

                        United States Court of Appeals for the Federal Circuit




                                               03-5154

                                 LINDA VAIZBURD and ARKADY VAIZBURD,

                                                                    Plaintiffs-Appellants,

                                                  v.

                                            UNITED STATES,

                                             Defendant-Appellee.




      Roger J. Marzulla, Defenders of Property Rights, of  Washington,  DC,  argued  for  plaintiffs-
appellants.  With him on the brief was Nancie G. Marzulla.

      Kathryn E. Kovacs, Appellate  Section,  Environment  and  Natural  Resources  Division,  United
States Department of Justice, of Washington, DC, argued for  defendant-appellee.   With  her  on  the
brief were Thomas L. Sansonetti, Assistant Attorney General; and Richard A. Barrett.

Appealed from:    United States Court of Federal Claims

Senior Judge Eric Bruggink














                        United States Court of Appeals for the Federal Circuit

                                               03-5154

                                 LINDA VAIZBURD and ARKADY VAIZBURD,

                                                   Plaintiffs-Appellants,
                                                  v.

                                            UNITED STATES,

                                                   Defendant-Appellee.
                       ___________________________


                       DECIDED: October 1, 2004
                       ___________________________

Before RADER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and DYK, Circuit Judge.

Opinion for the court filed by Circuit Judge DYK.    Opinion  dissenting  in  part  filed  by  Senior
Circuit Judge FRIEDMAN.

DYK, Circuit Judge.

