USA Statutes : oregon
Title : TITLE 03 REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS
Chapter : Chapter 35 Eminent Domain; Public Acquisition of Property
This chapter may be cited as the General
Condemnation Procedure Act. [1971 c.741 §2] As used in this chapter, unless the
context otherwise requires:

(1) “Condemner” means the state, any city, county, school district,
municipal or public corporation, political subdivision or any
instrumentality or any agency thereof or a private corporation that has
the power to exercise the right of eminent domain.

(2) “Owner” or “owner of the property” means the owner of property.

(3) “Person” means person as defined by ORS 174.100 and also
includes the state, any city, county, school district, municipal or
public corporation, political subdivision or any instrumentality or any
agency thereof.

(4) “Private condemner” means a private corporation that has the
power to exercise the right of eminent domain.

(5) “Property” means real or personal property or any interest
therein of any kind or nature that is subject to condemnation.

(6) “Public condemner” means condemner other than private
condemner. [1971 c.741 §4; 1983 c.327 §10; 2003 c.14 §18] (1) Subject to the
requirements of this section, a condemner may enter upon, examine,
survey, conduct tests upon and take samples from any real property that
is subject to condemnation by the condemner. A condemner may not enter
upon any land under the provisions of this section without first
attempting to provide actual notice to the owner or occupant of the
property. If the condemner has not provided actual notice, written notice
must be posted in a conspicuous place where the notice is most likely to
be seen. The posted notice must give the condemner’s name, address and
telephone number and the purpose of the entry. A condemner may conduct
tests upon or take samples from real property only with the consent of
the owner or pursuant to an order entered under subsection (2) of this
section. All testing and sampling must be done in conformity with
applicable laws and regulations. Testing and sampling results shall be
provided to the owner upon request.

(2) If the owner of property objects to examination or survey of
the property under this section, or does not consent to the terms and
conditions for testing or sampling of the property, the condemner may
file a petition with the court seeking an order providing for entry upon
the property and allowing such examination, survey, testing or sampling
as may be requested by the condemner. The court may enter an order
establishing reasonable terms and conditions for entry and for any
examination, survey, testing or sampling of the property requested by the
condemner. Reasonable compensation for damage or interference under
subsection (3) of this section may be established in the proceeding
either before or after entry is made upon the property by the condemner.

(3) An owner is entitled to reasonable compensation for:

(a) Any physical damage caused to the property by the entry upon or
examination, survey, testing or sampling of the property, including any
damage attributable to the diffusion of hazardous substances found on the
property; and

(b) Any substantial interference with the property’s possession or
use caused by the entry upon or examination, survey, testing or sampling
of the property.

(4) If a condemner is required to pay compensation to an owner in a
proceeding under subsection (2) of this section, and the condemner
thereafter seeks condemnation of the same property, the owner is not
entitled to any payment of compensation in the condemnation action that
would result in the owner receiving a second recovery for the same damage
or interference.

(5) Nothing in this section affects any liability under any other
provision of law that a condemner may have to an owner or occupant of
property by reason of entry upon or examination, survey, testing or
sampling of property. [2003 c.477 §2](1) Subject to ORS 758.015 and
836.050, whenever in the judgment of the condemner it is necessary to
acquire property for a purpose for which the condemner is authorized by
law to acquire property, the condemner shall, after first declaring by
resolution or ordinance such necessity and the purpose for which it is
required, attempt to agree with the owner with 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] (1) If the
condemner is unable to agree with or locate the owner of the property
under ORS 35.235, then an action to condemn property may be commenced in
the circuit court of the county in which the property proposed to be
condemned, or the greater portion thereof, is located.

(2) An action may be commenced against the person in whose name the
record title appears. There may be included as defendants any lessee or
other person in possession and all other persons having or claiming an
interest in the property. [1971 c.741 §7] The complaint shall describe the
property sought to be condemned and shall allege the true value of the
property sought and the damage, if any, resulting from the appropriation
thereof. [1971 c.741 §8; 1979 c.284 §75](1) When a public
condemner commences an action for the condemnation of property and
immediate possession of the property is considered necessary by the
public condemner, a fund shall be created in the amount estimated to be
the just compensation for the property and placed in the hands of the
treasurer of the public condemner for deposit with the clerk of the court
wherein the action was commenced, for the use of the defendants in the
action.

(2) When the public condemner is a state agency and immediate
possession of property is considered necessary by the agency, the agency
shall certify to such facts and authorize an advancement out of funds
available to the agency of the amount estimated by the agency to be just
compensation for the property. Upon such certification and authorization,
a warrant shall be drawn in favor of the clerk of the court in the amount
authorized.

(3) Upon the deposit in court by the public condemner of the
estimated amount of just compensation as provided by subsections (1) and
(2) of this section, no interest shall be allowed thereon in the
judgment. [1971 c.741 §10; 2003 c.576 §236](1) At any time after an action is commenced to acquire any property, a
private condemner may apply to the court for an order to occupy the
property to be condemned and to make use of the property for the purposes
for which it is being appropriated.

