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Court of Appeals Addresses Pretext By Municipalities As A Bar to Land Use Approvals?
Recently, there have been several instances in which municipalities have been challenged by property owners claiming that the municipal boards have utilized delaying tactics and other actions as a pretext to prevent development of their properties.
In its March 2024 decision in the case of Brinkmann v. Town of Southold, 96 F4th 209 (2d Cir. 2024), the Second Circuit Court of Appeals addressed claims of unlawful taking by eminent domain. In that case, the Plaintiff sought to develop a "big box" hardware store. There was public objection to the proposed development, citing concerns with, among other things, traffic generated by the proposed development. The Town therefore required different studies by the applicant to address the objections to the project raised by members of the public. After the studies were completed as required, the Town unsuccessfully attempted to purchase the property while the application was pending. Next, the Town implemented a moratorium on permits in an area of the Town that included the subject property and then extended the moratorium twice. Finally, the Town of Southold used its condemnation powers to acquire the property at issue for municipal use as a passive park.
The plaintiff brought a section 1983 challenge alleging a pretextual taking in violation of the Takings Clause of the Fifth Amendment. The district court dismissed the action. On appeal, the Second Circuit found that the:
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