The National Academies

NCHRP 20-06/Topic 23-01 [Active]

Condemnation Hierarchy-Competing Public Uses
[ NCHRP 20-06 (Legal Problems Arising out of Highway Programs) ]

  Project Data
Funds: $63,500
Staff Responsibility: Gwen Chisholm-Smith
Research Agency: The Thomas Law Firm
Principal Investigator: Larry W. Thomas
Effective Date: 3/9/2018
Completion Date: 3/9/2019

The National Cooperative Highway Research Program (NCHRP) plans to award a contract for a study and report. NCHRP anticipates an estimated 300-hour level of effort and compensation not to exceed $65,000. Legal research reports sponsored by this project are published in NCHRP's Legal Research Digest (LRD) series or in electronic format. Publications are made available to some libraries and to approximately 4,000 transportation lawyers and officials through the TRB distribution network.
When land is already devoted to a public use, it can be difficult for State DOTs to acquire portions of this land for highway purposes. The preexisting public uses can range from use as a park, park protected by section 6(f) of the LAWCON Act, school, regulated pipeline, or drainage ditch, and a quasi-public use such as a railroad. In some cases the land is held by a local government and in other cases the land is held by a federal agency. Lands held by a public utility or common carrier often have protections granted by a state or federal regulatory agency such as the Federal Energy Regulatory Commission (FERC), public utilities commissions (state and federal), and the Surface Transportation Board. Frequently, State DOTs must seek assistance from FHWA and other agencies to acquire land from federal agencies. State DOTs often lack the statutory authority to acquire these properties through the power of condemnation. Additionally, any acquisition may be subject to the approval of a third-party regulatory authority.
The objective of this research is to document practices State DOTs use to acquire properties through the power of condemnation and to compensate the owners for the competing public use. The research should include, but not be limited to, appraisal and valuation methods for the acquisition of easements, temporary construction easements, and other interests from railroad companies.
Task 1. Research Plan and Detailed Report Outline. The consultant will conduct background research and collect relevant material. Based on the initial but complete review of the source material, consultant will propose a detailed report outline. The outline should be about 8 to12 pages (or other appropriate length), include a proposed survey if one is to be used, and contain sufficient detail to inform the NCHRP project panel of what a 75- to 125-page report will contain. This outline should also contain the estimated pagination for each proposed section and/or subsection. This material will be submitted to NCHRP for consideration and approval.
           Estimated Work hours: 100
           Estimated length of time: 60 days
Task 2. After NCHRP has approved the detailed outline, the consultant should conduct additional research, case and statutory/regulatory analysis, and collect additional primary data (survey) to the extent necessary.
            Estimated work hours: 25
            Estimated length of time: 60 days
Task 3. Draft report in accordance with the approved outline (including modifications required by NCHRP).
Estimated work hours: 125
            Estimated length of time: 90 days
Task 4. Revise report as necessary. The consultant should estimate that two revisions will be necessary. One revision may be required after review by the NCHRP Staff and members of a select subcommittee. Additional revisions may be required after the full project panel has reviewed the report.
            Estimated work hours: 50
            Estimated length of time: 30 days

STATUS: Research in progress

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