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USA Statutes : oregon
Title : TITLE 31 HIGHWAYS, ROADS, BRIDGES AND FERRIES
Chapter : Chapter 376 Ways of Necessity; Special Ways; Pedestrian Malls
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As used in ORS
376.150 to 376.200:
(1) “Public road” means the entire right of way of any road over
which the public has the right of use or any right of way held by the
state or a political subdivision of the state for road purposes that is
not open for public use.
(2) “Way of necessity” means:
(a) A road established under ORS 376.150 to 376.200 to provide
motor vehicle access from a public road to land that would otherwise have
no motor vehicle access; or
(b) A route established under ORS 376.150 to 376.200 to provide
utility service access from an existing service location to a service
point that would otherwise have no utility service access. [1979 c.862
§1; 1989 c.674 §1](1) To establish a way of necessity under ORS 376.150 to
376.200, a landowner shall file a petition with the governing body of the
county in which the land is located.
(2) A petition filed under this section shall contain a drawing and
a narrative statement that contain all of the following information:
(a) The location and legal description of the property to be served
by the proposed way of necessity.
(b) The location of all public roads located in the vicinity of the
property to be served by the proposed way of necessity that are capable
of being used to provide access to the property. The petition shall
include the location of public roads that are not open for public use.
(c) A specific proposed location for the proposed way of necessity.
(d) Evidence showing the necessity for the establishment of a way
of necessity.
(e) Evidence that either:
(A) The proposed way of necessity does not connect to a public road
that has access rights acquired and limited by the state or county; or
(B) If the public road proposed for access by way of necessity has
the limited access rights, the state or county is willing to grant
permission to connect the proposed way of necessity to the public road.
(f) Evidence that the proposed way of necessity may be connected to
the public road safely.
(g) Evidence that the specific location proposed for the way of
necessity is the nearest practicable point for connection to a way of
necessity to a public road.
(h) The names and addresses of the persons owning the land across
which the way of necessity could be located.
(i) The petitioner’s proposal for the amount of compensation to
persons owning land across which the way of necessity is proposed to be
located.
(j) Evidence that the petitioner does not have an existing easement
or right to an easement to provide access to a public road.
(k) Evidence that the petitioner does not have any enforceable
access to a public road. [1979 c.862 §2; 1991 c.936 §2](1) Upon receipt of a petition for a way of
necessity filed under ORS 376.155, a county governing body shall:
(a) Provide for service of the petition on all persons owning land
across which the way of necessity could be located; and
(b) Direct the county engineer, county surveyor or other persons
appointed by the governing body to investigate the proposed way of
necessity and to submit a written report to the county governing body.
(2) The report under subsection (1) of this section shall include:
(a) Possible alternate routes for ways of necessity to the property;
(b) A determination of whether the proposed way of necessity meets
the requirements under ORS 376.150 to 376.200;
(c) The reasonableness of the way of necessity proposed in the
petition; and
(d) A recommendation for a specific location and width for a way of
necessity.
(3) Upon receipt of the report under subsection (2) of this
section, the county governing body shall:
(a) Provide a copy of the report to the petitioner; and
(b) Serve a copy of the petition and report on all persons owning
land across which the way of necessity is proposed to be located under
the report or the petition.
(4) Service of the petition and report under this section shall be
accomplished in the manner provided for service of summons in an action
at law. If the report includes a recommendation for a route different
than the route proposed in the petition, service on the affected parties
shall include a copy of the petition. [1979 c.862 §3] Upon receipt of a
petition for a way of necessity filed under ORS 376.155, a county
governing body may require the petitioner to deposit with the county an
amount of money or other security to use for payment of county expenses
incurred in the procedure for establishing the way of necessity or to
assure that the expenses will be paid. If a deposit of money is required
by the governing body, the deposit may be used to pay expenses and shall
be deducted from the expenses ordered to be paid under ORS 376.175. [1979
c.862 §3a](1) Any person owning land across which a way of necessity is
proposed to be established under ORS 376.150 to 376.200 may file an
answer controverting any matter in the petition or report and alleging
any new matter relevant to the proceedings. An answer filed under this
subsection must be filed within 30 days after receipt of service of the
petition and report. An answer shall be filed with the county governing
body. The county governing body shall provide for service of the answer
upon the petitioner in the manner provided for service of summons in an
action at law.
(2) If an answer is filed under this section, the petitioner may
file a reply controverting any matter presented in the answer. A reply
filed under this section must be filed within 10 days after receipt of
service of the answer by the petitioner. A reply shall be filed with the
county governing body. The county governing body shall provide for
service of the reply upon the person filing the answer in the manner
provided for service of summons in an action at law. [1979 c.862 §4](1) Upon consideration of the matters and
issues presented under ORS 376.150 to 376.200, the county governing body
shall determine whether or not a need has been demonstrated for the
granting of a way of necessity under ORS 376.150 to 376.200 and shall
enter an order granting or denying the way of necessity.
(2) Any order entered under this section shall:
(a) State whether the way of necessity is granted or denied;
(b) Declare as established any way of necessity that is granted;
(c) Describe the exact location and width of any way of necessity
established;
(d) Describe those uses that are permitted on any way of necessity
established;
(e) Direct the petitioner to pay costs and reasonable attorney fees
incurred by each owner of land whose land was subject to the petitioner’s
action for a way of necessity under ORS 376.150 to 376.200;
(f) Establish the amount of compensation due to any owner of land
across which any way of necessity has been established and direct the
petitioner to pay the compensation; and
(g) Establish the costs incurred by the county in the procedures
for the way of necessity under ORS 376.150 to 376.200 and direct the
petitioner to reimburse the county for those costs not already paid by
petitioner.
(3) An order entered under subsections (1) and (2) of this section
to provide for utility service, as set forth in ORS 376.150 (2)(b), shall
conform to affected utility policy and standards.
(4) A petitioner shall pay any costs the petitioner is directed to
pay under an order issued under this section within 60 days after entry
of the order. The petitioner is liable for any costs not paid within the
time established in this subsection. If more than one landowner joins in
a petition for a way of necessity under ORS 376.155, every petitioner
granted use of the way of necessity shall be jointly and severally liable
for any costs ordered to be paid.
