New Developments with Pre-condemnation Rights of Entry

By Jennifer C. Paul – Partner, Condemnation, Litigation & Employment Practice Groups

When the government takes private property for public use, such as for public projects, right of way expansions or for other public development, the government is constitutionally required to pay just compensation, under the Fifth Amendment Takings Clause of the US Constitution and Article I Section 18 of the Oregon Constitution.  This means the government must pay the property owner fair market value for the acquisition of land or real property interest.  Generally speaking, in these cases, the government exercises their power of eminent and condemns the property.

But what happens when the government needs to enter your land, before they proceed with condemnation, to evaluate the property and determine whether the land is viable for the project?  Such preliminary investigations are often extremely comprehensive and include, but are not limited to: archaeological investigations; biological assessments; physical inspections for design purposes; geotechnical exploration to determine whether any contamination exists and/or to assess soil stability (including borings and testing); hazardous material assessments; noise testing and monitoring; vegetation assessment and/or removal; surveying; water resources or waterway assessments; wetland reviews; and entry for appraisal purposes.

In Oregon, there is a statute that provides for pre-condemnation entry, ORS 35.220.  While the statute makes clear that the owner is entitled to compensation for any physical damage caused or any substantial interference with the property’s possession or use caused by entry, it does not guarantee compensation upfront, and does not provide just compensation for the entry.

The above-described pre-condemnation entry for investigative purposes etc., is a direct interference with a property owner’s ability to exclude the outside world from its private property.  Pre-condemnation entry is a “taking” from the property owner that should be compensated consistent with constitutional requirements.  We have had success making this case, on behalf of property owners in recent years, primarily relying on Knick v. Township of Scott, and Cedar Point Nursery v. Hassid, two more recent U.S. Supreme Court Cases.

In Knick v. Township of Scott, Mrs. Rose Mary Knick owned a 90-acre rural property that had a small family graveyard located within the property boundary.  The Township of Scott Pennsylvania passed an ordinance requiring that all cemeteries be kept open and accessible to the general public during daylight hours, and that Township code enforcement officers could have access to entry upon any property to determine the existence and location of a cemetery. The Supreme Court in Knick determined that the ordinance at issue prevented Mrs. Knick from excluding others from her property and that she had a Fifth Amendment right of action immediately when her property was taken with out just compensation.

In Cedar Point Nursery v. Hassid, California’s Agricultural Labor Relations Board passed a regulation granting labor organizers the right to access agricultural employers’ property for purposes of soliciting unionization, up to three hours per day, 120 days per year. The U.S. Supreme Court held that the subject regulation constituted a violation of the Fifth Amendment Takings Clause in that the government action appropriated a right to invade employers’ property amounting to a per se physical taking.  In other words, the regulation appropriated for the union the owner’s right to exclude, which the Court recognized as a fundamental element of property rights.

Now, there is a new Oregon circuit court case that further supports an award of just compensation for pre-condemnation entry.  On September 6, 2023, Judge Wes Williams, Union County Circuit Court, issued an opinion in Idaho Power v. Bean, et al., which held that many uncompensated pre-condemnation entries under ORS 35.220 are unconstitutional under the US and Oregon Constitutions, absent voluntary permission to enter.  In making this ruling, Judge Williams determined that the US Supreme Court’s Cedar Point Nursery v. Hassid decision controlled.  While circuit court decisions do not provide binding precedent, this is further persuasive authority coming out of Oregon that supports compensated pre-condemnation entries.

Here are some take-aways for property owners:

– If you receive a notice from a government entity for entry on to your property, you may be entitled to compensation for the action (it likely will not be offered upfront by the condemner);
– In addition to the issue of compensation, we can assist you with negotiating reasonable entry—i.e. an appropriate time, place or conditions of entry;
– Pre-condemnation is one of the first steps in the broader condemnation process, engaging counsel early can protect your right not only with regard to pre-condemnation entry but in the underlying condemnation proceeding.

We look forward to hearing from you and are ready to assist with any pre-condemnation considerations or condemnation matters.



Paul J. Sundemier - Lawyer at Saalfeld Griggs PC.

Saalfeld Griggs’ condemnation team includes Jennifer Paul (Partner) and Paul Sundermier (Of Counsel).  They are available to assist with condemnation matters as well as unconstitutional takings.  Call our office at 503.399.1070.

The information in this article is not intended to provide legal advice. For professional consultation, please contact David Briggs at Saalfeld Griggs PC. The contents of this publication are current as of December 19, 2023 and should not be construed as legal advice. Information in this publication may only apply in certain states. Readers should not act upon information presented in this publication without individual professional counseling. Receipt of this publication does not constitute or create an attorney-client relationship. The material in this publication may not be reproduced without the written permission of Saalfeld Griggs PC. © 2023 Saalfeld Griggs PC