Author Archives: Neil Olsen

Powell-Division Steering Committee Advances Transit Action Plan

August 11, 2015 By in Eminent Domain, Powell-Division, TriMet Projects Tags: , , , ,
Powell-Division Steering Committee Advances Transit Action Plan

As set forth in the June 2015 Transit Action Plan published by the Powell-Division Transit and Development Project:

The Steering Committee has unanimously advanced the Tilikum Crossing to cross the Willamette River; unanimously advanced 82nd Avenue and chose to continue studying 50th and 52nd Avenues; and advanced three route options (Main/223rd, Cleveland, and Hogan Road) to connect to Stark Street and Mt Hood Community College.

As set forth in the Plan, from 2015 to 2017, the Project will create a detailed design of the new transit line and station areas, and complete environmental review and permitting.  From 2018 to 2020, the transit line and station areas will be constructed.

For more on this bus rapid transit project, see my previous posts here and here.

Farmington Road Project: Washington County Filing Condemnation Lawsuits

November 24, 2014 By in Eminent Domain, Washington County Projects Tags: , , , ,
Farmington Road Project: Washington County Filing Condemnation Lawsuits

From all indications, Washington County has begun filing condemnation actions against property owners with whom it has not reached “agreement” on its Farmington Road Project.

As I noted in my post on the Project earlier this year,  it calls for the widening of Farmington Road from Murray Boulevard to Hocken Avenue.

The “final design” map showing the extent of the takings and impacted properties is found here, and a the Project’s very basic construction staging map is found here.

In road widening projects such as this one, which result primarily in partial “strip takings,” the often-found fundamental tension between the government’s approach and just compensation is the government’s propensity to ignore or minimize damages to the value of the property remaining after the taking.  Unfortunately for property owners, such damages can be significant, even if the strip taken is relatively small.  In addition to factors such as an increased proximity to travel lanes and attendant noise, property owners can be faced with adverse impacts to access, parking, on-site vehicle maneuvering, and conformity with set-backs and other development requirements.  In certain situations, the highest and best use of the property can take a hit, potentially resulting in very significant damages.

Fortunately, property owners have a constitutional right not to have their just compensation minimized.  Vindicating that constitutional right, however, requires action and standing up to the government.

 

Hall v. Department of Transportation: Oregon Supreme Court Takes on Condemnation Blight Claims

November 19, 2014 By in Inverse Condemnation, Oregon Case Law, Property Rights Litigation Tags: , , , ,
Hall v. Department of Transportation: Oregon Supreme Court Takes on Condemnation Blight Claims

Fresh off its decision in Dunn v. City of Milwaukie, 355 Or 339, 361, 328 P3d 1261 (2014) (en banc), the Oregon Supreme Court has, again, narrowily read its previous decisions and raised the bar for property owners seeking recourse on inverse condemnation claims under the Oregon constitution.  In Hall v. Department of Transportation, 355 Or 503,  326 P3d 1165 (2014) (en banc), the court held that a property owner seeking relief on a “condemnation blight” inverse condemnation claim–one in which a property owner seeks relief for damages resulting from the specter of condemnation ahead of an actual taking–the property owner must allege and ultimately prove that the government’s actions deprived the property owner of “all economically viable use.”  Id. at 523.  In other words, it is not enough that the government’s actions have diminished the value of a property, even substantially; to maintain a condemnation blight claim, the property must apparently have virtually no remaining value.

Upholding the court of appeals reversal of a jury verdict in excess of $3,000,000, the supreme court held that the plaintiffs’ classic “condemnation blight” allegations and supporting evidence failed to “establish a cognizable de facto taking by condemnation blight” because “plaintiffs’ property retained some economic value.” Id. at 523.  In reaching its decision, the court expressly rejected the plaintiffs’ argument that condemnation blight claims are subject to the less stringent “reduction-in-value damage requirement” associated with “the substantial-interference-with-use-and-enjoyment standard,” id. at 522, reserving this standard for cases in which “a governmental actor physically occupies private property or invades a private property right.” Id.

