Current through Register Vol. 35, No. 18, September 24, 2024
A.
Purpose: This section describes the application procedures for
submitting an access permit request to the department, and the administrative
procedures used by the department to approve or deny access permit requests on
state highways.
B.
Types of
access: Following is a list of the types of access that may occur along
the state highway system. Refer to Section 14 of the state access
management manual for a description of each access type.
(1) Existing lawful access, modification or
transfer.
(2) New private access
(individual use).
(3) New
subdivision access.
(4) New public
access.
(5) New commercial
access.
(6) Temporary construction
access.
(7) Temporary
access.
(8) Emergency
access.
(9) Field access.
(10) Access breaks in established access
control lines.
(11) Illegal
access.
C.
Access
permit applications: Applications for access permits shall be made by
the property owner; the property owner's authorized representative; or, the
local governmental agency requesting access from a state highway. Applications
are required for all new access types, for modification or transfer of existing
lawful access permits, and for upgrading an existing illegal access to a lawful
access.
(1) Changes in property use: Where
additional traffic is projected due to expansion or redevelopment of a
property, the property owner shall contact the department to determine if a new
permit application and modifications to existing access points will be
required. If the department determines that the increased traffic generated by
the property does not require modifications to the existing permitted access,
according to the procedures of
18.31.6.16
NMAC, a new permit application will not be required. Failure to contact the
department to determine the need for access modifications or to apply for such
modifications prior to initiation of property improvements, land use changes or
traffic flow alterations actions, may result in notification to the property
owner of intent to revoke or modify the existing permit and closure of the
access to the property. (Also refer to Subsection O of 18.31.6.14
NMAC).
(2) Permit application form:
All applications shall be made on the approved department permit application
form, "application for permit to construct an access or median opening on
public right-of-way."
(3)
Department district offices: Persons wishing to submit an access permit
application form should contact the appropriate department district office to
obtain application forms. District offices are located in Deming, Roswell,
Albuquerque, Las Vegas, Santa Fe, and Milan. The application form can also be
found in the appendix of the state access management manual,
and on the departments external web site,
dot.state.nm.us/content/dam/nmdot/Infrastructure/Access_management_Manual.pdf.
D.
Application submittal
requirements:
(1) Completed access
permit forms shall be submitted to the appropriate district office with proof
of ownership of the property to which access is requested. A plan or sketch of
the property shall be attached to the permit application showing the length of
the property frontage, the distance from the edge of the traveled roadway to
the property line, edge clearances, corner clearances, the distance from the
referenced mile marker to the centerline of the proposed driveway(s), and the
location of any access drives along the state highway across from the proposed
site. A traffic engineering evaluation shall be conducted for all access permit
requests according to the requirements of
18.31.6.15
NMAC and
18.31.6.16
NMAC, with an exception. The traffic engineering evaluation may be waived for
individual use access requests (see Subsection E, Paragraph 1 of 18.31.6.14
NMAC). In such cases, the department may conduct the evaluation required to
determine if an individual use access will be permitted or denied. A
construction traffic control plan shall also be submitted with the application
for review and approval by the district traffic engineer. The department may
require additional information relative to the evaluation of a permit
application as further described in Section 14 of the state access
management manual.
(2) A
permit application may be deemed incomplete by the department when necessary
and relevant information is missing, or when there is no written evidence of
the ownership of the property surface rights provided in the application. If
the application is deemed incomplete, the department shall notify the applicant
within 15 working days of receipt of the application and shall indicate the
reason or reasons for refusal. The department review period begins with the
acceptance of an application.
E.
Access permit requests from private
entities:
(1) Individual use: Requests
for a new private access shall be made on the department access permit
application. Application requirements for individual use permits shall include
a platted survey of the property, proof of ownership of the property, and
details regarding the location of the proposed access and the proposed
development. A traffic engineering evaluation typically shall not be required.
The department may conduct the evaluation required to determine if an
individual use access will be permitted or denied.
(2) Subdivisions and commercial developments:
Requests for new subdivision access, new commercial access or for modification
to an existing lawful access for other than individual use shall be made on the
access permit application. The applicant shall be required to satisfy all
pertinent requirements of 18.31.6 NMAC.
