As historic roads are increasingly recognized a unique
resources deserving of special management considerations
and administrative accommodation, a number of states have
issued policy statements that direct transportation departments
to undertake specific actions or activities related to a
historic road or roads. Policy statements carry legislative
authority and require legal actions that can greatly assist
in the proper analysis and management of a historic road.
The following represent a wide range of policy statements
for historic roads from Connecticut, Hawaii and Oregon.
State of Connecticut
The following statement was issued by the Commissioner
of Transportation in Connecticut regarding the Connecticut
Department of Transportation’s policy toward the Merritt
Parkway. Since this statement was issued the parkway was
designated a National Scenic Byway by the US Secretary of
CONNECTICUT DEPARTMENT OF TRANSPORTATION POLICY STATEMENT
Policy No. P-5
June 27, 1994
Subject: Policy on General Maintenance
and Transportation Improvements for the Merritt Parkway
It is the Department’s policy that the Merritt
Parkway should receive special treatment, particularly
in the areas of design, landscape, and maintenance procedures.
This policy is based on the Merritt Parkway’s
listing in the National Register of Historic Places,
its designation as a State Scenic Road, and its aesthetic
Parkway is a distinct type of roadway having an important
aesthetic value, in addition to its vital transportation
function. It is the Department’s responsibility
to maintain this crucial transportation artery as a
safe and efficient roadway while also preserving and
enhancing it as an important State scenic, cultural,
and historic resource.
meeting this policy, all Merritt Parkway transportation
improvements and maintenance activities shall be undertaken
in accordance with the Department’s Merritt Parkway
Guidelines for General Maintenance and Transportation
Emil H. Frankel
The following sample legislation (SB 1876) represents
one approach to establishing a historic roads focus
and commitment to flexible design and context sensitive
solutions for historic roads in Hawaii.
BILL FOR AN ACT RELATING TO HIGHWAYS.
BE IT ENACTED BY THE LEGISLATURE
OF THE STATE OF HAWAII:
SECTION 1. Hawaii's rural communities are the heart
and soul of the islands, reflecting the aloha spirit
and natural beauty that are the essence of our State.
As urbanization spreads throughout Hawaii, our rural
communities are at risk of losing their unique identities.
The imposition of uniform, conventional highway design
can significantly alter and detract from the historical
identities of these communities.
During the past decade, highway design has undergone
significant change. Today, engineers and planners are
employing greater flexibility in the way they design
road projects through context-sensitive solutions and
design. Through the use of the Federal Highway Administration
Flexibility in Highway Design book, and the American
Association of State Highway and Transportation Officials
Green Book, and A Guide for Achieving Flexibility in
Highway Design (May 2004), engineers and planners are
able to consider more than safety and efficiency when
building new roads or reconstructing old roads. These
additional design considerations include the environment,
scenic and historic preservation, community effects,
Congress expressly acknowledged the importance of flexible
highway design sensitive to the surrounding environment,
especially in historic and scenic areas. Section 1016(a)
of the Intermodal Surface Transportation Efficiency
Act of 1991 allows approval of projects designed to
allow for historic and scenic value preservation, while
ensuring safe use. Highway design under the National
Highway System Act (other than interstates) may consider
the constructed and natural environment of the area,
and the environmental, scenic, aesthetic, historic,
community, and preservation impacts of the project.
The National Highway System Act authorizes states the
flexibility to develop and apply criteria they deem
appropriate for federal-aid projects not on the National
Highway System. This federal policy framework recommends
early identification of critical project issues and
encourages thorough consideration of community concerns
and input prior to any major decision that could limit
Despite the flexibility under the Federal Highway Administration,
American Association of State Highway and Transportation
Officials, and federal law, Hawaii's state department
of transportation (DOT) has been reluctant to develop
and implement flexible design processes and guidelines
that consider historical, scenic, and environmental
impacts in highway construction.
The legislature adopts the concept of flexible highway
design and determines as a matter of policy that the
department should address these concerns by developing
a process to weigh community traditions, values, and
practices, and environmental, aesthetic, and social
impact with safety, financial, political, social, and
economic policy considerations including the department's
own institutional experience, cost benefit analysis,
and relevant studies;
to an overall highway design choice that is "reasonable",
reflects sound and accepted engineering practices, provides
a consistent driving experience, and includes reasonable
notice to highway users;
the variety of conditions that different projects may
documentation of the process and reasoning leading to
the flexible design decision, including the circumstances
of each project, the choices available, and the considerations
reviewed, as well as a complete explanation for the
decision itself; and
qualitative and safety studies where advisable.
legislature expressly finds that flexible designs are not
themselves less safe than earlier engineering practices. Rather,
flexible design is simply part of the ongoing evolution within
engineering that takes a broader range of considerations into
account than may have been done in the past. Flexible design
is not inherently less safe than some different or prior design;
flexible design is a different and broader combination of
factors to be considered in being safe.
To this end, the legislature determines
as a matter of policy that when the government chooses to
use flexibility in highway design, no legal claims or causes
of action should be made against the State, DOT, the counties,
and officers, employees, or agents of the State, DOT, the
counties, or a public utility regulated under chapter 269
that places its facilities within the highway right of way,
for the decision to select or apply flexible highway design.
