Chapter §15.10 DENIAL OF ACCESS

• Jurisdiction: Oregon

§15.10 DENIAL OF ACCESS

Although the government's denial of access to a roadway is not a regulation in the traditional sense, Oregon courts have treated such claims as regulatory takings claims. See, e.g., Curran v. State, Dep't of Transp., 151 Or App 781, 787, 951 P2d 183 (1997) (evaluating a takings claim based on placement of a guardrail blocking the claimant's access under the regulatory takings standards: "Although plaintiffs' claim is not a traditional regulatory-taking claim, it is analogous to one.").

§15.10-1 Common-Law Right of Access

Oregon courts long have recognized that owners of land abutting a street or highway have a common-law right to use that roadway as a means of access to and from the property. See, e.g., McQuaid v. Portland & V. Ry. Co., 18 Or 237, 240, 22 P 899 (1889) (placing a railway in a public street, thus blocking an abutting landowner's access, constituted a taking under Article I, section 18).

To be a taking, the removal of a particular access must deny the landowner all access to the property. In Oregon Inv. Co. v. Schrunk, 242 Or 63, 65, 408 P2d 89 (1965), the City of Portland prohibited the landowners from constructing a driveway because the city was concerned that it would be unsafe for pedestrians; but the city permitted the landowner to have driveways onto other streets. The Oregon Supreme Court rejected the landowners' takings claim under Article I, section 18, of the Oregon Constitution, holding that "where the property fronts on more than one street, access may be denied, under particular circumstances, at one of the streets if adequate means of access remain to the owner at the other street or streets." Oregon Inv. Co., 242 Or at 72-73. The courts frequently have reiterated that rule. See, e.g., State Highway Comm'n v. Cent. Paving Co., 240 Or 71, 74-75, 399 P2d 1019 (1965) (conversion of a highway to a limited access highway, eliminating the landowners' direct access, was not a taking because the landowners could still access the highway via another road); Deupree v. State ex rel. Dep't of Transp., 173 Or App 623, 629, 22 P3d 773 (2001) ("Where access to private property is retained through another public road, even though that access may be less satisfactory, the loss of direct highway access is not compensable."); State ex rel. Dep't of Transp. v. Hanson, 162 Or App 38, 44, 987 P2d 538 (1999) ("[T]he common-law right entitles the owner only to access generally, not access at a particular location. As a result...