F.
Access permit requests from
governmental entities:
(1) Local
governments: Requests by local governmental agencies for new access or for the
reconstruction of existing access to the state highway shall be administered by
the department. The local governmental agency shall be considered the
applicant. The department shall work with local governmental agencies realizing
that the access will serve multiple property owners. Access to subdivisions and
other developments shall not be considered public access until the access is
constructed and accepted as a local public roadway.
(a) Local governmental agencies shall provide
notice of all developments that will directly or indirectly impact the state
highway, and shall request department participation in the administration of an
access permit if it is determined by the department that an access facility
will directly or indirectly impact the operation and function of a state
highway. The local governmental agencies may also require sub-dividers to
provide additional notice of all proposed developments that will directly or
indirectly impact the state highway.
(b) Where a private development accessing the
roadway of an appropriate local authority necessitates access improvements
where the local roadway connects to a state highway, the permittee shall be the
local jurisdiction.
(c) Local
governmental agencies may be required to submit a traffic engineering
evaluation with a permit application. The traffic engineering evaluation
requirement shall be determined according to the procedures described in
18.31.6.15
NMAC and
18.31.6.16
NMAC. Local governmental agencies may require developers to assist in preparing
and providing this information for submission to the state.
(2) Federal government: Requests
for access from a state highway by the general services administration (GSA),
United States postal service (USPS), department of defense (DOD), department of
energy (DOE), or other divisions of the federal government shall be
administered by the department in cooperation with the pertinent division of
the federal government. The access location, spacing and design standards
described in
18.31.6.18
NMAC and Section 18 of the state access management manual
should be followed for such requests.
(3) Sovereign Nations: Access requests on
state highway segments that traverse sovereign nation lands shall be
administered by the department in cooperation with the pertinent sovereign
nation. The access location, spacing and design standards described in
18.31.6.18
NMAC and Section 18 of the state access management manual
should be followed for such requests.
G.
Administrative review
process:
(1) An administrative review
period begins with the acceptance of a permit application by the appropriate
district engineer or the district engineer's designee.
(2) Upon acceptance of the application permit
and supplemental information, the department shall use 18.31.6 NMAC, the
state access management manual and any other applicable state
statutes for evaluating and acting on the application. Access requests that
break existing access control lines or that are requested on a
controlled-access facility shall be acted on by the access control review
committee according to the procedures in
18.31.6.19
NMAC. The application will normally be processed within 45 days. The review
period may be extended by the department when further action is required by the
access control review committee or other government entities, the applicant
will be notified. Transmittal of a completed permit, approved by the district
engineer, or transmittal of a denied application constitutes action on the
permit application.
(3) If the
department approves an application permit, the permit shall be prepared and
transmitted to the applicant along with any additional terms and conditions
established by the department. The owner noted on the permit, normally the
surface right owner, will become the permittee. If the permittee does not agree
to all terms and conditions of the permit, the permit shall not be
issued.
(4) In accepting the
permit, the permittee agrees to all terms and conditions of the permit. Should
the permittee or applicant choose to appeal a denied application, or the terms
and conditions of a permit, the appeal shall be filed within 60 days of the
date the denial notice or the approved permit is transmitted.
(5) The issue date of the permit is the date
the department representative signs the permit.
(6) The granting of an access permit conveys
no rights, title or interest in state highway rights-of-way to the permit
holder or property served. A permit for direct access to a state highway does
not entitle the permit holder to control or have any rights or interests in any
portion of the design, specifications or operation of the highway or roadway,
including those portions of the highway built pursuant to the terms and
conditions of the permit.
(7) If
the department denies an application, the department shall provide the
applicant a copy of the application marked "denied" along with any attachments
and a written explanation for the decision. The applicant may request a hearing
with the department district engineer or designee to discuss reasons for
denial.
(8) Denial of an
application request for physical modifications to an existing lawful access
does not constitute revoking access authorization for the existing
access.
