Chapter § 63.2 VACATION

JurisdictionOregon
§ 63.2 VACATION

§ 63.2-1 Power to Vacate

Under Article IV, section 23, of the Oregon Constitution and subject to the due-process provisions in the United States Constitution and the Oregon Constitution, the power to vacate public ways (other than state highways) has been reserved to local, county, and municipal authorities. The legislature has established statutory provisions for vacating county roads in ORS 368.326 to 368.366 and city streets in ORS 271.080 to 271.230. See Cabell v. City of Cottage Grove, 170 Or 256, 274, 130 P2d 1013 (1942) ("The legislature . . . may close a street or may delegate such power to a city, though that power may not be constitutionally exercised without making compensation to property owners who suffer special injury as a result.").

§ 63.2-2 Justification for Vacation

Because vacation of a public way eliminates a public right, vacation proceedings must determine that the way is no longer required for public use or convenience and that the vacation would be in the public's best interest. This common-law rule has been codified in Oregon. ORS 271.080-271.230, ORS 368.326-368.366.

A public way cannot be vacated for the sole purpose of benefiting an abutting landowner. See Bostwick v. Hosier, 97 Or 125, 128, 190 P 299 (1920). However, a vacation will not be denied simply because the vacation confers a consequential benefit to an abutting landowner who may also be the petitioner. Conversely, even if some abutting landowners object to the vacation, it may still be done if deemed to be in the best interests of the general public, if the vacation procedure is valid, and if the landowners' access to their land is not eliminated by the vacation. See ORS 368.331.

Courts in other states have held that the public interest is sufficiently served by a vacation when the city will be relieved of maintaining a public way used only by a very small portion of the public, or when the condition or location of a public way renders it unsafe for the traveling public. A.C. Mcl., Annotation, What Justifies Discontinuance of Highway, 68 ALR 794, 796 (1930).

§ 63.2-3 Procedures to Vacate

The procedures for vacating public ways are established by ORS 368.326 to 368.366 (counties) and ORS 271.080 to 271.230 (cities). As with any statutory procedure, strict compliance is required. Rynearson v. Union Cnty., 54 Or 181, 183, 102 P 785 (1909); see Simmons v. Holm, 229 Or 373, 381-84, 367 P2d 368 (1961); L.S. Tellier, Annotation, Necessity for Adhering to Statutory Procedure Prescribed for Vacation, Discontinuance, or Change of Route of Street or Highway, 175 ALR 760 (1948).

§ 63.2-3(a) State Highways

When the state acquires highway lands, the fee title is usually acquired by purchase or eminent domain. See ORS 366.360. If the state holds only an easement and the easement is vacated, then the unencumbered fee would revert to the servient landowner unless the easement originally provided for a different result upon abandonment or reverter. ORS 366.300(4).

Property that is "no longer needed, required or useful" for highway purposes may be sold, leased, exchanged, or otherwise disposed of by the state through the Oregon Department of Transportation (ODOT). ORS 366.395(1).

Portions of a highway can be eliminated in two ways: (1) affirmative action of the state, and (2) relocation of the highway. Portions of a state highway that are eliminated from the state highway system, with the written consent of the county in which the state highway is located, become a county road or highway under the exclusive jurisdiction of the county where it is located. ORS 366.290(3). Portions of state highways eliminated by relocation or realignment may continue to be maintained by the county, by the state, or by both, if needed for the "service of persons living thereon or for a community served thereby." ORS 366.300(1). If the portions are needed or valuable for public road use, the state may then preserve them for public road use. ORS 366.300(2). If the eliminated sections are parts of the former right-of-way that are no longer needed for right-of-way purposes, they revert to and title vests in the abutting owners. ORS 366.300(3).

CAVEAT: ODOT's
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