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September 2018
A Guide on
Utility Accommodation in
ROW &
Utility Easements
Dean M. Loy, Division Director
Division of Right of Way and Utilities
Jennifer McCleve, Branch Manager
Utilities and Rail Branch
Drafted for:
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TABLE OF CONTENTS .......................................................................................................... 2
1 Introduction
1.1 Purpose .................................................................................................................. 3
1.2 Overview ................................................................................................................. 3
1.3 Research ................................................................................................................. 5
2 Right Of Way (ROW)
2.1 ROW Purpose .......................................................................................................... 7
2.2 State & Federal Guidance ....................................................................................... 7
2.3 Kentucky Perspective ............................................................................................ 10
3 Easements in ROW
3.1 Easement Purpose ................................................................................................ 11
3.2 Kentucky Case Study ............................................................................................. 11
3.3 Kentucky Perspective ............................................................................................ 13
4 Replacement Utility Easements
4.1 Replacement Easement Purpose .......................................................................... 14
4.2 State & Federal Guidance ..................................................................................... 14
4.3 Other DOT Perspectives ........................................................................................ 15
4.4 Kentucky Perspective ............................................................................................ 24
5 Joint Utility Easements
5.1 Joint Utility Easement Purpose ............................................................................. 26
5.2 State & Federal Guidance ..................................................................................... 26
5.3 Other DOT Perspectives ........................................................................................ 27
5.4 Kentucky Perspective ............................................................................................ 36
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1 Introduction
1.1 Purpose
Rights-of-way and easements are both examples of property rights, and
can allow others the use a property. This guide defines how utility
relocations are accommodated into right of way and easements in
compliance with statute and regulation.
1.2 Overview
What is an Easement?
An easement is the right to use the real property of another for a specific
purpose; such as, drainage, utility facilities, construction, or
maintenance. An easement is a real property interest, but legal title to
the underlying land is retained by the original owner for all other
purposes. They are typically granted by will, by deed or by a contract.
An easement is created by the legal document which is expressed
either by grant or deed. Easement are created by one of three ways:
Easement by Express, Easement by Implication, or Easement by
Prescription.
• Express – Agreed by landowners granting or reserving
an easement (Generally by Deed)
• Implication – Are created only when two parcels of land were at
one time treated as a single tract or owned by a common owner.
Best example Appurtenant Easement
• Prescription – The use of an easement in a certain way for a
certain number of years. Kentucky the time period is 15 years
and falls under Adverse possession and must be proven.
Easements fall into two categories, affirmative and negative. An
affirmative easement is the most common and allows its holder to do
something on another individual's land, such as cross over it. Negative
easements prevent something from occurring on a person's land. For
example, a negative easement on your land could prevent you from
building a structure.
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What is Right of Way?
A right-of-way (ROW) allows others to travel through a property. It
provides access to anyone who may need to travel through the property.
It is broader than an easement because it does not apply to one specific
person or entity. The most common form of right of way easement is a
road.
KYTC Right of way in its truest sense is the land that a highway occupies.
It consists of the land owned by the operating agency or land that the
operating agency has a right to use for roadway purposes. The rights
required to support a roadway must include sufficient interest to provide
for both the construction and continued maintenance of the facility.
What state statutes address utility placement in easement or right of
way?
No Kentucky Revised Statute (KRS) directly addresses utility
accommodation in state ROW. However, KRS 177.035 and KRS 179.265
addresses the viability of reimbursement of relocations based upon
occupancy and utility company.
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What Federal regulations address utility placement in easement or
right of way?
Code of Federal Regulation addresses these matters to some degree as
cited in 23 CFR 645.111 Subpart A.
1.3 Research
The securing of necessary right of way and easement is a critical aspect
of effective project development. In fact, these acquisitions often can
be the critical path to project delivery. Therefore, a thorough
understanding of the means, mechanisms and standards is valuable.
The following steps were taken to documents these matters:
Utility Easements
Reimbursable?
Utility
Type
Ex Facilities on:
Relocating To:
Now?
Future?
Private
ROW
ROW
NO
NO
ROW
Easement
NO
YES
Other than ROW
ROW
YES
NO
Other than ROW
Easement
YES
YES
Public
ROW
ROW
YES
YES
ROW
Easement
YES
YES
Other than ROW
ROW
YES
YES
Other than ROW
Easement
YES
YES
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• State statute review
• Federal regulation review
• Kentucky Transportation Cabinet (KYTC) policy manual review
• Consultation of KYTC legal and permits staff
• Consultation of FHWA Kentucky Division Office
• Survey of nine (9) other state Departments of Transportation
• Consultation of other state subject matter experts via regional
summits held in 2018
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2 Right Of Way (ROW)
2.1 ROW Purpose
KYTC Right of way (ROW) in its truest sense is the land that a highway
occupies. It consists of the land owned by the operating agency or land
that the operating agency has a right to use for roadway purposes.
Acquired ROW allows others to travel through a property. It provides
access to anyone who may need to travel through the property.
For the purpose of this document, we are referring to the KYTC
acquisition of ROW for an upcoming road project. The project is
expected to impact one to many utility companies that may occupy the
existing ROW and/or are placed on ‘other than public ROW. ‘Other than
public ROW’ is reasonably defined as placement on a private easement
and/or fee simple property ownership.
