2015 ORS 35.235¹
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]

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 condemners 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

Chapter 35

Notes of Decisions

Replace­ment value of prop­erty should not be considered unless prop­erty is unique or unless prop­erty taken performs legally necessary func­tion. State Bd. of Higher Educ. v. First Methodist Church, 6 Or App 492, 488 P2d 835 (1971)

Occupa­tion of land by condemner during eminent domain pro­ceed­ings does not constitute waiver by condemner of its right to abandon such pro­ceed­ings. Port of Newport v. Haydon, 10 Or App 271, 498 P2d 825 (1972)

Organiza­tion of prop­erty owners adjoining automobile raceway did not show in challenging citys grant of noise ordinance variance to raceway that it utilized eminent domain pro­ce­dures es­tab­lished by state law. Citizens Assn. of Portland v. Intern. Race­ways, 833 F2d 763 (1987)

Law Review Cita­tions

8 WLJ 261-268 (1972); 85 OLR 1063 (2006)


1 Legislative Counsel Committee, CHAPTER 35—Eminent Domain; Public Acquisition of Property, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors035.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 35, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano035.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.