Right of Way Manual 2011.03.01

Document technical information

Format pdf
Size 2.3 MB
First found Jun 9, 2017

Document content analysis

Language
English
Type
not defined
Concepts
no text concepts found

Persons

Organizations

Places

Transcript

Right of Way
Manual
Forward Corrections To:
Grady R. Morris
[email protected]
(919)707-4385
2011.03.01
Chapter 1 INTRODUCTION
1.01 FOREWORD
The purpose of this Manual is to consolidate information and instructions as to
the organization, operation, policies and procedures of the Right of Way Branch,
a unit within the Division of Highways, of the North Carolina Department of
Transportation, hereafter referred to as the Department.
Revisions to this Manual will be coded in accordance with the index system of
the Manual. The right of way employee is encouraged to read and study the
entire Manual and not to rely on any one section as being complete for a
particular operation, as some operations may be covered in one or more sections
of the Manual.
Suggestions about how to improve or streamline our procedures and any
constructive criticism will be welcomed from all right of way personnel.
1.02 THE RESPONSIBILITY OF THE RIGHT OF WAY
EMPLOYEE TO THE PUBLIC
All Right of way employees should constantly bear in mind that the good will of
the public toward the Department and to state government depends upon their
attitude, conduct, and actions toward the people with whom they are dealing.
They should also, at all times, remember that they have a dual responsibility; that
is, to see that the individual property owners receive just compensation and are
advised of their rights, and at the same time, to remember that they represent all
of the people of the state in their capacity as taxpayers and to see that public
funds are spent wisely. They should, under even the most trying conditions,
remain courteous and retain an open mind in dealing with those people from
whom right of way is being acquired.
1.03 CODES OF ETHICS
By reason of the human aspects of the work, it is believed that personnel
engaged in right of way acquisition should be governed by a code of ethics.
Codes of Ethics have been formulated by the International Right of Way
Association and by the Appraisal Institute to guide the actions of individuals
engaged in the right of way profession. All Right of Way Employees are
encouraged to adhere to the following Code of Ethics.
The Code of Ethics of the International Right of Way Association is
quoted as follows:
1
RECOGNIZING the responsibility of our profession to the people and business
of our country, and believing that we should encourage and foster high ethical
standards in our profession, we do hereby adopt the following CODE OF
ETHICS for our constant guidance and inspiration predicated upon the basic
principle of truth, justice, and fair play.
1.
To show faith in the worthiness of our profession by industry, honesty, and
courtesy, in order to merit a reputation for high quality of service and fair
dealing.
2.
To add to the knowledge of our profession by constant study and to share
the lessons of our experience with our fellow members.
3.
To build an ever increasing confidence and good will with the public and
our employers by poise, self-restraint, and constructive cooperation.
4.
To ascertain and weigh all of the facts relative to real properties in making
an appraisal thereof, using the best and most approved methods of
determining the just and fair market value.
5.
To conduct ourselves in the most ethical and competent manner when
testifying as an expert witness in court as to the market value of real
properties, thus meriting confidence in our knowledge and integrity.
6.
To accept our full share of responsibility in constructive public service to
community, state and nation.
7.
To strive to attain and to express a sincerity of character that shall enrich
our human contacts, ever aiming toward that ideal -- "The Practice of the
Golden Rule".
1.04 NORTH CAROLINA DEPARTMENT OF
TRANSPORTATION ETHICS POLICY,
Revised 8/1/2007, Reviewed 3/1/2010
Preamble
The holding of a public office by appointment or employment is a public trust.
Independence and impartiality of public officials and employees of the
Department of Transportation are essential to maintain the confidence of our
citizens.
2
The members of the Board of Transportation, officers and employees of the
North Carolina Department of Transportation have a duty to the people of North
Carolina to uphold the public trust, prevent the occurrence of conflicts of interest,
and endeavor at all times to use their position for the public benefit.
To this end, members of the board, officers, and employees of the Department of
Transportation shall ensure that an atmosphere of ethical behavior is promoted
and maintained at all times.
Introduction
The major transportation functions of the North Carolina Department of
Transportation (NCDOT) include highways, public transportation, motor vehicles,
railways, bicycles, pedestrian facilities, aeronautics and ferries. The NCDOT is
statutorily responsible for providing the necessary planning, construction,
maintenance, and operation of an integrated statewide transportation system for
the economical and safe transportation of people and goods as provided for by
law, including the registration of transportation vehicles and driver’s license. It is
in the public interest to establish policies on ethical conduct which set forth a
code of behavior to be followed by employees of the NCDOT that is consistent
with federal and state laws, as well as related Department policies. These
policies on ethical behavior are intended to guide the actions of all employees of
NCDOT.
Employees of the NCDOT are expected to maintain and exercise the highest
ethical standards of conduct in the performance of their duties and
responsibilities, and as a condition of employment shall abide by this policy.
Employees of the NCDOT are expected to conduct themselves in a manner that
prevents all forms of impropriety, to include but not limited to, placement of self
interest above public interest, partiality, prejudice, favoritism and undue
influence.
This policy applies to all employees of the NCDOT and shall be brought to the
attention of each employee during orientation and through annual training by
Human Resources. Failure to comply with this policy will be grounds for
disciplinary action up to and including dismissal.
Definitions
1. Conflict of interest - A conflict of interest arises when an employee’s
private interest, usually of a personal, financial or economic nature,
conflicts or creates the appearance of a conflict with the employee's
public duties and responsibilities.
2. Gift - A gift is anything of value given without compensation.
3
3. Favor - A favor is any opportunity, service, accommodation, use of facility,
or other benefit made available for less than fair market or normal value
given in exchange for being influenced in the discharge of one’s duties
and responsibilities.
4. Employee - Employee for the purposes of this policy shall mean both
State officer and employee holding an office or employment with the North
Carolina Department of Transportation.
5. Family - Family for the purposes of this policy includes spouse, you and
your spouse’s children, parents, in-laws, step-parents, step-child, stepsibling, grandchildren, brother, sister, uncle, aunt, first cousin, also any
dependent person living in the same household.
I. Conflict of Interest
No employee shall have any interest, financial or otherwise, direct or indirect, or
engage in any business, transaction or activity that is in conflict or could appear
to be in conflict with the proper discharge of his or her duties. An appearance of
a conflict of interest exists when a reasonable person would conclude from the
circumstances that the employee’s ability to protect the public interest, or perform
public duties, is compromised by personal interest. Examples of conflict of
interest are as follows:
A. Misuse of Official Position
No employee shall use or attempt to use his or her position with the
NCDOT to secure unwarranted privileges or advantages for himself,
herself or others.
B. Contracts and Purchasing Order Agreements
No employee authorized to draft, negotiate, administer, accept or
approve any contract, subcontract or purchase order agreement on behalf
of the State, or any member of his/her family, shall have, directly or
indirectly, any financial interest in such contract, subcontract or purchase
order agreement.
In an effort to avoid the appearance of impropriety while conducting
the public’s business, employees will be restricted from accepting any
employment or engaging in any relationship following their
employment with NCDOT with any business entity in connection with any
4
contract, subcontract or purchase order agreement that they participated
in any of the following activities:
1. Drafting the contract, subcontract or purchasing order agreement;
2. Defining the scope of the contract, subcontract or purchasing order
agreement;
3. Selection of the business entity for services;
4. Negotiation of the cost of the contract, subcontract or purchasing
order agreement, including calculation of man-hours, fees or extent
of services;
5. Administration of the contract or purchase order agreement.
This section is not intended to prohibit employment with a business entity
if the employment is on work other than the specific contract, subcontract
or purchase order agreement with which they were involved. An
exception to this section of the policy may be granted when recommended
by the Secretary of Transportation and approved by the Board of
Transportation.
C. Real/Personal Property
No employee or member of his/her family shall use an employee’s position
to profit from, directly or indirectly, an interest in real or personal property.
D. Business Opportunities
No employee or member of his/her immediate family shall accept
any business or professional opportunity when such person knows, or
reasonably should know, that the opportunity is being afforded to them
with the intent to influence the performance of the employee’s official
duties.
E. Outside Employment and Activities
In accordance with NCDOT Secondary Employment policy, the
employment responsibilities to the State are primary for any employee
working full-time and and other employment in which that person chooses
to engage is secondary. An employee shall have the approval from the
division, branch or unit manager before engaging in any secondary
employment.
No employee shall accept employment or render services for any
private or public interest when that employment or service is in conflict
5
with the discharge of his or her official duties or when that employment
may tend to impair his or her objectivity or independence of judgement in
the performance of such duties or induce them to disclose confidential or
any information gained through their State duties.
F. Use of Information
No employee shall, directly or indirectly, use, disclose, or allow the
use of official information which was obtained through or in connection
with his or her official duties and which has not been made available to the
general public for the purpose of furthering the private interest or personal
profit of any business entity or person, including the employee.
II.
Gifts and Favors
No employee shall knowingly, directly or indirectly, ask, accept, demand,
exact, solicit, seek, assign, receive, or agree to receive anything of value
for the employee or for another person, in return for being influenced in
the discharge of the employee’s duties and responsibilities.
No employee shall solicit for a charitable purpose a gift from a subordinate
employee, except as provided in NC General Statute, Section 138A-32
(b).
No employee shall solicit or accept, directly or indirectly, on behalf of
himself or herself or family member, any gift or favor from a contractor,
subcontractor, vendor, supplier, lobbyist or any other individual or other
business entity that:
1. Has or is seeking to obtain contractual or other business or
financial relations with the Department;
2. Conducts operations or activities that are regulated by the
Department;
3. Have interests that may be substantially affected by the
performance or non-performance of the employee’s official
duties.
Exceptions to this section, gifts and favors, are noted in NC General
Statute, Section 138A-32 (e).
Any such gift or favor received from a contractor, subcontractor, supplier,
lobbyist or any other individual or other business entity must be reported
and remitted immediately through the appropriate chain of command to
the Secretary of Transportation.
6
III. Consultation
Employees are urged to consult with the Division of Human Resources,
Classification, Compensation & Policy Unit staff when an ethical question arises
under this policy.
IV.
Distribution and Training of Ethics Policy
A copy of this policy will be presented to all new employees at the time of
employment and posted in a conspicuous place throughout the Department and
made available on the NCDOT web site. Training shall be provided by Human
Resources every other year.
V.
Enforcement and Compliance
This policy will be enforced by the Secretary of Transportation. Failure to comply
with the above policy will be grounds for disciplinary action up to and including
dismissal from employment with the NCDOT. Conflicts of interest or unethical
behavior that defrauds the Department, vendor, contractor, subcontractor, or
supplier may also be violations of criminal law and may result in criminal
prosecution.
VI.
Disclosures
Any employee who identifies a conflict of interest shall disclose the same
promptly in writing through appropriate management channels to the Secretary of
Transportation.
1.05 STATUTES GOVERNING CONDUCT & POLITICAL
ACTIVITY OF EMPLOYEES
Conduct of employees is governed by the following statutes:
G.S. 136-13. Malfeasance of officers and employees of Department of
Transportation, members of Board of Transportation, contractors and
others.
(a) It is unlawful for any person, firm, or corporation to directly or indirectly
corruptly give, offer, or promise anything of value to any officer or employee
of the Department of Transportation or member of the Board of
Transportation, or to promise any officer or employee of the Department of
7
Transportation or any member of the Board of Transportation to give anything
of value to any other person with intent:
(1) To influence any official act of any officer or employee of the
Department of Transportation or member of the Board of Transportation;
(2) To influence such member of the Board of Transportation, or any
officer or employee of the Department of Transportation to commit or aid
in committing, or collude in, or allow, any fraud, or to make opportunity for
the commission of any fraud on the State of North Carolina; and
(3) To induce a member of the Board of Transportation, or any officer
or employee of the Department of Transportation to do or omit to do
any act in violation of his lawful duty.
(b) It shall be unlawful for any member of the Board of
Transportation, or any officer or employee of the Department of
Transportation, directly or indirectly, to corruptly ask, demand,
exact, solicit, accept, receive, or agree to receive anything of value
for himself or any other person or entity in return for:
(1) Being influenced in his performance of any official act;
(2) Being influenced to commit or aid in committing, or to collude in, or
allow, any fraud, or to make opportunity for the commission of any fraud
on the State of North Carolina; and
(3) Being induced to do or omit to do any act in violation of his official duty.
(c)The violation of any of the provisions of this section shall be
cause for forfeiture of public office and shall be a Class H felony
which may include a fine of not more than twenty thousand dollars
($20,000) or three times the monetary equivalent of the thing of
value whichever is greater.
G.S. 136-14. Members not eligible for other employment with
Department; no sales to Department by employees; members
not to sell or trade property with Department; profiting from
official position.
No member of the Board of Transportation shall be eligible to any
other employment in connection with the Department of
Transportation, and no member of the Board of Transportation or any
salaried employee of the Department of Transportation shall furnish or
8
sell any supplies or materials, directly or indirectly, to the Department
of Transportation, nor shall nay member of the Board of
Transportation, directly or indirectly, engage in any transaction
involving the sale of or trading of real or personal property with the
Department of Transportation, or profit in any manner by reason of his
official action or his official position, except to receive such salary,
fees and allowances as by law provided. Violation of this section shall
be a Class I felony which may include a fine of not more than twenty
thousand dollars ($20,000), or three time the value of the transaction.
Political activity of employees is governed by the following state statutes:
G.S. 136-13.1. Use of position to influence elections or political action.
No member of the Board of Transportation nor any officer or employee
of the Department of Transportation shall be permitted to use his
position to influence elections or the political action of any person.
G.S. 126-13. Appropriate political activity of State employees defined.
As an individual, each State employee retains all the rights and obligations of
citizenship provided in the Constitution and laws of the United States of America;
however, no State employee subject to the Personnel Act or temporary state
employee shall:
1.
Take any active part in managing a campaign, or campaign for political
office or otherwise engage in political activity while on duty or within any period of
time during which he is expected to perform services for which he receives
compensation from the State;
2.
Otherwise use the authority of his position, or utilize State funds, supplies
or vehicles to secure support for or oppose any candidate, party, or issue in an
election involving candidates for office or party nominations, or affect the results
thereof.
(b) No head of any State department, agency, or institution or other State
employee exercising supervisory authority shall make, issue, or enforce any rule
or policy the effect of which is to interfere with the right of any State employee as
an individual to engage in political activity while not on duty or at times during
which he is not performing services for which he receives compensation from the
State. A State employee who is or may be expected to perform his duties on a
twenty-four hour per day basis shall not be prevented from engaging in political
activity except during regularly scheduled working hours or at other times when
he is actually performing the duties of his office. The willful violation of this
subdivision shall be a Class I misdemeanor.
9
G.S. 126-14. Promise or threat to obtain political contribution or support.
(a) It is unlawful for a State employee or a person appointed to State office,
other than elective office or office on a board, commission, committee, or
council whose function is advisory only, whether or not subject to the
Personnel Act, to coerce:
1.
2.
3.
4.
a State employee subject to the Personnel Act,
a probationary State employee,
a temporary State employee, or
an applicant for a position subject to the Personnel Act
to support or contribute to a political candidate, political committee as defined in
G.S. 163-278.6, or political party or to change the party designation of his voter
registration by threatening that change in employment status or discipline or
preferential personnel treatment will occur with regard to a person listed in
subdivisions (1) through (4).
(b) Any person violating this section shall be guilty of a Class 2 misdemeanor.
(c) A State employee subject to the Personnel Act, probationary State employee,
or temporary State employee who without probable cause falsely accuses a
State employee or a person appointed to State office of violating this section
shall be subject to discipline or change in employment status in accordance with
the provisions of
G.S. 126-35, 126-37, and 126-38 and may, as otherwise provided by law, be
subject to criminal penalties for perjury or civil liability for libel, slander, or
malicious prosecution.
G.S. 126-15. Disciplinary action for violation of Article.
Failure to comply with this article is grounds for disciplinary action which, in
case of deliberate or repeated violation, may include dismissal or removal
from office.
Political activity of employees is governed by the following federal statutes.
The Hatch Act (5 U.S.C. 1502, 1503) reads in part as follows:
1502. Influencing elections; taking part in political campaigns; prohibitions;
exceptions
(a) A State or local officer or employee may not
10
1.
2.
3.
use his official authority or influence for the purpose of interfering with or
affecting the result of an election or a nomination for office;
directly or indirectly coerce, attempt to coerce, command, or advise a
State or local officer or employee to pay, lend, or contribute anything of
value to a party, committee, organization, agency, or person for political
purposes; or
be a candidate for elective office.
1503. Nonpartisan candidacies permitted
Section 1502(a) (3) of this title does not prohibit any State, local officer or
employee from being a candidate in any election if none of the candidates is to
be nominated or elected at such election as representing a party any of whose
candidates for Presidential elector received votes in the last preceding election at
which Presidential electors were selected.
1.06 OUTSIDE OR SECONDARY EMPLOYMENT
Outside or secondary employment by Department personnel is governed by
the North Carolina Office of State Personnel PERSONNEL MANUAL,
Secondary Employment,
Secondary Employment Policy (updated 1/19/2011)
Purpose
The employment responsibilities to the State are primary for any employee working fulltime; any other employment in which that person chooses to engage is secondary. An
employee shall have approval from the agency before engaging in any secondary
employment. The purpose of this approval procedure is to determine that the secondary
employment does not have an adverse effect on the primary employment and does not
create a conflict of interest. (i.e., a conflict between the private interests and the official
responsibilities of the employee) These provisions for secondary employment apply only
to non-State sources of income and do not include a second job or assignment paid from
State funds; those conditions are covered by the policy on Dual Employment.
Secondary employment shall not be permitted when it:
•
Creates either an actual or perceived conflict of interest, or the potential for a
conflict of interest, with the primary employment.
11
•
Impairs in any way the employee’s ability to perform all expected duties, to
make decisions, and carry out in an objective fashion the responsibilities of
the employee’s position.
•
Involves the use of State equipment, facilities, resources, technology or work
hours.
Submission of Request
An employee shall submit a completed PO-102 Request for Secondary
Employment form for Branch/Unit/Division/Section Head approval prior to
engaging in secondary employment. The completed secondary employment
request form shall include the following:
A. Contents of Request
1. A description of the nature of the work or activity.
2. A description of the employer’s business and name of the business, or
if self-employed, the nature of the employee’s business. If a co-owner
of a business, the name of the co-owner(s) and whether the coowner(s) is a current state employee or does business with the State
and of what state agency or university.
3. If self-employed, the names and addresses of proposed clientele,
unless such disclosure would violate a statutory client privilege or a
professional code of ethics. In cases where client confidentiality is
necessary, the employee shall provide non-identifying client
information sufficient to enable management to determine whether
there would be a conflict with the primary employment.
4. The expected schedule and number of hours worked per week and the
anticipated duration of the employment.
5. Other relevant information deemed necessary by agency management
to render a fair and informed decision on the request.
The request shall be submitted through supervisory channels for review and action by
the Branch/Unit/Division/Section head.
B. Approval/Disapproval
The decision to approve or disapprove the request shall be given to the employee in
writing within 15 calendar days of receipt of the secondary employment request.
Approval
12
An approved request shall specify any conditions or approved
requirements associated with the approval. In the case of self-employment
activity, the employee is required to give advance notice of and secure
approval for work for individual clients if there is potential for conflict of
interest. The Branch/unit/Division/Section head is responsible for
reviewing the approved secondary employment form upon promotion,
transfer, or changes in the employee’s classification.
Disapproval
Disapproval or discontinuation of secondary employment by a
Branch/Unit/Division/Section head shall include the specific reason(s) for
the disapproval or discontinuation. The Branch/Unit/Division/Section
head’s decision shall be final. Denial or discontinuation of secondary
employment is not grievable under the department’s employee grievance
policy.
C. Questions
The Branch/Unit/Division/Section heads are responsible for ensuring compliance
with this directive. Questions about whether an employee’s secondary
employment has potential for conflict of interest shall be forwarded in writing to
the Human Resources Director for consideration.
The Branch/Unit/Division/Section head shall prepare a written statement of
concern which shall include the respective employee’s attached secondary
employment request form. The Human Resources Director shall seek the review
of the State Personnel Director when a secondary employment request has
potential for conflict of interest.
Violations/Noncompliance
Failure to comply with the Secondary Employment policy or abuse of this privilege
constitutes a violation of the Secondary Employment request. The approval of this
privilege may be revoked. In addition, a violation of this policy shall be considered
unacceptable personal conduct as outlined in the Disciplinary Action, Suspension and
Dismissal Policy and may be grounds for disciplinary action, up to and including
dismissal.
Employee’s Responsibility
It is the employee’s responsibility to complete a secondary employment form for all
employment that is paid from non-State sources of income annually each January. The
13
employee is responsible for immediately notifying his/her supervisor of any changes in
secondary employment activities.
Forms are to be maintained in the Division/Section.
Note: The PO-102 Request for Secondary Employment form may be printed from the
DOT HR Portal.
Policy
Employees of the Right of Way Branch may accept gainful outside or secondary
employment to be performed in off-duty hours, but only where such employment
involves no direct or indirect conflict of interests, does not affect in any way the
normal competency of the employee in the regular performance of his/her job
responsibilities, and only where permission for such employment has been
granted in writing by the Branch Manager. Furthermore, the employee may not
be called off his regular job during working hours and will not be permitted to use
leave of absence for the performance of any outside or secondary work. Outside
or secondary employment may not exceed 20 hours per week.
In regard to the above policy, outside or secondary employment by Right of Way
personnel is generally discouraged for the reason that Right of Way personnel
must make themselves available to discuss right of way acquisition activities and
problems with property owners at the convenience of the property owner.
Frequently, property owners employed in industry may not be able to leave their
work to discuss personal business during working hours, and it is necessary that
any contacts with them be made after normal working hours or on Saturdays or
Sundays. The successful Right of Way Agent must always bear in mind that the
convenience of the property owner must always be considered.
1.07 CONFLICT OF INTEREST
As defined in the North Carolina Department of Transportation’s Ethics Policy, a
conflict of interest is a situation in which an employee’s private interest, usually of
a financial or economic nature, conflicts or raises a reasonable question of
conflict with the employee’s public duties and responsibilities.
In order to avoid any possible conflicts of interest, the Right of Way Branch has
adopted the following policy guidelines for all Right of Way personnel to adhere
to:
1.
All Right of Way personnel shall refrain from the acquisition, either directly
or indirectly, of any improvements or land residues which are acquired by the
North Carolina Department of Transportation in connection with highway projects
and offered for sale. Many times the owner retains the improvements or
14
purchases them back from the Department. In these cases, employees are
prohibited from making arrangements with the owners for the employee’s
personal acquisition of any improvements which they may retain. Right of Way
personnel are required to sign affidavits or other type certifications indicating that
they have no direct, or indirect, present or contemplated personal interest in
Right of Way claims in which they are involved. A potential conflict of interest
exists if they engage in the acquisition of improvements or land residues.
2.
No Right of Way personnel may engage in the sale of real estate as a
broker or salesperson.
3.
Any outside fee appraisal work done by a staff appraiser or employee of
the Right of Way Branch who otherwise holds a State certification or license to
perform appraisals will be subject to the following limiting conditions:
a. No employee of the Appraisal Section or employee of the Right of Way Branch
who otherwise holds a State certification or license to perform appraisals will be
permitted
(1) to accept an assignment from any other condemning authority or from any
individual or corporation or other entity that will require his testimony in court. It
should be thoroughly understood between the appraiser and the entity
employing his/her services that he/she will not be required to testify in court by
reason of this appraisal, and a statement to this effect should be incorporated as
a limiting condition in the appraisal.
(2) to accept an assignment that will involve any conflict of interest in any way,
shape, or form. Before accepting an assignment, the appraiser must carefully
check to ascertain that the parcel he/she is to appraise will not be involved in any
highway project at present or in the foreseeable future.
(3) to accept an assignment from any fee appraiser employed by the Department.
b. Appraisals for mortgage loan purposes will generally be permitted, as long as
the assignment meets all of the other requirements set out herein.
c. The volume of outside work done by any branch employee must not be such
that it will interfere with, or impair the efficiency of the employee in the regular
performance of his job with the Department.
d. All outside employment must be done in regular off-duty hours and must not
involve the use of Department vehicles, office equipment or any other stateowned property.
e. No leave of absence may be granted to the appraiser or branch employee for
15
the purpose of outside employment under any circumstances, nor will
accumulated vacation be granted specifically for the purpose of accepting
outside work.
f. In order that the Department may be fully informed as to the extent of the
appraiser’s outside work, each employee must, upon completion of an appraisal,
so advise the State Appraiser, along with the approximate number of hours he
worked on the appraisal.
1.08 DIARY OF DAILY ACTIVITIES
All R/W Agents, Trainees, Aides, and Senior Agents are to maintain a diary of
their daily activities. For this purpose each employee is furnished with a looseleaf binder and prepared filler sheets. The R/W Employees above should
complete the routine items in the printed spaces, as well as provide a brief
summary of their work for the day, such as properties visited and for what
purpose, the names of persons contacted and for what purpose, office activities,
etc, leave time taken.. Should the R/W Employee work on Saturdays, Sundays
or a legal holiday, a diary sheet for that day should be completed. The diary
sheets should be kept in the Division R/W Office for review by Supervisory
personnel. This daily dairy is separate from the negotiating diary completed for
each parcel. Daily diaries should be kept for a minimum of 5 years.
16
Chapter 2 THE RIGHT OF WAY BRANCH
2.01 ORGANIZATION
The Right of Way Branch is located in the Operations Unit of the Division of
Highways of the North Carolina Department of Transportation and is under
the direction of the Right of Way Branch Manager. The chain of command
above the Right of Way Branch Manager, in ascending order, is the Director
of Field Support, the State Highway Administrator, the Secretary of
Transportation.
The Right of Way Branch is composed of the Right of Way Branch Manager’s
office and three units, being the Appraisal unit, the Negotiating Unit, and the
Administrative Unit. The Right of Way branch has approximately 258
permanent employees. An organizational chart for the Right of Way Branch
is shown as FRM2-A. The Right of Way Branch receives legal assistance
and advice from the Department of Justice – Attorney General’s Office –
Transportation Section.
2.02 RIGHT OF WAY BRANCH DUTIES
The Right of Way Branch is responsible for the acquisition and clearance of
needed rights of way for all highway construction and improvement projects on
the State Highway System. The general duties and functions of the Right of Way
Branch are as follows:
1.
To acquire all rights of way for highway Transportation Improvement
Projects (TIP projects) as shown on plans prepared for the Highway
Design Branch and approved for acquisition by the Department of
Transportation and for all other projects, such as traffic, urban, spot safety,
division design/construct, etc., that are approved by the Department.
2.
To acquire all rights of way on Secondary Roads according to priorities
established by the Division Engineers.
3.
To acquire all other lands or interest in lands needed by the Department of
Transportation upon its authorization for such purposes as wetland and
environmental mitigation and permits, material sites, storage areas, haul
roads, etc., and, if requested, to arrange through the Department of
17
Administration for the purchase, or lease, of other lands needed for
highway operational purposes such as shop sites, office sites, etc.
4.
To maintain adequate records of acquired rights of way and their costs,
especially for reimbursements from the Federal Highway Administration.
5.
To arrange for the sale or other disposition of buildings or other
improvements acquired in connection with rights of way to the end that
rights of way are cleared for construction and that the Department
receives a maximum return on its investment.
6.
To arrange for the sale or other disposition of real property such as
buildings, land remnants, or residues acquired in connection with rights of
way, which are determined to be surplus and no longer necessary for
highway use.
7.
To insure that asbestos, hazardous wastes and other contaminants within
the rights of way on highway projects have been identified and
satisfactorily remediated in accordance with state and federal regulations.
8.
To furnish relocation assistance, including financial assistance, to persons
and businesses displaced by right of way acquisitions and to make
payments for moving costs of personal property and other incidental costs
related to the right of way acquisitions.
9.
To arrange for the rental and management of properties acquired in
conjunction with right of way acquisition.
10.
To assist the Utility Section as needed with the relocation of utilities in
conflict with highway construction.
11.
To process encroachment contracts with the owners of encroaching
utilities or structures after investigations and recommendations have been
completed by appropriate engineering personnel.
12.
To administer the Highway Beautification Act to include sign removal,
junkyard screening, and scenic easements, if funded.
2.03 THE RIGHT OF WAY BRANCH MANAGER
The Right of Way Branch Manager is responsible for the implementation of right
of way policies established by the Department and for the administration of all
phases of right of way work, both in the Central Office and in the division and
18
other field offices, and is further responsible for the coordination of work between
the Right of Way Branch and other departments, divisions and units of the
Department. The Right of Way Branch Manager and the Assistant Manager
of the Right of Way Branch are authorized and delegated authority by
Resolution of the North Carolina Department of Transportation, dated October 2,
1969, and subsequent revisions, to do the following:
1.
Execute all documents pertaining to the acquisition of rights of way,
borrow and local material deposits and waste disposal areas.
2.
Execute all contracts pertaining to the removal, relocation, alteration and
sale of buildings and other improvements to be cleared from right of way
and from borrow and waste disposal areas.
3.
Execute all certificates required by Federal Highway Administration for
reimbursement of right of way costs on Federal Aid Highway Projects.
4.
Execute all right of way encroachment agreements and contracts, and
utility relocation and cost reimbursement agreements.
5.
To approve the payment of all settled claims for right of way and relocation
payments up to and including $500,000.00. All payments of settled claims
greater than $500,000.00 but less than 1 million shall require the approval
of the Right of Way Branch Manager or the Assistant Manager of the Right
of Way Branch and Director of Field Support. All payments of settled
claims of 1million or more shall require the approval of the Right of Way
Branch Manager or the Assistant Manager of the Right of Way Branch
and Director of Field Support and the State Highway Administrator and
the Secretary of Transportation.
6.
For Condemnations: To approve the deposits and additional deposits
for condemnations up to and including $1 million. The approval of
deposits and additional deposits for condemnations greater than 1 million
shall require the approval of the Right of Way Branch Manager or the
Assistant Manager of the Right of Way Branch and Director of Field
Support and the State Highway Administrator.
Additional functions of the Manager’s Office include:
To process all personnel and payroll transactions
2.04 DUTIES OF THE APPRAISAL UNIT
19
The Appraisal Unit is responsible for establishing the value of all rights of way
and property interests acquired by the Department and providing estimates of
right of way costs and property damage for the benefit of Project Development
and Environmental Analysis Branch, Programming and TIP Branch, Highway
Design Branch and other Preconstruction units of the Department.
The Appraisal Unit is under the direction of the State Right of Way Appraiser.
The responsibilities of the State Right of Way Appraiser are:
1. Insure the determination of fair market values, through appraisals, for
properties and lands being acquired as rights of way for all highway
projects,
2. Insure the determination of fair market values, through appraisals, for
properties and lands being acquired as rights of way for all highway
projects,
3. Insure that all right of way schedules are met with respect to appraisal
activities,
4. Examine appraisals on claims to be presented to the Right of Way
Review Board,
5. Contract the services of capable, qualified fee appraisers to provide
appraisal valuations for acquisitions, as may be necessary,
6. Provide estimates for future TIP projects; including coordination of
information from the various right of way units and preparation of
requests for right of way cost estimates
7. Insure all appraisals are reviewed for accuracy and compliance with
appraisal standards and state and federal laws and guidelines.
Approve all appraisals in the amount of $750,000 and above.
8. Supervise and train staff appraisers in the valuation and review of
appraisals,
9. Develop remainder and proximity studies.
The work of the Appraisal Unit is administered through five Area Appraisers
Offices staffed in Greenville, Raleigh, Winston-Salem, Charlotte, and Asheville.
The five Area Appraisers in charge of the appraisal field offices direct the
operations of each field office, supervise assignments of appraisals and their
review to staff appraisers, contract with available fee appraisers for fee
assignments involving the appraisal of properties being acquired for highway
purposes within their area of responsibility, and to review, recommend and/or
20
approve all appraisals made in the area. Review appraisers will approve all
appraisals that are under $400,000. Area appraisers may approve all appraisals
between $400,000 and $749,999 and will recommend approval of appraisals
reflecting $750,000 or above to the State Appraiser.
2.05 DUTIES OF THE NEGOTIATION UNIT
The Negotiation Unit is responsible for the negotiation and procurement of rights
of way and other lands needed in the operation of the Department and other
allied duties, appraisals excepted, and is responsible for the administration of the
Department's relocation assistant program and all property management
activities. The Negotiation Unit is under the direction of the State Right of Way
Negotiator, who administers fourteen Division Right of Way Offices through three
Assistant State Negotiators and five Area Negotiators.
The responsibilities of the State Right of Way Negotiator and Assistant
State Negotiators are:
1.
To direct all negotiation and relocation activities involved in the
acquisition of all rights of way and real estate
2.
implementation and administration of the guidelines and regulations of the
Department's relocation assistant program established by the Uniform
Relocation and Real Properties Act of 1970 and its revisions
3.
the relocation of displacees and the clearance of said rights of way to
insure timely project lettings
4.
to insure that all relocation activities which include the services provided to
residential and business relocatees, the payment of moving costs for both
residential and business moves, and the supplemental payments to both
owners and tenants to enable them to purchase or rent appropriate substitute properties comply with the Uniform Act provisions and the Federal
Code of Regulations. The Department's relocation assistant program is
outlined in Chapter 15 of this Manual.
5.
to assist the Real Property Agent in the Administrative Unit with the
Department's asbestos investigation and abatement program, the
inventory and sale of residues, the sale and disposal of acquired buildings
that must be cleared from project rights of way prior to construction, the
sale of surplus properties, and the rentals and management of acquired
properties prior to project clearance and letting. Several of the property
management functions, such as the exchange of residues, the disposal of
surplus properties, contracting of asbestos investigations and abatements,
sale and/or disposal of buildings, are handled by the Division Right of Way
21
Offices of the Negotiating Unit after approval of the contract or activity by
the Real Property Agent in the Raleigh Right of Way Office. The
Department' property management program is outlined in Chapter 14 of
this Manual
6.
Supervises the activities of the Area Negotiators and personnel in each of
the fourteen Right of Way Offices located in the fourteen engineering
divisions
7.
Coordinate the distribution of preliminary and final project right of way
plans and revisions received from the Highway Design Branch to the
respective right of way units and to the respective Register of Deeds
Offices after project lettings.
8.
Process requests for the purchase of specific parcels and advance
acquisitions.
9.
Research old records and projects for existing rights of way, construction
features, relocations records, and property management records
10.
Prepare necessary departmental budgets
11.
Coordinate information from the various right of way units and prepare all
requests for right of way cost estimates
11.
Prepare preliminary and final Board of Transportation resolutions and
agenda items.
12.
Prepare preliminary and final Board of Transportation resolutions and
agenda items.
The duties and responsibilities of the Area Negotiators are:
1.
to see that right of way acquisition schedules are met to facilitate timely
lettings
2.
to assist in the supervision and training of Division Right of Way
personnel
3.
to advise the Division Right of Way personnel on procedural matters and
to assist with the negotiation of difficult acquisitions
4.
to be a liaison between the Division Right of Way Offices and the State
Negotiator, the Real Property Agent, the Relocation Coordinator, the State
Appraiser, the Raleigh Central Office and other DOT branches and units
22
5.
to represent the Right of Way Branch and assist the Attorney General's
Office in the mediation of cases in condemnation
6.
to coordinate, manage and oversee all consultant and Design Build right
of way activities within his/her assigned divisions
The Division Right of Way Agent is the manager of his/her respective Right of
Way Office and through their assigned R/W Agents, Trainees, Aides and
Processing Assistants the Division R/W Agent is responsible for the following:
1. To participate in public hearings, workshops, public meetings, and
planning meetings related to future and current highway projects
2. To participate in on-the-ground plan inspections, filed inspections, and
pre-let meetings and give advice on right of way features that may
adversely affect the design or cost of a project, and to familiarize
personnel with construction aspects of the project
3. To negotiate for and acquire rights of way and other interests and lands
required by the Department for primary highway projects within
established schedules
4. To provide relocation assistance for all eligible residential, business and
miscellaneous displacees affected by the acquisition of rights of way and
to facilitate relocation of displaces from the right of way within established
project schedules
5. To secure rights of way on secondary roads within established schedules
6. To collaborate with the Real Property Agent in sale or disposal of
structures and buildings acquired with the right of way and the disposal or
rental of surplus right of way or residues
7. To collaborate with Utility Unit personnel in the relocation and adjustment
of utilities on primary and secondary roads
8. To procure borrow material, topsoil, or other local material, needed for
highway construction or maintenance and to assist as needed with the
acquisition of wetland mitigation and or stream mitigation areas
9. To assist and collaborate with the Attorney General's Office in the litigation
and mediations of condemnation cases
23
10. To facilitate training, safety awareness, and handle matters for the
Division Right of Way Office
11. To approve and submit correct final reports, relocation payment requests
and monthly status reports to the Raleigh R/W Office
12. To coordinate, manage and oversee all consultant and Design Build right
of way activities within his/her assigned divisions
2.06 DUTIES OF THE ADMINISTRATIVE UNIT
The Administrative Unit is under the direction of the State Right of Way
Administrative Agent who has the following duties and responsibilities:
1. Maintain all records and files pertaining to rights of way acquisitions
2. Coordinate the authorization for funding of projects from Project
Management and the Federal Highway Administration among the right of
way units
3. Checking all agreements, deeds, leases, instruments of conveyance, files
etc., for right of way acquisitions against the project plans for technical
accuracy
4. Process all claims for payment for right of way acquisition transactions
through the department's Fiscal Unit
5. Prepare progress and final vouchers for submittals to the Federal Highway
Administration for reimbursement of federal participation in right of way
costs
6. Research old records and projects for existing rights of way, construction
features, relocations records, and property management records
7. Procure necessary equipment, forms, and supplies, and to maintain an
inventory of it
8. Prepare necessary departmental budgets
9. Prepare preliminary and final Board of Transportation resolutions and
agenda items.
24
2.07 LEGAL- THE ATTORNEY GENERAL’S OFFICE
The staff of the Attorney General's Office assigned to the Department of
Transportation and Division of Highways to handle legal matters relating to
highways is designated as the "Transportation Section". The Transportation
Section of the Attorney General's Office is provided by statute and is headed by a
Special Deputy Attorney General who reports to the Attorney General and who,
as counsel for the Department of Transportation, works directly with the
Secretary of Transportation and the State Highway Administrator and other
officials of the Division of Highways.
The Transportation Section of the Attorney General's Office is divided into two
units -- a Land Condemnation Unit and the Contract, Claims and Administrative
Unit, both headed by Special Deputy Attorney Generals who report to the Senior
Deputy Attorney General. The Land Condemnation Unit is divided into a section
composed of trial lawyers and ancillary staffers located in Transportation Building
at 1 South Wilmington Street in Raleigh with an auxiliary office of the Attorney
General located at 124 College Street, Suite 300, in Asheville, North Carolina.
The Contracts, Claims and Administrative Unit, also located in the Transportation
Building, is responsible for matters involving personnel, highway engineering and
construction and for contracts entered into by the Department. This unit
furnishes legal council to all Department Heads of the Department Of
Transportation in carrying out their duties. All legal services in connection with
the acquisition of right of way are provided by attorneys in the Transportation
Section of the Attorney General’s Office with the exception of title work and
closing of right of way acquisitions which are handled mainly by local fee
attorneys. The attorneys for title work are assigned through the Attorney
General’s Office - Highway Division and, by law, the ultimate authority for
approval of their fee rests in the Attorney General. The fees are reviewed by the
attorney handling the case and by the Senior Deputy Attorney General and
recommendations as to their approval are made to the Attorney General.
25
Chapter 3 AQUISITION
3.01 ACQUISITION, GENERAL REQUIREMENTS
The Constitution of the United States establishes the fundamental precepts for
acquiring private property for public purposes. The Fifth Amendment of the
Constitution provides:
"No person shall … be deprived of life, liberty, or property, without due
process; nor shall private property be taken for public use without just
compensation."
In North Carolina, the statutory provisions pertaining to the acquisition of private
property for public purposes, i.e., rights of way, are included in Chapter 136 of
the North Carolina General Statutes. The highway laws contained in the
publication entitled, Transportation and Highway Laws of North Carolina not only
outline the statutes for right of way acquisition but also outline other statutes that
have a relationship to highway work.
G.S. 136-19 (a). "The Department of Transportation is vested with the power
to acquire in the nature of an appropriate easement or in fee simple such
rights-of-way and title to such lands . . . by purchase, donation or
condemnation . . . "
The "Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970 as amended", Public Law 91-646, was passed by Congress in an
attempt to make public acquisition of private property and relocation of displaced
individuals and businesses as fair and equitable as possible. The Uniform Act
applies to all real property acquisitions for projects where Federal funds are
involved. The Department of Transportation must be familiar with and adhere to
the provisions of this Act, as well as applicable State law, in order to qualify and
receive Federal funding on applicable highway projects. The Uniform Act is
divided into three sections. Title 1, "General Provisions," covers definitions and
important limitations, Title II covers the provisions applicable to Uniform
Relocation Assistance, and Title III pertains to the Uniform Real Property
Acquisition Policy.
The Federal regulations governing public acquisition and relocation activities
have been consolidated into one single Government-wide regulation found in
Title 49, Code of Federal Regulations (CFR) Part 24, "Uniform Relocation
Assistance and Real Property Acquisition For Federal and Federally
26
Assisted Programs." Those further statutes and regulations pertaining to
acquisition issues not covered in the Uniform Act that are applicable only to the
Federal Highway Administration are found in Title 23, CFR
3.02 STATUTORY PROVISIONS APPLICABLE TO RIGHT
OF WAY ACQUISITION
The right of way employee should particularly familiarize himself with the
provisions of the statutes and regulations pertaining to right of way acquisition
hereafter listed. By specifically citing these sections, it is not intended that other
sections of the laws and regulations pertaining to or having a bearing upon right
of way should not be read.
The major State laws and statutes that apply to acquisition:
G.S. 136.18 - Powers and Duties of the Department of Transportation
G.S. 136-19, Acquisition of land and deposits of materials; condemnation
proceedings; federal parkways
G.S. 136, Article 9.Condemnation.103-121.1
G.S. 136-19.3 - Acquisition of buildings (partially outside the right of way)
G.S. 133-5 thru 133-17 - Relocation Assistance
G.S. 136-19.4 - Registration of Right of Way Plans
G.S. 136-19.5 - Utility right of way agreements
G.S. 136-Article 2E, Roadway Corridor Official Map Act.
G.S. 136-55.1 - Notice of Abandonment.
G.S. 136-63 - Change or abandonment of roads.
G.S. 136-Article 4. Neighborhood Roads, Cartways, Church Roads, etc.
G.S. 136-Article 6D -Controlled Access Facilities
G.S. 47-27 - Recording Deeds of Easement
G.S. 65-13 - Removal of Graves.
G.S. 136.18.3 - Location of garbage collection containers by counties and
municipalities.
G.S. 136.18.6 -Cutting down trees.
G.S. 146-22.2 - Appraisal of property to be acquired by State
The major Federal laws and regulations that apply to acquisition:
Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970, Public Law 91-646. Surface Transportation and Uniform Relocation
Assistance Act of 1987 (STURAA)
Title 49, CFR Part 24, "Uniform Relocation Assistance and Real Property
Acquisition For Federal and Federally Assisted Programs.
Title 23, CFR Parts 710, 750 and 751
27
For more detailed information regarding the Federal laws and regulations
governing acquisitions, refer to Right of Way Project Development Guide
issued by the Federal Highway Administration.
3.03 BOARD OF TRANSPORTATION DELEGATION OF
AUTHORITY CONCERNING RIGHT OF WAY ACQUISITIONS
The Board of Transportation has delegated to the State Highway Administrator
certain powers and duties concerning highway right of way acquisitions which
may be sub delegated to the Right of Way Branch:
A. Negotiate and execute documents on the acquisition and release of rights
of way, borrow an local material deposits and waste disposal areas
B. Award and execute contracts as to buildings and improvements to be
cleared from rights of way
C. Execute United States Department of Transportation right of way
certificates.
D. Execute right of way encroachment and utility relocation agreements
E. Negotiate and execute contracts with right of way fee appraisers
F. Negotiate and enter into agreements under the Uniform Relocation
Assistance and Real Property Acquisition Policies Act.
The State Highway Administrator has delegated to the Manager of Right of Way
Branch and Assistant Manager of Right of Way Branch the following powers and
duties:
(1) to negotiate and execute all documents pertaining to the acquisition of
rights of way, borrow and local material deposits and of waste disposal
areas and releases of such interests in borrow and local material deposits
and waste disposal areas when no longer productive or useful for the
purpose acquired: to release interests in land acquired for right of way,
but not used nor needed for right of way.
(2) to award and execute all contracts pertaining to the removal, relocation,
alteration and sale of buildings and other improvements to be cleared from
highway rights of way, borrow and waste disposal areas, such contracts
shall be awarded to the lowest responsible bidder after competitive
28
bidding.
(3) to execute all certificates required in connection with the request to the
U. S. Department of Transportation for reimbursement of right of way
costs on federal-aid highway projects
(4) to execute all right of way encroachment agreements and contracts and
utility relocation and cost reimbursement agreements.
(5) To approve the payment of all settled claims for right of way and relocation
payments up to and including $500,000.00. All payments of settled claims
greater than $500,000.00 but less than 1 million shall require the approval
of the Right of Way Branch Manager or the Assistant Manager of the Right
of Way Branch and Director of Field Support. All payments of settled
claims of 1million or more shall require the approval of the Right of Way
Branch Manager or the Assistant Manager of the Right of Way Branch
and Director of Field Support and the State Highway Administrator and
the Secretary of Transportation.
For Condemnations: To approve the deposits and additional deposits
for condemnations up to and including $1 million. The approval of
deposits and additional deposits for condemnations greater than 1 million
shall require the approval of the Right of Way Branch Manager or the
Assistant Manager of the Right of Way Branch and Director of Field
Support and the State Highway Administrator.
(6) to negotiate and execute contracts with fee appraisers required for right of
way appraisal
(7) to negotiate, enter into agreements and execute documents in accordance
with the provisions of the Uniform Relocation Assistance and Real
Property Acquisition Policies Act and the regulations adopted and
promulgated by the Board of Transportation.
The Manager of Right of Way Branch and Assistant Manager of Right of Way
Branch sub delegate to State Right of Way Appraiser the authority to negotiate
and execute contracts with fee appraisers required for right of way appraisal.
The Manager of Right of Way Branch and Assistant Manager of Right of Way
Branch sub-delegate to Relocation Coordinator and State Administrative Agent
of the Right of Way Branch the authority to negotiate, enter into agreements,
and executed documents in accordance with the provisions of the Uniform
Relocation Assistance and Real Property Acquisition Policies Act and the
regulations adopted and promulgated by the Board of Transportation.
29
3.04 DEPARTMENT OF TRANSPORTATION POLICY FOR
ACQUISITION
In general, the Department’s policy for acquisition of rights of way on primary and
interstate projects mirrors the Federal regulations and requirements established
for Federally funded acquisitions. The acquisition program requirements are
outlined as follows:
•
•
•
•
•
•
•
•
•
•
•
•
Acquire expeditiously by negotiations
Afford owner opportunity to accompany appraiser
Establish Just Compensation amount (through appraisal of property)
Disregard increase or decrease in value caused by project
Provide written statement of and summary of basis for Just Compensation
Owner retains property until paid Fair Market Value or amount deposited
in court
At least 90 days occupancy permitted after acquisition offer made
If continued occupancy as tenant, rent at market rate
Coercion prohibited
Property may be condemned, owner not forced to sue to prove taking
Offer to acquire uneconomic remnants
Fully informed owner may donate right of way
The policy of the Department on the improvement of unpaved secondary roads
requires that the property owners, at no cost to the Department, donate the
necessary rights of way. This policy is based on the premise that the
improvement of the road will enhance the value of the property in an amount at
least equal to the value of the land necessary for the construction of the road
improvement. On this type of project, where no payment is made for land
acquired as right of way, the owner may be reimbursed for the value of
improvements taken, or the cost of moving same, whichever is the lesser
amount.
For secondary roads that are to be added to the State Highway System for
maintenance, the property owner is required to donate, at no cost to the
Department, the necessary right of way free and clear of all improvements,
including utilities.
3.05 INTEREST IN RIGHT OF WAY TO BE ACQUIRED
Generally. the estate or interest in property to be acquired, through negotiations
30
or condemnation, by the Department for rights of way will be fee simple.
Exceptions are as follows:
1. Easements for rights of way from State agencies and some Federal Agencies.
2. Easements for rights of way on secondary road additions and improvements.
3. Temporary construction, temporary drainage, and temporary utility easements
4. Slope easements
5. Detour easements
6. Permanent Drainage Easements, Drainage/Utility Easements, Permanent
Utility Easements, Aerial Utility Easements
7. Easements for most material pits and haul roads that are secured by lease
8. Permanent Easements for contaminated sites
9. Permanent Construction Easements
10. Conservation easements
11. Easements for specified properties and projects.
3.06 ACQUISITION OF AREAS IN EXCESS OF PROJECT
REQUIREMENTS
As a general rule, the acquisition of property in excess of that required for the
necessary right of way, slope, utility easements, and drainage easements
should be limited to those situations where the excess area is considered
uneconomic to the owner because of the project, or where it is in the best
interests of the Department to reach a settlement which includes the acquisition
of the excess area. Excess acquisitions, including economic remnants,
can only be acquired with the consent of the landowner and not by
condemnation and justification for such purchases should be
documented.
3.07 ADVANCED RIGHT OF WAY ACQUISITIONS
Advanced or early acquisitions can be defined as those acquisitions that
are authorized and undertaken on a parcel by parcel basis prior to
receiving right of way authorization for an entire project. These
acquisitions are generally requested before the Right of Way Branch has
received any plan distribution or had any involvement with the project or
the property owners affected by the project.
31
Generally, authorization to acquire right of way on a federally funded
project will be approved after the appropriate environmental assessment
document has been prepared and approved by FHWA. In extraordinary
cases or emergency situations, such as hardship and protective
acquisitions, the Department may request and the FHWA may approve
Federal participation in the acquisition of a particular parcel or a limited
number of particular parcels within the limits of a proposed highway
corridor prior to processing the final environmental document. However,
the hardship or protective buying may be approved only after official
notice has been given to the public that a particular preferred or
recommended location for the project alignment has been selected or
after a public hearing has been held or an opportunity for such hearing
has been afforded. The Department may acquire hardship cases with its
own funds, but if Federal participation is to be used or requested on any
phase of the project, from preliminary engineering to construction,
Federal law and requirements must be complied with. Hardship
acquisition and protective buying procedures do not apply to parks or a
historic property until the 49 U.S.C 1653(f) Section 4(f) determinations
has been completed.
All advanced (early) acquisitions fall into one of two categories:
1. Protective Acquisition: an early acquisition initiated by the Department to
prevent imminent development of a parcel that will be needed for a
proposed transportation corridor or site. When a property within a
proposed corridor or right of way is about to be developed or improved
by its owner in such a manner that the value of the property may
increase significantly, the Department may request authorization from
FHWA for early approval of funds to purchase the property prior to its
improvement. With the consent of the Division Engineer, the Manager of
the Right of Way Branch will request authorization for a protective
acquisition of a property from the Project Management Branch after
considering design and financial impacts and establishing a need for the
early acquisition. After complying with Federal regulations and upon
receipt of authorization from Project Management, negotiations will be
initiated with the property owner and if settlement cannot be effected,
condemnation may be initiated to complete the acquisition.
2. Hardship Acquisition: an early acquisition requested by the property
owner, of the owner’s property, by the Department, to alleviate a
particular hardship condition experienced by the owner due to an
inability to sell or market the property. Hardship acquisition can be
requested by owners who experience a justified hardship based on
32
health, safety or financial reasons if they continued ownership of a
property until the acquisition phase of a proposed project actually was
authorized. The conditions that must be met for a specific property to be
authorized for advance acquisition under hardship procedures are as
follows:
1) The property owner must make a formal written request setting forth
the nature or justification of the hardship based on health, safety or
financial reasons and that remaining in the property poses an undue
hardship compared to others, and the written request must document
his/her inability to sell the property at a reasonable price, within a
reasonable time, as a result of the highway project development
2) Design for the proposed project must be sufficiently complete to
determine that the property is needed for the proposed right of way
and to describe the limits of the proposed acquisition.
3) Funding must be available to compensate the property owner
for the acquisition.
Acceptable hardships will fall under one of the following categories:
1) Health/Safety
a. Advanced age, debilitating illness or injury, or ambulatory or
othermajor disability or handicap of a long-term nature, where
present housing facilities are inadequate or cannot be maintained
by owner.
b. Other extraordinary conditions which pose a significant threat to the
health, safety, and/or welfare of the owner-occupant or a member
of the household for whom the owner is responsible.
2) Financial
a. Litigation (probate) to include copies of estate proceeding
documents verifying the indication situation.
b. Loss of employment as verified by employer or other source.
c. Retirement (cannot afford maintenance) to include amounts
actually spent on maintenance as compared to rent, income, etc.
d. Pending mortgage foreclosure, tax sales, etc., to include copies of
actual documents.
e. Transfer of job as verified by employer.
33
f. Any documented situation similar in impact to those stated above.
Examples of acceptable documentation include:
1) Doctor’s statement clearly and fully describing why the patient
should be relocated from a medical standpoint.
2) Financial statement describing financial difficulties.
3) Letter from employer certifying that the affected owner is to be
transferred to a specific location or that the owner has lost
employment.
4) Court records supporting the hardship situation.
5) Income tax return supporting the hardship situation.
6) Alternative data that supports the hardship situation.
In addition to the health, safety and/or financial hardship, the owner must
also document and support an inability to sell the property for fair market
value within a typical period of time. The price at which the property is
offered for sale must be representative of fair market value. If the property
has been offered at an unrealistic price, then the requirements of the
Federal regulations have not been met. Factors for consideration are:
1) Owner openly marketed the property through a realtor, listing
service or through other means.
2) Owner or realtor conducted a market analysis to determine a
listing price disregarding any increase or decrease in value
caused by the project.
3) The property has been on the market for a length of time typical in
the area and available for inspection by prospective buyers.
4) A realtor’s statement that the property cannot be sold because of
project knowledge.
34
Steps for approving hardship acquisition requests and acquiring subject
properties are as follows:
1. Property owner’s formal written request for hardship acquisition,
including all supporting documentation, should be submitted to the
Division Right of Way Agent. After careful review to insure that
adequate documentation has been provided to support the
owner’s hardship position and request, the Division Right of Way
Agent will forward the request to the State R/W Negotiator for
further action.
2. The State R/W Negotiator will seek information from Roadway
Design as to the proposed design of the project and whether it can
be determined if the owner’s property will be impacted by the
project.
3. The State R/W Negotiator will request the consent of the Division
Engineer for approval of the advance acquisition.
4. The request will then be referred to the Manager of the Right of
Way Branch. After the Manager of Right of Way has verified that
hardship requirements, conditions and FHWA compliance have
been met, receives consent from the Division Engineer, and
determines that a hardship exists, authorization to proceed with the
advanced acquisition will be requested from the Project
Management Branch.
The Project Management Branch will obtain FHWA approval prior to
any acquisition activities. However, before requesting authorization
from Project Management, the Manager of Right of Way may
determine that it is in the best interest of the Department to proceed
with acquisition the following conditions:
a) If an amicable settlement through good-faith negotiations cannot
be reached based on the approved appraised of fair market
value, further negotiations may be terminated and
condemnation, if necessary, may be deferred until the time it
would occur in the normal project schedule
b) the property owner may secure their own appraisal of the
property with the appraiser being selected from the
Department’s list of approved appraisers. That appraisal would
be subsequently reviewed by the Appraisal Section for use in
negotiations. The Department would reimburse the property
owner for the cost of the appraisal.
35
The property owner should be informed if either condition is
present.
5. Upon receipt of authorization approval from the Project
Management Branch, property acquisition can commence. If
authorization is not approved, the property owner shall be advised
that acquisition will be deferred until the normal project is
scheduled in the future.
For authorized advanced acquisitions, all customary acquisition procedures
shall be followed in negotiating a settlement with the property owner.
Condemnation, if necessary, may be initiated on the property to complete
the acquisition, unless the property owner had been previously advised that
negotiations would be terminated if an amicable settlement could not be
reached and condemnation would be deferred to a future time.
A sample letter to a property owner inquiring or requesting an early acquisition is
shown as FRM3-A. This letter may be used as a guide in outlining the
procedures and required information needed for considering an early acquisition.
Occasionally, an advance acquisition parcel is in the process of being acquired
when full r/w authorization is obtained. In this case, the parcel number assigned
will be used throughout the acquisition and condemnation would be used if
necessary to acquire the parcel. However, it may be necessary to revise the
appraisal to reflect the right of way to be acquired (there may be remnants) . If a
total property has already been acquired under advance acquisition, and the
project plans indicate that only a portion is needed for the project, the remainders
should be treated as residues and residue cards/sketches prepared and
submitted to the Real Property Agent in the Raleigh R/W Office.
3.08 DATE OF ACQUISITION
The date of acquisition, also referred to as the date of taking of a parcel of
right of way may be established in one of the following three ways:
1. The date that title passes to the Department by the execution, delivery,
acceptance, and recordation of a Deed or Easement.
2. The date of the filing of a complaint, a declaration of taking, and the
36
deposit of compensation in court.
3. In the event of failure to record a deed or easement or to file
condemnation, a date of taking may be construed as the date on which
the Department enters onto and seizes a property by committing some act
of construction or exercise of dominion. As a rule this latter situation
should occur rarely and only in those instances where the correct property
lines or construction limits were not shown on the plans of the project, or
where the ownership of a property is not correctly determined.
3.09 RIGHT OF WAY AUTHORIZATIONS
Authorization to proceed with right of way acquisition on State and Federally
funded projects will be obtained by the Department’s Project Management
Branch. No acquisition activities or phases of work shall be undertaken prior to
receiving written authorization from Project Management. Project authorizations
will be distributed by the Central Office to all units and offices that will be involved
with acquisition activities on specific projects. Categories of authorizations for
acquisition activities are listed as follows:
1. Preliminary Engineering - This authorization permits right of way
personnel to make preliminary estimates, attend preliminary plan field
inspections, check existing rights of way, verify property lines, prepare
relocation studies, submit suggested plan changes and corrections, and
utilities. Appraisal work may be accomplished under this authorization.
2. Partial Right of Way Authorization - This authorization, usually referred to
as Phase 1, permits right of way personnel to proceed with all prenegotiating activities up to and including the appraising of property.
3. Full Right of Way Authorization - This authorization permits right of way
personnel to perform all right of way activities necessary to complete right
of way acquisition.
3.10 ADHERENCE TO RIGHT OF WAY ACQUISITION
SCHEDULES
Immediately following the receipt of both the final right of way plans and the right
of way authorization, the Division Right of Way Agent, Area Negotiator, and Area
Appraiser will confer and prepare and distribute a schedule (FRM3-B) for the
37
accomplishment of right of way activities. The controlling date in the schedule
will be the date on which the project has been scheduled by the Project
Management Branch for letting to contract. The schedule sets out a time line of
completion dates for the various phases of the acquisition processes to be
accomplished, such as completion of appraisals, completion of negotiations on
utility parcels and improved properties, relocation schedules, etc. In establishing
these project schedules, care must be exercised in establishing acquisition
activity dates that can realistically be met. Every effort by all personnel
associated with acquisition of a project should be exerted to insure completion of
all acquisition activities by the scheduled completion date. If it becomes evident,
or even suspected, that a project schedule cannot be met, or if unforeseen
contingencies arise that would delay a letting, the State Negotiator’s Office
should be notified in writing promptly so that the schedule may be revised or
other arrangements made to complete the project as originally scheduled. The
schedule should be sent to Assistant State Negotiator and the State Negotiator.
3.11 RIGHT OF WAY CERTIFICATIONS
Projects lettings are handled by several units within DOT. For traditional projects
(most TIP projects), before the project can be let to contract, the status of
acquisition must be certified to the Project Management Unit of DOT that right of
way is or will be available. Two months prior to the let date, the Division Right of
Way Agent will submit a Right of Way Field Certification (FRM3-C) to the State
Negotiator’s Office (with copy to Area Negotiator and Assistant State Negotiator)
on each project which is scheduled to be let (the Division R/W Agent may use the
tentative let list). In this certification, the Division Agent will advise whether all
rights of way have been or will be acquired and cleared of displacees prior to the
advertising date for the letting (check box #1). If all rights of way have not been
acquired (condemned, closed, or entry agreement) and cleared of displacees,
the Division Agent will check box #2 and indicate why the rights of way are not
available or cleared and what actions have or can be taken to insure that the
project can be let as scheduled. If the right of way cannot be acquired and
cleared to permit the letting of the project, delaying the project to a later date may
be considered or a delay or entry on that specific parcel may be placed in the
contract.
For Division projects, the Division R/W Agent should provide the r/w certification
to the Division Project Manager or Division Engineer (with copy to Area
Negotiator and Assistant State Negotiator).
On state-funded projects, the State Negotiator’s Office will certify project right of
way and utility status to the Project Management Unit at the one-month review
38
meeting.
On all Federal-Aid projects, including all non-National Highway System (NHS)
Federal-Aid (FA) projects that are exempt from FHWA Oversight (as defined in
the NCDOTFHWA Oversight Agreement, the State Negotiator’s Office will
provide a Right of Way and Utility Certification form (FRM3-D) to the Project
Management Unit indicating the status of acquisition and right of way clearances
for review and approval prior to the advertisement of bids for the project. On all
NHS oversight projects - step-by step (as defined in the NCDOT-FHWA
Oversight Agreement) with FHWA oversight in construction, the Project
Management Unit will provide a Right of Way and Utility Certification form to
FHWA indicating the status of acquisition and right of way clearances. The
Project Management Unit will request the required project certifications
immediately following the one-month review meeting.
The NCDOT-FHWA Oversight Agreement, and accompanying memorandum, is
FRM3-E.
3.12 ACQUISITION REPORTS
The Division R/W Agent will maintain a project status report (also known as a
report B) on the S (groups) drive under the division, tip number for the project.
3.13 REVIEW BOARDS
The Right of Way Review Board and the Secretary of Transportation’s Review
Board have been established to examine and recommend potential high-dollar
settlements and complex claims which pose high risk.
The Right of Way Review Board is composed of the State Highway Administrator
and/or delegate(s), the head of the Attorney General’s Office-Transportation
Section or delegate, the Manager and Assistant Manager of Right of Way, the
State Negotiator, the State Appraiser, the Director of Field Support, the Director
of Pre-Construction and the FHWA Division Realty Officer (ex-officio member).
This Board meets on an as needed basis
The following claims should be presented to the R/W review Board:
2. Complex claims that present high risk
3. Unsettled claims where the proposed settlement is 40% above the approved
39
appraisal of $500,000 or more
4. Unsettled claims where the settlements will exceed 1 million dollars
5. Condemned claims where the expected settlement is 40% above the
approved appraisal of $500,000 or more
6. Condemned claims where the expected settlement is over 1 million dollars
When it is necessary for the Review Board to consider a settlement, the
presenter, usually the Assistant State Negotiator, Area Negotiator, Division R/W
Agent, or AG Attorney, will prepare a summary of the claim details and email
them to the Administrative Assistant for the R/W Branch Manager, who will send
the summary to the members and set up a meeting date, usually at least 1 week
away. The members will review the information prior to the Board meeting The
presenter will attend the Board meeting and explain the claim details.
The summary and presentations should include: the effect of the right of way and
construction on the subject property, the Department’s appraisal position,
appraised values and elements of damages, contentions of the property owners
as to damages to their property, the values and damages reflected in the
property owner’s appraisals, recent court experience in the area of the project
and on similar properties, anticipated attitudes of juries, the anticipated cost of
trial, unusual circumstances or situations that may enhance the property owners’
position in a trial, the risk of receiving an exorbitant verdict from a jury and other
factors which may have a direct bearing on the outcome of the condemnation
case.
After each case is reviewed, a recommendation and/or approval will be made by
the Review Board setting forth an amount that would be justifiable and
appropriate to settle the case on an administrative basis prior to its exposure in a
trial.
The Secretary of Transportation’s Review Board is comprised of the Secretary of
Transportation, the State Highway Administrator, the Manager of Right of Way,
and the head of the Attorney General’s Office-Transportation Section. Upon
referral from the Right of Way Review Board, this board will review and approve
any settlements on claims having a value above one million dollars.
40
Chapter 4
PROCEDURES
PRELIMINARY TO
APPRAISAL
4.01 EARLY PROJECT DEVELOPMENT
All Federal-aid highway projects must meet the requirements of Title 23, United
States Code (U.S.C.) and the Federal Highway Administration must review and
approve selected State actions on Federal-aid projects. This includes actions
related to transportation planning; preliminary engineering; engineering;
environmental evaluations; public hearings; relocation assistance; right of way
acquisition; plans, specifications, and estimates (PS&E); contract awards;
construction; and final inspection.
Through its Transportation Improvement Program (TIP), the Department of
Transportation identifies and programs its needs for highways or road
improvements. Proposed projects which may be subject to Federal-aid funding
are reviewed and approved by the Federal Highway Administration (FHWA) prior
to projects being authorized. Early project development is that stage following
the inception of the project when much of the preliminary planning is
accomplished. An environmental assessment is required on each project by the
National Environmental Policies Act (NEPA). During the planning phase and
NEPA process, the Right of Way Branch will provide right of way estimates and
other studies regarding acquisition costs and relocation impacts. In addition,
Right of Way personnel will be involved in the public meeting and hearing phase
of the project. Public hearings, workshops and other public meetings provide a
forum for citizens to have input in the planning process. Citizens may also be
informed of the project and its potential impacts. The Division Right of Way
Agent shall insure that Right of Way personnel are available at these hearings to
discuss general project impacts, acquisition and relocation procedures, and
regulations. Right of way acquisition is governed by and must be in compliance
with the provisions of the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 as amended, Public Law 91-646, and
subsequent revisions.
Frequently, in the early development of plans, the Division Right of Way Office
will be called upon to furnish a right of way abstract for the length of the entire
project. In many cases it will be acceptable to furnish a point-to-point abstract
covering numerous parcels in those instances where the existing right of way is
the same. Existing R/W Abstracts are discussed in detail in Section 4.03 below.
41
4.02 FIELD PLAN INSPECTION
The Highway Design Branch distributes copies of the preliminary right of way
plans to all necessary Units including the Right of Way Branch for the purpose of
holding an "on-the-ground inspection" of the plans and the project. The purpose
of this preliminary inspection is to thoroughly review the plans with all Units
involved, to insure that the plans agree with conditions found on the project,
and to recommend any changes in grade, alignment, drainage, access,
driveways, utilities, existing right of way limits, or right of way that may be
appropriate to improve the design of the project.
4
1
On all projects the Field Inspection procedure is as follows:
Prior to the Field Inspection meeting, the Division Right of Way Agent will set up
a meeting with the R/W Agents assigned to the project, the Area Appraiser,
representatives from the Utility Section, and the Area Negotiator to review the
project plans in the field and discuss all matters affecting right of way acquisition,
coordination of the various acquisition activities and clearance of the right of way
to insure a timely letting of that project.
On those projects where service road studies may be involved and have not
been secured, it is imperative that the Area Appraiser initiate a Service Road
Study Report promptly by the Appraisal Unit to estimate damages to isolated
remaining properties and the costs of rights of way for providing service roads to
isolated properties so the Design Unit can determine if the construction of service
roads are economically feasible and should be incorporated into the project
plans.
In certain instances, changes in grade or alignment may affect access to existing
business properties and may cause damages in excess of grading costs
involved. Minor changes in the grade or alignment can sometimes be made that
will save in the overall cost of the project or will result in good will on the part of
the Department toward the property owner without sacrificing good design. The
time to make such changes is during or as soon as possible after the Field Plan
Inspection and before the plans are completed. This will save time in the
preparation of plans and will eliminate delays to contractors in making changes
after construction of the project is under way. Remember that it takes time and it
cost money to make revisions during the acquisition phase, so it is very important
that this Field Plan Inspection be given careful study and consideration.
Two sets of preliminary plans will be sent to the Division Right of Way Agent to
be used in showing any recommended changes or corrections resulting from the
42
Preliminary Field Inspection.
On the day of the meeting, the Division R/W Agent and other selected r/w
personnel will attend the meeting and state their recommendations. There are
typically many people at this meeting, and many revisions are discussed by all.
The Division R/W Agent must be ready to consider and discuss potential
revisions brought up by other units. He/she must quickly consider the r/w effects
of such revisions and state the potential impacts to the r/w of such changes.
Due to the importance of acquiring parcels needed for utility relocation early in
the schedule, it is critical that both the Utility Unit is represented at the Field
Meeting, and the utility parcels have been identified. The Division R/W Agent
should notify the Assistant State Negotiator if either of these do not occur.
Following the meeting, the Division Construction Engineer typically prepares a
memo to the Design Engineer documenting the requested revisions. The
Divisions across the state may prefer various ways of documenting r/w
revisions/suggestions. The preferred method is for the Division R/W Agent to
submit a written list to the Division Construction Engineer for incorporation with
his/her memo. Alternately, the Division R/W Agent may send his/her proposed
revisions to the Assistant State Negotiator, who will review and forward them to
the design Unit. A third possible way is for the Design Engineer to note the
revisions during the meeting.
4.03 CONFIRMATION OF EXISTING RIGHTS OF WAY
On all projects, the existing right of way widths along the entire project must be
confirmed. This is one of the most important steps in the right of way phase. If
the existing right of way is incorrect, then the Department is not accurately
compensating the affected property owners.
For many years the statues of this state permitted the Department of
Transportation to enter onto private property for the purpose of constructing
roads without payment of compensation or even without notice to the property
owner, leaving it to the property owner to file an action for the recovery of
damages in the event that the owner considered the property damaged. The
statue further provided that in the event the property owner did not initiate an
action for the recovery of damages within a specified time after completion of the
project, the owner was then barred from recovery.
Therefore, the Department seldom made attempts to secure written right of way
agreements. Even after the Department began securing signed agreements, it
43
recorded few of them until the 1960’s In addition, in the 1940’s the Department,
then the State Highway Commission, took over many roads from the Counties,
with any documentation as to the existing right of way width of those roads..
The existing right of way width should be the width that the Department can
prove, if put in a position of having to defend its claim in court. The Division Right
of Way Agent should fully document the existing right of way on each property
along the project.
The Right of Way Agents should search the following for evidence of the existing
right of way:
1. recorded deeds and plats
2. recorded and unrecorded r/w agreements
3. old highway plans
4. intersecting and adjoining project files and plans
5. maintenance limits including ditches, back slopes or any area that has
been mowed or otherwise maintained
6. other on the ground evidences such as property irons or corners and r/w
monuments
7. files in the Raleigh R/W office
8. files in the Division Office, including encroachment agreements and
driveway permits
The State Negotiators Office will furnish to the Division Agents, upon their
request, any evidence it can locate as to these right of way widths. This typically
consists of r/w agreements, or copies of the plans of earlier projects. The
Division Right of Way Agent will be expected to check the Division file as some
agreements may have been misfiled in the Raleigh Office that can be found in
the Division. Furthermore, in some instances, agreements may have been
secured by the Division which were not transmitted to the Raleigh R/W Office. A
search should be made for any old agreements, forms, or any petitions signed by
property owners requesting that road improvements be made which may have
been secured by Division personnel but were not forwarded to the Central Office.
A check should be made of other projects intersecting the project in question as
sight distance areas may have been secured by agreement on these other
intersecting roads.
44
After a thorough search, the Agent should complete FRM4-A (Existing Right of
Way Abstract) for each parcel. The Agent will provide this form to the Division
R/W Agent for approval. Again, it is imperative that the Agent and the Division
R/W Agent confirm the existing right of way before making any appraisal request
or right of way claim reports. The existing right of way should be the greatest
width that the Department can prove, if called upon in court. It will never be less
than the width the Department has been maintaining or otherwise exercising
dominion over.
Correct existing right of way widths should be shown on the plans when they are
issued for right of way acquisition. If this is not the case, the Division R/W Agent
should provide correct abstract information to the Locating Engineer, and then
submit revisions through the Assistant State Negotiator.
4.04 DESIGNATION OF PARCEL NUMBERS
Each parcel where right of way is to be acquired will be given a number by the
Design Branch. The numbering of parcels will begin at the beginning of the
project with 001 and will be carried through continuously to the end of the project.
Approved Advance acquisitions will retain the parcel number previously
assigned.
Please note that while the plans may indicate a 1 or 3 digit parcel number,
the right of way branch will use an expanded parcel numbering system on
all of its forms, instruments and computer systems shown as follows:
TIP Projects
B-3702 002
RS2475 001
R-2539B 086
R-2247EA 803
R-2100A 210B
R-2101AB 047Z
Secondary Roads & Division Projects
005SR1182 005 (the 005 is the county code, 005 here is Ashe County)
044SR1509 002
033NC008 005
005=County, SR 1182 is the road, 005 is the parcel
Moving Ahead Projects
MA06030R 001
45
MA=Moving Ahead, 06=Division, 030=County, R or B=Roadway or bridge
If a parcel is eliminated, that parcel should not be used again. Generally the
controlling factor in the numbering of right of way parcels is the ownership of the
property; however, there are other factors that enter into the identity of the
various parcels of land, these being reflected by the highest and best use, and
unity of use of the property. Frequently, a number of contiguous lots owned by
one party may be shown under one parcel number.
If, in the study of these properties, the Agent finds that these lots do not have a
unity of use and commonalty of ownership, then the Agent should break down
the master parcel into separate parcels according to its use in order that separate
values might be assigned to each. If the Agent determines that two or more
smaller parcels or lots can be combined to form one unit consistent with the
highest and best use and ownership, then only one number should be assigned
to the unit. If it is discovered that a large rural tract was purchased in several
parcels, this does not necessarily mean that more than one parcel number
should be given to the tract. Again the question of unity of use should be taken
into consideration in determining whether any of the separate tracts enclosed
within the overall tract should be given separate parcel numbers or whether the
entire tract should be treated as one parcel. The Area Appraiser should be
consulted when determining whether lot/tracts under the same ownership
should be combined or separated for appraisal purposes.
If it is determined to divide a parcel or combine two or more parcels, then the
original number should remain intact and not be used again without modification.
For example, if it should become necessary to divide Parcel R-2633B 002 into
three parcels, the number 2 would remain as the designation of one of the
parcels and the other two parcels should be numbered R-2633B 002A and R2633B 002B. Likewise, if it should become necessary to combine Parcels R2633B 003 and R-2633B 004, then number R-2633B 004 should be eliminated
showing both properties combined as being number 003. The number that is
discarded should not be used again in numbering another parcel. When plans
are revised due to second takings from properties where original claim has been
closed, the designation "Z" will immediately follow the original parcel number.
(For example: Parcel R-2633B 056Z. Second takings will be discussed later in
this chapter.
4.05 DISTRIBUTION & REVIEW OF PLANS
Once the Design Unit has made the revisions obtained from the Field Inspection
meeting, paper plans will be distributed to the Right of Way Branch. Seven sets
are sent to the Division Right of Way Agent, six sets to the Area Appraiser, and
46
one set is retained by the Checking Section of the Administrative Unit. It will be
the responsibility of the Division Right of Way Agent to request any additional
sets of plans of this type as may be needed through the Raleigh Right of Way
Office. Copies of the transmittal memo will be given to the R/W Cadd Unit, who
will begin the work of creating cadd generated descriptions and diagrams for
each parcel. Also at this time, the State Negotiator’s office will request that the
Location & Surveys Unit stake the right of way. In some instances the Division
R/W Agent can arrange for minor staking through the Division Engineer. It may
be beneficial for the Division R/W Agent to discuss the staking schedule with the
Locating Engineer for his/her division. It may be necessary to establish priority
parcels for staking.
Following receipt of the plans and authorization,
1. The Area Negotiator, the Division Agent, the Project Agent, and the Area
Appraiser will meet to discuss the project schedule, the parcels requiring
title opinions, the parcels where a claim report may be used, and any
other factors which may influence the acquisition. In addition, they will
create a priority list for the parcels with highest priority parcels being
those needed for utility purposes and those where houses, businesses, or
other improvements are within the proposed r/w.
2. The Division R/W Agent should make a list of all parcels shown on the
plans with the corresponding owner’s names. This list should be sent to
the State Administrative Agent so that the Parcels may be added to
entered into the Department’s fiscal system known as “SAP”. This must
be done so that prompt payments can be made on that parcel (such as
payments for appraisals, titles and closings, and payments to property
owners).
3. The project files on the s drive (and if applicable on the division’s shares
drive) should be set up in accordance with file naming guidelines set out
by the Right of Way Branch.
4. a paper file folder should be prepared for each individual parcel. On the
identification tab of the folder should appear the TIP/Parcel number, wbs,
county, and owner’s name. Folders should be carried with the Agent on
all contacts made with the property owner. Appropriate forms may be
added to each folder. The folder may be recycled or reused upon
completion of the acquisition, provided all necessary documents are saved
on the S (groups) drive. The paper folders should be kept in the Division
R/W Office until the claim is closed or if condemned, the judgment is
recorded, and all necessary info is placed on the s (groups) drive. The
original recorded instruments should be kept indefinitely.
5. a report b will be made and saved as Gencor-report b TIP # on the s drive
under the project tip number (Example: Gencor-Report B R-2633B)
47
4.06 STATEMENTS OF NEGOTIATOR
Upon assignment of a project and prior to any contact with property owners
regarding acquisition, the Project Agent will sign the portion of the FRM4-C, that
states the following:
The undersigned hereby acknowledge that he/she has no direct or indirect,
past, present, or contemplated future personal interest in the parcel or in
any benefit from the acquisition of such property.
When negotiations are successful, the successful Agent will sign the
portion of the FRM4-C that states:
The undersigned hereby acknowledges that the written instruments
secured by the undersigned on the above parcel embodies all the
considerations agreed upon between the negotiator and the property
owner; and the instruments were obtained without coercion, promises other
than those shown in the instruments, or threats of any kind whatsoever by
either party.
This procedure is also discussed in Chapter 12.
4.07 VERIFICATION OF AREAS AND PREPARATION OF
CADD INFORMATION
The agent will then take the cadd diagrams and descriptions for each parcel and
compare them to the project plans. Any discrepancies should be resolved with
the R/W Cadd unit. On large projects, it may take some time to receive the cadd
descriptions and diagram and it may be helpful to provide a priority list to the R/W
Cadd Unit. The highest priority parcels will be any parcels needed for utility
relocations and parcels where structures are within the right of way. If the cadd
information is not yet available the agent should proceed to the next step below.
4.08 FIELD INSPECTION & EXAMINATION OF EACH INDIVIDUAL
PARCEL
Prior to the first contact with the property owner, the Agent should study each
48
parcel on the plans, taking note of the existing and proposed design and
conditions. The Project Agents should note determine the type of pavement,
whether or not curb and gutter or storm drainage is provided, the slope ratio for
cuts and fills, existing and proposed access and other pertinent information as to
the construction of the project so that they will be in a position to clearly explain
the plans to property owners and other interested parties. It is often helpful to
the agent to use colored pencils to distinguish certain items on the plans such as
existing and proposed r/w, easements, property lines, structures, etc. The agent
should also make an on-the-ground inspection of each individual parcel to
become familiar with the property. On this inspection the Agent should make
record observations as to the physical evidences of existing right of way and
should check property corners and property lines. The Agent is to note any
peculiar features of terrain that might be affected by the project, look for
evidence of public utilities such as water, sewer, gas mains, and other utilities
which may be above ground such as power or telephone lines, and note any
residences, businesses and other structures where relocatees may be involved.
If the property owner is on site, and approaches the Agent, the agent may either
proceed with the initial contact with the property owner as outlined below, or
he/she may set an appointment to come back and make the initial contact at a
more appropriate time.
4.09 NOTICE OF ABANDONMENT
The design of a project may require the tie-in and relocation of intersecting
streets and Y-lines with the main survey line of the project at different or at new
locations. These changes may render some streets and roads along with their
rights of ways useless beyond the project construction limits. In these cases,
street or road rights of way may no longer be needed and can be removed from
the State Maintenance System. The act of removing a road from the State
Maintenance System is called abandonment. Abandonment from the System
does not necessarily mean that title to the underlying land reverts to the previous
landowners. The underlying land may have been a public street and would
remain a public street or public assess after abandonment. The Department only
has the authority to remove or abandon a street or road from the State
Maintenance System. Section 136-55.1 of the General Statues specifies the
procedure for abandonment that is outlined as follows:
(a)
At least 60 days prior to any action by the Department of Transportation
abandoning a segment of road and removing the same from the State
highway system for maintenance, except roads abandoned on request of
the county commissioners under G.S. 136-63, the Department of
Transportation shall notify by registered mail or personal delivery all
owners of property adjoining the section of road to be abandoned whose
whereabouts can be ascertained by due diligence. Said notice shall
49
describe the section of road which is proposed to be abandoned and shall
give the date, place, and time of the Department of Transportation
meeting at which the action abandoning said section of road is to be
taken.
(b)
In keeping with its overall zoning scheme and long-range plans regarding
the extraterritorial jurisdiction area, a municipality may keep open and
assume responsibility for maintenance of a road within one mile of its
corporate limits once it is abandoned from the State highway system.
G.S. 136-55.1, applies only to those abandonments on projects on which plans
are approved by the Department of Transportation for letting to contract.
Projects would principally apply to roads on the primary highway system, those
numbered highways with a US or NC prefix, with some intersecting secondary
system roads which would carry an SR designation.
When rights of ways on a project are shown on the plans to be abandoned,
the Agent will notify affected owners in writing by registered mail or hand
delivery, the date of the Department of Transportation meeting at which
time the abandonment of the section of road will be considered. The
meeting will follow the opening of bids for construction of the subject project, also
known as the letting date of the project. The Agent is to secure from the Raleigh
Office the date of the Department of Transportation meeting prior to writing the
letter to the owners. The Agent should attach a cutout of the plans to the owners’
letter to identify the section of road to be abandoned. The actual abandonment
of right of way on a project that is let to contract actually occurs when the project
is completed and accepted by the Department.
Abandonment of rights of way from the secondary highway system would be
subject to Section 136-63 of the General Statutes. The Right of Way Agent
should be careful to explain that the right of way will remain intact until action is
requested by owners through the County Commissioners, and/or Municipality, to
complete the abandonment. This notification should contain a statement to the
effect that if the property owners plan to attend the Department of Transportation
meeting that they notify the Right of Way Agent some three weeks prior to said
meeting. The Right of Way Agent, in turn, will then notify the Raleigh Office.
4.10 RIGHT OF WAY CLAIMS OF $25,000 OR LESS
An experienced Agent can complete a Right of Way Claim Report (FRM4-N), on
a parcel if the value of the areas is determined to be $25,000 or less and there
are no damages to the remaining property. This procedure will comply with the
waiver of appraisal procedure outlined in 49CFR Part 24 Subpart B, Section
50
24.102 of the Code of Federal Regulations. As stated above, the Area Appraiser
will assist with determining which parcels are likely to be candidates for the R/W
Claim Report.
Agent may prepare a Right of Way Claim Report, FRM4-N, that shall be
reviewed and approved by a supervisor.
On claims where the valuation is $10,000 or less, the Agent who prepares the
FRM4-N may negotiate the claim directly with the property owner.
On those claims exceeding the $10,000 threshold, up to a maximum of $25,000,
the FRM4-N must be prepared by an Agent other than the Agent who will be
negotiating the claim to eliminate possibility of any conflict of interest. The Agent
negotiating the claim shall offer the property owner the option of having an
appraisal prepared on the property and if the property owner elects to have an
appraisal make, then, one must be prepared. If the property owner elects to
negotiate on the basis of a FRM4-N , the negotiating Agent shall proceed
accordingly. A notation that the property owner was advised that he/she/they
had the option to have an appraisal made on the property, and then waived this
option, shall be entered on the ND1, FRM4-C.
The Agent should make every effort to settle claims using FRM4-N on the offer
contact. Settlement by administrative adjustment on all claims, whether the offer
is based on a FRM4-N or an appraisal, will be made in accordance with
provisions in Chapter 10 of this Manual. If a settlement based on a FRM4-N
cannot be reached, the Agent will request an appraisal on that claim from the
Appraisal Unit in accordance with Chapter 5 of this Manual. For informational
purposes, a copy of the FRM4-N will be placed in the parcel requests folder on
the s (groups) drive. .
4.11 NEGOTIATING DIARY
The agents will maintain accurate, written records of all contacts with the owner,
including those which involve relocation assistance. The agent should record,
on a parcel-by-parcel basis, all contacts immediately after each contact with a
property owner, including telephone calls, email and written correspondence:
the date, place and method of contact; persons present, if applicable; offers
made, counter-offers, reasons settlement not be reached; remarks by owners,
remarks by agents, and any other pertinent data FRM4-C, FRM4-D, AND FRM4E have been established for maintaining the Negotiating Diary. These forms
should be maintained in the final report folder on the s (groups) drive. FRM4-C ,
is to be completed after the initial contact and there are some questions that will
51
have to be answered as acquisition process moves forward. FRM4-D is to be
completed on the first negotiating contact when the offer is made. On
subsequent negotiating contacts, the Agent should use FRM4-E FRM4-Fmay be
used when space has run out on those particular diary forms. Each date of
contact you have a signature or electronic signature by it.
On those claims involving relocatees, FRM15-M (Relocation Diary) shall be
maintained on each relocatee.
4.12 INITIAL CONTACT WITH PROPERTY OWNERS
The preliminary or first contact with the property owner can be the most important
part of the negotiation process. The success or failure of subsequent
negotiations may depend on how well the Agent has laid the groundwork in this
initial visit. The Agent on this first visit should maintain a calm demeanor, be
prepared to answer questions, and be courteous in an effort to establish rapport
with the owner. If the agent cannot answer a question posed by the owner,
he/she should not guess, but seek out answers from appropriate Department
personnel and relay those answers back to the owner.
A. An Explanation of the Necessity for the Project and Its Nature
The Right of Way Agent should carefully explain to the property owner the
necessity for the project and how it fits into the overall highway system. The
Agent should call attention to the continuing increase in vehicular
transportation on the highway system. By the study of the community, the
Agent may be able to point out specific advantages to the property by making
it more accessible to school, church, or market areas. The property owner
may be unfamiliar with rights of way that involve control of access, therefore,
the Agent should explain to the owner why it is necessary to impose access
control and what the advantages are in developing this type of highway.
B. An Explanation Of How the Property Will Be Affected
On the plans and on the ground, the Right of Way Agent will carefully point
out to the property owners the features of the project as they affect the
owner’s property and will provide copies of the plans sheets to the property
owners, including the cross sections. The Agent is cautioned to consult the
cross sections in explaining grade changes and not rely solely on the center
line profile. What may appear to be a two foot cut on the highway centerline
may be a 10 foot fill between the shoulder break point and the slope stake
line. The Agent should point out any changes in grade and related affects to
access to the remaining property. The Agent will also, to the best of his
52
ability, explain the effects of the project on a water supply, septic system,
drainage, any benefits or adverse effects that the project might have on the
use of the property. Any buildings, trees, shrubbery, fences or any other
improvements that might be located within the right of way should be pointed
out to the property owner. The Agent should explain the effects of the project
in complete frankness and not attempt to hide or gloss over any undesirable
features of the project. It is more desirable to discuss these matters fully prior
to the time the appraisal is made rather than after the offer of compensation
has been made.
C. Advising The Owner Of The Acquisition Procedure
The Agent will carefully point out to the property owner just how the
Department of Transportation will proceed with the acquisition of their
property. The Agent should stress that the Department intends to see that
each property owner receives just compensation for all damages sustained
from the construction of the project. The Agent should explain that the
Department secures an appraisal, or evaluation if a Right of Way Claim
Report is appropriate, on every parcel and that the owner is offered the full
amount of the approved appraisal rather than for the Department to attempt
to purchase the property in an amount less than or higher than the
appraised damages. The Agent should also point out to the property
owner, that in a few instances, it may be impossible to reach an agreement
for the acquisition due to an honest difference of opinion between the
Department of Transportation and the property owner; therefore, it would
be necessary for the Department to acquire the property through the power
of eminent domain or condemnation. This should be done in such a
manner that the property owner does not gain the impression that
condemnation is a threat to hasten settlement. In no instance should the
Agent suggest to the owner that they sign an agreement in order to save
attorney fees, court cost, etc., or trade on his reluctance to undergo an
experience in court. If a dwelling, business, or other personal property is
located with the proposed right of way for the project, the Agent shall
explain the Relocation Assistance program and the eligibility to receive
relocation benefits to the owner.
On the initial contact, the Agent will present the property owner with a
Legal Rights Brochure FRM4-G, Title VI Brochures FRM4-GG, and a
Right of Way Flow chart FRM4-GGG. These items explain the legal
rights of the owner and provide an overview of the acquisition process.
These materials should be included, if the agent must conduct the
initial contact by mail. Follow-up telephone calls to out-of-town and
out-of-state owners to further explain the project and answer questions
are encouraged.
D. If relocatees are involved in the claim, the Agent will conduct a
53
relocation initial contact and explain Relocation Assistance Program as
outlined in Chapter 15.
E.. Solicitation of Owner’s Cooperation with Appraisers
If an appraisal is needed, the Agent should inform the property owner that it is
his/her right to accompany the appraiser on the inspection of their property.
And encourage the owner to take the time meet the appraiser and to point out
to the appraiser all elements that they think may cause damage to their
property as a result of the project. The Agent should also suggest to the
property owner that they call to the attention of the appraiser any sales of
property in the area they are aware of that may be comparable to their
property. The Agent should advise the owners that an appraiser will contact
them at a later date for an inspection of their property.
F. Donations of Right of Way
Donations of rights of way or easements on projects are permitted by
Department of Transportation and FHWA regulations and are encouraged
where practical. Donations of all or any part of a claimant’s property needed
because of a project may be accepted by the Right of Way Branch provided
the owner has been fully informed of his legal rights to receive "just
compensation" for such property. These rights are as follows:
(1) an opportunity to accompany the appraiser who will appraise their
property;
(2) receive a written statement or summary of the offer representing just
compensation as established by the acquiring agency;
(3) 90-days notice to vacate if displacees are involved.
The environmental document for the project should be completed and a
record of decision reached by FHWA prior to acceptance of donated rights of
way. On Federal Aid projects, an appraisal or valuation of the property
being donated will be secured in order for the Department to receive
credit from FHWA towards the prorated share of the project costs being
borne by the Department. In addition, any environmental concerns, such as
underground contamination, should be investigated and mitigated prior to
acceptance of donated right of way or easements.
Donations should be solicited on the initial contact. When accepting a
donation of right of way from a willing property owner, the Agent will advise
the owner of the following:
54
"The property owner is entitled to have an appraisal made on his/her
property to determine just compensation and by donating, the owner
releases the Department from this obligation and waives any
compensation in exchange for the donation of property as right of way in
full settlement of his/her claim"
This advice should be indicated by answering Yes to both questions on No.
14 of the FRM4-C. If there is no donation, these blanks will be filled in with
N/A.
From time to time, the Department may encounter public-private projects
involving private parties and/or landowners who have entered into an
agreement with the Department to donate rights of way in exchange for
construction or other concessions. On these type projects, the Division
Agents should review the parcels involved and satisfactorily determine or
verify the ownership of the rights of way being donated to the Department
prior to acceptance of the donation. If a substantial donation is involved, a
title abstract or preliminary certificate of title would be advisable to ascertain
the ownership of the property. If there is not sufficient time to secure a
certificate of title, the Division Agent should insure that a title search is made
at the courthouse to verify ownership and the existence of any encumbrances
against the property. Another item to be considered prior to the acceptance
of a donation is the existence or possibility of underground tanks or
hazardous materials being within the donated right of way. An investigation
of any suspected environmental hazardous conditions may prevent the
Department from unsuspectingly acquiring unnecessary liabilities along with
the right of way.
G. Preparation of FRM4-H
FRM4-H is a history of the property that is completed by obtaining information
from the owner and from public records. This form should be completed and
placed in the parcel requests folder on the s (groups) drive. This information
is obtained through direct conversation with the owner and the Agent should
point out to the owner that this information is necessary in the event a
Certificate of Title on the property is required. The Agent is responsible for
verifying or obtaining correct recordation and other information regarding the
owner’s record title from public records. The Agent should be very careful in
obtaining the recordation data, book and page number, since a wrong reference can very easily confuse the abstracting attorney or the appraiser.
NOTE: All blanks on FRM4-H are to be filled in. If inappropriate information is
requested, fill in blank with N/A. See Chapter 6 for further information
regarding Title Investigations.
H. Partial Taking of Buildings and or Structures
55
It is quite common on projects, for the r/w or easement line to pass partially
through a structure, leaving part of the structure outside of the land areas to
be acquired. In these situations, the Department must determine if the entire
structure should acquired or if the structure should be cut off at the r/w or
easement line. The General Statutes of North Carolina permit the acquisition
of that portion of a building or structure lying outside the right of way, upon a
based on an affidavit of an independent real estate appraiser (see Chapter 5
of this Manual) that the partial taking of the structure will substantially destroy
the economic value or utility of the structure. Other considerations are that an
economy in the expenditure of public funds will be promoted as a result; or
that it is not feasible to cut off a portion of the building without destroying the
entire building; or that the convenience, safety, or improvement of the
highway will be promoted as a result.
Note that nothing in the statute gives the Department of Transportation the
authority to condemn the underlying fee of the portion of any building or
structure which lies outside the right of way of an existing or proposed street
or highway. In conjunction with the request for appraisal, the Agent will also
submit a copy of the plan sheet showing that a building or structure is being
partially acquired and request a partial take determination and affidavit from
the Area Appraiser. The Agent will verify the accuracy of the location of the
right of way and/or easement line as it affects the building or structure on the
plans and will submit a corrected sketch of the building or structure only if
shown incorrectly on the plans. The Agent will, send FRM4-I and FRM4-J
and a scanned copy of the affidavit to the State Negotiator listing those
improvements, for which appraisals and affidavits have been received
indicating that the economic value of the improvement is being destroyed by
the partial acquisition. The FRM4-I and FRM4-J will be forwarded to the
State Negotiator by the date indicated on the Right of Way Schedule, or if the
date is not indicated, on the scheduled, immediately after the last approved
appraisal on improvements has been received. The Board of Transportation
in formal session must approve the total acquisition of a building or structure
before it can be condemned.