To give some flesh to the bone, the plaintiffs in this case presented evidence at trial supporting the following allegations:

  • The Oregon Department of Transportation (ODOT) “had disseminated information to the public that plaintiffs’ access to the state highway system would be eliminated and that ODOT planned to acquire plaintiffs’ property through eminent domain proceedings”;
  • ODOT had conducted public hearings and otherwise informed the public that the highway interchange near the plaintiffs’ property was dangerous, it would be eliminated, and that plaintiffs access to it property would accordingly be eliminated;
  • ODOT had disclosed plans and consulting reports recommending the closure of the interchange and taking of plaintiffs’ property;
  • ODOT had informed the local city with jurisdiction over the area that it intended to remove plaintiffs’ access and take their property; and
  • ODOT had specifically informed prospective investors, lessees, purchasers and developers of the subject property that it intended to close the interchange and take plaintiffs’ property.

Id. at 506-07.

This activity went on for a period of six years without ODOT initiating condemnation proceedings, as it worked through public opposition to removal of the interchange.  Id. at 506.  Indeed, during a period of ODOT-instituted delay, when ODOT learned that the plaintiffs were trying to develop their property,  ODOT internal emails confirmed that “ODOT had taken steps to stop any future development of plaintiffs’ property.”  Id.  Moreover, “[b]etween 2005 and 2007, plaintiffs attempted to sell their property or reach agreements to development,” which efforts were unsuccessful, id., and “[a] real estate broker . . . testified that he was unable to consummate an agreement because of the uncertainty surrounding the closure of the . . . interchange.”  Id.

At the close of evidence, “ODOT moved for a directed verdict on the ground that there was no evidence that its conduct amounted to a nuisance but, rather, the evidence showed that it had engaged in planning for a public purpose, and that the proper standard of harm was whether ODOT’s conduct had deprived the plaintiffs of all economically viable use of their property.”  Id. at 508.  The trial court denied the motion and rejected ODOT’s proposed jury instructions premised on similar arguments.  Id.  “In response to questions posed in the verdict form, the jury found that ODOT’s actions had substantially and unreasonably interfered with plaintiffs’ use and enjoyment of the land, and that those actions were sufficiently direct, particular, and of a magnitude to support a conclusion that the interference had reduced the fair market value of the property.”  Id. at 509.  “The jury found that the value of the property without interference was $4,000,000 and that ODOT’s interference had reduced that value by $3,378,750.”  Id.  “The trial court denied ODOT’s motion for judgement notwithstanding the verdict and entered judgment for the plaintiffs.”  Id.

The court of appeals reversed the trial court’s decision on two grounds: (1) “evidence that ODOT’s actions lowered the value of plaintiff’s property was insufficient to establish a compensable taking”; and (2) the trial court erred to the extent it relied in its rulings for plaintiffs that ODOT was pursuing a vendetta against them because plaintiffs’ assertion of ODOT’s malicious intention was “self-defeating” in that “[i]f * * * the intent behind ODOT’s actions was not to take plaintiffs’ property for public use, then those actions could not amount to a taking.”  Id. at 509 (emphasis in original) (citation omitted).

On review, the supreme court ignored the “vendetta” issues, and confined its analysis to “plaintiffs’ assertions that the trial court properly based its dispositive ruling, jury instructions, and verdict form on its conclusion that the substantial-interference-with-use-and-enjoyment standard–not the more stringent deprivation-of-all-economically-viable-standard–applied to plaintiffs’ inverse condemnation claim.”  Id. at 510.  It specifically held that “because the actions that plaintiffs challenge involved planning related to the designation of plaintiffs’ property for eventual public use, and plaintiffs did not allege that those actions deprived them of all economically viable use of their property or prove that ODOT physically occupied their property or invaded their property rights in a way that substantially interfered with its necessary use and enjoyment, the trial court erred in denying ODOT’s motion for a directed verdict.”  Id. 

