Defendants respond that the statutes do not permit ODOT to condemn property for an unlawful use and that a use that would violate existing statutes and regulations is unlawful. They rely on State ex rel City of Eugene v. Woodrich, 295 Or. 123, 665 P.2d 333 (1983), in which the Supreme Court suggested that a court could deny a condemnor immediate possession of the property if the proposed public use would be "unlawful" in the sense of requiring a change in a general law, such as a statute, regulation, local ordinance, or general plan. 295 Or at 136. The difficulty with defendants' position is that Woodrich involved the issue of immediate possession, while in this case ODOT wants the land in order to seek changes in the applicable law in a way that would make the proposed use proper.
County road condemnation procedures were repealed by Oregon Laws 1981, chapter 153, and ORS chapter 35 is now the exclusive condemnation procedure. State ex rel City of Eugene v. Woodrich, 295 Or. 123, 133 n 9, 665 P.2d 333 (1983). Whatever the law may have been before 1981, ORS 35.255 is clear on its face as to what allegations now must be included in a condemnation complaint.
The issue on which the parties agree — that we review a public condemner's decision for abuse of discretion under ORS 35.235(2) — is one that neither the Supreme Court nor we have resolved. The Supreme Court observed in State ex rel City of Eugene v. Woodrich, 295 Or. 123, 132-33, 665 P.2d 333 (1983), that "[s]ome decisions of this court, antedating the enactment of [ORS 35.235], * * * recited the `fraud, bad faith, or abuse of discretion' formula as a limit on judicial review of a condemner's finding that it was necessary to take specific property for a public use.
The statute specifies that the resolution is presumptive evidence of public necessity for the use, necessity for the property and compatibility with the greatest public good and least private injury. Plaintiff's argument would make surplusage of the third item, the phrase in question, which plainly does not replicate the first two. In dicta in State ex rel City of Eugene v. Woodrich, 295 Or. 123, 132-33, 665 P.2d 333 (1983), the court left open the question of whether the phrase "presumptive evidence" in ORS 35.235 (2) incorporates the "abuse of discretion" and other standards of review developed in cases that predated the statute. The court suggested, but also left unresolved, the alternative possibility that the presumptions may be conclusive.