Friday, March 23, 2001

Neighbors challenge water tower


Deed may restrict Mason

By Kevin Aldridge
The Cincinnati Enquirer

        DEERFIELD TWP. — Plans to construct a 175-foot water tower could be in jeopardy because of a clause in a deed to the 6-acre parcel where it is to be built.

        Jon Niemeyer, a resident of the Hampton Village subdivision, said a clause in Ma son's property deed known as a restrictive covenant prohibits the use of the land for anything but homes or farming.

        Nine other lots adjacent to the city's property have the same restrictions, he said.

        “If Mason builds the tower at this site, (neighboring) residents will be deprived of a significant right that virtually all of us who live in a neighborhood enjoy ... the right to ensure that the development remains residential in nature,” said Mr. Niemeyer, who lives about 200 yards from the proposed site.

        “Unfortunately, Mason has apparently decided to proceed with the tower in the face of these significant private property rights,” he said.

        A restrictive covenant is a clause in a deed that limits use of real estate.

        Mason officials said they learned about the covenants after having the title to the property examined before buying it in 1999.

        Mason Law Director Ken Schneider said that while the covenants would be binding for a private individual, he thinks the deed restrictions do not apply to public utilities with the power of eminent domain.

        “You cannot restrict a government body from providing a necessary service to its residents,” Mr. Schneider said. “Water is definitely a necessary service.”

        But neighbors said they think the covenants are enforceable and have retained Cincinnati attorney Jack Greiner to research the issue.

        Mr. Greiner said the group could take legal action against the city as soon as today.

        A hearing has been scheduled for 3 p.m. today in Warren County Common Pleas Court before Judge P. Daniel Fedders on Deerfield Town ship's request for a temporary restraining order against Mason to stop construction of the tower.

        Mr. Greiner said he thinks the Ohio Revised Code might allow for neighbors to receive compensation for any impact the water tower would have on their property.

        “Mason would essentially have to argue against the rights of virtually all Ohio homeowners, that deed restrictions have no validity in the face of a city-owned structure,” Mr. Niemeyer said.

        He said a court decision in Mason's favor on the water tower would set a bad precedent.

        “No resident in a subdivision in this state would be able to sleep well at night with the prospect of its local government or a neighboring one purchasing his or her neighbor's house and putting a 175-foot water tower, city hall, county jail or city dump next door,” Mr. Niemeyer said.

        Mason officials said they remain committed to minimizing the impact of the tower through landscaping and other adjustments. However, moving the tower is not an option, city officials said.

       



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