236.3 Administration: Difference between revisions

assist in the scheduling of right of way projects and preparation of estimates for right of way, relocation, and incidental costs of acquisition; assign right of way staff to participate on core teams and project teams.

monitor right of way project progression in accordance with the Statewide Transportation Improvement Program, assuring that all phases of the right of way function are initiated with appropriate lead time for completion as scheduled;

prepare bid proposals for submission to title companies, abstract companies, etc., for furnishing Phases 1, 2, and 3 title information, including the scheduling of same to assure the smooth flow of information necessary for preparation of plans, appraisals, negotiations and closing transactions;

prepare and submit agreements as necessary for Commission approval and execution;

schedule and submit requests for program approval, acquisition authority and funding for right of way projects, including necessary estimates, plans, relocation studies, etc.;

prepare and update monthly project status reports;

prepare all deeds, write and/or check legal descriptions for acquisition of land, access rights, property rights and easements and the disposal of excess right of way, excess land, uneconomic remnants and maintenance sites;

obtain district Public Land Surveyor’s (PLS) review of legal descriptions for acquisitions and disposals. For additional information see 238.2.1.6 and 236.4.6.

prepare and furnish Controller the correct accounting identification and documentation for preparation of payrolls for acquisition of right of way, relocation payments, and incidental expenditure in compliance with established right of way and accounting procedures; Sam II Chart of Accounts, G. Object Codes

receive and distribute vouchers in payment for right of way acquisition and related programs;

receive and submit receipts from sales of real estate, improvements, and deposits for performance;

receive and submit receipts for the initial rent and lease accounts. All other rent and lease payments should be sent direct to Controller;

receive, process and distribute correspondence as necessary for the district and Right of Way Division operation;

obtain categorical exclusion determination in connection with all airspace agreements, lease agreements, disposals, hardship/protective acquisitions, and relinquishments for compliance with 23 CFR 771.117 (d).

236.3.1.2 Steps for Completing Categorical Exclusion (CE) Review

District right of way will complete Section A Categorical Exclusion Review (Form 236.3.1.2). Submit with attachments to the Design Division, Environmental Section for their determination that this action meets the criteria for a CE.

The Design Division, Environmental Section will complete Section B of the form to arrive at CE determination and return to District right of way.

On Interstate and Major Bridge projects district right of way will send the CE Request to the Right of Way Division who will submit the completed Form 236.3.1.2 to the Federal Highway Administration for their review and approval.

District right of way will submit the completed form with all other necessary documents to Right of Way Division for review and approval of airspace agreements, lease agreements, disposals, and hardship/protective acquisitions.

In addition to coordinating with the various districts on the above, it is Right of Way Division’s responsibility to develop the administration policies and procedures necessary for compliance with MoDOT needs and Federal Highway Administration requirements.

The following sections of this article describe the policy and procedure requirements for the administration responsibilities as listed above.

236.3.2 Programming and Right of Way

Key Points

236.3.2.1 Programming

MoDOT’s program for right of way acquisition is included in the Statewide Transportation Improvement Program (STIP) as prepared and assembled by the Transportation Planning Division and annually approved by the Missouri Highway and Transportation Commission. The districts are responsible for identifying those projects that will be included in the STIP and completing the SIMS Forms with the appropriate project information.

The program is MoDOT’s right of way and construction plan and is based on available funds from all sources of income, improvement and rebuilding needs throughout the state, and priorities and capabilities of the various districts and divisions of the department.

The program is a carefully prepared and comprehensive schedule for a coordinated plan of right of way acquisition and construction for the various systems within the department's network of highways.

It is the responsibility of district right of way to furnish accurate estimates of the funds needed for the proposed right of way acquisition. The final program is presented annually to the Missouri Highway and Transportation Commission for review and approval.

The Statewide Transportation Improvement Program is the definite control over right of way acquisition insofar as scheduling and funding is involved. Extreme care must be taken to ensure that each job reflected in the program contains the latest available estimate of cost (Note: the programmed amount cannot be changed if the project is in the current fiscal year) and that the capabilities of the district staff are such that acquisition reflected in the program can be accomplished as planned.

236.3.2.2 Yearly Review of Program

Each year the districts identify those projects that will be included in the STIP. Each job estimate should be carefully reviewed at this time and revised estimates should be furnished to the project manager. Careful planning prior to this review should eliminate the necessity of numerous revisions to the program subsequent to Commission approval of a project for the active fiscal year.

The programmed amounts shown in the STIP for the current fiscal year cannot be changed. It is important to make sure that at some point during the fiscal year an "A-Date" is issued or the programmed funds will not rollover to the next fiscal year. See 236.3.4 for the requirements necessary for issuing an A-Date. The programmed right of way dollars do not have to be spent during the fiscal year in which they are programmed. Once an A-Date is issued, the funds will be rolled over to subsequent years until the project is cleared.

236.3.2.3 Construction and Right of Way Program Control

The Right of Way Division is authorized to acquire right of way for the amounts on the Commission-approved program, as long as the total acquisition expenditures do not exceed the total approved programmed amount. When the total expenditures will exceed the total Commission-approved amount, a revision to the program is to be considered.

236.3.2.4 Revision of Programmed Amounts

It is up to the project manager and district right of way to identify any needed revisions to the right of way programmed amount contained within the STIP.

If there is a significant change in the right of way cost estimate for a project, district right of way should advise the project manager. The project manager advises the planning coordinator who balances the district STIP budget. If additional funds are needed for a project, the planning coordinator coordinates any funding shifts within the district STIP budget. For projects that come out of the district STIP budget, the project manager or planning coordinator completes a SIMS form, which is forwarded to the district engineer for approval. Changes that only affect the districts STIP budget only require approval by the district engineer.

Major projects are funded at least partially from statewide funds and are fixed by project. Changes to these projects require approval from both the district engineer and the Transportation Planning Director.

236.3.3 Right of Way Plan Review

Key Points

236.3.3.1 Right of Way Plan Review

Plans for right of way acquisition are prepared by district design and approved by the district engineer in the respective districts.

District right of way shall review plans and coordinate any requirements or recommendations with district design. When the plans are finalized and accepted for right of way use, and an A-Date is requested by submittal to the Right of Way Division by the district along with one set of approved right of way plans. District design will furnish copies of any subsequent revisions to the plans to district right of way with a transmittal letter that individually identifies the revisions being submitted. Right of way plans as acquired will be furnished to the Right of Way Division with the submittal of the Right of Way Clearance Certification. It is essential that cooperation, communication and coordination between district design, including the transportation project manager and core team members, and district right of way be maintained in the development of plans and the estimate of costs for right of way acquisition.

For more information on right of way plan development see 236.13.1.7.

236.3.3.2 Right of Way Cost Estimates

All right of way cost estimates shall be prepared by district right of way upon request from district design and/or the transportation project manager. Requests may take on a format agreeable to the parties involved, and may be for individual jobs or lists of unchanged projects that require update.

If right of way were to initiate a cost estimate activity prior to a request from district design or the transportation project manager, project status may be documented on Right of Way Form 3-3.3C, to satisfy the request requirement.

A. Plan Detail Necessary for Right of Way Cost Estimates

All right of way cost estimates shall be prepared by district right of way in coordination with district design and the transportation project manager.

If plans are not available, district design shall furnish the most complete project information available including, but not limited to, the project development stage, type of improvement being considered, the length of the project, the widths of the proposed new right of way, the type and location of anticipated interchanges, the type and extent of access controls and a recent aerial photograph or map of the area with the proposed line or corridor of improvement drafted in as much detail as possible. If the plans have changed since the last estimate, or estimates of multiple scenarios of a project are sought, district design should identify changes and assign scenario titles, so that the project history and growth of each scenario can be tracked.

B. Estimates for Project Initialization

Estimates at the Project Initialization stage should be prepared in as much detail as possible from the limited scope that is available at the time, with the understanding that the programmed amount may not require updating until the project is placed on the approved Statewide Transportation Improvement Program (currently the 5 year program) several years later.

Updating of projects beyond the approved program ("future projects" outside 5 years) may require individual attention by district right of way, or may be updated by factors. A determination of what detail of update is necessary for the future projects will be made on a statewide basis, prior to each programming cycle.

C. Estimates for Projects on the Approved Program

Projects within the approved program (currently the five year program) should be prepared in as much detail as possible from the design information that is available at the time. This may include projects in the Project Initialization stage. Estimates for projects within the approved program must be updated at least annually, at milestones of plan development, and at the Acquisition Complete stage.

Right of way cost estimates are prepared and updated annually, to correspond with programming requirements for the fiscal year ending June 30. Estimates may be prepared or updated after September first of each year for the upcoming estimate cycle.

D. Use Of Right of Way Forms

All right of way cost estimates will use either Right of Way Cost Estimate Worksheet (Form 3-3.3A), or Acquisition Complete Cost Estimate Worksheet (Form 3-3.3B). Estimates based on comparative unit cost methods (cost per mile, etc.) may be prepared on a letter or memo format identified as a replacement for the Worksheet (Form 3-3.3A) in the Project Initialization and Conceptual Plan/Location Study Completion stages.

