BACKGROUND

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.

OBJECTIVE

            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?

Status: Published as NCHRP LRD 85.