applicant. Notice of non-appealable decisions and other written communication will be by first class mail, unless written agreement is made with the applicant for such communication through electronic means such as email.

(5) Reasonable Access. Pursuant to ORS 374.310(3), the division 51 rules may not be exercised so as to deny any property with a right of access reasonable access to the highway. ORS 374.312(1)(c) requires adoption of rules establishing criteria for reasonable access consistent with 374.310(3) criteria. The rules under OAR 734-051-4020 address reasonable access solely in the context of the issuance of approach permits and do not affect whether access may be reasonable for other purposes or under other reviews.

Stat. Auth.: ORS 184.616, 184.619, 366.290, 373.015, 374.305, 374.310, 374.312, 374.315, 374.330, 374.335, 374.990, 811.430, Sec.2, Ch. 31, OL 2010

Stats. Implemented: ORS 374.305 - 374.990

Hist.: HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-1050

Delegation of Permit Authority to Local Jurisdiction

(1) Delegation of Permit Authority. The department and a local government may enter into an intergovernmental agreement setting provisions for and allowing the local government to issue approach permits for private approaches to regional and district highways, when it is determined by the department and a local jurisdiction that it is in the best interest of highway users.

(2) Application of State Requirements. Intergovernmental agreements developed pursuant to OAR 734-051-1050(1) must provide that permits issued by the local government will be consistent with the highway plan, these administrative rules, state statutes and local transportation system plans acknowledged under ORS 197.

Stat. Auth.: ORS 184.616, 184.619, 366.290, 373.015, 374.305, 374.310, 374.312, 374.315, 374.330, 374.335, 374.990, 811.430, Sec.2, Ch. 31, OL 2010

Stats. Implemented: ORS 374.305 - 374.990

Hist.: HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-1060

Transfer of State Right-of-Way to Local Jurisdiction

(1) Jurisdictional Transfer. When it is determined by the department and a local jurisdiction that it is in the best interest of highway users to abandon a segment of the state highway, the department and the local jurisdiction may enter into an agreement to transfer jurisdiction and ownership of the segment of state highway to the local jurisdiction.

(2) Funding. In addition to funds provided to a city under ORS 366.800 or to a county under ORS 366.762, the department may agree to provide funds annually to the city or county for the continued construction, repair, maintenance and improvement of the abandoned state highway from the State Highway Fund.

(3) Freight Movement. The agreement between the department and the local jurisdiction accepting jurisdiction must contain provisions to ensure that freight movement on the highway will not be restricted beyond the limits set in the agreement, consistent with ORS 366.215, unless the commission, in consultation with the freight industry and the local jurisdiction, concludes that the restriction is necessary for the safety of the highway users. Nothing in this section prevents a local jurisdiction from taking emergency action to protect safety or place weight restrictions on a structure that is failing or otherwise damaged.

Stat. Auth.: ORS 184.616, 184.619, 366.290, 373.015, 374.305, 374.310, 374.312, 374.315, 374.330, 374.335, 374.990, 811.430, Sec.2, Ch. 31, OL 2010

Stats. Implemented: ORS 374.305 - 374.990

Hist.: HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-1070

Definitions

(1) “Access Control” means no right of access exists between a property abutting the highway and the highway. The right of access may have been acquired by the department or eliminated by law.

(2) “Access Management Strategy” means a project delivery strategy developed by the ODOT project team that identifies the location and type of approaches and other necessary improvements that will occur primarily within the highway right of way and that is intended to improve current conditions of the section of highway by moving in the direction of the access management standards.

(3) “Access Management Plan” means a plan adopted by the OTC for managing a designated section of highway or the influence area of an interchange to maintain and improve highway performance and safety. It is intended to improve current and future conditions on a section of highway or interchange by moving in the direction of the access management standards and may address local street connectivity, local street improvements and local plans and land use regulations. An access management plan may be developed independent of or in conjunction with a highway or interchange project; however, an access management plan is not a highway or interchange project.

(4) “Access Mitigation Proposal” means a proposal offered by an applicant that identifies the location and type of approaches and necessary improvements to the highway and that is intended to improve current conditions of the section of highway by moving in the direction of the access management standards by combining or removing approaches resulting in a net reduction of approaches to that section of the highway. An Access Mitigation Proposal must be approved by the department and agreed to by all affected property owners, and real property interests must be recorded, before it is effective.

(5) “Alternate Access” means the physical existence of other means to access a property than the proposed approach, such as an existing public right of way, another location on the subject state highway, an easement across adjoining property, a different highway, a service road, or an alley, including singularly or as a joint approach, but without a conclusive determination that the alternate access is “reasonable” pursuant to sections (7) and (8) of OAR 734-051-4020.

(6) “Annual average daily traffic” means highway traffic volumes as reported in the most recent edition of the transportation volume tables published annually by the department.

(7) “Appealable decision” An appealable decision includes:

(a) A decision to approve or deny an application for an approach road permit;

(b) A decision to approve or deny an application for a deviation from approach road permitting standards;

(c) A decision to impose mitigation measures as a condition of approval of an approach road permit or for a deviation from approach road permitting standards;

(d) A decision to modify a construction permit through a post-review decision; or

(e) A decision to close or remove a permitted or grandfathered approach.

(8) “Applicant” means a person, corporation, or other legal entity with a legal property interest, including a lease, option or reservation of access, to land abutting the highway that applies for an approach permit or a deviation from approach road permitting standards, or their designated agent.

(9) “Application” means a completed application form for state highway approach including any required documentation and attachments necessary for the department to determine if the application can be deemed complete.

(10) “Approach” means a legally constructed connection to the highway recognized by the department as grandfathered or existing under a valid permit to operate.

(11) “Approach road” means a legally constructed, public or private connection, providing vehicular access to and/or from a highway and an adjoining property. An approach road includes a private road that crosses a state highway or a county road.

(12) “Average Daily Trips” means the total of all one-direction vehicle movements with either the origin or destination inside the study site that includes existing, primary, pass by, and diverted linked trips and is calculated in accordance with the procedures contained in Trip Generation, 8th Edition: An ITE Informational Report; and Trip Generation Handbook, 2nd Edition, both published by the Institute of Transportation Engineers (ITE). Adjustments to the standard rates in the ITE publications for mode split may be allowed if calculated in accordance with Transportation Planning Rule and the ITE procedures. Adjustments to the standard rates for multi-use internal site trips may be allowed if calculated in accordance with ITE procedures and if the internal trips do not add vehicle movements to the approaches to the highway.

(13) “Channelization” means the roadway lane configuration necessary to safely accommodate turning movements from the highway to an intersecting approach.

(14) “Classification of highways” means the department’s state highway classifications defined in the Oregon Highway Plan.

