Project Certification & Project Certification & EncroachmentsEncroachments

The SR 305 ExperienceThe SR 305 Experience

QuestionsQuestions Question #1 –Question #1 –

Do encroachments potentially affect project R/W Do encroachments potentially affect project R/W certification?certification?

Question #2 –Question #2 –Does it matter whether an encroachment is Does it matter whether an encroachment is located within or outside of the right of way located within or outside of the right of way needed for the project?needed for the project?

Question #3 –Question #3 –Do encroachments impact project R/W Do encroachments impact project R/W certification if no right of way is needed for a certification if no right of way is needed for a project, such as paving only projects?project, such as paving only projects?

Project Certification - DefinedProject Certification - Defined

Real Estate Services certifies that:Real Estate Services certifies that:

(1) All necessary property rights (1) All necessary property rights have been acquiredhave been acquired

(2) Legal and physical possession (2) Legal and physical possession has been obtainedhas been obtained

(3) All occupants have been (3) All occupants have been relocatedrelocated

Encroachment – DefinedEncroachment – Defined

Any unauthorized use of WSDOT Any unauthorized use of WSDOT owned landowned land

The SR 305 Learning Experience The SR 305 Learning Experience Encroachments “R” UsEncroachments “R” Us

In 1952, WSDOT established a 150 ft. wide In 1952, WSDOT established a 150 ft. wide corridor for SR 305 and purchased all corridor for SR 305 and purchased all rights of way at that time.rights of way at that time.

For 54 years, from 1952 until 2006 over For 54 years, from 1952 until 2006 over 100 feet of excess right of way, (50 feet 100 feet of excess right of way, (50 feet each side of centerline) went unutilized, in each side of centerline) went unutilized, in an urban area.an urban area.

SR 305 Jurisdictional Issues SR 305 Jurisdictional Issues Contribute to ProblemContribute to Problem

SR 305 is a non-limited access highway within the City SR 305 is a non-limited access highway within the City limits.limits.

Poulsbo obtained jurisdiction pursuant to RCW 47.24.020. Poulsbo obtained jurisdiction pursuant to RCW 47.24.020. Title to all SR 305 rights of way vested in the City of Title to all SR 305 rights of way vested in the City of Poulsbo.Poulsbo.

Per RCW 47.24.020(15)… no vacation, rental, or any other Per RCW 47.24.020(15)… no vacation, rental, or any other nontransportation use of any unused portion of any such nontransportation use of any unused portion of any such right of way may be made by the city or town without prior right of way may be made by the city or town without prior written approval of the department. . .written approval of the department. . .

Per RCW if any right of way is leased, the rent collected Per RCW if any right of way is leased, the rent collected will be shared in the same proportion as the acquisition will be shared in the same proportion as the acquisition cost was sharedcost was shared. .

The Poulsbo DilemmaThe Poulsbo Dilemma Spring of 2006 a construction project was Spring of 2006 a construction project was

scheduled to add two lanes, plus bicycle lanes scheduled to add two lanes, plus bicycle lanes and sidewalks to SR 305.and sidewalks to SR 305.

WSDOT Real Estate became aware of seventeen WSDOT Real Estate became aware of seventeen encroachments on the right of way just five encroachments on the right of way just five months before the ad date for SR 305. Due to months before the ad date for SR 305. Due to “fish windows” the ad date was fixed.“fish windows” the ad date was fixed.

Only one encroachment located within the Only one encroachment located within the right of way needed for the widening right of way needed for the widening project. project. The remaining encroachments were The remaining encroachments were outside of the proposed widening.outside of the proposed widening.

Questions for FHWAQuestions for FHWA

If an encroachment is outside of the area If an encroachment is outside of the area needed for the project but still within the needed for the project but still within the project limits being certified does the project limits being certified does the encroachment need to be cleared or under encroachment need to be cleared or under lease before the project can be certified?lease before the project can be certified?

If no right of way is needed for a project, If no right of way is needed for a project, can encroachments affect project R/W can encroachments affect project R/W certification such as paving only projects?certification such as paving only projects?

FHWA ResponseFHWA Response23 CFR 1.23   Rights-of-Way23 CFR 1.23   Rights-of-Way

... ... all real property, including air space, all real property, including air space, within the right-of-way boundaries of a within the right-of-way boundaries of a project shall be devoted project shall be devoted exclusivelyexclusively to to public highway purposes. No project shall public highway purposes. No project shall be accepted as complete until this be accepted as complete until this requirement has been satisfied.requirement has been satisfied.

