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Lost Tree Village Corp. v. United States

ELR Citation: 43 ELR 20012
Nos. 2012-5008, (Fed. Cir. , 01/10/2013)

The Federal Circuit reversed and remanded a lower court decision dismissing a developer's Fifth Amendment takings claim against the U.S. Army Corps of Engineers for denying its application for a CWA §404 wetlands fill permit. The property is located on a barrier island of Florida, much of which is owned and has already been developed by the developer. The Corps denied the application, stating that less environmentally damaging alternatives were available and that the developer "has had very reasonable use of its land" on the island. The developer then filed its takings claim. The government argued that the entire island community is the relevant parcel for the takings analysis, which the lower court properly rejected. Instead, the lower court held that the developer's parcel as a whole included the proposed fill area, neighboring upland property, and scattered wetlands in the vicinity. Based on this, the lower court determined that the permit denial diminished the value of the developer's property by approximately 58.4%, which was insufficient to support a takings claim. But the lower court's factual findings support the conclusion that the developer had distinct economic expectations for the proposed fill area, the neighboring upland property, and its scattered wetland holdings. The relevant parcel, therefore, should have only been the proposed fill area. On remand, the lower court should determine the property's loss in economic value due to the permit denial and then apply the appropriate framework to determine whether a compensable taking occurred.