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Development Permits: Curb Cuts

When it comes to development permits, one of the most crucial considerations is to provide for lawful, adequate ingress and egress to existing adjacent streets.

Vehicular access to streets-including via new roads, residential driveways and commercial parking lots-is largely regulated at the local level, but also at the state level if direct access to a state-owned road is desired.

For access to city or town-owned roads, the design standards for curb cuts to existing street curbs (i.e. for a driveway or a new road) are generally found within the parameters of the zoning code and/or subdivision control regulations, depending on the nature of the proposed development.

Under the zoning code, driveway placement and curb cut design guidelines are generally found within the context of the special permit approval process and/or site plan review. Communities use limitations on the number and location of curb cuts as a way to limit development per site. For proposed subdivisions, the subdivision regulations usually mandate the placement and spacing of driveways and new subdivision roads, sight distance requirements, and intersection off-sets, including within the context of accessing existing local roads.

Additionally, some communities require a separate curb cut permit from the inspectional services department or the department of public works. In those instances, an application (with supporting documents) and filing fee are typically required. Approval of a curb cut permit application is usually dependent on compliance with zoning regulations, inter-departmental review, and submission of a plan detailing the location of the proposed curb cut or driveway, among other things. In some cities and towns, a curb cut permit approval is required before any building permits can be issued. These permits are usually limited in duration, requiring the developer to complete the curb cut work within a specified timeframe.

For access to or openings onto state-owned roads, the Massachusetts Department of Transportation (MassHighway) requires a separate layer of permitting: a Vehicular Access Permit.

Under 720 CMR 13.00 (Approval of Access to State Highways), MassHighway requires Vehicular Access Permits for new residential or commercial driveways or streets intersecting with the state highway layout (SHLO). Additionally, any physical modifications to existing curb cuts intersecting with the SHLO, or any change in use to an existing residential or commercial driveway that results in an substantial increase in or impact on traffic over the current use also requires such a permit.

To obtain a Vehicular Access Permit (curb cut permit) from MassHighway, developers must submit an application and supporting documentation. There are three categories of Vehicular Access Permits, largely dependent on the nature of necessary roadway modifications, signalization requirements and/or whether MEPA review is needed for the overall project.

Fortunately, the MassDOT regulations were amended in 2007 to provide developers with a more business-friendly, expedited Vehicular Access Permit process that takes place in three phases, with most application reviews being completed within 50-75 business days. Once approved, the MassDOT Vehicular Access Permit must be recorded in the appropriate registry of deeds.

In those instances where the curb cut permit has been denied, whether it be at the local or state level, the developer fortunately has an opportunity to appeal the decision. At the local level, appeals are filed either with the zoning board of appeals or in the trial court, depending on the municipal authority that denied the permit. For denials issued by MassHighway, the applicant can appeal to the MassHighway Commissioner, with an opportunity for a hearing.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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