No. 31894 (Amendment): R933-3. Relocation or Modification of Existing Authorized Access Openings or Granting New Access Openings on Limited Access Highways

DAR File No.: 31894
Filed: 08/25/2008, 04:03
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to: 1) enable the Department to meet the legislatively mandated 45-day time period for approving, modifying, denying, or appealing the modification or denial of a permit for approach roads and driveways; 2) accurately reflect the day-to-day operations and policies of the Department; and 3) allow for an independent appraisal to avoid conflicts of interest.

Summary of the rule or change:

The changes: 1) include the establishment of new or existing highways as limited access facilities in the rule; 2) eliminate the maximum number of five accesses per mile; 3) eliminate access management standards that may conflict with Rule R930-6; 4) change appraisal procedures from in-house right-of-way appraisal to a Department-approved independent appraiser; 5) shift the burden of initiating an appraisal from the Department to the developer in order to comply with Section 72-3-109; 6) eliminate need for property owner to show a public benefit from new accesses on limited access facilities; 7) clearly define the procedures to modify an existing access; and 8) establish criteria to define local city, county, and municipal connections onto a limited access facility.

State statutory or constitutional authorization for this rule:

Sections 72-3-109, 72-1-201, 72-5-110, 72-5-404, 72-6-117, 72-7-103, 78-34-10, 78-34-20, and 72-7-102

Anticipated cost or savings to:

the state budget:

The annual approximate average savings to the state budget: $13,500. The annual average cost to the state budget: $0. In making the above determination, the agency looked at what the agency was spending on appraisals. The rule shifting the cost to the land owner to pay for their own appraisal will give the state the estimated savings described above.

local governments:

The annual average cost savings to local government entities: $0. The estimate is based on what local governments paid during the past several years.

small businesses and persons other than businesses:

The annual average cost to small businesses and persons other than small businesses will be the cost of an appraisal paid by a land owner. The average appraisal cost is approximately $350 per appraisal.

Compliance costs for affected persons:

These revisions will not have any new impacts to affected persons. The revisions will, however, shift some responsibilities from the Department to the applicant in order to ensure the Department can comply with Section 72-3-109.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule will shift the fiscal responsibility of obtaining an appraisal of privately held land from the State of Utah to the land owner/developer. John Njord, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Transportation
Preconstruction, Right-of-Way Acquisition
CALVIN L RAMPTON COMPLEX
4501 S 2700 W
SALT LAKE CITY UT 84119-5998

Direct questions regarding this rule to:

Maureen Short at the above address, by phone at 801-965-4026, by FAX at 801-965-4338, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/15/2008

This rule may become effective on:

10/22/2008

Authorized by:

John R. Njord, Executive Director

RULE TEXT

R933. Transportation, Preconstruction, Right of Way Acquisition.

R933-3. Establishing New or Existing Highways as Limited Access Facilities and the Relocation or Modification of Existing Authorized Access Openings or Granting New Access Openings on Limited Access Highways.

R933-3-1. Authority.

The provisions of this rule are authorized by grants for rulemaking authority Utah Code Ann. Sections 72-1-201, 72-3-109, 72-5-110, 72-5-404, 72-6-117, 72-7-103, 78-34-10, 78-34-20, and 72-7-102.

 

R933-3-2. Purpose.

To establish a procedure for allowing and establishing new or existing highways as limited access facilities, [for the elimination of intersections and for the right to access restricted facilities]and to establish procedures for new access openings and the relocation and/or modification of existing access openings on limited access highways.

 

R933-3-4. When Access is Controlled.

(1) Limited access control for highways classified as principal arterials [highways ]other than the interstate system and expressways [shall]may be obtained in all rural areas and in urban areas if the highway is being constructed on new alignment or if the existing highway is in sparsely developed areas where control is desirable and economically feasible. Control in urban areas on existing alignments shall not be allowed unless approved by the Utah Transportation Commission.

