2007 Oregon Code - Chapter 35 :: Chapter 35 - Eminent Domain - Public Acquisition of Property
Chapter 35 — Eminent
Domain; Public Acquisition of Property
2007 EDITION
EMINENT DOMAIN; PUBLIC ACQUISITION OF
PROPERTY
SPECIAL ACTIONS AND PROCEEDINGS
LIMITATION OF CONDEMNATION POWER
35.015Â Â Â Â Â Â Prohibition
on condemnation of certain properties with intent to convey property to private
party; exceptions
35.018Â Â Â Â Â Â Severability
PROCEDURE
35.205Â Â Â Â Â Â Short
title
35.215Â Â Â Â Â Â Definitions
for chapter
35.220Â Â Â Â Â Â Precondemnation
entry on real property
35.235Â Â Â Â Â Â Agreement
for compensation; status of resolution or ordinance of public condemner; status
of action of private condemner; agreement effort not prerequisite
35.245Â Â Â Â Â Â Commencement
of action; jurisdiction; parties
35.255Â Â Â Â Â Â Content
of complaint
35.265Â Â Â Â Â Â Advance
deposit by public condemner requiring immediate possession; effect on interest
otherwise allowable
35.275Â Â Â Â Â Â Advance
occupancy by private condemner; hearing; deposit or bond; effect of size of
bond or deposit on amount of just compensation
35.285Â Â Â Â Â Â Distribution
of deposits; effect of withdrawal on appeal
35.295Â Â Â Â Â Â DefendantÂ’s
answer
35.305Â Â Â Â Â Â Conduct
of trial; defendantÂ’s option; jury argument; neither side has burden of proof
of just compensation
35.315Â Â Â Â Â Â View
of property by order of court
35.325Â Â Â Â Â Â Effect
of judgment; effect of payment under judgment
35.335Â Â Â Â Â Â Effect
of condemnerÂ’s abandonment of action
35.346Â Â Â Â Â Â Offer
to purchase required before filing action for condemnation; appraisal;
arbitration; when costs and disbursements allowed
35.348Â Â Â Â Â Â Immediate
possession of property
35.350Â Â Â Â Â Â Immediate
possession of property by public body
35.352Â Â Â Â Â Â Notice
of immediate possession of property by public condemner; objection
35.355Â Â Â Â Â Â Appeal
35.365Â Â Â Â Â Â Effect
of withdrawal of award; disposition of award
35.375Â Â Â Â Â Â Chapter
as exclusive condemnation proceeding; exception
35.385Â Â Â Â Â Â Public
purpose use required of condemner; right of repurchase; specification of
duration of public purpose use; effect
35.390Â Â Â Â Â Â Effect
of failure of condemner to use property as required; price of repurchase; form
of offer of repurchase
35.395Â Â Â Â Â Â Change
in period of use; notice; effect of failure to agree on change; review by court
35.400Â Â Â Â Â Â Designation
of person to exercise right of repurchase; effect of failure to designate;
offer to repurchase; acceptance; notice; determination of price
35.405Â Â Â Â Â Â Designation
of person to exercise right of repurchase by multiple owners
35.410Â Â Â Â Â Â Right
to contest change in public purpose use; notice of proposed change
35.415Â Â Â Â Â Â Application
of ORS 35.385 to 35.415
RELOCATION OF DISPLACED PERSONS
35.500Â Â Â Â Â Â Definitions
for ORS 35.500 to 35.530
35.505Â Â Â Â Â Â Relocation
within neighborhood; notice prior to move; costs and allowances
35.510Â Â Â Â Â Â Duties
of public entities acquiring real property
35.515Â Â Â Â Â Â Required
disclosures for business and farm operations
35.520Â Â Â Â Â Â Decision
on benefits; hearing; review
35.525Â Â Â Â Â Â Construction
35.530Â Â Â Â Â Â Federal
law controls
CONDEMNATION BY STATE
35.550Â Â Â Â Â Â Definitions
for ORS 35.550 to 35.575
35.555Â Â Â Â Â Â Determination
of necessity; suit by Attorney General
35.560Â Â Â Â Â Â Action
by district attorney
35.565Â Â Â Â Â Â Procedure
for condemnation
35.570Â Â Â Â Â Â Payment
of expenses of proceeding, value and damages
35.575Â Â Â Â Â Â Precondemnation
compensation not required
CONDEMNATION OF PROPERTY ADJOINING PROPOSED
ROADWAYS
35.600Â Â Â Â Â Â Application
35.605Â Â Â Â Â Â Authorization
to acquire adjoining property for roadways
35.610Â Â Â Â Â Â Ordinance
or resolution required
35.615Â Â Â Â Â Â Restrictions
on future use of property acquired adjacent to roadway
35.620Â Â Â Â Â Â Acquisition
of land adjoining road boundaries declared necessary
35.625Â Â Â Â Â Â Procedure
to ascertain compensation and damages
     35.010 [Repealed by 1971 c.741 §38]
LIMITATION OF CONDEMNATION POWER
     35.015
Prohibition on condemnation of certain properties with intent to convey
property to private party; exceptions. (1) Except as otherwise provided in this section, a public body as
defined in ORS 174.109 may not condemn private real property used as a
residence, business establishment, farm, or forest operation if at the time of
the condemnation the public body intends to convey fee title to all or a
portion of the real property, or a lesser interest than fee 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 or safety of the community by reason of
contamination, dilapidated structures, improper or insufficient water or
sanitary facilities, or any combination of these factors;
     (b) Any timber, crops, top soil, gravel or
fixtures to be removed from the real property being condemned;
     (c) Real property condemned for
maintenance, improvement, or construction of transportation facilities,
transportation systems, utility facilities or utility transmission systems;
     (3) Subsection (1) of this section does
not prohibit a public body from leasing a portion of a public facility to a
privately owned business for the provision of retail 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 the public body intends to consider
condemnation of a lot or parcel. If the public body publishes notice under this
subsection, subsection (1) of this section does not apply for such time
necessary to provide the public body reasonable opportunity to condemn the
property, if the lot or parcel is conveyed by the owner of the lot or parcel to
another private party after the notice is published, but prior to the time the
property is condemned.
     (5) Subsection (1) of this section does
not affect the ability of a public body as defined in ORS 174.109 to make a
conveyance of a non-possessory interest in condemned property for the purpose
of financing acquisition of the property.
