ODOT v. Alderwoods

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.

ODOT, as part of a project to improve Highway 99W, brought a condemnation action against Alderwoods (Oregon), Inc. (Alderwoods) to acquire all its rights of access between its property and the highway in order to cut off two driveways that had allowed for direct access from Alderwoods' property and Highway 99W. Alderwoods continued to have access to its property via two driveways that connected it to another road, which in turn provided access to the highway. Before trial, the State sought to exclude as irrelevant evidence relating to the diminished value of the property resulting from elimination of the two driveways, which the trial court granted. Alderwoods' appealed the order granting the State's motion in limine; The Court of Appeals affirmed by an equally divided court. On this appeal, Alderwoods argued that under Article I, section 18, of the Oregon Constitution and ORS Chapter 374, it is entitled to compensation for the diminished value of its property as a result of the elimination of the two driveways onto Highway 99W. After thorough discussion, the Court held that any easement a property owner possesses to access an abutting public road is qualified and subject to the public's right to use and improve public roads, so long as the property owner continues to have reasonable, if less convenient, access to its property; because Alderwoods had two other driveways by which it could reasonably access its property, and because it did not present any evidence showing a material difference in the access after two of its four driveways were eliminated, the elimination of the driveways along Highway 99W did not constitute a taking of Alderwoods right of access under Article I, section 18. The Court also held that the provision in ORS chapter 374 Alderwoods relied upon were procedural in nature and the legislature did not intend to extend substantive property rights to which a landowner is not entitled under Article I, section 18. Decision of the Court of Appeals and judgment of the circuit court affirmed.