Chapter 35 — Eminent Domain; Public Acquisition of Property

35.010 [Repealed by 1971 c.741 §38]

LIMITATION OF CONDEMNATION POWER

35.015 Prohibition on condemnation of certain properties with intent to convey property to private party; exceptions

Except as otherwise provided in this section, a public body as defined in ORS 174.109 may not condemn private real property used as a residence, business establishment, farm or forest operation if at the time of the condemnation the public body intends to convey fee title to all or a portion of the real property, or a lesser interest than fee title, to anoth…

35.018 Severability

If any portion or portions of chapter 1, Oregon Laws 2007, are declared invalid by a court of competent jurisdiction, the remaining portions of chapter 1, Oregon Laws 2007, shall remain in full force and effect. Note: 35.018 was enacted into law but was not added to or made a part of ORS chapter 35 or any series therein by law. See Preface to Oregon Revised…

35.020 [Repealed by 1971 c.741 §38]

35.030 [Repealed by 1971 c.741 §38]

35.040 [Amended by 1967 c.479 §1; repealed by 1971 c.741 §38]

35.050 [Repealed by 1971 c.741 §38]

35.060 [Repealed by 1971 c.741 §38]

35.070 [Amended by 1967 c.479 §2; repealed by 1971 c.741 §38]

35.080 [Repealed by 1971 c.741 §38]

35.085 [1967 c.479 §§4,5; repealed by 1971 c.741 §38]

35.090 [Repealed by 1971 c.741 §38]

35.100 [Repealed by 1971 c.741 §38]

35.105 [1967 c.479 §6; repealed by 1971 c.741 §38]

35.110 [Repealed by 1971 c.741 §38]

35.120 [Repealed by 1971 c.741 §38]

35.130 [Repealed by 1971 c.741 §38]

35.140 [Repealed by 1971 c.741 §38]

PROCEDURE

35.205 Short title

This chapter may be cited as the General Condemnation Procedure Act.

35.215 Definitions for chapter

As used in this chapter, unless the context otherwise requires: “Condemner” means the state, any city, county, school district, municipal or public corporation, political subdivision or any instrumentality or any agency thereof or a private corporation that has the power to exercise the right of eminent domain. “Owner” or “owner of the property” means the …

35.220 Precondemnation entry on real property

Subject to the requirements of this section, a condemner may enter upon, examine, survey, conduct tests upon and take samples from any real property that is subject to condemnation by the condemner. A condemner may not enter upon any land under the provisions of this section without first attempting to provide actual notice to the owner or occupant of the pr…

35.225 [1971 c.741 §5; repealed by 1979 c.284 §199]

35.235 Agreement for compensation; status of resolution or ordinance of public condemner; status of action of private condemner; agreement effort not prerequisite

Subject to ORS 758.015 and 836.050, whenever in the judgment of the condemner it is necessary to acquire property for a purpose for which the condemner is authorized by law to acquire property, the condemner shall, after first declaring by resolution or ordinance such necessity and the purpose for which it is required, attempt to agree with the owner with re…

35.245 Commencement of action; jurisdiction; parties

If the condemner is unable to agree with or locate the owner of the property under ORS 35.235, then an action to condemn property may be commenced in the circuit court of the county in which the property proposed to be condemned, or the greater portion thereof, is located. An action may be commenced against the person in whose name the record title appears.…

35.255 Content of complaint

The complaint shall describe the property sought to be condemned and shall allege the true value of the property sought and the damage, if any, resulting from the appropriation thereof.

