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Section 3: Right of Way Appraisals and Acquisition

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Overview

Appraisals and right of way (ROW) acquisitions must be done according to state and federal guidelines. ROW cost is a significant factor in the department’s project development process. The district right of way administrator assigns a pre‑approved, certified appraiser.

Appraisal reviews should be conducted after appraisals are completed and before beginning parcel acquisition. The ROW acquisition process involves making offers based on appraisal price, negotiating, and using eminent domain when required.

Relocation assistance involves helping with the relocation of residents and business owners being displaced due to ROW acquisition. This activity may take significant time and should be incorporated into the project completion schedule.

Improvements on ROW should be removed, sold, or demolished before construction. ROW clearance and encroachment certifications must be prepared and submitted before a project can be advertised for construction bids. The District Engineer signs project certifications which will be part of the project File of Record. A copy of the signed certifications are submitted, with other supporting documents, to the Design Division for PS&E letting document review and processing.

This section includes information on the following tasks listed in approximate chronological order:

40300. Obtain contractual agreements with local public agencies

40310. Perform advance acquisition for qualified parcels

40320. Obtain authority for right of way project release

10400. Review scope, cost, and staff requirements of project development

40330. Identify impediments to parcel acquisition

40340. Prepare and execute joint-use/multiple-use agreements

40350. Appraise parcels

40360. Implement right of way acquisition process

40370. Implement relocation assistance program

40380. Dispose of improvements

40390. Prepare right of way and encroachment certifications

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40300: Obtain contractual agreements with local public agencies

Description. Local public agencies are often required to participate in transportation project development by performing or contracting directly for the acquisition of rights of way (ROW) and required adjustments of utility facilities. When this occurs, TxDOT and the local public agency should have already entered into a Right of Way Agreement to contribute funds, which identifies each party’s responsibilities. Appraisals and ROW negotiations and acquisitions must be done according to federal and state guidelines.

Pertinent Project Types. Projects involving ROW acquisition

Responsible Party. Project manager

Subtasks.

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  • Review previously executed advance funding agreements.
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  • District right of way administrator and director of transportation planning and development decide how, and by whom, ROW is to be acquired.
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  • Give local entity approved ROW maps, plats, parcel descriptions, and notify them to begin acquisition, if applicable.

Helpful Suggestions.

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  • Standard agreement forms are available in the TxDOT ROW Manual for ROW acquisition by cities or counties.

Critical Sequencing.

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  • Environmental clearance and ROW documents (e.g., maps, plats, and legal descriptions) must be completed before authorizing a local public agency to begin ROW appraisal and acquisition.

Authority.

Resource Material.

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40310: Perform advance acquisition for qualified parcels

Description. Under qualifying circumstances, a very limited number of right of way (ROW) parcels may be acquired early, prior to the proper time for acquisition of all parcels.

Early Acquisition. Parcels may be acquired before obtaining the authority for right of way project release and before environmental clearance; however, it must be stated that transportation route alternatives are still being studied and that results of the study may show the acquired property might not be needed for the ultimate facility.

Requirements of early acquisition are described in the TxDOT Right of Way Manual. See Task 40320: Obtain authority for ROW project release. Parcels that may qualify for early acquisitions involve one of the following:

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  • Land donations
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  • Hardship cases where the landowner has a unique hardship circumstance that is not common to all property owners. The hardship may be for health, safety, or financial reasons. The department has to do an objective evaluation to determine whether to accept the hardship acquisition request.
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  • Protective acquisition ‑ where imminent parcel changes in land use are planned, which would substantially increase the cost or effort to construct a transportation facility within the subject ROW.

Notices to property owners or occupants shall be personally served or sent by certified or registered first-class mail, return receipt requested, and documented in the department files.

Advance Acquisition. The commission may “purchase an option” to acquire property for possible use in connection with a transportation facility before a final decision has been made to use the property for a transportation facility. The option to acquire the property may not expire later than five years from the date the option was purchased and may be renewed by agreement.

Advance acquisitions may not be made by condemnation.

Pertinent Project Types. Projects requiring additional ROW and involving parcel donations, hardship cases, or protective acquisition

Responsible Party. District Right of Way Administrator

Subtasks.

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  • Determine, through communication with property owners and local officials, which parcels may be considered for early acquisition due to land donations or protective acquisition. The project manager may do this work.
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  • Determine the need for early acquisition after receiving a request for hardship acquisition.
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  • Obtain approval from ROW Division for early acquisition.
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  • Obtain title reports and prepare parcel plat and property description.

Authority.

Resource Material.

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40320: Obtain authority for right of way project release

Description. The Right of Way Division authorizes a right of way (ROW) project once all of the following conditions are complete:

ROW project authorization is communicated to the districts by letter notifying them of ROW project release.

A ROW CSJ (RCSJ) may be obtained after the commission authorizes the project for DEVELOP phase.