The estimate conclusions for right of way and incidentals will be transmitted to district design using Right of Way Cost Estimate Transmittal (Form 3-3.3C). The following instructions assure procedural uniformity by the 10 districts in the development and submission of right of way cost estimates.

The Right of Way Cost Estimate Transmittal (Form 3-3.3C) will be sent to the district design engineer and the transportation project manager. The Right of Way Division will receive copies at the Right of Way Plan Completion and Acquisition Complete project stages.

E. Use of Forms for Each Stage of Project Development

1. Project Initialization

This estimate is made when a project is first placed on the Statewide Transportation Improvement Program and may stay in this plan development stage through subsequent programming cycles.

Information for making a right of way estimate at this stage is normally tentative since the exact location, scope, design, extent of right of way required, damages, and relocation have not been determined. Utilizing information provided by district design, prepare a Right of Way Cost Estimate Worksheet (Form 3-3.3A) and Right of Way Cost Estimate Transmittal (Form 3-3.3C). In the transmittal form, provide explanation for any change in the cost estimate conclusion from the previous estimate if any.

Overall comparative unit costs (cost per mile, for example) may be used, without use of a worksheet, if a highly similar completed project is available for comparison. If a unit cost comparison is used the estimate shall reflect costs for right of way and incidentals separately and shall include data on the comparable project and calculations leading to a cost conclusion.

2. Conceptual Plan/Location Study Completion

This estimate is prepared by district right of way for the various alignments and scopes of work being considered by district design.

Utilizing information provided by district design, prepare a Right of Way Cost Estimate Worksheet (Form 3-3.3A) and Right of Way Cost Estimate Transmittal (Form 3-3.3C). The cost estimate for each alternative alignment shall have a separate worksheet and transmittal. In the transmittal, provide explanation for any change in the cost estimate conclusion from the previous estimate.

Overall comparative unit costs (cost per mile, for example) may be used, without use of a worksheet, if a highly similar completed project is available for comparison. If a unit cost comparison is used the estimate shall reflect costs for right of way and incidentals separately and shall include data on the comparable project and calculations leading to a cost conclusion.

3. Preliminary Plan Completion

This estimate is prepared after final determination of location has been made and a preliminary plan is furnished to district right of way by district design. The preliminary plan may indicate areas of taking and parcels to be affected.

Utilizing preliminary plans provided by district design, prepare a Right of Way Cost Estimate Worksheet (Form 3-3.3A) and Right of Way Cost Estimate Transmittal (Form 3-3.3C). In the transmittal, provide explanation for any change in the cost estimate conclusion from the previous estimate.

4. Right of Way Plan Completion

This estimate is made when approved right of way plans are received and acquisition is to begin.

Utilizing approved right of way plans provided by district design, prepare a Right of Way Cost Estimate Worksheet (Form 3-3.3A) and Right of Way Cost Estimate Transmittal (Form 3-3.3C). In the Right of Way Cost Estimate Transmittal provide explanation for any change in the cost estimate conclusion from the previous estimate. At this stage Right of Way Division shall be provided a copy of the Right of Way Cost Estimate Transmittal (Form 3-3.3C).

5. Acquisition Complete

This estimate is prepared when the acquisition of right of way is complete and the clearance certification is being transmitted to Right of Way Division. There will normally still be some outstanding costs, such as relocation payments, pro-rata tax reimbursements and the final result of condemnation action that shall be estimated and included.

Prepare an Acquisition Complete Cost Estimate Worksheet (Form 3-3.3B) and Right of Way Cost Estimate Transmittal (Form 3-3.3C). In the transmittal, provide explanation for any change in the cost estimate conclusion from the previous estimate.

The Right of Way Division shall be provided a copy of the Right of Way Cost Estimate Transmittal (Form 3-3.3C).

236.3.3.3 Preparation of Right of Way Cost Estimate Forms

Each right of way cost estimate shall be developed by use of Right of Way Cost Estimate Worksheet (Form 3-3.3A), or Acquisition Complete Cost Estimate Worksheet (Form 3-3.3B), or an appropriately supported estimate memo if an overall comparative unit cost method is used, in accordance with the following instructions. Each district shall maintain records sufficient to document all estimated costs. A list of improvements anticipated to be affected is to be retained in each file. Other required documentation will include rates or indicators resulting from an analysis of previous projects, market information, assessor's records, statistical reports, and cost manual information along with reasons for selection of specific data and calculations used to reach conclusions. Abstracted costs may be adjusted to fit circumstances, with the requirement that all such adjustments be explained.

A. Preparation of Right of Way Cost Estimate Worksheet

1. Land, Improvements, Property Rights and Damages

a. Land

Land use may be as general as agricultural, residential, commercial, industrial or as specific as available project scope information allows. Right of way areas to be acquired shall be provided by district design. Estimated unit values must be supported by reference to market information such as confirmed sales, listings or documented discussions with realtors, lenders or other real estate professionals, or by historic acquisition data.

b. Improvements

This cost may be estimated by itemizing improvements that are expected to be acquired and estimating the value of each. Alternately, the total number of improvements at an average unit value may be used. A list of affected improvements shall be attached to the worksheet. If individual improvement values are estimated they shall appear on the improvement list. Estimated values shall be supported by reference to sales, listings, or documented discussions with Realtors, lenders or other real estate professionals. Other acceptable sources of support include cost manuals with citation of section, page number and revision date, reference to assessors' records and historic acquisition data. To arrive at improvement value, supported land value must be deducted from the dollar value of improved sales, listings or acquired properties.

Fence to be acquired may be estimated as a lump sum for the project, or on a parcel basis. Acceptable support for fence cost includes reference to a fence cost schedule, bid or contract, or to a cost manual citing section, page number, revision date or other identifying information.

c. Property Rights and Damages

Values of access rights, easements and consequential damages may be calculated as a percentage of the Subtotal of Land and Improvement Value as estimated above. An overall percentage for the project may be used if the estimate is being made without right of way plans. This percentage may be derived by analysis of Review of Appraisals and Approval of Just Compensation (Form 6.4.3) or Right of Way Parcel Acquisition Parcel forms of a similar completed job as follows:

Total the amounts in the Total Land and Major Improvements field of all Form 6.4.3's or the Land and Improvement Amount of the Right of Way Parcel Acquisition Parcel forms for all parcels of a given project.

Total the amounts in the Damages to Remainder field of all Form 6.4.3's or Right of Way Parcel Acquisition Parcel forms.

Divide total damages to remainder by total land and improvement amount.

After right of way plans are available, effects to individual parcels may be considered and supported by reference to costs of specific acquired parcels.

2. Administrative Settlements

The district experience in administrative settlements is the total of settlement amounts above approved offers, including administrative settlements for heritage and homestead payments for a given year divided by the total of approved offers for the same period, expressed as a percentage. This percentage may then be applied to the sum of paragraphs (a), (b) and (c) above to arrive at the total administrative settlement amount for the project being estimated.

Alternately, the percentage of administrative settlement dollars above the total approved amounts for a given comparable project may be applied to the sum of paragraphs (a), (b) and (c) above.

Data sources must be cited and calculations shown.

3. Condemnation

This is the amount by which project costs may be expected to increase as a result of condemnation. Condemnation history must be analyzed on a per-project basis. Divide the amount by which commissioners' awards and legal settlements exceed approved offers for condemned parcels by the total of approved offers for a cleared project to produce the percentage by which condemnation may be expected to increase acquisition cost. This percentage must be applied to the sum of paragraphs (a), (b) and (c) above.

Projects selected for comparison to the project being estimated should be the most similar available, preferably in the same court jurisdiction.

For the Acquisition Complete estimate, enter the difference between commissioners' awards and approved compensation for condemned parcels adjusted, if necessary, for anticipated legal settlements or jury awards. Support any adjustments. Data sources must be cited and calculations shown.

4. Relocation Assistance

This is the estimated cost of all anticipated relocation assistance payments. Relocation costs may be estimated by comparison of the subject project to a previous project which had similar relocation elements, with the average payment per relocation parcel for the completed project multiplied by the anticipated number of relocation parcels on the project being estimated. Care should be used in selecting the project for comparison. In later project stages relocation cost may be estimated on a per parcel basis with support. Alternately, a typical or average relocation cost for elements like residential, business, etc. may be developed and applied.

Additional support data is available in the Annual Relocation Statistical Report (Uniform Act Report) described in 236.8.6.6.

5. Incidentals Costs

Incidental costs may be estimated by multiplying the subtotal of the costs estimated in Paragraphs (1) through (5) above by the annual percentage for the district as shown on the Summary, Percent of Incidental Expenditures to Total Dollars Expended in the Right of Way Division Annual Statistical Report.

