N.M. Admin. Code § 18.31.6.14

Current through Register Vol. 35, No. 23, December 10, 2024

Section 18.31.6.14 - PERMITTING PROCESS

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.

N.M. Admin. Code § 18.31.6.14

18.31.6.14 NMAC - Rp, 18 NMAC 31.6.10, 10/15/2001, Adopted by New Mexico Register, Volume XXVIII, Issue 12, June 27, 2017, eff. 6/27/2017