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The scan team found that while each state visited has experienced considerable success in improving their right-of-way acquisition and utility relocation processes, there is no single "silver bullet" that can be applied throughout the country. Instead, a range of tools and techniques exist that may be applied in different statutory, political, cultural, and geographic contexts. The team did find, however, that all three states shared common traits, including:
First and foremost, the team found that a supportive institutional environment was common to all of the states and agencies visited, and was in fact critical for achieving innovations and process improvements. Characteristics of a supportive environment include:
A team approach - The right-of-way and utilities staff the scan came in contact with in all three states demonstrated a sense of pride and a team feel to their tasks. A team approach encourages staff and consultants to collectively take ownership of the project and navigate around problems. This team approach was supported by a formal process in Florida defining how different disciplines, including right-of-way, utilities, design, construction, and environmental, would work together.
Upper management support - In each state, upper management provided the authority along with the responsibility and financial resources to accomplish the assigned tasks. Management support was critical to creating a "can-do" attitude where team members were committed to reaching a common goal.
Willingness to innovate and take risks - Right-of-way and utilities staff in all three states were given the freedom to try new techniques and develop new processes outside the norm, rather than adhering to established procedures and practices.
Provision of adequate resources - Each state demonstrated a commitment to providing the resources, including highly qualified staff, advanced technical tools, and financial resources, required to conduct and continuously improve their right-of-way acquisition and utility relocation processes. These agencies have realized that up-front investment in resources can pay dividends in the long run through reduced project costs and delays.
Commitment to monitor and improve performance - Each state has developed tools and procedures to track and monitor the status of actions and make adjustments as necessary. Measures such as meeting critical acquisition deadlines and achieving success in negotiations provide important feedback to staff and help to identify areas where improvements are needed. Post project evaluation can identify ways to improve the process for its next application. In Florida and Minnesota, these monitoring and evaluation activities reflect and support a broader agencywide commitment to performance monitoring and performance-based management.
A clear, well-defined, yet flexible process is critical to keeping project development, including right-of-way acquisition and utility relocation, on track. A number of process characteristics and innovations were demonstrated in the states visited.
Cross-disciplinary approach - All states made explicit efforts to have different disciplines, including design/engineering, right-of-way, utilities, environmental, and construction, work together beginning with the earliest stage of project development. This approach helps to identify and address critical issues early in the design process rather than creating delays or increased expenses when they are discovered later. It also creates a team atmosphere in which everyone feels responsible for making the project a success.
Early involvement of stakeholders - Similarly, each agency made efforts to involve external stakeholders as early as practical, including local communities, utilities, business owners, impacted property owners, and resource agencies. Early involvement alerts stakeholders to the need for the project and its potential impacts, helps establish trust, and helps the DOT identify design solutions to minimize impacts.
Explicit, written procedures - Florida DOT in particular noted the importance of having well-defined written procedures in place; for example, to specify the timing, participation, and agenda of team meetings. Minnesota DOT has established a formalized agreement with utilities describing how coordination will take place. Written procedures and documentation also are important for capturing institutional knowledge before mass retirements of an aging workforce, a concern of many agencies.
Incentives to maintain staff continuity - Especially for complex and high-visibility projects, it is helpful to have the same individuals follow the project process from beginning to end. Texas established incentives and disincentives with its consultant team to retain key project managers for the life of the Texas Turnpike SH 130 project.
Delegated decision-making authority - Decision-making occurs more quickly if it is made at the lowest level possible. States noted that avoiding the need to run routine decisions through a hierarchical chain of command was a key to keeping acquisition and relocation activities on schedule.
Conflict resolution - Similarly, conflicts (whether internal or with outside partners) are most efficiently addressed at the lowest level possible. Development of an "escalation ladder" to elevate disagreements and disharmony can be extremely effective in resolving disputes. A related technique is the "white paper" in which each party outlines the problem and their proposed solution. Staff who had tried this approach noted that simply explaining the perceived conflict in writing went a long way towards resolving it.
Collocation of major participants - Collocation of state agency staff, the design build consultant, right-of-way staff, and an FHWA representative with decision-making authority, has proven to be effective in fostering communication and reducing time delays.
Focus on schedule adherence - Florida DOT District 5 staff noted that they set and maintain strict schedules. If delays occur in one stage of the process, other members of the team work to make up the delays. The agency also has established dates beyond which design changes must be justified and approved by a committee.
Design-build - If permitted by state law, design-build can be an extremely effective tool for accelerating project development and completion. The design-build contract may be structured to include right-of-way acquisition, saving time by allowing construction to commence before all acquisitions are complete.
