# Petition for Writ of Certiorari — BW Parkway Associates Partnership v. United States, 115 S. Ct. 1356 (1995) (No. 94-1104)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1030%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995

## Text

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

ee oe

8c rire whine shoe

vite

Ce eee

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

pi ay ghee a 3, ebay tons

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

S
4
3
4
A
4

a
a
x
4
#

Ph ens Dhiba

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

12

é
is
is
x
4
4
4%
$
4
t
5
=
k
A |
,

REG te A RR OR AN 9

Nie Bee Ne ee

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.

13

s

SS
q
%
2
$
%
4
S
=
%
1

iat DUE REAR EA ROS BN 8. Sb tis ra

palit rst APA Das.

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

:
{

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 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

D-2

A) eee

id al eli La hs
Ne EC Re, La ST Es cee Pa ee

Ba Sass a

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1030%3A1. Public record. Not legal advice.