Whoa, that was fast: in a case argued on August 2, 2013, and decided on August 9, 2013 (that's one week from orals to opinion, folks), the U.S. Court of Appeals for the Sixth Circuit in Village of Maineville v. Salt Run, LLC, No. 12-4379 (Aug. 9, 2013), held that the property owner/plaintiff forfeited* its argument that a facial takings challenge to municipal impact fees is not subject to Williamson County's state procedures requirement because the argument was not raised in the District Court.
You know the drill: Williamson County tells us that a property owner cannot raise a federal takings claim in federal court unless it has first sought and been denied compensation via available state procedures. "And they agree that Salt Run has not invoked this procedure." Slip op. at 5.
In the normal course, that would be the end of the case. Having failed to ask the State for compensation and having failed to make any argument that the impact fees did not serve a public use, Salt Run’s claim is not ripe. See Williamson Cnty., 473 U.S. at 194; Tex. Gas Transmissions, LLC v. Butler Cnty. Bd. of Comm’rs, 625 F.3d 973, 976 (6th Cir. 2010); Cowell v. Palmer Twp., 263 F.3d 286, 290 (3d Cir. 2001) (holding challenge to municipal lien unripe); cf. United States v. Ritchie Special Credit Invs., Ltd., 620 F.3d 824, 835 (8th Cir. 2010) (“Legally, until a court makes a determination on the validity of the liens and security interests, there has been no improper taking.”).On appeal, Salt Run offers one potential escape route from this dead end. It claims that the request-compensation-first rule applies only to as-applied challenges, not to facial challenges, and insists that it filed a facial challenge.
Slip op. at 5.
The Sixth Circuit held that it did not need to consider this argument because Salt Run hadn't raised it below because it never hinted it was facially challenging the fee. "The company never raised the argument before the district court and indeed never claimed below it had filed a facial challenge. All Salt Run said in its amended complaint was that Hamilton's 'recording of the Affidavit, and[its]efforts to place a lien upon the Proerty ... are a deprivation of Salt Run's rights under the Fifth and Fourteenth Amendments of the United States Constitution." Slip op. at 5.
But wait you say, "notice pleading" doesn't require more than that? Well, Salt Run apparently didn't raise the argument in its summary judgment papers either, arguing only that "[j]ust what 'remedies' the Township affords to parties aggrieved by the impact fee remains a mystery." Slip op. at 6. This, the court held, "is a forfeiture, pure and simple." Id.
Plaintiff protip #1: it doesn't help your case to argue that the "remedies" in the lawsuit you instituted are "a mystery." If you can't figure it out, the court probably won't.
The court also explained the differences between an "as applied" challenge and a "facial" challenge, but we'll let you read those.
Plaintiff protip #2: do not ask for attorneys' fees for the first time on appeal. "A district court does not commit error by declining to grant attorney's fees never asked of it." Slip op. at 7.
*Final note: we're glad to see the court using the more exacting term "forfeiture" rather than the more common, but less accure "waiver."
Village of Maineville v. Salt Run, LLC, No. 12-4379 (6th Cir. Aug. 9, 2013)