TABLE OF CONTENTS General Legal Authority for Certification of Right of Way Control 24-2

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1 TABLE OF CONTENTS 2400 CERTIFICATION OF RIGHT OF WAY CONTROL PAGE 2401 General Legal Authority for Certification of Right of Way Control Right of Way Certification and Advertising for Construction Bids The Certification of Right of Way Control Letter Defining the Parcel for the Certification Definitions and Explanations i

2 2400 CERTIFICATION OF RIGHT OF WAY CONTROL 2401 General The Ohio Department of Transportation (ODOT) must own and/or control all rights of way needed for construction of its projects prior to advertising for construction bids. This process is known as clearing the right of way and is part of the process needed to certify that the right of way is available for construction. When the right of way is cleared, the District Real Estate Administrator issues a Certification of Right of Way Control Letter certifying right of way is available for construction. Right of way is cleared by: 1. Acquisition - When ODOT has obtained title to the property, provided payment to the owner and has obtained legal and physical possession of the property. 2. Appropriation - ODOT has exercised its right of eminent domain and has appropriated the property when FMVE is deposited into the court. ODOT has the immediate right of possession for properties that are vacant (no structures in the right of way). When the right way is improved with a structure, the right of possession may take 60 days or longer after the owner has been served a summons notifying him that the petition to appropriate has been filed into the court and, the court has issued an order of possession to remove the structure. Possession may be delayed if an occupant of the structure still has not vacated the structure or if the court orders that redbook appraisals be made of the structures. Also, possession may be accelerated by other orders from the court. 3. Right of Entry - The property right of possession provided by the owner to ODOT allowing the contractor to enter upon the property to construct the project. This right is obtained using a right of entry contract and is voluntary on the part of the owner. 4. Occupants Vacated- Any occupant in the right of way required for the project has relocated from the required right of way. These occupants are generally considered displaced and may be entitled to relocation benefits under the Highway Relocation Assistance Program. 5. Railroad Agreements- Possession of right of way required from active rail corridors is generally obtained by a railroad (construction) agreement signed by the operating railroad corporation and ODOT. The actual ownership of the property occurs later when price and terms can be negotiated. 6. Utilities - All certifications must have information describing utility involvement in the project. If there are no utilities in the existing right of way or the right of way that is being purchased, the Certification Letter will have information stating there are no utilities involved. If there are utilities in the existing right of way, in the proposed right of way or the construction limits of the project, there 24-1

3 2400 RIGHT OF WAY CERTIFICATION must be a Utility Note that explains the status of the utilities and the Utility Note must be inserted into the Certification Letters. 7. Encroachments - All encroachments either must be removed from the right of way or have a definable plan for removal or be issued a revocable permit. The purpose of the project right of way certification is to identify and to accurately communicate the acquisition status of rights of way necessary for the advancement of a project into its construction phase. The status of a project s right of way acquisition is detailed in the Certification of Right of Way Control Letter. The Certification of Right of Way Control Letter is the written report summarizing the status of all right of way related issues. Ideally, this information provides documentation that all right of way is acquired and/or controlled with the district having physical possession of all needed right of way and the rights to remove, salvage, or demolish all necessary improvements allowing the project to proceed for advertising and construction. Projects having right of way that is not yet cleared and/or controlled may be prohibited from advertising for construction. All right of way certifications are to comply with the requirements in 23 CFR All right of way acquisition and relocation activities must comply with the Uniform Act and all other applicable laws, regulations and directives from state and federal levels. All acquisitions and relocations must comply with the Real Estate Manual of the Ohio Department of Transportation which incorporates these laws/regulations into its acquisition procedural process. A Certification of Right of Way Control Letter must be issued for every project, even if the project requires no additional rights of way. In this instance, the letter states that no additional right of way was required for the project Legal Authority for Certification of Right of Way Control 23 Code of Federal Regulations Authorization 23 Code of Federal Regulations Advertising for Bids 23 Code of Federal Regulations Construction Advertising 23 Code of Federal Regulations Design-Build Projects 23 Code of Federal Regulations (e) Adequacy of Real Property Interest 23 Code of Federal Regulations 1.23 Rights of Way The Federal-Aid Highway Program Stewardship and Oversight Agreement 2403 Right of Way Certification and Advertising for Construction Bids A transportation project is typically scheduled with the anticipated construction sale date well known in advance of the active process to acquire rights of way for the project. With the 24-2

