title-410•Neb. Admin. Code tit. 410 — Right of Way Division
Neb. Admin. Code tit. 410 — Right of Way Division
title-410Neb. Admin. Code tit. 410Regulation
Chapter 3 Sign Permits
Neb. Admin. Code tit. 410, ch. 3 Sign Permits {#sec-410-nac-3 omnilex-key=us-ne-regs-official--title-410--410 NAC 3}
001 ADVERTISING SIGNS ON HIGHWAYS: STATE HIGHWAY SYSTEM
001.01 No permit will be granted by the Department of Transportation to erect any private advertising sign upon any highway on the State Highway System and any such permit granted prior to January 1. 1928. is void.
001.02 No permit will be granted by the Department of Transportation to erect markers on any highway on the State Highway System designated trails or routes which were not marked prior to January 1. 1934. except that this Rule shall not apply to the Historical Landmark Commission.
002 RULES AND REGULATIONS RELATING TO THE CONTROL OF ADVERTISING IN AREAS ADJACENT TO THE HIGHWAY BEAUTIFICATION CONTROL SYSTEM
002.01 DEFINITIONS PERTAINING TO ADVERTISING CONTROL: 39-102(7), 39-201.01 to 39-226, 39-1302, 39-1311, 39-1320, 60-6,127 and 60-6,128, and 69-1701 to 69-1702, Neb. Rev. Stat., hereinafter referred to as the Act, are incorporated herein and made a part of these Rules and Regulations by this reference. In addition to the definitions set forth in these statutes, the following definitions are also made a part of these Rules and Regulations:
002.01A BONUS AREA: That area along the Interstate System within 660 feet of the right-of-way in which the State has controlled outdoor advertising in order to be eligible for an increase in the Federal share of one half of one percent of the total cost thereof as provided for in Title 23, U.S.C. Section 131.
002.01B CHANGEABLE MESSAGE SIGN (CMS): An outdoor advertising sign, display or device which changes message or copy on the sign regardless of the technology used.
002.01C COMMERCIAL ACTIVITY: Activities generally recognized as commercial by zoning authorities in this state and having adequate access, parking and utilities, except that none of the following shall be considered commercial:
002.01C1 Outdoor advertising structures;
002.01C2 General agricultural, forestry, ranching, grazing, farming, and related activities, including wayside fresh produce stands:
002.01C3 Activities normally or regularly in operation less than three months of the year;
002.01C4 Activities conducted in a building principally used as a residence;
002.01C5 Railroad tracks and minor sidings;
002.01C6 Activities more than six hundred and sixty feet from the nearest edge of the right of way of the road or highway.
002.01D CONTROLLED AREA: Controlled Area shall mean that area that is:
002.01D1 Outside the urban areas as defined by the Nebraska Department of Transportation and visible from the main-traveled way of the Highway Beautification Control System (HBCS), or;
002.01D2 Within the approved urban areas as defined by the Nebraska Department of Transportation and within six hundred and sixty feet of the right of way of the HBCS.
002.01E COTTON AREA: Any area bounded on each end by two lines extended perpendicularly from the centerline of the Interstate Highway to both edges of the Interstate Right of Way. This area must have been a highway, road, or street public right of way on or before July 1, 1956. The area outside the Interstate Right of Way and extending six hundred and sixty feet beyond the edge of the Interstate and between the two extended perpendicular lines is a Cotton Area excluding any existing public right of way. (See typical examples in Attachment One).
002.01F DISCONTINUED SIGN: An advertising device or structure that meets one or both of the following criteria:
002.01F1 Is blank displaying no copy for a period of twelve consecutive months or more. The sign shall be considered blank displaying no copy even when the sign owner displays a message noting the sign space is available for sale or lease.
002.01F2 Is erected on land not owned by the sign owner for which the sign owner has no current written agreement.
002.01G ERECT: To construct, build, raise, assemble, place, affix, attach, create, paint, draw or in any other way bring into being or establish. Erect shall not include maintenance as defined in 002.01M but shall include reconstruction, as defined in 002.01Y, and shall also include modification, as defined in 002.01N, to an existing sign or structure. It shall not include any of the foregoing activities when performed as an incident to the change of an advertising message or the maintenance of the sign structure.
002.01H HIGHWAY: A road or street, including the entire area within the right of way, which has been designated a part of the state highway system.
002.01I HIGHWAY BEAUTIFICATION CONTROL SYSTEM (HBCS): The National System of Interstate and Defense Highways, the system of federal-aid primary roads as they existed on June 1, 1991, any additional highway or road which is designated as a part of the National Highway System under the Federal Intermodal Surface Transportation Efficiency Act of 1991, and scenic byways.
002.01J INDUSTRIAL ACTIVITY: Those activities generally recognized as industrial by zoning authorities in this state and having adequate access, parking and utilities, except that none of the following shall be considered industrial:
002.01J1 Outdoor advertising structures;
002.01J2 General agricultural, forestry, ranching, grazing, farming, and related activities, including wayside fresh produce stands;
002.01J3 Activities normally or regularly in operation less than three months of the year;
002.01J4 Activities conducted in a building principally used as a residence;
002.01J5 Railroad tracks and minor sidings;
002.01J6 Activities more than six hundred sixty feet from the nearest edge of the right of way of the road or highway.
002.01K INTERSTATE SYSTEM: The National System of Interstate and Defense Highways as defined in and designated pursuant to Subsection (d) of Section 103 of Title 23, United States Code.
002.01L KERR AREA: Kerr Area shall mean that area adjacent to an Interstate Highway where it traverses commercial or industrial zones, within the boundaries of incorporated municipalities, as such boundaries existed on September 21, 1959, wherein the use of real property adjacent to the Interstate System is subject to municipal regulation or control, or where it traverses other areas where the land use as of September 21, 1959, was clearly established by State law as industrial or commercial.
002.01M MAINTENANCE: The routine ordinary repairing or restoring of the sign to its as constructed condition with the same type of materials used in the original sign structure and face. Nonconforming signs must remain essentially the same as they were on the date they became nonconforming. Maintenance is permitted; however, reconstruction and modification is prohibited. The following shall constitute a substantial change to a sign and are therefore not maintenance of a sign:
002.01M1 Any change in the location of the sign.
002.01M2 Any increase in the size or dimensions of the sign.
002.01M3 The addition of a new sign face or faces.
002.01M4 Any change in the type of structural face material.
002.01M5 The replacement of the sign supports with sign supports of a different material than material found on the sign when it became grandfathered.
002.01M6 Covering the original sign supports with concrete, metal or wood for whatever purpose.
002.01M7 Any replacement of poles that exceeds 25 percent per year or if less than four poles, one pole per year.
002.01M8 An increase in the number of poles.
002.01L9 An increase in the height of the poles.
002.01M10 Adding or converting the sign to a variable or changeable message sign.
002.01M11 Any addition of lighting, either attached or unattached.
002.01L12 No modification that changes the existing lighting such that the illumination to the sign facing is substantially increased.
002.01M13 No addition of reflective material on the sign.
002.01M14 No modification that enhances the visibility of the sign’s message or the period of time that the sign’s message is visible.
002.01M15 No addition of any other devices.
002.01N MODIFICATION: Any addition to or any substantial change in the dimensions, lighting, structure or advertising face, except as incidental to maintenance, as defined in 002.01M. A lawful change in advertising message is not a modification. The use of a vinyl overlay or wrap on either a poster panel or painted unit is a change in advertising message, not a modification.
002.01O MUSEUM: A public or private nonprofit institution which is organized on a permanent basis for essentially education or aesthetic purposes and which, using a professional staff, owns or uses tangible objects, either animate or inanimate, cares for these objects, and exhibits them to the general public on a regular basis. A museum is considered to meet these requirements if: (1) it uses a professional staff by employing at least one staff member, or part-time equivalent, working at least 300 hours per year, whether paid or unpaid; (2) this staff person is primarily engaged in the acquisition, care or exhibition to the public of objects owned or used by the institution; and (3) it exhibits objects to the public through the facility it owns or operates.
002.01P NEAREST EDGE OF THE RIGHT OF WAY: Is that one point when the right of way of two intersecting roads, streets or highways meets. It shall also mean the two points nearest the intersection when the right of way of the two intersecting roads, streets or highways has multiple angles before intersecting or forms a curve.
002.01Q NONCONFORMING SIGN: A sign which was lawfully erected, but does not comply with the provisions of the State Law or State Rules and Regulations. Signs located on public right of way are not nonconforming signs whether the right of way has been designated a part of the highway system or the right of way was acquired in fee by the Nebraska Department of Transportation. Nonconforming signs must remain essentially the same as they were on the date they became nonconforming. Maintenance is permitted; however, reconstruction is prohibited. Changes to the physical structure of the sign other than a change of message or maintenance, must be accomplished in accordance with the requirements noted in 002.01M Maintenance.
002.01R OBSOLETE SIGNS: Signs that advertise a business no longer in existence or a product no longer offered for sale and have advertised such business or product for a period of one year after the termination of the existence of such business or the termination of sale of the product advertised.
002.01S ON-PREMISE/ON-PROPERTY SIGN: An advertising device which solely advertises the sale or lease of the real property upon which it is placed, or an advertising device identifying the activities located on or products or services available on the premise/property. The following shall be used for determining whether a device has as its purpose the identification of the activity located on the premise/property or its products or services.
002.01S1 Any sign which consists solely of the name of the establishment.
002.01S2 Any sign which identifies the establishment’s principal or accessory products or services offered on the premise/property. An example of an accessory product would be a brand of tires offered for sale at a service station.
002.01S3 Any sign which advertises the sale or lease of the property.
002.01S4 The following shall be considered the business of outdoor advertising and not an on-premise/on-property sign:
002.01S4a Any sign which brings in rental income to the premise/property and/or sign owner.
002.01S4b Any sign in which the product or service advertised is only incidental to the principal activity.
002.01S4c Variety seed signs, fertilizer signs, and other agricultural product signs are not on-premise/on-property signs.
002.01S4d A sale or lease sign which also advertises any product or service not located upon and unrelated to the business of selling or leasing the land on which the sign is located.
002.01S4e Any sign which solely advertises the sale or lease of the property upon which it is placed, but which also identifies a corporation or business activity as the property owner more conspicuously than the for sale or lease message.
002.01S4f Any sign which advertises any product, activity or service not conducted, not available, not offered or not produced on the property where the sign is located.
002.01T PARKLAND: Any publicly-owned land which is designated or used as a public park, recreation area, wildlife or waterfowl refuge or historic site.
002.01U PREMISES: All or a portion of the property occupied by the buildings, parking lots, storage or processing areas, other structures or other physical uses that are necessary and customary to the activity, including such open spaces as are arranged and designed to be used in connection with such buildings or uses.
002.01U1 Except for farms and ranches, the following will not be considered to be a part of the premises on which the activity is conducted, and any signs located on such land will be considered “off-premise” advertising:
002.01U1(a) Any property, building, structure, or other improvement which is not used as an integral part of the principal activity. This would include, but not be limited to, any land which is separated from the activity by a public road, railroad, river, or other obstruction and is not used by the activity as a part of the premises; and land that is undeveloped highway frontage adjacent to the land actually used by the advertised activity, even though it might be under the same ownership.
002.01U1(b) Any property, building, structure, or other improvement which is used for, or devoted to, a separate use is not a part of the premises on which the activity is conducted even though under the same ownership.
002.01U1(c) Any property, building, structure, or other improvement which is separated from the principal activity, and is developed or used only at the sign site by structures or uses which are only incidental to the principal activity, and which serves no reasonable or integrated purpose related to the activity other than to attempt to qualify the land for signing purposes.
002.01U1(d) Where the sign site is located at or near the end of a narrow strip contiguous to the advertised activity, the sign site shall not be considered part of the premises on which the activity being advertised is conducted. A narrow strip shall include any configuration of land which is such that it cannot be put to any reasonable use related to the activity other than for signing purposes. In no event shall a sign site be considered part of the premises on which the advertised activity is conducted if it is located upon a narrow strip of land that is:
002.01U1(d)(1) nonbuildable, such as a swampland, marshland, or other wetland, or;
002.01U1(d)(2) which is a common or private roadway, or;
002.01U1(d)(3) held by easement or other lesser interest than the premise where the advertised activity is located.
002.01V PRIMARY SYSTEM: The Primary Roads, Streets and Highways, whether a part of the State Highway System, County Road Systems or city streets, which have been designated as Federal-Aid Primary Roads by the Department and approved by the Secretary of Transportation of the United States on June 1, 1991, and shown on the maps provided for in 39-1311 Neb. Rev. Stat.
002.01W PUBLIC SERVICE MESSAGE: Time, date, temperature, weather, or any other noncommercial message the sign owners(s) or sign tenant(s) may wish to display. If the message brings in any rental income or any type of compensation to the sign owner(s) or tenant(s) or if the information being displayed relates to trade or business or has financial gain, profit, or wealth as an aim, the sign message will be considered to be commercial advertising rather than public service information.
002.01X PROPERTY: An area of land under one ownership not severed by a public road. A tenant’s property is that area described in the lease in which the owner has given the right of possession to the tenant for a specified term and for a specified consideration.
002.01X1 A subdivided property is considered to be one property if all lots remain under common ownership and all lots share a common, private access to public roads. However, if any of the subdivided property is sold or disposed of in any manner, that portion will be considered to be a separate property.
002.01X2 Contiguous lots or parcels of land combined for development purposes are considered to be one property for outdoor advertising control purposes provided they are under one ownership.
002.01X3 The following will not be considered to be a part of the property on which the activity is conducted, and any signs located on such land will be considered “off-premise” advertising:
002.01X3(a) Any property leased to another.
002.01X3(b) Any property encumbered with an easement, exclusive of sub surface utility easements.
002.01X3(c) Where the sign site is located at or near the end of a narrow strip contiguous to the advertised activity, the sign site shall not be considered part of the property on which the activity being advertised is conducted. A narrow strip shall include any configuration of land which is such that it cannot be put to any reasonable use related to the activity other than for signing purposes. In no event shall a sign site be considered part of the property on which the advertised activity is conducted if it is located upon a narrow strip of land that is:
002.01X3(c)(1) nonbuildable, such as a swampland, marshland, or other wetland, or
002.01X3(c)(2) which is a common or private roadway, or
002.01X3(c)(3) held by easement or other lesser interest than the premise where the advertised activity is located.
002.01Y RECONSTRUCTION: Defined as erect in 002.01G.
002.01Z ROAD: A public way for the purposes of vehicular travel, including the entire area within the right of way. This includes any other terms used to describe roads, such as parkway, lane, avenue, boulevard or any other term not listed but in which the public way is used for the purpose of vehicular travel. A road designated as a part of the state highway system may be called a highway, while a road in an urban area may be called a street.
002.01AA SCENIC AREA: Any area of particular scenic beauty or historical significance as determined by the Federal, State, or local officials having jurisdiction thereof, and includes interests in land which have been acquired for the restoration, preservation, and enhancement of scenic beauty.
002.01BB SCENIC BYWAY: A road, highway, or connecting link designated as scenic byway pursuant to Section 39-217. A map of the scenic byways shall be maintained as provided in Section 39-1311. For additional information see 002.14.
002.01CC SCHOOL DISTRICT, COUNTY OR MUNICIPAL RECOGNITION SIGN: An official recognition sign erected and maintained by a school district, county or municipality within its territorial or zoning jurisdiction. The recognition sign for a school district is limited to displaying a message that identifies the school district, its boundaries, its services, its functions or activities that are located therein. The recognition sign for a county or municipality is limited to displaying a message that identifies the county or municipality, its boundaries, its public services and noncommercial attractions, functions or activities that are located therein.
002.01DD SIGN: Any outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard, or other thing, whether placed individually or on a V-type, back-to-back, stacked or double-faced display, designed, intended or used to advertise or inform; with any part of the advertising or informative content visible from any place on the main-traveled way of the HBCS.
002.01EE SIGN MEASUREMENT: The area of a sign shall be measured by the smallest square, rectangle, triangle, circle, or combination thereof, which will encompass the entire sign, including boarder and trim, but will exclude ornamental base or apron and other structural members unless such areas include advertising content. For any other object used as a sign, such as a message painted on a building, other facility or object, the area of the message shall be measured by the smallest square, rectangle, triangle, circle, or combination thereof, which will encompass the entire message, figure, painting, or drawing that is designed, intended or used to gain public attention. Measure the entire object if the object is designed, intended, or used as a sign to gain public attention.
002.01FF TRAVELED WAY: That portion of the roadway used for the movement of vehicles, exclusive of shoulders and auxiliary lanes.
002.01GG URBAN AREA: That area designated as a town, village, city or municipality or that urban place as designated as an urban area by State or local officials as approved by the U.S. Secretary of Transportation.
002.01HH UNZONED COMMERCIAL OR INDUSTRIAL AREA: For purposes of control of outdoor advertising, shall mean all areas within six hundred sixty feet of the nearest edge of the right of way of the HBCS which are not zoned by the state or local law, regulation or ordinance and on which there is located one or more permanent structures devoted to a business or industrial activity or on which a commercial or industrial activity is conducted, whether or not a permanent structure is located thereon, the area between such activity and the highway, and the area along the highway extending outward six hundred feet from and beyond each edge of such activity, and in the case of the non-Interstate highway routes on the HBCS may include the unzoned lands on both sides of such road or highway to the extent of the same dimensions: Provided, those lands on the opposite side of the highway are not deemed scenic or having aesthetic value as determined by the department. In determining such an area, measurements shall be made from the furthest or outermost edges of the regularly used area of the commercial or industrial activity, structures, normal points of ingress and egress, parking lots, storage and processing areas constituting an integral part of such commercial or industrial activity. (39-1302(41) Neb.Rev.Stat.)
002.01II VISIBLE: Visible, as used in reference to advertising signs, displays, or devices, shall mean the message or advertising content of such sign, display, or device is capable of being seen without visual aid by a person of normal visual acuity. A sign shall be considered visible even though the message or advertising content may be seen but not read.
002.01JJ ZONING: Local zoning actions must be taken pursuant to the State’s zoning enabling statute(s) or constitutional authority and in accordance therewith. Action which is not a part of comprehensive zoning or is created primarily to permit outdoor advertising structures is not recognized as zoning for outdoor advertising control purposes.
002.02 PROHIBITED CONTROL OF ADVERTISING OUTSIDE OF RIGHT OF WAY: In accordance with the 1968 agreement between the Department of Transportation and the Federal Highway Administration, authorized by 39-213 Neb.Rev.Stat., the erection or maintenance of any sign, display or device adjacent to the HBCS of the State of Nebraska, and visible from the main-traveled way of such highway or road, is hereby prohibited unless in compliance with these Rules.
002.03 CLASS I SIGNS Official signs that are authorized or required by law and which are either, placed within the right of way by the Nebraska Department of Transportation, specifically categorized in this rule as Class IB or Class IC signs, or owned by public offices or agencies and maintained within their zoning jurisdiction pursuant to Federal, State or local law for the purpose of carrying out official duties.
002.03A CLASS IA SIGNS: Official traffic signs and notices located within the right of way of the HBCS erected by or at the direction of the Nebraska Department of Transportation, or a local governmental agency authorized by law to erect official signs.
002.03A1 Class IA Signs and notices are hereby excluded from the restrictions and requirements of these rules and regulations and do not require a permit.
002.03A2 The Nebraska Department of Transportation, will have the exclusive power to determine which signs meet the requirements of a Class IA Sign.
002.03B CLASS IB SIGNS: Official signs and notices, authorized or required by law, erected outside of the right of way of the Interstate System and categorized as: signs identifying underground utilities, danger and warning signs, no trespassing signs, private property signs, no hunting signs, zoning revision notices, signs required by the Occupational Safety and Health Act, signs required on federally funded projects, historical markers and plaques, and wildlife refuge area identification signs.
002.03B1 Class IB Signs and notices shall not advertise any product or service.
002.03B2 Signs, satisfying the requirements of Class IB Signs but not specifically categorized as Class IB Signs, can only be erected by or at the direction of the State of Nebraska, Department of Transportation, and in accordance with the policy for scenic drive vacation routes or attraction guide signing approved by the Director of the Nebraska Department of Transportation.
