236.13 Designing Right of Way Plans

Forms

• Certification Document
• Letter of Certification for Right of Way Plans Approval
• Right of Way Plan Review Check List
• Sample Letter for Condemnation
• Sample Letter for Condemnation (Amended Plans)

Figures

• Access Control and Layout of Diamond Interchanges
• Form T746
• Form T747
• Form T748

Additional Information

• Functional Classification

Right of way plans are developed along with the development of the detail plans. They occur after the preliminary plan for an improvement is approved. Right of way plans define and dimension areas necessary to construct and maintain the main roadway and necessary outer roadways, entrances and crossroads. The right of way limits will include areas necessary for utility adjustments and maintenance activities. Right of way dimensions are sufficiently detailed to write deeds to describe the required right of way and easement limits. Final right-of-way plans and plan approval cannot take place until NEPA approval, however, FHWA may allow additional activities that do not constitute final design to be advanced if the DA determines that such activities do not materially affect the consideration of alternatives in the NEPA review process and/or cause adverse environmental impacts. The PM shall work with the DLE and FHWA to consider this process on a case-by-case basis.

The minimum width of right of way established for each project is that necessary to accommodate construction and provide proper maintenance of the roadway without an undue number of jogs in the right of way line. The established right of way width must be sufficient to accommodate all roadway cross-section elements and required appurtenances necessary for an adequate facility in the design year.

Normally, the area for the placement of utilities is six feet wide, located parallel to and immediately inside the right of way line. Since utilities are typically relocated prior to roadway construction, the right of way width needs to ensure the new location is beyond the slope limits of the improvement.

It is permissible to utilize easements for cut and fill slopes. Many factors are to be considered when deciding how to provide space for the facility, such as the cost of permanent right of way verses easements, project goals and scope, proper maintenance of the facility and adjacent land use.

It may be practical in certain cases for right of way to be purchased at the time of the initial project to accommodate future improvements. Typically, this occurs in developing areas that have both high right of way costs and identified needs for improvement in the near future.

When establishing minimum right of way widths, maintenance items to consider include

• Signing guidelines suggest fixed signs be 6 ft. to 12 ft. from the edge of pavement.
• Currently, mowing tractors are either 6 ft. or 15 ft. wide.
• Roadside vegetation guidelines suggest mowing 30 ft. to 80 ft. beyond the edge of pavement, provided the slope is 1V:3H or flatter. This controls the brushy vegetation more effectively. If fence lines are not placed sufficiently far from the edge of pavement, the trees will eventually grow over the road, requiring expensive maintenance activities such as renting bucket trucks to trim limbs over the road.

236.13.1 Access Control

Functional classification Functional classification is the process by which streets and highways are grouped into classes, or systems, according to the character of service they are intended to provide. Basic to this process is the recognition that individual roads and streets do not serve travel independently in any major way. Rather, most travel involves movement through a network of roads. It becomes necessary then to determine how this travel can be channelized within the network in a logical and efficient manner. Functional classification defines the nature of this channelization process by defining the part that any particular road or street should play in serving the flow of trips through a highway network.

Additional detailed information is contained on FHWA’s website.

The control of access to a highway is one of the key elements in determining the safety of a highway improvement. It also serves to protect the investment in a highway. It can, however, be a major factor in how adjacent land will develop. Therefore, restricted access will only be acquired when it is consistent with the intended service to be provided by the highway. This service has been defined as its functional classification.

Expectations of the road user will be different on each classification of highway. While higher traffic volumes are associated with higher classifications, traffic volumes are not to be the sole factor in establishing the route's intended purpose or the need for access control. It is better to determine the functional use for the improvement and implement the necessary access controls to protect that use.

Because driver expectations differ when approaching developed areas and because functional classifications often change in these same areas, guidelines for purchasing access controls are separated into rural and urban categories. Recommendations and justification for access control will be presented in the conceptual plan or the location study report. The report will address total roadway segments rather than individual improvement projects.

236.13.2 Rural Areas

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(includes urban areas with population less than 50,000)

236.13.2.1 Major Routes

These roadways, generally interstate and principal arterials, transport large volumes of interstate and intrastate traffic. They are intended to provide a high level of mobility for through traffic. They provide the safest design characteristics and are conducive to high operating speeds. Interstates and principal arterials designated as freeways are designed with fully controlled access right of way. Some principal arterials are constructed with controlled access right of way.

When staged construction is necessary, initial right of way may be acquired for future lanes, interchanges, and necessary outer roads. Typically, this occurs in developing areas that exhibit both high right of way costs and have identified needs for other stages of construction in the near future. Access points are to be provided only for public roads. Temporary entrances may be necessary if initial construction cost makes it more prudent to delay construction of outer roads. Traffic volumes in this case determine when full control becomes necessary. Deeds reflect the future control of access to driving lanes.

