Right of Way: Meeting UDOT's Real Estate Needs
Acquisition Services - What We Do:
Article I, Section 22 of the Utah Constitution provides that "Private property shall not be taken or damaged for public use without just compensation." The Fifth Amendment of the United States Constitution provides "...nor shall private property be taken for public use, without just compensation."
The acquisition process faces inherently competing priorities and performance metrics must reflect this duality. On the one hand, the Utah and U.S. Constitutions (and related statutes) grant UDOT the authority to acquire private property for state transportation purposes, and the need for safe and efficient roads leads us to work to acquire necessary parcels as efficiently as possible to avoid construction delays and related costs. On the other hand, property rights recognized in the Utah and U.S. Constitutions must be respected by ensuring property is properly identified and appraised, and that landowners have an opportunity to negotiate a fair resolution of each acquisition.
The chart below shows the process we follow to ensure these competing interests are respected (but no chart can truly reflect all the different ways we try to work with property owners throughout this process to find fair resolutions that allow projects to proceed).
Stages of Acquisition
How We Measure Our Work:
Acquisition Services by the Numbers
Because UDOT is a construction innovation leader, the Right of Way Division has a lot of work to do.
The table to the right shows how many active projects in each Region we are currently working on (some projects have only a few parcels, while others have hundreds).
For prior Fiscal Years (i.e., July 1 to June 30), the following charts show the work of the Acquisition Services Team and allow you to see in which UDOT Regions that work is being done.
The total number of acquired parcels in the last fiscal year were:
The total dollars spent on acquiring parcels in the last fiscal year were*:
* Cost of parcels is based on the recording of the FINET disbursement.
* Data Source for the above parcel cost charts is the Right of Way database, and differs slightly from FINET (the financial system), for the same fiscal year. When a purchase is recorded in the database, and when the disbursement is recorded in FINET always differ. In all material aspects, however, the charts are accurate, and provide additional detail not available in the financial system.
Relocating businesses and households require extra time and resources. It also tells us when our projects are having one of the most profound impacts possible - someone has to move their residence or business to a new location. We strive to facilitate relocation as seamlessly as possible, and make sure projects know that more time and energy is required to make this happen the right way. While relocation rights are not protected by the Utah or Federal Constitutions, there are statutory and regulatory rules that must be followed, and we keep a close eye on whether any relocation appeals are filed to ensure we are doing things the right way.
Performance Measure: Eminent Domain.
The charts above show just how much work the Acquisition Services Team does to facilitate UDOT projects. But the way we do that work is also of critical importance. We have found that by measuring our use of the power of eminent domain to acquire parcels, we can ensure we are respecting the property owners whose rights are affected by our work, while also respecting the taxpayer resources that are being spent. When property owners are treated fairly, and the legal process for property acquisitions is followed, we can often acquire property without using the power of eminent domain. We also have appraisals that allow UDOT to ensure that the funds it spends are reasonable. Inevitably, there are some cases where disputes arise, or where additional information may be helpful to determine just compensation. In these cases, UDOT has the ability to seek occupancy and eventually acquire property by filing a lawsuit using the power of eminent domain.
When we successfully acquire parcels through negotiations in more than 90% of our acquisitions, we can have confidence that the quality of our acquisition work is top notch because we know that both property owners and the taxpayers are being respected. Thus, we measure the rate of successful negotiations and have set a performance goal of 90% or more. Of note, a 90% rate of successful negotiation does not mean 10% of our acquisitions were actually acquired after filing a lawsuit - our data shows eminent domain is used when the file is sent to the Utah Office of the Attorney General. However, many cases are resolved after the file is sent to our attorneys but before a suit is actually filed because we continue to work toward resolution throughout the process.
We also follow the cases where the power of eminent domain is invoked to see how they are resolved. Although we do not have a set performance goal in this regard, we work hard with our partners at the Utah Office of the Attorney General to resolve cases fairly as discovery proceeds and additional information is collected.
