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Home / About / Field Offices / Missouri Division / Programs / FHWA/MODOT Oversight Manual / Partnering Agreements / Right of Way

FHWA/MoDOT Partnering Agreements

RIGHT OF WAY AND REALTY

September 2014

I. Roles and Responsibilities of MoDOT

MoDOT’s Role - Ensure the Right of Way (ROW) Program performs in accordance with state and federal laws and regulations while implementing MoDOT’s Strategic Plan and related Business Plan. For our program area, the following tasks are considered the most important and we will work with FHWA as true partners to ensure success:

II. Roles and Responsibilities of FHWA

FHWA’s Role - Ensure the MoDOT Right of Way (ROW) Program performs in accordance with state and federal laws and regulations while implementing FHWA’s Performance Plan and required stewardship and oversight. For our program area, the following tasks are considered the most important and we will work with MoDOTas truepartners to ensure success:

PROJECT ACTIVITIES AGENCY RESPONSIBLE
Approval Action
Reference Document
Interstate
Other NHS
Non-NHS
ROW Acquisition Authorization 23 CFR 710.307 FHWA* FHWA* FHWA*
ROW Conditional Clearance
(see Appendix A)

23 CFR 635.309 FHWA** FHWA** FHWA**
Hardship/Protective Purchase 23 CFR 710.307
23 CFR 710.503
23 CFR 710.509
23 USC 108
FHWA FHWA* FHWA*
Credits (including Early Acquisitions, Donations, or other contributions) 23 CFR 710.501
23 CFR 710.505
23 CFR 710.507
FHWA FHWA FHWA
Waiver for Comparable Replacement Dwelling Requirement 49 CFR 24.204(b) FHWA FHWA FHWA
Federal Land Transfers 23 CFR 710.601
23 USC 107(d)
23 USC 317
FHWA FHWA FHWA
Direct Federal Acquisition 23 CFR 710.603 FHWA FHWA FHWA
Relinquishments (or CRSR) 23 CFR 620 Subpart B
23 CFR 710.401 23 CFR 710.403
FHWA MoDOT MoDOT
Functional Replacement 23 CFR 710.509 FHWA FHWA FHWA
Disposal of ROW 23 CFR 710.403
23 CFR 710.409
FHWA MoDOT MoDOT
Disposal at Less Than Fair Market Value
(see Appendix B)

23 CFR 710.403 23 CFR 710.409
23 USC 156
FHWA MoDOT MoDOT
Disposal and/or Changes in Access Control 23 CFR 620 Subpart B
23 CFR 710.403
23 USC 111
FHWA MoDOT MoDOT
Airspace Agreements 23 CFR 710.403
23 CFR 710.405
23 USC 111
FHWA MoDOT MoDOT
Lease/License of ROW Real Property 23 CFR 710.407 FHWA MoDOT MoDOT

*The Division Office approves if Federal funds utilized.

**Only on Projects of Division Interest (PoDI).

PROGRAM ACTIVITIES AGENCY RESPONSIBLE
Approval Action
Reference Document
Approve
Remarks
MoDOT’s ROW Manual and Revisions 23 CFR 710.201(c)
49 CFR 1.48(d)(11)
FHWA Review and Approval by
January 1, 2001 and every 5 years thereafter;
Revisions reviewed as necessary.
ROW Statistical Report
49 CFR 24 Appendix B FHWA Report due to FHWA HQ by November 15th annually.
ROW Partnering Agreement 23 CFR 710.201(i)
FHWA & MoDOT Every year or as necessary.
Risk Assessment FHWA Risk Assessment and Performance Plan; MoDOT Tracker and Direction
N/A FHWA staff will work with MoDOT staff on the development of the FHWA Risk Assessment and Performance Plan to ensure success for FHWA and MoDOT.
MoDOT’s Outdoor Advertising Control (OAC) policy and operating procedures for providing effective control 23 CFR 750.304
23 CFR 750.705
49 CFR 1.48 (c)(11)
23 USC 131
FHWA Review as necessary.
Authorization to proceed with acquisitions on federally funded sign removal projects (nonconforming) 23 CFR 750.307
FHWA  
Requests to Exempt signs from removal in defined areas 23 CFR 750.503 FHWA  
MoDOT’s Junkyard policy and operating procedures for providing effective control 23 CFR 751.9
23 USC 136
FHWA  
Authorization to proceed with a junkyard control project 23 CFR 751.25 FHWA  