Technical tools are important to supporting an effective process. The electronic age has made possible the use of a large number of electronic tools to manage and share information to support project development and monitoring. Each state demonstrated a comprehensive set of technical tools to support functions such as project management, property and utilities management, and providing information to the public. Some examples of these tools include:
Property management systems - GIS-based tools to track the status of individual properties, including a color coded mapping system such as used in Texas and Minnesota, can be an effective way to easily ascertain the status of individual parcel acquisitions. The cross reference of GIS, property maps, and property owner names is an aid not only during the acquisition process but also for future property management and disposal of excess land.
Document and information management systems - Effective pursuit of innovative processes requires agency "investment" in terms of personnel, document management systems, equipment, electronic monitoring, and training. Document management systems become more critical as knowledgeable employees leave, taking the institutional history with them. Mn/DOT invested significant resources in turning old ROW maps and utility permits into electronic format but feels that this investment will pay off by making data-gathering more efficient and effective in the future.
Electronic field data entry - Electronic data management systems require investment of resources but can save time in the long run. This is especially true with the use of a single entry concept so that once original data is entered in the field it can be seamlessly transferred to the states electronic data system.
Visualization and animation technology can illustrate existing and proposed highway development in relation to buildings, property lines, and access impacts on adjacent property. This has proven to be a very effective tool for public involvement and for presentation to property owners. Mn/DOT has found three-dimensional flyover/animation techniques to be a particularly effective educational tool which can be used at public meetings and public hearings.
Web sites that provide information to stakeholders and the public, such as Mn/DOT's on-line real estate mapping systems, and FDOT and Mn/DOT's on-line utility information and permit applications, can make the ROW and utilities processes more efficient by improving communication with affected utilities and property owners and allowing speedy submission and retrieval of documents.
Environmental management systems - Identification and resolution of environmental issues is an important part of the ROW acquisition process, and close coordination is required between ROW, environmental, and project design staff. Florida's Efficient Transportation Decision-making program represents a technical tool as well as a process that consolidates environmental databases and makes them available for stakeholder use. Such tools help ROW and design staffs identify potential environmental issues and address them in advance.
A variety of other techniques are available, some of which may be applied in any state and others which may be applicable to specific contexts.
Incentive acquisition and relocation payments were effectively used in Florida to accelerate right-of-way clearance. Even where so-called incentive payments cannot be used, offering the highest supportable value to the property owner - rather than a minimum value - can expedite the acquisition process.
Advance acquisition payments have been used in Minnesota, through a fund established by the State, to assist local governments in making property acquisitions from willing sellers years in advance of the project.
Appraisal waiver and appraisal review modification - States including Florida have found the use of the appraisal waiver to be a highly effective method of reducing administrative costs and time associated with the development of an estimate of value as a basis for commencing negotiations for acquisition of real property needed for transportation purposes. These techniques are particularly useful in states with large numbers of acquisitions per year and an active real estate market where current sales provide a good measure of value trends.
Utility reimbursements - This technique may be appropriate and effective in some situations to facilitate active cooperation with utilities. For example, Florida uses this technique to expedite relocations in small and economically depressed communities, for which paying relocation costs would be a hardship. In Texas, 100 percent utility reimbursements were effectively used to expedite construction of the first phase of the Central Texas Turnpike System. To be most effective, the authority to reimburse utilities also must include the authority to hold utilities to a defined time schedule for completing this work. While utility reimbursements represent an additional cost associated with the project, it is possible that under many circumstances the benefits of a shorter development process, as well as earlier realization of public benefits (e.g., congestion relief and safety), may outweigh the additional costs.
Employment of subsurface utility engineering (SUE) early in the design process can identify potential utility conflicts and help address them either through project design or utility relocation strategies. Minnesota and Texas have mandated SUE work prior to the letting of design-build contracts in order to assist the contractor in bidding and manage the risk to the contractor.
Design mitigation strategies and value engineering - Property takings and utility relocation impacts often can be mitigated or avoided altogether through creative design strategies. Texas and Minnesota structured design-build contracts to encourage contractors to seek innovative solutions to avoid takings and utility impacts. Systems can be established to share costs savings with the contractor. Minnesota and Florida apply value engineering techniques in a pre-parcel meeting with design, right-of-way, and survey staff to assess the necessity of various design features.
The design-build approach has in many cases proven to be a successful method of accelerating project completion, allowing activities to overlap that otherwise would have been undertaken sequentially. The inherent time savings may under some circumstances include ROW acquisition and utility relocation activities, especially if it is not necessary for the state agency to acquire ROW before letting the design-build contract, and if construction activities can proceed on some parcels before other parcels have been acquired. Design-build projects have the ability to bring a large personnel force to the project for the time necessary to complete the project and consultants have been successful in both the advance planning and in the tracking and delivery of needed ROW. Cost savings also can result if contractors are provided with incentives to identify less costly solutions.