Incidental cost may also be expressed as a cost per parcel, derived from completed projects exhibiting similar characteristics in terms of location, number of parcels and complexity. The comparable project must be cited along with calculations of the historic incidental cost per parcel.

B. Preparation of the Acquisition Complete Cost Estimate Worksheet

Follow the directions shown on the form to prepare the Acquisition Complete Cost Estimate Worksheet (Form 3-3.3B).

C. Preparation and Filing of the Right of Way Cost Estimate Transmittal

Submit the Right of Way Cost Estimate Transmittal (Form 3-3.3C) to the district design engineer and the transportation project manager. Current and historic right of way worksheets and supporting documentation may be maintained with a central project file within district design or in a separate right of way project file. A matching Form 3-3.3C should be maintained in the central project file and the right of way project file, regardless if the files are physically combined or separate.

236.3.4 Right of Way Acquisition Authority and Project Funding

Key Points

236.3.4.1 General

The following procedures for requesting authority for right of way acquisition activities and funding shall be used for state and federally funded right of way projects.

Prior to submitting a request for acquisition authority, the transportation project manager (TPM) must verify funds are available in the current fiscal year. The district right of way manager or designee in cooperation with the TPM should determine whether state funds only or federal participation will be requested in the right of way phase of the project. The district right of way manager must ensure proper documentation is received before an acquisition date (“A” date) is requested. Of particular importance are the easement needs of utilities located on the proposed improvement (see 643.2.1.5 Right of Way).

The transportation project manager must verify all environmental classifications and cultural resource (127.2 Historic Preservation and Cultural Resources) approvals are complete.

236.3.4.2 Limited Acquisition Authority and Project Funding

The transportation project manager (TPM) must verify that the right of way plans have been approved, funding is available in the current fiscal year, environmental classifications and historic preservation approvals have all been secured prior to submitting a Request for Federal Funding or issuing an Acquisition Authority Date (A-Date).

Limited acquisition authority may be requested when it is necessary to begin making charges to the right of way phase of the project.

Limited acquisition authority provides for all right of way activities up to and including appraisals. Also, acquisition and relocation activities may proceed on parcels identified as total acquisitions. This authority shall be provided prior to incurring right of way charges to the project.

Preliminary costs, such as, title information and preparation of cost estimates, etc., necessary for program and plan development shall be charged to the preliminary engineering phase of the project. For this reason, limited acquisition authority is not required for all projects.

A. The following procedure is to be used only when requesting federal participation in right of way acquisition and limited acquisition authority is being issued.

The transportation project manager will submit a Request for Federal Funding (Form 236.3.4.1A) to Resource Management for coordination of federal funds. All information on the form must be complete. A copy of Form 236.3.4.1A must be sent to the Right of Way Division together with a set of plans or plats of the total acquisitions.

Right of way activity may not commence until the transportation project manager receives a copy of FHWA's approval from Resource Management. A copy of this notification must be sent to Right of Way Division and Controller.

Once FHWA’s approval is received, the transportation project manager shall provide Form 236.3.4.1B to district right of way with a copy to Right of Way Division.

The preferred method for transmittal to the Right of Way Division is via email to the Right of Way Director with all required information attached.

The Right of Way Division will review the Limited Acquisition Authority request and once approved will coordinate with the Controller to set up the project and FMS project number. Limited acquisition authority may be issued more than one time on a job. In this event, fill in funds authorized for total acquisitions this request and total funds authorized to date, which is an accumulation of funds authorized. Incidental costs should not be included. A-Dates are to be parcel specific, therefore each request should list the parcels individually. Complete the appropriate box at the bottom of the form for Controller’s information.

B. The following procedure is to be used only when right of way is to be acquired with state funds and limited acquisition authority is being issued.

The transportation project manager shall provide Form 236.3.4.1B to district irght of way with a copy to the Right of Way Division.

The preferred method for transmittal to the Right of Way Division is via email to the Right of Way Director with all required information attached.

The Right of Way Division will review the Limited Acquisition Authority request and once approved will coordinate with the Controller to set up the project and FMS project number. A set of plans or plats of the total acquisitions should be attached to the copy sent to the Right of Way Division. Limited acquisition authority may be issued more than one time on a job. In this event, fill in funds authorized for total acquisitions this request and total funds authorized to date, which is an accumulation of funds authorized. Incidental Costs should not be included. A-Dates are to be parcel specific, therefore each request should list the parcels individually. Complete the appropriate box at the bottom of the form for Controller’s information.

236.3.4.3 Acquisition Authority and Project Funding

The transportation project manager (TPM) must verify that right of way plans have been approved, funding is available in the current fiscal year, environmental classifications and historic preservation approvals have all been secured prior to submitting a Request for Federal Funding or issuing an Acquisition Authority Date (A-Date).

Acquisition authority on a project may be authorized when the total project or a portion of a project is being funded. Acquisition authority includes all phases of right of way activity.

A. The following procedure is to be used only when requesting federal participation in right of way acquisition:

A request for acquisition authority and project funding shall be submitted on Form 236.3.4.2A (Request for Federal Funding) by the transportation project manager to Resource Management, Financial Resource Manager for coordination of federal funds. All information on the form must be completed. A copy of the Form 236.3.4.2A must be sent to the Right of Way Division together with a set of approved right of way plans of plats of the total acquisitions.

Right of way activity may not commence until the transportation project manager receives a copy of FHWA's approval from Resource Management. A copy of this notification must be sent to Right of Way Division and Controller.

Once FHWA’s approval is received, the transportation project manager shall provide Form 236.3.4.1B to district right of way. Copies of Form 236.3.4.1B must be sent to Right of Way Division.

The preferred method for transmittal to the Right of Way Division is via email to the Right of Way Director with all required information attached.

The Right of Way Division will review the Acquisition Authority (A-Date) request and once approved will coordinate with the Controller to set up the project and FMS project number. A set of approved right of way plans should be attached to the copy sent to Right of Way Division. Acquisition authority may be issued more than one time on a job. In this event, fill in funds authorized this request and total funds authorized to date, which is an accumulation of funds authorized including funds authorized for Limited Acquisition Authority. Incidental costs should not be included. A-Dates are to be parcel specific, therefore each request should list the parcels individually. Complete the appropriate box at the bottom of the form for Controller’s information. The funds authorized cannot exceed the amount programmed for right of way acquisition on the project in the current fiscal year.

B. The following procedure is to be used only when right of way is to be acquired with state funds:

The transportation project manager shall provide Form 236.3.4.1B to district right of way with a copy to Right of Way Division.

The preferred method for transmittal to the Right of Way Division is via email to the Right of Way Director with all required information attached.

The Right of Way Division will review the Acquisition Authority (A-Date) request and once approved will submit the request to the Controller to set up the project and FMS project number. A set of approved right of way plans should be attached to the copy sent to Right of Way Division. Acquisition authority may be issued more than one time on a job. In this event, fill in funds authorized this request and total funds authorized to date, which is an accumulation of funds authorized including funds authorized for Limited Acquisition Authority. Incidental costs should not be included. A-Dates are to be parcel specific, therefore each request should list the parcels individually. Complete the appropriate box at the bottom of the form for Controller’s information. The funds authorized cannot exceed the amount programmed for right of way acquisition on the project for the current fiscal year.

236.3.4.4 Advance Acquisition - Hardship and Protective Buying

In extraordinary cases or emergency situations, consideration may be given to acquisition of hardship or protective buying parcels within the limits of a proposed highway corridor prior to completion of processing of the final environmental impact statement or adoption of the appropriate environmental document, but only after:

MoDOT has given official notice to the public that a particular location has been selected to be the preferred or recommended alignment for a proposed highway, or;

a public hearing has been held or an opportunity for such hearing has been afforded.

Proper documentation shall be submitted to show that the acquisition is in the public interest and is necessary to:

hardship - alleviate particular hardship to a property owner in contrast to others. (See guidelines in 236.3.4.5)

protective buying--prevent imminent development which would tend to limit the choice of highway location alternates. (See guidelines in 236.3.4.5)

The transportation project manager will issue acquisition authority only after the Right of Way Division has approved the hardship or protective purchase status of a parcel.

Requests for hardship or protective buying on federally funded projects will not be considered on parcels located within 4(f) land or historical properties until the required Section 4(f) determination and the procedures of the Advisory Council on Historical Preservation are completed.

Acquisition of hardship or protective buying parcels shall not influence the environmental assessment of a project including the decision relative to the need to construct the project or the selection of a specific location.

Ultimate federal participation in the cost of hardship or protective buying parcels is dependent upon the incorporation of such property in the final highway right of way. When a parcel is partially incorporated in the right of way, federal funds will not participate in the remainder whether acquired as an uneconomic remnant or excess property.

Should a decision be made to acquire hardship or protective-buying parcels with state funds prior to Federal Highway Administration program approval on federally funded projects, such acquisition will not jeopardize federal participation in subsequent project costs. However, said acquisition must be in compliance with the provisions of Title VI of the Civil Rights Act of 1964 and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 as amended.

