August 2022

Every year at this time, it seems, we’re realizing again that as you get older, you forget birthdays. It occurred to us only over this past weekend that that this blog’s “birthday” was looming and we almost let it slip by without notice. It hardly seems like sixteen years ago that we posted here for the first time.

In law blog years, that’s quite a while.

Because doing this in a vacuum would not be worthwhile, we’d like to recognize those who send us items, who make comments, who give us feedback, who gently prod with suggestions, and who simply read and subscribe. You guys make the efforts that go into this thing all worth it. You are why we keep it going: this blog has allowed us to connect with many of you over the years all over the country and even internationally, an opportunity we’d otherwise…

Continue Reading They Say It’s Your Birthday, Well It’s Our Birthday Too, Yeah!

The facts are pretty straightforward in the U.S. Court of Appeals’ opinion in Frein v. Pennsylvania State Police, No. 21-1830 (Aug. 30, 2022):

Eric Matthew Frein is on death row for cold-blooded murder. In 2014, he ambushed two Pennsylvania State Troopers, killing one and injuring the other. For a while, he evaded capture. Police knew he had used a .308-caliber rifle. So they got a warrant to search the home that he shared with his parents and seize that type of rifle and ammunition.

When they executed the warrant, state police did not find a .308-caliber rifle. Instead, they found forty-six guns belonging to the parents: twenty-five rifles, nineteen pistols, and two shotguns. None was a .308. Even so, the officers got a second warrant and seized them all.

Slip op. at 3.

The police eventually got their man, and Frein was tried and convicted. His appeals (including discretionary…

Continue Reading CA3: Claim That Govt Is Keeping Property Seized (But Not Used) As Evidence “checks all the Fifth Amendment boxes.”

You remember our earlier posts about the issue (known as “home equity theft”). In a series of decisions mostly by state supreme courts, those courts have asked whether it is legal for a state or local government to “keep the change” after seizing and selling a tax debtor’s property. For examples, see these cases:

For more on the issues, check out the video above.

Thing is, not every court so far has seen it this way. At least two have held that there’s no takings or other constitutional problem. Nebraska said no, as did the U.S. Court of Appeals for the Eighth Circuit.

With a divergence in the lower courts you know what comes next, don’t you? That’s right, certiorari. Here are two new takings cert petitions, recently…

Continue Reading New Cert Petitions: “Keeping The Change” After Tax Foreclosure Is A Taking

You remember that case we posted recently, from the U.S. District Court for the Eastern District of Texas in which the court granted summary judgment to a property owner after the city police damaged her home in the course of the police’s apprehension of a suspect. The court rejected the Tenth Circuit’s rationale in a similar case (which concluded that these are “police power” actions, and thus never a taking).

After that ruling, the remaining issues (was the city liable under section 1983, and if so what is the just compensation owed) were tried by a jury.

On June 20, 2022, this case went to trial. Two days later, the jury returned its verdict (Dkt. #74). The jury found the City was liable under § 1983 because it acted under color of state law when it violated Baker’s constitutional rights under the Fifth Amendment of the United States Constitution by…

Continue Reading District Court Declines To Back Off Its “SWAT Takings” Verdict

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?