ARRA Efforts Related to Acquisition and Relocation

Transcription

1 ARRA Efforts Related to Acquisition and Relocation Requested by: Christine Rees Survey Deadline: June 24, 2009 The Transportation Resource Board (TRB) in cooperation with FHWA is conducting a survey of state DOT/ROW Managers regarding ROW issues related to the American Recovery and Reinvestment Act (ARRA) of We hope that compilation of the results will be of assistance in putting together a session at the July Legal Conference in Denver, Colorado. The presentation will concern efforts state DOTs and LPAs are making to handle some of the difficult issues involving ROW acquisition and relocation. 1. What process did your state use to identify ARRA "shovel ready projects? 2. How far along in the acquisition/legal process (eminent domain) must a project be in order to be considered shovel ready? 3. What, if any, creative approaches to acquisition is your state using? 4. In a normal environment, it is difficult to get the local public agencies to comply with federal/state regulations. What is your state doing with the local agencies toward maintaining compliance with the Uniform Act (Uniform Relocation Assistance and Real Property Acquisition Policies Act) what is working and what is not? 5. How, if at all, has your rate of conditional clearances changed? (Up or down by how much?) 6. Can you give examples of conditional clearance rationale commonly used in your state? 7. How does your state demonstrate compliance with the legal residency requirement for relocation benefits? ALABAMA ALASKA ARIZONA ARKANSAS CALIFORNIA

2 COLORADO CONNECTICUT 1. The Connecticut Department of Transportation requested the Regional Planning Agencies to have local government bodies submit list of projects that they wanted to fund under the ARRA if The Connecticut Department of Transportation developed a list of State projects under ARRA of 2009 that were to be funded. 2. The projects that were selected on the State side, the right of way was either 100% complete or in the valuation pipeline. There was no set standard for right of way progression in selecting projects for ARRA funding. 3. The Connecticut Department of Transportation, Office of Rights of Way is acquiring all property rights required for funding under ARRA of 2009 in accordance with the Uniform Relocation Assistance and Real Property Acquisition Act of 1970, as amended. 4. All local governments seeking funding under ARRA of 2009 are required to acquire the property rights in accordance with the Uniform Act. To date, we have only had two projects, and the local public agencies are complying with the Regulations of the Uniform Act. There are no deviations. 5. N/A 6. N/A 7. The Connecticut Department of Transportation, Office of Rights of Way certifies to the FHWA that all relocation activities were acquired in conformance to Title III of the provisions of Public Law (Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970). DELAWARE DISTRICT OF COLUMBIA FLORIDA GEORGIA HAWAII IDAHO

3 ILLINOIS INDIANA IOWA KANSAS KENTUCKY 1. By having a list of properties that fix the requirements. 2. We must hold a legal interest in the property, i.e., Recorded deed, commissioner s deed, paid right of entry 3. None 4. Developing a LPA guide, Auditing LPA projects 5. No Changes 6. By the use of our Certification Form 7. Have all those displaced sign a legal U.S. resident certification form LOUISIANA MAINE MARYLAND MASSACHUSETTS MICHIGAN 1. MDOT projects are considered shovel ready if the right of way is secured and in MDOT s possession. 2. Acquisition of the parcel must be complete and in MDOT s possession, or at the very least MDOT has the right to enter upon the land for construction purposes. 3. Michigan condemnation law gives property owners a minimum of 90 days to prepare for a possession hearing so parcels requiring legal action to secure possession are not considered shovel ready. 4. MDOT utilizes the waiver valuation process when possible, acquire easements instead of fee, utilizes Right of Entry Agreements, Possession and Use