2.2 State & Federal Guidance
There are several sources of data on the subject of utility incorporation
into public ROW. This guide considered both state statute, federal
regulation and guidance language provided by the American Association
of State Highway Transportation Officials (AASHTO). Excerpts from the
findings are included herein.
AASHTO guideline
When a State intends to permit utilities to use and occupy
public highway right-of-way, such potential use should be
a consideration in determining the extent and adequacy of
the right-of-way needed for the project. Failure to recognize
the impact of such use, as well as other uses on private property
located adjacent to the public highway right-of-way, may affect the
safe and efficient operations of the highway and may result in the
acquisition of right-of-way which is inadequate to meet the needs
of the highway and the traveling public. For example, little would
be gained by acquiring restricted right-of-way and denying its use
to certain utilities if these utilities could locate their facilities on
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private property adjacent to the restricted right-of-way with
substantially the same impact on the highway and its users.
Therefore, the issue of adequate accommodation of utilities is a
legitimate consideration in the development of highway projects.
This is particularly true of land service facilities where the highway
user and utility consumer tend to be one and the same.
The concept of considering potential utility uses in the
determination of right-of-way needs has been incorporated in §
645.209(a). A corresponding issue then becomes the use of
Federal-aid highway funds for the acquisition costs of the needed
right-of-way.
Utility use of highway right-of-way is not considered to be a use
for a highway purpose. Therefore, Federal-aid highway funds are
theoretically not eligible to participate in right-of-way acquired
solely for the purpose of accommodating utility facilities in excess
of that normally acquired in accordance with standard criteria and
procedures. Even so, when a State or locality routinely
dedicates or permits a portion of the road and street right-
of-way for use by utilities in accordance with established
standard criteria pursuant to State law, ordinance, or
administrative practice, such right-of-way may be
considered eligible for Federal-aid reimbursement as an
integral part of the project right-of-way.
23 CFR 645.111 Subpart A
(a) Federal participation may be approved for the cost of replacement
right of way provided:
(1) The utility has the right of occupancy in its existing
location…fee, an easement, or other real property interest.
(2) There will be no charge to the project for that portion of the
utility’s existing right of way being transferred to the TD for highway
purposes
(b) The utility shall determine and make a written valuation of the
replacement right of way that it acquires in order to justify amounts
paid for such right of way
(c) Acquisition of replacement right of way by the TD on behalf of a
utility or acquisition of non-operating real property from a utility shall
be in accordance with Uniform Relocation Assistance and real
Property Acquisition Policies Act
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(d) When the utility has the right of occupancy in its existing location
because it holds the fee, an easement, or another real property
interest and it is not necessary by reason of the highway construction
to adjust or replace the facilities located thereon, the taking of and
damage to the utility’s real property, including the disposal or
removal of such facilities may be considered a right of way
transaction
23 CFR 1.23
Defines FHWA's authority for allowing utility use and occupancy of
the right-of-way of Federal-aid and direct Federal highway
projects.
The State must acquire right-of-way that is adequate not only for
the construction of the highway facility but also for its operation
and maintenance.
Certain non-highway uses of the right-of-way are permitted which
are found to be in the public interest provided such uses do not
impair the highway or interfere with the free and safe flow of traffic
thereon. Such a public interest finding has been made for utilities.
There must be adequate space available to locate the utility
facilities in a manner that does not interfere with the safe
and efficient operations of the highway.
David Whitworth, Federal Highway Administration - Kentucky Division
FHWA would participate in the purchase of ROW for the purpose of
accommodating the utilities in accordance with 23 CFR Section
645.111(a)(1) when-
the acquisition is made in the interest of the project
economy, or
it is necessary to meet the requirements of the highway
project.
Since the KYTC routinely permits a portion of the road
(whenever possible) for use by utilities in accordance with
established criteria pursuant to law, such right of way may
be considered eligible for Federal-aid reimbursement as an
integral part of the project right-of-way.
Be sure the project team making the decision to acquire this right
of way appropriately documents the reasons why it is necessary
and why it is in the interest of the project economy.
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Making the utility find its own way around the project would delay
their movement...have an effect on the project economy as
materials, labor, and ROW costs will go up in that time.
It may not be feasible in all cases and so as stated before, it must
be looked at and documented carefully.
A Public Interest Finding is NOT necessary since no regulations are
being broken in allowing this participation.
2.3 Kentucky Perspective
Based upon the guidance available, including Kentucky statutes,
AASHTO guidance and Federal regulation, the proposed ROW
footprint should consider all existing features of the site, including
the existing utilities and their final placement. Therefore, it is
critical that the project team identify the impacted utilities and
approximate relocation needs prior to development of the
proposed ROW limits.
The ROW boundaries can and should consider existing
permitted utilities when:
• It is in the interest of the project economy, or
•
If it is necessary to meet the requirements of the
highway project.
The project team must document the decision
(Why it is in the interest of the project economy).
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3 Easements in ROW
3.1 Easement Purpose
An easement is the right to use the real property of another for a specific
purpose; such as, drainage, utility facilities, construction, or
maintenance. An easement is a real property interest, but legal title to
the underlying land is retained by the original owner for all other
purposes. They are typically granted by will, by deed or by a contract.
An easement is created by the legal document which is expressed
either by grant or deed.
For the purpose of this document section, we are referring to KYTC
agreeing to establish an easement within the bounds of public ROW for
an upcoming road project. The project is expected to impact one to
many utility companies that may occupy the existing ROW and/or are
placed on ‘other than public ROW. ‘Other than public ROW’ is
reasonably defined as placement on a private easement and/or fee
simple property ownership.