002.03B3 Class IB Signs shall be located in such a manner as not to endanger the health, safety and welfare of the traveling public. They shall not obstruct the view of oncoming traffic or any traffic control devices.
002.03B4 Permits are not required for Class IB Signs.
002.03B5 Class IB signs shall conform to lighting criteria in Section 002.08.
002.03C CLASS IC SIGNS: Signs erected outside the right of way of the HBCS, except the Interstate which are required by governmental officials in performing their official duties, and those signs which are notices to inform the general public, or notices required by local laws or ordinances. Class IC Signs are further categorized as signs identifying underground utilities, danger or warning signs, no trespassing signs, private property signs, no hunting signs, zoning revision notices, signs required by the Occupational Safety and Health Act, signs required on federally funded projects, historical markers and plaques and wildlife refuge area identification signs.
002.03C1 Class IC Signs and notices shall not advertise any product or service.
002.03C2 Class IC Signs have no spacing or size restrictions or requirements. They shall be located in such a manner as not to endanger the health, safety and welfare of the traveling public. They shall not obstruct the view of oncoming traffic or any traffic control devices.
002.03C3 Permits are not required for Class IC Signs.
002.03C4 Class IC Signs shall conform to lighting criteria in Section 002.08.
002.03D CLASS ID SIGNS: Signs or notices that are owned and maintained by public offices or public agencies within their territorial jurisdiction and are erected pursuant to and in accordance with direction or authorization contained in Federal, State or local law for the purpose of carrying out official duties or responsibilities. The following criteria must be met to erect a Class ID sign:
002.03D1 The public officer or agency must be responsible for the erection and maintenance of the sign.
002.03D2 The sign must be erected within the territorial jurisdiction of the public officer or agency. This means that the officer or agency must exercise some form of governmental authority over the area upon which the sign and activity is located. Governmental authority means the authority to enact or administer the law.
002.03D3 The sign must be erected pursuant to direction or authorization contained in Federal, State or local law. School District, County or Municipal Recognition Signs are presumed to meet this criterion.
002.03D3(a) This means the officer or agency must be directed or have specific authority by statute, resolution or ordinance to erect and maintain signs and notices.
002.03D3(b) Copies of the statute, resolutions or ordinances must be submitted with the application for the sign permit.
002.03D3(c) Statutes, resolutions or ordinances must specifically address the following:
002.03D3(c)(1) What jurisdiction of government will own, erect and be responsible for the maintenance of the sign.
002.03D3(c)(2) What specific official duty or responsibility will be aided or supported by the erection of the sign.
002.03D3(c)(3) Describe what form of governmental authority is exercised over this location.
002.03D4 The sign must be erected for the purpose of carrying out an official duty or responsibility.
002.03D4(a) Official duty or responsibility means to publicly provide for services, education, safety, transportation, health, welfare, parks, culture, recreation, and cemetery purposes and the operation of government.
002.03D4(b) Specific subject matter relating to a private individual, a commercial product, a private activity, will not be recognized as an official sign or notice.
002.03D4(c) There are no restrictions on the message content so long as the activity being described is in furtherance of an official duty or responsibility.
002.03D4(d) Appropriate emblems or messages of nonprofit service clubs or charitable associations, or their location, or the hours of their meetings or services are considered to be a furtherance of an official duty or responsibility, provided these messages are displayed in addition to the message displayed for the pubic officer or agency and the message for each individual organization is limited to eight square feet on the combined structure. Otherwise the appropriate emblems or messages of nonprofit service clubs or charitable associations must be placed on a Class IVB Sign as described in 002.06C.
002.03D5 Class ID Signs must have a permit from the Nebraska Department of Transportation.
002.03D6 Class ID Signs shall be located in such a manner as not to endanger the health, safety and welfare of the traveling public. They shall not obstruct the view of oncoming traffic or any traffic control devices.
002.03D7 Class ID Signs have no spacing or size restrictions or requirements.
002.03D8 Class ID Signs shall conform to the lighting criteria in Section 002.08.
002.03E CLASS IE SIGNS: Official signs that mark or designate school bus shelters.
002.03E1 Class IE Signs shall not exceed thirty-two square feet in area nor shall more than fifty percent of the sign be used to display the name of the sponsor or donor. The remainder of the sign must contain a public service message.
002.03E2 Not more than one sign shall be placed on each school bus shelter facing each direction of travel.
002.03E3 The school bus shelter location must be approved by the governmental authority controlling the highway and any other governmental agencies having jurisdiction over such school bus shelters.
002.03E4 Class IE Signs must have a permit from the Nebraska Department of Transportation.
002.03E5 Failure to use a school bus shelter regularly will be cause for revocation of a the permit and removal of the entire message from the shelter.
002.03E6 Class IE Signs shall conform to lighting criteria in Section 002.08.
002.03F CLASS IF SIGNS: Temporary signs erected outside the Right of Way to notify the traveling public that free coffee is available at the next interchange or rest area.
002.03F1 Class IF Signs can only be erected by non-profit organizations on private property with written permission from the landowner and a letter of authorization from the Nebraska Department of Transportation, Right of Way Division.
002.03F2 Class IF Signs shall bear the message: “safety break free coffee.” Maximum sign size shall be four feet by twelve feet with ten-inch letters, or four feet by five feet with six-inch letters.
002.03F3 Class IF Signs shall remain in place during the time the coffee is available. Free will donations may be accepted for the coffee at the location where the coffee is served. Arrangements for use of the Rest Area, for serving free coffee, must be made with the Nebraska Department of Transportation, District Engineer, having jurisdiction over the rest area.
002.03F4 Class IF Signs shall conform to lighting criteria in Section 002.08.
002.04 CLASS II SIGNS On-Premise/On-Property Signs - Signs that advertise the sale or lease of the property upon which the sign is located (Class IIA and Class IIB), or that advertise the sale of goods and services available on that property (Class IIC, Class IID and Class IIE), or that advertise the sale of goods and services available on the premises (Class IIF).
002.04A CLASS IIA SIGNS: Signs located upon and advertising the sale or lease of property adjacent to or visible from the main-traveled way of the Interstate System.
002.04A1 Class IIA Signs which are erected, maintained or allowed to exist must have a permit from the Department of Transportation.
002.04A2 Class IIA Signs conform to lighting criteria in Section 002.08.
002.04A3 Class IIA Signs - Spacing Requirement.
002.04A3(a) No more than one Class IIA Sign shall be permitted for each property within the Bonus Area along the Interstate System in such a manner as to be visible to traffic proceeding in any one direction on the Interstate System.
002.04A3(b) Class IIA Signs shall not be erected within fifty feet of the nearest edge of the right of way of an intersecting public road, street or highway within the corporate limits of a municipality. Nor shall Class IIA Signs be erected nearer than one hundred feet from the nearest edge of the right of way of an intersecting public road, street, or highway outside the corporate limits of a municipality.
002.04A3(c) Class IIA Sign - Size Requirement - The message on Class IIA Signs must contain the words “for sale,” “for rent,” or “for lease,” and may exhibit trade names, names of owners, or sales agents with a maximum of eight inch copy. Class IIA signs shall be no larger than 20 feet in length, width or height nor exceed one hundred and fifty square feet in area.
002.04B CLASS IIB SIGNS: Signs located upon and advertising the sale or lease of property adjacent to or visible from the main-traveled way of the HBCS, except the Interstate.
002.04B1 Permits are not required for Class IIB signs.
002.04B2 Class IIB Signs shall conform to lighting criteria in Section 002.08.
002.04C CLASS IIC SIGNS: Those signs which are located within the Bonus Area upon property adjacent to or visible from the main-traveled way of the Interstate System, located more than fifty feet from the premises, and which advertise products or services available on the property. A property may have more than one advertised premise conducting business on the property, however, there shall only be one Class IIC sign allowed for the property.
002.04C1 Class IIC Signs which are erected, maintained or allowed to exist must obtain a permit from the Department of Transportation.
002.04C2 Class IIC Signs - Spacing Requirements - No property shall be permitted to erect more than one Class IIC Sign in a Bonus Area in such a manner as to be visible to traffic proceeding in any one direction on the Interstate System.
002.04C3 Class IIC Signs - Size Requirements - Class IIC Signs located in Bonus Areas shall be no larger than 20 feet in length, width or height nor exceed one hundred and fifty square feet in area. Any of these signs located in Cotton or Kerr Areas must comply with Class IID requirements.
002.04C4 Class IIC Signs shall conform to the lighting criteria in Section 002.08.
002.04D CLASS IID SIGNS: Those signs located upon property adjacent to and visible from the main-traveled way of the HBCS, except the Interstate or located upon property in the Kerr or Cotton Areas and visible from the main-traveled way of the Interstate System, which advertise products or services available on the property.
002.04D1 Permits are not required for Class IID Signs.
002.04D2 Class IID Signs may change their message at reasonable intervals by electronic process or remote control, provided they advertise only goods or services available on the property or give public service messages.
002.04D3 On-Premise Signs placed adjacent to the HBCS, except the Interstate but within the Bonus Area along the Interstate System, must comply with Class IIC Sign requirements enumerated in Section 002.04C.
002.04D4 Class IID Signs shall conform to the lighting criteria in Section 002.08.
002.04E CLASS IIE SIGNS: Those farm or ranch signs which are located upon property adjacent to or visible from the main-traveled way of the HBCS, except the Interstate, which advertise products or services available on the property.
002.04E1 Permits are not required for Class IIE signs.
002.04E2 Class IIE Signs must be located on property owned or leased for farming or ranching operations. Narrow strips of land contiguous to the farm or ranch and leased for the purpose of placing signs will not be considered for Class IIE Signs.
002.04E3 Signs which advertise a product used by a farmer or rancher will not be considered On-Premise Signs and must comply with the standards for Class III Signs. Trade names are allowed if the farmer or rancher is a bona-fide dealer with the merchandise for sale and no compensation of any type is received for placing the sign on the farm or ranch property.
002.04E4 Farm On-Premise Signs placed within the Bonus Area along the Interstate System must comply with the Class IIC standards.
002.04E5 Class IIE Signs shall conform to the lighting criteria in Section 002.08.
002.04F CLASS IIF SIGNS: Those signs which are located within the Bonus Area on the premises adjacent to or visible from the main-traveled way of the Interstate System and which advertise products or services available on the premises. A property may have more than one premise.
002.04F1 Permits are not required for Class IIF signs.
002.04F2 There are no size or spacing requirements for Class IIF signs.
002.04F3 Class IIF signs shall conform to the lighting criteria in Section 002.08.
002.05 CLASS III SIGNS
002.05A Class III Signs are those signs located in zoned and unzoned commercial and industrial areas which are not classified as either Class I, Class II, Class IV or Class V Signs.
002.05B All signs located within urban areas and more than six hundred and sixty feet from the edge of the right of way of the HBCS are exempt from these Regulations.
002.05C Conforming Class III Signs - Restrictions and Requirements
002.05C1 All Class III Signs must obtain a permit from the Nebraska Department of Transportation.
002.05C2 The lighting for Class III Signs must comply with the requirements set forth in Section 002.08 of these Rules and Regulations.
002.05C3 Class III Signs - Size Requirements.
002.05C3(a) The maximum area for any Class III advertising sign shall be one thousand square feet.
002.05C3(b) These Rules and Regulations shall not prevent the erection of a double faced, stacked, back-to-back, side-by-side or V-type construction with a maximum of two sign faces per side with the maximum area of one thousand square feet allowed for each side. Such signs must be physically connected and of substantially the same size and under the same ownership.
002.05C4 Class III Signs - Spacing Requirements.
002.05C4(a) Primary HBCS, except for the Interstate, System - Class III Signs must be located in properly zoned or unzoned areas with spacing as follows:
002.05C4(a)(1) Inside the Corporate Limits of a Municipality - The number of sign structures on the same side of the HBCS, except for the Interstate, within zoned or unzoned commercial or industrial areas shall not exceed the length of the frontage as measured along the centerline of the highway divided by one hundred feet, providing that structures shall be spaced at least one hundred feet apart. Such spacing shall be measured along and parallel to the centerline of the highway and providing further that no sign shall be permitted in an area fifty feet parallel to the existing right of way line and within fifty feet from the nearest edge of the right of way.
002.05C4(a)(2) Outside the Corporate Limits of a Municipality - The number of sign structures on the same side of the HBCS, except for the Interstate, within zoned or unzoned commercial or industrial areas shall not exceed the length of the frontage as measured along the centerline of the highway divided by two hundred and fifty feet, providing that structures shall be spaced at least two hundred and fifty feet apart. Such spacing shall be measured along and parallel to the centerline of the highway and providing further that no sign shall be permitted in an area one hundred feet parallel to the existing right of way line and within one hundred feet from the nearest edge of the right of way.
002.05C4(a)(3) Exceptions - These spacing provisions do not apply to signs separated by a building or structure in such a manner that only one sign located within the prescribed spacing is visible from the highway at any one time.
002.05C4(b) Interstate System - Class III Signs must be located in Cotton or Kerr Areas with spacing as follows:
002.05C4(b)(1) Inside the Corporate Limits of a Municipality - Signs along the Interstate Highways shall not be erected or maintained in any place where they are visible from the main- traveled way of the National System of Interstate and Defense Highways, where they are closer than two hundred and fifty feet to another sign structure on that side of the highway. Such spacing shall be measured along and parallel to the centerline of the Interstate.
002.05C4(b)(2) Outside the Corporate Limits of a Municipality - No sign may be located within interchange areas and within five hundred feet of the point where traffic enters or leaves the main-traveled way (measuring along the Interstate from the sign to the nearest widening constructed for the purpose of acceleration or deceleration of traffic movement to or from the main-traveled way) and no sign shall be erected so that it is located closer than five hundred feet to another sign structure on that side of the highway. Such spacing between signs shall be measured parallel to the centerline of the Interstate.
002.05C4(b)(3) Areas in which advertising control easements have been acquired: No Class III advertising sign, display or device shall be permitted.
002.05D CHANGEABLE MESSAGE SIGN (CMS): An outdoor advertising sign, display or device which changes the message or copy on the sign by electronic or mechanical device or process, regardless of the technology used. CMS are considered outdoor advertising signs and subject to all applicable regulations and subject to the following:
002.05D1 CMS must conform to general spacing requirements of 002.05C4 and the specific spacing requirements of 002.05D2.
002.05D2 No two (2) CMS structures may have sign facings erected less than five thousand (5000) feet apart measured from the center of the sign supports nearest the highway along a line parallel with the highway. CMS structures may be located on either side of the highway; however, each sign must only be visible from one direction of travel and must comply with the 5,000-foot spacing on each side.
002.05D3 CMS structures must conform to the size requirements of 002.05C3.
002.05D4 Conforming sign structures may be modified to a CMS upon compliance with CMS standards and obtaining a permit in accordance with 002.12.
002.05D5 Nonconforming sign structures will not be modified to a CMS.
002.05D6 Each advertisement displayed must remain fixed for at least ten (10) seconds. If there is more than one advertisement per face, then when any advertisement changes, the entire face shall remain fixed for ten (10) seconds.
002.05D7 When an advertisement is changed, it must be accomplished with an interval of two (2) seconds or less.
002.05D8 CMS must contain a default mechanism that will freeze the sign in one position if a malfunction occurs.
002.05D9 CMS shall be constructed as a single structure with only one face intended to be visible from each direction of travel, as viewed from a point 100 feet from the centerline of the sign measured horizontally along a line normal or perpendicular to the centerline of the highway.
002.05E NONCONFORMING CLASS III SIGNS: Class III Signs that do not meet the size, lighting, and spacing requirements, or are not located in properly zoned or unzoned commercial or industrial areas.
002.05E1 These rules and regulations shall not be construed to require the purchase of Nonconforming Class III Signs by the Nebraska Department of Transportation if such signs were lawfully in existence on March 27, 1972, and located within zoned or unzoned commercial and industrial areas as defined in 39-1302 Neb.Rev.Stat.
002.05E2 Nonconforming Class III Signs, other than those described in Section 002.05E1 above, will be subject to purchase as required by the Nebraska Department of Transportation as funds become available.
002.06 CLASS IV SIGNS
002.06A Class IV Signs are those signs containing directional information.
002.06B CLASS IVA SIGNS: Signs containing directional information about public places owned or operated by federal, state or local governments or their agencies; publicly or privately-owned natural phenomena or historical, cultural, scientific, educational or religious sites; or publicly or privately-owned areas of natural scenic beauty or naturally suited for outdoor recreation.
002.06B1 Eligibility Requirements. Privately-owned attractions or activities, noted in 002.06B, must be nationally or regionally known and of outstanding interest to the traveling public.
002.06B1(a) To be nationally or regionally known all privately-owned activities or sites shall be on the National Register of Historic Places or determined eligible for the National Register of Historic Places by the State Historic Preservation Officer, except for private nonprofit museums.
002.06B1(b) To be of outstanding interest to the traveling public all privately-owned activities and sites and private nonprofit museums shall have at least an annual visitor count of 1,500.
002.06B1(c) All public places owned or operated by federal, state or local governments or their agencies, including publicly-owned museums, are presumed to be nationally or regionally known and of outstanding interest to the traveling public.
002.06B2 SIGN SIZE REQUIREMENTS
002.06B2(a) Shall not exceed the following dimensions:
002.06B2(a)(1) AREA: 150 square feet 002.06B2(a)(2) Height: 20 feet 002.06B2(a)(3) Length: 20 feet
002.06B2(b) These dimensions include border and trim, but exclude supports.
002.06B3 SIGN LIGHTING REQUIREMENTS See Section 002.08 Lighting.
002.06B4 Sign Spacing and Location Requirements.
002.06B4(a) Shall be located off the highway right of way.
002.06B4(b) The sign for a privately-owned activity or site shall not be located in a publicly-owned rest area, parkland or scenic area.
002.06B4(c) Shall not be located within:
002.06B4(c)(1) The adjacent area on either side of the HBCS within 2,000 feet of a publicly-owned rest area, parkland or scenic area, as measured horizontally along a line normal or perpendicular to the centerline of the highway. The measurement shall begin at the property line of the publicly-owned rest area, parkland or scenic area.
002.06B4(c)(2) The adjacent area on either side of the HBCS within 2,000 feet of an interchange of any Interstate or freeway. This distance is measured along the HBCS from the nearest point of the beginning or ending of pavement widening at the entrance to or exit from the main traveled way.
002.06B4(d) Signs facing the same direction of travel shall be spaced at least one mile apart from any other Class IVA Sign.
002.06B4(e) No more than three directional signs pertaining to the same activity or site and facing the same direction of travel may be erected along a single route approaching the activity or site.
002.06B4(f) A sign visible from an Interstate highway shall be within 75 air miles of the activity or site it identifies.
002.06B4(g) A sign visible from any HBCS, except the Interstate, shall be within 50 air miles of the activity or site it identifies.
002.06B4(h) The location of the sign shall be subject to approval by the Nebraska Department of Transportation.
002.06B4(i) If there are two or more qualifying requests, and space limitations will not permit the installation of signs for all requests, requests shall be approved on a first-come first-served basis.
002.06B5 SIGN MESSAGE CONTENT
002.06B5(a) The message shall include the identification of and direction to the activity or site.
002.06B5(b) The message may contain directional information to assist motorists in locating the activity or site, including route numbers and exit numbers.
002.06B5(c) The message for an area naturally suited for outdoor recreation shall list the types of recreational opportunities available.
002.06B5(d) The message shall not contain additional words or phrases descriptive of the activity or site, pictorial or photographic representations of the activity or site or its environs, or advertisements of brand name goods.
002.06B5(e) The message shall contain current information.
002.06B6 Class IVA signs must have a permit from the Nebraska Department of Transportation.
002.06C Class IVB Signs: Signs displaying a message that is limited to any of the following: the name of a nonprofit service club, charitable association, church or religious group, or its location, or the hours of its meetings or services or an appropriate emblem which do not exceed 8 square feet in area. Descriptive words or phrases or pictorial representations shall not be permitted.