35.265 Advance deposit by public condemner requiring immediate possession; effect on interest otherwise allowable

When a public condemner commences an action for the condemnation of property and immediate possession of the property is considered necessary by the public condemner, a fund shall be created in the amount estimated to be the just compensation for the property and placed in the hands of the treasurer of the public condemner for deposit with the clerk of the c…

35.275 Advance occupancy by private condemner; hearing; deposit or bond; effect of size of bond or deposit on amount of just compensation

At any time after an action is commenced to acquire any property, a private condemner may apply to the court for an order to occupy the property to be condemned and to make use of the property for the purposes for which it is being appropriated. At the hearing on the motion, the court shall determine the reasons for requiring a speedy occupation. The court …

35.285 Distribution of deposits; effect of withdrawal on appeal

The court may distribute all or any part of the funds deposited by a condemner to the persons entitled thereto for or on account of the just compensation to be awarded in the action, upon such terms and conditions as may appear just and reasonable. Any persons entitled to withdraw any or all of the deposit, as provided by subsection (1) of this section, may…

35.295 Defendant’s answer

The defendant in answer may set forth any legal defense the defendant may have to the condemnation. The defendant shall also allege the true value of the property and the damage, if any, resulting from the appropriation thereof.

35.300 Offer of compromise

After the filing of a condemnation action, a condemner may serve an offer of compromise on the defendant in the action. An offer of compromise must be served on the defendant not later than 10 days before the trial of the action. The offer of compromise must identify the amount offered as just compensation for the property and as compensable damages to remai…

35.305 Conduct of trial; defendant’s option; jury argument; neither side has burden of proof of just compensation

Evidence shall be received and the trial conducted in the order and manner prescribed for a civil action in the circuit court, except that the defendant shall have the option of proceeding first or last in the presentation of evidence, if notice of such election is filed with the court and served on the condemner at least seven days prior to the date set for…

35.315 View of property by order of court

If motion is made by either party before the formation of the jury, the court shall order a view of the property in question. Upon the return of the jury, the evidence of the parties may be heard and the verdict of the jury given.

35.325 Effect of judgment; effect of payment under judgment

Upon the assessment of the compensation by the jury, the court shall give judgment appropriating the property in question to the condemner, conditioned upon the condemner’s paying into court the compensation assessed by the jury; and, after the making of such payment, the judgment shall become effective to convey the property, and the right of possession the…

35.335 Effect of condemner’s abandonment of action

If an action is abandoned by the condemner, the court shall enter judgment in favor of the defendant for costs and disbursements in the action and for reasonable attorney fees and reasonable expenses as determined by the court. Expenses mean costs of appraisals and fees for experts incurred in preparing and conducting the defense to the action. An action i…

35.345 [1971 c.741 §18; repealed by 1973 c.617 §1 (35.346 enacted in lieu of 35.345)]

35.346 Offer to purchase required before filing action for condemnation; appraisal; arbitration; when costs and disbursements allowed

At least 40 days before the filing of any action for condemnation of property or any interest in property, 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 offer shall be accompanied by any w…

35.348 Immediate possession of property

Notwithstanding ORS 35.346, if a condemner determines that an emergency that poses a threat to persons or property exists and that immediate possession of the property is necessary, the condemner may immediately file a condemnation action after making the written offer required under ORS 35.346 (1) accompanied by the appraisal or explanation required by ORS …

35.350 Immediate possession of property by public body

This chapter does not affect the ability of a public body, as defined in ORS 174.109, to take immediate possession of property in an emergency that poses a threat to persons or property.

35.352 Notice of immediate possession of property by public condemner; objection

At any time after a condemnation action is commenced, a public condemner may serve notice that the public condemner will take immediate possession of the property that is the subject of the action. The notice must be served in the manner provided by ORCP 9 on all defendants in the action. If notice is served under this section, a defendant in a condemnation…

35.355 Appeal

Either party to the action may appeal from the judgment in like manner and with like effect as in ordinary cases, but the appeal shall not stay the proceedings so as to prevent the condemner from taking possession of the property and using it for the purposes for which it is being appropriated. In the event the defendant prevails on an appeal, the costs and …

35.365 Effect of withdrawal of award; disposition of award

If the defendant withdraws the compensation awarded by the court or jury, the defendant waives the right of appeal; and, if the defendant does not, such sum shall remain in the control of the court, to abide the event of the appeal. If an unknown owner of the property or other defendant does not appear and claim the sum, it shall be invested for the benefit …

35.375 Chapter as exclusive condemnation proceeding; exception

Except for procedures provided in ORS chapter 368, any action for the condemnation of property under the power of eminent domain shall be conducted according to this chapter.

