Federal Highway Administration, DOT § 710.405

§ 710.403 Management. Disposal for public purposes may also (a) The STD must assure that all real be at fair market value. The STD shall property within the boundaries of a submit requests for such exceptions to federally-aided facility is devoted ex- the FHWA in writing. clusively to the purposes of that facil- (2) Use by public utilities in accord- ity and is preserved free of all other ance with 23 CFR part 645. public or private alternative uses, un- (3) Use by Railroads in accordance less such alternative uses are per- with 23 CFR part 646. mitted by Federal regulation or the (4) Use for Bikeways and pedestrian FHWA. An alternative use must be walkways in accordance with 23 CFR consistent with the continued oper- part 652. ation, maintenance, and safety of the (5) Use for transportation projects el- facility, and such use shall not result igible for assistance under title 23 of in the exposure of the facility’s users the United States Code, provided that a or others to hazards. concession agreement, as defined in (b) The STD shall specify procedures section 710.703, shall not constitute a in the State manual for determining transportation project. when a real property interest is no (e) The Federal share of net income longer needed. These procedures must from the sale or lease of excess real provide for coordination among rel- property shall be used by the STD for evant STD organizational units, in- activities eligible for funding under cluding maintenance, safety, design, title 23 of the United States Code. planning, right-of-way, environment, Where project income derived from the access management, and traffic oper- sale or lease of excess property is used ations. for subsequent title 23 projects, use of (c) The STD shall evaluate the envi- the income does not create a Federal- ronmental effects of disposal and leas- aid project. ing actions requiring FHWA approval (f) No FHWA approval is required for as provided in 23 CFR part 771. disposal of property which is located (d) Acquiring agencies shall charge outside of the limits of the right-of- current fair market value or rent for way if Federal funds did not partici- the use or disposal of real property in- pate in the acquisition cost of the prop- terests, including access control, if erty. those real property interests were ob- (g) Highway facilities in which Fed- tained with title 23 of the United eral funds participated in either the States Code funding, except as provided right-of-way or construction may be in paragraphs (d) (1) through (5) of this relinquished to another governmental section. Since property no longer need- agency for continued highway use ed for a project was acquired with pub- under the provisions of 23 CFR 620, sub- lic funding, the principle guiding dis- part B. posal would normally be to sell the property at fair market value and use [64 FR 71290, Dec. 21, 1999, as amended at 73 the funds for transportation purposes. FR 77503, Dec. 19, 2008] The term fair market value as used for acquisition and disposal purposes is as § 710.405 Air rights on the Interstate. defined by State statute and/or State (a) The FHWA policies relating to court decisions. Exceptions to the gen- management of airspace on the Inter- eral requirement for charging fair mar- state for non-highway purposes are in- ket value may be approved in the fol- cluded in this section. Although this lowing situations: section deals specifically with approval (1) With FHWA approval, when the actions on the Interstate, any use of STD clearly shows that an exception is airspace contemplated by a STD must in the overall public interest for social, assure that such occupancy, use, or environmental, or economic purposes; reservation is in the public interest nonproprietary governmental use; or and does not impair the highway or uses under 23 U.S.C. 142(f), Public interfere with the free and safe flow of Transportation. The STD manual may traffic as provided in 23 CFR 1.23. include criteria for evaluating dis- (1) This subpart applies to Interstate posals at less than fair market value. facilities which received title 23 of the

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United States Code assistance in any facility. It shall also include provisions way. governing lease revocation, removal of (2) This subpart does not apply to the improvements at no cost to the FHWA, following: adequate insurance to hold the State (i) Non-Interstate highways. and the FHWA harmless, non- (ii) Railroads and public utilities discrimination, access by the STD and which cross or otherwise occupy Fed- the FHWA for inspection, maintenance, eral-aid highway right-of-way. and reconstruction of the facility. (iii) Relocations of railroads or utili- (b) Where a proposed use requires ties for which reimbursement is changes in the existing transportation claimed under 23 CFR part 140, sub- facility, such changes shall be provided parts E and H. without cost to Federal funds unless (iv) Bikeways and pedestrian walk- otherwise specifically agreed to by the ways as covered in 23 CFR part 652. STD and the FHWA. (b) A STD may grant rights for tem- (c) Proposed uses of real property porary or permanent occupancy or use shall conform to the current design of Interstate system airspace if the standards and safety criteria of the STD has acquired sufficient legal right, Federal Highway Administration for title, and interest in the right-of-way the functional classification of the of a federally assisted highway to per- highway facility in which the property mit the use of certain airspace for non- is located. highway purposes; and where such air- space is not required presently or in § 710.409 Disposals. the foreseeable future for the safe and (a) Real property interests deter- proper operation and maintenance of mined to be excess to transportation the highway facility. The STD must needs may be sold or conveyed to a obtain prior FHWA approval, except for public entity or to a private party in paragraph (c) of this section. accordance with § 710.403(d). (c) An STD may make lands and (b) Federal, State, and local agencies rights-of-way available without charge shall be afforded the opportunity to ac- to a publicly owned mass transit au- quire real property interests considered thority for public transit purposes for disposal when such real property in- whenever the public interest will be terests have potential use for parks, served, and where this can be accom- conservation, recreation, or related plished without impairing automotive purposes, and when such a transfer is safety or future highway improvements allowed by State law. When this poten- (d) An individual, company, organiza- tial exists, the STD shall notify the ap- tion, or public agency desiring to use propriate resource agencies of its in- airspace shall submit a written request tentions to dispose of the real property to the STD. If the STD recommends ap- interests. The notifications can be ac- proval, it shall forward an application complished by placing the appropriate together with its recommendation and agencies on the States’ disposal notifi- any necessary supplemental informa- cation listing. tion including the proposed airspace (c) Real property interests may be re- agreement to the FHWA. The submis- tained by the STD to restore, preserve, sion shall affirmatively provide for ad- or improve the scenic beauty and envi- herence to all policy requirements con- ronmental quality adjacent to the tained in this subpart and conform to transportation facility. the provisions in the FHWA’s Airspace (d) Where the transfer of properties Guidelines at: http://www.fhwa.dot.gov/ to other agencies at less than fair mar- realestate/index.htm. ket value for continued public use is clearly justified as in the public inter- § 710.407 Leasing. est and approved by the FHWA, the (a) Leasing of real property acquired deed shall provide for reversion of the with title 23 of the United States Code, property for failure to continue public funds shall be covered by an agreement ownership and use. Where property is between the STD and lessee which con- sold at fair market value no reversion tains provisions to insure the safety clause is required. Disposal actions de- and integrity of the federally funded scribed in 23 CFR 710.403(d)(1) for less

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