Frequently Asked Questions From the Certification of R/W Training Sessions

Frequently Asked Questions From the Certification of R/W Training Sessions 1. There are differences between appropriations of vacant land and appropriations of structures. What is a structure? A structure is something capable of holding people or things. Examples of structures include homes, commercial buildings, garages, sheds). 2. Personal property occupies the right of way needed for the project, but is not within any structure. If the property is appropriated, does ODOT have the right to immediate possession or is possession delayed as ODOT needs to comply with the requirements of a structure appropriation? ODOT does not have possession of the area occupied by the personal property, thus the personal property must be removed from the right of way. If the owner of the personal property refuses to move it out of the R/W, the acquiring agency would have to enlist the assistance of the court and a judge would need to issue an order of possession to remove the personal property. However, this is not considered an occupied structure and the requirements for structure appropriations listed in R.C. 163.06(B) do not have to be completed. The owner of personal property occupying the R/W needed for the project may be eligible to receive relocation benefits. 3. Does the ODOT Office of Real Estate have a standardized Utility Note listed on their web page? Yes, see the Utilities Section of the Real Estate Manual. The Manual is listed on the Office of Real Estate s web page. 4. Currently on LPA projects, an Exhibit B and a Utility Note are attached to the Certification Letter. Section 8208 of the Utility Manual requires this procedure. You have stated in this training session that attachments to Certification Letters will no longer be accepted after April 1, 2014. What are districts to do regarding the Exhibit B and the Utility Note? The Exhibit B and the Utility Note will no longer be accepted as attachments to the R/W Certification Letter. Rather, the information found on the Utility Note and Exhibit B that discuss utility status, work authorization, start date, complete date is to be inserted into the Certification of Right of Way Control Letter. Section 8208 of the Utility Manual will be updated to reflect these new processes. 5. In this training you stated the Utility Note information is put onto the ODOT O-drive and changes in utility relocation status is also updated on the O-drive by the District Utility Coordinator. On a Local- Let project, the LPA sells and administers the construction contract; therefore, the LPA addresses any utility relocation updates. However, on ODOT-Let / Locally Sponsored projects, how does the LPA input utility information onto the O-drive when they have no access to this drive? Page 1 of 9

For ODOT-Let / Locally Sponsored projects, the LPA is to submit updated utility relocation information to the District Real Estate Administrator and/or the District Utility Coordinator who will update the Utility Note information on the O-drive. 6. Districts have local projects known as Safe Routes to School projects. Often, these projects are sidewalk connections or bike racks placed on school properties. The school property is not in road right of way, so an Agreement Letter is signed by the school and the local agency and this agreement is attached to the Certification Letter. Should these Agreement Letters still be attached to Certification Letters under the new process? Nothing is attached to the Certification Letter. As no new right of way is required for a Safe Routes to School Project, the Certification of R/W Control Letter 1 should be used and the district may reference the Agreement Letter in the certification. As the district desires to emphasize the Agreement Letter, perhaps its statement regarding the agreement should be a stand-alone paragraph. 7. What occurs first, the Railroad Construction Agreement or the acquisition of rights of way from a railroad corporation? For ODOT-Let projects, the Railroad Agreement comes first as railroad corporations will not enter into negotiations until the Railroad Agreement is signed. As a result, highway projects are certified as cleared with a signed Railroad Agreement in place because it provides a right of entry. The actual acquisition of the property often occurs 18 to 24 months after the Agreement is signed. 8. Can an agency cut off utilities to a displaced person who is still occupying the right of way needed for the project? No, this is a coercive action as detailed in 23 CFR 635.309(C)(3). The agency needs to coordinate any required legal action with its attorneys. This legal action could include an eviction (forcible entry and detainer) action. 9. A district has oversight of an LPA project, the LPA owns additional property adjacent to their highway project and the LPA is planning on using this additional property for their post-construction BMP measures. This additional property is not road right of way. In the past, the LPA stated on their certification that construction work limits for the project are in existing road right of way or on property owned by the LPA. Can an LPA still describe this situation in its Certification Letter under the new process? Yes. 10. On an ODOT-Let project, a district may request from the Office of Estimating an Exception to File Right of Way. How fast can the Office of Estimating respond to this district request? Page 2 of 9