     (6) A court shall independently determine
whether a taking of property complies with the requirements of this section,
without deference to any determination made by the public body. If a court
determines that a taking of property does not comply with the requirements of
this section, the owner of the lot or parcel that is the subject of the
condemnation proceeding shall be entitled to reasonable attorney fees, expenses,
costs, and other disbursements reasonably incurred to defend against the
proposed condemnation. [2007 c.1 §2]
     35.018
Severability. If any portion
or portions of chapter 1, Oregon Laws 2007, are declared invalid by 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 was adopted by the people by
initiative petition but was not added to or made a part of ORS chapter 35 or
any series therein. See Preface to Oregon Revised Statutes for further
explanation.
     Note: Legislative Counsel has substituted “chapter
1, Oregon Laws 2007,” for the words “this 2006 Act” in section 3, chapter 1,
Oregon Laws 2007, compiled as 35.018. Specific ORS references have not been
substituted, pursuant to 173.160. The sections for which substitution otherwise
would be made may be determined by referring to the 2007 Comparative Section
Table located in Volume 20 of ORS.
     35.020 [Repealed by 1971 c.741 §38]
     35.030 [Repealed by 1971 c.741 §38]
     35.040 [Amended by 1967 c.479 §1; repealed by 1971
c.741 §38]
     35.050 [Repealed by 1971 c.741 §38]
     35.060 [Repealed by 1971 c.741 §38]
     35.070 [Amended by 1967 c.479 §2; repealed by 1971
c.741 §38]
     35.080 [Repealed by 1971 c.741 §38]
     35.085 [1967 c.479 §§4,5; repealed by 1971 c.741 §38]
     35.090 [Repealed by 1971 c.741 §38]
     35.100 [Repealed by 1971 c.741 §38]
     35.105 [1967 c.479 §6; repealed by 1971 c.741 §38]
     35.110 [Repealed by 1971 c.741 §38]
     35.120 [Repealed by 1971 c.741 §38]
     35.130 [Repealed by 1971 c.741 §38]
     35.140 [Repealed by 1971 c.741 §38]
PROCEDURE
     35.205
Short title. This chapter
may be cited as the General Condemnation Procedure Act. [1971 c.741 §2]
     35.215
Definitions for chapter. As
used in this chapter, unless the context otherwise requires:
     (1) “Condemner” means the state, any city,
county, school district, municipal or public corporation, political subdivision
or any instrumentality or any agency thereof or a private corporation that has
the power to exercise the right of eminent 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, political subdivision or any instrumentality
or any agency thereof.
     (4) “Private condemner” means a private
corporation that has the power to exercise the right of eminent domain.
     (5) “Property” means real or personal
property or any interest therein of any kind or 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]
     35.220
Precondemnation entry on real property. (1) Subject to the requirements of this section, a condemner may enter
upon, examine, survey, conduct tests upon and take samples from any real
property that is subject to condemnation by the condemner. A condemner may not
enter upon any land under the provisions of this section without first
attempting to provide actual notice to the owner or occupant 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 likely to be seen. The posted
notice must give the condemnerÂ’s name, address and telephone number and the
purpose of the entry. A condemner may conduct tests upon or take samples from
real property only with the consent of the owner or pursuant to an order
entered under subsection (2) of this section. All testing and 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 under this section, or does not consent
to the terms and conditions for testing or sampling of the property, the
condemner may file a petition with the court seeking an order providing for
entry upon the property and allowing such examination, survey, testing or sampling
as may be requested by the condemner. The court may enter an order establishing
reasonable terms and conditions for entry and for any examination, survey,
testing or sampling of the property requested by the condemner. Reasonable
compensation for damage or interference under subsection (3) of this section
may be established in the proceeding either 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 attributable to the diffusion of hazardous
substances found on the property; and
     (b) Any substantial interference with the
propertyÂ’s possession or use caused by the 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 proceeding under subsection (2) of this section,
and the condemner thereafter seeks condemnation of the same property, the owner
is not entitled to any payment of compensation in the condemnation action that
would result in the owner receiving a second recovery for the same damage or
interference.
     (5) Nothing in this section affects any liability
under any other provision of law that a condemner may have to an owner or
occupant of property by reason of entry 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]
     35.235
Agreement for compensation; status of resolution or ordinance of public
condemner; status of action of private condemner; agreement effort not
prerequisite. (1) Subject to
ORS 758.015 and 836.050, whenever in the judgment of the condemner it is necessary
to acquire property for a purpose for which the condemner is authorized by law
to acquire property, the condemner shall, after first declaring by resolution
or ordinance such necessity and the purpose for which it is required, attempt
to agree with the owner with respect to the compensation to be paid therefor,
and the damages, if any, for the taking thereof.
     (2) The resolution or ordinance of a
public condemner is presumptive evidence of the public necessity of the
proposed use, that the property is necessary therefor and that the proposed
use, improvement or project is planned or located in a manner which will be
most compatible with the greatest public good and the least private injury.
     (3) The commencement of an action to
condemn property by a private condemner creates a disputable presumption of the
necessity of the proposed use, that the property is necessary therefor and that
the proposed use, improvement or project is planned or located in a manner
which will be most compatible with the greatest public good and the least
private injury.
     (4) The question of the validity of the
disputable presumptions created in subsection (3) of this section, if raised,
shall be determined by the court in a summary proceeding prior to trial.
     (5) It is not a prerequisite to the
exercise of the right of eminent domain by the condemner to attempt first to
agree with an owner or to allege or prove any effort to agree with such owner
as to reasonable value, when such owner is at the time concealed within the
state or, after reasonable effort by condemner, cannot be found within the
state. [1971 c.741 §6; 1973 c.579 §1]
     35.245
Commencement of action; jurisdiction; parties. (1) If the condemner is unable to agree with
or locate the owner of the property under ORS 35.235, then an action to condemn
property may be commenced in the circuit court of the county in which the
property proposed to be condemned, or the greater portion thereof, is located.
     (2) An action may be commenced against the
person in whose name the record title appears. There may be included as
defendants any lessee or other person in possession and all other persons
having or claiming an interest in the property. [1971 c.741 §7]
     35.255
Content of complaint. The
complaint shall describe the property sought to be condemned and shall allege
the true value of the property sought and the damage, if any, resulting from
the appropriation thereof. [1971 c.741 §8; 1979 c.284 §75]
     35.265
Advance deposit by public condemner requiring immediate possession; effect on
interest otherwise allowable.
(1) When a public condemner commences an action for the condemnation of
property and immediate possession of the property is considered necessary by
the public condemner, a fund shall be created in the amount estimated to be the
just compensation for the property and placed in the hands of the treasurer of
the public condemner for deposit with the clerk of the court wherein the action
was commenced, for the use of the defendants in the action.