Follow the limited acquisition authority process previously outlined.

236.3.4.5 Guideline for Determination of Hardship

The following is a guideline for determining hardship status:

The property owner must request early acquisition and state the basis of the hardship request in writing.

The basis of determination of hardship will generally fall into the areas of physical and/or economic problems.

physical problems - age, health, disability and/or other extraordinary conditions that pose a threat to the health, safety and/or welfare of the owner-occupant or a member of his/her household for whom he/she is responsible

economic problems - wide range of financial disadvantages or maladjustments, personal financial losses that are beyond the relocatee's capability to resolve

236.3.4.6 Request for Hardship Acquisition

The district right of way manager shall investigate each application for hardship acquisition and request concurrence in the hardship from the Right of Way Division for those requests that they determine have sufficient documentation to qualify as a hardship.

236.3.4.7 Contents of Request

The written request to the Right of Way Division shall contain a statement pertaining to the current status of the project involved and the district right of way manager's recommendation for early acquisition and why it would be in the public’s best interest.

The following data must be attached to the request:

a copy of the property owner's written request and documented proof of his/her need to sell the property and the inability to do so, due to the proposed highway location;

any pertinent documentation to support the determination of hardship; such as, financial statements, doctor's statement in regard to health or disability, documented proof of transfer of employment or loss of employment, etc.;

one copy of a plan sheet or strip map depicting the parcel in relation to the proposed highway corridor;

an estimate of the cost of acquisition and relocation assistance of the parcel;

the job number and terminus, year presently programmed for acquisition and construction;

a statement pertaining to the present status of the project;

a certification from the project manager that the acquisition will not influence the environmental assessment of the project including the "no build" alternative.

236.3.4.8 Request for Concurrence in Protective Buying Parcels

All requests to the Right of Way Division for protective acquisition should document that prompt acquisition is required to prevent development of property that could cause higher acquisition and construction costs and relocation of people and businesses, if deferred. Any requests for protective buying should be reviewed and approved by the district Corridor Preservation Committee, or if one does not exist in your district, approval by appropriate district management prior to submittal to Right of Way Division.

236.3.4.9 Contents of Request

Each request should include the written request for protective acquisition including, but not limited to, the following information:

name of present owner and location of property;

area of parcel proposed for acquisition and description of remainders, if any;

the district's estimate of the probability of development as proposed by the owner or developer and a protective savings estimate to demonstrate that increase cost may tend to limit the choice of highway alternatives;

one copy of a plan sheet with the area involved depicted in relation to the proposed highway corridor;

the job number and terminus, year presently programmed for acquisition and construction;

a statement pertaining to the present status of the project;

a certification from the project manager that the acquisition will not influence the environmental assessment of the project including the "no build" alternative.

236.3.4.10 Hardship and Protective Approval

The Right of Way Division will coordinate with the FHWA in obtaining concurrence in the approval for hardship and protective buying on projects with federal participation in right of way. Do not proceed with acquisition of any hardship or protective purchase parcels until written concurrence is received from the Right of Way Division.

Upon approval from the Right of Way Division for a hardship or protective buying parcel, every effort should be made to appraise and acquire the property with a minimum of delay and consistent with normal acquisition procedures. A categorical exclusion determination (CE) must be completed in accordance with instructions in 236.3.1.2. If the parcel has been included in a RES (Request for Environmental Services) a CE will not be required.

Past experience has shown that hardship and protective purchases have not resulted in significant environmental effects and that this experience has resulted in categorical exclusions being granted by FHWA in accordance with 23 CFR 771.117(d)(12). MoDOT was granted approval by FHWA on June 9, 1994, for programmatic categorical exclusion for these purchases in accordance with 23 CFR 771.117(e). The result of this is that we will not need to request concurrence from FHWA in categorical exclusions for future hardship and protective purchases.

236.3.4.11 Condemning Hardship and Protective Buying Parcels

Should negotiations for a hardship or protective buying parcel fail, condemnation action in compliance with the Uniform Act will be instituted insofar as permitted by Missouri state law. Section 227.050, RSMo, requires the Chief Engineer to submit to the Commission in writing the Chief Engineer's recommendations as to detail plans with the right of way and surfaced roadway and type and character of construction for the highway. The statute provides that the Commission may approve, disapprove or modify the plans and proposals as recommended and the action of the Commission will not be disturbed except by subsequent action of the Commission. Supreme Court Rule 86.04 requires that when a condemnation petition is filed for the acquisition of right of way for a highway improvement, the detail plans required by Section 227.050, RSMo, shall be filed with the Circuit Clerk. This is necessary in order to confer jurisdiction on the court. Because of this, the department in many instances would not be in a position to institute condemnation proceedings immediately for the acquisition of hardship cases. In most instances, if the project has progressed to a point that detail plans can be approved by the Commission and filed with the court, the department is at a point of normal right of way acquisition. See 236.13.1.15 for additional information.

236.3.4.12 Condemnation Action on Hardship and Protective Buying

Prior to instituting condemnation of a hardship or protective buying parcel, the district right of way managers shall discuss with regional counsel and the Right of Way Division to determine if plans are adequate to allow for condemnation to proceed and to review offer data that is pertinent to the parcel.

236.3.4.13 Acquisition of Property from an Employee or a Commissioner of MHTC

If all or any portion of an employee’s or commissioner’s property is needed for a project the following process must be followed.

An employee or commissioner-owned property is defined as any property or property interest held by an employee or commissioner wherein the individual will directly receive financial gain from the acquisition transaction. Instances where the individual is merely a corporate officer, or the interest to acquire is deed of trust held by a financial institution owned or directed by the employee or commissioner, may be handled as a normal acquisition. Should you be made aware of a situation of an owner that is an immediate relative of an employee or commissioner, the Right of Way Division will advise if the acquisition requires application of this policy.

Employee Acquisition

A summary of pertinent details (right of way plan sheet, facts about the employee, copy of scope of assignment (i.e. Fee Study), and other related facts) about any proposed acquisition of employee-owned property or property rights must be submitted to the Right of Way Division for the Right of Way Director’s approval prior to proceeding. Should the acquisition appear to be of a routine nature with no apparent significant conflict, the Right of Way Director will recommend the policy listed below for employees and employees need not be encouraged to go to condemnation.

Acquisitions, which have been determined to be $10,000 or less, may be valued by MoDOT staff and may be reviewed and just compensation approved by an assistant right of way manager-certified or right of way manager who is a state certified real estate appraiser. The Right of Way Division will secure administrative review of all valuations with values less than $10,000 from the Federal Highway Administration prior to an offer being made. Commission approval isn’t necessary to extend the approved offer to the employee.

Acquisitions of more than $10,000 will have a fee appraiser or appraisers determine compensation. The appraisal will be reviewed and just compensation approved by state certified Right of Way Division right of way staff member, or with approval from the Right of Way Division, an assistant right of way manager-certified from another district. The Right of Way Division will secure administrative review of all appraisals with values greater than $10,000 from the Federal Highway Administration prior to an offer being made. Commission approval isn’t necessary to extend the approved offer to the employee.

The approved offer will then be extended to the employee and if the offer is for $10,000 or less, they can accept the approved offer. Any administrative settlement requires approval by the Director of Right of Way.

If the offer is for more than $10,000, the employee can accept the approved offer. Any administrative settlement requires approval by the Director of Program Delivery, the Assistant Chief Counsel, Program Delivery, and the Director of Right of Way.

The offer to mediate needs to be extended to employees. The MoDOT representative at the mediation session should be from the Right of Way Division or another district right of way office.

Should the acquisition appear too controversial or cause conflict, the Right of Way Director will advise the district to proceed with the policy listed above with the added provision the employee should be encouraged to go to condemnation.

Prior to condemnation of an employee, submit the appraisal, negotiator’s report, and other pertinent information to the Right of Way Division. The Director of Program Delivery, the Assistant Chief Counsel, Project Development, and the Director of Right of Way will determine if a settlement or condemnation will be used.

Commissioner Acquisition

The following conflict of interest policy must be followed for any acquisition from a commissioner of the Missouri Highways and Transportation Commission (MHTC).

Real property acquisition procedure

When a member has any possessory interest in real property for which an offer of just compensation will be made so that it may be acquired by MHTC for a project, the following procedure should be used by the commission member and shall be followed by MoDOT staff and special conflicts counsel.

Fee appraisal(s)

The district will have a preliminary estimate of damages in a fee study. If in the fee study, the apparent compensation is estimated to be $500 or more, the district’s right of way unit will have one or more fee appraiser(s) determine just compensation for the property to be acquired and the damage, if any, to the property’s remainder. If the apparent compensation in the fee study is less than $500, the appraisal will be prepared by district staff appraiser(s) and approved by the district chief appraiser or right of way manager who is a certified appraiser.

Central Office review and approval

If the approved offer is $500 or more, a central office right of way reviewing appraiser or field liaison officer who is also a certified appraiser will review the appraisal(s) and determine the approved offer of just compensation.

