September 14 & 15, 2005
The Federal Highway Administration's (FHWA's) Office of Real Estate Services (HEPR) held a domestic Scan on the topic of Right-of-Way Oversight of Local Public Agencies (LPAs) on September 14 and 15, 2005, in Dearborn, Michigan. The purpose of the Scan was to foster peer-to-peer exchange and to share experiences and best practices among state DOT officials in the area of Right-of-Way oversight. Another purpose was for the FHWA to learn how it can assist state Right-of-Way staff in their efforts to ensure that the federal Right-of-Way program is administered in an efficient and effective manner and in accordance with relevant regulations and guidelines. Scan participants included 29 officials from 12 state DOTs and the FHWA. Scan activities included:
A panel discussion on how to identify and utilize available materials and resources used by states to train their counterparts in LPAs in "what to do and how to do it right";
A breakout session on how to determine whether the states' LPA partners qualify as experienced or certified and how to ensure that those partners comply with relevant laws and procedures;
Site visits to the Detroit Wayne County Port Authority Boat Terminal and the Ambassador Bridge/Gateway Project;
Presentations on LPA oversight activities and best practices within individual states;
A presentation by a Detroit eminent domain attorney on problems that LPAs face related to slow funding and inverse condemnation;
A panel discussion on how to coordinate with smaller and/or more rural LPAs to help them comply with federal and state laws and regulations;
The Scan began with self-introductions by Scan participants. Each state DOT participant described his or her involvement with LPA oversight. Following introductions, Charles (Charlie) O'Neill, Realty Officer for the FHWA Michigan Division, welcomed Scan participants on behalf of FHWA Michigan Administrator James Steele. He predicted that discussions during the Scan were going to be very productive and entertaining and encouraged participants to be open and to share their ideas with the goal of bringing ideas home to make their state programs better.
Matt Delong, Administrator of the Michigan Department of Transportation's (MDOT's) Real Estate Division, also welcomed the participants. Matt announced that MDOT, which was founded in 1905, is celebrating its centennial this year with a variety of events throughout the year. He noted that one of the issues facing MDOT in its hundredth year is lack of interest in transportation as a profession. He also observed that after 100 years, one issue that remains at MDOT is that there is never sufficient time to perform Right-of-Way acquisition. He discussed some of the successes and challenges that MDOT faces in terms of Right-of-Way oversight, noting that the biggest challenge is when local government agencies develop ideas for a project in a vacuum without considering relevant rules and regulations. He expects this issue to be less of a problem as MDOT institutes more oversight and training for LPAs. Matt concluded by noting that the AASHTO Subcommittee on Right-of-Way and Utilities will be held in Michigan in 2008.
Susan Lauffer, Director of FHWA's Office of Real Estate Services, congratulated MDOT on its hundredth anniversary. She welcomed Scan participants, whom she noted are true experts in the area of Right-of-Way, and briefly discussed the background and purpose of the Scan. She stated that the purpose of HEPR's domestic Scan program is for states to share ideas with their peers, to learn from each other what works and what does not, and to discuss common issues and challenges. She noted that the domestic Scan program has been a great success and that HEPR is getting a tremendous return on the research money spent to organize the Scans. She expressed her appreciation to Scan participants for their dedication to the topic of Right-of-Way oversight and encouraged them to be frank and forthcoming in their discussions throughout the Scan.
Finally, Marshall Wainright, Realty Specialist with HEPR, provided participants with an overview of the Scan agenda and provided background materials to Scan Participants to assist them over the course of the Scan, including definitions of stewardship and oversight, authority and guidance on program stewardship, and a copy of the FHWA's policy on stewardship and oversight.
Panel Discussion on LPA Oversight: What You Do and How You Do It - Identifying and Utilizing Available Materials and Resources
The first Scan activity was a panel discussion on how to identify the materials, resources and techniques used by states to train their counterparts in LPAs in "what to do and how to do it right." Four Scan participants from different states sat on the panel. Panelists were asked to briefly share and discuss the materials, resources, and techniques they use to train their counterparts in LPAs. The FHWA has produced various Local Public Agency Workshop materials. The panelists were encouraged to discuss what additional products FHWA could provide that would assist in the training aspects of their responsibility for stewardship and oversight of LPAs. The audience asked questions throughout the presentations. Following the presentations, the floor was opened up for discussion by the full group on the topic of how to train and oversee LPAs with regard to Right-of-Way work.
The first panelist was Kelly Ramirez, Local Agency Coordinator for the Michigan DOT's Real Estate Division. Kelly oversees all LPAs in Michigan to ensure compliance with federal and state guidelines. According to Kelly, the biggest issue in Michigan is that LPAs do not normally conduct any kind of value analysis for parcels and subsequently do not make value offers to property owners. She noted that often LPAs expect parcel owners to donate land. Thus, one of MDOT's goals is to try to teach LPAs that they are required to conduct value analyses. With this goal in mind, MDOT conducts several kinds of training. MDOT invites all LPAs in the state to general training, which is held approximately every two years. She stated that this general training is not as productive as it could be because it usually attracts larger LPAs, rather than smaller LPAs that are in greater need of training. MDOT also conducts project-specific training. When MDOT hears that an LPA has a project, Kelly tries to provide training on an ongoing or as-needed basis.
Kelly usually goes out to conduct a review after she receives a program application or learns of a project in another way. She may telephone the LPA to find out whether parcels need to be acquired and whether the LPA is conducting any value analysis of the parcels. Depending on the LPA's level of expertise, she may visit the LPA to conduct training or may simply conduct a review after the project in completed. One of Kelly's goals is to work with MDOT's planning department to develop a system whereby she is notified when an LPA project is going to involve acquisition. A further goal is to require training anytime an LPA is going to engage in any kind of acquisition.
Kelly distributes numerous training materials to LPAs. At general training sessions, she distributes a binder with a sample acquisition file, an appraisal, sample forms, a list of approved consultants, and various informational booklets. During reviews, she provides other materials, including an LPA project review checklist, a sample relocation plan, a copy of the fixed residential moving schedule, and a copy of relevant pages from the Federal Register. Finally, she provides LPAs with a "how to" manual detailing the entire process for acquiring a parcel, a list of useful websites, and various informational booklets. Most of the forms and other materials that she distributes can be found on the MDOT Real Estate Division's website. Kelly works closely with other divisions within MDOT, including the Local Agency Programs Office in the Design Division. She maintains close oversight over LPAs. When a local agency project involves acquisition, she almost always visits the LPA to discuss the project. MDOT had some serious LPA problems in the past. As a result, there has been a major shift at MDOT. Whereas previously MDOT did not review every LPA project, Kelly now reviews every local agency project involving acquisition before the project can be advertised or let. According to Kelly, this new process is working well and has improved oversight.
Several audience members had questions about MDOT's Right-of-Way oversight. One Scan participant asked Kelly if she gets involved as soon as the LPA makes an application. She responded that LPA applications initially go through the Local Programs Office. She learns about the project when she receives a document called "Attachment A," which discusses the local agency's acquisition requirements. As that point, Kelly contacts the local agency. The agency then sends her the second part of the application, "Attachment B," certifying that it has possession of the parcel(s). Receipt of Attachment B triggers Kelly's review of the project. According to Kelly, one of her goals is to be more proactive and to become involved in the process earlier. Another Scan participant asked if Kelly conducts any kind of review if no Right-of-Way is required. She responded that previously she did not get involved if no Right-of-Way was required, however now MDOT is better at getting her involved in all local agency projects.
Another audience member asked Kelly how she determines whether to simply contact the LPA by telephone or to actually visit the LPA. She responded that the type of review she conducts depends on the how well she knows the LPA and how comfortable she is with its abilities. For example, if the LPA is one that she has worked with before or the project is very small, she probably will not conduct a visit. Rather, she will have the LPA fax copies of the relevant documents, permits, valuations, etc. If the project involves a large number of parcels, she will likely conduct a random review; if it involves only a few parcels, she will likely review every parcel.
Another participant asked what kind of sanctions MDOT imposes in the case of violations. Kelly responded that MDOT does not impose sanctions. Rather, she tries to assist the LPA by providing additional training. Charlie O'Neill, Realty Officer for the FHWA Michigan Division, responded that on rare occasions he has had to threaten to withdraw from federal participation. A final question involved whether MDOT provides conditional certification to local agencies in order not to jeopardize federal funding. Kelly responded that in general MDOT does not provide conditional certification, however on occasion MDOT will approve a project if a local agency is waiting for a court order in a condemnation hearing. Such approval will be revoked if the court order is not received.
The second panelist was Dianna Ayers, Relocation Program Manager for the Washington State Department of Transportation (WSDOT). Dianna began by observing that she has seen a huge change in Washington's LPA program since she began her current position two years ago. According to Dianna, WSDOT is trying to be more proactive in providing training to and oversight of LPAs. Washington has 39 counties and 350 cities, ports, and transit authorities, 228 of which are approved to perform Right-of-Way work to varying degrees. Washington's strategy is one of early involvement based on the notion that it is easier for an LPA to contact the state early than to have to fix problems later. She noted that it is especially difficult to clean up problems when there is relocation involved. Staff in WSDOT Real Estate Services work closely with the LPA program manager, who keeps them involved in all aspects of the review of local agency projects. Washington DOT also has an LPA relocation reviewer on staff.
