The "Right-of-Way Process” refers to the procedural framework for acquiring a temporary or perpetual legal right to use land owned by another party for a specific purpose, typically for the construction, maintenance, or improvement of infrastructure projects, such as roads, pipelines, utilities, or other facilities. It requires the careful balance between stakeholder interests in public or private infrastructure development with the protection of property owners' rights. This guide will dissect the process into distinct, practical steps, offering insights and tips along the way.
Project Planning
Planning is the foundation of the right-of-way process. A detailed plan requires a thorough understanding of project objectives and constraints. Project planners must define the project scope, route or location, and construction method while consideration stakeholder needs, topographic data, land use, planning and zoning, environmental and cultural factors, property ownership, existing infrastructure, regulatory requirements, risk and hazard assessments, and much more.
Documentation
Essential to project organization are compliance, clarity, and transparency. Proper documentation makes this possible. Documents used in the right of way process include ownership and encumbrance reports, surveys, appraisals, environmental impact assessments, public notices, permits, public hearing records, communication logs, engineering designs, construction plans, maps, insurance documents, financial documents, utility clearances, memorandums, and contracts such as deeds, and access, easement, option, purchase, vendor agreements, and much more. Publicly recording fully executed agreements related to property conveyances in the county where the land is located is a necessary practice that memorializes terms and protects property rights. Data integrity is paramount and is typically stored, accessed, and protected via organizational information systems.
Community Outreach and Engagement
Infrastructure projects have an impact not only on the landowners along the right of way, but on the entire community. Negative public perception of your project, or worse, vocal public opposition, can derail project approvals. Inversely, public engagement in the process can provide great benefit.
Holding public meetings, such as appearing before local government boards or holding public information sessions, allows developers to share project details, answer questions, and gather valuable feedback. This in turn gives them the ability to correct misinformation, address concerns, make critical adjustments and develop strategies to avoid roadblocks in the process. Direct collaborating with community leaders and influencers can enhance these outreach efforts. Effective outreach fosters a sense of partnership, where the community is not merely a recipient of information but an active participant in the project's evolution.
Appraisal and Valuation
Property owners are entitled to just compensation for the use of their land. The fundamental principle of fairness lies at the core of this step. Appraisal is not merely about assigning a monetary value to a piece of land; it's a meticulous process that considers many factors to arrive at a just and equitable compensation for property owners. This step becomes the bridge between the need for the project and the rights of property owners. Engaging with certified, local appraisers and involving property owners in the process ensures a transparent and fair valuation.
Negotiation
Negotiation is a dialogue that seeks to find common ground between project requirements and property owner expectations. Effective negotiation is as much about the people involved as it is about the terms, and landowners want to do business with someone they trust. It’s almost impossible to establish a relationship of trust until you sit down with a person, eye to eye, and that’s why right of way deals often happen at the kitchen table. Face-to-face negotiation fosters collaboration, enables immediate feedback regarding concerns, and allows for the building of personal connections. It demands clear communication, active listening, and empathy, while also requiring analytical skills, strategic thinking, and the ability to adapt. Negotiators must balance assertiveness with patience, uphold ethical standards, and persistently seek creative and mutually beneficial solutions. The goal is to strike a balance that recognizes the property owner's investment while facilitating the project's development.
Voluntary Agreements
Whenever possible, seek voluntary agreements with property owners. Voluntary agreements streamline the process, eliminating the need for legal action and potential delays, but the benefits of voluntary agreements extend well beyond cost and time factors. Public perception and project approvals can be heavily affected by successfully obtaining voluntary agreements as opposed to resorting to alternatives. Though obtaining a voluntary agreement may require the offeror to go above and beyond appraised value in their offers, the relatively modest extra cost can return greater intangible value for the project.
Eminent Domain
In cases where voluntary agreements are not possible, such as circumstances where the landowner (or their heir) is unavailable or completely unwilling to engage in negotiation, legal procedures may become necessary. This may involve filing a condemnation action, in circumstances where such action is legally permitted, to acquire the right-of-way through eminent domain. The type of projects that have the right to exercise eminent domain can vary by jurisdiction and the specific laws governing land acquisition. It is essential to follow legal procedures meticulously. Engage qualified legal experts to ensure compliance with laws and regulations. Keep lines of communication open with property owners throughout the process to minimize contention.
Monitoring Compliance
The right-of-way process extends beyond obtaining legal land rights. Once a land use agreement is in place, the terms of that agreement must be honored. These use terms usually revolve around the site analysis, construction and closeout phase, and commonly include things like: when and how land can be used, providing notice when you will be on site, specific access instructions (such as the opening and closing cattle gates), restoration of land after use, etc. Monitoring compliance includes ensuring adherence to and these unique agreement terms with property owners. Effective communication with stakeholders, timely issue resolution, continuous engagement, proactive risk management, and documentation of construction activities, are vital aspects of this phase.
Conclusion
Navigating the right-of-way acquisition process involves careful planning, effective communication, and a commitment to fair and transparent practices. By breaking down the process into distinct, practical steps and considering the needs and concerns of all stakeholders, infrastructure projects can move forward with minimal disruptions. Successful right-of-way acquisition is not only a legal requirement but also a crucial component of building positive relationships within communities and fostering sustainable development.
By: Jessica Timmons, PMP, SR/WA, TurnKey Logistics, LLC
February 6, 2024
Note: TurnKey is not a law firm and the considerations listed in this article are not meant as legal advice. We strongly recommend consulting with a legal professional if you have questions about your legal rights in the right-of-way process.