72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
House Bill 3371
Sponsored by COMMITTEE ON JUDICIARY (at the request of Oregon Law
Commission)
CHAPTER ................
AN ACT
Relating to initial offers in eminent domain proceedings;
creating new provisions; and amending ORS 35.346 and 35.348.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 35.346 is amended to read:
35.346. (1) At least { - 20 - } { + 40 + } days { - prior
to - } { + before + } the filing of any action for condemnation
of property or any interest
{ - therein - } { + in property + }, the condemner shall make
{ - a - } { + 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 days' written notice to the owner of the planned
appraisal inspection. The property owner and designated
representative, if any, shall be invited to accompany the
condemner's appraiser on any inspection of the property for
appraisal purposes.
Enrolled House Bill 3371 (HB 3371-INTRO) Page 1
(4) The owner { - shall have - } { + has + } not less than
40 days from the date { - of receipt of - } { + the owner
receives + } the initial written offer
{ - and the accompanying appraisal from the condemner - } { +
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 condemner's offer and obtains a separate appraisal,
the owner shall provide the condemner with a copy of the owner'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 amounts 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 exceptions to the
award with the court. Exceptions to the award may only be for one
or more of the reasons specified in ORS 36.355. The court shall
rule on the exceptions as provided in ORS 36.360 and any appeal
from the court's judgment on the exceptions shall be as provided
in ORS 36.365. 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 highest written offer in settlement
submitted by condemner to those defendants appearing in the
action at least 30 days prior to commencement of said trial; 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.
Enrolled House Bill 3371 (HB 3371-INTRO) Page 2
(8) 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.
SECTION 2. { + The amendments to ORS 35.346 by section 1 of
this 2003 Act apply only to actions for condemnation filed on or
after the effective date of this 2003 Act. + }
SECTION 3. ORS 35.348 is amended to read:
35.348. { - Notwithstanding the time limits in ORS 35.346
(4), in cases where a road authority, as defined in ORS 801.445,
determines that an emergency exists that requires immediate
maintenance, repair, construction or other road work related to
the emergency, the authority may assume rejection by the
landowner of a compensation offer made under ORS 35.346. - }
{ + 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). + }
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Passed by House April 9, 2003
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 5, 2003
...........................................................
President of Senate
Enrolled House Bill 3371 (HB 3371-INTRO) Page 3
Received by Governor:
......M.,............., 2003
Approved:
......M.,............., 2003
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2003
...........................................................
Secretary of State
Enrolled House Bill 3371 (HB 3371-INTRO) Page 4