R930-6-10. Conditions of Right-of-Way Use

  (1) General.

  (a) This section describes conditions that apply to all connections, encroachments, and uses of the state highway right-of-way. The conditions and requirements of this section are in addition to other conditions, limitations, and requirements of this rule and the conditional access permit and encroachment permit.

  (2) Right-of-way encroachment requirements.

  (a) Prohibited right-of-way uses. The state highway right-of-way shall not to be used by anyone other than the Department for servicing vehicles or equipment, displays, sales, exhibits, business overhang signs, parking areas, banners, or any other form of advertising, or conducting of private business.

  (i) The Department at its sole discretion may waive the provision of (2)(a) for electric vehicle charging stations, approved park and ride lots, and dedicated meter parking stalls only in instances where a formal written agreement has been agreed upon and executed between the Department and the local government within which the waiver is requested.

  (b) Buildings and structures. The placement of buildings or structures of any type within state highway rights-of-way is not allowed unless authorized by a permit obtained from the Department.

  (c) Special advertisement may be allowed within the state highway right-of-way if it will not compromise traffic flow or safety and will be in the public interest. An approved encroachment to occupy the right-of-way for such advertising may be issued, for a time not to exceed one week. All such special advertisement shall not conflict with any provisions of Utah's Outdoor Advertising Act.

  (d) Mailboxes. Installation of new mailboxes must be approved by the appropriate Department Region Director or an authorized representative. All new mailboxes placed within a state highway right-of-way must be constructed in conformance with UDOT standard drawings. Existing mailboxes located within the state highway right-of-way must be maintained or corrected to conform to the Department standards. Owners of mailboxes deemed nonconforming shall be notified in writing by the Department Region Director or an authorized representative. Within thirty days of receipt of notice, the owner must, at its own expense, reconstruct the mailbox or otherwise correct any deficiencies to conform to current safety standards and regulations of the Department. The Department may contact the postmaster and stop delivery of mail until compliance is achieved. Mailboxes may be deemed nonconforming for the following:

  (i) Mailboxes that constitute a traffic hazard are considered nonconforming.

  (ii) Mailboxes and supports that are in poor repair and detract from the appearance of the highway may be considered nonconforming.

  (iii) Any part of a mailbox that is over 50 inches high is considered nonconforming

  (iv) Any part of a mailbox that is located within the shoulder is considered nonconforming.

  (v) Mailbox supports that exceed any of the following criteria are considered nonconforming:

  (A) Wood support with over 16 square inches cross-sectional area.

  (B) Metal support with greatest dimension over 3.5 inches.

  (C) Metal pipe support of over 2 inches in diameter.

  (D) Other metal supports deemed to be a hazard by the appropriate Department Region Director or an authorized representative.

  (e) Special limitations. All encroachments on state highway, including permits issued for special encroachment, are subject to the following conditions and limitations:

  (i) Red or reddish colored lights. Red or reddish colored decorations or advertising lights are prohibited within the right-of-way.

  (ii) Clearance over highway surface. Any decoration, display, flag, banner, colored light, handbill, structure or other advertising or decoration item placed within the right-of-way must have a minimum vertical clearance of 20 feet.

  (iii) Utility poles. No decorations, displays, flags, banners, colored lights, handbills, structures or other advertising or decoration items may be attached to a utility facility without written permission of the appropriate entity or owner.

  (iv) Highway control obstructions. No decoration, display, flag, banner, colored light, handbill, structure or other advertising or decoration item may block the normal view of any official highway sign or other traffic control device and signals.

  (v) Shapes similar to highway control devices. No decoration, display, flag, banner, colored light, handbill, structure or other advertising or decoration item may be of such shape, size, color or design similar to any Department traffic control sign, signal, marking or device.

  (vi) Attachments to traffic signals. No attachments of any type may be allowed on traffic signals.

  (vii) Sight obstructions. No decoration, display, flag, banner, colored light, handbill, structure or other advertising or decoration item may obstruct the normal view of traffic nor may obstruct, impede or endanger the normal flow of traffic. In accordance with Utah Code Section 41-6a-216 "Removal of plants or other obstructions impairing view, Notice to owner - Penalty," owners of real property next to state highway rights-of-way shall be ordered to remove any trees, plants, shrubs, or any other obstructions that obstruct the view of motorists and thereby constitute a hazard.

  (3) Department changes to existing access.

  (a) The Department may, when necessary for the improved safety and operation of the roadway, rebuild, modify, remove, or relocate any access or redesign the highway including any auxiliary lane and allowable turning movement.

  (i) The Department shall notify the permittee or current property owner of the change.

  (ii) Changes in roadway median design that may affect turning movements normally does not require a hearing because a conditional access permit approval confers no private rights to the permittee regarding the control of highway design or traffic operation even when that design affects access turning movements.

