Current through Register Vol. 50, No. 9, September 20, 2024
B.
Definitions
Agency- the federal agency, state, state
agency, or person that acquires the real property or displaces
a person.
a.
Federal
Agency- any department, agency, or instrumentality in the executive
branch of the government, any wholly owned government corporation, the
architect of the capitol, the Federal Reserve Banks and branches thereof, and
any person who has the authority to acquire property by eminent domain under
federal law.
b.
State
Agency- any department, agency or instrumentality of a
state or of a political subdivision of a state, any
department, agency, or instrumentality of two or more states or of two or more
political subdivisions of a state or states, and any person who has the
authority to acquire property by eminent domain under state law.
c.
Lead Agency- the
Department of Transportation acting through the Federal Highway
Administration.
d.
Acquiring Agency- a state agency, as defined in §101.
B.1 b, which has the authority to acquire property by eminent domain under
state law, and a state agency or person which does not have such authority,
unless any such agency or person is acquiring property pursuant to the
provisions of §103. A.1 a-c.
e.
Displacing Agency- any
federal agency carrying out a program or project, and any state, state agency,
or person carrying out a program or project with federal financial assistance,
which causes a person to be a displaced person.
Appraisal- a written statement independently
and impartially prepared by a qualified appraiser setting forth an opinion of
defined value of an adequately described property as of a specific date,
supported by the presentation and analysis of relevant market
information.
Business- any lawful activity, except a farm
operation, that is conducted:
a.
primarily for the purchase, sale, lease and/or rental of personal and/or real
property, and/or for the manufacture, processing, and/or marketing of products,
commodities, and/or any other personal property; or
b. primarily for the sale of services to the
public; or
c. primarily for outdoor
advertising display purposes, when the display must be moved as a result of the
project; or
d. by a nonprofit
organization that has established its nonprofit status under applicable federal
or state law.
Comparable Replacement Dwelling- a dwelling
which is:
a. decent, safe and sanitary
as described in §101. B 6;
b.
functionally equivalent to the displacement dwelling. The term functionally
equivalent means that it performs the same function, provides the same utility,
and is capable of contributing to a comparable style of living. While a
comparable replacement dwelling need not possess every feature of the
displacement dwelling, the principal features must be present. Generally,
functional equivalency is an objective standard, reflecting the range of
purposes for which the various physical features of a dwelling may be used.
However, in determining whether a replacement dwelling is functionally
equivalent to the displacement dwelling, the department may consider reasonable
trade-offs for specific features when the replacement unit is equal to or
better than the displacement dwelling (see §115);
c. adequate in size to accommodate the
occupants;
d. in an area not
subject to unreasonable adverse environmental conditions;
e. in a location generally not less desirable
than the location of the displaced person's dwelling with respect to public
utilities and commercial and public facilities, and reasonably accessible to
the person's place of employment;
f. on a site that is typical in size for
residential development with normal site improvements, including customary
landscaping. The site need not include special improvements such as
outbuildings, swimming pools, or greenhouses (See §109. C.l b);
g. currently available to the displaced
person on the private market. However, a comparable replacement dwelling for a
person receiving government housing assistance before displacement may reflect
similar government housing assistance (See §115); and
h. within the financial means of the
displaced person:
i. a replacement dwelling
purchased by a homeowner in occupancy for at least 180 days prior to initiation
of negotiations (180-day homeowner) is considered to be within the homeowner's
financial means if the homeowner is paid the full price differential as
described in §109. A 3, all increased mortgage interest costs as described
at §109. A.4 and all incidental expenses as described at §109. A 5,
plus any additional amount required to be paid under §109, last resort
housing;
ii. a replacement dwelling
rented by a displaced person is considered to be within his or her financial
means if, after receiving rental assistance under this Part, the person's
monthly rent and utility costs for the replacement dwelling do not exceed the
person's base monthly rental for the displacement dwelling as described at
§109. B.2 b;
iii. for a
displaced person who is not eligible to receive a replacement housing payment
because of the person's failure to meet length-of-occupancy requirements,
comparable replacement rental housing is considered to be within the person's
financial means if the department pays that portion of the monthly housing
costs of a replacement dwelling which exceeds 30 percent of such person's gross
monthly household income. Such rental assistance must be paid under last resort
housing provisions in
§109 for a period of 42 months;
Contribute Materially- that during the two
taxable years prior to the taxable year in which displacement occurs, or during
such other period as the department determines to be more equitable, a business
or farm operation:
a. had average
annual gross receipts of at least $5000; or
b. had average annual net earnings of at
least $1000; or
c. contributed at
least 33 1/3 percent of the owner's or operator's average annual gross income
from all sources;
d. if the
application of the above criteria creates an inequity or hardship in any given
case, the department may approve the use of other criteria as determined
appropriate.
