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Oregon Bulletin

June 1, 2012

Department of Transportation, Highway Division, Chapter 734

Rule Caption: Modification of OAR 734-051-3020 (temp) to conform to 2011 ORS revisions.

Adm. Order No.: HWD 7-2012(Temp)

Filed with Sec. of State: 5-3-2012

Certified to be Effective: 5-3-12 thru 6-29-12

Notice Publication Date:

Rules Amended: 734-051-3020

Rules Suspended: 734-051-3020(T)

Subject: During the 2011 Session, the Oregon Legislature adopted Senate Bill 264 which was signed into law by the Governor with an effective date of January 1, 2012. Temporary rules were adopted and went into effect on January 1, 2012 that implemented the new legislation.

 The temporary rules evaluate approach applications that are subject to a change of use under the “moving in the direction of” criteria. In circumstances where ODOT and the applicant enter into a collaborative discussion, the temporary rules authorized ODOT to consider all permitted and grandfathered approaches, including those that were improved by ODOT during project construction when applying the “moving in the direction of” criteria. The proposed revision to the temporary rule expands the scope of the connections that will be considered and proposes to also include all unpermitted connections that are not grandfathered when applying the “moving in the direction of” criteria.

 Although inclusion of unpermitted connections that are not grandfathered when evaluating whether an application is “moving in the direction of” is not expressly authorized by SB 264, ODOT may consider unpermitted connections that are not otherwise grandfathered during a collaborative discussion process. Consideration of unpermitted connections that are not also grandfathered represents a policy change for ODOT. This policy change is directly responsive to the objectives of the stakeholder group to streamline the permitting process to effectively respond to economic development opportunities and objectives. The proposed changes are confined to a limited population of unpermitted connections on parcels subject to a change of use during the collaborative process. If the applicant and ODOT cannot agree to whether an application is “moving in the direction of” then the standards adopted in OAR 734-051-4020 apply and unpermitted connections that are not grandfathered will not be required to be considered.

Rules Coordinator: Lauri Kunze—(503) 986-3171

734-051-3020

Change of Use of a Private Connection

(1) Applicability. An application is required for the purpose of permitting all connections to a property when there is a change of use of an existing private connection to a state highway, as set forth in section (2) of this rule, whether the connection is permitted, grandfathered or unpermitted. Applications shall be processed pursuant to OAR 734-051-3030 through OAR 734-051-3040.

(2) Changes of Use Requiring an Application for State Highway Approach. Except as provided under section (5) of this rule, a change of use occurs when one or more of the criteria in subsections (a) through (e) of this section occurs:

(a) The number of peak hour trips increases by fifty (50) trips or more from that of the property’s prior use and the increase represents a twenty (20) percent or greater increase in the number of peak hour trips from that of the property’s prior use; or

(b) The average daily trips increases by five hundred (500) trips or more from that of the property’s prior use and the increase represents a twenty (20) percent or greater increase in the average daily trips from that of the property’s prior use; or

(c) The daily use of a connection increases by ten (10) or more vehicles with a gross vehicle weight rating of twenty-six thousand (26,000) pounds or greater; or

(d) ODOT demonstrates that safety or operational concerns related to the connection are occurring as identified in OAR 734-051-4020(3); or

(e) The connection does not meet the stopping sight distance standards, as measured in feet, of ten (10) times the speed limit established in ORS 811.111 or the designated speed posted under 810.180 for the highway as measured in miles per hour, or ten (10) times the 85th percentile speed of the highway where the 85th percentile speed is higher or lower than the speed limit established in 811.111 or the designated speed posted under 810.180. The permit holder may perform a study to determine if the 85th percentile speed is higher or lower than the speed limit established in 811.111 or the designated speed posted under 810.180. The sight distance measurement and the study to determine the 85th percentile speed shall be performed according to published department procedures by or under the supervision of an engineer registered in Oregon. The measurement shall be taken under existing and proposed site conditions.

(3) Mandatory Meeting. Unless waived by the department, a meeting between ODOT staff and the applicant is required for a change of use application prior to the department deeming the application complete. It is preferable that the meeting be held prior to submittal of the change of use application.

(4) Determinations of Change of Use. The department shall determine whether a change of use meets the thresholds in section (2) of this rule by using one or more of the following methods:

(a) Field counts;

(b) Site observation;

(c) Traffic impact analysis;

(d) Field measurement;

(e) Crash history;

(f) Trip Generation, 8th Edition: An ITE Informational Report; and Trip Generation Handbook, 2nd Edition; both published by the Institute of Transportation Engineers (ITE); or

(g) Information and studies provided by the local jurisdiction or the applicant.

(5) Exempt from Application for Change of Use. Buildout of an approved site plan or multi-phased development does not require a new application for an approach road permit where the department determines that the buildout is consistent with the land use approval by the local government and the permit issued by the department for development.

