Engineering process | Scoping | Right of Way
Right of Way process
Purpose
MnDOT must acquire all of the right of way necessary to construct a project. The purpose of right of way policies and procedures is to ensure a uniform process that meets federal and state laws/requirements for the fair and equitable treatment of persons from whom the state acquires land and/or displaces.
Right of way in project development and delivery
A "Right of Way Project" involves the temporary and/or permanent acquisition of land or other property rights on at least one parcel of land as required for a transportation improvement project. The state can only acquire enough land necessary for highway purposes and must pay fair market value for that land.
The process to acquire the right of way is complex especially when relocation is involved and you must work with your District Right of Way/Land Management group if property or other rights need to be acquired for your project. See the Right of Way Manual for more details.
There are several right of way work packages in P6. Work with District Right of Way/Land Management staff to determine the correct work package to include in your project schedule and necessary modifications to activity durations for projects affecting a significant number of properties.
The right of way process typically takes 18 to 24 months from the time District Right of Way staff receive final construction limits to having possession of the property needed by the project letting date. The timeline could be longer depending on the number of properties to be acquired and if they involve complexities such as relocation. This timeline includes the eminent domain process if properties need to be condemned to obtain title and possession.
During the scoping and preliminary design phases of project development you need enough information about anticipated right of way needs and potential relocations (persons, structures, etc) to broadly assess environmental impacts. Right of Way staff will not be able to determine precise right of way needs until they receive final construction limits, which usually occurs late in the preliminary design phase or early in the final design phase.
There may be times when it is necessary to refine the project design to avoid or minimize impacts to sensitive parcels. Strive to achieve a balance between the need to advance the project and yet use only the necessary right of way. Any changes to “final” construction limits that require acquisition changes can cause delay to your project delivery.
Right of way acquisition normally occurs after:
- You have environmental clearance (including location approval)
- You have received approval of a final geometric layout (if applicable)
- You have established construction limits to define actual right of way needs for partial takings (construction limits are not necessary for definite full takings)
- The preacquisition phases, which include ordering titles, district field and office work, Office of Land Management (OLM) operations, appraisals, and fund encumbrance are complete
- Municipal consent had been obtained (if applicable)
There may be cases where portions of the right of way acquisition may begin earlier than normal for projects that use state funds for right of way (hardship and protective buying). These cases must meet certain conditions including public involvement requirements and environmental decisions in accordance with 23 CFR Sec 710.503 (a). The District Right of Way/Land Management group initiates the early acquisition process after assessing risks. Completion of an Environmental Risk Worksheet may be necessary. Acquisition must follow special procedures as defined in Section 121 of the Right of Way Manual.
Naturally, property owners are very concerned about any expected takings or access changes to their property. Early and frequent communication with them by District Right of Way staff through the acquisition process and by you as project manager regarding project design or timeline changes is important to the development and delivery of your project. Questions and concerns can be addressed earlier in the process to help minimize unforeseen issues later in the process that can result in delays.
The Office of Land Management (OLM) has resources they provide to citizens about the right of way process. Guidebook for Property Owners is a booklet available to individuals from whom the state is acquiring property. Relocation Assistance: Your Rights and Benefits is a booklet available to people who will be displaced because of right of way acquisition.
It is important to provide as much time as possible for good faith negotiations to occur during the acquisition process. Property owners are entitled to obtain professional services (such as appraisals/estimates or legal) to assist with negotiations. MnDOT may utilize the condemnation process when an agreement through negotiation cannot be reached or is necessary to obtain a property with unclear ownership. Court timeframes and legal costs ultimately can add to the project delivery timeline and overall costs that could have possibly been avoided with more negotiation time.
The MnDOT Right of Way Manual provide more details about right of way acquisition.
Right of way in the environmental process
Right of way acquisition cannot occur until you obtain environmental clearance (i.e. you must have a Record of Decision (ROD), Finding of No Significant Impact (FONSI), or Categorical Exclusion (CATEX) determination or equivalent document).
If the project requires permanent right of way or long-term easements, discuss them in the environmental document. Include the amount (even if it is approximate) of right of way as well as the land use types and impacts. You need to have enough information about the right of way to establish whether it is a “significant amount” in a CATEX context (23 CFR §771.117). Right of way impacts can also be important in discussing other effects such as:
- Farmlands
- Flood plains
- Historic site involvements
- Land use impacts
- Parklands, etc. (4(f) and 6(f))
- Social and economic impacts
- Wetlands
You also need to cover any needed temporary construction easements in the appropriate documents.
According to the Right of Way Manual, if the project is going to cause the relocation of homes or businesses, you must discuss them in detail in the environmental document. A project with a small number of unoccupied building relocations may still qualify as a CATEX, but if the buildings are occupied, the project would not normally qualify as a CATEX unless special circumstances exist. You would need to discuss these situations with the Federal Highway Administration (FHWA).
