Chapter 1
AN ACT
SECTION 1. Section 2 of this 2006 Act is added to and made a
part of ORS Chapter 35.
SECTION 2. (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.
SECTION 3. If any portion or portions of this 2006 Act are
declared invalid by a court of competent jurisdiction, the remaining portions
of this 2006 Act shall remain in full force and effect.
SECTION 4. ORS 35.346 is amended as follows (matter in boldfaced
type is new; matter [italic and bracketed]
is existing law to be omitted):
(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 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.
(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 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 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 [highest] initial written offer in
settlement submitted by condemner to those defendants appearing in the action [at least 30 days prior to commencement of
said trial] 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) 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.
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The Act set forth above
(Ballot Measure No. 39) was proposed by initiative petition and was approved by
the voters at the regular general election on November 7, 2006. By proclamation
of the Governor dated December 7, 2006, the Act was declared to have received
an Approved by the Governor affirmative majority of the total number of votes
cast thereon and to be in full force and effect as provided in section 1,
Article IV, Oregon Constitution (i.e., on December 7, 2006).
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NOTE:. The Legislative Counsel Committee has not
adjusted the format Effective date of the text that was proposed by initiative
petition and approved by the voters.
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