Petition for Writ of Certiorari — BW Parkway Associates Partnership v. United States, 115 S. Ct. 1356 (1995) (No. 94-1104)
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Omemtaisas Vv = &
OFFICE OF THE CLERK
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 19 __
BW PARKWAY ASSOCIATES PARTNERSHIP,
PETITIONER,
vs.
THE UNITED STATES,
RESPONDENT.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
PETITION FOR WRIT OF CERTIORARI
C. ELYSE VINITSKY
4801 Hampden Lane
Suite 105
Bethesda, Maryland 20814
(301) 657-2400
Attorney for Petitioner
BW PARKWAY
ASSOCIATES
WHERE THE FEDERAL GOVERNMENT
SECRETLY DETERMINED IN 1968 THAT ALL
PRIVATE STRUCTURES ON LANDOWNER’S
PROPERTY POSED A THREAT TO NATIONAL
SECURITY AND THEN’ THE FEDERAL
GOVERNMENT ENGAGED IN A COURSE OF
CONDUCT FOR OVER NINETEEN YEARS
DELIBERATELY DESIGNED TO ENSURE THAT
NO BUILDINGS WERE BUILT, WERE THE
GOVERNMENT’S ACTIONS TANTAMOUNT TO
REGULATING NO DEVELOPMENT ON BWPA’S
PROPERTY UNDER LUCAS V. S.C. COASTAL
COUNCIL?
WHERE THE GOVERNMENT DETERMINED THAT
CONSTRUCTION OF ANY BUILDINGS ON
PETITIONER’S PROPERTY POSED A RISK TO
NATIONAL SECURITY BECAUSE SPIES COULD
LIVE AND WORK IN_- STRUCTURES IF
CONSTRUCTED, WAS THERE A TAKING UNDER
THE SUPREME COURT’S RULING IN NOLLAN V.
CAL, COASTAL COMM’N AND DOLAN V,_CITY
QF TIGARD BECAUSE THERE WAS NO
LOGICAL NEXUS BETWEEN RESTRICTING THE
HEIGHT OF PROPOSED STRUCTURES AND
WHETHER SPIES COULD LIVE AND WORK IN
SUCH BUILDINGS?
Ii.
WHERE THE FEDERAL GOVERNMENT
ENGAGED IN A COURSE OF CONDUCT OVER
19 YEARS DELIBERATELY DESIGNED TO
ENSURE THAT LANDOWNER’S REAL PROPERTY
REMAINED VACANT AND UNDEVELOPED
BECAUSE ANY BUILDINGS ON LANDOWNER
BWPA’S PROPERTY POSED A THREAT TO
NATIONAL SECURITY, DOES THE FIFTH
AMENDMENT TO THE UNITED ' STATES
CONSTITUTION MANDATE PAYMENT OF JUST
COMPENSATION?
SHOULD THE SUPREME COURT ESTABLISH
TWO TESTS FOR TAKINGS - ONE INVOLVING
VACANT OR UNDEVELOPED PROPERTY AND
ANOTHER FOR’ PROPERTY WHICH IS
DEVELOPED?
WHERE THE FEDERAL GOVERNMENT
PERMANENTLY TAKES THE FEE OF
UNDEVELOPED REAL PROPERTY, AFTER
THWARTING ALL DEVELOPMENT ON THE
PROPERTY FOR 19 YEARS, TO ADVANCE
NATIONAL SECURITY INTERESTS, DO FIRST
ENGLISH EVANGELICAL LUTHERAN CHURCH
OF GLENDALE V, CTY. OF LOS ANGELES AND
THE CONSTITUTION MANDATE THAT THE
GOVERNMENT PAY COMPENSATION FOR THE
TEMPORARY TAKING?
i ie ed eee
‘
Ne tebe ne +
DID THE COURT OF APPEALS IN AFFIRMING
THE COURT OF FEDERAL CLAIMS ERR AS A
MATTER OF LAW BY FAILING TO RECOGNIZE
THAT BOTH LEGITIMATE GOVERNMENT
ACTIONS AND GOVERNMENT ACTIONS NOT
LEGITIMATE CAN AFFECT A TAKING IF THE
ACTIONS DEPRIVE THE LANDOWNER OF
SUBSTANTIALLY ALL ECONOMIC USE OF
PROPERTY?
DID THE COURT OF APPEALS IN AFFIRMING
THE COURT OF FEDERAL CLAIMS ERR AS A
MATTER OF LAW BY EXAMINING EACH
GOVERNMENT ACTION IN ISOLATION TO
DETERMINE WHETHER A SPECIFIC
GOVERNMENT ACTION IN AND OF ITSELF
PREVENTED BWPA FROM DEVELOPING ITS
PROPERTY INSTEAD OF CONSIDERING THE
IMPACT OF THE TOTALITY OF THE
GOVERNMENT ACTIONS UPON LANDOWNER’S
REASONABLE INVESTMENT-BACKED
EXPECTATIONS?
a
CERTIFICATE OF INTEREST
Counsel for the Petitioner, BW Parkway Associates,
certifies the following:
1. The full name of the party represented by me is:
BW Parkway Associates, which is a general partnership, successor
in interest to BW Parkway Associates Limited Partnership.
2. The partners of BW Parkway Associates are the
Melvin J. Berman Revocable Trust, the primary beneficiary who
is Melvin J. Berman, BW-32 Partnership, a partnership comprised
of the Melvin J. Berman Revocable Trust, Dennis Berman and
Gary Berman.
3. There are no parent companies of the party, no
subsidiaries (except wholly-owned subsidiaries), nor affiliates that
have issued shares to the public represented by me.
4. That all law firms and the partners or associates
that appeared for the party or amicus now represented by me in the
trial court or agency or are expected to appear in this court are:
Elyse Vinitsky is expected to appear in this court. Elyse Vinitsky
and Christine M. Sorge of Bethesda, Maryland and Daniel Grove
iv
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8c rire whine shoe
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TABLE OF CONTENTS
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
QUESTIONS PRESENTED FOR REVIEW ........... i
LIST OF PARTIES - CERTIFICATE OF INTEREST .... iv
Bees UR CUBTEEINES 2 nc ccc cc ccc cc ccene vi
py Be ey sy Vii
MEY bec h ee ee sssctccecesscvevecs 2
STATEMENT OF JURISDICTION ................. 2
CONSTITUTIONAL AND STATUTORY PROVISIONS
ey ce esa Sah ak Sb 4 OSS Dh eo 2
eimameees GP THE CASE 2... ccc ccc cces 3
REASONS FOR GRANTING THE WRIT ........... 14
RR RR ee 56
INDEX TO APPENDICES
Appendix A
Opinion of the United States Court of Federal
Claims reported as
B.W., Parkway Associates
Limited Partnership v. United States, 29 Fed. Cl.
669 (1993)
Per Curiam Opinion of the United States Court of
Appeals for the Federal Circuit
Appendix C
Amendments IV and V to the United States
Constitution
Appendix D
10 U.S.C. § 2803; 10 U.S.C. § 2672a and 42
U.S.C. § 4651 et. seq.
TABLE OF AUTHORITIES CITED
CASES
Agins v. Tiburon, 447 U.S. 255 (1980) ..... 19, 20, 42, 49
Althaus v. U.S., 7 Cl. Ct. 688 (1985) ........... 45, 48
Armstrong v. U.S., 364 U.S. 40 (1960) .......... 17, 34
Benenson v. U.S., 548 F.2d 939 (Ct. Cl. 1977) ... 20, 48, 54
29 Fed.
passim
oe oS 2.8.8 Ce. Ce € @e @€.€ ee eae @eo@ceCéct@ee+oeewe@oe oe &€ 6 8 6.6 @
ERRORS ORASHOCES EEE COS Cee Soa He de eESs passim
vii
Drakes Bay Land Co, v, U.S., 424 F.2d 574 (Ct. Cl. 1970)
ne Bitumi , as
a 6 Rage ener ae ere 19, 20
Loveladies Harbor, Inc, v, ULS., 21 Cl. Ct. 153 (1990) .....
FG ee COA ee Ok EM 6 eR Re 4h
Lucas v a 112 S. Ct. 2886
nS own e eae os ha 0 econ Oe eee Ke eS passim
Nollan v. Cal, Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141
Ry eo aren aa aa aaa eer eee passim
Pennsylvania Coal v, Mahon, 260 U.S. 393 (1922) ........
Ee ee ee ee re ee ee ee 28, 30, 38, 49, 51
U.S. v. General Motors, 323 U.S. 373 (1945) ...... 43, 44
U.S, v. 255.21 Acres of Land, No. WN- 87 - 2810 (D.MD. July
CS BRAN EE rrr see ree ee ee ee ee 3
Village of Belle Terre et al. v. Boraas, et al., 416 U.S. 1
GS ae Se Saar see a ea ee ae ae ee 42
Village of Euclid et al, v. Ambler Realty Co,, 272 U.S. —
Sere rere eT Tee ee ee ee ee ee ee
CONSTITUTIONAL AMENDMENTS AND STATUTES
CS re 2, 42
U.S. CONST. amend. aes de Ne ee ek es passim
CE fbb wae eae e eed ee eee sees 2, 10, 21
ET eT eee ee eee ee 2, 10, 21
EE Gin Svcd bees eeecesescceceses 2
Doo oe cc cae cc cess reese 4
I eee 3
42 U.S.C. § 4651 through 4655 .............. 2, 11, 43
No.
IN THE SUPREME COURT
OF THE
UNITED STATES OF AMERICA
OCTOBER TERM, 19 __
BW PARKWAY ASSOCIATES PARTNERSHIP,
PETITIONER,
vs.
THE UNITED STATES,
RESPONDENT.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
Petitioner, BW Parkway Associates Partnership ("BWPA"),
respectfully prays that a writ of certiorari issue to review the per
curiam affirmance by the United States Court of Appeals for the
Federal Circuit of the United States Court of Federal Claims
judgment finding that BWPA had not met its burden of proof that
the Government’s conduct caused BWPA to suffer economic loss.
OPINIONS BELOW
The opinion of the United States Court of Federal Claims
is reported as B
United States, 29 Fed. Cl. 669 (1993), and appears in Appendix
A to this Petition. The per curiam affirmance by the United States
Court of Appeals for the Federal Circuit appears in Appendix B to
this Petition.
JURISDICTION
The United States Court of Federal Claims Opinion in this
matter was filed on October 15, 1993. A timely appeal was filed
in the United States Court of Appeals for the Federal Circuit. The
Court of Appeals’ Opinion was filed on September 15, 1994. This
Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
Amendment IV and Amendment V to the United States
Constitution are set forth in Appendix C. 10 U.S.C. § 2803; 10
U.S.C. § 2672a; and 42 U.S.C. § 4651 et. seq. are set forth in
Appendix D.
STATEMENT OF THE CASE
The main issue is whether the Government’s actions in
thwarting all development on BWPA’s property to maintain a
security buffer for NSA from 1968 through October 1987
constituted a temporary taking of private property for which just
compensation is mandated under the Fifth Amendment.
The United States Court of Federal Claims ("CFC") had
jurisdiction of this case pursuant to 28 U.S.C. § 1491.' The CFC
1The Government filed a Declaration of Taking in the District Court
for 255.21 acres of BWPA’s property on October 19, 1987. BWPA filed
a counterclaim alleging a temporary taking of BWPA’s property. On
September 21, 1989, the District Court ordered that BWPA’s
counterclaim be transferred to the Claims Court. The judgment entered
in the District Court on July 22, 1991 was for the fair market value of the
property taken on October 19, 1987. BWPA did not receive any
compensation for the loss caused by the Government’s actions prior to
October 19, 1987. In fact the Order granting Judgment states:
Plaintiff and defendant agree that this settlement is in no way res
judicata of the case pending in the United States Claims
Court...and by entering into the stipulation and accepting
judgment, B-W Parkway Associates is neither estopped nor
collaterally estopped from making its claims against the United
States...Plaintiff [the Government] offered additional monies to
Defendant [BWPA] to settle the Claims Court matter, but
Plaintiff and Defendant were unable to reach agreement on
matters pending in the Claims Court.
United States v. 255.21 Acres of Land, No. WN-87-2810 (D.MD. July
2, 1991).
— —_r . Ss
allocated only four days for the entire trial on the issue of liability
with just 2 days for BWPA to submit its extensive evidence of 20
years of Government interference. The CFC held that BWPA had
not met its burden of proof that the Government’s conduct caused
BWPA to suffer economic loss. Id, BWPA timely filed its Notice
of Appeal on December 17, 1993 with the United States Court of
Appeals for the Federal Circuit which has jurisdiction to review
the CFC’s judgments for error on questions of law and clear error
on findings of fact. 28 U.S.C. § 1295(a)(3). The Court of
Appeals affirmed the judgment of the CFC without an opinion on
September 15, 1994.
Petitioner, Landowner, is BW Parkway Associates
Partnership ("BWPA"). Respondent is the United States
Government ("Government"). The agency of the Government
most involved was the National Security Agency ("NSA"). The
property ("property") was approximately 255 acres of unimproved
land in Anne Arundel County, Maryland.? The property was
*The total acreage was 258.783 acres. BWPA’s claim is based on
the Government precluding development on approximately 255+ acres of
unimproved land. The CFC Opinion erred in stating: "Throughout the
4
located at Maryland Route 32 and the Baltimore-Washington
Parkway ("BW Parkway”) and bordered on the east by NSA and
by Fort George G. Meade. In historical documents, the property
was referred to as the “Colony Fairfield Tract" or the "Berman
Tract.” The property was located equidistant from three large
population centers, Baltimore, Washington, D.C. and Annapolis.
The vacant land was expressly assembled because it was
adjacent to NSA, a very large employer. The principals of BWPA
were knowledgeable, experienced, and successful developers.