(5) Any party to the action for a way of necessity may contest any
part of the order of the county governing body in an appeal filed with
the circuit court within 30 days after entry of the order of the county
governing body. [1979 c.862 §5; 1989 c.674 §2; 1991 c.936 §3] A way of necessity
established under ORS 376.150 to 376.200 shall:
(1) Be located to cause the least possible damage to land across
which it is located;
(2) Be fenced or gated if required by the county governing body;
(3) Not be connected to a public road in a location or manner that
creates a traffic hazard or decreases the safety on the public road;
(4) Be established only for uses in connection with the property
for which the way of necessity is sought;
(5) Not be subject to any use that is not described in the order
establishing the way of necessity;
(6) Not exceed 30 feet in width unless authorized by the county
governing body for engineering purposes;
(7) Not be connected to a public road where the rights of access to
the road have been acquired by the state or a county unless the state or
governing body of the county grants permission for the connection;
(8) Not be established if the property for which the way of
necessity is sought has an existing enforceable access to a public road;
(9) Not be established if the petitioner for the way of necessity
could acquire an easement for access to a public road through other legal
action;
(10) Not be established for land that has been subdivided or
partitioned in violation of ORS chapter 92;
(11) Not be established over land owned by the state or a political
subdivision of the state unless permission is granted for the way of
necessity under ORS 376.185; and
(12) Not be established for any land if the owner of the land had
knowingly eliminated access to all public roads from the land by the sale
of other land owned by the landowner. [1979 c.862 §6; 1991 c.936 §5; 1993
c.18 §91] (1) A way of necessity
may not be established under ORS 376.150 to 376.200 across land owned by
the state or a political subdivision of the state without the consent of
the governing body of the political subdivision or of the appropriate
agency of the state. The governing body of a political subdivision of
this state and any agency of the state shall not unreasonably withhold
consent required under this subsection.
(2) Whenever a way of necessity is sought over land owned by the
state or a political subdivision of the state, a copy of the petition for
the way of necessity, of the county report and of the notice of hearing
shall be forwarded by certified mail to:
(a) If the political subdivision owns the land, the governing body
of the political subdivision.
(b) If the state owns the land, to the Department of State Lands
and to each agency of the state that has use or control of the land.
[1979 c.862 §7; 1993 c.98 §17](1) A way of necessity that is established under ORS
376.150 to 376.200 shall be maintained and kept passable by the person
owning the land for which the way of necessity is established. This
subsection does not require the person to provide for maintenance of the
way of necessity for uses or persons not specifically provided in the
order establishing the way of necessity.
(2) A way of necessity established under ORS 376.150 to 376.200
shall not be altered or vacated except by the governing body of the
county in which it is located and in a manner provided by law for the
alteration or vacation of a public road.
(3) No county shall be required to work, improve, maintain or
repair a way of necessity. [1979 c.862 §8; 1991 c.936 §5]Land for which a way of necessity is
established under ORS 376.150 to 376.200 shall not be subsequently
partitioned without the approval of the city or county governing body
which has partitioning authority. [1979 c.862 §9] (1)
Notwithstanding any other provision of ORS 376.150 to 376.200, a way of
necessity for nonmotorized conveyance is established to any parcel that
meets the criteria described in ORS 308A.125.
(2)(a) Notwithstanding any other provision of ORS 376.150 to
376.200, a way of necessity is established to a historic cemetery listed
in accordance with the provisions of ORS 97.782.
(b) The way of necessity established under paragraph (a) of this
subsection shall:
(A) Be designated by the owner of the land over which the way of
necessity passes; and
(B) Be accessible, at reasonable times to be designated by the
property owner for visitation, maintenance or research purposes, to the
owner of the historic cemetery, to descendants of those persons buried in
the historic cemetery and to persons interested in historical research.
The reasonableness of the times designated by the property owner shall be
based on the need of the property owner to make use of the property and
the need of the historic cemetery visitors for family visitation,
maintenance or research access to the historic cemetery. [1999 c.314 §46;
2001 c.364 §1; 2003 c.173 §9](1) Notwithstanding any provision of ORS 376.150 to 376.200, a county
governing body may adopt an ordinance removing the county governing body
from jurisdiction over the establishment of ways of necessity under ORS
376.150 to 376.200.
(2) If the county governing body adopts an ordinance described in
subsection (1) of this section, the circuit court of that county shall
have jurisdiction of the establishment of ways of necessity for that
county. Except as otherwise provided in this section, a court with
jurisdiction of the establishment of ways of necessity under this section
shall follow the procedures for establishment of a way of necessity
provided under ORS 376.150 to 376.200. The court may adopt local court
rules to supplement the procedures provided under ORS 376.150 to 376.200.
(3) Notwithstanding ORS 376.175, if jurisdiction for establishment
of ways of necessity is in the circuit court as provided under this
section, an appeal from the decision of the court shall be to the Court
of Appeals.
(4) Notwithstanding ORS 376.160 (1), if jurisdiction for
establishment of ways of necessity is in the circuit court as provided
under this section, upon filing a petition the petitioner shall:
(a) Provide for service of the petition on all persons owning land
across which the way of necessity could be located; and
(b) Post a bond or security deposit with the court clerk in an
amount required by the court to pay for the cost of the investigation and
report under subsection (5) of this section.
(5) If jurisdiction for establishment of ways of necessity is in
the circuit court as provided under this section, upon receipt of a
petition the court shall appoint a person to investigate the proposed way
of necessity and submit a written report to the court and the petitioner.
The cost of the investigation and report shall be charged against the
bond or security deposit posted under subsection (4) of this section. If
the bond or security deposit is more than the actual cost of the
investigation and report, the difference shall be refunded to the
petitioner. If the bond or security deposit is less than the actual cost
of the investigation and report, the petitioner shall pay to the county
governing body the amount of the deficiency. A judgment of the court
shall not become final until the full cost of the investigation and
report has been paid.
(6) Notwithstanding ORS 376.160 (3), if jurisdiction for
establishment of ways of necessity is in the circuit court as provided
under this section, upon receipt of the report under subsection (5) of
this section, the petitioner shall serve a copy of the petition and
report on all persons owning land across which the way of necessity is
proposed to be located under the petition or report. [1979 c.862 §10;
1995 c.265 §1]FOREST ROADS (1) It is declared that a
substantial part of the forest resources of this state are now left
unharvested and are lost by reason of the excessive cost of
transportation thereof to market; that substantial forest areas can be
economically managed, harvested and the products thereof transported to
market only by use of certain county and public roads which the counties
of this state are unable to construct, improve and maintain so as to
enable their safe and economical use for such purposes.
