Glossary of Right-of-Way Terms For Site Selection
Land Acquisition and Legal Terms and Examples
Right-of-Way (ROW): A legal right of passage over land, often referring to a strip of land designated for transportation or utilities. In practice, a right-of-way is the land on which infrastructure like roads, railroads, or power lines are built, obtained either as an easement or in full ownership (fee simple) by agreement or condemnation. For example, a highway right-of-way includes the road itself and adjacent land for shoulders, sidewalks, and future expansion. Public agencies (like state DOTs) acquire ROW to build roads or grant utility companies access, and the land is thereafter treated as public property for those uses.
Easement: A non-possessory interest in real property that grants the holder a right to use or control someone else’s land for a specific purpose. The landowner retains title, but the easement holder (such as a utility or neighbor) has rights to use a portion of the land. For example, a utility easement might allow a power company to run lines across private property, or a shared driveway easement might grant two parcels access over one driveway. Easements can be temporary or permanent and are typically recorded in property deeds. They are common in site development – a data center site may have multiple easements for power lines, water pipes, or ingress/egress.
Public Utility Easement (PUE): A type of easement granted to utility providers (often publicly regulated utilities) to install and maintain infrastructure on private land. A PUE is usually delineated on a subdivision plat or property survey, reserving a strip of land (for example, along front or rear lot lines) for utilities like electricity, water, sewer, or telecommunications. The utility company doesn’t own this land but has the right to access it for repairs or upgrades. For instance, as part of a data center land purchase, the developer might find a 10-foot PUE along the property boundary where fiber-optic cables or power lines can be laid. Property owners cannot build permanent structures on a PUE that would interfere with utility access.
Ingress/Egress Easement (Access Easement): An easement that grants the right to enter and exit (ingress and egress) a property through another property. This is typically used to guarantee access for landlocked parcels or shared driveways. For example, if a data center parcel does not front a public road, the developer might negotiate an ingress/egress easement over a neighbor’s land to connect to the nearest roadway. This easement ensures the data center has a legal driveway or private road for vehicles and utilities, even though the underlying land belongs to someone else. Access easements are often recorded on deeds and are critical for site selection when direct public road access is unavailable.
Fee Simple: The highest form of property ownership, in which the owner holds full title to the land (also called absolute ownership). Acquiring land in fee simple means obtaining complete ownership as opposed to a partial interest like an easement. For right-of-way, a government or developer may prefer to buy land outright in fee simple for a road or facility, rather than just obtaining an easement, to have total control of its use. For example, a city might acquire a parcel in fee simple to build a new substation for a data center, ensuring exclusive and permanent rights. In contrast, some road projects only acquire an easement over private land while the underlying ownership remains with the original owner.
Eminent Domain: The legal power of government (or its agents) to take private property for public use, with payment of just compensation to the owner. This power is granted by the Fifth Amendment of the U.S. Constitution and implemented through state laws. If a needed right-of-way cannot be obtained through negotiation, a government agency can invoke eminent domain to condemn the property. For example, a state DOT might use eminent domain to acquire a strip of land from a reluctant seller in order to widen a highway serving a new data center. The owner must be paid fair market value for the taken property, and the use must be for a public purpose (such as roads, utilities, or other infrastructure).
Condemnation: The process by which eminent domain is exercised to take property for public use. In a condemnation action, the government files a legal case to acquire title to the property after attempts at voluntary purchase have failed. The court determines the right to take and the amount of just compensation if not agreed upon. Condemnation can apply to an entire parcel or just a portion (or interest) of it. For example, a county might condemn a 20-foot strip along several properties to install a new sewer line for a data center park. During condemnation, the owner is notified and can challenge the necessity or the offered compensation, but outright challenge to the public use is limited. Ultimately, title is transferred to the agency, and the owner is paid the court-awarded value.
Uniform Act (Uniform Relocation Assistance and Real Property Acquisition Policies Act): A federal law (Public Law 91-646, as amended) that governs how public agencies must acquire real property and assist displaced persons for projects involving federal funds. The Uniform Act requires agencies to follow certain procedures: provide written offers based on fair market value, pay just compensation, and offer relocation assistance to affected residents or businesses. For instance, if a data center project involves a federally funded road improvement requiring ROW acquisition, the acquiring agency (perhaps the state DOT) must comply with the Uniform Act’s rules for appraisals, negotiations, and relocation benefits. The law ensures property owners are treated fairly and consistently – they receive fair compensation and advisory services if they must move. The Federal Highway Administration oversees compliance with the Uniform Act on highway projects.