In terms of LPA oversight, WSDOT places a great deal of emphasis on training. WSDOT staff spend a lot of time in the field providing training, both formal and on-demand. WSDOT has teamed up with its local FHWA Division Realty Officer who helps to provide training. Some of the courses that WSDOT provides to LPA staff include Right-of-Way ABCs, which is tailored towards engineering staff, and 50 Ways to Lose Your Funding, which covers the entire funding process. Other training includes courses on changes in federal regulations, courses on appraisal and appraisal review, and a real estate acquisition process course.
WSDOT has an LPA coordinator in each state region who works hand in hand with local agency staff and provides them with guidance. If a particular region cannot handle the workload in that region, staff from WSDOT headquarters normally will lend a hand. If a local agency is not approved to perform its own Right-of-Way work, then WSDOT Real Estate Services staff will visit them and work through the process with them. WSDOT has learned over the years that LPAs that communicate frequently with their LPA Coordinator tend to have fewer problems implementing projects.
In terms of process, WSDOT has found that LPAs can get extremely creative. WSDOT wants LPAs to not only understand the state's process, but to follow it as well. To that end, it conducts FHWA process reviews. Process reviews focus on positives and emphasize what WSDOT can do to help local agencies improve. Training is offered in response to process deficiencies. WSDOT Real Estate Services also has a website where it posts brochures, training information, manuals, regulations, forms, and other resources. WSDOT just revised and updated its forms and brochures. Forms provided through the website are WSDOT forms that have been made into generic forms that local agencies can use for their own purposes. Dianna noted that local agencies appear to be very happy with the level of support that WSDOT provides.
A Scan participant inquired if WSDOT has a manual for its regions instructing them on how to perform LPA oversight. Dianna responded that WSDOT has a chapter in its Local Agency Guidelines covering LPA oversight. Another audience member asked whether the language on the forms provided to LPAs is changeable. Dianna answered that WSDOT decided to provide forms that are modifiable in order to make them user friendly, however if an LPA does modify a form, then it should expect WSDOT to comment in some manner.
The third panelist was Phil Copeland, Assistant State Right-of-Way Administrator for the Georgia Department of Transportation (GDOT). Phil spent ten years in the valuation and relocation areas and recently transferred to GDOT's project delivery area, which is where local government programs fall. He began by noting that Georgia is structured similarly to Wisconsin. Georgia has one Local Government Coordinator with one additional staff person in the central office; their jobs revolve entirely around local government programs. In addition, the state has Local Government Coordinators in each district. In Atlanta, the Local Government Coordinator has additional staff.
Phil stated that Georgia has worked with its FHWA Division Real Estate Officer over the past year to bring training to each district. GDOT invites representative from each LPA in the district to a one-day training program, at which it instructs local agency staff on state guidelines and internal practices. LPA staff also have access to Georgia's guidelines and forms on the state's website. GDOT forms provided through the website have been converted to generic forms, which local agencies can modify for their own use.
Phil observed that Georgia has not done the best job in the past in terms of monitoring local programs. He recalled a particular project in which the project was pulled when it was discovered that the LPA used coercion to acquire the Right-of-Way. He also described a recent project in which an LPA certified that it had acquired all of the parcels necessary for the project, however the parcels purchased did not match what the plans specified. GDOT ultimately allowed the LPA to acquire additional parcels, however the delay caused by the LPA's mistake resulted in penalties by contractor, which the LPA was responsible for paying.
GDOT is currently working to improve oversight, according to Phil. He provided a handout setting out the sequence for a project in Georgia and providing samples of the various project agreements, contracts and procedures used by GDOT. Local Government Project Agreements are overall project agreements entered into with LPAs during the initial project planning stage and state only that Right-of-Way will be acquired according to federal guidelines. Once project plans are approved, GDOT enters into a Contract for Acquisition of Right-of-Way with the LPA. This contract spells out in detail what the expectations of the parties are, who is going to perform what services, and what oversight GDOT is going to provide. In the case of a reimbursable contract, property is acquired in GDOT's name, GDOT prepares the legal documents and performs certain acquisition services, and the state maintains the permanent records. In the case of non-reimbursable contracts, the LPA enters into the contract and retains the permanent records and provides GDOT with copies.
In terms of oversight, GDOT provides LPAs with copies of its guidelines detailing its expectations. District Local Government Coordinators are the primary contact point for LPAs; everything must be routed through the Local Government Coordinators. Appraisals undergo a review process in the central office and then are sent back to the LPAs through the district offices. Local Government Coordinators enter parcel information into a database. GDOT has a database with information on every project in which it is involved. With respect to relocation compliance, while LPAs prepare the relocation packages, GDOT must approve the packages before the LPAs can make any offers. This procedure ensures that the LPAs are in compliance.
Once a project is completed, the LPA submits the project file to the district Local Government Coordinator, who makes sure that all the documents are in the file. The LPA certifies the project and the district office reviews and submits it to the central office. GDOT recently initiated a new process whereby the district Local Government Coordinator is required to examine the legal descriptions of the parcels to make sure they match the descriptions in the project plan. After certification is complete, the LPA has to make a request for the funds to be disbursed. GDOT has begun to perform random audits of LPAs. LPAs are notified in advance when an audit is going to be conducted. Included in the handout that Phil provided was a checklist of items that GDOT looks for when it conducts an audit. GDOT requires that any consultant used by an LPA come from an approved list. By following the same procedures that GDOT follows and using the same consultants that GDOT uses, it is more likely that LPAs will be in compliance with state procedures.
An audience member asked whether GDOT performs all it own reviews. Phil responded that it does. Another participant inquired as to who performs the reviews. Phil stated that all reviews are conducted out of the central office. According to Phil, these are the same persons who are performing reviews of GDOT projects. Finally, an audience member inquired as to what GDOT gains by conducting audits. Phil responded that audits focus on whether LPAs have made proper offers. In the case of relocation, he stated, there is not a lot to audit because the central office has already seen the documentation.
The final panelist was Doug Maitland, manager of the Ohio Department of Transportation's (ODOT's) Acquisition Support Section. Doug began by stating that working with LPAs can be a risky business. After the recent Kelo case decided by the U.S. Supreme Court, there is a growing perception in the U.S. that eminent domain is an abuse by the government. As a result, the danger exists that laws will be passed that will make it more difficult for governments to acquire property. One way to improve this situation, according to Doug, is through training.
To assess training requirements in Ohio, ODOT conducted a survey of LPAs. LPAs have different degrees of knowledge about the Uniform Act and its procedures, therefore their training needs differ as well. During the survey process, Doug learned that to obtain good information, it helps to actually talk to someone and develop a personal relationship. As a result, he recommends that surveys be conducted in person or by telephone and that interviewers follow a master questionnaire. The goal of ODOT's survey was to determine the strengths and weaknesses of LPAs in order to develop training that meets their needs. ODOT learned that LPAs in Ohio would like training on the following topics, among others: the relationship between acquisition law and procedure; the appraisal process and the three approaches to value; recent changes to procedures; how to do "unusual" things; project management for LPAs; plan reading (from an acquisition perspective, not an engineering perspective); and an overview of acquisition basics, including how to fill out forms. ODOT also learned that LPAs would like frequent classes and would be more likely to participate in training if ODOT came to them.
ODOT has developed a series of courses to meet the needs of LPAs and continues to develop new courses. It currently offers a course on basic title and project management, a series of appraisal courses, and a series of courses on relocation, among others. While these courses are offered to LPA staff, Jim Viau, the Administrator of ODOT's Office of Real Estate, commented that his staff must also complete these courses as a requirement of employment. Doug stated that ODOT is planning to develop a case study class on how to acquire a 20-parcel project from start to finish. All classes are available to LPAs free of charge. In the past, ODOT charged a nominal fee for courses as a placeholder to discourage "no shows." According to Doug, training in the past was "brutal," consisting of a five-day course on all aspects of Right-of-Way acquisition. ODOT now breaks training material up into shorter, more focused courses of from one to three days. Trainers need to have a thorough understanding of the material and are encouraged to stick to the point and avoid "war stories." Training needs to relate to the everyday acquisition process.
Training is currently performed by central office real estate staff. One concern in ODOT is that there are not enough people qualified to provide training. ODOT is beginning to require regional office managers to assist with training, which will not only increase the number of veteran trainers, but will also increase confidence among regional staff in their own skills. All training in Ohio is performed in-house. Doug commented that ODOT has not found any consultants geared toward the type of training that it provides. More importantly, providing training in-house works well because no one knows ODOT's procedures as well as its own staff. In response to a request from the audience, Doug stated that Ohio would be willing to share its training materials with other states.
Besides training, ODOT performs its oversight and stewardship role in others ways. It holds an annual LPA meeting, during which it communicates to LPAs what is new in terms of Right-of-Way laws or procedures. It also engages in mentoring. Mentoring gives LPA staff hands-on experience very quickly and is used when an LPA has a new staff person who is unfamiliar with ODOT procedures. ODOT also maintains a list of approved consultants. If an LPA employs a consultant, the consultant must be on ODOT's pre-approved list. LPA staff themselves must be pre-qualified as well in order to perform Right-of-Way work.
Breakout Session: How to Ensure Right-of-Way Procedures Are Succeeding with Experienced or Certified Partners
In the past, state Right-of-Way staff played a very active operational role in local agency projects. Recently, due to budget constraints and staff shortages at the state government level, the role of state Right-of-Way staff has evolved into one of providing oversight and ensuring good stewardship of resources by local Right-of-Way personnel. Correspondingly, local government agencies have been forced to assume greater responsibility for projects within their boundaries.