(2) It is declared to be the public policy of this state to
conserve and develop its natural resources, to encourage and facilitate
the transportation of products of the forest and the salvage and
utilization of such products now being wasted, and to develop and improve
certain county and other public roads for such purposes. As used in ORS
376.305 to 376.390:
(1) “Forest road” means any county or public road, or part thereof,
outside the corporate limits of a city, which is within or extends into
or toward a mountainous or timbered area, and which is under the control
and supervision of a county court of this state.
(2) “Contract forest road” means a forest road improved or
maintained pursuant to a contract made under ORS 376.305 to 376.390.
(3) “Logging operator” means any person having the right to cut and
remove timber or forest products in this state, or who is engaged or
desirous of engaging in this state in the transportation of forest
products, by motor vehicle, to market or processing plant.
(4) “Forest road contractor” means a logging operator who has
entered into a contract under ORS 376.305 to 376.390 to improve or
maintain, or improve and maintain, a contract forest road.
(5) “Motor vehicle” includes any motor vehicle with or without a
trailer or semitrailer.
(6) “Person” means any person, firm or corporation, or group or
combination thereof. (1) Any
logging operator desiring to become a forest road contractor may make
application to the county court having jurisdiction and control over a
forest road, to improve or maintain, or improve and maintain, such road.
(2) The application shall set forth:
(a) A description of the road and the termini thereof.
(b) If the applicant proposes to improve the road, a general
statement of the improvements proposed to be made.
(c) If the applicant proposes to maintain the road, a general
description of the maintenance work proposed to be done.
(3) The application shall be verified and signed by the applicant
and filed in the office of the county clerk, together with an affidavit
showing service thereof, either personally, by registered mail or by
certified mail with return receipt, on the Public Utility Commission and
on the Department of Transportation. [Amended by 1991 c.249 §29](1) The county court shall:
(a) Fix a date for hearing the application.
(b) Cause a notice of the hearing to be posted at the place where
the county court sessions are held and at three public places in the
vicinity of the forest road specified in the application, for at least 30
days immediately prior to the date set for hearing.
(c) Cause notice of the hearing to be published in a newspaper
published in the county and having general circulation therein, but if
there is no such newspaper published in the county, then in any newspaper
having general circulation in the county, for not less than once a week
for two weeks immediately prior to the date set for the hearing.
(2) A copy of the notice shall be served personally, by registered
mail or by certified mail with return receipt on the Public Utility
Commission and on the Department of Transportation at least 15 days prior
to the date set for hearing.
(3) Proof that the notice has been posted and served shall be made
by affidavit and filed in the proceeding. [Amended by 1991 c.249 §30] The notice of hearing shall
be signed by the county clerk and shall state:
(1) The date the application was filed.
(2) The name of the applicant.
(3) The description of the forest road proposed to be improved or
maintained, or both.
(4) The proposal for improvement or maintenance, or both, as set
forth in the application.
(5) The time and place of hearing.
(6) That all persons interested may appear and be heard for or
against the application. After the
hearing, the county court may, in its discretion, approve or disapprove
the application. If the application is approved, a copy of the approving
order together with a copy of the findings of the county court shall be
served by the county clerk by registered mail or by certified mail with
return receipt within 10 days after the order is made, upon the Public
Utility Commission and the Department of Transportation. The county clerk
shall file in the proceeding the certificate of such service. [Amended by
1991 c.249 §31] Any county court that has
approved any such application may contract with the applicant, in
accordance with ORS 376.305 to 376.390, and without advertisement for
bids, for the improvement or maintenance, or both, of the forest road
described in the application. The terms of the contract as to
specifications of the work shall not be limited by the proposal for
improvement or maintenance as contained in the application. (1) Before
execution of any contract under ORS 376.305 to 376.390, the forest road
contractor shall execute and file with the county clerk a performance
bond in an amount to be fixed by the county court.
(2) The forest road contractor shall furnish, and have in force
during the entire term of the contract, public liability and property
damage insurance covering the operation and the operation of agents and
subcontractors of the forest road contractor in the improvement,
maintenance and use of the contract forest road in any amount that may be
fixed in the contract, but the public liability insurance shall be for an
amount of not less than $50,000 for bodily injuries to or death of one
person and, subject to that minimum amount for each person, not less than
$100,000 for bodily injuries to or death of more than one person in any
one accident, and the property damage insurance shall be for an amount of
not less than $5,000 for injury to or destruction of property in any one
accident. [Amended by 1953 c.370 §5; 1957 c.650 §14; 1983 c.740 §121] Every contract entered
into pursuant to ORS 376.305 to 376.390 shall:
(1) Describe the road and the termini thereof.
(2) Specify the width of the roadbed and contain reasonably
complete specifications, prepared by the county roadmaster or other
competent person, of the improvement and maintenance work to be done.
(3) Specify the time within which the improvement work other than
maintenance shall be completed.
(4) Contain such provisions pertaining to maintenance as may be
agreed upon by the parties.
(5) Obligate the forest road contractor to furnish all labor and
materials required for the work the contractor has contracted to do.
(6) Provide that the same rights and privileges on the contract
forest road as are available to the forest road contractor are available
to any other logging operator:
(a) Upon approval by the county court;
(b) Upon the logging operator furnishing insurance as provided in
ORS 376.340;
(c) Upon the logging operator reimbursing the forest road
contractor for an equitable portion of the construction costs, if any,
borne by the forest road contractor; and
(d) Upon the equitable sharing of the logging operator with the
forest road contractor in the costs of maintaining the road, provision
being made for either the specific rates therefor per 1,000 feet board
measure of timber or equivalent of forest products transported over the
road or, in the alternative, a formula for determining such rates with a
provision for arbitration under ORS 36.600 to 36.740, in the event of
disagreement between the forest road contractor and another logging
operator respecting the application of the formula. [Amended by 2003
c.598 §41] One copy of the
contract shall be filed with the county clerk, one with the Public
Utility Commission and one with the Department of Transportation.(1) During such term as may be specified in the contract, the
forest road contractor and agents and subcontractors of the forest road
contractor have the right and privilege to:
(a) Use and operate over the contract forest road, motor vehicles
limited as to wheel base, weights, dimensions, tire widths and tire
surfaces only as specified in the contract.
