This is an important alert for owners of property abutting state highways in Oregon and for developers interested in development projects that will need access to Oregon's state highways. 

A new access management bill was passed into law in Oregon's 2011 legislative session that will revolutionize highway access permitting in Oregon. SB 264 became effective on July 1, 2011. The access management administrative rules of the Oregon Department of Transportation ("ODOT") contained in OAR Chapter 734, Division 51 are now invalid to the extent that they are inconsistent with the new statutory provisions. ODOT has just initiated formal rulemaking procedures to adopt new administrative rules consistent with the new statute before the end of the year. 

The bill achieves a highway access management paradigm shift and adopts a number of legislative directives to ODOT, including:

  • Highway access permitting governance is shifted away from ODOT and placed with the legislature; 
  • Alternative access to a site (other, non-highway access to the site) may no longer be used by ODOT to deny an application for highway access, where the presence of alternative access was previously the first reason used by ODOT to deny a highway access permit application; 
  • Instead of an applicant having the burden to prove that a proposed driveway will operate safely and efficiently, for most types of applications ODOT now has the burden to prove that a proposed driveway will be unsafe or will interfere with highway operations; and
  • ODOT must now prove that no other mitigation measure is effective or available before imposing a raised, non-traversable median as mitigation for a proposed driveway permit. 

SB 264 was described on the floor of the Senate as being the farthest-reaching transportation bill passed in Oregon in years. The impetus for the bill was to relax the rules for highway access permitting to enhance economic growth and development. Accordingly, ORS Chapter 374 was amended to read in pertinent part that: 

  • ORS 374.310(4) – "The department's determination that the access is sufficient . . . or . . . adequate . . . shall be based on the economic development needs of the property abutting the highway for its authorized and planned uses . . . ." 
  • ORS 374.312(1) – "It is the intent of the Legislative Assembly to develop a highway access management system based on objective standards that balance the economic development objectives of properties abutting state highways with the transportation safety and access management objectives of state highways . . . ." 

The work will continue into the next legislative session under the guidance of a Legislative Oversight Task Force also created by the bill. Contact counsel for additional information on the new statute or to learn how to become involved in the administrative rulemaking to implement it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.