§323 — Title 23 Highways | U.S. Code

Summary

People whose land is being taken for a project can choose to give their land, part of it, or the money paid for it to a Federal agency, a State or State agency, or a local government after they have been told they are entitled to fair payment. A State may count the fair market value of land it lawfully gets and uses in the project as part of the State’s share of costs when federal help comes from the Highway Trust Fund (not the Mass Transit Account). The land must be used in the project, not the land described in section 138, and the Secretary must find that the donation will not affect the environmental review — including whether to build, what other options to consider, or where to place the project. The Secretary sets the value, but it cannot include any value change caused by the project, and the value date is the earlier of when the donation takes effect or when equitable title vests. Federal agencies cannot make these donations count, and the credit cannot exceed the State’s matching share. Anyone or a local government can offer money, materials, or services for a project. If the State transportation department accepts and uses them, their fair market value can be credited to the State share. Donations can be made at any time during project development. If a donation is documented before the environmental document under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) is approved, the paperwork must say that all route alternatives will be studied, the donation will not influence the environmental review or the decision to build or select a location, and any donated property not needed for the chosen alignment will be returned to the donor or their successors after public hearings and completion of the environmental review.

Title 23, §323

Highways — Source: USLM XML via OLRC

(a)Nothing in this title, or in any other provision of law, shall be construed to prevent a person whose real property is being acquired in connection with a project under this title, after he has been fully informed of his right to receive just compensation for the acquisition of his property, from making a gift or donation of such property, or any part thereof, or of any of the compensation paid therefor, to a Federal agency, a State or a State agency, or a political subdivision of a State, as said person shall determine.

(b)(1)Notwithstanding any other provision of this title, the State share of the cost of a project with respect to which Federal assistance is provided from the Highway Trust Fund (other than the Mass Transit Account) may be credited in an amount equal to the fair market value of any land that—

(A)is lawfully obtained by the State or a unit of local government in the State;

(B)is incorporated into the project;

(C)is not land described in section 138; and

(D)the Secretary determines will not influence the environmental assessment of the project, including—

(i)the decision as to the need to construct the project;

(ii)the consideration of alternatives; and

(iii)the selection of a specific location.

(2)The fair market value of land incorporated into a project and credited under paragraph (1) shall be established in the manner determined by the Secretary, except that—

(A)the fair market value shall not include any increase or decrease in the value of donated property caused by the project; and

(B)the fair market value of donated land shall be established as of the earlier of—

(i)the date on which the donation becomes effective; or

(ii)the date on which equitable title to the land vests in the State.

(3)This subsection shall not apply to donations made by an agency of the Federal Government.

(4)The credit received by a State pursuant to this subsection may not exceed the State’s matching share for the project.

(c)Nothing in this title or any other law shall prevent a person from offering to donate funds, materials, or services, or a local government from offering to donate funds, materials, or services performed by local government employees, in connection with a project eligible for assistance under this title. In the case of such a project with respect to which the Federal Government and the State share in paying the cost, any donated funds, or the fair market value of any donated materials or services, that are accepted and incorporated into the project by the State transportation department shall be credited against the State share.

(d)A gift or donation in accordance with subsection (a) may be made at any time during the development of a project. Any document executed as part of such donation prior to the approval of an environmental document prepared pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall clearly indicate that—

(1)all alternatives to a proposed alignment will be studied and considered pursuant to such Act;

(2)acquisition of property under this section shall not influence the environmental assessment of a project including the decision relative to the need to construct the project or the selection of a specific location; and

(3)any property acquired by gift or donation shall be revested in the grantor or successors in interest if such property is not required for the alignment chosen after public hearings, if required, and completion of the environmental document.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The National Environmental Policy Act of 1969, referred to in subsec. (d), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see

Short Title

note set out under section 4321 of Title 42 and Tables.

Amendments

2021—Subsec. (d). Pub. L. 117–58 inserted “(42 U.S.C. 4321 et seq.)” after “National Environmental Policy Act of 1969” in introductory provisions. 2005—Subsec. (c). Pub. L. 109–59, § 1902(1), inserted “, or a local government from offering to donate funds, materials, or services performed by local government employees,” before “in connection with a project”. Subsec. (e). Pub. L. 109–59, § 1902(2), struck out heading and text of subsec. (e). Text read as follows: “A contribution by a unit of local government of real property, funds, or material in connection with a project eligible for assistance under this title shall be credited against the State share of the project at the fair market value of the real property, funds, or material.” 1998—Pub. L. 105–178, § 1301(d)(1), substituted “Donations and credits” for “Donations” in section catchline. Subsec. (b). Pub. L. 105–178, § 1301(b)(1), substituted “Acquired” for “Donated” in heading. Subsec. (b)(1), (2). Pub. L. 105–178, § 1301(b)(2), added pars. (1) and (2) and struck out former pars. (1) and (2) which read as follows: “(1) General rule.—Notwithstanding any provision of this title, the State matching share for a project with respect to which Federal assistance is provided out of the Highway Trust Fund (other than the Mass Transit Account) may be credited by the fair market value of land incorporated into the project and lawfully donated to the State after the date of the enactment of this subsection. “(2) Establishment of fair market value.—The fair market value of the donated land shall be established as determined by the Secretary. Fair market value shall not include increases and decreases in the value of donated property caused by the project. For purposes of this subsection, the fair market value of donated land shall be established as of the date the donation becomes effective or when equitable title to the land vests in the State, whichever is earlier.” Subsec. (b)(3). Pub. L. 105–178, § 1301(b)(3), substituted “agency of the Federal Government” for “agency of a Federal, State, or local government”. Subsec. (b)(4). Pub. L. 105–178, § 1301(b)(4), struck out “to which the donation is applied” before period at end. Subsec. (c). Pub. L. 105–178, § 1212(a)(2)(A)(i), substituted “State transportation department” for “State highway department”. Subsec. (e). Pub. L. 105–178, § 1301(c), added subsec. (e). 1995—Subsecs. (c), (d). Pub. L. 104–59 added subsec. (c) and redesignated former subsec. (c) as (d). 1987—Pub. L. 100–17 designated existing provisions as subsec. (a), inserted heading, and added subsecs. (b) and (c). 1975—Pub. L. 93–643 substituted “after he has been fully informed of his right to receive just compensation for the acquisition of his property” for “after he has been tendered the full amount of the estimated just compensation as established by an approved appraisal of the fair market value of the subject real property”.

Statutory Notes and Related Subsidiaries

Effective Date

of 2021 AmendmentAmendment by Pub. L. 117–58 effective Oct. 1, 2021, see section 10003 of Pub. L. 117–58, set out as a note under section 101 of this title.

§323 Donations and Credits