Melvin Berman, a principal of BWPA, was the initiating force
behind the development of the planned city of Columbia,
Maryland.
Throughout 1968-1987, the property’s zoning was: 133
acres of high-rise residential, 53 acres high-density commercial,
and 70 acres residential. When BWPA assembled the property
period at issue, though, the only tenants of the property were a motel, gas
station and doughnut shop, and the ssmainder of the property was
vacant.” 29 Fed. Cl. at 671. The motel was developed in the early
1960’s and was not owned by BWPA. Both the doughnut shop and gas
station were constructed before the period at issue and covered
approximately 1.3 acres of ground.
5
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there was no published law, regulation or statute that would have
prohibited development of the property because of its proximity to
NSA or for any other reason. In 1967, when BWPA received
confirmation from the General Counsel of NSA that no NSA
official had been authorized to tell BWPA that the owners would
not be allowed to develop, BWPA fully believed that it was free to
develop its property to its full density.
Experts at trial testified that throughout the period 1968-
1987, BWPA actively and continuously pursued development in a
logical fashion and the development proposed was feasible.
Sufficient water and sewer were available for development of
BWPA’s property. The evidence established that from 1968
through 1987, BWPA spent large sums of money on the following:
taxes, insurance, architects, lawyers, engineers and contractors to
obtain water and sewer approvals, develop plans, conduct water
and sewer studies, soil tests, elevation studies, subdivision
submissions, and design building plans for residential areas, office
buildings and a shopping center. There was adequate access and
road capacity to support BWPA’s development. “The record
CB OO
reflects that real estate development between Baltimore and
Washington was “booming” during the period at issue.” 29 Fed.
Cl. at 671. BWPA had reasonable investment-backed expectations
of developing a town center with high-rise office buildings, high-
rise apartments and a shopping center.
Throughout the period from 1968-1987, NSA was
continually expanding. By the time this lawsuit came to trial, NSA
occupied 5-6 million square feet of buildings adjacent to the
property. In the late 1960’s unbeknownst to BWPA, the
Government secretly determined that a security buffer was required
around NSA because if buildings were built on BWPA’s property,
the interests of national security would be threatened. Beginning
in 1967 and throughout subsequent years, NSA conducted many
Technical Vulnerability Studies. The ultimate conclusion of all of
the Technical Vulnerability Studies was the same: any
development of BWPA’s property posed a threat to national
security and BWPA’s property should be acquired in the interest
of national security. “NSA officials regarded a large-scale
development on the property as a threat to NSA’s mission. NSA
collects foreign intelligence for the United States. Its operations
are secret, and a foreign government ‘would absolutely gain from
knowledge of what was going on inside the facility.’" Id, at 671.
NSA’s internal documents in evidence reveal an internal DoD
document which states:
The justification for the requested acquisition was
to ensure against the violation of security of the
Headquarters in the years to come, particularly as
it is known that the owner of this land is planning
intensive apartment and office building
construction. The concern of NSA apparently is
that having this intense development, probably
high-rise, adjacent to the headquarters could permit
snooping and other security interference...
(balance of sentence redacted)
Letter from Edward J. Sheridan, Deputy Asst. Sec. of Defense to
Finn Larsen, Deputy Director DoD (November 12, 1968).
On November 19, 1968, a letter from Marshall Carter, the
Director of NSA to the Deputy Director of Defense, first
declassified in 1989 and admitted into evidence, said in part:
F NSA has been concerned that the development of
' this land...would seriously encumber the required
security of Agency activities. Recent events have
3 confirmed our concern. The owner of the property
has provided us with the master plan for the
development of the property, which indicates
extensive development including a shopping center
and a complex of high-rise apartments. With the
implementation of such a plan, the security of
Agency operations would be seriously exposed to
the many types of espionage activities and the
modern devices available to glean information
concerning Agency activities. The acquisition of
this property would provide a security buffer zone
and eliminate the ever present threat from our
neighbors and their activities.
Another internal NSA document dated May 27, 1969
admitted into evidence discusses what zoning restrictions NSA
wanted for the remote portions of BWPA’s property:
within sight of the NSA Headquarters complex, the
threat of hostile collection activity is not diminished
greatly by distance. Nor does structure height and
orientation greatly effect the threat. Instead, it is
th2 covert or noncovert potential of the structure
which determines the degree of hazard.
On June 27, 1969 the Deputy Assistant Security of Defense
received a classified memorandum from the Chief Operation
Support Group discussing the acquisition of BWPA’s property:
If only the southern portion of Parcel 188 is
acquired, zoning restrictions will be necessary for
the remaining areas to limit the erection of
structures to those open to the general public,
e.g.,... wherein char and utility personnel have
; daily access to all internal areas.
On September 11, 1970, the Deputy Assistant Secretary of
Defense wrote the Senate Armed Services Committee:
He
The owners of this private property have just
announced that they intend to construct a high-rise
apartment and office building...If this were to
develop, modern day electronic and optical devices
would permit undesirable parties to snoop into the
highly classified activities at the National Security
(eenphasis added)
The Government’s internal documents and witnesses
establish that security concerns about constructiun of any building
on BWPA’s property were constant from 1968 through 1987. In
April 1968, NSA requested DoD to take steps to acquire the
property. NSA had DoD approval to acquire BWPA’s property in
1968. Repeated authorizations were obtained throughout the years.
From and after 1975, the Government also had legislative authority
to acquire the property on an emergency basis simply by
determining that it was required for national security. 10
U.S.C.A. § 2672(a) and 10 U.S.C.A. § 2803. Throughout the
period at issue, the Government had statutory and congressional
authority to acquire the property at any time because of NSA’s
determination in 1968 that the property should be acquired in the
10
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interest of national security.
Under the Uniform Real Property Acquisition Act, once
the Government determines it needs to acquire property it is
required to proceed expeditiously and not defer negotiations or take
any other action coercive in nature. 42 U.S.C.A. § 4651. Rather
than acquire the property expeditiously, for 19 years the
Government engaged in a course of conduct to ensure that no
buildings were built on BWPA’s property. The Government
influenced the State and County to alter their conduct toward
BWPA; and the Government used traffic, road and access issues
to thwart BWPA’s development. Each time BWPA was successful
in obtaining development approvals, the Government would target
for acquisition precisely the portion of the property BWPA had
planned to develop. The Government had many appraisals of the
property done over the years. Repeatedly the Government stalled,
delayed, negotiated in bad faith and offered BWPA less than the
appraised value set forth in the Government’s own appraisals.
From 1968 through 1987, the Government used its power and
resources to prevent development from occurring on BWPA’s
property.
On May 2, 1975, the Secretary of Defense at the behest of
the Director of NSA, directed the Secretary of the Army to oppose
construction of BWPA’s property; the memorandum said in part:
' private developers have submitted a proposal... for
extensive development of 252 acres adjacent to the
National Security Agency...The Director of the
Agency is concerned that this proposed
development which includes high-rise buildings,
commercial facilities and high-rise apartments may
interfere to an unacceptable degree with essential
operations of his Agency and represents a major
we eink we
The most effective approach, without resorting to
a comdemnation [sic] action, would be active
participation by the Fort Meade Command with
Anne Arundel County planning authorities. ..This
procedure would also be in concert with DoD
policy for installation commanders to exercise all
available local authority in reaching agreement to
forestall unacceptable development. Without such
active Post participation, the developers’ proposal
could significantly infringe upon the operational
capability of both the Post and the NSA/CSS.
a ee ee re ee
Despite the overwhelming documentary evidence that
established that the Government considered the construction of any
buildings on BWPA’s 255 acres a threat to national security, the
CFC found “NSA officials opposed development on the property
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because they believed such development would facilitate
surveillance of NSA operations." 29 Fed. Cl. at 673. The CFC
admitted that NSA preferred the property to remain vacant, but
despite the overwhelming evidence that the government wanted no
buildings on the property, the CFC concluded that "[NSA] found
that it could maintain security by other methods, such as restricting
building heights and location or limiting construction to buildings
with public access.” Id,
From 1968 to 1987, the Government engaged in a course
of conduct designed to maintain its security buffer. The
combination of the Government actions interfered with BWPA’s
reasonable investment-backed expectations, which were to develop
its property as a large, mixed-use town center in accordance with
its zoning. The proximate result of the Government’s actions was
that BWPA could not build buildings and was deprived of
substantially all economic benefit from its property from 1968 to
1987. The Government’s actions forced BWPA to sacrifice all
economically beneficial uses of is property for the common good -
~ national security interests.
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REASONS FOR GRANTING THE WRIT
I. A WRIT SHOULD ISSUE BECAUSE THE
COURT. OF APPEALS DECISION
AFFIRMING THE CFC IS IN DIRECT
CONFLICT WITH THE FIFTH AMENDMENT
AND THE SUPREME COURT’S DECISION
IN DOLAN v. CITY OF TIGARD
Recently, this Court in Dolan v, City of Tigard, No. 93-
518 (U.S. June 24, 1994), held that a taking had occurred where
the city wanted to impose a permanent recreation easement on
Dolan’s property. Although Dolan is clearly not on all fours with
BWPA’s case; the fact that this Court found a taking in Dolan
mandates the finding of a taking in the case of BWPA. In Dolan,
the landowner wanted to double the size of her hardware store to
17,600 square feet from 9,700 square feet and to pave a parking
lot. The city required that Dolan dedicate a 15 foot wide strip of
land adjacent to the flood plain as a pedestrian/bicycle pathway.
Id., slip op. at 4. The dedication encompassed approximately 10%
of the landowner’s property. The Court found, "Petitioner would
lose all rights to regulate the time in which the public entered onto
the Greenway, regardless of any interference it might pose with
her retail store. Her right to exclude would not be regulated, it
14
POD Re Oe Eas cat Steel SEL A eS
would be eviscerated.” Id., slip op. at 19.
Effectively, Dolan holds that if Government action interferes with
a landowner’s right to exclude others, a taking has occurred for
which compensation is warranted.
In the case of BWPA, for over 19 years, from 1968-1987,
the Government’s internal documents admitted into evidence, trial
transcript, and Government admissions establish that the secret
agenda was to ensure that BWPA’s 255 acres remained in its
undeveloped state. The Government’s own documents
acknowledge that an office park of up to 5 million square feet was
feasible. The 130 acres zoned for high rise apartments would have
permitted over 2,900 residences.
Each time BWPA got close to being able to develop a
portion of the property, the Government would threaten to take
that portion of the property. Not until 1990, after three years of
discovery battles, did BWPA learn that during all of these 19 years
that BWPA was trying to develop its property, secret NSA
documents revealed that the Government had no intention of letting
BWPA develop any of it. The NSA documents state such things
15
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doititelyli ain
BD ed id
as “we must ensure that no development occurs." Unlike Dolan,
the Federal Government did not try to acquire merely 10% of
BWPA’s property as a security buffer zone, it engaged in a
deliberate course of action for over 19 years to ensure that no
buildings were built anywhere on 255+ acres of BWPA’s
property. The CFC acknowledged that the Government preferred
that BWPA’s entire 255 acres remain vacant. The CFC also found
“It is clear that NSA desired to maintain a buffer zone around its
perimeter and preferred to control the development.” 29 Fed. Cl.
at 677. The CFC recognized only a fraction of the Government’s
intent when it stated:
NSA officials regarded a large-scale development
on the property as a threat to NSA’s mission.
NSA collects foreign intelligence for the United
States. Its operations are secret, and a foreign
government ‘would absolutely gain from
knowledge of what was going on inside the
facility.’ Officials feared that the development of
certain types of buildings so close to NSA would
compromise national security by facilitating
surveillance of NSA’s operations.
29 Fed. Cl. at 671.
The CFC ignored the Government’s secret and internal
documents admitted into evidence which establish that NSA
16
3
hy gt NO 9 nl ont A RY IER aie 8
RPT on
perceived that the real threat to national security was that spies
could live and work in any privately controlled structures and
could glean information from NSA’s top secret activities.
Essentially, the Government’s covert agenda that no private
structures be built on BWPA’s property eviscerated BWPA’s right
to build private buildings.*
The result was that BWPA could derive no economic
benefit from its undeveloped, vacant property while, at the same
time, the nation’s national security benefitted from the security
buffer created around NSA. BWPA was forced to bear a burden
that the public as a whole should have borne. First English
Evangelical Lutheran Church v. Los Angeles County, 482 U.S.
304, 319 (1987) (quoting _Armstrong v, U.S., 364 U.S. 40, 49
(1960)). The Government’s actions in thwarting all development
on BWPA’s property so the Government could maintain its
security buffer were tantamount to a regulation that eviscerated
*Secret NSA letter to Chief dated March 2, 1971 “threat is more
serious when there is an uncontrolled structure nearby which could be
apartment, would provide other opportunities for an intelligence agent..."
17
BWPA's right to build private structures on its property and
effected a temporary taking of landowner’s property for 19 years,
which is in direct conflict with the Supreme Court’s decision in
Dolan.
Il. A WRIT SHOULD ISSUE BECAUSE THE
COURT OF APPEALS DECISION
AFFIRMING THE CFC IS IN DIRECT
CONFLICT WITH THE FIFTH AMENDMENT
AND THE SUPREME COURT’S DECISION
IN LUCAS v, SOUTH CAROLINA COASTAL
COUNCIL
In Lucas, the Beachfront Management Act resulted in
requiring Lucas’ property to be left in its undeveloped state. Even
though there were subsequent amendments under which Lucas
could have applied for a permit for future construction, this Court
focused on Lucas’ claim for past deprivation. Lucas v. S.C.
