70th OREGON LEGISLATIVE ASSEMBLY--1999 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 4016

                        Senate Bill 1125

Sponsored by COMMITTEE ON JUDICIARY (at the request of Don Palmer
  and John Junkin)


                             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 as
introduced.

  Modifies procedures relating to condemnation. Requires that
condemner make offer 40 days before commencing action instead of
20 days before commencing action. Allows earlier commencement of
action upon showing of emergency.
  Requires that at time of making offer condemner provide copy of
any written appraisal obtained in contemplation of acquiring
property or interest.
  Removes prohibition on condemner reducing pretrial offer.
  Establishes procedure for exchange of appraisals acquired after
commencement of trial.
  Provides that except for pretrial offer, any offer in
settlement made by condemner must be subject to acceptance at any
time before trial or arbitration.

                        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   { - 20 - }  { +  40 + } 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.  { + The action may be
commenced in less than 40 days after a written offer is made
under this subsection upon a showing that an emergency exists. If
a complaint is filed less than 40 days after a written offer is
made under this subsection, the condemner must file with the
complaint an affidavit setting forth the nature of the
emergency. + }
  (2) The offer shall be accompanied by any written appraisal
upon which the condemner relied in establishing the amount of
compensation offered { + , and any other written appraisal
obtained in contemplation of acquiring the property or
interest + }. 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 shall have not less than 40 days from the date of
receipt of the initial written offer and   { - the - }
 { + any + } 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 - }   { + an + } appraisal as
 { - provided in subsections - }  { +  required in subsection + }
(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.
 { + Copies of appraisals obtained by the condemner must be
provided to the other parties not less than ___ days before the
date scheduled for the trial or arbitration hearing. Copies of
appraisals obtained by parties other than the condemner must be
provided to the condemner not less than ___ days before the date
scheduled for the trial or arbitration hearing. Any appraisal not
provided in the manner required by this paragraph may not be
introduced at the trial or arbitration hearing. + }
  (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  { + or by the arbitration award + } 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.
   { +  (8) Except as provided in subsection (4) of this section,
any offer in settlement under this section made by a condemner
must be subject to acceptance at any time before trial or
arbitration of the matter commences. + }
    { - (8) - }  { +  (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.  { + 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 - }
 { + limit + } 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.
                         ----------