# Petition for Writ of Certiorari — Tull v. Virginia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0985%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 506 U.S. 866 ## Text IN THE Supreme Court of the United States OCTOBER TERM, 1992 EDWARD L. TULL and LOUISE A. TRL, his wife, Petitioners, V. COMMONWEALTH OF VIRGINIA and BOARD OF SUPERVISORS OF ACCOMACK COUNTY, VIRGINIA, Re spondents. Petition for a Writ of Certiorari to the Supreme Court of Virginia PETITION FOR A WRIT OF CERTIORARI RICHARD R. NAGEOTTE * JAMES SCOTT KREIN NAGEOTTE & KREIN 385 Garrisonville Road, Suite 201 Stafford, Virginia 22554 (703) 659-5050 Attorneys for Petitioners * Counsel of Record WILSON - EPes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 QUESTION PRESENTED Whether the Fifth Amendment applicable to the States through the Fourteenth Amendment allows denial of just compensation by including non-regulated upland prop- erty into the “relevant calculus”, when just compensa- tion would be required if the “parcel as a whole” were limited to the regulated wetlands and permit denial pro- hibited all economic viable use of the wetland property which must remain forever in its natural state. (i) il PARTIES The plaintiff-appellants below were individuals, Ed- ward L. Tull and Louis A. Tull, his wife. The defendant- appellees below were the Commonwealth of Virginia and the Board of Supervisors of Accomeck County, Virginia. TABLE OF CONTENTS QUESTION PRESENTED ........................ =i Sia Ret a in ia ictaneshbrinck Crssdnnshtcinigs\wwnnsnshaconnceeansencateahanns eo ee ES ie tp yt. nn IME MRMEILITT sasiecccanscnsscccuccsercessssansonsscnnanancsssonsnncese Pidy 30.) 0) yy 0), err sei ee ysis sani taadataneanticdiiesincneniie STATUTE AND REGULATIONS INVOLVED .......... oe yy i | ie et ey) oy | - err REASONS FOR GRANTING THE WRIT 1. Petitioners Were Entitled To Just Compensa- D6 TEE ST RRR aa a OO Re re ccatieehbernsaneebistewanuiniauinh APPENDIX A Decision of the Supreme Court of Virginia ........... APPENDIX B Final Decree of the Circuit Court of Accomack County ice SON EO ORT Ee) ot TOL reer EET ; Circuit Court of Accomack County’s Findings and Legal Conclusions from the Bench ......................... APPENDIX C Denial of Petition for Rehearing April 17, 1992... Petition for Rehearing ..............................-... Danas Ee APPENDIX D Bill of Complaint Filed in the Circuit Court of i os edit in Shbobpemneecetenninaesan aos APPENDIX E Constitutional Provisions, Statutes and Regula- IEE ee nO a a la 2a 4a 6a Ta 12a iv TABLE OF AUTHORITIES Cases: Allingham v. City of Seattle, 749 P.2d 160 (Wash. PI isckcovees Search A ane A eer INA Aim. Dredging Vv. State, Dept. of Environ. Pro., ee EE) EN node eae ee Sa American Sav. & Loan Assn V. County of Marin, 653 F.2d 364 (9th Cir. 1981) BE Pe een ED Aptos Seascape Corp. V. County of Santa Cruz, 188 Cal. Rptr. 191 (App. 1982) ...... Scacuiatickeke aan Bevan V. Brandon TP, 475 N.W.2d 37 (Mich. i nna OO PERE ORS Le BAOIR: TRAN Re ENR Burrows v. City of Keene, 432 A.2d 15 (N.H. EE ise oiececinc ais lpsnasicnighasaMivar hibictndens duane sactaasaucaen aes Carter Vv. South Carolina Coastal Council, 314 5.5.20 S27 (S.C. 1064)...................... Chase Manhattan Bank, N.A. V. State of Mow York, 479 N.Y.S. 2d 983 (A.D. 2 Dept. 1984) _~ Ciampetti v. United States, 22 Cl.Ct. 310 (199t) Claridge V. New Hampshire Wetlands Bd., 485 A.2d 287 (N.H. 1984) ...... SP dbl ETS OT re Corn v. City of Lauderdale Lakes, 771 F. Supp. Se | Gs, EE sxc ie ccccasceccecsse eens de St. Aubin v. Flacke, 492 N.Y.S. 2d 766 (A.D. Dept. 1985) .. " Deltona Corporation Vv. United States, 657 F.2d RE Ci cp Soeiconcs ocala betdetenttiasnn venieerioas Florida Rock Industries, Inc. v. United States, 8 Cl1.Ct. 160 (1985) .. a Gannett v. Lowell, 450 N.E.2d 1121 (Mass. App. 1983) . Georgia Outdoor Advertising \ Vv. . City of ‘Waynes- ville, 900 F.2d 783 (4th Cir. 1990) 000002... Grand Forks-Trail Water Users v. Hjelle, 413 N.W.2d 344 (N.D. 1987) Hudson Vv. Palmer, 468 U.S. 517 (1984) . Jentgen Vv. United ‘States. 657 F.2d 1210 (1981)... Jones V. Zoning Hearing Bd., 578 A.2d 1369 (Pa. Comwlth. 1990) lt ORR AERA ET EP Pe AES, OE PBT Kaiser Aetna v. United States, 444 U.S. 164 PIII sid atec pe rissapt cieteokicspinngs odie ce lntants cieaadone sa cascaee rani Page . 21, 24 25 20 . 22, 23 29, 30 . 26, 27 27 . 25, 26 20 18, 19 Vv TABLE OF AUTHORITIES—Continued Page Kaiser Dev. Co. Vv. County of Honolulu, 649 F. SI, TH IID aiivsncespancssacpsassassacpclccioetaees 21 Keystone Bituminous Coal Assn. V. DeBenedictis, 480 U.S. 470 (1987) . . passim Lewis Vv. New Castle County Ba. of Adj. 601 A. 2d RO CI vis dievecnsesscccdetincons tenn odesaanae 24 Loveladies Harbor Inc. v. United States, 15 Cl.Ct. ek OD yvekentticncec eee 27, 28 Lucas V. South Carolina Coastal Council, USS. (1992) No. 91-453, slip op. (June 29, |) | ee eee eM FOL ASU aren ea passim MacGibbon Vv. Board of Appeals of Duxbury, 255 Nee BET CREROS. TOTO) «.....cccccic-cecvcncecscasndedectemes 25 MacLeod v. Santa Clara County, 749 F.2d 541 4 Be A | Re ee ee ont ee aes 20 Moshow Vv. Com’r of Dept. of Env. Management, 427 N.B.2a TO (Binew. WOB1) .........-ceccscicecececceccuss 25 Naegele Outdoor Advertising, Inc. v. City of Durham, 844 F.2d 172 (4th Cir. 1988) .. .......... 19, 20 Penn Central Transp. Co. v. City of New York, te Ae Oe .: | en mm oC ws passim Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 RII D axceckkcpsercscbctacsssenassceeee 10, 11 Presbytery of Seattle v. King County, 787 P.2d OOF Craik See) oo eee ae 21, 24 Seawall Associates v. City of New York, 542 RA Bi eS A eee arena. ee 23 Spears V. Berle, 397 N.E.2d 1304 (1979) .........000......... 24 United States v. Riverside Bayview Homes, 474 Utes: Be CRD sake de ceceiecseccaeee eee 9 Western Energy Co. Vv. Genie Land Co., 737 P.2d GTO CHR, TOES vaio. lee 22 Williamson Planning Comm’n V. Hamilton Bank, S76 US. Fee fie cscs ee 3 Zilber Vv. Town of Moraga, 692 F.Supp. 1195 (N.D. ee | SR ee an ane eee rt mPa Ne mC 20 Constitution, Statutes and Regulations: Accomack County Wetlands Zoning Ordinances.... 5 Accomack County Subdivision Ordinances ... ......... vi TABLE OF AUTHORITIES—Continued Page Code of Virginia, 1950 as amended, § 15.1-550..___. 3 Code of Virginia, 1950 asamended, § 15.1-430(1).. 3 Code of Virginia, 1950 as amended, § 8.01-192...__. 3 Code of Virginia, 1950 as amended, § 2.1-2231 et DD. cccriciniiccvcnnatessittiasdescicccnustae ae 3 Code of Virginia, 1950 as amended, § 62.1-13.1 __.... 6 FETe I biscotti sical passim PDR RAR re ease BE ES passim Virginia Wetlands Statute, Code of Vi irginia 1950 as amended, § 61.1-18, ef seq. ..........2....cccccccecceusss 6 Virginia Land Subdivision and Development Stat- ute, Code of Virginia, 1950 as amended, §§ 15.1- GER, 06 QO. sncriiistssnmteeee 5 Miscellaneous: Rose, Mahon Reconstructed: Why the Takings Issue is Still a Muddle, 57 S.Cal. L.Rev. 561 (1984) IN THE Siupreuw Court of the Wuited States OCTOBER TERM, 1992 No, ———— EDWARD L. TULL and LOUISE A. TULL, his wife, ¥ Petitioners, COMMONWEALTH OF VIRGINIA and BOARD OF SUPERVISORS OF ACCOMACK COUNTY, VIRGINIA, Respondents. Petition for a Writ of Certiorari to the Supreme Court of Virginia PETITION FOR A WRIT OF CERTIORARI Petitioners Edward L. Tull and Louis A. Tull, his wife respectfully pray that a Writ of Certiorari issue to re- view the judgment and opinion of the Supreme Court of Virginia entered in this case. OPINIONS BELOW The opinion of the Supreme Court of Virginia finding no error and refusing the Petition for Appeal is unre- ported and appears at Appendix (“App.”) la. The Final Decree of the Circuit Court of Accomack County, Vir- ginia is unreported and appears at App. 2a. The findings of fact and conclusions of law of the Circuit Court of Accomack County, Virginia appear at App. 4a. 2 JURISDICTION The judgment of the Supreme Court of Virginia was entered on March 3, 1992. App. la. A timely-filed peti- tion for rehearing (App. 7a! was denied on April 17, 1992. App. 6a. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257. ‘ STATUTES AND REGULATIONS INVOLVED The Fifth Amendment, Fourteenth Amendment and relevant provisions of the Virginia Wetlands Statute, Code of Virginia § 62.1-13.1 et seqg., Aeccomack County Wetlands Zoning Ordinance, Virginia Land Subdivision and Development Statute, Code of Virginia § 15.1-465 et seq. and the Accomack County Subdivision Ordinance are reprinted at App. 25a. STATEMENT OF THE CASE The Supreme Court of Virignia has refused a Peti- tion for Appeal finding no error, notwithstanding that the denial of a permit necessary to use seven residential lots and a commercial parcel, resulted in a loss of all viable economic use of that private property and it must forever remain in its natural state, to further the policy of the State of Virginia and Accomack County to pre- seyve wetlands for the public’s use and benefit. Ocean Breeze Mobil Home Sites Subdivision Section “D” (“Ocean Breeze Subdivision”) was approved by Ac- comack County and recorded in compliance with the Ac- comack County Zoning and Subdivision Ordinances on January 4, 1985. Stipulations No. 9 and No. 11. Over two and a half years later, the Accomack County Wet- lands Board (‘Wetlands Board”) on September 10, 1987 denied Petitioners, Edward L. Tull and Louise A. Tull (“Tulls’”) a permit that was needed to fill wetlands to use 7 mobile home lots, a commercial parcel and adja- cent roads in Ocean Breeze Subdivision. The stated pur- pose of the permit denial was the need to protect and 3 preserve wetlands as a valuable public resource. Tr. 72- 73' The Tulls appealed to the Virginia Marine Resources Commission (“VMRC”) which on November 5, 1987 af- firmed the permit denial of the Wetlands Board. Stipu- lations No. 12 and No. 13. Having exhausted their administrative remedies by appealing the Wetlands Board’s decision to the VMRC, the Tulls Nled their Claim for Compensation for the tak- ing of their property with the VMRC and Comptroller of the Commonwealth pursuant to the requirements of Va. Code § 8.01-192 and § 2.1-2231 et seq. Stipulation No. 15. On June 24, 1988 the Tulls’ claim was denied by the State of Virginia. Stipulation No. 16. The Tulls also petitioned the Accomack County, Board of Super- visors for compensation for the taking of their property pursuant to the requirements of Va. Code § 15.1-550. Stipulation No. 17. The Tulls’ claim for compensation was denied at the Board of Supervisors’ meeting on July 20, 1988 and the Tulls were notified of the denial on July 21, 1988." Stipulation No. 18. After denial of their claim for compensation by both the State of Virginia and Accomack County, the Tulls appealed the denial to the Circuit Court of Accomack County (“trial court”). After overruling Demurrers, Motions for Summary Judgment and Cross Motions for 1 The Transcript of Proceedings, in the trial court on June 27 and 28, 1991 are referred to herein as Tr. followed by the page number. 2 The Tulls have complied with this Court’s prerequisite for the Constitutional Claim made here. The Tulls have been denied just compensation for the taking of their property by Accomack County pursuant to Va. Code § 15.1-550 and by the Staite of Virginia pur- suant to Va. Code § 8.01-192 and Va. Code § 2.1-2231 ef seq. See, Hudson v. Palmer, 468 U.S. 517, 532 n.12 (1984) and Williamson Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 195 (1985) (Fifth Amendment claim is mature when state compensatory proce- dures are pursued and just compensation has been denied). See also, Lucas v. South Carolina Coastal Council, —— U.S. —— (1992) No. 91-453, June 29, 1992 (Blackmun, J. dissenting) slip op. at 8. 4 Summary Judgment, a trial was held on June 27 and 28, 1991. After hearing evidence and arguments of counsel the trial court stated its findings from the bench on June 28, 1991: “The question is did their depriving Mr. Tull of this permit deprive the landowners of all economic viable use of the property, and I think that’s the whole ques- tion of the case. As I say, to determine that, I think you've got to decide what is the property in question, or the parcel as a whole...’ App. 4a. The trial court rejected the State of Virginia and Acco- mack County’s argument that the “parcel as a whole” was the 43 acres originally conveyed to the Tulls and rejected the Tulls’ argument that the individual mobile home lots and commercial parcel, totaling approximately 2 acres, which was the only property subject to the juris- diction of the Wetlands Board and the requirement of a permit, was the “parcel as a whole’. The trial court stated that it is “. . . certainly reasonable to use the Ocean Breeze Section D, the approximately 12 acres that was platted as the parcel as a whole...” App. 5a. The trial court held, “I do not find that there has been any loss of economic viable use of the property because the permit was denied as to two acres. For that reason I do not think there has been a taking.” App. 5a. The Tulls appealed to the Supreme Court of Virginia which found no error in the trial court’s decision. App. la. The facts are straightforward and undisputed. On January 4, 1985 the Subdivision Agent of Accomack County approved the subdivision of 12 acres of an orig- inal 43 acres purchased by the Tulls on May 7, 1980 and August 2, 1985 for the price of $5,000 per acre. The approved Final Plat of Ocean Breeze Subdivision was recorded in the land records of Accomack County in Plat Book 28, Page 24. Stipulation No. 9. The Accomack County Subdivision Agent confirmed that the Subdivision Plat met all the requirements of the State Subdivision 5 Statute and Accomack County Subdivision Ordinance. See App. 3la and 46a. The lots in the subdivision are platted for mobile home lots and do not qualify for any other use under the Accomack Zoning and Subdivision Ordinances. Tr. 66-67. When the Tulls recorded the Subdivision Plat they were required to, and did, bond the completion of sewage facilities, water facilities, and roads pursuant to the requirements of Accomack County. Tr. 87. In reliance upon the Subdivision Plat and Bond the Tulls expended, in addition to the $60,000.00 in land costs, $10,598.50 for surveying and_ engineering, $42,169.73 to install central water, $64,234.65 to install central sewer, $26,085.00 to install electric service, and $102,210.00 to install roads. Exhibit “12”. See, App. 38a and 5la. Accomack County does not require that a permit to fill wetlands be obtained before subdivision approval. When the Subdivision Plat is recorded the individual lots are removed from the larger parcel and assessed individually.