002.06C1 As used in Section 002.06C, nonprofit service club, charitable association, church or religious group shall mean:
002.06C1(a) Any organization that has received a 501(c)(3) tax-exemption from Internal Revenue Service, or;
002.06C1(b) Any organization that has been formed as a Public Benefit or Religious Corporation under the Nebraska Nonprofit Corporation Act, Neb. Rev. Stat. 21-1901 to 21-19,177, or;
002.06C1(c) Any organization that does not come within 002.06C1(a) or (b) of this section, but is organized for a public or charitable purpose, and upon dissolution must distribute its assets to a public benefit corporation, the United States, a state, or a person recognized as exempt under section 501(c)(3) of the Internal Revenue Code, or any successor section, or;
002.06C1(d) Any educational, religious, charitable, or cemetery organization that can provide proof of exemption from property taxes in accordance with Neb. Rev. Stat. 77-202 (d), or;
002.06C1(e) Any organization that is associated with another organization noted in 002.06C1(a), (b), (c), or (d), of this section, as a subordinate or subsidiary of the other organization and are under the authority or control of the other organization.
002.06C2 Class IVB Signs - Size
002.06C2(a) Class IVB Signs shall not exceed eight square feet in area or, when more than one organization erects a combination structure, the size of the structure is limited to 150 square feet; however, each individual organization is limited to eight square feet on that combination structure.
002.06C2(b) No Class IVB Sign or combination of signs shall exceed twenty feet in length or height.
002.06C3 Class IVB Signs - Spacing
002.06C3(a) Class IVB Signs shall be located in such a manner as not to endanger the health, safety and welfare of the traveling public. They shall not obstruct the view of oncoming traffic or any traffic control devices. No other spacing limitations apply.
002.06C4 Class IVB Signs must have a permit from the Nebraska Department of Transportation. 002.06C5 Class IVB Signs shall conform to the lighting criteria in Section 002.08.
002.07 CLASS V SIGNS
002.07A Class V Signs are farm and ranch directional signs erected for the purpose of locating or giving direction to farms or ranches from the HBCS, except the Interstate.
002.07A1 Class V Signs located within the corporate limits of any municipality must be placed at least fifty feet from the right of way of any intersecting public road, street, or highway or located in such a manner as not to obstruct the view of oncoming traffic or any traffic control signs or devices.
002.07A2 Class V Signs located outside the corporate limits of any municipality must be placed at least one hundred feet from the right of way of any public road, street or highway or located in such a manner as not to obstruct the view of oncoming traffic or any traffic control signs or devices.
002.07A3 Class V Signs shall display only the name of the farm, ranch, or the owner of such farm or ranch and the direction and distance thereto.
002.07A4 Class V Signs shall not exceed an area of eight square feet. When used in combination with other signs on one structure, the combined signs shall not exceed an area of one hundred and fifty square feet, provided no individual sign shall exceed eight square feet.
002.07A5 On the HBCS, except the Interstate, Class V Signs must be placed outside of the right of way and within one mile preceding the intersection leading to the activity.
002.07A6 Class V Signs shall not be allowed to be placed along the Interstate System.
002.07A7 Class V Signs shall not be erected, maintained or allowed to exist without obtaining a permit from the Department of Transportation.
002.07A8 Class V Signs shall conform to the lighting criteria in Section 002.08.
002.08 LIGHTING
002.08A All signs may be illuminated subject to the following restrictions.
002.08B Illuminated signs must be effectively shielded to prevent beams or rays of light from being directed at any portion of the traveled way of the HBCS or which are of such intensity or brilliance as to cause glare or to impair the vision of the driver of a motor vehicle, traveling on the above mentioned highways or which otherwise interfere with a driver’s operation of a motor vehicle, when traveling on said highways.
002.08C Signs which contain or are illuminated by flashing, intermittent, or moving light or lights are prohibited except for the following signs:
002.08C1 Signs which change their message at reasonable intervals by electronic process or remote control giving public service information, or time, date, temperature, or weather. On-Premise Signs advertising goods or services available on the premises shall not contain or be illuminated by beacons, strobe lights or other bright flashing lights.
002.08C2 Class IIA, Class IIB, Class IIC, Class IID, Class IIE, and Class IIF Signs if they comply with the requirements of 60-6,127 and 60-6,128 Neb.Rev.Stat. provided such signs shall not contain or be illuminated by beacons, strobe lights or other bright flashing lights.
002.08C3 Changeable message signs that conform to the criteria in Section 002.05D.
002.08D This rule and regulation is intended to be in addition to all other regulations of illuminated signs by other State agencies, governmental subdivision or local governmental authorities.
002.09 PROHIBITED SIGNS
002.09A The erection or maintenance of the following signs may not be permitted in controlled areas.
002.09A1 Signs advertising activities that are illegal under Federal, State or local laws or regulations at the location of the activity or site advertised.
002.09A2 Obsolete or discontinued signs.
002.09A3 Signs that are not in substantial good repair or a major portion of the message or advertising content is obscured and unreadable.
002.09A4 Signs that are not securely affixed to a substantial structure.
002.09A5 Signs which attempt or appear to attempt to direct the movement of traffic, obscure, or interfere with the effectiveness of, imitate or resemble any official traffic signal, sign or device.
002.09A6 Signs, which prevent the driver of a vehicle from having a clear and unobstructed view of official signs and approaches to intersections.
002.09A7 Signs erected or maintained upon trees or painted or drawn upon rocks or other natural formations or features.
002.09A8 Signs which move or have animated or moving parts are prohibited except for the following signs:
002.09A8(a) Class IIB Signs if they comply with all other requirements of that class.
002.09A8(b) Class IID Signs if they comply with all other requirements of that class.
002.09A8(c) Class IIE Signs if they comply with all other requirements of that class.
002.09A8(d) CMS signs, noted in 002.05D, if they comply with all the requirements of that class.
002.09A9 Signs painted, printed or mounted upon parked automobiles, trucks, trailers or a movable structure are prohibited except for the following signs:
002.09A9(a) Class IIB Signs if they comply with all other requirements of that class.
002.09A9(b) Class IID Signs if they comply with all other requirements of that class.
002.09A9(c) Class IIE Signs if they comply with all other requirements of that class.
002.10 LEASES
002.10A The sign owner shall not place or cause to be placed a sign upon land not owned by such person without first obtaining a written lease from the owner of such land. The sign owner shall furnish a copy of this lease to the Department with the application to erect a sign. A lease means an agreement, license, permit, or easement, in writing, by which possession of use of land or interest therein is given for a specific purpose.
002.11 INVENTORY AND MAP OF STATE SYSTEM
002.11A The Department of Transportation shall maintain a map showing the current HBCS. Such map shall be available for public inspection at the Department of Transportation’ Complex at 1500 Highway 2 in Lincoln, Nebraska. An inventory shall be maintained for all advertising signs within the advertising control area on the HBCS. In order that the Department may know what signs were in existence in 1972 for future cross reference, the inventory of 1972 shall be preserved in order that the Department may show signs in existence at the time of the inventory and what signs have been removed.
002.12 PERMITS
002.12A Signs Requiring Permits
002.12A1 No sign shall be erected, maintained or allowed to exist along the HBCS without a written permit, except those signs classified as Class IA, IB, IC, IIB, IID, IIE.
002.12A2 Printed sale bills less than two hundred and sixteen square inches in size shall not require a permit if otherwise conforming.
002.12A3 Where a written agreement between the Nebraska Department of Transportation and a municipal government exists allowing the municipal government to control outdoor advertising by issuing permits, only that permit will be required, but a copy of the permit will be forwarded by the sign owner to the permit officer of the Nebraska Department of Transportation.
002.12A4 A new permit is required prior to reconstruction or modification of an advertising device subject to the permit provisions of this rule, as if it were a new advertising sign.
002.12B Application for Permits
002.12B1 Applications for such permit may be obtained from the respective Nebraska Department of Transportation’ District Offices in Lincoln, Omaha, Norfolk, Grand Island, Bridgeport, North Platte, McCook and Ainsworth.
002.12B2 FORM OF APPLICATION
002.12B2(a) The application shall be made on a form provided by the Department of Transportation and shall be signed by the applicant or the applicant’s duly authorized officer or agent.
002.12B2(b) The application shall show the type, location, and description of the advertising structure or device and the dimensions of the advertising area thereof.
002.12B2(c) The application shall state the name and address of the lessor or the owner of the property on which the sign is located.
002.12B2(d) The application shall include a copy of the lease between the sign owner and the property owner, if these persons are not identical.
002.12B2(e) Prior to submitting an application, the applicant shall stake the location of the proposed sign and attach to the stake the applicant’s name and address.
002.12B2(f) Zoning Conflicts – The applicant shall furnish a copy of the approval from the local zoning authority to erect the sign, if applicable. Whenever the zoning authority of a county or incorporated city has established regulations controlling the size, lighting, and spacing of outdoor advertising signs that are stricter than the controls set forth herein then the local regulations will apply.
002.12B3 PERMIT FEE AND CONDITIONS
002.12B3(a) The fee for each original, reconstruction, modification, or renewal permit shall be fifteen dollars for each sign structure requiring a permit, none of which is refundable if the permit is revoked or cancelled by the Nebraska Department of Transportation prior to the end of the permit term, except as provided in Section 002.12B3(l).
002.12B3(b) The permit shall be renewed biennially after the date of issuance.
002.12B3(c) The permit holder must erect either a supporting structure or the entire sign within one hundred and twenty days of the date of issuance of the permit. The permit will be revoked if not exercised within one hundred and twenty days after the date of issuance, unless the holder of the permit can prove to the satisfaction of the permit officer that the delay, beyond one hundred and twenty days, is due to the failure of a local zoning authority to issue a necessary permit or the inability of the permit holder to obtain a necessary building material.
002.12B3(d) The identifying permit number issued by the Nebraska Department of Transportation, shall be displayed in a conspicuous place on each advertising device or structure, in such a manner as to be readily observable from the highway right of way.
002.12B3(d)(1) A replacement permit number will be issued by the Department to replace any number which is lost or stolen upon receipt of written notification of such fact from the permittee.
002.12B3(d)(2) A five dollar fee for each replacement permit number shall be charged by the Department.
002.12B3(e) A permit number may not be changed from one sign to another by either the Nebraska Department of Transportation or the permit holder, and upon destruction of the sign, the permit shall be cancelled and thereby be void and of no effect.
002.12B3(f) Conforming or nonconforming signs shall be maintained in accordance with the provisions of 002.01M.
002.12B3(g) A nonconforming sign which is substantially damaged by wind or acts of God shall not be repaired or re-erected until the owner has been notified by the Nebraska Department of Transportation that such sign can be repaired or re-erected.
002.12B3(g)(1) After approval of the Department, nonconforming signs which are damaged by wind or acts of God may be repaired, re-erected or acquired by the State if the cost of the repair based on new construction and overhead costs are less than sixty percent of the depreciated value of the sign. Signs which are damaged sixty percent or more cannot be rebuilt and must be removed by the sign owner without compensation.
002.12B3(g)(2) The Department’s personnel shall determine the percent of damage to the sign.
002.12B3(h) The Nebraska Department of Transportation shall be notified by the sign owner when a nonconforming sign is destroyed or substantially damaged by an act of vandalism.
002.12B3(h)(1) The Department shall have the option of acquiring the sign or permitting the re-erection of the sign.
002.12B3(h)(2) Compensation for such sign shall be based on the estimated depreciated value of the sign prior to the vandalism less cost to repair or re-erect.
002.12B3(i) Discontinued or obsolete signs
002.12B3(i)(1) A permit will not be issued for a discontinued or obsolete sign.
002.12B3(j) The granting of a permit shall not at any time be construed as conferring upon the holder any vested rights in property, real or personal.
002.12B3(k) The permittee shall notify the Nebraska Department of Transportation of the sale of any permitted sign or business entity owning a permitted sign. Written notification of such sale showing sign number, date of sale, and name and address of the transferee must be sent by the transferee to the Nebraska Department of Transportation within ninety days after the date of the sale. Failure to notify the Nebraska Department of Transportation’ Permit Officer of such transfer within the ninety-day limit shall cause the permit to be revoked and the sign shall be removed by the sign owner.
002.12B3(l) No permit fee will be charged for:
002.12B3(l)(1) Farm and ranch directional signs erected and owned by the owner of such farm or ranch, permitted as a Class V.
002.12B3(l)(2) Signs erected by governmental bodies, educational organizations, veterans organizations, civic organizations, or civic organizations not operated for profit, permitted as Class ID, IE, IVA or IVB.
002.12B4 Denial or Revocation of Permit for a Sign
002.12B4(a) The sign structure may be removed by the Nebraska Department of Transportation if the permit holder fails to renew such permit within thirty days after the expiration of the permit period.
002.12B4(b) A permit may be revoked if false or misleading information is given in the application for such permit.
002.12B4(c) A permit may be revoked for any nonconforming sign if such sign is increased in size, if additional faces are placed on the sign, or if lights are added to the sign. The sign owner then loses his right to compensation for the sign. The sign owner must then remove the sign at the owner’s expense.
002.12B4(d) A permit may be revoked for failure to attach the identifying permit number to a permitted sign.
002.12B4(e) A permit will not be renewed unless the sign has displayed advertising or informative content at some time during the previous twelve consecutive months.
002.12B4(f) The permit for a sign will be revoked if during the permit term the sign does not display advertising or informative content during any period of twelve consecutive months.
002.12B4(g) A permit may be revoked if the permit holder does not erect either the supporting structure or the entire sign within one hundred and twenty days of the date of issuance of the permit.
002.12B4(h) Maintenance of the sign from the highway right of way will be cause for revocation of the permit.
002.12B4(i) Mowing and/or damage to any vegetation, trees or shrubs within the highway right of way will be cause for revocation of the permit.
002.12B4(j) Maintenance of an advertising device in violation of the provisions of these Rules and Regulations is prohibited. The property owner and the sign owner will be notified by the Department of Transportation of said violations.
002.13 REMOVAL AUTHORIZED
002.13A Any outdoor advertising device which does not conform with these Rules and Regulations shall be subject to removal as provided in this section.
002.13A1 Permitted Signs
002.13A1(a) If the Nebraska Department of Transportation determines that an existing permit should be revoked, the Department shall give written notice by certified or registered mail, or by personal delivery, to the landowner and permittee specifying in what respect the permit holder has failed to comply with the requirements of these Rules and Regulations.
002.13A1(b) Conforming Signs - If the permit holder or landowner fails to correct such condition within thirty days after receiving notice, the Nebraska Department of Transportation may revoke the permit and cause the sign to be removed.
002.13A1(c) Nonconforming Signs - Any nonconforming sign that has been increased in size, had lights added, or had its location changed shall lose its nonconforming rights and the Nebraska Department of Transportation may revoke the permit and cause the sign to be removed.
002.13A2 Non-Permitted Signs or Non-Renewal of Permit
002.13A2(a) If the owner of the advertising device has not applied for a permit, or renewed a permit, as required by these Rules and Regulations, the advertising device will be presumed to be owned by the owner of the property on which the advertising device is located.
002.13A2(b) The permit office shall give written notice by certified or registered mail, or by personal delivery, to the owner of the property on which the advertising device is located, informing the owner of the failure to obtain a permit and ordering the owner to apply for a permit or remove the advertising device within thirty days.
002.13A2(c) If the owner of the property on which the advertising device is located informs the Nebraska Department of Transportation of the correct name and address of the owner of the advertising device, the permit officer or designated representative shall notify said owner.
002.13A2(d) If the owner of the property on which the advertising device is located does not inform the Nebraska Department of Transportation of the correct name and address of the owner of the advertising device and does not apply for a permit or remove the advertising device within thirty days, the device will be conclusively presumed to be discontinued.
002.13A3 If the device is presumed discontinued under this section, the Nebraska Department of Transportation may proceed as follows:
002.13A3(a) If the owner of the property gives his consent in writing to the Department for the removal of the advertising device which is on their property without a lease, the Department may remove such device, sign, or display as if it were the owner. The Department shall not be responsible for damages otherwise created by the removal of such advertising device or for its destruction subsequent to removal.
002.13A3(b) If the owner of the property does not give their written consent for removal of the advertising device by the Department, the Department may use any available legal remedy to effect its removal.
002.14 SCENIC BYWAYS
002.14A No new sign shall be erected which is visible from the main-traveled way of any scenic byway except:
002.14A1 Class I – Official signs as allowed in 002.03
002.14A2 Class II – On-Premise signs as allowed in 002.04
002.14A3 Class IV – Directional signs as allowed in 002.06.
002.14A4 Class V – Farm and ranch directional signs as allowed in 002.07
002.14B All permitted conforming Class III signs (Section 002.05) shall remain as conforming signs when the highway they are adjacent to is designated as a scenic byway.
002.14C All permitted conforming Class III signs that are removed from their existing location, for whatever the reason, will not be allowed to be re-erected under the existing permit. Therefore, if a new application is submitted and the Class III sign will be visible from the main-traveled way of any scenic byway, it will be considered as a new sign and will not be allowed to be erected.
ANNOTATION
Title 410 Chapter 3
Enabling Legislation
§39-102; 39-145; 39-201.01 to 39-226; 39-699; 39-714.01; 39-807; 39-1302; 39-1311; 39-1320 to 39-1320.11; 60-6,127; 60-6,128; 69-1701 to 69-1702 Neb. Rev. Stat.
ATTCHMENT 1 – COTTON AREAS 1958 ACT AND 1965 ACT COMBINED
History
- Effective 2019-06-08
Chapter 4 Junkyard Permits
Neb. Admin. Code tit. 410, ch. 4 Junkyard Permits {#sec-410-nac-4 omnilex-key=us-ne-regs-official--title-410--410 NAC 4}
001 PURPOSE The following Rules and Regulations govern permits for location and maintenance of junkyards within one thousand feet of the Highway Beautification Control System (HBCS) in accordance with the requirements of Chapter 39, Article 26 Neb. Rev. Stat.
002 DEFINITIONS
002.01 Automobile Graveyard: Any establishment or place of business which is maintained, operated, or used for storing, keeping, buying or selling wrecked, scrapped, ruined or dismantled motor vehicles or motor vehicle parts.
002.02 Department: The Department of Transportation of the State of Nebraska.
002.03 Highway: A road or street, including the entire area within the right of way, which has been designated a part of the state highway system.
002.04 Highway Beautification Control System (HBCS): The National System of Interstate and Defense Highways, the system of federal-aid primary roads as they existed on June 1, 1991, any additional highway or road which is designated as a part of the National Highway System under the federal Intermodal Surface Transportation Efficiency Act of 1991, and scenic byways.
002.05 Industrial Activities: Those generally recognized as industrial by zoning authorities within the State, except that none of the following shall be considered industrial activities:
002.05A Outdoor advertising structures.
002.05B Agricultural, forestry, ranching, grazing, farming, and related activities, including, but not limited to, wayside fresh produce stands.
002.05C Activities normally and regularly in operation less than three months of the year.
002.05D Temporary activities.
002.05E Activities not visible from the traffic lanes of the main-traveled way.
002.05F Activities more than three hundred feet from the nearest edge of the main-traveled way.
002.05G Activities conducted in a building principally used as a residence.
002.05H Railroad tracks, minor sidings, and passenger depots.
002.05I Junkyards as defined in Section 002.07.
002.06 Junk: Old or scrap copper, brass, rope, rags, batteries, paper, trash, rubber debris, waste or junked, dismantled, or wrecked automobiles, or parts thereof, iron, steel, and other old or scrap ferrous or nonferrous material.
002.07 Junkyard: An establishment or place of business which is maintained, operated or used for storing, keeping, buying or selling junk or for the maintenance or operation of an automobile graveyard, and includes garbage dumps and sanitary fills.
002.08 Main-Traveled Way: The traveled portion of the HBCS on which through traffic is carried and, in case of a divided highway, the traveled portion of each of the separated roadways.
002.09 Person: Any natural person, partnership, limited liability company, association, corporation or governmental subdivision.
002.10 Right Of Way: Land, property, or interest therein, usually in a strip, acquired for or devoted to a road, street, or highway.
