Property Developer and Corps of Engineers Dispute Boundaries of Land Parcel

r. tuerk to purchase approximately 2,750 acres of property on the mid-atlantic coast of florida august 2, 2002, lost tree filed an application with the town of indian river shores requesting (dec. 17, 2009) ("bayer decl.") � 19. in addition to managing lost tree's investment10 development of the six lots comprising plat 40. stip. � 72. at that time, the north side of constituted a taking in contravention of the takings clause of the fifth amendment. early in the in february 1969, lost tree exercised the first of what would be six options pursuant to development proposal, notwithstanding the different kinds of ownership in the upland � a fee e. synopsis island, stip. � 9, and never was associated with the community of john's island. a distillation of the considerations providing the bases for decision in the pertinent stip. �� 102-103. in contrast, lost tree did stub out water and sewer service to a tract at the motion for partial summary judgment on the issue of the relevant parcel and the government's a. considerations pertinent to determining the relevant parcel k at id00485 (modification of dredge and fill application (oct. 1, 1982))). on december 7, the joint stipulations will be cited as "stip. � __."2 island continued until the mid-1980s, and eventually included two golf courses located west of issue as to any material fact and the moving party is entitled to judgment as a matter of law. the dispositions of properties by lost tree after it had ceased developmental activities. given these competing claims, the progression of lost tree's development and the role property consisted of about 35 acres of land located about five miles west of gem island, stip. portfolio, mr. bayer became responsible for addressing the remaining property lost tree owned other nearby residual properties. plat 57 appears to have little value in its present state, either17 e. the john's island property owners association 1985 when it recorded plat 40, comprised of six lots on the south and east sides of stingaree pending, lost tree sold the horse's head property to horse's head ltd., a separate entity with a last conveyances under the 1968 option agreement. nuances." loveladies harbor, inc. v. united states, 28 f.3d 1171, 1181 (fed. cir. 1994) (citing long beach island, new jersey, in 1958, and by 1972, it had developed 199 acres. 28 f.3d at except where a contrary indication is noted. questions were raised. for example, in palm beach isles, a group of investors had purchased12 stingaree point. id. lost tree began developing the south side of stingaree point in november within the larger community of john's island were developed, several different homeowners' 5 precedents shows that the primary focus is on the economic reality of development and the include gem island as well. however, lost tree's attempt to develop plat 57 was temporally resources division, united states department of justice, washington, d.c., for defendant. with gem island was the last significant portion in the community of john's island to be shores and the corps in august 2002, stip. �� 110-111, after it had completed disposition of managing lost tree's investment portfolio. stip. � 81. a few residual parcels in indian river that time, lost tree had shifted its focus from the development of the island of john's island to the value of the remaining lands, and (6) the extent any earlier development had reached portfolio of assets that included some real estate. stip. � 80. marking this shift, lost tree hired covenants were recorded for different lots or groups of lots, and, as the different communities flow and eliminated stagnant, eutrophic water. see infra, at 5 & n.8. different plats on the barrier island. stip. � 25. the plats covered proposed homesite or house in the community. stip. � 137. the golf club is neither controlled by nor affiliated with 1390-91 (fed. cir. 1987). denial of both motions is warranted if genuine disputes exist over submitted for decision on a paper record; the court has neither heard testimony nor visited the additional revised plans to the state on october 1, 1982. stip. �� 54-55. the new application parcel is defined. id. the resulting relevant-parcel issue is often referred to as the "denominator 1999, gem island investment lp had sold the remaining gem island lots. stip. � 76. at that takings analysis involved here, simply because at one time they were under common ownership lost tree village ) regulatory takings claim arising from a within the community of john's island, "john's island club," runs the two golf courses within tree's investment portfolio. stip. � 81. in 1995, lost tree changed its federal income tax status the john's island property owners association or "jipoa," to which over 90% of the owned by lost tree. stip. �� 19-20. gem island, before converting to an asset management company in the mid-1990s and changing lettow, judge. to reflect that it was no longer a land developer, and from 1996 onwards it was taxed as a to facilitate residential development. stip. � 43. although the corps had determined by the development emerged on an opportunistic basis over time. the key question that emerges is14 john's island sound is located between the island of john's island and the barrier island,8 1188-89. the court rejected a takings claim respecting the two projects as to which approvals property owner. ("rcfc") and the protective order entered in this case, it was initially filed under seal. the � 83, plat 57 was a residual parcel that lost tree addressed as an afterthought. see stip. �� 104- 11 application for this property in july 1997. stip. � 89. while the permit application was still determined that two were developable. stip. � 87. the first parcel, comprising three lots near were located on both sides of u.s. highway a-1-a on the barrier island immediately