ORS 374.312 Rules regarding permits for approach roads; intergovernmental agreements

It is the intent of the Legislative Assembly to develop a highway access management system based on objective standards that will balance 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 the local comprehensive plans acknowledged under ORS chapters 197 and 197A. The Department of Transportation shall comply with the legislative directives, objective standards and procedures established in this section for the governance of the process for application by and the issuance of approach permits to owners of property abutting the highway and shall adopt rules consistent with this section.

The department shall make its final decision, including resolution of all internal appeals, to grant or deny an approach permit within 120 days of the date the department deems an application for an approach permit complete, unless the applicant and the department agree to an extension.

The department shall make its decision to grant or deny an approach permit based on the provisions of this section, the spacing, channelization and sight distance standards described in ORS 374.311 or the standards and criteria in effect on the date that the application was filed.

A new approach permit for a change of use of an approach is required for a private approach if:

The number of peak hour trips increases by 50 trips or more from that of the property’s prior use; or

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 described in subparagraph (A)(i) or (ii) of this paragraph represents a 20 percent or greater increase in the number of peak hour trips or the number of trips on a typical day from that of the property’s prior use;

The daily use of a private approach increases by 10 or more vehicles with a gross vehicle weight rating of 26,000 pounds or greater;

The department demonstrates that safety or operational problems related to the approach are occurring on a highway as provided in subsection (10)(g) of this section. Any required mitigation measures shall be limited to addressing the identified safety or operational problems; or

The approach does not meet the stopping sight distance standards of this section, as measured in feet, of 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 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.

When a change of use of an approach permit is required under subsection (4) of this section, the department shall approve an application if the application proposes an approach that moves in the direction of conforming with the spacing, channelization and sight distance standards described in ORS 374.311, subject to consideration of safety and highway operations.

Whether the application moves in the direction of conforming with the spacing, channelization and sight distance standards described in ORS 374.311, while not posing safety or highway operations concerns, shall be established by the department and the applicant using a collaborative process, as established by department by rule, that is made available to the applicant within 30 days of the date the department determines an application to be complete.

Applications that are deemed to be moving in the direction of conforming with the spacing, channelization and sight distance standards described in ORS 374.311 do not require separate deviations from those standards.

For the purposes of this subsection, an approach moves in the direction of conforming with the spacing, channelization or sight distance standards described under ORS 374.311 if one or more changes are made to the approach that include, but are not limited to:

Eliminating or combining existing approaches to the highway resulting in a net reduction in the number of approaches to the highway.

Improving the distance between approaches.

Improving the sight distance between approaches.

Widening the existing driveways to accommodate truck turning radius requirements.

Widening the existing driveways to accommodate additional exit lanes.

Narrowing the existing driveways to provide the appropriate number of entry and exit lanes as required for the property.

Developing a throat on the approach entrance to allow for more efficient movement of motorists from the highway.

The department shall approve applications that meet the spacing, channelization or sight distance standards described in ORS 374.311 subject only to consideration of safety and highway operations concerns as provided in subsection (10)(g) of this section and the traffic impact analysis requirements described in ORS 374.314.

Applications that do not meet the spacing, channelization or sight distance standards described in ORS 374.311 may be approved with deviations from those standards as follows:

A request for one or more deviations from the spacing, channelization or sight distance standards described in ORS 374.311 may be included in an application for one or more private approaches that do not meet the standards.

Unless waived by the department, a request for a deviation must include a traffic impact analysis provided by the applicant that addresses a request for deviations from the spacing, channelization or sight distance standards described in ORS 374.311 for safety and highway operations.

A request for a deviation may be approved based upon a determination by the engineer assigned by the department to analyze the request for a deviation that the approach adequately addresses the safety and highway operations concerns identified by the department as provided in subsection (10)(g) of this section.

Where a speed study prepared by an applicant and agreed to by the department determines that the 85th percentile speed is lower than the current posted speed, the department may grant a deviation from sight distance standards based upon the lower speed determination.

If a property has a right of access and there is no means of access to the property other than the state highway, an approach that does not meet the spacing, channelization or sight distance standards described in ORS 374.311 does not need a deviation from the standards if the department and the applicant agree on a location of the approach that optimizes safety, highway operations and site design.

