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Right of Way Acquisition

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Project Flowchart for this Article

09 HKP Time Management - Final Design Phase v2

1. Right of Way Plans


ROW plans should be approximately 80 percent complete prior to the final joint inspection. At this point they should include all ROW and utility information (including relocations). Proposed ROW or easements must be adequate to support features and activities such as side slopes, drainage structures, signs, utilities, waste sites, staging areas, and maintenance of traffic. ROW plans are compiled after the Final Joint Inspection meeting(s). The PM submits ROW plans to the Director of the Division of Right of Way and Utilities via the District Right of Way Supervisor. See the Highway Design Guidance Manual (HD-1302) for detailed instructions on developing ROW plans and related processes.

Include the project location, description, and identification features on a layout sheet (the title or cover sheet for the ROW plan set). The location map must be constructed so users can easily locate the project. The layout sheet is signed by the PM and State Highway Engineer. For projects on the NHS, the layout sheet must note what type of access control has been proposed. See the Highway Design Guidance Manual (HD-1100) for information on different types of access control. The following items are included with the ROW plan submittal: deed descriptions and source deeds of the property being acquired, ROW plans, item number, description, program number, county, and route.

When KYTC retains a ROW consultant, the district office includes a full set of ROW plans in advertisements for consultant services. Once a ROW consultant is selected, the District Office supplies to them a set of plans for parcels included in the contract.

Red Flag

Excess property is not identified when ROW plans are submitted. ROW plans are revised to reflect excess parcels only after the district Right of Way Supervisor determines that an excess parcel has been identified and will be acquired. Descriptions of excess property are provided upon request. Procedures for handling excess property are detailed in the Right of Way Guidance Manual (ROW 805-4). 

2. Right of Way Funding Authorization

Milestone with Federal Approval

ROW funding authorization requests include the following:

    • Plans,
    • ROW cost estimates,
    • Project agreement (prepared by the Division of Program Management and required by 23 CFR Part 630, Subpart A,), and 
    • Timeframes for completing ROW work.

The Division of Program Management submits to the Division of Right of Way and Utilities a completed Form TC 10‐1 (Project Authorization) signed by the KYTC Secretary. Form TC 10-1 authorizes funding and describes the project’s limits, conditions, and related responsibilities. For Federal-aid projects, an FHWA Letter Of Authorization (PR-1) is also required. Funding may be applied to all activities or dedicated to preliminary work.

 Side Note

If project changes arise (e.g., additional funding needs), supplementary TC-10 forms are used to address them.

3. Right of Way Official Order, Notice to Proceed, Notice of Acquisition


Once the Director of the Division of Right of Way and Utilities receives 1) a TC 10-1 form, 2) PR-1 form (if applicable), and 3) approved ROW plans, they request an Official Order. An Official Order authorizes ROW acquisition using eminent domain procedures permissible under Kentucky law.

After the Official Order is signed by the Office of Legal Services, the State Highway Engineer, and KYTC Secretary, the Division of Accounts numbers and returns the Official Order to the Division of Right of Way and Utilities.

Once the Division of Right of Way and Utilities receives project funding, the Acquisition Branch creates a project file that contains individual files for each parcel. Parcel files include hard copies or electronic copies of all relevant documents, including official orders.

Red Flag

Funding authorization for ROW does not constitute authorization to initiate all ROW work activities (as in the case of funding authorization for Planning or Design phase activities). 

4. Right of Way Scoping Meeting

If KYTC plans to retain a consultant for ROW acquisition, District Office staff prepare a request for consultant services and forward it to the Central Office Acquisition Branch. Once a prequalified consultant is approved, the consultant coordinates with the Division of Right of Way and Utilities to develop a project report and set up a Scoping Meeting.

At a Scoping Meeting, District staff describe how the project is to progress and set recommended time frames for completing each task. The following consultant personnel should attend the Scoping Meeting:

    • ROW Project Manager,
    • Appraiser,
    • Review Appraiser, and
    • All Negotiators and Relocation Agents.

