# Interregional Highways/Acquisition of rights-of-way

Washington, DC: United States Government Printing Office, pages 83–88
ACQUISITION OF RIGHTS-OF-WAY
The greatest single impediment to the timely realization of desirable road improvements has been the difficulty of acquiring the necessary rights-of-way. Too often in the past the character of road improvements undertaken has been governed by the limitations of shortsighted land-acquisition measures. When the acquirement of land is postponed, as usually it has been, until the very moment of need for construction purposes, it is often discovered that the land actually wanted cannot be obtained without long delay. Time pressing, plans are altered to require less or more-available land, and in the end it is often found that for such inadequate takings too much has been paid. Every condition leads to ill-advised and uneconomic compromise.
The causes of these conditions are mainly two: one, the failure to plan and provide funds for land purchases sufficiently in advance of the occasion for road construction, and the other the cumbersome and time-consuming land acquisition processes prescribed by the laws of most of the States. If work on the interregional highway system is to supply the post-war employment of which it is capable, and if design of the system improvements is to be unwarped by right-of-way compromises, both of these causes must be clearly recognized and remedied.
Funds for advance acquisition of right-of-way.—The Federal Government has already made generous provision in the Defense Highway Act of 1941 and the recently enacted Public Law No. 146, Seventy-eighth Congress, for the survey and advance planning of highway construction projects. This provision can be, and is being employed for planning of improvements on routes conforming to the interregional system. With similarly adequate planning provision by the States, and their subdivisions, the further need in remedy of the first of the causes mentioned is the early and sufficient appropriation of immediately expendable funds for acquisition of the necessary lands and rights-of-way. For this purpose the amendment of the Federal Highway Act by Public Law No. 146 is ineffectual.
Revision of land-acquisition laws.—A complete remedy for the second of the causes referred to will require the more difficult revision of legally established methods of public land acquisition in many States.
In 55 jurisdictions examined, the Committee has found that there are no less than 320 such methods in present use, with nothing inherent either in the nature of the governmental units exercising the power or in the public uses for which lands are acquired to require such varied treatment. The common defect of the majority of these varied methods is that they postpone the public possession of required lands until the compensation due private owners has been determined by processes which involve many possibilities of legal delay and obstruction.
Fortunately, however, there are among the methods in use a few, recently developed and closely similar in their essential requirements, ​that avoid these delays, and yet afford ample protection of the rights of private property owners. Where these methods obtain, the condemning public authority, following required preliminaries, simply files a plat and description of the property to be acquired, and after notice to the owner of such action the appropriation is complete and title to the property vests in the State. If offers of the condemner are then rejected, the former owner must file a claim for the value of the property with the State court, which makes an award after hearing all the evidence.
The Committee recommends the general adoption of procedure of this type, details of which are well exemplified by methods now being employed pursuant to the New York Grade Crossing Elimination Act, pertinent sections of which are included in appendix IV. In the absence of some such provision, development of the interregional system will inevitably be subject to long and costly delays and litigation, and public benefits of the needed facilities will meanwhile remain unrealized.
A classical illustration of the time that may thus be lost between the commencement of condemnation proceedings and the beginning of construction operations occurred in the widening of Woodward Avenue in Detroit. Delay of almost a year and a half was occasioned in this instance largely by the death of a juror, which invalidated the whole procedure and required a new trial to be instituted. The case cost the city of Detroit $100,000 and the public was deprived of the benefits that would have resulted from an early completion of the improvement. While other elements may have contributed to the delay, such as the very requirement of a unanimous verdict and determination of necessity by a cumbersome jury, indiscriminate adjournments and lack of supervision by the court, provision for early possession pending the action would have facilitated the completion of the project.
New versus widened old rights-of-way.—To convert existing highways to conformance with standards appropriate for the proposed interregional system will require much revision of alinement and in many sections a substantial widening of present rights-of-way. Where such required changes are numerous, the acquirement of entirely new right-of-way will generally be found cheaper than widening and correcting the right-of-way of the existing road. The latter course will involve large takings of property frontage, always the most expensive of land acquisitions, and usually will entail also a heavy cost in incidental damages. The former, by avoiding existing frontage, will usually result in lower total costs notwithstanding the severance damages that may be involved. For example, it was estimated that the cost of land for widening the Albany Post Road in Westchester County, N. Y., from 66 to 166 feet would have been over $792,000 per mile, while land for the Saw Mill River Parkway (of limited-access design) on entirely undeveloped new location and averaging 500 feet in width, cost only $138,600 per mile.