Pertinent Project Types. All projects requiring ROW acquisition or utility adjustments

Responsible Party. District Right of Way Administrator

Critical Sequencing.

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  • With the exception of early acquisition, no ROW costs (including utility adjustments) may be incurred before ROW project release.

Resource Material.

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40330: Identify impediments to parcel acquisition

Description. Impediments to parcel acquisition are things that could adversely affect the ability to acquire right of way. These impacts may have high costs for major utility relocation, wetland mitigation, hazardous material site cleanup, acquired improvements, or could include parcels without clear record title, residents needing relocation, known contentious property owners, or severance damages.

The project manager, project engineers, and acquisition specialists should meet to discuss issues that might significantly affect the project schedule. They should prepare a prioritized schedule for acquiring parcels and a list of issues pertinent to each parcel.

Pertinent Project Types. Projects requiring additional right of way whether fee title or easement

Responsible Party. Project manager

Critical Sequencing.

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  • This task should be done immediately before starting parcel acquisition. It will aid the acquisition team in prioritizing the parcel acquisition sequence.
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40340: Prepare and execute joint-use/multiple-use agreements

Description. Joint-use agreements are executed to permit TxDOT to use right of way (ROW) owned by public entities (e.g., cities and counties) and quasi-public entities (e.g., utility and railroad companies) under certain conditions. In most cases these entities will not sell ROW outright but will agree to share the ROW (e.g., shared ditch agreements). Sometimes ROW should not be purchased outright because this may involve assuming ownership and maintenance of utilities or other improvements within that ROW. Agreements can be used instead of buying ROW, such as railroad right of way, which is extremely difficult to buy. The agreement allows TxDOT to use the property subject to compatibility with use by the fee owner.

Multiple-Use Agreements are executed to allow use of TxDOT ROW for other than highway purposes. These agreements are executed with political subdivisions, state or federal agencies for public use of the ROW. These agreements are essentially a license to allow others to use TxDOT ROW. As an example, “unoccupied airspace” beneath elevated structures can be made available for parking lots, hike and bike trails, boat ramps, landscape areas, recreational, or other similar public facilities that may be operated without detriment to, or interference with, the utility of the highway.

Typically, joint-use agreements are between TxDOT and quasi-public entities; and multiple-use agreements are between TxDOT and public entities. Some of these agreements may have been prepared and executed during preliminary design preparation. Right of Way Division is the coordinating division for preparing multiple-use agreements. See Task 20210: Prepare and execute additional agreements.

Pertinent Project Types. Projects requiring interests in property owned by public and quasi-public entities

Authority.

Responsible Party. District Right of Way Administrator or Director of Maintenance

Subtasks.

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  • Identify the need for an agreement versus outright ownership of property. Coordinate with project manager.
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  • Prepare property description for ROW map.
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  • District submits joint-use agreements to the Right of Way Division for review and execution.
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  • District submits multiple-use agreements for highway projects that are in the design or construction phase to the Design Division for review.

Critical Sequencing.

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  • All property interests, including agreements, must be obtained before TxDOT activity may begin on a property.

References.

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40350: Appraise parcels

Description. After obtaining authority for right of way project release from the Right of Way Division, the district selects an approved, certified appraiser from the TxDOT statewide list to determine the market value of property to be acquired. See Task 40320: Obtain authority for ROW project release.

The appraiser conducts a site analysis, prepares an appraisal report stating the market value of the property, and determines the total compensation that should be paid to the property owner for real property interests (e.g., land, easements, and improvements).

District review and approval of all parcel appraisals is required. The district may request that the Right of Way Division assist in the review and approval of appraisals. The Right of Way Division has review and approval authority for values of acquisition by condemnation.

Pertinent Project Types. Projects requiring additional ROW whether fee title or easement

Responsible Party. District Right of Way Administrator

Subtasks.

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  • Obtain authority for ROW project release from the Right of Way Division.
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  • Charge all ROW Division-approved right of way acquisition costs to the ROW CSJ.
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  • Arrange for a Registered Professional Land Surveyor (RPLS) to survey and monument the corners of properties to be appraised.
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  • Conduct preappraisal contact with the property owner.
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  • Select appraisers from the list of approved appraisers.
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  • Issue appraisal work authorization for each parcel.
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  • Provide property description and parcel plat to appraiser.
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  • Appraiser prepares appraisals of required property interests.
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  • Review appraisals. Request assistance from the Right of Way Division, if needed.
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  • If acquisition is by condemnation, forward appraisals to the Right of Way Division.

Critical Sequencing.

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  • The appraisals should be started immediately after obtaining the authority for ROW project release from the Right of Way Division.

Authority.

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  • Uniform Standards of Professional Appraisal Practice (USPAP) as promulgated by the Appraisal Standards Board (ASB) of the Congressionally authorized nonprofit Appraisal Foundation.

Resource Material.

