West Side Highway, 1951


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 Transportation.



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 values.

      The Merritt 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.

       In 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 Improvements.

Emil H. Frankel

State of Hawaii

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.




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, and aesthetics.

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 other options.

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 guidelines that:


Create 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;

Lead 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;

Recognize the variety of conditions that different projects may present;

Require 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


Incorporate qualitative and safety studies where advisable.


The 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 resources.
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, or improvements.

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, and maintenance.
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:


Safety, durability, and economy of maintenance;

The constructed and natural environment of the area;

Community development plans and relevant county ordinances;

Sites listed on the State or National Register of Historic Places;


The environmental, scenic, aesthetic, historic, community, and preservation impacts of the activity;


Access for other modes of transportation, including but not limited to bicycle and pedestrian transportation;


Access to and integration of sites deemed culturally and historically significant to the communities affected;


Acceptable engineering practices and standards; and


Safety studies and other pertinent research.

(b) 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:



The State;

The department of transportation;

The counties;

Any public utility regulated under chapter 269 that places its facilities within the highway right of way; or


Any officer, employee, or agent of an entity listed in paragraphs (1) to (4).

(c) 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:



Hana highway, east Maui;

Hanalei road, north Kauai;

Hamakua-Honokaa heritage corridor, island of Hawaii;

Upper Kona road, island of Hawaii; and


Ka Iwi 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:



Those with expertise in:

  (A) Environmental protection;
(B) Historic preservation;
(C) Scenic conservation; and
(D) Bicycle and pedestrian transportation;

Community planning organizations;

The State historic preservation office of the department of land and natural resources; and

The Federal Highway Administration.

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:

Chapter 366
State Highways
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:


To reuse 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.

To rehabilitate, restore, maintain and preserve all original roadway and highway-related structures on the intact and usable highway segments.

To connect 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.

To provide a coordinated visitor information program to identify and interpret the significance of the highway.

To preserve 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.


The 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.

The departments 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.

The departments 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).

The departments 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 or purchase.

The 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.

366.553 Advisory committee; members; duties; meetings.

There 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.

The citizen 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).

The committee shall review the department's preparation of the historic road program and its ongoing management and submit recommendations to the Director of Transportation.

The committee 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.

The 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.