Chapter 35

NOTES OF DECISIONS

Replacement value of property should not be considered unless property is unique or unless property taken performs legally necessary function. State Bd. of Higher Educ. v. First Methodist Church, 6 Or App 492, 488 P2d 835 (1971)

Occupation of land by condemner during eminent domain proceedings does not constitute waiver by condemner of its right to abandon such proceedings. Port of Newport v. Haydon, 10 Or App 271, 498 P2d 825 (1972)

Organization of property owners adjoining automobile raceway did not show in challenging city’s grant of noise ordinance variance to raceway that it utilized eminent domain procedures established by state law. Citizen’s Ass’n. of Portland v. Intern. Raceways, 833 F2d 763 (1987)

LAW REVIEW CITATIONS: 8 WLJ 261-268 (1972); 85 OLR 1063 (2006)

35.235

NOTES OF DECISIONS

The condemner is mandated to negotiate with an owner prior to commencing an action. State Hwy. Comm. v. Freeman, 11 Or App 513, 504 P2d 133 (1972)

Across-the-fence method of appraisal was properly admitted as evidence in condemnation case as trial court has wide discretion in ruling on admissibility of evidence and any competent evidence tending to affect market value which would be considered by a purchaser or seller is admissible. Dept. of Trans. v. Southern Pacific Trans. Co., 89 Or App 344, 749 P2d 1233 (1988), Sup Ct review denied

Where provision in this section that public condemner’s taking resolution is presumptive evidence use will be compatible with greatest public good and least private injury, court is empowered to determine whether economic impact of taking is such that taking is abuse of discretion by condemner. Emerald PUD v. Pacificorp, 100 Or App 79, 784 P2d 1112 (1990), Sup Ct review denied, on reconsideration 101 Or App 48, 788 P2d 1034 (1990)

This section does not violate Article XI, section 12 of Oregon Constitution. Emerald PUD v. Pacificorp, 100 Or App 79, 784 P2d 1112 (1990), Sup Ct review denied, on reconsideration 101 Or App 48, 788 P2d 1034 (1990)

That resolution or ordinance of condemner is “presumptive evidence” means determination is presumed valid in absence of fraud, bad faith or abuse of discretion. Wiard Memorial Park District v. Wiard Community Pool, 183 Or App 448, 52 P3d 1080 (2002), Sup Ct review denied

35.245

NOTES OF DECISIONS

The circuit court had jurisdiction to rule on a petition for participation in attorney fees, where the parties claiming those fees were all defendants in the condemnation proceeding. State ex rel Hwy. Comm. v. Chaparral Recreation Assn., 17 Or App 416, 522 P2d 236 (1974)

35.265

NOTES OF DECISIONS

Public condemner is not entitled to interest on amount to be repaid by condemnee due to reduced judgment or condemner abandonment. City of Silverton v. Porter, 28 Or App 415, 559 P2d 1297 (1977)

35.275

NOTES OF DECISIONS

Defendant-condemnee could not object to absence of notice provision under this section where it had actual notice of immediate occupancy proceeding. NW Natural Gas v. Georgia Pacific, 53 Or App 89, 630 P2d 1326 (1981), Sup Ct review denied

35.285

NOTES OF DECISIONS

The circuit court had jurisdiction to rule on a petition for participation in attorney fees, where the parties claiming those fees were all defendants in the condemnation proceeding. State ex rel Hwy. Comm. v. Chaparral Recreation Assn., 17 Or App 416, 522 P2d 236 (1974)

35.295

NOTES OF DECISIONS

If defendant does not plead special or consequential issues in answer, there is no such issue in a proceeding under this chapter. Clackamas County Serv. Dist. v. Smith, 15 Or App 421, 515 P2d 1343 (1973), Sup Ct review denied

Defendants in condemnation action may assert counterclaim. State ex rel Nagel v. Crookham, 297 Or 20, 680 P2d 652 (1984)

35.305

NOTES OF DECISIONS

Market value is recognized measure of compensation. State Bd. of Higher Educ. v. First Methodist Church, 6 Or App 492, 488 P2d 835 (1971)

When economic feasibility study with particular reference to property involved was not conducted, expert opinion, based on income approach to valuation of commercial property, was inadmissible as too speculative. State Hwy. Comm. v. Compton, 265 Or 339, 507 P2d 13 (1973)

35.325

LAW REVIEW CITATIONS: 85 OLR 1063 (2006)

35.335

NOTES OF DECISIONS

Under former similar statute (ORS 35.105)

Occupation of land by condemner during eminent domain proceedings did not constitute waiver by condemner of its right to abandon such proceedings. Port of Newport v. Haydon, 10 Or App 271, 498 P2d 825 (1972)

In general

Recovery of attorney fees is proper when case is dismissed on defendant?s motion. Braat v. Andrews, 266 Or 537, 514 P2d 540 (1973)

“Dismissed” includes voluntary and involuntary dismissal. Braat v. Andrews, 266 Or 537, 514 P2d 540 (1973)

35.346

See also annotations under ORS 35.345 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 366.380)

For the purposes of this section, informal “offer” and official “tender” were identical. State Hwy. Comm. v. Freeman, 11 Or App 513, 504 P2d 133 (1972)