(2) In addition to the limited access control of principal arterial highways, [a limited mileage of high volume ]minor arterial highways may justify limited access control.[, especially] If on new alignment and/or if adjacent to a freeway interchange. [Except for minor arterial highways adjacent to a freeway interchange, control shall not be established if the road is less than one mile in length. Access,]The establishment of limited access control on a new alignment,if desirable and economically feasible, shall be determined on an individual basis and is subject to approval of the Utah Transportation Commission.

(3) Under limited access control, the following limitations shall apply:

(a) The maximum feasible and economic access control shall always be obtained.

(b) On bypasses of cities and towns, all property access shall be prohibited except where the bypass is in a [low]rural population town with [little or no business and inadequate]insufficient public crossroads for property access.

[(c) On other than bypass roads, a maximum of five accesses per mile on each side of the highway may be granted. Unless justified under this rule, accesses to property shall only be granted opposite to each other.

(d)](c) Where any one property has access to another public road or roads, no access shall be given closer than 1/2 mile [from]of the public road.

(d) When any one property already has access to the limited access facility no additional access shall be within 1/2 mile of another public road or roads[ nor shall any two granted accesses be closer than 1/2 mile] with the following exception: An access opening may be provided [W]where the proposed project involves reconstruction on or near an existing highway where a home, business or other property development is located and the reconstruction may result in a lack of direct access. [to a home, business or other property development]and would involve excessive property damage and added construction costs.[, in which case access openings may be provided within the other stated limitations.

(e) No property access shall be closer than 500 feet from another property or public road access.

(f) In order to eliminate public road access, study shall be made in conjunction with local authorities as to feasibility of dead ending or rerouting of intersecting roads.]

[(g)](e) The maximum size of private access openings shall [be 16 feet for residences, 30 feet for farms or other areas where large equipment is used, and 50 feet for commercial and industrial areas]be determined as per Administrative Rule R930-6.

(4) Exceptions to the [above ]limitations may[shall only] be [made]granted by following the variance request process in Administrative Rule R930-6[ if a careful appraisal reveals extensive damage or if needed frontage roads would involve excessive right of way costs or, in canyons, excessive construction costs]. Detailed reports of costs and justification for a variance shall be prepared and submitted by the applicant to the [assistant ]Deputy D[d]irector for approval or denial.

 

R933-3-5. Designation of Access Location.

(1) The Utah Department of Transportation Right of Way Division shall [conduct a study and prepare detailed right of way maps, to be used by the Utah Transportation Commission to make final access location determination. The study shall include the location of and justification for current access openings and property owners shall be contacted to determine development plans for the property. The Right of Way Division shall prepare cost estimates for proposed and alternate access locations. The Utah Transportation Commission ]shall make final access location determination in accordance with Administrative Rule R930-6.

(2) [The]Any access openings granted by the Department shall be accurately described in the property deed[ and shown on right of way maps and roadway construction plans]. The deed shall include property usage, access width, and location.

[(3) After execution of the deeds, no change shall be made in the access location or additional access openings granted except as provided below.

(4)](3) If a portion of a property which has no access to the highway is later sold, the department has no obligation to grant an access to the property[ and if inquiries are made, a prospective buyer should be definitely so advised].

 

R933-3-6. [Revision of]Changes to Existing Access Openings.

(1) If a property owner desires to change the location, land usage or size of an existing access opening[, after execution of the deed, a written request]an application shall be submitted to the appropriate region permit office[department giving location of desired change and its justification]. Changes shall comply with this Rule and Administrative Rule R930-6[the limitations as to spacing in the limited access control policy].

(2) The [r]Region [d]Director, in consultation[cooperation] with the regional access review panel[engineer for safety], shall determine if the change in location, usage or size will cause any adverse safety or other traffic operational effects and submit a [report with ]recommendation[s] to the [assistant director]Deputy Director.

(3) If the change is approved by the [assistant d]Director [and on federal-aid roads by the Federal Highway Administration, ]new deeds shall be prepared and executed and all maps corrected. If the proposed access is on a federal aid highway, the Federal Highway Administration must also concur with the Deputy Director's approval prior to implementation.