(9) Requests for variance
from the standards of 18.31.6 NMAC may be submitted to the district engineer
and shall be considered an attachment to the permit application. The review of
variance requests shall be in accordance with Subsection J of 18.31.6.14 NMAC.
Variance procedures may be used when the standards established by 18.31.6 NMAC
are not entirely applicable to the proposed request for access.
(10) If, at the sole discretion of the
department, it is determined that a permittee is in violation of 18.31.6 NMAC
or any conditions of a permit, the department may revoke the permit. The
revocations process shall be as described in Subsection O of 18.31.6.14
NMAC.
H.
Permit
fees: The department may establish a reasonable schedule of fees for
access permits issued pursuant to 18.31.6 NMAC. It is the responsibility of the
applicant to determine if any local governmental fees are applicable.
I.
Appeals procedures:
(1) If the permittee or applicant objects to
the denial of a permit application by the Department or objects to any of the
terms or conditions of the permit placed therein by the department, a written
appeal shall be filed with the appropriate district engineer within 60 days of
the transmittal of notice of denial or transmittal of the approved permit. The
request shall include reasons for the appeal and may include recommendations by
the permittee or applicant.
(2) The
district engineer, or the district engineer's designee, will submit a written
request for review to the department traffic technical support engineer along
with the permit application, the written appeal, and all supporting
information. The traffic technical support engineer will review the request and
the appeal and offer an opinion to the district engineer regarding the merits
of the appeal. It is the intent of this process that an agreement is reached
between the traffic technical support engineer and the district engineer. If,
however, agreement cannot be reached, a formal meeting shall be scheduled with
the deputy secretary for highway operations to hear the appeal. This meeting
should involve the applicant, the traffic technical support engineer, and the
district engineer or designee. The traffic technical support engineer shall
provide a summary presentation of the facts and issues of dispute along with a
discussion of the consequences, safety assessment, risks and value associated
with the permit application. If applicable, the appeal should include a report
from the applicant's engineer. The deputy secretary for highway operations
shall make the final decision. Final decisions that are exceptions to existing
standards and regulations may be sent to the federal highway administration for
approval if their involvement is deemed appropriate by the deputy secretary for
highway operations. At this final decision point, no other department employee
will be authorized to approve the permit.
J.
Variance procedures: If an
applicant wishes to seek a variance from the standards of 18.31.6 NMAC, a
written request shall be submitted as an attachment to the permit application
form. The request for variance should include specific and documented reasons.
K.
Construction of access by
owner:
(1) An approved access permit
shall be deemed expired and null and void if the access is not under
construction within six months from the date of issue unless otherwise noted
and approved by the department in writing. When the permittee is unable to
commence construction within six months after the permit issue date, a
six-month extension may be requested from the district engineer. Any request
for an extension shall be in writing and submitted to the district engineer
before the permit expires. Denial of an extension may occur when the district
engineer ascertains and documents that unforeseen and significant changes in
highway traffic operations, proposed access operation, or statutes and
regulations that were not considered in the issuance of the permit have
occurred. Any person wishing to reestablish an access permit that has expired
shall be required to submit a new permit application and comply with all
related requirements, as specified by the district traffic engineer.
(2) The permittee shall notify the district
traffic engineer of pending access construction in state right-of-way at least
10 working days prior to any construction, unless other arrangements are made.
Construction of the access shall not proceed until both the access permit and a
construction traffic control plan are approved. The access shall be constructed
and completed in an expeditious and safe manner and shall be finished within 45
days of initiation of construction within the highway right-of-way. Failure by
the permittee to complete construction in the 45-day period shall be sufficient
cause for the department to initiate action to suspend or revoke the permit or
to close the access.
(3) The
construction of the access and its appurtenances as required by the terms and
conditions of the permit shall be completed at the expense of the permittee,
unless other arrangements are made with the district engineer. The permittee
should arrange for access construction to be completed by qualified
contractors. Construction shall meet all department specifications and shall be
subject to inspection by the department.
(4) Property required for highway access
improvements shall be dedicated, without cost, to the department. All rights,
titles and interests of dedicated property shall be conveyed to the department.
