August 2022

Check out the U.S. Court of Appeals for the Second Circuit’s opinion in Village Green of Sayville, LLC v. Town of Islip, No. 19-3353 (Aug. 5, 2022), a case in which the court held the Town reached a final decision denying Village Green’s request to develop a 64-unit apartment complex on Long Island.

Final decision ripeness under the surviving part of Williamson County, you say? So this is a takings case, right? No, not quite. The claims asserted by the developer  included a takings claim (although it seems to have played a more minor role) and the claims were mostly about the Town allegedly discriminating against affordable housing and the people who build and live in affordable housing. See slip op. at 11.

But as you know, many courts — including the Second Circuit — apply Williamson County’s final decision ripeness requirements to anything vaguely land usey.

Continue Reading CA2: Land Use Challenge (Not Takings) Is Ripe – Govt Gave Its Final “No”

Here’s the latest in a case we’ve been following. The U.S. Court of Appeals recently heard oral arguments in a case where a private Natural Gas Act condemnor (the Sabal Trail pipeline) exercised the delegated federal power of eminent domain to take the property of a Florida owner.

As we reported here, the issue is whether federal or state law applies in these cases. The big reason why the question of whose law applies is that under the Fifth Amendment, “just compensation” does not include attorneys’ and other fees, while under the Florida Constitution’s “full compensation” provision (which we noted here), a property owner may recover fees and costs. The District Court held that Florida law, not federal, applied, and Sabal Trail appealed to the Eleventh Circuit.

The arguments are worth listening to. Is this a question of “choice of law?” Or does it go…

Continue Reading CA11 Oral Arguments In Pipeline Taking: If Florida Law Says The Owner Gets Compensation Plus A Car, Does A Federal Court Have To Recognize That?

Today’s a busy day, so we can’t lay out the details of the Texas Court of Appeals’ opinion in City of Dallas v. Trinity East Energy, LLC, No. 05-20-00550-DV (Aug. 1, 2022). But we want to post up the decision and urge you to read it because it is a rare bird: not only did the property owner win a takings claim at trial – the verdict survived appellate review.

The takings claims (Lucas and Penn Central) were based on the city’s denial of a Special Use Permit. The city argued that its denial of the SUP for the desired drilling locations did not cut off completely the owner’s ability to access the minerals, since there were other ways to get at them. Here’s what happened at trial:

The trial court found that other than the drill sites proposed in Trinity’s three SUP requests, “Trinity did not…

Continue Reading Tex App: Property Owner’s Penn Central Verdict For Drilling Permit Denial Is OK By Us

Even though the Oklahoma Supreme Court’s decision in Snow v. Town of Calumet, No. 119,758 (June 21, 2022) is short, we think it is worth reading because is clarifies who can bring an inverse claim, and what exactly do these claims allege.

In 1978, the Snows’ predecessor-in-title granted the Town an easement to maintain sewer lines. The easement was temporary and expired 6 months after the Snows purchased the property in 2010. But after the temporary easement expired, the Town didn’t cease its use of the property. Flash forward 7 more years, and the Town asked the Snows to grant it perpetual easements for its continued use. The Snows asked for compensation, but the Town said no.

Next up, the Snows’ trespass and inverse lawsuit in state court, with the Town counterclaiming with a quiet title claim asserting it had acquired a perpetual easement by prescription. Cross motions for…

Continue Reading Oklahoma: The “Taking” Occurs When Govt Changes Its Use Of A Previously-Granted Easement