# Norman v. United States

> United States Court of Federal Claims · December 10, 2004 · 63 Fed. Cl. 231

URL: https://www.frixlaw.com/law-library/cases/6653311

## Case

- **Full name:** Don Roger NORMAN, Roger William Norman, South Meadows Limited Properties Partnership v. United States
- **Court:** United States Court of Federal Claims
- **Decided:** December 10, 2004
- **Citations:** 63 Fed. Cl. 231; 34 Envtl. L. Rep. (Envtl. Law Inst.) 20157; 59 ERC (BNA) 1921; 2004 U.S. Claims LEXIS 332; 2004 WL 3051782
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Bush
- **Judges:** Bush
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6653311

## How later opinions describe it (automated extraction)

- finding expert appraisal unhelpful because it “did not address the economic impact of what the court has determined to be the relevant parcel”
- recognizing the “ ‘comparable sales method’ [a]s the generally accepted metric for determining the economic impact [of a regulatory taking]”

## Opinion text

OPINION
BUSH, Judge.
This takings case is before the court following a trial held December 1st through 9th, 2003 in Washington, D.C. Plaintiffs seek just compensation under the Fifth Amendment, alleging that the government took without compensation 220.85 acres of plaintiffs’ property by requiring plaintiffs to set aside this acreage as mitigation wetlands in consideration of obtaining a Section 404 permit to fill and impact other wetlands under the Federal Water Pollution Control Act (FWPCA) Amendments of 1972, Pub.L. No. 92-500, § 404 , 86 Stat. 816 (1972) (codified at 33 U.S.C. § 1344 (2000)). In essence, plaintiffs challenge the Corps’ action to require a landowner to create and build mitigation wetlands in exchange for impacting other wetlands in an effort to assure no net loss of *234 wetlands, arguing that such a mitigation requirement constitutes a compensable taking. Based on the evidence presented at trial, and for the reasons that follow, the court concludes that plaintiffs are not entitled to recover compensation, as no taking of property has occurred.
1. FINDINGS OF FACT
A. Background
The background of this ease spans over a decade of land acquisitions, purchases, sales, development plans, permit applications and issuances, with ever-changing persons, parties, companies, partnerships and entities involved. Because of the complex nature of this matter, the court has taken every measure possible to clearly and accurately describe the facts presented at trial. We ask the reader of this opinion to patiently follow the court as we recount a seemingly endless chronology of transactions and wade through the numerous acreage values, property values and land descriptions necessary to accurately render this opinion.
1. Plaintiffs Purchase The Double Diamond Ranch
Plaintiffs are the father and son real estate development team of Don Roger Norman and Roger William Norman (Normans), and the limited partnership, South Meadows Properties Limited Partnership (South Meadows). Together, they planned to develop commercial and industrial office space in Reno, Nevada on an approximately 2425-acre parcel of land called the Double Diamond Ranch (Ranch). Prior to this time, the Ranch was used for ranching and agricultural activities for nearly eighty years. Because the area where the Ranch was located received an annual average of only 7.14 inches of natural rainfall, the Ranch was irrigated by its previous owners with nearly six acre-feet of water per year per acre, through a complex system of irrigation ditches that criss-cross the Ranch property, in order to support ranching and agricultural activities.
In 1986, the Ranch was purchased by Southmark Corporation (Southmark), which intended to convert the property from agricultural and ranching usage into a large-scale commercial and residential development. Southmark prepared a detailed and comprehensive master plan for the construction of 7000 residential units, 321 acres of commercial space, and 37 acres of retail shops on the former Ranch property (Master Plan). The Master Plan also called for the construction of roads, schools, churches, fire stations, recreational trails, and parks, etc. — in short, the Master Plan contained all of the elements necessary for the development of a self-contained community.
On January 30, 1987, the Reno City Council (City Council) conditionally approved Southmark’s Master Plan and zoning requests by adopting a resolution of intent approval. However the City Council’s resolution of intent approval contained forty-one separate and detailed conditions that South-mark was required to satisfy concerning traffic, transportation, permits, etc. Of particular concern to the matter at bar was Condition 15. Condition 15 required that prior to the issuance of any permit by the City of Reno, or the commencement of any site work, Southmark had to submit plans approved by the United States Army Corps of Engineers (Corps) delineating wetlands or any other lands the development of which were subject to the issuance of federal permits.
Wetlands are areas of land that are inundated or saturated by surface or groundwater, with frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. 33 C.F.R. § 323.2 (c) (1978); 40 C.F.R. § 230.41 (a)(1) (2004). 2 Wetlands tend to be marshes, bogs, or tidal areas that serve important ecological functions, including protecting erosion and flood control.
A delineation is a several-step process that the Corps undertakes to determine whether or not an area on a property may be within the jurisdiction of the Corps, including whether an area constitutes a protected wet *235 land. The Corps initially decides whether an area is a federally protected wetland, and if a wetland is present, the Corps determines the boundary of that wetland. From an ecological point of view, the Corps looks at whether there exists hydric soil to support hydrophytie vegetation.
Once the wetlands have been identified and mapped, usually a report is prepared with a map showing the wetland boundaries. Once an accurate map is completed, the Corps will a prepare a letter to notify the property owner of the official designation of wetlands on the landowner’s property. Areas that are defined as non-wetlands are outside of the Corps’ jurisdiction and do not require a permit for building. However, those areas that are mapped as wetlands require a permit to fill the land and for any building.
The Corps has the primary responsibility for processing wetland permits. Section 404 of the Clean Water Act (CWA) forbids the discharge of a pollutant by any person into wetlands, except in accordance with the statutory scheme requiring a permit for such discharge. 33 U.S.C. § 1344 . The Corps may issue permits for the “discharge of dredged or fill material into the navigable waters at specified disposal sites.” Id. § 1344(a).
The Corps had previously contacted South-mark in August 1986 concerning the possible existence of wetlands on the Ranch that might be impacted by the proposed Master Plan. At that time, the Corps conducted a preliminary assessment of the Ranch property and concluded that there existed approximately 1300 acres of potential wetlands vegetation on the Ranch. Although the Corps’ preliminary assessment did not represent a final wetlands determination under the Section 404 regulatory scheme, Southmark disagreed with the Corps’ conclusion on the grounds that most of the vegetation on the property was a direct result of years of artificial flood irrigation. Consequently, on March 16, 1987, Southmark suspended all artificial irrigation of the Ranch in an effort to ensure that the Corps could evaluate hydrogeological conditions in the Ranch under normal circumstances when it did ultimately prepare its final wetlands determination.
In the spring of 1988, the Normans became interested in purchasing a 470-aere commercial portion of the Ranch for development as an industrial park, per the Master Plan. They were unwilling, however, to purchase the 470-acre commercial portion until the Corps completed a final wetlands delineation of the property.
2. The 1988 Wetlands Delineation
Thus, in June 1988, a team of wetlands experts from the Corps was sent to the Ranch to conduct field work necessary to prepare a final wetlands delineation. The delineation team visited the Ranch for one week and gathered data from thirty-two sites throughout the Ranch to determine what portions of the Ranch property, if any, exhibited the characteristics necessary to classify that land as jurisdictional wetlands. 3 Using field data gathered by the delineation team, on September 12, 1988, the Corps issued a delineation, which was prepared pursuant to the 1987 version of the Corps’ Wetlands Delineation Manual. It concluded that the Ranch property contained twenty-eight acres of jurisdictional wetlands. Seventeen of these acres were located on the 470-acre commercial parcel the Normans were considering purchasing, while the remaining eleven acres were located on the part of the Ranch marked for residential development. The existence of seventeen acres of wetlands on the 470-aere commercial parcel did not interfere with the development planned for the Ranch and easily could have been incorporated into open spaces that already existed under the Master Plan.
Shortly after the Corps issued this 1988 delineation, Southmark sold the Ranch property to two entities, Double Diamond Ranch Limited Partnership (DDR), and G & E General Contractors (G & E). The sale of the Ranch, for a total purchase price of $20 million, was closed on December 30, 1988. *236 The sale was structured so that DDR took title to approximately 1800 acres of the Ranch which had been designated for residential development (Residential portion), while G & E took title to approximately 470 acres of Ranch land that had been designated for commercial, industrial and retail development (Commercial portion). Some acreage was also transferred to the City of Reno and other municipal entities for the building of highways and other improvements. DDR paid $11.6 million for the Residential portion, while G & E paid $8.4 million for the Commercial portion with money provided by the Normans.
Following the sale, on January 9, 1989, G & E and DDR entered into an agreement whereby the two entities agreed to work together to develop the Residential and Commercial portions of the Ranch property (Development Agreement). The Development Agreement was signed by Robert Helms, on behalf of DDR, and by Lance Gilman, president of G & E, on behalf of G & E 4 Under the Development Agreement, DDR agreed to construct certain offsite improvements such as roads, curbs and gutters, utilities, etc., necessary for the development of the Commercial portion. For its part, G & E agreed to ensure satisfaction of the forty-one development conditions imposed by the City of Reno in its conditional approval of the Master Plan. The Development Agreement also addressed the allocation of water rights between the Commercial and Residential portions. In addition, both parties agreed to meet on a regular basis (at least annually) to discuss traffic mitigation measures. Finally, the parties acknowledged that the development of the Commercial and Residential portions would require the parties’ continued cooperation and best efforts. However, beyond this, the Development Agreement left the parties free to develop their respective portions of the project independently.
As of December 30, 1988, the Normans had acquired the Commercial portion through a tax-free exchange with G & E, though title of the Commercial portion was not transferred to the Normans until June 20,1989. 5 On that date, title was transferred to two trusts — the Don Roger Norman Trust and the Roger William Norman Trust. The Normans later quitclaimed their ownership in the 470-acre Commercial portion to plaintiff South Meadows, a limited partnership which includes the Normans and Lance Gil-man. The Normans did not become parties to the 1989 Development Agreement until September 30, 1991, when the Normans and Robert Helms executed a document entitled “Amendment to Development Agreement,” which amended the original Development Agreement between DDR and G & E. This amended agreement acknowledged that all obligations, rights, title, and interest in the Commercial portion and in the 1989 Development Agreement had been conveyed to the Normans. The amended agreement, like the original Development Agreement, called for the Normans and Mr. Helms to cooperate in the construction and financing of certain off-site improvements.
The original Ranch property, bought by Southmark, and then later split into the Commercial and Residential portions sold to G & E/South Meadows and DDR/Helms, respectively, can be described in the following manner. The Ranch property is located in an area called Truckee Meadows, which is located in the southeast portion of Reno, Nevada. The 470-acre Commercial portion purchased from G & E by the Normans, and later deeded to South Meadows, lies west of Double R Boulevard, which was previously referred to as the Moana Lane divide. The Commercial portion generally extends to U.S. Highway 395 (also known as Interstate Route 580). The 1800-acre Residential portion lies to the east of Double R Boulevard and extends beyond Double Diamond Parkway up to and beyond Carat Boulevard. Although these roads did not initially exist in 1988, they were later created when the *237 Ranch property was undergoing its development.
Because of the complicated nature of this lawsuit, it is important to identify the location of the wetland parcels delineated by the Corps in 1988 in reference to the Commercial and Residential portions. The seventeen acres of wetlands delineated on the 470-acre Commercial portion of the Ranch, under the Corps’ 1988 wetlands determination, were located as follows:
• A 5.34-acre parcel which borders, and is located east of, Highway 395, referenced as wetland 21 (WL 21);
• A 4.38-acre parcel between the Moana Lane divide and Highway 395, referenced as wetlands 19 and 20 (WL 19 and WL 20);
• A 7.64-acre parcel located south of Thomas Creek Channel, referenced as wetland 17A (WL 17A); and
• A sliver of .14 acres of wetlands located near Whites Creek.
Joint Ex. 8, App. C.; Def.’s Ex. 299.
The other eleven acres of wetlands delineated by the Corps in 1988 are located on the 1800-acre Residential portion sold by South-mark to DDR/Helms. These eleven acres are:
• A 4.81-acre parcel located south of Carat Boulevard, referenced as wetland 5 (WL 5);
• A 5.5-acre parcel located north of Double Diamond Parkway and east of the Moana Lane divide, referenced as wetland 22 (WL 22); and
• A small sliver of .47 acres of wetlands located near Double Diamond Parkway, referenced as wetland 1.5 (WL 1.5).
Joint Ex. 8, App. C.; Def.’s Ex. 299.
