         In the United States Court of Federal Claims
                                            No. 17-436L
                                      (Filed: March 20, 2020)

****************************
                                                         *
LEMON BAY COVE, LLC,                                     *
                                                         *         Fifth Amendment Taking; Cross-
                       Plaintiff,                        *         motions for Summary Judgment;
                                                         *
                                                                   Regulatory Taking; Categorical
               v.                                        *
                                                         *         Taking.
THE UNITED STATES,                                       *
                                                         *
                       Defendant.                        *
                                                         *
* * * * * * * * * * * * * * * * * * * * * * ** * * * *

      David Smolker, Allison Doucette, Smolker, Bartlett, Loeb, Hinds and Thompson, P.A.
100 North Tampa Street, Suite 2050, Tampa, Florida 33602, for Plaintiff.

       Jean Williams, Daniel Pinkston, United States Department of Justice (CO), Natural
Resources Section, 999 18th Street, South Terrace, Suite 370, Denver, Colorado 80202, Claudia
Hadiigeorgiou, Jacqueline Brown, United States Department of Justice, Natural Resources
Section, P.O. Box 7611, Washington, DC 20044, for Defendant.
_____________________________________________________________________________

                            OPINION AND ORDER
_____________________________________________________________________________

WILLIAMS, Senior Judge.
         Plaintiff, Lemon Bay Cove, LLC (“Lemon Bay”), the owner of mangrove wetlands in
Charlotte County, Florida, claims that the Army Corps of Engineers (the “Corps”) effected a taking
of its property by denying Lemon Bay a permit to bulkhead and fill the property, which prevented
residential development. Lemon Bay alleges a taking of both the property itself and its “vested
statutory special riparian right” arising under Florida law to bulkhead and fill the property.
Defendant disputes that any such “vested statutory special riparian right” exists, and argues that if
it does, it would be subject to reasonable regulation. Defendant also contends that there was neither
a regulatory nor a categorical taking because the property retains significant economic value.
        Currently before the Court are Plaintiff’s motion for partial summary judgment and
Defendant’s motion for summary judgment. Because there are genuine issues of material fact at
this juncture of the proceedings, the Court denies the parties’ cross-motions.



                                                  1
                                          Background 1
        The property consists of 5.64 acres of submerged lands, high quality forested mangrove
wetlands, and small upland regions on Sandpiper Key in Charlotte County, Florida. Am. Compl.
¶ 4; ECF No. 41, Ex. E at 1-2. The property includes tidal flats and open water and serves as a
habitat for various birds and fish, as well as several threatened or endangered species, including
the West Indian manatee and seaturtles. ECF No. 41, Ex. E at 2, 8, 30. The photograph below
depicts an aerial view of the property:




ECF No. 41, Ex. E at 2.
        The property is zoned “Medium Density Residential,” allowing single and multi-family
residential development. ECF No. 41, Ex. E at 35; Am. Comp. ¶ 14. The parties do not dispute
that almost all of the property is located within the “waters of the United States,” and that any
discharge of fill material on the property, and thus any development, requires a permit from the
Corps under Section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403 (“RHA”), and Section 404
of the Clean Water Act, 33 U.S.C. § 1344 (“CWA”). Am. Compl. ¶ 7.
        The property was originally held as sovereign land by the State of Florida. In 1917, Florida
granted to the “Trustees” 2 title to certain lands in the “islands, sand bars, and shallow banks” in
the tidal waters of Florida counties, and authorized the Trustees to sell such lands. 1917 Fla. Laws
116 § 1 (codified at Fla. Stat. §§ 253.12-253.17). In 1954, Mr. Earl Farr purchased the property

1
       This background is derived from the exhibits to the parties’ summary judgment papers,
depositions, and expert opinions.
       This background should not be construed as findings of fact.
2
        The “Trustees” were the Governor and Cabinet of the State of Florida, sitting as Trustees
of the Internal Improvement Trust Fund. ECF No. 46, Ex. 8.


