ORS Chapter 35 - Oregon Statutes

Chapter 35 — EminentDomain; Public Acquisition of Property

 

2009 EDITION

 

EMINENTDOMAIN; PUBLIC ACQUISITION OF PROPERTY

 

SPECIALACTIONS AND PROCEEDINGS

 

LIMITATIONOF CONDEMNATION POWER

 

35.015       Prohibitionon condemnation of certain properties with intent to convey property to privateparty; exceptions

 

35.018       Severability

 

PROCEDURE

 

35.205       Shorttitle

 

35.215       Definitionsfor chapter

 

35.220       Precondemnationentry on real property

 

35.235       Agreementfor compensation; status of resolution or ordinance of public condemner; statusof action of private condemner; agreement effort not prerequisite

 

35.245       Commencementof action; jurisdiction; parties

 

35.255       Contentof complaint

 

35.265       Advancedeposit by public condemner requiring immediate possession; effect on interestotherwise allowable

 

35.275       Advanceoccupancy by private condemner; hearing; deposit or bond; effect of size ofbond or deposit on amount of just compensation

 

35.285       Distributionof deposits; effect of withdrawal on appeal

 

35.295       Defendant’sanswer

 

35.300       Offerof compromise

 

35.305       Conductof trial; defendant’s option; jury argument; neither side has burden of proofof just compensation

 

35.315       Viewof property by order of court

 

35.325       Effectof judgment; effect of payment under judgment

 

35.335       Effectof condemner’s abandonment of action

 

35.346       Offerto purchase required before filing action for condemnation; appraisal;arbitration; when costs and disbursements allowed

 

35.348       Immediatepossession of property

 

35.350       Immediatepossession of property by public body

 

35.352       Noticeof immediate possession of property by public condemner; objection

 

35.355       Appeal

 

35.365       Effectof withdrawal of award; disposition of award

 

35.375       Chapteras exclusive condemnation proceeding; exception

 

35.385       Publicpurpose use required of condemner; right of repurchase; specification ofduration of public purpose use; effect

 

35.390       Effectof failure of condemner to use property as required; price of repurchase; formof offer of repurchase

 

35.395       Changein period of use; notice; effect of failure to agree on change; review by court

 

35.400       Designationof person to exercise right of repurchase; effect of failure to designate;offer to repurchase; acceptance; notice; determination of price

 

35.405       Designationof person to exercise right of repurchase by multiple owners

 

35.410       Rightto contest change in public purpose use; notice of proposed change

 

35.415       Applicationof ORS 35.385 to 35.415

 

RELOCATIONOF DISPLACED PERSONS

 

35.500       Definitionsfor ORS 35.500 to 35.530

 

35.505       Relocationwithin neighborhood; notice prior to move; costs and allowances

 

35.510       Dutiesof public entities acquiring real property

 

35.515       Requireddisclosures for business and farm operations

 

35.520       Decisionon benefits; hearing; review

 

35.525       Construction

 

35.530       Federallaw controls

 

CONDEMNATIONBY STATE

 

35.550       Definitionsfor ORS 35.550 to 35.575

 

35.555       Determinationof necessity; suit by Attorney General

 

35.560       Actionby district attorney

 

35.565       Procedurefor condemnation

 

35.570       Paymentof expenses of proceeding, value and damages

 

35.575       Precondemnationcompensation not required

 

CONDEMNATIONOF PROPERTY ADJOINING PROPOSED ROADWAYS

 

35.600       Application

 

35.605       Authorizationto acquire adjoining property for roadways

 

35.610       Ordinanceor resolution required

 

35.615       Restrictionson future use of property acquired adjacent to roadway

 

35.620       Acquisitionof land adjoining road boundaries declared necessary

 

35.625       Procedureto ascertain compensation and damages

 

      35.010 [Repealed by 1971c.741 §38]

 

LIMITATIONOF CONDEMNATION POWER

 

      35.015Prohibition on condemnation of certain properties with intent to conveyproperty to private party; exceptions. (1) Except as otherwise provided inthis section, a public body as defined in ORS 174.109 may not condemn privatereal property used as a residence, business establishment, farm or forestoperation if at the time of the condemnation the public body intends to conveyfee title to all or a portion of the real property, or a lesser interest thanfee title, to another private party.

      (2)Subsection (1) of this section does not apply to condemnation of:

      (a)Improved or unimproved real property that constitutes a danger to the health orsafety of the community by reason of contamination, dilapidated structures,improper or insufficient water or sanitary facilities, or any combination ofthese factors;

      (b)Any timber, crops, topsoil, gravel or fixtures to be removed from the realproperty being condemned; or

      (c)Real property condemned for maintenance, improvement, or construction oftransportation facilities, transportation systems, utility facilities orutility transmission systems.

      (3)Subsection (1) of this section does not prohibit a public body from leasing aportion of a public facility to a privately owned business for the provision ofretail services designed primarily to serve the patrons of the public facility.

      (4)A public body as defined in ORS 174.109 may at any time publish notice that thepublic body intends to consider condemnation of a lot or parcel. If the publicbody publishes notice under this subsection, subsection (1) of this sectiondoes not apply for such time necessary to provide the public body reasonableopportunity to condemn the property, if the lot or parcel is conveyed by theowner of the lot or parcel to another private party after the notice ispublished, but prior to the time the property is condemned.

      (5)Subsection (1) of this section does not affect the ability of a public body asdefined in ORS 174.109 to make a conveyance of a nonpossessory interest incondemned property for the purpose of financing acquisition of the property.