3. The 1991 Redelineation Of Wetlands On The Ranch
In the months following the sale of the Ranch from Southmark to plaintiffs, a storm of controversy arose concerning the Corps’ 1988 wetlands delineation. The 1988 delineation was severely criticized by the general public, environmental groups, and even by employees of the Corps and other federal agencies, including the United States Environmental Protection Agency (EPA), and the United States Fish & Wildlife Service (FWS).
Eventually, the Corps revoked the 1988 wetlands delineation and conducted a new delineation under the 1989 version of the Corps’ Wetlands Delineation Manual. The Corps informed the Normans, by letter dated October 10, 1990, that the 1988 wetlands delineation of the Ranch was no longer valid and that a new delineation of the Ranch property was required. The Corps’ October 10, 1990 letter explained that the 1988 wetlands delineation may have been inaccurate because the delineation team utilized a growing season that was not appropriate for the area where the Ranch was located. Therefore, the Corps informed plaintiffs that the Corps would conduct a new delineation, utilizing the proper growing season for the area.
In April 1991, a delineation team from the Corps returned to the Ranch to collect data for a new wetlands delineation. The delineation team collected data from 108 sites across the Ranch over a week-long period. Using this data, and following the procedures set forth in the 1989 version of the Corps’ Wetlands Delineation Manual, the Corps prepared a new delineation of the Ranch property-
Whereas the 1988 wetlands delineation had identified only twenty-eight acres of wetlands on the Ranch (seventeen of which were on the 470-aere Commercial portion purchased by the plaintiffs), the 1991 delineation identified 230 acres of wetlands on the Ranch property. Eighty-seven acres of wetlands, including the original seventeen acres, were now on the Commercial portion, and 143 acres were now on the Residential portion. Whereas the 1988 delineation was based upon an estimated growing season allowed by the 1987 manual, the 1991 redelineation was based upon actual, measured soil temperature, and not an estimated growing season.
Thus, as a result of the new 1991 redelineation of wetlands, in addition to the original seventeen acres, the following areas were *238 designated by the Corps as wetlands on the Commercial portion:
• A 4.19-acre parcel located adjacent to wetland 17A, referenced as wetland 17B (WL 17B);
• An approximately sixty-acre parcel of wetlands located between Double R Boulevard and Highway 395, referenced as wetland 15 (WL 15); and
• A small grouping of wetlands parcels adjacent to WL 15, referenced as wetlands 8 through 14 (WLs 8-14).
Joint Ex. 19; Def.’s Ex. 299.
Similarly, in addition to the original eleven acres delineated in 1988, the following additional areas were designated by the Corps as wetlands on the Residential portion in 1991:
• An approximately 115-acre parcel located adjacent to, and east of, WL 15, referenced as wetland 16 (WL16);
• A parcel located along the North Channel, referenced as wetland 1 (WL 1);
• Small parcels of wetlands located around Whites Creek Channel, referenced as wetlands 2, 3 and 4 (WLs 2-4);
• A parcel located south of, and adjacent to, WL 5, referenced as wetland 6 (WL 6); and
• A parcel located south of WL 16 and east of WLs 8-12, referenced as wetland 7 (WL 7).
Joint Ex. 19; Def.’s Ex. 299.
The effect of the 1991 redelineation is at the heart the dispute adjudicated at trial. Plaintiffs put forth evidence attempting to prove that the Corps’ rescission of the 1988 delineation was fatal to plaintiffs’ and Helms’ efforts to carry out Southmark’s original Master Plan for development of the Ranch property. Shortly after the Corps released the 1991 wetlands delineation, plaintiffs claim that they were forced to go back to the drawing board and embark on a new plan to develop the entire Ranch development. According to the testimony of Lance Gilman, real estate broker for the Normans and partner in South Meadows, plaintiffs were forced into phased development because of the 1991 delineation.
Plaintiffs’ new plan was to try to develop the Ranch property in phases. In November 1991, plaintiffs applied to the City of Reno for a master plan amendment and zoning map amendments to develop 210 acres of the Commercial portion as a planned unit development (PUD). According to documents submitted to the City, plaintiffs intended to develop this 210-acre tract, referred to as “South Meadows Planned Development Phase I,” to include commercial, industrial, office and multi-family residential components (Phase I). On February 25, 1992, the City Council tentatively approved plaintiffs’ plans to proceed with the development of Phase I of the Commercial portion as a PUD.
In 1994, plaintiffs acquired additional, neighboring ranch areas for their development. These properties — the Flindt, Pecetti and Dotta ranches — were developed as Phase II of the new development (Phase II). Combined, these ranches total approximately 130 acres and became part of Phase II of South Meadows’ planned development. 6
In late 1994, plaintiffs began to pursue acquisition and development of the Residential portion of the Ranch, also as a planned unit development. On September 29, 1994, South Meadows purchased the 1800-acre Residential portion from the bankruptcy estate of Robert Helms, for a total purchase price of $30 million. The $30 million purchase price included $2 million cash, plaintiffs’ assumption of a $22 million note, and plaintiffs’ waiver of a $6 million claim against the Helms’ bankruptcy estate.
In November 1994, plaintiffs filed a petition with the City to re-annex the Residential portion of the Ranch and sought a master plan amendment and zoning for a PUD for the Residential portion so that the 1800-acre Residential portion from the Helms’ bankruptcy estate could constitute Phase III of the South Meadows development project (Phase III). Mr. Helms had previously deannexed his 1800-acre estate. In early 1995, plaintiffs received conditional approval from the City of Reno to develop the Residential *239 portion as a PUD. The purchase of the Helms property and the re-annexation of that property with the Commercial portion and the surrounding neighboring properties purchased by plaintiffs for Phases I, II and III of plaintiffs’ overall planned development, including an October 1999 addition to Phase III, but excluding property conveyed to NDOT for highways and interchanges, created a new 2280.93-acre development property (2280-acre Development). 7
Subsequent to the purchase of the Helms property, plaintiffs sold off a large portion of the Residential portion in bulk to Double Diamond Ranch LLC (also referred to as Double Diamond Homes (DDH)). 8 Included in the part of the Residential portion sold to DDH were WL 1.5 and WLs 2-7.
4. The 1995 Permit
In January 1995, plaintiffs submitted an application to the Corps for a permit under section 404 of the Clean Water Act, 33 U.S.C. § 1344 . In them application, plaintiffs sought approval from the Corps to impact thirteen acres of wetlands, and approximately two acres of “other waters” of the United States, as part of plaintiffs’ plan to develop the entire Ranch area for commercial, industrial and residential uses. To mitigate the impact of the proposed development on wetlands and other waters, plaintiffs proposed to create additional wetlands to ensure no net loss of wetlands functions and values. Plaintiffs’ mitigation proposal called for the creation of 20.6 acres of replacement wetlands, or approximately 1.37 acres of mitigation for each acre of wetlands impacted. Plaintiffs’ application, including the proposed mitigation scheme, was approved by the Corps, and a Section 404 permit was issued to plaintiffs on May 22,1995 (1995 Permit).
5. The 1999 Permit
On March 27, 1998, South Meadows submitted another application for a Section 404 permit, seeking to impact wetlands on the 2280-acre Development to construct a multipurpose commercial, industrial and residential development on the property. On January 13, 1999, the Corps informed South Meadows that its project, as proposed, would result in significant environmental impacts and therefore the Corps would have to prepare an Environmental Impact Statement in compliance with the National Environmental Policy Act of 1969, Pub.L. No. 91-190, 83 Stat. 852 (codified in scattered sections of 42 U.S.C. § 4321 , et seq. (2000) (as amended)). However, the Corps indicated in its letter that providing a mitigation plan which clearly reduced the project impacts to a less than significant level would preclude the need for an Environmental Impact Statement. The Corps enclosed with its letter an environmental assessment which described a project which would be less environmentally damaging — a modified development alternative.
On March 1, 1999, the Corps explained its proposed modified development alternative to plaintiffs, which would allow the Corps to complete the Section 404 permitting process without preparing an Environmental Impact Statement on plaintiffs’ application to fill additional wetlands in the 2280-acre Development area. In July 1999, South Meadows, along with DDH, submitted a revised mitigation and monitoring proposal for both the Commercial and Residential portions of the 2280-acre Development.
According to the testimony of Kevin Roukey, a project manager for the Corps, the mitigation proposal was a result of a negotiations process between the Corps and plaintiffs. In particular, the parties discussed which areas of property on the 2280-acre Development could be utilized as mitigation wetlands. According to the testimony of Vince Griffith of Reno Engineering, consultant to the Normans and project engineer to *240 the development, the Corps generally proposed the areas which could serve as mitigation wetlands. The Corps determined that the areas designated on the 2280-acre Development for storm drainage could sufficiently serve as a mitigation wetlands due to the hydrology surrounding that area. Over a course of meetings, the parties determined that in exchange for being able to fill existing wetlands, the plaintiffs would maintain the storm drainage system as mitigation wetlands.
In August 1999, this proposal was approved by the Corps. Consequently, on August 31, 1999, the Corps issued plaintiffs and DDH a Section 404 permit. (1999 Permit). This permit incorporated the conditions and requirements in the 1995 Permit and super-ceded it. The 1999 Permit allowed plaintiffs to:
• Fill 60.24 acres of wetlands (WLs 1, 11.5,12,13,14,15 and 17A);
• Maintain the 1.32 acres of filled waters permitted under the 1995 permit (WLs 10 and 10. 5); and
• Fill 1.42 acres of waters of the United States.
In summation, under the 1999 Permit, plaintiffs were allowed to impact 61.56 acres of wetlands and 1.42 acres of waters of the United States. In exchange, plaintiffs were required under the 1999 Permit to:
• Create 60.24 acres of wetlands (C-l water detention basin);
• Create 1.32 acres of waters of the United States (located in the North Channel);
• Preserve and maintain 17.16 acres of existing wetlands (WLs 20, 21, 22 and 1TB);
• Restore 115.7 acres of existing wetlands (WL 16); and
• Construct 1.42 acres of other waters of the United States as compensatory mitigation (within the Thomas and Browns creek channels).
Thus, under the 1999 Permit, plaintiffs were required to create, preserve, maintain or restore 194.42 acres of wetlands and 1.42 acres of waters of the United States for a total of 195.84 acres. In addition to these requirements, the 1999 Permit also required plaintiffs to:
• Reeord[ ] the formation of a Corps approved funding mechanism for the long term maintenance of the mitigation and preserve areas.
• Reeord[ ] deed restrictions maintaining all mitigation preservation areas as wetland preserves and wildlife'habitat in perpetuity (Deed of Restrictions).
The Deed of Restrictions, attached to the 1999 Permit, is also a point of contention between the parties. The Deed of Restrictions explicitly prohibits development, stating that “no commercial, industrial, agricultural or residential developments, structures or buildings shall be allowed or permitted in the [pjrotected [a]rea.” Def.’s Ex. 31 at 3. The Deed of Restrictions prohibited all development on the wetlands areas, and further prohibited the destruction of vegetation and natural plants in the wetlands area, the plowing or cultivation of any wetlands areas, and required that the wetlands areas be maintained as open space. The 1999 Permit required the plaintiffs to record the Deed of Restrictions maintaining all mitigation preservation areas as wetlands preserves and wildlife habitat “in perpetuity.” Joint Ex. 29 ¶ 9(b). In order to comply with the condition requiring a Corps-approved funding mechanism for the long term maintenance of the mitigation and preservation areas, plaintiffs conveyed title to all of the wetlands mitigation acres to a non-profit property owners association. This property association, the South Meadows Association, was approved by the Corps as a funding mechanism for the long-term maintenance of the mitigation and preservation areas required under the 1999 Permit.
The Deed of Restrictions is broader than the 1999 Permit. 9 According to plaintiffs, it *241 required plaintiffs to set aside as mitigation wetlands the following:
• 66.45 acres of the C-l detention basin;
• 24.25 acres of waters of the North Channel; 10
• 7.76 acres of wetlands of area C-2;
• 6 acres of wetlands of WL 22;
• 2.02 acres of waters of the Thomas Channel;
• 1.314 acres of waters of the Delta Channel;
• 2.53 acres of wetlands of WL 20;
• .632 acres of wetlands of WL 11;
• 115.18 acres of wetlands of WL 16;
• 4.19 acres of wetlands of WL 17B; and
• 4.82 acres of wetlands of WL 21.
Plaintiffs set forth evidence at trial that the recordation of the Deed of Restrictions was required under the 1999 Permit, and furthermore, because of it, 220.85 acres of land were required to be set aside as wetlands. Although the 1999 Permit required only 195.84 acres of mitigation wetlands to be maintained as such, and the Deed of Restrictions required a total of 235.14 acres to be maintained as wetlands, plaintiffs’ taking claim is for 220.85 acres of property that was required to be maintained as wetlands under both the 1999 Permit and the Deed of Restrictions when read together as one document.
