Court of Appeals says the City of Portland can’t avoid liability for preventing future development access.

Courter v. City of Portland, 286 Ore. App. 39 (2017)

Dick and Gayanne Courter just wanted to enjoy their tree farm on Cornell Road and Skyline Boulevard, and eventually develop it to pay for their retirement.  That dream started to crumble when the City of Portland decided in 1994 to place water tanks—with a capacity of over 2 million gallons—on part of the Courters’ land.   I served as second chair in the condemnation trial (my first trial) held in late 2003 with my old boss Kelly Clark (RIP).  We hit the City hard, and they were forced to pay the Courters what the land was worth, as well as the damages to the rest of the property, in a verdict that eventually approached $1,000,000 when attorney fees were added.    Here is a good summary of that fight and the background on the case from a 2004 Portland Tribune article.

Unfortunately, even though we won at trial, and the City had to pay, it also got to use the land for its water tank (just one was ultimately built).  Part of the value left in the Courters’ land was the ability to put in a subdivision o the remainder, accessed by the same road the City uses to access its water tank.  Of course, a water tank isn’t worth much without pipes to connect it to the water system, so the City had to use the access road to lay the piping to the tank.  At the 2003 trial, we showed that for the rest of the property to be developed, the City would have to bury its pipes 14 feet in the ground on that access road.  So when the City built the tanks and connected the pipes, how deep did they bury them?

Four feet.

That’s right, there are parts of piping that will stand up 10 feet from the middle of the road if the Courters try to develop (or the moving of the pipes will cost a lot of money).   So, the Courters sued the City to either get the money for moving the pipes or receive the value of the lost development.  The City figured that since there was no application for development, the Courters had not been harmed yet.  The trial court agreed, so Roggendorf Law appealed for the Courters to reverse the dismissal of their lawsuit.  The Court of Appeals agreed with the Courters that the City has to answer for why they didn’t follow their promises made back in 2003 under oath.

Really, the City’s theory got it entirely backwards.  By not burying their pipes deep enough, the City exceeded the scope of their easement and so it owes the Courters money for preventing valuable and needed housing, or alternatively the City can just move its pipes and then there won’t be a problem at all.  After all, that’s what the City told the court and jury they would do in 2003 is bury  the pipes deep enough that they would never be an issue.  That concession saved the City over a million dollars in compensation during the condemnation trial.  The City of Portland needs to keep its promises, or pay its fair share.