75th OREGON LEGISLATIVE ASSEMBLY--2009 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 2280
 
                           A-Engrossed
 
                         Senate Bill 794
                 Ordered by the Senate April 30
           Including Senate Amendments dated April 30
 
Sponsored by COMMITTEE ON JUDICIARY
 
 
                             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.
 
  Provides that defendant in condemnation action may not recover
attorney fees from condemner unless amount of just compensation
assessed by verdict exceeds highest written settlement offer
submitted by condemner before filing of action.
  Allows condemner to make offer of compromise to defendant in
condemnation action after filing of action and not less than 10
days before trial.  { + Requires court, if defendant accepts
offer and if offer does not specifically indicate otherwise, to
give judgment to defendant for amount of costs and disbursements,
attorney fees and other costs incurred before offer. + } Provides
that { + , + } if defendant rejects offer and fails to obtain
judgment more favorable than offer, defendant may not recover
costs, prevailing party fees, disbursements or attorney fees that
were incurred { +  on or + } after date of offer,  { + that
defendant shall recover costs and disbursements, attorney fees
and expenses incurred before date of offer, + } and that
condemner   { - may - }   { + shall + } recover costs and
disbursements incurred by condemner after service of offer.
 
                        A BILL FOR AN ACT
Relating to condemnation; 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 40 days before the filing of any action
for condemnation of property or any interest in property, the
condemner shall make   { - an initial - }  { +  a + } 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 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 - }
 { +  the + } 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 - }  { +  highest + }
written offer in settlement submitted by condemner  { + before
the filing of the action + } 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 - }
 { + before the + } 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.
  SECTION 2. ORS 35.348 is amended to read:
  35.348. 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 - }   { + the + } written
offer  { + required + } under ORS 35.346 (1) accompanied by the
appraisal or explanation required by ORS 35.346 (2).
  SECTION 3.  { + The amendments to ORS 35.346 and 35.348 by
sections 1 and 2 of this 2009 Act apply only to condemnation
actions filed on or after the effective date of this 2009
Act. + }
  SECTION 4.  { + Section 5 of this 2009 Act is added to and made
a part of ORS chapter 35. + }
  SECTION 5.  { + (1) After the filing of a condemnation action,
a condemner may make an offer of compromise to the defendant in a
condemnation action after the filing of the action. An offer of
compromise must be made under this section not later than 10 days
before the trial of the action. The offer of compromise must
indicate whether the offer includes any amount for expenses,
attorney fees or other costs and, if so, the amounts included for
expenses, attorney fees and other costs. If the defendant accepts
the offer, the defendant shall file with the court an acceptance
signed by the defendant or the defendant's attorney. The
acceptance must be filed not more than three days after the time
the offer was served on the defendant. A copy of the offer and a
judgment document incorporating the terms of the offer must be
attached to the acceptance.
  (2) Unless an offer of compromise under this section
specifically includes amounts for expenses, attorney fees and
other costs, upon acceptance of the offer the court shall give
judgment to the defendant for the amount of the offer and, in
addition, for the costs and disbursements, attorney fees and
expenses as defined in ORS 35.335 that are determined by the
court to have been incurred before the date of the offer.
  (3) If an offer of compromise is not accepted within the time
allowed by subsection (1) of this section, the offer is withdrawn
and may not be given in evidence at trial. If the defendant fails
to obtain a judgment more favorable than the offer:
  (a) The defendant may not recover prevailing party fees or
costs and disbursements, attorney fees or expenses as defined in
ORS 35.335 that were incurred on or after the date of the offer;
  (b) Unless the parties agree otherwise, the court shall give
judgment to the defendant for costs and disbursements, attorney
fees and expenses as defined in ORS 35.335 that were incurred
before the date of the offer; and
  (c) The court shall give judgment to the condemner for the
condemner's costs and disbursements, other than prevailing party
fees, incurred by the condemner after service of the offer.
  (4) For the purpose of determining whether the defendant has
failed to obtain a judgment more favorable than an offer of
compromise under this section, the court shall disregard all
amounts identified in the offer as expenses, attorney fees or
other costs. + }
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