35.385 Public purpose use required of condemner; right of repurchase; specification of duration of public purpose use; effect

If real property is acquired by a condemner by agreement with the owner of such property after the adoption of a resolution or ordinance under ORS 35.235 (1) for the acquisition of the property but before entry of a judgment in a condemnation action under ORS 35.245, the condemner and the owner shall: Specify in such agreement for the real property a reason…

35.390 Effect of failure of condemner to use property as required; price of repurchase; form of offer of repurchase

If a condemner fails to use the real property or any portion thereof acquired under this chapter within the time specified in an agreement entered into under ORS 35.385 (1) or with the terms of a judgment given under ORS 35.325 and 35.385 (2), whichever applies, and the prior owner of the real property has not waived the right to repurchase the real property…

35.395 Change in period of use; notice; effect of failure to agree on change; review by court

The period specified in an agreement or judgment as provided in ORS 35.385 may be changed as provided in this section, if the prior owner of the real property has not waived the right of repurchase and the condemner finds that it will be unable to use all or a portion of the real property for such purpose within the specified period and requires a reasonable…

35.400 Designation of person to exercise right of repurchase; effect of failure to designate; offer to repurchase; acceptance; notice; determination of price

At the time of entering into an agreement pursuant to ORS 35.385 (1) for the acquisition of real property by a condemner or prior to the time of giving judgment for the acquisition of real property by a condemner under ORS 35.325, the owner of the real property to be acquired may, if such owner has not waived the right of repurchase under ORS 35.385 to 35.41…

35.405 Designation of person to exercise right of repurchase by multiple owners

Notwithstanding any other provision of ORS 35.385 to 35.415, in any instance in which ORS 35.385 applies, where the agreement by which the condemner acquired the property is executed by more than one person exclusive of the condemner, or where the judgment given in a condemnation action by which the condemner acquired the property includes more than one name…

35.410 Right to contest change in public purpose use; notice of proposed change

A prior owner of real property acquired pursuant to an agreement entered into under ORS 35.385 (1) or a judgment given under ORS 35.235 and 35.385 (2), whichever applies, or the designated beneficiary of such owner, may contest any proposed change by the condemner in the public purpose for which such real property was acquired in the manner provided for cont…

35.415 Application of ORS 35.385 to 35.415

ORS 35.385 to 35.415 apply only to property acquired after the filing of a complaint pursuant to a resolution or ordinance adopted as provided in ORS 35.235 (1) on or after October 5, 1973, and for which a condemnation action is commenced on or after October 5, 1973. Notwithstanding ORS 35.375, ORS 35.385 to 35.415 apply to real property acquired by a count…

35.500 Definitions for ORS 35.500 to 35.530

As used in ORS 35.500 to 35.530: “Displaced person” means any person who moves, or is required to move the person’s residence and personal property incident thereto, or the person’s business or farm operation as a result of: Acquisition of the real property, in whole or in part, by a public entity; or Receipt of a written order by such person from a publi…

35.505 Relocation within neighborhood; notice prior to move; costs and allowances

A public entity undertaking urban renewal or neighborhood development shall make all reasonable efforts to insure that all displaced persons shall have the option to relocate within their urban renewal or development neighborhood or area and shall not be displaced, except temporarily as required by emergency, until appropriate residential units shall become …

35.510 Duties of public entities acquiring real property

Whenever any program or project is undertaken by a public entity which program or project will result in the acquisition of real property, notwithstanding any other statute, charter, ordinance, or rule or regulation, the public entity shall: Provide fair and reasonable relocation payments and assistance to or for displaced persons as provided under sections…

35.515 Required disclosures for business and farm operations

To be eligible for the payment authorized by ORS 35.510, a business or farm operation must make its state income tax returns and its financial statements and accounting records available for audit for confidential use to determine the payment authorized.

