Empathy List Archives

JW

Joe Weaver

Fri, Feb 28, 2020 7:41 PM

My client is a small town operating under the Town Board Of Trustees Form Of Government. The Board of Trustees consists of 5 members. The Town is in the process of hiring a new Chief of Police and will be interviewing candidates for the position. The plan was that two trustees would be selected to conduct the interviews and make their recommendations to the full Board. Now, additional members want to be involved in the interview process. Because of the number of applicants and the time that will be involved, the initial interviews will be conducted outside of a regular meeting setting. The Trustees now are considering that two trustees will interview the applicants in one room in Town Hall and two different trustees will interview the applicants in a separate room. Thereafter the full Board will consider the recommendations and may conduct follow up interviews. Would such a procedure violate the Open Meeting Act as long as there are no discussions among board members outside of the two member interviews?

Another issue involves condemnation/inverse condemnation. For some reason, many years before I was Town Attorney, the Town requested and was granted term easements over private property to install sewer lines. The easements were recorded in the office of the County Clerk. The easements expired in 2010 and the sewer lines are still in place and in use. The landowner in question purchased his property just prior to expiration of the easements in 2010. The sewer lines were installed long before the current owner purchased the property. The Town was not aware the easements had expired until the Town's engineering firm discovered same in 2017. As a result the Engineering Firm created legal descriptions for the easements that had expired and I prepared easements. I met with one landowner who executed the easement and I gave the rest of the easements to Town staff to obtain execution and to record the easements. The easements are along boundary lines of the properties in question.

I was never informed the subject landowner refused to execute the new easements without compensation until I heard from the landowner's attorney. The Board was reluctant to pay the landowner for the easements when an adjacent owner granted an easement without compensation. Ultimately landowner filed litigation alleging trespass and inverse condemnation. Generally speaking, a cause of action for trespass is not available to the landowner under these circumstance, but the landowner is limited to a cause of action for inverse condemnation. Also, generally speaking, a cause of action for inverse condemnation is only available to the landowner at the time of the taking, except in certain specific fact situations. I have not found any cases involving my fact situation. I assume that is the case because term utility easements are so rare. It is not in dispute that the sewer lines were installed on the subject property with permission of the prior landowner and the easements granted by the prior owners expired after the current owner purchased the property. For the purpose of inverse condemnation, did a taking occur concerning the current landowner when the easements on his property expired and the sewer lines remained in use? Your input will be appreciated.

Thank you.

Joe Weaver
Attorney At Law
405.262.4040
405.262.4058 fax
joe@basslaw.net mailto:agbass@basslaw.net

[cid:image001.png@01D5EE36.CBC752A0]
www.basslaw.net
104 N. Rock Island Ave.
P.O. Box 157
El Reno, OK 73036

NOTICE:
The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system.

Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

My client is a small town operating under the Town Board Of Trustees Form Of Government. The Board of Trustees consists of 5 members. The Town is in the process of hiring a new Chief of Police and will be interviewing candidates for the position. The plan was that two trustees would be selected to conduct the interviews and make their recommendations to the full Board. Now, additional members want to be involved in the interview process. Because of the number of applicants and the time that will be involved, the initial interviews will be conducted outside of a regular meeting setting. The Trustees now are considering that two trustees will interview the applicants in one room in Town Hall and two different trustees will interview the applicants in a separate room. Thereafter the full Board will consider the recommendations and may conduct follow up interviews. Would such a procedure violate the Open Meeting Act as long as there are no discussions among board members outside of the two member interviews? Another issue involves condemnation/inverse condemnation. For some reason, many years before I was Town Attorney, the Town requested and was granted term easements over private property to install sewer lines. The easements were recorded in the office of the County Clerk. The easements expired in 2010 and the sewer lines are still in place and in use. The landowner in question purchased his property just prior to expiration of the easements in 2010. The sewer lines were installed long before the current owner purchased the property. The Town was not aware the easements had expired until the Town's engineering firm discovered same in 2017. As a result the Engineering Firm created legal descriptions for the easements that had expired and I prepared easements. I met with one landowner who executed the easement and I gave the rest of the easements to Town staff to obtain execution and to record the easements. The easements are along boundary lines of the properties in question. I was never informed the subject landowner refused to execute the new easements without compensation until I heard from the landowner's attorney. The Board was reluctant to pay the landowner for the easements when an adjacent owner granted an easement without compensation. Ultimately landowner filed litigation alleging trespass and inverse condemnation. Generally speaking, a cause of action for trespass is not available to the landowner under these circumstance, but the landowner is limited to a cause of action for inverse condemnation. Also, generally speaking, a cause of action for inverse condemnation is only available to the landowner at the time of the taking, except in certain specific fact situations. I have not found any cases involving my fact situation. I assume that is the case because term utility easements are so rare. It is not in dispute that the sewer lines were installed on the subject property with permission of the prior landowner and the easements granted by the prior owners expired after the current owner purchased the property. For the purpose of inverse condemnation, did a taking occur concerning the current landowner when the easements on his property expired and the sewer lines remained in use? Your input will be appreciated. Thank you. -------------------------------- Joe Weaver Attorney At Law 405.262.4040 405.262.4058 fax joe@basslaw.net<mailto:agbass@basslaw.net> [cid:image001.png@01D5EE36.CBC752A0] www.basslaw.net 104 N. Rock Island Ave. P.O. Box 157 El Reno, OK 73036 NOTICE: The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system. Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