* Tr. 93-94. Individual lot assessment cards for the lots located in the wetlands, Lots 39D, 46D, 47D, 51D, 52D, 53D, 54D and the commercial parcel were prepared by the County Assessor. Tr. 94-97. The mobile home lots at issue here were initially assessed after recordation of the Subdivision Plat at $10,000 per lot and at time of trial were assessed at $12,000 per lot. Tr. 99. Wetlands in Accomack County are assessed between $60 to $100 per 3 The Virginia statute which controls the zoning and subdivision of land defines a subdivision at Va. Code § 15.1-430(1) as: “(1) ‘Subdivision’ unless otherwise defined in a local ordinance adopted pursuant to § 15.1-465, means the division of a parcel of land into three or more lots or parcels of less than five acres each for the purpose of transfer of ownership or building development, or, if a new street is involved in such division, any division of a parcel of land. The term includes resubdivision and, when appro- priate to the context, shall relate to the process of subdividing or to the land subdivided and solely for the purpose of recordation of any single division of and into two lots or parcels, a plat of such division shall be submitted for approval in accordance with § 15.1- 475.” See, App. 3la and 49a (emphasis added). 6 acre. Tr. 99-100. The Tulls have been taxed for the seven mobile home lots and commercial parcel that are the subject of the wetland permit denial, based upon the reassessment after recordation of the Subdivision Plat and have paid the taxes each year on this land. Tr. 112-114. Over two and half years later the Tulls applied to the Wetlands Board, to fill Lots 39D, 46D, 47D, 51D, 52D, 53D and 54D, the adjacent roads and commercial parcel. Tr. 67. The Tulls permit application was denied on September 10, 1987. Stipulation No. 11. The permit was denied to protect and preserve the wetlands on the Tulls’ private property as a valuable public resource in accordance with the explicit policy of the Virginia Wet- lands Act.* The permit denial was appealed to the 4 Va. Code § 62.1-13.1. Declaration of policy. The Commonwealth of Virginia hereby recognizes the unique character of the wetlands, an trreplaceable natural resource which, in its natural state, is essential to the ecological systems of the tidal rivers, bays and estuaries of the Commonwealth. This resource is essential for the production of marine and inland wildlife, waterfowl, finfish, shellfish and flora; is valuable as a protective barrier against floods, tidal storms and erosion of the shores and soil within the Commonwealth ; is important for the absorption of silt and of pollutants; and is important for recreational and aesthetic enjoyment of the people for the promotion of tourism, navigation and commerce. Continued destruction of Virginia’s coastal wetlands will greatly contribute to the pollution of the Commonwealth’s rivers, bays and estuaries; will diminish the abundance of Virginia’s marine and inland animals and waterfowl, finfish, shellfish and flora as sources of food, employ- ment and recreation for the people of Virginia; will increase costs and hazards associated with floods and tidal storms; and will ac- celerate erosion and the loss of lands productive to the economy and the well-being of our citizens. Therefore, in order to protect the public interest, promote the public health, safety and the economic and general welfare of the Commonwealth, and to protect public and private property, wildlife, marine fisheries and the natural environment, it is declared to be the public policy of this Commonwealth to preserve the wetlands and to prevent their despoliation and destruction and to accommodate 7 VMRC, pursuant to the appeal rights granted by the Ordinance and Statute. The VMRC on November 5, 1987 voted to uphold the decision of the Wetlands Board. Stipulations No. 12 and 18. It was conceded that with- out the permit to fill the seven mobile home lots, com- mercial parcel and adjacent roads, they could not be used. Commonwealth’s Motion and Memorandum for Summary Judgment, at 11. Mr. Eugene Mason was accepted by the trial court as an expert in the field of real estate appraisals. Tr. 34. Mr. Mason’s real estate appraisal for the seven mobile home lots and commercial property demonstrated that the property for which the permit was denied had a value of between $150,000 to $179,500 with the permit and a value of only $150 after the permit denial. Tr. 36 and Exhibit “14”. Based on this appraisal the prop- erty subject to jurisdiction of the Wetlands Board and VMRC was worth only .001 percent of its value, as a result of the denial of the permit to fill the property. After entry of the Final Decree by the trial court, (App. 2a) denying compensation the Tills timely filed , their Petition for Appeal to the Supreme Court of Vir- ginia. The Petition for Appeal asserted as error in the Final Decree both the State Constitutional Claims (Count I) (App. 18a) and the Federal Constitutional Claims (Count II). App. 22a. On March 3, 1992 the Virginia Supreme Court refused the Tulls’ Petition for Appeal being of the “. . . opinion there is no reversible error in the judgment complained of.” App. la. The Tulls timely filed Petition for Rehearing (App. 7a) was denied by the Supreme Court of Virginia on April 17, 1992. App. 6a. The Tulls’ Petition for Writ of Certiorari is based solely upon their Federal Constitutional Claims. necessary economic development in a manner consistent with wet- lands preservation. See, App. 25a and 28a (emphasis added). 8 REASONS FOR GRANTING THE WRIT This Court should grant certiorari to resolve the con- fusion in “takings” jurisprudence that has resulted since the Court pronounced the term “parcel as a whole” in Penn. Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). This important question of federal law should be settled by this Court, not erroneously by the Supreme Court of Virginia. The Supreme Court of Vir- ginia has decided this important federal question in con- flict with some of the decisions of other State Courts of last resort and some of the decisions of the United States Court’s of Appeal. This case also offers the opportunity to settle the question which could not be answered in Lucas v. South Carolina Coastal Council, Ut (1992) No. 91-453, slip op. (June 29, 1992). (“Lucas”) which z has produced inconsistent pronouncements by the Court” and resulted in inconsistent pronouncements in other courts which have been called upon to determine What property should be included in the “relevant calcu- 99 5 lus’’ to constitute the “parcel as a whole’. 5 See, Lucas slip op. at 11 n.7. “Regrettably, the rhetorical force of our “deprivation of all economically feasible use” rule is greater than its precision, since the rule does not make clear the “property interest” against which the loss of value is to be meas- ured. When, for example, a regulation requires a developer to leave 90° of a rural tract in its natural state, it is unclear whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner has suffered a mers diminution in value of the tract as a whole. (For an extreme-and,, we think unsupportable-view of the relevant calculus, see Penn Central Transportation Co. Vv. New York City, 42 N.Y. 2d 324, 335- 334, 366 N.E. 2d 1271, 1276-1277 (1977) aff'd. 438 U.S. 104 (1978), where the state court examined the diminution in a particular parcel’s value produced by a municipal ordinance in light of total value of the taking claimant’s other holdings in the vicinity.) Unsurprisingly, this uncertainty regarding the composition of the denominator in our “deprivation” fraction has produced inconsistent pronouncements by the Court. Compare, Pennsylvania Coal Co. v. 9 1. Petitioners Were Entitled To Just Compensation. The Supreme Court of Virginia has denied the Tulls the promise of this Court that “.. . when a permit is denied and the effect of denial is to prevent ‘economically viable’ use of the land in question, ... a taking has oc- curred.” United States v. Riverside Bayview Homes, 474 U.S. 121. 127 (1985) (“Riverside Bayview”) (empha- sis added). There is no dispute that the Tulls’ permit request was denied, that they cannot use the property sub- ject to that permit denial for any economically viable use and that this “private property” is, because of the permit denial, required to remain forever as vacant and unim- proved property to further the State’s policy of protection and preservation of wetlands as a “public resource”. See, Va. Code § 62.1-13.1, supra at n.4. The permit denial has converted the Tulls’ “private property” into “public property”. The question presented to this Court is whether “the land in question” referred to in Riverside Bayview, and referred to in other cases of this Court as the “parcel as a whole’, may constitutionally include both regulated and non-reculated property in the “relevant calculus”. See, supra at n.5. But for the inclusion of the Tulls’ non-reculated property into the “relevant calculus’, the Tulls fall squarely within this Court’s requirement of just compensation, stated by this Court as the “. . . second situation in which we have found categorical treatment appropriate is where regulation denies all economically beneficial or productive use of land.” Lucas, supra, slip op. at 10 (citations omitted). Mahon, 260 U.S. 393, 414 (1922) (law restricting subsurface extrac- tion of coal held to affect a taking), with Keystone Bituminous Coal Assn. V. DeBenedictis, 480 U.S. 470, 497-502 (1987) (nearly identica} law held not to effect a taking); see also id., at 515-520 (Rehnquist, C.J., dissenting) ; Rose, Mahon Reconstructed: Why the Takings Issue is Still a Muddle, 57 S.Cal. L.Rev. 561, 566-569 (1984). . .” (emphasis added). 10 The decision below is in error because the “relevant calculus” must be restricted to the seven mobile home lots and commercial parcel located upon the approximately two acres which was subject to the jurisdiction of the Wetlands Board and the requirement of a permit to fill, not, as the trial court held and the Supreme Court of Virginia affirmed, the entire 12 acres of the Ocean Breeze Subdivision. Because the 10 acres of upland property was not subject to the jurisdiction of the Wetland Statute and requirement of a permit, it could not be taken for public use without just compensation by the permit denial and is therefore excluded from the Fifth Amendments prohibi- tion and also from the “relevant calculus”. Any other result would make the just compensation requirement of the Fifth Amendment, applicable to the States by the Fourteenth Amendment, dependent upon the extent of a private property owner’s holdings. The posture of this case and the total deprivation of the use and value of the regulatcd property suffered by the Tulls present, we be- lieve, an opportunity for the Court to address this im- portant constitutional issue unfettered by the procedural concerns expressed in Lucas.® In the landmark case of Pennsylvania Coal Co. Vv. Mahon, 260 U.S. 98, 413 (1992), (“Pennsylvania Coal”), Justice Holmes observed that “. .. the statute is admitted to destroy previously existing rights of property and con- tract.” (emphasis added) The property right was the existing right to mine coal when the owner of the right ® See, Lucas, senra (Souter, J. abstaining), slip op. at 3. “While the issue of what constitutes total deprivation deserves the Court’s attention, as doés the relationship between nuisance abatement and such total deprivation, the Court should confront these matters directly. Because it can neither do so in this case, nor skip over those preliminary issues and deal independently with defenses to the Court’s categorical compensation rule, the Court should dismiss the instant writ and await an opportunity to face the total depriva- tion question squarely. Under these circumstances, I believe it proper for me to vote to dismiss the writ, despite the Court’s con- trary preference.” (citations omitted). 11 did not own the “surface estate” which had been con- veyed with a reservation of the right to mine the under- lving coal. As the Court stated, “It purports to abolish what is recognized in Pennsylvania as an estate in land, a very valuable estate, ...”. Id. at 414. While terms such as “relevant calculus”, “takings calculus”, “the land in question” and “parcel as a whole” are not found in Pennsylvania Coal the Court clearly was limiting its focus on only the regulated coal. See, Id. at 414, Acknowledging the accepted rule that “Government hardly could go on if, to some extent, values incident to property could not be diminished without paying for every such change in the general law” (Id. at 413), Justice Holmes correctly predicted the end result when that gen- eral rule is unrestricted.? Under Justice Holmes’ analy- sis. the Tulls’ case clearly requires an exercise of emi- nent domain and compensation. The Commonwealth of Virginia and Accomack County have completely denied the Tulls all use of all the property subject to their juris- diction. It cannot be seriously argued that without the ~ inclusion of nonregulated property into the “relevant cal- culus” for the trial court’s determination of the “parcel as a whole’, compensation would be required. The re- quirement of compensation was again affirmed by this Court in Lucas, but of course that case did not involve the combination of non-regulated property with regulated property, in the “relevant ealeulus’, to deny just com- pensation. However, this Court did in Lucas leave little doubt that when the State requires private property to be left in its natural state, for public benefit, compensa- tion is required.* 7“Obviously the implied limitation must have its limits or the contract and due process clauses are gone. One fact for considera- tion in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends on the particular facts.” Id. at 413. 8 Lucas, slip op. at 12-13. “On the other side of the balance, affirmatively supporting a compensation requirement, is the fact 12 Confusion as to what constitutes the ‘‘relevant calculus” was introduced in 1987, however, when the Court dis- cussed New York City’s Landmarks Preservation Law and held that a regulatory taking which required compensa- tion did not exist, when viewed in the context of the “narcel as a whole’. The Court rejected as untenable the Appellants’ submission that they “tay establish a ‘tak- ing’ simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development’. The “par- eel as a whole” in “taking” jurisprudence, was born in that regulations that leave the owner of land without economically beneficial or productive options for its use-typically, as here, by requiring land to be left substantially in its natural state-carry with them a heightened risk that private property is being pressed into some form of public service under the guise of mitigating seri- ous public harm. See, e.g., Annicelli v. South Kingstown, 463 A.2d 133, 140-141 (R.I. 1983) (prohibition on construction adjacent to beach justified on twin grounds of safety and “conservation of open space”); Morris County Land Improvement Co. v. Parsippany-Troy Hills Township, 40 N.J. 539, 552-553, 193 A.2d 232, 240 (1963) (prohibition on filling marshlands imposed in order to preserve region as water detention basin and create wildlife refuge). As Justice Brennan explained: “From the government’s point of view, the benefits flowing to the public from preservation of open space through regulation may be equally great as from creating a wildlife refuge through forma! condemnation or increasing electricity pro- duction through a dam project that floods private property.’’ San Diego Gas & Elec. Co., supra, at 652 (Brennan, J., dissenting). The many statutes on the books, both state and federal, that provide for the use of eminent domain to impose servitudes on private scenic lands preventing developmental uses, or to acquire such lands alto- gether, suggest the practical equivalence in this setting of negative regulation and appropriation.” °“On this record, we conclude that the application of New York City’s Landmarks Law has not effected a “taking” of appellants’ property. The restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable heneficial use of the landmark site but also afford annellants op- portunities further to enhance not only the Terminal site proper but also other properties.” Id. at 138 (emphasis added). os eeemeneineeniaaaaima timate 13 Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 130-131 (1978) (“Penn Central’”).” In Pen» Central, the “landmark site” was defined by statute. It was, “An improvement parcel or part thereof on which is situated a landmark and any abutting im- provement parcel or part thereof used as and constitutin« part of the premises on which the landmark is situated ” Td. at 111, n.10. (emphasis added). While the Court’s use of the term “parcel as a whole” in Penn Cen- tral was clearly limited to the city tax block designated as the landmark site and the individual sticks to the bundle of property rights which related solely to the land- mark site, numerous State and Federal courts have since this decision construed the Court’s pronouncement of the “parcel as a whole” to require the inclusion of non-regu- lated property with regulated property in the “relevant calculus”. Apparently overlooking the statutory defini- tion in Penn Central that only “any abutting improve- ment parcel or part thereof” that “is used as and consti- tuting part of the premises on which the landmark is situated”, many courts have felt compelled to include abutting, adjacent and contiguous non-regulated prop- erty into the “relevant calculus”. Notwithstanding that this Court never held or implied that other non-regulated property owned by Penn Cent ‘al could be included in the “narcel as a whole’’ to determine the “relevant calculus”, other courts have failed to appreciate either the limiting factors or the factual setting in which the “parcel as a whole” statement was made in Penn Central. The Court in Penn Central, did not include within the “parcel as a 10“ ‘Taking’ jurisprudence does not divide a single parcel into discreet segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has affected a taking, this Court focuses rather both on the character of the actions and on the nature and extent of the interference with rights in the parcel as a whole—here, the city tax block designated as the ‘landmark site’. Id. at 130-131. 14 Whole” the other eight properties owned by Penn Central in this area of midtown Manhattan," Confusion may have resulted in the Supreme Court of Virginia and other courts faced with determining the “relevant ecaleulis” because of the Court of Appeals conclusion in Penn Central “that the Landmark Law had not affected a denial of due process because: , . .(3) even if the Terminal proper could never operate at a rea- sonable profit, some of the income from Penn Central's ex- tensive real estate holdings in the area, which include hotels and office buildings, must realistically be imputed to the Terminal...” /d. at 121. This confusion also appears in the writing of the academie community as well.’ That issue, however, was never addressed by the "The Court only noted that Penn Central by reason of landmark designation had “. . . been denied the right to build above the Terminal, it is not literally accurate to say that they have been denied all use of even those pre-existing air rights. Their ability to use these rights has not been abrogated; they are made tran ferable to at least eight parcels in the vicinity of the Terminal. . .” Td. at 137. '-"“Even more troubling is the antecedent question of what prop erty is relevant in a takings discussion: how much of what? In Mahon, Holmes considered the relevant property to be the entire third estate retained by the Company in its deed, but lost to thi Company by operation of the Act. The resulting one hundred per- cent diminution no leftover use at all—is the epitome of a taking under a diminution in value test. * * x ¥ As Brandeis commented, the issue of relevant property is “rela- tive’. Indeed, in principle, nothing limits the relevant property to that described in the deed; the Court could have mea ured the diminution in value against all of the Company’s property. This erpansive reading of relevant property appeared recent'y in the New York Court of Appeals’ disposition of Penn Central Transpor- tation Co. v. City of New York. The court apparently calewlated the diminution in value caused by New York City’s landmark pro- tection ordinance not only against the total value of the restricted Grand Central Terminal Building, but also against the value of the 15 Court. The Court stated, “We need only address the question whether a ‘taking’ has occurred.” /d. at 122. The Court held there was not a taking because Penn Central continued to have economically viable use of its regulated property notwithstanding the air rights restric- tion.'’ On those facts, totally distinguishable from the Tulls’ case, the Court in Penn Central held that the case presented only a situation of diminution of fair market value of the terminal site, the regulated property which was the ‘parcel as a whole”. In the Tulls’ case, it must be assumed, because neither court provided any legal support for its decision, that the trial court and Supreme Court of Virginia misconstrued this Court’s “parcel as a whole” statement in Penn Central, The statement that, “ ‘Taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular seq- ment have been entirely abrogated” (Id. at 130) (em- phasis added), was directed toward the single stick of Penn Central’s bundle of property rights, in the regu- lated property, the air rights. The Court’s statement does not support the inclusion of non-regulated property with regulated property to form the “parcel as a whole”. The Court in Penn Central explicitly did not include other non- regulated properties owned by Penn Centra! into the “relevant calculus” to determine the “parcel as a whole’’." ouner's other properties in the vicinity.” tose, Mahon Recon- structed: Why the Takings Issue is Still a Muddle, 57 S.Cal. L.Rev. 561, 566-568 (1984), (emphasis udded) 13 Penn Central conceded that “... the parcel of land occupied by Grand Central Terminal must, in its present state, be regarded as capable of earning a reasonable return, and that the transferable development rights afforded Appellants by virtue of the Terminal’s designation as a landmark are valuable, even if not as valuable as the rights to construct above the Terminal. In Appellants view none of these factors derogate from their claim that New York City’s law has effected a ‘taking’.” Jd. at 129. 4“The Terminal is one of a number of properties owned hy appellant Penn Central in this area of midtown Manhattan. The 16 Unlike Penn Central, the denial of the fill permit to the Tulls denied them all economic viable use of seven platted mobile home lots and commercial parcel on two acres of their land. The Tulls were not denied the use of a discrete segment of these properties or only one stick of thei: bundle of rights. Unlike Penn Central no income producing improvements exist on the Tulls’ regulated property and the Tulls are provided no valuable trans- ferable development rights. Without the required fill permit all of the Tulls’ regulated property must remain in its natural state, forever encumbered by the total pro- hibition of use that resulted from permit denial. A total “servitude” was imposed upon the Tulls’ property by the permit denial. The Tulls are not denied the most bene- ficial use of the land with only a diminution in value as the Court found to exist as a result of the restriction of the development of the air rights in Penn Central. The Penn Central Court emphasized that it and similar cases of this Court were limited to facts presenting less than the total destruction of the value of the land subject to regulation.” The permit denial complained of by the Tulls is the total destruction of two acres of their land others include the Barclay, Biltmore, Commodore, Roosevelt, and Waldorf-Astoria Hotels, the Pan-American Building, and other office buildings along Park Avenue, and the Yale Club. At least cight of these are eligible to be recipients of developmental rights afforded the Terminal by virtue of landmark designation.” Jd. at 115 (emphasis added). 15 “These cases dispose of any contention that might be based on Pennsylvania Coal Co. v. Mahon, 260 US 393, 67 L Ed 322, 43 S. Ct. 158, 28 ALR 1321 (1922), that full use of air rights is so bound up with the investment-backed expectations of appellants that governmental deprivation of these rights invariably—i.e., ir- respective of the impact of the restriction on the value of the parcel as a whole-—constitutes a “taking”. Similarly, Welch, Goldblatt, and Gorieb illustrate the fallacy of appellants’ related contention that a “taking”? must be found to have occurred whenever the land-use restriction may be characterized as imposing a ‘servitude’ on the claimant’s parcel.” Jd. at 130 n.27. 17 having a value of more than $150,000, a result which this Court holds in Lucas requires compensation."® While the Tulls believe that they have suffered a compensable taking even under the majority holding in Penn Central, they have clearly suffered such a taking in the view of the dissent. The Tulls have over their ob- jection been denied all right to use their regulated prop- erty and are required to preserve this property in its natural condition, in perpetuity, at their own expense. See, Penn Central, 438 U.S. at 140. The Tulls’ property has been singled out for preservation without compensa- tion, just as were the buildings of New York City singled out for landmark preservation. See, Penn Central, 438 U.S. at 140. The Tulls, because they own wetlands are compelled by the State to dedicate these wetlands, to the public benefit without just compensation and therefore share disproportionately with their neighbors the bur- dens of Virginia’s wetland preservation policy. See, Penn Central, 488 U.S. at 140. The Tulls are required to pre- serve their private property for public benefit without just compensation disproportionately from other citizens of Virginia who filled their wetland property before en- actment of the Virginia Wetland Statute. The Fifth and Fourteenth Amendments have not changed, only Vir- ginia’s policy to preserve wetlands at the expense of the private property owner has changed. As the dissent noted in Penn Central, it is not relevant that the denial of the permit destroyed property rights not yet used by the Tulls,."7 16 Lucas, slip op. at 13. “We think, in short, that there are good reasons for our frequently expressed belief that when the owner of real property has been called upon to sacrifice all economically bene- ficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.” 7“Tt is, of course, irrelevant that appellees interfered with or destroyed property rights that Penn Central had not yet physically used. The Fifth Amendment must be applied with “reference to the uses for which the property is suitable, having regard to the exist- ing business or wants of the community, or such as may be reason- 18 The very evil predicted by the dissent in Penn Central, has been visited upon the Tulls. The Supreme Court of Virginia has sanctioned the denial of just compensation for the taking of all “economic viable use” of the Tulls’ regulated property because the Tulls can use and develop their non-regulated property ana thus receive what the trial court believed to be a reasonable return. In the view of the Supreme Court of Virginia the State may deny all economic viable use of any amount of regulated private property so long as the property owner can re- ceive a “reasonable return” from non-regulated property. The potential for abuse in such a distorted view of the just compensation requirement of the Fifth Amendment is readily apparent. As the dissent correctly predicted in Penn Central the conceptual and legal problems _pre- sented by a rule in which a court must define “reasonable return” and “the particular property unit that should be examined” allows easy expansion of the “relevant cal- culus” to avoid an otherwise compensable taking.' In Kaiser Aetna v. United States, 444 U.S. 164 (1979), decided after Penn Central, the Court did not include the adjacent development “of a marina style community of over 20,000 persons around the pond” into the “parcel as a whole” or as a factor in the “relevant calculus” to de- termine if the Corps of Engineers’ requirement of a publie right of access to the pond and the Hawaii Kai ably expected in the immediate future.” Jd. at 143 n.6 (citations omitted) ‘8 “Difficult conceptual and legal problems are posed by a rule that a taking only occurs where the property owner is denied all reasonable return on his property. Not only must the Court define “reasonable return” for a variety of types of property (farmlands, residential properties, commercial and industrial areas), but the Court must define the particular property unit that should be ex- amined. For example, in this case, if appellees are viewed as having restricted Penn Central’s use of its “air rights”, all return has been denied. See Pennsylvania Coal Co. v. Mahon, 260 US 393, 67 L Ed 322, 43 S Ct 158, 28 ALR 1321 (1922). The Court does little to resolve these questions in its opinion.” Jd. at 149 n.13. SE ail ve @ "19 Marina constituted a compensable taking. Jd. at 167. The Court focused on the regulated property, the pond and marina. Jd. at 168. The same concerns that were expressed in the Penn Central dissent were again expressed by the dissent in Keystone Coal Association v. DeBenedictis, 480 U.S. 470, (1987) (“Keystone Coal’). As the dissent pointed out, “Similarly, there is no need for further analysis where the government by regulation extinguishes the whole bundle of rights in the identifiable segment of property, for the effect of this action on the holder is indistin- guishable from the effect of a physical taking.” Jd. at 517. Nevertheless even in Keystone Coal, the inquiry was again limited to the regulated property, the 27 million tons of regulated coal that was required by, DER’s 50% rule, to remain in place. Jd. at 498-499. The majority in Keystone Coal Court did not incorporate into the “rele- vant calculus” non-regulated property to determine if a compensable taking resulted. The majority specifically stated in Keystone Coal that the “relevant calculus” does not go beyond the regulated property.’ As predicted by the dissent in Penn Central and Keystone Coal, confusion in the lower courts was inevitable. The Fourth Circuit Court of Appeals does not agree with the Supreme Court of Virginia’s view that non- regulated property is part of the “relevant calculus”. In Naegele Outdoor Advertising, Inc. v. City of Durham, 844 F.2d 172 (4th Cir. 1988), the Fourth Circuit care- fully analyzed this Court’s decisions in Penn Central and Keystone Coal and remanded for an evidentiary hearing on the taking issue to determine the “. . . appropriate unit of Naegele’s property. . .” Jd. at 176. The Fourth 19 “We do not suggest that the State may physically, appropriate relatively small amounts of private property for its own use without paying just compensation. The question here is whether there has been any taking at all when no coal has been physically appro- priated, and the regulatory program places a burden on the use of only a small fraction of the property that is subjected to regulation. Id. at 499 n.27 (emphasis added). 20 Circuit’s instructions to the district court were to formu- late the takings analysis based solely upon the regu- lated property.”” The Ninth Circuit Court of Appeals distinguishes Penn Central and similar cases because “the entire subject property was covered by a uniform restriction” and holds that it is important to determine if the regulations will be applied uniformly to two separate parcels of property. If not, the parcels should be treated as two separate par- cels rather than combined into a single “parcel as a whole”. American Sav. & Loan Assn v. County of Marin, 653 F.2d 364, 369-370 (9th Cir. 1981) However, the United States District Court for the Northern District of California believes that because of this Court’s holding in Keystone Coal, “it is doubtful that American Savings is still good law” because this Court “essentially rejected the American Savings court’s notion that segments of property may be analyzed separately if a ‘non-uniform regulation’ affects various segments differently”. Zilber Vv. Town of Moraga, 692 F.Supp. 1195, 1204 (N.D. Calif. 1988). In MacLeod v. Santa Clara County, 749 F.2d 541, 548- 549 (9th Cir. 1984}, cert. denied, 472 U.S. 1009 (1985), the court found no taking from the denial of a permit to timber a portion of the property, sought by the owner because he could not carry the expenses of the property with ranching which was permitted. The court used Penn Central to support its position that the owner 20". . on remand the district court can proceed directly to the taking claim determining first if it is premature. If mature, the legitimacy of the taking depends on whether the ordinance denies Naegele “economic viable use” of an appropriate unit of its prop- erty. See, Keystone, 107 S.Ct. at 1248-49. The appropriate unit is that one which is substantially affected by the ordinance. Its iden- tification depends largely upon the scope of Naegele’s sharing con- tracts. Jd. at 178. (emphasis added) See, also; Georgia Outdoor Advertising v. City of Waynesville, 900 F.2d 783, 789 (4th Cir. 1990). 21 could continue “its original intended uses’? without re- gard for the factual distinction that Penn Central was able to continue to use its property with a positive financial return. The Federal District Courts also have a different opin- ion from the Supreme Court of Virginia as to what property should be included in the “relevant calculus”. In Corn v. City of Lauderdale Lakes, 771 F.Supp. 1557, 1572 (S.D. Fla. 1991),- the district court refused to permit a property owner to combine a shopping center site and mini warehouse site on a 261 acre parcel be- cause, “The Penn Central Court, however, was discuss- ing laws limiting subsurface excavation and development of air rights, not adjacent, distinct portions of a 261-acre parcel.” (emphasis added). In Kaiser Dev. Co. V. County of Honolulu, 649 F.Supp. 926, 947-948 (D. Hawaii, 1986), the district court rejected an argument that the land owner “has already received enough money from the development” and refused to include other prop- erty owned and developed into the “parcel as a whole”. Confusion, and inconsistent application of the “parcel as a whole” doctrine to include or not include non-regu- lated property in the “relevant calculus” since Penn Cen- tral, has also resulted in the state courts. Some state court decisions are directly at odds with the Supreme Court of Virginia. In Burrows v. City of Keene, 482 A.2d 15 (N.H. 1981), the Supreme Court of New Hamp- shire after careful analysis of the leading takings cases including Penn Central held that a compensable taking resulted when the City placed 109 acres of the plaintiffs 124 acres into a “conservation zone’. In Allingham V. City of Seattle, 749 P.2d 160, 163-164 (Wash. 1988), later overruled in Presbytery of Seattle v. King County, 787 P.2d 907 (Wash. 1990) because of Penn Central and Keystone Coal, the Supreme Court of Washington, sitting en banc held a Greenbelt Ordinance which required 50% 22 to 70% of certain lots to be preserved in or returned to their natural state to be invalid as “an unconstitutional taking of private property without compensation” not- withstanding the City’s argument that “the remaining 30°% may be put to profitable use”. In Western Energy Co. v. Genie Land Co., 737 P.2d 478 (Mont. 1987), the Supreme Court of Montana considered the Court’s “par- cel as a whole” statement in Penn Central and acknowl- edged that, “The critical question then became how to define a segment of property for takings purposes.” /d. at 483. The Supreme Court of Montana limited its - inquiry to the regulated mineral rights “. . . at issue in this case, is destruction of Western’s entire bundle of rights in the minerals beneath the surface owned by Genie.” Jd. at 483. The Supreme Court of Montana re- jected the suggestion that the takings analysis should ex- tend beyond the land which was the subject of the statute or that the mineral rights were only one stick in the bundle of rights.” In Aptos Seascape Corp. v. County of Santa Cruz, 188 Cal. Rptr. 191 (App. 1982), the court refused to include all of Seascape’s property into the “parcel as a whole’. The 110 acres subject to regulation was only a part of the original 500 acres purchased and Seascape still owns approximately 200 acres of uplands and has developed and soid about 190 acres. 7d. at 198. The court noted that Penn Central was factually distinguishable because it “did not involve contiguous property for which differ- ent zoning designations were adopted’. Jd. at 198. The 21“Under Montana law, however, Western’s entire bundle of rights consists of its rights to all the minerals beneath certain sec- tions of land. These rights are not defined in terms of its various holdings in eastern Montana, but rather in terms of its rights to mine coal in the specific sections in question. Consequently, the Court’s determination in Keystone, that merely one strand of Peti- tioner’s rights had been taken is inapplicable here.” Jd. at 483. 23 court acknowledged the confusion that exists in the de- cisional law under the Fifth Amendment. In Seawall Associates v. City of New York, 542 N.E.2d 1059 (N.Y. 1989), the Court of Appeals of New York also distinguished Penn Central and Keystone Coal in striking down a municipal law establishing a five year moratorium on conversion, alteration and demolition of single-room occupancy housing and requiring the owners to restore all units to habitable condition and lease them at controlled rents for an indefinite time as a require- ment that the owners dedicate their property to a public purpose.** In de St. Aubin v. Flacke, 492 N.Y.S. 2d 766 (A.D. Dept 1985), the court held that a taking resulted from denial of permits to fill a tract of land divided into four 22 “Decisional law under the takings clause of the federal Con- stitution has been described as “hopelessly confused”, with lower courts differing widely in their analytical frameworks for resolving takings challenges. (Note, Developments-Zoning (1978) 91 Harv. L.Rev. 1427, 1464.) That confusion is particularly apparent in cases with facts similar to those at issue, where a property owner alleges that governmental action restricting the use- of a portion of his property constitutes a taking. Some courts consider the only ques- tion to be the effect of the regulations on the whole of the owner’s contiguous property. (See, e.g., Am. Dredging V. State, Dept. of Environ. Pro. (1979) 169 N.J.Super. 18, 404 A.2d 42; Multnomah County V. Howell (1972) 9 Or.App. 374, 496 P.2d 235, 238.) Other courts focus on the restricted acreage, but also consider whether developmental rights have been denied outright, or transferred else- where. (See, e.g., American Sav. & Loan Ass’n v. County of Marin (1981) 653 F.2d 364; Fifth Avenue Corp. v. Washington County, ete. (1978) 282 Or. 591, 581 P.2d 50.)” Zd. at 197. 23 “Finally, defendants’ efforts to uphold Local Law No. 9 miss a key feature of the law here and the one that distinguishes it from the Landmarks Law in Penn Central, the Subsidence Act in Key- stone. and the Eagle Protection Act in Andrus. Unlike the regula- tory actions in those cases, which simply limited the owners’ conduct, Local Law No. 9 not only prohibits conduct but affirmatively re- quires that the owners dedicate their properties to a public pur- pose.” ZJd. at 1070. : 24 paree!s which contained 22.2 acres of uplands and that the purchase of property with knowledge of restrictions such as zoning and wetland laws does not preclude a challenge to their validity. In Spears v. Perle, 397 N.E.2d 1304 (1979), the Court of Appeals of New York remanded for a hearing on the takings issue when the owner's two parcels of land contained regulated and non- regulated property. In that case a 51 acre parcel with 38 acres of wetlands and a 43 acre parcel with & acres of wetlands. In Lewis v. New Castle County Bd. of Adj., 601 A.2d 1048 (1989), the Superior Court of Dela- ware refused to treat two parcels which were “split zoned’ as a single parcel to deny the petitioners right to a variance. In some states, the Court’s Penn Central and Keystone Coal decisions are used as support for denial of just compensation and in the Supreme Court of Washington they were relied upon to support a complete reversal of the court’s prior position. In Presbytery of Seattle v. King County, 787 P.2d 907, 914-915 (Wash. 1990), the Supreme Court of Washington, sitting en bane held that no taking resulted when a portion of the 4.5 acres of property contained wetlands which could not be used. The court relied upon the decisions in Penn-Central and Key- stone Coal to overrule its prior decision in Allingham v. Seattle, 109 Wash. 2d 947, 749 P.2d 160 (1988). The court does not discuss the fact that only part, not all of the property, was regulated property.” “4“Witbh the exception of this court’s recent decision in Allingham Vv. Seattle, 109 Wash.2d 947, 749 P.2d 160 (1988), neither state no: federal law has divided property into smaller segments of a undivided parcel of regulated property to inquire whether a piece of it has been taken or whether a due process violation has occurred with regard to a piece of regulated property. Rather, we have consistently viewed a parcel of regulated property in its entirety. Federal case law has also specifically refused to focus its inquiry upon a given portion of a regulated property.” Jd. at 914-915. (emphasis added) 25 In Am. Dredging v. State, Dept. of Environ. Pro., 404 A.2d 42 (1979), the court relying on Penn Central re- fused to void an order denying use of an 80 acre section of property because it “comprises only 3% of plaintiffs entire tract” of 2,500 acres. In Carter v. South Carolina Coastal Council, 314 S.E.2d 327 (S.C. 1984), the court held that denial of a permit to fill 5.8 acres of marshland was not a taking because “[a]n owner of land has no absolute and unlimited right to change the essential nat- ural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others”. Jd. at 329. In Moshow v Com’r of Dept. of Env. Management, 427 N.E.2d 750 (Mass. 1981), the court relying upon Penn Central re- versed a finding by the lower court that a taking re- sulted when 55% of the property was a wetland which could not be used. Eleven years before that court in MacGibbon v. Board of Appeals of Duxbury, 255 N.E.2d 347 (Mass. 1970) held that “The preservation of pri- vately owned land in its natural, unspoiled state for the enjoyment and benefit of the public by preventing the owner from using it for any practical purpose” was not authorized. In Claridge v. New Hampshire Wetlands Ed., 485 A.2d 287 (N.H. 1984), the court in reliance on Penn Central held there was no compensable taking for denial of a fill permit necessary to use the property for a residence because, “a person who purchases land with notice of statutory impediments to the right to develop that land can justify few, if any, legitimate investment- backed expectations of development rights which rise to the level of constitutionally protected property rights. /d. at 291. Other state decisions hold that “separate parcels” should be combined to form the “parcel as a whole’. In Bevan v. Brandon TP, 475 N.W.2d 37, 42-43 (Mich. 1991), two separate but contiguous lots, each with its own tax description and purchased at different times. were held to be the “parcel as a whole” in reliance upon Penn Central. In Gannett v. Lowell, 450 N.E. 2d 1121, ee 26 1122 (Mass. App. 1983), the court combined two contig- uous parcels in different towns into the “parcel as a whole”. Because the remaining lands uses had value, the court denied compensation. In Grand Forks-Trail Water Users v. Hjelle, 418 N.W.2d 344, 347 (N.D. 1987), the court relied upon Penn Central to hold no taking oc- curred under a statute that prohibited construction of utility lines on private property within 100’ of the center line of a state highway. In Jones v. Zoning Hearing Bd., 578 A.2d 1369 (Pa. Comwlth. 