Public Liabilities Relating to Driveway Permits (2022)

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Background State highway departments and transportation agen- cies have a continuing need to keep abreast of operat- ing practices and legal elements of specic problems in highway law. e NCHRP Legal Research Digest and the Selected Studies in Transportation Law (SSTL) series are intended to keep departments up-to-date on laws that will aect their operations. Foreword Transportation agencies across the country may face legal challenges from property owners when design or permit changes cause safety concerns or obstruct access to private driveways in the public right-of-way. Agencies need better information to predict when takings com- pensation will be required or when permit approval, denial, or changes put them at risk of tort or due process liability. is digest evaluated the circumstances under which transportation agencies are held liable by prop- erty owners for the regulatory function of permitted and unpermitted driveways. Case and statutory review revealed some helpful practices. In addition, this digest identies trends that can assist agencies in predicting and limiting liability. A state’s case law denition of “interference with an access right” has a substantial impact on predicting takings’ liability, and the denition is not limited to precedential case law. is digest includes an historical review of constitu- tional amendments and statutory codication of access management authority which provide evidence that these denitions change over time and can continue to change as the world becomes more urban and transpor- tation systems advance. Statutory and policy changes governing the access permit process can provide legal exibility in managing access. e composition of the access permit can have a similar result. Statutory exemp- tions from waivers of sovereign immunity can provide protection from tort claims as well. Transportation agency attorneys and sta, legisla- tors, and state transportation administrators should nd this digest benecial and informative. Public Liabilities Relating to Driveway Permits This digest was prepared under NCHRP Project 20-06, “Legal Problems Arising Out of Highway Programs,” for which the Transportation Research Board (TRB) is the agency coordinating the research. Under Topic 25-01, Pam Clay-Young, Doug Kreis, Kenneth Agent, James Bryan Gibson, and Nikiforos Stamatiadis, Kentucky Transportation Center, College of Engineering, University of Kentucky, Lexington, KY, prepared this digest. The opinions and conclusions expressed or implied in this digest are those of the researchers who performed the research and are not necessarily those of the Transportation Research Board; the National Academies of Sciences, Engineering, and Medicine; or the program sponsors. The responsible program officer is Gwen Chisholm Smith. MARCH 2022 NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM NCHRPLRD 85 LEGAL RESEARCH DIGEST