(2) At the hearing on the motion, the court shall determine the
reasons for requiring a speedy occupation. The court shall grant the
motion if, giving consideration to the public interest involved, it finds
that the interests of the owners will be adequately protected. The court
may make such provisions or orders as necessary, so that the advance
taking or an advance payment, as provided by subsection (3) of this
section, will not be prejudicial to either party.

(3)(a) If an order to occupy the property is granted, it may also
require the private condemner to deposit with the court either such sum
as the court finds reasonable on account of just compensation to be
awarded or to deposit a surety bond in an amount and with such surety as
the court may approve. The surety bond shall be conditioned to the effect
that the private condemner shall pay to the owners of the property just
compensation for the property taken or restitution, if any, and costs,
disbursements and reasonable attorney fees as finally determined.

(b) After an order to occupy is entered, if it appears necessary in
order to protect the interests of the owners of the property, the court
at any time may require the private condemner to deposit with the court
an additional bond or sum on account of just compensation to be awarded.

(c) Evidence as to the finding of the court regarding the amount of
such bond or deposit shall not be admissible at the trial of just
compensation. [1971 c.741 §11]
(1) The court may distribute all or any part of the funds deposited by a
condemner to the persons entitled thereto for or on account of the just
compensation to be awarded in the action, upon such terms and conditions
as may appear just and reasonable.

(2) Any persons entitled to withdraw any or all of the deposit, as
provided by subsection (1) of this section, may do so at any time without
waiving rights of appeal provided by ORS 35.355. [1971 c.741 §12] The defendant in answer may set forth
any legal defense the defendant may have to the condemnation. The
defendant shall also allege the true value of the property and the
damage, if any, resulting from the appropriation thereof. [1971 c.741 §13](1) Evidence shall be
received and the trial conducted in the order and manner prescribed for a
civil action in the circuit court, except that the defendant shall have
the option of proceeding first or last in the presentation of evidence,
if notice of such election is filed with the court and served on the
condemner at least seven days prior to the date set for trial. If no
notice of election is filed, the condemner shall proceed first in the
presentation of evidence. Unless the case is submitted by both sides to
the jury without argument, the party who presents evidence first shall
also open and close the argument to the jury.

(2) Condemner and defendant may offer evidence of just
compensation, but neither party shall have the burden of proof of just
compensation. [1971 c.741 §14; 1979 c.284 §76] If motion is made by
either party before the formation of the jury, the court shall order a
view of the property in question; and, upon the return of the jury, the
evidence of the parties may be heard and the verdict of the jury given.
[1971 c.741 §15] Upon
the assessment of the compensation by the jury, the court shall give
judgment appropriating the property in question to the condemner,
conditioned upon the condemner’s paying into court the compensation
assessed by the jury; and, after the making of such payment, the judgment
shall become effective to convey the property, and the right of
possession thereof to the condemner if not previously acquired. [1971
c.741 §16] (1) If an
action is abandoned by the condemner, the court shall enter judgment in
favor of the defendant for costs and disbursements in the action and for
reasonable attorney fees and reasonable expenses as determined by the
court.

(2) Expenses mean costs of appraisals and fees for experts incurred
in preparing and conducting the defense to the action.

(3) An action is considered abandoned if, at any time after filing
a complaint, the case is dismissed or terminated or the condemner files
an election not to take the property. If an election is not filed within
60 days after the verdict, the condemner is considered to have elected to
take the property. [1971 c.741 §17](1) At least 40 days before the filing of any action for
condemnation of property or any interest in property, the condemner shall
make an initial written offer to the owner or party having an interest to
purchase the property or interest, and to pay just compensation therefor
and for any compensable damages to remaining property.

(2) The offer shall be accompanied by any written appraisal upon
which the condemner relied in establishing the amount of compensation
offered. If the condemner determines that the amount of just compensation
due is less than $20,000, the condemner, in lieu of a written appraisal,
may provide to the owner or other person having an interest in the
property a written explanation of the bases and method by which the
condemner arrived at the specific valuation of the property. The amount
of just compensation offered shall not be reduced by amendment or
otherwise before or during trial except on order of the court entered not
less than 60 days prior to trial. An order for reduction of just
compensation offered, pleaded by the condemner in the complaint or
deposited with the court for the use and benefit of the owner pending
outcome of the condemnation action, may be entered only upon motion of
the condemner and a finding by clear and convincing evidence that the
appraisal upon which the original offer is based was the result of a
mistake of material fact that was not known and could not reasonably have
been known at the time of the original appraisal or was based on a
mistake of law.

(3) Unless otherwise agreed to by the condemner and the owner,
prior to appraising the property the condemner shall provide not less
than 15 days’ written notice to the owner of the planned appraisal
inspection. The property owner and designated representative, if any,
shall be invited to accompany the condemner’s appraiser on any inspection
of the property for appraisal purposes.