236.13.2.2 Minor Routes

These roadways link cities, towns, and other major traffic generators to major routes (usually the interstate and principal arterial system). As a general rule they are two lane roadways. They are designed to maintain higher overall speeds with little interference to the through movements. A large amount of rural development along these facilities would not normally be expected, so control of access is not normally acquired. Certain roadways in this classification with high traffic volumes may require expressway design criteria. If this is the case, urban criteria is to be used.

Major traffic generators developing along these roadways will have higher type entrances with acceleration, deceleration, and turn lanes where type and volumes of entering traffic dictate. Climbing lanes and turn lanes at major route intersections are also considered.

Roadway relocations near urban areas with populations under 50,000 are to be considered only when typical design criteria for improvement of the existing roadway would be severely compromised or unattainable because of the presence of existing development. When appropriate, relocations are designed with sufficient right of way width for future lane additions. Additional right of way width is also appropriate where development is likely to occur on the outskirts of these areas. Partial controlled access is acquired, as appropriate, at intersections.

Lower volume minor roadways are intended to provide suitable access to adjacent property. Normally, access control is not considered.

236.13.3 Urban

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(population areas of more than 50,000)

236.13.3.1 Major Routes

These routes are generally the interstates and principal arterials designated as freeways. Fully controlled access is obtained for all freeways. Access points are restricted to interchanges. Interchanges may be provided at other principal arterials, minor arterials and some collectors. Access on cross routes at interchange areas is to be consistent with their classification and in accordance with the guidelines for access near interchanges.

236.13.3.2 Minor Routes

For roadways on new location or in undeveloped areas, controlled access is to be acquired with access considered only at other state routes and major city streets. Spacing of these access points will be conducive to good traffic progression as signal installation becomes necessary.

When reconstructing roadways where development already exists, a higher level of access control may not be practical. In this case, consistency of access with adjacent roadway sections is maintained. When purchasing right of way for reconstruction, additional acquisition for future expansion may be appropriate.

On lower volume minor routes, partial controlled access is considered at major intersections.

236.13.4 Other Considerations

Where new controlled access right of way is obtained on one side of an existing route, controlled access rights are acquired on both sides of the roadway, unless it will be used as a service road either initially or as a part of the ultimate facility. In that case, it is not necessary to acquire access rights from the owner abutting the existing road.

On roadways that have not been designated for controlled access acquisition, control of access at intersections is still desirable. Partial access control is obtained by acquiring controlled access right of way at the intersections of all state routes and sideroads that intersect a state route with significant traffic. Consistency within a project and with adjacent roadway sections is considered when deciding on the level of control.

An entrance or entrances may be provided to each tract or property in an attempt to avoid landlocking a tract or property or to provide reasonable access to the roadway on controlled access highways until such time as outer roads are constructed. The number, width and location of such entrances are controlled based on existing land use. If access is to a dual lane facility, it shall be to the near lane only. Median crossovers will not normally be permitted for private or commercial entrances. Exceptions to this criteria must be justified and approved based on consideration of entering traffic, distance to nearest public road crossover, adequate spacing for weaving movements, signal progression and sight distance. Outer roadways may be constructed to provide access for properties adjacent to controlled access right of way. Outer roadways will be constructed to the nearest point of permitted access. Additional information can be found in the Access Management Guidelines.

236.13.5 Types of Right of Way

Right of way, as shown on the plans, is of the following types; normal, controlled access, fully controlled access, partial controlled access, or no right of access. The type of right of way is related to access control. Limits of this control are indicated on the plans and on the title sheet by proper legend. Where right of way with access control is to be acquired, an appropriate note relating to the type of access control is required on the title sheet. Legend and symbols for access control are available.

236.13.5.1 Normal Right of Way

Normal right of way permits entrances to a roadway as necessary to provide access to adjacent properties.

236.13.5.2 Controlled Access

Controlled access right of way limits the points of ingress and egress to the main roadway to specific locations, types, and dimensions indicated on the plans. It is imperative that all entrances and outer roadway limits be precisely shown and defined on the plans. The number of entrances to the main roadway is provided in accordance with the spacing guidance contained in the Access Management Guidelines. Access is not provided to a property if it has adequate access to other roads. Access from adjoining property to the roadway is as described in the deed (which is prepared from information shown on the right of way plans) and as provided during initial construction. Any revisions to this access require Commission approval and financial compensation. Within the boundaries of controlled access, the number of access breaks is restricted and cannot be increased. Trading of access points is permitted. Access control at diamond interchanges is established.

When a bridge or culvert 6 ft. or greater in height is constructed on a controlled access highway that severs a property, the owner will be allowed access under or through the structure if it is economically justified. However, the allowable uses of this access will be defined in the deed (e.g. livestock crossing). Plan design is not altered to accommodate owner needs unless justified by appraisal. The following note is placed on the plans for each appropriate structure:

"Access is allowed under the bridge (or through the culvert); however, no attachments may be made to the structure."

