DOT 23 CFR PART 710-2011 RIGHT-OF-WAY AND REAL ESTATE.pdf

1、372 SUBCHAPTER HRIGHT-OF-WAY AND ENVIRONMENT PART 710RIGHT-OF-WAY AND REAL ESTATE Subpart AGeneral Sec. 710.101 Purpose. 710.103 Applicability. 710.105 Definitions. Subpart BProgram Administration 710.201 State responsibilities. 710.203 Funding and reimbursement. Subpart CProject Development 710.301

2、 General. 710.303 Planning. 710.305 Environmental analysis. 710.307 Project agreement. 710.309 Acquisition. 710.311 Construction advertising. 710.313 Design-build projects. Subpart DReal Property Management 710.401 General. 710.403 Management. 710.405 Air rights on the Interstate. 710.407 Leasing. 7

3、10.409 Disposals. Subpart EProperty Acquisition Alternatives 710.501 Early acquisition. 710.503 Protective buying and hardship ac-quisition. 710.505 Real property donations. 710.507 State and local contributions. 710.509 Functional replacement of real prop-erty in public ownership. 710.511 Transport

4、ation enhancements. 710.513 Environmental mitigation. Subpart FFederal Assistance Programs 710.601 Federal land transfer. 710.603 Direct Federal acquisition. Subpart GConcession Agreements 710.701 Purpose. 710.703 Definitions. 710.705 Applicability. 710.707 Fair market value. 710.709 Determination o

5、f Fair market value. AUTHORITY: Sec. 1307, Pub. L. 105178, 112 Stat. 107; 23 U.S.C. 101(a), 107, 108, 111, 114, 133, 142(f), 156, 204, 210, 308, 315, 317, and 323; 42 U.S.C. 2000d et seq., 4633, 46514655; 49 CFR 1.48(b) and (cc), 18.31, and parts 21 and 24; 23 CFR 1.32. SOURCE: 64 FR 71290, Dec. 21,

6、 1999, unless otherwise noted. Subpart AGeneral 710.101 Purpose. The primary purpose of the require-ments in this part is to ensure the pru-dent use of Federal funds under title 23 of the United States Code in the acqui-sition, management, and disposal of real property. In addition to the re-quireme

7、nts of this part, other real property related provisions apply and are found at 49 CFR part 24. 710.103 Applicability. This part applies whenever Federal assistance under title 23 of the United States Code is used. The part applies to programs administered by the Federal Highway Administration. Wher

8、e Fed-eral funds are transferred to other Fed-eral agencies to administer, those agencies procedures may be utilized. Additional guidance is available elec-tronically at the FHWA Real Estate services website: http:/ www.fhwa.dot.gov/realestate/index.htm 710.105 Definitions. (a) Terms defined in 49 C

9、FR part 24, and 23 CFR part 1 have the same mean-ing where used in this part, except as modified in this section. (b) The following terms where used in this part have the following meaning: Access rights means the right of in-gress to and egress from a property that abuts a street or highway. Acquir

10、ing agency means a State agen-cy, other entity, or person acquiring real property for title 23 of the United States Code purposes. Acquisition means activities to obtain an interest in, and possession of, real property. Air rights means real property inter-ests defined by agreement, and con-veyed by

11、 deed, lease, or permit for the use of airspace. Airspace means that space located above and/or below a highway or other VerDate Mar2010 09:39 May 11, 2011 Jkt 223076 PO 00000 Frm 00382 Fmt 8010 Sfmt 8010 Y:SGML223076.XXX 223076wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reprod

12、uction or networking permitted without license from IHS-,-,-373 Federal Highway Administration, DOT 710.105 transportation facilitys established grade line, lying within the horizontal limits of the approved right-of-way or project boundaries. Damages means the loss in value at-tributable to remaind

13、er property due to severance or consequential damages, as limited by State law, that arise when only part of an owners property is acquired. Disposal means the sale of real prop-erty or rights therein, including access or air rights, when no longer needed for highway right-of-way or other uses eli-g

14、ible for funding under title 23 of the United States Code. Donation means the voluntary trans-fer of privately owned real property for the benefit of a public transportation project without compensation or with compensation at less than fair market value. Early acquisition means acquisition of real