     (2) When the public condemner is a state
agency and immediate possession of property is considered necessary by the
agency, the agency shall certify to such facts and authorize an advancement out
of funds available to the agency of the amount estimated by the agency to be
just compensation for the property. Upon such certification and authorization,
a warrant shall be drawn in favor of the clerk of the court in the amount
authorized.
     (3) Upon the deposit in court by the
public condemner of the estimated amount of just compensation as provided by
subsections (1) and (2) of this section, no interest shall be allowed thereon
in the judgment. [1971 c.741 §10; 2003 c.576 §236]
     35.275
Advance occupancy by private condemner; hearing; deposit or bond; effect of
size of bond or deposit on amount of just compensation. (1) At any time after an action is commenced
to acquire any property, a private condemner may apply to the court for an
order to occupy the property to be condemned and to make use of the property
for the purposes for which it is being appropriated.
     (2) At the hearing on the motion, the
court shall determine the reasons for requiring a speedy occupation. The court
shall grant the motion if, giving consideration to the public interest
involved, it finds that the interests of the owners will be adequately
protected. The court may make such provisions or orders as necessary, so that
the advance taking or an advance payment, as provided by subsection (3) of this
section, will not be prejudicial to either party.
     (3)(a) If an order to occupy the property
is granted, it may also require the private condemner to deposit with the court
either such sum as the court finds reasonable on account of just compensation
to be awarded or to deposit a surety bond in an amount and with such surety as
the court may approve. The surety bond shall be conditioned to the effect that
the private condemner shall pay to the owners of the property just compensation
for the property taken or restitution, if any, and costs, disbursements and
reasonable attorney fees as finally determined.
     (b) After an order to occupy is entered,
if it appears necessary in order to protect the interests of the owners of the
property, the court at any time may require the private condemner to deposit
with the court an additional bond or sum on account of just compensation to be
awarded.
     (c) Evidence as to the finding of the
court regarding the amount of such bond or deposit shall not be admissible at
the trial of just compensation. [1971 c.741 §11]
     35.285
Distribution of deposits; effect of withdrawal on appeal. (1) The court may distribute all or any part
of the funds deposited by a condemner to the persons entitled thereto for or on
account of the just compensation to be awarded in the action, upon such terms
and conditions as may appear just and reasonable.
     (2) Any persons entitled to withdraw any
or all of the deposit, as provided by subsection (1) of this section, may do so
at any time without waiving rights of appeal provided by ORS 35.355. [1971
c.741 §12]
     35.295
DefendantÂ’s answer. The
defendant in answer may set forth any legal defense the defendant may have to
the condemnation. The defendant shall also allege the true value of the
property and the damage, if any, resulting from the appropriation thereof. [1971
c.741 §13]
     35.305
Conduct of trial; defendantÂ’s option; jury argument; neither side has burden of
proof of just compensation.
(1) Evidence shall be received and the trial conducted in the order and manner
prescribed for a civil action in the circuit court, except that the defendant
shall have the option of proceeding first or last in the presentation of
evidence, if notice of such election is filed with the court and served on the
condemner at least seven days prior to the date set for trial. If no notice of election
is filed, the condemner shall proceed first in the presentation of evidence.
Unless the case is submitted by both sides to the jury without argument, the
party who presents evidence first shall also open and close the argument to the
jury.
     (2) Condemner and defendant may offer
evidence of just compensation, but neither party shall have the burden of proof
of just compensation. [1971 c.741 §14; 1979 c.284 §76]
     35.315
View of property by order of court. If motion is made by either party before the formation of the jury,
the court shall order a view of the property in question. Upon the return of
the jury, the evidence of the parties may be heard and the verdict of the jury
given. [1971 c.741 §15; 2007 c.71 §11]
     35.325
Effect of judgment; effect of payment under judgment. Upon the assessment of the compensation by
the jury, the court shall give judgment appropriating the property in question
to the condemner, conditioned upon the condemnerÂ’s paying into court the
compensation assessed by the jury; and, after the making of such payment, the
judgment shall become effective to convey the property, and the right of
possession thereof to the condemner if not previously acquired. [1971 c.741 §16]
     35.335
Effect of condemnerÂ’s abandonment of action. (1) If an action is abandoned by the condemner, the court shall enter
judgment in favor of the defendant for costs and disbursements in the action
and for reasonable attorney fees and reasonable expenses as determined by the
court.
     (2) Expenses mean costs of appraisals and
fees for experts incurred in preparing and conducting the defense to the
action.
     (3) An action is considered abandoned if,
at any time after filing a complaint, the case is dismissed or terminated or
the condemner files an election not to take the property. If an election is not
filed within 60 days after the verdict, the condemner is considered to have
elected to take the property. [1971 c.741 §17]
     35.345 [1971 c.741 §18; repealed by 1973 c.617 §1
(35.346 enacted in lieu of 35.345)]
     35.346
Offer to purchase required before filing action for condemnation; appraisal;
arbitration; when costs and disbursements allowed. (1) At least 40 days before the filing of
any action for condemnation of property or any interest in property, the
condemner shall make an initial written offer to the owner or party having an
interest to purchase the property or interest, and to pay just compensation
therefor and for any compensable damages to remaining property.
     (2) The offer shall be accompanied by any
written appraisal upon which the condemner relied in establishing the amount of
compensation offered. If the condemner determines that the amount of just
compensation due is less than $20,000, the condemner, in lieu of a written
appraisal, may provide to the owner or other person having an interest in the
property a written explanation of the bases and method by which the condemner
arrived at the specific valuation of the property. The amount of just
compensation offered shall not be reduced by amendment or otherwise before or
during trial except on order of the court entered not less than 60 days prior
to trial. An order for reduction of just compensation offered, pleaded by the
condemner in the complaint or deposited with the court for the use and benefit
of the owner pending outcome of the condemnation action, may be entered only
upon motion of the condemner and a finding by clear and convincing evidence
that the appraisal upon which the original offer is based was the result of a
mistake of material fact that was not known and could not reasonably have been
known at the time of the original appraisal or was based on a mistake of law.
     (3) Unless otherwise agreed to by the
condemner and the owner, prior to appraising the property the condemner shall
provide not less than 15 daysÂ’ written notice to the owner of the planned
appraisal inspection. The property owner and designated representative, if any,
shall be invited to accompany the condemnerÂ’s appraiser on any inspection of
the property for appraisal purposes.