The FRM4-I, FRM4-J and the scanned affidavit should be placed into the
parcel final report folder on the s (groups) drive .
I. Questions on FRM13-A
The purpose of FRM13-A is to supply information to the Attorney General’s
Office in the event that it is necessary to file condemnation. Some of the
information called for in this form can best be obtained from the property
owner during the initial contact. Other information on this form will have to be
acquired from other sources, such as the Preliminary Certificate of Title, at a
later date. See also Section 13.02 of this Manual.
56
J. Inventory of Equipment
When there is a business displace, the Department must determine which
items are considered realty and are appraised, and which items are
personalty and are moved by the owner.
During the initial contact, the Agent will make an inventory of the equipment
located in each business being acquired. The purpose of this inventory to
determine the ownership of the equipment and fixtures from the property
owner, tenants, lessees or other indicated owners of the equipment and to,
ultimately, determine if any equipment identified as a trade fixture is realty or
personalty. Upon completion of the inventory, the Agent will complete an
Inventory of Equipment form, FRM4-K, for each individual owner of
equipment and include it with the Appraisal Request on each parcel. Copies
of any leases (oral, written, recorded, or unrecorded) should be submitted
with the Appraisal Request. The final responsibility of the determining if the
trade fixture items are realty or personalty is assigned to the Area Appraiser.
The Area Appraiser will examine each FRM4-K and with the assistance of the
Attorney General’s Office, will mark each item as either Personalty or Realty.
The Area Appraiser will advise the appraisers assigned to the parcel of this
determination. At the time the Agent makes the offer on a parcel involving
trade fixtures or equipment, the Agent will include in the offer letter a list of
equipment which has been considered realty, so the owner will have no
misunderstanding as to what items are considered realty. Those items
considered as personalty may be eligible for relocation benefits.
K. Land Area Data for Farms
In order to make a thorough appraisal on farm land or acreage tracts, the
appraiser must know how much of the farm land is allocated in allotments by
the Federal Government, such as tobacco, peanuts cotton, etc. The
appraiser must also know how much of these acreage tracts is cleared and
how much is wooded. On these properties, it will be necessary for the Project
Agent to obtain this information on the initial contact with the property owner
and also by going to the Farm Services Agency Office (formerly the ASCS
Office) in the respective county to secure verification of any FSA allotments.
The Land Area Data sheet, FRM4-L, has been developed for this purpose.
The Land Area Data sheet is to be completed by the Agent, on all such
properties and included with the Appraisal Request. A copy of this form is to
be retained in the Division claim file. The Agent should get the property
owner or their representative to sign the form to authorize the FSA Office to
release information concerning allotments and acreages involved. The FSA
official should also sign the form after the information has been obtained.
57
In many cases the Agent will encounter properties containing large acreages
which have no farm record in the FSA Office. The Agent should submit the
Land Area Data sheet on these properties and break down the cleared and
wooded land for the appraiser. In completing the land area breakdown for
appraisal purposes, the Agent will show net areas and will not include any
existing right of way. In this instance, the Agent will not complete the top
portion of the form. The Agent should place the words "NO FARM RECORD"
at the top and complete the land area breakdown section for appraisal
purposes at the bottom of the form and sign the form. This form will not be
necessary for house and lot tracts or other properties not involving large
acreages and crop allotments.
L. Federal Taxpayer Identification Form
A Taxpayer Identification Number Form is required when any payment is
made by the Department of Transportation. FRM4-M should be completed
and signed by whomever the Department warrant (check) is to be made
payable. The payee will be the property owners who sign the instruments
unless a different payee is specified in the executed instruments. While there
may be only one payee per check (husband and wife are considered one
payee), there may be multiple checks printed per parcel.
The most common situation is to have one check paid to the owners.
However, if there are multiple owners, such as heirs, it will be necessary to
spell out in the instrument how the funds are to be paid, and a FRM4-M will
be signed by each payee. There are other situations where it will be
preferred to make the settlement amount payable to the closing attorney.
This is true where deeds of trust, taxes or judgments must be paid, where
there are out of state owners, or heirs. In these cases a payment clause must
be in the instrument and the FRM4-M is signed by the closing attorney.
Care must be taken that the FRM4-M matches exactly the heading/signature
of the instruments and the payee listed in FRM12-A (unless there is a
payment clause in the instruments or in certain cases such as trusts.
The form requires the name and address of the owner or payees, the federal
tax id or social security number, the designation of the payee and the
signature of the payee. Some sections of the form are noted as optional.
FRM4-M may be obtained on the initial contact. When a final report is
process the payee’s taxpayer id number is entered in the Department’s Fiscal
Section. The Department will issue a 1099 to all payees. Where checks are
paid to Closing Attorneys, the Closing attorney may subsequently issue
1099’s to the payees.
58
4.13 DIVISION DESIGN, SPOT SAFETY, AND STATE-FUNDED
The procedures addressed in this section will apply to acquisition of rights of
way for Division Design and Construct (DDC) projects, Division Design and
Let (DDL) projects, Spot Safety projects from Traffic Engineering, and StateFunded projects. Most likely, these projects will be entirely State-Funded with
no Federal Funds being used on any stage of the project.
The requester, the party responsible for developing the project, may be the
Division Engineer, Division Design Engineer, District Engineer, the Traffic
Engineering and Safety Systems Branch or one of their regional offices,
private engineering firms, or other consulting firms.
A requester will provide the Division Right of Way Agent with a rough design
of a proposed improvement project with sufficient detail for verification of
existing rights of way and for estimation of costs of rights of way, if required.
The rough design should also indicate any utility involvement in the project.
The Division Right of Way Agent will abstract the existing right of way for the
project and provide the requesting party with an estimate of the cost of any
right of way and/or easements that will need to be acquired in conjunction
with the proposed project. The Division is responsible for obtaining utility
relocation estimates.
The requester will be responsible for setting up funding with the Project
Management Branch for any anticipated or proposed right of way acquisition
on a project. It is suggested that a token amount of funding for right of way
costs be included in the funding approved by the Board of Transportation for
the project. The requester will notify the Division Right of Way Agent of the
Board’s approval of funding.
At the same time that the requester submits funding requests to the Project
Management Branch, he will provide the Division Right of Way Agent with
copies of the requests for funding. The Division Right of Way Agent will, in
turn, submit these requests to the State Negotiator’s Office for the purpose of
requesting approval from the Board of Transportation for acquisition of rights
of way through negotiation and/or condemnation. Where possible, obtaining
authorization for funding and approval for acquisition at the same Board
meeting will help to expedite acquisition and project construction. Upon
receiving acquisition approval, the Division Right of Way Agent will schedule
project acquisition activities and begin work. Prior to Board of Transportation
approval of funding, the requester will provide the Division Right of Way
Agent with completed plans for the project. These plans must contain
59
sufficient detail so metes and bounds descriptions of rights of way and/or
easement areas can be generated for right of way agreements and/or deeds
used in their acquisition. CADD generated plans would be preferred for
projects requiring right of way acquisition. Utilities located within the existing
and/or proposed rights of way that will be impacted by construction of the
project should be identified, as well as other features such as buildings and
improvements, signs, septic systems, etc.
The Division Right of Way Agent shall review all projects with the requesters,
as may be necessary, to determine if public hearings or meetings, or plans
inspections, may be required; to determine if project plans need to be
recorded; when plans corrections are necessary; when condemnation is
anticipated on parcel(s); when unanticipated situations, such as relocation or
complicated utility involvement, changes the scope of the project: etc.
The Division Right of Way Agent is responsible for coordinating all acquisition
activities and procedures on each project as outlined in the Right of Way
Manual. Right of Way Claim Reports (ROWCRs) shall be used to the fullest
extent possible. Acquisition of rights of way may be in fee simple or by
permanent easement as the project may dictate. When preparing deeds or
easement agreements, the provision regarding the recordation of project
plans (register of deeds office, on file in Raleigh or plans attached) must be
addressed
The Division Offices (not right of way) will handle utility conflicts directly with
the utility owners/providers and coordinate these conflicts and relocations
The Division Right of Way Agent, or his designee, will provide regular status
reports regarding project and acquisition activities to the requester and to the
Raleigh R/W Office. These projects should also be reported on the Monthly
Primary Report and Report B.
4.14 APPRAISAL REQUESTS
Upon completion of the initial contact, the Agent should prepare an Appraisal
Request/ Summary Sheet, FRM4-B, and place it along with other supporting
documents such as FRM4-H, plan revisions, Land Area Data Sheet, deeds to
the parcel, tax card/printout, cadd diagram, total property sketch, letters to the
owner, septic permits, etc. in the parcel requests folder on the s (groups) drive.
The Division R/W Agent will then check the documents for accuracy and notify
the Area Appraiser that the request is available.
The Agent should state all areas in acres to 3 decimal places. All improvements
60
on the property, (those within the r/w, left of the r/w, and right of the r/w should be
listed on the FRM4-H
4.15 APPRAISAL REQUEST REVISIONS/CORRECTIONS
Occasionally it will be necessary to revise an appraisal request. Revisions
are due to a variety of factors such as:
1. changes made by the owner such as an owner selling or purchasing
property after the initial contact or appraisal is made
2. r/w or easement revisions
3. new information that comes to light
4. errors discovered in the original FRM4-B
An incorrect Summary Sheet will cause a delay in the appraisal procedure
and accordingly, a loss of valuable negotiating time to the Agent. Every effort
should be made to submit accurate and complete appraisal requests.
In the event an error is discovered in the Appraisal Summary Sheet, the Area
Appraiser should contact the Division R/W Agent, and discuss the discrepancy.
The Division R/W Agent will make any needed revisions and resubmit the
appraisal request. Every effort should be made by the Division R/W Agent and
the Area Appraiser to resolve any errors quickly and efficiently
When returning a Summary Sheet that has been corrected, it should state
"revised" on the FRM4-B. The Agent should make the revision as soon as
possible so there will be no delay in securing the appraisal or appraisals on the
property.
The Appraisal Summary Sheet (FRM4-B) has four columns for "area left of right
of way", "area in right of way", "area right of right of way", and "total". Under
Land Areas, the Agent should show gross area for each item. Under Land Area
in existing highway rights of way, the Agent should show areas in existing
highway rights of way for each item. Under Appraise Net Areas, the Agent will
shown the net areas to be appraised. Under "Area in Right of Way", the Agent
should show only existing right of way that would be involved within the
necessary construction areas shown on the plans and show same as Existing
Highway Rights of Way under Area in Right of Way.
61
Multiple properties with an obvious continuity of use under the same ownership
will be included on one FRM4-B and appraised accordingly. Where the Area
Appraiser has a doubt as to the continuity of use on multiple parcels of this
nature, separate appraisals will be made on the parcels. Contact with the
Attorney General’s and the Raleigh R/W Office may be appropriate in
determining whether parcels should be combined or separated.
4.16 Insignificant & Minor Changes to Appraisals (Red-Line
Approach)
There may be instances where plan changes are received after appraisals have
been approved and received by the negotiator.
If these plan changes result in insignificant or minor area changes and do not
increase or decrease the value per acre of the remainders or change proximity
damages, the Division Right of Way Agent (or higher level right of way unit
supervisor) or Right of Way Project Manager, if a consultant project, may adjust
the amount of the approved appraisal in the following manor:
The Division Agent should discuss the parcels in question and obtain verbal
concurrence from the Area Appraiser before employing this approach. In the
same way, the Right of Way Project Manager for Consultant or Design Build
Projects should discuss with the Review Appraiser the contemplated changes,
and obtain concurrence prior to using this approach.
When considering whether to use this approach, the Division Right of Way
Agent, Right of Way Project Manager, Area Appraiser, and Review Appraiser,
are cautioned to consider the cumulative effects of multiple changes to an
appraisal.
For a Narrative Appraisal or Value Finding, copy the frm5-H or frm5-k from the
appraisal and on the copy, in red, line-through any incorrect areas and insert the
correct areas; then line through the incorrect after value(s) and difference and
insert the corrected after value(s) and difference. The frm5-H or frm5-k should
be signed and dated. A note should be included on the frm5-H or frm5-k that
the original appraiser was notified of the change and provided a copy of the
adjustment. It may be necessary to adjust other pages of the appraisal to
thoroughly show the changes, especially if the amount of damage to remainder
was adjusted. If the allocation of damages to remainder changes, frm5-S should
be also be adjusted and included.
The adjusted frm5-H or frm5-k and any other revised pages should be made
part of the final report [scanned and placed into the final report folder on the S or
62
groups drive] so that the checking section will have access to it, and it should be
emailed to the Area Appraiser so he/she may be aware of the change. The Area
Appraiser should also place it on the S or groups drive in the Appraisal
project/parcel folder.
The revised forms should be named frm5-k2, frm5-H2, and frm5-S2. A second
revision is named frm5-K3, and so on.
These adjusted values become the new approved appraisal amount. If the
previous amount was offered to the claimant, a revised offer should be made with
the new approved appraisal amount.
If condemnation is necessary, the adjusted amount will be the amount deposited.
However, the Area Appraiser should take the area changes into account if an
updated or court appraisal is made by their office. For acquisition by consultants,
the adjusted appraisal should be included with the final report. For both
traditional and consultant acquisitions, the Area Appraiser/Right of Way Project
Manager should provide original appraiser with a copy of the adjustment, either
by email attachment or hard copy.
If an administrative adjustment/condemnation review is needed, the agent should
provide both the original appraisal information and the adjusted appraisal
information in the appraisal section, showing the adjusted value, with the date
adjusted, and the Division R/W Agent/Project Manager in the Name of Appraiser
column, their working title in the staff/fee column, and the word “adjustment” in
the Type column.
4.17 SECOND ACQUISITIONS
In some instances, additional r/w or easements are needed from parcels where
the Department has previously acquired r/w or easements on the same project.
Numerous factors could cause situations of this nature, such as errors in
original planning, increased widths necessary for proper construction, delay of
construction of a project after right of way has been purchased, or change of
design standards which might necessitate the acquisition of additional widths.
On claims where a negotiated settlement has been reached and the claim is
closed, the Agent will treat the second acquisition as a new claim. The original
parcel number with the letter Z added will designate the second taking. For
example R-2633B 008 would be R-2633B 008z. (The plans will show 008z). In
the event a third acquisition , it would be indicated by the same numerical
number followed by the letter Y.
The right of way line or boundary established for the original acquisition will serve
as the property line for use in computing the total area of the parcel and the area
63
remaining. The Agent will repeat the acquisition process as indicated in this
Manual. Many second acquisitions are minor in nature and the Agent may use a
Right of Way Claim report if appropriate.
The Agent should ask the property owner on the initial contact if they have
purchased any adjacent land, or if they have sold any land since the original
acquisition and inquire and observe if any improvements which may have been
added or deleted on the parcel since the time of the original acquisition. If the
original acquisition severed a parcel or tract of land and the new acquisition
affects the property on both sides of the project, there will be two claims. Claims
on which condemnation has been filed and final judgments have been rendered
will be handled in the same manner as outlined for claims on which settlement
has been made and the claim is closed.
On those claims where condemnation has been filed and judgment has not been
rendered, the Agent immediately inform the Trial Attorney of the changes. In
most cases, there will not be a second acquisition, but merely a revision of the
original claim.
If the condemnee has conveyed the remaining area, this would be considered a
physical change and would constitute a new claim, new owner and a new parcel
number. In unusual situations, the Area Negotiator, Assistant State negotiator, or
State Negotiator should be consulted.
64
Chapter 5 APPRAISAL
5.01
THE UNIFORM ACT AND THE GENERAL
STATUTES OF NORTH CAROLINA
The Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 and the General Statutes of North Carolina
have jurisdiction over and are the source documents for the
appraisal requirements set forth in the NCDOT Real Estate
Appraisal Standards and Legal Principles.
The Financial Institution Reform, Recovery and Enforcement Act of
1989 (FIRREA) establishes appraisal requirements as set forth in
the Uniform Standards of Professional Appraisal Practice,
(USPAP). FIRREA has jurisdiction involving any real estate related
financial transaction, which involves a federal financial institution’s
regulatory agency and which require the services of an appraiser.
Many people have mistakenly assumed that the term "federally
related transaction" includes NCDOT appraisal work. It does
NOT.
Appraisal requirements under USPAP are consistent with, but not
identical to the requirements set forth in the NCDOT Uniform
Appraisal Standards and Legal Principles. Both documents subscribe
to the same basic appraisal fundamentals and have a common goal
of a quality appraisal product. However, there are real and perceived
differences in the NCDOT requirements and USPAP.
USPAP has a provision in its preamble called the Jurisdictional
Exception Rule that recognizes the pre-eminence of law and public
policy over specific provisions of USPAP. This provision allows state
certified and licensed appraisers to accomplish appraisals for the
NCDOT in accordance with the NCDOT Real Estate Appraisal
Standards and Legal Principles and not be in jeopardy of being in
violation of USPAP.
5.02
PURPOSE OF THE APPRAISAL
The North Carolina Department of Transportation is required by law
to reimburse each landowner from whom property is acquired for
highway purposes to the extent of the loss, if any, between the fair
market value of the entire property immediately before the taking
and the fair market value of the remaining property immediately after
65
the taking. It is the duty of the appraiser to estimate market value to
the best of his or her ability in accordance with applicable North
Carolina Law and generally accepted appraisal techniques.
Appraisals are used to support the Department’s request for
reimbursement of right of way costs from the Federal Highway
Administration and as a basis for negotiations with the property
owner.
5.03
CONFIDENTIALITY OF APPRAISALS
Appraisals are a confidential communication between the appraiser and
Department of Transportation, Trial Attorneys, or Federal Highway
Administration. In no instance shall the appraiser divulge the amount of the
appraisal or the breakdown of the appraisal to any person other than the
authorized employees of the Department of Transportation or the Federal
Highway Administration, without written permission from same, except on
proper order of the court or for court testimony. The appraiser is not subject to
defend such reports to anyone except Department of Transportation Review
Appraisers or in a court of law.
5.04
CONDUCT OF THE APPRAISER
The Right of Way Agent is normally the first representative of the Department of
Transportation to contact the property owner with the appraiser making contact
shortly thereafter. Under certain circumstances, the Area Appraiser may direct
the appraiser to make the first contact, or to accompany the Right of Way Agent
on the first contact. The impression made by the first representatives of the
Department of Transportation may well dictate the success or failure of
subsequent negotiations with the property owner.
5.05
CONTACT WITH PROPERTY OWNERS
It is a requirement of the Department of Transportation that the appraiser
contact the property owner personally unless relieved of this responsibility by
the Area Appraiser. The appraiser must be courteous, considerate, and patient
with the owner, making every effort to gain his confidence and respect. The
appraiser must convey that he or she is competent, well qualified, and fully
capable of making a fair and impartial appraisal. During the appraiser’s
inspection of the property, the owner should be given an opportunity to point
out to the appraiser any features of his property or its use that, in his opinion,
would have a bearing on its value. The appraiser should make no attempt to
answer any questions concerning negotiating procedures or questions of a
technical nature; furthermore, he or she will answer no questions pertaining to
the value of any property. If the appraisal process must be discussed, then the
appraiser must be extremely careful to make no reference to any dollar
66
amounts. Even the use of hypothetical or theoretical examples may be
misinterpreted. The appraiser must never discuss the value of any parcels
assigned to him with anyone but Review Appraisers for the Department of
Transportation or Federal Highway Administration personnel. Under no
circumstances shall the appraiser ask the owner for his opinion of value of all or
any portion of his property or his opinion of the damages to his property
resulting from the highway taking.
5.06
ABSENTEE PROPERTY OWNERS
The Appraiser is personally responsible for contacting any absentee owners, or
their representatives, and for making arrangements for the inspection of the
property. Specific information concerning this will be given to the appraiser
when he receives the assignment from the Area Appraiser.
5.07
INTERPRETATION OF PLANS
The appraiser is cautioned against interpretation of plans for the property
owner. This is primarily a function of the Right of Way Agent. Persistent
questioning should be brought to the attention of the agent through the Area
Appraiser. The appraiser should not give the impression that he or she does
not know or is not able to answer; the appraiser must simply indicate,
diplomatically, that it is the policy of the Department for the Right of Way Agent
to answer such questions. This is not a reflection on the appraiser’s ability to
interpret plans. The fact that no two people ever explain something in the same
way must be kept in mind. This often causes property owners to think they are
getting two different stories. This feeling may cause mistrust and a breakdown
in negotiations. The appraiser is responsible for interpreting or having the Area
Appraiser interpret the plans to the extent that the proposed construction may
affect the value of the remainder. In the event the appraiser has difficulties
interpreting plans or any other items supplied by the Department of
Transportation, he or she shall direct any inquiries only to the Area Appraiser.
5.08
CONFLICT OF INTERESTS
Under no circumstances is any appraiser to be assigned to appraise any parcel
in which he or she may hold, or subsequently acquire, any interest. In addition,
the appraiser shall not be assigned any parcel wherein the valuation might be
influenced by his or her personal interest in other property. The Area Appraiser
will usually have no way of knowing whether or not a conflict of interest exists. It
shall be the ethical responsibility of the individual appraiser to refuse any
assignments where such a conflict occurs. In questionable or borderline cases,
it shall be the responsibility of the appraiser to advise the Area Appraiser of all
the facts in order that a decision may be made as to whether or not it would be
proper for the appraiser to accept the assignment.
67
General Statute 136-13 reads:
(A) It shall be unlawful for any person, firm, or corporation to, directly, or
indirectly, corruptly give, offer, or promise anything of value to any
member of the Department of Transportation, or any officer or employee
of the Department of Transportation, or to promise any member of the
Department of Transportation or any officer or employee of the
Department of Transportation to give anything of value to any other
person with intent: (1) to influence any official act of any member of the
Department of Transportation; or (2) to influence such member of the
Department or any officer or employee of the Department to commit or
aid in committing or collude in or allow any fraud on the Department or
the State of North Carolina; or (3) to induce a member of the Department
or any officer or employee of the Department to do or omit to do any act
in violation of his lawful duty.
(B) It shall be unlawful for any member of the Department of Transportation
or officer or employee of the Department directly or indirectly, to
corruptly ask, demand, exact, solicit, accept, receive, or agree to receive
anything of value for himself or any other person or entity in return for:
1. being influenced in his performance of any official act; or
2. being influenced to commit or aid in committing, or to collude in, or
allow any fraud, or to make opportunity for the commission of any
fraud on the Department of Transportation or the State of
NorthCarolina; or
3. being induced to do or omit to do any act in violation of his official
duty.
(C) The violation of any of the provisions of this Section shall be cause for
forfeiture of public office and shall be a felony punishable by a fine of not
more than twenty thousand dollars ($20,000), or three times the
monetary equivalent of the thing of value, whichever is greater, or
imprisonment of not more than ten (10) years, or by both such fine and
imprisonment.
5.09
QUALIFICATIONS OF FEE APPRAISERS
Fee Appraisers employed by the Department of Transportation are
professional appraisers, selected on the basis of recognized
experience in the type of property to be appraised. Some of the
foremost requirements for use of an appraiser are integrity,
character, and reputation. The appraiser must be clean and neat in
appearance, physically fit, and have a pleasing personality.
Assuming that the appraiser possesses all of the above attributes,
he or she then must have the proper background of education,
training and ability to carry out any specific assignments given.
There are no educational limitations for fee appraisers. Education
68
and experience will vary with the individual (s) and the type of
property to be appraised. The limitations and qualification of
individual appraisers must be considered very carefully by the Area
Appraiser when making assignments. Every Fee Appraiser must
furnish the Department of Transportation with a resume of his or her
qualifications, using the Experience Questionnaire for Fee
Appraisers, FRM5-A.
5.10
EXPERIENCE QUESTIONNAIRE
Fee Appraisers employed by the Department of Transportation shall be in
compliance with the North Carolina Real Estate Appraisal Act - State Statute
93-A, Article 5, Real Estate Appraisers. Fee Appraisers are selected on the
basis of recognized experience in the type of property to be appraised. The
Appraiser must have the proper background of education, training, and ability to
carry out specific assignments given. The limitations and qualifications of
individual appraisers must be considered very carefully by the Area Appraiser
when making assignments. Every Fee Appraiser shall prepare an Experience
Questionnaire for Fee Appraiser, FRM5-A. This form is prepared and
submitted electronically to the appropriate Area Appraiser, who will then
forward to the State Appraiser with the necessary recommendation. The
Appraiser’s work is evaluated for characteristics such as punctuality, court
preparation, and quality of work, documentation, attitude, knowledge, skill and
dependability. The experience questionnaires shall be updated periodically.
However, evidence of current State Certification shall be submitted to the
Department annually.
5.11
APPRAISAL FEE PROPOSAL
The number of appraisers who can do appraisal work in accordance
with the Department of Transportation’s requirements within a
reasonable period of time is very limited. Therefore, the Area
Appraiser must solicit appraisal services from only those who are
qualified to perform the assignment. The Department of
Transportation contracts for appraisal services in a manner that
provides maximum open and free competition. Typically, appraisal
services are solicited from more than one source. The Fee
Appraiser shall submit an appraisal fee proposal to the Area
Appraiser on FRM-B, provided for that purpose. This form will be
prepared by the Area Appraiser and submitted electronically to the
appraiser. The form will contain the assigned parcel numbers,
owner, the appraisal premise and minimum requirements. The
appraiser must view the properties and enter a fee proposal for each
parcel and return to the Area Appraiser, electronically. Discussion
with the Area Appraiser as to the appraisal premise or work required
is necessary, in fact, encouraged. However, no communication or
69
negotiation as to fees shall be permitted until the appraiser’s
proposal is received by the Area Appraiser. This form is used in the
fee bidding process, or negotiation.
5.12
THE APPRAISAL CONTRACT
After the Area Appraiser has reviewed the Appraisal Fee Proposal, FRM5-B, he
will either accept/reject same. Once the appraiser is selected, an Appraisal
Contract, FRM5-C, will be prepared. The appraiser’s acknowledgment binds
him or her to all provisions set out in the contract. It is necessary that the
appraiser read the contract and the guides referred to therein. Particular note
must be given to paragraph 13 of the contract. The contract is to be properly
signed by both the specified Appraiser and the Area Appraiser, electronically,
before being transmitted to the State Appraiser on FRM5-D.
5.13
CONTRACT EXTENSIONS
In the event the appraiser realizes that he or she will not be able to complete
the assignment on time, he or she shall apply in writing, either by letter or
email, to the Area Appraiser for an extension of time early enough for the Area
Appraiser to consider the request and reply before the contract termination
date. The appraiser’s request for an extension must include his reasons for the
request as well as a new due date for the contract. The Area Appraiser will
consider the request and reply in writing whether an extension is to be granted
or not. Copies of both documents are to be stored along with the contract,
thereby becoming a part of the contract. This procedure also applies to any
interim completion dates with the contract for complex or unusual assignments.
Failure to comply with these terms will cancel the contract as provided therein.
In the event the appraiser is delayed by an action of the Department, such as a
change in plans, the Area Appraiser should grant in writing a reasonable
extension of time in which to complete the contract.
5.14
FLEXIBILITY OF REQUIREMENTS
The requirements for rendering appraisals are flexible to the extent that certain
portions may be omitted when found to be inapplicable for the parcel being
appraised, provided the appraiser secures prior concurrence from the Area
Appraiser and includes a logical explanation, that conforms to USPAP, for
such omissions in the appraisal report. The appraiser shall exercise common
sense and sound judgment in the application of these requirements to the end
that the appraisal report will properly fit the property being appraised.
5.15
STATEMENTS FOR APPRAISAL SERVICES
70
All Statements for appraisal services rendered, pretrial conferences, appraisal
conferences, or appearances in court shall be submitted to the Area Appraiser
on the Statement of Appraisal Services, FRM5-E, electronically. Statements for
services rendered shall contain the following information: the Appraiser’s name
and telephone number, to whom the check is to be made payable, a statement
giving the specific type of appraisal made or service rendered, the date the
statement is submitted, the identification and project numbers, county, names
of property owners, parcel numbers, date of the appraisal contract, individual
fee for each parcel or itemized hourly charge, total amount of the statement,
certification that the statement is correct and that no part thereof has been
previously paid, the appraiser’s electronic signature and his Vendor number.
The appraisal reports are reviewed for obvious errors before the statement for
services is presented for payment. If errors are found, the report and the
statement are returned to the appraiser for correction immediately. In most
cases it is not advisable to hold the statement until the final review of the
appraisal. Assuming that the report appears correct, the statement should then
be checked for mathematical accuracy and conformance with the contract, after
which it is sent to the State Appraiser with the recommendation of the Area
Appraiser that it be paid. The statement is sent electronically along with a
Statement Transmittal, FRM5-F. In most cases, a Direct Deposit for these
services will be made into the Vendor’s account of choice, or payment will be
made by check. Statements for pretrial conferences and court testimony are
also sent to the Area Appraiser in those cases where the fee appraiser is under
contract. In this situation, the statements are to be checked for mathematical
accuracy and conformance with the contract, and forwarded to the Trial
Attorney handling that particular case for further processing. When witnesses
are hired by the Trial or Associate Attorney, and are not covered by contract,
the statements will be handled entirely by the attorneys.
Occasionally Fee Appraisers will send in a second statement for services if they
do not receive prompt payment of the first statements. This practice should be
discouraged because it may result in double payment for services. In order to
minimize this possibility, the first statement should be handled promptly, but if it
appears that the first statement may have been lost or misplaced, then any
further statement should be clearly identified as a duplicate and will be
accompanied by an explanation of the necessity for the duplicate statement.
5.16
GENERAL VALUATION INFORMATION
It is presumed that the appraiser is familiar with the accepted principles of real
estate valuation and the appraisal process. The NCDOT Real Estate Appraisal
Standards and Legal Principles is not intended to educate the appraiser.
Appraisal premises and technical data are furnished the appraiser for
assistance in making appraisals for the Department of Transportation. Except
where otherwise stipulated by the Area Appraiser, the Income Capitalization
Approach to value must be used in appraising investment type properties. The
Sales Comparison Approach is required in appraising all types of property,
except in those areas where competitive sales are virtually nonexistent. In
71
such cases, the Cost Approach must be applied. The Cost Approach will
generally be applied in appraising special purpose properties. The Area
Appraiser will provide the appraisal premise in unusual situations at the time of
the assignment.
5.17
SUPERFLUOUS ENTRIES
The Department of Transportation is interested only in a clear, concise word
picture of the subject property, together with the facts and reasons which
develop the appraiser’s conclusion of value. Flowery or repetitious phrases
and excess wording simply add bulk to the appraisal report and should be
omitted. The appraisal report should be typed, single spaced, neat and legible,
and transmitted electronically.
5.18
APPRAISAL COPIES
Generally, one (1) copy of each appraisal report will be submitted electronically
to the Area Appraiser for review and further handling. The appraisal must be of
good quality and completely legible. It is a requirement that the Appraisal
Summary Sheet and the Certificate of Appraiser both be signed by the
appraiser electronically.
5.19
DATA COLLECTION
The appraiser should consider all pertinent sales and properties offered for sale
in his/ her investigation of the market. However, for reasons of brevity and
conciseness, the appraiser should refer to or include in the report only those
which are considered to be most comparable to the property being appraised.
An appraisal report with three or four good comparables which have been
carefully analyzed and related to the subject property is much better than a
report with a dozen or more comparables which are difficult to relate to the
subject property or require inordinate adjustments. Regardless of which value
approach the appraiser relies upon, three comparables are considered
minimum for each value approach developed (before and after). If current
listings of comparable properties are used, these must be in addition to the
minimum three sales. It should also be remembered that listings generally
indicate the upper limit of Market Value and should be considered accordingly.
5.20
BASIC DATA REPORT
A basic data report may be prepared, with the concurrence of the Area
Appraiser. The basic data report must contain the details and analyses of
comparable sales, offerings, and retails. During the analysis of these sales, the
appraiser may justify any time adjustment, local reproduction cost, deterioration
72
and obsolescence, and any other economic factors pertaining to the
assignment. The appraiser may wish to include such items as city and
neighborhood data, limiting condition, etc. It is imperative that the appraiser
bear in mind that the basic data report is a part of the appraisal report and its
contents pertaining to analyses of data are confidential.
A sales location map shall be included in the basic data report. All information
concerning a comparable sale is required in each individual report or in a basic
data report and shall be briefly referred to in the report itself in addition to the
inclusion of the sales form in the Addenda.
Identified photographs and sketches of each comparable as set out in are
required in the body of or addendum to each copy of the appraisal report or in a
basic data report.
A specific reference to the contract date must appear on the cover of the basic
data report. A basic data report prepared as part of an appraisal assignment is
not to be considered or paid for as a separate item. It shall be a method of
presenting data which has been gathered and analyzed as part of the whole
assignment.
5.20
DESCRIPTION AND ANALYSIS OF COMPARABLES
The appraisal report or basic data report shall contain an adequate narrative
description of comparable sales and/or rentals, or the report shall include the
Comparable Sales Form, FRM5-G, for each sale or rental as mutually agreed
with the Area Appraiser. Information about each sale shall include but not be
limited to the following:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Date
Deed Book and Page
Stamps
County
Grantor
Grantee
Location
Sales Price
Confirmed by (Name)
Financing
Condition of Sale and Reason
Present Use
Zoning
Highest and Best Use
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
Size
Shape
Topography
Existing R/W in Total Area
Area Cleared and Area Wooded
Soil Type
Drainage
Available Utilities
Access
Frontage
Improvements
Unit Price
Tax Identification
Other Pertinent Information
Additional information for rental comparables should also include:
29.
Lessor
33.
73
Vacancy and Collection Data
30.
31.
32.
Lessee
Rentable Area
Rent
34.
35.
Expenses
Term
An analysis of each sale shall show the degree of comparability between the
sale and subject by explaining the difference(s) between them, together with
appropriate individual adjustments for the difference(s) either in dollars or
percentages. A summary of the appraiser’s analysis is to be exhibited in chart
form. The chart shall be accompanied by a narrative explanation of the
analysis and justification for any and all adjustments.
5.21
CONFIRMATION OF COMPARABLES
All comparables shall be confirmed by the Grantor, Grantee, Lessor, Lessee or
the Agent handling the transaction. These confirmations as well as any
additional pertinent information should be included within the report or Value
opinion. Care must be exercised when verifying comparables to assure that the
actual total amount paid for the property is shown, not a figure which may
represent a net amount received by the seller after brokerage or other fees
have been deducted. It is believed by many experts in the field that very few, if
any, transactions in real estate meet the accepted legal definitions of Fair
Market Value, and for this reason, conditions surrounding each comparable
must be determined and considered carefully. Any deviation from these
requirements shall be made only with the approval of the Area Appraiser and
explained in the report. Financing terms shall be reported. The effect of
financing shall be discussed if such had an influence on the comparable price.
It is preferable that all comparables be confirmed by the buyer, seller or lessor,
lessee. Motivation, financing, and conditions of the comparables are generally
more reliable when the appraiser has discussed the transactions with the
grantor, grantee, or lessor, lessee. Comparables giving entities such as
corporations as grantor, grantee, lessor or lessee shall be investigated by the
appraiser to assure that the principals are completely separate.
5.22
THE NARRATIVE REPORT FORMAT
This NCDOT Real Estate Appraisal Standards and Legal Principles as well as
The Uniform Standards of Professional Appraisal Practice pertain primarily to
the narrative report. When making the assignment, the Area Appraiser controls
the extent to which the requirements outlined in the NCDOT Real Estate
Appraisal Standards and Legal Principles will be employed as they relate to the
specific appraisal problem. The Preamble page is the first page of the
Appraisal Report following the Appraisal Summary Sheet. The large volume of
appraisal reports handled by the Department of Transportation requires that the
narrative appraisal report follow the sequence outlined by the NCDOT Real
Estate Appraisal Standards and Legal Principles beginning with Item FRM5-H,
The Appraisal Summary Sheet and concluding with FRM5-J, the Certificate of
74
Appraiser.
5.23
APPRAISAL SUMMARY SHEET
For most clients, the appraiser will submit the appraisal along with a transmittal
letter. The Appraisal Summary Sheet, FRM5-H, serves as the transmittal letter
for appraisals submitted to the Department of Transportation. Therefore, the
appraiser’s seal/stamp shall accompany his/her signature on the Appraisal
Summary Sheet. The seal/stamp shall be as close to the signature as possible
without compromising any pertinent data. This form shall always be the first, or
cover sheet, of the appraisal report, and no other cover sheet shall be used.
Upon assignment, the fee or staff appraiser is furnished an Appraisal Request
Form and an Information Sheet, FRM4-H. The Appraisal Request Form
contains the name of the property owner(s), location and size of the property,
areas in the taking, area(s) remaining, improvements to be acquired and
improvements remaining, if any, for each parcel assigned. Additional
information assists the appraiser in contacting the property
owner(s)/representative(s). FRM4-H provides the appraiser with information
obtained from the property owner by the Right of Way Agent on the initial
contact. Information contained on this form that is pertinent to the appraisal
report should be verified by the appraiser. It is the responsibility of the Right of
Way Agent to list all improvements to be acquired and to make reference to all
others on the subject property. It shall be the responsibility of the appraiser to
verify this information. Errors found should be reported immediately to the Area
Appraiser. Under no circumstances shall the appraiser make any changes
without the prior approval of the Area Appraiser.
5.24
PREAMBLE
A. Objective of the Appraisal and Purpose of Report
The objective of this appraisal is to estimate the market value of the subject
property. The purpose of this report is to present data and analyses which
support the opinion of market value.
B. Definition of Market Value
As defined in The Dictionary of Real Estate Appraisal, 5th Edition, market
value is the amount in cash, or on terms reasonably equivalent in cash, for
which in all probability the property would have sold on the effective date of
the appraisal, after a reasonable exposure time on the open competitive
market, from a willing and reasonably knowledgeable seller to a willing and
reasonably knowledgeable buyer with neither acting under any compulsion
to buy or sell, giving due consideration to all available economic uses of the
property at the time of the appraisal.
75
C. Scope of the Appraisal
The scope of this appraisal involves an inspection of the subject property
and general area, research into the market for sales and other comparable
information, analysis of the findings, and a report of the findings in a
narrative format.
D. Hazardous Material Statement
Unless otherwise stated in this report, the existence of hazardous material,
which may or may not be present on the property, was not observed by the
appraiser. The appraiser has no knowledge of the existence of such
materials on or in the property. The appraiser, however, is not qualified to
detect such substances. The presence of substances such as asbestos,
ureaformaldehyde foam insulation or other potentially hazardous materials
may affect the value of the property. The value opinion is predicated on the
assumption that there is no such material on or in the property that would
cause a loss in value. No responsibility is assumed for any such conditions,
or for any expertise or engineering knowledge required to discover them.
The client/property owner is urged to retain an expert in this field, if desired.
That is, the subject property is appraised "as clean.
E. Americans with Disabilities Act
The appraiser has not made a specific compliance survey and analysis of
the subject parcel to determine whether or not it is in conformity with the
various detailed requirements of the American with Disabilities Act ("ADA").
It is possible that a compliance survey of the property together with a
detailed analysis of the requirements of the ADA could reveal that the
subject parcel is not in compliance with one or more of the requirements of
the Act. If so, this fact could have a negative effect upon the value of the
property. Since the appraiser has no direct evidence relating to this issue,
the appraiser did not consider possible non-compliance with the
requirements of ADA in estimating the value of the subject.
The Preamble, FRM5-I, is to be attached to the appraisal following the
Appraisal Summary Sheet.
5.25
INSPECTION OF THE PROPERTY
Federal Statues make it a requirement that the owner or his/her authorized
representative be given an opportunity to accompany the appraiser during the
inspection of the property.
In this first item of the report, the appraiser shall state the date or dates of the
inspection of the subject property, the name of the owner or the owner’s
representative with whom the property was inspected, and any pertinent
comments relative to the interview with the owner or owner’s representative
76
which may be helpful to the Review Appraiser, the Right of Way Agent or the
Department of Transportation Trial Attorney.
The appraiser shall explain in this section why, if for any reason, inspection of
the property was made without the owner or his representative being present.
In the case of absentee owner, it is expected that if the owner wishes to
accompany the appraiser, he/she should make arrangements to either be
present in a reasonable length of time or designate a local representative or
agent to appear for him/her. A period of two weeks or more would be
considered unreasonable as projects and appraisal contracts that are set up on
a predetermined time schedule cannot be delayed for an indefinite period.
Unless a specific date of appraisal is furnished the date of the appraisal shall
be the date that the appraiser made the final inspection of the property.
5.26
DESCRIPTION AND ANALYSIS OF THE MARKETING
AREA NEIGHBORHOOD AND DISTRICT
The data included in this section should relate the four forces affecting valueeconomic, social, physical and governmental-to the present state of the
neighborhood with its past and probable future and to the subject property. The
analysis of the neighborhood will vary with the complexity of the property being
appraised and the rate of change experienced in the neighborhood. The
discussion should include such information as it directly affects the appraised
property together with the appraiser’s conclusions as to significant trends
affecting the property and the neighborhood.
It is improper to base a conclusion or opinion of value, or a conclusion with
respect to neighborhood trends, upon stereotyped or biased presumptions
relating to race, color, religion, sex or national origin or upon unsupported
presumptions relating to the effective age or remaining life of the property being
appraised or the life expectancy of the neighborhood in which it is located.
Racial, religious, and ethnic factors are deemed unreliable predictors of value
trends or price variances.
5.27
DESCRIPTION OF THE LAND OR SITE
This description should be concise, but complete enough to give a good mental
picture of the land. The appraiser shall describe the land by its present use and
physical appearance, noting such pertinent factors as area, existing means of
ingress and egress, dimension, location, topography, shape, soil types, mineral
deposits, drainage, available utilities, allotments, and any other important
features which may affect or influence value.
5.28
DESCRIPTION OF THE IMPROVEMENTS
77
The description of the buildings and other improvements may vary somewhat
depending upon the circumstances of a particular parcel. If the buildings are
valuable and will be seriously affected by the highway construction, the
description shall be comprehensive; if they are of little or nominal value, the
description shall be somewhat less comprehensive.
With the approval of the Area Appraiser, and when it is obvious that there is no
change in the value of the buildings, the appraiser may report a brief
description and opinion of value for these buildings.
The appraiser is required to inspect all buildings on the subject property,
whether they will be affected by the taking or not. It is essential that the
owner be aware of the appraiser’s inspection.
A description of the buildings should include, but not be limited to, the type and
quality of construction, physical age, effective age, remaining economic life,
number and kind of rooms, size, square or cubic content, fixtures, equipment,
condition, and any other pertinent features.
5.29
ZONING INFORMATION
The appraiser shall state the present zoning affecting the subject property with
an explanation or definition of the applicable zoning requirements. The
appraiser shall also state whether the investigation revealed any probable
change in the zoning, and if so, the probable future zoning and also an opinion
of its effect on the subject property. Caution: Existing or proposed zoning does
not necessarily dictate or indicate the highest and best or most profitable use of
a property. Thus, if there is a reasonable probability that the zoning
classification will be changed, this probability should be considered-but only to
the extent that it affects market value at the effective date of the appraisal.
5.30
PROPERTY TAX
Although the value of the subject is to be estimated by the appraiser without
reliance on the value indicated by tax record, this information is important to the
Reviewing Appraiser and the Negotiator. The report shall give appraised value
and year, assessed value, and the annual tax burden. If there is a substantial
difference between the appraiser’s estimated value of the subject property and
the value indicated by the tax records, the appraiser shall comment on such
divergences. When the tax value is higher than that estimated by the
appraiser, and no discussion of this factor is included in the narration, the report
shall not be acceptable.
5.31
PUBLIC AND PRIVATE RESTRICTIONS
78
Private agreements contained in the deed and public restrictions affecting the
subject property shall be discussed. These restrictions could include
easements, Greenway Belts, Health Department Regulations, environmental
influences, etc. In rural areas, it is important to discuss the effect of Health
Department Regulations on the subject property as the acquisition may render
the remaining property uninhabitable or unusable for building purposes due to
area and/or soil capacity requirements.
5.32
HISTORY OF THE PROPERTY
A history of the subject property covering the past five years shall be entered.
If the property has changed hands within the past five years, the appraiser must
give the recorded data of each transfer giving all pertinent facts including a
confirmed sales price. A recent sale of the subject property can be a significant
indicator of value. When considering a sale of the subject, the appraiser must
determine whether there had been any improvements to or changes made in
the property and to what extent they might have affected value or the sale
price. If the sale of the subject is not employed in the valuation process, then
the appraiser must explain why it was not employed. The appraiser must also
enter any out-conveyance from the parent tract of the subject property within
the past five years. If the property, or any part thereof, is on the market for sale
or lease, under contract for sale or lease, the details of the status to include
offering price, are to be explained. If there have been no transfers of the subject
property within the past five year, the appraisers shall state that fact and give
the date the present owner acquired the property, the book and page of record,
if recorded, and any other facts pertinent to ownership. The Department of
Transportation simply wants to know when and how the property was acquired
and from whom. An appraisal report not showing the history of the subject
property will be returned to the appraiser and payment for his or her services
will be withheld until this part of the report is completed.
5.33
HIGHEST AND BEST USE ESTIMATE
The appraiser shall explain his or her opinion of the highest and best use of
subject property. Highest and best use is defined in 5th Edition of The
Dictionary of Real Estate Appraisal as, "The reasonably probable and legal use
of vacant land or improved property, which is physically possible; appropriately
supported, financially feasible, and that results in the highest value." The
principle of the highest and best use is extremely important in estimating fair
market value and the appraiser must be cautious in its determination,
particularly if the most profitable use is different from the present use of the
subject property. The appraiser must fully explain all reasoning in the
development of highest and best use. A statement without explanation, giving
an opinion of highest and best use, renders the report unacceptable. The
appraiser should comment on the existing land use pattern surrounding the
subject property and its relationship or position in that use pattern. It will also be
79
helpful if the appraiser indicates whether the use is consistent with the present
or proposed zoning of the subject property.
5.34
VALUATION OF PROPERTY BEFORE THE TAKING
At least one of the three generally accepted approaches to value must be
employed where applicable in all narrative highway appraisals. The Income
Capitalization Approach to value shall be used on investment type properties
and at least the Sales Comparison Approach on other types of properties,
except special purpose properties, unless otherwise specified by the Area
Appraiser. The availability of market sales of competitive properties will
generally be the factor in deciding whether to use the Sales Comparison
Approach or to rely on the Cost Approach. All pertinent calculations used in
developing the approaches to value shall be shown in both the before and after
appraisals. All computations will be rounded to the nearest appropriate dollar
amount in the appraisal. The appraiser should exercise caution in the
rounding process; the appraiser must be consistent in rounding. If the appraiser
rounds up in the Before Value Estimate, then to be consistent, the appraiser
shall round up in the After Value Estimate. There will be no rounding on the
summary sheet. NOTE: Any decrease or increase in the fair market value of
real property prior to the date of valuation caused by the public improvement for
which such property is acquired, or by the likelihood that the property would be
acquired for such improvement, other than that due to physical deterioration
within the reasonable control of the owner, shall be disregarded in determining
the compensation of the property.
5.35
OMISSION OF AN APPROACH TO VALUE
Even though the appraiser may have been allowed by the Area Appraiser to
omit one or more approaches to value, he or she shall still explain the reasons
for the omission in the appraisal report. An appraisal report, which omits an
approach to value without comment, explanation, support and reference to prior
concurrence by the Area Appraiser, shall be unacceptable.
5.36
SALES COMPARISON APPROACH
The Sales Comparison Approach is considered to be the strongest for
condemnation purposes. This approach is generally better understood by the
public as a whole and more acceptable to the courts. Greatest emphasis
should be placed on this approach whenever possible. A minimum of three
comparables shall be required. If listings of comparable properties are used,
these shall be in addition to the minimum three comparables. A summary of
the appraiser’s analysis is to be exhibited in chart form. The chart shall be
accompanied by a narrative explanation of the analysis and justification for any
80
and all adjustments. The appraiser shall show an allocation for land and
improvements upon reconciling the final value conclusions by the Sales
Comparison Approach.
5.37
COST APPROACH
The Cost Approach is often the only applicable one when appraising special
purpose properties such as schools, churches, or other properties, which rarely
sell on the market and produce no income. This approach is also useful when
there are insufficient competitive sales to adequately employ the Sales
Comparison Approach. If it is obvious that the highest and best use of the land
as though vacant is more profitable than the existing use of the whole property
(land and improvements), it then may not be necessary to include a
depreciated reproduction cost of the improvements merely to show a zero value
for such improvements. The decision to omit these mechanical functions shall
be in concurrence with the Area Appraiser at the time of the appraisal
assignment. There are assignments, such as providing information for
replacement housing payment, when it will be necessary to estimate the
reproduction cost new when improvements contribute no value under the
highest and best use concept. Deprecation shall show the dollar amounts for
each of the three categories-physical deterioration, functional obsolescence,
and economic obsolescence.
5.38
LAND VALUATION
The value of the land, as if vacant and available for its highest and best use,
shall be estimated by the use of sales of similar properties in the same manner
as that employed in the Sales Comparison Approach. It is preferable that land
value not be estimated by extraction from a sale or sales of improved
properties. A minimum of three comparables shall be required. If listings of
comparable properties are used, these must be in addition to the minimum
three comparables. A summary of the appraiser’s analysis is to be exhibited in
chart form. The chart shall be accompanied by a narrative explanation of the
analysis and justification for any and all adjustments.
5.39
BUILDING REPRODUCTION COST
Reproduction cost is the cost of reproducing an improvement with as nearly an
exact replica as modern materials and equipment will allow, as of a given date.
The appraiser’s estimate of reproduction cost shall be substantiated by one of
the generally accepted methods, such as the quantity survey, unit-in-place, or
comparison (square foot or cubic foot), etc. Cost data from current updated
cost manuals will be acceptable if set out properly, giving page references, and
accompanied by a narrative explanation. Any cost indications derived through
cost manuals shall be verified by specific local sources. In some instances, a
81
cost estimator may be consulted or employed by the appraiser. If the appraiser
intends to employ a cost estimator or consultant to assist in the estimate of
reproduction cost, he or she shall indicate who will be employed in the
Appraisal Fee Proposal. The appraiser’s fee proposal shall include, any cost
estimator’s or consultant’s fee. In any event, the appraisal report shall state
which method was used and the appraiser’s reasons for using it. Caution:
Replacement cost, which assumes replacement of subject improvements with
those of like utility, is not acceptable in highway appraisals, except as an
element in measuring functional obsolescence.
5.40
ESTIMATE OF ACCRUED DEPRECIATION
Depreciation is defined as the difference between the value of the
improvements and the cost of their reproduction at a given time. Depreciation
is caused by physical deterioration, functional obsolescence, and economic
obsolescence. Depreciation may be estimated in the Cost Approach by one of
several methods depending upon the extent to which improvements are
affected by the taking. That is, if a structure is taken or has a resulting loss in
value created by the taking, the Engineering Method, the Breakdown Method,
or the Market Method shall be employed. These methods of depreciation shall
support the depreciation items existing at the time of the inspection of the
structure(s) as included in the description in the appraisal report. When the
total depreciation can be supported by the market, a lump-sum amount is
acceptable, provided the dollar amount of each type of depreciation is given. In
the case of special purpose or other properties where market data is not
available and the Cost Approach is used to support the value estimate, each
type of depreciation shall be shown separately as either a dollar amount or a
percentage, and a detailed explanation of each type of depreciation is required.
The detailed explanation shall contain the appraiser’s reasoning for each type
of depreciation in sufficient detail to allow a Review Appraiser to make a sound
judgment of the validity and acceptability of each type of depreciation measure.
When in concurrence with the Area Appraiser, the Age-Life Method of
depreciation may be employed in appraisal reports where improvements are
not taken or affected, and where structures having nominal value such as
sheds and pump houses are involved. The methods for measuring depreciation
described herein and other methods of estimating accrued depreciation may be
found in most good appraisals texts or professional journals. A mere statement
to the effect that a certain percent of depreciation exists shall not be sufficient.
An appraisal report using the Cost Approach which does not contain an
explanation for each type of accrued depreciation in the subject property and
which does not show the development of the method used by the appraiser
shall not be acceptable.
5.41
INCOME CAPITALIZATION APPROACH
The Income Capitalization Approach is required when appraising investment
82
type property unless stipulated otherwise by the Area Appraiser. This approach
is relevant when the primary purpose of ownership of the property is for its
ability to produce a net annual income that is in balance with the highest and
best use of the property. The income produced must be attributable to the real
property itself and not to the owner, manager, or to the business operating on
the subject property.
5.42
THE POTENTIAL GROSS INCOME ESTIMATE
The appraiser should, whenever possible, examine the records of actual
income produced by a property; keeping in mind that a gross income estimate
for appraisal purposes could be quite different from the actual income
produced, and should be based on what similar local properties are
commanding for rent. All existing leases shall be discussed. The economic
rent may be more or less than the present actual income produced. Potential
gross income includes the annual income from all parts of the real property as
though it were fully occupied. All rental properties used to estimate economic
rent shall be identified, giving their location, description, lessee, lessor, and
terms of lease (amount of rent, length, options, covenants, etc.). A minimum of
three comparables shall be required. If listings of comparable properties are
used, these shall be in addition to the minimum three comparables. A summary of the appraiser’s analysis is to be exhibited in chart form. The chart shall
be accompanied by a narrative explanation of the analysis and justification for
any and all adjustments.
5.43
VACANCY AND COLLECTION LOSS
It would be unusual to expect the property to be occupied fully throughout its
useful life. The appraiser will usually discount the gross income estimate to
allow for any vacancy and collection loss, with occasional exceptions, such as
properties that normally rent to Class A tenants on long-term leases. The
percentage of vacancy and collection loss will vary according to the type of
property, neighborhood factors, and general business conditions. The estimate
of potential gross income, based on economic rents, plus any service income,
minus the allowance for vacancy and collection loss, is called "Effective Gross
Income".
5.44
EXPENSES AND NET INCOME
From the Effective Gross Income, the appraiser shall deduct all expenses
chargeable to the operation of the real estate. The appraiser shall estimate the
probable future expenses of operating the real property based on the analysis
of more than one year’s experience. After all expenses, fixed and variable,
have been estimated, the total is deducted from the Effective Gross Income
which yields the net income before capitalization.
83
5.45
CAPITALIZATION
The method of capitalization used in a particular appraisal will be left to the
discretion of the appraiser. The appraiser should understand the different
methods to the extent that he or she can determine which method is most
applicable to the given appraisal problem.
5.46
CAPITALIZATION RATES
The appraiser may estimate the capitalization rate by employing a variety of
current accepted appraisal techniques. The quantity and quality of available
data will determine which technique is most applicable. Accepted techniques
include those derived from comparable sales, gross income multipliers, band of
investment consisting of mortgage and equity components, band of
investments consisting of land and building components and the debt coverage
formula. It is most necessary that the capitalization rate be supported and
documented by appropriate data. The most effective guide to the proper rate at
which the net income should be capitalized is the ratio of net income to sales
prices in similar transactions.
5.47
RENT MULTIPLIERS
When appraising residential properties, rent multipliers are used by some
appraisers in their Sales Comparison Approach, and by others in the Income
Capitalization Approach. It makes no difference where multipliers are used in
the appraisal as long as the multiplier is adequately and properly documented
and supported by sales and rentals of similar properties. When possible,
monthly multipliers should be employed in residential properties when one
dwelling is involved. When several dwellings are being appraised under a
single ownership, such as rental housing held for investment purposes, it will be
more desirable for the appraiser to process that income in the same manner as
income-producing property through the use of a reconstructed operating
statement.
5.48
INDICATED VALUE BY THE INCOME CAPITALIZATION
APPROACH
The total value must be allocated by separating land value(s) and improvement
value(s).
5.49
RECONCILING BEFORE VALUE INDICATIONS
After the appraiser has developed the applicable approaches to value, he or
she shall then reconcile them, stating which approach is considered to be the
84
most reliable indication of value and the reasons for selecting the approach. In
appraisals made for the Department of Transportation, it is preferred that the
appraiser select the indication of value from the approach relied upon and use
that dollar amount as the final estimate of value of the entire property before the
taking. It is necessary that the appraiser show an allocation between land and
improvements in the final reconciliation.
5.50
DESCRIPTION OF THE TAKING
The appraiser shall describe that which is to be acquired under two
subheadings:
1. Land - A physical description of the land to be acquired will be made
including but not limited to size, shape, location and type/use (e.g. front yard,
wetland, parking lot). The description shall also include and describe
separately any additional areas outside the right of way designated as
slopes, drainage, or construction easements.
2. Improvements - Improvements to be acquired shall be described in sufficient
detail to effectively identify those improvements being taken. A careful
analysis shall be made regarding the taking of any water supply (wells)
and/or septic systems such as tanks and nitrification lines. In the event
the boundaries of the property being appraised fall entirely within the limits of
the right of way, a statement describing the acquisition as a total taking will
suffice. No discussion of the remainder is necessary.
In summary, the description of the taking shall correlate with the
magnitude of the appraisal problem.
5.51
DESCIPTION OF THE REMAINDER AND THE EFFECTS
OF THE TAKING
A description of the subject property remaining after the taking is the next
requirement of the appraisal report. The appraiser is expected to use good
judgment in this area of the report. If the property being appraised is truly and
essentially the same, less the taking, in the after situation as in the before
situation and there are obviously no damages to this remainder portion, then
the appraiser may reduce somewhat the detail of the description and refer to
the description made in the Before Value Estimate. Referral to the description
made in the Before Value Estimate shall not be acceptable in any case where
there are apparent damages or benefits to the remainder property. The
appraiser shall discuss the effect of the taking and/or project construction on
the subject property. The appraiser shall elaborate on such factors as legal
control of access, physical accessibility, change in grade, cuts and fills, effect
on water and sewerage, change in use, isolation, severance, and any other
factor which, in the opinion of the appraiser, will affect the market value of the
85
subject property as a result of the highway taking. Caution: Different types of
easements will have different effects on a particular property. Some permanent
types of easement may have less effect on value than a temporary one. The
appraiser shall consider carefully each easement as to its ultimate effect on the
market value of the property. If the appraiser has a problem concerning
easements, the Area Appraiser should be consulted. Any one or a combination
of any of the aforementioned factors may reduce any part of a septic system
and cause the remainder to be uninhabitable. When considering the effects of a
taking on a remainder, the appraiser shall refer regularly to those sections of
the NCDOT Real Estate Appraisal Standards and Legal Principles dealing with
compensable and non-compensable damages and benefits.
5.52
HIGHEST AND BEST USE OF THE REMAINDER
The appraiser shall make an estimate of the highest and best use of the
property remaining after the taking as if construction were completed and the
new highway facility open to traffic. The definition for highest and best use
shall be applied as in the before value estimate If the taking has caused a
change in highest and best use, the appraiser shall state the change, explain
the reasons and conclusions, and comment on any probable or possible zoning
changes. If, in the opinion of the appraiser, the highest and best use of the
property after the taking is the same as before the taking, a statement to that
effect will suffice.
5.53
VALUATION OF PROPERTY AFTER THE TAKING
The value of the remaining property after the taking shall be estimated in the
same manner as the value of the entire property before the taking. The
application of one or more of the three approaches to value will often become
more difficult due to the scarcity of sales and rentals of properties truly
comparable to the subject remainder. The appraiser shall make every effort to
explain the estimate of value of the remainder in the best manner possible and
with the best appraisal techniques since this is usually the main area of
contention in negotiating for settlement of a right of way claim. The appraisal
premise covering after value appraisals shall be in concurrence with the Area
Appraiser prior to assignment. The Estimate of After Value might be supported
by using one or more of the following methods:
A. Sales comparable to the remainder properties. If the same sale or sales
employed in the before value are relied upon in the after value, a
separate analysis shall be shown on each sale.
B. Sales of comparable properties from which there have been similar
acquisitions or takings for like usages.
C. Development for the Income Approach on properties which show
86
economic loss or gain as a result of similar acquisitions or takings for like
usages.
D. Indications from severance damage studies as related to similar takings.
E. Public sales of comparable lands by the State or other public agencies.
F. In the event the data described in (a) through (e) above are not available,
the appraiser shall so state and give the reasoning for the value estimate.
G. Cost to cure methods when applicable.
In conclusion, the appraiser is cautioned to appraise the remaining property,
not the taking. Merely subtracting the value of the part taken from the estimate
of before value to arrive at the after value renders the report unacceptable.
5.54
RECONCILING AFTER VALUE INDICATIONS
After obtaining indications of after value by the use of the applicable
approach(es) to value, the appraiser shall again reconcile stating the factors
considered to be the most reliable indicators of after value and the reasons for
relying on those factors. From this reasoning process will come the appraiser’s
estimate of value of the property remaining after the taking. In appraisals made
for the Department of Transportation, it is preferred that the appraiser select the
indication of value from the approach relied upon (if more than one approach is
employed) and use that dollar amount as the final estimate of value of the
property immediately after the taking. It is necessary that the appraiser show
an allocation between land and improvements in the final reconciliation of after
value.
5.55
DIFFERENCE IN BEFORE AND AFTER VALUE
When the appraiser’s estimate of value of the property remaining immediately
after the taking is less than the whole property immediately before the taking,
the resulting difference is the amount the property has been reduced in value
and will represent the appraiser’s estimate of damages. In the event the value
of the property after the taking exceeds the value of the property before the
taking, the difference will be the amount by which the property has been
enhanced in value or benefited. This full amount shall be shown in the
appraisal report, but reduced to zero (-0-) by stating "Benefits" on the Summary
Sheet as the "Difference Between Before and After Value".
5.56
THE APPRAISAL REPORT ADDENDA
The Addenda of the appraisal report shall contain, but not be limited to, the
87
following data and/or exhibits.
5.57
ALLOCATION
After the appraisal is completed and an estimate of total damages secured, the
appraiser shall analyze and tabulate the difference between the before and
after value showing a reasonable allocation to land, improvements, damages to
the remaining property, and benefits, if any. The allocation shall directly relate
to the differences in before and after value for land and improvements shown
on the summary sheet. This allocation shall be included as the first item in the
Addenda of all copies of the appraisal report.
Example:
Value of Land Taken
$0000
Value of Improvements Taken
$0000
Damages to Remainder
$0000
Benefits to Remainder
$0000
Difference Between Before and After Values
$0000
Also, if any portion of the property being appraised should be tenant-owned,
then it shall be necessary for the appraiser to show in the Allocation the
separate values for any tenant-owned items(s).
5.58
PHOTOGRAPHS OF THE SUBJECT PROPERTY
The appraisal report shall contain a sufficient number of photographs of any
improvements, features, or unusual conditions on the subject property
which are affected in value by the project. The appraiser should select
positions which enable him to photograph all sides of any affected
improvement(s), as well as the area to be acquired, even if vacant land.
The project number, parcel number, and owner’s name shall be typed at the
top of each page of photographs. Each photograph is to be a digital
photograph and properly identified by the following: date photograph was
taken, by whom, position taken from, and direction of view. Photographs of
the subject property shall of sufficient size to afford the viewer a reasonable
view of the subject. Any photographs of the subject shall be of acceptable
quality.
5.59
SKETCH OF THE SUBJECT PROPERTY
The appraiser will receive a preliminary sketch of the properties to be appraised
along with the Summary Sheet(s) and other items when the assignment is
88
received. The appraiser shall verify the information depicted on this sketch to
be placed in each copy of the report. The sketch prepared by the appraiser or
a qualified person working for the appraiser shall contain and denote the areas,
boundaries, and dimensions of subject property with any existing roads or other
means of access, existing and/ or proposed right of way lines affecting the
property, all buildings, and other improvements which affect value, a North
arrow, project and parcel numbers, owner’s name, the name of the person who
prepared the drawing if other than the appraiser, and any other property
features pertinent to the appraisal. Subject photographs shall be illustrated on
the sketch showing the photograph number, position taken from, and direction
of view. The sketch need not be to scale. A reproduction or cut-out section of
the strip map or any other map or sketch furnished the appraiser by the
Department of Transportation will be acceptable, provided he or she verifies
and agrees with its contents. The sketch shall be included in each copy of the
appraisal report.
5.60
FLOOR PLAN OF THE IMPROVEMENTS
A floor plan showing dimensions and relative size and shape of all structures
located within the right of way limits or affected by the acquisition shall be
included. The relationship of existing and/or proposed right of way lines and
any affected structure is required and may be shown on either of the property
sketch, the floor plan drawings, or both.
5.61
PHOTOGRAPHS OF COMPARABLES
Identified photographs of comparable sales and rentals used in the report
showing all principal, aboveground improvements shall be included in the
appraisal report or in a basic data report. The photographs shall be placed in
the report in such a manner that they will not be confused with photographs of
the subject property. Digital Photographs of any vacant land sales used must
be included in the appraisal report or basic data report and placed in the lower
right hand corner of the FRM G, the Comparable Sales Form.
5.62
SKETCHES OF COMPARABLES
Sketch of any comparable sales or rental used are required and may be placed
in the appraisal report with the photographs of same. These sketches can be
placed in the lower left hand corner of the FRM G, the Comparable Sale Form.
The sketches shall contain a close approximation of the property boundaries,
land area, general location of improvements, any existing highways or other
means of access, property identification, and a North arrow. Sketches of
comparable sales do not need to be to scale, nor do they need to be any larger
than a 3.5" by 5" photograph. The important factors involving sketches of
comparable sales in the report relate to the elements of comparison, such as
89
road frontage, shape, size, etc.
5.63
LOCATION MAP
A legible map of the city, county, or region showing the exact location of those
sales and rentals referred to in the report, and the location of the subject
property in relation to those sales and rentals, shall appear as an exhibit in the
Addenda of the appraisal or in a basic report.
5.64
ADDITIONAL EXHIBITS
The appraiser may include at his or her discretion any additional exhibits, such
as subdivision maps, deeds, aerial photographs, or other data which is deemed
necessary or which will make the report more complete or better understood.
5.65
CERTIFICATE OF THE APPRAISER
As the last item in each copy of the report, the appraiser is required to place the
executed certificate, the Certificate of Appraiser, FRM 5-J. The appraiser
certifies that his or her independent opinion of fair market value as of the date
of the appraisal is $_____ (amount) based upon his or her independent
appraisal and the exercise of professional judgment. The certificate is then
signed, sealed/stamped and dated. The certificate shows both the date of the
report and date of the certificate. When rendering current appraisals for
acquisition purposes, the date of the appraisal report shall be the date which
the appraiser last inspected the subject property. The appraisal report shall
represent the property as it existed at the final inspection, otherwise, a
subsequently dated appraisal might well describe a property that has undergone a material or significant change before the last date that the appraiser
worked on the appraisal report. Consequently, the postdated appraisal would
not represent the property as intended by the appraiser. Appraisal firms are not
employed unless an individual appraiser within the firm is specified to be
responsible for the valuation. A new certificate shall be prepared whenever
there is a change in the appraisal report which affects value, or where the date
of valuation changes.
5.66
PROOFREADING THE REPORT
It is imperative that the appraisal report be proofread and all calculations
checked by the appraiser. The omission, without logical explanation and prior
approval by the Area Appraiser of any required item, renders, the report
unacceptable.
Any report found to be unacceptable may be returned along with the statement,
90
and payment may be withheld until the appraisal is deemed acceptable. Every
effort is made on the part of the Department of Transportation to prevent any
undue delays in processing statements for appraisal services.
5.67
ERRORS IN THE APPRAISAL REPORT
In the event errors in math or factual data are found in an appraisal, the Review
Appraiser will call or email the appraiser with the necessary corrections or
questions. The appraiser shall make the necessary corrections and resubmit to
the Area Appraiser. Payment of appraisal fees may be withheld until all
necessary corrections have been made.
5.68
FORM APPRAISAL REPORTS
The Uniform Residential Appraisal Report form, Freddie Mac Form #70/Fannie
Mae Form #1004 (URAR), will be assigned at the discretion of the Area
Appraiser and may be used for appraising total acquisitions of either improved
single family residential or 2-4 unit multi-residential properties. The URAR form
appraisal report may be used only if the land’s highest and best use is single
family residential and the property is improved with one single family residence
or the land’s highest and best use is a 2-4 unit multi-residence and the property
is improved with a 2-4 unit multi-residence. The MHAR form should be used
with properties improved with manufactured homes considered as realty (to
include modular homes, and single or doublewide homes considered as realty).
Land Appraisal Report forms and any other appraisal report forms accepted by
the NCDOT will be assigned at the discretion of the Area Appraiser.
When using the URAR report format, an Appraisal Summary Sheet, Form
FRM5-H; Preamble, Form FRM5-I; and Certificate of the Appraiser, Form
FRM5-J; must still be included. All form appraisal reports shall include the
following required addenda items: allocation; photographs of the subject
property; sketch of the subject property; floor plan of the improvements;
comparable sales data sheets, Form FRM5-G; sales location map; and
additional exhibits that the appraiser may include which will make the report
more complete or better understood. When appraising a total acquisition of
either a single-family residence of a 2-4 unit multi-residence, with no remaining
or excess land, an allocation between land and improvement values is still
required.
5.69
THE VALUE FINDING
The Value Finding Report, Form FRM5-K, will be assigned at the discretion of
the Area Appraiser and may be used to estimate the value of the acquisition
and cost-to-cure for small items up to a total of $50,000. The Value Finding
Report form shall not be used when damages other than cost-to-cure exist.
91
This report format is not recognized as an appraisal by the North Carolina
Appraisal Board but is an NCDOT document established by state and Federal
policy to acquire fractional interests on claims involving minor acquisitions
having no associated damages to the remainder.
5.70
ITEMS TO BE FURNISHED THE APPRAISER
Upon assignment, the fee or staff appraiser is furnished the Appraisal
Request/Summary Sheet Form, Form FRM4-B, Existing Right of Way Abstract,
Form FRM4-A; and the Information Received on Initial Contact Form, Form
FRM4-H, which contain the name of the property owner(s) location and size of
the property, the area(s) in the taking, and the area(s) remaining if any, for each
parcel assigned. All appraisers who do work for the Department of
Transportation are furnished a copy of the NCDOT Real Estate Appraisal
Standards and Legal Principles which assists them in preparing and submitting
the appraisal report. Also, to assist the appraiser in an assignment, the
Department will furnish or otherwise make available, prior to completion of the
appraisal, the following information:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
all pertinent title information which may affect the value of the property if
not listed on the Information Received on Initial Contact Form, Form
FRM4-H.
the rights to be acquired,
any construction features or other adjustments to be undertaken to
mitigate damages,
right of way plans,
cross sections,
a sketch of the property to be appraised showing, if a total take, boundary
dimensions, location of improvements, and other significant features of
the property if not otherwise provided on the right of way plans,
a sketch of the property to be appraised showing, if a partial taking, the
area to be acquired, location of improvements affected by the taking, the
area of each remainder, and any other significant features affected by the
taking if not otherwise provided on the right of way plans, and
Equipment Considered Real Property - Realty, FRM5-M Realty
Components and/or Equipment Considered Real Property - Fixed,
FRM5-L, if available.
Any errors or discrepancies in the preliminary information furnished the
appraiser should immediately be brought to the attention of the Area Appraiser
for correction. Under no circumstances should the appraiser directly contact
the assigned right of way agent or project engineer without the authorization
and/or approval of the Area Appraiser.
5.71
GENERAL LEGAL PRINCIPLES
92
The following references are furnished for the purpose of informing appraisers
for the Department of Transportation of the applicable law to guide them in
arriving at an unbiased and competent opinion of fair market value. The
Supreme Court of North Carolina has formulated various rules relating to "just
compensation” and the measure of damages where private property is taken for
public use by the Department. Each piece of land presents its own set of facts
to which this law is applicable. These references are not for the purpose of
telling an appraiser what method or approach to use in making his appraisal,
but are merely guides as to what may under the law be considered in making
the appraisal and what will constitute competent evidence if presented in Court.
Regardless of the ability of an appraiser, or knowledge of the facts presented
by the property, and property values in the area, it is impossible to make a valid
condemnation appraisal without applying these rules and legal concepts.
Some of these rules differ from state to state. A good condemnation appraisal
based on Virginia or South Carolina law might be worthless in North Carolina.
The Area Appraiser will furnish certain necessary information when requesting
an appraisal, such as maps, plans, title certificates, and date of taking. This
information plus the facts presented by the property, plus the law as applied by
the court, together with the appraiser’s own knowledge and experience in
valuations should be sufficient for an accurate and unbiased fair market value
appraisal of the subject property.
The appraisal is the means of arriving at the difference in fair market value for
the purpose of negotiation, and in the event that settlement is not reached, it
must serve as the basis for the appraiser’s testimony in Court. It is essential
that the appraisal follow the rules of law laid down by the Court. A summary of
the most important of these rules of law follows:
5.72
MEASURE OF DAMAGES
The measure of damages for the taking of part of a tract for highway purposes
is the difference between the fair market value of the entire tract, including
improvements, immediately before the taking and the fair market value of the
remainder tract including improvements immediately after the taking. The sum
includes compensation for the part taken and compensation for injury to the
remaining portion, and is to be offset by both general and special benefits
accruing to the property from the construction or improvement of the highway.
Where the entire tract is taken the measure of damages is the fair market value
of the entire tract, including the improvement located thereon, at the time of the
taking. The measure of damages has been enacted by the General Assembly
as follows in G.S. 136112:
The following shall be the measure of damages to be followed by
the commissioners, jury or judge who determines the issue of
damages:
1.
Where only a part of a tract is taken, the measure of damages for said
taking shall be the difference between the fair market value of the
93
entire tract immediately prior to said taking and the fair market value of
the remainder immediately after said taking, with consideration being
given to any special or general benefits resulting from the utilization of
the part taken for highway purposes.
2.
Where the entire tract is taken, the measure of damages for said taking
shall be the fair market value of the property at the time of taking.
Fair market value is not the value of the property to the owner, or the value
which he places on it, nor is it governed by his willingness or unwillingness to
sell. Market value is not the same as replacement value, nor is it the same as
replacement value less physical depreciation unless many other factors which
affect market value, such as design, style, demand for particular structure in the
area, utility, and other sources of functional and economic obsolescence, are
taken into consideration. Market value of property is the price which it will bring
when it is offered for sale by one who desires but is not obligated to sell it and
is bought by one who is under no necessity of having it. This definition assumes
that both the willing buyer and the willing seller are fully informed of the physical
characteristics of the property and all the uses including the highest and best
use to which it may be put. Market value, then, is not the value to the owner for
his particular purposes or to the condemnor for his special uses. It is
recognized that an owner often receives less than the value of the property to
him and that the condemnor pays more than the property is worth for its
purposes, but experience has shown that the rule is reasonably satisfactory.
Since market value does not fluctuate with the needs of condemnor or
condemnee, but with general demand for the property, evidence of loss of
profits, damage to good will, expense of relocation, and other such
consequential losses are non-compensable. In estimating values on property
in condemnation proceedings, the appraiser may consider any and all uses or
purposes to which the property is reasonably adapted and to which it might,
with reasonable probability, be applied, but has never been applied. However,
the availability of the property for future uses must be such as enters into and
affects its present market value, and regard must be given to the existing
business or wants of the community, or such as may be reasonably expected in
the immediate future to affect present market value. The test is "what is the fair
value of the property in the market". The uses to be considered must be so
reasonably probable as to have an effect on the present market value. Purely
imaginative or speculative value should not be considered. Values which are
peculiar to the owner and add nothing to the market value are not
compensable.
5.73
DATE OF TAKING AND TIME WHEN PROPERTY IS
VALUED
In condemnation proceedings the value of the property must be established
immediately before and immediately after the date of taking. The date of taking
of the property is usually established as of the date of filing of the Complaint
94
and the Declaration of Taking and Deposit in Court, at which time title to the
property and the right of possession vests in the Department of Transportation.
This date will be furnished by the Area Appraiser. Sometimes the appraisal will
be made before and sometimes it will be made after the date of taking, but the
values must be as of the time of taking. "Immediately before” refers to the
property in the state in which it existed prior to the date of taking. In arriving at
this before figure the appraiser should not consider any affect which the
contemplation or knowledge of the pending construction might have upon its
market value. "Immediately after" refers to the entire remaining tract in the
condition in which it exists except this value must contemplate and be based
upon the highway improvement in a completed state rather than some state of
construction.
In those instances where the appraisal is made prior to any construction, it is
important that the appraiser become familiar with the plans for the project as
they may affect the property at the time the appraisal is made, so that in event
of testimony in court, the appraiser will be able to testify that his appraisal was
made taking into consideration the cuts and/or fills with the road, etc., as
shown in the plans.
5.74
NATURE OF TAKING - WHAT IS TAKEN
When the taking occurs, the entire area within the right of way vests in the
Department of Transportation. For the purpose of the appraisal, it makes no
difference whether the Department of Transportation acquires a permanent
easement or fee simple title to the land. In other words, when the taking
occurs, all of the real property within the right of way becomes the property of
the Department of Transportation and that outside of the right of way remains
the property of the landowner. All improvements on the right of way, which are
a part of the realty and are not personal property, become the property of the
Department of Transportation. If the right of way line goes through an
improvement, such as a building, the Department of Transportation will make a
determination of whether to take only that portion located within the right of way
or the entire improvement (but not the title to the land outside of the right of way
upon which it is located) and the appraiser will be advised of this determination.
The owner does not have the right to remove improvements taken, nor does
the Department of Transportation have the right to move an improvement from
the right of way to some other portion of the property in the absence of an
agreement.
The appraiser may, however, be advised from time to time by the Area
Appraiser that by agreement a certain improvement located within the right of
way will be or has been moved to a point designated by the landowner; and if
such an agreement does exist between the Department of Transportation and
the landowner, the appraiser will not consider the improvement which has been
or is to be moved in making his appraisal.
When an improvement is located on the property remaining after taking, the
95
landowner is not entitled to have such improvements moved to a location more
suitable to him even though such an improvement may be located in proximity
to the right of way after completion of the highway construction. Therefore, the
appraiser is not to consider the cost of moving an improvement as an element
of damage.
Items of personal property permanently affixed to the realty by the common
owner of both to enhance the value of the realty, called "fixtures", are a part of
the realty and should be considered as such insofar as they relate to market
value. "Trade fixtures" (items of personal property affixed to the realty by one
other than the owner of the realty, used exclusively for trade and business,
having other than a localized use, and removable without injury to the affixed
item of the realty), furniture, stocks of goods and merchandise, farm machinery,
etc., are personal property and are not to be considered as taken or has having
a bearing on the market value of the property. There is often a fine legal
distinction between personal property and real property, especially when
dealing with business property and leasehold interests. The Area Appraiser will
furnish the appraiser with information on each parcel to be appraised as to
which items should be considered as realty. If there is any doubt, the appraiser
should confer with the Area Appraiser.
5.75
NOISE
Where it may be relevant, the effect of the introduction of traffic noise from the
use of the part taken for highway purposes may be considered in appraising the
fair market value of the remainder. Its relevance depends upon highest and
best use.
5.76
GENERAL AND SPECIAL BENEFITS
"Special benefits" are those benefits or enhancements in market value which
the property owner receives peculiar to his land and not common with the other
landowners in the vicinity. The appraiser is to reduce the damages to the
remainder and the value of the part taken by all benefits accruing to the land,
whether special or general or both. This differs from the rule in most states in
that benefits may be set off and deducted from the value of the part taken, as
well as damage to the remainder. This, of course, means that if the benefits are
equal to or in excess of the value of the part taken and damage to the
remainder, then the property owner is entitled to recover no monetary
compensation due to the increased value of the land being such compensation,
especially since the after value is equal to or in excess of the before value. Of
course, the property owner owes the Department of Transportation nothing if
the after value exceeds the before value. It might be well here to point out that
when the appraiser has arrived at an opinion of market value before and after,
the difference will include the elements mentioned above. This can be reduced
to a formula:
96
Market Value of part taken + damage to market value of remainder
- benefits to market value of remainder = market value before market value after.
5.77
COMPETITIVE SALES AS EVIDENCE OF VALUE BY THE
COURT
The appraiser may consider the price paid at voluntary sales of land similar to
the land being taken at or about the time of the taking as independent evidence
of the value of the land taken. The land must be similar to the land taken;
otherwise, the evidence is not admissible on direct examination. Actually no
two parcels of lands are exactly alike. Parcels may be compared only where the
dissimilarity is reduced to a minimum and allowances or adjustments are made
for such dissimilarity. Where the land used as a comparable is markedly
dissimilar in nature, condition, location, and zoning classification, then the
courts will not permit the use of such comparables as an independent evidence
of the value of the land taken. It is within the discretion of the trial judge to
determine whether there is a sufficient similarity to render the evidence of the
sale admissible. Therefore, if the appraiser is relying upon comparable sales,
he or she should make a personal examination of the property and be certain
that the comparables are sufficiently similar to the land taken before using them
as independent evidence of the value of the land actually taken.
Any purchase or acquisition of property by any public or private agency,
authority, jurisdiction, commission, state, municipality, town, city, county,
corporation, company, partnership, organization, individual, or entity having
condemning power under State or Federal eminent domain laws is
unacceptable for use in an appraisal as a competitive or comparable sale,
regardless of whether or not the purchase or acquisition was made under the
threat of condemnation.
5.78
PRIOR SALES OF SUBJECT PROPERTY
It is an acceptable legal premise that when land is taken in "eminent domain", it
is appropriate for evidence of market value to show the price at which it was
bought if the sale was voluntary and within a reasonable time of the date of
taking. The reasonableness of time is dependent upon the nature of the
property, its location, and the surrounding circumstances and conditions. In any
event, if the property has been purchased within the past five years, the
appraiser should include full details of the purchase in the appraisal report.
5.79
SETTLEMENTS, OFFERS, ETC.
The appraiser should not consider as comparable sales any settlements which
have been made by the Department of Transportation with adjoining property
97
owners, or other owners of land involved in construction of the road
improvement. These are in the nature of a settlement of a lawsuit and have no
bearing on the market value of the property being appraised; furthermore, they
are not acceptable as evidence. The appraiser should not consider any
unaccepted offers to buy or sell this or any other property as they are not
competent evidence of market value, primarily because it is impossible to know
the circumstances surrounding them. At best, unaccepted offers are only
secondhand opinions of value to a particular person who may not be under a
compulsion to buy or sell. Ad valorem tax valuation is not to be considered as
bearing on the market value as set by the tax authorities. However, the
appraiser should note in his or her report any valuation by the owner whether
for income, inheritance, or estate tax or for insurance purposes, whether or not
the appraiser considers such valuation controlling upon his or her valuation.
5.80
ADAPTABILITY, SUBDIVISIONS
In arriving at an opinion of the fair market value of the property before and after
the taking, the appraiser should consider the use or uses to which it was being
put and to which it was naturally adapted. He or she should consider it in the
light of its highest and best use, and this may not be the same use(s) before
and after the taking. If the property, or any part of it, was naturally adapted or
suitable for building sites or subdivision purposes, and if the appraiser should
find that such adaptability enhanced the market value of the land, he or she
may take it into consideration insofar as such adaptability affects its present
market value. However, in the absence of a bona fide developed subdivision, it
is not permissible to estimate the number of lots which might be cut from the
tract or any part of it, nor is it permissible to estimate the amount for which each
lot could be sold to arrive at an estimated value of the tract. Proposed or
intended uses of the property are not to be considered as a basis for market
value.
5.81
UNITY OF LANDS
In determining the unity of lands, the factors most generally emphasized are
unity of ownership, physical unity, and unity of use. Under certain
circumstances, the presence of all these unities is not essential; however,
usually the unity of use is given greatest emphasis. The parcels claimed as a
single tract must be owned by the same party or parties, but for unity of
ownership, a party does not have to have the same quantity or quality of the
interest or estate in all parts of the land. Where there are tenants in common,
one or more of the tenants must own some interest and estate in the entire
tract. The general rule is that parcels of land must be contiguous in order to
constitute a single tract for possible severance damages and benefits.
It is generally held that parcels of land separated by an established city street
and used by the public are separate and independent as a matter of law.
98
Where land is unoccupied and is held for purposes of sale and building costs,
a physical division by wrought roads and streets creates independent parcels
as a matter of law. Mere paper division by lot or property line and
undeveloped streets and alleys are not sufficient alone to destroy the unity of
land.
The unifying use must be a present use - a mere intended use cannot be
given any effect. Therefore, in a proposed subdivision which has merely been
laid out on a map and for which there are no developed streets and alleys
actually on the land, the parcel will be treated as one tract notwithstanding
any division into imaginary lots.
Where the highway crosses an established subdivision where streets and
alleys have actually been established on the ground by a physical act or where
lots have been sold, and/or where lots are occupied by separate dwellings, the
parcels are to be considered as separate properties. In such cases, lots and
buildings adjoining the rear of lots and buildings abutting on the highway where
the land taken are not to be valued as remaining property with that immediately
affected. The Area Appraiser will normally advise the appraiser whether the
area is to be considered as separate lots or as a unity so as to include the
entire tract.
5.82
ZONING AS RELATED TO LEGAL GUIDE
In the appraisal of property, any existing zoning ordinance restricting the use of
property is to be considered in determining the market value of the land being
condemned, because in determining the market value of realty, all
circumstances and conditions which become either an advantage or detriment
to the property should be considered. If the land taken is not presently
available for a particular use by reason of a zoning ordinance or other
restriction imposed by law, but there is a reasonable probability of change in
the near future in the zoning ordinance or other restriction, then the effect of
such probability upon the market value may be taken into consideration in the
appraisal. However, if the possible change in zoning ordinance restricting the
use of the property condemned is purely speculative then such a possibility is
not to be considered. All features of the zoning ordinance that have an effect
on the before or after value of the property should be reported by the appraiser.
In considering the possibility of a zoning change, the appraiser should interview
people in the affected area, as well as city officials concerned with zoning
problems, and note their opinion and attitude in the report.
5.83
BUSINESS PROFITS
In arriving at the amount of compensation due to owners of the property
(difference in before and after values) the appraiser is not to take into
consideration any loss of profits from a business conducted on the property or
99
operated in connection therewith. Neither injury to a business, inconvenience;
nor loss of profits is an appropriation or taking of property which must be paid
for. The business located on the land may be considered only insofar as it
enhances or detracts from the fair market value of the property. Where the
property itself is producing income in the form of rent, this may be considered
under the property capitalization approach in determining market value.
The appraiser is not to consider the expenses of removal or relocation of
personal property in placing value on the real property taken. In cases of losses
caused to a business by reason of a condemnation of a leasehold or of the land
on which it is conducted, the appraiser is not to consider in his or her appraisal
the removal cost of a stock of merchandise, or other personal property, or the
breakage or other injury to such property caused by such removal from a
leasehold or fee in land. Neither will he or she consider the expense of moving
trade fixtures to another location nor shall he or she consider that moving a
business to another location might result in the loss of business, customers,
and good will. Neither shall the appraiser consider the loss of business
resulting from the diversion of traffic. In summary, it is generally held that injury
to a business is not an appropriation of property eligible for compensation.
Therefore, in making the appraisal, the appraiser will not use income or profits
from a business conducted on the property in the Income approach, since
evidence of income or profits derived from a business conducted on a property
is too speculative, uncertain, and remote to be considered as a basis of
ascertaining market value of property. Business profits depend on the capital
investment, the skill in management of the owner, and other elements extrinsic
to the property itself. However, if the property itself is an income producing
property - that is having a fixed rental value, then the rental value may be taken
into consideration as bearing upon the market value.
5.84
LEASEHOLD INTERESTS
Leasehold interests are rarely any concern to the Right of Way Branch.
Leaseholds generally are a matter to be resolved between the lessor and the
lessee. Unless otherwise specified by the Area Appraiser, the appraiser shall
consider each property as if free and clear of all liens and encumbrances. If
called upon to appraise a leasehold interest, the appraisal procedure shall be in
accordance with the General Legal Principles.
However, on those claims involving property which is leased to federal
agencies, the leasehold interest shall be appraised and assigned a
separate value in the approved appraisal. Please refer to NCDOT Right of
Way Manual, Section 10.58.
The appraiser may also be asked to value the Leasehold interest where a
Billboard is involved. The Area Appraiser will provide the appraiser with a
determination prepared by the Area Negotiator stating whether the
Leasehold interest is a factor.
100
5.85
MINERAL DEPOSITS AND TIMBER
When land containing mineral deposits and/or timber is acquired, the measure
of compensation is the market value of the land including the minerals and/or
timber. These items cannot be valued as potential merchandise. Land sales
of similar properties containing similar mineral deposits and/or stands of timber
should be used to estimate the value of the subject property before and after
the acquisition. Logical studies are sometimes necessary for supporting the
estimated contributing value of timber and/ or mineral deposits.
5.86
TEMPORARY TAKINGS FOR BORROW OR
MATERIAL PITS, HAUL ROAD AND DETOUR ROADS
Under General Statutes 136-120, the Department of Transportation is
authorized to enter upon lands and structures to make surveys, borings,
soundings, or examinations as may be necessary in performing its duties.
Such action shall not be deemed a taking. However, the landowner is entitled
to damages as may result to the land as a result of such activities. Where an
area is temporarily appropriated for the purpose of acquiring borrow material,
the appraiser will consider this a permanent damage, and the measure of
damages is the fair market value of the property immediately before and
immediately after the injury. However, the taking of a borrow pit differs from
the appropriation of a permanent easement in that the appraiser may consider
in his after value the fact that the area will be returned or abandoned to the
use of property owner. The appraiser should not value the material taken from
the pit at so much a ton or yard.
In the case of haul roads or other temporary injuries of a similar nature, the
measure of damages is the diminution in the rental or usable value of the
property taken, together with such special damages by way of injury to crops,
improvements, etc., and permanent injury to the remaining land. Therefore,
as a general rule, the diminished market value of the property will not be used
as a measure of damages for a temporary injury to real estate, but only when
the injury to the realty is permanent. Therefore, in the case of a temporary
taking, such as a haul road, where the plaintiff has been deprived of the use
of the premises by reason of the injury thereto, he may recover the rental
value for the time during which he was deprived of the use.
5.87
NON-COMPENSABLE DAMAGES
In the case of loss and diminution of access where the property appraised is
being taken for a limited or controlled access project, the appraiser must first of
all find out from the Area Appraiser what access rights the property owner will
have to the project. The right of an abutting property owner to access (ingress
and egress from and to an existing highway), is a property right in the nature of
an easement appurtenant to the property. Where this right is totally
101
extinguished and no substitute way of access is provided, it is a taking of real
property right and in this event, the before value will be the fair market value of
the property with access and the value after the taking will be the fair market
value of the property with the right of access eliminated. Where the highway is
on new location or where additional right of way is taken, matters of access is
merely another factor to consider in the before and after value. Where,
however, an existing highway is converted to a controlled access facility and
direct access to the main traveled lanes is denied but access is provided by
service road to these lanes, there is no taking of access. Factors such as
circuitry of route in reaching the main traveled lanes caused by the construction
of the project and a diminution of the volume of public travel immediately in
front of the premises are not items of legal damage. This is true also where an
existing rural highway is, in effect, converted to a service road to serve the
newly constructed main traveled lanes even though the property under
investigation is left in a cul-de-sac by reason of a barricade placed at one end
of the existing highway bounding the new construction.
Generally speaking, a landowner is not entitled against the public to unlimited
access to this land at all points in boundary between his land and the highway,
although entire access may not be cut off without compensation. If ingress and
egress are not substantially interfered with, no compensation is allowed. There
are also many other rules which the Department of Transportation may impose
upon access to and use of the highways without payment of compensation.
These include regulation of speed, parking, routing of traffic along one-way
streets, channelization, and moderate regulations upon the number of types of
driveways entering a highway from a specific property, i.e., minimum standards
for commercial entrances adopted by ordinances of the Department of
Transportation. Damages due to the exercise of the "police power" of the State
are not compensable as they are not a taking of private property rights in the
constitutional sense. The major distinguishing feature between the two is that
"eminent domain" involves a taking of property while "police power" is
concerned with the regulation of property to prevent a use detrimental to the
public interest.
5.88
NON-COMPENSABLE DAMAGES - SUMMARY
There are many different types of damages that a landowner may suffer from
the construction of a highway which are generally non-compensable by law.
Therefore, these should not be considered by the appraiser in making his or her
appraisal. Listed below are some of the non-compensable damages frequently
encountered by the appraiser. This list is not intended to be all inclusive, and
the appraiser should consult with the Area Appraiser when in doubt as to what
items should be reflected in the appraisal. Items 1 through 5, while not items of
legal damage, may be considered on the question of whether there are any
benefits to the subject property arising from the construction of the project.
1. Decrease in traffic volume in front of the premises (which might be caused
by moving the main traveled lanes away from a business or by a rerouting
102
diversion of traffic or by one-way streets.
2. Circuitry of travel to achieve access to main traveled lanes or roads.
3. One-way street; median strips which prevent turning; fences; and trees and
shrubbery erected or planted on the right of way by the Department of
Transportation.
4. Lowering or raising the grade of an existing street or highway within the old
right of way where access is not controlled.
5. Cul-de-sac which results when an existing rural highway is dead-ended.
6. Loss of use and occupation of the property caused by the construction of the
project.
7. Personal annoyance due to interference with peaceful living conditions
cause by traffic noise, fumes, and vibrations; however, the appraiser may
consider the use to which the condemnor will put any portion of the subject
property, but not other property obtained by the condemnor, in arriving at
market value of the subject premises after the taking, in so far as concerns
damage to the subject property.
8. Moving expenses including the expense of removal of or relocation of
personal property and trade fixtures; breakage or other injury to such
property caused by removal.
9. Loss of business, good will, or the interruption of business.
10.
5.89
Anticipated losses from intended uses or purposes which the owner has
in mind and all other speculative losses.
HIGHWAY EASEMENTS OUTSIDE THE RIGHT OF WAY
As noted in the NCDOT Real Estate Appraisal Standards and Legal Principles,
"An easement denotes ownership of limited real property rights; thus, falling
short of full fee simple estate ownership. When an easement or servitude over
land is condemned for the public use, the appraisal should be in the amount of
the difference between the fair market value of the land before and the fair
market value immediately after imposition of the easement. Full consideration
shall be given to a due allowance made for the substantial enjoyment and
beneficial ownership remaining to the easement. "An easement outside the
proposed right of way shall not be considered a fee simple taking. An easement is a partial taking of property rights. The degree of servitude controls the
effect of easements. Compensation should not be greater than the adverse
effect of the easement, or the difference in the fair market value of the property
before the taking for the easement and the fair market value of the remainder
subject to the easement. The appraiser and the Area appraiser must have a
103
mutual understanding concerning the property rights affected by the proposed
easement before the assignment is made. There are instances where the
taking for an easement, such as a slope easement, may result in benefits to the
remainder.
