Plaintiffs brought this action against defendant, the City of Turner, after it closed a hazardous bridge that provided the only motor vehicle access to plaintiffs’ residential property. The trial court granted the city’s motion for summary judgment, holding that, until plaintiffs had pursued a statutory way of necessity against a third party, their claim was not ripe for adjudication. Because the relevant facts are undisputed, we review only for legal error. We affirm.
Plaintiffs own approximately 20 acres in Turner. Their property lies to the south of a small stream and contains their residence, a horseback riding arena, and a pasture. The only roadway to plaintiffs’ property is Gaston Street, which runs approximately 100 yards and connects plaintiffs’ driveway to the Fourth Street Bridge. The bridge crosses the stream and connects Gaston Street to the rest of Turner. Although eight parcels of land are served by the bridge, plaintiffs’ is the only one with a residence. Between plaintiffs’ property and the nearest alternate roadway that could provide access, Wipper Road, lies privately owned, roadless property.
The origins of the Fourth Street Bridge are unclear, but the parties agree that it is now owned by the city. The bridge itself is a rotting wooden plank structure that lacks such normal safety features as rails, and it has incurred significant damage during floods. Consequently, in 1998, the Oregon Department of Transportation (ODOT) recommended that the bridge be either repaired, replaced, or closed. After holding public hearings (at which plaintiffs, among others, testified), defendant adopted an ODOT-approved plan calling for closure.
Defendant informed plaintiffs that the bridge was going to be taken out of service and gave them three options. They could take ownership of the bridge; they could pay the cost of bringing it up to the standards required by ODOT; or they could petition the county for a “way of necessity” to Wipper Road pursuant to ORS 376.155. A “way of necessity” is a “road established * * * to provide motor vehicle access from a public road to land that would otherwise have no
Plaintiffs took their options under advisement and continued using the bridge by moving the portable barricades that blocked it. They also initiated this action against defendant, alleging (among other claims not part of this appeal) so-called inverse condemnation, the short-hand description of “a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.” Thornburg v. Port of Portland,
Defendants moved for summary judgment, contending that defendant’s decision to close the bridge was not a taking “for public use,” as specified in Article I, section 18, of the Oregon Constitution,
If we were to affirm bn ripeness, plaintiffs might then seek a way of necessity and thereafter pursue the then-ripe claim. To save plaintiffs that expense and to afford complete relief, we affirm the trial court on a more fundamental ground: Defendant’s action in closing the bridge was not an exercise of the eminent domain power to take private property for public use, even if the foreseeable result of the action
Most basically, the interpretation of Article I, section 18, put forward by plaintiffs cannot be derived from or reconciled with that provision’s language or its foundational premise. Section 18 guarantees just compensation when “private property” is “taken for public use.” Under plaintiffs’ theory, government must provide compensation when the use of public property is changed and the result is private nonuse. To achieve that inversion, plaintiffs argue that defendant’s “taking” is the destruction of plaintiffs’ own property, because closing the bridge has the incidental effect of eliminating one of plaintiffs’ property rights, that is, the right of access to their real estate. In addition, plaintiffs’ claim derives from the assumption that their right of access — the private property that government supposedly “takes” — is put to “public use” because the public benefits from its destruction. That reading of Article I, section 18, is at best implausible and at worst an affront to the idea that, generally speaking, words have meanings and sentences drafted by competent speakers of the language convey discrete thoughts — not to mention the idea that the interpretation of a constitutional provision should have some connection to its text.
Further, plaintiffs’ theory inverts the takings clause’s foundational purpose: to guarantee that no individual should have to pay the entire cost of a benefit that is shared by the general public at large. E.g., Cope v. City of Cannon Beach,
Finally, under well-settled Oregon case law, government action affecting private property exists along a continuum. At one end is actual physical appropriation of real or personal property, which obviously is the exercise of the
“A newly adopted health or environmental regulation may forbid the use of a fuel or the production of certain wastes and thereby cause the closure of a large plant. A tightened safety standard may devastate an investment in expensive machinery or product inventory. New building codes or other rules concerning fire safety or access for handicapped persons may make it uneconomic to maintain a hotel or residential building, with consequent financial loss. Business invests with knowledge of such governmental power to make laws for its conduct, and the balancing of regulatory goals against their economic consequences is the daily stuff of politics rather than of litigation for ‘just compensation.’ See Anthony v. Veatch,189 Or 462 , 494,220 P2d 493 (1950) (prohibition of ‘fixed gear’ fishing); City of Portland v. Meyer,32 Or 371 ,52 P 21 (1898) (prohibition of slaughter house). Regulation in pursuit of a public policy is not equivalent to taking for a public use, even if the regulated property is land.”
(Footnotes omitted.) See also Thomas v. Dept. of State Police,
The general rule applies even when the government action completely destroys the property on which it exercises its “police power.” Thus, demolition of a house for safety purposes is not a taking, Shaffer v. City of Winston, 33 Or App
In the present case, defendant’s action does not fall into any gray area between an exercise of eminent domain and exercise of the “police power”; it is clearly the latter. In closing the Fourth Street Bridge, defendant did not physically intrude onto plaintiffs’ property. Its action was not a direct regulation of private property. It acted in a purely arbi-tral capacity, deciding a conflict between plaintiffs’ right of access to their property and the general public’s right to freedom from hazard. See Fifth Avenue Corp. v. Washington Co.,
Affirmed.
Notes
Article I, section 18, provides: “Private property shall not be taken for public use * * * without just compensation * *
Because the authority of the state is plenary, subject to constitutional limitations, there is actually no separate and distinct power to act in support of public health and safety or any other purpose.