                                                 2
from the Trustees as part of a larger undeveloped lot. ECF No. 30, Exs. A & C. At the time of
this purchase, Florida law provided:
       In case any island or submerged lands are sold by the Trustees, according to the
       provisions of §§ 253.12 and 253.13, the purchaser shall have the right to bulkhead
       and fill in same, as provided by § 309.01, without, however, being required to
       connect the sale with the shore or with a permanent wharf.
Fla. Stat. § 253.15 (1953). This statute was repealed in 1957. (Laws 1957, c. 57-362 § 10).
        Mr. Farr sold the lot to Mr. John Stanford in 1955. ECF No. 46, Ex. 3. In 1960, Mr.
Stanford had the lot platted, and was granted a permit from Charlotte County authorities to deposit
spoil and dredge materials on the lot. ECF No. 46, Exs. 5, 6. In 1961, Mr. Stanford received
permits from the Corps and the Trustees to fill the lot. ECF No. 46, Exs. 7, 8. As a result, by
1970, the northwest portion of the lot had been filled, but the property at issue remained
undeveloped. ECF No. 46, Ex. 9.
        In 1979, Mr. Stanford sold six parcels of the lot, including the property at issue: Sandpiper
Key Associates (“SKA”) acquired these six parcels in 1980. ECF No. 47, Exs. 22-24. SKA
constructed a condominium development on the northwest portion which had previously been
filled by Mr. Stanford, but left undeveloped the southern areas containing the property at issue.
ECF No. 47, Ex. 25 at US_001414. SKA failed to pay taxes on the subject property in the early
1990s, and in August 1993, Charlotte County sold the property at a tax sale to Mr. Gerald LeFave
for $12,100. ECF No. 30, Ex. D.
        Mr. LeFave sought to develop the property beginning in 2007, and hired a Florida
engineering firm specializing in site development preparation and surveying, DMK Associates
(“DMK”), and an environmental consulting firm, Ecological Services Associates (“ESA”), to
assist in acquiring permit approvals for his proposed development, “The Verandahs at Lemon
Bay.” ECF No. 47, Ex. 27 at 33-35; Ex. 28 at 23-24. This development would have required
removing almost all the mangroves on the property, constructing a bulkhead, and filling a portion
of the property to build 39 condominiums and a boat ramp. ECF No. 41, Ex. C at 2; ECF No. 47
Ex. 26 at LB-ID 002864. In initial discussions held around 2007, DMK informed Mr. LeFave that
the proposed development “would not be easy to permit because of the impacts of the wetlands.”
ECF No. 47, Ex. 27 at 35. 3
        In November 2007, Mr. LeFave obtained preliminary approval from Charlotte County
authorities for his development, subject to numerous conditions, including Corps’ permit approval.
ECF No. 46, Ex. 37 at US_000458-462, 473. Mr. LeFave then met with a local businessman, Mr.
Domink Goertz, to seek investment capital for his development. ECF No. 47, Ex. 38 at 26. After
reviewing Mr. LeFave’s development plan and receiving appraisals of the property, Mr. Goertz
advised I.H.T. Corporation (IHT), a Florida real estate company, to invest. Id. at 25-28. In 2008,