4 2400 CERTIFICATION OF RIGHT OF WAY CONTROL construction sale date known, the date by which right of way must be cleared and then certified is established. The District Real Estate Administrator (DREA) is responsible to: 1) assure the acquisition/relocation processes are compliant to the Uniform Act and the ODOT Real Estate Manual; 2) assure the right of way necessary for the project is cleared; and, 3) is responsible to issue the Certification of Right of Way Control Letter accurately depicting the status of the right of way needed for the project. Certification of Right of Way Control Letters cannot be issued to FHWA until the Environmental Document is completed and approved. When these actions are completed, the district sends the Environmental Consultation Form to the ODOT Office of Estimating. The interrelationship between the processes of certifying the right of way and obtaining authorization to advertise for construction bids for ODOT-let projects, LPA projects and designbuild projects is discussed in this section. A. ODOT-Let Projects The DREA uses staff and/or consultants to acquire and control the necessary right of way. These people are provided a specific date to have the right of way acquired and cleared for the transportation project. During this process, the DREA is responsible to assure that all acquisition and relocation processes are compliant with the Uniform Act, its implementing regulations and the Real Estate Manual. 2. On or before the date the right of way is to be certified, the District Real Estate Administrator determines the status of right of way clearance. This information is provided by staff or consultant to the DREA. 3. The DREA uses the information and creates the Certification of Right of Way Control Letter. The Certification Letter is provided to the district project manager responsible for the transportation project. This project manager includes the Certification of Right of Way Control Letter with the PS&E package and sends the package to the ODOT Office of Estimating located in Central Office, Columbus, Ohio. a. If the contractor can enter onto all right of way and structures needed for the project, the DREA issues either a Certification of R/W Control Letter 1 or 2 see section 2404(D) of these procedures for more detail. b. It is the intent of these procedures that rights of way are to be controlled and cleared prior to the project manager sending the PS&E package to the Office of Estimating. However, if the contractor cannot enter onto the right of way of a few parcels by the filing of the PS&E package with the Office of Estimating, the district is not to issue a Certification of R/W Control Letter 3. The district shall the Office of Estimating and request an Exception to File the R/W. The Office of Estimating shall respond back to the district and provide a date by which the district is required to issue a Certification of R/W Control Letter. Generally, this date will correspond to the Funding Complete Date (the point in time when the PS&E package has been processed and ODOT is ready to request authorization from FHWA to advertise). This additional time may allow a district to clear the right of way on those few

5 2400 RIGHT OF WAY CERTIFICATION remaining parcels prior to the Certification of Right of Way Control Letter being reviewed by FHWA. 4. The Office of Estimating logs all of the information from the PS&E package into ELLIS which is ODOT s project tracking program. The PS&E package now becomes known as the Plan Submittal Package and any discrepancies identified during this log in process are corrected. This process generally takes from 5 weeks to 12 weeks depending on the size of the transportation project. The district may use this time to clear right of way that is not yet controlled. a. If some parcels are not yet controlled by the end of PS&E processing time, the district may request the concurrence of the Administrator of the Office of Real Estate to issue a Certification of R/W Control Letter 3. If concurrence is received, the Certification Letter 3 may be issued and plan notes must be added to the plans detailing the non-controlled/non-cleared rights of way needed for the project. 5. Once the PS&E/Plan Submittal log-in is completed, the Office of Estimating sends the PS&E form, the Environmental Consultation Form and the Certification of Right of Way Control Letter to the ODOT Office of Accounting, Division of Finance. The information is reviewed for accuracy and is then input into FMIS (Fiscal Management Information System). 6. FHWA has 7 business days to review the information in FMIS. When FHWA approves the information, it inserts an electronic signature into FMIS. This signature is FHWA s authorization allowing ODOT to advertise for construction bids. B. LPA Projects (subject to ODOT oversight) 1. The LPA uses staff and/or consultants to acquire and control the right of way necessary for the project. The appraisal, acquisition and relocation processes are to comply with the Uniform Act, its implementing regulations and the Real Estate Manual. The DREA is responsible to assure the LPA has complied with these regulations and the Real Estate Manual. Once the right of way is acquired and/or controlled, someone of authority from the LPA issues a Certification of R/W Control Letter to the district. a. The LPA shall issue to the district, the LPA s Certification of Right of Way Control Letter (either 1 or 2) and shall certify the degree of control the LPA has over the right of way needed for the project. The LPA Certification Letters are found on the Office of Real Estate web site. 2. The DREA must do what is necessary to be assured the information in the LPA s Certification is accurate. Once assured, the DREA creates the Certification of Right of Way Control Letter. The Certification Letter is provided to the district project manager/lpa Manager responsible for the transportation project. This project manager or the District LPA Manager inputs the information from the PS&E package including the Certification of R/W Control Letter onto the ODOT O-drive. The LPA Manager then issues an to the ODOT Office of Local Programs informing them that the project information is now available for review and requesting authorization to advertise 24-4