236.13.5.3 Break in Access

A break in access, consistent with the appropriate driveway widths (see Access Management Guidelines), will be provided for all driveways on controlled access right of way improvements. Driveway width and the approximate percent grade of the driveway must be shown on the plans. For projects that have existing controlled access right of way, access widths are only to be changed within the limits of the newly acquired controlled access right of way unless changing the widths is necessary to accommodate safety or operations.

The following entrance information is to be shown on the plans for all access breaks that will be constructed as a part of the project, or left in place as a part of the project within existing or new controlled access right of way.

• Type of Entrance (Private, Field, Commercial, etc.)
• Entrance Width (as measured on the new right of way line)
• Approximate Percent of Grade
• Type of Approach
• Center Stationing of Entrance (station at which the center of the entrance intersects with the new right of way line)

236.13.5.4 Fully Controlled Access

Access to the main roadway from a property adjoining the highway facility is only permitted at interchanges when fully controlled access is used. This access will require extensive outer road or service road systems. Access from an adjoining property to the outer roadway is as described in the deed (which is prepared from information shown on the right of way plans) and as provided by future permit. Direct access to the main roadway from adjoining property is not permitted. Access controls along the crossroad at interchanges or grade separations are the same as for controlled access.

236.13.5.5 Partial Controlled Access

Control of access at intersections is desirable for improvements on routes that have not been designated with controlled access right of way. Partial controlled access is obtained by controlling access at the intersections of all state routes and all sideroads that intersect a state route with significant traffic. The limits of access control are established to properly control traffic and protect the intersection from future entrance encroachment. These limits are established by using the corner clearance criteria (see Access Management Guidelines) appropriate for each roadway approach.

236.13.5.6 No Right of Access

The no right of access restriction is used adjacent to outer roadways where entrances are not allowed to the outer roadway or the crossroad. This restriction is usually used in the vicinity of interchanges. It may be used elsewhere where such a restriction to entrances is desirable or necessary. Access from adjoining properties to the roadway is not permitted in any matter during the present or in the future. Common applications for the no right of access restriction include:

• Sight distance corners at outer roadways intersections within the functional areas of interchanges.
• Prohibiting access between an outer roadway and the main roadway at locations where the adjacent property owners have access to the outer roadway.
• Protecting tee intersections where adding a fourth approach would be detrimental to safety and operations (e.g. outer roadways with inadequate separation from the main roadway).

“No Right of Access” is indicated by use of a symbol along the shoulder of the outer roadway. Examples of no right of access are available.

236.13.5.7 Partial Rights

Present federal regulations pertaining to the acquisition of right of way require the state to request permission from the FHWA to acquire anything less than all the rights in a property, where federal funds are involved in either right of way or construction costs. Since this permission can only be approved at the Washington office, it is necessary any request be made at the earliest stage of project development. When the district determines it will be to the state's advantage to acquire less than the complete surface and aerial rights for a property or for under or over a structure, a specific note for each exception is included in a letter of transmittal to the FHWA requesting approval of right of way plans. An estimate of the savings in right of way costs, prepared by the Right of Way Section, is attached to the transmittal letter. If this situation occurs after receiving approval of right of way plans, the district must submits a request to the Design Division, along with a revised plan sheet setting out the exception and including an estimate of right of way savings. Upon receipt of this information, the Design Division will submit a request to the FHWA for approval, and upon receipt of approval notify the district. It is expected this procedure will affect only a minimum number of projects involving interstate or high-type urban design. Right of way acquisitions reserving certain rights for the property owner are to be held to a minimum. Approval is requested only when substantial savings in right of way costs can be shown.

236.13.5.8 Permanent Easements

Permanent easement limits indicated on the plans outline the area required to construct and maintain features such as channel changes, inlet and outlet ditches, flooding or ponding areas, etc. Such easements are acquired with authority to re-enter after construction has been completed. Easements are acquired for the sole purpose shown on the plans.

236.13.5.9 Restrictive Easements

Restrictive easement limits indicated on the plans outline the area required to control unsightly areas such as junkyards from the sight of the traveling public by not permitting the use of these designated areas for business use. Easements are acquired for the sole purpose shown on the plans.

236.13.5.10 Urban Easements

The use of easements outside the normal right of way for a portion of a fill embankment is considered only when there is an obvious economic advantage to the department. This is usually confined to improvements located in urbanized areas where the cost of land is extremely expensive. Easements acquired for such purposes are permanent easements. This procedure is intended to be an exception to the normal practice of providing sufficient right of way for the entire roadway facility. Easements are acquired for the sole purpose shown on the plans.

Included in the conveyance is a provision that the easement is for construction and maintenance of the slope. The conveyance also includes a statement that upon completion of construction, the property owner will have use of the area with the stipulation that no alterations can be made to the fill slope within the easement area without a permit being obtained from the Commission's district engineer. Upon written request by the property owner, release of the permanent easement will be considered. Approval of the request by the commission is required.

