November 20, 2014 Introduction to the Uniform Act and the Right of Way Process.

November 20, 2014

Introduction to the Uniform Act and the Right of Way Process

Real Property

• Interests, benefits and rights inherent in ownership of physical real estate

• Often considered the“bundle of rights”

• Includes fee simple,permanent easements and temporary easements

Eminent Domain

The power of any sovereign government to take private property

without the consent of the owner.

U. S. Constitutional Limitations on Power of

Eminent Domain5th Amendment

“…nor shall private property be taken for public use without just

compensation.”

14th Amendment “…nor shall any State deprive any

person of life, liberty, or property, without due process of law…”

Uniform Act

Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (Public Law 91-

646)

Uniform Act Twofold Purpose

• Provide for uniform and equitable treatment of persons displaced from their homes, businesses or farms by Federal and federally-assisted programs

• Establish uniform and equitable land acquisition policies for Federal and federally-assisted programs

Major Components of the Uniform Act

When Must an Agency Follow The Uniform Act ?

When any phase of a project is federally-funded, and:

Real property is acquired, and/or

Property owners and/or tenants are displaced as a direct result of land acquisition, demolition or property redevelopment

ROW Impacts

Temporary Construction Easement

ROW Impacts (con.)

2-62-6

Temporary Construction Easement

2-11

ROW Impacts (con.)

2-7

Temporary Construction Easement

Project Development Process

Planning• Corridor Selection• NEPA Process

Project Design

Real Estate• Preliminary ROW Activities• Appraisal• Acquisition/Relocation• Property Management

Construction ROW Certification

Start End

• ROW Cost Estimates• ROW Plans

•Complete ROW certification exceptions

•Monitor negotiated construction features

Key Elements of the Valuation Process

AppraisalFair Market Value

Review Appraisal

Just Compensation

P. L. 91-646, as amendedTitle III, Section 301

Definition of an Appraisal

“a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion of defined value of an adequately described property as of a specific date, supported by the presentation and analysis of relevant market information.”

49 CFR 24.2(a)(3)

How Does an Appraiser Arrive at a Value

Three generally accepted approaches to value

• Sales comparison approach• Income approach• Cost approach

• Appraisers must be State certified or licensed

• Define the appraisal problem, and select appraiser based on individual project or complexity of parcels identified for acquisition

• Consider appraiser’s past eminent domain experience and quality of services provided to other clients

49 CFR 24.103(d)(2)

Selecting and Contracting with Appraisers

Preliminary Scope of Work

“The Agency acquiring real property has a legitimate role in contributing to the appraisal process, especially in developing the scope of work and defining the appraisal problem.”

49 CFR 24.103(a)(1)

Purpose of an Appraisal Review

“…examine the presentation and analysis of market information in all appraisals to assure that they meet the definition of appraisal found in 49 CFR 24.2(a)(3), appraisal requirements found in 49 CFR 24.103…”

49 CFR 24.104(a)

• Critically examines appraisal work prepared by others

• Brings consistency to the project

Just Compensation Equals or Exceeds Fair Market Value

1

2

3

Appraisal Ya

rdstick

Other

Consideratio

ns

Fair Market V

alue (FMV)

Just Compensatio

n

Appraised value and just compensation are usually equal.

Actual JC

Land Acquisition Process Flowchart

No

Give owner opportunity to consider offer

Follow-up with phone call(s) or personal contacts

Present written offer to Property Owner(in person or by mail)

Owner signs conveyance instrument

Yes

Condemnation

Negotiations complete – consider property management activities

No

Yes

Complete Relocation Process

Yes

Yes

No

No

Property acquisition displaces residents?

If possible, make combined relocation and acquisition offers together

Property owner accepts offer?

Continuednegotiations

Agency prepares ROW Certification

Will acquisition displace occupants?

Successful?

START

END

• Expeditious acquisition

• Notice to owner

• Just compensation offer established

• Prompt written offer to purchase with summary statement

Basic Acquisition Policies

49 CFR 24.10249 CFR, Appendix A, 24.102

• Basic negotiation procedures

• No coercive action

• 90-Day Notice

• Payment before possession

• Conflict of interest

• Documentation of negotiations

Basic Acquisition Policies (con.)

49 CFR 24.10249 CFR, Appendix A, 24.102

Alternative Settlement Techniques

Administrative Settlement

• Purchase price for property exceeds amount offered as just compensation

• Agency official approves settlement as reasonable, prudent and in the public interest

• State DOT approval may be required

• Federal-aid participation requires written justification supporting the settlement

49 CFR 24.102(i)

Alternative Settlement Techniques (con.)

