RIGHT OF WAY AND REAL PROPERTY
Property Grants to Cities and Counties for Streets and Roads
(1) General Policy: The grant of property or property rights acquired by highway funds is subject to statutory and constitutional restrictions. This administrative rule is enacted in order to assure that those restrictions are satisfied when property or property rights are granted to cities or counties for street or road purposes by ensuring that such transfer is in the public interest and that the highway funds are being adequately conserved.
(2) The Department of Transportation receives requests from cities and counties for grants of property owned by the department for construction of streets and roads which are not part of the state highway system. Subject to the following conditions, the department may sell or transfer property not on operating right of way if the property is declared surplus to the needs of the department and may grant easements on operating right of way for such street and road purposes:
(a) Sale or transfer of property not on operating right of way declared surplus:
(A) If the proposed street or road is determined not to benefit the state highway system the property shall be appraised and that value must be paid before property rights are transferred; and
(B) If the proposed street or road is determined to be a distinct and direct benefit to the state highway system the property shall be appraised, the value of the proposed street or road to the state highway system shall be determined and if the values are approximately equal the grant shall be given at no cost to the city or county, otherwise the difference between the appraised value and value to the state highway system must be paid before the property rights are transferred.
(b) Grant of easement on operating right of way:
(A) The property will be reviewed for the pos-sibility of revenue production, and if there is such a possibility, the property will be appraised by the right of way section and an appraised value given:
(i) If the proposed street or road is determined to directly and distinctly benefit the state highway system the easement may be granted at no cost to the city or county;
(ii) If there is determined to be no possibility of revenue production the easement may be granted at no cost to the city or county; and
(iii) If there is determined to be a possibility of revenue production and the proposed street or road is determined not to be a benefit to the state highway system the appraised value must be paid by the city or county prior to a grant of easement.
(B) A grant of easement on operating right of way are also subject:
(i) Review and approval by Federal Highway Administration;
(ii) Review and approval by the department of the street or road design and its effect on the safety and operation of the highway; and
(iii) Compliance with section (3) of this rule, including payment of administrative costs.
(3) A grant of easement, and sale or transfer of department property is also subject to the following:
(a) Payment by the city or county of administrative costs, incurred by the department in processing and reviewing the request, including the proposed design, and in appraising value and determining revenue production possibilities. The administrative costs will be based on actual documented costs incurred plus a ten percent charge for general administration;
(b) Prior to the transfer of any property rights a fully approved and executed written agreement must be entered into between the department and the city or county outlining details of design, construction and cost responsibility; and
(c) All grants or transfers constitute only a transfer of a property right, and do not excuse the city or county from complying with any other requirements or obtaining approvals necessary under existing law for street or road construction.
The purpose of OAR 734-035-0010 through 734-035-0040 is to outline a process for removing personal property from state highway rights of way by the Department of Transportation under ORS 377.650 and 377.653 where the personal property is reasonably believed to be the result of illegal camping.
Stat. Auth.: ORS 184.616, 184.619 &
Stats. Implemented: ORS 377.650 & 377.653
Hist.: HWY 12-1990(Temp), f. & cert. ef. 7-20-90; HWY 16-1990, f. & cert. ef. 12-28-90; HWD 4-2012, f. 2-21-12, cert. ef. 2-24-12; HWD 3-2014(Temp), f. & cert. ef. 6-25-14 thru 12-21-14; HWD 5-2014(Temp), f. 7-9-14, cert. ef. 7-10-14 thru 12-21-14; HWD 9-2014, f.11-26-14, cert. ef. 12-8-14
Definition of Personal Property
(1) Personal property includes items which are reasonably recognizable as belonging to individual persons and which have apparent utility. Items which have no apparent utility or are in an unsanitary condition are considered junk and will be discarded.
(2) Weapons, drug paraphernalia, and items which reasonably appear to be either stolen or evidence of a crime will be turned over to the appropriate law enforcement agency.
Removal, Storage and Retrieval
(1) Personal property (as defined in OAR 734-035-0020) will be separated during cleanups from trash/debris/junk (which will be immediately discarded) and items to be turned over to law enforcement officials and stored. The personal property shall be stored for no less than 30 days. During that period it will be reasonably available to persons claiming ownership of the personal property.