FHWA review and approval

The Right of Way Director will also secure review and approval of the appraisal(s) and the approved offer of just compensation from the Federal Highway Administration.

MHTC review and approval

When the approved offer exceeds $500, Section 105.454 (2), (3) RSMo. requires public notice before the sale of real property. Therefore, the Right of Way Director shall place the matter on MHTC’s open session meeting agenda for the Commission to review and finally approve the offer of just compensation (with the affected member abstaining from discussion and voting) prior to the offer being made to the commission member. To provide adequate public notice, the agenda item shall be styled: “Purchase of Real Property Interest from Commissioner _________.” However, if the approved offer does not exceed $500, MHTC review and approval is unnecessary.

Offer of just compensation to MHTC member

The approved offer will then be made by the district’s right of way office to the member, or his/her authorized representative. However, the member will be encouraged to refuse the offer and go through condemnation (to avoid any appearance of impropriety or undue influence by the member over the staff or other MHTC members) if the offer is more than $10,000. Provided further; however, if the offer is $10,000 or less, the member need not be encouraged to go through condemnation and may execute a deed for the real property in exchange for the approved offer.

Condemnation

If the MHTC member agrees to the condemnation, the parcel will be condemned at the first opportunity by special conflicts counsel approved by MHTC (with the affected member abstaining from discussion and voting).

Settlement

Once the condemnation commissioners appointed by the circuit court have set a value for the property, if that value is acceptable to all parties, a proposed settlement in the amount of the condemnation commissioners’ award should be presented to the court for its review, approval, and entry of judgment, but the court shall be requested by special conflicts counsel to delay its action until after the members’ term ends (to avoid any appearance of impropriety or undue influence by the member over the staff or other MHTC members).

Jury trial

Should either party not agree with the value established by the condemnation commissioners and file exceptions to the condemnation commissioners award, the special conflicts counsel should prepare the case for trial, but shall request the circuit court to delay the jury trial until after the commission members’ term expires (to avoid any appearance of impropriety or undue influence by the member over the staff or other MHTC members). The final price for the property will be that determined by jury verdict and the court’s final judgment after appeal, if any.

Rule 17

Should the circuit court refuse under section (2) (I) 8. or 9. above to delay the action under Missouri Supreme Court Administrative Rule 17, the special conflicts counsel shall consult with MHTC in closed meeting regarding the appropriate course of action (with the affected member being excluded from the meeting).

236.3.5 Right of Way Expenditures

Key Points

236.3.5.1 General

The proper accounting and recording of all expenditures and income occurring as a result of right of way transactions are the responsibility of the Controllers Division. In order for the Controllers Division to carry out its responsibility, it is necessary for the district right of way office and the Right of Way Division to cooperate by supplying and interpreting essential information needed for accurate cost accounting.

Although the Controllers Division is responsible for recording all expenditures and income as a result of right of way transactions, it will be necessary for each district right of way office to maintain such additional record keeping as is necessary to furnish the required managerial reports and statistical data requests. These additional records may be maintained at each district's discretion so long as they are sufficient to furnish the needed information.

Refer to the SAM II Chart of Accounts for coding instructions on right of way transactions.

The following sections will describe right of way policy and procedure in regard to expenditure authorization and control.

236.3.5.2 Expenditure Accounting

The Controllers Division establishes one or more unique accounting number(s) for each right of way project when an A-Date is issued. This accounting number is termed the SAM II Project Number. The SAM II Project Number is available to district and Division users by querying the SAM II system, and is also maintained on the Job Form in RWPA.

The district right of way office will forward, along with the correct accounting coding, all required documentation and data for right of way payrolls and relocation claims (payments) to the Right of Way Division. Documentation required for processing payment for land acquisition by negotiation should include a certified escrow agreement or certified sales contract and a right of way Acquisition Payment (Form (A-419)) for each parcel. Also enclose a letter of transmittal. If an administrative settlement is reached the administrative settlement memorandum is a required attachment.

The payroll packet may be submitted through inter-office mail or by emailing scanned “pdf” files. All required documentation is still required.

Once the Right of Way Division reviews and approves the payment the Right of Way Division will submit the payroll to the Controllers Division.

Commission approval must be obtained prior to payment of land acquisition for maintenance sites, resident engineers' offices and district office sites.

Expenditures for incidental expenses such as commercial invoices, time charges, equipment rental, subsistence expenses, pro rata tax, prepayment mortgage penalty payments and bill of cost shall be forwarded directly to the Controllers Division, Accounts Payable section by the district right of way office.

Checks in payment of right of way regular land purchases, commissioner’s awards, final judgments and relocation assistance payments are forwarded to the district for delivery to the payee. All other checks in payment of right of way related incidental costs are mailed direct to the payee by the Controllers Division.

236.3.5.3 Expenditure Controls

Right of way expenditures are controlled as follows.

(a) Acquisition authority ("A" date) and funding authorizations from project manager. (Do not make expenditures for right of way acquisition or relocation payments until authority is received from the project manager.)

(b) Authorized funds shall not exceed Statewide Transportation Improvement Program (STIP) as of the date of authorization.

(c) Regular purchase right of way, uneconomic remnants, excess land and borrow acquisition payments shall not exceed amounts established by approved Form 6.4.3, Form 6.4.4, district-approved payment estimate (waiver valuation) form. or administrative settlement memo.

(d) Expenditures for acquisition by eminent domain shall not exceed the amounts as established by court-approved commissioners' report, court-approved jury settlement or stipulated legal settlement.

(e) All other incidental expenditures shall be controlled in accordance with approved contracts, agreements or special Commission minutes.

236.3.5.4 Expenditure Authorization (Commission)

The MHTC authorizes expenditures for right of way acquisition and relocation payments when it approves the 5-year STIP or through STIP amendments.

236.3.5.5 Authorization and Processing of Incidental Expenditures

Right of way expenditures; such as, pro rata tax, mortgage prepayment penalty, fee appraisal cost, title contract fees and other incidental expenditures will be paid by commercial invoice process as specified by the FMS Financial Policies and Procedures Manual.

Certain right of way expenses can be authorized and paid from the Design/Bridge Consultant (DBC) budget organization.

Eligible expenses are for payments to consultants under contract with MoDOT for Title Services, Real Estate Appraisals and Reviews, Mediation and Negotiation.

A copy of any contract to be funded by the DBC budget should be forwarded to the transportation project manager in the Design Division responsible for the DBC, and to Controller, Accounts Payable (Contractual Payments) at the Central Office prior to requesting payment on that contract. This provides the ability to track contracts for reporting to legislature.

Approved invoices with appropriate coding should be forwarded to CT, Accounts Payable (Contractual Payments) at the Central Office for processing. The district right of way office has full responsibility for contract administration and must certify each invoice as being due and payable under the terms of the contract.

Coding will be the same as immediately prior to this change, except that the Org will be 2DBC instead of the district right of way org. (41X6, 42X6, 33X6, etc.) and the Appropriation will be 4403 instead of 4402. Specifically, coding will be as follows:

Item	Appraisal/Review	Title (R-phase Project)	Title (P-phase Project)	Negotiation	Mediation
Fund	0320	0320	0320	0320	0320
Agency	605	605	605	605	605
Org.	2DBC	2DBC	2DBC	2DBC	2DBC
Approp.	4403	4403	4403	4403	4403
Activity	R345	R344	R344	R346	R346
Object	2842	2820	2544	2845	2845
Sub-Object	n/a	09	n/a	01	02

Please note that the above coding provides a different object/sub-object for title work depending on whether the project is a “P-phase” or “R-phase”. This is because object 2820 requires a fixed asset and a fixed asset requires an R-phase project number. Charges to both objects are capitalized, but those to 2544 are capitalized later in the accounting process.

Annually a budget is prepared for the Design/Bridge Consultant org code with input from the districts. It will be necessary for each district right of way office to include its estimated funding requirement with the district submittal. This may be included as a component of the Design Division figure, or may be shown separately.

There will be no change to district operating funds allocations as a result of this change.

236.3.6 Federal - Aid to Local Public Agency

Key Points

236.3.6.1 General

The Federal-Aid Program is funded with a portion of federal aid highway funds. These funds must be expended on improvements to certain designated public highways. The public highways that qualify for this program must qualify for federal aid and be under jurisdiction of and maintained by a public agency and open to public traffic.

The Bridge Program is funded with an established portion of the federal aid highway funds. These funds must be expended on improvements to a public road, street, or highway. The public roads that qualify for this program must be under the jurisdiction of and maintained by a public agency and be open to public traffic.

The right of way procedures for federal-aid projects must be in compliance with requirements 23 CFR and 49 CFR. A document entitled Local Public Agency Land Acquisition has been developed and is available to provide guidance to local agencies with regard to right of way acquisition.

236.3.6.2 Definitions

Public Highway: Any alley, street, road or highway under the jurisdiction of and maintained by a public agency and open to public traffic.

