OHIO DEPARTMENT OF TRANSPORTATION OFFICE OF REAL ESTATE

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1 DATE: March 18, 2015 OHIO DEPARTMENT OF TRANSPORTATION OFFICE OF REAL ESTATE TO: FROM: Users of the Real Estate Manual Wayne Pace, Manager, Acquisition Unit RE: Changes and Updates to the Real Estate Manual There has been a change to the Real Estate Manual. The change is: Section (B) (2) The Early Acquisition Contamination section added the Division of Chief legal Counsel and added Underground Storage Tank Regulation (BUSTER). Also, within the section item number 3 was removed and added to section (B) (1). Section The Acquisition for Mitigation section is a complete rewrite of its procedures. Section (B) Planning for the Acquisition of Contaminated property. This section added instructions to contact for OEPA and or USEPA. The only current and accurate source of ODOT s Real Estate Manual is on the Office of Real Estate s web page. This site is located at: where the information can be accessed by scrolling down the left column and selecting Manuals. Individuals or firms providing real estate services to the Ohio Department of Transportation (ODOT), or Local Public Agencies under its jurisdiction, must perform these services in compliance with current policies and procedures as listed on the Office of Real Estate web page. Real estate procedures do evolve and change overtime causing the Real Estate Manual to be updated on the web site. Individuals utilizing other versions of the manual, risk providing non-compliant services to the Ohio Department of Transportation ODOT provides notice of the Real Estate Manual changes on the Design Reference Resource Center (DRRC) web page which is accessed at Scroll down to Real Estate Policies and Procedures Manual and select the desired section for updates. You may enter your address to subscribe for changes. It is the user s responsibility to maintain their most current address on the DRRC notification system. The DRRC web site is updated four times a year. The Office of Real Estate may also provide additional guidance supplementing its procedures by issuing an Inter- Office Communications (IOCs) to the district offices. Contact Wayne Pace at telephone number (614) or by at wayne.pace@dot.state.oh.us for questions about the Acquisition Section of the Real Estate Manual.

2 TABLE OF CONTENTS 5300 SPECIAL ACQUISITION PROCEDURES PAGE 5301 Early (Advanced) Acquisition Procedure to Acquire General Considerations for Early Acquisitions Federal Reimbursement for Early Acquisitions Early Acquisitions for Protective Buying and Hardships Federal Reimbursement When Early Acquisition is by Donation Early Acquisition of Contaminated Property Acquisition of Tenant-Owned Improvements that are Real Property Procedures to Acquire Real Property Owned by a Tenant Acquisition of Publicly Owned Property Offer Used When ODOT Does Not Have Eminent Domain Authority Offer Used When ODOT Has Eminent Domain Authority General Steps to Acquire Acquisitions Requiring Approval From the Control Board Acquiring Real Property from Local Public Agencies Acquiring Real Property from State Agencies The Acquisition of Canal Lands Acquiring Real Property from the Federal Government Functional Replacement of Publicly Owned Lands And Facilities Acquisition of Real Property from Railroad Corporations The Railroad Agreement Rail Line Classification Laws Pertaining to Railroads Procedure to Acquire Rights of Way From Railroads Condemnation LPA Involvement on Projects The Uneconomic Remnant Procedure to Determine if a residue is Uneconomic Making the Offer to the Owner The Instrument Used to Purchase the Uneconomic Remnant Acquisition Procedures for Excess Land Parcels Procedure for Excess Land Procedure to Obtain a Right of Entry /16/ i

3 Procedure to Obtain a Right of Entry from the Owner Rights of Entries Required for Emergency Projects Damage Claims Procedure for Damage Claim Settlements Procedure to Use the Damage Claim Form - RE Reportable IRS Income Object Codes Used for Damage Claims Acquisition Procedures for Purchasing ODOT Facility Sites General Pre Acquisition Activities Appropriation Authority Acquisition Activities When ODOT Does Not Have Appropriation Authority Donations of Real Estate Procedure for Donation Owner Retention of Improvements Procedure for Owner Retention Procedure for Salvage Value Procedure for Amending Contract or Bill of Sale Procedure for the Agreement for Removal of Improvements RE Encroachments General Information Clearing Encroachments Boundary Surveys Procedure to Address the Boundary Survey Procedure for Amending the Contract Vacation of Rights of Way Outdoor Advertising Devices Acquisition Procedure Acquisitions for Mitigation Regulations Governing Mitigation Procedure to Acquire for Mitigation Procedure to Acquire When No Specific Parcel is Needed for the Project Procedure to Acquire When a Specific Parcel is Needed for the Project Procedure to Acquire 6(f) Properties /16/ ii