(2) Each district will arrange in advance for a location to store personal property. The storage facility should be reasonably secure. The location should be reasonably accessible to the cleanup area and preferably served by public transportation. If a Department of Transportation facility is used, the address of the facility will not be publicized. Instead, a telephone number to arrange an appointment to pick up claimed personal property will be provided. The telephone number should reach an office which is staffed during normal business hours (8 a.m. to 5 p.m. weekdays). A person claiming property must be able to schedule an appointment at a convenient time (also during business hours).
Scheduling and Notice; Costs
(1) In locations where camping or staying overnight regularly occurs, signs may be posted by the Department announcing that camping is not allowed according to OAR 734-020-0095. In locations not open to public entry, signs will be posted by the Department according to 734-035-0200. Personal property left on state highway right of way and reasonably believed to be the result of illegal camping may be removed from the right of way after the Department posts proper notice in accordance with this rule.
(2) Written notice will be posted in a conspicuous location in the general vicinity of the personal property to be removed. When the personal property is under a bridge, along a river, and within the urban growth boundary, notice will be posted in a conspicuous location within 30 feet of the personal property. The notice is to be posted at least ten days but not more than 19 days prior to removal of the personal property by the Department. In locations not open to public entry, notice is to be posted at least 24 hours prior to removal of the personal property by the Department.
(3) Notwithstanding subsection (2) of this rule, when the Department determines that either:
(a) personal property on highway right of way in locations not closed to public entry is in violation of environmental laws, the Department may remove the personal property 24 hours after posting notice.
(b) an exceptional emergency exists, personal property may be removed without notice described in this rule. An “exceptional emergency” is a situation which must be immediately addressed to avoid greater harm such as site contamination by hazardous materials or that either the personal property itself of individuals entering the location to retrieve the personal property presents an immediate danger to human life or safety.
(4) The written notice must be laminated or weather resistant and include:
(a) The date the notice was posted; for locations not open to public entry, the date and time the notice was posted;
(b) The date by which personal property must be removed by the property owner;
(c) The time frame in which the Department may remove the personal property; for locations not open to public entry, the Department may remove the personal property within 24 hours to 7 days after the date and time of the posting.
(d) The telephone number where information on recovering the property may be obtained; and
(e) The length of time the property will be stored by the Department.
(5) If the notice is removed during the posting period, the Department may proceed with the removal of the personal property but will replace the notice at the site to inform property owners about how to claim the personal property.
(6) Written notices will be in both English and Spanish.
(7) A $2 charge may be made for the cost of removal and storage of the personal property. No charge will be made for the cost of the personal property removal generally.
Stat. Auth.: ORS 184.616, 184.619 &
Stats. Implemented: ORS 377.650 & 377.653
Hist.: HWY 12-1990(Temp), f. & cert. ef. 7-20-90; HWY 16-1990, f. & cert. ef. 12-28-90; HWD 4-2012, f. 2-21-12, cert. ef. 2-24-12; HWD 9-2014, f.11-26-14, cert. ef. 12-8-14
It is the general policy of the Department of Transportation to efficiently and economically dispose of real property that is determined by the agency to be surplus.
Determination That Property is Surplus
The following criteria may be used to determine real property is surplus: The property is no longer needed by the agency for public purposes.
Notice to Department of Administrative Services
Upon declaring property to be surplus to its needs, the Department of Transportation shall notify the Department of Administrative Services of the intent to sell the property.
Appraisal of Surplus Property
(1) Before offering for sale any real property or equitable interest therein owned by the Department of Transportation, the Department shall cause the property to be appraised by one or more competent appraisers. All appraisals so obtained shall be reviewed in compliance with the Department's Right of Way Manual to insure accuracy and adequacy of the value reported for the real property.
(2) Said appraisal(s) and the appraisal review shall be used by the Department's Right of Way Manager to establish the asking price for the real property.
(3) Except as provided in OAR 734-035-0110, if an asking price in excess of $5,000 is established for any surplus property, the property shall not be sold to any private person until competitive bids have been requested by the Department.
[Publications: The publication(s) referred to or incorporated by reference in this rule are available from the agency.]
Publication of Notice of Sale
(1) Except as provided in OAR 734-035-0110, the Department shall give notice of all sales of real property or interest therein with an asking price in excess of $5,000.