(b) Transport forest products upon such motor vehicles over the
road, with loads limited as to gross weights, axle load weights, tire
load weights, and load dimensions and heights only as specified in the
contract.
(2) Whenever any forest road contractor operates any motor vehicle
having a size or weight prohibited by or in excess of the limitations
contained in any law pertaining to state highways, on a contract forest
road which crosses a state highway, the Department of Transportation may
adopt rules and regulations and issue permits for said motor vehicle to
cross said state highway in the use of such contract forest road. Such
rules and regulations and such permits may include, but need not be
limited to, provisions for reinforcing and strengthening the highway and
for the installation of signs and signals, and such other requirements as
the Department of Transportation may deem necessary for the preservation
of the highway and for the safety and best interest of the public. All
construction and installations under such permits shall be under the
supervision of the Department of Transportation and at the expense of the
forest road contractor. [Amended by 1953 c.370 §5] In
the event the forest road contractor is authorized by the provisions of
the contract to operate vehicles or combinations of vehicles, including
any load thereon, of any size or description not otherwise authorized by
law, the county court shall erect and maintain signs giving notice
thereof in a conspicuous manner and placed at each end of the forest road
or section of forest road covered by the contract, and at such other
places as may be necessary to inform and warn the public.
During the term of the forest road contract, all exemptions, privileges
and rights granted or provided for by ORS 376.305 to 376.390, and by the
provisions of the contract made pursuant thereto, are limited to the
forest road contractor, the agents and subcontractors of the forest road
contractor, and to such other logging operators as may meet the
provisions required to be included in the contract by ORS 376.345 (6).
This section does not, however, prevent the use of the forest contract
road by the general public. [Amended by 1953 c.370 §5] (1) All
improvement and maintenance work done pursuant to a forest road contract
shall be under the supervision of the county roadmaster of the
contracting county.
(2) On request of the forest road contractor, the county roadmaster
shall inspect any completed segment of the contract forest road, and if
the county roadmaster determines the work to be in compliance with the
contract the county roadmaster shall approve the completion in writing,
deliver a copy of the approval to the contractor and file a copy with the
county clerk. Except in case of fraud, the approval of the county
roadmaster shall be conclusive proof that the work approved is in
compliance with the contract. The liability
of any forest road contractor for failure to improve or maintain the
contract forest road or any bridge or culvert thereon in accordance with
the contract is limited to the contracting county. Any forest road
contractor may assign the forest road contract in its entirety, with
approval of the contracting county court and not otherwise. A copy of
each assignment shall be filed with the county clerk. A copy of the
assignment together with a copy of the resolution of the county court
approving the assignment shall be delivered or sent by registered mail or
by certified mail with return receipt to the Public Utility Commission
and the Department of Transportation. [Amended by 1991 c.249 §32]All fines and penalties collected, or
security deposits forfeited, under ORS 376.990, shall be paid by the
court or judicial officer collecting the same to the county treasurer of
the county within which the violation occurred. The county treasurer
shall credit moneys so received to the general road fund of the county.
[Amended by 1991 c.67 §92; 1999 c.1051 §270]
Nothing in ORS 376.305 to 376.390 relieves the forest road contractor or
agents or subcontractors of the forest road contractor from payment of
any taxes or fees prescribed by law, except that, with respect to a motor
vehicle operated upon a contract forest road by a forest road contractor,
or agent or subcontractor of the forest road contractor, the road tax
mileage fees prescribed by ORS 825.474, 825.476, 825.480 and 825.484
shall be assessed upon the declared combined weight of the motor vehicle
or 76,000 pounds, whichever is less. [Amended by 1953 c.370 §5]CONDEMNATION OF LAND FOR FOREST PRODUCT WAYS (1) Any
person, firm or corporation that requires land for transportation of the
raw products of the forest may file with the county clerk of the county
in which the land is located:
(a) A statement showing the approximate route of any proposed road
or railway and a general description of the tract that the road or
railway may travel.
(b) At the time of filing the statement, a bond in such sum as may
be fixed by order of the county court, conditioned upon the payment to
the owners of the lands required for the road or railway of any and all
damage that the owners may sustain by reason of entry upon the land for
the survey or location of the road or way.
(2) When the bond has been filed, such person, firm or corporation
shall have the right to enter upon the tract for the purpose of
examining, locating or surveying the line of the road or logging
railroad. [Amended by 2003 c.14 §162] As used in ORS 376.505 to 376.540 “transportation of the raw
products of the forest” includes ingress to and egress from forestland
solely for the purpose of management, protection, growth and conservation
of forest crops by thinning, reseeding, brush control and other forest
management operations. [1975 c.723 §2] Any
such person, firm or corporation has the right to acquire and own all
lands reasonably necessary for the logging road or way to promote the
transportation of logs or the raw products of the forest. If such person,
firm or corporation is unable to agree with the owners of the land over
which the logging railroad is necessary, as to the amount of compensation
to be paid therefor, such person, firm or corporation has the right to
condemn so much of the land necessary for the logging railroad, road or
ways as may be necessary for the use thereof, and may maintain the suit
for condemnation in the circuit court of the county wherein the lands are
located. No land shall be taken until compensation has been assessed and
tendered. No more lands shall be
appropriated under ORS 376.505 to 376.540 than are reasonably necessary
for the purposes specified therein. No building nor the land upon which
it is situated, which is exempt from execution as a homestead under the
laws of the state, nor any land belonging to the homestead owner within
100 feet of the building, shall be so appropriated. Procedure for condemnation under
ORS 376.505 to 376.540 shall be as set forth in ORS chapter 35. [Amended
by 1971 c.741 §23] In assessing damages under ORS
376.510, full compensation shall be allowed for the value of the land
appropriated and all other injury and damage which the owner may suffer
by reason of the appropriation of the land. The person, firm or corporation
appropriating land under ORS 376.505 to 376.540, and the successors and
assigns of the person, firm or corporation, shall fence with a good and
suitable fence both sides of the lands appropriated, in the event the
lands are used for agricultural purposes, and shall take such other means
and precautions reasonably necessary to protect the adjoining lands not
appropriated from damage or injury by reason of the use of the lands
appropriated. (1) Any
property acquired under ORS 376.505 to 376.540 shall be used exclusively
for the purposes set forth therein or such incidental purposes as may be
necessary to the continued carrying out of such purposes.