Dedication (Right-of-Way Dedication): The gifting or setting aside of private land for public use, often as a condition of development approval. In land development, a property owner may be required to dedicate a portion of land for streets, sidewalks, or utilities. This typically occurs through a subdivision plat or deed when, say, a new road or road widening is needed. For example, a data center developer might dedicate a 50-foot strip along the property’s frontage to the city for a future roadway expansion or utility corridor. Once dedicated and accepted by the public authority (city/county), that land becomes public right-of-way. Dedications are common in zoning and permitting; local planning agencies (and departments of transportation) often mandate ROW dedications to mitigate a project’s impact on traffic or to implement transportation plans.
Encroachment: Any private use or intrusion into a public right-of-way without permission. Encroachments can be structures, objects, or activities that occupy or overhang the ROW. For example, a fence, sign, or landscaping from a data center property that extends into the adjacent road shoulder or sidewalk is an encroachment. Such unauthorized encroachments are usually prohibited because they can obstruct utilities or create safety hazards. If a property owner wants to place something in the ROW (or if a temporary intrusion is needed during construction), they must seek permission in the form of an encroachment permit. Public agencies will require removal of unpermitted encroachments or issue fines.
Encroachment Permit: An official approval granted by the government agency that controls a right-of-way, allowing a private individual or company to perform work within or place a structure in the ROW. It is essentially a license agreement specifying what encroachment is allowed and under what conditions. For instance, if a data center project needs to run a stormwater discharge pipe under a public road or place temporary construction barricades on a sidewalk, the developer must obtain an encroachment permit from the city or state DOT. This permit ensures the encroachment is done safely and restored properly. Encroachment permits cover a variety of activities “within, under, or over” public right-of-way, such as excavations, overhead utility lines, or subsurface vaults. They are typically revocable and often require insurance, fees, and inspections.
Utility and Infrastructure Terms
Utility Corridor: A designated strip of land used for the placement of utility infrastructure such as power lines, pipelines, water mains, or communication cables. A utility corridor may be within a public right-of-way (e.g., alongside a road) or cross private lands via easements obtained by the utility. For example, a data center campus might secure a utility corridor for dual electric feed lines and fiber-optic cables connecting the facility to the grid and internet backbone. In practice, utility corridors are planned to group utilities in a common area, minimizing interference with other land uses. They often involve coordination between multiple utilities and may be regulated by local planning or utility agreements to ensure proper separation and access for maintenance.
Utility Relocation: The process of moving existing utility facilities (power poles, underground cables, water/sewer lines, etc.) to a new location to avoid conflicts with construction or accommodate new infrastructure. When a road is widened or a new driveway is built for a site, utilities in the path often must be relocated out of the way. For example, before constructing an access road to a data center, the developer might work with the phone company and power company to relocate a row of poles that sit in the planned pavement area. Utility relocation typically involves planning and cost responsibility negotiations – sometimes the project owner reimburses the utility, other times the utility must cover it (depending on prior rights and agreements). Early utility relocation planning is part of right-of-way clearance for transportation projects, often coordinated by the DOT’s utility division to prevent delays during construction.
Utility Coordination: A collaborative process in project development where the needs and schedules of various utility providers are managed in relation to a construction project. Utility coordination ensures that power, water, gas, telecommunications, and other services are identified, conflicts are resolved (e.g., relocations or protections), and any agreements (utility relocation agreements or use agreements) are in place before construction. For example, in developing a data center site, utility coordination meetings might be held with the electric utility (for new substation connections), fiber providers (for conduit routing), and municipal water/sewer departments. The goal is to prevent utility conflicts and outages by aligning the project’s timeline with utility adjustments. Many state DOTs employ Utility Coordination Agreements to formalize each utility’s responsibilities. Modern practice, often part of Subsurface Utility Engineering, involves mapping utilities to “quality levels” and engaging utility companies early.
