The National Cooperative Highway Research Program (NCHRP) plans to award a contract for a study and report. Legal research reports sponsored by this project are published in NCHRP’s Legal Research Digest (LRD) series. Publications are made available to some libraries and to approximately 4,000 transportation lawyers and officials through the TRB distribution network.
There is complex interplay of eminent domain, property rights, developer agreements, and tort liabilities as they relate to the licensing (access permitting) of private driveways in the public right-of-way. Some states have sovereign immunity and tort liability limitations that protect the public from excessive liability claims for roadway design defects. However, that immunity is not absolute and may not immunize the permit issuance. The permit issuance may produce claims that the permitted driveway has created an unsafe condition. Property owners may demand more convenient access and make claims for damages if their access requests are denied or their current driveways are modified. These demands can result in heated debates about balancing public interests (safety, efficiency, protection of ministerial function) and private interests (profitability, convenience, and market value).
Some state courts (Kansas, Arizona, and Wisconsin) have held that public agencies can be held responsible for limiting the investment-backed expectations of developers when applying access restrictions even though the nexus between access and safety is well established. Across the country, there are approximately 2,000 driveway-related crashes per day with about 600 injuries in the same period.
Transportation agencies need clarification and guidance to navigate these sometimes competing areas of the law, takings, and potential tort liability. This need is underscored by the fact that court decisions on eminent domain involving access are relatively easy to find; however, court decisions and legal analysis regarding liability for public harm associated with the access are rare.
The objective of this research is to compile, review, and summarize in digest form each state’s “state of law” as it relates to state liability and access management (specifically for permitting driveways) and inverse condemnation claims. This compilation should include precise analysis on agency responsibilities, public tort risks, and the balancing of public and private interests.
The research should include a nationwide survey of state law with legal analysis on the interplay of eminent domain, property rights, developer agreements and tort liabilities as they relate to the licensing (access permitting) of private driveways in the public right-of-way.
Specific questions that should be answered by this research are:
Under what circumstances and to what extent can permitting transportation agencies have tort liability for the regulatory function of permitted or unpermitted driveways?
If there can be liability for permitting driveways, what sorts of circumstances have generated that tort liability?
What steps can be taken by public agencies to reduce tort liability?
When are transportation agencies subject to inverse condemnation claims for denial or revocation of driveway permits?
What steps can be taken to avoid inverse condemnation claims?
This research will be conducted in four tasks pursuant to a firm fixed price agreement.
The tasks will be as follows:
Task 1. Research plan and detailed report outline. The consultant will conduct background research and collect relevant material. Based on the initial but complete review of the source material, consultant will propose a detailed report outline. The outline should be about 8 to12 pages, include a proposed survey if one is to be used, and contain sufficient detail to inform the NCHRP project panel of what a 75- to 100-page report will contain. This outline should also contain the estimated pagination for each proposed section and/or subsection. This material will be submitted to NCHRP for consideration and approval.
Task 2. After approval of the work plan, the consultant should conduct additional research, and case and statutory/regulatory analysis.
Task 3. Draft report in accordance with the approved work plan (including modifications required by TRB).
Task 4. Revise report as necessary. The consultant should estimate that two revisions will be necessary. One revision may be required after review by the NCHRP staff and members of a select subcommittee. Additional revisions may be required after the full committee has reviewed the report.
25% paid upon submission and approval of the Task 1 Report.
50% paid upon submission and approval of the Task 3 Report.
25% paid upon submission and approval of the Final Report (following revisions as required by NCHRP).
An important factor in rating proposal offers will be the proposer’s commitment to promptly undertake and complete this study.
HOW TO PROPOSE
Proposals should be submitted as a single PDF with the following information and in the following order:
1. Summary sheet. (Here is the summary sheet ).
2. A statement of interest and qualifications.
3. Resume of key team members along with a description of responsibilities.
4. A list of your relevant prior publications (you may enclose one or two samples).
5. A statement of resources you will allocate to this project; any additions, deletions, or changes you may wish to suggest for undertaking the work; and your requested compensation.
6. An executed, unaltered liability statement. Here is a printable version of the Liability Statement.
7. Proposals should not exceed a total of 25 pages (including writing samples).
Proposals are evaluated by project panel members and NCHRP staff consisting of individuals collectively knowledgeable in the problem area. Evaluations are based upon the proposers': (1) experience in the subject area; (2) understanding of the work (demonstrated by the commitment of resources); (3) prior relevant publications (including briefs); (4) schedule for completing the work; and (5) price.
Proposals should be uploaded via this link: https://www.dropbox.com/request/VMSxbde358EPBSTX3z2e by 5:00 P.M(EST) on September 18, 2019. Proposals will not be accepted after this time.
For additional information and guidance, click here: Guidance for Working on NCHRP and TCRP Legal Projects.