ML

Matt Love

Fri, Feb 28, 2020 10:37 PM

Joe,

3 cases to look at:

Wilson v. City of Tecumseh, 2008 OK CIV APP 84, 194 P.3d 140: 5 member board, 2 meet, one goes to meet with 3rd and back and forth. The OMA violation wasn’t because of those games but, instead, because of a deceptively vague agenda item on what they were talking out. Logically, it’s not a meeting if a majority is not present.

State ex rel Trimble v City of Moore, 1991 OK 97, 818 P.2d 889. Any OMA claim deemed moot if the challenged action was approved at a later properly held meeting with sufficient agenda language.

IAFF, Local 2479 v. Thorpe, 1981 OK 95, 632 P.2d 408. Union negotiations not subject to OMA unless the city team has final authority to execute the CBA. Where a sub group works on an item that the council will consider at a proper meeting under the OMA, the subgroup meeting isn’t subject to the OMA.

Argument would be that a majority is never together and the final decision will be at a posted meeting, ergo no violation. In the context of hiring, the interviews could be done in closed executive session if properly posted so there’s an argument to be made that, in this particular instance, it’s not a discussion that the public has an unfettered right to see.

That said, I’ll say this - I don’t like it from an employment standpoint. Having 2 members screen applicants and do some initial interviews is one thing, but having 2 groups of 2 - why not just have the full council do it?

Sent from Matt’s iPhone

On Feb 28, 2020, at 1:42 PM, Joe Weaver jweaver@basslaw.net wrote:

My client is a small town operating under the Town Board Of Trustees Form Of Government. The Board of Trustees consists of 5 members. The Town is in the process of hiring a new Chief of Police and will be interviewing candidates for the position. The plan was that two trustees would be selected to conduct the interviews and make their recommendations to the full Board. Now, additional members want to be involved in the interview process. Because of the number of applicants and the time that will be involved, the initial interviews will be conducted outside of a regular meeting setting. The Trustees now are considering that two trustees will interview the applicants in one room in Town Hall and two different trustees will interview the applicants in a separate room. Thereafter the full Board will consider the recommendations and may conduct follow up interviews. Would such a procedure violate the Open Meeting Act as long as there are no discussions among board members outside of the two member interviews?

Another issue involves condemnation/inverse condemnation. For some reason, many years before I was Town Attorney, the Town requested and was granted term easements over private property to install sewer lines. The easements were recorded in the office of the County Clerk. The easements expired in 2010 and the sewer lines are still in place and in use. The landowner in question purchased his property just prior to expiration of the easements in 2010. The sewer lines were installed long before the current owner purchased the property. The Town was not aware the easements had expired until the Town’s engineering firm discovered same in 2017. As a result the Engineering Firm created legal descriptions for the easements that had expired and I prepared easements. I met with one landowner who executed the easement and I gave the rest of the easements to Town staff to obtain execution and to record the easements. The easements are along boundary lines of the properties in question.