Subsurface Utility Engineering (SUE): An engineering practice that combines surveying, geophysical techniques, and data management to locate and map underground utilities with a defined level of accuracy. SUE is used to reduce the risk of utility conflicts during design and construction. It classifies utility data into Quality Levels A through D – from basic record info (QL-D) to precise horizontal and vertical location via vacuum excavation (QL-A). In infrastructure planning for a data center, SUE might be employed to identify existing water, sewer, fiber, and electric lines on the site and along access roads. For example, before trenching for new fiber, a SUE survey at Quality Level B could be done to designate the path of any unknown cables. By providing reliable utility maps, SUE helps prevent unexpected utility hits and allows designers to plan around existing lines or plan relocations proactively.
Railroad Right-of-Way: A strip of land on which railroad tracks and related facilities are built, typically owned or controlled by a railroad company. Railroad rights-of-way include not just the tracks, but also the land needed for signals, communication lines, drainage, maintenance access, and a safety buffer on each side. If a planned infrastructure project (like a road or utility line for a data center) crosses a railroad ROW, special coordination is required. The railroad’s permission, often through a railroad crossing agreement or right-of-entry permit, must be obtained to work within their ROW. For example, running a fiber optic cable under a railway to reach a data center would involve negotiating with the railroad for a license agreement and scheduling supervised installation (with railroad flaggers present). Railroads fiercely protect their ROW for safety and operational reasons – unauthorized entry is considered trespassing – so early engagement is critical if a data center project impacts a rail line.
811 “Call Before You Dig”: A nationwide service (reachable by dialing 811) that developers and contractors must use before any excavation to have underground utilities marked out. While not an ownership term, it’s a critical utility coordination step required by law in the U.S. When planning site work or right-of-way excavation (trenching for cables, digging for foundations) at a data center, the project team will contact 811, which notifies local utility operators to mark the locations of underground lines (electric, gas, water, telecom) on the ground. This prevents damage to existing utilities and ensures safety. For example, prior to installing a new fiber conduit along a road ROW to a data center, the contractor will request utility locates via 811 and wait for all utilities to mark their lines with paint and flags.
Franchise Agreement (Utility Franchise): A legal agreement between a utility company and a government (city or county) that grants the utility the right to use public rights-of-way to install and operate their facilities, often in exchange for a fee or compliance with certain conditions. For instance, a city may have a franchise agreement with the electric utility that allows the utility to run lines under streets or along ROW and, in return, the utility pays the city a franchise fee (or provides services like street lighting). While not a physical element of ROW, franchise agreements impact who can use the ROW and under what terms. In the context of a data center, the presence of a franchise means the developer typically doesn’t need a separate land agreement to get utility service – the utility already has rights to lay lines in the public ROW. However, the data center may still need permits for specific work. Franchise agreements ensure coordination: utilities must repair roads they excavate and relocate facilities if required by public projects, often as stipulated in the franchise.
Zoning and Land Use Terms
Zoning: A system of local land-use regulations that divide a municipality into zones (such as residential, commercial, industrial) and govern what types of development can occur in each zone. Zoning ordinances dictate permitted uses, building heights, lot sizes, setbacks, and other standards for properties. For example, a data center might be allowed in an area zoned “light industrial” but prohibited in a “residential” zone. When selecting a site, developers must check the zoning to ensure a data center use is permitted, or seek a change/variance if not. Zoning is enforced by city or county planning departments through the project approval process. It is meant to ensure compatible land uses and orderly development – e.g., keeping heavy industrial facilities away from homes. Modern zoning codes may explicitly define “data center” as a use category, or else data centers fall under general categories like technology/industrial uses.
Zoning Variance: A variance is an official waiver of strict zoning rules for a specific property, granted to relieve a hardship caused by the property’s unique conditions. It allows the property owner to deviate from certain zoning requirements while otherwise keeping the zoning classification. For instance, if a data center design slightly exceeds the zone’s height limit or cannot meet a setback due to an odd lot shape, the developer might apply for a variance. To be approved, the owner typically must show that literal enforcement of the code causes undue hardship (not self-created) and that the variance won’t harm the public interest. Variances are decided by a local Board of Zoning Appeals (or Adjustment) after a public hearing. They are intended for unusual circumstances – e.g., a narrow parcel might get a variance to have smaller side setbacks than normally required. A variance does not change the underlying zoning use; it only adjusts specific requirements like yard size, lot coverage, or parking count.