A district is to make the request by email sent to Debra Neal Harris and with cc to Steve Trendy in the Office of Estimating. Depending on workload, the Office of Estimating will respond on the same day received or a day or two later. In the event Ms. Harris is out of the office, Mr. Trendy will respond. If a district has not received a response in a day or two, it should place a phone call to the Office of Estimating an again request an Exception to File R/W. 11. Can an LPA sponsored project that is ODOT-Let be certified with a Certification of Right of Way Control Letter 3? Yes, subject to all the limitations associated with a Certification of R/W Control Letter 3 such as pre approval by the Administrator, Office of Real Estate. 12. These new procedures become effective April 1, 2014. Will there be a transition period for older projects to close out before the new procedures become effective? No. Any Certification Letter issued as of April 1, 2014 and forward will comply with the new procedures. There is no phase-in period. 13. A property owner s fence encroaches into the right of way and this fence holds back livestock from the road. How is this encroaching fence dealt with in the Certification Letter? The certification process requires all encroachments to be dealt with as follows: 1) no encroachments; or, 2) all encroachments have been removed; or, 3) the encroachment will stay in the R/W and a permit will be issued for its existence; or, 4) a definable plan for removal. Numbers 1 and 2 do not apply to the question. Therefore, a district may do Numbers 3 or 4. If the fence must be removed by the project, the district must assure that the fenced-in animals do not roam into the road right of way. Therefore, a district may insert into the bid proposal that the construction contractor install a new fence. The district may seek reimbursement from the property owner. 14. Could a property owner be charged for improvements that are in the existing right of way? The district should first follow the obstruction removal procedure outlined in the Real Estate Manual. In the event an owner refuses to remove the improvements, a district may insert into the bid proposal that the contractor is to remove the improvements and then a district may seek reimbursement from the owner. 15. How many rights of entries constitute a few on a project? 49 CFR 24.102(j), in part, states the following In exceptional circumstances, with prior approval Page 3 of 9

of the owner, the agency may obtain a right of entry for construction purposes before making payment available to the owner. Therefore, the use of ODOT right of entry (ROE) contract is a viable way to gain control of the right of way. However, the exact point at which the use of ROE goes beyond exceptional circumstances is difficult to substantiate. A general rule is that only a minority of parcels should be cleared by use of the ROE. The more ROEs that are used on a project, the greater the likely hood of a challenge. 16. Should it be mandatory that a right of entry contract be recorded? The current procedures in the Real Estate Manual, section 5307.01(E), states The District may record the right of entry contract anytime and for any reason. It is prudent to record executed rights of entries ensuring the right of ODOT s contractor to be on the property. The procedures have been created to allow districts flexibilities in delivering their programs. At the current time, it remains a district decision to record or not record a right of entry contract. 17. How do you hold utility companies accountable to relocate their utility lines by the date of the issuance of the Certification of R/W Control Letter? A utility in existing ODOT right of way is there by permit and if the utility is to be relocated back into ODOT R/W, the utility company cannot do the relocation work until the R/W is certified. The purpose of utility relocation and the utility coordinators is to work with each utility company and do their best to motivate these companies to relocate in accordance with the project schedule and the schedule provided by the utility company. If there is a problem, the district is to involve the Manager of the Utility Section of the Office of Real Estate. This manager will work with the utility companies and if needed, will go the ladder of the utility companies bureaucracy to solve any relocation problems. If lack of response by a utility company causes contractor delay claim costs, ODOT may go after the utility company for reimbursement. 18. What is the process when utility work remains to be done after the date of the Certification of R/W Control Letter? Often utility relocation work remains to be completed after the issuance of the Certification Letter, but the Cert Letter does not need to be updated to reflect changes in status of utility relocation. After certification, the district utility coordinators update utility status on the O-drive and this updated information can be viewed by FHWA during its review of the PS&E and the updated utility information will be used by the Office Contracts when it creates the ODOT bid proposal when seeking construction bids. 19. An LPA is required to issue the LPA Certification of R/W Control Letter to the district and then, the district is required to issue its Certification of R/W Control Letter certifying to the degree of R/W control the LPA has of the right of way needed for the project. Does a district just copy the information in the LPA Letter into the district Cert Letter and send it on or does the district attach the LPA Certification Letter to the district s Cert Letter? Page 4 of 9