This procedure is primarily intended for use in fill embankment areas and is not intended to change procedures currently in use for easements in cut sections. Cut slopes may be constructed on temporary easement where the acquisition of right of way is to be minimized.

236.13.5.11 Temporary Easements

Temporary easement limits indicated on the plans outline the area required to construct items such as approaches to the roadway or for temporary construction. Temporary easements are provided around all buildings located partly on the right of way for the removal of foundations, even if others will remove the building. Where buildings are cut at the right of way line, temporary easements are provided to a width necessary to prevent encroachment on the adjacent property. These easements are not written with authority to re-enter the property after construction is completed. All rights to temporary easements are returned to the property owner upon completion of the construction. Easements are acquired for the sole purpose shown on the plans.

236.13.6 Right of Way Widths

The width of the right of way for an improvement is the minimum necessary to build and maintain the facility. The designer will attempt to minimize the number of breaks in the right of way line. Right of way lines are established on straight lines rather than curved lines wherever possible. The width of the right of way must also consider the need to accommodate the placement of utilities and provide maintenance of the roadway. Right of way lines outline the areas actually required for construction and maintenance and do not follow along property lines. It may be necessary to purchase areas beyond the right of way limits as indicated on the plans because the property has been severed or it has become inaccessible to the roadway. These areas are not included within the right of way as shown on the plans unless the additional area is useful to the department. If such right of way is acquired, it is handled as an uneconomic remnant or as excess right of way; however, no such notations designating an additional area as an uneconomic remnant or as excess right of way are to be included on the right of way plans.

236.13.7 Plan Development

Right of way details are usually developed on construction plans. These details (see Right of Way Plan Review Check List) are developed on separate sheets only where they cannot be shown on the construction plans without crowding. For lengthy projects or projects that must be expedited to meet schedules, it is sometimes necessary to develop right of way plans for portions or sections of a total improvement. These plans will be complete to the extent necessary to inform each individual property owner of the effects the improvement will have on each owner's property. Sample plans show examples of right of way delineation and notations.

236.13.8 Plan Requirements

Right of way lines are indicated on the plans with a solid line noted as "R/W Line". Easements are indicated on the plans with dashed lines. Easements are identified on the plans as "Permanent Easement" or "Temporary Easement". A supplemental descriptive note is shown underneath the easement descriptions identifying the purpose for the easement, such as "Drainage" for inlet and outlet ditches, "Channel Change" for channel changes, "Sight Distance" for sight distance easements, "Borrow" for borrow easements, or "Slope" for slope easements. The plans include complete dimensions for all areas included in the right of way or easement limits. The plans show the limits of construction slope lines by a dashed line. The limits of construction are approximate. Land survey ties and bearings are also shown on the plans.

When right of way is acquired along only one side of an existing facility, it is necessary to re-station and dimension the existing right of way line to the new centerline stationing. Sufficient equations between the existing centerline and the new centerline are included on the right of way plans to allow for coordination of existing right of way deeds.

Title information for ownership is obtained from the district right of way manager after preliminary plan approval. Sufficient lead-time must be allowed to obtain this information. The plans will show the following information for each property:

1. name of the property owner
2. all land survey lines and property lines
3. the parcel number
4. the area of each type of right of way (controlled, normal access, etc.) to be acquired
5. the area of permanent easements
6. the area of temporary easements
7. the area of property remaining outside the right of way limits on each side (left and right, listed separately) of the roadway. The easement areas are to be included in the area of property remaining outside the right of way limits.

For those properties where only access rights will be acquired, the plans will show the following for each property:

1. name of the property owner
2. all land survey lines and property lines
3. the parcel number
4. a notation of, “Access Rights Only”
5. the area of property remaining outside the right of way limits on each side (left and right – listed separately) of the roadway.

Land survey ties and bearings are also shown on the plans. Bearings will be shown in degrees, minutes, and seconds. The associated distance will be in English units. The approximate grade of all entrances is also shown.

All areas are computed and shown on the plans in units of acres (to 0.01 ac.) or square feet (to 1.0 ft²) accuracy.

The first plan and profile sheet of the plans includes a note identifying the right of way limits for the project. This includes all easements. Projects with disconnected sections designated in the State Transportation Improvement Program will include a note for each section. An example is: "Right of way limits for this project extend from Sta. 200+00 to Sta. 300+00, a distance of 1.894 miles and from Sta. 450+00 to Sta. 575+00, a distance of 2.367 miles." The following note is also included on the first plan and profile sheet: "Any work indicated on the plans that extends beyond the project limits is considered incidental to and a part of the construction of this project."

If railroad property is involved, separate parcel numbers are assigned to operating railroad right of way and to non-operating railroad property owned by a railroad company. If the right of way line for a controlled access highway is the same as the right of way line of operating railroad right of way, it is necessary to acquire abutters' rights of direct access from properties abutting the opposite side of the railroad right of way. If the railroad has fee rights in their right of way, there is no need to acquire abutters' rights from the properties abutting the opposite side of the railroad right of way. This only becomes necessary when the railroad has an easement and the abutter opposite the railroad has an underlying interest in the railroad right of way. In either situation, abutters' rights are secured from the railroad. Such abutting properties are assigned a parcel number.