3
        Later, in a November 9, 2009 letter, ESA, the environmental consulting firm, warned Mr.
LeFave of significant pushback from local residents that “might push the project into a heightened
public concern category.” ECF No. 47, Ex. 29 at 7. Once a project falls into the heightened public
concern category, state permitting authority shifts from the Southwest Florida Water Management
District to the Trustees, meaning the Governor of Florida’s approval is required. Id.
                                                 3
IHT loaned $750,000 to Mr. LeFave, secured by a mortgage on the property. ECF No. 47, Ex. 39
at LB000006-07. Mr. LeFave later defaulted on the loan, and in June, 2010, the Florida court
granted summary judgment to IHT on the foreclosure. ECF No. 48, Ex. 43 at LB000065. The
Florida court found that the total amount due and owing was $875,878.02, and held that “[i]f the
total sum with interest and all costs of this action are not forthwith paid, the Clerk of Court shall
sell the property at public sale” in accordance with Fla. Stat. § 45.031 (1995). Id. On September
3, 2010, an advertised public foreclosure sale was conducted, and IHT purchased the property for
$15,200. ECF No. 48, Exs. 41-44.
       In September 2011, Mr. Goertz obtained another feasibility report from DMK regarding
development of the property. ECF No. 46, Ex. 2. DMK advised that “the majority of the site
contains Category I wetlands which are those wetlands considered critically necessary to sustain
the health of [Charlotte County’s] environment,” and stated that any development would need to
comply with Charlotte County’s newest “Comprehensive Plan.” Id. at LB000247. Approved by
the Charlotte County Board of County Commissioners on July 20, 2010, the Comprehensive Plan
was designed to avoid or mitigate impacts to local wetlands via wetlands restoration or local
wetland mitigation credit banking, if available. Id.
       Subsequently, IHT, along with two other entities, TSCK Investment, LLC and Real
Investment, LLC (which Mr. Goertz owns), created Lemon Bay, a limited liability company, to
develop the property. ECF No. 41, Ex. C ¶¶ 3-4; ECF No. 47, Ex. 38 at 42-46. Mr. Goertz is a
managing member and an authorized agent of Lemon Bay through Real Investment. ECF No. 41,
Ex. C ¶ 1; ECF No. 47, Ex. 38 at 19, 22. IHT transferred the property to Lemon Bay in November
2011, for $10. ECF No. 30, Ex. F.
       Lemon Bay began efforts to develop the property, proposing to fill 1.95 acres of the 5.64-
acre property and construct a 12-unit single family townhome development instead of the 39
condominiums (the “Project”). ECF No. 41, Ex. C ¶¶ 6-7. In February and April 2012, Lemon
Bay applied to the Southwest Florida Water Management District (“SWFMD”) and Corps for
required permits. ECF No. 41, Ex. D at 3; ECF No. 41, Ex. I at 2. In December 2012, Lemon Bay
received an Environmental Resource Permit from the SWFMD. ECF No. 41, Ex. D at 1. This
permit expired on January 5, 2018. ECF No. 48, Ex. 58.
         The Corps issued a public notice regarding the Project and received over 200 letters in
opposition. ECF No. 48, Ex. 59; ECF No. 48, Ex. 60 at LB-ID_002187. The federal
Environmental Protection Agency (“EPA”) and National Marine Fisheries Service expressed
concerns regarding the Project’s impact on mangrove wetlands, marine habitats, and local fish and
wildlife. ECF No. 48, Ex. 60 at LB-ID_002185-87. The EPA in particular designated the
mangrove wetlands on the property to be “aquatic resources of national importance (ARNI)” and
stated that the Project did not comply with Section 404(b) of the Clean Water Act, “which
prohibit[s] avoidable or significant adverse impacts to the aquatic environment.” ECF No. 49, Ex.
61 at 2.
         Obtaining a Section 404(b) permit presented another hurdle for Lemon Bay. In accordance
with applicable federal regulations, the Corps presumes less environmentally damaging alternative
sites for non-“water dependent” proposed developments exist. 40 C.F.R. § 230.10(a)(3); ECF No.
41, Ex. E at 39, ¶ 5.1. Under federal regulations, a development is “water-dependent” when “the
activity associated with a discharge which is proposed for a special aquatic site” requires “access