adjacent to � 138. as a result, not all of the residents of the john's island community are members of the by plat 57 was never part of a permit application submitted by lost tree for any part of the island lost tree's development of stingaree point was substantially complete, see stip. � 74, and by this action concerns a 4.99 acre tract of land, most of which is a wetland, known as "plat 6 temporal aspects of development were more explicitly the crux of the disputed proper- 1968 option agreement was developed on a segmented basis involving many separate plats into until action was taken in the early 1980s to breach the isthmus with a canal that improved water ) describes economic expectations as a "critical issue" in identifying the parcel as a whole. in 1366. the government discounts this shift in lost tree's focus, emphasizing the facts that plat problem" because, "in comparing the value that has been taken from the property by the which the u.s. army corps of engineers ("corps") denied on august 9, 2004. lost tree claims in addressing the relevant parcel or "denominator," a number of considerations can have a d. advent of plat 57 here, no explicit overarching plan for development was ever prepared, but a definite pattern of john's island, and concluding with the development of homesites on gem island. different mid-1980s, see stip. � 74, and finally developed and sold the lots on gem island in the late 1980s requiring separate application to and acceptance by the membership committee of the club. stip. florida. stip. � 3. rather than an implementation of a comprehensive plan, lost tree's development of the14 "[p]rotection of some 35.37 acres of existing mangrove islands . . . as per john's island inferences against the moving party. mingus constructors, inc. v. united states, 812 f.2d 1387, which lost tree submitted a section 404 permit application in july 1997, prior to sale to a previously developed, sold, or transferred, except as a surviving relict. whether plat 57 was first eliminated from consideration the land developed prior to 1972. id. at 1181. it also 1 the gem island bridge proposed by the 1984 permit application. stip. � 67. this canal, the gem deleted "all originally proposed project features . . . from th[e] application except the bridge from disputes that lost tree never had an overarching development plan, def.'s cross-mot. at 34, and � 21. between november 1971 and august 1974, lost tree exercised options five additional john's island, and gem island located northwest of the barrier island and north of the peninsula.5 the later disposition in 2004 of the "west acreage" to an unrelated party, stip. � 86,16 residential lot on the property. stip. � 110. lost tree submitted a section 404 wetlands fill formed in 1956 as a florida corporation, lost tree was for a considerable period of time island of john's island near chambers cove, an arm of the indian river which borders plat 57, canals including a u-shaped canal that would be located at the southwesterly portion of the "genuine" if it "may reasonably be resolved in favor of either party." anderson, 477 u.s. at 250. lost tree began selling the gem island lots to individuals for single family residences in 1990. sides of stingaree point. stip. � 71. these lots were sold within a few years, id., and that was in addressing lost tree's regulatory takings claim, the court among other things must has been treated as a single economic unit, (5) the extent to which the regulated lands enhance (1984 permit (nov. 27, 1984)).9 sold. see stip. � 88. approvals for plat 57 as consistent with the town's comprehensive plan and found that the this causeway is known as the "sandpiper causeway," and its purpose was to "provide[]7 parallels between this case and precedents in the federal circuit where similar proper-parcel a. land acquisition authorized by the 1982 permit were necessary for the construction of stingaree point road or easements for islands and wetland parcels were granted in 2001 to various federal and state pursue a section 404 permit for plat 57 and the corps' action in denying that permit should be for the reasons stated, the extensive stipulations of fact filed by the parties are permit application") to the corps for a permit under section 404 of the clean water act, 33 six lots on that peninsula; rather, nothing was then planned for the north side of stingaree point. ciampitti v. united states, 22 cl. ct. 310 (1991), an investor-developer acquired "purchase 7," lost tree filed its applications for permits for plat 57 with the town of indian river property after it ceased developmental operations is deficient. access from the main part of [the community of] john's island [on the barrier island] to the corps stated that "the project purpose has already been realized through the development of improvements, including installation of two causeways, one connecting the existing development c. termination of developmental operations and disposition of scattered parcels and islands point, stip. � 98, described by the parties as "a mangrove swamp and wetlands that have been governmental regimen that led to the regulatory imposition, is a factor, but only one factor, to be whether, and when, the developmental pattern had been completed such that lost tree's effort to prior to seeking a permit for plat 57, raises open questions. accordingly, the court denies both the parties. similarly, the parties do not focus on these sales and dispositions in their arguments, new jersey department of environmental protection generated a compromise that would allow island causeway and bridge, and gem island have only a peripheral relevance to the proper- march 1969 as "john's island plat 1," and consisted of the south golf course, condominiums, the 50.7 acres for which palm beach isles sought a permit, the court considered that "[t]he city of vero beach, 838 so. 2d 561 (fla. dist. ct. app. 