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Right-of-Way Program Administration

Accomplishments and Activities Report 2006

Federal Highway Administration (FHWA)
Office of Real Estate Services

October 2006

Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, SAFETEA-LU

On August 10, 2005, President Bush signed the reauthorization bill SAFETEA-LU into law. The bill authorizes $286.4 billion in transportation funding through FY 2009. The FHWA has posted summaries and fact sheets on the website http://www.fhwa.dot.gov/safetealu/index.htm.

Major Projects

On February 6, 2006, the Office of Real Estate Services issued major project guidance related to the right-of-way function, based on provisions in SAFETEA-LU. Major projects are now defined as projects over $500 million. This substantially increases the number of projects included in this category. The Division realty personnel provide oversight to assure that the right-of-way portion of the cost estimate is realistic.

Congestion Reduction

In 2006 the Secretary of Transportation announced a department-wide initiative to reduce congestion. The Office of Real Estate Services has three initiatives underway that contribute to this initiative.

  1. Right-of-Way Incentive Payments (Voluntary) for Acquisitions and Relocations: HEPR is working with Divisions to help States implement our recent guidance that provides flexibility for saving time on acquisitions and relocations for congestion-reducing projects.
  2. Right-of-Way Advance Acquisition: HEPR is developing guidance to help states carry out advance acquisition of right-of-way that will assist states to deliver congestion-reducing projects.
  3. Right-of-Way Support for Access Management: HEPR assists the Office of Operations (HOP) to provide techniques for congestion relief by decreasing conflict points and increasing the ease of through traffic. HEPR provides marketing for the 2006 access management (AM) primer and video that explains access management to business owners to win their support for AM congestion reduction projects.

Cost Estimating

The Office of Real Estate Services has partnered with the National Cooperative Highway Research Program (NCHRP) to co-sponsor a study called Right-of-Way Methods and Tools to Control Project Cost Escalation. This first phase study is reviewing current best practices specifically focusing on the right-of-way aspects of cost estimating. A larger NCHRP research project (8-49) is producing a guidebook on highway cost estimation management and project cost estimation procedures that aim for consistency and accuracy between long-range transportation planning, priority programming, and preconstruction cost estimates. This guidebook, expected soon, will provide strategies, methods, and tools to develop, track, and document realistic cost estimates.

The Office of Real Estate Services provided right-of-way materials to the Office of Infrastructure (HIF) to develop a 1-day course for the FHWA managers responsible for major projects. Cost estimating guidance for major projects is posted on the Office of Infrastructure website http://www.fhwa.dot.gov/ipd/project_delivery/.

Policy and Guidance for Acquisition and/or Relocation Incentive Program - Voluntary

The FHWA issued guidance, http://www.fhwa.dot.gov/real_estate/practitioners/uniform_act/policy_and_guidance/acqincentguid.cfm, on the use of incentive payments. Use of incentive payments is voluntary on the part of the State. Any State that decides to undertake such a program must develop a procedure according to the guidance that will be issued and have the procedure approved by the FHWA to assure Federal participation. The initiative to pilot incentives and develop incentive program guidance was a direct result of the 2000 European Right-of-Way and Utilities Best Practices Scan.

Guidance on Eminent Domain Provision of Department of Transportation Appropriations Act, 2006

The Office of Real Estate Services developed and issued guidance on February 24, 2006, pertaining to Section 726 of the 2006 transportation appropriation act, P.L. 109-115, div A. This provision prohibits use of FY 2006 Federal funds on projects that use eminent domain, unless the eminent domain is for a public use. The guidance states that transportation projects serve a public use and should, in most cases, be exempt from this provision. Ensuring compliance with the prohibitions of Section 726 is the responsibility of each Division office. The Division office shall ensure that programs and projects receiving FY 2006 Federal financial assistance are in compliance, using methods appropriate to ensure compliance, such as, reviewing the project concept in planning, reviewing the purpose and needs statement in NEPA, or reviewing the application for funding.

Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended (Uniform Act)

Potential Uniform Act Statutory Update

The FHWA has completed several activities to determine the need for and the feasibility of updating the Uniform Act. Activities included nationwide listening sessions involving our State partners and others on needed changes and our national business relocation study. The FHWA convened a Federal interagency working group to review, analyze and consolidate requested changes, and develop a suggested Uniform Act statutory update. We are preparing a legislative proposal of suggested updates to send to the Offices of the Secretary of Transportation and Management and Budget.

Revised Uniform Act Regulation

The revised regulation, 49 CFR Part 24, was published on January 4, 2005 and became effective February 3, 2005. The regulation was finalized with the involvement of other Federal agencies after an extensive outreach effort that included our State partners. We completed several training activities including a national webcast and training sessions around the country. A self-paced tutorial based on the regulation is available on our website. A magazine article entitled Implementing the Uniform Act Regulation was published in the May/June 2005 edition of IRWA's Right of Way magazine. A self-paced real estate acquisition tutorial CD, for use by local public agencies for acquisitions under the Uniform Act, was distributed. The CD is not copy protected so additional copies can be made as needed. A new set of frequently asked questions (FAQs) can be found at http://www.fhwa.dot.gov/real_estate/practitioners/uniform_act/policy_and_guidance/uafaqs.cfm. The FHWA acquisition and relocation brochures are available at www.fhwa.dot.gov/real_estate/publications/.

Uniform Act Eligibility in Areas Impacted by Hurricane Katrina

On October 6, 2005, guidance was issued to Mississippi and Louisiana to address Uniform Act eligibility. The guidance provided clarification indicating that in accordance with the Stafford Act provision and 49 CFR, an occupant may not be denied relocation benefits because of the requirement that the occupant be on the property in order to qualify for relocation benefits. The guidance discusses related 49 CFR and Stafford Act provisions. The guidance is posted at http://www.fhwa.dot.gov/real_estate/practitioners/uniform_act/policy_and_guidance/katrinaguid.cfm.

Appraisal Scope of Work

The FHWA guide for preparing an appraisal scope of work can be found at http://www.fhwa.dot.gov/real_estate/practitioners/uniform_act/property_valuation/sow4.cfm.

Relocation Cost Schedule

The fixed payment for residential moving expenses was published in the Federal Register on May 16, 2005. It took effect June 15, 2005. The schedule provides an alternative for displaced persons who do not choose to be paid moving and related expenses based on actual costs incurred. It is located at http://www.fhwa.dot.gov/real_estate/practitioners/uniform_act/policy_and_guidance/fixsch96.cfm.

Public-Private Partnerships

The Office of Real Estate Services has reviewed several public-private partnership (PPP) proposals for Uniform Act and Title 23 right-of-way components. Private parties often perceive Uniform Act requirements as onerous. Through education, we can develop a satisfactory solution for all. Partners must establish a process that includes right-of-way accountability, integrity, and transparency, where roles, responsibilities, risks, and rewards are clearly defined and understood, with due diligence to ensure compliance with contract conditions and requirements. The FHWA initiatives to promote and facilitate the use of PPPs on transportation projects are:

Special Experimental Program No. 15 (SEP-15). The SEP-15 permits experimentation in the project development process, and is specifically aimed at attracting private investment. The lessons learned from SEP-15 will aid the FHWA in developing more effective approaches to project planning, development, design, finance, construction, maintenance, and operations.

PPP Website. The PPP website, www.fhwa.dot.gov/ipd/p3/, provides resource information for States interested in using PPPs. It includes case studies, as well as information on various State enabling legislation and contract documents. A report issued in June 2005 is available on the PPP website.