(15) “Commission” means the Oregon Transportation Commission.

(16) “Construction Permit” means a permit to construct a state highway approach including all attachments, required signatures, and conditions and terms.

(17) “Crash history” means at least the three most recent years of crash data recorded by the department’s crash analysis and reporting unit.

(18) “Day” means calendar day, unless specifically stated otherwise.

(19) “Deemed complete” means acknowledgement by the department that it has received all required information for a completed application for an approach road permit or for a request for a deviation from approach road permit standards.

(20) “Department” or “ODOT” means the Oregon Department of Transportation.

(21) “Deviation” means a departure from the access management spacing, sight distance or channelization standards.

(22) “Director” means the director of the Oregon Department of Transportation.

(23) “District highway” means a state highway that has been classified by the commission as a district highway in the Oregon Highway Plan.

(24) “Division 51” (“this division”) means Oregon Administrative Rules (OAR) 734-051-1010 through 734-051-7010.

(25) “Expressway” means a state highway that has been designated by the commission as an expressway in the Oregon Highway Plan.

(26) “Fair Market Value” means the amount in cash, or on terms reasonably equivalent to cash, for which in all probability the property would be sold by a knowledgeable owner willing but not obligated to sell to a knowledgeable purchaser who desired but is not obligated to buy.

(27) “Freeway or Expressway ramp” means all types, arrangements, and sizes of turning roadways for right or left turning vehicles that connect two or more legs at an interchange and the components of a ramp area terminal at each leg and a connection road, usually with some curvature and on a grade.

(28) “Grandfathered approach” means a legally constructed approach existing prior to 1949. A property owner has the burden to prove a driveway is grandfathered based upon existence prior to 1949. For purposes of this division, grandfathered approaches also include driveways presumed in compliance as set forth in OAR 734-051-5120(7) and driveways intended to remain open that were improved in conjunction with a department project prior to April 1, 2000, as set forth in OAR 734-051-5120(9).

(29) “Grant of Access” means the conveyance of a right of access from the department to an abutting property owner.

(30) “Highway mobility standards” mean the performance standards for maintaining mobility as adopted by the commission in the Oregon Highway Plan.

(31) “Highway peak hour” means the highest one-hour volume observed on an urban roadway during a typical or average week, or the thirtieth (30th) highest hourly traffic volume on a rural roadway typically observed during a year.

(32) “Highway segment designation” refers to three categories of designations defined in the Oregon Highway Plan: Special Transportation Areas, Commercial Centers, and Urban Business Areas.

(33) “Indenture of Access” means a deeded conveyance to the abutting property owner to change the location, width, or use restrictions of a reservation of access. Removal of a farm crossing or farm use restriction from a reservation of access requires a grant of access.

(34) “Infill” (“Infill Development”) means development of vacant or remnant land passed over by previous development and that is consistent with zoning. Infill occurs in urban areas. It may also occur in rural areas on commercial or industrial zoned land where the land has been developed into an urban block pattern including a local street network, and the posted highway speed is at or below forty-five (45) miles per hour.

(35) “Influence area of an interchange” means the area 1,320 feet from an interchange ramp terminal measured on the crossroad away from the mainline.

(36) “Interchange” means a system of grade-separated roadways that provide for the movement of traffic between two or more roadways.

(37) “Interchange Area Management Plan” means a plan to manage the safe, efficient operations, functional integrity and public investment of a grade-separated interchange. An interchange area management plan may be developed independent from or in conjunction with an interchange project and may include plans to develop local street connectivity, local street improvements and land use regulations. An interchange area management plan is adopted as a facility plan by the commission and is not in of itself an interchange project.

(38) “Intersection” means an at-grade connection of a public or private approach road to the highway.

(39) “Interstate highway” means a state highway that has been classified by the commission as an interstate highway in the Oregon Highway Plan.

(40) “Land Use Action” means an action by a local government or special district concerning the adoption, amendment or application of the statewide planning goals, a comprehensive plan provision or a land use regulation including zoning, development or subdivision codes.

(41) “Land Use Regulations” means local jurisdiction zoning and development codes, including regulation of land use, zoning, subdivisions, land partitions, access, site plans, and similar regulations adopted pursuant to ORS 197, for cities, and ORS 215, for counties.

(42) “Median” means the portion of the roadway separating opposing traffic streams.

(43) “Mitigation Measure” means an improvement, modification, or restriction set forth in OAR 734-051-3070 and required by the department or initiated by an applicant for approval of a deviation from approach road permitting standards or an application for an approach road permit.

(44) “Move in the direction of” means a change in an approach to a property abutting the highway that would bring a property closer to conformance with existing highway standards, pursuant to OAR 734-051-4020.

(45) “Oregon Highway Plan” means the Oregon Highway Plan adopted by the Oregon Transportation Commission, pursuant to ORS 184.618.

(46) “Peak hour” means the hour during which the highest volume of traffic enters and exits the property during a typical week; this definition is used only in determining whether a new application is required for change of use of an approach as set forth in 734-051-3020.

(47) “Permit to Construct” means a permit including all attachments, required signatures, conditions and terms, and performance bonds or insurance that is issued by the department to construct an approach to the state highway.

(48) “Permit to Operate” means a permit including all required signatures and attachments, and conditions and terms that is issued by the department to operate, maintain and use an approach road to the state highway. A permit to operate is not required for a public approach but the department may issue a permit to operate for a public approach upon agreement with the governing city or county.

(49) “Permittee” means a person, corporation, or other legal entity holding a valid Permit To Operate including the owner or lessee of the property abutting the highway or their designated agent.

(50) “Permitted approach” means a legally constructed private or public approach road connecting to a state highway for which the department has issued a valid permit to operate.

(51) “Planned” road or street means a highway, road, street or alley identified in an adopted comprehensive plan or transportation system plan in accordance with administrative procedures of OAR 660-012 and ORS chapter 197 but has not been constructed.

(52) “Posted speed” means the designated speed under ORS 811.180.

(53) “Prior use” of an approach means the number of peak hour or average daily trips authorized by the permit issued by the department at the date the permit to operate was issued, or number of trips recognized by the department for a grandfathered use at the date the approach was legally established. The determination of prior use may be based on a valid permit to operate, written documentation from ODOT recognizing a grandfathered use, or other written documentation establishing ODOT’s determination of prior use.

(54) “Private approach” means an approach that serves one or more properties and that is not a public approach.

(55) “Private road crossing” means a privately owned road designed for use by trucks that are prohibited by law from using state highways, county roads or other public highways.

(56) “Professional Engineer” means a person registered and holding a valid license to practice engineering in the State of Oregon, as provided in ORS 672.002 through 672.325, with expertise in traffic engineering, as provided in OAR 820-040-0030.

