Titles of Regulations: 24VAC30-20. General Rules and Regulations of the Commonwealth Transportation Board (repealing 24VAC30-20-10 through 24VAC30-20-180).

24VAC30-21. General Rules and Regulations of the Commonwealth Transportation Board (adding 24VAC30-21-10 through 24VAC30-21-60).

Statutory Authority: § 33.1-12 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 16, 2011.

Effective Date: March 3, 2011.

Agency Contact: Robert H. Hofrichter, Assistant Director for Land Use, Department of Transportation, 1401 East Broad Street, Richmond, VA 23219, telephone (804) 786-0780, FAX (804) 786-0628, or email robert.hofrichter@vdot.virginia.gov.

Basis: Section 33.1-12 of the Code of Virginia confers upon the Commonwealth Transportation Board (CTB) broad general authority at its discretion to promulgate regulations affecting transportation on the state highway system within the current framework of state statutes.

Purpose: The CTB, Virginia Department of Transportation (VDOT), and the Commissioner of VDOT have all been involved in promulgating or amending a variety of regulations concerning land use and regulation of entrances in recent years. In particular, major initiatives mandated by the General Assembly have affected the content of the existing General Rules and Regulations of the Commonwealth Transportation Board (24VAC30-20) (General Rules).

Chapters 863 and 928 of the 2007 Acts of Assembly amended §§ 33.1-13, 33.1-198, and 33.1-199 of the Code of Virginia, and added § 33.1-198.1 to the Code of Virginia. The legislation requires the commissioner to develop comprehensive highway access management regulations and standards to preserve and improve the efficient operations of the state systems of highways. The regulations and design standards are used to manage the location, number, and spacing and design of entrances and intersections, including median openings, turn lanes, traffic signals, and interchanges on the systems of state highways.

Two bills were introduced in the 2008 Session of the General Assembly that addressed VDOTs promulgation of these access management regulations. Chapters 274 and 454 (2008) amended the enactment clauses of Chapters 863 and 928 of the 2007 Acts of Assembly to provide for the access management regulations to be promulgated in phases. The first phase resulting in the promulgation of Access Management Regulations: Principal Arterials (24VAC30-72), effective July 1, 2008, was exempted from the requirements of the Administrative Process Act (APA). The subsequent phase resulting in the promulgation of Access Management Regulations: Minor Arterials, Collectors, and Local Streets (24VAC30-73), effective October 14, 2009, was subject to the APA.

Promulgation of the two phases of the access management standards affect the content of the new Land Use Permit Regulations (LUPR), intended to replace the existing Land Use Permit Manual (LUPM), and the Minimum Standards of Entrances to State Highways (24VAC30-71) (Minimum Standards), both of which address in detail the regulation of entrances. An entire part of the LUPM and all of the Minimum Standards have become obsolete. Because the existing General Rules reference the LUPM and the Minimum Standards, an amendment (or replacement) of that regulation is necessary. Based on the fundamental changes to how land use and entrances are to be regulated, and the fact that the existing General Rules have been virtually unchanged since 1974, VDOT believes it is necessary to update the provisions of the General Rules to reflect these changes. Furthermore, due to comprehensive extent and nature of the changes, VDOT believes it is appropriate to repeal the existing General Rules and promulgate a new regulation.

The regulation sets forth the rules under which work of any nature may be performed on any property under the ownership, control, or jurisdiction of the CTB or VDOT. These rules are intended to protect the health, safety, and welfare not only of those performing the work but also of the traveling public in general. Without provisions governing work performed on CTB or VDOT property, health, safety, and welfare may be at risk. This action in particular updates statutory references and removes duplicative provisions to ensure a clear, defensible regulation.

Rationale for Using Fast-Track Process: The Access Management Regulations: Minor Arterials, Collectors, and Local Streets have been promulgated in accordance with the requirements of the APA. Repeal of the LUPM and promulgation of the LUPR have been approved by the CTB, and these actions are being implemented in accordance with the APA, including the provisions of Article 2, which mandate the Executive Branch review process. As part of the regulatory process, VDOT has provided for public comment and public discussion of significant issues relating to the subjects of land use, regulation of entrances, and access management. Because these issues and public concerns have already been addressed, VDOT does not believe that the repeal of the existing regulations in 24VAC30-20 and the promulgation of the new regulations in 24VAC30-21 will be controversial.