Plaintiffs achieve the 220.85-acre number in the following way: plaintiffs omitted from their takings claim 14.29 acres of land from the 235.14 acres indicated in the Deed of Restrictions. These 14.29 acres constitute a reduction of 10.38 acres of land from WL 16, a reduction of 1.21 acres of land from WL 20, and a reduction of 2.7 acres of land from various other parcels that had been previously designated as wetlands. 11 Plaintiffs omitted these portions from their takings claim because these areas are those which plaintiffs agree were not taken by the government because plaintiffs used them as drainage areas in order to develop their property. Thus, plaintiffs’ overall takings claim of 220.85 acres represents the following areas that plaintiffs claim were required by the Corps to be maintained and designated as wetlands:
• 4.82 acres of WL 21;
• 4.07 acres of WL 17B;
• 104.8 acres of WL 16;
• 1.32 acres of WL 20;
• 1.314 acres of waters of the Delta Channel;
• 2.02 acres of waters of the Thomas Channel;
• 5.5 acres of WL 22;
• 6.82 acres from area C-2;
• 65.94 acres of C-l detention basin; and
• 24.25 acres of waters of the North Channel.
In summation, the amount of acreage plaintiffs claim to have been taken by the Corps by virtue of the Deed of Restrictions and the 1999 Permit totals 220.85 acres — the areas that the Corps mandated to remain undeveloped by plaintiffs and set aside as mitigation wetlands. As stated above, this acreage was deeded to the South Meadows Association to ensure that the mitigation wetland areas be maintained as wetlands and remain unused and undeveloped by plaintiffs or any other entity. Because of the Corps’ requirement that these areas be transferred to a “Corps approved funding mechanism for the long term maintenance of the mitigation and preserve areas,” plaintiffs claim damages of $34,233,000 (plus 10% interest), allegedly *242 the fair market value of this property. Joint Ex. 29 19(a).
After the issuance of the 1999 Permit, plaintiffs continued to sell the developable parts of the 2280-acre Development to various independent third parties. From the sale of the developable areas in the Commercial portion, Residential portion and other properties that constituted Phases I, II and III of plaintiffs’ entire development project, at the time of the issuance of the 1999 Permit, plaintiffs only retained ownership of 716 acres of property.
B. Procedural History
This matter has a long and winding history. Plaintiffs commenced this lawsuit on October 5, 1995. In 1996, plaintiffs moved for partial summary judgment solely on the issue of liability and the government cross-moved for summary judgment on the entire case. On August 12, 1997, the trial court issued an opinion granting the government’s cross-motion to dismiss plaintiffs’ breach of contract claim, granting the government’s motion to dismiss the claims of temporary and permanent takings of the residential property, and denying the government’s cross-motion for summary judgment on the claims of permanent and temporary takings of the commercial property. Norman v. United States, 38 Fed.Cl. 417, 430 (1997).
On January 27, 1999, the case was reassigned to the undersigned. On September 21, 1999, the government moved for summary judgment on the claims of a temporary and permanent taking of the commercial property. On November 9, 1999, plaintiffs filed a cross-motion for summary judgment. On February 26, 2001, over the objection of plaintiffs’ counsel on relevancy grounds, the court deferred the resolution of defendant’s motion for summary judgment and plaintiffs’ cross-motion pending the decision of the United States Supreme Court (Supreme Court) in Palazzolo v. Rhode Island, No. 99-2047.
On August 20, 2001, plaintiffs filed a motion for leave to amend their original complaint based, in large part, on the Supreme Court’s decision in Palazzolo v. Rhode Island, 533 U.S. 606 , 121 S.Ct. 2448 , 150 L.Ed.2d 592 (2001), which was issued on June 28, 2001, as well as the change of circumstances in this ease that had occurred since the original complaint was filed in 1995. The proposed amended complaint: (1) eliminated the breach of contract claim on which the trial court granted summary judgment to defendant in 1997; (2) revised the permanent taking claim to allege a right to just compensation for 193.11 acres which plaintiffs were required to dedicate to public use in perpetuity; (3) reinstated plaintiffs’ claim for the taking of the Residential portion acquired in 1994 in accordance with the holding in Palazzolo ; and (4) added a new claim for illegal exaction.
On March 27, 2002, the court issued an order wherein it granted, inter alia, plaintiffs’ motion for leave to amend original complaint, filed August 20, 2001. Thus, defendant’s pending motion for summary judgment and plaintiffs’ cross motion for partial summary judgment were rendered moot through the filing of the amended complaint. On April 10, 2002, the government filed its answer to the amended complaint. Subsequently, on May 21, 2002, the court issued an order granting plaintiffs’ motion to dismiss with prejudice its temporary takings claim raised in the March 27, 2002 amended complaint.
On February 12, 2003, the government filed: (1) its motion for partial summary judgment and corrected memorandum in support of its motion for partial summary judgment; and (2) its corrected motion in limine to bar plaintiffs from challenging the validity of the government action that allegedly effected a taking in this case. In March 2003, the court heard oral argument on the government’s motion for partial summary judgment and motion in limine and plaintiffs’ responses thereto.
On April 17, 2003, this court issued an opinion dismissing plaintiffs’ illegal exaction claim for lack of subject matter jurisdiction. Norman v. United States, 56 Fed.Cl. 255 (2003). In view of this dismissal, defendant’s motion for partial summary judgment dated February 12, 2003 and plaintiffs’ cross-motion for partial summary judgment *243 were denied as moot. Furthermore, defendant’s motion in limine to bar plaintiffs from challenging the validity of the government action that allegedly effected a taking in this case, filed February 12, 2003, was granted in part insofar as it sought to prevent plaintiffs from directly challenging the validity and authorization of the government’s actions which formed the basis of plaintiffs’ Fifth Amendment takings claim. Trial was set for December 1st through 12th, 2003.
On May 22, 2003, this court issued an order regarding plaintiffs’ motion to strike several of defendant’s witnesses. As a result of the court’s April 17 and May 22, 2003 rulings, on September 16, 2003, the parties submitted Revised Memorandums of Contentions of Fact and Law. On November 3, 2003, plaintiffs then filed a motion in limine to exclude the testimony of several of defendant’s witnesses.
On November 13, 2004, the parties attended a pretrial conference in this matter. At this time, the court heard oral argument with respect to plaintiffs’ November 3, 2003 motion in limine to exclude testimony, and defendant’s response in opposition thereto. The court also heard oral argument regarding exhibits and witnesses objected to by the parties as set forth in their Revised Memorandum of Contentions of Fact and Law, filed September 16, 2003. During the pretrial conference, plaintiffs withdrew their cause of action that related to the taking by the government of 2446 residential units for public use. Also during the pretrial conference, plaintiffs made an eleventh-hour request to amend them complaint to amend the amount of acreage claimed to have been taken by defendant to 220.85 acres, and to amend any additional damages sought by plaintiffs.
On November 18, 2003, the court granted plaintiffs leave to file a motion to amend their complaint, which plaintiffs filed on November 20, 2003. The court also allowed the parties to introduce evidence of plaintiffs’ personal and financial losses from 1988 through the date of the alleged permanent taking in 1999 for the limited purpose of demonstrating or refuting the alleged economic impact of the regulation at issue with regard to the analysis set forth in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 , 98 S.Ct. 2646 , 57 L.Ed.2d 631 (1978). The court also rendered its decision on the admissibility of various witnesses and exhibits for trial.
Consequently, on December 1, 2003, the court granted plaintiffs’ motion to retroactively amend their complaint, which plaintiffs submitted on January 5, 2004. Defendant filed a revised answer on January 16, 2004. After trial was held from December 1st through 9th, 2003, on January 15, 2004, per Appendix A, If 19 of the Rules of the United States Court of Federal Claims (RCFC) governing case management procedure, this court ordered the parties to file their post-trial briefs, addressing the parties’ contentions, proposed findings of fact, and legal argument.
II. DISCUSSION
The Takings Clause of the Fifth Amendment commands: “[N]or shall private property be taken for public use, without just compensation.” U.S. Const, amend. V. As explained by the Supreme Court, “[t]he aim of the Clause is to prevent the government ‘from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” E. Enter. v. Apfel, 524 U.S. 498, 522 , 118 S.Ct. 2131 , 141 L.Ed.2d 451 (1998) (citing Armstrong v. United States, 364 U.S. 40, 49 , 80 S.Ct. 1563 , 4 L.Ed.2d 1554 (I960)); see also Palazzolo v. Rhode Island, 533 U.S. 606, 618 , 121 S.Ct. 2448 , 150 L.Ed.2d 592 (2001).
The Federal Circuit has developed a two-part test to evaluate whether a governmental action constitutes a taking of private property without just compensation. See Maritrans Inc. v. United States, 342 F.3d 1344, 1351 (Fed.Cir.2003); Cienega Gardens v. United States, 331 F.3d 1319, 1328 (Fed.Cir.2003); Chancellor Manor v. United States, 331 F.3d 891, 901-02 (Fed.Cir.2003); M & J Coal Co. v. United States, 47 F.3d 1148, 1153-54 (Fed.Cir.1995). Under the first prong of this test, the court must evaluate whether the claimant has a “property *244 interest” that was affected by the government action. See Maritrans, 342 F.3d at 1351 ; M & J Coal Co., 47 F.3d at 1154 . Second, once the court has determined that a property interest exists, it must determine whether a taking has occurred. Maritrans, 342 F.3d at 1351 .
A taking can occur via a physical occupation by the government of one’s property, or via a regulation deemed necessary to promote the public interest that so imposes on the owner’s property rights that, in essence, it effectuates a taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 430 , 102 S.Ct. 3164 , 73 L.Ed.2d 868 (1982). The text of the Fifth Amendment provides a basis for distinguishing between physical takings and regulatory takings. Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 321 , 122 S.Ct. 1465 , 152 L.Ed.2d 517 (2002). The plain language of the Takings Clause requires the payment of compensation whenever the government acquires private property for a public purpose, whether the acquisition is a result of a condemnation proceeding or a physical appropriation. Id. But the Constitution contains no comparable reference to regulations that prohibit a property owner from making certain uses of his or her property. Id. The jurisprudence involving condemnations and physical takings utilizes a straightforward application of per se rules. Id. However, the regulatory jurisprudence is characterized by the ad hoc factual inquiry propounded in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124 , 98 S.Ct. 2646 , 57 L.Ed.2d 631 (1978), which involves an evaluation of all relevant circumstances. The longstanding distinction between acquisitions of property for public use and regulations prohibiting private uses makes it inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a regulatory taking. Tahoe-Sierra, 535 U.S. at 323 , 122 S.Ct. 1465 . For the same reason, the court does not ask whether a physical appropriation advances a substantial government interest or whether it deprives the owner of all economically viable use, since the court does not apply precedent from the regulatory takings realm to the physical takings context. Id. In other words, Penn Central is inapplicable to permanent physical invasions. See Boise Cascade Corp. v. United States, 296 F.3d 1339, 1352-53 (Fed.Cir.2002).
With respect to regulatory takings, the threshold inquiry as to the takings issue is “to determine at the onset whether a particular claimed taking was ‘categorical’ or not.” Rith Energy, Inc. v. United States, 247 F.3d 1355, 1362 (Fed.Cir.2001). A property owner may show that the government has effectuated a “categorical taking” by demonstrating that a regulation has denied the property owner of “all economically beneficial or productive use of land.” Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 , 112 S.Ct. 2886 , 120 L.Ed.2d 798 (1992). If a categorical taking is not found, the inquiry does not end there, since in 1978, the Supreme Court set forth a three-part framework for analyzing whether a regulatory taking has occurred based on the ad hoe factual inquiry under Penn Central. See Penn Central, 438 U.S. at 124 , 98 S.Ct. 2646 .
Consequently, plaintiffs advance alternative theories to support their contention that the government took without compensation 220.85 acres of plaintiffs’ property when the Corps required that this acreage be set aside and maintained as wetlands “in perpetuity” as a condition for allowing plaintiffs to fill and impact other wetlands areas under the 1999 Permit. First, plaintiffs argue that a physical invasion of property has occurred under Loretto and its progeny. Second, plaintiffs argue that under a regulatory takings analysis, a categorical taking of 220.85 acres of plaintiffs’ property has occurred in that plaintiffs were denied all economically viable use of their property under Lucas . Third, if no categorical taking is found, plaintiffs maintain that a regulatory taking has occurred under the Penn Central ad hoe factual inquiry.