(57) “Project Delivery” means the allocation of resources to plan and construct new highways or modify and improve existing highways.

(58) “Public approach” means an existing or planned city street or county road connection that provides vehicular access to and from a highway. An existing city street or county road connection must be under the authority of the city or county to be considered a public approach. A planned city street or county road must be consistent with OAR 731-051-1070(51) and must be or come under the authority of the city or county to be considered a public approach.

(59) “Receipt of an application” means the date the department date-stamps an application as received.

(60) “Redevelopment” (“Infill Redevelopment”) means the act or process of changing an existing development including replacement, remodeling, or reuse of existing structures to accommodate new development that is consistent with current zoning. Redevelopment occurs in urban areas. It may also occur in rural areas on commercial or industrial zoned land where the land has been developed into an urban block pattern including a local street network, and the posted highway speed is at or below forty-five (45) miles per hour.

(61) “Region Access Management Engineer” means a professional engineer employed by the department who by training and experience has comprehensive knowledge of the department’s access management rules, policies, and procedures, or a professional engineer as specified in an intergovernmental agreement delegating permitting authority as set forth in OAR 734-051-1050.

(62) “Region Manager” means the person in charge of one of the department’s Transportation Regions or designated representative.

(63) “Regional highway” means a state highway that has been classified by the commission as a regional highway in the Oregon Highway Plan.

(64) “Reservation of Access” means a limitation of a common law right of access to a specific location where the department has acquired access control subject to restrictions that are designated in a deed. A reservation of access may include a use restriction limiting the right of access to a specified use or restriction against a specified use. A use restriction included in a reservation of access does not restrict turning movements nor does the absence of a use restriction allow unrestricted turning movements. A reservation of access affords the right to apply for an approach but does not guarantee approval of an application for state highway approach or the location of an approach.

(65) “Right of access” means the property right of an abutting property owner to ingress and egress to the roadway. A right of access includes a common law right of access, or may be conveyed through operation of law or by deed as a reservation of access, or grant of access.

(66) “Right of way” means real property or an interest in real property owned by the department for the purpose of constructing, operating and maintaining public transportation facilities.

(67) “Rule, this” (“this rule”) means the part of OAR 734, Division 51, as designated by the four-digit suffix, in which the reference to “this rule” appears. For example, this rule (“Definitions”) is OAR 734-051-1070.

(68) “Rural” means the area outside the urban growth boundary, the area outside a Special Transportation Area in an unincorporated community, or the area outside an Urban Unincorporated Community defined in OAR 660-022-0010.

(69) “Sight distance” means a length of highway that a driver can see with an acceptable level of clarity.

(70) “Signature” means the signature of the identified signer or authorized officer of the corporation or partnership and must include the name of the corporation or partnership licensed as set forth in ORS 60.111, and which maintains a registered agent and registered office in this state.

(71) “Spacing standards” means the minimum distance between approach roads as set forth in OAR 734-051-4020.

(72) “Special Use Approach” means an approach that is intended to provide vehicular access for a specific use and for a limited volume of traffic. Such uses are determined by the department and may include emergency services, government, and utility uses. Mitigation required as a part of an approach permit approval or a condition on a construction permit does not by itself create a “special use approach.”

(73) “Speed limit” means the speed established in ORS 811.111.

(74) “State highway” means a highway that is under the jurisdiction of the Oregon Department of Transportation.

(75) “Statewide highway” means a state highway that has been classified by the commission as a statewide highway in the Oregon Highway Plan.

(76) “Temporary approach” means an approach that is constructed, maintained, and operated for a specified period of time not exceeding two years, and removed at the end of that period of time.

(77) “Traffic Impact Analysis” means a report prepared by a professional engineer that analyzes existing and future roadway conditions.

(78) “Trip” means a one-way vehicular movement that consists of a motor vehicle entering or exiting a property.

(79) “Unincorporated community” means a settlement that is not incorporated as a city and that lies outside the urban growth boundary of any city.

(80) “Urban” means the area within the urban growth boundary, within a Special Transportation Area of an unincorporated community, or within an Urban Unincorporated Community defined in OAR 660-022-0010.

(81) “Vehicular Access” means the location where motorized vehicles move to and/or from a street, roadway, highway or alley and an abutting property. Vehicular access can serve a single property or be shared by multiple properties.

(82) “Work Day” means Monday through Friday and excludes holidays and days state offices are closed.

Stat. Auth.: ORS 184.616, 184.619, 366.290, 373.015, 374.305, 374.310, 374.312, 374.315, 374.330, 374.335, 374.990, 811.430, Sec.2, Ch. 31, OL 2010

Stats. Implemented: ORS 374.305 - 374.990

Hist.: HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-2010

General Provisions

(1) Right of Access Required for Private Approach. In order for the department to process an application requesting a private approach, the property for which application is made must have a right of access to the state highway as defined in OAR 734-051-1070. Where no right of access exists, an application for a grant of access must be submitted before an application for state highway approach will be deemed complete.

(2) Right of Access Required for Public Approach. Where no right of access exists a local jurisdiction must submit an application for a grant of access with its application to construct a public approach road.

(3) Request to Verify Right of Access. Upon request, the department shall verify whether a property abutting the state highway has a right of access and identify any restrictions or limitations of the right.

(4) Removal of Farm Use Restrictions. Removing a farm crossing or farm use restriction from a reservation of access requires a grant of access from the department.

Stat. Auth.: ORS 184.616, 184.619, 366.290, 373.015, 374.305, 374.310, 374.312, 374.315, 374.330, 374.335, 374.990, 811.430, Sec.2, Ch. 31, OL 2010

Stats. Implemented: ORS 374.305 - 374.990

Hist.: HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-2020

Grants of Access

(1) Grant of Access. The department may grant a right of access as provided by this rule;

(a) For a grant of access approved prior to April 1, 2000, the grant of access does not guarantee approval of an application for state highway approach or issuance of a construction permit or permit to operate; and

(b) The department may approve an application for a grant of access only when the provisions in sections (2) through (6) below are fully complied with.

(2) Restricted Areas.

(a) The department shall not approve an application for a grant of access for a private approach:

(A) On an interstate highway or freeway ramp;

(B) On an expressway or expressway ramp;

(D) In the influence area of an interchange.

(b) The department shall not approve an application for a grant of access for a public approach on a freeway, freeway ramp, or an expressway ramp.

(c) The department shall not approve an application for a grant of access to serve a public approach aligned opposite a freeway or expressway ramp or within the influence area of an interchange unless the public approach is included in an interchange area management or access management plan approved by the ODOT chief engineer and adopted by the commission.

