Okay, all you "relevant parcel" mavens, here's another decision for you (once again involving land in Florida, although, unlike the other case which came out of the Florida court of appeals, this one is out of the U.S. Court of Appeals for the Federal Circuit) .
These decisions provide a measure of sanity to the issue of how much of the property owned by the plaintiff is included when determining whether value has been wiped out under Lucas, or the extent of the economic impact of the regulation on the claimant under Penn Central. These tests require an analysis of the impact of the regulatory action on the "parcel as a whole," and since Penn Central first made the inquiry relevant, the courts an litigants have been trying to figure out the "denominator" -- is it everything the plaintiff owns? Everything nearby? Everything it once owned? The discrete parcel by itself?
In Lost Tree Village Corp. v. United States, No. 2012-5008 (Fed. Cir. Jan. 10, 2013), the Federal Circuit held that a single parcel owned by the plaintiff was the relevant parcel against which the impact of the Corps of Engineers' denial of a § 404 wetlands dredge and fill permit is to be measured. The court overturned a Court of Federal Claims decision which concluded the relevant parcel was that single plot plus an additional nearby lot, plus "scattered wetlands in the vicinity" also owned by the same owner. The CFC had rejected the Corps' even broader argument which asserted that the relevant parcel was the entirely of the 1,300-acre gated community which the plaintiff had started to build in 1968, part of its ownership of 2,750 acres on islands near Vero Beach, Florida. Count us as surprised that the government didn't try for the whole shebang and argue that the denominator was all 2,750 acres, just to see if the court would bite. For more on the parcels, see the map embedded on page 6 of the Federal Circuit's opinion. The CFC held that the denial of the permit resulted in a 59% loss of value of the "relevant parcel," which was not enough to support a Penn Central takings claim.
The Federal Circuit concluded that despite the plaintiff's long-term ownership and development of nearby properties, the single parcel was really a stand-alone piece, and that the landowner's "economic expectations" regarding this parcel were not tied to its ownership of the others:
Here, Lost Tree did not treat Plat 57 as part of the same economic unit as other land it developed into the John’s Island community. The trial court correctly found that Lost Tree did not include Plat 57 in its formal or informal development plans for the community. Lost Tree, 100 Fed. Cl. at 431–32. The only proposal that ever addressed Plat 57 was the unapproved 1980 Permit Application. While the 1980 application proposed dedicating Plat 57 as a wildlife preserve to mitigate other development, Lost Tree withdrew that application. Thus, when the Corps eventually granted Lost Tree’s permit application, Plat 57 had no designated use.
Slip op. at 12. The court concluded with this:
The Court of Federal Claims erred by aggregating Plat 57, Plat 55, and the scattered wetlands as the relevant parcel. The only links between the two plats identified by the trial court are: 1) they are connected by the 323 foot strip of land owned by Lost Tree and therefore "undoubtedly contiguous," and 2) both currently are held with the "usage objective[ ] . . . to sell for profit the lots" on each plat. Id. at 434. Similarly, the scattered wetlands are only linked to Plat 57 by their geographic location within the gated community of John’s Island. Here, the mere fact that the properties are commonly owned and located in the same vicinity is an insufficient basis on which to find they constitute a single parcel for purposes of the takings analysis.
Slip op. at 14. The court remanded to the CFC with instructions to determine the impact of the permit denial on the single parcel, and then measure whether this amounts to a taking.
Lost Tree Village Corp. v. United States, No. 2012-5008 (Jan. 10, 2013)