Coastal Council, 112 S.Ct. 2886, 2889 (1992). This Court stated
that Government regulations that deny a property owner all
economically viable use of a landowner’s property require
compensation without the usual case specific inquiry into the public
interest advanced in support of the restraint. Id, at 2893. The
reasoning is, because the practical and economic consequence of
18
depriving a landowner of economically viable use of his land is the
same as if the land had been physically appropriated. The same
rule should apply to Government actions. If legitimate
Government actions deprive a landowner of all economically viable
use of his property, it is the same as if the land has been physically
appropriated.
In BWPA’s case, the combination of the Government
actions to block development were tantamount to regulating that
BWPA’s property remain in its undeveloped state. BWPA was
denied all economically viable use of its land. Effectively, the
Government actions in opposing, thwarting and blocking
development on BWPA’s undeveloped land was analogous to a
regulation which denied petitioner all economically beneficial and
productive use of petitioner’s land. See Id., Agins v. Tiburon,
447 U.S. 255,260 (1980); see also Nollan v. California Coastal
Comm’n, 483 U.S. 825, 834 (1987), Keystone Bituminous Coal
Assn, v, DeBenedictis, 480 U.S. 470, 495 (1987). And where the
Government’s actions are like a statute which regulates the uses
that can be made of property, said actions or statute "effects a
19
land...’" Keystone, 480 U.S. at 495 (quoting Agins v. Tiburon,
447 U.S. at 260) (emphasis added). BWPA’s economic loss was
as a direct consequence of NSA’s determination to ensure that no
buildings were built in the interest of national security. Each time
BWPA tried to develop some portion of the property, the
Government tried to acquire the very interest BWPA was trying to
develop. It is neither logical nor prudent for a developer to
continue to spend huge sums of money on developmental costs and
infrastructure when the government has advised the landowner that
it will take some interest in the property. See Benenson v. U.S.,
548 F.2d 939 (Ct. Cl. 1977). Essentially, BWPA was required to
keep his property in its undeveloped state for the public good — for
national security. As the Government’s own witness said — all
development posed a risk.‘ Once the Director of NSA had
*Q. Was NSA concemed about buildings being built on the subject
property? A. Absolutely. Q. Was there ever a time when NSA was
not concerned about buildings being built on the subject property? A.
I don’t recall at any point that somebody would not be concerned. Q.
Did NSA’s concern about buildings on the subject property extend to
high-rise office buildings? A. Absolutely. Q. What was the concem
about high-rise office buildings? A. Well, the utility of the building is
immaterial, whether it was an apartment building or office building. The
20
determined that the acquisition of BWPA’s property was in the
interest of national security, the Government’s threats to take the
property were always backed by the Government’s ability to take
the property based upon both statutory and emergency authority.
10 U.S.C. § 2672a, 10 U.S.C. § 2803.
Where a landowner is thwarted from building any buildings
on its property because such development would threaten national
security, the landowner has not simply suffered a diminution in
value but rather a total elimination of all value and a taking has
fact that there was a fixed location immediately adjacent to our property
was a threat. Q. Did it matter how tall the building was? A. The line
of sight is what matters. Q. So if the building could have line of sight
of any of NSA’ buildings, that’s what the concern was? A. Absolutely.
Q. Did the same apply to a shopping center? A. I think the operative
term is a fixed location. So if it’s a structure, a shopping center, a
building, you know, in my own mind it would be less of — certainly of
a technical security vulnerability threat because it would be a public
facility, but it was an uncontrolled facility. Q. So any building that had
line of sight of NSA was the type of development that NSA opposed? A.
It represented a potential for technical security vulnerability, yes. Q.
And the government did, in fact, want the property as a security buffer?
A. That’s correct. Q. Is it also true that the government didn’t want
buildings on the subject property? A. That’s correct. Q. And the
government wanted to take the property so buildings weren’t built on the
Property? A. That’s correct.
Czaplicki Deposition, January 25, 1992 at 31, 83, 84, 121, 122 (admitted
into evidence).
21
occurred. This Court in Lucas states: "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 beneficial uses in the name of the common good,
that is, to leave his property economically idle, he has suffered a
taking.” Lucas 112 S.Ct. at 2895. In this case, BWPA’s property
was kept economically idle for 19 years in the name of national
security. The lower courts decisions are in direct conflict with this
Court’s holding in Lucas and the Fifth Amendment; a writ should
issue.
fil. A WRIT SHOULD ISSUE BECAUSE THE
COURT OF APPEALS DECISION
AFFIRMING THE CFC IS IN DIRECT
CONFLICT WITH THE FIFTH AMENDMENT
AND THE SUPREME COURT’S DECISION
IN NOLLAN_v, CALIFORNIA COASTAL
COMMISSION
In Nollan, the California Coastal Commission in approving
a rebuilding permit imposed a requirement that the owners provide
lateral access across their property to the public. Nollan vy.
California Coastal Commission, 483 U.S. 825 (1987). This Court
22
held that without paying compensation, the government cannot
simply obtain an easement to serve some valid government
purpose.
The CFC, in ignoring the voluminous record of secret
Government documents, erroneously suggests that the Government
was not in fact trying to prevent all development, that it simply
wanted to limit development or restrict the height of development.
To buttress its conclusion, the CFC cites the fact that in the early
1970’s the Government was attempting to purchase a height
easement restricting development 190 feet above sea level. In
actual fact, the Government’s own documents establish that the
bulk of BWPA’s property was at an elevation in excess of 190 feet
above sea level and to impose such a height restriction was akin to
restricting virtually all development when BWPA’s zoning would
have allowed it to construct buildings in excess of 10 stories. The
CFC’s finding that "[wJhile NSA preferred the property to remain
vacant, it found that it could maintain security by other methods,
such as restricting building heights and location or limiting
construction to buildings with public access” is a legal basis for
23
reversing the CFC’s decision. 29 Fed Cl. at 673.
In BWPA’s case, the Government may have had a valid
governmental purpose for wanting to maintain a security buffer
around NSA. The Government also may have legitimately felt that
construction of buildings on BWPA’s property posed a risk to
national security. However, the Government does not have a legal
right to use its power and influence to block and oppose
development, to ensure that the property remain vacant, to restrict
and control development, without paying for that right. As this
Court stated in Footnote 2 in Nollan, "...the right to build on one’s
Own property - even though its exercise can be subjected to
legitimate permitting requirements - cannot remotely be described
as a ‘governmental benefit.’" Nollan, 107 S.Ct. at 3146 n.2.
BWPA’s right to build on its property should not have
been subject to height restrictions because of national security nor
should BWPA’s right to develop its property have been restricted
to constructing buildings only open to the public. The Government
was not conveying special benefits on BWPA’s property. BWPA
should have had an absolute right to build in accordance with its
a4
zoning established by local authorities.°
Even were it valid for the Government to limit the amount
of construction or restrict the height of construction to further the
Government’s national security interests, this Court requires a
logical nexus between the restriction and the security interest being
served or the restriction would be invalid under this Court’s
rulings in Nollan and Dolan. Since the Government’s own
documents throughout the years establish that the real threat was
that potential spies could live or work in private buildings on
BWPA’s property, restricting the height or location of buildings
had no logical nexus to the national security threat. A spy could
live in a one story house and still snoop into the highly classified
activities at NSA. Czaplicki, supra note 4, at 20-21. Moreover,
the Government cannot restrict size, location, height or type of
building on one individual’s property for the public good without
payment of just compensation.
“Had there been a published law in existence when BWPA acquired
its property that BWPA’s right to develop was restricted because of the
Property’s proximity to NSA, BWPA concedes there would have been no
taking. However, the Government has admitted that there never has been
such a law or regulation.
25
aaa
In this case, the character of the Government’s action and
the nature and extent of the Government’s interference with the
rights of BWPA were far more intrusive than that found in either
Nollan or Dolan.
IV. A WRIT SHOULD ISSUE BECAUSE THE
COURT OF APPEALS DECISION
AFFIRMING THE CFC IS IN DIRECT
CONFLICT WITH THE FIFTH AMENDMENT
AND THE SUPREME COURT’S DECISION
IN FIRST ENGLISH EVANGELICAL
LUTHERAN CHURCH vy. COUNTY OF LOS
ANGELES
The Court of Appeals decision in affirming the CFC
opinion is in direct conflict with this Court’s decision in First
English. In First English this Court held: "We merely hold that
where the government's activities have already worked a taking of
all use of property, no subsequent action by the government can
relieve it of the duty to provide compensation for the period during
which the taking was effective.” First English, 482 U.S. at 321.
In this case, for over 19 years the Government deliberately
engaged in a course of conduct to thwart the development of any
26
buildings on BWPA’s property because the Government had
secretly determined that the presence of any private buildings on
BWPA’s property posed a risk to national security. In 1987 when
BWPA was again about to start construction on an office building
and public utilities system, the Government finally took the fee and
filed a Declaration of Taking in the U.S. District Court. BWPA
filed a counterclaim for inverse condemnation for a temporary
taking from 1968 through 1987 that was transferred to the Court
of Federal Claims. The resulting judgment in the District Court
decision only compensated BWPA for the fair market value of the
unimproved land in 1987. This permanent taking of the fee did
not erase the temporary taking that occurred as a result of the
Government’s deliberate actions to maintain a security buffer for
19 years.
The CFC’s decision was clouded by the fact that BWPA
received money for the 1987 value of the undeveloped land.
Economic benefits of property directly relate to the period of
ownership. Income or economic productivity generated during the
period of ownership is based on the uses to which the property can
27
be put. When someone buys a property, the purchaser is paying
the seller for the right of purchaser to obtain the economic benefits
of the property in the future. When Government condemned the
fee, BWPA received the fair market value for its property in an
undeveloped state. The price being paid was based on what an
arms length buyer would pay an arms length seller for undeveloped
land based upon the future uses to which the property could be
put. The sum received by BWPA did not compensate BWPA for
the 19 years the land was held in an unproductive state because
NSA was engaged in a course of conduct designed to keep
BWPA’s property undeveloped. In Pennsylvania Coal v. Mahon,
260 U.S. 393 (1922), the regulation took the right to mine coal
under the surface of the land. NSA’s secret determination in 1968
that all structures on BWPA’s property posed a risk to national
security and its actions in furtherance of that objective effectively _
took BWPA’s right to build above the surface of the land. As
Stated in Pennsylvania Coal, “the right to coal consists in the right
to mine it...What makes the right to mine coal valuable is that it
can be exercised with profit." 260 U.S. at 414.
28
cere ae
oor
o~
What made BWPA’s property valuable was the right to
develop it to full density and to be able to build on it and to lease
it, to have private office buildings and residences. The fact that
the Government ultimately took the fee in 1987 does not extinguish
the prior taking from 1968 through 1987 during which time BWPA
could derive no economic benefit from its 255+ acres of land.
In this case, BWPA was doubly penalized. The property
was undeveloped due to the Government’s repeated efforts to make
sure that it remain that way. The Government systematically
thwarted Suvianeine of the property each and every time BWPA
had development plans. Not only did BWPA lose the economic
benefits that it would have derived from commercial development,
but additionally the Government was able to buy the unimproved
ground instead of the fully developed town center for which the
property was zoned. As early as 1968, when the Government was
negotiating for additional office space for NSA and BWPA was
about to construct office buildings, the Government acknowledged
in its secret documents that:
The security requirements of the Agency are such
that we must ensure against any commercial
29
development on this tract. Any effort at this time
to consider negotiating with the owners of this tract
for the construction of a leased facility would tend
to further encumber our negotiations to acquire the
property, as it would have a tendency to increase
the appraised fair market value of the now
generally vacant land.
Oct 14, 1968 letter from NSA to GSA.
The fact that the Government subsequently took this
property permanently does not relieve the Government from its
obligation to pay BWPA for the use of the property as a security
buffer for 19 years. As this Court has said, "a strong public desire
to improve the public condition is not enough to warrant achieving
the desire by a shorter cut than the constitutional way of paying for
the change.” First English, 482 U.S. at 2389 (quoting
Pennsylvania Coal, 260 U.S. at 416). BWPA agrees that the
Government had every right to prevent buildings on BWPA’s
property to maintain a security buffer around NSA. However,
once the Government determined in 1968 that construction of any
buildings on BWPA’s property posed a threat, the Government
should have told BWPA that it would never be able to build any
buildings on its property and the Government should have acted
30
expeditiously to take the property. Instead the Government
engaged in a course of conduct, much of it covert, intentionally
designed to ensure its goal of preventing all buildings and
achieving its goal of a security buffer at a private landowner’s
expense.
Even Justice Stevens’ dissent in First English recognized:
Regulations are three dimensional; they have depth,
width, and length. As for depth, regulations define
the extent to which the owner may not use the
property in question. With respect to width,
regulations define the amount of property
encompassed by the restrictions. Finally, and for
purposes of this case, essentially, regulations set
forth the duration of the restrictions. It is obvious
that no one of these elements can be analyzed alone
to evaluate the impact of a regulation, and hence
to determine whether a taking has occurred.
First English, 482 U.S. at 330.
The effect of the depth of the Government’s actions in this
case was that 255+ acres of BWPA’s property remained
undeveloped because the Government’s actions were calculated to
ensure that no development would occur on BWPA’s property.
As to width, the effect of the Government’s actions was to
limit, restrict and, in fact, preclude development anywhere on the
31
RR ae a orto ie. Su oe ae Re ee Re ee eae La eS ea
255+ acres of property. In the early years, BWPA had tried to
build a shopping center which met with Government opposition.