Decent, Safe and Sanitary Dwelling- a
dwelling which meets applicable housing and occupancy codes. However, any of
the following standards which are not met by an applicable code shall apply
unless waived for good cause by the federal agency funding the project. The
dwelling shall:
a. be structurally
sound, weather-tight, and in good repair;
b. contain a safe electrical wiring system
adequate for lighting and other devices;
c. contain a heating system capable of
sustaining a healthful temperature (of approximately 70°) for a displaced
person, except in those areas where local climate conditions do not require
such a system;
d. be adequate in
size with respect to the number of rooms and area of living space needed to
accommodate the displaced person. There shall be a separate, well lighted and
ventilated bathroom that provides privacy to the user and contains a sink,
bathtub or shower stall, and a toilet, all in good working order and properly
connected to appropriate sources of water and to a sewage drainage system. In
the case of a housekeeping dwelling, there shall be a kitchen area that
contains a fully usable sink, properly connected to potable hot and cold water
and to a sewage drainage system, and adequate space and utility service
connections for a stove and refrigerator;
e. contain unobstructed egress to safe, open
space at ground level. If the replacement dwelling unit is on the second story
or above, with access directly from or through a common corridor, the common
corridor must have at least two means of egress;
f. for a displaced person who is handicapped,
be free of any barriers which would preclude reasonable ingress, egress, or use
of the dwelling by such displaced person.
Displaced Person-
a. General. The term displaced person means
any person who moves from the real property or moves his or her personal
property from the real property:
i. as a
direct result of a written notice of intent to acquire, the initiation of
negotiations for, or the acquisition of, such real property in whole or in part
for a project. This includes a person who does not meet the length of occupancy
requirements of Section 105, Subsection C or D of the Uniform Act;
ii. as a direct result of rehabilitation or
demolition for a project; or
iii.
as a direct result of a written notice of intent to acquire, or the
acquisition, rehabilitation or demolition of, in whole or in part, other real
property on which the person conducts a business or farm operation, for a
project. However, eligibility for such person under this Paragraph applies only
for purposes of obtaining relocation assistance advisory services under
§105. E 3, and moving expenses under §107 A, B, or C.
b.
Persons Not
Displaced- the following is a nonexclusive listing of persons who do
not qualify as displaced persons under this Part:
i. a person who moves before the initiation
of negotiations (see also §109. C 5), unless the department determines
that the person was displaced as a direct result of the program or
project;
ii. a person who initially
enters into occupancy of the property after the date of its acquisition for the
project;
iii. a person who has
occupied the property for the purpose of obtaining assistance under the Uniform
Act;
iv. a tenant-occupant of a
dwelling who has been notified on a timely basis that he or she will not be
displaced by the project, provided that:
(a).
the tenant is offered a reasonable opportunity to lease and occupy a suitable
decent, safe and sanitary dwelling in the same building or nearby building on
the real property;
(b). the terms
and conditions of continued occupancy are reasonable and set forth in a lease
which is offered to the tenant; and
(c). if the tenant is required to relocate
temporarily, the conditions of the temporary relocation shall be reasonable;
the tenant shall be reimbursed for the actual reasonable out-of-pocket expenses
incurred in connection with the temporary relocation, including moving costs
and any increased rent/utility costs; and the temporarily occupied dwelling
shall be decent, safe and sanitary;
v. an owner-occupant who moves as a result of
an acquisition that is not subject to the requirements of
§103 or as a result of the
rehabilitation or demolition of the real property. (However, the displacement
of a tenant as a direct result of any acquisition, rehabilitation or demolition
for a federal or federally-assisted project is subject to this
Part.);
vi. a person whom the
department determines is not as displaced as a direct result of a partial
acquisition;
vii. a person who,
after receiving a notice of relocation eligibility (described at §105.
C 2), is notified in writing that he or she will not be displaced for a
project. Such notice shall not be issued unless the person has not moved and
the department agrees to reimburse the person for any expenses incurred to
satisfy any binding contractual relocation obligations entered into after the
effective date of the notice of relocation eligibility;
viii. an owner-occupant who voluntarily sells
his or her property, as described at §103. A.1.a or c, after being
informed in writing that if a mutually satisfactory agreement of sale cannot be
reached, the department will not acquire the property. In such cases, however,
any resulting displacement of a tenant is subject to the regulations in this
Part;
ix. a person who retains the
right of use and occupancy of the real property for life following its
acquisition by the department;
x. a
person who retains the right of use and occupancy of the real property for a
fixed term after its acquisition by the Department of Interior under P.L.