     (4) The owner has not less than 40 days
from the date the owner receives the initial written offer required by
subsection (1) of this section, accompanied by the appraisal or written
explanation required by subsection (2) of this section, to accept or reject the
offer. If the owner rejects the condemnerÂ’s offer and obtains a separate
appraisal, the owner shall provide the condemner with a copy of the ownerÂ’s
appraisal not less than 60 days prior to trial or arbitration.
     (5)(a) Failure to provide the opposing
party with a copy of the appropriate appraisal as provided in subsections (2)
and (4) of this section shall prohibit the use of the appraisal in arbitration
or at trial.
     (b) In the event the owner and condemner
are unable to reach agreement and proceed to trial or arbitration as provided
in subsection (6) of this section, each party to the proceeding shall provide
to every other party a copy of every appraisal obtained by the party as part of
the condemnation action.
     (6)(a) If an action based on the condemnation
is filed, the owner may elect to have compensation determined by binding
arbitration if the total amount of compensation claimed by any party does not
exceed $20,000. Notice of an election of binding arbitration must be given to
the condemner at least 90 days prior to the date on which an arbitration
hearing is scheduled under ORS 36.420.
     (b) Notwithstanding the amount established
under ORS 36.400, if the owner elects to proceed with binding arbitration, the
arbitration shall be conducted according to the mandatory arbitration program
established under ORS 36.400 to 36.425. Notwithstanding ORS 36.425, no party
may request a trial de novo after the filing of the decision and award of the
arbitrator. Within 20 days after the filing of the decision and award of the
arbitrator under ORS 36.425, any party may file a motion with the court for the
vacation, modification or correction of the award. The court may vacate an
award only if there is a basis to vacate the award described in ORS 36.705
(1)(a) to (d). The court may modify or correct an award only for the grounds
given in ORS 36.710. Except as provided in this subsection, no party may appeal
from the decision and award of an arbitrator if the owner elects binding
arbitration in lieu of trial.
     (c) If the total amount of compensation
claimed exceeds $20,000 but is less than $50,000, the owner may elect to have
compensation determined by nonbinding arbitration under the applicable
provisions of ORS 36.400 to 36.425.
     (7) If a trial is held or arbitration
conducted for the fixing of the amount of compensation to be awarded to the
defendant owner or party having an interest in the property being condemned,
the court or arbitrator shall award said defendant costs and disbursements
including reasonable attorney fees and reasonable expenses as defined in ORS
35.335 (2) in the following cases, and no other:
     (a) If the amount of just compensation
assessed by the verdict in the trial exceeds the initial written offer in
settlement submitted by condemner to those defendants appearing in the action
pursuant to subsection (1) of this section; or
     (b) If the court finds that the first
written offer made by condemner to defendant in settlement prior to filing of
the action did not constitute a good faith offer of an amount reasonably
believed by condemner to be just compensation.
     (8) If any appraisal provided to a party
under this section relies on a written report, opinion or estimate of a person
who is not an appraiser, a copy of the written report, opinion or estimate must
be provided with the appraisal. If any appraisal provided under this section
relies on an unwritten report, opinion or estimate of a person who is not an
appraiser, the party providing the appraisal must also provide the name and
address of the person who provided the unwritten report, opinion or estimate.
     (9) Costs and disbursements other than
reasonable attorney fees and expenses as defined in ORS 35.335 (2) shall be
awarded to condemner in all cases other than those in which defendant is entitled
to costs and disbursements under subsection (7) of this section. [1973 c.617 §2
(enacted in lieu of 35.345); 1997 c.797 §1; 2003 c.476 §1; 2003 c.598 §33; 2005
c.274 §5; 2005 c.433 §1; 2007 c.1 §4]
     35.348
Immediate possession of property. Notwithstanding ORS 35.346, if a condemner determines that an
emergency that poses a threat to persons or property exists and that immediate
possession of the property is necessary, the condemner may immediately file a
condemnation action after making an initial written offer under ORS 35.346 (1)
accompanied by the appraisal or explanation required by ORS 35.346 (2). [1997
c.797 §3; 2003 c.476 §3]
     35.350
Immediate possession of property by public body. This chapter does not affect the ability of
a public body, as defined in ORS 174.109, to take immediate possession of
property in an emergency that poses a threat to persons or property. [2005
c.565 §2]
     35.352
Notice of immediate possession of property by public condemner; objection. (1) At any time after a condemnation action
is commenced, a public condemner may serve notice that the public condemner
will take immediate possession of the property that is the subject of the
action. The notice must be served in the manner provided by ORCP 9 on all
defendants in the action.
     (2) If notice is served under this
section, a defendant in a condemnation action may object to immediate
possession of property by a public condemner by filing a written objection with
the court within 10 days after notice is served on the defendant under this
section and serving a copy of the objection on the public condemner in the
manner provided by ORCP 9. The objection must request that the court schedule a
hearing on the objection at the earliest possible time. The only issues that a
court may consider upon objection are:
     (a) Whether the condemnation is legal; and
     (b) Subject to the presumption established
by ORS 35.235 (2), whether the public condemner has acted in bad faith, engaged
in fraud or engaged in an abuse of discretion under a delegation of authority.
     (3) If notice is served under this section
and an objection is not filed with the court within the time allowed under
subsection (2) of this section, the public condemner may at any time thereafter
file with the court a form of order confirming the public condemnerÂ’s
possession of the property as of the date specified in the notice. The form of
order must be accompanied by an affidavit attesting to service of the notice as
required by subsection (1) of this section, and a statement that an objection
was not filed within 10 days after notice was served on the defendants in the
action. Upon filing of the affidavit, the clerk of the court shall affix the
seal of the court to the form of order. The order may thereafter be enforced in
the same manner as any other order of the court.
     (4) A notice under this section must be in
substantially the following form:
______________________________________________________________________________
CIRCUIT COURT FOR THE
COUNTY OF ______
                      )
______Â Â Â Â Â Â Â Â Â Â Â )
Plaintiff,         )          NOTICE
OF
                      )          IMMEDIATE
                      )          POSSESSION
                      )
     vs.            )          Case
No. _____
                      )
______Â Â Â Â Â Â Â Â Â Â Â )
Defendant.     )
     TO THE DEFENDANTS:
     By service of this notice, you are advised
that the plaintiff will take possession of the property described in the
complaint on:
     (1) _________, 2___, if the deposit
required by ORS 35.265 has been made by that date; or
     (2) The date on which the deposit required
by ORS 35.265 is made if that date is later than the date specified above.