2002).11 id. in october 1995, lost tree sold the remaining lots on gem island to gem island investment separated from the segmented development of the rest of the community, and the plat was never 497 (1987)). the court's determination respecting the relevant parcel is "a conclusion of law, id. access to the six lots on stingaree point was provided by a new road constructed roughly up although most knowledgeable people in the vicinity would consider that the community of john's parties' steps to prepare this regulatory takings case for resolution, they recognized that the key 110. developed into homesites. stip. � 88. these three lots were located on upland and no corps that the denial of its permit application eliminated all economically viable use of plat 57 and (apr. 30, 1986)) (evaluating budget to complete development of the island of john's island). different ownership structure than lost tree, which ultimately received a wetlands fill permit "prior to 1996, in accordance with [s]ection 262(a) of the internal revenue code, lost10 a whole" rule derived from penn central transp. co. v. city of new york, 438 u.s. 104 (1978). developmental use of 12.5 of the 51 acres. id. the development rights in the remaining 38.5 1982, the corps issued a permit to lost tree which approved only the following infrastructure opinion and order1 application, the corps never acted on the permit application because the state would not ment of, and any continuing relationship to, the property comprising the island of john's island [the island of] john[']s [island] to gem island and its approaches." stip. � 55 (quoting stip. ex. jutting off the southern end of the island of john's island on the west side is a small parcels north and south of the gem island causeway. pfuf � 92a; see also stip. � 104. lost option related to so-called conveyance "c" and encompassed a significant portion of the island 442 (1982 permit (dec. 7, 1982)).8 the state, leaving the 12.5 acres as the relevant parcel. id.13 tree treated its operational costs as an expense, which would not have been permissible for a stip. � 24, then turned to the island of john's island, which was substantially completed by the manmade ditches installed for mosquito control." stip. � 99. the water present is eutrophic, i.e., 2 conveyed and that plat 57 was never a part of any development plan for any of the previously 12 it argues that plat 57 is and was a wetland that provides value to the community of john's island. john's island club and not all club members are residents of the community. id. island includes parcels which were neither covered by the 1968 option agreement nor ever determining how to define the unit of property whose value is to furnish the denominator of the appraisal dated april 30, 1986 stated that the "development [of stingaree point] is substantially nine years later, in 1993, lost tree applied for and received a third permit from the9 13 * * * * * * * * * * * * * * * * * * * * * * * * and early 1990s. see stip. �� 75-76. the mid-1990s marked the termination of lost tree's government contends that excluding previously owned property would contravene the "parcel as by the mid-1990s, lost tree, guided by its new president, mr. bayer, was focused on the center line of the point, called stingaree point road. stip. � 97. none of the improvements for development. pl.'s mot. for partial summary judgment at 23 ("pl.'s mot."). the sufficient background to decide the proper-parcel issue. a hearing on the cross-motions was held were sold as part of a settlement of a zoning dispute with the city of vero beach and the town lost tree submitted a "development plan" for the island of john's island and gem island, stip. 57," bordering a cove on the indian river near the atlantic ocean in east central florida. based on the facts of the case." id. at 1380. courts have rejected a brightline rule that the lost tree contends that plat 57 should not be coupled with the other developments that community of john's island apparently can be best characterized as an opportunistic progression. defendant. ) jipoa are not subject to this architectural review nor are these owners subject to payment of lots on the east and south sides of stingaree point, plat 57 draws value from those parcels. initial development on the barrier island was platted with the town of indian river shores in flow from john's island sound into the indian river. stip. �� 56-57; stip. ex. k at id00417- in this same vein, norman v. united states, 429 f.3d 1081, 1091 (fed. cir. 2005), located at the edge of the island of john's island, plat 57 is contiguous to, and physically stipulated facts. in this respect, lost tree's extensive activity to wind up its presence in the area, . . . cannot be justified." id. at 1381. like the 50.7 acre parcel at issue in palm beach isles, plat office of the clerk of the circuit court of indian river county, florida which bear the following completion and closure. see palm beach isles, 208 f.3d at 1381 ("the timing of property claim. id. point. stip. � 71. within a few years, these lots had been sold and homes were built on them. had taken place in the past on the island of john's island, gem island, and the barrier island on the island of john's island, for example, to "drive to the . . . golf club without having to [go] river to the atlantic ocean plus the lands comprising john's island," stip. ex. a at beach isles sought a permit]," and that "[c]ombining the two tracts for purposes of the regulatory determine whether the corps' permit denial precludes all economically viable use of the to the mid-1990s and had responsibility for environmental regulatory activities in the state. it the north side of stingaree point, but it was not platted at the time lost tree developed the other the original 311.7 acres were sold in 1968 to an unrelated developer. id. palm beach isles a part of, the community of john's island. it can be reached by road only by first passing through subject to the compromise. id. at 1174. in addressing the relevant parcel, the federal circuit costs that benefitted multiple lots and added an allocated share of those costs to the tax basis of decision of the supreme court in palazzolo v. rhode island, 533 u.s. 606 (2001), addresses the homesites and condominium units since 1969. stip. � 78. 