Later, BWPA submitted a site plan for apartment buildings. Only
after BWPA had obtained most of its county approvals did the
Government advise the county that the Government had a
congressionally approved project to acquire 75 acres of BWPA’s
property which just happened to encompass BWPA’s first phase of
development. The Government’s action required BWPA to revise
its entire site plan. Once the site plan was revised, the
Government tried to impose a height easement. At another time,
BWPA proposed to build an office building on another portion of
the property and again the Government threatened to take the
property. As the Government's internal documents and testimony
of its witnesses reveal, there was no place on BWPA’s property
where buildings could have been constructed without posing a
threat to national security. Czaplicki, supra note 4, 20-21.
As far as length, the Government’s actions in this case
continued for a period of over 19 years. Petitioner concedes that
the Government may have had legitimate Government concerns
32
about national security and may have needed a security buffer.
The Government may also have had a right to use BWPA’s
property as a security buffer for a period of years provided that the
Government paid for that right as mandated by the Fifth
Amendment. What the Government does not have the right to
do, is to use its Federal Powers and influence to use private
property as a security buffer in the interest of national security
in lieu of exercising its powers of eminent domain to avoid
paying the landowner just compensation.
The law established by the Constitution is that private
property shall not be taken without just compensation. Once
property is taken, even temporarily, no subsequent government
action can erase that taking. In First English, the fact that the law
was declared unconstitutional and landowner had property it could
develop did not eradicate the two year temporary taking when the
unconstitutional law was in effect. The facts in this case are even
more compelling. Even when the Government ultimately exercised
its power of eminent domain and took BWPA’s property
permanently, payment for the value of the property only
33
compensated BWPA for the loss of the use of the property from
the date of the taking forward. It did not compensate BWPA for
the temporary taking during the 19 years when BWPA could not
derive any economic benefit from the property because the
Government was engaged in a deliberate course of conduct
designed to ensure that no buildings were built on the undeveloped
property.
This Court in First English states “It is axiomatic that the
Fifth Amendment’s just compensation provision is ‘designed to bar
government from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as
a whole.’” First English, 482 U.S. at 318-319 (quoting Armstrong
v. ULS., 364 U.S. 40, 49 (1960)). This Court in First English
also found that "It is the owner’s loss, not the taker’s gain, which
is the measure of the property taken." Id, at 319 (quoting U.S. v.
Causby, 328 U.S. at 261). “Invalidation of the ordinance or its
successor ordinance after this period of time, though converting the
taking into a ‘temporary’ one, is not a sufficient remedy to meet
the demands of the Just Compensation Clause." Id, at 319. In
34
BWPA’s case, before NSA made its secret determination that
construction of any buildings on BWPA’s property posed a risk to
national security, BWPA had a legal right to build high-rise office
buildings and high-rise apartment buildings on its property. For
over 19 years, the Government took actions deliberately designed
to thwart all development on the 255+ acres. Those actions in
maintaining a security buffer effected a 19 year temporary taking
under this Court’s ruling in First English and under the Fifth
Amendment; and a writ should issue.
V. A WRIT SHOULD ISSUE BECAUSE THIS CASE
IS UNIQUE IN THAT PRIVATE PROPERTY WAS
TAKEN IN VIOLATION OF THE FIFTH
AMENDMENT IN FURTHERANCE OF NATIONAL
SECURITY INTERESTS WITHOUT PHYSICALLY
INVADING THE PROPERTY AND WITHOUT
DIRECTLY REGULATING THE PROPERTY
The Fifth Amendment to the Constitution does not define
the means by which property must be taken for the Fifth
Amendment to apply.
Although the Fifth Amendment does not define the means
used by the government to effect a taking, historically this Court
35
th siey
has focused on two areas — direct physical invasion or
appropriation and regulation. This case is unique in that the
Government effected a taking of private property for over 19 years
not by physical invasion and not by direct regulation. The Fifth
Amendment does not say that the only means of taking property is
by appropriation or regulation. In this case, the Government took
BWPA’s right to develop its vacant land by a combination of
actions designed expressly to ensure that no buildings were built on
BWPA’s property. The Government effectively regulated no
development of BWPA’s land by making a secret determination
that any development on BWPA’s property posed a security threat
because of the proximity of BWPA’s property to NSA.
On May 15, 1970, Melvin Laird, Secretary of Defense
advised the Directors of Defense Agencies that external influences
such as adjacent residential, commercial or industrial development
might interfere to an unacceptable degree with essential military
Operations. That memo authorized NSA to use its considerable
influence with local authorities to forestall unacceptable
development. The unacceptable development DoD was trying to
36
prevent was residential, commercial or industrial development on
privately owned property which might hinder military operations.
Essentially DoD was seeking a “military easement" on all private
property adjacent to military bases without having to resort to
condemnation. On May 2, 1975, the Secretary of the Army was
directed by the Assistant Secretary of Defense to block
development on BWPA’s property:
The Director of the Agency is concerned that this
proposed development which includes high-rise
buildings, commercial facilities and high-rise
apartments may interfere to an unacceptable degree
with essential operations of his Agency and
represents a major security threat...The most
effective approach, without resorting to a
comdemnation[sic] action, would be active
participation by the Fort Meade Command with
procedure would also be in concert with DoD
policy for installation commanders to exercise all
available local authority in reaching agreement to
forestall unacceptable development.
Letter from Albert Hall, Assistant Secretary of Defense, to
Secretary of the Army, May 2, 1975.
These documents establish that NSA in concert with other
Federal Agencies engaged in a course of conduct that was
calculated to prevent all development on BWPA’s property without
37
having to resort to exercising its power of eminent domain. As
stated in First English:
It has also been established doctrine at least since
Justice Holmes’ opinion for the Court in
Pennsylvania Coal Co, v. Mahon, 260 U.S. 393,
43 S.Ct. 158, 67 L.Ed. 322 (1922), that ‘[tJhe
general rule at least is, that while property may be
regulated to a certain extent, if regulation goes too
far it will be recognized as a taking.’ Id., at 415,
43 S.Ct., at 160. While the typical taking occurs
when the government acts to condemn property in
the exercise of its power of eminent domain, the
entire doctrine of inverse condennation is
predicated on the proposition that a taking may
occur without such formal proceedings... ‘It would
be a very curious and unsatisfactory result, if ...
it shall be held that if the government refrains from
the absolute conversion of real property to the uses
of the public it can destroy its value entirely, can
inflict irreparable and permanent injury to any
extent, can, in effect, subject it to total destruction
without making any compensation, because, in the
narrowest sense of that word, it is not taken for the
public use.”
First English, 482 U.S. at 315-317.
In this case, the Government’s absolute need for a security
buffer around its top secret NSA building required that the
Government take legitimate government action to ensure that
BWPA’s cate remain undeveloped. The Government had the
apparent and actual authority to take the property because of the
38
LVEF SIFT eer SPS PV ere a ware”
threat the development posed to national security.
The Government and the CFC suggest that the Government
was simply opposing development as a neighboring landowner.
The Government was not simply opposing one particular type of
development nor was it objecting to a noxious or nuisance use. A
neighboring landowner does not have the clout to oppose all forms
of development. A neighboring landowner cannot tell an adjacent
landowner that if he refuses a below market offer to purchase, that
the land will be condemned. A neighboring landowner does not
have the power of eminent domain. A neighboring landowner can
not secure agreement from the County Planning Authorities to
“drag their feet" with respect to approvals; nor can a neighboring
landowner require that a site plan be redrawn to accommodate the
75 acres it is going to condemn (but never does). A neighboring
landowner cannot summon the enormous power and influence of
DoD to prevent development. A neighboring landowner cannot
use its proposed expansion as justification to prevent all
development on his neighbor’s adjoining tract. A neighboring
landowner cannot dictate to the State, the future design of the road
39
lhe ~ BSP eA ATT. BNET AR PS PIS LETT TIS AP ON ITED al TS LWT
| SE w . OY ewe ww eee Ce aT
OR ae Se aes a PO HE ews Eee
network that would eliminate its neighbor’s access to the main
road. The evidence in this case established that the Government
employed all of these tactics to ensure that no buildings were built
on BWPA’s 255+ acres. NSA’s objective was to stop all forms
of development for as long as possible so that the Government
could delay exercising its power of eminent domain.
The combination of the Government’s actions carefully
orchestrated at the highest levels of NSA and DoD were
intentionally designed to ensure that no development occurred on
BWPA’s vacant property expressly because NSA wanted a security
buffer around NSA and NSA had determined that any buildings on
BWPA’s property posed a threat to national security. For over 19
years the Government’s actions in ensuring that no buildings were
built forced BWPA to hold its property in its undeveloped and
economically idle state at an enormous economic cost to BWPA.
The lower courts failed to acknowledge that a taking under the
Constitution can occur without physical invasion and without
regulation if the Government through its legitimate actions
thwarted development on private property in the interest of national
40
a ee eee “—.o s a we wf se wwe Re Se a eas RE TRE, RE Bi
rT ie F a Se es
“See os tw &
we *
2 ¥ =
security. A writ should issue because the Government effected a
taking of private property in the interests of national security
without directly regulating the property.
VI. A WRIT SHOULD ISSUE BECAUSE THE
FEDERAL GOVERNMENT INTENTIONALLY
THWARTED DEVELOPMENT ON VACANT LAND
SO THAT THE GOVERNMENT COULD DELAY
EXERCISING ITS POWER OF EMINENT DOMAIN
AND LATER ACQUIRE THE PROPERTY BASED
ON sS‘TTS REDUCED VALUE £i'IN SITS
UNDEVELOPED STATE IN DEROGATION OF
THE FIFTH AMENDMENT
The CFC found that "[wJhile NSA preferred the property
to remain vacant, it found that it could maintain security by other
methods, such as restricting building heights and location or
limiting construction to buildings with public access." 29 Fed. Cl.
at 673. This finding on its face is a legal basis for reversing the
court’s decision and establishes a taking. This finding recognizes
that the Government, in furtherance of its security objective,
interfered with BWPA’s reasonable investment-backed
expectations. It is uncontroverted that when BWPA acquired
the property there was no published law, regulation or statute
at
OY PF ESE BRET, GPE EY ie 2 SEN ESA WY
2 eR Ca ow On ee a ee eee eee oe
—— * = . aes od =. € _? ww t ~ ? iS ee 2 SR: od
~ or ~ , Ser wes & t sg a ak & ° = em Ras F
- 4 <n , ae hae =
ee eae eee) 8 eee) ee ae
that would have prohibited development of the property
because of its proximity to NSA, nor has such a law been
enacted. NSA has no authority to restrict design or location of
buildings on privately-owned property, nor does NSA have
authority to limit construction on privately owned properties to
buildings with public access. The Government has no authority to
rezone property or to regulate the use of private property absent
exercising its authority to condemn. Restrictions on building
heights and restricting location and use of buildings are solely the
province of the local zoning authorities. Village of Euclid et al.
vy. Ambler Realty Co., 272 U.S. 365 (1926), Village of Belle
Terre et al. v. Boraas, et al., 416 U.S. 1 (1974), Agins v.
Tiburon, 447 U.S. 255 (1980). Even zoning authorities do not
have the right to require an owner of private property to construct
only buildings in which NSA can constantly monitor the
inhabitants.°
® No legitimate authority authorizes the Government to monitor the
activities of its citizens within the confines of privately owned homes
without a search warrant. U.S. Const. amend. IV. “Among a citizen’s -
including a property owner’s - most cherished rights is the right to be let
alone.” Hendler v. U.S., 952 F. 2d 1364, 1374 (Fed. Cir. 1991).
42
Yet the Government admitted that if it could not acquire
the entire property, it wanted zoning restrictions imposed to limit
construction of buildings to those open to the general public. NSA
had authority in the interest of national security to condemn air
rights or condemn all or a portion of the property provided the
Government paid for the interest it was taking. U.S. v. General
Motors, 323 U.S. 373 (1945). Instead of directly condemning
those portions of the property it needed for its security buffer, the
Government successfully impeded all development on the property
through a combination of actions, some overt, some covert, some
legitimate and some improper, without paying for the restrictions
that it needed in the interest of national security.’ BWPA was
unaware of the Government’s objectives throughout the years in
issue because NSA never told BWPA it did not want any buildings
on BWPA’s property. The Government documents that establish
7Under Uniform Real Property Acquisition Act, once the Government
determined that it needed to acquire the property, the Government was
required to do so expeditiously. The statute does not give a landowner
a right to sue under the statute; so BWPA could not file suit when the
Government repeatedly threatened condemnation over the years. 42
U.S.C. § 4651 et.seq.
43
the Government’s agenda were secret and only later came to light
during discovery. BWPA knew that it owned high-density,
residentially-zoned land in a location where there was an incredible
market for residential housing. The Government never said to
BWPA, "You are wasting your time and money, we will never let
you build any residential structures. Build something else.” The
Government never did that because NSA did not want BWPA to
build anything; NSA wanted the property vacant. The longer NSA
could keep BWPA’s property vacant without paying for its security
buffer, the less costly it was for NSA because they would not have
to pay for any improvements on BWPA's property.
The focus of many Government actions from 1968 to 1987
was to ensure that no privately controlled buildings were built and
to ensure that NSA would have complete access to monitor all
activities within any buildings. One strand of the bundle of
property rights inherent in ownership of residential property is that
the owner has the right to exclude others. U.S, v. General
Motors, 323 U.S. 373 (1945). The general public does not have
a right of access to private residences. Government actions to
a4
limit construction of buildings to those with public access
effectively regulated no development on 203 acres of BWPA’s
property zoned for residential use. By interfering with BWPA’s
right to develop its residential property, the Government denied
BWPA its ability to realize any economic benefit from its
undeveloped residentially zoned property from 1968-1987.