4 Procedure for full Delivery Mitigation Projects Leasing Vacant Buildings During the Acquisition Phase of a Project Procedure to Rent Acquisition of Cemeteries Offsetting the Price Paid for an Acquisition Parcel by the Value of Excess Land Procedure to Implement Law The Acquisition of Contaminated Property Planning for the Acquisition of the Contaminated Property Acquiring Property Subject to the Garage Law Procedure to Implement the Provision of Law Acquiring Property From Individuals Working for an Instrumentality of the State General Regulation Controlling Conflict of Interest for ODOT Employees Procedure for Conflict of Interest Acquiring Real Property Subject to a Life Estate Identifying a Life Estate Interest Acquisitions That Do Not Displace Life Tenants Acquisitions That Displace Life Tenants /16/ iii

5 5300 SPECIAL ACQUISITION PROCEDURES 5301 Early (Advanced) Acquisition Early acquisition is defined in Federal regulation 23 CFR as: Acquisition of real property by State or local governments in advance of Federal authorization or agreement. Further, under the requirements of 23 CFR, Subpart E, Section : The state may initiate acquisition of real property at any time it has the legal authority to do so based on program or project considerations. The State may undertake early acquisition for corridor preservation, access, or other purposes Procedure to Acquire A. Compliance to the Uniform Act Any early acquisition must comply with the Uniform Act. The negotiation procedures required by this Act are implemented in Section 5200 of the Real Estate Manual. B. Form Used to Make the Offer The District Office shall determine if the Plan Development Process (PDP) has progressed to the point that ODOT has authority to appropriate the early acquisition parcel. The District may need to seek guidance from the Ohio Attorney General s Office to determine if ODOT can appropriate the property. If ODOT has the authority to appropriate, the offer will be made on the NIAGFO form. If ODOT does not have the power to appropriate, the offer will be made on the form entitled Notice of Intent to Acquire and Good Faith Offer for an Early Acquisition General Considerations for Early Acquisitions A. FHWA Authorization 1. For Federal funded projects, a requirement of 23 CFR is: As a condition of Federal-aid, the STD (State Transportation Department) shall obtain FHWA authorization in writing or electronically before proceeding with any real property acquisition including hardship acquisition and protective buying (see 23 CFR ). The STD must prepare a project agreement in accordance with 23 CFR part 630, subpart C. The agreement shall be based on an acceptable estimate for the cost of the acquisition. Federal authorization obligates Federal money for the project, but ODOT cannot use Federal funds until the Project Agreement has been executed. The Project Agreement explains how costs are shared between ODOT and FHWA. The District shall request that ODOT s Office of Payroll and Federal Accounting obtain approval of an Authorization/Project Agreement for the project from FHWA. Once approved, ODOT has authority to purchase once funds have been 03/16/

6 encumbered. The Office of Payroll and Federal Accounting shall mail the Authorization/Project Agreement to the District Office. Once the Authorization/Project Agreement is executed, Whole Take Authority may be granted by FHWA based on preliminary plans. ODOT has 20 years to purchase the right of way and to let the construction contract or it will forfeit Federal funding for the right of way. At this point, the Department may make early acquisitions subject to Federal approval. ODOT cannot enter into negotiations with affected property owners until the NEPA document has been approved and there is Federal authorization. B. Full Takes and Partial Takes If the acquisition is so early that right of way plans have not been finalized and it is determined ODOT does not have appropriation authority, the acquisition shall be of the entire property. Partial acquisitions shall occur when right of way plans have been finalized and full right of way authorization has been granted by FHWA. This procedure is established because when plans are not sufficiently final, the take is not known with certainty. As a result, the residue also cannot be known with certainty. Therefore, the estimate of compensation cannot be done in compliance with Ohio law. C. The Environmental Document 1. Any acquisition using Federal funds and occurring prior to approval of the Environmental Document must comply with 23 CFR, Subpart E, and Section Early Acquisitions. 2. Any acquisition made prior to the approval of the Environmental Document will not receive Federal reimbursement. Excepted from this regulation are protective purchases and hardship acquisitions that are subject to the provisions in 23 CFR and that have received prior Federal approval for reimbursement, However, under the provisions of 23 CFR , under certain conditions, the purchase may be used as a credit toward the project. 3. Any early acquisition made prior to the approval of the Environmental Document cannot influence the selection of an alternative alignment. 4. Early acquisitions of properties cannot be subject to Section 4f. Section 4f applies only if there is Federal funding in the highway project. The requirements of Section 4f are found in 23 CFR and 49 USC 303. The requirements under this section generally preclude the use of public land for highway projects if the land is utilized for public park, recreation area, or wildlife and waterfowl refuge or any significant historic site unless there is no feasible or prudent alternative. However, even if there are no alternatives, there cannot be an early acquisition of a parcel subject to 4f. 03/16/