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40360: Implement right of way acquisition process

Description. The right of way (ROW) acquisition process involves negotiating terms and conditions of acquisition, making offers based upon appraised value, and using eminent domain when required. The acquisition process must be accomplished according to the TxDOT Right of Way Manual. Sometimes, property interests other than fee title may be required (e.g., easements, temporary easements, joint-use and multiple-use agreements). See Task 40340: Prepare and execute joint-use/multiple‑use agreements.

Pertinent Project Types. Projects involving ROW acquisition

Responsible Party. District Right of Way Administrator

Helpful Suggestions.

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  • Prioritize the sequence of parcel acquisition before beginning the acquisition process.
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  • Utility adjustments cannot be made until impacted parcels are obtained. A single holdout parcel located in a string of adjacent parcels can prevent utilities from being adjusted within a whole segment of roadway. Parcels involving such utilities need to be prioritized.

Critical Sequencing.

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  • Right of way acquisition is accomplished after ROW appraisals are performed and before TxDOT work activity can begin on the property.

Authority.

Resource Material.

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40370: Implement relocation assistance program

Description. Residents and business owners who will be displaced as a direct result of the acquisition of the real property, in whole or in part, for a construction project are eligible for relocation assistance. Engineering and environmental staff members identify these individuals during preliminary design. Later, district staff provide relocation assistance information to these individuals as part of the project’s public involvement efforts.

Pertinent Project Types. Projects requiring right of way acquisition

Responsible Party. District Right of Way Administrator

Subtasks.

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  • Identify and follow through with any commitments made in the project’s environmental documents with respect to relocation assistance.
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  • Identify eligible owners and tenants.
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  • Send a notice to vacate to all displacees still occupying the project ROW at least 90 days before the intended date to vacate. An additional 30-day notice may be required after the State takes possession of the property.
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  • Provide assistance, as required and allowed by law, in the relocation of displaced individuals.

Helpful Suggestions.

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  • Only trained relocation experts should discuss this issue with property owners.
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  • Implementing the relocation assistance program and delivering notices to vacate must be done within the overall project schedule. Relocating individuals can take much time to complete.

Authority.

Resource Material.

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40380: Dispose of improvements

Description. Improvements on right of way acquired by the department are considered either salable or nonsalable. The Texas Facilities Commission (TFC) has given the department delegated authority to handle all right of way improvement sales. Nonsalable improvements are items that have little or no value, as determined in the appraisal process. Disposal can be included in the construction contract or performed by maintenance forces.

Pertinent Project Types. Projects requiring ROW acquisition

Responsible Party. District Right of Way Administrator

Subtasks.

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  • Identify improvements to be removed from the ROW.
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  • If field surveying of improvements to be removed is needed before ROW acquisition, obtain permission for right of entry. Permission for right of entry or other written evidence of permission must always be obtained before entering private property. See Task 20230: Obtain right of entry.
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  • Develop a plan for removing improvements, if needed. For example, a house containing asbestos would need a containment plan.
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  • Verify that the State has title to the right of way parcel and is in possession of the improvements to be removed.
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  • For salable improvements, submit request for approval to TxDOT General Services Division, Property Management Section.
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  • Identify the most economical way to dispose of nonsalable improvements.

Critical Sequencing.

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  • Disposal of improvements cannot begin until the State owns the improvements.
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  • This task should be completed before construction begins unless disposal is in the construction contract.

Helpful Suggestions.

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  • Dispose of improvements, particularly buildings, as soon as possible to prevent reoccupation and additional relocation expense.

Authority.

Resource Material.

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40390: Prepare right of way and encroachment certifications

Description. In general, encroachment certifications are statements signed by the district engineer and included in the PS&E transmittal letter. A right of way (ROW) certification certifies that required ROW acquisition is complete, or will be complete, by a certain date. An encroachment certification generally certifies that the ROW is free of encroachments, or if they remain temporarily, they will not pose a safety or constructability conflict during construction. ROW encroachments, when identified, must be removed from the ROW by the owner of the encroaching property.

Federal policy requires bid proposals to identify the status of required ROW acquisition. If ROW acquisition is incomplete before bid advertisement, the district must give anticipated acquisition completion dates to the Design Division that must include the status of acquisition and the effect on construction. A map showing uncleared parcels may be required. These dates must be as accurate as possible since delays in ROW acquisition may result in contractor delays and claims.

Pertinent Project Types. All projects

Responsible Party. Project manager

Subtasks.

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  • Research status of ROW acquisition and removal of identified encroachments.
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  • Prepare ROW encroachment certifications. See the PS & E Manual, Chapter 5.
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  • The District Engineer is responsible for the accuracy and execution of all ROW and encroachment certifications.
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  • Submit certifications with the PS&E Transmittal Data (Form 1002) to the Design Division along with PS&E documents.

Critical Sequencing.

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  • ROW and encroachment certifications are required before a project can be advertised for construction bids.

Resource Material.
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