Belcher 1 USING THE EASEMENT ASSIGNMENT PROCESS FOR EFFICIENT UTILITY RELOCATION OF A LOCALLY ADMINISTERED PROJECT

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1 Belcher 0 USING THE EASEMENT ASSIGNMENT PROCESS FOR EFFICIENT UTILITY RELOCATION OF A LOCALLY ADMINISTERED PROJECT Paper No. -0 Submitted to the Transportation Research Board for presentation at the st Annual Meeting (January -, 0) and publication in the Transportation Research Record series. Timothy Belcher, P.E. (corresponding author) Project Manager Dewberry 0 Arlington Boulevard Fairfax, VA 0 Phone: 0..0 Fax: tbelcher@dewberry.com Number of words:, (abstract: ; body:,; tables: 0, figures: 0)

2 Belcher 0 ABSTRACT The Easement Assignment Process (EAP) involves the acquisition of a single utility easement early in the design process. The language in the easement gives the government the right to assign portions of the easement to utility owners who need to relocate for the specific project. This process reduces the number of necessary interactions with each individual landowner and reduces the number of times that documents need to be prepared for government approval. This process is highly compatible with the current Every Day Counts initiative sponsored by the Federal Highway Administration. This paper will outline the EAP process, explain its use in a groundbreaking case study for Loudoun County in Virginia, and reference a similar process that is being developed by the Virginia Department of Transportation (VDOT).

3 Belcher INTRODUCTION Relocating utilities often falls on the critical path for many highway projects. This can be especially true if utilities have to be relocated outside of the existing right-of-way. Dealing with this scenario involves many steps. The typical process for acquiring a new utility easement is: design the relocation [three months]; coordinate with the landowner [one month]; create an easement drawing [one month]; write an easement deed or attach utility owner standard instrument language [one month]; get the deed and plat approved by the municipality [two months]; get the deed signed by the landowner [two months]; get the deed signed by the utility owner (if there is a deviation from the standard language) [two months]; and get the deed signed by the municipal supervisory board or council or other government agency controlling the land use in the area [two months]. [Approximate timeframe: months] This process repeats concurrently for every utility owner for every parcel of land affected. Obtaining signatures on deeds takes an indeterminate amount of time, but can lag for several months. Developers, for instance, may not have the authority locally to sign a deed. The deed may have to wait for the next meeting of a Board of Directors. Also, all lenders who have interest in the property are required to sign the deed. The external transfer of the deed to these different entities can itself take several months. Utility field personnel usually work out of regional offices without signature authority on any deviations from company standard deed language. Any changes from the utility company may have to be forwarded to a corporate office in another state for approval or signature. Due to the volume of work that the corporate offices handle, this step can also take several months to complete. PREVIOUS ATTEMPTS TO ADDRESS THE PROBLEM In looking at the practices of several jurisdictions in the Commonwealth of Virginia, the problem of reducing the timeframe to obtain easements for multiple utilities is usually not addressed. A couple of municipalities and the Virginia Department of Transportation (VDOT) have taken steps to address joint utility easements. However, it should be noted that these practices are for utility easement reservation only, and the process and timeframe described above still applies. Prince William County, Virginia (PWC) saw the need to create language to reserve easement that would be occupied in the future by multiple utility owners. PWC utilizes standard deed language for a Common Shared Utility Easement (). The language reads: THIS DEED FURTHER WITNESSETH: That, pursuant to DCSM.0, the Grantor does hereby create and reserve unto itself all of those Common Shared Utility Easements as are shown on the Plat for future conveyance to individual utility companies. The Grantor shall be responsible for the maintenance of said Common Shared Utility Easement.