Serving the public interest by keeping land in a wilderness state
should not have been done at BWPA’s expense. Althaus v. U.S.,
7 Cl. Ct. 688 (1985).
All of BWPA’s commercially zoned property was
immediately adjacent to NSA’s approximately 5 million square foot
main complex. Due to the proximity of the commercially zoned
property to NSA’s main buildings, NSA determined that any
buildings with a line of site to NSA’s buildings would be a threat
to national security, and “any fixed location immediately adjacent
to our property was a threat." Czaplicki, supra note 4, at 20-21.
All construction allowed by BWPA’s zoning posed a threat
to NSA’s operations because all privately owned structures,
whether they were residential or commercial, could be closed to
45
the general public. If BWPA could not build any buildings, it
could have no economically viable use for its property. Loveladies
Harbor, Inc. v. U.S., 21 Cl. Ct. 153 (1990). NSA achieved its
covert objective to ensure that no “fixed locations” were built
anywhere on the commercially zoned land and that no structures
that could be closed to the general public were built anywhere on
BWPA’s property. The Government’s right to restrict or limit
BWPA’s use of its property in the interest of national security was
conditioned upon payment of just compensation for the period
during which the Government deprived BWPA of its right to
derive economic benefit from its property. U.S. Const. amend.
V.; First English Evangelical Lutheran Church of Glendale v, Cty,
of Los Angeles, Cal, 482. U.S. 304 (1987), Lucas v. S.C, Coastal
Council, U.S.__, 112 S. Ct. 2886 (1992).
The Fifth Amendment of the Constitution provides that
private property shall not be taken without payment of just
compensation. “This basic understanding of the Amendment
makes clear that it is designed not to limit the governmental
interference with property rights per se, but rather to secure
46
compensation in the event of otherwise proper interference
amounting to a taking. Thus, governmental action that works a
taking of property rights necessarily implicates the ‘constitutional
obligation to pay just compensation.”” First English, 482 U.S. at
315.
As long as the Government was successful in opposing all
development on BWPA’s property so that no buildings interfered
with NSA’s “security buffer", NSA had no need to use its funds
to acquire BWPA’s property by eminent domain. See Letters
dated May 15, 1970 and May 21, 1975, supra at 19. Were this
Court to rule that no taking occurred, it would sanction action
by the Government to take all forms of actions to stop
development short of actually acquiring property so that the
Government never has to pay landowners for property being
used for the public good, in violation of the Fifth Amendment.
7
VII. THE COURT OF APPEALS IN AFFIRMING THE
CFC DECISION ERRED AS A MATTER OF LAW
BY FAILING TO RECOGNIZE THAT BOTH
LEGITIMATE GOVERNMENT ACTIONS AND
GOVERNMENT ACTIONS NOT LEGITIMATE CAN
AFFECT A TAKING IF THE ACTIONS DEPRIVE
THE LANDOWNER OF SUBSTANTIALLY ALL
ECONOMIC USE OF PROPERTY
The CFC was required to make a factual determination of whether
there was a taking based on three factors:
1) the character of the Government’s actions,
2) the degree to which the Government actions
interfered with reasonable investment-backed
expectations, and
3) the economic impact of the Government actions on
BWPA.
Connolly v. Pension Benefits Guar, Corp., 475 U.S. 211 (1986).
In cases where that test has been applied, courts have
examined all of the Government’s actions; actions that were valid
as well as those that may have been legally questionable. See
generally, Drakes Bay Land Co. v. U.S,, 424 F.2d 574 (Ct. Cl.
1970), Benenson v, U.S., 548 F.2d 939 (Ct. Cl. 1977), Althaus v.
ULS., 7 Cl. Ct. 688 (1985). Even a regulation that does
+8
substantially advance legitimate state interests can effect a taking.
Pennsylvania Coal v, Mahon, 260 U.S. 393 (1922), Lucas v, S.C.
Coastal Council, _ U.S. __, 112 S. Ct. 2886 (1992).
Instead of correctly applying the three prong test to
determine whether a taking had occurred, the CFC got confused by
Agins v. Tiburon, which requires a court to examine whether a
proposed regulation advances a legitimate state interest. Agins v.
Tiburon, 447 U.S. 255, 260-261 (1980). In applying the first part
of the Agins test to this case, the CFC erroneously examined each
of the Government’s actions to determine whether or not the action
was legitimate. See 29 Fed. Cl. at 677. That analysis was
irrelevant because even legitimate actions effect a taking if they
deny the landowner economically viable use of its land. The CF .
considered only those actions that it deemed not to be legitimate in
its determination of whether a taking had occurred:
Some of the government’s actions may not fall under the
rubric of legitimate actions. Government officials wielded
substantial influence over the state highway planning
decisions and intended at one point to use highway issues
to persuade county officials to reject the development.
Government officials also cultivated a relationship with one
county zoning official in order to enlist her support against
the development. Assuming, arguendo, these actions
49
impaired BWPA’s ability to develop its property, they
could support a taking claim. The court will next examine
the extent to which these Government actions interfered
with BWPA’s reasonable investment-backed expectations.
29 Fed. Cl. at 680.
It is clear that the CFC considered only those Government
actions involving highway issues and the influencing of county
officials to determine whether those two activities impaired
BWPA’s ability to develop its property. The law requires the
court to examine all of the Government actions to determine if
together they impaired BWPA’s ability to use its property.
The CFC acknowledged that NSA wanted a security buffer
around NSA. 29 Fed. Cl. at 673. The CFC considered some of
the actions taken by the Government, such as the repeated threats
to take the property, the almost continuous “negotiations” to
acquire the property, opposing development and the like and
labeled them "legitimate." The CFC ignored the impact of these
actions on BWPA’s ability to develop its property, because they
were legitimate government action. The CFC disregarded the fact
that legitimate Government actions can effect a taking if the
Government action impacts upon the reasonable investment-backed
50
expectations of the landowner by denying the landowner all
economically beneficial or productive use of land. Lucas v. S.C.
Coastal Council, 112 S. Ct. at 2894.
Legitimate Government actions that deny an owner
economically viable use of his land constitute a taking for which
compensation is warranted. First English Evangelical Lutheran
Church of Glendale v, Cty, of Los Angeles, 482 U.S. 304 (1987),
Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922). Even if all of
the Government actions are legitimate, a taking occurs if the
Government’s actions deprive the owner of all economically viable
use of its property. Lucas v. S.C. Coastal Council, 112 S. Ct.
2886 (1992). In the present case, the Government’s actions
deprived BWPA of all economically viable use of its property.
Had the CFC examined the evidence in light of whether all of the
Government actions, both legitimate and not legitimate, had
deprived BWPA of economically beneficial use of its property, a
taking would have been found.
51
Vil. THE WRIT SHOULD ISSUE BECAUSE THE
LOWER COURTS EXAMINED EACH
GOVERNMENT ACTION IN ISOLATION TO
DETERMINE WHETHER A SPECIFIC
GOVERNMENT ACTION IN AND OF ITSELF
PREVENTED BWPA FROM DEVELOPING ITS
PROPERTY INSTEAD OF CONSIDERING THE
IMPACT OF THE TOTALITY OF THE
GOVERNMENT ACTIONS UPON LANDOWNER’S
REASONABLE INVESTMENT-BACKED
EXPECTATIONS
The CFC was required to examine the impact of all of the
Government actions as a whole. Instead, the court examined each
of the Government’s actions separately and concluded that each
specific action alone did not prevent BWPA from developing its
property. The CFC’s faulty analysis is analogous to a murder
mystery starring a bungling detective. The detective finds a dead
man with a bullet hole in his abdomen, an arrow in his chest and
a gash in his head. The detective also finds a letter threatening to
kill the man. The detective determines that all of the wounds were
inflicted by one person. The medical examiner concludes that
none of the wounds in and of themselves could have killed the
man. Should the medical examiner conclude the man was not
murdered?
52
In this case, secret documents establish that the
Government wanted to ensure that no buildings were built on
BWPA’s property. The Government wanted to kill all
development. The Government influenced county officials,
threatened to condemn the property and used traffic issues to
impede development. The Government used Army influence to
forestall development. The CFC concluded that since none of the
individual actions per se prevented BWPA’s development, there
was no taking. As a matter of law that is wrong. Each action by
the Government was calculated to impede development; the
combination of the actions killed BWPA’s development.
The overwhelming evidence establishes that the totality of
the Government’s actions in furtherance of its secret objective of
maintaining a security buffer interfered with BWPA’s reasonable
investment-backed expectations of developing its property in
accordance with its zoning. Some of the Government’s conduct
was overt, some of it was covert. NSA with the backing of DoD
had an enormous arsenal to carry out its objective to ensure that no
buildings were built on BWPA’s property. The combination of all
53
of the Government actions for over 19 years, repeatedly
threatening to take property, influencing county officials, impeding
development, using traffic issues, as well as other actions - all in
furtherance of the Government’s goal to keep a one and a half mile
radius around NSA free from development - interfered with
BWPA’s reasonable investment-backed expectations.
In the narrowest sense, the CFC found that no single
Government action in and of itself actually prevented all
development. That may be the case, but it begs the question.
There is nothing in the Constitution or in any of the case law that
says that one single act must effect a taking. The CFC suggests
that the Government did not delay in taking, despite the fact that
nineteen years had passed since the Government first decided to
acquire the property. The CFC suggests that if BWPA had been
more aggressive in developing, the taking would have occurred
sooner. In none of the cases where this Court has found takings
has the landowner had to force the taking to establish the fact of
taking. See generally, Benenson V. U.S,, 548 F.2d 939 (Ct. Cl.
1977).
At another point the CFC suggests that NSA never really
believed that the property could be developed so the Government
really had no need to take the property. It defies logic that high
level NSA and DoD officials spent their time carefully
documenting the threat to national security posed by buildings on
BWPA’s property if development on BWPA’s property was
deemed not to be feasible. It is also surprising that at trial many
experts testified that but for NSA interference, BWPA’s property
would have been developed.
A writ should issue in this case because the Government
intentionally interfered with Petitioner’s private property rights for
19 years so that the general public could benefit from enhanced
national security. In so doing, the Government deprived BWPA
of any economically viable use for his property. The Government
is required under the Fifth Amendment to compensate BWPA for
the loss of the use of the property for the period of interference
whether that interference was by regulation, a single action or a
combination of actions.
55
CONCLUSION
For the reasons set forth above, a writ of certiorari should
issue to review the judgment and opinion of the Court of Federal
Claims and the Court of Appeals in this matter.
DATED: December? 4 1994 Respectfully submitted,
@ 2 Co me Bi
C. Elyse Vinitsky
Attorney for Petitioner
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 19 _
No.
BW PARKWAY ASSOCIATES PARTNERSHIP,
| PETITIONER,
vs.
THE UNITED STATES,
| RESPONDENT.
PROOF OF SERVICE
: I, C. ELYSE VINITSKY, do swear or declare that on this
; date, Decent v2 2, 1994, pursuant to Supreme Court
Rules 29.3 and 29.4, I have served three (3) copies of the attached
PETITION FOR A WRIT OF CERTIORARI on each party to the
above proceeding, or that party’s counsel, and on every other
b person required to be served by depositing an envelope containing
é the above documents in the United States mail properly addressed
; to each of them and with first-class postage prepaid:
' The names and addresses of those served are as follows:
Solicitor General, Department of Justice, Washington,
D.C. 20530
OP wd Ne
C. Elyse Vinitsky
APPENDIX A
a serene t PEE AEE OOM ONE
B.W. PARKWAY ASSOCIATES LIMITED
PARTNERSHIP, Plaintiff,
Vv.
The UNITED STATES, Defendant.
No. 539-89L.
United States Court of Federal Claims.
October 15, 1993.
C. Elyse Vinitsky, Bethesda, MD, and Daniel G. Grove,
Washington, DC, for plaintiff. Christine M. Sorge, of counsel.
Alan Brenner, U.S. Dept. of Justice, Land and Natural Resources
Div., and Greg Mack, Nat. Sec. Agency, for defendant.
p. 670 of the opinion
OPINION
MARGOLIS, Judge.
: This takings case is before the court for final judgment
after a four-day trial. The plaintiff, B.W. Parkway Associates
4
("BWPA"), is a partnership that owned property adjoining the.
National Security Agency ("NSA"), a United States Depart-
A-l
571 of # ‘r
ment of Defense installation. The plaintiff alleges that the
defendant, the United States, acting through NSA effected a Fifth
Amendment taking by preventing BWPA from developing its
property. The defendant argues that the plaintiff failed to develop
the property either because of its own failures or because of
obstacles to development. After reviewing the entire record, this
court holds that the plaintiff has not met its burden of proof.
Accordingly, the court directs entry of judgment for the defendant.
FACTS
ys Background
During the early 1960s, Melvin J. Berman ("Berman"), a
real estate developer, purchased several tracts of contiguous land
located at the intersection of two highways, Maryland Route 32
(also known as Savage Road) and the Baltimore-Washington
Parkway ("BW Parkway"). These tracts, which totalled almost
260 acres, came to be known collectively as “the Berman tract" or
A-2
"Colony Fairfield.” ' The Berman tract was bordered on the west
by the BW Parkway, on the south by Route 32, on the east by Fort
George G. Meade, a Department of Defense facility, and on the
north by privately owned vacant land. The attached map from
plaintiff's trial exhibit (P’s ex.) 89 shows the property’s location
and road network. Together with his partner, Jack Pollin, Berman
formed BW Parkway Associates, a limited partnership, to develop
the property. BWPA planned a mixed-use development, including
commercial office buildings, retail establishments, high-rise
apartments and single family homes.* Throughout the period at
issue, though, the only tenants of the property were a motel, gas
station and doughnut shop, and the remainder of the property was
vacant.
The land is located in Anne Arundel County, Maryland.
The Anne Arundel County government zoned it for a combination
‘The court will generally refer to the subject property as “the
property.” R
"During the period at issue, Berman bought out his partners in the
Pollin family; thus, the court will refer principally to the activities of
Berman and his son, Dennis Berman.