5.90
EQUIPMENT AND MACHINERY
The appraiser, staff or fee, shall never be responsible for determining whether
items of equipment are to be considered personal property or real property.
This is a decision to be rendered by the Area Appraiser after reviewing the
Inventory of Equipment provided by the Negotiating agent. The appraiser will
be given FRM5-L and/orFRM5-M, as needed, when the assignment is made.
These forms indicate the decision of the Area Appraiser as to how the items will
be treated within the appraisal report. The appraiser shall complete this form,
placing a copy of same in each copy of the appraisal report. The total
estimated contributing value in place shall be added to the estimated value of
the other improvements. The appraisal report shall be written in such a manner
that the value of any item(s) considered real property can be readily set out or
separated from the total. Although equipment and machinery, or trade fixtures,
are considered a part of the real property, separate ownership may be involved.
If difficulties are encountered during performance of an appraisal assignment,
the appraiser shall direct any inquiries to the Area Appraiser.
5.91
SPECIALIZED EQUIPMENT, MACHINERY, TRADE
FIXTURES AND TIMBER
In the event an appraisal assignment necessitates the valuation of specialized
equipment, machinery, trade fixtures, mineral deposits, or timber, the appraiser
may, at his or her election, employ a specialist or consultant for assistance.
However, the appraiser shall set forth any intention to hire a specialist or
consultant and state the name on the Appraisal Fee Proposal, FRM5-B. The
Appraisal Fee Proposal shall contain the specialist’s fee as part of the appraisal
fee. The Department of Transportation is concerned only with the total
appraiser fee. Caution: The appraiser shall correlate and analyze the
specialist’s opinion and estimate as part of the appraiser’s own opinion and
final estimate of value. The inclusion of any consultant’s estimate by simply
adding it to the appraiser’s estimate, without explanation, shall render the report
unacceptable. The specialist’s or consultant’s report shall be included in the
Addenda of the appraisal report. Item (16) of the Appraisal Contract reads:
"The DEPARTMENT and the Federal Highway Administration shall have the
right to approve or reject any firm or individual that the APPRAISER may
propose as a subcontractor or employee whose services will be employed in
the preparation of the appraisals herein set out."
5.92
STAFF APPRAISAL ASSIGNMENT
104
The staff appraiser will receive his or her work assignment on FRM5-N, Staff
Appraisal Assignment. The provisions of an assignment set forth in this form
shall be met as if it were a contract. The staff appraiser shall apply for any
contract extension in writing whenever he/she is unable to meet the original
terms of the assignment, for any reason. The appraisal of property owned by
Department of Transportation employees shall not be assigned to staff
appraisers but to independent fee appraisers.
At the direction of the Area Appraiser, the staff appraiser may be required to
complete and include a parcel log, FRM5-O, with each appraisal.
5.93
OUTSIDE EMPLOYMENT - GENERAL
Employees of the Department of Transportation may accept outside
employment to be performed in regular off-duty hours, but only where such
employment involves no direct or indirect conflict of interest, and only where
permission for such employment has been granted by the Department.
Application for outside employment and permission by the Department shall be
in writing. Form PO-102, provided for the purpose, shall contain the name of
the secondary employer, the type of work to be performed by the employee,
and the approximate number of weekly working hours, with the stipulation that
the employee may not be called off the regular job during working hours for the
performance of any outside work. The employee is to comply with the
Secondary Employment Policy and Procedures memorandum. See Chapter 1
of this manual for additional information.
5.94
OUTSIDE EMPLOYMENT – APPRAISAL
WORK BY STAFF APPRAISERS
Before accepting any outside employment assignment, the staff appraiser must
ascertain that the property to be appraised will not be affected by any highway
project at the present or in the foreseeable future. No employee of the
Appraisal Section will be permitted to accept assignments from any other
condemning authority or any individual or firm doing business with the
Department of Transportation. It should be thoroughly understood between the
appraiser and the person, firm, or corporation employing his or her services that
the appraiser will NOT be required to testify in court by reason of the appraisal.
Outside employment must not involve the use of any State-owned property of
equipment. It is absolutely forbidden for a staff appraiser to work for any fee
appraiser who performs appraisal work for the Department of Transportation.
5.95
PRELIMINARY PARCEL STUDY
The Preliminary Parcel Study, FRM5-P, is used by the Area Appraiser as a
record of the preliminary inspection of the property to be appraised. It serves to
105
identify the property by a brief physical description of land and improvements to
include legal rights, effects of the highway taking, and a written study of the
appraisal problem. The form is also a record for miscellaneous information,
such as the need for equipment inventories, partial taking of building affidavits,
estimates, and the appraisal premise.
The Area Appraiser uses this form as a record for estimating value of the entire
property and damages or benefits resulting from the taking. Through the use of
the Preliminary Parcel Study form, the Area Appraiser is in a position to further
estimate the time required and fee range for preparing an appraisal
assignment. The Area Appraiser prepares preliminary parcel studies as soon
as right of way plans and appraisal requests are received that will be used in
appraising the project.
5.96
PLANNING FOR ASSIGNMENT OF APPRAISALS
The Central Office furnishes each Area Appraiser a tentative schedule for
future projects in his area. This schedule will indicate the approximate date the
roadway plans will be completed and the anticipated date for letting the project
to contract. Immediately upon receipt of notification that a project or projects
are scheduled, the Area Appraiser should make a preliminary survey of the
work to be done and the personnel that will be required to complete the project
within the time allotted. The Area Appraiser would have already received
authorization to spend funds on the project. At that time, the Area Appraiser
has the option to secure a basic data report (a sales brochure) showing sales
and listings of properties believed to compare favorably with parcels along the
project. Prior to the receipt of the project schedule, the Area Appraiser should
have received preliminary plans; completed a field inspection of the project with
the Division Right of Way Agent. On those parcels estimated to be $25,000 or
less where no damages to the remainder are involved, the Division Right of
Way Agent may prepare a Right of Way Claim Report. No request for an
appraisal from the Negotiating Section will be necessary. This is an optional
procedure previously decided during the field inspection of the project with the
Division Right of Way Agent.
If, because of a shortage of appraisers or for any other reason, it appears that
the schedule cannot be met, the State Appraiser should be notified at once.
The project can then be assigned to another Area Appraiser or additional
personnel can be made available, or the work can be rescheduled. Some
items for consideration in the process of planning for and assigning appraisals
include, but not necessarily limited to the following:
(1) Location of available appraisers with respect to the project,
(2) Qualifications and limitations of the appraisers,
(3) Number and type of properties to be appraised and the time allotted for
106
completion of the work.
It is preferable that appraisers be employed from the area in which a project is
located. Local appraisers will be better known by the public, and their opinion of
value will be more readily accepted by both the property owner and the jury. In
addition, the local appraiser will be more familiar with the values in the area and
should be able to complete the job in a shorter length of time than any outside
appraiser. Less travel time is also required for the local appraiser, thereby,
resulting in savings of time and money.
The qualifications of the available appraisers should be scrutinized carefully, to
the end that the most capable and competent appraisers available are
employed. Some appraisers specialize in or are more qualified by experience
and training to appraise certain types of properties. Some appraisers, because
of lack of proper experience and training, can be depended on for only
relatively simple assignment. Careful attention to the qualifications and
limitations of each appraiser will result in the efficient overall operation. The
number and type of properties to be appraised have a direct bearing on the
number of appraisers required, as well as the time allotted for the completion of
the project. In the case of a completely rural project, for example, the Area
Appraiser should figure on employing appraisers specializing in or best suited
for such work. The time element plays an important role in this phase of the
work and, generally, the more parcels, and the shorter the time schedule, the
greater number of appraisers should be assigned to the project. Too many
appraisers on the same project can be as bad, or worse, than too few, and
extreme care and good judgment must be exercised to see that this situation
does not arise. Consistency in values from parcel to parcel will usually vary
inversely with the number of appraisers on the project. In the process of
assigning appraisals, no distinction shall normally be made between the staff
and fee appraisers, merely because of the fact that one is a full-time salaried
employee of the Department of Transportation, and the other works on a fee
basis. There are exceptions to the foregoing statement which will be dealt with
in subsequent paragraphs.
The percentage of the appraisal workload shared by staff and fee appraisers
depends directly upon the volume of parcels to be appraised. Although
appraisal work is the chief function of staff personnel, they have other duties,
such as making right of way estimates and doing market data research. The
Right of Way Branch has established an on-the-job training program to
maintain and increase proficiency and expertise of the staff appraiser.
In those cases where it appears necessary or desirable to use either a staff or
fee appraiser from a territory normally covered by another Area Appraiser, this
procedure should be cleared with both the State Appraiser and the other
appropriated Area Appraiser. Prior approval must be obtained from the State
Appraiser for the employment of appraisers from outside the State of North
Carolina.
107
5.97
NUMBER OF APPRAISALS
Initially, only one appraisal will be obtained in cases of uncomplicated full
takings or uncomplicated partial takings. Two appraisals may be obtained in
any cases where the nature of the taking and the appraisal problems are
complex. An appraisal made by one individual on alternate premises, as in the
case of service road situation, will be considered as one appraisal.
The number of appraisals for each parcel on Federal-Aid Projects in excess of
the requirements set forth in the preceding paragraph will be obtained
whenever the Federal Highway Administration has requested that the
Department obtain additional appraisals. Additional appraisals may be obtained
when condemnation is imminent or when the first appraisals show a wide
divergence in value. In these situations, the Area Appraiser has reviewed the
appraisal reports on hand, made his attempt to reconcile the divergences, and
is of the opinion that the Department of Transportation is not in an adequate
position to defend its estimate of value. The additional appraisal is obtained in
an effort to support that appraisal report which is believed to more fairly
represent the fair market value of the property.
5.98
PARTIAL TAKING OF BUILDING AFFIDAVIT
During the preliminary field study of the project, the Area Appraiser inspects all
buildings which are located partially within the acquisition. The Area Appraiser
secures the services of an independent fee appraiser who determines whether
or not the economic value or utility of the building/structure will be destroyed.
The Area Appraiser secures the Partial Taking of Building Affidavit, FRM5-Q,
prior to making the assignment. Accordingly, the appraiser rendering the
appraisal report will know in advance of the assignment whether the severed
structure is to be considered as totally taken.
5.99
ESTIMATES FOR COST OF CUTTING OFF BUILDINGS
AT PROPOSED RIGHT OF WAY LINE
When it is necessary to estimate the cost of clearing the portion of a building
from the proposed right of way as a result of cutting off the building, an
estimate is made as follows:
(1)
The total cost for clearing the right of way and refacing the building is
obtained.
(2)
The cost for cutting off the building at the proposed right of way line and
clearing that portion of the building from the new right of way is obtained
as a separate item.
(3)
The cost for shoring up the "cut-off" building and refacing same without
108
including the cost as described in item (2) above is obtained.
The appraiser is to consider only item (3) in the appraisal report. The Area
Appraiser furnishes the Division Right of Way Agent the estimate described in
item (2) above.
5.100
RETENTION VALUE OF TIMBER
The value of timber on the usual parcel will not be determined separately but
will be included in the land value. This will be accomplished by comparing the
subject property with sales of similar properties having a similar stand of timber.
In some cases, it may be necessary or advisable to make a determination of
the value of the timber within the right of way separate from the land, in which
case a current timber cruise should be secured. The timber cruise report is
furnished the Area Appraiser for review and eventual placement in the public
folder at the time the appraisal is approved. The Area Appraiser should write a
cover letter explaining the reason for the timber cruise and how the timber
cruise is incorporated in the appraisal report.
The "retention value of timber" may be defined as the value of the timber within
the right of way as it stands. This value is not necessarily the same as its share
of the total value of all the merchantable timber on the property. The retention
value of timber only concerns all of that merchantable timber lying within the
proposed right of way.
The ratio of logging cost to the value of the timber "on the stump" may be
greater in a straight cutting as opposed to the ratio of logging cost and cutting
of an entire tract. If the property owner is permitted to retain the timber inside
the right of way, he should not be compelled to cut all of the merchantable
timber on the tract. The timber cruiser must bear this factor in mind when
estimating the value of the timber within the taking. The value of the timber
within the right of way is to be deducted from the total appraised damages if the
owner is permitted to retain and cut the timber himself.
This is not intended to imply that a timber cruise should be obtained on all
parcels having merchantable timber thereon. In the case of a tract having a
large amount of merchantable timber and/or where the owner has previously
expressed a desire to retain the timber, a cruise should be ordered initially. If,
during negotiations, the owner requests that he be allowed to retain the timber,
the Negotiator will advise the Area Appraiser so that a cruise can be made.
Timber cruises of the entire tract are sometimes secured to assist the appraiser
in rendering a more accurate appraisal report involving merchantable timber.
The appraiser must compare the subject property with sales of similar
properties having similar stands of timber-the unit of comparison usually being
on an acreage basis. It is not proper appraisal practice to estimate the value of
the land as though cut-over, and then add to this "value of cut-over woodland",
the dollar amount reflected in the timber cruise. An appraisal report submitted
109
to the Area Appraiser in this fashion in not acceptable. The responsibility for
determining the necessity of obtaining a timber cruise shall rest with the Area
Appraiser. In unusual cases, instructions and advice should be sought from the
Central Office. In the event of lawsuits involving lands with merchantable
timber, the advice of the Attorney General’s office should be obtained.
5.101
APPRAISAL OF ADVERTISING SIGNS
Advertising signs may or may not be appraised depending upon whether each
sign involved is considered personalty or realty. Outdoor advertising signs
referred to as "Billboards" are, as a general rule, placed on the property of
others by virtue of an agreement or lease. Reference is made to Section 9.01
for the procedure to follow in the disposition of billboards. The method of
valuation for outdoor advertising signs being purchased under the Federal
Highway Beautification Act of 1965 and the State Outdoor Advertising Control
Act is explained under Section 17.08 of this manual. Signs not classified as
billboards are usually on premise signs which are classified as realty or
personalty depending on condition and as to whether the sign can be legally
moved without substantial modification. Signs that can be moved are usually
classified as personalty and not appraised. Signs that can’t be moved are
usually classified as realty and appraised.
Of the acceptable methods of appraising, the preferred method of valuing the
fair market value of the sign structure is the cost approach or the "reproduction
cost new less depreciation" approach. In the event the income approach to
valuing a sign is deemed most appropriate for use in determining fair market
value of a sign structure, only the reasonable net rental income attributable
solely to that structure, with no consideration given for business operation
expenses or income, should be capitalized. The method of valuing a sign using
a gross income multiplier is not considered acceptable since it involves such
items as business operation expenses and income, advertising contracts and
revenues, and permits and licenses.
5.102
REVIEW OF APPRAISALS
All appraisals on each parcel to be acquired for right of way purposes must be
reviewed. Each appraisal must be reviewed for mathematical accuracy,
conformance with the NCDOT Real Estate Standards and Legal Principles, and
soundness of reason and logic as related to fair market value. The nature and
extent of this review will necessarily vary from parcel-to-parcel according to the
individual situation. The Reviewing Appraiser is expected to fit the review to
the particular project or property under consideration. The Department
presently has an adequate number of appraisers with authority as reviewers
- the State Appraiser in the Central Office, the five Area Appraisers, and
currently two to five Reviewing Appraisers in each of the five field offices.
Reviewing appraisers establish the amount of damages for negotiations by
110
approving or adjusting appraisals. Reviewing Appraisers are selected from the
most qualified appraisers within the organization. Properly qualified individuals
from outside the organization may be employed to furnish advice and
consultation in the review of unique properties. Certain minimum qualifications
must be met in either case. An effort is made to select the most competent
people with proven ability as appraisers, possessing sound judgment as to
values, having a thorough knowledge of the fundamentals of appraising, and
those who possess a complete understanding of highway procedures and
policies.
Consideration is also given to the administrative ability of the Area Appraiser
since it is his responsibility to supervise the work of both fee and staff
appraisers in this particular area of the state and to see that the work in his
area progresses according to appraisal schedules. In the event that an Area
Appraiser is not available, the most qualified Reviewing Appraiser may be
selected on an "acting" basis until such time that he can meet the minimum
qualifications, he may be appointed to the position permanently by the
Manager of Right of Way Branch upon recommendation of the State
Appraiser.
Reviewing procedures are consistent throughout the State. The Reviewing
Appraiser studies the appraisal report in the office, checking the report for
format and mathematics. He or she makes a field inspection of the property
and all sales listed as comparable in the appraisal report. If the appraisal
report, in the Reviewer’s judgment, is representative of fair market value it is
approved, or recommended for approval, for use in negotiating settlement of
the claim. If the report requires correction due to erroneous information,
mathematical errors, poor appraisal practices, or poor judgment, a letter is
written to the fee or staff appraiser setting forth the items adjudged to be in
error. After correction by the appraiser the report is resubmitted electronically
and labeled Corrected Appraisal Report, and the review is completed by the
Reviewer.
The Reviewing Appraiser completes a Review Summary, FRM 5-R, or a review
letter, on each appraisal report secured for right of way acquisition. He or she
sets out the reasoning in estimating fair market value of the property appraised
as he or she approves or adjusts the appraisal report. The Reviewing
Appraiser (Appraiser II) has the authority to approve appraisals to establish
compensation not in excess of $400,000 on all types of real property. All
appraisals showing compensation in excess of the above limitations are
reviewed and then forwarded to the Area Appraiser along with the Review
Appraiser’s recommendations. The Area Appraiser then conducts a review
and handles accordingly. All appraisals showing compensation in excess of
$750,000 are referred to the State Appraiser for approval, along with the written
recommendation of the Area Appraiser. Such appraisal reports are reviewed in
the field by the Reviewing Appraiser with reviews conducted by the Area
Appraiser and by the State Appraiser. The State Appraiser has the authority to
approve, adjust, or reject any appraisal report secured for highway purposes.
111
Where unusual or complicated appraisal problems exist (either below or above
the limits of authority for approval), the Reviewing Appraiser may refer such
problems to a higher official if such action is deemed to be appropriate.
Upon breakdown of negotiations based on appraisal reports secured for
acquisition purposes, or when condemnation proceedings are instituted on a
project, and upon the request of the State Right of Way Appraiser or of
counsel, additional appraisals may be obtained for further study or for trial
purposes. The Appraisals may be less documented for evidential purposes.
They are obtained by the Area Appraiser in the usual manner upon receipt of a
written request from the State Appraiser. The same review procedures as
outlined above are performed with these appraisal reports. They are
forwarded to the State Appraiser with a written letter of review, which outlines
the Reviewing Appraiser’s opinion of fair market value as related to the
additional appraisals. Based upon additional value information, any time prior
to settlement, the Reviewing Appraiser may adjust his estimate of damages.
Those appraisal reports secured specifically for condemnation proceedings
are forwarded to the Trial Attorney assigned by the Attorney General’s office to
handle the case. Assistance is given by all Reviewing Appraisers when
requested by the staff of the Attorney General’s office in their preparation for
the trial of condemnation cases.
5.103
REVIEW CERTIFICATION
After appraisals have been reviewed the Reviewing Appraiser prepares FRM5S, Review Certification and Allocation of Damages, with his or her signature
and seal affixed, converts it to PDF and attaches a copy to the front of the
approved appraisal which is also converted to PDF. If the remainder, or any
portion thereof, is considered an uneconomic remnant by the Reviewing
Appraiser, he or she will so indicate by stating yes to the question
"uneconomic remnant factor" which appears under the date of the certification.
If more than one remainder exists the review appraiser should specify which
remainder(s) are classified as uneconomic.
5.104
DISTRIBUTION OF APPRAISALS
Approved Appraisals with Review Certifications and Review Summary or
Review Letters are then placed in the proper project file in the public folder
on the shared drive (S drive). A transmittal is prepared and emailed to the
State Appraiser and Area Appraiser, with copies to the appropriate Division
Agent, Area Negotiator, and Attorney if applicable, notifying all parties that
the approved appraisal and supporting review documentation is available on
the shared drive. The Right of Way Agent should not have access to any
unapproved appraisals. Copies of the approved appraisal and all
unapproved appraisals will be retained in the Private folder of each Area
Appraisal office on the shared drive, S Drive. These will be available for
112
review by authorized representatives of the Right of Way Branch, and
attorneys with the Attorney’s General, and the Federal Highway
Administration.
Upon notification by the Division Right of Way Agent that the claim has been
CLOSED, the Area Appraisal office will destroy all paper records of the claim
while retaining electronic data as previously stored.
5.105
COOPERATION WITH NEGOTIATORS IN
EXPLAINING APPRAISALS
In most cases, if the appraisal report is properly written, the negotiator should
be able to read and understand the report without assistance from the
appraiser. In those instances where questions arise about the appraisal, the
Area Appraiser will be expected to take whatever action appears appropriate to
clarify the negotiator’s questions. This action might take the form of verbal
explanation, further review of the appraisals, additional appraisals, etc. The
request for assistance is handled through the Area Negotiator.
In unusual cases, it may be advisable for the Area Appraiser to arrange a
conference with the negotiator at the time he turns the appraisal over for
negotiation. Such a conference might be for the purpose of explaining
something unusual about the appraisal or something that might be of particular
benefit during negotiations.
5.106
REEVALUATION OF APPRAISALS BASED ON
NEGOTIATION DEVELOPMENTS
Occasionally, during the negotiation phase, circumstances will be brought to
light which will warrant revision or further study of all or some of the appraisals.
Such circumstances might consist of additional sales not known to the
appraiser, incorrect property lines or other basic information, changes in
zoning, etc. In such instances, the Area Appraiser will be expected to take
whatever action is required to put the appraisals on the proper basis. In some
cases, a very low settlement ratio may be sufficient grounds for further review
of the appraisals or ordering additional appraisals.
5.107
REEVALUATION OF APPRAISALS AND SECURING
APPRAISALS FOR FURTHER STUDY
If negotiations based upon the approved appraisal are unsuccessful, the State
Negotiator may request a further study of appraisal reports. This request is
channeled through the office of the State Appraiser who advises the Area
Appraiser to further study the existing appraisals, make a reevaluation, or
secure additional appraisal(s). The Area Appraiser has the authority to secure
113
an additional appraisal, or appraisals, if deemed necessary. At this phase it is
not essential to secure the narrative type report based step-by-step on the
NCDOT Real Estate Appraisal Standards and Legal Principles. It is imperative
that local appraisers (if available) be employed since this phase is a step
toward preparation for condemnation, if necessary. Generally, the Area
Appraiser will be given a completion date for such assignments and upon
completion, these appraisal reports are reviewed. If an adjustment of an
existing appraisal or if an additional appraisal for further study represents the
fair market value of the property before and after the taking the original
approval is superseded and voided by the Reviewing Appraiser. Upon approval
of the further study appraisal it is to be placed in the proper project file in the
public folder on the shared drive (S drive) along with all supporting review
documentation. A transmittal is once again prepared and emailed to the State
Appraiser and Area Appraiser with copies to the appropriate Division Agent and
Area Negotiator notifying all parties that the approved appraisal and supporting
review documentation is available on the shared drive.
5.108
REEVALUATION OF APPRAISALS DURING
CONDEMNATION PHASESECURING ADDITIONAL
APPRAISALS FOR COURT PURPOSES
Immediately after a Declaration of Taking and Complaint is filed, the Area
Appraiser will promptly request those appraisers who have previously
appraised the subject properties to re-inspect those properties in order that
their evaluation date will coincide with the date of taking, and to revise their
reports, if in their judgment, there is a significant time lapse or a physical or
economic change since the date of appraisal.
If the Area Appraiser is of the opinion that additional appraisals are
necessary, he is to proceed immediately to obtain such appraisals from local
appraisers. The appraisal reports are reviewed and a review letter is
prepared recommending or approving an appraisal and voiding and
superseding the prior recommended appraisals. The review letter should
show the number of appraisals reviewed, the name of the appraiser and date
of the appraisals, the before values, the after values, the difference between
the before and after values and the date each appraisal was approved. The
same process for handling acquisition appraisals is followed. All proper
parties as well as the Attorney General’s Office are then notified via email of
the transmittal.
This procedure constitutes sufficient notice to the Area Appraiser to have the
required appraisals made prior to any buildings being demolished or prior to
any work being done on the property. The Area Appraiser is also advised when
the property owner files an answer. It will frequently be necessary to revise or
obtain new appraisals during the condemnation phase due to changes in areas
disclosed by the property survey map or changes in the legal basis upon which
the appraisal is made. If such changes render a significant difference for the
114
basis upon which the values are reported by the appraisers, then revised
appraisals must be secured as early as possible. At times, such revisions may
result in settlement of the claim.
5.109
PRE-TRIAL CONFERENCE AND COURT TRIAL
The Area Appraiser is expected to work closely with the Trial Attorney with
respect to the selection and employment of the witnesses necessary to properly
present the case. Normally, the witness will be employed by the Area
Appraiser and such services covered by contract in the usual manner. The
determination of who to employ, how many witness will be required, and the
basis upon which the appraisal is to be made is generally the responsibility of
the Trial Attorney with the support of the Area Appraiser.
The Area Appraiser assists the Trial Attorney in pre-trial conferences and, in
unusual cases, may even attend the actual trial, if requested to do so by the
Trial Attorney. Actual attendance in court should be held to a minimum
because of the volume of other work and should only be at the request of Trial
Attorney.
5.110
RIGHT OF WAY ESTIMATES FOR PROGRAMMING
LOCATION, DESIGN, AND UPDATING THE
TRANSPORTATION IMPROVEMENT PROGRAM
Frequently the Area Appraiser is asked to prepare right of way cost estimates
for various purposes. The estimates should be made either by or under the
supervision of the Area Appraiser. Senior Staff Appraisers, Reviewing
Appraisers or Area Appraisers are those who will generally make the right of
way cost estimates. Specific instructions regarding the work to be done are
furnished to the Area Appraiser along with the request for the estimate.
All requests for right of way cost estimates are referred to a staff assistant of
the Administrative Section of the Right of Way Branch, who is responsible for
the coordination of right of way estimates to include right of way costs,
relocation costs (houses, businesses, graves), utility costs and acquisition costs
(appraisal), negotiations, legal, etc.)
The right of way cost estimates are submitted to the Central Office on a form
entitled REQUEST FOR R/W COST ESTIMATE which identifies the project and
gives the estimated number of residential relocatees, business relocatees,
costs of land and damages, as well as the estimated total number of claims.
Figures for utility costs, relocation costs and acquisition costs will be added in
the Raleigh Central Office. The form is designed for recording the cost
estimate in specific sections or premises. The project description and special
instructions are also recorded on the form. It is imperative that the estimate
115
show the type of plans furnished for its preparation.
Obviously, the accuracy of the estimate is directly related to the details of the
available design data. All prior estimates of land and damages with the dates
of those estimates should be given. This information is given in order that an
explanation may be given for the increases or decreases and the cost figure of
the current estimate as related to prior estimates. The explanation should be
complete and detailed. Simple statements such as time adjustment, market is
increasing, or more sophisticated design data are not sufficient explanation.
Each right of way estimate is a total of the estimated damages to each
parcel on the project.
The advantages of the parcel-by-parcel method of estimating right of way costs
are twofold: the estimated number of parcels involved by the project can be
given, and separate estimates can be given for sections of the project.
Right of way cost estimates are prepared for the Transportation Improvement
Program. The estimates are updated upon request by the Raleigh Central
Office for the purpose of giving the estimated right of way cost for projects
included in the TIP that are expected to be scheduled during a nine-year
period. The estimates reflect the amounts expected to be expended on those
projects listed in the TIP.
These estimates are based on the most recent design data which will vary from
completed right of way plans to simply a line on a county map. Where sufficient
data is not available to render an accurate estimate, it will be necessary to
obtain at least a typical section of the project and copies of the tax maps
relating to the location of the project. The estimator must have a concept of the
effects of the project on the individual parcels included in the estimate. On
those requests for right of way estimates for the TIP where right of way has
already been completed, the estimator will so indicate by stating on the request
"this project is completed", and return the request to the Central Office.
All estimates for the Transportation Improvement Program are to be
coordinated through a Staff Assistant of the Administrative Section of the Right
of Way Branch in the Central Office.
5.111
JUSTIFICATION OF SERVICE ROADS BY SERVICE
ROAD ECONOMIC STUDY
As soon as possible and upon receipt of plans for a project, the Area Appraiser
should make a preliminary field inspection of the project together with the Area
Negotiator and/ or Division Right of Way Agent to determine where service
roads may be required in order to mitigate property damages. It is imperative
that this be done promptly so that sufficient time will be allowed for the
preparation of the plans, estimates, and appraisals necessary to determine
what service roads are justified economically. Obvious service roads not
116
requiring an economic study should already be included on the highway plans.
5.112
CLOSURE ROADS
A closure road is a section of road that is constructed for the purpose of
restoring the circulation of traffic to an existing road that would otherwise be
severed by the project. Justification for the construction of closure roads will be
based on traffic needs and seldom will be a matter of determination by the
Appraisal Section.
5.113
SERVICE ROADS JUSTIFIED BY ESTIMATES
Upon receipt of preliminary plans on controlled access projects, a field
inspection is made by the Division Right of Way Agent and the Area Appraiser
for the purpose, among others, of preparing a preliminary service road study.
The field inspection will reveal certain instances where the necessity for service
road will be obvious from an economic standpoint and are not shown on the
preliminary plans. In all such cases, the Area Appraiser should immediately
forward a report to the State Appraiser requesting that preliminary service road
design(s) and construction estimate(s) be prepared so that further
consideration may be given to the possibility of including the service road(s) in
the roadway plans. The study gives a brief description of those parcels
affected. Where a saving in right of way costs is believed to exist, a description
of the proposed locations of each service road between approximate survey
stations right and left is given. These proposed locations are plotted roughly on
a section of the plans or cutout of the strip map.
The State Appraiser obtains from the Roadway Design Engineer the
construction cost estimates and sketches (or minimum designs) which
adequately show the locations of the proposed service roads and the area
necessary for the additional right of way. The sketches are then forwarded to
the Area Appraiser for his use in rendering a right of way cost estimate for
each service road. The areas for the location of the service road right of way
are computed from the sketches, and the estimates are made on a parcel-byparcel basis setting out the unit values of all properties affected by using the
Service Road Study - Parcel Worksheet, FRM5-U. The estimates show the
right of way costs for each affected parcel with and without the service road. It
sets out the value of the part taken and damages to remainder. The savings in
right of way cost is the difference between the estimated before and after
values of each parcel-with and without the service road as designed.
The Area Appraiser must have available sufficient market data to support his
estimates. The service road study estimate is then forwarded to the State
Appraiser who computes the net saving by subtracting the estimated
construction cost from the estimated saving in right of way cost for each road.
The State Appraiser then submits the service road study prepared by the Area
117
Appraiser with a cover letter showing the net saving that will be realized by
construction of the proposed service road directly to the Roadway Design
Engineer, with the recommendation that the service roads be approved and
included in the roadway plans for the project if justified economically.
In those cases where the construction estimate exceeds the saving in right of
way cost, no further consideration based on right of way estimates is given for
constructing a service road since the service road was not justified
economically.
5.114
SERVICE ROADS JUSTIFIED BY APPRAISALS
Where a preliminary field inspection indicates the advisability of giving
consideration to the construction of service roads whenever the justification is
not obvious, the procedure shall be precisely the same, except that appraisals
will be made on different premises for each parcel with and without service
road, instead of using estimates.
118
Chapter 6 TITLE INVESTIGATIONS
6.01 CERTIFICATES OF TITLE - WHERE REQUIRED
Certificates of title shall be obtained in all of the following instances:
1. Where the total consideration to be paid, or donated, for any acquisition or
claim reflects damages in the amount of $25,000.00 or more. This
includes building moving costs, whether paid to the owner or to a
contractor by the Department.
2. On all total acquisitions where fee simple title is to be taken, whether by
purchase or by donation and on partial acquisition where a significant
portion of the value of the total property is acquired.
3. On all acquisitions for right of way exceeding $25,000.00 for interstate and
other controlled access projects.
4. On all acquisitions reaching condemnation status.
5. On acquisitions amounting to less than $25,000.00 where the Right of
Way Agent has reason to believe that one or more of the following
conditions exist:
(a) there is some irregularity in title;
(b) there is a question of ownership;
(c) it is necessary to determine accurately the location of property lines;
(d) where the acquisition represents the greater part of the value of the
entire property and there may be outstanding liens and encumbrances
against the property.
6. For all leases of material pits involving a consideration of $25,000.00 or
more.
6.02 CERTIFICATES OF TITLE - FROM WHOM AND HOW
OBTAINED
On all claims, the Right of Way Agent should carefully question property owners
during his/her initial contact with them about their ownership of the property and
the existence of leases, deeds of trust, mortgages, etc. In addition, the Agent
119
shall verify the ownership and conditions of ownership through an investigation of
the title from the courthouse records especially on those claims of less than
$25,000 where no certificate of title may be secured. Records in the Register of
Deeds Office and the Office of the Clerk of Court should be searched to confirm
ownership of the land and to establish if any mortgages, deeds of trusts,
bankruptcy proceedings, judgments, tax liens, civil actions or other liens affect
the property from which right of way is being acquired. FRM4-H shall be
completely filled out to assist in the preparation of a Preliminary Report of Title by
an abstracting attorney.
On those claims of $25,000 or less where a certificate of title will not be
secured, FRM4-H as completed by the Right of Way Agent, will serve as a
title abstract for the property involved.
Certificates of title are obtained through the Attorney General’s Office, Highway
Division. The Division Right of Way Agent will forward FRM6-A to the Deputy
Attorney General, Highway Division, requesting a title opinion on each claim
where one is required. The Agent will attach a completed FRM4-H to the request
form and will specify the date the title opinion is needed, show the estimated
damages for the claim and specify to whom the completed title opinion should be
mailed. Requests for title opinions which contain incorrect or illegible information
will be returned to the Agent and a new submittal will be required. The Attorney
General’s Office will assign the title opinion to a local associate attorney. The
FRM6-A and FRM4-H shall be saved on the S (groups drive) in the
divison/tip/county/parcel/requests folder.
The Agent shall request required titles promptly in order to meet letting
schedules. On projects with tight schedules, the attorney who has the title
assignment may be contacted to see if he/she can meet the specified due date.
The Agent should allow a time factor between the time the title opinion is
requested and the time the Attorney General’s Office assigns same in deriving a
due date for the title opinion. If there is more than one parcel having the same
ownership out of the same parent tract, it should be considered as one parcel for
the purpose of title assignment even though it may be divided for appraisal
purposes. Also, if there are parcels in different ownership which come from the
same parent or common tract or if there are other unique characteristics which
would make it practical to assign the group of title requests to the same attorney,
the Agent should staple these requests together, attaching a note to the front of
each group and forwarding same to the Deputy Attorney General requesting that
the group be assigned to the same attorney. The assignment of title requests in
groups would be applicable in the instance of lots originating out of the same
subdivision.
120
A copy of the Attorney General’s letter to the selected abstracting attorney
requesting a title opinion (FRM6-B) will be forwarded to the Division Right of Way
office. The Division RW Office will maintain a log of the due dates of the
requests and will advise the Project Agent & Division RW Agent when a title
opinion has not been received on the due date. The Project Agent will promptly
check with the abstracting attorney to determine the cause of the delay. In the
event the abstracting attorney should have trouble identifying a property or have
any other difficulties in regard to the title opinion, the Agent should furnish such
assistance as may be needed. The Agent is not to construe this section as
authorizing him to employ local attorneys for title work since selection and
assignment of local attorneys is solely in the discretion of the Attorney General’s
Office. In some instances, the Agent may be requested by the Raleigh Office to
instruct a local attorney to handle a special proceeding where minors or
incompetents are involved in the settlement of a claim. This should only be done
on instructions from the Raleigh office.
When the Agent experiences difficulties or delays in securing the title opinions by
the dates needed, he/she should first enlist the help of the Division R/W Agent or
Area Negotiator in obtaining the title opinions. Title assignments should be
carefully monitored and should not hold up the processing of final reports. If the
project schedule will be jeopardized by a delayed title and it is apparent from
contacts with the abstracting attorney that the title opinion is not forthcoming, the
Division Agent should request, through the Assistant State Negotiator, that the
Deputy Attorney General reassign the title opinion to another attorney in order to
maintain the project schedule.
Any requests for legal opinions from the Attorney General’s Office regarding
information furnished in the title opinions shall be directed to the State Negotiator
or Assistant State Negotiator for referral to the Attorney General’s Office.
In the event a claim is settled prior to a title opinion being assigned or received
by the Division Right of Way Agent on claims less than $25,000, the request for
the title opinion may be canceled to prevent an unnecessary expenditure. Any
cancellation with an abstracting attorney will be confirmed in writing with a copy
of the correspondence being sent to the Attorney General’s Office to advise them
of the cancellation. The abstracting attorney would be entitled to payment for
any work or services performed up to that point, if any, and should be advised
accordingly. If the certificate of title has been completed or is near completion,
the abstracting attorney should submit the certificate of title since full payment of
services would be expected. He/she then could be advised in writing that no
further services such as closing would be needed and a bill for services completed should be submitted.
6.03 FORM OF CERTIFICATE
121
The Deputy Attorney General, Highway Division will supply the abstracting
attorney with his letter of assignment (FRM6-B) and one copy of the preliminary
certificate form (FRM6-C),
The original of the completed FRM6-C is to be furnished to the Division Right of
Way Agent by the abstracting attorney. The FRM6-C should be logged in, and
given to the R/W Agent. The Agent should examine it for completeness,
particularly as to the names and addresses (no post office boxes, only street
addresses) to be shown on page 4 of the form. Should the abstracting attorney
have difficulty in providing these names and addresses, the Agent should give
his full assistance in this respect, since lack of this information could cause
considerable delay and cost in filing condemnations by necessitating the service
of summons by publication. The agent should carefully examine the certificate to
satisfy himself that the property described in the certificate fully covers the
property involved in the specific parcel for which the title certificate was
requested. Where trustees for an institution are shown in a certificate of title, the
Agent should check with the institution to determine if any changes have been
made in this respect. If correct, the signed FRM6-C is to be scanned into the S
(groups) drive final report folder for the particular parcel.
For claims in condemnation, Preliminary Title Reports should be not older than 4
months. If the report is older than four months, it will be necessary for the R/W
Agent to obtain an update from the attorney. The update may be in the form of a
letter from the attorney and it may be attached to the front of the original FRM6C. If the claim is settled, and the report is older than 4 months, it is not
necessary to obtain an update since the attorney will update prior to recording.
The Agent should place a note inn the remarks section of the FRM12-A that the
title to be updated at closing.
6.04 FINAL CERTIFICATE
A Final opinion of title is required on all condemned claims and all claims closed
by the abstracting attorney. When a claim is to be closed by the attorney, the
Division R/W Agent will include FRM6-D with the instruments, warrants, and
other documents. One copy of the completed FRM6-D will be returned to the
Right of Way Agent upon closure of the claim by the attorney. In the event a
condemnation suit is instituted, the Deputy Attorney General will request the final
certificate. In those cases where an acquisition was eliminated after delivery of
the preliminary certificate or where the final certificate is expressly waived by the
Attorney General’s Office or Division Right of Way Agent, no final certificate will
be required.
122
6.05 PAYMENT FOR TITLE SERVICES
The abstracting attorney will be instructed by the Deputy Attorney General to
submit to the Division Agent with each certificate an itemized statement, FRM6-E
for services rendered. Generally, the statement will not be paid until the
transaction is closed, if by negotiation, or until complaint and declaration of taking
are filed, if by condemnation. If due to unusual delay in negotiation or filing, it
becomes necessary to recommend payment prior to submitting a final report or
filing declaration of taking, the attorney’s statement should be submitted to the
Raleigh office. A copy of the FRM6-C or work performed to date should be
attached to the statement at time payment is recommended. The FRM6-C, if
received, should be placed in the s (groups) drive in the final report folder with a
note placed on the bottom of the first sheet as follows:
"Statement from Attorney (name) in the amount of $_____________ forwarded to Deputy Attorney General, Highway Division for payment on (date)"
It is imperative that the Agent state in his letter of transmittal the amount of the
appraised damage to the property involved. Under no circumstances should the
Agent negotiate with the attorney as to the amount of his fee, as this is solely the
prerogative of the Attorney General’s Office.
6.06 MOBILE HOMES CONSIDERED AS REALTY - TITLE
It may be necessary to consider a mobile home as realty in connection with a
right of way claim. An example would be a mobile home where the wheels and
axles are removed, and the mobile home is placed on a substantial permanent
type foundation or a mobile home with frame room additions. The Area
Appraiser, Division Right of Way Agent and the Area Negotiator should carefully
examine a mobile home of this nature and when they jointly decide that same
should be considered as realty, the Negotiator should immediately make the
initial contact and request the appraisal. At the same time, the State Negotiator
should be notified, in writing, by the Division Right of Way Agent so that the title
registration for the mobile home can be checked with the Department of Motor
Vehicles in Raleigh to ascertain that the title has been registered in North
Carolina for a period of at least four months and as to whether any outstanding
liens or encumbrances appear on the title. The Division Right of Way Agent
should furnish the State Negotiator the vehicle registration number or numbers
which will appear on the tongue or frame of the mobile home. Doublewide
mobile homes will have two vehicle registration numbers, one on each frame or
tongue. When the Negotiator submits the Appraisal Summary Sheet to the Area
Appraiser, it should be noted under ’Improvements Taken’ that the mobile home
123
is to be considered as realty. The information that a mobile home should be
considered as realty is also to be contained in the letter to the Deputy Attorney
General at the time a Preliminary Certificate of Title is requested. This is
necessary so the title attorney can adequately search for all liens and
encumbrances. Appraisal requests are to be submitted in accordance with
Chapter 4 of the Right of Way Manual and the purchase of mobile homes
considered as realty is also discussed in Chapter 14 of the Right of Way Manual.
A good reference in understanding titles to mobile homes is "Real Estate
Bulletin" - Volume 23 - #3, Fall 1992. Copies can be obtained through the North
Carolina Real Estate Commission.
124
Chapter 7 INSTRUMENTS OF CONVEYANCE
7.01 PREPARATION OF INSTRUMENTS OF CONVEYANCE
All right of way acquisitions are to be conveyed to the Department of
Transportation by use of instruments in accordance with the
following paragraphs of this section.
7.02 DEED AND EASEMENT FORMS
All instruments of conveyance should be prepared by the Right of Way
Agent who is negotiating project claims with property owners. Other
agents may assist in this task. The preparation of the instruments, with
the exception of entering the amount of the consideration, is to be prior
to the offer of just compensation to property owners. North Carolina
Statutes authorize Right of Way Agents, as employees of the
Department of Transportation, to draw or draft instruments of
conveyance and to sign the instrument, preferably on the first
page, as being drawn or prepared by him/her. Persons, other than
attorneys, who are not employees of the Department of
Transportation cannot legally draft or prepare instruments of
conveyance on behalf of the Department. The signature of the
agent or person checking for accuracy and completeness should
also be shown on the page with the Agent who prepared the
instrument. The amount of the consideration will be inserted in the
instrument once a settlement is reached. Secondary road right of way
agreements will be checked by the Division Right of Way Agent or the
Senior Right of Way Agent. Signatures should be penned in black ink
Care must be taken to insure the instruments are prepared and
completed neatly and accurately.
G.S. 161-14.2 requires that the name(s) of the signing parities be
typed or printed legibly beneath their signature on instruments or
documents filed with the Register of Deeds and the names in the
instrument’s heading must match the names notarized and typed
underneath the signature. As these instruments constitute a public
transaction, the full consideration should be recited in the instrument,
rather than reporting the consideration to be “Ten Dollars and other
Valuable Considerations” as contained in many non-departmental
transactions. If the grantor refuses to execute an instrument reciting
the full consideration, it is permissible to defer to his/her and use such
a phrase rather than jeopardize a settlement.
125
G.S. 47-2 requires that all right of way deeds, easements, and other instruments
of conveyance be duly recorded. Appropriate notary forms must be inserted on
the instrument See Chapter 8, Execution and Acknowledgement of Instruments,
for the various examples of executing and notarizing instruments.
While the department has a specific form for each type of area being acquired, it
is preferred to combine areas into a single instrument where possible. This
practice will save recording costs and simplify the settlement and closing
process.
Generally, if permanent right of way and/or control of access are being acquired,
that instrument will be used and any other needed easements and their clauses
will be added to the instrument.
If only a temporary easement is being acquired, that instrument will be used.
If no permanent right of way and/or control of access is being acquired, but some
combination of permanent easements and temporary easements are being
acquired, the Agent should select one of the permanent easement instruments to
use, and add any other needed easements and their clauses to the instrument. If
there are multiple areas of the same type of easement, each area should names
and only one clause at the end of the areas is needed. For example, say a
permanent right of way, 2 separate permanent drainage easements and a
Drainage/Utility Easement are being acquired on one parcel Then FRM7-A
would be used with the r/w described on page one and the two pde areas and
the due would be placed following the paragraph "IN ADDITION as follows:
Permanent Drainage Easement – Area 1
(description)
Permanent Drainage Easement – Area 2
(description)
PDE clause
Drainage/Utility Easement
(description)
DUE clause
On, the plans, NO temporary easement should be inside of a permanent
easement or permanent right of way. And, all permanent easement forms are
set up so that they allow for slopes within the permanent easement.
In situations where a permanent drainage easement and an Aerial utility
126
Easement or Permanent Utility Easement overlap each other on the plans, the
plans should be revised to covert the overlapping area to a Drainage/Utility
Easement (DUE).
When describing an area, a Cadd generated metes and bounds description is
preferred. Description may also be crafted using stations and distances shown
on the project plans. In some cases, temporary easement descriptions may be
crafted using a maximum width as described below. However, the maximum
width method may not be used to describe right of way or permanent easements.
In situations with multiple areas
The following instruments of conveyance forms shall be appropriately used in
right of way transactions:
7.03 FRM7-A (Fee Simple Right of Way with No C/A)
FRM7-A is a Fee Simple Deed to be used to acquire right of way not subject to
any Control of Access. The right of way being acquired should be described;
preferably using Cadd generated description supplied by the Cadd Unit.
If easement areas are being acquired in addition to fee simple right of way,
descriptions for these easement areas, such as permanent or temporary
drainage easements, temporary construction easements, and Utility easements
are to be placed following the paragraph "IN ADDITION, and for the aforestated
consideration, the GRANTORS further hereby convey to the DEPARTMENT, its
successors and assigns the following described areas and interests:" The name
of the easement should be followed by the cadd description and appropriate
easement clause – see examples below. All clauses are located in the Chapter 7
forms.
If no easements are being acquired, the notation of 'None' or 'N/A' should be
placed in the "IN ADDITION…" paragraph.
Special and/or limiting provisions, such as driveway clauses, distribution of
consideration being paid, etc. shall be placed in the "SPECIAL PROVISIONS:"
paragraph.
7.04 FRM7-B (All ACQUISITIONS OF C/A BY DEED)
FRM7-B is a Fee Simple Deed to be used on all parcels that are subject to any
127
type of Control of Access. The right of way being acquired should be described;
preferably using Cadd generated description supplied by the Cadd Unit. If no
right of way is being acquired, but control of access is being imposed, the
following clause should be placed where the description would typically go:
No physical area is being acquired. Access is controlled by the Department of
Transportation as is indicated by control-of-access C/A lines on the Master Plans
for Department of Transportation Project _____________, WBS#____________,
________________County, on file in the Right of Way Branch of the Department
of Transportation in Raleigh, and which are or will be recorded in the Register of
Deeds of ______________ County, and there will be no access to, from or
across the control-of-access (C/A) lines to the main traffic lanes, ramps, or
approaches from property abutting said highway right of way unless provided
below.
If easement areas are being acquired in addition to fee simple right of way,
descriptions for these easement areas, such as permanent or temporary
drainage easements, temporary construction easements, and Utility easements
are to be placed following the paragraph "IN ADDITION, and for the aforestated
consideration, the GRANTORS further hereby convey to the DEPARTMENT, its
successors and assigns the following described areas and interests:" The name
of the easement should be followed by the cadd description and appropriate
easement clause – see examples below. All clauses are located in the Chapter 7
forms.
If no easements are being acquired, the notation of 'None' or 'N/A' should be
placed in the "IN ADDITION…" paragraph.
Special and/or limiting provisions, such as driveway clauses, distribution of
consideration being paid, etc. shall be placed in the "SPECIAL PROVISIONS:"
paragraph.
In order to delineate the appropriate means of access control, one of the
following provisions must be inserted in the access control paragraph in the deed
form:
1. Full Control of Access - Insert “No means of access to the project is
provided.”
2. Access by service road or frontage road - Insert “By means of a service
frontage road which is designated __________ on said plans and is
located between Survey Station __________ and Survey Station
__________ on Survey Line _____.”
3. Access by specific access point - Insert “By means of a specific access
128
point __________feet in width which is located (left/right) of and between
Survey Station __________ and Survey Station __________ on Survey
Line _____.”
4. Access on Y Lines - Insert “By means of a local traffic road which is
designated as (identify - SR No., NC or US Highway No., or city street)
which is located (left/right) of and between Survey Station __________
and Survey Station __________ on Survey Line _____.”
The foregoing provisions may not suffice in every instance i.e., if more than one
access point or survey line is involved the provisions would have to be revised
accordingly. The Agent should follow the format set forth in these provisions as
closely as possible when modifications are made and must insure that access
points are properly identified. In addition, there may be some situations where
further clarification in the instrument of the areas subject to control of access and
access points is needed. The Agent should seek assistance from the Division
R/W Agent in these situations.
If a local road or street that provided access to property in the before condition,
especially one which might adjoin or is adjacent to a property line, is being deadended at the C/A line, a statement should be inserted stating that the road or
street is being dead-ended and there will be no access to the project by virtue of
the Control of Access line.
7.05 FRM7-C (PERMANENT EASEMENT FOR RIGHT OF WAY)
FRM7-C grants a permanent easement for right of way and will be used only in
rare instances and for special situations. Sometimes this form will be used to
acquire right of way that is contaminated. It is only used on parcels not subject to
Control of Access. The right of way being acquired should be described;
preferably using Cadd generated description supplied by the Cadd Unit.
If easement areas are being acquired in addition to the right of way, descriptions
for these easement areas, such as permanent or temporary drainage easements,
temporary construction easements, and Utility easements are to be placed
following the paragraph "IN ADDITION, and for the aforestated consideration,
the GRANTORS further hereby convey to the DEPARTMENT, its successors
and assigns the following described areas and interests:" The name of the
easement should be followed by the cadd description and appropriate easement
clause. All clauses are located in the Chapter 7 forms.
If for some reason it is decided that easement title is to be acquired and Control
129
of Access will be involved, one of the following provisions must be inserted just
after the description to delineate the appropriate means of access control and
abutter’s rights of access.
a) For specific access points, insert the following clause:
ACCESS RIGHTS: The easement areas herein described are for the purpose of
establishing, constructing and maintaining a controlled access facility and the
GRANTORS, for themselves, their heirs, successors, executors and assigns,
hereby convey, release and relinquish unto the DEPARTMENT, its successors
and assigns, any and all abutter’s rights of access, including any access rights
appurtenant to any existing street or highway incorporated into said facility and
any access rights appurtenant to GRANTORS’ remaining property, in and to the
controlled access facility and to the easement herein described, provided,
however, that there is excepted and reserved unto the GRANTORS their heirs,
successors, executors, and assigns, abutters’ rights of access between survey
stations __________ in an to the lane for travel nearest to their remaining
property as such lane may exist or may hereafter be constructed or
reconstructed and relocated by the DEPARTMENT.
b) For access by frontage or service road, insert the following clause:
ACCESS RIGHTS: The easement areas herein described are for the purpose of
establishing, constructing and maintaining a controlled access facility with
frontage or service roads and the GRANTORS, for themselves, their heirs,
successors, executors, and assigns hereby convey release and relinquish unto
the DEPARTMENT, it’s successors and assigns, any and all abutters’ rights of
access, including any access rights appurtenant to GRANTORS’ remaining
property, in and to the controlled access facility and to the easement herein
described, provided, however, that there has been designated by the
DEPARTMENT, as part of the facility, a frontage or service road adjacent to
GRANTORS’ remaining property between survey stations _________ and
GRANTORS, their heirs, successors, executors and assigns, except and reserve
and shall have abutter’s rights of access to said designated frontage or service
road between said survey stations.
c) For full control of access, insert the following clause:
ACCESS RIGHTS: The easement areas herein described are for the purposes
of establishing, constructing and maintaining a controlled access facility and the
GRANTORS, for themselves, their heirs, successors, executors, and assigns,
hereby convey, release, and relinquish unto the DEPARTMENT, it’s successors
and assigns, any and all abutters’ rights of access, including any access rights
appurtenant to any existing street or highway incorporated into said facility and
any access rights appurtenant to GRANTORS’ remaining property, in and to the
fully controlled access facility and to the easement areas herein described.
130
If easement areas are being acquired in addition to the right of way, descriptions
for these easement areas, such as permanent or temporary drainage easements,
temporary construction easements, and Utility easements are to be placed
following the paragraph "IN ADDITION, and for the aforestated consideration,
the GRANTORS further hereby convey to the DEPARTMENT, its successors
and assigns the following described areas and interests:" The name of the
easement should be followed by the cadd description and appropriate easement
clause. All clauses are located in the Chapter 7 forms.
7.06 FRM7-N PERMANENT DRAINAGE EASEMENT (PDE)
Generally, permanent drainage easements when being acquired with right of
way, should be included in the right of way deed following the paragraph "IN
ADDITION, and for the aforestated consideration, the GRANTORS further
hereby convey to the DEPARTMENT, its successors and assigns the following
described areas and interests: " The name of the easement should be followed
by the cadd description and appropriate pde clause.
EXAMPLE:
Permanent Drainage Easement - Point of beginning being N 11°53'37" E, 546.57
feet from a Point in the Center Line of -L- Sta. 25+00; thence to a point on a
bearing of N 40°20'10" E, a distance of 97.3 feet (29 .65 meters); thence to a
point on a bearing of N 49°36'23" W, a distance of 7 7.0 feet (23.48 meters);
returning to the point and place of beginning, being approximately 0.086 acre.
Said permanent drainage easement in perpetuity is for the installation and
maintenance of drainage facilities, and for all purposes for which the
Department of Transportation is authorized by law to subject same. The
Department of Transportation and its agents or assigns shall have the right
to construct and maintain in a proper manner in, upon and through said
permanent drainage easement area(s) a drainage facility with all necessary
pipes, poles and appurtenances, together with the right at all times to enter
said permanent drainage easement area(s) for the purpose of inspecting
said drainage facility and making all necessary repairs and alterations
thereon; together with the right to cut away and keep clear of said drainage
facility, all trees and other obstructions that may in any way endanger or
interfere with the proper maintenance and operation of the same with the
right at all times of ingress, egress and regress. It is understood and
agreed that the Department of Transportation shall have the right to
construct and maintain the cut and/or fill slopes in the above-described
permanent drainage easement area(s). It is further understood and agreed
that Permanent Drainage Easement shall be used by the Department of
Transportation for additional working area during the above described
project.
131
When no permanent right of way is involved, FRM7-N is to be used with a
metes and bounds description, either manually or CADD generated.
7.07 FRM7-U (PERMANENT UTILITY EASEMENT)
Generally, permanent utility drainage easements when being acquired with right
of way, should be included in the right of way deed following the paragraph "IN
ADDITION, and for the aforestated consideration, the GRANTORS further
hereby convey to the DEPARTMENT, its successors and assigns the following
described areas and interests: " The name of the easement should be followed
by the cadd description and appropriate pde clause.
EXAMPLE:
Permanent Utility Easement - Point of beginning being N 11°53'37" E, 546.57
feet from a Point in the Center Line of -L- Sta. 25+00; thence to a point on a
bearing of N 40°20'10" E, a distance of 97.3 feet (29 .65 meters); thence to a
point on a bearing of N 49°36'23" W, a distance of 7 7.0 feet (23.48 meters);
returning to the point and place of beginning, being approximately 0.086 acre.
Said Permanent Utility easement in perpetuity is for the installation and
maintenance of utilities, and for all purposes for which the DEPARTMENT
is authorized by law to subject same. The Department and its agents or
assigns shall have the right to construct and maintain in a proper manner
in, upon and through said premises a utility line or lines with all necessary
pipes, poles and appurtenances, together with the right at all times to enter
said premises for the purpose of inspecting said utility lines and making all
necessary repairs and alterations thereon; together with the right to cut
away and keep clear of said utility lines, all trees and other obstructions
that may in any way endanger or interfere with the proper maintenance and
operation of the same with the right at all times of ingress, egress and
regress. It is understood and agreed that the Department shall have the
right to construct and maintain the cut and/or fill slopes in the abovedescribed permanent utility easement area(s). It is further understood and
agreed that Permanent Utility Easement shall be used by the Department
for additional working area during the above described project.
When no permanent right of way is involved, FRM7-U is to be used with a
metes and bounds description, either manually or CADD generated.
7.08 FRM7-V (AERIAL UTILITY EASEMENT)
132
Generally, aerial utility easements when being acquired with right of way, should
be included in the right of way deed following the paragraph "IN ADDITION, and
for the aforestated consideration, the GRANTORS further hereby convey to the
DEPARTMENT, its successors and assigns the following described areas and
interests: " The name of the easement should be followed by the cadd
description and appropriate AUE clause.
EXAMPLE:
Aerial Utility Easement - Point of beginning being N 11°53'37" E, 546.57 feet
from a Point in the Center Line of -L- Sta. 25+00; thence to a point on a bearing
of N 40°20'10" E, a distance of 97.3 feet (29.65 mete rs); thence to a point on a
bearing of N 49°36'23" W, a distance of 77.0 feet (23 .48 meters); returning to the
point and place of beginning, being approximately 0.086 acre.
Said Aerial Utility Easement in perpetuity is for the installation and maintenance
of an aerial utility facility, and for all purposes for which the DEPARTMENT is
authorized by law to subject same. The Department and its agents or assigns
shall have the right to construct and maintain in a proper manner in, upon and
through said premises an aerial utility facility with all necessary poles and
appurtenances, together with the right at all times to enter said premises for the
purpose of inspecting said utility lines and making all necessary repairs and
alterations thereon; together with the right to cut away and keep clear of said
utility lines, all trees and other obstructions that may in any way endanger or
interfere with the proper maintenance and operation of the same with the right at
all times of ingress, egress and regress. It is understood and agreed that the
Department shall have the right to construct and maintain the cut and/or fill
slopes in the above-described aerial utility easement. It is further understood
and agreed that said aerial utility easement shall be used by the Department for
additional working area during the above described project.
When no permanent right of way is involved, FRM7-V is to be used with a
metes and bounds description, either manually or CADD generated.
7.09 FRM7-W (DRAINAGE/UTILITY EASEMENT)
In situations where an area is to be used for both a permanent drainage
easement and an Aerial utility Easement or Permanent Utility Easement, the
plans should be revised to covert the overlapping area to a Drainage/Utility
Easement (DUE)
Generally, Drainage/Utility easements (when being acquired with right of way),
should be included in the right of way deed following the paragraph "IN
133
ADDITION, and for the aforestated consideration, the GRANTORS further
hereby convey to the DEPARTMENT, its successors and assigns the following
described areas and interests: " The name of the easement should be followed
by the cadd description and appropriate DUE clause.
EXAMPLE:
Drainage/Utility Easement - Point of beginning being N 11°53'37" E, 546.57 feet
from a Point in the Center Line of -L- Sta. 25+00; thence to a point on a bearing
of N 40°20'10" E, a distance of 97.3 feet (29.65 mete rs); thence to a point on a
bearing of N 49°36'23" W, a distance of 77.0 feet (23 .48 meters); returning to the
point and place of beginning, being approximately 0.086 acre.
Said Permanent Drainage/Utility easement in perpetuity is for the installation and
maintenance of drainage facilities and/or utilities, and for all purposes for which
the DEPARTMENT is authorized by law to subject same. The Department and its
agents or assigns shall have the right to construct and maintain in a proper
manner in, upon and through said premises a drainage facility and/or utility line
or lines with all necessary pipes, poles and appurtenances, together with the
right at all times to enter said premises for the purpose of inspecting said
drainage facility and/or utility lines and making all necessary repairs and
alterations thereon; together with the right to cut away and keep clear of said
drainage facility and/or utility lines, all trees and other obstructions that may in
any way endanger or interfere with the proper maintenance and operation of the
same with the right at all times of ingress, egress and regress.
It is understood and agreed that the Department shall have the right to construct
and maintain the cut and/or fill slopes in the above-described permanent
drainage/utility easement area(s). It is further understood and agreed that
Permanent Drainage/Utility Easement shall be used by the Department for
additional working area during the above described project.
When no permanent right of way is involved, FRM7-W is to be used with a
metes and bounds description, either manually or CADD generated.
7.10 FRM7-D TEMPORARY EASEMENTS
FRM7-D is used for temporary construction, temporary detour, temporary
drainage, temporary utility easements, and temporary haul roads, etc. when
there are no other easements other than temporary easements being acquired.
When using FRM7-D, insert the appropriate description, and the applicable
expiration clause should be inserted in the special provisions
Generally, Temporary easements (when being acquired with right of way or
permanent easements), should be included in the right of way deed or
permanent easement following the paragraph "IN ADDITION, and for the
134
aforestated consideration, the GRANTORS further hereby convey to the
DEPARTMENT, its successors and assigns the following described areas and
interests: " The name of the temporary easement should be followed by the cadd
description and appropriate expiration clause.
A. Descriptions
It is preferable that a metes and bounds description, either manually or
CADD generated, of the easement areas be used. However, when it is
not practicable to use a metes and bounds description, a maximum
width description may be used. Example:
An area, having a maximum width of_________ feet lying outside of and
adjacent to the right of way as shown on the project plans, and being
located between Survey Station __________ and Survey Station
___________, left/right of Survey Line ___________..
B. Expiration - There are two expiration clauses to choose from. The Agent
should examine the plans and if any portion of the slope-stake line is
within the temporary easement, expiration clause below (No. 1) is used:
1. It is understood and agreed that the DEPARTMENT shall have the
right to construct and maintain the cut and/or fill slopes in the
above-described areas until such time that the property owners
alter the adjacent lands in such a manner that the lateral support of
the cut and/or fill slopes is no longer needed. Any additional
construction areas lying beyond the right of way limits and beyond
any permanent easement areas will terminate upon completion of
the project.
If no portion of the slope-stake line is within the temporary easement, the
expiration clause below (No. 2) is used:
2. This construction easement shall expire upon completion and
acceptance of the aforementioned project.
EXAMPLE:
Temporary Construction Easement - Point of beginning being N 11°53'37" E,
546.57 feet from a Point in the Center Line of -L- Sta. 25+00; thence to a point on
a bearing of N 40°20'10" E, a distance of 97.3 feet ( 29.65 meters); thence to a
point on a bearing of N 49°36'23" W, a distance of 7 7.0 feet (23.48 meters);
returning to the point and place of beginning, being approximately 0.086 acre.
It is understood and agreed that the DEPARTMENT shall have the right to
construct and maintain the cut and/or fill slopes in the above-described areas
135
until such time that the property owners alter the adjacent lands in such a
manner that the lateral support of the cut and/or fill slopes is no longer needed.
Any additional construction areas lying beyond the right of way limits and beyond
any permanent easement areas will terminate upon completion of the project.
OR
This temporary construction easement shall expire upon completion and
acceptance of the project.
7.11 FRM7-T OPTIONS
Options can be obtained when agreements have been reached for a fee simple
purchase of a total property pending the execution of a deed at the closing of the
transaction. An Option (FRM7-T) should be completed, and included with the
final report. However, the preferred method of purchase is by execution of the
deed at the time of settlement.
An expiration date of at least ninety days should be inserted in the Option to
insure adequate time to process the claim for payment and to close the
transaction. In order to insure sufficient time to clear up all liens and
encumbrances, a period of time up to six months may be warranted. In addition
to the expiration date, the Agent should place $1.00, as consideration for the
grant of the Option, along with adequate title information and description for the
subject property, in the body of the Option form. The closing attorney should
promptly draw the warranty deed conveying the property to the Department of
Transportation and submit the proposed deed to the Agent to be included with
the final report. The Agent shall send a copy of the option to the closing attorney
along with the closing papers to assist him/her in preparing the deed. Note: the
FRM7-J must be accepted by the Division R/W Agent prior to being
recorded.
In the event an owner refuses to comply with the terms of the Option, the
Assistant State Negotiator or State Negotiator should be contacted.
7.12 FRM7-J GENERAL WARRANTY DEEDS
FRM-JJ SPECIAL WARRANTY DEEDS
Generally, a warranty deed is used in the following situation:
1. When the entire property is located within the right of way
2. When the Department is acquiring a remnant (residue)
136
3. Certain situations when the Department is acquiring the entire property
(r/w & remnant)
4. Other situations as approved by the Raleigh R/W Office
When the entire property is located within the right of way, the Agent may
prepare FRM7-J, typically using the description from the owner’s deed. If the
owner’s description is not appropriate because he/she has sold a portion of it, a
cadd description of manually drawn description will suffice. The total amount of
payment should be shown in the FRM7-J and the claim will be processed in the
typical way. The total amount of payment should be inserted in the deed. Prior
to closing the Division R/W Agent will sign the deed on the ACCEPTED FOR
THE DEPARTMENT line.
When the Department is acquiring a remnant (residue), there are two accepted
methods of deed preparation:
A. The Agent may prepare a deed for the r/w and easements, and a
separate FRM7-J for the remnant. The description for the remnant
should only cover the remnant and can be by cadd or manually
described). The amount of the approved appraisal and any adjustment
is placed on the deed for the r/w & easements, and the value of the
remnant according to the memorandum to purchase, is inserted in the
FRM7-J.
B. The Agent may prepare one FRM7-J that covers the entire property
being acquired. However, if there is a reminder that the owner will
retain method (A) must be used. This could occur if there are two
remnants and the owner wants to sell one and keep the other.
The R/W Cadd unit, upon request, will furnish a cadd description for a remnant.
Deeds should be drawn in favor of the Department of Transportation, an agency
of the State of North Carolina. The total amount of payment should be shown in
the FRM7-J and the claim will be processed in the typical way. Prior to closing
the Division R/W Agent will sign the deed on the ACCEPTED FOR THE
DEPARTMENT line.
Occasionally, a remnant is acquired as a part of the settlement of a condemned
claim. In these cases, the AG Attorney who settled the claim will prepare and
record the Warranty Deed. The attorney may request assistance from the Agent
or R/W Cadd Unit with the description.
The department in all of its instruments seeks general warranty from the property
owner. Occasionally, an owner, or their attorney, may desire or demand that
137
warranty language be altered in the Department’s instruments. If these situations
occur, the Agent should contact the Assistant State Negotiator for further
directions. Typically, the Assistant State Negotiator will discuss the situation with
the Attorney General’s Office. FRM7-JJ may be used
The Agent should not change the warranty provisions in the Department’s
instruments with first obtaining approval from the Assistant State
Negotiator or State Negotiator.
FRM7-JJ is a Special Warrant Deed. This deed should only be used with the
permission of the Assistant State Negotiator or higher managers. With consent
from the Attorney General’s office and permission from management, FRM7-JJ
may be used in place of FRM7-J.
7.13 RELEASE DEEDS OR SUBORDINATION AGREEMENTS
Where it is necessary to secure a release under a deed of trust, the Right of Way
Agent should use FRM7-L. The original is included with the Final Report. The
release should be executed by the holder of the deed of trust and the trustee.
The Agent will insert a clause in the last paragraph of the release as follows:
"The undersigned make this release with the understanding that
$_____________ of the consideration set forth in the above-mentioned Deed is
to be paid to (Mortgage Holder’s Name) and the balance, if any, is to be paid to
___________________ (typically the Owners). The word "none" is inserted in
the first blank if the lending agency releases all of the consideration to the
property owner. The word "all" is inserted if the lending agency or person holding
the deed of trust requires all of the consideration. A stated amount of money can
be inserted if the lending agency or holder of the deed of trust required a portion
of the consideration. The r/w deeds or easements should be recorded prior to
the release being recorded by the closing party so that the recording information
for the instrument can be shown in the release. The Agent will find that, in some
instances, lending agencies may prefer to use their own form of release deed or
subordination agreement which forms generally will be satisfactory to accept
subject to the approval of the Attorney General’s Office. The release will be
discussed again in Chapter 11.
Where it is necessary to secure a release under a lease, including billboard
leasehold interests, the Agent should use See FRM7M.
138
7.14 DEED FOR PURCHASE OF BUILDINGS LOCATED
PARTIALLY OUTSIDE THE RIGHT OF WAY
In those transactions where the Department is purchasing a building that is
located partially within the right of way and partially outside of the right of way or
easements, the following clause should be inserted in the instrument:
It is understood and agreed that the above recited consideration includes the
purchase by the Department of the (description of structure), a portion of which
is located outside the previously described Right of Way. It is further understood
and agreed that the undersigned hereby grants to the Department, its
successors and/or assigns, the right of ingress and egress over the property of
the undersigned to the extent necessary to inspect, abate, remove and dispose
of the entire (description of structure), and the undersigned will have no claim
for damages with the Department, its successors and/or assigns, as a result of
the ingress and egress over the property of the undersigned, and the
inspection, abatement, removal and disposal of the entire (description of
structure)
7.15 ACCESS CHANGE AGREEMENT
Occasionally, a property owner may request that the Department revise or move
an existing access point on a claim that has been closed (or if condemned, the
claim has be concluded). These requests must go through a formal review
process which is described in Chapter 14 of this manual. There may be
situations of this nature where the Department would require monetary
consideration from the owner to make such a change due to the fact that the
access change could enhance the value of the adjacent property. Division R/W
Agents and Agents should understand this process and be able to explain it to
owners. Access Points cannot simply be moved by a plan change.
7.16 SPECIAL AGREEMENTS, PROVISIONS, AND CLAUSES
Right of Way Employees should not add clauses to or change the wording of
the approved instruments without the approval of the Assistant State
Negotiator, State Negotiator, Manager or Assistant Manager. Usually, any
proposed changes will be carefully reviewed with the Attorney General’s Office
to be sure that they convey the intended meaning and are not ambiguous or
subject to other interpretation, and they protect the Department’s interests.
The most common special provisions are those specifying how the settlement
proceeds are to be paid, or provisions permitting reconnections of driveways.
The Department does not want to take title either by negotiated settlement or
139
condemnation to any property which may present an environmental concern
without first making an investigation. In some instances where the Agent is
authorized to proceed with settlement on a parcel where the incidence of
contamination is questionable, the Agent should use an Easement Agreement in
place of the Fee Simple Deed.
7.17 DEEDS AND EASEMENTS WHERE PLANS NOT
RECORDED
GS 136-19.4 requires that right of way plans be recorded in the courthouse in the
county in which the project is being built. In some instances the Department may
make highway improvements based on a sketch when no plans are available. In
these instances, the Agent will use the applicable instrument, delete the standard
wording which refers to the plans being recorded in the Office of the Register of
Deeds and add in one of the two following clauses:
1. Said easement widths, station numbers, survey lines and additional easement
areas being delineated on that set of plans for State Highway Project
______________ on file in the office of the Department of Transportation in
Raleigh, North Carolina, to which plans reference is hereby made for greater
certainty of description of the easement areas herein conveyed and for no other
purpose.
OR
2. The final right of way plans showing the above described area are on file in the
Office of the Department of Transportation in Raleigh, North Carolina, reference
to which plans is hereby made for purposes of further description and for greater
certainty.
When adding one of the two clauses above, the Agent should delete from the
instrument the following:
“The final right of way plans showing the above described right of way are
to be certified and recorded in the Office of the Register of Deeds for said
County pursuant to N.C.G.S. 136 19.4 reference to which plans is hereby
made for purposes of further description.”
The Agent should include the sketch or plan showing the acquisition with the final
report.
7.18 CONVEYANCES FROM FEDERAL AGENCIES
140
Conveyances of right of way acquired from federal agencies will be
accomplished by the use of easement forms prepared by the appropriate Federal
agency and will be handled as set out in Federal Highway Administration 23 CFR
710, Subpart F. An exception to this will be that rights of way acquired from the
US Forest Service for nonfederal aid highway projects will be by the use of
special use permits issued by the Forest Service. Conveyances from Federal
agencies will be handled by the State Negotiator’s Office. If appropriate, the
easement should be recorded.
7.19 ACQUISITION OF SECONDARY ROADS RIGHTS OF WAY
The following agreements will be used in the R/W for secondary road
improvements and additions to the State Highway Maintenance System.
SR Improvement - Staked
This easement form is to be used for parcels involving the improvement of
secondary roads where no consideration is paid for right of way and where the
right of way is staked out on the ground. (FRM7-E)
SR Improvement - Centerline
This easement form is to be used for parcels involving the improvement of
secondary roads where no consideration is paid for right of way and where
the centerline of the existing road coincides with the centerline of the right of
way. (FRM7-F)
Note that the SR Improvement - Staked and the SR Improvement - Centerline
forms contain the following phrase -- “...and such additional widths as might be
necessary to provide for cut and fill slopes, sedimentation control and drainage of
the road.” This statement is rather broad and some property owners may object
to signing the agreement with this clause. The Agent, in these cases, should
check with the District Engineer, and if it is found that construction limits,
sedimentation control measures and drainage can be contained within the right
of way, it will be permissible to type a new easement omitting this clause. If it is
evident that the construction limits will exceed the right of way, and the property
owner objects to signing the agreement as prepared, it will be satisfactory to
insert in the agreement a qualifying clause to the effect that it is understood and
agreed that the cut and fill slopes referred to above may exceed the right of way
a maximum of __________ feet. If there is a drainage outfall ditch that will extend
some distance from the project, this may be handled by a separate drainage
easement which will be covered in a separate paragraph of this section. The
Agent must obtain book(s) and page numbers of all deed(s) references in
identifying the parcel on the secondary easement forms. In some extreme
141
circumstances, it may be necessary to use the “bounded by” line to supplement
the identification of the property from which right of way is being acquired, and in
these situations, the property or parcel should be bounded on all sides. Any
specific construction provisions or concessions and right of way reductions must
be approved by the District Engineer. Payment for buildings and condemnation
on secondary roads will be discussed later in the Manual.
SR Addition - Centerline
This easement form is to be used for roads to be added to the secondary system
on parcels where no consideration is paid for the right of way and where the
centerline of the existing road coincides with the centerline of the right of way.
(FRM7-G)
SR Addition - Map
This easement form is to be used for roads to be added to the secondary
system where no consideration is paid for right of way and where the right of
way is staked on the ground and is shown on a map which has been sent to the
Raleigh office. (FRM7-H)
SR Addition - Staked
This easement form is to be used for roads to be added to the secondary system
on parcels where no consideration is paid for right of way and where the right of
way is staked out on the ground. (FRM7-I)
7.20 AGREEMENTS FOR LOCAL MATERIAL
The procurement of local material, such as borrow, sand, gravel, or topsoil and
the storage and stockpiling of material will be implemented by use of the
following three forms:
1.
FRM7-P - Agreement for Local Material - This form is to be used where
the material site is to be leased with payment being made in advance of removal
of the material.
2.
FRM7-Q - Agreement for Local Material - This form is to be used where
the material is required for a particular project and payment will be based on
actual pit measurements after the material has been removed.
3.
FRM7-R - Agreement for Storage and Stockpiling Material - This form is to
be used where sites are to leased for the storage and stockpiling of material with
payment being made in advance for use of the site
142
These requests usually come from the District Engineer. And the payment is
handled through the final report process.
7.21 OBLIGATIONS OTHER THAN THOSE SET OUT IN THE
INSTRUMENT WILL NOT BE RECOGNIZED
It is imperative that the right of way instruments specifically include all terms and
conditions mutually agreed upon and that it reflects a complete agreement on all
matters involved in the negotiation. It cannot be stressed to strongly that no
obligations other than those set forth in the instrument will be recognized
and the performance of the terms and conditions contained therein relieves
the Department of any and all further obligations or claims. Under no
circumstances should the Negotiating Right of Way Agent make verbal
commitments or side agreements which:
1. are not reduced to writing in the appropriate instrument or
2. Obligate the Department to any continuing maintenance obligation extending
beyond the completion date of the project.
7.22 WARRANTY PROVISIONS
The department in all of its instruments seeks general warranty from the property
owner. Occasionally, an owner, or their attorney, may desire or demand that
warranty language be altered in the Department’s instruments. If these situations
occur, the Agent should contact the Assistant State Negotiator for further
directions. Typically, the Assistant State Negotiator will discuss the situation with
the Attorney General’s Office. FRM7-JJ may be used
The Agent should not change the warranty provisions in the Department’s
instruments with first obtaining approval from the Assistant State
Negotiator or State Negotiator.
7.23 INDEMNIFICATION OR HOLDING PARTIES HARMLESS
IN INSTRUMENTS PROHIBITED
During the negotiation of a claim, a grantor may desire or demand that language
be placed in the deed or agreement that would require the Department of
Transportation to indemnify or otherwise hold that party harmless from any act,
activity, responsibility, loss, damage, and/or expense incurred by that party on
their property as a result of any action taken by or on behalf of the Department.
The Agent cannot indemnify or hold harmless a grantor or property owner
from any action taken by the Department of Transportation.
If this situation arises, the Agent should contact the Assistant State Negotiator for
143
further directions. Typically, the Assistant State Negotiator will discuss the
situation with the Attorney General’s Office.
7.24 POLICY ON VOIDING OR SUPERSEDING SIGNED
RIGHT OF WAY INSTRUMENTS
After a right of way instrument has been signed by the grantor(s), it is acceptable
to type or print names and addresses in the heading, type or print names under
the signatures, complete the notary, type or print the amount of revenue stamps,
and in the case of releases, add appropriate recording information. Other than
the above, the instrument shall not be altered in any way, unless the
grantors initial the change. Furthermore signed instruments may not be
superseded, or canceled by the Agent making the settlement. Instruments
may only be canceled by the Manager or Assistant Manager of Right of Way and
then only where:
A. There is a reasonable doubt that the negotiation did not reflect complete
agreement
B. The description is found to be deficient
C. Provisions in the instrument are contrary to statute or policy
D. It is ambiguous or misleading as to meaning or intent
In those instances when a second or subsequent instrument is required, it is
recommended that the original or existing right of way be described in the new
instrument along with the proposed right of way appropriation. Special provision
clauses should be placed in the body of the new instrument and not in the top
section to avoid creating a misleading or questionable easement.
The Division R/W Agent should seek direction from the Raleigh R/W Office
should this situation arise.
7.25 DEDICATION OF RIGHT OF WAY AND EASEMENTS
Frequently, the Department, as a part of a driveway permit, will require a property
owner/developer to donate or dedicate right of way or easements necessary for
the maintenance of the existing roadway. The right of way or easements may be
along the property owner/developers property or they may extend onto other
owner’s property. These areas typically are required for turn lanes into the
developed property. This section does not apply to new roads being considered
for addition to the State Maintenance system (subdivision roads), but additional
r/w or easements adjacent to existing state maintained roads.
144
In these cases, the District Engineer should identify size and type of the areas
needed for dedication and direct the developer to contact the Division R/W
Agent.
It is important the dedication of the right of way or easements by a recordable
instrument that is accepted by the Division RW Agent, and not merely a plat.
The Division R/W Agent should provide the developer the forms for dedication,
and request that the developer prepare them and submit them for checking prior
to execution. The developer then returns the signed/notarized forms to the
Division RW Agent for acceptance. The accepted forms are returned to the
developer for recording. The developer informs the Division RW Agent of the
recording information and the Division RW Agent informs the District Engineer
and files the recorded forms in the Office files.
7.26 PRIVATE ACCESS EASEMENTS
Typically, in order to provide access to a property that would otherwise be
isolated, the Department will acquire additional right of way, and route an access
road or drive across that right of way. In the event that the Department agrees to
construct a private access road across the lands of another to provide access to
a property that would otherwise be isolated, the Agent, with the concurrence of
the Assistant State Negotiator, is to prepare an agreement in accordance with
the draft of proposed access agreement shown as FRM7-N. This agreement is
rarely used.
145
Chapter 8
EXECUTION AND
ACKNOWLEDGMENT OF
INSTRUMENTS
8.01 EXECUTION OF INSTRUMENTS - GENERAL
All deeds and easements, must show the names and addresses of all grantors,
and must be signed and sealed by all grantors. The grantors’ signatures must
match the be notarized by a Notary Public. Where practicable, the names of the
grantors should agree with their names as they appear on the instruments of
record under which they derive their interest in the property. Signatures,
notaries, and the names appearing in the heading of the instruments should all
match. As stated in Chapter 7, the name of the signing party should be typed or
printed legibly beneath his/her signature. With the proper execution of the
instrument of conveyance by all parties named as grantors and their
acknowledgment by a Notary Public, the instrument of conveyance can be
recorded in the county registry thereby transferring title to the acquired property
or rights of way from the grantors to the Department of Transportation.
8.02 ACKNOWLEDGMENT OF INSTRUMENTS (NOTARY)
Per G.S. 47-27, all right of way deeds, easements and other instruments of
conveyance shall be recorded. These instruments of conveyance cannot be
registered as public records until an authorized official, such as a notary public,
certifies that the documents were executed properly. The prerequisites to
certifying instruments of conveyance for recording are the proper
acknowledgment of all signatures of the grantors and the attestation of the
acknowledgment by a notary public. An acknowledgment is an act in which a
notary certifies that a signer, whose identity is personally known to the notary or
proven on the basis of satisfactory evidence, has admitted, in the notary’s
presence, having signed a document voluntarily. An attestation occurs when the
notary "attests" his official acts by making a clear and legible impression of his
seal or stamp, by his proper signature, by the readable appearance of his name
and a statement of the expiration date of his notary commission on the
instrument of conveyance or document which is being acknowledged.
1
The Notary Public Guidebook for North Carolina published by the Institute of
146
Government, The University of North Carolina at Chapel Hill serves a guideline
for powers and functions of notaries and a reference for properly certifying
instruments of conveyance for recording. This publication is available through
the Notary Division of Secretary of State’s Office in Raleigh or the Publications
Division of the Institute of Government.
In the negotiation and the settlement of claims, Negotiating Agents (who are
required to be Notary Publics) must insure the proper certifications,
acknowledgments and attestations of right of way deeds, agreements and other
instruments of conveyance have been performed or have occurred so they can
be recorded. When instruments are prepared by the Agent in anticipation of
settlement and execution by a property owner, appropriate acknowledgment
certificates should be attached or affixed to the instruments for execution,
especially; when the instrument will be mailed or given to an out-of-town or outof-state owner for execution and notarization. An Agent who is a notary in North
Carolina can perform official notarial acts and functions in any of the one hundred
counties of North Carolina even though he/she has been commissioned for a
specific county.
Department of Transportation employees who are Notary Publics, must see a
grantor execute an instrument in person in order to Notarize their signature.
If it is not practicable for an individual to personally appear before a notary, the
signature should be properly witnessed by some person of age, not an employee
of the Department of Transportation, who may later be available to appear before
a notary public or other such official as a subscribing witness so that the
execution of the instrument can be proven for recording in the office of the
Register of Deeds.
8.03 OWNERSHIP BY PERSONS
In North Carolina, the most common form of ownership by a person is in his or
her individual capacity. Ownership by a person may be individually (in severalty)
or jointly (1) with his or her spouse as tenants by the entirety or (2) with other
owners as tenants in common. Tenancy by the entirety is ownership by a
husband and wife in such a manner that, except through joint action, neither has
a disposable interest in the property during the lifetime of the other but, upon
death of either, the property goes to the other. Tenancy in common is the
ownership of property by two or more persons, each of whom has an undivided
interest in the whole property which, upon his/her death, passes to his/her heirs
and not to the surviving remaining co-owners.
Where property is owned by a person individually (in severalty) or as a tenant in
147
common, an owner’s spouse has an interest in the property by reason of their
marriage, better known as a marital interest. In all cases, an owner’s marital
status will be determined and shown in the heading of the instrument of
conveyance as well as in the acknowledgment form, (James Jones, Single;
James Jones, Divorced; James Jones, Separated; James Jones, Widower;
James Jones and wife, Mary Jones; Mary Jones, Widow; etc.). In order to clear
this marital interest, the spouse must join with their husband/wife owner in the
execution of the instrument. Occasionally, a spouse will refuse to waive his or
her interest in the property by joining in the execution of an instrument with the
husband/wife owner; or the husband/wife owner may refuse to execute the
instrument if the spouse is called upon to sign or is made a party to payment. In
such cases, the Agent should report the circumstances to the Raleigh Office for a
decision as to the proper course to follow.
There are numerous instances where the marital rights of a spouse in the
owner’s property have been extinguished, such as by absolute divorce, legal
separation by judgment or deed of separation, pre-marital agreement, and
abandonment or other misconduct by the spouse. In those instances where the
marital property rights of the spouse of the husband/wife owner may have been
extinguished, legal advice by an attorney should be sought to determine whether
the execution of instrument by the spouse is necessary; if so, the Agent should
report the circumstances to the Raleigh Office for a decision as to the proper
action to follow.
Where property is owned by a person with his spouse as a tenant by the entirety,
both the husband and the wife must join in the execution of the same instrument.
By the entering of an absolute divorce, a tenancy by the entirety will be converted
into a tenancy in common. A tenancy by the entirety is not terminated by a mere
legal separation by a deed of separation or a judgment, by abandonment or other
misconduct of either spouse, or by the other instances which would terminate a
spouse’s marital interest in the property of the husband/wife owner. Again, where
there is any question, legal advice should be sought from an attorney and the
Agent should report the circumstances to the Raleigh Office for a decision as to
the proper course to follow.
At the end of this Chapter are examples of headings, signature blocks and
notaries for various situations. All Notary Blocks are contained within Chapter 7
Forms folder.
The acknowledgment of signatures of grantors of persons serving in the armed
forces of the United States may be made by an officer of the Army, Navy, Air
Force, Marine Corps, Coast Guard, or Merchant Marines having the rank of
warrant officer or higher. No official seal shall be required of such officers of the
above services, but he shall sign his name, designate his rank, and give the
name of his ship or military organization and the date. It is not required that the
place of taking the acknowledgment be given.
148
8.04 OWNERSHIP BY CORPORATIONS
A corporation is a legal entity separate from the individuals who are its officers,
directors, and stockholders. It is bound only by the authorized acts of its agents.
Instruments secured from corporations must be executed in corporate form using
one of the following corporate forms of acknowledgment.
With the ratification of the general statutes regarding corporate conveyances,
N.C.G.S. 47-41.01(b), (c), & (d) and N.C.G.S. 47-18.3, effective October 1, 1999,
corporate conveyances may now be executed in one of two (2) ways: (1) the
new method, involves the execution of the instrument by an authorized official of
the corporation with the acknowledgment not requiring the attestation of another
official of the corporation nor the affixing of a corporate seal (2) the traditional,
and still acceptable, method involves the execution of the instrument of
conveyance by one officer of the corporation whose signature is attested
(witnessed) by another officer of the corporation who, in turn, affixes the
corporate seal to the instrument.
The official corporate name, together with the state of its incorporation, should
appear both in the heading of the instrument and also above the space for the
signature of the official signing the instrument on behalf of the corporation. The
corporation official signing the instrument must be authorized to do so in the
name of the corporation and will be the chairman, chief executive officer,
president, a vice-president or assistant vice-president, treasurer, or chief financial
officer. The title or official capacity of the person(s) executing the instrument
should be shown. The official name of corporations authorized to do business in
North Carolina may be accessed from the State of North Carolina – Secretary of
State’s Web Site - Corporations Section.
If an attesting officer acknowledgment form is to be used when the instrument
has been executed by the chairman, chief executive officer, president, a vicepresident or assistant vice-president, treasurer, or chief financial officer, it must
be attested by the secretary or assistant secretary, trust officer, assistant trust
officer, or, in the case of a bank, the secretary, assistant secretary, cashier, or
assistant cashier who is authorized to do so in the name of the corporation. The
corporate seal may be affixed to the instrument by the attesting officer. Only the
attesting officer need appear before the notary to give the acknowledgment.
Right of Way Agents are not authorized to reproduce any similarity of a corporate
seal for property owners. The affixing of the corporate seal to an instrument is
evidence that the seal is the duly adopted corporate seal of the corporation and
that it was affixed by a person duly authorized to do so.
* Note that the words "a corporation" may be omitted when the name of the
corporation ends with the word "Corporation" or "Incorporated".
149
This section on corporate conveyances has been broadened to provide
for the execution of instruments by officers or agents of a corporation
other than those mentioned above. Now, any officer, manager or agent of
a corporation may execute instruments of conveyance, and the same can
be recorded in the register of deeds, provided a signed and attested
resolution of the corporation’s board of directors authorizing the officer,
manager or agent to execute the instrument is attached to the instrument
of conveyance or is separately recorded in the register of deeds office
wherein the real property interest lies provided the separately recorded
resolution was executed prior to the execution of the instrument of
conveyance and pursuant to the authority contained in the resolution.
8.05 OWNERSHIP BY A LIMITED LIABILITY COMPANY
A limited liability company is owned by its members, but the business affairs of a
company are conducted by its managers.
8.06 OWNERSHIP BY PARTNERSHIP
Property is sometimes owned by a person or corporation with one or more other
persons or corporations as an asset of a partnership. The fact that the property
is a partnership asset may or may not be revealed by the record title to the
property. Generally speaking, one partner may legally execute an instrument for
the partnership and bind the other partners; however, as a matter of precaution,
the Agent should require all of the partners to execute the instrument. Again,
generally speaking, the spouse of a person who is a partner has no marital
interest in property which is an asset of the partnership; however, as a matter of
precaution, the Agent should require all spouses of the partners to join with them
in the execution of the instrument. Waivers of this practice should be obtained
from the Assistant State Negotiator.
If property is an asset of a partnership, the names of the partners (and their
spouses) and the name of the partnership should appear in the heading of the
instrument.
8.07 OWNERSHIP BY ESTATE
When a person dies owning property individually (in severalty) or as a tenant in
common (with others), title to the property immediately vests in his heirs at law
when he/she dies without a will, or in his devisees when he dies with a will which
150
devises the property. For a period of two years following his death, the property
of a deceased person is subject to claims for his debts and the cost of the
administration of his estate. For this reason, any conveyance of any interest in
his property by his heirs at law or devisees during this period of time may be
declared to be void and of no effect. This two-year period of time may be
shortened if the administration of the estate is closed; that is, if all of the debts
and costs of administration of the estate of the deceased owner are paid, a final
account is filed with the Clerk of Superior Court, and the personal representative
(i.e. the administrator or executor) is discharged by the Clerk of Superior Court
from further responsibility in connection with the administration of the estate.
During this period when the property is subject to the debts and costs of
administration of the estate of a deceased owner, there are several ways in
which a good title may be obtained free from such claims. Where the deceased
owner has left a valid will, the executor/executrix may be authorized by its terms
to convey real property of the estate; if so, an instrument can be executed by
such executor/executrix in his/her official capacity without the necessity of the
joinder of the devisees. Where the deceased owner has left a will without
including terms or covenants authorizing the conveyance of real property or case
may be, must execute the instrument with the joinder of the personal
representative, i.e., the executor/executrix who does not have the authority to
convey real property or an administrator/administratrix who has been appointed
by a court to take charge of a deceased owner’s estate. For questionable
situations involving estates and the conveyance of real property, the Agent
should report the circumstances to the Raleigh Office requesting legal advice
from an attorney to determine a proper course of action to follow.
In those instances where the executor of an estate is authorized by the terms of
the will to convey the real property of the estate, the instrument should be
signed by the executor/executrix in his/her official capacity. Acceptance of
execution by an executor/executrix should be supported by information in a
certificate of title or by an attached copy of the will.
(Official Seal) After the period has passed in which the property is subject to
claims for the debts and costs of administration of the estate of the deceased
owner when the estate has been probated and closed, the instrument should be
executed by his/her heirs at law or devisees, as the case may be, and an
acknowledgment form for individuals would be used.
151
8.08 OWNERSHIP BY MINORS
Generally speaking, persons under the age of 18 years are minors and cannot
convey their property. In such cases, it will be necessary to have a guardian
appointed by the Clerk of Superior Court through a special proceeding brought
by the guardian seeking authority from the Clerk and approval by a judge of
Superior Court for the guardian to be able to execute an instrument of
conveyance on behalf of the minor. When dealing with claims involving a minor,
the Agent, with the approval of the Raleigh Office, should employ the local
abstracting attorney who furnished the certificate of title to handle this special
proceeding to appoint a guardian ad litem for the minor. Before doing so, it is
advisable that a tentative agreement be reached with the natural or general
guardian of the minor. A copy of all court documents filed in such proceedings
along with the signed court order appointing a guardian should be sent to the
Raleigh Office along with the instrument executed by the guardian on behalf of
the minor.
Where the consideration due the minor amounts to less than $250, the special
proceeding in court may be waived with the prior approval of the Raleigh Office.
In acquisitions where Federal-aid is involved, the special proceeding will not be
waived regardless of the amount of compensation involved.
If the minor is married to a person 18 years old or older, such a minor may validly
execute an instrument in the following situations only: (1) to waive such minors
marital interest in the property owned by the minor’s spouse; or (2) jointly
execute with the minor’s spouse, an instrument with respect to property held with
such minor’s spouse as tenants by the entirety or tenants in common.
If the minor’s spouse is under 18 years of age or if the minor owns the property
and the minor’s spouse owns no interest except a marital interest, the
exceptions to the general rule stated above as to married minors do not apply.
8.09 OWNERSHIP BY INCOMPETENTS
Generally speaking, an instrument executed by an incompetent person is not
valid. Where property is owned by an incompetent, the Agent should negotiate
with such guardian as may be available. After reaching a tentative agreement,
the Agent with the approval of the Raleigh Office should employ the local
abstracting attorney who furnished the certificate of title to arrange for a special
proceeding to authorize the guardian to execute the instrument. A copy of all
documents filed in such proceedings should be sent to the Raleigh Office along
with the instrument.
152
The duly appointed guardian of the incompetent spouse of a person who owns
property in severalty or as a tenant in common is authorized to join with such
person in the execution of an instrument in order to waive the incompetent
spouse’s marital interest in the property without the necessity of special
proceeding.