The right of way plans will include the following:

• New right of way lines
• New permanent easements
• New temporary easements
• New centerline
• Existing right of way lines
• Existing permanent easements
• Existing centerline
• Purposes of all existing and new easements
• Slope lines
• Construction limits
• Beginning and end of project in station numbers
• Land survey ties with book and page or document number
• Bearing and distance from the land survey tie to a specific station on the new centerline
• Equation station between the existing and new centerlines at the beginning and end of the project
• Bearings and curve data on the new centerline, and extending beyond the limits of the right of way acquisition at the beginning and end of the project
• Property lines
• Improvements (canopies, ponds, lagoons, houses, outdoor advertising signs, outbuildings, fencing, trees, etc.)
• Each improvement that is within, partially within or near the right of way, permanent easements and temporary easements will be designated with an “R”, “LIP”, “UIP”, or “DND”.
• Section lines
• Quarter section lines
• Quarter quarter section lines
• Quarter quarter notations within the appropriate quarter quarter sections
• Sections
• Townships
• Ranges
• Station and offset at each right of way break, all permanent easement points, and all temporary easement points
• Station and offset on the right of way line at the P.O.T., P.C., P.T., T.S., S.C., C.S., and S.T.
• North arrow on each plan sheet
• Match lines at the beginning and end of each plan sheet
• Type of entrance (Private, Field, Commercial, etc.) for both existing entrances that will be left in place and new entrances that will be constructed
• Entrance width (as measured on the right of way line) for both existing entrances that will be left in place and new entrances that will be constructed
• Approximate percent of grade for both existing entrances that will be left in place and new entrances that will be constructed
• Type of approach for both existing entrances that will be left in place and new entrances that will be constructed
• Center stationing of entrance (station at which the center of the entrance intersects with the new right of way line) for both existing entrances that will be left in place and new entrances that will be constructed
• Parcel information as previously referenced in this section
• Title sheet that depicts the construction limits, right of way limits and project limits

236.13.9 Location Survey Monuments

The plans indicate the location of survey monuments required to mark the right of way in a manner that defines the limits of right of way. Location survey monuments are placed at all points of change in types of right of way (terminal points). Location survey monuments are placed at all breaks in the right of way line and at all P.O.T.s, P.C.s, and P.T.s. Location survey monuments are also placed at each end of spiral transitions to and from curves. To simplify deed writing, the right of way lines through spiral transitions should be straight lines, and bearings and distances are shown on these lines. If it is necessary to break the right of way line within the spiral, bearings and distances are shown for each segment of the right of way line. Location survey monuments are located so adjacent markers are visible where practicable. Location survey monuments are not used to define areas purchased for constructing county road or city street connections where maintenance will be conveyed by quitclaim deed to others.

Location survey monuments or a temporary monument must be set by professional land surveyors (either private surveyors or MoDOT employees) prior to or at the time right of way is staked for condemnation. The professional land surveyor will develop a Location Survey Plan and permanent monuments are to be set prior to the recording of the location survey plan if they will not be moved or destroyed by construction activities within six months of their installation. Until the right of way acquisition is completed, semi-permanent monuments may be used. If the required permanent monuments will be disturbed by utility adjustment or construction activity, semi-permanent monuments can remain until 12 months after the location survey plan is recorded. In any event, permanent monuments must be installed within 12 months after the plan has been recorded. The private surveyor can obtain the location survey monuments from district surveying personnel. The appropriate symbol is used on the Location Survey Plan to identify the type of location survey monument to be set.

For those projects with preliminary plan approval after January 1, 2001, location survey monuments will be used to show the marking of the right of way. Additional information concerning criteria for the location of survey monuments is found in EPG 238.2.12, EPG 238.2.13, and EPG 238.2.14.

236.13.10 Request for Environmental Services

The district will submit a hard copy or e-mail an electronic copy of a Request for Environmental Services (RES) to each of the recipients listed on the form when right of way plans are submitted. Even though previous requests for environmental services have been submitted earlier in the project development process, specialists in the Design Division will need to assess the final layout of the right of way as indicated on the approved right of way plans for potential impact to environmental concerns.

236.13.11 Coordination with Local Agencies

When it is necessary to revise or adjust a local road or street, the right of way will be acquired in the name of the State. Local officials are contacted at the final preliminary plan stage to discuss the proposed changes to their system. After completion of construction, quitclaim deeds are prepared and forwarded to the local agency complete with plans showing the final configuration of the improvement.