57 was purchased as part of the extensive lands acquired via the 1968 option agreement and that permit application. stip. � 118. on august 9, 2004, the corps denied that application. stip. ex. generally either referred to as "tracts" or as conservation easements. stip. � 27. at 1361. big bear also secured an option to purchase up to 200 acres of lake-bottom land. id. the town of indian river shores approved a preliminary plat for plat 57 that would allow for the supreme court has not spoken directly to the issue presented by this case. the12 the mid-1990s, a span of approximately 25 years, roughly half of the 2,750 acres covered by the v. ) the relevant parcel should not be so severed, then it would be treated as a small part of the overall tract comprised of on the barrier island to the island of john's island and the other connecting the island of john's is and always has been detached from property ownership in the community of john's island, plaintiff, ) partial summary judgment on issue of material facts. id. the so-called "island of john's island" was connected to the barrier island by an isthmus5 rich in nutrients but starved of oxygen, and thus will support only limited flora and fauna. bayer him on the briefs were ignacia s. moreno, assistant attorney general, environment & natural development of [the 261 acres sold in 1968] was physically and temporally remote from, and on march 25, 2010, during which the court received a detailed explanation of maps and plats that a new company president in 1994, charles m. bayer, who became responsible for managing lost plat 57 when it only owned that property and a very few other scattered small tracts not suitable as development of the community of john's island neared completion in the mid-1990s the community, as well as a third golf course located approximately ten miles from the main club jacksonville, florida. and roughly trace the edge of stingaree point and horse's head, two small peninsulas extending dates: february 5, 1970; november 5, 1971 (corrected december 6, 1971 and january 10, 1972); stip. � 64. the corps approved the application in november 1984. stip. ex. l at id00831-850 time, late in the 1990s, the development of the community of john's island was substantially gem island (the "west acreage"), stip. � 9, and 10 acres located about one quarter mile to the id. on june 28, 2004, lost tree submitted additional information to the corps in support of its (filed under seal: may 21, 2010) summary judgment is appropriate if the record demonstrates that there is no genuine undertook sale of three lots comprising plat 55, recorded in 1998, near the base (or eastern-most b. development of the community of john's island elements are taken from the parties' stipulations of fact and other filings and are undisputed lost tree developed several different communities over the course of thirty years, beginning with systems, and a sewage treatment facility. stip. � 22. lost tree's development of the barrier claimant with regard to the property"); loveladies harbor, 28 f.3d at 1181 (considering "the stingaree point, on which plat 57 is located, was left unplatted. stip. �� 71, 110. lost tree easements to governmental entities, are not addressed by the extensive stipulations supplied by ) wetlands fill permit; cross-motions for spring of 1982 that it was prepared to issue a permit for the work envisioned in the 1980 permit community. at 1090-96. property lost tree sold." bayer decl. � 19. subsequent to its change of business purpose, lost with regard to the timing of property acquisition and development, there are some when the developer filed a takings claim as to the wetland tracts for which a permit was denied, residences and golf courses on the barrier island, and, after a hiatus, moving on to the island of 2010, addressing the matters encompassed by rcfc appendix a, �� 5 and 12 (last sentence), the exercise of the various options. stip. ex. a at ltvc015324 (1968 option agreement). standards for decision stip. �� 102-103. by 1989, lost tree had moved on to record plat 52, covering all 40 lots on anticipated in any of the prior permit submissions for piecemeal development. as early as 1986, 7 depicting the optionee's proposed development of all of the land that extends from the indian the focus of lost tree's business changed from real-estate development to management of a united states, ) of john's island was plat 25, filed with the town of indian river shores in may 1980 and revenue service accepted this change in accounting treatment. id. elec. indus. v. zenith radio corp., 475 u.s. 574, 587-88 (1986). in disposing of cross-motions for the transferred property, but claims for an illegal exaction and for a taking were rejected. id. cross-motion for partial summary judgment on the same issue are denied. the disputed issues ) cross-motion on that issue. one of the gates for entry into the community. that factor weighs in favor of treating plat 57 as insufficient to resolve issues material to a disposition of this case. accordingly, plaintiff's the 1968 option agreement. stip. � 12. that option covered conveyances "a" and "b" which highway a-1-a (lost tree built a second golf course in 1970), a beach club on the atlantic town of indian river shores and relatively near the city of vero beach, and were comprised of 1174. to develop the remaining 51 acres, it needed to fill 50 acres. id. negotiations with the island prior to the advent of plat 57. in denying lost tree's section 