Conditional Use Permit (CUP) / Special Use Permit: A permit allowing a property to be used for a purpose that is generally not permitted in the zoning district by right, but may be allowed if certain conditions are met to mitigate impacts. Local zoning ordinances list which uses require a conditional or special use permit. For example, a data center might be a conditional use in a light industrial zone – meaning it’s not outright allowed unless reviewed and approved with conditions (such as enhanced landscaping or noise mitigation). A CUP process typically involves a public hearing before the planning commission or governing body, which will evaluate whether the proposed use at that location is compatible with the surrounding area. As an illustration, a planning board could approve a CUP for a data center in a commercial area with the condition that back-up generator noise is controlled and traffic is limited off-peak. The CUP is specific to the project and can be revoked if conditions are violated. In summary, it’s a tool to give flexibility in land use while protecting community interests.
Setback: The minimum distance a building or structure must be set back from property lines, streets, or other designated boundaries, as required by zoning or building codes. Setbacks create a buffer space for light, air, privacy, and safety. For instance, a front yard setback might require a data center building to sit at least 50 feet from the public road right-of-way; side and rear setbacks separate it from neighbors’ property. Setback requirements are typically listed in the zoning regulations for each zone (e.g., an industrial zone might have a 20′ side setback). They also ensure room for utilities and future road widening if needed. In development review, site plans must show all structures outside the setback lines. If a project encroaches into a setback, it may need a variance. For example, a security fence or small guardhouse might be allowed in a front setback by permit, but the main data hall building must respect the setback to maintain visual corridors and utility access in the ROW.
Entitlements: A broad term referring to the legal approvals and rights a developer must obtain to use and develop a property for a desired project. Entitlements encompass zoning approvals, permits, and other discretionary approvals granted by government agencies that “entitle” the developer to proceed. Examples of entitlements include zoning amendments or confirmations, conditional use permits, site plan approvals, variances, subdivision plats, and development agreements. Before construction of a data center can begin, the developer must secure all entitlements – for instance, ensuring the zoning permits a data center, obtaining any necessary CUP for the use or height, and getting site plan approval from the city. Entitlements are essentially the permission to develop; they often involve public hearings and can be time-consuming. Once granted, they run with the land (often transferring to future owners). In summary, entitlement is the process of obtaining all permissions required to make a raw site “shovel-ready” for construction.
Building Permit: An official document or approval issued by the local building department that allows construction or alteration of a structure to commence, confirming that the plans comply with building codes and other regulations. A building permit is typically required for new construction, additions, significant renovations, electrical/HVAC work, etc. For a data center project, after securing land use entitlements, the developer must submit detailed construction plans (architectural, structural, electrical, fire protection) to the city’s building officials. Those plans are reviewed for code compliance (e.g., fire safety, structural integrity, accessibility). Once approved, the city issues a building permit, and work can start under that permit. During construction, inspectors will verify the work meets code. For example, separate permits (or an umbrella permit) might be pulled for foundation work, electrical generators, and interior build-out of server halls. Only after final inspections will a Certificate of Occupancy be granted, allowing the data center to operate. Building permits ensure that structures are safe and adhere to standards, protecting both the occupants and the public.
Government and Regulatory Terms
Federal Highway Administration (FHWA): An agency of the U.S. Department of Transportation that oversees the Federal-Aid Highway Program, supporting state and local governments in the design, construction, and maintenance of the nation’s highways. FHWA provides funding, sets standards, and enforces regulations for road projects that use federal funds. In right-of-way matters, FHWA issues rules (in the Code of Federal Regulations) on how ROW is acquired and managed for highway projects, and it ensures compliance with laws like the Uniform Act. For example, if a city is using federal funds to improve a roadway serving a new data center, the project must follow FHWA guidelines for environmental review (NEPA process) and ROW acquisition. FHWA division offices in each state work closely with the state DOTs. In summary, FHWA is the key federal stakeholder for transportation infrastructure, focusing on highways and ensuring projects meet national safety and efficiency goals.
