Topic:
This article will discuss if and when an Agency can deviate from the requirements of the Uniform Act and 49 CFR, Part 24 through the use of waivers.
Discussion:
Since the Uniform Act (URA) is a law, it is not possible for an Agency to not follow, or deviate from, its provisions. For example, under Title III, Section 301(2) of the URA, the owner or owner’s designated representative has to be given the opportunity to accompany the appraiser during the inspection of the property. This requirement cannot be waived. (Owner accompaniment is not a requirement, however; if a "waiver valuation" is being used as it is not an appraisal.)
Unlike the URA provisions, which cannot be waived, the Federal Regulations do contain a waiver provision at 49 CFR § 24.7:
§24.7 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.
For example, there may be an elderly couple and their adult son living in a five-bedroom house. They are being displaced by a city transit project, which has federal funding. There are no five-bedroom comparable dwellings available, but there are four-bedroom houses with similar square footage. The URA’s definition of "comparable replacement dwelling" indicates that it must be adequate in size to accommodate the occupants, so a four-bedroom dwelling would be adequate and the four-bedroom comparable does not represent a reduction in assistance. The displacing Agency should ask the FTA for a waiver, using a written justification for not offering a five-bedroom comparable replacement dwelling.
Note: Some Agencies may not seek a waiver in the above described situation, since it may view the similar amount of square footage and larger rooms as a trade-off for the fifth bedroom. [49 CFR 24.2(a)(6)(i)] Other Agencies, however, may not consider a four bedroom dwelling comparable to a five bedroom and would seek the waiver as a precautionary action to preserve federal funding.
Another example could be a veterinary clinic with boarding kennels displaced by a highway widening in a rural area by a State DOT. There are no available existing replacement buildings that are suitable for the business. Usually reestablishment expenses cannot be used for the construction of a replacement site/building, however, under 49 CFR, 24.7 the DOT could request a waiver from FHWA.
Reestablishment expenses in excess of $10,000 and a fixed payment for a business in excess of $20,000 cannot be waived by the Federal funding Agency, since these amounts are limited by the URA. The search expense amount of $2,500, however, is established by regulation, so a waiver could be requested, if the displacing Agency justifies the higher amount as reasonable and necessary.
An Agency cannot request that a displaced person waive his relocation benefits:
§24.207(f) No waiver of relocation assistance.
A displacing Agency shall not propose or request that a displaced person waive his or her rights or entitlements to relocation assistance and benefits provided by the Uniform Act and this regulation.
A displaced person can refuse relocation assistance benefits or just not claim them, but the Agency should have documentation that the person was advised of the type of benefits available, including amounts of replacement housing payments and approximate amounts of moving and related expenses.
Source:
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Lisa Barnes, SR/WA, R/W-RAC |
| © O.R. Colan Associates |
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