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

  (4) Permittee requirements and limitations.

  (a) Conditional access permit limitations. An approved conditional access permit conveys no rights, title, or interest in state highway rights-of-way to the permittee or property served. A conditional access permit for direct access to a state highway does not entitle the permittee to control or have any rights or interests in any portion of the design, specifications or operation of the highway or roadway, including those portions of the highway built pursuant to the terms, conditions and limitations of the conditional access permit.

  (b) Completion requirements. Prior to using the access, the permittee is required to complete the construction according to the terms, conditions and limitations of the conditional access permit and required encroachment permit. Department approval is required if the permittee wishes to use the access prior to completion.

  (c) Access transferability and maintenance. The permittee, his or her heirs, successors-in-interest, assigns, and occupants of the property serviced by the access is responsible for meeting the terms, conditions and limitations of the permit, including, but not limited to the following maintenance requirements:

  (i) Ensuring that the use of the access to the property is not in violation of this rule and terms, conditions and limitations of the permit.

  (ii) Repairing and maintaining the access beyond the edge of the roadway, including any cattle guard and gate.

  (iii) Removing or clearing snow or ice upon the access, including snow or ice deposited on the access in the course of Department snow removal operations.

  (iv) Repairing and replacing any access-related features within the right-of-way, including culverts. Any significant repairs, such as culvert replacement, resurfacing, or changes in design or specifications requires authorization from the Department.

  (d) Notification of changes. The permittee shall contact the Department if changes are made or will be made in the use of the property which would affect access operation, traffic volume, or vehicle type to determine if a new conditional access permit is required.

  (e) Indemnification requirements. Permittees must, at all times, indemnify and hold harmless the Department, its employees and the State of Utah from responsibility for any damage or liability arising from their construction, maintenance, repair, operation, or use of an access or other facility.

  (f) Insurance, bonding and letter of credit requirements. The permittee is responsible for the maintenance of the construction performed within the state highway right-of-way for a period of three years from the date of beginning work or two years from the end of work, whichever provides the longer period of coverage.

  (i) Insurance. Permittee is required to maintain minimum liability insurance as specified in Utah Administrative Code R930-7-6.

  (ii) Bonding. As authorized by Utah Code Subsection 72-7-102(3)(b)(i) this rule requires encroachment permit applicants to post a performance and warranty or maintenance bond, using the Department's approved bond form as specified in Utah Administrative Code R930-7-6.

  (iii) Proceeds Against Bond. The Department may proceed against the bond to recover all expenses incurred if payment is not received from the permittee within (45) forty-five calendar days of receiving an invoice. Upon discovery of permittee caused damage to the highway or to the right-of-way, the Department may opt to exercise its bonding rights in recovering costs incurred to restore the highway or right-of-way due to permittee caused damages. Failure by the permittee to maintain a valid bond in the amounts required shall be cause for denying issuance of future permits and for the closure of the access to from the state highway right-of-way.

  (iv) Letter of credit. For small projects, the Department may accept an irrevocable letter of credit as reasonable security in lieu of bonding. A letter of credit shall be issued by a federally insured bank authorized to do business in Utah and shall be placed in the possession of and payable upon demand only to the Department. A letter of credit shall be irrevocable during its terms and shall be automatically renewable, or the applicant shall insure continuous coverage by replacing letters of credit, if necessary, at least (30) thirty days before the expiration date with other acceptable bond types or letters of credit.

  (5) Existing interests.

  (a) Historical interest. The Department recognizes that pre-existing property interests within the state highway rights-of-way may exist. Proof of a pre-existing property interest within a public right-of-way must be provided to the Department in the form of a duly executed deed, grant or other document establishing the same are required to establish prior right or title of the entity or person. In the absence of such proof, it shall be assumed that the entity or person occupies the right-of-way under permit (i.e., by permission), and enjoys no vested interest in the state highway right-of-way. In those instances when the Department requires an entity or person with a pre-existing property interest to move completely or partially off the right-of-way, the Department shall make appropriate remuneration for the relinquishment of that interest.

  (i) The adoption of this rule by the Department does not constitute an acceptance or recognition of pre-existing property interests.

  (ii) The Department assumes no liability associated with these interests and uses; either for the safety to users or the traveling public, damage to property, or for the continued use thereof.

  (b) Parcel division. No additional access rights may accrue upon the splitting or dividing of existing parcels of land or contiguous parcels under or previously under the same ownership or controlling interest.

  (c) Permittee improvement of existing access. The property owner or authorized representative served by a lawful access may make physical improvements to the access per the requirements of this rule and only with the written permission of the Department. Denial of the application for improvements does not constitute revocation of the existing access authorization. Denial of an application to enlarge, relocate, or modify an existing lawful access, in no way impairs the permit for or right to the existing access for its legal historical use.