2008 Right Of Way and Utilities International Scanning Tour – Australia and Canada

Summary Report

Overview

An effective transportation system is an essential requirement for developing and maintaining the economic strength of organized society. Planning, designing, and executing successful transportation projects requires the application of sound strategies to ensure the optimum use and management of scarce resources while, at the same time, addressing a variety of constraints and challenges, many of which are external to the agencies responsible for developing the projects.

Many transportation projects require the acquisition of land and other property interests as well as proper consideration for the accommodation and/or potential relocation of existing utility facilities within the right of way. A critical requirement for the successful completion of those projects is the judicious application of sound engineering and management principles during the right of way and utility processes. These requirements are particularly evident in urbanized areas where there is a more intensive land use and project costs related to right of way acquisition and utility relocation tend to be greater.

Managing acquired right of way assets and the accommodation of utilities within those assets is a continuous activity at transportation agencies. Nationwide, transportation agencies are responsible for managing millions of acres of land that provide right of way to transportation corridors. Managing this extensive and valuable right of way asset involves considerable resources and integration of numerous business processes, a sample of which includes determining right of way boundaries; inventorying roadside features; preparing right of way maps; buying, selling, and leasing assets; regulating the accommodation of utilities within the right of way; and preparing reports documenting right of way assets. In general, ready access to right of way asset data is a key requirement not just to streamline project delivery but also to effectively manage the right of way asset throughout the lifetime of a transportation facility.

In September 2008, the International Scanning Study Team visited Australia and Canada to learn about innovative practices on right of way and utility processes that might be applicable for implementation in the United States. The study team visited four state transportation agencies in Australia: The Road and Traffic Authority (RTA) in Sydney, New South Wales (NSW); the Department of Main Roads in Brisbane, Queensland; the Department for Transport, Energy, and Infrastructure (DTEI) in Adelaide, South Australia; and the Roads Corporation (VicRoads) in Melbourne, Victoria. In Canada, the study team visited Alberta Transportation in Edmonton (Alberta) and the Ministry of Transportation of Ontario (MTO) in St. Catharines. The 2008 scanning tour to Australia and Canada complemented an earlier scanning tour of European countries in 2000, which covered Norway, Germany, The Netherlands, and the United Kingdom.

Objectives for the 2008 scanning tour included the following:

• Alternative Project Delivery Methods. To determine the experience of other nations with public-private partnerships and other alternative project delivery methods to address right of way and utility needs, and how integration of right of way and utility processes with design and construction has improved project delivery including cost, schedule, and quality.

• Long-Range Planning Process. To determine how other nations coordinate right of way and utility activities with the planning process to identify critical future transportation (highway) corridors, manage right of way acquisition and utility relocation costs (e.g., by using corridor preservation and access management techniques), and identify the impact of right of way and utilities on project schedule, funding, and programming.

• Design Process. To identify how other nations coordinate right of way and utility activities with the project development process to reduce costs and delays associated with late plan changes, addition of required parcels, changes in access requirements, and accommodation of utilities.

• Environmental Process. To determine how other nations coordinate right of way and utility activities with the environmental process to facilitate construction permit approvals, acquire land for environmental mitigation, acquire parcels containing contaminated or hazardous materials, streamline the project development process, and minimize environmental and project development impacts.

• Utility Property Right Acquisition and Accommodation. To determine how other nations acquire and accommodate property rights and facilities owned by utility companies as a component feature of the planning, environmental, and design processes; coordinate utility relocation activities to accelerate project delivery, and manage relationships and conflicts with other stakeholders, e.g., railroads.

• Right of Way Property Asset Management Strategies. To determine how other nations manage right of way assets, including the implementation of performance measures; technology-based tools to inventory, track, and manage assets; and methods to maximize benefits from right of way assets, including non-traditional strategies such as revenue generation and multiple public uses.

• Project Team, Training, and Professional Development Strategies. To identify how other nations integrate right of way and utility professionals into the project development and delivery process, and what techniques and strategies those nations follow to address the urgent need for succession planning through recruitment, retention, education, and professional development.

