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PA Bulletin, Doc. No. 18-1198




[ 67 PA. CODE CH. 441 ]

Access to and Occupancy of Highways by Driveways and Local Roads

[48 Pa.B. 4624]
[Saturday, August 4, 2018]

 The Department of Transportation (Department), under section 420 of the State Highway Law (36 P.S. § 670-420), amends Chapter 441 (relating to access to and occupancy of highways by driveways and local roads) to read as set forth in Annex A.

Purpose of Chapter 441

 The purpose of Chapter 441 is to exercise the Department's statutory authority to promulgate a regulation controlling the safe location, design, construction and maintenance of: driveways; local roads; drainage facilities; structures; means of ingress, egress and access; and other property within the State highway right-of-way.

Purpose of this Final-Form Rulemaking

 The purpose of this final-form rulemaking is to clarify the provisions relating to who may apply for a permit to construct or alter driveways; local roads; drainage facilities; structures; means of ingress, egress and access; and other property within the State highway right-of-way, and to set forth application requirements that strike a careful balance between the interested parties' property rights.

Significant Provisions of this Final-Form Rulemaking

 Significant amendments to Chapter 441 include the following:

 The amendments to § 441.1 (relating to definitions) delete the definition of ''own,'' amend the definition of ''person'' and add the term ''owner.'' Most significant is the term ''owner,'' which clarifies that ownership of legal interests are not limited to owners of property holding fee absolute title or certain leasehold interests.

 The amendments to § 441.3(b) (relating to permit application procedure) use the term ''owner'' and to require an applicant that is not the holder of fee title to the property to notify the fee title holder that an application has been submitted. Section 441.3(e)(6) is amended to require applicants to prove that they are an ''owner,'' where the proof must be in the form of a copy of the valid legal document or court order verifying the applicant's legal estate or interest in the property. Section 441.3(e)(7)(i) is added to require applicants other than fee title holders to submit additional information, including proof that either: 1) the fee title holder consents to the application; or 2) the applicant provided notice of the submission of the application to the fee title holder apprising the fee title holder of the administrative rights available to the fee title holder. The Department will not grant or deny the permit application until 30 days from the fee title holder's receipt of notice.

 Section 441.3(e)(7)(ii) also requires applicants other than fee title holders to submit a written statement whereby the applicants indemnify and defend the Department from suits, damages, claims and demands of any type brought by the fee title holder because of the Department granting a permit to the applicant. Lastly, under § 441.3(e)(7)(iii), applicants other than fee title holders shall provide proof that a covenant running with the land has been recorded to ensure that subsequent property owners are bound to the indemnification provisions in § 441.3(e)(7)(ii).

Summary of Comments and Changes

 Notice of proposed rulemaking was published at 48 Pa.B. 1563 (March 17, 2018), with a 30-day public comment period. Accordingly, the public comment period opened on March 17, 2018, and closed on April 16, 2018. The Department received four comments during the public comment period, three from two public commentators (one commentator submitted two comments), and one from Representative Brett R. Miller, 41st Legislative District. Thereafter, the Independent Regulatory Review Commission's (IRRC) 30-day review period began. IRRC submitted comments to the Department on May 16, 2018.

 The Department carefully reviewed and considered each comment submitted by the public and IRRC. The Department prepared a comment and response document, which reflects each comment and the Department's response. The comment and response document was submitted to IRRC and is available on its web site at (search ''18-479'') or upon request through the information provided in the Contact Person section of this final-form rulemaking. A summary of the most significant comments and changes between the proposed and final rulemakings follows.

 Concerns raised throughout the public and IRRC comments stem from the contention that the Department is ''choosing sides'' in a conflict between competing property interest holders. In sum, these comments, which conflate the issuance of a highway occupancy permit with making legal determinations impacting property rights, are misguided. Either through negotiations or following a final determination of a court or other judicial entity, third parties obtain property rights that are less than and may not be consonant with the rights of a fee title holder. Chapter 441 does not address that conflict.

 Instead, the purpose of Chapter 441 is ''to regulate the location, design, construction, maintenance and drainage of access driveways, local roads, and other property within State highway right-of-way for the purpose of security, economy of maintenance, preservation of proper drainage and safe and reasonable access.'' See § 441.2(a) (relating to purpose and application). The Department does not adjudicate property interests through the highway occupancy permit process, but rather assesses whether an applicant has established an already-existing property interest with a right to access for the purposes of granting a highway occupancy permit.

