Tice Materials 28

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Information about Tice Materials 28

Published on January 3, 2008

Author: FunnyGuy

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Wetlands and Regulatory Takings:  Wetlands and Regulatory Takings Kristie M. Tice Vinson & Elkins LLP What is a “Regulatory Taking”?:  What is a “Regulatory Taking”? 5th Amendment: “nor shall private property be taken for public use, without just compensation” Applied to the states through the 14th Amendment For 150 years, just applied to “direct appropriation” or “physical taking” In Pennsylvania Coal v. Mahon (1922), Supreme Court held “that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking” Procedural and Practical Considerations:  Procedural and Practical Considerations Tucker Act, 28 U.S.C. § 1491 Gives U.S. Court of Federal Claims jurisdiction over takings claims Takings claims are expensive and time-consuming Cases remanded multiple times, multiple opinions Experts required to show economic impact Court of Federal Claims is located in D.C.; travel time and out-of-town litigation But if have the right claim, worth it Can be used as leverage Types of Regulatory Takings:  Types of Regulatory Takings Permanent Permanent loss of use or value Partial Takings Categorical or “Total” Takings Temporary Loss of use or value due to delay In wetlands context, taking usually arises from denial of Section 404 permit or delay in issuing a permit “Ad Hoc” Factual Inquiry Developed:  “Ad Hoc” Factual Inquiry Developed No set formulation for what is “too far” Penn Central v. City of New York (1978): Taking alleged for designation of Grand Central Terminal as a “landmark” under New York’s Landmark Preservation Law “Ad hoc” factors for assessing a takings claim: The economic impact of the regulation on the claimant The extent the regulation interferes with reasonable investment-backed expectations The character of the governmental action No taking Categorical or “Total” Takings Recognized:  Categorical or “Total” Takings Recognized Lucas v. South Carolina Coastal Council (1992): In 1986, Lucas bought 2 residential lots; in 1988, Beachfront Management Act enacted, barring construction of habitable structures on his land Categorical taking is suffered when regulation takes “all economically beneficial use” No case-specific inquiry into public interest of regulation Only exception is when proscribed use was not part of title to begin with, or where regulation does no more than could have been achieved under state nuisance law—”nuisance defense” Remand for analysis under state nuisance law; taking found Categorical Takings:  Categorical Takings Taking of “all” economic use means 100% If less than 100%, use Penn Central factors Palazzolo v. Rhode Island (2001) Denial of state permit to fill wetlands Not a “categorical” taking because still had $200,000 in development value in uplands (compared to $3.1M value of whole tract) Remanded for Penn Central analysis Cooley v. United States (Fed. Cir. 2003) Denial of Section 404 permit 98.8% decrease in value after denial not a categorical taking Categorical Takings:  Categorical Takings Moratoria on Development not a Categorical Taking Tahoe-Sierra Preservation Council (2002): landowners claimed planning agency’s moratoria on development was a categorical taking “All” use of property denied for a period of years But Court held that “fairness and justice” best served by analyzing under the Penn Central factors rather than as a “per se” categorical taking Requirement to Obtain a Permit Not a Taking:  Requirement to Obtain a Permit Not a Taking Riverside Bayview Homes (1985) Not a takings case—issue was jurisdiction of adjacent wetlands Sixth Circuit had held jurisdiction had to be narrowly construed to avoid takings problem Supreme Court stated that requirement to obtain a permit does not “take” the property because permission may be granted; even if permit denied, may be viable uses Only when permit is denied and economically viable use is prevented is there a taking Narrow reading of jurisdiction not required to avoid taking; if there is a taking, a claim for compensation can be filed Categorical Takings in Wetlands Context:  Categorical Takings in Wetlands Context If can prove denial of permit results in loss of 100% of economically beneficial use, probably have a winner because activities generally covered by dredge and fill permits are not typically able to be regulated as “nuisances” Bowles v. United States (Fed. Cl. 1994) Denial of Section 404 permit to fill lot to install septic system categorical taking Only economically viable use was for residential construction Building a residence not a nuisance; awarded $55,000 Penn Central Factors: Economic Impact:  Penn Central Factors: Economic Impact Economic Impact of the Regulation Measured by the change in the fair market value caused by the regulatory action (e.g., denial of a permit) Not just “mere diminution”; must cross the line to “partial taking”; not every restraint is compensable “Serious financial loss” or denial of “economically viable use” Impact must be evaluated on the “parcel as a whole” Degree of continuity Dates of acquisition Extent treated as a single unit Extent to which protected lands increase value of remaining lands Penn Central Factors: Economic