I was never informed the subject landowner refused to execute the new easements without compensation until I heard from the landowner’s attorney. The Board was reluctant to pay the landowner for the easements when an adjacent owner granted an easement without compensation. Ultimately landowner filed litigation alleging trespass and inverse condemnation. Generally speaking, a cause of action for trespass is not available to the landowner under these circumstance, but the landowner is limited to a cause of action for inverse condemnation. Also, generally speaking, a cause of action for inverse condemnation is only available to the landowner at the time of the taking, except in certain specific fact situations. I have not found any cases involving my fact situation. I assume that is the case because term utility easements are so rare. It is not in dispute that the sewer lines were installed on the subject property with permission of the prior landowner and the easements granted by the prior owners expired after the current owner purchased the property. For the purpose of inverse condemnation, did a taking occur concerning the current landowner when the easements on his property expired and the sewer lines remained in use? Your input will be appreciated.

Thank you.

Joe Weaver
Attorney At Law
405.262.4040
405.262.4058 fax
joe@basslaw.net

<image001.png>
www.basslaw.net
104 N. Rock Island Ave.
P.O. Box 157
El Reno, OK 73036

NOTICE:
The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system.

Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. --
Oama mailing list
Oama@lists.imla.org
http://lists.imla.org/mailman/listinfo/oama_lists.imla.org

Joe, 3 cases to look at: Wilson v. City of Tecumseh, 2008 OK CIV APP 84, 194 P.3d 140: 5 member board, 2 meet, one goes to meet with 3rd and back and forth. The OMA violation wasn’t because of those games but, instead, because of a deceptively vague agenda item on what they were talking out. Logically, it’s not a meeting if a majority is not present. State ex rel Trimble v City of Moore, 1991 OK 97, 818 P.2d 889. Any OMA claim deemed moot if the challenged action was approved at a later properly held meeting with sufficient agenda language. IAFF, Local 2479 v. Thorpe, 1981 OK 95, 632 P.2d 408. Union negotiations not subject to OMA unless the city team has final authority to execute the CBA. Where a sub group works on an item that the council will consider at a proper meeting under the OMA, the subgroup meeting isn’t subject to the OMA. Argument would be that a majority is never together and the final decision will be at a posted meeting, ergo no violation. In the context of hiring, the interviews could be done in closed executive session if properly posted so there’s an argument to be made that, in this particular instance, it’s not a discussion that the public has an unfettered right to see. That said, I’ll say this - I don’t like it from an employment standpoint. Having 2 members screen applicants and do some initial interviews is one thing, but having 2 groups of 2 - why not just have the full council do it? Sent from Matt’s iPhone > On Feb 28, 2020, at 1:42 PM, Joe Weaver <jweaver@basslaw.net> wrote: > > > My client is a small town operating under the Town Board Of Trustees Form Of Government. The Board of Trustees consists of 5 members. The Town is in the process of hiring a new Chief of Police and will be interviewing candidates for the position. The plan was that two trustees would be selected to conduct the interviews and make their recommendations to the full Board. Now, additional members want to be involved in the interview process. Because of the number of applicants and the time that will be involved, the initial interviews will be conducted outside of a regular meeting setting. The Trustees now are considering that two trustees will interview the applicants in one room in Town Hall and two different trustees will interview the applicants in a separate room. Thereafter the full Board will consider the recommendations and may conduct follow up interviews. Would such a procedure violate the Open Meeting Act as long as there are no discussions among board members outside of the two member interviews? > > Another issue involves condemnation/inverse condemnation. For some reason, many years before I was Town Attorney, the Town requested and was granted term easements over private property to install sewer lines. The easements were recorded in the office of the County Clerk. The easements expired in 2010 and the sewer lines are still in place and in use. The landowner in question purchased his property just prior to expiration of the easements in 2010. The sewer lines were installed long before the current owner purchased the property. The Town was not aware the easements had expired until the Town’s engineering firm discovered same in 2017. As a result the Engineering Firm created legal descriptions for the easements that had expired and I prepared easements. I met with one landowner who executed the easement and I gave the rest of the easements to Town staff to obtain execution and to record the easements. The easements are along boundary lines of the properties in question. > > I was never informed the subject landowner refused to execute the new easements without compensation until I heard from the landowner’s attorney. The Board was reluctant to pay the landowner for the easements when an adjacent owner granted an easement without compensation. Ultimately landowner filed litigation alleging trespass and inverse condemnation. Generally speaking, a cause of action for trespass is not available to the landowner under these circumstance, but the landowner is limited to a cause of action for inverse condemnation. Also, generally speaking, a cause of action for inverse condemnation is only available to the landowner at the time of the taking, except in certain specific fact situations. I have not found any cases involving my fact situation. I assume that is the case because term utility easements are so rare. It is not in dispute that the sewer lines were installed on the subject property with permission of the prior landowner and the easements granted by the prior owners expired after the current owner purchased the property. For the purpose of inverse condemnation, did a taking occur concerning the current landowner when the easements on his property expired and the sewer lines remained in use? Your input will be appreciated. > > Thank you. > > -------------------------------- > Joe Weaver > Attorney At Law > 405.262.4040 > 405.262.4058 fax > joe@basslaw.net > > <image001.png> > www.basslaw.net > 104 N. Rock Island Ave. > P.O. Box 157 > El Reno, OK 73036 > > NOTICE: > The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system. > > Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. -- > Oama mailing list > Oama@lists.imla.org > http://lists.imla.org/mailman/listinfo/oama_lists.imla.org