In and around cities the widening of existing rights-of-way is likely to be especially costly because of the high values usually attaching to urban street frontage and the improvements and structures characteristic of urban areas. For example, the widening of Ashland and Western Avenues and La Salle Street in Chicago cost more than a third of a million dollars per mile on the average for each additional ​10 feet of width. In Detroit the property acquired to permit the widening of 3 miles of Woodward Avenue cost more than $9,800,000 of a total cost approximating $11,000,000, and the resulting functional improvement was very slight. In this case it has been estimated that the same total expenditure would have paid for 11 miles of limited-access highway constructed on a less expensive right-of-way, with far greater results in the improvement of transportation service.
In each of these cited cases the additional width acquired at each side of the street to be improved was less than the full depth of abutting property lots. It is probable that the costs in these cases would not have been materially higher if the entire depth of abutting lots had been taken; for, as a general rule, it is found that the acquisition of whole parcels of city property is seldom more expensive than the taking of a portion, because of the heavy payment usually required in consequential damages to the untaken remainder.
Left in private hands, the untaken portions of lots, called remnants, especially where they are very shallow or of other than rectangular shape, can often be used only for the erection of billboards, shanties, or other unsightly structures. In many cases they remain as ill-kept vacant lots, valueless to their owners, but nevertheless preventing access to adjacent property which otherwise would enjoy useful street frontage.
The minimum width of right-of-way required for urban sections of the interregional system will generally be at least as great as the depth of city property lots. Where such a width is to be taken it will be preferable, both for the avoidance of remnants and from the standpoint of cost, to take the whole depth of a tier of lots on one side of an existing street rather than half portions of the lots of opposite frontage.
In most instances, however, the Committee believes that a fully adequate provision for city sections of the system will require the acquisition of a block-wide strip. As previously suggested this will permit the retention of streets flanking the acquired block as the essential local service ways of the express artery. It will avoid exposure of the rear of properties, will reduce by as much as possible the effect of depression upon city underground facilities by leaving those in the beds of the flanking streets undisturbed, and will at the same time afford a sufficient width for adequate landscaping.
Land for marginal protection and future road widening.—On rural sections of the system, expecially those sections which will be constructed initially as two-lane highways, the width of right-of-way acquired should be sufficient to provide for any surface widening that may be reasonably anticipated. Nothing is more completely demonstrated by past experience than the costliness of successive acquisitions of property frontage to make room for repeated unanticipated road widenings.
The width acquired should also be sufficient to accommodate, at each side of the roadway in its eventual anticipated width, marginal strips of land to serve as a protection against the unsafe and unsightly development of closely crowding roadside stands, filling stations, and signboards.
Unfortunately, the expropriation of width additional to that required for the physical improvements immediately planned is ​specifically sanctioned by law in only a few States. Cases in which such proposed takings have been tested in the courts have been complicated with a purpose to resell a portion of the land acquired and with the presumption of a motive to recoup a portion of the cost of the land retained by profiting on the sale of the excess. It is evident the courts have not been persuaded that the acquisition of marginal strips, even for future roadway widening or for present border protection, is an appropriation for a "public use," the test to which they firmly adhere in determination of the validity of all expropriation. It must be admitted, however, that the necessities of such acquisition have not been clearly presented for judicial determination.
The Committee is of the opinion that if marginal land is acquired for border protection and to make provision for definitely anticipated future roadway widening, its employment for these purposes will constitute a “public use” in the narrowest sense of the term. A reasonable and proper development of the interregional system requires the acquisition of such marginal areas, and they cannot be acquired in the fullness nd continuity essential without use of the power of expropriation in at least some cases. The right to exercise the power of eminent domain for these purposes should be promptly established in all jurisdictions, either by State constitutional amendments or preferably by a discerning interpretation of the concept of “public use”; and, however established, the power should be sufficiently broad to encompass the public disposal by sale or lease of unneeded remnants unavoidably acquired with the needed lands.