7 5. Any non-residential property that is to be acquired early must have had adequate environmental studies completed prior to the acquisition. These studies are to include at a minimum an environmental site assessment screening. For additional information - see the Office of Environmental Services procedures Federal Reimbursement for Early Acquisitions Federal reimbursement for the acquisition of real property needed for a highway project can be divided into 5 areas. The areas and the procedure required to receive reimbursement are as follows: A. Hardship and Protective Purchases 1. These acquisitions occur prior to the approval of the Environmental Document for the project and are only done in exceptional circumstances. Because the Environmental Document is not yet finalized and approved, these acquisitions must have a property specific environmental clearance. As long as the acquisition is done in a manner that is compliant with 23 CFR , Federal reimbursement is possible for these acquisitions. : 2. Hardship or protective purchases will be total takes. 3. The District does not yet have appropriation authority, so if agreement cannot be reached, no acquisition will occur until the right of way plans are finalized and FHWA has granted full right of way authorization. 4. See Section of these procedures for more information regarding Hardship Acquisitions and Protective Purchases. B. Incidental Authority 1. When this type of authority is granted by FHWA, the approval of the Environmental Document has not yet occurred, but the approval is imminent. 23 CFR (a)(3) allows reimbursement for preliminary acquisition including title searches, appraisal activity and preliminary property map preparation necessary for the completion of the environmental process. This process should be used only when NEPA clearance is imminent; otherwise title and appraisal reports will become outdated and will need to be updated or redone to reflect changes in title and market conditions. At this point in time, it is possible for the cost of titles and appraisals to be reimbursed as a preliminary right of way activity. Negotiation activities must be deferred until after the NEPA approval, except as provided for in 23 CFR for protective and hardship acquisitions. C. Whole Take Authority 1. When this authority is granted by FHWA, the Environmental Document has been approved and the project agreement is completed between FHWA and ODOT. 03/16/

8 The R/W plans are not yet finalized, but there is sufficient information to identify properties that are totally contained within the right of way limits. The acquisition process for whole properties can be initiated. It may be possible to have appropriation authority for these whole/total takings. However, guidance and direction must be obtained from the Attorney General s Office to determine the status of the project relative to the appropriation regulations in the Ohio Revised Code. D. Full Right of Way Authorization 1. Full Right of Way authorization is obtained from FHWA at that point in time when the Environmental Document has been approved, the project agreement has been completed and the right of way plans have been finalized. ODOT has appropriation authority subject to the provisions of the Ohio Revised Code, Sections (H) and (B). The District Office can acquire partial take acquisitions. E. Credits 1. If the early acquisition occurs prior to the approval of the Environmental document, ODOT may not receive reimbursement for the purchase from FHWA. However, so long as certain conditions are met, the purchase may be used as a credit towards the State s share of the project. The conditions to receive credit are defined in 23 CFR Early Acquisitions for Protective Buying and Hardships A. Requirements Applicable to both Protective Purchases and Hardship Acquisitions 1. Prior to final approval of the Environmental Document for the project and based on the requirement of 23 CFR, Subpart E, Section , the District may request approval from FHWA for early acquisition reimbursement for protective purchases and/or hardship acquisitions under special and unique circumstances. In all cases, there must have been an announcement to the public that the District has recommended a preferred alignment and that appropriate environmental studies have been completed. FHWA approval must be secured prior to the obligation of funds and all Federal requirements must be met. To obtain approval for hardship and protective acquisition from FHWA, the District Real Estate Administrator (or designee) shall fill out the form for REQUEST FOR FEDERAL RIGHT OF WAY AUTHORIZATION and send the form to the ODOT Office of Accounting. The Office of Accounting shall package the application and send the package to the FHWA. 2. Under the requirements of 23 CFR , the District must make a public announcement that the preferred location of the project has been recommended. 03/16/

9 There is no case to be made for hardship or protective buy unless there is certainty as to the location of the project. a. The public announcement may occur at public meetings, newspaper announcement, et cetera. Larger projects with complex issues generally require public meetings while small projects that are uncomplicated may need only newspaper announcements, provided the public is aware of the preferred location, to satisfy the requirements under 23 CFR b. The Department has complied with applicable public involvement requirements in 23 CFR parts 450 and An environmental determination of the property must have been completed subject to 23 USC 138 (4f), and if applicable, the procedures of the Advisory Council on Historic Preservation are completed for properties subject to 16 U.S.C.470(f) (historic properties) and, clearance from SHPO (State Historic Preservation Office) if the property is historic. Generally, a Categorical Exclusion 1 for the early acquisition parcel is a sufficient document to fulfill the requirement of the environmental document. 4. The cumulative effect of several early acquisitions cannot prejudice the alignment including the no build alternate. 5. To qualify for protective buying and hardships acquisitions, the project must be included in the currently approved STIP (State Transportation Improvement Program) or there must be a state-wide line item in the currently approved STIP for hardship or protective buying. Additionally, the project must have advanced to at least the sufficient stage when there has been public involvement and that there has been an announcement to the public that a preferred location has been selected.. 6. All properties acquired for any Federal Aid project must be acquired in full compliance with 49 CFR Part 24 (The Uniform Act), and Title VI of the Civil Rights Act. 7. Subject to these requirements, FHWA can authorize a parcel or a limited number of parcels, provided that the acquisition will not influence the selection of the final alignment including the no build alternate. Where applicable and feasible, any structures should be maintained and not razed until after final NEPA clearance. 8. Hardship and protective acquisitions should be confined to total takes of owners properties lying within the limits of the proposed right of way corridor 03/16/

