Here is a synopsis of the Monday, May 3, 2003 conference events:

The AASHTO Subcommittee on Right-of-Way and Utilities Conference began with a keynote speech from Alan Pisarski.

For almost 40 years Mr. Pisarski has been involved in the national transportation policy scene. He organized the major travel surveys for the nation and designed and managed the U.S. transportation statistical system under the Assistant Secretary for Policy.

Mr. Pisarski’s topic outlined the 2000 Census and the realities for transportation and TEA-21 reauthorization, interpreting the statistics to mean that travel times are increasing and highway capacity is running out. All signals point toward increased support for highway funding reauthorization.

After the keynote speech, Cindy Burbank, Associate Administrator of FHWA, and Jack Zinman, Senior Advisor to the Secretary, Department of Commerce, spoke.

Ms. Burbank discussed the FHWA focus areas for 2003 as safety, environmental stewardship and streamlining, and congestion mitigation. She also announced the following Excellence in Right-of-Way awards:

Integration Award to the New Mexico DOT for their efforts on the US 70 Hondo Valley Project;
Leadership Award to Ken Towcimack, Florida DOT;
LPA Stewardship Award to the Ohio DOT for their approach to providing guidance, assistance, and stewardship to local public agencies;
Streamlining and Innovation Award to the Oregon DOT for their project delivery using a statewide Project Team approach;
Technical Specialties Award to the Illinois DOT – Property Management, recognizing the use of technology to create a new and improved property disposal process.

Mr. Zinman, with the National Telecommunication and Information Administration (NTIA), spoke on rights-of-way as the key to nationwide broadband deployment. He is heading up a working group to:

Streamline applications;
Facilitate timely permitting;
Suggest appropriate fees for the use of the rights-of-way, and;
Determine maintenance and repair procedures.

The NTIA report will be available late June or July 2003.

Later that afternoon, from the State Chief Right-of-Way meeting:

The Uniform Act and 49 CFR Part 24 – the goal is to publish a Notice of Proposed Rulemaking this summer. A draft of the proposed changes was made available to the state chiefs; of particular interest is the possible revision of the advanced acquisition procedures.
Florida, Michigan, Washington, and Wisconsin are conducting pilots evaluating modifications to traditional appraisal review requirements.
Alaska is one of nine states that has pooled research funds for the electronic transmission and storage of appraisals and appraisal-related documents.
Florida has a pilot project approved by the FHWA for an incentive payment program to property owners who settle with Florida within prescribed time frames.
As a result of a survey Alaska and other states provided to the FHWA last year, FHWA believes TEA-21 enables states to use the proceeds from the sale of excess right-of-way on Title 23 eligible projects. However, there is conflict regarding the FHWA position from the GAO. The DOT Office of General Council is currently reviewing the regulations and the GAO opinion. The Office of Real Estate Services will provide guidance to the states when a final determination has been made.
A Web Based Uniform Act training course, “Real Estate Acquisition Under the Uniform Act,” will be offered in June at a cost of $150 per person. I have copies of the first portion of the course on CD that I’ll send to each region.
Other areas of discussion:
1. Corridor Preservation and Right-of-Way Acquisition as an environmental neutral event – an AASHTO Reauthorization issue.
2. 2000 Right-of-Way International Scan report.
3. AASHTO Design Guide for Fiber Optic installation on Freeway ROW.
4. AASHTO ad hoc group on privatization/commercial use of public ROW.
5. Creation of specific functional groups within the AASHTO Right-of-Way Subcommittee. I’ve now a member of two functional groups – 1) Appraisal and Appraisal Review and 2) ROW Program Management.

I’ll be sending you another report tomorrow.

Best regards,
Rick

Here are some of the highlights from today’s AASHTO conference, Tuesday, May 6, 2003:

Training was discussed today by the FHWA, and later O.R. Colan and Associates presented an overview on their Web-based training for basic residential relocation. This course is available through a single user license price of $450 for an 8-hour interactive course on CD. According to Colan and Associates, when agents complete this course, they will have a basic understanding of the Uniform Act as it applies to residential relocation. The course provides cross-references to 49 CFR Part 24.

"Basic Residential Relocation" - Course Outline
Module One - Introduction to Basic Relocation
Module Two - Planning and Advisory Services
Module Three - Relocation Payment Fundamentals
Module Four - Residential Moving Expenses
Module Five - Relocation Payments For 180-Day Owner-Occupants
Module Six - Replacement Housing Payments for 90-day Residential Occupants
Module Seven - Uniform Act Administration
Module Eight - Replacement Housing of Last Resort

I’ll see about reviewing the course and whether it could be beneficial to-Right of-Way.

I talked with Ohio DOT about their use of real estate task orders contracts for LPA. ODOT focused on the environmental and ROW clearance areas. ODOT structured the contracts to match ROW acquisition activities. The contracts are administered by ODOT and used only for LPA projects.

How the contracts work:

They can only be used for labor costs, not property owner payments;
Environmental must be clear;
Appraisal / Review/ Relocation are handled separately.