ET

Ewing, Tammy

Mon, Mar 2, 2020 8:37 PM

I'm thinking it was a taking. (Why would "they" do a term easement for a sewer line? - rhetorical question). Our office was recently granted summary judgment on the argument that the Governmental Tort Claims Act, as recently amended, applies to require notice prior to filing an inverse condemnation case. There are some problems with that argument (mainly the liability cap provisions), but, if you want to explore it, let me know and I'll send you our motion.

From: Oama oama-bounces@lists.imla.org On Behalf Of Joe Weaver
Sent: Friday, February 28, 2020 1:42 PM
To: oama@lists.imla.org
Subject: [Oama] Open meetings and Condemnation/Inverse Condemnation

CAUTION! This email originated from outside of the City of Broken Arrow network. Do not click links or open attachments unless you recognize the sender and know the content is safe. code rgiad

My client is a small town operating under the Town Board Of Trustees Form Of Government. The Board of Trustees consists of 5 members. The Town is in the process of hiring a new Chief of Police and will be interviewing candidates for the position. The plan was that two trustees would be selected to conduct the interviews and make their recommendations to the full Board. Now, additional members want to be involved in the interview process. Because of the number of applicants and the time that will be involved, the initial interviews will be conducted outside of a regular meeting setting. The Trustees now are considering that two trustees will interview the applicants in one room in Town Hall and two different trustees will interview the applicants in a separate room. Thereafter the full Board will consider the recommendations and may conduct follow up interviews. Would such a procedure violate the Open Meeting Act as long as there are no discussions among board members outside of the two member interviews?

Another issue involves condemnation/inverse condemnation. For some reason, many years before I was Town Attorney, the Town requested and was granted term easements over private property to install sewer lines. The easements were recorded in the office of the County Clerk. The easements expired in 2010 and the sewer lines are still in place and in use. The landowner in question purchased his property just prior to expiration of the easements in 2010. The sewer lines were installed long before the current owner purchased the property. The Town was not aware the easements had expired until the Town's engineering firm discovered same in 2017. As a result the Engineering Firm created legal descriptions for the easements that had expired and I prepared easements. I met with one landowner who executed the easement and I gave the rest of the easements to Town staff to obtain execution and to record the easements. The easements are along boundary lines of the properties in question.

I was never informed the subject landowner refused to execute the new easements without compensation until I heard from the landowner's attorney. The Board was reluctant to pay the landowner for the easements when an adjacent owner granted an easement without compensation. Ultimately landowner filed litigation alleging trespass and inverse condemnation. Generally speaking, a cause of action for trespass is not available to the landowner under these circumstance, but the landowner is limited to a cause of action for inverse condemnation. Also, generally speaking, a cause of action for inverse condemnation is only available to the landowner at the time of the taking, except in certain specific fact situations. I have not found any cases involving my fact situation. I assume that is the case because term utility easements are so rare. It is not in dispute that the sewer lines were installed on the subject property with permission of the prior landowner and the easements granted by the prior owners expired after the current owner purchased the property. For the purpose of inverse condemnation, did a taking occur concerning the current landowner when the easements on his property expired and the sewer lines remained in use? Your input will be appreciated.