10 B. Requirements for Protective Buying 1. Protective buying is the acquisition of a particular parcel or a limited number of parcels to prevent imminent development, subdivision assemblage, re-zoning and significant cost increases on the preferred location. The requirements of 23 CFR mandate the District to clearly demonstrate that development of such property is imminent and, such development would limit future transportation choices and, the documentation must clearly demonstrate that development of the land would preclude the use of that alignment and, that such development is imminent. A significant increase in cost may be considered as an element justifying a protective purchase to preserve the corridor alignment. 2. State law provides ODOT with the opportunity to purchase rights of way prior to imminent development or zoning changes. ODOT shall be given notice of any pending development, re-zoning, subdivision plat prior to their approval by a local government and, ODOT shall have 120 days from the date of notice to acquire by purchase or gift. This right based on Section of the Ohio Revised Code, comes after notification to the general community of a project, completion of public involvement activities and certification of the making of a change in any existing highway or the establishment of any additional highway by the director to appropriate local government officials. a. In order that notice of any proposed zoning change or subdivision plat or of any application for permit for land use or construction of a building may be required from local government officials, certification of the making of a change in an existing highway or the establishment of a new highway must have been made to appropriate local government officials. Section of the Ohio Revised Code states in part: Any changes made in existing highways by the director or any additional highways established by the director following the public involvement activities shall be certified to the following authorities interested therein: the legislative authority of municipalities, board of county commissioners, board of township trustees, municipal, county and regional planning commissions, and the municipal, township or county officer authorized to issue land use or building permits. b. The best way to ensure local notification of an impending project is to send copies of all plans (preliminary and final) to the local government office(s). Update all plan submissions as new plans become available. C. Requirements for Hardship Acquisitions 1. A hardship acquisition is a purchase of a property at the owner s request for the purpose of alleviating a particular hardship to the owner. The owner s hardship must be unique, in contrast to others, because of an inability to sell their property. The property owner must document on the basis of health, safety, financial 03/16/

11 reasons, or unique and unusual circumstances that remaining in the property poses an undue hardship compared to others. The announcement of a preferred location for a highway alignment may suspend normal real estate activity within the proposed right of way. This situation may result in severe hardship to persons who are forced to sell due to circumstances beyond their control. In the interest of good public relations, all claimed hardship cases shall be carefully investigated and, if conditions warrant, are to be purchased within the limits of available funds. 2. Under the regulations in 23 CFR (c)(2), ODOT may concur in a request for hardship acquisition based on a property owner s written submission that: a. Supports the hardship acquisition by providing justification, on the basis of health, safety or financial reasons, that remaining in the property poses an undue hardship compared to others; and b. Documents an inability to sell the property because of the impending project, at fair market value, within a time period that is typical for properties not impacted by the impending project Federal Reimbursement When Early Acquisition is by Donation A. The District Office must determine if there is any environmental contamination affecting the property to be donated before it can accept any donation. Donations may be made at any time during project development provided: B. Federal requirements include: 1. The owner is advised that they have the right to have their property appraised. 2. When an appraisal is made, the appraiser offers the owner the right to accompany the appraiser on the inspection of the property. 3. The owner is provided the right to negotiate and to be paid just compensation prior to being required to surrender possession of its property. 4. For any property that is donated prior to NEPA clearance, the environmental document must contain the following clauses: a. All alternatives to a proposed alignment will be studied and considered pursuant to NEPA. b. The acquisition of such property will not influence the environmental analysis of the project including the need to construct the project or the selection of a specific location; and 03/16/

12 c. The property will be re-vested in the grantor or its successors in interest if such property is not required for the alignment chosen after a public hearing, if required, and completion of the environmental document. See Section of the Ohio Revised Code for more information. C. See section 5310 of this Real Estate Manual for more information regarding acquisition by donation Early Acquisition of Contaminated Property A. Any nonresidential property to be acquired early shall, prior to any purchase, have an environmental site assessment investigation to determine the extent, if any; of any contamination that affects the property. To avoid contaminated property affecting the district s highway project: 1. The district shall seek guidance from the Office of Environmental Services. 2. Testing of property needed for the project is permitted under Section of the Ohio Revised Code. That section of the law explicitly details the notice requirements before ODOT can enter upon any owner s property. Acquiring real property that is contaminated presents unique challenges and as a result, no one policy or procedure will work in every instance. When dealing with contaminated properties, the most cost effective decisions should occur during the environmental and/or preliminary plan process. Projects can potentially be designed around contaminated properties at this stage of a highway project, thus avoiding costly clean ups, appropriation and litigation for cost recovery. B. In the event a contaminated property must be acquired for the project, a meeting must occur so that all known facts can be discussed regarding the unique contamination issues. Participants of this meeting are to include: 1. From the District: Real Estate Administrator and Environmental Coordinator 2. From Central Office: Appropriate staff from Office of Environmental Services, Division of Chief Legal Counsel and Office of Real Estate. 3. Staff from the Transportation Section of the Ohio Attorney General s Office. The purpose of this meeting is to discuss: 1. Ohio Environmental Protection Agency (OEPA) issues and/or United States Environmental Protection Agency (USEPA) issues and /or, Bureau of Underground Storage Tank Regulation (BUSTR) issues. 03/16/