(3) Criteria for Grant of Access for a Private Approach. The department may approve an application for a grant of access to private property abutting a state and local facility where all of the following conditions are met:

(a) An applicant submits an application for state highway approach, as set forth in OAR 734-051-3010 through 734-051-3030, with its application for a grant of access, as set forth by this rule;

(b) The applicant meets the requirements for issuance for a construction permit, as set forth in OAR 734-051-5020;

(c) The applicant agrees in writing to meet any mitigation measures, terms, and conditions placed on the approval of the grant of access, construction permit and the permit to operate;

(d) One of the following in (A) or (B) occurs:

(A) The department determines that access control is no longer needed at the location specified in the application for a grant of access as set forth in section (6) of this rule; or

(B) The applicant establishes that the grant of access will benefit the state highway system as set forth in OAR 734-051-4030;

(e) Alternate access to the property is not and cannot be made reasonable pursuant to sections (6) and (7) of OAR 734-051-4020;

(f) The property owner must agree to deed restrictions that ensure that future development intensity and trip generation can be safely accommodated by the state transportation system; and

(g) The application for a grant of access is approved by the region manager and by the state traffic engineer, and approved by the technical services manager.

(4) Criteria for Grant of Access for a Public Approach. The department may approve an application for a grant of access for a public approach to a state highway where all of the following conditions are met:

(a) A local jurisdiction submits an application for a grant of access, as set forth in sections (6) through (8) of this rule;

(b) The application meets the requirements for issuance of a construction permit, as set forth in OAR 734-051-5020;

(c) The local jurisdiction agrees in writing to meet any mitigation measures, terms, and conditions placed on any required permits;

(d) The grant of access is consistent with the Oregon Highway Plan and a corridor plan adopted pursuant to OAR 731, Division 15, or local transportation system plan, as applicable; or in the absence of an adopted corridor plan or transportation system plan, a grant of access may be considered where the local jurisdiction has explored all possible alternatives to the connection, including parallel streets, and the purchase of additional right of way;

(e) One of the following occurs:

(A) The department determines that access control is no longer needed at the location specified in the application for a grant of access as set forth in section (6) of this rule; or

(B) The local jurisdiction establishes that the grant of access will benefit the state highway system as set forth in OAR 734-051-4030; and

(i) The department may determine that a benefit to the state highway system exists where the proposed connection is a public facility with a functional classification of collector or higher and is identified in an adopted transportation system plan, consistent with OAR 660-012-0000 through 660-012-0070; or

(ii) The department shall require supporting documentation of sufficient detail to determine that a benefit to the state highway system exists, as set forth in OAR 734-051-4030, to be included in the transportation system plan; and

(iii) The department shall determine if the supporting documentation is sufficient to meet the requirements in subparagraph (ii) of this paragraph; and

(f) The department and the local jurisdiction requesting a grant of access for a public approach:

(A) Shall enter into an intergovernmental agreement that details the responsibility for construction, maintenance, operation and cost of the public approach; and

(B) May enter into an intergovernmental agreement that addresses transportation plan and land use amendments or modifications to ensure that trip generation and traffic operations from the planned development can be safely supported on the state transportation system; and

(g) The application is approved by the region manager, reviewed by the state traffic engineer, and approved by the technical services manager.

(5) Factors to Determine if Access Control is Still Needed. For the purposes of determining whether access control is still needed, per subsections (3)(e)(A) and (4)(e)(A) of this rule, at the proposed location for a grant of access, the department shall consider factors including but not limited to those in (a) through (g):

(a) Classification of the highways and highway segment designations;

(b) Spacing standards;

(d) State and local transportation system plans;

(e) Comprehensive plan and land uses in the area

(f) Safety and operational factors; and

(g) Sight distance standards.

(6) Applicant for Grant of Access. The applicant for a grant of access must be the owner of the property abutting the highway right of way or the owner’s designated agent.

(7) Complete Application for Grant of Access. A complete application for grant of access to a state highway consists of a completed and signed standard state form, a complete application for a state highway approach, including all required documentation, deposit toward processing fee for a grant of access pursuant to this rule, and a current preliminary title report covering the property to be served by the approach, showing any access easements appurtenant to the property; the department shall not process an application for grant of access that is incomplete.

(8) Fees and Deposit Toward Processing Fee. The applicant shall pay all costs incurred by the department in processing the application for a grant of access. An initial deposit to cover the processing fee is required for an application for a grant of access. The total or final processing fee is based on the actual documented costs incurred by the department plus a ten (10) percent charge for general administration:

(a) The department shall determine the amount of the initial deposit based on the complexity of the request and the anticipated cost of obtaining an appraisal of the grant of access;

(b) The initial deposit is applied towards the total or final processing fee; and

(c) The total or final processing fee includes the cost to secure an appraisal of the fair market value of the grant of access.

(9) Review Process. Upon acceptance of an application for grant of access and any required documentation, the department shall evaluate the application pursuant to division 51, ORS chapter 374, and any other applicable state statutes, administrative rules, and department manuals for evaluating and acting upon the application for a grant of access, and shall:

(a) Forward the application for grant of access to the state traffic engineer for processing pursuant to section (10) of this rule; or

(b) Based on the applicable rules, statutes, or department manuals, deny the application for grant of access.

(10) Review by State Traffic Engineer. When the application for grant of access is forwarded to the state traffic engineer, the state traffic engineer, with the assistance of department staff, shall:

(a) Evaluate the application for grant of access;

(b) Notify the applicant of any additional information required; and

(c) Make a recommendation to approve or deny the application for a grant of access to the technical services manager and the technical services manager shall conditionally approve or deny the application for grant of access subject to identified conditions of approval, and payment of the appraised value. The technical services manager shall provide written notification of the conditional decision to the applicant.

(11) Appraisal. If the application for grant of access is conditionally approved, the department shall:

(a) Appraise the abutting property to determine the fair market value of the grant of access;

(b) Notify the applicant of the value of the grant of access; and

(12) Payment for Grant of Access. Except as provided by section (13) of this rule, upon approval of an application for a grant of access and prior to issuance of the deed of the grant of access payment must be made to the department in an amount equal to the appraised value of the grant of access; this payment is in addition to the processing fee.

(13) Waiver of Payment. The department may waive payment of the appraised value of the grant of access when an application for a grant of access is for a public approach and the department has determined that the public approach will cause a direct and immediate benefit the state highway system as set forth in OAR 734-051-4030.

(14) Execution and Recording. After payment of fair market value is received by the department:

(a) The grant of access will be executed and recorded; and

(b) A copy of the grant of access will be sent to the region manager so that a construction permit may be issued in accordance with OAR 734-051-5020.

