Administrative Code

Virginia Administrative Code

Part I. General Provisions and Administration of Program

24VAC30-41-10. General.

In order to acquire the rights of way necessary for the construction, reconstruction, alteration, maintenance and repair of the public highways of the Commonwealth, it is often necessary for individuals, families, businesses, farms, and nonprofit organizations to be displaced. A comprehensive program of services and benefits has been established to ensure, to the maximum extent possible, the timely and successful relocation of displacees and reestablishment of businesses. These regulations guide the administration of the relocation program in a manner that is equitable, consistent, and cost effective. They will ensure effective relocation services, and will provide moving reimbursement, replacement housing payments and other cost reimbursements so that individuals displaced will not suffer disproportionate injuries as a result of the Virginia Department of Transportation's (VDOT's) highway improvement program.

Statutory Authority

§ 25.1-402 of the Code of Virginia; 42 USC § 4601 et seq.

Historical Notes

Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

24VAC30-41-20. Applicability.

The provisions of this chapter are applicable to any person who is displaced by any project on which state or federal funds are or will be utilized. This includes persons displaced from rights of way acquired by any city, county or town where right of way is to be furnished as a required contribution incidental to a state or federal assisted highway project.

Statutory Authority

§ 25.1-402 of the Code of Virginia; 42 USC § 4601 et seq.

Historical Notes

Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

24VAC30-41-30. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Business" means any lawful activity, except a farm operation, that is conducted:

1. Primarily for the sale of services to the public;

2. Primarily for the purchase, sale, lease, rental or any combination of these, of personal or real property, or both, or for the manufacture, processing, or marketing of products, commodities, or any other personal property;

3. Primarily for outdoor advertising display purposes, when the display must be moved as a result of the project; or

4. By a nonprofit organization that has established its nonprofit status under applicable federal or state law.

"Comparable replacement housing" means a dwelling that is:

1. Decent, safe and sanitary (defined below).

2. Functionally equivalent to the displacement dwelling in that it performs the same function and provides the same utility. While every feature of a displacement dwelling need not be present, the principal features must be provided. Functional equivalency reflects the range of purposes for which the various physical features of a building may be used. Special consideration will be given to the number of rooms, and area of living space. VDOT may consider reasonable trade offs for specific features when the replacement unit is equal to or better than the displacement dwelling.

3. Adequate in size to accommodate the displacee.

4. In a location generally not less desirable than the displacement dwelling with respect to public utilities, commercial and public facilities, and is reasonably accessible to the displacee's place of employment.

5. On a site typical in size for residential use, with normal site improvements. (The site need not include features such as swimming pools or outbuildings.)

6. Currently available to the displaced person on the private market. However, a publicly owned or assisted unit may be comparable for a person displaced from the same type of unit. In such cases, any requirements of the public housing assistant program relating to the size of the replacement dwelling shall apply.

7. Within financial means of the displaced person.

Comparable replacement housing is the standard for replacement housing that VDOT is obligated to make available to displaced persons. It also is the standard for establishing owner and rental purchase supplement benefits.

"Contributes materially" means that during the two taxable years prior to the taxable year in which displacement occurs, or during such other period as VDOT determines to be more equitable, a business or farm operation:

1. Had average annual gross receipts of at least $5,000;

2. Had average annual net earnings of at least $1,000; or

3. Contributed at least 33-1/3% of the owner's or operator's average annual gross income from all sources.

If the application of the above criteria creates an inequity or hardship in any given case, VDOT may approve the use of other criteria as determined appropriate.

"Decent, safe and sanitary housing" means that a dwelling:

1. Meets local housing and occupancy codes, is structurally sound, weather tight and in good repair;

2. Has a safe electrical wiring system adequate for lighting and appliances;

3. Contains a heating system capable of maintaining a healthful temperature;

4. Is adequate in size with respect to the number of rooms and area of living space needed to accommodate the displaced household;

5. Has a separate, well-lighted and ventilated bathroom that provides privacy to the user and contains sink, toilet, and bathing facilities (shower or bath, or both), all operational and connected to a functional water and sewer disposal system;

6. Provides unobstructed egress to safe open space at ground level; and

7. Is free of barriers to egress, ingress and use by a displacee who is disabled.

This is the qualitative and safety standard to which displacees must relocate in order to qualify for replacement housing payment benefits provided by VDOT. Decent, safe and sanitary is also an element in the definition of comparable replacement housing defined above.

