Interstate Highway Separation of Property - Oregon (Exclusive Farm Use Zone)

Tim,

Mike Berry (on this) forum used to be the County Surveyor located in Bend, Oregon (Deschutes County) will be a great resource for you.

The taking created 3 parcels. One 11 acre parcel, one 21 acre parcel and one 26 acre parcel. At least that's how it would be in my part of the woods. These parcels are exceptions to subdivision statutes. The state can take whatever they want, the two parcels are created by the ROW leaving them on either side. I can't see how the 21 acre and the 26 acre could ever be considered one parcel, with a fee taking even reversionary rights are interrupted. I understand, but don't like, the argument for easement highways, but interstates are always in fee (is this one?).

Of course, I'm not in Oregon so maybe they have different statutes.?ÿ

@mightymoe?ÿ

I'm an DOT surveyor. Mightymoe is correct. The DOT created 3 parcels from 1 parcel. It's up to the land owner to take care of the 2 split parcels.

I think it would depend on what interest the state acquired for highway purposes, an easement or fee simple. Lot of our major highways are easements. I've run into this here where the State acquired an easement and everyone after came along a treated it like a split estate, but it wasn't. Quickly became convoluted from a title perspective.?ÿ

@williwaw?ÿ

I'm sure it's possible, but I've never seen an interstate ROW as an easement.

The fact that the tax mapping does not show it as separate tax lots is highly suggestive that the lots remain a single entity, which cannot be sold separately.?ÿ ?ÿ

In 1963 the Oregon State legislature passed the Subdivision Control Act, which gave all counties and cities 10 years to enact ordinances that required review and approval of any subdivision of land.?ÿ Before enactment of those ordinances land could be subdivided at the owners discretion in places that had none. My guess is that Baker County would be such a place.?ÿ Afterward - 1973 at the latest - there needs to be agency review and approval. I have no idea when Baker County did it's part, but if it did so after 1970 then you probably have 2 "lots of record".?ÿ If it did so before that then your county records would have some record of said approval. But if there had been any such approval it would probably show up on the tax mapping.?ÿ

I know that in some states it doesn't matter whether the parcels are physically separate, they would need a subdivision plan to actually separate them in title and make them individual lots.

I was curious about this and having a very incomplete grasp on the subject, on a whim sent an email to Federal Highway Administration, not really expecting a response. Now if only the IRS was half as responsive:

"I wish I could provide a cut and dry answer to your question regarding land acquired for the Interstate but the answer is, it depends. There are many instances where Interstate ROW was acquired in fee but there are also instances where the Interstate was accommodated through an easement. The easements are most commonly found when the Interstate crosses through Federally owned land.

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The FHWA doesnƒ??t own the Interstate ROW. Ownership lies with each individual state/acquiring agency. The State DOT (or other relevant agency) has (or has access to) the official records relating to Interstate ROW boundaries within the State. The State DOT should consult the ROW plans, maps, deeds, and other records to identify what property was acquired for Interstate purposes. This includes consulting relevant records to identify whether there have been any changes in the Interstate ROW boundaries due to post-construction acquisitions or the disposal of land excess to highway needs.

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Let me know if you have any questions."

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(Redacted)

(Redacted)

Federal Highway Administration

Office of Real Estate Services

1200 New Jersey Avenue SE

Washington, DC 20590

(202)366-2035

Fax: (202)366-3713

Posted by: @williwaw

Federal Highway Administration

Office of Real Estate Services

1200 New Jersey Avenue SE

That's a nice new office they have; short stroll to the ballpark for afternoon games

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There is a specific ORS related to roads splitting properties.?ÿ I can't remember which one it is and I'm on the way out the field.