All current title policies shall be disclosed and be acceptable to the
department. The owner shall certify that the property is clean of contamination
or indemnify the department from any remediation responsibilities prior to
conveyance. The department may refuse to accept any property containing or
suspected of containing hazardous substances, toxic wastes or other
contaminants until such substances are either removed or the property is
certified clean by the appropriate governmental entity. The access is not
considered complete until property is conveyed.
(5) All materials used in the construction of
the access within the highway right-of-way or on permanent easements become
public property. Any materials removed from the highway right-of-way shall be
disposed of as directed by the department. All fencing, guard rail, traffic
control devices and other equipment and materials removed in the course of
access construction shall be given to the department unless otherwise
instructed by the permit or the department inspector.
(6) The department, at its discretion, may
complete the installation of permanent traffic control devices. The permittee
shall pay for direct costs and labor provided by the department for the
installation and relocation of all traffic control devices within public
right-of-way directly related to the use or construction of the permitted
access. Failure of the permittee to pay within a reasonable period may be
considered grounds for permit suspension, which may lead to revocation and
access removal.
(7) Where access
construction requires the reconstruction of the existing state highway, the
department may require the contractor or permittee to post a bond to ensure
completion of the work.
(8) The
permittee shall provide adequate advance warning at all times during access
construction according to the construction traffic control plan accompanying
the approved access permit. The traffic control plan shall conform with the
manual of uniform traffic control devices for streets and
highways (MUTCD). Construction traffic control may include the use of
signs, flashers, barricades, and flaggers.
(9) The department may restrict work on or
immediately adjacent to the highway, control lane closure periods, and require
pre-approval of all aspects of construction phasing where access construction
will affect traffic operations, roadway capacity or safety. Every effort shall
be made to minimize the closure periods of any travel lanes. Work in the
right-of-way may not be allowed on holidays, at night, during peak traffic
hours, or during adverse weather conditions without written permission from the
district. Work hours shall be approved by the district traffic
engineer.
(10) A utility permit
shall be obtained for any utility work within highway right-of-way. Where
necessary to remove, relocate, or repair a traffic control device or public or
private utilities for access construction, the relocation, removal or repair
shall be accomplished by the permittee without cost to the department and at
the direction of the department or utility company. Any damage to the state
highway or other public right-of-way beyond that which is allowed in the permit
shall be repaired immediately. The permittee is responsible for the repair of
any utility damaged in the course of access construction, reconstruction, or
repair.
(11) Prior to use of the
access, the permittee is required to complete the construction according to the
terms and conditions of the access permit. Failure by the permittee to abide by
all permit terms and conditions shall be sufficient cause for the department to
initiate action to suspend or revoke the permit or to close the access. If the
permittee wishes to use the access prior to completion, arrangements shall be
approved by the department and included in the permit. The department may order
a halt to any unauthorized use of the access pursuant to statutory and
regulatory powers. Reconstruction or improvement of the access may be required
when the permittee has failed to meet required specifications of design or
materials.
(12) If any construction
element fails within two years due to improper construction or material
specifications, the permittee shall be responsible for all repairs. Failure to
make such repairs may result in suspension of the permit and closure of the
access.
L.
Inspection of access:
(1) The
permittee shall employ a qualified construction inspector to ensure that the
conditions of the access permit are met unless otherwise determined necessary
by the district engineer's designee. The district engineer, or the district
engineer's designee, may inspect the access during construction and upon
completion of the access to ensure that all terms and conditions of the permit
are met. Inspectors are authorized to enforce the conditions of the permit
during construction and to halt any activities within state right-of-way that:
(a) do not comply with the provisions of the
permit;
(b) conflict with
concurrent highway construction or maintenance work;
(c) endanger highway property, natural or
cultural resources protected by law; or
(d) endanger the health and safety of workers
or the public.
(2) The
permittee shall ensure that a copy of the permit is available for review at the
construction site at all times. The permit may require the contractor to notify
the district representative noted on the permit at any specified phases in
construction to allow a field inspector to inspect various aspects of
construction such as concrete forms, subbase, base course compaction, and
materials specifications. Minor changes and additions may be ordered by the
department field inspector to meet unanticipated site conditions. The
department may require the permittee to hire a New Mexico registered
professional civil engineer to affirm to the best of the engineer's knowledge
that the construction is in compliance with the permit and department
specifications. The department may require testing of materials. When required,
test results shall be provided to the department.