 If a third party has an easement over the land of another and the only way to use, and give effect to, that easement is to access the easement from the State highway right-of-way, the Department must grant a highway occupancy permit or face legal action from the holder of the easement, who would have a valid legal claim that the Department's refusal to grant a highway occupancy permit is a de facto taking of property because a refusal would be tantamount to interfering with the rights of the easement holder. See, for example, Duquesne Light Company v. Longue Vue Club, 63 A.3d 270, 279 (Pa. Super. Ct. 2013), regarding the rights of easement holders, and Turner v. Reynolds, 23 Pa. 199, 206 (Pa. 1854), regarding rights of possession.

 Comments focusing on impacts to fee title holders are not entirely accurate in their characterization of the net effect of this chapter. This chapter does not restrict fee title holder rights but instead gives fee title holders notice of third-party highway occupancy permit applications and encourages fee title holders' participation in the permitting process (both at the issuance and appellate levels). The determination of the fee title holders' rights vis-á-vis a third-party interest in real property is not negotiated or adjudicated as part of the highway occupancy permit process and this fact should not be lost in the numerous public comments. Stated otherwise, to the extent that the fee title holder's rights have been ''restricted'' by the granting of a property interest to a third party—such as a through the eminent domain process—that property interest has been already established (and shall be proven) at the time the third party applies for the highway occupancy permit, or the Department would not grant the permit.

 As previously noted, each public, legislative and IRRC comment is fully addressed in the Department's comment and response document. Changes based on those comments have been made to the Regulatory Analysis Form as requested by IRRC.

Persons and Entities Affected

 This final-form rulemaking affects all applicants for highway occupancy permits to access State highways who intend to create an access point to a State highway or to change the design, operation or location of existing access. These applicants include owners of legal interests in property who require access to the property to exercise their property rights, such as easement holders and mineral estate holders, as well as fee title holders.

 This final-form rulemaking carefully balances the interest of all interested parties. When the applicant does not hold fee title, the fee title holder shall be notified that an application has been submitted, which provides the fee title owner an opportunity to object to the application process under 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure), specifically 1 Pa. Code §§ 35.23 and 35.24 (relating to protests) and 1 Pa. Code §§ 35.27—35.32 (relating to intervention). Objections in the form of a protest or intervention can be filed with the Department through its administrative docket.

Fiscal Impact

 This final-form rulemaking should not increase costs for the Commonwealth or local governments. New fiscal impacts to the regulated community are not anticipated because the amendments are consistent with current practices that have been in place since 2002.

Regulatory Review

 (Editor's Note: The Regulatory Review section of the proposed rulemaking contained an error regarding the year of filing of the proposed rulemaking. The following date is correct.)

 Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on March 8, 2018, the Department submitted a copy of the notice of proposed rulemaking, published at 48 Pa.B. 1563, to IRRC and the Chairpersons of the House and Senate Transportation Committees for review and comment.

 Under section 5(c) of the Regulatory Review Act, the Department is required submit to IRRC and the House and Senate Committees copies of comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, Representative Miller and the public.

 Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)), on June 27, 2018, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on June 28, 2018, and approved the final-form rulemaking.

Sunset Provisions

 The Department is not establishing a sunset date for these regulations since these regulations are needed to administer provisions required under section 420 of the State Highway Law. The Department will continue to closely monitor these regulations for their effectiveness.

Contact Person

 The contact person for this regulation is Jeffrey M. Spotts, Regulatory Counsel, Department of Transportation, Commonwealth Keystone Building, 400 North Street, Harrisburg, PA 17120-8212, (717) 787-5299,


 The Department finds that:

 (1) Public notice of the proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P.L. 769, No. 240) (45 P.S. §§ 1201 and 1202) and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

 (2) A public comment period was provided as required by law, and all comments were considered.

 (3) These regulations do not enlarge the purpose of the proposed rulemaking published at 48 Pa.B. 1563.


 The Department orders that:

 (a) The regulations of the Department, 67 Pa. Code Chapter 441, are amended by amending §§ 441.1 and 441.3 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.