      (6)A court shall independently determine whether a taking of property complieswith the requirements of this section, without deference to any determinationmade by the public body. If a court determines that a taking of property doesnot comply with the requirements of this section, the owner of the lot orparcel that is the subject of the condemnation proceeding shall be entitled toreasonable attorney fees, expenses, costs and other disbursements reasonablyincurred to defend against the proposed condemnation. [2007 c.1 §2; 2009 c.11 §6]

 

      35.018Severability.If any portion or portions of chapter 1, Oregon Laws 2007, are declared invalidby a court of competent jurisdiction, the remaining portions of chapter 1,Oregon Laws 2007, shall remain in full force and effect. [2007 c.1 §3]

 

      Note: 35.018 wasadopted by the people by initiative petition but was not added to or made apart of ORS chapter 35 or any series therein. See Preface to Oregon RevisedStatutes for further explanation.

 

      Note: LegislativeCounsel has substituted “chapter 1, Oregon Laws 2007,” for the words “this 2006Act” in section 3, chapter 1, Oregon Laws 2007, compiled as 35.018. SpecificORS references have not been substituted, pursuant to 173.160. The sections forwhich substitution otherwise would be made may be determined by referring tothe 2007 Comparative Section Table located in Volume 20 of ORS.

 

      35.020 [Repealed by1971 c.741 §38]

 

      35.030 [Repealed by1971 c.741 §38]

 

      35.040 [Amended by1967 c.479 §1; repealed by 1971 c.741 §38]

 

      35.050 [Repealed by1971 c.741 §38]

 

      35.060 [Repealed by1971 c.741 §38]

 

      35.070 [Amended by1967 c.479 §2; repealed by 1971 c.741 §38]

 

      35.080 [Repealed by1971 c.741 §38]

 

      35.085 [1967 c.479 §§4,5;repealed by 1971 c.741 §38]

 

      35.090 [Repealed by1971 c.741 §38]

 

      35.100 [Repealed by1971 c.741 §38]

 

      35.105 [1967 c.479 §6;repealed by 1971 c.741 §38]

 

      35.110 [Repealed by 1971c.741 §38]

 

      35.120 [Repealed by1971 c.741 §38]

 

      35.130 [Repealed by1971 c.741 §38]

 

      35.140 [Repealed by1971 c.741 §38]

 

PROCEDURE

 

      35.205Short title.This chapter may be cited as the General Condemnation Procedure Act. [1971c.741 §2]

 

      35.215Definitions for chapter. As used in this chapter, unless the contextotherwise requires:

      (1)“Condemner” means the state, any city, county, school district, municipal orpublic corporation, political subdivision or any instrumentality or any agencythereof or a private corporation that has the power to exercise the right ofeminent domain.

      (2)“Owner” or “owner of the property” means the owner of property.

      (3)“Person” means person as defined by ORS 174.100 and also includes the state,any city, county, school district, municipal or public corporation, politicalsubdivision or any instrumentality or any agency thereof.

      (4)“Private condemner” means a private corporation that has the power to exercisethe right of eminent domain.

      (5)“Property” means real or personal property or any interest therein of any kindor nature that is subject to condemnation.

      (6)“Public condemner” means condemner other than private condemner. [1971 c.741 §4;1983 c.327 §10; 2003 c.14 §18]

 

      35.220Precondemnation entry on real property. (1) Subject to the requirements of thissection, a condemner may enter upon, examine, survey, conduct tests upon andtake samples from any real property that is subject to condemnation by thecondemner. A condemner may not enter upon any land under the provisions of thissection without first attempting to provide actual notice to the owner oroccupant of the property. If the condemner has not provided actual notice,written notice must be posted in a conspicuous place where the notice is most likelyto be seen. The posted notice must give the condemner’s name, address andtelephone number and the purpose of the entry. A condemner may conduct testsupon or take samples from real property only with the consent of the owner orpursuant to an order entered under subsection (2) of this section. All testingand sampling must be done in conformity with applicable laws and regulations.Testing and sampling results shall be provided to the owner upon request.

      (2)If the owner of property objects to examination or survey of the property underthis section, or does not consent to the terms and conditions for testing orsampling of the property, the condemner may file a petition with the courtseeking an order providing for entry upon the property and allowing suchexamination, survey, testing or sampling as may be requested by the condemner.The court may enter an order establishing reasonable terms and conditions forentry and for any examination, survey, testing or sampling of the propertyrequested by the condemner. Reasonable compensation for damage or interferenceunder subsection (3) of this section may be established in the proceedingeither before or after entry is made upon the property by the condemner.

      (3)An owner is entitled to reasonable compensation for:

      (a)Any physical damage caused to the property by the entry upon or examination,survey, testing or sampling of the property, including any damage attributableto the diffusion of hazardous substances found on the property; and

      (b)Any substantial interference with the property’s possession or use caused bythe entry upon or examination, survey, testing or sampling of the property.

      (4)If a condemner is required to pay compensation to an owner in a proceedingunder subsection (2) of this section, and the condemner thereafter seekscondemnation of the same property, the owner is not entitled to any payment ofcompensation in the condemnation action that would result in the ownerreceiving a second recovery for the same damage or interference.

      (5)Nothing in this section affects any liability under any other provision of lawthat a condemner may have to an owner or occupant of property by reason ofentry upon or examination, survey, testing or sampling of property. [2003 c.477§2]

 

      35.225 [1971 c.741 §5;repealed by 1979 c.284 §199]

 

      35.235Agreement for compensation; status of resolution or ordinance of publiccondemner; status of action of private condemner; agreement effort notprerequisite.(1) Subject to ORS 758.015 and 836.050, whenever in the judgment of thecondemner it is necessary to acquire property for a purpose for which thecondemner is authorized by law to acquire property, the condemner shall, afterfirst declaring by resolution or ordinance such necessity and the purpose for whichit is required