La. Admin. Code tit. 70 § XVII-115

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

Section XVII-115 - Additional Information

A. General

1. Definition of Comparable Replacement Dwelling

a. The requirement in §101. B.4.f that a comparable replacement dwelling be functionally equivalent to the displacement dwelling means that it must perform the same function, provide the same utility, and be capable of contributing to a comparable style of living as the displacement dwelling. While it need not possess every feature of the displacement dwelling, the principal features must be present.

b. For example, if the displacement dwelling contains a pantry and a similar dwelling is not available, a replacement dwelling with ample kitchen cupboards may be acceptable. Insulated and heated space in a garage might prove an adequate substitute for basement workshop space. A dining area may substitute for a separate dining room. Under some circumstances, attic space could substitute for basement space for storage purposes, and vice versa. Only in unusual circumstances may a comparable replacement dwelling contain fewer rooms or consequentially less living space than the displacement dwelling. Such may be the case when a decent, safe, and sanitary replacement dwelling (which by definition is adequate to accommodate the displaced person) may be found to be functionally equivalent to a larger but very run-down substandard displacement dwelling.

c.Section 101. B.4.g requires that a comparable replacement dwelling for a person who is not receiving assistance under any government housing program before displacement must be currently available on the private market without any subsidy under a government housing program.

d. A public housing unit may qualify as a comparable replacement dwelling only for a person displaced from a public housing unit; a privately-owned dwelling with a housing program subsidy tied to the unit may qualify as a comparable replacement dwelling only for a person displaced from a similarly subsidized unit or public housing; a housing program subsidy to a person (not tied to the building), such as a HUD Section 8 Existing Housing Program Certificate or a Housing Voucher, may be reflected in an offer of a comparable replacement dwelling to a person receiving a similar subsidy or occupying a privately-owned subsidized unit or public housing unit before displacement.

e. However, nothing in this Part prohibits the department from offering, or precludes a person from accepting, assistance under a government housing program, even if the person did not receive similar assistance before displacement. However, the department is obligated to inform the person of his or her options under this Part. (If a person accepts assistance under a government housing program, the rental assistance payment under §109. B would be computed on the basis of the person's actual out-of-pocket cost for the replacement housing.)

2. Persons Not Displaced. Section 101. B.7.b iv, recognizes that there are circumstances where the acquisition of real property takes place without the intent or necessity that an occupant of the property be displaced. Because such occupants are not considered displaced persons under this Part, great care must be exercised to ensure that they are treated fairly and equitably. For example, if the tenant-occupant of a dwelling will not be displaced, but is required to relocate temporarily in connection with the project, the temporarily-occupied housing must be decent, safe and sanitary and the tenant must be reimbursed for all reasonable out-of-pocket expenses incurred in connection with the temporary relocation, including moving expenses and increased housing costs during the temporary relocation. It is also noted that any person who disagrees with the department's determination that he or she is not a displaced person under this Part may file an appeal in accordance with §101 J

3. Initiation of Negotiations. This Section of the Part provides a special definition for acquisitions and displacements under Pub. L. 96-510 or Superfund. These activities differ under Superfund in that relocation may precede acquisition, the reverse of the normal sequence. Superfund is a program designed to clean up hazardous waste sites. When such a site is discovered, it may be necessary, in certain limited circumstances, to alert the public to the danger and to the advisability of moving immediately. If a decision is made later to permanently relocate such persons, those who had moved earlier would no longer be on site when a formal, written offer to acquire the property was made and thus would lose their eligibility for a replacement housing payment. In order to prevent this unfair outcome, we have provided a definition which is based on the public health advisory or announcement of permanent relocation.

4. No Duplication of Payments. This section prohibits the department from making a payment to a person under these regulations that would duplicate another payment the person receives under federal, state, or local law. The department is not required to conduct an exhaustive search for such other payments; it is only required to avoid creating a duplication based on the department's knowledge at the time a payment under these regulations is computed.

5. Reports. This Paragraph allows federal agencies to require the submission of a report on activities under the Uniform Act no more frequently than once every three years. The report, if required, will cover activities during the federal fiscal year immediately prior to the submission date. In order to minimize the administrative burden on agencies implementing this Part, a basic report form (see §117) has been developed which, with only minor modifications, would be used in all federal and federally-assisted programs or projects.

B. Real Property Acquisition

1. Less-than-Full-Fee Interest in Real Property. This provision provides a benchmark beyond which the requirements of the Section clearly apply to leases. However, the department may apply the regulations to any less-than-full-fee acquisition which is short of 50 years but which in its judgment should be covered.