The court reached this decision only by reading its previous decision in Lincoln Loan Co. v. State Hwy. Comm., 274 Or 49, 545 P2d 105 (1976) to an extremely narrow–and arguably distorted–extent.  In Lincoln Loan, the plaintiff “brought [an] inverse condemnation action against the Oregon State Highway Commission to recover damages for an alleged taking of plaintiff’s property in the process of the construction of the East Portland Freeway by allegedly placing a ‘cloud of condemnation’ over the property, which resulted in a ‘condemnation blight’ and a de facto taking, not of the possession of the property, but of a substantial use and benefit thereof.”  Id. at 51.  The Oregon Supreme Court held that plaintiff stated a claim for inverse condemnation based upon this condemnation blight theory on the following allegations:

  • “[A]bout ten years prior to the filing of the complaint in this action the defendant, by resolution, declared plaintiff’s property necessary in the construction of the said East Portland Freeway.”
  • ‘That at the time of declaring the resolution aforesaid and at all times thereafter defendant commenced the taking of real property in the vicinity of plaintiff’s property for highway purposes and did in fact file condemnation proceedings against plaintiff’s property herein.”
  • “That in so taking said properties, defendant has caused the following:
(a) Caused notices to be published that all real property within the areas designated by the State of Oregon would be taken for roadway purposes;
(b) Caused notices to be given that no compensation would be awarded for improvements to said real property even though such improvements may be in the nature of maintenance only;
(c) Caused dwellings to be dismantled in the surrounding properties, creating noise, dust and confusion and encouraging the decay and desertion of the area;
(d) Caused heavy equipment including trucks and tractors to be brought into the neighborhood for use in demolishing adjacent buildings and thereby further encouraging the decay and desertion of the area;
(e) Caused notices to be given to tenants that they would be required to vacate the buildings in the area because the defendant was taking them for roadway purposes;
(f) Caused notices to be published that defendant would pay moving expenses and other compensation to tenants if they vacated plaintiff’s premises described above.”

 

Id. at 51-52.  After a thorough analysis, the court held that “[p]laintiff has alleged adequate facts which indicate a substantial interference by the state with the use and enjoyment of its property. The combination of the acts alleged in plaintiff’s complaint, the alleged pervasive extent of that combination of acts and the alleged duration of those acts over a ten-year period unite to allege a substantial interference with the use and enjoyment of its property by plaintiff.”  Id. at 57.  The court then went on to specifically describe as “unpersusive” a number of cases from other jurisdictions “all of which held that preliminary steps taken to exercise the power of eminent domain without an actual physical taking or invasion are not actionable by the landowner.”  Id. at 58.

To avoid the clear direction of its previous decision in Lincoln Loan, the Oregon Supreme Court in Hall, rather than looking to the totality of the circumstances which gave rise to the condemnation blight inverse condemnation claim in Lincoln Loan and the court’s express rejection in Lincoln Loan of a requirement of physical taking or invasion to invoke the substantial interference standard, focused on only one of the acts alleged–the creation of “dust, noise and confusion”–and thus marginalized Lincoln Loan as follows:

“The plaintiff in Lincoln Loan alleged that the defendant had interfered with its use and enjoyment of its property by, among other things, creating noise, dust, and confusion by the demolition of neighboring properties.

Viewed in its particular context, Lincoln Loan thus stands for the proposition that a precondemnation, government-created nuisance that substantially interferes with an owner’s right to the use and enjoyment of property can give rise to an inverse condemnation claim based on a resulting reduction in the property’s value. However, nothing in Lincoln Loan suggests that, in the absence of a physical occupation or invasion of a property right, a government action that causes only a reduction in the value of property qualifies as a taking.”

 

Hall, 355 Or at 516 (emphasis added).