15、property by State or local govern-ments in advance of Federal authoriza-tion or agreement. Easement means an interest in real property that conveys a right to use a portion of an owners property or a por-tion of an owners rights in the prop-erty. NHS means the National Highway System as defined in 2

16、3 U.S.C. 103(b). Oversight agreement means the project approval and agreement concluded be-tween the State and the FHWA to out-line which projects will be monitored at the plans, specifications, and esti-mate stage by FHWA as required by 23 U.S.C. 106(c)(3). Real property means land and any im-prove

17、ments thereto, including but not limited to, fee interests, easements, air or access rights, and the rights to con-trol use, leasehold, and leased fee inter-ests. Relinquishment means the conveyance of a portion of a highway right-of-way or facility by a State highway depart-ment to another governme

18、nt agency for continued transportation use. (See 23 CFR part 620, subpart B.) Right-of-way means real property and rights therein used for the construc-tion, operation, or maintenance of a transportation or related facility fund-ed under title 23 of the United States Code. Settlement means the resul

19、t of nego-tiations 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 o

20、n value related evidence, administrative consideration, or other factors ap-proved by an authorized agency offi-cial. (2) A legal settlement is a settlement reached by a responsible State legal representative after filing a condemna-tion proceeding, including stipulated settlements approved by the c

21、ourt in which the condemnation action had been filed. (3) A court settlement or court award is any decision by a court that follows a contested trial or hearing before a jury, commission, judge, or other legal entity having the authority to estab-lish the amount of compensation for a taking under th

22、e laws of eminent do-main. State agency means a department, agency, or instrumentality of a State or of a political subdivision of a State; any department, agency, or instrumen-tality of two or more States or of two or more political subdivisions of a State or States; or any person who has the autho

23、rity to acquire property by eminent domain, for public purposes, under State law. State transportation department (STD) means the State highway department, transportation department, or other State transportation agency or com-mission to which title 23 of the United States Code funds are apportioned

24、. Uneconomic remnant means a remain-der property which the acquiring agen-cy has determined has little or no util-ity or value to the owner. Uniform Act means the Uniform Relo-cation Assistance and Real Property Acquisition Policies Act of 1970, as amended (Public Law 91646, 84 Stat. 1894), and the

25、implementing regula-tions at 49 CFR part 24. VerDate Mar2010 09:39 May 11, 2011 Jkt 223076 PO 00000 Frm 00383 Fmt 8010 Sfmt 8010 Y:SGML223076.XXX 223076wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-374 23 CFR Ch. I

26、 (4111 Edition) 710.201 Subpart BProgram Administration 710.201 State responsibilities. (a) Organization. Each STD shall be adequately staffed, equipped, and orga-nized to discharge its real property-re-lated responsibilities. (b) Program oversight. The STD shall have overall responsibility for the

27、ac-quisition, management, and disposal of real property on Federal-aid projects. This responsibility shall include assur-ing that acquisitions and disposals by a State agency are made in compliance with legal requirements of State and Federal laws and regulations. (c) Right-of-way (ROW) operations m

28、anual. Each STD which receives fund-ing from the highway trust fund shall maintain a manual describing its right- of-way organization, policies, and pro-cedures. The manual shall describe functions and procedures for all phases of the real estate program, including appraisal and appraisal review, ne

29、go-tiation and eminent domain, property management, and relocation assist-ance. The manual shall also specify procedures to prevent conflict of inter-est and avoid fraud, waste, and abuse. The manual shall be in sufficient detail and depth to guide State employees and others involved in acquiring an

30、d managing real property. The State manuals should be developed and up-dated, as a minimum, to meet the fol-lowing schedule: (1) The STD shall prepare and submit for approval by FHWA an up-to-date Right-of-Way Operations Manual by no later than January 1, 2001. (2) Every five years thereafter, the c

31、hief administrative officer of the STD shall certify to the FHWA that the cur-rent ROW operations manual conforms to existing practices and contains nec-essary procedures to ensure compliance with Federal and State real estate law and regulation. (3) The STD shall update the manual periodically to r

32、eflect changes in oper-ations and submit the updated mate-rials for approval by the FHWA. (d) Compliance responsibility. The STD is responsible for complying with cur-rent FHWA requirements whether or not its manual reflects those require-ments. (e) Adequacy of real property interest. The real prope

