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Right-of-Way Scans

Domestic Scan Program: Best Practices in Right-of-Way Acquisition and Utility Relocation

1.0 Overview of Pilot Scan Program and Tour

1.1 Program and Scan Tour Objectives

In 2006, The National Cooperative Highway Research Program (NCHRP), through NCHRP Project 20-68, initiated a Domestic Scan Pilot Program modeled after the International Technology Scanning Program sponsored by the American Association of State Highway and Transportation Officials (AASHTO) and the Federal Highway Administration (FHWA). The purpose of the domestic scan program is to identify, review, document, and disseminate innovative practices by transportation agencies throughout the United States. Two scans were initially funded – one on best practices in right-of-way (ROW) acquisition and utility relocation to expedite project development, and one on best practices in transportation asset management. The right-of-way acquisition and utility relocation scan also was supported by the FHWA Office of Real Estate Services. Based on the experience and success of these pilot scans, NCHRP expects to continue the domestic scan program in future years.

This report documents the findings of the first pilot scan, Best Practices in Right-of-Way Acquisition and Utility Relocation, conducted in July 2006. The focus of the scan was on identifying, documenting, and disseminating innovative state practices in right-of-way acquisition and utility relocation to support the delivery of projects in a timely and cost-effective manner.

In many areas transportation agencies as well as the public have grown tired of watching needed transportation improvements delayed for years as a result of lack of funding or a slow moving construction process. As a result, the previous five or six years have been a period of unparalleled examination of the transportation project development process. This is particularly true of the right-of-way acquisition/relocation process performed by state, local agencies, and right-of-way consultants. Completion of the ROW function is the last stage before construction commences and there is often a perception that the ROW stage is delaying advertising and construction of the project. The utility relocation and adjustment process also has been identified as a critical element in project development. A variety of factors such as rising real estate values, rapid property development in planned project corridors, complications with the relocation of utilities and private property rights concerns have led to additional delays in implementing transportation projects in many corridors.

Federal and state policy establishes important protections for the rights of property owners, tenants, and public and private sector utilities. Transportation agencies are increasingly realizing that they can expedite ROW acquisition and utility relocation while ensuring that these protections remain in place. Improvements to the ROW and utility processes are therefore increasingly seen as a fundamental component of an overall approach to expedite project development and ensure that transportation projects needed to improve mobility and safety are built in a timely manner.

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1.2 Scan Approach

As an initial step in the scan project, a "desk scan" was conducted to review and document literature relating to best practices and innovative efforts. The findings of the desk scan are summarized in Sections 2.0 and 3.0 of this report. The desk scan identified a number of states to be considered for a scan visit. The three hosts that were ultimately selected included:

Particularly noteworthy practices also were identified in California and Washington State, which served as alternate locations for the scan tour.

The scan tour was conducted between Sunday, July 9 and Saturday, July 15, 2006. Frank and open discussions were held in each state regarding best and innovative practices, lessons learned, and how processes would be modified for future projects. In addition to the scan tour participants, between 20 and 30 state personnel in each state participated in the presentations and discussions, along with representatives from FHWA Division offices. Field visits in each of the three states included a tour of one or more projects to examine specific ROW and utilities issues. These projects included the widening of State Road 50 in Orlando, Florida; construction of initial segments of the Central Texas Turnpike in Austin; and reconstruction and widening of I-394, I-494, Highway 62, and I-35 in Minneapolis.

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1.3 Scan Participants

Fifteen transportation professionals participated in the scan, including nine state DOT staff from right-of-way and utilities offices, four FHWA staff, and two consultants who facilitated the scan. Tour participants were selected by the scan co-chairs, in consultation with NCHRP staff and the AASHTO Subcommittee on Right-of-Way and Utilities. High-level officials were selected with the interest, ability, and commitment to implement findings from the scan within their own agencies as well as to share them with colleagues at a state, regional, and national level.
The scan management and leadership team included:

Other state participants included:

Other Federal participants included:

Each of the three host states designated an individual with primary responsibility to coordinate and plan discussions of best practices and innovative solutions which have been successful. Local host presentations and field visits were coordinated by George Lovett (Florida DOT District 5), Donald Toner (Right-of-Way Administrator, Texas DOT Austin District), and Marilyn Remer (Utilities Engineer, Minnesota DOT).