Public Agency : Any county, municipality, state or local political subdivision, or governmental agency. In the following chapters of this section of the manual, these public agencies will be referred to as "local agencies."

236.3.6.3 Responsibility for Right of Way Acquisition

The Missouri Department of Transportation has the overall responsibility for the acquisition of right of way on all federally assisted right of way projects in the state of Missouri.

It shall be the district's responsibility to review plans for compliance. (See Section V of the Local Public Agency Land Acquisition Manual.)

If the LPA is requesting federal aid in the right of way phase of a project the district right of way office shall review cost estimates for accuracy and reasonableness and submit the estimate to the Right of Way Division for acquisition authority. (See Appendix Item 2B of the Local Public Agency Land Acquisition Manual.)

If the LPA is not requesting federal aid in the right of way phase of a project the district shall provide a Notice to Proceed to the LPA rather than an A-Date.

Local agencies may acquire necessary right of way on projects within the political subdivision of their jurisdiction provided they are adequately staffed, equipped, and organized to provide such services to comply with requirements of 23 CFR and 49 CFR.

236.3.6.4 Informing the Local Agency of Its Responsibility in Acquiring Right of Way on Federally Assisted Highway Projects

It shall be the district's responsibility to fully inform the local agency of its responsibility to comply with the requirements of 23 CFR and 49 CFR when acquiring right of way in conjunction with a federally assisted highway project.

The local agency must be informed of these responsibilities prior to executing the supplemental project agreement and the agreement shall contain and set out the conditions of acquisition and funding for any necessary right of way.

236.3.6.5 Determination of Local Agency’s Capabilities to Assist in the Acquisition of Right of Way

The district shall make a determination whether the local agency is adequately staffed to perform the necessary right of way functions. It should also determine if it would be practical to maintain a staff to perform these functions. These determinations are reported on appendix item 2B of the LPA Land Acquisition when requesting acquisition authority.

If the local agency is not staffed adequately to perform all or any part of the right of way functions, contracting these functions is permitted. Contracting and contract documents are covered in Local Public Agency Land Acquisition.

When a local agency is not staffed to perform all or part of the right of way functions, it may request that the state perform all or part of these functions for the agency. The district should evaluate their program and schedule to determine if performance of this work would interfere with their own work. If approved by the district right of way office to provide this assistance, an agreement should be prepared between the agency and the state to provide these services and shall set out the conditions for reimbursement of the state's cost to provide the agreed services.

Local agencies must follow state procedures as contained in this manual and the LPA Manual or develop their own procedures that must comply with Titles 23 and 49 CFR. Such procedures must receive prior approval by MoDOT and FHWA.

236.3.6.6 Monitoring Local Agency in the Acquisition Function

When right of way for a local agency project is acquired by other than state forces, the district shall monitor all phases of the acquisition by the local agency or its contractor to assure compliance with 23 CFR and 49 CFR. Monitoring should begin early in any phase of right of way activities to assure compliance and to avoid potential nonparticipation.

The monitoring function also includes the condemnation phase if undertaken by the local agency. It is the district right of way office’s responsibility to notify the local agency that proper documentation must be made for not filing exceptions to awards, for justification for settlements, and for trial reports. The requirements for documentation are established in Local Public Agency Land Acquisition. The district right of way office shall obtain copies of all justifications and/or trial reports and furnish copies to the regional counsel for their review. Counsel's review will be furnished to the district right of way office for attachment to the project monitoring report. In case of inadequate documentation, counsel shall contact appropriate representative of local agency for corrective action.

236.3.6.7 Documentation of Monitoring Local Agency Projects

The district shall prepare a monitoring report of the local agency's performance or its contractor's performance for each phase of the right of way function. When it is determined that each phase of the right of way function is in sufficient compliance, the original monitoring report shall be retained in the district files with one copy forwarded to the division office along with the clearance certification. A copy of the monitoring report can be found in Local Public Agency Land Acquisition.

If the district determines that the local agency is not in sufficient compliance to qualify the project for federal aid, the district should work with the LPA to attempt to resolve the discrepancy. If the discrepancy cannot be resolved the district shall notify the Right of Way Division. When appropriate the Right of Way Division will confer with the Federal Highway Administration on the deficiency and notify the district of any further action necessary.

236.3.6.8 Programming Right of Way Projects

In order to receive federal participation, all projects including those involving acquisition of additional rights of way must be programmed with the Federal Highway Administration.

236.3.6.9 Acquisition Authority

Project authorization (acquisition authority) must be received from the Right of Way Division prior to incurring any expenditure for acquisition on projects where the department or local agency anticipates federal-aid participation. Before acquisition authority is issued, the district right of way office shall check for environmental classification approvals.

Therefore, MoDOT and local agency must decide if they desire federal participation in the right of way phase of a project prior to making appraisals, negotiations, and actual relocation assistance payments.

Acquisition authority should be requested from the Right of Way Division office by using the information contained in the Local Public Agency Land Acquisition. All information on said form shall be furnished along with any pertinent remarks to explain the planned right of way acquisition.

When department personnel are to acquire right of way for a local agency, it will be necessary to request authorization from the division office before proceeding with the work regardless of the funding on the project.

If the local agency is not requesting federal participation in right of way costs, the district can authorize the local agency to begin acquiring or getting donations by approving the agencies submittal as outlined in the Local Public Agency Land Acquisition. This action would follow the district's review of plans and a check on the approval of the environmental classification.

236.3.6.10 Obligation of Funds

Concurrent with project authorization, funds must be obligated for the total estimated cost of the work being authorized. If actual costs for authorized work exceed estimated costs, the district right of way office must submit a request for a modified project agreement to the Right of Way Division.

236.3.6.11 Clearance Certification

A clearance certification as set out in 236.18.10 Local Public Agency Land Acquisition shall be submitted to the division office when the local agency or department personnel have acquired all necessary right of way for a project.

Unless state forces acquire the right of way, the local agency shall submit to the district the required statements of certification on their letterhead, and signed by appropriate official or officials as outlined in 236.18.10 Local Public Agency Land Acquisition. The district submits this certification along with their monitoring report indicating the acquisition qualifies for federal participation to the Right of Way Division.

236.3.7 Right of Way Clearance Certification

Key Points

236.3.7.1 General

The district shall submit a right of way clearance certification to the Right of Way Division office for all projects that involve any type of real property right being conveyed to MoDOT including temporary and/or permanent easements and/or access rights and/or right of way. It may also be necessary to submit a clearance certification on a portion (partial clearance) of a right of way project or a conditional clearance when the department's construction letting schedule indicates a need to do so. The district right of way office should maintain close surveillance of the department's construction letting schedule to assure timely right of way clearance.

A right of way clearance certification is required for all right of way projects regardless of funding. A right of way clearance certification is required on all federally funded local public agency projects. The local agency shall submit a clearance certification to the district on the agency's letterhead signed by appropriate official or officials. This certification, along with a monitoring report, shall be submitted to the Right of Way Division.

236.3.7.2 When Should Clearance Certification be Submitted

Clearance certification should be submitted when all right of way has been acquired and legal and physical possession of all parcels has been obtained and relocation assistance has been made available on occupied units.

OR

No later than approximately 10 weeks (PS&E due date) prior to the scheduled construction letting date of a project or portion of a project.

All jobs certified clear more than one year prior to construction letting must have an updated clearance certification issued to verify that the right of way is still clear and that there are no encumbrances of any kind and there are no rental agreements, extensions of possession or leases in effect.

The submittal of the clearance certification shall be by email to the Right of Way Director, Right of Way Division with all appropriate attachments, including the certification letter, a copy of the right of way plans as acquired and the acquisition complete cost estimate.

236.3.7.3 Contents of Clearance Certification

Each certification must contain the following.

1. The heading of the certification letter should contain the following:

Clearance certification entire project, portion of project, or conditional clearance,
county,
route,
right of way job number,
federal project number,
termini of the entire right of way project,
the termini by stationing of that portion of the project being cleared if it is a partial clearance certification,
construction job number and termini.

2. Make all of the statements depending upon type of acquisitions involved for project.

A. Right of Way Required - No Personal Property moved - No Relocation Assistance Required

We certify that all necessary right of way, easements and access rights have been acquired in accordance with the Titles 49 and 23 CFR.

Legal and physical possession of all parcels has been obtained.

The steps relative to relocation advisory assistance and payments were not required.

B. Right of Way Required - Personal Property Moved - No Occupied Improvements Acquired

We certify that all necessary right of way, easements and access rights have been acquired in accordance with Titles 49 and 23 CFR.

Legal and physical possession of all parcels has been obtained.

Steps relative to relocation advisory assistance and payments as required by 49 CFR, Part 24 have been taken (personal property moved only).

C. Right of Way Required - Personal Property Moved - Occupied Improvements Acquired

We certify that all necessary right of way, easements and access rights have been acquired in accordance with Titles 49 and 23 CFR.