                                                 4
or proximity to[,] or siting within[,] the special aquatic site in question to fulfill its basic purpose.”
40 C.F.R. § 230.10(a)(3). The Corps determined that Lemon Bay’s proposed development was
non-water dependent because the Project’s “basic project purpose” was “to construct houses, [and
did] not require access . . . [to] a special aquatic site.” ECF No. 41, Ex. E at 39.
        The Corps cannot issue a Section 404(b) permit for a non-water dependent development
unless the applicant “clearly demonstrate[s]” that no alternative sites are available. 40 C.F.R. §
230.10(a)(3); ECF No. 41, Ex. E at 38, ¶ 5.0. This requirement is known as the “least
environmental[ly] damaging practicable alternative” test. ECF No. 41, Ex. E at 39, ¶ 5.1. Lemon
Bay submitted a “Practical Alternatives Narrative” in December 2012, which analyzed three
proposed alternative sites in the Charlotte County area. ECF No. 49, Ex. 63 at SAJ_AR-790. Of
the three, two were not for sale and the third would have cost $1.25 million to purchase. Id. at
SAJ_AR-790-91. Lemon Bay further represented that, as the property was acquired due to
foreclosure, development of this specific land was the only way for the “lender, and now current
owner” to avoid “incurring a total loss on this investment.” Id. at SAJ_AR-00789.
        In an attempt to make the Project “water-dependent,” in February 2013, Lemon Bay
amended the Project application to include a 13-slip dock: this necessitated a new public notice
period. ECF No. 49, Ex. 65. According to the Corps, inclusion of the dock raised new concerns
regarding the West Indian manatee and ran afoul of the Endangered Species Act and the Marine
Mammal Protection Act. ECF No. 49, Ex. 66. Lemon Bay responded by reducing the number of
slips on the dock from 13 to nine, and another public notice period commenced. ECF No. 49, Ex.
67. The parties’ back and forth continued for two-and-a-half years, with the Corps contending that
Lemon Bay had not adequately demonstrated that no less environmentally-damaging alternative
sites existed, and Lemon Bay arguing that the Project was the “lowest impact possible to allow the
owner to recoup the losses that were previously incurred.” ECF No. 49, Ex. 70 at SAJ_AR_01223-
32.
        The Corps denied Lemon Bay’s permit application with prejudice on February 1, 2016,
finding that it did “not comply with Section 404(b)(1) guidelines” and was “contrary to the public
interest.” ECF No. 41, Ex. F. Lemon Bay administratively appealed the decision on March 29,
2016; the Corps denied that appeal on December 19, 2016. ECF No. 41, Ex. I at 25.
                                         Procedural History
        Lemon Bay filed this action on March 27, 2017, and filed its amended complaint on May
4, 2017. ECF No. 1; ECF No. 5. In its four-count amended complaint, Lemon Bay alleges four
takings theories. Counts I and III allege “categorical” takings of Lemon Bay’s “vested statutory
right to bulkhead and fill the property,” and of the property itself, under Lucas v. South Carolina
Coastal Council, 505 U.S. 1003 (1992). Am. Compl. ¶¶ 49, 70. Counts II and IV allege
“regulatory” takings under the factors set forth in Penn Central Transportation Co. v. City of New
York, 438 U.S. 104 (1978), of the same “vested statutory right” and of the property. Am. Compl.
¶¶ 61, 82.
        Lemon Bay moved for partial summary judgment on Counts I and III, its Lucas categorical
taking claims, but did not seek summary judgment on Counts II and IV, its Penn Central regulatory
takings claims. Defendant moved for summary judgment on all counts. The Court heard oral


                                                    5
argument on the cross motions in Fort Myers, Florida, on November 22, 2019, and December 3,
2019, via telephone.
                                            Discussion
Summary Judgment Standard
         Summary judgment is appropriate where there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a); see also Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A genuine dispute is one that “may
reasonably be resolved in favor of either party.” Liberty Lobby, 477 U.S. at 250. A fact is material
if it “might affect the outcome of the suit.” Id. at 248. The moving party bears the burden of
establishing the absence of any material fact, and any doubt over factual disputes will be resolved
in favor of the non-moving party. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390
(Fed. Cir. 1987). Once this burden is met, the onus shifts to the non-movant to point to sufficient
evidence to show a dispute over a material fact that would allow a reasonable finder of fact to rule
in its favor. Liberty Lobby, 477 U.S. at 256-57. If the non-movant does so, there is a genuine
issue of fact that requires a trial. Id. at 257.
        A court does not weigh each side’s evidence when considering a motion for summary
judgment, but the “inferences to be drawn from the [underlying] facts . . . must be viewed in the
light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S.
654, 655 (1962) (per curiam). When opposing parties both move for summary judgment, “the
court must evaluate each party’s motion on its own merits, taking care in each instance to draw all
reasonable inferences against the party whose motion is under consideration.” Mingus
Constructors, 812 F.2d at 1391. Cross-motions for summary judgment “are not an admission that
no material facts remain at issue,” since “the separate summary judgment motions of each party
may focus on different legal principles” and rely on different sets of facts. Massey v. Del Labs.,
Inc., 118 F.3d 1568, 1573 (Fed. Cir. 1997) (citing United States v. Fred A. Arnold, Inc., 573 F.2d
605, 606 (9th Cir. 1978)). “Each party carries the burden on its own motion to show entitlement
to judgment as a matter of law after demonstrating the absence of any genuine disputes over
material facts.” Id. “[S]ummary judgment is inappropriate if the factual record is insufficient to
allow the Court to determine the salient legal issues.” Mansfield v. United States, 71 Fed. Cl. 687,
693 (2006); Blue Lake Forest Prod., Inc. v. United States, 86 Fed. Cl. 366, 381 (2009).
Regulatory and Categorical Takings
        The Fifth Amendment to the United States Constitution provides that private property shall
not “be taken for public use, without just compensation.” U.S. Const. amend. V. “Supreme Court
precedent has long recognized that a taking can be accomplished by a physical invasion of the
property or by the imposition of a governmental regulation.” Bass Enters. Prod. Co. v. United
States, 381 F.3d 1360, 1365 (Fed. Cir. 2004). When a taking by government regulation is alleged,
“a court must typically conduct a complex factual assessment to determine whether compensation
is owed to the property holder.” Id.; see also Penn Central, 438 U.S. at 124 (describing analysis
of regulatory takings claims as “essentially ad hoc, factual inquiries” dependent largely “upon the
particular circumstances in that case”) (internal quotations omitted). “Thus, due to the ‘fact-
intensive’ nature of takings claims, courts are typically reluctant to decide such claims at the