6 2400 CERTIFICATION OF RIGHT OF WAY CONTROL for construction bids. a. If the contractor can enter onto all right of way and structures needed for the project, the DREA issues either a Certification of R/W Control Letter 1 or 2 see section 2404(D) of these procedures for more detail. The Office of Local Programs will not process PS&E packages when R/W is certified with conditions. 3. The Office of Local Programs reviews the information for completeness and when the submitted information is determined to be acceptable, the Office sends the PS&E package, the Environmental Consultation Form, the Certification of Right of Way Control Letter and makes a Request for Federal Authorization to the ODOT Office of Accounting, Division of Finance. The Office of Accounting reviews the information for accuracy and it is then input into FMIS (Fiscal Management Information System). 4. FHWA has 7 business days to review the information in FMIS. When FHWA approves the information, it inserts an electronic signature into FMIS. This signature is FHWA s authorization allowing the LPA, subject to ODOT s jurisdiction/oversight, to advertise for construction bids. C. Design-Build Projects 1. Design-build projects allow districts flexibility to bring projects to the construction phase at a quicker than typical pace. Districts and LPAs need to coordinate with FHWA early-on in the project development process regarding the flexibilities that will and will not be acceptable to FHWA. See 23 CFR (p) for more information regarding design-build projects The Certification of Right of Way Control Letter A. The district must accurately depict the acquisition status of the right of way as of the date the Certification of Right of Way Control Letter is issued for any ODOT-let project and/or any LPA project subject to district oversight. This is done by issuing the: Certification of Right of Way Control Letter This letter is found on the Office of Real Estate web site. The only people who may sign this letter are the District Real Estate Administrator or, the District Planning and Engineering Administrator or, the District Deputy Director. The Certification of Right of Way Control Letter is addressed to the Administrator, Ohio Division Office, FHWA if the project is federalized meaning there are Highway Trust Funds anywhere in the project. If there are no Highway Trust Funds in the project, the Letter is addressed to the Administrator of the ODOT Office of Estimating. B. Acquisition All Certification of Right of Way Control Letters must contain a statement that right of way has been acquired in accordance with current FHWA directives covering the acquisition of

7 2400 RIGHT OF WAY CERTIFICATION real property. If all right of way is not yet acquired, the letter must state that some right way remains to be acquired, but will be acquired in accordance with FHWA directives. If no additional right of way is needed for the project, the district shall issue the Certification of Right of Way Control Letter 1. C. Relocation If the acquisition of the right of way results in residential displacement, no Certification Letter may be issued until: 1. All individuals and families have been relocated to decent, safe and sanitary (DS&S) housing, or, 2. The district has made adequate replacement housing available to displaced people in accordance with provisions of current FHWA directives covering the administration of the Highway Relocation Assistance Program. A Certification of Right of Way Control Letter 3 is issued if this option reflects the relocation status of the project. All Certification of Right of Way Control Letters must contain a statement that steps relative to relocation advisory assistance and payments as required by current FHWA directives covering the administration of the Highway Relocation Assistance Program have been taken. D. Certification of Right of Way Control Letters There are three types of Certification of Right of Way Control Letters. The selection of the letter is dependent on the degree of control a district has of the right of way needed for the project. The letters are: 1. Certification of Right of Way Control Letter 1 a. This letter is used when all right of way has been acquired, physical and legal possession has been obtained, and occupants have vacated the project area. If any real property was appropriated, the district has obtained the right to physical possession and any occupant has vacated the property. Where pertinent, the district has control of all necessary access rights. There may be some improvements remaining in the right of way, but all occupants have vacated the lands and improvements. The district has physical possession and the rights to remove, salvage, or demolish any necessary improvements and may enter onto all land required for the project. i. There can be no rights of entry and/or there can be no conditions with this category of certification. b. This is a final Certification Letter. No other certification needs to be issued as the contractor can enter upon all right of way necessary for the project as of the date of the issuance of the Certification of Right of Way Control Letter

