In response to a request from the Mississippi Division, the purpose of this memorandum is to provide guidance concerning Uniform Act eligibility and related right-of-way actions for those projects located within areas impacted by Hurricane Katrina.
BACKGROUND
The Division has identified at least two projects that will occur within areas devastated by Hurricane Katrina. FHWA is issuing the following guidance in the anticipation that Federal-aid authorizations of right-of-way activities will occur, in the near term, for projects within these areas.
Eligibility for relocation benefits under the Uniform Act is generally triggered by the occurrence of one of the following actions taken by the State for a Federally-assisted program or project: (1) the initiation of negotiations, (2) the issuance of a notice of intent to acquire, or (3) the actual acquisition of the property, whichever comes first. Persons who move from their property, or move personal property, as a direct result of these displacing activities are considered displaced persons covered by the Uniform Act. Because many of the persons displaced by Katrina may not occupy the property when the right-of-way acquisition phase of the projects is commenced, questions have been raised about their eligibility for certain benefits provided for under the Act.
Some guidance on this question with respect to residential properties is provided by the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, 42 USC § 5121 et seq. (Stafford Act) and the Uniform Act regulations:
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Section 414 of the Stafford Act, 42 USC § 5181, provides that "Notwithstanding any other provision of law, no person otherwise eligible for any kind of replacement housing payment under the [Uniform Act] shall be denied such eligibility as a result of his being unable, because of a major disaster as determined by the President, to meet the occupancy requirements set by such [Uniform Act]".
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In 49 CFR § 24.403(d) (additional rules governing replacement housing payments) reflects this § 414 requirement. That section provides that "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: (1) A disaster, an emergency , or an imminent threat to the public health or welfare, as determined by the President.".
GUIDANCE
Applicability:
This guidance applies to those projects located within areas impacted by Hurricane Katrina, identified on the State's Statewide Transportation Improvement Programs (STIP), and for which
The appropriate FHWA Division Office executes project agreements (including authorization of the right-of-way function) during Federal Fiscal Years 2005 and 2006.
Acquisition:
In accordance with accepted appraisal industry standards, real property will be appraised based on its condition and the market factors that exist as of the date of valuation. Acquisition activities will be carried out in accordance with 49 CFR Part 24 Subpart B and those applicable provisions contained in the State DOT's approved Right-of-Way manual.
Residential Relocation:
By virtue of section 414 of the Stafford Act, replacement housing assistance will be provided to otherwise eligible residentially displaced persons without regard to their inability to meet prescribed occupancy requirements due to a national disaster or a presidentially declared emergency. FHWA interprets section 414 to provide relocation assistance eligibility to those persons who are unable to return and reoccupy property they resided in that is within a project alignment because they have been displaced by Hurricane Katrina. The displacee is relieved of the requirement that he/she actually be in physical occupancy of the dwelling as of the date of displacement by the transportation project. All Uniform Act eligibility requirements continue to apply (except physical occupation as of the date of displacement by the transportation project).
In accordance with the provisions cited in section 414 of the Stafford Act and 49 CFR § 24.403 above, the state DOTs, with guidance from the FHWA Division Office, and upon making a determination of "constructive residential occupancy" must provide residential relocation benefits and payments in accordance with 49 CFR Part 24, Subpart D provisions.
The determination of "constructive residential occupancy" must be made on a case-by-case basis and, as a minimum, must consider the following factors:
The claimant's actual occupancy of the dwelling just prior to the displacing emergency
The existence of a lease or other legal tenancy, covering a tenant's right to occupancy prior to, and through the hurricane
An owner's legal right to return to the evacuated property, rebuild and occupy a dwelling
Any other factors indicating whether the claimant would have been in occupancy at the time of displacement by the transportation project except for the occurrence of the disaster or emergency event.
In summary, the states must make a determination that, had the hurricane not occurred, the occupant would have occupied the property within the right-of-way alignment until displaced by the transportation project.
Whenever replacement housing of last resort is required the states must work within 49 CFR
§ 24.404 (c) or request a waiver.
Business Moves:
Because the occupancy provision discussed in the Stafford Act applies to residential occupants only, the relocation benefits that may be provided to business occupants are limited to current provisions in 49 CFR Part 24 Subparts C and D.
If it can be determined that some business fixtures or personal property remains to be moved off the site to be acquired, moving costs may be provided in accordance with 49 CFR Part 24, Subpart D. Fixed payments may be authorized as provided in 49 CFR § 24.306. Also, FHWA will consider all requests for waivers under 49 CFR § 24.7 where it can be established that because of the disaster no replacement business sites are available with structures suitable for the displaced enterprise and the business owner must build a new structure in order to remain in operation. In this event, FHWA may allow the use of the $10,000 reestablishment payment available under 49 CFR § 24.304 to be used for the construction of a replacement business structure.
Except as noted herein, the activities cited above are to be carried out in accordance with provisions contained in 49 CFR Part 24 and with particular attention to the requirement of 49 CFR § 24.3 (no duplication of payments).
Questions on this guidance may be directed to Joseph Edwards at (202) 366-2042 (e-mail joseph.edwards@fhwa.dot.gov)
To provide Feedback, Suggestions or Comments for this page contact Gerald Solomon at (Gerald.Solomon@dot.gov).