1990), the court relied upon Penn Central to uphold the validity of a zoning ordinance that limited density to provide open space. Nowhere is the “parcel as a whole” and “relevant cal- culus confusion more apparent than in the Court of Claims. Citing to this Court’s “parcel as a whole” ref- erence in Penn Central the claims court in Deltona Corporation Vv. United States, 657 F.2d 1184 (1981) cert. denied, 455 U.S. 1017 (1982) (“Deltona’’) denied com- pensation to the property owner, sought after denial of a permit by the Corps of Engineers. Noting that the per- mits had been granted for two prior phases of the project and one of the three applied for, and that the two phases for which the permit was denied contained 111 acres of non-regulated upland property which had a substantial value the court denied compensation. The court held that ‘“.. this case merely presents an instance of some diminu- tion in value.” Jd. at 1192. At the same time, in Jentqen v. United States, 657 F.2d 1210 (1981), cert. denied 455 U.S. 1017 (1982) (“Jentgen’’) the claims court denied compensation to the property owner, sought after denial of a permit by the Corps of Engineers based upon the “parcel as a whole” reference in Penn Central. Id. at 1213. While the permit denial in Jentgen would have allowed use of 20 of 80 acres subject to the permit re- quirement and 20 additional acres did not require a per- mit, compensation was denied because, the market value of the property, “. . . post denial is still between $80,000 and $150,000: the latter figure being the amount plain- tiffs paid for the property in 1971.” /d. at 1213. The 27 denial of just compensation in Deltona and Jentgen was predicated upon the fact that both regulated wetlands and non-requlated uplands were combined in the permit applications which were denied. See, infra at n.25. That is not the situation in the Tulls’ case. The Tulls permit application was limited to the two acres of regulated wei- land property and did not include the 10 acres of upland property not subject to the Wetland Board’s jurisdiction. In 1985 Chief Judge Kozinski in Florida Rock Indus- tries, Inc. Vv. United States, 8 Cl.Ct. 160 (1985) held that a compensable taking resulted from the refusa! of the Corps of Engineers to grant a permit needed to mine 98 acres of Florida Rock’s property even though Florida Rock owned an additional 1,462 acres of property for which no permit had yet been requested or denied. The Federal Circuit reversed on other grounds, but refused to include in the “parcel as a whole” the 1,462 acres of property not yet subject to regulation or permit denial.” More to the point in Loveladies Harbor, Inc. v. United States, 15 Cl.Ct. 381, 391-393 (1988) appeal pending, No. 91-5050 (Fed.Cir., February 138, 1991) (“Loveladies Harbor’) Chief Judge Smith carefully analyzed this Court’s decision in Penn Central and determined that the “parcel as a whole’ did not include the 250 acres of the original purchase, only 57.4 acres of which was still owned by the plaintiff. /d. at 392. Next Judge Smith eliminated from the 57.4 acres, 38.5 acres from the “par- cel as a whole’ because the State of New Jersey had al- ready denied the permits necessary to fill this portion of 25 “Defendant says there was no taking because the 98 acres held taken are only a small part of a single tract of 1,560 acres, the rest not taken, and no restriction arising from the denial of the permit applies to them. Such a contention had dignity and was of decisive importance in the cases of Deltona, supra and Jentgen, supra, but there the Army engineers considered the entire tracts and deter- mined that portions thereof could be developed as proposed. Here the Army engineers considered only the 98 acres.” United States Vv. Florida Rock Industries, Inc., 791 F.2d 893, 904-905, cert. denied, 479 U.S. 1053 (1957). 28 the property. Judge Smith next eliminated from the re- maining 18.9 acres 6.4 acres which were “. . . not effected by the Army Corps of Engineers’ permit denial...” and are no longer contiguous to the 12.5 acres at issue. /d. at 393. Finally, Judge Smith held that the, “. . . ultimate amount of property to be considered part of the parcel as a whole in this case is, accordingly, the 12.5 acres at is- sue,” the property subject to regulation by the Corps of ngineers and for which the permit was denied, Jd. at 384. However, even Judge Smith’s careful analysis in Loveladics Harbor demonstrates uncertainty over whether or not to include non-regulated “adjacent properties” in the “relevant ecaleulus” even though in Penn Central non- regulated adjacent properties were not included in the “parcel as a whole.” See, Jd. at 393. Even after Judge Smith’s carefully reasoned analysis of the “parcel as a whole” in Loveladies Harbor and the Federal Circuit’s refusal to include the remaining 1,462 acres owned by Florida Rock Industries, but not subject to regulation, the claims court in Ciampetti v. United States, 22 Cl.Ct. 310 (1991) included non-regulated prop- erty in the “parcel as a whole”. While recognizing that this Court in Penn Central and Keystone Coal did not include non-regulated land in the “relevant calculus’, the court held that because Ciampetti treated both the regu- lated and non-regulated property as the “parcel as a whole” the court should also. The court conceded that “Admittedly in those cases [Penn Central and Keystone Coal] the Court was not directly dealing with a govern- mental contention that additional land ought to be in- cluded in the calculus.” Jd. at 318. In the Court of Claims the “parcel as a whole’ continues to be a ship without a rudder. The implications of the Supreme Court of Virginia’s decision below are enormous. We have found that in the fourteen years before Penn Central the term “parcel as a whole” was used 16 times and not all of these cases related to “takings”. In the fourteen years since Penn 29 Central the term “parcel as a whole” has been used 85 times. This represents more than a five fold increase in the number of decisions that have required a determina- tion of the “relevant calevlus” after this Court’s pro- nouncement of the term “parcel as a whole” in Penn Central. This dramatie increase in the number of cases and the differing results demonstrate that defining the “relevant calculus” in takings cases will be a constantly recurring one and that the decision below will only add support to the argument that just compensation is not required when the state denies all economic viable use of private property so long as the owner can receive what the court determines to be a reasonable rate of return on the non-regulated property. That the issue is likely to recur is ampl:’ illustrated by the many different results reached in the state and federal cases since Penn Central which have been cited in this Petition. The Virginia Supreme Court has now joined ranks with those courts who would allow the confusion created by the Court’s Penn Central and Keystone Coal decisions to expand the “relevant calculus” to capture in the state’s “regulatory web” all property, regulated or not, to deny just compensation which would otherwise clearly be re- quired by this Court’s decision in Lucas. The Fifth Amendment will continue to be construed to reach dif- ferent results in different states. Had the Tulls’ property been located in the State of Néw York they would have been compensated.*" 98 QE Since wetlands restrictions are far more stringent than zoning regulations—restricting development per se as opposed to restricting types of uses—the Legislature has provided the property owner with a remedy against an unconstitutional taking within the context of the regulatory scheme itself. Thus, if a permit is denied or the permit offered is more limited in scope than that sought, the owner may seek juidicial review of the administrative denial (ECL 25- 0404). This review proceeding is unique in that a determination sustaining the permit denial, as supported by substantial evidence, will then trigger a second determination in the same proceeding as to whether this developmental restriction constitutes an unconstitu- 30 We know that we need not argue to this Court the importance of the Fifth Amendment’s admonition that “. . nor shall private property be taken for public use, without just compensation” because the Court itself has emphasized this consistently through the years in cases too numerous to cite. We only add here that the instant case represents a perversion of justice that this Court should not allow to stand. States, including Virginia, should not be permitted to avoid the requirement of the Fifth Amendment that just compensation be paid when the state regulates out of existence all right to reasonably use private property with the expediency of diluting that right by including non-regulated property into the “rele- vant calculus’, under an erroneous claim that this Court has sanctioned such a result by its decisions in Penn Central and Keystone Coal. CONCLUSION For the reasons outlined above, certiorari should be granted and the judgment below reversed. Respectfully submitted, RICHARD R. NAGEOTTE * JAMES SCOTT KREIN NAGEOTTE & KREIN 385 Garrisonville Road, Suite 201 Stafford, Virginia 22554 (703) 659-5050 Attorneys for Petitioners * Counsel of Record tional taking without compensation (RCL 25-0404). This second determination will be made on the basis of a full evidentiary hear- ing and, if a taking is found, the commissioner will be directed, ot his option, to either grant the requested permit or institute cou- demnation proceedings (ECL 25-0404; ef. Spears vy. Berle, supra, p. 261, 422 N.Y.S.2d 636, 397 N.E.2d 1304).” Chase Manhattan Bank, N.A. Vv. State of New York, 479 N.Y.S.2d 983, 986-987 (A.D. 2 Dept. 1984). EAE FS Bee Gre tes. sein et OO ‘ Beret ab ial Alla 2 APPENDICES la APPENDIX A VIRGINIA: | Mar. 05, 1992] In the Supreme Court of Virginia held at the Supreme Court Building in the City of Richmond on Tuesday the 3rd day of March, 1992. Record No. 911891 Circuit Court No. 88CH128 EpWARD L. TULL, e¢ al., Appellants, against COMMONWEALTH OF VIRGINIA, et al., Appellees. From the Circuit Court of Accomack County Upon review of the record in this case and considera- tion of the argument submitted in support of and in opposition to the granting of an appeal, the Court is of opinion there is no reversible error in the judgment complained of. Accordingly, the Court refuses the peti- tion for appeal. A Copy, Teste: DAvip B. BEACH Clerk By: /s. |Illegible] Deputy Clerk 2a APPENDIX B VIRGINIA: IN THE CIRCUIT COURT OF ACCOMACK, COUNTY In Chancery No. 88-CH-128 EDWARD L. TULL and LOUISE A, TULL, Complainants, Vv. COMMONWEALTH OF VIRGINIA and COUNTY OF ACCOMACK, Defendants. FINAL DECREE This case was tried before the Court on June 27 and- 28, 1991. The Complainants were represented by their counsel, Richard R. Nageotte. Defendant Commonwealth of Virginia was represented by Pamela M. Reed and Frederick S. Fisher, Assistant Attorneys General, and Defendant Accomack County Board of Supervisors was represented by Bruce D. Jones, Jr., Accomack County Attorney. Evidence was presented and the case was argued. Upon consideration of all the evidence, arguments of counsel, the memoranda previously filed and for the rea- sons stated from the bench, the Court finds that the Wet- lands Act passed in 1972 advances-a legitimate state interest and that denial of the Tulls’ permit application by the Accomack County Wetlands Board which was affirmed by the Virginia Marine Resources Commission to fill ap- proximately 2 acres of wetlands in Ocean Breeze Mobile 3a Home Sites Subdivision, Section “D” did not deprive the Tulls of all economically viable use of their property, and that therefore there has been no taking by inverse con- demnation of the Tulls’ property. It is therefore ORDERED, ADJUDGED AND DECREED that this Court finds in favor of the Commonwealth of Virginia and the County of Accomack and grants final judgment to the Commonwealth of Virginia and the County of Ac- comack and this case should be and therefore is dis- missed. And it is FURTHER ORDERED, ADJUDGED AND _ DE- CREED that the Complainants having expressed their intention to appeal this Final Decree to the Virginia Su- preme Court and having requested this Court to fix the bond on appeal, the Court does in accordance with Code of Virginia 1950 as amended, § 8.01-676.1, fix the bond for costs on appeal in the amount of $500.00 in the form of an irrevocable letter of credit from the Farmers and Mer- chants Bank, Chincoteague, Virginia. And it is FURTHER ORDERED, ADJUDGED AND DE- CREED that this Decree being final, the Clerk shall place this file with the ended cases. Enter this 4th day of November, 1991. /s/ N. Wescott Jacob N. WESCOTT JACOB Judge Circuit Court of Accomack County 4a [342] VIRGINIA: IN THE CIRCUIT COURT OF ACCOMACK COUNTY In Chancery No. 88-CH-128 EDWARD L. TULL and LouIsg A. TULL, ™ Complainants, COMMONWEALTH OF VIRGINIA and COUNTY OF ACCOMACK, Defendants. TRANSCRIPT OF PROCEEDINGS June 28, 1991 RULING OF THE COURT THE COURT: Well, of course, there can be no ques- tion that the General Assembly passed this wetlands leg- islation in 1972 and it was passed to advance a legitimate state interest. There is no question that in this case the Accomack County Wetlands Board denied Mr. Tull’s ap- plication for a permit. The question is did their depriving Mr. Tull of this permit deprive the landowner of all economic viable use of the property, and I think that’s the whole question if [sic] the case. As I say, to determine that, I think you’ve got to decide what is the property in question, or the parcel as a whole as you [sic] Supreme Court phrased it and you phrased it here. To me, it is just absolutely [343] ridiculous to say that the two acres of wetlands as shown on a piat and the County used that plat in assessing the property and the _ 5a assessed each lot individually, so each lot becomes a par- cel as a whole. That to me is absolutely ridiculous. The County and Commonwealth argue that the parcel as a whole IS the 438 acres that Mr. Tull purchased. Mr. Nageotte argues, and I think there is certainly some merit to that argument. There’s been no evidence here to show what wetlands there were