State Department of Transportation (State DOT): The state-level government agency responsible for transportation planning, construction, and maintenance. Each state’s DOT (e.g., TxDOT in Texas, VDOT in Virginia) manages the state highway system and often other modes like aviation or public transit. In the context of ROW, State DOTs have dedicated Right-of-Way divisions that acquire land for highway projects, following state law and, when federal funding is involved, FHWA regulations. A State DOT coordinates with local governments and utilities on projects. For example, if a data center requires a new interchange on a state highway, the state DOT will handle the design and ROW acquisition (possibly using eminent domain if needed) and issue permits for any connections to the highway. State DOTs also issue driveway/access permits for connections into their roads and utility permits for any utility work in state ROW. They are key public stakeholders to engage when a project abuts or affects state roadways.
Federal Energy Regulatory Commission (FERC): An independent federal agency that regulates the interstate transmission of electricity, natural gas, and oil, and oversees certain energy infrastructure projects. FERC’s authority includes approving interstate natural gas pipelines and electric transmission lines that cross state lines or use federal corridors. In site selection for a data center, FERC can become relevant if, for instance, a new high-voltage transmission line or a gas pipeline is required to supply the facility and that line crosses state boundaries or taps into the interstate grid. FERC would handle the certificate and routing approval for such a line (through processes established by the Natural Gas Act or Federal Power Act). FERC does not directly acquire ROW – typically the utility does that – but FERC’s certificate can confer eminent domain authority for gas pipelines. Additionally, FERC designates Electric Transmission Corridors in cases of national interest. In summary, FERC is concerned with ensuring energy projects are in the public convenience and necessity and that they meet environmental and reliability standards on a broad (multi-state) scale.
Public Utility Commission (PUC) / Public Service Commission (PSC): A state regulatory body that oversees public utilities (electric, gas, water, telecommunications) and their services, rates, and infrastructure within the state. PUCs regulate how utilities operate and often must approve major new utility facilities. For example, before an electric utility builds a new power plant or a high-voltage transmission line (even within one state) to serve growing demand from data centers, it usually needs approval from the PUC in the form of a Certificate of Public Convenience and Necessity. The PUC will consider if the project is needed, its impact on rates, and sometimes its environmental or land-use implications. PUCs also mediate utility right-of-way issues such as route selection for lines (balancing utility proposals with public input). For site developers, the PUC might not be directly encountered, but it influences the timeline and conditions under which utilities can expand infrastructure to the site. In some states, PUCs also handle complaints about utility easements and can arbitrate in condemnation if a utility uses eminent domain. Overall, the PUC ensures utilities act in the public interest when utilizing rights-of-way and providing services.
Certificate of Public Convenience and Necessity (CPCN): An authorization issued by a PUC or similar regulatory authority that a proposed utility project (power line, pipeline, power plant, etc.) is necessary for the public and can proceed. Essentially, it’s a permit for the utility to undertake a major infrastructure project, often required by state law. Obtaining a CPCN typically involves demonstrating the need for the project, evaluating alternatives, and showing that the public benefits outweigh any impacts. For example, if a data center hub in a region requires a new 230 kV transmission line for adequate power, the utility must file a case with the state PUC to get a CPCN for that line. The PUC would review evidence of growing electricity demand, consider input from landowners along the proposed route, and then approve (often with conditions) or deny the certificate. With a CPCN in hand, a utility may then exercise eminent domain to acquire the necessary right-of-way for the line, if voluntary agreements with landowners cannot be reached. At the federal level, FERC similarly grants certificates for interstate gas pipelines. In summary, a CPCN is a critical legal step for utility projects that secures the regulatory blessing to use land for new utility corridors in service of public need.
National Environmental Policy Act (NEPA): A cornerstone federal environmental law (enacted 1969) that requires federal agencies to assess the environmental impacts of their proposed actions and involve the public in the decision-making process. NEPA establishes a framework for environmental review, which can involve three levels of analysis: Categorical Exclusion (for actions deemed to have minimal impact), Environmental Assessment (EA) for intermediate analysis, or a full Environmental Impact Statement (EIS) for major actions with significant impacts. In the context of site selection, NEPA is triggered if a project requires a federal approval or federal funding – for example, if a data center development needs a U.S. Army Corps of Engineers permit for wetlands (Clean Water Act Section 404) or if a road expansion to the site has federal highway funds. Under NEPA, the responsible federal agency must study effects on environment, such as traffic, air quality, noise, water resources, endangered species, etc., and consider alternatives and mitigation. The process ensures informed decisions: a smaller project might get a Finding of No Significant Impact (FONSI) after an EA, whereas a large one could require years to complete an EIS with public hearings and inter-agency consultations. NEPA doesn’t directly mandate outcomes; it mandates the process of environmental due diligence and disclosure before project decisions are made.