"Displaced person" means any person who moves from real property or moves personal property from real property as a direct result of the initiation of negotiations for the acquisition of the property; the acquisition of the real property, in whole or in part, for a project; as a direct result of rehabilitation or demolition for a project; or as a direct result of a written notice of intent to acquire, or the acquisition, rehabilitation or demolition of, in whole or in part, other real property on which the person conducts a business or farm operation, for a project. If the move occurs after a written order to vacate is issued, the occupant is considered a displaced person even though the property is not acquired.

Persons who do not qualify as a displaced person under these regulations include:

1. A person who moves before the initiation of negotiations, unless VDOT determines that the person was displaced as a direct result of the project;

2. A person who initially enters into occupancy of the property after the date of its acquisition for the project;

3. A person who is not required to relocate permanently as a direct result of a project. VDOT, after weighing the facts, shall make such determination on a case-by-case basis;

4. A person who has occupied the property for the purpose of obtaining assistance under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and amendments (42 USC § 4601 et seq.);

5. A person who, after receiving a notice of relocation eligibility, is notified in writing that it would not be necessary to relocate. Such notice shall not be issued unless the person has not moved and VDOT agrees to reimburse the person for any expenses incurred to satisfy any binding contractual relocation obligations entered into after the effective date of the notice of relocation eligibility;

6. A person whom VDOT determines is not displaced as a direct result of a partial acquisition;

7. A person who is determined by VDOT to be in unlawful occupancy or a person who has been evicted for cause, under applicable law, prior to the initiation of negotiations for the property; or

8. A person determined to be not lawfully present in the United States.

Only parties designated as "displaced persons" are eligible for relocation benefits.

"Dwelling" means the place of permanent or customary and usual residence of a person, according to local custom or law, including a single family house, a single family unit in a two-family, multi-family, or multi-purpose property; a unit of a condominium or cooperative housing project; a nonhousekeeping unit; a mobile home; or any other residential unit.

"Dwelling site" means land area that is typical in size for dwellings located in the same neighborhood or rural area.

"Family" means two or more individuals, one of whom is the head of a household plus all other individuals, regardless of blood or legal ties, who live with and are considered part of the family unit. Where two or more individuals occupy the same dwelling with no identifiable head of household, they shall be treated as one family for replacement housing payment purposes.

"Farm operation" means any activity conducted solely or primarily for the production of one or more agricultural products or commodities, including timber, for sale or home use, and customarily producing such products or commodities in sufficient quantity to be capable of contributing materially to the operator's support.

"Financial means" of the displaced person means:

1. A replacement dwelling purchased by a homeowner in occupancy at the displacement dwelling for at least 90 days prior to initiation of negotiations (90-day homeowner) is considered to be within the homeowner's financial means if the homeowner will receive the full price differential, all increased mortgage interest costs and all eligible incidental expenses.

2. A replacement dwelling rented by an eligible displaced person is considered to be within their financial means if, after receiving rental assistance under this part, the person's monthly rent and estimated average monthly utility costs for the replacement dwelling do not exceed the person's base monthly rental for the displacement dwelling.

3. For a displaced person who is not eligible to receive a replacement housing payment because of the person's failure to meet length-of-occupancy requirements, comparable replacement rental housing is considered to be within the person's financial means if VDOT pays that portion of the monthly housing costs of a replacement dwelling that exceeds the person's base monthly rent for the displacement dwelling. Such rental assistance must be paid under last resort housing.

"Increased interest payment" means the amount that will reduce the mortgage balance on a new mortgage to an amount that will be amortized with the same monthly payment for principal and interest as that for the mortgage on the displacement dwelling.

"Nonprofit organization" means an organization that is incorporated under the applicable laws of a state as a nonprofit organization and exempt from paying federal income taxes under § 501 of the Internal Revenue Code (26 USC § 501).

"Owner" means any person who purchases or holds any of the following interests in real property:

1. Fee title, a life estate, a land contract, a 99-year lease, or a lease including any options for extension with at least 50 years to run from the date of acquisition;

2. An interest in a cooperative housing project that includes the right to occupy a dwelling; or

3. A contract to purchase any of the interests or estates described in the preceding two descriptions of interests in real property.