Thank you.

Joe Weaver
Attorney At Law
405.262.4040
405.262.4058 fax
joe@basslaw.net mailto:agbass@basslaw.net

[cid:image001.png@01D5F09F.A99F18A0]
www.basslaw.net
104 N. Rock Island Ave.
P.O. Box 157
El Reno, OK 73036

NOTICE:
The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system.

Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

I'm thinking it was a taking. (Why would "they" do a term easement for a sewer line? - rhetorical question). Our office was recently granted summary judgment on the argument that the Governmental Tort Claims Act, as recently amended, applies to require notice prior to filing an inverse condemnation case. There are some problems with that argument (mainly the liability cap provisions), but, if you want to explore it, let me know and I'll send you our motion. From: Oama <oama-bounces@lists.imla.org> On Behalf Of Joe Weaver Sent: Friday, February 28, 2020 1:42 PM To: oama@lists.imla.org Subject: [Oama] Open meetings and Condemnation/Inverse Condemnation CAUTION! This email originated from outside of the City of Broken Arrow network. Do not click links or open attachments unless you recognize the sender and know the content is safe. code rgiad My client is a small town operating under the Town Board Of Trustees Form Of Government. The Board of Trustees consists of 5 members. The Town is in the process of hiring a new Chief of Police and will be interviewing candidates for the position. The plan was that two trustees would be selected to conduct the interviews and make their recommendations to the full Board. Now, additional members want to be involved in the interview process. Because of the number of applicants and the time that will be involved, the initial interviews will be conducted outside of a regular meeting setting. The Trustees now are considering that two trustees will interview the applicants in one room in Town Hall and two different trustees will interview the applicants in a separate room. Thereafter the full Board will consider the recommendations and may conduct follow up interviews. Would such a procedure violate the Open Meeting Act as long as there are no discussions among board members outside of the two member interviews? Another issue involves condemnation/inverse condemnation. For some reason, many years before I was Town Attorney, the Town requested and was granted term easements over private property to install sewer lines. The easements were recorded in the office of the County Clerk. The easements expired in 2010 and the sewer lines are still in place and in use. The landowner in question purchased his property just prior to expiration of the easements in 2010. The sewer lines were installed long before the current owner purchased the property. The Town was not aware the easements had expired until the Town's engineering firm discovered same in 2017. As a result the Engineering Firm created legal descriptions for the easements that had expired and I prepared easements. I met with one landowner who executed the easement and I gave the rest of the easements to Town staff to obtain execution and to record the easements. The easements are along boundary lines of the properties in question. I was never informed the subject landowner refused to execute the new easements without compensation until I heard from the landowner's attorney. The Board was reluctant to pay the landowner for the easements when an adjacent owner granted an easement without compensation. Ultimately landowner filed litigation alleging trespass and inverse condemnation. Generally speaking, a cause of action for trespass is not available to the landowner under these circumstance, but the landowner is limited to a cause of action for inverse condemnation. Also, generally speaking, a cause of action for inverse condemnation is only available to the landowner at the time of the taking, except in certain specific fact situations. I have not found any cases involving my fact situation. I assume that is the case because term utility easements are so rare. It is not in dispute that the sewer lines were installed on the subject property with permission of the prior landowner and the easements granted by the prior owners expired after the current owner purchased the property. For the purpose of inverse condemnation, did a taking occur concerning the current landowner when the easements on his property expired and the sewer lines remained in use? Your input will be appreciated. Thank you. -------------------------------- Joe Weaver Attorney At Law 405.262.4040 405.262.4058 fax joe@basslaw.net<mailto:agbass@basslaw.net> [cid:image001.png@01D5F09F.A99F18A0] www.basslaw.net 104 N. Rock Island Ave. P.O. Box 157 El Reno, OK 73036 NOTICE: The information contained in this transmission is or may be protected by the attorney-client and/or the attorney work product privilege and is confidential. It is intended only for the use of the individual or entity identified above. If the reader of this message is not the intended recipient you are hereby notified that any dissemination or distribution of the accompanying communication is prohibited. No applicable privilege is waived by the party sending this communication. If you have received this communication in error, please notify us immediately by reply and delete the original message from your system. Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.