Impact:  Penn Central Factors: Economic Impact Loveladies (Fed. Cir. 1994): 12.5 acres with 11.5 acres of wetlands; was part of 51 acre tract, which was part of 250 acre tract acquired in 1958. Corps denied permit for final phase, the 11.5 acres of wetlands. Court used the 12.5 acres as the parcel to assess impact b/c had dedicated 38.5 acres to state. Value before permit denial was $2.6M, after $12,500. Taking found. Forest Properties (Fed. Cir. 1999): Two separate tracts: 53 acres of uplands, 9.4 acres lake bottom; relevant parcel held to be entire 62 acre project; no evidence of reduction in value of entire parcel. No taking. Walcek (Fed. Cir. 2002): entire tract, not just jurisdictional wetlands Penn Central Factors: Reasonable Investment-Backed Expectations:  Penn Central Factors: Reasonable Investment-Backed Expectations Recovery limited to those who can show they bought property in reliance on the “non-existence” of the challenged regulations These expectations must be “reasonable” Whether “reasonable” depends on timing of purchase v. regulation, knowledge or notice of regulations, sophistication of parties, application of regulations to similar developments Penn Central Factors: Reasonable Investment-Backed Expectations:  Penn Central Factors: Reasonable Investment-Backed Expectations Bowles: reasonable b/c other houses (septic tanks) in subdivision did not require permits; as member of local governmental board, was not aware of any resident acquiring Corps permit Good: filling salt marsh in Fla. unreasonable; acknowledged in 1973 sales contract difficulty with obtaining dredge and fill permits; CWA existed in 1973; waited years to develop and regulation became stricter Broadwater Farms: unreasonable; Section 404 established at time of purchase (1988); sophisticated developer with actual knowledge of regulations Penn Central: Reasonable Investment-Backed Expectations:  Penn Central: Reasonable Investment-Backed Expectations What is “reasonable” when regulatory regime is changing, in flux? Penn Central Factors: Character of the Government Action:  Penn Central Factors: Character of the Government Action Generally undisputed that regulation of wetlands serves an important public purpose But activities requiring dredge and fill permits are not generally considered “nuisances” under state law Generally, not a major factor in analysis Temporary Takings:  Temporary Takings Tabb Lakes: Corps issued cease and desist in 1986; owner challenged jurisdiction and won in 1989 C&D order did not constitute a taking; preliminary agency decisionmaking and initiation of the permit process does not constitute a taking Taking may occur for “extraordinary” delay in decisionmaking Taking would begin at point delay becomes “unreasonable” Smereka: If gov’t is working on permit and no “bad faith,” the delay is not “extraordinary” (3 years) Sartori: 9 year C&D order; not a categorical taking; evaluate under Penn Central Mitigation as a Taking:  Mitigation as a Taking Norman: developer alleged requirement to set aside 220 acres of wetlands for mitigation was taking (approx. 65 acres filled); taking denied under Penn Central analysis Only “de minimis” reasonable investment-backed expectation in mitigation lands Fair market value increased after issuance of permit No diminution in value of parcel as a whole Permit was not denied; mitigation permissible and standard Brace: Consent Decree requiring wetlands restoration not a regulatory or physical taking; not compulsory When to File a Takings Claim—Not Too Soon, Not Too Late:  When to File a Takings Claim—Not Too Soon, Not Too Late Don’t file too soon—claim must be ripe Must be a final agency decision or if claimant can show the futility of further pursuit of a permit through the administrative process Must exhaust administrative remedies Corps has administrative appeals process for approved jurisdictional delineations, denied permits, and declined permits (33 C.F.R. Part 331) Must pursue appeal before challenging permit decision or filing takings claim When to File a Takings Claim—Not Too Soon, Not Too Late:  When to File a Takings Claim—Not Too Soon, Not Too Late Cooley: takings claim ripe when permit denied, absent administrative appeals process Heck: Corps’ withdrawal of permit application b/c of failure to obtain Section 401 water quality certification from state not a final decision; state’s cancellation of WCQ application also not final agency action Pax Christi: withdrawal of permit application for failure to provide information not final decision Bay-Houston: takings claim not ripe for certain peat mining parcels because permit process still underway or not yet started; applicant argued futility When to File a Takings Claim—Not Too Soon, Not Too Late:  When to File a Takings Claim—Not Too Soon, Not Too Late Don’t file too late—statute of limitations is 6 years If challenging decision on permit and alleging a taking, must do both within timeframe Bayou Des Familles: Applicant challenged 1979 denial permit on the merits until finality in 1985; related litigation lasted until 1995; applicant did not file takings claim until 1991; takings claim barred by SOL because claim accrued with 1979 denial of permit Challenge Corps decision and pursue takings claims contemporaneously

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