Stat. Auth.: ORS 184.616, 184.619, 366.290, 373.015, 374.305, 374.310, 374.312, 374.315, 374.330, 374.335, 374.990, 811.430, Sec.2, Ch. 31, OL 2010

Stats. Implemented: ORS 374.305 - 374.990

Hist.: HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-2030

Indentures of Access

(1) General Provisions. Abutting property owners with a reservation of access must apply to the department to indenture or change the location, width or use restrictions of the reservation.

(2) Criteria for Approval of Indenture of Access. The department may approve an application for indenture of access to a property abutting a state or local facility where all of the following criteria are met:

(a) An applicant to indenture a reservation of access for a private approach must submit an application for state highway approach permit as set forth in OAR 734-051-3030 with its application for an indenture of access as set forth in this rule;

(b) The applicant meets the requirements for issuance of a construction permit, as set forth in OAR 734-051-5020;

(c) The applicant agrees in writing to meet any mitigation measures, conditions, and terms placed on the construction permit and the permit to operate;

(d) The property owner agrees to convey one or more existing reservations of access, including the reservation being indentured to the department and close any affected approaches; and

(e) The region manager approves the application for indenture of access.

(3) Mitigation. Approval of an indenture of a reservation of access for a public approach may require mitigation measures to ensure that the state transportation system can safely accommodate the traffic operations at the indentured location. Mitigation measures may include but are not limited to amendments to the comprehensive plan or transportation system plan, or modification to the public street system.

(4) Process. The application procedures for indenture of access are:

(a) A complete application for indenture of access to a state highway consists of a completed and signed standard state form, and the processing fee for indenture of access, except where the region manager, not a designee, waives the processing fee and documents in writing the reasons for the waiver;

(b) The department shall not process an application for indenture of access that is incomplete;

(d) Upon acceptance of an application for indenture of access, the department shall evaluate the application pursuant to division 51, ORS chapter 374, and any other applicable state statutes, administrative rules, and department manuals for evaluating and acting upon the application for an indenture of access; and

(e) The region manager shall approve or deny the application for indenture of a reservation of access and shall notify the applicant.

Stat. Auth.: ORS 184.616, 184.619, 366.290, 373.015, 374.305, 374.310, 374.312, 374.315, 374.330, 374.335, 374.990, 811.430, Sec.2, Ch. 31, OL 2010

Stats. Implemented: ORS 374.305 - 374.990

Hist.: HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-3010

Permit for Private Approach

(1) Applicability. An approach permit is required for any private approach road connecting to a state highway.

(2) Restricted Areas. The department shall not issue an approach permit to a freeway, a freeway ramp, or an expressway ramp, or an approach that would be aligned opposite a freeway or expressway ramp terminal.

(3) Rules in Effect. An application for an approach permit shall be subject to the rules in effect on the date the application was filed. The department shall use OAR 734, Division 51, and ORS 374, and may use other applicable statutes or administrative rules to evaluate and act on an application.

(4) Approach Permit Approval Criteria. The department shall approve an application for an approach based upon a determination that it meets all of the following criteria:

(a) The department determines that a complete application has been submitted pursuant to OAR 734-051-3030;

(b) The applicant provides a statement of land use compatibility that is certified by the affected local jurisdiction.

(c) Except as provided by OAR 734-051-3020(6), that addresses a change of use for a private approach, or except as provided by OAR 734-051-4020(5), that addresses properties with no alternate access, the proposed approach meets the spacing, channelization and sight distance standards of OAR 734-051-4020; or the department finds that the application meets the requirements for a deviation from these standards under OAR 734-051-3050, and applicant agrees to mitigation measures, where mitigation is required pursuant to OAR 734-051-3070; and

(d) The approach does not create or contribute to a safety or highway operations concern, as identified in OAR 734-051-4020(3), or such concerns are sufficiently mitigated pursuant to OAR 734-051-3070.

Stat. Auth.: ORS 184.616, 184.619, 366.290, 373.015, 374.305, 374.310, 374.312, 374.315, 374.330, 374.335, 374.990, 811.430, Sec.2, Ch. 31, OL 2010

Stats. Implemented: ORS 374.305 - 374.990

Hist.: HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-3020

Change of Use of a Private Approach

(1) Applicability. An application is required for a change of use of an existing legal private approach to the state highway and shall be processed pursuant to OAR 734-051-3030 through 734-051-3040.

(2) Changes Of Use Requiring an Application for State Highway Approach. Except as provided under section (5) of this rule, a change of use occurs when one or more of the criteria in subsections (a) through (e), below, are met.

(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 an approach 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 approach are occurring as identified in OAR 734-051-4020(3); or

(e) The approach 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 ORS 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 ORS 811.111 or the designated speed posted under ORS 810.180. The permit holder may perform a study to determine if the 85th percentile speed is higher or lower than the speed limit established in ORS 811.111 or the designated speed posted under ORS 810.180. The sight distance measurement and the study to determine the 85th percentile speed shall be performed according to published department procedures by or under the supervision of an engineer registered in Oregon. 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;

(d) Field measurement;

(e) Crash history;

(f) Trip Generation, 8th Edition: An ITE Informational Report; and Trip Generation Handbook, 2nd Edition; both published by the Institute of Transportation Engineers (ITE); or

(g) Information and studies provided by the local jurisdiction or the applicant.

(5) Exempt from Changes Of Use Review. Buildout or redevelopment 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 project is consistent with a department approved traffic impact analysis which is less than five years old or is consistent with the future year analysis of the traffic impact analysis, whichever is greater.

(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; or

(b) The department and the applicant reach agreement that the approach moves in the direction of conforming to approach road spacing, channelization, and sight distance standards pursuant to section (7).

(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. 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 permitted, grandfathered, and unpermitted approaches on the subject site. An application moves in the direction of conformity with OAR 734-051-4020 when changes are made to an approach that include, but are not limited to, one or more of the following:

(a) Eliminating or combining existing approaches to the highway resulting in a net reduction in the number of approaches; or

(b) Improving the distance between approaches; or

(d) Widening the existing driveways to accommodate truck turning radius requirements; or

(e) Widening the existing driveways to accommodate additional exit lanes; or

(f) Narrowing the existing driveways to provide the appropriate number of entry and exit lanes as required for the property; or

(g) Developing a throat on the approach entrance 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 application approval shall permit the approaches that the department and applicant agree will remain.

(10) Where Agreement Is Not Reached. If, after participating in a collaborative process pursuant to section (7) of this rule, the applicant and the department can not agree that a proposed approach is moving in the direction of conformity pursuant to section (8) of this rule, the department shall apply the standards of OAR 734-051-4020 to approve, deny, or approve with mitigation the application for a change of use of an approach, consistent with the procedures in OAR 734-051-3040. Decisions to deny or approve with mitigation are subject to post-decision review under OAR 734-051-3080.

