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Wetlands Permit Offered by Army Corps After Previous Denial Does Not Impact Takings Claim
Description Court of Federal Claims ordered the government to pay property holders the value of their property lost when the government refused to issue wetlands construction permits for land previously slated for construction. Efforts by the government to offer construction permits after litigation began did not affect the takings claim.
Topic Environmental Law
Key Words Wetlands; Takings; Just Compensation
C A S E   S U M M A R Y
Facts The Cooleys bought 33 acres of land in Minnesota in 1972 for $146,500. The Cooleys intended to put in improvements and subdivide the property and received permission from the city in 1980 and were re-approved in 1990. The Army Corps then informed the Cooleys that the entire parcel was a wetland and would require a 404 permit to alter the wetland by dumping fill dirt or engaging in any other development. After various discussions and applications, the Corps denied a 404 permit in 1993. The Cooleys sued for just compensation. The Corps then suggested that it might allow limited development of the property and, at its own initiative, issued a permit in 1996 to develop 14 of the 33 acres. The Cooleys rejected this offer and proceeded with litigation. The Corps then offered the Cooleys a permit to develop the entire 33 acres. The Cooleys proceeded to court.
Decision There has been a takings and the government must compensate the Cooleys the fair market value of their property, $2,065,200. Once the Corps denied the Cooleys a 404 permit, the taking was effected. Their claim against the government became ripe at that point. The later efforts by the Corps to avoid litigation by offering "provisional permits" that were not applied for did not affect their right to proceed with this litigation. Denial of the permit reduced the property in value by 98.8%, which is a categorical taking. Just compensation requires market value to be paid for the lost value of property.
Citation Cooley v. U.S., 46 Fed.Ct. 538 (Ct. Fed. Claims, 2000)

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