SUBPART A - GENERAL

Non-Regulatory Supplement

OPI: HEPR

1. AVAILABILITY OF PROJECT DEVELOPMENT GUIDE (49 CFR 24.1). A Project Development Guide (PDG) is available to provide information and guidance to State Departments of Transportation (State DOTs) and local public agencies (LPAs) on the advancement of the right-of-way phase of the Federal-aid highway program. It may also be used by other Federal agencies as a reference in acquisition programs and may also be applicable to non-Federal acquisition programs.

2. LOCAL PROJECT FINANCING THROUGH MEANS OF ASSESSMENT (49 CFR 24.1(a)). Special assessments are a form of taxation imposed pursuant to State law upon persons benefited by public works projects and are separate and distinct from the acquisition of real property pursuant to the power of eminent domain. While there may be instances where the use of special assessments appears to be inequitable, the issues involved are not generally related to the Uniform Act, or to statutes or regulations. The issues are between the taxing authority and the affected property owners and the appropriate remedies are governed by State law.

3. RELOCATION BENEFITS FOR AIRSPACE TENANTS (49 CFR 24.1(b)). Airspace tenants permanently displaced by a Federally-assisted project are covered by the Uniform Act. Airspace tenants who are not required to relocate permanently are not considered displaced persons for purposes of the Uniform Act, but airspace tenants would be entitled to temporary relocation expenses in accordance with 49 CFR 24.2(a)(9)(ii)(D) and 49 CFR 24 Appendix A. With regard to future commercial leases of State or local government-owned airspace, possible entitlement to relocation benefits should be addressed in negotiations and specifically provided for in the lease agreement. If done in this manner, and relocation benefits are specifically excluded, a Federal agency could reasonably conclude that the Uniform Act does not apply in such an instance. The State should develop appropriate language for its leases and permits. The Federal Highway Administration (FHWA) Headquarters Office of Real Estate Services (HEPR) would appreciate the opportunity to review any proposed language to ensure conformity with the Uniform Act and 49 CFR Part 24.

4. APPLICATION OF UNIFORM ACT TO PRIVATE ENTITIES AND NON- ACQUISITION ACTIVITIES (49 CFR 24.2(a)(1)). The 1987 Amendments to the Uniform Act expanded the Act's scope to apply to private entities who receive Federal financial assistance and who use such assistance to undertake projects that involve land acquisition or the displacement of persons. The 1987 Amendments also expanded the Act to apply to rehabilitation and demolition activities that often do not involve the acquisition of real property. States should consider whether existing State legislation is adequate to cover the activities of private entities and actions not involving the acquisition of real property. Alternatively, Federal or State funding agencies may be able to ensure the compliance of such private entities and non-acquisition projects by grant conditions or other contractual arrangements. In determining the adequacy of any necessary legislation, the State DOT is the ultimate authority as to the interpretation and application of State law.

5. COMPARABLE HOUSING AND DECENT, SAFE AND SANITARY (DSS) HOUSING STANDARDS (49 CFR 24.2(a)(8)) and 49 CFR 24, Appendix A). Even if it is "culturally" a part of the lifestyle for a displaced person to live in a non-DSS dwelling, it is not acceptable to base the replacement housing payment on the same non-DSS conditions in a comparable property. A comparable property must meet the appropriate local housing codes. If a displaced person insists on non-DSS replacement housing, the displacing agency may request a waiver of the DSS requirements from FHWA.

6. RELOCATION ASSISTANCE AND PAYMENTS TO PUBLIC HOUSING RESIDENTS (49 CFR 24.2(a)(6)(ix)). Persons who are displaced from a public housing unit may be offered a comparable public housing unit as a replacement dwelling, and a rental assistance payment based upon the rent of the available unit, provided that the displaced persons are still eligible for public housing. A more detailed explanation is contained in 49 CFR Part 24, Appendix A.

7. DEDUCTIONS FOR DELINQUENT RENT (49 CFR 24.403(a)(6)). A State agency may not deduct from relocation payments any rent that a displaced person owes the agency. Advance relocation payments may be deducted, but only to the extent that such deductions do not prevent the displaced person from obtaining comparable replacement housing within the financial means of such person (49 CFR 24.2(a)(6)(viii)). This could be done by subjecting the tenant to a financial means test. Tenants who cannot or will not pay their rent should not be permitted to become long-term occupants of State-owned property. Once problem tenants are identified, the State should make every effort to relocate problem tenants as soon as possible to minimize delinquency problems. However, the State must meet its responsibilities under the regulations, including referrals to comparable housing and other necessary assistance.

8. DECENT, SAFE, AND SANITARY HOUSING STANDARDS (49 CFR 24.2(a)(8)). A replacement dwelling must meet the more stringent requirements of either the local housing and occupancy codes or those set forth in 49 CFR 24.2(a)(8). To preclude the voluntary purchase or rental of a non-DSS replacement dwelling by the displaced person and thereby jeopardize his/her housing supplement, it is the displacing agency's responsibility to inform each displaced person at an early date that no monetary commitment for a replacement unit should be entered into before a DSS inspection has been completed by the agency.

