Right-of-Way the right way

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

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

3. 50 Ways to Lose Your Money Dave Leighow Realty Specialist FHWA-Olympia, wa DISCLAIMER: This presentation was created by Dave Leighow and presented at the IRWA conference in Seattle in 2012. I have updated some portions of this presentation to be concurrent with MAP 21 changes. Mack Dickerson, SR/WA, R/W-RAC Tierra Right of Way Services, Ltd.

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

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

6. Real property acquisition INFRASTRUCTURE REQUIRES REAL ESTATE!

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

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

9. Statute and regulations THE UNIFORM ACT CODE OF FEDERAL REGULATIONS 49 CFR Part 24 23 CFR Part 710 23 CFR 635.309 23 CFR 1.23 23 CFR 1.36 • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended • ****** • Public Law 91-646

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

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

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

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

14. Appraisal & Acquisition You could lose your federal funds if you: • Don’t give the property owner an opportunity to accompany appraiser [49 CFR 24.102 (c)] • Don’t base just compensation on an approved appraisal of the fair market value of the property [49 CFR 24.102 (d)] • Don’t offer just compensation to property owner [49 CFR 24.102 (d)] • Don’t give property owner written offer to purchase [49 CFR 24.102 (d)]

15. Appraisal & Acquisition continued You could lose your federal funds if you: • Don’t give property owner reasonable opportunity to consider offer [49 CFR 24.102(f), (h)] • Don’t offer to purchase uneconomic remnant from property owner [49 CFR 24.102 (k)] • Don’t reimburse property owner forincidental expenses (closing costs, etc.) [49 CFR 24.106] • Don’t offer to acquire buildings, structures, other improvements [49 CFR 24.105 (a)]

16. Appraisal & Acquisition continued You could lose your federal funds if you: • Don’t negotiate in good faith with property owner [49 CFR 24.102 (f)] • Don’t provide written justification of an administrative settlement. [49 CFR 24.102 (i)] • Don’t inform donating property owner of the right to just compensation based on an appraisal of fair market value [49 CFR 24.108] • Don’t make payment to property owner before requiring the surrender of possession of the property [49 CFR 24.102 (j) ]

17. Relocation assistance You could lose your federal funds if you: • Don’t follow General Relocation Requirements [49 CFR 24.202]

18. Relocation assistance You could lose your federal funds if you: • Do ask the displacee to waive their relocation entitlement [49 CFR 24.207(f)]

19. Program management You could lose your federal funds if you: • 15. Don’t acquire adequate interest to construct, operate, and maintain highway facility [23 CFR 710.305 (b)] • 16. Don’t certify that all right-of-way clearance, utility and railroad work is done before proceeding to construction [23 CFR 635.309 (b)] • 17. Don’t have adequate staff or organization to carry out Uniform Act and related right-of-way responsibilities [23 CFR 710.201 (a)]

20. Program management continued You could lose your federal funds if you: • 18. Don’t have an approved right-of-way operations manual [23 CFR 710.201(c)] • 19. Don’t provide adequate oversight of local public agency or consultant right-of-way activities [23 CFR 710.201(h)] • 20. Don’t have adequate property management procedures[23 CFR 710.401]

21. Program management continued You could lose your federal funds if you: • 21. Don’t evaluate safety impacts of disposals or leases[23 CFR 710.403(a)] • 22. Don’t charge fair market value for disposals or leases [23 CFR 710.403(e)] • 23. Don’t reinvest money from disposals in other Title 23 Projects [23 CFR 710.403 (f)] • 24.Don’t comply with State DOT policies and procedures [23 CFR 710.409 (a)] • 25. Don’t maintain adequate documentation (the “Almost Golden” rule)

22. The “Almost Golden Rule” • “If it ain’t documented, it didn’t happen!” [23 CFR 710.201(e)]

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

24. QUESTIONS?? Meghan Bayer, mbayer@tierra-row.com Mack Dickerson, mdickerson@tierra-row.com 505-820-6656 800-887-0847

25. Right of Way Certifications Process and procedures

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

27. Uniform Act • Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (Public Law 91-646)

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

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

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

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

32. Right of Way Certification Request cont’d • The request must contain the following: • Scope of work/Project termini • That there is no right of way necessary for the project and the project is being constructed within the existing right of way (or) • Certify that all of the necessary new right of way for the project has been fully acquired. (i.e. 24 takes, 10 CME’s and/or 42 TCP’s) in accordance with 23 CFR 635.309 (c)(1)

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