User:Hoskir/Revision Request 4269
136.8.1 General
136.8.1.1 Introduction
The acquisition of private property needed in connection with all Federally funded projects is governed by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (commonly referred to as the Uniform Act) and requirements of state laws as well as any applicable local ordinances. The implementing regulations for the Uniform Act are found in 49 Code of Federal Regulations (CFR) Part 24 and 23 CFR Part 710. The Missouri Department of Transportation (MoDOT) Central Office Right of Way (ROW) (COROW@modot.mo.gov) can provide copies of the appropriate codes and regulations, upon request.
Federal funding of any phase of a project necessitates that federal requirements be met in all other phases of the project, as well as the acquisition of property and relocation activities to clear the ROW for construction. Noncompliance with federal law can result in ineligibility for reimbursement for project costs in design, land acquisition, or construction.
Such projects might include roads, bike/walking paths, block grants, and enhancements, etc. Guidelines and requirements for the acquisition of land for airports and airport expansion projects, are set out in an Aviation land acquisition manual, available from the Multimodal Operations Division of MoDOT.
Local Public Agencies (LPAs) that must comply with the provisions contained in this article are cities, counties, and any agency acquiring private property or property rights, who have not developed their own manuals or guidelines for the acquisition of private property or property rights. Manuals and procedural guidelines developed by an LPA require the approval of the Federal Highway Administration.
This article is designed to assist LPAs in complying with applicable federal and state requirements. It is intended for use on small or uncomplicated projects where most of the needed property may be donated, damages to remaining property are minor and no one will be displaced from their homes, farms or businesses.
If a project has more complex acquisitions than described above or requires the relocation of property owners or personal property, contact MoDOT Central Office ROW for other applicable instructions.
136.8.1.2 State Responsibility
MoDOT has the responsibility to ensure that all realty rights needed in connection with a Federal-aid project are acquired in accordance with the Uniform Relocation Act. As outlined in the program agreement between MoDOT and the LPA, MoDOT will monitor LPA acquisition staff and fee services in the acquisition of realty rights.
The person identified as the LPA ROW Negotiator is required to complete the LPA ROW Negotiator training and must be listed on the LPA Basic Training and ROW Negotiator Roster. The duration of the approval on the LPA Basic Training and ROW Negotiator Roster is two years.
If an LPA is not adequately staffed to perform these services or has not completed the LPA ROW Negotiator training within the last two years, the use of fee services in the acquisition process is permitted. The fee negotiator will also be required to complete the LPA ROW Negotiator training and be listed on the LPA Basic Training and ROW Negotiator Roster. Use of fee services for land acquisition activities is covered in EPG 136.8.11. Additionally, appraisers and review appraisers must be listed on the approved appraisal roster when reports require value finding and standard appraisal formats per EPG 136.8.6.1.3 Staff and Fee Appraisal Review Activity and Personnel Approval by MoDOT.
MoDOT will monitor real property acquisition and relocation assistance activities conducted by, or on the behalf of, an LPA to determine that these activities are conducted in accordance with provisions of state and federal laws and directives.
136.8.1.3 Local Public Agency’s Responsibility
The LPA is responsible for acquisition of all necessary property to permit project construction. This includes right of way, permanent easements (i.e. slopes, drainage, etc.), temporary easements (i.e. construction, borrow, etc.), licenses (i.e. rights of entry, work permits, grade separation agreements, etc.) or any other agreements for the entering on or use of land or property rights for construction purposes.
The LPA must comply with all applicable requirements if federal funds are used in any phase of the project.
A. Nondiscrimination
LPAs shall comply with all state and federal statutes relating to nondiscrimination, including but not limited to Title VI and Title VII of the Civil Rights Act of 1964, as amended (42 USC 2000 d, e), as well as any applicable titles of the Americans with Disabilities Act (ADA). LPAs shall not discriminate on grounds of the race, color, religion, creed, sex, disability, national origin, age or ancestry of any individual.
LPAs are reminded that it is their responsibility to report payments to owners for real estate purchases to the Internal Revenue Service. Specific instructions on reporting requirements are found in the IRS instructions for 1099 forms. Certain penalties for not reporting may be encountered.
Typically, closing agents are required to do the 1099 reporting for all transactions over $600. The LPA would be responsible for this reporting if no closing agent is used, or if compensation is paid through the court system.
