Why a Displaced Business Should Be Concerned with Relocation Assistance Advisory Services, and Why a Displacing Public Agency Should Diligently Provide These Services
Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA)
On public projects where a public agency is using eminent domain laws to condemn private property, the agency often elects to, or in many cases is required to, follow the URA. For example, a department of transportation might use eminent domain laws in the case for expanding a highway right of way, or adding a new light rail line.
When the project includes federal funds, the public agency is required to follow the URA. When the URA is used, it provides regulations and guidelines that the public agency must follow when acquiring private property and displacing business and residential tenants for the agency’s project. The URA’s regulations are the rights of the property owners, displaced businesses, and displaced residents to receive from the displacing public agency.
Relocation Assistance Advisory Services
The URA requires a condemning public agency to provide six key relocation advisory services to a displaced business. A list of these services follows – Relocation Advisory Service #1-6. I have also included my comments for each of these services as a relocation consultant working for displaced businesses, as well as, working as a relocation agent for public agencies providing these services.
Relocation Assistance Advisory Services vs. Relocation Consulting Services
Relocation Assistance Advisory Services, not to be confused with Relocation Consulting Services, also known as Move Planning Services, are a required service provided by a condemning public agency to a displaced person or business. Relocation Consulting Services are provided by a private consultant hired by the displaced business to plan and coordinate their relocation. Relocation consulting services are a reimbursable relocation expense eligible to the displaced business within the URA regulations.
Success and Failure of Relocation Assistance Advisory Services
When a public agency fulfills these services properly, they will gain important information that will help the agency prepare for the timely use, implementation, and payment of the relocation benefits provided. This is meant to better assist the displaced business to successfully relocate with minimal downtime and minimal out of pocket expenses.
When the public agency fails to fulfill these services, they find themselves ill prepared to provide the necessary relocation benefits in a timely manner. Delay causes unnecessary damages to the displaced business including excessive downtime and excessive out of pocket expenses. For the public agency, they will likely experience needless relocation payments, and unnecessary expenses for appeals and legal fees. The community may also suffer from a loss of jobs, local tax revenues, and productivity if the displaced business fails to survive the relocation.
Appeal or Tort Claim of Relocation Assistance Advisory Services
A business can appeal most anything related to their relocation benefits. Unfortunately, most of the damages caused by the lack of these Relocation Advisory Services are non-compensable within the URA, leaving little to no recovery of costs or damages from the appeal process. A lack of these services inflicts damages in the way of loss of income, loss of customers, and loss of employees, which are specifically excluded from eligible cost reimbursements. Increased costs for the business are another effect, falling into the capped Reestablishment category of the URA and leaving little if any recovery of costs. In addition to or in place of an appeal, some businesses have had success treating this issue as a Tort claim.
CFR Title 49, §24.205(c) Relocation Assistance Advisory Services
This section of the URA outlines the Services to be provided as follows:
Services to be provided. The advisory program shall include such measures, facilities, and services as may be necessary or appropriate in order to:
- Determine, for nonresidential (businesses, farm, and nonprofit organizations) displacements, the relocation needs, and preferences of each business (farm and nonprofit organization) to be displaced.
- Explain the relocation payments and other assistance for which the business may be eligible, the related eligibility requirements, and the procedures for obtaining such assistance.
- This shall include a personal interview with each business.
- At a minimum, interviews with displaced business owners and operators should include the following items:
Relocation Advisory Service #1
- 24.205(c)(2)(i)(A) The business’s replacement site requirements1, current lease terms2 and other contractual obligations3, and the financial capacity of the business to accomplish the move4.
Comments on replacement sites and financial capacity to relocate:
- Replacement site requirements – Changed zoning may mean relocating outside of the business’s customer and/or employee base. Some businesses may have special needs that are not readily found in the market place.
- Current lease terms – Leases that are several years old may be very different from what is currently available in the market, causing extra expenses for many years.
- Contractual obligations – We often find that the displaced property owner or landlord sold the business that is currently the tenant and is now receiving payments for the sale of the business. This creates a need and desire to continue receiving those payments by providing a replacement property to the tenant. In addition, the business may have a contract to supply products or services that may be disrupted by the relocation.
- Financial capacity – Most businesses having to relocate do not have the financial capacity or cash flow to finance their own business relocation. Additionally, the move can drain any available cash and cause a loss of sales or income during the move. Knowing the financial capacity of the displaced business should alert the public agency to be ready to provide available tools within the Relocation Guidelines that will assist the business to minimize downtime and out of pocket costs for the move. This may include advance payments, recommending professional services, and assuring the displaced business understands which relocation costs are eligible and not eligible for reimbursement.