2. Establishment of Offer of Just Compensation. The initial offer to the property owner may not be less than the amount of the department's approved appraisal, but may exceed that amount if the department determines that a greater amount reflects just compensation for the property.

3. Basic Negotiation Procedures. It is intended that an offer to an owner be adequately presented, and that the owner be properly informed. Personal, face-to-face contact should take place, if feasible, but this Section is not intended to require such contact in all cases.

4. Administrative Settlement

a. This Section provides guidance on administrative settlement as an alternative to judicial resolution of a difference of opinion on the value of a property, in order to avoid unnecessary litigation and congestion in the courts.

b. All relevant facts and circumstances should be considered by the department official delegated this authority. Appraisers, including reviewing appraisers, must not be pressured to adjust their estimate of value for the purpose of justifying such settlements. Such action would invalidate the appraisal process.

5. Payment before Taking Possession. It is intended that a right-of-entry for construction purposes be obtained only in the exceptional case, such as an emergency project, when there is no time to make an appraisal and purchase offer and the property owner is agreeable to the process.

6. Fair Rental. Section 301(6) of the Uniform Act limits what the department may charge when a former owner or previous occupant of a property is permitted to rent the property for a short term or when occupancy is subject to termination by the department on short notice. Such rent may not "exceed the fair rental value...to a short-term occupier." The department's right to terminate occupancy on short notice (whether or not the renter also has that right) supports the establishment of a lesser rental than might be found in a longer, fixed-term situation.

7. Standards of Appraisal. In §103. C.1 c, it is intended that all relevant and reliable approaches to value be utilized. However, where the department determines that the market approach will be adequate by itself because of the type of property being appraised and the availability of sales data, it may limit the appraisal assignment to the market approach.

8. Influence of the Project on Just Compensation

a. As used in this Section, the term project is intended to mean an undertaking which is planned, designed, and intended to operate as a unit.

b. Because of the public knowledge of the proposed project, property values may be affected. A property owner should not be penalized because of a decrease in value caused by the proposed project nor reap a windfall at public expense because of increased value created by the proposed project.

9. Conflict of Interest. The overall objective is to minimize the risk of fraud and mismanagement and to promote public confidence in federal and federally-assisted land acquisition practices. Recognizing that the costs may outweigh the benefits in some circumstances, §103. C.5 provides that the same person, may both appraise and negotiate an acquisition, if the value is $2,500 or less. However, it should be noted that all appraisals must be reviewed in accordance with §103. D This includes appraisals of real property valued at $2,500, or less.

10. Review of Appraisals

a. This Section recognizes that agencies differ in the authority delegated to the review appraiser. In some cases the reviewer establishes the amount of the offer to the owner and in other cases the reviewer makes a recommendation which is acted on at a higher level. It is also within department discretion to decide whether a second review is needed if the first review appraiser establishes a value different from that in the appraisal report or reports on a property.

b. Before acceptance of an appraisal, the review appraiser must determine that the appraiser's documentation, including valuation data and the analyses of that data, demonstrates the soundness of the appraiser's opinion of value. The qualifications of the review appraiser and the level of explanation of the basis for the reviewer's recommended or approved value depend on the complexity of the appraisal problem. For a low value property requiring an uncomplicated valuation process, the reviewer's approval, endorsing the appraiser's report, may satisfy the requirement for the reviewer's statement.

11. Expenses Incidental to Transfer of Title to the Department. Generally, the department is able to pay such incidental costs directly and, where feasible, is required to do so. In order to prevent the property owner from making unnecessary out-of-pocket expenditures and to avoid duplication of expenses, the property owner should be informed early in the acquisition process of the department's intent to make such arrangements. In addition, it is emphasized that such expenses must be reasonable and necessary.

C. General Relocation Requirements

1. Availability of Comparable Replacement Dwelling Before Displacement. This provision requires that no one may be required to move from a dwelling without one comparable replacement dwelling having been made available. In addition, §105. D.1 requires that, where possible, three or more comparable replacement dwellings shall be made available. Thus the basic standard for the number of referrals required under this Section is three. Only in situations where three comparable replacement dwellings are not available (e.g., when the local housing market does not contain three comparable dwellings) may the department make fewer than three referrals.

2. Relocation Assistance Advisory Services. Section 105. E.3.b ii.(c) is intended to emphasize that if the comparable replacement dwellings are located in areas of minority concentration, minority persons should, if possible, also be given opportunities to relocate to replacement dwellings not located in such areas.

3. Eviction for Cause. Basic eligibility for assistance is established on the basis of facts existing as of the date of the initiation of negotiations. Once the department has determined that a person has satisfied such requirements, there is no basis for changing that determination.