002.11 Road: A public way for the purposes of vehicular travel, including the entire area within the right of way. A road designated as part of the state highway system may be called a highway, while a road in an urban area may be called a street.
002.12 Roadway: The portion of a highway, including shoulders, for vehicular use.
002.13 Scenic Byway: Means a road, highway, or connecting link designated as a scenic byway pursuant to Neb. Rev. Stat. 39-217.
002.14 Unzoned Industrial Area: For purposes of junkyard control, the land occupied by the regularly used building, parking lot, storage or processing area of an industrial activity, and that land within one thousand feet thereof, which is:
002.14A Located on the same side of the highway as the principal part of said activity.
002.14B Not predominantly used for residential or commercial purposes.
002.14C Not zoned by State or local Law, Regulation or Ordinance.
003 APPLICATIONS All persons desiring to obtain a permit to operate, locate, or maintain a junkyard in locations described in 005, must make application on the forms furnished by the Department of Transportation, Right of Way Division, Lincoln NE.
004 PERMITS
004.01 A permit will be issued if the owner or operator has complied with the provisions of Title 410, Chapter 4 - Junkyard Permits.
004.02 Permit shall be non-transferable.
004.03 Any person acquiring an existing junkyard shall make new application for a permit.
004.04 The annual fee for obtaining such permit shall be fifty dollars.
004.05 The permit shall be renewed January 1 of each year.
004.06 The applicant, if an individual, shall provide their Social Security Number.
005 LOCATION
005.01 Except as provided for in 005.02, no person shall locate and maintain a junkyard, any portion of which is within one thousand feet of the nearest edge of the right of way of any roadway of the HBCS, without obtaining a permit from the Department of Transportation.
005.02 Junkyards located in counties which have formally adopted a comprehensive development plan and a zoning resolution regulating the location of junkyards within one thousand feet of the nearest edge of the right of way of any roadway of the HBCS, except those routes which consist of the federally designated National system of Interstate and Defense Highways, shall be exempt from the permit requirements noted herein.
006 CONDITIONS
006.01 No permit shall be granted for the location and maintenance of a junkyard within one thousand feet of the nearest edge of the right of way of any roadway of the HBCS except the following:
006.01A Those which are screened by natural objects, plantings, fences or other appropriate means so as not to be visible from the main-traveled way, or otherwise removed from sight;
006.01B Those located within areas which are zoned for industrial use under authority of the law of a municipality or county, except those located along any route designated as a scenic byway;
006.01C Those located within unzoned industrial areas, except those located along any route designated as a scenic byway;
006.01D Those which are not visible from the main-traveled way.
006.02 Junkyards lawfully in existence PRIOR to August 27, 1971, which do not qualify for a permit under shall be screened by the Department of Transportation so as not to be visible from the main-traveled way of the HBCS.
006.02A Screening of junkyards will take place as federal aid matching funds are available.
006.02B All such junkyards shall apply for and receive a permit from the Department of Transportation.
006.03 Junkyards lawfully in existence PRIOR to August 27, 1971, which do not qualify for a permit under 006.01 and which cannot, as a practical matter, be screened, may be removed.
006.03A The Department of Transportation may acquire by gift, purchase, exchange or condemnation from the owner, such interest in lands or personal property as may be necessary to acquire the location, or to effect the removal or disposal of such junkyards.
006.03B Acquisition of junkyards will take place, as federal aid matching funds are available.
006.03C All such junkyards shall apply for and receive a permit from the Department of Transportation.
006.04 Junkyards established AFTER August 27, 1971, which are not in areas zoned industrial or unzoned industrial areas established prior to August 27, 1971, must, as a part of the application, submit a plan for screening the junkyard from the view of the traveling public.
006.04A The Department of Transportation will determine if the screening is acceptable and can be maintained by the owner or operator to a standard to comply with 006.01.
006.04B The proposed screening is to be constructed on the applicant’s property at no cost to the Department of Transportation.
006.04C Such junkyards shall not be entitled to a permit until the Department approves the application.
006.04D Screening shall be in place within one year of the date of the original permit.
007 LEASE REQUIREMENTS The junkyard owner shall not place or cause to be placed a junkyard upon land not owned by such person without first obtaining a written lease from the owner of such land. The junkyard owner shall furnish a copy of this lease to the Department with the application for a junkyard. A lease means an agreement, license, permit, or easement, in writing, by which possession of use of land or interest therein is given for a specific purpose.
008 ZONING CONFLICTS . Nothing in Title 410, Chapter 4 - Junkyard Permits, shall be construed to abrogate or affect the provisions of any lawful ordinance, regulation, or resolution that is more restrictive than Title 410, Chapter 4 - Junkyard Permits. Therefore, applicants shall furnish a copy of the approval from the local zoning authority to establish the junkyard, if applicable. Whenever the local zoning authority has established regulations controlling junkyards that are stricter than the controls set forth herein, then the local regulations will apply.
009 SCREENING
009.01 Location of Screening
009.01A All screening shall be placed on the real property of the junkyard. Screening placed next to adjacent private property shall have a minimum of two foot setback from the property line unless the owner or operator shall submit recorded legal documents showing a right of entry upon the adjoining property to maintain the screening.
009.01B All screening, whether of fencing or plant material or a combination, shall be located in a manner that will give adequate sight distance from all driveways, streets and roads.
009.02 Materials for Use in Junkyard Screening
009.02A Materials for use in screening of junkyards shall consist of plant material, fence, or a combination of plant material and fence. Screening shall be designed and constructed in a manner that will not create a safety hazard to pedestrians or the traveling public.
009.02B All plant material used for screening shall be of a size and quantity to provide total obscurement of junk and junkyards from the view of the traveling public within five years. Plant material shall be of such variety to provide year-round screening.
009.02C Fencing material shall consist of wood, metal, or other material commonly used in the building trade, and shall be such height and type as to totally obscure the junk and junkyards from the view of the traveling public. The fence shall be designed to withstand a minimum wind load of twenty pounds per square foot and shall be of a permanent nature. All materials used for fencing shall have a non-reflective surface.
009.03 Maintenance of Screening. Persons owning, operating or maintaining a junkyard shall maintain the screening in a condition equal to the original installation of the screening. Maintenance shall include, but not be limited to the following items:
009.03A Replacement of plant material which is dead or has been damaged
009.03B Fence maintenance shall include the replacement of panels, sections, members or support structures when needed.
010 FAILURE OF COMPLIANCE
010.01 Persons owning, operating or maintaining a junkyard and failing to comply with any provision of these Rules and Regulations or the terms of the permit to operate a junkyard issued in accordance herewith shall have their permit revoked. The junkyard will not be eligible for a new permit until such time as the violation of the Rules and Regulations and/or terms of the permit have been corrected and approved by the Department of Transportation and a new application submitted with the annual fee.
010.02 The Department of Transportation may apply to the district court in the county in which such junkyards may be located for an injunction to abate such nuisance or for such other relief as may be necessary or proper.
010.03 Any person who shall be found in violation of Title 410, Chapter 4, Junkyard Permits shall be guilty of a Class II misdemeanor. Each day’s violation shall constitute a separate offense.
011 EXPENDITURE OF FUNDS; LIMITATIONS The Department of Transportation shall not expend any funds under Title 410, Chapter 4, unless federal-aid matching funds are available for the purpose described in 23 U.S.C. 136.
History
- Effective 2019-06-08
Chapter 5 Relocation Assistance
Neb. Admin. Code tit. 410, ch. 5 Relocation Assistance {#sec-410-nac-5 omnilex-key=us-ne-regs-official--title-410--410 NAC 5}
001 GENERAL
001.01 PURPOSE The purpose of this rule is to implement the Relocation Assistance Act of 1989 as amended, in accordance with the following objectives:
001.01A To ensure that persons displaced as a direct result of publicly financed projects are treated fairly, consistently, and equitably so that such persons will not suffer disproportionate injuries as a result of projects designed for the benefit of the public as a whole; and
001.01B To ensure that Agencies implement these regulations in a manner that is efficient and cost effective.
001.02 DEFINITIONS
001.02A AGENCY
001.02A1 The term “Agency” shall mean any department, agency, or instrumentality of:
001.02A1a The State of Nebraska,
001.02A1b Any political subdivision of the State of Nebraska,
001.02A1c Any combination of states which includes the State of Nebraska,
001.02A1d Any combination of political subdivisions, either of the State of Nebraska alone or of the State of Nebraska and any other state or states acting in combination; and
001.02A2 Any person who has the authority to acquire property by eminent domain under state law.
001.02B APPRAISAL The term “appraisal” shall mean a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion of defined value of an adequately described property as of a specific date supported by the presentation and analysis of relevant market information.
001.02C BUSINESS The term “business” means any lawful activity, except a farm operation, that is conducted:
001.02C1 Primarily for the purchase, sale, lease and/or rental of personal and/or real property, and/or for the manufacture, processing, and/or marketing of products, commodities, and/or any other personal property; or
001.02C2 Primarily for the sale of services to the public; or
001.02C3 Primarily for outdoor advertising display purposes, when the display must be moved as a result of the project; or
001.02C4 By a nonprofit organization that has established its nonprofit status under applicable federal and state law.
001.02D COMPARABLE REPLACEMENT DWELLING The term “comparable replacement” means a dwelling which is:
001.02D1 Decent, safe and sanitary as described in section 001.02F;
001.02D2 Functionally equivalent to the displacement dwelling. The term “functionally equivalent” means that it performs the same function, provides the same utility, and is capable of contributing to a comparable style of living. While a comparable replacement dwelling need not possess every feature of the displacement dwelling, the principal features must be present. Generally, functional equivalency is an objective standard, reflecting the range of purposes for which the various physical features of a dwelling may be used. However, in determining whether a replacement dwelling is functionally equivalent to the displacement dwelling, the Agency may consider reasonable trade- offs for specific features when the replacement unit is “equal to or better than” the displacement dwelling. (See Appendix A, section 001.02D.);
001.02D3 Adequate in size to accommodate the occupants;
001.02D4 In an area not subject to unreasonable adverse environmental conditions;
001.02D5 In a location generally not less desirable than the location of the displaced person’s dwelling with respect to public utilities and commercial and public facilities, and reasonably accessible to the person’s place of employment;
001.02D6 On a site that is typical in size for residential development with normal site improvements, including customary landscaping. The site need not include special improvements such as outbuildings, swimming pools, or greenhouses. (See also section 004.03A2.);
001.02D7 Currently available to the displaced person on the private market. However, a comparable replacement dwelling for a person receiving government housing assistance before displacement may reflect similar government housing assistance. (See Appendix A, section 001.02D7.); and
001.02D8 Within the financial means of the displaced person:
001.02D8a A replacement dwelling purchased by a homeowner in occupancy at the displacement dwelling for at least 180 days prior to initiation of negotiations (180-day homeowner) is considered to be within the homeowner’s financial means if the homeowner will receive the full price differential as described in section 004.01C, all increased mortgage interest costs as described in section 004.01D and all incidental expenses as described in section 004.01E, plus any additional amount required to be paid under section 004.04, Replacement Housing of Last Resort.
001.02D8b A replacement dwelling rented by an eligible displaced person is considered to be within his or her financial means if, after receiving rental assistance under this rule, 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 as described in section 004.02B2.
001.02D8c 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 an Agency pays that portion of the monthly housing costs of a replacement dwelling which exceeds 30 percent of such person’s gross monthly household income or, if receiving a welfare assistance payment from a program that designates amounts for shelter and utilities, the total of the amounts designated for shelter and utilities. Such rental assistance must be paid under section 004.04, Replacement Housing of Last Resort.
001.02E CONTRIBUTE MATERIALLY The term “contribute materially” means that during the two taxable years prior to the taxable year in which displacement occurs, or during such other period as the Agency determines to be more equitable, a business or farm operation:
001.02E1 Had average annual gross receipts of at least $5000; or
001.02E2 Had average annual net earnings of at least $1000; or
001.02E3 Contributed at least 33 percent of the owner’s or operator’s average annual gross income from all sources.
001.02E4 If the application of the above criteria creates an inequity or hardship in any given case, the Agency may approve the use of other criteria as determined appropriate.
001.02F DECENT, SAFE, AND SANITARY DWELLING The term “decent, safe, and sanitary dwelling” means a dwelling which meets applicable housing and occupancy codes. However, any of the following standards which are not met by an applicable code shall apply. The dwelling shall:
001.02F1 Be structurally sound, weathertight, and in good repair.
001.02F2 Contain a safe electrical wiring system adequate for lighting and other devices.
001.02F3 Contain a heating system capable of sustaining a healthful temperature (of approximately 70 degrees) for a displaced person, except in those areas where local climatic conditions do not require such a system. 001.02F4 Be adequate in size with respect to the number of rooms and area of living space needed to accommodate the displaced person. There shall be a separate, well lighted and ventilated bathroom that provides privacy to the user and contains a sink, bathtub or shower stall, and a toilet, all in good working order and property connected to appropriate sources of water and to a sewage drainage system. In the case of a housekeeping dwelling, there shall be a kitchen area that contains a fully usable sink, properly connected to potable hot and cold water and to a sewage drainage system, and adequate space and utility service connections for a stove and a refrigerator.
001.02F5 Contains unobstructed egress to safe, open space at ground level. If the replacement dwelling unit is on the second story or above, with access directly from or through a common corridor, the common corridor must have at least two means of egress.
001.02F6 For a displaced person who is handicapped, be free of any barriers which would preclude reasonable ingress, egress, or use of the dwelling by such displaced person.
001.02G DISPLACED PERSON
001.02G1 GENERAL Displaced person means:
001.02G1a Any person who, on or after April 2, 1989, moves from or moves his or her personal property from real property as a result of a written notice of intent to acquire, the initiation of negotiations for, or the acquisition of, such real property in whole or in part for a publicly financed project.
001.02G1b Any person who as a result of a publicly financed project moves from or moves his or her personal property from real property on which such person is a residential tenant, conducts a small business as defined by criteria established by the lead Agency which are consistent with regulations adopted and promulgated by the United States Department of Transportation under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601 et seq. as amended, conducts a farm operation, or conducts a business, as a direct result of rehabilitation, demolition, or other displacing activity, when the displacement is permanent; or
001.02G1c Solely for purposes of Neb. Rev. Stat. §§76-1228, 76-1229, and 76-1238 , any person who moves from or moves his or her personal property from real property as a direct result of a written notice of intent to acquire, or the acquisition of other real property, in whole or in part, on which such person conducts a business or farm operation, or the rehabilitation, demolition, or other displacing activity of other real property on which such person conducts a business or a farm operation, when such displacement is permanent.
001.02G2 DISPLACED PERSON does not include:
001.02G2a A person who is determined by the displacing Agency to be in unlawful occupancy of the real property prior to or after the initiation of negotiations for acquisition of the real property or a person who has been evicted for cause;
001.02G2b In any case in which the displacing Agency acquires property for a publicly financed project, any person who occupies such property on a rental basis after the property has been acquired by the displacing Agency or for a person subject to termination when the property is needed for the project;
001.02G2c A person who moves before the initiation of negotiations for acquisition of the real property unless the Agency determines that the person was displaced as a direct result of the program or project;
001.02G2d A person who initially enters into occupancy of the property after the date of its acquisition for the project;
001.02G2e 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, 42 U.S.C. 4601 et seq., as amended;
001.02G2f A person who is not required to relocate permanently as a direct result of a project;
001.02G2g An owner-occupant who moves as a result of the rehabilitation or demolition of the real property or an owner-occupant who moves as a result of an acquisition of real property when the acquisition of the real property meets all the following conditions:
001.02G2g(1) No specific site or real property needs to be acquired, although the Agency may limit its search for alternative sites to a general geographic area;
001.02G2g(2) The real property to be acquired is not part of an intended, planned, or designated project area where all or substantially all of the real property within the area is to be acquired within specific time limits;
001.02G2g(3) The Agency will not acquire the real property if negotiations fail to result in an amicable agreement and the owner is so informed in writing; and
001.02G2g(4) The Agency informs the owner in writing of what it believes to be the market value of the real property.
Subsection (g) of this section does not apply to any tenant who must move as a direct result of the acquisition, rehabilitation, or demolition of real property;
001.02G2h An owner-occupant who moves as a result of an acquisition of real property when the acquisition of the real property is for a program or project undertaken by an Agency or person that does not have authority to acquire real property by eminent domain, if such Agency or person:
001.02G2h(1) Prior to making an offer for the real property, clearly advises the owner that it is unable to acquire the real property if negotiations fail to result in an agreement; and
001.02G2h(2) Informs the owner in writing of what it believes to be the market value of the real property.
Subsection (h) of this section does not apply to any tenant who must move as a direct result of the acquisition of real property.
001.02G2i A person who the Agency determines is not displaced as a direct result of a partial acquisition.
001.02G2j A person, who, after receiving a notice of the intent to acquire, the initiation of negotiations, or the acquisition of the real property, is notified in writing that he or she will not be displaced for a project.
001.02G2k A person who retains the right of use and occupancy of the real property for life following its acquisition by the Agency.
001.02G2l Tenants required to move as a result of the sale of their dwelling to a person using down payment assistance authorized by section 102 of the American Dream Downpayment Act, 42 U.S.C. 12821, as amended; or
001.02G2m A person who is not lawfully present in the United States.
001.02H DISPLACING AGENCY The term “displacing Agency” shall mean any Agency carrying out a publicly financed project which causes an individual to become a displaced person or any person lacking the power of eminent domain who carries out a publicly financed project when that project causes an individual to be a displaced person.
001.02I DWELLING The term “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 non-housekeeping unit; a mobile home; or any other residential unit.
001.02J FARM OPERATION The term “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 operators support.
001.02K INITIATION OF NEGOTIATIONS Unless a different action is specified in applicable federal program regulations, the term “initiation of negotiations” means the following:
001.02K1 Whenever the displacement results from the acquisition of the real property by an Agency, the “initiation of negotiations” means the delivery of the initial written offer of just compensation by the Agency to the owner or the owners representative to purchase the real property for the project. However, if the Agency issues a notice of its intent to acquire the real property, and a person moves after that notice, but before delivery of the initial written purchase offer, the “initiation of negotiations” means the actual move of the person from the property.
001.02K2 Whenever the displacement is caused by rehabilitation, demolition or privately undertaken acquisition of the real property (and there is no related acquisition by an Agency), the “initiation of negotiations” means the notice to the person that he or she will be displaced by the project or, if there is no notice, the actual move of the person from the property.
001.02K3 In the case of a permanent relocation to protect the public health and welfare, under the Comprehensive Environmental Response Compensation and Liability Act of 1980 (Public Law 96-510, or “Superfund”), as amended, the “initiation of negotiations” means the formal announcement of such relocation or the federal or federally-coordinated health advisory where the Federal Government later decides to conduct a permanent relocation.
001.02L LEAD AGENCY The term “lead Agency” means the Nebraska Department of Transportation.
001.02M MORTGAGE The term “mortgage” means such classes of liens as are commonly given to secure advances on, or the unpaid purchase price of real property, under the laws of the state, together with the credit instruments, if any, secured thereby.
001.02N NONPROFIT ORGANIZATION The term “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 section 501 of the Internal Revenue Code (26 U.S.C. 501).
001.02O NOTICE OF INTENT TO ACQUIRE OR NOTICE OF ELIGIBILITY FOR RELOCATION ASSISTANCE Written notice furnished to a person to be displaced, including those to be displaced by rehabilitation or demolition activities from property acquired prior to the commitment of federal financial assistance to the activity, that establishes eligibility for relocation benefits prior to the initiation of negotiation and/or prior to the commitment of federal financial assistance.
001.02P OWNER OF A DWELLING A person is considered to have met the requirement to own a dwelling if the person purchases or holds any of the following interests in real property;:
001.02P1 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; or
001.02P2 An interest in a cooperative housing project which includes the right to occupy a dwelling; or
001.02P3 A contract to purchase any of the interests or estates described in sections 001.02P1 and 001.02P2; or
001.02P4 Any other interest, including a partial interest, which in the judgment of the Agency warrants consideration as ownership.