A. Cognizable Property Interest
In order for a party to assert a claim for a compensable taking against the government under the Fifth Amendment, the party asserting such a claim must have a cogniza *245 ble property interest in property sufficient enough to assert a cause of action. Wyatt v. United States, 271 F.3d 1090, 1096 (Fed.Cir. 2001) (cognizable property interest is a requirement for asserting an action for a compensable taking under the Fifth Amendment), ce rt. denied, 535 U.S. 1077 , 122 S.Ct. 1960 , 152 L.Ed.2d 1021 (2002).
All real estate property interests are cognizable under the Fifth Amendment. See Cienega Gardens, 331 F.3d at 1329 . (stating that “ ‘[e]very sort of [real property] interest the citizen may possess’ counts as a property interest under the Fifth Amendment”) (quoting United States v. Gen. Motors Corp., 323 U.S. 373, 378 , 65 S.Ct. 357 , 89 L.Ed. 311 (1945)); cf. Forest Props., Inc. v. United States, 39 Fed.Cl. 56, 68-70 (1997) (finding property interest in right to exercise contract). A plaintiff is disqualified from claiming a Fifth Amendment taking only if he or she has no “valid property interest,” Wyatt, 271 F.3d at 1096 , or if he or she is “[w]ithout undisputed ownership” of the property at the time of the takings. Cavin v. United States, 956 F.2d 1131, 1134 (Fed.Cir.1992).
There is no question that fee simple ownership of real property constitutes a cognizable property interest. Accordingly, the court finds that plaintiffs’ ownership of the 220.85 acres of wetlands claimed to have been taken by virtue of the 1999 Permit and the Deed of Restrictions constitutes a sufficient cognizable property interest for plaintiffs to assert their claim.
The court at this point gives no credence to any potential argument that the transfer of the 220.85 acres of mitigation and preservation wetlands to the South Meadows Association in 1999 deprives plaintiffs of their cognizable property interest. First, defendant does not challenge plaintiffs’ property interest in the 220.85 acres of land claimed to have been taken. Second, the government acknowledges that the South Meadows Association is an entity in which all business park owners are members and are charged with the duty and responsibility to maintain all open space and common areas in the project. As a business park owner, Don Roger Norman maintains an ownership percentage in the association. In fact, Mr. Norman is president of the association. Accordingly, even if the government did wish to challenge plaintiffs’ property interest on account of plaintiffs’ transfer of ownership of the 220.85 acres of property to the South Meadows Association, such a challenge would fail on the basis of the retained ownership plaintiffs possess by virtue of their interest in the South Meadows Association.
B. Physical Taking
Plaintiffs argue that a permanent, physical occupation of their property occurred in that plaintiffs contend that they no longer have the right to exclude others from the 220.85 acres of land the Corps required be set aside for public use as mitigation wetlands, and because the Normans were required to transfer title to those acres to a non-profit property owners association under the conditions set forth in the 1999 Permit. Defendant counterargues that the Corps did not effectuate a physical taking of plaintiffs’ property, but rather, merely imposed restrictions on plaintiffs’ use of their land. These restrictions, the government contends, were devised by plaintiffs and their own attorneys, and plaintiffs made a voluntary decision to convey these 220.85 acres of land to South Meadows Association.
A physical intrusion by the government has long been considered to be a property restriction of an unusually serious character for the purposes of the Takings Clause. Loretto, 458 U.S. at 426 , 102 S.Ct. 3164 . Property rights in a physical thing have been described as the right to “possess, use and dispose of it.” Id. at 435 , 102 S.Ct. 3164 (citing United States v. Gen. Motors Corp., 323 U.S. 373, 378 , 65 S.Ct. 357 , 89 L.Ed. 311 (1945)). To the extent the government permanently occupies physical property, it effectively destroys each of these rights. 12 Id. *246 Thus, in order for the government to effectuate a physical taking of private property, there must be exclusive and permanent occupation by the government that destroys the owner’s right to possession, use and disposal of the property. Id.; see also Yee v. City of Escondido, 503 U.S. 519, 527 , 112 S.Ct. 1522 , 118 L.Ed.2d 153 (1992) (a physical taking of land occurs when the government itself occupies the property or requires the landowner to submit to physical occupation of its land whether by the government or a third party); Vaizburd v. United States, 384 F.3d 1278, 1283 (Fed.Cir.2004) (Corps’ deposit of sand on beaches constituted a physical taking of property, but, in that instance, damages were nominal). In other words, a physical taking “gives the government possession of the property, the right to admit and exclude others, and the right to use it for a public purpose.” Tahoe-Sierra, 535 U.S. at 325 n. 19, 122 S.Ct. 1465 . For example, the EPA’s building of pollution monitoring wells on land was a permanent, physical occupation of private property, constituting a taking under this traditional physical occupation theory. See Hendler v. United States, 952 F.2d 1364 (Fed.Cir.1991). In Hendler , the Federal Circuit noted:
[T]he concept of physical occupation does not require that in every instance the occupation be exclusive, or continuous and uninterrupted. The evidence before the court was that Government vehicles and equipment entered upon plaintiffs’ land from time to time, without permission, for purposes of installing and servicing the various wells. They remained on the land for whatever duration was necessary to conduct their activities, and then left, only to return again when the Government desired.
Id. at 1377 .
In Loretto , the Supreme Court recited the traditional rule that a permanent, physical occupation of property is a taking. 458 U.S. at 441 , 102 S.Ct. 3164 . The Loretto court did not, however, question the authority of whether the government had the power to impose appropriate restrictions upon the owner’s use of his property. Id. In this regard, the Supreme Court specifically differentiated between a physical invasion versus a regulatory encumbrance:
[O ]ur holding today in no way alters the analysis governing the State’s power to require landlords to comply with building codes and provide utility connections, mailboxes, smoke detectors, fire extinguishers, and the like in the common area of the building. So long as these regulations do not require the landlord to suffer physical occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry generally applicable to nonpossessory governmental activity.
Id. at 440 , 102 S.Ct. 3164 (citing Penn Central, 438 U.S. at 104 , 98 S.Ct. 2646 ). Thus, in the instance of a physical occupation of private property, the ad hoc inquiry of Penn Central does not apply. See id. at 432 , 102 S.Ct. 3164 (a permanent, physical invasion of property is a government action of such a unique character that it is a taking without regard to ad hoe factors that the court may consider under Penn Central’s regulatory takings analysis).
The Supreme Court identified an instructive distinction between a physical occupation versus regulatory imposition in Loretto which squarely applies here. The Loretto court referenced United States v. Pewee Coal, 341 U.S. 114 , 71 S.Ct. 670 , 95 L.Ed. 809 (1951), in which the Supreme Court unanimously held that the government’s seizure and direction of operations of a coal mine to prevent a national strike of coal miners constituted a taking. The Supreme Court reasoned that because there had been an “actual taking of possession and control,” the taking was as clear as if the government held full title and ownership. Id. at 116 , 71 S.Ct. 670 . In contrast, the Loretto court noted that in United States v. Cen. Eureka Mining Co., 357 U.S. 155 , 78 S.Ct. 1097 , 2 L.Ed.2d 1228 *247 (1958), the Supreme Court found no taking where the government had issued a wartime order requiring nonessential gold mines to cease operations for the purpose of conserving equipment and manpower for use in mines more essential to the war effort. The Central Eureka court reasoned that “the [government did not occupy, use or in any manner take physical possession of the gold mines or of the equipment connected with them.” Id. at 165-66 , 78 S.Ct. 1097 . The Supreme Court concluded that the temporary, though severe, restrictions on the use of mines was justified by the exigency of war. Id. at 168-69 , 78 S.Ct. 1097 .
In this instance, the parties stipulate that the combination of the 1999 Permit and Deed of Restrictions required plaintiffs to do the following with respect to the 220.85 acres of land at issue here: (1) record the formation of a Corps-approved funding mechanism for the long term maintenance of the mitigation and preserve areas; (2) record the Deed of Restrictions maintaining all preservation areas as wetland preserves and wildlife habitat in perpetuity; (3) convey title to the wetlands mitigation acres to a non-profit property owners association; (4) not develop the 220.85 acres, forbidding commercial, industrial, agricultural or residential developments, structures or buildings; and (5) not engage in any mowing, burning, dewatering, plowing or cultivation of the wetlands areas, nor engage in any leveling, grading or landscaping within the wetlands areas, nor destroy or remove any natural trees, shrubs or other vegetation that exists upon the wetlands areas. Plaintiffs argue that this combination of restrictions effectively kept plaintiffs from being able to take any action with their land. They maintain that these requirements essentially created a physical occupation of 220.85 acres of plaintiffs’ property by the government because the interference foreclosed any ability on plaintiffs’ part to exercise their bundle of property rights.
Despite the above restrictions, the court does not find that the government physically occupied 220.85 acres of plaintiffs’ property. Although in this instance, the Corps placed a permanent condition on plaintiffs’ 220.85 acres of land, by requiring that the wetlands be maintained as such “in perpetuity,” the government did not occupy or take physical possession of the lands. Instead, title to plaintiffs’ property was transferred from plaintiffs to the South Meadows Association, an entity which plaintiffs control, without property rights ever passing to the government. The term “permanent,” in the context of physical occupations, does not mean forever. Hendler, 952 F.2d at 1376 (recognizing that a permanent taking can be for a limited term and finding that the government’s building of pollution monitoring wells was a physical occupation since wells remained on the property for years and were buried 100 feet deep into plaintiffs land). Whether the taking is for an unexpired or limited term goes to the question of compensation, and not whether a taking has occurred. Id. Plaintiffs’ emphasis on the requirement that 220.85 acres of their property be maintained as wetlands “in perpetuity” does not lend any more weight to whether a physical taking has occurred here than if plaintiffs had been required to maintain their property as wetlands for a limited term. Plaintiffs confusingly focus on perpetuity language in the 1999 Permit as opposed to whether the government physically occupied the property in question.
It is time that while plaintiffs relinquished their right to control ingress and egress of 220.85 acres of their property, an important right in the bundle of property rights, it was not because the government exerted control over these areas or acted in a way that would indicate to the general public that the government maintained rights as property owners of this land. First, according to the testimony of Vince Griffith, engineering consultant to the Normans, there was no requirement that the mitigation and preservation areas on the property be conveyed to a third party. The requirement was only that a funding mechanism be in place, but not necessarily that property be conveyed to a third party. In fact, the 220.85 acres of wetlands were transferred to South Meadows Association because it was previously anticipated by plaintiffs that this was a “common and reliable means of ensuring the preservation” of the wetlands. Def.’s Ex. 249 at A-10 to A-ll. Second, the government was in no *248 better position than plaintiffs to control the ingress and egress of these 220.85 acres once title was conveyed to the South Meadows Association. The government did not acquire any property rights in the property as a result of the transfer. The government exercised no ownership or possession of the property. In its simplest terms, there is no evidence that the government physically controlled 220.85 acres of plaintiffs’ property.
This case is unlike Kaiser Aetna v. United States, 444 U.S. 164 , 100 S.Ct. 383 , 62 L.Ed.2d 332 (1979), where the Supreme Court found that the government’s forcing of a navigational servitude requiring public access to a pond created a physical taking. In Kaiser Aetna , the property owners formed a marina by dredging a shallow lagoon and a connecting outlet into contiguous navigable waters. An exclusive subdivision was then built around the marina. The lagoon had been private property before the development, and the property owners continued to deny access to the public after the development. The government claimed that the property owners were required to open the lagoon to members of the public who might choose to visit by boat, since it was now subject to a “navigational servitude.” The Supreme Court held that if the government wished to impose public use — even intermittent public use — of the lagoon upon the property owners, it was required to pay just compensation. There, the Supreme Court emphasized that the servitude took the landowner’s right to exclude, “one of the most essential sticks in the bundle of rights that are characterized as property” and that the imposition of the servitude would result in an actual physical invasion of the privately owned marina. Id. at 176 , 100 S.Ct. 383 . Thus, the Supreme Court reasoned, “even if the [gjovernment physically invades only an easement in property, it must nonetheless pay compensation.” Id. at 180 , 100 S.Ct. 383 .