Stat. Auth.: ORS 184.616, 184.619, 366.290, 373.015, 374.305, 374.310, 374.312, 374.315, 374.330, 374.335, 374.990, 811.430, Sec.2, Ch. 31, OL 2010

Stats. Implemented: ORS 374.305 - 374.990

Hist.: HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-3030

Application for State Highway Approach Requirements

(1) Purpose. This rule sets forth the requirements for an application for state highway approach.

(2) Pre-Application Meetings.

(a) The department or applicant may request a pre-application meeting for any approach permit application.

(b) The purpose of a pre-application meeting is to review general application requirements and processing timelines, technical application requirements, and any issues specific to the proposal, including understanding the economic needs and objectives that are pertinent to the subject property.

(c) Requests for pre-application meetings shall be made on forms provided by the department and shall be accompanied by a preliminary site plan, description of existing and proposed land use(s), including estimated vehicle trips, and any additional information or questions the applicant chooses to provide.

(d) The department encourages applicants to provide complete and accurate information regarding potential changes in land use and development with requests for pre-application meetings in order to avoid unnecessary delays in processing any future application.

(3) Application. An application for a state highway approach permit must include the following information:

(a) Application form for a state highway approach;

(b) A site plan illustrating the existing and proposed location of all approaches, and any other buildings, facilities, and natural geographic features that impact vehicle circulation on the property, circulation to and from the highway, or sight distance;

(c) Property owner’s signature or evidence of the property owner’s consent to apply for a permit where the applicant is not the owner of the subject property;

(d) Information required by the department to evaluate sight distance concerns, including but not limited to measurements, diagrams, calculations, or other information that may require preparation by a professional engineer;

(e) Information identified by the department that is required to demonstrate compliance with the approval criteria of OAR 734-051-3010 or 734-051-3020, as applicable;

(f) Information required by the department to evaluate a deviation pursuant to OAR 734-051-3050; and

(g) A Traffic Impact Analysis (TIA) where the department determines that a TIA is required to evaluate the approach permit application pursuant with OAR 734-051-3030(4);

(h) Identification and request for approval of all deviations from spacing, channelization and sight distance standards, as applicable;

(i) The completed land use compatibility statement signed by the local jurisdiction that indicates if the proposed activity, use, or development requires land use review; and, if so, that an application to the local jurisdiction has been made and is under review or approved;

(j) Tax lot map(s) with names and addresses of persons who own the properties adjacent to the subject property.

(4) When a Traffic Impact Analysis Required.

(a) Except as provided in subsection (b) of this section, the department may require submittal of a traffic impact analysis in conjunction with an application for an approach permit, when determined to be necessary for the review of an application for a state highway approach.

(b) The department may not require a traffic impact analysis when the application does not involve a deviation from spacing, channelization or sight distance standards, and the criteria in either subsection (A) or (B) are met:

(A) The average daily volume of trips at the property is determined to be four hundred (400) or fewer trips; or

(B) The average daily volume of trips at the property is determined to be more than four hundred (400) but fewer than one thousand one (1001) trips and:

(i) The highway is a two-lane highway with average annual daily trip volume of five thousand (5,000) or fewer motor vehicles;

(ii) The highway is a three-lane highway with average annual daily trip volume of fifteen thousand (15,000) or fewer motor vehicles;

(iii) The highway is a four-lane highway with average annual daily trip volume of ten thousand (10,000) or fewer motor vehicles; or

(iv) The highway is a five-lane highway with average annual daily trip volume of twenty-five thousand (25,000) or fewer motor vehicles.

(5) Traffic Impact Analysis Submittal Requirements. Traffic Impact Analyses (TIA), when required, shall be subject to the requirements of subsection (a) through (e). To the extent possible the department shall coordinate the analysis needs associated with the application for a highway approach with any local jurisdiction TIA requirements.

(a) A Professional Engineer (PE) employed by the department shall determine the scope of the TIA, and shall determine the sufficiency of the TIA for the purpose of evaluating the application.

(b) The TIA shall assess peak hour and average daily trips for the type of land use action proposed, for the year of the analysis, the year of each phase opening, and future years beyond project completion or buildout, but not greater than the year of the planning horizon for transportation system plans, or fifteen (15) years, whichever is greater.

(c) A Professional Engineer (PE) must prepare the study in accordance with methods and input parameters approved by the department.

(d) The scope and detail of the study must be sufficient to allow the department to evaluate the impact of the proposal and the need for roadway capacity, operational, and safety improvements resulting from the proposed approach.

(e) The study must identify the data used and the application of data in the analysis.

(6) Waiver of Application Requirements. The department may waive requirements for information and documentation required under this rule depending on the nature of the application and the sufficiency of other information available to the department for its evaluation of an application.

Stat. Auth.: ORS 184.616, 184.619, 366.290, 373.015, 374.305, 374.310, 374.312, 374.315, 374.330, 374.335, 374.990, 811.430, Sec.2, Ch. 31, OL 2010

Stats. Implemented: ORS 374.305 - 374.990

Hist.: HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-3040

Approach Permit Application Review, Approvals and Timelines

(1) Complete Application Required. The department shall not process an application for state highway approach that is incomplete or contains insufficient information for the department to find that it meets the submittal requirements of OAR 734-051-3030.

(2) Notice of Completeness Determination. Upon receiving an application for state highway approach, the department shall determine whether the application is complete within thirty (30) days of its receipt of the application. Where the department determines that an application for state highway approach is not complete, (a) through (e) apply, as follows:

(a) The 120-day timeline under OAR 734-051-3040(4) does not begin until the application is made complete;

(b) The department shall notify the applicant in writing when an application is incomplete within the timeframes required by this rule;

(d) The department notice shall indicate that the application must be made complete within sixty (60) days of the date of the department notice unless the department and applicant agree to an extension; and

(e) Where an application is deemed incomplete because no right of access exists at the proposed approach location:

(A) The department notice shall provide information on how to apply for a grant of access or an indenture of access, as applicable; and

(B) The application may not be deemed complete until the grant/indenture of access process is completed.

(3) On-Site Reviews. The department in reviewing an application for completeness may conduct an on-site review to determine the need for supplemental documentation in accordance with (a) through (c) as follows:

(a) The on-site review area includes both sides of the highway in the vicinity of the proposed approach, including the site frontage, driveways, and the nearest public intersections within a distance equal to or less than the applicable spacing standard distance under OAR 734-051-4020;

(b) The department may notify the applicant of an on-site review to be conducted, and may invite the applicant to meet on-site to answer questions and discuss the review; and

(c) Any on-site meeting between department representatives and the applicant shall be limited to clarifying the applicant’s proposal and identifying any supplemental documentation needed to meet application requirements.