Whatever your sense of the outcome of case, it is a good read and one that thoroughly explains the Oregon Supreme Court’s analytical framework for inverse condemnation claims.  Also of interest, it was argued for the plaintiff property owner by former Oregon Supreme Court justice Michael Gillette.

Finally, it is also very important to note that the holding applies only to claims under Oregon’s constitution.  As noted by the court in its concluding footnote, the plaintiffs did not “raise a federal constitutional argument in this court; accordingly, we do not address that issue.”  Id. at 524 n 9.

Bus Rapid Transit for Powell-Division Project Says Steering Committee

November 16, 2014 By in Eminent Domain, Powell-Division, TriMet Projects, Uncategorized Tags: , , ,
Bus Rapid Transit for Powell-Division Project Says Steering Committee

The steering committee for Metro’s Powell-Division transit project has spoken.  Moving forward, it will focus on bus rapid transit (BRT) options, dropping from considering street car and light rail options.

As reported by Metro:

The unanimous vote came as committee members said they were focused more on a project that could be built soon and require substantially less private property acquisition and roadway impacts than a rail project.

* * *

The committee also voted unanimously to focus on a transit route that would use Powell Boulevard in inner Portland, then jog north to Division Street somewhere between 52nd and 92nd avenues, before heading east to Gresham. The route could then extend as far east as the Mt. Hood Community College campus near Troutdale.

For more on the Powell-Division project, see my earlier post.

Powell-Division Transit and Development Project: Metro Plans Another Move in High Capacity Transit

June 22, 2014 By in Eminent Domain, Land Use, Powell-Division, TriMet Projects Tags: , , , , 1 Comment
Powell-Division Transit and Development Project: Metro Plans Another Move in High Capacity Transit

Metro is moving forward with preliminary planning for its “Powell-Division Transit and Development Project.”  For this “high capacity transit” project–meaning most likely light rail or bus rapid transit–Metro is currently soliciting input from the public and the Project’s steering committee regarding transit type, route, station areas, and redevelopment opportunities.  Similar to Metro’s “Southwest Corridor” planning, such move was foretold by Metro’s 2009 High Capacity Transit Plan, which sets forth its vision and priority for high capacity transit projects across the Portland metropolitan area.

The Powell-Division corridor, as currently envisioned, stretches from downtown Portland to Gresham.  As the name of the Project indicates, the corridor centers on SE Powell Boulevard and SE Division Street for much of its length.  A “Project Atlas” published by Metro provides a many-layered view of the corridor area.

As noted above, the planning for the Project is currently in its public input phase, after which the Project team will decide on a preferred mode of transit and preferred route.   The Project’s published timeline, from its most recent fact sheet, indicates that the Project team will make a final decision on mode and route recommendations in Winter 2015.

Whatever route and mode of high capacity transit is ultimately chosen, many properties, homes and businesses will likely be impacted.  While many elements of the Project appear to serve legitimate public purposes, whether the owners of the impacted properties will receive the just compensation to which they are constitutionally entitled is a wholly different matter.  It will also be interesting to see how the Project implements its development goals.

 

Dunn v. City of Milwaukie: Oregon Supreme Court sets high bar for certain “physical invasion” inverse condemnation claims

June 12, 2014 By in Inverse Condemnation, Oregon Case Law, Property Rights Litigation Tags: , ,

In a recent decision, the Oregon Supreme Court clarified Oregon law on “physical invasion” inverse condemnation claims.   In Dunn v. City of Milwaukie, 355 Or 339, 361, __ P3d __ (2014) (en banc), the court held that a homeowner could not maintain a claim for inverse condemnation against the city based upon a physical invasion of sewage into her home caused by the city.  Reversing both the court of appeals and trial court, the court held that the homeowner failed to prove that the city had the requisite intent to invade her home with sewage because she failed to show either that the city specifically intended the invasion or that intent could be imputed to the city based upon the invasion being the “natural and ordinary consequence” of the city’s actions.  Id.  In order to satisfy the “natural and ordinary consequence” test, the court held that a plaintiff must show the physical invasion was the “inevitable result” of the government’s intentional act.  Id. at 358-59, 61.