Environmental Impact Statement (EIS): A detailed document required by NEPA for any major federal action significantly affecting the quality of the human environment. An EIS is the most comprehensive level of environmental review and includes analysis of a project’s impacts, alternatives to the project, and plans to mitigate harm. It typically involves: a Notice of Intent, scoping to identify key issues, a Draft EIS (circulated for public comment), and a Final EIS, followed by a Record of Decision. For example, if a federal agency were funding a large highway to a new data center campus, and that highway could affect wetlands or communities, an EIS would likely be prepared examining routes, construction impacts, effects on wildlife, cultural sites, etc. The EIS process gives stakeholders (public, agencies, tribes) a chance to weigh in. Only after the EIS and a favorable Record of Decision can the project proceed to implementation. An EIS is a public document – often hundreds or thousands of pages – and is meant to ensure transparency and consideration of environmental values. (In contrast, a less impactful project might only need an EA, and very small or routine projects might be categorically excluded.) In sum, an EIS is the rigorous environmental analysis that accompanies significant projects, including infrastructure that data center developments may depend on.
Survey and Mapping Terms
ALTA Survey (ALTA/NSPS Land Title Survey): A comprehensive boundary and property survey adhering to standardized requirements set by the American Land Title Association (ALTA) and National Society of Professional Surveyors (NSPS). An ALTA survey maps property boundaries, identifies improvements, and notes any easements, encroachments, or other significant legal features affecting the land. It is often required by lenders and title companies in commercial real estate transactions (such as buying land for a data center) to ensure there are no surprises about the extent of the property and any rights others have in it. For example, an ALTA survey for a data center site will show the metes-and-bounds of the parcel, the location of structures, any utility easements crossing the land, access rights, and any encroachments (like a neighbor’s fence or an overhanging power line). The survey gives a detailed, certified picture of the property’s status, which is critical during due diligence. ALTA surveys typically include a legal description and meet high accuracy standards, providing confidence that the title description matches the on-the-ground reality.
Metes and Bounds: A method of describing land by its boundaries using bearings (directions) and distances, often with references to physical markers or monuments. A metes-and-bounds description starts at a point of beginning and then describes the perimeter of the property by “metes” (measurements such as feet or chains in certain directions) and “bounds” (boundary lines often marked by landmarks like a tree, a stone, or a stake) until returning to the starting point. This traditional system is used especially in the Eastern U.S. and irregularly shaped tracts, as opposed to the Public Land Survey System of townships and ranges. For example, a metes-and-bounds description for a data center parcel might read: “Beginning at an iron pin on the northerly right-of-way of County Road 10, thence N 15°20’ E, 500 feet to a large oak tree, thence S 75° E, 300 feet to the creek centerline… thence following the creek… to the point of beginning.” This precisely defines the site’s boundary. Surveyors will place or find monuments at the property corners as part of this process. Understanding metes-and-bounds is important when examining deeds or easements in older or non-platted areas during site selection, to know exactly what land is involved.
Plat (Subdivision Plat): A scaled map of a tract of land that shows how the land is divided into lots, blocks, streets, and easements. When property is subdivided (for example, when creating an industrial park or data center campus lots), a plat is prepared by a surveyor and approved by the local jurisdiction. The plat typically dedicates any new public rights-of-way (roads) or easements and assigns lot numbers and dimensions. Once approved, it’s recorded in county records and becomes the official legal description of those lots (often replacing metes-and-bounds descriptions with lot and block designations). A plat will show the geometry of each parcel, the location of utility easements (like along lot lines), and any land set aside for parks or drainage. For instance, a developer subdividing 100 acres for a data center might create several large lots and extend a street down the middle – the plat would show the new street ROW dedicated to the city and perhaps a public utility easement along each lot front. Plats are public records and are referenced in deeds (e.g., “Lot 2, Block A, Data Center Subdivision, as per plat recorded in Volume X, Page Y”). Reviewing the plat is crucial for site selection as it reveals encumbrances and access. In sum, a plat is the formal map of land division and public dedications that guides development of the subdivided land.