236.13.12 Plan Submittal and Filing

A set of right of way plans consists of a title sheet, typical section sheet(s), completed plan sheet(s), and any special sheet(s) required to completely define and detail the right of way necessary (including easements) for the improvement, including the project’s outermost termini or right of way limits in stations. The District Engineer, as designated by the Chief Engineer (see Commission action of November 5,1993), or Assistant District Engineer (see Commission Policy - Execution of Documents Effective November 2, 2018) is responsible for approving the right of way plans. Approval of right of way plans is indicated by the District Engineer's signature and seal on the title sheet. The District Engineer's signature and seal are only required on the title sheet. When a consultant designs the plans, the title sheet is signed and sealed by a representative of the firm and the District Engineer. Right of way plans are only considered approved once the District Engineer signs and seals the title sheet.

Approved right of way plans are submitted to the Design Division by email that includes the letter of approval signed by the District Engineer. The email must contain the plans attached as Adobe Acrobat files (pdf.'s) or indicate the location of the electronic plans.

Details of the process to save files in electronic format are available. The electronic use and storage of right of way plans documents the history of acquisition and allows staff to access approved plans as needed.

Additionally, the specific role of the Transportation Project Manager in obtaining authority to acquire right of way on a project is found in EPG 236.3.4 Right of Way Acquisition Authority and Project Funding.

The project manager should also ensure that the easement needs of utilities affected by the proposed improvement have been addressed prior to submission of the approved right of way plans to the Design Division (see EPG 643.2.1.5 Right of Way).

Additionally, the project manager is responsible for providing the results of the DGN Merger tool to the district’s Right of Way Manager. The DGN Merger tool should be run on the approved right of way plans and will provide the Right of Way Section polygons defining the shape of the right of way parcels to be purchased. Along with the file containing the polygons, the appropriate scale factor will also be provided. If any changes to the right of way plans occur after the tool’s information is provided to the Right of Way Manager, the project manager is responsible for having the DGN Merger tool run against the modified right of way plans and will provide the resulting file to the District Right of Way Manager. More information can be found at How to use the DGN Merger Tool.

236.13.13 Requirements for Property Acquisition Using Eminent Domain

It is important for MoDOT to maintain good public involvement early in the project development process and to demonstrate its commitment to good-faith negotiations in the acquisition of property.

Every effort will be made to communicate with property owners who are potentially impacted by a transportation project. This communication begins with an initial letter describing the proposed project, the schedule for its planning and design and encouraging landowners in the vicinity of the project to participate in the public involvement process.

Detailed procedures concerning the acquisition of property using eminent domain are available.

The Right of Way Section must be provided with copies of the initial and certified letters to property owners, along with copies of the rejection and acceptance letters sent to anyone who submits an alternate location. Copies of these letters will be used during the condemnation process to prove that MoDOT has engaged in good faith negotiations.

236.13.13.1 Right of Way Obtained by Negotiation

With concurrence from the Design Division regarding environmental impacts and following approval of the right of way plans by the district engineer, the transportation project manager can request acquisition authority. Since federal funding is used to acquire right of way for a project, authorization from FHWA is required prior to the start of acquisition.

Section 227.050 of the Missouri State Statutes requires the filing of detailed right of way plans with the proper authorities in order to acquire right of way. A set of approved right-of-way plans must be filed with the clerk(s) of all counties and cities through which an improvement will pass, prior to advertising the project for the bid opening.

236.13.13.2 Right of Way Obtained by Condemnation

Why is Commission Certification Required for Condemnation?

The authority to exercise the power of eminent domain is inherent in the sovereign and no constitutional grant is necessary to its exercise. This right has been delegated by the Constitution and statues of the State to agencies of the State, such as municipalities, counties, Conservation Commission, Highways and Transportation Commission, State Park Board, colleges and universities, Board of Public Buildings, and to certain so-called public service corporations, such as railroads, water companies, power companies, telephone and telegraph companies, and pipeline companies.

When an agency of the State or a corporation seeks to exercise the power of eminent domain it must be able to show its authority to do so. The use to be made of the property must be a public one, and the purpose must be within the scope of authority or power of the condemnor.

When MoDOT is required to condemn property to construct a transportation improvement, it must prove to the Court that the plans that describe the property to be acquired have been “approved” by the Commission. This approval achieves two things. First, it proves the plans are for a project adopted by the Commission. Secondly, since the Commission is responsible for the operation of MoDOT as established in the Missouri Constitution, only it has the necessary legal authority to acquire property. This approval shows the Court that MoDOT is acting on behalf of the Commission.

When condemnation is necessary to acquire right of way for a project, approval and certification of the plans by the commission (refer to the box to right) is required. To obtain approval and certification, the district shall prepare and email the certification document, with a cover letter, and the final and approved right of way plans attached as Adobe Acrobat files (pdf.'s) or a note indicating the location of the electronic plans to the Design Division via rwcert@modot.mo.gov. A sample cover letter is available together with a sample certification document. The project description in the cover letter and the certification document must include the project’s outermost termini or right of way limits (including easements, borrow and waste areas), in stations and match the description in the STIP.