(4) The owner has not less than 40 days from the date the owner
receives the initial written offer required by subsection (1) of this
section, accompanied by the appraisal or written explanation required by
subsection (2) of this section, to accept or reject the offer. If the
owner rejects the condemner’s offer and obtains a separate appraisal, the
owner shall provide the condemner with a copy of the owner’s appraisal
not less than 60 days prior to trial or arbitration.

(5)(a) Failure to provide the opposing party with a copy of the
appropriate appraisal as provided in subsections (2) and (4) of this
section shall prohibit the use of the appraisal in arbitration or at
trial.

(b) In the event the owner and condemner are unable to reach
agreement and proceed to trial or arbitration as provided in subsection
(6) of this section, each party to the proceeding shall provide to every
other party a copy of every appraisal obtained by the party as part of
the condemnation action.

(6)(a) If an action based on the condemnation is filed, the owner
may elect to have compensation determined by binding arbitration if the
total amount of compensation claimed by any party does not exceed
$20,000. Notice of an election of binding arbitration must be given to
the condemner at least 90 days prior to the date on which an arbitration
hearing is scheduled under ORS 36.420.

(b) Notwithstanding the amount established under ORS 36.400, if the
owner elects to proceed with binding arbitration, the arbitration shall
be conducted according to the mandatory arbitration program established
under ORS 36.400 to 36.425. Notwithstanding ORS 36.425, no party may
request a trial de novo after the filing of the decision and award of the
arbitrator. Within 20 days after the filing of the decision and award of
the arbitrator under ORS 36.425, any party may file a motion with the
court for the vacation, modification or correction of the award. The
court may vacate an award only if there is a basis to vacate the award
described in ORS 36.705 (1)(a) to (d). The court may modify or correct an
award only for the grounds given in ORS 36.710. Except as provided in
this subsection, no party may appeal from the decision and award of an
arbitrator if the owner elects binding arbitration in lieu of trial.

(c) If the total amount of compensation claimed exceeds $20,000 but
is less than $50,000, the owner may elect to have compensation determined
by nonbinding arbitration under the applicable provisions of ORS 36.400
to 36.425.

(7) If a trial is held or arbitration conducted for the fixing of
the amount of compensation to be awarded to the defendant owner or party
having an interest in the property being condemned, the court or
arbitrator shall award said defendant costs and disbursements including
reasonable attorney fees and reasonable expenses as defined in ORS 35.335
(2) in the following cases, and no other:

(a) If the amount of just compensation assessed by the verdict in
the trial exceeds the highest written offer in settlement submitted by
condemner to those defendants appearing in the action at least 30 days
prior to commencement of said trial; or

(b) If the court finds that the first written offer made by
condemner to defendant in settlement prior to filing of the action did
not constitute a good faith offer of an amount reasonably believed by
condemner to be just compensation.

(8) If any appraisal provided to a party under this section relies
on a written report, opinion or estimate of a person who is not an
appraiser, a copy of the written report, opinion or estimate must be
provided with the appraisal. If any appraisal provided under this section
relies on an unwritten report, opinion or estimate of a person who is not
an appraiser, the party providing the appraisal must also provide the
name and address of the person who provided the unwritten report, opinion
or estimate.

(9) Costs and disbursements other than reasonable attorney fees and
expenses as defined in ORS 35.335 (2) shall be awarded to condemner in
all cases other than those in which defendant is entitled to costs and
disbursements under subsection (7) of this section. [1973 c.617 §2
(enacted in lieu of 35.345); 1997 c.797 §1; 2003 c.476 §1; 2003 c.598
§33; 2005 c.274 §5; 2005 c.433 §1]Note: Section 2, chapter 433, Oregon Laws 2005, provides:

Sec. 2. The amendments to ORS 35.346 by section 1 of this 2005 Act
apply only to condemnation actions commenced as described in ORS 12.020
on or after the effective date of this 2005 Act [January 1, 2006]. [2005
c.433 §2] Notwithstanding ORS
35.346, if a condemner determines that an emergency that poses a threat
to persons or property exists and that immediate possession of the
property is necessary, the condemner may immediately file a condemnation
action after making an initial written offer under ORS 35.346 (1)
accompanied by the appraisal or explanation required by ORS 35.346 (2).
[1997 c.797 §3; 2003 c.476 §3] This
chapter does not affect the ability of a public body, as defined in ORS
174.109, to take immediate possession of property in an emergency that
poses a threat to persons or property. [2005 c.565 §2](1) At any time after a condemnation action is
commenced, a public condemner may serve notice that the public condemner
will take immediate possession of the property that is the subject of the
action. The notice must be served in the manner provided by ORCP 9 on all
defendants in the action.

