La. Admin. Code tit. 70 § XVII-101

Current through Register Vol. 50, No. 11, November 20, 2024

Section XVII-101 - General

A. Purpose. The purpose of this Part is to promulgate rules to implement the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (42 U.S.C. 4601 et seq.), in accordance with the following objectives:

1. to ensure that owners of real property to be acquired for federal and federally-assisted projects and state projects are treated fairly and consistently, to encourage and expedite acquisition by agreements with such owners, to minimize litigation and relieve congestion in the courts, and to promote public confidence in federal and federally -assisted and state land acquisition programs; and

2. to ensure that persons displaced as a direct result of federal or federally-assisted or state projects are treated fairly, consistently, and equitably so that such persons will not suffer disproportionate injuries as a result of projects designed for the benefit of the public as a whole; and

3. to ensure that agencies implement these regulations in a manner that is efficient and cost effective.

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.

C. No Duplication of Payments. No person shall receive any payment under this Part if that person receives a payment under federal, state, or local law which is determined by the department to have the same purpose and effect as such payment under this Part (see §115. A 4

D. Assurances, Monitoring and Corrective Action

1. Assurances

a. Before a federal agency may approve any grant to, or contract or agreement with, the department under which federal financial assistance will be made available for a project which results in real property acquisition or displacement that is subject to the Uniform Act [ Public Law 91 -646 (1971)], the department must provide appropriate assurances that it will comply with the Uniform Act and this Part. The department's assurances regarding displacements shall be in accordance with Section 210 of the Uniform Act. The department's assurances regarding acquisition shall be in accordance with Section 305 of the Uniform Act and must contain specific reference to any state law which the department believes provides an exception to Sections 301 of the Uniform Act. If, in the judgment of the federal agency, Uniform Act compliance will be served, the department may provide these assurances at one time to cover all subsequent federally-assisted programs or projects. The department may combine its Section 210 and Section 305 assurances in one document.

b. If a federal agency or the department provides federal financial assistance to a person causing displacement, such federal agency or the department is responsible for ensuring compliance with the requirements of this Part, notwithstanding the person's contractual obligation to the grantee to comply.

c. As an alternative to the assurance requirement described in §101. B.1 a, a federal agency may provide federal financial assistance to the department after it has accepted a certification by the department in accordance with the requirements in §113 of this Part.

2. Monitoring and Corrective Action. The federal agency will monitor compliance with this Part, and the department shall take whatever corrective action is necessary to comply with the Uniform Act and this Part. The federal agency may also apply sanctions in accordance with applicable program regulations (also see §113 C)

3. Prevention of Fraud, Waste, and Mismanagement. The department shall take appropriate measures to carry out this Part in a manner that minimizes fraud, waste, and mismanagement.

E. Manner of Notices. Each notice which the department is required to provide to a property owner or occupant under this Part, except the notice described at §103. B 2, shall be personally served or sent by certified or registered first-class mail, return receipt requested, and documented in department files. Each notice shall be written in plain, understandable language. Persons who are unable to read and understand the notice must be provided with appropriate translation and counseling. Each notice shall indicate the name and telephone number of a person who may be contacted for answers to questions or other needed help.

F. Administration of Jointly-Funded Projects. Whenever two or more federal agencies provide financial assistance to an agency or agencies, other than a federal agency, to carry out functionally or geographically related activities which will result in the acquisition of property or the displacement of a person, the federal agencies may by agreement designate one such agency as the cognizant federal agency. In the unlikely event that agreement among the agencies cannot be reached as to which agency shall be the cognizant federal agency, then the lead agency shall designate one of such agencies to assume the cognizant role. At a minimum, the agreement shall set forth the federally-assisted activities which are subject to its terms and cite any policies and procedures, in addition to this Part, that are applicable to the activities under the agreement. Under the agreement, the cognizant federal agency shall assure that the project is in compliance with the provisions of the Uniform Act and this Part. All federally-assisted activities under the agreement shall be deemed a project for the purposes of this Part.

G . Federal Agency Waiver of Regulations. The federal agency funding the project may waive any requirement in this Part not required by law if it determines that the waiver does not reduce any assistance or protection provided to an owner or displaced person under this Part. Any request for a waiver shall be justified on a case-by-case basis.

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.).

I. Recordkeeping and Reports

1. Records. The department shall maintain adequate records of its acquisition and displacement activities in sufficient detail to demonstrate compliance with this Part. These records shall be retained for at least three years after each owner of a property and each person displaced from the property receives the final payment to which he or she is entitled under this Part.

2. Confidentiality of Records. Records maintained by the department in accordance with this Part are confidential regarding their use as public information, unless applicable law provides otherwise.

3. Reports. The department shall submit a report of its real property acquisition and displacement activities under this Part if required by the federal agency funding the project. A report will not be required more frequently than every three years, or as the Uniform Act provides, unless the federal funding agency shows good cause. The report shall be prepared and submitted in the format contained in §117

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.

La. Admin. Code tit. 70, § XVII-101

Promulgated by the Department of Transportation and Development, Office of Real Estate, LR 19:507 (April 1993).

AUTHORITY NOTE: Promulgated in accordance with 42 USC 4601 - 4655, 52 FR 45667, 49 CFR 1.48(dd), and R.S. 38:3107.