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Who Decides Whether Reasonable Access Exists - The Court or the Jury?

Red barrierState ex rel Dept. of Transp. v. Alderwoods (Oregon), Inc., 2015 WL 9589848, --- P.3d --- (2015)

The Oregon Supreme Court held that a government’s use of its police powers to eliminate or limit access to a property for public safety reasons is not compensable under Article I, Section 18 of the Oregon Constitution, so long as reasonable access to the abutting public right-of-way is maintained. The Court summarized its holding in the following proposition:

When governmental action interferes with an abutting landowner’s right of access for the purpose of ensuring 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.

In so holding, the Oregon Supreme Court continued a long line of cases denying property owners compensation when government uses its police power to eliminate or limit access.

The more interesting question is who decides whether a property owner retains “reasonable access” after the government acts to eliminate or limit access to the abutting right-of-way.  The property owner argued that determining whether access is reasonable is a question of fact to be decided by the jury.  The government argued that it is a question of law for the court to decide.  After carefully reviewing past decisions, the Oregon Supreme Court took the middle road, finding that it could be decided as a matter of law under the facts of the Alderwoods case, but “save[d] for another day the question of whether reasonableness of remaining access could present a factual question under circumstances not present in this case, such as when reasonable minds could disagree about whether a property owner retains an adequate means of ingress and egress.”

While the holding dashes any hope that a government’s elimination or limitation of access would automatically entitle a property owner to compensation, it provided no new guidance on when evidence of change of access is admissible at trial in a condemnation case.  It certainly fails to provide any bright line test for when a change of access transforms from a question of law for the trial court to a question of fact for a jury.  Given the importance of access rights on the highest and best use (and concomitantly the value) of real property, there is no doubt that this issue will continue to be litigated vigorously in condemnation cases where access to a busy highway or street is limited or eliminated.

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