Program Delivery Improvement Tool (PDIT)

The FHWA with input from the American Association of State Highway and Transportation Officials (AASHTO) is developing a tool to assess the FHWA/AASHTO delivery process. The Program Delivery Assessment Tool is envisioned to cover major project areas, including right-of-way and outdoor advertising control.

Federal-aid Policy Guide (FAPG)

The FHWA Federal-aid Policy Guide is at http://www.fhwa.dot.gov/hep/guidance/#t49. This
non-regulatory supplement reflects the 2005 changes to the Uniform Act regulation,
49 CFR Part 24.

Excellence in Right-of-Way Awards

The 2006 Excellence in Right-of-Way Awards categories were leadership, innovation, stewardship, technical specialties including outdoor advertising control, streamlining and integration. Awards were presented on May 1, 2006, at the AASHTO/FHWA annual right-of-way and utilities meeting in Baltimore, Maryland.
The award program is designed to recognize outstanding innovations that enhance the right-of-way professional's ability to meet the challenges associated with acquiring real property for a Federal-aid project. It is a biennial award program that provides a way to honor those that excel in streamlining or improving the real property acquisition process while ensuring that the rights of property owners and tenants are protected. A write-up for each 2006 winner is on our website:

Excellence in Right-of-Way Stewardship Award
Minnesota Department of Transportation

Excellence in Right-of-Way Innovation Award
Utah Department of Transportation

Excellence in Right-of-Way Leadership Award
Robert Macpherson (California Department of Transportation)
Mickie McJunkin (Georgia Department of Transportation)

Excellence in Right-of-Way Streamlining and Integration Award
Florida Department of Transportation

Honorable Mention
Arizona Department of Transportation

Excellence in Right-of-Way Technical Specialties Award
Woodrow Wilson Bridge Project

Honorable Mention
South Carolina Department of Transportation

Excellence in Right-of-Way Award Judges

HEP Award to Honor Efforts to Improve the Human Environment

Please look for information later this year on this new award for 2007. The focus will be on people, including efforts made by realty personnel, to develop projects that are more sensitive to the community.

2006 AASHTO Domestic Scan

A right-of-way acquisition and utilities relocation scan to Austin, Texas; Minneapolis, Minnesota; and, Orlando, Florida was completed the week of July 10, 2006. Scan participants discussed best practices and lessons learned, including excellent teamwork examples. Participants were able to view first hand right-of-way acquisition underway for an arterial widening, and several project related complications, such as encroachments and environmentally required drainage ponds. The scan included innovative approaches to partnering with developers and a discussion of the Texas future toll road partnership. On site visits included projects under construction. It offered participants a chance to see right-of-way problems solved and to experience cooperation with local government agencies. In Minnesota, the focus was on utilities and electronic project tracking.

The scan participants found shared common traits that contributed to the success of the programs of three state agencies scanned. These included commitment to creating a supportive institutional environment; focus on process; investment in technical tools; and, willingness to make use of other incentives and techniques as appropriate. Scan participants included nine officials from states, as well as two FHWA Division Administrators and two FHWA Headquarters staff. Each participant is involved in outreach and follow-up implementation of best practices identified and sharing lessons learned. A scan Power Point presentation is being developed. The group recommended that right-of-way and utility participants be invited to future AASHTO scans, even though the topic may not seem to be directly related.

2004 and 2005 HEPR Domestic Scans

Our Outdoor Advertising Control (OAC) scan was held in July 2005. Our scan report CD for 2005 scans is available. Our scan to review best practices for Stewardship of Local Agency Right-of-Way Programs was held in September 2005. Our Advanced Acquisition scan was held in Virginia in September 2005. Florida hosted our scan in 2004 to find current use of Geographical Information Systems (GIS) in Right-of-Way Programs. Recent software development and improved accuracy of GIS makes this technology more usable for right-of-way offices. Another CD is available that contains the results of the GIS scan. The results of our four scans have been posted at http://www.fhwa.dot.gov/real_estate/practitioners/right-of-way/program_administration/scans/.