8 2400 CERTIFICATION OF RIGHT OF WAY CONTROL Certification of Right of Way Control Letter 2 a. This letter is used when the district has not acquired all necessary right of way, but has obtained the right to occupy all right of way necessary for the project. If property is appropriated, the district has obtained the right to physical possession and any occupant has vacated the property. On other properties where full legal possession has not been obtained, a right of entry has been obtained. The occupants of all lands and improvements have vacated and the district has physical possession and the rights to remove, salvage, or demolish any necessary improvements and may enter onto all land required for the project. b. This is a final certification letter. No other certification needs to be issued as the contractor to enter upon all right of way as of the date of the issuance of the Certification of Right of Way Control Letter 2. c. For those parcels where rights of entry secured physical possession of the right of way, the districts must still proceed to acquire or appropriate to obtain the ownership interest as required in the highway plans. d. When a Railroad (Construction) Agreement is required, the district shall issue a Certification of Right of Way Control Letter 2 as a right of entry is granted by use of this agreement unless other conditions require the use of a Certification of Right of Way Control Letter Certification of Right of Way Control Letter 3 a. This letter is used when the district does not yet control all right of way needed for the project. The right of way for most parcels have been acquired, but some right of way is not acquired and/or, the right to occupy all necessary right of way has not been obtained and/or, some occupants have not vacated the right of way necessary for the project and/or; if appropriated, the district has not obtained the right of possession and/or the occupant has not yet vacated the appropriated property needed for the project. b. A district office may not issue a Certification of R/W Control Letter 3 without the written concurrence of the Administrator of the Office of Real Estate of ODOT. The Administrator may issue an to the FHWA Division Office detailing his concurrence of certifying the right of way with conditions. c. This certification requires a statement that the acquisition or right of occupancy and use of a few remaining parcels is not complete, and if there is relocation, all occupants of the residences of such parcels have had replacement housing made available to them in accordance with 49 CFR d. The district may request authorization on this basis only in very unusual circumstances. This exception must never become the rule. e. Under these circumstances, advertisement for bids or force-account work may be authorized if FHWA finds that it will be in the public interest. The physical

9 2400 RIGHT OF WAY CERTIFICATION construction may then also proceed, but the district shall ensure that occupants of residences, businesses, farms, or non-profit organizations who have not yet moved from the right of way are protected against unnecessary inconvenience and disproportionate injury or any action coercive in nature. i. In some instances FHWA may require a delay in awarding the project or providing notice to proceed until access to the right of way is acquired. Where it is determined that the completion of such work in advance of highway construction is not feasible or practical due to economy, special operational problems and the like, there shall be appropriate notification provided in the bid proposals identifying the right of way clearance, utility, and railroad work which is to be underway concurrently with the highway construction. ii. To provide notification in the bid proposal requires an entry and description in the Utility Note, or, a Plan Note in the Construction Plans. f. Once the conditions have been eliminated, the conditional certification must be followed up with a final certification letter which is either a Certification of Right of Way Control Letter 1 or a Certification of Right of Way Control Letter 2. The final certification letter must reference the previous conditional certification and must explicitly state that all conditions have been removed and the contractor can enter onto all right of way necessary to construct the project. E. Status of the Required Right of Way 1. The parcel count is required on all Certification of Right of Way Control Letters. The parcel count is to comply with the standards in section 2405 of these procedures. 2. The status of all parcels needed for the project is required on all Certification of Right of Way Control Letters. The status will identify the parcel (parcel identification to comply to the standards in section 2405 of these procedures) and the date that control of the parcel was obtained by the district. a. For temporary only easements needed for construction purposes, the recording of the easement is at the discretion of the district; therefore, the date the instrument was signed by the seller is adequate to document the date of control by the district. F. The Utility Note 1. General The Utility Note provides all current information regarding utility relocations. The information contained in the Utility Note at the time of submission of the Certification of Right of Way Control Letter is entered into the letter. Additionally, the information on the Utility Note is posted onto the ODOT O-drive so the ODOT Office of Contracts may merge information about utility relocations into ODOT s bid proposal document (Proposal, State of Ohio, Department of Transportation). 24-8

