Highway Right-of-Way Issues in Construction Projects

[MikePhua]

The Legal Backbone of Right-of-Way Acquisition
Highway right-of-way (ROW) issues are deeply rooted in constitutional law and land use policy. The Fifth Amendment of the U.S. Constitution guarantees that private property cannot be taken for public use without just compensation, while the Fourteenth Amendment ensures due process in such takings. These principles form the basis of eminent domain, the legal mechanism by which governments acquire land for infrastructure projects.
In practice, ROW acquisition involves a complex interplay between federal, state, and local regulations. Agencies must identify the exact parcels needed, determine ownership, assess environmental impacts, and negotiate or litigate compensation. The process is often guided by state-specific statutes and federal guidelines, especially when federal funding is involved.
Terminology Notes

• Right-of-way (ROW): A legal right to pass through property owned by another, typically for transportation or utility infrastructure.
  
• Eminent domain: The power of the government to take private property for public use, with compensation.
  
• Temporary Construction Area (TCA): A designated zone for short-term use during construction, not permanently acquired.
  
• Encroachment: Unauthorized use or occupation of public ROW by private structures or activities.
  

Site Preparation and Utility Coordination
Before construction begins, site preparation must address grading, drainage, erosion control, and utility relocation. This phase is critical to avoid delays and legal disputes. Engineers and contractors must identify all existing utilities—water, sewer, gas, electric, telecom—and coordinate with utility owners to relocate or protect infrastructure.
Typical site preparation steps include:

• Clearing and grubbing vegetation
  
• Installing sediment barriers and stormwater controls
  
• Rough grading and topsoil management
  
• Flagging protected zones such as wetlands or buffer strips
  
• Relocating utilities and verifying easement boundaries
  

In Kentucky, for example, erosion control plans are required for any site disturbing more than one acre. These plans must include Best Management Practices (BMPs) such as silt fences, sediment basins, and inlet protection. Contractors are responsible for maintaining these controls throughout the project lifecycle.
Common ROW Planning Mistakes
Agencies and consultants often make avoidable errors during ROW planning. These include:

• Failing to identify all encroachments, such as sheds or fences
  
• Omitting temporary impacts in the plan set
  
• Mislabeling property lines or municipal layout boundaries
  
• Overlooking easement overlaps or outdated ownership records
  

To mitigate these risks, surveyors must be involved early—ideally before the 25% design milestone. Their responsibilities include verifying layout baselines, confirming deed records, and ensuring that all proposed takings are accurately depicted.
A Story from Massachusetts
In 2018, a road widening project in western Massachusetts was delayed by six months due to a misidentified property line. A small shed had been built decades earlier on what was assumed to be private land, but it actually sat within the public ROW. The oversight led to legal challenges and forced a redesign of the drainage system. After hiring a prequalified surveyor to reverify all parcel boundaries, the project resumed with updated ROW plans. This incident underscores the importance of precision and early verification.
Coordination with Railroads and Utilities
Highway projects often intersect with railroad corridors and utility easements. These entities have their own legal protections and operational requirements. Coordination must include:

• Formal agreements for access and relocation
  
• Scheduling outages or service interruptions
  
• Designing crossings or protective structures
  
• Ensuring compliance with federal railroad safety standards
  

Failure to coordinate properly can result in costly delays or safety violations. For example, a 2021 highway expansion in Ohio was halted when fiber optic lines were discovered beneath the proposed shoulder. The utility owner had not been notified, and relocation took four months to complete.
Recommendations for ROW Success
To ensure smooth ROW acquisition and construction readiness, agencies should:

• Engage surveyors and legal counsel early
  
• Maintain a centralized database of parcel records and easements
  
• Use GIS mapping to visualize impacts and overlaps
  
• Conduct public outreach to inform affected property owners
  
• Document all agreements and temporary use areas
  

Contractors should:

• Review ROW plans before mobilization
  
• Confirm utility locations and protection measures
  
• Monitor erosion controls and drainage features
  
• Report encroachments or discrepancies immediately
  

Final Thoughts
Highway right-of-way issues are more than legal formalities—they shape the success or failure of infrastructure projects. From constitutional principles to field-level coordination, every step must be deliberate and well-documented. With proper planning, stakeholder engagement, and technical precision, ROW challenges can be transformed into opportunities for smoother, safer, and more efficient construction.