• A third party mediator may be able to resolve the conflict and achieve settlement

• May be useful in particularly complex situations, or where negotiations have become blocked

Alternate Dispute Resolution - Mediation

Parcel Closings

• Obtain property encumbrance releases

• Prepare settlement statement and deed

• Pay just compensation to the property owner

• Pay property owner’s expenses incidental to transfer of title to Agency

49 CFR 24.106

Eminent Domain and the Condemnation Process

Eminent Domain• The legal doctrine

that government has the power to acquire private property for public purposes

• Governments invoke eminent domain proceedings as a last resort

Condemnation• Legal process to

invoke eminent domain

• Conducted in a judicial venue

State laws vary regarding the authority and implementation of eminent domain

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Case Study 4.2

Liberty County Project Negotiations

Relocation Planning

• Begins early in the development of a project - often part of NEPA process

• Recognizes problems associated with displacement

• Develops solutions to minimize the adverse impacts of displacement

49 CFR 24.205(a)

Advisory Services• Explanation of relocation services and

payments

• Explanation of relocation eligibility requirements

• Determination of needs and preferences of persons to be displaced through personal interview

• Effort to meet identified needs of displaced persons

• Provision of appropriate services49 CFR 24.205(c)

Relocation Assistance Flowchart

Plan ProjectProject

Approved

Inform Persons to

be Displaced

Interview Persons to

be Displaced

Work with Persons to

be Displaced

Person Chooses

Replacement Property and

Moves

Process Claims and

Make Payments

Follow-up

Relocation Notices

• Foreign language may be appropriate

• Delivered in person or certified mail, return receipt requested

• Contain name and telephone number of contact person

49 CFR 24.5

• In writing, easily understood language

General Information Notice

• Given anytime – typically early

• Conveys information about the relocation program, including right to appeal

49 CFR 24.203(a)

• Format: brochure or letter that is general in nature

Notice of Relocation Eligibility

• Delivered at initiation of negotiations (ION) or shortly thereafter

• Establishes qualification for relocation assistance and may set amount

49 CFR 24.203(b)

• Format: letter that is hand-delivered or sent by certified mail

Ninety-Day Notice• Format: letter that is hand-

delivered or sent by certified mail

• Delivered at or subsequent to ION or after property acquisition

• Assures displaced person minimum of 90 days to move

• For residential occupant, a comparable must be offered49 CFR

24.203(c)

Decent, Safe, and Sanitary

• Replacement dwelling must meet certain standards

• Standards refer to physical condition of replacement property

• Generally, a dwelling which meets local housing and occupancy codes will be decent, safe and sanitary (DSS)

Comparable Replacement Housing

• Displacing Agency must offer at least one comparable replacement dwelling

49 CFR 24.204(a)

• Comparable replacement dwelling forms the basis of the computation of the replacement housing payment (RHP)

Relocation Payments and Services

Residential: Nonresidential:

Note: Persons not lawfully present in the US are not eligible for relocation payments or advisory services.

49 CFR 24.208

Fixed or Actual Moving Costs

Replacement Housing Payments

Related Nonresidential

Expenses

Business Reestablishment

Expenses

Fixed or Actual Moving Costs

Advisory ServicesAdvisory Services

Relocation Case Study

Pcl 105 Pcl 103

Vacant pasture

vacantcommercial

commercialbuildin

g

ParkingLot

SFR

•

ROW line

••

••••

•••

•••

P/L

industrialplant

Pcl 102

conveniencestore

SFR

Pcl 109

SFR

ROW lineP/L

P/L

apartmentbuilding

Pcl 104

Pcl 101 Pcl 106 Pcl 107

Pcl 108

Pcl 110

Property Management Activities Flowchart

Acquire PropertyAcquire Property Construct Facility

Construct Facility

Sell excess/surplus property

Sell excess/surplus property

Manage PropertyLong-Term

(Post-Construction)

Manage PropertyLong-Term

(Post-Construction)

IdentifyShort-term Uses

IdentifyShort-term Uses

Rent/LeaseRent/Lease Sell ImprovementsSell Improvements

Manage Property

(Acquisition)

Manage Property

(Acquisition)

Tasks and Timing

Pre-Acquisition

• Assemble property descriptions

• Prepare inventory of properties to be acquired

• Identify NEPA requirements

• Identify potential owner retention items

Tasks and Timing (con.)

Acquisition and Management• Prepare/update inventory of acquired

properties• Identify short-term uses• Dispose of improvements• Implement NEPA compliance• Identify potential excess property• Identify maintenance/security issues

The Agency certifies:

• All properties needed for construction are obtained

• All properties are free and clear of anystructures, businesses or people

• Utility relocation isaddressed

ROW Certification Statement

23 CFR 635.309

23 CFR 635.309

ROW Certification Statement (con.)

The Agency certifies:

• All displacees are appropriately relocated

• Compliance with all State laws, the Uniform Act and implementing regulations

Other Things ORC Does

• Provide project planning • Provide oversight• Solve specific problems• Develop training• Assist with grants