A-3
re er ee 6) ENB SoA 0: , . ast
Lite acwck elses Dem Baie tele Ras
of commercial and residential uses. Approximately 203 acres were
zoned for residential uses. Up to 53 acres were zoned for high-
density commercial uses. BWPA’s development plans called for
approximately 3000 residential units, 750,000-1,000,000 square
feet of office space, 150,000-200,000 square feet of other
commercial uses and a 250-500 room hotel.
Dennis Berman testified that BWPA regarded the location
of the property as extremely important. The property lay between
three population centers: Baltimore, Maryland; Washington, D.C.;
and Annapolis, Maryland, roughly equidistant from Baltimore and
Washington. Moreover, two major highways, Route 32 and the
Baltimore Washington Parkway, intersected at the property, and
two other major highways U.S. Route 29 and Interstate 95, ran
nearby. The record reflects that real estate development between
Baltimore and Washington was “booming” during the period at
issue.
| Berman was particularly interested in the property because
of its proximity to a large federal agency. The National Security
Agency, a U.S. Department of Defense facility and tenant of Fort
AA
nent
Hiker” jenn
George G. Meade, adjoined the property to the east. NSA
employed tens of thousands of persons from 1967-1987.
According to Dennis Berman, having NSA next door was like
“having a city next door. And this city needs services. All those
people need a place to live, ... a place to shop." Trial Transcript
(Tr.) at 43. BWPA considered the tract "the number one property
in the [Baltimore-Washington] corridor.” Id.
NSA officials regarded a large-scale development on the
property as a threat to NSA’s mission. NSA collects foreign
intelligence for the United States. Its operations are secret, and a
foreign government “would absolutely gain from knowledge of
what was going on inside the facility." Tr. at 699. Officials
feared that the development of certain types of buildings so close
572 of t ~
to the NSA would compromise national security by facilitating
surveillance of NSA’s operations.
BWPA never developed the property. In 1987, NSA
condemned the property and paid BWPA more than $21 million.
That award did not compensate BWPA for the value that
A-5
ie tati ERR es
development could have brought prior to the taking. BWPA
alleges that, from 1968 to 1987, the NSA actively prevented it
from developing the property in order to maintain a security buffer
zone. According to BWPA, NSA benefitted from keeping the
property underdeveloped without compensating BWPA. NSA does
not dispute that it opposed the development, but contends that it
did nothing improper. NSA argues that typical obstacles to
development, such as imadequate highway access and
infrastructure, impeded BWPA’s plans for the property.
The issue before this court is whether the government’s
conduct during the period 1968-1987 constituted a taking of
property without compensation. The parties dispute several factual
issues: the extent to which BWPA tried to develop the property;
the feasibility of installing water and sewer systems on the
property; and the nature of the government’s opposition to
development of the property. The court finds the following facts.
II. BWPA’s Efforts to Develop the Property
BWPA attempted to develop the property from 1967 to
1987. Developing unimproved land is a long, complex process.
A-6
Several county agencies must approve aspects of a project,
including water and sewer access, storm drains, roads, wetlands,
flood plains, and zoning, before construction can begin. All such
approvals must be current simultaneously for a developer to start
work legally. It can take a developer several years to obtain
approvals for a large-scale project.
BWPA planned the development and attempted to ascertain
the feasibility of water and sewer systems over a period of years.
Starting in 1967, BWPA hired engineering consulting firms to
consider methods of providing water and sewer service, improving
highway access to the property, and preparing subdivision plats.
These efforts continued in the 1970s. BWPA also began acquiring
approvals from various local government offices.» BWPA won
*Until 1985, Anne Arundel County had a three-stage process for
reviewing planned developments. The first stage, called the sketch plan,
required the developer to propose a "fairly detailed concept plan,”
showing a plan for using the land, including the location of buildings and
infrastructure. Tr. at 627. At the sketch plan stage, several county
offices reviewed the plan to determine if it “had a possibility of being
approved; what county or state activities had the possibility of impacting
on the development of the site, and what the developer was going to have
to address in the additional planning review processes." Tr. at 627-28.
a traffic impact study, and other studies. The developer had to prepare a
final plan within one year after approval of the preliminary plan.
A-7
sketch plan approval in December 1971, but did not prepare a
preliminary plan. Thus, the sketch plan approval lapsed. From
1972 through 1974, BWPA worked with county officials to gain
approval to install an interim sewage treatment plant on the
property. The county granted approval in October 1974.
Thereafter, BWPA sought estimates for site development to build
an apartment building, an office building, and a water supply and
waste disposal system. In 1975, BWPA hired an architect to
design the buildings. From 1968 to 1975, BWPA officials
negotiated with government officials to sell various interests in the
property or exchange it for government-owned land.
In 1979, BWPA negotiated with at least one developer to
form a joint venture to begin construction. By early 1979, BWPA
again submitted a sketch plan proposal, and in August 1980,
BWPA again gained sketch plan approval. BWPA officials
actively monitored the state highway planning process and
provided input.
BWPA came closest to beginning construction when it
applied for and, in May of 1986, received a building permit from
A-8
Anne Arundel County. In 1986, BWPA planned
673 of tt i
to join the Russett Joint Venture to build water and sewage
facilities, and its participation in the joint venture remained a
possibility until the government took the property in 1987. Thus,
the record shows that BWPA made repeated efforts to overcome
obstacles to developing its property, particularly during 1967-1975
and 1979-1987.
IT, Feasibility of Water and Sewer Access
The court finds that water and sewer access to the property
were feasible during the period at issue. In 1967, a consulting
firm concluded that BWPA could build permanent or temporary
water and sewer systems on the property. BWPA won county
approval to build water and sewage treatment facilities in 1974.
By 1986, BWPA had concluded an agreement with other
developers to form the Russett Venture to build common water and
sewer systems. Nevertheless, consultants’ reports and expert
testimony establish that it would have taken BWPA several years
to complete lines to serve the entire development.
A-9
A ee OE
eS) +“ a
Government officials genuinely doubted that BWPA could
solve its water and sewer access problems. As early as February
1971, NSA officials stated that “the owner of the property will
obviously have difficulty in the development of his land since
water and sewage are a problem (he cannot get across Government
property without permission) and the fact that he has only one
access/egress to public roads.” P’s ex. 82. Government officials
continued to believe that these obstacles prevented development as
late as April 1986.
IV. The Government’s Actions
A, Early NSA Efforts to Purchase Interests in the Property
NSA officials opposed development on the property
because they believed such development would facilitate
surveillance of NSA operations. NSA performed several technical
vulnerability studies of the property to assess the threat posed by
development of the property. NSA officials concluded that the
best way to protect NSA security would be to maintain a security
buffer zone around the perimeter of NSA property. While NSA
preferred the property to remain vacant, it found that it could
A-10
;
maintain security by other methods, such as restricting building
heights and location or limiting construction to buildings with
public access.
Starting in April 1968, NSA attempted to acquire the
property by exchanging government-owned real estate with BWPA.
The General Services Administration ("GSA") represented NSA in
negotiations with BWPA. GSA appraised the value of the property
at $5,000,000. BWPA disagreed with the government’s appraisal.
By October 1969, GSA concluded that BWPA’s estimate of the
value of its property was “inflated,” therefore "further efforts to
effect an exchange [were] hopeless." P’s ex. 49. Government
representatives again approached BWPA about an exchange of
property in June 1971, but Jack Pollin declined on behalf of
BWPA.
NSA tried to acquire limited interests in the property. In
1970 NSA tried to purchase 75 acres of the property and an aerial
easement on the rest. These efforts continued into 1971, but NSA
was unable to obtain full funding for the purchase.
At the same time, NSA officials voiced opposition to the
A-11
development to county officials. In August 1970, Marion McCoy,
the County Planning and Zoning Officer, gave NSA information
about BWPA’s progress in obtaining county approvals for
development. She explained that county “[zjoning people have
been “dragging their feet’ because they hope that NSA will buy the
land in question.” She promised to "‘drag her feet ’ if [NSA were]
interested in the land." P’s ex. 62. During this period, NSA
attended county planning meetings and kept abreast of development
efforts. NSA’s Chief of Installations and Logistics mentioned that
"I don’t think we should let an opportunity slip by to officially
advise Anne Arundel of our concern for the construction of Colony
Fairfield Apartment Complex adjacent to NSA." P’s ex. 118.
There is some evidence that McCoy opposed the development.
574 of the opini
NSA sought an aerial easement in April 1972 to cover 136
acres of the property. In November 1972, the Army Corps of
Engineers ("COE"), representing NSA, opened negotiations with
BWPA. NSA and COE believed that unresolved conditions
rendered the prospects for developing the property uncertain,
A-12
including changes in zoning, proposed highway improvements, and
continuing problems with access to the property. Negotiations
continued into January 1974. Each side appraised the value of the
property very differently, and valuation was complicated by
proposed zoning changes. NSA and COE officials ultimately
concluded that it would be too costly to acquire the property either
by negotiation or by purchase.
After the failure of negotiations, NSA shifted its strategy.
The government continued to — that it would be difficult for
BWPA to develop its property. NSA officials agreed to terminate
negotiations with BWPA, but to “be alerted to any proposed
development by the owners and ...take necessary action to impede
any development not harmonious to the area." P’s ex. 200.
Officials instructed that "[a]ny structure that may create a nuisance
or hazardous situation should be opposed by the Government in its
Capacity as a property owner.” Jd. Additionally, NSA officials
planned to contact McCoy concerning “the Government’s position
and possible courses of action, if development of property creates
adverse conditions.” Id.
A-13
There is evidence that NSA planned to impede the
development on the property by cultivating a relationship with at
least one Anne Arundel County official and by using traffic
concerns as a basis for its opposition. At a subsequent meeting,
government officials recommended that “Fort Meade pursue a
position that additional vehicular traffic resulting from occupants
of developed enterprises on the [property] would add to a problem
which now exists on the Fort Meade/NSA/CSS’s traffic
capability.” P’s ex. 202. NSA planned to discuss NSA’s concerns
with McCoy for future development primarily because of an influx
of traffic, to invite McCoy to NSA "as a prestige factor to express
the appreciation of the Agency for her assistance," and to request
the Secretary of Defense to instruct the Secretary of the Army to
oppose construction of the property adjacent to NSA/Fort Meade.
Id.
At least initially, NSA followed these plans. COE official
Barry Frankel met with McCoy on April 2, 1975, and discussed
the Agency’s position concerning development on the property.
NSA officials planned to actively oppose BWPA’s development at
A-14
county public zoning hearings.
B. NSA’s Involvement in Traffic Issues
The court finds that NSA became deeply involved with
state officials in traffic planning issues. Starting in 1979, NSA
Officials attended public meetings and advised state highway
planners on the Patuxent Freeway project.‘ NSA officials actively
monitored the Maryland State Highway Administrations’s ("SHA")
progress in developing alternative routes for the Patuxent Freeway,
and in 1981 pressed for meetings with Maryland officials in order
to affect the decisions. Commencing in the fall of 1981, NSA and
Fort Meade officials worked very closely with SHA, holding
frequent meetings to work out route alternatives. State officials
attempted to satisfy NSA and Fort Meade desires with respect to
the highway. In October 1982, an MDOT official stated that
“coordination will continue after the [public] hearing to assure that
“The Maryland Department of Transportation ("MDOT") planned the
Patuxent Freeway to traverse the county east to west and approach the
NSA complex. In June 1979, MDOT began to study proposals for
locating the freeway and sponsored public meetings to gather information.
The exact location of the highway was the subject of much debate and
controversy.
A-15
Fort Meade’s concerns are adequately resolved in order that we
may develop a formal agreement between the State Highway
Administration and the Department of the Army." P’s ex. 308.
One reason for the close cooperation between federal and
state planners was that the state needed an easement through
federally-owned land in order to build the new
675 of the opini
freeway. There were other reasons for NSA’s interest in the
Patuxent Freeway. First, NSA was concerned about traffic
congestion along Route 32. Contributing to the congestion were
the large number of NSA employees entering and exiting the
complex and the location of a major interchange between Route 32
and the BW Parkway. NSA officials worried that development of
BWPA’s property would worsen congestion by generating tens of
thousands of vehicles per day. Second, NSA expressed concern
that a major highway passing close to its complex could pose
security risks.
In addition to the Patuxent Freeway project, highway
planners perceived a need to improve the interchange between
A-16
Route 32 and the BW Parkway. NSA was deeply involved in
planning the interchange improvements. NSA and Fort Meade
officials pressed state highway planners for traffic solutions that
suited NSA, but which BWPA opposed. Specifically, NSA
favored closing the intersection between the service road and Route
32. NSA favored building a road through the north end of
BWPA’s property to connect with Maryland Route 175 to provide
access to BWPA’s property. BWPA officials opposed this idea
and wrote to congressmen to express concern that its access to
Route 32 would be cut off. In an effort to relieve traffic
congestion on Route 32, NSA suggested building an interchange
from the BW Parkway directly into the NSA complex. This ramp,
called the “connector road,” bisected BWPA’s property. NSA
assumed overall responsibility for the connector road construction.
Clearly, the connector road would have required BWPA to alter its
development plans. BWPA argued that the exit ramp could serve
both it and NSA, but NSA opposed this solution.
NSA exercised significant influence over highway planning
decisions. The importance of NSA input is captured by a 1983
A-17
letter from the Governor of Maryland to BWPA explaining that he
considered NSA’s access to Route 32 a priority.°
C. The Taking
In November 1985, BWPA notified NSA that it planned to
begin construction on the property. NSA immediately applied for
funding approvals to purchase the property. In a letter dated
December 16, 1985, an NSA official informed BWPA that "the
Government clearly will acquire that tract” and that "approval is
expected to be forthcoming in the next 12 months." P’s ex. 486.
