NCHRP Synthesis 351: Access Rights–A Synthesis of Highway Practice

• Published by:  NCHRP
• Authored by:  Del Huntington
• Co-authored by:  J. Wen

Huntington, D. & Wen, J. NCHRP Synthesis 351: Access Rights–A Synthesis of Highway Practice, Transportation Research Board of the National Academies, Washington, D.C., (2005)

      This study evaluated the state of the practice in acquiring access rights along roadways other than freeways for the purpose of access control. Considerations relative to acquisition, management, and disposal of access rights were reviewed. The study found that the acquisition of access rights under state powers of eminent domain was highly effective in preventing driveway and intersection access to the federal Interstate Highway System. It has also been applied successfully to establish expressways whereby all access rights of adjacent property owners are acquired and access is provided only via well-spaced public road connections. In these scenarios, properties along the highway gain access via an alternative roadway network, and landlocked properties are purchased or acquired via eminent domain.

      The acquisition of access rights by states for partial access control on other highways and crossroads that intersect freeway interchanges can be both costly and fraught with legal and administrative problems. These problems have included:

• Complex interface with permitting
• Deeded rights of access require compensation to remove
• Interference with enforcement of new or updated connection spacing standards and alternative access 
• Problems disposing of access rights once purchased with public funds, and
• Confusion where roadway is transferred to another jurisdiction

      To avoid the need to acquire landlocked properties or construct alternative access, states would leave a gap in the access control line. This, along with specific language included in property deeds as to the location of the gap, led to an expectation among property owners that a driveway would be allowed in that location – even where alternative access becomes available and without the need for obtaining a driveway permit. In particular the synthesis found that “the wording used to describe access rights in the property deed can convey unintended additional rights to the property. Denials for driveways at these openings in the partial access control line have led to court challenges, inverse condemnations, compensation by states, and specific laws to rectify perceived wrong doing.”

      In addition, states typically use this technique in combination with driveway permitting to regulate the location and design of driveways. Yet courts have sometimes found it difficult to differentiate between the application of eminent domain, which is compensable, and the application of regulatory authority under the police power, which is not.