(3) Each permittee understands and agrees as
a condition of issuance of any permit, that if the department determines that
any violation has or may result in the creation or existence of any safety or
traffic hazard, the department may immediately take such action as the
department deems necessary to correct, eliminate or mitigate such hazard,
without the need for the completion of any review process.
M.
Maintenance of access: The
permittee, his or her heirs, successors-in-interest, assigns, and occupants of
the property serviced by the access shall be responsible for meeting the terms
and conditions of the permit. This shall consist of, but not be limited to, the
repair and maintenance of the access beyond the edge of the roadway including
any cattle guard and gate, and the removal of snow or ice upon the access even
though deposited on the access in the course of department snow removal
operations. Any significant repairs, such as culvert replacement, resurfacing,
or changes in design or specifications, require authorization from the
department. The department shall maintain the roadway including auxiliary lanes
and shoulders, except in those cases where the access installation has failed
due to improper access construction or failure to follow permit requirements
and specifications (see Subsection K, Paragraph 12 of 18.31.6.14 NMAC). In this
case, the permittee shall be responsible for such repair.
(1) Within unincorporated areas, the
department shall keep access culverts clean as part of maintenance of the
highway drainage system. However, the permittee shall be responsible for the
repair and replacement of any access-related culverts within the
right-of-way.
(2) Within
incorporated areas, drainage responsibilities for municipalities shall be
determined by statute and local ordinance.
N.
Indemnification: The
department and its duly appointed agents and employees shall be held harmless
against any action for personal injury or property damage sustained by reason
of the exercise of the permit.
O.
Revocations:
(1) Where a change
in property use occurs or a property's basic vehicular usage changes, so as to
impact the highway, and the existing access points do not comply with 18.31.6
NMAC, the owner shall apply for a new access permit and reconstruct the
driveways to comply with the rule.
(2) If, at the sole discretion of the
department, it is determined that a permittee is in violation of 18.31.6 NMAC
or any conditions of the access permit, the department, acting through the
district engineer, or the district engineer's designee, for the district where
the driveways are located, shall inform the permittee in writing of the
violations and allow the permittee 30 days to correct the violations.
(3) If, after 30 days, the violations are not
corrected, the district engineer, or the district engineer's designee, may
issue a written notice of revocation of the permit.
(4) The permittee may request a hearing on
the revocation of the permit by giving written notice to the district office
within 10 days of the written notice of the revocation.
(5) The requested hearing shall be held no
later than 30 days after receipt of the written notice of hearing. The
department's representatives shall be the district engineer and the district
traffic engineer, or their designees. After the hearing, the district engineer,
or the district engineer's designee, shall issue a written decision.
(6) The permittee may appeal that decision to
the deputy secretary for highway operations or designee by giving written
notice of a request for an appeal to the district office within 10 days of the
date of the district's written decision.
(7) The deputy secretary for highway
operations, or the deputy's designee, shall hear the appeal within 30 days of
receipt of the request for an appeal.
(8) The decision of the deputy secretary, or
the deputy's designee, shall be final and this decision completes the
administrative review process.
(9)
After the review process, or at any stage if the conditions set out in
Paragraph (10) of Subsection G of 18.31.6.14 NMAC occurs, the district
engineer, or the district engineer's designee, may take whatever action is
appropriate including, but not limited to, physically closing the driveway with
barriers or signing, and the department may refuse to issue future permits to
the permittee until the violations are corrected. The permittee shall be
responsible for costs, labor and material provided by the department for such
actions.
(10) Each permittee
understands and agrees as a condition of issuance of any permit, that if the
department determines that any violation has or may result in the creation or
existence of any safety or traffic hazard, the department may immediately take
such action as the department deems necessary to correct, eliminate or mitigate
such hazard, without the need for the completion of any review process. The
permittee shall be responsible for costs, labor and material provided by the
department for such actions.