(2) Whenever the use of property as contemplated in ORS 376.505 to
376.540 ceases for a period of two years, it shall revert to the original
owner, or the heirs or assigns of the original owner, but in assessing
damages the amount allowed shall not be in any manner lessened or
decreased by reason of the possibility that the lands may so revert to
their original owner.
(3) The limitations set out in this section shall not apply to or
run against any interest acquired by the state. Any logging road which is necessary for the
transportation of a single tract of timber is within ORS 376.505 to
376.540, whether it is a common carrier or otherwise. Such road is not
under the jurisdiction of the Department of Transportation unless the
owners thereof declare it a common carrier. [Amended by 1997 c.275 §5]MISCELLANEOUS WAYS(1) When authorized by the
Department of State Lands, it is lawful for any person, firm or
corporation to construct, maintain and operate a skyline, high lead
logging line, ferry skyline or cable footbridge across any navigable
river, bay, inlet or other navigable waters within the state, not
inconsistent with any Act of Congress regulating the construction of
bridges across navigable waters. The structures shall be so constructed
as not to interfere unnecessarily with the navigation of such navigable
waters.
(2) The Department of State Lands may make and enforce such
regulations and restrictions as it deems necessary to carry out the
purposes of this section and may make reasonable charges for any services
rendered in connection therewith.PEDESTRIAN MALLS Unless the context
otherwise requires, the definitions contained in this section shall
govern the construction of ORS 376.705 to 376.825.
(1) “City” includes every county, city, and city and county within
this state. “The city” means the particular county, city, or city and
county, acting pursuant to ORS 376.705 to 376.825.
(2) “Legislative body” means the legislative body of the city.
(3) “Street” as used in the definitions of the terms “city
streets,” “mall intersection” and “intersecting streets,” defined in
subsections (4), (6) and (7) of this section, means any public street,
road, highway, alley, land, court, way or place of any nature open to the
use of the public.
(4) “City street,” as used with regard to streets located within a
city or city and county, means any street located within the city or city
and county, except a freeway, state highway, or county highway. “City
street,” as used with regard to streets located within a county, means
any street, located within the county, except a throughway as defined in
ORS 374.010 or state highway as defined in ORS 373.010.
(5) “Pedestrian mall” means one or more city streets, or portions
thereof, on which vehicular traffic is or is to be restricted in whole or
in part and which is or is to be used exclusively or primarily for
pedestrian travel.
(6) “Mall intersection” means any intersection of a city street
constituting a part of a pedestrian mall with any street, which
intersection is itself part of the pedestrian mall.
(7) “Intersecting street” means any street which meets or crosses a
pedestrian mall at a mall intersection but includes only those portions
thereof on either side of a mall intersection which lie between the mall
intersection and the first intersection of the intersecting street with a
public street or highway open to vehicular traffic.
(8) “Assessment roll” means the assessment roll or rolls used by
the county for purposes of city ad valorem taxes on real property.
(9) “Improvements” means the improvements referred to in ORS
376.720 (1). [1961 c.666 §2] (1) The Legislative
Assembly hereby finds and declares that in certain areas in cities, and
particularly in retail shopping areas thereof, there is need to separate
pedestrian travel from vehicular travel and that such separation is
necessary to protect the public safety or otherwise to serve the public
interest and convenience. The Legislative Assembly further finds and
declares that such objective can, in part, be accomplished by the
establishment of pedestrian malls pursuant to ORS 376.705 to 376.825.
(2) ORS 376.705 to 376.825 may be cited as the Pedestrian Mall Law
of 1961. [1961 c.666 §§1,3](1) ORS 376.705 to 376.825 and all of their provisions shall
be liberally construed to the end that their purpose may be effective.
(2) Any proceedings taken pursuant to ORS 376.705 to 376.825 shall
not be held invalid for failure to comply with the provisions of ORS
376.705 to 376.825, if the acts done and proceedings taken are not
invalid under the state or federal constitutions. [Enacted as part of
1961 c.666 §5] (1) The
legislative body of a city shall have the power:
(a) To establish pedestrian malls.
(b) To prohibit, in whole or in part, vehicular traffic on a
pedestrian mall.
(c) To pay, from general funds of the city or other available
moneys or from the proceeds of assessments levied on lands benefited by
the establishment of a pedestrian mall, the damages, if any, allowed or
awarded to any property owner by reason of the establishment of a
pedestrian mall.
(d) To construct on city streets which have been or will be
established as a pedestrian mall improvements of any kind or nature
necessary or convenient to the operation of such city streets as a
pedestrian mall, including but not limited to paving, sidewalks, curbs,
gutters, sewers, drainage works, street lighting facilities, fire
protection facilities, flood protection facilities, water distribution
facilities, vehicular parking areas, retaining walls, landscaping, tree
planting, child care facilities, display facilities, information booth,
public assembly facilities and other structures, works or improvements
necessary or convenient to serve members of the public using such
pedestrian mall, including the reconstruction or relocation of existing
city-owned works, improvements or facilities on such city streets.
(e) To pay, from general funds of the city or other available
moneys or from the proceeds of assessments levied on property benefited
by any such improvements, the whole or any portion of the cost of such
improvements.
(f) To do any and all other acts necessary or convenient for the
accomplishment of the purposes of ORS 376.705 to 376.825, including the
power to rent, lease or license to any individual firm or corporation any
portion of the pedestrian mall for service concessions, commercial uses
or otherwise, providing that in any term of use exceeding 60 days, the
city shall first advertise for bids therefor by publication not less than
once a week for two consecutive weeks in a newspaper of general
circulation in the city, making two publications thereof.
(2) The powers granted in ORS 376.705 to 376.825 to prohibit, in
whole or in part, vehicular traffic on any city street shall be in
addition to and not limited by the powers granted by any other law. [1961
c.666 §4; subsection (2) enacted as part of 1961 c.666 §5; 1971 c.506 §1]When the legislative body shall determine that the public
interest and convenience require the establishment of a pedestrian mall
and that vehicular traffic will not be unduly inconvenienced thereby, it
may adopt a resolution declaring its intention to establish such
pedestrian mall. Such resolution shall contain:
(1) The determination and declaration referred to above.
(2) A general description of the city streets, or portions thereof,
which are proposed to be established as a pedestrian mall.
(3) A general description of the mall intersections.
(4) A general description of the intersecting streets.
