ORS 35.235
Agreement for compensation

  • status of resolution or ordinance of public condemner
  • status of action of private condemner
  • agreement effort not prerequisite

(1)

Subject to ORS 758.015 (Certificate of public convenience and necessity) and 836.050 (Condemnation of railroad or public utility property), 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 respect to the compensation to be paid therefor, and the damages, if any, for the taking thereof.

(2)

The resolution or ordinance of a public condemner is presumptive evidence of the public necessity of the proposed use, that the property is necessary therefor and that the proposed use, improvement or project is planned or located in a manner which will be most compatible with the greatest public good and the least private injury.

(3)

The commencement of an action to condemn property by a private condemner creates a disputable presumption of the necessity of the proposed use, that the property is necessary therefor and that the proposed use, improvement or project is planned or located in a manner which will be most compatible with the greatest public good and the least private injury.

(4)

The question of the validity of the disputable presumptions created in subsection (3) of this section, if raised, shall be determined by the court in a summary proceeding prior to trial.

(5)

It is not a prerequisite to the exercise of the right of eminent domain by the condemner to attempt first to agree with an owner or to allege or prove any effort to agree with such owner as to reasonable value, when such owner is at the time concealed within the state or, after reasonable effort by condemner, cannot be found within the state. [1971 c.741 §6; 1973 c.579 §1]

Source: Section 35.235 — Agreement for compensation; status of resolution or ordinance of public condemner; status of action of private condemner; agreement effort not prerequisite, https://www.­oregonlegislature.­gov/bills_laws/ors/ors035.­html.

Notes of Decisions

The condemner is mandated to negotiate with an owner prior to commencing an action. State Hwy. Comm. v. Freeman, 11 Or App 513, 504 P2d 133 (1972)

Across-the-fence method of appraisal was properly admitted as evidence in condemnation case as trial court has wide discretion in ruling on admissibility of evidence and any competent evidence tending to affect market value which would be considered by a purchaser or seller is admissible. Dept. of Trans. v. Southern Pacific Trans. Co., 89 Or App 344, 749 P2d 1233 (1988), Sup Ct review denied

Where provision in this section that public condemner’s taking resolution is presumptive evidence use will be compatible with greatest public good and least private injury, court is empowered to determine whether economic impact of taking is such that taking is abuse of discretion by condemner. Emerald PUD v. Pacificorp, 100 Or App 79, 784 P2d 1112 (1990), Sup Ct review denied, on reconsideration 101 Or App 48, 788 P2d 1034 (1990)

This section does not violate Article XI, section 12 of Oregon Constitution. Emerald PUD v. Pacificorp, 100 Or App 79, 784 P2d 1112 (1990), Sup Ct review denied, on reconsideration 101 Or App 48, 788 P2d 1034 (1990)

That resolution or ordinance of condemner is “presumptive evidence” means determination is presumed valid in absence of fraud, bad faith or abuse of discretion. Wiard Memorial Park District v. Wiard Community Pool, 183 Or App 448, 52 P3d 1080 (2002), Sup Ct review denied

35.015
Prohibition on condemnation of certain properties with intent to convey property to private party 35.018
Severability 35.205
Short title 35.215
Definitions for chapter 35.220
Precondemnation entry on real property 35.235
Agreement for compensation 35.245
Commencement of action 35.255
Content of complaint 35.265
Advance deposit by public condemner requiring immediate possession 35.275
Advance occupancy by private condemner 35.285
Distribution of deposits 35.295
Defendant’s answer 35.300
Offer of compromise 35.305
Conduct of trial 35.315
View of property by order of court 35.325
Effect of judgment 35.335
Effect of condemner’s abandonment of action 35.346
Offer to purchase required before filing action for condemnation 35.348
Immediate possession of property 35.350
Immediate possession of property by public body 35.352
Notice of immediate possession of property by public condemner 35.355
Appeal 35.365
Effect of withdrawal of award 35.375
Chapter as exclusive condemnation proceeding 35.385
Public purpose use required of condemner 35.390
Effect of failure of condemner to use property as required 35.395
Change in period of use 35.400
Designation of person to exercise right of repurchase 35.405
Designation of person to exercise right of repurchase by multiple owners 35.410
Right to contest change in public purpose use 35.415
Application of ORS 35.385 to 35.415 35.500
Definitions for ORS 35.500 to 35.530 35.505
Relocation within neighborhood 35.510
Duties of public entities acquiring real property 35.515
Required disclosures for business and farm operations 35.520
Decision on benefits 35.525
Construction 35.530
Federal law controls 35.550
Definitions for ORS 35.550 to 35.575 35.555
Determination of necessity 35.560
Action by district attorney 35.565
Procedure for condemnation 35.570
Payment of expenses of proceeding, value and damages 35.575
Precondemnation compensation not required 35.600
Application 35.605
Authorization to acquire adjoining property for roadways 35.610
Ordinance or resolution required 35.615
Restrictions on future use of property acquired adjacent to roadway 35.620
Acquisition of land adjoining road boundaries declared necessary 35.625
Procedure to ascertain compensation and damages
Green check means up to date. Up to date

Current through early 2024

§ 35.235’s source at oregon​.gov