10 2400 CERTIFICATION OF RIGHT OF WAY CONTROL When the Certification of Right of Way Control Letter requires a Utility Note, the utility conditions are listed on the Utility Note so bidders are aware and may consider any right of way conditions in their bid proposals. 2. Utilities must be discussed in all certifications. If there are no utilities involved in the project, the Certification Letter states that and there will be no Utility Note needed. If there are utilities in the existing right of way, in the proposed right of way or the construction limits of the project, a Utility Note must be inserted into the Certification Letter. Even if the utility does not have to be relocated, the Utility Note must identify the utility, state no relocation is needed and provide a utility contact. If the utility needs to be relocated, the Utility Note must identify the utility, provide information on the utility relocation schedule and provide a utility contact. 3. The Utility Note has to contain the date it is submitted to the District REA. 4. The Certification Letter does not need to be updated to reflect any changes to utility relocation after certification. Any revisions to the Utility Note will be posted onto the ODOT O-drive. 5. Reference the 8200 section of the Real Estate Manual for more information concerning utilities Defining a Parcel for the Certification A. Defining a Parcel A parcel may be more than a parcel listed on the right of way plan. Clearing a parcel may require a district s attention to multiple ownerships and/or occupants of the same parcel number identified in the right of way plans such as a fee owner, a tenant-owner of an acquired improvement, an owner occupied residential displacement or a tenant occupant commercial displacement. A parcel that is identified on the Certification of Right of Way Control Letter requires a negotiation and/or a relocation offer to an owner and/or an occupant. A negotiation offer requires a NIAGFO (Notification of Intent to Acquire and Good Faith Offer) to be issued to the owner. A parcel is not based on the number of property rights obtained from an owner. Several examples are presented to provide guidance: Example The R/W plan details the following acquisition from Parcel 5 which is owned by James and Dora Wood - WD, WL, WL-1, WL-2, CH, T, T-1. Assuming there are no other owners of any improvements and there is no displacement of any occupant, the number of parcels reported on the Certification of Right of Way Control Letter is 1 (all of the property rights are negotiated from one ownership). Example The R/W plan requires Parcel 8. The fee owner is Robert Brown, a single man. The property is leased to another for 10 years and the property is encumbered by a mortgage requiring a mortgage release. The acquisition does not displace the tenant 24-9

11 2400 RIGHT OF WAY CERTIFICATION occupant. The number of parcels reported on the Certification of Right of Way Control Letter is 1 (the activity required to secure the mortgage release and if needed, the release of lease are not considered to be separate parcels). Example The R/W requires Parcel 10. The fee owner had died and 3 children inherited the property. The estate had been probated and there are no issues related to the title of the property. These children are Fred Smith, Bill Smith and Alice Smith-Cooper. The property is a vacant site and the project requires the whole property. The offer of compensation (NIAGFO) requires one offer naming all three children as the fee owner. The number of parcels reported on the Certification of Right of Way Control Letter is 1. Example The R/W plan requires Parcel 12. It is the whole take of a single family residential structure. The dwelling is occupied by the owner who is single. There are no tenants of any kind associated with the property. The number of parcels reported is 2 (Negotiation with fee ownership and relocation activity to move the owner/occupant out of the right of way). Example The R/W plan requires Parcel 15. It is a strip take from the fee owner. The property is leased to a tenant and in the right of way needed for the project is a sign that all parties acknowledge is real property owned by the tenant. The number of parcels reported is 2 (Negotiation with fee ownership and a separate negotiation with the tenant-owner of the real property improvement that is taken). Example The R/W Plan requires Parcel 18. It is the total take of a 5 unit commercial strip center. The building is 100% occupied by 5 different commercial tenants. The owner of the property is ABC, Inc. The number of parcels reported is 6 (Negotiation with the fee ownership which is 1 parcel and relocation activity to move the 5 tenant occupants out of the right of way is another 5 parcels). 1. The Parcel Prefix To avoid confusion in reporting accurate, meaningful information on the Certification of Right of Way Control Letter, the districts must use the same parcel number identified on the right of way plans as the prefix for the acquisition parcel. This prefix will also identify any negotiation with the fee ownership of a property. For example: Example The R/W Plan identifies a parcel as 10. Ten becomes the prefix for the identification of the acquisition parcel. Assume there are no other ownerships or entities that must be acquired in this example. Assume there is no displacement/relocation associated with this example. Therefore, the only negotiation will be with the fee owner. The parcel is listed as