                                                 6
summary judgment stage, preferring to wait for a trial to fully develop the factual record.” Res.
Invs., Inc. v. United States, 85 Fed. Cl. 447, 466 (2009).
       “Under Penn Central, courts use a three-factor analysis to assess claimed regulatory
takings: (1) character of the governmental action, (2) economic impact of the regulation on the
claimant, and (3) extent to which the regulation interfered with distinct investment-backed
expectations.” Cienega Gardens v. United States, 331 F.3d 1319, 1337 (Fed. Cir. 2003);
Guggenheim v. City of Goleta, 638 F.3d 1111, 1120 (9th Cir. 2010) (stating that Penn Central’s
reference to “distinct” means “capable of being easily perceived, or characterized by
individualizing qualities” and “‘[d]istinct investment-backed expectations’ implies reasonable
probability” of recovery on the investments).
        The first factor addresses whether a burden benefiting the public was “placed
disproportionately on a few private property owners.” Cienega Gardens, 331 F.3d at 1338. The
second factor, the economic impact of the regulation on the claimant, is “measured by the change,
if any, in the fair market value caused by the regulatory imposition.” Fla. Rock Indus., Inc. v.
United States, 18 F.3d 1560, 1567 (Fed. Cir. 1994) (internal citation omitted). “In determining the
severity of the economic impact, the owner’s opportunity to recoup its investment or better, subject
to the regulation” is considered. Id.
       Under the third factor, a plaintiff must demonstrate objectively reasonable investment-
backed expectations. Good v. United States, 189 F.3d 1355, 1360 (Fed. Cir. 1999); see
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005-06, (1984) (“A reasonable investment-backed
expectation must be more than a unilateral expectation or an abstract need.”) (internal quotations
omitted). This factor incorporates “an objective, but fact-specific inquiry into what, under all the
circumstances, the [plaintiffs] should have anticipated.” Cienega Gardens, 331 F.3d at 1346.
        In Lucas, the Supreme Court set forth a specific rule for a narrow subset of regulatory
takings cases: compensation is required “where [a] regulation denies all economically beneficial
or productive use of the land.” 505 U.S. at 1015. Commonly referred to as “categorical” takings,
such cases are rare--Lucas’s holding is limited to the “extraordinary circumstance” where
absolutely “no productive or economically beneficial use of land is permitted.” Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 330 (2002) (emphasis omitted). See,
e.g., Lost Tree Village Corp. v. United States, 115 Fed. Cl. 219, 231 (2014), aff’d, 787 F.3d 1111
(Fed. Cir. 2015) (determining that when the Corps denied a central Florida property owner a
Section 404 permit, the value of the property with a permit would have been $4,245,387.93 but
without the permit, only $27,500, and that this 99.4% diminution of value “constitute[d] a
categorical taking under Lucas”).
       If a court finds that a Lucas “categorical” taking has occurred, the takings inquiry ends,
and no analysis under Penn Central is performed. “Only when a taking is non-categorical does the
court embark on the fact-based inquiries dictated by Penn Central.” Sartori v. United States, 67
Fed. Cl. 263, 274 (2005) (citing Maritrans Inc. v. United States, 342 F.3d 1344, 1351 (Fed. Cir.
2003)). For that reason, the Federal Circuit has stated that “it is often important to determine at
the outset whether a particular claimed taking was ‘categorical’ or not.” Rith Energy, Inc. v.
United States, 247 F.3d 1355, 1362 (Fed. Cir. 2001) (on rehearing).