The grantor heading, execution and acknowledgment of an instrument of
conveyance involving an incompetent where a guardian has been appointed by
the court to execute the instrument will be the same form as that for a minor
outlined above. The instrument should specify who the check is to be paid to.
8.10 PROPERTY OWNED BY RELIGIOUS, CHARITABLE OR
FRATERNAL ORGANIZATIONS AND CORPORATIONS
Care should be taken that instruments from religious, charitable, or fraternal
organizations or corporations be executed in conformity with the by-laws and
constitutions of such groups. Resolutions of authority to execute such
instruments shall be obtained from the particular organization upon execution of
the instrument, and a certified copy of such resolution should be attached to the
instrument. Generally, these organizations appoint trustees who are empowered
to execute instruments. The heading or body of the instrument should always
show the name(s) of the party who hold(s) the title to the property, for instance,
(Trustees for X church), rather than merely X church. The check should be
made payable to the organization, not the trustees.
NOTE: In the Catholic Church, property is owned in the name of the diocesan
bishop.
If a church or religious organization, a charitable or fraternal organization has
incorporated and title to the property vests with the corporation, a corporate
execution and acknowledgment should be used.
8.11 PROPERTY OWNED BY POLITICAL SUBDIVISIONS
Instruments from cities, towns, counties, or other political subdivisions must be
executed by the proper official. The "proper official" is the person authorized by
the political subdivision’s governing body to perform such an act. In the case of
cities and towns, the city or town council will have authorized an individual to sign
the instrument - usually the Mayor or City Manager. The official’s signature
should be attested by the city or town Clerk; and the official seal of the
municipality must be affixed. The name of the municipality should appear over
153
the official’s signature, and his official title should appear below the signature.
In the case of counties, the instrument should be signed by the Chairman of the
Board of Commissioners or the County Manager -or whomever the County
Commissioners have authorized to sign such an instrument. Again, the official’s
signature must be attested by the Clerk to the Board, and the official county seal
be affixed.
In all cases, the instrument should be supported by a certified copy of a
resolution by the governing board of the political subdivision authorizing its
execution.
In addition, the Signature Block must contain a special section which states the
date of the resolution. For Example:
IN WITNESS WHEREOF, GRANTOR, pursuant to a resolution dated
___________, has caused this instrument to be signed in its corporate
name by its CHAIRMAN OF THE WAKE COUNTY BOARD OF
COMMISSIONERS, its corporate seal hereto affixed, and attested by it CLERK
OF THE WAKE COUNTY BOARD OF COMMISSIONERS, by order of the
WAKE COUNTY COMMISSIONERS, this the day and year first above writ
8.12 PROPERTY OWNED BY A TRUST
When encountering ownership by a trust, the Agent must first determine
1. that the property being acquired is part of the trust
2. who, as trustees, are empowered with the authority to act and execute an
instrument of conveyance
3. the type of trust involved, a revocable or an irrevocable trust. (A revocable
trust is one that can be taken back or extinguished while an irrevocable
trust is one which cannot be changed, rescinded or extinguished.)
4. All trustees designated in the trust agreement must sign the instrument of
conveyance.
5. A copy of the trust agreement or instrument must be obtained and placed
in the final report. In these cases the check should be payable to the
trust, not the Trustee and the federal tax id is that of the trust.
154
8.13 POWER OF ATTORNEY
Frequently, an Agent may encounter a Power of Attorney. This is a written
document in which one party gives another party the right to do certain acts on
their behalf. The power of attorney must be recorded in the county where the
claim is located and it must grant the authority to convey real estate. In cases
where there is a valid power of attorney, the r/w agreement may be executed by
the person/entity who was granted the power of attorney. This is frequently one
spouse for the other or a child for their parent, but is not limited to these
situations.
Where a property is owned by a group of individuals, such as a number of heirs
of an undivided estate, the negotiation and subsequent closure of the transaction
may be greatly expedited and simplified if all or even a part of the individuals will
agree to appoint one of their number to act for all. Where there is no existing
power of attorney and the individual owners are willing to appoint one of the
owners as their attorney-in-fact, the Agent should provide that individual person
to be designated as attorney-in-fact with the standard Department of
Transportation power of attorney form FRM 8-A for execution by the individual
owners. The owners and their spouses if any are to join in the execution of
this/these form(s). All signatures must be properly acknowledged and notarized
and the power of attorney must be recorded.
The statutes require that an acknowledgment by an attorney in fact under a
power of attorney be given under oath and should be certified.
8.14 PROPERTY ENCUMBERED BY DEED OF TRUST
Where a deed of trust is held against the property and a separate release or
subordination agreement is not secured, both the trustee and the beneficiary or
cesti quie trust (i.e. the holder of the note or other owner of the obligation
secured) must join in the execution of the instrument along with the property
owner. The names of both the trustee and the cestui-que-trust should appear in
the heading of the instrument and the capacity in which they are executing the
instrument should follow their names. Ordinarily the cestui-que-trust should
execute the instrument first in order to authorize the trustee to execute the
instrument. See Charpter 11 and Chapter 7.
155
8.15 ELIMINATION OF THE SEAL
Until recently, North Carolina was one of the states requiring that all instruments
of conveyance be "signed, sealed, and delivered" in order to be valid. The word
(SEAL) was required to be placed after the signature of the signatory, the
person(s) or grantor(s) conveying an interest in real estate, on all instruments of
conveyance in order for the conveyance to be valid.
With the recent enactment of the bill adding N.C.G.S. 39-6.5, the seal of the
signatory is no longer required to effect a valid conveyance of an interest in real
estate, to include powers of attorney empowering an attorney-in-fact to convey
interests in real property in behalf of a principal. Of course, parties may still
continue to execute instruments of conveyance under seal to obtain presumption
of consideration created by sealed instruments.
The present requirement for all Department of Transportation instruments of
conveyance and forms to be executed under seal, to have the word (SEAL) for
all signatures, except for corporate transactions, will continue to be used even
though the recent statute eliminates the need for it. It will, now, be permissible to
accept any agreements or deeds not under seal since they will be valid under
this new statute. This statute does not eliminate the requirement for a notary
public to affix his/her seal when notarizing grantors’ signatures on instruments of
conveyance.
8.16 CERTIFICATION FOR RECORDATION
Before an instrument is entitled to be recorded, the Register of Deeds must
examine the certificates of acknowledgment and certify them to be correct. The
form for this certificate is as follows:
The foregoing Certificate(s) of
is/are certified to be correct. This instrument and this certificate are duly
registered on the
in Book
BY:
day of
, Page
at
,20
o’clock
M.
REGISTER OF DEEDS FOR
COUNTY
Deputy/Assistant - Register of Deeds
156
1. Example of grantor heading, execution and acknowledgment of
instrument by individuals:
Heading
THIS DEED, entered into this the 10 day of March, 2010, by and between James
Jones, and wife Mary Z. Jones hereinafter referred to as GRANTORS, and the
DEPARTMENT OF TRANSPORTATION…
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our seals
this the day and year first above written.
Signature of James Jones (SEAL)
James Jones
Signature of Mary Z. Jones (SEAL)
Mary Z. Jones
Notary
North Carolina,
I,
County
, a Notary Public for
County, North Carolina, do hereby certify that
James Jones and Mary Z. Jones
(Official Seal)
personally appeared before me this day and acknowledged the due
execution of the foregoing instrument.
Witness my hand and official seal this the 10
day of
March
, 20 10
.
Notary Public
My commission expires:
157
2. Example of execution of instrument by individuals involving a
subscribing witness
Heading
THIS DEED, entered into this the 10 day of March, 2010, by and between James
Jones, and wife Mary Z. Jones hereinafter referred to as GRANTORS, and the
DEPARTMENT OF TRANSPORTATION…
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our seals
this the day and year first above written.
Signature of James Jones (SEAL)
James Jones
Signature of Mary Z. Jones (SEAL)
Mary Z. Jones
Witness: Signature of John Smith(SEAL)
John Smith
Notary
STATE OF NORTH CAROLINA,
COUNTY
I,
(Official Seal)
a Notary Public of
County, North Carolina, certify that
John Smith
personally appeared
before me this day, and being duly sworn, stated in his/her presence
James Jones and Mary Z. Jones
signed the foregoing instrument.
Witness my hand and official stamp or seal, this the
March
, 20 10
.
Notary Public
My commission expires:
158
10
day of
3. Example of execution of instrument by individual unable to sign:
Persons unable to sign their names may execute instruments by making a mark.
The name of the signer should be written in the appropriate place leaving a
space between the given name and the surname. Above this space should be
written or typed the word "his" or "her", and below the space should be written or
typed the word "mark". The person signing should make his or her mark
(typically an X, in this space. The mark must be witnessed by someone, not a
spouse or an employee of the Department of Transportation, and beneath the
signature of such subscribing witness should appear the words "Witness to the
mark of __________________" shown as follows:
Heading
THIS DEED, entered into this the 10 day of March, 2010, by and between James
Jones, and wife Mary Z. Jones hereinafter referred to as GRANTORS, and the
DEPARTMENT OF TRANSPORTATION…
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our seals
this the day and year first above written.
His
James (X)
Mark
Jones (SEAL)
Signature of Mary Z. Jones (SEAL)
Mary Z. Jones
Witness to the mark of James Jones: Signature of John Smith(SEAL)
John Smith
Notary
North Carolina,
I,
County
, a Notary Public for
County, North Carolina, do hereby certify that
James Jones and Mary Z. Jones
(Official Seal)
personally appeared before me this day and acknowledged the due
execution of the foregoing instrument.
Witness my hand and official seal this the 10
day of
March
, 20 10
.
Notary Public
My commission expires:
159
4. Example of acknowledgment of instrument by individual in the
military:
On this the
day of
, 20
, before me
the undersigned officer, personally appeared
known to me to be serving in or with the Armed Forces of the United States and to be the person
whose name is subscribed to within the instrument, and acknowledged that he/she executed the same
for the purposes therein contained, and the undersigned does further certify that he/she is at the date
of this certificate a commissioned officer of the rank stated below and is in the active service of the
Armed Forces of the United States.
(Signature of Officer)
Name and Rank of Officer
Command
160
5. Example of grantor heading, execution and acknowledgment of
instrument by an official of the corporation without the execution of
the instrument by an attesting officer and without the affixing of a
corporate seal (New Method):
Heading
THIS DEED , entered into this the 10 day of March, 2010 , by and between
SMITH SAUSAGE COMPANY, INC., a North Carolina Corporation hereinafter
referred to as GRANTORS, and the DEPARTMENT OF TRANSPORTATION,
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our seal
this the day and year first above written.
SMITH SAUSAGE COMPANY, INC. A North
Carolina Corporation
BY:
Signature of Henry H. Smith
Henry H. Smith
President
Notary
North Carolina,
County
I,
(Official Seal)
, a Notary Public for
County, North Carolina, do hereby certify that
Henry H. Smith
personally came
before me this day and acknowledged that he/she is president of
SMITH SAUSAGE COMPANY, INC. , a corporation, and that
he/she,as president, being authorized to do so, executed the
foregoing on behalf of the corporation.
Witness my hand and official seal this the 10
day of
March
, 20 10
.
Notary Public
My commission expires:
161
6. Example of grantor heading, execution and acknowledgment of
instrument by a corporation by attesting officer (Traditional
Method):
Heading
THIS DEED , entered into this the 10 day of March, 2010 , by and between
SMITH SAUSAGE COMPANY, INC., a North Carolina Corporation hereinafter
referred to as GRANTORS, and the DEPARTMENT OF TRANSPORTATION,
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our seal
this the day and year first above written.
SMITH SAUSAGE COMPANY, INC. A North
Carolina Corporation
BY:
(CORPORATE SEAL)
ATTEST:
Signature of Henry H. Smith
Henry H. Smith
President
Signature of George G. Smith
George G. Smith
Secretary
Notary
North Carolina,
County
I,
(Official Seal)
, a Notary Public for
County, North Carolina, do hereby certify that
George G. Smith
personally came
before me this day and acknowledged that he/she is secretary of
SMITH SAUSAGE COMPANY, INC.
, a corporation, and that by
authority duly given and as the act of the corporation, the foregoing
instrument was signed in its name by its President
, sealed
With its corporate seal, and attested by himself/herself as its
secretary.
Witness my hand and official seal this the 10
day of
March
, 20 10
.
Notary Public
My commission expires:
162
7. Example of the grantor heading, execution and acknowledgment of
instrument by a limited liability company is shown as follows:
Heading
THIS DEED , entered into this the 10 day of March, 2010 , by and between
Green Hills, LLC, a limited liability company hereinafter referred to as
GRANTORS, and the DEPARTMENT OF TRANSPORTATION,
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our seal
this the day and year first above written.
GREEN FIELDS, LLC
BY:
Signature of John T. Smith
John T. Smith
Manager
Notary
North Carolina,
I,
(Official Seal)
County
, a Notary Public for
County, North Carolina, do hereby certify that
John T. Smith, MANAGER
of
GREEN FIELDS, LLC
, a limited liability company,
personally came before me this day and acknowledged the due
execution of the foregoing instrument on behalf of the company.
Witness my hand and official seal this the 10
day of
MARCH
, 20 10
.
Notary Public
My commission expires:
163
8. If the manager executing the instrument is a partnership, use the
following:
Heading
THIS DEED , entered into this the 10 day of March, 2010 , by and between
Green Hills, LLC, a limited liability company hereinafter referred to as
GRANTORS, and the DEPARTMENT OF TRANSPORTATION,
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our seal
this the day and year first above written.
GREEN FIELDS, LLC
BY: ABC COMPANY, A Partnership, MANAGER
BY:
Signature of Robert Cook
(SEAL)
Robert Cook, Partner
BY:
Signature of Ronald Pope
(SEAL)
Robert Pope, Partner
Notary
North Carolina,
County
I,
(Official Seal)
, a Notary Public for
County, North Carolina, do hereby certify that
Robert Cook and Robert Pope
General Partners in
ABC COMPANY
, a General Partnership, which
is Manager of
GREEN FIELDS, LLC
a limited liability company, personally came before me this day
and acknowledged the due execution of the foregoing instrument
on behalf of the company.
Witness my hand and official seal this the
10 day of
MARCH
, 20 10
.
Notary Public
My commission expires:
164
9. If the manager of the LLC executing the deed is the corporation, use
the following:
Heading
THIS DEED , entered into this the 10 day of March, 2010 , by and between
Green Hills, LLC, a limited liability company hereinafter referred to as
GRANTORS, and the DEPARTMENT OF TRANSPORTATION,
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our seal
this the day and year first above written.
GREEN FIELDS, LLC
BY: DIVISION CONTROLS, INC, MANAGER
BY:
(CORPORATE SEAL)
ATTEST:
Signature of Henry H. Smith
Henry H. Smith
President
Signature of George G. Smith
George G. Smith
Secretary
Notary
North Carolina,
County
I,
(Official Seal)
, a Notary Public for
County, North Carolina, do hereby certify that
George G. Smith
personally came
before me this day and acknowledged that he/she is Secretary of
DIVISION CONTROLS, INC
, a corporation, manager of
GREEN FIELDS, LLC
a limited liability company and
that by authority duly given and as the act of the corporation, the
foregoing instrument was signed in its name by its President, sealed
with its corporate seal, and attested by him/her as its Secretary, on
behalf of the said limited liability company.
Witness my hand and official seal this the
10
day of
MARCH
, 20 10
.
Notary Public
My commission expires:
165
10. Example of grantor heading, execution and acknowledgment of
instrument for a partnership:
Heading
THIS DEED , entered into this the 10 day of March, 2010 , by and between John
Jones and Henry H. Smith doing business as JONES-SMITH HARDWARE
COMPANY, A Partnership; Mary Smith, wife of Henry H. Smith, and Joyce
Jones, wife of John Jones hereinafter referred to as GRANTORS, and the
DEPARTMENT OF TRANSPORTATION,
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our seal
this the day and year first above written.
JONES-SMITH HARDWARE COMPANY A Partnership
BY:
Signature of Henry H. Smith (SEAL)
Henry H. Smith, Partner
BY:
Signature of John Jones
John Jones, Partner
(SEAL)
Signature of Mary Smith
Mary Smith
(SEAL)
Signature of Joyce Jones
Joyce Jones
(SEAL)
Notary
North Carolina,
County
I,
, a Notary Public for
County, North Carolina, do hereby certify that
Henry H. Smith and John Jones
doing business as
JONES-SMITH HARDWARE COMPANY
(Official Seal)
, a partnership,
personally came before me this day and acknowledged the due
execution of the foregoing instrument.
Witness my hand and official seal this the 10 day of
MARCH
, 20 10
.
Notary Public
My commission expires:
166
11. Example of grantor heading, execution and acknowledgment of
instrument for an executor of an estate (with will):
Heading
THIS DEED, entered into this the 10 day of March, 2010, by and between John
Jones, Executor for the Estate of James Smith, deceased hereinafter
referred to as GRANTORS, and the DEPARTMENT OF TRANSPORTATION…
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our seals
this the day and year first above written.
Signature of John Jones (SEAL)
John Jones, Executor of
the Estate of James Smith
Notary
North Carolina,
County
I,
(Official Seal)
, a Notary Public for
County, North Carolina, do hereby certify that
John Jones
,Executor for the Estate of
James Smith
, deceased, personally
appeared before me this day and acknowledged the due
execution of the foregoing instrument.
Witness my hand and official seal this the 10
day of
MARCH
, 20 10
.
Notary Public
My commission expires:
167
12. Example of grantor heading, execution and acknowledgment of
instrument for heirs and an administrator of an estate (no will):
Heading
THIS DEED, entered into this the 10 day of March, 2010, by and between John
Doe and wife, Elsie S. Doe, heirs of Jane Smith, deceased; Bob Jones,
Administrator of the Estate of Jane Smith, Deceased hereinafter referred to
as GRANTORS, and the DEPARTMENT OF TRANSPORTATION…
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our seals
this the day and year first above written.
Signature of John Doe (SEAL)
John Doe, Heir
Signature of Elsie S. Doe (SEAL)
Elsie S. Doe, Heir
Signature of Bob Jones (SEAL)
Bob Jones, Administrator of the
Estate of Jane Smith, Deceased
Notary
North Carolina,
County
I,
, a Notary Public for
County, North Carolina, do hereby certify that
John Doe and wife Elsie S. Doe, heirs of Jane
Smith, deceased, and Bob Jones,
Administrator of the Estate of Jane Smith,
Deceased,
(Official Seal)
personally appeared before me this day and acknowledged the
due execution of the foregoing instrument.
Witness my hand and official seal this the 10 day of
March
, 20 10
.
Notary Public
My commission expires:
168
13. Example of grantor heading, execution and acknowledgment of
instrument involving a guardianship:
Heading
THIS DEED, entered into this the 10 day of March, 2010, by and between Bobby
Ward hereinafter referred to as GRANTORS, and the DEPARTMENT OF
TRANSPORTATION…
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our seals
this the day and year first above written.
BOBBY WARD
BY:
Signature of Sammy Smith
Sammy Smith, Guardian for Bobby Ward
Notary
North Carolina,
I,
(Official Seal)
County
, a Notary Public for
County, North Carolina, do hereby certify that
Sammy Smith, Guardian for Bobby Ward
personally appeared before me this day and acknowledged the due
execution of the foregoing instrument.
Witness my hand and official seal this the 10
day of
March
, 20 10
.
Notary Public
My commission expires:
169
14. Example of heading, signature, and Notary If the title to the
property vests in the trustees then the instrument should be
signed as follows:
Heading
THIS DEED, entered into this the 10 day of March, 2010, by and between John
Smith, Ray Thomas, and Amanda Williams, Trustees for First Faith Church
hereinafter referred to as GRANTORS, and the DEPARTMENT OF
TRANSPORTATION…
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our seals
this the day and year first above written.
Signature of John Smith (SEAL)
John Smith, Trustee
for First Faith Church
Signature of Ray Thomas (SEAL)
Ray Thomas, Trustee for
for First Faith Church
Signature of Amanda Williams (SEAL)
Amanda Williams, Trustee
for First Faith Church
Notary
North
Carolina,
County
I,
(Official Seal)
, a Notary Public for
County, North Carolina, do hereby certify that
John Smith, Ray Thomas, and Amanda Williams, Trustees
for First Faith Church
personally appeared before me this day and acknowledged the due
execution of the foregoing instrument.
Witness my hand and official seal this the 10
day of
March
, 20 10
.
Notary Public
My commission expires:
170
15. If the title to the property vests in the minister, bishop, etc., the heading of
the instrument should be (Name of Minister), Minister of (Name of
Church) and should be signed as follows:
Heading
THIS DEED, entered into this the 10 day of March, 2010, by and between
Amanda Williams, Bishop of the First Faith Church hereinafter referred to as
GRANTORS, and the DEPARTMENT OF TRANSPORTATION…
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our seals
this the day and year first above written.
Signature of Amanda Williams (SEAL)
Amanda Williams, Bishop
for First Faith Church
Notary
North
Carolina,
County
I,
, a Notary Public for
County, North Carolina, do hereby certify that
Amanda Williams, Bishop of the First Faith Church
(Official Seal)
personally appeared before me this day and acknowledged the due
execution of the foregoing instrument.
Witness my hand and official seal this the 10
day of
March
, 20 10
.
Notary Public
My commission expires:
NOTE: In the Catholic Church, property is owned in the name of the diocesan
bishop. If a church or religious organization, a charitable or fraternal organization
has incorporated and title to the property vests with the corporation, a corporate
execution and acknowledgment should be used.
171
16. Example of acceptable heading, execution and acknowledgment
of instrument involving a county:
Heading
THIS DEED, entered into this the 10 day of March, 2010, by and between WAKE
COUNTY hereinafter referred to as GRANTOR, and the DEPARTMENT OF
TRANSPORTATION, an agency of the State of North Carolina, hereinafter referred to
as the DEPARTMENT; . . . . .
Signature
IN WITNESS WHEREOF, GRANROR, pursuant to a resolution dated
_______________, has caused this instrument to be signed in its corporate name by its
CHAIRMAN OF THE WAKE COUNTY BOARD OF COMMISSIONERS, its corporate
seal hereto affixed, and attested by it CLERK OF THE WAKE COUNTY BOARD OF
COMMISSIONERS, by order of the WAKE COUNTY COMMISSIONERS, this the day
and year first above written
Signature
WAKE COUNTY
(CORPORATE SEAL)
BY: (Signature of Chairman)
(Name of Chairman), Chairman of Wake County
Board of Commissioners
ATTEST: (Signature of Clerk)
(Name of Clerk), Clerk of Wake County Board of
Commissioners
North Carolina,
County
I,
(Official Seal)
, a Notary Public for
County, North Carolina, certify that
personally came before me this day
and acknowledged that he/she is the CLERK of the Wake
County Board Of Commissioners, and that by authority duly
given, the foregoing instrument was signed in its name by
, its CHAIRMAN of the Wake COUNTY
BOARD OF COMMISSIONERS, sealed with its corporate seal,
and attested by
as its CLERK.
Witness my hand and official seal this the 10 day of
March
, 20 10
.
Notary Public
My commission expires:
172
17. Example of acceptable heading, execution and
acknowledgment of instrument involving a city:
Heading
THIS DEED, entered into this the 10 day of March, 2010, by and between City of
Raleigh, hereinafter referred to as GRANTOR, and the DEPARTMENT OF
TRANSPORTATION, an agency of the State of North Carolina, hereinafter referred to
as the DEPARTMENT; . . . . .
Signature
IN WITNESS WHEREOF, GRANTOR, pursuant to a resolution dated
_______________, has caused this instrument to be signed in its corporate name by its
MAYOR, its corporate seal hereto affixed, and attested by its CITY CLERK, by
order of the Raleigh CITY COUNCIL, this the day and year first above written
City of Raleigh
BY: (Signature of Mayor)
(Name of Mayor), Mayor of City of Raleigh
(CORPORATE SEAL)
ATTEST: (Signature of Clerk)
(Name of Clerk), Clerk of the City of Raleigh
North Carolina,
County
I,
(Official Seal)
, a Notary Public for
County, North Carolina, certify that
personally came before
me this day and acknowledged that he/she is the CLERK of the
CITY OF
Raleigh
, and that by authority duly given, the
foregoing instrument was signed in its name by its MAYOR of the
CITY OF Raleigh, , sealed with its corporate seal, and attested by
as its CITY CLERK.
Witness my hand and official seal this the
10
day of
March
, 20 10
.
Notary Public
My commission expires:
173
18. Example of grantor heading, execution and acknowledgment of
instrument involving a political subdivision such as Board of
Education (NOTE: May be a County Board or a City Board):
Heading
THIS DEED, entered into this the 10 day of March, 2010, by and between WAKE
COUNTY BOARD OF EDUCATION hereinafter referred to as GRANTOR, and the
DEPARTMENT OF TRANSPORTATION, an agency of the State of North Carolina,
hereinafter referred to as the DEPARTMENT; . . . . .
Signature
IN WITNESS WHEREOF, GRANTOR, pursuant to a resolution dated
_______________, has caused this instrument to be signed in its corporate name by its
CHAIRMAN OF THE WAKE COUNTY BOARD OF EDUCATION, its corporate seal
hereto affixed, and attested by it CLERK OF THE WAKE COUNTY BOARD OF
EDUCATION, by order of the WAKE COUNTY EDUCATION , this the day and year first
above written
WAKE COUNTY BOARD OF EDUCATION,
(CORPORATE SEAL)
BY: (Signature of Chairman)
(Name of Chairman), Chairman of Wake County
BOARD OF EDUCATION
ATTEST: (Signature of Clerk)
(Name of Clerk), Clerk of Wake County Board of
Education
North Carolina,
County
I,
, a Notary Public for
County, North Carolina, certify that
personally came before me this day
and acknowledged that he/she is the CLERK of the Wake
County Board Of Commissioners, and that by authority duly
given, the foregoing instrument was signed in its name by
, its CHAIRMAN of the Wake COUNTY
(Official Seal)
BOARD OF EDUCATION, sealed with its corporate seal,
and attested by
as its CLERK.
Witness my hand and official seal this the 10 day of
March
, 20 10
.
Notary Public
My commission expires:
174
19. Example of the grantor heading, execution and acknowledgment of
the instrument by trustees under a revocable or irrevocable trust is
as follows:
Heading
THIS DEED, entered into this the 10 day of March, 2010, by and between Nancy
McGregor, Trustee for the Peter McGregor (Revocable)or (Irrevocable)
Trust dated September 25, 2009 hereinafter referred to as GRANTORS, and
the DEPARTMENT OF TRANSPORTATION, an agency of the State of North
Carolina, hereinafter referred to as the DEPARTMENT; . . . . .
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our
seals this the day and year first above written.
Signature of Nancy McGregor (SEAL)
Nancy McGregor, Trustee for the Peter
McGregor (Revocable)or (Irrevocable)
Trust dated September 25, 2009
Notary
North Carolina,
I,
County
, a Notary
Public for
County, North Carolina, do hereby certify that
Nancy McGregor, Trustee for the Peter McGregor
(Revocable)or (Irrevocable) Trust dated September
25, 2009
(Official Seal)
personally appeared before me this day and acknowledged the due
execution of the foregoing instrument.
Witness my hand and official seal this the
10
day
of
March
, 20 10
.
Notary Public
My commission expires:
175
20. The heading, execution and acknowledgment of an instrument
involving a power of attorney is as follows:
Heading
THIS DEED, entered into this the 10 day of March, 2010 , by and between Lucy
R. Gantz, through her Attorney in Fact, Joseph Cook, hereinafter referred to
as GRANTORS, and the DEPARTMENT OF TRANSPORTATION, an agency of
the State of North Carolina, hereinafter referred to as the DEPARTMENT; . . . . .
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our
seals this the day and year first above written.
Joseph Cook Signs the name of
Lucy R. Gantz
Lucy R. Gantz
BY: Joseph Cook Signature
Joseph Cook, Attorney in Fact
(SEAL)
(SEAL)
ATTORNEY-IN-FACT
NORTH CAROLINA,
COUNTY
I,
Carolina, do hereby certify that
a Notary Public for
County, North
Joseph Cook
, attorney-in-fact for
personally appeared before me this day, and being by me
Lucy R. Gantz
duly sworn, says that he/she executed the foregoing and annexed instrument for and in behalf of
Lucy R. Gantz
, and that his/her authority to execute and acknowledge said instrument
is contained in an instrument duly executed, acknowledged, and recorded in the office of the
Register of Deeds, Wake
County, North Carolina, on the 9
day of June
, 20 07
in Book 1100 at Page 230 , and that this instrument was
executed under and by virtue of the authority given by said instrument
Joseph Cook
granting him/her power of attorney; that the said
(Official Seal)
acknowledged the due execution of the foregoing and annexed
instrument for the purposes therein expressed for and in behalf of the
said Lucy R. Gantz
Witness my hand and official seal, this the
day
of
, 20
.
Notary Public
My commission expires:
176
21. Execution of Deed by holder of Deed of trust
Heading
THIS DEED, entered into this the _____day of ____________, ____ , by and
between North America Bank, A Corporation, and Richard Dawkins,
Trustee for North America Bank hereinafter referred to as GRANTORS, and
the DEPARTMENT OF TRANSPORTATION, an agency of the State of North
Carolina, hereinafter referred to as the DEPARTMENT; . . . . .
Signature
IN WITNESS WHEREOF, we have hereunto set our hand and affixed our
seals this the day and year first above written.
North America Bank
(Corporate Name)
(SEAL)
Richard Dawkins,
BY:
(President)
ATTEST:
Trustee in Deed of Trust
recorded in Book 1200 at
page 345 , Wilson County
Registry.
(Secretary)
(CORPORATE SEAL)
A corporate acknowledgment should be used for North America Bank and an
individual acknowledgment should be used for the Trustee.
177
Chapter 9 SPECIAL CONDITIONS
AND SITUATIONS
In the negotiation for rights of way, many special conditions and situations arise,
some of which, by reason of frequency of occurrence are covered by policy or by
practice established by long usage. Some of these situations are set out in more
detail in the following paragraphs.
Other situations may be of a unique or unusual nature requiring a decision for
each individual case. In the unusual situation not covered by policy and
procedure, the Agent should review the particular situation with his/her
supervisor to determine the position of the Department before proceeding with
acquisition. Solutions to right of way problems may need to be tailored to fit the
circumstances and situation and in some instances appropriate improvisations
may be required.
9.01 DISPOSITION OF BILLBOARDS
The current procedure, as outlined herein for the disposition of billboards/outdoor
advertising signs in the context of eminent domain acquisitions for highway
purposes, involves those billboard structures which are leased or otherwise used
for the purpose of advertising a product, a message or a business to the traveling
public and are located on the proposed right of way of an active highway project.
They are located off-premise, meaning the billboards are advertising business
activities not located on the property or premises where the billboards are
located. Billboards may be allowed by permit by the Department of
Transportation and are regulated by the Administrative Procedures Act (APA) on
the existing National Highway System and the pre-existing Federal Aid Primary
System highways. The terms billboards and signs are synonymous and may be
used interchangeably in this text. Billboards may fall under the classification of a
junior poster panel, a standard poster panel, a painted bulletin, a monopole or a
miscellaneous sign.
On-premise signs advertise businesses and their activities, which are physically
conducted on the property upon which the sign is located, and their relocation or
purchase will not be considered by these procedures.
Disposition of billboards on active highway projects is governed by Chapter
133, Article 2, titled Relocation Assistance, and Chapter 136, Article 9, General
Statute 136-103 to 136-121.1 titled Condemnation, and is not to be confused
with the acquisition by purchase of billboards under Article 11 General Statute
136-126 to 136-140.5 titled Outdoor Advertising Control Act, the latter resulting
from the Federal Highway Beautification Act.
178
THE FOLLOWING CRITERIA APPLIES TO BILLBOARDS:
Billboards are considered removable personal property and will be
moved and/or relocated from the proposed right of way and or easement
limits under the Relocation Assistance Program. Trade fixtures, by law,
are considered removable personal property.
•
Relocation benefits must be offered to all billboards having a valid
permit from DOT and on which no legal action has been taken to
remove them from the property on which they are situated.
•
The billboard owner shall be given at least a ninety-day (90-day)
notice in which to remove the billboard from the proposed right of
way or easement.
•
In the acquisition of land or real property on which a billboard is
situated, the billboard owner’s leasehold or other interest, if any, in
the property must be considered and acquired in addition to the
underlying fee interest of the property owner prior to the relocation
of the billboard (and giving of the 90 day notice). The exception to
this is when the billboard can be relocated onto the remaining
property of the lessor/ property owner, therefore not affecting the
billboard owner’s leasehold interest.
•
An oral or written lease for duration of 3 years or less can be valid,
even if the written lease is not recorded. A written lease for duration
for three (3) years or more must be recorded to be valid. All written
leases must meet these basic requirements in order to be valid:
names of the lessors and lessees must be stated, contain a
description of the land being leased, state the length of the lease and
state a consideration or rental amount.
•
Acquisition of the billboard owner’s leasehold interest will be
acquired separately from the acquisition of the right of way from the
underlying fee owner of the land on which the billboard is located.
Only with respect to billboard claims may the acquisition of the
leasehold interest be acquired separately from the acquisition of the
right of way from the underlying fee owner of the land on which the
billboard is located.
•
Illegal billboard or signs are not eligible for relocation benefits.
•
In the project acquisition schedule, billboards shall be treated as
“displacees” requiring 90-day notices and be acquired in compliance
with key scheduled dates.
179
CLAIMS INVOLVING A VALID LEASE AND THE BILLBOARD MUST BE
MOVED TO SUBSTITUTE PROPERTY (NOT ADJOINING OR ADJACENT TO
ITS PRESENT LOCATION)
1. A nonconforming billboard can be relocated to a conforming area but cannot
be reestablished at a new location that has a nonconforming use.
2. The Agent will, first, obtain a copy of the permit issued to the billboard owner
by the District Engineer for each billboard affected by the acquisition of right of
way for a particular project.
3. The Agent will ascertain from the permit whether the billboard is considered
conforming or nonconforming.
4. For the conforming billboards, the Agent will ascertain from the District
Engineer whether the permit requirements can be met after right of way has been
acquired from the property owner for the project. Permit requirements are
outlined in the DOT’s Outdoor Advertising Manual. If the permit requirements
cannot be met, the billboard will become ‘nonconforming’ and will be required to
be relocated to a substitute location. In cases where there is no remaining
property on which to relocate a conforming billboard or where the property
owner/lessor will not allow the billboard to be relocated to remaining property, the
billboard will be required to be relocated to a substitute location.
5. The Agent will establish if there is an existing local ordinance that will prohibit
the relocation of a conforming billboard to adjacent property thus making the
billboard ‘nonconforming’ in the after situation and will be required to be relocated
to a substitute location.
6. For all nonconforming billboards, the Agent will obtain all possible lease
information available in order to establish the presence of a valid lease. The
billboard owner will be requested, in writing, to furnish copies of leases or
memorandums of leases for evaluation purposes in determining the presence of
a leasehold interest in the property or right of way being acquired. If the billboard
owner refuses to furnish copies of leases or memorandums of leases, the Agent
shall check courthouse records for recorded lease information and contact the
property owners for any other available lease information.
7. The Agent shall review all available permit and lease information with the Area
Negotiator who will complete a Leasehold Determination form (FRM9-B)
indicating how any leasehold interest should be handled. On questions
concerning the validity of a lease, the Attorney General’s Office should be
consulted for a ruling or determination prior to the completion of the form.
8. On those particular parcels where it is determined that a leasehold interest
180
exists, the Agent will request an appraisal from the Appraisal Section for the
billboard owner’s leasehold interest separate and apart from the property owner’s
value interest. The Leasehold Determination Form and all other supporting
material shall be Provided at the time of appraisal request. See Section 5.042.12
of this Manual for appraisal of leasehold interests.
9. The Agent shall obtain estimates of moving costs for each billboard to
establish relocation benefits for the billboard owner with the costs allocated
between the cost to take the sign down and the cost to reinstall it or put it back
up.
10. Upon receipt of the leasehold valuation or appraisal, the Agent will make an
offer to the billboard owner to acquire the leasehold interest separate and apart
from the offer made to the property owner for the underlying fee interest of the
property and advise the billboard owner of eligible relocation benefit entitlements.
The billboard owner’s offer may be ‘zero dollars’ ($0.00) or reflect some actual
dollars or “bonus value” amount.
11. If the billboard owner accepts the offer for the leasehold or other interest in
the property, the Agent will prepare and have the billboard owner execute an
instrument for the release or acquisition of the leasehold and all other interests, if
any, in the property. See Lease Release, FRM7-M.
12. If the billboard owner refuses to accept the offer for the leasehold or other
property interest, the Agent will request the Attorney General’s Office to file
condemnation on the billboard leasehold or other property interest, separate and
apart from the underlying fee interest of the property owner.
13. After obtaining a release or conveyance of the leasehold and any other
interest, or after condemnation of same, the Agent will notify the billboard owner
that the billboard is to be moved on a specific date at least 90 days hence and
that the billboard is eligible for the receipt of relocation benefits.
CLAIMS INVOLVING A VALID LEASE AND THE BILLBOARD CAN BE
RELOCATED ON THE SAME/REMAINING PROPERTY
In those instances where the billboard is delineated as “Conforming” on DOT’s
permit, and where it does not conflict with a local ordinance prohibiting its
relocation and where it can be relocated to the remainder of the
adjacent/adjoining property of the property owner/lessor with mutual consent of
the property owner/lessor and the billboard owner, the billboard owner is entitled
to receive the costs associated with the moving and relocation of the billboard
from the right of way being acquired. A 90-day notice to the billboard owner is
required, but will not be given until after acquisition of the fee interest from the
property owner (lessor) by settlement or condemnation has occurred.
Condemnation of the billboard owner’s interest would not be filed in this situation.
181
CLAIMS INVOLVING A VALID LEASE WHICH EXPIRES PRIOR TO PROJECT
LETTING
On those particular parcels where it is determined that the leasehold interest of
the billboard has expired or is terminable prior to the letting of the project, and
where the DOT has acquired the underlying fee interest from the property owner
and is now considered the landlord, the Agent will take steps necessary to
exercise the termination of the provisions of the lease through notification to the
billboard owner that the leasehold interest is extinguished or terminates prior to
the project letting, that no leasehold or other interest in the property is being
considered, that the billboard is to be moved on a specific date at least 90 days
hence from the date of extinguishment of the lease and that the billboard is
eligible to receive relocation benefits.
CLAIMS WHERE NO VALID LEASE CAN BE VERIFIED
On those parcels where no valid lease can be verified, the Agent will notify the
billboard owner that there is insufficient information upon which to base an
appraisal of the purported interest or upon which to negotiate the acquisition of
same. After acquisition of the fee interest of the property from property owner
(lessor) by settlement or condemnation, the Agent will notify the billboard owner
that the billboard is to be moved on a specific date at least 90 days hence and
that the billboard is eligible to receive relocation benefits. Normally,
condemnation will not be filed without a formal valid lease.
IF THE BILLBOARD IS NOT REMOVED WITHIN THE 90-DAY PERIOD
If the billboard owner has not made any effort and/or has not moved the billboard
from the proposed right of way and/or easement within the 90day period, the
billboard will be considered to have been abandoned by the billboard owner and
the DOT will remove the billboard from the proposed right of way or easement at
its discretion. After the 90-daynotification period expires, the Agent will send out
a letter, by certified mail, to the billboard owner advising that the billboard is, now,
considered to have been abandoned by the billboard owner, that the billboard will
be removed by the DOT and or its contractor within 30 days from the date of the
letter and that the billboard may still be eligible for some relocation benefits. The
abandoned billboard may be placed in the Roadway Contract as a Series 215,
Demolition of Buildings and Appurtenances, item to be demolished/removed by
the roadway contractor or may be removed by a demolition contractor.
Billboards will not be removed by DOT forces nor will they be stored at a DOT
facility or at another location at DOT’s expense.
BILLBOARDS PARTIALLY WITHIN R/W OR EASEMENT
If a billboard which cannot be relocated to the remaining property of
182
lessor/property owner lies partially in the proposed right of way and/or easement
and partially outside of the right of way and/or easement, and which has not
been relocated after proper notification, the Agent will obtain permission from
the lessor/property owner to enter the remaining property outside the proposed
right of way to the extent necessary for the DOT, or its contractor, to remove the
billboard. If the property owner refuses to grant permission to exceed the right
of way to remove that portion of a billboard outside of the right of way and/or
easement, the Agent will request an agenda item, through the State Negotiator,
for the Board of Transportation to grant the authority for the DOT, or its
contractor, to exceed the right of way and/or easement to the extent necessary
to remove the billboard. Billboard removal items to be included in the Roadway
Contract shall be denoted and submitted to the State Negotiator with the
clearing and grubbing and building removal items as indicated in the Right of
Way Schedule.
BILLBOARDS NOT ON THE FEDERAL AID OR PRIMARY SYSTEM
PROJECTS
On some nonfederal aid primary designated highways or roads, billboards or
signs may be encountered where DOT permits are not required: however,
permits may be required from a local governing entity. Billboards located within
proposed rights of way must be re-established on the remaining, adjoining
property or on substitute property and will be eligible for relocation benefits.
9.02 WETLANDS
The current federal policy of no net loss of existing wetlands and protected
species areas requires the Department of Transportation to implement plans for
the mitigation of wetlands and the purchase of replacement sites prior to
issuance of a permit for the construction of a highway project which impacts
existing wetlands. The regulatory entity which ultimately approves mitigation
plans and issues permits is the U. S. Army Corps of Engineers. No permits are
issued until an approved plan of action to replace the impacted areas is
developed. Other agencies involved with site selection and approval include the
Division of Water Quality of the North Carolina Department of Environment,
Health and Natural Resources: Coastal Area Management (CAMA): North
Carolina Wildlife Commission: US Fish and Wildlife Service and the North
Carolina Department of Transportation Planning and Environmental Branch. A
wetland, according to the 1986 Emergency Wetlands Resource Act, is defined as
land that has a predominance of hydric soils and that is inundated or saturated
by surface or groundwater at a frequency and duration sufficient to support, and
that under normal conditions does support, a prevalence of hydrophytic
vegetation typically adapted for life in saturated soil conditions. (emphasis added)
As specified by the definition, wetlands are characterized by: 1) hydric soils, 2)
183
wetland hydrology, and 3) hydrophytic vegetation. Generally, the replacement
sites for wetlands mitigation are considerably larger than the areas being
disturbed and impacted by a highway project. The size of replacement wetland
areas is measured in terms of needed credits. The required credits depend upon
the particular characteristics and delineation of the impacted wetlands and upon
the best acceptable method for mitigation. A single credit would be the ratio of
the area, in acres, required to replace the loss of a single unit area, usually one
acre, of wetland. Mitigation of wetlands may fall in the category of creation of a
wetland area from a previously non-wetland usage requiring a 2:1 ratio,
restoration or conversion of a previous wetland area back to a wetland usage
requiring a 3:1 or higher ratio and/or the preservation of existing designated
wetland areas requiring a 10:1 ratio. A particular site selected for the restoration
of a previously converted wetland may include some of each type of mitigation
thereby lowering the total area, and credits needed to fulfill the requirements for a
proposed mitigation plan.
The process of acquiring replacement wetland sites is initiated by request from
the Project Development & Environmental Analysis (PDEA) Branch to the
Manager of Right of Way to gain access by an entry agreement, FRM9-C
Wetlands Agreement for Entry, onto potential sites for evaluation. The purpose
of the evaluation is to determine that hydric soils, water levels and other wetland
characteristics are present for restoration on a particular potential site and that
impacts on adjacent community lands can also be evaluated. Potential sites are
required to be located within the same river basin as the proposed roadway
project. The request for evaluation will be assigned to the appropriate Division
Right of Way Office by the State Negotiator.
The Division Right of Way Office will verify the correct ownership of the proposed
mitigation site(s) and will contact each property owner to determine their
willingness to sell the proposed mitigation site to the Department of
Transportation and to obtain a written entry permit from the property owner so a
site evaluation can be conducted. Owners adjacent to the proposed mitigation
site, on occasion, may be involved in order to gain access to the site and for
borings to determine water levels and flow adjacent to the proposed site. Upon
securing the entry permit, the Agent will immediately notify PDEA through the
State Negotiator’s Office.
Upon completion of a favorable site evaluation, the Right of Way Branch will be
requested to have the site(s) appraised and obtain an option to acquire the
site(s). Often the acreage of the site for the purpose of obtaining an option must
be computed by the Right of Way Agent subject to change/revision after a
property/site survey has been completed. A survey may be completed after a
specific unit monetary value for the computed/estimated acreage has been
agreed upon and the property owner(s) has duly executed an option for the
mitigation site.
184
Generally, the Department will not acquire wetland mitigation sites by
condemnation or under the threat of condemnation. These acquisitions will be
considered voluntary transactions and the Department will not acquire any sites if
negotiations fail to result in an amicable agreement with the landowner and if the
landowner had been advised accordingly in writing. Under the provisions of 49
CFR 24.101(a)(1) which deals with voluntary transactions, the Department is not
limited by the current $10,000 appraisal waiver threshold.
In some instances where a proposed wetland mitigation site lies adjacent to a
highway project, the Department may elect to acquire that site under the threat of
condemnation. Since acquisition, in this case, would not be considered
"voluntary", normal acquisition procedures, including an appraisal, would be
followed.
For the case of a partial acquisition from a tract of land for a mitigation site, the
entire property is to be appraised on a before and after basis in order to
determine its value. In most zoning jurisdictions, wetlands will contribute to the
density use of the uplands and the sale of the wetlands could contribute to a
lesser density usage for the remainder.
Funds for the purchase of wetlands may either be provided through a normal
project Right of Way Authorization or by a specific parcel authorization. In the
case of specific parcel funding, an estimated value of the mitigation site
acquisition will be necessary prior to Board of Transportation approval of the
funding. A state wide project number has been established solely for the
appraisal of specific parcels to expedite the acquisition of a site. In all cases, a
wetland mitigation parcel will have a WM suffix assigned for future identification,
for example: R-2245 001WM.
9.03 STREAM MITIGATIONS
Under the provisions of the Clean Water Act and North Carolina Statutes, the
Division of Water Quality of the North Carolina Department of Environment and
Natural Resources and the United States Army Corps of Engineers require the
Department of Transportation to procure conservation easements to mitigate the
impacts of highway construction upon streams and other valuable natural areas.
The methods of mitigation or compensation for impacts to streams include:
1.
Restoration. Restoring a previously damaged stream channel, such as
one that has been channelized and straightened for drainage, to a more
natural condition to replace the values of the stream being impacted.
2.
Enhancement. Enhancing a functional stream by enlarging an existing
185
buffer zone, or diversify the vegetative community, thereby increasing the
habitat for fish and wildlife.
3.
Preservation. Acquiring a conservation easement, purchase, or in other
ways protect a stream to prevent further damage.
4.
Any combination of these activities.
Conservation Easements for stream mitigation purposes will be acquired in
accordance with Uniform Act requirements and more specifically under the
provisions of 49 CFR 24 101(a)(1) which deal with voluntary transactions. On
stream mitigation projects, the Department will not acquire any property by
condemnation or under the threat of eminent domain. In other words, the
acquisitions will be voluntary transactions and the Department will not acquire
any property if negotiations fail to result in an amicable agreement with the
landowner. Since the acquisitions are voluntary, the Department is not limited by
the current $10,000 appraisal waiver threshold. All conservation easements for
the stream mitigation program may be valued and acquired by the appraisal
waiver procedure.
Acquisition procedures for stream mitigation sites are outlined as follows:
1.
The Project Development and Environmental Analysis (PDEA) Branch will
identify lands which are ideal for mitigation activities and so advise the
Right of Way Branch of the specific river basin where these potential
mitigation sites will be located. Work order numbers for appraisals and
mitigation project acquisition activities will be established and furnished
through PDEA and Project Management. A work order along with a TIP
number having a "WM" suffix will be established for all pre-negotiation
activities up to and including appraisals. For acquisition activities, i.e.,
making offers, negotiations, settlement and closure of claims, a TIP
project number will be established which will carry a "WM" suffix and will
be parcel specific. For example: R-2245WM 001
2.
The Area Appraiser responsible for the river basin area where the
identified mitigation sites are located will obtain a market study for each
county or combination of counties in which the sites are located. The
purpose of the market study is to determine fair market unit land values
(square footage, linear footage and/or per-acre units) which can be
applied to any potential mitigation site in that county. After completion, the
market study and their values will be reviewed and approved for
negotiation purposes by the Area Appraiser or designated Review
Appraiser.
186
3.
After receipt of the market studies, the studies will be forwarded to the
appropriate Division Right of Way Offices which would handle acquisition
while a summary of the unit values for land (square footage, linear footage
and/or per-acre units) for each of the counties located in a particular river
basin will be forwarded to the PDEA Unit. A PDEA representative will
make initial contacts with landowners of identified sites to see if the
landowners are willing to participate in the Stream Mitigation Program. A
Stream Mitigation Program Brochure, FRM9-D will be presented to each
landowner. In addition the PDEA representative will give each landowner
who agrees to participate in the Stream Mitigation Program a letter of
intent, FRM9-E which informs each landowner of the acquisition process
and the unit value which will be the basis of compensation to be paid for
the conservation easement after the final design of the of the mitigation
site has been completed. The landowner will be requested to sign the
letter of intent acknowledging that he/she agrees to participate in the
Stream Mitigation Program. Copies of signed letters of intent for a
mitigation site will be forwarded to the appropriate Division Right of Way
Office for use in negotiations. As stated in the letter of intent, participation
is entirely voluntary and the landowner will not be pressured or forced to
participate in the program. If the landowner(s) decides not to participate in
the program, no further efforts to acquire the property on that particular
mitigation site will be made and acquisition for other potential sites will be
pursued.
4.
After a commitment by the property owners to participate in a designated
mitigation site, as evidenced by signed letter of intent, PDEA will proceed
with a mitigation design plan for that particular site. Upon receipt of the
completed plans for a mitigation project from PDEA, the Agent will
designate the parcel numbers for a particular mitigation project. Since
several mitigation sites may be included in a single work order, it is
suggested that the mitigation sites be numbered in the order received or
worked and the parcel numbers be assigned by letters to a particular site
number. For instance, the first site received or worked would be
numbered 001, the second would be numbered 002, and so forth, with the
parcels being designated alphabetically by letter like so: 001A, 001B,
001C, etc., for the first site; 002A, 002B, 002C, etc., for the second site
and continuing as such.
5.
After designating the parcel numbers for a mitigation site plan, the Agent
will provide the names and parcel numbers of the claimants on each
particular mitigation site to the PDEA representative who will, in turn,
obtain authorization, from Project Management, for acquisition of the
parcels and establishing a TIP work order for charges of acquisition
activities.
6.
While awaiting authorization for acquisition, the Agent will prepare a Right
187
of Way Claim Report (FRM4-N) for each parcel using the required mitigation easement areas and the land unit values from the market study for
the county in the appropriate impacted river basin. After approval of the
Right of Way Claim Report by an appropriate reviewer, other than the
person preparing the report, or by supervisory personnel, the Agent will be
ready to make an offer to the landowner upon receipt of authorization for
acquisition of the mitigation easements.
7.
Prior to contacting the landowner, the Agent will prepare a FRM9-F
(Summary Statement/Offer to Purchase Real Property) in which the
amount of the approved offer amount will be stated along with a required
statement informing the landowner that the Department will not acquire
the property if negotiations fail to result in an agreement.
8.
In addition, the Agent will prepare a description of the easement area to
be acquired from the mitigation project design plans furnished by PDEA.
A survey prepared by the Location & Surveys Unit may be required. This
description will be inserted into or attached to a Conservation Easement
form prepared by the Attorney General’s Office’. The PDEA representative will outline the provisions and conditions for that easement and
provide the Agent with a draft Conservation Easement to be finalized
before the offer is made to the landowner. The Agent should have verified
the ownership of the land being acquired for reference in the Conservation
Easement.
9.
After authorization of acquisition, the Agent, accompanied by the PDEA
representative, will contact the landowner making the offer to purchase the
mitigation easement area and presenting the landowner with the Summary
Statement/Offer to Purchase Real Property form. A Stream Mitigation
Negotiating Diary form, FRM9-G, will be used for this contact and any
subsequent negotiating contacts and includes affidavits for the Agent to
sign prior to the initial contact and after settlement.
If the landowner agrees to settle, the Agent will have the landowner
execute the Conservation Easement. Acquisitions will be handled in the
same manner as regular highway right of way acquisitions, including
adjustments, but excepting any condemnations.
If all owners of a mitigation site execute Conservation Easements thereby
completing acquisition for that particular stream mitigation project, the
Agent shall submit Final Reports for the processing of these claims for
payments and finalizing the acquisition. In the event all owners do not
convey the needed Conservation Easements for the stream mitigation
project, all acquisition activities for the stream mitigation project shall
cease, upon approval by the PDEA representative. All owners will be
notified that the mitigation project cannot be completed and any executed
188
Conservation Easements shall be returned to them. No claims for
payments should have been processed for payment.
10.
The final report packets will contain the Final Report Checklist, Final
Report forms, Stream Mitigation Negotiating Diary, Summary
Statement/Offer to Purchase form, Conservation Easement, completed
Taxpayer ID form, Right of Way Claim Report, Letter of Intent, any
administrative adjustment approvals, mitigation site plans and other
pertinent negotiating documentation.
11.
The check should be mailed to the landowner with the appropriate cover
letter and the claim closed in the same manner as similar right of way
acquisitions. In the event the check is delivered to the landowner by the
Agent, the Warrant Delivery Certification (see FRM12-D in this Manual)
should be modified to delete the statement regarding the proration and
refund of property taxes by the Department. As mentioned in the Stream
Mitigation Program brochure, property tax reductions may be available to
the landowner with the conveyance of a conservation easement but this
availability would solely be determined by the county tax offices. No tax
proration is made by the Department for stream mitigation easements.
9.04 APPRAISAL OF CONTAMINATED RIGHTS OF WAY
On claims where the DOT’s Geotechnical Unit has confirmed the existence of
soil contamination within the proposed right of way, the appraisal on that
particular claim will be made on the basis of being "as clean" or if contamination
did not exist. The Geotechnical Unit will provide a report and recommendation to
the Right of Way Branch indicating whether the right of way should be acquired
through Fee Simple or by permanent easement. The report will also indicate the
amount, if any, of cleanup costs that should be deducted from the offer and
settlement. The offer to the property owner for proposed right of way containing
contaminated soils will be the amount of the approved "as clean" appraisal less
the recommended clean-up costs. Prior to the offer for acquisition of the right of
way, it is desirous that the property owner be served with a Notice of Violation
(NOV) by the Environmental Management Division of the Department of
Environment, Health and Natural Resources so the party responsible for the
contamination is identified. If the property owner satisfactorily cleans up or
remediates the soil contamination in accordance with regulatory procedures prior
to the acquisition of the right of way, by settlement or condemnation, the offer to
the property owner will be based on the approved "as clean" appraisal.
The deduction is the estimated cost of cleanup or remediation of the soil
contamination in the proposed right of way established by the Geotechnical Unit
based on the levels of contamination derived from an environmental investigation
of the site and from costs of past remediation of contaminated claims. If the
189
actual cost of remediation exceeds the amount of the deduction for the estimated
clean-up cost, no additional deduction or amount will be expected to be paid by
the property owner. If the actual cost of remediation is less than the deduction for
the estimated clean-up cost, the difference in these amounts will be refunded to
the property owner either by direct payment in the event of a previous settlement
or an additional deposit if the claim is still in litigation.
In negotiating a claim involving soil contamination in the right of way and
involving a deduction for clean-up costs, the Agent will advise the property owner
of this procedure for acquisition of right of way involving soil contamination on the
initial contact and will state the amount of the clean-up cost deduction on the
summary statement/offer letter to the property owner. If settlement is reached
with the property owner, a statement will be placed in the special provisions
section of the easement stating the amount of the deduction and the
circumstances necessary for a refund. Note that where the Geotechnical Unit
recommends that the right of way be acquired by permanent easement,
permanent easement will be used whether the right of way is acquired by
settlement or condemnations. This will minimize the Department’s liability for
the contamination. Be advised that the DOT believes the issue of groundwater
contamination encountered on claims continues to remain the responsibility of
the property owner and does not consider this issue in the acquisition of rights of
way.
9.05 UTILITIES - GENERAL
The Department of Transportation has the responsibility for maintaining the rights
of way of highways under its jurisdiction as necessary to preserve the integrity,
visual quality, operational safety, and function of the highway facility. The
Department has various degrees of authority to regulate the use of utilities on
highways, and the utility companies also have various degrees of authority to
install their lines and facilities on the rights of way of public roads and streets.
Since the location and manner in which utility facilities cross or otherwise occupy
highway rights of way can materially affect the visual quality, safe operation, and
maintenance of the highway, it is necessary that such use and occupancy be
authorized and regulated.
In order for the Department to regulate the use of highway rights of way on all
highways under its jurisdiction, uniform policies and procedures have been
established stipulating the conditions under which existing, proposed, adjusted,
or relocated utilities may be accommodated. These policies and procedures are
contained in a policy statement entitled, POLICIES AND PROCEDURES FOR
ACCOMMODATING UTILITES ON HIGHWAY RIGHTS OF WAY. The intent of
these policies and procedures is to establish and administer reasonable uniform
utility accommodation practices in the interest of developing and preserving safe
190
roadsides and of minimizing possible interference and impairment to the
highway, its structure, visual quality, safe operation, and maintenance. These
policies and procedures are not made part of this Manual; however, copies of or
information pertaining to these policies and procedures may be obtained from the
Utilities and Encroachments Engineering Unit Utilities and Encroachments
Engineering Unit in Raleigh.
The before-mentioned accommodation policies are for use by both the
Department and utility companies in accommodating utilities on all statemaintained roads and highways.
9.06 THE UTILITIES AND ENCROACHMENTS ENGINEERING
UNIT
With the exception of utility conflicts on maintenance projects, certain statefinanced projects and some Division (DDC & DDL) projects, the Utilities and
Encroachments Engineering Unit will administer the adjustment and relocation of
utility conflicts on all highway projects. The Utilities and Encroachments
Engineering Unit is within the Preconstruction Unit of the Division of Highways
and is led by the State Utilities Manager.
In the early planning phase of the project, agents from the Utilities and
Encroachments Engineering Unit will determine the utility right of way status;
conduct on-the-site utility inspections, determine what utilities exist, which utilities
must be relocated and where. They will recommend to the Design Engineer,
utility easements (PUE, AUE, and DUE) to be shown on the plans. At the Initial
Field Inspection for the project, The utility agents should be present, and any
needed utility easements should be shown on the project plans. If either the
utility agent or their representative is not present, or needed utility easements are
not shown on the plans, the State Negotiator or Assistant State Negotiator should
be contacted. The Division R/W Agent should examine the utility easements
shown on the project plans just as he/she would any other design feature, and
give input as to the cost and effects of the easements shown.
It is the objective of the Right of Way Branch to obtain parcels needed for utility
relocation early in the r/w schedule, so that utility relocation may be
accomplished prior to commencement of construction. Prior to right of way
acquisition beginning, the Utility Unit will provide the Right of Way branch with
the specific parcels needed and the date by which they should be acquired, in
order to facilitate utility relocation prior to construction. The Division R/W Agent
should make every effort to obtain these utility parcels according to the project
schedule.
191
The Division Right of Way Agent will be responsible for initiating utility contacts
on maintenance (Secondary Road improvements). (Procedure to Follow)
9.07 EXISTING AND PROPOSED UTILITIES TO BE SHOWN ON
CONSTRUCTION PLANS
With respect to the use and occupancy of the highway right of way by utility
facilities which must be retained, installed, adjusted, or relocated to
accommodate the construction of all highway projects to be let to contract,
regardless of who bears the cost of installation, adjustment, or relocation, the
construction plans of the project should show all known existing utilities and all
temporary and proposed permanent relocations. With the exception of aerial
service taps or service drops, connecting wires and vertical clearances should
be shown on existing and proposed aerial crossings. Existing and proposed
underground utilities should be identified as to location, approximate depth, and
material, and the size shall be indicated on water, gas, sewer, oil, or other
pipelines. Upon receipt of utility relocation plans from the utility company or
municipality, the Utility Agent, in conjunction with the Utility Engineer of Design
Services, will make arrangements to incorporate all existing and proposed utility
locations in the highway plans and will prepare utility special provisions for
incorporation in the contract proposal. Separate utility conflict plans will be
prepared by Design Services.
9.08 AUTHORIZATION TO BEGIN WORK
It is desirable to authorize the performance of utility work at the earliest date
possible so that utilities may be adjusted to clear construction prior to
advertisement date of the highway contract. On some projects, however, this is
not possible since certain phases of the utility work must be carried on in
conjunction with highway work. Utility relocation work should be authorized
promptly after procurement of plans, estimates, and agreements.
9.09 RAILROADS
The Department policy regarding railroads is contained in the NC Administrative
Code, the NC General Statutes, and the 1998 NCDOT Railroad Policy.
On All projects (whether primary or secondary, TIP or Division Designed,
Enhancement, Safety, Bridge Maintenance, acquired by a Municipality, or
otherwise) the Division R/W Agent will examine each plan sheet and list any plan
sheets showing a railroad track or railroad r/w. The Division R/W Agent will then,
192
by email, advise the Railroad Surface and Encroachment Section in the
Engineering and Safety Branch of the Rail Division, (hereafter referred to as
the Rail S&E Section), with a cc to the project engineer, if a railroad track or
railroad r/w is shown on any plan sheet. The Division R/W Agent lists any sheet
that shows a railroad, not just where he or she perceives the railroad is affected
by the project. This email should be sent prior to the first Field Inspection, or
prior to commencement of r/w acquisition should no field inspection be held. For
non-TIP projects, the Division R/W Agent should scan and attach plans sheets to
the email.
The Rail S&E Section will examine the plan sheets, determine the following, and
advise the Division R/W Agent how to proceed:
1.
2.
3.
4.
If the railroad is active or not active
Whether a conflict with a railroad exists.
If a conflict exists, how the conflict is to be resolved.
Any actions needed by the Division R/W Agent to resolve the railroad
conflict.
The Rail S&E Section will determine will course of action needed to resolve all
railroad conflicts and the Division R/W Agent is directed to assist the Rail S&E
Section, with resolving the railroad conflict.
There are several basic conflicts a project may have with a railroad:
1. Improvements to highway that crosses the railroad at-grade
2. Grade Separation (Overpass or Underpass) where the rail r/w is not being
moved
3. Grade separation (Overpass or Underpass) requiring the relocation of the
railroad r/w
4. Highway Project parallel to rail where proposed highway r/w or easement
encroach into railroad r/w
Whether a railroad is active (operating) or not active is a key determining factor is
how the matter is resolved. Generally, if a railroad is NOT active, the railroad will
be treated as any other property owner and the Right of Way Branch will be
asked to acquire the proposed right of way/easements in the normal manner.
The Rail S&E Section can assist by providing contact information for the railroad.
If the railroad is active, the Rail S&E Section will provide the Division R/W Agent
with directions as to any actions the Right of Way Branch may need to take.
193
1. Improvements to highway that crosses the railroad at-grade
Where any project crosses a railroad at grade, whether the crossing is an
existing one or on new location, the Rail S&E Section will secure the agreement,
and there will be no additional Right of Way Branch involvement. If railroad
crossing signals are in conflict as a result of proposed project, the Crossing
Safety Engineering Unit within the Engineering & Safety Branch of the Rail
Division will facilitate an agreement for any signal work.
2. Grade Separation (Overpass or Underpass) where the rail r/w is not being
moved
Where a railroad grade separation is involved in most cases, all plans, estimates,
and agreements with the railroad company are handled through the Structure
Design Unit. If the Right of Way Agent has a question concerning this they can
contact the Rail S&E Section.
3. Grade separation requiring the relocation of the railroad r/w,
In limited cases, a highway project will necessitate the realignment, relocation of
track outside the existing boundaries of the railroad right of way. In these cases
replacement right of way will be required, as shown on the plans. This should be
discussed at the first Field Inspection. This replacement right of way will be
acquired by the Right of Way Branch. The Division Right of Way Agent should
seek guidance from the State Negotiator/Assistant State Negotiator to ensure the
replacement right of way is acquired using the proper instruments. Once the
project is built and the railroad has been relocated, the newly acquired railroad
right of way will need to be transferred from NC DOT to the Railroad. Once the
Right of Way Branch has acquired the needed area, the Right of Way Branch
with assistance from the Rail S&E Section if needed to coordinate with the
Railroad’s property office to facilitate any conveyance of property from the
Department to the Railroad and if appropriate any property from the Railroad to
the Department.
4. Highway Project parallel to rail r/w where proposed highway r/w,
easement or encroach or needed
Where construction will run parallel to and encroach on active railroad right of
way, a parallel encroachment or right of way agreement will be necessary. The
Rail S&E Section will determine if the area in conflict can be obtained by
encroachment agreement or acquisition by a right of way agreement is needed. If
the area in conflict can be secured by encroachment, the Right of Way Branch
194
will have no additional involvement unless notified. If the area in conflict requires
acquisition by Right of Way Agreement, the assigned representative of the Rail
S&E Section will discuss the claim with the Right of Way Branch. The
responsibilities of the Right Of Way Branch will be as follows: Preparation and
request of an appraisal, or Value Finding, for the area in conflict within the
Railroad Right of Way, a CADD drawing and description of the take, a current
valid right of way agreement, and Federal Tax form (FRM4-M). The Rail S&E
Section representative, upon receiving appraisal/Value Finding and prepared
right of way agreement, will negotiate the claim with the Railroad. Once a
settlement is reached, the Right Of Way Agent will be notified and requested to
process a final report for the claim, record the instrument and close the claim.
The right of way agent should forward a copy of the recorded instrument to Rail
S&E Section. As a General Rule, NCDOT can condemn railroad right of way, but
not within active (operating) railroad right of way - this is usually the area 25’
each side of the track.
Municipalities and Railroad Conflicts
On a project where a municipality is providing/acquiring the right of way and a
parallel encroachment agreement with a railroad company is required, special
handling of the agreement may be necessary. The Division R/W Agent should
follow the above procedure and involve the Municipality in the discussions.
Adverse Possession against Railroads
Railroads may have possession of their property by Deed, Easement, or Charter.
It is possible where a railroad r/w is held by easement or charter, that the
underlying fee ownership is held by another party. This interest should be
acquired separately from the railroad’s interest. However, there is no adverse
possession against a railroad per NC General Statute 1-44, which states:
“No railroad, plank road, turnpike or canal company may be barred of, or
presumed to have conveyed, any real estate, right-of-way, easement, leasehold,
or other interest in the soil which has been condemned, or otherwise obtained for
its use, as a right-of-way, depot, station house or place of landing, by any statute
of limitation or by occupation of the same by any person whatever”.
Acquisition of R/W for Railroad Extensions
In recent, there have been projects administered by the Department, where right
of way for the extension of rail lines was acquired. In these cases, the
appropriate instruments should be used – the Right of Way Branch is currently
195
updating its instruments to allow for this type of facility.
Abandoned Railroad R/W
Occasionally, the Right of Way Agent may question as to whether a railroad right
of way has been abandoned. The Agent should contact the Rail S&E Section to
assist with that determination. In cases where it has been verified the railroad
right of way has been abandoned, the Agent should seek guidance from
supervisors in determining who can claim the abandoned right of way.
Railroad R/W Limits
Occasionally, the Right of Way Agent may have questions as to railroad right of
way limits. The Agent can contact the Rail S&E Section to assist with that
determination.
9.10 DIVIDED HIGHWAY CROSSOVERS
The right of the Department of Transportation to separate the lanes of traffic with
barrier medians or channelization islands is valid exercise of the police power of
the state. The Agent has no authority to agree to establish a crossover in the
median at any specific point. Any attempt to specify the location of a crossover
in any right of way easement during the negotiation for right of way could be
construed as vesting a property right in the crossover, which is not permissible.
It should be noted by the Agent that the Department is increasingly eliminating
and modifying crossovers. No promise should be made regarding any crossover.
If, during negotiations, the property owner raises strenuous objections to the
location of a crossover, or the lack of a crossover, the matter should be
discussed with the Division Engineer and/or Division Construction Engineer. If
he/she believes that consideration should be given to the crossover, then the
matter should be discussed with the Design Unit for a decision.
It should be pointed out to the property owner that while the plans for the project
may show a crossover to be constructed in connection with the project, that the
Department may relocate or eliminate the crossover entirely for reasons of
public safety or to maintain the capacity of the highway to move traffic.
9.11 PARKING ON CURB AND GUTTER SECTIONS
Quite often on urban projects where curb and gutter is being installed, property
196
owners raise the question of whether or not they may park on the street adjacent
to the proposed curb or on the existing right of way. The Agent shall give no
assurance either verbally or in writing that such parking will be permitted. The
abutting property owner should be advised that at any time after the completion
of the project, the State or the municipality, if within corporate limits, by the
exercise of its police power, may prohibit or otherwise control on-street parking in
the interest of public safety or the movement of traffic.
9.12 DRIVEWAY ENTRANCES
On non-controlled access highway projects, it has always been the policy of the
Department, where feasible, to restore private driveways where existing
driveways have been disturbed by construction, and this condition is taken into
consideration by the appraiser in making his appraisal. As a rule, provisions for
this work are incorporated in the project plans. With reference to driveways to
commercial establishments, special treatment is given to such driveways, and,
generally, required channelization islands are shown on the project plans. The
Right of Way Agent should familiarize himself with the Department’s publication
entitled Minimum Standards for Entrances to Highways from Commercial
Establishments. This publication contains the ordinance of the Department
pertaining to these driveways and sets out the objectives, requirements, and
design features of commercial driveways. The ultimate decision on the size and
location of driveways rests with the Division Engineer.
In those instances where changes in grade necessitate the reconstruction of a
driveway involving construction operations beyond the limits of the right of way
described in the instrument, and where no prior permission has been given, the
Department must have written authority from the property owner to perform
construction work outside of the right of way limits. In these instances where an
agreement cannot be reached with the property owner for additional right of way
or construction easement(s) for the project involving the reconnection of a
driveway and condemnation of the property is necessary, the construction of the
project is to proceed without restoration of the driveway, unless the owner will
request, in writing, the driveway construction and relieve the Department from
further responsibility. The Agent should be on the alert to spot situations where
terrain features, the size or shape of remaining property, location of buildings,
excessive grades, design features, or excessive cost will make it impracticable or
impossible to restore a driveway to a usable condition.
If a driveway cannot be reconnected due to construction limitations, the Agent
should note this on the Appraisal Summary Sheet at the time he requests the
appraisal. If in doubt, the Agent should consult with the Resident Engineer or
with Roadway Design personnel before having the property appraised or making
any commitment with the owner to restore or reconnect a driveway. The proper
time to check these situations is on the Field Plan Inspection where engineering
197
personnel are present so that any required changes may be shown on the plans
before they are completed.
In those cases where improvements are being made within the existing right of
way where a driveway is affected and no additional right of way is required, it is
suggested that the Agent prepare a temporary deed of easement describing the
existing right of way in the agreement and including the following provision
permitting the reconnection of the driveway:
The undersigned property owners, recognizing that the Department of
Transportation has the right to make adjustments to the road within the
existing right of way, and further understanding that such adjustments may
disrupt our driveway, do hereby request that the Department of
Transportation enter upon our lands outside of the right of way to the extent
as is necessary to reconnect our driveway, and we will have no claim as a
result of the reconstruction of said driveway.
In those cases where additional right of way is being acquired and a permit is
necessary for constructing the driveway outside of the right of way, the following
provision is to be inserted in the applicable deed (with the exception of the full
control of access form):
The undersigned owners further request that the Department of
Transportation enter upon our lands outside of the right of way described
herein to the extent as is necessary to reconnect our driveway, and we will
have no claim as a result of the reconstruction of said driveway.
On rare occasions a property owner will request that a new driveway entrance or
an existing driveway entrance be specified by station numbers on non-controlled
access facilities. If it is necessary to specify the driveway entrance by station
number on non-controlled facilities in order to settle a right of way claim, the
Agent is cautioned to obtain concurrence of the location of the driveway from the
Division Engineer or his appropriate representative to insure the driveway
entrance can be installed at the specified location. On limited control of access
facilities, changes in driveway locations should be approved by Roadway Design
after obtaining concurrence from the Division Engineer.
The specifying of driveway locations on non-controlled highways by station
numbers is discouraged since their locations may be established as "contract
access points" which would not be subject to the Department’s or a
municipality’s "police power" and would have to be acquired if they were to be
eliminated for sufficient reason at a future time. The preferred method of
designating driveway locations is by showing the locations on the project plans.
9.13 GROWING TIMBER
198
The North Carolina Supreme Court has held that the taking of a right of way
includes everything on the right of way, which of course would include the timber.
G.S. 136-93 says in part "...and no tree or shrub in or on any State road or State
highway shall be planted, trimmed, or removed and no obstruction placed
thereon, without a written permit as hereinbefore provided for...". Additionally,
G.S. 136-18.6 deals with cutting down tree and reads "Except in the process of
an authorized construction, maintenance or safety project, the Department shall
not cut down trees unless:
(1) The trees pose a potential danger to persons or property: or
(2) The cutting down of the trees is approved by the appropriate District
Engineer."
When acquiring right of way, the appraiser will have considered the value of the
timber in his appraisal and the amount of the approved offer to the property
owner will include compensation for both the land and the timber.
The Department discourages the practice of removing timber and trees from the
right of way being acquired for a highway project. This is due to ecological
reasons and for selective cutting for landscape purposes. Accordingly, the Agent
will discourage the retention of timber or trees by the property owners. The
Agent may not be able to stop an owner from cutting timber or trees before the
Department has control over the property; however, the owner should be
informed that the appraisal will be adjusted if the timber is removed. If an owner
is insistent about retaining timber, the Agent should contact the State Negotiator
for further instructions.
The Right of Way Agent may not give permission to any property owner, nor
other owners to remove trees/landscaping from the existing right of way.
Retention of landscaping purchased by the Department is addressed in Section
9.14 below
In regard to the right of the Department to remove tree limbs that are
overhanging the right of way, the Attorney General’s Office has ruled that the
Department has this legal right. When the Department acquires the right of
way, the Department also acquires, with certain limitations, the overhanging
limbs even though the base of the tree may be off the right of way. 25
American Jurisprudence, Section 297, page 589, states in part:
"Municipal authorities have the right to trim trees standing on private property
where their branches extend over the highway, if they obstruct the way or
endanger, hinder, or incommode persons traveling therein. It is not necessary, in
order that trees constitute such an obstruction as to authorize their removal, that
they actually impede or stop travel. But the right of removal is not absolute. It
must be exercised with prudence and reason, and not wantonly, willfully, or
arbitrarily, and the extent of the cutting must not exceed reasonable necessity."
199
Page 590, Section 298, states in part:
"The weight of authority is to the effect that the decision of the public authorities
in the matter of necessity for removal will be reviewed by the Courts only for the
purpose of determining whether such authorities have acted arbitrarily or have
exceeded their statutory powers in the premises, and every reasonable
intendment of good faith and honesty will be indulged in favor of their decision.
Under this rule, the Courts will not ordinarily review the decision of the
administrative authorities on the question of whether it is necessary to make a
certain improvement or to remove certain trees in making it."
The Attorney General’s Office further points out that no notice of the intent to
trim the trees is necessary, but that the Department must be careful not to act
arbitrarily, wantonly, or oppressively. It appears from the law that the abutting
owner owns the limbs; therefore, they should be offered to him.
In those instances when a property owner has removed timber or trees, or has
sold the timber to another party for removal from right of way, after the timber or
trees have been conveyed to the Department with the right of way area, the
Agent should request direction from the State Negotiator and the Attorney
General’s Office regarding recovery of the value of timber which has been
removed
9.14 SHRUBS AND LANDSCAPING
In cases where right of way being acquired is landscaped, the appraiser will have
taken into consideration the contributing value of the shrubs and landscaping to
the property, and the amount offered to the property owner will cover these
items. The property owner is not to be allowed to remove the shrubs and
landscaping items from the right of way unless a retention value has been
determined and proper credit given to the Department in the purchase of the right
of way from the property owner.
If the shrubs are retained by the owner, the terms of the sale should be set forth
in the same manner as the sale of other improvements. In selling a dwelling for
its removal from the right of way, it is also understood that the purchaser will
have the right to remove only the shrubbery located immediately around the
foundation of the dwelling.
9.15 GROWING OR UNHARVESTED CROPS
As a general practice, growing crops upon right of way or borrow acquired will be
200
considered and paid for as a part of the realty. In those cases where crops have
been planted upon the right of way subsequent to the preparation of the
appraisal and prior to the date of taking, consideration can be given to the value
of the growing crop at the time of the taking with the value being based primarily
upon the cost incurred in planting and cultivating the crops up to the time of
taking. In those cases where the owner elects to wait until the crops in the
adjoining fields have matured to make a settlement, the Agent will take into
consideration the yield in the adjoining fields, deducting from the allowance the
cost of harvesting and marketing, plus any cost that might be involved in
cultivating between the date of taking and the time of maturity. The Agent should
fully document his calculations in arriving at the value of the crops, unless a
separate value has been placed on the crops by the appraiser. On secondary
road improvements, the property owners may be compensated for growing crops
destroyed in connection with the improvement.
9.16 FENCES
Where right of way is acquired and fences are located within the right of way
area, the amount offered to the property owner should include the taking of his
fences. Where fences are located upon the right of way that has been
acquired, the fences become the property of the Department and quality
fences of substantial value are to be disposed of in the same manner as other
improvements taken within the right of way; that is, they should be resold to
the property owner for the retention value, by public sale or by demolition.
On widening projects, the Agent may use the following procedure:
If an investigation of the project reveals a considerable amount of fencing within
the additional right of way to be acquired, the Agent may inform the Area
Appraiser that he is not to consider the taking of the fences. The Agent will arrive
at a value for the fences by reviewing bid prices for removal of fences on recent
projects in the area, establish a removal price for the various classifications of
fences, and apply the unit price to the number of feet of fence involved on each
individual parcel, being careful to determine that the cost of removal does not
exceed the value of the fences.
Upon receipt of the approved appraisal for the particular parcel involved, the
Division Agent will write to the Raleigh Office recommending an increase in the
appraisal, being careful to set out in the letter the justifications for the increase
and stating the type and amount of fence involved and the unit price for the
removal.
A determination as to the linear feet and type of fencing to be moved on a project
where right of way acquisition is involved is to be determined by the Division
Right of Way Agent. Generally, fences will be removed and reset by the roadway
201
contractor only in those cases where, in the opinion of the Division Right of Way
Agent, they should be reset in order to maintain good public relations. The
Division Right of Way Agent will furnish to the Raleigh office, along with and at
the time demolition items are submitted, a list of the different classifications and
types of fences that are to be removed and reset. The list should show the linear
feet of each type of fence to be relocated, grouping barbed wire fence in one
classification, meaning that three, four, or five stand barbed wire would all be
classified barbed wire. The Agent should tie down the fence by parcel and station
numbers on this list. Electric fencing should be classified by itself, as well as
chain link fencing, board or panel fencing. A copy of this fencing list should be
furnished the Division Engineer one month prior to the advertising date for the
project. There may be instances where the Division Right of Way Agent may
need the assistance of the Division Engineer in the preparation of the list of
fences to be included in the roadway contract. It is suggested that the Division
Right of Way Agent contact the Division Engineer promptly upon receipt of the
current "Tentative Letting List" and determine which projects on the list involve
fence removal and if the Division Engineer’s assistance will be needed in the list
of fencing items to be included in the roadway contract. It is pointed out that the
Department resets fencing of this nature only in rare instances to maintain public
relations. The Agent should not have the Department reset any fencing for which
the value has been included in the appraisal and previously paid for by the
Department.
Insofar as practical, the Department will fence projects with full control of access.
The Agent should be very careful to examine this type project to determine those
parcels on which pasture fencing will be severed. This is very important for the
protection of livestock located in these pastures. The Agent should prepare a
preset fencing list on this type project, listing the parcel number, claimant, and
survey stations where the project fencing is to be preset prior to the time the
pasture fencing is disturbed. The Agent should forward this list of fencing to be
preset to the Raleigh office at the time he submits the demolition items on the
project. The Agent should also use caution when dealing with claims involving
pasture fence severance on other type projects.
On projects where the property owners are donating the right of way, such as
secondary road improvements, the Department should reset the fencing. If a
project of this nature is let to contract, fence resetting items, should be included
in the contract. On additions to the State Maintenance System, the Department
does not reset fencing.
9.17 CLAIMS WITH RADIO STATIONS
Claims involving radio stations can be involved due to the fact that the antenna
systems can be disturbed when construction appropriates a portion of the radial
system (underground copper wires extending like the spokes of a wagon wheel
202
from the base of the antenna). There are also other factors which can affect the
broadcasting ability of the radio station.
When it becomes necessary to acquire right of way from radio stations on
Federal aid projects, or if unusual circumstances are encountered on other type
projects, a conference should be held with the Area Appraiser regarding the
estimated damage to the property and other unusual factors. The Area
Negotiator should be present at this conference and a report shall be written to
the State Negotiator so that all concerned may be advised as to the proper
procedure to follow in appraising and acquiring the property.
9.18 PARKS, PLAYGROUNDS, AND HISTORICAL SITES
In some instances a proposed project will affect a park, playground, or other
public recreational facility. The Agent should make an investigation of these
areas on the preliminary field plan inspection and mark any park, playground, or
other recreational areas on the plans. The Agent should write a separate letter
or report giving full particulars on the affected site and forward this report to the
State Negotiator, along with the preliminary field inspection report. This is very
important due to Federal and State regulations concerning these facilities. The
Agent should also bring to the attention of the State Negotiator any historical site
that will be appropriated or otherwise affected by the project.
9.19 RETAINING WALLS
Retaining walls constructed for the purpose of confining construction limits to a
reduced area in order to avoid or reduce property damage should be justified by
appraisals. In other words appraisals should be secured on the basis of
constructing the project with a wall and constructing the project with normal cut
or fill slopes. An estimate of constructing the wall should be obtained from the
Roadway Design Department and the estimated cost of constructing the wall be
compared with the difference in property damage with and without the wall. If
justified, any recommended plan changes should be submitted through the
State Negotiator.
9.20 ORNAMENTAL WALLS
As a rule ornamental walls surrounding a property are considered to be realty
and should be appraised as a part of the realty. The disposition of such walls
should be the same as that for any other improvement; that is, they should be
cleared from the right of way. In some instances an ornamental wall may serve
as a retaining wall, and if its replacement can be justified by alternate
203
appraisals, such walls may be re-erected by the Department within the limits of
the new right of way; however, in those instances where a wall is replaced, it
should not be paid for as a part of the realty. The Agent should inquire of
Roadway Design as to the type of replacement wall to be installed and so
advise the property owner.
9.21 SPRINGS AND WELLS
If a spring or well is located within the right of way that is to be appropriated, the
appraisers will have taken into consideration its value and any damage resulting
from the taking of the water supply will be reflected in the appraisal. The Agent
should negotiate accordingly. There will be some instances where a spring will
be boxed over when it is under a roadway fill and the property owner could
continue to use the water that would be discharged through the drainage system
installed by the Department. In these instances the Agent is not to make any
reference to the continued use of such spring water by written agreement,
inference or otherwise, since this could be construed as giving the property
owner a right in the right of way. The Agent should bear in mind that there is no
degree of certainty as to the quality of water or continued flow from a capped
over spring. Where a spring or well is located near the outer limits of the right of
way and a slight change can be made in the right of way boundary so as to
eliminate the taking, a recommendation should be made to the Raleigh office for
a reduction in the right of way to eliminate the taking of the water supply. Where
there is a possibility of damage to water the property owner may raise the
question of the possibility of damage to his water supply by reason of the road
construction and may refuse to reach an agreement unless some provision is
made concerning this feature. Under no circumstances is the Agent to place a
provision in the deed to the effect that the Department of Transportation will
replace the water supply in the event it is damaged or fails. If during the course
of constructing the project the Department of Transportation, its successors or
assigns, performs any act that directly results in the failure of or damage to the
water supply, that such act would constitute the basis for a new claim."
In those situations where a water supply is damaged due to the construction of a
project and no prior disposition has been made, the Agent should furnish the
State Negotiator with a written report giving full particulars of the situation. The
State Negotiator will then have the complaint investigated by the Geology
Section of the Department. If the Geology Section determines that the source of
water has been damaged by construction, the procedure to follow is:
1.
When possible, let the owner get at least two estimates from well-drilling
companies. The names of reliable well-drilling companies in the local area can be
furnished to the owner, but refrain from recommending a particular well-driller so
no one in the drilling or boring business can charge favoritism against the
Department.
204
2.
When the property owner does not have the means to obtain the
necessary estimates, a Right of Way Agent may perform this function. The
Agent’s judgment will have to be used in this instance.
3.
The Department of Transportation check is to be made payable only to the
property owner, and the property owner will be required to sign a release upon
delivery releasing the Department from any past, present, and future
responsibility with regard to the loss or damage to water supply.
9.22 SECONDARY ROAD ACQUISITION/CONDEMNATION
PROCEDURES
The Department does not pay for right of way on secondary road
improvements or road additions which will become secondary roads on the
Department of Transportation maintenance system. The Department believes
that the dedication of right of way for the improvement, paving or addition of a
road to the maintenance system enhances the value of the adjoining property
and offsets any damage to the property by virtue of the construction or addition.
The various easement forms to be used on secondary road improvements and
additions are discussed in Chapter 7.
It is the policy of the Board of Transportation that for the paving of unpaved
secondary roads, often referred to as secondary road improvement projects, the
property owners shall dedicate at no cost to the Department of Transportation
adequate right of way for construction and maintenance. In certain areas where a
secondary road intersects a major highway, the Board may purchase a sight
distance for the safety of the traveling public. The Board may defray the cost of
moving any existing fences or buildings within the right of way, as well as for crop
damage and utility relocations.
With regard to secondary road additions to the maintenance system, it is the
policy of the Board that all property owners shall dedicate at no cost adequate
right of way, which is clear of all fences, buildings, structures and utilities, for
future maintenance. The Board will not defray the costs to move any existing
fences, buildings, structures, utilities or other items from the proposed right of
way
The right of way to be dedicated by property owners shall be a minimum width of
fifty (50) feet for connecting roads and a minimum or forty-five (45) feet for dead
end roads.
Generally, the Department will not improve or pave a secondary road unless all
property owners dedicate the necessary right of way by executing appropriate
agreements conveying the right of way to the Department of Transportation or via
a recorded plat. In certain circumstances, if one or more property owners refuses
205
to dedicate the necessary right of way in order to pave a secondary road, the
Board of Transportation may allow the remaining property owners to post a bond
to cover condemnation costs incurred by the Department. This decision will be
based upon the number of abstaining property owners and whether or not the
estimated cost of condemnation is considered to be excessive.
However, in some rare instances, the Department may condemn property on
secondary road improvements if interested parties and property owners are
willing to provide the necessary bond to indemnify the Department against the
costs incurred in the condemnation and litigation of the claim. Before
condemnation will be considered, the following should occur:
.(1) Division Engineers will exhaust every effort to solve the right of way
problems in the surveying process
.(2) Property owners along the road will negotiate with their dissenting neighbors
and attempt to resolve the right of way issues. This could include purchasing the
right of way for the DOT.
After all efforts have been exhausted to secure all of the right of way for a
proposed improvement, the Division Engineer will request the Chief Engineer for
the Division of Highways to have an item presented to the Board of
Transportation’s Secondary Roads Committee recommending approval to
condemn certain parcels where property owners have refused to dedicate or
donate the right of way necessary to complete the construction or improvement
of a specific road. A copy of this request should be forwarded to the
Division Right of Way Agent and to the State Negotiator’s Office.
Upon receipt of the Division Engineer’s letter, the State Negotiator’s Office will
request an agenda item for the Board of Transportation’s approval of the
Secondary Roads Commit-tee’s recommendation to proceed with condemnation
on the specific secondary road improvement project. After Board approval to
proceed with condemnation and after a bond amount up to $2,500.00 (to be
added later to the appraised damages) per parcel to cover court costs has been
established by the Chief Engineer’s Office, the State Negotiator will advise the
Division Right of Way Agent to proceed with the condemnation of the parcel(s)
which are to be condemned.
Based upon a plat provided by the District Engineer of the property suitable for
condemnation purposes, the Division Right of Way Agent will request an
appraisal of the par-cel(s) to be condemned, advise the property owner(s) of any
appraised damages, and secure bond and escrow agreements from those
interested parties and property owners who will indemnify the Department
against court costs and appraised damages. The Department requires that the
appraised damages, if any, be posted along with an amount up to $2,500.00 to
cover court costs. Samples of the bond and escrow agreements are shown as
Exhibits 9-J and 9-K. As soon as the bond and escrow agreements have been
executed, a preliminary certificate of title should be requested and upon its
206
receipt, the claim can be processed for condemnation. After condemnation has
been filed, the Division and District Engineers will be advised that right of way
acquisition has been completed and that construction or improvement can
commence.
The Right of Way Branch will not negotiate settlements with property owners
refusing to grant the necessary right of way. For those condemnation cases
being handled by the Attorney General’s Office involved in mediation, any offers
or proposals for settlement will be directed to the Chief Engineer.
9.23 PERSONAL PROPERTY NOT TO BE ACQUIRED
No items of personal property are to be acquired by the Department through
negotiation. An owner of personal property may abandon personal property
under the Loss of Tangible Personal Property section on Chapter 15. Also refer
to Chapter 4. Mobile homes are generally considered personal property. An
exception will be those mobile homes considered "vintage" meaning that due to
their age and/or physical condition local ordinances or regulations will prohibit
them from being relocated. Units meeting this criterion would be considered the
same as "tenant-owned improvements" and be acquired in accordance with
Chapter 10.
9.24 STREAM CHANNEL CHANGES
Frequently it is necessary to change the course or channel of a stream by reason
of highway construction. This may be handled in one of two ways. Where the
channel change is parallel to the roadway, the right of way width may be
increased sufficiently to incorporate the channel change. The preferred way is to
secure a drainage easement for any portion of the channel change that may lie
outside of the normal width of right of way. Through farm lands where the stream
may be used for watering stock or as a source of irrigation water, control of
access lines should be carried on the highway side of the stream so that the
Department will not be faced with paying additional damages for depriving the
owner of access to the water.
9.25 USE OF STREAM BRIDGE SPANS FOR PRIVATE ROAD
CROSSINGS
In some instances it may be desirable to allow abutting property owners to utilize
stream bridge spans for private road crossings of controlled access facilities, if
so, such use must be taken into consideration in arriving at the appraised
damages. In the field inspection of a parcel that is to be severed by a controlled-
207
access facility, the Agent will inspect carefully for any proposed bridges, culverts,
or other means of access under the project for either stock or vehicle. If there is
any question as to the amount of space available between the end of the
structure and the edge of the stream bank, the Division Engineer should be
called upon to stake out either the structure or fill so that accurate information
can be given to the appraiser. The Summary Sheet should not be turned over to
the appraiser until full information is available as to access that can be provided
under the project, and this information should be indicated in a cover letter with
the summary sheet. Should such use be permitted, the right of way deed should
contain a clause somewhat as follows:
It is agreed herein that the grantor may establish a private road ______ feet in
width under the highway bridge across ___________________________ Creek
(river) with the express understanding that such use will not interfere with or
cause damage to the bridge, will be subject to limitations imposed by vertical and
horizontal clearances under the bridge, natural erosion of the stream bank, or by
high water in the stream, and that all maintenance of such road will be the
obligation of the property owner.
9.26 LIVESTOCK OR VEHICULAR UNDERPASSES
Frequently in farming areas where pasture land is severed by a highway, the
property owner requests that he be provided with a cattle pass or in the case of
larger farms severed by controlled access highways, the owner may request a
vehicular underpass. If, in the judgment of the Right of Way Agent such request
should receive consideration, he should refer the matter to the State Negotiator
for further consideration. If it is decided that the request has merit, appraisals
should be made on the basis of damage to the property with and without the
cattle pass or vehicular underpass, and if the difference in the two appraisals
indicated that the structure could be justified, an estimate of the cost of the
structure should be secured from the Design Department before making a final
decision. If the cost of the structure is less than the severance damage without
the structure, the request should be made to the State Negotiator to include the
structure in the plans for the project provided that settlement on this basis can be
reached with the property owner. Plans are not to be changed to add an
underpass without a settlement being reached with the property owner unless
expressly authorized by the Raleigh Office.
In some instances, it will be found that the plans for the project will call for a
drainage structure of sufficient size to be used as a cattle pass, or that by slightly
increasing the size of a drainage structure it can be used for both purposes. The
agreement should provide that its use be subject to limitations imposed by
drainage through the structure and further provide that its use as a cattle pass
will terminate at such time as the property on one side or the other of the road
changes to a use no longer requiring a cattle pass. The agent should be
208
particularly careful not to make any commitments for the permissive use of a
drainage structure as a cattle pass where it is known or can be ascertained that
the drainage structure will stand too deep in water for use as a cattle pass for any
appreciable length of time.
9.27 PAYMENT TO PARTIES OTHER THAN THE OWNER
OF RECORD TITLE
On occasions in reaching an agreement with a property owner, it will be his or
their desire that all or a part of the consideration be paid to someone other than
the owner. For example, the heirs of an undivided estate may wish the
compensation to be paid to one of the heirs or, in the case of a multiple
ownership, it may be that the grantors wish to be paid separately. In such cases,
the Right of Way Deed should contain a special provision setting forth the
manner in which payment is to be made. For example:
It is understood and agreed by the grantors to this conveyance that the herein
recited consideration of $ ___________ is to be paid to ___________.
or,
It is understood and agreed by the grantors to this conveyance that $ ______ of
the herein recited consideration of $ _________ is to be paid to __________
The Agent is to secure a taxpayer identification number FRM4-M from whomever
the payee is. The Agent should encourage the above procedure on claims
involving a large number of grantors on one instrument as this will facilitate check
issuance and closure of the claim.
9.28 ACCESS TO ISOLATED TRACTS
In constructing highways, certain properties may be isolated and left without legal
or practical means of access. This may be caused by the imposition of control of
access in the design of the project or on non-controlled access projects where
the construction of excessive cuts or fills would make it virtually impossible to
restore driveway entrances to the highway, within the frontage of the property.
