Appeal from the United States Court of Federal Claims in No. 1:08-cv-00117-CFL, Judge Charles F. Lettow.
JERRY STOUCK, Greenberg Traurig LLP, Washington DC, argued for plaintiff-appellee.
MATTHEW LITTLETON, Environment and Natural Resources Division, United States Department of Justice, argued for defendant-appellant. Also represented by KATHERINE J. BARTON, SAM HIRSCH.
MARK MILLER, Pacific Legal Foundation. Palm Beach Gardens, FL, for amici curiae Pacific Legal Foundation, National Association of Home Builders. Also represented by CHRISTINA M. MARTIN.
Before PROST, Chief Judge, NEWMAN, and REYNA, Circuit Judges.
Reyna, Circuit Judge.
On remand from Lost Tree Village Corp. v. United States (" Lost Tree I " ), 707 F.3d 1286 (Fed. Cir. 2013), the Court of Federal Claims held that the government's denial of Lost Tree Village Corporation's application for a permit to fill wetlands on a 4.99 acre plat (" Plat 57" ) constituted a per se regulatory taking under Lucas v. South Carolina Coastal, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), and, alternatively, a regulatory taking under Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). We affirm that a Lucas taking occurred because the government's permit denial eliminated all value stemming from Plat 57's possible economic uses. We do not reach the trial court's alternate holding under Penn Central.
In 1968, Lost Tree entered into an option agreement to purchase approximately 2,750 acres of property on the mid-Atlantic coast of Florida. The agreement gave Lost Tree the option to purchase various parcels of land, including a barrier island on the Atlantic coast, a peninsula west of the barrier island bordering the Indian River (known as the " Island of John's Island" ), and other islands in the Indian River, including Gem Island and McCuller's Point. From 1969 to 1974, Lost Tree purchased most of the land covered by the option agreement, including half of McCuller's Point, the Island of John's Island, and Gem Island. The Island of John's Island and Gem Island include the 4.99 acres now known as Plat 57.
Beginning in 1969 and continuing through the mid-1990s, Lost Tree developed approximately 1,300 acres of the property purchased under the option agreement into the gated residential community of John's Island. The John's Island community includes property on the barrier island, Gem Island, and the Island of John's Island. The community includes single family homes, a private hotel, condominiums, two golf courses, and a beach club.
Plat 57 is an undeveloped plat that lies on Stingaree Point, a small southerly peninsula on the Island of John's Island and Gem Island. Plat 57 consists of submerged lands and wetlands that have been disturbed by upland mounds vegetated by an invasive pepper species and by ditches installed for mosquito control. Though Lost Tree developed Stingaree Point and land bordering Plat 57, Lost Tree had no plans of developing Plat 57 until 2002.
In early 2002, Lost Tree learned that a developer applied for a wetlands fill permit for land south of Plat 57. As mitigation for the permit, the developer proposed improvements to a mosquito control impoundment on McCuller's Point. Because Lost Tree owned land on McCuller's Point, permitting authorities required Lost Tree's consent to the proposed mitigation. Lost Tree withheld approval and instead sought permitting credits in exchange for the developer's proposed improvements.
To take advantage of the potential permitting credits, Lost Tree sought permits and approvals required to develop Plat 57. In August 2002, Lost Tree submitted an application to the Town of Indian River Shores requesting approval for a preliminary
plat and permission to fill some of the wetland on Plat 57. Lost Tree filed a corresponding application for a wetlands fill permit under § 404 of the Clean Water Act, 33 U.S.C. § 1344. The town approved Lost Tree's application, and Lost Tree obtained zoning and other local and state permits necessary to begin developing Plat 57 into a residential lot. In August 2004, however, the Army Corps of Engineers denied Lost Tree's § 404 fill permit because the Corps determined that Lost Tree could have pursued less environmentally damaging ...