August 10, 2020
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The Federal Highway Administration plans to consider short-term exceptions to the fair market value (FMV) requirement for the temporary use of sidewalks and public parking areas in the highway right-of-way as additional restaurant seating or retail space; an initiative aimed at supporting state efforts to safely reopen their economies while adhering to COVID-19 social distancing guidelines.

[Above photo by the Forbici Modern Italian Restaurant of Tampa, Florida.]

“America’s restaurants and retailers are the engine of our economy,” Nicole Nason, FHWA’s administrator, in a statement.

FHWA’s Nicole Nason. Photo by MoDOT.

“Without compromising safety, we want to help these businesses find a way to navigate the challenges of the COVID-19 public health emergency and continue to operate,” Nason noted.

She added that, in response to state requests, FHWA will consider short-term FMV exceptions for the temporary use of sidewalks and public parking that offer more area for restaurants and stores to serve their customers at a safe distance.

It is unclear right now how many states are applying for such exemptions. However, according to a news story, the Minnesota Department of Transportation in concert with the Minnesota Department of Employment and Economic Development is crafting a plan whereby restaurants and other establishments could set up outdoor areas on sidewalks or parking lanes that are currently not allowed by state and federal rules.

Yet the FHWA emphasized in its release that states must implement “proper safety measures to protect both clients and employees” in the ROW area, which includes “ensuring safety for drivers and pedestrians” as well.

The agency added that it decided to consider short-term FMV exceptions on a case-by-case basis based in part on Trump’s May 19 executive order that allows federal agencies to rescind, modify, waive, or provide exemptions from regulations and other requirements that may inhibit economic recovery, consistent with applicable law and with protection of the public health and safety, with national and homeland security, and with budgetary priorities and operational feasibility.

The FHWA noted that FMV exceptions will be granted only for the limited purpose of safely reopening the economy and for an initial period of 120 days from when the exception is issued.

editor@aashto.org

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