Access to certain properties thus isolated may be restored by either the
construction of frontage or service roads or by the construction of private
driveways. The construction of any frontage or service road must be justified
from an economic standpoint. On interstate or other expressway projects
involving control of access, at the plan inspection stage, an inspection should be
made by the Area Appraiser, and it may be found on this inspection that the need
for a service or frontage road is so obvious that it will not be necessary to go to
209
the time or expense of securing comparative appraisals; however, where there is
a doubt as to the need for a frontage road, it must be justified by securing
appraisals of the properties involved both with and without a frontage road. If the
difference of these two appraisals indicates that a service road could be justified,
the plans and estimates of the cost of the service road should be secured from
the Roadway Design Department. If the difference between the damages to the
property in an isolated condition and the property with access provided is
greater than the cost of constructing the service road with the cost of
maintenance being considered, then the service road should be constructed. If
not, the property should be left in an isolated condition and damages be paid
accordingly. Refer to Sections 5.061 and 5.062 of the Manual which further
explain this procedure and areas of responsibility.
On non-controlled access highways where a driveway cannot be restored in a
usable condition because of cuts or fills, it may be that the driveway can be
constructed to a grade point across adjoining property. If so, it will be necessary
to arrange with the adjoining property owner to convey a driveway easement to
the property owner that is cut off.
9.29 BREAKING CONTROL OF ACCESS
As a part of a project , access control may be broken to provide driveway
entrances and service road connections to the roadway. This will not be done on
interstate projects allowing direct access to the roadway proper. On some
projects access control will be broken to allow one access point per property or
parcel. In those instances where a break in access control is allowed to provide
access to the roadway and one access point can serve two properties, the Agent
will prepare the right of way description and break the control at stations
perpendicular to the roadway proper so that access may be provided to the two
properties at the intersection of the common property line between the two
properties with the right of way boundary of the project proper. This description
of access should be described in FRM7-B. In no instance should an Agent
provide a break in the control of access without the prior approval of the State
Negotiator.
9.30 REPURCHASE OPTIONS
Occasionally, a property owner will request that the conveyance of right of way
contain a provision to repurchase the property if it is no longer needed for
highway purposes. The Agent should inform the property owner that he/she has
no authority to enter into such agreement. If the interest to be acquired is an
easement for highway purposes, the Agent may inform the property owner that if,
in the future, highway maintenance is abandoned and the easement is no longer
210
required for highway purposes, that it may revert to the party owning the
underlying fee interest without any action on the part of the Department.
For fee simple acquisitions, G.S. 136-19(a) addresses the repurchase of
property acquired as right of way as follows:
". . . If the Department of Transportation acquires by purchase, donation, or
condemnation part of a tract of land in fee simple for highway right-of-way as
authorized by this section and the Department of Transportation later determines
that the property acquired for highway right-of-way, or a part of that property, is
no longer needed for highway right-of-way, then the Department shall give first
consideration to any offer to purchase the property made by the former owner.
The Department may refuse any offer that is less than the current market value
of the property, as determined by the Department. Unless the Department
acquired an entire lot, block, or tract of land belonging to the former owner, the
former owner must own the remainder of the lot, block, or tract of land from which
the property was acquired to receive first consideration by the Department of
their offer to purchase the property."
9.31 HISTORICAL PROPERTIES
The Agent should insure that any properties considered to be historical or appear
to have historical significance should be fully reviewed on the Preliminary Field
Plan Inspection. The NCDOT PDEA Unit should be the lead group investigating
historical properties and any mitigation NCDOT has to take as a result of the
project. Acquisition of historical properties should be coordinated through the
State Negotiator.
211
Chapter 10 NEGOTIATION
The primary aim of negotiating should be to develop trust, mutual respect, and
rapport with the property owner so that acquisition may be amicably completed
with the payment of just compensation. The development of this mutual respect
and rapport with the property owner should commence with the initial contact
with the owners and should be carried through the offer of just compensation,
follow-up contacts and completion of acquisition. Negotiation calls for
salesmanship tempered with high ethical standards. The success of subsequent
negotiations may be accomplished much more easily if proper preparation and
ground work is laid during the initial contact with the property owner.
10.01 CONFLICT OF INTEREST
Ethics and conflicts of interest are previously discussed in Chapter 1 of this
Manual. It is essential that there be no actual or perceived conflict of interest
between the personal, business, or family interests of a Right of Way Employee
and the interests of persons from whom right of way must be acquired. Any
Right of Way Employee, including supervisors, should disqualify himself/herself
from involvement in any right of way claim under the following circumstances:
1. A personal or family relationship or involvement in the ownership or
sales history of the land involved.
2. A participating business association with the owner or any other party
of interest in the property to be acquired.
The Right of Way Employee should explain the nature of the conflict to their
Supervisor when recusing themselves from the matter.
As stated in Chapter 4 of this Manual, R/W Agents, prior to making initial
contacts, must sign the affidavits in FRM4-C.
10.02 CONDUCT OF THE NEGOTIATOR
The Right of Way Agent is expected to understand, reflect and represent at all
times, in a straightforward and respectful way, the interest of the Department of
Transportation. The Agent must recognize and believe that the aim of the
Department is to accomplish the acquisition of right of way on a project for the
good of all, with the least damage to the least number of persons, and being
consistent with justifiable expenditures of public funds. The Agent must also
212
recognize that there can be differences of opinion as to whether this duty is being
properly discharged and that no citizen owes the state more than the broad
obligation of good citizenship. An Agent should render friendly, well informed,
sincere, and attentive consideration to the views of the persons with whom
he/she deals. Insincerity, veiled sarcasm, or rudeness are equally out of place in
public contacts.
The R/W Agent may occasionally meet a property owner with whom there may
be a personality clash. In such circumstances, it may be desirable for the Agent
to inform the Division Right of Way Agent and request that another Agent be
assigned the parcel in question; however, this should not be used by the Agent
as an excuse or pretext to avoid a possible unpleasant or difficult assignment.
The Agent has perhaps the best opportunity of any Department of Transportation
employee to engender favorable and friendly feelings toward the Department.
Patient and courteous treatment of the public, and affected property owners, in
particular, is an essential feature of the Department’s right of way program, and
personal habits and conduct of the Agent must at all times reflect favorably upon
the Department. In most cases, the Agent’s contact with an owner is probably the
only contact that individual has ever had with an employee of the Department of
Transportation. To the owner, the Agent is "the Department of Transportation"
and should conduct himself accordingly. The Agent, in negotiating with a property
owner, should confine discussions to the subject claim in question and not
discuss the claims of other property owners along the project. Punctuality in
meeting appointments and following up promptly on any requests for additional
information requested by the owner is essential.
10.03 PREPARATION FOR NEGOTIATION
It shall be the responsibility of each Agent to become familiar with all factors
which will contribute to an effective and efficient negotiating effort. The Agent
should carefully review the project plans for a particular parcel, study the
appraisal, and view any comparable sales that may have been used by the
appraiser as the basis for value. If there are any aspects of the appraisal that are
not understood they should be clarified with the Division Right of Way Agent.
The Agent should also examine FRM4-H and the Preliminary Title Certificate
(FRM6-C), if available. The Agent should reexamine the subject property on the
ground to see if there have been any changes in its condition since the time of
the initial contract with the property owner. Careful study of all information at
hand and a thorough familiarization with all aspects of the project and the subject
property are essential to a successful negotiation.
On each project, A schedule (FRM3-B) will be developed by the Division R/W
Agent, Area Appraiser, and Area Negotiator as outlined in Chapter 3 of this
manual. The schedule outlines the various acquisition activities from the
beginning of negotiations to the letting of the project to construction. These
213
project schedules are located on the s (groups) drive. The Agent shall adhere to
the project schedule in order to complete specific acquisition activities as
scheduled.
10.04 ORDER OF NEGOTIATIONS
After receipt of plans and authorization, and a preliminary study of the project,
the Agent should form a plan as to the order in which negotiations should be
carried out. The Agent should discuss the project priorities with the Division R/W
Agent and Area Appraiser.
Initial Contacts must commence promptly on properties involving improvements,
displacees, and utility easements.
The purpose of this promptness is to permit persons who have to relocate ample
time to do so and to comply with a 90-day notification, schedule requirements. In
addition, utility relocation may commence prior to the project letting, and
therefore acquisition of parcels needed for utility relocation must accelerated.
Improvements need to be acquired and inspected and asbestos abated prior to
demolition.
It is also important to begin negotiations promptly on involved properties which
will entail prolonged negotiations. In some instances an individual may own
several properties on a project and it may be desirable to wait until all appraisals
have been completed on these parcels so that one negotiation can be made with
the property owner for all properties rather than handling them individually. Of
course, the Agent’s activities will be controlled to some extent by the complexity
of claims, whether right of way claim reports (FRM4-N) were utilized, the order in
which Appraisal Requests were turned over to the Appraisal Section, and by
collaboration with the Area Appraiser. On some projects where there may be a
wide, but legitimate, variation in the amount of damages, it may be desirable to
consider making offers and negotiating on the least damaged properties first.
There have been instances where the ratio of settlements on a project has been
drastically disrupted by making an offer for a high amount for the most damaged
property at the beginning of negotiations. The Agent should be aware that
sometimes the local grapevine will carry the news of offers, which may be
often times distorted, much faster than negotiations can be conducted on
the project.
10.05 ACCOMPLISHING WORK AND MEETING DEADLINES
Once negotiations have commenced, the Agent should pursue acquisition as
promptly as possible. High-pressure tactics are not to be employed and the
214
owner must be given a reasonable length of time to consider the offer. It is good
policy to give the owner at least one week in which to consider the offer before
making a second contact. The time between the initial offer and the second
contact is dependent on circumstances and the desires of the owner. The Agent
should schedule the time and date of the next negotiating contact with the owner
at the time of the current contact. Telephone contacts are necessary in
establishing appointments; however, the telephone should not be used as a
substitute for a personal contact with the claimant during negotiations. In no
event shall the time of condemnation be advanced or deferred, or any other
action be taken, solely for the purpose of coercing the owner to agree on the
price to be paid for the right of way being acquired.
Quite often, the longer a negotiation is prolonged the more difficult it is to reach a
settlement. The Agent should always be attentive to the attitude of the owner and
aware of the schedule so as not to prolong the negotiations. It is very important
that all acquisition schedules be met in order that the award of contracts not be
delayed.
10.06 NEGOTIATING DIARY
The Negotiating Diary is also discussed in Chapter 4 of this Manual. For each
contact with a property owner, there should be an entry in this diary. Each entry
should be dated and signed by the Agent who contacts the property owner. An
entry should be made for all contacts, whether there is a visit to the property
owner’s home or place of business, a contact in the Agent’s office, or a contact
by telephone or email. The entry should briefly and clearly set out the place of
contact; persons present; the subject of discussion; any conclusions reached;
the amount of any offer; replacement housing payment, if applicable; counteroffers by the owner; the attitude of the property owner and other pertinent facts
and information which may have a bearing on the negotiations of the claim. The
diary should be kept up to date and entries made immediately upon completion
of a contact with an owner. The diary will prove invaluable, if, for some reason, it
is necessary to change negotiators prior to completion of a negotiation. The
diary may also be helpful should any problems or issued arise during
construction.
The diary may also be value of should negotiations fail and it becomes necessary
to enter into condemnation. The diary should be placed in the final report folder
on the s (groups) drive. In the case of condemnation, where contacts with the
owner or his/her attorney are made, new diary sheets should be completed and
placed in the final report folder and emailed to the AG’s Attorney handling the
parcel.
215
10.07 UNECONOMIC REMNANTS
An uneconomic remnant is the portion of a parcel that remaining which the
Department has determined has little or no utility or value to the owner. The
Department of Transportation is obligated to make an offer to purchase all
uneconomic remnants. Uneconomic remnants can be purchased only with the
consent of the owner and can not be condemned.
The Department’s Reviewing Appraiser will indicate on the Review Certification
FRM5-S whether a remainder meets the criteria as an uneconomic remnant.
Prior to the making of the offer to the property owner, the Area Negotiator or the
Division Right of Way Agent will furnish the project Agent(s) with a memorandum
authorizing that an offer to purchase the uneconomic remnant on each affected
parcel be made. A copy of the memorandum will be placed in the final report
folder on the s (groups) drive and named Gencor-remnant letter.
Factors to be considered in determining that a remainder is an uneconomic
remnant include the size or shape of the remainder, control of access as it may
affect the remainder, cuts and fills as they may affect access to a remainder, the
economic effect on a business operation, the effects on a farming operation, loss
of water/sewer, and the effect on residential and all other types of property due to
right of way acquisition. The utility or value to the owner must be considered as
well as its appraised value. In some cases, a remainder having a substantial
value could be considered an uneconomic remnant depending upon its utility or
value to the owner. Any questionable situations involving uneconomic remnants
should be discussed with the Assistant State Negotiator or State Negotiator.
On those uneconomic remnants where known contaminants or other
environmentally hazardous materials or waste may be located, an offer to
purchase the uneconomic remnant shall be made; however, the offer to purchase
shall be conditioned on the property owner providing the Department with a
release from the appropriate environmental agency that all contaminants have
been remediated and/or removed to their standards and the remnant is
environmentally clean prior to the conveyance of the remnant. Uneconomic
remnants should be purchased using a NORTH CAROLINA GENERAL
WARRANTY DEED (FRM7-J) and the description used should only be the
remnant.
In making the offer to purchase the entire property from the owner where an
uneconomic remnant is involved, Paragraph (C) of the Summary Statement/Offer
to Purchase letter (FRM10-B) should be marked appropriately. In processing the
claim for payment, on the Final Report, the GL Code shall be marked with NP as
the value of the uneconomic remnant shall be made non-participating for
Federal-Aid funding. A residue card and sketch FRM14-W and FRM14-X in
Chapter 14 of this Manual) will be added to the Final Report folder. If a property
216
is split and there are two uneconomic remnants, there should be two residue
cards/sketches.
10.08 BUILDABLE LOTS
When the acquisition of a portion of a typical residential property causes the
displacement of the owner from the dwelling and the remainder of the property is
determined to be a buildable lot, after completion of an evaluation of the property
for relocation assistance benefits, the Department will offer to purchase the entire
property. In computing the replacement housing payment in such instances, the
replacement housing payment will be based on the sum of the fair market value
of the remaining buildable lot and the acquisition cost of the partial taking. In
making the offer to purchase the entire property from the owner where a
buildable lot is involved, Paragraph (C) of the Summary Statement/Offer to
Purchase letter (FRM10-B) should be marked appropriately. To facilitate the
processing of the claim for payment, a copy of the transmittal letter showing the
value of the buildable lot should be included in the Final Report folder and the
value of the buildable lot will be non-participating for Federal-Aid funding (the GL
code shall be marked with NP). A residue card and sketch (FRM14-W and
FRM14-X in Chapter 14 of this Manual) will be added to the Final Report folder.
10.09 RETENTION VALUES OF IMPROVEMENTS
The current policy of the Department regarding the acquisition of improvements
within the right of way is to afford the property owner the opportunity to retain the
improvements, whenever the schedule and circumstances permit. The retention
of an improvement is based on the condition the improvement will be removed
from the right of way at no expense to the Department. The Agent will advise the
property owner that the improvements may be retained or repurchased from the
Department for a retention value and this transaction would require the execution
of a bid form and the submittal of a performance deposit to finalize the retention.
The retention value(s) for the improvements will be provided to the owner upon
request and in accordance with Section 9.45 of this Manual. The Summary
Statement/Offer to Purchase form contains a provision regarding the retention of
improvements and this provision should be noted to the owner when the offer is
made.
10.10 AMOUNT OF OFFER
The offer of just compensation as established by the approved appraisal is
required to be set forth in writing to the property owner on the Department’s
Summary Statement/Offer to Purchase Real Estate (FRM10-B). Settlement will
217
be negotiated on the exact amount of the approved appraisal.
It is good policy to make the offer to the owner or his representative orally and
then present the Summary Statement confirming the offer. The Summary
Statement/Offer to Purchase Real Estate letter is to be dated and signed by the
Agent who makes the offer. All paragraphs must be completed or N/A inserted
for information that does not apply.
On those claims where a Right of Way Claim Report is not appropriate, the
Appraisal Section will be responsible for providing an allocation with the
approved appraisals setting forth the value of the land or part taken, the value of
the improvements taken, damages to the remainder, if any, and any benefits
created by the project. The Agent must be most careful in the preparation of the
FRM10-B by paying utmost attention to the pertinent data that must be inserted.
Incorrect or misleading written information to the claimant can cause serious
consequences. Access control to remaining tracts should be specified so there
can be no misunderstanding on the owner’s part as to the remaining access.
The Agent should prepare the FRM10-B and sufficient copies. The original copy
is for the claimant, a copy will be placed in the Final Report folder on the s
(groups) drive. If there are leaseholds involving Federal Agencies and/or tenant
owned improvements, separate FRM10-B with individual allocations of the offer
will be given to the fee owner, Federal Agency and/or owner of a tenant owned
improvement, when a disclaimer has been secured from the fee owner (FRM10C). Where leases are involved, offers for leaseholds will not be made separately
from the fee interest in the property in the approved appraisal and the FRM10-B
will be given to the owner and copied to the Lessee.
On a claim where a replacement housing payment is involved, a FRM15-G
outlining the amount of the replacement housing payment applicable to that
claim will be prepared and presented to the owner-displacee at the same time
the offer for the right of way is made. The replacement-housing offer is further
discussed in Chapter 15 of this Manual.
10.11 NOTICE TO VACATE
A person lawfully occupying real property cannot be required to move from the
home, farm or business location without being given at least ninety days’ notice
of the date he/ she will be required to vacate the property. This notice must be
given in writing by the state or political subdivision having responsibility for the
acquisition of the property. An exception to this requirement of a ninety-day
notice may be made in very unusual circumstances by the Relocation
Coordinator.
On all claims involving displacees which have been settled or closed, and the
218
owner has received the settlement proceeds, or on which condemnation
proceedings have been instituted, a letter signed by the Division Right of Way
Agent will be mailed first class or hand delivered to the displacee. The date the
person is required to vacate the property must be specified in the written notice,
and that date cannot be less than ninety days from the original relocation offer,
and must be at least 30 days from the acquisition of the property by the
Department. The Agent, in calculating the , must anticipate the time required for
delivery and receipt of the letter.
As stated above, the written notice will not be given until (1) the claim is closed
and the owner has received the settlement proceeds, or (2) the claim has been
condemned by the filing of the declaration of taking. The Agent should maintain
close contact with the closing attorneys so that the letters can be mailed
immediately after the closure of the claim.
Copies of vacate letters to tenants should be sent to the respective lessor
property owners. All owners of personalty, including billboards, barns and out
buildings with personalty therein, must also receive appropriate vacate letters.
Examples of all vacate letters are included in Chapter 15 of the Manual..
10.12 OFFER SUBJECT TO DEPARTMENT OF
TRANSPORTATION APPROVAL
The Agent’s approach to the property owner should be that he is authorized to
recommend settlement to the Department for acceptance of the amount of the
property owner’s offer to settle. Property owners must be made fully aware that
any settlement entered into is not a binding contract until accepted by the
Department of Transportation.
10.13 DISCLOSURE OF APPRAISALS
In the event a property owner submits a written request to the Division R/W
Agent for a copy of the approved appraisal on subject property, the Division R/W
Agent may provide a copy of the approved appraisal to the owner. The Review
Summary (FRM5-S) and Review Certification (FRM5-R) will not be given out
with the appraisal unless the Raleigh R/W Office directs the Division R/W Agent
to do so. If a request for an appraisal is granted, only a copy of the approved
appraisal will be provided to the property owner on a claim on which
condemnation has not been filed. Once condemnation has been filed on a
claim, the appraisal and any other documents in the file are subject to the
judicial rules of discovery. Appraisal should only be given out to a property
owner or their attorney and only for their claim. Occasionally, once a settlement
has been reached, it may be necessary to give a copy of the approved appraisal
219
to a deed of trust or mortgage holder. This may be necessary in order to obtain
a release and it is permissible with a written request.
To reiterate, a copy of an approved appraisal may be provided to the subject
property owner, or their attorney, under the conditions stated above, during the
period of negotiations until the claim has been settled or condemned. Only after
the claim been settled and closed will any parties other than the owners be
permitted to view the appraisal of that property.
10.14 NEW VALUE EVIDENCE
It is conceivable, despite careful study and review that some element of value
was not considered in the appraisal and will be brought to light during the
negotiation. In this event, the Agent will provide such information to the Division
R/W Agent and Area Appraiser for consideration. If this results in a revised
approved appraisal and the original value is voided and superseded, a revised
FRM10-B should be prepared and delivered to the owner with an explanation of
the changes. Under certain circumstances, the Division R/W Agent may make
minor revisions to an approved appraisal. This procedure “know as Red-lining” is
discussed in Chapter 4 of this Manual. Under no circumstances should the
negotiating agent attempt to revise or alter the appraisal.
In the event the Division Right of Way Agent has questions about any item in an
approved appraisal, he/she should contact and discuss the questions with the
Area Negotiator and Area Appraiser.
10.15 PROPERTY OWNER’S APPRAISALS
If property owners inquire if they should obtain an appraisal at their own expense,
the agent will advise the property owner that the Department will consider any
appraisal whose values and/or damages are properly supported and documented
and, that submitting the appraisal to the Department will in no way change
Departmental policy or obligate the Department to revise its offer of just
compensation. The R/W Agent should forward any appraisal provided by the
owner, to the Division R/W Agent who will present it to the Area Appraiser for
review and consideration. Both federal and state regulations do permit the
consideration of an owner’s appraisal, if in proper form, and in some instances,
an owner’s appraisal may have a bearing on the final determination of value.
10.16 NEGOTIATION BY CORRESPONDENCE
The R/W Branch prefers in person contacts, especially for initial contacts and
220
offers as opposed to telephone, letter and email contacts. It is believed that the
communication process works much better in person, with the agent and the
owner able to ask and answer questions promptly, clearly, and instantly. The
process of building trust is generally more successful in person than via other
methods – the agent is able to provide information and instantly receive feedback
from the owner. The owner may be more forthcoming with necessary information
or concerns. The Agent’s availability says to the owner, “you are important” and
this matter is important”. Lastly, in person contacts provide a real person for the
owner to interact with.
All owners residing within the state should be contacted in person. If (1) a
property is owned by an out-of-state owner, (2) the property owners are located
within NC but a very far distance away, or (3) the owner is unwilling to meet face
to face, the agent should first contact the owner by phone and determine if the
owner is planning to or wants to come to the property, and if so, the agent should
arrange to meet the owner in person for the contact. If the owner has no plans to
visit the parcel, or refuses to meet the agent, the agent may write a letter to the
owner advising of the Department’s intent to acquire all or a portion of the
property.
This letter should be as complete as possible in explaining the nature of the
project, the areas to be acquired, how the project will affect this property, depicting cuts, fills, proximity, effects of temporary and permanent construction and
drainage easements, utility easements, control of access, roadway profiles and
typical sections and driveway grades. Included with the letter are copies of the
plan sheets, typical sections, Right of Way Brochure, Title VI Brochure, and a
Relocation Assistance Brochure (if applicable). The agent will advise the owner,
of the Department’s procedure in having the property appraised and his/her right
to accompany the appraiser on an inspection of the property, in providing a
written offer of compensation to be based on the appraisal. If displacees are
involved, the letter should include an explanation of the Department’s relocation
policy, a relocation brochure, an explanation of the notice to vacate, and notice
that an interior inspection of any improvements may be necessary. A copy of the
letter will included with the appraisal request forms on the s (groups) drive.
After receipt and study of the approved appraisal, the agent will contact the
owner and attempt to meet in person. If an in person meeting cannot be
accomplished, the offer should be discussed via telephone and followed up with
a letter. The letter should include the FRM10-B, an explanation of the
department’s offer of just compensation and an explanation of how the property
will be affected by the project. The agent may include the instruments to be
signed if the offer is accepted. The letter should give the appropriate instructions
as to how the deed, deed of easement or option should be executed and
notarized. A time limit for action by the owner should be stated in this letter, and
the need for a prompt reply expressed. The Agent will follow up by
correspondence or telephone if the owner does not promptly reply. If the owner
221
does not reply, the agent will make and fully document additional efforts to
contact the owner, by certified letter, telephone, email, or other appropriate
means.
10.17 NEGOTIATION WITH OWNER (HIS/HER AGENT OR
ATTORNEY)
Typically, negotiations will be carried out directly with the owner of the property.
Sometimes, owners will have other family members or acquaintances present
during negotiations. In some instances, however, the property owner may
designate an agent or an attorney to negotiate in his/her behalf. Whenever the
agent is informed that an owner is represented by an attorney, all further
negotiations shall be conducted through that attorney or with that attorneys
knowledge and permission. The attorney should provide the agent with a letter
stating that he/she represents the owner. If the property owner subsequently
informs the Agent that he/she is no longer represented by counsel, such
notification should be made in writing with a copy to the attorney before
negotiations are discontinued with the attorney and made directly with the
property owner. For a non-attorney to represent an owner and act in the owner’s
behalf, that agent must be a licensed real estate professional in order to be
involved in the negotiations of a settlement.
10.18 NEGOTIATION WITH HEIRS
Where there is a small number of heirs located locally, it may be best to arrange
a meeting with all of the heirs and collectively negotiate with them.
Where some of the heirs are nonresidents, it may be desirable to find out if one
of the heirs is willing to act as attorney-in-fact for the group; if so, power of
attorney forms should be circulated among all the heirs to designate one as their
attorney-in-fact. These forms should be properly executed and notarized since
they must be recorded prior to the instrument of conveyance. If this procedure is
followed, the negotiations and subsequent closure may be greatly simplified.
In the case of heirs or multiple owners of a parcel, the agent should find out how
the proceeds of the settlement should be paid. A provision should be placed in
the instrument specifying how the proceeds will be paid: (1) the amount of the
total consideration to be paid to each heir or (2) the total amount is paid to one of
the heirs or (3) the total is paid to the closing attorney who will distribute the
proceeds according to the heirs desires. See a sample clause in the Chapter 7
forms on s (groups) drive.
222
The Agent may encounter estates with numerous heirs, some of which are
missing and their whereabouts unknown, maybe involving minors and
incompetents, making it virtually impossible to carry on the negotiation. There
will also be instances where the Agent can reach an agreement with some of the
heirs of an estate but not with others. In such instances, the agent should contact
the Assistant State Negotiator or State Negotiator for guidance.
10.19 NEGOTIATION FOR PROPERTY UNDER LEASE
On those claims where property is subject to a lease, the total amount of the offer
should be made to both the lessor (fee owner) and the lessee. The Agent should
inform the lessor and lessee that the Department requires both of them to agree
to the amount of settlement and to execute the right of way deed or easement
and any other instruments needed If their lease agreement does not provide for
division of the proceeds of the acquisition, the Agent should point out to them
that distribution of the proceeds of the acquisition is a matter to be agreed upon
between themselves. Except as to the contributing value of improvements, the
Department’s appraisals will not have an allocation or "breakdown" of the
damages between the lessor and lessee.
During the course of negotiations, the Agent may discover that the real property
being acquired as right of way has been leased by the property owner to a tenant
who has erected a building or has installed other improvements and retains
ownership to them. In such cases, the Uniform Act requires that the tenant
receive just compensation for any buildings, structures or other improvements.
These buildings, structures or improvements are referred to as "tenant-owned
improvements". The tenant is due just compensation even if the lease requires
the tenant to remove any buildings, structures or improvements at the end of the
lease period.
In those cases where (1) the lease or other agreement between the lessor and
the lessee provides that the lessee has no right to receive any of the proceeds of
the acquisition other than for the "tenant-owned" improvements and (2) the lessor
is willing to disclaim all interest in the improvements to the property which are
owned by the lessee, the Agent should negotiate separately with the lessor and
lessee and settle their interests separately with the lessee regardless of whether
or not settlement can be reached with the lessor. Without prior approval from the
Raleigh Office, the Agent should not settle separately with the lessor when a
settlement cannot be reached with the lessee, except as provided for in Section
10.24. With such prior approval from the Raleigh office, the Area Appraiser will
obtain and furnish an allocation, or "breakdown", of the approved appraisal for
the damages between the lessor and lessee. Before negotiating separately with
the lessor and lessee, the Agent must first obtain from the lessor a copy of the
lease or other agreement between the lessor and lessee which provides that the
lessee has no right to receive any of the proceeds of the acquisition other than
223
for the improvements. The Agent must also obtain an executed Disclaimer form
(FRM10-C) from the lessor for all interest in the improvements of the lessee.
When the negotiations with the lessee for the improvements are successful, the
Agent should secure an agreement from the lessee FRM10-D whereby the
lessee transfers all interest in the improvements under lease to the Department.
Retention and removal of the improvements of the lessee should be handled in
accordance with Chapter 9 and 14 of the Manual.
EXAMPLE: John Smith is the fee owner of the land involved in a right of way
claim. There is a one-story metal building located on this land within the right
of way which is used as a repair shop and is owned by Joe Doe. The Agent
would contact John Smith and Joe Doe (separate or joint initial contact) and
obtain a copy of the lease or other agreement which must specify that the
lessee, Joe Doe, would have no right to the proceeds of the acquisition other
than for the improvement (metal building). The Agent would request the
appraisal which would be returned through the normal channels which would
have the value of the metal building separated from the remainder of the
claim. The Agent should then ask John Smith (lessor) to sign the Disclaimer
FRM10-C for any interest he might have in the improvement. If John Smith
signs the disclaimer and the Agent is successful in his/her negotiations with
Joe Doe (owner of the metal building) for the appraised value of the building,
the Agent would have Joe Doe sign an agreement FRM10-D conveying his
interest in the metal building to the Department. The Agent could then
conclude the right of way claim with John Smith through negotiation or
condemnation.
10.20 NEGOTIATION WITH DEPARTMENT OF
TRANSPORTATION EMPLOYEES
The following is Department policy on acquiring right of way from Department of
Transportation employees performing highway functions:
1. The appraisal of any property having damages in excess of two
thousand five hundred dollars ($2,500), owned by an employee of the
Department, shall be made by an independent fee appraiser rather
than by a staff appraiser who is an employee of the Department.
2. The Right of Way Review Board shall pass on the approval of
theappraisal of any employee of the Right of Way Branch, or any other
employee of the Department performing highway functions at salary
grade 73 or above.
3. Right of way acquisitions may be negotiated at the approved appraisal
with employees below salary grade 73.
224
4. Right of way acquired from any employee of the Department
performing highway functions at salary grade 73 or above shall not be
acquired by negotiation but by the filing of a complaint and declaration
of taking.
Acquisition of property owned by or leased by a Board of Transportation member
will be accomplished by the filing of a complaint and declaration of taking.
If there are any questionable situations, the agent should seek guidance from the
Raleigh R/W Office.
10.21 NEGOTIATION WITH LOCAL GOVERNMENT UNITS
In negotiating with local governmental units, the negotiation should be conducted
with the official head or business manager of that unit. For example, with a city
or town, negotiations should be commenced with the mayor or city manager; for
counties, with the chairman of the county Board of Commissioners or county
manager in those few counties having a manager; with school boards, the
chairman of the board or the superintendent of schools. These officials may
negotiate directly with the Agent or they may designate someone else for that
purpose. Minutes of actions by the governmental units authorizing settlements
must be placed in the final report folder on the s (groups) drive.
10.22 NEGOTIATIONS WITH STATE AGENCIES AND
INSTITUTIONS
All state-owned lands, including the Department of Transportation (with the
exception of highway rights of way), are titled to the State of North Carolina and
their uses are allocated to specific agencies or institutions. Chapter 146, Articles
13 and 14 of the General Statutes provide that the acquisition and disposition of
all state-owned lands, with the exception of highway rights of way and material
pits, shall be accomplished through the Department of Administration with the
concurrence of the Governor and the Council of State.. Whenever land allocated
to a state agency or institution is required as for a highway project, an easement
will be made transferring the land from that state agency to the Department of
Transportation for highway purposes. Prior to making the initial contact, the
Agent should contact the State Negotiator’s Office to ascertain whether or not the
Agent, or a representative of the Raleigh Office, should be present at the initial
contact and whether to request an appraisal. The Agent shall make the initial
contact with the appropriate representative of the local agency or institution to
explain the project and its effects on the parcel. After the initial contact, the
Agent will write to the State Negotiator advising that the initial contact has been
made, identifying the location of the property, explaining the effects of the
225
acquisition and forwarding a copy of the FRM4-C. This letter should be placed in
the final report folder on the s (groups) drive copied to the local representative of
the agency involved. After an appraisal has been obtained and studied, the
Agent will forward a copy of the approved appraisal along with any other
pertinent information to the State Negotiator for further handling of the claim with
the State Property Office in the Department of Administration in Raleigh. If
objections to the project or its location are raised on the initial contact by the
officials of the agency or institution, the Raleigh Office should be immediately
notified of such objections. Requests for easements on state-owned property will
be initiated by letter with the Department of Administration by the State
Negotiator’s Office. Improvements of secondary roads and additions to the
system will be handled as indicated above where applicable. The agent should
follow up periodically with the State Negotiator’s office to track the progress of
the acquisition. If delays in the process jeopardize the project schedule, the
Division RW Agent should contact the State Negotiator.
10.23 NEGOTIATION WITH FEDERAL AGENCIES
The acquisition of right of way or easements across lands owned by the United
States of America can only be accomplished through negotiations since states do
not have the power to condemn federal lands. Acquisition on claims involving
Federal lands and agencies will be handled by the State Negotiator’s Office.
The Agent shall make the initial contact with the appropriate representative of the
federal agency to explain the project and its effects on the parcel. After the initial
contact, the Agent will write to the State Negotiator advising that the initial
contact has been made, identifying the location of the property, explaining the
effects of the acquisition and forwarding a copy of the FRM4-C. This letter should
be placed in the final report folder on the s (groups) drive copied to the local
representative of the agency involved. After an appraisal has been obtained and
studied, the Agent will forward a copy of the approved appraisal along with any
other pertinent information to the State Negotiator for further handling of the
claim with the State Property Office in the Department of Administration in
Raleigh. If objections to the project or its location are raised on the initial contact
by the officials of the agency or institution, the Raleigh Office should be
immediately notified of such objections. Negotiations with Federal agencies for
right of way across lands owned by the United States will be conducted in
conformance with the FEDERAL-AID POLICY GUIDE, Subchapter H - Right-ofWay and Environment, Part 712 - The Acquisition Function, Subpart E - Federal
Land Transfers and Direct Federal Acquisition. This same procedure will apply
to acquisition of material sites and interests in lands acquired for other highway
purposes. Improvements of secondary roads and additions to the system will be
handled as indicated above where applicable. The agent should follow up
periodically with the State Negotiator’s office to track the progress of the
acquisition. If delays in the process jeopardize the project schedule, the Division
RW Agent should contact the State Negotiator.
226
It is not uncommon for federal agencies to grant easements rather than fee
simple right of way. In most cases, the easement (or similar document) will be
recorded.
10.24 PROPERTY LEASED TO FEDERAL AGENCIES
On those claims involving property that is leased to Federal agencies, the
leasehold interest will be appraised and assigned a value separate from the fee
interest in the approved appraisal. The Agent will negotiate separately with the
lessor while the State Negotiator’s Office will handle negotiations with the
Federal agency having a leasehold interest in the property. This procedure
should be followed on all claims involving properties that are leased to Federal
agencies. As previously indicated, Federal interests will not be condemned.
10.25 NEGOTIATION WITH THE U. S. FOREST SERVICE
The North Carolina Department of Transportation has entered into a
Memorandum of Understanding with the U. S. Forest Service regarding the
construction of public highways on or across National Forest lands. This
Memorandum of Understanding provides that authorization for use of National
Forest lands will be grouped in the following categories:
a. Federal Aid Highways - Rights of way will be granted through the Federal
Highway Administration pursuant to Section 317 of the Federal Aid
Highway Act of August 27, 1958, (P. L. 85-767; 72 Stat. 885-921;
23U.S.C.), in the form of an easement for rights of way purposes only with
all other rights reserved to the Forest Service.
b. Other Highways and State Roads - (Not Federal Aid) Rights of way will be
authorized by United States Department of Agriculture easements.
c. Borrow Pits, Quarry Sites, Etc. - Use will be authorized by terminable
special use permits.
All requests for right of way across property of the U. S. Forest Service must first
have a Biological, Botanical and Cultural Resources Evaluation prepared for the
project since the U. S. Forest Service will not grant any right of way or right of
entry on any project (primary or secondary) until an evaluation has been
prepared. This process requires approximately six months so the Agent should
request an evaluation through the State Negotiator’s Office as early as possible.
On primary projects, an evaluation should have been made during the planning
process as part of the environmental study, i.e., Environmental Impact
Statement, Categorical Exclusion, etc. On secondary roads, a letter requesting
227
an environmental evaluation or assessment should be requested through the
State Negotiator’s Office as soon as the District Engineer has completed the
priority list. To assist the State Negotiator’s Office, include a copy of the plans
and vicinity map with the area involved shaded in red along with the letter of
request. All applications for rights of way and borrow sites on forest lands will be
made by the State Negotiator’s Office. It will be the responsibility of the agent
assigned to a project to submit necessary property line information or other
information to the Raleigh Office for handling with the Forest Service at the same
time as the Appraisal Request is prepared and submitted to the Area Appraiser.
10.26 NEGOTIATION WITH MUNICIPALITIES AND MUNICIPAL
AGREEMENTS
Highway projects within municipalities are constructed in accordance with a
municipal agreement executed by the Municipality and the Department. The
municipal agreement sets forth such conditions as to whether the Department or
the Municipality will acquire the right of way, participation by the Municipality in
regard to right of way costs, traffic operating control devices, utility provisions,
etc. Preparation of municipal agreements is the responsibility of the
Department’s Programming and TIP Branch.
In some instances, municipalities will agree to be responsible for the acquisition
of proposed rights of way for a project within the boundaries of the municipality.
In these situations, it is the responsibility of the Division Right of Way Office to
insure that rights of way are acquired in compliance with acquisition guidelines,
i.e., the owners are advised of their rights, that appraisals are made and
reviewed (at least by the Appraisal Section), written offers made, adequate
descriptions of rights of way being acquired, etc. It is preferred that all necessary
right of way instruments be prepared by the Division Right of Way office on
departmental forms and deliver them to the municipality for execution. Some
larger municipalities will have their own right of way departments and will secure
the necessary rights of way using their own easement and deed forms and then
convey the right of way to the Department. This applies to all state-system
roads. The Agent should fully cooperation and provide assistance to the
municipality on those projects where the municipality is securing the right of way.
The Division Right of Way Office will furnish the Raleigh Office with the current
status of right of way acquisition on all municipal assisted projects.
On projects where the municipality is securing the right of way, the Agent
should check the acquisition on each individual parcel, including both settled
and condemned claims, to insure that the municipality has secured all of the
necessary rights of way before a Right of Way Field Certification is submitted to
the Raleigh Office. The Right of Way Field Certification is discussed in Chapter
3. of this Manual.
228
10.27 NEGOTIATIONS OF CLAIMS IN BANKRUPTCY
Chapter 11 of the United States Code 363(a) governs bankruptcies. When
bankruptcy has been filed, all actions involving the owner’s property must be
approved by the Bankruptcy Court, including condemnation. This means the
Department cannot acquire the needed right of way property affected by the
bankruptcy without approval of the Bankruptcy Court. All property transfers
during the existence of a stay would be considered void, and in a given situation,
the Department could be held in contempt for ignoring the stay. The Department,
through its attorneys, will need to ask the bankruptcy court to approve the
acquisition of the needed areas.
The Agent should confirm that a bankruptcy proceeding is pending with the
owner and take the following steps:
A.
Find out the name of the individual or entity who has declared
bankruptcy.
B.
Find out the bankruptcy court in which the case has been filed. In North
Carolina, there are three separate bankruptcy court districts, Eastern
District, Middle District and Western District, each of which are divided
into divisions.
C.
Find out the following information about the bankruptcy case from the
property owner and the Clerk of the bankruptcy court in which the case is
filed:
1. the case number
2. the type of bankruptcy case filed, i.e., Chapter 9 - voluntary, by a
municipality; Chapter 7 -involuntary liquidation; Chapter 11 involuntary reorganization, Chapter 12 - voluntary family farmer’s
debt adjustment case; Chapter 13 - voluntary individual’s debt
adjustment case.
3. status of the bankrupt case
4. name, address and telephone number of:
a.the Attorney for the debtor-in-possession (property owner)
b.the Trustee in the case
c.the Judge in the case
The Agent should make an initial or further contact with the property owner and
229
explain that the acquisition must be made through the bankruptcy court and not
with the owner. The Agent shall proceed to obtain an appraisal and a title
opinion of the property. Upon their receipt and with the above pertinent
information, the file will be forwarded to the State Negotiator who will, in turn,
send the file to the Attorney General’s Office requesting a modification of the stay
order to allow the acquisition of right of way either by deed of easement or
condemnation. Due to the unknown time element in seeking a modification of
the stay order from the bankruptcy court, the handling of the claim should be
done in expeditious manner to prevent delays in meeting the project acquisition
schedule. After a stay order has been modified, the Attorney General’s Office
will instruct how the acquisition will be finalized.
10.28 ENTRY AGREEMENTS
G.S. 136-118 provides that with the written consent of the property owner, the
Department may enter onto a property and proceed with construction, even in the
absence of reaching a settlement or filing condemnation. In certain situations the
Department may elect to proceed with construction with the written permission of
the property owner provided in the form of an Agreement for Entry FRM10-E.
These conditions may be:
1. when conditions have prevented a settlement from being reached
2. when it is desirable to delay condemnation for further negotiations
3. when a condemnation action has been recalled due to settlement, but right
of way certification is required prior to closure of the claim.
In general, the use of Agreements for Entry is discouraged as it usually results in
prolonging the negotiations and extending the time of completing the r/w
acquisition. In addition, changes may occur to the property which could increase
the amount of compensation the Department may have to pay. Where the Agent
feels that it is advisable to secure an Agreement for Entry, full details and
reasons should be discussed with the Division R/W Agent and consent obtained
before entering into any entry agreement. Upon obtaining an Agreement for
Entry from an owner, the Agent should scan the agreement into the final report
folder of the s (groups) drive. A running total number of entry agreements in
force on a project should be reported on the Division’s Monthly Primary Report.
Whenever an impasse to negotiations has been reached, either the Department
or the owner may request condemnation proceedings be initiated on the claim. It
is incumbent upon the Agent and the Division Right of Way Office to monitor all
agreements for entry to insure that right of way is acquired in a timely manner –
all of the right of way needed for the project should be acquired, by
condemnation if necessary before construction is completed on the project.
Parcels with entry agreements will not be listed on r/w certifications since the
230
Department has legal access on the parcel.
Note: It is permissible to recall (cancel) a scheduled condemnation action if an
entry agreement is secured. However, this practice is not encouraged unless the
Division R/W Agent is certain a settlement is eminent.
10.29 PLAN REVISIONS
In general, once a project is in the acquisition phase, revisions will be initiated by
the Division R/W Office, or the Design Unit.
Once the initial contacts are made, the project agent should compile a list of
proposed revisions. Any plan revisions involving the design of the project,
including control of access, access point widths and location, driveways,
drainage, r/w and easement modification, and working around items should be
first discussed with and approved by the Division Office. All revisions are to be
marked in red on full plan sheets (either ½ size or full size) and explained on
FRM10-G. Other revisions may include revisions involving property lines existing
r/w, owner names, and deed references and these do not need Division Office
approval. However, Location & Surveys Unit must make revisions involving
property lines existing r/w, owner names, and deed references. Therefore, any of
these revisions are present, a copy of the FRM10-G and the revisions should
also be sent to the Locating Engineer for the Division with a courtesy copy of the
FRM10- sent to the State Location Engineer. It is advisable for the Agent or
Division R/W Agent to discuss revisions involving Location & Surveys with them
as soon as possible – failure to do so may delay the addition of the revisions to
the project plans.
The agent should review all proposed revisions with the Division R/W Agent. If
the Division R/W Agent concurs with the changes, he/she will sign the FRM10at the top left. and transmit the revisions to the Assistant State Negotiator for
approval. The Assistant State Negotiator will approve the revision and transmit
them to the Raleigh R/W Office. The Raleigh R/W Office will send the revisions
to the Utility Unit for their concurrence. If there are no conflicts the revisions will
go back to the Raleigh R/W Office ands then to the Design Unit for incorporation
into the plans. Once revision have been made by the Design Unit, the plan
sheets are printed and distributed to various units. The cadd section of the
Raleigh R/W office will prepare revised cadd descriptions for affected parcels and
notify the Division R/W Office. The revised sheets should be promptly distributed
to all agents on the project. The agents should carefully review the revisions to
makes sure all revisions were made and to see if any additional changes were
made.
On large projects, it may be preferred to send revisions in groups of plan sheets
rather than waiting until all initial contacts have been made. The Agent should
231
work to make sure all revisions to be made on a particular plan sheet are
submitted at one time, in order to save both paper and the Roadway Design
Department from having to make numerous changes to one particular plan sheet.
The plan revision process should be repeated again prior to the pre-let meeting
towards the end of the r/w acquisition, or on an as needed basis.
It is imperative that the Administrative Unit has a correct set of plans for checking
purposes. As previously stated, if there is a revision on a settled claim that is not
shown of the printed set of plans, the Agent should include a plan revision sketch
with the final report and note this on the FRM12-A. A condemnation final report
should not be submitted for a parcel, if there are pending plans revisions on that
parcel. All corrections in property lines, ownership, areas, etc., should be shown
on the final letting plans for a project. At the time a project is let, a copy of the
final letting set of plans will be forwarded to the Division Right of Way Agent for
checking. It will be the responsibility of the Agent in charge of the project to check
these plans to see if there are any further corrections to be made, and any such
corrections should immediately be brought to the attention of the Raleigh Office.
It will further be the responsibility of the Division Right of Way Agent to check and
sign the final estimate plans for a project upon completion of construction. Any
changes which may have occurred during construction should be shown on the
final estimate plans. This is very important since plans will be become the
permanent Department record for both construction and right of way for the
project.
Revisions may also be initiated by the Design Unit or the Utility Unit. Upon
receipt of these revisions, the agent should study the revisions and determine
whether new claims were created or whether existing claims need to be revised.
10.30 ADMINISTRATIVE ADJUSTMENTS
The Right of Way Agent should make a concerted effort to settle all claims on for
the approved appraisal. The Agent should be cautious in making administrative
increases over the offer in the beginning stages of a project because this may
hinder effective negotiations on other parcels. In complying with the guideline
that all claims should be negotiated expeditiously, the prudent use of
administrative increases may be advantageous from a time management
perspective and, more importantly, from a condemnation avoidance and a
litigation cost standpoint. All administrative increases should be justified.
On both State and Federal-aid projects, administrative increase
thresholds for settlements above the approved appraisals are authorized
as follows:
• skilled Right of Way Agent Trainees up to $1,000.
232
• skilled Right of Way Agents up to $2,500.
• Senior Right of Way Agents – adjustments on all claims up to $7,500 and
10% on claims with an approved appraisal of $100,000 or less..
• Division Right of Way Agents – adjustments on all claims with an approved
appraisal of $50,000 or less and 20% on claims with an approved
appraisal of up to $250,000 or less.
• Area Negotiators – adjustments on all claims with an approved appraisal of
up to $50,000 or less and 25% on claims with an approved appraisal of
$500,000 or less
• State Right of Way Negotiator, Assistant State Negotiator, Manager of the
Right of Way Branch, Assistant Manager of the Right of Way Branch, or
– adjustments above 25% on claims with an approved appraisal of less
than $500,000.00; Adjustments up to 40% for claims with an approved
appraisal of $500,000.00 up to $1,000,000.00
• All settlements that exceed 40% above the approved appraisal of
$500,000.00 or more or settlements that exceed $1,000,000.00 must be
reviewed by the Right of Way Review Board prior to settlement by the
Right of Way Branch or Attorney General’s Office.
• On condemnation claims for which the amount of deposit is $500,000.00 or
more and with an expected settlement increase of 40% or more, the Right
of Way review Board will, prior to mediation, review claims appraisals, and
previous efforts to settle. The Right of Way Review Board will provide the
Attorney General’s staff a settlement amount for negotiating up to, prior to
trial. Some claims may require additional consideration by the Right of
Way review Board before a decisions is made to take the claim to trial.
Any settlement of $1,000,000.00 or above will require the approval of the
Secretary of transportation.
An Administrative Adjustment Form (FRM10-F) will not be necessary on
administrative adjustments on the following premises:
1. When the administrative increase on the claim is less than $4,500, under
Item 5 of the Final Report Check List (FRM12-B) must be completed
and will serve as the approval of the administrative increase.
2. When the claim is settled for $10,000 or less, under Item 5 of the
Final Report Checklist (FRM12-B) must be completed and will serve
as the approval of the administrative adjustment.
233
For all other settlements not mentioned above, an Administrative
Adjustment/Condemnation Review Form (FRM10-F) with
approved/recommended settlement authority or condemnation
recommendation by the Division Agent and/or Area Negotiator will be
electronically filed and notification emailed to the Assistant State Negotiator.
The Assistant State Negotiator and/or the Manager or Assistant Manager of
Right of Way will review and approve settlements for amounts above the
Area Negotiator’s threshold and/or recommend condemnation action. The
approved FRM10-F will remain in the project/parcel file directory.
Administrative adjustments should be based upon what pertinent information,
including trial risks, supports the settlement. All particulars should be explained
in the remark section of FRM10-F.
10.31 NEGOTIATIONS - ADMINISTRATIVE
ADJUSTMENTS INVOLVING REPLACEMENT
HOUSING PAYMENT
The Agent must be most careful in negotiating claims where there is a
replacement housing payment (hereafter referred to as RHP) involved and also
on those claims involving administrative adjustments and an RHP. The amount of
the RHP will be reduced when there is an administrative adjustment involved.
Also, the claimant must obligate all of the amount of the approved appraisal (for
house and lot only) plus any portion or all of the approved RHP offered in the
purchase of replacement housing in order to qualify to receive a portion or all of
the approved RHP. The Agent should not make any commitment to the claimant
as to the amount of the approved RHP he /she will actually receive since the
amount is conditional upon the expenditure for the purchase of the replacement
housing. The Agent should explain that the claimant must meet all qualifications
in order to receive the RHP. If there is an administrative adjustment involved in
the settlement of the claim, the Agent should advise the claimant that the RHP
will be reduced.
Regulations require that an owner-occupant’s RHP be adjusted when the
settlement amount is more than the amount of the approved appraisal. This
requirement necessitates the proration of the administrative increase on claims
involving farm acreages, acreage tracts, or misplaced improvements on other
lands when the value of the improvement must be extracted from the approved
appraisal and/or the value of a typical lot must be determined from the market.
During an evaluation of the property for relocation assistance benefits, the
percentage of the approved appraisal amount applicable to the value of a typical
house and lot will be calculated and placed on the cover sheet of the approved
appraisal. When negotiating a settlement, the percentage stamped on the
approved appraisal will be used to compute the amount to be deducted from the
original RHP. The Agent should determine the amount to be deducted and
234
advise the owner of the adjusted RHP for which he/she may qualify. Knowledge
of computation methods for calculating reductions in RHP’s are essential to the
successful negotiation of a claim of this type.
Example 1:
In a hypothetical situation, the amount of the administrative increase over the
amount of the approved appraisal is $5,000, and the percentage stamped on
the approved appraisal is 40%. The original RHP was indicated as $3,000.
To determine the amount of reduction of the RHP, the Agent should multiply
$5,000 (the amount of the administrative increase) by 40% (the indicated
percentage applicable to the value of the typical house and lot) resulting in a
$2,000 amount by which the RHP would be reduced. By subtracting this
$2,000 figure from the original RHP amount of $3,000, the adjusted RHP
would be $1,000 and the amount to which the owner would be entitled if
he/she qualifies.
Example 2:
In this situation, the property being acquired consists of 10 acres out of a
thirty-acre tract plus the owner’s residence. An adjusted RHP will be
computed as follows:
1. Value of typical house and lot
(as determined from the approved appraisal $10,000
and local residential homesite for sale
2. Approved Appraisal Amount
$15,000
3. Original RHP
$ 5,000
4 Percentage Applicable to 1. Above $10,000/$15,000 = 67% of total acquisi
tion price
5. Amount of Settlement
$17,000
6. Amount of Administrative Adjustment (over amount of approved appraisal)
$ 2,000
7. Amount of Adjusted RHP (67% x @2,000 = $1,340: $5,000 - $1,340 =
$3,660
$ 3,660
235
10.32 CONDEMNATION REVIEW FORM
If all the necessary executed instruments cannot be obtained from the owners
within the specified schedule, the Agent will complete FRM10-F and review it
with the Division R/W Agent and Area Negotiator. The Area Negotiator will
review FRM10-F and make any recommendations for further negotiations or
other actions to be taken on the claim and sign the form. The Area Negotiator
will transmit the signed FRM10-F to the Assistant State Negotiator for approval of
a recommended course of action and signature before condemnation is filed.
The completed/signed FRM10-F will be transmitted back to the original parties.
The Agent handling the project shall take prompt and appropriate action on any
instructions regarding further negotiations of the claim before condemnation is
actually filed. The Agent places the approved FRM10-f in the final report folder
on the s (groups) drive before submitting the final report.
Note: Some Agents/Area Negotiators may prefer to place the FRM10-f on the
groups or share drive to be signed rather than email the form. This is acceptable
and is at the discretion of the Assistant State Negotiator.
10.33 CLEARANCE OF RIGHT OF WAY
Upon completion of acquisition, the agent should inspect the project for
improvements/structures, making sure all items are accounted for, inspected
and/or abated for asbestos and have been disposed of or will be disposed of as
set out in Chapter 14,the Property Management Section of this Manual. A list of
remaining improvements/structures should be submitted to the State Negotiator’s
Office to be included in the roadway contract as Series 200 items. Upon
completion of negotiations and submittals of requests for condemnations being
made, the Agent should submit to the Raleigh Office a listing of all improvements
that are to be removed or demolished. This subject is covered in detail in
Chapter 14, the Property Management Section of this Manual.
10.34 ITEMS OF WORK TO BE INCLUDED IN CONTRACT
The Division R/W Agent will notify the State Negotiator’s Office of any specific
items of work to be done as part of the contract such as fence resetting, etc.
The Division Engineer and Resident Engineer should be copied on the notice.
Such work should be anticipated as far in advance as possible so it can be made
a contract item rather than having to later resort to change orders resulting in
added contract costs.
10.35 PRE-CONSTRUCTION CONFERENCE
236
After the project letting but prior to the availability date to the constrictor, the
Division Construction Engineer (or his/her designate) will arrange a preconstruction meeting with the contractor. The project Agent and/or Division R/W
Agent should attend this meeting. The Agent will provide a memorandum to the
Division Construction Engineer indicating the following:
1.
2.
3.
4.
5.
6.
7.
8.
9.
list of parcels condemned
any 215 series items (structures) that have been removed
copies of asbestos inspection reports for any remaining structures
the status of any delay of entries
any special provisions or items of work agreed upon with a property owner
(an example is working around a tree or sign, if a note is not on the plans)
any unusual or contentious issues encountered during acquisition
status if known of any contamination removal
any pending revisions to the plans
copies of right of way agreements
10.36 TORT CLAIMS
In general, tort claims may be defined as those claims arising from a negligent
act of any officer, employee, involuntary servant or agent of the state while acting
within the scope of his office, employment, service or authority. Some claims of
this type are damages resulting from blasting, damages to person or property, or
the negligent operation of motor vehicles or other equipment, or, in some
instances, various categories of drainage complaints. Tort claims are not to be
confused with condemnation, and under no circumstances are damages resulting
from such claims to be negotiated by the Right of Way Branch. Chapter 143,
Article 31, of the General Statutes provides that the North Carolina Industrial
Commission is constituted as a court for the purpose of hearing and passing
upon tort claims against the Department of Transportation.
237
CHAPTER 11 - CLEARANCE OF
SUBORDINATE INTERESTS
11.01 GENERAL REQUIREMENTS
All interests which are adverse or detrimental to the interests of the Department
of Transportation and to the purposes for which land or easement in land is being
acquired should be eliminated from property being acquired. Due consideration
shall be given to both the actual and potential effects of each exception in the title
report. If such exceptions are in any way adverse to the interest of the state,
appropriate actions to eliminate or subordinate such exceptions should be taken.
Unless instructions to the contrary are issued by the Raleigh office, all interests,
which were made, imposed, or suffered by the grantors and/or previous owners,
shall be cleared prior to submission of the Final Report or prior to or upon closing
of the transaction. These exceptions include mortgages, deeds of trust, leases,
judgments, contracts of sale, taxes, assessments, improvement liens, easements
or other liens of record.
Where subordinate interests are to be cleared or eliminated by separate
instruments, such instruments should receive prior approval of the Deputy
Attorney General or the local abstracting attorney for the Department. These
instruments should be executed and acknowledged in proper form for
recording.
11.02 DEEDS OF TRUST & MORTGAGES
On both Federal-aid and State-funded projects, deed of trust releases may be
waived on claims where the settlement is not over $25,000.00. There should be
sufficient value in the area remaining to cover the outstanding balance on the
deed of trust. The waiver should be notes in the remarks section of FRM12-A
(Final Report). The waiver of deeds of trust releases on claims with settlements
above $25,000.00 must receive approval from the Assistant State
Negotiator/State Negotiator.
When it is necessary to clear Deeds of Trust, one of the following methods
should be used:
1.
The deed of trust may be paid off and cancelled by the property owner
prior to closing.
238
2.
The Department’s closing attorney may pay off and cancel the deed of
trust out of the settlement proceeds
3.
A separate instrument may be executed by the beneficiary and trustee,
and recorded, releasing from the deed of trust that portion of the property to be
acquired by the Department. The release should specify to whom the fund
should be paid. See also Chapter 7 and FRM7-L.
4.
The beneficiary and the trustee of the deed of trust may execute the same
easement/deed as the property owners and their names should appear in the
heading or caption. The easement/deed should specify in the special provisions
how the proceeds should be paid. (See Section 8.14)
In most instances where a trustee joins in the execution of a Deed/Easement, he
does so only for the purpose of releasing the property from the operation of deed
of trust and not for warranty of title, in which case the following clause may be
added to the agreement:
The undersigned trustee joins in the execution of this easement only for the
purpose of releasing the above property from a Deed of Trust recorded in
Book ______, Page ______ from (Name of Grantor) to the undersigned as
trustee for (Name of beneficiary of Deed of Trust) and for no other purpose.
After settlement has been reached with the property owner(s), the Agent should
determine if a deed of trust must be cleared. If so, the Agent should inform the
property owner and solicit their assistance should a release be needed.
It is important that the Agent contact the holder of the deed of trust (typically a
financial institution) and explain the acquisition by furnishing plan sheets and the
amount of the Department’s offer. The Agent should follow this procedure
especially in those cases involving a partial acquisition of the property. Very
often the trustee will not agree to execute the release or deed/easement until
the beneficiary in the deed of trust has executed the instrument. The
beneficiary may require a copy of the appraisal and it is permissible to provide a
copy of the approved appraisal (not including the review certification and review
summary) Fees for releases may be required and will be paid, if reasonable.
In general, mortgages should be handled in a manner similar to that of deeds of
trust.
11.03 LEASES & JUDGMENTS
Leasehold interests should be cleared by one of the following methods:
239
1. By the lessee joining in the execution of the Deed of Easement or deed.
2. By separate lease release (FRM7-M) from the lessee made either to the
lessor or to the Department. The lease release, if to the lessor, should be
recorded prior to the close of the transaction.
3. By automatic cancellation of the lease under the terms of the lease.
A determination of how much of the settlement, if any, is to be paid to the lessee
needs to be made prior to execution of release instruments. The release should
specify to whom the fund should be paid. See also Chapter 7 and FRM7-M.
Judgments are to be paid off and cancelled or appropriate releases of judgments
are to be secured and cleared of record; however, in the case of partial takings
where the value of the remainder is more than ample to satisfy such liens, this
requirement may be waived with the written consent of the Raleigh office. If the
total amount of judgments and/or other liens on record against the subject
property exceed the value of the property, the Agent should secure the advice of
the Raleigh office before closing the transaction.
11.04 CONTRACTS OF SALE
Where a property is encumbered by a contract of sale, such interest should be
cleared (1) by both the vendee and vendor being made parties to the Deed of
Easement or deed to the state or (2) by the vendee conveying his interest to the
vendor or to the Department by quitclaim deed or other appropriate instrument.
Such quitclaim deed or other instrument, if made to the vendor, should be
recorded prior to the closing of the transaction.
11.05 PENDING ACTIONS
Any pending court action involving an interest in right of way to be acquired
should either be dismissed, or the parties to the action should join in the
execution of the Deed of Easement, or such parties should deliver to the
Department a quitclaim deed or other appropriate release. Seek input from the
Assistant State Negotiator where uncertainty exists.
11.06 PUBLIC UTILITY EASEMENTS
As a rule, public utility easements over property acquired for right of way need
not be considered in clearing subordinate interests as they will be extinguished in
connection with the removal of utilities from the right of way or will be permitted to
remain in effect if occupancy of the highway right of way by the utility is not
inconsistent with the operation of the highway. Seek input from the Assistant
240
State Negotiator where uncertainty exists.
11.07 PRIVATE EASEMENTS
All easements considered adverse to the use and occupancy of the highway right
of way should be cleared by negotiation with the owners of such easement rights.
Easements falling in this category may include driveways, private roads, private
water lines, drainage easements, etc. Such easements may be cleared by
providing substitute easements or by cash payment based on appropriate
appraisals. Care should be taken to examine such easements to determine
whether access is being severed or affected by the acquisition. Seek input from
the Assistant State Negotiator where uncertainty exists.
11.08 COVENANTS, CONDITIONS, AND RESTRICTIONS
Title may be taken subject to the conventional type of tract restrictions, provided
that the nature and effect of such restrictions are known and considered. Unusual
covenants or conditions whereby land is conveyed or restricted for a specific use,
such as parks, schools, hospitals, railroads, etc., shall be carefully considered,
particularly as to the possibility of forfeiture of title upon breach or violation. Such
conveyances may have reversionary clauses; if so, quitclaim deeds or other
suitable releases should be secured in order to clear such rights of reversion. In
cases of uncertainty regarding the title to such properties, the advice of the
Raleigh office should be secured before proceeding with closing the claim.
11.09 CITY AND COUNTY TAXES
G.S. 136-163 authorizes the Department to prorate ad valorem taxes between it
and the property owner. City and County Taxes are the responsibility of the
Department from the time a deed is recorded or the date of taking to the end of
the year in which the acquisition occurred. The remainder of the taxes, and all
back taxes, should be paid by the property owner except for eligible deferred and
recapture taxes authorized under G S 136-121.1.
The Department only pays property taxes when it acquires right of way or
residues. It does not pay property taxes on drainage, utility, or temporary
easement or when control of access only is acquired.
In the case of a total acquisition or a partial acquisition involving substantial
compensation, if the taxes are due, the total amount of taxes should be paid out
of the settlement proceeds by the closing attorney and the paid receipt submitted
to the Division R/W Agent with the closing papers.
241
If the taxes were paid by the owner prior to closing, the closing attorney should
submit a copy of the paid tax receipt to the Division R/W Agent with the closing
papers.
If the taxes are not due, the closing attorney should withhold from the settlement
proceeds or collect from the owner an amount equal to the entire prior year tax
bill. This withheld or collected amount should be forwarded to the Division Right
of Way office with the closing papers. The Division Right of Way Agent shall
forward the check for the taxes, along with FRM14-E, to the State Administrative
Agent in the Central Right of Way office. This check will be placed in escrow until
the taxes are due and the property owner should be instructed (FRM11-A) to
send his tax notice to the Division Right of Way office as soon as it is received so
the escrowed taxes can be paid and the owner can be reimbursed his/her prorata
share.
NOTE: In the case of escrowed funds for property taxes, it is important that
the Division R/W Office keep a log of all funds submitted to the Central,
R/W Office. The Division RW Office should in the fall of the year, obtain a
copy of the tax bills for all parcels where escrowed funds were submitted.
Theses bills should be submitted for proration (FRM11-B) so that the
Department does not incur any late payment penalties.
In the case of a partial acquisition involving minor compensation when the taxes
are due, the closing attorney or Right of Way agent may instruct the property
owner pay the taxes and then forward the paid tax receipt to the Division Right of
Way office. When the taxes are not due, the property owner should be instructed
to pay the taxes when they become due and then forward the paid tax receipt to
the Division Right of Way office.
On claims where the only acquisition is control of access, there will be no
proration of taxes.
The proration of property taxes by the right of way agent or the closing attorney
should be avoided if possible. The "General Instructions to Closing Attorneys"
(FRM12-G) does provide for the proration of taxes by the closing attorney where
the tax liability for the whole tract is substantial when compared to the amount of
settlement involving a partial acquisition and poses a hardship on the property
owner to pay the entire tax.
The proration of the property taxes, no matter which of the above methods is
used, will be based on the value of the property acquired as opposed to its total
value and upon the respective periods of ownership during the current year
between the property owner and the Department. Reimbursement to the owner
will be determined by a proration of the present taxes due at the current or
adjusted tax rates for that portion of the year that he/ she was not in ownership.
The property owner should be requested to submit his tax notice or paid tax
242
receipt to the Division Right of Way office upon receipt from the tax office. This
should be done by a letter at the time of closing or the time the property is
condemned (FRM 11-A). If the warrant is sent by the Division Right of Way
Office, FRM12-E will be used, except for claims involving only a Temporary
Easement where a FRM12-EE will be used. FRM11-A will be necessary for
claims when the closings are handled by the abstracting attorney and also for
condemned claims. The FRM12-E, FRM12-EE, or FRM11-A will be placed in the
s drive in the parcel closing folder.
The tax notices/receipts received in the Right of Way office should be checked
by the Agent who handled the claim to insure they cover the property acquired.
The Agent should complete FRM11-B, place it and the scanned receipts/notices
in the s drive in the parcel tax proration folder, and send an email to the
appropriate Administrative Unit personnel.
A review of the notice or receipt should be made to see if the payee is the same
as the name of the claimant, any changes of address of the owner, the correct
social security number of the payee, etc.
The notice or receipt should cover only the area shown on the approved
appraisal. If it covers more than the total area of the claim affected by the taking,
this should be noted on the cover letter. The taxes will then be prorated and the
owner will be reimbursed according to the aforementioned proration. A payment
will then be sent to the tax office.
When unusual situations occur such as annexations, etc.), special instructions
from the Raleigh Central office will be needed. No taxes will be paid on property
annexed into a municipality after it has been acquired by the Department. For
property annexed before acquisition, the property owner should pay the taxes
and then be reimbursed by the Department.
11.10 DEFERRED TAXES
In North Carolina, a property may be taxed at a lower rate by the County Tax
Assessor under certain rules. This is generally called “Deferred Taxes”.
Typically, the owner will pay a lower tax rate as long as the property is
maintained under a certain conditions, such as farm land, or timber land. The
lower rate may also apply so long as there is a certain amount of acreage. When
a portion of the property is sold, the tax office will calculate the amount of taxes
that the owner “would have” paid at the normal rate and require the owbner to
pay this amount. In addition, the Tax Office may determine that the remaining
property, located outside the right of way, is no longer eleigible for deferred tax
status and require payment for that area also.
243
Typically, the Department will pay the amount charged by the Tax Office as a
result of the acquisition. The Department pays the amount of deferred taxes due
for the current year and former 3 years. The Department will also prorate the
taxes due for the right of way acquired.
When the Department settles a claim where a portion of a property in deferred
tax status is to be acquired as right of way, the agent should contact the county
tax office and request two items of information:
1. Find out if the remaining property’s deferment lost? That is, is the
remaining property allowed to continue in a deferred tax status?
2. What is the amount due for the loss of the deferred status? The tax office
should provide a statement that itemizes the amount due for each year.
The agent should make every effort to pay the deferred taxes at closing. With
proper documentation, the agent may include the Tax Collector as a separate
payee on the final report, or, if the settlement is being paid to the closing
attorney, the agent may include the tax due in the check being paid to the
closing attorney. The taxes must be coded in a separate line on the frm12-a
from the settlement amount.
If the deferred taxes are not paid at closing, the Agent should complete FRM11B, place it and the scanned receipts/notices in the s drive in the parcel tax
proration folder, and send an email to the appropriate Administrative Unit
personnel.
If a claimant disagrees with the Department’s proration of property taxes, the
claimant has the right of appeal to the Manager of Right of Way, the State
Highway Administrator, the State Court and Federal Court, if necessary. The
claimant also has the right to be represented by legal counsel or other
representatives in connection with his appeal but solely at the claimant’s
expense.
11.11 FEDERAL AND STATE INCOME, SALES, AND ESTATE
TAXES
Federal and state income, sales, inheritance, gift, and franchise taxes, and the
like, do not constitute a lien upon property. These taxes may be ignored unless
there is a judgment or other lien for such taxes on record, in which case such
liens should be cleared by the grantor upon closing.
244
11.12 LISTING TAXES AFTER DATE OF TAKING
In those instances where an entire property has been acquired by the
Department, either through closing or condemnation, the claimant should not list
that property for taxes since the title at listing time vests in the Department. This
may save the owner from paying a tax actually not due and may prevent confusion in the tax assessor’s office. The Department should not honor any tax
statement rendered by a city, town, or county for taxes listed by a grantor after
the date of taking. The Department does not pay property taxes on property it
owns as of January 1st.
11.13 ASSESSMENTS
Where an entire property is taken, all special assessments, such as paving,
water, sewer, drainage districts, etc., shall be paid in full by the grantor, including
any future and unpaid installments thereof (may be paid out of the closing
proceeds by the closing attorney). In the case of partial takings, the grantor will
not have to pay all assessments, provided that the remaining area is of sufficient
value to satisfy such assessments and other liens not to be cleared.
245
Chapter 12 CLOSURE AND DELIVERY
12.01 GENERAL PROCEDURE
Immediately after a settlement has been reached and all necessary instruments
have been obtained, the Right of Way Agent will prepare a Final Report
consisting of all supporting documents. The Final Report will be reviewed and
approved by the Division R/W Agent and transmitted to the Administrative Unit
for processing. The Final Report will be checked by the Checking Section of the
Administrative Unit, and if approved, will be submitted to the appropriate persons
approval for payment. After this final approval, a warrant for payment will be
secured from the Controller through the Fiscal Section and the checks are
transmitted to the appropriate Division Right of Way office or mailed if necessary
to the Right of Way Consultant.
Upon receipt of the warrant, the Right of Way Agent will arrange for the closing.
Closings are completed in two ways:
(1) The Agent records the instruments and delivers the checks or
(2) the closing attorney records the instruments and delivers the checks.
In order to insure good public relations, and as a matter of good business
practice, it is essential to make payment to the property owner as soon as
possible after the settlement has been reached. The property owner should be
given a realistic timeframe within which the closing will take place. The Agent
and Division R/W Agent should monitor the status of the final report processing
to insure a prompt closing, and should investigate any perceived delays after the
transmission of the final report. Following recordation and delivery of payments,
the Agent will prepare and submit a closing package.
12.02 ACCEPTANCE OF INSTRUMENTS
Only the Manager of the Right of Way Branch, Assistant Manager of the Right of
Way Branch, and Division R/W Agents are authorized to accept right of way
instruments. R/W instruments should be signed in the accepted by section only
after all approvals have been granted. Generally, this will be after the Division
R/W Office receives the warrant needed to close the claim.
12.03 REVENUE (EXCISE) STAMPS
246
General Statue 105-228.30 requires that excise taxes, commonly
referred to as revenue stamps or deed stamps, be paid on each
instrument by which any interest in real estate is conveyed. In
private real estate transactions, the seller typically pays these fees.
However, the Department will pay the revenue stamps for any
acquisition involving monetary consideration. This amount should be
included in the payment requested through the final report to be
made to the Register of Deeds. The amount to be paid is one dollar
($1.00) per each five hundred dollars ($500.00) or fractional part
thereof of the amount paid to the owners.
The total amount of the revenue stamps and the recording fees
should be indicated on the Final Report Checklist as well as on the
Final Report. Revenue stamps are not applicable on secondary road
agreements that do not involve any monetary consideration.
Furthermore, no revenue stamps are paid on donations.
For any unusual circumstances regarding revenue stamps, the Division R/W
Agent should contact the Assistant State Negotiator.
12.04 PREPARATION OF THE FINAL REPORT
Final Reports are used for all settled claims, as well as other payments such as
release fees, recording fees, copy charges, borrow or fill material, payment for
moving, removal, demolition, or alteration of buildings or other improvements not
covered by contract. damage claims, etc. Final reports are to be placed in the
parcel final report folder on the s (groups) drives.
All final reports must have FRM12-B, FRM12-A, and any other forms and
documents necessary to process the payment.
All Final Report folders should contain the following documents
1. Final Report Checklist (FRM12-B)
a. all questions answered
b. signed by Agent and Division R/W Agent
2. Final Report (FRM12-A)
a. all questions answered (see below)
b. signed by Agent and Division R/W Agent
3. All Diaries (FRM 4-C, 4-D, 4-E and continuation sheets 4-F)
a. all entries must be complete and signed
b. the affidavit section at the top & bottom of FRM4-C must be signed
247
4. All correspondence (scanned and named as Gencor
5. Any other pertinent documents scanned and named Gencor-_____
6. Offer to Purchase (FRM10-B)
a. areas must match latest approved appraisal/claim report
b. all improvements being acquired must be shown
c. signed/dated by Agent
7. Memo approving offer to purchase remnant (if applicable)
8. Preliminary Certificate of Title (FRM6-C), if required
a. parcels numbers correct
b. signed/dated by Agent
9. Instrument(s) of conveyance (scanned)
a. properly signed/notarized
b. names typed in heading and under signatures
c. complete mailing address for each grantor in heading
d. amount of revenue stamps inserted, if applicable
e. all appropriate clauses inserted
10. Scanned plan revision sketch, if plans are in error
11. Taxpayer Identification (FRM4-M)
12. Residue Card & Sketch FRM14-X and FRM14-W, if applicable
13. Administrative Adjustment (FRM10-F), if applicable.
14. Adjusted Appraisal (FRM5-K, FRM5-S) (Red-Lined appraisal)
15. FRM4-N (Right of Way Claim Report), if applicable
16. Copy of Trust Agreement or Power of Attorney, if applicable
The Final Report (FRM12-A) should be completed as follows:
SUBJECT: Claim of (name of owner as shown on plans)_. If the
name changes, the original name of the claimants will be shown in
parenthesis after the current name.
WBS Element: Insert the wbs element used for r/w acquisition
DATE: Insert the final report is prepared by Agent
TIP/PARCEL: Insert the parcel number (Example: R-2633B 001); only one
parcel per final report
County: Insert the county where the property is located. If the property is
located in two counties, list both counties (Example: Pender/Onslow)
Plan Sheet Number(s): list all plan sheets showing the parcel
248
Payee Box
PAYEE/ADDRESS Enter the name and address of the payee(s). The address
must correspond with the payee’s address shown on the FRM4-M The marital
status of an individual as payee(s) should also be shown.
•
When the instrument specifies that the payment is to be made to a certain
individual or entity, such as the closing attorney, the name of that
individual, entity, or closing attorney is listed as the payee
•
When a property is held by a trustee under a trust, the payment is made to
the trust, unless specified otherwise on the instrument
•
When a property is held by a partnership, the payment is made to the
partnership, unless specified otherwise on the instrument
•
Churches or institutions where trustees involved: The name of the church
or institution and their tax identification number should be used rather than
the names of the trustees.
$: Enter the total consideration to be paid to the payee
•
If the Closing attorney is to disburse funds with warrant issued in the name
of the closing attorney; Tax identification number for attorney's trust
account to be used.
TIN# is the payee’s number as shown on the FRM4-M; All payees, including nonprofit/tax exempt organizations, must have a tax identification number in order for
a warrant to be issued for payment and without an identification number being
submitted, no warrant will be issued by Fiscal.
DOC# is left blank
Vendor # is the number assigned by the fiscal section
Acct Assignment Payee:
GL Code – Cost Center-WBS-Function Code-TIP/Parcel-Amount
-
Choose from the list of available GL codes, or contact the State
Administrative Agent if there are questions
-
Each Division R/W Office has a cost center. The cost center inserted is
for the division r/w office where the project is located, whether acquired by
that division r/w office or another
249
-
WBS: the wbs authorized for r/w acquisition
-
FUNC: 2310 unless there is an adjustment over $4,500.00 and
total settlement over $10,000.00, then use 2300
-
Parcel: Example R-2633B 001
-
Amount: total amount due to payee
PAYEE #2 (Set up for Register of Deeds)
PAYEE/ADDRESS. Enter the name and address of the register of deeds. The
address must correspond with the list provided and updated by the
Administrative Unit.
$: Enter the total payment to the Register of Deeds - this includes revenue
stamps
TIN#: Enter N/A
DOC# is left blank
Vendor #: Enter the number assigned by the fiscal section
Acct Assignment Payee (Register of Deeds):
GL Code – Cost Center-WBS-Function Code-TIP/Parcel-Amount
-
GL Code for Register of Deeds is 54110009
-
The cost center inserted is for the division r/w office where the project is
located, whether acquired by that division r/w office or another
-
WBS: the wbs authorized for r/w acquisition
-
FUNC: 2310
-
Parcel: (Example R-2633B 001)
-
Amount: total amount due to Register of Deeds including revenue stamps
54110009-# for the division-WBS Element-2310-TIP/Parcel-deposit amount
250
MAIL CHECK TO: (Enter the location where the check should print, or if it
is to be printed and mailed to a consultant, enter the mailing address)
DISPOSITION OF IMPROVEMENTS IN RIGHT OF WAY
Check the appropriate box
REMARKS - In this space, an explanation should be given of any pertinent
changes in property lines, areas, location of building, ownership or any other
feature that may differ from the plans, so that the person who checks the Final
Report assembly against the plans will have correct information. Any other
pertinent information regarding negotiation of the claim or processing of claim
should be noted here.
DOCUMENTARY INFORMATION ATTACHED - mark the appropriate boxes of
the information which will be attached to and accompany the Final Report.
RECOMMENDED - the Right of Way Agent who settled the claim and who is
submitting the Final Report assemblage will sign here.
APPROVED - the State Administrative Agent, Assistant Manager or Manager of
Right of Way will sign here.
APPROVED - Assistant Manager, Manager of Right of Way, or Director of Field
Support will sign here; the State Highway Administrator must sign here for all
claims having a total consideration/payment to property owner(s) exceeding
$500,000.00.
If the settlement amount is to be split up among two or more payees, the
additional payees are listed in FRM12-AA
12.05 PROCESSING OF THE FINAL REPORTS
Once the Agent is satisfied with the completeness and correctness of the final
report, he she will sign the FRM12-A, and FRM12-B and notify the Division R/W
Agent. The Division R/W Agent will review the entire final report and supporting
documents and if he/she is approves, he/she will sign the FRM12-A and FRM12B, and check the e-checklist box, which once checked, will produce the current
date. The Division R/W Agent will then notify Checking Section and other
required persons, that the final report is available for processing. The Division
R/W Office should make sure that all reports (currently the Report B, and
Monday Morning Report) are updated to reflect the settlement, and transmission
of the final report to the Checking section.
Upon notification that a Final Report is available, the Administrative Unit will
251
check the final report against both the open and closed claim files as a
precaution to avoid duplication of payment. The primary focus will be to examine
the execution of the instruments, correlation of the areas and amounts in the
approved appraisal to the offer; and the FRM12-A. If any errors are present, the
Administrative Unit will notify the Agent and Division R/W Agent to make the
necessary corrections so that processing may be completed.
The claim will be referred to the Manager of Right of Way or Assistant Manager
for review and approval of the settlement.
After approval, the payment warrant will be either (1) printed in the respective
Division R/W Office or (2) printed in the Raleigh Office and mailed to the
appropriate R/W Agent.
12.06 DELIVERY OF WARRANTS
Once the warrant has printed and all necessary approvals have been obtained
for the closing of the claim, the Division R/W Agent will sign the original
instrument on the line that reads ACCEPTED FOR THE DEPARTMENT OF
TRANSPORTATION BY: ____________________________.
Generally, all claims with a consideration under $25,000 will be closed by the
Agent. However, if there are complex or unusual factors involved in the claim,
and a preliminary title report was obtained, the Division R/W Agent may have the
claim closed by the attorney who provided the title report, even if the
consideration is less than $25,000.
For claims to be closed by the R/W Agent, the Agent should
1. Make sure the instrument has been signed in the “Accepted By” section
2. Re-check the public records to make sure there have been no changes
that affect the title to the property
3. If there are no changes, take the check payable to the Register of Deeds
and present it along with the instruments to the Register for recording.
Some counties require or request that instruments be presented to the
county tax office prior to recording. The Agent should comply with this
requirement/request whenever possible.
4. If there have been changes, such as a new deed of trust, judgments, or an
outright conveyance of a portion or all of the property, the Agent will not
record the instrument, but consult the Division R/W Agent for further
instructions.
252
5. Once the instruments are recorded, the Agent may deliver the warrants to
the payees. It is a good practice to have the original recorded instruments
in hand prior to the delivery of the warrant. The warrant may be mailed
regular mail by using FRM12-E or FRM12-EE, whichever is applicable,
OR, delivered in person to the payee using FRM12-D. FRM 12-D is to be
completed by the Agent and signed by the payee.
6. If the check is delivered in person using FRM12-D, the agent should mail
the owner FRM11-a, if applicable.
7. Mail or deliver a stamped Property Owner survey to the owner.
For claims to be closed by the Closing Attorney, the Division Right of Way Agent
and the Agent who negotiated the claim should review the file to insure that any
special instructions or circumstances involving the closing be included in the
transmittal letter. It is advisable that a sheet of notes indicating such things as
contact information for the payee, special instructions regarding deed of trust and
judgment payoffs, payment or collection of property taxes, accompany the
FRM12-F. The Agent should:
1. Make sure the instrument has been signed in the “Accepted By” section
2. Send FRM12-F, FRM12-G, FRM12-D, FRM6-D, a copy of the FRM4-M
previously signed by the payee, the instruments of conveyance, any
special notes, and the warrants (both to the payee and Register of Deed),
to the attorney who furnished the Preliminary Certificate of Title for the
closing of the claim. A copy of the transmittal letter to the closing attorney
will be sent to the claimant giving notification that the attorney has the
warrant and other closing documents and that the claim is ready for
closure.
If a property owner is represented by counsel, the closing transaction should
be made with the attorney for the property owner and that attorney would
receive a copy of the transmittal letter as notification of the impending closing.
The transmittal letter requests that the claim be closed within ten days, and
the Division secretary should log the date the closing instruments are due
back in the Division Right of Way office. If the claim is not closed within ten
days, the Division secretary will notify the Agent who handled the claim so
that he can contact the closing attorney to see why the claim has not been
closed and offer assistance to expedite its closure. The Right of Way Warrant
Delivery Certification form must be signed by the party delivering the check
and by the payee who will be provided with a copy of the form. Any
deductions or charges from the proceeds of the check must be itemized on
the form. Upon receipt of the closing papers back from the attorney, a Real
Estate Tax Letter (FRM11-A) will be sent to the property owner if applicable.
253
The Agent will also mail or deliver a stamped Property Owner survey to the
owner.
For the following types of payment, the Raleigh office will mail warrants
directly to the payee:
1.
2.
3.
4.
5.
Payment to appraisers for services rendered
Payment to house moving contractors for the relocation of buildings
Payment for property tax reimbursement.
Payment for asbestos inspections, abatement and demolition
Payment for grave inspections and relocations
12.07 ATTORNEY CLOSINGS
Typically, the Closing attorney will do the following;
1. Re-check the public records to make sure there have been no changes
that affect the title to the property
2. If there are no changes, take the check payable to the Register of Deeds
and present it along with the instruments to the Register for recording.
3. If there have been changes, such as a new deed of trust, judgments, or an
outright conveyance of a portion or all of the property, the Attorney will not
record the instrument, but consult the Division R/W Agent for further
instructions.
4. Arrange for a meeting with the payee to deliver the funds. Note: the
payee may need to endorse the warrants over to the closing attorney, so
that the attorney may pay off deeds of trust, judgments, or taxes
5. Complete FRM12-D, FRM6-E (invoice), FRM12-D and submit to Division
R/W Agent along with recorded instruments.
Unless prior approval has been given, all liens and encumbrances
must be satisfied prior to closing the claim. In some cases, closing
attorneys may submit closing papers to a Division R/W Agent with the
notation that the deed of trust is paid in full but not yet cancelled.
Neither the Agent nor Division R/W Agent should submit the attorney’s
invoice until the paid deed of trust is cancelled of record. This subject
is covered in more detail in Chapter 11 of this Manual, "Clearance of
Subordinate Interests".
12.08 RECORDING OF INSTRUMENTS OF CONVEYANCE
254
G.S. 47-27 requires that all deeds and/or easement or any other
agreement granting or conveying an interest in land to the Department
of Transportation be recorded in the office of the Register of Deeds of
the county where the land affected is situated. In those rare instances
where a property may lie partly within two counties, the instrument of
conveyance is to be recorded in both counties. Instruments are to be
recorded without delay and before delivery of the warrant.
In certain situations, when time is of the essence, it may be possible
to obtain a check for recording purposes from the Division Engineer.
12.09 SUBMITTAL AND DISPOSITION OF CLOSING
DOCUMENTS
After a claim has been closed through the Division Right of Way office or by a
closing attorney, the following documents and information are to be prepared,
placed in the parcel closing folder on the s (groups) drive and transmitted to
the Administrative Unit. The appraisal Unit should also be notified that the
claim is closed, so that they may close their files. In addition, FRM6-E should
be mailed or faxed to the Attorney General’s Office, Transportation Section
for payment.
1. FRM12-H - Closing Checklist
a. all questions answered
b. signed by R/W Agent and Division R/W Agent
c. any special notes stated in the remarks section
2. The recorded instrument(s) of conveyance
3. FRM12- D - Signed Warrant Delivery Certification, if attorney closing
a. signed by attorney and payee
b. shows distribution of payment
4. FRM12-I - Final Opinion of Title, if attorney closing
a. Should show that any deeds of trust are paid AND cancelled
5. FRM6-E – Attorney Invoice, if attorney closing
a. Checked for accuracy
b. Properly coded
6. FRM12-E, FRM12-EE, or FRM11-A
a. signed by R/W Agent
255
Please note that there will be no closing for condemned parcels.
12.10 PROPERTY OWNER SURVEY
Promptly after the claim is closed or the condemnation action is filed, the Agent
will mail or deliver a FRM12-K, to the owner. This form is a survey that the
owner is requested to complete a return. Completed and returned forms will be
reviewed by management and any follow up will be conducted.
256
Chapter 13 CONDEMNATION
13.01 CONDITIONS PRECEDENT TO CONDEMNATION
It is Department policy to make every reasonable effort to acquire rights of way
through negotiation. When all reasonable efforts to acquire rights of way have
failed, the Department will, then, resort to the exercise of its power of eminent
domain, or condemnation, to acquire the remaining rights of way. Generally,
condemnation should not be instituted on a claim until the property owner has
been made an offer of just compensation based on an approved appraisal and
has been allowed a period of at least 30 days in which to consider the offer.
When some extreme circumstances dictate, such as an emergency or a
protective acquisition, condemnation may be instituted immediately after an offer
of estimated compensation has been made to the owner. In all situations, the
Board of Transportation must have authorized the acquisition of the property
before condemnation can be filed.
13.02 DETERMINATION TO CONDEMN
Prior to condemnation, the Area Negotiator will review each outstanding claim
with the Agent who handled the claim and submit a completed Condemnation
Review Form (FRM10-F) to the Assistant State Negotiator, as explained
previously in Chapter 10. Based upon the inability to reach a settlement during
the time frame for a negotiated settlement and the action recommended in the
Condemnation Review Form, acquisition through the institution of condemnation
is the last resort in completing right of way acquisition on a project.
13.02 COMPLETION OF THE A.G. INFORMATION FORM
When the prospect of a condemnation action seems apparent, the Agent shall
complete an A.G. Information Form (FRM13-A). This form is primarily a checklist
to insure that the Attorney General’s Office will have all pertinent information at
hand for preparation of the condemnation documents. This report should be
completed and dated so that the attorney will know how current the information
is. Note that post office boxes are not acceptable addresses to be reported on
the AG Information Form. Street and road addresses must be used to insure
257
proper service, which involves hand delivery by the sheriff’s department, of the
condemnation papers on the property owners.
13.03 REQUESTS FOR CONDEMNATION
When it becomes apparent that a settlement with the property owner is not going
to be worked out, the Agent should prepare a final report in a similar manner as a
Final Report on a negotiated settlement as set out in Chapter 12. The request
should be made on the Condemnation Final Report form (FRM13-B) as shown
as follows:
Claim of
(name)
. The name used should be the same entered into
BSIP, shown on the plans, and on the Report B. If the name changes, the
original name of the claimants will be shown in parenthesis after the current
name.
Enter the Date of the final report.
Insert the WBS Element, which is the number shown on the right of way
authorization. In some instances for fiscal reasons, the wbs element may
change or it may be necessary to make charges to another wbs element or code.
In these cases, the previous project number should be shown in parenthesis
following the correct current project number.
Insert the TIP/Parcel Number of the subject parcel.
Insert the TIP ID Number for the project.
Insert the County in which the property is situated. If the property happens to be
located in two counties, the names of both counties should be shown.
Insert all Plan Sheet Number(s) that show where the subject parcel
PAYMENT FOR: After As a deposit of estimated compensation for condemnation in civil action of Department of Transportation vs., enter (first named owner
in FRM6-c)". Regardless of the number of persons shown in the title opinion as
having an interest, and add the wording "et al." after it.
PAYEE/ADDRESS: Clerk of Superior Court, name of county___ County should
be inserted as well as the address of the Clerk’s Office.
$: Enter the total consideration to be deposited in this condemnation action.
The amount shown should, in all instances, be the amount of the approved
appraisal, unless there is a deduction for clean up of contaminated soils. The
total amount of the deposit N/A
258
TIN# is N/A
DOC# is left blank
Vendor # is the number assigned to the Clerk of Court for that County
Acct Assignment:
GL Code – Cost Center-WBS-Function Code-TIP/Parcel-Amount
54110009-# for the division-WBS Element-2310-TIP/Parcel-deposit amount
MAIL CHECK TO:
Bonnie Tripp-Simmons
State Administrative Agent – Right of Way
NC Department of Transportation
Raleigh, NC
DISPOSITION OF IMPROVEMENTS IN RIGHT OF WAY
To become the property of the North Carolina Department of Transportation
REMARKS
Any unusual aspect that that needs explanation; any requests for expedited
processing
DOCUMENTARY INFORMATION ATTACHED
Check the appropriate boxes of the information which will be attached to and
accompany the Condemnation Final Report.
RECOMMENDED - the Right of Way Agent who is submitting the Final Report
places his/her electronic signature here
APPROVED
This block is signed electronically here by the appropriate personnel in Raleigh
APPROVED
This block is signed electronically here by the appropriate personnel in Raleigh
13.04 REQUEST FOR CONDEMNATION ASSEMBLY
All condemnation final reports folders are located on the s (groups drive) in the
division/TIP/county/parcel and should contain the following documents:
1. A Condemnation Final Report Checklist (FRM13-D) signed electronically
by the Agent who negotiated the claim and the Division R/W Agent
2. FRM13-B discussed above
259
3. FRM4-C, FRM4-D and any other diary sheets. Since no settlement was
negotiated, the affidavit "TO BE COMPLETED BY SUCCESSFUL
NEGOTIATOR" on the Form ND1 (FRM4-C) does not need to be signed.
4. Gencor: All original correspondence accumulated with regard to the
claim.
5. FRM10-B Summary Statement/Offer to Purchase
6. FRM6-C signed by the R/W Agent
7. FRM13-A AG Information Form
8. FRM4-A Existing Right of Way Abstract
9. FRM10-F (complete and signed)
10. E-Checklist with box checked by the Division Agent when the final report
email is sent
13.05 PROCESSING OF REQUEST FOR CONDEMNATION
When the above items are complete, checked by the Division R/W Agent and
ready for processing, the Division R/W Agent shall send an email to the
appropriate Administrative Unit personnel with the subject ROWEFS and
indicating that the final report is available for processing. Upon receipt of the
email, the Administrative Unit will begin processing. The final report will be
checked against both the open and closed claim files as a precaution against the
possibility of duplication in payment. The assembly will then be further checked
by the Administrative Unit for correctness and against the project plans.
The claim will be referred to the Manager of Right of Way or Assistant Manager
for review and approval for proceeding with condemnation on a particular claim.
After approval, a warrant for the amount of deposit to be placed in court will be
obtained from the Fiscal Section. The warrant will then be sent to the Attorney
General’s Office, Transportation Section, for their preparation and filing of a
Declaration of Taking on that claim by a specified date. The projected date of
condemnation will be set by the Attorney General’s Office the State Negotiators
Office will be notified. The State Negotiator’s Office in turn will email FRM13-M
to the Division R/W Agent and place the form in the final report folder. FRM13-M
states the date of projected condemnation. The Division R/W Agent should then
send a letter to the claimants (FRM13-F) advising of the Department’s intent to
proceed with condemnation and the date on which the condemnation action will
be filed. The letter will also specify the amount, generally the approved appraisal
offer, which will be deposited with the Clerk of Court on that particular date as an
estimate of just compensation for that claim. If a lease involved, a copy of the
letter of transmittal to the property owner/lessor should be sent to lessee. The
letter also requests that the owner to contact the Division R/W Agent within a
specified time, typically 10 days, should the owner be willing to discuss the
matter further.
The Attorney General’s Office prepares the Declaration of Taking and requests
260
from the Manager of Right of Way, a cadd generated plat depicting the areas to
be acquired.
Condemnation actions usually are mailed out on a Wednesday or Thursday so
that the Clerk of Court receives the package and filed it on the following Monday.
13.06 NEGOTIATION OF CLAIM AFTER REQUEST TO CONDEMN
Even though it may appear that negotiations have broken down after submitting a
request for condemnation, the Agent may continue to negotiate with the property
owner until condemnation has been actually filed in an effort to reach a
settlement. Frequently after receiving notification of intent to condemn and
realizing that the taking by condemnation is inevitable, the property owner desire
to reach a settlement. Sometimes an owner, after giving the matter more
thought, may reconsider even before receiving the letter of intent to condemn. In
the event a settlement is reached between the time the request for condemnation
is sent to the Administrative Unit and the date of filing, the Division R/W Agent
should immediately email the appropriate persons in the Raleigh R/W Office who
will complete a condemnation termination notice and advise the appropriate
sections to cease their efforts toward processing this claim for condemnation.