Legal and physical possession of all parcels has been obtained.

Steps relative to relocation advisory assistance and payments as required by 49 CFR, Part 24 have been taken.

All individuals and families have been relocated to or offered equivalent decent, safe and sanitary housing in accordance with 49 CFR, Part 24.

Required data to be submitted with clearance certification.

3. When a right of way project is certified clear, attach to the certification:

Total number of parcels on project that required the acquisition of right of way, easements and/or access rights.

A list of any parcels acquired by free deed. (List the parcel number, date received, and grantor's name.)

List any parcels that were voided and not appraised within the numeric beginning and ending parcel numbers as indicated on the right of way plans.

List any parcel that was appraised and subsequently voided and not payrolled.

List the total number of outdoor advertising billboard (not on premise) signs acquired on the project. Indicate the number of legal signs acquired and number of illegal signs acquired regardless of the method of acquisition (negotiated or condemnation). Also include the owner of each sign and the parcel where it was located and the method for removal, for example:

Parcel 4: to be removed by contractor; Parcel 27 to be removed by owner on or before xx/xx/xx. If the billboard is still in place on xx/xx/xx, the contractor shall remove the billboard.

Attach a copy of the estimate captioned "Acquisition Complete", as required in 236.3.3.2 Subparagraph 6, to the clearance certification letter.

4. LPA Right of Way Clearance Certifications

Attach to the clearance certification for any local public agency project a separate sheet indicating the number of parcels on the project, the number of parcels requiring condemnation, also indicate whether state personnel or local agency personnel acquired the necessary right of way. If local agency acquired, attach a copy of the district's monitoring report indicating that the acquisition was in compliance with department and Federal Highway Administration policies and procedures for acquisition and relocation assistance. The monitor checklist is included in Local Public Agency Land Acquisition.

236.3.7.4 Utilities Adjustment Clearance Not to be Included in Right of Way Clearance Certification

As utility adjustments are generally the responsibility of the Design Division Utility Section, it will not be necessary to make comment in regard to utilities in a right of way clearance certification. However, utilities easements that are acquired by MoDOT on behalf of utility companies and included in the right of way acquisition for the project should be considered in your clearance certification.

236.3.7.5 Distribution of Clearance Certification

The original certification should be directed to the Right of Way Director, Right of Way Division. A copy of the clearance certification letter shall be sent to the outdoor advertising specialist in the appropriate district on projects involving the acquisition of outdoor advertising billboard signs. Other copies may be distributed as necessary at the district level.

The submittal of the clearance certification shall be by email to the Right of Way Director, Right of Way Division with all appropriate attachments, including the certification letter, a copy of the right of way plans as acquired and the acquisition complete cost estimate as well as any other applicable documentation.

The Right of Way Division will review the clearance certification submitted by the district and once approved will submit a Right of Way Division Clearance Certification to the Design Division, Resource Management, Controllers Division and when appropriate the FHWA.

236.3.7.6 Conditional Right of Way Clearance Certification

Should it be necessary, to allow MoDOT to meet a construction letting schedule, it is possible to issue a right of way clearance certification on a project prior to actually having legal and/or physical possession of all of the necessary right of way.

This particular type clearance certification is to be issued only under very unusual circumstances, when it is considered to be in the public's best interest to proceed with the letting and the number of parcels the department does not have possession of is minimal.

All other requirements for the issuance of a right of way clearance certification are applicable. It is imperative that the following information be provided for each of the parcels that the department does not have legal and/or physical possession.

Parcel number.
Property owner's name.
Type of major improvement involved, if any.
Type of right of way acquisition involved
Reason department does not have possession of parcel.
Date possession is anticipated.
How was anticipated possession date was determined.
Explanation as to why it is in the public's best interest to clear the right of way.

The department will ensure that occupants, who have not yet moved from the right of way, will be protected against unnecessary inconvenience and disproportionate injury or any action coercive in nature.

The conditional clearance shall include a statement that a follow-up clearance certification will be issued when possession of all parcels has been obtained.

236.3.7.7 Partial Right of Way Clearance Certification

When phase construction is involved on a particular project and it is necessary to clear only a portion of an entire right of way project, all other requirements for the issuance of a clearance certification are applicable, except 236.3.7.6. In addition, the following specific information shall be provided.

As noted in 236.3.7.3, paragraph 1a, the clearance certification should clearly state that the clearance is only for a portion of the entire project.

Termini of the entire right of way project and the termini by stationing of the portion of the project being cleared, as noted in 236.3.7.3, paragraph 1f.

In addition to the information required by 236.3.7.3, paragraph 3, the total number of parcels located within the termini of the partial clearance shall be provided and each parcel listed by number.

236.3.8 Junkyard Control and Acquisition

236.3.8.1 General

RSMo. Section 226.690 provides that any junkyard that was lawfully in existence on August 4, 1966, which is within 1,000 feet of the nearest right of way line of any interstate or primary highway and is visible from the highway must be screened so as to render it not visible from such highway.

Junkyards may be screened either by structural fencing such as wood, concrete, metal, earth berm, or non-deciduous vegetation.

When it is not economically feasible or possible to screen junkyards, the department may acquire either by negotiations or condemnation a restrictive easement to the rear property line or to a depth of 1,000 feet from the right of way line.

When new right of way for a project is acquired and renders a legal junkyard nonconforming, it is the Missouri Department of Transportation's obligation to bring it back into compliance by (1) screening, (2) relocating, or (3) purchasing.

A junkyard is considered a business and if displaced is entitled to appropriate and applicable relocation assistance benefits.

236.3.8.2 Discussion

The Revised Statutes of Missouri, Section 226.650 through 226.720 prohibit the establishment and licensing of junkyards within 1,000 feet of the nearest edge of the right of way of an interstate or primary highway unless they are either:

screened by natural objects, plantings, fences, or other appropriate means so as to render them not visible from the traveled way of the highway involved,

located within areas which are zoned for industrial use under authority of law,

located within industrial areas determined by the Missouri Highway and Transportation Department from actual land use to be industrial or commercial areas, or

not visible from the right of way of the interstate or primary system.

RSMo. Section 226.690 provides that any junkyard that was lawfully in existence on August 4, 1966, which is within 1,000 feet of the nearest right of way line of any interstate or primary highway and is visible from the highway must be screened, if feasible, by the Missouri Department of Transportation so as to render it not visible from such highway. When it is determined by the Missouri Highways and Transportation Commission that adequate screening is not economically feasible or possible, it is authorized to acquire by purchase, exchange, or condemnation proceedings the lands necessary to secure the relocation or removal of said junkyard. The Commission may acquire such lands as necessary to provide adequate screening of such junkyard when it is considered to be in the best interest of the state.

Legal nonconforming junkyards must meet the following requirements to be eligible for purchase or screening:

(1). eligible for license on August 4, 1966,

(2). voluntarily acquired a license by that date or within the extensions granted (the Chief Counsel's Office has granted extensions in some circumstances),

(3). junkyard is presently operating under a current license,

(4). junkyard is within 1,000 feet of the nearest right of way line and is visible from the interstate or primary system.

For a junkyard within 1,000 feet of the right of way of an interstate or primary highway to have been legal on August 4, 1966, it must have been in existence and thereafter applied for and received a license. To be licensed it must have been in a municipality or either screened from view or back at least 200 feet from the highway.

When a junkyard meets the above requirements, it must be screened or otherwise brought into compliance with the law by the Missouri Department of Transportation.

When new right of way for a project is acquired and renders a legal junkyard nonconforming, it is the Department's obligation to bring it back into compliance by (1) screening, (2) relocating, or (3) purchasing.

When feasible, junkyards may be screened either by structural fencing such as wood, concrete, metal, earth berm, or non-deciduous vegetation. Vegetation must be of such density as to screen the junkyard from sight of the traveling public within a three-year period after initial planting and be of a variety that will screen the junkyard from view the year round.

MoDOT will design and contract to build the screen or contract with the owner to construct the screen, providing that he constructs it in accordance with the state's specifications. Easements may be acquired by either negotiation or condemnation. The negotiated agreement or the condemnation petition must include height restrictions to assure that junk will not be placed in such a manner as to be visible above the screen.

It is preferable that the property owner maintains the screen as a part of his agreement with the department. If the owner refuses and the screening easement is condemned, the maintenance will become the department's responsibility.

It is not feasible to construct a screening fence to a height greater than 8 feet. Earth berms may be constructed to increase vertical height.

When it is not economically feasible or possible to screen junkyards, the department may acquire either by negotiations or condemnation a restrictive easement to the rear property line or to a depth of 1,000 feet from the right of way line, whichever point occurs first. Appraisals for such restrictive easements shall be compiled in accordance with current right of way or realty appraisal policies.

When negotiating, if there is a sufficient remainder, the owner should be encouraged to retain the items to be removed to the remainder at their salvage values. If this can be accomplished, the Chief Counsel's Office will prepare a restrictive easement and an escrow agreement withholding a specific amount as a performance bond to be released when the salvage is removed from the 1,000-foot restrictive easement.