13 2. The type and extent of contamination within the take area and outside the take area. 3. Environmental Site Assessment investigations and the results of these assessments.. 4. Determine if the contamination would have been found if ODOT s highway project had not impacted the property. 5. Determine if the owner would be required to clean the site if ODOT s project had not impacted the property. 6. Determination of how a property owner would typically clean or remediate the site. This determination must be made without regard to ODOT s methods for handling contaminated dirt. 7. Determine the cost to remediate the site. 8. Determine if a lending institution would lend mortgage money to someone to purchase this property and if so, under what conditions, i.e. type of environmental audits, interest rate, number of years, down payment, and finance charges. 9. Discuss the appropriation risk for this parcel. 10. Determine if the property is a land fill or USEPA site - if so, there needs to be special approval. 11. Determine if Federal Highway Administration expects ODOT to seek recovery of cleanup costs. C. After the team has discussed these relevant issues and anything else that may be pertinent to this particular contaminated property, decisions can be made regarding: 1. Determine if the District should acquire the property or avoid the property. 2. Determine the property right to be acquired such as WD or SH. 3. Determine how the property is to be valued such as: a. Appraise the property as clean and ignore the known contaminants; or, b. Appraise the property as it really exists as contaminated ; or, c. Appraise the property as clean and subtract the cost to clean the site. 03/16/

14 For more information regarding acquisition of contaminated property procedures, see Section 5320 of the Real Estate Manual Acquisition of Tenant-Owned Improvements that are Real Property Improvements to real property acquired for a highway project may be owned by a tenant. Common examples include signage and outdoor advertising devices. The following laws and regulations govern the acquisition of tenant-owned improvements determined to be real property. 1. The Uniform Act, Title III, Sections 302(a) and (b) CFR Part 24, Subpart B, Section Ohio Revised Code, Section (B) 4. The Ohio Administrative Code, Rule E, Section 5501: These laws and regulations require a separate offer and negotiation with the tenant-owner Procedure to Acquire Real Property Owned by the Tenant A. The District Office must determine if the improvement in the area to be acquired is real property and if so, also determine if the improvement is owned by the fee owner or the tenant. 1. To make these determinations, the District shall use form RE 95 and comply with the procedures for the RE 95 see section 5201 of the Real Estate Manual regarding the RE The fee owner and the tenant must agree that the improvement is owned by the tenant. Agreement is documented in writing and by signature on the RE 95. B. The District Office must scope the appraiser to estimate the contributory value of the tenant-owned improvement assuming the improvement is owned by the fee owner. The contributory value of the improvement will be detailed in forms RE 22 and RE C. The District shall next estimate the salvage value of the tenant-owned improvement. Salvage value is defined in 49 CFR 24.2 (a) (23). The acquisition procedures that further explain salvage value are found in Section 5311 of the Real Estate Manual. The tenant is offered the greater of contributory value or salvage value, regardless of the tenant s intention to remove the item or leave the improvement in place to be acquired. D. There will be two separate negotiations when there are tenant-owned improvements classified as real estate. One negotiation is with the fee owner of the real estate and the other negotiation is with the tenant-owner of the improvement. The compensation estimate (FMVE) is allocated between these ownerships. 03/16/

15 1. Each negotiation will have its own file. The tenant owner parcel will be called a BS parcel (BS means Bill of Sale parcel). There will be another file for the fee ownership position. The negotiator will keep adequate records including Negotiator s Notes that sufficiently document the acquisition process to comply with the Records Keeping provision in 23 CFR (f). 2. When the contributory value of the tenant-owned improvement is higher than the salvage value, the contributory value becomes the offer to the tenant. The fee owner s compensation amount is then calculated as follows: a. Total FMVE ( - ) The contributory value of the tenant-owned improvements = Amount offered to the fee owner 3. When the salvage value of the improvements is the higher amount, the salvage value is the amount offered to the tenant. However, the fee owner s offer remains the same as if the tenant s offer were based upon contributory value. a. When the salvage value is the amount to be offered to the tenant-owner, the total of the offers to the fee owner and tenant-owner will exceed the total of the FMVE on the RE 22. This overage amount is eligible for Federal reimbursement. E. The following conditions are to be met before any payment is made to a tenant-owner for the acquisition of the real property improvement: 1. The tenant-owner must assign, transfer and release to the agency all of the tenantowner s right, title and interest in the improvement to be acquired in consideration for the agency s payment of compensation. To implement this regulation in to procedure, the tenant-owner shall sign form RE 69 CC (Bill of Sale from Tenant) prior to any disbursement being made to the tenant. By signing this form, the tenant is conveying all right, title and interest they have in the property to ODOT. 2. The owner of the real property on which the improvement is located is to disclaim all interest in the improvement. To implement this regulation in to procedure, the negotiator shall ensure the fee owner signs form RE 56 (Disclaimer form). By signing this form, the fee owner is disclaiming any interest in the tenant-owned improvement. a. This form must be signed by the fee owner prior to any disbursement of funds being made to the tenant. The form may be signed by a fee owner when the RE 95 is being prepared. 3. The payment of compensation cannot result in the duplication of any compensation otherwise authorized by law. To implement this regulation in to procedure, the District Office must ensure these conditions are met before 03/16/