93-477 or P.L. 93-303; or
xi. a
person who is determined to be in unlawful occupancy (see §101. B.7.b.v or a person who has been evicted for cause, under applicable law, prior to the
initiation of negotiations for the property.
Dwelling- the place of permanent or
customary and usual residence of a person, according to local custom or law,
including a single family house; a single family unit in a two-family,
multi-family, or multi-purpose property; a unit of a condominium or cooperative
housing project; a non-housekeeping unit; a mobile home; or any other
residential unit.
Farm Operation- any activity conducted
solely or primarily for the production of one or more agricultural products or
commodities, including timber, for sale or home use, and customarily producing
such products or commodities in sufficient quantity to be capable of
contributing materially to the operator's support.
Federal Financial Assistance- a grant, loan,
or contribution provided by the United States, except any federal guarantee or
insurance and any interest reduction payment to an individual in connection
with the purchase and occupancy of a residence by that individual.
Initiation of Negotiations- unless a
different action is specified in applicable federal program regulations, the
term initiation of negotiations means the following:
a. whenever the displacement
results from the acquisition of the real property by a federal agency or the
department, the initiation of negotiations means the delivery of the initial
written offer of just compensation by the department to the owner or the
owner's representative to purchase the real property for the project. However,
if the federal agency or department issues a notice of its intent to acquire
the real property, and a person moves after that notice, but before delivery of
the initial written purchase offer, the initiation of negotiations means the
actual move of the person from the property;
b. whenever the displacement is caused by
rehabilitation, demolition or privately undertaken acquisition of the real
property (and there is no related acquisition by a federal agency or a state
agency), the initiation of negotiations means the notice to the person that he
or she will be displaced by the project or, if there is no notice, the actual
move of the person from the property;
c. in the case of a permanent relocation to
protect the public health and welfare, under the Comprehensive Environmental
Response Compensation and Liability Act of 1980 ( P.L. 96-510, or Superfund)
the initiation of negotiations means the formal announcement of such relocation
or the federal or federally-coordinated health advisory where the federal
government later decides to conduct a permanent relocation.
Mortgage- such classes of liens as are
commonly given to secure advances on, or the unpaid purchase price of, real
property, under the laws of the state in which the real property is located,
together with the credit instruments, if any, secured thereby.
Nonprofit Organization- an organization that
is exempt from paying federal income taxes under
Section 501 of the Internal Revenue Code (26 U.S.C.
501).
Owner of a Dwelling- a person is considered
to have met the requirement to own a dwelling if the person purchases or holds
any of the following interests in real property:
a. fee title, a life estate, a 99-year lease,
or a lease including any options for extension with at least 50 years to run
from the date of acquisition; or
b.
an interest in a cooperative housing project which includes the right to occupy
a dwelling; or
c. a contract to
purchase any of the interests or estates described in §101. B 14.a or b;
or
d. any other interest, including
a partial interest, which in the judgment of the department warrants
consideration as ownership.
Person- any individual, family, partnership,
corporation, or association.
Project- any action or series of actions
undertaken by a federal agency or with federal financial assistance that are
designed primarily to further or complete an activity or program that will
benefit the public as a whole. It does not include an action or series of
actions undertaken by an individual or family with federal financial assistance
if such assistance is intended primarily to assist or benefit such individual
or family.
Salvage Value- the probable sale price of an
item, if offered for sale on the condition that it will be removed from the
property at the buyer's expense, allowing a reasonable period of time to find a
person buying with knowledge of the uses and purposes for which it is adaptable
and capable of being used, including separate use of serviceable components and
scrap when there is no reasonable prospect of sale except on that basis.
Small Business- a business having not more
than 500 employees working at the site being acquired or permanently displaced
by a program or project.
State- any of the several states of the
United States or the District of Columbia, the Commonwealth of Puerto Rico, any
territory or possession of the United States, the Trust Territories of the
Pacific Islands or a political subdivision of any of these
jurisdictions.
Tenant- a person who has the temporary use
and occupancy of real property owned by another.
Uneconomic Remnant- a parcel of real
property in which the owner is left with an interest after the partial
acquisition of the owner's property, and which the department has determined
has little or no value or utility to the owner.