The legislature further finds that community
organizations, including the Alliance for the Heritage of
East Maui, the Hanalei Road Committee on Kauai, and the Hamakua-Honokaa
Heritage Corridor on the Big Island have been working on and
support scenic byway or heritage corridor programs. The upper
Kona road on the Big Island and Ka Iwi coastal highway on
Oahu are also under review as important scenic and historic
corridors. These groups support flexible design in highway
construction to meet their community's desire to protect and
preserve natural, cultural, historic, and scenic values and
This Act also provides for a limitation of liability for government
entities by providing immunity for the decision whether to
use flexible alternatives when a flexible alternative design
guideline is selected in accordance with this Act and does
not extend to subsequent improper design, construction, maintenance,
Public utilities are also protected against
liability for the decision to apply flexibility in highway
design. For example, if the decision to utilize a specific
alternative standard requires the use of a particular type
of utility pole and precludes the use of another type, the
utility would not be liable for use of the required pole.
This immunity similarly applies only to the selection or application
of a flexible highway design and does not relieve the utility
from its subsequent responsibility of safe design, construction,
The purpose of this Act is to encourage flexibility in highway
design that ensures that road and bridge projects adequately
meet the State's transportation needs, exist in harmony with
their surroundings, are safe and cost-effective, and add value
to the communities they serve.
SECTION 2. Chapter 264, Hawaii Revised Statutes,
is amended by adding a new section to be appropriately designated
and to read as follows:
"§264- Flexibility in highway design;
liability of State, counties, and public utilities. (a) If
a highway, including any bridge, principal and minor arterial
road, collector and local road, or street, requires new construction,
reconstruction, preservation, resurfacing (except for maintenance
surfacing), restoration, or rehabilitation, the department
of transportation with regard to a state highway, or a county
with regard to a county highway, may select or apply flexible
highway design guidelines consistent with practices used by
the Federal Highway Administration and the American Association
of State Highway and Transportation Officials. Flexibility
in highway design shall consider, among other factors:
durability, and economy of maintenance;
constructed and natural environment of the area;
development plans and relevant county ordinances;
listed on the State or National Register of Historic
scenic, aesthetic, historic, community, and preservation
impacts of the activity;
for other modes of transportation, including but not
limited to bicycle and pedestrian transportation;
to and integration of sites deemed culturally and historically
significant to the communities affected;
engineering practices and standards; and
studies and other pertinent research.
Any other law to the contrary notwithstanding, the following
parties shall be immune from liability for personal injury,
death, or property damage in any accident arising out of the
decision to elect or apply flexibility in highway design pursuant
to this section and consistent with the practices used by
the Federal Highway Administration and the American Association
of State Highway and Transportation Officials:
department of transportation;
utility regulated under chapter 269 that places its
facilities within the highway right of way; or
employee, or agent of an entity listed in paragraphs
(1) to (4).
The immunity from liability provided in subsection (b) applies
only to the decision to select or apply flexibility in highway
design pursuant to this section and does not extend to design,
construction, repair, correction, or maintenance inconsistent
with subsection (a)."
SECTION 3. (a) Before June 30, 2006, the
director of transportation shall establish flexible highway
design guidelines to govern new construction, reconstruction,
preservation, resurfacing (except for maintenance surfacing),
restoration, or rehabilitation of bridges, principal and minor
arterial roads, collector and local roads, and streets. The
guidelines shall include and address the considerations set
forth in section 2 of this Act.
The guidelines shall also provide for documentation
of the facts, circumstances, and considerations involved in
the flexible design decision, including an explanation of
the process and the reasoning that led to the decision.
(b) The director shall establish a process
to allow flexible highway design to be considered when designing
improvements on the following highways:
highway, east Maui;
road, north Kauai;
heritage corridor, island of Hawaii;
Kona road, island of Hawaii; and
coastal highway, eastern Oahu.
(c) In establishing
the guidelines described under this section, the director
shall solicit and consider the views of organizations and
elected officials, including but not limited to:
with expertise in:
(A) Environmental protection;
(B) Historic preservation;
(C) Scenic conservation; and
(D) Bicycle and pedestrian transportation;
historic preservation office of the department of land
and natural resources; and
SECTION 4. New statutory
material is underscored.
SECTION 5. This Act shall take effect on July 1, 2005.
State of Oregon
The following policies directing agencies of the State of
Oregon in their management of the Historic Columbia River
Highway were established by the Legislative Assembly of Oregon.
The Historic Columbia River Highway is a National Historic
Landmark (one of two NHL’s in the United States), an
All-American Road under the National Scenic Byways Program
of the Federal Highway Administration and a National Historic
Civil Engineering Landmark.