136.8.1.4 MoDOT Right of Way Procedures
MoDOT has developed EPG 236 Right of Way that governs its activities relating to right of way acquisition. These procedures define functions, operational procedures and guidance necessary to be eligible for federal funds participation in right of way. Local agencies will be required to follow MoDOT procedures or those contained in this article, unless the agency develops their own written policies and procedures for compliance with the Uniform Act and the Code of Federal Regulations 49 CFR Part 24. In condemnation, the agency must also fulfill the requirements of RSMo 523. These written policies and procedures would be subject to review and acceptance by MoDOT and Federal Highway Administration (FHWA) prior to utilization on a Federal-aid project.
136.8.1.5 Local Public Agency Right of Way Acquisition Brochure
An LPA Right of Way Acquisition Brochure specifically designed for LPA use is available in preprinted form through MoDOT district offices. The right of way acquisition brochure should be made available to all affected property owners on a project at the earliest opportunity (at public hearings, during engineering surveys, first contacts for acquisition of property) to indicate the agency's interest in acquiring the real property and to advise the owner of the acquisition process, and basic protection under the law. The brochure satisfies certain requirements when public hearings are necessary, as well as notification requirements before or upon initiation of negotiations with owners.
LPAs may develop and use their own brochures with prior MoDOT approval.
A brochure identifying relocation assistance eligibility and benefits is also available from the MoDOT district office for those parties or businesses that are displaced or must move personal property from the proposed right of way. Contact your district RW office for the most recent relocation assistance brochures available for residential and business displacements.
136.8.1.6 Local Public Agency - Right of Way and Easement Acquisition
General Summary of the Right of Way Process
The Local Public Agency (LPA) has been awarded a federal-aid project on the Transportation Implementation Program (TIP). The Reasonable Progress Policy and the schedule set by the LPA fixes time lines to be met. With right of way acquisition involved in your project, you must plan to continue the design and acquire right of way simultaneously. Coordination and planning is key to the success of the LPA. To this end, MoDOT has prepared a simple flow chart to help you visualize and plan the acquisition process for your LPA project.
The goal is to acquire right of way AND certify it clear; at the same time the final Plans Specifications and Estimates (PSE) package is approved. Ultimately, the final PSE should not obstruct the completion of the RW clearance, and the RW clearance should not delay the Final PSE.
These instructions should be used as a map to identify where you are in the RW Process and what to do next. Like many maps, it will not tell you how long it takes, but simply how to get there. How long it will take is up to the project sponsor and the designer. Dealing with private property owners can be dynamic and complicated, but is not out of your control. The more time you can allow for this phase, the more likely you are to meet your schedule for construction.
Square 1 The RW Process actually begins during the Preliminary Design Plans (PDP) stage. The approvals you must obtain during PDP directly affect your ability to begin RW Acquisition. Check with your District Design Liaison (DDL) on the status of the environmental and historic clearances. Among other requirements, the environmental categorical exclusion approval must be obtained before the PDP can be approved.
Some projects will receive a programmatic categorical exclusion for the environmental clearance and a CE-2 submittal will not be required. All projects will still require a Section 106 Historic clearance. A Section 106 form should be sent to the Missouri Department of Natural Resources (MoDNR) to be reviewed as soon as possible in order to keep the process moving. When the CE-2 has been received and the Section 106 has been applied for you may move to the next step.
Square 2
The PDP must be approved prior to submitting RW Plans for approval. This is because the FHWA intends to ensure the alignment will not change before participating in RW or Construction costs. When your Preliminary Design plans are approved, please move ahead.
Squares 3 and 4
Submit RW Plans to MoDOT for review, if there are comments made, revise them and move to the next square. If no comments are made and the RW Plans are approved, skip the next square and move directly to Square 5, RW Plans Approved.
With no time to waste, move ahead to Square 6; review the most recent RW Cost Estimate for accuracy, age and any new developments with regard to property owners, land sales or new construction. Now is the time to update this cost estimate to ensure you have an accurate number. For a list of eligible and reimbursable RW costs, contact your MoDOT district RW office. Now move to the next square.
Square 7
Now that your reasonably sure how much it will cost, the LPA must determine who will acquire the RW and how it will be paid for. Either one has a direct effect on the other and will decide which path your local agency will take.
