AM15-02(B): Presumption of Written Permission for an Existing Private Connection

Type: Bulletin

Topic or Program: Access Management  |  OAR 734-051-3015

Final Number: AM15-02(B)

Effective Date: 04/15/2015

Updated Date: 08/14/2017

Signature on File: Larry McKinley, Access Management Program Manager

The purpose of this Technical Services Bulletin is to provide technical guidance to ODOT staff for interpreting and applying OAR 734-051-3015, Presumption of Written Permission for an Existing Private Connection.

This bulletin is for use by the department’s Access Management staff and may be shared with members of the general public to provide instruction or additional information.

See Attachment A for more detailed guidance on each section of OAR 734-051-3015.

Access Control

The right of access between a property abutting the highway and the highway has been acquired by the department or eliminated by law.

Approach

A legally constructed public or private connection that provides vehicular access to or from a state highway that:

1. Has written permission under a Permit to Operate issued by the department under OAR 734-051-3010; or
2. The department has recognized as grandfathered under OAR 734-051-1070(30); or
3. The department does not rebut as having a presumption of written permission under OAR 734-051-3015.

Connection

An existing approach as defined in OAR 734-051-1070(9) or an unpermitted means of vehicular access to or from a state highway and an abutting private property, city street or county road.

Grandfathered Approach

An approach that the department has recognized in documentation dated prior to January 1, 2014 as having grandfathered status under the rules in effect on the date of the documentation. An approach that is recognized as having grandfathered status is treated in the same manner as a Permit to Operate under Division 51 rules unless otherwise noted.

Permit to Operate

Written permission issued by the department to operate, maintain and use an approach to the state highway, including all required signatures and attachments, and conditions and terms. 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.

Permitted Approach

A legally constructed approach connecting to a state highway for which the department has issued a valid Permit to Operate.

Presumption of Written Permission

An owner of real property abutting a state highway with a connection to a state highway that existed on January 1, 2014 is presumed to have the Department of Transportation’s written permission for the connection based upon documentation for a highway project completed by the department that shows that the connection was built or rebuilt as part of a highway project or that the department intended to issue a Permit to Operate to the property owner for the connection. An owner of real property abutting a state highway with a connection that was in existence before April 1, 2000, is also presumed to have the department’s written permission for the connection based upon documentation in any form that shows: that the connection was in existence before July 16, 1949; or that the connection was in existence before the department accepted jurisdiction of the highway from a city or county; or that the connection was built or rebuilt to the abutting property with the department’s knowledge or permission. A presumption of written permission applies only where there is a right of access to the state highway as defined in OAR 734-051-1070(66).

Private Approach

An approach that serves one or more properties and that is not a public approach.

Public Approach

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(52), included as part of a corridor plan, local transportation system plan or comprehensive plan, and must be or come under the authority of the city or county to be considered a public approach.

Region Manager

The person in charge of one of the department’s Transportation Regions or designated representative.

Right of Access

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.

Rule, this ("this rule")

The part of OAR Chapter 734, Division 51, as designated by the four-digit suffix, in which the reference to “this rule” appears.

State Highway

A highway that is under the jurisdiction of the Oregon Department of Transportation.

Senate Bill (SB) 408, which became law in January 2014, amended ORS 374 and introduced a new “presumed to be permitted” status to all unpermitted connections to the state highway system that existed on January 1, 2014 and had an abutter’s right of access. Section 2 of SB 408 was codified as OAR 734-051-3015, Presumption of Written Permission for an Existing Private Connection.

OAR 734-051-3015 was developed in collaboration with the Access Management Oversight Task Force established by SB 264. This Task Force of legislators and stakeholders was concerned about the majority of private driveways to state highways that had no record of written permission from the department as required by ORS 374. The department referred to these as “unpermitted approaches” and by law they were considered illegal.

Prior to SB 408, the department had adopted administrative rules that allowed it to grandfather unpermitted connections. However, the grandfathering process often put the burden on the property owner to establish that their driveway met the requirements to be grandfathered and the department had sole discretion to decide whether the burden of proof was met. In developing SB 408 (which became ORS 374.308), the Task Force wanted state statute to provide ODOT’s written permission for the vast majority of unpermitted connections in existence on January 1, 2014 and eliminate the grandfathering process.

This bulletin provides technical guidance to staff for interpreting and applying OAR 734-051-3015, Presumption of Written Permission for an Existing Private Connection. For specifics on the technical guidance, see Attachment A.

Department staff members in the following positions are responsible for carrying out the guidance in this Bulletin as it relates to their assigned duties and authority:

• Region Managers.
• District Managers.
• Region Access Management Engineers (RAMEs).
• Development Review Coordinators.
• Access Management Coordinators.
• Permit Specialists.
• Other staff as assigned by management authority.

Implement this guidance upon the effective date.

Special Instructions

Attachments