The ability to assemble rights-of-way at a reasonable cost is critical to the development of a highway project.[242] Land acquisition is another impediment to private-sector participation. While private-sector acquisition methods may allow the private developer to negotiate lower acquisition costs and even obtain right-of-way donations at no cost, the concern here is the timeliness or certainty.[243] Private methods may not be enough to ensure timely acquisition of needed property.[244] The public-private partnership may have to be able to take advantage of the governmental power of eminent domain.[245]
Acquiring land for the right-of-way can be very difficult, especially in built-up areas where numerous property owners are involved.[246] A single landowner who does not want to sell can stop a project or cause its costs to escalate.[247] Governments generally have the right of eminent domain, which allows them to buy a property from an unwilling seller at a price deemed to reflect the fair market value, although exercising that right may be more costly politically than local officials are willing to bear.[248] Without the right of eminent domain, acquiring land for rights-of-way in some cases may be exceedingly difficult, unreasonable, or even impossible.[249]
The eminent domain process of States is generally more than broad enough to be available even for the use of private toll road projects. The public benefit of a toll road open to the public is clear. Private toll roads cannot be built without governmental approval or a public franchise. In some cases the toll road even reverts to the State DOT after a period of years. All these factors, either individually or collectively, are enough to support use of the eminent domain power should the State government decide to make the land available.
Another technique that has been used is an allowance. Under this technique, the private-sector partner takes responsibility for acquiring rights-of-way and doing utility adjustments up to a certain dollar amount. After that amount is reached, the public-sector partner assumes responsibility for the costs related to utilities and land acquisition. This technique would lessen the risk to the private-sector partner, particularly if a condemnation case is brought as a result of the land acquisition.
The public and private partners also could involve landowners and local government as equity holders.[250] This can be facilitated through a trade of right-of-way privileges for equity in the proposed toll road project.[251] For example, land acquisition for a proposed toll road in Maricopa County, Arizona, would have cost about $800 million-a formidable barrier.[252] It was suggested that by trading right-of-way for equity in the project, two barriers might be removed at one time: excess cost and right-of-way acquisition.[253]
Another possible solution is to utilize rights-of-way already owned by the State. For example, the enabling legislation for SR 91 authorized the California Department of Transportation (Caltrans) to lease rights-of-way, grant easements, and issue permits to enable private entities to construct transportation facilities supplementing existing State-owned facilities.[254] This type of arrangement, at least for projects expanding existing facilities, gives private entities a high degree of certainty and reduces the costs associated with land acquisition.