N.M. Admin. Code § 17.4.2.22

Current through Register Vol. 36, No. 1, January 14, 2025

Section 17.4.2.22 - RIGHT-OF-WAY DISPOSITION

A. Replacement right-of-way: The Department and/or the FHWA may approve the acquisition of replacement right-of-way if the utility has the right of occupancy in its existing location because it holds the fee, an easement or other real property interest, and the damaging or taking is compensable in eminent domain, and is necessary to meet the requirements of the highway project. Such replacement right-of-way shall only be allowed where no change to the project for the utility's existing right-of-way, being transferred to the Department for highway purposes, is made.

(1) Any replacement right-of-way being paid for with state and/or federal funds shall be evaluated as to fair market value by a qualified and licensed New Mexico Real Estate Appraiser. A written evaluation/appraisal shall be accomplished and approved by the Department prior to acquisition.

(2) Acquisition of replacement right-of-way by the Department on behalf of the utility may be accomplished when it can be demonstrated by the utility that it is not staffed to accomplish the acquisition or consultant services are prohibitively expensive or unavailable. Acquisition by the Department should coincide with other Department acquisition functions, if at all possible, and shall be approved by the Right-of-Way Bureau Chief.

B. Joint use of right-of-way: When a utility occupies a utility corridor by virtue of an easement or other property interest, that is compensable under eminent domain laws, and the Department's highway project will envelop the utility corridor, the following regulation shall apply:

(1) If the utility's facilities are in physical conflict with proposed highway construction features, the utility may opt to vacate the Department's newly acquired right-of-way, obtain replacement right-of-way and relocate its facilities to the newly acquired utility corridor/easement. All eligible costs incurred by the utility in this situation are reimbursable when properly documented and supported.

(2) If the utility facilities do not conflict with proposed highway construction features and no relocation is necessary, they shall remain in place. When it becomes necessary to relocate the utility facilities, the Department shall reimburse the utility owner for all eligible expenses incurred for replacement right-of-way and relocation construction, if allowed under the terms of the permit. This one time future reimbursement obligation shall be documented by the issuance of a Joint Use Agreement, which defines future obligations of the Department to the utility. The Joint Use Agreement shall have no other purposes than those detailed herein, and shall not otherwise be issued by this Department.

(3) In the event a utility relocation is necessary and vacation of the existing utility corridor/right-of-way to replacement right-of-way is not a viable option, the utility may opt to relocate to another location within the newly acquired highway right-of-way if no conflict between the utility facilities and highway features exists. The costs for this utility relocation from utility right-of-way to highway right-of-way are reimbursable. Since this option has been granted for the benefit of the utility, at the utility's request, the Department will issue a New Mexico Highway Utility Accommodation Permit, after which time the utility owner shall be subject to the Permit provisions. This option does not deprive the utility owner of any land rights previously held, as the terms of the Permit grant the use of public right-of-way for a specific renewable time period. In the alternative, the utility may elect the option of locating completely outside highway right-of-way and under that option the utility would be eligible for relocation costs and replacement right-of-way costs.

N.M. Admin. Code § 17.4.2.22

3/10/71, 11/15/96; Recompiled 12/31/01