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Tabb Lakes, Inc. v. United States

Citation: 23 ELR 20104
No. No. 90-3906L, 26 Cl. Ct. 1334/(Cl. Ct., 10/02/1992)

The court holds that a U.S. Army Corps of Engineers' (Corps') cease and desist order requiring a land developer to suspend construction on wetlands' portions of a residential development for three years did not constitute a taking of property without just compensation in violation of the Fifth Amendment. The court holds that neither a total deprivation of economic use, nor a substantial or severe diminution in value, which might be compensable, occurred during the three-year period. The landowner enjoyed substantial income and substantial profits from its ongoing development activities that occurred even during the period of the cease and desist order. Also, it was not denied access to its property. Although the landowner might be entitled to relief if it demonstrated extraordinary delay in the permitting process, coupled with a diminution in value, nothing in the record suggests that the government action led to such an extraordinary delay. The record also fails to show that the Corps acted in bad faith. Finally, the court denies the landowner's motion to amend its complaint to reflect a cause of action for a temporary taking for the first two years of the Corps' cease and desist order, because the record does not reveal that such a taking could have occurred.

[Related opinions are published at 19 ELR 20672 and 20 ELR 20008.]

Counsel for Plaintiff
Richard R. Nageotte, James S. Krein
Nageotte & Krein
385 Garrisonville Rd., Ste. 201, Stafford VA 22554
(703) 497-0000

Counsel for Defendant
Dorothy R. Burakreis
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000