3.2 Kentucky Case Study
Texas Gas requested exclusive easement rights in public right of way
Requested placement in road right of way with a 30 foot wide
exclusivity.
Exclusivity would violate the provisions of KRS 416.140 which provides
that “any” listed utility may install facilities on right of way. Exclusivity
would contravene this statute…
OLS memorandum response
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MEMORANDUM
TO: Jennifer McCleve
FROM: Will Fogle, Attorney Office of Legal Services
DATE: November 1, 2017
SUBJECT: Utility Easement Rights
You have asked for a legal opinion on a request of a utility company to be
granted exclusive utility easement rights on public right of way. As an
initial matter, this concept is not advisable from a practical matter since it
would limit and restrict the future use of the affected property. Moreover,
in my opinion, such a grant would be inconsistent with provisions of KRS
416.140, which provides that “…any person authorized under the laws of
this state to conduct the business of supplying water, electricity, [etc]…may
construct and maintain transmission or distribution lines…” KRS
416.140(1). Thus, the grant of an exclusive utility easement to one utility
at the exclusion of all others would be in contraindication of this statute.
Thus, I would strongly advise that this request be denied.
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3.3 Kentucky Perspective
Based upon the guidance available, including Kentucky statutes,
and Office of Legal Service advice,
the grant of an exclusive utility
easement in public ROW to one utility at the exclusion of all others
would be in contraindication with Kentucky statute.
While KYTC can dedicate easement in public ROW,
KYTC should not grant an exclusive utility easement in
public ROW to one utility at the exclusion of others
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4 Replacement Utility Easements
4.1 Replacement Easement Purpose
An easement is the right to use the real property of another for a specific
purpose; such as, drainage, utility facilities, construction, or
maintenance. An easement is a real property interest, but legal title to
the underlying land is retained by the original owner for all other
purposes. They are typically granted by will, by deed or by a contract.
An easement is created by the legal document which is expressed
either by grant or deed.
For the purpose of this document section, we are referring to KYTC
acquiring or reimbursing for the acquisition of an easement for a specific
utility company. The project is expected to impact this utility company
that may occupy the existing ROW and/or are placed on ‘other than
public ROW. ‘Other than public ROW’ is reasonably defined as
placement on a private easement and/or fee simple property ownership.
4.2 State & Federal Guidance
23 CFR 645.111 Subp A
(a) Federal participation may be approved for the cost of replacement
right of way provided:
(1) The utility has the right of occupancy in its existing
location…fee, an easement, or other real property interest.
(2) There will be no charge to the project for that portion of the
utility’s existing right of way being transferred to the TD for
highway purposes
(b) The utility shall determine and make a written valuation of the
replacement right of way that it acquires in order to justify amounts paid
for such right of way
(c) Acquisition of replacement right of way by the TD on behalf of a
utility or acquisition of non-operating real property from a utility shall
be in accordance with Uniform Relocation Assistance and real Property
Acquisition Policies Act
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(d) When the utility has the right of occupancy in its existing location
because it holds the fee, an easement, or another real property interest
and it is not necessary by reason of the highway construction to adjust
or replace the facilities located thereon, the taking of and damage to the
utility’s real property, including the disposal or removal of such facilities
may be considered a right of way transaction
23 CFR 645.111 Subp A
Federal funds may be used for replacement easement for utilities
Either a state or a utility may purchase replacement easement for utility
relocations:
• If a state acquires replacement easement, the requirements of the
Uniform Act applies.
• If the utility acquires replacement easement, the Uniform Act does
not apply.
4.3 Other DOT Perspectives
State
Does your DOT purchase
utility
specific easements on
behalf of utility companies?
Does your DOT retain
the easement and
permit access to it as
opposed to easement
transferring to the
company occupying
it?
Does your DOT acquire
this easement to replace
existing easement only
DOT
Yes
No
Yes
No
Yes
No
Pennsylvania
Yes
No
Yes
Oregon
Yes Rarely
No
Yes
Virginia
Yes
Yes
Yes
Florida
Yes
No
Yes
West Virginia
No
No
Yes generally
Tennessee
No
N/A
N/A
Delaware
No
N/A
No
Alabama
No
No
No
Utah
Yes
No
No
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Maryland
Yes occasionally
No
Yes
State
Would your DOT be able to acquire a
utility specific easement if the company
had no easement (had no property right)
prior to relocation?
Is this considered a betterment if
the utility occupied no easement
(had no property right) prior to
relocation? It’
s not considered a
betterment.
DOT
Yes
No
Yes
No
Pennsylvania
No
Yes
Oregon
No
Yes
Virginia
No
Yes
Florida
No
West Virginia
No
No
Tennessee
N/A
N/A
Delaware
No
N/A
Alabama
No
Yes
Utah
Yes
Yes
Maryland
Not unless there was a
hwy need & esmt would
remain with the state
No
Detailed responses:
ALABAMA ROBERT LEE
We don’t buy easements for utilities, but we reimburse utilities for
buying their own replacement easements. There doesn’t seem to
be much difference between providing a utility corridor and setting
liberal ROW limits with utility accommodation in mind. We could
probably accommodate utilities on our ROW that were previously
on their own easement, but they would not want that. The main
reason that a utility wants to be on their own easement is to control
what happens on the easement. Otherwise, if the DOT is not
careful, a utility will be permitted on top of an existing utility. A
fiber optic line could be permitted atop a water or sewer
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line. When the water or sewer utility comes to perform
maintenance on their line, they will likely cut the f.o. line, because
it should not have been put atop the water or sewer line. An
easement also allows the utility to modify or expand their facilities
without the need for permit, etc.
