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Chapter 1 Contents | Chapter 2
The text for this guide was developed as a reference for those responsible for the assignment of completing the acquisition of right-of-way for a project. Information is generally arranged in a sequenced order based on the typical project development process, a subordinate format within the context presents data in the following order: Federal laws; regulations; policies; procedures; and implementation through policy interpretations, discussion of best practices and case studies. This guide was prepared in the interest of improving program delivery and efficiency in the development of right-of-way projects particularly those on the Federal-aid system. This guide also reflects the need expressed by State and local governments interested in better understanding the Federal-aid right-of-way project development process as it relates to their operations. Additionally, program complexities, changes in law, regulations, and policy prompted us to provide additional guidance on the expanding right-of-way project development process. The Federal Highway Administration has developed and provided much guidance on right-of-way project development. This document was prepared in an attempt to assimilate available guidance in a single location. We intend to keep the guide current through periodic re-issues and supplements. This guide is further intended to expand the knowledge and understanding of the linkage between Federal-aid highway programs and procedures and the development of a right-of-way project. In order to convey this intent the objectives of this guide are basically five-fold:
The user must keep in mind that his/her fundamental responsibility requires that the State laws and regulatory requirement must be met. This guide is not intended to alter this responsibility and/or priority. 1.1. FEDERAL/STATE RELATIONSHIP The Federal Highway Administration's relationship with State and local acquiring agencies operating under the Federal-aid Highway Program has historically been a a very close working relationship. As such there are responsibilities on the part of all sectors to foster good public relations while striving to adhere to the ultimate goal of building highways. The operation of the right-of-way program from the Federal perspective includes the maximum delegation of authority to our field offices and the States. This level of authority offers the greatest possible innovation and flexibility to administer the right-of-way program in today's world. In this regard, the State Right-of-Way Operational Manual is an important device. In the Federal regulations, "agency" is considered to be any governmental agency which acquires property. Under Section 302 of Title 23, United States Code (a compilation of all Federal highway acts), the State transportation department is responsible for all Federal-aid highway projects under the Federal-State relationship, including those projects administered at the county or city level. The State transportation department is the authority responsible for establishing appraisal, acquisition, relocation program and other requirements for Federal-aid highway projects. From the FHWA perspective, cities or counties have the option of accepting the STDs procedures or submitting their own to the State for approval if they desire to deviate from the State's accepted procedures unless state law or administrative policy requires otherwise. How this is done is a State-Local Public Agency (LPA) matter outside of the purview of the FHWA (except in an advisory capacity) although the FHWA is very interested in the State and LPA agreeing on an acceptable procedure for acquisition on Federal-aid projects. The FHWA deals with the STD to ensure that Federal requirements are met at the local level. However, the LPAs regulations must conform to Federal requirements even if they deviate from state regulations.
Since the enactment of the Federal Uniform Relocation Assistance and Real Property Policies Act of 1970 (Uniform Act) and passage of the various State consent laws, basic public acquisition policy has become more uniform. However, a number of States have enacted laws and regulations that go beyond Federal law which provide property owners entitlements not considered generally compensable under Federal law. Because of the variations in the eminent domain laws among the States, it is extremely important that individuals dealing with public acquisition of private property be intimately familiar with the applicable State laws and implementing regulations.
1.2. PROJECT DEVELOPMENT PROCESS The project development process can be divided into five process categories or work activities. The following outline is provided to assist in conceptualizing the process that takes place during a right-of-way project for the acquisition of private properties for public purposes. A. Planning
B. Appraisals
C. Acquisition
D. Relocation Process
E. Property Management
1.3. SUMMARY OF THE ACQUISITION PROCESS One of the fundamental precepts of acquiring private property for public purposes is that an owner of private property must be paid just compensation as required by the Constitution of the United States. The fifth amendment of the Constitution provides that private property may not be taken for public purposes without the payment of just compensation.
The Uniform Act further defines what an acquiring agency must do to assure that property owners are receiving their constitutionally mandated reimbursement. Noncompliance with Federal law can result in ineligibility for reimbursement of project cost. The Uniform Act contains three titles:
Acquiring agencies are also subject to the laws and requirements of their State as well as any applicable local ordinances. State and local requirements must be followed but are not included within this guide. Consult with your State program representative for specific guidance. 1.4. SENSITIVE RIGHT-OF-WAY ISSUES
Public accountability begins with the individual responsibilities of the right-of-way agent and how he or she carries out those responsibilities on the job. Right-of-way agents must be particularly sensitive to the consequences of conflict of interest laws and procedures in their state. The risks are so great and the penalties so severe that any gains attained through conflict of interest are hardly worth it. Right-of-way agents and their agencies must be on constant guard against even the slightest perception that their activities could be challenged under conflict of interest. The fact that the perception of wrongdoing is often as detrimental as a clear infraction must be recognized and remembered as being of particular importance in right-of-way issues. The basic right-of-way program regulations are contained in 23 CFR 710 the regulations were published on December 21, 1999 and became effective on January 20, 2000. |
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