No attachments are to be part of any Certification of R/W Control Letter. The district will include the LPA s certification information into the district Certification Letter. Districts are cautioned to not mindlessly copy and paste an LPA s certification information into the district Cert letter. A district is responsible for the accuracy on any information in any Certification Letter it issues. 20. What Certification Letter is used when an LPA acquires the R/W and the project is ODOT Let? The LPA will issues an LPA Certification Letter to the district. The district will then issue a Certification of R/W Control Letter 1, 2 or 3. 21. How are temporary easements needed for construction (T parcels) shown on the Certification Letter? For a T-only acquisition, the district just lists the T parcel under the appropriate section of the Status Report Section of the Certification Letter. A T parcel may or may not be recorded per the Real Estate Manual, see section 5704(B)(1) and the limitations associated with recording. If the T is recorded, list the date of recording and the Volume/Page. If the T is not recorded, state the T was not recorded, but the instrument was signed on (insert the date). 22. What is the time frame for district possession of right of way when the appropriated property includes a non-residential occupied structure in the take area? In many instances the district obtains possession when the occupant has moved from the structure and turned over the keys to the district. If the structure still is occupied when the appropriation case is filed, O.R.C. 163.06(B) requires the owner and occupant to vacate the structure within 60 days after service of summons. The Assistant Attorney General can obtain a court order requiring the structure to be vacated by that date, directing the district to do a Red Book structure appraisal, and confirming the district's right to remove the structure after that date has passed. In rare instances an owner or occupant may not comply with that order, and further legal action (such as an eviction or contempt-of-court proceeding) may be necessary. The time frame for district possession of a structure will vary depending on facts specific to each case and the actions of the court. In all cases, however, the district must have close coordination with the Ohio Attorney General s Office. 23. Do railroad parcels count as acquisition parcels? A railroad-owned parcel is an acquisition parcel when the project requires the acquisition of a property right from a railroad corporation. This acquisition parcel is included in the parcel count and the status report detailed in the Certification Letter. Generally for railroad parcels, control of the right of way needed for the project is obtained by a Railroad Construction Agreement that occurs prior to the date of the Certification Letter. Page 5 of 9

24. The project is for repaving and requires no new right of way. The project will occur within existing rights of way. This repaving area will overlap an active rail line. Is a Railroad Agreement needed and if so, what Certification Letter is used? A Railroad Construction Agreement is needed. Federal regulation 23 CFR 646.216 requires an agreement between the state agency and the railroad corporation when the project impacts an active rail line (just because tracks have been removed does not mean that the rail line is no longer active). Per the question, the project requires no new right of way. Therefore, the district is to issue the Certification of R/W Control Letter 1 and the first paragraph of the letter will state: STATUS OF THE REQUIRED RIGHT OF WAY: The acquisition of right of way was not required. All work proposed is within existing right of way. Then under STATUS OF RAILROAD OPERATING FACILITIES, the district shall insert the following: The project will impact the following railroad operating facilities and the State has secured a Railroad Agreement from the railroad corporations operating these facilities. This Agreement allows the State onto the railroad facilities to construct the project. Railroad Facility Railroad Agreement No. Date of Agreement 25. How are encroachments in existing R/W to be documented in the Certification Letter when the project required no acquisition from the owner having the encroachment? The encroachment must be dealt with in the Certification Letter if it is within the construction limits required for the project. This can include: removal of the encroachment or, issue a permit for the encroachment or, have a definable plan for removal. If the encroachment is outside the construction zone, the district does not have to detail the encroachment in the Certification Letter, but it should request the owner to remove the encroachment for the right of way. 26. An encroachment is within the existing R/W. Can the definable plan for removal include the owner is responsible for moving the encroachment? This definable plan is not recommended because a district does not control the owner and there can be project-related consequences if the owner does not remove the encroachment by the date stipulated in the Certification Letter? Instead, the definable plan for removal should read The owner or the contractor shall remove the encroachment. This limitation can be inserted as a Plan Note so the bidder is aware of the encroachment and that he may be required to remove the encroachment. 27. Can parcel modifiers denoting the various property rights to be acquired (10 WD, WL, A, CH, T) be listed on the Certification Letter? Page 6 of 9

Yes. Examples are: Quick Take Parcels Parcel No. Case No./Filing Date Comments 44 WD, T, T1 CI 2013-3626 / 10/11/3 None Right of Entry Parcels Parcel No. Date ROE Contract Signed Comments 45 WD, CH, A, T 10/23/13 None Acquisition Parcels That Are Acquired Parcel No. Date Instr. Rec./Vol.Pg. Comments 62 WD, CH WD 10/24/13 20130702-0034762 None CH 10/24/13 20130702-0034761 None 28. Can a final certification be issued after the construction phase of the project begins? It is possible if FHWA approved the use of a Certification of R/W Control Letter 3 and, authorized ODOT to advertise for construction bids and, allowed ODOT to award the construction contract based upon the Cert 3 Letter and, all of this was based on representations in the Cert. 3 Letter describing that control of the right of way would occur during the construction phase. Once control of the R/W is secured, the district would then issue a final certification that would be either of Certification of R/W Control Letter 1 or 2. The question and answer represents an improbable scenario. 29. A district has acquired, closed, disbursed funds and recorded the instruments of all property rights needed for a simplistic 10 parcel project. How simple can the Certification Letter be? All Certification Letters must comply with the procedures. This question describes a situation where a Certification of R/W Control Letter 1 is issued. All parcels must be accounted for in the Parcel Count Section of the Cert Letter and the acquisition status of each of these parcels must be described in the Status section of the Letter. Based on the information from this question, the status information requires identification of the parcel, date of each instrument recorded and the volume/page of each recorded instrument. 30. If a Certification Letter cannot be issued until the Environmental document is approved, isn t it also true that no acquisition can begin until the Environmental document is approved? This statement in general was true of the old Plan Development Process (PDP) used at ODOT. However, the PDP has been amended and this new/current PDP has been accepted by FHWA. Based on the new PDP, a district may seek authorization from FHWA for certain R/W activities prior to acceptance of the Environmental document under the Preliminary Engineering Phase. The Office of Real Estate has created Inner Office Communications (IOCs) describing the Page 7 of 9