(2) The notice of sale shall contain:
(a) A description of the property by street address and/or by legal subdivision;
(b) The minimum price for which the property will be sold;
(c) A brief statement of the terms of the sale; and
(d) A source to contact for information about the property.
(3) The notice of sale shall be published in accord with the following minimum time standards:
(a) For properties valued between $5,001 and $25,000 -- Twice during the two-week period preceding the sale by publication in a newspaper of general circulation in the county in which the property is located; or
(b) For properties valued in excess of $25,000 -- Three times during the three-week period preceding the sale by publication in a newspaper of general circulation in the county in which the property is located, and in such other publications as the Department deems appropriate.
(4) In addition to the minimum standards for publication contained in section (3) of this rule, the Department may provide more extensive notice of sale if such additional exposure is prudent due to value of the property, intense interest on the part of the public, or other factors.
(5) In addition to the public notice by advertisement, the Department shall, as much as is practicable, post properties offered for sale with signs indicating their availability for purchase.
Property Sales to Political Subdivisions
(1) Political subdivisions, as defined in ORS 271.005, and non-profit housing providers/housing authorities, shall be afforded the first opportunity, after other state agencies, to purchase surplus real property.
(2) The Department may require at the time of sale or transfer of real property to a political subdivision that the property shall be for use of a public purpose or benefit, and not be for resale to a private purchaser.
Stat. Auth: ORS Ch. 184, 271 & 366
Stats. Implemented: ORS 270 .100
Hist.: HWY 9-1990, f. & cert. ef. 5-24-90
Exception to Appraisal Requirements and Publication of Notice of Sale
(1) Purpose. The purpose of this rule is to establish criteria and procedures to exempt surplus real properties from the usual appraisal and public notice requirements prior to disposal, as allowed by ORS 184.634.
(2) Definitions. The following definitions apply to this rule:
(a) "Minimal value" means a value of $20,000 or less.
(b) "Formal appraisal" means the appraisal process described in OAR 734-035-0080.
(3) Exempt Properties. Notwithstanding OAR 734-035-0080 and 734-035-0090, the Department may sell or dispose of real property or an interest therein direct to a private party without publication of a notice of sale or formal appraisal when:
(a) The property, because of its size, shape, location, utility, condition of title, or restriction imposed upon the property by the Department, has minimal value and is useful only to adjacent property owners; or
(b) The property may not be disposed of to anyone other than adjacent property owners because of local land use ordinances.
(4) Requirements in lieu of formal appraisal and publication:
(a) When, under this rule, a property is exempt from the formal appraisal process, the Department will determine the value of the property. The Department may use valuations or appraisals of comparable properties, assessors' reports, or any other data that adequately demonstrates the value of the subject property. The Department will include in its file the data it used to determine the value or a summary of the data.
(b) When, under this rule, a property is exempt from the publication requirements of OAR 734-035-0080 or 735-035-0090, the Department will notify adjacent property owners, and the local road authority when the property is adjacent to a road, of the proposed sale of real property at least 21 days before the date of the sale of the real property. The 21 days will be counted from the date the notice is hand delivered to the address, or from the date of mailing. The following apply to notification:
(A) The notification must be in writing and include a description of the property to be sold, the terms of purchase, and an opportunity to bid;
(B) The Department will notify by hand delivery, or by certified or registered mail, at the discretion of the Department. Delivery or mailing will be to the last known residence address of the adjacent property owner(s) of record in the county clerk's office in the county where the property is located. If the Department has another address it believes to be more current, it may use that address in place of the address on file with the county clerk; and
(C) Actual receipt of the notice by the adjacent property owner is not necessary for the Department to meet the requirements of this rule.
Stat. Auth.: ORS 184.616, 184.619 & 184.634
Stats. Implemented: ORS 184.634
Hist.: HWY 9-1990, f. & cert. ef. 5-24-90; HWD 3-2005, f. & cert. ef. 4-26-05
Determination of Most Advantageous Bid
(1) The decision of the Department on the question of the most advantageous bid shall be final and conclusive.
(2) The Department shall reserve the right to accept or reject any bid.
Procedure If No Satisfactory Bid Received
(1) At any time during a period of one year after the auction date from which no satisfactory bid was received, the Department may sell the property at a private negotiated sale.
