Lemon Bay, LLC, acquired 5.64 acres of land on Sandpiper Key in Charlotte County,  Florida. The parcel consisted of submerged areas, high-quality-forested-mangrove wetlands, and small upland regions. Lemon Bay intended to construct a 12-unit, single-family townhome development on the site and sought the requisite local and federal approvals to fill 1.95 acres of the parcel.

In December 2012, the Southwest Florida Water Management District granted Lemon Bay an Environmental Resources Permit. But, after almost three years of back and forth with the U.S. Army Corps of Engineers, the Corps denied Lemon Bay’s permit application with prejudice on February 1, 2016, finding that the application did not “comply with Section 404(b)(1) guidelines” and was “contrary to the public interest.”

Lemon Bay filed a federal taking lawsuit in the U.S. Court of Federal Claims on March 27, 2017, and later amended its complaint on May 4, 2017. The complaint asserted a per se taking under Lucas v. South Carolina Coastal Council, and a regulatory taking under Penn Central Transp. Co. v. New York City.

Lemon Bay moved for partial summary judgment on its categorical taking claim, and the Government cross-moved for summary judgment on all counts. The Court denied both motions.

The Court found that genuine disputes of material fact and inadequate development of the record made granting Lemon Bay’s motion for partial summary judgment on its categorical taking claim and the Government’s cross-motion for summary judgment on Lemon Bay’s regulatory taking claim inappropriate.

The Court identified disputed material facts regarding the reasonableness of Lemon Bay’s investment-backed expectation, the character of the Governmental action, the amount of investment in the property, the property’s value with and without a permit, and whether a market exists for the mitigation credits the undeveloped property could generate.

Read the full decision here.