WSR 06-23-046

EXPEDITED RULES

DEPARTMENT OF TRANSPORTATION


[ Filed November 7, 2006, 4:26 p.m. ]

Title of Rule and Other Identifying Information: WAC 468-100-403 (1)(f), deductions from relocation payments under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended.

NOTICE

THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Gerald L. Gallinger, Director, Real Estate Services, Washington State Department of Transportation, P.O. Box 47338, Olympia, WA 98504-7338 , AND RECEIVED BY January 22, 2006 [2007].


Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Title 49 C.F.R. Part 24, implements the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, (the Uniform Act). The Uniform Act applies to all acquisitions of real property or displacements of persons resulting from federal or federally-assisted programs or projects and affects eighteen federal agencies. The Uniform Act was enacted to provide fair, equitable and consistent treatment without disproportionate injury for persons being displaced as a result of a federal or federally-funded projects. The federal regulations adopted changes in February 2005. The changes clarify present requirements, meet modern needs and improve the service to individuals and businesses affected by federal or federally-assisted projects while at the same time saving time reducing the burdens of government regulations.

The purpose of these changes is to amend WAC 468-100-403 (1)(f) to reflect regulatory changes made by the Federal Highway Administration (FHWA) to the federal regulations in 49 C.F.R. Part 24 Section 24 that became effective on February 3, 2005.

Reasons Supporting Proposal: To be in compliance with federal regulations.

Statutory Authority for Adoption: Chapter 8.26 RCW.

Statute Being Implemented: WAC 468-100-403 (1)(f).

Rule is necessary because of federal law, the existing rules changed by Docket No. FHWA-2003-14747 - issued on January 4, 2005, and effective on February 3, 2005.

Name of Proponent: Washington state department of transportation, governmental.

Name of Agency Personnel Responsible for Drafting: Dianna Ayers, P.O. Box 47338, Olympia, WA 98504-7338, (360) 705-7329; Implementation and Enforcement: Gerald Gallinger, P.O. Box 47338, Olympia, WA 98504-7338, (360) 705-7305.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The Washington state department of transportation, based on authority granted in RCW 34.05.350, is using the expedited process to make necessary changes to WAC 468-100-403 (1)(f) to comply with changes made to 49 C.F.R. Part 24, Section 24 which became effective on February 3, 2005.

The Washington state department of transportation must comply with the federal regulations as supported in 49 C.F.R. Part 24, Section 24. This change was overlooked in our original November 2005 request.

November 1, 2006

John F. Conrad

Assistant Secretary

Engineering and Regional Operations

OTS-9298.1


AMENDATORY SECTION(Amending WSR 06-02-068, filed 1/3/06, effective 2/3/06)

WAC 468-100-403   Additional rules governing replacement housing payments.   (1) Determining cost of comparable replacement dwelling: The upper limit of a replacement housing payment shall be based on the cost of a comparable replacement dwelling (defined in WAC 468-100-002(6)).

(a) Three-comparable method: If available, at least three comparable replacement dwellings shall be examined and the payment computed on the basis of the dwelling most nearly representative of, and equal to, or better than, the displacement dwelling.

(b) Major exterior attribute: If the site of the comparable replacement dwelling lacks a major exterior attribute of the displacement dwelling site (e.g., the site is significantly smaller or does not contain a swimming pool or outbuildings), the value of such attribute shall be subtracted from the acquisition cost of the displacement dwelling for purposes of computing the replacement housing payment.

(c) Remainder offer: If the acquisition of a portion of a typical residential property causes the displacement of the owner from the dwelling and the remainder is a remnant of the displacement dwelling site or a buildable residential lot, the agency may offer to purchase the entire property. If such an offer is made and the owner refuses to sell the remainder to the agency, the value attributable to that remainder, shall be added to the acquisition price paid for the displacement dwelling for purposes of computing the price differential.

(d) Location: To the extent feasible, comparable replacement dwellings shall be selected preferably from the neighborhood in which the displacement dwelling was located or, if not otherwise feasible, from nearby or similar neighborhoods where housing costs are generally the same as in the displacement neighborhood. Where that is not possible dwellings may be selected from neighborhoods where housing costs are the same or higher.