ODOT will be sending me a copy of their LPA manual.

The Florida DOT gave a presentation on their Appraisal Review Modification Pilot, which began in October 2001; the study is about a third complete. Florida with cooperation from the FHWA is developing this pilot project as a statistical process in which certain appraisal variables are identified. Their system scans appraisal reports and flags the variables. It is a way to assist the review appraiser in identifying inconsistencies or patterns over a project area.

The pilot centers on four of their districts; one rural type district with 144 parcels, one urban type district with 49 parcels; and two districts used as “controls” operating under standard procedures.

The appraisers must manually input the data into the system and their fees reflect this extra work.

When the appraisal is electronically submitted the system tests for standards and if the report passes, it is forwarded to the reviewer. The system also tracks the timing of the delivery of the report; the time of review; the percentage of value (Reviewer’s Determination) over settlement amount; the percentage of value over condemnation amount.

To date FDOT is estimating approximately a two-thirds reduction in review time.

Another presentation dealing with the appraisal function was presented by the state of Virginia. VDOT is also pursuing appraisal software. Their goal is to provide a standardized reporting solution that minimizes mistakes in methodology and problem solving while effectively communicating the appraisal in an organized and precise manner.

VDOT has developed prototype appraisal land acquisition forms, single family dwelling acquisition forms, commercial acquisition forms, review appraisal forms, and an outline for standardizing narrative appraisal reporting.

Their concept is to customize a commercial off-the-shelf appraisal software solution.

I’ll be sending you another report tomorrow.

Best regards,
Rick

These are the highlights from the Wednesday, May 7, 2003, AASHTO-Right- of-Way Conference:

Joe Edwards, Realty Officer FHWA, presented an overview of Administrative Settlements. Admin-settlements are one of the tools that we can use to bring closure to an acquisition. 23 CFR 710.105 defines admin-settlements as:

“Settlement means the result of negotiations based on fair market value in which the amount of just compensation is agreed upon for the purchase of real property or an interest therein. This term includes the following: (1) An administrative settlement is a settlement reached prior to filing a condemnation proceeding based on value related evidence, administrative consideration, or other factors approved by an authorized agency official.”

Cost savings are defined in this demonstration as: “Financial cost of delay or conversely the benefit to the public of an early opening of the facility.”

Benefits to the public can be estimated by the reduction in accidents and travel time before the facility is open and after the facility is open.
The New Mexico DOT was used as an example of the effectiveness of admin-settlements. NMDOT is centrally organized – the department can experience significant travel costs to have face-to-face meetings with property owners. After presenting NMDOT’s offer, ROW agents are authorized to close on a property owner’s counter offer if the offer is warranted and within in pre-set dollar amounts.

Justification includes cost-savings in avoidance of project delays and legal costs. In addition this allows personal empowerment for the ROW agent putting the decision on the person working closest to the property owner.
Admin-settlements should not be allowed to establish a precedent for the project; settlements are not to be treated lightly. File documentation of the admin-settlement must be full and complete.

The condemnation rate for New Mexico was reported to be 1% to 2% of the total parcels acquired.

Business Relocation Update presented by Wayne Coil, FHWA – Washington DC. For the past several years the FHWA has conducted a study to research the adequacy of the current Uniform Act provisions for business relocations. Their studies examined current practices in business relocations, garnered opinions concerning these practices, and synthesize recommendations from the information collected by the study.

After analyzing and synthesizing the information collected in this study, the FHWA report developed the following recommendations:
Each displacing agency should be required to prepare a written business displacement analysis.
The reestablishment payment cap should be raised; incorporating guidelines to provide an incentive to prudently spend authorized payments.
Increase the flexibility of the reestablishment payment to meet particular real costs now excluded from the list of eligible expenses.
Increase the amount of the fixed payment.
Increase the amount of the search expense, and add flexibility to the guidelines.
These recommendations require changes to the existing CFRs and current legislation and recommendations for change is underway.

The business relocation study is located on the Web at http://www.fhwa.dot.gov/realestate/nbrs2002.htm
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Roger Hanson, Right-of-Way Supervisor with Oregon DOT, presented a discussion on the Expectations of a ROW Agent / Negotiator.
Skills and Attributes
o Communication
o Credibility
o People Person
5 Steps to Success
o Communication, well spoken, active listening, explores the owner’s concerns.
o Knowledgeable of the project and the effect of the project on the subject property and surrounding properties
o Creditability, trustworthy, appreciation of diversity
o Preparation, having all documents ready for signature
o Respect – always show respect for the property owner, demonstrate genuine interest in the owner’s concerns
The Funnel Technique
o Information seeking
o Information giving
o Problem census
o Problem solving and closing the negotiations

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New York DOT experienced the removal of illegal signs; they have taken several different approaches and are working on other creative solutions in an effort to have other illegal signs removed.