When the owner does not retain the salvage, bids will be taken on the basis of the successful bidder buying and removing all junk. The successful bidder will be required to furnish a surety bond. Contract and bid documents will be prepared and furnished.

If and when negotiations fail, the Chief Counsel's Office will then condemn a restrictive easement. Upon clearance, the same methods to remove the junk will be used as when the property is purchased by negotiation.

A junkyard is considered a business and if displaced is entitled to appropriate and applicable relocation assistance benefits.

236.3.8.3 Guidelines for Screening and Acquisition of Junkyards

(1). Determine the legality of the junkyard; i.e., zoning and validation of legal status.

(2). Determine if junkyard can be screened.

(a). The department can acquire easements at various angles to the right of way line for screening purposes either by negotiation or condemnation.

(b). A reasonable height for man-made screening is approximately 8 feet.

(c). Earthen berms may be used for screen or to increase the vertical height of vegetation or fence.

(d). Consideration should be given to recycling of scrap where practicable and screening the remaining area.

(3). Pictures can be used to document file.

(4). Develop plan sheet to show complete ownership, 1,000-foot line, and area under permit with relation to highway, setting out elevation needed to screen; include general location of junk and any buildings, structures, or improvements involved and suggested method of screening.

(5). If it is not feasible or economical to screen, develop an appraisal for junkyard removal including 1,000-foot restrictive easement (assistance in making such appraisal can be requested from division office).

(6). The Chief Counsel's office in Jefferson City must be contacted to prepare the conveyance and escrow agreement. NOTE: Each and every conveyance or agreement must be approved as to form by the Chief Counsel's office.

(7). If the owner retains the salvage (which MoDOT prefers), a sufficient amount must be retained by Commission to assure removal of such items. In those instances where owner retains the salvage, he must contract with the Commission that a replacement site for a salvage yard operation is available to him.

(8). Sufficient documentation should be compiled to justify the acquisition.

Estimate the cost of screening, if feasible, and estimate cost of 1,000 ft. restrictive easement including the removal of the junk. Document the file in accordance with the above guidelines and make a recommendation to the Right of Way Division along with the request for authority to proceed.

Additional information is contained in 236.17 Junkyards.

236.3.9 Nonconforming Outdoor Advertising Acquisition Program

236.3.9.1 General

Just compensation will be paid to the outdoor advertising sign owners and site owners.

The owner of the structure will be given the opportunity to salvage the structure.

Federal funds participate in 80% of the cost of removal of nonconforming outdoor advertising structures.

236.3.9.2 Discussion

When nonconforming outdoor advertising structures are removed through this nonconforming acquisition program, just compensation will be paid to the outdoor advertising sign owners and site owners for the rights and interests that are considered to be nonconforming on the interstate system and primary highway system as it existed June 1, 1991. Signs lawfully erected prior to March 31, 1992, in areas zoned commercial or industrial or in unzoned commercial or industrial areas that are nonconforming solely because they do not comply with the size, lighting and spacing requirements of the present law do not have to be removed under this program.

The owner of the structure will be given the opportunity to retain the structure for removal purposes at the assigned salvage value. If signs are not retained, they will be disposed of by

(1) public sale,
(2) negotiated sale,
(3) demolition contract or removed by MoDOT maintenance personnel.

Federal funds participate in 80% of the cost of removal of such nonconforming outdoor advertising structures if funded as a transportation enhancement project. However, it is the states discretion as to whether it wishes to acquire nonconforming outdoor advertising structures utilizing transportation enhancement funds.

The Revised Statutes of Missouri, Sections 226.500 through 226.600, regulate and control outdoor advertising adjacent to the interstate system and primary highway system to promote highway safety, convenience and enjoyment of highway travel, and to preserve the national scenic beauty of highways and adjacent areas.

Outdoor advertising shall not be erected on the primary highway system as it existed June 1, 1991, and the interstate system unless said outdoor advertising sign is erected in accordance with the provisions of RSMo. Sections 226.500 through 226.600.

The Outdoor Advertising Section of the Right of Way Division has an inventory of all signs and is charged with the responsibility of keeping the inventory current as well as issuing permits for all lawfully erected outdoor advertising signs requiring permits.

Additional information is contained in 236.18 Outdoor Advertising

236.3.10 Notice of Intent to Acquire

Please refer to 236.10.7.4 Written Notice for detailed information.

@@ Line 486: / Line 486: @@
 '''MHTC review and approval'''
-When the approved offer exceeds $500, Section 105.454 (2), (3) RSMo. requires public notice before the sale of real property.  Therefore, the Right of Way Director shall place the matter on MHTC’s open session meeting agenda for the Commission to review and finally approve the offer of just compensation (with the affected member abstaining from discussion and voting) prior to the offer being made to the commission member.  To provide adequate public notice, the agenda item shall be styled: “Purchase of Real Property Interest from Commissioner _________.”  However, if the approved offer does not exceed $500, MHTC review and approval is unnecessary.
+When the approved offer exceeds $500, [http://www.moga.mo.gov/STATUTES/C105.HTM Section 105.454 (2), (3) RSMo]. requires public notice before the sale of real property.  Therefore, the Right of Way Director shall place the matter on MHTC’s open session meeting agenda for the Commission to review and finally approve the offer of just compensation (with the affected member abstaining from discussion and voting) prior to the offer being made to the commission member.  To provide adequate public notice, the agenda item shall be styled: “Purchase of Real Property Interest from Commissioner _________.”  However, if the approved offer does not exceed $500, MHTC review and approval is unnecessary.
 '''Offer of just compensation to MHTC member'''

236.3 Administration: Difference between revisions

Revision as of 11:34, 28 April 2008

236.3.1 General

236.3.1.1 Administration responsibilities

236.3.1.2 Steps for Completing Categorical Exclusion (CE) Review

236.3.2 Programming and Right of Way

236.3.2.1 Programming

236.3.2.2 Yearly Review of Program

236.3.2.3 Construction and Right of Way Program Control

236.3.2.4 Revision of Programmed Amounts

236.3.3 Right of Way Plan Review

236.3.3.1 Right of Way Plan Review

236.3.3.2 Right of Way Cost Estimates

236.3.3.3 Preparation of Right of Way Cost Estimate Forms

236.3.4 Right of Way Acquisition Authority and Project Funding

236.3.4.1 General

236.3.4.2 Limited Acquisition Authority and Project Funding

236.3.4.3 Acquisition Authority and Project Funding

236.3.4.4 Advance Acquisition - Hardship and Protective Buying

236.3.4.5 Guideline for Determination of Hardship

236.3.4.6 Request for Hardship Acquisition

236.3.4.7 Contents of Request

236.3.4.8 Request for Concurrence in Protective Buying Parcels

236.3.4.9 Contents of Request

236.3.4.10 Hardship and Protective Approval

236.3.4.11 Condemning Hardship and Protective Buying Parcels

236.3.4.12 Condemnation Action on Hardship and Protective Buying

236.3.4.13 Acquisition of Property from an Employee or a Commissioner of MHTC

236.3.5 Right of Way Expenditures

236.3.5.1 General

236.3.5.2 Expenditure Accounting

236.3.5.3 Expenditure Controls

236.3.5.4 Expenditure Authorization (Commission)

236.3.5.5 Authorization and Processing of Incidental Expenditures

236.3.6 Federal - Aid to Local Public Agency

236.3.6.1 General

236.3.6.2 Definitions

236.3.6.3 Responsibility for Right of Way Acquisition

236.3.6.4 Informing the Local Agency of Its Responsibility in Acquiring Right of Way on Federally Assisted Highway Projects

236.3.6.5 Determination of Local Agency’s Capabilities to Assist in the Acquisition of Right of Way

236.3.6.6 Monitoring Local Agency in the Acquisition Function

236.3.6.7 Documentation of Monitoring Local Agency Projects

236.3.6.8 Programming Right of Way Projects

236.3.6.9 Acquisition Authority

236.3.6.10 Obligation of Funds

236.3.6.11 Clearance Certification

236.3.7 Right of Way Clearance Certification

236.3.7.1 General

236.3.7.2 When Should Clearance Certification be Submitted

236.3.7.3 Contents of Clearance Certification

236.3.7.4 Utilities Adjustment Clearance Not to be Included in Right of Way Clearance Certification

236.3.7.5 Distribution of Clearance Certification

236.3.7.6 Conditional Right of Way Clearance Certification

236.3.7.7 Partial Right of Way Clearance Certification

236.3.8 Junkyard Control and Acquisition

236.3.8.1 General

236.3.8.2 Discussion

236.3.8.3 Guidelines for Screening and Acquisition of Junkyards

236.3.9 Nonconforming Outdoor Advertising Acquisition Program

236.3.9.1 General

236.3.9.2 Discussion

236.3.10 Notice of Intent to Acquire

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