R930-6-9. Conditional Access Permit Variances

  (1) General.

  (a) This section describes procedures and requirements for applicants to request a variance from the standards and requirements of this rule relating specifically to conditional access permits.

  (b) Variations from provisions of this rule may be allowed if they do not violate state and federal statutes, laws, or regulations and the Department has determined the proposed applicant mitigation measures documented in a variance request are sufficient for the safety and operation of the of the state highway.

  (2) variance format.

  (a) A variance may be considered for any design standard of this rule that is not applicable or feasible given the proposed physical and operational characteristics of the site. Applicants seeking a variance from the standards and requirements of this rule must submit a thoroughly detailed variance request using the Department's Variance Request Form. The Department may allow a request for a variance as a supplement to a previously submitted application if the Department determines that it is in the public interest to do so.

  (i) General requirements. The applicant is responsible to demonstrate that the variance request meets minimum acceptable engineering, operation, and safety standards. It must also demonstrate it is not detrimental to the public health, welfare, and safety and that it is reasonably necessary for the convenience and welfare of the public.

  (A) The request for a variance must specify, in writing, why the variance is appropriate and necessary. The request must include documentation of conditions with and without the variance including all practical mitigation alternatives. This documentation must demonstrate that better alternatives in terms of highway operations are impracticable or do not exist.

  (B) The applicant must show that the variance request results from the application of the standards or requirements of this rule and is not self-created or self-imposed. For example, the applicant acting with or without knowledge of the applicable standard, requirement, or purchasing the property with no access or existing access.

  (ii) Existing non-conforming access. Non-conforming modifications to an existing highway access that is either in use or can demonstrate historical use and does not comply with the provisions of this rule, may be allowed when the applicant demonstrates to the Department that the proposed access point(s) modifications will improve the operation and safety of the highway. Consolidation of existing access points is considered a public benefit to highway operations and is encouraged. Where there are multiple existing accesses serving a site, the Department shall consider an overall permanent reduction of access point(s) as one justification element when contemplating the merits of a variance approval.

  (iii) Limited-access and no-access facilities. Variance requests to modify a limited-access line or no-access line shall include detailed reports of appraisals, costs and justification for the variance. A request to modify a limited-access line or no-access line shall be treated as a request for variance. The Department may consider variances from the provisions of this rule for limited-access facilities when a careful appraisal reveals extensive damage, or if needed frontage roads would involve excessive right-of-way costs or construction costs.

  (b) Department review considerations. The Department shall not approve variances that, in the Department's determination, pose hazards to public mobility, health, safety, and welfare. The Department shall not authorize variances for procedural requirements. The Department shall review the variance request for consistency with the purposes of this rule. The Department shall consider the following specific factors in determining that the approval of a variance will not negatively impact the current and proposed operation of the highway:

  (i) The applicant has considered all other feasible alternatives to provide reasonable alternate access to the property or development and can demonstrate that better alternatives in terms of highway operations are impracticable or do not exist.

  (ii) The applicant has considered access through, or entered into, a shared use driveway or access point agreement with an adjacent land use. If no such agreement is included with the variance request as a mitigation measure, the applicant must demonstrate such a shared use access is not feasible.

  (iii) The applicant is providing on-site or off-site traffic improvements that might offset the negative impacts of approving an access that does not meet the provisions of this rule.

  (iv) The applicant has considered and demonstrated trip reduction strategies that allow the access to properly function without creating a negative impact to the highway.

  (v) The applicant has provided traffic engineering or other studies (if requested) to determine that the access will not degrade the efficient flow of traffic on the highway in terms of safety, capacity, travel speed, and other functional features of the highway.

  (c) Department review period. The review periods defined within this rule for conditional access permit applications shall apply to a request for variance.

  (d) Department documentation. The Department shall include in its files documentation of reasons for approving or denying a variance request.

  (e) Limitations and conditions of variance approval. An approved conditional access permit or encroachment permit may stipulate conditions and terms for the expiration of the permit when the necessity for the variance no longer exists. It may also require the permittee to improve, modify, eliminate, or correct the condition responsible for the variance when it is evident that the justification for the variance is no longer valid. Such stipulations and requirements shall be stated in the approved permit.