The Division R/W Agent will be emailed the termination notice.
Please note the following: In order to cease processing of a condemnation final
report,
1. the claim must be settled (signed agreements in hand) prior to the
condemnation package being mailed out by the Attorney general’s office
2. the Agent should also obtain a signed entry agreement since many times
the condemnations action is being submitted to meet the schedule
3. The Raleigh R/W Office must be informed in writing (by email)
4. The Raleigh R/W Office must terminate the final report processing
The file will then be recovered from the Attorney General’s Office and placed in
the open claim file pending receipt of a Final Report for settlement from the
Negotiating Agent. The warrant payable to the Clerk of Court, if issued, will be
returned to the Fiscal Section for cancellation. A warrant payable to the owner
will be secured after the Final Report for settlement has been received and
processed.
261
13.07 FILING OF CONDEMNATION ACTION
If the claim is not settled, the summons, complaint, declaration of taking, and
notice of deposit, along with warrant for the amount of the deposit, will be sent to
the Clerk of the Superior Court of the county in which the property is situated.
The documents are typically mailed out on a Thursday so that they are received
and filed on a Monday, the customary day for filing condemnations. In some
situations, the documents may be hand delivered to the Clerk of Court’s Office
for immediate filing.
On the designated day for the filing of the condemnation action as requested by
the Department, the Clerk will issue the Summons and file the Complaint and
Declaration of Taking and Notice of Deposit. A copy of the Memorandum of
Action called for in G.S. 136-104 will also be sent at that time to the Register of
Deeds in the same county to be recorded among the land records of the county.
Each week, the Attorney General’s office will send a list of parcels on which
condemnation has been instituted to the State Negotiators Office, who will
forward the list to the Division R/W Agents.
13.08 VIDEOS OF PROPERTY
On the date of the condemnation, or as soon thereafter as is practical, the Agent
should make a detailed video of the property. This video should include
improved properties, as well as open land; the outside of any buildings,
topographical features; existing rights of way, access, driveways,
trees/landscaping and other features of the property which would have a bearing
on the value of the property in a trial. The completed videos should be held in
the Division R/W Office and made available to the respective Attorney General’s
Office, Raleigh or Asheville, to aid the attorney who will be assigned a particular
claim in becoming familiar with the property while preparing for trial. The Agent
should limit audio commentary to the facts and not opinions.
13.09 NOTICE TO OCCUPANTS TO VACATE
Promptly upon the filing of a Declaration of Taking and Complaint, the
appropriate vacate notice shall be given to all parties owning personal property
located within the taking. This notification will be given to property owners and
tenants who are lawfully occupying real property as a home, farm, or business, to
all owners of personalty which may be located in barns, outbuildings or other
262
structures, and to the owners of advertising signs which are considered
personalty. Copies of vacate notices to tenants should be sent to the respective
property owners. Any exception to the requirement of a vacate notice shall be
made by the Relocation Coordinator only in very unusual circumstances. Vacate
notices are discussed in detail in Chapter 15 of this Manual.
13.10 NEGOTIATION AFTER CONDEMNATION ACTION FILED
Once the condemnation action has been filed, the Attorney General’s Office
should be involved in any efforts to settle the claim. Any contacts from the
property owner or owner’s attorney should be directed to the Trial Attorney in the
Attorney General’s Office who is assigned the case. The Trial Attorney may
prefer that the Right of Way Office assist in settlement talks, or they may prefer
to handle the matter themselves. In any event, once condemnation has
occurred, the Trial Attorney should take the lead in settling the claim. The
Division R/W Office should not discuss the claims with the owner or owner’s
attorney without the knowledge and approval of the Trial Attorney.
In those instances where there are buildings and other improvements which have
also been condemned, the property owner or the owner’s legal representative
should be advised, if not already, that these improvements may be retained for
their retention value. The requirements for retention are discussed in Chapter 14
of this manual. The Agent should first discuss this matter with the Trial Attorney
before contacting or sending a letter to the owner. In no instance should a
condemned building be offered for public sale while it is still occupied by the
former owner.
It is permissible for the Agent to write any condemned owner letter if construction
of the project will disrupt any private utility sources, fencing, driveways which will
not be reconnected or restored, etc. The agent should point out the item or items
to be disrupted by construction and advise the condemned that it will be his
responsibility to restore or take care of same. The agent should write this letter
so that the condemned owner will receive it in ample time to take care of the
situation prior to the time construction of the project begins.
It is most important that the Right of Way Agent provide any needed assistance
to the Attorney General’s office on any claim which has been condemned. The
Agent should promptly contact the Trial Attorney with any new information
regarding the claim after condemnation is filed. Negotiating diaries will be
available to the trial Attorney through the s (groups) drive.
263
13.11 RESPONSIBILITY OF AGENT UPON FILING OF
ANSWER TO COMPLAINT BY PROPERTY OWNER
G.S. 136-107 provides that any person named in and served with a complaint
and declaration of taking shall have twelve months from the date of service
thereof to file answer. A judge, for good cause, at any time prior to entry of a final
judgment when an answer has failed to be filed within the twelve-month period,
may extend the time for filing an answer for 30 days. Upon filing of an answer by
the property owner, the Deputy Attorney General will send by memo, a copy of
the answer to the Division Right of Way Agent, the State Locating Engineer, and
to the State Appraiser with the request that he secure additional witnesses for
use in trial if this has not already been done. An additional copy will be sent to
the Manager of Right of Way with a request that the Deputy Attorney General be
furnished with any file pertaining to the parcel, including appraisals that have not
been previously forwarded to the Attorney General. The Division R/W Agent
should begin preparing an abstract for the Location & Surveys Unit.
13.12 MAPS IN CONDEMNATION SUITS
G.S. 136-106 provides in part that within ninety days from the receipt of the
answer by the property owner to the condemnation suit, the Department of
Transportation shall file in the cause a plat of the land taken and such additional
area as may be necessary to properly determine the damages. A copy of the plat
shall be mailed to the parties or their attorney, provided however that the
Department shall not be required to file a map or plat in less than six months
from the date of the filing of the complaint.
Generally, at the time the owners file answer, the Deputy Attorney General will
request that the State Locating Engineer have the Property Survey Division
furnish an accurate map of the entire property. This map will show the area
acquired together with any construction, drainage, and utility easements,
temporary easements, control of access, or other interests in land acquired, and
the location of improvements to the property. The map should also show the
location and right of way of any public roads that were in existence prior to the
taking. The bearings and distances of all property lines, right of way lines, or
other easement lines should be shown on the map, together with appropriate
areas. It will be the responsibility of the Agent to cooperate with the survey party
in furnishing them any information that would be of assistance to them in making
the survey. After the map has been prepared, a copy will be sent to the Division
Right of Way Agent, who will review the map with the Resident Engineer in
charge of construction of the project to make sure that all slope easements,
drainage easements, right of way lines, etc., are properly shown on the map and
that the construction of the project is contained within the various easement lines
264
indicated on the map. The accuracy of the map for court purposes is essential to
insure the correctness of the areas being acquired and to prevent adverse issues
and testimony in a trial if inaccuracies are found and not corrected. Should it be
necessary to prepare and file a map prior to completion of construction on a
particular property or parcel, the Resident Engineer should be cautioned to
inspect the map very carefully and to make sure that the contractor confines
construction operations within the limits of the right of way and easements shown
on the map. Upon receipt of the completed map from the Property Survey
Division, sufficient copies of the map will be sent by the Department’s Trial
Attorney, who has been assigned the claim, to the Area Appraiser. The Area
Appraiser will have each appraiser check and update his/her appraisal to
conform with the areas contained in the map and to consider whether the taking
as shown on the map has any further effect upon the values contained in the
appraisal of the property. In cases where revisions in the appraisal are made, the
revised appraisal will be sent to the Area Appraiser by the appraisers of the
property, and he will indicate whether or not a revised appraisal is approved and
forward a copy of same to the trial attorneys.
13.13 COMMISSIONER’S HEARINGS
Should the property owner or the Department request that commissioners be
appointed by the court to appraise and report their determination of damages
sustained, the Agent should make himself available, upon request of the Trial
Attorney, to attend the commissioners’ hearing for the purpose of furnishing
information and providing assistance to the Trial Attorney.
13.14 MEDIATION
Mediation is an alternative dispute resolution procedure which the North Carolina
General Assembly has enacted to assist the Judiciary in resolving and disposing
of cases in litigation. All condemnation cases will be subject to mediation prior to
the case being calendared for trial. Since trials are becoming increasingly more
expensive, more burdensome and less satisfactory to parties involved in that
process, mediation provides a framework to resolve the dispute or conflict more
satisfactorily from a financial and emotional standpoint.
Mediation is a voluntary process, in that the participants must be willing to
accept the assistance of the mediator if the dispute is to be resolved. The
decision-making power is left in the hands of the parties with the conflict. The
dispute is ended when the parties in conflict choose to resolve their differences.
265
Typically, the Area Negotiator will represent the Right of Way Branch in
mediation. Once the mediation of a claim in condemnation has been calendared,
the staff attorney with the Attorney General’s Office to whom the claim has been
assigned will contact the appropriate persons with the Right of Way Branch to
discuss settlement terms. One of the requirements of the mediation process is
that a governmental agency must be represented by someone with full authority
to negotiate for the agency and to recommend a settlement to the appropriate
decision making body. Hopefully, persons with the appropriate level of authority
can be designated to attend the mediation, whether it may be the Branch
Manager, the Assistant Branch Manager, the State Negotiator, Assistant State
Negotiator, an Area Negotiator, or a Division Right of Way Agent. In those cases
when the appropriate level of authority cannot be available, the person
designated to attend the mediation will have been granted the appropriate
authority to recommend a settlement for that case. If the proposed settlement
lies within the prescribed authority limits for Right of Way Branch personnel,
settlement of the case may be approved at the conclusion of the mediation
session. In other cases, the recommended settlement may require the approval
of the Right of Way Review Board and in claims involving settlement over onemillion dollars ($1,000,000), the recommended settlement requires approval by
Right of Way Review Board and approval by the Secretary of Transportation.
See Chapter 4 for additional information on the Review Board and settlement
approvals.
13.14 PRE-TRIAL ASSISTANCE TO ATTORNEY
Upon being notified by the Trial Attorney in the Deputy Attorney General’s office
that a case has been calendared for trial, the Right of Way Agent shall be
available to provide any assistance to the attorney in preparing the case for trial.
In working the project, the Agent will have become familiar with the project, the
property owners, and the community, and may have background information that
will be of great assistance in the trial of the case. The Agent should be prepared
to go over the list of jurors for the term of court to determine if any of the jurors
have had previous claims against the Department of Transportation or if they
have expressed opinions that would indicate prejudice against the Department.
The Agent, by reason of his knowledge of the community, may also know of
business or personal relationships between the defendant and such witnesses as
the defendants might likely call upon to testify in their behalf.
266
13.15 PROCEDURE FOR SETTLEMENT OF CLAIMS AFTER
INSTITUTION OF SUIT AND DEPOSIT OF ESTIMATED
COMPENSATION
The following procedures will be followed for the settlement of claims after the
institution of condemned claims both where (A) the property owner agrees to
take the amount deposited in full compensation or (B) where it is agreed that an
additional sum will be paid to the property owner.
A. Settlement by withdrawal of deposit as full compensation: Upon notification
from the property owner that he desires to withdraw the deposit in full
settlement, the Agent will fill out FRM13-H, "Application for Disbursement of
Deposit as Full Compensation”, by inserting the county in the caption and by
copying the title of the suit from the Complaint and Declaration of Taking. The
Agent will also fill in the amount of the deposit in the spaces provided in the
second and fourth paragraphs. This should be checked against the copy of the
Declaration of Taking to be sure that the amounts are the same. In the blank
following the third paragraph, the word "none" usually will appear. The Agent
should check the liens and encumbrances set forth in the complaint and ask the
property owner if there are any other liens or encumbrances on the property. If
the property owner states that there are, these should be listed in the blank
space. If there are no others, the word "none" should be in the blank. In the
blank space following paragraph 4, the Agent will usually insert, "To the
defendants jointly". However, if the various defendants insist upon a division of
the money in the judgment, the agent will fill in"___________ dollars to (name)
defendant and _____________ dollars to (name) defendant, etc.", with the
total equaling the deposit. The Right of Way Agent will also fill in the date and
secure the signatures of all defendants listed in the Complaint. He/she will also
fill in the project and parcel number in the lower left-hand corner of the form.
He/she should prepare an original and one copy (or more, if the defendants
wish to keep a copy). The signatures of the defendants should be notarized.
When the application for disbursement, FRM13-H, has been filled out and
executed, the Agent will forward the original the Trial Attorney, together with a
description of the right of way acquired and with an explanatory memo letter.
This description should be shown on FRM13-J or on an unexecuted deed of
easement or agreement previously prepared for negotiations with the right of
way and other easements properly described thereon. All right of way,
construction, drainage, and utility easement descriptions being drawn for
judgments should be described in narrative metes and bounds form. The
metes and bounds may be taken from the cadd description provided to the
Agent.
Upon receipt of the application for disbursement and the description of the right
of way, the Trial Attorney will begin preparation of a judgment. The Attorney
267
General’s office will then prepare an Order of Disbursement and Final
Judgment on A.G. Form 6-7 and 6-10. The Trial Attorney may forward the
documents to the Division Right of Way office with the request that the Agent
secure the signatures of the defendants and the resident judge on the judgment
and then file the judgment with the Clerk of Superior Court, with instructions to
the Clerk that he/she send a first copy to the Register of Deeds for recording.
The Attorney General’s letter transmitting the judgment to the Division Right of
Way Office will contain instructions on the procedure to follow in securing the
entry of these judgments.
B. Settlement of cases for an amount in excess of that deposited: In those
cases where the claim is settled for an amount in excess of that deposited,
FRM13-i, "Agreement to Settle Right of Way Claim" shall be used. In the
heading of the form, the county, project and parcel number is inserted. In the
first paragraph, the name of all the defendants, the parcel number, and the
county in which the action is pending is inserted. In paragraph 2, the project
number will be inserted in the space provided. In paragraph 3, the county in
which the action is pending and the amount deposited is inserted. In paragraph
4, the amount deposited is inserted in the first blank; in the second blank, the
additional amount agreed upon over the deposit; and in the third blank, the total
of these two sums; and in the fourth blank, the project number again. In the
fifth paragraph, the amount in excess of the deposit and the county in which the
action is pending is inserted. The agreement should be dated and signed by all
defendants. The signatures of the defendants should be notarized. When the
agreement has been executed, a Final Report similar to that called for in
Section 13.04 will be prepared. FRM13-L and FRM13-M will be used. In the
FRM13-M, the amount shown should be the amount of the additional deposit.
In the space provided for justification and remarks, it should be stated whether
or not the property owner has drawn down the amount of the original deposit
and reference the justification for the increase in settlement. The Final Report
folder should contain all of the necessary documents, and the Administrative
Unit should be notified to begin processing once the final report is correct and
signed by the proper parties. The warrant will be sent to the Trial Attorney for
preparation of a Consent Judgment. From this point, the claim will be closed in
the same manner as set out in paragraph A above. A warrant in the amount of
the additional deposit will have to be deposited with the Clerk of Court.
13.16 ASSISTANCE AT TRIAL
The Right of Way Agent should be available to attend the trial of a case upon the
request of the Trial Attorney. The Agent should be prepared to testify as to
features of the project along the property, proposed construction features,
existing rights of way or any phase of negotiations as may be relevant and asked
for by the Trial Attorney. In addition, the Agent should be available to assist
268
when unexpected contingencies arise during the course of a trial which require
obtaining additional pertinent information that could be crucial to the outcome of
the trial in the Department’s favor. The Agent may also be requested to give a
deposition prior to trial.
13.17 PRE-TRIAL SETTLEMENTS AND JUSTIFICATION
In many instances after the filing of a condemnation, additional value evidence in
the form of new appraisals, appraisals tendered by the property owner, changes
in appraisal concept brought about by legal review, determination of damages by
court-appointed commissioners, etc., or other factors brought about by the
examination of witnesses, interest accrued, known recent court experience in the
area, etc., may dictate the wisdom of reaching an administrative settlement for an
amount over the deposit rather than carrying the case to a trial by jury.
Procedures are set out in 23 CFR 712.401-406 and 49 CFR 24.103(i).
The determination of settlements in excess of the deposit after condemnation
has been filed is made by the State Negotiator, Assistant State Negotiator, the
Manager of Right of Way or the Assistant Manager, or the Right of Way Review
Board, depending upon the proposed amount of settlement and the threshold of
authority of these individuals. The Right of Way Review Board is composed of
the State Highway Administrator and/or delegate(s), the head of the Attorney
General’s Office-Transportation Section or delegate, the Manager and Assistant
Manager of Right of Way, the State Negotiator, the State Appraiser, the Director
of Field Support, the Director of Pre-Construction and the FHWA Division Realty
Officer (ex-officio member). The Review Board, will collectively review the more
complex and unusual cases, and assess the risks of settling the claim without
going to trial versus trying the case before a jury to determine just compensation
to which the property owner is entitled to receive. See Section 3.13 for more
information.
If a decision is reached by the Review Board for settlement above the deposit,
the minutes of the Board shall constitute the documentation for the settlement. If
the recommendation for settlement above the deposit originates in the Attorney
General’s Office, without action of the Review Board, documentation of and
justification for the settlement will be prepared by the Attorney General’s Office
and will be approved by the Manager of Right of Way or Assistant Manager. If
the recommendation for the increase originates in the Right of Way Branch,
without action of the Review Board, the documentation and justification will be
prepared by the Manager of Right of Way or the Assistant Manager.
269
13.18 REVISED APPROVED APPRAISAL AFTER
CONDEMNATION
In a few instances after condemnation proceedings have been filed, the Review
Appraiser will approve a new appraisal thereby voiding and superseding the prior
approved appraisal. If requested by the Trial Attorney, the Right of Way Agent
will promptly proceed to make the revised approved offer, by offer letter, to the
owners. If the owners accept the new offer, a request for an additional deposit,
along with properly executed FRM13-L and appropriate final report will be
processed so a consent judgment finalizing the claim can be obtained. If the
settlement based on the new offer is not possible, the Trial Attorney will file an
amendment in the case and make an additional deposit to the condemnation suit.
If the attorney from the Attorney General’s Office who is handing the particular
claim in condemnation believes that a voided and superseded appraisal will
adversely affect settlement negotiations occurring after the filing date, the
attorney may choose not to amend the suit to include an additional deposit.
However, the attorney must insure that any settlement made with the owner shall
be an amount at least the same as the new approved appraisal which voided and
superseded the previous appraisal approved for negotiations.
13.19 LITIGATION EXPENSES
In a condemnation suit, the Department will pay only those expenses associated
with the trial of a claim, such as court costs and those witness fees as ordered by
the judge. The property owner will not be reimbursed for any reasonable
expenses, including attorney, appraisal, and engineering fees which the owner
may actually incur because of a condemnation proceeding, except in the
following instances:
(a) The final judgment of the court is that the Agency cannot acquire the real
property by condemnation; or
(b) The condemnation proceeding is abandoned by the Agency other than
under an agreed-upon settlement; or
(c) The court having jurisdiction renders a judgment in favor of the owner in
an inverse condemnation proceeding or the Agency effects a settlement of
such proceedings.
270
Chapter 14 PROPERTY MANAGEMENT
14.01
PROPERTY MANAGEMENT – GENERAL
Property management may be defined as the accounting for rentals of improvements
and land and the orderly disposal of surplus property, both improvements and land,
acquired in connection with right of way. The primary objectives of property
management are to insure that rights of way are cleared in sufficient time to avoid
delaying construction of a project and that the state receives a maximum return on its
investment in the property. Property management can be broken into three (3) general
categories. Property Management responsibilities are shared by the Negotiating Unit
and the Administrative Unit.
Advance Acquisitions
Right of way acquisition may consist of spot acquisitions for hardship cases, protective
buying acquisitions or the advance acquisition of right of way for an entire project. In
advance acquisitions, property may be held for some time before it is cleared for
construction. As a result, the rental of property will become a major item in property
management. Also, the matter of protection against vandalism may constitute a
problem. All rental transactions on a local level will be handled by the Division Right of
Way Agent, with all transactions being reported to the Real Property Agent in the
Raleigh Office. The Real Property Agent will be responsible for seeing that adequate
records and inventories are maintained, that property management work is done in
conformance with proper procedures and that the right of way is cleared for construction
in accordance with schedules.
Acquisition for Projects Scheduled for Immediate Construction
On projects in this category, properties will seldom be rented since there is usually
insufficient time between the date of acquisition and possession and the time for
clearance for construction to make it practical to rent the property. Property
management also involves the inventory and clearance of the right of way. All
transactions for the clearance of improvements from the right of way will be handled on
a local level by the Negotiating Agent in charge of the project. These transactions will be
reported to the Real Property Agent so that proper records and inventories can be
maintained and checks be made to see that procedures are being followed.
Residue and Surplus Right of Way
Properties in this category usually involve the use or eventual disposal of Department
owned property after completion of construction of a project. Here again, transactions
on a local level are handled by the Division Right of Way Agent subject to the overall
271
supervision of the Real Property Agent. Proper records and inventories must be
maintained until final disposal.
14.02 OCCUPANCY OF IMPROVEMENTS AFTER ACQUISITION
It will be the responsibility of the Division Right of Way Agent to handle the rental of
owner-occupied properties which will be occupied for a period of time following
acquisition. On the initial contact for tenant-occupied properties the Agent should secure
information pertaining to the rental of the property such as agreed rental rate or
collection of rent. On tenant-occupied properties, the Right of Way Agent will either
make the necessary arrangements with a rental agent or handle the rental of property
himself until it is vacated by the original tenant. In some instances, rental of the
improvement may continue for a period of time after vacating by the original tenant. The
rent set should be fair to a short-term occupant. On advance acquisitions, the occupants
may remain on the premises at the discretion of the Division Right of Way Agent if a
proper rental arrangement has been made with the Department. On projects where a
scheduled delay is encountered or an extended acquisition period is anticipated, the
occupants may remain in the improvement subject to an agreeable rental arrangement.
14.03 FREE OCCUPANCY RENTAL POLICY
Settlement with owners who occupy property and improvements acquired does not
imply they have indefinite time for free occupancy. They should be allowed a
reasonable time in which to vacate. The date listed in the vacate notice for an owner
may be sufficient time for free occupancy before rent should be charged.
When settling with an owner, it should be understood and agreed that if he desires to
occupy the property beyond the vacate date, that fair rent may be charged and will be
collected by the state or a rental agent. If no arrangements are made as a condition of
settlement the Right of Way Agent should establish fair rent to a short-term occupant
and proceed with collection in the prescribed manner. If unusual circumstances arise
and an owner-occupant desires a rent-free period of occupancy beyond the vacate
date, a written waiver must be secured. The Right of Way Agent should contact the
Division Right of Way Agent for this waiver. The termination date for the free rental
period should be stated in the letter in addition to the reason and need for the request.
This same procedure should be followed in condemnation where the owner occupies
the property.
In the case of tenant-occupied property, the property owner should be notified by the
Right of Way Agent that upon closing of the claim by the state that the future rental, in
the same amount (unless the rent is not fair to a short-term occupant), will be collected
by the State in the prescribed manner. The rental or Right of Way Agent should notify
the tenants of the rental arrangements with the State and handle the rent from this
point.
272
All rental agreements will be handled through the Branch’s Real Property Agent in the
Central Office.
14.04 PROTECTION OF IMPROVEMENTS PRIOR TO DISPOSAL
So that all property acquired by the Department in connection with right of way may be
adequately protected between the time of purchase and disposal, the following steps
should be followed:
1.
The Right of Way Agent is to keep a close check on all buildings so as to know
when the occupants vacate the property.
2.
Immediately after a building is vacated, the Division Right of Way Agent should
have the property inspected and advertised for sale. If, on this initial inspection, it
is found that the property owner or occupant has removed any items that are a
part of the realty or has willfully damaged or defaced the property, he should
immediately contact the occupant to recover the property taken and he should
immediately provide the Raleigh Office with a written report giving all particulars.
3.
A check should be made to see that electric service has been discontinued, that
the water has been cut off and that the water and heating systems have been
drained to prevent damage by freezing in winter.
4.
The Agent should see that all doors and windows are locked or otherwise
adequately secured.
5.
The Agent will usually place "No Trespassing" signs on each building, both front
and rear. In certain situations, it will be in the Department’s best interest not to
post these signs on the buildings until time for them to be advertised for sale.
Discretion must be used in deciding the project and the improvements on which
signs should not be placed. Exceptions to the usual posting policy will be
approved by the Division R/W Agent and so noted in each parcel diary.
14.05 PROTECTION OF RIGHT OF WAY PRIOR TO CONSTRUCTION
It is the policy of the Department to take such precautions as necessary to prevent the
unauthorized use of and/or the encroachment on rights of way which may have been
acquired for future highway projects which are not under construction. Acquired rights
of way shall be maintained in a manner which will prevent or correct problems, such as
illegal dumping or disposal of rubble, debris and garbage.
273
14.06 IMPROVEMENTS NOT TO BE MOVED
Occasionally, the Department may acquire buildings that are substandard and of such
age and condition that they should not be sold for removal to nearby vacant property.
There have been instances in the past where such buildings were sold by the
Department and later repurchased, at added cost to the taxpayer, by urban renewal
authorities. In those instances where a moving permit will not be granted by the
municipality, the building should still be offered for sale in the usual manner; however, if
no bids are received, the building should be included in the roadway contract as a
demolition item, included in a separate demolition contract, or disposed of in the most
economical way.
14.06 RODENT CONTROL PROCEDURES ON FEDERAL AID
HIGHWAY PROJECTS
At or about the time the right of way inspection is made on all Federal Aid Highway
Projects, an inspection will be conducted by the Right of Way Agent to determine if
rodent control measures are necessary on the project.
A written report to the Real Property Agent on each project will set forth the results of
the inspection and advise if control measures are needed. The report will include the
date of the inspection, those making the inspection, parcel numbers and addresses,
and/or the area by station numbers on those parcels or areas where control measures
are necessary. (See FRM14-A). If, in the opinion of the Project Property Manager, the
service of the city or county health department is needed in making the inspections, he
should secure their assistance. If control measures are necessary, the following
procedures will be followed:
A.
Local licensed exterminators will be asked to submit bids on a project basis,
using Proposal and Contract for Rodent Control, for rodent control treatment not
later than the time of demolition or removal of the improvements located within
the right of way. (See FRM14-B). The object of rodent control is to exterminate
the rodents within the right of way so that they will not migrate to adjoining
properties. This can best be accomplished by baiting the parcels immediately
after the parcel is vacated by the last occupants prior to demolition. The
Department should be in possession of a property prior to its being treated.
B.
Proper notice will be made to the general public for the receipt of bids to cover
the extermination of rodents by placing an advertisement in two consecutive
issues of a daily or weekly newspaper and opening bids not sooner than ten days
following the first advertisement. The Division Right of Way Agent’s name should
be referred to in the advertisement and the opening of bids should be supervised
by him.
274
C.
A copy of the Department Proposal and Contract for Rodent Control will be
submitted to the appropriate city or county health department requesting that
they advise if there will be any conflict between the requirements of the Proposal
and Contract for Rodent Control and any local laws. Any conflict should be
resolved prior to advertising for bids.
D.
After treatment, the Right of Way Agent should contact the local Health
Department to request an inspection of the parcels treated to insure that proper
execution of the contract has been performed. Should additional parcels needing
treatment need to be added to a previous let contract, this can be accomplished
by the use of a letter. The State Board of Health has advised that anticoagulant
poisons are the safest and recommends that they be used. The generally
accepted mixture is one (1) part poison (warfarin) to nineteen (19) parts of bait
(freshly ground corn meal). This mixture will be used on highway projects and will
be dispensed by the use of bait boxes or their equivalent.
14.07 RENTAL OF PROPERTY
In general, any vacant property and/or buildings acquired by the Department may be
leased or rented. Any buildings acquired by the Department that may be held for a
period of one year or longer between the time of possession by the Department and the
time it is necessary to dispose of them for right of way clearance may be rented if the
buildings are in a sufficient state of repair. The rental or leasing of vacant property is not
contingent upon the period of possession by the Department. The Department may
employ a property management firm or real estate agency for collection of rentals or
management of acquired property.
On a project where several rentals are anticipated, the Division R/W Agent will advertise
for a Property Management Company or Real Estate firm to manage the properties
using FRM14-CCC Request for Proposal: Property Management. The advertisement
must run in a newspaper in the county of the rentals for two (2) consecutive printings.
All bids received are then forwarded to the Real Property Agent for review and approval.
Once a bid has been approved, the Division R/W Agent will have the awarded Property
Manager execute FRM14-C North Carolina Department of Transportation Management
Agreement. The Division Agent may assign additional parcels to a rental agent, setting
forth the parcel number, former owner and street address. A copy of the letter will be
sent to the Branch’s Real Property Agent.
Rental Agreements (see FRM14-D) with individuals may be handled directly with
existing occupants by the Right of Way Agent. Also, in areas with limited real estate
activity, the Agent may handle rentals and leases.
14.08 MAINTENANCE OF BUILDINGS
275
Building repairs or maintenance shall be considered only when such repairs or
maintenance can be justified by the length of the rental period, the amount of
anticipated income, the estimated future sales price and the condition of the building.
The Management Agreement prohibits any rental agency from making repairs without
securing prior approval from the Department, since most improvements are rented on
an as is basis. Exception may be made where rentals are expected to continue for an
extended period. In such cased, any repairs requiring expenditure in excess of one
month's rental should be submitted to Real Property Agent prior to approval by the
Division Agent.
14.09 RECORD OF RENTALS
The Right of Way Agents are to maintain a complete record of all rentals in the Division
Right of Way Office and the Real Property Agent is to do likewise in the Raleigh Office,
(see FRM14-F). These records should be maintained on both a parcel and project basis
so that the amount of rental collected for any given parcel or project can readily be
determined. The standard Management Agreement provides that rental collections are
to be reported by the rental agency to the Department as of the tenth day of the month
unless agreed upon by the Property Manager. Immediately upon receipt from an
individual or a rental agency, payments should be forwarded to the Real Property Agent
in Raleigh, with an original and two copies of FRM14-E, Collections for Sale-Rental of
State-Owned Property. After entry in the record of the Real Property Agent,
the check and collection sheets are forwarded to the Administrative Unit for auditing and
accounting codes and distribution to the Fiscal Section and project file.
When a building is rented or rent collected for the first time after the Department
purchases the property, the Right of Way Agent should submit the rental information
and a picture. This will allow the Raleigh Office to be aware of the condition of the
property and therefore aware of potential maintenance problems for future reference.
14.10 DISPOSITION OF IMPROVEMENTS
All improvements that are acquired in connection with the right of way are to be
disposed of by one of the following methods:
1.
Resold to the property owner for a retention value established by the
Department.
2.
Sold to displaced persons for the retention value to be used in providing
replacement property for their own use or to a governmental agency for use by
displaced persons.
3.
Sold by public sale or by negotiated sale if no bids are received after proper
advertisement.
276
4. Demolished by the roadway contractor or by demolition contract.
5.
Retained by the Department for other public use.
14.11 PURCHASE OF MOBILE HOMES AS REALTY
In some instances, mobile homes have been appraised as realty and subsequently
purchased by the Department of Transportation.
Since mobile homes are generally classed as personalty, it is necessary that they have
a title and be registered with the Department of Transportation, Division of Motor
Vehicles. It may be that in certain instances mobile homes purchased in Georgia,
Tennessee or Virginia will not have been titled and registered in North Carolina. Also,
the use tax required on the purchase of a mobile home must have been paid either at
the point of purchase, if not in North Carolina, or when the unit is purchased in North
Carolina. This tax is usually listed on the bill of sale.
To insure proper transfer of title and the identification of all secured lien holders, it is
absolutely essential that the Appraisal Summary Sheet and the Preliminary Certificate
of Title indicate that the area of taking includes the mobile home which has been
determined to be realty. In determining if a mobile home should be considered
personalty or realty, the Division Agent, and Area Appraiser are to collaborate in
reaching a decision. This should be done at the time you review the project for signs
and to determine which parcels can be done on Claim Reports by the Negotiating
Section.
When a mobile home is advertised and sold by the Department after being purchased
as realty, it is necessary that a title be secured for the purchaser. In order that this can
be accomplished, the Agent should determine at the time negotiations begin on the
purchase of the mobile home if the owner has a title, and, if not, request that same be
secured. To insure the Department obtains clear title, it is necessary that a period of
four (4) months pass from the time of registration of title in North Carolina. It is
therefore, incumbent that title be registered in North Carolina as soon as possible so as
not to stop the acquisition process. If a title is already possessed by the owner, the
Agent should be certain that Section A of the title shows the purchaser as "Department
of Transportation", it is properly signed by the claimants and notarized at the closing of
the transaction. The title should be forwarded to Raleigh with the closing papers for the
claim.
The sale of a mobile home should be handled the same as other improvements to be
sold. When a mobile home is purchase as part of the right of way acquisition, the title is
to be sent to the Real Property Agent with a memo stating if and when and by what
contractor the mobile home will be abated and demolished or if it is to be sold by sealed
bid so that the title can be transferred into the Department’s name. If the current owner
277
is to retain the mobile home, the title does not have to be sent to the Real Property
Agent.
14.12 RESALE OF IMPROVEMENTS TO OWNER
Administrative Code 19A NCAC 02B.0138 states a specific order for the disposition of
improvements:
(1)
(2)
(3)
(4)
(5)
Resold to the property owner for the retention value placed upon the
improvement by the appraisal;
Sold by public sale or by negotiated sale if no bids are received after public
advertisement;
Demolished by the roadway contractor or by demolition contract; or
Retained by the Department for other public use; or
Sold to a displacee for replacement housing.
When selling by public sale, the improvement must be advertised for two (2)
consecutive days (Saturday and Sunday will suffice), and the bid opening must be no
fewer than ten (10) days after the last day of advertising.
In order for all approvals and permits to be obtained, no fewer than 44 calendar days
should be allowed for the moving of the improvement.
If an improvement is to be demolished, documentation of an attempt to sell by public
advertisement, or documentation regarding less than 44 days remaining on the
schedule or pictures documenting the unsellable condition of the house must
accompany the inspection estimate (frm14-m).
As stated in chapter 9, the preferred method of disposing of improvements, particularly
those where the owner has sufficient remaining land to relocate the improvement it, is to
sell the improvements back to the owner for the retention value. The property owner
may desire to retain only some of the improvements, such as an outbuilding. In this
case, the Negotiator should not attempt to sell these separate items back to the
property owner without first establishing a retention value for each item. If any item is
sold to the property owner, he should be required to sign the standard Department Bid
Form (FRM14-G), which has been prepared to fit the particular situation.
If the owner desires to retain their dwelling, the Agent should advise them as follows:
1.
The claimant should be advised at the time of initial contact that if he is thinking
of retaining any improvements, he should be aware they will have to be
inspected for asbestos at his own expense. If necessary, the Agent can provide
the owner with a list of inspection firms. The Agent should state that this
inspection is required by the Department of Health and Human Services prior to
any building being moved or demolished from a highway project.
278
2.
At the time of the offer the claimant should be advised that if the building has not
been inspected, he should do so, in order to be aware of any problems he may
have regarding asbestos, should he decide to retain the improvement.
3.
At closing, the owner will be required to pay the retention value, the performance
deposit and sign the "Bid Form" with the asbestos clause included. The Agent
should be sure the owner understands he will be responsible for compliance with
all asbestos regulations when moving the improvement.
4.
The Bid Form, copy of the inspection report, FRM14-E (credit sheet), FRM14-I
(performance deposit form) and cashier’s or certified checks should be submitted
to this office for acceptance.
5.
If, after the owner has had the improvement inspected, he decides he does not
want to retain the improvement, then the Department may reimburse him for the
cost of the inspection based on the owner providing the Right of Way Agent with
a copy of the inspection report and a paid receipt.
6.
To request reimbursement for the inspection, the Agent should prepare a final
report and submit it to the Raleigh Office, along with a copy of the inspection
report and the paid receipt, and state in the justification section that they are
requesting payment to reimburse for the inspection report.
The property owner shall be required to put up a performance deposit to guarantee
removal and clean-up. The amount of this deposit should be determined by the Right of
Way Agent from Table 1, Suggested Performance Deposits shown on FRM14-CC and
should be an amount sufficient to cover the expenses in the event it is necessary for the
Department to clean up the area if the property owner has not done so.
The Bid Form should be prepared and the property owner requested to sign it and
furnish an appropriate certified or cashier’s check at the time the payment for the right of
way is made. Should they decline to sign the Bid Form at this time, it should be
submitted, unsigned, along with the Final Report with the statement that the Bid Form is
to be returned for execution and collection of the performance deposit when the check
for closing the claim is delivered. If the performance deposit is received at the time the
Right of Way Agreement is executed, the Bid Form together with FRM14-I, should be
submitted to Raleigh under separate cover from the Final Report with an appropriate
statement in the Final Report to this effect. It is not necessary to mention in the Right of
Way Agreement the cut-off of the building by the property owner since this can be
handled in the Bid Form. Should the cut-off of a building be necessary and agreeable by
the property owner, the amount paid for the cut-off should be required as a performance
deposit. All performance deposits should be in the form of certified or cashier’s checks.
Of course, if no performance deposit was secured when the agreement was signed and
the right of way has been satisfactorily cleared by the time the check is delivered, the
performance deposit may be waived.
279
14.13 PROMPT REPORTING OF ALL RECEIPTS COLLECTED
G.S. 147-77 requires daily deposit of funds to the credit of the Treasurer of North
Carolina. This statute provides, in part, that all revenue and other receipts collected by a
North Carolina State Agency shall be deposited immediately following the date of
collection. In order to comply with the provision of this statute, it is imperative that the
Division Right of Way Agent promptly forwards to the Real Property Agent all receipts
collected. The receipts in this category are: (1) all money collected for the sale of
buildings or other improvements, including partial payments; (2) all money collected for
the sale of real property, including partial payments; (3) all money collected on the
rental property; (4) all performance deposits collected in connection with the sale of
buildings, or other improvements.
Proceeds collected for Items 1, 2 and 3 above are to be transmitted to the Real Property
Agent with standard letter of transmittal entitled "Collections for Sale-Rental of StateOwned Property" (FRM14-E). Also, all performance deposits collected in connection
with the sale of buildings or other improvements will be transmitted to the Real Property
Agent with an original and two copies of FRM14-I, submission of Performance Deposit.
When submitting forms for the approval of the sale of improvements to the Real
Property Agent, a copy of the advertisement is to be attached to each individual item
submitted. If the advertisement is not letter-size, it is to be taped to a sheet of lettersized paper so it will not be lost in the transmittal. All advertisements are to contain
asbestos information availability and a statement to the effect that the Department
reserves the right to reject any or all bids.
14.14 PUBLIC SALE OF IMPROVEMENTS
As improvements become vacant, the Agent should arrange to have them inspected for
asbestos. The Agent should proceed with offering these improvements for public sale
and, if no bids are received, with letting a demolition contract. It is the Department’s
intent to have no asbestos-containing improvements in the roadway contract in the 200
series items. If for some reason this abatement/demolition cannot be performed on a
parcel prior to the "letting date", the Raleigh Office should be notified so a delay of entry
can be included in the roadway contract if necessary.
Improvements acquired by the Department must be disposed of by public sale. The
preferred method of sale is by means of sealed bids, after proper advertisement. In
unusual situations, it may be desirable to sell improvements by means of auction sale,
but only after prior approval of the Real Property Agent. Sales of property must be
advertised in a newspaper of general circulation in the county in which the property is
located. The advertisement should appear in two consecutive issues of a daily or
weekly paper. The date for opening bids should not be earlier than ten days after
publication of the first advertisement. A typical advertisement for the sale of buildings
280
follows and please note that the Division Right of Way Agent’s name should be referred
to in the advertisement.
NOTICE
The following buildings located on Project 8.1475203 (Raleigh Beltline) in Wake
County are offered for sale to the highest bidder:
Parcel 2 - One story frame dwelling located at 3208 Avent Ferry Road. Parcel 10 One story brick dwelling located at 409 Cherry Street. A mandatory pre-bid
meeting will be held on site located 2308 Avent Ferry Rd. at 10:00 am on May 16,
1981. No bids will be accepted by anyone not attending. A copy of the asbestos
report for each building is available upon request. Only sealed bids on Bid Forms
furnished by the Department of Transportation and placed in a sealed envelope
with the words "Sealed Bid" and the bid opening date written on the front of the
envelope will be considered. Bids will be opened on Friday, May 30, 1981, at 10:00
A.M. in the office of the Division Right of Way Agent of the Department of
Transportation located at 815 Stadium Drive, Durham, NC. Sealed bids shall be
delivered to the above address or mailed to C. D. Parker, Division Right of Way
Agent, Department of Transportation, P. O. Box 15580, Durham, NC 27704. Sealed
bids must be received in the office of the Division Right of Way Agent located at
815 Stadium Drive in Durham, NC prior to 10:00 A.M., Friday, May 30, 1981, or
they will not be considered. The Department of Transportation reserves the right
to reject any and all bids. In accordance with Title VI of the Civil Rights Act of
1964 and Title 49, Code of Federal Regulations, minority business enterprises will
be afforded full opportunity to submit bids and will not be discriminated against
on the grounds of race, color or national origin. For full particulars, contact the
above-mentioned office at the given address or telephone (919) 683-6847.
When disposing of improvements on parcels where multiple improvements are located
on a property, it is essential that the description of improvement on the Bid Form be
specific in identifying each improvement by location, such as a house number. The
specific identification of improvements on a multiple-improved property should eliminate
any misunderstanding or confusion when different individuals purchase these
improvements and will help prevent the possibility of these individuals removing the
wrong improvement.
The above advertisement, including the civil rights reference, should be used on all
projects.
Invoices for the publication of advertisement, together with proof of publication (i.e.
affidavit of publication and/or tear sheet), shall be secured from the newspaper by the
Division Right of Way Agent and forwarded to the Raleigh Office for payment. In
addition to a newspaper advertisement, the Right of Way Agent should place
appropriate "FOR SALE" signs on the premises. A copy of the advertising notice should
be sent to house moving or demolition contractors in the area. Also, a copy of the notice
281
should be sent to any person who may have indicated a desire to purchase
improvements for sale.
On the issuance of any bids to a prospective purchaser, an envelope addressed to the
Division Agent with the word "BID" stamped on the left side of the envelope should be
supplied with the Bid Form (FRM14-H). Also, the date for the opening of bids should
appear on the envelope.
The Bid Form to be used for the sale of buildings by public sale (FRM14-H) should
include the civil rights compliance reference. The bidder will be required to submit with
his bid a personal check. If the bid is $500.00 or less, a check in the full amount of the
bid should be submitted with the Bid Form. If the bid is in excess of $500.00, the bid
deposit shall be $500.00. The performance deposit will be predetermined by the Right
of Way Agent from Table 1 (FRM14-CC) and inserted in the Bid Form before delivery to
the prospective bidder. Should the amounts not be adequate to cover the removal of the
improvement, a higher performance deposit should be required.
At the expiration of the time allowed for receiving bids, the bids shall be opened publicly,
tabulated and recorded. The Division Right of Way Agent and at least one other
Departmental employee should be present at all bid openings. The Division Right of
Way Agent should open, state and hand the bid to the second employee for tabulation.
Proposals and deposits shall be carefully checked and the amount of the bid announced
for the benefit of those present. Any person present desiring to inspect the bids should
be allowed to do so under the supervision of the Department employees present. No
changes can be allowed to any bid after it has been opened. It should be made clear to
those present that no bid will be considered as binding upon the Department until it has
been accepted by the Manager of Right of Way, the Assistant Manager of Right of Way
or the Assistant Manager of Right of Way. After all bids have been checked and
tabulated, the deposits of unsuccessful bidders shall be returned personally to those
present and by mail to those not present. The high bid, along with the personal check, a
copy of the advertisement, and Sales Data Sheet, all bids received and a transmittal
letter/tabulation of all bids (FRM14-J) should be sent to the Real Property Agent for final
acceptance or rejection. A copy of the transmittal letter and approved bid will be
returned to the Agent indicating the action taken. The Agent should promptly notify the
successful bidder and forward him a copy of the Bid Form, return the personal check
and collect separate certified or cashier’s checks for the full bid price and the
performance bond (see FRM14-CC). Bidders should be allowed a minimum of 30 days
for removal of the improvements. Where possible, however, and circumstances permit,
60 to 90 days may be allowed.
If no bids are received, the Right of Way Agent is to document the individual claim file to
this effect. A copy of the advertisement attached to the standard transmittal letter,
FRM14-J (original only), should be forwarded to the Real Property Agent. A notation
should be made in the bottom right hand corner under "List of Bidders" to the effect that
"No Bids Were Received".
282
If no bids are received for the sale of improvements after proper advertisement, it will be
permissible to negotiate the removal of an improvement with individuals interested in
purchasing them. In so doing, this eliminates the cost to the Department to have the
buildings demolished or removed by contract. In submitting such a sale for approval, a
statement should be entered under the name of the bidder in the bottom right hand
corner of the cover letter to the effect that, "When this building was advertised for sale,
no bids were received. It is estimated that it would cost $200.00 to have this building
demolished and I recommend that this bid be approved." The same procedure with
appropriate forms, checks, etc., should be submitted for a negotiated bid to be approved
as for a public sale.
14.15 PUBLIC SALE OF IMPROVEMENTS WITH LAND RESIDUE
In some instances, it may be advantageous to the Department to sell a building together
with a residue of land, particularly in situations where the Department owns a residue of
sufficient size and consistent with local zoning requirements to accommodate the
building and where there may otherwise be a scarcity of vacant land in the area. In such
situations, the sale of the property will be advertised and conducted in the same manner
as indicated above. The sale of the land, however, must be confirmed and approved by
the Department, the Council of State and the Governor. These sales may take place
prior to construction; therefore, the Agent should inform prospective bidders that the
land sold must be subject to slope or drainage easement outside the right of way, if, in
fact, such easements will be required. It may be necessary to include a provision in the
deed that the buyer acknowledges the effects of the project and releases the
Department from all claims for damage by reason of such project and construction
within the easements.
14.16 DISPOSITION OF EQUIPMENT OR TRADE FIXTURES
The Department sometimes acquires property with the right of way that may be
considered Trade Fixtures or Equipment. For example, in the purchase of a motel the
Department may acquire such items as beds, chairs, tables, linens or other furnishings
normally sold with the motel. In the case of a manufacturing plant, it may acquire certain
items of machinery or other fixtures that are not a part of the real estate. If the owner of
the property does not retain and remove the trade fixtures or equipment after
completion of the acquisition, and if these items have no value or are a detriment to the
sale of the building where they are located, efforts to dispose of these items by public
sale should be considered before a demolition contract is advertised and let for the
building in which these
items are contained.
14.17 DISPOSITION OF IMPROVEMENTS BY DEMOLITION
283
As a rule, all demolition items will be cleared prior to let by open-end contract or by bid
contract. No building having an estimated retention value in excess of $200.00 should
be placed in Section 210 even though no bids were received when advertised for sale,
since demand for the building may develop prior to the time that the contractor begins
work on the project. Such items should be placed in Section 215 so they may be
deleted if a reasonable offer to purchase is received at a later date. The 2002 revision of
the Standard Specifications for Roads and Structures has deleted the previous Section
220 Relocation of Existing Buildings so, in the future, no existing buildings will be
relocated under a roadway contract. The following three sections apply to the
disposition of improvements to be handled in roadway contracts:
Section 200 - Clearing and Grubbing
Included in this section under Subsection 200-5 that states that all timber cut during
clearing operations is to become the property of the Contractor. Any deviations to this
procedure must be handled by a special provision in the roadway contract. There are
only rare instances where this provision would be used and it would be the responsibility
of the Agent handling the project to submit such provisions at the same time other
demolition items are submitted for inclusion in the roadway contract. With regard to
special provisions for the disposition of timber on secondary road projects, it will be the
responsibility of the Agent to advise the District Engineer of such provisions.
Section 210 - Demolition of Buildings and Appurtenances
This section consists of the demolition, removal and disposal of all buildings and
appurtenances included in the contract and their method of payment would be made on
a lump sum basis for each item. Miscellaneous buildings or other improvements will be
included under this section. NOTE: Do not include an item in Demolition of Buildings
and Appurtenances under Section 210 when you anticipate that the item might be
deleted from the contract. A sample guide for submitting the list of items to the Central
Office follows:
STATE PROJECT:
COUNTY:
DESCRIPTION:
DEMOLITION OF BUILDINGS AND APPURTENANCES
The contractor shall demolish the buildings and appurtenances which are listed
below in accordance with Section 210 of the Standard Specifications.
Demolition of Buildings and Appurtenances (Item No. 1)
Parcel 5 - Rt. Of Survey Station 2 + 00, Line L
One-Story Frame Shed
284
Demolition of Buildings and Appurtenances (Item No. 2)
Parcel 8 - Lt. Of Survey Station 12 + 00, Line L
Concrete Block Garage
Demolition of Buildings and Appurtenances (Item No. 3)
Parcel 12 - Lt. Of Survey Station 5 + 00, Line Y-4
Concrete Block Silo
Total Lump Sum Estimate $800.00
In addition to the above items, the Proposal and Contract Section has requested that a
separate list be prepared for each of these items which estimates the cost of removal
for each item. This should be prepared as follows:
STATE PROJECT:
COUNTY:
DESCRIPTION:
SECTION 210 - DEMOLITION OF BUILDINGS AND APPURTENANCES
Demolition of Buildings and Appurtenances (Item No. 1)
Lump Sum
Demolition of Buildings and Appurtenances (Item No. 2)
Lump Sum
Demolition of Buildings and Appurtenances (Item No. 3)
Lump Sum
Total Lump Sum Estimate
$200.00
300.00
300.00
$800.00
Section 215 - Removal of Existing Buildings
This section reserves to the Department the right to delete any and all items from the
contract which are under this section. This section is mainly concerned with the removal
of existing buildings and a sample copy follows to use as a guide in submitting the list to
this office.
STATE PROJECT:
285
COUNTY:
DESCRIPTION:
BUILDING REMOVAL
The Contractor shall remove the buildings and appurtenances which are listed below in
accordance with Section 215 of the Standard Specifications and the following
Provisions:
Building Removal (Item No.1)
Parcel 1 - Lt. Of Survey Station 2 + 00, Line L
One-Story Frame Dwelling
Building Removal (Item No. 2)
Parcel 1 - Rt. Of Survey Station 2 + 25, Line L
One-Story Frame Dwelling - Partially outside right of way and/or construction line
Building Removal (Item No. 3)
Parcel 25 - Rt. Of Survey Station 20 + 15, Line L
One-Story Frame Dwelling - Partially outside right of way and/or construction
Building Removal (Item No.4)
Parcel 25 - Rt. Of Survey Station 22 + 75, Line L
One-Story Concrete Block Business Building
When the description of the work for an item requires a portion of the building to be cut
off, that portion of the buildings and appurtenances located within the right of way
and/or construction area shall be cut off by the Contractor and disposed of by him. The
Engineer will denote on the building the line where the building is to be cut off. The
Contractor will be required to cut the building off on a neat line along the construction
line or right of way boundary designated by the Engineer. The Contractor will not be
required to do any repairing to that portion of the building located outside the right of
way or construction area or to shore it up in any respect. All of the Contractor’s work
shall be confined to the right of way and construction area designated by the Engineer.
(This paragraph pertains to Item No. 3.) (This paragraph is to be used only in cases
where a building must be cut off.)
When the description of the work for an item indicates a building partially inside and
partially outside the right of way and/or construction area, but does not require the
building to be cut off, the entire building shall be removed. (This paragraph pertains to
Item No. 2.) (This paragraph is to be used only where buildings are partially inside or
outside right of way and/or construction area but not to be cut off.)
In addition to the above items, the Proposal and Contract Section has requested that a
separate list be prepared for each of these items which estimates the cost of removal
for each item. This should be prepared as indicated below:
286
STATE PROJECT:
COUNTY:
DESCRIPTION:
SECTION 215 - REMOVAL OF EXISTING BUILDINGS
Upon receipt of copies of the lists referred to above, the State Negotiator will have them
checked, and, if found in order, the originals will be forwarded to the Roadway Design
Department for inclusion in the proposal and contract for the project.
Building Removal (Item No. 1) Lump Sum - - - - - - - - $500.00
Building Removal (Item No. 2) Lump Sum - - - - - - - - - 800.00
Building Removal (Item No. 3) Lump Sum - - - - - - - - - 700.00
Building Removal (Item No. 4) Lump Sum - - - - - - - - - 75.00
Total Lump Sum Estimate - - - - - - - - - - - - - - - $2,075.00
14.18 DISPOSITION OF IMPROVEMENTS BY MOVING CONTRACT
The Department will not enter into any contracts with property owners whereby the
Department will assume the contractual responsibility to move dwellings or buildings
from the right of way, except where a contractual obligation exists under a previous
written agreement with the property owner or where a property owner on a secondary
road improvement project has donated the right of way and it has been agreed the
buildings within the right of way will be moved by the Department. Where a contractual
obligation exists under a former agreement to move a dwelling, it is the policy of the
Department to purchase the dwelling from the property owner rather than move it under
the roadway contract. In this event, the Agent will have the dwelling appraised and
proceed to acquire the dwelling and relocate the owner/tenant, who would be eligible for
relocation benefits, from the right of way.
For a building or structure not involving a displacee, the Agent will advertise for house
movers for the cost of moving the building or structure on a ‘turn-key’ basis (FRM14-LLL
NEW FORM). If the cost of moving the building or structure and setting it back up is less
than the value of the building, the owner may be paid the lower of the ‘ turn-key’ moving
estimates; however, if the cost of moving exceeds the value of the building, the owner
may be paid only the appraised value of the building. In this situation, if the owner
insists that the building be moved because of the contractual obligation, the Department
will pay the owner who will then assume responsibility for moving the building from the
right of way to a new site even if the cost of doing so exceeds the value of the building.
Upon agreement and payment of the moving cost, the Agent will secure a release from
the property owner who then assumes all responsibility for the relocation of the building
or structure from the right of way.
287
14.19 CONTRACTS FOR DEMOLITION AND/OR ASBESTOS
ABATEMENT
In preparing a project for letting and in clearing it of improvements which were not sold
prior to letting the project to contract, the Department will abatement all asbestos
containing material from unsalable buildings prior to removing or demolishing them
either by local contract or using one of the Branch’s ‘open-ended’ contractors. Any
buildings or improvements that are placed in the Roadway Contract under Section 210
or Section 215 for disposition by the roadway contractor shall be asbestos free
according to an understanding between the Right of Way Branch, the Construction Unit
and roadway contractors.
Contracts for asbestos inspections and asbestos abatement and/or demolition of
improvements can be obtained from the Branch’s ‘open-ended’ contractors. On an
annual basis, Agreements for Asbestos Inspections, Abatement and Structure Clearings
will be approved by the Board of Transportation to allow qualified contractors to perform
asbestos inspection, asbestos abatements and/or demolition services on an ‘on-call’ or
‘as needed’ basis throughout the State. Unit prices for asbestos inspections, for
asbestos abatement and for demolitions will be approved for each contractor and
forwarded to each Division Office to be used in contracting directly with them for any of
their services. These contracts will be administered through the Branch’s Real Property
Agent in the Central Office who will be responsible for the approval of each contract,
securing performance bonds and making payments upon completion of work. In
accordance with the policy of the Asbestos Hazardous Management Branch of the NC
Division of Epidemiology, different contractors will be chosen to perform asbestos
inspections and to perform asbestos abatements and demolitions. These ‘open-ended’
contracts can be used on projects where sufficient time is not available to advertise and
bid a contract between possession of improvements and the project lettings, emergency
situations, advanced acquisition disposals, and where required services may not justify
the cost of advertisement and bidding.
As previously mentioned, Open-ended Contractors will be used to perform all asbestos
inspections. Work Assignment Cost Estimate - Inspections (FRM14-M) will be sent to a
contractor whose offices are located near a project and who can perform the
inspections within a reasonable time. Upon receipt of the completed worksheet, the
prices for inspections will be reviewed to determine if they are in line with the approved
unit prices. If the prices are acceptable, the worksheet will be submitted to the Real
Property Agent in Raleigh for approval with 3 copies being returned for the Contractor,
the Division Engineer and the Division Office file. Work shall not commence until the
Contractor has been notified of the approval of work. Upon verification of completion of
the work, the Contractor’s invoice, along with copies of the inspection reports for each
improvement, shall be submitted to the Real Property Agent for payment.
If time does not permit for the advertisement of asbestos abatements (FRM14-N), an
Open-ended Contractor will be requested to submit a Work Assignment Cost Estimate Abatement to perform the abatement of those improvements containing asbestos
288
materials revealed by the inspections. The processing of the abatement worksheets for
approval will be the same as for inspection worksheets as discussed above, except, that
prior to approval of the contract, the Contractor must obtain a Performance Bond and a
Payment Bond in the full face amount of the abatement contract less landfill and permit
cost. The Real Property Agent will provide guidance and forms to the contractors in
obtaining the Performance Bond and Payment Bond through a surety bond, or a cash
bond. After contract approval, the Contractor is required to obtain permits, which have a
ten-day waiting period before work can commence, from the Asbestos Hazardous
Management Branch. Arrangements should be made with the Division Engineer’s Office
for an inspector to be present during abatement activities on the project. Once the work
has been completed, the Real Property Agent will process an invoice for payment and
the release of the bonds.
Again if time does not permit for the advertisement of the demolition of improvements
(FRM14-O), an Open-ended Contractor will be requested to submit a Work Assignment
Cost Estimate -Clearings to perform the demolition of the improvements which are
asbestos free. The Contractor must submit the worksheet for clearings and obtain the
proper bonds prior to the approval of the contract. After obtaining contract approval and
permits for demolition from the Asbestos Hazardous Management Branch and
submitting copies to the Department, the Contractor may commence work.
Arrangements should be made with the Division Engineer’s Office for an inspector to be
present during demolition activities on the project. Upon completion of work, payment
and release of bonds will be processed upon receipt of an invoice and landfill receipts
from the Contractor. The Right of Way agent should submit the invoice, all landfill
tickets, copies of permits and contractor evaluation (FRM14-OO new form) to the Real
Property Agent for review, approval and payment.
When sufficient time permits in the right of way schedule, local contracts for the
abatement of asbestos and/or demolition of structures and improvements are preferred.
Local contracts will be advertised and bid in accordance with bidding procedures
outlined for the Public Sale of Improvement section of this Chapter in the Manual,
except that the lowest acceptable bid will generally be approved. Four (4) Proposals
and Contracts for Demolitions, one for single projects with asbestos (FRM14-K), one for
single projects without asbestos (FRM14-KK), one for multiple projects with asbestos
(FRM14-L) and one for multiple projects without asbestos (FRM14-LL), will be used for
the removal or demolition of improvements, plus asbestos abatement when required, of
the above-mentioned improvements or existing buildings prior to project let. The
successful Contractor will provide performance and payment bonds prior to contract
approval and permits from the Asbestos Hazardous Management Branch prior to the
commencement of work. Arrangements should be made with the Division Engineer’s
Office for an inspector to be present during the abatement and demolition activities on
the project. Upon completion of work, payment and release of bonds will be processed
upon receipt of an invoice and landfill receipts from the Contractor.
For contracts with a value over $30,000 project, the successful contractor must have a
General Contractor’s license in order to perform the work.
289
14.20 EXCHANGE OF IMPROVEMENTS FOR RIGHT OF WAY
In some instances, an adjoining property owner who has remaining land may wish to
purchase improvements acquired by the Department from other owners in exchange for
right of way taken. This type of transaction is generally discouraged; however, if it will
aid in reaching a settlement, the Agent may enter into such agreements providing that
the original owner of the improvement has refused to purchase the buildings for their
retention value. If the original owner does not desire to repurchase the improvement, it
may be exchanged on the basis of a retention value established by the Department. If
the retention value of the improvements is greater than the appraised damage to the
subject property, the property owner should pay the Department the difference. In
implementing this type of transaction, the standard department Bid Form should be
used and the purchaser of the building should be required to furnish a performance
deposit to insure cleanup of the premises after moving the building.
14.21 HANDLING OF PERFORMANCE DEPOSITS
The General Statutes provide that all funds received by the State be deposited on the
next day after receipt. The State Auditor has ruled that performance deposit checks
made payable to the Department of Transportation are included in this category. The
Agent should immediately transmit to the Raleigh Office all certified or cashier’s checks
received as performance deposits using FRM14-I. Upon satisfactory completion of the
work, the amount of these checks will be refunded by the Department to the person or
firm making the deposit (see FRM14-I). The performance deposit submitted by the
successful bidder is to be forwarded immediately to the Real Property Agent with
FRM14-I. The Agent is cautioned to show in the space for "name of depositor" the name
of the person who purchased the improvement rather than the name of the bank or the
person on whose account the check is drawn, unless the two are the same. The Agent
is also to enter the address of the depositor. In those instances where, in the sale of
improvements, the Agent receives a combined bid covering one or more parcels, it is
suggested that the name following "Claim of" be the first name shown in the column
under "Improvements purchased by the Department of Transportation from", and
immediately following the first name, "See back of form for additional claimants names".
In filling out the last block, "Improvements purchased by the Department of
Transportation from", if there are more items than the block will accommodate, this
information should be continued on the reverse side of the form. The check covering the
deposit should be attached to the form. After all the improvements have been
satisfactorily removed and the premises cleared to the satisfaction of the Division Right
of Way Agent, he should promptly submit FRM14-I, Return of Performance Deposit, to
the Branch’s Real Property Agent.
14.22 REMOVAL OF GRAVES OR CEMETERIES
290
On any properties where a cemetery or graves must be removed from the right of way. ,
the preferred procedure to follow is by consent of the next of kin. The Agent must
consider that the removal of graves may involve a delicate situation in which
sentimental considerations are often present. In discussing such matters with the next
of kin, he should be respectful and considerate. Since all work pertaining to the removal
of graves shall be under the supervision and direction of the County Board of
Commissioners or other appropriate officials, including the local Health Director, the
Agent should ascertain the proper party to contact in each county in which graves will
be disinterred and/or reinterred. A letter from the Division Right of Way Agent to the
Board of County Commissioners for both the disinterment and/or re-interment sites shall
be written indicating that the Department is certifying the necessity for moving the
graves and/or cemetery from the right of way of the proposed project. A copy of this
prescribed letter will be sent to the appropriate Health Department.
In many instances, the remains may be removed to a burial plot in the same cemetery
and this practice should be encouraged wherever possible. If requested by the next of
kin, however, the remains may be removed to another cemetery or location in the
community. Notification to Remove Grave and Marker (see FRM14-T), should be
executed by the next of kin of the deceased. A copy of this form shall be given to the
next of kin after being completed, dated and signed by the Agent. This fulfills the thirty
(30) day written notice requirement of the Statute. In the event the remains are being
removed and relocated in a cemetery that will not permit above ground markers or
headstones, a provision should be placed in the form regarding the disposition of the
markers that are located in the cemetery. In such cases, a suitable replacement marker
shall be provided by the Department. The existing markers are usually buried with the
remains at the new grave site. The Agent must arrange for and secure the substitute
burial plot, with the Department paying all expenses of disinterment, removal and
reinterring, including the actual reasonable expense of one of the next of kin incurred in
attending the disinterment. The expenses of the next of kin may not exceed the sum of
two hundred dollars ($200.00). Deeds to substitute burial plots should be drawn in favor
of the next of kin. If no next of kin can be located, the plot should be deeded to the
county, if agreeable, and to the Department as the last resort.
Regardless of whether the next of kin can be located or the next of kin will not grant
permission for the removal of the remains, it will be necessary for the Department to
resort to the procedure in GS 65-13 106, which provides in part as follows:
§ 65-106. Removal of graves; who may disinter, move, and reinter; notice;
certificate filed; re-interment expenses; due care required.
(a) The State of North Carolina and any of its agencies, public institutions, or political
subdivisions, the United States of America or any agency thereof, any church,
electric power or lighting company, or any person, firm, or corporation may affect the
disinterment, removal, and re-interment of graves as follows:
291
(1)
By the State of North Carolina or any of its agencies, public institutions,
or political subdivisions, the United States of America or any agency
thereof, when it shall determine and certify to the board of county
commissioners in the county from which the bodies are to be
disinterred that such removal is reasonably necessary to perform its
governmental functions and the duties delegated to it by law.
(2)
By any church authority in order to erect a new church, parish house,
parsonage, or any other facility owned and operated exclusively by
such church; in order to expand or enlarge an existing church facility;
or better to care for and maintain graves not located in a regular
cemetery for which such church has assumed responsibility of care
and custody.
(3)
By an electric power or lighting company when it owns land on which
graves are located, and the land is to be used as a reservoir.
(4)
By any person, firm, or corporation who owns land on which an
abandoned cemetery is located after first securing the consent of the
governing body of the municipality or county in which the abandoned
cemetery is located.
(b) The party effecting the disinterment, removal, and re-interment of a grave containing
a decedent's remains under the provisions of this Part shall, before disinterment,
give 30 days' written notice of such intention to the next of kin of the decedent, if
known or subject to being ascertained by reasonable search and inquiry, and shall
cause notice of such disinterment, removal, and re-interment to be published at least
once per week for four successive weeks in a newspaper of general circulation in
the county where such grave is located, and the first publication shall be not less
than 30 days before disinterment. Any remains disinterred and removed hereunder
shall be reinterred in a suitable cemetery.
(c) The party removing or causing the removal of all such graves shall, within 30 days
after completion of the removal and re-interment, file with the register of deeds of the
county from which the graves were removed and with the register of deeds of the
county in which re-interment is made, a written certificate of the removal facts. Such
certificate shall contain the full name, if known or reasonably ascertainable, of each
decedent whose grave is moved, a precise description of the site from which such
grave was removed, a precise description of the site and specific location where the
decedent's remains have been reinterred, the full and correct name of the party
effecting the removal, and a brief description of the statutory basis or bases upon
which such removal or re-interment was effected. If the full name of any decedent
cannot reasonably be ascertained, the removing party shall set forth all additional
reasonably ascertainable facts about the decedent including birth date, death date,
and family name.
292
The fee for recording instruments in general, as provided in G.S. 161-10(a)(1), for
registering a certificate of removal facts shall be paid to the register of deeds of each
county in which such certificate is filed for registration.
(d) All expenses of disinterment, removal, and acquisition of the new burial site and reinterment shall be borne by the party effecting such disinterment, removal, and reinterment, including the actual reasonable expense of one of the next of kin incurred
in attending the same, not to exceed the sum of two hundred dollars ($200.00).
(e) The Office of Vital Records of North Carolina shall promulgate regulations affecting
the registration and indexing of the written certificate of the removal facts, including
the form of that certificate.
(f) The party effecting the disinterment, removal, and re-interment of a decedent's
remains under the provisions of this Part shall ensure that the site in which reinterment is accomplished shall be of such suitable dimensions to accommodate the
remains of that decedent only and that such site shall be reasonably accessible to all
relatives of that decedent, provided that the remains may be reinterred in a common
grave where written consent is obtained from the next of kin. If under the authority of
this Part, disinterment, removal, and re-interment are effected by the State of North
Carolina or any of its agencies, public institutions, or political subdivisions, the
United States of America or any agency thereof, any electric power or lighting
company, then such disinterment, removal, and re-interment shall be performed by a
funeral director duly licensed as a "funeral director" or a "funeral service licensee"
under the provisions of Article 13A of Chapter 90 of the General Statutes.
(g) All disinterment, removal, and re-interment under the provisions of this Part shall be
made under the supervision and direction of the county board of commissioners or
other appropriate official, including the local health director, appointed by such board
for the county where the disinterment, removal, and re-interment take place. If reinterment is effected in a county different from the county of disinterment with the
consent of the next of kin of the deceased whose remains are disinterred, then the
disinterment and removal shall be made under the supervision and direction of the
county board of commissioners or other appropriate official, including the local
health director, appointed by such board for the county of the disinterment, and the
re-interment shall be made under the supervision and direction of the county board
of commissioners or other appropriate official, including the local health director,
appointed by such board for the county of re-interment.
Due care shall be taken to do said work in a proper and decent manner, and, if
necessary, to furnish suitable coffins or boxes for reinterring such remains. Due care
shall also be taken to remove, protect, and replace all tombstones or other markers,
so as to leave such tombstones or other markers in as good condition as that prior to
disinterment. Provided that in cases where the remains are to be moved to a
perpetual care cemetery or other cemetery where upright tombstones are not
permitted, a suitable replacement marker shall be provided.
293
(h) Nothing contained in this Part shall be construed to grant or confer the power or
authority of eminent domain, or to impair the right of the next of kin of a decedent to
remove or cause the removal, at his or their expense, of the remains or grave of
such decedent. (1919, c. 245; C.S., ss. 5030, 5030(a); Ex. Sess. 1920, c. 46; 1927,
c. 23, s. 1; c. 175, s. 1; 1937, c. 3; 1947, cc. 168, 576; 1961, c. 457; 1963, c. 915, s.
1; 1965, c. 71; 1971, c. 797, s. 1; 1977, c. 311, s. 1; 2001-390, s. 3; 2007-118, s. 1.)
The Agent should note that before the method outlined in the statutes may be used, the
property from which the graves are to be removed must be owned by or be in the
custody or control of the Department. If an agreement has not been reached with the
property owner on whose property the graves are located, an action in condemnation
must be filed prior to commencing the procedure for the removal of graves. So there will
be no questions as to ownership of the cemetery area, the Agent should secure a
Preliminary Certificate of Title for the property on which the cemetery is situated. This
should be done even though the approved appraisal for the property is less than
$25,000.00. The Real Property Agent should be notified by the Agent so that he/she
can arrange to handle the necessary advertising procedure through the Attorney
General’s Office. The Agent should furnish the Real Property Agent the following
information:
1. The project number and county in which the cemetery lies, claimant and parcel
number.
2. The approximate survey station of the graves, to include physical location.
3. The name of the cemetery, if it has one; if not, the name by which it is commonly
known.
4. The name of the cemetery to which it is proposed to move the graves.
5. The approximate number of graves to be moved.
6. The names and addresses of the relatives of the deceased persons, if known; if
not, this fact should be stated. If only a portion of the relatives are known, this
fact should be stated.
7. The names of the deceased persons to be moved, if known; if unknown, it should
be stated.
8. The name, address, and publication schedule of a newspaper circulated in the
county in which the cemetery is located.
9. The names and address of the person or persons who own the land on which the
cemetery is located.
294
10. A statement as to whether or not the right of way has been acquired or
condemned in the location where the graves are presently located.
11. A statement of any facts pertaining to the cemetery that will be helpful in
arranging for the removal of the graves.
After the procedures for advertising as specified by the statute have been complied
with, the Real Property Agent will advise the Agent so that arrangements can be made
to have the graves moved. Prior to advertising for Funeral Director, the Right of Way
agent should first forward the following information to the Real Property Agent:
1.
Copy of Board of Trustee minutes or resolution of approval for re-interment of
remains if the new location is a church cemetery;
2.
A copy of the new gravesite price(s) for each plot;
3.
A copy of the cemetery/county requirements regarding vaults;
4.
A minimum of two (2) quotes for vault prices; and
5.
All completed next of kin forms (FRM14-T)
These arrangements will consist of advertising for and awarding a contract for the
removal of the graves. The procedures to be followed in advertising and awarding the
contract will be similar to those outlined previously for the Public Sale of Improvements,
except that the special Proposal and Contract for Grave Removal will be used (see
FRM14-U). An envelope addressed to the Division Right of Way Agent with the word
"BID" stamped on the left side should be supplied with the proposal. Also, the date for
the opening of bids should appear on the envelope. In preparing the proposal and
contract, if it is necessary to furnish and place a new marker, it should be described fully
in the space provided. A statement should also be made that the Contractor will provide
for the installation of the new marker. The Agent should outline the disposition of the
grave markers at the location of the original graves, that is whether they are to be reset
at the new site or be otherwise disposed of. Due care must be taken of all existing
tombstones prior to replacement. The Civil Rights compliance reference must be
included in all proposals and contracts.
(6) After the bid opening the original of the recommended Proposal and
Contract for the grave removal along with the original of all bids received
should be forwarded by the Division Right of Way Agent to the Real Property
Agent for acceptance or rejection. The Real Property Agent will notify the
Division Right of Way Agent and the selected contractor of the type of
performance bond required. A definite date for grave removal can then be set.
The Division Engineer shall be notified by the Division Agent and asked to
295
participate in supervising the grave relocations. One or more R/W Agents should
also be on site during the disinterment process.
Within 30 days after completion of the contract, the Division Right of Way Agent shall be
required to file with the Register of Deeds of the counties from which the disinterment
and/or re-interment occurred a written certification of the removal facts (FRM14-V).
Copies of the map for both disinterment and re-interment sites are to be attached to the
certification. The maps shall contain the following minimum information: Project number,
county, name of cemetery, disinterment or re-interment site, distance from nearest
public road or intersection or roads in vicinity of cemetery, name of contractor moving
graves, date re-interment completed and a north arrow symbol. The scale of the map
should be one (1) inch to 20 feet unless reduced by approval of the Division Right of
Way Agent. The maps should have sufficient information for a layman to identify the
location of the disinterment and re-interment sites.
Should more than one cemetery be involved in the re-interment of the graves, separate
certificates and maps should be filed for each cemetery. All information concerning the
birth and death dates of all decedents should be included on the certificates.
14.23 DEPARTMENT POLICY FOR THE SALE OF SURPLUS LANDS
AND CHANGES IN CONTROL OF ACCESS RIGHT OF WAY
The Board of Transportation must approve the disposal of surplus lands. Surplus lands
are defined as:
A.
Those properties not acquired as part of a highway improvement project
(residue). These are contracted by either FRM14-Z Sale of Residue by Pubic Bid
or FRM14-ZZ Sale of Residue by Negotiated Bid.
B.
Those properties acquired as part of a highway improvement project that are no
longer needed by the Department (surplus right of way). These are contracted by
FRM14-BBB.
C.
Those properties acquired as part of a highway improvement with controlled
access where that control is no longer necessary. These are contracted by
FRM14-BB.
The Department must review all requests for disposal of surplus right of way acquired or
changes in control of access on fully authorized highway improvement projects in
accordance with approved operating procedures as outlined in FRM14-BBBB, Right of
Way Disposal and Control of Access Procedures. All requests must be submitted to the
State Highway Engineer - Design for review. These requests should be submitted by
the District Engineer within the appropriate division.
296
If the request is approved it will be forwarded to the Manager of Right of Way to
complete the abandonment process.
If the request is not approved it is returned to the requesting District Engineer with
information indicating why the request was denied.
If approved, the Raleigh Office will notify the appropriate Division Right of Way Office
regarding the approval of the request. The notification will list any special requirements
for the disposal and will include any maps that have been received.
Upon receipt of the notification from the Raleigh Office the Right of Way Agent will verify
how the right of way being considered for disposal was secured (Right of Way
Agreement or Fee Simple Deed). He should then make contact with the Division
Engineer to confirm that he is in agreement with the areas and conditions of the
disposal. The Agent should then contact the requesting party and advise them of the
following:
1.
The requesting party must have underlying fee ownership in the right of way to
be disposed of if the right of way was acquired by Agreement. If the right of way
was acquired by condemnation and was a total take then the requesting party
must secure a release from the former owner prior to the Department conveying
the property. If the Department acquired the entire property or only a portion of
the original property by negotiations and the original property owner does not
own the remainder of the original tract there will be no need for a release. (This is
in accordance with GS 136-19.) The requesting party should have fee ownership
of the adjacent property to insure that the abandonment does not isolate any
property.
2.
The requesting party must be willing to pay current fair market value
enhancement value), appraisal cost and, if necessary, any engineering cost
required for this disposal. A $3,500.00 non-refundable appraisal fee to cover the
estimated appraisal costs must be secured prior to requesting any appraisals
required. If the Division Right of Way Agent determines that the costs involved
will be nominal he may reduce the deposit amount. This deposit must be in the
form of a certified or cashier’s check accompanied by FRM14-E.
The appraisal fee should be forwarded to the Raleigh Office with FRM14-E . Upon
receipt of the appraisal fee the Agent should proceed to request the appraisal from the
Appraisal Section. The Appraisal Office will notify the Real Property Agent via email
when the appraisal is available along with information regarding the cost of the
appraisal with his transmittal.
After receiving the appraisal the Raleigh Office will notify the Right of Way Agent in
writing of the total enhancement value and appraisal cost. Any deposits received will be
deducted from the total costs.
297
All engineering costs involving Division expenses should be secured by the Division
Office. The Right of Way Agent should contact the Division Office to verify they have
made arrangements to secure their expenses prior to the delivery of any instruments of
conveyance.
When the Right of Way Agent receives his notification of costs he should proceed to
contact the requesting party and advise them of these costs. If they are agreeable then
the Agent will notify the Raleigh Office in writing and include a final description of the
area to be conveyed.
The instruments of conveyance (except control of access changes) as well as Board of
Transportation and Council of State approval will be handled by the Raleigh Office.
The executed instruments will be sent to the Right of Way Agent for delivery and
collection of any remaining payments. Any payments collected should be submitted to
the Raleigh Office. Upon receipt of final payment or verification of delivery of instrument
the Right of Way Agent should submit the necessary plan change to the Raleigh Office
for approval. Upon approval, the Raleigh Office will submit the plan change to Roadway
Design.
14.24 DEPARTMENT POLICY FOR THE SALE OF RESIDUES
Department policy relative to the sale of right of way residues and remainders is as
follows:
1. The sale of all residues will be by public sale, except as hereinafter specified.
2.
Residue properties sold by public sale are to be sold by either sealed bid, or by
auction at the election of the Right of Way Branch. The sale of such properties
must be advertised by publication in a newspaper having general circulation in
the county in which the property is situated. After opening bids or closing of
auction, no upset bids will be considered. The high bid shall be presented to the
Department at its next regular meeting after the date of the sale for rejection or
acceptance. The Department of Transportation reserves the right to reject all bids
(FRM14-Z).
3.
Those residue properties located adjacent to controlled access projects that are
landlocked may be sold to the adjoining property owner by negotiation rather
than public sale for a consideration not less than the appraised value of the
residue (FRM14-ZZ formerly frm14-aa).
4.
Residue properties may be sold to state agencies and institutions and other
governmental units by negotiation rather than public sale for a consideration not
less than the appraised value of the residue (19A NCAC 2B.0143[4]).
298
5.
Surplus property acquired in connection with highway purposes may be used for
the purpose of exchange with a public utility company in part or in full
consideration for the property to be acquired for highway purposes from the
public utility company. Such exchanges shall be based on the appraised values
of the surplus property and the property to be acquired for highway purposes.
Residue property acquired in connection with right of way for a project may be
used for the purpose of exchange in part or full consideration for right of way
being acquired from another property owner on the project. Such exchanges are
to be based on the appraised values of the residue property and the right of way
to be acquired.
6.
"Residues which have an area of one-half acre or less or a value of $1,000.00 or
less and the highest and best use is for assemblage with adjacent property, may
be sold without advertising by negotiations to an adjoining owner. A value for the
residue must be determined by either using the value in the original appraisal if
less than one year old or sales of similar properties and sales of other residues, if
any, in the area. After a value has been established, the Real Property Agent
may negotiate with the adjoining owners concerning the disposal of each residue.
The decision of the Manager of the Right of Way Branch to accept and complete
a sale is final." (19A NCAC 2B.0143[6]).
7.
The Manager of the Right of Way Branch is delegated authority to dispose of
residues with appraised values of less than one hundred dollars ($1,000.00) by
executing and delivering on behalf of the Department of Transportation, a Quit
Claim Deed to the buyers of such residues, after the transactions are first
approved by the Board of Transportation. Conveyances of residues with
appraised values of less than one hundred dollars ($100.00) shall not require the
approval of the Governor and Council of State (19A NCAC 2B.0143 [7]).
8. Residue properties, or portions of residue properties, acquired in connection with
Right of Way for a project and located outside the Right of Way for that project
may be sold by negotiation rather than by public sale to property owners and
tenants who are displaced by the project for relocation of the displacee. Such
sales are to be based upon the appraised value of the residue properties.
9. The approval for the sale of residue properties will expire 2-years after the date
of the approval letter from the Manager of Right of Way or State Administrator.
This two-year limit includes appraisal time, advertising time, and Council of State
approval with deed preparation.
Following the completion of a highway construction project, the project shall be
surveyed to ascertain the number of residue properties which have been acquired.
Following such survey inventories, the residues will be, as soon as practical, disposed
of. Federal funds will be credited accordingly on the disposal of any residue acquired
with Federal monies.
299
The sale of residues, and also buildable lots, referred to in item 6 above will be handled
by the Division Agent similar to the sale and disposal of other residues under the
supervision of the Real Property Agent Office. Where two or more adjoining owners are
involved, each shall be contacted prior to negotiations to ascertain their interest, if any,
in the residue. If only one owner is interested, negotiations can proceed according to
usual policy for sale of a residue to an adjoining owner. When more than one adjoining
owner is interested, all should be furnished a bid form and allowed to submit a bid on
the property for sale. The high bidder will be the successful purchaser.
The Real Property Agent should be consulted by the Division Right of Way Agent prior
to his offering any residue or buildable lot for sale to the general public to avoid possible
conflicts which might occur as a result of prior commitment or disposal by the Property
Management Unit. The Division Right of Way Agent should know and convey to the
Raleigh Office the opinions of the Division Engineer regarding the disposal of a residue
or buildable lot at the time the request is submitted.
A residue card and sketch must be included with the submission of the Final Report to
Raleigh so that an orderly and current tabulation of residues and buildable lots can be
maintained. (See FRM14-W and FRM14-X, on which the residue information should be
submitted.)
14.25 EXCHANGE OF RESIDUES FOR RIGHT OF WAY
In certain instances prior to the completion of right of way acquisition, certain residue
properties may be exchanged in consideration for, or in part consideration for, right of
way to be acquired. Conveyances can only be exchanged or used as part settlement of
a claim on the same project.
14.26 RETENTION OF RESIDUES FOR ADDITIONAL RIGHT OF WAY
Each residue should be examined to see if the entire residue, or a portion of it, should
be retained by the Department as additional right of way for protection of the project. If
so, upon the recommendation of the Division Right of Way Agent, the Real Property
Agent, or the State Negotiator, arrangements should be made with the Roadway Design
Department to have the necessary corrections made in the project plans. Careful
consideration should be given to including excess property as right of way since the
difficulty in changing the right of way may outweigh the advantages of retaining the
property as a residue.
14.27 RETENTION OF RESIDUES FOR OTHER HIGHWAY USES
300
Frequently residue properties may be used to advantage by the Department for such
purposes as material or equipment storage sites, sites for roadside picnic tables, sites
for parking overlooks in scenic areas, or in some instances, as offices for construction
or maintenance personnel where buildings are located on the property. Prior to the sale
of residues, the Division Right of Way Agent should check with the Division Engineer,
and if he does express a desire for the property, the Real Property Agent should secure
the approval of the Manager of Right of Way and the Assistant Chief Engineer –
Operations before assigning the property to the Division. Each proposed sale should be
checked with the Project Development Branch to insure that the residue will not be
needed for, or affected by, a future project.
14.28 TRANSFER OF RESIDUE TO OTHER STATE AGENCIES OR
LOCAL GOVERNMENT UNITS
Occasionally, other state agencies or local government units express a desire to acquire
residue property; however, this occurs so infrequently that the Real Property Agent
should consider such transfers only when approached by the state agency or local
government unit. Transfers of property to other state agencies or institutions should be
based on the appraised value of the residue, and these transfers will be handled
through the Property Control Division of the Department of Administration. Transfers of
property to local government units should be based on the appraised valuation and
handled directly with the proper official of the local government unit. Transfers of
property to other state agencies or institutions or to local government units will require
approval of the Department and deeds of conveyance must be approved by the Council
of State and the Governor.
14.29 PUBLIC SALE OF RESIDUE
Any residue not disposed of by transfer for other public use, by resale to the original
owner or used in the settlement of a claim on the project should promptly, after
completion of the acquisition of the right of way, be sold by public sale. Experience has
shown that a higher bid is usually developed by means of sale by sealed bids after
proper advertisement. In some unusual cases, it may be considered advantageous to
sell by means of public auction; however, any deviation from the sealed bid method
must be approved by the State Highway Administrator after recommendation of the
Manager of Right of Way. Upon advice from the Real Property Agent that a residue or
residues will be sold, the Division Right of Way Agent will advertise for the sale of the
property. The advertisement should be published in a newspaper having general
circulation in the county in which the property is situated and shall appear in two
consecutive issues of the newspaper, with bids to be opened not earlier than ten days
from the publication of the first advertisement. The Agent should place a "For Sale" sign
similar to the example in FRM14-Y on the property. Assistance in preparing such a sign
may be provided by the Division Sign Shop.
301
All adjacent property owners to the residue must be notified either by registered mail or
personal delivery at the time of advertising, as well as any other person who may have
expressed an interest or desire, to purchase the property, that same is to be advertised
and sold. In the event of personal delivery, be sure that your copy of the notice indicates
when and who made the delivery. The advertisement should be placed in the classified
ads section of the newspaper and should be similarly formatted as follows:
For Sale:
The Department of Transportation offers for sale a portion of lands formerly
owned by J. D. Jones and located on U.S. Route 501, approximately 2.6 miles
north of Durham. Only sealed bids on bid forms furnished by the Department of
Transportation and placed in a sealed envelope with the words "Sealed Bid" and
the bid opening date written on the front of the envelope will be considered. Bids
will be opened on Friday, May 30, 1981 at 10:00 A.M. in the office of the Division
Right of Way Agent of the Department of Transportation located at 815 Stadium
Drive, Durham, N.C. Sealed bids shall be delivered to the above address or mailed
to C. D. Parker, Division Right of Way Agent, Department of Transportation, P. O.
Box 15580, Durham, N.C. 27704. Sealed bids must be received in the Office of the
Division Right of Way Agent located at 815 Stadium Drive in Durham, N.C. prior to
10:00 A.M., Friday, May 30, 1981 or they will not be considered. The Department of
Transportation reserves the right to reject any and all bids.
In the sale of residues, the Agent is to use the standard Department Bid Form for the
sale of real property (see FRM14-Z). Prior to delivery of the Bid Form to the prospective
bidder, the Agent should fill in all blank spaces of the form, except the space provided
for the amount of the bid and furnish the bidder a self-addressed envelope with the word
"BID" stamped in the left corner. In informing the bidder of conditions of the sale, the
Agent should specify the following points:
1.
That the successful bid must be approved by the Department and the Council of
State, which may take as long as three to four month to secure approvals and
deliver the deed.
2.
That the State of North Carolina does not warrant title to property, which means
that the purchaser accepts it subject to lax liens or other assessments that may
be in arrears.
3.
Unless there is an accurate survey of the property, the Agent should advise the
prospective purchaser that the description is approximate and he should satisfy
himself as to the area of land that is offered for sale.
4.
It is extremely important, if the residue abuts a controlled access right of way,
that the prospective purchaser is informed of the control of access limitations that
are imposed upon the property.
302
At the time and place designated, the Division Right of Way Agent should open and
read all bids received. Bids should be tabulated and the high bid determined. Any
person present desiring to inspect the bids shall be allowed to do so. The bid deposit on
the unsuccessful bids should be returned to the bidders. The same procedure for
opening these bids should be followed as previously indicated for Sale of Buildings in
Section 14.24. The Agent should determine from the high bidder the name or names of
the persons to whom the deed of conveyance should be drawn. The following
information should be immediately forwarded to the Real Property Agent:
1. A transmittal letter showing the tabulation of bids (FRM14-J)
2. All original bid forms received.
3. A recommendation as to the acceptance or rejection of the high bid.
4. The name or names of the grantees for the deed of conveyance.
5.
A copy of the personal check which accompanied the bid. Once the bid is approved
in Raleigh, and the approved contract is returned to the Right of Way Agent, the
agent returns the personal check in exchange for a certified or cashier’s check for
10% of the purchase price. The certified or cashier’s check is then sent to the Real
Property Agent with FRM14-E.
If the amount of the high bid is less than the amount of the appraisal, the Real Property
Agent is to review the bid with the Manager of Right of Way to reach a decision as to
whether or not the sale will be recommended to the Department for confirmation. If an
accurate survey of the residue is not available or adequate description cannot be
written, the Real Property Agent should immediately request a survey by the Property
Survey Section of the Location Department. Upon receipt of the survey, the Real
Property Agent should request that the Attorney General’s Office obtain confirmation of
the sale from the Board of Transportation and, if necessary, the Council of State at their
next regular meeting and prepare and have executed the deed of conveyance. The
Attorney General’s Office should be furnished with the name of the grantee to the
conveyance, a legal description of the property to be conveyed, the consideration and
any other pertinent information to the sale.
Upon receipt from the Attorney General’s Office, the executed deed of conveyance will
be forwarded by the Real Property Agent to the Division Right of Way Agent for delivery
upon collection of any amount due on the purchase price.
14.30 RESIDUE APPRAISALS
Residues offered for sale to the general public or residues to be appraised for credit to
the Federal Highway Administration must be appraised. The completed appraisal will be
303
forwarded through the State Appraiser to the Real Property Agent, with a copy being
retained in the office of the Area Appraiser.
14.31 INVENTORY OF PROPERTY
It will be the duty of the Real Property Agent to maintain an accurate up-to-date
inventory of all residues and buildable lots acquired by the Department. This inventory
should be maintained by counties and by projects. For this purpose, inventory cards are
provided entitled Real Estate Owned by Department of Transportation (see FRM14-W).
The cards and a sketch map (FRM14-X) are to be prepared in the office of the Division
Right of Way Agent and sent to the Raleigh Office with the Final Report.
In addition to the inventory of residues and buildable lots by inventory cards, the Real
Property Agent must also maintain and update the computerized master file of these
residue properties. All residues and buildable lots owned by the Department of
Transportation are listed by Division and County on this quarterly printout. Such
information as location, previous owner, acreage, book value and availability for sale is
shown. If a residue or buildable lot is bought, sold or there is a change in the information
already on the printout, the necessary forms to illustrate the change must be submitted
to the Fiscal Department for proper processing. This program has been developed so
that each residue and buildable lot may be shown as an asset in the fiscal records of
the North Carolina Department of Transportation.
304
Chapter 15 RELOCATION ASSISTANCE
15.01 Background
The Relocation Assistance Program originally began in 1962, when the FederalAid Highway Act of 1962, required that Relocation Advisory Assistance be made
available to families displaced by right of way acquisition on all highway projects
in which federal funds participated. The act also provided for the reimbursement
as allowed under state law. The effective date of this legislation was October 23,
1962.
The Bureau of Public Roads issued its Policy and Procedures Memorandum
21-4-4, “Assistance for Displaced Families and Businesses”, November 9,
1962, and revised it February 7, 1964. This PPM set forth rules and
regulations implementing the provisions of the Federal-Aid Highway Act of
1962.
In 1965, The General Assembly of North Carolina enacted into law an act to
authorize the State Highway Commission “to pay compensation formoving costs
to the displaced occupants of buildings taken or partially taken by highway
construction”. The compensation provided in this law was up to $200 for the
moving cost of a household and not more than$3,000 for the moving cost of a
business, including farming operations and non-profit organizations. The effective
date of the North Carolina law authorizing the payment of moving costs was
September 1, 1965.
The Federal-Aid Highway Act of 1968, was signed into law August 23,1968.
Before North Carolina could put this program into effect, it was necessary to
pass enabling legislation which was accomplished in the 1969 General
Assembly. Article 13, Sections 136-156 through 136-166 of the General
Statutes of North Carolina was passed into law by the 1969 General Assembly
of North Carolina, effective January 1, 1970.
st
Public Law 91-646 was passed by the 91 Congress (Senate Bill 1),effective
January 2, 1971. This bill is entitled the “Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970”. Subsequent to this law,
federal memoranda were issued.
The North Carolina General Assembly passed legislation G.S. 133-5 through
133-17 in July, 1971, to be effective on January 1, 1972, incompliance with the
previously mentioned Federal law. In June, 1975, the General Assembly
passed G.S. 133-10.1 to become effective uponratification to comply with the
federal provision of “Last Resort Housing”.
Pursuant to this law, the Board of Transportation passed an ordinance at its
305
December 1971 meeting setting forth the general rules and regulations to be
followed in administration of this program.
On February 27, 1985, there was published in the Federal Register Vol. 50 No.
43, a new set of federal regulations that the Department adhered to. On
December 17, 1987, an interim final rule was contained in 49 CFR, Part 24,
which the Department adhered to. On March 2, 1989, there was published in
the Federal Register, the regulation which is the final step in the development of
a government wide single rule for implementing the Uniform Act. This regulation
establishes a government wide single rule for the implementation of statutory
amendments to the Uniform Relocation Assistance and Real Property
Acquisition and Real Property Acquisition Policies Act of 1970 (the Uniform Act)
made by the Uniform Relocation Act Amendments to 1987 Title IV of the
Surface Transportation and Uniform Relocation Assistance Act of 1987 (1987
Amendments), Pub. L. 100-17, 101 Stat. 246-256.
The Uniform Act applies to all Federal or federally assisted activities that involve
the acquisition of real property or the displacement of persons, including
displacements caused by rehabilitation and demolition activities. This regulation
is intended to ensure that the implementation of the Uniform Act by Federal
agencies is, in fact, as uniform and consistent as possible, while encouraging
State and local discretion inimplementing the Uniform Act’s provisions.
Enabling legislation was passed on March 28, 1989, by the NorthCarolina
General Assembly, thereby putting North Carolina in full compliance with
the Uniform Act effective April 2, 1989.
The U.R.A. was again amended by publication in the Federal Register at49 CFR
Part 24 on January 4, 2005, and changes were effective on February 3, 2005.
Only one change had to be confirmed by the N.C. General Assembly, the
increase in business searching expenses from a maximum of $1,000 to $2,500.
Many other changes were made in the federal regulations, but none required rewriting the State statutes.