(2) If notice is served under this section, a defendant in a
condemnation action may object to immediate possession of property by a
public condemner by filing a written objection with the court within 10
days after notice is served on the defendant under this section and
serving a copy of the objection on the public condemner in the manner
provided by ORCP 9. The objection must request that the court schedule a
hearing on the objection at the earliest possible time. The only issues
that a court may consider upon objection are:

(a) Whether the condemnation is legal; and

(b) Subject to the presumption established by ORS 35.235 (2),
whether the public condemner has acted in bad faith, engaged in fraud or
engaged in an abuse of discretion under a delegation of authority.

(3) If notice is served under this section and an objection is not
filed with the court within the time allowed under subsection (2) of this
section, the public condemner may at any time thereafter file with the
court a form of order confirming the public condemner’s possession of the
property as of the date specified in the notice. The form of order must
be accompanied by an affidavit attesting to service of the notice as
required by subsection (1) of this section, and a statement that an
objection was not filed within 10 days after notice was served on the
defendants in the action. Upon filing of the affidavit, the clerk of the
court shall affix the seal of the court to the form of order. The order
may thereafter be enforced in the same manner as any other order of the
court.

(4) A notice under this section must be in substantially the
following form:

___________________________________________________________________________
___

CIRCUIT COURT FOR THE

COUNTY OF ______

                 )

______     )

Plaintiff,   )     NOTICE OF

                 )     IMMEDIATE

                 )     POSSESSION

                 )

vs.             )     Case No. _____

                 )

______     )

Defendant.)

TO THE DEFENDANTS:

By service of this notice, you are advised that the plaintiff will
take possession of the property described in the complaint on:

(1) _________, 2___, if the deposit required by ORS 35.265 has been
made by that date; or

(2) The date on which the deposit required by ORS 35.265 is made if
that date is later than the date specified above.

You may file an objection with the court within 10 days after this
notice is served on you. An objection may be made only to determine:

(1) Whether the condemnation is legal; and

(2) Subject to the presumption established by ORS 35.235 (2),
whether the public condemner has acted in bad faith, engaged in fraud or
engaged in an abuse of discretion under a delegation of authority.

_____________________

Attorney for Plaintiff_____________________

Address_____________________

Telephone Number

___________________________________________________________________________
___

(5) The court shall expeditiously consider any objection filed
under this section to prevent prejudice to the public condemner’s need
for immediate possession.

(6) The ability of the defendant in a condemnation action to assert
legal defenses in the answer of the defendant under ORS 35.295 is not
affected solely by reason of the filing of an objection to a notice
served under this section, or by reason of the failure to file an
objection.

(7) This section does not impose a requirement that a public
condemner use the procedure described in this section, and the procedure
described in this section is not the exclusive method by which a public
condemner may obtain possession of property. [2005 c.565 §3] Either party to the action may appeal from the
judgment in like manner and with like effect as in ordinary cases, but
the appeal shall not stay the proceedings so as to prevent the condemner
from taking possession of the property and using it for the purposes for
which it is being appropriated. In the event the defendant prevails on an
appeal, the costs and disbursements of the defendant, including a
reasonable attorney fee to be fixed by the court, shall be taxed by the
clerk and recovered from the condemner. [1971 c.741 §19] If the
defendant withdraws the compensation awarded by the court or jury, the
defendant waives the right of appeal; and, if the defendant does not,
such sum shall remain in the control of the court, to abide the event of
the appeal. If an unknown owner of the property or other defendant does
not appear and claim the sum, it shall be invested for the benefit of
whom it may concern, as in case of unclaimed moneys in the sale and
partition of lands. [1971 c.741 §20]
Except for procedures provided in ORS chapter 368, any action for the
condemnation of property under the power of eminent domain shall be
conducted according to this chapter. [1971 c.741 §3; 1979 c.873 §3; 1981
c.153 §52](1)
If real property is acquired by a condemner by agreement with the owner
of such property after commencement of an action under ORS 35.245 for the
appropriation of such property but prior to judgment in such action, the
condemner and the owner shall:

(a) Specify in such agreement for the real property a reasonable
period within which the real property must be used by the condemner for a
public purpose or specify a 10-year period for such use and provide that
the right of repurchase of the real property or any portion thereof may
be exercised as provided in ORS 35.385 to 35.415; or

(b) Specify that the right of repurchase of the real property has
been waived by the owner and, in such case, not specify a period within
which the real property must be used by the condemner for a public
purpose.

(2) If real property is acquired by a condemner under this chapter
by judgment given in a condemnation action under ORS 35.325, the court
shall:

(a) Specify in the judgment a reasonable period within which the
real property must be used by the condemner for a public purpose or
specify a 10-year period, and provide that the right of repurchase may be
exercised with respect to the real property as provided in ORS 35.385 to
35.415; or

(b) Specify that the right of repurchase of the real property has
been waived by the owner and, in such case, not specify a period within
which the real property must be used by the condemner for a public
purpose.

