Cooperative Agreements for Corridor Management (2004)

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5 CHAPTER ONE INTRODUCTION BACKGROUND A growing number of transportation agencies are engaging in corridor management projects to preserve arterial safety and mobility. Corridor management can be generally de- fined as “the application of multiple strategies to achieve specific land development and transportation objectives along segments of a corridor” (1). A “corridor” may be de- fined as “one or more primary transportation facilities that constitute a single pathway for the flow of people and goods within and between activity centers, as well as the abutting land uses and supporting street network” (1). Ob- jectives of corridor management activities typically involve improving access management practices, managing subdi- visions and land use, preserving needed right-of-way, at- tending to developer mitigation of transportation impacts, and arranging for funding or cost sharing. A complicating factor in corridor management is that major roadway corridors are often owned and maintained by the state but experience impacts by many other factors out- side the control of the state transportation agency. Some of these factors include the planning and regulatory capacity of local jurisdictions, local development decisions and economic priorities, and locational choices and site de- sign decisions by the many private interests that drive the development process. Therefore, cooperation is necessary between governmental entities, and often with private enti- ties as well, to accomplish corridor management objec- tives. The need to formalize cooperation has led many agen- cies to enter cooperative agreements aimed at strengthen- ing land use and transportation linkages. These cooperative agreements require each involved party to verify its level of commitment to managing the corridor and to agree on respective roles and responsibilities. Cooperation between agencies may take the form of resolutions, memorandums of understanding (MOUs) or agreement, intergovernmental agreements, or some combination of these methods. Pub- lic–private agreements relating to corridor management objectives may also be pursued between state or local agencies and property owners. Despite the increasing use of cooperative agreements for transportation corridor management, there is little information available on best practices. Questions remain about the authority to engage in agreements, appropriate level of detail or breadth of scope, desirable elements, and number of signatories that could reasonably be party to an agreement and still have it be workable. Another question for state transportation agencies is how to create lasting and effective agreements with local partners, given the turnover of elected officials and the potential impact on decisions of previous administrations. A synthesis of cur- rent practices is needed to gain further insight into these questions and other issues. OBJECTIVES AND SCOPE The objective of the synthesis is to identify the state of cur- rent practice in developing and implementing cooperative agreements for corridor management, as well as elements of such agreements and best practices or lessons learned. Governments and private entities may enter cooperative agreements for a variety of reasons, including project fund- ing, joint exercise of services, annexation, pavement resto- ration, and consolidation or transfer of functions. For the purpose of the synthesis, the scope was narrowed to coop- erative agreements between government agencies that ad- dress land use and transportation linkages for the purpose of preserving arterial safety and mobility. The term “arte- rial” in this context generally refers to major thoroughfares or highways that are not limited access facilities, although some information relating to limited access facilities was included where appropriate. Typical subjects included ac- cess management, zoning and subdivision management, right-of-way needs and preservation, and financial obliga- tions. Respondents were also asked to identify and provide examples of public–private agreements related to corridor management. METHODOLOGY Three basic methods were used to develop the synthesis: (1) a survey of each state transportation agency in the United States and each provincial transportation agency in Canada, (2) a review of the published literature and gov- ernment documents, and (3) follow-up questions with se- lected individuals. Responses were received from 17 states and 5 provinces (see Appendix A). Agencies were asked to describe the nature of the agreement, experiences with en- actment and implementation, lessons learned, and topics about which they would like further information. They were also asked to provide copies of cooperative agree- ments and any supporting plans or legislation.