In this instance, unlike in Kaiser Aetna , the Corps did not impose the physical invasion of plaintiffs’ property by the government or any other person or party. Nor was there a continued government presence on the property. Instead, the government simply restricted plaintiffs’ use of 220.85 acres of land in exchange for allowing plaintiffs to fill and impact other wetland areas on their property. These restrictions were negotiated by plaintiffs and the Corps and documented in the 1999 Permit. Mere restrictions on the use of property do not constitute a physical invasion under Loretto . For example, in Boise Cascade Corp. v. United States, 296 F.3d 1339, 1353 (2002), the Federal Circuit upheld this court’s determination that a physical taking of property did not occur when a property owner was prevented from excluding spotted owls from its property and was required to allow government agents to enter its property to conduct owl surveys. The Federal Circuit agreed with this court that because there was no continuous governmental presence at the site and the conditions imposed no additional burdens on the property beyond the temporary curtailment of logging inherent in the permitting process itself, that there had been no taking under Loretto. Id. at 1352 .
Likewise, this matter involves the conditions placed upon the issuance of a wetlands permit, which is a classic regulatory taking, and normally does not constitute a physical taking. See Tahoe-Sierra, 535 U.S. at 324 , 122 S.Ct. 1465 (land use regulations do not fall under the ambit of a “classic” taking where the government directly appropriates private property for its own use, but rather involves a regulatory interference with property rights arising from some public program); see also Forest Props., Inc. v. United States, 177 F.3d 1360, 1365 (Fed.Cir.1999) (denial of a Section 404 wetlands permit which merely prevented plaintiff from making particular use of a lake, namely, dredging and filling it and then developing it, is a classic regulatory takings claim); Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1175 (Fed.Cir.1994) (issue of whether Corps’ denial of a Section 404 permit, resulting in prohibition against construction on wetlands, “squarely raises a regulatory takings claim”).
Forest Properties, 177 F.3d at 1360 , illustrates this point. There, appellant contended that the Corps’ denial of plaintiffs request for a Section 404 permit created a physical taking. Forest Properties was a real estate development company which owned property *249 adjoining a lake and which had received a twenty-year option from a local water company to purchase lake-bottom land. Forest Properties applied to the Corps for a Section 404 permit to dredge and fill approximately nine acres of land adjoining the lake in conjunction with a residential subdivision that would contain waterfront lots and a marina. At the same time, Forest Properties exercised its option to purchase lake-bottom land from the water district in order to develop that property under the development plan, as well. Subsequently, however, the Corps denied the permit, concluding that the development project could not satisfy Section 404’s guidelines, mainly because Forest Properties had not rebutted the presumption that there were available less adverse alternatives. Id. at 1363 . Forest Properties proceeded with a revised development plan without seeking administrative or judicial review of the permit denial and then filed suit seeking compensation, arguing that the denial of the permit was a taking because it deprived appellant productive use of the lake-bottom land and would result in title to the lake-bottom land reverting to the water district.
The Federal Circuit affirmed this court’s finding that the denial of the Section 404 permit under the Clean Water Act constituted a regulatory, not a physical, taking. Id. at 1364 . Forest Properties argued unsuccessfully that the action was a physical taking because the net effect of the denial was the reversion to the water district of Forest Properties’ interest in the lake-bottom property, since the lake bottom would not be excavated and filled within three years after execution of the deed to the property. Id. at 1365 . However, the Federal Circuit found that this was attributable not to the government’s action, but to the prior contractual arrangement between plaintiff and the water district for such a reversion. The government itself had not required plaintiff to give up or submit to the physical occupation of the submerged land. Id. Because Forest Properties had yet to deed its interest in the lake-bottom property to the water district and continued to retain its title to the submerged land, the court found that no taking claim could arise until the deed transferred to the water district. Id. The court then utilized the three-factor Penn Central analysis to determine whether the Corps’ denial of the permit to dredge and fill the lake-bottom property was a regulatory taking. Id. at 1366.
Plaintiffs rely on Nollan v. California Coastal Commission, 483 U.S. 825 , 107 S.Ct. 3141 , 97 L.Ed.2d 677 (1987), to support their position that a physical taking has occurred in this instance. The Nollans owned a beachfront lot near a public park. The Nollans originally leased their property with an option to buy, conditioned on the promise to demolish the building residing on the property and replace it. In order to do so, the plaintiffs were required to obtain a coastal development permit from the California Coastal Commission. They submitted a permit application in which they proposed to demolish the existing structure and replace it with a three-bedroom house in keeping with the rest of the neighborhood. The Commission recommended that the permit be granted subject to the condition that they allow a public easement to pass across a portion of their property to ease public traffic from the park to a cove. The Nollans protested this imposition and the Commission overruled their objections. The Commission granted the permit subject to their recordation of a deed restriction granting the easement.
The Nollans filed a petition requesting that the Ventura County Superior Court invalidate the access condition. The request was granted and, on remand, the Commission held a public hearing. The Commission reaffirmed its imposition of the condition, finding that the new house would block the view of the ocean, thus contributing to the development of a “wall of residential structures.” Id. at 828 , 107 S.Ct. 3141 . The Commission also found that the effect of constructing the house would “burden the public’s ability to traverse to and along the shorefront.” Id. at 829 , 107 S.Ct. 3141 . Therefore, the Commission wanted to require the Nollans to offset that burden by providing traditional lateral access to the public beaches in the form of an easement across their property.
The Nollans filed a writ in California Superior Court. The Superior Court ruled in the *250 Nollans’ favor, finding that the imposition of the access condition violated the Takings Clause. However, the California Court of Appeals reversed the decision of the Superior Court. In particular, the Court of Appeals found that the imposition did not deprive the Nollans of all reasonable use of their property. See Nollan v. Cal. Coastal Comm’n, 177 Cal.App.3d 719 , 223 Cal.Rptr. 28 (1986). The Court of Appeals also found that so long as a project contributed to the need for public access, even if the project standing alone had not created the need for such access, and even if there was only an indirect relationship between the access exacted and the need to which the project contributed, imposition of an access condition on a development permit was sufficiently related to the burdens created by the project to be constitutional. Id. at 723-24 .
The Nollans appealed to the Supreme Court, arguing that conditioning the issuance of the building permit on the access requirement constituted a taking. The Supreme Court noted that if California had simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, there would have been a taking. Nollan, 483 U.S. at 830 , 107 S.Ct. 3141 . However, the distinction therein was that the easement was being required to be conveyed as a condition for issuing a land-use permit. The Supreme Court held that a permit condition that serves the same legitimate police-power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking. Id. at 836 , 107 S.Ct. 3141 . The Supreme Court stated that:
[I]f the Commission attached to the permit some condition that would have protected the public’s ability to see the beach notwithstanding construction of the new house — for example, a height limitation, a width restriction, or a ban on fences — so long as the Commission could have exercised its police power (as we have assumed it could) to forbid construction of the house altogether, imposition of the condition would also be constitutional. Moreover, ... the condition would be constitutional even if it consisted of the requirement that the Nollans provide a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere. Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission’s assumed power to forbid construction of the house in order to protect the public’s view of the beach, must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end.
Id. Based on this reasoning, the Supreme Court continued on to hold that if the nexus between the condition and the original purpose of the building restriction was lacking, then the restriction converts the purpose into something other than it was, that being, impermissibly obtaining an easement to serve some valid government purpose without compensation. The Supreme Court then stated that “unless the permit condition serves the same governmental purpose of the development ban, the building restriction is not a valid regulation, but ‘an out-and-out plan of extortion.’ ” Id. at 837 , 107 S.Ct. 3141 (citations omitted). The Supreme Court found such a nexus to be lacking and held that the Commission’s imposition of the permit condition could not be treated as an exercise of land-use power and reversed the California Court of Appeals’ decision. Id. at 839 , 107 S.Ct. 3141 . In particular, the Supreme Court stated that if California wanted an easement across the Nollans’ property, they must pay for it. Id. at 842 , 107 S.Ct. 3141 .
Albeit unclearly, plaintiffs rely on Nollan to support their position that a physical taking of 220.85 acres of land occurred by the requirement that such land be maintained as mitigation wetlands in exchange for receipt of the 1999 Permit to dredge, fill and develop other wetlands. In Nollan, when the California Coastal Commission required the Nollans to grant the public a right-of-access to the beach in exchange for receiving the requested building permit, the Nollan court *251 found such an imposition to be illegal under the Fifth Amendment by virtue of the fact that conditioning the permit on the acceptance of an easement across property, without a nexus to such condition, was no different than if the government had required an easement across the property outright. Id. at 837, 107 S.Ct. 3141 .
In the case at bar, plaintiffs argue that a similar situation exists with respect to the Normans and South Meadows. They argue that Nollan stands for the proposition that where individuals are given a permanent and continuous right to pass to and fro on private land by the government, it constitutes a categorical taking of private property, essentially equivalent to a physical invasion of property. However, the distinction between plaintiffs’ argument and Nollan is that Nollan specifically stands for the proposition that a building permit could not be conditioned on the allowance of an easement across private property when there is no nexus between the access requirement and the land-use regulation. Id. at 838-39, 107 S.Ct. 3141 . This distinction is important. The absence of a nexus between the harm caused and the condition imposed left the Commission in Nollan in the position of simply trying to obtain an easement through gimmickry.
In this instance, the same cannot be said. The issuance of the 1999 Permit, based on the requirement that plaintiffs set aside mitigation and preservation wetlands in exchange for the opportunity to fill and dredge other wetlands, epitomizes the connection that was lacking in Nollan. The public interest served by requiring the preservation of wetlands in exchange for the filling and dredging of other lands relates directly to the condition imposed. There is no disconnect. It is clear that the situation at bar is not a physical taking as enunciated by Nollan, but rather, fits within the framework of allegations which might support a classic regulatory takings claim.
Plaintiffs also erroneously rely on Mannatt v. United States, 48 Fed.Cl. 148 (2000), to support their position that a physical taking occurred. In Mannatt , plaintiffs claimed that the United States Bureau of Land Management improperly conducted a resurvey of their lands, resulting in a taking of their property by inverse condemnation. Plaintiffs owned land adjacent to an Indian reservation. A boundary dispute ensued when the individual in possession of the reservation lands moved the fence between plaintiffs’ property and the reservation. The Bureau of Land Management claimed that the area in dispute was public land of the United States held in trust for the reservation.
The court in Mannatt spent a significant amount of time discussing the propriety of the resurvey under the Bureau of Land Management’s regulations. Id. at 155 . “Although a survey, standing alone, does not affect title in real property, when the government improperly resurveys lands so as to enlarge its interest in the property, and then effectively takes the property, such resurvey plus the assertion of control of the property will constitute a taking by inverse condemnation.” Id. (citing Sioux Tribe of Indians of Lower Brule Reservation, S.D. v. United States, 161 Ct.Cl. 413 , 315 F.2d 378, 379 (1963)). The court held that the resurvey created a sufficient, direct and substantial involvement by the government so as to give rise to jurisdiction over plaintiffs’ takings claim, despite the fact that the initial invasion was perpetrated by an individual. Id. at 156.
Plaintiffs rely on Mannatt to support the proposition that when the government requires a landowner to give up property, based on a mistaken survey, a taking has occurred. However, plaintiffs’ interpretation of Mannatt is incorrect. The Mannatt opinion deals with whether there existed subject matter jurisdiction to entertain plaintiffs’ lawsuit. The court found that plaintiffs there had successfully plead a claim for a compensable taking, despite the fact that the resurvey was not a formal adjudication, since the resurvey was not unlawful, but rather merely improper. Id. at 154 . This, the court found, did not divest the court of its jurisdiction over plaintiffs’ claims. Id. By relying on Mannatt , plaintiffs here merely attempt to re-litigate their illegal exaction claim, which was properly disposed of by this court on April 17, 2003. See Norman, 56 Fed.Cl. at 265-67 .
*252 Accordingly, the court maintains its finding above that no physical taking has occurred in this matter. Plaintiffs have alleged a classic regulatory taking, which is analyzed in detail below.
C. Regulatory Taking
1. Categorical Taking
Having determined that there has been no physical taking in this matter, the court must now analyze whether a regulatory taking of plaintiffs’ 220.85 acres of property occurred when the Corps issued plaintiffs a Section 404 permit under the Clean Water Act to fill and impact wetlands in exchange for designating and maintaining as wetlands 220.85 acres of other lands “in perpetuity.” As stated previously, a regulatory taking of private property can be found either under the per se, categorical rules set forth in Lucas , or by applying the ad hoc factors outlined in Penn Central . Plaintiffs first argue that a per se, categorical taking of 220.85 acres of their property has occurred because plaintiffs were denied their right to use, or otherwise exercise their property rights in 100% of this acreage by virtue of the 1999 Permit and the Deed of Restrictions setting forth a multitude of restrictions.