001.02Q PERSON The term “person” means any individual, partnership, corporation, or association.
001.02R PUBLICLY FINANCED PROJECT The term “publicly financed project” shall mean any project undertaken by an Agency in which any part of the cost is to be paid from funds derived from federal, state, or local taxes of any type, by revenue, or general obligation bonds issued by the Agency, or from funds derived by the Agency from the sale of products or services in a proprietary capacity. Publicly financed project shall not mean a project in which the federal funds involved are in the form of a federal guarantee or insurance.
001.02S SMALL BUSINESS A 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 occupied solely by outdoor advertising signs, displays, or devices do not qualify as a business for purposes of section 003.04. (See Appendix A, section 001.02S.)
001.02T TENANT The term “tenant” means a person who has the temporary use and occupancy of real property owned by another.
001.02U UNLAWFUL OCCUPANCY A person is considered to be in unlawful occupancy if the person has been ordered to move by a court of competent jurisdiction prior to the initiation of negotiations or is determined by the Agency to be a squatter who is occupying the real property without the permission of the owner and otherwise has no legal right to occupy the property under state law. A displacing Agency may, at its discretion, consider such a squatter to be in lawful occupancy.
001.02V UTILITY COSTS The term “utility costs” means expenses for heat, lights, water and sewer.
001.03 NO DUPLICATION OF PAYMENTS No person shall receive any payment under this rule if that person receives a payment under federal, state, or local law which is determined by the Agency to have the same purpose and effect as such payment under this rule. (See Appendix A, section 001.03.)
001.04 MANNER OF NOTICES Each notice which the Agency is required to provide to a property owner or occupant, shall be personally served or sent by certified or registered first-class mail, return receipt requested, and documented in the Agency files. Each notice shall be written in plain, understandable language. Persons who are unable to read and understand the notice must be provided with appropriate translation and counseling. Each notice shall indicate the name and telephone number of a person who may be contacted for answers to questions or other needed help.
001.05 APPEALS
001.05A GENERAL
001.05A1 SCOPE AND APPLICATION These rules shall govern practice and procedure in all hearings involving contested cases as that term is defined in 84-901(3) Neb.Rev.Stat. Practice and procedure for hearings involving any Agency shall also be governed by Chapter 84, Article 9 Neb.Rev.Stat. In the absence of a specific rule, practice pertaining to proceedings in the district courts of this state shall be applicable.
001.05A2 ACTIONS WHICH MAY BE APPEALED Any aggrieved person may file a written appeal with the Agency in any case in which the person believes that the Agency has failed to properly consider the persons eligibility for, or the amount of a relocation payment required under these rules.
001.05A3 FILINGS All correspondence and filings shall be addressed or delivered to the head of the Agency.
001.05A4 TIME LIMIT FOR INITIATING APPEAL Appeals must be filed with the Agency within 60 days of the displaced person’s receipt of written notification of the Agency’s determination on the displaced persons claim.
001.05A5 TIME COMPUTATION In computing any period of time prescribed or allowed by these rules the day of the act or event after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, a Sunday or a legal holiday, in which event, the period runs until the end of the next day which is neither a Saturday, a Sunday nor a holiday. When the period of time prescribed or allowed is less than five days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation. When the federal government and the Agency observe the same holiday on different days, and such prevents a party from acting within the prescribed time, both days observed shall be considered as holidays.
001.05A6 RIGHT TO REPRESENTATION A person may be represented by legal counsel or other representative in connection with his or her appeal, but solely at the person’s own expense.
001.05A7 DEFINITIONS As used in these rules of practice and procedure, the following definitions shall apply unless the context, to be intelligible or to prevent absurdity, otherwise requires:
001.05A7a PLEADINGS DEFINED Pleadings shall mean any written application, petition, protest, complaint, answer or motion used in any proceedings pursuant to this rule.
001.05A7b AGENCY DEFINED Agency shall mean the entity providing relocation assistance, or as provided in section 001.02A.
001.05A7c FILED WITH THE AGENCY DEFINED The filing of pleadings with the Agency as required by these rules shall be made by filing them with the Agency head. If mailed to the Agency, the date of receipt at the Agency and not the date of deposit in the mail, is determinative.
001.05A7d HOLIDAY DEFINED A holiday is a day or any portion of a day designated by statute or authorized by the Governor on which no business is transacted by the Agency.
001.05A7e OFFICE HOURS DEFINED Office hours will be the normal business hours of the Agency involved with the appeal.
001.05A7f HEARING DEFINED All hearings shall be informal hearings conducted by a Hearing Examiner. The record of each hearing shall be transcribed or recorded, by the Agency at which either party may elect to be bound by the rules of evidence applicable in the district courts, if such election is in accordance with the requirements of 84-914 Neb.Rev.Stat.
001.05A7g PARTY DEFINED Party shall mean the Agency (see section 001.05A7b) or the displaced person. (See section 001.02G.)
001.05B HEARING EXAMINER
001.05B1 APPOINTMENT OF HEARING EXAMINER Upon receipt of a request for a hearing by a party, the Agency head shall appoint a Hearing Examiner or Hearing Examiners to administer, conduct and preside over all hearings. The Hearing Examiner may be the Agency head, an individual or individuals who is/are employed by the Agency, or any other authorized designee, provided, the individual(s) so appointed can, in the opinion of the Agency head, serve as Hearing Examiner(s) in a competent and efficient manner. The Hearing Examiner(s) shall not have been directly involved in the action appealed.
001.05B2 DUTIES OF HEARING EXAMINER
001.05B2a CONDUCT OF HEARING The Hearing Examiner shall preside at the hearing, open the proceedings, acknowledge appearance of parties and counsel, receive evidence for the record, rule on all motions and objections, may interrogate witnesses, and shall close the proceedings. If a party or parties are not represented by legal counsel, the Hearing Examiner shall explain to them the rules of practice and procedure and shall conduct the hearing generally in a less formal manner.
001.05B3 CUSTODIAN OF ALL PLEADINGS Upon appointment as Hearing Examiner, the Hearing Examiner shall become the custodian of all pleadings, exhibits, documents, and briefs entered, filed and introduced into evidence by the parties. Discovery documents, including depositions, need not be filed with the Hearing Examiner unless ordered by the Hearing Examiner or when introduced into evidence.
001.05B4 LIMITATION OF POWERS A Hearing Examiner shall have no power to take any action involving a final determination of the proceedings.
001.05B5 RECORD OF PROCEEDINGS
001.05B5a RECORD The Hearing Examiner shall prepare an official record which shall include testimony and exhibits, however, it shall not be necessary to transcribe shorthand notes or recordings unless requested by either party, in which event the costs of such transcription shall be borne by whomever makes such request.
001.05B5b NOTICE OF HEARING It shall be the duty of the Hearing Examiner to determine that notice of hearing has been given in accordance with these rules.
001.05B5c OATH All testimony presented before the Hearing Examiner shall be given under oath which the Hearing Examiner will have the authority to administer.
001.05B5d CONDUCT OF PARTIES The Hearing Examiner shall have the power to exclude or remove from the hearing any person who engages in improper conduct.
001.05B5e FINDINGS AND RECOMMENDATIONS The Hearing Examiner shall, in writing, make complete findings of fact and conclusions of law together with a recommendation for disposition of the issue to the Agency head.
001.05C COMMENCEMENT OF PROCEEDING A hearing shall be scheduled upon receipt of a written appeal.
001.05D SCHEDULING OF HEARING A hearing shall be held no sooner than ten days after receipt of a written request, unless agreed upon in writing by the parties.
001.05E LOCATION OF HEARING In setting the time and place for hearings in contested cases, appropriate consideration shall be made for the convenience and necessity of all of the parties, which includes the Agency or its representative.
001.05F NOTICE OF HEARING The Agency head shall give reasonable notice of hearing stating the date, time, location and general subject matter of the hearing. Notice shall be given by certified mail no later than five days prior to a hearing. Failure of a party to appear at a scheduled hearing shall be grounds for dismissal of the proceeding.
001.05G MOTIONS
001.05G1 Motions made prior to a hearing shall be in writing and a copy thereof shall be served on the parties. Such motions, except motions constituting final disposition of a proceeding, shall be ruled on by the Hearing Examiner. Motions constituting final disposition of a proceeding shall be ruled upon by the Agency head.
001.05G2 Motions may be ruled on ex parte, without argument. A copy of the motion with the ruling thereon shall be mailed to the parties.
001.05G3 MOTION FOR CONTINUANCE Motions for continuance shall be granted at the discretion of the Hearing Examiner, however, no continuance shall be requested and none allowed but for good cause shown and in no case shall a hearing be continued for a period of more than twenty days.
001.05H DISCOVERY
001.05H1 The party shall have the right to request answers to questions, and to request the production of specified documents relevant to the proceedings. The Agency shall permit a party to inspect and copy all materials pertinent to the appeal, except materials which are classified as confidential by the Agency. The Agency may, however, impose reasonable conditions on the person’s right to inspect, consistent with applicable laws. Further, each may take depositions of any witness, upon ten working days’ notice to the other.
001.05H2 Discovery requests and/or notice shall be addressed to the party from whom the information or documents are sought.
001.05H3 Answers and documents must be provided within ten working days of receipt of request. Objections to such requests shall be made to the Hearing Examiner within five days of receipt of the request. The Hearing Examiner shall affirm or deny such objection within five days of receipt thereof and shall establish time limits for response when objections are denied.
001.05H4 Failure to respond to any discovery request, except where objections to such requests are sustained, may, at the discretion of the Hearing Examiner, result in the nonresponding party being denied the right to introduce any evidence on the subject of the request, or such other remedy as deemed appropriate.
001.05H5 The time limits of the discovery procedure may, if necessary and justified in the opinion of the Hearing Examiner, be adjusted to accommodate the time required by the circumstances.
001.05I SUBPOENA A subpoena may be had upon request which shall indicate to the Hearing Examiner the names and the last known addresses of the witnesses to be called. If evidence other than oral testimony is required, each item to be produced shall be adequately described. All requests for subpoena shall be directed to the attention of the Hearing Examiner no less than seven days prior to the published date of said hearing. The Hearing Examiner shall issue subpoena as requested and mail the same to the party so requesting within five days of receipt of request therefor. Service may be made either by mailing a copy thereof by registered or certified mail, return receipt requested, no less than three days before the hearing date of the cause which the witness is required to attend, or personally by any person not interested in the action. No costs for serving a subpoena will be allowed.
001.05J CONDUCT OF HEARING The Agency shall present its case first, setting forth the grounds and reasons for its actions, and then the other party shall be heard. In cases where the Agency feels that the other party should be heard first, that party shall be notified not less than five days in advance of the hearing.
001.05K DECISION OF THE AGENCY HEAD The decision of the Agency head shall be in writing and a copy of the decision shall be mailed to the party by certified or registered mail no later than thirty days after the recommendation of the Hearing Examiner is received by the Agency head. The Agency head may, at his discretion, adopt the recommendation of the Hearing Examiner, or he may make an independent decision accompanied by his findings of fact and conclusions of law. If the full relief requested is not granted, the Agency shall advise the person of his or her right to seek judicial review.
001.06 RECORDS
001.06A RECORDS The Agency shall maintain adequate records of its acquisition and displacement activities in sufficient detail to demonstrate compliance with this part. These records shall be retained for at least three years after each person displaced from the property receives the final payment to which he or she is entitled under this rule.
001.06B CONFIDENTIALITY OF RECORDS Records maintained by an Agency in accordance with this part are confidential regarding their use as public information, unless applicable law provides otherwise.
002 GENERAL RELOCATION REQUIREMENTS
002.01 PURPOSE This section prescribes general requirements governing the provision of relocation payments and other relocation assistance in this rule.
002.02 APPLICABILITY These requirements apply to the relocation of any displaced person as defined in Section 001.02G.
002.03 RELOCATION NOTICES
002.03A GENERAL INFORMATION NOTICE As soon as feasible, a person scheduled to be displaced shall be furnished with a general written description of the displacing agency’s relocation program which does at least the following:
002.03A1 Informs the person that he or she may be displaced for the project and generally describes the relocation payment(s) for which the person may be eligible, the basic conditions of eligibility, and the procedures for obtaining the payment(s).
002.03A2 Informs the person that he or she will be given reasonable relocation advisory services, including referrals to replacement properties, help in filing payment claims, and other necessary assistance to help the person successfully relocate.
002.03A3 Informs the person that he or she will not be required to move without at least 90 days advance written notice (see Section 002.03C), and informs any person to be displaced from a dwelling that he or she cannot be required to move permanently unless at least one comparable replacement dwelling has been made available.
002.03A4 Describes the person’s right to appeal the Agency’s determination as to a person’s application for assistance for which a person may be eligible under this rule.
002.03B NOTICE OF RELOCATION ELIGIBILITY Eligibility for relocation assistance shall begin on the date of initiation of negotiations (defined in Section 001.02K) for the occupied property. When this occurs, the Agency shall promptly notify all occupants in writing of their eligibility for applicable relocation assistance.
002.03C NINETY-DAY NOTICE
002.03C1 GENERAL No lawful occupant shall be required to move unless he or she has received at least 90 days advance written notice of the earliest date by which he or she may be required to move.
002.03C2 TIMING OF NOTICE The displacing Agency may issue the notice 90 days before it expects the person to be displaced or earlier.
002.03C3 CONTENT OF NOTICE The 90-day notice shall either state a specific date as the earliest date by which the occupant may be required to move, or state that the occupant will receive a further notice indicating, at least 30 days in advance, the specific date by which he or she must move. A 90-day notice will not be issued to a residential occupant until a comparable replacement dwelling is available. (See Section 002.04A.)
002.03C4 URGENT NEED In unusual circumstances, an occupant may be required to vacate the property on less than 90 days advance written notice if the displacing agency determines that a 90-day notice is impracticable, such as when the persons continued occupancy of the property would constitute a substantial danger to health or safety. A copy of the Agency’s determination shall be included in the applicable case file.
002.04 AVAILABILITY OF COMPARABLE REPLACEMENT DWELLING BEFORE DISPLACEMENT
002.04A GENERAL No person to be displaced shall be required to move from his or her dwelling unless at least one comparable replacement dwelling (defined in Section 001.02D) has been made available to the person. Where possible, three or more comparable replacement dwellings shall be made available. A comparable replacement dwelling will be considered to have been made available to a person, if:
002.04A1 The person is informed of its location; and
002.04A2 The person has sufficient time to negotiate and enter into a purchase agreement or lease for the property; and
002.04A3 Subject to reasonable safeguards, the person is assured of receiving the relocation assistance and acquisition payment to which the person is entitled in sufficient time to complete the purchase or lease of the property.
002.04B CIRCUMSTANCES PERMITTING WAIVER The Agency head may grant a waiver of the policy in Section 002.04A in any case where it is demonstrated that a person must move because of:
002.04B1 A major disaster as defined in Section 102(c) of the Disaster Relief Act of 1974 (42 U.S.C. 5121); or
002.04B2 A presidentially declared national emergency; or
002.04B3 Another emergency which requires immediate vacation of the real property, such as when continued occupancy of the displacement dwelling constitutes a substantial danger to the health or safety of the occupants or the public.
002.04C BASIC CONDITIONS OF EMERGENCY MOVE Whenever a person is required to relocate for a temporary period because of an emergency as described in Section 002.04B, the Agency shall:
002.04C1 Take whatever steps are necessary to assure that the person is temporarily relocated to a decent, safe and sanitary dwelling; and
002.04C2 Pay the actual reasonable out-of-pocket moving expenses and any reasonable increase in rent and utility costs incurred in connection with the temporary relocation; and
002.04C3 Make available to the displaced person as soon as feasible, at least one comparable replacement dwelling. (For purposes of filing a claim and meeting the eligibility requirements for a relocation payment, the date of displacement is the date the person moves from the temporarily- occupied dwelling.)
002.05 RELOCATION PLANNING, ADVISORY SERVICES, AND COORDINATION
002.05A RELOCATION PLANNING During the early stages of development, programs or projects shall be planned in such a manner that the problems associated with the displacement of individuals, families, businesses, farms, and nonprofit organizations are recognized and solutions are developed to minimize the adverse impacts of displacement. Such planning, where appropriate, shall precede any action by an Agency which will cause displacement, and should be scoped to the complexity and nature of the anticipated displacing activity including an evaluation of program resources available to carry out timely and orderly relocations. Planning may involve a relocation survey or study which may include the following:
002.05A1 An estimate of the number of households to be displaced including information such as owner/tenant status, estimated value and rental rates of properties to be acquired, family characteristics, and special consideration of the impacts on minorities, the elderly, large families, and the handicapped when applicable.
002.05A2 An estimate of the number of comparable replacement dwellings in the area (including price ranges and rental rates) that are expected to be available to fulfill the needs of those households displaced. When an adequate supply of comparable housing is not expected to be available, consideration of housing of last resort actions should be instituted.
002.05A3 An estimate of the number, type and size of the businesses, farms, and nonprofit organizations to be displaced and the approximate number of employees that may be affected.
002.05A4 Consideration of any special relocation advisory services that may be necessary from the displacing Agency and other cooperating agencies.
002.05B RELOCATION ASSISTANCE ADVISORY SERVICES
002.05B1 GENERAL The Agency shall carry out a relocation assistance advisory program for all persons displaced by the Agency. If the Agency determines that a person occupying property adjacent to the real property acquired for the project is caused substantial economic injury because of such acquisition, it may offer advisory services to such person.
002.05B2 SERVICES TO BE PROVIDED The advisory program shall include such measures, facilities, and services as may be necessary or appropriate in order to:
002.05B2a Determine the relocation needs and preferences of each person to be displaced and explain the relocation payments and other assistance for which the person may be eligible, the related eligibility requirements, and the procedures for obtaining such assistance. This shall include a personal interview with each person.
002.05B2b Provide current and continuing information on the availability, purchase prices, and rental costs of comparable replacement dwellings, and explain that the person cannot be required to move unless at least one comparable replacement dwelling is made available as set forth in Section 002.04A.
002.05B2b(1) As soon as feasible, the Agency shall inform the person in writing of the specific comparable replacement dwelling and the price or rent used for establishing the upper limit of the replacement housing payment (see Sections 004.03A and 004.03B) and the basis for the determination, so that the person is aware of the maximum replacement housing payment for which he or she may qualify.
002.05B2b(2) Where feasible, housing shall be inspected by the Agency prior to being made available to assure that it meets applicable standards. (See Sections 001.02D and 1.02F.) If such an inspection has not been made, the person to be displaced shall be notified that a replacement housing payment may not be made unless the replacement dwelling is subsequently inspected and determined to be decent, safe, and sanitary.
002.05B2b(3) Whenever possible, minority persons shall be given reasonable opportunities to relocate to decent, safe, and sanitary replacement dwellings, not located in an area of minority concentration, that are within their financial means. This policy, however, does not require an Agency to provide a person a larger payment than is necessary to enable a person to relocate to a comparable replacement dwelling.
002.05B2b(4) All persons, especially the elderly and handicapped, shall be offered transportation to inspect housing to which they are referred.
002.05B2c Provide current and continuing information on the availability, purchase prices, and rental costs of suitable commercial and farm properties and locations. Assist any person displaced from a business or farm operation to obtain and become established in a suitable replacement location.
002.05B2d Minimize hardships to persons in adjusting to relocation by providing counseling, advice as to other sources of assistance that may be available, and such other help as may be appropriate.
002.05B2e Supply persons to be displaced with appropriate information concerning federal and state housing programs, disaster loan and other programs administered by the Small Business Administration, and other federal and state programs offering assistance to displaced persons, and technical help to persons applying for such assistance.
002.05B2f Any person who occupies property acquired by an Agency, when such occupancy began subsequent to the acquisition of the property, and the occupancy is permitted by a short-term rental agreement or an agreement subject to termination when the property is needed for a program or project, shall be eligible for advisory services, as determined by the Agency.
002.05C COORDINATION OF RELOCATION ACTIVITIES Relocation activities shall be coordinated with project work and other displacement-causing activities to ensure that, to the extent feasible, persons displaced receive consistent treatment and the duplication of functions is minimized.