"Person" means any individual, family, partnership, corporation or association.

"Purchase supplement" means the amount that, when added to the acquisition value, equals the cost of comparable replacement housing.

"Rent supplement" means the amount that equals 42 times the difference between base monthly rental of a displacement dwelling including utilities and the monthly rent of a comparable dwelling including utilities.

"Small business" means any business having not more than 500 employees working at the site being acquired or displaced by a program or project, which site is the location of economic activity. Sites operated solely by outdoor advertising signs, displays or devices do not qualify as a small business eligible for reestablishment expenses.

"State agency" means any department, agency, or instrumentality of the Commonwealth; public authority, municipal corporation, local governmental unit or political subdivision of the Commonwealth or any department, agency or instrumentality thereof; person who has the authority to acquire property by eminent domain under state law; or two or more of the aforementioned, which carries out projects that cause people to be displaced.

Statutory Authority

§ 25.1-402 of the Code of Virginia; 42 USC § 4601 et seq.; 49 CFR Part 24.

Historical Notes

Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001; amended, Virginia Register Volume 21, Issue 13, eff. April 6, 2005; Volume 30, Issue 26, eff. October 1, 2014.

24VAC30-41-40. Duplication of payment.

A person is not eligible to receive relocation payments if that person receives a payment under federal, state or local law which is determined to have the same purpose and effect as payments under these regulations.

Statutory Authority

§ 25.1-402 of the Code of Virginia; 42 USC § 4601 et seq.

Historical Notes

Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

24VAC30-41-50. Withholding of relocation payment.

When a displacee is advanced any relocation payment, that amount should be withheld from the relocation payment to which the displacee is other entitled. No relocation payment shall be withheld to satisfy an obligation to any other creditor or for any other purpose.

Statutory Authority

§ 25.1-402 of the Code of Virginia; 42 USC § 4601 et seq.; 49 CFR Part 24.

Historical Notes

Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001; amended, Virginia Register Volume 21, Issue 13, eff. April 6, 2005.

24VAC30-41-60. Relocation payments not considered as income.

No relocation payment received by a displaced person shall be considered as income for the purpose of the Internal Revenue Code or for the purpose of determining the eligibility of any person for assistance under the Social Security Act or any other federal law, except for any federal law providing low-income housing.

Statutory Authority

§ 25.1-402 of the Code of Virginia; 42 USC § 4601 et seq.

Historical Notes

Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

24VAC30-41-70. Civil rights and equal opportunity requirements.

A. All aspects of the relocation assistance program of VDOT shall be conducted without regard to race, color, religious creed, ancestry, national origin, age or sex. VDOT, through its field representatives, should advise all claimants of this policy of nondiscrimination. Displacees who feel that they have been discriminated against because of any of the factors listed shall be advised to write the district right of way and utilities manager (district manager) and explain their situation.

B. Replacement housing listings referred to persons displaced shall be available without regard to race, color, religion, ancestry, national origin, age or sex. Each right of way and utilities office (referred to in this regulation as a district office) shall make parties providing listings aware of this requirement. If any instance of discrimination against displacees by listing agencies or other parties providing listings is reported, the district shall attempt to ascertain the facts of the case. If the charges of discrimination are valid, the listing agency shall be so notified and the listing will no longer be used.

C. Independent contractors employed by the displacee for the purpose of moving the personal property, or to perform any other services related to the relocation, will be expected to observe nondiscrimination statutes and policies. If any incidence of discrimination is observed or reported, the contractor involved shall be asked to explain actions taken involving the particular displacee. Appropriate further action will be taken as required by relevant laws and policies.

D. Availability of financing and access to social services, which may be required by the displacee, shall be on a nondiscriminatory basis.

E. Relocation activities will comply with the applicable federal laws and implementing regulations listed in 54 FR 8932, § 24.8.

Statutory Authority

§ 25.1-402 of the Code of Virginia; 42 USC § 4601 et seq.

Historical Notes

Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

24VAC30-41-80. Administration of relocation program.