In the regulatory takings context, the Supreme Court in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 , 112 S.Ct. 2886 , 120 L.Ed.2d 798 (1992), determined that there could exist a regulatory takings case where the Penn Central ad hoc framework would be inapplicable. A per se, categorical taking could be found if the regulation at issue left the property owners with absolutely no economically viable use of their property. Id. at 1017, 112 S.Ct. 2886 . The rationale behind such a finding is that when there exists a total deprivation of beneficial use, it is essentially the equivalent of a physical taking. Id.
Lucas endorsed and applied this categorical rule, finding that the property at issue there was rendered valueless when a statute enforcing a coastal-zone construction ban, created two years after Lucas had begun development of his beachfront property, thwarted Lucas’ ability to complete residential development. Id. at 1009 , 112 S.Ct. 2886 . Because the property at issue was obtained when such activity was permissible under relevant property and nuisance principles, the removal of all economically viable use of the land by the ban on coastal-zone construction effectuated a categorical taking. Id. at 1030-31 , 112 S.Ct. 2886 . The Supreme Court applied a categorical rule that required compensation, but the holding was specifically limited to “the extraordinary circumstance when no productive or economically beneficial use of land is permitted.” Id. at 1017 , 112 S.Ct. 2886 (emphasis in the original).
The emphasis on the word “no” in the text of Lucas was reiterated in a footnote explaining that the categorical rule would not apply if the diminution in value were 95% instead of 100%. Id. at 1019 n. 8, 112 S.Ct. 2886 . Anything less than a complete elimination of value, or a total loss, would require the kind of analysis applied in Penn Central. Id. In other words, to prove a “categorical” takings claim, a property owner must demonstrate that a regulatory action resulted in a “total wipeout” of economic value. See Palm Beach Isles Assocs. v. United States, 208 F.3d 1374, 1380 (Fed.Cir.2000), aff'd on reh’g, 231 F.3d 1354 (Fed.Cir.2000). If the regulation does not result in a 100% diminution in value, then the claim must be analyzed under the fact-specific factors set forth in Penn Central. See Tahoe-Sierra, 535 U.S. at 330 , 122 S.Ct. 1465 .
The test for determining whether there has been a categorical taking of property requires the court “to compare the value that has been taken from the property with the value that remains in the property.” Forest Props., 177 F.3d at 1365 (citing Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 497 , 107 S.Ct. 1232 , 94 L.Ed.2d 472 (1987)). One of the critical questions is determining how to define the unit of property for this assessment. See id. This has been referred to in a regulatory takings context as the “parcel as a whole” issue or the issue of determining what constitutes the “relevant parcel.” Determining accurately what constitutes the relevant parcel whose value was allegedly lost due to the imposition of a regulation is vital. Without *253 determining the extent of the property to be analyzed, an accurate calculation of the value lost in the property because of the taking could be jeopardized. The court in Penn Central recognized this danger, stating that in order to determine “whether a particular governmental action has effected a taking, the [cjourt must focus on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole ....” 438 U.S. at 130-31 , 98 S.Ct. 2646 .
Plaintiffs argue that the only area of land that should be included in the “relevant parcel” calculation is the 220.85 acres of lands that were required under the 1999 Permit and Deed of Restrictions to be maintained and designated as wetlands in exchange for allowing plaintiffs to fill and dredge other areas on the Residential and Commercial portions. Accordingly, plaintiffs argue that a prohibition of the right to exclude others from this 220.85 acres of property and the loss of the right to dredge and impact this property constitutes a 100% devaluation of this acreage.
There is no rigid formula for determining the appropriate parcel in regulatory takings cases. Tahoe-Sierra, 535 U.S. at 326 , 122 S.Ct. 1465 . Cases in the Federal Circuit and this court lend guidance in determining what should constitute the relevant parcel here. For example, in Forest Properties, appellant sought a permit to fill a portion of approximately nine acres of wetlands on a parcel, but was denied the permit. 177 F.3d at 1363 . The Federal Circuit, affirming the decision of this court, found that there was no taking because the rest of the parcel had value when one looked at the whole area to be developed, which was the entire sixty-two-acre parcel, including fifty-three acres of uplands purchased by plaintiff in 1988 and an additional 9.4 acres of adjacent lake-bottom wetlands that Forest Properties later acquired. The Federal Circuit agreed that the full sixty-two acres should be treated as the “relevant” parcel since the two parcels were “treated as a single integrated project” and found that the plaintiff intended to use the separate parcels as “one income-producing unit.” Id. at 1365 . In rejecting Forest Properties’ assertion that the parcels should be treated separately because they were acquired at different times and because the two segments were capable of separate development, the Federal Circuit emphasized that the trial court had “properly looked to the economic realities of the arrangements, which transcended these legalistic bright lines.” Id. at 1366 . This was the case even though while the permit was pending, a portion of the parcel had been sold off. The Federal Circuit found that because the parties had acquired the sixty-two acre parcel with the intent of developing it as an entire project, the wetlands themselves could not constitute the relevant parcel. Id. at 1365 . The scenario presented in Forest Properties mimics the facts herein. Though plaintiffs purchased the Residential and Commercial portions at different times, and despite the fact that plaintiffs had sold off part of the Residential portion to DDH prior to the date of the taking, the 2280-acre Development was to be developed as part of an overall single scheme.
In Tabb Lakes, Inc. v. United States, 26 Cl.Ct. 1334 (1992), aff'd, 10 F.3d 796 (Fed. Cir.1993), the Claims Court rejected plaintiffs attempt to sever its property into five distinct units in order to assert a categorical taking of three units. It also expressly rejected plaintiffs attempt to gerrymander the date of the alleged taking to exclude economic activity which occurred prior to and after the alleged taking period. Id. at 1356-57. The Claims Court specifically stated that “[a]llowing plaintiff to artificially segment the planning, acquisition, financing, development, and sales of lots within that Subdivision into but a fraction of the ‘whole’ cannot be supported ____” Id. at 1357. On appeal, the Federal Circuit noted that “[c]learly the quantum of land to be considered is not each individual lot containing wetlands or even the combined area of wetlands. If that were true, the Corps’ protection of wetlands via the permit system would, ipso facto, constitute a taking in every case where it exercises its statutory authority.” 10 F.3d at 802 . However, the Federal Circuit did not resolve the issue as to which area should be analyzed, relying on the Claims Court determination that an analysis of the economic im *254 pact of both parties’ proposals as to what constitutes the relevant parcel revealed that plaintiff maintained sizable economic use of both proposed relevant parcels regardless. Id.
In Walcek v. United States, 303 F.3d 1349 (Fed.Cir.2002), the Federal Circuit reaffirmed the parcel as a whole rule. There, plaintiffs owned 14.5 acres of real property which had been purchased in two transactions in 1971, shortly before the passage of the Clean Water Act in 1972. Plaintiffs purchased the land with the intent of developing it. At the time of the purchase, the property had been zoned for residential purposes. Additionally, somewhere between 4.5 and 5.2 acres of the property had been mapped as wetlands by the State of Delaware. In order to fill this area, the plaintiffs were required to seek approval under Delaware’s wetlands act. A third portion of the land was subject to Section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403 (2000). In 1972, shortly after plaintiffs had purchased the property, 13.2 acres of it became subject to regulation under Section 404 of the Clean Water Act as federally regulated wetlands. The Walceks were then required to obtain a Section 404 permit to fill and develop the protected wetlands. After an unsuccessful attempt to sell the property, the Walceks began filling and developing the land without obtaining the required federal and state permits. When the Corps became aware of these activities, it issued a cease and desist order, with which the Walceks eventually complied. In 1988, the Walceks applied for Section 404 permits to fill and develop their land, but were denied approval for their development plans by the Corps. The Corps proposed other alternatives, but the Walceks believed them to be economically unviable. The Walceks sued, alleging that a categorical taking had occurred because the denial of the Section 404 permits rendered their property 100% useless. After the Walceks filed their complaint, the Corps issued a Section 404 permit allowing the plaintiffs to fill 2.2 acres of wetlands, conditioned upon creating or restoring 4.4 acres of other wetlands. At trial, the Court of Federal Claims found that no categorical taking of plaintiffs’ land had occurred because the permit did not deny all economically beneficial or productive use of the land when it allowed 2.2 acres of the wetlands to be developed. Walcek v. United States, 49 Fed.Cl. 248, 271 (2001). Under the Penn Central analysis, the trial court concluded that the application of wetlands regulations via the issuance of a permit to fill 2.2 acres of wetlands effected no compensable taking. Id. at 272. Rather, the court noted, it merely caused a noncompensable diminution in value. Id.
On appeal, the Walceks argued that the relevant parcel to consider for the takings analysis was the eleven acres of wetlands the permit required the Walceks to leave undeveloped. The Walceks based their argument on Palazzolo , where the Supreme Court expressed some discomfort with the rule of regulatory takings that the extent of deprivation should be measured against the parcel as a whole. Walcek, 303 F.3d at 1355 (citing Palazzolo, 533 U.S. at 631-32 , 121 S.Ct. 2448 ). But the Walcek court recognized and noted that the Supreme Court in Palazzolo never actually departed from the “parcel as a whole” analysis. See id. at 1355. 13 This court will not venture to diverge from the parcel as a whole analysis either.
In Ciampitti v. United States, 22 Cl.Ct. 310, 318 (1991), the Claims Court listed the factors to be analyzed in determining the relevant parcel or parcel as a whole, and these factors are instructive to this court in making its relevant parcel determination. The factors are: (1) the degree of continuity, (2) the dates of acquisition, (3) the extent to which the parcel has been treated as a single unit, and (4) the extent to which protected lands increase the value of remaining lands. Id. In Ciampitti , the owner bought a series of lots in a set of purchases. Purchases 3 through 7 included lots wholly or partially within state and federal wetlands. Despite the existence of wetlands, plaintiff decided to *255 continue with his development operations. Consequently, the Corps issued a formal cease and desist order. Plaintiff then decided to apply for a Section 404 permit to maintain the existing unauthorized fill and to place fill in other areas. However, the Corps denied the permit and Ciampitti sued.
Of paramount importance for the Ciampitti court was defining the “parcel as a whole.” Id. at 318 . Ciampitti contended that the relevant parcel consisted of only those lots for which a federal permit was sought, comprising fourteen acres of federal wetlands. Id. at 319 . But the court determined that the parcel as a whole should include “not only those areas as to which dredge and fill permits were denied, but also those areas that had been successfully developed earlier.” Id. at 320 . The court reasoned that even though the lots within purchase 7 were not contiguous, the “parcel as a whole” had to include all of purchase 7, since all of the lots therein were treated as a single parcel for purposes of financing and ownership. Id. Ciampitti was forced to purchase and mortgage the land as a package. Id.; see also Cane Tenn., Inc. v. United States, 57 Fed.Cl. 115, 121-22 (2003) (analyzing the same factors for determining the relevant parcel and finding that plaintiff treated all tracts purchased as one entity since there was no separate financing for the different tracts and no plan to develop tracts independently).
Plaintiffs rely on Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed.Cir.1994), to support their argument that the relevant parcel in this matter is simply the 220.85 acres to be maintained and dedicated as wetlands under the 1999 Permit. In Loveladies, plaintiff owned a 250-acre parcel. Plaintiff developed 199 acres prior to the passage of the Clean Water Act and later applied for a permit to fill the remaining fifty acres (one acre had already been filled). Plaintiff was denied a Section 404 permit for developing the 12.5 acres of wetlands that existed on the area. After plaintiff sued, claiming a taking, the government claimed that the relevant parcel was the entire 250-acre tract, not the 12.5 acres that plaintiff claimed had been taken. However, the court agreed that the 199 acres already developed before the passage of the Clean Water Act should not be considered in the denominator for calculating whether a categorical taking had occurred and also that the 38.5 acres no longer owned by plaintiff (they had been transferred to the State of New Jersey in exchange for a New Jersey Department of Environmental Protection permit) were properly excluded from the relevant parcel determination. Id. at 1181-82 . The Federal Circuit stated that:
This is only logical since whatever substantial value that land had now belongs to the state and not to Loveladies. It would seem ungrateful in the extreme to require Loveladies to convey to the public the rights in the 38.5 acres in exchange for the right to develop 12.5 acres, and then to include the value of the grant as a charge against the givers.
Id. at 1181 . Thus, the only acres the Federal Circuit considered in determining whether a categorical taking had occurred were the 12.5 acres of wetlands, which was the area covered by the permit, since the remaining acreage was either already developed or was required by the state to remain as wetlands. Id. at 1182 .