Relocation Advisory Service #2
- 24.205(c)(2)(i)(B) Determination of the need for outside specialists in accordance with §24.301(g)(12) that will be required to assist in planning the move, assistance in the actual move, and in the reinstallation of machinery and/or other personal property.
Comments on outside specialists:
Most, but not all, displaced businesses need some level of outside specialist support. The public agency, through their agents and consultants, must recognize early on in the project this need for specialists to help a business successfully relocate in a timely timeframe.
Otherwise, the displaced person can also decide that they need a specialist. A specialist may be needed to deal with the business’s unique needs, or, to help free up time for the business owner and key personnel so they can focus on running the business, while the specialist undertakes the planning and coordination of the business move.
I like to see a displaced business have the opportunity to have one person in charge of planning and coordinating their move who will assist them with making the move as though it had been planned and executed for sound business reasons, rather than eminent domain reasons.
Choosing to use a relocation consultant is similar to choosing the use of a general contractor to work on your house compared to you hiring and managing all of the subcontractors yourself and dealing with issues you’re not used to handling, all while you’re at your office working at your day job. There are good reasons why general contractors exist; they are key to achieving your desired results including quality, timeliness, and budget, particularly when multiple trades or vendors are involved.
Much like a general contractor, a relocation consultant can plan, organize, coordinate, and schedule other experts, contractors, and vendors in a manner that minimizes unnecessary costs and downtime, where the business owner participates as much or as little as they desire while they continue to run their business. An example of avoiding downtime is recognizing equipment that needs code upgrades before it’s disconnected and moved, or, as simple as preparing a layout plan for the new location during the planning stage that will maintain or improve the flow of operations or visual appearance to the customers. Unfortunately, relocation agents working for the government agency just don’t have that much time or budget to dedicate to a single displaced business.
For many reasons, it’s helpful for the relocation consultant to be conversant on eminent domain issues. Particularly because the most displaced businesses are not prepared financially for the move. The relocation consultant can help disseminate between acquisition and relocation issues, and assist with qualifying the business for available funding sources such as the relocation benefits. Additionally, many relocation decisions are based on available finances. During the planning stage of the relocation, the business needs to know what they will have to pay for out of pocket and where relocation benefits will help them. This is where the relocation consultant can to offer critical guidance. This marks an important difference when planning the relocation and can mean the difference between the business moving as-is, with the possibility of being in a worsened business situation, or moving in a manner that helps them continue their business success equal to or better than they experienced at their displacement location.
Relocation Advisory Service #3
- 24.205(c)(2)(i)(C) For businesses, an identification and resolution of personalty/realty issues. Every effort must be made to identify and resolve realty/personalty issues prior to, or at the time of, the appraisal of the property.
Comments on personalty and realty issues:
When a fixture is classified as realty, the public agency’s payment for the fixture is made to the owner based on its depreciated value, if it is determined to have value. The depreciated value is usually less than the cost of replacing the item. Additionally, the realty payment often goes to the property owner or the real property mortgage holder rather than the displaced business. Finally, realty is not eligible for relocation benefits, leaving the owner to pay from their own pocket to replace this item at their new location. It’s clearly very important to get this right.
Knowledge of the business, personal property, and the laws that distinguish personalty from realty are key to proper personalty/realty classification. Unfortunately, too often the relocation agent and the appraiser do not collaborate on personalty and realty issues or one is not conversant on the issue, leaving flawed or incomplete appraisal reports. This occurrence creates confusion and debate during the business move causing additional relocation costs, delay, and downtime.
To improve on this issue, appraisers (real property appraisers, and FF&E appraisers) should be accompanied on the appraisal walk-through by a relocation agent (as the URA suggests) who has knowledge on this issue. Discussions between those parties should resolve most personalty/realty issues before they become a relocation problem.
Additionally, the business owner will benefit from having their own relocation consultant who is knowledgeable on these issues and involved prior to and during the appraisal walk-through, particularly when there is equipment and machinery involved. This will enhance the collaboration and understanding among all parties including the business owner, which will improve the relocation planning and process. In addition, the cost for this service is often a reimbursable expense to the displaced business or property owner.
Relocation Advisory Service #4
- 24.205(c)(2)(i)(D) An estimate of the time required for the business to vacate the site.
Comments on estimated time to vacate:
A relocation schedule must be prepared to take advantage of the available time to properly plan, prepare, and perform the move. Without a schedule, a business may incur unplanned and unnecessary downtime. Downtime can cause a business to lose employees and customers along with income and profits, none of which are eligible for reimbursement, and any of which can cause business disruption and possibly devastation.