     You may file an objection with the court
within 10 days after this notice is served on you. An objection may be made
only to determine:
     (1) Whether the condemnation is legal; and
     (2) Subject to the presumption established
by ORS 35.235 (2), whether the public condemner has acted in bad faith, engaged
in fraud or engaged in an abuse of discretion under a delegation of authority.
_____________________
Attorney for Plaintiff
_____________________
Address
_____________________
Telephone Number
______________________________________________________________________________
     (5) The court shall expeditiously consider
any objection filed under this section to prevent prejudice to the public
condemnerÂ’s need for immediate possession.
     (6) The ability of the defendant in a
condemnation action to assert legal defenses in the answer of the defendant
under ORS 35.295 is not affected solely by reason of the filing of an objection
to a notice served under this section, or by reason of the failure to file an
objection.
     (7) This section does not impose a
requirement that a public condemner use the procedure described in this
section, and the procedure described in this section is not the exclusive
method by which a public condemner may obtain possession of property. [2005
c.565 §3]
     35.355
Appeal. Either party to the
action may appeal from the judgment in like manner and with like effect as in
ordinary cases, but the appeal shall not stay the proceedings so as to prevent
the condemner from taking possession of the property and using it for the
purposes for which it is being appropriated. In the event the defendant
prevails on an appeal, the costs and disbursements of the defendant, including
a reasonable attorney fee to be fixed by the court, shall be taxed by the clerk
and recovered from the condemner. [1971 c.741 §19]
     35.365
Effect of withdrawal of award; disposition of award. If the defendant withdraws the compensation
awarded by the court or jury, the defendant waives the right of appeal; and, if
the defendant does not, such sum shall remain in the control of the court, to
abide the event of the appeal. If an unknown owner of the property or other
defendant does not appear and claim the sum, it shall be invested for the
benefit of whom it may concern, as in case of unclaimed moneys in the sale and
partition of lands. [1971 c.741 §20]
     35.375
Chapter as exclusive condemnation proceeding; exception. Except for procedures provided in ORS
chapter 368, any action for the condemnation of property under the power of
eminent domain shall be conducted according to this chapter. [1971 c.741 §3;
1979 c.873 §3; 1981 c.153 §52]
     35.385
Public purpose use required of condemner; right of repurchase; specification of
duration of public purpose use; effect. (1) If real property is acquired by a condemner by agreement with the
owner of such property after commencement of an action under ORS 35.245 for the
appropriation of such property but prior to judgment in such action, the
condemner and the owner shall:
     (a) Specify in such agreement for the real
property a reasonable period within which the real property must be used by the
condemner for a public purpose or specify a 10-year period for such use and
provide that the right of repurchase of the real property or any portion
thereof may be exercised as provided in ORS 35.385 to 35.415; or
     (b) Specify that the right of repurchase
of the real property has been waived by the owner and, in such case, not
specify a period within which the real property must be used by the condemner
for a public purpose.
     (2) If real property is acquired by a
condemner under this chapter by judgment given in a condemnation action under
ORS 35.325, the court shall:
     (a) Specify in the judgment a reasonable
period within which the real property must be used by the condemner for a
public purpose or specify a 10-year period, and provide that the right of
repurchase may be exercised with respect to the real property as provided in
ORS 35.385 to 35.415; or
     (b) Specify that the right of repurchase
of the real property has been waived by the owner and, in such case, not
specify a period within which the real property must be used by the condemner
for a public purpose.
     (3) For the purposes of subsection (2)(a)
of this section, the resolution or ordinance of the condemner is presumptive
evidence that the period of time that is proposed by the condemner is a
reasonable period in which the real property must be used by the condemner for
a public purpose; provided, however, that if the resolution or ordinance
specifies a 10-year period or less, neither the owner nor a designated
beneficiary of the owner can contest the reasonableness of the period
specified. [1973 c.720 §2]
     35.390
Effect of failure of condemner to use property as required; price of
repurchase; form of offer of repurchase. (1) If a condemner fails to use the real property or any portion
thereof acquired under this chapter within the time specified in an agreement
entered into under ORS 35.385 (1) or with the terms of a judgment given under
ORS 35.325 and 35.385 (2), whichever applies, and the prior owner of the real
property has not waived the right to repurchase the real property, the
condemner shall offer such property or any portion thereof, that has not been
used for a public purpose within the specified period, to the prior owner or
the beneficiary of the prior owner designated as provided in ORS 35.400. The
condemner shall, at its expense, insure the title to any property or portion
thereof conveyed or vested in the owner or beneficiary under any provision of
ORS 35.385 to 35.415, free and clear of any and all encumbrances except those
subject to which the condemner originally took such property.
     (2) The prior owner or beneficiary
described in subsection (1) of this section may repurchase from the condemner
the real property that is subject to the right of repurchase for a price equal
to the sum of the compensation and damages paid by the condemner for the real
property plus interest at the rate of seven percent per year from the date of
the conveyance of the real property by the prior owner to the condemner.
     (3) If only a portion of the real property
acquired by a condemner is subject to the right of repurchase under ORS 35.385
to 35.415, the prior owner or beneficiary may acquire such portion for a price
equal to the sum of:
     (a) The fair cash market value of the
portion subject to the right of repurchase, as of the date of the commencement
of any action subject to ORS 35.385;
     (b) The damages for diminution in value of
the remainder, if any, of the former ownerÂ’s property not so acquired, as of
the date of the commencement of any action subject to ORS 35.385; and
     (c) Interest at the rate of seven percent
per year from the date of the conveyance of the real property by the prior
owner to the condemner.
     (4) The offer to repurchase only a portion
of real property as provided in subsection (1) of this section and ORS 35.400
(3), shall be in writing and shall include the price for repurchase as
determined by the condemner, including an itemization of the components
thereof, pursuant to subsection (3) of this section. [1973 c.720 §3; 2003 c.14 §19]
     35.395
Change in period of use; notice; effect of failure to agree on change; review
by court. (1) The period
specified in an agreement or judgment as provided in ORS 35.385 may be changed
as provided in this section, if the prior owner of the real property has not
waived the right of repurchase and the condemner finds that it will be unable
to use all or a portion of the real property for such purpose within the
specified period and requires a reasonable extension of such period for the
completion of its project on the real property.
     (2) Upon a finding under subsection (1) of
this section, a condemner shall notify the prior owner or designated
beneficiary of the requested change in period. The condemner shall negotiate
with the prior owner or beneficiary on the requested change.
