Eminent Domain Report

I'm at the IRWA Education Conference in Atlanta, and yesterday I attended a number of interesting sessions.  Since I don't have time to write about all of them, I want to focus on the presentation that discussed local agency practices where their projects receive federal dollars.  And even that one session contained far too much information to reduce to a single blog post, so I'll focus on two of the four speakers, FHWA Realty Specialist Marshall Wainwright and Oklahoma Department of Transportation Assistant Division Manager for Right-of-Way Kevin Stout. 

Mr. Wainwright started the discussion with an overview of FHWA"s role in overseeing the use of its funds in local projects.  He noted that agencies must comply with the Uniform Relocation Act any time any phase of a project involves federal funds.  He also talked about the general sequence of events any time FHWA funds are involved.  Specifically, he explained that environmental clearance must precede right of way acquisitions which must precede contracting for the project's construction.  (Note that this applies specifically to projects with FHWA funding; other federal agencies, including the Federal Transit Administration ["FTA"] will not necessarily be the same.)

After the presentation, I discussed with him one of the issues I have been speaking (and writing) about for the last few years.  What happens when California's new possession rules result in it being impossible to keep a project on schedule if one follows literally the required sequence?  And I must admit, the answers I got did not provide me with much comfort. 

Mr. Wainwright's first suggestion (one echoed by several other people who had gathered to listen to the discussion) was that the local agencies should simply plan their projects better so that they do not have such problems.  This sounds like good advice, and it certainly advances another of the arguments I've been making for years:  agencies should hire their eminent domain attorneys early in the design process to help ensure that the critical path scheduling aligns with current law.

But the response only goes so far.  What about projects that were planned before the rules changed?  Nobody had a very helpful answer to this question, except to suggest that agencies make extra efforts to obtain voluntary acquisitions in these cases.  Ultimately, this left me pretty unsatisfied.  Local agencies should not be faced with non-compliance with their federal requirements simply because California's procedural rules have changed.  To me, this remains a serious flaw in current law.

Mr. Stout then spoke from a state DOT perspective, offering his "top 10" things local agencies do to get themselves in trouble with their federal funding.  I'm paraphrasing him here, but his list was good, so I wanted to include all 10 points:

1. Not obtaining appraisals where the property's value exceeds $10,000.
2. Not offering the property's owner an opportunity to accompany the appraiser during the appraiser's site inspection.
3. Not obtaining an independent review appraisal.
4. Not obtaining proper signatures on the conveyance documents from all record owners.
5. Not obtaining documents showing the signatory's authority to sign.
6. Not properly accounting for the interests of lien holders, especially for easement acquisitions.
7. Not budgeting for relocation.
8. Having right of way agents cross the line, participating in coercive efforts to obtain "voluntary" deals.
9. Not taking heed of the FHWA's presentation, "50 Ways to Lose Your Money."
10. Viewing the Uniform Relocation Act as the "Uninformed Relocation Act," and ignoring its provisions. 

Other than the "50 Ways to Lose Your Money" presentation, this seems like a pretty good "what not to do" summary.  As for "50 Ways," there are several versions of this presentation available online.  A recent version of the "50 Ways" presentation comes from Dave Leighow at the 2011 Joint AASHTO Right of Way and Utilities and Design Subcommittee Meetings last month in St. Louis.  Just reading the slides, I have to agree with Mr. Stout:  this is something everyone involved in federally funded local agency projects should see at least once. 

It was an interesting program, and I thought all four speakers provided great insights into a very complicated process.