To assist in the discussion with host country officials, the study team prepared a series of amplifying questions in advance of the scan tour to provide additional insight about the motivation and objectives of the scan.

Summary Of Findings

Australia

Lessons learned from the visits to RTA, Main Roads, DTEI, and VicRoads include the following:

• Business approach to operations and emphasis on good working relationships. The study team perceived a strong emphasis on entrepreneurship and the application of sound business principles to department of transportat ion (DOT) operations, including right of way and utility coordination. Examples of business approach strategies include an emphasis on strategic planning, a clear understanding of the agency’s mandate to maintain high levels of performance and customer satisfaction, managing transportation facilities taking into consideration long-term right of way needs, and understanding of the critical need to develop and maintain good working relationships with other stakeholders of the road reserve. An emphasis on effective communications, appropriate performance measurement and customer satisfaction has resulted in some of the agencies visited being among the highest ranked in their states in terms of public satisfaction with their performance.

• Alliance contracting approach. The alliance contracting approach is gaining popularity in Australia, particularly in situations where there are significant uncertainties regarding the optimum solution for a project, more specifically when there are unpredictable risks, the project is difficult to scope and/or it is difficult for tenderers to price, there is pressure on time, and the state is looking for breakthroughs and innovation.

In the alliance approach, the transportation agency uses an early contractor involvement model that focuses on assembling and integrating the best possible leadership, management, and project execution teams based on qualifications and prior experience. Following a "best for project" approach, each team could include participants from the the selected consortium and/or the transportation agency, depending on the specific expertise area.

An early contractor involvement approach means the alliance team is involved during the project scoping and design phases. Because there is no bidding at the end of the design phase (since the consortium was selected earlier), the alliance approach requires transparent communications between the parties, particularly in regards to compensation and cost structures. Strategies to achieve this goal include establishing a fee structure for all direct project costs that uses open-book accounting and is viewable by all parties, a separate corporate overhead and profit calculation, and clearly established gainshare/painshare arrangements. Gainshare provisions include establishing how to share any net monetary savings at the conclusion of the project.

In general, the alliance team has the responsibility to coordinate effectively with utilities early and find "optimum" relocation strategies. There is only one team interacting with utilities during the design and construction phases. The alliance team also presents a unified front for dealing and negotiating with property owners.

• Training and professional development. Australian states use a variety of approaches to promote training and professional development opportunities. For example, several universities offer formal educational programs for property valuers. A typical program offers a degree with a major in property and is 3 years long full time. Coursework usually covers areas such as accounting, construction, property valuation, contract law, statistics, business finance, marketing, geographic information systems (GIS), property economics, property law, planning and environmental law, and property and asset management.

In New South Wales, the NSW Streets Opening Conference sponsored the development of a pilot training course for transportation and utility personnel who are involved in the location of utility facilities in the field. The training course is providing the foundation for a formal accreditation process for utility location services.

Through VicRoads International (VRI), VicRoads has an active presence abroad. An integral component of the VRI program is to provide staff members with the opportunity to travel and work abroad, which in the long term benefits VicRoads because it promotes personal growth and professional development. VicRoads also promotes VRI as a recruitment strategy.

• Road reserve. There are many similarities between the concepts of road reserve and road right of way (as applied in the United States). However, the treatment of the road reserve in Australian legislation has been historically stronger and more centralized than the corresponding one in the United States. Australian states have also benefited from the application of more centralized land use practices as well as high-level planning and land title registration offices that work with ministries of transportation and other state agencies to provide orderly, coordinated land use planning.

• Corridor preservation. Australian states have a number of tools that facilitate the preservation of corridors for future transportation use. Examples include the requirement to register transportation plans with the state land title registration office, the ability of these offices to add notes or caveats on title certificates related to the future use of a corridor, the ability to control building setbacks on corridors designated for future road expansion, and the ability for the transportation agency to acquire parcels during the planning phase.