404 permit application, the connection to the community of john's island.16 the key then to the relevant parcel determination in this case is found in nuances indicate that these sales and dispositions may be critical to the result in this case. these grants various parcels, many of which were not contiguous to the largest tract. the option agreement does not alter this conclusion because the west acreage was about five miles distant from gem on july 11, 2001, various parcels of properties derived from the 1968 option agreement were preservation society agreement." stip. ex. g at ltvcos0052 (1980 development plan). on � 34, which included several project drawings. stip. � 35. the 1980 development plan commonly-owned entity, and soon thereafter also transferred the option to the pertinent lake- def.'s cross-mot. for partial summary judgment at 36 ("def.'s cross-mot."). the government river county, the city of vero beach, and the town of indian river shores. pfuf � 92a. conveyances, conveyances "a" through "i," allowing for the purchases of the property through in the course of its development of the barrier island, lost tree recorded approximately 45 � 83. lost tree also still owned a few small parcels on the island of john's island. stip. � 87. lost tree. stip. �� 138-139. membership in the john's island club and the affiliated beach club relationship of the parcel subject to the regulatory action to the overall developmental pattern. being developed, several different homeowners' associations were formed on the barrier island, "propose[d] the creation of some 200 single family residences on about 400 acres of land[,] . . . properties. in that case, a real estate holding company, big bear properties, inc., had purchased c. dispositions of scattered tracts agreement with the city of vero beach and the town of indian river shores, which settlement company in the business of developing and selling real property. id. after an audit, the internal a fact is "material" if it might affect the outcome of the case. id. at 248. when deciding these disturbed by scattered upland soil mounds vegetated by an invasive species of pepper, and by it is so ordered. approval to install a causeway and bridge connecting the island of john's island with gem island. states, 177 f.3d 1360, 1365 (fed. cir. 1999) (focusing on "the economic expectations of the homeowners in the community belong. stip. � 124. as the community of john's island was covered (1) land on an unnamed barrier island ("barrier island") on the atlantic coast, which the barrier island, purchased in february 1969 in the first of the six options. stip. � 21. the governmental entities. see supra, at 7. additionally, the lost tree islands in the indian river conservation easements in deed restrictions in favor of the federal government, i.e., the corps, approved the exclusion of the acreage respecting which development rights had been dedicated to one of the project drawings, much of plat 57 was shaded in green and labeled "wildlife preserve." reserved as conservation easements by deed restrictions recorded by lost tree in favor of the st. 2,500 acres of land adjoining big bear lake in southern california. forest properties, 177 f.3d and gem island, acquired by lost tree in 1974, 27 years earlier, under the 1968 option executed on august 12, 1974. id. the first plat for the development of home sites on the island sold plats and tracts. pl.'s mot. at 31-34. in making these arguments, the parties largely ignore improvements: (1) construction of a causeway connecting the barrier island to the island of complete. stip. �� 77-79. lost tree had developed and sold approximately 1,380 single-family ) stip. �� 28, 31. these properties were purchased by lost tree in the last of the six options in the 1980 permit application, lost tree sought approval for various infrastructure easements described above, lost tree considered whether plat 57 constituted a developable site. the court considered the entirety of "purchase 7" to be a single parcel because it was treated by from the corps in 2002. stip. �� 91-93. the horse's head property was recorded as plat 54. issues, courts view all inferences in the light most favorable to the non-moving party. matsushita other cases cited by the parties seem less relevant to the proper-parcel inquiry. in bottom. id. at 1363. the section 404 permit was ultimately denied, and forest properties stip. �� 104-105. plat 57 is a 4.99 acre parcel of land located on the north side of stingaree f.3d 1374, 1380 (fed. cir. 2000). this determination frequently depends on how the relevant although the 1968 option agreement mentions a "tentative land development plan 57 is temporally, albeit not physically, remote from the other property on stingaree point which parcels included all of hole in the wall island, three large islands in john's island sound, and as described earlier, the other post-development dispositions of residual properties on17 regulatory link between the earlier development and plat 57. the residuum of land represented one residential homesite. stip. � 115. however, this approval was challenged in florida circuit of the residual parcels lost tree still owned on the island of john's island, lost tree loveladies harbor, see 28 f.3d at 1181, raised some temporal considerations but in a context legally unconnected to, the 50.7 acres of wetlands and submerged lake bed [for which palm 1968 option agreement. stip. � 86. no. 08-117c island of john's island, and gem island, most if not all of which eventually merged into jipoa. acquisition and development, compared with the enactment and implementation of the developed the infrastructure for the barrier island property, including streets, utilities, sewage road." stip. ex. n at ltvc013533 (john's island remaining real estate and related assets of john's island and thus it was not explicitly tied as an economic matter to the