For the public agency, a relocation schedule is a tool to reduce unnecessary relocation costs and missed vacate dates. It will also improve the agency’s success with relocating displaced businesses, and improve the usage of public funds.
At a minimum, the schedule should include three milestones: 1) Notice of Eligibility, 2) Acquire Replacement Property, and 3) Vacate Displacement Property. Including some known tasks between these milestones will produce a basic beginning schedule as shown below (dates and task durations are excluded for clarity).
- Notice of Eligibility
- Plan relocation
- Search for replacement site
- Acquire Replacement Property
- Plan relocation
- Design and permitting for replacement property improvements
- Prepare replacement property to receive relocated personal property
- Send change of address notices
- Disconnect, move, and reinstall personal property
- Vacate Displacement Property
- Finalize move
This basic schedule will give the business owner a starting point for planning purposes. The public agency’s relocation agent should be cautious of including too much detail for liability reasons. Additional tasks and durations can be added, as they become known by the business owner or the relocation consultant.
This basic schedule may be more than is required by this regulation, however, it is an excellent tool that supports the required task. The schedule also makes a significant improvement to most business relocations and is well worth the small amount of effort invested in its preparation for the benefits it produces.
Relocation Advisory Service #5
- 24.205(c)(2)(i)(E) An estimate of the anticipated difficulty in locating a replacement property.
Comments on locating a replacement property:
Planning and finding the perfect replacement property that’s affordable and in the proper location can be challenging in the best of times. Because the displaced business was not likely in the process of planning their move before the notice to vacate was delivered, it’s critical for the business to find the right replacement property more quickly than under normal conditions to allow the needed time to prepare the replacement property for the business and to relocate the business. Otherwise, if the vacate date is too near, the business may incur downtime. However, spending the necessary time to find the right replacement property can be essential to the longevity of the displaced business. There is a fine balance between finding the perfect replacement property and avoiding business downtime. That balance point varies for each business.
The fast-food industry is a good example of the effort that goes into selecting store locations. One prosperous displaced fast-food business couldn’t wait for the normal, long, yet successful process of site selection provided by the franchisor, and there was only a year to go until their vacate date. The franchisee short-circuited the proven franchisor’s process in order to quickly find the replacement property without any assistance of the franchisor. The franchisee leased and successfully prepared the replacement site, opening the doors just in time to vacate the displacement property, avoiding any business downtime.
However, during the first year of operating at the replacement property, the franchisee spent an extraordinary amount of money on advertising in an effort to attract customers to his new location and struggled with poor sales. Within the second year of operating at the replacement property while continuing to advertise, the business closed for lack of cash flow resulting from too few sales.
The project’s vacate date will be fixed and unlikely to change. Early on in the project, the displaced business needs to fully understand the project’s inflexible timeline, the tasks, and challenges facing them. To hasten the property search, the displacee needs to know how relocation benefits may or may not help make a particular property suitable and affordable for their business. It is the displacing public agency’s job and/or challenge to inform the displaced business of these issues to help them avoid downtime, as well as find an affordable replacement property that fits their needs, all while meeting the project’s schedule. This begins with the public agency estimating the difficulty in locating a replacement property.
Relocation Advisory Service #6
- 24.205(c)(2)(i)(F) An identification of any advance relocation payments required for the move, and the Agency’s legal capacity to provide them.
Comments on advance relocation payments:
Advance payments are often necessary, as well as critical for a displaced business, which often has shallow pockets. Advance payments are often needed for ordering substitute personal property, ordering materials needed for the reinstallation of personal property, and starting design services. A public agency must recognize the need and be ready to offer advance payments. Otherwise, the business relocation may stall at the beginning of the process, which could cause missing the vacate date and delaying the public project, and can cause an unnecessary hardship on the displaced business.
These six Relocation Assistance Advisory Services are critical to prepare for and to accomplish a successful business relocation. Any shortcomings in their implementation leave a wider opportunity for unnecessary costs and downtime to occur.
The public agency must initiate the inquiries of the business to gain the information necessary to properly provide relocation benefits. It is the business’s responsibility to provide the necessary information to the public agency.
I would be pleased to answer any questions you may have on this matter or other eminent domain and condemnation matters you may want to discuss as they relate to relocation and cost-to-cure. Please contact me either by phone 425-398-5708 or email moc.C1498257396LLlei1498257396naDny1498257396traM@1498257396nytra1498257396M1498257396. I look forward to hearing from you.
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