The court restated “natural and ordinary consequence” test as follows:

A factfinder is entitled to impute the requisite intent to take property if the invasion to the property owner’s interests was the necessary, substantially certain, or inevitable consequence of the government’s intentional acts. . . . And although a plaintiff’s burden is less than specific intent would make it, it is still exacting.  A plaintiff still must show that the government intentionally undertook its actions and that the inevitable result of those actions, in the ordinary course of events, was the invasion of the plaintiff’s property that is the basis for the plaintiff’s inverse condemnation claim.  Thus, if a plaintiff’s best evidence is that the invasion was a less that certain consequence — such as a conceivable, possible, or plausible outcome, or one that otherwise might or might not occur — that is not enough for a factfinder to infer that the invasion was intentional.

Id. at 358-59.

In Dunn, the city was in engaged in “hydrocleaning” of sewer pipes, which involved applying high pressure water to sewer pipes, so that the cleaned pipes could be properly inspected for maintenance and repair purposes.  Id. at 341.  The city’s hydrocleaning resulted in sewage backing up into the homeowner’s lateral line and exploding into her home through her plumbing fixtures.  Id. at 341-42.  As described by the court:

Plaintiff first became aware of a backup when she heard a “loud roar,” felt her house shake, and then saw “brown and gray gunky sewer water that stunk” come out her toilets and bathroom fixtures.  Soon afterwards, water was dripping from her bathroom ceiling and was three to four inches deep on the bathroom floor, flowing down the hallway and into her living room.

Id. at 342.

Plaintiff’s home suffered significant damage as a result of the invasion of water and sewage.  Id.  Over a period of months, the homeowner tried to remedy the damage to her home without success.  Id.  About 10 months after the incident, she filed a formal complaint with the city.   Id.  After the city apparently failed to take responsibility for the “incident,” and about 20 months after the incident, the homeowner filed claims against the city for negligence and inverse condemnation.  Id.

The trial court dismissed the negligence claim based upon the homeowners’ failure to comply with Oregon’s strict tort claims notice provisions for suing governmental entities in tort.  Id.  It, however, allowed her inverse condemnation claim to continue, as it was not conditioned upon a statutory waiver of sovereign immunity.  See id.

As noted by the court, “[a]t trial, no witness could explain why the sewage backed up into plaintiff’s house when it did.”  Id. at 342.  “The two city workers who were hydrocleaning the sewers near plaintiff’s  house when the backup occurred explained that they did ‘everything by the book’ and that their equipment was ‘operating properly’ that day.”  Id. at 343.  Notably, a plumber who inspected the house and found nothing out of the ordinary with the home’s pre-incident plumbing system, provided that “backups sometimes occur if the hydrocleaning cannot clear a blockage in the main line, which can cause sewage water in the main line to backup into a lateral line running to a nearby house.”  Id.   He further “was generally aware of other sewer backups such as the one into plaintiff’s house, and he characterized them as ‘uncommon.'”  Id.  Similarly, one of the city workers involved was personally aware of another such sewage backup into a home.  Id.

Relying on Vokoun v. City of Lake Oswego, 335 Or 19, 56 P3d 396 (2002) (en banc), the trial court accepted the plaintiffs’ argument that to show the city’s requisite intent to physically invade her property “she had to show only that the backup into her house was the ‘natural and ordinary consequence’ of the city’s actions and that where, as here, there was no evidence of any other causes, the evidence was sufficient to go to the jury.”  Id. at 344.  The jury found for the plaintiff and awarded just compensation in the amount of $58,333.  Id.