acquisition process under Preliminary Engineering. These IOCs are posted on the Office of Real Estate web site under Administrator s Corner and are dated September 4, 2012 Guidance Regarding Acquisition Activities During Preliminary Engineering and another dated January 28, 2013 Acquisition Prior to NEPA on Federalized Projects. 31. Is the chart on PowerPoint Slide No. 41 (Page 43 of the booklet) only applicable to state projects or does it include LPAs? The chart is applicable to ODOT-Let projects. It is possible to have a LPA Sponsored / ODOT-Let Project and the chart would still be applicable. The chart does not apply to any LPA-Let projects. 32. A Certification of R/W Control Letter 1 or 2 states the LPA or ODOT has control of the R/W and as of the date of the Certification Letter, the contractor can enter onto all R/W needed for the project. Does this also mean that all utilities have been relocated? This does not mean that all utilities have been relocated. The procedures require the current status of the utilities to be listed on a Utility Note that is updated on the ODOT O-drive. When the Certification Letter is created, the updated Utility Note is copied from the O-drive into the body of the Certification Letter. Generally, utility issues remain after the issuance of the Cert Letter and these utility issues are incorporated into the ODOT Bid Proposal document when the Office of Contracts copies the updated Utility Note information from the O-drive into its Bid Document. 33. What do you use to obtain a right of entry? ODOT has forms that have been pre-approved by the Office of the Ohio Attorney General. One of these forms is a Right of Entry Contract (form RE 222). In addition, ODOT has created a procedural process to obtain a right of entry which is described in section 5307 of the Real Estate Manual. 34. ODOT procedure does not mandate that T-parcels or Bill of Sale parcels be recorded. If these parcels are not recorded, what information is inserted into the Certification Letter? In part, the purpose of a Certification Letter is to adequately document that ODOT has obtained control of the R/W needed for the project and then communicate this documentation. Recorded instruments easily provide documentation. However, when property rights are secured and are not required to be recorded, the district may identify the parcel, then state the date the property right was conveyed to ODOT and by what means (contract or instrument) and then under the comments heading explain the property right was not recorded. 35. Should the type of taking be listed on the Certification Letter? The Certification Letter has been designed to adequately document and then communicate the Page 8 of 9

district has obtained control of the R/W. If a parcel series is acquired, i.e. 10 WD, CH, T, and each of the instruments are separately recorded, then each type of taking needs to be listed on the Certification Letter showing the property right (WD, CH or T), the date of recording and volume / page. This information provides documented proof to any reader that the district has obtained control of the R/W required for the project. 36. An LPA utilized the services of a consultant to obtain control of the rights of way needed for a project. Is the LPA responsible for the accuracy of the information in the Certification Letter when the acquisition function was performed by a consultant? Yes, an LPA is responsible for the accuracy of the information in its Certification Letter to ODOT. The LPA signs the Certification Letter and is therefore responsible for the accuracy of all information in the letter. When an agency engages the services of a R/W consultant, the consultant is acting on behalf of the agency. The agency is responsible for the information it receives from the consultant. Therefore, it is prudent for an agency to have some type of quality control check to assure the information is accurate and has been done in a manner compliant with the laws, regulations and procedures governing the acquisition of rights of way. 37. If a utility is not impacted do you still need to list the contact person and the telephone number of that contact on the Utility Note as shown in the example Certification of R/W Control Letter? The Certification Letters and procedures allow districts some flexibility. Non impacted utilities do need to be listed on the Utility Note with sufficient information / explanation allowing any reader to understand the utility is not impacted. Therefore, a contact name and number is optional, but is certainly a good practice. The Utility Section of the Real Estate Manual, 8000 series of procedures, will be updated in the future and information needed in the Utility Note will be explicitly detailed. Page 9 of 9