(5) A statement that the legislative body proposes to adopt an
ordinance prohibiting, in whole or in part, vehicular traffic on such
pedestrian mall. If vehicular traffic is proposed to be prohibited only
in part, the resolution shall also contain a general statement of the
exceptions proposed to be made. Such exceptions may include exceptions in
favor of public, emergency, utility and other classes of vehicles, may
include exceptions in favor of all or certain classes of vehicles during
certain days or during portions of days, and may include other exceptions
of any kind or nature.
(6) A general statement of the source or sources of moneys proposed
to be used to pay damages, if any, allowed or awarded to any property
owner by reason of the establishment of the pedestrian mall.
(7) A day, hour and place for the hearing by the legislative body
of protests and objections to the establishment of the proposed
pedestrian mall, and a statement that any and all persons having any
objection to the establishment of the proposed pedestrian mall may file a
written protest with the city recorder at any time not later than the
hour so fixed for the hearing.
(8) A statement that any person owning or having any legal or
equitable interest in any real property which might suffer legal damage
by reason of the establishment of the proposed pedestrian mall may file a
written claim of damages with the city recorder at any time not later
than the hour so fixed for hearing; that such written claim must describe
the real property as to which the claim is made, must state the exact
nature of the claimant’s interest therein, must state the nature of the
claimed damage thereto, and must state the amount of damages claimed.
[1961 c.666 §6] In
such resolution any street may be described by referring thereto by its
lawful or official name, or the name by which it is commonly known, and
the pedestrian mall, the mall intersections and the intersecting streets
may be described by reference to a map or plat thereof on file in the
office of the city recorder. [1961 c.666 §7]In such resolution the
legislative body may propose to pay the whole or any part of damages
based on claims filed pursuant to ORS 376.755 (2), if any, allowed or
awarded to any property owner by reason of the establishment of the
pedestrian mall from the proceeds of assessments levied upon lands
benefited by the establishment of the pedestrian mall. In such cases the
resolution shall also contain:
(1) General description of the district (which may consist of
noncontiguous portions) within which lie the lands deemed by the
legislative body to be benefited by the establishment of the proposed
pedestrian mall. Such district may be described by metes and bounds.
(2) A statement that an assessment will be levied pursuant to ORS
376.705 to 376.825 to pay the whole or a stated portion of the damages
based on claims filed pursuant to ORS 376.755 (2), if any, allowed or
awarded to any property owner by reason of the establishment of such
pedestrian mall and the costs and expenses in connection with proceedings
or actions taken pursuant to ORS 376.705 to 376.825.
(3) If bonds are to be issued, a statement that bonds to represent
unpaid assessments will be issued, and the interest rate, or maximum
interest rate, and term, or maximum term, of any such bonds. [1961 c.666
§8] If,
in connection with the initial establishment of a pedestrian mall, the
legislative body proposes to make any improvements of the kind or type
referred to in ORS 376.720 (1)(d), such resolution shall also contain:
(1) A general description of the improvements proposed to be made.
Such description may be made (but is not required to be made) in any
manner permitted or provided in any law under which such improvements are
to be made or financed.
(2) A general statement of the source or sources of moneys proposed
to be used to pay the costs and expenses of such improvements. [1961
c.666 §9] (1) The resolution
of intention shall be published in a newspaper of general circulation
published within the county, city or city and county, as the case may be.
The first publication shall be not less than 60 days prior to the date
fixed therein for hearing. In a city where no such newspaper is
published, the resolution shall instead be so published in a newspaper of
general circulation published in the county in which the city is located.
(2) Copies of the resolution headed “Notice of Intention to
Establish a Pedestrian Mall” in letters at least one-half inch in height
shall be posted not more than 300 feet apart as follows:
(a) On all city streets, or portions thereof, proposed to be
established as a pedestrian mall.
(b) On all intersecting streets.
(c) If assessments are to be levied as contemplated by ORS 376.735,
then upon all open streets within the district described in the
resolution pursuant to such section.
(3) Copies shall be posted not less than 60 days prior to the
hearing. [1961 c.666 §§10,11; 2003 c.14 §163] (1)
A copy of the resolution shall be mailed, postage prepaid, not less than
60 days prior to the hearing to each person to whom any of the following
described lands is assessed as shown on the last equalized assessment
roll, at the address of the person as shown upon such roll, and to any
person, whether owner in fee or having a lien upon, or legal or equitable
interest in, any of such lands whose name and address and a designation
of the land in which the person is interested is on file in the office of
the city clerk or county clerk, as the case may be. Such lands are as
follows:
(a) All parcels of land abutting upon any portion of the pedestrian
mall or any portion of any intersecting street.
(b) If assessments are to be levied as contemplated by ORS 376.735,
then all parcels of land within the assessment district described in the
resolution pursuant to such section.
(2) The legislative body may determine that such resolution shall
also be mailed to such other persons as it may specify. [1961 c.666 §12](1) Not later than the hour set for hearing any interested
person may, severally or with others, file with the city recorder written
objection to the establishment of the proposed pedestrian mall or to the
extent of any district described pursuant to ORS 376.735, or both. Any
protest or objection may be withdrawn at any time by written notice of
such withdrawal filed with the city recorder with the same effect as if
it had never been made.
(2) Not later than the hour set for hearing any person owning, or
having any legal or equitable interest in, any real property which might
suffer legal damage by reason of the establishment of the proposed
pedestrian mall may file with the city recorder a written claim of
damages. Such written claim must describe the real property as to which
the claim is made, must state the exact nature of the claimant’s interest
therein, must state the nature of the claimed damage thereto, and must
state the amount of damages claimed. Any such claim may be withdrawn by
the claimant at any time by written withdrawal with the same effect as if
it had never been filed.
(3) Anything in ORS 376.705 to 376.825 to the contrary
notwithstanding, nothing in ORS 376.705 to 376.825 shall be construed or
interpreted as creating any right in any person to damages or
compensation by reason of the establishment of a pedestrian mall, it
being the intention of the Legislative Assembly in enacting ORS 376.705
to 376.825 to provide an orderly method for the determination and payment
only of such damages and compensation as are required by the
Constitutions of the State of Oregon and the United States of America. In
this connection the Legislative Assembly hereby expressly declares that
it is its intention that to the extent to which the establishment of a
pedestrian mall is justifiable as an exercise of the police power for
which no compensation is constitutionally required, no damages or
compensation shall be allowed in any action. [1961 c.666 §§13,14,24] (1) If the owners of
lands abutting on the proposed pedestrian mall representing 10 percent of
the frontage on the proposed pedestrian mall have made written objection
to the establishment of the proposed pedestrian mall, the legislative
body shall so find and shall terminate the proceedings for such
establishment. In such event no proceeding under ORS 376.705 to 376.825
for the establishment of the same or substantially the same pedestrian
mall shall be commenced within one year after such termination.