(3) For the purposes of subsection (2)(a) of this section, the
resolution or ordinance of the condemner is presumptive evidence that the
period of time that is proposed by the condemner is a reasonable period
in which the real property must be used by the condemner for a public
purpose; provided, however, that if the resolution or ordinance specifies
a 10-year period or less, neither the owner nor a designated beneficiary
of the owner can contest the reasonableness of the period specified.
[1973 c.720 §2](1) If a condemner
fails to use the real property or any portion thereof acquired under this
chapter within the time specified in an agreement entered into under ORS
35.385 (1) or with the terms of a judgment given under ORS 35.325 and
35.385 (2), whichever applies, and the prior owner of the real property
has not waived the right to repurchase the real property, the condemner
shall offer such property or any portion thereof, that has not been used
for a public purpose within the specified period, to the prior owner or
the beneficiary of the prior owner designated as provided in ORS 35.400.
The condemner shall, at its expense, insure the title to any property or
portion thereof conveyed or vested in the owner or beneficiary under any
provision of ORS 35.385 to 35.415, free and clear of any and all
encumbrances except those subject to which the condemner originally took
such property.

(2) The prior owner or beneficiary described in subsection (1) of
this section may repurchase from the condemner the real property that is
subject to the right of repurchase for a price equal to the sum of the
compensation and damages paid by the condemner for the real property plus
interest at the rate of seven percent per year from the date of the
conveyance of the real property by the prior owner to the condemner.

(3) If only a portion of the real property acquired by a condemner
is subject to the right of repurchase under ORS 35.385 to 35.415, the
prior owner or beneficiary may acquire such portion for a price equal to
the sum of:

(a) The fair cash market value of the portion subject to the right
of repurchase, as of the date of the commencement of any action subject
to ORS 35.385;

(b) The damages for diminution in value of the remainder, if any,
of the former owner’s property not so acquired, as of the date of the
commencement of any action subject to ORS 35.385; and

(c) Interest at the rate of seven percent per year from the date of
the conveyance of the real property by the prior owner to the condemner.

(4) The offer to repurchase only a portion of real property as
provided in subsection (1) of this section and ORS 35.400 (3), shall be
in writing and shall include the price for repurchase as determined by
the condemner, including an itemization of the components thereof,
pursuant to subsection (3) of this section. [1973 c.720 §3; 2003 c.14 §19](1) The period specified in an agreement or
judgment as provided in ORS 35.385 may be changed as provided in this
section, if the prior owner of the real property has not waived the right
of repurchase and the condemner finds that it will be unable to use all
or a portion of the real property for such purpose within the specified
period and requires a reasonable extension of such period for the
completion of its project on the real property.

(2) Upon a finding under subsection (1) of this section, a
condemner shall notify the prior owner or designated beneficiary of the
requested change in period. The condemner shall negotiate with the prior
owner or beneficiary on the requested change.

(a) Notification under this subsection shall consist of mailing a
letter by certified mail to the last address of the prior owner or the
designated beneficiary of the owner as shown in the agreement or judgment
whereby the real property was acquired or the address subsequently
supplied by such owner or beneficiary. If no response has been received
by the condemner within 60 days after receipt of notice by the owner or
designated beneficiary, all the rights of the owner or designated
beneficiary under ORS 35.385 to 35.415 shall be considered waived.

(b) If the condemner cannot locate the prior owner or the
designated beneficiary of the owner at the last-known address of the
owner or the designated beneficiary, notice may be effected by
publication. The publication shall be made in a newspaper published in
the county where the property is located, or if no newspaper is published
in the county, then in a newspaper designated as being most likely to
give notice to the prior owner or the beneficiary of the prior owner. The
newspaper utilized shall meet the requirements of ORS 193.020. The notice
shall contain the name of the public project, a general description of
the location of the property, the change in purpose or extension of time
desired by the condemner and a time within which the owner or the
beneficiary of the owner must respond to the notice. The notice shall be
published not less than once each week for four weeks. The publication of
notice may be directed to one or more owners or beneficiaries affected by
the same project. If no response is received by the condemner within 10
days after the date of the last publication of notice, all rights of the
prior owner or designated beneficiary shall be considered waived.

(3) If, after negotiation, the prior owner or beneficiary and the
condemner agree on the proposed change in period, the period as changed
shall, for the purposes of ORS 35.385 to 35.415, be considered the period
as specified in the agreement or judgment under ORS 35.385. In the case
of real property acquired by a condemner by judgment under ORS 35.325,
the condemner shall notify the court by which the judgment was given of
the agreed upon change in period and the court shall modify such judgment
accordingly.

(4) If the prior owner or beneficiary and the condemner cannot,
after negotiation, agree on the proposed change in period, the condemner
may:

(a) In the case of real property acquired by an agreement under ORS
35.235 (1), petition the circuit court for the county within which such
real property is situated for a hearing to determine whether the proposed
change in period is reasonable and necessary in the public interest; or

(b) In the case of real property acquired by a judgment given under
ORS 35.325, petition the court by which such judgment was given for a
hearing to determine whether it is reasonable and necessary in the public
interest to modify such judgment to permit the proposed change in period.
The condemner in its petition may include as parties and serve all or any
owners and designated beneficiaries whose property is affected by the
same project.