      The appellants, Linda and Arkady Vaizburd (“the Vaizburds”), seek compensation for  a  physical
taking of an easement. The Court of Federal Claims concluded that the government’s  sand  deposit  on
the Vaizburds’ property constituted the physical taking  of  a  permanent  easement,  but  it  denied
recovery on the ground that the Vaizburds failed to establish any decline in the  fair  market  value
of their property.  Vaizburd v. United States, 57 Fed. Cl. 221 (2003).  We agree with  the  Court  of
Federal  Claims  that  the  Vaizburds  have  not  established  that  they  are  entitled  to  recover
compensation for a decline in the market value of their property.  However, we vacate  the  Court  of
Federal Claims’ decision and remand for further consideration of the Vaizburds’ claim that  they  are
entitled to recover on a cost of cure theory.
                                              BACKGROUND
      The Sea Gate Community (“Sea Gate”) is a gated community on the southern side of  Coney  Island
in Brooklyn, New York that includes seaside homes facing a private beach.   The  Vaizburds  purchased
their waterfront home on Oceanview Avenue in the Sea Gate Community for $320,000 in  1989.   As  part
of the purchase, the Vaizburds acquired a seaward lot in the  back  of  their  home.   This  lot  was
completely submerged at the time of purchase.  The Vaizburds’ home is referred to as  Lot-3  and  the
submerged lot is Lot-103.
      In the early 1990s the Army Corps of Engineers (the “Corps”) launched a  project  to  replenish
sand on Coney Island beaches (the “Coney Island project”), which had severely eroded over the  years.
 By 1995, when the initial stage of the Coney Island project was completed, the Corps  had  deposited
approximately three million cubic yards of sand on the Coney Island beaches.   Meanwhile,  since  the
mid 1990s,  Oceanview  Avenue  lots  in  Sea  Gate,  including  the  Vaizburds’  Lot-3  and  Lot-103,
experienced sand accretion.  It is uncontested that this sand  accretion  was  caused  by  the  Coney
Island project and that sand simultaneously diminished from  the  beach  as  it  accumulated  on  the
Oceanview Avenue lots.  Oceanview  Avenue  residents  affected  by  this  sand  accretion  repeatedly
complained to the Corps.  By 2000, the Vaizburds’ previously submerged property was covered in  sand,
forming a beach of sorts, and sand had also accumulated on Lot-3.  On March 20, 2000,  the  Vaizburds
brought suit in the Court of Federal Claims, alleging that the accumulation of  sand  resulting  from
the Coney Island project constituted a compensable taking of  easements  on  Lot-3  and  Lot-103  and
seeking $20,000,000 in damages.
      After trial, the Court of Federal Claims concluded that  a  taking  had  occurred.   The  court
found that “[t]here [was] no question that the result of the  Corps’  actions  [was]  the  continuing
presence of sand on the plaintiffs’ property”; that “[i]t [was] the inevitable and  recurring  result
of official government action in maintaining the Coney Island beaches”; and that “[t]he  Corps  ha[d]
imposed an easement for the deposition of sand onto both lots 103 and 3.”  Vaizburd, 57 Fed.  Cl.  at
228.  The court also found that sand accretion on the  Vaizburds’  property  was  “unattractive”  and
that the Vaizburds “have paid to have sand removed at least once from their backyard.”  Id. at 226.
      Despite the Court of Federal Claims’ conclusion that the Vaizburds “satisfied every element  of
a claim for the taking of an easement to deposit sand,” id. at 233, it  denied  takings  compensation
because “there [was] no apparent damage” to the Vaizburds’ property.  Id.  The court  held  that  the
Vaizburds were required to show actual damages because nominal damages were  not  available  as  “the
waiver of sovereign immunity [for takings claims under the Tucker Act] does not extend to nominal  or
exemplary damages.”  Id.  The court concluded that the Vaizburds “failed . .  .  to  prove  that  the
presence of this sand  has  diminished  the  value  of  their  property”  and  that  “[t]hey  cannot,
therefore, prove a compensable taking.”  Id.
      Indispensable to a market value analysis is a determination of the date  of  the  taking.   The
court recognized that “[t]he date of taking is problematic in  this  case  because  the  erosion  and
deposition were a gradual process with cumulative effects of varying magnitude.”  Id.  at  230.   The
court rejected both the Vaizburds’ dates (a before-date  of  September  1995  and  an  after-date  of
October 1995) and the government’s dates (a before-date of April 1996,  and  an  after-date  of  June
1998, assuming a taking sometime in the interim), setting the date  instead  at  December  31,  1995,
when “the process of accretion had sufficient impact, i.e., impeded the  plaintiffs’  access  to  the
water, and was sufficiently noticeable and recurring to constitute a taking.”  Id.
      The parties agreed on the after-value of the Vaizburds’ property and differed simply as to  the
before-value.[1]  Id. at 231.  The Vaizburds’ appraisal, prepared by  Mr.  Vaizburd  himself,  valued
the property at $16,229,520 before the taking.  Id.   The  Court  of  Federal  Claims  rejected  this
appraisal, explaining that this figure  represented  an  “exaggerated  view  of  the  value”  of  the
property (purchased only six years earlier for $320,000) and was based exclusively  on  a  comparison
of two other homes that were not “comparable” properties.  Id.  These other homes were  in  different
neighborhoods of Brooklyn and were  “superior”  properties.   Id.   The  court  then  considered  the
government’s valuation, concluding that it was properly based on comparable house sales  in  the  Sea
Gate community.[2]  Id. at 232.  The government appraiser concluded  that  “[t]he  before  and  after
values were both $315,000.”  Id.  The court explained  that  “the  only  possible  relevant  line  of
attack” against the government’s appraisal was that the “after values were not as high as they  would
have been, but for the taking.”  Id. at 233.  The court, however, noted that this argument  was  “not
advanced by the plaintiffs, and, in any event, there [was] no evidence to support it.”  Id.  at  233.
Accepting the government’s appraisal as based on a proper comparison of “the best comparable[ ]  .  .
. house sales along Oceanview Avenue,” id. at 232,  the court held that the Vaizburds had not  proven
that the market value of their property diminished as a result of sand accretion.
      Finally, the court refused to award compensation based on a cost of  cure  approach,  i.e.,  it
declined to award the costs of sand removal.  The court stated:
      We do not have sufficient evidence from which to fashion a remedy from  the  costs  related  to
      sand removal: Costs to cure and other elements resultant from the taking are only admissible on
      the issue of just compensation if they are  tied  to  their  effect  upon  fair  market  value.
      Normally they would not be independent elements of compensation, in other words, unless it  can
      be shown that the reduced after value assumes some continuing mitigation cost.


