1. Right-of-Way the right way
New Mexico Infrastructure Finance Conference November 25, 2018

2. Presented by
Meghan Bayer – New Mexico Right of Way Manager
Mack Dickerson, SR/WA, R/W- RAC, GRI – Vice President
Tierra Right of Way Services, ltd
25 Ways to Lose Your Money

3. Realty Specialist Dave Leighow FHWA-Olympia, wa
50 Ways to Lose Your Money
DISCLAIMER:
This presentation was created by Dave Leighow and presented at the IRWA conference in Seattle in I have updated some portions of this presentation to be concurrent with MAP 21 changes.
Mack Dickerson, SR/WA, R/W-RAC
Tierra Right of Way Services, Ltd.

4. Purpose of Presentation
To ensure federal funds are not lost due to actions taken in noncompliance with applicable laws and regulations.

5. Real property acquisition
Acquisition = Process of acquiring real property (real estate) or some interest in real property

6. Real property acquisition
INFRASTRUCTURE REQUIRES REAL ESTATE!

7. Real property acquisition
Identify Project Needs and Public Benefit Title Research Land survey (ROW Maps) Appraisal Appraisal Review Acquisition & Negotiations Payment to Property Owner Agency Takes Possession

8. Real property acquisition
U.S. Constitution
U.S. Statutes
Code of Federal Regulations
Agency Manuals
Acquisition does not need to be
federally funded for rules to apply

9. Statute and regulations
THE UNIFORM ACT
CODE OF FEDERAL REGULATIONS
The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended
******
Public Law
49 CFR Part CFR Part CFR CFR CFR 1.36

10. The Uniform act
Purpose: Fair, equitable and consistent treatment Not suffer disproportionate injuries or hardships Efficient and cost effective implementation Balance: Property Owner, Agency & Tax Payer

11. “Are there REALLY 25 ways to lose my federal funds?”

12. Yep—actually, there are more than 25 ways.
(Remember, the original presentation is 50 ways)
And, here’s the real problem:
You could lose PART or ALL of the funding for a particular property/parcel; and/or,
You could lose PART or ALL of your project funds—
EVEN IF THERE IS NO FEDERAL PARTICIPATION IN ROW!!

13. Following are 25 great ways to lose your Federal funds

14. Appraisal & Acquisition
You could lose your federal funds if you:
Don’t give the property owner an opportunity to accompany appraiser [49 CFR (c)]
Don’t base just compensation on an approved appraisal of the fair market value of the property [49 CFR (d)]
Don’t offer just compensation to property owner [49 CFR (d)]
Don’t give property owner written offer to purchase [49 CFR (d)]

15. Appraisal & Acquisition continued
You could lose your federal funds if you:
Don’t give property owner reasonable opportunity to consider offer [49 CFR (f), (h)]
Don’t offer to purchase uneconomic remnant from property owner [49 CFR (k)]
Don’t reimburse property owner for incidental expenses (closing costs, etc.) [49 CFR ]
Don’t offer to acquire buildings, structures, other improvements [49 CFR (a)]

16. Appraisal & Acquisition continued
You could lose your federal funds if you:
Don’t negotiate in good faith with property owner [49 CFR (f)]
Don’t provide written justification of an administrative settlement. [49 CFR (i)]
Don’t inform donating property owner of the right to just compensation based on an appraisal of fair market value [49 CFR ]
Don’t make payment to property owner before requiring the surrender of possession of the property [49 CFR (j) ]

17. Relocation assistance
You could lose your federal funds if you:
Don’t follow General Relocation Requirements [49 CFR ]
Insert Central/Yucca before/after photos

18. Relocation assistance
You could lose your federal funds if you:
Do ask the displacee to waive their relocation entitlement [49 CFR (f)]
Insert Central/Yucca before/after photos