The e-mail must indicate whether a commissioner has a potential conflict of interest (i.e., a commissioner owns property, or has a property interest, within one-mile of any part of the improvement) concerning the project. District right of way and the Chief Counsel's Office can provide information on potential conflict of interest areas. In the event a possible conflict does exist, the name of the commissioner, the location of the property (or property interest), and the direction and distance to the project will be required. If no conflict of interest exists, the e-mail will clearly state this information.

Upon receipt of the email including the electronic certification document, cover letter, conflict of interest information, and the final and approved right of way plans attached as Adobe Acrobat files (pdf.'s) or a note indicating the location of the electronic plans, the Design Division will request the project be added to the Commission’s Agenda for approval. Following the Commission’s approval of the plans, the Design Division will obtain certification by the Commission's Secretary. The Commission's approval of the plans, the Commission Secretary's signature and seal on the certification document, and its attachment to the right of way plans, constitutes certified right of way plans. The certification shall be stored with the electronic plans.

A set of approved right of way plans must be filed with the clerk(s) of all counties and cities through which the proposed improvement will pass, prior to advertising the project for bids. In addition, when right of way is obtained by condemnation, the certified right of way plans must be filed with the circuit clerk(s) in the counties where the condemnation petition will be filed. Filing the certified right of way plans with the circuit clerk(s) must be coordinated with the chief counsel’s office who typically files the certified right of way plans at the same time the condemnation petition is filed.

236.13.14 Plan Changes

When changes in the right of way plans occur, it is necessary to refile these plan changes with the proper authorities. The procedures described above also apply to amended plans except only the revised sheet(s) and an updated title sheet need to be submitted. The amended title sheet will include the revision date and a note indicating the number of the plan sheets that have been revised. For subsequent revisions, the title sheet will include the current information and all previous information.

However, once the plans have been approved by the Commission for condemnation, changes to the plans that are related to the acquisition of property and/or property rights will require the approval of those plans again by the Commission, along with a revised certification document executed by the Commission Secretary. Types of plan changes requiring approval again include, but are not limited to: an increase or decrease in the acreage or square footage to be acquired; changing the location of an entrance; changing the grade of an entrance; access changes related to breaks in the median; moving the location of a property line; any changes or corrections made to the characteristics of individual properties; etc. For these types of changes, a sample cover letter and certification document for submittal to the Design Division are available. Plan changes after the Commission’s approval and the Commission Secretary’s certification of the right of way plans are discouraged and are to be kept to a minimum. All plan changes, request letters, and amended certifications shall be stored electronically to preserve the project history and accuracy in the acquisition process.

Plan changes that are not related to the acquisition of property and/or property rights do not require approval of the plans again by the Commission. Plan changes not related to the acquisition of property and/or property rights are those modifications or additions to plans that will ultimately serve as the contract plans. Types of plan changes not requiring approval again by the Commission include: changes in pavement design; changes in quantities due to traffic control; changes in erosion control; changes in signing; changes in striping; etc. Plan changes not related to the acquisition of property and/or property rights are not to be inserted into the set of Right of Way Plans that have been previously approved by the Commission.

236.13.15 Right of Way Clearance

After all right of way has been acquired, either by negotiations or condemnation the district advises the Right of Way Section that the right of way is "clear" (for additional information concerning the various types of right of way clearance see EPG 236.5.26 Acquired Improvements). The Design Division is furnished a copy of this letter. Improvement projects are not advertised for a monthly bid opening until all right of way has been cleared. Only with special approval by the Asst. to the State Design Engineer - Right of Way can projects be advertised prior to final clearance of the right of way. A job special provision in the bidding documents is required under these conditions to restrict the contractor's construction operations from certain areas or parcels that are not "clear" until approved by the resident engineer. The resident engineer will not approve construction operations in restricted areas until an entire clearance has been issued. Advertising requirements can be found in EPG 103.1.7 Advertising Projects for Bid opening and Purchasing Bidding Documents.

236.13.16 Requesting Asbestos Inspection

It is necessary for all building structures, or building remains, which MoDOT takes possession of to be inspected for the presence of asbestos containing materials (ACM). Buildings, or building remains and debris will be inspected for ACM prior to salvage by a third party, demolition and removal. The inspection methods are invasive and destructive; therefore, the department must have physical possession before inspection begins. If it is believed there will be salvage of a building by a third party, the request for asbestos inspection must stipulate that non-destructive sampling methods are necessary. The request for asbestos inspection is to be made in writing by the district to the State Construction and Materials Engineer after MoDOT has taken physical possession of the property. This request must contain the following information:

• Job Number
• Parcel numbers to be inspected and the total number of parcels on the project requiring building demolition
• Addresses of the structures to be inspected
• Plan sheets showing the location of all parcels and structures
• A floor plan sketch of all buildings to be inspected, as may be used for appraisal
• The name of the district person to contact for keys to gain access
• The estimated dates for possession of each parcel and the deadline for completing the inspection report

It is important that a positive identification be made of each structure to be inspected. Therefore, the inspectors need a contact person in the district who is familiar with the properties or they must receive photographs of the buildings taken from the existing roadway to ensure a proper identification can be made.