Any employee designated as an Agent should understand thoroughly these
regulations and the Right of Way Manual. It is imperative that the provisions of
federal and state law be observed without exception.
15.02
PURPOSE
The purpose of these regulations is to promulgate rules to implement the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970 and
subsequent amendments (42 U.S.C. and North Carolina General Statutes G.S.
133-5 through 133-18) in accordance with the following objectives:
306
1.
To ensure that owners of real property to be acquired for State and
Federal assisted projects are treated fairly and consistently, to
encourage and expedite acquisition by agreements with such
owners, to minimize litigation and relieve congestion in the courts,
and to promote public confidence in State and Federal assisted land
acquisition programs
2.
To ensure that persons displaced as a result of State and Federal
assisted projects are treated fairly, consistently, and equitably, so
that such persons will not suffer disproportionate injuries as a result
of projects designed for the benefit of the public as a whole
3.
To ensure that the North Carolina Department of
Transportation implements these regulations in a manner that is
efficient and cost effective.
15.03
REQUIREMENTS AND GUIDELINES FOR
RELOCATION ASSISTANCE
The following are requirements and guidelines for providing relocation assistance
to individuals, families, businesses, farms, and non-profit organizations on
federal-aid and state highway projects. Such assistance will not be offered to
those individuals, families, businesses, etc., located on state secondary road
projects consisting of paving or otherwise improving unpaved secondary roads
on which no federal funds will be used.
15.04
DEFINITIONS
A. Business
The term “business” means any lawful activity except a farm operation that is
conducted:
1. primarily for the purchase, sale, lease, and/or rental of personal and/or
real property, and/or for the manufacture, processing, and/or marketing
of products, commodities and/or any other personal property or
2. primarily for the sale of services to the public; or
3. primarily for outdoor advertising display purposes, when the display must
be moved as a result of the project; or
4. by a non-profit organization that has established its non-profit status
under applicable federal or state law.
307
B. Buildable Lot
The term “buildable lot” means a parcel of typical residential property in which
the owner is left with an interest after the partial acquisition of the owner’s
property and the Department has determined it can be utilized as one (1)
residential homesite.
C. Comparable Replacement Dwelling
The term “comparable replacement dwelling” means a dwelling that is:
1. decent, safe, and sanitary as further described,
2. functionally equivalent to the displacement dwelling. Functionally equivalent
means that it performs the same function and provides the same utility. While
a comparable replacement dwelling need not possess every feature of the
displacement dwelling, the principal features must be present. Generally,
functional equivalency is an objective standard, reflecting the range of
purposes for which the various physical features of a dwelling may be used.
However, in determiningwhether a replacement dwelling is functionally
equivalent to the displacement dwelling, the Department may consider
reasonable trade-offs for specific features when the replacement unit is
“equal to or better than” the displacement dwelling;
3. adequate in size to accommodate the occupants;
4. in an area not subject to unreasonable adverse environmental conditions;
5. in a location generally not less desirable than the location of the displaced
person’s dwelling with respect to public utilities and commercial and public
facilities, and reasonably accessible to the person’s place of employment;
6. on a site that is typical in size for residential development with normal site
improvements, including customary landscaping. The site need not include
special improvements such as outbuildings, swimming pools, or
greenhouses;
7. currently available to the displaced person on the private market. However, a
comparable replacement dwelling for aperson receiving government housing
assistance before displacement shall be based on similar government
housing assistance;
8. within the financial means of the displaced person:
308
•
A replacement dwelling purchased by a homeowner in occupancy for at
least 180 days prior to the initiations of negotiations is considered to be
within the homeowner’s financial means if the homeowner is paid the full
price as further described, all increased mortgage interest costs as
further described and all incidental expenses as further described, plus
any additional amount required to be paid under last resort housing.
•
A replacement dwelling rented by a displaced person is considered to be
within his or her financial means if, after receiving rental assistance under
this part, the person’s monthly rent and utility costs for the replacement
dwelling do not exceed the person’s “base monthly rental” for the
displacement dwelling (actual or economic rent + utilities; or 30% of
income if the displacees income falls within HUD’s Annual Survey of
Income Limits for Public Housing and Section 8 Programs).
•
NEW provision: Tenants not meeting the length of occupancy
requirements are eligible for the same payments, however they should be
charged to the Last Resort function code.
•
NEW DEFINITION: The terms “mobile home” and “manufactured
home” are considered to be synonymous. To be considered as a
replacement dwelling, a “recreational vehicle” or boat must be the
displacee’s primary place of residence, and meet all local and state
codes and ordinances.
D. Contributes Materially
The term “contributes materially” means that during the two (2) taxable years
prior to the taxable year in which displacement occurs, or during such other
periods as the Department determines to be more equitable, a business or farm
operation:
1. had an average annual gross receipts of at least $5,000; or
2. had an average annual net earnings of at least $1,000; or
3. contributed at least 33 1/3 percent of the owner’s or operator’s average
annual gross income from all sources.
4. If the application of the above criteria creates inequity or hardship in any
given case, the Department may approve the use of other criteria as
determined appropriate.
A new definition for “household income” was added in the 2005 URA changes.
309
It means total gross income received for a 12 month period from all sources
(earned and unearned) including, but not limited to: wages, salary, child
support, alimony, unemployment benefits, workers compensation, social
security, or the net income from a business. It does NOT include income from
dependent children, full-time students under age 18, nor the value of Food
Stamps or WIC.
E. Decent, Safe and Sanitary Dwelling
The term “decent, safe and sanitary dwelling” means a dwelling that meets
applicable housing and occupancy codes. However, if any ofthe following
standards are not met by an applicable code such following standards shall
apply, unless waived. Such waiver must be obtained from the Raleigh Central
Office. The dwelling shall:
1. Be structurally sound, weather tight, and in good repair.
2. Contain a safe electrical wiring system adequate for lighting and other
electrical devices.
3. Contain a heating system capable of sustaining a healthful temperature
of approximately 70 degrees for a displaced person, except in those
areas where local climate conditions do not require such a system.
4. Be adequate in size with respect to the number of rooms and area of
living space needed to accommodate the displaced person. The number
of persons occupying each habitable room used for sleeping purposes
shall not exceed that permitted by local housing codes, or in the absence
of local codes, the following policies:
(a.) children under the age of 18 months may occupy the same
bedroom as their parent(s).
(b.) children of the opposite sex under the age of 6 may occupy
the same bedroom.
(c.) a person may qualify for a separate bedroom if that person
has an incapacitating disability or needs space for medical
equipment.
5. There shall be a separate, well lighted and ventilated bathroom that
provides privacy to the user and contains a sink, bathtub or shower stall,
and a toilet all in good working order and properly connected to
appropriate sources of water and to a sewage draining system. In the
case of a housekeeping dwelling there shall be a kitchen area that
310
contains a fully usable sink, properly connected to potable hot and cold
water and to a sewage drainage system, and adequate space and utility
service connections for a stove and refrigerator.
6. Contains unobstructed egress to safe open space at ground level. If the
replacement dwelling unit is on the second story or above with access
directly from or through a common corridor, the common corridor must
have at least two (2) means of egress.
7. For a displaced person with a disability, be free of any barriers which
would preclude reasonable ingress, egress or use of the dwelling by the
displaced person
F. Department
The word “Department” means the North Carolina Department of Transportation.
G. Displaced Person
General
The term “displaced person” means any person who moves from the real
property or moves his or her personal property from the real property (This
includes a person who occupies the real property prior to its acquisition, but who
does not meet the length of occupancy requirements of the Uniform Act.):
a. as a direct result of a written notice of intent to acquire, the initiation of
negotiations for, or the acquisition of, such real property in whole or in part
for a project;
b. as a direct result of rehabilitation or demolition for a project; or
c. as a direct result of a written notice of intent to acquire, or the acquisition,
rehabilitation or demolition of, in whole or in part, other real property on
which the person conducts a business or farm operation, for a project.
However, eligibility for such person applies only for purposes of obtaining
relocation assistance advisory services and moving expenses.
Persons not Displaced
The following is a non-exclusive listing of persons who do not
qualify as a displaced person under these regulations:
a. a person who moves before the initiation of negotiations, unless the
311
Department determines that the person was displaced as a direct result of
the program or project;
b. a person who initially enters into occupancy of the property after the date of
its acquisition for the project;
c.
a person who has occupied the property for the purpose of
obtaining assistance under the Uniform Act;
d. a person who is not required to relocate permanently as a direct result of a
project. Such determination shall be made by the Department in
accordance with any guidelines established by the Federal agency funding
the project;
e. an owner-occupant who moves as a result of an acquisition that is not
subject to the requirements of the Uniform Act or as a result of the
rehabilitation or demolition of the real property (However, the displacement
of a tenant as a direct result of any acquisition, rehabilitation or demolition
for a Federal or federally-assisted project is subject to the Uniform Act);
f.
a person who the Department determines is not displaced as a direct result
of a partial acquisition;
g. a person who, after receiving a notice of relocation eligibility, is notified in
writing that he or she will not be displaced for a project. Such notice shall
not be issued unless the person has not moved and the Department
agrees to reimburse the person for any expenses incurred to satisfy any
binding contractual relocation obligations entered into after the effective
date of the notice of relocation eligibility;
h. an owner-occupant who voluntarily sells his or her property after being
informed in writing that if a mutually satisfactory agreement of sale cannot
be reached, the Department will not acquire the property. In such cases,
however, any resulting displacement of a tenant is subject to the
regulations;
i.
a person who retains the right of use and occupancy of the real property for
life following its acquisition by the Department;
j.
a person who is determined to be in unlawful occupancy prior to or after the
initiation of negotiations or a person who has been evicted for cause under
applicable law.
k.
A person who is not lawfully present in the United States (also see Section
15.17).
312
H. Dwelling
The term “dwelling” means the place of permanent or customary and usual
residence of a person, according to local custom or law, including a single family
house; a single family unit in a two-family, multi-family, or multi-purpose property;
a unit of a condominium or cooperative housing project; a non-housekeeping
unit; a mobile home; or any other residential unit.
NEW DEFINITION: The term “dwelling site” means a land area that is typical in
size for similar dwellings in the same neighborhood or rural area.
I. Farm Operation
The term “farm operation” means any activity conducted solely and primarily
for the production of one or more agricultural products or commodities,
including timber, for sale or home use and customarily producing such
products or commodities in sufficient quantity to be capable of contributing
materially to the operator’s support.
J.
Federal Financial Assistance
The term “Federal financial assistance” means a grant, loan, or
contribution provided by the United States, except any Federal
guarantee or insurance and any interest reduction payment to an
individual in connection with the purchase and occupancy of a
residence by that individual.
K. Initiation of Negotiations
Unless a different action is specified in applicable Federal program regulations,
the term “initiation of negotiations” means the following:
1. Whenever the displacement results from the acquisition of the real
property by the Department, the “initiation of negotiations” means the
delivery of the initial written offer of just compensation by the Department
to the owner or the owner’s representative to purchase the real property
for the project. However, if the Department issues a notice of its intent to
acquire the real property, and a person moves after that notice, but before
delivery to the initial written purchase offer, the “initiation of negotiations”
means the actual move of the person from the property.
313
2. Whenever the displacement is caused by rehabilitation, demolition or
privately undertaken acquisition of the real property (and there is no
related acquisition by a Federal agency or a State agency), the “initiation
of negotiations ”means the notice to the person that he or she will be
displaced by the project or, if there is no notice, the actual move of the
person from the property.
3. In the case of a permanent relocation to protect the public health and
welfare, under the Comprehensive Environmental Response
Compensation and Liability Act of 1980 (Pub. L. 96510, or “Superfund”)
the “initiation of negotiations” means the formal announcement of such
relocation or the Federal or federally-coordinated health advisory where
the Federal Government later decides to conduct a permanent relocation.
L. Lead Agency
The term “lead agency” means the N.C. Department of Transportation.
M. Mortgage
The term “mortgage” means such classes of liens as are commonly given to
secure advances on, or the unpaid purchase price of, real property, (to
include mobile home if considered to be realty for appraisal purposes), under
the laws of the State, together with the credit instruments, if any, secured
thereby.
N. Non-profit Organization
The term “non-profit organization” means an organization that is
incorporated under the applicable laws of the State as a non-profit
organization and exempt from paying Federal income taxes under Section
501 of the Internal Revenue Code.
O. Notice of Intent to Acquire or Notice of Eligibility for Relocation
Assistance
Written notice furnished to a person to be displaced, including those to be
displaced by rehabilitation or demolition activities from property acquired prior to
the commitment of Federal financial assistance to the activity that establishes
eligibility for relocation benefits prior to the initiation of negotiation and/or prior to
the commitment of Federal financial assistance. Use FRM15-RR (Exhibit 15-RR)
for this written notice.
314
P. Owner of a Dwelling
A person is considered to have met the requirement to own a dwelling if the
person purchases or holds any of the following interests in real property:
1. fee simple, a life estate, a land contract, a 99-year lease, or a lease
including any options for extension with at least 50 years to run from the
date of acquisition;
2. an interest in a cooperative housing project which includes the right to
occupy a dwelling;
3. a contract to purchase any of the interests or estates described above; or
4. any partial interest which the displaced person legally possesses in the
acquired property; or
5. any other interest, which, in the judgment of the Department warrants
consideration as ownership.
Q. Person
The term “person” means any individual, family, partnership,
corporation, or association.
R. Program or Project
The phrase “program or project” means any activity or series ofactivities
undertaken by the Department of Transportation which mayor may not receive
federal financial assistance.
S. Salvage Value
The term “salvage value” means the probable sale price of an item, if offered for
sale to knowledgeable buyers on the condition that it will be removed from the
property at the buyer’s expense, allowing a reasonable period of time to find a
person buying with knowledge of the uses and purposes for which it is adaptable
and capable of being used, including separate use of serviceable components
and scrap when there is no reasonable prospect of sale except on that basis.
T. Small Business
315
A business having not more than 500 employees working at the site being
acquired or displaced by a program or project, which site is the location of
economic activity. Sites occupied solely by outdoor advertising signs, displays,
or devices do not qualify as a small business.
U. Tenant
The term “tenant” means a person who has the temporary use and
occupancy of real property owned by another.
V. Uneconomic Remnant
The term “uneconomic remnant” means a parcel of real property in which the
owner is left with an interest after the partial acquisition of the owner’s property,
and which the Department has determined has little or no value or utility to the
owner. The Department will offer to purchase it, and if the uneconomic remnant
is purchased and is within the typical home site, its value will be deducted from
the computed RHP.
W. Unlawful Occupancy
A person who occupies without property right, title, or payment of
rent, or a person legally evicted with no legal rights to occupy a
property under State law.
X. Utility Costs
The term “utility costs” means expenses for electricity, gas, other
heating and cooking fuels, water and sewer.
15.05 RELOCATION PROGRAM PLANS
Relocation Environmental Report
Because of the requirements prior to approval of a project, certain
information is necessary for the Environmental Impact Report. The
Raleigh office will advise when a report of this nature is necessary.
FRM15-E will be utilized for each alignment.
This information shall be obtained without contacts with individuals involved. The
time spent in preparing this report should be charged to preliminary engineering.
316
Projects shall be planned in such a manner that the problems associated with the
displacement of individuals, families, businesses, farms, and non-profit
organizations are recognized and solutions are developed to minimize the
adverse impacts of displacement. Such planning, where appropriate, shall
precede any action by the Department which will cause displacement, and
should include an Evaluation of program resources available to carry out timely
and orderly relocations. Planning may involve a relocation survey and
study that may include the following:
1. An estimate of the number of households to be displaced including
information such as owner/tenant status, estimated value and rental
rates of properties to be acquired, family characteristics, and special
consideration of the impacts on minorities, the elderly, large families,
and the handicapped when applicable.
2. An estimate of the number of comparable replacement dwellings in the
area including price ranges and rental rates that may be available to fulfill
the needs of those households displaced. When an adequate supply of
comparable housing is not expected to be available, consideration of last
resort housing actions should be instituted.
3. An estimate of the number, type and size of the businesses, farms and
non-profit organizations to be displaced and the approximate number of
employees that may be affected.
4. Consideration of any special relocation advisory services that may be
necessary from the displacing agency and other cooperating agencies.
15.06 NO DUPLICATION OF PAYMENTS
No person shall receive any payment under these regulations that would have
substantially the same purpose and effect as compensation that the person
receives under the State Law of Eminent Domain, or by insurance proceeds
received which have the same purpose.
15.07 ASSURANCES AND MONITORING
The Department of Transportation has given to the Federal Highway
Administration adequate assurances that on federally assisted projects the
Department will provide and comply with the Uniform Act and these regulations.
It should be noted that the Federal Highway Administration will monitor
compliance of these regulations and the Department shall take whatever
corrective action is necessary to comply with the Uniform Act and these
regulations. Appropriate measures will be taken to carry out these regulations in
317
a manner that minimizes fraud, waste, and mismanagement.
15.08 RELOCATION ASSISTANCE ADVISORY SERVICES
A. General
The Department shall carry out a Relocation Assistance Advisory Program which
satisfies the requirements of Title 6 of the Civil Rights Act of 1964, Title 8 of the
Civil Rights Act of 1968, and Executive Order 11063 and offer the services
described in paragraph B of this section. If the Department determines that a
person occupying property adjacent to the real property acquired for the project
is caused substantial economic injury because of such acquisition, it may offer
the services to such person. A displaced person can refuse relocation services
and still be eligible for payments.
B. Services to be Provided
The advisory program shall include measures, facilities, and services as may be
necessary or appropriate in order to:
1. Personally interview each person to be displaced, determine the person's
relocation needs and preferences and explain the relocation payments and other
assistance for which the person maybe eligible, the related eligibility
requirements and the procedure for obtaining such assistance.
2. Provide current and continuing information on the availability, purchase
prices, and rental costs of comparable replacement dwellings (FRM15-KK), and
explain that the person cannot be required to move unless at least one
comparable replacement dwelling is made available.
a. The Department shall inform the displaced person in writing of the specific
comparable replacement dwelling and the price or rent used as the basis for
establishing the upper limit of the replacement housing payment and the basis for
the determination in order that the displaced person is made aware of the
amount of the replacement housing payment to which he or she may be entitled.
b. Where feasible, housing shall be inspected prior to being made available to
assure that it meets applicable standards. If such an inspection is not made, the
person to be displaced shall be notified that the replacement housing payment
may not be made unless the replacement dwelling is subsequently inspected and
determined to be decent, safe, and sanitary.
c. Whenever possible, minority persons shall be given reasonable opportunities
to relocate to decent, safe, and sanitary replacement dwellings, not located in an
area of minority concentration, that are within their financial means. This policy,
318
however, does not require the Department to provide a person a larger payment
than is necessary to enable a person to relocate to a comparable replacement
dwelling.
3. Provide current and continuing information on the availability, purchase
prices, and rent cost of comparable and suitable commercial and farm properties
and locations. Assist any person displaced from a business or farm operation to
obtain and become established in a suitable replacement location. At a minimum,
the questions at the bottom of FRM15-B, Non-Residential Data Sheet, shall be
discussed with the business displacee on the initial contact.
4. Minimize hardships to persons in adjusting to relocation by providing
counseling, advice as to other sources of assistance that may be available, and
such other help as may be appropriate.
5. Supply persons to be displaced with appropriate information concerning
Federal and State Housing Programs, Disaster Loans and other programs
administered by the Small Business Administration, and other Federal and State
programs offering assistance to persons to be displaced.
6. Transportation shall be offered to all displacees to see comparable
replacement properties.
7. Displacees shall be informed that public housing regulations may restrict the
size of the dwelling to be subsidized. Also advise that public housing may be a
longer term housing solution than the 42month period of URA benefits.
8. Any person who occupies property acquired by the Department, when such
occupancy began subsequent to the acquisition of the property, and the
occupancy is permitted by a short-term rental agreement or an agreement
subject to termination when the property is needed for a program or project,
shall be eligible for advisory services, as determined by the Department.
15.09 EVICTION FOR CAUSE
Eviction for cause must conform to applicable state and local law. Any person
who occupies the real property and is not in unlawful occupancy on the date of
the initiation of negotiations, is presumed to be entitled to relocation payments
and other assistance set forth in this part unless the Department determines
that:
1. The person received an eviction notice prior to the initiation of negotiations
and, as a result of that notice, is later evicted; or
2. The person is evicted after the initiation of negotiations for serious or repeated
319
violation of material terms of the lease or occupancy agreement; and
3. In either case the eviction was not undertaken for the purpose of evading the
obligation to make available the payments and other assistance set forth in this
part.
For purposes of determining eligibility for relocation payments, the date of
displacement is the date the person moves, or if later, the date a comparable
replacement dwelling is made available. This section applies only to persons
who would otherwise have been displaced by the project.
15.10 ALIENS NOT LAWFULLY PRESENT IN THE UNITED
STATES
A. Each person seeking relocation payments or relocation advisory
assistance shall, as a condition of eligibility, certify:
1. In the case of an individual, that he or she is either a citizen or national of the
United States or an alien who is lawfully present in the United States.
2. In the case of a family, that each family member is either a citizen or national
of the United States or an alien who is lawfully present in the United States. The
head of the household may make the certification on behalf of other family
members.
3. In the case of an unincorporated business, farm or nonprofit organization, that
each owner is either a citizen or national of the United States, or an alien who is
lawfully present in the United States. The certification may be made by the
principal owner, manager, or operation officer on behalf of other persons with an
ownership interest.
4. In the case of an unincorporated business, farm or nonprofit organization, that
the corporation is authorized to conduct business within the United States.
B. The above certifications are shown on the Residential Data Sheet (FRM15-A),
the Non-Residential Data Sheet (FRM15-B) and the Claim for Payment (FRM15K). It is important that the appropriate individual sign each of these forms as
explained above. Should the Agent have reason to believe that a person’s
certification is invalid, he or she should request guidance from the State
Relocation Coordinator.
C. An individual displacee illegally in the U.S. is not eligible for any
relocation benefits.
D. Any illegal alien who is part of a family is not eligible for Relocation benefits for
320
himself/herself unless the Department believes that his/her spouse, parent or
child who are legal would face an “exceptional and extremely unusual hardship”
in getting relocated. Thus, normally, only the legal family members would receive
benefits as follows: (A) the moving payment would be based on the proportion of
legal displacees to illegal displacees in the family (ex., three legal displacees and
one illegal displacee means 75% of the normal moving payment would be paid to
the legal displacees; and (B) an RHP or Rent Supplement would be based only
on the comparability needs of the legal displacees (ex., could result in smaller
comps with fewer bedrooms, and thus a lower payment), however, in
comereceived by the illegal displacee would be included in the 30% tenant family
income.
E. In the event that both parents are illegal, but they have only minorchildren who
are legal, the above computed payments would bemade to a “guardian–ad-litem”
who will represent the best interests of the minor children. Check with the Clerk
of the Court to request this arrangement. If there are any fees, pay by Verification
of Services (FRM15-N)
15.11 RELOCATION ASSISTANCE ON ADVANCE AND
SPECIFIC PARCEL ACQUISITIONS
On advance and specific parcel acquisitions where a displacee will be involved,
Relocation Assistance will be required the same as if an active project is
underway.
15.12 INITIAL CONTACT WITH DISPLACEE
Prior to any initial contact with project displacees but once the right of way plans
are received, the Right of Way Agent should make a projectinspection to identify
the number and type of displacees involved.
The Agent will at this time explain to the owner/tenant the Relocation Program as
it affects his/her situation and provide a RelocationAssistance brochure
identifying the areas that are pertinent to the displacee. The Agent will advise
each residential displacee that they will be offered at least one comparable
replacement dwelling and that no one will be required to vacate without at least a
90-day written notice. The Agent will prepare FRM15-A/15-B and will submit it
with the claim for payment and a copy of the FRM 15-A will beattached to the
Evaluation, Form 15-I. It should be stressed to the owner of any tenant-occupied
property that our contact is made with a tenant for securing information only and
that no authorization will be given at this time to the tenant to move. All
information received from the displacee should be treated as privileged and only
revealed to persons authorized by law or the Central Office.
321
On initial contacts involving businesses where fixtures are involved, the Agent
will make an inventory of the business. The Agent should satisfy all
realty/personality issues at that time to determine what items will be eligible for
moving payments.
Should there be questionable items involved, the Agent should have the
inventory list typed and write a letter to the fee owner or his representative,
copying same to the tenant, lessee, or other indicated owners of equipment, as
applicable, and set up a date, time, and place for the meeting between all
parties to determine ownership of the equipment. This letter should be copied to
the State Appraiser, Area Appraiser and Area Negotiator. If possible, all parties
should meet on the specified date for a determination of ownership and make
any revisions in the inventory lists as deemed necessary.
After this meeting is held and the true ownership of all items of trade fixtures is
determined, the Agent will submit a separate inventory form for owner of
equipment to the Appraisal Section, along with his request for an appraisal. All
inventory of personality will be listed on FRM15-V by the Agent. Prior to
determining a moving cost payment for the displaced business, the Agent must
confirm the inventory of personality is accurate and all-inclusive. Items initially
listed as realty or personality may have subsequently changed due to legal
rulings.
Once the initial contacts on the improvements have been completed, there is
usually a period of time before the Evaluation process commences. It is
important that certain action be taken by the Agent during this interim period.
Contacting local municipal and county agencies to ascertain their cooperation in
assisting the project displacees is important in the relocation process. Through
these local authorities, the Agent can procure pertinent land use regulations,
health department requirements, building, mobile home and sign ordinances.
Furthermore, through these contacts, the Agent can obtain utility schedules to be
used in rent supplement computations as well as identify various housing
resources in the locale. Such contacts and fact gathering may later expedite
solutions to relocation problems therefore saving valuable time in the project
schedule.
It is also suggested during this time period that for significant projects the Right of
Way Agent Supervisors (Division Right of Way Agent, Area Negotiator and Area
Appraiser) schedule a meeting and possible field inspection to review these
projects. The agenda of such meetings can give consideration to personality and
realty issues, septic/well problems, control access, treatment of mobile homes
and signs, and particular right of way revisions that may eliminate involved
displacees. Furthermore, other periodic Right of Way Supervisor meetings could
address general concerns such as right of way schedule conflicts, reviewing
status of various claims, and planning future coordination for right of way
activities as needed.
322
15.13 REQUEST FOR REPLACEMENT HOUSING PAYMENTS
When the Appraisal Section has received and approved the appraisal on a
residential property, the Agent's copy of the appraisal will be forwarded to the
Division Right of Way Agent. The right of way schedule requires all residential
appraisals to be delivered on a specific date to the Agent. However, it is
suggested the Agent should communicate with the Area Appraiser prior to this
date to ascertain the projected time period that any approved appraisals will be
delivered to the office for Evaluation purposes. Such communication will assist
the Agent in planning workload assignments. The Evaluation, FRM 15-I (Exhibit
15-I) is to be prepared and submitted to the Division Right of Way Agent for
approval. On owner-occupied properties, the Agent will indicate the percentage
that the value of the dwelling and home site will have to the approved appraisal
by placing the percentage stamp on the appraisal and the Evaluation.
15.14 CONTACTS WITHIN 15 DAYS
The Department believes that the scheduling of our projects is such that no delay
should be encountered in making offers of Replacement Housing. The offer of
Replacement Housing Payment to an owner-occupant will be given on FRM15-G
at the time the offer for the real property is made by the Agent. The tenantoccupant should be contacted within 15 days (if at all possible) of the initiation of
negotiations on the parcel and advised on Form 15-H the amount of the
Replacement Housing Payment. However, there may be occasions when a
personal contact cannot be made in 15 days, and if this is the case, the Form 15H should be sent by certified mail to the tenant, return receipt requested.
The offer of replacement housing payment should be made to the owner or
tenant-occupant within 30 days from the date the Evaluation is signed by the
Agent. The date the Agent signs the report must also be the date the key
comparable is available. If the Agent cannot make the offer by the date
specified, the Evaluation must be updated. The Agent can update the
Evaluation by confirming that the selected comparable is still available. If so, he
should so indicate on the Evaluation as follows: "Comparable still available on
________ (date); By ___(signature)____". Should the original comparable used
or other comparable within the calculated price range not be available, a new
Evaluation must be computed.
In the past, the Department has had a few complaints from owners or landlords
whose tenants have moved prematurely from their residences due to contacts
made by the Right of Way Agent. This problem has caused a loss of rent to the
owner between the time of contact and acquisition of the property by the
Department. In order to correct or prevent this situation from happening, no
notice to vacate will be given tony tenant-occupied properties prior to closing with
the owner, or the date of filing in condemnation proceedings. For unusual cases,
323
you are instructed to get a procedure from the Raleigh Office.
It is anticipated that there will be at least three contacts with either owner or
tenant occupants as follows:
1. The initial contact will be made to deliver the brochure, explain the program,
and secure the necessary information concerning the make-up of a family or
business and other information needed.
2. The second contact will be made if at all possible not later than fifteen (15)
days for owners and tenants after initiation of negotiations, as described
previously. The Relocation Program will again be reviewed with the displaced
person. The displacee will also receive a 90 Day Letter of Assurance (Frm15-CC)
which will start the displacee’s Federally mandated 90 Days of allowable time
before requiring the displacee to move. The Agent should inform the displacee
at this time that he/she will receive a 30 Day Notice to Vacate Letter (Frm15-DD)
once the Department has closed with the owner of the property, or after
condemnation proceedings have been filed on the property.
3. The third contact will be made with the owner and/or tenant occupants
following either the closing of the claim or filing of the claim, at which time both
the owner and the tenants will receive the 30 Day Notice to Vacate Letter
(Frm15-DD) which will state the final date by which the owner or tenant must be
moved from the subject property. A further explanation must be given so that any
proposed replacement housing can be checked by the Agent to ensure that it
meets the standards for decent, safe, and sanitary housing, plus any other
requirements they must comply with to claim a payment. It should also be
explained that the supplemental payment will not be paid prior to occupancy of
the replacement property by the displacee except in unusual situations. Hardship
cases will be considered on an individual basis. The payment of moving costs
can be paid immediately upon the vacating of the dwelling if the displacee is
eligible.
15.15 PROTECTIVE RENTALS
In certain situations, it may be advantageous to the Department to rent from a
property owner vacated/vacant tenant dwellings/commercial properties between
the time of initial contacts with the property owner and landlord and the claim
being closed. Large older dwellings which would accommodate large families,
multi-family structures, non-decent, safe, and sanitary houses and certain
commercial properties present a relocation problem and could possibly be kept
vacant by paying protective rent to the landlord for a period of several months.
This would result in a saving to the Department by not having to relocate
occupants where relocation payments would be much more costly than the rent
324
payment. Generally, the amount of protective rent should not exceed either
market rent (economic rent) or the amount of rent previously paid by the
occupant. In most situations, it is not believed that an extended time of paying
protective rent would occur since the original occupant would normally not vacate
immediately after the offer was made to the owner.
Where possible, properties suitable for protective rental agreements should be
identified at the time of initial contacts. If the property is occupied during initial
contacts, the Agent should encourage tenants to remain in occupancy until the
property is acquired. However, if it becomes feasible to relocate a difficult
situation before acquisition of the property, the Agent should do so. If an
agreement is not imminent, the Agent should contact the property owner to
determine his intentions as to re-occupancy of the involved property. The Agent
should request the property owner not re-rent the vacant building. If this fails, the
Agent might inquire as to the rent the property owner might expect not to re-rent
the property. Agents have authority to negotiate a rent on a month-to-month
basis projected for a time period of approximately six months and not to exceed
the monthly rent paid by the previous tenant unless prior approval is obtained
from the Raleigh Office.
To pay protective rent to a property owner, prior to initiation of negotiations,
approval must be requested and obtained from the Raleigh Office.
In those instances where the Agent has not been instrumental in causing the
move, and an agreement is imminent, it may not be necessary to contact the
property owner or it may be prudent to make one more contact to assess the
property owner's intentions. When it is determined that agreement is not
imminent, the Agent may proceed as above and, if necessary, negotiate a rent
with the property owner.
Once a protective rental agreement is established (see FRM15-VV, the Agent
must request appropriate payments from the Raleigh Central Office each month
using FRM15-DDD.
15.16 NONTAXABLE PAYMENTS OR INCOME
No relocation payment received by a displaced person under this part shall be
considered as income for the purpose of the Internal Revenue Code of 1954,
which has been designated as the Internal Revenue Code of 1986, or for the
purpose of determining the eligibility or the extent of eligibility of any person for
assistance under the Social Security Act or any other Federal law, except for
any Federal law providing low-income housing assistance.
15.17 NINETY DAYS WRITTEN NOTICE
325
No person lawfully occupying real property shall be required to move from a
dwelling, farm, non-profit organization or business location without at least 90
days advance written notice of the intended vacate date. Any exception to the
policy will be directed to the State Agent. Only in extreme cases will less than 90
days be approved. A 90-day notice cannot be issued to a residential displacee
until a comparable property has been made available to the displacee.
In unusual circumstances, an occupant may be required to vacate the property
on less than 90 days advance written notice if it is determined that a 90-day
notice is impractical, such as when the person's continued occupancy would
constitute a substantial danger to the person's health or safety. A copy of the
determination shall be included in the displacee's file.
The 90-day notice for owners of advertising signs will be sent by the Agent when
the claim has been filed on or closed as discussed in Chapter 9 in this Manual. A
displacee is not eligible for relocation benefits until after the initiation of
negotiations with the property owner, or after being given a Letter of Intent to
Acquire. Therefore, once the offer has been made to the property owner, or a
Letter of Intent to Acquire has been delivered, all displaced owners or tenants on
that property should be given the 90 Day Letter of Assurance (Frm15-CC). This
letter assures the displacee that they will have the Federally required minimum of
90 days to relocate before NCDOT can take any measures to get them to
relocate. This Frm15-CC must not be delivered to a residential displacee until
after a comparable replacement dwelling has been made available to the
displacee.
The 90 Day Letter of Assurance does not contain a final date by which the
displacee must be moved. However, it does state that a second letter, a 30 Day
Notice to Vacate Letter (Frm15-DD), will be sent to the displacee, and that the
final vacate date will be stated in the 30 Day Notice to Vacate Letter.
The 30 Day Notice to Vacate Letter should not be sent until after NCDOT has
acquired the property either through closing or filing of condemnation. The final
vacate date shown on the 30 Day Notice to Vacate Letter should ensure that the
displacee not only has at least 30 days to vacate from the date the 30 Day Notice
to Vacate letter is delivered, but it must also allow for the original Federally
mandated 90 days to be fulfilled before requiring the displacee to vacate. An
Agent should review the 90 Day Letter of Assurance in the file to determine when
the 90 day period will or has ended, and adjust the final vacate date on the 30
Day Notice to Vacate letter accordingly.
For instance, if the closing or filing occurs in less than 60 days from the date of
the delivery of the 90 Day Letter of Assurance, then the final vacate date shown
on the 30 Day Notice to Vacate should be far enough in the future to cover both
the 30 day period, and the remainder of the 90 day period the displacee was
326
assured to receive. This may mean that the 30 Day Notice to Vacate Letter has
a final vacate date which is more than 30 days from the date of the delivery of the
notice to ensure that the displacee has been given there full 90 day period.
The above procedures involving the 90 Day Letter of Assurance and the 30 Day
Notice to Vacate Letter should also be followed when dealing with owners of
personalty occupying the right of way which must be relocated.
The 90 Day Letter of Assurance and the 30 Day Notice to Vacate Letter will be
delivered to owners of advertising signs in the same manner as they are
delivered to other displacees as previously discussed.
Since a 90 Day Letter of Assurance is delivered at the time of the offer to the
property owner, this letter should be included in all relocation files. However, in
rare cases where the displacee became eligible for relocation benefits either
through a Letter of Intent to Acquire or by the Initiation of Negotiations, and
moves prior to being given a 90 Day Letter of Assurance, the Relocation Diary
(Frm15-L) should indicate that the displacee moved prior to the necessity for
giving the 90 Day Letter of Assurance. Furthermore, if a displacee moves prior
to the closing or filing date, but after being given a 90 Day Letter of Assurance,
the Frm15-L should indicate that the displacee moved prior to a 30 Day Notice to
Vacate Letter being sent.
It will be the responsibility of the Division Right of Way Agent to ensure that the
property is vacated by the date specified in the 30 Day Notice to Vacate Letter.
Should the displacee request an extension to their vacate date, the Division
Right of Way Agent may grant an extension, if the situation is warranted and if
the project schedule permits, unless there are unusual circumstances which
would require approval of the Raleigh Central Office. If the extension is
granted, the displaced person should be given this extension in writing by the
Division Right of Way Agent and a new date specified when the property must
be vacated.
Due to partial acquisitions, there may be occasions where a residence or
business located outside the acquisition may have to relocate due to effects
caused by the highway project (control of access, acquisition of water supply
and/or septic system, acquisition of the property’s only septic repair area, etc.).
In these situations, a 90 Day Letter of Assurance (Frm15-CC) should be given to
the potential displacee at the time of the Initiation of Negotiations, along with an
offer of relocation benefits. In the case of a possible residential relocation due to
the above mentioned effects, the 90 Day Letter of Assurance must not be given
until a comparable replacement dwelling has been made available to the
potential displacee. Once the property has been acquired through either a
closing or filing, a Notice of Construction (Frm15-YY) should then be delivered to
327
the potential displacee. The Frm15-CC satisfies the Federal Regulation requiring
a 90 day written notice to be given to all displacees who have been offered
relocation assistance. The Frm15-YY serves as the displacee’s notice of their
one (1) year of eligibility to relocate to another location, and claim their relocation
benefits.
There may be occasions where the displacee has failed to take proper action to
relocate from the involved premises in a timely manner. If the Right of Way
Agent has exhausted all efforts to assist the displacee to vacate the property
and is anticipated that the displacee's continued occupancy will be a detriment
to highway construction, the Division right of Way Agent should submit in writing
to the Raleigh Central office a request for commencement of legal action for the
Department to gain physical possession of the involved property. This request
should include but not be limited to the following:
(1) the date the property was acquired;
(2) the vacate date as stated in the 30 Day Notice to Vacate Letter and
extension dates, given if any;
(3) project letting date;
(4) a summary of assistance given to the displacee by the Area Relocation
office including payments and referrals offered; and
(5) a specific explanation of the reasons the displacee has not vacated the
premises.
Based upon the circumstances of the situation and at the request of the Raleigh
Central office, the Agent handling this particular relocation claim and/or the
Division Right of Way Agent should be prepared to submit an affidavit of their
actions which can be utilized in the legal action. During this period of legal
action, the office should maintain close contact with the displacee to monitor his
actions toward vacating the property. Furthermore, the Raleigh Central office
should be kept fully advised of this situation until the Department has gained
physical possession of the acquired premises.
After a building has been permanently vacated, the Agent will check to see that
all utilities have been cut off, then proceed with the disposition and sale of the
improvement. Consideration should be given to the use of state owned dwellings
for sale to displacees, especially in areas where housing is at a premium.
Clearance from the Raleigh Office should be obtained prior to making any offer of
this type.
328
15.18 RIGHT OF WAY ACQUISITION AND
RELOCATION ASSISTANCE FURNISHED BY
MUNICIPALITIES
In certain instances, the Department may enter into agreement with
municipalities to provide the right of way for a project anticipated by the
Department as a Federal-aid project. Before federal funds may be used for any
phase of these projects, it is required that relocation assistance be given by the
municipality or others employed by them in accordance with Departmental
and/or federal regulations. The Raleigh Office may request the Division Right of
Way Agents to assure that the municipality provides an effective relocation
program. In order that this can be properly handled, an agreement between the
municipality and the Department of Transportation will be secured in which the
municipality agrees to provide such relocation assistance to all displacees on
the project.
In the event the municipality is not properly equipped to give this assistance, they
may, by written agreement with the Department, have such assistance rendered
by the Department, Urban Renewal, Redevelopment Commission, etc.
Appropriate records and files must be maintained by the municipality to ensure
future federal participation on any portion or phase of the project. The Division
Right of Way Agents must maintain close scrutiny of the municipalities' files to
ensure this requirement is met.
15.19 MAINTENANCE OF RELOCATION FILES AND RECORDS
The Division Right of Way Office will maintain a file for each displaced person as
well as a general file for that project. In each individual file it is important that a
copy of any form that has been initiated be kept, as well as diary notes about any
activity such as offers of replacement housing, and other documents that would
give a complete record of the activities on that displacee. The general project file
for the project may have information that pertains to the project in a general way
such as environmental reports, residential or business referrals and current
information concerning security deposits, interest rates, utilities, rentals,
damages, leases, closing costs, etc.
In addition to a file being maintained for each displacee, information located in
each file must also be currently maintained on the relocation computer screen.
The information maintained on the Relocation computer screen should be
updated by the Division Right of Way Office on a daily basis.
It should be noted in each file that any and all notices of eligibility and payments
made to the property owner or occupant under these regulations shall be
personally served or sent by certified first class mail return receipt requested.
Each notice shall be written in plain understandable language. Persons who are
329
unable to read and understand the notice must be provided with appropriate
translation and counseling. Each notice shall indicate the name and telephone
number of a person who may be contacted for answers to questions or obtain
help.
If a displacee voluntarily moves to a non-DSS dwelling, he cannot claim a
replacement housing payment; however a moving payment is still eligible and
should be paid promptly after the move. A memo (statement) will be written to the
file explaining the circumstances.
15.20 REVIEW PROCEDURES
Should any person be dissatisfied with a determination as to his/her eligibility for
a payment or the amount of the payment offered which he believes he should
receive, he should request a review of his claim to the Manager of Right of Way.
If the displacee desires, a Review Request, FRM15-Y is available which will help
him in providing a written review. The Manager of Right of Way will provide a
prompt review as appropriate for the displacee with the requirements of
applicable law and these regulations:
A. Actions which may be appealed. A person may file a written appeal with
the Department in any case in which the person believes that the
Department has failed to properly determine the person’s eligibility for or
the amount of a payment required or a relocation payment required under
these regulations. The Department shall consider a written review
regardless of the form.
B. Time limit for initiating review. The time limit shall be 60 days after the
person receives written notification of the Department’s determination on
the person's eligibility or amount of payment.
C. Right to representation. A person has a right to be represented by legal
counsel or other representative in connection with his or her review, but
solely at the person's own expense.
D. Review of files by person requesting review. The Department shall permit a
person to inspect and copy all materials pertinent to his or her review,
except materials that are classified as confidential by the Department. The
Department may, however, impose reasonable conditions on the person's
right to inspect, consistent with applicable laws. Material may not be
removed from the building and a reasonable fee will be charged for copies.
E. Scope of review. In deciding upon a review, the Department shall
consider all pertinent justification and other materials submitted by the
person, and all other available information that is needed to ensure a fair
330
and full review of the claim.
F. Determination and notification after review. Promptly after receipt of all
information submitted by a person in support of his or her review, the
Department shall make a written determination on the review, including an
explanation of the basis on which the decision was made and furnish the
person a copy. If the full relief requested is not granted, the Department
shall advise the person of his or her right to seek judicial review. Under G.S.
133-17, as interpreted by the decision of the North Carolina Court of
Appeals in Henry vs. Department of Transportation, 44 N.C. App. 170.260
S.E. 2d 438 (1979), the determination of relocation assistance payments is
absolutely and solely in the discretion of the official of the agency making it,
is conclusive and is not subject to judicial review. Under common law, such
a determination is subject to judicial review only upon a showing of
capricious, unreasonable or arbitrary action, or disregard of law, 1 N.C.
Index 3D, Administrative Law Section 8.
G. Department official to review claim. The Department official conducting the
review shall be the Manager of Right of Way, as assisted by the Relocation
Coordinator. The Manager will not have been directly involved in the action
being reviewed.
15.21 SUBMITTING CLAIMS FOR RELOCATION PAYMENTS
A. Documentation
Any claim for relocation payment shall be supported by such
documentation as may be reasonably required to support expenses
incurred such as bills or certified prices, appraisals or other evidence of
such expenses. A displaced person must be provided reasonable
assistance necessary to complete and file any required claim for
payment. The claimant will sign the FRM15-K certifying to the stated
payments and each claim submitted to the Raleigh office shall include
the Federal Tax Identification Form (FRM4-M) and the appropriate
payment checklist, FRM15-Z or FRM 15-AA.
B. Expeditious Payment
The Department shall review claims in an expeditious manner. The
Division Right of Way Office shall be promptly notified as to any
additional documentation that is required to support the claim.
Payment for a claim shall be made as soon as feasible following
receipt of sufficient claim documentation.
331
C. Advance Payments
If a person demonstrates the need for an advance relocation payment in
order to avoid an undue hardship or to reduce such hardship, the
Division Right of Way Agent shall request in writing that the payment be
secured by the Raleigh office. This request shall include sufficient
documentation to justify the payment such as FRM15-G/FRM15-H and
FRM15-A/FRM15-B, sales contracts, closing statements, invoices, etc.
The Division Right of Way Agent should satisfy himself as to the validity
of the request as a true hardship situation and not as a means to
expedite the claim. Once the advance payment is personally delivered
to the payee, the check stub will be signed by the payee and the Agent.
A copy of the check stub will accompany the claim when it is submitted
to the Raleigh Central office. It should be understood that the displacee
must be in position to occupy the dwelling on or before the date the
check is delivered. It is necessary to secure execution of the Occupancy
Affidavit, FRM15-EEE, in circumstances when occupancy must be
postponed (such as to allow for repairs/updates to the replacement
dwelling).
D. Time for Filing
All claims for relocation payments shall be filed with the Department
within 18 months from the date of displacement for tenants and for
owners, the date of displacement or the date of the final payment for
the acquisition of the real property, whichever is later. This time
period may be waived by the Department for good cause.
E. Multiple Occupants of One Displacement Dwelling
If two or more occupants of the displacement dwelling move to
separate displacement dwellings each occupant is entitled to a
reasonable prorata share as determined by the Department of any
relocation payments that would have been made if the occupants
moved together to a comparable replacement dwelling. However, if
the Department determines that two or more occupants maintain
separate households within the same dwelling, such occupants have
separate entitlements to relocation payments. To qualify as separate
households, all rooms must be used privately, with no sharing of
common rooms, especially kitchens.
F. Deduction from Relocation Payments
The Department will deduct the amount of any advance relocation
payment from the relocation payments to which a displaced person is
otherwise entitled.
However, when acquiring real property, the Department can no longer
deduct from relocation payments any rent that the displaced person
owes to the Department. The Department shall not withhold any part
332
of a relocation payment to a displaced person to satisfy any obligation
to any creditor.
G. Notice of Denial of Claim
If the Department disapproves all or part of a payment claimed or
refuses to consider the claim on its merits because of untimely filing or
other grounds, it shall promptly notify the claimant in writing of its
determination, the basis for the determination and the procedure for a
review of the determination.
15.22 PROCEDURE FOR DETERMINING DSS
As has been previously defined, it is necessary that all displaced persons
expecting to receive the replacement housing or rent supplement payment must
occupy a housing unit that meets the decent, safe and sanitary housing
requirements.
In working a project, a contact should be made with the local municipality to
obtain applicable building and housing maintenance codes. These should be
compared with the requirements set forth for decent, safe and sanitary housing.
Should the local requirements be less strict than contained in the defined decent,
safe and sanitary requirements, then the decent, safe and sanitary requirements
will take precedence over the local codes.
Proper inspection is required of all proposed replacement housing. It is
suggested in making the first several inspections that the services of the local
building inspector be solicited to assist in the inspections. The Agent should point
out any deficiencies and note them on the DSS Inspection Report, FRM15-J. A
copy of this report should be given to the displaced person so that he will know
the outcome of the inspection and should deficiencies exist, be in a position to
have the owner correct them. Also, the name of the local housing inspector, if
one is used, should be included on the file copy indicating his collaboration in the
inspection.
It should be impressed upon the displaced person that should he fail to request
the inspection of the property he proposes to occupy, he will forfeit his right to a
supplemental payment should it not meet the decent, safe and sanitary
requirements or cannot be rehabilitated to meet the requirements.
15.23 MOVING PAYMENTS AND RELATED EXPENSES
A. RESIDENTIAL -- ACTUAL COST
Any displaced owner or tenant occupant of a dwelling who qualifies as a
333
displaced person is entitled to reimbursement of his or her actual moving and
related expenses as the Department determines to be reasonable and
necessary. The displacee may move by either:
1. A commercial mover based on the receipted bills for costs incurred not to
exceed the lower of two (2) estimates obtained by the Department. In extreme
circumstances, should two (2)estimates or bids be difficult to obtain, one (1)
qualified estimate or bid would be permissible after prior approval has been
obtained from the Raleigh Office. (FRM15-Q, Exhibit 15-Q).
OR
2. The displacee may perform a self-move based on the actual expenses
incurred up to the lower commercial estimate. (FRM15-Q). In extreme
circumstances, should two (2)estimates or bids be difficult to obtain, one (1)
qualified estimate or bid would be permissible after prior approval has been
obtained from the Raleigh Office. The displacee must maintain adequate records.
See FRM15-C (Exhibit 15-C). Labor and equipment should be charged at the
actual rates paid by the displacee, but not to exceed the rate charged by local
moving firms. Should the displacee provide his family labor (or any unskilled
labor) in the moving process, the payment should be based on local labor rates
for unskilled packers and movers.
Eligible expenses for actual cost residential moves include:
-
Transportation of the displaced persons and their personal property.
Transportation costs for a distance beyond 50 miles are not eligible,
unless the State determines that relocation beyond 50 miles is justified;
-
packing, crating and unpacking and uncrating of the personal property;
-
disconnecting, dismantling, removing, reassembling and reinstalling
relocated household appliances and other personal property (such as
telephones, computers, cable TV, satellite dishes, pool tables, tuning of
pianos, etc.). Charges by a utility company are limited to those utilities at
the subject property, and are only for account start-up or changeover
fees. Excluded are utilities such as water/sewer/gas/electric lines,
different fuel sources than at the subject, tap-on fees, building permits,
and any costs associated with bringing utilities to the dwelling;
-
For the owner of a mobile home considered to be personalty, the cost to
have it disconnected from utilities, moved, set up, anchored, and
reconnected to utilities at the edge of the mobile home ( but not eligible
for the cost to install or bring utilities to the edge of the mobile home).
The cost for mobile home move-off and move-on permits and for final
inspections of utility hookups at the unit are included. The cost to remove
334
and reattach any appurtenances on the mobile home (such as skirting,
decks, steps, porches, awnings) is included. The reasonable cost of
repairs and/or modifications so that a mobile home can be moved and/or
made Decent, Safe, and Sanitary are included.
-
A mobile home that is currently being used only as a storage unit will be
handled as a non-residential miscellaneous move, with no utility
reconnection fees allowed.
-
storage of personal property not to exceed 12 months unless the
Department determines that a longer period is necessary; cost of
storage on real property already owned or leased by the displaced
person is ineligible for reimbursement. The Division Right of Way Agent
may grant any necessary period of time for storage of personal property
if the situation is warranted, not to exceed 12 months. See FRM15-JJ;
-
insurance for the replacement value of the property in
connection with the move and necessary storage;
-
the replacement value of property lost, stolen or damaged in the process
of moving (not through the fault or the negligence of the displaced
person, his agent or employees) where insurance covering such loss,
theft or damage is not
reasonably available;
-
The Department will generally not participate in more than one move of a
displaced person; however, where it is known to be in the public interest,
the State Agent may give prior approval to more than one move;
-
The Department may participate in a payment for relocating personal
property of a displacee that is moved onto remaining or other lands
owned by the displaced person or his landlord;
-
The actual reasonable cost of temporary lodging when the Department
determines such costs are required because of unforeseen
circumstances or the practical necessities of the moving operation.
Reimbursement of such expenses will be allowed only for actual cost
moves and is to be used only for short periods of time - usually a few
days but up to a maximum of 30 days. The Division Right of Way Agent
must evaluate each situation individually to determine the amount of time
in each case and give approval of the displacee eligibility for this payment
prior to the displacee relocating from the involved premises as based on
the following circumstances:
(1) temporary lodging reimbursement will be considered for those displacees
335
who have to vacate the premises in order to meet the project letting schedule.
Displacees categorized in certain other classifications would be eligible for
temporary lodging regardless of the project letting schedule. Examples are: (a)
residential owner-occupants of mobile homes that were considered personality;
and (b) residential tenant-occupants of conventional housing who relocate with
the retained dwelling when it is moved from the acquired premises. This payment
is not to be utilized as a method of convenience for the displacee, but only due to
necessity.
(2) if a comparable replacement home was offered to the displacee during
his ninety-day vacating period, the Division Right of Way Agent should not give
approval unless there are extenuating circumstances subsequent to consultation
with the Raleigh office ; and
(3) if approval is given, the Division Right of Way Agent should monitor the
progress the displacee is making toward relocating to his permanent residence.
In all cases, the Division Right of Way Agent must justify approval in writing.
Claims for lodging must be supported with actual receipts. The daily allowance
for lodging will be limited to the State's travel policy. No meal reimbursement is
allowed. Should estimated motel charges equal or exceed a month's rent of other
commercial temporary lodging, then the month's rent could be considered for
payment;
-
Other moving related expenses that are not listed as ineligibles the
Department determines to be reasonable and necessary.
B. RESIDENTIAL – FIXED RATE
Any person displaced from a dwelling or seasonal residence is entitled to receive
a fixed payment rather than a payment for actual moving and related expenses,
except that a person that has minimal possessions and occupies a dormitory
style room, or a person whose residential move is performed by an agency at no
cost to the person, shall be limited to $100.
Actual and reasonable storage expenses and lodging can be reimbursed
under this method of payment based upon the Division Right of Way Agent’s
written approval and justification that such payment will be in the best interest
of the displacee and the Department.
UNFURNISHED UNITS
1 Room
$ 500.00
2 Rooms $700.00
3 Rooms $900.00
4 Rooms $1,100.00
5 Rooms $1,300.00
6 Rooms $1,500.00
336
Schedule Revised 6-1-05
7 Rooms $1,650.00
8 Rooms $1,800.00
Each additional room 150.00
FURNISHED UNITS
1st Room $350.00
Each additional room 50.00
The preceding schedules exclude unfurnished or unused rooms, halls, baths,
attics, porches, garages, dressing rooms and utility rooms. However, should a
displacee have sufficient storage in carports, garages, enclosed porches, attics,
sheds or utility rooms, the Agent may count one additional room for each of these
areas.
Discretion should be used when counting combination rooms-living/dining,
kitchen/dining, etc. If, in the opinion of the Agent enough personality is in these
combination rooms, then two rooms may be counted provided that there is a
minimum of 200 square feet. Otherwise, only one room may be counted.
Basements having 200 square feet and not partitioned will count as one room if
utilized as living or storage area. For each additional 200 square feet, another
room may be counted.
NOTE: By using this Fixed Rate method, the displaced person may move by
any means available and no further documentation is required.
C. NON-RESIDENTIAL – ACTUAL COST
Any business, non-profit organization or farm operation which qualifies as a
displaced person is entitled to payment for such actual moving and related
expenses as the Department determines to be reasonable and necessary. The
displacee may move by either:
1. a commercial mover, based on the receipted bills for costs incurred not
to exceed the lower of two (2) estimates obtained by the Department FRM15-Q.
In extreme circumstances should two (2) estimates or bids be difficult to obtain,
one (1) qualified estimate or bid would be permissible after prior approval has
been obtained from the Raleigh Office. For signs and appropriate miscellaneous
moves, (FRM15-XX) can be used as your bid form in lieu of FRM15-Q.
OR
337
2. a self-move based on the actual expenses incurred up to the lower
commercial bid (FRM 15-Q). In extreme circumstances should two (2) bids be
difficult to obtain, one (1) qualified bid would be permissible after prior approval
has been obtained from the Raleigh Office. The displacee must maintain
adequate records. Labor and equipment should be charged at the actual rates
paid by the displacee but not to exceed the rate charged by local moving firms.
See FRM15-C,
Eligible expenses for actual cost non-residential moves include:
-
Transportation of personal property. Transportation costs for a
distance beyond 50 miles are not eligible, unless the Department
determines that the relocation beyond 50 miles is justified;
-
Packing, crating, unpacking, and uncrating of the personal
property;
-
Disconnecting, dismounting, removing, reassembling, and reinstalling
relocated machinery, equipment, other personal property, and
substitute personal property.
-
This includes connection to utilities available within the building and
account change charges by utility companies. It also includes
modification to the personal property (including those mandated by
Code or ordinance) necessary to adapt it to the replacement
structure, the replacement site or the utilities at the replacement site
and modifications necessary to adapt the utilities at the replacement
site to the personal property. Expenses for providing utilities available
from the right of way on the same parcel to the building or
improvement are also included;
-
Storage of personal property not to exceed 12 months, unless the
Department determines that a longer period is necessary. Cost of
storage on real property already owned or leased by the displaced
person is ineligible for reimbursement. The Division Right of Way
may grant the necessary period of time for storage of personal
property if the situation is warranted, not to exeed.12 months. See
FRM15-JJ;
-
Insurance for the replacement value of the personal property in
connection with the move and necessary storage;
-
Any recurring licenses, permits or certifications required of the
displaced person at the replacement location, however, the payment
338
will be based on the remaining useful life of the existing licenses,
permits or certifications (pro-rated up to one year).
-
One-time permits or fees required because of the move, such as
building permits, site plans, architects fees, survey costs, county
inspection fees, etc. (ref. CFR 24.301(g)7);
-
The replacement value of property lost, stolen or damaged in the
process of moving, (not through the fault or the negligence of the
displaced person or his or her agent or employees)where insurance
coverage covering such loss, theft or damage is not reasonably
available;
-
Professional services that are actual, reasonable and necessary for
planning the move of the personal property, moving the personal
property and installing the relocated personal property at the
replacement location. These professional services may include plant
layout and design to place personal property within an existing
structure, but not for a new structure constructed specifically for the
displaced business;
-
Re-lettering signs and replacing stationary on hand at the time of the
displacement that is made obsolete as a result of the move;
-
Actual direct loss of tangible personal property incurred as a result of
moving or discontinuing the business, non-profit organization or farm
operation (to include on-premise signs and miscellaneous items). See
FRM15-F, Exhibit 15-F. This type payment is a substitute for a
payment of moving personal property which is not moved but may be
disposed of by sale or trade-in. The payment shall consist of the
lesser of:
1. The Cost to Move the Item.
Estimated costs of moving and reinstalling the item, but not to
include any allowance for storage or reconnection costs for items
which were in storage or not being used. If the business, nonprofit organization or farm operation is discontinued, estimated
moving cost shall not exceed 50miles. The estimated moving cost
will be based on the lower of two acceptable bids obtained by the
Department. In extreme circumstances, should two bids be
difficult to obtain, one bid would be permissible after prior
approval has been obtained from the Raleigh Office.
OR
339
A. IF THE ITEM IS NOT REPLACED AT THE NEW SITE: the
Fair Market Value In Place for Continued Use LESS the
Proceeds From the Sale.
To be eligible for the payment the claimant must make a good
faith effort to sell the personality, unless the Division Right of
Way Agent determines such effort is not necessary. When
payment for property loss is claimed for goods held for sale, the
fair market value shall be based on costs of goods to the
business, and not to the potential selling price.
OR
B. IF THE ITEM IS REPLACED AT THE NEW SITE: The
Replacement Cost of Substitute Personal Property LESS the
Proceeds From the Sale/Trade-in Value.
The claimant must make a good faith effort to sell the
personality unless waived by the Division Right of Way Agent.
Replacement cost of the substitute item shall include
installation expenses.
PLUS
The Cost of the Sale. (Unless it is waived)
-
Actual direct loss for advertising signs (off-premise). See
FRM15-F. The amount of a payment for direct loss of an
advertising sign (off-premise) which is personal property
shall be the lesser of:
1. The depreciated reproduction cost of the sign, as determined
by the Department, less the proceeds from its sale; or
2. The estimated cost of moving the sign, but with no
allowance for storage.
-
Searching for a replacement location. The displaced business or farm
operation is entitled to reimbursement for actual expenses not to exceed
$2,500 as the Department determines to be reasonable which are
incurred in searching for a replacement location including:
1. Transportation;
2. meals and lodging while away from home;
340
3. time spent searching may include hours spent in obtaining permits,
attending zoning hearings, and negotiating the purchase or lease of a
replacement site;
4. time spent searching is based on an hourly rate set by NCDOT ($25
per hr. as of 12-31-05);
5. fees paid to real estate agency or brokers to locate a replacement site,
excluding any fees or commissions related to the purchase of such site.
Documentation of these expenses will be necessary on FRM15-SS.
-
For significant commercial or industrial moves where the actual moving
expenses based upon bids may exceed $20,000, it may be necessary that
certain employees of the displaced business would be required to assist
the commercial mover to relocate and reinstall the involved personality.
The labor costs associated with employees could be reimbursed under the
actual cost method of moving, if prior approval is obtained from the
Raleigh Central office. The following procedure would apply in this
situation:
1. After consulting with the displacee and the commercial mover, the Division
Right of Way Agent should determine the number and names of the essential
employees needed from the displaced business to assist in the moving process.
The remaining employees of the business would not be considered. The Division
Right of Way Agent should satisfy himself the essential employees are necessary
and this payment is not being utilized as another method to pay down time.
2. Once the Raleigh Central office has approved this reimbursement, the
displaced business must tabulate each approved employee's daily work hours as
assigned to the relocation process. The commercial mover must verify each
approved employee's time. FRM15-C, Exhibit 15-C, or specific employee time
sheets can be utilized to document such labor expenses.
3. Depending on the circumstances and cost of this business move, the Raleigh
Central office may require the Division Right of Way office to monitor the moving
progress in confirming the accuracy of actual labor expenses.
-
one-time impact fees or assessments for anticipated heavy utility
usage;
-
professional services performed prior to the purchase or lease of a
replacement site to determine its suitability for the displaced person’s
business operation, including soil testing, and feasibility or marketing
studies (but not including any commission or fees directly related to
the purchase or lease);
341
-
low value/high bulk – when the personal property to be moved is of
low value and high bulk, and the cost of moving the property would
be disproportionately high to its value, the allowable moving cost
shall not exceed the lesser of: (a) the amount which would be
received if the property were sold at the site, or (b) the replacement
cost of the same quantity delivered to the new business location;
-other moving - related expenses that are not listed as ineligibles the
State determines to be reasonable and necessary.
D. NON-RESIDENTIAL – SELF MOVE
1. If the displacee elects to take full responsibility for the move of the business,
non-profit organization or farm operation, the Department may make a payment
for the displacee's moving expenses in the amount not to exceed the lower of two
acceptable bids obtained by the Department on FRM15-Q, Exhibit 15-Q. In
extreme circumstances, should two bids be difficult to obtain, one qualified bid
would be permissible after prior approval has been obtained from the Raleigh
Office. An estimate not to exceed $6,000.00 maybe prepared by an Agent and
approved by the Division Right of Way Agent (See FRM15-R, Approval of
Negotiated Move, Exhibit 15-R)in lieu of procuring bids from local commercial
movers.
2. For uncomplicated claims of $1,000.00 or less, an experienced Agent (Agent I
classification) can prepare and approve an estimate to determine the displacee's
eligible moving cost payment in lieu of procuring bids from local commercial
movers. Use FRM15-R, Exhibit 15-R, for this purpose.
3. Incidental moving costs such as searching fee, insurance, direct loss of
tangible personal property, actual and reasonable storage expenses can also be
paid under this method of payment. Other personalty moving costs not covered
within the bids may be added at their actual, reasonable cost (examples include:
moving and reinstalling existing telephone systems, computers, and items
mistakenly left out of bids). Separate bids for parts of the move are acceptable
(for example, for specialized items not normally moved by the main mover).
E. INELIGIBLE MOVING AND RELATED EXPENSES
A displaced person is not entitled to payment for:
1. The cost of moving any structure or other real property improvement in which
the displaced person reserved ownership (retention);
2. Interest on a loan to cover moving expenses; or
342
3. Loss of goodwill; or
4. Loss of profits; or
5. Loss of trained employees; or
6. Any additional operating expenses of a business, farm or nonprofit
organization incurred because of operating in a new location, except as provided
in Section G. 1. j.; or
7. Personal injury; or
8. Any legal fee or other cost for preparing a claim for a relocation payment or for
representing the claimant before the Department; or
9. expenses for searching for a replacement dwelling; or
10. Physical changes to the real property at the replacement location of a
business, farm or non-profit organization, except as provided in C. (eligible
expenses) and G. 1. a. through m.(re-establishment); or
11. Costs for storage of personal property on real property already owned or
leased by the displaced person.
F. NOTIFICATIONS AND INSPECTIONS
The Department shall inform the displaced person in writing of the
requirements necessary to claim payments as soon as possible after the
initiation of negotiation.
1. The displaced person must provide the Department advance written notice of
the approximate date of the start of the move or disposition of the personal
property and a list of the items to be moved. However, the Department may
waive this notice requirement after documenting its file accordingly.
2. The displaced person must permit the Department to make reasonable and
timely inspections of the personal property at both the displacement and the
replacement sites and to monitor the move.
3. Transfer of ownership.
Upon request and in accordance with applicable law,
the claimant shall transfer to the Department ownership of any personal property
that has not been moved, sold or traded. (Contaminated or hazardous waste
material must be excluded). See FRM15-BBB (Exhibit 15-BBB)
G. RE-ESTABLISHMENT EXPENSES
343
In addition to payments available under Sections "C" and "D", a small business,
farm or non-profit organization may be eligible to receive a payment, not to
exceed $10,000.00 for expenses actually incurred in relocating and reestablishing such small business, farm or non-profit organization at a
replacement site. Use FRM15-X, (Exhibit 15-X).
1. Eligible Reestablishment expenses: Re-establishment expenses must be
actual, reasonable and necessary, as determined by the Department. They
may include, but are not limited to the following:
a. Repairs or improvements to the replacement real property as required by
Federal, State or local law, code or ordinance. This includes the necessary costs
of well and/or septic system when public water and sewer are not available at the
RW of the parcel; lot clearing and grading, etc.
b. Modifications to the replacement property to accommodate the business
operation or make replacement structures suitable for conducting the business.
Example: improving or expanding the parking lot to meet Code or ordinance
requirements.
c. Construction and installation costs for exterior signing to advertise the
business.
d. Redecoration or replacement of soiled or worn surfaces at the replacement
site, such as paint, paneling or carpeting.
e. Advertisement of replacement location.
f. Estimated increased costs of operation during the first 2years at the
replacement site for such items as: lease or rental charges; personal or real
property taxes; insurance premiums; and utility charges, excluding impact fees.
g. Other items that the Department considers essential to the re-establishment of
the business.
h. In no event shall total cost payable under this section exceed the $10,000.00
maximum. The Division Right of Way Agent would need to categorize eligible
expense reimbursement and stipulate such expenses were necessary to
reestablish the business (See FRM15-X,Exhibit 15-X).
2. INELIGIBLE Reestablishment expenses:
The following is a nonexclusive
listing of re-establishment expenditures not considered to be reasonable,
necessary or otherwise eligible:
a. Purchase of capital assets, such as office furniture, filing cabinets, machinery
or trade fixtures.
344
b. Purchase of manufacturing materials, production supplies, product inventory
or other items used in the normal course of the business operation.
c. Interest on money borrowed to make the move or purchase the replacement
property.
d. Payment to a part-time business in the home which does not contribute
materially to the household income (See definition of “Material Income”).
3. Specific Procedures: To implement the Reestablishment payment
certain procedures shall be followed.
a. Initial contact should be made in person with those landlords who have
personalty located within the right of way that must be moved. Initial contact can
be made by certified mail for those landlords that do not have personalty in the
right of way (see FRM15-FFF).
b. All displaced small businesses, farm and non-profit organizations including
landlords, must provide certification with copies of tax returns that the income
they receive is being reported for tax purposes. If the income is not being
reported on their tax returns we will not consider the activity a bonafide business,
because they are not operating in accordance with State and Federal
requirements and therefore not eligible for re-establishment payments. If the
displaced activity is unquestionably a small business, farm, or non-profit
organization; the Division Right of Way Agent may waive the income tax
certification, except for landlords.
c. All business activities must have proper licenses and permits and be
conducted in accordance with State and local codes and/or zoning requirements
in order to be considered as a business eligible for reestablishment payments.
Any questionable business activity should be investigated to insure it meets the
necessary criteria to operate at the existing location.
H. BUSINESS FIXED PAYMENT
1. Any displaced business (except a landlord or an Outdoor Advertising
Display) is eligible for a fixed payment, in lieu of a payment for actual
reasonable and related moving expenses and actual reasonable reestablishment expenses. This payment, except for payment to a non-profit
organization, would be equal to its average annual net earnings, as
computed under paragraph 5 of this section, but not less than $1,000.00 nor
more than $20,000.00 if the Department determines that:
a. The business cannot be relocated without a substantial loss of its existing
patronage (clientele or net earnings). A business is assumed to meet this test
unless the Department demonstrates that it will not suffer a substantial loss of its
345
existing patronage; and
b. The business is not part of a commercial enterprise having more than three (3)
other entities, which are not being acquired by the Department, and which are
under the same ownership and engaged in the same or similar business
activities. (For purposes of these procedures a remaining business facility that
did not contribute materially to the income of the displaced person during the 2
taxable years prior to displacement shall not be considered "another
establishment"; and
c. The business contributed materially to the income of the displaced person
during the 2 taxable years prior to displacement. However, the Department may
waive this test for good cause.
d. The business owns or rents personal property which must be moved due to
displacement and for which an expense would be incurred, and the business
vacates or relocates from its displacement site.
e. The business is not operated at a displacement dwelling or site solely for the
purpose of renting such dwelling or site to others.
2. In determining whether two or more displaced legal entities constitute a single
business which is entitled to only one fixed payment, all pertinent factors shall
be considered, including the extent to which:
a. The same premises and equipment are shared;
b. Substantially identical or interrelated business functions are carried out and
business and financial affairs are commingled;
c. The entities are held out to the public, and to those customarily dealing with
them, as one business;
d. The same person, or closely related persons own, control, or manage the
affairs of the entities.
3. Any displaced farm operation may choose a fixed payment in lieu of a
payment for actual moving and related expenses and actual reasonable reestablishment expenses, in an amount equal to its average annual net earnings,
but not less than $1,000.00 nor more than $20,000.00. In the case of a partial
acquisition of land which was a farm operation before the acquisition, the fixed
payment shall be made only if the Department determines that:
a. anthem acquisition of part of the land caused the operator to be displaced
from the farm operation on the remaining land; or
346
b. The partial acquisition caused a substantial change in the nature of the farm
operation.
4. Any displaced non-profit organization may choose a fixed payment of
$1,000.00 to $20,000.00 in lieu of the payments for actual moving and related
expenses and actual reasonable reestablishment expenses if the Department
determines that:
a. It cannot be relocated without substantial loss of existing patronage
(clientele or net earnings). A non-profit organization is assumed to meet this test,
unless the Department demonstrates otherwise; and
b. Any payment in excess of $1,000.00 must be supported with financial
statements for the two 12-month periods prior to the acquisition. The amount to
be used for the payment is the average of 2 years annual gross revenues less
administrative expenses. Gross revenues may include membership fees, class
fees, cash donations, tithes, and receipts from sales or other forms of fund
collection that enables the non-profit organization to operate. Administrative
expenses are those for administrative support such as rent, utilities, salaries,
advertising and other like items as well as fund raising expenses. Operating
expenses for carrying out the purposes of the non-profit organization are not
included in administrative expenses. The monetary receipts and expense
amounts may be verified with certified financial statements or financial
documents required by public agencies.
5. The average annual net earnings of a business or farm operation are one
half of its net earnings before Federal, State and local income taxes during the
two taxable years immediately prior to the taxable year in which it was displaced.
If the business or farm was not in operation for the full two taxable years prior to
displacement, net earnings shall be based on the actual period of operation at
the displacement site prior to displacement projected to an annual rate. If these
two taxable years are not representative for the business because the proposed
construction has caused an outflow of residents and a reduction in net income, it
is possible to use other consecutive tax years if prior approval is received from
the Raleigh Office. Net earnings include any compensation obtained from the
business or farm operation by its principal owner, the principal owner's spouse
and principal owner's dependents. This compensation would be identified as
income received from the business or wages received from the business and
reported as such for tax purposes. The displaced person shall furnish the
Department proof of net earnings through income tax returns, certified financial
statements or other reasonable evidence which the Department determines is
satisfactory.
6. A fixed payment may be approved for a business that relocates onto the
remaining property provided there are no similar replacement sites available, and
the business can show support that they will lose existing patronage during
347
relocation due to being shut down, or having a loss of access for a period of time
due to the project.
7. The determination for this payment will be made by the Relocation
Coordinator from information furnished by the Division RW Agent. Adequate
information should be compiled and submitted to reach a definite decision for
each business, farm or non-profit organization. Should there be any questions
regarding the qualification of any business, farm or non-profit organization, the
matter should be discussed with the Raleigh office. Tax returns should be
submitted to the Relocation Coordinator in Raleigh for verification, along with an
Frm15-S, an Frm15-T, and a letter to the Relocation Coordinator which outlines
the concerns and intentions of the business that would make them eligible for the
Business Fixed Payment. These items must be submitted for approval prior to
the offer of a Business Fixed Payment being made to the displacee. Once the
Business Fixed payment is approved by the Relocation Coordinator, the
Relocation Coordinator will sign the Frm15-S as approved, and the Right of Way
Agent can then make the offer for the Business Fixed Payment to the displaced
business.
I. PAYMENT FOR MOVING BIDS – VERIFICATION OF SERVICES
The Department will pay reasonable expenses incurred in obtaining bids for
moving expenses not to exceed two bids per move. (See FRM15-Q,). In case
a third bid is deemed advisable or necessary, prior approval must be obtained
from the Relocation Coordinator. When submitting a bill for payment where a
bid has been made, complete and submit FRM15-N. Also, send a copy of the
bid and a copy of the bill from the bidder, and a copy of the bill from the bidder.
The bidder must also complete a Vendor Registration Form (Frm4-M) with
their proper mailing address and business tax identification number.
J. PAYMENT TO THIRD PARTY
By written arrangement between the Department, the displaced person, and the
mover, the displacee may present an unpaid moving bill to the Department for
direct payment. (See FRM15-ii).
K. HARDSHIP CASE PAYMENT
In certain instances, it may be necessary to request the replacement housing
payment in advance of the move in order to eliminate a hardship being imposed
on the displacee. In making this request, the same written request procedure and
documentation will be required as stated in Section on Advance Payments.
Once the payment check or checks are received they should be delivered once
the criteria for each payment have been met. If a tenant is involved and it is in the
best interest of the Department for the tenant to move prior to right of way
348
acquisition, the Division Right of Way Agent should denote this fact in his
recommendation for payment.
L. OWNER RETENTION
When an owner retains his dwelling, the cost of moving it onto remainder or
replacement land is not eligible for reimbursement. However, a moving
payment to remove personalty from the house is eligible.
M. VERIFICATION OF MOVE
Immediately upon receipt of claim for payment, the Agent will verify the move
and complete all information needed on the form. It is necessary that the
location of the move be verified unless the move was made beyond the 50-mile
limit or out of state. An inspection of the location from which the displacee
moved should also be made to see that all personalty has been moved.
N. PERSONAL PROPERTY LOCATED OUTSIDE THE ACQUISITION
Where the acquisition of real property used for an eligible business, non-profit
organization or farm causes a person to vacate a dwelling or other dissimilar
real property not acquired, the additional expenses of moving such personal
property may be eligible for appropriate moving payments. If there is personal
property located outside the acquisition clearly associated with the displaced
business, non-profit organization, farm operation or dwelling, costs to relocate
or rearrange this personality will be added to the total moving expenses.
O. SUBMISSION OF CLAIM TO RALEIGH
Following verification of move from the original to the new location, the claim can
then be submitted to Raleigh requesting payment of the moving cost according to
the method selected by the displaced person. It is imperative that copies of
correspondence and forms pertaining to the move be submitted at this time with
the payment request. As the diary will be submitted at this time, it will be
necessary for a new diary sheet to be started to maintain a record of the contacts
with the displaced person concerning future housing payments, if any, to which
he or she may be entitled. (See FRM15-L).
15.24 REPLACEMENT HOUSING PAYMENTS
A. General Information
1. The replacement housing payment is the amount, when added to the amount
349
for which the Department acquired the dwelling, equals the cost which the owner
is required to pay for a decent, safe and sanitary dwelling OR the amount
determined by the Department as necessary to purchase a comparable dwelling,
whichever is less.
2. It is the Department's responsibility to make available a comparable
replacement dwelling unit and relocate the displaced person to his original
ownership status if this is his or her desire. If the alternate tenancy status is
desired by the displacee, the Department will be expected to make a reasonable
effort to accomplish the request. If the optional housing is available, the rent
supplement, if any, will be based on the specific option.
3. When a single family dwelling is owned by several persons, and occupied by
only some of the owners, the replacement housing payment will be the difference
between the total acquisition costs of the acquired dwelling and the amount
determined by the Department as necessary to purchase a comparable dwelling.
The Department is not required to provide persons owning only a fractional
interest in the displacement dwelling a greater level of assistance to purchase a
replacement dwelling than the Department would be required to provide such
persons if they owned fee simple title to the displacement dwelling. If such
assistance is not sufficient to buy a replacement dwelling, the Department may
provide additional purchase assistance or rental assistance through Last Resort
Housing, based on the approval of the Raleigh office.
If the owner-occupant displacees do not purchase, they will be entitled to receive
a rent supplement payment if they rent and occupy a decent, safe and sanitary
dwelling in accordance with the rent supplement program. However, the
displacee cannot receive a rent supplement payment in an amount that exceeds
the Replacement Housing Payment (RHP) amount he would have been eligible
to receive as an owner-occupant.
An owner occupant owning only a partial interest must reinvest his share of
the acquisition costs plus the computed supplemental payment in order to
receive the maximum payment.
If this procedure creates an undue hardship on the occupants, the full facts
along with a recommended solution should be submitted to the Raleigh Office
for a determination.
B. Purchase of Replacement Property
For the purpose of purchase and occupancy, the displaced person
“purchases" a dwelling when he/she:
a. Purchases a dwelling; or
350
b. Purchases and rehabilitates a substandard dwelling; (When the replacement
dwelling selected by the displacee has decent, safe and sanitary deficiencies, the
cost to correct deficiencies is eligible to the extent that the purchase price of the
home site including the cost of the replacement dwelling, and the cost of
correcting the deficiencies do not exceed the value of the comparable
replacement property); or
c.
Relocates a dwelling which he or she owns or purchases; or
d. Constructs a dwelling on a site he or she owns or purchases; or
e. Contracts for the purchase or construction of a dwelling on a site provided by
a builder or on a site the person owns or purchases; or
f. Currently owns a previously purchased dwelling and site, valuation of which
shall be on the basis of current fair market value.
15.25 EVALUATIONS
A. Guidelines for Computing Supplement Payments
1. Once the initial contacts have been made, the Agent should begin to
familiarize himself with the subject properties and the real estate market.
2. When the copy of the approved appraisal is turned over to the Agent,
he/she will be in a position to extract the information needed from the
appraisal. He/she shall then select the appropriate comparables to be utilized
in the Evaluation report.
Once this is accomplished, the Evaluator’s Report (FRM15-I), along with the
Agent's copy of the appraisal can be given to the Division Right of Way Agent for
his review and approval.
3. Should the workload be such that the Agent will be unable to hold to the
schedule for completion of Evaluations, the Division Right of Way Agent should
notify, in writing, the Area Negotiator and the Raleigh Office so they will know
about the situation and can give any needed assistance.
4. In cases where the number, age or sex of displacees occupying the
subject property will indicate that a larger dwelling is required and more
bedrooms are needed, this should be given consideration in selecting a
comparable.
5. The subject property should be viewed and inspected by the Agent in order
that "first hand" knowledge of the subject will be available for use in selecting a
351
comparable. All comparables should be inspected (in addition to the use of
multiple listing data and/or information from Realtors and owners (i.e., FSBO –
For Sale By Owner).
6. In cases where the approved appraisal has been voided and superseded
by a revised appraisal, the Division Right of Way Agent would be required to
review the revised appraisal to determine if the revision would affect the
original replacement housing payment Evaluation computation. Should the
revision affect the replacement housing payment computation, the Evaluation
would have to be revised accordingly and a revised replacement housing
payment would be offered to the displacee.
B. Determining Cost of Comparable Replacement Dwelling
The upper limit of a replacement housing payment shall be based on the cost of
a representative comparable replacement dwelling.
1. If available, at least three representative comparable replacement dwellings
shall be examined and the payment computed on the basis of the dwelling most
nearly representative of, and equal to or better than, the displacement dwelling.
No adjustment shall be made to the asking price of any dwelling even if
apparently justified by local market data An obviously overpriced dwelling may be
ignored. Use FRM15-J, Exhibit 15-J, and FRM15-W, Exhibit 15-W, to show
pertinent data relative to each comparable.
2. If the site of the comparable replacement dwelling lacks a major exterior
attribute at the displacement dwelling site (e.g., the site is significantly smaller or
does not contain a swimming pool), the value of such attribute shall be
subtracted from the acquisition cost of the displacement dwelling for purposes of
computing the payment (called a carve-out).
3. If an uneconomic remnant remains after a partial taking and the owner of the
remaining property agrees to sell the remainder to the Department, and the
remnant is within the typical lot area, then the residential fair market value of the
remainder will be subtracted from the computed RHP. An uneconomic remnant
situation should be noted in the Evaluation (FRM15-D, Exhibit 15D and FRM15-I,
Exhibit 15-I).
4. If the acquisition of a portion of a typical residential property causes the
displacement of the owner from the dwelling, and the remainder is determined to
be a buildable lot, the Department may offer to purchase the entire property and
if so, the fair market value of the remainder will be added to the acquisition cost
for purposes of computing the replacement housing payment (i.e., use the total
before value). The Division Right of Way Agent will decide if the remaining
property is a buildable lot by reviewing the approved appraisal. If a determination
cannot be made from the appraisal, the Division Right of Way Agent should
352
contact the Area Appraiser for a determination. A statement should be inserted
on the Evaluation indicating that the remaining land is a buildable lot. (FRM15-D,
and FRM15-I).
5. To the extent feasible, comparable replacement dwellings shall be selected
from the neighborhood in which the displacement dwelling was located or, if that
is not possible, nearby or similar neighborhoods where housing costs are
generally the same or higher.
6. If other housing is available (that is comparable, except that it is not decent,
safe and sanitary), the supplementary payment maybe determined by getting an
estimate of the cost to correct the decent, safe and sanitary deficiencies, adding
this amount to the selling price of the replacement housing which is not decent,
safe and sanitary, and comparing this amount with the amount paid the displacee
for his dwelling together with an area of land typical in size for a home site in the
general area. The owner of the non-decent, safe and sanitary house must agree
to correct the deficiencies and quote the sales price with the deficiencies
corrected.
7. If replacement housing is not available, the payment may be determined by
adding the amount paid for the dwelling at the present location, together with an
area of land typical in size for a home site in the general area, and then
deducting this amount from the amount of a private contractor's firm bid of the
replacement cost of a comparable decent, safe and sanitary dwelling to be
located on a comparable home site.
8. There is a second alternative if replacement-housing comparables are
unavailable. The payment will be the difference in the reproduction cost new
value of the dwelling established in the approved appraisal that is added to the
value of an available typical lot; compared to the appraised value of the subject
dwelling together with the appraised value for an area of land typical in size for a
home site in the general area. In order to use this method, the Appraiser must
have confirmed this value in the appraisal report with data secured from local
contractors. If data is omitted in the appraisal, such documentation can be
procured from local builders.
9. Methods utilized in either Item #7 or #8 are less desirable since the
comparable property is hypothetical and does not exist at the date of the
Evaluation. Consequently, a 90-day vacating notice cannot be issued until a
comparable property has been provided to the displacee. If a comparable
property cannot be provided, a revised Evaluation will be required.
C. Mixed-Use and Multifamily Properties
If the displacement dwelling was part of a property that contained another
dwelling unit and/or space used for non-residential purposes, and/or is located
353
on a lot larger than typical for residential purposes, only that portion of the
acquisition payment which is actually attributable to the displacement dwelling
shall be considered its acquisition costs when computing the price differential.
D. Use of Market Rent - (Economic Rent)
Market rent should be used when determining a Rental Replacement Housing
Payment:
1. For an owner-occupant, use the fair market rent for the
displacement dwelling.
2. For a tenant who paid little or no rent for the displacement dwelling, use the
fair market rent, unless its use would result in a hardship because of the person's
income or other circumstances.
E. Partial Take
1. If the acquired dwelling is located on a tract typical in size for residential use in
the area, the maximum replacement housing payment is the probable selling
price of a comparable replacement dwelling on a tract typical in size for the area
less the appraised value of the acquired dwelling and the portion of the tract
being acquired on which it is located plus any damages to remaining home site.
If the Department has offered to buy the entire property as a buildable lot, then
the Before Value in the appraisal (the total appraised value of the tract plus the
appraised value of the acquired dwelling) must be used for purposes of
computing the replacement housing payment.
2. If the acquired dwelling is located on a tract larger in size than typical for
residential use in the area, the maximum replacement housing payment is the
probable selling price of a comparable replacement dwelling and the tract typical
in size for residential use in the area, less the acquisition price of the acquired
dwelling, plus the acquisition price of that portion of the acquired land which
represents a tract typical in size for residential use in the area and any damages
attributable to that portion of the typical lot outside the acquisition.
F. Dwelling on Land With Higher and Better Use
Where the acquired dwelling is located on a tract where the fair market value is
established on a use higher and better than residential, the maximum amount
payable is the probable selling price of a comparable replacement dwelling on a
tract typical in size for residential use in the area, less the acquisition price of the
acquired dwelling, and the acquisition price of that portion of the acquired land
which represents a tract typical for residential use in the area.
354
However, if the dwelling is written off (given no value for residential purposes) or
given a nominal value for interim residential use in the approved appraisal, the
maximum replacement housing payment is the probable selling price of a
comparable replacement dwelling on a tract typical in size for residential use in
the area, less the entire acquisition price of the parcel.
G. Multiple Occupancy of Same Dwelling Unit
If two or more occupants of the displacement dwelling move to separate
replacement dwellings, each occupant is entitled to a reasonable prorated share,
as determined by the agency, of any relocation payments that would have been
made if the occupants move together to a comparable replacement dwelling.
However, if the Department determines that two or more occupants maintain
separate households (i.e., no sharing of rooms) within the same dwelling, such
occupants have separate entitlements to relocation payments.
15.26 REQUIREMENTS TO RECEIVE PAYMENTS
A. Occupancy Requirements
In addition to the tenure of occupancy provisions, a displaced persons eligible for
appropriate payments when he or she relocates and occupies a decent, safe and
sanitary dwelling within a one-year period(unless extended by the Department for
good cause) beginning on the later of the following dates:
1. The date on which the owner received from the Department final payment
for all costs of the displacement dwelling in negotiated settlements; or in the
case of condemnation, the date on which the Department deposits the required
amount in court,
OR
2. The date the Department has made available to the displacee at least one
comparable replacement dwelling,
OR
3. The date on which the displaced person moves from the displacement
dwelling. (For tenant occupants this is the only pertinent date.)
4. No person shall be denied eligibility for a replacement housing payment
solely because the person is unable to meet the occupancy requirements set
forth in these regulations for a reason beyond his or her control, including:
a. A disaster, and emergency or an imminent threat to the public health or
355
welfare as determined by the Department.
b. A displaced person who has entered into a contract for the construction or
rehabilitation of a replacement dwelling and, for reasons beyond his reasonable
control, such as delay in construction, military reserve duty, or hospital stay,
cannot occupy the replacement dwelling within the time period shown above
shall be considered to have purchased and occupied the dwelling as of the date
of such contract. The replacement housing payment under these conditions
would be deferred until actual occupancy was accomplished.
A displaced tenant or owner "occupies" a replacement dwelling within the
meaning of this section only if the dwelling is his permanent place of residence,
and he satisfies the eligibility requirements as set forth.
B. Inspection for Decent, Safe and Sanitary Conditions
Before making payment to the displaced person or releasing a payment from
escrow, the Department must have inspected the replacement dwelling and
determined that it meets the standards for decent, safe and sanitary housing.
The Department may also utilize the services of any public agency ordinarily
engaged in housing inspection to make the inspection.
Such determination by the Department that a dwelling meets the standards for
decent, safe and sanitary housing is made solely for the purpose of determining
the eligibility of relocated individuals and families for payments under this
section and is not representation for any other purpose. The Department will
assume no responsibility or liability for structural, mechanical, legal or other
unforeseen problems that are discovered after the inspection has been
conducted. (SeeFRM15-J). If it is not possible under the circumstances for the
Department to make the necessary inspection or to secure the needed
inspection through a competent third party, a certification from the displacee that
he has occupied decent, safe and sanitary housing may be sufficient to
establish the displacee's eligibility for payment, as approved by the Raleigh
Office.
C. Application for Replacement Housing Payment - FRM15-K
Application for Replacement Housing or Rent Supplement payments shall be in
writing on a form provided by the Department (See FRM15K). For tenant
occupants, the application should be filed within 18 months of displacement,
provided that the tenant occupied a decent, safe, and sanitary replacement
dwelling within 1 year of the displacement, and requested at least their moving
expenses during that 1 year period. For owner-occupants, the application shall
be filed within 18 months of; (1) if the claim is settled, it will be either the
displacement date or date of final payment, whichever is later, provided that the
356
owner-occupant occupied a decent, safe, and sanitary replacement dwelling
within 1 year of the displacement, and requested at least their moving expenses
during that 1 year period; or (2) in the case of condemnation, the date of
displacement or the date the full amount of the estimated just compensation is
deposited in the court, whichever is later, provided that the owner-occupant
occupied a decent, safe, and sanitary replacement dwelling within 1 year of the
displacement, and requested at least their moving expenses during that 1 year
period. The Department may waive this time period for good cause.
The Replacement Housing Payment may be made directly to the relocated
individual or family, or upon written instruction from the relocated individual or
family, directly to the lessor (landlord) for rent or the seller for use toward the
purchase of decent, safe and sanitary dwelling or any other third party as
designated by the displacee. (SeeFRM15-ii). In cases where an applicant
otherwise qualifies for replacement housing payments and requests the
Department to do so, such payments shall be paid into escrow prior to the
displacee's moving.
D. Advanced Replacement Housing Payments in Condemnation Cases
– Stipulation
No property owner will be deprived of the earliest possible payment of the
replacement housing amounts to which he is rightly due. A Replacement Housing
Payment can be computed and paid in advance to a property owner if the
determination of the Department's acquisition price will be delayed pending the
outcome of condemnation proceedings. Since the amount of the replacement
housing payment cannot be determined due to the pending condemnation
proceedings, a provisional replacement housing payment may be calculated by
using the Department's written offer for the property as the acquisition price.
Advance payments of such amount may be made upon the owner-occupant's
agreement that upon final determination of the condemnation proceedings, the
replacement housing payment will be recomputed using the acquisition price
determined by the court as compared to the lower of the actual price paid or the
amount determined by the Department as necessary to acquire a comparable,
decent, safe and sanitary dwelling. Any agreement prepared must be agreed to
and signed by both the owner and his attorney. If the amount awarded in the
condemnation proceeding as the fair market value of the property acquired, plus
the amount of the provisional replacement housing payment exceeds the price
paid for, or the Department's determined cost of the comparable dwelling, the
owner will refund the Department from the court award, a sum equal to the
amount of the excess. In no event, shall he be required to refund more than the
amount of the replacement housing payment advanced. If the property owner
does not agree to such adjustment, the replacement housing payment shall be
deferred until the case is finally adjudicated and computed on the basis of the
final determination, using the award as the acquisition price.
357
In the event this situation arises, the Division Right of Way Agent should prepare
the proposed Stipulation agreement, see FRM15-iii, and shall forward it to the
Raleigh Central office along with FRM15-D, FRM15-i and a cover letter of
explanation. This Stipulation will be executed by the displacee and his legal
representative. The executed Stipulation should then be forwarded to the
Relocation Coordinator in Raleigh and a copy be included in the claim for
payment pertinent to the eligible replacement housing payment. Once the
Raleigh Central office has filed the Stipulation with the court papers relative to
the condemnation proceeding, the Department will pay the claimed replacement
housing payment as directed in the claim for payment.
E. Information to Raleigh Office
Since the replacement housing payment is usually the last payment to the
displacee, copies of correspondence, forms, documents, diaries, and any other
related information not previously submitted should be forwarded at this time with
the request for the replacement housing payment.
F. Documentation Support
Documentation of the purchase of replacement housing must be supported by
the displacee submitting either the original or a certified copy of the HUD 1
closing statement and instrument of conveyance. Other documentation required
is a completed Offer to Purchase signed by all parties, as well as a copy of the
recorded Deed of Trust, if a mortgage was obtained on the replacement
dwelling. In lieu of the availability of a closing statement, other supporting
documentation is acceptable, i.e. cancelled checks, building contract receipts,
etc.
G. Distance of Move
The distance a displacee moves will have no bearing on the receipt of a
replacement housing payment. Should a move be made out of state by a
displacee, notification to the Raleigh Office of the facts should be made and the
Raleigh Office will handle the DSS inspection matter with the state to which the
relocation has been made. FRM15-J should be submitted in duplicate with the
request including the appropriate information inserted at the top of the form.
H. RHP Completed
The supplement payment will be established by the Agent and furnished to the
Division Right of Way Agent for his approval. The approved appraisal and the
amount of the approved supplemental payment, if any, will be returned to the
Agent for his/her use in negotiating the claim on owner-occupied properties only.
358
On tenant-occupied properties, the Agent will retain the rent supplement letter
and will advise the tenant (FRM 15-H, within fifteen (15) days after the offer is
made to the owner of the property, of the amount he/she may be entitled to
receive.
I. Before Moving
The displacee should contact and secure from the Agent his written approval that
the house proposed for purchase or renting meets decent, safe and sanitary
standards. This information can be furnished by the completion of FRM15-J.
Close contact should be maintained with the displacee to anticipate his need for
such approval in case he fails to notify you prior to moving. This applies both to
replacement housing payments and rent supplement payments.