Utility Specific Easements (acquisition of a utility easement that
can be used for a specific company relocation)
Does your DOT purchase utility specific easements on behalf of
utility companies? No. The Utility purchases replacement
easement & DOT reimburses.
Does your DOT retain the easement and permit access to it or does
the easement transfer to the company occupying it? Utility retains
ownership.
Does your DOT acquire this easement to replace existing easement
only? No. Utility acquires, but we reimburse them.
Would your DOT be able to acquire a utility specific easement if
the company had no easement (had no property right) prior to
relocation? No.
Is this considered a betterment if the utility occupied no easement
(had no property right) prior to relocation? Yes.
DELAWARE ERIC CIMO
Utility Specific Easements (acquisition of a utility easement that
can be used for a specific company relocation)
Does your DOT purchase utility specific easements on behalf of
utility companies? No. We always purchase on behalf of the State.
Though there have been a couple of instances where we purchased
an area to accommodate utility relocation then stripped off a
portion of the easement giving it back to the utility. Those were
specific areas to address transmission utility facilities and we were
granted permission to do this on specific projects under Delaware
Law due to circumstances surrounding the situation. This is not
something we typically do.
Does your DOT retain the easement and permit access to it or
does the easement transfer to the company occupying it? In the
cases where we stripped a portion off for the utility company, we
transferred that portion fully to the company occupying it.
Does your DOT acquire this easement to replace existing easement
only? We did in the case(s) mentioned above. However, we do not
typically do this. Typically, we require the company to relocate into
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our fee simple ROW or our State owned PE. If they want to remain
on private easement, they are responsible to obtain that on their
own.
Would your DOT be able to acquire a utility specific easement if
the company had no easement (had no property right) prior to
relocation? We would have to acquire it as a state owned PE and
it would be open for other companies to use and for DelDOT to
use.
Is this considered a betterment if the utility occupied no easement
(had no property right) prior to relocation? Not in the case I
described. For us it is no different than a new utility installation
within fee simple ROW.
FLORIDA THOMAS BANE
Utility Specific Easements (acquisition of a utility easement that
can be used for a specific company relocation)
Does your DOT purchase utility specific easements on behalf of
utility companies? FDOT would only purchase an easement when
we condemn existing utilities as FDOT expands the R/W.
Otherwise, FDOT would have the utility subordinate the easement
to FDOT.
Does your DOT retain the easement and permit access to it or
does the easement transfer to the company occupying it? Our
permits do not affect easements. The permit gives permission to
do work within FDOT R/W. So, even if they have an easement they
must get a permit to come into the R/W and work.
Does your DOT acquire this easement to replace existing easement
only? Yes.
Would your DOT be able to acquire a utility specific easement if
the company had no easement (had no property right) prior to
relocation? No.
Is this considered a betterment if the utility occupied no easement
(had no property right) prior to relocation? Purchasing an
easement would only be through condemnation where we have to
make the utility whole. So when we settle condemnation, the utility
is considered whole – not better or worse.
MARYLAND NELSON SMITH
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Utility Specific Easements (acquisition of a utility easement that
can be used for a specific company relocation)
Does your DOT purchase utility specific easements on behalf of
utility companies? We have acquired property for utility purposes.
Does your DOT retain the easement and permit access to it or
does the easement transfer to the company occupying it? Not
unless we are replacing a property that we are taking from the
utility for the highway.
Does your DOT acquire this easement to replace existing easement
only? Yes
Would your DOT be able to acquire a utility specific easement if
the company had no easement (had no property right) prior to
relocation? Maybe. If we had a highway need, but the property
would remain with the state.
Is this considered a betterment if the utility occupied no easement
(had no property right) prior to relocation? No.
TENNESSEE JOE SHAW
Utility Specific Easements (acquisition of a utility easement that
can be used for a specific company relocation)
Does your DOT purchase utility specific easements on behalf of
utility companies?
TN court instruction is such that under eminent domain, the state
can acquire ROW for highway purposes, and utility use is not
considered highway purpose. Opinion of the AG office that was
rendered many years ago and has not been reassessed recently.
Does your DOT retain the easement and permit access to it or
does the easement transfer to the company occupying it?
Not Applicable
Does your DOT acquire this easement to replace existing easement
only?
Not Applicable
Would your DOT be able to acquire a utility specific easement if
the company had no easement (had no property right) prior to
relocation?
Not Applicable
Is this considered a betterment if the utility occupied no easement
(had no property right) prior to relocation?
Not Applicable
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Note: Under Local Public Agency projects, the local agency often
acquires additional ROW for utility relocations adjacent to the
Project ROW, using local funds not project funds, as a prescribed
action of the local agency to acquire easements for the location of
local agency utilities.
This acquisition is often offered to utilities as a joint use to facilitate
utility relocation for the LPA project. Owned and administered by
the Local Public Agency which acquired it.
OREGON HEATHER HOWE
Utility Specific Easements (acquisition of a utility easement that
can be used for a specific company relocation)
Does your DOT purchase utility specific easements on behalf of
utility companies? On very rare occasions, but it is usually because
we are exchanging/swapping easements.