4 Agreements, and closing parcels with direct payment to property owners instead going through title companies. All Locals must complete a Right-of-Way Agreement when submitting their Program Application for federally funded projects. Upon receipt, we contact them to insure they are familiar with the Uniform Act and provide training and guidance as needed. A review of their files is completed when the Right-of-Way certification is submitted. The same procedures are followed for ARRA projects. We emphasize compliance with the project schedules and most importantly, timely right-of-way certifications. 5. The rate has remained the same (approximately 20 percent). 6. We encounter two basic categories of exceptions. In some cases the MDOT has obtained Legal Rights of Entry to allow the certification process - and if necessary the construction process - to move forward. Usually this is done when the property owner is agreeable to the acquisition, but there is some delay in closing process or executing the instrument. The second scenario is more problematic because the right-of-way or the Right of Entry is still in negotiation, but it appears that the property owner will cooperate before the certification date. In this case, the rationale is generally based on the provision that the parcel in question can be deleted if necessary without adversely impacting MDOT's ability to construct the project. This usually involves less complex acquisitions such as minor easements, drive and/or grading permits. 7. MDOT follows the normal Uniform Act regulations MINNESOTA 1. The criterion used was no projects could involve R/W acquisition for letting. (Minor exceptions excluded). 2. State must have Title & Possession prior to ground breaking. 3. Design Build. 4. N/A Normal liaison working well. 5. Dawn if anything. 6. Publics Best interest in general 7. MN/DOT incorporates a Residency Certification statement in all claims for relocation payments. The claim form, with the residency certification included, must be acknowledged and executed by the claimant before any relocation payment will be released. The certification statement affirms whether such person, persons, family members, business owners or corporate entities are either: lawful citizens of the United States. The Agency Representative may

5 further verify the displacee s alien status by contacting the local Bureau of Citizenship and Immigration Service (BCIS) Office by submitting to the BCIS the alien s full name, date of birth and alien number, and a copy of the alien s documentation. These procedures are consistent with the provisions of 49CFR General Requirements claims for location payments and Aliens Not Lawfully Present in the United States. MISSISSIPPI 1. The pre-construction area of the Miss Dept of Transportation held meetings to determine which projects had right of way acquired & plans fully developed. 2. All of the right of way must be acquired and the utilities moved. 3. Due to the directive regarding the Uniform Act adherence requirements issued by FHWA, Miss Dept of Transportation has used its usual process. 4. LPA projects have been treated the same as regular projects. 5. No. 6. No 7. The displaced provides a statement. MISSOURI 1. Through our normal planning process, we already had our needs (projects) identified. We reviewed each project identified to determine which phase the project was in and potential roadblocks that would keep us from meeting the specified deadlines for ARRA projects. Based on that review, we chose projects that could be completed within the first 120 days and then chose those projects that could be completed by the final deadline. Our final list of ARRA projects is comprised of needs identified during our normal planning process; however, the highest priority needs weren t always chosen because of the time constraints associated with the ARRA requirements. While the acquisition of realty rights was one of the potential roadblocks we considered, some ARRA projects do require the acquisition of realty rights. 2. It varies. The realty rights needed on some projects had already been acquired or were in the process of being acquired. On other projects, though, Right of Way Plans had not yet been approved. 3. One creative approach we use is what we often refer to as Town Hall Meetings. In this approach, we complete all the appraisals, value estimates, offer letters, deeds, etc., ahead of time and then hold open houses at a location near the

6 project. We may hold two or three open houses for a project, depending on the number of parcels. The right of way staff and design staff attend the open houses. As property owners come in, we make the offers and attempt to get signed deeds. The design staff is there to make any changes to the plans that will assist in reaching a negotiated settlement. We also bring computers to the meeting location so changes to the deed descriptions can be made and documents can be finalized on the spot. Decisions for administrative settlements are also made on the spot. This approach has proven very successful for us. We are usually able to leave those meetings with over 90% of the parcels completely settled and ready for payment. 4. We have individuals within each of our 10 districts who are assigned to work directly with our LPAs. Each district typically holds annual meetings with LPA representatives and consultants to review the process and answer any questions they may have. Specifically for the ARRA projects, we temporarily re-assigned an individual to work with the district LPA contacts and LPAs to ensure that all the bases are covered and nothing falls through the cracks. In addition, we recently held a statewide ARRA Workshop where we invited all of our LPAs to a central location to discuss ARRA requirements and the process. During the workshop, presentations were made relating to all aspects of a project. 5. Our rate of conditional clearances hasn t changed much over the past several years. 6. We don t use common or typical rationale for conditional clearances. Instead, we base the rationale on the specific characteristics of the project and situation. However, we would be glad to discuss some of our specific projects with you, if you would like to give us a call. 7. Our relocation claim forms require signature related to a certification concerning legal residency in the United States. MONTANA NEBRASKA 1. Very shortly after the election in November 2008, the Nebraska Department of Roads realized that some form of economic stimulus involving additional funding for highway improvements was very likely possibility: and began identifying projects that can be available for such funds. The AMERICAN RECOVERY and REINVESTMENT (ARRA) ACT of 2009 was enacted on February 17, 2009 and the funds were made available on March 2, Within 120 days after apportionment to the State, 50% of apportioned funds must be obligated. Any portion of the apportioned funds that are not obligated will be withdrawn and redistributed to other states that have obligated their funds by the deadline. Within one year after apportionment to the State, the remainder apportioned