From Oregon Revised Statutes, 1995:
Historic Columbia River Highway
366.550 "Historic Columbia River Highway"
defined. As used in ORS 366.550 to 366.553, "Historic
Columbia River Highway" means all parts of the original
Columbia River Highway, constructed between 1913 and 1922,
in Multnomah, Hood River and Wasco Counties, that have been
designated as a "Historic and Scenic Highway" under
ORS 377.100 and all properties and structures that are within
the Columbia River Highway Historic District, National Register
of Historic Places. <1987 c.382 s1>
Note: 366.550 to 366.553 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter
366 or any series therein by legislative action. See Preface
to Oregon Revised Statutes for further explanation.
366.551 Policy. The Legislative Assembly
declares that it is the public policy of the State of Oregon
to preserve and restore the continuity and historic integrity
of the remaining segments of the Historic Columbia River Highway
for public use and enjoyment and in furtherance thereof:
and manage the Historic Columbia River Highway as a
continuous visitor attraction that ties together Columbia
Gorge cities and rural service centers and contributes
to their economic development.
restore, maintain and preserve all original roadway
and highway-related structures on the intact and usable
intact and usable highway segments with recreation trails,
where feasible, to create a continuous historic road
route through the Columbia Gorge which links local,
state and federal recreation and historic sites.
a coordinated visitor information program to identify
and interpret the significance of the highway.
and enhance the scenic qualities of the highway and
its associated corridor.
To coordinate appropriate state agency activities
and funds to accomplish these purposes.
<1987 c.382 s2>
Note: See note under 366.550.
366.552 Historic road program for Historic Columbia
River Highway; footpaths and bicycle trails; acquisition of
property; cooperation with other agencies.
Department of Transportation and the State Parks and
Recreation Department shall prepare and manage a historic
road program, in consultation with the Historic Columbia
River Highway Advisory Committee and other affected
entities, consistent with the purposes of the Columbia
River Gorge National Scenic Area Act of 1986 and the
public policy of this state declared in ORS 366.551.
shall inform the advisory committee of those activities
of the departments which may affect the continuity,
historic integrity and scenic qualities of the Historic
Columbia River Highway.
shall undertake efforts to rehabilitate, restore, maintain
and preserve all intact and usable segments of the Historic
Columbia River Highway and associated state parks. The
Department of Transportation may expend funds dedicated
for footpaths and bicycle trails under ORS 366.514 to
construct footpaths and bicycle trails on those portions
of the Historic Columbia River Highway that are parts
of the state highway system or that are county roads
or city streets and the State Parks and Recreation Department
may incorporate those segments into the Oregon recreation
trails system under the provisions of ORS 390.950 to
390.989 and 390.990 (4).
may acquire real property, or any right or interest
therein, deemed necessary for the preservation of historic,
scenic or recreation qualities of the Historic Columbia
River Highway, for the connection of intact and usable
segments, or for the development and maintenance of
parks along or in close proximity to the highway. The
departments shall encourage the acquisition of lands,
or interests in lands, by donation, agreement, exchange
departments shall assist and cooperate with other agencies
and political subdivisions of the state, state agencies,
the Federal Government, special purpose districts, railroads,
public and private organizations and individuals to
the extent necessary to carry out the provisions of
ORS 366.550 to 366.553. The departments may enter into
such contracts as are necessary to carry out these provisions.
<1987 c.382 s3; 1989 c.904 s37>
Note: See note under 366.550.
is created in the Department of Transportation an advisory
committee to advise the Director of Transportation and
the Oregon Transportation Commission on policy matters
pertaining to the preservation and restoration of the
Historic Columbia River Highway. The committee shall
consist of 10 members, including the State Parks and
Recreation Director, State Historic Preservation Officer,
Director of the Economic Development Department or their
delegates, one member appointed by the Director of Transportation
and six citizen members, two residents each from Wasco,
Hood River and Multnomah Counties. The Governor shall
appoint one member from each of the three counties and
each county commission shall appoint one member respectively.
Citizen members shall have knowledge or specific interest
in historic or scenic preservation, engineering design,
recreation or related disciplines.
members shall be appointed to terms of four years, commencing
on July 1 of the year of appointment. Members of the
advisory committee shall be entitled to expenses as
provided by ORS 292.495 (2).
shall review the department's preparation of the historic
road program and its ongoing management and submit recommendations
to the Director of Transportation.
shall review proposed highway-related activities and
other public actions, except for routine highway maintenance,
which may affect the historic integrity, continuity,
scenic values, public access and public recreational
opportunities within the Columbia River Highway Historic
District and submit recommendations to the director.
The committee may appoint subcommittees composed of
qualified members or other technical specialists, as
required, to review plans, construction or other subjects
as designated by the committee. The director shall provide
notice to the committee of proposed activities, actions
or projects at the earliest possible opportunity.
committee may recommend to the director that a public
hearing with appropriate public notification be held
for proposed activities, actions or projects which significantly
affect the Historic Columbia River Highway.
The committee shall meet regularly a minimum of four
times a year at times and places fixed by the chairperson
of the committee. The department shall provide personnel
services to assist the committee within the limits
of available funds. The committee shall adopt rules
to govern its proceedings and may select officers
it considers necessary.
<1987 c.382 s4;
1989 c.904 s61; 1993 c.736 s54; 1993 c.741 s 42> Note: See
note under 366.550.