A CATEX determination may hinge, in part, on whether significant right of way acquisition or relocations are necessary and whether any public controversy exists. A CATEX may also hinge, in part, on whether substantial access control changes will occur. You do not need to know the exact acreage during the early phases. If a public hearing is held, present right of way information describing the impacts and state procedures according to the Right of Way Manual procedures.
If the Project Memorandum is the environmental clearance document (along with a Certificate of Acceptance Form 1) Right of Way acquisition must wait until that Project Memorandum receives approvals along with other conditions.
All projects that cause owners and occupants of homes and businesses to relocate require relocation completion plans. If there is a separate location phase for the project, you will need a Conceptual Stage Relocation Plan during the environmental study phase for preparing environmental documents. All projects also require an acquisition relocation program plan. Present special problems and their possible solutions at the public hearing. If there will not be a public hearing, include the relocation studies in the environmental documents and discuss them at any public meetings.
Update relocation information and develop a detailed relocation plan prior to acquisition.
Other agencies
The Federal Highway Administration (FHWA) is involved in federally funded actions. Other agencies’ involvement normally occurs when the state is purchasing property from an outside agency. At those times, coordination between MnDOT acquisition activities of those of government entities is required.
Glossary
Access control: A right Mn/DOT acquires from adjacent landowners that restricts ingress to and egress from the abutting property to the trunk highway
Acquisition: The process of acquiring real property (real estate) or some interest therein
Adverse possession: A method of acquiring title by possession under certain conditions. Generally, possession must be actual, under claim of right, open, continuous, notorious, and exclusive
Appraisal: The act or process of estimating the monetary value of an interest in property. The appraisal is to be independent and impartial and prepared by a qualified appraiser. It must set forth an opinion of defined value for an adequately described property. The value will be assigned as of a specific date and will be supported by the presentation and analysis of relevant market data. The term appraisal is also frequently used as a synonym for the written appraisal report.
Commissioner’s order: A numbered document signed by the Commissioner of Transportation that defines land or property rights needed for transportation purpose
Condemnation: The legal process of acquiring private property for public use or purpose through the acquiring agency’s power of eminent domain. Condemnation is usually not used until all attempts to reach a mutually satisfactory agreement through negotiations have failed. An acquiring agency then goes to court to acquire the needed property.
Covenant: Generally, almost any written agreement. Most commonly in real estate, assurances set forth in a deed by a grantor or implied by law.
Deposition: Written testimony taken under oath.
Direct purchase: The act of presenting the state’s appraisal offer to a property owner in an attempt to secure a deed to the property need for a project.
Easement: Generally the right of one person to use all or part of the property of another person for some specific purpose. Easements can be permanent or temporary (i.e., limited to a stated period of time). The term may be used to describe either the right itself or the document conferring the right.
Eminent domain: A governmental right to acquire property for public use by condemnation and the payment of just compensation
Encroachments: The construction onto the property of another, (e.g., retaining wall, fence, building) without authorization from the property owner.
Fair market value: The sale price that a willing and informed seller and a willing and informed buyer can agree to for a particular property.
Fee: A title that signifies all ownership of all the rights in a parcel of real property.
Field title: A report of property interests recorded and unrecorded affecting a specific taking. It includes names, addresses, and telephone numbers of all parties of interest.
Final certificate: A recorded document that describes the property acquired by a public entity through a condemnation action. The document describes the degree of the estate acquired, the legal description of each property acquired and any conditions attached to the acquisition. The Final Certificate takes the place of the acquisition deed filed in transaction acquired through direct purchase.
Just compensation: The amount of loss for which a property owner is compensated when his or her property is taken.
Lien: A charge against a property in which the property is the security for payment of a debt. A mortgage is a lien. So are taxes. Customarily, liens must be paid in full when the property is sold.
Minimum Damage Assessment (MDA): An appraisal estimate not based on a full before and after appraisal. It is used on parcels with lower value with uncomplicated takings.
Parcel number: An assigned number generally no larger than three digits that defines a specific property on a specific control section affected by a transportation project
Parcel sketch: A scale map of each parcel showing the landowner’s entire ownership and how it is affected by the proposed right of way acquisition
Permit to construct: A revocable authorization by the property owner to allow an immediate right of entry on the property before just compensation is paid by the acquiring authority
Right of way cleared: Full right of title and possession of all right of way has been acquired and that all occupants have been vacated, paid, and afforded relocation rights under the Federal Uniform Act. The term does mean that all structures have been removed from the right of way.
Subdivision: A tract of land that has been divided into blocks or plots with street, roadways, open areas, and other facilities appropriate to its development as residential, commercial, or industrial sites.
Turnback: The release of a roadway and accompanying right of way to a lower road authority.
Vacation: The release of right of way to the abutting owner(s) that was taken over by orders from a lower authority but is no longer needed for transportation purposes. The area cannot include a driving surface.