Uniform Act- the Uniform Relocation
Assistance and Real Property Acquisition Policy Act of 1970 (84 Stat. 1894; 42 U.S.C. 4601 et seq.; P.L. 91-646), and amendments thereto.
Unlawful Occupancy- a person is considered
to be in unlawful occupancy when such person has been ordered to move by a
court of competent jurisdiction prior to the initiation of negotiations for the
acquisition of the occupied property. At the discretion of the department,
squatters who occupy real property without the permission of the owner may be
considered to be in unlawful occupancy. Technical violations of law and
unlitigated violations of the terms of a lease, such as having an unauthorized
pet or withholding rent because of improper building maintenance, do not render
a person's occupancy unlawful for purposes of this Section.
Utility Costs- expenses for heat, lights,
water and sewer.
Utility Facility- any electric, gas, water,
steam power, or materials transmission or distribution system; any
transportation system; any communications system, including cable television;
and any fixtures, equipment, or other property associated with the operation,
maintenance, or repair of any such system. A utility facility may be publicly,
privately, or cooperatively owned.
Utility Relocation- the adjustment of a
utility facility required by the program or project undertaken by the
department. It includes removing and reinstalling the facility, including
necessary temporary facilities; acquiring necessary right-of-way on new
location; moving, rearranging or changing the type of existing facilities; and
taking any necessary safety and protective measures. It shall also mean
constructing a replacement facility that has the functional equivalency of the
existing facility and is necessary for the continued operation of the utility
service, the project economy, or sequence of project construction.
H. Compliance with Other Laws and
Regulations. The implementation of this Part shall be in compliance with all
applicable laws and implementing regulations, including the following:
1. Section l of the Civil Rights Act of 1866
(42 U.S.C. 1982 et seq.);
2. Title
VI of the Civil Rights Act of 1964 (42
U.S.C. 2000d et seq.);
3. Title VIII of the Civil Rights Act of 1968
(42 U.S.C. 3601 et seq.), as amended;
4. The National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.);
5.Section 504 of the Rehabilitation Act of
1973 (29 U.S.C. 790 et seq.);
6.
Executive Order 12250- Leadership and Coordination of Non-Discrimination
Laws;
7. Executive Order 11063-
Equal Opportunity and Housing, as amended by Executive Order 12259;
8. Executive Order 11246- Equal Employment
Opportunity;
9. Executive Order
11625- Minority Business Enterprise;
10. Executive Order 12259- Leadership and
Coordination of Fair Housing in Federal Programs;
11. The Flood Disaster Protection Act of 1973
( P.L. 93-234);
12. Executive
Orders 11988- Floodplain Management, and 11990, Protection of
Wetlands;
13. The Age
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.).
J. Appeals
1. General. The department shall promptly
review appeals in accordance with the requirements of applicable law and this
Part.
2. Actions Which May Be
Appealed. Any aggrieved person may file a written appeal with the department in
any case in which the person believes that the department has failed to
properly consider the person's application for assistance under this Part. Such
assistance ma y include, but is not limited to, the person's eligibility for,
or the amount of, a payment required under §103. F or G, or a relocation
payment required under this Part. The department shall consider a written
appeal regardless of form.
3. Time
Limit for Initiating Appeal. The department may set a reasonable time limit for
a person to file an appeal. The time limit shall not be less than 60 days after
the person receives written notification of the department's determination on
the persons claim.
4. Right to
Representation. A person has a right to be represented by legal counsel or
other representative in connection with his or her appeal, but solely at the
person's own expense.
5. Review of
Files by Person Making Appeal. The department shall permit a person to inspect
and copy all materials pertinent to his or her appeal, except materials which
are classified as confidential by the department. The department may, however,
impose reasonable conditions on the person's right to inspect, consistent with
applicable laws.
6. Scope of Review
of Appeal. In deciding an appeal, the department shall consider all pertinent
justification and other material submitted by the person, and all other
available information that is needed to ensure a fair and full review of the
appeal.
7. Determination and
Notification after Appeal. Promptly after receipt of all information submitted
by a person in support of an appeal, the department shall make a written
determination on the appeal, including an explanation of the basis on which the
decision was made, and furnish the person a copy. If the full relief requested
is not granted, the department shall advise the person of his or her right to
seek judicial review.
8. Department
Official to Review Appeal. The department official conducting the review of the
appeal shall be either the head of the department or his or her authorized
designee. However, the official shall not have been directly involved in the
action appealed.
AUTHORITY NOTE:
Promulgated in accordance with
42
USC 4601 -
4655,
52 FR 45667, 49 CFR 1.48(dd), and
R.S.
38:3107.
