PLF files amicus brief in Oregon “right of access” case

In Oregon—as in most states—a landowner whose property abuts a highway has a right to directly access that road. Thus, an abutting owner is entitled to just compensation when the state acquires the landowner’s right of access in an eminent domain action. Or at least that’s how the story is supposed to go.

But, as we are all well-aware, the government frequently looks for ways to make end runs around the Constitution. In the case, Alderwoods (Oregon), Inc. v. Oregon, the Oregon Department of Transportation, as part of a project to improve SW Pacific Highway in Tigard, brought a condemnation action against Alderwoods to condemn “all abutter’s rights of access” between the land and the highway. Before trial, ODOT asked the court to bar Alderwoods from introducing any evidence showing that the elimination of existing curb cuts and driveways significantly impacted its access rights and thereby damaged the value of the property. The trial court granted the government’s motion, resulting in a paltry judgment and uncompensated losses, which Alderwoods appealed.

The trial court’s decision was affirmed by an equally divided, en banc decision from the Court of Appeals (the unusual decision is discussed here). The competing opinions offer two very different views about whether the Takings Clause protects a landowner’s right to access an abutting highway. Judge Armstrong’s opinion states that, as a matter of Oregon law, “a governmental regulation or modification of a road for road purposes that deprives a landowner of access to the road does not give rise to a compensable taking of the owner’s access right.”

Writing in dissent, Judge Wollheim notes that the Armstrong opinion improperly relies on principles borrowed from regulatory takings and inverse condemnation case law, ignoring the fact that this is an eminent domain case. Applying condemnation law, Judge Wollheim concludes that Alderwoods should have been permitted to introduce evidence of how ODOT’s decision to extinguish its right of access impacted the value of its property. He notes that Oregon’s relevant eminent domain statutes set out two requirements that should control this case: First, the state is required to pay just compensation when it uses eminent domain to acquiring an interest in private property; and second, the statute requires that the landowner be permitted to put on evidence of “[a]ll damages by reason of deprivation of the right of access.”

Oregon’s Supreme Court took review of the case to resolve the appellate court’s fractured decision.

Earlier today, PLF lawyers filed an amicus brief, joined by the National Federation of Independent Business Small Business Legal Center, in support of the landowners because it is essential, both for the parties and future condemnation defendants, that the courts uphold the well-settled common law of property and the protections guaranteed by the Constitution. After all, an incorrect decision will deprive abutting landowners of their rights to just compensation under the Fifth Amendment.

PLF’s amicus brief explains that the right of access is well-recognized in the common law of property. It is a right that is inherent in the ownership of land abutting a highway. Although the right can be subject to reasonable regulation, it cannot be extinguished or substantially impaired without compensation. Thus, when a landowner alleges that the government’s condemnation of access rights impairs his or her right to access the property, PLF’s brief argues that the owner must be allowed to put on evidence of diminished value to establish the proper measure of compensation.