Alternatives to outright marginal acquisition.—Various exercises of the police power for control of roadside land use, as exemplified by present practices of zoning and billboard regulation, may serve temporarily and partially as substitutes for the outright public acquisition of road-bordering strips. They can never constitute a permanent over-all solution of the problems involved, but with proper revision, enlargement, and effective application they can become valuable auxiliary devices for the regulation of land uses detrimental to the safe and efficient use of the highways. A good example of legislation providing for such use of the police power is to be found in the statutes of Pennsylvania.
As a better substitute for outright acquisition, the Committee recommends the public appropriation of what may be termed “highway development rights,” i. e., the rights of owners of private property abutting on highways to improve road-marginal strips of their property in any manner inconsistent with present or future traffic requirements. Because of the legal limitations of the police power, establishment of the right to acquire such control should be conceived rather as an exercise of the power of eminent domain, for which compensation would be forthcoming. It is taken for granted that State enabling legislation would be necessary, and a prototype of such legislation exists in a Maryland law enacted in 1941
Compensation for such rights would be nominal in most instances, because the payment would be made only for actual demonstrable injury, and because the right would be acquired usually at the time when land is being taken for immediate highway improvement,
* ↑ California, Massachusetts, Michigan, New York, Ohio, Pennsylvania, Rhode Island, Virginia, and Wisconsin permit marginal land acquisition by constitutional amendment.
* ↑ Purdon's Pennsylvania Statutes, 1942 (Perm. Ed.), title 36, ch. 1, sec. 61. pp. 51 et seq.
* ↑ Laws of Maryland, 1941, ch. 486.
The need for competent land authorities.—Many of the obstacles which block the efficient acquisition of lands for highways likewise serve as impediments to the ready assembly of lands for other public purposes. Revision of the present laws and practices, if broadly conceived, can serve to remove the outmoded features of land acquisition for all public purposes with a single effort.
The Committee recommends, wherever possible, that lands needed for development of the interregional highway system be acquired in conjunction with the acquisition of lands for adjacent housing, airport, park, or other public developments which the highways will be designed in part to serve. The mutual benefits of such a simultaneous and cooperative program of land assembly, the Committee believes, will be reflected in lower land costs, in a more rational land-use pattern, and in the elimination of all possible focal points of conflict between the various improvement programs concerned. To deal competently with the legal, financial, and administrative problems of such interrelated and mutually beneficial land acquisitions, the Committee recognizes a need for the creation of special land authorities, adequately empowered and financed, to acquire all lands needed for public purposes of any sort.
In its report, Toll Roads and Free Roads, the Public Roads Administration recommended the creation of such a land authority by the Federal Government. The Committee concurs in the recommendation. It also recommends the creation of similar land authorities by the States and by cities and legally constituted metropolitan areas, and suggests further that provision be made for the cooperation of Federal, State, and city or metropolitan authorities under a Federal-aid plan which will enable the Federal agency to finance the acquisition of needed lands for highway and other public purposes and permit amortization of the costs by the State and local authorities over a long period of time.
These special authorities, concerned only with sound and efficient financing of land acquisition for all public purposes, would serve as instrumentalities to assure the avoidance of conflict between the land acquisition purposes of public agencies devoted to various developmental objectives, and to recover the total cost of all acquisitions by joint and supplementary measures of amortization.
The difficulties of land assembly are widely recognized as primary obstacles to the effective rebuilding of blighted areas at the cores of our great cities, an objective closely associated with one of the principal purposes of interregional highway development. The problems of land acquisition in this connection are so immense that they may be said to be virtually insoluble without government financial and directive assistance.
It is inevitable, therefore, that government authority should now be used as an aid in the efficient assembly and appropriate redevelopment of large tracts of blighted urban lands, in reverse of the use of ​such authority many years ago to subdivide and encourage the settlement of unoccupied primitive lands. The essential role of government in this connection would be to facilitate the transition financing of the rehabilitation of blighted areas, to employ its powers of eminent domain in the public interest, and to fix the standards of redevelopment. This role performed, the task of development and rebuilding according to the standards and master plan defined, should be transferred as largely and as promptly as possible to private initiative.