New Mexico Permit to Construct Access Opening on Public ROW (3-NM-g)
The NMDOT regulates access to state highways pursuant to N.M. Code R. §§ 184.108.40.206-220.127.116.11.
Permit to Construct Access Opening on Public ROW Process
3-NM-g.1 – Application for Permit to Construct Access Opening on Public ROW
Developers must submit a NMDOT Application for Permit to Construct an Access or Median Opening on Public Right of Way to the appropriate District Office along with proof of ownership of the property to which access is requested. In addition, developers must submit a NMDOT Traffic Control Plan that conforms with the Manual of Uniform Traffic Control Devices for Streets and Highways as part of the application. Furthermore, applications must contain a platted survey of the property as well as any applicable government fees. N.M. Code R. § 18.104.22.168(D).
3-NM-g.2 to 3-NM-g.4 – Review Application Materials for Completeness
The District Engineer within the NMDOT will only substantively review complete applications. If refused for lack of completeness, the NMDOT will notify the applicant within 10 working days of receipt of the application and indicate the reason for refusal. N.M. Code R. § 22.214.171.124(D)2).
Once complete, the review period begins. The NMDOT will normally process applications within forty-five days; however, the review period may be extended by the District Engineer. N.M. Code R. § 126.96.36.199(G)(2).
3-NM-g.5 – Permit to Construct Access Opening on Public ROW
If approved, the NMDOT prepares and transmits the permit to the developer along with any additional terms and conditions established by the District Engineer. The granting of an access permit conveys no rights, title or interest in state highway rights-of-way to the permit holder or property served. N.M. Code R. § 188.8.131.52(G)(3).
3-NM-g.6 to 3-NM-g.8 – Notify NMDOT of Pending Construction
The developer must notify the District Engineer (or designee) of pending access construction at least three working days prior to commencement of any construction activities in state highway ROWs. Construction under an access permit must begin no later than six months from the date of issuance, unless otherwise noted and approved by the NMDOT in writing. However, the developer may request a six-month extension for commencement so long as the request is in writing and submitted before the permit expires. Once construction begins, the developer must complete access construction within 45 days of initiation. If the developer fails to complete construction within 45 days of commencement, the NMDOT may suspend or revoke the permit and/or close the access. N.M. Code R. § 184.108.40.206(K).
3-NM-g.9 to 3-NM-g.11 – Appeal Denial of Application
If the District Engineer substantively denies a NMDOT Application for Permit to Construct an Access or Median Opening on Public Right of Way, the developer has 60 days to file a written appeal with the District Engineer. In addition to appealing an application denial, developers may use this process to appeal certain conditions attached to an otherwise approved application. In response to the appeal, the District Engineer will submit a written request for review to the NMDOT Traffic Technical Support Engineer along with the permit application, written appeal, and all supporting documentation. The Traffic Technical Engineer will offer an opinion to the District Engineer as to the merits of the appeal, with intent that the two engineers reach an agreement. If the two engineers cannot reach agreement, a formal meeting with the Deputy Secretary for Planning and Design is scheduled. The developer may attend the formal meeting and may even proffer a third-party engineer to offer opinions in favor of approval of the developer’s permit application. The decision of the Deputy Secretary for Planning and Development is final. N.M. Code R. § 220.127.116.11(I).
3-NM-g.12 – Is the Decision Overturned?
If the decision is not overturned, the permit application remains denied and the developer cannot continue with the project unless a subsequent NMDOT Application for Permit to Construct an Access or Median Opening on Public Right of Way is approved. If, however, the decision is overturned, then the developer may continue with the project as outlined in elements 6-8.
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