(4) The property owner shall pay for all costs as described in section 7, including the appreciation of the property as a result of a change in access[involved in closing or modifying an existing access opening].

 

R933-3-7. New Access Openings.

(1) [Only in cases where significant public benefit will result will new access openings be granted. ]Access rights are purchased and are considered an asset, the same as purchased property, and can be disposed of the same as real property. An[y additional] access will not be [considered]granted if not in compliance with this rule.

(2) An access application[The request] shall be submitted by the property owner or public agency [in writing ]to the [d]Department[, detail as to public benefit and other justifications].

(3) Before granting an access opening, safety and other operational features shall be investigated by the [r]Region [d]Director or an authorized representative[and the engineer for safety] and a written report and recommendation[s] made.

(4) [If the access opening is granted, t]The appreciation of the private property as a result of the new access[involved] shall be determined by an appraisal from a UDOT approved appraiser and will be reviewed by the Right of Way Division, or another UDOT approved appraiser.

(5) Based on the findings, the [executive ]Deputy D[d]irector [of transportation ]shall make a decision on the request. If the proposed access is on a federal aid highway, the Federal Highway Administration must also concur with the Deputy Director's approval prior to implementation.[On federal-aid roads, concurrence of the Federal Highway Administration shall be obtained if the access opening is recommended by the executive director of transportation.]

(6) If the access opening is approved [and is to serve private property, ]the property owner shall pay the [d]Department for property appreciation, resulting from the department's relinquishment of the access rights.[, as determined by the executive director and the Federal Highway Administration] The amount of payment due to the Department shall be the Department approved amount of the appraisal referenced in Section 7 subsection 4.

(7) [On the federal-aid roads t]The property owner shall also pay all costs, including but not limited to, appraisal, [for ]construction of gates, approaches, roadway improvements, and any other incidental construction costs involved.

(8) Any access openings granted by the Department shall be accurately described in the property deed. The deed shall include property usage, access width and location.[The deed shall be executed describing the access opening and all maps and plans shall be revised. This procedure applies to roads constructed with federal-aid funds, which will remain on a federal-aid system and be transferred to local authorities.

(9) Requests for modification of access control shall be forwarded with recommendations to the Utah Department of Transportation by the local authority.]

 

R933-3-8. Local City, County and Municipal Connections to Limited Access Roads.

(1) The Department may waive payment for access rights for local municipal or County roads connecting to Limited Access Highways. In order to qualify as a connecting City, County or municipal road all of the following criteria must be met:

Road must be a part of a local corridor master plan.

Road must service multiple property owners and provide multiple accesses to farms, residences, businesses and other abutting properties.

Road must provide continuity to another State, local, County or municipal road and may not dead-end into a parking lot cul-de-sac or other private property.

(2) The Department may not waive payment for access rights for a road developed for the sole purpose of benefiting single or multiple landowners, developments, or corporations. If abutting land values increase due to the proposed access, the Department may require payment for access rights as per sections 6 and 7.

[R933-3-8. Document Responsibility.

(1) The Right of Way Section shall prepare submittals, documents and maps to the Federal Highway Administration. The deeds shall be prepared by the region. The Right of Way Division will be responsible for all plan corrections.

(2) Federal Highway Administration's approval is required if construction of the road was a federal-aid project though the right of way was nonparticipating.]

 

R933-3-9. Enforcement of Access Control.

(1) Highways with limited access control [should]may be marked by the department with public property plates on fences at sufficient intervals to clearly indicate to maintenance personnel the limits of access control.

(2) The station foreman shall be responsible for surveillance of these sections of fence as to any activity in modifying existing access openings or construction of new openings. Any modifications to an access opening shall be immediately reported to the [r]Region [d]Director. The [r]Region [d]Director shall designate personnel to contact the property owner and require the owner to repair, remove or replace any fence damaged and also remove any roadway approach material placed.

 

KEY: limited access highways

Date of Enactment or Last Substantive Amendment: [1990]2008

Notice of Continuation: November 29, 2006

Authorizing, and Implemented or Interpreted Law: 72-1-102; 72-1-201; 27-12-114; 72-7-102