     (a) Notification under this subsection
shall consist of mailing a letter by certified mail to the last address of the
prior owner or the designated beneficiary of the owner as shown in the
agreement or judgment whereby the real property was acquired or the address
subsequently supplied by such owner or beneficiary. If no response has been
received by the condemner within 60 days after receipt of notice by the owner
or designated beneficiary, all the rights of the owner or designated
beneficiary under ORS 35.385 to 35.415 shall be considered waived.
     (b) If the condemner cannot locate the
prior owner or the designated beneficiary of the owner at the last-known
address of the owner or the designated beneficiary, notice may be effected by
publication. The publication shall be made in a newspaper published in the
county where the property is located, or if no newspaper is published in the
county, then in a newspaper designated as being most likely to give notice to
the prior owner or the beneficiary of the prior owner. The newspaper utilized
shall meet the requirements of ORS 193.020. The notice shall contain the name
of the public project, a general description of the location of the property,
the change in purpose or extension of time desired by the condemner and a time
within which the owner or the beneficiary of the owner must respond to the
notice. The notice shall be published not less than once each week for four
weeks. The publication of notice may be directed to one or more owners or
beneficiaries affected by the same project. If no response is received by the
condemner within 10 days after the date of the last publication of notice, all
rights of the prior owner or designated beneficiary shall be considered waived.
     (3) If, after negotiation, the prior owner
or beneficiary and the condemner agree on the proposed change in period, the
period as changed shall, for the purposes of ORS 35.385 to 35.415, be
considered the period as specified in the agreement or judgment under ORS
35.385. In the case of real property acquired by a condemner by judgment under
ORS 35.325, the condemner shall notify the court by which the judgment was
given of the agreed upon change in period and the court shall modify such
judgment accordingly.
     (4) If the prior owner or beneficiary and
the condemner cannot, after negotiation, agree on the proposed change in
period, the condemner may:
     (a) In the case of real property acquired
by an agreement under ORS 35.235 (1), petition the circuit court for the county
within which such real property is situated for a hearing to determine whether
the proposed change in period is reasonable and necessary in the public
interest; or
     (b) In the case of real property acquired
by a judgment given under ORS 35.325, petition the court by which such judgment
was given for a hearing to determine whether it is reasonable and necessary in
the public interest to modify such judgment to permit the proposed change in
period. The condemner in its petition may include as parties and serve all or
any owners and designated beneficiaries whose property is affected by the same
project.
     (5) If, after a hearing under subsection
(4) of this section, the court finds that the proposed change in period is
reasonable and necessary in the public interest, the court shall grant such
change. For the purposes of ORS 35.385 to 35.415, a period as changed by the
court shall be considered the period specified in the agreement or judgment
described in ORS 35.385. For the purposes of this subsection, the resolution or
ordinance of the condemner is presumptive evidence that the change in period
proposed by the condemner is reasonable and necessary in the public interest.
     (6) If, after a hearing under subsection
(4) of this section, the court finds that the proposed change in period is
unreasonable or not necessary in the public interest, the court shall deny the
requested change. In such case, the terms of the original agreement or judgment
shall control for the purpose of the exercise of the right of repurchase under
ORS 35.385 to 35.415. [1973 c.720 §4]
     35.400
Designation of person to exercise right of repurchase; effect of failure to
designate; offer to repurchase; acceptance; notice; determination of price. (1) At the time of entering into an
agreement pursuant to ORS 35.385 (1) for the acquisition of real property by a
condemner or prior to the time of giving judgment for the acquisition of real
property by a condemner under ORS 35.325, the owner of the real property to be
acquired may, if such owner has not waived the right of repurchase under ORS
35.385 to 35.415, designate a person to exercise such right of repurchase. Such
designation shall constitute an assignment of the right of the owner of such
property to exercise the right of repurchase otherwise available under ORS
35.385 to 35.415. The name and address of the person so designated shall be
included in such agreement or judgment. Such owners and designated
beneficiaries shall also notify the condemner in writing of any change of
address so that their respective current addresses shall be of record with the
condemner. The person so designated may not assign or transfer the right of
repurchase.
     (2) If an owner of real property to be
acquired by a condemner does not designate a person to exercise the right of
repurchase under ORS 35.385 to 35.415 and such owner has not waived such right
of repurchase, only the owner may exercise the right of repurchase under ORS
35.385 to 35.415. If such owner dies while real property is still subject to a
right of repurchase by the owner, the personal representative of such ownerÂ’s
estate may act as the owner to exercise the right of repurchase with respect to
such property on behalf of the estate of the owner at any time prior to the
discharge of the personal representative under ORS 116.213.
     (3) Upon receipt from a condemner of an
offer to repurchase any real property or portion thereof in accordance with ORS
35.385 to 35.415:
     (a) In the case of an offer to repurchase
the entire parcel of real property to which ORS 35.385 applies, if the owner or
beneficiary of such right of repurchase does not accept such offer within 30
days, the right of repurchase is terminated and the condemner may use and
dispose of such property or portion as otherwise provided by law.
     (b) In the case of an offer to repurchase
only a portion of a parcel of real property to which ORS 35.385 applies, the
owner or beneficiary of such right of repurchase may:
     (A) Accept such offer within 30 days; or
     (B) Notify the condemner within 30 days of
the desire of the owner or beneficiary to exercise such right, but refuse to
accept the price established by the condemner in the offer to repurchase made
pursuant to ORS 35.390 (4).
     (c) If the owner or beneficiary of the
right of repurchase fails to timely notify the condemner pursuant to either
paragraph (b)(A) or (B) of this subsection, the right of repurchase is
terminated and the condemner may use or dispose of such portion of property as
otherwise provided by law.
     (d) If timely notice of intent to exercise
the right of repurchase is given by the owner or beneficiary as provided by
paragraph (b)(B) of this subsection, the owner or beneficiary must within 60
days thereafter commence an action, in the court in which the original action
by the condemner to acquire such real property was commenced, to determine the
sole issue of the price to be paid upon such repurchase, pursuant to the
provisions of ORS 35.390 (3). Failure to commence such an action within such 60-day
period shall void such notice of intention to exercise repurchase for the
purposes of paragraph (c) of this subsection.
     (A) Upon the determination of the price
for repurchase by the court or jury, the court shall give judgment vesting
title to the property in the owner or the beneficiary, conditioned upon payment
into court of the assessed price by the owner or beneficiary within 90 days
after the date of the judgment; and upon the making of such payment, the
judgment shall become effective to convey the property and the right of
possession thereof to the owner or beneficiary. Failure to make such payment
into court within 90 days of the date of the judgment shall void the notice of
intent to exercise the right of repurchase for the purposes of paragraph (c) of
this subsection, and the judgment shall be withdrawn by the court.
