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November/December 1998· Vol. 62· No. 3

WE'RE ON THE EVE OF CONSTRUCTION

by Mike Jones

Visualize the start of construction on a major public project. Men and women with shiny shovels participate in the symbolic ground-breaking. Bulldozers rumble to life. Crews strap on their hard hats, and the project is underway.

Forgotten in the excitement of the ceremony and in the dust and noise of the construction is the long and often difficult process that led to this point — in particular, the critical last step before construction. That last step is the acquisition of the necessary land and other property rights by the appropriate government agency.

This is a mammoth undertaking. For example, in fiscal year 1997, the acquisition of real property was required in 11,136 transportation projects that received federal-aid funding. For these projects, 53,277 parcels of land were acquired for a total expenditure of almost $1.4 billion, and another $73 million was spent in compensation to the people involved in the 6,487 displacements. These numbers come from statistics provided to the Federal Highway Administration (FHWA) by state departments of transportation.

But the total cost cannot be measured in numbers. Highways and other federal projects are built on land — land that often has been in the same family for generations. Small and large businesses, built up with years of hard work, are sometimes displaced. Elderly tenants are forced to move. Farms are cut in half. Homes are demolished. It is a wrenching and often painful experience for those who live or work on this land.

But there are protections to cushion the impact and to compensate those who are affected. The most powerful protection is found in the United States Constitution. It is in the Fifth Amendment: " ... nor shall private property be taken for public use without just compensation."

This very basic statement served reasonably well until the latter half of the 20th century, when Congress realized that more specific protections were needed for federal land acquisitions. In 1970, Congress enacted what is popularly referred to as the "Uniform Act" (as amended). Like most federal laws, its true name is a real mouthful: The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.

Why Is the Uniform Act So Significant?
All federal, state, and local public agencies and others receiving federal financial assistance for public programs and projects requiring the acquisition of real property must comply with the policies and provisions set forth in the Uniform Act, its amendments, and the implementing regulations in the Code of Federal Regulations, Title 49, Part 24. The acquisition itself does not need to be federally funded for the rules to apply. If federal funds are used in any phase of the program or project, the rules of the Uniform Act apply. The rules encourage acquiring agencies to negotiate with property owners promptly and amicably to avoid litigation whenever feasible.

We're the Lead Agency and We're Here to Help You
The mission of FHWA's Office of Real Estate Services (ORES) is to protect the rights of property owners and displaced persons, to promote consistently high-quality program management by public agencies, and to protect the public's interests and investment in real property before and after a project is constructed.

The U.S. Department of Transportation (DOT) and 16 other federal agencies are subject to the provisions of the Uniform Act. The Uniform Act amendments of 1987 designated DOT as the federal "lead agency" for the Uniform Act. Duties include the development, issuance, and maintenance of the governmentwide regulation; providing assistance to other federal agencies; and reporting to Congress. This responsibility has been delegated to FHWA and is carried out by ORES.

Varied means are used to assist partnering agencies in maintaining Uniform Act compliance and quality assurance. One of the most effective is the provision of technical assistance. Upon request, the ORES staff provides informal training on specific issues relating to real property appraisal, acquisition, and relocation assistance. Additionally, a number of formalized training courses are provided annually by ORES through the National Highway Institute (NHI).

1998 Annual Lead Agency Meeting
As part of its role as the lead agency, ORES hosts an annual meeting of all 17 affected federal agencies. These meetings provide a practical and beneficial forum for representatives of all the agencies to network and to tackle problem areas relating to the Uniform Act. Forty-one people representing the 17 agencies attended the last Lead Agency Meeting on June 25, 1998, at the headquarters of DOT in Washington, D.C.

"Illegal Aliens Act"
This year's dominant issue is a 1997 federal law that generally prohibits the provision of relocation benefits or assistance to known illegal aliens. Public Law 105-117, 111 Stat. 2384, was enacted on Nov. 21, 1997. This law amends the Uniform Act and states that an alien who is not lawfully present in the United States is not eligible for relocation benefits or assistance in accordance with the Uniform Act unless the denial of eligibility would result in an exceptional and extremely unusual hardship to the alien's spouse, parent, or child who is a citizen or is lawfully admitted for permanent residence in the United States. The amendment applies only to the relocation-assistance provisions of the Uniform Act; it does not apply to the acquisition provisions.

This amendment was enacted in apparent response to a well-publicized case in California in which an illegal immigrant was provided with a sizeable relocation payment. Review of this case by lawmakers led to the discovery that the Welfare Reform Act of 1996 (whose purpose was to deny government benefits to illegal aliens) did not prohibit provision of benefits under the Uniform Act.

Notice of Proposed Rulemaking
In compliance with its duty as the lead agency, ORES with the help of the FHWA Office of Chief Counsel prepared a draft regulation to implement the new law. On June 12, 1998, a Notice of Proposed Rulemaking (NPRM) on this matter appeared in the Federal Register. There is a statutory deadline of Nov. 21, 1998, for issuance of the "Final Rule" on this legislation. To meet this deadline, FHWA actively solicited comments on this issue from all agencies that are subject to the provisions of the Uniform Act. The deadline for those comments was Aug. 11.

Conclusion
The role of the lead agency is a major component of ORES's mission. This role extends the oversight responsibility of ORES beyond FHWA's traditional partners, including the state departments of transportation. ORES works with state DOTs to reach counties, cities, nonprofit organizations, and developers and other private individuals to ensure that all affected persons are treated fairly and equitably by federal agencies and their state and local counterparts.

For more information regarding the Uniform Act or related issues (including technical assistance), see the ORES portion of the FHWA Web site (www.fhwa.dot.gov) or contact the FHWA's Office of Real Estate Services, Room 3221, 400 7th Street SW, Washington, DC 20590.

Mike Jones is a realty specialist in FHWA's Office of Real Estate Services (ORES). He is a member of the ORES Real Property Appraisal Team, and he is a certified general real estate appraiser in Maryland. Jones has a bachelor's degree from Towson University.

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