Public Interest Finding (Right of Way)

Purpose

MnDOT must acquire all of the right of way necessary to construct a project prior to project authorization from Federal Highways Administration (FHWA). If it has not acquired all of the property, MnDOT can prepare a Public Interest Finding (PIF), which is a conditional approval to proceed with authorization, letting, and award of a project.

When to use this subject

Per 23 CFR §635.309 (c) (3), "The acquisition or right of occupancy and use of a few remaining parcels is not complete, but all occupants of the residences on such parcels have had replacement housing made available to them in accordance with 49 CFR 24.204. The State may request authorization on this basis only in very unusual circumstances. This exception must never become the rule. Under these circumstances, advertisement for bids or force-account work may be authorized if FHWA finds that it will be in the public interest."

A PIF is a seldom-used tool that the Director of Office of Land Management (OLM) or FHWA can approve at the discretion. It applies to projects where right of way acquisitions are not complete for some parcels at the time of project authorization. Through the FHWA Stewardship Agreement, the Office of Land Management has been delegated the power to approve a PIF on non-interstate projects; FHWA still retains responsibilities for interstate projects.

MnDOT and FHWA follow statutory and regulatory requirements that best serve the public interest. In certain situations such as a specific project, it may be in the public interest to deviate from such requirements. Since the general requirements address the proper acquisition process, deviating from this process should be well documented and shown as a benefit to the public (per 23 CFR §635.309 (c)(2)&(3)), but there is no prepared language to use.

How this subject fits into the overall project development process

There is a PIF work package in P6. Approximately eight to ten months before letting, if there are any indications that right of way will not be purchased prior to letting, the project manager needs to schedule a meeting with the District Right of Way Supervisor, the Director and Assistant Director of OLM, and the OLM Project Coordination Supervisor to discuss options. Some of these options include delaying the letting so there is time to purchase all of the right of way, removing portions of the project that still need parcel acquisitions, or obtaining PIF approval if it is in the best interest of the public.

The PIF needs to be executed 8 weeks before letting. If the project manager receives approval to proceed with a PIF, the district drafts it for OLM review about ten weeks before the letting. If the PIF requires FHWA approval, drafting it needs to start another 30 days before that ten-week mark as it will need to be executed 30 days earlier than it would for a state approval. There is a PIF template in the Real Estate and Land Management System (REALMS) that districts can use for consistency.

The state must relocate all individuals and families to decent, safe, and sanitary replacement housing or it must make that housing available to those individuals and families. It must also prove that it has legal and physical possession of the right of way, the right to occupy and use that right of way, or that it has made replacement property available to the occupants of any parcels the state has not yet purchased.

Organizations involved

MnDOT:

Office of Land Management
Contract Management Section
Project Managers
District Right of Way/Land Management

FHWA
Municipalities and counties
Property owners