Plaintiffs also rely on Palm Beach Isles Associates. v. United States, 208 F.3d 1374 (Fed.Cir.2000), in support of their position. There, a group of investors bought 311.7 acres of land in 1957. A road split the property into two parcels, one parcel constituting 261 acres of upland oceanfront property and the other parcel constituting 50.7 acres of submerged land and shoreline wetlands. When the plaintiffs were denied permits to fill the 50.7-acre parcel, they sued, asserting a taking. The Federal Circuit rejected the government’s argument that since the two parcels were purchased together, they must be treated as a single parcel for purposes of the takings suit. Id. at 1380-81 . The Federal Circuit found that plaintiffs never planned to develop the total 311.7 acres as a single unit. Development plans for 261 acres were separate and unconnected to the 50.7 acres of wetlands. The Federal Circuit reasoned that “[cjombining the two tracts for purposes of the regulatory takings analysis, simply because at one time they were under common ownership, or because one of the *256 tracts sold for a substantial price, cannot be justified.” Id. at 1381 . Like in Loveladies, in Palm Beach Isles, the 261-acre parcel was also bought and sold before the passage of the Clean Water Act. The Federal Circuit found that a categorical taking had occurred, because the relevant parcel, the 50.7 acres of wetlands, had lost 100% of its value when those wetlands could not be dredged and impacted. Id.
The court in Appolo Fuels, Inc. v. United States, however, distinguished the facts therein from Loveladies in the same manner that this court distinguishes the facts in this ease from Loveladies. 54 Fed.Cl. 717 (2002), aff'd, 381 F.3d 1338 (Fed.Cir.2004). Appolo Fuels engaged in the business of mining and selling coal. Consequently, it was subject to the Surface Mining Control and Reclamation Act, 30 U.S.C. §§ 1201-1328 (2000) (SMCRA), which required organizations to obtain a permit from the appropriate state regulatory authority before engaging in surface coal mining operations. Id. § 1256. In 1989, Appolo Fuels acquired certain mining rights and began mining under Lease 5A. Appolo Fuels applied for a permit with the local regulatory authority in Tennessee to mine 214 acres within the Yellow Creek watershed. Around that time, the City of Middlesboro and the National Parks Conservation Association filed a petition to have 50% of the watershed designated as unmineable. However, 100% of the area was designated as unsuitable for surface coal mining and operations.
Appolo Fuels obtained additional leases that granted mining rights both within and outside the petition area and then filed suit in this court alleging, inter alia, that a permanent regulatory taking of its coal mining interests had occurred. With respect to the relevant parcel issue, Appolo Fuels argued that the appropriate parcel for analysis consisted of the surface mineable coal reserves held by Appolo Fuels within the watershed. 54 Fed.Cl. at 714 . The government, on the other hand, argued that the relevant parcel should consist of all of Appolo Fuels’ coal interests — those in the petition area and those in the surrounding areas. Id. Appolo Fuels relied on Loveladies to argue in favor of its choice of denominator.
The Appolo Fuels court specifically noted that in Loveladies, the parcel had been partially developed prior to the regulatory scheme taking effect. Id. at 727 . “The relevant parcel in Loveladies coincided with the area covered by the permit only because the remainder of plaintiffs property was either developed before the imposition of the federal regulatory scheme or was required by the state to remain undeveloped wetlands.” Id. In Appolo Fuels, however, the court noted that there, Appolo Fuels acquired Lease 5A in 1986 and the other leases over a 10-year period. Id. SMCRA was passed in 1977, and, thus, the court was not presented with a Loveladies situation where the plaintiffs expectations were formed before the imposition of a regulatory framework. Id. Because plaintiff in Appolo Fuels had not presented evidence that it considered the petition area distinct from the other leaseholds, the court included in the relevant parcel determination all of Appolo Fuels’ leasehold interests acquired over the years, less those interests not subject to the petition, due to plaintiffs intent to mine the areas as part of one overall plan. Id. at 729-30 .
The distinction noted in Appolo Fuels regarding Loveladies (and, by extension, Palm Beach Isles) is applicable here as well. All the parcels purchased by the Normans and South Meadows were acquired after the enactment of the Clean Water Act. Thus, there is no basis to segment certain parcels of wetlands from the parcel as a whole calculation based on Loveladies and Palm Beach Isles. The reasoning is that, in those two cases, land was purchased before the regulatory scheme was enacted. Here, all parcels purchased by the Normans and South Meadows were acquired after the enactment of the Clean Water Act’s permitting process.
The timing of the implementation of the applicable regulatory scheme when calculating the relevant parcel has a great effect on the result of that calculation. This is demonstrated clearly in Deltona Corp. v. United States, 228 Ct.Cl. 476 , 657 F.2d 1184, 1192-93 (1981), cert. denied, 455 U.S. 1017 , 102 S.Ct. 1712 , 72 L.Ed.2d 135 (1982). There, plaintiff *257 purchased a 10,000-acre property that was divided into five construction or permit areas to be built consecutively, with each stage to take three to four years to complete. While partitioned, however, the community would be a thoroughly integrated, unified whole. Plaintiff sought permits to fill and dredge these areas. In 1964, plaintiff sought a permit to fill and dredge part of the property in the Marco Island area, which was granted by the Corps per Section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403 . In plaintiffs second construction area, Roberts Bay, plaintiff obtained a dredge and fill permit. However, for plaintiffs third, fourth and fifth construction areas, Collier Bay, Barfield Bay and Big Key, respectively, plaintiff became subject to the regulations for acquiring a permit under the newly enacted FWPCA and were denied Section 404 permits. The Court of Claims found that in 1964, when the regulatory jurisdiction of the Corps was limited to “navigable waters of the United States,” Deltona routinely was granted the permits for which it applied. However, by 1976, the scope of the Corps’ jurisdiction dramatically changed, extending to all “navigable waters” and the criteria for granting permits had stiffened. Deltona argued that it was deprived of all economically viable use of its land. The Court of Claims considered as part of the “parcel as a whole” not only those areas as to which dredge and fill permits had been denied, but also the areas for which permits had previously been issued for development. 657 F.2d at 1192 . The Court of Claims bypassed the question of what constituted the relevant parcel because, it reasoned, even if the court were only to consider the three areas for which permits were denied, while Deltona had been blocked from developing Barfield Bay and Big Key, it eventually obtained all the necessary clearances for Collier Bay. Thus, the Court of Claims concluded that Deltona had not been denied all economically viable use of the 10,000-acre property. Id. Deltona’s “remaining land uses are plentiful and its residual economic position very great. Reduced to its essentials, this case merely represents an instance of some diminution in value.” Id. at 1192-93.
The Normans and South Meadows argue that the only areas of land that should be included in the “relevant parcel” are the 220.85 acres of lands that were required under the 1999 Permit and Deed of Restrictions to be maintained and designated as wetlands in exchange for allowing plaintiffs to fill and dredge other areas on the Residential and Commercial portions. This is a natural argument for plaintiffs to make. The court said it best in Walcek, 49 Fed.Cl. at 259 , when it held the following with respect to determining the relevant parcel:
To the extent the property captured ... includes only wetlands, the impact of the regulation in diminishing the value ... is more pronounced, and thus more indicative of a taking, than if the [property captured] were to include not only the wetlands but also the uplands and other property restricted by the regulation. Given this, it should come as little surprise that defendant argues that the [property in its entirety, constitutes [the] “parcel as a whole,” while plaintiffs assert that only the wetlands portion of the [property, for which the permit application was actually submitted, should be considered.
Id. If the “relevant parcel” constitutes only the 220.85 acres of lands set aside as mitigation and preservation wetlands, then, accordingly, plaintiffs argue, there has been a denial of 100% of the economic value of these 220.85 acres because plaintiffs are precluded from asserting any property rights on this acreage.
Plaintiffs’ argument is contradictory and too simplistic. For there to be a 100% diminution of value in this matter, then the relevant parcel would have to be the 220.85 acres claimed to have been taken. This cannot be. These acres are located on various pieces of land purchased by plaintiffs throughout the 2280-acre Development. Some of the 220.85 acres are on the Residential portion, while the remainder are on the Commercial portion. These 220.85 acres cannot be viewed in isolation considering that they were part of a broader permitting scheme for the Residential and Commercial portions. The three phases of the development are interconnecting. The water, sewer, and utility structures *258 were all designed as an integrated unit. It only makes sense that the relevant parcel constitutes not only the 220.85 acres claimed to have been taken, but also the larger areas on which these lands are located. To parse out the 220.85 acres of mitigation and preservation wetlands is to ignore the fact that the 1999 Permit was issued with respect to the entire 2280-acre area. In fact, plaintiffs’ application for the 1999 Permit was filed jointly with DDH, the adjoining property owner. The 1999 Permit allowed the filling and dredging of 61.56 acres of wetlands and 1.42 acres of waters of the United States on both the Commercial and Residential portions in exchange for maintaining mitigation and preservation wetlands throughout the Ranch area. In their application for the 1995 Permit, plaintiffs described their project as consisting of approximately 2288 total acres in aerial extent. The court cannot ignore the fact that the 1999 Permit was part of a broader development scheme encompassing Phases I, II and III of the 2280-acre Development.
Even assuming, arguendo, that the relevant parcel here is only the 220.85 acres claimed to have been taken, there has not been a loss of 100% of the land’s economic value. The evidence reflects that these 220.85 acres continue to serve as part of plaintiffs’ flood control and flood detention facilities with respect to the 2280-acre Development, and have been incorporated into open space requirements, parks, and biking paths. For example, the 2280-acre Development advertised that Phase III of the development would contain 390 acres of open space, trails programs and parks.
In addition, the area designated as the C-l detention basin serves as a detention basin and drainage facility for the 2280-acre Development (approximately sixty-five acres for the detention basin, plus another twenty-five acres of drainage). Trial testimony showed that the detention basin and drainage channels were necessary for the development of the area. The case law clearly states that if there is no destruction of all use, then there is no categorical taking. See Cooley v. United States, 324 F.3d 1297, 1305 (Fed.Cir.2003) (holding that a 98.8% decrease in economic value because a Section 404 wetland fill permit was denied does not constitute a categorical taking). The Federal Circuit specifically stated that “[tjaking away a property’s most beneficial use does not by itself constitute a compensable taking____[Tjhe destruction of one ‘strand’ of the bundle [of property rights] is not a taking. Only where Congress takes away every beneficial use does a categorical taking occur.” Maritrans Inc. v. United States, 342 F.3d 1344, 1354 (Fed.Cir.2003). Thus in Maritrans, the Federal Circuit found no categorical taking of property where a statute merely limited plaintiffs use of its single hull tank barges and did not necessarily deprive plaintiff of 100% of the beneficial uses of its barges, since plaintiff used and received income from its barges from its shipping operations and because it was able to recoup some of its original investment. Id. Here, it is clear that at least a portion of the 220.85 acres of land served a valuable and necessary benefit to the 2280-acre Development. Thus, no categorical taking has occurred with respect to plaintiffs’ proposed relevant parcel.
Plaintiffs alternatively argue that the relevant parcel is the original 470-acre Commercial portion that plaintiffs purchased in 1988. Plaintiffs argue that this is the case because had the Corps maintained its original 1988 wetlands determination, plaintiffs would never have needed to purchase the Residential portion and the other ranches (Flindt, Dotta, Peeetti, etc.) because their intent from the onset was only to develop the Commercial Portion. Plaintiffs state that they made these subsequent purchases in an attempt to mitigate the damage inflicted when the Corps retracted its 1988 delineation and invoked the stricter 1991 wetlands delineation. However, even if the relevant parcel at issue here is considered to be the original 470-acre Commercial portion purchased in 1988, it remains impossible for the court to find a 100% loss of all economically viable use of this 470-acre property, since after the issuance of the 1999 Permit (which allowed plaintiffs to fill 60.24 acres of the Commercial Portion), all but 11.54 acres of wetlands and approximately three acres of waters were developed by plaintiffs. The 470-acre parcel was over 90% developable after the issuance *259 of the 1999 Permit. Additionally, looking back to 1988, Southmark’s original master plan for development encompassed the seventeen acres of wetlands designated on the Commercial portion into the design of the development project, making them usable for landscaping and other non-distributing uses allowed under the CWA. This fact would further preclude a categorical taking of property since there was no denial of all economically viable use of the 470-aere parcel. Lucas, 505 U.S. at 1018 , 112 S.Ct. 2886 .