                                                 7
Genuine Issues of Material Fact Preclude Summary Judgment on Lemon Bay’s Claims
         In its amended complaint, Lemon Bay alleges regulatory takings under both Penn Central
and Lucas. Thus, the economic impact of the permit denial on Lemon Bay, Lemon Bay’s
reasonable investment-backed expectations in development of the property, whether Lemon Bay
has been deprived of all economically beneficial or productive use of the property, and the
diminution in property value caused by the permit denial are integral to Lemon Bay’s claims. Penn
Central, 438 U.S. at 124; Lucas, 505 U.S. at 1015. As stated above, a genuine dispute of fact exists
if an issue could “reasonably be resolved in favor of either party.” Liberty Lobby, 477 U.S. at 250.
         The Court finds that genuine disputes of material fact exist as to:

         •      The reasonableness of IHT’s investment-backed expectations.
                    o Plaintiff argues that it had reasonable investment-backed expectations
                      because the right to bulkhead and fill accompanied the original sale of the
                      property, similar development existed nearby, 4 Charlotte County had
                      granted preliminary site approvals for development of the property in
                      November 2007, and SWFMD approved an Environmental Resource
                      Permit in December 2012. ECF No. 52 at 27-28; ECF No. 41 at 4, ECF No.
                      47, Ex. 37 at US_000458-462, 473; ECF No. 41, Ex. D at 1.
                    o Defendant argues that Plaintiff had no reasonable investment-backed
                      expectations that it would be able to bulkhead and fill the property, as
                      Lemon Bay and its predecessor-in-interest, Mr. LeFave, had been warned
                      that development approvals could be difficult to obtain due to the protected
                      wetlands on the property. ECF No. 46 at 13-14, 16-17. The extent to which
                      any such warnings addressed obtaining the Corps permit is unclear.
                      Deposition testimony of Mr. Kreg Maheu, a DMK employee, indicates that
                      DMK warned Mr. LeFave in 2007 “that there were going to be some hurdles
                      he would have to overcome with [SWFMD] and the Corps of Engineers for
                      his permitting and that there was a risk associated with it.” ECF No. 47,
                      Ex. 27 at 36. Mr. Maheu testified that, in connection with its September
                      2011 report evaluating the feasibility of the property’s successful
                      development, DMK warned Mr. Goertz about “risks” associated with
                      developing the property. Id. at 94. The record lacks details on the specifics
                      of these conversations, or the nature of the referenced risks.

         •      The character of the Governmental action.
                    o Lemon Bay argues that the relative burden of the permit denial to it
                      significantly outweighs any minor benefit to the public in preserving the
                      property’s mangrove wetlands and associated plant and animal habitat, as
                      the property at issue is “.018 percent of the total mangrove shoreline of
                      Charlotte Harbor.” ECF No. 64 at 104-05. Further, in Lemon Bay’s view,

4
         The record lacks any specifics about such similar nearby development. See ECF No. 52
at 28.
                                                   8
                       the permit denial means that Lemon Bay “can’t use the property at all.” Id.
                       at 104.
                   o Defendant contends that Lemon Bay “is not being singled out or treated
                     differently from any other owners of property in the area,” as any owner of
                     similar mangrove wetlands would be subject to the same Corps permit
                     requirement. ECF No. 64 at 77-78.

       •       The amount of IHT’s investment in the property.
                   o Lemon Bay argues that IHT’s interest in the property originated with its
                     $750,000 loan to Mr. LeFave in 2008, and that $750,000 is an accurate
                     appraisal of IHT’s investment (and potential loss) in the property. ECF No.
                     46 at 15; ECF No. 41 at 4; ECF No. 52 at 2.
                   o Defendant posits that Lemon Bay’s investment was only $15,200, as IHT
                     purchased the property for $15,200 at the 2010 foreclosure auction. 5 ECF
                     No. 46 at 35.