(4) Decision Timeline and Final Decision Within 120-Days of Complete Application. Except as provided in section (7), the department shall make its final decision, including resolution of all internal appeals, to grant or deny an approach permit within one hundred twenty (120) days of the date the department deems an application for state highway approach complete. The 120-day timeline breaks down as follows:

(a) The department shall make its decision to approve, approve with mitigation, or deny an application within thirty (30) days of the date that the department determines the application to be complete, where the proposal meets the applicable spacing, channelization and sight distance standards of OAR 734-051-4020; or

(b) The department shall make its decision to approve, approve with mitigation, or deny an application within sixty (60) days of the date that the department determines the application to be complete for all other applications.

(c) The final sixty (60) days of the one hundred twenty (120) days are reserved for the contested case hearing procedures of OAR 734-051-3110, except where the timeline is extended pursuant to section (7) of this rule.

(5) General Directives Applicable Approach Permits Decisions. The directives in (a) through (e), as follows, apply to the department’s review of all applications for state highway approach:

(a) Except for highways classified as interstate highways and highways designated as expressways by the commission, and except as provided by subsection (b) of this section, the department may not use the presence of alternate access to a property abutting a highway as a basis for denying an application for state highway approach.

(b) In rural areas, the department shall consider the presence of alternative access in determining whether to approve or deny a second or subsequent application for state highway approach.

(c) Mobility standards, established by the department, are not applicable to turning movements from private approaches during the department’s review of an approach permit application, except when the ratio of volume to capacity on the proposed private approach is (one-point-zero) 1.0 or greater.

(d) The department shall utilize an engineer with relevant experience to review and respond to evidence from a qualified expert that is submitted by the applicant.

(e) The city or county, and persons that own property adjacent to the proposed approach, shall be allowed to express concerns about the application.

(6) Notice of Pending Denial or Approval with Mitigation. When the department proposes to deny an approach or approve an approach with mitigation, under OAR 734-051-3070, it shall notify the applicant of its intent and offer the applicant a pre-decision collaborative process, pursuant to OAR 734-051-3060, to discuss the department’s position. If the applicant declines the offer of this collaborative process, the department shall issue its decision in writing with sufficient specificity regarding any safety or operations concerns upon which the department’s decision is based.

(7) Extension of Timelines. The timelines of division 51 may be extended pursuant to (a) through (c) below:

(a) Submittal of an application for a grant of access or application for an indenture of access stays the 120-day timeline for the concurrent application for a state highway approach in section (4) of this rule.

(b) Submittal of a written request for the post-decision collaborative discussion under OAR 734-051-3090 or dispute review board review under OAR 734-051-3100 stays the 120-day timeline in section (4) of this rule.

(c) The timelines in division 51 may be extended where the applicant and the department agree to an extension in writing before the applicable deadline, as specified in these rules. Any agreement to extend a timeline shall include a new deadline date and shall state the reason for the extension. Applications for which an extension of time has been issued will expire on the deadline date specified in the extension letter if no new extension has been agreed to and the activities for which the deadline was extended have not been completed.

(8) Pending Land Use Approvals. If a land use action is pending, including an appeal of a final land use decision or a limited land use decision, for a property for which an application has been submitted, the application may be processed and:

(a) Approval will be conditioned on the department receiving notice of approval of the land use action shown on the application; and

(b) The department may issue a construction permit while the local land use action is pending. A deposit may be required, to be determined in the manner used for a temporary approach in OAR 734-051-4040 to ensure that the approach will be removed if the land use is not approved; and

(c) The department shall not issue a permit to operate until the applicant provides the department with written proof of final land use decision.

(9) Notice of Decision and Findings. The department shall document with written findings the decision to approve, approve with mitigation or deny an approach, and shall provide written notice of its decision to the applicant as follows:

(a) The notice shall describe the applicant’s appeal rights, as set forth in OAR 734-051-3080 through 734-051-3110; and

(b) Written findings shall be provided to the applicant upon request.

(10) Appeals. An appeal of a department decision to approve or deny an application for an approach permit can be made pursuant to OAR 734-051-3080 through 734-051-3110.

(11) Expired Applications. Except as provided by OAR 734-051-3040(7), an application for an approach shall expire after one hundred twenty (120) days of inactivity on the part of the applicant if the department sends a reminder letter to notify the applicant that ninety (90) days have passed with no activity, and advising that the application will expire in thirty (30) days if the application continues to be inactive. After an application for state highway approach has expired, a new application is required.

Stat. Auth.: ORS 184.616, 184.619, 366.290, 373.015, 374.305, 374.310, 374.312, 374.315, 374.330, 374.335, 374.990, 811.430, Sec.2, Ch. 31, OL 2010

Stats. Implemented: ORS 374.305 - 374.990

Hist.: HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-3050

Deviations from Approach Road Spacing, Sight Distance, and Channelization Standards for a Private Approach

(1) Purpose. The purpose of this rule is to establish criteria for the region access management engineer to approve, approve with mitigation or deny requests for deviations from the standards set forth in OAR 734-051-4020.

(2) Requests for a Deviation. The applicant may request one or more deviations for an approach that does not meet spacing, sight distance, or channelization standards set forth in OAR 734-051-4020(2). Applications that request deviations:

(a) Must identify all deviations needed and any dependency or relationship that they have with one another; and

(b) Must include a traffic impact analysis prepared by a professional engineer as set forth in OAR 734-051- 3030(4) and 734-051- 3030(5), unless waived by the department.

(3) Mitigation. The department may require mitigation measures as set forth in OAR 734-051-3070 as a condition of approval of a deviation under this rule.

(4) Request for a Deviation Not Required. A request for a deviation from approach road spacing, sight distance and channelization standards is not required if:

(a) The application is for property with no means of vehicular access other than the proposed approach, and the department and the applicant agree on a location for the approach and mitigation of the approach that optimizes safety, highway operations, and site design; and

(b) The permit action is triggered by a change of use and the department and the applicant agree that the proposed approach moves in the direction of conformance with the standards as set forth in OAR 734-051-3020.