The Oregon Court of Appeals was similarly persuaded by the plaintiff’s argument, affirming the trial court decision and stating as follows regarding satisfying the intent requirement:  “The question is not whether the harmful result occurs frequently; it is whether the result is the natural and ordinary consequence of the government’s action at the time and place where that action occurred.”  Id. at 345 (citing Dunn v. City of Milwaukie, 241 Or App 95, 102, 250 P3d 7 (2011)).   In other words, the court of appeals held that “the jury could infer the city’s intent from evidence that the city had carried out the cleaning according to normal procedures and that doing so in some areas of the city can cause sewer backups in private houses.”   Id.

Consistent with these facts, the Oregon Supreme Court found that the “[t]he conclusion most favorable to plaintiff on this record is that the intrusion of sewage water into one or more nearby houses was a known risk of hydrocleaning generally, but one that rarely came to pass.”  Id. at 361.  In applying its narrow reading of “natural and ordinary consequence” test as stated in Vokoun, the court, however, held that this was not enough; that the plaintiff did not show that the physical invasion of sewage was the “necessary, certain, predictable, or inevitable result” of the city’s actions.  Id.

The Oregon Supreme Court has obviously laid down an extremely high bar for physical invasion inverse condemnation claims in which specific intent cannot be shown.  Apparently, even when the government is engaged in an activity that is known to cause physical invasions of private property, if the frequency of such physical invasions is low, it can act without liability on a takings claim.  If the government knows that its actions will likely result in sewage exploding into 1 of out of every 1000 homes, and, in fact, its actions do cause such effect, does the government act with intent to physically invade that one home?  I believe a very good argument can be made that, yes, it does then act with the requisite intent.  I believe the trial court in this case and court of appeals would likely agree.  What about 1 in 100 homes? 1 in 10?  At what point would the Oregon Supreme Court be satisfied that the result of governmental action was “necessary, certain, predictable, or inevitable”?  The court states in a footnote that “[c]ertainty or inevitability, in this context, does not require–at least not, necessarily–regularity or frequency” and gives the example of flooding of particular property “substantially certain to occur on a seasonal or other intermittent basis.”  See id. at 356 n 13.  If this is the case, should not statistical “substantial certainty” be enough–that some percentage of a group of properties will be “naturally and ordinarily” invaded as a result of government action?

Also worth reading regarding this case is an insightful and entertaining post on Robert Thomas’s blog:  inversecondemnation.com.

In addition, reporting by The Oregonian provides some additional background.

Southwest Corridor Planning: Metro’s Next Move in High Capacity Transit

May 23, 2014 By in Eminent Domain, Land Use, Southwest Corridor, TriMet Projects, Uncategorized Tags: , , , , 1 Comment

Metro has set its sights on the “Southwest Corridor” as the region’s next area for construction of “high capacity transit,” meaning most likely light rail or rapid bus transit.  Such move was foretold by Metro’s 2009 High Capacity Transit Plan, which sets forth its vision and priority for high capacity transit projects across the Portland metropolitan area.

The Southwest Corridor, as currently envisioned, stretches from downtown Portland to Tualatin.  It centers on SW Barbur Blvd/99W for much of its route, working its way through Tigard, and then south through the Bridgeport area to downtown Tualatin.

The planning for the project is currently in its “refinement phase,” in which the stakeholders will zero in on a preferred mode of transit and preferred route.  “Recommended routes for further discussion” are set forth in Metro staff’s May 5, 2014 report. The Project’s published timeline indicates that the Project’s steering committee will make a final decision on design options in June 2014.

Whatever route and mode of high capacity transit is ultimately chosen, many properties, homes and businesses will likely be impacted.  While this Project appears to serve a legitimate public purpose, whether the owners of the impacted properties will receive the just compensation to which they are constitutionally-entitled is a wholly different matter.

 

The Government Comes Knocking: Evaluating “Offers” to Take Your Property

March 8, 2014 By in Basic Principles, Eminent Domain Tags: , , ,

In the event the government decides to take your property, you will most likely receive a visit from a “right of way agent” who will present you the government’s “offer” to acquire your property.  This post explores what that “offer” typically looks like and what next steps you need to think about.