properties the west acreage was sold to an unrelated developer in 2004, together with some11 including making final sales and grants of easements of the outlying islands and stray parcels, accordingly, the question before the court is whether the detailed factual stipulations provide a 3 river, including gem island, and (4) upland tracts bordering and near the indian river, as well as the circumstances of these sales and dispositions, particularly the grants of conservation john's river water management district ("sjrwmd"). pfuf � 92a; bayer decl. � 23. these conclusion defendant, and after a three-day bench trial, in february 2004, the court upheld the town's coast, golf cottages, a private hotel facility, and about 800 individual dwelling units. stip. � 24. home-sites within the subdivision," stip. ex. u at ltvc014016, raising questions regarding the the stipulations do not address when the three lots comprising plat 55 were actually15 of plat 57 are important, particularly insofar as the development of the island of john's island 1968)). the lands subject to the 1968 option agreement were located in the general area of the of john's island, including plat 57, the tract involved in the permit denial engendering lost approval for a preliminary plat and a marginal wetlands determination and conditional use september 7, 1972; september 7, 1973; and august 12, 1974. stip. �� 12-13. the last exercised associations were formed for those communities, although today most if not all of those are remitted for trial. the parties are requested to file a joint status report on or before june 11, with respect to preparations for a trial of the material issues in dispute. in 1989, lost tree recorded plat 52, which covered all 40 lots on gem island. stip. � 75. 359 (fed. cir. 2007). b. concluding aspects of development after filing a section 404 permit to fill approximately 9 acres of lake-bottom, to be developed in environmental protection. implicitly tied to the prior development, as the government argues, cannot be resolved on the ltvc015300, no overall development plan for the various properties involved with the 1968 associations have merged into jipoa. stip. � 125. as discussed supra, membership in the golf tree had capitalized infrastructure costs, employee and office overhead, and other development 1188. however, when in 1973 it applied for permits respecting three additional segments of florida's department of environmental regulation was in existence from the mid-1970s6 southeastern end of stingaree point, which tract eventually became plat 55. stip. � 103 an formed. background3 the appraisal did not consider the area that later became plat 57 for development. replatted in 1982. stip. � 33. in august 1980, lost tree submitted an application (the "1980 part of a larger tract that would, at a minimum, consist of the island of john's island, and perhaps a peninsula on the barrier island jutting westward into the indian river, known as the island of court by king stubbs and dace brown stubbs on the grounds that the wetlands lost tree sought pertinent lands. these upland tracts included approximately 35 acres located about five miles west of4 where planned development was continuing. plaintiff in deltona had obtained two approvals outside the [gated] community." stip. � 70 (internal quotation marks omitted). because those developments had occurred some years earlier and lost tree sought a permit for lost tree developed and sold in the early 1980s. and beach clubs in the community of john's island is independent of home ownership in the planned development, two permits were denied and one was granted by the corps in 1976. id. at d. plat 57 as an afterthought beginning in the late 1970s, lost tree embarked upon the development of what was then and the peninsula known as stingaree point at the southern edge of the island of john's island are installed water and sewer lines and "stubbed out" the lines to the six lots comprising plat 40, but parcel determination in loveladies harbor. loveladies originally acquired a 250-acre tract on stemmed from claims lost tree had asserted against the city and town for changing zoning 15 village, a residential community on approximately 450 acres located east of north palm beach, condominium "lots" as well as other adjacent property such as wetlands or submerged lands, the recitations that follow do not constitute findings of fact. instead, the recited factual3 golf cottages, and homes in the vicinity of the south golf course. stip. � 23. lost tree also called "north acreage" was sold to an unrelated party in 1999. stip. �� 84. conservation briefs was maggie sklar, greenberg traurig, llp, washington, d.c. the southeastern-most base of stingaree point, was recorded as plat 55 in 1998 and subsequently near reno, nevada, comprised of 2,425 acres that had been used for ranching and agriculture. acres were dedicated to the state. id. at 1180. the corps rejected the fill permit on the acreage corporation, ) denial of a clean water act section 404 conjunction with 53 acres of upland, big bear transferred the upland to forest properties, a times to acquire the remaining property covered by the 1968 option agreement. stip. � 13. the subsequently, the so-called "lost tree islands" were sold pursuant to a settlement the last significant development by lost tree on the island of john's island. plat 57 is located on a land-development enterprise. stip. �� 1-2. during the 1960s, lost tree developed lost tree property, amounting to a categorical taking. see palm beach isles assocs. v. united states, 208 for summary judgment, courts evaluate each motion on its own merits and resolve any reasonable might, or might not, have a bearing on the temporal aspects of lost tree's closure of develop- in the united states court of federal claims (reissued: may 27, 2010) parcel issue currently before the court. property contiguous to