Lakewood Associates v. United States

No. 97-303L (45 Fed. Cl. 320, 49 ERC 1933) (Fed. Cl. December 2, 1999)

ELR Digest

The court holds that because a land developer failed to receive an appealable final decision on its wetlands development permit application, the developer's takings claim against the U.S. Army Corps of Engineers is not ripe and must be dismissed as premature. The Corps, after receiving the developer's application for a § 404 permit under the Clean Water Act, requested additional information regarding practicable alternative sites. The developer never responded to this request and has yet to receive a permit. This suit followed. The court first holds that the Corps was justified in seeking additional information on the developer's suggested practicable alternatives. The Corps needed specific information that would allow for an informed, considered analysis of the environmental impact that would result from development of the alternative sites. The court next holds that the developer failed to establish that its continuance in the permitting process would have been futile. The developer's claim that there was no legitimate purpose for additional information concerning the practicable alternatives is not convincing in light of the facts that this information was requested by four different state and federal regulatory agencies that indicated that the information would facilitate the determination of whether the alternatives would have adverse environmental consequences. Moreover, the developer's claim of extensive time and expense that allegedly would have been required to gather the information are problems that are not unique to the developer. In addition, the developer failed to provide information to bolster its argument that the agency requests were unwarranted or unduly burdensome. The developer's allegations of the futility of the permitting process also find no support in the record.

Although the court holds that the developer failed to demonstrate that further participation in the permitting process would have been futile, the court also finds reasonable the Corps' argument that the developer is collaterally estopped from arguing that it was futile to participate in the permitting program. However, because this estoppel argument is somewhat weakened by the different, albeit overlapping, parties, and by the different, albeit interrelated, property tracts, the court relies on its independent finding that the developer's futility argument fails and dismisses the case.

The full text of this opinion is available from ELR (17 pp., ELR Order No. L-142).

Counsel for Plaintiff
Douglas E. Kahle
Pender & Coward
Greenwich Centre
192 Ballard Court at Greenwich Rd., Virginia Beach VA 23462
(757) 490-3000

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

[30 ELR 20227]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]