(2) If assessments are to be levied as contemplated by ORS 376.735,
then if the owners of more than 10 percent of the area of land included
within the district described in the resolution of intention and subject
to assessment have made written objection to the establishment of the
proposed pedestrian mall, the legislative body shall so find and in that
event the legislative body may continue with proceedings for the
establishment of the pedestrian mall but shall have no power to make any
assessment upon benefited property to pay damages. In such event no
proceeding under ORS 376.705 to 376.825 for the levy of assessments upon
benefited property to pay damages in connection with the establishment of
the same or substantially the same pedestrian mall shall be commenced
within one year after such finding. [1961 c.666 §§16,17](1) If assessments are to be levied as
contemplated by ORS 376.735, then at the hearing the legislative body may
change the boundaries of the proposed district by adding thereto land
which in its opinion will be benefited by the establishment of the
pedestrian mall or by excluding from the district lands which in its
opinion will not be so benefited. If the legislative body proposes any
such change it shall take proceedings as required by this section and
shall continue the hearing to the time fixed for hearing objections to
the proposed change.
(2) No such change shall be made except after notice of intention
to do so, given by at least one insertion in the newspaper in which the
resolution of intention was published, describing the proposed change and
specifying the time for hearing objections, which shall not be less than
30 days after publication of the notice. If the change proposed is one to
include additional land in the district, a copy of such notice shall be
mailed to each person to whom land proposed to be added is assessed as
shown on the last equalized assessment roll, at the address of the person
as shown on such roll, and to any person, whether owner in fee or having
a lien upon, or legal or equitable interest in, any such lands whose name
and address and a designation of the land in which the person is
interested is on file in the office of the county clerk. Such notice
shall be mailed at least 25 days prior to the time set for hearing
objections.
(3) Written objection to any proposed changes may be filed with the
city recorder at any time up to the hour fixed for hearing objections to
such changes. [1961 c.666 §18] (1) At the hearing on
the resolution of intention the legislative body may allow any claim for
damages made pursuant to ORS 376.755 (2). Any such allowance shall be for
the full amount of damages claimed in the written claim except that the
legislative body, with the written consent of the claimant, may allow a
claim for a lesser amount.
(2) The right of any claimant to payment of the amount of any
allowed claim shall be contingent upon the final establishment of the
pedestrian mall but all allowed claims must be paid by the city, from
such source as the legislative body may determine, before vehicular
traffic is prohibited, in whole or in part, on the pedestrian mall,
pursuant to ORS 376.705 to 376.825. [1961 c.666 §20](1) At the hearing all objections and protests shall be
heard and considered, and all claims shall be heard and considered.
(2) Any objections or protests, whether to the things proposed by
the resolution of intention or to any changes proposed pursuant to ORS
376.765, not made at the time and in the manner provided by ORS 376.705
to 376.825 are deemed voluntarily waived, and the proceedings under ORS
376.705 to 376.825 shall not be attacked on any ground not stated in a
written objection filed as provided in ORS 376.705 to 376.825.
(3) Except in the case of a majority protest, as provided in ORS
376.760, the legislative body may sustain or deny any or all objections
or protests and its determination is final.
(4) The hearing may be continued from time to time by order entered
on the minutes. [1961 c.666 §§15,19] (1) Following
the conclusion of the hearing, the legislative body shall by resolution
either abandon the proceeding taken pursuant to ORS 376.705 to 376.825 or
determine that the pedestrian mall shall be established.
(2) If assessments are to be levied as contemplated by ORS 376.735,
then in the resolution provided for in subsection (1) of this section,
the legislative body shall fix and establish the boundaries of the
district as finally determined. [1961 c.666 §§21,25](1) If following the
hearing the legislative body shall determine that the pedestrian mall
shall be established, and if at that time there remain any written claims
for damages which have not been allowed pursuant to ORS 376.770 or which
have not been withdrawn, the legislative body shall direct that an action
or actions be brought in the circuit court of the county in which the
city is located in the name of the city by the city attorney, for a
determination of the damages, if any, to which the claimant may legally
be entitled because of the establishment of the pedestrian mall. Such
action shall be in the nature of a proceeding in eminent domain for the
condemnation of the right or rights in real property, the taking of which
by the establishment of the pedestrian mall results in the damages
claimed. In such action the amount set forth in the claim relating
thereto shall not constitute a limitation upon the amount which may be
pleaded, proved or recovered.
(2) Except as may otherwise be provided in ORS 376.705 to 376.825,
such action and proceeding shall be governed so far as the same may be
made applicable by those provisions of ORS chapter 35 relating to actions
and proceedings in eminent domain. In any such action the resolution
adopted under ORS 376.780 (1) shall be conclusive evidence of the public
necessity of the proposed pedestrian mall; that the property or rights in
property to be taken are necessary therefor, and that the pedestrian mall
is planned and located in the manner which will be compatible with the
greatest public good and the least private injury.
(3) The judgment in any such action shall be satisfied and a final
order taken before vehicular traffic is prohibited, in whole or in part,
on the pedestrian mall pursuant to ORS 376.705 to 376.825. [1961 c.666
§§22,23]After all claims for damages filed pursuant to ORS 376.755 (2)
have been finally determined, by allowance by the legislative body, by
withdrawal, or by a judgment in an action or actions brought pursuant to
ORS chapter 35, and the full amount of damages to be paid has accordingly
been finally determined, all or part of the total amount of such damages
(but not exceeding such part thereof as may be specified in the
resolution of intention), together with all costs and expenses incurred
in connection with any proceedings or actions taken pursuant to ORS
376.705 to 376.825, may be assessed against the lands within the district
and subject to assessment in proportion to the benefits to be derived
from the establishment of the pedestrian mall. [1961 c.666 §26](1) Such assessment may be levied and bonds to represent
unpaid assessments issued and sold substantially in the manner provided
in ORS 223.005 to 223.105 and 223.205 to 223.930, and to the extent
applicable, such law shall govern as to the preparation of the
assessment, the lands subject to assessment, the hearing upon the
assessment and the notice thereof, the confirmation and recordation of
the assessment, the lien of the assessments, the notice of recordation,
the collection of assessments, the issuance, sale and delivery of bonds
upon unpaid assessments, the term of the bonds, the maximum interest rate
thereon, the collection and enforcement of such bonds and all other
matters to the extent applicable and except as provided in ORS 376.705 to
376.825.
