State v. Alderwoods (Oregon), Inc.
336 P.3d 1047
Or. Ct. App.2014Background
- ODOT initiated condemnation to acquire a temporary construction easement and “abutter’s rights of access, if any,” for a Highway 99W improvement project that rebuilt sidewalks and removed curb cuts/driveways serving Alderwoods’ parcel.
- Alderwoods’ parcel fronted Highway 99W and previously had two private driveways; it also had indirect access via Warner Avenue along its side.
- ODOT notified Alderwoods that its driveways lacked permits and would be removed unless grandfathering before 1949 could be shown; ODOT design standards in effect would have prohibited new approaches at that location.
- Before trial the state moved in limine to exclude evidence of diminution in Alderwoods’ land value from loss of direct highway access; the trial court granted the motion.
- Parties stipulated to $11,792 compensation for the temporary easement (explicitly excluding any compensation for access); Alderwoods appealed the exclusion of its valuation evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence of diminution in land value from loss of direct access to Highway 99W was admissible in eminent domain trial | State: loss of access was regulatory (for highway purposes) and not a compensable taking; Alderwoods still had access via Warner Ave., so diminution from lost curb cuts was irrelevant | Alderwoods: state expressly sought to condemn its abutter’s right of direct access; acquisition of that property interest can reduce fair market value and is compensable — evidence of diminished value is relevant | Concurrences: exclusion was correct because (1) regulatory elimination of curb cuts left Alderwoods with no lawful access regardless of condemnation (Armstrong), or (2) Alderwoods never had a discrete property interest in the specific driveways to be condemned (Sercombe). Dissent: trial court erred — when state condemns access under ORS 374.035, owner may present damage evidence; remand required. |
Key Cases Cited
- State Highway Com. v. Burk et al., 200 Or 211 (discusses abutter’s easement of access and condemning access for throughways)
- Oregon Investment Co. v. Schrunk, 242 Or 63 (City regulation of curb cuts denying access held noncompensable where adequate alternate access remains)
- Douglas County v. Briggs, 286 Or 151 (construction of throughway statute and legislative history require compensation when county converts road to throughway)
- Barrett v. Union Bridge Co., 117 Or 220 (grade change denying access not compensable where change is for road purposes)
- Thornburg v. Port of Portland, 233 Or 178 (fair market value governs just compensation)
- Hanson (ODOT v. Hanson), 162 Or App 38 (common-law right of access not specific to location; regulation may be noncompensable if reasonable alternate access remains)
- Central Paving Co. (State Highway Com. v. Central Paving Co.), 240 Or 71 (distinguishes access rights where property did not abut highway)
- Coast Range Conifers v. Board of Forestry, 339 Or 136 (regulatory-takings standard: compensation when no economically viable use remains)