POLICY STATEMENT 70
ACQUISITION OF EASEMENTS, RIGHTS OF WAY AND REAL PROPERTY
Prepared by: S. Douglas Spell
Adopted by Council: 10/12/89
Effective: 10/12/89
Purpose
To provide a procedure for the acquisition of the easements, rights of way, and real property required as a part of a public improvement project. This procedure shall fulfill the legal rights of property owners while providing an equitable and time efficient method for obtaining easements, rights of way, and real property.
Procedure
The capital improvement project for which the easements, rights of way, or real property is required shall receive approval by the Town Council. The procedures for the acquisition of easements, rights of way, or real property shall be as listed herein.
Definitions
1. Easements: The acquisition of easements shall be required for the construction, maintenance, and operation of water lines, sanitary sewer lines, sidewalks, greenways or storm drainage. The Town shall obtain utility easements with provisions stipulated in the deed of easement allowing use of the easement as a "utility and greenway easement." Temporary construction easements may be required for grading or construction activity on private property.
a. Permanent Easements: The Town shall obtain permanent easements to facilitate the construction of utility lines, drainage facilities, or sidewalks across private property.
b. Temporary Construction Easements: The Town shall obtain temporary construction easements when required as a part of a project. In that the easement is temporary, the Town typically does not compensate the property owner for the easement except in instances resulting in damage to the property.
2. Right of Way: The Town acquires rights of way as a part of a street improvement project. The Town may acquire rights of way for Town street projects and N.C. Department of Transportation projects.
3. Real Property: The Town acquires real property for the purpose of constructing public improvement projects or public facilities. The procedure for acquiring real property shall be as described herein unless otherwise approved by the Town Manager.
Acquisition Authorization
All negotiations for the acquisition of easements, rights of way, or real property shall be performed by individuals authorized by the Town Council.
The Department Director of the department responsible for the project shall make a recommendation to the Town Manager regarding the property acquisition being performed by the Town or an outside agency.
1. Acquisition by Town
Funds shall be budgeted by the responsible Department for the cost associated with the acquisition of the easement, right of way, or real property.
The Town shall provide information to the appraiser consisting of such items as current zoning and future land uses in accordance with the Town of Cary growth plan. The appraiser shall evaluate the value of property to be acquired and shall consider comparable real estate sales or other recognized method of appraisal in this determination.
2. Acquisition by Outside Agency
For projects in which the Town utilizes the services of an outside agency, funds shall be appropriated for the cost of the acquisition services of the outside agency.
The Town shall maintain a listing of qualified agencies which perform land acquisition services. This list shall be updated by the Town periodically and any agencies not satisfactorily performing the services shall be deleted from the listing.
The Town shall retain an outside agency by requesting proposals from qualified agencies. The "Request for Proposals" shall include a defined scope of work to be performed by the agency. The proposal submitted by the agency shall provide an estimated cost for the services required to fulfill the scope of work, including an estimate of the man-hours required and the hourly rate to be billed for the individuals performing the work.
Acquisition Procedure
1. The Town shall contact all affected property owners of a project to receive permission to be on the premises for the purpose of appraising the value associated with the required acquisition.
a. The individual coordinating the acquisition shall mail a letter requesting authorization to enter the property for the purpose of surveys, examinations, borings, and/or appraisals.
b. In the event that a property owner will not grant authorization to enter the property, a 30 day written notice shall be mailed to the owner (at the last known address) as well as to the person in possession of the land.
2. In cases where a fee appraisal is not deemed necessary by the responsible department, a value analysis shall be performed to determine the estimated market value of the property to be acquired.
3. The Town shall maintain a listing of qualified real estate appraisers and periodically revise the listing as necessary. Appraisers who perform their services in a timely, cost efficient and competent manner shall remain on the approved list while others may be deleted.
4. The Town or agency shall retain the services of a qualified, and preferably certified, real estate appraiser to assess the value and/or damage to the property under consideration. The appraisal shall be based on comparable sales of comparable property in the general vicinity of the project or other recognized method of appraisal.
5. The appraiser shall submit to the Town an appraisal report detailing the effect the project will have on the remaining property as well as a value of the required property.
6. From the information provided in the appraisal report, the Town shall make a bonefide offer of the fair market value to the property owner for the required property. In conjunction with the offer, the Town can designate the limits of the property required for the project.
7. Proper documentation consisting of a deed of easement, right of way easement or letter of offer shall be provided to the property owner along with a map of the property to be acquired.
8. The Town or outside agency shall allow two weeks for the property owner to review the offer for acquisition and supporting documentation.
9. Following the two week period, the designated individual in the responsible department or of the outside agency shall contact the property owner regarding the offer for acquisition of the required property. The Town will assist in providing additional information, or a reasonable nature, regarding the acquisition.
10. After the two week follow-up contact, the Town will allow an additional two week period of consideration by the property owner. Following this time period, the Town will contact the property owner so as to obtain the signed document and provide the offered compensation to the property owner.
11. In cases where a property owner counteroffers the acquisition offer of the Town or outside agency, or has a separate appraisal for the required property, the Town will review the information and notify the property owner of the Town’s offer within one week.
12. It is recognized that in certain complex projects the time frames referenced herein will require some flexibility. Therefore, these time frames may be varied upon approval of the responsible department director and Town Manager.
13. In the event that a mutually agreeable acquisition price between the Town and property owner cannot be reached within the time period specified, the Town may acquire the property by right of eminent domain as described in the following section.
Condemnation Process
1. The Town may exercise the right of eminent domain in accordance with N.C. General Statute 40A.
2. The department responsible for the land acquisition will complete a "Request for Condemnation" and submit the request and supporting documentation to the Town Attorney for initiation of the condemnation process. The supporting documentation shall consist of copies of all correspondence with the property owner and the property appraisal report.
3. The requesting department should allow a minimum of three months from the time the request is received by the Town Attorney until possession of the property may be taken. This time may vary depending upon the complexity of the case and the availability of the requesting department and the Town Attorney.