Attendees from the KYTC District Office should include:

    • ROW Supervisor,
    • Property Management Agent,
    • Relocation Agent,
    • Utility Agent,
    • Project Development PM,
    • PDM,
    • DEC, and
    • Design Consultant (if needed).

For a more detailed list of Scoping Meeting requirements, see Scoping Meeting Guidelines on the KYTC Division of Right of Way and Utilities website.

5. Grave Relocation (If Required)

Despite efforts to avoid cemeteries, KYTC projects may sometimes impact graves or cemeteries. If project impacts to a cemetery require the relocation of one or more graves, the PM coordinates with staff in the Divisions of Right of Way and Utilities and Environmental Analysis to complete the process. These staff work together to ensure KYTC complies with all applicable laws, including the Native American Graves Protection and Repatriation Act (NAGPRA) and the National Historic Preservation Act (NHPA). The PM may also need to contract for the use of Ground Penetrating Radar (GPR) to identify unmarked graves.

The Division of Environmental Analysis assesses all affected cemeteries for historical significance (Section 4(f) determination) and the presence of Native American graves. The District Right of Way Supervisor sends to the DEC the following information along with a request for assessment:

    • Number of cemeteries within the ROW limits
    • Location of each cemetery impacted by the project
    • Number of graves affected in each cemetery
    • Descriptions of each cemetery and the impacts they will incur from the project
    • Plat of each disinterment cemetery
    • Disinterment cemeteries are those impacted by the project and from which human remains will be
    • disinterred
    • The property owner, the cemetery owner, and their relationships to those interred

Cemeteries that contain interments that are at least 50 years old must be assessed for historic potential. Division of Environmental Analysis staff or prequalified consultants complete the National Register of Historic Places (NRHP) assessment of cemeteries, usually during the Phase I archaeological intensive survey. Relocating a cemetery that is potentially eligible for the NRHP must be completed through archaeological excavation. In accordance with the Right of Way Guidance Manual, the Division of Environmental Analysis SME works with the District Right of Way Relocation Agent to notify next of kin. Archaeological excavation of the cemetery must occur only after the Division of Environmental Analysis SME obtains a permit from the Office of Vital Statistics (Cabinet of Health and Family Services, Department for Public Health).

If the historical assessment demonstrates a cemetery is not eligible for the NRHP, the Division of Environmental Analysis issues a clearance memorandum to proceed with its relocation. The Division may contract with an archaeologist to relocate remains. Staff also have the option of authorizing the Division of Right of Way and Utilities to relocate remains. When Division of Right of Way and Utilities personnel are authorized to relocate remains (and either right of entry has been granted or the parcel has been acquired), an experienced Relocation Agent is assigned to coordinate the effort with a funeral director licensed by the Commonwealth of Kentucky.

The Relocation Agent must thoroughly understand all relevant policies and procedures. They are to ensure contractors comply with state, county, and local health laws (e.g., obtaining the permit from the Office of Vital Statistics) as well as the contract’s terms and conditions. The Relocation Agent also develops cost estimates for relocating graves. When physically possible, the District relocates remains to empty plots within the disinterment cemetery. If the remainder of the disinterment cemetery is landlocked or too small, remains are relocated to the closest perpetually maintained public cemetery (i.e., a re-interment cemetery) unless the next of kin prefers another location. Every reasonable request of the next of kin is honored.

Red Flag

When remains are found and the person’s identity is unknown, or the person’s next of kin cannot be found, the Grave Relocation Agent places a public notice in all local newspapers that advertises KYTC’s intent to relocate graves. The notice is published once a week for 60 days. If next of kin do not come forward during that period, the Grave Relocation Agent submits an affidavit and resolution to the county fiscal court requesting authorization to relocate the graves. Note: Obtaining this authorization does not constitute right of entry.

If a cemetery is identified after acceptance of the Phase I archaeological intensive survey, an assessment of the cemetery must be completed as a late discovery. Late discovery occurs when previously unidentified historic properties or unanticipated effects are identified following KYTC’s completion of the Section 106 review. Late discovery of evidence of human remains requires the immediate stoppage of all project work in the vicinity of the discovery area. Project work cannot move forward until an assessment of the remains is completed.