Some states also are finding public-private partnerships (PPP) to be an effective tool for expediting project delivery. PPPs bring private sector resources to bear not only to design and construct the project, but also to finance, operate, and maintain it. PPPs are being used especially to expedite projects in high-growth or high-demand locations where toll revenues have the potential to cover the costs of the project.
To take full advantage of the benefits of design-build and PPPs for ROW and utilities processes, particular attention is required to the following elements:
Identification and addressing of potential ROW and utilities issues, through environmental permitting and subsurface utilities engineering, prior to letting the design-build contract;
Contract provisions for risk management, in case additional unanticipated stumbling blocks are discovered;
Contract provisions and oversight procedures by the state and FHWA to ensure that property owners and utilities are treated and compensated fairly and in accordance with Federal and state regulations;
Communication channels and work flow processes to ensure timely review and approval of contractor or developer actions, including ROW parcel acquisition and utility relocation agreements, by state and Federal agencies; and
Data management and tracking systems to monitor the status of ROW acquisition and clearance.
In the course of the discussions, scan leaders asked for suggestions as to how FHWA could support states in their efforts to expedite ROW acquisition and utility relocation. Both Florida and Texas DOT staff noted that for the most part, efforts to expedite right-of-way acquisition and utility relocation were limited not by Federal regulations and policy, but rather by their departments' own internal creativity and actions. However, participants and hosts did suggest some additional ways in which FHWA might assist states, either through policy and regulatory changes, or through changes to how existing policies and regulations are implemented and interpreted at a national as well as state level.1 Some specific suggestions from Florida DOT staff included:
Provide states with additional freedom to use incentive offers and raise caps allowing a state Agent Price Estimate beyond $25,0002
Remove or raise other caps established under the Uniform Relocation Act
Provide states with additional freedom to experiment with other innovative practices as appropriate to their context, such as acquisition and relocation incentives
Defer to state-recognized bidding procedures if federally required low-bid procedures do not yield any responses for small jobs - for example, for utility jobs contracted by a city or county
Suggestions from Texas DOT staff included:
Allow greater flexibility in advancing construction on regular projects before all right-of-way has been acquired. This could be particularly appropriate for multiyear projects where the first phase of construction is completion of bridges. It also could benefit utility relocation as well as right-of-way acquisition;
Develop a Comprehensive Development Authority (design/build) and concession agreement policy for handling utility adjustments. Concession agreement projects have the potential to be large in scope for future transportation projects. Without a policy, the default approach is a traditional policy that is not designed for a compressed construction schedule.
Scan participants also suggested that FHWA and/or AASHTO might provide resources that include examples of state statutory and policy language. Examples of specific topics of interest include:
Authority to condemn and transfer land for utility relocation
Authority to reimburse for utilities based on schedule and provision of incentives or disincentives for utility relocation based on schedule adherence
Standard easements that can be used in place of fee acquisition
Early memoranda of understanding with utilities
The most significant benefits of improved ROW acquisition and utility relocation processes have included shorter project delivery time and/or lower costs. In Florida and Texas, benefits have been clearly demonstrated through projects that are being delivered on time and under budget. In Texas, in particular, the agency has been able to move the large-scale and high-profile SH 130 project rapidly, from letting of the design-build contract in 2002 to completion of initial segments in 2006.
In some cases, direct cost savings have resulted - for example, through Mn/DOT's value engineering activities that have reduced property impacts and utility relocation requirements. In other cases, procedures may appear to increase costs - for example, higher incentive payments to property owners, or reimbursement of utilities - but can result in lower costs in the long run due to shorter project development schedules, lower court fees, avoiding possibility of high eminent domain awards, etc. In design-build situations where the contractor is responsible for property acquisition, the contractor often has a direct financial incentive to meet or beat deadlines, and may be willing to acquire some critical properties at higher values in order to reduce acquisition delays. Shorter project development also results in earlier realization of significant public benefits such as reduced congestion and improved safety.
Agencies anecdotally report other benefits as well. For example, all three states reported that early involvement of stakeholders, especially property owners and utilities, has led to less animosity and better relationships with these stakeholders and with the public in general. Internally, staff enjoys the challenge of developing and implementing innovative practices and appreciate the team working environment.
1 The concepts presented in this section are simply a reporting of ideas mentioned by scan participants and hosts, and are not intended to serve as a policy recommendation. They are presented here without consideration of the feasibility or desirability of their implementation. In some cases, FHWA may already be undertaking or studying the value of the suggested actions. A recent FHWA report presents a set of recommendations for FHWA and state DOT actions, including technical assistance, training support, and changes to legislation, regulation, and policy. See: Federal Highway Administration (2006). FHWA Office of Real Estate Services Research Results: 2006 Future Needs of Public Sector Real Estate.
2 FHWA is working on a statewide program on incentive offers and authority has been delegated to state Division offices.