Even more importantly, plaintiffs’ argument that the relevant parcel could consist of only the 470-acre Commercial portion is illogical. The 220.85 acres of land claimed to have been taken he on both the 470-acre Commercial portion and the 1800-acre Residential portion purchased by plaintiffs in 1994. For plaintiffs to claim that the only parcel to be analyzed in terms of whether plaintiffs have suffered a decrease in economic value of their property is the 470-acre Commercial portion, when over 200 acres of the 220.85 acres claimed to have been taken physicahy he on the Residential portion, is baseless and completely illogical. If plaintiffs were only claiming a taking of the approximately eleven acres to be maintained as wetlands on the 470-acre Commercial portion, then perhaps the relevant parcel might be the 470-acre parcel acquired in 1988. But the court does not make that determination here, for plaintiffs are claiming a taking of 220.85 acres of property, which are mainly located on the 1800-acre Residential portion.
The question becomes, then, for the purposes of the Penn Central ad hoc analysis that fohows in this opinion, what is the relevant parcel? As stated above, plaintiffs argue that the relevant parcel at issue here is only the 470-acre Commercial portion. In support of this contention, plaintiffs introduced evidence at trial that had the 1988 delineation remained intact, plaintiffs never would have purchased neighboring properties, nor would they have revised the original Southmark Master Development Plan. This contention is supported by the fact that plaintiffs are commercial developers, not residential developers. Lance Gilman testified that the only reason that plaintiffs purchased the 1800-acre Residential portion from the Helms’ bankruptcy estate was because of the 1991 re-delineation. In essence, plaintiffs argue that the re-delineation rendered plaintiffs unable to develop their property according to the original development plan, and therefore, the only way for the development to be profitable was for plaintiffs to acquire additional land. Their argument went on to contend that this was particularly the ease since plaintiffs also feared that the bankrupt Helms portion would be bought by competitors who would not develop the property in conjunction with plaintiffs’ plans.
Contrary to plaintiffs’ argument, looking at the factors identified in Ciampitti , it is clear that the relevant parcel at issue here is not merely the 470-acre Commercial portion. The “degree of continuity,” “dates of acquisition,” “extent of which the parcel has been treated as a single unit,” and the “extent protected lands increase the value of remaining lands” show that all the lands encompassed in Phases I, II and III of plaintiffs’ development constitute the “parcel as a whole.” Ciampitti, 22 Cl.Ct. at 318 . While plaintiffs’ initial intentions in 1988 may have been limited to developing only a portion of Southmark’s master plan, with the Residential portion being developed by Robert Helms, from the beginning, plaintiffs and Robert Helms had a joint intention, as outlined in their Development Agreement, that the parcels be developed in a synchronized way. Don Roger Norman testified that plaintiffs and Mr. Helms were to develop their two properties in a non-conflicting manner. Lance Gilman testified that plaintiffs, acting through G & E Contractors, and Mr. Helms, acting through Prime Time Developers, agreed to non-competing uses of their properties. In fact, the Commercial portion was meant to be a part of one fully-functioning community with the Residential portion, as was evidenced in the original Southmark master development plan. The Development Agreement provided that the parties would construct offsite infrastructure necessary to maintain both the commercial and residential developments, such as roads, curbs, gutters and utilities. Norman, 38 Fed.Cl. at 420 . Furthermore, plaintiffs and Robert Helms sought zoning and master plan changes to *260 gether in 1989, soon after the purchase of the 470-acre Commercial portion by the plaintiffs.
At trial, Don Roger Norman and Lance Gilman both adamantly testified that plaintiffs would not have pursued purchase of the Residential portion in 1994, nor other ranches (the Dotta, Flindt, Pecetti, etc.), had the 1988 wetlands delineation remained in force. However, what plaintiffs would or would not have done in 1994, or before then, is speculation and conjecture, since five years before the date of the alleged taking, plaintiffs not only purchased the 1800-acre Residential portion from the bankruptcy estate of Robert Helms, plaintiffs also purchased other surrounding ranches years prior to the taking in question. In 1989, for example, plaintiffs acquired the Winkle parcel for access to the development. The Dotta, Flindt and Pecetti ranches were purchased in 1994. The Nevada Bell parcel was purchased in 1996.
The court reiterates that the alleged taking at issue here involves the 1999 Permit and whether the requirement that there be offsetting mitigation lands, in exchange for the filling of already existing wetlands, constituted a taking of plaintiffs’ property. Plaintiffs’ decision to purchase additional lands beyond the 470-acre Commercial portion was a business decision made by the plaintiffs in 1994. The government did not force plaintiffs to purchase these lands. Plaintiffs did so because, at that time, they recognized a financial opportunity created by Mr. Helms’ bankruptcy. Plaintiffs bought the Helms portion out of concern that other individuals might buy pieces of the property at low prices and put plaintiffs at a competitive disadvantage. As for the other, smaller ranches, those too were purchased with the intent that they be included in the development.
Plaintiffs acquired various parcels to continue them integrated, multiple use concept of the properties, creating a large, planned, mixed-use and self-contained community outside of Reno. In their Section 404 application for the 1995 Permit, plaintiffs described their project as the Double Diamond Development, consisting of approximately 2288 total acres in aerial extent. In their 1998 permit application, plaintiffs describe the property as a 2500-acre planned community and indicated that “South Meadows is composed of a number of historic ranches, the most significant of which is the 2100 acre Double Diamond Ranch.” Joint. Ex. 24 at 4. Further, plaintiffs’ Alternatives Analysis, which accompanied the 1998 permit application, indicated that it was necessary to have a large contiguous site with immediate freeway proximity, direct freeway interchange access, arterial street proximity to central Reno, and affordable housing.
Thus, based on the foregoing, the “relevant parcel” must include not only the 470-acre Commercial portion purchased in 1988 constituting Phase I of the development, but also the Winkle, Flindt, Pecetti, Dotta and Nevada Bell ranches (but excluding the Farahi ranch) constituting Phase II of the development, and, the 1800-acre Residential portion, purchased in 1994, constituting Phase III of the development. 14 It does not matter that the Commercial portion, Residential portion and other, smaller ranches that constitute the 2280-acre Development were purchased at separate times, nor that plaintiffs subsequently sold part of the Residential portion to DDH. See Forest Props., 177 F.3d at 1366 . The total acreage of these three phases of development is 2280.93 acres. Plaintiffs purchased these parcels for development of a planned and self-contained community and forged a connection between these parcels in their development scheme and permit applications to the City of Reno, and in the Section 404 permitting process, itself. 15
*261 Thus, having found that the relevant parcel constitutes the 2280-acre Development, the court also finds that there has been no deprivation of all economically viable use of the area by virtue of the alleged taking of 220.85 acres of wetlands. Further, assuming arguendo, that there was absolutely no use for the 220.85 acres of property required to be maintained as mitigation wetlands (ignoring the fact that portions of this area were used as water detention basins and for storm drainage), the percentage decrease in viable use would be less than 10%. This hardly constitutes a total deprivation of economically viable use under Lucas . Accordingly, the court finds that there has been no categorical taking of plaintiffs’ property.
2. Penn Central Factors
Having found that there has been no categorical taking of plaintiffs’ property, the court must weigh the three factors of the Penn Central ad hoe analysis to determine whether a regulatory taking has occurred in this matter under the specific facts presented. The Supreme Court, in the seminal case of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 , 98 S.Ct. 2646 , 57 L.Ed.2d 631 (1978), identified three factors to be weighed in order to determine whether a regulatory imposition could constitute a taking under the Fifth Amendment, thus requiring compensation on the part of the government for the taking of private property. In this analysis, the court must balance (1) the extent to which the regulation has interfered with the property owner’s reasonable investment-backed expectations; (2) the economic impact of the regulation on the claimant; and (3) the character of the governmental action at issue. Id. at 124 , 98 S.Ct. 2646 .
a. Reasonable Investment-Backed Expectations
For any regulatory takings claim to succeed, the claimant must show that the government’s regulatory restraint interfered with his reasonable investment-backed expectations in a manner that requires the government to compensate him. See Loveladies, 28 F.3d at 1179. The general principle is that when a private property owner purchases property in reliance on a state of affairs that included the challenged regulatory scheme, then the owner could be said to have no reliance interest, or to have assumed the risk of any economic loss. See id. at 1177 . “[I]t could be said that the market had already discounted for the restraint, so that a purchaser could not show a loss in his investment attributable to it.” Id.
“A ‘reasonable investment backed expectation’ must be more than a ‘unilateral expectation or an abstract need.’” Id. (citations omitted). “This factor ... incorporates an objective test — to support a claim for a regulatory taking, an investment-backed expectation must be ‘reasonable.’ ” Cienega Gardens v. United States, 331 F.3d 1319, 1346 (Fed.Cir.2003) (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005 , 104 S.Ct. 2862 , 81 L.Ed.2d 815 (1984)). The analysis is an “objective, but fact-specific inquiry into what, under all the circumstances, plaintiffs should have anticipated.” Id.
Prior to 2001, the general premise concerning reasonable investment-backed expectations was that a landowner who bought property with knowledge of a regulatory restraint was assumed to have no reasonable investment-backed expectations. For example, in Forest Properties, Inc. v. United States, 177 F.3d 1360, 1363 (Fed.Cir.1999), plaintiff purchased fifty-three acres of land with an option to acquire 9.4 acres of lake-bottom property. Forest Properties exercised its option and sought a Section 404 permit to dredge and fill the lake-bottom land. At the time, the Corps’ guidelines governing the issuance of Section 404 permits under the CWA had been in effect for a number of years. When Forest Properties’ permit request was denied, it claimed that a taking had occurred by virtue of the fact that the denial deprived Forest Properties of productive use of the lake-bottom property and that title to the lake-bottom land would revert back to the water district, from which *262 Forest Properties had purchased its option. Id. at 1364 .
The Federal Circuit affirmed this court’s ruling that Forest Properties did not have reasonable investment-backed expectations in the lake-bottom land. Id. at 1366 . When Forest Properties acquired the fifty-three-acre land and the 9.4-acre lake-bottom option, the Corps’ guidelines for issuing Section 404 permits had been in place for a number of years. Id. The guidelines made it clear that filling wetlands to construct housing was disfavored and that such a project was unlikely to be approved. Id. The Federal Circuit then reasoned that “[t]he investment-based expectation criterion ‘limits recovery to owners who can demonstrate that they bought their property in reliance on the nonexistence of the challenged regulation. One who buys with knowledge of a restraint assumes the risk of economic loss.’ ” Id. at 1367 (citing Creppel v. United States, 41 F.3d 627, 632 (Fed.Cir.1994)). Although Forest Properties hoped to obtain a permit and develop the land it acquired, the Federal Circuit noted that having a mere goal or hope is not enough to show that a property owner has a reasonable investment-backed expectation that might be protected by the Takings Clause. Id.
Similarly, in Good v. United States, 189 F.3d 1355 (Fed.Cir.1999), the Federal Circuit held that a property owner that takes property subject to an existing environmental regulation cannot reasonably expect that it will be allowed unfettered discretion in developing that property. Id. at 1363 . Good purchased a forty-acre tract of land containing thirty-two acres of wetlands. Good sought to obtain permits necessary to develop the area, including permits under the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403 , and a Section 404 permit under the CWA. Good proposed filling 7.4 acres of marsh and excavating another 5.4 acres of marsh. The Corps granted Good’s requests. However, Good was unable to overcome Florida’s Environmental Land and Water Management Act, Fla. Stat. chs. 186.001-.911, 380.012-12, which created a statutory regime for regulating development in the Florida Keys where Good’s property was located. To further complicate matters, the county in which the property was located adopted new regulations prohibiting the filling of salt marsh to more than 10% of the marsh on the parcel. Since Good’s plan involved dredging and filling 25% of the parcel’s salt marsh, Good’s plan would not have been allowed under the new regulations.
Good sued in state court, alleging that the state had taken his property without just compensation. In the meantime, Good’s federal permits to fill wetlands were set to expire. The Corps denied Good’s request to extend the time limits on the permits, but allowed Good to submit an application for a new permit, which he received in 1988. However, Good was not ultimately able to get county approval and, finally, Good submitted a new scaled-down plan to the Corps in 1990. Unfortunately, between the time the Corps issued Good’s 1988 permit and the time he applied for a permit in 1990, the marsh rabbit had been listed under the Endangered Species Act, 16 U.S.C. § 1533 (1996). The Corps was therefore required to consult with FWS to ensure that the new 1990 permit would not place the rabbit species in jeopardy. FWS recommen

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6653311. Public record. Not legal advice.