002.06 EVICTION FOR CAUSE Eviction for cause must conform to applicable state and local law. Any person who occupies the real property and is not in unlawful occupancy on the date of the initiation of negotiations, is presumed to be entitled to relocation payments and other assistance set forth in this rule unless the Agency determines that:
002.06A The person received an eviction notice prior to the initiation of negotiations and, as a result of that notice is later evicted; or
002.06B The person is evicted after the initiation of negotiations for serious or repeated violation of material terms of the lease or occupancy agreement; and
002.06C In either case, the eviction was not undertaken for the purpose of evading the obligation to make available the payments and other assistance set forth in this rule.
002.06D For purposes of determining eligibility for relocation payments, the date of displacement is the date the person moves, or if later, the date a comparable replacement dwelling is made available. This section applies only to persons who would otherwise have been displaced by the project.
002.07 GENERAL REQUIREMENTS - CLAIMS FOR RELOCATION PAYMENTS
002.07A DOCUMENTATION Any claim for a relocation payment shall be supported by such documentation as may be reasonably required to support expenses incurred, such as bills, certified prices, appraisals, or other evidence of such expenses. A displaced person must be provided reasonable assistance necessary to complete and file any required claim for payment.
002.07B EXPEDITIOUS PAYMENTS The Agency shall review claims in an expeditious manner. The claimant shall be promptly notified as to any additional documentation that is required to support the claim. Payment for a claim shall be made as soon as feasible following receipt of sufficient documentations to support the claim.
002.07C ADVANCE PAYMENTS If a person demonstrates the need for an advance relocation payment in order to avoid or reduce a hardship, the Agency shall issue the payment, subject to such safeguards as are appropriate to ensure that the objective of the payment is accomplished.
002.07D TIME FOR FILING
002.07D1 All claims for a relocation payment shall be filed with the Agency within 18 months after:
002.07D1a For tenants, the date of displacement;
002.07D1b For owners, the date of displacement or the date of the final payment for the acquisition of the real property, whichever is later.
002.07D2 This time period shall be waived by the Agency for good cause.
002.07E 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.
002.07F 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, an Agency may, deduct from relocation payments any rent that the displaced person owes the Agency; provided that no deduction shall be made if it would prevent the displaced person from obtaining a comparable replacement dwelling as required by Section 002.04. The Agency shall not withhold any part of a relocation payment to a displaced person to satisfy an obligation to any other creditor.
002.07G NOTICE OF DENIAL OF CLAIM If the Agency disapproves all or part of a payment claimed or refuses to consider the claim on its merits because of untimely filing or other grounds, it shall promptly notify the claimant in writing of its determination, the basis for its determination, and the procedures for appealing that determination.
002.08 RELOCATION PAYMENTS NOT CONSIDERED AS INCOME No relocation payment received by a displaced person under this part shall be considered as income for the purpose of the state’s tax law or for the purpose of determining the eligibility or the extent of eligibility of any person for assistance under any other state law, except for any law providing low-income housing assistance.
003 PAYMENTS FOR MOVING AND RELATED EXPENSES
003.01 PAYMENT FOR ACTUAL REASONABLE MOVING AND RELATED EXPENSES – RESIDENTIAL MOVES Any displaced owner-occupant or tenant of a dwelling who qualifies as a displaced person (defined in section 001.02G) is entitled to payment of his or her actual moving and related expenses, as the Agency determines to be reasonable and necessary, including expenses for:
003.01A Transportation of the displaced person and personal property. Transportation costs for a distance beyond 50 miles are not eligible, unless the Agency determines that relocation beyond 50 miles is justified.
003.01B Packing, crating, unpacking, and uncrating of the personal property.
003.01C Disconnecting, dismantling, removing, reassembling, and reinstalling relocated household appliances, and other personal property.
003.01D Storage of the personal property for a period not to exceed 12 months, unless the Agency determines that a longer period is necessary.
003.01E Insurance for the replacement value of the property in connection with the move and necessary storage.
003.01F The replacement value of property lost, stolen, or damaged in the process of moving (not through the fault or negligence of the displaced person, his or her agent, or employee) where insurance covering such loss, theft, or damage is not reasonably available.
003.01G Other moving-related expenses that are not listed as ineligible under section 003.05, as the Agency determines to be reasonable and necessary.
003.02 FIXED PAYMENT FOR MOVING EXPENSES - RESIDENTIAL MOVES
003.02A Any person displaced from a dwelling or a seasonal residence is entitled to receive an expense and dislocation allowance as an alternative to a payment for actual moving and related expenses under section 003.01.
003.02B Section 76-1229 of the Relocation Assistance Act provides that the Director of the lead Agency (Nebraska Department of Transportation) shall take into consideration the reasonable expenses associated with relocation and the regulations adopted and promulgated by the United States Department of Transportation under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601 et seq., as amended.
003.02C This allowance will be determined according to the applicable schedule developed by the Director of the lead agency (Nebraska Department of Transportation) and approved by the Federal Highway Administration.
003.02D The following exceptions and limitations apply to this schedule:
003.02D1 The expense and dislocation allowance to a person with minimal personal possessions who is in occupancy of a dormitory style room shared by two or more other unrelated persons or a person whose residential move is performed by an Agency at no cost to the person shall be limited to $50
003.02D2 An occupant will be paid on an actual cost basis for moving a mobile home from the displacement site. In addition, a reasonable payment to the occupant for packing and securing personal property for the move may be paid at the Agency’s discretion.
003.02D3 An occupant who moves from a mobile home may be paid for the removal of personal property from the mobile home in accordance with the moving and dislocation allowance payment schedule.
003.02E The schedule is based on the number of rooms of furniture owned by a displaced individual or family. In the interest of fairness and accuracy, and to encourage the use of the schedule (and thereby simplify the computation and payment of moving expenses), an Agency should increase the room count for purposes of applying the schedule if the amount of possessions in a single room or space actually constitute more than the normal contents of one room of furniture or other personal property. For example, a basement may count as two rooms if the equivalent of two rooms worth of possessions is located in the basement. In addition, an Agency may elect to pay for items stored outside the dwelling unit by adding the appropriate number of rooms.
003.02F The actual Fixed Residential Moving Cost Schedule will be printed in the Federal Register. For further information on the actual room amounts contact the Nebraska Department of Transportation, Relocation Office, PO Box 94759, Lincoln NE 68509-4759 or call at (402)479-4761 or (800)764-0422.
003.03 PAYMENT FOR ACTUAL REASONABLE MOVING AND RELATED EXPENSES - NONRESIDENTIAL MOVES
003.03A ELIGIBLE COSTS Any business or farm operation which qualifies as a displaced person (defined in section 001.02G) is entitled to payment for such actual moving and related expenses, as the Agency determines to be reasonable and necessary, including expenses for:
003.03A1 Transportation of personal property. Transportation costs for a distance beyond 50 miles are not eligible, unless the Agency determines that relocation beyond 50 miles is justified.
003.03A2 Packing, crating, unpacking, and uncrating of the personal property.
003.03A3 Disconnecting, dismantling, removing, reassembling, and reinstalling relocated machinery, equipment, and other personal property, including substitute personal property described in section 003.03A12. This includes connection to utilities available nearby. It also includes modifications to the personal property necessary to adapt it to the replacement structure, the replacement site, or the utilities at the replacement site, and modifications necessary to adapt the utilities at the replacement site to the personal property. (Expenses for providing utilities from the right-of-way to the building or improvement are excluded.)
003.03A4 Storage of the personal property for a period not to exceed 12 months, unless the Agency determines that a longer period is necessary.
003.03A5 Insurance for the replacement value of the personal property in connection with the move and necessary storage.
003.03A6 Any license, permit, or certification required of the displaced person at the replacement location. However, the payment may be based on the remaining useful life of the existing license, permit, or certification.
003.03A7 The replacement value of property lost, stolen, or damaged in the process of moving (not through the fault or negligence of the displaced person, his or her agent, or employee) where insurance covering such loss, theft, or damage is not reasonably available.
003.03A8 Professional services necessary for:
003.03A8a Planning the move of the personal property,
003.03A8b Moving the personal property, and
003.03A8c Installing the relocated personal property at the replacement location.
003.03A9 Relettering signs and replacing stationery on hand at the time of displacement that are made obsolete as a result of the move.
003.03A10 Actual direct loss of tangible personal property incurred as a result of moving or discontinuing the business or farm operation. The payment shall consist of the lesser of:
003.03A10a The fair market value of the item for continued use at the displacement site, less the proceeds from its sale. (To be eligible for payment, the claimant must make a good faith effort to sell the personal property, unless the Agency determines that such effort is not necessary. When payment for property loss is claimed for goods held for sale, the fair market value shall be based on the cost of the goods to the business, not the potential selling price.); or
003.03A10b The estimated cost of moving the item, but with no allowance for storage. (If the business or farm operation is discontinued, the estimated cost shall be based on a moving distance of 50 miles.)
003.03A11 The reasonable cost incurred in attempting to sell an item that is not to be relocated.
003.03A12 Purchase of substitute personal property. If an item of personal property which is used as part of a business or farm operation is not moved but is promptly replaced with a substitute item that performs a comparable function at the replacement site, the displaced person is entitled to payment of the lesser of:
003.03A12a The cost of the substitute item, including installation costs at the replacement site, minus any proceeds from the sale or trade-in of the replaced item; or
003.03A12b The estimated cost of moving and reinstalling the replaced item but with no allowance for storage. At the Agency’s discretion, the estimated cost for a low cost or uncomplicated move may be based on a single bid or estimate.
003.03A13 Searching for a replacement location. A displaced business or farm operation is entitled to reimbursement for actual reasonable expenses, not to exceed $2,500, which are incurred in searching for a replacement location, including:
003.03A13a Transportation.
003.03A13b Meals and lodging away from home.
003.03A13c Time spent searching, based on reasonable salary or earnings.
003.03A13d Fees paid to a real estate agent or broker to locate a replacement site, exclusive of any fees or commissions related to the purchase of such site.
003.03A14 Other moving-related expenses that are not listed as ineligible under section 003.05, as the Agency determines to be reasonable and necessary.
003.03B NOTIFICATION AND INSPECTION The following requirements apply to payments under section 003.03:
003.03B1 The Agency shall inform the displaced person, in writing, of the requirements of sections 003.03B2 and 003.03B3 as soon as possible after the initiation of negotiations. This information may be included in the relocation information provided to the displaced person as set forth in Section 002.03.
003.03B2 The displaced person must provide the Agency reasonable advance written notice of the approximate date of the start of the move or disposition of the personal property and a list of the items to be moved. However, the Agency may waive this notice requirement after documenting its file accordingly.
003.03B3 The displaced person must permit the Agency to make reasonable and timely inspections of the personal property at both the displacement and replacement sites and to monitor the move.
003.03C SELF MOVES If the displaced person elects to take full responsibility for the move of the business or farm operation, the Agency may make a payment for the person’s moving expenses in an amount not to exceed the lower of two acceptable bids or estimates obtained by the Agency or prepared by qualified staff. At the Agency’s discretion, a payment for a low cost or uncomplicated move may be based on a single bid or estimate. Low cost or uncomplicated moves are those with amounts of $5,000 or less.
003.03D TRANSFER OF OWNERSHIP Upon request and in accordance with applicable law, the claimant shall transfer to the Agency ownership of any personal property that has not been moved, sold, or traded in.
003.03E ADVERTISING SIGNS The amount of a payment for direct loss of an advertising sign which is personal property shall be the lesser of:
003.03E1 The depreciated reproduction cost of the sign, as determined by the Agency, less the proceeds from its sale; or
003.03E2 The estimated cost of moving the sign, but with no allowance for storage.
003.04 REESTABLISHMENT EXPENSES - NONRESIDENTIAL MOVES In addition to the payments available under section 003.03, a small business, as defined in section 001.02S, farm or nonprofit organization is entitled to receive a payment, not to exceed $10,000, for eligible expenses actually incurred in relocating and reestablishing such small business, farm or nonprofit organization at a replacement site.
003.04A ELIGIBLE EXPENSES Reestablishment expenses must be reasonable and necessary, as determined by the Agency. They may include, but are not limited to, the following:
003.04A1 Repairs or improvements to the replacement real property as required by federal, state or local law, code or ordinance.
003.04A2 Modifications to the replacement property to accommodate the business operation or make replacement structures suitable for conducting the business.
003.04A3 Construction and installation costs for exterior signing to advertise the business.
003.04A4 Provision of utilities from right-of-way to improvements on the replacement site.
003.04A5 Redecoration or replacement of soiled or worn surfaces at the replacement site, such as paint, paneling, or carpeting.
003.04A6 Licenses, fees and permits when not paid as part of moving expenses.
003.04A7 Feasibility surveys, soil testing and marketing studies.
003.04A8 Advertisement of replacement location.
003.04A9 Professional services in connection with the purchase or lease of a replacement site.
003.04A10 Estimated increased costs of operation during the first two years at the replacement site for such items as:
003.04A10a Lease or rental charges,
003.04A10b Personal or real property taxes,
003.04A10c Insurance premiums, and
003.04A10d Utility charges, excluding impact fees.
003.04A11 Impact fees or one-time assessments for anticipated heavy utility usage.
003.04A12 Other items that the Agency considers essential to the reestablishment of the business.
003.04B INELIGIBLE EXPENSES The following is a nonexclusive listing of reestablishment expenditures not considered to be reasonable, necessary, or otherwise eligible.
003.04B1 Purchase of capital assets, such as, office furniture, filing cabinets, machinery, or trade fixtures.
003.04B2 Purchase of manufacturing materials, production supplies, product inventory, or other items used in the normal course of the business operation.
003.04B3 Interest on money borrowed to make the move or purchase the replacement property.
003.04B4 Payment to a part-time business in the home which does not contribute materially to the household income.
003.05 INELIGIBLE MOVING AND RELATED EXPENSES A displaced person is not entitled to payment for:
003.05A The cost of moving any structure or other real property improvement in which the displaced person reserved ownership. However, this rule does not preclude the computation under section 004.01C4c; or
003.05B Interest on a loan to cover moving expenses; or
003.05C Loss of goodwill; or
003.05D Loss of profits; or
003.05E Loss of trained employees; or
003.05F Any additional operating expenses of a business or farm operation incurred because of operating in a new location except as provided in section 003.04A10; or
003.05G Personal injury; or
003.05H Any legal fee or other cost for preparing a claim for a relocation payment or for representing the claimant before the Agency; or
003.05I Expenses for searching for a replacement dwelling; or
003.05J Physical changes to the real property at the replacement location of a business or farm operation except as provided in sections 003.03A3 and 003.04A; or
003.05K Costs for storage of personal property on real property already owned or leased by the displaced person.
003.06 FIXED PAYMENT FOR MOVING EXPENSES - NONRESIDENTIAL MOVES
003.06A BUSINESS A displaced business may be eligible to choose a fixed payment in lieu of the payments for actual moving and related expenses, and actual reasonable reestablishment expenses provided by sections 003.03 and 003.04. Such fixed payment, except for payment to a nonprofit organization, shall equal the average annual net earnings of the business, as computed in accordance with section 003.06E, but not less than $1,000 nor more than $20,000. The displaced business is eligible for the payment if the Agency determines that:
003.06A1 The business owns or rents personal property which must be moved in connection with such displacement and for which an expense would be incurred in such move; and the business vacates or relocates from its displacement site.
003.06A2 The business cannot be relocated without a substantial loss of its existing patronage (clientele or net earnings). A business is assumed to meet this test unless the Agency determines that it will not suffer a substantial loss of its existing patronage; and
003.06A3 The business is not part of a commercial enterprise having more than three other entities which are not being acquired by the Agency, and which are under the same ownership and engaged in the same or similar business activities.
003.06A4 The business is not operated at a displacement dwelling solely for the purpose of renting such dwelling to others.
003.06A5 The business is not operated at the displacement site solely for the purpose of renting the site to others.
003.06A6 The business contributed materially to the income of the displaced person during the two taxable years prior to displacement (see section 001.02E).
003.06B DETERMINING THE NUMBER OF BUSINESSES In determining whether two or more displaced legal entities constitute a single business which is entitled to only one fixed payment, all pertinent factors shall be considered, including the extent to which:
003.06B1 The same premises and equipment are shared;
003.06B2 Substantially identical or interrelated business functions are carried out and business and financial affairs are commingled;
003.06B3 The entities are held out to the public, and to those customarily dealing with them, as one business; and
003.06B4 The same person or closely related persons own, control, or manage the affairs of the entities.
003.06C FARM OPERATION A displaced farm operation (defined in section 001.02J) may choose a fixed payment, in lieu of the payments for actual moving and related expenses and actual reasonable reestablishment expenses, in an amount equal to its average annual net earnings as computed in accordance with section 003.06E, but not less than $1,000 nor more than $20,000. In the case of a partial acquisition of land which was a farm operation before the acquisition, the fixed payment shall be made only if the Agency determines that:
003.06C1 The acquisition of part of the land caused the operator to be displaced from the farm operation on the remaining land; or
003.06C2 The partial acquisition caused a substantial change in the nature of the farm operation.
003.06D NONPROFIT ORGANIZATION A displaced nonprofit organization may choose a fixed payment of $1,000 to $20,000, in lieu of the payments for actual moving and related expenses and actual reasonable reestablishment expenses, if the Agency determines that it cannot be relocated without a substantial loss of existing patronage (membership or clientele). A nonprofit organization is assumed to meet this test, unless the Agency demonstrates otherwise. Any payment in excess of $1,000 must be supported with financial statements for the two 12-month periods prior to the acquisition. The amount to be used for the payment is the average of two years annual gross revenues less administrative expenses. (See Appendix A, section 003.06D.)
003.06E AVERAGE ANNUAL NET EARNINGS OF A BUSINESS OR FARM OPERATION The average annual net earnings of a business or farm operation are one-half of its net earnings before federal, state, and local income taxes during the two taxable years immediately prior to the taxable year in which it was displaced. If the business or farm was not in operation for the full two taxable years prior to displacement, net earnings shall be based on the actual period of operation at the displacement site during the two taxable years prior to displacement, projected to an annual rate. Average annual net earnings may be based upon a different period of time when the Agency determines it to be more equitable. Net earnings include any compensation obtained from the business or farm operation by its owner, the owners spouse, and dependents. The displaced person shall furnish the Agency proof of net earnings through income tax returns, certified financial statements, or other reasonable evidence which the Agency determines is satisfactory.
004 REPLACEMENT HOUSING PAYMENTS
004.01 REPLACEMENT HOUSING PAYMENT FOR 180-DAY HOMEOWNER-OCCUPANTS
004.01A ELIGIBILITY A displaced person is eligible for the replacement housing payment for a 180-day homeowner-occupant if the person:
004.01A1 Has actually owned and occupied the displacement dwelling for not less than 180 days immediately prior to the initiation of negotiations; and
004.01A2 Purchases and occupies a decent, safe, and sanitary replacement dwelling within one year after the later of the following dates (except that the Agency may extend such one-year period for good cause):
004.01A2a The date the person receives final payment for the displacement dwelling or, in the case of condemnation, the date the full amount of the estimate of just compensation is deposited in the court, or
004.01A2b The date the displacing agency’s obligation under Section 002.04 is met.
004.01B AMOUNT OF PAYMENT The replacement housing payment for an eligible 180-day homeowner-occupant may not exceed $22,500. (See also Section 004.04.) The payment under this section is limited to the amount necessary to relocate to a comparable replacement dwelling within one year from the date the displaced homeowner-occupant is paid for the displacement dwelling, or the date a comparable replacement dwelling is made available to such person, whichever is later. The payment shall be the sum of:
004.01B1 The amount by which the cost of a replacement dwelling exceeds the acquisition cost of the displacement dwelling, as determined in accordance with Section 004.01C; and
004.01B2 The increased interest costs and other debt service costs which are incurred in connection with the mortgage(s) on the replacement dwelling, as determined in accordance with Section 004.01D; and
004.01B3 The reasonable expenses incidental to the purchase of the replacement dwelling, as determined in accordance with Section 004.01E; and
004.01B4 The amount, if any, by which the taxes on the replacement dwelling exceed the taxes on the displacement dwelling, as determined in accordance with Section 004.01F.