(2) In negotiating a private sale pursuant to section (1) of this rule, the Department shall consider the economic benefit to the Department and the preservation of the Highway Trust Fund.
Notification of Hazardous Tree Removal from Private Property
(1) Pursuant to ORS 366.365, when the Department determines that any tree located on private property creates an immediate and substantial risk of damage or injury by obstructing, hanging over or otherwise encroaching or threatening to encroach in any manner on a state highway, and the property owner isn’t readily available, it may go upon such property to cut down or remove such tree.
(2) For the purposes of this rule, a tree creates an immediate and substantial risk of damage or injury when it is determined by the District Manager, or designee, that such tree interferes with the safe, unrestricted movement of traffic; is encroaching on the state highway; or is in a condition that creates a reasonable likelihood it will, in the foreseeable future, encroach on the state highway to a degree that traffic should be restricted or prohibited from using the highway.
(3) The Department, when cutting down or removing any tree from private property, will take measures reasonable under the circumstances to protect the property upon which such tree is located and the value of the cut or removed tree.
(4) After cutting down or removing any tree as described in this rule, the Department will notify the owner of the private property by sending written notice by certified mail to the property owner listed in the county tax records.
(5) The written notice will include:
(a) A general description of the location of the private property and the date any tree was cut down or removed from the private property; and
(b) Information concerning the location of the tree or how such location can be obtained.
(6)(a) The tree will be left on the private property if it is reasonable to do so and can be accomplished in a safe manner.
(b) If the tree can not reasonably be left on the private property, the notice will also include Department contact information such as a telephone number or address and a contact name to claim any tree removed from the private property.
(A) The property owner will have 30 days from the date of the written notice to claim and recover the tree. Any cost incurred to claim or recover the tree is at the property owner’s expense.
(B) The person claiming the tree must be able to show a right to possess the tree; such as a copy of the certified letter sent by the Department. Any tree not claimed within 30 days becomes the property of the Department to be disposed of at the Department’s discretion following standard Department practices.
Stat. Auth: ORS 184.616, 184.619, 366.205, 366.365
Stats. Implemented: ORS 366.365
Hist.: HWD 6-2010, f. & cert. ef. 6-16-10
Designation and Posting of Real Property as Closed to Public Entry
(1) The purpose of this rule is to identify the circumstances under which the Department of Transportation will designate and post real property owned or controlled by the department as closed to public entry for purposes other than those authorized by statute, rule or express permission of the department. This rule does not restrict the use of the highway for transportation purposes or access onto the highway allowed under Oregon Administrative Rule Chapter 734, Division 51.
(a) The department manager responsible for the real property may designate real property as closed to public entry for the following purposes:
(A) To ensure the safe construction, maintenance, operation and use of transportation facilities;
(B) To ensure the health and safety of department employees, contractors, or the general public;
(C) To prevent damage or loss to department property;
(D) To prevent damage to natural resources, including but not limited to soil, water, wetlands, and other environmentally-sensitive lands;
(E) To prevent damage, vandalism, theft or other loss of cultural or archeological resources.
(b) Decisions to designate real property as closed to pubic entry made on or after January 1, 2015 will be documented by the department manager.
(c) The department will provide notice of the designation under section (1) in a manner reasonably calculated to apprise the public that entry is prohibited, including but not limited to the posting of conspicuous signage.
(d) Signage posted under this section will, at minimum, include the statement of “No Trespass.”
(2) Public entry or placing of any personal property upon department real property designated as closed to public entry under this rule is prohibited. Violators may be subject to citation under the laws of the State or local ordinance and asked to leave the area without delay.
Stat, Auth.: ORS 184.616, 184.619,
366.205 & 810.030
Stats. Implemented: ORS 366.205 & 810.030
Hist.: HWD 4-2014(Temp), f. & cert. ef. 6-25-14 thru 12-21-14; HWD 6-2014(Temp), f. & cert. ef. 7-9-14 thru 12-21-14; HWD 8-2014(Temp), f. & cert. ef. 8-20-14 thru 12-21-14; HWD 10-2014, f. 11-26-14, cert. ef. 12-8-14
State Archives • 800 Summer St. NE • Salem, OR 97310