6 From the survey, approximately 30 cooperative agree- ments or resolutions were collected, and they were supple- mented by other agreements and background information identified through state transportation agency contacts, a review of the published literature, and Internet resources. From this information, several case studies were selected for more detailed content, and interviews were conducted with individuals involved in the efforts. TERMS AND DEFINITIONS Considerable variation was observed in the terms that agencies used to define cooperative agreements. For exam- ple, agencies surveyed for the synthesis tended to use the following terms interchangeably: (1) intergovernmental agreement and interlocal agreement, (2) memorandum of understanding and memorandum of agreement or letter of agreement, and (3) public–private agreement and develop- ment agreement. As noted in the literature, “this rich vari- ability makes difficult the achievement of a common lexi- con” (2). For the purpose of the synthesis, the generic terms “agreement” or “cooperative agreement” were used to characterize information relating to more than one type of agreement. Furthermore, the terms intergovernmental agree- ment, memorandum of understanding, public–private agree- ment, and resolution were used as separate identifiers. Follow- ing is an overview of these terms and suggested definitions, from a review of the literature and an assessment of current practices. • • • • • • A resolution can be generally defined as the formal expression of an opinion or the will of a governing body on a given policy at a particular point in time. As such, resolutions are not legally binding and are subject to change, particularly if the members of the elected body change. However, a resolution in support of corri- dor management may serve as an initial step toward a more formal and legally binding cooperative agreement (1). Resolutions are often used as a vehicle for adopting a new plan or policy. Some state statutes require all parties to an intergovernmental agreement to pass resolutions in support of the agreement (2). A memorandum of understanding (MOU) goes be- yond a resolution to document the desire of involved parties to engage in a particular course of action. For corridor management, an MOU is generally used to define roles and responsibilities of participating enti- ties, as well as to establish common direction on a particular course of action. An MOU could serve as an intermediate step toward more extensive coopera- tion or it may be the only form of declaration in those places where a more formal or binding agreement cannot be attained (1). An intergovernmental agreement may be defined as “a legal pact authorized by state law between two or more units of government, in which the parties con- tract for or agree on the performance of a specific ac- tivity through either mutual or delegated provision” (2). Because they are tantamount to contracts, inter- governmental agreements work best when responsi- bilities, financial obligations, and procedures are de- tailed (1). They also are the most binding, from a legal perspective, of the types of intergovernmental cooperation reviewed. Maintenance agreements may take the form of an in- tergovernmental agreement between governments or it may be a public–private agreement between a gov- ernment and a private entity. These agreements per- tain to roadway maintenance issues, such as paving, signalization signing, lighting, landscaping, access permitting, and construction activities within the right-of-way of a transportation facility. Increasingly, maintenance agreements involve access management issues, given that driveway permitting by state trans- portation agencies has traditionally been a mainte- nance activity. Maintenance agreements with private entities often address restoration of pavement or sidewalk damage caused by a private entity in the course of its activities. An example of this type of agreement is the road repair agreement between the city of Fort Worth (Texas) and gas well drilling op- erators (3). A public–private agreement is a binding contract be- tween two or more parties, with at least one being a governmental entity and another a private entity. This type of agreement generally applies to the rights and responsibilities of each party in regard to the com- mon boundary between a roadway and adjacent pri- vate property. Public–private agreements for corridor management often involve developer mitigation, ac- cess conditions, future roadway improvements, and/ or multiparty funding arrangements. Some public– private partnerships or agreements are those between a government agency and a utility provider with re- gard to utility corridors. A development agreement is a common form of a public–private agreement between a landowner and a government agency. Development agreements allow agencies to obtain concessions from landowners, be- yond what may be otherwise possible under the nor- mal exercise of regulatory authority (4). As such, they are often governed by specific statutory re- quirements and limitations. The motivation of a land- owner for making such concessions is to obtain agency approval and to “freeze” applicable regula- tions at a given point in time or otherwise reduce the number of new regulations that may be applied dur- ing the life of the contemplated project (4). For corri- dor management, developers may seek approval of a

7 particular site plan and access concept, as well as confirmation as to the amount of right-of-way that will be needed, any impact mitigation, and improve- ments that the government agency plans for the adja- cent roadway. USE OF AGREEMENTS Of the 22 state and provincial transportation agencies that responded to the survey, 13 (59%) have entered into some type of cooperative agreement to manage arterial corridors to preserve mobility and safety (see Figure 1). Nine of those 13 agencies (69%) indicated that they use two or more types of agreements to forge cooperation with other agencies or private entities, and 6 agencies have used three or more types (46%). The percentage of state and provincial respondents that have applied various types of agreements is summarized in Figure 2. The most common types of agreements reported were MOUs (69%) and maintenance agreements (54%). However, the variability of terminology suggests some over- lap with regard to responses for maintenance agreements and intergovernmental agreements. SOURCES OF AUTHORITY The sources of authority for state or provincial transporta- tion agencies to enter into a cooperative agreement vary. Some states and provinces derive their authority to enter cooperative agreements through general agency powers or specific agency powers granted in transportation law. Oth- ers enact cooperative agreements in accordance with spe- cific enabling legislation, or they adopt a specific agency procedure or policy related to cooperative agreements. The stated purpose of such authority is generally to allow gov- ernmental units to cooperate in applying their individual powers to mutual advantage and for public benefit. 59% 41% 0% 20% 40% 60% 80% 100% Yes No FIGURE 1 Agencies enacting cooperative agreements (see survey question 1). 69% 54% 54% 46% 38% 15% 0% 20% 40% 60% 80% 100% Memoranda of Understanding Maintenance agreements Development agreements Intergovernmental agreements Resolutions Other* FIGURE 2 Types of cooperative agreements used (see survey question 3). [Other = mutual adoption by state and local governments of corridor facility plans (i.e., access plans or signal plans).]

