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Right of Way
Right of Way - Introduction

Why Must My Property Be Taken?

Who will contact me and how soon must I move?

Closing and Negotiations

Official Right of Way Documents

Right of Way - Introduction:
In 1956, the United States Congress established the Interstate system of highways. This was created as a continuing effort to provide construction of modern highways for the motoring public. As a result of the highway program, many of our citizens were relocated and many more must still relocate to new homes and to new business locations.

Congress recognized the burden placed on those people who have had to relocate and in 1962 established a national policy which permitted the state highway departments to offer assistance on a formal basis and to help pay the costs of moving which before were borne solely by the relocatees themselves. In response to this offer, our Legislature established relocation assistance and a moving cost reimbursement program to be administered by the West Virginia Department of Transportation, Division of Highways. Since that time, the Division of Highways has assisted, as well as reimbursed moving costs, many hundreds of people who have moved to make way for all Federal-aid highways.

On January 2, 1971, Congress passed, and the President signed, the "Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970" which increased the amount of payments and replacement benefits. This act and its amendments establishes a uniform policy for the fair and equitable treatment of persons relocated as a result of Federal and federally assisted programs so that they will not suffer disproportionate injuries as a result of programs designed for the benefit of the general public.

The act provides a program of advisory assistance, moving cost payments and replacement housing payments to every eligible relocatee. It also assures that there will be available, for each residential relocatee, replacement housing which is decent, safe and sanitary and within the means of his income. All replacement housing must be fair housing - open to all persons regardless of race, color, religion, sex or national origin and must be offered to every relocatee.

The Department of Transportation, Division of Highways, since 1962, has fully supported the relocation program. Evidence of this support may be found in the fact that recently West Virginia has been a national leader in the number of payments made to relocatees. It is our intention to remain in a position of leadership by offering the best possible assistance and by expeditious handling of the payments due our citizens who move to permit our highway program to continue at its rapid pace.
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Why Must My Property Be Taken?
Many factors are critically analyzed in locating and designing a modern highway. The element of need is the first consideration. Necessity is established by a thorough study of existing roads and both present and estimated future traffic volumes. Traffic studies are basic in the design of the pavement and roadway and determining whether two, four, six or more traffic lanes are required.

The specific location of the highway is chosen only after a detailed study of each alternate route. Before a final location is chosen, consideration is given to the following factors:

The probable effect on the people in the area

Environmental impact

Construction costs

Property costs

Benefits to the highway user

Right of way property is the land required for constructing, maintaining and operating a highway properly.

Does the State have the right to take my property?

Yes; however, Article 3, Section 9 of the Constitution of West Virginia provides that private property shall not be taken or damaged for public use without just compensation.

Thus, constitutional provisions guarantee that necessary public improvements can be built and so located that they will render maximum benefits and also that affected property owners will be fully compensated.

What will I be paid for my property?

If your entire property is required, you will be paid the fair market value of the entire property. West Virginia law defines "market value" as the price a willing buyer would pay a willing seller, acting neither under compulsion or duress, both exercising prudence and intelligent judgment as to its value and familiar with the purpose for which the property is reasonably available.

If only a part of your property is required, you will be paid the fair market value of the part taken, plus damages, if any, to the residue, less all benefits.

Fair market value will be determined by a competent, professional real estate appraiser after a thorough inspection of your property, a comparison with similar properties in the area that have been sold recently, a determination and consideration of its replacement cost and depreciation and consideration of the income-producing potential. Only men and women of the highest integrity, qualified by education, training and experience, are used as appraisers.

All appraisals are office-reviewed, then rechecked in the field by experience, qualified reviewing appraisers for accuracy and to make certain that no items of allowable value have been overlooked or omitted.

Since the Division of Highways has adopted a firm price policy, you will be offered the full amount of the approved appraisal. There will be no attempt to buy your property at less than its fair market value. This policy guarantees that you receive the full value of your property and also that all citizens of the state receive full value for monies expended for highway rights of way.
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Who will contact me and how soon must I move?
A Right of Way Agent of the Division of Highways will call on you to discuss the purchase of your property. You will find this agent to be competent, well informed, courteous and, above all, helpful. Actually, the agent's responsibility is of a dual nature, as service must be rendered to the individual property owner as well as to the Division of Highways.

The agent is well versed in the basic highway design and plan reading and, consequently, is able to inform you fully about the effect highway construction will have on your property.

Based on the knowledge and understanding of the appraisal of real estate, the Right of Way Agent is able to explain the offer made by the Division of Highways for your property. A thorough knowledge of the laws and procedures governing the acquisition of private property enables the agent to explain your rights and responsibilities as well as those of the Division of Highways.

The Right of Way Agent's instructions are to help you, the property owner, in every possible proper way.