     (B) If the price determined pursuant to
the provisions of this paragraph is less than the price established by the
condemner in its written offer to repurchase, the costs and disbursements of
the owner or beneficiary, as specified in ORS 35.335 and 35.346, shall be taxed
by the clerk; and the judgment rendered shall reflect such costs and
disbursements only as an offset against the price to be paid into court by the
owner or beneficiary. [1973 c.720 §5]
     35.405
Designation of person to exercise right of repurchase by multiple owners. Notwithstanding any other provision of ORS
35.385 to 35.415, in any instance in which ORS 35.385 applies, where the
agreement by which the condemner acquired the property is executed by more than
one person exclusive of the condemner, or where the judgment given in a
condemnation action by which the condemner acquired the property includes more
than one named defendant, all such persons executing such agreement, or all
such named defendants must designate one person to act as beneficiary in the
exercise of the right of repurchase, unless all such persons executing such
agreement, or all such named defendants, waive such right of repurchase as
provided in ORS 35.385 to 35.415. Such designated beneficiary thereafter shall
exclusively have and exclusively may exercise all rights, remedies and
obligations provided in ORS 35.385 to 35.415. [1973 c.720 §6]
     35.410
Right to contest change in public purpose use; notice of proposed change. A prior owner of real property acquired
pursuant to an agreement entered into under ORS 35.385 (1) or a judgment given
under ORS 35.235 and 35.385 (2), whichever applies, or the designated
beneficiary of such owner, may contest any proposed change by the condemner in
the public purpose for which such real property was acquired in the manner
provided for contesting a change in the period specified for the use of such
real property by the condemner under ORS 35.395 (4). The resolution or
ordinance of the condemner is presumptive evidence that a proposed change of
use proposed by the condemner is reasonable and necessary in the public
interest. Each condemner proposing any such change in public purpose shall
notify each such owner or designated beneficiary of such proposed change and
the reasons therefor in the manner provided in ORS 35.395 (2) for notification
of a proposed change in the period specified for use of such real property by
the condemner. Each such notice shall be mailed to the most recent address of
the owner or designated beneficiary of record with the condemner. [1973 c.720 §7]
     35.415
Application of ORS 35.385 to 35.415. (1) ORS 35.385 to 35.415 apply only to property acquired after the
filing of a complaint pursuant to a resolution or ordinance adopted as provided
in ORS 35.235 (1) on or after October 5, 1973, and for which a condemnation
action is commenced on or after October 5, 1973.
     (2) Notwithstanding ORS 35.375, ORS 35.385
to 35.415 apply to real property acquired by a county pursuant to ORS chapter
368.
     (3) ORS 35.385 to 35.415 shall not apply
to any real property acquired under ORS 35.385 (1) and (2) after the date the
real property is used for the purpose for which it was acquired nor shall ORS
35.385 to 35.415 apply to any tract of real property where the compensation and
damages paid to the owner is less than $1,000. [1973 c.720 §8; 1981 c.153 §53]
RELOCATION OF
DISPLACED PERSONS
     35.500
Definitions for ORS 35.500 to 35.530. As used in ORS 35.500 to 35.530:
     (1) “Displaced person” means any person
who moves, or is required to move the personÂ’s residence and personal property
incident thereto, or the personÂ’s business or farm operation as a result of:
     (a) Acquisition of the real property, in
whole or in part, by a public entity; or
     (b) Receipt of a written order by such
person from a public entity to vacate the property for public use.
     (2) “Federal Act” means the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970 (P.L.
91-646, 42 U.S.C. 4601 et seq.) as in effect on January 1, 2003.
     (3) “Public entity” includes the state, a
county, a city, a consolidated city-county as defined in ORS 199.705 (1), a
district, public authority, public agency and any other political subdivision
or public corporation in the state when acquiring real property or any interest
therein for public use. “Public entity” also includes a private corporation
that has the power to exercise the right of eminent domain.
     (4) “Public use” means a use for which
real property may be acquired by a public entity as provided by law.
     (5) “Real property” or any interest
therein includes tenements and hereditaments, and includes every interest,
freehold and chattel, legal and equitable, present and future, vested and
contingent, in such tenements and hereditaments. [Formerly 281.045]
     35.505
Relocation within neighborhood; notice prior to move; costs and allowances. (1) A public entity undertaking urban
renewal or neighborhood development shall make all reasonable efforts to insure
that all displaced persons shall have the option to relocate within their urban
renewal or development neighborhood or area and shall not be displaced, except
temporarily as required by emergency, until appropriate residential units shall
become available to them within their neighborhood or area and within their
financial means.
     (2) Except as required by emergency, no
displaced person shall be required to move from any real property without first
having written notice from the public entity at least 90 days prior to the date
by which the move is required. In no case shall any displaced person be
required to move until the public entity notifies the person in writing of all
costs and allowances to which such person may become entitled under federal,
state or local law. [Formerly 281.055]
     35.510
Duties of public entities acquiring real property. Whenever any program or project is
undertaken by a public entity which program or project will result in the
acquisition of real property, notwithstanding any other statute, charter,
ordinance, or rule or regulation, the public entity shall:
     (1) Provide fair and reasonable relocation
payments and assistance to or for displaced persons as provided under sections
202, 203, 204 and 206 of the Federal Act;
     (2) Provide relocation assistance programs
offering to displaced persons and others occupying property immediately
adjacent to the real property acquired the services described in section 205 of
the Federal Act on the conditions prescribed therein;
     (3) In acquiring the real property, be
guided by the land acquisition policies in sections 301 and 302 of the Federal
Act;
     (4) Pay or reimburse property owners for
necessary expenses as specified in sections 303 and 304 of the Federal Act;
     (5) Share costs of providing payments and
assistance with the federal government in the manner and to the extent required
by sections 211 (a) and (b) of the Federal Act; and
     (6) Appoint such officers, enter into such
contracts, utilize federal funds for planning and providing comparable
replacement housing and take such other actions as may be necessary to comply
with the conditions and requirements of the Federal Act. [Formerly 281.060]
     35.515
Required disclosures for business and farm operations. To be eligible for the payment authorized by
ORS 35.510, a business or farm operation must make its state income tax returns
and its financial statements and accounting records available for audit for
confidential use to determine the payment authorized. [Formerly 281.070]
     35.520
Decision on benefits; hearing; review. Any person who applies for relocation benefits or assistance under ORS
35.510 shall receive the public entityÂ’s written decision on the application,
which shall include the statement of any amount awarded, the statutory basis
for the award and the statement of any finding of fact that the public entity
made in arriving at its decision. A person aggrieved by the decision shall be
entitled to a hearing substantially of the character required by ORS 183.413 to
183.470, unless federal, state or local law provides otherwise. Notice required
by ORS 183.415 must be served within 180 days of the receipt of the written
decision by the aggrieved party. The decision of the public entity shall be
reviewable pursuant to ORS 183.480. [Formerly 281.085; 2007 c.288 §5]
     35.525
Construction. Nothing in ORS
35.510, 35.515 or 35.520 shall be construed as creating in any condemnation
proceedings brought under the power of eminent domain, any element of value or
of damage not in existence immediately prior to May 7, 1971. [Formerly 281.090]
     35.530
Federal law controls. If a
public entity is receiving federal financial assistance and is thereby required
to comply with applicable federal laws and regulations relating to relocation
assistance, such federal laws and regulations shall control should there be any
conflict with ORS 35.500 to 35.530. [Formerly 281.105]
CONDEMNATION BY
STATE
     35.550
Definitions for ORS 35.550 to 35.575. As used in ORS 35.550 to 35.575:
     (1) “Property” means real property, water,
watercourses, and water and riparian rights, or any right or interest therein.