• Appraiser/legal representation fees and right of way negotiation process. Australian states routinely reimburse property owners for "reasonable" expenses (including attorney fees) related to the appraisal and negotiation process. Further, in the Australian practice, property owners are encouraged to become informed and seek professional help to assist them in that process. In addition, Australian states routinely share appraisal reports with property owners (or their representatives). Additional innovative right of way acquisition practices include reconciliation of professional opinions, the use of lease agreements with property owners to facilitate early right of entry to the property, in-kind compensation, exchange of surplus property for required property, and reliance on appraisals by independent bodies.

These features combined result in a more cooperative, less adversarial relationship with property owners, which can result in more effective property acquisition practices and earlier access to property needed for project completion.

• Use of technology to support the right of way acquisition and property management processes. It is customary for Australian states to use GIS-based applications to manage the right of way acquisition process, including corridor preservation, as well as property management activities. The use of GIS technology is supported by the use of public acquisition overlays during the planning process to illustrate the extent of the road reserve, the requirement to register transportation plans with the state land title registration office, and the integration of parcel databases into geo-referenced data repositories that facilitate data exchange among stakeholders.

Through the alliance contracting approach, Australian states are beginning to experiment with the use of visualization techniques to assist in the right of way acquisition process, e.g., by using 3-D visualization techniques and posting video clips on the Internet to explain the project to a wide audience.

• Dial Before You Dig. "Dial Before You Dig" is a referral system for information about underground utility installations. It is a voluntary national organization that has members from all states and territories. It operates in a manner similar to the One Call centers in the United States, with two major differences. First, membership includes not just utility owners and operators but also transportation agencies and railroads (under the premise that these agencies can also provide information about the assets they own to parties that request that information). Second, Dial Before You Dig encourages the use of their services earlier in the project development process compared to what is customary in the United States.

• Utility relocations are reimbursable. Australian states normally reimburse utility interests for the relocation of utility facilities (but not for betterments). Historically, most utility owners and operators have been government entities. As a result, it does not really matter who pays for the relocation since funding for it comes from the same source. For simplicity, the policy is that the agency responsible for the transportation project that causes the need for the relocation is also responsible for the utility relocation costs. In recent years, the Australian utility industry has undergone deregulation, with a large percentage of utility interests now in private hands. However, the policy for reimbursing utility relocations continues.

• Multi-level Memorandum of Understanding (MOU) approach with utilities. In Australia, several states are exploring a variety of MOUs and agreements with utilities to facilitate the cooperation and coordination process. In a typical situation, a high-level MOU sets forth general principles and the intent of both parties to work cooperatively. Typically this MOU is signed by the parties at the executive director level. To ensure the MOU is a living document, there might have attachments and other agreements that discuss specific issues, such as standards, specifications, and general procedures for the resolution of conflict situations. Typically, technical personnel from both organizations prepare these documents. There might also be contract-level agreement details and specific provisions that the higher-level MOU did not address.

The multi-level MOU concept is also used in the United States. However, the impression received by the study team is that Australian MOUs are more elaborate and stringent than those in the United States. Readers should be aware that, opposed to the United States, where utility accommodation policies or rules at the state level govern the accommodation of utilities on the state right of way, a similar concept does not seem to exist in Australia (which could explain in part the need for more comprehensive MOUs). Nonetheless, the study team noticed several advantages in the Australian MOU concept that are worth considering for implementation in the United States.

MOUs with telecommunication providers in Australia seem particularly critical, considering that telecommunications in that country are governed by federal legislation (as opposed to state legislation, as is the case of other utilities) which, in general, is weak with respect to the power given to the agencies responsible for the road reserves to regulate the accommodation of telecommunication facilities.