A. Central office organization and responsibility. The right of way and utilities division's relocation section administers the relocation program at the central office level. The primary functions of the relocation section are to promulgate policies and procedures, to monitor program implementation, and to coordinate administrative responsibilities necessary to successfully carry out the provision of the relocation program. The relocation section is staffed with skilled personnel to enable it to monitor program activities in district offices to assure delivery of consistent, fair and high quality services to displacees. It provides advice and policy interpretations to district right of way and utilities offices (referred to in this regulation as district offices) in the administration of complex or unique relocation cases. It monitors the relocation status on all projects, assuring that resources are available and problems are resolved so transportation projects can proceed to construction on schedule. The relocation section maintains close coordination with the district offices to assure adequate levels of staffing and to perform training needed to inform relocation personnel in changing and evolving relocation policy and practices.

B. District organization and responsibility.

1. It is the responsibility of the district office to carry out the relocation program in accordance with the provisions of this policy in a manner which assures timely, orderly and humane treatment of all displaced persons. The district office will perform the program in an efficient and orderly manner, so as to clear right of way needed for scheduled transportation project construction.

2. The district manager is responsible for assigning personnel to perform the relocation function and for managing and coordinating their activities.

3. The district office will monitor relocation assistance activities conducted by any other agencies or by consultants performing the relocation function for VDOT projects. Such monitoring will be by whatever means and extent necessary to assure compliance with the provisions of policy, procedures and instructions.

Statutory Authority

§ 25.1-402 of the Code of Virginia; 42 USC § 4601 et seq.

Historical Notes

Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001.

24VAC30-41-90. Appeals.

A. It is anticipated that from time to time persons affected by VDOT's relocation program will be dissatisfied with VDOT's determination as to their eligibility or with the amount of payments or services offered. It is the policy of VDOT to provide an opportunity to all persons to have their dissatisfactions heard and considered on an administrative level, without the expense, delay or inconvenience of court adjudication. VDOT's appeal procedure is promulgated to all potentially interested persons through the right of way brochure distributed at public hearings and provided to all displacees.

Persons making the appeal may be represented by legal counsel or any other representative at their expense. However, professional representation is not necessary for an appeal to be heard. The appellant will be permitted to inspect and copy all materials relevant to the matter appealed, except materials which are classified as confidential by VDOT or where disclosure is prohibited by law.

The appeal process consists of two levels. An interim appeal is heard in the district office. If the appellant is not satisfied on completion of the interim appeal, a final appeal may be addressed to the Commissioner of Highways.

B. Interim appeal. When displacees are dissatisfied with VDOT's determination of eligibility, or the amount offered under the relocation assistance and payments statutes, they may appeal in writing. The appeal must be submitted to the district manager within 90 days after receipt of VDOT's written determination. The district manager will schedule an informal hearing. A decision will be made following the hearing. A written copy of the decision, also stating the basis for the decision, will be provided to the appellant. A copy of such decision, along with all pertinent information involving the case, is to be submitted to the director of the right of way and utilities division. The central office relocation manager, or a designated representative, will be present at all interim appeals to provide technical program advice.

C. Final appeal. Upon notification of the district manager's decision, if the displacee is still dissatisfied, an appeal in writing may be submitted to the Commissioner of Highways within 10 days. Upon receipt by the commissioner, the appeal will be referred to a review board consisting of the director of the right of way and utilities division or a designated representative as chairman, a district manager selected by the chairman and not functioning in the area where the displacee resides, and a district administrator or a designated representative. The district administrator serving on this board will be the one functioning in the area where the appellant resides. Legal counsel for VDOT may also be present. The review board will schedule a hearing at a time and place reasonably convenient to the appellant. At the hearing all parties will be afforded an opportunity to express their respective positions and submit any supporting information or documents. A Court Reporter will be present to record and provide a transcript of all information presented at the hearing. Upon conclusion of the hearing, the review board will furnish the commissioner a written report of its findings. The commissioner or a designated representative will review the report and render a decision, which shall be final. The appellant and his attorney, if applicable, will be advised of the decision in writing, by certified mail, and will be provided a summary of the basis for the board's decision. If the full relief requested is not granted, the displacee shall be advised of the right to seek judicial review, which must be filed with the court within 30 days after receipt of the final appeal determination.

Statutory Authority

§ 25.1-402 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 3, eff. November 21, 2001; amended, Virginia Register Volume 28, Issue 4, eff. November 23, 2011.

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