J. Ownership of Replacement Dwelling or Property Prior to
Displacement
Any person who has obtained legal ownership of a replacement dwelling or land
upon which his replacement dwelling is constructed or moved, either before or
after displacement, and occupies the replacement dwelling after being displaced
but within the applicable time limit, is eligible for a replacement housing payment
if the replacement dwelling meets DSS requirements. The current fair market
value of the previously owned property (land and improvements) will be used to
determine if a replacement housing payment is justified. This will apply to
remaining land as well. However, incidental closing cost or increased mortgage
differential associated with the purchase of the previously owned property are
ineligible for reimbursement.
K. Owner Retention of Displacement Dwelling
If the owner retains ownership of his or her dwelling, moves it from the
displacement site and reoccupies it on a replacement site, the purchase price of
the replacement dwelling shall be the sum of: (1)the cost of moving and
restoring the dwelling to a condition comparable to that prior to the move; and (2)
the cost of making the unit a decent, safe and sanitary replacement dwelling; and
(3) the current fair market value for residential use of the replacement site unless
the claimant rented the displacement site and there is a reasonable opportunity
for the claimant to rent a suitable replacement site; and (4) the retention value of
the dwelling
L. Conversion of Payment
A displaced person who initially rents a replacement dwelling and receives a
rental assistance payment is eligible to receive a payment if he or she meets the
359
eligibility criteria for such payments, including purchase and occupancy within the
prescribed 1-year period. Any portion of the rental assistance payment that has
been disbursed shall be deducted from the payment.
M. Payment After Death
A replacement housing payment is personal to the displaced person and upon
his or her death any undisbursed portion of any such payment shall not be
paid to the heirs or assigns, except that:
1. The amount attributable to the displaced person's period of actual occupancy
of the replacement housing shall be paid.
2. The full payment shall be disbursed in any case in which a member of a
displaced family dies and the other family member(s) continue to occupy the
replacement dwelling.
3. Any portion of a replacement housing payment necessary to satisfy the legal
obligation of an estate in connection with the selection of a replacement dwelling
by or on behalf of a deceased person shall be disbursed to the estate.
N. Revision to Replacement Housing Amount
During the relocation period, if comparable housing within the originally offered
replacement housing amount is no longer available, the Department will
determine a new replacement housing amount based on available housing which
is equal to or better than the subject and meets the other comparable criteria.
The recomputed replacement housing payment can be lower than the original
only if the displaced person has not committed to a dwelling based on the original
replacement housing payment.
In certain instances where the Department has been furnished erroneous
information by a displacee, it will be permissible to recomputed a replacement
housing payment offer which was based on the confirmed price of a comparable
dwelling that "exceeds" the comparability requirement. For example, if the
Department learns that the need for the additional space, room or special
requirement has been eliminated before the displacement occurs, then a new
payment should be computed to conform to comparability provided that the
displacee has not actually committed himself in the purchase of a replacement
dwelling to the extent that he would suffer financial loss if he does not complete
the transaction. If he has so committed himself, the original replacement housing
payment will not be revised. This policy will apply to both the long and short term
owners and tenants.
360
O. Proration of Administrative Increases on Owner-Occupied Parcels
Where administrative increases are made over and above the approved
appraisal, it will be necessary to prorate the increase on claims involving
farm acreages, acreage tracts or misplaced improvements on other lands
where the value must be extracted.
1. If there is a carve-out on an owner-occupied claim, the Division Right of Way
Agent will stamp or write on the cover of the approved appraisal and on the
Evaluation the percentage of the amount of the approved appraisal which is
applicable to the house, typical lot, and typical improvements.
2. When an Agent settles a claim of this nature for an amount in excess of the
approved appraisal, he/she should advise the owner at the time of negotiating
the settlement that the replacement housing payment will be reduced on a
prorated basis for the amount of the administrative adjustment which is
applicable to the replacement housing payment. The Agent should calculate the
deduction and advise the owner of the amount of the replacement housing
payment he will receive if he qualifies. For example: The appraised value of the
acquired dwelling and lot typical in size for residential use represents 50%of the
total approved appraisal offer. A $10,000.00 administrative increase in the right
of way settlement would reduce the calculated replacement housing payment by
$5,000.00 ($10,000.00 x 50%).
3. Once the Evaluation has been completed and approved on all owner-occupied
properties, the Division Right of Way Agent will send a copy of the Evaluating
Agent's Report (FRM15-I) to the State Relocation Coordinator with the normal
claim package. Also, at this point in time, the amount of the replacement housing
payment and the percentage of the approved appraisal is to be inserted on the
computer relocation screen for each project parcel.
P. The Value of Sweat Equity
The value of the displacee's labor can be considered part of the actual cost of
construction when the displacee builds or assists in building his/her own
replacement dwelling. This labor could also include time and expenses involved
in supervising the construction in cases where the displacee acts as his own
general contractor. The expenses must be actual and reasonable and the profit
factor should be deducted since this is not an incurred expense. This payment
will be limited to the immediate displaced family's members and based on local
labor rates. See FRM15-C.
15.27 180-DAY OWNER OCCUPANT
361
A. Eligibility
A displaced person is eligible for the replacement housing payment for a 180-day
homeowner-occupant if the person:
1. Has actually owned and occupied the displacement dwelling for not less than
180 days immediately prior to the initiation of negotiations; and
2. Purchases and occupies a decent, safe and sanitary replacement dwelling
within one (1) year after the later of the following dates (except that the
Department may extend such one-year period for good cause).
a. The date the person receives final payment for the displacement dwelling or,
in the case of condemnation, the date the required amount is deposited in the
court, or
b. The date at least one comparable replacement dwelling is made available, or
c.
The date the displaced person moves from the displacement dwelling.
B. Amount of Total Payment
The total replacement housing payment for an eligible 180-dayhomeowneroccupant is an amount not to exceed $22,500.00. Any amount over
$22,500.00 will be considered in Last Resort Housing. The total replacement
housing payment is the combined sum of:
1. The amount by which the cost of a replacement dwelling exceeds the
acquisition cost of the displacement dwelling, as determined in accordance with
paragraph C of this section; and
2. The Mortgage Interest Differential (MID), which is the amount necessary to
compensate the displaced person for any increased interest costs and other debt
service costs to be incurred in connection with the mortgage(s) or equity line(s) of
credit on the replacement dwelling, as determined in accordance with paragraph
D of this section; and
3. The amount of the reasonable expenses that are incidental to the purchase of
the replacement dwelling, as determined in accordance with paragraph E of this
section.
C. Determination of Price Differential
The price differential is the amount which must be added to the acquisition cost
of the displacement dwelling to provide a total amount equal to the lesser of:
362
1. The reasonable cost of a comparable replacement dwelling; or
2. The purchase price of the decent, safe and sanitary replacement dwelling
actually purchased and occupied by the displaced person.
D. Mortgage Interest Differential (M.I.D.)
The MID payment is provided to compensate a displaced person for the
increased interest costs he is required to pay for financing a replacement
dwelling. The MID payment shall be the amount which will reduce the mortgage
balance or equity line of credit on a new mortgage to an amount which could be
amortized with the same monthly payment for principal and interest as that for
the remaining mortgage balance(s) on the displacement dwelling. In addition,
payments shall include other debt service costs (mainly points), if not paid as
incidental costs, and shall be based only on bonafide mortgages that were valid
liens on the displacement dwelling for at least 180 days prior to the initiation of
negotiations.
1. The payment shall be based on the unpaid mortgage balance(s) on the
displacement dwelling; however, in the event the person obtains a smaller
mortgage than the mortgage balance(s) computed in the buy-down
determination, the payment will be prorated and reduced accordingly. In the case
of a home equity loan, the unpaid balance shall be that balance which existed
180 days prior to the initiation of negotiations or the balance on the date of
acquisition, whichever is less.
2. The payment shall be based on the remaining term of the mortgage(s) on the
displacement dwelling or the term of the new mortgage, whichever is shorter.
3. The interest rate on the new mortgage used in determining the amount of the
payment shall not exceed the prevailing fixed interest rate for conventional
mortgages currently charged by mortgage lending institutions in the area in which
the replacement dwelling is located.
4. Purchaser’s points and origination fees or assumption fees, but not seller’s
points, shall be paid to the extent:
a. They are not paid as incidental expenses,
b. They do not exceed rates normal to similar real estate transactions in the area,
c. The Department determines them to be necessary. If there are mortgages
available to the displacee in the market place carrying equal or lesser interest
rates with no points, then no points would be reimbursed in the purchase of the
replacement property.
363
d. The computation of such points and fees shall be based on the unpaid
mortgage balance on the displacement dwelling, less the amount determined for
the reduction of such mortgage balance under this section.
5. If a displacee can only obtain a new loan at an above-market rate due to poor
credit, the actual rate of the new loan can be used in the computation. In this
case, approval should be obtained from the Raleigh office in advance.
6. The displaced person shall be advised on FRM15-TT of the approximate
amount of this payment and the conditions that must be met to receive the
payment as soon as the facts relative to the person’s current mortgage(s) are
known. The payment shall be made available at or near the time of closing on the
replacement dwelling in order to reduce the new mortgage as intended. The final
payment will be computed by use of the Mortgage Tool Box software program
with a copy of the computation submitted with the claim for payment.
It will be the owner’s responsibility to furnish the Agent the necessary
information pertaining to the old and new loans for calculating this payment at
least 30 days prior to the closing of the new loan.
E. Incidental Expenses
The incidental expenses (generally called closing costs) to be paid(see FRM15NN are those reasonable and necessary one-time costs actually incurred by the
displaced person incident to the purchase of a replacement dwelling, and
customarily paid by the buyer. These are shown on the HUD 1 Settlement
Statement, page 2, in three areas: the upper area (lines 800-815), the middle
area (lines900-1008), and the lower area (lines 1100-1310).
1. UPPER AREA (lines 800-815): These are one-time charges made by and
paid to the mortgaging company, including loan origination fee and points (both
are based on the lesser of the old mortgage balance or the new loan amount),
appraisal fee, credit report fee, tax service fee, application fee, flood
determination fee, commitment fee, bank courier fees, mortgage broker fee (if
charged to the buyer), etc. All these expenses are eligible only if the displacee
had an existing mortgage or equity line for 180days prior to the offer.
2. MIDDLE AREA (lines 900-1008): These are charges for continuing expenses
called prepaid expenses. With one exception*, NONE OF THEM ARE ELIGIBLE.
Charges include pro-rated interest, hazard insurance, city/county property taxes,
assessments, etc. If mortgage insurance is shown in this section, it is payable
under certain circumstances as described below.
* Mortgage insurance premiums will be considered only if the mortgage
insurance premium is required on a loan. If the owner occupant could have
purchased the selected comparable by securing a conventional mortgage,
364
without mortgage insurance, any mortgage insurance cost incurred with the
actual replacement home purchased is not considered to be required. In making
a determination if the displacee could have purchased replacement housing
without mortgage insurance, it will be assumed that the displacee would have
put a down payment of at least the total amount of:
(1) Equity received from the displacement dwelling.
(2) Plus his eligible replacement housing payment.
Subsequent to this down payment, should mortgage insurance be required on
the remaining loan balance in order to purchase the comparable replacement
property, this amount will set the maximum reimbursement. Should the displacee
choose to putdown a payment of a lesser amount, the amount of reimbursement
for the mortgage insurance premium will be prorated. For tenants who become
owners, reimbursement will be based on actual and reasonable costs.
3. LOWER AREA (lines 1100-1310): These are one-time charges for various
expenses involved with the transfer (sale) of the property. They are normally
eligible, as long as they are reasonable. They include: settlement/closing fee, title
examination, title search, attorneys fee, escrow agents fee, notary fees, title
insurance (based on cost to insure the comp or the replacement, whichever is
less), copies/courier/wire fees, recording fees, revenue stamps (but only in areas
where buyers commonly pay this cost), survey (limited to a comparable site),
pest inspection (but not pest treatment), water and/or sewer inspection fees,
home inspection fee, radon inspection fee, etc. NOTE that some fees listed in
this section do not relate to the sale itself and are not eligible, such as
homeowners’ association fees, payoffs to other creditors, etc.
4. Such other costs as the Raleigh Office determines to be incidental to the
purchase, and new fees which become standard in the industry over time.
5. There may be extenuating circumstances where the Department determines
that the displacee needs to obtain a loan in order to relocate, although there is no
existing loan on the acquired property. For example – in the case of an owneroccupant with a partial interest who must obtain a loan to purchase a
replacement property. The cost of obtaining the loan could be considered
“necessary” and would be eligible incidental expenses, if pre-approved by the
Raleigh office.
F. Rental Assistance Payment for 180-Day Owner Who Rents
1. A 180-day owner eligible for a replacement housing payment who elects to
rent a replacement dwelling is eligible for a rent supplement payment, not to
exceed the RHP that he could have received as a 180 day owner. The payment
shall be computed and disbursed in accordance with Section 15.52-B (see
365
below). The only exception to this computation is that the base monthly rental for
the displacement dwelling is the monthly economic rent plus the cost of utilities
(i.e., the 30% rule does not apply).
15.28 90-DAY OCCUPANTS – OWNER OR TENANT
A. Eligibility
A tenant or owner-occupant displaced from a dwelling is entitled to a payment
not to exceed $5,250.00 for rental assistance, as computed in accordance with
paragraph B of this section, or down payment assistance, as computed in
accordance with paragraph C of this section, if such displaced person:
1. Has actually and lawfully occupied the displacement dwelling format least 90
days immediately prior to the initiation of negotiations; and
2. Has rented, or purchased, and occupied a decent, safe and sanitary
replacement dwelling within one (1) year after:
a. In the case of a tenant, the date he or she moves from the displacement
dwelling, or
b. In the case of an owner-occupant, the later of:
(1) The date he or she receives final payment for the displacement dwelling, or in
the case of condemnation, the date the required amount is deposited in the court;
or
(2) The date he or she moves from the displacement dwelling.
B. Rental Assistance Payment
1. Amount of Payment. An eligible displaced person who rents a displacement
dwelling is entitled to a payment up to $5,250.00 for rental assistance. (The
$5,250 amount may be exceeded under provisions of Last Resort Housing).
Such payment shall be 42times the amount obtained by subtracting the “base
monthly rental” (described below) for the displacement dwelling from the lesser
of:
a. The monthly rent and estimated average monthly cost of utilities for a
comparable replacement dwelling; or
b. The monthly rent and estimated average monthly cost of utilities for the
decent, safe and sanitary replacement dwelling actually rented and occupied by
366
the displaced person.
2. The “base monthly rental” for the displacement dwelling is the lower of
either a, b, or c (below):
a. The average monthly cost for rent and utilities at the displacement dwelling
for a reasonable period prior to displacement, normally one year. (For an owneroccupant, use the fair market rent for the displacement dwelling. For a tenant
who paid little or no rent for the displacement dwelling, use the fair market rent,
unless its use would result in a hardship because of the person’s income or other
circumstances, or
b. Thirty percent (30%) of the person’s average monthly gross household income
if the amount is classified as “low income” in HUD’s Annual Survey of Income
Limits For Public Housing and Section 8 Programs. Gross household income
should include all sources of income to the displacee that is received at
consistent and scheduled intervals. (See new definition of household income
near the beginning of Chapter 15). FRM15-BB should be used and attached to
the Evaluation. If the person refuses to provide appropriate evidence of income
or is a dependent, the base monthly rental shall be established solely on the
criteria in paragraph 2a of this section (above). A child under age 18, a full-time
student, or a resident of an institution may be assumed to be a dependent,
unless the person demonstrates otherwise, or
c. For those displacees receiving a welfare assistance payment from a housing
program that designates the subsidized amounts for shelter and utilities, use the
total of the rent designated for shelter and utilities. Example: if a HUD Section8
resident receives $500 per month subsidy and pays $75himself for a total rent of
$575, use the $575 total rent as the base monthly rental. Then compare this to
another Section 8 comp, if available.
3. Manner of Disbursement. The payment under this section shall be disbursed
in a lump-sum amount unless the Department determines on a case-by-case
basis, for good cause, that the payment should be made in installments or the
displaced person requests periodic payments. However, except as limited by
Section 15.48, M (Payments after Death), the full amount vests immediately.
Under vesting, the only time a rental assistance payment should change is during
the one-year period after relocation (described in Section 15.52, A, 2) and then
only if the tenant elects to up-grade his housing to receive the full amount of
the original computed rent supplement or to change their status from tenant to
owner.
4. Evaluation. This payment will be computed utilizing the same forms as
described for owners (Section 15.46), by filling in the tenant portions of the
forms.
C. Down Payment Assistance Payment
367
1. Amount of Payment. An eligible displaced person who purchases a
replacement dwelling is entitled to a down payment assistance payment in the
amount the person would receive if the person rented a comparable replacement
dwelling. A down payment assistance payment may be increased to any amount
not to exceed $5,250.00 including incidental costs if the computed rental
assistance payment is less than $5,250.00. When the rental assistance payment
exceeds $5,250.00, (Last Resort Housing) the down payment assistance
payment will be based on the amount applied toward the purchase of a decent,
safe and sanitary replacement dwelling but not to exceed the amount of the
rental assistance payment. A displaced person eligible to receive a replacement
housing payment as a 180-day homeowner-occupant is not eligible for this
payment. In the case of an owner-occupant of more than 90 days but less than
180 days, the maximum down payment supplement would be the lesser of the
following:
a. The total benefits a 180-day owner-occupant would receive through a
replacement housing payment. These benefits are: the purchase price
differential for a DSS comparable replacement (RHP Evaluation) plus closing
costs incidental to the purchase of the comparable plus mortgage interest
differential, if appropriate.
OR
b. The amount the owner would receive if the person rented a comparable
replacement dwelling (Rent Supplement Evaluation).
If the total benefits for a 180-day owner-occupant (Item a) should exceed
$5,250.00 while the amount of eligible rent supplement(Item b) be less than
$5,250.00, the 90 to 180-day owner-occupant would be eligible to receive up to a
maximum of $5,250.00 as a down payment supplement, including incidental
closing costs.
2. Application of Payment. The full amount of the replacement housing payment
for down payment assistance must be applied to the purchase price of the
replacement dwelling and related incidental expense.
D. Public Housing and Assistance
It is necessary that tenants not originally residing in public housing be informed
that should they choose public housing, their rent supplement payment will be
reduced or possibly eliminated due to the housing authority subsidy taking its
place. However, the public housing might last much longer than the 42 months,
and the displacee should be advised of this.
368
15.29 REQUESTING AN ADVANCE CHECK FOR TENANT
DISPLACEES TO COVER THE FIRST MONTH’S RENT
PLUS THE SECURITY DEPOSIT AT THEIR REPLACEMENT
RENTAL
The FHWA has approved the following actions for tenants who are placed in an
undue hardship situation as a result of having to pay the first month’s rent, plus
the Security Deposit, prior to moving into a replacement dwelling.
A portion of the displacee’s eligible Rent Supplement payment may be requested
in advance in order to cover the cost of the first month’s rent plus the security
deposit at the replacement dwelling. This advance check will be made payable
to the Landlord of the replacement dwelling. The amount of this advance check
will not exceed the amount of the eligible Rent Supplement payment calculated
for the replacement dwelling that is being rented. The following procedures
must be followed in order to request this advance check.
1) Prior to requesting this advance check, the displacee and new landlord will
either have to supply NCDOT with a written and signed lease showing all
payments due upon signing, as well as the monthly rental amount, and having
both the landlord’s and the displacee’s signatures, OR supply a signed copy of
NCDOT’s Verification of Rent form stating the date that the rental shall begin,
along with the monthly rental amount, and the amount of the security deposit due
at lease signing. These items will be necessary to support the payment that is
being requested.
2) The displacee must sign a Third Party Letter (Frm15-II) allowing the payment
of the first month’s rent plus the security deposit to be paid to the new landlord.
This payment shall not exceed the maximum eligible Rent Supplement payment
calculated for the replacement dwelling that is being rented.
3) The landlord at the replacement dwelling will need to supply a completed and
signed Tax Identification Form (Frm4-M) in order to receive the check in his/her
name.
4) A Claim for Payment Form (Frm15-K) will need to be signed by the displacee
in the amount of the first month’s rent plus the security deposit. This amount
should match the amount shown on the above mentioned Third Party Letter
(Frm15-II).
5) The Frm15-K, the Frm4-M from the Landlord, and the above mentioned rental
documentation will all be needed to request the advance check. All the other
forms normally found in a Claim for Payment file and the Evaluation file are
required to request this check as well.
6) Once the check has been printed, it is the Right of Way Agent’s duty to
369
present the check to the new landlord in the presence of the displacee in order to
ensure that all the proper documentation is signed for the replacement rental,
and to ensure that the landlord will allow the displacee to move in that day. It is
imperative that the Right of Way Agent receive a copy of the first month’s rent
receipt for the relocation file. If a Verification of Rent form was signed prior to
requesting the advance check, and subsequently a Lease was signed upon
delivery of the check, then a copy of the Lease will be needed for the Relocation
file.
7) Once the displacee has completed his/her move into their replacement rental,
they will be eligible to request their moving payment, as well as any remaining
eligible Rent Supplement payment.
Example 1: Displacee is eligible for $10,000.00 in Rent Supplement based
on the replacement dwelling, which rents for $1,000.00 per month with a
$1,000.00 Security Deposit. If an advance check was requested for $2,000.00 to
cover the first month’s rent and the security deposit, then the remaining
$8,000.00 of eligible rent supplement payment, as well as the moving costs, may
be requested once the displacee has completed their move into the replacement
dwelling.
Example 2: Displace is eligible for $1,500.00 in Rent Supplement based on
the replacement dwelling, which rents for $1,000.00 per month with a $1,000.00
Security Deposit. If an advance check is requested to pay for the first month’s
rent and security deposit, then the check will be in the amount of $1,500.00, as
this is all the displacee is eligible to receive as rent supplement. The displacee
can request his/her moving payment after their move is complete, but he/she will
not be eligible for any further rent supplement payment.
15.30 LESS THAN 90-DAY TENANT/OWNER
A. Rent Supplement
This section applies to tenants and owners who have occupied a dwelling for less
than 90 days prior to the initiation of negotiations or who began to occupy it after
the initiation of negotiations AND who are in occupancy at the time the
Department obtains legal possession of the property (closing date or date of filing
in a condemnation proceeding).
The benefits are calculated the same as above for 90 day occupants (section
15.52).The only difference is that the entire rent supplement or down payment is
charged to Last Resort Housing.
B. Down Payment Supplement
370
If the less than 90-day occupant is eligible for a payment and purchases a
decent, safe and sanitary dwelling, the down payment will be the lesser of the
computed rent supplement or the actual down payment on the property
purchased. This payment will be paid under last resort housing.
15.31 MOBILE HOMES
A. General
A tenant or owner-occupant displaced from a mobile home, or mobile home
site, is entitled to a payment for the cost of moving his or her personal property
on an actual cost basis or, as an alternative, on the basis of a fixed payment as
described in the applicable Department schedule.
1. If a displaced mobile home owner (including a non-occupant owner) files a
claim for actual moving expenses for moving the mobile home to a replacement
site, the reasonable cost of disassembling, moving, and reassembling any
attached appurtenances (such as porches, decks, skirting and awnings) which
were not acquired, anchoring of the unit and utility “hookup” charges at the base
of the unit, and utility inspection fees are reimbursable. (The costs to install or
bring utilities to the mobile home are not eligible.)
2. If the mobile home is not acquired but the owner obtains a replacement
housing payment under one of the circumstances described at Section 15.58, C,
the owner is not eligible for payment of moving expenses for moving the mobile
home, but is eligible for moving personal property from the mobile home.
3. If a mobile home requires repairs or a modification to enable it to be moved to
a replacement site, and the Department determines that it is practical to do so,
payment shall be limited to the reasonable costs of moving the mobile home and
making such repairs or modifications.
B. Mobile Home Park Entrance Fee
Nonreturnable entrance fees are reimbursable as part of actual cost moving
expenses unless the Department determines that comparable mobile home
parks are available which do not require entrance fees.
15.31 180-DAY MOBILE HOME OWNER-OCCUPANTS
A displaced owner-occupant of a mobile home and/or mobile home site is
entitled to a replacement housing payment not to exceed $22,500.00 if:
371
A. The person both owned the displacement mobile home and occupied
it on the displacement site for at least 180 days immediately prior to the
initiation of negotiations;
B. The person meets the other basic eligibility requirements; and
C. The Department acquires the mobile home as real property, or the mobile
home is not acquired by the Department but the owner is displaced because
the Department determines that the mobile home:
1. Is not and cannot economically be made decent, safe, and sanitary; or
2. Cannot be moved without substantial damage or unreasonable cost; or
3. Cannot be moved because there is no available comparable replacement
site;
or
4. Cannot be moved because it does not meet city/county ordinances or mobile
home park entrance requirements.
5. If the mobile home is not actually acquired, and the Department determines
that it is not practical to relocate it, the acquisition cost of the displacement
dwelling used for the purpose of computing the price differential amount, shall
include the salvage value or trade-in value of the mobile home, whichever is
higher (salvage value is defined in Section 15.06, Item S).
15.32 90-DAY MOBILE HOME OCCUPANTS
A displaced tenant or owner-occupant of a mobile home is eligible for a
replacement housing payment, not to exceed $5,250.00, if:
A. The person actually occupied the displacement mobile home on the
displacement site for at least 90 days immediately prior to the initiation of
negotiations;
B. The person meets the other basic eligibility requirements at Section
15.52, A; and
C. The Department acquired the mobile home as real property, or the mobile
home is not acquired by the Department but the owner or tenant is displaced
from the mobile
home because of one of the circumstances described at Section 15.58, C.
372
15.33 LESS THAN 90 DAY MOBILE HOME OCCUPANTS
These occupants are eligible for the same benefits as a 90 Day Owner
(15.60 above), except that the charge for the entire amount will be to Last
Resort function code.
15.34 MOBILE HOMES - ADDITIONAL RULES
A. Persons With Both an Ownership and Tenant Interest
A displaced mobile home occupant may have owned the displacement mobile
home and rented the site or may have rented the displacement mobile home and
owned the site. Also, a person may elect to purchase a replacement mobile
home and rent a replacement site, or rent a replacement mobile home and
purchase a replacement site. In such cases, the total replacement housing
payment shall consist of a payment for a dwelling and a payment for a site, each
computed under the applicable section in 15.50 B, D, E, F and 15.52 B, C.
However, the total replacement housing payment to a person shall not exceed
the maximum payment (either $22,500.00 or $5,250.00)
permitted under the section that governs the computation of the
replacement housing payment or rental assistance payment.
B. Cost of Comparable Replacement Dwelling
1. When computing the amount of a replacement housing payment for a person
displaced from a mobile home, the cost of a comparable replacement dwelling is
the reasonable cost of a comparable replacement mobile home, including the
site. This applies whether the displaced person's actual replacement dwelling is
another mobile home or a conventional home.
2. If a comparable replacement mobile home is not available, the replacement
housing payment shall be computed on the basis of the reasonable cost of a
comparable conventional dwelling.
3. If the Department determines that it would be practical to relocate the mobile
home, but the owner-occupant elects not to do so, the Department may
determine that for purposes of computing the price differential, the cost of a
comparable replacement dwelling is the sum of:
a. The value of the mobile home.
b. the cost of any necessary repairs or modifications.
c. The estimated cost of moving the mobile home to a replacement site.
C. Initiation of Negotiations
373
If a mobile home is not actually acquired, but the occupant is considered
displaced under these regulations, the "initiation of negotiations" shall be the
date of the initiation of negotiations to acquire the land, or, if the land is not
acquired, the date the occupant is notified in writing that he or she is a
displaced person for the purposes of these regulations.
D. Person Moves Mobile Home
If the owner is reimbursed for the cost of moving the mobile home under these
regulations, he or she is not eligible to receive a replacement housing payment
to assist in purchasing or renting a replacement mobile home. The person may,
however, be eligible for assistance in purchasing or renting a replacement site.
E. Partial Acquisition of Mobile Home Park
The acquisition of a portion of a mobile home park property may leave a
remaining part of the property that is not adequate to continue the operation of
the park. If the Department determines that a mobile home located in the
remaining part of the property is required to move, the mobile home owner and/or
any tenant occupant shall be considered displaced by the project and entitled to
the relocation payments and other assistance in these regulations.
F. Occupant Buys Conventional Dwelling and Home site
If the displaced occupant owns both the mobile home and the home site, but the
mobile home is considered personalty; the purchase of a conventional dwelling
and home site will require certain consideration of these circumstances. If the
displacee purchases the conventional dwelling and homesite for the full
reinvestment amount as established by the purchased supplement Evaluation,
the displaceewill be eligible for the full amount of the replacement housing
payment without any proration between dwelling and homesite.
15.35 REPLACEMENT HOUSING OF LAST RESORT
A. Whenever a project cannot proceed on a timely basis becausecomparable
replacement dwellings are not available within the monetary limit of $22,500.00
for owners and $5,250.00 for tenants, the Department shall provide additional or
alternate assistance under the provisions of replacement housing of last resort.
Any decision toprovide last resort housing assistance must be adequately
justified either:
1. On a case-by-case basis, for good cause, which means thatappropriate
consideration has been given to:
374
a. The availability of comparable housing in the project area; and,
b. The resources available to provide comparable replacement housing; and,
c. The individual circumstances of the displaced person; or
2. By a determination that:
a. There is little, if any, comparable replacement housingavailable to displaced
persons within the project area and, therefore, justification for last resort housing
assistance maybe necessary for the project; and,
b. The project cannot be advanced to completion in a timelymanner without last
resort housing assistance; and,
c. The method selected for providing last resort housingassistance is cost
effective, considering all elements whichcontribute to total project costs. (Will
project delay justify waiting for less expensive comparable housing to become
available?)
D. Basic Rights of Persons to Be Displaced
No person shall be required to move from a displacement dwellingunless
comparable replacement housing is available to such person.No person may be
deprived of any rights the person may have underChapter 15 or replacement
housing of last resort. The Departmentshall not require any displaced person to
accept a dwelling provided by the Department under these procedures (unless
the Department and the displaced person have entered into a contract to do so)
in lieuof any acquisition payment or any relocation payment for which theperson
may otherwise be eligible.
E. Methods of Providing Last Resort Housing
The Department has broad latitude in implementing housing of lastresort, but
implementation shall be for reasonable cost, on a case-by-case basis unless an
exception to case-by-case analysis is justified for an entire project. The methods
of providing housing of last resort include, but are not limited to:
1. A replacement housing payment in excess of the $22,500.00 and $5,250.00
limits. (A rental assistance subsidy may be provided in monthly installments or in
a lump sum at the Department'sdiscretion - see FRM15-QQ.
2. Rehabilitation of and/or additions to an existing replacement dwelling.
3. The construction of a new replacement dwelling.
4. The provision of a direct loan, which requires regular amortization or deferred
repayment. The loan may be unsecured or secured by the real property. The
375
loan may bear interest or be interest-free.
5. The relocation, and, if necessary, rehabilitation of a dwelling.
6. The purchase of land and/or a replacement dwelling by theDepartment and
subsequent sale or lease to, or exchange with, a displaced person.
7. The removal of barriers to the handicapped.
8. The change in status of the displaced person with his or herconcurrence from
tenant to homeowner when it is more cost-effective to do so, as in cases where a
downpayment may be lessexpensive than a last resort rental assistance
payment.
9. Under special circumstances consistent with the definition of the comparable
replacement dwelling, modified methods of providinghousing of last resort permit
consideration of:
a. Replacement housing based on space and physical characteristics different
from those in the displacement dwelling.
b. Upgraded, but smaller, replacement housing that is decent, safe and sanitary
and adequate to accommodate individualsor families displaced from marginal or
substandard housing with probable functional obsolescence. In no event,
however, shall a displaced person be required to move into a dwelling that is not
functionally equivalent as described in Section 15.06, C, 2.
c. In cases where the displacement single-family dwellingdoes not meet decent,
safe and sanitary requirements, theDepartment may use replacement housing of
higher densityor a mobile home (which meets decent, safe and
sanitaryrequirements) in computing the replacement housing payment.
15.36 DISPLACEMENTS CAUSED BY DISASTERS OR
EMERGENCIES
A. Circumstances Permitting Waiver of Policy on Making Housing
Available
Should a major disaster or an emergency condition cause a personwho is
located on an active right of way project to move before the project would
require the move, the Federal Highway Administration may grant a waiver of
the policy on making housing available. The waiver may be given where it is
demonstrated that a person must move because of:
1. A major disaster as defined in Section 102 (c) of the DisasterRelief Act of 1974
376
(42 U.S.C. 5121); or
2. A Presidentially-declared national emergency; or
3. Another emergency which requires immediate vacation of the real property,
such as when continued occupancy of the displacement dwelling constitutes a
substantial danger to the health or safety of the occupants or the public.
B. Whenever a person is required to relocate for a temporary periodbecause of
an emergency as described above, the Department shall:
1. Take whatever steps are necessary to assure that the affectedperson is
temporarily relocated to a decent, safe and sanitarydwelling.
2. Pay actual reasonable out-of-pocket moving expenses and anyreasonable
increases in monthly housing costs incurred inconnection with the temporary
relocation.
3. Make available to the displaced person as soon as feasible, atleast one
comparable replacement dwelling. (For purposes offiling a claim and meeting
the eligibility requirements of a relocation payment, the date of displacement is
the date theperson moves from the temporarily occupied dwelling.)
C. Insurance Proceeds
To the extent necessary to avoid duplicate compensation, the amountof any
insurance proceeds received by a person in connection with a loss to the
displacement dwelling due to a catastrophic occurrence (e.g. fire, flood, etc.)
shall be included in the acquisition cost of thedisplacement dwelling when
computing the price differential.
15.37 PHOTOGRAPHS REQUIRED
A. For occupied improvements, the Agent shall take a "before" and "after"
photograph. These shall be included within the claim for payment package.
B. "Before" photographs are required to document all other relocation claims.
"After" photographs are not required unless they are essential to illustrate
unusual features associated with relocation paymentssuch "after" photographs
will not be required for small signs, orunoccupied miscellaneous buildings.
C. A photograph of each comparable shall be attached to the decent, safe
and sanitary inspection report (FRM15-J) andsubmitted with the Evaluation.
377
D. A photographic inventory can be utilized in conjunction with a
writteninventory for displaced businesses and large miscellaneous moves.For
miscellaneous moves up to $1,000.00, a photographic inventorycan be used
exclusively.
15.38 DELIVERY OF RELOCATION CHECKS
Any member of the Right of Way Staff can personally deliver Relocationcheck
warrants to designated parties with the exception of the staffperson responsible
for approving eligible payments determined through a Replacement Housing
Payment Evaluation, or a negotiated move (FRM15-R) on a non-residential
claim, who cannot deliver the warrants.
15.39 ON-PREMISE VERSUS OFF-PREMISE
SIGNS/BILLBOARDS RELOCATION
1) When acquiring bids to move any sign, whether it be an On-Premise
Advertising Sign, or a Billboard, the bids that are obtained must show a Total Bid
Amount, and include the breakdown of costs, most specifically the Disconnection
costs and the Reinstallation Costs. Any transportation that is shown in a bid will
be considered as part of the Reinstallation Costs. The bids must also show a
Value In Place amount based on the depreciated value of the On-Premise Sign
or Billboard.
2) When paying to move an On-Premise Advertising Sign we will pay the total
amount of the low bid, including both the Disconnection and Reinstallation costs,
as soon as they take the sign off of our acquired Right of Way. It is assumed that
the business will need to reinstall the sign on-premise in order to continue
advertising the business, therefore we will pay the full amount.
3) When paying to move a Billboard, we will pay the Disconnection costs once
the Billboard has been taken down and removed from our acquired Right of Way,
but we will not pay the Moving and Reinstallation costs until the Billboard actually
gets reinstalled. Billboard regulations (both Local and State government) and
leasehold interests in a Billboard both play a role in the decision to reinstall a
billboard, therefore we cannot assume that a billboard owner will reinstall the
billboard.
4) As mentioned above, our Moving Bids for signs must contain a Value In Place
amount. The Value In Place amount comes into play when calculating a Loss Of
Tangible Personal Property (LTPP) Payment. When the owner of a sign,
whether it be On-Premise or Off-Premise, decides that they no longer want the
sign, they don't want to move it, they want a new sign, or current regulations
require a different type of sign altogether, then they would be eligible to receive
the LTPP Payment for their sign or billboard. They can sign a Frm15-BBB
378
(Affidavit for Loss of Tangible Personal Property), which grants all of their
ownership interest in the sign or billboard to NCDOT, and then just leave the sign
or billboard in place to be torn down during construction. This payment is based
on two scenarios as follows:
A) If the Sign or Billboard Owner does not want to replace the sign or billboard at
a replacement site, then the LTPP Payment will be the lesser of the total Moving
Cost shown on the lower of the two bids, or the Value In Place amount for the
sign or billboard shown on the lower of the two bids. To avoid confusion, and to
keep things as simple as possible, we will use the Value In Place amount shown
on the Lower of the two moving bids, even if the Value In Place amount is lower
on the High Bid. We want to maintain our use of the lower of the two bids, just as
we would use if were paying the moving costs, even if this results in a higher
LTPP Payment.
B) If the Sign or Billboard Owner does want to replace the sign or billboard at a
replacement site with a new sign or billboard, then the LTPP Payment will be the
lesser of the total Moving Cost shown on the Lower of the two bids, or the
Replacement Cost new.
5) Per definition under the Federal Uniform Relocation Act, a Billboard is a
business, to the extent that the owner of said Billboard would be eligible for
Searching Expenses for searching for a replacement location for said Billboard.
A) Since every Billboard is considered as a separate business, then every
displaced Billboard owner can request Searching expense reimbursement
through relocation for every billboard which must be relocated due to a single
project.
B) Billboards are not eligible for Reestablishment Payments or a Business Fixed
Payment.
C) On-Premise signs are not considered as an individual business, and are
therefore only eligible for a moving payment or Loss of Tangible Personal
Property Payment.
379
Chapter 16 ACQUISITION BY CONSULTANT
CONTRACT
In order to insure timely right of way acquisition on highway projects, the Branch
has established procedures to contract with right of way consulting firms. The
procedures for contracting right of way consultants are contained in the North
Carolina Administrative Code at 19A NCAC 02B.0164 Use of Right of Way
Consultants:
16.01 USE OF RIGHT OF WAY CONSULTANTS
A.
Introduction and purpose. The North Carolina Department of
Transportation maintains a staff capable of performing the normal
workload for most of the functions required for the acquisition of rights of
way for our highway system. However, it is recognized that situations
arise and certain specific needs exist which can best be met by the use
of qualified consultants outside the Department.
This Rule is established for the preparation, execution and administration
of contracts for right of way acquisition services by consultant firms that
are over ten thousand dollars ($10,000.00).
Due to the diversity of contract types, some portions of this Rule may not
be fully applicable to all situations. The Right of Way Branch Manager
shall be responsible for determining when waivers from portions of this
Rule are justified. Guidelines for determining if a waiver is justified shall
include:
B.
1.
Emergency situation exists that affects the health and
Safety of the traveling public.
2.
Availability of pre-qualified firms willing to perform specified work
The following are incorporated by reference including any subsequent
amendments or editions:
1. General Statute 136-28.1(f) and General Statute 130A444 thru General Statute 130A-451.
380
2. 23 CFR 710-720, FHWA right of way regulations which contain
some contracting requirements.
3. 49 CFR 18.36, USDOT contracting regulations.
These documents are available for public inspection in the office of the
Right of Way Branch. Copies may be obtained from the Right of Way
Consultant Coordinator at a cost of five dollars ($5.00) for each
document.
C.
Definitions. The following definitions are for the purpose of
clarifying and describing words and terms used in this section.
(1) Right of Way Consultant Coordinator - The individual who is
assigned the responsibility of initiating, negotiating, and
administering a contract for professional or specialized services.
(2) Cost per Unit of Work - A method of compensations based on an
agreed cost per unit of work including actual costs, overhead, payroll
additives and operating margin.
(3) Cost Plus Fixed Fee - A price based on the actual allowable cost,
including overhead and payroll additives, incurred by the firm
performing the work plus a pre-established fixed amount for
operating margin.
(4) Cost Proposal - A detailed submittal specifying the amount of work
anticipated and compensation requested for the performance of the
specific work or services as defined by the Department.
(5) Firm - Any private agency, firm, organization, business or individual
offering qualified right of way acquisition services.
(6) Lump Sum - A fixed price, including cost, overhead, payroll additives
and operating margin for the performance of specific work or
services.
(7) Payroll Burden - Employer paid fringe benefits including employers
portion of F.I.C.A., comprehensive health insurance, group life
insurance, unemployment contributions to the State, vacation, sick
leave, holidays, workers’ compensation and other such benefits.
(8) Proposal - An offer by a firm to perform specific work or services for
the Department at specified rates of compensation.
381
(9) Scope of Work - All services, actions and physical work required by
the Department to achieve the purpose and objectives defined in the
contract. Such services may include the furnishing of all the required
labor, equipment, supplies and materials except as specifically
stated.
(10)
Contract Amendment - A written supplement to the
contract which modifies the terms of an existing
contract.
(11)
Termination Clause - A contract provision which allows the
Department to terminate, at its discretion, the performance of
work, in whole or in part, and to make final payment in
accordance with the terms of the contract.
(12)
Right of Way Consultant Selection Committee - The Committee
shall consist of the Branch Manager, Assistant Branch Manager,
Unit Heads, and the Right of Way Consultant Coordinator or their
designated representatives and shall be chaired by the Branch
Manager. When federal funds will be used as compensation for
services to be solicited, a representative of the Federal Highway
Administration shall sit with the Committee but shall not be voting
members.
D. Application. This Rule shall apply to all contracts for right of way acquisition
services which cost more than ten thousand dollars ($10,000.00) and are
obtained by the Department of Transportation pursuant to G.S. 136-28(f).
E. Pre- qualification of firms. The Department shall advertise for firms
interested in performing right of way acquisition services for the North
Carolina Department of Transportation when necessitated by its projected
workload. The advertisement shall be published in the North Carolina
Purchase Directory, a bi-monthly publication of N.C. Department of
Administration. The advertisement shall indicate that interested firms must
respond by letter to the Department indicating their interest within two weeks
of the date of the advertisement. The response shall include the Federal
Government’s Government Accounting Office Forms 254 and 255, and
copies of the firm’s latest brochures. Additional firms may be considered for
pre-qualification at any time that the Department recognizes a need based on
current projected workload for additional pre-qualified firms. Evaluation of the
firms expressing interest will be based on the following considerations:
(1) Experience, education, reputation, and required certifications of staff in
the fields of expertise required by contract including negotiations,
382
appraisals, and relocation assistance;
(2) Number of staff available to perform the services required by the contract
including negotiations, appraisals, and relocation assistance;
(3) Financial ability to undertake the proposed work;
(4) The firm’s accounting system including ability to identify costs
chargeable to the project;
(5) Past performance by the firm on previous Right of Way acquisition
contracts including meeting the time schedule for the work;
(6) Equipment necessary to perform the required services.
A number of firms sufficient to perform the anticipated workload that meet
the qualifications in Paragraphs E(1-6) of this Rule shall be designated as
pre-qualified to perform right of way acquisition services for the North
Carolina Department of Transportation. The number of pre-qualified firms to
be maintained on the Department’s pre-qualified list shall be determined by
the Manager of the Right of Way
F. Register of pre-qualified firms. The Right of Way Consultant Coordinator
shall be responsible for maintaining a "Register of Pre-Qualified Firms" from
whom specific project proposals may be solicited to perform right of way
acquisition services for the North Carolina Department of Transportation Right of Way Branch.
G. Request for approval to solicit specific project proposals. The Right of Way
Consultant Selection Committee through the Manager of Right of Way is
responsible for determining when the need for right of way acquisition
services exists. Upon determining that a need exists, the Committee shall
request approval from the Branch Manager to solicit proposals for work. The
request shall be in writing and shall include the type of work and specific
justification for the work being performed by a consultant firm as:
(1) non-availability of manpower,
(2) lack of expertise, or
(3) other reasons.
383
H. Solicitations of specific project proposals. Specific Project Proposals shall
be solicited from all Pre-Qualified Firms. Solicitations shall be by direct
mailing of plans and Specific Project Proposal Requests.
The Right of Way Consultant Coordinator, upon approval of the Manager of
Right of Way, shall be responsible for preparing the request for proposals.
The request shall contain plans and information describing the location of
the project, types and scope of work required, and the time schedule for
accomplishing the work.
The solicitation for a Specific Project Proposal shall require that all firms
shall attend a Scoping Meeting on a specified date in order to qualify to
submit a Specific Project Proposal for consideration. Any firm that does not
wish to submit a Specific Project Proposal on a particular project shall
advise, in writing, the Manager of Right of Way of their decision not to
submit a Specific Project Proposal for that project.
I.
Selection of firm for specific project contract. The Right of Way Consultant
Selection Committee shall review all responses received to the request for
proposals and shall select three firms from those indicating interest (except
when there are fewer than three responses). When several projects are
under consideration at the same time, a firm shall be selected for each
project and two alternates may be selected from the entire group, at the
discretion of the Selection Committee. These firms shall be listed in
descending order of preference based on the Selection Committee’s review
and analysis of all responses. The Committee may elect to interview all or
part of the firms responding to the request for proposal prior to establishing
the order of preference. The Selection Committee’s file shall be documented
as to the reasons for the selection of a firm. In the evaluation of the firms
submitting Specific Project Proposals, the following factors shall be
considered:
(1) The monetary amount of the competitive proposal;
(2) The firm personnel who are currently available to perform right of
way acquisition services on the specific project and their
qualifications; and
(3) The ability of the firm to complete the work according to the
Department’s schedule.
Any firm selected to perform Right of Way Services for the North Carolina
Department of Transportation shall be required to establish an office in
North Carolina, and may, at the discretion of the Department, be required to
384
establish the office at the location of the project. This office shall be the
location for maintaining all project records open for review by appropriate
Department personnel.
After the authorization to proceed to negotiations is given by the Branch
Manager, the Right of Way Consultant Coordinator shall notify the firm
chosen by the Selection Committee.
J.
Negotiation of specific project contract. Prior to receiving a specific project
proposal, the Right of Way Consultant Coordinator shall prepare an estimate
of the cost of performing the work in-house. This estimate will be used in
evaluating the acceptability of the selected firm’s cost proposal.
If considered necessary by the Right of Way Consultant Coordinator a
meeting with the selected firm may be scheduled to discuss the scope of the
proposed work. The discussions will vary depending upon the firm’s
familiarity with the Department’s methods, policies, standards, etc. For firms
unfamiliar with the Department’s requirements, the discussion shall include:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Policies used by the Department for type and scope of work involved;
A copy of a contract in draft form;
Methods of payment;
Procedures for invoicing;
Standard forms to be used;
Fiscal requirements;
Items and services to be provided by the Department.
A representative of the firm shall keep minutes of the meeting, have them
typed and submit a copy to the Right of Way Consultant Coordinator. The
minutes shall be reviewed for completeness, accuracy and confirmation of
mutual understanding of the scope of work. The minutes shall be approved
by signature of the Right of Way Consultant Coordinator and an approved
copy will be returned to the firm. The firm’s competitive cost proposal shall
be supported by a breakdown of the man-hours required to perform each of
the services contained in the contract and the fixed bill proposal must also
include a detailed breakdown of all non-salary direct costs and any subcontract or fee services. Upon receipt of the selected firm’s cost proposal, a
review will be made. The review shall include a comparison with the in-house
estimate and is intended to determine both the reasonableness of the
proposal and areas of substantial differences which may require further
discussion and negotiation. Where further negotiations are required, they
shall be the responsibility of the Right of Way Consultant Coordinator. The
final negotiations shall satisfactorily conclude all remaining points of
difference and shall consider any comments submitted by External Audit
Unit. The Right of Way Consultant Coordinator with the concurrence of the
385
Manager of Right of Way shall approve the final fee.
If acceptable contract cannot be negotiated, negotiations shall terminate, the
firm will be notified in writing and the next listed firm shall be contacted to
initiate negotiations for the work.
K. Board of Transportation approval and execution of contract. After final
negotiations are complete, the firm shall execute a minimum of two contract
originals and submit them to the Consultant Coordinator.
The Consultant Coordinator shall submit the contract to the State Highway
Administrator who may consult with the Advisory Budget Commission
pursuant to G.S. 136-28.1(f). The Manager of Right of Way shall submit the
proposed contract to the Board of Transportation for approval. After the
Board of Transportation approves the contract, the Manager of Right of Way
shall execute and return the contract to the Right of Way Consultant
Coordinator.
The Right of Way Consultant Coordinator shall transmit one original contract
to the contracting firm and shall retain on e in the project file. The Consultant
Coordinator shall provide each of the following with the copy of the contract:
the Manager of DOT Program and Policy Branch; DOT Fiscal Section; and
Federal Highway Administration when federal-aid funds are involved.
L.
Sub-contracting. A sub-contracting firm may sublet portions of the work
proposed in the contract only upon approval of the Right of Way Consultant
Coordinator. The responsibility for procuring a subcontractor and assuring
the acceptable performance of the work lies with the prime contractor. Also,
the prime contractor will be responsible for submitting the proper supporting
data to the Contract Administrator for all work that is proposed to be sublet.
M. Methods of compensation:
1.
Lump Sum - This method of compensation is suitable for contracts
where the amount and character of required work or services can
be clearly
defined and understood by both the Department and
the contracting firm.
2.
Cost Plus Fixed Fee - This method of compensation is suitable for
contracts where the general magnitude of work is known but the
scope of work or period of performance cannot be defined clearly
and the Department needs more flexibility in expediting the work
without excessive amendments to the contract.
386
3.
Cost Per Unit of Work - This method of compensation is suitable for
contracts where the magnitude of work is uncertain but the character
of work is known and a cost of the work per unit can be determined
accurately.
4.
Cost Per a Percentage of Cost - This method of compensation shall
not be used.
N. Administration of contract. The administration of the contract shall be the
responsibility of the Right of Way Consultant Coordinator. This shall include
the review of invoices and recommendation for payment to the Fiscal
Section.
O. Contract Amendments. Each contract shall contain procedures for contract
modifications and define what changes can only be made by means of a
contract amendment. Any change in the amount of compensation must be
accomplished by contract amendment. For contracts which use federal
funds as compensation for services, the contract amendment must be
approved by the Federal Highway Administration.
P. Monitoring of work. The responsibility for monitoring the work, the schedule
and performing reviews at intermediate stages of the work shall rest with the
Right of Way Consultant Coordinator.
Q. Final payment - When it is determined that the work is complete, the final
invoice shall be approved by the Right of Way Consultant Coordinator and
forwarded to the Fiscal Section with recommendation for payment. When
the contract is terminated by the Department, the final payment shall be for
that portion of work performed.
R. Termination of contract. All contracts shall include a provision for the
termination of the contract by the Department. Such termination by the
Department shall be in writing and shall be effective upon receipt by the
contracting firm.
History Note: Statutory Authority G.S. 136-28.1(f); Eff. November 1, 1991
Amended Eff. August 1, 1998; October 1, 1993; November 2, 1992.
387
Chapter 17 HIGHWAY
BEAUTIFICATION
PROCEDURES
PART 1 – OUTDOOR ADVERTISING
17.01 HISTORY
National interest in controlling outdoor advertising first appeared in 1956 when
Congress authorized the creation of the Interstate Highway System. Public
opinion rose sharply concerning the need to control advertising on the Interstate
network. In 1958, Congress took action by providing a voluntary program under
which states could enter into agreements with the Federal Government to
control outdoor advertising. States that entered into a program that controlled
outdoor advertising were eligible for bonus Federal-aid payments. North
Carolina was among the twenty-five states that chose not to voluntarily control
outdoor advertising.
In 1965 Congress broadened the outdoor advertising control to include the
Federal-aid Primary System. The Highway Beautification Act of 1965, Public
Law 89-285, abandoned the voluntary bonus program and required all states to
make provisions for effective control of outdoor advertising within 660 feet of the
right of way or else lose ten percent of their Federal-aid Highway Funds. The
Federal-aid Highway Amendments of 1974 extended the control of outdoor
advertising beyond 660 feet of the right of way.
As a result of the Highway Beautification Act of 1965, the North Carolina General
Assembly enacted the "Outdoor Advertising Control Act." Article 11 General
Statute 136-126 through 136-140. General Statute 136-127, Declaration of
Policy, states:
"The General Assembly hereby finds and declares that outdoor advertising is
a legitimate commercial use of private property adjacent to roads and
highways but that the erection and maintenance of outdoor advertising signs
and devices in areas in the vicinity of the right of way of the interstate and
primary highways within the State should be controlled and regulated in order
to promote the safety, health, welfare and convenience and enjoyment of
travel on and protection of the public investment in highways within the State,
388
to prevent unreasonable distraction of operations of motor vehicles and to
prevent interference with the effectiveness of traffic regulations and to
promote safety on the highways, to attract tourists and promote the
prosperity, economic well-being and general welfare of the State and to
preserve and enhance the natural scenic beauty of the highways and areas in
the vicinity of the State highways and to promote the reasonable, orderly and
effective display of such signs, displays and devices."
In 1972, an agreement between the US Department of Transportation and the
NC Department of Transportation was consummated. The effective date of
North Carolina’s outdoor advertising program was established on October 15,
1972.
In 1978, under amendments to the Surface Transportation Assistance Act,
Congress provided that "just compensation" must be paid for the forced removal
of all legally erected outdoor advertising signs adjacent to interstate and/or
federal-aid primary routes. This prohibited states and local government’s from
amortizing signs along Interstate and Federal-aid Primary routes prior to
removal. The penalty for failure to provide just compensation was set at loss of
10% of all federal-aid highway appropriations.
In 1982, the North Carolina General Assembly enacted legislation requiring local
authorities to carry out the just compensation requirement should they require the
removal of the sign structure(s) adjacent to interstate and federal-aid primary
routes.
General Stature 136-130 authorizes the Department of Transportation to
promulgate rules and regulations governing the erection and maintenance of
outdoor advertising permitted by the Act. Section 19A NCAC 4A .0007 provides
the Secretary of Transportation is delegated the authority by the Board to adopt
and promulgate all necessary rules, regulations and ordinances to control and
regulate outdoor advertising in accordance with related state and federal rules,
regulations and statures. The Outdoor Advertising Manual was developed to
provide a reference guide for persons concerned with those laws, statutes, codes
and ordinances applicable to outdoor advertising controls.
The Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) authorized
the use of transportation enhancement funds that included the removal of
nonconforming outdoor advertising signs, among other programs, from the
interstate and federal-aid primary highway system. Provisions pertaining to
enhancement funding under ISTEA were extended in 1998 under TEA21.
17.02 DEFINITIONS
389
Sign - Any outdoor sign, sign structure, display, light, device, figure, painting,
drawing, message, placard, poster, billboard, or other object which is designed,
intended, or used to advertise or inform. A sign includes any of the parts or
material of the structure, such as beams, poles, posts, and stringers, the only
eventual purpose of which is to ultimately display a message or other information
for public view. For the purpose of the outdoor advertising rules, the term "sign"
and its definition shall be interchangeable with the following terms: outdoor
advertising, outdoor advertising sign, outdoor advertising structure, outdoor
advertising sign structure, sign structure, and structure.
Lease -An agreement, in writing, by which possession or use of land or interests
therein is given for a specified purpose and period of time, and which is a valid
contract under North Carolina laws.
Leasehold Interest - The lessee’s interest is the present worth of the rent
difference when the contractual rent at the time of the appraisal is less than the
current market rent for a comparable site.
Illegal Sign - One which is erected and/or maintained in violation of the 1967
Outdoor Advertising Control Act or in violation of rules and regulations
promulgated by the Department of Transportation or in violation of local
zoning ordinances.
Conforming Sign - A sign legally erected in a zoned or unzoned commercial or
industrial area which meets all current legal requirements for erecting a new sign
at that site.
Nonconforming Sign -A sign which was lawfully erected but which does not
comply with the provisions of State law or rules passed at a later date or which
later fails to comply with State law or rules due to changed conditions. For the
purpose of the outdoor advertising rules, nonconforming signs also include those
signs which have become nonconforming pursuant to 19A NCAC 02E.1002(d) on
scenic byways which were part of the interstate or federal-aid primary highway
system as of June 1, 1991, or which are or become a part of the National
Highway System (NHS). Illegally erected or maintained signs are not
nonconforming signs.
Sign Conforming by Virtue of the "Grandfather Clause" - A sign legally erected
prior to the effective date of the Outdoor Advertising Control Act or prior to the
addition of a route to the interstate or federal-aid primary system or NHS in a
zoned or unzoned commercial or industrial area which does not meet all current
standards for erecting a new sign at that site.
On-Premise/On-property Sign - A sign which advertises the sale or lease of the
property upon which it is located or which advertises an activity conducted or
390
product for sale on the property upon which it is located. An on-premise sign may
not be converted to a permitted outdoor advertising sign unless it meets all rules
in effect at the time of conversion request. An on-premise sign must be located
on property contiguous to the property on which the activity is located. Tracts not
considered to be contiguous include, but are not limited to:
(a)
Tracts of land separated by a federal, state, city , or public access
maintained road:
(b)
Tracts of land not under common ownership; or
(c)
Tracts of land held in different estates or interests.
Abandoned Sign - A sign that is not being maintained as required by the outdoor
advertising rules. The absence of a valid lease is one indication of an
abandoned sign. An outdoor advertising sign structure shall be considered to be
abandoned if for a period of twelve (12) months the sign has been without a
message, contains obsolete advertising matter, or is significantly damaged or
dilapidated. This category is noncompensable.
Zoned Commercial or Industrial Area - An area which is zoned for business,
industry, commerce, or trade pursuant to a state or local zoning ordinance or
regulation. Local zoning action must be taken pursuant to the state’s zoning
enabling statute or constitutional authority in accordance therewith. Zoning which
is not part of comprehensive zoning or which is created primarily to permit
outdoor advertising structures shall not be recognized as valid zoning for
purposes of the Outdoor Advertising Control Act and the rules promulgated
thereunder, unless the land is developed for commercial or industrial activity as
defined under 02E.0203(5).
Unzoned Commercial or Industrial Area - An area which is not zoned by state or
local law, regulation, or ordinance, and which is within 660 feet of the nearest
edge of the right of way of the interstate or federal-aid primary system or NHS, in
which there is at least one commercial or industrial activity that meets all
requirements specified in 02E.0203(5).
Highway - A highway that is designated as a part of the interstate or federal-aid
primary highway system as of June 1, 1991, or any highway which is or
becomes a part of the National Highway System (NHS). A highway shall be a
part of the National Highway System on the date the location of the highway has
been approved finally by the appropriate federal authorities.
For other definitions, refer to the Department’s Outdoor Advertising Manual, 19A
NCAC 2E.0200 and G.S. 136-128.
391
17.03 OUTDOOR ADVERTISING CONTROL
The Roadway Maintenance Unit of the Division of Highways is responsible for
the permitting of outdoor advertising signs and the control of outdoor advertising
statewide in compliance with the Outdoor Advertising Manual. The Right of Way
Branch will be responsible for the purchase and removal of nonconforming
outdoor advertising signs on authorized sign removal projects as outlined in GS
136-131 or will be responsible for the certification of acquisition/purchase of
nonconforming outdoor advertising signs by local authorities as outlined in GS
136-131.1.
General Statute 136-131 "Removal of existing nonconforming advertising."
authorizes the Department of Transportation to acquire by purchase, gift, or
condemnation all outdoor advertising, lawfully existing or erected, and all
property rights pertaining thereto prohibited under the provisions of GS 136129, 136-129.1 or 136-129.2 and in compliance with GS 136-140 "Availability of
federal aid funds".
General Statute 136-131.1. "No municipality, county, local or regional zoning
authority, or other political subdivision, shall without the payment of just
compensation in accordance with the provisions that are applicable to the
Department of Transportation as provided in paragraphs 2, 3, and 4 of G.S. 136131, remove or cause to be removed any outdoor advertising adjacent to a
highway on the National System of Interstate and Defense Highways or a
highway on the Federal-aid Primary Highway System for which there is in effect a
valid permit issued by the Department of Transportation pursuant to the provisions of Article 11 of Chapter 136 of the General Statutes and regulations
promulgated pursuant thereto."
General Statute 136-132 "Condemnation procedure" states that the Department
of Transportation shall use the procedure for condemnation of real property as
provided by Article 9 of Chapter 136 of the General Statutes for the
condemnation of nonconforming outdoor advertising signs.
NOTE: The procedures for the purchase and removal of nonconforming signs
under the Outdoor Advertising Control Act are different from those procedures
used for the acquisition of signs under eminent domain land acquisition as
outlined in Section 9.01 of this Manual.
17.04 PROGRAMMING AND AUTHORIZATION
Outdoor advertising sign removal projects will be programmed and authorized
through the Enhancement/Highway Agreements Unit of the Programming and
TIP Branch of the Division of Highways. The Enhancement Advisory Council will
392
review and propose projects for enhancement funding to include those involving
outdoor advertising sign purchase and removal. The actual purchase and
removal of billboards and outdoor advertising signs cannot begin until
authorization has been received from the Enhancement/ Highway Agreements
Unit.
If a reimbursable enhancement grant is authorized whereby a municipality or
other local authority will be responsible for the purchase of an outdoor advertising
sign and its removal, the Right of Way Branch will insure the purchase is in
compliance with G.S. 136-131.1 and will properly certify that Federal-aid
acquisition regulations have been followed.
17.05 VALUATION
The method of valuation for outdoor advertising signs being purchased under the
federal Highway Beautification Act of 1965 and the state Outdoor Advertising
Control Act may involve the valuation of the sign structure itself, the valuation of
the leasehold interest of the owner of sign structure in the property where the
structure is situated, and the valuation of the leased fee interest of the property
owner where the structure is situated.
Of the acceptable methods of appraising, the preferred method of valuing the fair
market value of the sign structure is the cost approach or the "reproduction cost
new less depreciation" approach. In the event the income approach to valuing a
sign is deemed most appropriate for use in determining fair market value of a
sign structure, only the reasonable net rental income attributable solely to that
structure, with no consideration given for business operation expenses or
income, should be capitalized. The method of valuing a sign using a gross
income multiplier is not considered acceptable since it involves such items as
business operation expenses and income, advertising contracts and revenues,
and permits and licenses.
The method of valuation the fair market value for the leasehold interest will be
based on the difference between the fair market rental value of the leased
premises and the rent actually reserved in the lease. The value of this differential
is referred to as the "bonus value" of the lease because if the fair market rental
value is greater than the actual rent being paid by the lessee, the lessee would
be receiving a "bonus" under the lease terms which, when projected over the
remaining term of the lease and discounted to its present worth, would constitute
damages which the lessee would be entitled to recover.
The method of valuing the leased fee interest of the property owner on which a
sign structure owned by others is located shall be limited to the difference in the
fair market value of the entire tract immediately before and immediately after the
taking of the right for the sign structure to be maintained on that property, taking
393
into account any special or general benefits accruing to the property by reason of
the acquisition. If the property owner is also the owner of the sign structure,
compensation to the owner shall be limited to fair market value of the sign
structure plus the difference in the fair market value of the entire tract
immediately before and immediately after the taking of the right for the sign
structure to be maintained on that property, taking into account any special or
general benefits accruing to the property by reason of the acquisition.
If an appraisal involves the valuation of the sign structure and its leasehold
interest and the valuation of the sign site, separate values should be allocated
for the sign interests and the site interests.
For nominal valued nonconforming signs, the negotiation of reasonable
payments for the removal of these signs will be allowed as follows:
1. For signs up to $1,000.00
2. For sign sites up to $250.00
An experienced Agent may negotiate, without prior review or approval, on the
above basis using his/her knowledge of material and labor costs and familiarity
with prevailing land values in the area. A record of the sign and site, similar to
the form shown in FRM17-D, should be completed by the Agent and submitted
with the Final Report requesting payment for the sign and/or site. The applicable
outdoor advertising sign and/ or site agreement (FRM17-A and FRM17-B) will be
secured from the owner(s). Signs in this category may be retained by the sign
owner or other party as part of the consideration for its removal. Note that
payment for the sign shall not be requested until its removal has been verified by
the Agent.
17.06 NEGOTIATIONS
Upon receipt of authorization to purchase signs under provisions of the federal
Highway Beautification Act of 1965 and the state Outdoor Advertising Control
Act, the Right of Way Agent will contact the appropriate District Engineer and
obtain a copy of the permit issued by the Department of Transportation for each
sign to be purchased. In addition, the Agent will confirm that the sign is
nonconforming and obtain the proper ownership information for the property
where the sign is situated. A picture of the sign will be taken.
After verifying the ownership of the sign, the Agent will contact the owner to
advise that the sign will be purchased under the Outdoor Advertising Control Act
provisions and provide the owner with a Legal Rights Brochure. A copy of the
sign owner’s lease with the owner of the property on which the sign is located
should be obtained during this contact. If a copy of a lease is not available, the
Agent should attempt to obtain a copy of a cancelled check in payment of rent to
394
the property owner or other information to establish a lease and legality of the
sign. An ND 1 (see FRM17-E) will be completed upon completion of the initial
contact.
After the initial contact, the Agent shall request an appraisal from the Appraisal
Unit for the value of the sign and its leasehold interest in the property on which it
is situated and for the value of the property owner’s leased fee interest in site on
which sign is located. Separate values for the value of the sign structure and
leasehold interest and for the value of the leased fee interest of the property
owner should be provided. A copy of the sign permit, its lease, a cancelled
check, or other documentation regarding the legal status of the sign, a picture of
the sign with information as to its location, and property ownership information
should accompany the appraisal request.
Upon receipt of the approved appraisal, the Agent will make an offer to the owner
of the sign using the summary statement sample letter shown on FRM17-F and
negotiate the claim for purchase of the sign in the same manner as on claims on
a typical right of way project. The purchase of signs shall be handled by
agreement with the owner as shown in FRM17-A. On the agreement, the
signature of the sign owner should be attested or witnessed; however, it will not
be necessary to notarize the agreement since it will not be recorded.
The sign owner may retain the sign structure for a retention value to be
determined in accordance with Section 9.45 of this Manual. If the sign is to be
retained, the paragraph pertaining to retention contained in the agreement with
the owner shall be completed. If the owner does not wish to retain the sign, the
paragraph pertaining to retention should be marked accordingly. The time period
for the owner to remove a retained sign from the site should be as short as
possible but shall not exceed 90 days.
The site owner, the owner of the real property on which the sign is situated,
should be contacted after a satisfactory agreement has been reached with the
owner. This contact may be a personal contact or a contact by letter in which an
offer (see FRM17-G and 17H) for the property owner’s interest in the sign and/or
the site on which it is located is made. The site owner need not receive a Legal
Rights Brochure.
If the site owner settles this matter, an agreement as shown in FRM17-B will be
executed. The signatures of the site owner should be attested or witnessed;
however, it will not be necessary to notarize the agreement since it will not be
recorded. If the site owner does not settle this matter after two contacts
following the offer, the file with the site owner will be closed in most cases
without condemnation being initiated. Some exceptions or questions may
appear and in these cases the State Negotiator’s Office should be contacted.
395
In the event that condemnation proceedings are deemed necessary for the
purchase of the sign or the site, those procedures as outlined in Chapter 13 of
this Manual shall be followed.
NOTE: Relocation benefits do not apply to the acquisition and removal of
nonconforming signs under the Highway Beautification Act of 1965 and the
Outdoor Advertising Control Act.
17.07 PROCESSING AND PAYMENT
Final reports of payments to the sign owner and the site owner shall be submitted
in accordance with the procedures outlined in Chapter 12 of this Manual. Permit
numbers for the sign(s) shall be incorporated into the final report(s) for the sign
owner and the site owner.
If the sign owner retains the sign, the final report should not be submitted for
payment until the sign has actually been removed by the owner or the
Department of Transportation if the owner retained the sign and later abandoned
same before removal.
Warrants for payment of the acquisition of the sign and site interest may be
mailed, return receipt requested, to the sign owner and the site owner.
After acquisition of the sign has been completed, the District Engineer should be
notified of the acquisition of any nonconforming signs by the Department and
advised that no permits shall be issued for that/those site(s) in the future.
17.08 REMOVAL OF BILLBOARDS/OUTDOOR ADVERTISING
SIGNS
In those instances where settlement has been made on the basis of the sign
not being retained, or in those instances where the owner does not remove the
sign as agreed upon thereby abandoning it, the Agent should make provisions
or contract for the removal of the sign(s). After removal of the sign(s) has been
accomplished, the Agent can then request payment for the purchase of the
sign(s).
PART 2 – JUNKYARD CONTROL
396
17.09 BACKGROUND INFORMATION
The Highway Beautification Act of 1965, Public Law 89-285, provided for the
control of junkyards by the states in areas adjacent to the Interstate and FederalAid Primary Systems within 1,000 feet of the nearest edge of the right of way and
visible from the main traveled way. Interstate and Federal-Aid Highways inside
an urban area are excluded
Pursuant to the Federal legislation, the General Assembly of North Carolina in
1967, enacted the Junkyard Control Act, Article 12, General Statutes 136-141
through 136155. General Statute 135-155 provides that the Department of
Transportation shall not be required to expend any funds for the regulation of
junkyards until Federal funds were made available to the states and the
Department of Transportation has entered into an agreement with the U. S.
Secretary of Transportation as provided for by the Highway Beautification Act of
1965. This agreement was entered into on June 27, 1973, and any junkyard
established after this date must be in accordance with provisions of the Junkyard
Control Act.
17.09 PURPOSE
The regulation, control, and acquisition of junkyards under the Highway
Beautification Program in North Carolina have a two-fold purpose.
First, by complying with Federal legislation to insure that the State of North
Carolina receives its full share of Federal-Aid Highway Funds. If the state did not
comply with the Federal Highway Beautification Program, the state would be
penalized by forfeiting 10% of its allotted Federal-Aid Highway Funds.
Second, to provide the traveling public in North Carolina with a safe, convenient,
and enjoyable system of roadways free from unreasonable and unsightly
distractions, and to preserve and enhance the natural and scenic beauty of the
state.
17.10 DEFINITIONS
1. Junkyard - A junkyard is an establishment or place of business which is
maintained, operated or used for storing, keeping, buying, or selling junk,
or for the maintenance or operation of an automobile graveyard. This
definition includes scrap metal processors, auto-wrecking yards, used
salvage yards, scrap yards, auto-recycling yards, used auto parts yards
and temporary storage of automobile bodies or parts awaiting disposal as
a normal part of business operation when the business will continually
have like materials located on the premises. The definition includes
397
garbage dumps and sanitary landfills. The definition does not include
litter, trash, and other debris scattered along or upon the highway or
temporary operations and outdoor storage of limited duration.
2. Automobile Graveyard - An automobile graveyard is an establishment or
place of business which is maintained, used, or operated for storing,
keeping, buying, or selling used, wrecked, or scrapped, ruined, or
dismantled motor vehicles or motor vehicle parts. Ten or more such
vehicles will constitute an automobile graveyard.
3. Illegal Junkyard - An illegal junkyard is one which was established or is
maintained in violation of State law.
4. Nonconforming Junkyard - A nonconforming junkyard is one which was
lawfully established, but which does not comply with the provisions of the
State law or State regulations due with the provisions of State regulations
due to changed conditions. An example of changed conditions would be
a junkyard lawfully in existence in an area which at a larger date
becomes non-industrial, and thus subject to control, or a junkyard
established on a secondary highway later upgraded to a primary
highway. Illegally established junkyards are not nonconforming junkyards.
5. Junk -Old or scrap metal, rope, rags, batteries, paper, trash, rubber,
debris, waste, or junked, dismantled, or wrecked automobiles, or parts
thereof.
6. Main Traveled Way - The traveled way of a highway on which through
traffic is carried. In the case of a divided highway, the traveled way of
each of the separated roadways for traffic in opposite directions is a main
traveled way. It does not include such facilities as frontage roads, turning
roadways, or parking areas.
7. Interstate System - mean that portion of the National System of Interstate
and Defense Highways located within the State, as now officially
designated, or as may hereafter be so designated as Interstate System
by the Department of Transportation, or other appropriate authorities. As
to highways under construction so designated as Interstate highways
pursuant to the above procedures, the highway shall be a part of the
Interstate system for the purpose of this Article on the date and location
of the highway has been approved finally by the appropriate Federal
authorities.
8. Primary System - Means that portion of connected main highways, as
now officially designated, or may hereafter be so designated as primary
system by the Department of Transportation or other appropriate
authorities. As to highways under construction so designated as FederalAid Primary Highways pursuant to the above procedures, the highway
398
shall be a part of the Federal-Aid Primary System for the purposes of this
Article on the date the location of the highway has been approved finally
by the appropriate Federal or State authorities.
9. Unzoned Area - Shall mean an area where there is no zoning in effect.
10. Unzoned Industrial Area - An area where there is no zoning in effect and
which is used primarily for industrial purposes as determined by the State
and approved by the Federal Highway Administration. An unzoned area
cannot include areas which may have a rural zoning classification or land
uses established by zoning variances or special exceptions.
11. Visible - Means capable of being seen without visual aid by a person or
normal visual acuity.
12. Industrial Zones - Those districts established by zoning authorities as
being most appropriate for industry or manufacturing. A zone which
simply permits certain industrial activities as an incident to the primary
land use designation is not considered to be an industrial zone. The
provisions of 23 CFR 750 Subpart G relative to Outdoor Advertising
Control shall apply insofar as industrial zones are concerned.
17.11 PROGRAMMING AND AUTHORIZATION
North Carolina’s Junkyard Control Program may consist of one or any
combination of the following:
1. Screening from the view of the motoring public through the use of natural
objects, plantings, fences, or other appropriate means.
2. Removal and/or relocation of the junkyard to suitable legal site.
3. Recycling of junk and scrap metal by the State or by an authorized
private agency.
Authorization to proceed with a junkyard control project my be given when the
State submits a written request to the Federal Highway Administration which
includes the following:
1. The zoning and validation of the legal status of each junkyard project.
2. The control measures proposed for each junkyard including, where
applicable, information relative to permanent disposal sites to be
acquired by the State.
399
3. The real property interest to be acquired in order to implement control
measures.
4. Plans or graphic displays indicating
a.
b.
c.
d.
e.
the location of the junkyard relative to the highway
the 1,000 feet control lines
property ownership boundaries
the general location of the junk or scrap material
any buildings, structures, or improvements involved.
5. Where screening is to be utilized; the type of screening, adequately
detailed plans and cross sections or other adequate graphic displays
which illustrate the relationship of the motorist, the screen, and the
material to be screened at critical points of view.
17.12 PROCEDURES FOR SCREENING, REMOVAL OR
RECYCLING OF JUNKYARDS
A.
Screening
Every effort shall be made to screen the junkyard where the junkyard is to
continue as an on-going business. Selection of junkyard sites to be screened
shall be made by the Landscape Branch of the Department of Transportation.
The screens may be erected on the State’s right of way or they may be erected
outside the right of way on the real property owned or leased by the junkyard. In
the latter case, the Department of Transportation is authorized to acquire fee
simple title or any lesser interest in the real property for the purpose of erecting
adequate screening. Acquisition may be by donation, by purchase, or by
condemnation. In the event of acquisition of a permanent or temporary
easement by purchase or condemnation, the property for the purpose of erecting
a screen, just compensation shall be paid to the owner or owners of the property.
Valuation of the site is to be established by an appraisal made by or through the
Appraisal Section of the Department of Transportation in accordance with
procedures set forth in Chapter 5 of the Right of Way Manual.
Negotiating diaries shall be kept on all projects and negotiations for the
acquisition of the easements by donation, purchase, or condemnation shall be
conducted in accordance with negotiating procedures as set forth in Chapter 12
of the Right of Way Manual, and as follows:
1. An initial contact with the junkyard owner and/or any parties who hold an
interest in the property is to be made by a Right of Way Agent. The
agent is to inform the parties that the junkyard has been selected for
400
screening, explain thoroughly the screening project, and provide the
parties with a letter informing them of their legal rights (see FRM17-J).
The results of this contact are to be recorded in the Negotiating Diary
(see FRM17-K).
2.
All subsequent contracts made by the Right of Way Agent in connection
with the screening project are to be recorded in the Negotiating Diary in
the same manner as a normal right of way acquisition. A sample copy of
the agreement used for acquisition of easements for screening is shown
as (FRM17-L). In those cases where offers of compensation are made,
the agent will provide the owner with a summary statement (see FRM17M). Also, once a screening project has been completed and the
junkyard brought into compliance with the Junkyard Control Act, the
agent will forward to the owner of the junkyard a letter (see FRM17-N),
advising him that he is in compliance and it will be his responsibility
henceforth to stay in compliance.
B. Removal and/or Relocation
Nonconforming junkyards to be removed or partially removed to another site are
also selected by the Landscape Branch. After this has been done and the
necessary plans are prepared, the Right of Way Branch will acquire such
interests in the property and/or relocation. The procedures for acquiring these
interests will be the same as that for normal right of way acquisition.
C. Recycling
Consistent with the goals of the National Environmental Policy Act of 1969,
recycling of junk and scrape is to be encouraged to the greatest extent
practicable in the implementation of the Junkyard Control Program. Recycling
should be considered in conjunction with other control measures. To facilitate
recycling, junk, or scrap should be moved to an automobile wrecker, or a scrap
processor, or put to some other useful purpose. This can be accomplished either
through negotiation with the owner or by the Department of Transportation after
making the necessary arrangements for the acquisition of the scrap from the
owner.
17.13 RELOCATION ASSISTANCE
Relocation assistance benefits as provided for under the "Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970" is available as
follows:
1. The actual reasonable moving expenses of the junk, actual direct loss of
401
tangible personal property, and actual reasonable expenses in searching
for a replacement business or, if eligibility requirements are met, a
payment in lieu of such expenses.
2. Relocation assistance in locating a replacement business.
3. Moving costs of personal property from a dwelling and relocation
assistance in locating a replacement dwelling, provided the acquisition of
the real property used for the business causes a person to vacate a
dwelling.
4. Replacement housing payments if the acquisition of the dwelling is found
by the Federal Highway Administration to be necessary for the Federallyassisted junkyard control project.
Procedures for administering assistance to relocatees will be the same as those
outlined in Chapter 15.
17.14 DOCUMENTATION FOR FEDERAL PARTICIPATION
In order for the State to receive Federal participation, it is necessary for our files
on each eligible junkyard to contain the following information:
1. Satisfactory evidence of ownership of the junk or junkyard or both.
2. Value or cost documentation (including separate interest, if applicable)
including proof or obligation or payment of funds.
3. Evidence that the necessary property interests have passed to the State,
and that the junk has been screened, relocated, removed, or disposed of
in accordance with the provisions of this directive.
4.
If a dwelling has been acquired by condemnation, evidence that the
costs involved are not included in the State’s claim for participation.
402
03
Chapter 18 TITLE VI COMPLIANCE PROGRAM
18.01 INTRODUCTION
The Right of Way Branch of the Division of Highways has prepared procedures in the
compliance with the Standard Department of Transportation Title VI Assurances
executed by the State Highway Commission in November 1971 and its policies and
procedures developed in cooperation with the Federal Highway Administration to insure
that no person is denied his rights on account of race, color, religion, sex, or national
origin. These procedures in brief form are as follows: "North Carolina Division of
Highways, in accordance with Title VI of the Civil Rights Act of 1964, hereby notifies all
bidders that it will affirmatively insure that in any contract entered into pursuant to this
advertisement, minority business enterprises will be afforded full opportunity to submit
bids in response to this invitation and will not be discriminated against on the grounds of
race, color, religion, sex, or national origin in consideration for an award." This
statement shall be inserted in all solicitations for letters of interest, bids, proposals for
contracts, etc.
18.02 TITLE VI COMPLIANCE OFFICER
The Right of Way Unit has designated the State Administrative Agent of Right of Way
as the Title VI Compliance Officer whose responsibilities will include but not be limited
to:
•
•
•
•
•
•
•
Coordination of the Title VI Compliance Program within the branch
Internal Review and Evaluation
Compliant investigation
Assuring that appropriate clauses as required by the Assurances are inserted in
all
documents specified within the Assurances
Preparation of reports
Hold staff meetings to keep the Right of Way Unit Personnel informed on Title VI
responsibilities
Assuring that the notification as required by the Assurances is inserted in all bids
for work or material, and in adopted form in all proposals for negotiated
agreements. Establishment of programs to encourage the involvement of
minority contractors, consultants, fee attorneys, fee appraisers, property
management firms, etc.
403
18.03 APPRAISALS
The Right of Way Unit of the Division of Highways contracts with independent Real
Estate Appraisers on a personal service contract basis. Each appraiser under contract
is required to have on file with the Appraisal Unit an Experience Questionnaire, Form
5.009, as shown as FRM5-A in Chapter 5 of this Manual. Employment of fee appraisers
is not based on race, color, religion, sex, or national origin, but is based on certification
with the North Carolina Appraisal Board, professional training, education, experience,
evaluation of previous work, availability to complete assignment within project schedule
time limits, and effectiveness as a witness in court. The responsibility for selecting and
employing Fee Appraisers is that of the Area Appraiser, and subject to the approval of
the State Appraiser. The Appraiser is required to comply with regulations relative to
nondiscrimination in Federally assisted programs of the U. S. Department of
Transportation, Title 49, C.F.R., part 21. The "Required Contract Provisions For
Federal-Aid Contracts", as shown as Exhibit 18-A of this chapter, is incorporated into
and made a part of the Appraisal Contract, Form 5.011, as shown as FRM5-C in
Chapter 5 of this Manual. No appraiser makes any statement pertaining to race in the
appraisal report. All comparable sales and other market data used in the report will be
without distinction as to race, color, religion, sex, or national origin. The appraisers are
aware that no statement pertaining to race can be made in an acceptable appraisal
report. All appraisals are reviewed by Staff Review Appraisers who are instructed to be
alert for any indication of discrimination; and, if such discovered, to return the appraisal
for correction before it is accepted from the appraiser. Appraisals are reviewed in
accordance with Department of Transportation and Federal Highway Administration
policies and procedures and with the Uniform Standards of Professional Appraisal
Practice (USPAP). A properly prepared and reviewed appraisal of fair market value of
property, using the State, Federal and USPAP appraisal guidelines and procedures,
eliminates the possibility of discrimination on account of race, color, religion, sex or
national origin.
18.04 NEGOTIATION
The Right of Way Unit of the Division of Highways does not discriminate in the
acquisition of right of way. Policies and procedures set forth by the Federal Highway
Administration and as set out in the State’s Right of Way Manual are adhered to by the
Right of Way Unit to further insure that discrimination is not practiced in the acquisition
of right of way in North Carolina. Upon assignment of a project and prior to any
negotiation, the Negotiating Agent signs an affidavit on an ND-1 form, as shown as
FRM4-C in Chapter 4 of this Manual, in that each claim file which states that he/she has
no direct or indirect, past, present, or contemplated future personal interest in the
parcels or in any benefit from the acquisition of such property. Likewise, when
negotiations have been successfully completed, the Agent signs another affidavit on this
same ND-1 form in the claim file that states that (1) the written agreement secured
embodies all the considerations agreed upon between the negotiator and the property
404
owner, and (2) the agreement was reached without coercion, promises other than those
shown in the agreement, or threats of any kind whatsoever by either party.
The Right of Way Branch operates on an approved appraisal procedure whereby the
property owner is offered the exact amount of the appraisal which has been reviewed
and approved for negotiations. Prior to the appraisal being made, the Agent makes an
initial contact with the property owner during which the Agent presents the property
owner with a Legal Rights Brochure, shown as FRM4-G in Chapter 4 of this Manual,
which explains the legal rights of the owner as well as the acquisition procedures in
general. In this brochure, it is stated that the Department of Transportation must "Treat
all property owners and tenants impartially without regard to race, color, religion, sex or
national origin". As previously stated, right of way claims are based on the amount of
the approved appraisal. The amount of the offer will be set forth in a written Summary
Statement/Offer to Purchase form, shown as FRM10-B in Chapter 10 of this Manual,
which the Agent will present to the property owner or his/her representative when
making the offer to them. The Agent is required to maintain accurate written records of
all of the negotiations with the property owner and these become permanent parts of the
claim files. The Central Right of Way Office in Raleigh checks and reviews all right of
way claims, whether they are settled or condemned, which have been submitted by the
fourteen field offices, to insure that all acquisition procedures have been followed and
properly adhered to and, further, that instruments of conveyance, documentation of
negotiations and the amounts of offers and compensation are accurate. The negotiation
procedures and required documentation previously set forth insures that
all property owners in North Carolina are treated fairly and without prejudice regardless
of race, color, religion, sex, or national origin.
18.05 TITLE ATTORNEYS
Local attorneys who practice in the counties where the proposed highway projects are
located are contracted with to provide title examinations, certifications of ownership and
the closing services for right of way acquisition claims. By general statute (GS 136103.1. Outside counsel), these attorneys are selected and contracted with by the
Attorney General’s Office, Transportation Section, not through the Department of the
Right of Way Branch. Selection is not based on race, color, religion, sex, or national
origin.
18.06 RELOCATION
The Relocation Assistance Program does not discriminate against eligible persons in
providing relocation advisory assistance or in making relocation payments. Procedures
governing relocation assistance are consistent with Federal Law 91-646 as amended,
N.C.G. S. 133-5 and with 49 CFR Part 24 Uniform Relocation Assistance and Real
Property Acquisition for Federal and Federally Assisted Programs. The Relocation Unit
may provide many types of information concerning a proposed project. Among the first
requests for information is from the Project Development and Environmental Analysis
405
(PDEA) Branch which involves the preparation and submittal of a Relocation Report, as
shown as FRM15-E in Chapter 15 of this Manual. Following the completion of the
Relocation Report, additional information may be needed for the Public Hearing which
will be furnished by updating the report based on information indicated on the public
hearing map. This additional information will be submitted on Form 15.4 and identified
on the form as ’Design’. Statements concerning the Relocation Assistance Program are
presented at public hearings and Relocation Assistance Brochures are available to the
public at these hearings.
The statement presented at the public hearing specifically sets forth the following: "the
Division of Highways acknowledges that all replacement housing must be fair housing
and open to all persons regardless of race, color, religion, sex or national origin. This is
in addition to the requirement that replacement housing will be offered all affected
persons regardless of their race, color, religion, sex or national origin". The public
hearing statement also explains the services and payments available, the residential
and business moves, the replacement housing and increased interest payments, and
the right of a review of eligibility and/or payments to be received. The Relocation
Assistance Brochure, see FRM15-EEE in Chapter 15 of this Manual, explains the entire
relocation assistance program. This brochure is presented to the all persons who will be
displaced as a result of the construction of a highway project. Relocatees who have
particular problems are given special attention regardless of their race, color, religion,
sex, or national origin. In certain instances where concerns or problems are known to
exist, meetings have been held with minority groups so there would be a better
understanding of their needs and desires.
The Central Office is made aware of any particular situations which might require such
a meeting. If a person is dissatisfied with a determination as to his/her eligibility for
relocation assistance payments or to the amount of payment offered, that person may
request a review of his/her claim from the Manager of Right of Way. Procedures
pertinent to this review are contained in Review Procedures, in Chapter 15 of this
Manual.
18.07 PROPERTY MANAGEMENT
The phase of the right of way program dealing with property management involves
several
areas where civil rights compliance is necessary. These areas are listed below and
the civil rights provisions, "Required Contract Provisions For Federal-Aid Contracts",
shown as FRM18-A of this Chapter, have been incorporated into all agreements and
contracts pertinent to these areas to insure compliance.
1. Property Rental - Where time permits, the rental property acquired for a
project is generally handled by a Property Management Company employed
by the Right of Way Unit.
406
In those situations where the property was owner/occupied and time permits for the
rental of the property after being vacated by the original owner, a Property Management
Company is secured who is reputable and generally handles comparable property in
the area. In some areas it is difficult to secure a firm interested in handling rental
properties for the Right of Way Unit due to the short-term nature of the rentals and the
limited number of properties to be handled. A copy of the Management Agreement is
shown in Chapter 14 of this Manual.
2.
Sale of Improvements - When improvements acquired by the Department on a
project are advertised for sale, the civil rights reference as follows is included in
the advertisement: "The (Division of Highways) in accordance with Title VI of
the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. 2000d. to 2000d. -5 and
Title 49, Code of Federal Regulations, Department of Transportation, Sub. Title
A, Office of the Secretary, Part 21, Non-Discrimination in Federally assisted
programs of the Department of Transportation issued pursuant to such Act,
hereby notifies all bidders that it will affirmatively insure that in any contract
entered into pursuant to this advertisement, minority business enterprises will
be afforded full opportunity to submit bids in response to this invitation, and will
not be discriminated against on the grounds of race, color, religion, sex, or
national origin in consideration of an award". This advertisement containing the
above references appears in two consecutive issues of a daily or weekly paper
generally circulates in the county in which the property is located. Any
individuals, who may have previously expressed an interest in improvements
on a project, are also sent a bid form and copy of the advertisement. A copy of
the Bid Form is shown in Chapter 14 of this Manual.
3.
Grave Removal - The Proposal and Contract for Grave Removal, as shown
asFRM14-U in Chapter 14 of this Manual, is used for the removal from a project
of an entire cemetery or portion thereof or several graves. In the removal
operation, bids are solicited from qualified firms and contractors. This type of
work is not generally participated in by all funeral establishments due to either a
lack of interest in this type of work or a lack of equipment and manpower to
accomplish the job. Contracts are awarded on the basis of the low bid and the
solicitation of bids by advertising is handled similar to the advertisement for the
sale of buildings in Item 2 above.
4.
Rodent Control - These proposals and contracts are special in nature. Local
extermination companies will be contracted for this type of work in order to
secure bids. Due to the manner in which this work must be accomplished,
continuing over an extended period of time, our limited experience indicates
that most companies are not interested in bidding on this type of work. A copy
of this Proposal and Contract for Rodent Control is shown as FRM14-B in
Chapter 14 of this Manual.
5.
Demolition - Demolition contracts, where Federal participation is involved, are
handled the same as general construction projects with the same non-
407
discriminatory provisions and practices applying to these proposals and
contracts as apply to all projects advertised by the Roadway Design Unit of the
Division of Highways. A copy of the Proposal and Contract for Demolitions is
shown as FRM14-L and FRM14-M in Chapter 14 of this Manual.
6.
Surplus Property - In the disposal of surplus property owned by the Division of
Highways, the Federal Highway Administration must be given proper credit for
the value of surplus property when a claim is processed with the profitable or
unprofitable sale of the residue at a later date becoming the responsibility of the
Division of Highways. In all instances where property is advertised for sale
and/or bids are solicited, no discriminatory practices are employed by the Right
of Way Unit and no persons are denied their rights of participation in the
Federal-aid program. Procedures for the disposals of surplus properties are
outlined in FRM14-DD of Chapter 14 of this Manual.
7.
Asbestos Inspections, Abatement and Structure Clearings - In order to deliver
asbestos free structures on highway projects to the successful roadway
contractors, the Right of Way Unit has implemented a program whereby all
structures acquired during right of way acquisition will be inspected for the
presence of asbestos and if found, measures to remove or abate its presence in
accordance with prevailing environmental requirements will be undertaken.
Abatement of asbestos must be accomplished prior to the demolition or
clearance of structures from the right of way by the Department or the roadway
contractors. In order to accomplish the asbestos inspections, abatement and
structure clearings, the Department may advertise for asbestos services on
individual claims or use the services of contractors under open-ended asbestos
services contracts approved by the Board of Transportation. A copy of the
Agreement for Asbestos Inspections, Abatement and Structure Clearings is
attached as FRM18-B in this chapter of the Manual.
18.08 RIGHT OF WAY CONSULTANT CONTRACTS
In order to meet acquisition workloads, the employment of right of way consultants may
be necessary to accomplish the acquisition of rights of way on designated highway
projects. The procedures for contracting right of way consultants are contained in the
North Carolina Administrative Code at 19A NCAC 02B.0164 Use of Right of Way
Consultants and are incorporated into Section 3.75 Acquisition by Consultant Contract
of this Right of Way Manual. Provisions for Compliance with Title VI of the Civil Rights
Act of 1964, as well as provisions for Equality Opportunity and Participation by
Disadvantaged and Women-Owned Business Enterprises, are incorporated into the
Proposal and Contract for Right of Way Consulting Services. A copy of this Proposal
and Contract for Right of Way Consulting Services is attached as FRM18-C of this
chapter.
408
18.09 BRANCH POLICIES
Qualified applicants from minority group persons for employment in the Right of Way
Branch shall be considered along with other qualified applicants. A concerted effort is
made by the Branch to employ qualified minority group persons. Periodic meetings are
held with acquisition agents and Branch personnel at which time Title VI and Title VIII
requirements pertinent to right of way acquisitions are reviewed.
409
APPENDIX A: CHANGE LOG
Version 1.0.0
Created manual in PDF format.
Version 1.0.1
Updated Chapters 2 and 14. Changed
‘State Relocation Agent’ to ‘Relocation
Coordinator’ throughout manual.
Version 1.0.2
Corrected FRM12-E.
Version 1.0.3
Revised FRM14-K, L, and U. Revised
FRM7-A,B, and N. Revised FRM10-F.
Updated to new standard.
Version 1.1.0
Revised Chapters 4,7, and 9.
Renamed all forms to reflect new
naming convention.
Version 1.1.1
Replaced Chapter 15 forms with
updated versions. Replaced Chapter 7
forms with updated versions. Revised
Chapter 7 text. Replaced FRM3-A.
Updated Appendix C. Revised Chapter
12 and 13 Final Reports.
Version 1.2.0
Revised Chapter 15 and Chapter 15
forms. Updated Advance Acquisition
section in Chapter 3. Updated
Disposition of Billboards section in
Chapter 9. Updated Administrative
Adjustment Authority section in
Chapter 10. Updated ROW claims of
25K or less section of Chapter 4.
Replaced FRM9-B and FRM13-A.
Version 1.2.1
Removed FRM7-B_rev. Revised
FRM10-A and FRM10-B. Added
FRM14-EE (Grass Cutting Contract).
Updated Appendix A: Change Log.
Added and updated Appendix B: File
Naming Convention. Removed
FRM13-C.
Version 1.2.2
Added Septic Systems section to
Chapter 9. Added FRM9-L, FRM9-M,
and FRM9-N. Revised Administrative
Adjustments section of Chapter 10.
Replaced all Chapter 5 Appraisal forms
with current versions. Replaced
FRM4-B.
Version 1.2.3
Modified information under
Administrative Adjustments in Chapter
10.
Version 2011.03.01
Modified manual layout. Major updates
to all content in all chapters.

Similar documents

×

Report this document