004.01C PRICE DIFFERENTIAL
004.01C1 BASIC COMPUTATION The price differential to be paid under Section 004.01B1 is the amount which must be added to the acquisition cost of the displacement dwelling to provide a total amount equal to the lesser of:
004.01C1a The reasonable cost of a comparable replacement dwelling as determined in accordance with Section 004.03A; or
004.01C1b The purchase price of the decent, safe, and sanitary replacement dwelling actually purchased and occupied by the displaced person.
004.01C2 MIXED-USE AND MULTI-FAMILY PROPERTIES If the displacement dwelling was part of a property that contained another dwelling unit and/or space used for non-residential purposes, and/or is located on a lot larger than 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.
004.01C3 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 Section 001.03.)
004.01C4 OWNER RETENTION OF DISPLACEMENT DWELLING If the owner retains ownership of his or her dwelling, moves it from the displacement site, and reoccupies it on a replacement site, the purchase price of the replacement dwelling shall be the sum of:
004.01C4a The cost of moving and restoring the dwelling to a condition comparable to that prior to the move; and
004.01C4b The cost of making the unit a decent, safe, and sanitary replacement dwelling (defined in Section 001.02F); and
004.01C4c The current fair market value for residential use of the replacement site (see Appendix A, Section 004.01C4c), unless the claimant rented the displacement site and there is a reasonable opportunity for the claimant to rent a suitable replacement site; and
004.01C4d The retention value of the dwelling, if such retention value is reflected in the “acquisition cost” used when computing the replacement housing payment.
004.01D INCREASED MORTGAGE INTEREST COSTS The displacing Agency shall determine the factors to be used in computing the amount to be paid to a displaced person under Section 004.01B2. The payment for increased mortgage interest cost shall be the amount which will reduce the mortgage balance on a new mortgage to an amount which could be amortized with the same monthly payment for principal and interest as that for the mortgage(s) on the displacement dwelling. In addition, payments shall include other debt service costs, if not paid as incidental costs, and shall be based only on bona fide mortgages that were valid liens on the displacement dwelling for at least 180 days prior to the initiation of negotiations. Sections 004.01D1 through 004.01D5 shall apply to the computation of the increased mortgage interest costs payment, which payment shall be contingent upon a mortgage being placed on the replacement dwelling.
004.01D1 The payment shall be based on the unpaid mortgage balance(s) on the displacement dwelling; however, in the event the person obtains a smaller mortgage than the mortgage balance(s) computed in the buy down determination, the payment will be prorated and reduced accordingly. (See Appendix A, Section 004.01D.) In the case of a home equity loan, the unpaid balance shall be that balance which existed 180 days prior to the initiation of negotiations or the balance on the date of acquisition, whichever is less.
004.01D2 The payment shall be based on the remaining term of the mortgage(s) on the displacement dwelling or the term of the new mortgage, whichever is shorter. If the term on the new mortgage is shorter and, therefore, used in the determination of the payment, it will be necessary to recalculate a new monthly principal and interest payment for the displacement dwelling based on the interest rate and mortgage balance(s) on the displacement dwelling and the term of the new mortgage. (See Appendix A, Section 004.01D.)
004.01D3 The interest rate on the new mortgage used in determining the amount of the payment shall not exceed the prevailing fixed interest rate for conventional mortgages currently charged by mortgage lending institutions in the area in which the replacement dwelling is located.
004.01D4 Purchaser’s points and loan origination or assumption fees, but not seller’s points, shall be paid to the extent:
004.01D4a They are not paid as incidental expenses;
004.01D4b They do not exceed rates normal to similar real estate transactions in the area;
004.01D4c The Agency determines them to be necessary; and
004.01D4d The computation of such points and fees shall be based on the unpaid mortgage balance on the displacement dwelling, less the amount determined for the reduction of such mortgage balance under this section.
004.01D5 The displaced person shall be advised of the approximate amount of this payment and the conditions that must be met to receive the payment as soon as the facts relative to the persons current mortgage(s) are known and the payment shall be made available at or near the time of closing on the replacement dwelling in order to reduce the new mortgage as intended.
004.01E INCIDENTAL EXPENSES The incidental expenses to be paid under Sections 004.01B3 or 004.02C1 are those necessary and reasonable costs actually incurred by the displaced person incident to the purchase of a replacement dwelling, and customarily paid by the buyer, including:
004.01E1 Legal, closing, and related costs, including those for title search, preparing conveyance instruments, notary fees, preparing surveys and plats, and recording fees.
004.01E2 Lender, FHA, or VA application and appraisal fees.
004.01E3 Loan origination or assumption fees that do not represent prepaid interest.
004.01E4 Certification of structural soundness and termite inspection when required.
004.01E5 Credit report.
004.01E6 Owner’s and mortgagee’s evidence of title, e.g., title insurance, not to exceed the costs for a comparable replacement dwelling.
004.01E7 Escrow agent’s fee.
004.01E8 State revenue or documentary stamps, sales or transfer taxes (not to exceed the costs for a comparable replacement dwelling).
004.01E9 Such other costs as the Agency determines to be incidental to the purchase.
004.01F TAX DIFFERENTIAL
004.01F1 GENERAL Tax differential payments are provided to compensate eligible displaced owner-occupants for the increase in property taxes resulting from relocation for a three-year period. The displacing Agency shall determine the factors to be used in computing the amount to be paid to a displaced person. Tax statements from the county of displacement will provide the information necessary to compute the amount of eligibility. Homestead exemptions on the comparable dwelling or on the replacement dwelling may adversely affect the payment eligibility and, in such cases, the amount of the exemption should be disregarded in the computation.
004.01F2 BASIC COMPUTATION The annual tax differential to be paid under Section 004.01B4 is the amount which must be added to the amount of taxes on the displacement dwelling to provide a total amount equal to the lesser of:
004.01F2a The amount of the taxes on the comparable replacement dwelling; or
004.01F2b The amount of the taxes on the replacement dwelling actually purchased and occupied by the displaced person.
004.01F3 MANNER OF DISBURSEMENT Tax differential payments shall be made in either yearly disbursements or in lump sum payment, at the displacees option. The lump sum amount is the annual amount times three. Displacees who are 62 years of age or older are not eligible for the lump sum payment. Such persons may be eligible for consideration for homestead exemption benefits within the three-year period of eligibility. Elderly displacees will be paid on an annual basis for a three-year period, thus assuring that they will be reimbursed for taxes actually incurred at the replacement dwelling.
004.01F4 TWO OR MORE DWELLINGS If the displacement property contains two or more dwellings, a carve-out must be made to determine the residential taxes attributable to the owner- occupied dwelling. All other dwellings shall not contribute to the displacement property taxes.
004.01F5 OWNER RETENTION OF DISPLACEMENT DWELLING AND NEW CONSTRUCTION In most cases, there will not be a first-year tax differential payment. This is due to the relatively low amount of taxes at the previously unimproved replacement site. Second and third-year payments should reflect a reassessment on the newly improved replacement property.
004.01F6 ACREAGES The Agency must carefully consider the amount of land for an acreage at either the subject, comparable, or replacement sites. The amount of land contributing to the total taxes of any dwelling used in a tax differential computation must reflect the typical residential lot size for the area of the dwelling in question. The taxes attributable to any amount of land in excess of a typical lot size for the area must be carved out of the total residential tax value.
004.01G RENTAL ASSISTANCE PAYMENT FOR 180-DAY HOMEOWNER A 180-day homeowner-occupant, who could be eligible for a replacement housing payment under Section 004.01A but elects to rent a replacement dwelling, is eligible for a rental assistance payment not to exceed $5,250, computed and disbursed in accordance with Section 004.02B.
004.02 REPLACEMENT HOUSING PAYMENT FOR 90-DAY OCCUPANTS
004.02A ELIGIBILITY A tenant or owner-occupant displaced from a dwelling is entitled to a payment not to exceed $5,250 for rental assistance, as computed in accordance with Section 004.02B, or downpayment assistance, as computed in accordance with Section 004.02C, if such displaced person:
004.02A1 Has actually and lawfully occupied the displacement dwelling for at least 90 days immediately prior to the initiation of negotiations; and
004.02A2 Has rented, or purchased, and occupied a decent, safe, and sanitary replacement dwelling within one year (unless the Agency extends this period for good cause) after:
004.02A2a For a tenant, the date he or she moves from the displacement dwelling, or
004.02A2b For an owner-occupant, the later of:
004.02A2b(1) The date he or she receives final payment for the displacement dwelling, or in the case of condemnation, the date the full amount of the estimate of just compensation is deposited with the court; or
004.02A2b(2) The date he or she moves from the displacement dwelling.
004.02B RENTAL ASSISTANCE PAYMENT
004.02B1 AMOUNT OF PAYMENT An eligible displaced person who rents a replacement dwelling is entitled to a payment not to exceed $5,250 for rental assistance. (See also Section 004.04.) Such payment shall be 42 times the amount obtained by subtracting the base monthly rental for the displacement dwelling from the lesser of:
004.02B1a The monthly rent and estimated average monthly cost of utilities for a comparable replacement dwelling; or
004.02B1b The monthly rent and estimated average monthly cost of utilities for the decent, safe, and sanitary replacement dwelling actually occupied by the displaced person.
004.02B2 BASE MONTHLY RENTAL FOR DISPLACEMENT DWELLING The base monthly rental for the displacement dwelling is the lesser of:
004.02B2a The average monthly cost for rent and utilities at the displacement dwelling for a reasonable period prior to displacement, as determined by the Agency. (For an owner-occupant, use the fair market rent for the displacement dwelling. For a tenant who paid little or no rent for the displacement dwelling, use the fair market rent, unless its use would result in a hardship because of the persons income or other circumstances); or
004.02B2b Thirty percent of the persons average gross household income. (If the person refuses to provide appropriate evidence of income or is a dependent, the base monthly rental shall be established solely on the criteria in Section 004.02B2a. A full- time student or resident of an institution may be assumed to be a dependent unless the person demonstrates otherwise.); or
004.02B2c The total of the amounts designated for shelter and utilities if receiving a welfare assistance payment from a program that designates the amounts for shelter and utilities.
004.02B3 MANNER OF DISBURSEMENT A rental assistance payment may, at the Agency’s discretion, be disbursed in either a lump sum or in installments. However, except as limited by Section 004.03F, the full amount vests immediately, whether or not there is any later change in the person’s income or rent, or in the condition or location of the persons housing.
004.02C DOWNPAYMENT ASSISTANCE PAYMENT
004.02C1 AMOUNT OF PAYMENT An eligible displaced person who purchases a replacement dwelling is entitled to a downpayment assistance payment in the amount the person would receive under Section 004.02B if the person rented a comparable replacement dwelling. At the discretion of the Agency, a downpayment assistance payment may be increased to any amount not to exceed $5,250. However, the payment to a displaced homeowner shall not exceed the amount the owner would receive under Section 004.01B if he or she met the 180-day occupancy requirement. An Agency’s discretion to provide the maximum payment shall be exercised in a uniform and consistent manner, so that eligible displaced persons in like circumstances are treated equally. A displaced person eligible to receive a payment as a 180-day owner-occupant under Section 004.01A is not eligible for this payment. (See also Appendix A, Section 004.02C.)
004.02C2 APPLICATION OF PAYMENT The full amount of the replacement housing payment for downpayment assistance must be applied to the purchase price of the replacement dwelling and related incidental expenses.
004.03 ADDITIONAL RULES GOVERNING REPLACEMENT HOUSING PAYMENTS
004.03A 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 Section 001.02D).
004.03A1 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. An adjustment shall be made to the asking price of any dwelling, to the extent justified by local market data (see also Section 002.05A2 and Appendix A, Section 004.03A). An obviously overpriced dwelling may be ignored.
004.03A2 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), the value of such attribute shall be subtracted from the acquisition cost of the displacement dwelling for purposes of computing the payment.
004.03A3 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 buildable residential lot, the Agency may offer to purchase the entire property. If the owner refuses to sell the remainder to the Agency, the fair market value of the remainder may be added to the acquisition cost of the displacement dwelling for purposes of computing the replacement housing payment.
004.03A4 To the extent feasible, comparable replacement dwellings shall be selected from the neighborhood in which the displacement dwelling was located or, if that is not possible, in nearby or similar neighborhoods where housing costs are generally the same or higher.
004.03B 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 decent, safe, and sanitary dwelling as defined in Section 001.02F.
004.03C PURCHASE OF REPLACEMENT DWELLING A displaced person is considered to have met the requirement to purchase a replacement dwelling, if the person:
004.03C1 Purchases a dwelling; or
004.03C2 Purchases and rehabilitates a substandard dwelling; or
004.03C3 Relocates a dwelling which he or she owns or purchases; or
004.03C4 Constructs a dwelling on a site he or she owns or purchases; or
004.03C5 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.
004.03C6 Currently owns a previously purchased dwelling and site, valuation of which shall be on the basis of current fair market value.
004.03D 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 these regulations for a reason beyond his or her control, including:
004.03D1 A disaster, an emergency, or an imminent threat to the public health or welfare, as determined by the President, the federal agency funding the project, or the displacing Agency; or
004.03D2 Another reason, such as a delay in the construction of the replacement dwelling, military reserve duty, or hospital stay, as determined by the Agency.
004.03E CONVERSION OF PAYMENT A displaced person who initially rents a replacement dwelling and receives a rental assistance payment under Section 004.02B is eligible to receive a payment under Sections 004.01 or 004.02C if he or she 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 Sections 004.01 or 004.02C.
004.03F PAYMENT AFTER DEATH A replacement housing payment is personal to the displaced person and upon his or her death the undisbursed portion of any such payment shall not be paid to the heirs or assigns, except that:
004.03F1 The amount attributable to the displaced persons period of actual occupancy of the replacement housing shall be paid.
004.03F2 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 decent, safe, and sanitary replacement dwelling.
004.03F3 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.
004.04 REPLACEMENT HOUSING OF LAST RESORT
004.04A DETERMINATION TO PROVIDE REPLACEMENT HOUSING OF LAST RESORT Whenever a program or project cannot proceed on a timely basis because comparable replacement dwellings are not available within the monetary limits for owners or tenants, as specified in Sections 004.01 or 004.02, as appropriate, the Agency shall provide additional or alternative assistance under the provisions of this section. Any decision to provide last resort housing assistance must be adequately justified either:
004.04A1 On a case-by-case basis, for good cause, which means that appropriate consideration has been given to:
004.04A1a The availability of comparable replacement housing in the program or project area; and
004.04A1b The resources available to provide comparable replacement housing; and
004.04A1c The individual circumstances of the displaced person; or
004.04A2 By a determination that:
004.04A2a There is little, if any, comparable replacement housing available to displaced persons within an entire program or project area; and, therefore, last resort housing assistance is necessary for the area as a whole; and
004.04A2b A program or project cannot be advanced to completion in a timely manner without last resort housing assistance; and
004.04A2c The method selected for providing last resort housing assistance is cost effective, considering all elements which contribute to total program or project costs. (Will project delay justify waiting for less expensive comparable replacement housing to become available?)
004.04B BASIC RIGHTS OF PERSONS TO BE DISPLACED Notwithstanding any provisions of this section, no person shall be required to move from a displacement dwelling unless comparable replacement housing is available to such person. No person may be deprived of any rights the person may have under the Relocation Assistance Act or this rule. The Agency shall not require any displaced person to accept a dwelling provided by the Agency under these procedures (unless the Agency and the displaced person have entered into a contract to do so) in lieu of any acquisition payment or any relocation payment for which the person may otherwise be eligible.
004.04C METHODS OF PROVIDING COMPARABLE REPLACEMENT HOUSING Agencies shall have broad latitude in implementing this section, but implementation shall be for reasonable cost, on a case- by-case basis unless an exception to case-by-case analysis is justified for an entire project.
004.04C1 The methods of providing replacement housing of last resort include, but are not limited to:
004.04C1a A replacement housing payment in excess of the limits set forth in Sections 004.01 or 004.02. A rental assistance subsidy under this section may be provided in installments or in a lump sum at the Agency’s discretion.
004.04C1b Rehabilitation of and/or addition as to an existing replacement dwelling.
004.04C1c The construction of a new replacement dwelling.
004.04C1d The provision of a direct loan, which requires regular amortization or deferred repayment. The loan may be unsecured or secured by the real property. The loan may bear interest or be interest-free.
004.04C1e The relocation and, if necessary, rehabilitation of a dwelling.
004.04C1f The purchase of land and/or a replacement dwelling by the displacing Agency and subsequent sale or lease to, or exchange with a displaced person.
004.04C1g The removal of barriers to the handicapped.
004.04C1h The change in status of the displaced person with his or her concurrence from tenant to homeowner when it is more cost effective to do so, as in cases where a downpayment may be less expensive than a last resort rental assistance payment.
004.04C2 Under special circumstances, consistent with the definition of a comparable replacement dwelling, modified methods of providing replacement housing of last resort permit consideration of replacement housing based on space and physical characteristics different from those in the displacement dwelling (see Appendix A, Section 004.04), including upgraded, but smaller replacement housing that is decent, safe and sanitary and adequate to accommodate individuals or families displaced from marginal or substandard housing with probable functional obsolescence. In no event, however, shall a displaced person be required to move into a dwelling that is not functionally equivalent in accordance with Section 001.02D2.
004.04C3 The Agency shall provide assistance under this section to a displaced person who is not eligible to receive a replacement housing payment under Sections 004.01 and 004.02 because of failure to meet the length of occupancy requirement when comparable replacement rental housing is not available at rental rates within the persons financial means, which is 30 percent of the person’s gross monthly household income. Such assistance shall cover a period of 42 months.
005 MOBILE HOMES
005.01 APPLICABILITY This section describes the requirements governing the provision of relocation payments to a person displaced from a mobile home and/or mobile home site who meets the basic eligibility requirements of this rule. Except as modified by this section, such a displaced person is entitled to a moving expense payment in accordance with Section 003 and a replacement housing payment in accordance with Section 004 to the same extent and subject to the same requirements as persons displaced from conventional dwellings.
005.02 MOVING AND RELATED EXPENSES - MOBILE HOMES
005.02A A homeowner-occupant displaced from a mobile home or mobile homesite is entitled to a payment for the cost of moving his or her mobile home on an actual cost basis in accordance with Section 003.01. A non-occupant owner of a rented mobile home is eligible for actual cost reimbursement under Section 003.03. However, if the mobile home is not acquired, but the homeowner-occupant obtains a replacement housing payment under one of the circumstances described in Section 005.03A3, the owner is not eligible for payment for moving the mobile home, but may be eligible for a payment for moving personal property from the mobile home.
005.02B The following rules apply to payments for actual moving expenses under Section 003.01;
005.02B1 A displaced mobile homeowner, who moves the mobile home to a replacement site, is eligible for the reasonable cost of disassembling, moving, and reassembling any attached appurtenances, such as porches, decks, skirting, and awnings, which were not acquired, anchoring of the unit, and utility “hook-up” charges.
005.02B2 If a mobile home requires repairs and/or modifications so that it can be moved and/or made decent, safe, and sanitary, and the Agency determines that it would be economically feasible to incur the additional expense, the reasonable cost of such repairs and/or modifications is reimbursable.
005.02B3 A nonreturnable mobile home park entrance fee is reimbursable to the extent it does not exceed the fee at a comparable mobile home park, if the person is displaced from a mobile home park or the Agency determines that payment of the fee is necessary to effect relocation.
005.03 REPLACEMENT HOUSING PAYMENT FOR 180-DAY MOBILE HOMEOWNER-OCCUPANTS
005.03A A displaced owner-occupant of a mobile home is entitled to a replacement housing payment, not to exceed $22,500, under Section 004.01 if:
005.03A1 The person both owned the displacement mobile home and occupied it on the displacement site for at least 180 days immediately prior to the initiation of negotiations;
005.03A2 The person meets the other basic eligibility requirements in Section 004.01A; and
005.03A3 The Agency acquires the mobile home and/or mobile home site, or the mobile home is not acquired by the Agency but the owner is displaced from the mobile home because the Agency determines that the mobile home:
005.03A3a Is not and cannot economically be made decent, safe, and sanitary; or
005.03A3b Cannot be relocated without substantial damage or unreasonable cost; or
005.03A3c Cannot be relocated because there is no available comparable replacement site; or
005.03A3d Cannot be relocated because it does not meet mobile home park entrance requirements.