Id. at 233 n.9 (internal quotation marks and citations omitted).   This  passage  is  unclear  as  to
whether the court held either:  (1) that as a legal matter cost of  cure  is  only  relevant  to  the
extent that it affects the overall market value of the taken property;  or  (2)  that  the  Vaizburds
failed to supply sufficient evidence of cost of cure to support compensation under such a theory.
      The court summarized the implications of its decision as follows: “This  means  only  that  the
plaintiffs cannot recover on these or any other identical facts.  This also means, however, that  the
government does not own an easement.  At a minimum, this suggests that, if the facts  change,  a  new
claim would not be barred.”  Id. at 233 n.12.
      The Vaizburds filed a motion for reconsideration, which was  denied  on  July  28,  2003.   The
Vaizburds timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
                                              DISCUSSION
      We review the Court of Federal Claims’ legal conclusions without deference, and we  review  the
court's factual findings for clear error.  Ferreiro v. United States, 350 F.3d 1318, 1324 (Fed.  Cir.
2003).
                                                  I
      Government action that causes sand accretion, flooding, or accumulation of other  materials  on
a landowner’s property may constitute a physical taking.  See, e.g., Pumpelly v. Green  Bay  &  Miss.
Canal Co., 80 U.S. (13 Wall) 166,  181  (1871).[3]   However,  “[n]ot  every  ‘invasion’  of  private
property resulting from government activity amounts to an appropriation” that  is  compensable  as  a
taking.  Ridge Line, Inc. v. United States, 346 F.3d 1346, 1355 (Fed. Cir.  2003).[4]   In  order  to
warrant compensation as a taking (as distinguished from a tort), the governmentally induced  invasion
must meet a two-part test.  First, a property owner must prove that the asserted government  invasion
of property interests allegedly effecting a taking “was the  predictable  result  of  the  government
action,” either because it was “the direct or necessary result” of the act or because it was  “within
contemplation of or reasonably to be anticipated by the government.”  Id. at 1356;  see  also,  e.g.,
Sanguinetti, 264 U.S. at 150; John Horstmann Co. v. United States, 257 U.S. 138, 146 (1921);  Barnes,
538 F.2d at 871; Eyherabide, 345 F.2d at 570; Columbia Basin, 132 F. Supp. at 709; Cotton  Land  Co.,
75 F. Supp. at 233-34.  Second, the property owner must  show  that  “the  government’s  interference
with any property rights of [the plaintiff] was substantial and frequent enough to rise to the  level
of a taking,” Ridge Line,  346  F.3d  at  1357,  or,  in  other  words,  that  the  interference  was
“inevitably recurring,” Nat’l By-Products, 405 F.2d at 1273.  See also, e.g., Dickinson, 331 U.S.  at
749; Cress, 243 U.S. at 328; Barnes, 538 F.2d at 870.
      There is no contention here by the government that the Vaizburds failed to establish these  two
requirements.  Because the government concedes that the sand accretion  amounted  to  a  taking,  the
only issue on appeal is the amount of compensation, if any, to be awarded.
                                                  II
      The Court of Federal Claims properly held that it  could  not  award  nominal  damages  if  the
Vaizburds failed to prove actual damages.  Marion & Rye Valley Ry. Co. v.  United  States,  270  U.S.
280, 282 (1926); see also Brown v. Legal Found. of Wash., 538 U.S. 216, 236 (2003).  A comparison  of
the property’s market value before and after a taking is  one  appropriate  method  of  valuation  in
circumstances such as these.  See United States v. Miller, 317 U.S. 369,  376  (1943).   However,  we
agree with the Court of Federal Claims that the Vaizburds failed to  show  that  the  sand  accretion
caused a decline in the market value of their property.
                                                  A
      Here, both  the  government’s  and  the  Vaizburds’  appraisals  employed  a  comparable  sales
methodology in determining the market value of the property before and after the taking.   The  Court
of Federal Claims rejected the Vaizburds’ before-value of the property at $16,229,520 because it  was
based on comparisons with what “seem[ed] to  be  .  .  .  very  different  type[s]  of  house[s]”  in
different parts of Brooklyn.  Vaizburd, 57 Fed. Cl. at  231.   Conversely,  the  court  accepted  the
government’s valuations, finding that  the  appraiser  was  a  “fully  qualified”  and  “experienced”
appraiser and that the valuations were based on “the best comparables in this case . . . [which]  are
house sales along Oceanview Avenue.”  Id. at 232.  The Vaizburds argue,  however,  that  the  court’s
holding as to actual damages was erroneous for several reasons.  None of these arguments  has  merit.

