Chapter 5: Summary of Findings

In September 2008, the scanning team visited Australia and Canada to learn about innovative practices for right-of-way and utility processes that might be applicable for implementation in the United States. The study team met with four state transportation agencies in Australia: RTA (New South Wales), Main Roads (Queensland), DTEI (South Australia), and VicRoads (Victoria). In Canada, the study team met with Alberta Transportation (Alberta) and MTO (Ontario). The 2008 scanning study complemented a 2000 scanning study of European countries that covered Germany, the Netherlands, Norway, and the United Kingdom.⁽¹⁾

With the 2000 and 2008 scans, the United States now has a sizable database of effective right-of-way and utility practices and strategies covering at least six industrialized nations on three continents. The fact that some of those strategies and practices are used in all or most of those nations is an additional indication of the strength and benefit derived from them, further highlighting the value of their potential implementation in the United States. Taking into consideration that the United States is already implementing several recommendations from the 2000 scan,⁽⁵⁸⁾ a valid recommendation would be to evaluate (if not now, possibly within the next 5 to 8 years) which recommendations from the 2000 and 2008 scans have become accepted practice in the United States (and to what degree). For example, FHWA recently facilitated a peer exchange to evaluate the concept of voluntary incentives for right-of-way acquisition and relocation, one of the recommendations from the 2000 scan.⁽⁵⁹⁾ The peer exchange noted 13 pilot voluntary incentive applications from eight States.

This chapter summarizes some of the lessons learned from the scanning study of Australia and Canada. Chapter 6 describes specific implementation ideas the scan team believes merit consideration in the United States.

Australia

Lessons learned from the meetings with RTA, Main Roads, DTEI, and VicRoads include the following:

• Business approach to operations and emphasis on good working relationships. The study team perceived a strong emphasis on entrepreneurship and the application of sound business principles to DOT operations, including right-of-way and utility coordination. Examples of business approach strategies include an emphasis on strategic planning, a clear understanding of the agency's mandate to maintain high levels of performance and customer satisfaction, consideration of long-term right-of-way needs in transportation facility management, and understanding of the critical need to develop and maintain good working relationships with other stakeholders of the road reserve. An emphasis on effective communications, appropriate performance measurement, and customer satisfaction has resulted in some of the agencies visited being ranked among the highest in their states on public satisfaction with their performance.

• Alliance contracting approach. The alliance contracting approach is gaining popularity in Australia, particularly when there are significant uncertainties about the optimum solution for a project. Uncertainties can include unpredictable risks, a project that is difficult to scope or for tenderers to price, time pressures, and the state's desire for breakthroughs and innovation.

  In the alliance approach, the transportation agency uses an early contractor involvement model that focuses on assembling and integrating the best possible leadership, management, and project execution teams based on qualifications and experience. Following a best-for-project approach, each team could include participants from the selected consortium and/or the transportation agency, depending on the specific expertise area needed.

  An early contractor involvement approach means the alliance team is involved during the project scoping and design phases. Because no bidding occurs at the end of the design phase (since the consortium was selected earlier), the alliance approach requires transparent communications between the parties, particularly on compensation and cost structures. Strategies to achieve this goal include establishing a fee structure for all direct project costs that uses open-book accounting and is viewable by all parties, a separate corporate overhead and profit calculation, and clear gainshare-painshare arrangements. Gainshare provisions include establishing how to share any net monetary savings at the end of the project.

  In general, the alliance team is responsible for coordinating effectively with utilities early and finding optimum relocation strategies. Only one team interacts with utilities during the design and construction phases. The alliance team also presents a unified front for dealing and negotiating with property owners.

• Training and professional development. Australian states use a variety of approaches to promote training and professional development opportunities. For example, several universities offer formal educational programs for property valuers. A typical full-time, 3-year program offers a degree with a major in property. Coursework usually covers areas such as accounting, construction, property valuation, contract law, statistics, business finance, marketing, GIS, property economics, property law, planning and environmental law, and property and asset management.

  In New South Wales, the NSW Streets Opening Conference sponsored the development of a pilot training course for transportation and utility personnel involved in locating utility facilities in the field. The training course provides the foundation for a formal accreditation process for utility location services.

  Through VicRoads International, VicRoads has an active presence abroad. An integral component of the VRI program is to provide staff members with the opportunity to travel and work abroad, which in the long term benefits VicRoads because it promotes personal growth and professional development. VicRoads also promotes VRI as a recruitment strategy.

• Road reserve. The concepts of road reserve and road right-of-way (as applied in the United States) share many similarities. However, the treatment of the road reserve in Australian legislation historically has been stronger and more centralized than the treatment of the right-of-way in the United States. Australian states have also benefited from the application of more centralized land use practices as well as high-level planning and land title registration offices that work with ministries of transportation and other state agencies to provide orderly, coordinated land use planning.

• Corridor preservation. Australian states have a number of tools that facilitate the preservation of corridors for future transportation use. Examples include the requirement to register transportation plans with the state land title registration office, the ability of these offices to add notes or caveats to title certificates on the future use of a corridor, the ability to control building setbacks on corridors designated for future road expansion, and the ability of the transportation agency to acquire parcels during the planning phase.

• Appraiser-legal representation fees and right-ofway negotiation process. Australian states routinely reimburse property owners for reasonable expenses (including attorney fees) related to the appraisal and negotiation process. Further, in Australian practice, property owners are encouraged to become informed and seek professional help to assist them in that process. In addition, Australian states routinely share appraisal reports with property owners (or their representatives). Additional innovative right-of-way acquisition practices include reconciliation of professional opinions, the use of lease agreements with property owners to facilitate early right of entry to the property, in-kind compensation, exchange of surplus property for required property, and reliance on appraisals by independent bodies.

