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Ward Gulfport Properties, L.P. v. Mississippi State Highway Comm'n

ELR Citation: 45 ELR 20208
Nos. 2014-CA-01001, (Miss., 10/22/2015)

The Mississippi Supreme Court reversed and remanded a lower court decision that the state's transportation agency did not effect a categorical or regulatory taking when it pledged approximately 1,300 acres of a developer's property for wetlands mitigation as part of its application for a dredge and fill permit from the U.S. Army Corps of Engineers. The developer filed suit against the state agency in state court and against the Corps in federal court. The federal court ruled in the developer's favor and vacated the permit. The state court, however, granted summary judgment in favor of the state agency, concluding that the Corps had caused the developer's losses. But the state court erred in failing to address the developer's argument that a categorical taking had occurred, even if the total deprivation was subsequently cut short due to the federal court's invalidation of the permit. Taking the facts in the light most favorable to the developer, when the state agency pledged the property as wetlands mitigation and the Corps issued the permit, the developer could no longer make economically viable use of the property. It could not develop it; it could not obtain permits for development; it could not sell it. The state agency's taking it for wetlands mitigation became the property's only use. The court also erred in finding no partial regulatory taking took place. The developer presented evidence that the state agency suggested using the developer's property as mitigation, the permit caused developer's requested development plans to be denied and caused potential buyers to back out of negotiations, and the developer suffered damages in the period between the permit's issuance and invalidation. This evidence was sufficient to defeat summary judgment.