On December 2, 1985, NSA requested emergency funding for the
acquisition.
NSA and COE had to secure several approvals to acquire
the property. They had to obtain approval from the Assistant
Secretary of Defense and congressional authorization to reprogram
funds for the purchase, prepare a planning report and have it
5As Governor Hughes explained, “it is simply not possible to provide
even minimally acceptable access to Maryland Route 32 from both the
massive National Security Agency complex and your development in the
space of just a few hundred feet, with both access points being
immediately adjacent to the Baltimore-Washington Parkway interchange."
P’s ex. 330.
A-18
approved, and order an independent appraisal and have it
approved. COE was not permitted to negotiate until funds were
authorized to acquire the property. For the next year, NSA and
COE continuously worked through channels to acquire funding.
An independent appraisal valued the property between $9.4 million
and $9.7 million. The Assistant Secretary of Defense notified
NSA on July 10, 1986 that the funding request met the criteria for
emergency funding, and later the Secretary of Defense approved
$9.7 million for the emergency acquisition. After following
additional procedures necessary to receive funding approval, on
September 30, 1986, the Deputy Secretary of Defense notified
congressional committees of the proposed acquisition. The
documents reflect that government officials acted as quickly as they
could to gain funding approvals, but that the approval process was
cumbersome.
On May 20, 1986, BWPA received its building permit and
pursued plans to join the Russett Joint Venture to build water and
sewer facilities. An NSA official asked BWPA to delay
construction until
A-19
676 of t ie
June 15, 1986 to allow NSA time to acquire authorization for
funding. On June 19, 1986, NSA reaffirmed its commitment to
take the property. In October 1986, NSA sent a letter to BWPA’s
lawyer explaining the process and reaffirming interest in the
purchase. Finally, in November 1986, congressional committees
notified NSA that they did not object to the funding, and $9.7
million was approved for the acquisition.
NSA officials opened negotiations with BWPA sometime
in late November/early December 1986. Negotiations halted when
government officials, who thought the appraisal might be too high,
ordered an additional appraisal. Berman became frustrated and
wrote to the NSA Director asking for a commitment to purchase
the property. Berman also wrote to various congressmen
expressing his concern at the lack of progress. The government’s
reply assured him that the government was taking the property.
Negotiations restarted in July 1987. Negotiations reached
and impasse by July 28, 1987, and in October 1987 the
government instituted eminent domain proceedings.
A-20
DISCUSSION
I. Statute of Limitations
Defendant raises a statute of limitations defense. The
Statute of limitations is six years. 28 U.S.C. § 2501. The
limitations period first accrues or begins to run when a potential
plaintiff knows or reasonably should know of all the events which
fix the government’s alleged liability. Hopland Band of Pomo
Indians v. United States, 855 F.2d 1573, 1577 (Fed.Cir. 1988).
If an injury is clear but its source unknown, the six-year period
starts wher. the plaintiff has reason to know the cause of the injury.
L.E. Cooke Corp. v United States, 27 Fed.Cl. 753, 754 (1993);
M.R.K. Corp. v. United States, 15 Cl.Ct. 538, 544-45 (1988).
This lawsuit is well within the statute of limitations.
BWPA claims that the totality of the government’s conduct
amounted to a taking of the property. The only evidence of a
taking about which BWPA could have known before December 16,
1985 were the government’s alleged threats to condemn the
property. The evidence supporting BWPA’s theory in this case
consisted of internal government documents to which BWPA had
A-21
no access until it conducted discovery. A mere threat to condemn
cannot form the basis of a Fifth Amendment taking. Mesa Ranch
Partnership v. United States, 2 Cl.Ct. 700, 707 (1983).
Therefore, a mere threat to condemn cannot constitute all the
events which fix the government’s liability.
The court finds that the earliest time at which BWPA might
have been aware of its claim was December 16, 1985, the date of
the letter from NSA to BWPA stating unequivocally that “the
Government clearly will acquire that tract.” P’s ex. 486. That
letter, coupled with BWPA’s nearly twenty-year history of
frustrated efforts to develop the property, could have raised
awareness that the government might have taken action to prevent
the development. Thus, the time at which the limitations period
ended was in December 1991, two years after BWPA filed its
complaint with this court.
II. Nature of Plaintiff's Cause of Action
A, Tort
The defendant argues that BWPA’s claims allege tortious
conduct, not a taking. Courts consider three factors to determine
A-22
whether alleged government conduct constitutes a taking or a tort.
First, the government’s conduct is more likely to sound in tort if
it is unauthorized or unlawful. Lawful or authorized government
conduct may be a taking. See B & F Trawlers, Inc. v. United
States, 27 Fed.Cl. 299, 303-04 (1992); Clark v. United States, 8
Cl.Ct. 649, 651 (1985). Second, the government’s conduct is
more likely to constitute a taking if its consequences are natural,
probable or foreseeable. Clark, 8 Cl.Ct. at 651; Berenholz v.
United States, 1 Cl.Ct. 620, 627-28 (1982), aff'd, 723 F.2d 68
(Fed.Cir. 1983). Finally, courts consider the nature of the
plaintiff's injuries. If a plaintiff claims incidental injuries, the
cause of ac-
577 of the opini
tion is more likely to sound in tort. In contrast, if a plaintiff
alleges permanent or continuing injuries, the cause of action is
more likely to be a taking claim. Clark, 8 Cl.Ct. at 651;
Berenhoiz, 1 Cl.Ct. at 627.
The court finds BWPA’s allegations support a taking claim
for several reasons. First, BWPA does not suggest that the
A-23
government acted illegally. Rather, BWPA contends that the
government acted pursuant to lawful military policy. Though
BWPA implies that the government violated statutes requiring
expeditious acquisition of property, that is only tangential to this
case. Second, BWPA alleges that the government acted
intentionally and, in fact, the natural and foreseeable consequence
of the government’s conduct was to obstruct development of the
property. Finally, BWPA alleges an injury of a continuing nature:
it claims that the government prevented it from developing the
property for almost twenty years.
B. Taking
The Fifth Amendment guarantees that private property
shall not “be taken for public use without just compensation.” U.S.
Const. amend. V. The guiding principle underlying takings
jurisprudence is that, “while property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a taking."
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct.
158, 160, 67 L.Ed. 322 (1922). A takings inquiry requires the
court to balance the private and public interests. A government
A-24
action effects a taking if it “does not substantially advance
legitimate state interests ... or denies an owner economically viable
use of his land." Agins v. Tiburon, 447 U.S. 255, 260-61, 100
S.Ct. 2138, 2141-42, 65 L.Ed.2d 106 (1980).° Under a takings
analysis, the court must consider three factors: (1) the character
of the governmental action; (2) the extent to which the regulation
interferes with distinct investment-backed expectations; and (3) the
economic impact of the regulation on the claimant. Connolly v.
Pension Benefit Guar. Corp., 475 U.S. 211, 225, 106 $.Ct. 1018,
1026, 89 L.Ed.2d 166 (1986) (citations omitted). Each factor is
examined seriatim.
*The facts of this case do not raise a per se takings analysis because
BWPA does not allege either a permanent physical occupation, Loretto v.
Teleprompter Manhattan CATV Corp. , 458 U.S. 419, 102 S.Ct. 3164, 73
L.Ed.2d 868 (1982), or a confiscatory regulatory action, Lucas v. South
Carolina Coastal Council, _U.S._, _, 112 S.Ct. 2886, 2893, 120
L.Ed.2d 798 (1922). Under the Lucas framework, a “landowner whose
deprivation is one step short of complete ... might not be able to claim
the benefit of [a per se taking category], but ... ‘[tJhe economic impact
of the regulation on the claimant and ...the extent to which the regulation
has interfered with distinct investment-backed expectations’” are still
relevant to determining whether there has been a taking. Lucas U.S.
at_n. 8, 112 S.Ct. at 2895 n. 8 (citation omitted). BWPA has not
established that it lost all economically beneficial use of the property.
A-25
The Character of the Government’s Conduct
The court draws inferences as to the character of the
government’s actions from the basic facts of the case. It is clear
that NSA desired to maintain a buffer zone around its perimeter
and preferred to control the development. The evidence that the
government's actions actually prevented development, however, is
conflicting. The court evaluates each of BWPA’s allegations.
BWPA alleges that the government negotiated in bad faith.
BWPA bases this charge on three claims. First, BWPA asserts
that the government tried to acquire only those portions of the
property that BWPA focused on for development and stopped its
efforts to acquire the property as soon as BWPA stopped trying to
develop it. Second, BWPA maintains that the government offered
less than it knew the property was worth. Finally, BWPA argues
that the government failed to act expeditiously to acquire the
property.
The evidence does not support these claims, and the court
concludes that the government did not negotiate in bad faith.
There is insufficient evidence that the government targeted for
A-26
purchase those por-
678 of the opini
tions of the property that BWPA readied for development. Rather,
the government targeted for purchase those interests that impacted
heavily on its security concerns. For example, the government
considered purchasing aerial easements over the property, and
limitations to restrict construction to public buildings.
There is insufficient evidence that the government dropped
its acquisition efforts solely because BWPA stopped its efforts to
develop. In contrast, the evidence supports the inference that the
government dropped its efforts to acquire the property because it
could not reach agreement with BWPA. GSA officials commented
that BWPA’s appraisal of the property was “inflated.” P’s ex. 49.
Plaintiff's exhibit 200 shows that the government fully analyzed the
negotiations, believed BWPA would demand more money than the
government could afford, and dropped its efforts 10 acquire the
property because it believed that it would be difficult for BWPA
to overcome its water and sewer obstacles.
There is no evidence that the government offered BWPA
A-27
less than it knew the property was worth. The evidence shows,
however, that government officials gemuinely believed that the
property was worth less than BWPA officials believed it was
worth. As one official stated in 1969, “the owners...have advised
that their property is worth about $20,000,000 to them. This
figure is obviously far from the actual value of the property." P’s
ex. 49. The government’s 1972 appraisal of the value of an aerial
easement estimated the value at $350,000, and that is the amount
that the government offered to purchase it. Similarly, during the
1987 negotiations for purchase, the government had authority to
pay up to $9.7 million for the property, and it offered $9.2 million
to BWPA.
Moreover, the government did not fail to act expeditiously
to purchase the property. During the negotiations between 1968
and 1975, the government did not purchase the property because
it could not reach agreement with BWPA. During 1985 through
1987, the government acted as quickly as it could given the
cumbersome process of gaining funding authorization. There is
little support for BWPA’s repeated assertion that the government
A-28
cals
ie ene
- ’
my
ae
ae.
had approval to purchase the property throughout the period in
question.
BWPA also alleges that the government exercised
enormous influence over the county approval process, influencing
State and county officials to oppose the development. BWPA
claims that the government notified the county that NSA planned
to acquire part of the property, persuaded county employees to
“drag their feet" in granting approvals, and practically dictated the
highway designs so as to use traffic problems to prevent the
development.
The court finds that the government did, in fact, notify the
county that NSA intended to purchase 75 acres of the property.
_ Further, the court finds that the government attempted to influence
the decisions of county officials. NSA and Fort Meade officials
attended county meetings concerning the development. They
cultivated a relationship with Marion McCoy, a county zoning
official. BWPA officials perceived that McCoy opposed the
development, and they felt they had to guard against her in‘luence.
However, there is conflicting evidence of the overall effect of
A-29
NSA’s influence on county officials. One document states that the
county would "continue to process [the] subdivision until a definite
commitment by Fort Meade has been made on [the] property." P’s
ex. 105 (emphasis in original). Another document suggests that
county officials were “dragging their feet" about granting
approvals in the hope that the government would acquire the tract.
P’s ex. 62. There was testimony that the approval process took an
unusually long time for BWPA; while most sketch plans are
approved within several months if there are no problems, approval
for one of BWPA’s sketch plans took over two years. Yet BWPA
never failed to gain the approvals that it sought. Twice it received
sketch plan approval. Once it received approval for an interim
_ sewage treatment facility. Once it received a building permit. In
light of the evidence, the court concludes that NSA attempted to
influence the
579 of the opini
county approvals process through both public opposition and
private persuasion. While the government’s influence could have
delayed some approvals, it never prevented them.
A-30
The court finds that the government’s influence over the
highway designs did not impede the development. The
government intended to use traffic concerns as a reason for
opposing the development. Plaintiff's exhibit 202 reflects that
NSA officials recommended that “Fort Meade pursue a position
that additional vehicular traffic resulting from occupants of
developed enterprises on the Baltimore Washington Parkway
property would add a problem which now exists on the Fort
Meade/NSA/CSS’s traffic capability." However, there is
insufficient evidence that NSA influence over the traffic issues
actually poisoned BWPA’s development efforts. MDOT officials
recognized that problems would ensue from the combination of
traffic from NSA and Colony Fairfield. Maryland officials
actively considered access to the property when they generated
proposals for the Patuxent Freeway. Even if BWPA’s access to
Route 32 were closed, an alternative access route was available:
extending Old Clark Road to Route 175. While BWPA opposed
this alternative access, there is no evidence that the alternative
A-31
Me i i a, ih ie, ie ee eS TTrrlUMaEeCrlUCUThCOhUCTCTmhUC TOO. 7 ov a a oe
access would have prevented the development.’
Finally, BWPA claims that the government threatened to
condemn the property. In December of 1985 NSA stated its
intention to condemn the property and in June of 1986 it asked
BWPA to delay its construction plans. The government followed
both of these actions with the eminent domain proceedings filed in
October 1987.
Legitimate government action which impairs the market
value of real property ordinarily does not amount to a taking.
Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 15, 104
S.Ct. 2187, 2196, 81 L.Ed.2d 1 (1984). In Kirby, the Court did
not find a taking when the government filed a notice of lis
pendens, notifying the public that it had instituted condemnation
proceedings, even though the notice reduced the market value of
the property. Id. at 7, 104 S.Ct. at 2192. Observing that filing
a notice of lis pendens was a legitimate governmental action that
"Plaintiff's traffic expert, William Baumigaertner, relied on these and
other documents to conclude that the government’s activity on the traffic
Baumgaertner relied on and reaches different conclusions for the reasons
stated.
A-32
did not "interfere{ ] with an owner’s legal right to dispose of his
land," the Court reasoned that “[uJntil title passed to the United
States, [the landowner] was free to make whatever use it pleased
of its property.* Id, at 15, 104 S.Ct. at 2196. In accordance with
this principle, courts have held that a threat of condemnation by
the United States was not a taking even if it tended to thwart a
proposed development. Mesa Ranch Partnership, 2 C1.Ct. at 707.
Nor was it a taking if the United States cut off the best highway
access from a property, so long as other access routes were
available. Id. at 709. In De-Tom Enters., Inc. v. United States,
213 Ct.Cl. 362, 552 F.2d 337 (1977), the fact that government
Officials spoke at a public hearing against a proposed zoning
change on a piece of private property did not support a taking
claim. The court analogized the government to a powerful
adjoining landowner, such as “a large private manufacturer or
comparable enterprise, or an organized group of citizens." 213
Ct.Cl. at 365, 552 F.2d 337.
At the other extreme, government conduct which goes
beyond legitimate government action and interferes with the legal
A-33
rights of landowners may constitute a taking. Althaus v. United
States, 7 C1.Ct. 688, 694 (1985). In Althaus, the court found a
taking because the government substantially eliminated all markets
and uses for a parcel of land, and then purposefully offered to
purchase the land for a fraction of its value. Similarly,
government conduct amounted to a taking when the government
completely and purposefully deprived a landowner of all highway
access to his property, thereby preventing
580 of 1 -
any chance for it to develop the property. Drakes Bay Land Co. v.
United States, 191 Ct.Cl. 389, 401, 411, 424 F.2d 574 (1970).
Many of the government’s actions in this case fall under
the category of legitimate government actions that normally do not
constitute a taking. First, the government negotiated in good faith,
but unsuccessfully, to purchase the property. Good faith
negotiations to purchase the property do not constitute a taking.
Mesa Ranch Partnership, 2 C1.Ct. at 708. Second the government
opposed development during county meetings. Speaking against
the development at public meetings and contacting public officials
A-34
are typical actions of concerned neighbors who oppose
development and do not constitute a taking. De-Tom Enters., 213
Cl.Ct. at 365, 552 F.2d 337. Third, the government informed
county officials of NSA’s intent to purchase the property. The
government may state its intention to condemn property without
effecting a taking. Mesa Ranch, 2 C1.Ct. at 707. Fourth, the
government took almost two years to secure funding approvals to
purchase the property. Here, as in Kirby, the government’s stated
intention to acquire the land may have had the effect of reducing
the market value for the property. Nevertheless, BWPA remained
free to make whatever use of the property it pleased until title
passed to the United States. Finally, the government did not take
the property until its development was imminent. The
government, however, had no obligation to purchase the property
until it agreed to do so. Moreover, government officials genuinely
doubted the plaintiff's ability to develop the property and thus had
no reason to acquire it until development became imminent.
Some of the government’s actions may not fall under the
rubric of legitimate actions. Government officials wielded
A-35
substantial influence over the state highway planning decisions and
intended at one point to use highway issues to persuade county
officials to reject development. Government officials also
cultivated a relationship with one county zoning official in order
to enlist her support against the development. Assuming,
arguendo, these actions impaired BWPA’s ability to develop its
property, they could support a taking claim. The court will next
examine the extent to which these governmental actions interfered
with BWPA’s reasonable investment-backed expectations.
Interference With Reasonable Investment-Backed Expectations
First, the court must determine whether the plaintiff’s
| expectations for development were reasonable. The court finds
that though BWPA’s hopes for developing the property were
reasonable to some extent, there were no guarantees that it would
have been able to achieve full development within a reasonable
time period. BWPA’s hired consultants concluded that building
water and sewer service were feasible but would have taken several
years. Further testimony showed that developers of the KMS
building, which was completed in 1990 on property close to the
A-36
BWPA tract, had difficulty finding tenants. That example suggests
that there was no guarantee of successful development. Thus, the
court concludes that BWPA’s investment-backed expectations were
reasonably possible but not certain to be fulfilled.
Next, the court must determine whether the government’s
actions actually prevented BWPA from developing the property.
Most of the government’s actions did not impede development;
rather, BWPA officials chose not to pursue development
aggressively. First , there is no support for BWPA’s contention
that the government negotiated in bad faith merely to induce
BWPA to stop its development. The court has found previously
that the government did not negotiate in bad faith. Second, if
BWPA ceased its development efforts because it hoped the
government would acquire the property, that was BWPA’s choice.
Third, there is insufficient evidence that alleged threats to condemn
the property actually prevented the development. Though Dennis
Berman testified that it is difficult to obtain financing or sell the
property under a threat to condemn, the record contains no
evidence that BWPA
A-37
681 of # mais
was rejected for a loan due to government threats nor that potential
buyers declined to buy it because of government threats.
Moreover, Berman admitted that BWPA could have built pieces of
the development without outside financing. Fourth, BWPA lacks
evidence that the government’s influence over any of the traffic-
related issues actually impeded the development. Though NSA
wanted to close one access route to the property, another access
route was available. There is no taking so long as some access
route was available. Mesa Ranch Partnership, 2 C1.Ct. at 709. In
addition, the county authorities approved BWPA’s sketch plans,
and BWPA obtained a building permit. The court finds little
evidence that the government’s plans to build the connector road
impaired BWPA’s development efforts.
Finally, there is insufficient evidence that the government’s
Opposition to the development during the county approvals process
actually impeded the development. NSA may have used its
relationship with Marion McCoy to slow down the county zoning
approvals. However, the evidence is inconclusive as to whether
A-38
the government’s influence caused a delay. While testimony
indicated that one of BWPA’s sketch plan approvals took longer
than usual, BWPA twice won sketch plan approval, once gained
approval for an interim sewage treatment plant and obtained a
building permit. Thus, BWPA has not established by a
preponderance of the evidence that the government substantially
interfered with the approvals process for the development.
BWPA argues that the totality of the government’s actions
made it risky for BWPA to prepare its property for development
because BWPA knew it could not recover preparation costs from
the government through an eminent domain proceeding. Thus,
according to BWPA, it risked losing money if it started to develop
and the property was taken; yet if BWPA did not develop the
property, the government would not have taken it.
This argument assumes, without support, that the
government’s taking was inevitable. The court is not persuaded
that the taking was a foregone conclusion. At least once
previously, the government failed to gain funding approval to
purchase a limited interest in the property. Also previously, the
A-39
government had attempted to purchase limited interests in the
property, leaving some portions available for development. NSA
Officials also desired to acquire the entire property. However, the
record fails to support the inference that at all times NSA officials
could gain approval for the purchase. Moreover, this fact tends to
undermine BWPA’s position, because it suggests that BWPA
controlled whether the property would have been taken or
developed. In Kirby Forest, the Court observed that
any effort by petitioner to develop the land
probably would have prom»ted the Government to
...to file a declaration of taking ...But the
likelihood that the United States would have
responded in that fashion ...weakens rather than
Strengthens petitioner’s position, because it
suggests that petitioner had the option, at any time,
to precipitate an immediate taking of the land.
467 U.S. at 15-16, 104 S.Ct. at 2196-97. The same analysis
applies here. If BWPA had begun construction, the government
would have attempted to secure funding to acquire the land. If the
A-40
government failed to acquire the land, then BWPA would have
completed its development. In fact, it was BWPA’s letter to NSA
indicating that development was imminent that precipitated the
government’s efforts in 1985 to obtain funding to take the
property.
The Economic Impact of the Government’s Action
Because the court finds that the government’s actions did
not actually interfere with the development, it also concludes that
the government’s actions had little economic impact on BWPA.
Several factors buttress this conclusion. The government offered
the plaintiff several opportunities to avoid a taking by selling its
land or interests in the land. This distinguishes this case from
Drakes Bay. In Drakes
682 of t fi
Bay, the court held that the government completely precluded
development when it acquired the only piece of land that could
connect the subject property to highways. Once it acquired this
land, the government refused to permit road construction and
refused to purchase the subject property. 191 Ct.Cl. at 411, 424
A-41
F.2d 574. Here, by contrast, the government never could have
stopped the development completely. By its own admission, BWPA
made business decisions to stop its development efforts when it
believed the government would acquire the land. BWPA could at
all times have precipitated a taking, or achieved development if it
had continued its efforts to do so.
The case also differs from Althaus. In Althaus, the
government deliberately offered less than it knew the land was
worth, and created an environment wherein landowners could
neither sell nor use their property. 7 Cl.Ct. at 694-95. Here,
however, evidence shows that the government offered close to the
value of appraisals performed by independent consultants.
Moreover, BWPA remained free to attempt to develop its land if
it wished. Thus, BWPA was not deprived of a market for its
property. Courts have stressed that there is no taking if the
plaintiff remained free to sell the property or to develop the
property to some extent. Mesa Ranch, 2 Cl.Ct. at 709; De-Tom
Enters., 213 Ct.Cl. at 370, 552 F.2d 337.
Thus, BWPA has not established by a preponderance of the
A-42
evidence that the government’s conduct caused BWPA to fail to
develop its property and suffer economic loss as a result.
CONCLUSION
After a thorough review of the evidence presented at trial
and the entire record, the court concludes that plaintiff has not
established a taking by a preponderance of the evidence.
Accordingly, the court finds for the defendant. The Clerk is
directed to enter judgment for the defendant and dismiss plaintiff's
complaint. No costs.
A-43
B.W. PARKWAY ASSOCIATES LTD. PARTNERSHIP v. U.S. 683
Clee as 29 Fed.C. 609 (1993)
APPENDIX
PLAINTIFF'S EXHIBIT 89
P -
eewase
ect er eee
fsa.
can GEORGE CS MMEAGE
NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record. The disposition will
appear in tables published periodically.
UNITED STATES COURT OF APPEALS FOR THE
FEDERAL CIRCUIT
94-5038
BW PARKWAY ASSOCIATES
LIMITED PARTNERSHIP
Plaintiff-Appellant,
A
THE UNITED STATES,
Defendant-Appellee.
JUDGMENT
ON APPEAL from the UNITED STATES COURT OF
FEDERAL CLAIMS
in CASE NO(S). 539-89L
B-1
This CAUSE having been heard and considered it is
ORDERED and ADJUDGED: AFFIRMED.
Per Curiam (PLAGER, LOURIE, and RADER, Circuit
Judges). See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE COURT
DATED SEP 15 1994 Ls/
Francis X. Gindhart, Clerk
Costs: AGAINST APPELLANT
PRINTING $77.25
TOTAL $77.25
ISSUED AS A MANDATE: OCT 6 1994
FILED
U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT
SEP 15 1994
FRANCIS X. GINDHART
CLERK
B-2
APPENDIX C
U.S. CONST. amend. IV:
“The right of people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. CONST. amend. V:
“No person shall beheld to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment 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
C-1
compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property
be taken for public use, without just compensation."
APPENDIX D
OTS ar Rg eT ORR NE EN oT E> Pete Ee MOE aT een hye ts
10 U.S.C. § 2803 Emergency Construction
(a) Subject to subsections (b) and (c), the Secretary concerned
may carry Out a military construction project not other authorized
by law if the Secretary determines (1) that the project is vital to the
national security, and (2) that the requirement for the project is so
urgent that deferral of the project for inclusion in the next Military
Construction Authorization Act would be inconsistent with national
security.
10 U.S.C. § 2672(a) Emergency Construction
The Secretary of a military department may acquire any interest in
land that -
(1) he or his designee determines is needed in the interest
of national defense;
(2) is required to maintain the operation integrity of a
(3) considerations of urgency do not permit the delay
necessary to include the required acquisition in an annual Military
Construction Authorization Act.
Appropriations available for military construction may be used for
the purposes of this section. The authority to acquire an interest
in land under this section includes authority to make surveys and
acquire interests in land (including temporary use), by gift,
purchase, exchange of land owned by the United States, or
otherwise. The Secretary of a military department contemplating
action under this provision will provide notice, in writing, to the
Armed Services Committees of the Senate and House of
Representatives at least 30 days in advance of any action being
taken.
42 U.S.C. § 4651 Uniform policy on real property acquisition
practices
In cotes to encourage and expedite the acquisition of real property
by agreements with owners, to avoid litigation and relieve
congestion in the courts, to assure consistent treatment for owners
in the many Federal programs, and to promote public confidence
in Federal land acquisition practices, heads of Federal agencies
shall, to the greatest extent practicable, be guided by the following
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policies:
(1) the head of a Federal agency shall make every
reasonable effort to acquire expeditiously real property by
negotiation.
(7) in no event shall the head of a Federal agency either
advance the time of condemnation, or defer negotiations or
condemnation and the deposit of funds in court for the use of the
owner, or take any other action coercive in nature, in order to
compel an agreement on the price to be paid for the property.
(8) if any interest in real property is to be acquired by
exercise of the power of eminent domain, the head of the Federal
agency concerned shall institute formal condemnation proceedings.
No Federal agency head shall intentionally make it necessary for
an owner to institute legal proceedings to prove the fact of the
taking of his real property.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.