Marshall Wainright, Realty Specialist with the Office of Real Estate Services, provided an overview of the breakout session topic and distributed a Breakout Session Worksheet with questions focusing on how states fulfill their oversight and stewardship roles with respect to local government partners and how they determine if their local partners are "experienced" or "certified." To assist participants in responding to the questions on the worksheet, Marshall provided them with the following definitions:
Oversight is the act of ensuring that the Federal highway program is delivered in a manner consistent with local laws, regulations and policies. Right-of-Way oversight includes what Right-of-Way professionals need to do to ensure that their Right-of-Way program is administered in an effective and efficient manner and in compliance with federal and state guidelines. Oversight activities include: (1) all required review and approval actions (required by CFR and/or state/federal oversight agreements), and (2) quality assurance reviews, process reviews, peer reviews, quality improvement team surveys, and project reviews.
Stewardship is the efficient and effective management of the public funds that have been entrusted to the Federal Highway Administration. Stewardship consists of Oversight plus Adding Value (Stewardship = Oversight + Adding Value). Adding Value includes making recommendations for Right-of-Way program improvements or corrections subsequent to Right-of-Way oversight activities. Added value activities and products may include recommendations for corrective actions to state DOT/LPAs for compliance infractions. Adding value may also include technical assistance and/or training provided for the state/LPAs, helping the state develop more effective and efficient Right-of-Way procedures, and adopting better/best business practices. In order to maintain effective Stewardship of the Right-of-Way program, including the ability to add value to the program, one must have the training, education, and experience to critically analyze and evaluate the state's Right-of-Way programs and projects.
Following Marshall's overview, Scan participants broke into four groups. Participants were given several minutes to complete the Breakout Session Worksheets individually, after which each group had the opportunity to discuss the worksheet questions as a group. Following group discussions, a representative from each of the four groups presented the results and conclusions of that group's discussions to the full Scan audience. Jim Viau of the Ohio Department of Transportation presented on behalf of Group 1. Randy Needham of the Nebraska Department of Roads served as presenter for Group 2. Rebecca Krugman of the Wisconsin Department of Transportation presented for Group 3. Finally, Dan Gentile of the Massachusetts Highway Department served as presenter for Group 4. The following is a summary of the group and individual responses to the Breakout Session Worksheet questions.
How do you fulfill your stewardship and oversight responsibilities?
Scan participants identified numerous ways in which they fulfill their stewardship and oversight responsibilities. Most states responded that they perform some sort of ongoing monitoring or review process during the project in order to assure that Right-of-Way is acquired in compliance with relevant laws and procedures. A number of states indicated that they have district or regional offices with local agency coordinators who review and audit LPAs projects. In addition to monitoring LPAs, state Right-of-Way staff provide technical advice and answer questions that LPAs might have about the Right-of-Way process. Local agency coordinators also typically serve as the main contact person for LPAs with respect to real estate acquisition. Several states mentioned that they keep in close contact with LPAs and/or try to coordinate with them early in the project planning stage in order to identify Right-of-Way requirements and recommend procedures for complying with federal guidelines. Some states hold status meetings with LPAs. Another way in which states reported that they provide oversight is conducting final reviews prior to certification and by auditing completed projects and providing feedback to LPAs concerning the results of the audits.
Numerous participants stated that they conduct training for LPA staff. Training is offered on both a formal and an informal or as-needed basis. One state responded that it utilizes the internet to provide training materials. Several states mentioned that they provide mentoring to LPA staff, while others stated that they hold conferences and/or periodic meetings. A number of states also responded that they fulfill their oversight and stewardship responsibilities by providing materials and resources to local agencies, including LPA manuals and copies of policies and procedures. One Scan participant stated that he "provide[s] local governments with the information to ensure that federal highway program is consistent with the Uniform Act, laws and regulations, policies."
States cited several other methods that they use to fulfill their stewardship and oversight responsibilities. A few states responded that they perform the work themselves if an LPA does not have staff with the experience and expertise necessary to perform its own work. A similar option is to loan state staff to the LPA. Some states provide real estate services to LPAs free of charge, while others do so on a reimbursable basis. A few states mentioned that they enter into contracts with LPAs that clearly define the roles and responsibilities of the state DOT and the local agency. At least one state indicated that it employs consultants to assist it in fulfilling its oversight responsibilities. Another stated that it provides limited contracting services on behalf of LPAs for Right-of-Way work. Finally, several states responded that they pre-qualify/approve/certify local agency staff and consultants to perform Right-of-Way work; in conjunction with this process, they require that all Right-of-Way work be performed by certified persons.
What has been the result of your oversight efforts?
Several states responded that their oversight efforts resulted in improved awareness and understanding of program requirements on the part of LPAs. Many Scan participants stated that compliance with federal and state laws and procedures regarding real estate acquisition has improved. One state responded that its oversight efforts have resulted in more efficient and compliant acquisitions and project delivery and a reduction in the duplication of efforts. Another commented that early involvement with LPAs resulted in better compliance. Several other states observed that their oversight efforts have been good and/or successful and have resulted in improvements to their LPA programs. In terms of specific results, participants noted that their oversight efforts have paid off in terms of better policy and procedures, more trained LPAs who perform Right-of-Way work correctly, and an increase in on-time lettings and satisfactory quality assurance reviews. A few participants stated that the results of their efforts have been mixed and/or limited. Some states noted that more training of LPAs is necessary in order to bring them into compliance. Others stated that more oversight is required, including more auditing of project files.
How does your State determine the qualifications for an "experienced" or "certified" Local Public Agency?
State DOTs certify LPAs because qualified agencies typically require less oversight on the part of state DOT personnel. Responses to this question indicate that some states certify LPAs, while others certify the individuals who actually perform the work. At least one state indicated that it does not have any certified agencies and that it only certifies individuals to perform specific types of Right-of-Way work. Even states that certify LPAs themselves must necessarily look to the qualifications of LPA staff as a guide to whether the LPA is capable of performing the work. Some states appear to use a more informal process. One participant noted that his state tries to gauge what type of experience the LPA has in terms of years of experience in various areas and looks at the size of the LPA and whether it has the staff to perform the work. Another participant noted that the state DOT has a good idea of which cities or counties are qualified to process their own projects. Another stated that experienced LPAs are the ones who have successfully completed his review and where he knows the personnel will acquire the parcels according to the guidelines.
Most states indicated that they conduct a formal review of LPA staff qualifications. One state responded that it reviews the qualifications of each LPA staff member together with their experience to determine the level of expertise. Several states require LPAs to submit the qualifications and resumes of those performing the work as well as samples of their work. One state responded that it requires LPAs to submit acquisition capability statements detailing their qualifications and experience. Others stated that their manuals set out their processes and/or guidelines for certifying LPAs or that they provide LPAs with a checklist of requirements for certification. A few states mentioned that they look for experience similar to that of their own agents. One state commented that it has several pre-qualification levels based on the experience of the LPA. A few states indicated that LPAs must be recertified if they undergo staff changes that impact their qualifications or experience. A number of states noted that they do not grant blanket certification to LPAs, but rather certify them to perform Right-of-Way work on a project-by-project basis. At least one state mentioned that it does not currently evaluate the qualification of LPAs to perform Right-of-Way work, but stated that it is developing guidelines to do so in the future. Another stated that all of its counties and all of its cities that qualify as MPOs are permitted to perform federal aid Right-of-Way work.
What are the advantages and drawbacks of working with "experienced" or "certified" partners?
Scan participants cited a number of advantages to working with "experienced" and/or "certified" partners. One advantage is that they do not need to provide training or acquisition services. Another advantage cited is that experienced and/or certified LPAs require less monitoring, oversight and stewardship by state DOTs. A few participants mentioned that experienced and/or certified partners require less time on the part of state DOT staff. More importantly, a number of participants responded that experienced and/or certified partners perform high quality work and that their knowledge and understanding of the process results in better project delivery. One participant responded that LPAs that are experienced and know the process tend to have fewer violations; as a result, the acquisition process moves smoothly. A few participants indicated that they "know" or "can assume" that experienced and/or certified partners will follow the rules and will be in compliance. One state responded that it really does not have any certified partners.
The main drawback that participants cited to working with experienced and/or certified partners is staff turnover. Several states mentioned that staff turnover is high, requiring frequent retraining. Another common drawback cited is that sometimes experienced partners tend to cause problems because they are familiar with loopholes and try either to get too creative or to bypass certain requirements altogether. One state observed that experienced partners tend to have a difficult time accepting training, assistance or guidance. A few states mentioned that when they work with experienced and/or certified partners they tend to presume the LPAs are complying with procedures and that they sometimes overlook things or fail to look closely enough at the final product. Further, sometimes consultants working for LPAs have a false perception of their own knowledge and skills. Certification is typically based on prior experience, therefore the possibility exists that staff qualifications may be outdated. Several other drawbacks were cited by individual participants, including the fact that requiring staff to be certified 1) limits the number of people that can perform Right-of-Way work; 2) imposes an additional administrative burden on state DOTs; and 3) imposes a duty on state DOTs to provide training.
What techniques and resources do you use to ensure your "experienced" or "certified" partners operate within their procedures and in accordance with appropriate Federal and State laws and regulations?
