261 P.3d 33
Or. Ct. App.2011Background
- TriMet and City of Portland appeal after jury awarded Posh $756,000 for diminution in value under ORS 105.855 due to SW 6th Ave access restriction adjacent to Posh’s Days Inn/Hotel Modera site.
- TriMet restricted private vehicle access along SW 6th Ave for the Portland Mall Segment of the South Corridor Light Rail Project; Posh bought and remodeled the Days Inn/Hotel Modera in anticipation of the restriction.
- Posh’s appraisal calculated a $2.108 million loss using a cost-to-cure approach and hypothetical conditions to reflect before/after values, with the trial court admitting the evidence.
- Greene’s appraisal assumed pre-restriction access and post-restriction changes, including converting SW Clay Street into the main entrance, and included costs for design/construction and an internal ramp.
- TriMet challenged the admissibility of hypothetical/value evidence, the cost-to-cure method, and jury instructions; the cross-appeal concerns attorney-fee recovery under ORS 105.855.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 105.855 precludes hypothetical/alternative designs in valuation. | TriMet argues only actual pre/post physical condition evidence admissible. | Posh contends appraisal using hypothetical conditions captures loss from restriction. | No; evidence using hypothetical conditions and cost-to-cure is admissible for diminution value under ORS 105.855. |
| Whether cost-to-cure is an improper valuation method. | TriMet asserts cost-to-cure exceeds permitted valuation. | Posh contends method appropriate as a factual question for the jury. | Appraisal method was properly admitted as a factual determination for the jury. |
| Whether the jury could consider evidence beyond the physical condition on the day of restriction. | TriMet relies on temporal/physical limits of ORS 105.855. | Posh argues broader evidence relevant to diminution in value is allowed. | Yes; broader evidence admissible to reflect diminution in value. |
| Whether Hewitt-based attorney-fee recovery applies to ORS 105.855 actions. | Posh seeks full attorney fees as in Hewitt/Boggs/Brookshire line. | TriMet rejects fee recovery under ORS 105.855; police-power action not Article I, §18 taking. | Hewitt does not apply; no fee recovery under ORS 105.855. |
Key Cases Cited
- City of Bend v. Juniper Utility Co., 242 Or.App. 9 (2011) (valuation methodologies; condemnation.)
- Dept. of Transportation v. Stallcup, 195 Or.App. 239 (2004) (appraisals predicated on assumptions and hypothetical conditions.)
- Tunison v. Multnomah County, 251 Or. 602 (1968) (cost to cure principles in partial takings.)
- Hewitt v. Lane County, 253 Or. 669 (1969) (fee-shifting under ORS 20.085 in condemnation; not applicable here.)
- Boggs v. Multnomah County, 470 P.2d 159 (1970) (application of Hewitt principles to condemnation proceedings.)
- Brookshire v. Johnson, 274 Or. 19 (1976) (way of necessity; attorney fees under ORS 20.085 analysis.)
- Robertson v. City of Turner, 187 Or.App. 702 (2003) (police power not compensable taking under Article I, §18.)