33、rty interest acquired for all Federal-aid projects funded pursu-ant to title 23 of the United States Code shall be adequate for the con-struction, operation, and maintenance of the resulting facility and for the protection of both the facility and the traveling public. (f) Recordkeeping. The acquiri

34、ng agen-cy shall maintain adequate records of its acquisition and property manage-ment activities. (1) Acquisition records, including records related to owner or tenant dis-placements, and property inventories of improvements acquired shall be in sufficient detail to demonstrate com-pliance with thi

35、s part and 49 CFR part 24. These records shall be retained at least 3 years from either: (i) The date the State receives Fed-eral reimbursement of the final pay-ment made to each owner of a property and to each person displaced from a property, or (ii) The date a credit toward the Fed-eral share of

36、a project is approved based on early acquisition activities of the State. (2) Property management records shall include inventories of real prop-erty considered excess to project needs, all authorized uses of airspace, and other leases or agreements for use of real property managed by the STD. (g) P

37、rocurement. Contracting for all activities required in support of State right-of-way programs through use of private consultants and other services shall conform to 49 CFR 18.36. (h) Use of other public land acquisition organizations or private consultants. The STD may enter into written agree-ments

38、 with other State, county, mu-nicipal, or local public land acquisition organizations or with private consult-ants to carry out its authorities under paragraph (b) of this section. Such or-ganizations, firms, or individuals must comply with the policies and practices of the STD. The STD shall monito

39、r any such real property acquisition activi-ties to assure compliance with State and Federal law and requirements and is responsible for informing such orga-nizations of all such requirements and for imposing sanctions in cases of ma-terial non-compliance. VerDate Mar2010 09:39 May 11, 2011 Jkt 2230

40、76 PO 00000 Frm 00384 Fmt 8010 Sfmt 8010 Y:SGML223076.XXX 223076wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-375 Federal Highway Administration, DOT 710.203 (i) Approval actions. Except for the Interstate system,

41、the STD and the FHWA will agree on the scope of prop-erty related oversight and approval ac-tions that the FHWA will be respon-sible for under this part. The content of the most recent oversight agreement shall be reflected in the State right-of- way operations manual. The oversight agreement, and t

42、hus the manual, will indicate for which non-Interstate Fed-eral-aid project submission of mate-rials for review and approval are re-quired. (j) Approval of just compensation. The amount determined to be just com-pensation shall be approved by a re-sponsible official of the acquiring agen-cy. (k) Des

43、cription of acquisition process. The STD shall provide persons affected by projects or acquisitions advanced under title 23 of the United States Code with a written description of its real property acquisition process under State law and of the owners rights, privileges, and obligations. The de-scri

44、ption shall be written in clear, non- technical language and, where appro-priate, be available in a language other than English. 710.203 Funding and reimbursement. (a) General conditions. The following conditions are a prerequisite to Federal participation in the costs of acquiring real property exc

45、ept as provided in 710.501 for early acquisition: (1) The project for which the real property is acquired is included in an approved Statewide Transportation Im-provement Program (STIP); (2) The State has executed a project agreement; (3) Preliminary acquisition activi-ties, including a title search

46、 and pre-liminary property map preparation necessary for the completion of the en-vironmental process, can be advanced under preliminary engineering prior to National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) clear-ance, while other work involving con-tact with affected property owner

47、s must normally be deferred until after NEPA approval, except as provided in 23 CFR 710.503 for protective buying and hardship acquisition; and in 23 CFR 710.501, early acquisition. Ap-praisal completion may be authorized as preliminary right-of-way activity prior to completion of the environ-mental

48、 document; and (4) Costs have been incurred in con-formance with State and Federal law requirements. (b) Direct eligible costs. Federal par-ticipation in real property costs is lim-ited to the costs of property incor-porated into the final project and the associated direct costs of acquisition, unle

49、ss provided otherwise. Participa-tion is provided for: (1) Real property acquisition. Usual costs and disbursements associated with real property acquisition required under the laws of the State, including the following: (i) The cost of contracting for private acquisition services or the cost associ-ated with the use of local public agen-cies. (ii) The cost of acquisition activities, such as, appraisal, appraisal review, cost estimates, relocation planning, right