FLH PDDM Chapter 9 - Eastern Federal Lands Highway Division

9.4.G. Right-of-Way and Utilities. (continued)Upon receipt of the right-of-way agreements from the acquisition agency, the right-of-way designer shall seethat all negotiated items such as fences, cattleguards, road approaches, building relocations, etc. are properlynoted on the construction plans and rough draft special contract requirements prepared.When the State or other cooperating agency cannot obtain the R/W by purchase, it is often obtained bycondemnation under the right of eminent domain. This is a time-consuming procedure as well as one havingsome legal ramifications. Therefore, when the State or cooperating agency reports that condemnation is likely,the designer shall review the plans for possible line shifts or other modifications to eliminate the need forcondemnation.When right-of-way is condemned, the usual procedure is to get a right-of-entry to the land by a court ordereddeclaration of taking so construction can proceed. The court will determine (1) if the need for the right-of-wayexists, (2) if its use will serve a public purpose, and (3) that the landowner receives payment for the land. Thecourt requires the taking agency to post funds with the court equal to the estimated value of the property. Ata later time the court, usually by jury trial, determines the value of the right-of-way and requires the takingagency to pay this sum to the landowner. The court then transfers title of the right-of-way to the taking agencyby court order.In these cases the designer will record the status of the R/W as being under condemnation and will not approvethe project for construction without at least a right-of-entry document.For projects requiring a housing or business relocation, obtain a statement from the State or cooperating agencythat relocation assistance was provided or tendered. This procedure is mandatory and is normally part of theright-of-way certification furnished by the acquiring agency.Construction easements grant the right to construct supporting elements of the project outside the normalright-of-way on private land. The State or cooperating agency acquires them in the same manner as right-ofway.Often there is the need for a construction easement after the project is underway. In these cases the projectengineer may work with the designer to document the need for the construction easement and to locate it. Thedesigner prepares a description of the construction easement and requests the State or cooperating agency toobtain it.FHWA may obtain some construction easements (such as for temporary haul roads, stockpile sites or materialsources) directly from a landowner. These are special cases and are done only when the cost to FHWA wouldbe the same or less than if obtained by the State or cooperating agency.2. Utilities. FAPG CFR 645A and FAPG CFR 645B provide policy and guidelines on adjustments to utilities.The highway operating agencies have various degrees of authority to designate and to control the use of R/Wacquired for public highway purposes. Their authorities depend upon State laws or regulations. Utilities alsohave various degrees of authority to install their lines and facilities on the R/W.The general policy is that utilities can occupy the right-of-way if they do not conflict with the integrity,operational safety, or functional and aesthetic quality of the highway facility.9 - 110