16 disbursing any funds to any tenant-owner as there can be no duplication of compensation. The risk of duplication generally can occur by: a. Paying a tenant-owner for the improvement in the acquisition process and then relocating the same improvement as a relocation benefit. b. Paying the fee owner 100% of FMVE and then paying the tenant owner of the improvement. F. As required in 49 CFR (e): Nothing in this subpart shall be construed to deprive the tenant-owner of any right to reject payment under this subpart and to obtain payment for such property interests in accordance with other applicable law. To implement this regulation, if the Department and any of the owners cannot agree on price and terms, the owner and the tenant shall be informed that ODOT will submit the entire parcel for appropriation and the court shall then determine the division of ownership, the amount of compensation and the distribution of money Acquisition Of Publicly Owned Property Generally, the District Office will acquire areas needed for rights of way when ODOT has eminent domain authority over the public entity. Examples include cities, counties, school boards, townships, et cetera. Central Office Real Estate will acquire areas needed for rights of way when ODOT does not have eminent domain authority over the public entity. Examples include state and federal government. In these circumstances, the District is responsible for the preparations of title reports, title updates, appraisals, appraisal reviews, the establishment of FMVE and the recording of any documents. Central Office Real estate is responsible for negotiations and closings. In unique circumstances and with agreement between the District Office and Central Office Real Estate, either office may acquire public property typically acquired by the other. Further, if there are tenant-owned improvements or other third party interests in improvements on the publically owned property to be acquired, there must be a clear understanding between the District and Central Office as to who will acquire the fee-owned real estate and who will acquire the other interests. The acquisition of real property from public agencies presents unique problems which can include: 1. The agency may not be able to convey the property right needed for the project. 2. The agency may have their own review process and may not approve of the ODOT acquisition, project or instrument. 3. The agency may not accept the ODOT environmental document. 03/16/

17 4. Agencies have been down-sized and may not be able to process the acquisition as expediently as ODOT would desire. 5. The agency may refuse to convey the property right needed for the project. 6. ODOT may not have the power of eminent domain. 7. The acquisition of publicly owned real estate may require a long time period as agency jurisdiction may overlap requiring the negotiator to simultaneously deal with two or more agencies, as well as more than one person in each agency for one acquisition parcel denoted on the highway plans. The time period to acquire can vary dramatically from 6 to 12 months up to 2 to 3 years. 8. A local government may require an ordinance or resolution to be passed so that land or property rights can be transferred. 9. An acquisition may require a Bill to be passed into law by the Ohio General Assembly. For these reasons, the District must include the public agency in the plan development process to ensure ODOT has adequately considered the agency in the public meeting process. Additionally, the District must ensure adequate time is given to the acquisition process so the property right needed from the agency can be acquired Offer Used When ODOT Does Not Have Eminent Domain Authority A. ODOT does not have the power of eminent domain when acquiring real property from federal agencies, state agencies or from public colleges and universities receiving state funds. Often these acquisitions occur by a transfer of jurisdiction or some other method not requiring an offer. However, when circumstances require an offer to be made, the following procedure can be used. As ODOT does not have the power of eminent domain for these acquisitions, it will not use the Notice of Intent to Acquire and Good Faith Offer when making an offer. When making an offer for these types of acquisitions, the Summary Statement Offer Letter is to be used. 1. When ODOT does not have the power of eminent domain, the acquisition is regulated by 49 CFR (b) (3). This regulation exempts ODOT from compliance to the standards in 49 CFR Subpart B. However, any tenant displaced by such an acquisition is considered a displaced person and the relocation provisions mandated in 49 CFR are applicable to these tenants. 2. The acquisition must comply with the Uniform Act. 03/16/