12 2400 CERTIFICATION OF RIGHT OF WAY CONTROL 2. The Parcel Suffix The suffix follows the prefix and must identify the ownership/entity (other than the feeowner) requiring an action by the district to clear the right of way for the certification process. For example: Example A sign is located in the take area. The sign is acknowledged to be real property and is owned by a tenant. The sign must be acquired and requires a negotiation separate from the negotiation with the fee owner. To clear the right of way requires a negation with the fee owner and another negotiation with the tenant-owner of the sign. The negotiation with the tenant-owner is identified as 10-BS 1. The negotiation with the fee owner is identified as Parcel Identifiers Used to Identify Negotiation Parcels Fee Owner of the Parcel R/W Plan Parcel (Parcel 10) Tenant-Owner of an Improvement on the Parcel BS 1 (10-BS 1) Another Tenant-Owned Improvement On the Same Parcel 10-BS 2, 10-BS 3, etc. 4. Parcel Identifiers Used to Identify Relocation Parcels The descriptors for prefixes and suffixes are the same as described in section 6107 of the Real Estate Manual (General Relocation Requirements Parcel Numbers). Residential Owner 10-O Residential Tenants 10-1, 10-2, 10-3, etc. Business Owner 10-OB Business Tenants 10-1B, 10-2B, 10-3B, etc. Personal Property Only, Owner 10-OP Personal Property Only, Tenants 10-1P, 10-2P, 10-3P, etc. The prefix for each relocation parcel number shall coincide with the parcel number assigned to the acquisition function exclusive of the property right to be acquired. The suffix will designate the type of the relocation parcel and differentiate the parcel from other parcels which may exist on the same acquisition parcel. Above is an example of parcel numbers which would be used with acquisition parcel number 10. Residential tenants must always have a suffix such as 10-1 or 10-2 and cannot be listed as 10 with no suffix as the residential tenant relocation parcel would be easily confused with the fee owner acquisition parcel which would be identified as

13 2400 RIGHT OF WAY CERTIFICATION 2406 Definitions and Explanations Acquire - The district or LPA has title to the property. The acquisition was done in compliance with the Uniform Act. The owner has been paid and the instrument has been recorded. If ownership has not changed into the name of the acquiring agency and the agency cannot enter onto the property, the parcel is not acquired. Appropriation - The Director of ODOT is provided the power of appropriation in the Ohio Constitution and the Revised Code and therefor, may exercise his right of eminent domain and take property needed for transportation projects. This power is not absolute and is subject to limitations. Generally, ODOT has quick take authority (the right to immediate possession of the right of way) when it deposits FMVE into the court. When the take includes a structure, the owner/occupant has 60 days after he has been served a summons notifying him that ODOT has filed a petition of appropriation in the courts to vacate the property. ODOT generally will not have the right to possession until the court issues an Order of Possession to remove the structure and, the occupant of the structure has actually vacated the premises. There are occasions when possession can be quickened by other such orders from the court, but this is a case-by-case situation and requires close coordination with the Ohio Attorney General s Office. When the occupant has not moved and/or the district does not have the right of possession, the contractor cannot get onto the property and, the district must issue a Certification of Right of Way Control Letter 3. In this situation, the district and the Attorney General s Office must communicate when possession is needed for construction of the project and adequately detail this information. For these reasons, relocation parcels where the owner has not vacated the right of way prior to the appropriation must be closely monitored to assure the contractor can enter upon all right of way needed for the project. ODOT generally acquires the right to physical control of the property upon filing the petition for appropriation and depositing the fair market value with the court. Legal title to the property does not occur until the end of the appropriation after the judge issues a judgment entry documenting compensation and vesting title to the State of Ohio. This judgment entry must be recorded by the district. Authorization - If a project is federalized meaning there are Highway Trust Funds anywhere in the project, the agency (ODOT/LPA) must have Federal authorization from FHWA prior to being allowed to advertise the physical construction for bids or to proceed with force account construction. The agency must certify the degree of control it has of the right of way needed for 24-12