 (b) The Secretary of the Department shall submit this order and Annex A to IRRC and the Senate and House Committees as required under the Regulatory Review Act (71 P.S. §§ 745.1—745.14).

 (c) The Secretary of the Department shall submit this order and Annex A to the Office of Attorney General for approval as to legality and form as required by law.

 (d) This order shall take effect upon publication in the Pennsylvania Bulletin.


 (Editor's Note: See 48 Pa.B. 4189 (July 14, 2018) for IRRC's approval order.)

Fiscal Note: Fiscal Note 18-479 remains valid for the final adoption of the subject regulations.

Annex A






§ 441.1. Definitions.

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

*  *  *  *  *

Minimum use driveway—A residential or other driveway which is used or expected to be used by not more than 25 vehicles per day.

Owner—A person holding:

 (i) fee title to property,

 (ii) an estate or other legal interest in property, such as an easement, a lease, a license or subsurface rights, or

 (iii) an equitable interest in property under a sales agreement or an option to purchase;

 provided that the estate or other legal or equitable interest in property includes the use requested in the permit.

Pavement edge—The edge of the main traveled portion of any highway, exclusive of shoulder.

Permanent curbing—Plain or reinforced cement concrete curb which meets Department standards.

Permit—A highway occupancy permit (Form M-945P) issued by a district office pursuant to this chapter.

Person—An individual, business entity, association, political subdivision, authority, Federal or Commonwealth agency, or other entity recognized by law.

*  *  *  *  *

§ 441.3. Permit application procedure.

 (a) General rule. No driveway, local road or drainage facility or structure shall be constructed or altered within State highway right-of-way and no drainage facility of the Department may be altered or connected onto without first obtaining a permit from the Department. A permit may not be required for maintenance.

 (b) Who may apply for a permit. Permit applications shall be submitted in the name of the owner of the property. If the applicant does not hold fee title to the property, the applicant shall notify the fee title holder that an application has been submitted.

 (c) Where to submit application. Permit applications shall be submitted to either the district or county office having jurisdiction over the county in which the proposed work will be performed.

 (d) When to submit applications. Permit applications shall be submitted prior to the construction of any building which the proposed driveway will serve to assure that the driveway can be constructed in accordance with this chapter.

 (e) Application procedure and required information. Permit applications:

 (1) Shall be submitted in person or by mail on a properly completed Department Form M-945A.

 (2) Shall be signed by the applicant.

 (3) Shall include five sets of plans, of a quality sufficient for microfilming, detailing the location and pertinent dimensions of both the proposed installation and related highway features.

 (4) Shall be accompanied by a check or money order, payable to the Department, in the appropriate amount, as set forth in § 441.4 (relating to permit fees).

 (5) Shall be submitted to the Department at least 30 days prior to the anticipated start of work.

 (6) Shall contain proof that the applicant is an owner. The proof shall be in the form of a copy of the valid legal document or court order verifying the applicant's legal estate or interest in the property.

 (7) Shall, when submitted by an applicant other than a fee title holder, contain:

 (i) Proof of one of the following:

 (A) The fee title holder consents to the application.

 (B) The applicant provided written notice of the submission of the application to the fee title holder apprising the fee title holder of the administrative rights relative to the permit application under 1 Pa. Code §§ 35.23, 35.24 and 35.27—35.32. The Department will not grant or deny the permit application until 30 days after receipt of the written notice by the fee title holder.

 (ii) A signed written statement, whereby the applicant agrees to indemnify and defend the Commonwealth (if requested) from all suits, damages, claims and demands of any type whatsoever by the fee title holder of the property because of granting the permit to the applicant, such as a failure of the permittee or other person to comply with the permit or any other statutes, ordinances or regulations in connection with the permit.

 (iii) Proof that the applicant executed and recorded in the Office of the Recorder of Deeds in the appropriate county or counties, a covenant running with the land providing that all subsequent purchasers, heirs, assigns or transferees of the property take the property subject to the indemnification in subparagraph (ii), unless released by the Department.

 (f) Traffic control plan. Submission of the traffic control plan shall be as follows:

*  *  *  *  *

[Pa.B. Doc. No. 18-1198. Filed for public inspection August 3, 2018, 9:00 a.m.]

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