4. General Requirements-Claims for Relocation Payments. Section 105. G.1 allows the department to make a payment for low cost or uncomplicated moves without additional documentation, as long as the payment is limited to the amount of the lowest acceptable bid or estimate, as provided for in §107. C 3

D. Payment for Moving and Related Expenses. Discretionary Utility Relocation Payments. Section 107. G 3, describes the issues which must be agreed to between the department and the utility facility owner in determining the amount of the relocation payment. To facilitate and aid in reaching such agreement, the practices in the Federal Highway Administration regulation, 23 CFR 645, Subpart A, Utility Relocations, Adjustments and Reimbursement, should be followed.

E. Replacement Housing Payments

1. Replacement Housing Payment for 180-Day Homeowner-Occupants

a. The provision in §109. A.3.d iii to use the current fair market value for residential use does not mean the department must have an appraisal made. Any reasonable method at arriving at the fair market value may be used.

b. The provision in §109. A.4 set forth the factors to be used in computing the payment that will be required to reduce a person's replacement mortgage (added to the downpayment) to an amount which can be amortized at the same monthly payment for principal and interest over the same period of time as the remaining term on the displacement mortgages.

c. In any case where the person elects to obtain a replacement mortgage of a lesser amount than the one computed in the buydown determination, then the amount computed as the buydown payment must be adjusted to reflect the change in mortgage amount. This can be done through proration by dividing the amount of the actual replacement mortgage by the computed eligible replacement mortgage amount. This calculation provides a percentage factor which can then be applied to the computed buydown amount resulting in an adjusted increased mortgage interest payment.

2. Replacement Housing Payment for 90-Day Occupants

a. The downpayment assistance provisions in §109. B.3 are intended to limit such assistance to the amount of the computed rental assistance payment for a tenant or an eligible homeowner. It does, however, provide the latitude for department discretion in offering downpayment assistance which exceeds the computed rental assistance payment, up to the $5,250 statutory maximum. This does not mean, however, that such department discretion may be exercised in a selective or indiscriminate fashion. The department should develop a policy which affords equal treatment for persons in like circumstances and this policy should be applied uniformly throughout the department's programs or projects.

b. For purposes of this Section, the term downpayment means the downpayment ordinarily required to obtain conventional loan financing for the decent, safe, and sanitary dwelling actually purchased and occupied. However, if the downpayment actually required of a displaced person for the purchase of the replacement dwelling exceeds the amount ordinarily required, the amount of the downpayment may be the amount which the department determines is necessary.

3. Basic Rights of Persons to be Displaced. This Paragraph affirms the right of a 180-day homeowner-occupant, who is eligible for a replacement housing payment under §109 A, to a reasonable opportunity to purchase a comparable replacement dwelling. However, it should be read in conjunction with the definition of owner of a dwelling at §101. B 14. The department is not required to provide persons owning only a fractional interest in the displacement dwelling a greater level of assistance to purchase a replacement dwelling than the department would be required to provide such persons if they owned fee simple title to the displacement dwelling. If such assistance is not sufficient to buy a replacement dwelling, the department may provide additional purchase assistance or rental assistance.

4. Methods of Providing Replacement Housing

a. The use of cost effective means of providing replacement housing is implied throughout the Section. The term reasonable cost is used here to underline the fact that while innovative means to provide housing are encouraged, they should be cost-effective.

b.Section 109. D.3 b, permits the use of last resort housing, in special cases, which may vary from the usual standards of comparability. However, it should be specially noted that such variation should never result in a lowering of housing standards nor should it ever result in a lower quality of living style for the displaced person. The physical characteristics of the replacement dwelling may be dissimilar to those of the displacement dwelling but they may never be inferior.

c. One example might be the use of a new mobile home to replace a very substandard conventional dwelling in an area where comparable conventional dwellings are not available.

d. Another example could be the use of a superior, but smaller decent, safe and sanitary dwelling to replace a large, old substandard dwelling, only a portion of which is being used as living quarters by the occupants and no other large comparable dwellings are available in the area.

F. Mobile Homes. Replacement Housing Payment for 180-day Mobile Homeowner-Occupants. A 180-day owner-occupant who is displaced from a mobile home on a rented site may be eligible for a replacement housing payment for a dwelling computed under §109. A and a replacement housing payment for a site computed under §109. B. A 180-day owner-occupant of both the mobile home and the site, who relocates the mobile home, may be eligible for a replacement housing payment under §109. A to assist in the purchase of a replacement site or, under §109. B to assist in renting a replacement site.

La. Admin. Code tit. 70, § XVII-115

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

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