hat is “conditional” right-of-way
certification?
Conditional right-of-way (ROW) certification
identifies the acquisition status of ROW that is
required to advance a highway project to
construction when such property has not yet been
acquired, the acquiring agency has not yet obtained
right-of-occupancy, or future displacees are still
residing on such property. Conditional ROW
certification, which is provided for in 23 CFR
635.309(c)(3), is sometimes called a “cert 3” or a
“work around.”
Under what circumstances can a conditional
ROW certification be used?
A conditional ROW certification be used when the
state (or local public agency) ensures that any
occupants who have not yet moved “…are protected
against unnecessary inconvenience and
disproportionate injury or any action coercive in
nature.” The State (or local public agency) must
also provide “…a realistic date when physical
occupancy and use is anticipated as well as
substantiation that such date is realistic.”
The regulation says the State may request
authorization for a conditional right-of-way
certification “…only in very unusual
circumstances.” The regulation further states:
“This exception must never become the rule.”
Do these two sentences restrict the ability to
use the conditional ROW certification?
The authorization of construction prior to the
completion of acquisition and relocation presents
some risks. One risk is that any delay in obtaining
access to the properties in question may result in
contractor claims. Another risk is that the proximity
of construction activities coerce the property owners
and/or displaced persons to make decisions that are
not in their best interest. As the regulation states,
these persons must be protected from unnecessary
inconvenience, disproportionate injury, and actions
coercive in nature.
Should we begin using conditional ROW
certifications on a regular basis?
The conditional ROW certification is one of a number
of tools available to States and local public agencies
for advancing projects to construction in a timelier
manner. As with any tool, the conditional ROW
certification does come with certain risks. Before
choosing to use this tool, the State or local public
agency must carefully evaluate those risks and
properly document its decisions. In some cases
approval from the FHWA Division Office may be
required.
W
More Information
For more information about functional replacement or other types of flexibilities in ROW, visit FHWA’s Every Day Counts
website (www.fhwa.dot.gov/everydaycounts/projects/toolkit/row.cfm) or contact Virginia Tsu, FHWA Office of Real
Estate Services, at (202) 366-2042 or virginia.tsu@dot.gov.
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