Owners’ Counsel of America Files Amicus Brief Supporting Landowner in Eminent Domain Case Before Oregon Supreme Court

The Owners’ Counsel of America (OCA) together with the Central Oregon Builders Association (COBA) and Oregonians In Action (OIA) filed an amicus brief supporting the property owner in State of Oregon v. Alderwoods (Oregon), Inc., case number S062766. The brief asks the Oregon Supreme Court to confirm a long-standing rule that owners of property directly adjacent to a road have a right to direct access to that road. The brief seeks to reverse a Court of Appeals decision which erroneously affirmed a trial court ruling depriving the landowner of the right to a jury trial to determine the issue of just compensation in this eminent domain case.

In State of Oregon v. Alderwoods (Oregon), Inc., 265 Or App 572, 336 P3d 1047 (2014), twelve judges of the Oregon Court of Appeals split 6-6 resulting in an affirmance by an equally divided court of the trial court’s decision to withhold from the jury evidence of the reduction in Alderwoods’ property’s value resulting from the Oregon Department of Transportation’s (ODOT) taking of two driveways which provided direct access to the property from SW Pacific Highway (Highway 99W), in Tigard, Oregon. Alderwoods appealed to the Oregon Supreme Court, which agreed to review the case.

The brief was authored by Jordan R. Silk and D. Joe Willis of the Pacific Northwest regional law firm Schwabe, Williamson & Wyatt. Schwabe attorneys Kelly M. Walsh and Jill S. Gelineau (OCA Oregon Member) also contributed to the brief.

Speaking on behalf of amici, Joe Willis explained that “[t]he fractured analyses of the Court of Appeals’ concurring opinions ignore established principles of Oregon and federal constitutional law. If the Oregon Supreme Court affirms the Court of Appeals and agrees that juries are barred from considering evidence that property loses value when direct access to adjacent highways is cut off, the property rights of every landowner in Oregon are in jeopardy.”

In an effort to improve Highway 99W, The Oregon Department of Transportation (ODOT) brought an eminent domain action against Alderwoods seeking to take all “rights of access, if any” to the highway.  A month after filing the condemnation suit, ODOT notified the property owner that it was eliminating the driveways through a separate administrative action because they did not meet current safety standards.

Alderwoods’ property had two driveways providing direct access to Highway 99W that had existed since the 1930s. These driveways were eliminated by ODOT and replaced with a curb and sidewalk as part of the highway improvement project.  At trial ODOT requested the court bar the admission of any evidence that the loss of the driveways devalued the remaining property.  The court agreed and prohibited the landowner from presenting this evidence to the jury.

“Under Oregon common law, owners of properties abutting a state highway or county road have a right of direct access to that road,” explained Gelineau.

“In this case, ODOT indicated in its original eminent domain petition that it would condemn Alderwoods’ rights of access, if such rights existed,” continued Gelineau. “However, the State attempted to use its administrative power to extinguish those rights by not allowing the existing driveways to remain on the property to avoid condemning them outright and paying the landowner just compensation.”

The amici brief filed by OCA, COBA and OIA argues that the six concurring Judges of the Court of Appeals erred in their analysis of this case. Amici contend that the concurring opinions incorrectly applied regulatory takings law to a direct eminent domain proceeding resulting in the erroneous decision. The brief argues that Judge Wollheim’s dissent—joined by five other judges—correctly concluded that the common law right of direct access to an adjacent public highway from private property is well settled and a right which cannot be damaged or taken without the payment of just compensation.

“We believe that Judge Wollheim’s dissenting opinion articulates the proper analysis for this case,” said Robert H. Thomas the Hawaii member of OCA, who assisted in connection with the brief. “We urge the Oregon Supreme Court to adopt the reasoning set forth in the dissenting opinion and remand this case to allow a jury to decide upon the amount of just compensation owed to Alderwoods.”

Oregon v. Alderwoods_ Brief – Amicus Curiae – FILED 3-26-2015

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