Many projects can be built within the City’s existing right-of-way. However, at times it may be necessary to acquire the right of way from private property owners for the construction of a project. The City is responsible for acquiring the necessary right of way by all applicable federal and state laws and regulations for the construction and maintenance of proposed facilities. For Capital Improvement Projects, right-of-way acquisition services are provided by the City of Cedar Rapids Public Works Department, Real Estate Division.
Types of Right of Way Acquired
The City acquires not only right of way in fee simple, but also permanent easements, temporary easements, and any other agreements required for entering onto or use of land or property rights for construction and maintenance activities.
A fee simple acquisition is when a parcel of land is sold from one party to another. It is a transaction between a private property owner and the City in which the property owners’ rights to the property are acquired and terminated. Full ownership of the property, including all rights to its use, is transferred to the City.
Easements are interests in real property that permit the use – not ownership – of land. Easements are rights to perform specific acts on land. They may be temporary or permanent.
A permanent easement is an easement that grants the rights to a specific part of a private property owner’s land for a specific purpose forever. A permanent easement may be acquired for vehicular ingress and egress, installation of utilities, drainage, etc. The decision to acquire right of way by permanent easement vs. fee simple should be made after discussion with the Project Manager.
A temporary easement is an easement that grants the rights to a specific part of a private property owner’s land for a specific purpose for a limited time – generally during the construction of a project. The term of the temporary easement is in yearly increments and is based on the amount of time anticipated to complete the project. Consideration should be given to the need for utility relocations before the start of construction that may require temporary easements. A temporary easement may be acquired for sidewalk and/or retaining wall construction, driveway construction, tree removal, grading, and other activities. Care should be taken in laying out the temporary easements to provide enough room for the construction activities and yet cause the least amount of damage to the property.
Determine Land Ownership
The first step in the right-of-way design process is that of title determination. This should be done by the Designer as early in the process as possible. Title search consists of a search through county records to determine the correct title ownership and the description of all properties which will be affected by the proposed project. The Iowa Department of Transportation Right of Way Design Manual contains helpful information regarding title search sources and county records.
Refer to document: IOWA DEPARTMENT OF TRANSPORTATION RIGHT OF WAY DESIGN MANUAL
Some properties within the project area may have pre-existing agreements, such as petition and assessment agreements, easements, and other agreements for land use. It is important to be aware of existing agreements, to avoid acquiring land the City may already have an established easement.
Refer to document: SOP – FINDING PLANS AND RECORD DOCUMENTS
Plat and Exhibit Preparation
An acquisition plat, a permanent easement plat or exhibit, and/or a temporary easement exhibit shall be provided by the Designer for each acquisition that is required. The main difference between a plat and an exhibit is that a plat requires the certification of a licensed land surveyor. These documents shall also be accompanied by a Parcel Impact Detail (PID).
Refer to document: SOP – PREPARATION OF ACQUISITION PLATS AND EXHIBITS
The first draft of acquisition plats and exhibits is typically submitted at the Intermediate Plans stage of design.
Before completing the intermediate plan review, the Project Manager, Consultant and others deemed necessary, will conduct a walk-through to assess the quality of the design completed to date. Issues such as property owner concerns; tree removals; coordination with utilities, railroad, and other agencies; constructability; and maintenance aspects of the facilities are considered while making this review. It is often beneficial for Real Estate staff to attend this meeting, as they can provide input and provide solutions to problems encountered during the review. The following items should be checked during the field review:
- Proposed permanent and temporary easement lines to determine if adjustments can and should be made to reduce excessive property impacts
- Drainage issues/problems
- Access during construction
- Impacts on private property such as trees, landscaping, fences, mailboxes, outdoor retail spaces, seasonal uses, etc.
Project Plans, Plats, and Exhibits Submittal
Once all of the acquisition plats and exhibits have been prepared by the Designer, thoroughly reviewed by the Project Manager, and revisions incorporated (as needed), they shall be submitted to the Real Estate Manager for assignment to an Acquisition Agent.
Refer to document: SOP – SUBMITTAL OF PLANS, PLATS, AND EXHIBITS
The plans are typically submitted at the Intermediate Plans stage. Once submitted to the real estate division, there should not be any major changes to the plans. If major changes do occur, especially those that significantly change the impacts on the property, a revised set of plans or revised plan sheets should be provided to the acquisition agent along with a summary of the changes.
The plans shall include H sheets that contain plan views of any right of way required for the project. The H sheets are intended to show the proposed right of way in a manner that will allow the user to more easily see and comprehend the area of acquisition and the impacts associated with the specific property. These sheets shall include station and offset callouts for the acquisitions, property owner names, and parcel numbers.