Except as otherwise provided in this section, the following procedures apply to all applications for an approach permit:

The department shall determine whether an application for an approach permit is complete within 30 days of receipt of the application.

The department shall approve an application, approve an application with conditions or deny an application:

Within 30 days of the date that the department determines the application to be complete, for applications that meet spacing, channelization or sight distance standards described in ORS 374.311; or

Within 60 days of the date that the department determines the application to be complete for all other types of applications.

The department may impose reasonable conditions to mitigate safety or highway operations concerns identified by the department in its review of the application, as provided in subsection (10)(g) of this section.

When the department proposes to deny an approach permit application or approve an application with conditions, the department shall notify the applicant of its intent and offer the applicant a collaborative process established by the department by rule.

If the offer of a collaborative process is declined, the department shall issue its decision in writing with sufficient specificity regarding any safety or highway operations concerns upon which the department’s decision is based to allow the applicant to respond.

The department’s decision shall advise the applicant of the applicant’s rights for dispute resolution processes to resolve issues relating to the department’s decision as set forth in ORS 374.355.

The following directives apply to all applications for an approach permit:

All applications are required to meet sight distance standards described in ORS 374.311 (6) except as otherwise provided in this section or unless a deviation is otherwise approved by the department.

Except for highways classified as interstate highways and highways designated as expressways by the Oregon Transportation Commission, the department may not use the presence of alternate access to a property abutting a highway as a basis for denying an approach permit application, except in rural areas where the presence of alternative access is a consideration in determining whether to approve or deny a second or subsequent approach permit application.

The department may not impose nontraversable medians as a mitigation measure for approach permit applications unless the department first establishes that no other mitigation measures are effective or available under the circumstances.

Mobility standards, established by the department by rule, are not applicable to turning movements from private approaches during the department’s review of approach permit applications, except when the ratio of volume to capacity on the proposed private approach is 1.0 or greater.

The department may not require an applicant to submit a traffic impact analysis except as provided in ORS 374.314.

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.

The department shall have the burden of proving any safety or highway operations concerns relied upon in the department’s decision to approve an application with conditions or deny an application. Safety or highway operations concerns that may be applied to the department’s permit decisions on applications submitted under this section are limited to one or more of the following unique safety and highway operations concerns:

Regular queuing on the highway that impedes turning movements associated with the proposed approach.

Offset approaches that may create the potential for overlapping left turn movements or competing use of a center turn lane.

Insufficient distance for weave movements made by vehicles exiting an approach across multiple lanes in the vicinity of signalized intersections, roads classified by the Oregon Transportation Commission as collectors or arterials and on-ramps or off-ramps.

Location of the proposed approach within a highway segment with a crash rate that is 20 percent higher than the statewide average for similar highways.

Location of the proposed approach within a highway segment listed in the top five percent of locations identified by the safety priority index system developed by the department.

Inadequate sight distance from an intersection to the nearest driveway on district highways and regional highways where the speed limit established in ORS 811.111 or the designated speed posted under ORS 810.180 is 50 miles per hour or higher.

The department shall use the criteria for determining what constitutes reasonable access as specified in ORS 374.310.

The department shall make its decision to grant or deny an approach permit on the record. When the department denies an application or approves an application with conditions, the department shall issue findings specifying the basis of the decision for the record. The department shall adopt rules specifying the form of the record.

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 regional and district state highways. The agreement must provide that permits issued by local governments will be consistent with the highway plan and administrative rules adopted by the department, with state statutes and with the local transportation system plan acknowledged under ORS chapters 197 and 197A. The department shall adopt rules specifying the circumstances under which authority will be delegated to a local government.

The department shall develop a program that allows a person that might be affected by the issuance of the permit, but that is not the owner of the property subject to the permit, to express concerns to the department prior to the issuance of the permit. For purposes of this subsection, persons that might be affected by the issuance of the permit are the city or county in which the road is located and any person that owns property adjacent to the proposed access. Nothing in this subsection gives a city, county or other person that might be affected standing to appeal any decision of the department regarding granting of the permit.