§ 20.4 Condemnation Procedure
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Except for the procedures set forth in ORS chapter 368 (county roads), and except inverse-condemnation actions, condemnation actions in Oregon are governed by the General Condemnation Procedure Act, ORS chapter 35. Additional condemnation procedures for private corporations are set forth in ORS chapter 772.
In addition, whenever a condemnor undertakes any program or project that will result in acquiring real property, the condemnor must be guided by the land-acquisition policies and provisions set forth in Title III of the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) (42 USC §§ 4651-4655), notwithstanding any other statute, charter, ordinance, rule, or regulation. ORS 35.500(2); ORS 35.510(3)-(4). ORS chapter 35 expressly references the URA as in effect on January 1, 2003. ORS 35.500(2). Acquisitions utilizing federal funds should conform to the current version of the URA. See 49 CFR § 24.101(b). The procedures specified in the URA generally provide the following:
(1) Real property must be appraised before negotiations begin.
(2) The property owner or the property owner's representative must be given the opportunity to accompany the appraiser during the inspection of the property.
(3) Before negotiations for the property, the condemnor must establish an amount believed to be just compensation for the property and must make a prompt offer to acquire the property for the full amount so established.
(4) In no event can the amount offered be less than the con-demnor's approved appraisal of the fair market value of the property.
(5) The condemnor must provide the property owner with a written statement of and summary of the basis for the amount established as just compensation.
NOTE: The written statement of and summary of the basis for the amount established as just compensation must include a description of the method of valuation used and the reason why that method was selected; the facts on which the valuation is based, including factors such as the parties, price, location, and similarity of comparable sales; and the reasoning by which the amount of just compensation is established. Bethune v. U. S., Dep't of Hous. & Urban Dev., 376 F Supp 1074, 1077 (WD Mo 1972). ORS 35.346(2), (4), and (5) mandate the disclosure and exchange of appraisals and thereby address this requirement.
(6) The property owner is not required to surrender possession of the real property before the condemnor pays the agreed purchase price or deposits with the court for the benefit of the owner the fair market value of the property or the amount of the compensation award in the condemnation proceeding.
(7) No person lawfully occupying real property is required to move without at least 90 days' written notice. See ORS 35.505(2).
(8) The condemnor may not advance the time of condemnation or defer negotiations or condemnation and the deposit of funds in court or take any other action coercive in nature to compel an agreement on the price to be paid for the property.
(9) If acquiring only part of a property would leave its owner with an uneconomic remnant, the condemnor must offer to acquire the entire property.
(10) If the condemnor acquires any interest in real property, it must acquire at least an equal interest in all buildings, structures, or other improvements located on the real property that must be removed from the real property or that will be adversely affected by the use to which the real property will be put.
See 42 USC §§ 4651-1452; 49 CFR § 24.102; 49 CFR § 24.105(a).
An action for violation of the relocation aspects of ORS 35.500 to 35.530 may be a cognizable tort. See Urban Renewal Agency of City of Coos Bay v. Lackey, 275 Or 35, 37-38, 549 P2d 657 (1976) (addressing an alleged violation of Title II of the URA). But see Doyle v. City of Medford, 356 Or 336, 363, 337 P3d 797 (2014) (if a statute does not impliedly create a private right of action, the court should decide whether creation of a common-law right of action is appropriate); Torbeck v. Chamberlain, 138 Or App 446, 451, 910 P2d 389, rev den, 323 Or 265 (1996) (tort claim may be maintained for an alleged statutory violation only if the legislature passed the statute intending to give civil recourse). If a tort claim is cognizable, the Oregon Tort Claims Act (ORS 30.260-30.300) may apply. Lackey, 275 Or at 37-38.