III. Ground Rules

We agree to concentrate efforts in improving our work by following these ground rules:

IV. Conflict Resolution

In case of conflict, we will resolve it at the lowest level by the FHWA Division Realty Specialist working with MoDOT ROW Director. If agreement cannot be reached after fifteen (15) working days we agree to elevate the issue in the following manner:

V. Performance Evaluation

VI. Communicating with Management

We will keep management informed of our activities and how our partnering is working by:

APPENDIX A

Programmatic Agreement for Right of Way Certification Between Missouri Department of Transportation and Missouri Division, Federal Highway Administration

In order to streamline the project development right of way process for the Missouri Department of Transportation (MoDOT) and the Missouri Division Office of the Federal Highway Administration (FHWA), and without compromising the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, the agencies approve this programmatic agreement for certain qualifying projects, including MoDOT and local projects. Although local projects are administered by local public agencies, all project funding flows through MoDOT and MoDOT does have a stewardship role for these local projects for right of way compliance.

Programmatic evaluations reduce the processing time and effort necessary to document and demonstrate the certification requirements have been met. This programmatic agreement will allow MoDOT to classify applicable MoDOT and local projects as having met the certification requirements without submitting each project to the FHWA for approval. MoDOT will continue to submit the Projects of Division Interest (PODI) certifications to the FHWA for review and approval. This programmatic agreement is in step with national trends that allow state DOT’s to assume more responsibility for their federal right of way compliance and the FHWA’s transition to a risk based stewardship and oversight management role.

Federal-Aid project construction authorization gives MoDOT the authority to advertise the physical construction for bid. One of the following right of way conditions must be certified in the project agreement. If it is determined that the completion of right of way work cannot be done in advance of the highway construction then appropriate notification shall be provided in the bid proposal. [Reference 23 CFR 635.309(b) and (c)]

MoDOT generally provides the Cert 1 or Entire Clearance for Federal-Aid projects. MoDOT does not utilize the Cert 2 option. MoDOT utilizes written procedures for approving Cert 3 or Conditional Clearance certifications (see Attachment A). Although this option is utilized on a regular basis, the Cert 1 or Entire Clearance is normally provided prior to letting or award of the project. Therefore the completion of right of way work has no adverse effect on the property owners, the contractor, or the construction project.

This agreement shall not preclude MoDOT or the FHWA from requesting approval when deemed necessary, even though the action falls within the bounds of this agreement.

Approving a certification does not eliminate the need for compliance with Uniform Act laws and related right of way regulations. MoDOT and the FHWA will assure that these other requirements are met for projects.

The programmatic agreement is subject to a biennial review by MoDOT and the FHWA for an assessment of compliance, its value, and of changes that make it more effective. It is acceptable that the parties choose to reexamine the programmatic agreement at any time.

Attachment A Procedures for Approving Conditional Clearance Certifications March 2011

Each Conditional Clearance Certification is unique; therefore, MoDOT does not have a specific checklist for approving Conditional Clearance Certifications. Instead, MoDOT staff takes the specific characteristics of the project and status of individual parcels into consideration before moving forward to advertise a project prior to issuing an Entire Clearance Certification. MoDOT staff places Conditional Clearance Certification into two categories, which are outlined below. Keep in mind that the following information identifies examples of situations encountered, but does not include each and every situation.

Category 1 Examples Waiting for check to be cut

Waiting for possession time to run out

Order of Condemnation received

Category 2 Examples No Order of Condemnation

Waiting for executed documents

MoDOT’s staff members work very closely together for Conditional Clearance Certifications, especially those falling under Category 2. Coordination is done to ensure that the bid documents include a Job Special Provision that addresses the status of properties impacted. MoDOT staff also verifies that the delayed possession that exists on specific parcels will not impede the overall progress a contractor can make within the remaining available project limits, and that the delayed possession will not impact the pricing or schedule. Again, each Conditional Clearance Certification is unique, so a specific checklist would not be effective. Instead, Conditional Clearance Certifications are evaluated on a case-by-case basis. The above information, however, will hopefully provide some insight into the thought process used by MoDOT staff when these situations arise.

APPENDIX B

Programmatic Agreement for Disposal/Lease/License at Less than Fair Market Value Between Missouri Department of Transportation and Missouri Division, Federal Highway Administration

In order to streamline the project development right of way process for the Missouri Department of Transportation (MoDOT) and the Missouri Division Office of the Federal Highway Administration (FHWA), and without compromising the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, the agencies approve this programmatic agreement for certain qualifying actions, including MoDOT and local actions. Although local projects are administered by local public agencies, all project funding flows through MoDOT and MoDOT does have a stewardship role for these local projects for right of way compliance.