14 2400 CERTIFICATION OF RIGHT OF WAY CONTROL the project in compliance with these procedures. If there are no federal funds in the project, the agency (inclusive of the LPA) must still comply with these procedures. Certification of the Right of Way - It is the oath by someone of authority in ODOT attesting to the degree of the control their district has of the right of way needed for the project as of a specific date and the manner by which control of the right of way was obtained. If there are Highway Trust Funds anywhere in the project, the district certifies to FHWA. If there are no Highway Trust Funds in the project, the district certifies to the ODOT Office of Estimating. Clearing Right of Way - The act of controlling the right of way needed for the project. It requires the actions necessary to control the right of way so that ODOT has physically possession allowing the contractor to enter onto the right of way needed to remove, salvage or demolish any improvements as required by the project. Right of way that is not cleared may only be certified by use of a Certification of Right of Way Control Letter 3 which identifies the conditions of the certification. A district must obtain the concurrence of the Administrator of the Office of Real Estate before issuing this category of certification. LPA projects may not issue a Certification of Right of Way Control Letter 3. Control of Right of Way - The district has obtained the necessary property rights and has secured adequate control of the right of way allowing the contractor to enter upon the property needed for the construction of the project. At a minimum, the district must have physical possession which generally occurs by transfer of title to ODOT or a right of entry or an appropriation, and if the property was occupied, the occupant has moved from the right of way necessary for the project. Encroachments - The district must remove all encroachments from the right of way or have a definable plan for removal during construction or issue a revocable permit and explain that the encroachment does not adversely affect construction or the safety of the travelling public. Leases - All leases involving right of way needed for the construction of the project must be terminated prior to the issuance of the certification. LPA Projects - LPA is the acronym for Local Public Agency. An LPA Project is sponsored by the LPA meaning the project is motivated by the LPA but requires funding from the Highway Trust Fund or ODOT and therefore, requires oversight by ODOT. LPA projects require consent legislation and/or LPA Agreements, a Real Estate Agreement or a Letter of Understanding. LPA projects can be ODOT let or Local let meaning either ODOT or the LPA can advertise, let, administer the construction contract and manage the construction phase of the project. The ODOT Office of Local Programs has oversight of the LPA program

