Project Certification & Encroachments The SR 305 Experience Project Certification & Encroachments The SR 305 Experience

Questions Question #1 – Question #1 – Do encroachments potentially affect project R/W certification? Question #2 – Question #2 – Does it matter whether an encroachment is located within or outside of the right of way needed for the project? Question #3 – Question #3 – Do encroachments impact project R/W certification if no right of way is needed for a project, such as paving only projects?

Project Certification - Defined Real Estate Services certifies that: Real Estate Services certifies that: (1) All necessary property rights have been acquired (2) Legal and physical possession has been obtained (3) All occupants have been relocated

Encroachment – Defined Any unauthorized use of WSDOT owned land Any unauthorized use of WSDOT owned land

The SR 305 Learning Experience Encroachments R Us In 1952, WSDOT established a 150 ft. wide corridor for SR 305 and purchased all rights of way at that time. In 1952, WSDOT established a 150 ft. wide corridor for SR 305 and purchased all rights of way at that time. For 54 years, from 1952 until 2006 over 100 feet of excess right of way, (50 feet each side of centerline) went unutilized, in an urban area. For 54 years, from 1952 until 2006 over 100 feet of excess right of way, (50 feet each side of centerline) went unutilized, in an urban area.

SR 305 Jurisdictional Issues Contribute to Problem SR 305 is a non-limited access highway within the City limits. SR 305 is a non-limited access highway within the City limits. Poulsbo obtained jurisdiction pursuant to RCW Title to all SR 305 rights of way vested in the City of Poulsbo. Poulsbo obtained jurisdiction pursuant to RCW Title to all SR 305 rights of way vested in the City of Poulsbo. Per RCW (15)… no vacation, rental, or any other nontransportation use of any unused portion of any such right of way may be made by the city or town without prior written approval of the department... Per RCW (15)… no vacation, rental, or any other nontransportation use of any unused portion of any such right of way may be made by the city or town without prior written approval of the department... Per RCW if any right of way is leased, the rent collected will be shared in the same proportion as the acquisition cost was shared. Per RCW if any right of way is leased, the rent collected will be shared in the same proportion as the acquisition cost was shared.

The Poulsbo Dilemma Spring of 2006 a construction project was scheduled to add two lanes, plus bicycle lanes and sidewalks to SR 305. Spring of 2006 a construction project was scheduled to add two lanes, plus bicycle lanes and sidewalks to SR 305. WSDOT Real Estate became aware of seventeen encroachments on the right of way just five months before the ad date for SR 305. Due to fish windows the ad date was fixed. WSDOT Real Estate became aware of seventeen encroachments on the right of way just five months before the ad date for SR 305. Due to fish windows the ad date was fixed. Only one encroachment located within the right of way needed for the widening project. The remaining encroachments were outside of the proposed widening. Only one encroachment located within the right of way needed for the widening project. The remaining encroachments were outside of the proposed widening.

Questions for FHWA If an encroachment is outside of the area needed for the project but still within the project limits being certified does the encroachment need to be cleared or under lease before the project can be certified? If an encroachment is outside of the area needed for the project but still within the project limits being certified does the encroachment need to be cleared or under lease before the project can be certified? If no right of way is needed for a project, can encroachments affect project R/W certification such as paving only projects? If no right of way is needed for a project, can encroachments affect project R/W certification such as paving only projects?

FHWA Response 23 CFR 1.23 Rights-of-Way... all real property, including air space, within the right-of-way boundaries of a project shall be devoted exclusively to public highway purposes. No project shall be accepted as complete until this requirement has been satisfied.... all real property, including air space, within the right-of-way boundaries of a project shall be devoted exclusively to public highway purposes. No project shall be accepted as complete until this requirement has been satisfied. The State highway department shall be responsible for preserving such right-of- way free of all public and private installations, facilities or encroachments…

SR 305 Tasks All 17 encroachments needed to be cleared or under lease prior project advertisement All 17 encroachments needed to be cleared or under lease prior project advertisement Permission had to be obtained from the City of Poulsbo to lease the sites Permission had to be obtained from the City of Poulsbo to lease the sites

SR 305 Solution - Incentives WSDOT offered incentives to sign leases…. Leases became effective upon signature, but lease payments were deferred while project is under construction. First lease payment required is 1/1/2008. Leases became effective upon signature, but lease payments were deferred while project is under construction. First lease payment required is 1/1/2008. Both parties can terminate lease with 30 days notice Both parties can terminate lease with 30 days notice Lease secured use of right of way during and after construction of project Lease secured use of right of way during and after construction of project

Result The 17 leases were secured by April 19 th 2006 (in less then 60 days after City approval to proceed) and SR 305 project made Ad. The 17 leases were secured by April 19 th 2006 (in less then 60 days after City approval to proceed) and SR 305 project made Ad.

Certification & Encroachments – Policy Based on 23 CFR 1.23 all encroachments must be cleared or under lease prior to certification of the project regardless of whether the encroachments are within or outside of the portion of the right of way needed for the project. Based on 23 CFR 1.23 all encroachments must be cleared or under lease prior to certification of the project regardless of whether the encroachments are within or outside of the portion of the right of way needed for the project. All right of way to be certified must be clear of any encroachments

Conclusions Question #1 – Do encroachments potentially affect project R/W certification? Answer All right of way to be certified must be free of an encroachments. All R/W must be devoted exclusively to public highway purposes. No project shall be accepted as complete until this requirement has been satisfied. All R/W must be devoted exclusively to public highway purposes. No project shall be accepted as complete until this requirement has been satisfied. The State highway department shall be responsible for preserving such right-of-way free of all public and private installations, facilities or encroachments

Conclusions Question #2 – Does it matter if an encroachment is located within or outside of the right of way needed for the project? Answer: No. All right of way must be cleared

Considerations: If entire right of way is certified, the contractor assumes that he has free use of all of the right of way for use for staging and operations. If there are encroachments, the contractor could possibility submit requests for change orders because the full right of way width is not available for use. If entire right of way is certified, the contractor assumes that he has free use of all of the right of way for use for staging and operations. If there are encroachments, the contractor could possibility submit requests for change orders because the full right of way width is not available for use. If the encroacher refuses to lease the property and refuses to move the encroachment, state law may make it a long and cumbersome process to remove the encroachment. If the encroacher refuses to lease the property and refuses to move the encroachment, state law may make it a long and cumbersome process to remove the encroachment.

Conclusions Question #3 – Do encroachments impact project R/W certification if no right of way is needed for a project, such as paving only projects? Answer projects without any known R/W impacts are not now certified by WSDOT Real Estate Services. With no requirement to certify, it is unlikely that encroachments would be identified. The R/W would need to be surveyed to properly document encroachments. In order to document encroachments on pavers a R/W survey would be required. A survey will not be ordered unless FHWA requires one

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