Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the January 25, 2012 mailing of "Constructive Notice":

Unusual Use of Eminent Domain

An Oregon city has filed an eminent domain proceeding in order to “remove” a restrictive covenant from property it already owns. City of Lake Oswego v. Blake, et al., Clackamas County Circuit Court #CV12010184 (January 9, 2012). You can read the complaint here. According to a press release: “the City of Lake Oswego has owned four properties adjacent to its existing water treatment facility located in [the neighboring City of] West Linn since the 1990s. These properties are in the Maple Grove Plat and are encumbered by covenants and restrictions which include limiting the property to ‘family dwellings.’ Lake Oswego needs to ... remove these restrictions from the City-owned properties in order to proceed with the planned treatment plant improvements.” The restrictions can be removed if 75% of the Maple Grove property owners approve, but extended negotiations failed to convince enough of them.


While this is an unusual application of condemnation, eminent domain statutes typically contain a broad definition of the kinds of “real estate” that can be acquired.  New York’s EDPL §103(F), for example, defines “real property” to include “every estate, interest  and  right,  legal or equitable, in lands or water, and right, interest, privilege,  easement  and franchise  relating  to  the  same ....” The interesting questions in this case involve damages. The complaint states that the city valued the interests being acquired at $1000 per lot. The methodology isn’t disclosed. Can the value of the right to restrict be calculated in the abstract? Or, will the damages be based on the anticipated use by the treatment plant?