In 2004, Texas DOT hosted our scan to review appraisal requirements and kick off the pooled fund study called Electronic Appraisal Development. The research team has collected all appraisal forms and developed a conceptual framework for an electronic appraisal system.

Outdoor Advertising Control Language Guide

An Outdoor Advertising Control Language Guide is now posted on the Office of Real Estate Services website at http://www.fhwa.dot.gov/real_estate/practitioners/oac/policy_and_guidance/oacguide.cfm. It is provided to increase understanding of the outdoor advertising control program.

Airspace Lease, Bridge and Tunnel Security

On March 22 and 23, 2006, we held teleconferences to discuss right-of-way security issues with Division realty professionals. Items covered included:

  1. High priority right-of-way related highway facility security issues.
  2. Gaps or needs related to right-of-way security guidance, information and resources.
  3. Experience or best practice examples related to right-of-way security.

Right-of-Way Environmental Cleanup Resources

The Office of Real Estate Services, in conjunction with the Office of Natural & Human Environment and the Environmental Protection Agency (EPA), is compiling information on right-of-way environmental cleanup. A right-of-way environmental cleanup resource and best practice directory will be developed. Topics include: dealing with Brownfields within proposed construction areas; Brownfield certification; and related issues. This will assist States to respond to the November 2005 EPA "All Appropriate Inquiry" regulation. EPA's regulation requires additional inquiry during the Phase I environmental assessment. This may impact the time required to acquire affected properties. Information can be found at http://www.epa.gov/swerosps/bf/ and /environment/brownfields/ or by contacting Patricia Overmeyer at EPA, overmeyer.patricia@epa.gov (202-566-2774).

Accelerated Construction Technology Transfer (ACTT) Workshops

The Office of Real Estate Services assists in ACTT workshops facilitated by the Office of Infrastructure. The right-of-way and utility experts participate in workshops prepared by the host state. The New Hampshire, Ohio and North Carolina workshops held in 2006 involved right-of-way and utility national experts. ACTT workshops are designed to evaluate all facets of a highway project to optimize cost-effectiveness, timeliness, and safety, while minimizing adverse impacts. Results can be found at http://www.fhwa.dot.gov/construction/accelerated/.

Research

Section 5207 of SAFETEA-LU established a new cooperative research program for environment and planning research (STEP) in Section 507 of Title 23, United States Code, (23 U.S.C. 507). The general objective of STEP is to improve understanding of the complex relationship between surface transportation, planning and the environment. This program is the only opportunity for future Federal funding for realty related research. A Federal Register notice dated August 4, 2006, solicited comments on proposed STEP strategies found at http://www.fhwa.dot.gov/hep/step/about_step/strategy/index.cfm#v. This is the proposed strategy for Outdoor Advertising Control/Realty Program Management ($200,000 in FY2007):

The goals of this emphasis area are to: (1) provide improved tools to State DOTs and LPAs for the performance of their responsibilities in real estate and in outdoor advertising control (OAC); (2) develop improved methods for, and support the institutional capacity of State and LPA personnel to, perform real estate acquisitions, relocations and property management activities for public projects subject to the Uniform Relocation and Real Property Acquisition Policies Act of 1970 (42 USC 4601); (3) develop mechanisms to ensure the quality of real estate and OAC technical analysis used to support decision making and to meet local, state, and Federal program requirements; (4) support the linkage of transportation planning and other topic areas; and (5) provide data to support the transportation planning process.

Potential research activities in support of this emphasis area include: assessing and developing improved tools, techniques, and procedures for real estate and OAC; identifying and assessing results of policies and guidance for realty acquisition and relocation; developing innovative information-sharing methods among practitioners, including identifying and communicating new and best practices and research results; maintaining communities of practice and a website for real estate and OAC; developing training and technical assistance; identifying analytical needs. Cost-sharing with States and other agencies will be sought to maximize the funding available for these activities.