on this 43 acres, but I think it is certainly reasonable to use the Ocean Breeze Section D, the approximately 12 acres that was platted . as the parcel as a whole, and certainly Mr. Tull’s sold for a very considerable price. I think one was $16,000 and one was two at $20,000 after the permit was denied— lots from this parcel. It certainly cannot be argued that he was denied all economic viable use of the property. I never have thought probably made too much differ- ence whether he made a profit or a loss on this entire property, but I again think it is rather ridiculous to use all of the litigation [844] expenses that were involved by Mr. Tull in the federal district court as expenses on this property for the purpose of showing whether it was a profit or loss. If you don’t use those figure, of course, there is no question Mr. Tull made a substantial recov- ery from his investment, a substantial profit from the sale of the lots in Ocean Breeze Section D. I do not find that there has been any loss of economic viable use of the property because the permit was denied as to two acres. For that reason I do not think there has been a taking. I would ask Mr. Jones and the Attorney General to pre- pare a decree in accordance with that ruling and have Mr. Nageotte endorse same and present it to me for signature. MR. JONES: Ail right, Your Honor. MS. REED: Thank you, Your Honor. (Trial concluded at 12:48 p.m.) 6a APPENDIX C VIRGINIA: In the Supreme Court of Virginia held at the Supreme Court Building in the City of Richmond, on Friday the 17th day of April, 1992. Record No. 911891 Circuit Court No. 88CH128 EDWARD L. TULL, et al., Appeliants, against COMMONWEALTH OF VIRGINIA, et al., Appellees. Upon a Petition for Rehearing On consideration of the petition of the appellants to set aside the judgment rendered herein on the 8rd day of March, 1992 and grant a rehearing thereof, the prayer of the said petition is denied. A Copy, Teste: /s/ [Illegible] Clerk ee i Ta VIRGINIA: IN THE SUPREME COURT OF RICHMOND CITY OF RICHMOND Record No. 911891 Circuit Court No. 88CH128 EDWARD L. TULL, et al., Appellants Vv. COMMONWEALTH OF VIRGINIA, et al., Appellees PETITION FOR REHEARING COME NOW your Appellants, Edward L. Tull and Louise A. Tull, by Counsel, pursuant to Rule 5:20 of the Rules of the Supreme Court of Virginia and Petition this Court for Rehearing upon the following grounds: 1. This Court entered its Order on March 3, 1992 re- fusing Appellants’ Petition for Appeal. This Petition for Rehearing is timely filed and served as required by Rule 5:20. 2. Appellants’ Bill of Complaint filed in the Circuit Court of Accomack County appealed the refusal of the Commonwealth of Virginia and Accomack County to pay just compensation for seven mobile home lots and a com- mercial parcel the Tull’s asserted was taken by_ the Commonwealth of Virginia and Accomack County as a result of refusal to grant a permit to fill wetlands. De- nial of the necessary permit left Appellants with seven mobile home lots and a commercial parcel of land, which the Commonwealth of Virginia and Accomack County 8a conceded had no use and must remain as vacant lots because of the denial of the permit to fill wetlands. Ap- pellants’ state constitutional claims pursuant to Article I, Section 11 of the Virginia Constitution were contained in Count I of the Bill of Complaint and Appellants’ fed- eral constitutional claims pursuant to the Fifth Amend- ment of the Constitution of the United States applicable to the states through the Fourteenth Amendment were contained in Count II of the Bill of Complaint. 3. The Circuit Court of Accomack County denied Ap- pellants’ claims for compensation under both Article I, Section 11 of the Virginia Constitution (Count I of the Bill of Complaint) and the Fifth Amendment of the Con- stitution of the United States applicable to the states through the Fourteenth Amendment of the Constitution of the United States (Count II of the Bill of Complaint) upon the grounds that the relevant “parcel as a whole” for purposes of the takings analysis was the entire twelve acres subdivided into Ocean Breeze Mobile Home Sites, Section “D” and not the seven mobile home lots and commercial parcel located in the wetlands portion of the subdivision for which the permit was denied, which is conceded to be the only property subject to the re- quirement of a county or state wetlands permit. 4. On pages 23-27 of the Appellants’ Petition for Appeal, Appellants set out in detail the United States Claims Court’s analysis of the “parcel as a whole” in Loveladies Harbor, Inc. v. United States, 21 Cl.Ct. 153 (1990) which held that the parcel as a whole was the area which was subject to the jurisdiction of the per- mitting authority and the requirement of a permit, in that case the U.S. Army Corps of Engineers. The Cir- cuit Court of Accomack County has reached a different result in the instant case. 5. As pointed out in footnote 4, page 23 of Appellants’ Petition for Appeal, Loveladies Harbor, Inc. v. United States, 21 Cl.Ct. 153 (1990) is on appeal to the United | 9a States Court of Appeals for the Federal Circuit No. 91-5050 (Fed.Cir., February 13, 1991). 6. Counsel for Appellants has learned that oral argu- ment has been completed in Loveladies Harbor, Inc. V. United States, Federal Circuit No. 91-5050 (Fed.Cir. Feb- ruary 13, 1991) and accordingly a decision by the Fed- eral’Circuit is imminent. 7. While the decision of the Federal Circuit in Love- ladies Harbor, Inc. v. United States, Federal Circuit No. 91-5050 (Fed.Cir. February 18, 1991) may or may not, in this Court’s view, be relevant to this Court’s determi- nation of the Appellants state constitutional claims con- tained in Count I of the Bill of Complaint, the decision is highly relevent to the Appellants federal constitutional claims contained in Count II of the Bill of Complaint which are both on appeal in this case. This Court held in its Order entered on Tuesday the third day of March, 1992, “. .. no reversible error in the judgment complained of. Accordingly, the Court refuses the Petition for Ap- peal.” As a result this Court has found no reversible | error and refused the Appellants’ Petition for Appeal on both. the state constitutional claims and the federal con- stitutional claims. 8 The United States Claims Court is the trial court with jurisdiction over all suits alleging a taking of prop- erty without just compensation in violation of the Fifth Amendment by the United States when the amount in controversy exceeds $10,000, pursuant to jurisdiction un- der the Tucker Act. The Federal Circuit is the Appellate Court that reviews decisions of the United States Claims Court. Accordingly, the decision of the Federal Circuit in Loveladies Harbor, Inc. v. United States, United States Court of Appeals for the Federa! Circuit, No. 91-5050 (Fed.Cir. February 13, 1991) relating to the specific issue raised by the Petition for Appeal in the instant case, i.e., whether the “parcel as a whole” for purposes of the takings analysis should be limited to the area 10a which is subject to the permit requirement or some larger parcel is cirect'y relevant to the Appellants’ federal con- stitutional claim ana could result in this Court finding reversible error in the instant case, at least with respect to Appellants’ federal constitutional claim. 9. Appellants respectfully submit that this Court should grant their Petition for Rehearing and stay fur- ther proceedings in this case, at least with respect to the federal constitutional claims raised on appeal until the Federal Circuit has published its decision in Loveladies Harbor, Inc. v. United States, U.S. Court of Appeals for the Federal Circuit No. 91-5050 (Fed.Cir. February 13, 1991). WHEREFORE, pursuant to Rule 5:20 of the Rules of the Supreme Court of Virginia, Appellants, by Coun- sel, Petition for Rehearing and a stay of any further decision in this case until the Federal Circuit issues its decision in Loveladics Harbor, Inc. v. United States, U.S. Court of Appeals for the Federal Circuit No. 91-5050 (Fed.Cir. February 18, 1991) and that decision is re- viewed by this Court. Epwarp L. TULL and Louise A. TULL /s/ Richard R. Nageotte By Counsel /s/ Richard R. Nageotte RICHARD R. NAGEOTTE NAGEOTTE & KREIN 385 Garrisonville Road, Suite 201 Stafford, VA 22554 (703) 659-5050 Counsel for Appellants, Edward L. Tull and Louise A. Tull wa lla CERTIFICATE OF SERVICE I hereby certify that I have this 9th day of March, 1992, filed eight copies of this Petition for Rehearing with the Clerk of the Supreme Court of Virginia and have served a true copy of this Petition for Rehearing by hand-delivery on the 9th day of March, 1992 to Fred- erick S. Fisher, Esquire and Pamela M. Reed, Esquire, Office of the Attorney General, Commonwealth of Vir- ginia, 101 N. Eighth Street, Richmond, VA 23219, Coun- sel for Commonwealth of Virginia and have on this 9th day of March, 1992, mailed, postage pre-paid by first class mail, a true copy of this Petition for Rehearing to Bruce D. Jones, Jr., Esquire, Accomack County Attorney, One Front Street, Accomac, VA 23301, Counsel for Ac- comack County Board of Supervisors. /s/ Richard R. Nageotte RICHARD R. NAGEOTTE Counsel for Appellants l2a APPENDIX D VINGINIA: IN THE CIRCUIT COURT OF ACCOMACK COUNTY Chancery No. 88-CH-128 Epwarp LUNN TULL and Louise A. TULL, Complainants Vv, COMMONWEALTH OF VIRGINIA and BoARD OF COUNTY SUPERVISORS ACCOMACK COUNTY, VIRGINIA P.O. Box 388 Route 764 Accomac, Virginia 23301 and EpWARD J. MAZUR COMPTROLLER, COMMONWEALTH OF VIRGINIA Department of Accounts James Monroe Building, 2nd Floor 101 N. 14th Street Richmond Virginia 23219 and MARINE RESOURCES COMMISSION OF THE COMMONWEALTH OF VIRGINIA and ACCOMACK COUNTY WETLANDS BOARD, Defendants 13a BILL OF COMPLAINT TO THE HONORABLE N. WESCOTT JACOB, JUDGE OF THIS COURT: Your Complainants respectfully allege as follows: | COUNT ONE 1. This Count One is a Declaratory Judgment action pursuant to Section 8.01-184 and Section 8.01-187 Code of Virginia, to determine whether Complainants’ real property within Accomack County, Virginia, has been taken without just compensation (inverse condemnation) in Violation of Article I, Section 11 of the Constitution of the Commonwealth of Virginia and to appoint Com- missioners to establish the value of the taking pursuant to Section 8.01-187 of the Code of Virginia. 2. In prosecuting their claim of taking against the Board of County Supervisors, County of Accomack, Vir- ginia, your Complainants have exhausted all adminis- trative remedies available to them pursuant to Section 15.1-550, Code of Virginia as evidenced by the denial of claim issued by the County of Accomack, Virginia, on Tuly 21, 1988, which denial of claim together with the Petition of Claim is marked as Exhibit “A” attached hereto and incorporated herein and which denial is ap- pealed by this Bill of Complaint. Your Complainants have caused a written notice of appeal to be served on the Clerk of the Board of Accomack County and have posted a bond pursuant to Section 15.1-552, Code of Virginia. 3. The Board of County Supervisors, Accomack County, Virginia is named as Defendant in this action pursuant to Section 15.1-552, Code of Virginia. 4. In prosecuting their claim of taking against the Marine Resources Commission of the Commonwealth of Virginia, your Complainants have exhausted all admin- istrative remedies available to them pursuant to Section l4a 2.1-223.1, Code of Virginia, as evidenced by the denial of claim issued by the Marine Resources Commission on June 24, 1988, which denial of claim together with the Petition of Claim is marked as Exhibit “B” attached hereto and incorporated herein and which denial is ap- pealed by this Bill of Complaint. 5. The Marine Resources Commission of the Com- monwealth of Virginia is named as Defendant in this action pursuant to Section 8.01-192, Code of Virginia. 6. The Commonwealth of Virginia is a named Defend- ant in this action pursuant to Section 8.01-192, Code of Virginia. 7. Edward J. Mazur, Comptroller of the Common- wealth of Virginia is named as Defendant in this action pursuant to Section 8.01-193, Code of Virginia. 8. The Defendants named in this action are sued jointly and severally to pay compensation to vour Com- plainants which resulted from the taking of Complain- ants’ real property without compensation as alleged herein and attorneys’ fees and costs. 9. Your Complainants Edward Lunn Tull and Louise A. Tull are the owners of Ocean Breeze Mobile Home Sites Subdivision, Section “D’, located within Accomack County upon the Island of Chincoteague, Virginia. 10. By reason of the recordation of the Subdivision Plat for Ocean Breeze Mobile Home Sites, Section “D”, a copy of which Plat is marked as Exhibit “C” attached hereto and incorporated herein, each mobile home lot shown on the Subdivision Plat is an individual and dis- tinct parcel of real property, as is the parcel of property shown as Future Commercial Development. 11. In reliance upon the vested rights granted by the laws of the Commonwealth of Virginia and the Ordinances of Accomack County, Complainants are entitled to develop l5a each and every individual mobile home lot and the area shown as Future Commercial Development shown on the Subdivision Plat of Ocean Breeze Mobile Home Sites, Section “D”, 12. Pursuant to the statutes of the Commonwealth of Virginia and the Ordinances of Accomack County, Vir- ginia relating to the platting and subdivision of land, each of the individually platted mobile home lots located in Ocean Breeze Mobile Home Sites Subdivision, Section “D”, can be used only for the placement of mobile homes and for no other purposes. Complainants have been in the process of completion of development and sale of the indi- vidually platted mobile home lots and the Future Com- mercial Area in accordance with their vested rights as aforesaid. 