What kind of communication from the government will accompany the offer?

The government must attempt to reach agreement with you on the fair market value of the property and its acquisition.  ORS 35.235(1).  Without such an attempt, the government cannot initiate a condemnation lawsuit.  ORS 35.245(1).  As part of this negotiation, the government must make you an unqualified offer based upon what the government contends is the just compensation for the property.  The offer will be in the form of a letter from the government or a private right of way agent with whom the government has contracted.

What is the government’s offer based upon?

In most cases, the government’s offer must be accompanied and supported by a written appraisal.  ORS 35.346(2).  However, if the government determines that the amount of just compensation is less than $20,000, it may provide you with a “written explanation of the bases and method” by which it arrived at fair market value, in place of a formal appraisal.

The offer mentions possible environmental issues. What is this about?

As part of the appraisal process, the government will often times conduct an environmental review of the targeted property.  This review is looking for evidence of possible environmental contamination stemming from present or past uses of the property.  A common example giving rise to governmental concern is the presence of an underground storage tank for petroleum products.  If the government determines that the property will require some level of environmental remediation, it may seek to have associated costs deducted from the determination of just compensation.

Am I entitled to relocation compensation?

Yes, property owners, as well as tenants, are often entitled to reimbursement for certain relocation and business reestablishment costs resulting from displacement from the taken property.  Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4601 et seq.; ORS 35.500 to 35.530.  Relocation compensation is determined by an administrative process different from the process used to determine just compensation for the taking of the property.

Am I entitled to loss of value to my business?

Technically, no.  In the event of a partial taking of property, however, the taking could affect your ability to use the property for a particular business purpose, which also happens to be its highest and best use—for example, a restaurant adjacent to a highway.  If the taking results in a less intensive highest and best use, you may be entitled to resulting damages.

Are there benefits to securing a team of experienced advisors in responding to the offer?

Yes, definitely.  A team of advisors experienced in condemnation matters can help you achieve just compensation, advise you on relocation issues, and assist you with tax planning in regard to the proceeds of condemnation.  Your team may include a condemnation attorney, appraiser, relocation specialist, real estate broker, and tax planner.  In certain circumstances, you may need to also enlist the services of, among others, surveyors, land use planners, architects and engineers.

How much time do I have to respond to the offer? Do I have to accept or reject the government’s offer within this time?

The government must give you at least 40 days to respond to the offer before filing a condemnation action.  ORS 35.346(1).  It is important to note, however, that you are not required to respond to the offer.  If you fail to respond, you will be deemed to have rejected the offer.  The government may then initiate the condemnation action, but negotiations will most likely continue regarding fair market value and the government’s acquisition of title up to and through the litigation process.

If I reject the offer or do not respond to it, will the government lower its offer?

No, the government generally cannot lower its offer as a negotiation strategy.  For practical purposes, the government’s initial offer represents a floor for the negotiations regarding just compensation.  As a matter of law, the government cannot lower the amount of its initial offer except upon an order of the court, and that order cannot be entered less than 60 days before trial.  ORS 35.346(2).

Should I obtain an independent appraisal?

Yes, in most circumstances, you should obtain an independent appraisal.  Though the appraiser contracted by the government is a professional and bound by professional standards, he or she is hired by the government.  You also need an analysis performed by an independent professional.  Further, if you know the government’s offer is imminent, obtaining an independent appraisal before receiving the offer will, in certain situations, provide you and your advisors the necessary information to develop a proper negotiation strategy.

Farmington Road Project: Washington County and Beaverton Taking Property

February 26, 2014 By in Eminent Domain, Washington County Projects Tags: , , , , 1 Comment

Washington County and the City of Beaverton are moving forward with their Farmington Road Project, which calls for the widening of Farmington Road from Murray Boulevard to Hocken Avenue.  As set forth on the Project’s website:

Farmington Road, between Murray Boulevard and Hocken Avenue, is a heavily-used four-lane section of roadway that lacks continuous bicycle and pedestrian facilities.