Substance: The new regulations retain the same overall framework of the existing regulations, but have updated material on the permit process and regulation of entrances and exclude material addressed in greater detail in other regulations, such as penalties for violations.

Issues: The public will benefit from having obsolete or redundant provisions removed from the new regulation because the chance of confusion will be minimized. There are no disadvantages to the public when regulations are clear, accurate, and up to date.

The Commonwealth will also benefit from having obsolete or redundant provisions removed from the new regulation because the regulatory text will be concise and more clearly understood. There are no disadvantages to the Commonwealth when regulations are clear, accurate, and up to date.

The regulated community will find that the relationship between the new General Rules and related regulations has not changed: overall policy is addressed in the new General Rules, just as in the existing General Rules, but specific regulatory provisions concerning land use and access to CTB-controlled rights-of-way are addressed in dedicated regulations, where more detail can be provided. The only difference is that the new General Rules have been updated and streamlined to remove obsolete and redundant provisions.

VDOT believes there are no disadvantages to the public or the Commonwealth associated with this regulatory action.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Commonwealth Transportation Board (Board) proposes to repeal 24VAC30-20 and replace it with 24VAC30-21, keeping the title General Rules and Regulations of the Commonwealth Transportation Board. Through this action the Board proposes to: 1) update statutory and administrative law references, 2) eliminate provisions that are duplicative of provisions in other regulations or are obsolete, and 3) update definitions.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The proposed updating of statutory and administrative law references and definitions, as well as the elimination of provisions that are duplicative of provisions in other regulations or are obsolete, will be beneficial for the public. Clarity of the law will be improved and citizens may need to spend less time understanding the law, and may be less likely to misunderstand requirements.

Businesses and Entities Affected. The proposed amendments potentially affect individuals, businesses, and other entities performing work or participating in permitted activities on state-owned property controlled by the Board. According to the Virginia Department of Transportation, in Fiscal Year 2009 there were 1,813 private entrance permits, 729 commercial entrance permits, 7,063 utility permits, and 1,547 other permits issued.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposal amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 107 (09). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The Virginia Department of Transportation concurs with the economic impact analysis prepared by the Department of Planning and Budget concerning the repeal of 24VAC30-20 and promulgation of 24VAC30-21 under the same title (General Rules and Regulations of the Commonwealth Transportation Board).

Summary:

This fast-track action repeals an existing regulation, General Rules and Regulations of the Commonwealth Transportation Board (24VAC30-20) and replaces it with a new regulation of the same title but a different Virginia Administrative Code number, 24VAC30-21. The existing regulations were promulgated to set forth the conditions under which the Virginia Department of Transportation (VDOT), on behalf of the Commonwealth Transportation Board (CTB), will grant permits for performing work on state-owned property controlled by the CTB. The existing regulation also specifies permitted and prohibited activities on state-owned rights of way.

The new regulations update statutory and administrative code references, eliminate provisions that are duplicative of provisions in other regulations or are obsolete, and update definitions.

CHAPTER 21
GENERAL RULES AND REGULATIONS OF THE COMMONWEALTH TRANSPORTATION BOARD

24VAC30-21-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Board" means the Commonwealth Transportation Board.

"Commissioner" means the Commonwealth Transportation Commissioner, the individual who serves as the chief executive officer of the Virginia Department of Transportation (VDOT) or his designee.

"Commonwealth" means the Commonwealth of Virginia.

"Right of way" means that property within the entire area of every way or place of whatever nature within the system of state highways under the ownership, control, or jurisdiction of the board or VDOT that is open or is to be opened within the future for the use of the public for purposes of travel in the Commonwealth. The area set out above includes not only the traveled portion but the entire area within and without the traveled portion, from boundary line to boundary line, and also all parking and recreation areas that are under the ownership, control, or jurisdiction of the board or VDOT.

"System of state highways" means all highways and roads under the ownership, control, or jurisdiction of the board including, but not limited to, the primary, secondary, and interstate systems.

"VDOT" means the Virginia Department of Transportation, the Commonwealth Transportation Commissioner, or a designee.