(6) Approval Criteria. The department shall approve an application for a state highway approach that does not pose a safety or highway operations concern, as set forth in OAR 734-051-4020(3), or all such concerns are sufficiently mitigated pursuant to 734-051-3070; and

(a) The application meets the applicable approach road spacing, channelization and sight distance standards; or

(b) The department and the applicant reach agreement that the approach moves in the direction of conforming to approach road spacing, channelization, and sight distance standards pursuant to sections (7) through (9) of this rule; or

(c) The applicant and the department reach agreement under section (b) that the existing condition without change is sufficient to support approval of an application.

(7) Moving in the Direction of Conformity Collaborative Process. The department and applicant, through a collaborative process, shall determine whether an application moves in the direction of conforming to the spacing, channelization or sight distance standards subject to safety and operations concerns. The collaborative process shall be made available to the applicant within thirty (30) days of the date an application for state highway approach is deemed complete.

(8) Criteria for Moving in the Direction of Conformity. In determining whether an application for a private approach to a state highway moves in the direction of conformity with the spacing, channelization and sight distance standards of OAR 734-051-4020, the department shall consider all connections on the subject site, whether permitted, grandfathered or unpermitted. An application moves in the direction of conformity with 734-051-4020 when changes are made to a connection that include, but are not limited to, one or more of the following:

(a) Eliminating or combining existing connections to the highway resulting in a net reduction in the number of connections; or

(b) Improving the distance between connections; or

(c) Improving sight distance; or

(d) Widening an existing connection to accommodate truck turning radius requirements; or

(e) Widening an existing connection to accommodate additional exit lanes; or

(f) Narrowing an existing connection to provide the appropriate number of entry and exit lanes as required for the property; or

(g) Developing a throat on a connection to allow for more efficient movement of motorists from the highway.

(9) Agreement. Where the department and applicant agree that a change of use application moves in the direction of conforming to spacing, channelization, and sight distance standards, the department shall approve the application without requiring separate deviations from those standards. The department, upon application approval, shall issue a permit for the approaches that the department and applicant agree will remain. An agreement to remove, modify, or mitigate a connection is not an appealable decision.

(10) Where Agreement is Not Reached.

(a) If, after participating in a collaborative process pursuant to section (7) of this rule, the applicant and the department cannot agree that an application is moving in the direction of conformity pursuant to sections (8) and (9) of this rule, the Region Manager shall document the issues of agreement and non-agreement with the applicant through a written statement of non-agreement. The applicant may then request further collaboration on the issues of non-agreement under OAR 734-051-3090, sections (1) through (3), and/or a review by the Dispute Review Board under 734-051-3100.

(b) Where agreement cannot be reached under the processes of subsection (a) of this section, the department may require additional information to complete the application and make a decision pursuant to the standards of OAR 734-051-4020 and issue a final decision to approve, deny, or approve with mitigation, consistent with the procedures in 734-051-3030 and 3040. The department’s decision to deny or approve with mitigation applications under the standards of 734-051-4020 are subject to post-decision review under 734-051-3080.

(11) Unpermitted Connections Not Subject to Moving in the Direction of Conformity Criteria. Notwithstanding sections (6) through (8) above, the “moving in the direction of” criteria as set forth in section (8) of this rule shall not be applied to the unpermitted connections in subsections (a) through (f), below. For these unpermitted connections, the department shall apply the standards of OAR 734-051-4020 to approve, deny, or approve with mitigation the application, consistent with the procedures in 734-051-3040.

(a) To a highway segment with access control where no right of access to the property exists at the location of the existing connection, and a concurrent application for a grant of access or indenture of access is not approved; or

(b) To properties without an approved site plan or land use approval allowing for development of the property; or

(c) Connections that the department proves were constructed after April 1, 2000 without the department’s permission or knowledge; or

(d) To property abutting a statewide classification highway with a posted speed of 50 MPH or greater; or

(e) Any highway designated as an expressway; or

(f) To properties that are within the boundaries of an adopted access management plan, corridor plan, or interchange area management plan area, and the existing connection is inconsistent with the plan, and the planned component for the future access to the site has been constructed or is funded to be constructed within four years at the time of the application.

Stat. Auth.: ORS 184.616, 184.619, 366.290, 373.015, 374.305, 374.310, 374.312, 374.315, 374.330, 374.335, 374.990, 811.430 & 2010 OL Ch. 31 Sec. 2
Stats. Implemented: ORS 374.305 - 374.990
Hist.: HWD 16-2011(Temp), f. 12-22-11, cert. ef. 1-1-12 thru 6-29-12; HWD 7-2012(Temp), f. & cert. ef. 5-3-12 thru 6-29-12

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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