4 Belcher This process aids in planning by having the landowner reserve an area for future utility easements. However, when the specific utility easements are determined the process explained in the introduction has to occur for every utility owner for every parcel of land impacted. VDOT has utilized joint use easements. These are easements acquired for use by more than one public utility owner (). The easements are obviously non-exclusive and require the landowner to sign deeds for each utility owner once the specific easements are finalized. The only option to compress this process is to write joint easement language that each utility owner would have to review, agree upon, and sign. This, however, runs the potential of late language changes having to be reviewed again by multiple utility owners. NEW METHOD TO ADDRESS THE PROBLEM: THE EASEMENT ASSIGNMENT PROCESS In order to accelerate the construction schedule, the easement acquisition process has to be streamlined. The most flexibility lies within simplifying the external process of getting signatures from the landowner. The easement assignment process (EAP) initiated by Loudoun County and Dewberry involves deed language that gives the local government the rights to assign areas within a predetermined easement to the necessary utility owners. The new EAP process is: determine areas to be set aside for possible utility relocation [one month]; coordinate with the landowner [one month]; create an easement drawing [one month]; write an easement deed with EAP language [one month]; get the deed and plat approved by the municipality [two months]; get the deed signed by the landowner [two months]; get the deed signed by the government [two months]. [Approximate timeframe: 0 months] The resultant savings on the initial acquisition is approximately four months. There is a two month savings by simply determining potential areas of relocation as opposed to completing utility relocation design to create specific easements. Also, there is roughly a two month reduction by not having to engage the utility owners for signatures until after EAP is completed. Utility relocation design is often refined for numerous reasons such as: roadway design elements being finalized, utility maintenance access locations, interactions with other utilities, or landowner changes. Therefore, the real benefit is that the EAP does not have to be repeated with every utility owner and for every design change that falls within the easement. This has benefits to all parties involved: Government Benefits By simplifying the external process, the government can see a decrease in the amount of time necessary to acquire utility easements. This will help to meet project schedules that are often driven by funding stipulations or political pressure. Also, acquiring the utility easement area

5 Belcher serves the same planning function as the common shared utility easement or joint use easement mentioned previously. The government can be assured that the landowner s right to make improvements in the area of the future utility relocation is restricted. Designer Benefits There are many coordination requirements between roadway elements and utilities that evolve constantly throughout the project process. With EAP, the roadway and utility designers have the flexibility of being able to modify the design without having to approach the landowner for each change of the utility relocation alignment. This will allow design to continuously move forward and for designers to have more options available that would not impact the project schedule. Landowner Benefits As mentioned previously, certain landowner representatives may not have the authority to sign for utility easements. Some landowners, especially developers, may require these actions be approved first by a board of directors or other lenders or entities that have an interest in the property. EAP eases the burden of multiple processes on the landowner representative by having to go through the process only once, and not for every single change as a result of the evolving design. The landowner can be assured that EAP will not constitute capricious acts of assignment by the government. There are several protections that can be put into place to protect the landowner s interest. Company Specification It should be a reasonable assumption that municipality is aware of all of the utility owners present in the area along the landowner s frontage. The deed language can state specifically which companies that the easement can be assigned. Utility owners who do not exist in the area cannot use the opportunity to get a new easement without the landowner s knowledge. Duration Limits The EAP can be limited to a specific point in time. For example, the assignment rights can expire upon a fixed calendar date, completion of construction, or acceptance of the project for state maintenance. Landowner Compensation If the easement is not proffered, the landowner usually would receive compensation for each utility easement requested on their property. As stated in the previous section, the EAP can be limited to project acceptance and utility owners have a finite period to receive assignment. Thus, the easement purchase is for project-related relocations only which is similar to the traditional utility easement process. Easement Boundary Inherently, the easement boundary itself is another protection for the landowner. The government is not allowed to assign area outside of the easement. Therefore, the landowner can