NOTE: A party aggrieved by a public entity's decision concerning relocation benefits (such as a decision denying benefits) must exhaust the party's administrative remedies before filing a judicial action, and if judicial action is filed, it is treated similarly to a contested case under the Oregon Administrative Procedures Act. See ORS 35.520; see also Spada v. Port of Portland, 55 Or App 148, 154-55, 637 P2d 229 (1981); Snow v. State Highway Comm'n, 19 Or App 610, 612-13, 528 P2d 1368 (1974). Further, an action may not be maintained that asserts a direct violation of the URA, because federal courts have held that the URA does not create a private right of action for monetary damages. See Delancey v. City of Austin, 570 F3d 590, 592 (5th Cir 2009) ("the URA does not provide a private right of action for monetary damages"); Clear Sky Car Wash, LLC v. City of Chesapeake, Va., 910 F Supp 2d 861, 877 (ED Va 2012), aff'd, 743 F3d 438 (4th Cir 2014) ("[T]his Court finds that Congress did not evidence an intent to create a federal right of action under Subchapter II of the URA and, absent such intent, the URA does not create such a right of action."); Barnhart v. Brinegar, 362 F Supp 464, 472 (WD Mo 1973) (based on its review of the URA's legislative history, the "irresistible" conclusion is that "Congress intended . . . to preclude judicial review of federal and state agency actions under [the URA]"); see also Munoz v. City of Philadelphia, 346 Fed Appx 766, 769 n 6 (3d Cir 2009).
NOTE: The holding in State By & Through Dep't of Transp. v. Hewett Prof'l Grp., 321 Or 118, 127-29, 895 P2d 755 (1995), indicates that no cause of action exists under former ORS 281.060 (1991), renumbered as ORS 35.510 (2003), relating to land-acquisition policies contained in 42 USC section 4651(7). The court failed to address its previous holding in Lackey, however, or the difference in language between the Oregon statutes (former ORS 281.045-281.105 (1991), renumbered as ORS 35.500-35.530 (2003)) and the federal statutes (42 USC §§ 4601-4655). Oregon law incorporates only a portion of the federal statute, and specifically omits 42 USC section 4602(a), which provides that 42 USC section 4651 creates no rights or liabilities and does not affect the validity of any property acquisitions by purchase or condemnation. Compare ORS 35.525 with 42 USC § 4602(a). The Oregon statute adopted only subsection (b) of section 4602 and intentionally omitted subsection (a), on which Hewett relied. However, ORS 35.530 provides that "[i]f a public entity is receiving federal financial assistance and is thereby required to comply with applicable federal laws and regulations, such federal laws and regulations shall control should there be any conflict with ORS 35.500 to 35.530." The attorney must carefully examine these cases and the particular federal statutes to determine which are still actionable.
§ 20.4-1 Preliminary Responsibilities
§ 20.4-1(a) Surveys and Descriptions
The condemning authority must obtain an accurate legal description of the property to be acquired. See ORS 35.255 (complaint must describe property); see also State By & Through State Highway Comm'n v. Hurli-man, 230 Or 98, 105-06, 368 P2d 724 (1962). Additionally, environmental investigations may be required before necessary permits may be obtained and the feasibility of a particular public project effectively evaluated. One member of the Oregon Law Commission (OLC) work group that drafted ORS 35.220 (precondemnation entry on real property), explained that
[t]he problem right now is that there is no uniformity in precondemnation inspection. . . . That has become a significant issue in recent years due to the proliferation of requirements for environmental testing, archaeological testing, wetlands testing, [and] other considerations that need to be addressed before a public project is commenced.
Tape Recording, Senate Committee on Judiciary, HB 3372A, May 29, 2003, Tape 144, Side B (statement of Greg Mowe). Similarly, the assistant executive director of the OLC testified in support of the bill that
[a]ll public bodies that have [eminent domain powers] often need to enter upon land to conduct preliminary surveys and tests and make tests before they make a decision whether to condemn property. These entries are necessary for design projects and to determine whether or not a particular property would be suitable.
Tape Recording, House Committee on Judiciary, HB 3372, Apr 1, 2003, Tape 115, Side B (statement of Wendy Johnson) (emphasis added). ORS 35.220 provides a mechanism for the condemning authority to enter private property for the purpose of surveying and examining the property before commencing a condemnation action.
A condemnor may enter property subject to condemnation by the condemnor to examine, survey, conduct tests on, or take samples from the property. The condemnor must first attempt to give the property owner actual notice of the proposed entry and the purpose of the entry. If actual notice is not provided, "written notice must be posted in a conspicuous place where the notice is most likely to be seen." ORS 35.220(1). If the owner does not consent to the entry and testing, the condemnor must obtain a court order before entering the property. The court order may establish reasonable terms and conditions for the entry and testing. ORS 35.220(2). The owner is, on request, entitled to copies of the testing and sampling results. ORS 35.220(1).
The owner is entitled to reasonable compensation for any physical damage caused to the property and any...
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