that acreage that lost tree had acquired in the 1980s not pursuant to the ) of an investment portfolio, and lost tree changed its tax status to suit this new focus. see supra, considered in determining the property denominator for analysis"); forest props., inc. v. united island is bisected by u.s. highway a-1-a, (2) a westerly peninsula of the barrier island known the atlantic ocean. stip. � 21; plaintiff's proposed findings of uncontroverted fact ("pfuf") imposition with the value that remains in the property, `one of the critical questions is although the prior decisions in loveladies harbor, forest properties, and palm beach isles developed. lost tree addressed the development of the barrier island first, in the 1970s, see to fill were not marginal wetlands. stip. � 116. lost tree intervened in the suit as a third-party upland and wetland tracts on a barrier island on the southern coast of new jersey. id. at 311. 8 * * * * * * * * * * * * * * * * * * * * * * * * ) nearly all of the other lands acquired under the 1968 option agreement had been sold and tree also addressed other property obtained under the 1968 option agreement by recording counsel was john kasbar, assistant district counsel, united states army corps of engineers, small peninsula called horse's head, and lost tree submitted a section 404 wetlands fill permit five additional transactions are reflected in a series of deeds recorded in the official books of the which a common development scheme applied to the parcel, (4) the extent to which the parcel on july 8, 1983, lost tree submitted another clean water act section 404 permit to the id. resources division, and brook b. andrews, attorney, natural resources section, environment were denied, treating the area embraced by those projects as part of the overall parcel subject to environmental regulation. stip. �� 44-45. in conjunction with the 1980 permit application,6 corps for the construction of a second canal, on the north end of the island of john's island, near development operations. at this time, the focus of lost tree's business shifted to management fraction.'" id. at n.4 (quoting keystone bituminous coal ass'n v. debenedictis, 480 u.s. 470, see pfuf ex. bb at id00314 (map), and the canal breached the isthmus that had connected the john's island from the barrier island, making the island of john's island a separate island; and cross-motions for summary judgment on the issue of the relevant parcel. [island of john's island] without having to go outside of the community," allowing homeowners sought a permit to dredge and fill the remaining 50.7 acres in 1988, the denial of which was the title � and the lake-bottom � an equitable title derived from the option. the court considered "the norman, developers planned a commercial, industrial, and residential development on a property & natural resources division, united states department of justice, washington, d.c. of as the "island of john's island" bordering the indian river, (3) various other islands in the indian proceeded with development of the upland. id. at 1363-64. suit was then filed seeking just case, lost tree has filed a motion for partial summary judgment respecting the proper parcel or had been included in the parties' submissions. at this juncture, the disputed issue has been timing of acquisition and development compared to the adoption of regulatory measures, but it today, the gated community of john's island has a homeowners' association known as what ultimately became a gated residential community known as "john's island," stip. � 18, county remained that had been acquired pursuant to the 1968 option agreement. lost tree the island of john's island and gem island, as purchased by lost tree in 1974 in exercise of the plaintiff, lost tree village corporation ("lost tree"), sought a wetlands fill permit for plat 57, into the indian river from the island of john's island, and placement of fill in various wetlands u.s.c. � 1344, and a comparable permit application to the state of florida's department of north (the "north acreage"). stip. � 11. and lost tree has been found, stip. � 42, and it appears that the preservation society was never the regulatory takings factor concerned with reasonable investment-backed expectations of the in 2001 and 2002, apart from the dispositions by sales or grants of conservation authority for 2.13 acres of wetlands that would need to be filled for the development of one does so not in determining the proper parcel but rather in the context particularly of evaluating issue centers on defining the relevant parcel of property. to address that salient aspect of the decl. � 37. in 2002, mr. bayer recommended that lost tree develop plat 57. stip. � 107. on concerning the degree of completion of lost tree's development within the community of john's approve its version of the 1980 permit application without modification. stip. �� 49-53. 311.7 acres of land in florida in 1956. palm beach isles, 208 f.3d at 1377. all but 50.7 acres of confidential or proprietary information on or before may 27, 2010. no redactions were u (plat 57 decision document (aug. 9, 2004)). parcels of land to be considered in the takings analysis, and the government has responded with a completed, with the exception of the entrance area, landscaping and a final layer of asphalt on the 72 fed. cl. 337, 348 (2006) (identifying "relevant factual considerations"), aff'd, 250 fed. appx. 14 james d. gette, trial attorney, natural resources section, environment & natural gem island. stip. � 75. development group that successfully pursued that permit application. stip. �� 89-93. the so- in 1968, lost tree shifted its development northward and entered into an option in indian river county, which principally consisted of the following parcels: (1) the "west deemed temporally severed from the preexisting pattern. if it should be so severed, then it might deltona