15. In reliance upon the rights granted to them by the Statutes of the Commonweaith of Virginia and the Ordi- nances of Accomack County, Virginia, relating to the platting and subdivision of land and the approval and platting of the Subdivision Plat for Ocean Breeze Mobile Home Sites Subdivision, Section “D”, your Complainants expended approximately $11,400.00 for engineering and survey work, $5,700.00 for excavating and grading of roads, $102,600.00 for installation of central sewage drain- fields, pumps, and lines. $47,250.00 for installation of water service and $40,937.00 for the installation of elec- trical service to Ocean Breeze Mobile Home Sites Subdi- vision, Section “D”, for the purpose of serving all of the lots located therein. These expenditures by your Com- plainants result by operation of law in a vested right to Complainants’ development of each and every lot desig- nated on the plat of Ocean Breeze Mobile Home Sites Subdivision, Section “D”, and the property designated as Future Commercial Development as shown on said plat. 14, The only outstanding requirement necessary to complete and sell certain lots located in Ocean Breeze Mobile Home Sites Subdivision, Section “D’”, and the | 16a Future Commercial Area, is the filling of said lots and parcels and the grading of roads adjacent to the said lots. 15. The Accomack County Wetlands Board determined that the real property in question and subject to this claim of taking was located within 1.5 times the mean high tide and contained wetlands vegetation listed in the statute and thus asserted its jurisdiction over the prop- erty and required the Complainants to submit an applica- tion for a permit to fill the lots, roads and future com- mercial property more specifically identified in para- graph 23 of this Bill of Complaint. 16. In order to lawfully fill the lots and future com- mercial area in Ocean Breeze Mobile Home Sites Sub- division, Section “D’”’, real property owned solely by the Complainants, which are located in areas subject to juris- diction of the Accomack County Wetlands Board and the Virginia Marine Resources Commission, your Complain- ants filed a permit application with the Accomack County Wetlands Board as required by law and regulations. The purpose of the permit application was to fill the lots within the jurisdiction of the Accomack County Wet- lands Board pursuant to the Wetlands Zoning Ordinance For Accomack County § 28.1 et. seq. and § 62.1-13.1 et. seq., Code of Virginia, 1950 as amended. 17. Jurisdiction of the Accomack County Wetlands Board to require a permit for Complainants to fill their real property subject to this action is contained in the Wetlands Zoning Ordinance for Accomack County, § 4. 18. Jurisdiction of the Virginia Marine Resources Commission over the Accomack County Wetlands Board is contained in Code of Virginia, § 62.1-13.10, § 62.1-13.11, § 62.1-13.12 and § 62.1-13.13. 19. On September 10, 1987, the Accomack County Wet- lands Board denied your Complainants’ Application for a permit to fill the lots, adjacent roads and commercial i 17a area upon the grounds that denial was necessary to pre- serve wetlands on the Island of Chincoteague, Virginia, as a valuable public resource notwithstanding that the land subject to the permit application was the private property of the Complainants. A copy of the denial is marked Exhibit “D” attached hereto and incorporated herein. The permit denial did not provide for compensa- tion to your Complainants. 20. The Virginia Wetlands Statute, Section 62.1-13.1, Code of Virginia, and Accomack Wetlands Zoning Ordi- nance, Section 9 recognize wetlands as a valuable public resource even if located upon private property and en- courage the preservation of these wetlands by denial of permits to fill them. (Accomack County Wetlands Zon- ing Ordinance, Section $ and Sections 62.1-13.9, 62.1-13.3, | 62.1-13.4, Code of Virginia). 21. Neither the Virginia Wetlands Statute nor the Accomack County Wetlands Zoning Ordinance provide | for the payment of compensation when the private prop- erty of a permit applicant is taken for public purposes without compensation by the denial of a permit request. 22. The Commonwealth of Virginia and the Board of Supervisors of Accomack County have the power of emi- nent domain and may take private property for a public purpose but are required by the Constitution of the Com- monwealth of Virginia to pay just compensation. 23. The Accomack County Wetlands Board, by deny- ing Complainants a permit, has denied to your Com- plainants the right to fill and as a direct and proximate result, the right to use and sell the lots, roads, and future commercial development area highlighted in yellow on the plat of Ocean Breeze Mobile Home Sites Subdivision, Section “D”, which is marked Exhibit “C”. This permit denial, marked as Exhibit “D”, denies to Complainants all reasonable viable economic use of Lots 39D, 46D, 47D, 51D, 52D, 53D and 54D of Ocean Breeze Mobile Home 18a Sites, Section “D”, the adjacent roads and the entire Future Commercial Development area. 24. In accordance with the applicable provisions of law, your Complainants appealed the decision of the Ac- comack County Wetlands Board to the Virginia Marine Resources Commission. 25. On November 5, 1987, the Virginia Marine Re- sources Commission upheld and affirmed the decision of the Accomack County Wetlands Board denying the per- mit application of the Complainants. A copy of the ac- tion of the Virginia Marine Resources Commission is marked Exhibit “E”, attached hereto and incorporated herein. 26. By reason of the actions taken, as set out in Para- graphs 23, 24, and 25 above, your Complainants have been denied a permit to fiil the lots, roads, and future commercial area as herein described, and as a direct and proximate result of the denial of their permit ap- plication, cannot use, develop or sell the lots, roads, and future commercial area herein described. 27. Because your Complainants cannot fill and there- fore cannot develop, use or sell the lots, roads and future commercial area hereinafter set out, they have lost all reasonable viable economic use of the lots, roads and fu- ture commercial development area herein described. By reason of the denial of a permit to fill said lots, roads and future commercial development area and by reason of the failure and refusal of the Accomack County Wet- lands Board to grant the permit necessary and the sub- sequent affirmation of permit denial by the Virginia Ma- rine Resources Commission, the lots, roads and future commercial areas herein described have been taken with- out compensation by Accomack County and the Common- wealth of Virginia for public purposes, i.e. preservation of the wetlands area for the use and benefit of the public in general. As a result, your Complainants have been eee 19a denied all reasonable economic viable use of the property, the property has no reasonable value to your Complain- ants, and your Complainants have been required by the permit denial to bear a disproportionate burden of the public benefits which result from the permit denial. 28. The action of the Accomack County Wetlands Board, which has been affirmed by the Virginia Marine Resources Commission, has resulted in a taking of pri- vate property for public use and benefit without just compensation, in violation of the Constitution of the Com- monwealth of Virginia and constitutes an inverse con- demnation of the private property of the Complainants for public use. 29. The Accomack County Wetlands Board acts both as an agency of and as the authorized agent of the Ac- comack County Board of Supervisors and the Common- wealth of Virginia for purposes of Wetlands Zoning De- cisions. The Accomack County Board of Supervisors and Accomack County are jointly and severally responsible for any claims for taking of private property for the publie’s use and benefit without compensation which re- sults from the Accomack County Wetlands Board’s denial of permit applications to fill wetlands located within Ac- comack County, Virginia. 30. The Virginia Marine Resources Commission is an agency of the Commonwealth of Virginia and operates in a supervisory capacity over the Accomack County Wet- lands Board pursuant to the provision of the Code of Virginia, 1950, as amended, § 28.1 et. seg. and § 62.1 et. seq. Accordingly, Accomack County, the Accomack County Board of Supervisors, Accomack County Wetlands Board, Virginia Marine Resources Commission and Common- wealth of Virginia are jointly and severally liable for all claims relating to the taking of private property for the publie’s use and benefit without compensation which re- sult from failure or refusal to grant permits for filling of wetlands within Accomack County, Virginia. ee 20a 31. Based upon recent comparable sales, the fair mar- ket value of each of the mobile home lots shown on Ex- hibit “C”, for which a permit to fill was denied by the Accomack County Wetlands Board, was $17,000.00 per mobile home lot at the time the taking occurred. 32. Based upon recent comparable sales, the fair mar- ket value of the Future Commercial Development area shown on Exhibit “C’’, was $75,000.00 at the time the taking occurred. 33. Because a permit to fill the land shown on Exhibit “C” has been denied, the Complainants have lost all rea- sonable economic use and value of lots 39D, 46D, 47D, 51D, 52D, 53D, and 54D and the roads necessary to ob- tain access to these lots and the area shown as Future Commercial Development. The fair market value at the time of the taking for which compensation is claimed is $194,000.00, which is calculated as follows: LOT NO. FAIR MARKET VALUE 39D $ 17,000.00 46D $ 17,000.00 47D $ 17,000.00 51D $ 17,000.00 52D $ 17,000.00 53D $ 17,000.00 54D $ 17,000.00 Future Commercial Area $ 75,000.00 Total: $194,000.00 34. For the reasons hereinabove set out, your Com- plainants make this claim against the Board of Super- visors of Accomack County, Virginia and the Accomack County Wetlands Board, and the Commonwealth of Vir- ginia and the Marine Resources Commission of the Com- monwealth of Virginia jointly and severally, in the total sum of $194,000.00 for the taking of their private prop- erty for public use and benefit without just compensation in violation of the Constitution of the Commonwealth of Virginia. a 2la WHEREFORE, your Complainants pray that this Court grant the following relief: a. Entry of a Decree which declares that the denial of your Complainants application for a permit to fill the lots, adjacent roads and future commercial development area as set out on Exhibit “C” and listed in paragraph 33, by the Accomack County Wetlands Board and the subsequent affirmation of permit denial by the Virginia Marine Resources Commission constitute a taking of Complainants’ real property by both the County of Ac- comack, Virginia through the Accomack County Wetlands Board and by the Commonwealth of Virginia through the Virginia Marine Resources Commission. b. Entry of a Decree which declares that such per- mit denial and taking of Complainants’ real property by the County of Accomack, Virginia and the Commonwealth of Virginia was a taking without just compensation and that such permit denial and taking without compensation is in violation of Article I, Section 11 of the Constitu- tion of the Commonwealth of Virginia. c. For a Decree appointing Commissioners in accord- ance with § 8.01-187, Code of Virginia, to set the value of the take and enter Judgment in favor of your Com- plainants against the County of Accomack, Virginia and the Commonwealth of Virginia, jointly and severally, in the amount of $194,000.00 as just compensation for the taking of your Complainants’ real property at the time of the taking together with interest at the judgment rate from the time of the taking until paid. d. For a Decree awarding judgment for reasonable costs to your Complainants incurred in the prosecution of this action including attorney, appraisal, and engineer- ing fees actually incurred pursuant to Section 25-251, Code of Virginia, 1950, as Amended. e. For such other and further relief as may be neces- sary and appropriate. ee 22a COUNT TWO 35. This Count Two is an action pursuant to the Fifth Amendment to the Constitution of the United States made applicable to the Commonwealth of Virginia and its political subdivisions through the Fourteenth Amend- ment to the Constitution of the United States which pro- hibits the Commonwealth of Virginia, through the Vir- ginia Marine Resources Commission and the County of Accomack, Virginia through the Accomack County Wet- lands Board, from taking private property for public use without just compensation. 36. The allegations contained in paragraphs 1 through 34 as set out in Count One are hereby incorporated into this Count Two by reference as if the same were fully set out and realleged in this Count Two. 37. In reliance upon an approved Subdivision Plat, your Complainants committed substantial financial re- sources in developing their property for its intended pur- pose i.e., mobile home and commercial lots. 38. The denial of a permit by the Accomack County Wetlands Board to fill the lots, adjacent roads and com- mercial area as set out on Exhibit “C” and the subse- quent affirmation of permit denial by the Virginia Ma- rine Resources Commission renders your Complainants’ property unusable for its intended purposes, i.e., mobile home and commercial lots pursuant to a previously ap- proved Plat. 39. Because of the denial of the permit by the Ac- comack County Wetlands Board and the subsequent af- firmation of permit denial by the Virginia Marine Re- sources Commission, your Complainants’ property has no reasonable viable economic worth and your Complainants are unable to either use or sell their property. Denial of the permit constitutes a taking of Complainants’ prop- erty without compensation. 40. The main purpose of the denial of the fill permit by the Accomack County Wetlands Board and the subse- a eae 23a quent affirmation of permit denial by the Virginia Re- sources Commission is to preserve wetlands for public use, benefit, and enjoyment. Permit denial to fill the property in question imposes a preservation easement, for the benefit of the public, upon your Complainants’ property by denying the fill permit which is necessary and essential for any economic use of the property by your Complainants. 41. The Board of County Supervisors, Accomack County, Virginia and the Commonwealth of Virginia have refused to compensate your Complainants for the taking of their property. 