24VAC30-21-20. General provisions concerning permits.

A. No work of any nature shall be performed on any real property under the ownership, control, or jurisdiction of the board or VDOT including, but not limited to, the right of way of any highway in the system of state highways until written permission is first obtained from VDOT. Written permission under this section is granted by way of permit. In addition, the letting of a contract by and between VDOT and any other party grants to that party automatically such permission for the area under contract, unless otherwise stated in the contract. VDOT is authorized to establish specific requirements for such permits including, but not limited to, permit authority, application procedure, and conditions under which a permit may be denied or revoked.

B. No land use permit shall be issued until the applicant has complied with the conditions set forth in and pursuant to applicable VDOT regulations filed as part of the Virginia Administrative Code.

C. Applicants to whom permits are issued shall at all times indemnify and save harmless the board, members of the board, the Commonwealth, and all Commonwealth employees, agents, and officers from responsibility, damage, or liability arising from the exercise of the privileges granted by these permits.

D. Any structure placed upon or within the right of way pursuant to a permit issued by VDOT shall be relocated or removed whenever ordered by VDOT. Such relocation or removal shall be accomplished at no expense to the Commonwealth unless VDOT agrees or has agreed otherwise.

24VAC30-21-30. General provisions concerning use of right of way.

A. No person, firm, or corporation shall use or occupy the right of way of any highway for any purpose except travel, except as may be authorized by VDOT, either pursuant to regulation or as provided by law.

B. Except as permitted by subdivision 2 of this subsection, the following restrictions apply to activities occurring on bridges forming a part of the system of state highways:

1. No person, firm, or corporation shall stand or park a vehicle of any description on any bridge unless authorized by VDOT.

2. No person shall fish or seine from any bridge except when facilities are provided for such purposes as set out in § 33.1-207 of the Code of Virginia.

3. No person, firm, or corporation shall use any bridge as a wharf from which to load or unload any vehicle, as a place of deposit for any property, or for any other purpose except crossing.

4. No master or owner of any vessel shall make it fast to or lay it alongside such bridge.

5. Provisions of this subsection shall not apply to highway maintenance vehicles or vessels.

C. No person, firm, or corporation shall, without the consent of VDOT, remove, injure, destroy, break, deface, or in any way tamper with any property, real or personal, that is growing or has been placed on the right of way of any highway within the system of state highways by or with the consent of VDOT.

D. No person, firm, or corporation may cause water to flow from any source upon the right of way of any highway within the system of state highways, nor shall any person, firm, or corporation cause any increase of the water, at present, lawfully on the right of way of any highway or concentrate the flow of water upon the right of way of any highway in the system of state highways without the written consent of VDOT.

E. No road, railroad, or tracks of any description shall be laid along, upon, or across any portion of a highway in the system of state highways without the written consent of VDOT.

24VAC30-21-40. Board authority to regulate entrances from adjacent property to right of way of highways within the state highway system.

The board, under subdivision 3 of § 33.1-12 of the Code of Virginia, reserves the power to regulate entrances from adjacent property upon the right of way of any highway within the system of state highways. No entrance of any nature shall be made, built, or constructed upon the right of way of any highway within the system of state highways until the location has been determined in the opinion of the commissioner or designee of VDOT to be acceptable from a public safety standpoint and, further, until approval has been granted by VDOT. The design and construction of such entrances as approved by the commissioner pursuant to §§ 33.1-198 and 33.1-198.1 of the Code of Virginia must comply with VDOT's regulations where applicable.

24VAC30-21-50. Placement of airport or heliport facilities.

No airport runways, heliports, or similar facilities either private or commercial, shall be placed adjacent to highway rights of way in such a manner as to impede the safe flow of vehicular traffic. Runways or similar facilities shall be placed a proper distance to allow a minimum glide slope for aircraft of 3 approaching said runway, or at a height over the roadway of 30 feet, whichever is greater. All airports or heliports, or both, proposed in the vicinity of highway rights of way shall take these minimum road clearances into consideration when planning the location of the end of their runways.

24VAC30-21-60. Use of electronic means for submitting documents or payments.

Where practicable, VDOT shall allow the alternative of submitting any documents or payments by electronic means.