(5) If, after a hearing under subsection (4) of this section, the
court finds that the proposed change in period is reasonable and
necessary in the public interest, the court shall grant such change. For
the purposes of ORS 35.385 to 35.415, a period as changed by the court
shall be considered the period specified in the agreement or judgment
described in ORS 35.385. For the purposes of this subsection, the
resolution or ordinance of the condemner is presumptive evidence that the
change in period proposed by the condemner is reasonable and necessary in
the public interest.

(6) If, after a hearing under subsection (4) of this section, the
court finds that the proposed change in period is unreasonable or not
necessary in the public interest, the court shall deny the requested
change. In such case, the terms of the original agreement or judgment
shall control for the purpose of the exercise of the right of repurchase
under ORS 35.385 to 35.415. [1973 c.720 §4](1) At the time of entering into an agreement
pursuant to ORS 35.385 (1) for the acquisition of real property by a
condemner or prior to the time of giving judgment for the acquisition of
real property by a condemner under ORS 35.325, the owner of the real
property to be acquired may, if such owner has not waived the right of
repurchase under ORS 35.385 to 35.415, designate a person to exercise
such right of repurchase. Such designation shall constitute an assignment
of the right of the owner of such property to exercise the right of
repurchase otherwise available under ORS 35.385 to 35.415. The name and
address of the person so designated shall be included in such agreement
or judgment. Such owners and designated beneficiaries shall also notify
the condemner in writing of any change of address so that their
respective current addresses shall be of record with the condemner. The
person so designated may not assign or transfer the right of repurchase.

(2) If an owner of real property to be acquired by a condemner does
not designate a person to exercise the right of repurchase under ORS
35.385 to 35.415 and such owner has not waived such right of repurchase,
only the owner may exercise the right of repurchase under ORS 35.385 to
35.415. If such owner dies while real property is still subject to a
right of repurchase by the owner, the personal representative of such
owner’s estate may act as the owner to exercise the right of repurchase
with respect to such property on behalf of the estate of the owner at any
time prior to the discharge of the personal representative under ORS
116.213.

(3) Upon receipt from a condemner of an offer to repurchase any
real property or portion thereof in accordance with ORS 35.385 to 35.415:

(a) In the case of an offer to repurchase the entire parcel of real
property to which ORS 35.385 applies, if the owner or beneficiary of such
right of repurchase does not accept such offer within 30 days, the right
of repurchase is terminated and the condemner may use and dispose of such
property or portion as otherwise provided by law.

(b) In the case of an offer to repurchase only a portion of a
parcel of real property to which ORS 35.385 applies, the owner or
beneficiary of such right of repurchase may:

(A) Accept such offer within 30 days; or

(B) Notify the condemner within 30 days of the desire of the owner
or beneficiary to exercise such right, but refuse to accept the price
established by the condemner in the offer to repurchase made pursuant to
ORS 35.390 (4).

(c) If the owner or beneficiary of the right of repurchase fails to
timely notify the condemner pursuant to either paragraph (b)(A) or (B) of
this subsection, the right of repurchase is terminated and the condemner
may use or dispose of such portion of property as otherwise provided by
law.

(d) If timely notice of intent to exercise the right of repurchase
is given by the owner or beneficiary as provided by paragraph (b)(B) of
this subsection, the owner or beneficiary must within 60 days thereafter
commence an action, in the court in which the original action by the
condemner to acquire such real property was commenced, to determine the
sole issue of the price to be paid upon such repurchase, pursuant to the
provisions of ORS 35.390 (3). Failure to commence such an action within
such 60-day period shall void such notice of intention to exercise
repurchase for the purposes of paragraph (c) of this subsection.

(A) Upon the determination of the price for repurchase by the court
or jury, the court shall give judgment vesting title to the property in
the owner or the beneficiary, conditioned upon payment into court of the
assessed price by the owner or beneficiary within 90 days after the date
of the judgment; and upon the making of such payment, the judgment shall
become effective to convey the property and the right of possession
thereof to the owner or beneficiary. Failure to make such payment into
court within 90 days of the date of the judgment shall void the notice of
intent to exercise the right of repurchase for the purposes of paragraph
(c) of this subsection, and the judgment shall be withdrawn by the court.

