Chapter 477 Oregon Laws 2003

AN ACT

HB 3372

Relating to precondemnation access to land; creating new provisions; and amending ORS 223.010, 276.244, 366.365, 526.178, 545.239, 547.305, 552.315, 772.210, 772.410, 772.510 and 836.045.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Section 2 of this 2003 Act is added to and made a part of ORS chapter 35.

SECTION 2. (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 condemner’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 property’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.

SECTION 3. Section 2 of this 2003 Act applies only to the entry upon or examination, survey, testing or sampling of the property by a condemner that occurs on or after the effective date of this 2003 Act.

SECTION 4. ORS 223.010 is amended to read:

223.010. For the purposes of ORS 223.005, a city may enter upon, survey[,] and examine property in the manner provided by section 2 of this 2003 Act and may select any such property or rights for the purpose of constructing any ditch, drain, dam, dike, canal, flume, sewer, reservoir, septic tank, filter bed, sewer form or purifying plant or laying or constructing and maintaining any pipe, sewer, drain, aqueduct, dam, dike, canal, flume, reservoir, septic tank, filter bed, sewer form or purifying plant or other plant, building or electric lines or system for municipal uses, including but not limited to, aviation fields, parks, city hall, city buildings, jails, docks, piers, slips, shore and terminal structures.

SECTION 5. ORS 366.365 is amended to read:

366.365. The Department of Transportation may go upon private property [for the purpose of examination, inspection or survey] in the manner provided by section 2 of this 2003 Act to determine the advisability or practicability of locating and constructing a highway thereover[,] or the source, suitability or availability of road-building materials thereon. [The department may exercise this authority prior to the filing or commencement of condemnation proceedings, but in the exercise of such authority no damage shall be done the property nor shall the owner be unnecessarily inconvenienced or disturbed in the use and enjoyment of the property of the owner.]

SECTION 6. ORS 526.178 is amended to read:

526.178. The State Board of Forestry, or any duly authorized representative of the board, may go upon private property [for the purposes of examination, inspection or survey] in the manner provided by section 2 of this 2003 Act to determine the advisability or practicability of acquiring real property[,] or any interest in real property. [The board may exercise this authority prior to the filing or commencement of condemnation proceedings, but in the exercise of such authority the owner shall not be unnecessarily inconvenienced or disturbed in the use and enjoyment of the property of the owner.]

SECTION 7. ORS 545.239 is amended to read:

545.239. (1) The board of directors and its agents and employees have the right to enter upon any land in the manner provided by section 2 of this 2003 Act to make surveys[,] and may locate the necessary irrigation or drainage works and the line for any canals and the necessary branches for the works or canals on any lands [which] that may be considered best for such location. The board also has the right to acquire, by lease, purchase, condemnation or other legal means, all lands, water, water rights, rights of way, easements and other property, including canals and works and the whole of irrigation systems or projects constructed or being constructed by private owners, necessary for the construction, use, supply, maintenance, repair and improvement of any canals and works proposed to be constructed by the board. The board also has the right to so acquire lands, and all necessary appurtenances, for reservoirs, and the right to store water in constructed reservoirs, for the storage of needful waters, or for any other purpose reasonably necessary for the purposes of the district.

(2) In the acquisition of property under subsection (1) of this section, the district has the right to acquire by condemnation property already devoted to public use [which] that is less necessary than the use for which it is required by the district, whether used for irrigation or any other purpose, and any other properties owned by the state or any of its departments or commissions. In the acquisition of property or rights by condemnation, the board shall proceed in the name of the district under the provisions of the laws of Oregon.

SECTION 8. ORS 547.305 is amended to read:

547.305. (1) The officers and employees of any drainage district shall have the right to:

(a) Enter upon any land [to make surveys] in the manner provided by section 2 of this 2003 Act.

(b) Locate the necessary drainage or irrigation works and the necessary branches for the same, on any lands [which] that may be deemed best for such location.

(c) Acquire, either by lease, purchase, condemnation or other legal means, all lands, rights of way, easements and other property necessary for the construction, operation or maintenance of any drainage or irrigation works, including the enlargement, improvement or extension of any natural or artificial waterway for such purposes.

(d) Make all necessary water filings or appropriation of water under the general laws of Oregon for irrigation of lands within such district.

(2) The property, the right to condemn which is hereby given, shall include property already devoted to public use [which] that is less necessary than the use for which it is required by the district, whether used for drainage, irrigation or any other purpose. The right of way is hereby given, dedicated and set apart to locate, construct and maintain such drainage or irrigation works over and through any of the lands [which] that are now or may be the property of this state.

(3) In the acquisition of property or rights by condemnation, proceedings under the provisions of this section shall be brought in the name of the district under the provisions of [the laws of Oregon] ORS chapter 35.

SECTION 9. ORS 552.315 is amended to read:

552.315. The district board, its officers, agents or employees shall have the right to enter upon any land in the manner provided by section 2 of this 2003 Act to make surveys for the purposes of the district[, upon giving the owners of the land notice reasonably in advance of any survey].