6 Belcher be assured that the future utility relocations and maintenance will be within already negotiated limits. Case Study: Route /Loudoun County Parkway Interchange This process was used by Loudoun County (County) for construction of the Route /Loudoun County Parkway Interchange. The project was funded completely through a county bond referendum and sale and was therefore administered by the County. On the south half of the project, there were seven different communication companies required to relocate on parcels owned by three different landowners. Loudoun County decided to use EAP in order to deal with each landowner once. As negotiated with the landowners, the final language took three forms. First, the more general language: The County reserves the right to assign these easements to the appropriate public authority or utility company, and the County or such public authority or utility company (as the case may be) shall have the obligation to maintain all equipment and facilities installed by the County or by such public authority or utility company within the easements. The second required relocation of several companies all providing communication. Therefore, the requested restriction was: This easement, or any portion the easement, is freely assignable by the County to one or more electronic communication providers. The last landowner desired more restrictive language and requested the specific utility companies stated as such: This easement, or any portion of the easement, is freely assignable by the County in whole or in part, to (i) Verizon Virginia, Inc., (ii) Woodlawn Communications, LLC, and (iii) Yipes Enterprise Services, Inc., which have current utilities within or near the easement area. The EAP allowed Loudoun County to make necessary adjustments to the utility relocation design within the assignment area without having to go back to the owner for each change. Also, utility owners were more confident to proceed with material procurement and scheduling since the rights to work in the easement and certainty of the assignment of a permanent easement had already been cleared. It is our estimate that EAP shortened the project schedule by at least four months. VIRGINIA DEPARTMENT OF TRANSPORTATION-PERMITTED JOINT USE EASEMENTS VDOT has a pilot program to use VDOT-Permitted Joint Use Easements. These easements are acquired from the landowner by VDOT with designation as to which types of utilities will be located there. After the easement is acquired, VDOT relocates utilities that are currently within

7 Belcher right-of-way by permit into the new easement by the same permit process. Locally administered projects where VDOT is involved in right-of-way acquisition may be able to take advantage of this process. This process is essentially EAP for utilities who do not have prior rights within the VDOT right-of-way. FEDERAL HIGHWAY ADMINISTRATION EVERY DAY COUNTS INITIATIVE Every Day Counts (EDC) is an initiative by the Federal Highway Administration (FHWA) to identify and deploy innovation aimed at shortening project delivery, enhancing the safety of our roadways, and protecting the environment. () The EAP falls in line with the first pillar of shortening project delivery. As shown in the case study, EAP shortened project delivery by about four months on the external easement process and likely many more months for each additional easement transaction required. It is suggested that EAP be added to the EDC toolkit for consideration by other government entities. CONCLUSIONS EAP shows promise in the pioneer use of this Loudoun County project. More case studies are required in order to see if the benefits are globally consistent. Therefore, it is important that this concept be introduced to a wider audience to develop enough field data for examination. A potential route to achieve increased exposure is through the FHWA EDC initiative. Also, this study was limited to localities in the Commonwealth of Virginia. In Virginia, most counties have turned over project delivery responsibility over to VDOT. The research should be expanded to states where local government agencies have the sole responsibility of project delivery and maintenance to analyze their practices. ACKNOWLEDGMENTS John Carlton in the Loudoun County Office of the County Attorney supported this concept by writing the deed language referenced in this paper. The language was eventually accepted by the landowners and utility companies. Matt Reynolds, State Utility Engineer for the Virginia Department of Transportation, provided information on VDOT s recent initiative on VDOT-Permitted Joint Use Utility Easements. Robert Balinger, Mohamed Haroun, and Kent Marrs of the Loudoun County Government worked to advance the EAP process for the Route /Loudoun County Parkway Interchange. The views expressed by the author do not necessarily reflect the views or policies of the Commonwealth of Virginia or the County of Loudoun, Virginia.

8 Belcher REFERENCES. Prince William County Planning & Zoning Form Deed. Accessed July, 0.. Manual of Instructions, Right of Way & Utilities Division Volume. Virginia Department of Transportation, November 00, Glossary p... Federal Highway Administration Every Day Counts. Accessed July, 0.