70th OREGON LEGISLATIVE ASSEMBLY--1999 Regular Session
SA to SB 1125
LC 4016/SB 1125-2
SENATE AMENDMENTS TO
SENATE BILL 1125
By COMMITTEE ON JUDICIARY
June 1
On page 1 of the printed bill, delete lines 4 through 27 and
delete pages 2 and 3 and insert:
' { + SECTION 1. + } ORS 35.346 is amended to read:
' 35.346. { - (1) At least 20 days prior to the filing of any
action for condemnation of property or any interest therein, the
condemner shall make 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. - }
' { + (1) Unless otherwise agreed to by the condemner and the
owner, before appraising the property the condemner shall provide
not less than 15 days' written notice to the owner of the planned
appraisal inspection. The owner or a representative designated by
the owner shall be invited by the condemner to accompany the
condemner's appraiser on any inspection of the property for
appraisal purposes. + }
' (2) { + A written preliminary offer shall be made by the
condemner. + } The offer shall be accompanied by { - any - }
{ + all + } written
{ - appraisal - } { + appraisals of the property obtained by
or on behalf of the condemner that the condemner has acquired as
of the date that the preliminary offer is made, and the
condemner's appraisal review + } { - 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 - } { + $25,000 + }, 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 shall have not less than 40 days from the
date of receipt of the initial written offer and the accompanying
appraisal from the condemner 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. - }
' { + (3) A preliminary offer must contain a deadline for
accepting the offer. The deadline must be no sooner than 40 days
after the date the offer and appraisal information is delivered
as required by subsection (2) of this section.
' (4) After the expiration of the time allowed to accept a
preliminary offer, or upon rejection of the offer, the condemner
must make a final written prefiling offer. The offer must be made
at least 20 days before the filing of any complaint for
condemnation of the property. The offer must include all
appraisals acquired after the preliminary offer was made under
subsection (2) of this section and any appraisal review prepared
after the preliminary offer was made.
' (5)(a) On the 60th day before the first date set for trial or
arbitration of the matter, or within seven days thereafter, the
owner must serve on the condemner all appraisals that the owner
has on the date of service and that were acquired by the owner
after the date on which the owner was first notified that the
condemner would seek to acquire the property.
' (b) On the 60th day before the first date set for trial or
arbitration of the matter, or within seven days thereafter, the
condemner must serve on the owner all appraisals that the
condemner has on the date of service and that were acquired by
the condemner after the final prefiling offer was made under
subsection (4) of this section.
' (6)(a) Except as provided in paragraph (b) of this
subsection, failure to provide the opposing party with a copy of
all the appropriate appraisals as provided in subsection (2), (4)
or (5) of this section shall prohibit the use of the appraisals
in arbitration or at trial.
' (b) An owner who fails to provide all appraisals as required
by subsection (5) of this section may introduce the appraisals at
trial or arbitration if the amount claimed by the owner does not
exceed the condemner's final prefiling offer by more than $15,000
and the final prefiling offer of the condemner is less than
$25,000.
' (7) Any appraisal acquired by a condemner or owner after the
disclosure required by subsection (5) of this section must be
disclosed to the other party before the appraisal is introduced
at trial or arbitration. Disclosure under this section shall be
at such time as agreed by the parties or as set by the court or
arbitrator. + }
' { - (6)(a) - } { + (8)(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 - } { + $30,000 + }. 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 - } { + within the time established
by the rules adopted by the Chief Justice of the Supreme Court
for conduct of trial courts of this state + }.
' (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 - } { + $30,000 + } but is less than
{ - $50,000 - } { + $60,000 + }, the owner may elect to have
compensation determined by nonbinding arbitration under the
applicable provisions of ORS 36.400 to 36.425.
' { + (9)(a) After a final prefiling offer is made under
subsection (4) of this section, the condemner may not thereafter
reduce the amount of the offer except upon a finding of the court
under paragraph (c) of this subsection.
' (b) After an action for condemnation is commenced, or an
amount is deposited with the court by the condemner for the use
and benefit of the owner pending entry of judgment, the amount
pleaded or deposited may not be reduced except upon a finding of
the court under paragraph (c) of this subsection.
' (c) The court may allow a reduction of a final prefiling
offer, or allow reduction of the amount pled or deposited in an
action for condemnation, only upon a motion by the condemner
filed at least 60 days before the trial of the action. The court
may grant the motion only if the court finds by clear and
convincing evidence that the appraisal upon which the offer,
pleading or deposition was based was the result of a mistake of
law or a mistake of material fact that was not known and could
not reasonably have been known at the time of the offer, pleading
or deposit. + }
' { - (7) - } { + (10) + } 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 - } { + 60 + } days prior to
commencement of said trial; or
' (b) If the court finds that the { - first written - } { +
preliminary + } offer made by condemner to defendant { - in
settlement prior to filing of the action - } { + under
subsection (2) of this section + } did not constitute a good
faith offer of an amount reasonably believed by condemner to be
just compensation.
' { - (8) - } { + (11) + } 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) - } { + (10) + } of this section.
' { + SECTION 2. + } { + The amendments to ORS 35.346 by
section 1 of this 1999 Act apply only to actions for condemnation
commenced on or after the effective date of this 1999 Act. + }
' { + SECTION 3. + } ORS 35.348 is amended to read:
' 35.348. Notwithstanding the time limits in ORS 35.346
{ + (3) and + } (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.'.
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