Acquisition Agent Activities
After the Project Manager delivers a completed work order to the Real Estate Manager, the Real Estate Manager assigns the project to an Acquisition Agent. The following is a brief overview of the process followed by the Acquisition Agent:
- Review documents
- Send a Notice of Intent – a formal written notice that a project is coming and the real estate group will be reaching out for an acquisition
- Valuation of acquisition – determine if the property should be valued by an appraisal waiver or be appraised
- Negotiate acquisitions and obtain required signatures – If an appraisal was not performed, negotiations can begin at any time. If an appraisal was performed, the appraisal must be mailed to the property owner along with a Statement of Property Owner Rights and 10 days must elapse before negotiations can begin.
- Prepare transaction for City Council approval
- Submit payments to the property owner - The City does not have possession of the land until the property owners have been paid, and in the case of condemnation; the check is deposited with the Linn County Sheriff
One of the most significant challenges in acquiring the right of way is that the City is dependent on factors outside of the City’s influence. Delays may be encountered by property owners, title companies, mortgage companies, and the court system, just to mention a few. The acquisition staff typically manages multiple right-of-way projects at any given time and therefore, time management becomes even more challenging. The only reasonable answer to these time management problems is to provide enough lead time for project success, rather than be set up for project failure.
Typically it takes a minimum of 80 days of preparation (title, appraisals, deed approval, file prep, etc.) and 230 days to acquire (property meetings, condemnation, bank and judgment releases, and City Council approval). While some projects may be acquired quicker, the Project Manager should automatically plan for 310 days and add additional days if the project requires public agricultural hearings, condemnation, and/or relocation.
PUBLIC AGRICULTURAL HEARINGS
As required by the Iowa Code Section 6B.2A, the City shall provide written notice of a public hearing to each property owner and contract purchaser of a record of agricultural land that may be the subject of condemnation. Condemnation proceedings (negotiations) shall not begin unless good faith negotiations are made, including the mailing and publication of notices as required in the code section for the property owner and any contract purchaser of record of the property subject to condemnation. This adds 60 days to the project timeline.
If negotiations have reached an impasse, the Acquisition Agent shall consult with the Real Estate Services Manager for approval to coordinate mediation and/or eminent domain activity. If the property owner declines mediation or is non-responsive, the Acquisition Agent shall begin coordinating the timeline and start the condemnation process with the Linn County Sherriff. This adds 120 days to the project timeline.
TOTAL ACQUISITION WITH RELOCATION
Some projects require the City to acquire the entire parcel and a total acquisition could trigger relocation benefits. It is important to recognize the potential for a total acquisition with relocation during the initial scoping of the project. Residential, businesses, tenants, farms, non-profit organizations, and others could qualify for relocation benefits. After the Relocation Agent has confirmed the displacement qualifies for relocation benefits, an additional 12-18 months must be added to the project schedule. The City is required to follow the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended. It is important to scope the relocation(s) and the cost associated with relocation.
Modifications Requested by Acquisition
The Acquisition Agent understands the design that is provided is the best and preferred design; however, there are times property owners may ask for a design modification. The agent will document the request and provide that to the Project Manager to see if the design can be modified. During negotiations, the agent is capable of rejecting unreasonable requests; however, the agent will never change the design in the field without consulting the Project Manager/Designer. Any special requests or accommodations will be approved by the Project Manager, drafted as special clauses into the purchase agreement, and included in the bid documents. A copy of the purchase agreement with the negotiated conditions should be provided to the Designer to ensure the agreed terms are included in the construction documents.
Staking for Acquisitions
The Acquisition Agent is capable of measuring simple strip takings in the field with property owners. On complex, large acquisitions affecting significant landscaping, the agent, property owner, and appraiser may request the proposed right of way and easements be staked. If there is a significant change in grade, the grading limits may need to be staked as well. If the project is designed in-house, the on-call surveyor shall be utilized to perform this task. If the project is designed by a Consultant, this task shall be included in the PSA.
If the City is utilizing eminent domain to acquire the necessary right of way and easements, the purposed takings must be staked no more than 24 hours in advance of the hearing. If the project is designed in-house, the on-call surveyor shall be utilized to perform this task. If the project is designed by a Consultant, this task shall be added to the PSA as an amendment. It is the Designer’s responsibility to confirm the morning of the hearing that it is still staked, if they have been removed they need to re-stake it before the Linn County Compensation Commissioners conduct their site visit during the hearing.
Pre-Construction Meeting Parcel Agreements Form
The Acquisition Agent will prepare a Pre-Construction Meeting Parcel Agreements form, which contains contact information for each parcel along with important information for the contractor or their assignees. This form includes any special request by the property owners and provisions included in the executed purchase agreement.
The Acquisition Agent will review specific property owners’ information and requests at the pre-construction meeting with all of the principals involved in the project. The Acquisition Agent will also provide information that may be helpful during construction activities (potential challenges, coordination, etc.).