The most common responses to this question were communication and personal contact, monitoring, and the conducting of reviews. Several participants responded that frequent communication and personal contact with LPAs by telephone, mail, and local visits contribute to effective oversight. Participants also cited ongoing monitoring and guidance as a way to ensure that experienced and/or certified partners operate in accordance with federal and state laws. One state commented that it has a Right-of-Way agent specifically assigned to LPAs. Numerous participants also responded that they conduct periodic project reviews as well as quality assurance reviews prior to certification and reimbursement. One participant explained that a detailed quality review is completed on each project by a right of way team. This team consists of four people from the areas of appraisal, acquisition, relocation and property management. Team members review the files, report any findings, and propose methods of correction.
Participants cited several other techniques and resources that they use to ensure that local agency partners comply with federal and state laws and procedures. Many states commented that they provide training to LPA staff. One state responded that it holds an annual workshop. A number of states make manuals and/or sample forms available to local agencies. One participant noted that state Right-of-Way staff follow the state's Right-of-Way manual on all federal and state guidelines and procedures. A few states explained that they utilize an LPA Right-of-Way agreement specifying the roles and responsibilities of the state DOT and local agency. One state responded that it requires LPAs that are not qualified to perform Right-of-Way work themselves to use approved consultants. Finally, one state responded that it has conducted little oversight of LPAs up to this point, however it is moving toward greater monitoring of LPAs.
What techniques and resources do you use to ensure your inexperienced or occasional partners operate within their procedures and in accordance with appropriate Federal and State laws and regulations?
Numerous states responded to this question by stating that they use the same techniques and resources with their inexperienced or occasional partners that they do with their experienced and certified partners. A few states commented that they are more hands-on or that they "stepped up" their oversight when dealing with inexperienced partners. The most frequent answer to this question was that states ensure compliance by inexperienced partners by providing additional guidance and supervision. Several states mentioned that they closely monitor the work of inexperienced partners through their regional LPA coordinators. One state commented that it tried to engage in early coordination with inexperienced LPAs. Another way that states ensure compliance by inexperienced partners is through site evaluations and project reviews. One state explained that it reviews and approves all work by inexperienced LPAs, i.e., appraisals, settlement offers, relocation payments, while the project is in progress. Several states noted that they ensure that inexperienced LPAs follow relevant law and regulations by either performing the work themselves or else offering state DOT staff to assist and team with local agency employees. Other techniques cited for assisting inexperienced LPAs include increased training and assistance with consultant selection.
How often do you conduct reviews to assure compliance with procedures, laws and regulations?
The most common answer to this question was that the frequency of compliance reviews depends on the size and complexity of the project and the state's degree of confidence in the LPA. A few participants stated that reviews are conducted "as needed." One state commented that small projects involving less than five parcels may only be reviewed once, while larger projects typically receive periodic reviews as groups of parcels are acquired. Some states gave more definitive answers. One participant stated that reviews are conducted frequently at various stages of the project, while another stated that monitoring is done on a regular basis while a project is ongoing. One state conducts reviews at the beginning, during, and at the end of the acquisition process. Another participant stated that "letting" status reviews are conducted every month. Several participants commented simply that every federal aid project is reviewed at least once. One participant explained that reviews are performed only once at this time, except if corrections are needed prior to acquisition. A few states noted that in addition to periodic reviews they also conduct a final review prior to certification. One state commented that it does not conduct reviews since its "hands on" approach during the project process provides it with a complete history of the project. In addition to project reviews, several states mentioned that they conduct process reviews; such reviews are less frequent, taking place anywhere from every year to every several years. State DOTs also periodically conduct joint process reviews of their LPA programs with the FHWA.
What is working well?
Participants mentioned several techniques and strategies that are working well. Several states mentioned that early involvement in an LPA project and maintaining constant contact with all parties involved help to make the project run more smoothly. Other techniques that work well, according to participants, include monitoring the progress of the project, providing guidance along the way, and conducting quality assurance reviews. A few states mentioned that their organizational structures, consisting of a central office along with LPA coordinators in regional offices, worked well. Other strategies that were cited as working well by one or more states included providing training to LPAs, providing a website for LPAs to access information and forms, requiring LPAs to follow the state's Right-of-Way manual, and performing Right-of-Way work directly on behalf of local agencies.
What needs to be improved and how?
Numerous participants responded that training needs to be improved and expanded. Several states commented that they need to be more proactive in training LPAs. One participant stated that LPAs need increased knowledge of the Right-of-Way acquisition process through better training and monitoring. Another stated that more effective dissemination of requirements is necessary and that politicians also need to be educated. A number of states responded that the process could be improved through more upfront involvement in LPA projects. A few participants expressed that states need to receive project plans earlier and need to be involved in the scoping and planning of Right-of-Way requirements. Participants also noted improvements that could be made to their own organizations. One state commented that it may need to assert more control at the central office level, without, however, creating more "red tape." Another noted that it needs better internal coordination with its Local Programs Division. Another state commented that it might be helpful to regionalize into smaller districts to improve communication with local agencies and promote earlier notification of upcoming local projects. A few participants recognized the need to develop and/or improve polices and procedures for LPA oversight. Other suggestions for improvements included: 1) performing quality assurance reviews; 2) entering into contracts with LPAs; 3) not allowing projects to be advertised or let until Right-of-Way has been acquired; and 4) establishing a certification process for LPAs and auditing them periodically. Finally, one participant stated that additional resources were needed to provide oversight of LPAs.
Do your proposed solutions require Federal or State legislation or regulatory changes?
The overwhelming response of participants was that no federal or state legislation or regulatory changes are necessary. One participant commented that there are already too many regulations, many of which are unclear. One participant stated that guidance might be required on what constitutes an appropriate level of oversight. Only one participant responded that legislative or regulatory changes are required.
What additional resources could FHWA provide to assist you in this area?
The most common response to this question was training. Numerous states commented that they would like to receive more training information and materials from the FHWA, including information on best practices in the states. One participant stated that the FHWA should develop courses and provide training at reasonable costs and at locations that minimize travel costs. Another participant recommended offering more Scans such as this one. A few participants noted that the FHWA already provides some good training materials, including the CD on real estate acquisition for LPAs. Several participants responded that the FHWA could assist the states in fulfilling their oversight responsibilities by providing additional staff in the FHWA Division Offices. One participant stated that it would be useful to have an FHWA trainer for municipalities. Another commented that "[a]s we all become busier it is more important to have a full-time person available for Right-of-Way." Other states requested that the FHWA provide additional written guidance and/or other documentation on federal policies and procedures. One state responded that it would be helpful if the FHWA provided assistance with developing LPA manuals and performing quality assurance reviews. Finally, a few states indicated that the FHWA is already providing sufficient resources. One state commented that Right-of-Way oversight of LPAs is not an FHWA issue, but rather a state DOT staffing problem.
General Comments/Information (any related items not covered above).
One participant responded that because of differences in state laws we need to recognize and support differences in individual state processes and procedures.
The Michigan Department of Transportation arranged for Scan participants to visit two sites in Detroit to provide context to Scan discussions and allow Scan participants to see some local projects for which MDOT has oversight responsibility. Sherry Piacenti from MDOT's Real Estate Division conducted a briefing prior to the site visits. Both projects that the group visited are Public-Private Partnerships, according to Sherry.
Ambassador Bridge/Gateway Project
The first site visit was to see the Ambassador Bridge/Gateway Project. The Ambassador Bridge, built in 1929, is privately owned and operated by the Detroit International Bridge Company (DIBC). The bridge connects Detroit and Windsor, Ontario, and serves as North America's busiest international border crossing. The surrounding access routes to the bridge are all local roads, which are heavily congested with commercial and passenger vehicles waiting to use the bridge. The Gateway Project involves connecting the bridge to an existing freeway. The State of Michigan's goal was to facilitate border crossings between the U.S. and Canada by providing direct access to the Ambassador Bridge. The project was developed in conjunction with capacity improvements already planned for the I-75 and I-94 corridors. In addition to providing direct access to the bridge from the trunkline system, other purposes and features of the project include relieving traffic congestion on local roads, accommodating the needs of the City of Detroit and the Mexicantown community, beautifying the entrance to the State of Michigan from Canada, and constructing a Travel Information Center.
Sherry observed that the project presented a number of challenges. The project was unique in that it required special federal legislation. Challenges also existed in terms of design and real estate acquisition. Design was a challenge because the plaza in front of the bridge is very small, therefore it was difficult to fit the project into the footprint. With respect to acquisition, the project required both MDOT and DIBC to purchase Right-of-Way for the roadway portion of the project. As a consequence, all parcels needed to be acquired in accordance with FHWA and state requirements. Essentially, DIBC was required to follow the same regulations that MDOT requires local public agencies to follow. One interesting part of the project, according to Sherry, was coordinating with DIBC. In addition, besides MDOT and DIBC, the Gateway Project required intense cooperation among other public and private stakeholders, including the City of Detroit, U.S. Customs and Border Protection, the General Services Administration, the Mexicantown Economic Development Corporation, and the Department of Homeland Security, which became involved after the September 11, 2001 terrorist attacks.
