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Section 3: General Requirements for Advance Acquisition (for State)

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Requirements

Advance acquisition must not influence the environmental review of a project, a decision regarding the need to construct the project, or selection of a specific location.

In recommending advance acquisition, give consideration to the ability to secure possession after procurement, since acquisition under these conditions could be far in advance of a need for right of way. Other activities, such as demolition, construction, or utility relocation cannot be performed prior to environmental clearance.

If a property owner initially makes a request for an advance acquisition on a hardship basis, the property (parcel) owner should be initially advised that, in the event the owner is not willing to close by negotiations (accepting the state's offer and/or administrative settlement), the acquisition process will not continue on to the eminent domain process at that time, but would have to wait until the environmental approval for the entire project had been obtained.

Submissions from the District Engineer to the Chief Engineer requesting authority for advance acquisition must contain the following information:

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  • The project should be an approved project within the UTP and no more than 6 years away from its “Ready to Let” date.
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  • If a project is outside of the UTP it will need a specific Commission minute order granting the ability to use advance acquisition.
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  • The legal descriptions for the parcel(s) to be acquired should be completed.
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  • Funding for the advance acquisition should have been requested and accounted for in the latest ROW LAR.
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  • Only state funds may be used for the advance acquisition, although a matching federal credit may be sought once environmental clearance is achieved and the property is incorporated into the project.
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  • The community impacts of acquiring the parcels must be determined prior to the acquisition.
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  • All advance acquisitions should be approached as if federal funding will be requested for a project (referred to in the CFR as “State-funded Early Acquisition Eligible for Future Credit”), thus federal requirements to receive federal funding or a federal matching credit under the requirements of 23 CFR 710.501(c)(1)-(5) must be followed, including:
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    • The advance acquisition cannot influence (according to the state or the FHWA) the environmental review process for the transportation project including:
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    • The property being acquired does not consist of any land protected under Section 4(f) of the Department of Transportation Act of 1966 (i.e. publicly owned land from a public park, recreation area, wildlife and waterfowl refuge, or any land from a historic site of national, state, or local significance as so determined by such officials).
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    • The acquisition and relocation of any displaced person or business must comply with all federal and state laws including the Uniform Relocation Assistance and Real Property Acquisition Act.
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    • The acquisition complies with Title VI of the Civil Rights Act.
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  • Eminent domain cannot be used to acquire property prior to environmental clearance.
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  • Parcels with the presence or likelihood of environmental contamination or other undesirable conditions on the parcel that pose a risk of increase cost to TxDOT for remediation or that could adversely affect construction of the project should not be acquired by advance acquisition.
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  • The property being acquired does not consist of any land protected under Texas Parks and Wildlife Code, Chapter 26 (i.e. public land that is designated and used as a park, recreation area, scientific area, wildlife refuge, or historic site.)
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  • All project activities proposed to take place on the parcel will be evaluated as part of the environmental review of the transportation project.
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  • No activity that could have an adverse environmental impact (e.g., grading, clearing, demolition of structures, moving utilities) will take place on the parcel(s) prior to completion of the environmental review for the transportation project.
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  • Everyone with an ownership interest in a parcel, including all tenants, must agree to the advance acquisition and sign the deed.
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  • Local public agencies will not be required to participate in right of way acquisition costs for parcels acquired through advance acquisition until the project is environmentally cleared and the parcel is incorporated into the project. If a lump sum agreement for right of way participation is executed prior to a parcel being incorporated into a project and the environmental clearance, then the local public agency will not have to participate in any parcel acquired through advance acquisition.
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