Related to the implementation of the MOUs is the NSW Streets Opening Conference, which started in Sydney in 1909 as a focal point for the discussion of common transportation and utility issues. The association’s objectives include establishing agreed roadside allocations and recommended practices for the provision of utility services; fostering coordination; encouraging the use of agreed codes and practices for excavation, backfilling, and roadway reconstruction; and minimizing the impact of excavations. Membership includes utility owners, local government and road authorities, light rail operators, other government agencies, consultants, and other groups that have an ongoing interest in utility issues.

Canada

Lessons learned from the visits to Alberta Transportation and MTO include the following:

• Appraisal sharing. As in the case of Australian states, Alberta Transportation and MTO share appraisal reports in full disclosure to achieve transparency with property owners. Both agencies also reimburse property owners for reasonable costs, including appraisal, engineering reports, and planning reports.

• Corridor preservation and setback control. Alberta and Ontario have legislation that enable the province transportation agency to regulate the type of development (including utilities) that takes place within a certain distance from the road centerline or the property line. In Alberta, the extent of the land under regulation varies depending on the type of road. For example, according to a new regulation currently under development, the extent of land under regulation will be 150 m (492 ft) from the right of way line for minor provincial highways and 300 m (984 ft) from the right of way line for multi-lane provincial highways. In Ontario, regulation tools at MTO’s disposal cover encroachments and utility installations, buildings and land use, signs, and highway access. The minimum setback for new buildings or other structures varies depending on the type of road and proposed development. For example, in the case of controlled-access highways, the minimum setback for new buildings is 45 m (148 ft) from the right of way. .

• Transportation and Utility Corridors. In Alberta, the Government Organization Act enabled the establishment of Restricted Development Areas to coordinate and regulate the development and use of certain areas. The Calgary RDA and the Edmonton RDA are of particular interest because of the designation of TUCs within those RDAs. The TUCs were established on the principle that long-term planning for the accommodation of a number of transportation and utility facilities within a TUC can maximize its use. The TUCs protect ring road and utility alignments from advancing urban development. Specific advantages to the use of TUCs include land conservation, limited environmental disruption, administrative efficiency, safety, land use certainty, assured alignments for future users, and open space use.

• Trend to outsource most work is reversing. Alberta Transportation outsources most work, including right of way acquisition and utility coordination. However, the agency is revisiting its 100% commitment to outsourcing. MTO outsources practically all work, except right of way acquisition, but has begun to do more work internally. This trend highlights the need to develop in-house expertise to address needs such as succession planning, the ability to provide needed services, and the management of services that continue to be outsourced.

Recommendations and Planned Implementation Actions

The study team identified some 20 potential implementation ideas that would merit consideration in the United States. Of those ideas, the study team considered the following to be top priority for implementation:

• integrate right of way acquisition and utility coordination in an alliance contract approach,
• enhance cooperative relationship with property owners to facilitate timely property acquisition,
• promote visualization techniques to communicate anticipated project impacts to property owners,
• develop framework to establish proficiency of right of way and utility professionals in core disciplines,
• promote incentive-based reimbursement for utility relocations,
• pursue strategies to facilitate corridor preservation,
• promote the use of multiple-level MOU structure among transportation and utility interests,
• develop GIS-based right of way project and asset management systems, and
• promote the use of best practices in utility coordination during the construction phase.

With the 2000 and 2008 scans, the United States now has a sizable database of effective right of way and utility practices and strategies covering at least six industrialized nations in three different continents. The fact that some of those strategies and practices are present in all or most of those nations is an additional indication of the strength and benefit derived from those strategies and practices, further highlighting the value of their potential implementation in the United States. Taking into consideration that the United States is already implementing several of the recommendations from the 2000 scan, a valid recommendation would be to evaluate (if not now, possibly within the next 5-8 years) which recommendations from the 2000 and 2008 scans (and to what degree) have become accepted practice in the United States. It may be worth noting that FHWA recently facilitated a peer exchange to evaluate the concept of voluntary incentives for right of way acquisition and relocation, which was one of the recommendations from the 2000 scan. The peer exchange noted 13 pilot voluntary incentive applications from 8 different states.