Preparatory to initiation of negotiations, the appraiser(s) and review appraiser will call to inspect your property. Other representatives of the Division of Highways will call on you to collect information for use in determining the needs of those who will be required to move.

Will I be able to move my buildings?

Although most owners prefer that the Division of Highways purchase all structures located within the right of way limits, it is possible to retain possession of your home or other buildings and make arrangements to have them relocated. This will result in a reduction of the amount of the offer by the Division of Highways. Consideration must be given to the size, age and condition of the buildings and availability of suitable sites, in addition to the cost of moving the structure(s) to be retained. The Right of Way Agent assigned to your property will advise you of the procedure and will be able to assist you in making the proper decision.

How soon must I move?

Every effort will be make to provide ample time for you to relocate. On or after the initiation of negotiations for the parcel, the relocatee is given a written notice, which specifies that he/she will not be required to move before 90 days from the date of the notice. This notice informs the relocatee that he/she will be given a 30-day written notice specifying the date by which he/she must vacate the property. In the event the property is tenant-occupied, notices are given to both the tenant and the owner. Extension beyond 30 days must be granted in writing.

CAUTION: You should make no commitment regarding relocation until you have been advised of eligibility requirements of the program by a relocation representative. Failure to do this may result in the loss of certain benefits and payments.

Will I receive any assistance in finding a suitable place to move?

Yes. A representative of the Relocation Services Section of the District Right of Way Office will call on you after initiation of negotiations to offer appropriate assistance. Should you desire assistance prior to that time, you may call the proper District Right of Way Office and a relocation representative will consult with you.

Representatives of this section assist in finding suitable replacement housing and business locations for all that must move because of highway construction. Guidance is provided in making claims for moving costs reimbursement and replacement housing payments when applicable.

Listing of available properties for sale and for rent, names and addresses of lending agencies and rental agencies, information of federal, state and local regulations and programs and other information which may be helpful to you will be offered through the District Right of Way Relocation Services Section.
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Closing and Negotiations
Approximately 45 days after you sign an option to sell your property to the Division of Highways, a state warrant will be issued. Thereafter the Division of Highways will be represented by a closing attorney who will meet with you and your attorney, if you are represented by one, at your convenience. The closing procedures are similar to those employed in most real estate transfers.

Releases and receipts of or for outstanding liens and/or encumbrances such as deeds of trust, taxes, judgement or leases must be obtained prior to or at the time of closing.

The Division of Highways will prepare the deed and have it recorded at no cost to you. Should the transfer of your property to the Division require payment by you of any of the following expenses, you may claim reimbursement:

Other recording fees and similar expenses incidental to the conveyance of such property

Penalty costs for prepayment of any preexisting recorded mortgage (deed of trust) entered into in good faith encumbering your real property

The pro rata portion (on a calendar year basis) of real property taxes paid, which are allocable to a period subsequent to the date of vesting title in the Division of Highways or the effective date of possession of such real property by the Division of Highways, whichever is earlier.

In a negotiated settlement, you will not be required to vacate the property until payment has been tendered in accordance with the terms of the option unless you have agreed in writing to do otherwise.

Must I accept the offer of the Division of Highways for my property?

No. If you believe the offer of the Division of Highways is inadequate, you have the right to refuse the amount offered. However, on most projects more than 90 percent of the parcels are acquired through negotiations based upon fair market value as determined by appraisers.

What will happen if I find this offer unacceptable?

Both you, the property owner, and the Division of Highways are protected by the Constitution of West Virginia, which provides that:

"Private property shall not be taken or damaged for public use, without just compensation..." and that "when required by either of the parties, such compensation shall be ascertained by an impartial jury of twelve freeholders."
If the Division of Highways must acquire your property in order to construct the proposed highway, West Virginia law provides that the Division can institute condemnation proceedings if the offer is found unacceptable. This procedure involves the following steps:

The Division of Highways files a petition in Circuit Court describing the property and identifying as defendants all persons who have an interest in such property.

Five commissioners, from a list of 13 local freeholders nominated by the court, are selected by the owner and Division of Highways to view the property and hear evidence, which either the owner or the Division wishes to submit.

The commissioners are required to file with the court their findings of just compensation for the property taken and damage to the residue, if any, less all benefits.

Within 10 days after the commissioners file their report, either the owner or the Division may file exceptions and demand a trial by jury.

Advancement of Compensation

In the event it is necessary to institute condemnation proceedings to acquire your property, the Division of Highways will deposit with the Clerk of the Circuit Court an amount equal to the Division's approved appraisal.

The property owner can arrange to withdraw such amount for his/her immediate use according to his/her interest in the property.

The following booklets may als be helpful. Click here to view the booklets in pdf format.


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