15 2400 RIGHT OF WAY CERTIFICATION LPAs are subject to ODOT oversight when there are Highway Trust Funds anywhere in the project or the LPA has a project impacting a Federal or State route. When an LPA is subject to ODOT oversight, it must comply with the Real Estate Manual promulgated by ODOT s Office of Real Estate, Division of Engineering and all appropriate Federal directives and regulations. The procedure to certify right of way as established by these procedures is applicable to ODOT and to LPAs subject to ODOT oversight. FMVE - The acronym is Fair Market Value Estimate. It is the amount of compensation initially offered to the owner for the property needed for the project. It is based upon an appraisal/valuation that has been reviewed and recommended by a review appraiser as the basis of compensation. The District Real Estate Administrator considers this recommendation and any other pertinent information and then establishes the amount to be offered to the owner. Approved NEPA Document - No Right of Way Certification may be issued until the NEPA document is approved. FHWA has approved ODOT s Planned Development Process (PDP) allowing the acquisition functions of title research, appraisal, appraisal review and the establishment of FMVE to occur during the preliminary engineering phase of the project and prior to the NEPA document being approved. If there is federal-aid in acquisition, districts may not initiate negations until the NEPA document is approved. If there is federal-aid in the project, but no federal funds in acquisition, a district may initiate negotiations prior to the approved NEPA document if the document is a Categorical Exclusion 1 or less and these actions will not prejudice the ultimate decision of the program. Owner - Is defined in Ohio eminent domain law, ORC (E), and is any individual, partnership, association, or corporation having any estate, title, or interest in any property sought to be appropriated. Any acquisition subject to the threat of appropriation is an appropriation of the property under Ohio law (ORC (E) and ). Owner-Retained Structures and/or Improvements -An agency may allow an owner to retain an improvement (49 CFR (c). However, the district must assure the improvement is out of the right way necessary for the project. If the improvement is in the right of way as of the date of the issuance of the certification, the district is to use the Certification of Right of Way Control Letter 3. Railroad Agreements - A Railroad Agreement is executed by all parties if the project requires right of way from an active railroad corridor. If a Railroad Agreement is executed, the district has obtained possession by right of entry and will issue a Certification of Right of Way Control Letter 2. If a Railroad Agreement is needed but not executed, the district will issue a Certification of 24-14

16 2400 CERTIFICATION OF RIGHT OF WAY CONTROL Right of Way Control Letter 3. Relocation - Residential Relocation - It is the relocation/displacement of individuals and families from a dwelling. There are DS&S assurances and statements required in the Certification Letter regarding these relocations. These occupants are required to vacate the right of way needed for the project. Residentially displaced people must be offered comparable replacement housing that is within their financial means and that is available for occupancy no less than 90 days before being required to move. The relocation process must comply with the Uniform Act, FHWA directives and ODOT s Real Estate Manual. - Non-Residential Relocation - It is the relocation/displacement of businesses, farms and nonprofit organizations. No DS&S assurances are required for the certification, but certain statements are required. These occupants are required to vacate the right of way needed for the project. The relocation process must comply with the Uniform Act, FHWA directives and ODOT s Real Estate Manual. Right of Entry - A property right providing a district the right of possession to the property needed for the project. The property right is obtained by the district from the owner and if necessary, the tenant-occupant, of the property needed for the project. The document used to obtain this right is a Right of Entry Contract which must be signed by all parties and must have the necessary Exhibit(s). The right of entry is a voluntary agreement between the district and the owner/occupant. The district must continue to negotiate with the owner to obtain the property rights needed per the highway plans. See Sufficient Property Rights. Sufficient Property Rights - The interest in real property acquired for the project when federal-aid participates in the project must be adequate for the construction, operation, maintenance and protection of the facility and the travelling public. The federal requirements are 23 CFR 1.23 and 23 CFR (e). Utility Note The Utility Note provides current status information regarding all utility relocation required for the highway project. The Utility Coordinators in the districts are responsible for maintaining the Utility Note. The Utility Note information is posted on the ODOT O-drive. When the right of way is to be certified, the Utility Coordinators provide the current status of utility relocations to the DREA. This information must be in a format that is compliant to the standards of the Utility Note. The DREA inserts this information into the Certification Letter which is sent to the Office of Estimating as part of the PS&E/Plan Submittal package. If utility relocation activities remain to be completed after the date of the

17 2400 RIGHT OF WAY CERTIFICATION Certification Letter, the Utility Note will be updated with the information posted onto the O-drive. The districts do not need to update the Certification Letter for utility issues. When ODOT seeks Authorization to Advertise for Construction Bids, the current Utility Note on the O-Drive is included in the PS&E package submitted to FHWA. This will occur when ODOT s Office of Accounting enters information into FMIS. FHWA can review the Utility Note on the O-drive. If utility relocation activities remain to be completed by the Advertising Date for Construction Bids, the current Utility Note will reflect that information so there is adequate notification to the bidders who in turn can reflect these conditions in their bid proposals. After Federal authorization, but prior to advertising for bids, the ODOT Office of Contracts merges the Utility Note information posted on the O- drive into the ODOT notification for bid document (Proposal, State of Ohio, Department of Transportation). This is the legal document used by the contractors to base bid proposals