Does your DOT retain the easement and permit access to it or
does the easement transfer to the company occupying it?
Transfers to the company occupying it.
Does your DOT acquire this easement to replace existing easement
only? Yes
Would your DOT be able to acquire a utility specific easement if
the company had no easement (had no property right) prior to
relocation? No
Is this considered a betterment if the utility occupied no easement
(had no property right) prior to relocation? Yes
PENNSYLVANIA LARRY DITTY
Pennsylvania only reimburses a utility if they have a property right.
If they are located by permit they are considered non-
reimbursable.
Utility Specific Easements (acquisition of a utility easement that
can be used for a specific company relocation)
Does your DOT purchase utility specific easements on behalf of
utility companies? Yes, PennDOT purchases utility specific
easements when we overtake a utility’s private r/w and they have
a compensable real property interest. The utilities can also
purchase their own easements and we will reimburse them for it if
they have a compensable real property interest.
Does your DOT retain the easement and permit access to it or
does the easement transfer to the company occupying it? The
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easement transfer to the company occupying it. If we overtake
their r/w, they have a compensable real property interest and they
remain in the highway r/w, we will reserve their easement rights.
Does your DOT acquire this easement to replace existing easement
only? Yes
Would your DOT be able to acquire a utility specific easement if
the company had no easement (had no property right) prior to
relocation? No
Is this considered a betterment if the utility occupied no easement
(had no property right) prior to relocation? It’s not considered a
betterment. If they don’t have a property right, they will have to
purchase their own easement (if required).
UTAH ALANA SPENDLOVE
Check out our utility right of way matrix that I've attached to this
email. Hopefully it helps you understand our process when it
comes to utility easements. We have regulations (
Utah Admin Rule
R930-8-7. Replacement of Property Rights) that gives us the
authority to purchase replacement easements on behalf of utility
owners. To date, we have not purchased a joint use easement as
no utility has requested them; only public utility easements.
Public Utility Easements are typically connected to subdivision
plats. UDOT can replace these PUEs and can then turn over the
ownership of the easement back to the city/subdivision. These
easements are only for public utilities.
If we were to do a joint use easement I believe it would be in the
name of one utility company with the provision that others (such
as gas and electrical) could also occupy that space.
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VIRGINIA MATT REYNOLDS
Utility Specific Easements (acquisition of a utility easement that
can be used for a specific company relocation)
Does your DOT purchase utility specific easements on behalf of
utility companies? Yes only as a replacement of an existing
easement
Does your DOT retain the easement and permit access to it or
does the easement transfer to the company occupying it? VDOT
retains. *Pursuant to an explicit state law.
Does your DOT acquire this easement to replace existing easement
only? Yes
Would your DOT be able to acquire a utility specific easement if
the company had no easement (had no property right) prior to
relocation? Not as a policy.
Is this considered a betterment if the utility occupied no easement
(had no property right) prior to relocation? It would be if done
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WEST VIRGINIA ANTHONY CAROVILLANO
General Utility Easements (acquisition of a utility easement that
can be used by multiple companies, perhaps called ‘Joint Use’?)
Does your DOT purchase joint use easements? Recent Legislation
has given the DOT authority to purchase Utility Corridors for joint
use. I’m currently working on the implementation of this
legislation so I don’t have any results to share.
Does your DOT regulate (permit) access to them? (If so, is it
written authority?) If we purchase/establish a Utility Corridor then
all utilities, current and future, will be required to locate in the
corridor. We will charge the companies a lease to occupy the
corridor but any future moves will be the DOT’s financial
responsibility
Does your DOT retain the easement and permit access to it or
does the easement transfer to one of the companies occupying it?
We will retain ownership of the corridor
Does your DOT permit a utility to occupy it when they had no
easement (had no property right) prior to relocation? Yes
If so, how do you track whom is reimbursable and whom is not if
impacted in the future? We haven’t thought that far out but I’m
looking at building an interactive map/database to help us track
our leases and permits
Is this a betterment if the utility occupied no easement (had no
property right) prior to relocation? No, it hasn’t been in the past
Utility Specific Easements (acquisition of a utility easement that
can be used for a specific company relocation)
Does your DOT purchase utility specific easements on behalf of
utility companies? No but we will reimburse a public utility (Public
Service District & Municipalities) for acquisition costs
Does your DOT retain the easement and permit access to it or
does the easement transfer to the company occupying it? The
easement will stay with the company
Does your DOT acquire this easement to replace existing easement
only? Generally but there have been times in which a public utility
has elected to move out of our R/W into an acquired easement
Would your DOT be able to acquire a utility specific easement if
the company had no easement (had no property right) prior to
24
relocation? We would reimburse a public utility but we would not
acquire for them
Is this considered a betterment if the utility occupied no easement
(had no property right) prior to relocation? No, it hasn’t been in
the past
4.4 Kentucky Perspective
Utility Specific Easements (Kentucky)
Are we acquiring and transferring them to the utility?
We do sometimes acquire easement for a utility but not
transferring them to our knowledge. These transfers would
need to go through the Division of Right of Way and Utilities
and be signed by the Governor.
If not, should we be?
Yes
Is this a betterment if the utility occupied no easement prior to
relocation?
Defer to OLS and other DOT assessments but it appears to
be a betterment.
If so, can Federal funds be used to acquire it?
Not when it is betterment.
25
*Cannot improve their property right position. That is betterment
and not eligible for Federal reimbursement.
