2022

Here’s the latest in a case and issue we’ve been following. Check out this recently-filed cert petition, involving the federal takeover of Fannie Mae and Freddie Mac in the mortgage crisis in the late ‘aughts. Which allowed them to keep going, but is alleged to have iced out their private shareholders.

The Court of Federal Claims and the Federal Circuit rejected a takings claim by the private shareholders, concluding that they don’t possess standing. Their claims are derivative, not direct, because Freddie and Fannie should be the plaintiffs.

Here’s the Question Presented:

Fannie Mae and Freddie Mac are “for-profit corporations owned by private shareholders” and “dominate the secondary mortgage market.” Collins v. Yellen, 141 S. Ct. 1761, 1770, 1785 (2021). In 2008, Congress passed a statute that led to the Federal Housing Finance Agency’s becoming the companies’ conservator and the U.S. Department of Treasury’s becoming a shareholder…

Continue Reading New Takings Cert Petition: Do Private Shareholders Have Standing To Assert Takings Claim After Govt Takes Over The Company?

Charlie_loser

If you understand the headline of this post, congratulations: you are officially so deep in the weeds that you deserve both a Federal Courts and a Takings merit badge. 

For those of you not in so deep, here’s the short story behind the U.S. Court of Appeals for the First Circuit’s short opinion in Efreom v. McKee, No. 21-1382 (Aug. 18, 2022).

This is one of those pension cases, where the state (here, Rhode Island) shored up its tottering pension system with a new statute that “altered in various ways the retirement benefits to which public employees were entitled, including by reducing the amount and availability of cost-of-living adjustment (“COLA”) payments to retirees.” Slip op. at 4.

As the court noted, “[l]itigation promptly ensured in state court.” Slip op. at 5. Takings claims were included in the lineup. All of the cases were consolidated for trial. Most of the…

Continue Reading CA1: Rooker-Feldman Defeats Federal Court Takings Claim By “State Court Losers”

In Hignell-Stark v. City of New Orleans, No. 21-30643 (Aug. 22, 2022), the U.S. Court of Appeals for the Fifth Circuit, like a lot of other courts, reached an unsurprising conclusion: New Orleans’ restrictions on short-term rental of residential properties isn’t a taking. But there are parts of the opinion that are definitely worth your time to check out. Read on.

The city had gone back-and-forth on whether renting for less than thirty days was a good thing. Originally barring STRs, then in 2016 offering city licenses, and then when the inevitable flood of STRs resulted, retrenching and substantially revising the licensing program:

One year into the initial regime, the City commissioned a study from its Planning Commission to reevaluate the STR policies. The study found that the rapid proliferation of STRs had brought nuisances to the City. Specifically, it discovered that STRs in residential neighborhoods had lowered…

Continue Reading CA5: “But there’s a big difference between saying that something is property for purposes of procedural due process and saying that it is property for purposes of the Takings Clause”

We recommend you review the North Carolina Supreme Court’s opinion in Anderson Creek Partners, L.P. v. County of Harnett, No. 63PA21-1 (Aug. 19, 2022). It’s long (70 page majority, plus 19 pages of concurring and dissenting opinions), but worth your time because the majority concludes that legislatively-imposed fees, applicable to all, are “exactions” that are subject to the nexus/rough proportionality requirements of Nollan/Dolan/Koontz.

The county adopted a requirement that residential property developers pay a per-lot, one-time water and sewer capacity use fee as a condition of the county accepting applications for a water or sewer permit. The details:

Section 28(h) of the ordinance provides for the collection of “capacity use” fees for the purpose of “partially recover[ing] directly from new customers the costs of capacity of the utility system to serve them.” More specifically, the ordinance provides that, for each new residential connection to…

Continue Reading NC: Generally-Applicable Impact Fee Is Subject To Nollan/Dolan/Koontz

BK 2022

There’s still space for you to join us — preferably in-person, but remotely if that is not possible for you — at the 19th Annual Brigham-Kanner Property Rights Conference, September 29-30, 2022, at the William and Mary Law School in Williamsburg.

The American Law Institute was kind enough to post a notice about the Conference and the ALI members who are on the speaking faculty here.

Registration for the Conference is ongoing, and you can sign up here. Here is the full agenda. (We’ll be speaking on Panel #2, “Reshaping the Framework Protecting Property Under the Roberts Court.”

In our opinion, the Conference is the best of its kind, and brings together legal scholars and the practicing bar to talk dirt law. So please come join us.Continue Reading Registration Underway – 19th Annual Brigham-Kanner Property Rights Conference (Sep 29-30, 2022)

You’ll definitely want to check out the U.S. Court of Appeals for the Third Circuit’s opinion in Makrilov v. City of Jersey City, No. 21-1786 (Aug. 16, 2022).

Not because it reaches any earth-shattering conclusions — the opinion unsurprisingly concluded that the city’s restricting (but not eliminating) short-term rentals (less than thirty days) was not a taking — but primarily because of the interesting concurring opinion.

So here’s the story. At one time, the city thought that renting residential property for less than thirty days was a good thing, believing that short-term renting “incentivize[d] investment and development in Jersey City.” Slip op. at 3. The city even adopted an ordinance affirmatively legalizing STRs as permitted accessory uses in residential zones. A property owner didn’t even need to obtain a permit, as long as the operation was small-scale (the owner did not have more than five units it rented).

But…

Continue Reading Penn Central May Be A “Fuzzy” Test, But What Is A Court Doing Weighing The Factors?

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