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Condemner's Offer Closing All Access Locations Must Include Just Compensation for the Failure to Leave a Defined Access

In State ex rel Dept. of Transp. v. Singh, No. 110469, A1495660, 2013 WL 3215699 (Or. Ct.. App. June 26, 2013) , the State sought to close two reservations of access by eminent domain on Highway 34 to a property that was improved with a convenience market and also to close access to the County Road using its police powers.  The property owner, Mr. Singh, moved to dismiss the condemnation case for the State’s failure to comply with the Condemnation Procedures Act because its statutory offer of just compensation (1) did not include a specific description of the location and extent of the rights of post-taking access to Mr. Singh’s property, and (2) did not address all compensable damages to the property as a result of the elimination of access to the property. The trial court granted Mr. Singh’s motion for summary judgment and dismissed the State’s complaint. The State appealed.

There was no dispute that the taking eliminated all rights of access to Mr. Singh’s property, and that absent reasonable alternative post-taking access, Mr. Singh’s remaining property would be land locked. In order to mitigate the damage to the remaining property, the State attempted to grant Mr. Singh rights to access and use a new road to be constructed across the neighbors’ private properties for access to his remaining property. As the trial court correctly ruled, however, there was nothing in the State’s offer (or the Complaint) describing with any definiteness or certainty the location or right to use a proposed new access road to Mr. Singh’s property. The State merely “offered” to build a road, at some generally-described location, and at some undefined point in time, all to be determined at the State’s sole discretion. The Court of Appeals agreed with the trial court’s dismissal of the condemnation action for failure to comply with the Condemnation Procedures Act. ORS 35.346(1) required the State to “make a written offer” to the property owner (a) “to purchase the property or interest,” (b) “to pay just compensation therefore,” and (c) to “pay just compensation for any compensable damages to the remaining property.” Implicit in the concept of an offer under the statute is that the amount offered is specifically tied to the terms of the offer. Thus, the amount of damages that a condemner offers must be based on an evaluation of the compensable damages that the remaining property will suffer if the property owner accepts the terms of the proffered agreement.

Because the appraiser for the State made the assumption in its appraisal that there would be access different than what was “offered,” the dismissal was appropriate.  The Court of Appeals held there is no requirement that the complaint include a metes and bounds description of the future access that the condemnor will provide. However, when the State chooses to make an offer of compensation before the specifics of a future access are certain, the statute requires that the compensation offer include compensation for that uncertainty. The trial court correctly dismissed the condemnation complaint.

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