Emerald People's Utility District v. Pacificorp , 101 Or. App. 48 ( 1990 )

NEWMAN, J.

Plaintiff petitions for Supreme Court review and, thereby, for our reconsideration of our opinion. ORAP 9.15. We allow reconsideration to address one of plaintiffs arguments, and we adhere to our opinion.

The trial and appeal in this case turned largely on defendant’s presentation of economic evidence and plaintiffs contentions that the economic effects of its taking decision fell outside the range of judicial inquiry. Plaintiff asserts that our interpretation of ORS 35.235(2) establishes a general rule that economic considerations are the sole determinant of whether a condemnation is “most compatible with the greatest public good and least private injury.” Plaintiff maintains that, to pass the statutory test as we have construed it, a proposed condemnation

“must yield a public benefit that exceeds, in dollar terms, the harm, in dollar terms, to the condemnee. * * * [Economics may be a relevant factor, but nothing in the statute, much less its legislative history, even suggests that economics must be the only factor, as the Court of Appeals said.”

We did not suggest that only economic considerations can ever be relevant to the determination of compatibility with the greatest public good and the least private injury. We did not say that non-economic factors could never be considered or could never outweigh the harmful economic effects of a proposed taking. Rather, we responded to plaintiff’s arguments that the courts can never consider economic factors in applying the statutory test. We also rejected the specific non-economic factor that plaintiff asserted justified the proposed taking, notwithstanding its economic effects. See 100 Or App at 87. Plaintiff misreads our rejection of its arguments as establishing a general principle that we did not state.

Reconsideration allowed; former opinion adhered to.