Programmatic evaluations reduce the processing time and effort necessary to document and demonstrate the real property management requirements have been met. This programmatic agreement will allow MoDOT to classify applicable MoDOT and local actions as having met the real property management requirements without submitting each action to the FHWA for approval. MoDOT will continue to submit requests along the Interstate to the FHWA for review and approval. This programmatic agreement is in step with national trends that allow state DOT’s to assume more responsibility for their federal right of way compliance and the FHWA’s transition to a risk based stewardship and oversight management role.

Per 23 CFR 710.403(d) and (f) the State DOT shall request the FHWA review and approval for all disposals/leases/licenses at less than fair market value if the original real property interests were obtained utilizing Title 23 funds. Although MoDOT does not always receive the fair market value in cash or appraised amount in cash for the disposal/lease/license, they consider the balance of the off-set against several factors including the cost of continued maintenance, liability, buyer supplied survey, part of a negotiated settlement on a STIP project or litigation, etc. (see Attachment A and Attachment B).

This agreement shall not preclude MoDOT or the FHWA from requesting approval when deemed necessary, even though the action falls within the bounds of this agreement.

Approving a certification does not eliminate the need for compliance with Uniform Act laws and related right of way regulations. MoDOT and the FHWA will assure that these other requirements are met for projects.

The programmatic agreement is subject to a biennial review by MoDOT and the FHWA for an assessment of compliance, its value, and of changes that make it more effective. It is acceptable that the parties choose to reexamine the programmatic agreement at any time.

Attachment A

Missouri Revised Statutes Chapter 227 State Highway System Section 227.290

August 28, 2013

Highways and transportation commission may convey or exchange land or leasehold.
227.290. 1. Whenever in the opinion of the state highways and transportation commission the advantageous use of any interest in land or any leasehold which has heretofore or may hereafter be acquired by the commission has ceased, or for any other lawful reason the commission wishes to dispose of the property, the commission shall have authority to convey or exchange such interest in land or leasehold for its approximate fair market value pursuant to any administrative procedure or process as determined by the commission, by deed signed by its chair or vice chair and attested by its secretary. Before any sale shall be consummated under this section, the original owner of the property which is now offered for sale by the commission and if such owner shall at the time of sale be in possession of the adjoining land, shall be notified by written notice by the department of transportation of such contemplated sale. All moneys received from the disposal of any such interest in land or leasehold shall be deposited by the commission in the state treasury to the credit of the state road fund. Any land or leasehold herein described that has been donated without charge by the owner to the purpose of state highway construction or maintenance and such owner is still in possession of contiguous property, the same shall revert to such original owner without cost to the owner if and when relinquished by the commission

2. The commission may also, in its discretion, convey at no cost, or exchange its interest in any land or leasehold that is no longer necessary to be used for the construction, maintenance, or operation of the state highway system, or for any other lawful reason, to any federal, state, or local governmental entity.
(RSMo 1939 § 8760, A.L. 2006 S.B. 840)
Prior revision: 1929 § 8112

Attachment B
MoDOT EPG
236.5.17 Valuing Excess Property

RSMo 227.290 stipulates that the Commission is to obtain approximate fair market value for excess realty, except as addressed in this article (236.5 Property Management). For the purpose of this chapter in meeting requirements established in state statute and in the CFR, "approximate fair market value" shall include that prices (in money or exchange) concluded as follows: a for excess parcels that are non-stand-alone or owned as less-than fee; through direct negotiation with the entire market for the property, such as all adjoining owners, or the fee owner; or, b) for marketable stand-alone excess parcels; through an open public sale process based upon the appraised value and subsequent good faith negotiations, a public auction, or other competitive bid process. The documentation submitted to the Right of Way Section shall demonstrate how the transaction represents the approximate fair market value of the parcel. For more on valuing excess property, see EPG 236.6.3.7 Realty Asset Valuation.

The appraisal and the title opinion together help define the sale process most appropriate to the parcel. The appraisal is used to determine the potential market (stand alone or not) and the title opinion (fee or less than fee) may further define the field of potential purchasers.

Page last modified on January 29, 2014.
Federal Highway Administration | 1200 New Jersey Avenue, SE | Washington, DC 20590 | 202-366-4000