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@williwaw?ÿ

This is what I've seen. The interstate highways are owned by the State Highway Commissions. They are acquired in fee during the design phase. In many ways it simplifies working around them. Crossing BLM or other Fed lands creates an "easement" which should be shown on MT plats. If there are easements for interstate highways across private lands I haven't seen one. Not saying they don't exist or that I've spent much time researching the issue, I can only relate the jobs where I've worked around them, which isn't all that extensive. It's an interesting question.?ÿ

Try looking at the assessor records. Usually, even though it's the US of America, as owner, they pay PILT (payment in lieu of taxes) on any land that is assessable and considered real property. The answer might be in that area, just throwing it out there.

Posted by: @mightymoe

If there are easements for interstate highways across private lands I haven't seen one.

I know of one instance at least where a highway widening was acquired as an easement because of environmental cleanup concerns. The state didn't want to acquire title in fee and assume responsibility for cleaing up the old buried tanks of a decommissioned service station. It happens.?ÿ?ÿ

Posted by: @bakercoplanner

one of the pieces that is of little use to them as the farm/ranch is on the otherside of the freeway and they don't have access

I didn't work for OrDOT but I did work for a DOT from 1974 to 2021. During that time I never saw a taking leave a property inaccessible by splitting it. My understanding is that is unlawful. They would either make it accessible or purchase it. I did see the state purchase the inaccessible parcel in fee and later sell it if an access outside the ROW was figured out. Our state law requires the owner from whom it was purchased to get the first shot at it. In our state a taking in fee does not create two parcels from the original piece. It does not change the original deed from which the taking was purchased. Any subsequent description for sale of the original parcel would be the original description except the taking or the owner of both would likely be able to sell off one side thereby making it a discrete parcel. The choice of the owner - not the DOT or county.?ÿ

@norm?ÿ

Absolutely Agree - My experience as well.?ÿ I have heard it called an uneconomic remnant as well.

What is legal description of the property?

@norm?ÿ

Norm, the states I work in the process is statutory. The state statutes make an exception to the subdivision regulations that the parcels can be sold once they are split by a highway taking even without meeting the statutory minimum acreage limit for grant.?ÿ

If the limit is 160 acres, you own 180 acres, you cannot sell off a 160 keeping 20, but if a highway cuts the parcel into two, you now can sell the two 80 acre parcels that were created by the 20 acre highway taking. Same if the limit is 35 acres, 80 acres, ect.?ÿ

The main argument has been between fee takings and easements. It's been a back and forth, my county is now recognizing easements as a split, something they didn't a few years ago.?ÿ

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Posted by: @briniker

@norm?ÿ

What is legal description of the property?

Not sure I understand the question.?ÿ The deed verbatim before the highway taking I think is what you're after.?ÿ

@mightymoe?ÿ

Our DOT only does fee in the situation described in this thread. Highway takings and remnants are exempt from subdivision requirements here as well. The law requires an acquisition plat to be recorded with a surveyors seal for each taking that is purchased by a meets and bounds description tied to PLSS corners.?ÿ The plat includes restricted access notation if there is any.?ÿ

@john-putnam?ÿ

?ÿ92.010 Definitions for ORS 92.010 to 92.192.

(9) ƒ??Partitioning landƒ? means dividing land to create not more than three parcels of land within a calendar year, but does not include:

?ÿ(d) Selling or granting by a person to a public agency or public body of property for state highway, county road, city street or other right of way purposes if the road or right of way complies with the applicable comprehensive plan and ORS 215.213 (2)(p) to (r) and 215.283 (2)(q) to (s). However, any property sold or granted for state highway, county road, city street or other right of way purposes shall continue to be considered a single unit of land until the property is further subdivided or partitioned; or

?ÿ?ÿ?ÿ?ÿ?ÿ (e) Selling or granting by a public agency or public body of excess property resulting from the acquisition of land by the state, a political subdivision or special district for highways, county roads, city streets or other right of way purposes when the sale or grant is part of a property line adjustment incorporating the excess right of way into adjacent property. The property line adjustment shall be approved or disapproved by the applicable local government. If the property line adjustment is approved, it shall be recorded in the deed records of the county where the property is located.