18 Offer Used When ODOT Has Eminent Domain Authority A. When ODOT has the power of eminent domain over a public agency that is not a state or federal agency, then it must use the Notice of Intent to Acquire and Good Faith Offer when making an offer. B. The acquisition must comply with the Uniform Act General Steps to Acquire A. The negotiator shall take the following steps when negotiating with a public agency: 1. Identify the process/steps to acquire that are unique to the public agency. 2. Identify the time period to complete the acquisition. If the time period is excessive and conflicts with the clearance date of the highway project, the negotiator must immediately communicate this information to the District Real Estate Administrator. 3. Identify the person within the public agency who has decision making and signature authority. The negotiator must make sure that the person they are negotiating with has adequate authority to make decisions and to convey the real estate to ODOT. If the negotiator is dealing with a lower level employee, much valuable time can be wasted and this can adversely impact the acquisition phase of the highway project. 4. Confirm the process with the person having signature authority. B. The negotiator shall attempt to acquire public-owned real property by donation or by agency transfer Acquisitions Requiring Approval From the Controlling Board A. In the event an appraisal is required for the acquisition of State-owned property, ORC requires ODOT to obtain the approval of the Controlling Board for the transfer of any interest in real property to the ODOT with a valuation of $40,000 or more. Section , ORC, presently provides that: "Not-withstanding section and Chapters 123., 339., 501., 511., 721., 723., 747., 749., 759., 903., 3301., 3313., 3337., 3339., 3341., 3343., 3349., and 3375 of the Revised Code, the various departments of state, institutions, commissions, subdivisions and districts of the state, and other public agencies may, without competitive bidding, grant, convey or transfer real property to the Department of 03/16/

19 Transportation in fee simple or in any such lesser estate as it determines and for such consideration as is mutually agreed upon, provided that any such transactions under authority of this section with a valuation of $40,000 or more shall first be approved by the State Controlling Board. Any title to such property or lands taken shall first be taken in the name of the state. B. Controlling Board activities will be coordinated by the ODOT Office of Legislative Services and the Office of Chief Legal Acquiring Real Property From Local Public Agencies A. The negotiator shall establish who is the contact person within the LPA to facilitate the acquisition. B. The negotiator shall discuss the process that will facilitate the conveyance of property to ODOT with the identified contact person at the public agency. The negotiator should also discuss donation. C. The negotiator (and if needed, a person having authority to commit ODOT to an agreement) shall attend, or be available to attend, public meetings to answer and resolve questions raised by the public agency. The negotiator shall be prepared for such meetings to answer questions so that pertinent issues are not tabled for another meeting due to lack of attendance or knowledge on the part of the negotiator. D. The negotiator shall attach a copy of the resolution of the action taken by the LPA to the properly executed conveyance instrument and forward this package to the District Office for recording Acquiring Real Property From State Agencies A. The negotiator shall negotiate with the agency having jurisdiction over the property. It is recommended the negotiator shall first contact the Deputy Director of the agency to identify that agency s process to transfer real property to the ODOT. B. The negotiator shall acquire the real property by interagency transfer or other mutually agreed to format and shall follow the same general procedure described in Acquisition from a Local Public Agency. ODOT shall, only in rare instances, transfer funds with other State agencies. Interagency transfers or other agreements are generally coordinated through the ODOT Office Chief Legal Counsel or the Transportation Section of the Ohio Attorney General s Office. 1. Title to these parcels is already in the name of the State and for these acquisitions. Only jurisdiction is passed to ODOT. Ohio Revised Code, Section requires identification of the agency that acquired the real property and the identification of the real property interest conveyed. 03/16/

20 2. During negotiations, ODOT and the State agency should agree as to whom shall prepare the instrument of transfer. The proposed instrument shall be submitted for review and concurrence by Office of Chief Legal Counsel or the Transportation Section of the Ohio Attorney General s Office prior to execution and the disbursement of any funds The Acquisition of Canal Lands A. Canals were developed within the State of Ohio during the mid-1800's as a way to provide the State with a reliable transportation system. These canals were located in 44 of Ohio s 88 counties. These canals functioned until about 1913 when a combination of railroad competition and destructive weather destroyed much of the infrastructure. The State has sold off most of these canal lands over the years, but still retains approximately 20% of the original lands. In 1989 the management and operation of the remaining canal system was transferred from the Department of Administrative Services to the Department of Natural Resources (ODNR). Responsibility for operation of the hydraulics maintenance was assigned to the Division of Water. Real estate sales and leasing was assigned to the Division of Real Estate and Land Management (REALM). B. Canal lands needed for highway rights of way are secured from the Department of Natural Resources as agent for the State of Ohio. The District shall advise ODNR well in advance of any need of canal lands so that the ODNR may plan the management of these lands. Transfer shall be without consideration, but is subject to any long term leases or other commitments that run with the land Acquiring Real Property From the Federal Government A. Applications for transfer are filed by ODOT with FHWA following the regulation outlined in 23 CFR , "Federal Land Transfers." The acquisition of Federal lands is often complex and it is recommended the negotiator coordinate the acquisition with the State Real Estate Officer, Federal Highway Administration (FHWA), Office of Right of Way, Columbus, Ohio. B. There are specific requirements for each of the different offices of the Federal government. The negotiator shall ascertain from each office the requirements to complete the acquisition of the property rights needed by ODOT. Title reports generally list the owner of Federal property as The United States of America with the address of the responsible Federal agency. There are some Federal agencies which require special legislation for granting rights of way over lands under their jurisdiction and often prefer to proceed under their own laws rather than under the section described above. Applications under this situation are coordinated with the FHWA Real Estate Officer for the State of Ohio who files the application directly with the controlling agency in the form that they require. Procedures 03/16/