The second site visit was to visit the area around the planned Detroit Wayne County Port Authority Boat Terminal. This LPA project is a proposed $10.5 million boat dock and terminal building facility located on the Detroit River behind General Motors' headquarters in downtown Detroit. The facility will accommodate Great Lakes cruise ships and is part of a two billion dollar riverfront re-development taking place in Detroit, which will include new parks and promenades along the river. The economic impact of the project on other Great Lakes port cities is estimated at $37 million per year based on consumer and tourism revenue. Because of its considerable economic impact, this unique project involves many partners and funding sources, including the City of Detroit, FHWA, General Motors Corporation, the Clean Michigan Initiative, the Kresge Foundation and the Detroit Conservancy. While the Detroit Wayne County Port Authority Boat Terminal is the project lead, MDOT has an oversight role because the project is using FHWA funds for the terminal building. MDOT's role in this project was to provide expertise, training, and oversight of the real estate acquisition process, access issues, and building specifications to ensure accordance with the Uniform Act.
The Office of Real Estate Services asked each state attending the Scan to make an informal presentation of approximately 10 minutes about Right-of-Way oversight activities within that state. The presentations were meant to provide an opportunity for participants to learn about issues and challenges faced by their peers in other states as well as ways in which other states have confronted those challenges. The following are summaries of the presentations made by the 12 states attending the Scan.
The State of Washington was represented by Gerry Gallinger, WSDOT's Director of Real Estate Services, and Dianna Ayers, Assistant Director of WSDOT's Relocation Assistance Program. WSDOT not only provides oversight to local agencies, but also performs work for them on a reimbursable basis when possible. LPAs are grateful for these services and are very willing to pay for them, according to Dianna. A few local agencies in Washington have their own real estate staff and are approved to perform Right-of-Way work, but that is rare. The Local Programs Office is responsible for all local government liaison work except for Right-of-Way. One of the challenges Washington faces is when local governments believe they can handle things without state involvement.
Washington spends about half of its FHWA highway funds on LPA projects. The state has 39 counties and 350 communities and town towns, 228 of which are approved to perform various aspects of Right-of-Way. Most local agencies are approved because they contract with a consultant to perform Right-of-Way work or else they are only approved to perform appraisals. Each regional office in Washington has an LPA coordinator. While regional LPA Coordinators report to their regional managers, they participate in an annual meeting to discuss statewide processes.
Washington has a Local Agency Guidelines (LAG) Manual, which is printed by its Local Programs Office. The LAG Manual provides the procedures that local agencies must follow, explains the staff qualifications and other items that they must provide to WSDOT in order to perform their own Right-of-Way work, provides sample forms that local agencies can use, and describes the certification process. WSDOT provides a significant amount of training to LPA staff. It offers a course called Right-of-Way ABCs, which is geared towards engineers to help them to understand the state's process. It also offers a course on the real estate acquisition process for FHWA funded projects, a course on changes to the federal regulations, a series courses on relocation, a course that covers the entire Right-of-Way process from beginning to end, and courses on appraisal and appraisal reviews. WSDOT also provides topic-specific on-demand training. An example of such training is a course on how to write an administrative settlement. WSDOT training is performed by central office staff and by Local Government Coordinators in the regions. WSDOT has an excellent relationship with its FHWA Division Real Estate Officer, who assists the state by also providing training to local agencies. WSDOT provides a number of other resources to LPAs. It offers several reference materials online, including the LAG manual, the Right-of-Way Manual, and appraiser lists. WSDOT's Real Estate Services website is located at www.wsdot.wa.gov.realestate/default.
Gerry and Dianna discussed examples of challenges that they face working with local government agencies. One challenge is staying current with the regulations. Their philosophy is that it is WSDOT's responsibility to get information to the local governments.
Another challenge they face is that local agencies sometimes follow more than one process. WSDOT encourages local agencies to use the federal process so that a project is not disqualified from federal participation. A third challenge cited was high turnover of LPA staff and consultants. They also noted that local agencies sometimes start the voluntary process and abandon it if it does not work. It is a challenge to make LPAs understand that the voluntary process does not work that way. They stated that uneconomic remnants sometimes present concerns and confusion. Finally, they noted that incomplete certifications remain a problem for WSDOT. Because of schedule compression, it is not uncommon for the engineering staff to be ready to build before Right-of-Way acquisition has been completed. In conclusion, Gerry and Dianna emphasized that in Washington the key to success and to overcoming these challenges has been effective partnership with local government agencies.
Ellen Gearing, Southeast Region LPA Coordinator for the Wisconsin Department of Transportation (WisDOT), presented on behalf of Wisconsin. She provided Scan participants with a CD-ROM containing useful materials, including several PowerPoint presentations, a copy of Wisconsin's training agenda and two real estate timelines. One of the challenges that Wisconsin faces, according to Ellen, is that Realty is being squeezed in terms of time. One of the presentations on the CD-ROM is entitled "Concrete Block" and focuses on the fact that, like a concrete block, the Right-of-Way process cannot be squeezed. One technique that Wisconsin employs is that of the blitz. A blitz is suitable for a project that is relatively minor and not complex. Property owners are invited to a meeting, which is also attended by engineers and real estate staff. The project is explained to the homeowners as a group. The goal is to sign up as many people as possible at one meeting. Wisconsin has signed up as many as 50 property owners at one meeting using this technique. Ellen states that WisDOT evaluates every project to determine if it is a candidate for a blitz.
For larger or more complex projects, WisDOT conducts a kickoff meeting with local agency staff at which WisDOT and the local agency sit down and talk about the project, discuss difficult parcels, and coordinate schedules. Holding a kickoff meeting should answer all the questions that both sides have and make for a smoother project. It has worked well so far, according to Ellen. One of the other practices that WisDOT employs is to hold User Group meetings. At User Group meetings, coordinators from all its regional offices and the central office LPA facilitator get together to discuss issues that have come up and compare best practices among regions. User Group meetings are held twice a year and everyone find the meetings very useful. A subgroup of the User Group currently is working to update WisDOT's LPA Manual.
WisDOT uses consultants to help with its Right-of-Way oversight. Some regions use consultants and some do not. Ellen stated that WisDOT's use of consultants seems to be working well. A consultant manager is involved in all projects. Consultants make the initial contacts with local agencies and answer most of their questions. Questions that they cannot answer and any approvals that are required get passed on to Ellen. Ellen also gets involved in projects that are somewhat unique or complex. When consultants are acting as LPA Coordinators, they are extensions of WisDOT staff. The idea of consultants managing other consultants was a problem for some people. The state of Wisconsin places restriction on consultant managers. A consultant manager cannot bid on any projects in the regions in which he is managing work and cannot work on any project for a certain period of time after the termination of his or her contract. WisDOT has involved local agencies and consultants in the planning and implementation of training sessions. Training sessions are held every two years and cover processes and also issues that have cropped up in which WisDOT has seen problems. An audience member asked Ellen whether consultants in her region answer to her or to the central office. She responded that they answer to her.
Tennessee was represented by Mike Clinard, who serves as Director of that state's Right-of-Way Division. Mike stated that Tennessee DOT has very limited LPA program activity. The state has not had good experiences working with local government agencies in the past. However, the Tennessee DOT's new commissioners are seeking for the state to move toward more activity with local programs. Tennessee DOT's strategy is to look more closely at LPA program administration and to develop a more umbrella approach to local programs. That is, the state is looking to revamp the program entirely by examining all disciplines as a whole and seeing how they fit together with the goal of making the program more focused. Mike gave the example of a project that was planned six years ago that became began very simple, but became very complicated. At the beginning, no federal money was involved and the only land involved was farmland inhabited by cows. Thus, the project was an uncomplicated project that the small local government was capable of handling. The project became much more complicated after developers from the city became involved. At that point, the local government discovered that it could no longer handle the project and that it needed federal involvement. In conclusion, Mike noted that his philosophy is that a good contract makes for a good project. He reminded everyone that an agreement with an LPA is only as good as the contract on which is it is based, therefore he strives to make sure that contracts that Tennessee DOT enters into are iron clad.
Jim Viau, Administrator of the Ohio Department of Transportation's Office of Real Estate presented on behalf of the state of Ohio. Jim described a unique contracting vehicle created by ODOT to assist local agencies. In the past, ODOT used to acquire the Right-of-Way for local government agency projects. ODOT no longer has the staff to do so and has delegated this work to local agency staff. Ohio counties hired consultants to perform Right-of-Way work for them, but county governments soon discovered that the consultants were taking advantage of them and contacted ODOT for assistance. ODOT devised a two-prong approach to deal with potential abuse by consultants. First, ODOT would train the counties on what it takes to acquire Right-of-Way and explain to them that shortcuts existed that their consultants were not telling them about. To this end, ODOT provided a great deal of education and outreach through the Country Engineers Association of Ohio (CEAO) and put the counties in touch with ODOT district staff.
The second prong of ODOT's strategy was a contracting vehicle developed six years ago to assist counties in procuring Right-of-Way consulting services. Ohio funds county Right-of-Way programs in the amount of $20 million per year, which is taken directly off the top of ODOT's budget. ODOT pays for this contracting vehicle out of the $20 million allocated to counties because the contracting program is for the exclusive benefit of the counties. Under the program as it was initially established, the state was broken up into four regions. Contracts were for three years and were funded at $100,000 per contract. ODOT's goal is for the money to be distributed as widely as possible, therefore the contract funds can only be used for projects involving ten or fewer parcels. Contract funds may not be used to pay for actual Right-of-Way acquisition. The contracts contain standard fees for labor to ensure that counties are being charged a uniform market rate for services. In addition, ODOT provides copies of its own contract and fees and encourages counties to use these documents. Consultants should honor the same fees as under the state contracts.