       •       The property’s value with and without the permit.
                   o Based upon the opinion of its expert appraiser, Mr. Linwood Gilbert, 6
                     Lemon Bay alleges that, assuming the property’s “highest and best use,” the
                     value with the permit would be $3,885,000, while without the permit, the
                     property is only worth $12,500. ECF No. 41 at 9.
                   o Defendant’s expert, Mr. Carlson, 7 determined that the property would be
                     worth $570,000 without the permit if used to generate Transfer Density


5
       Defendant notes that Lemon Bay itself paid only a “$10 nominal investment” to acquire
the property from IHT. ECF No. 46 at n.17. Given IHT’s ownership interest in Lemon Bay,
Defendant attributes IHT’s $15,200 investment in the property to Lemon Bay for the exclusive
purpose of its motion for summary judgment, and “reserves the right to argue that IHT and Lemon
Bay should be treated as entirely separate corporate entities for the purpose of the takings analysis.”
Id.
6
        Mr. Gilbert is certified by the State of Florida as a “General Real Estate Appraiser” and is
the principal of Urban Realty Solutions, a Florida real estate research and appraisal firm. ECF No.
41, Ex. L at 1, 7. He has a B.A. in Business Administration from the University of Georgia, and
has over 40 years of real estate appraisal experience in Florida. Id. at 1, 9.
7
        Mr. Carlson is certified by the state of Florida as a “General Real Estate Appraiser,” and
has a private real estate appraisal and consultation practice, Carlson, Norris and Associates, Inc.,
in Fort Myers, Florida. ECF No. 49, Ex. 74 at 4-5. He holds a B.S. in Business Administration
from the University of Southern Mississippi and has served as a Special Magistrate to the Lee and
Charlotte County Value Adjustment Boards. Id. at 173, 178.

                                                  9
                      Units (“TDUs”). 8 ECF No. 46 at 26. As Defendant acknowledges, “there
                      is a genuine issue of material fact regarding the value of the property before
                      and after the permit denial, and thus, the economic impact of the Corps’
                      action.” ECF No. 46 at 26.

       •       Whether a market exists for the TDUs the property would generate.
                  o Defendant’s expert, Mr. Andy Dodd, 9 stated that, even without the permit,
                    the property could be used to generate 42 TDUs, and “could be sold for
                    between $504,000 and $630,000 in the Charlotte County TDU market.”
                    ECF No. 46 at 24.
                  o Plaintiff’s expert, Dr. Henry H. Fishkind, 10 disputed Mr. Dodd’s opinion,
                    stating that it is “highly unlikely and speculative that [the Lemon Bay Cove
                    TDUs] . . . could command premium pricing,” given the “oversupply of
                    almost 84%” in the TDU market. ECF No. 52, Ex. H at 7. Another of
                    Plaintiff’s experts, Mr. David W. Depew, 11 stated that only 9.4% of
                    available TDUs in Charlotte Country have been used over the last 15 years.
                    ECF No. 52, Ex. G at 11.
       Given these genuine disputes of material fact and the lack of adequate development of the
record at this juncture, summary judgment may not be granted for either party.




8
        A real estate developer can purchase TDUs as “offsets” to mitigate the environmental
impact of a proposed development. See ECF No. 47, Ex. 25 at US_001426-38. Lemon Bay itself
proposed purchasing “mitigation credits” in its application to a Florida water management district
for a permit for the Project. Id.
9       Mr. Dodd is a licensed real estate broker in Charlotte County, Florida who owns a local
real estate company, Peninsula Property. ECF No. 49, Ex. 73. Mr. Dodd has “specialized in the
Charlotte County Transfer Density Unit market since 2004,” and assisted with the drafting and
adoption of Charlotte County’s 2004 Transfer Density Unit ordinance. ECF No. 46 at 50; ECF
No. 49, Ex. 73 at 4.
10
       Dr. Fishkind is an economist and the President of Fishkind & Associates, Inc., a Florida-
based economic and financial consulting firm. ECF No. 41, Ex. K at 1. He has a Ph.D. in
economics “with specialties in Urban and Regional Economics and in Econometrics.” Id.
11
       Dr. Depew is “a Principal and Co-founder of Morris-Depew Associates, Inc., a land-
planning, civil engineering, landscape architecture and surveying firm” in Fort Myers, Florida.
ECF No. 52, Ex. G at 1. He has Ph.D. from Kennedy Western University, specializing in public
administration. ECF No. 41, Ex. B at 2. He has approximately 35 years of experience as a land
planner in Florida. Id.

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                                      Conclusion
      Plaintiff’s Motion for Partial Summary Judgment and Defendant’s Motion for Summary
Judgment are DENIED.


                                        s/Mary Ellen Coster Williams
                                        MARY ELLEN COSTER WILLIAMS
                                        Senior Judge




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