A property owner’s right of access to an abutting public road is one of the more legally arcane sticks in the so-called “bundle of sticks” that constitute property rights. Known as a “common-law right of access,” the legal framework has developed via case law over time. The courts have described this right as being in the nature of an easement inherent in the land to access an abutting public street. As populations have gotten denser and road regulations have gotten more sophisticated and multimodal, one of the thornier legal questions has been whether the government must compensate a landowner if it closes an existing access. Under Article I, Section 18, of the Oregon Constitution, when the government takes a property interest from a private property owner for a public use, it must typically condemn the interest and pay the property owner just compensation, not only for the value of the interest taken, but also for any diminution in value to the remaining property as a result of the taking.
Oregon case law was conflicted on this question until the Oregon Supreme Court’s decision in State v. Alderwoods (Oregon), Inc., 358 Or 501, 366 P3d 316 (2015). In this case, the Oregon Department of Transportation (ODOT) proposed to close two access driveways to Highway 99W as part of an improvement project, leaving the property with two access points on a secondary road that intersected with Highway 99W. The question was whether the trial court appropriately excluded evidence of the reduction in the value of the property as a result of the closure of the two direct access points. An en banc Oregon Court of Appeals evenly split on the question in a multi-opinion decision.
On review, the Oregon Supreme Court analyzed the years of case law and synthesized it as follows:
“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.” Alderwoods, 358 Or at 517 (emphasis added).
The Oregon Supreme Court concluded that because the driveways were closed for safety reasons and the property had reasonable alternative access, the landowner was not entitled to compensation under Article I, Section 18, as a matter of law. The court’s analysis indicated that if a driveway change eliminates all access, or if the remaining access it not “reasonable,” that compensation might be due. But the bottom line is that ODOT (and other road authorities such as cities and counties) have broad authority to manage access to public roads for safety and other public transportation-related reasons without having to compensate abutting property owners except in the limited circumstances noted above (or where a statute may separately require compensation).
There is one other circumstance where a property owner could have a right to just compensation for closure of a driveway: where the owner has an actual deeded easement of access at a specific location. This was the case in ODOT v. Hanson, 162 Or App 38, 987 P2d 538 (1999), rev denied, 330 Or 252, 6 P3d 1099 (2000). The property owner’s predecessor in title had reserved access easements at particular locations when the owner conveyed property to ODOT for an improvement to Highway 20 outside of Bend. The Hanson court distinguished this situation from a common-law right of access and concluded that the owner was entitled to just compensation for the taking. So a property owner facing a forced driveway closure should check the deed records to see if a predecessor reserved an access easement at a particular location. This is more likely to be the case if the driveway has been in place for a number of years serving the same type of use.