Eminent Domain: Property Types
One interesting fact about those cases that require the use of the power of eminent domain is the type of property typically involved in such matters. As the chart to the right shows, the overwhelming majority of eminent domain cases involve commercial property. This can be explained in a variety of ways. For example, there is far more public sales data for residential properties, making it easier to determine just compensation, while commercial sales are often not publicly disclosed, requiring more work to fairly and accurately determine just compensation. Commercial property also typically has far more nuanced issues affecting value than residential property. Location, square footage, and amenities are common valuation issues across property types, but add in varying traffic counts, landscaping/building setback requirements, the evolving nature of the retail marketplace, signs, parking requirements, and other factors and valuation in the commercial space can become more complicated. Understanding these challenges allows the Right of Way Division to devote time and energy to valuation issues that we know will take longer to resolve. This, in turn, facilitates a low eminent domain rate.
Innovation within the Right of Way Division: Right of Way Cleared with Limitations
In an ideal world, the Right of Way Division would obtain clearance on all required parcels prior to the planned advertisement of a new construction project. Sometimes, however, real-world issues (both inside and outside of the Right of Way Division) prevent this from happening.
To help facilitate advertising projects for construction before all of the right of way is cleared, the Right of Way Division will sometimes (if the conditions are right to have all parcels cleared before construction is set to begin) allow a project to be advertised with limitations. This process - which we believe is a unique innovation of UDOT - allows a project to be advertised early, facilitating much earlier construction because the Right of Way Division continues its work while the contract is advertised, and delivers cleared parcels in time for construction to proceed on schedule.
Performance Measure: Construction Days Gained
To measure the success of the "Cleared with Limitations" program, the Right of Way Divison first measures construction days gained - defined as the date between when a project is advertised and when a project is set to begin construction. This measure shows one of the many ways the Right of Way Division contributes to timely project delivery, which serves each of UDOT's Strategic Goals (i.e., Zero Fatalities, Optimize Mobility, and Preserve Infrastructure).
To ensure our "Cleared with Limitations" program does not create more problems than it solves, we also keep a close eye on whether we deliver projects on time to avoid construction delays. We have set a performance goal in this area of 80%. By keeping an eye on our success rate, we can be sure that we gain the upside of early project delivery, without incurring too much of the downside cost associated with project delays. Some tolerance for such delays has to be permitted, or the "Cleared with Limitations" program would have to be scrapped in the face of the inevitable complexity of acquiring private property. By meeting our performance goal, we have confidence that the upside gains far outweigh the downside risks because even if we cannot meet all limitations, projects are underway and will still be delivered before they could have been done otherwise.
And just because we miss a goal does not mean we incur costs. Instead, we study those projects closely to identify ways we can innovate and adjust schedules to keep projects on track while the Right of Way Division finishes its work.
Time Required to process acquisitions
The Department's projects range in size and scope. Projects that require the acquisition of many parcels often take more planning, resources, and time. The chart below shows the average time it takes from when the Acquisition Services Team starts its work until all parcels are cleared on a project based on the number of parcels involved. Not surprisingly, the larger the project, the longer it typically takes, but not always. This is a new measure we are studying to understand the variations that show across different project sizes.
Thank you for visiting the Right of Way Division's Dashboard for the Acquisition Services Team. Please be sure to visit Property Management Services Team Dashboard to see how the other part of our Division meets UDOT's real estate needs.
Important Data Disclaimer: The Department is continuously applying best efforts to improve program transparency and data quality. The data represented within this dashboard is derived directly from the Department’s various data management tools, which may contain errors or unintentional omissions (i.e., blank fields, outdated data, etc.). The Department retains the right to monitor, evaluate, adjust, modify, and correct any identified errors as they are encountered or discovered. At no time should this data be solely relied upon for decisions or actions of consequence without further direct consultation and verification of accuracy from a Department representative assigned administrative responsibility for such data.