(B) If the price determined pursuant to the provisions of this
paragraph is less than the price established by the condemner in its
written offer to repurchase, the costs and disbursements of the owner or
beneficiary, as specified in ORS 35.335 and 35.346, shall be taxed by the
clerk; and the judgment rendered shall reflect such costs and
disbursements only as an offset against the price to be paid into court
by the owner or beneficiary. [1973 c.720 §5]Notwithstanding any other provision of ORS 35.385 to
35.415, in any instance in which ORS 35.385 applies, where the agreement
by which the condemner acquired the property is executed by more than one
person exclusive of the condemner, or where the judgment given in a
condemnation action by which the condemner acquired the property includes
more than one named defendant, all such persons executing such agreement,
or all such named defendants must designate one person to act as
beneficiary in the exercise of the right of repurchase, unless all such
persons executing such agreement, or all such named defendants, waive
such right of repurchase as provided in ORS 35.385 to 35.415. Such
designated beneficiary thereafter shall exclusively have and exclusively
may exercise all rights, remedies and obligations provided in ORS 35.385
to 35.415. [1973 c.720 §6]A prior owner of real property acquired pursuant to an
agreement entered into under ORS 35.385 (1) or a judgment given under ORS
35.235 and 35.385 (2), whichever applies, or the designated beneficiary
of such owner, may contest any proposed change by the condemner in the
public purpose for which such real property was acquired in the manner
provided for contesting a change in the period specified for the use of
such real property by the condemner under ORS 35.395 (4). The resolution
or ordinance of the condemner is presumptive evidence that a proposed
change of use proposed by the condemner is reasonable and necessary in
the public interest. Each condemner proposing any such change in public
purpose shall notify each such owner or designated beneficiary of such
proposed change and the reasons therefor in the manner provided in ORS
35.395 (2) for notification of a proposed change in the period specified
for use of such real property by the condemner. Each such notice shall be
mailed to the most recent address of the owner or designated beneficiary
of record with the condemner. [1973 c.720 §7](1) ORS 35.385 to
35.415 apply only to property acquired after the filing of a complaint
pursuant to a resolution or ordinance adopted as provided in ORS 35.235
(1) on or after October 5, 1973, and for which a condemnation action is
commenced on or after October 5, 1973.

(2) Notwithstanding ORS 35.375, ORS 35.385 to 35.415 apply to real
property acquired by a county pursuant to ORS chapter 368.

(3) ORS 35.385 to 35.415 shall not apply to any real property
acquired under ORS 35.385 (1) and (2) after the date the real property is
used for the purpose for which it was acquired nor shall ORS 35.385 to
35.415 apply to any tract of real property where the compensation and
damages paid to the owner is less than $1,000. [1973 c.720 §8; 1981 c.153
§53]RELOCATION OF DISPLACED PERSONS(1) A public entity undertaking urban renewal or
neighborhood development shall make all reasonable efforts to insure that
all displaced persons shall have the option to relocate within their
urban renewal or development neighborhood or area and shall not be
displaced, except temporarily as required by emergency, until appropriate
residential units shall become available to them within their
neighborhood or area and within their financial means.

(2) Except as required by emergency, no displaced person shall be
required to move from any real property without first having written
notice from the public entity at least 90 days prior to the date by which
the move is required. In no case shall any displaced person be required
to move until the public entity notifies the person in writing of all
costs and allowances to which such person may become entitled under
federal, state or local law. [Formerly 281.055] Whenever
any program or project is undertaken by a public entity which program or
project will result in the acquisition of real property, notwithstanding
any other statute, charter, ordinance, or rule or regulation, the public
entity shall:

(1) Provide fair and reasonable relocation payments and assistance
to or for displaced persons as provided under sections 202, 203, 204 and
206 of the Federal Act;

(2) Provide relocation assistance programs offering to displaced
persons and others occupying property immediately adjacent to the real
property acquired the services described in section 205 of the Federal
Act on the conditions prescribed therein;

(3) In acquiring the real property, be guided by the land
acquisition policies in sections 301 and 302 of the Federal Act;

(4) Pay or reimburse property owners for necessary expenses as
specified in sections 303 and 304 of the Federal Act;

(5) Share costs of providing payments and assistance with the
federal government in the manner and to the extent required by sections
211 (a) and (b) of the Federal Act; and

(6) Appoint such officers, enter into such contracts, utilize
federal funds for planning and providing comparable replacement housing
and take such other actions as may be necessary to comply with the
conditions and requirements of the Federal Act. [Formerly 281.060] To be
eligible for the payment authorized by ORS 35.510, a business or farm
operation must make its state income tax returns and its financial
statements and accounting records available for audit for confidential
use to determine the payment authorized. [Formerly 281.070] Any person who
applies for relocation benefits or assistance under ORS 35.510 shall
receive the public entity’s written decision on the application which
shall include the statement of the amount awarded, if any, the statutory
basis for the award, and the statement of any finding of fact that the
public entity made in arriving at its decision. A person aggrieved by
said written decision shall be entitled to a hearing substantially of the
character required by ORS 183.415, 183.425, 183.450, 183.460 and 183.470,
unless federal, state or local law provides otherwise. Notice required by
ORS 183.415 must be served within 180 days of the receipt of the written
decision by the aggrieved party. The decision of the public entity shall
be reviewable pursuant to ORS 183.480. [Formerly 281.085]Nothing in ORS 35.510, 35.515 or 35.520 shall
be construed as creating in any condemnation proceedings brought under
the power of eminent domain, any element of value or of damage not in
existence immediately prior to May 7, 1971. [Formerly 281.090] If a public entity is receiving
federal financial assistance and is thereby required to comply with
applicable federal laws and regulations relating to relocation
assistance, such federal laws and regulations shall control should there
be any conflict with ORS 35.500 to 35.530. [Formerly 281.105]CONDEMNATION BY STATE
Whenever the state requires property for any public use, the necessity
for the acquisition to be decided and declared in the first instance by
the board, if the board and the owner of such property cannot agree upon
the price to be paid for the amount of or interest in the property
required for such public use, and the damages for the taking thereof, the
board may request the Attorney General to, and the Attorney General shall
when so requested, commence and prosecute in any court of competent
jurisdiction in the name of the State of Oregon any necessary or
appropriate suit, action or proceeding for the condemnation of the amount
of or interest in the property required for such purposes and for the
assessment of the damages for the taking thereof. [Formerly 281.220] The district attorney of the
judicial district in which the property to be condemned lies shall:

