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Section 2: Policy on Early Acquisition (for State)

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Policy

Early acquisition on a parcel by parcel basis should only be considered or utilized on a very limited basis, and only for fully qualifying hardship, protective buy, or donation situations. It should be specifically noted that the Federal laws and regulations only contain provisions dealing with when a state may be able to still obtain federal reimbursement (or credit) for parcels acquired prior to normal environmental and right of way release and provided such parcels are then actually included within the final alignment and facility as constructed. The Federal laws and regulations do not give direct legal authority for the early acquisition of such parcels, as acquisition authority is entirely based upon state law. The acquisition of options under Transportation Code Sections 202.111 through 202.114, is an example of such specific state law authority. While Transportation Code Sections 203.051 and 203.052 provide the general legal authority for the acquisition of various interests in real property, before a parcel of land can be routinely acquired under Texas law, the project development process should have proceeded through the environmental review process to the point that a preferred alignment has been determined and a schematic prepared in accordance with such alignment and a release for right of way acquisition has occurred. Early acquisitions on a hardship, protective buy, and donation basis are not expressly provided for under Texas law. Therefore, such acquisitions have always been very limited and handled only on a parcel by parcel basis, where the project development and environmental process (under either NEPA or Transportation Code Section 201.604 for projects not subject to review under NEPA) has proceeded to the point where at least a preliminary schematic has been prepared which shows either multiple alignments being considered and/or a preferred alignment having been determined after appropriate environmental public meetings or hearings have been completed. When Federal funds may be involved in right of way costs, in addition to the above requirements, the following should be documented to have occurred: either (1) official notice has been given to the public that a preferred or recommended alignment for the proposed highway is selected, or (2) a Public Hearing has been held or an opportunity for such a hearing has been afforded.

All early acquisitions are to be on acceptable routes and adequate for the proposed highway facility in accordance with TxDOT's standard design practices.

Each hardship acquisition or protective buying case will be handled on its individual merits and the determination of necessity for early acquisition will be made by the Department and approved by the ROW Program Office in Austin.

Hardship acquisition and protective buying procedures do not apply to lands used for parks, recreational areas, wildlife and waterfowl refuges, or historic sites (i. e. , properties subject to the provisions of 49USC 1653f, commonly known as Section 4(f), or to 16USC 470f, (historic properties) until the required Section 4(f) determinations and the procedures of the Advisory Council on Historic Preservation are completed.

Parcels acquired through early acquisition shall be numbered according to example 19 in the Parcel Numbering Chart in TxDOT’s Right of Way Manual Vol.1 - Procedures Preliminary to Release, on all right of way maps for the relevant project.

There is no difference in title requirements when right of way is acquired through early acquisition. Adequate title must be obtained.

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