Rights of Way
Q. What requirements govern a transit property signing a lease agreement for a park and ride, and purchasing a right of way for rail development? What are the documentation requirements?
A. Real property must be acquired, managed, and used in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (Uniform Act or URA) and 49 CFR part 24, which provide protections for owners and lessees of real property to be acquired as part of an FTA assisted project. Procurements of real property consisting of land and any existing buildings and structures on that land are generally beyond the scope of Circular 4220.1F. More guidance is included in the most recent edition of FTA Circular 5010.1, providing “Grant Management” guidance. (Revised: October 2010)
Q. What regulations apply when a transit property acquires an easement or a right of way? Is easement considered real property?
A. An acquisition of an easement is treated like any other real estate acquisition. An agency acquiring real property to be used on a Federal project must develop procedures that comply with 49 CFR Part 24. (Revised: October 2010)
49 CFR Part 24 contains the implementing regulations for the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended to date (the Uniform Act). The agency's procedures should also comply with individual state law. Many FTA transit agencies will modify the State Highway Administration's procedures manual to fit the transit organization and program.
Q. When purchasing a right of way, is it acceptable if the price is within a certain percent of the appraisal value? What if the price exceeds the appraisal value by a great amount?
A. When purchasing a right of way it is not acceptable if the price is within a percent of the appraisal value. The offer amount can be no less than the approved appraisal of fair market value, taking into account the value of allowable damages or benefits to any remaining property. The purchase price may exceed the amount offered as just compensation when reasonable efforts to negotiate an agreement at the amount have failed and an authorized agency official approves such administrative settlement as being reasonable, prudent, and in the public interest. When there is Federal participation in the acquisition costs, the agency must document its files with a written justification to indicate that available information supports such a settlement. Chapter IV in FTA's Grant Management Requirements, Circular 5010.1D, requires FTA's prior concurrence when the settlement is $50,000 higher than the offer. Therefore, for Federal participation in the increase, the transit grantee would have to submit to FTA a written analysis that supports the proposed settlement. (Revised: October 2010)
Q. Where can one find a sample RFP and evaluation criteria for a right of way purchase?
A. In order to assure that the transit grantee possesses sufficient knowledge of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 implementing regulations at 49 CFR Part 24 and to assure efficient administration of its real estate program, FTA encourages grantees to employ appraisers, qualified to value public acquisitions, and experienced acquisition and relocation consultants. An acquiring agency can network with other transit grantees for samples of their RFP's to obtain qualified professionals and for copies of their evaluation criteria for such acquisitions. (Reviewed: October 2010)
Q. Do you have to advertise for a right of way purchase? Does the advertisement need to appear before starting the process?
A. Generally, the process for selecting the location (or right of way) upon which the project will be constructed is accomplished in the National Environmental Protection Agency (NEPA) evaluation or process. The NEPA process and state environmental consideration process often requires that public agencies obtain input from the public regarding location. Often the grantee will advertise and conduct public meetings for further input from the public. (Revised: October 2010)