71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2448
Senate Bill 525
Sponsored by Senator MESSERLE; Representatives KRIEGER, VERGER
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Adds agent of landowner or lawful occupant of land to persons
that may be liable for natural or human-made road hazard created
by water flowing from land onto county road.
A BILL FOR AN ACT
Relating to road hazards; amending ORS 368.251, 368.256, 368.261,
368.266, 368.271 and 368.276.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 368.251 is amended to read:
368.251. { - No - } { + A + } person { - shall - } { +
may not + } stop, obstruct or in any other manner impair or
damage { - any - } { + a + } drain, ditch or other
{ - man-made - } { + human-made + } or natural waterway that:
(1) Prevents water from causing damage to, flowing across or
standing on a public road under county jurisdiction; or
(2) Benefits a public road under county jurisdiction.
SECTION 2. ORS 368.256 is amended to read:
368.256. (1) Except as authorized by the county governing body,
an owner { + , + } { - or - } { + a + } lawful occupant of
land { - shall - } { + + } { + or an agent of either
may + } not allow:
(a) { - Any - } Water to overflow, seep or otherwise
discharge from that land onto a public road under county
jurisdiction including, but not limited to, water that is passing
over the land, diverted from the land by an obstruction on the
land, flowing from the land because of rainfall or discharged
from an irrigation sprinkler or other device.
(b) { - Any - } { + A + } structure, tree, drainage way,
soil deposit or other natural or { - man-made - } { +
human-made + } thing on that land to present a danger to or
create a hazard for the public traveling on a public road or
facilities within the right of way of the public road by
obstructing, hanging over or otherwise encroaching or threatening
to encroach in any manner on a public road that is under county
jurisdiction.
(2) A person is not in violation of this section if there is no
reasonable method for the person to control, stop or remove the
cause of the violation.
SECTION 3. ORS 368.261 is amended to read:
368.261. (1) A county road official may order a person
{ - who - } { + that + } is in violation of ORS 368.256 to
remove { - , - } { + or + } divert { + the water + } or
otherwise discontinue the violation.
(2) An order issued under this section shall:
(a) Describe the nature and location of the violation;
(b) Direct the { + responsible + } person { + or persons + }
to abate the violation within a specified period of time;
(c) Explain procedures the county road official may follow if
the violation creates an emergency; and
(d) Explain that a hearing will be held under ORS 368.266 if
the violation is not abated.
(3) If a violation of ORS 368.256 is not abated within the time
allowed by the order issued under this section, the county
governing body shall hold a hearing described in ORS 368.266.
SECTION 4. ORS 368.266 is amended to read:
368.266. (1) If a hearing is required under ORS 368.261, the
county road official shall establish a place, date and time for
the hearing. The hearing will be held if the violation is not
abated before the date of the hearing. Notice provided under this
section shall include the date and time set for the hearing.
(2) The order described under ORS 368.261 shall be included as
part of the notice of hearing under this section. Notice of
hearing under this section shall be given by service under ORS
368.401 to 368.426 to:
(a) The { - owner - } { + owners + } of the land that is
the source of the violation; { - and - }
(b) { - Any Persons lawfully occupying - } { + Lawful
occupants of + } that land during the time of the violation if
the county road official has reason to know of the
occupancy { + ; and
(c) An agent of the owners or lawful occupants, if any,
suspected by the county road official to have been involved in
creating the road hazard + }.
(3) At the hearing the county governing body shall determine
the person responsible for violation of ORS 368.256 and shall
order that person to abate the violation within a time fixed by
the county governing body, which time { - shall - }
{ + may + } not be less than 10 days.
SECTION 5. ORS 368.271 is amended to read:
368.271. (1) A county road official may abate a violation of
ORS 368.256 at any time if any of the following occur:
(a) If the period of time established for abatement of the
violation under ORS 368.266 passes and the person ordered to
abate the violation has not done so within that time.
(b) If a reasonable attempt to provide service under ORS
368.266 has been made and { - no - } { + the + }
owner { + , + } { - or - } { + the + }lawful occupant of the
{ - property - } { + land or the agent of either + } has
{ + not + } been located and served.
(c) If the county road official determines that the violation
creates a substantial risk of damage, injury or other emergency
condition that requires abatement without delay and without
notice or hearing. A county road official is not required to
comply with ORS 368.261 and 368.266 when the county road official
abates a violation under this paragraph.
(2) A county road official may take any reasonable actions
under this section to abate the violation of ORS 368.256.
(3) A county and its officers, agents and employees are exempt
from liability for any reasonable acts performed under this
section, including, but not limited to, any reasonable trespass
or conversion of personal property.
(4) If a county road official performs any acts under this
section, the county road official shall file a written report
with the county governing body. The report shall contain:
(a) An explanation of the acts performed;
(b) The reasons for performing the acts described;
(c) The costs incurred in abating the violation; and
(d) Any other information required by the county governing
body.
SECTION 6. ORS 368.276 is amended to read:
368.276. (1) Upon receipt of a report under ORS 368.271, a
county governing body shall establish a time, place and date for
a hearing to assess costs for acts performed under ORS 368.271
and to determine persons liable for payment of those costs.
(2) Notice of the hearing shall be provided by service under
ORS 368.401 to 368.426 to:
(a) The person determined under ORS 368.266 to be in violation
of ORS 368.256; or
(b) If no determination of violation has been made under ORS
368.266, the owner of the land that is the source of the
violation { + , + } { - and to any persons - } { + a
person + } lawfully occupying that land during the time of the
violation { + and the agent of either that performed work
suspected to have caused the hazard + }.
(3) After consideration of matters presented at the hearing,
the county governing body shall issue an order:
(a) Establishing costs to be paid; and
(b) Directing the person the county governing body determines
to be responsible for payment of the costs to pay the costs
within the time established by the county governing body, which
time shall not be less than 60 days.
(4) If the county governing body cannot establish
responsibility for payment of costs under this section, the owner
of the { - property - } { + land + } that is the source of
the violation of ORS 368.256 shall be responsible for payment
unless the owner can establish that there was no reasonable
method for the owner to control, stop or remove the cause of the
violation.
(5) The county governing body shall provide for notice of the
results of the hearing to persons ordered to pay costs by service
under ORS 368.401 to 368.426. Any person who does not pay costs
as directed by an order under this section is liable for those
costs.
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