6. Complete Appraisals

If staff appraisers are available, the District Right of Way Supervisor assigns one or more to appraise project parcels. Appraisal standards throughout the state are uniform, and all property owners are entitled to just compensation for their property, which is calculated in the following manner:

Compensation = Fair Market Value of the Entire Property Prior to Acquisition – Fair Market Value of Property Remaining Following Acquisition 

Minor Acquisition Review (MAR) = Valuation must be based on a review of available data and is prepared by a Right of Way staff member knowledgeable about the local real estate market. A property does not need to be appraised if it meets one of two conditions: 

  • Its anticipated value is less than $10,000, or 
  • It has a value of between $10,000 and $25,000 and the property owner grants an appraisal waiver. 

7. Update Titles

KYTC Division of Highway Design staff or the design consultant provides a copy of the recorded source deed or deeds for each parcel and indicates title information on the plans. 

Before ROW plans are formally submitted by the Division of Highway Design, the Right of Way Supervisor asks the Acquisition Branch Manager to: 1) develop title reports in consultation with the district attorney, or 2) requests the Office of Legal Services assign an attorney to complete this work. Title sources are obtained by contacting property owners and/or through a search of the county court clerk’s records. 

Red Flag

Uneconomic remnants are properties that have little or no utility or value to the owner. While KYTC may offer to purchase an uneconomic remnant, the property owner may convey or retain the remnant. An uneconomic remnant should be acquired in fee simple and described separately in the deed of conveyance. Negotiators never make an offer to acquire uneconomic remnant property with onsite contamination. If a condemnation action is necessary to acquire needed ROW, the uneconomic remnant must be excluded from the suit.

8. Schedule Property Owner Meetings

Once acquisition has been authorized, the negotiator schedules a one-on-one meeting with the property owner. After this meeting has concluded, the negotiator documents the meeting’s date, time, place, and all attendees. They also prepare a formal record of all salient items discussed, property owner improvements, questions asked, and answers given. If the negotiator is unable to answer a question during the meeting, they should include the answer in the record of a subsequent meeting. 

Property owner information meetings may be held on medium- and large-scale projects. They afford property owners the opportunity to learn about how ROW acquisition will impact their property (rather than finding out at the initial offer to purchase meeting). These meetings, combined with addressing unexpected issues at an earlier date, save time during negotiations. Inviting staff from the Division of Right of Way and Utilities and the Division of Highway Design to the meeting makes them available to answer specific questions about the acquisition. To facilitate explanations of the proposed acquisition to a property owner Right of Way staff should furnish them with a copy of the ROW plans and review their contents.

Negotiators prioritize parcels: 1) where relocation assistance is needed, 2) that involve minor heirs and title problems, 3) that face inevitable condemnation, 4) have out-of-state resident property owners, or 5) have outstanding environmental issues (e.g., deferred archaeology.). All of these issues may draw out the acquisition process. When relocation assistance is needed, negotiators coordinate with the Relocation Agent as soon as possible so the displaced person is located expediently.

9. Acquisition Stage Relocation Report (ASRR)

When a Relocation Agent observes personal property in the acquisition area, they designate it as a relocation parcel. Following the authorization of acquisition, but prior to the start of ROW activities, District relocation staff or the contractor submits an ASRR, including estimates for the time needed for the orderly relocation of residents and businesses. 

The District Right of Way Supervisor submits the ASRR to the Relocation Branch Manager. The report identifies relocation impacts documented in interviews with people who will be displaced. The ASRR must contain the following information:

    • The total number of residential, business, farm, nonprofit organization, sign, and miscellaneous move displacements; 
    • Potential relocation problems (e.g., inadequate supply of comparable replacement housing or nonresidential replacement sites; the need for last resort housing funds; displaced people who are low income, elderly, or handicapped); 
    • Description of the center line, property lines, and topographical features; 
    • The number of owners and tenants, including property owner names and source of title; 
    • Parcel numbers; and 
    • Estimated time required to carry out a relocation program.

Until the Relocation Agent or consultant personally interviews the property owner, inspects the parcel, or confirms otherwise, KYTC presumes a displacement will occur on any parcel where an improvement is acquired. 