42. The imposition of the preservation easement wholly frustrates Complainants’ reasonable investment backed expectations, denies Complainants all practical, beneficial and economic use of the property, and so wholly destroys the economic value of the property as to constitute a taking of the property without just compensation in vio- lation of the Fifth Amendment to the Constitution of the United States made applicable to the Commonwealth of Virginia and the County of Accomack, Virginia through the Fourteenth Amendment to the Constitution of the United States. WHEREFORE, your Complainants pray that this Court grant the following relief: a. Entry of a Decree which declares that the denial to your Complainants of a permit to fill the lots, adjacent roads and commercial area as set out on Exhibit “C” and listed in paragraph 33, by the Accomack County Wetlands Board and the subsequent affirmation of per- mit denial by the Virginia Marine Resources Commis- sion constitute a taking of Complainants’ real property by both the County of Accomack, Virginia through the Accomack County Wetlands Board and by the Common- wealth of Virginia through the Virginia Marine Re- sources Commission. EE 24a b. Entry of a Decree which declares that such permit denial and taking of Complainants’ real property by the County of Accomack, Virginia and the Commonwealth of Virginia was a taking without just compensation and that such permit denial and taking is in violation of the Fifth Amendment to the Constitution of the United States made applicable to the Commonwealth of Virginia and Ac- comack County, Virginia through the Fourteenth Amend- ment to the Constitution of the United States. ce. Judgment in favor of your Complainants against the County of Accomack, Virginia, and the Accomack County Wetlands Board, and the Commonwealth of Vir- ginia, and the Virginia Marine Resources Commission jointly and severally, in the amount of $194,000.00 as just compensation for the taking of your Complainants’ real property at the time of the taking together with in- terest at the judgment rate from the time of the taking until paid. d. For a judgment awarding reasonable costs to your Complainants incurred in the prosecution of this action including attorney, appraisal, and engineering fees ac- tually incurred. e. For such other and further relief as may be neces- sary and appropriate. ‘EDWARD LUNN TULL and Louise A. TULL /s/ Edward Lunn Tull /s/ Louise A. Tull By Counsel ‘'s/ Richard R. Nageotte RICHARD R. NAGEOTTE DouGLas R. HANSEN Nageotte & Borinsky, P.C. 14908 Jefferson Davis Highway Woodbridge, Virginia 22191 Counsel for Complainants 25a APPENDIX E AMENDMENT V CONSTITUTION OF THE UNITED STATES No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or in- dictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be de- prived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, Without just compensation. AMENDMENT XIV SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal pro- tection of the laws. The Virginia Wetlands Statute, Code of Virginia 1950 as amended, $$ 62.1-13.1 et seg., provides in relevant part: § 62.1-13.1. Declaration of policy —The Commonwealth of Virginia hereby recognizes the unique character of the wetlands, an irreplaceable natural resource which, in its natural state, is essential to the ecological systems of the tidal rivers, bays and estuaries of the Commonwealth. 26a This resource is essential for the production of marine and inland wildlife, waterfowl, finfish, shellfish and flora; is valuable as a protective barrier against floods, tidal storms and erosion of the shores and soil within the Com- monwealth; is important for the absorption of silt and of pollutants; and is important for recreational and aes- thetic enjoy:nent of the people for the promotion of tour- ism, navigation and commerce. Continued destruction of Virginia’s coastal wetlands will greatly contribute to the pollution of the Common- wealth’s rivers, bays and estuaries; will diminish the abundance of Virginia’s marine and inland animals and waterfewl, finfish, shellfish and flora as sources of food, employment and recreation for the people of Virginia; will increase costs and hazards associated with floods and tidal storms; and will accelerate erosion and the loss of lands productive to the economy and the well-being of our citizens. Therefore, in order to protect the public interest, pro- mote the public health, safety and the ecoriomic and gen- eral welfare of the Commonwealth, and to protect public and private property, wildlife, marine fisheries and the natural environment, it is declared to be the public policy of this Commonwealth to preserve the wetlands and to prevent their despoliation and destruction and to accom- modate necessary economic development in a manner con- sistent with wetlands preservation. (1972, ¢. 711.) § 62.1-13.3. Standards for use and development of wetlands; utilization of guidelines—The following stand- ards shall apply to the use and development of wetlands and shall be considered in the determination of whether applications required by this chapter should be granted or denied: (1) Wetlands of primary ecological significance shall not be altered so that the ecological systems in the wet- lands are unreasonably disturbed; 27a (2) Development in Tidewater Virginia, to the maxi- mum extent practical, shall be concentrated in wetlands of lesser ecological significance, in vegetated wetlands which have been irreversibly disturbed before July 1, 1972, in nonvegetated wetlands as describec' zerein which have been irreversibly disturbed prior to January 1, 1983, and in areas of Tidewater Virginia apart from the wet- lands. (3) The provisions of the guidelines promulgated by the Commission pursuant to § 62.1-13.4 of this Code shall be considered in applying the foregoing standards. (1972, ce. 711; 1982, ce. 300.) § 62.1-13.11. When Commission to review decision of wetlands board—The Commission shall review a decision of a wetlands board made under a wetlands zoning ordi- nance when: (1) An appeal is taken from such decision by the ap- plicant for a permit or by the county, city or town where the wetlands are located; or § §2.1-13.18:1. Injunctions.—In addition to and _ not- withstanding the provisions of § 62.1-13.18, upon petition of the Commission or a wetlands board to the court of record having jurisdiction in the city or county wherein any act is done or is threatened to be done which is un- lawful under the provisions of this chapter, the court may enjoin such unlawful act and may order the person so acting unlawfully to take such steps as are necessary to restore, protect and preserve the wetlands involved. (1973, ce. 65.) § §62.1-13.18:2. Penalties —A. Without limiting the rem- edies which may be obtained in this chapter, any person who violates any provision of this chapter or who violates or fails, neglects or refuses to obey any Commission or wetlands board notice, order, rule, regulation or permit condition authorized by this chapter shall, upon such finding by an appropriate circuit court, be assessed a 28a civil penalty not to exceed $25,000 for each day of viola- tion. Such civil penalties may, at the discretion of the court assessing them, be directed to be paid into the treasury of the county, city, or town in which the viola- tion occurred for the purpose of abating environmental damage to, or the restoration of wetlands therein, in such a manner as the court may, by order, direct, except that where the violator is the county, city, or town itself, or its agent, the court shall direct the penalty to be paid into the state treasury. B. Without limiting the remedies which may be ob- tained in this chapter, and with the consent of any person who has violated any provision of this chapter or who has violated or failed, neglected or refused to obey any Commission or wetlands board order, rule, regulation, or permit condition authorized by this chapter, the Com- mission or wetlands board may provide, in an order issued by the Commission or wetlands board against such person, for the one-time payment of civil charges for each violation in specific sums, not to exceed $10,000 for each violation. Civil charges shall be in lieu of any appropriate civil penalty which could be imposed under subsection A of this section. Civil charges may be in addition to the cost of any restoration ordered by the Commission or a wetlands board. (1990, c. 811.) The Wetlands Zoning Ordinance For Accomack County, §§ 28.2 et seq., provides in relevant part: SECTION 1. The governing body of Accomack County, acting pursuant to Chapter 2.1 of Title 62.1 of the Code of Virginia, for purposes of fulfilling the policy standards set forth in such chapter, adopts this ordinance regulat- ing the use and development of wetlands. SECTION 4 (a) Any person who desires to use or develop any wet- land within this County, other than for those activi- ties specified in Section 3 above, shall first file an 29a application for a permit with the wetlands board directly or through the Commission. (b) An application shall include the following: the name and address of the applicant; a detailed de- scription of the proposed activity and a map, drawn to an appropriate and uniform scale, showing the area of wetland directly affected, with the location of the proposed work thereon, indicating the area of existing and proposed fill and excavation, especially the location, width, depth and length of any proposed channel and the disposal area, all existing and pro- posed structures; sewage collection and treatment facilities, utility installations, roadways, and other related appurtenances or facilities, including those on adjacent uplands, and the type of equipment ot be used and the means of equipment access to the ac- tivity site; the names and addresses of owners of record of adjacent land and known claimants of water rights in or adjacent to the wetland of whom the applicant has notice; an estimate of cost; the primary purpose of the project; any secondary pur- poses of the project, including further projects: the public benefit to be derived from the proposed proj- ect; a complete description of measures to be taken _ - during and after the alteration to reduce detrimental offsite effects: the completion date of the proposed work, project, or structure and such additional ma- terials and documentation as the wetlands board may deem necessary. (c) A nonrefundable processing fee to cover the cost of processing the application, set by the applicable gov- erninge body with due regard for services to be ren- dered, including the time, skill and administrator’s expense involved, shall accompany each application. SECTION 5. All applications and maps and documents relating thereto shall be open for public inspection at the office of the recording officer of this County. 30a SECTION 6. Not later than Sixty (60) days after receipt of such application, the wetlands board shall hold a public hearing on such application. The applicant, the local governing body, the Commissioner, the owner of record of any land adjacent to the wetlands in question, known claimants of water rights in or adjacent to the wetlands in question, the Virginia Institute of Marine Science, the Department of Game and Inland Fisheries, Water Control Board, the Department of Highways and governmental agencies expressing an interest therein shall be notified of the hearing by mail not less than twenty (20) days prior to the date set for the hearing. The wetlands board shall also cause notice of such hear- ing to be published at least once a week for two (2) weeks prior to such hearing in the newspaper having a general circulation in this County. The costs of such publication shall be paid by the applicant. SECTION 9. (a) In making its decision whether to grant, to grant in modified form, or to deny an application for a per- mit the Board shall base its decision on these factors: 1. Such matters raised through the testimony of any person in support of or in rebuttal to the permit application. to ; Impact of the development on the public health and welfare as expressed by the policy and stand- ards of Chapter 2.1 of Title 62.1 of the Code of Virginia and any guidelines which may have been promulgated thereunder by the Commission. ib) If the Board, in applying the standards above, finds that the anticipated public and private benefit of the Proposed activity exceeds the anticipated public and private detriment and that the proposed activity would not violate or tend to violate the purposes and intent of Chapter 2.1 of Title 62.1 of the Code of 3la Virginia and of this ordinance, the Board shall grant the permit, subject to any reasonable condition or modification designed to minimize the impact of the activity on the ability of this County, to provide gov- ernmental services and on the rights of any other person and to carry out the publie policy set forth in Chapter 2.1 of Title 62.1 of the Code of Virginia and in this ordinance. Nothing in this section shall be construed as affecting the right of any person to seek compensation for any injury in fact incurred by him because of the proposed activity. If the Board finds that the anticipated public and private benefit from the proposed activity is exceeded by the anticipated public and private detriment or that the proposed activity would violate the purposes and in- tent of Chapter 2.1 of Title 62.1 of the Code of Vir- ginia and of this ordinance, the Board shall deny the permit application with leave to the applicant to re- submit the application in modified form. SECTION 12. No permit granted by a wetlands board shall affect in any way the applicable zoning and land use ordinance of this County. SECTION 13. The effective date of this ordinance shall be January 1, 1983. The Virginia Land Subdivision and Development Stat- ute, Code of Virginia 1950 as amended §§ 15.1-465 et seq., provides in relevant part: $ 15.1-465. Counties and municipalities to adopt ordi- nances reguluting subdivision and development of land.— The governing body of anv county or municipality shall adopt an ordinance to assure the orderly subdivision of land and its development. Such ordinance shall be adopted by July 1, 1977. The word “subdivision” as used in any such ordinance shall have the meaning set forth in § 15.1- 48011) of this Code. (Code 1950, § 15-781; Code 1950, § 15-967; 1950, p. 183; 1962, ¢. 407; 1975, ¢. 641.) 32a $ 15.1-466. Provisions of subdivision ordinance.—A. A subdivision ordinance shall include reasonable regulations and provisions that apply to or provide: 1. For plat details which shall meet the standard for plats as adopted under § 42.1-82 of the Virginia Public Records Act (§ 42.1-76 et seq.) ; 2. For the coordination of streets within and contigu- ous to the subdivision with other existing or planned streets within the general area as to location, widths, grades and drainage, including, for ordinances and amendments thereto adopted on or after January 1, 1990, for the coordination of such streets with existing or planned streets in existing or future adjacent or contigu- ous to adjacent subdivisions; 3. For adequate provisions for drainage and flood con- trol and other public purposes, and for light and air; 4. For the extent to which and the manner in which streets shall be graded, graveled or otherwise improved and water and storm and sanitary sewer and other public utilities or other community facilities are to be installed; 5. For the accep [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0985%3A1. Public record. Not legal advice.