(1) Commence and prosecute the suit, action or proceeding in the
circuit court of such district, when requested by the board; or

(2) Aid the Attorney General in so doing in any manner requested by
the Attorney General. [Formerly 281.230] The procedure in the suit,
action or proceeding referred to in ORS 35.555 or 35.560 shall be, as far
as applicable, the procedure prescribed by law for the condemnation of
lands or rights of way by public corporations or quasi-public
corporations for public use or for corporate purposes. [Formerly 281.240] The
expenses of the condemnation proceeding, the value of the property, and
the damages for the taking thereof, shall be paid out of the funds
provided for the department or institution for which the property is
acquired in the same manner as other expenses for like purposes of such
department or institution are paid. If no funds have been provided out of
which the same can be paid, payment shall be made out of any funds in the
treasury not otherwise appropriated, and the Oregon Department of
Administrative Services is authorized to draw a warrant on the treasurer
therefor. [Formerly 281.250]ORS 35.550 to
35.575 do not require the state to make or tender compensation prior to
condemning and taking possession of the lands or property. [Formerly
281.260]CONDEMNATION OF PROPERTY ADJOINING PROPOSED ROADWAYSORS 35.600 to 35.625 apply to all condemners
other than the state. [Formerly 281.505]
(1) Every condemner having the right to purchase, acquire, enter upon and
appropriate land and property for establishing, laying out, widening,
enlarging or extending roads, streets or highways, may purchase, acquire,
enter upon and appropriate, in or in connection with establishing, laying
out, widening, enlarging or extending roads, streets or highways, land
and property immediately adjoining the proposed boundaries of such roads,
streets or highways.

(2) The authority conferred by subsection (1) of this section does
not extend to the purchase, acquisition, entering upon or appropriation
of any adjoining land or property situate more than 100 feet distant from
or beyond the proposed boundaries of any such road, street or highway, or
of any such adjoining land or property that constitutes the whole or any
part of a platted lot or tract of rectangular shape and having an area of
5,000 square feet or more and its shorter dimension not less than 50 feet
in length, or that constitutes the whole or any part of any tract of land
in common ownership of like shape and having like minimum area and
dimensions. [Formerly 281.510] Before the right to
purchase, acquire, enter upon and appropriate any adjoining land or
property under ORS 35.605 is exercised by any condemner, the governing
body shall by appropriate ordinance or resolution describe the land to be
purchased, acquired, entered upon or appropriated, and shall further
determine that the appropriation of such land is reasonably necessary to
protect the full use and enjoyment by the public of the road, street or
highway. [Formerly 281.520]After an appropriation of land and property authorized by ORS
35.605 has been made, the land and property so appropriated adjoining the
boundaries of any road, street or highway and not actually occupied by
the road, street or highway, may, by appropriate ordinance or resolution,
be declared subject to and burdened with the restrictions upon the future
use and occupation thereof that are considered necessary for protecting
the full use and enjoyment by the public of the road, street or highway.
Such land and property may thereafter be sold by the condemner subject to
the declared restrictions and the proceeds of the sale applied and
accounted for as may be provided by the charter, charter ordinances or
ordinances of, or law governing the condemner. The deed or other
conveyance of such land and property shall contain the restrictions and
all such land and property shall be sold, burdened with and subject to
the restrictions. [Formerly 281.530]The purchase, acquisition, entering upon and appropriation of
lands and property immediately adjoining the boundaries of roads, streets
or highways, as defined and limited in, and to the extent authorized by,
ORS 35.600 to 35.625 is declared to be necessary for the development and
welfare of the state and its inhabitants and to be a public use.
[Formerly 281.540] If private
property is appropriated for the public use as authorized by ORS 35.605,
and the compensation and damages arising from the appropriation cannot be
agreed upon, the appropriation shall be made and the compensation and
damages shall be considered, ascertained, determined, awarded and paid in
the manner provided by this chapter. [Formerly 281.550]

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