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1.4 Federal Regulatory Framework

Right-of-Way Acquisition

The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Uniform Act) provides important protections and assistance for people affected by federally funded projects.1 This law was enacted by Congress to ensure that people whose real property is acquired, or who move as a result of projects receiving Federal funds, will be treated fairly and equitably, and will receive assistance in moving from the property they occupy. The Surface Transportation and Uniform Relocation Assistance Act of 1987 designated the U.S. Department of Transportation as the Federal Lead Agency for the Uniform Act. This responsibility has been delegated to the FHWA and is carried out by the Office of Real Estate Services.

Prior to January 2000, a somewhat rigid set of regulatory requirements dictated a number of specific procedures that were required to be followed on projects receiving any Federal-aid funding. Right-of-way regulations had been developed over the years to discourage types of waste, fraud, and abuse which had been encountered. Ultimately it was recognized that the costs in terms of time and money of overly stringent requirements were greater than the average risk of loss. The need to relax administrative controls was impeded by a set of regulatory requirements which were very specific in a number of program areas. A significant revision to 23 CFR 710 was published in December 21, 1999 and became effective in January 20, 2000.2 This revision provides the rationale for changing the regulations, including advantages, disadvantages, and concerns. The revision of the regulations helped to set the stage to develop alternative methods of meeting Federal requirements.

A further clarification of Federal regulations was issued on March 20, 2002 with the publication in the Federal Register to confirm that states were allowed to pay greater relocation benefits than specified in 49 CFR Part 24. This clarification of 23 CFR 710.203 took effect on April 19, 2002.3 This regulatory revision enhanced the ability of state and local public agencies to utilize innovative incentive payments to aid in the prompt and efficient relocation of individuals, families and businesses.

This trend has been continued with the publication of revised relocation regulations for the relocation function and appraisal requirements. The regulations implementing the Uniform Act were revised on January 4, 2005 with an effective date of February 3, 2005.4

At the present time, there is a major thrust to shorten all aspects of transportation development and completion process. Fortunately, in recent years a critical examination has begun to determine whether various steps can be completed more quickly or whether they need to be completed at all. A simple example is the need for a title search before property is acquired. At one time the standard in some states was to perform a 40-year title search, which took time and cost money. Many states now acknowledge that for very low-value properties there is little risk associated with simply paying the owner of record. FHWA agreed to share the risks by confirming that if a payment were made and a second claim resulted in a second payment, Federal funds could be used in both payments since the overall result is less costly and a good business practice. Recent ROW pilot projects also have explored modification of appraisal and appraisal review practices for low-value, uncomplicated properties. The time savings and cost reductions are well documented in some of the previously completed and ongoing pilot projects.

Complete information about Federal requirements for real estate acquisition for transportation projects is available through the FHWA Office of Real Estate Services web site, http://www.fhwa.dot.gov/real_estate/

Utilities

States decide if they want utilities on highway right-of-way, including freeways, and if so to what extent and under what conditions. Whatever they decide must be documented in an FHWA-approved utility accommodation policy. A state may permit certain utilities and exclude others. Fees charged for utility use are at a state's discretion and may be used as the state sees fit. If a state so chooses, it can prohibit any longitudinal utility installations.

State highway authorities have developed policies and practices which govern when and how utilities may use public highway right-of-way, and under what conditions public funds may be used to relocate utility facilities to accommodate highway construction. Utility relocation work is eligible for Federal-aid participation as a construction cost item to the extent the state was obligated to pay for such work. Many states allow reimbursement of utilities only under special circumstances, such as on Interstate highways or for municipal utilities.

Present FHWA regulations, policies, and practices dealing with utility relocation and accommodation matters have evolved from basic principles established decades ago, with many of the policies remaining unchanged. Practices are evolving, however, on emerging issues such as the leasing of public rights-of-way for fiber optics services by private telecommunications providers. Complete information about Federal regulations, policies, and guidance is available on the FHWA Utilities Program web site, http://www.fhwa.dot.gov/programadmin/utility.html

1 The Uniform Act is contained in Title 42 U.S.C. 4601-4655. The regulations implementing the law are contained in 49 CFR Part 24.

2 The evolution of these regulations and the publication of the final rule can be viewed at http://dms.dot.gov/. (Select "simple search" and docket 4315.)

3 https://www.federalregister.gov/articles/2002/03/20/02-6760/right-of-way-and-real-estate-program-administration.

4 49 CFR Part 24. See: http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=4b130c71709cf33dd27a942ac4e391be&rgn=div5&view=text&node=49:1.0.1.1.17&idno=49.

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Updated: 08/28/2013
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