35.520 Decision on benefits; hearing; review

Any person who applies for relocation benefits or assistance under ORS 35.510 shall receive the public entity’s written decision on the application, which shall include the statement of any amount awarded, the statutory basis for the award and the statement of any finding of fact that the public entity made in arriving at its decision. A person aggrieved by …

35.525 Construction

Nothing in ORS 35.510, 35.515 or 35.520 shall be construed as creating in any condemnation proceedings brought under the power of eminent domain, any element of value or of damage not in existence immediately prior to May 7, 1971.

35.530 Federal law controls

If a public entity is receiving federal financial assistance and is thereby required to comply with applicable federal laws and regulations relating to relocation assistance, such federal laws and regulations shall control should there be any conflict with ORS 35.500 to 35.530. CONDEMNATION BY STATE

35.550 Definitions for ORS 35.550 to 35.575

As used in ORS 35.550 to 35.575: “Property” means real property, water, watercourses, and water and riparian rights, or any right or interest therein. “Board” means: The state board of commissioners, trustees, or other state board, having direction of the state department or institution for which the property is desired; or The Department of State Lands,…

35.555 Determination of necessity; suit by Attorney General

Whenever the state requires property for any public use, the necessity for the acquisition to be decided and declared in the first instance by the board, if the board and the owner of such property cannot agree upon the price to be paid for the amount of or interest in the property required for such public use, and the damages for the taking thereof, the boa…

35.560 Action by district attorney

The district attorney of the judicial district in which the property to be condemned lies shall: Commence and prosecute the suit, action or proceeding in the circuit court of such district, when requested by the board; or Aid the Attorney General in so doing in any manner requested by the Attorney General.

35.565 Procedure for condemnation

The procedure in the suit, action or proceeding referred to in ORS 35.555 or 35.560 shall be, as far as applicable, the procedure prescribed by law for the condemnation of lands or rights of way by public corporations or quasi-public corporations for public use or for corporate purposes.

35.570 Payment of expenses of proceeding, value and damages

The expenses of the condemnation proceeding, the value of the property, and the damages for the taking thereof, shall be paid out of the funds provided for the department or institution for which the property is acquired in the same manner as other expenses for like purposes of such department or institution are paid. If no funds have been provided out of wh…

35.575 Precondemnation compensation not required

ORS 35.550 to 35.575 do not require the state to make or tender compensation prior to condemning and taking possession of the lands or property. CONDEMNATION OF PROPERTY ADJOINING PROPOSED ROADWAYS

35.600 Application

ORS 35.600 to 35.625 apply to all condemners other than the state.

35.605 Authorization to acquire adjoining property for roadways

Every condemner having the right to purchase, acquire, enter upon and appropriate land and property for establishing, laying out, widening, enlarging or extending roads, streets or highways, may purchase, acquire, enter upon and appropriate, in or in connection with establishing, laying out, widening, enlarging or extending roads, streets or highways, land a…

35.610 Ordinance or resolution required

Before the right to purchase, acquire, enter upon and appropriate any adjoining land or property under ORS 35.605 is exercised by any condemner, the governing body shall by appropriate ordinance or resolution describe the land to be purchased, acquired, entered upon or appropriated, and shall further determine that the appropriation of such land is reasonabl…

35.615 Restrictions on future use of property acquired adjacent to roadway

After an appropriation of land and property authorized by ORS 35.605 has been made, the land and property so appropriated adjoining the boundaries of any road, street or highway and not actually occupied by the road, street or highway, may, by appropriate ordinance or resolution, be declared subject to and burdened with the restrictions upon the future use a…

35.620 Acquisition of land adjoining road boundaries declared necessary

The purchase, acquisition, entering upon and appropriation of lands and property immediately adjoining the boundaries of roads, streets or highways, as defined and limited in, and to the extent authorized by, ORS 35.600 to 35.625 is declared to be necessary for the development and welfare of the state and its inhabitants and to be a public use.

35.625 Procedure to ascertain compensation and damages

If private property is appropriated for the public use as authorized by ORS 35.605, and the compensation and damages arising from the appropriation cannot be agreed upon, the appropriation shall be made and the compensation and damages shall be considered, ascertained, determined, awarded and paid in the manner provided by this chapter. _______________