corp. v. united states, 657 f.2d 1184 (ct. cl. 1981)). part) of stingaree point, see stip. � 88, and plat 54, covering three lots on horse's head, for15 agreement (the "1968 option agreement" or "option agreement") with the descendants of fred bearing, including: (1) the degree of contiguity, (2) the dates of acquisition, (3) the extent to relevant parcel, the so-called "denominator" of the takings fraction, is limited to that parcel for concerned. lost tree recorded plat 40 in november 1985, covering six lots on the south and east jerry stouck, greenberg traurig, llp, washington, d.c., for plaintiff. with him on the town's determination that the wetlands were marginal was supported by substantial evidence. charles f. lettow subject of palm beach isles' takings claim. id. at 1378. in determining the relevant parcel to be parties were requested to review this decision and to provide proposed redactions of any acreage"; (2) the so-called "lost tree islands," in total comprising approximately 500 acres requested. timing of transfers in light of the developing regulatory environment"); brace v. united states, environmentally or aesthetically. rather than enhance the value of the lands around it, i.e., the id. at 1085. as part of a mitigation plan, the developers were required to preserve or restore because this opinion and order might have contained confidential or proprietary1 the developer "as a single parcel for purposes of purchase and financing" and rejected the takings which the owner seeks a permit, in favor of "a flexible approach, designed to account for factual jipoa's dues or its rules. stip. � 126. jipoa is not affiliated with lost tree. the golf club island of john's island and gem island at the time of the permit application for plat 57. if it lost tree did not stub out such services to the then unplatted area that ultimately became plat 57. peninsula known as "stingaree point." stip. � 30. plat 57 is located on the north side of court's determination that the relevant parcel was the entire 62-acre tract covered by the initial its tax status. see stip. �� 75-76, 80-81. except for sale of the "west acreage" in 2004, which at 6 & n.10. permit was required. id. the second parcel, also consisting of three lots, was located on the submerged lands. stip. � 9. the option agreement separated the parcels into nine separate4 located on scattered islands in the intercoastal waterway; and (3) the "north acreage." stip. non-profit property owners' association. id. at 1086-87. the developers sought compensation economic reality of the arrangements, which transcended these legalistic bright lines." id. at agreement, entered 33 years earlier. in short, the record relative to lost tree's disposition of information within the meaning of rule 26(c)(1)(g) of the rules of the court of federal claims the first property lost tree developed was that covered by conveyances "a" and "b" on judge acknowledging that the proper-parcel issue is highly fact-dependent, the parties have john's island; (2) installation of a canal which physically separated the peninsula of the island of7 on august 2, 1982, lost tree submitted a revised proposal to the corps, followed by 9 in indian river county, near vero beach. stip. �� 7-8, ex. a (1968 option agreement (oct. 8, the development plan. id. at 1192. island to gem island. stip. �� 43, 47. the application also addressed construction of several economic aspects of development were particularly important to the result in forest option agreement has been found. stip. � 17. beginning in 1969, and continuing until roughly from the corps for what became marco island, florida, in 1964 and then in 1969. 657 f.2d at the island of john's island had occurred in 1997 (horse's head) and 1998 (plat 55). tree's takings claim, stip. � 14, and conveyance "d" which concerned gem island. stip. � 28. s/ charles f. lettow 39. lost tree focuses on the circumstances that plat 57 was a residual property remaining after 90% in existing upland areas requiring no governmental regulatory agency permitting," and the merged with the florida department of natural resources to form the florida department of submitted extensive joint stipulations of fact accompanied by voluminous documentary exhibits.2 compensation for a taking respecting the lake-bottom. id. the federal circuit affirmed the trial the state of florida, i.e., the department of environmental protection and sjrwmd, indian island of john's island with the barrier island. permit application to the corps for plat 57 later that month, on august 23, 2002. stip. � 111. stip. � 93. an earlier case, deltona corp., 657 f.2d 1184, which was addressed at some length in13 lp, an entity owned by some individuals who held interests in lost tree. see stip. �� 4, 76. by requirements to prohibit road access to those islands. stip. � 85; see lost tree village corp. v. be treated as having a relationship only to the other residual property lost tree owned on the rcfc 56(c); anderson v. liberty lobby, inc., 477 u.s. 242, 247-48 (1986). an issue is corps and a corresponding application to state. stip. �� 61-62. these applications sought of indian shores. stip. � 85. after those dispositions, lost tree had a relatively attenuated lost tree reaped significant benefits from development of those lands. def.'s cross-mot. at 38- (3) removal of an earthen plug at the southern tip of the island of john's island to allow water to stip. � 125. jipoa provides security services, maintenance of common areas, and architectural 4 analysis stip. � 35. no agreement between the entity described as the john's island preservation society company not in the business of selling real property. pfuf, attach. 1 (decl. of charles m. bayer review of the properties of its members, but owners in the community who are not members of 10 approximately 195 acres of wetlands, and the developer did so by deeding roughly 220 acres to a