Red Flag

Sometimes it is not apparent that acquisition will result in displacement, especially with partial acquisitions. Coordinating with the PDT, the District Relocation Agent must identify the full range of actions involved in a partial acquisition that may necessitate relocation (e.g., impacting an aging septic system, but not the residence itself.)

Consider the impact on occupants of real property who may be subject to a partial acquisition. The decision to displace can be made when preparing the ASRR or when additional information becomes available.

When a project requires a permanent easement on a railroad’s ROW, railroad sheets (including all survey information, proposed railroad deeds, and cost appraisals) and the project’s ROW plans must be submitted to the Railroad Coordinator.

10. Appraisal Review & Central Office Approval

District Right of Way and Utilities staff and the PM work jointly to ensure parcel boundaries are consistent with accepted appraisal procedures and that all property interests have been identified and considered. Review of the appraisal should be completed before starting negotiations for property acquisition. The review must closely attend to accuracy, documentation, and final value conclusions. Final approval for all appraisals is given by the Appraisal Branch Manager, the only person that determines Just Compensation for KYTC.

11. Right of Way Acquisition

All operations and functions within the ROW program must comply with the regulations and procedures outlined in the following:

    • Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended;
    • 23 CFR Part 710;
    • Uniform Standards of Professional Appraisal Practice (KRS 56.610);
    • KRS 177.021;
    • 600 KAR 3:010; and,
    • KYTC Right of Way Guidance Manual.

Subagents and local public agencies (LPAs) must also comply with these regulations and procedures when acquiring ROW.

As early as possible — but not before the Notice to Proceed is received from Central Office — the District Right of Way Supervisor prepares the Notice of Proposed Acquisition Letter that will be sent to each owner of real property that the Cabinet wants to acquire. The letter advises owners of the legal protections they are entitled to, pursuant to 49 CFR.

Red Flag

Under special circumstances and following guidance provided by Central Office Right of Way staff, an advanced protective buying acquisition may be used to either: 

• Achieve cost savings by preventing excess ROW acquisition expenses due to either imminent development or future increased costs on a preferred project location. 

• Facilitate hardship acquisition (due to health, safety, or financial reasons). A property owner must provide a written submission that supports their claims of health, safety, or financial reasons creating an undue hardship (e.g., an inability to sell the property at its fair market value within a reasonable period of time).

12. Implement Relocation Assistance (If Required)

District Right of Way Supervisors are responsible for the Relocation Assistance Program in their district. Central Office Right of Way Relocation Specialists assist them. A District Relocation Assistance Agent has comprehensive knowledge of the parcel owner, displaced person, relocation type (residential, business, farm, nonprofit, billboard, or miscellaneous), and the impact of acquisition on the displaced person. In all cases, the Relocation Assistance Agent attempts to personally contact all displaced people before coordinating with the buyer agent to present simultaneous fair market value (FMV) and relocation offers. A relocation offer or notice to a tenant is made within 7 days of the FMV offer.

KYTC pays for estimates prepared by movers, sign companies, health departments (for site evaluations), fencing, and other items acquired or personal property that needs to be moved.

When acquisition is going to displace a tenant, the Relocation Agent contacts both the property owner and the tenant to verify terms of the rental agreement or lease and explain the benefits and services available to each party.

13. Offer Accepted

Once the Cabinet’s offer has been accepted and KYTC receives the signed conveyance agreement from the property owner, the negotiator submits the payment request to the Central Office. 

14. Process Right of Way Payment

If possible, all liens or encumbrances against acquired property rights are released prior to check delivery. Otherwise they are released at check delivery. Because most releases require a portion or all of the money, they generally are obtained at check delivery. KYTC has two options for getting a check to a property owner: 1) it can be sent by mail to the property owner, or 2) it can be delivered in person by someone other than the parcel’s appraiser or negotiator. After the check has been delivered, the executed deed is taken to the county clerk’s office and placed on record. The District returns the recorded deed to the Central Office for permanent filing. A copy is retained in the District’s parcel file.

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