(b) The department shall have the burden to establish that the factual basis for the presumption in paragraph (a) of this subsection does not exist.

(2)(a) An owner of real property abutting a state highway with an approach road that was in existence before April 1, 2000, is also presumed to have the department’s written permission for the approach road based upon documentation in any form that shows:

(A) That the approach road was in existence before July 16, 1949;

(B) That the approach road was in existence before the department accepted jurisdiction of the highway from a city or county; or

(C) That the approach road was built or rebuilt with the department’s knowledge or permission.

(b) The department shall have the burden to establish that the factual basis for the presumption in paragraph (a) of this subsection does not exist. The department may rebut the presumption in paragraph (a) of this subsection by a showing that there is insufficient documentation to determine whether the approach road was built or rebuilt with the department’s knowledge or permission.

(3) Subsections (1) and (2) of this section apply only where there is a right of access to the state highway.

(4) For approach roads presumed to have written permission under this section, the determination of prior use for the purposes of ORS 374.312 (4) and (5) is the use of the property on January 1, 2014.

(5) Except as provided in this section, an approach road built without the department’s written permission is subject to removal or reconstruction as provided in ORS 374.307.

(6) For purposes of ORS 374.302 to 374.334, 374.335 and 374.345, the presumption of written permission of the department for an approach road is deemed to be an approach permit issued by the department under ORS 374.310. [2013 c.476 §2]

Note: 374.308 and 374.317 were added to and made a part of 374.302 to 374.334 by legislative action but were not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.