(2) In so applying the provisions of ORS 223.005 to 228.105 and
223.205 to 223.930, the following provisions and exceptions shall apply:
(a) The limits provided by such law on the amount of the assessment
shall not apply.
(b) The legislative body shall provide for the form of the bonds
and of the principal and interest coupons to be attached thereto.
(c) The legislative body may provide that the redemption provision
of the bonds shall require the payment of such premium as the legislative
body may specify. [1961 c.666 §§27,28](1) All collections of assessments and all proceeds of the sale
of bonds issued upon unpaid assessments shall be placed in a special fund
and used exclusively for the payment of the damages, if any, and expenses
for which the assessments were levied.
(2) If there is a surplus in such special fund, the legislative
body may expend such surplus for the improvement or operation of the
pedestrian mall. [1961 c.666 §29]Notwithstanding the fact that the proceedings
under ORS 376.705 to 376.825 have provided that assessments are to be
levied as contemplated by ORS 376.735, the legislative body, at any time
and either before or after the adoption of the resolution provided for in
ORS 376.780 (1), may determine that such assessments shall not be levied.
In lieu thereof the legislative body may provide for the payment of all
or any part of the amounts referred to in ORS 376.790, out of general
funds of the city or out of any other available funds. [1961 c.666 §30] Following the
adoption of the resolution provided for in ORS 376.780 (1), and as soon
as moneys have been fully provided for the payment of all claims, if any,
allowed pursuant to ORS 376.770, and for the payment of all damages and
compensation, if any, awarded in any action or actions brought pursuant
to ORS chapter 35, the legislative body may adopt an ordinance
establishing the pedestrian mall. Such ordinance shall contain:
(1) A general description of the pedestrian mall and a declaration
and determination that the same is finally established. The mall as
finally established shall be substantially the same as that described in
the resolution of intention.
(2) Rules and regulations prohibiting vehicular traffic on such
pedestrian mall subject to such exceptions as the ordinance may provide.
Such rules and regulations and such exceptions shall be substantially in
accordance with the statements made in the resolution of intention.
(3) Such additional rules and regulations as the legislative body
may determine pertaining to the interpretation, operation and enforcement
of the rules and regulations referred to in subsection (2) of this
section, and otherwise pertaining to the use, operation, maintenance of
the pedestrian mall.
(4) Such provisions as the legislative body may determine
pertaining to the operative date or dates of any of such rules or
regulations. [1961 c.666 §31](1) Such ordinance shall be adopted and published in the
manner, and shall take effect, as provided by law or charter for other
ordinances of the city. Such ordinance shall be subject to referendum in
the same manner as other ordinances of the city.
(2) No payment of allowed claims or damages or compensation awarded
by any court shall be made until such ordinance is in effect but all such
allowed claims, damages and compensation shall be paid before the rules
and regulations provided in such ordinance become operative. [1961 c.666
§§32,33] (1)
Proceedings under ORS 376.705 to 376.825 and the adoption of such
ordinance notwithstanding, the city and its legislative body shall retain
its police powers and other rights and powers relating to the city
streets constituting a part of the pedestrian mall. No action taken
pursuant to ORS 376.705 to 376.825 shall be interpreted or construed to
be a vacation or abandonment, in whole or in part, of any city street or
any right therein, it being intended that the establishment of a
pedestrian mall pursuant to ORS 376.705 to 376.825 be a matter of
regulation only.
(2) Nothing in ORS 376.705 to 376.825 shall be interpreted or
construed to prevent the city and its legislative body, at any time
subsequent to the adoption of the ordinance provided for in ORS 376.705
to 376.825, from abandoning the operation of the pedestrian mall, from
changing the extent of the pedestrian mall, or from changing or repealing
any of the rules and regulations pertaining to the pedestrian mall. [1961
c.666 §34] (1) The city and
its legislative body shall have the power to improve a pedestrian mall as
provided in ORS 376.720 (1)(d), and for the accomplishment, in whole or
in part, of that purpose may use ORS 223.005 to 223.105 and 223.205 to
223.930 or any similar special assessment law. Any work or improvement
permitted by such statutes shall be deemed to be work or improvement
permitted to be done under any such Act or law. The city may also pay the
whole or any part of the cost and expenses of improving a pedestrian mall
from its general funds or from any other available money and may let
contracts for the work in any manner permitted by law or charter.
(2) A pedestrian mall established or to be established pursuant to
ORS 376.705 to 376.825 may be so improved either concurrently with the
proceedings taken under ORS 376.705 to 376.825 for the establishment of
the pedestrian mall or at any time subsequent to the establishment of the
city mall, but no contract for the work or improvement shall be awarded
until moneys have been fully provided for the payment of all claims
allowed pursuant to ORS 376.770 and for the payment of all damages and
compensation, if any, awarded in any action or actions brought pursuant
hereof. If in connection with the establishment of a pedestrian mall and
concurrently with the proceedings taken pursuant to ORS 376.705 to
376.825, the legislative body proposes to improve the proposed pedestrian
mall and for that purpose uses ORS 223.005 to 223.105 and 223.205 to
223.930 or any similar special assessment law, the legislative body may
combine any part of the proceedings taken pursuant to ORS 376.705 to
376.825 with any part of the proceedings taken under any such special
assessment law, to the end that duplication of ordinances, resolutions,
notices, hearings and other acts or proceedings may be avoided. [1961
c.666 §§35,36]PENALTIES (1) Operation of a motor vehicle by any person
over a contract forest road in violation of the contract provisions as to
equipment, weight, width, length or height, is punishable, upon
conviction, by a fine not exceeding $400 or by imprisonment in the county
jail not exceeding one year, or both. The definitions in ORS 376.310
apply to this section.
(2) Violation by any person of any of the provisions of ORS 376.305
to 376.390 is punishable, upon conviction, by a fine not exceeding $400
or by imprisonment in the county jail not exceeding one year, or both.
[Amended by 1971 c.743 §361]
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