21 vary to such a degree that any attempt to outline the requirements for each agency would be impractical. C. There are occasions when a highway project requires an acquisition affecting a property subject to 6(F). These properties were originally acquired with Federal Lands and Water Conservation Funds (6(F) funds). When ODOT (or the LPA) acquires this category of property, it must effect a replacement of the property acquired. The Ohio Department of Natural Resources (ODNR) is the agency overseeing 6(F) acquisitions in the State of Ohio. The acquisition is routed to the United States Department of the Interior, National Parks Service in Omaha, Nebraska once ODNR signs off on the proposed acquisition. D. Occasionally, LPA projects require acquisitions from a state or federal agency and, the state or federal agency may not be able to convey the property right directly to the LPA without legislation. In these situations, ODOT may need to act as a conduit to convey the property rights needed for the project to the LPA. Examples include: An LPA needs to acquire real property owned by a certain Federal agency and this agency cannot convey to the LPA. In this instance, the Federal agency may be able to convey to ODOT or its nominee. ODOT will contact FHWA and FHWA may allow ODOT to name the LPA as ODOT s nominee so that FHWA can convey the Federal land through ODOT to the nominee. An LPA needs to acquire real property owned by the State of Ohio under the jurisdiction of a certain state agency. Most state agencies cannot convey state land to an LPA without an Act for the legislature. Only ODNR and ODOT may convey to an LPA without an Act of the legislature. The process of enacting legislation, if possible, could take two years or longer. Therefore, it may be possible for DAS to convey the property to ODOT and ODOT may then convey the property to the LPA Functional Replacement Of Publicly Owned Lands And Facilities A. The procedure for functional replacement is based on the Code of Federal Regulations, 23 CFR The definition of functional replacement is: Functional replacement is the replacement of real property, either lands or facilities, or both, acquired as a result of a highway or highway related project, with lands and/or facilities which will provide functionally equivalent utility. B. This procedure is applicable to lands and facilities owned by state, county, city or other public agencies provided such property was not originally acquired by the public agency for right of way purposes. This procedure is not applicable to real property owned by Utility or Railroad Companies. Although functional replacement of lands and facilities acquired from a public agency for highway purposes is not mandatory, it may be administratively considered when necessary to the overall public interest. 03/16/

22 The ultimate determination of functional replacement as an alternate procedure shall be concurred by the Department of Transportation and the State Controlling Board. FHWA concurrence is necessary if the proposed financing is Federal-aid participating. C. Procedure To Perform A Functional Replacement 1. Prior to the submission of a draft of Section 4f of the Environmental Impact Statement, the effect the highway project will have on publicly owned lands and facilities must be determined. The District Office, charged with plan development, shall submit a list of affected properties owned by public agencies, to its District Real Estate Administrator. The list shall contain the following information: a. an identifying ownership number, b. the owning agency, c. a description of the lands and facilities and their present use and d. a statement as to whether Section "4f" may apply. 2. Upon receipt of the list of publicly owned properties, the District Office shall meet with the affected public agencies to discuss the effect of the proposed improvement on the public facility. In addition to describing the effect of the proposed improvement and the required taking, the District is to explain that compensation for the taking is based upon ODOT s fair market value estimate of the property to be taken. The District Office should ascertain from the public agency if replacement of the facility is necessary to the overall public interest and if the agency actually plans to functionally replace the facility. No explanation of the functional replacement concept is to be given at this time. 3. If, after meeting with the public agency, the District Office is convinced that functional replacement is necessary to preserve and protect the public interest, the concept of functional replacement will be explained to the affected public agency and an in-depth study into the feasibility of functional replacement will be conducted. 4. It shall also be explained to the public agency that they have the option of accepting either functional replacement or accepting compensation determined through the normal appraisal process. The public agency may waive its right to have an estimate of compensation by the appraisal process if functional replacement is preferred and agreed to by all parties involved. The agency's early decision on the necessity of functional replacement is to be based solely on the merits of that particular situation (need, public interest, etc.). It must be emphasized in the discussion that functional replacement is not a mandatory procedure but one that may be administratively considered in special situations. 5. It should also be explained that any proposal on the part of ODOT for functional replacement must receive the full concurrence of the State Controlling Board and if the project has federal-aid, FHWA approval must also be obtained. In all 03/16/

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