Square 8A
Local: If the LPA is staffed to acquire RW, AND the cost is within the local funds held by the LPA for this project, then it may be prudent to use the Local slide to skip the next two squares. Warning, all RW costs will be paid for by the LPA and ONLY the LPA will be accountable for adherence to the requirements of state laws and the CFR Titles 23 and 49, including the Uniform Act.
Square 8B
FHWA: If on the other hand, the local funding is insufficient for the RW Cost estimated, OR the agency is not staffed to acquire RW, it is strongly recommended the LPA use the FHWA path to hire a RW Agent or Firm from MoDOT’s approved list.
Squares 9 and 10
These may include appraisers, negotiators, lawyers, mediators or any firm, which handles all types of right of way services. This path also includes obligating federal funding for the eventual reimbursement of a large percentage of these RW Costs. The LPA and the RW Consultant will both be accountable for adherence to the requirements of state laws and the CFR Titles 23 and 49, including the Uniform Act.
Square 11
The Environmental CE-2 approval was obtained before PDP. Make a copy and hold it until Square 13. Move ahead one square.
Square 12
The Section 106 Historic Register approval / clearance should be available by this time. If you have approval letter, make a copy and hold until you move ahead one space.
Square 13
Fill out the Acquisition Authority Request (Form 136.8.1). If you have taken the path of FHWA, use the A-Date Request form to have MoDOT review and forward it to FHWA and obligate federal funds for RW Acquisition. Move ahead and wait.
Square 14
If you are following the path marked Local, complete the “Request for Right of Way Acquisition Authority (A-Date) Notice to Proceed” and check the box “Local Public Agency will fund all RW activities…”, your MoDOT - District office will grant your approval to begin RW Acquisition without the use of federal funds in RW. You will be notified when you may begin acquisition. If you check the box “Local Public Agency is requesting Federal Participation in funding RW activities, then you must wait for FHWA to obligate those federal funds.
The only thing you should have done at this point with regard to RW Acquisition is title work, RW plans, cost estimates and complete the Right of Way Scheduling Tool. These are all eligible for reimbursement under Preliminary Engineering (PE). You may also send a letter to all affected property owners, to advise them of their rights according to the Eminent Domain Law, RsMO 523.000.
Square 15
You will get an email, phone call or a letter telling you the federal funds are now approved, and you may begin the acquisition of RW and Easements for your project. You have just made it over hurdle number two. Congratulations, now it gets tougher.
Squares 16A and 17A
If your project is not complicated, you may want to request donation from the owners. Move to the next square. If the owners sign those donation documents, and deeds conveying the easements you need, make sure the owners also sign the waiver of compensation letter. This is a federal regulation to ensure they were informed of their rights to compensation for any type of acquisition on their property. Once you have all of them signed, move one square.
Square 18A
In either case, complicated or not, the deeds must be recorded. This can be costly so remember to plan for this expense when making the decision on whether to use federal funds or local funds for acquisition. Along the way, be sure to work on completing the final plans package (PSE) for construction. Do not advertise until allowed by MoDOT.
Squares 16B, 17B and 18B
If your project is complicated, you can begin to get property appraised, have those appraisals reviewed and move to the next square. Negotiate the offers and justify settlements, if necessary and move on. Then, for those owners with whom you cannot reach an agreement, you may want to consider Condemnation and the effects of acquiring the parcels thru Eminent domain. You have a right to do this, so use it if you must. After all, any project built on all of the easements and RW originally proposed, is a better project than one with less RW acquired.
Square 19
Submit your RW Clearance Certification to the District Design Liaison, or the Central Office RW Section staff designated to handle Federal-Aid projects. Please do this as early as possible to ensure there is time to review the acquisition files. Many times RW personnel will be available to come to your city or county to perform the review. In most cases, this may be more efficient; if there are any changes to be made, it typically can be handled on the spot.
If your parcel files are not in order, you will spend whatever additional time it takes to remedy the situation in order to certify the RW is clear. This must be completed before any construction activity can take place. If the parcels have been acquired according to policies and procedures, MoDOT will advise you that your RW Clearance Certification is approved and ready to move the project along.
Square 20
Congratulations you have successfully completed the three steps involved in RW Acquisition; RW Plans, Acquisition Authority, and RW Clearance Certification.
Should you have any questions, please refer to the remainder of this LPA-LAM or contact your MoDOT Federal-Aid Project representative.