In State of Oregon v. Alderwoods (Oregon), Inc., No. A146317 (Sep. 17, 2014), an en banc equally-divided Oregon Court of Appeals affirmed the trial court's determination that while the property owner possessed a property right in access to a public highway, that common law right was worth ... pretty much nothing.
Being an affirmance by an equally-divided court, there's no majority opinion only a per curiam statement that's exactly 6 words long ("Affirmed by an equally divided court."). The real back-and-forth takes place in the concurring and dissenting opinions.
Under Oregon common law, owners of properties abutting a state highway or county road have a right of access to the highway. And while the concurring judges in Alderwoods paid lip service to that right, they concluded that since that right may be regulated, there was no need for the state to pay just compensation when it took that right as part of a highway improvement project.
In summary, the state condemned defendant's access rights in the context of a project that would--and did--result in a regulatory denial of access to Highway 99W to promote the safe and efficient use of the highway as a highway. Whatever the measure of damages could be in those circumstances, it is not the diminished value of the land resulting from the loss of access to Highway 99W because, as a result of the regulatory elimination of the curb cuts and driveways, the property has no lawful access to Highway 99W irrespective of the condemnation of the access to the highway. As the trial court correctly concluded, evidence addressed to a measure of damages based on the loss of access was irrelevant. I conclude, therefore, that the trial court's judgment should be affirmed.Slip op. at 11-12 (Armstrong, J., concurring) (footnotes omitted).
Four judges dissented, and would have held that the state owed compensation for taking of the access right:
Apparently recognizing the inherent tension in bringing a condemnation action to acquire defendant's right of access and also asserting that the taking does not give rise to a right to compensation, on appeal, the state understandably diminishes emphasis on the law relating to eminent domain and focuses instead on the state's regulatory authority over access to public highways. On appeal, the state characterizes the issue as whether its action--which it describes not as the acquisition of an abutter's right of access but as the elimination of the curb cuts--resulted in a compensable taking. That action, the state explains, is nothing more than an exercise of the state's regulatory power over access to public highways, and, because defendant retains access to its property from Highway 99W via Warner Avenue, the trial court correctly granted the state's motion in limine to exclude all evidence relating to "any diminution in value of defendant's property resulting from the elimination of the curb cuts." However, the state did not purport merely to regulate defendant's access to Highway 99W by the elimination of curb cuts. True, it did that in a separate administrative proceeding initiated after this action, but in this action, the state sought also to acquire defendant's abutter's right of access through eminent domain.Slip op. at 16-17 (Wollheim, J., dissenting)
We'll have more on the decision, since the property owner has asked the Oregon Supreme Court to review the case, and it seems very likely that the court will take it.
And as for the above photo -- of Portland's iconic Mt. Hood, taken from a nearby alpine lake on a bitterly cold but very clear day during a recent short trip to Oregon to honor the retirement of our celebrated colleague and the dean of the Oregon land use bar, Ed Sullivan -- what does that have to do with the case? Absolutely nothing: it's just a nice (and we think somewhat representative) photo of Oregon we thought you might enjoy.
Stay tuned for more.
State of Oregon v. Alderwoods (Oregon), Inc., No. A146317 (Or. App. Sep. 17, 2014) (en banc)