9. STATE PROCEDURES FOR PROVIDING REPLACEMENT HOUSING FOR PERSONS WITH DISABILITIES (49 CFR 24.2(a)(8)(vii)). Federal regulations are sufficiently flexible to permit each State to develop its own procedures for providing replacement housing for displaced persons with disabilities. States may advise the disabled displaced person that he/she could receive the actual reasonable cost of adding the necessary facility to the dwelling actually purchased. In the case of rentals, the amount of the rent supplement could be increased to compensate for any additional cost that would be justified in providing the necessary facility. The facility must be in place before property can be approved as decent, safe, and sanitary and before any payment is made for replacement housing. See 49 CFR 24, Appendix A, for additional information.

10. RELOCATION PAYMENT FOR A DIVORCED SPOUSE (49 CFR 24.2(a)(20)(iv)).

    1. Acquisition for a project of a dwelling occupied by a divorced spouse may result in that person receiving only a part of the acquisition payment. To qualify for the maximum payment computed on the basis of a comparable dwelling, the divorced spouse need only invest his/her share of the acquisition cost of the dwelling, plus the amount of the computed replacement housing payment in a replacement dwelling. A displacing agency is not required to make up the other spouse's share of the acquisition payment.

    2. The divorced spouse's replacement dwelling must be DSS. If the divorced spouse is unable to afford to purchase a dwelling, he/she may be treated as a tenant who would be eligible for a down payment or a comparable rental unit.

    3. The same procedure above is applicable in situations where a displaced person is the sole occupant of a dwelling that has multiple owners.

11. REPLACEMENT HOUSING PAYMENT TO A DISPLACED PERSON HOLDING A LIFE ESTATE (49 CFR 24.2(a)(20)(i)). A person holding a life estate in a property required for a Federal-aid project should be treated as an owner. The amount of the replacement housing payment will depend upon the acquisition price, which may vary in accordance with applicable State law. Each State should develop its own procedures in accordance with applicable State law under the concept that the displaced person will receive a payment sufficient to enable him or her to relocate as an owner with an interest at least equivalent to what he/she had prior to the acquisition of the property.

12. DEFINITION OF SALVAGE VALUE (49 CFR 24.2(a)(23)). The salvage value of buildings, structures, or other improvements is always equal to value for removal. The fourth edition of the "Dictionary of Real Estate Appraisal", dated 2002, defines "salvage value" as the price expected for the whole property (e.g., a house) or a part of the property (e.g., a plumbing fixture) that is removed from the premises, usually for use elsewhere. Thus, the terms "salvage value" and "value for removal" are considered to be synonymous.

13. APPLICATION OF OVERPAYMENT IN CONDEMNATION CASES TO RELOCATION ASSISTANCE PAYMENTS (49 CFR 24.3). Amounts in excess of the final settlement or award paid to the property owner have the same purpose and effect as relocation payments due the property owner. Such excess amounts may be used to offset, in whole or in part, relocation payments that the property owner would otherwise be entitled. The State must be able to demonstrate that the property owner, if otherwise eligible for relocation payments, was clearly advised at or prior to the time that any deposit is made that any excess amount not repaid to the State may be credited against the amount of the property owner's relocation payments. Further, amounts in excess of the final settlement or award should not be deducted from the property owner's relocation payment if it would prevent the displaced person from obtaining a comparable replacement dwelling as required by section 205(c)(3) of the Uniform Act and 49 CFR 24.204.

14. FHWA REVIEW OF STATE RELOCATION AND EMINENT DOMAIN LEGISLATION (49 CFR 24.4(a)). Amendments to State relocation and eminent domain laws should be made with due regard for Federal requirements. The FHWA recognizes that States have complete discretion to develop and enact legislation in this area. However, the FHWA can provide assistance by reviewing the State's legislation to ascertain whether it is conforms with the requirements of Federal law, and by advising the State of any impact the legislation would have insofar as FHWA participation is concerned. Accordingly, when an amendment is being considered, it is recommended that:

    1. appropriate State officials be advised that FHWA is willing to provide comments on proposed relocation or eminent domain legislation;

    2. FHWA field personnel submit any State requests for review together with comments to HEPR; and

    3. if the Division becomes aware of proposed relocation or eminent domain legislation, forward it with comments to HEPR for review, regardless of whether a State has requested such review.

15. UNIFORM ACT ASSURANCES BY LOCAL PUBLIC AGENCIES (49 CFR 24.4(a)(1)). If Federal funding for an LPA is administered through a State agency, no assurances will be required from the LPA. However, if the LPA receives funding directly from a Federal agency, assurances will be required from the LPA.

16. USE OF RISK ASSESSMENT PROCESS IN MONITORING RESPONSIBILITIES (49 CFR 24.4(b)). Risk assessment guidelines have been specifically designed to help field Realty Officers maximize the use of available resources by concentrating efforts on program areas with high risks and reducing or eliminating involvement where risks are low. Contact HEPR for a copy of the guidelines.

17. STATISTICAL REPORT FORM (49 CFR 24.9(c)).

    1. The Statistical Report Form shall be used by the FHWA Division Office in reporting all Federal or federally-assisted acquisition and relocation activities to HEPR. An automated, web based reporting form can be found on HEPR's Annual Right-of-Way Statistics website.

    2. The data to be submitted should be for the fiscal year immediately preceding the reporting date. (See 49 CFR Part 24, Appendix B, for instructions and the report format).