(e) Multiple occupants of one displacement dwelling: If two or more occupants of the displacement dwelling move to separate replacement dwellings, each occupant is entitled to a reasonable prorated share, as determined by the agency, of any relocation payments that would have been made if the occupants moved together to a comparable replacement dwelling. However, if the agency determines that two or more occupants maintained separate households within the same dwelling, such occupants have separate entitlements to relocation payments.

(f) Deductions from relocation payments: An agency shall deduct the amount of any advance relocation payment from the relocation payment(s) to which a displaced person is otherwise entitled. ((Similarly, where such a deduction would not prevent the displaced person from obtaining a comparable replacement dwelling as required by WAC 468-100-204, an agency may deduct from relocation payments any rent that the displaced person owes the agency.)) The agency shall not withhold any part of a relocation payment to a displaced person to satisfy an obligation to any other creditor.

(g) Mixed-use and multifamily properties: If the displacement dwelling was part of a property that contained another dwelling unit and/or space used for nonresidential purposes, and/or is located on a tract larger than a site that is typical for residential purposes, only that portion of the acquisition payment which is actually attributable to the displacement dwelling shall be considered its acquisition cost when computing the price differential.

(h) Insurance proceeds: To the extent necessary to avoid duplicate compensation, the amount of any insurance proceeds received by a person in connection with a loss to the displacement dwelling due to a catastrophic occurrence (fire, flood, etc.) shall be included in the acquisition cost of the displacement dwelling when computing the price differential. (Also see WAC 468-100-003.)

(2) Inspection of replacement dwelling: Before making a replacement housing payment or releasing a payment from escrow, the agency or its designated representative shall inspect the replacement dwelling and determine whether it is a DSS dwelling as defined in WAC 468-100-002(8).

(3) Purchase of replacement dwelling: A displaced person is considered to have met the requirement to purchase a replacement dwelling, if the person:

(a) Purchases a dwelling; or

(b) Purchases and rehabilitates a substandard dwelling; or

(c) Relocates a dwelling which the person owns or purchases; or

(d) Constructs a dwelling on a site the person owns or purchases; or

(e) Contracts for the purchase or construction of a dwelling on a site provided by a builder or on a site the person owns or purchases; or

(f) Currently owns a previously purchased dwelling and site, valuation of which shall be on the basis of current fair market value.

(4) Occupancy requirements for displacement or replacement dwelling: No person shall be denied eligibility for a replacement housing payment solely because the person is unable to meet the occupancy requirements set forth in this chapter for a reason beyond the person's control, including:

(a) A disaster, an emergency, or an imminent threat to the public health or welfare, as determined by the funding agency; or

(b) Another reason, such as a delay in the construction of the replacement dwelling, military reserve duty, or hospital stay, as determined by the agency.

(5) Conversion of payment: A displaced person who initially rents a replacement dwelling and receives a rental assistance payment under WAC 468-100-402(2) is eligible to receive a payment under WAC 468-100-401 or 468-100-402(3) if the person meets the eligibility criteria for such payments, including purchase and occupancy within the prescribed one-year period. Any portion of the rental assistance payment that has been disbursed shall be deducted from the payment computed under WAC 468-100-401 or 468-100-402(3).

(6) Payment after death: A replacement housing payment is personal to the displaced person and upon the person's death the undisbursed portion of any such payment shall not be paid to the heirs or assigns, except that:

(a) The amount attributable to the displaced person's period of actual occupancy of the replacement housing shall be paid.

(b) The full payment shall be disbursed in any case in which a member of a displaced family dies and the other family member(s) continue to occupy a DSS replacement dwelling.

(c) Any portion of a replacement housing payment necessary to satisfy the legal obligation of an estate in connection with the selection of a replacement dwelling by or on behalf of a deceased person shall be disbursed to the estate.

[Statutory Authority: Chapter 8.26 RCW. 06-02-068, 468-100-403, filed 1/3/06, effective 2/3/06; 89-17-048 (Order 121), 468-100-403, filed 8/14/89, effective 9/14/89.]

Washington State Code Reviser's Office