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Chapter 13


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Right-of-Way Certification Requirements

23 CFR § 635.309(b)
The right-of-way certification procedure for federally-assisted highway projects essentially identifies the acquisition status of necessary ROW for the purpose of advancing a project to construction, sometimes referred to as PS&E (Plans, specifications, and estimates). It also addresses the status of any required relocation activities necessary on the project. The specific requirements for this action are found at 23 CFR § 635.309 (b),(c). Because of the importance of this action, it is critical that the Contract Administration staff of your agency knows the exact status of the project at the time the construction contract is advertised and awarded. Key elements of this status report include:

  1. acquisition of ROW in accordance with laws and requirements (so prospective contracts will not be stopped by related litigation);

  2. relocation of people (so that the contractor may enter upon the properties);

  3. identification of encroachments and acquired structures within the ROW, and an explanation of who will remove them; and

  4. hazardous waste identification that may be present at the site, with information on contractor's responsibility for safe disposal.

The acquiring agency must be able to certify that all right-of-way is clear, that all residential occupants have been relocated to Decent, Safe and Sanitary housing, and that the right-of-way was acquired in accordance with applicable FHWA directives, and that the relocation assistance and payments rules were followed, if required.

Summary

Section 635.309(b) pertains specifically to the certification requirements for Federally-assisted highway projects, and requirements may be different for other Federal programs. Because of potential differences among Federal granting agencies, recipients should become familiar with the program requirements of their Federal funding agency.

13.1 FHWA PROJECT CERTIFICATION REQUIREMENTS

Prior to FHWA authorization to advertise for bids of physical construction, the acquiring agency shall prepare a statement that:

  • all ROW is clear, or if not, appropriate notification has been included in bid proposals of any work concurrent with highway construction;

  • all people relocated to Decent, Safe, and Sanitary housing, and one of the following applies:

    1. all needed ROW acquired, all occupants have moved; or

    2. not all needed ROW acquired, but right of entry obtained on all parcels, and all occupants have moved; or

    3. acquisition of ROW not complete, and occupants still on the project (rare exceptions only, and only if in the public interest!) - requires full explanation, notices in bid proposals, and special assurances about occupant protection.

  • advise that ROW acquired in accord with FHWA directives, and

  • advises that relocation assistance and payments rules followed, if required

Key Points

Prior to authorization to advertise bids for physical construction, the acquiring agency shall prepare a statement that:

  1. either all right-of-way clearance, utility and railroad work has been completed or that all necessary arrangements have been made for it to be undertaken and completed for proper coordination with the physical construction schedules. Where it is determined that the completion of such work is not feasible in advance of the highway construction, notification should be provided in the bid proposals identifying the work being completed concurrently with the highway construction.

  2. certifies that all individuals and families have been relocated to decent, safe, and sanitary housing or the agency has made available to displaced persons adequate replacement housing in accordance with the provisions of the current FHWA directives covering the administration of the Relocation Assistance Program (49 CFR Part 24) and that one of the following has application:
    1. All necessary rights-of-way, including legal and physical possession and control of access rights, have been acquired. Trial or appeal of cases may be pending in court, but legal possession has been obtained. There may be some improvements remaining on the right-of-way, but all occupants have vacated the lands and improvements.
    1. Although all necessary rights-of-way have not been fully acquired, the right to occupy and use all rights-of- way required for the project have been acquired. Trial or appeal of some parcels may be pending in court and on other parcels full legal possession has not been obtained, but right of entry has been obtained; the occupants of all the lands and improvements have vacated.

    2. The acquisition or right of occupancy and use of a few remaining parcels is not complete, but all occupants of the residences on such parcels have had replacement housing made available to them in accordance with title 49, Code of Federal Regulations, 24.204. The State may request authorization on this basis only in very unusual circumstances, and this exception must never become the rule. Under these circumstances, advertisement for bids or force-account work may be authorized if FHWA determined that it will be in the public interest. The physical construction may proceed, but the acquiring agency shall ensure that occupants of residences, businesses, farms, or non-profit organizations who have not yet moved from the right-of-way are protected against inconvenience, injury or any action coercive in nature. When the acquiring agency requests authorization to advertise for bids and to proceed with physical construction where acquisition or right of occupancy and use of a few parcels has not been obtained, full explanation and reasons therefor, including identification of each such parcel, will be set forth in the acquiring agency's request to proceed to construction. The request should include a realistic date when physical occupancy and use is anticipated. Appropriate notification shall be provided in the bid proposals identifying all locations where right of occupancy and use has not been obtained.

49 CFR 24.102 (j) specifically declares: "Before requiring the owner to surrender..the real property, the Agency shall pay the agreed purchase price to the owner, or..deposit with the court for the benefit of the owner, an amount not less than the approved appraisal of the fair market value of such property or the amount of the court award. In exceptional circumstances, with the prior approval of the owner, the Agency may obtain a right of entry for construction purposes before making payment available to an owner".