ODOT has recently made some changes to this contracting program. New contracts are for $200,000 for two years and are statewide. In the past, contracts allowed consultants to charge for travel on top of their fees. Under the new statewide contract, travel is now an upfront estimate to prevent abuse by consultants. Another difference in the new contract is that two firms can now perform different portions of the same job.
Benefits of Ohio's contracting program include that fact that it sets standard reasonable fees, fosters improved communications between the districts and the counties, and allows Right-of-Work to be performed in a quick and efficient manner. Further, ODOT knows that quality work is being performed by certified consultants. One ODOT central employee administers the entire program. The counties and districts have embraced the program because it works. ODOT received an Excellence in Right-of-Way award for LPA Stewardship oversight for this program. Jim highly recommends that other states set up similar programs if their state laws permit them to do so
Ronald Noedel, Right-of-Way Section Manager for the New Mexico Department of Transportation, represented New Mexico. In New Mexico, all Right-of-Way services are performed out of the general office in Santa Fe. The Real Estate Section employs seven acquisition agents, two relocation agents, one agent who performs all government plans, and one tribal/local government agent. The state is broken down into six districts, with one lead agent for each district. Don Trujillo, who is also attending this Scan, deals with all of the tribes and local government agencies. New Mexico does not have many local projects that involve Right-of-Way. Only one county has Right-of-Way staff and the state DOT is comfortable with its work. For smaller projects, local agencies that do not have the staff to perform Right-of-Way work, Don Trujillo is sent to do it for them. When a JPA is created (when locals come to the state for funding), the LPA usually signs off that no Right-of-Way is required for the project. Later, however, it realizes that it does require Right-of-Way and comes to the state for assistance. The New Mexico DOT signs a Memorandum of Agreement with the local agency to set out who is responsible for what. The state has held training for local agencies, districts and consultants. It has not had a great deal of success in this area. The state maintains a list of pre-approved appraisers that local agencies can use. Before LPAs enter into a contract with a consultant, they are required to inform the state DOT what fees are being charged to ensure that the rates are not inflated. New Mexico conducts audits on projects to make sure files are in order. In the case of large projects, the state will audit a sample of the parcels. In the case of small projects, it will likely review all the project files. All New Mexico DOT forms are made available to local agencies for their use. The text of the forms is not modifiable, however the LPA may personalize the forms by using its own letterhead.
Nebraska was represented by Randy Needham, Right-of-Way Division Manager for the Nebraska Department of Roads. While the Department of Roads has eight field offices, Right-of-Way operations in Nebraska, including all environmental and design work, are completely centralized in Lincoln. In the past, the Department of Roads performed all of the Right-of-Way work for local government projects that were large and/or complicated. Recently, the Department of Roads turned this work over to the local governments themselves, providing them a list of consultants if they require assistance. The primary way in which the state has provided oversight has been to review project files at the time of Right-of-Way certification. This has worked fairly well, according to Randy, but he commented that the state should probably get involved in major local projects sooner so that it can provide better service to local governments. In the case of smaller local government project, the Department of Roads asks the local LPA to submit copies of all relevant documents. Randy noted that there are a lot of donations in Nebraska. Only four local agencies, Nebraska's two largest cities and two largest counties, have any kind of Right-of-Way staff. Their main function is to hire a consultant and sometimes to perform negotiations. The state provides more oversight on parcels requiring relocation assistance. Consultants are required to obtain approval from the Department of Roads before offers are made to displacees and before payments are disbursed after relocation is approved. LPAs and/or their consultants are required to submit their payment packages to the state for approval. The state has a better handle on the relocation program of local government agencies because of these requirements, according to Randy.
Randy noted that one of the challenges faced by the state in fulfilling its oversight responsibilities is that local programs in Nebraska are administered by two separate divisions: county work is administered by one division and city work by another. It is a challenge to educate two sets of people in Right-of-Way laws and procedures. In addition, the two divisions use different procedures. The division responsible for county programs schedules projects as soon as it receives a clear Right-of-Way certificate from the county. City projects work in the opposite way. Cities are notorious for issuing conditional Right-of-Way certificates and public interest letters. It is not unusual for the state to receive a public interest letter indicating that a city wants to advertise for bids when the city has not yet made any offers to purchase. He noted that Omaha, in particular, has had a couple of bad experiences with letting projects without owning any Right-of-Way. Another challenge in Nebraska concerns projects in smaller counties. Some smaller counties have no county engineer, while others are not at all familiar with Right-of-Way procedures. The state needs to educate county staff, but faces two problems: first, turnover is high among county employees; second, small counties only have a project every few years. Cities tend to have more knowledge of what Right-of-Way work requires, however sometimes it if difficult to get city staff to properly complete forms and write reports.
Eric Smith presented on behalf of Michigan, the host state for this Scan. Eric is manager of the MDOT's Appraisal-Acquisition Support Unit. Eric stated that while MDOT is a decentralized organization, monitoring and training of local public agencies are central office responsibilities. LPAs are responsible for performing their own acquisition work from start to finish. MDOT's role in this process is to provide support, technical expertise, and general training. The mainstay of Michigan's oversight program is training. Training for LPAs in how to perform Right-of-Way work is extremely important in Michigan. Michigan has a liberal condemnation law with strict procedures. If LPAs do not follow these procedures, they may not be able to condemn a parcel, therefore they need to know what they are required to do if condemnation is necessary. MDOT has found that face-to-face training builds relationships with LPAs and is the most effective form of training. MDOT conducts formal training sessions for local agencies. One challenge it faces is that local agencies that need training the most are those least likely to participate in it. MDOT believes that in order to conduct effective oversight, it needs to understand its own costs. It has just begun an initiative to track its own costs of conducting oversight of LPAs, including staff time and training-related expenses. Michigan is also working to implement a quality assurance program for LPAs. Rather than MDOT's performing compliance audits of local agencies, it is working to set up a process whereby LPAs establish and implement their own quality control plans. Finally, MDOT's LPA Program Planning section sends out a newsletter to local agencies in which the Real Estate Division communicates information about training opportunities and other topics.
Pamela Prentiss represented Massachusetts. Pamela is a Community Compliance Officer for the Massachusetts Highway Department. In Massachusetts, Right-of-Way work is broken down into state highway work and municipal work. Pamela stated that as a Community Compliance Officer she is responsible for municipal work. She noted that she tries to get involved in projects as early as possible. She likes to review preliminary Right-of-Way plans. She also attends 25% design public hearings, at which meeting participants discuss whether Right-of-Way will be acquired or needed, and conducts site visits. Pamela and her colleague Dan Gentile handle the entire state of Massachusetts. One challenge, she noted, is that, while Massachusetts is a condemnation state and cities have the power to condemn, small towns do not have such power. Rather, the power to condemn is granted by the public through the public meeting process, which can be time-consuming. Another challenge is the lack of consultants qualified to perform Right-of-Way Acquisition work. Many municipalities are performing such work themselves, however some of them have very little experience. According to Pamela, Massachusetts' best practice is staying in constant contact with municipalities. She and Dan review every document to make sure it is correct and complete. They also make it a point to establish and maintain contact with landowners and consultants. Before a public meeting is held, they send letters to property owners explaining the eminent domain process and letting property owners know who they are and how to approach them. During public meetings, they hand out the same packets and let property owners know that they are the property owners' contact with the state. They also meet with consultants to discuss projects and provide guidance.
Rhonda Barnett represented the state of Georgia. Rhonda is GDOT's Chief of Acquisition. She made a presentation on best practices for Right-of-Way oversight in Georgia or "the things that Georgia does best." Rhonda stated that Right-of-Way oversight in Georgia focuses on three things: 1) early involvement; 2) clearly defined responsibilities and expectations and uniformity of process; and 3) staying engaged throughout the process. She stated that emphasizing these three areas has helped Georgia to effectively deliver its local government programs. Georgia focuses its activities on delivering its local government program through all three stages of the Right-of-Way acquisition process: pre-acquisition, acquisition, and the certification process. In the pre-acquisition stage, according to Rhonda, early involvement is achieved through project inspections, which are performed for every project, including local government projects. Numerous parties are involved, including the local agency, the Local Government Coordinator, the reviewer, the relocation officer, and any consultants that are being used. Georgia's procedures stress the importance of establishing clearly defined responsibilities among the parties involved. The responsibilities of both the state and the local agency are spelled out in local government project agreements and reimbursable or non-reimbursable acquisition contracts. Finally, in order to help stay engaged throughout the project process, GDOT holds "letting" status meetings to address potential problems early in the process so that projects can be let on time.