For questions regarding STEP funding contact Felicia Young, Office of Interstate and Border Planning, (202) 366-1263, felicia.young@fhwa.dot.gov.

Turbo Relocation

We conducted research that determined the need for software products for calculating relocation benefits, similar to the way Turbo Tax® helps users complete tax forms. Development of Turbo Relocation is being considered by AASHTO and interested States to develop software to be shared.

Future Needs of Public Sector Real Estate

The Office of Real Estate Services completed a research effort, Future Needs of Public Sector Real Estate, to enable the FHWA, other Federal agencies performing real estate acquisition and their non-Federal partners to make strategic decisions about resources so that public sector real estate work in the future is accomplished as effectively and efficiently as possible.

Three consultants, using different approaches, completed research aimed at identifying and exploring trends and changes in public sector real estate from 2006 to 2035. They identified a short list of critical policies, procedures, tools, technologies and best practices for providing public sector real estate services:

The three reports can be found at http://www.fhwa.dot.gov/real_estate/publications/#research. If you are interested in becoming a champion for one of the items listed, please contact Kathy Facer, kathleen.facer@fhwa.dot.gov.

Acquisition of Easements over Native American Lands for Transportation Projects

This research identifies challenges associated with the timely acquisition of rights-of-way from Native American entities, and identifies practices used by several State DOTs to effectively address these challenges. The results will aide the Office of Real Estate Services to develop guidance for the State DOTs and the FHWA Division offices. The expected outcome is more effective and timely clearance of rights-of-way over Native American lands.

Outdoor Advertising Control Stakeholders Assessment

The FHWA initiated an Outdoor Advertising Control (OAC) Stakeholders Assessment. The goal of the assessment is to reach out, through a neutral party, to all OAC stakeholders to identify issues in controversy, the affected interests, and appropriate forms of handling conflict. The FHWA executed an interagency agreement with the U.S. Institute for Environmental Conflict Resolution to conduct this effort. The Institute has contracted with the Osprey Group to perform the Stakeholders Assessment. The Assessment began in August 2006. Telephone interviews, focus group meetings and public input sessions were or/are being held in Sacramento, Cleveland, Atlanta, Kansas City, Salt Lake City, Austin and Philadelphia. A summary of findings and set of recommendations on appropriate forms of handling conflict will be developed. This could lead to the initiation of a collaborative process for improving the regulatory environment and resolving much of the conflict. The assessment and recommendations are anticipated at the end of 2006.

Uniform Act Frequently Asked Questions and Mortgage Interest Differential (MIDP)

This research was used to update the Uniform Act FAQs on the Office of Real Estate Services website. The research explored ways to handle many mortgage types, including interest only loans, reverse mortgages and hybrid loans. Mortgage interest differential guidance is being developed based on the research results.

Integrating Geo-Spatial Technologies into the Right-of-Way Data Management Process

At the Washington State DOT's request, a Phase I synthesis study, NCHRP 8-55, is underway to determine current levels of GIS integration with large right-of-way databases. The contractor has surveyed several State DOTs for information and is preparing case studies. Funding has been approved for Phase II of the study.

NCHRP Synthesis Report 351 on Access Rights

The State DOTs recognize the benefits of acquiring property rights to control access on important arterial highways for the purpose of preserving safety and mobility. The property right of access to the abutting highway can be acquired through methods such as negotiation, purchase, the power of eminent domain, or statutory designation. The NCHRP synthesis report 351 on access rights is now available. It is a state-of-the-practice summary of how States acquire access rights along roadways other than interstate. Over thirty (30) State DOTs responded to the survey. Current issues relating to valuation, eminent domain and police power are discussed in the report. Case studies for Montana, Ohio and Oregon are included. Ten (10) hard copy reports were sent to each DOT in December; 1 hard copy went to each Division. The report is available for free on the access management website at http://www.accessmanagement.info. A Guidebook for Including Access Management in Transportation Planning, NCHRP 548, is available on that website.