     (2) “Board” means:
     (a) The state board of commissioners,
trustees, or other state board, having direction of the state department or
institution for which the property is desired; or
     (b) The Department of State Lands, if
there is no other state board for the department or institution for which the
property is sought to be acquired. [Formerly 281.210]
     35.555
Determination of necessity; suit by Attorney General. Whenever the state requires property for any
public use, the necessity for the acquisition to be decided and declared in the
first instance by the board, if the board and the owner of such property cannot
agree upon the price to be paid for the amount of or interest in the property
required for such public use, and the damages for the taking thereof, the board
may request the Attorney General to, and the Attorney General shall when so
requested, commence and prosecute in any court of competent jurisdiction in the
name of the State of Oregon any necessary or appropriate suit, action or
proceeding for the condemnation of the amount of or interest in the property
required for such purposes and for the assessment of the damages for the taking
thereof. [Formerly 281.220]
     35.560
Action by district attorney.
The district attorney of the judicial district in which the property to be
condemned lies shall:
     (1) Commence and prosecute the suit,
action or proceeding in the circuit court of such district, when requested by
the board; or
     (2) Aid the Attorney General in so doing
in any manner requested by the Attorney General. [Formerly 281.230]
     35.565
Procedure for condemnation.
The procedure in the suit, action or proceeding referred to in ORS 35.555 or
35.560 shall be, as far as applicable, the procedure prescribed by law for the
condemnation of lands or rights of way by public corporations or quasi-public
corporations for public use or for corporate purposes. [Formerly 281.240]
     35.570
Payment of expenses of proceeding, value and damages. The expenses of the condemnation proceeding,
the value of the property, and the damages for the taking thereof, shall be
paid out of the funds provided for the department or institution for which the
property is acquired in the same manner as other expenses for like purposes of
such department or institution are paid. If no funds have been provided out of
which the same can be paid, payment shall be made out of any funds in the
treasury not otherwise appropriated, and the Oregon Department of
Administrative Services is authorized to draw a warrant on the treasurer
therefor. [Formerly 281.250]
     35.575
Precondemnation compensation not required. ORS 35.550 to 35.575 do not require the state to make or tender
compensation prior to condemning and taking possession of the lands or
property. [Formerly 281.260]
CONDEMNATION OF
PROPERTY ADJOINING PROPOSED ROADWAYS
     35.600
Application. ORS 35.600 to
35.625 apply to all condemners other than the state. [Formerly 281.505]
     35.605
Authorization to acquire adjoining property for roadways. (1) Every condemner having the right to
purchase, acquire, enter upon and appropriate land and property for
establishing, laying out, widening, enlarging or extending roads, streets or
highways, may purchase, acquire, enter upon and appropriate, in or in
connection with establishing, laying out, widening, enlarging or extending
roads, streets or highways, land and property immediately adjoining the
proposed boundaries of such roads, streets or highways.
     (2) The authority conferred by subsection
(1) of this section does not extend to the purchase, acquisition, entering upon
or appropriation of any adjoining land or property situate more than 100 feet
distant from or beyond the proposed boundaries of any such road, street or
highway, or of any such adjoining land or property that constitutes the whole
or any part of a platted lot or tract of rectangular shape and having an area
of 5,000 square feet or more and its shorter dimension not less than 50 feet in
length, or that constitutes the whole or any part of any tract of land in
common ownership of like shape and having like minimum area and dimensions. [Formerly
281.510]
     35.610
Ordinance or resolution required. Before the right to purchase, acquire, enter upon and appropriate any
adjoining land or property under ORS 35.605 is exercised by any condemner, the
governing body shall by appropriate ordinance or resolution describe the land
to be purchased, acquired, entered upon or appropriated, and shall further
determine that the appropriation of such land is reasonably necessary to
protect the full use and enjoyment by the public of the road, street or
highway. [Formerly 281.520]
     35.615
Restrictions on future use of property acquired adjacent to roadway. After an appropriation of land and property
authorized by ORS 35.605 has been made, the land and property so appropriated
adjoining the boundaries of any road, street or highway and not actually
occupied by the road, street or highway, may, by appropriate ordinance or
resolution, be declared subject to and burdened with the restrictions upon the
future use and occupation thereof that are considered necessary for protecting
the full use and enjoyment by the public of the road, street or highway. Such
land and property may thereafter be sold by the condemner subject to the
declared restrictions and the proceeds of the sale applied and accounted for as
may be provided by the charter, charter ordinances or ordinances of, or law
governing the condemner. The deed or other conveyance of such land and property
shall contain the restrictions and all such land and property shall be sold,
burdened with and subject to the restrictions. [Formerly 281.530]
     35.620
Acquisition of land adjoining road boundaries declared necessary. The purchase, acquisition, entering upon and
appropriation of lands and property immediately adjoining the boundaries of
roads, streets or highways, as defined and limited in, and to the extent
authorized by, ORS 35.600 to 35.625 is declared to be necessary for the
development and welfare of the state and its inhabitants and to be a public
use. [Formerly 281.540]
     35.625
Procedure to ascertain compensation and damages. If private property is appropriated for the
public use as authorized by ORS 35.605, and the compensation and damages
arising from the appropriation cannot be agreed upon, the appropriation shall
be made and the compensation and damages shall be considered, ascertained,
determined, awarded and paid in the manner provided by this chapter. [Formerly
281.550]
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