This project will make needed safety and traffic capacity improvements to this section of Farmington Road, for all modes of transportation.

Improvements include:

■   Widening the roadway to five lanes (two travel lanes in each direction with a center turn lane)

■   Continuous bicycle facilities

■   Continuous pedestrian facilities

■   Street lighting

■   Realign 141st and 142nd Avenues

An aerial strip map showing the extent of the takings and impacted properties is found here.  While this Project appears to serve a legitimate public purpose, whether the owners of the impacted properties will receive the just compensation to which they are constitutionally-entitled is a wholly different matter.

The Project’s published schedule indicates that the government has begun “right of way acquisition,” which will continue into the Fall of 2014.  Construction was slated to begin in the Spring of 2015, but has been accelerated to the Summer of 2014 according to recent reports.

Urban and Rural Reserves: Oregon Court of Appeals Reverses and Remands LCDC Order

February 20, 2014 By in Land Use, Oregon Case Law Tags: , ,

Today, in a 126-page, long-awaited opinion, the Oregon Court of Appeals reversed and remanded the Land Conservation and Development Commission’s order confirming the designation of urban and rural reserves by Metro and the counties of Clackamas, Multnomah and Washington.  Barkers Five, LLC v. Land Conservation and Development Commission (A152351).  The urban and rural reserve system was designed to manage growth in the Portland metropolitan area until 2060.

A synopsis of the decision can be found in today’s media release from the Court of Appeals.

Here’s an excerpt from the opinion (footnotes omitted):

This case concerns the designation of urban and rural reserves in the Portland metropolitan area that will guide its growth until 2060. Metro, in conjunction with Clackamas, Multnomah, and Washington counties, designated such reserves under a new process that had been established by the legislature in 2007, and, in June 2010, they submitted their designation to the Land Conservation and Development Commission (LCDC) for review. See generally ORS 197.626(1)(c), (f) (providing for LCDC review of urban and rural reserves). Ultimately, in August 2012–approximately one year after LCDC voted to acknowledge a revised submittal–LCDC issued its 156-page, single spaced acknowledgment order.

Twenty-two petitioners–including property owners, nonprofit and citizen 12 groups, and municipalities–seek judicial review of that order. In hundreds of pages of briefing, they raise assignments of error that are predicated on a record that consists of approximately 36,000 pages. Collectively, petitioners’ assignments of error range from fundamental methodological issues pertaining to LCDC’s understanding and application of the legal principles that govern the designation of reserves to the correctness of LCDC’s substantial evidence review of Metro and the counties’ designation of particular land as either urban or rural reserves. Simply stated, petitioners contend that LCDC’s order is unlawful in substance because, in reviewing Metro and the counties’ designation, LCDC misapplied the legal principles governing the designation of urban and rural reserves and circumscribing its review.

* * *

[W]e conclude that LCDC erred in four respects. In particular, LCDC erred in (1) approving Washington County’s misapplication of the rural reserve factors pertaining to agricultural land; (2) concluding that Multnomah County had adequately “considered” the rural reserve factors pertaining to Area 9D; (3) concluding that it has authority to affirm a local government’s decision where its findings are inadequate if the evidence “clearly supports” the decision; and (4) failing to meaningfully explain why–even in light of weighty countervailing evidence–Metro and the counties’ designation of Areas 4A to 4D (commonly referred to as Stafford) as urban reserves is supported by substantial evidence.

Accordingly, because LCDC’s order is unlawful in substance in various respects, we reverse and remand LCDC’s order for further action consistent with the principles expressed in this opinion. ORS 197.651(10)(a) (providing that “[t]he Court of Appeals shall reverse or remand the order only if the court finds the order is[,]” among other things, “[u]nlawful in substance”).

What effect this decision will have on the legislative efforts to craft a “grand bargain” regarding the urban and rural reserves designations and related urban growth boundary issues is unknown.  Stay tuned.

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