Based upon the guidance available, including Kentucky statutes,
and surveyed state DOTs,
the DOT acquisition a utility easement is
typically restricted to replacement easements only. These
easements are to be transferred to the utility owner.
Utility Easements
Reimbursable?
Utility
Type
Ex Facilities on:
Relocating To:
Now?
Future?
Private
ROW
ROW
NO
NO
ROW
Easement
NO
YES*
Other than ROW
ROW
YES
NO
Other than ROW
Easement
YES
YES
Public
ROW
ROW
YES
YES
ROW
Easement
YES
YES
Other than ROW
ROW
YES
YES
Other than ROW
Easement
YES
YES
Utility specific easements:
• Can be acquired only to replace an existing easement.
• Must be specific to a utility company.
• KYTC must transfer the easement to the utility if KYTC
acquires it.
26
5 Joint Utility Easements
5.1 Joint Utility Easement Purpose
An easement is the right to use the real property of another for a specific
purpose; such as, drainage, utility facilities, construction, or
maintenance. An easement is a real property interest, but legal title to
the underlying land is retained by the original owner for all other
purposes. They are typically granted by will, by deed or by a contract.
An easement is created by the legal document which is expressed
either by grant or deed.
For the purpose of this document section, we are referring to KYTC
acquiring or reimbursing for the acquisition of an easement for multiple
utility companies to use. The project is expected to impact these utility
companies that may occupy the existing ROW and/or are placed on
‘other than public ROW. ‘Other than public ROW’ is reasonably defined
as placement on a private easement and/or fee simple property
ownership.
5.2 State & Federal Guidance
See section 4.2 State & Federal Guidance’ as there are no specific and
additional guidance on joint use utility easements.
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5.3 Other DOT Perspectives
State
Does your DOT purchase
joint use easements?
Does your DOT regulate
(permit) access to
them? (If so, is it
written authority?)
Does your DOT retain the
easement and permit access
to it as opposed to easement
transferring to one of the
companies occupying it?
DOT
Yes
No
Yes
No
Yes
No
Pennsylvania
No
No
No
Oregon
No
No
No
Virginia
Yes
Yes
Yes
Florida
No
No
No
West Virginia
New legislation
allows
Yes uts lease
access
Yes
Tennessee
No
No
N/A
Delaware
Yes
Yes regulate
not permit
Yes
Alabama
No
N/A
N/A
Utah
No
N/A
N/A
Maryland
Yes occasionlly
Yes
Yes
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State
Does your DOT
permit a utility to
occupy it when they
had no easement
(had no property
right) prior to
relocation?
If so, how do you track whom
is reimbursable and whom is
not if impacted in the future?
Is this a betterment if the
utility occupied no easement
(had no property right) prior
to relocation?
DOT
Yes
No
Text
N/A
Yes
No
Pennsylvania
No
N/A
N/A
Oregon
No
N/A
N/A
Virginia
Yes
VDOT requires a copy
of recorded easments
to demonstrate
reimbursable. Joint
Use easement use is
not reimbursable
unless it overlaps an
easement in the
company's name.
No
Florida
No
N/A
N/A
West Virginia
Yes
DOT considering a
tracking database to
help
No
Tennessee
N/A
N/A
N/A
Delaware
Yes
The utility provides
evidence of property
right.
No
Alabama
N/A
N/A
N/A
Utah
N/A
N/A
N/A
Maryland
Yes
Prior rights is tracked
through Office of
Real Estate
No
Detailed responses:
ALABAMA ROBERT LEE
Does your DOT purchase joint use easements? No.
Does your DOT regulate (permit) access to them? (If so, is it
written authority?) N/A
Does your DOT retain the easement and permit access to it or
does the easement transfer to one of the companies occupying
it? N/A
29
Does your DOT permit a utility to occupy it when they had no
easement (had no property right) prior to relocation? N/A
If so, how do you track whom is reimbursable and whom is not if
impacted in the future? N/A
Is this a betterment if the utility occupied no easement (had no
property right) prior to relocation? N/A
DELAWARE ERIC CIMO
Does your DOT purchase joint use easements? We will purchase
either fee simple ROW and have the utilities come into it or we
will acquire permanent easements (PE) in the State’s name.
These PE’s work just like fee simple ROW and the utilities are
able to install within them…I might be able to get you our
sample/form easement language that sets the stage for allowing
utilities.
Does your DOT regulate (permit) access to them? (If so, is it
written authority?) Yes, we regulate the area. We coordinate and
oversee the installations if happening as a result of a capital
project but we do not require permits. Permits are only required
for installations that occur outside of our capital project limits
and that are not a direct result of an impact of the capital project
design/construction.
Does your DOT retain the easement and permit access to it or
does the easement transfer to one of the companies occupying
it? We typically retain the easement and permit access/use.
However, we have had a few cases where we purchased an area
to accommodate utility relocation then stripped off a portion of
the easement giving it back to the utility.
Does your DOT permit a utility to occupy it when they had no
easement (had no property right) prior to relocation? Yes, a
utility can occupy a DelDOT PE or fee simple ROW when they had
no easement prior to relocation.
If so, how do you track whom is reimbursable and whom is not if
impacted in the future? The company has to provide us with
easement documents or other prior rights documentation
30
showing they had a compensable interest prior to our project. We
prepare and execute various agreements depending on the
situation to assist in documenting the path forward and tracking
how future impacts will be handled.
