OAR 734-051-3015
Presumption of Written Permission for an Existing Private Connection

(1)

Applicability. This rule applies to those existing private connections for which the department has not:

(a)

Issued a Permit to Operate in accordance with OAR 734-051-3010 (Administration of Private Approaches — Permit for Private Approach) (Permit for Private Approach); or

(b)

Issued a Permit to Operate under section (3) of this rule; or

(c)

Issued documentation recognizing the connection as grandfathered under OAR 734-051-1070 (Definitions) (Definitions).

(2)

Presumption of Written Permission.

(a)

An owner of real property abutting a state highway with a connection to a state highway that existed on January 1, 2014 is presumed to have the Department of Transportation’s written permission for the connection based upon documentation for a highway project completed by the department that shows that the connection was built or rebuilt as part of a highway project or that the department intended to issue an approach permit to the property owner for the connection.

(b)

An owner of real property abutting a state highway with a connection that was in existence before April 1, 2000, is also presumed to have the department’s written permission for the connection based upon documentation in any form that shows:

(A)

That the connection was in existence before July 16, 1949; or

(B)

That the connection was in existence before the department accepted jurisdiction of the highway from a city or county; or

(C)

That the connection was built or rebuilt to the abutting property with the department’s knowledge or permission.

(c)

There is no presumption of written permission under this rule where there is not a right of access to the state highway as defined in OAR 734-051-1070 (Definitions) (Definitions).

(d)

Connections presumed to have written permission under this section are subject to OAR 734-051-3020 (Change of Use of a Private Connection) (Change of Use of a Private Connection) as set forth in section 4 of this rule.

(e)

An owner of real property with a connection presumed to have written permission under this section is responsible for the cost and performance of maintaining the connection in accordance with OAR 734-051-5090 (Maintenance of Approaches) (Maintenance of Approaches).

(f)

The department may rebut that an existing connection has a presumption of written permission under section 7 of this rule.

(3)

Issuance of a Permit to Operate. The department may issue a Permit to Operate for a connection that it does not rebut as having a presumption of written permission if a change of use has not occurred as set forth in OAR 734-051-3020 (Change of Use of a Private Connection).

(4)

New Application Required for Change of Use. Connections deemed to have a presumption of written permission under section 2 of this rule are subject to the requirements and procedures for change of use as set forth in OAR 734-051-3020 (Change of Use of a Private Connection).

(a)

If the department determines that the connection meets one of more of the criteria for a change of use as set forth in 3020(2), the property owner is required to submit a new application for all approaches to the property as set forth in OAR 734-051-3020 (Change of Use of a Private Connection)(1) and 734-051-3030 (Application Requirements for State Highway Private Approach) (Application Requirements for State Highway Approach).

(b)

For the purposes of OAR 734-051-3020 (Change of Use of a Private Connection)(2)(a) and (b), prior use is the use of the property on January 1, 2014. For the purposes of 734-051-3020 (Change of Use of a Private Connection)(2)(c), the increase in daily use of a connection by vehicles with a gross vehicle weight rating of twenty-six thousand (26,000) pounds or greater is based on the use of the connection on January 1, 2014.

(5)

Removal of a Connection. If the department intends to remove a connection that it does not rebut as having a presumption of written permission, the department shall provide notification as set forth in OAR 734-051-5110 (Revocation of Permits and Removal of Approaches)(2) and the removal shall be subject to the post-decision review processes of 734-051-3080 (Post-Decision Review Processes) through 3110 and remedies as set forth in 734-051-6010 (Remedies in Closure of Approaches — Authority and Purpose of OAR 734-051-6010 through 734-051-6060) through 6070.

(6)

Connections Located on Open Frontage. Open frontage refers to a large open area along the highway right of way where the location for entry to or exit from an abutting property is not clearly defined. For the purposes of sections 2 and 3 of this rule, the department shall determine the location and dimensions of the connection within open frontage that it deems to have provided written permission in collaboration with the property owner(s) and, where possible, the property lessees and business operators. The department shall consider the land use served by the connection on January 1, 2014 and the current standards of the Oregon Highway Design Manual.

(7)

Department Rebuttal of a Presumption of Written Permission.

(a)

The department shall have the burden to establish that the factual basis for a presumption of written permission under sections 2(a) and (b) of this rule does not exist.