7 funds must be obligated. Any portion of the remainder apportioned funds that is not obligated will be withdrawn and redistributed to other states that have obligated their funds by the deadline. To meet these stringent provisions, the Nebraska Department of Roads used the following project priority criteria during the selection process to form the list of potential projects. - Select eligible projects that will be completed within a three year period - Select eligible projects that can be obligated within 120 days in Economically Distressed Areas - Select eligible projects that can be obligated within 120 days in non- Economically Distressed Areas - Select eligible projects that can be obligated within one year. 2. The majority of the projects that were selected require minor to no ROW need. However, the ROW acquisition process for complex projects selected for ARRA funds was near completion and in some case in the middle of the condemnation process. 3. None. 4. We use a QA/QC program. Quality Control (QC) is a system of routine technical activities taken by the LPA to measure and control the quality of the ROW work tasks as those tasks are being completed. A QC system is designed to provide routine and consistent checks to ensure correctness and completeness and to identify and address errors and omissions before submitting the required documents to NDOR. Quality Assurance (QA) activities include a planned system of review procedures conducted by NDOR personnel not directly involved in completing the ROW work tasks. These QA reviews will verify that the quality objectives were met and support the effectiveness of the QC program of the LPA. QA/QC Checklists have been developed to provide the LPA and the NDOR ROW employees with quality checking activities that need to be implemented throughout the ROW process in order that the LPA and NDOR can certify that the ROW was acquired in accordance with current FHWA directives covering the acquisition of real property. The ROW Division of NDOR will use an inter-disciplinary approach to complete our QA activities with each section responsible for their disciplines. 5. Rarely used. 6. Not Applicable.

8 7. A self certification is required by all those eligible for relocation assistance service and payments. NEVADA NEW HAMPSHIRE NEW JERSEY 1. Projects that were near or had completed final design. Also all projects had to have minimal or no outstanding ROW needs. 2. All ROW must be acquired and all relocations completed. 3. Using appraisal waiver limits of $25,000. This has had moderate success. 4. All LPA s must submit a statement explaining the specific steps that are used during the ROW process. This is reviewed and approved by the DOT. Audits are part of all the processes. In addition, ROW works closely with each LPA to assist if any issues arise. 5. No change 6. We do occasionally ask the FHWA for a conditional clearance. However, with only one exception, we are not allowed to award a construction project unless all ROW is owned and all personal property relocated. Our rationale is that there is no risk allowing advertisement for bids since if the ROW is not cleared, we will not award the project. This process allows an additional 2-4 months for the ROW process. 7. Using our document producing software/database, we have a stop in the system which does not allow a relocation claim to be prepared unless the negotiator fills in the date the residency letter was signed. Also yearly audits are conducted on relocation files specifically looking for the legal residency letter (among other items) NEW MEXICO NEW YORK NORTH CAROLINA NORTH DAKOTA OHIO

9 OKLAHOMA OREGON PENNSYLVANIA 1. In coordination with our District Offices and our Metropolitan and Rural Planning Organizations (MPO s & RPO s) PennDOT developed a list of projects that could be completed in the ARRA timeframe. 2. Completed 3. No changes have been made to the way we acquire property. 4. Publication 98 LPA Brochure A Guide for Local Public Agency Acquisition of Right-of-Way is specifically for the locals. 5. No significant changes 6. PennDOT uses 4 conditions; each allowing you to go further in the bidding process: - Condition 1 Advertise All parcels must be settled or declaration of takings must be filed - Condition 2 Open Bids Condition 1 plus the preliminary objection period (if any) must have expired without any objections. - Condition 3 Award Condition 2 plus title to all parcels, FMV payments in process, occupied parcels have been vacated. - Condition 4 Notice to Proceed Condition 3 plus all payments have been made 7. PennDOT requires proof of legal residency usually a green card PUERTO RICO RHODE ISLAND SOUTH CAROLINA SOUTH DAKOTA TENNESEE TEXAS

