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Section 2: Right-of-Way and Other Land Acquisition

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Overview

Land transactions between TxDOT and local governments (LGs) are divided into two broad categories for the purposes of this Manual and the Local Government Project Management Guide (LGPM Guide) – right of way for roads and interests in land used for other purposes.

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  1. Right of Way for Roads – For most road and highway projects, the advance funding agreement (AFA) will define which party is providing funding and coordination for the purchase of right of way. Projects may involve the use of local, state or federal funds for the purchase of right of way and may be subject to the requirements of Title II and Title III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and amendments thereto. Even projects entirely locally funded require TxDOT oversight if the project impacts the state highway system.
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  2. Interests in Land Used for Other Purposes – The second category of TxDOT/LG land transactions relate to land acquired for purposes other than highway right of way. Interests in land used for other purposes may include different forms of real property, such as buildings or other structures. In these cases, specific program rules may impose unique requirements on the LG. If real property is acquired by the LG for a project other than roads, the same requirements listed under “Right of Way for Roads” will be in effect.

The LGPM Guide provides a more detailed description of the types of land transactions which may be involved in an LG project.

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State Letter of Authority

As discussed in detail in Chapter 2 – Project Initiation, the state letter of authority (SLOA) is a form that must be issued on all projects whether the work is competitively bid or performed by the LG. For construction projects, the first SLOA is required prior to the Preliminary Engineering phase. The second SLOA is required prior to the acquisition of right of way or the accommodation of utilities. The third is required prior to advertising for bids for construction. A federal project authorization and agreement (FPAA) is required in addition to the SLOA for all federally funded projects. Chapter 2 of this Manual and the LGPM Guide provide more information on the SLOA and FPAA.

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Land Acquisition

General

The acquisition of land for either road right of way or other purposes by the LG must follow state and federal laws and statutes. TxDOT’s ROW Manuals collection provides several volumes of detailed information including links to necessary forms, extensive legal citations and a process flowchart. More detailed information related to reference manuals and examples are provided in the LGPM Guide.

Federal Constitution and Statutes

The U.S. Constitution limits governmental agencies’ right to obtain real property through eminent domain. That is, governmental agencies can exercise condemnation powers to obtain real property provided the property acquired is for a stated public purpose and is also acquired within limitations and conditions imposed in the Constitution as interpreted by the federal courts.

The primary federal statute pertaining to acquisition through eminent domain is the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 ( 42 U.S.C. Chapter 61). This law is typically referred to as the Uniform Act and includes the original statute plus its amendments.

The fundamental requirements of the Uniform Act are:

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  • a formal appraisal process to establish a property’s fair market value;
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  • a negotiation process free from coercion, promotes public confidence in the land acquisition program, ensures real property owners are treated fairly and consistently, and encourages expedited acquisition by agreements and minimizes the need for litigation;
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  • a relocation program providing fair and consistent relocation assistance services to displaced persons and ensures the displaced persons suffer no disproportionate injuries as a result of the project; and
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  • ensure agencies implement the Uniform Act and its regulations in a manner that is efficient and cost effective.

Although many federal agencies are subject to the Uniform Act, the Federal Highway Administration (FHWA) is the lead agency in its implementation. FHWA provides a complete explanation of the Uniform Act at its Uniform Act Policy and Guidance website.

In the implementation of its right-of-way acquisition and contracting procedures, the LG should also be aware of the provisions of Title VI of the Civil Rights Act of 1964. This statute provides that public funds not be spent in a way that tends to discriminate against certain classes of people. The U.S. Department of Justice is responsible for the enforcement of Title VI. More detailed information is found at the Justice Department’s Title VI Overview website.

Federal Requirements

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  1. Title II and Title III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 – Requires all projects involving the purchase of right of way using state or federal funds, or which are on the state highway system, to meet the requirements of this Uniform Act and amendments thereto.
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  2. 23 CFR Part 710 – Contains specific guidance as to program administration, project development, real property management, property acquisition alternatives, federal assistance programs and concession agreements. The purpose of this regulation is to “ensure the prudent use of Federal funds … in the acquisition, management and disposal of real property.”
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  3. 49 CFR Part 24 – Provides specific rules pertaining to real property acquisition and relocation matters in order to “promulgate rules to implement the Uniform Act,” which is referenced above.

State Requirements

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  1. The primary statutory authority for right-of-way acquisition is found in Texas Property Code, Chapter 21 – Eminent Domain and in various provisions of the Texas Transportation Code. Administrative requirements are set out in 43 TAC Part 1, including 43 TAC Chapter 21.

Required Practices

The LGPM Guide provides a description of the required practices that must be followed during the purchase of land by a LG for specific types of projects. The responsibilities of both the LG and TxDOT are provided.

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Advance Acquisition of Land

P.L. 112-141, the Moving Ahead for Progress in the 21st Century Act (MAP-21) was enacted in 2012. This law includes provisions for federal funding of right of way purchased by the LG in advance of final environmental approval. This law is specific and depends upon existing state statutory requirements. The TxDOT Right of Way Division (ROW) advises caution in advance acquisitions because, if used inappropriately, it could jeopardize federal funding for the project. Further guidance will be provided as the federal law is affected. A LG should consult with ROW attorneys concerning any consideration of advance acquisition. If an LG chooses to use its own funds for advance acquisition without seeking federal reimbursement, it can do so subject to the guidance in TxDOT’s ROW Real Estate Acquisition Guide for Local Public Agencies.

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Relocation of Individuals and Businesses

General

Any LG project requiring an individual or business to move, or requires an individual or business to move their personal property, will necessitate that the LG provide relocation assistance complying with the requirements of the Uniform Act and 49 CFR Part 24. Relocation assistance consists of two major elements – advisory services and financial assistance. These activities can have considerable impacts on project budgets and timing and should be planned for accordingly. Any relocation assistance program must strive to ensure all displaced persons are treated fairly, consistently and equitably, and to ensure those displaced persons do not suffer disproportionate negative impacts as a result of the project.

TxDOT’s ROW Relocation Assistance Manual and ROW staff can offer further clarification and guidance on questions regarding interpretation and implementation of the Uniform Act and 49 CFR Part 24. If the LG does not have qualified staff to perform the required functions, it is recommended the LG obtains the services of a qualified consultant. Failure to comply with the requirements of the Uniform Act and 49 CFR Part 24 can result in a loss of federal participation in the entire cost of the project. In addition to the requirements the Uniform Act, 49 CFR §24.8 lists many related federal laws with which a successful LG program must be in compliance. Notably among these are Title VIII of the Civil Rights Act of 1968 (commonly known as the Federal Fair Housing Law) and Title VI of the Civil Rights Act of 1964.

Federal Requirements

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  1. Title II and Title III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 – Requires all projects involving the purchase of right of way using state or federal funds, or which are on the state highway system, to meet the requirements of this Uniform Act and amendments thereto.
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  2. 49 CFR Part 24 – Provides specific rules pertaining to real property acquisition and relocation matters. The purpose of this part of federal regulations “is to promulgate rules to implement the Uniform Act,” which is referenced above.
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  3. Title VIII of the Civil Rights Act of 1968
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  4. Title VI of the Civil Rights Act of 1964

State Requirements

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  1. Texas Property Code §21.046 – Requires a LG to establish a relocation compatible with the Uniform Act, as amended.

Required Practices

The relocation of individuals and businesses is a specialized and complex subject. The LG should coordinate early with TxDOT ROW and use the procedures described in the LGPM Guide.

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