  Combined, these features result in a more cooperative, less adversarial relationship with property owners, which can result in more effective property acquisition practices and earlier access to property needed for project completion.

• Use of technology to support the right-of-way acquisition and property management processes. It is customary for Australian states to use GIS-based applications to manage the right-of-way acquisition process, including corridor preservation, and property management activities. The use of GIS technology is supported by the use of public acquisition overlays during the planning process to illustrate the extent of the road reserve, the requirement to register transportation plans with the state land title registration office, and the integration of parcel databases into georeferenced data repositories that facilitate data exchange among stakeholders.

  Through the alliance contracting approach, Australian states are beginning to experiment with the use of visualization techniques to assist in the right-of-way acquisition process (e.g., by using 3-D visualization techniques and posting video clips on the Internet to explain the project to a wide audience).

• Dial Before You Dig. "Dial Before You Dig" is a referral system for information on underground utility installations. It is a voluntary national organization with members from all states and territories. It is similar to utility one-call centers in the United States, with two major differences. First, membership includes not just utility owners and operators, but also transportation agencies and railroads (under the premise that these agencies can also provide information about the assets they own to parties that request it). Second, Dial Before You Dig encourages the use of the services earlier in the project development process than is customary in the United States.

• Reimbursement of utility relocations. Australian states normally reimburse utility interests for the relocation of utility facilities (but not for betterments). Historically, most utility owners and operators have been government entities. As a result, it does not really matter who pays for the relocation since funding for it comes from the same source. For simplicity, the policy is that the agency responsible for the transportation project that causes the need for the utility relocation is also responsible for relocation costs. In recent years, the Australian utility industry has undergone deregulation, with a large percentage of utility interests now in private hands. However, the policy for reimbursing utility relocations continues.

• Multilevel MOU approach with utilities. In Australia, several states are exploring a variety of MOUs and agreements with utilities to facilitate the cooperation and coordination process. In a typical situation, a high-level MOU sets forth general principles and the intent of both parties to work cooperatively. Typically, this MOU is signed by the parties at the executive director level. To ensure the MOU is a living document, it may include attachments and other agreements that discuss specific issues, such as standards, specifications, and general procedures for resolving conflicts. Typically, technical personnel from both organizations prepare these documents. There may also be contract-level agreement details and specific provisions that the higher-level MOU does not address.

  The multilevel MOU concept is also used in the United States. However, the study team's impression is that Australian MOUs are more elaborate and stringent than those in the United States. Utility accommodation policies or rules at the State level govern the accommodation of utilities on the State right-of-way in the United States, but a similar concept does not appear to exist in Australia (which could explain in part the need for more comprehensive MOUs). Nonetheless, the study team noticed several advantages in the Australian MOU concept worth considering for implementation in the United States.

  MOUs with telecommunication providers in Australia appear particularly critical, considering that telecommunications in that country are governed by federal legislation (rather than state legislation, as is the case for other utilities) that, in general, is weak on the power given to the agencies responsible for the road reserves to regulate the accommodation of telecommunication facilities.

  Related to the implementation of the MOUs is the NSW Streets Opening Conference, which started in Sydney in 1909 as a focal point for discussing common transportation and utility issues. The association's objectives include establishing roadside allocations and recommended practices for providing utility services; fostering coordination; encouraging the use of agreed-on codes and practices for excavation, backfilling, and roadway reconstruction; and minimizing the impact of excavations. Members include utility owners, local government and road authorities, light rail operators, other government agencies, consultants, and other groups interested in utility issues.

Canada

Lessons learned from the meetings with Alberta Transportation and MTO include the following:

• Appraisal sharing. As in the Australian states, Alberta Transportation and MTO share appraisal reports in full disclosure to achieve transparency with property owners. Both agencies also reimburse property owners for reasonable costs, including appraisal, engineering reports, and planning reports.

• Corridor preservation and setback control. Alberta and Ontario have legislation that enables the provincial transportation agency to regulate the type of development (including utilities) that takes place within a certain distance from the road centerline or the property line. In Alberta, the extent of the land under regulation varies by road type. For example, according to a regulation now under development, the extent of land under regulation will be 150 m (492 ft) from the right-of-way line for minor provincial highways and 300 m (984 ft) from the right-of-way line for multilane provincial highways. In Ontario, regulation tools at MTO's disposal cover encroachments and utility installations, buildings and land use, signs, and highway access. The minimum setback for new buildings or other structures varies by road type and proposed development. For example, on controlled-access highways, the control area within which all development is subject to permit requirements from the ministry is 45 m (148 ft) from the right-of-way. This permit area extends up to 395 m (1,296 ft) at interchanges.

• Transportation and utility corridors. In Alberta, the Government Organization Act enabled the establishment of restricted development areas to coordinate and regulate the development and use of certain areas. The Calgary RDA and the Edmonton RDA are of particular interest because of the designation of TUCs within those RDAs. The TUCs were established on the principle that long-term planning for the accommodation of a number of transportation and utility facilities within a TUC can maximize its use. The TUCs protect ring road and utility alignments from advancing urban development. Advantages to the use of TUCs include land conservation, limited environmental disruption, administrative efficiency, safety, land use certainty, assured alignments for future users, and open space use.

• Reversal of trend to outsource most work. Alberta Transportation outsources most work, including right-of-way acquisition and utility coordination. However, the agency is revisiting its 100 percent commitment to outsourcing. MTO outsources much of its work except right-of-way acquisition, but has begun to do more work internally. This trend highlights the need to develop in-house expertise to address needs such as succession planning, the ability to provide needed services, and the management of services that continue to be outsourced.