The State highway department shall be The State highway department shall be responsible for preserving such right-of-responsible for preserving such right-of-way free of all public and private way free of all public and private installations, facilities or installations, facilities or encroachmentsencroachments……

SR 305 TasksSR 305 Tasks

All 17 encroachments needed to be All 17 encroachments needed to be cleared or under lease prior project cleared or under lease prior project advertisementadvertisement

Permission had to be obtained from Permission had to be obtained from the City of Poulsbo to lease the sitesthe City of Poulsbo to lease the sites

SR 305 “Solution” - IncentivesSR 305 “Solution” - Incentives

WSDOT offered incentives to sign leases….WSDOT offered incentives to sign leases….

Leases became effective upon signature, but Leases became effective upon signature, but lease payments were deferred while project is lease payments were deferred while project is under construction. First lease payment required under construction. First lease payment required is 1/1/2008.is 1/1/2008.

Both parties can terminate lease with 30 days Both parties can terminate lease with 30 days noticenotice

Lease secured use of right of way during and Lease secured use of right of way during and after construction of projectafter construction of project

ResultResult

The 17 leases were secured by April The 17 leases were secured by April 1919thth 2006 (in less then 60 days after 2006 (in less then 60 days after City approval to proceed) and SR 305 City approval to proceed) and SR 305 project made “Ad”.project made “Ad”.

Certification & Encroachments – PolicyCertification & Encroachments – Policy

Based on 23 CFR 1.23 all encroachments Based on 23 CFR 1.23 all encroachments must be cleared or under lease prior to must be cleared or under lease prior to certification of the project regardless of certification of the project regardless of whether the encroachments are within or whether the encroachments are within or outside of the portion of the right of way outside of the portion of the right of way needed for the project.needed for the project.

““All right of way to be certified must be clear All right of way to be certified must be clear of any encroachments”of any encroachments”

ConclusionsConclusions

Question #1 –Question #1 –Do encroachments potentially affect project R/W Do encroachments potentially affect project R/W certification?certification?

AnswerAnswerAll right of way to be certified must be free of an All right of way to be certified must be free of an encroachments.encroachments.

All R/W must “All R/W must “be devoted be devoted exclusively exclusively to public to public highway purposes. No project shall be accepted as highway purposes. No project shall be accepted as complete until this requirement has been satisfiedcomplete until this requirement has been satisfied..The State highway department shall be responsible The State highway department shall be responsible for preserving such right-of-way free of all public for preserving such right-of-way free of all public and private installations, facilities orand private installations, facilities or encroachmentsencroachments””

ConclusionsConclusions

Question #2 –Question #2 –Does it matter if an encroachment is Does it matter if an encroachment is located within or outside of the right located within or outside of the right of way needed for the project?of way needed for the project?

Answer:Answer:No. All right of way must be clearedNo. All right of way must be cleared

Considerations:Considerations:

If entire right of way is certified, the contractor If entire right of way is certified, the contractor assumes that he has free use of all of the right of assumes that he has free use of all of the right of way for use for staging and operations. If there way for use for staging and operations. If there are encroachments, the contractor could are encroachments, the contractor could possibility submit requests for change orders possibility submit requests for change orders because the full right of way width is not because the full right of way width is not available for use.available for use.

If the encroacher refuses to lease the property If the encroacher refuses to lease the property and refuses to move the encroachment, state law and refuses to move the encroachment, state law may make it a long and cumbersome process to may make it a long and cumbersome process to remove the encroachment.remove the encroachment.

ConclusionsConclusions

Question #3 –Question #3 –Do encroachments impact project R/W certification if no Do encroachments impact project R/W certification if no right of way is needed for a project, such as paving only right of way is needed for a project, such as paving only projects?projects?

AnswerAnswerprojects without any “known” R/W impacts are not now projects without any “known” R/W impacts are not now certified by WSDOT Real Estate Services. With no certified by WSDOT Real Estate Services. With no requirement to certify, it is unlikely that encroachments requirement to certify, it is unlikely that encroachments would be identified.would be identified.

The R/W would need to be surveyed to properly document The R/W would need to be surveyed to properly document encroachments. In order to document encroachments on encroachments. In order to document encroachments on “pavers” a R/W survey would be required. A survey will not “pavers” a R/W survey would be required. A survey will not be ordered unless FHWA requires onebe ordered unless FHWA requires one

Conclusion Cont.Conclusion Cont.

The FHWA has stated that it is not The FHWA has stated that it is not their intent to start a “witch hunt” their intent to start a “witch hunt” and there has been no official change and there has been no official change in policy at the FHWA. We have in policy at the FHWA. We have always been operating under 23 CFR always been operating under 23 CFR 1.23. 1.23.