SECTION 10. ORS 772.210 is amended to read:

772.210. (1) Any public utility, electrical cooperative association or transmission company may:

(a) Enter upon lands within this state in the manner provided by section 2 of this 2003 Act for the purpose of examining, locating and surveying the line thereof and also other lands necessary and convenient for the purpose of construction of service facilities, doing no unnecessary damage thereby.

(b) Condemn such lands not exceeding 100 feet in width for its lines (including poles, towers, wires, supports and necessary equipment therefor) and in addition thereto, other lands necessary and convenient for the purpose of construction of service facilities[; and]. If the lands are covered by trees [which] that are liable to fall and constitute a hazard to its wire or line, any public utility or transmission company organized for the purpose of building, maintaining and operating a line of poles and wires for the transmission of electricity for lighting or power purposes[,] may condemn such trees for a width not exceeding 300 feet, as may be necessary or convenient for such purpose.

(2) Notwithstanding subsection (1) of this section, any public utility, electrical cooperative association or transmission company may, when necessary or convenient for transmission lines (including poles, towers, wires, supports and necessary equipment therefor) designed for voltages in excess of 330,000 volts, condemn land not to exceed 300 feet in width. In addition, if the lands are covered by trees [which] that are liable to fall and constitute a hazard to its wire or line, such public utility or transmission company may condemn such trees for a width not exceeding 100 feet on either side of the condemned land, as may be necessary or convenient for such purpose.

(3) Notwithstanding subsection (1) of this section, a water or gas public utility may condemn such lands, not exceeding 50 feet in width, as may be necessary or convenient for purposes of constructing, laying, maintaining and operating its lines, including necessary equipment therefor.

(4) The proceedings for the condemnation of such lands shall be the same as that provided in ORS chapter 35, provided that any award shall include, but shall not be limited to, damages for destruction of forest growth, premature cutting of timber[,] and diminution in value to remaining timber caused by increased harvesting costs.

SECTION 11. ORS 772.410 is amended to read:

772.410. Any corporation organized for the purpose of opening or operating any gold, silver, or copper vein or lode, or any coal or other mine, or any marble, stone or other quarry, or for cutting or transporting timber, lumber, or cordwood, or for the manufacture of lumber:

(1) May construct and operate railroads, skid roads, tramways, chutes, pipelines and flumes between such points as may be indicated in their articles of incorporation.

(2) May enter upon any land between such points in the manner provided by section 2 of this 2003 Act for the purpose of examining, locating and surveying the line of such railroads, skid roads, tramways, chutes, pipelines and flumes, doing no unnecessary damage thereby.

(3) May condemn so much of said land as may be necessary for the purposes of this section, not exceeding 60 feet in width by a condemnation action as prescribed by ORS chapter 35.

SECTION 12. ORS 772.510 is amended to read:

772.510. (1) Any pipeline company [which] that is a common carrier and [which] that is regulated as to its rates or practices by the United States or any agency thereof, may enter in the manner provided by section 2 of this 2003 Act upon lands within this state outside the boundaries of incorporated cities.

(2) This right may be exercised for the purpose of examining, surveying and locating a route for any pipeline, but it shall not be done so as to create unnecessary damage.

(3) These pipeline companies may appropriate and condemn such lands, or easements thereon or thereover, in such width as is reasonably necessary to accomplish their pipeline company purposes, by proceedings for condemnation as prescribed by ORS chapter 35.

SECTION 13. ORS 836.045 is amended to read:

836.045. In the condemnation of property authorized by ORS 836.025, the Oregon Department of Aviation as authorized by the State Aviation Board shall proceed in the name of the state in the manner provided by ORS chapter 35. For the purpose of making surveys and examinations relative to any condemnation proceedings, it shall be lawful to enter upon any land in the manner provided by section 2 of this 2003 Act, doing no unnecessary damage. Notwithstanding the provisions of any other statute, or the charter of any municipality, the department may take possession of any property to be condemned at any time after the commencement of the condemnation proceedings. The department shall not be precluded from abandoning the condemnation of any such property in any case where possession thereof has not been taken.

SECTION 14. ORS 276.244 is amended to read:

276.244. The Oregon Department of Administrative Services may:

(1) Go upon lands or premises in the manner provided by section 2 of this 2003 Act to make surveys and to make estimates of cost.

(2) From time to time, purchase, lease, contract for or condemn any property, land, water or water rights, franchises and privileges.

(3) Construct canals, flumes, ditches and pipelines for conveying waters and reservoirs for the storage of waters.

(4) Repair, improve and enlarge any plants, property or property rights, ditches, flumes and pipelines which may be acquired or constructed under the authority conferred by ORS 276.234 to 276.244.

(5) Use such measures and employ such persons as, in the opinion of the department, may be proper and suitable to carry out the provisions of ORS 276.234 to 276.244.

Approved by the Governor June 24, 2003

Filed in the office of Secretary of State June 24, 2003

Effective date January 1, 2004

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