8 FIGURE 3 Sources of authority for corridor management agreements. (Other = voluntary cooperation by local governments to enforce state design standards.) At the local level, most states allow local governments to enter into cooperative agreements with other localities for public purposes. An International City/County Man- agement Association (ICMA) report states that “most state intergovernmental cooperation laws are permissive and let jurisdictions undertake jointly any activity that they are al- lowed to undertake individually” (2). Individual powers of local governments are generally established in the state constitution and corresponding enabling statutes. Of the state and provincial survey respondents that have entered into a cooperative agreement, the majority (69%) derive their authority from general agency powers granted in transportation law (see Figure 3). In some cases, state trans- portation law specifically mentions cooperative agreements. In Oregon, for example, Chapter 366.770, State Highway Agreements with Local Governments, Oregon Revised Statutes, states that The Department of Transportation may enter into a coopera- tive agreement with any one or more cities, counties, road dis- tricts, or other municipalities of the state for the construction, reconstruction, improvement, repair, or maintenance of any state highway, and provide for an allocation of the cost of the project to the contracting parties. In Florida, Section 337.273(3) of state transportation law, which addresses transportation corridors, encourages the use of corridor management agreements: It is the intent of the Legislature that governmental police powers be utilized to the greatest extent possible by each gov- ernmental entity, and by two or more entities through corridor management agreements, to manage land uses necessary for transportation corridors; that property acquisition by donation, purchase, or eminent domain occur as far in advance of con- struction need as possible; and that property needed to manage transportation corridors be acquired and retained for future use to avoid the public liabilities for health, safety, and welfare heretofore outlined. In Canada, the New Brunswick Highway Corporation Act grants the New Brunswick Highway Corporation, a di- vision of the province’s department of transportation (DOT), the authority to “enter into and amend agreements with the Government of Canada, the government of any province, ter- ritory or other jurisdiction, a municipality in the Province, or any other person in or outside the Province.” State authority to enter into a cooperative agreement can also be derived through enabling legislation for intergov- ernmental agreements. For example, Iowa’s Chapter 28E, Joint Exercise of Governmental Powers, Iowa Code 2003, broadly permits state and local governments in Iowa to make efficient use of their powers by enabling them to provide joint services and fa- cilities with other agencies and to co-operate in other ways of mutual advantage . . . . Any public agency may enter into an agreement with one or more public or private agencies for joint or co-operative action pursuant to the provisions of this chapter, including the creation of a separate entity to carry out the purpose of the agreement. Appropriate action by ordi- nance, resolution, or otherwise pursuant to law of the govern- ing bodies involved shall be necessary before any such agree- ment may enter into force. In Washington State, Section 47.52.090, Cooperative Agreements, Revised Code of Washington, notes that the highway authorities of the state, counties, incorporated cit- ies and towns, and municipal corporations owning or operating an urban public transportation system are authorized to enter into agreements with each other, or with the federal govern- ment, respecting the financing, planning, establishment, im- provement, construction, maintenance, use, regulation, or va- cation of limited access facilities in their respective juris- dictions to facilitate the purposes of this chapter.