(b)

The department may rebut the presumptions of written permission by establishing the following:

(A)

A search of department as-constructed plans for highway projects where the connection is located do not show a note to build or rebuild the connection as part of a project; and

(B)

Neither the department nor the property owner have written documentation indicating that ODOT approved issuance of a permit to construct or a Permit to Operate for the connection; and

(C)

For connections that existed prior to April 1, 2000:
(i)
Photographic evidence or other historical documentation indicates that the connection was established after July 16, 1949; and
(ii)
Photographic evidence or other historical documentation indicates that the connection did not exist before the date that the department accepted jurisdiction of the highway; and
(iii)
Written documentation from the department to the property owner dated prior to January 1, 2014 indicates that construction of the connection was not authorized or that the connection is no longer authorized by the department for the reasons specified in the documentation.

(c)

If the department establishes that an existing connection does not have the presumption of written permission under this rule, then:

(A)

The connection is subject to removal or reconstruction as provided in ORS 374.307 (Removal or repair of installation constructed without permission) and the property owner is not entitled to file a claim for relief under OAR 734-051-6010 (Remedies in Closure of Approaches — Authority and Purpose of OAR 734-051-6010 through 734-051-6060); and

(B)

The department shall not offer an administrative remedy under OAR 734-051-6020 (Definitions) through 6070.

Source: Rule 734-051-3015 — Presumption of Written Permission for an Existing Private Connection, https://secure.­sos.­state.­or.­us/oard/view.­action?ruleNumber=734-051-3015.

734–051–1010
Authority for Rules — General Provisions 734–051–1020
Purpose and Intent of Rules 734–051–1030
Administration of Rules 734–051–1040
Relationship to Local Jurisdiction Rules and Regulations 734–051–1050
Procedure to Obtain a Permit to Construct or Modify a Public Approach 734–051–1060
Delegation of Permit Authority to Local Jurisdiction 734–051–1065
Restriction of Turning Movements for Existing Private Approaches 734–051–1070
Definitions 734–051–2010
Rights of Access — General Provisions 734–051–2020
Grants of Access 734–051–2030
Indentures of Access 734–051–3010
Administration of Private Approaches — Permit for Private Approach 734–051–3015
Presumption of Written Permission for an Existing Private Connection 734–051–3020
Change of Use of a Private Connection 734–051–3030
Application Requirements for State Highway Private Approach 734–051–3040
Private Approach Permit Application Review, Approvals and Timelines 734–051–3050
Deviations from Approach Spacing, Sight Distance, and Channelization Standards for a Private Approach 734–051–3060
Pre-Decision Collaborative Discussion for Highway Approach Permit Applications 734–051–3070
Mitigation Measures 734–051–3080
Post-Decision Review Processes 734–051–3090
Post-Decision Collaborative Discussion 734–051–3100
Access Management Dispute Review Board 734–051–3110
Contested Case Hearing Process 734–051–4010
Access Management Standards for Approaches — General Provisions 734–051–4020
Standards and Criteria for Approval of Private Approaches 734–051–4030
Benefit to the State Highway System 734–051–4040
Temporary Approaches 734–051–4050
Special Use Approaches 734–051–5010
Approach Design and Construction — Design of Approaches 734–051–5020
Issuance of Construction Permits 734–051–5030
Construction of Approaches 734–051–5040
Effective Period of Construction Permits 734–051–5050
Responsibility for Costs of Construction of Approaches 734–051–5060
Liability, Insurance and Bonding Requirements 734–051–5070
Review Procedure for Modifying a Construction Permit 734–051–5080
Issuance of a Permit to Operate, Maintain and Use an Approach 734–051–5090
Maintenance of Approaches 734–051–5100
Effective Period of Permit to Operate, Maintain and Use an Approach 734–051–5110
Revocation of Permits and Removal of Approaches 734–051–5120
Access Management in Project Delivery 734–051–6010
Remedies in Closure of Approaches — Authority and Purpose of OAR 734-051-6010 through 734-051-6060 734–051–6020
Definitions 734–051–6030
Offer of Remedies 734–051–6040
Procedure for Resolving Claims 734–051–6050
Appraisals 734–051–6060
Conditions of Agreement 734–051–6070
Delegation 734–051–7010
Access Management in Highway Facility Plans
Last Updated

Jun. 8, 2021

Rule 734-051-3015’s source at or​.us