10 1. Texas had each of its 25 District Offices submit a list of shovel ready projects in a priority and project cost order. For a project to be considered shovel ready the environmental release had to have been obtained and all possession completed for all right of way parcels and utility relocation and/or adjustments completed. 2. Texas has a two step eminent domain process (initial commissioners hearing followed by deposit of amount awarded by commissioners in such hearing). Once the hearing has taken place and the deposit made, possession of the property (subject to normal relocation advance notices if applicable) for construction purposes is legally available, and so would be considered shovel ready when all parcels proceeding through eminent domain had completed such commissioners hearing and the award amounts had been deposited. 3. Texas for the most part follows the routine process of waiting until environmental release, before beginning the right of way acquisition process. On a very limited basis, if the environmental process has progressed to the point of having had a public meeting or public hearing, some right of way parcels may be acquired under the hardship or protective buy provisions in the Federal Regulations, but only on a parcel by parcel basis, and for a very limited number of parcels on a project. Texas, has the legal authority, by statute, to acquire an option to purchase a tract of land (possibly more land than the specific right of way parcel itself) in advance of final environmental route determination and environmental release. Such options have been utilized on a very limited basis, and the statute authorizing such options does not permit eminent domain to be utilized to obtain such options, so they must be through voluntary agreement with a landowner. Texas also occasionally utilizes (for projects where environmental release and normal right of way acquisition has started) a paid possession and use agreement for transportation purposes, if a landowner will voluntarily agree to enter into such an agreement where up to the full approved value is paid at the signing of the agreement. This allows the State to obtain possession for construction and utility adjustment purposes, while still allowing negotiations for the amount to be paid to continue. If no final agreement is reached within a stated number of days, the eminent domain process is initiated (credit allowed for the amount paid under the PUA agreement) to determine the final amount to be paid to the landowner. 4. It is not normally hard to get locals to follow the requirements of the URA once they understand the legal requirement and the benefits that must be offered. Most of the larger entities have a working knowledge of the URA, but smaller cities and counties are sometimes blinded by the requirements and additional costs they have not budgeted into the project.

11 Each of our TxDOT Districts has an LPA coordinator who is charged with meeting with locals and explaining the requirements of the URA. Given current staffing, these coordinators do not always have adequate time to do a comprehensive review of local files. There has also been a problem with our Right of Way offices being informed of local projects that have Federal dollars in construction, but neither State nor Federal dollars in right of way. We are currently working on procedures and reports that may provide statewide notification of these projects. Given the growing tendency to form partnerships with LPAs, procedures must be put in place that will ensure compliance with the URA to avoid possible loss of Federal participation in transportation projects. Texas has recently developed an outline of programmatic procedures for use in Pass Through Projects with local public agencies, requiring such LPAs to maintain an expanded parcel check list for each right of way parcel acquired. A percentage of such parcel files, at random, are to be reviewed on an on going basis by the local TxDOT District LPA coordinator while such projects are underway, to determine if such check lists are utilized and accurately reflect that the procedures and documents on the check list are being properly prepared, utilized, and maintained within the right of way parcel files. 5. If what is meant by the term conditional clearances is submitting to FHWA a certification that a project about to be let for construction has all of the right of way and utility adjustments completed (except for some specifically identified parcels or utility adjustments for which an estimated date for which such unclear right of way parcels will be completed), generally in Texas for projects over the last several years (prior to ARRA projects), there has been an increase in the number of projects submitted for letting with outstanding right of way and/or utility adjustments. Some projects in the past (again not ARRA projects) have gone to construction letting with just over 50% of the right of way having been acquired. In such cases, staged construction for certain segments of such projects was utilized, where construction initially started on segments where all right of way and utility adjustments had been completed, and also sometimes a project may be let for construction with a stated time period up front before actual construction begins. Note, however, that for ARRA projects, the requirements of TxDOT s Administration have been that all environmental, right of way, and utility adjustments must have been completed for a project to be considered shovel ready. 6. See above response and discussion for question TxDOT relies on self-certification by the displaced person. Our form is entitled "Certification of Legal Occupancy in the United States." There are two boxes to check; one says they are, and one says they aren't - then they sign the form. If they say they are, we proceed with all benefits - if no, we inform them they are not eligible for benefits. We do allow all persons, whether legal residents or not, the normal vacancy notices, but they usually leave before the notices expire.