In general

In an action at law, the trial court’s findings as to attorney fees, if based on the Newburn standards may be set aside only if they are not supported by any substantial, competent evidence. Urban Renewal v. Starr Foods, Inc., 16 Or App 475, 519 P2d 101 (1974)

Interest from the day of judgment runs against the state on a judgment for attorney fees under this section. State Hwy. Comm. v. Carmel Estates, Inc., 18 Or App 235, 525 P2d 61 (1974), Sup Ct review denied

It is not necessary for defendant to plead right to recover attorney fees under this section. State ex rel Dept. of Transp. v. Stafford, 34 Or App 983, 580 P2d 574 (1978)

Notwithstanding that city failed to make written offer prior to filing complaint, condemnees were not entitled to award of attorney fees where jury award did not exceed lump-sum offer made to condemnees. Urban Renewal Agency of Salem v. Caughell, 35 Or App 145, 581 P2d 98 (1978)

Where county’s final compensation offer for land taken was $6,000 and jury verdict was $5,730, landowner was not entitled to recover attorney fees and reasonable expenses under this section. Douglas County v. Brown, 42 Or App 527, 600 P2d 945 (1979)

Where state’s highest settlement offer was greater than value of property but less than value plus interest, condemnee was entitled to attorney fees and costs. State ex rel Dept. of Trans. v. Glenn, 288 Or 17, 602 P2d 253 (1979)

Same offer may serve as written offer to owner at least 20 days prior to filing of action and as highest written offer in settlement to defendant. Department of Transportation v. Kesterson, 182 Or App 105, 47 P3d 546 (2002), Sup Ct review denied

Offer need not be available at time of trial to qualify as highest written offer in settlement made to defendant at least 30 days prior to commencement of trial. Department of Transportation v. Kesterson, 182 Or App 105, 47 P3d 546 (2002), Sup Ct review denied

“Appraisal” means opinion of value that: 1) is completed and issued; 2) complies with applicable administrative rules regulating activities of appraisers; and 3) is made by person certified or licensed to issue opinion. Department of Transportation v. Stallcup, 341 Or 93, 138 P3d 9 (2006)

Substantial or complete identity between owners of one parcel and members of corporation owning second parcel does not create unity of ownership for purposes of condemner making initial written offer to parcel owner or party in interest. Dept. of Transportation v. Pilothouse 60, LLC, 220 Or App 203, 185 P3d 487 (2008), Sup Ct review denied

35.385

ATTY. GEN. OPINIONS: Right of repurchase distinguished from right of first refusal, (1975) Vol 37, p 773

35.500 to 35.530

(formerly 281.045 to 281.105)

NOTES OF DECISIONS

Where plaintiff’s lease for maintaining advertising sign had expired, plaintiff was not entitled to relocation benefits under these sections as legal right to maintain sign at that location had terminated. Ackerley v. Mt. Hood Comm. College, 51 Or App 801, 627 P2d 487 (1981), Sup Ct review denied

Where petitioners, month-to-month tenants, were displaced when their residences were leased to county Department of Corrections, leasehold was a real property interest within meaning of [former] ORS 281.045, but leasing of space was not an acquisition and petitioners were not entitled to relocation assistance. Shepard v. Dept. of Community Corrections, 293 Or 191, 646 P2d 1322 (1982)

35.500

(formerly 281.045)

NOTES OF DECISIONS

Where petitioners, month-to-month tenants, were displaced when their residences were leased to county Department of Corrections, leasehold was a real property interest within meaning of this section, but leasing of space was not an acquisition and petitioners were not entitled to relocation assistance. Shepard v. Dept. of Community Corrections, 293 Or 191, 646 P2d 1322 (1982)

35.510

(formerly 281.060)

NOTES OF DECISIONS

In determining just compensation for taking of land, improvements and fixtures, even if it was error for trial court to submit question of removal value of tenants’ fixtures to jury, it was harmless where jury found there was no removal value. City of Portland v. Nudelman, 45 Or App 425, 608 P2d 1190 (1980), Sup Ct review denied

Term “will result in the acquisition of real property” of this section indicates a legislative concern with something more than rental of modest amount of office space. Shepard v. Dept. of Community Corrections, 293 Or 191, 646 P2d 1322 (1982)

Court erred in requiring city to take fee title to two separate properties where “uneconomic remnant” theory was not clearly applicable because easement, rather than fee, was taken and even if theory did apply, remnants were not valueless. City of Lake Oswego v. Babson, 97 Or App 408, 776 P2d 870 (1989), Sup Ct review denied

35.550

(formerly 281.210)

NOTES OF DECISIONS

The status of personalty as a fixture depends upon: 1) annexation to the realty; 2) adaptation to the use or purpose of the realty; and 3) objective intention of the annexor. Highway Comm. v. Empire Bldg., 17 Or App 616, 523 P2d 584 (1974), Sup Ct review denied

35.570

(formerly 281.250)

NOTES OF DECISIONS

Trial court has discretion to exclude evidence of price which owner paid for property being taken if that price no longer truly reflects market value. Highway Comm. v. Empire Bldg., 17 Or App 616, 523 P2d 584 (1974), Sup Ct review denied

ATTY. GEN. OPINIONS: Inapplicability of constitutional provision requiring payments based on government regulations restricting use of property, (2001) Vol 49, p 284