Next month, the Lake Oswego government’s rules preventing access to Oswego Lake from city property will be analyzed by the Clackamas County Circuit Court to determine whether they are reasonable. However, another layer of restrictions may be a key component in the trial — if a judge allows them to be addressed.
Todd Prager and Mark Kramer submitted a petition contesting the city’s rules preventing lake access in 2012. The case was heard at the Oregon Court of Appeals and the Oregon Supreme Court before being remanded back to circuit court. A circuit court judge ruled that the body of water was navigable at the time of statehood — therefore potentially opening it up to public access — in the first phase of the trial. The second phase zeroes in on the city’s rules preventing access to the lake. Over the last few weeks, the plaintiffs and defendants have each filed motions for evidence or arguments to be omitted from the case as well as rebuttals to those motions.
This week, the city filed a court document arguing that deed restrictions limiting lake access should be part of the record while lawyers for the plaintiffs insist that they should not be.
The city’s filing asserts that the former owners of property surrounding the lake, Oregon Iron and Steel, had recorded restrictions on access and use of the lakeside property and that those restrictions were maintained when the Lake Corporation took over ownership. In turn, the city argued that it would open itself up to legal liability if it were to allow access to the lake from Millennium Plaza Park, Sundeleaf Plaza and the Headlee Walkway.
“The advisory jury and the Court should consider information regarding the City’s potential liability in allowing, encouraging, or facilitating public access to the lake,” the court filing reads. “If the City’s upland property is subject to alleged restrictions on public access to the lake, it would be patently unreasonable for the City and this Court to refuse to consider it. Stated differently, the advisory jury and this Court should be permitted to determine whether it is reasonable to allow visual access to the Lake—in accordance with the alleged deed restrictions—through building lakefront parks in light of the potential liability risks that providing physical access invites.”
The city also implied that the plaintiffs would effectively be acting as parks supervisors if the court accepts their push to determine the lake rules are not reasonable.
“Clearly, Plaintiffs disagree with the City’s policy decisions regarding the development of the waterfront parks to provide visual-only access, and its rules prohibiting access to Lakewood Bay from these properties. But that policy disagreement does not make the City’s rules unreasonable, and this Court should decline to allow Plaintiffs to circumvent the proper legislative process by invoking the injunctive powers of this Court,” the court filing reads.
The plaintiffs had hoped for such deed restrictions to be barred from evidence in the trial, asserting that they aren’t viable due to Public Trust Doctrine. Further, they noted the incongruity of the Lake Corporation’s contention that unenforceable racist language within the deeds should be barred from mention in the trial while other restrictive language should be allowed.
“If the covenants are important to the jury’s review of reasonableness, then the jury should consider the whole document, not just the language which the Corporation deems to be favorable to its position,” their court filing reads.
They also object to the city’s assertion that the covenants show that the local government’s position barring lake access is reasonable.
“Defendants seek to interpose a ‘they-might-sue-us’ defense to support the reasonableness of their prohibition on public access. But that is not tied to preservation of the public trust, was not a basis for the ordinance in the first instance, and is not a valid defense for the jury to consider. The covenants’ meaning and legal effect are questions of legal interpretation, which should be decided by the Court,” the plaintiff’s filing reads.
The Review reached out to the Lake Corporation about the contents of such deed restrictions but did not hear back.
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