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  • Disclaimer: Any opinions, findings, and recommendations expressed in the group area discussions are solely those of the authors and do not necessarily reflect the views of the United States Government, the Department of Transportation, or the Federal Highway Administration.
Edited: 4/24/2012 8:37 AM
Mark Johnson

Income property on a 4(f) site

We are looking at 4(f) considerations regarding a r/w take from a property that is on the site of large, City-owned urban recreational facility. The purpose of take is to add bike lanes to the City's street r/w, and there is some federal funding. 
The specific property that would be affected is leased out to a separate non-profit entity for a television studio, although the portion of the property that would be purchased is simply a landscaped berm and performs no recreational or commercial function. 

The question is whether this is a 4(f) issue at all, or if we have to evaluate and determine the severity of the impact.   (It appears that the transfer of the property would not affect either the income to the recreational center, or any of the recreational activities there.) 

Any similar projects out there we could look at?
2011-06-27 11:22:09
Posted: 4/24/2012 8:37 AM
R. A. Jackson
I only raise this issue because I did not notice it in any of the other replies.

Since the narrative provided seems to indicate that the land being acquired is part of the land which is being leased, the applicabilty or non-applicability may depend upon the terms of that lease.

The lease should identify the areas of this parcel are leased out, the function of those lands and whether or not there is public access to the lands, as well as a number of other issues which may influence the applicability determination.

I would never approach an applicability determination in the circumstance you outlined above without first carefully reviewing the terms of the lease and any associated provisions in the land management plan.

10/28/2011 9:11 AM
Posted: 4/24/2012 8:37 AM
But your point is a good one.  I had a case where the city park land being impacted was leased as a parking lot to a business office.  There wasn't a recreational feature anywhere to be seen.
10/26/2011 12:18 PM
Posted: 4/24/2012 8:37 AM
State DOT
Oh, sorry I didn't read carefully.  It's part of a large recreational facility so it's likely part of the 4(f) resource as the whole facility should be important unless it's the multi-use case that you already talked about.  
10/25/2011 2:59 PM
Posted: 4/24/2012 8:37 AM
State DOT
Could it be the case that this facility can be determined not important because of the fact that it is leased out for a non-recreational purpose? (if it's important it woulden't be leased out right?) so this is not a 4(f) resource?
10/25/2011 2:28 PM
Posted: 4/24/2012 8:37 AM
Mark S Johnson
Thanks much for all the replies.  The multiple-use definition seems like the most applicable and viable approach, but I am looking at the bikeway infomation as well.  Also verifying about the noise abatment issue- the studio has not identified that as a concern, but I think the berm may have been there before the building was built,and that was a couple decades back.  It may be impossible to tell what the designers were intending. 
7/14/2011 12:03 PM
Posted: 4/24/2012 8:37 AM
FYI If you are removing a "landscaped berm" that lies between sound studio and roadway it could possibly be an abatement feature constructed to reduce noise to the studio...not 4(f) but other issues are still important.
6/29/2011 2:25 PM
Posted: 4/24/2012 8:37 AM
F. Yates Oppermann
Neg Dec for Bike/Ped might also work.  I haven't used them for bike lanes before though, only for bike paths.  Anyone else done this successfully before?
6/28/2011 4:57 PM
Posted: 4/24/2012 8:37 AM
If the project is solely a bicycle project independent of any other construction elements, this may apply:
6/28/2011 2:03 PM
Posted: 4/24/2012 8:37 AM
F. Yates Oppermann
Talk with your Division.  The facts that you have here are really not enough for a good yes/no answer.  The recreational facility might be considered a mix-use property if it also serves non-receational purposes. (remember, it's not the name, but the function that is important).  If that is so, then there could be a good argument that 4(f) is not applicable in the area around the television studio.  If a multi-use designation is not appropriate, then you've got a couple of options: de minimis is one, but also both the minor use and net benefit programmatics might be available as processes.  While these do require some degree of alternatives analysis, they do avoid the public participation requirements and might actually be faster and less work. 

In all cases where 4(f) is applicable you'll have to do some level of evaluation to determine impacts to the property and its functions as a whole.  You might actually find an overall benefit by providing safer access to the facilities for non-motorized visitors.

I wish I could give you a good example but a determination as to whether or not it's a multi-use property needs to be a first step. If it is multi-use, then look for examples of areas like public schools.  If not, parks where the impacts are to areas like parking lots or maintenance areas is probably your best bet.  If you get a little more clarity from your Division, I may be able to get you some examples from here.
6/28/2011 1:18 PM
Posted: 4/24/2012 8:37 AM
If there is a take of property from a publically owned recreation site, even if that portion of the property does not provide recreation it is still a use under 4(f), unless it is a multiple use site (doesn't sound like this situation would qualify).  Also, landscaping can provide benefit to the recreationists even if they don't recreate in that exact spot - visual screening, or noise abatement (since you said it is a berm, that is possible).
6/27/2011 5:32 PM
Posted: 4/24/2012 8:37 AM
Michael Paiewonsky
I believe that this r/w taking is a Section 4(f) issue. From what I understand from your post, the property is publicly-owned facility whose major purpose is recreation and DOT funds/approval are needed for the project.  I'm assuming there are no Section 106 issues here.  I would prepare a De Minimis Section
4(f) Evaluation.  Make sure public is informed of this during any public hearing. 
6/27/2011 3:34 PM