Effectiveness and Impacts of Appraisal Waivers

This study will evaluate if appraisal waivers are accomplishing the intended goals of minimizing administrative costs and expediting the acquisition of real property. The study will determine potential associated consequences of the use of the appraisal waiver.

Electronic Appraisal System

The multi-state sponsored pooled fund study has completed research on electronic transmission and storage related documents. The research team collected appraisal forms from several DOTs to develop the framework for an electronic appraisal system. The end product is a too for appraisers, in order to facilitate the preparation, review and sharing of appraisals.

Right-of-Way Education Barriers

This study identified and evaluated barriers to the effective use of existing right-of-way training courses by Federal and State right-of-way personnel. The analysis is based on the results of contacts with State right-of-way managers, Division realty officers, and selected training providers, such as the National Highway Institute (NHI), the International Right-of-Way Association (IRWA), and the Appraisal Institute. The final report recommended:

Synthesis and Analysis of Interagency Real Estate Agreements

This study compiled information to foster interagency cooperation and collaboration in the transportation decision-making process regarding real estate. Workshops were held for Federal agencies to discuss interagency agreements and best practices related to Federal land transfers. This study analyzed a system of checks and balances in providing land necessary for transportation purposes. The study results are available at http://www.fhwa.dot.gov/real_estate/practitioners/uniform_act/acquisition/interagency/. We have developed a Federal land transfer forum on the Real Estate Exchange Community of Practice at https://www.transportationresearch.gov/dot/fhwa/rex/default.aspx. The forum includes a reference section for sample agreements. Additional pertinent Federal land transfer information and links will be added in the future.

Uniform Act Training, Certification Needs, and Implementation Program

This study points out the need for a right-of-way professional certificate program recognizing the specialized abilities required to implement the Uniform Act. A right-of-way professional certification has the potential for a positive impact upon the FHWA and other government agencies that provide services under the Uniform Act and the regulation, 49 CFR Part 24. With IRWA, we are pursuing a viable mechanism for a certification process with major stakeholder involvement.

Web-Based Annual Acquisition and Relocation Statistics

Our effort to put the annual right-of-way acquisition and relocation statistics database into an on-line report format is complete. The annual statistics web page replaces the paper delivery and manual compilation of State right-of-way real property expenditures. Information can be found at http://www.fhwa.dot.gov/real_estate/practitioners/uniform_act/stats/index.cfm

Right-of-Way Access Permit Software

Our Small Business Innovative Research project by Sim-Wright, Inc., used photogrammetric stereo images to assist access control managers with driveway and land use permits is complete. The software is commercially available from the contractor.

Pilots

Updated pilot information can be found at http://www.fhwa.dot.gov/real_estate/practitioners/right-of-way/utility_rights-of-way/pilotsum04.cfm.

Training

FHWA Courses

Undergraduate Real Estate Curriculum

Real estate acquisition courses for public projects were developed by the Community College of Baltimore County, CCBC. These classroom courses are 15 hours each and are certified for appraisal continuing education credit. They are taught at the Hunt Valley campus in Maryland. For CCBC information contact Lynette Higgins at 410-780-6716 or http://www.ccbcmd.edu/ceed/spring/business_re.html.

Professional Development Program (PDP)

Our right-of-way training PDP participants are Tammy Keeley, Washington Division; Yolanda Jordan, Ohio Division; Victor Otero, Arizona Division; Christian Christoffers, Alabama Division; and Dana Curtis, Oregon Division. The PDP participants complete a two-year training program, rotating through Headquarters, State, and Division Offices to acquire needed skills. Recruitment is open periodically for applicants. For information contact Serena Matthews at 202-366-1201.

For Office of Real Estate Service program information, products, and publications please visit www.fhwa.dot.gov/real_estate/.

Updated: 04/02/2013
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