John Garner presented on behalf of the state of Florida. John serves as Manager of Right-of-Way Production and Operations for the Florida Department of Transportation (FDOT). Until recently, Florida had a very small local agency program. The state had sufficient resources and typically performed all the Right-of-Way work for local agency projects in order to ensure that the work was performed correctly. Florida's local agency program is set to grow exponentially in the near future as a result of a new growth management initiative in Florida. A major program in Florida is the Transportation Regional Incentive Program (TRIP). Under this program, two or more counties work together to develop and implement transportation projects of regional significance. The local partners and state each contribute 50% to the cost of the project. John commented that local governments typically want to bring Right-of-Way to the table as their contribution to the project and like to obtain Right-of-Way through donations. Florida has to be careful, according to John, to make sure that local governments do not use coercion to obtain such donations. A challenge that FDOT will have to face in the future is dealing with the growth of its local agency program. John noted that while FDOT was recently reviewed by the FHWA and received a reasonably clean report card, it does not currently have the infrastructure in place to deal with the growth it anticipates in this program. FDOT's greatest strength, according to John, is its training program. FDOT has a strong training program for its own staff, and has been opening up its training to local government staff as well. In the past, some local agencies sent staff to FDOT training, however due to staff turnover, the next time the local agency had a project, the person who received the training was no longer there. As a result, John concluded that just-in-time training works better. In addition to providing training, he stated that in the future FDOT will attempt to be more proactive in its Right-of-Way oversight of LPAs.
Patricia Jones discussed best practices in California. Patricia is the Chief of the Office of Appraisals and Local Programs for the California Department of Transportation (CalTrans). California recently revised its Right-of-Way Manual. The state requires LPAs to follow its Right-of-Way Manual in order to be qualified to perform Right-of-Way activities on federal aid projects. California has three different levels of qualification based on the LPA's staffing and on the experience and training its staff has received. An LPA can be approved to perform certain Right-of-Way functions or fully qualified to perform all Right-of-Way activities. LPAs are required to notify CalTrans when they experience significant changes to their staff. Most LPAs in California hire consultants to meet the state's requirements; only a few local agencies meet the state's requirements on their own. When a local agency serves as the lead on a state highway project, CalTrans only approves them to perform Right-of-Way work on a project-by-project basis. The LPA is required to submit a work plan, a timeline with milestones and a staffing plan. Patricia commented that she picked up several ideas at this Scan, particularly with respect to how to make sure that consultants' qualifications are up to date.
Patricia also discussed the training that CalTrans provides to LPAs. Right-of-Way is divided into two different sections within CalTrans, according to Patricia. The Division of Local Assistance administers local streets and roads federal aid projects, while a separate project delivery section administers state highway projects. The Division of Local Assistance entered into a contract with the University of California at Berkeley to develop and deliver a series of five one-day courses on administering federal aid projects: 1) Get Your Federal Aid Project Started, 2) Environmental Analysis, 3) Right-of-Way Acquisition, 4) Federal Aid Project Development Requirements, and 5) Construction Contracting. Evaluations revealed that the material presented was perceived as stale and that the instructors not keeping up with changes in the field. As a result, CalTrans entered into an agreement with Berkeley to take over the courses, revamp the material and deliver the courses itself. California has about 6,000 local agencies and courses are administered 8-10 times per year with 30 participants per class, therefore CalTrans is able to train about 300 local agency staff and consultants per year. Local Agency Coordinators in CalsTrans' districts will be teaching the course and CalTrans has invited local FHWA field representatives to attend and/or help co-instruct the courses. Delivering this training to LPA staff is a major part of CalTrans' Right-of-Way oversight program and Patricia is excited about the prospect of developing and delivering training course directly.
Paul Bowlin, Right-of-Way Engineer for the Alabama Department of Transportation, represented the state of Alabama. Paul discussed several ways in which Alabama seems to differ from other states with respect to Right-of-Way oversight. He commented that Alabama may do things differently from other states because its laws are written differently. In particular, he discussed the fact that several states had commented that they get reimbursed for the Right-of-Way work they perform on behalf of local government agencies. Alabama law does not allow the state to let projects out of its projected cash flows as some other states do. Rather, anytime the state DOT establishes planning, Right-of-Way, or other types of budgets, the money budgeted is set aside and is no longer available for use. As a result, all projects are already in the state DOT's project system and state DOT staff charge their time directly to those budgets. Paul also discussed the use of consultants in Alabama. He stated that in Alabama, local agencies have two choices. They can either employ consultants with which the state DOT has on call agreements or they can employ their own consultants, however in the latter case they must demonstrate that they have used the same competitive process that the state uses for a federal aid project. Finally, Paul noted that in Alabama the issue of the quality of appraisers is not a problem for LPAs, except perhaps for staff appraisers. He explained that state law in Alabama sets the standard for the certification of appraisers that the state, county or city can use, therefore LPAs in Alabama end up employing the same appraisers that the state does.
Presentation by Detroit Eminent Domain Attorney
The next item on the agenda was a presentation by Detroit attorney Ruben Acosta. Mr. Acosta is a principal with Williams Acosta PLLC, a Detroit-based full-service law firm. One of the firm's specialty practice areas is eminent domain law. Over the past 15 years, the firm has represented municipalities across Michigan in eminent domain cases and has represented Detroit in connection with its land acquisition for many large developments in the city, including the stadium and the casinos. Both the firm and Mr. Acosta personally are familiar with many of the issues that plague LPAs in connection with acquisition. Mr. Acosta discussed various issues of relevance to the Right-of-Way acquisition process, including the pitfalls of delays and under funding in the project planning process and tools that are available under Michigan's statutory scheme to facilitate projects.
The Detroit City Airport project is an example of the pitfalls of delays and under funding. In the late 1980s, the city of Detroit wanted to expand the airport because it was being underutilized. It began by gathering federal and state funds and approvals for expansion. The problems began when plans were delayed because funding was not completely in place. The city did not have sufficient funds to acquire all of land it required, so it began to acquire land in a piecemeal manner. Consequently, landowners in the area began to anticipate condemnation. The city was involved in three court cases as a result. In Merkur Steel Supply, Inc. v. City of Detroit, the plaintiff sued the city on the grounds of inverse condemnation, claiming that there had been a de facto taking of its property. This case introduced the novel theory of "blight by planning." The city did not deprive the owners of the use of the property, nor was there a regulatory taking. Rather, the plaintiff's theory was that the City's planning was so poor that it caused the neighborhood to deteriorate to the extent that a de facto taking had occurred. Mr. Acosta stated that in the first two cases against the city, juries awarded over $11 million to both owners and tenants for lost value to their properties; despite this fact, the city still does not own the property. The Michigan court of appeals affirmed the trial court in Merkur Steel. The third case is currently in litigation.
The problem in Merkur Steel, according to Mr. Acosta, was that the project was underfunded and mismanaged. One lesson to be drawn from this project is that LPAs need to focus more on investing in projects and limiting their exposure. Local agencies need to fully understand the property that is being acquired. For example, they need to know about the owner, how the property is being used, any proposed plans for the property, and all the elements of value for the property. LPAs also need to know about the tenants, if applicable. In Michigan, LPAs start the condemnation process with an appraisal of the full market value of the property. Mr. Acosta suggests that LPAs arm their appraisers with the ability to conduct a thorough investigation of properties because appraisals establish the floor for what LPAs will eventually pay for the property. He emphasized that the inclination of juries is to give the benefit of the doubt to property owners, therefore local agencies need to invest in the appraisal process.
Mr. Acosta also briefly discussed the fact that the rules under which LPAs are required to function are fairly rigid and that the interplay among oversight agencies involved in a project creates challenges. For example, he observed that his experience has been that different agencies have different goals and constraints. That makes it difficult to negotiate creative settlements. He suggested that oversight agencies can assist LPAs by finding ways to add flexibility to the Right-of-Way process, which would allow for more creative solutions.
Finally, Mr. Acosta discussed some statutory provisions in Michigan that have leveled the playing field between the parties in condemnation cases. He noted that a practical problem for LPAs in Michigan is that condemning agencies are required to provide copies of their appraisals to the property owners. However, property owners who challenge just compensation valuations in court and win are entitled to attorney fees of up to one third of the increase in valuation. This incentivizes litigation, according to Mr. Acosta. Moreover, the local agency is placed at a disadvantage in litigation because the property owner has a copy of the appraisal and knows the LPA's position.
The Michigan legislature passed a statute declaring that once an owner receives an appraisal he is obligated to object to the appraisal within 60 days on the basis that it failed to consider items of compensation. If the property owner does not file an objection within 60 days, then his claim is barred. This provision puts the onus on the landowner to come forward early in the process and before litigation has been initiated to identify items of compensation that may have been missed by the appraiser. Previously, the landowner did not have to provide an appraisal until litigation was initiated. The Michigan court of appeals has upheld the use of this statutory provision to bar a landowner from presenting additional compensation claims that were not identified within 60 days of receipt of the appraisal report. Another Michigan statutory provision allows a court to enter schedule orders that facilitate settlement, e.g., orders providing for the mutual exchange of appraisals. The mandatory exchange of appraisal allows LPAs to understand what property owners' claims are and what their potential exposure is in litigation.
Mr. Acosta's presentation elicited a number of questions and comments from the audience regarding the requirement that LPAs provide landowners with appraisals. Alabama commented that in that state, LPAs only provide property owners with summaries of appraisals. Mr. Acosta remarked that if an LPA is not legally required to provide a full appraisal, then it is probably not in its interest to do so. Florida commented that government agencies in that state are required to provide owners with full appraisals. Rebecca Krugman from Wisconsin stated that WisDOT would be interested in the 60 day provision that Mr. Acosta mentioned. She stated that in Wisconsin, government agencies have to provide landowners with appraisals. The state will pay for an owner's appraisal if it is performed within 60 days. She noted that this works well. She commented, however, that in Wisconsin a property owner has the right to appeal within two years of condemnation or six months of the transfer of deed. If the landowner receives a verdict that exceeds the state's appraisal by 15%, then the state is required to pay the landowner's attorney fees. Consequently, attorneys in Wisconsin frequently advise property owners to accept offers immediately without getting an appraisal and then to appeal later. When this occurs, the state has no idea what the owner's strategy is going to be in court.
