MassHighway Issues Highway Access Regulations

Beveridge & Diamond, P.C. - Massachusetts Environmental & Land Use Alert, November 2007

The Massachusetts Highway Department (“MassHighway”) has adopted regulations governing permits for access the state highways, including both Non-Vehicular Access Permits and Vehicular Access Permits, also known as curb cut permits.  The regulations, at 720 CMR 13.00, provide a timetable for review of applications, detail the required content of applications, provide criteria for review, and outline the administrative appeals process.  The regulations took effect November 2, 2007. 

The regulations define a three-stage review process for applications and also set deadlines for each stage of review that should not exceed a total of three to five months for most applications.  Upon receipt of an application, MassHighway will review that application for completeness and inform the applicant within 10 days if the application is considered complete so that the detailed review period may begin. 

The detailed review timeline varies based on the type of permit sought.  There are three categories of permits:  Category I Permits (Minor Vehicular Access Permits); Category II Permits (Major Vehicular Access Permits); and Category III Permits (Complex Vehicular Access Permits).  Category I permits generally are for driveways and small project access that require little to no non-signalized modifications and do not significantly alter existing traffic patterns.  Category II permits are required for projects involving major access points, new street intersections, signalization or other significant modifications.  Category III permits are required for actions similar to those requiring Category II permits, but that affect several intersections, involve the construction of or alteration to a bridge, or require a new or altered state highway layout. 

For Category I Permits, detailed review of the first submission (ordinarily the 25% design) shall be completed within 20 business days following a determination that the application is complete.  Detailed review of the second submission (ordinarily the 75%/100% design) will be completed within 20 days of receipt.  Detailed review of the final submission (normally the final plans, specifications and estimates (“PS&E”)) shall be completed within 10 business days of receipt.  For Category II Permits, the detailed review of the first submission will be completed within 35 business days; the second submission review completed within 20 business days; and the final submission review completed within 20 business days.  For Category III Permits, the review submissions and time frames will be negotiated by the applicant and MassHighway.

If MassHighway fails to meet any of the timeframes set by the regulations, the applicant may notify a designated MassHighway official, who is charged with ensuring that the review is completed no later than five business days after receipt of the notification.  Once the PS&E final submission is approved, the permit shall issue within five business days.  If it does not, the applicant can notify the MassHighway Chief Engineer, who is responsible for ensuring that the permit issues within two business days.

An applicant aggrieved by the issuance, denial, modification, suspension, or revocation of a Vehicular Access Permit may appeal in writing to the Commissioner and is entitled to a hearing in accordance with the Administrative Procedures Act, G.L. c. 30A, § 13.

The regulations also provide for the recording of permits.  After the expiration of all appeal rights, applicants are required to record any Vehicular Access Permit or any Non-Vehicular Access permit involving drainage at the appropriate registry of deeds.  Permits will not be effective until recorded and a notice of recording submitted to the District Highway Director.

The regulations provide criteria for the review of applications and incorporate the 13 controlling criteria listed in the Massachusetts Highway Department Project Development and Design Guide.  Deviation from these 13 criteria requires formal approval of design exceptions.  If a design exception is sought, an additional 20 business days will be added to the timelines outlined above for review of the application.

For those projects triggering review under the Massachusetts Environmental Policy Act (“MEPA”), the regulations seek to coordinate the MassHighway permitting process with MEPA review. The regulations specifically reference efforts to minimize damage to the environment caused by transportation-related air pollution, including greenhouse gas emissions.  The regulations define “substantial increase in or impact on traffic” consistently with the MEPA Greenhouse Gas Emissions Policy and Protocol, so that a project may trigger a greenhouse gas emissions review under MEPA if it generates more than 2,000 vehicle trips per day; 1,000 trips and construction of 150 new parking spaces; or 300 new parking spaces.”  The regulations also provide that a project may be determined to have a “substantial increase in or impact on traffic” if MassHighway finds it is likely to generate “a significant impact on traffic flow and safety.”

For further information, please contact Brian Levey at blevey@bdlaw.com, Marc Goldstein at mgoldstein@bdlaw.com, ot Krista Hawley at khawley@bdlaw.com.