005.03A4 If the mobile home is not acquired and the Agency determines that it is not practical to relocate it, the acquisition cost of the displacement dwelling used when computing the price differential amount, described in Section 004.01C, shall include the salvage value or trade-in value of the mobile home, whichever is higher.
005.03B A displaced owner-occupant of a mobile home is also entitled to a rent supplement described in 004.02 for renting a replacement mobile home lot.
005.03C In determining the amount of the combined payment to a displaced owner-occupant of a mobile home so they may purchase a conventional home for replacement housing, the cost of the comparable conventional dwelling will be the sum of the cost of the comparable mobile home (004.01C1a) and the amount of the lot rent supplement (004.02).
005.04 REPLACEMENT HOUSING PAYMENT FOR 90-DAY MOBILE HOME OCCUPANTS A displaced tenant or owner-occupant of a mobile home is eligible for a replacement housing payment, not to exceed $5,250, under Section 004.02 if:
005.04A The person actually occupied the displacement mobile home on the displacement site for at least 90 days immediately prior to the initiation of negotiations;
005.04B The person meets the other basic eligibility requirements in Section 004.02A; and
005.04C The Agency acquires the mobile home and/or mobile home site, or the mobile home is not acquired by the Agency but the owner or tenant is displaced from the mobile home because of one of the circumstances described in Section 005.03A3.
005.05 ADDITIONAL RULES GOVERNING RELOCATION PAYMENTS TO MOBILE HOME OCCUPANTS
005.05A REPLACEMENT HOUSING PAYMENT BASED ON DWELLING AND SITE Both the mobile home and mobile home site must be considered when computing a replacement housing payment. For example, a displaced mobile home occupant may have owned the displacement mobile home and rented the site or may have rented the displacement mobile home and owned the site. Also, a person may elect to purchase a replacement mobile home and rent a replacement site, or rent a replacement mobile home and purchase a replacement site. In such cases, the total replacement housing payment shall consist of a payment for a dwelling and a payment for a site, each computed under Section 004. However, the total replacement housing payment under Section 004 shall not exceed the maximum payment (either $22,500 or $5,250) permitted under the section that governs the computation for the dwelling. (See also Section 004.03B.)
005.05B COST OF COMPARABLE REPLACEMENT DWELLING
005.05B1 If a comparable replacement mobile home is not available, the replacement housing payment shall be computed on the basis of the reasonable cost of a conventional comparable replacement dwelling.
005.05B2 If the Agency determines that it would be practical to relocate the mobile home, but the owner-occupant elects not to do so, the Agency may determine that, for purposes of computing the price differential under Section 004.01C, the cost of a comparable replacement dwelling is the sum of:
005.05B2a The value of the mobile home,
005.05B2b The cost of any necessary repairs or modifications, and
005.05B2c The estimated cost of moving the mobile home to a replacement site.
005.05C INITIATION OF NEGOTIATIONS If the mobile home is not actually acquired, but the occupant is considered displaced under this rule, the “initiation of negotiations” is the initiation of negotiations to acquire the land, or, if the land is not acquired, the written notification that he or she is a displaced person under this rule.
005.05D PERSON MOVES MOBILE HOME If the owner is reimbursed for the cost of moving the mobile home under this rule, he or she is not eligible to receive a replacement housing payment to assist in purchasing or renting a replacement mobile home. The person may, however, be eligible for assistance in purchasing or renting a replacement site.
005.05E PARTIAL ACQUISITION MOBILE HOME PARK The acquisition of a portion of a mobile home park property may leave a remaining part of the property that is not adequate to continue the operation of the park. If the Agency determines that a mobile home located in the remaining part of the property must be moved as direct result of the project, the owner and any tenant shall be considered a displaced person who is entitled to relocation payments and other assistance under this rule.
ANNOTATION
Title 410 Chapter 5
Enabling Legislation §4-108 through 4-111, and 76-1214 through 76.1242 Neb. Rev. Stat.
APPENDIX A - ADDITIONAL INFORMATION
This appendix provides additional information to explain the intent of certain provisions.
GENERAL (001)
DEFINITIONS (001.02)
DEFINITION OF COMPARABLE REPLACEMENT DWELLING (001.02D)
The requirement in Section 001.02D2 that a comparable replacement dwelling be “functionally equivalent” to the displacement dwelling means that it must perform the same function, provide the same utility, and be capable of contributing to a comparable style of living as the displacement dwelling. While it need not possess every feature of the displacement dwelling, the principal features must be present.
For example, if the displacement dwelling contains a pantry and a similar dwelling is not available, a replacement dwelling with ample kitchen cupboards may be acceptable. Insulated and heated space in a garage might prove an adequate substitute for basement workshop space. A dining area may substitute for a separate dining room. Under some circumstances, attic space could substitute for basement space for storage purposes, and vice versa.
Only in unusual circumstances may a comparable replacement dwelling contain fewer rooms or, consequentially less living space than the displacement dwelling. Such may be the case when a decent, safe, and sanitary replacement dwelling (which by definition is “adequate to accommodate” the displaced person) may be found to be “functionally equivalent” to a larger but very run-down substandard displacement dwelling.
Section 001.02D7 requires that a comparable replacement dwelling for a person who is not receiving assistance under any government housing program before displacement must be currently available on the private market without any subsidy under a government housing program.
A public housing unit may qualify as a comparable replacement dwelling only for a person displaced from a public housing unit; a privately-owned dwelling with a housing program subsidy tied to the unit may qualify as a comparable replacement dwelling only for a person displaced from a similarly subsidized unit or public housing; a housing program subsidy to a person (not tied to the building), such as a HUD Section 8 Existing Housing Program Certificate or a Housing Voucher, may be reflected in an offer of a comparable replacement dwelling to a person receiving a similar subsidy or occupying a privately-owned subsidized unit or public housing unit before displacement.
However, nothing in this rule prohibits an Agency from offering, or precludes a person from accepting, assistance under a government housing program, even if the person did not receive similar assistance before displacement. However, the Agency is obligated to inform the person of his or her options under this rule. (If a person accepts assistance under a government housing program, the rental assistance payment under Section 004.02 would be computed on the basis of the persons actual out-of-pocket cost for the replacement housing.)
PERSONS NOT DISPLACED. (001.02G2)
Section 001.2G2d recognizes that there are circumstances where the acquisition of real property takes place without the intent or necessity that an occupant of the property be permanently displaced. Because such occupants are not considered “displaced persons” under this rule, great care must be exercised to ensure that they are treated fairly and equitably. For example, if the tenant-occupant of a dwelling will not be displaced, but is required to relocate temporarily in connection with the project, the temporarily-occupied housing must be decent, safe, and sanitary and the tenant must be reimbursed for all reasonable out-of-pocket expenses incurred in connection with the temporary relocation, including moving expenses and increased housing costs during the temporary relocation.
It is also noted that any person who disagrees with the Agencys determination that he or she is not a displaced person under this rule may file an appeal in accordance with Section 001.05.
Section 001.02G2e refers to voluntary acquisitions. These transactions must meet the following conditions:
(i) No specific site or property needs to be acquired, although the Agency may limit its search for alternative sites to a general geographic area. Where an Agency wishes to purchase more than one site within a geographic area on this basis, all owners are to be treated similarly.
(ii) The property to be acquired is not part of an intended, planned, or designated project area where all or substantially all of the property within the area is to be acquired within specific time limits.
(iii) The Agency will not acquire the property in the event negotiations fail to result in an amicable agreement, and the owner is so informed in writing.
(iv) The Agency will inform the owner of what it believes to be the fair market value of the property; or
Acquisitions for programs or projects undertaken by an Agency or person that does not have authority to acquire property by eminent domain, provided that such Agency or person shall:
(i) Prior to making an offer for the property, clearly advise the owner that it is unable to acquire the property in the event negotiations fail to result in an amicable agreement; and
(ii) Inform the owner of what it believes to be fair market value of the property.
INITIATION OF NEGOTIATIONS. (001.02K)
This section of the rule provides a special definition for acquisitions and displacements under Public Law 96-510 or Superfund. These activities differ under Superfund in that relocation may precede acquisition, the reverse of the normal sequence. Superfund is a program designed to clean up hazardous waste sites. When such a site is discovered, it may be necessary, in certain limited circumstances, to alert the public to the danger and to the advisability of moving immediately. If a decision is made later to permanently relocate such persons, those who had moved earlier would no longer be on site when a formal, written offer to acquire the property was made and thus would lose their eligibility for a replacement housing payment. In order to prevent this unfair outcome, we have provided a definition which is based on the public health advisory or announcement of permanent relocation.
SMALL BUSINESS. (001.02S)
Section 001.02S is intended to emphasize “a location of economic activity.” In doing this, it is clear that such businesses as a coin-operated facility or storage building visited by employees on a regular basis, daily or at least weekly, would qualify for reestablishment expenses. This would also include an occupied rental property at which the owner maintains personal property and for which rental property the owner is responsible for maintenance.
NO DUPLICATION OF PAYMENTS. (001.03)
This section prohibits an Agency from making a payment to a person under these regulations that would duplicate another payment the person receives under federal, state, or local law. The Agency is not required to conduct an exhaustive search for such other payments; it is only required to avoid creating a duplication based on the Agency’s knowledge at the time a payment under these regulations is computed.
GENERAL RELOCATION REQUIREMENTS (002)
AVAILABILITY OF COMPARABLE REPLACEMENT DWELLING BEFORE DISPLACEMENT
GENERAL. (002.04A)
This provision requires that no one may be required to move from a dwelling without one comparable replacement dwelling having been made available. In addition, Section 002.04A requires that, “Where possible, three or more comparable replacement dwellings shall be made available.” Thus, the basic standard for the number of referrals required under this section is three. Only in situations where three comparable replacement dwellings are not available (e.g., when the local housing market does not contain three comparable dwellings) may the Agency make fewer than three referrals.
RELOCATION ASSISTANCE ADVISORY SERVICES (002.05)
Section 002.05B2b(3) is intended to emphasize that if the comparable replacement dwellings are located in areas of minority concentration, minority persons should, if possible, also be given opportunities to relocate to replacement dwellings not located in such areas.
GENERAL REQUIREMENTS - CLAIMS FOR RELOCATION PAYMENTS (002.07)
Section 002.07A allows an Agency to make a payment for low cost or uncomplicated moves without additional documentation, as long as the payment is limited to the amount of the lowest acceptable bid or estimate, as provided for in Section 003.03C.
PAYMENT FOR MOVING AND RELATED EXPENSES (003)
FIXED PAYMENT FOR MOVING EXPENSES - NONRESIDENTIAL MOVES. (003.06)
NONPROFIT ORGANIZATIONS (003.06D)
Gross revenues may include membership fees, class fees, cash donations, tithes, receipts from sales or other forms of fund collection that enables the nonprofit organization to operate. Administrative expenses are those for administrative support such as rent, utilities, salaries, advertising and other like items as well as fund raising expenses. Operating expenses for carrying out the purposes of the nonprofit organization are not included in administrative expenses. The monetary receipts and expense amounts may be verified with certified financial statements or financial documents required by public agencies.
REPLACEMENT HOUSING PAYMENTS (004)
REPLACEMENT HOUSING PAYMENT FOR 180-DAY HOMEOWNER OCCUPANTS (004.01)
The provision for extending eligibility for a replacement housing payment beyond the one-year period for good cause means that an extension may be granted if some event beyond the control of the displaced person such as acute or life threatening illness, bad weather preventing the completion of construction of a replacement dwelling or other like circumstances should cause delays in occupying a decent, safe, and sanitary replacement dwelling. (004.01A2) The provision in Section 004.01C4c to use the current fair market value for residential use does not mean the Agency must have the property appraised. Any reasonable method for arriving at the fair market value may be used. (004.01C)
INCREASE MORTGAGE INTEREST COSTS. (004.01D)
The provision in Section 004.01D set forth the factors to be used in computing the payment that will be required to reduce a person’s replacement mortgage (added to the downpayment) to an amount which can be amortized at the same monthly payment for principal and interest over the same period of time as the remaining term on the displacement mortgages. If the term on the new mortgage is shorter and, therefore, used in the determination of the payment, it will be necessary to recalculate a new monthly principal and interest payment for the displacement dwelling based on the interest rate and mortgage balance(s) on the displacement dwelling and the term of the new mortgage. This payment is commonly known as the “buydown”.
The remaining principal balance, the interest rate, and monthly principal and interest payments for the old mortgage as well as the interest rate, points and term for the new mortgage must be known to compute the increased mortgage interest costs. If the combination of interest and points for the new mortgage exceeds the current prevailing fixed interest rate and points for conventional mortgages and there is no justification for the excessive rate, then the current prevailing fixed interest rate and points shall be used in the computations. Justification may be the unavailability of the current prevailing rate due to the amount of the new mortgage, credit difficulties, or other similar reasons.
SAMPLE COMPUTATION
Old Mortgage:
| Remaining Principal Balance ............................ | $50,000.00 |
|---|---|
| Monthly Payment (principal and interest) .......... | $458.22 |
| Interest Rate (percent) ...................................... | 7.0% |
New Mortgage:
| Interest rate (percent).......................................... | 10.0% |
|---|---|
| Points .................................................................. | 3 |
| Term (years)........................................................ | 15 |
Remaining term of the old mortgage is determined to be 174 months. (Determining, or computing, the actual remaining term is more reliable than using the data supplied by the mortgagee.) However, if it is shorter, use the term of the new mortgage and compute the needed monthly payment.
The amount to be financed to maintain a monthly payment of $458.22 at 10% is $42,010.18.
| Remaining principal balance on old mortgage…… | $50,000.00 |
|---|---|
| Less amount of reduced loan………………………. | -$42,010.18 |
| Increased mortgage interest costs………………… | $7,989.82 |
| 3 points on $42,010.18……………………………… | $1,260.31 |
| Total buydown necessary to maintain payments at $458.22/month | $9,250.13 |
If the new mortgage actually obtained is less than the computed amount for a new mortgage ($42,010.18), the buydown shall be prorated accordingly. If the actual mortgage obtained in our example were $35,000, the buydown payment would be $7,706.57 ($35,000 divided by $42,010.18 =.8331 $9,250.13 x .8331 = $7,706.57).
The following sample is for computations involving a shorter term at the replacement property.
Old Mortgage:
| Remaining Principal Balance ................................... | $50,000.00 |
|---|---|
| Monthly Payment (principal and interest) ................ | $458.22 |
| Interest Rate (percent) ............................................ | 7.0% |
| Remaining Term (months)…………………………… | 174.0% |
New Mortgage:
| Interest rate (percent)............................................... | 10.0% |
|---|---|
| Points ....................................................................... | 3 |
| Term (months).......................................................... | 120 |
Because the new term is less than the remaining term at the displacement dwelling, it is necessary to recalculate a new monthly principal and interest payment for the displacement dwelling based on the interest rate and mortgage balance on the old mortgage and the term of the new mortgage. The monthly payment for $50,000.00 at 7% for 120 months is $580.54.
The amount to be financed to maintain a monthly payment of $580.54 at 10% is $43,930.14.
| Remaining principal balance on old mortgage…….. | $50,000.00 |
|---|---|
| Less amount of reduced loan………………………... | $43,930.14 |
| Increased mortgage interest costs………………….. | $6,069.86 |
| 3 points on $43,930.14……………………………….. | $1,317.90 |
| Total buydown necessary to maintain payments at $580.54/month | $7,387.76 |
The Agency is obligated to inform the person of the approximate amount of this payment and that he or she must obtain a mortgage of at least the same amount as the computed buydown mortgage amount and for at least the same term in order to receive the full amount of this payment. The displacee is also to be advised of the interest rate and points used to calculate the payment.
REPLACEMENT HOUSING PAYMENT FOR 90-DAY OCCUPANTS. (004.02)
DOWNPAYMENT ASSISTANCE PAYMENT. (004.02C)
The downpayment assistance provisions in Section 004.02C are intended to limit such assistance to the amount of the computed rental assistance payment for a tenant or an eligible homeowner. It does, however, provide the latitude for Agency discretion in offering downpayment assistance which exceeds the computed rental assistance payment, up to the $5,250 statutory maximum. This does not mean, however, that such Agency discretion may be exercised in a selective or discriminatory fashion. The displacing Agency should develop a policy which affords equal treatment for persons in like circumstances and this policy should be applied uniformly throughout the Agency’s programs or projects. It is recommended that displacing Agencies coordinate with each other to reach a consensus on a uniform procedure for the state and/or the local jurisdiction.
For purposes of this section, the term downpayment means the downpayment ordinarily required to obtain conventional loan financing for the decent, safe, and sanitary dwelling actually purchased and occupied. However, if the downpayment actually required of a displaced person for the purchase of the replacement dwelling exceeds the amount ordinarily required, the amount of the downpayment may be the amount which the Agency determines is necessary.
ADDITIONAL RULES GOVERNING REPLACEMENT HOUSING PAYMENTS. (004.03)
DETERMINING COST OF COMPARABLE REPLACEMENT DWELLING (004.03A)
The procedure for adjusting the asking price of comparable replacement dwellings requires that the Agency provide advisory assistance to the displaced person concerning negotiations so that he or she may enter the market as a knowledgeable buyer. If a displaced person elects to buy one of the selected comparables, but cannot acquire the property for the adjusted price, it is appropriate to increase the replacement housing payment to the actual purchase amount. (004.03A1)
REPLACEMENT HOUSING OF LAST RESORT. (004.04)
BASIC RIGHTS OF PERSONS TO BE DISPLACED. (004.04B)
This paragraph affirms the right of a 180-day homeowner-occupant, who is eligible for a replacement housing payment under Section 004.01, to a reasonable opportunity to purchase a comparable replacement dwelling. However, it should be read in conjunction with the definition of “owner of a dwelling” in Section 001.02P.
The Agency is not required to provide persons owning only a fractional interest in the displacement dwelling a greater level of assistance to purchase a replacement dwelling than the Agency would be required to provide such persons if they owned fee simple title to the displacement dwelling. If such assistance is not sufficient to buy a replacement dwelling, the Agency may provide additional purchase assistance or rental assistance.
METHODS OF PROVIDING COMPARABLE REPLACEMENT HOUSING (004.04C)
The use of cost effective means of providing comparable replacement housing is implied throughout the section. The term “reasonable cost” is used here to underline the fact that while innovative means to provide housing are encouraged, they should be cost-effective.
Section 004.04C2 permits the use of last resort housing, in special cases, which may involve variations from the usual methods of obtaining comparability. However, it should be specially noted that such variation should never result in a lowering of housing standards nor should it ever result in a lower quality of living style for the displaced person. The physical characteristics of the comparable replacement dwelling may be dissimilar to those of the displacement dwelling but they may never be inferior.
One example might be the use of a new mobile home to replace a very substandard conventional dwelling in an area where comparable conventional dwellings are not available.
Another example could be the use of a superior, but smaller decent, safe and sanitary dwelling to replace a large, old substandard dwelling, only a portion of which is being used as living quarters by the occupants and no other large comparable dwellings are available in the area.
MOBILE HOMES (005)
REPLACEMENT HOUSING PAYMENT FOR 180-DAY MOBILE HOMEOWNER-OCCUPANTS (005.03)
A 180-day owner-occupant who is displaced from a mobile home on a rented site may be eligible for a replacement housing payment for a dwelling computed under Section 004.01 and a replacement housing payment for site computed under Section 004.02. A 180-day owner-occupant of both the mobile home and the site, who relocates the mobile home, may be eligible for a replacement housing payment under Section 004.01 to assist in the purchase of a replacement site or, under Section 004.02, to assist in renting a replacement site.
History
- Effective 2019-06-08
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.