NYDOT enters into agreements with sign owners which provide for removal of specific illegal signs on a date certain. Pursuant to these agreements, the sign owners have either (a) placed money into an escrow account with their attorney, (b) posted a performance bond, or (c) secured an irrevocable letter of credit which is equal or greater than the anticipated costs of the removal of the signs. These agreements are prepared in a format that allows NYDOT to file these documents with the clerk’s office to give notice to subsequent purchasers of the property that this restriction on the property exists.

Benefits:
Time frames associated with the removal period for the signs are less than the time it would take NYDOT to refer the mater to the state’s AG office, go to court, obtain an order, and have the signs removed.
Assurance of compliance with the removal date by obtaining security for the signs removal.
Handled in-house without burdening the resources of the AG’s office and courts.
Release Procedure involves release forms signed by both the sign owner and the owner of the property where the sign is located consenting to the removal of the sign by NYDOT.
Court Orders – in contested cases, NYDOT will seek court orders for the removal of illegal signs. The process of obtaining court approval of the removal of illegal signs is time consuming and cases for removal should be well documented with a chronology of events and photographs of the sign.

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I have additional information that I’ll send in the next email.
Best regards,
Rick

These are additional highlights from the Thursday, May 7, 2003 AASHTO Right-of-Way Conference; please share this email with your staff:

I wanted to add some information from yesterday’s session to this e-mail – Local Public Agencies presented by Clyde Johnson, FHWA: (Alaska is one of the last states to get their feet wet in this funding pool, a good thing because we’ll learn from the other states.)

Acquisition Statistics – 2002

948 Total LPAs
Total Federal-Aid Parcels = 27,694
Total LPA Parcels = 2,590 (9%)
Total $ Paid = 1.1 Billion
Total $ Paid LPA’s = $54 Million

Total Non-Federal Aid Parcels = 31,283
Total Non-Federal Aid Parcels LPA’s = 9,352 (30%)

Organization for Local Agencies
o They need a “State Local Government Coordinator”
o Regional or HQ?

LPAs are burdened with staff constraints and therefore need more emphasis on training (to be provided by the state). Also the state needs to be aware of any local politics that maybe driving forces.

Types of Local Public Agencies
o Urban – Full time staff or its use of consultants to administer their program.
o Rural – Program is handled by city or borough engineer/attorney/mayor, etc.
State DOT’s problem is designing a program that fits both types of situations.
Typical Provisions of LPA Agreements
o Authority under provisions of state law
o Who does the environmental?
o Who will prepare the deeds (state DOT)?
o Define responsibility for fair market value
o Appraisal review and acquisition cost requirements
o Who pays acquisition, legal, demolition, condemnation costs?
o Local agency must certify title
o LPA compliance with the Uniform Act and 49 CFR Part 24.
o Rodent control measures implemented
LPA Notice to Proceed
o All forms furnished to the locals
o Elements of the appraisal requirements reviewed
o Negotiation records discussed
o 90-day notice discussed
o Complete and accurate records keeping MUST be emphasized
Project control questions the state DOT must answer
o Who advises LPAs or briefs LPA at the time contract is assigned?
o Who’s going to review and approve appraisals and establish fair market value?
o Who does the relocation packages and establishes payments?
FHWA’s major concerns
o Establish FMV prior to the initiation of negotiations [49 CFR 24.102(c)]
o FMV established (reviewed and approved) and just compensation offered in writing [49 CFR 24.102(d)]
o Owner contact / opportunity for owner or designated representative to accompany the appraiser on inspection of the property (49 CFR 24.102(a))
o Documentation
o Relocation
Flexibility Provisions – Make sure the LPAs know and take advantage of:
o $2,500 value estimate (appraisal waivers)
o Negotiation and VE
o Negotiations by mail
o Donations
o Administrative settlements
o Proper appraisal format
49 CFR 24.7 – Federal Agency Waiver of Regulations
o “The federal agency funding the project may waive any requirement in this part not required by law if it determines that the waiver does not reduce any assistance or protection provided to an owner or displaced person under this part. Any request for a waiver shall be justified on a case-by-case basis.”
State DOT authority over LPAs
o Required by Section 305(a) of the Uniform Act
23 CFR 710.201(h)
o Use of other public land acquisition organization or private consultants. “The STD [state transportation department] shall monitor any such real property acquisition activities to assure compliance with Sate and Federal law and requirements and is responsible for informing such organizations of all such requirements and for imposing sanctions in cases of material non-compliance.”
Typical Problems Faced By LPAs
o May be acquiring ROW for first highway project under federal-aid requirements
o Due to local pressure, must show rapid progress
o Require staffing for key positions with acquisition experience that may not be available
o Have a modest to high turnover rate among employees (Local elections could have a dramatic impact on any LPA, new or old.)
LPA Considerations – state DOTs, be aware
o Determine their program needs
o Implement a realistic time frame for program
o Establish a monitoring program
o Provide training (state / federal)
o Obtain sample forms from the state DOT
o Assign key individuals to review work
o Ask for help from the FHWA.

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This was a lot for one e-mail; I’ll be sending you more information on other ROW related subjects a little later.
Best regards,
Rick