(5) Approval of Requests for Deviations from Approach Road Spacing Standards. The region access management engineer may approve a request for a deviation from the approach road spacing standards set forth in OAR 734-051-4020(8) and 734-051-4020(9) upon determining that the approach adequately addresses the safety and highway operations concerns set forth in section OAR 734-051-4020(3) and one or more of the conditions in (a) through (h) apply:

(a) The applicant agrees to provide a joint approach that serves two or more properties and results in a net reduction of approaches to the highway; or

(b) The applicant agrees to remove or combine approaches to a property resulting in a net reduction of approaches to the highway; or

(c) Adherence to approach road spacing standards will cause the approach to conflict with a significant natural or historic feature including but not limited to trees and unique vegetation, a bridge, waterway, park, archaeological area, or cemetery; or

(d) The highway segment functions as a service road; or

(e) On a couplet with directional traffic separated by a city block or more, the request is for an approach at mid-block with no other existing approaches in the block or the proposal consolidates existing vehicle accesses at mid-block; or

(f) Based on the region access management engineer’s determination that one or more of the safety and operations factors in OAR 734-051-4020(3) is significantly improved as a result of the approach; or

(g) The region access management engineer and the applicant agree on an approach location and mitigation measures that optimize safety, highway operations and site design; or

(h) The applicant demonstrates that existing development patterns or land holdings make joint use approaches impractical.

(6) Approval of Requests for Deviations from Approach Road Spacing Standards in Interchange Areas.

(a) The region access management engineer shall use a 20-year planning horizon in evaluating applications for deviations from the approach road spacing standards for approaches proposed within an interchange management area. The 20-year year planning horizon will be measured from the date of application.

(b) The region access management engineer may approve a request for a deviation from spacing standards in an interchange area upon determining that the approach adequately addresses the safety and highway operations factors set forth in section OAR 734-051-4020(3) and one or more of the conditions in (A) through (D) apply:

(A) A condition of approval, included in the permit to operate, is removal of the approach when alternate access becomes available; or

(B) The approach is consistent with an access management plan for an interchange adopted by the commission as set forth in OAR 734-051-7010; or

(C) The applicant provides a joint approach that serves two or more properties and results in a net reduction of approaches to the highway; or

(D) Approaches are combined or eliminated to result in a net reduction of approaches to the state highway.

(7) Approval of Requests for Deviations from Channelization Standards.

(a) The region access management engineer may approve a deviation to the channelization standards set forth in OAR 734-051-4020(2) upon determining that the deviation adequately addresses highway safety and operations concerns set forth in section OAR 734-051-4020(3) and the conditions in (A) or (B) apply:

(A) The region access management engineer determines that channelization is not necessary to approve the application;

(B) The applicant agrees to restrict turning movements that cause the need for channelization in a manner satisfactory to the region access management engineer.

(b) If existing development patterns, land holdings, highway configuration or other factors make it impractical to meet channelization standards, the region access management engineer may require turning movements to be restricted at the approach.

(c) The department may require submittal of channelization design drawings prepared and sealed by an engineer licensed to practice in the state of Oregon for approval of a deviation for channelization.

(8) Approval of Requests for Deviations from Sight Distance Standards.

The department may approve a deviation from sight distance standards pursuant to subsections (a) or (b):

(a) The region access management engineer may approve a request for a deviation from sight distance standards set forth in OAR 734-051-4020(2) based on consideration of relevant factors, including but not limited to:

(A) Highway design speed, posted speed, and eighty-fifth (85th) percentile speed;

(B) Probable line of sight for the proposed approach;

(D) Guidelines for intersection sight distance and stopping sight distance in the 2004 AASHTO Policy on Geometric Design of Highways and Streets; and

(E) Potential mitigation that would improve sight distance.

(b) Where a speed study prepared by the applicant and accepted by the department determines that the eighty-fifth (85th) percentile speed is lower than the current posted speed, the department may approve a deviation from the sight distance standard based upon the lower speed determination.

(9) Denial of Requests for Deviations. The region access management engineer shall not approve a request for a deviation from approach road spacing, channelization or sight distance standards when any of the conditions in (a) through (d) apply:

(a) The requirements for approval under sections (5) through (8) of this rule, as applicable, cannot be met; or

(b) The standards can be met even though adherence to the standards results in higher site development costs; or

(c) The deviation creates a significant safety or traffic operations problem that can not be mitigated by the applicant; or

(d) The request for a deviation results from a self-created hardship including but not limited to:

(A) Conditions created by the proposed site plan, building footprint or location, on-site parking, or circulation; or

(B) Conditions created by lease agreements or other voluntary legal obligations.

(10) Region Manager Approval of Deviations. The region manager may approve a request for a deviation from approach road spacing, channelization or sight distance standards when the region access management engineer is prohibited from doing so under section (9) and:

(a) A determination is made by an engineer registered in the state of Oregon and assigned by the region manager to analyze the request for a deviation determines that the approach adequately addresses the safety and highway operations concerns, or those concerns can be adequately mitigated; and

(b) The region manager, after consulting with the highway division administrator, identifies and documents conditions or circumstances unique to the site or the area that support the development.

Stat. Auth.: ORS 184.616, 184.619, 366.290, 373.015, 374.305, 374.310, 374.312, 374.315, 374.330, 374.335, 374.990, 811.430, Sec.2, Ch. 31, OL 2010

Stats. Implemented: ORS 374.305 - 374.990

Hist.: HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-3060

Pre-Decision Collaborative Discussion

(1) Offer of Pre-Decision Collaborative Discussion. When the department intends to deny an application or approve an application with mitigation, it shall notify the applicant of its intent and offer to meet with the application in a pre-decision collaborative process, as described in sections (2) through (6), below.

(2) Notice. The department notice in section (1) shall describe the basis of the preliminary decision, extend an offer to meet with the applicant to provide further explanation or clarification of the department’s preliminary decision, and provide the applicant an opportunity to propose modifications.

(3) Goals of Pre-Decision Collaborative Discussion. The goals of the pre-decision collaborative process are to ensure that all relevant information has been fully considered, provide opportunity to resolve differences to the extent possible, and to facilitate timely issuance of a final decision.

(4) Timeline. The department’s notice of preliminary decision and offer of a collaborative process must occur within either the 30-day or 60-day application decision timeline under OAR 734-051-3040(4), whichever is applicable. The department and applicant may agree to extend the timelines for the department’s final decision as part of the collaborative process.

(5) Written Decision. Agreements reached using a pre-decision collaborative discussion shall be incorporated into the department’s permit decision.

(6) Applicant May Decline Offer. If the applicant declines the offer of a collaborative process, or a collaborative agreement cannot be reached, the department shall issue its final decision to deny or approve with mitigation in writing with sufficient specificity regarding any safety or operations concerns upon which the department’s decision is based to allow the applicant to respond.

Stat. Auth.: ORS 184.616, 184.619, 366.290, 373.015, 374.305, 374.310, 374.312, 374.315, 374.330, 374.335, 374.990, 811.430, Sec.2, Ch. 31, OL 2010

Stats. Implemented: ORS 374.305 - 374.990

Hist.: HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12

734-051-3070

Mitigation Measures