Is this a betterment if the utility occupied no easement (had no
property right) prior to relocation? Not for us. The betterment
really comes in if they are running brand new or upgrading their
facilities. Many times, companies are in our fee simple ROW
before our project. Through the real estate negotiations, it is
determined that is it easier to obtain a PE as opposed to fee
simple ROW so that is how our designers and real estate team
moves forward. Though this is not ideal, we end up placing
relocated utilities into these PE’s without there being betterment
to the facilities. We tend to use PE’s purchased through our
projects no differently than fee simple ROW.
FLORIDA THOMAS BANE
Does your DOT purchase joint use easements? FDOT would only
purchase an easement when we condemn existing utilities as
FDOT expands the R/W. Otherwise, FDOT would have the utility
subordinate the easement to FDOT. Or, just permit the utility
within the R/W.
Does your DOT regulate (permit) access to them? (If so, is it
written authority?) Our permits do not affect easements. The
permit gives permission to do work within FDOT R/W. So, even if
they have an easement they must get a permit to come into the
R/W and work.
Does your DOT retain the easement and permit access to it or
does the easement transfer to one of the companies occupying
it? FDOT does not hold easements in the FDOT R/W. FDOT holds
fee title to all R/W except over federal lands such as national
parks or military bases. If a utility has an easement within the
R/W, they retain the easement but subordinate certain right to
FDOT.
Does your DOT permit a utility to occupy it when they had no
easement (had no property right) prior to relocation? FDOT’s
31
permit does not convey any property rights to the utility. Nor
does FDOT grant easements to utilities.
If so, how do you track whom is reimbursable and whom is not if
impacted in the future? FDOT does not have to track them. FDOT
reimburses all utilities located on the Federal Interstate System
regardless of property rights. Off the Federal Interstate System
we only reimburse if they have a an easement or when the utility
has a subordination agreement that says they are reimbursable.
It’s up the utility to demonstrate this.
Is this a betterment if the utility occupied no easement (had no
property right) prior to relocation? Purchasing an easement
would only be through condemnation where we have to make the
utility whole. So when we settle condemnation, the utility is
considered whole – not better or worse.
MARYLAND NELSON SMITH
General Utility Easements (acquisition of a utility easement that
can be used by multiple companies, perhaps called ‘Joint Use’?)
Does your DOT purchase joint use easements? We have on a
case by case basis.
Does your DOT regulate (permit) access to them? (If so, is it
written authority?) Yes
Does your DOT retain the easement and permit access to it or
does the easement transfer to one of the companies occupying
it? The state retains the underlying property interest. Transfers
are only if we are replacing an easement/property right.
Does your DOT permit a utility to occupy it when they had no
easement (had no property right) prior to relocation? Yes
If so, how do you track whom is reimbursable and whom is not if
impacted in the future? We have a prior rights process through
our Office of Real Estate
Is this a betterment if the utility occupied no easement (had no
property right) prior to relocation? No
32
OREGON HEATHER HOWE
Oregon only reimburses a utility if they have a property right. If
they are located by permit they are considered non-
reimbursable.
General Utility Easements (acquisition of a utility easement that
can be used by multiple companies, perhaps called ‘Joint Use’?)
Does your DOT purchase joint use easements? NO
Does your DOT regulate (permit) access to them? (If so, is it
written authority?) NO
Does your DOT retain the easement and permit access to it or
does the easement transfer to one of the companies occupying
it? NO
Does your DOT permit a utility to occupy it when they had no
easement (had no property right) prior to relocation? NO
If so, how do you track whom is reimbursable and whom is not if
impacted in the future?
Is this a betterment if the utility occupied no easement (had no
property right) prior to relocation?
PENNSYLVANIA LARRY DITTY
Pennsylvania only reimburses a utility if they have a property
right. If they are located by permit they are considered non-
reimbursable.
General Utility Easements (acquisition of a utility easement that
can be used by multiple companies, perhaps called ‘Joint Use’?)
Does your DOT purchase joint use easements? No
Does your DOT regulate (permit) access to them? (If so, is it
written authority?)
33
Does your DOT retain the easement and permit access to it or
does the easement transfer to one of the companies occupying
it?
Does your DOT permit a utility to occupy it when they had no
easement (had no property right) prior to relocation?
If so, how do you track whom is reimbursable and whom is not if
impacted in the future?
Is this a betterment if the utility occupied no easement (had no
property right) prior to relocation?
TENNESSEE JOE SHAW
General Utility Easements (acquisition of a utility easement that
can be used by multiple companies, perhaps called ‘Joint Use’?)
Does your DOT purchase joint use easements?
TN court instruction is such that under eminent domain, the state
can acquire ROW for highway purposes, and utility use is not
considered highway purpose. Opinion of the AG office that was
rendered many years ago and has not been reassessed recently.
Does your DOT regulate (permit) access to them? (If so, is it
written authority?)
TnDOT regulates State ROW. There is no designation of “utility
strip/easement” in state ROW.
Does your DOT retain the easement and permit access to it or
does the easement transfer to one of the companies occupying
it?
Not Applicable
Does your DOT permit a utility to occupy it when they had no
easement (had no property right) prior to relocation?
Not Applicable
If so, how do you track whom is reimbursable and whom is not if
impacted in the future?
Not Applicable
34
Is this a betterment if the utility occupied no easement (had no
property right) prior to relocation?