CAUTION!

 

In some instances, States and local public agencies may acquire land from owners with 100% State or local funds long before a Federal-aid project is fully developed, or for a project already completed. Such project acquisitions may not have been accomplished under Uniform Act procedures. When such property is incorporated into a Federal-aid project, the question may arise as to compliance with Uniform Act acquisition procedures. While each instance must be evaluated on its facts, generally Uniform Act procedures should be applied if a property is being acquired for a current or soon anticipated project. If the property was acquired earlier for an existing or proposed project, the Uniform Act may not be applicable. The key here is that there was no attempt to circumvent Uniform Act requirements and that the ROW can be certified for the current project. Again, check with your State DOT or FHWA Division Office for guidance.

Previously Owned Property

 
  1. advises that right-of-way has been acquired or will be acquired in accordance with the current FHWA directive(s) covering the acquisition of real property or that acquisition of right-of-way is not required.

  2. advises that the steps relative to relocation advisory assistance and payments as required by the current FHWA directive(s) covering the administration of the Highway Relocation Assistance Program have been taken or that they are not required.

The following examples are provided for your use in the developing letters and documents to comply with the above requirements. Figure 13-1 is a certification letter that can be modified, and Figure 13-2 is a sample record of parcel activities that may be modified to document compliance with Federal and State laws if other review documents are not mandated by State procedures.

(AGENCY LETTERHEAD)

(Date)

(Name)

Division Administrator

Federal Highway Administration

(Address)

Dear ___:

RIGHT-OF-WAY CERTIFICATE

STATEMENT: As required by 23 CFR Part 635, and other pertinent Federal regulations, right-of-way has been acquired in accordance with current FHWA directives covering the acquisition of real property.

I hereby certify that all necessary rights-of-way, including control of access rights [when pertinent], have been acquired including legal and physical possession.

All lands and improvements (if appropriate) are vacant, and the (AGENCY) has physical possession and the right to enter upon all lands.

I further certify that there were no individuals or families displaced by this project. Therefore, the provisions of current FHWA directives, including 49 CFR Part 24, covering the relocation of displaced persons to DS&S housing and availability of adequate replacement housing are not applicable to this project.

Or,

I further certify that there were ___ individuals or families displaced by the this project. The provisions of current FHWA directives, including 49 CFR Part 24, covering the relocation of displaced persons to DS&S housing and availability of adequate replacement housing were followed on this project.

There are no improvements (if appropriate) to be removed or demolished as a part of this project.

Dated at _________, this __________ day of ___________, 200_.

Sincerely,

Figure 13-1

 

PARCEL REVIEW REPORT

 

1. Project ____________ 2. Parcel No. ______________________

3. Authority to Appraise and Acquire (date) _____________________

4. Area of Take ______________ Sq. Ft. __________________ Acres

5. Is this an Uneconomic Remnant? ____ Outside R/W Limits? _______

6. Conveyance Document Free and Clear of Encumbrances? ________

7. Number. of Appraisals Made _______

8. Appraisers 9. Amount 10. Date 11. Certificate

Included

_______________$__________________________________

_______________$__________________________________

_______________$__________________________________

12. Reviewer's Determination 13. Date

$________________________ ____________________

$________________________ ____________________

14. Date Approved for Negotiations15. Negotiator

____________________________ _________________________

16. Did Appraiser or Review Appraiser Participate in Negotiations? ___

17. First Offer (date) ________________18.Amount $___________

Rev. Offer (date) __________________ $____________

19. FMV Letter (date) ______________20. Amount $__________

Revised______________ $____________

21. Reason for Change in Offer ___________________________

22. Administrative Determination Approved by _______ $________

Settlement (Date) ____________

23. Property vacated(Date)____________

24. Condemnation Settlement Concurred in by _________Date ____

Land and ImprovementsTotal InterestCosts and Attorney Fees $________________ $________ $__________________

25. Was Owner Offered Retention of Improvements? ______________

26. Total of Retention Values $______________________________

27. Date Approved _____________________________________

28. Date of Parcel Rodent Report ____________________________

29. Value of Acquired Improvements $_________________________

30. Retention Value of Retained Improvements $___________________

31. ATTACH PROPERTY IMPROVEMENT CONTROL REPORT

32. No. of Businesses ____________Type of Business ___________

33. No. of Families ___________

34. Total People Relocated __________

35. Relocation Assistance/Services Offered ______________________

36. TOTAL SETTLEMENT AMOUNT $_________________________

37. ADJUSTED FAIR MARKET VALUE $_________________________

38. Difference $_________________________________

39. Excess lands $_________________________________

40. I have reviewed the documentation for this acquisition and believe that costs are distributed correctly.

_________________________________________________________

Reviewer and Date

Figure 13-2

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