12 UTAH VERMONT VIRGINIA WASHINGTON WEST VIRGINIA WISCONSIN 1. WisDOT maintains a list of advance able state highway projects (on shelf projects) that was used in selecting some projects that met the timelines of the ARRA program. Also, there were other priority projects that were not on the advance able list that were included after close review in being able to meet the ARRA criteria. The local program was also solicited for projects that may meet the ARRA criteria. Those local projects submitted and selected for inclusion were reviewed by Wisdom staff that monitors the local program to insure they met the ARRA criteria. 2. Typically, only when project R/W is fully acquired are we able to put the construction contracting out for bids. There are rare exceptions to this that require FHWA approval when there are Federal funds anywhere in the project, which is typically in all of our construction projects. Those exceptions may involve another governmental agency, or we have assurances that the property will be fully acquired by condemnation under eminent domain before bid opening. There is still a six month or two year appeal time under eminent domain once acquired depending on if acquired through condemnation or not. However this does not play into the shovel ready requirements and projects are often put out to contract before these appeal times expire. 3. For the ARRA program we did not have to use any special program. All real estate had already been acquired, or was in the process of being acquired. Not associated with the ARRA program, we have piloted an incentive program that we are now in the midst of quality reviews and possible fine tuning of the program. 4. It is a problem when there are no State or Federal dollars in the real estate acquisition itself. When State or Federal dollars are authorized for reimbursement of the local s costs in the right-of-way acquisitions, a strong adherence to requiring proper documentation by the locals for reimbursement of those dollars is the impetus for their cooperation. When we deal with LPAs we always

13 emphasize the legal requirements of following the Uniform Act and their potential for litigation, and potential loss of Federal dollars in their construction if they don t. Some of our more sophisticated communities have learned this, but still attempt shortcuts periodically. Also, we have implemented a newer mentoring/monitoring program through the use of Management Consultants. They are contracted by the State to try and insure proper implementation of the entire local improvement program. 5. Not sure exactly what the term conditional clearance is referring to. If it is letting a construction contract with properties not being fully acquired but relying on right-of-entries for an interim right to occupy, we now have virtually no conditional clearances as addressed in #2 above. I am not certain of the percent change from when we were able to rely on rightof-entries in the past to today when we are held accountable to being fully acquired by bid advertising. In the past not fully acquired by bid opening may have been 5% or less of our total projects. Now it would be much less than 1% because of the rare exceptions. 6. Again, the rare exception may be for a possible acquisition like a Federal Land Transfer that may take some time, but we obtain a right-of-entry from the governmental agency to continue on with the project construction while the paperwork for the acquisition is being completed. Railroad R/W being fully acquired may occur after the project is in construction, but an order from the railroad commission hearing is in hand as the right to occupy. Any typical property not fully acquired with assurance it will be acquired under condemnation before construction bid opening, may allow for the construction bid advertisement, but is not acceptable if not acquired by bid opening. 7. Wisconsin has a self certification process. On our Relocation Claim which the displaced submits for reimbursement of their relocation expenses, there is a certification where the displaced certifies their legal residency. No further investigation takes place. The Federal requirement gives leniency to the residency requirement if it causes hardship. Most situations would create hardships if the relocation benefit were not made available so it does not give us great cause to do any further investigation. WYOMING 1. Ready to let to contract. We have let over 90% of our Stimulus projects and would be at 100% but bids came in lower than expected.

14 2. We had to have possession of the property. We did not use conditional clearances on Stimulus projects. 3. None 4. We did not have r/w on any Stimulus LPA projects. 5. Stable but too high. 6. If we think we can have it clear by bid opening or if we are in court but are sure we will get possession. 7. It is a question on a form we ask everyone to answer.