Construction and Materials Division personnel will take samples of all suspected asbestos containing materials. Test results will be reported to the district on Forms T746, T747 and T748. Copies of these forms must be included in all contract proposals requiring asbestos abatement or demolition of the buildings. Only the ACM listed on Form T-748 will be tabulated for removal.

236.13.16.1 Requesting Hazardous Waste Survey

During preliminary design, the district will request the environmental section of the Design Division perform a screening and on-site investigation for storage tanks and hazardous waste (See EPG 127.8 Hazardous and Solid Waste). Based upon recommendations by the environmental specialists and using the cleanup estimate provided, appropriate tabulated quantities and job special provisions if necessary will be incorporated in the construction plans. Removal requirements, method of measurement and basis of payment for removal of contaminated materials and storage tanks are contained in Section 202 of the Missouri Standard Specifications for Highway Construction.

Most underground storage tanks, containing petroleum products, have an insurance policy covering the cost of leak clean up. During negotiations, district right of way personnel will have the insurance policy transferred to MoDOT upon taking possession of the parcel. An application to the insurance administrator must be made to determine the quantities of material eligible for cost reimbursement. This application will be made by the environmental specialist in the Design Division prior to the contractor's notice to proceed.

236.13.16.2 Asbestos Containing Materials

Asbestos removal must be completed prior to demolition of the building. The asbestos containing materials (ACM) requiring removal will be listed on Form T-748 for each parcel inspected. The contract proposal for asbestos removal will use the standard bid items. The Demolition and Removals form will be used. If all of the parcels have not been inspected for ACMs, estimated quantities will be used. Check with the design liaison engineer for assistance with this procedure.

When quantities of ACM to be removed inside a single structure exceed 160 ft² or 260 linear feet, third party air monitoring is required in St. Louis County and the City of Kansas City. The district project manager will coordinate with the Design Division to establish a memorandum of understanding with a certified industrial hygienist or equivalent to perform the monitoring of the abatement, prior to commencement of the work.

Once the department has taken possession of a parcel, salvage of any materials or structures will not be permitted until an inspection for asbestos and hazardous waste materials has been made and all hazardous waste or ACM has been removed. Our operations are governed by the National Emission Standard for Hazardous Air Pollutants (NESHAP) asbestos regulations of the Environmental Protection Agency and regulations of the Missouri Department of Natural Resources.

The project manager will ensure there is close coordination between the district staff concerning right of way acquisition, plan development and contract administration for the removal of all improvements. Additional resources for hazardous waste screening, materials testing and contract proposal preparation can be obtained from the Design Division as needed.

236.13.17 Demolition and Removal of Improvements

When parcels containing buildings, structures, wells, septic tanks, individual lagoons or other improvements, which may remain vacant or unattended for an extended time are acquired, it is preferred a contract is awarded for demolition and removal of improvements in advance of the general roadway contract. This is done to remove safety hazards, minimize liability and maintain an orderly right of way.

Specifications governing this work are contained in Section 202 of the Missouri Standard Specifications for Highway Construction. It is desired to make administration of these demolition and removal contracts efficient by grouping together work from various projects within the district. The quantities in this proposal need to be tabulated by parcel for each roadway project to be included.

Job special provision JSP-99-08, Demolition and Removal Contract, will be used for these advanced removals of improvements. It is recommended the district anticipate those parcels that will be acquired within a 12 month period throughout the district and include them in one contract for demolition and removal of improvements. Job Special Provisions will designate petroleum storage tanks, lagoons, or other items that require early removal as a first or early order of work after the notice to proceed. There will be special cases when abatement of ACM and demolition and removal of buildings are included in the general roadway contract.

236.13.18 Disposition of Existing Route

Recommendations for the disposition of existing roadways included in the location/environmental study or conceptual study report must receive approval before they can be included in the approved right of way plans. Approval of the disposition of the existing roadway is initiated by the submission of a Change in Route Status Report (CRSR) to the Transportation Planning Division.

As the right of way plans are developed, the recommendations for the disposition of existing roadways, which are included in the location/environmental study or conceptual study report, must be reviewed to ensure the plans conform to these recommendations. Where the recommendations call for the existing roadway to be transferred to another local government agency, written documentation will be included in the CRSR that outlines the terms of the commitment made by that agency for accepting the sections of existing roadway. In addition, information must be included in the CRSR if an existing route is retained but its classification or the state system is changed. Available options for the disposition of the existing roadway may range from retention in the state highway system to transfer to another government agency or even total abandonment.

An approved CRSR that requires a section of existing roadway to be transferred to another owner, public or private, will also require the preparation and execution of a roadway relinquishment agreement. Guidelines for the preparation of this agreement are found in EPG 236.14.1.6.