Here's one in which we've been waiting for the ball to drop, since we filed an amicus brief in the case. Unfortunately, the result in State of Oregon v. Alderwoods (Oregon), Ltd., No. SC062766 (Dec. 31, 2015) wasn't as hoped for, but looking for silver linings, was a lot less bad than it could have been.
Bottom line is that the Oregon Supreme Court concluded that a property owner does not have a right of direct access to a highway, only a right of reasonable access. Thus, when a project to improve Highway 99 cut off Alderwoods' driveways on Highway 99, it was not a taking of access because Alderwoods still had access to Highway 99 via a driveway on Warner Avenue:
The above cases demonstrate three governing principles regarding the common-law right of access of a property owner to an abutting public road. First, it is well established that a common-law right of access by property owners attaches to property as an interest in land. Specifically, an abutting property owner holds an easement of access, appurtenant to the abutting land, for the limited purpose of providing a means of ingress and egress to and from the owner’s property by means of the abutting public road. Second, the right of access to an abutting road is limited in scope. An abutting property owner does not have an absolute right to access an abutting road at the most direct or convenient location. Rather, the owner has a qualified right that is subject to the government’s interest in regulating the safe use of public thoroughfares. Third, the owner’s right of access ensures only reasonable access to and from the owner’s property by means of the abutting road. Those three principles, in combination, reduce to this central proposition: When governmental action interferes with an abutting landowner’s right of access for the purpose of ensuring the safe use of a public road, and the abutting landowner retains reasonable access to its property, no compensable taking of the property owner’s right of access occurs.
Slip op. at 517.
A photo of the "after" condition of the property here.
While this was not the result which our amicus brief advocated, at least the court did not adopt the reasoning of Court of Appeals Judge Armstrong, whose opinion argued that the state's ability to regulate access to the highway was enough to keep Alderwoods from having a property interest. See State v. Alderwoods (Oregon), Inc., 336 P.3d 1047 (Or. App. 2014) (Armstrong, J., concurring) (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 we noted above, silver linings.
There's more, of course, and if there is anything that you should be aware of that strikes us after we read the opinion in detail, we'll post it.
State of Oregon v. Alderwoods (Oregon), Inc., No. SC062766 (Or. Dec. 31, 2015)