Not Applicable
Note: Under Local Public Agency projects, the local agency often
acquires additional ROW for utility relocations adjacent to the
Project ROW, using local funds not project funds, as a prescribed
action of the local agency to acquire easements for the location
of local agency utilities.
This acquisition is often offered to utilities as a joint use to
facilitate utility relocation for the LPA project. Owned and
administered by the Local Public Agency which acquired it.
UTAH ALANA SPENDLOVE
To date, we have not purchased a joint use easement as no
utility has requested them; only public utility easements.
Public Utility Easements are typically connected to subdivision
plats. UDOT can replace these PUEs and can then turn over the
ownership of the easement back to the city/subdivision. These
easements are only for public utilities. I'm not an expert on ROW
but if we were to do a joint use easement I believe it would be in
the name of one utility company with the provision that others
(such as gas and electrical) could also occupy that space.
VIRGINIA MATT REYNOLDS
We do purchase "Joint Use VDOT Utility Easements" to permit
utilities into that do not have an existing land right (easement)
but have to be relocated for the project outside of
existing/proposed right of way to be clear for construction
activities. These also can overlap company named easements we
purchase only when replacing and existing recorded easements.
This has been going well and have not experienced any
significant issues and the practice has been accepted by the
utility owners.
Does your DOT purchase joint use easements? Yes
Does your DOT regulate (permit) access to them? (If so, is it
written authority?) Yes through our Land Use Permitting System
Does your DOT retain the easement and permit access to it or
does the easement transfer to one of the companies occupying
35
it? VDOT retains unless it is overlapping with an easement in a
company's name that is being replaced for the project/parcel
Does your DOT permit a utility to occupy it when they had no
easement (had no property right) prior to relocation? Yes
If so, how do you track whom is reimbursable and whom is not if
impacted in the future? If the easement is in VDOT's name they
do not have a future reimbursable right unless they overlap with
an easement in the utilities name or acquire the right later from
the landowner. VDOT requires a copy of a recorded easement to
demonstrate a reimbursable right.
Is this a betterment if the utility occupied no easement (had no
property right) prior to relocation? No, since the easement land
right is retained by VDOT
WEST VIRGINIA ANTHONY CAROVILLANO
Does your DOT purchase joint use easements? Recent Legislation
has given the DOT authority to purchase Utility Corridors for joint
use. I’m currently working on the implementation of this
legislation so I don’t have any results to share.
Does your DOT regulate (permit) access to them? (If so, is it
written authority?) If we purchase/establish a Utility Corridor
then all utilities, current and future, will be required to locate in
the corridor. We will charge the companies a lease to occupy the
corridor but any future moves will be the DOT’s financial
responsibility
Does your DOT retain the easement and permit access to it or
does the easement transfer to one of the companies occupying
it? We will retain ownership of the corridor
Does your DOT permit a utility to occupy it when they had no
easement (had no property right) prior to relocation? Yes
If so, how do you track whom is reimbursable and whom is not if
impacted in the future? We haven’t thought that far out but I’m
looking at building an interactive map/database to help us track
our leases and permits
Is this a betterment if the utility occupied no easement (had no
property right) prior to relocation? No, it hasn’t been in the past
Utility Specific Easements (acquisition of a utility easement that
can be used for a specific company relocation)
36
Does your DOT purchase utility specific easements on behalf of
utility companies? No but we will reimburse a public utility (Public
Service District & Municipalities) for acquisition costs
Does your DOT retain the easement and permit access to it or
does the easement transfer to the company occupying it? The
easement will stay with the company
Does your DOT acquire this easement to replace existing
easement only? Generally but there have been times in which a
public utility has elected to move out of our R/W into an acquired
easement
Would your DOT be able to acquire a utility specific easement if
the company had no easement (had no property right) prior to
relocation? We would reimburse a public utility but we would not
acquire for them
Is this considered a betterment if the utility occupied no
easement (had no property right) prior to relocation? No, it
hasn’t been in the past
5.4 Kentucky Perspective
Does KYTC have authority to regulate (permit) access to
them? (Written authority?)
No we do not.
We should limit access with the easement description
Transfer to the utility owner
Does KYTC wish to own and permit access to them?
No we have no interest in maintaining these easements.
Is this a betterment if the utility occupied no easement
prior to relocation?
Defer to OLS and other DOT assessments
If so, can Federal funds be used to acquire it?
N/A
37
*Cannot improve their property right position. That is betterment
and not eligible for Federal reimbursement.
Based upon the guidance available, including Kentucky statutes, and
surveyed state DOTs, the DOT acquisition of a joint utility easement
is uncommon and for those states whom use them, they have policy,
law and a regulating body to execute them. Most states do not use
and/or acquire joint use easements.
Those that do have law, policy and a regulation and permit process.
Utility Easements
Reimbursable?
Utility
Type
Ex Facilities on:
Relocating To:
Now?
Future?
Private
ROW
ROW
NO
NO
ROW
Easement
NO
YES*
Other than ROW
ROW
YES
NO
Other than ROW
Easement
YES
YES
Public
ROW
ROW
YES
YES
ROW
Easement
YES
YES
Other than ROW
ROW
YES
YES
Other than ROW
Easement
YES
YES
38
Since KYTC has none of these, specific conditions are needed:
Joint Use Utility easements:
Use for specific groups of utility companies
Those companies have replacement easement
rights
The easement should be described for those
facility types.
The easement should be conveyed to owner
utility(ies).