19. Program management You could lose your federal funds if you:
15. Don’t acquire adequate interest to construct, operate, and maintain highway facility [23 CFR (b)]
16. Don’t certify that all right-of-way clearance, utility and railroad work is done before proceeding to construction [23 CFR (b)]
17. Don’t have adequate staff or organization to carry out Uniform Act and related right-of-way responsibilities [23 CFR (a)]

20. Program management continued
You could lose your federal funds if you:
18. Don’t have an approved right-of-way operations manual [23 CFR (c)]
19. Don’t provide adequate oversight of local public agency or consultant right-of-way activities [23 CFR (h)]
20. Don’t have adequate property management procedures [23 CFR ]

21. Program management continued
You could lose your federal funds if you:
21. Don’t evaluate safety impacts of disposals or leases [23 CFR (a)]
22. Don’t charge fair market value for disposals or leases [23 CFR (e)]
23. Don’t reinvest money from disposals in other Title 23 Projects [23 CFR (f)]
24. Don’t comply with State DOT policies and procedures [23 CFR (a)]
25. Don’t maintain adequate documentation (the “Almost Golden” rule)

22. The “Almost Golden Rule”
“If it ain’t documented, it didn’t happen!”
[23 CFR (e)]

23. The 26th way to lose your money:
Cut corners to save time and money!
Here’s some good advice:
“If you don’t have the money to do it right, you don’t have the money to do it at all!”

24. QUESTIONS?? Meghan Bayer, mbayer@tierra-row.com
Mack Dickerson,

25. Right of Way Certifications
Process and procedures

26. The Authority for the Right of Way functions are:
U. S. Constitutional Limitations of Power of Eminent Domain
Tribal/Local Governments Agency - Right of Way Handbook Volume VII
Tribal/Local Public Agency Handbook
49 CFR Part 24 – Department of Transportation
23 CFR Part 710 – Highways
Uniform Act of 1970

27. Uniform Act
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (Public Law )

28. When must a Agency follow the Uniform Act?
When any phase of a project is federally/state funded, and
Real property is acquired, and/or
Property owners and/or tenants are displaced as a direct result of land acquisition, demolition or property redevelopment

29. Right of Way Certification Process if project has acquisition: Takes, CME’s or TCP’s
Title (Qualified Title Company)
Chain of Title – 33 years Search for each parcel affected for ROW Acquisition (Takes or CME’s)
Last deed of record – (TCP’s)
Mapping (Professional Engineer/Surveyor)
Review and Approved by Lands Engineering (Richard Garcia’s Group)
Valuation (Appraisal & Appraisal Review)
LPA’s working with Ricky Mok for review and approval

30. Right of Way Certification Process Cont’d
Acquisition & Condemnation (Qualified Staff)
LPA’s are required to provide qualifications for all acquisition staff to the ROW Bureau for review and approval
LPA’s shall notify the ROW Bureau of how they will be handling condemnation proceedings prior to beginning acquisition activities. Qualified staff attorneys or qualified fee attorneys with experience in eminent domain are highly recommended
Project Certification

31. Right of Way Certification Request
Following completion of all right of way activities (Title search, Survey/mapping, Appraisals and Review, Acquisition, and Relocation) and prior to receiving authorization to advertise the physical construction for bid, the LPA’s shall submit a formal request for “Final Right of Way Certification” to NMDOT Government Coordinator, prepared on the Agencies letterhead, signed by the person in charge of the project and addressed to the Right of way Bureau Chief.

32. Right of Way Certification Request cont’d
The request must contain the following:
Scope of work/Project termini
That there is no right of way necessary for the project and the project is being constructed within the existing right of way (or)
Certify that all of the necessary new right of way for the project has been fully acquired. (i.e. 24 takes, 10 CME’s and/or 42 TCP’s) in accordance with
23 CFR (c)(1)

33. Right of Way Certification Request cont’d
Statement regarding Relocation
Statement regarding Encroachments (how many; All must be addressed)
Statement regarding hazardous material and contamination
Must provide ISA Determination Letter and the Environmental Clearance Letter