Broadwater Farms Joint Venture v. United States

No. 94-1041 L (45 Fed. Cl. 154, 49 ERC 1510) (Fed. Cl. October 25, 1999)

ELR Digest

The court holds that the U.S. Army Corps of Engineers' Federal Water Pollution Control Act § 404 use restriction on a real estate developer's construction in a wetland area did not constitute a partial compensable taking. The court first holds that the developer did not establish that it had reasonable investment-backed expectations for its planned development because it could not have expected to be free of government regulation. When the developer purchased the property, it possessed both actual and constructive knowledge of the regulatory scheme and actual knowledge of the possible existence of wetlands on the property. Similarly, the court holds that the developer took a calculated risk in developing the property when it had no reasonable basis for expecting that it would receive a permit. Last, the court holds that although the Corps may have seemed unwilling to compromise, the character of its action was not improper because it was merely enforcing a regulation as ordered by Congress. Moreover, if at times the Corp was overly zealous in its enforcement, this alone does not tip the scales in the developer's favor.

[A prior decision in this litigation is published at 27 ELR 21516.]

The full text of this opinion is available from ELR (4 pp., ELR Order No. L-109).

Counsel for Plaintiff
Keith A. Rosenberg
Law Offices of Keith A. Rosenberg
1001 Pennsylvania Ave. NW, Washington DC 20004
(202) 362-1100

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

[30 ELR 20165]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]