The final activity of the Scan was a panel discussion on how to coordinate with smaller or more rural LPAs that may or may not have knowledge and/or experience with federal and state laws and regulations. Panelists were asked to consider issues such the advantages and disadvantages of working with aspiring stewardship and oversight partners, how they assist these partners, and what techniques and resources they use to ensure that these partners follow federal and state laws and regulations. Following the presentations, the floor was opened up for discussion by the full Scan audience.
The first panelist to speak was Gerry Gallinger from the state of Washington. Gerry commented that he does not see a big difference between working with larger local agencies and smaller ones, except that smaller agencies need a little more help because they typically do not have trained and experienced staff. He noted further that projects are infrequent, therefore a lack of continuity exists within agencies. One advantage of working with smaller agencies is that often such agencies seek out state DOT assistance because they realize they do not have the expertise to perform the work themselves. Another advantage is that typically the projects that smaller agencies are carrying out are small in scale and not very complicated. Gerry's main advice for state DOTs working with smaller or more rural LPAs is to work with them as if you are their partner. Do not behave as if you are auditing the project. He also recommends that state DOTs take some ownership in the project itself, noting that sometimes terminology can have an impact on how a project is perceived by the parties (e.g., your project vs. the project vs. our project). He also encourages state DOT staff to be flexible, to communicate early and often, to answer questions, to listen to local agency needs, to provide staff as possible, and to provide training targeted to smaller agencies. He commented that while state DOT staff should try to reinforce the positive aspects of projects, they still have to be willing to point out deficiencies. According to Gerry, Washington fulfills its oversight responsibilities through these types of activities as well as through project and process reviews.
The next panelist was Paul Bowlin from the state of Alabama. Paul observed that one thing that he has learned from this Scan is that there is no "one size fits all" approach with respect to Right-of-Way oversight. States have different approaches and use different techniques because differences exist in state laws and the characteristics of individual states. In Alabama, state Right-of-Way personnel have to deal with both county agencies and city agencies. The Right-of-Way Bureau is on the same level as other bureaus, such as those dealing with construction, maintenance, planning, design, and county transportation. The County Transportation Bureau certifies county Right-of-Way projects based on the documentation it receives from the counties. The Right-of-Way Bureau certifies city projects based on the information it receives from its staff in the field. The Right-of-Way Bureau has some interaction with the County Transportation Bureau, however the relationship between the two bureaus is not very well defined. He commented that this structure seems to work, however. The County Transportation Bureau manages county transportation issues with minimal involvement by the Right-of-Way Bureau on some complicated issues. What ties the work that the bureaus perform together is that both bureaus are located in the central office.
Alabama's Right-of-Way Bureau is organized into nine divisions. Most of the Bureau's real oversight takes place in the division offices. Division Right-of-Way staff answer to the Bureau's central office staff, but work more closely with County Transportation Bureau staff. Staff in the divisions know the people in the LPAs on a first name basis. This familiarity with the LPAs increases the effectiveness of Alabama's oversight program. Alabama operates using a very hands-on approach from the beginning to the end of the project. Appraisal reviews are conducted by division staff. Administrative settlements are also reviewed by the Right-of-Way Bureau. By the time a federal aid LPA project is complete, the Right-of-Way Bureau has the same documents in its files as do the county or city. Consequently, the state DOT does not have to go out and conduct a review in order to make the file complete. This process works well for Alabama. While other states attending the Scan mentioned that local agencies often do not have the knowledge or experience to perform Right-of Way work, Paul stated that in Alabama, even in rural areas, every county must have a professional engineer to be able to participate in the federal aid highway process, therefore every county has at least one person who is familiar with the federal aid process. In conclusion, Paul commented that it is possible that the Right-of-Way central office has put too much faith in the fact that the divisions are doing a good job and noted that the central office might need to establish better procedures for obtaining information on what is going on in the divisions.
The final panelist was John Garner from the state of Florida. John stated that working with smaller LPAs presents some special challenges. The universal comment that he hears from smaller LPAs is that they believe that they can perform work faster and for less cost than the state can. Another challenge related to working with smaller agencies is that such agencies tend to be fairly political and believe that they understand both how to deal with their constituents and how to acquire property better than the states does. Consequently, smaller local agencies are typically not interested in listening to what the state has to say. Once such agencies realize that they have to follow certain rules in order to receive federal funding, then they look to state DOT staff as the experts and ask them which consultants they should hire. Getting smaller agencies to the point to which they acknowledge that they are required to follow federal requirements is the real challenge.
In Florida, counties, cities and the state all follow the same condemnation law. With respect to acquisition, the only provision of the Uniform Act in which state law is not more stringent is the requirement to perform an appraisal. No provision exists under Florida law requiring an appraisal or appraisal review. Thus, the first hurdle is to convince local agencies that they have to hire competent appraisers and that they have to review the appraisal and determine just compensation. Another hurdle relates to relocation. Local agencies regard it as a giveaway and subsequently do not want to implement it, according to John. Hiring consultants to perform Right-of-Way work usually works well for local agencies as long as local authorities leave the consultant alone. John stated that most consultants do a good job, however when they are working for and getting paid by a local government agency, they are likely to follow the instructions of the local agency. He noted that the way around that is through close coordination and constant communication with the consultant. Local agencies typically do not have procedures in place for managing consultants; rather, they simply want the project done. Often state DOT district offices end up doing the project for local agencies. The state of Florida will not be able to continue to do so in the future. The state DOT assists local agencies in selecting consultants, including providing them with a list of approved consultants. Florida has a state rule specifying required qualifications for consultants, therefore all consultants on the state DOT's approved list are qualified. Florida requires experience in order to qualify as a consultant; training alone is not sufficient.
With respect to oversight of local agencies, Florida DOT uses a quality assurance process, however that process varies depending on the size of the project. For small projects, the state may only conduct a project review at the end. For larger projects, the state may conduct reviews periodically over the life of the project in addition to a final review prior to certification. John commented that Florida takes certifications seriously. He noted that the state's most effective practice is requiring district Right-of-Way managers to certify the project, that is, to sign their names saying that the project complies with federal and state law. District Right-of-Way managers will not sign their names unless they are comfortable with the work performed. Finally, project timing is critical in Florida. In contrast with other states, Florida does not have the ability to grant conditional certifications; under state law, title must be acquired to all Right-of-Way necessary for the project before the project can be let.
In an effort to improve future scans, Scan participants were asked to complete an evaluation of the Scan on Right-of-Way Oversight of Local Public Agencies. The full Scan was attended by 23 state DOT representatives from 12 states, all of which responded to the Scan Evaluation. All of the respondents stated that the Scan met their expectations and that the objectives of the Scan were met (rating of 4 or 5 on a scale of 1 to 5). Participants noted that the Scan was helpful in identifying materials and training resources for LPAs and that the Scan provided a good exchange of ideas. Nearly all of the participants responded that the site visits were appropriate for the Scan subject. Positive comments included that it was nice to see actual projects and that the projects were interesting. Scan participants stated emphatically that the Scan provided them with information that will be useful to them and their agencies. Several participants indicated that they planned to implement some of the ideas discussed at the Scan. Nearly all the participants were satisfied with pre-scan communications and the meeting facility. Scan participants provided numerous suggestions for future Scan topics, including acquisition processes/procedures/innovations, relocation and condemnation.
The purpose of this Scan was to foster the sharing of experiences and best practices among the states in the area of Right-of-Way oversight. Through activities such as presentations, panel discussions, breakout discussions, and site visits, Scan participants from 12 states discussed the various approaches they use to fulfill their oversight and stewardship responsibilities. Specific topics addressed included how state DOT real estate staff train their counterparts in LPAs, how they determine whether LPAs are qualified to perform Right-of-Way work, and how they assist smaller and/or more rural LPAs in complying with federal and state laws and regulations. Scan participants identified numerous ways in which they fulfill their stewardship and oversight responsibilities, including:
Conducting formal and/or informal training for LPA staff
Monitoring and conducting reviews during the project process
Providing technical advice and guidance through regional office staff
Communicating and maintaining contact with LPAs
Coordinating with LPAs early in the project process
Conducting final reviews prior to certification
Auditing completed projects and providing feedback
Providing resources to LPAs, including manuals and forms
Performing work for or loaning staff to LPAs
Entering into project agreements with LPAs
Employing consultants to assist with oversight
Providing contracting services to LPAs
Certifying qualified LPA staff and/or consultants
Other outcomes of the Scan include the following:
In order to determine whether LPAs or consultants are qualified to perform Right-of-Way work, states typically review their qualifications and experience and often require samples of their work.
States use the same methods to provide oversight whether the LPA is larger and experienced or smaller and relatively inexperienced, however in the case of smaller and/or more rural LPAs usually try to provide more hands-on guidance and supervision.
The result of state oversight efforts has been better compliance with federal and state laws and procedures and improved project delivery.
In conclusion, the Scan was a success because it gave states the opportunity to discuss issues with their peers and share common challenges and solutions to those challenges. Scan participants overwhelmingly stated that the Scan met their expectations and that the objectives of the Scan were met. Moreover, numerous participants indicated that they planned to take new ideas back to their states and to implement some of the best practices discussed during the Scan.