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Eminent domain defense might be breaking new ground

Willamette Law School Professor Paul Diller talked with the Keizertimes about what makes the Keizer eminent domain case unique.


Of the Keizertimes

UPDATE: St. Edward Catholic Church has agreed to sell the land in question for $2.26 million. The district will take possession on Feb. 19 if no further obstacles appear.

Usage of eminent domain claims to take possession of property needed for public use is older than America itself, but the defense
being deployed by St. Edward Catholic Church to ward off a claim by the Salem-Keizer School District is distinct. And it’s part of a handful of cases that could one day reach the highest court in the nation, according to a professor at Willamette University Law School.

“The church is asserting here that the fact that they are a religious entity should make it harder to take their land. It’s an argument buttressed by the relatively recent Religious Land Use and Institutionalized Persons Act (RIULPA),” said Professor Paul Diller, who spoke with the Keizertimes as part of a monthly on-air interview segment at the studios of KMUZ on Friday, Feb. 8. 

RIULPA was passed in 2000 in response to the U.S. Supreme Court striking down the Religious Freedom Restoration Act that was designed to curtail government action burdening religious organizations. RIULPA is much more narrow and applies specifically to land use. 

“RIULPA is often used when they think [churches] are being discriminated against in regard to zoning. What the church is arguing here is that it also applies to eminent domain. A couple of courts have accepted it and some have a rejected it. I will be curious to see how that fares,” Diller said. 

While Judge David Leith rejected a request to dismiss the school district’s claim on grounds of RIULPA and procedural disputes, the issue could come back around if the church decides to appeal an eventual decision. 

The school district is seeking to take possession of six acres of land owned by the church to accommodate expansion at McNary High School. McNary is landlocked and cannot proceed with its plans unless it acquires the property. 

The district paid for two appraisals of the property and the church rejected a $1.75 million offer in December. According to the district, the church’s counteroffer was nearly twice that amount, but church officials would not confirm it. 

Despite voters approving a bond to fund the expansion and other improvements throughout the district in 2018, Diller said courts are unlikely to see that as a mandate. 

“It may be as a rhetorical tool, but we’re talking about a school district bond passed by more than just the city of Keizer,” he said. 

As far as who holds the burden of proof in cases on eminent domain claims, Diller said the district will have a slight edge in that it intends to use the property for the public good.

“The details vary by state in Oregon, there is a presumption in favor of the state’s necessity for the land,” he said. “The burden is on the condemnee to to show why the land is not needed for the public interest.”

However, the fair market value the district has to pay will be decided by a jury on a more level playing field. 

“Both parties are likely to turn to experts who do a market valuation. The [development] possibilities are highly relevant. If someone is willing to pay for future value, which they quite often are, then that’s something that could come into play,” Diller said. 

To listen to the full interview with Diller, visit