      First, the Vaizburds concede that “the usual way of ascertaining damages” in  easement  takings
claims is to calculate the property’s market value based on comparable sales, (Br. for  Appellant  at
12), but they also claim that comparable sales was an inappropriate  methodology  for  this  case.[5]
The Vaizburds correctly point out that the comparable sales  approach  is  not  the  only  method  of
determining market value, see, e.g., United States v. Commodities Trading Corp., 339  U.S.  121,  126
(1950); United States v. Cors, 337 U.S. 325, 333-34 (1949); Unites States v. Causby,  328  U.S.  256,
261 (1946); United States v. General Motors Corp., 323 U.S. 373, 379 (1945), but the  Vaizburds  have
not offered any evidence, or even  suggested,  an  appropriate  alternative  approach  for  computing
market value in this case.  Indeed, the Vaizburds’ own appraisal report  rejected  other  methods  of
calculating market value.  Much less have the Vaizburds established that the Court of Federal  Claims
erred in using comparable sales to determine the market value of their property. See, e.g.,  Servalli
v. United States, 845 F.2d 1571, 1575  (Fed.  Cir.  1988)  (“[Trial]  courts  necessarily  must  have
considerable discretion to select the method of valuation that is most appropriate in  the  light  of
the facts of the particular case.”).
      Second, the Vaizburds argue that “[f]aced with two dramatically  different  appraisal  reports,
neither of which the court was obliged to accept, the court should have determined the  valuation  of
the easement itself.”  (Br. of Appellant at 24.)  Again, the Vaizburds provide  no  support  for  the
proposition that a court may not adopt one party’s credible appraisal over  the  other  party’s  less
credible appraisal.  The cases upon which the Vaizburds rely  are  inapposite  because  they  involve
circumstances where a court did not find either appraisal credible.  See, e.g., Yankton  Sioux  Tribe
v. United States, 623 F.2d 159 (Ct. Cl. 1980).  Here, the Court of Federal Claims  did  not  conclude
that neither valuation was credible.  Rather, the court properly rejected  the  Vaizburds’  appraisal
as unreliable and properly adopted the government’s appraisal as credible.  The court  was  under  no
obligation to appoint an independent expert to remedy the  Vaizburds’  deficiencies  of  proof.   The
Vaizburds’ pro se status did not exempt them from the usual evidentiary obligations.
      Finally, the Vaizburds argue that the government’s “appraisal does not determine the  value  of
the subject property before and after the taking  of  the  easement  for  deposit  of  sand.  .  .  .
[I]nstead [it] simply attempts to measure the infinitesimal  change  in  the  value  of  the  subject
property over a period of approximately 30 days.”  (Reply Br. of Appellant at  10.)    The  Vaizburds
are correct that the government appraiser measured the decrease in  market  value  over  a  one-month
period beginning December 1995 and ending January 1996.  Their argument – that the  appraisal  should
have calculated the property’s market value before the sand accretion initially began and  after  the
taking was complete – may have some merit.  However, this argument is raised for the  first  time  on
appeal, and then only in their reply brief.  Indeed, the  Vaizburds’  own  appraisal  used  the  same
methodology, calculating the before-value as of the beginning of September 1995 and  the  after-value
as of the beginning of October 1995.[6]  The Vaizburds  waived  any  objection  to  the  government’s
appraisal methodology in this respect.
      Therefore, we hold that the Court of Federal Claims’ conclusion that the sand accretion did not
diminish the market value of the Vaizburds’ property is not clearly erroneous.[7]
                                                  B
      The Vaizburds alternatively contend that they should be awarded compensation on a cost of  cure
theory of recovery, namely that they should be compensated for the  cost  of  removing  the  accreted
sand from their property.[8]  The Court of Claims’ ground for rejecting cost of cure as a measure  of
compensation is unclear.  The court stated that it did “not have sufficient evidence  from  which  to
fashion a remedy from the costs related to sand removal,” but it then went on to  say  that  “[c]osts
to cure . . . would not be independent elements of compensation.”  Vaizburd, 57 Fed. Cl. at 233  n.9.
 The Court of Federal Claims’ opinion is open to two separate interpretations.  On the one hand,  the
court may have intended to hold that it had considered the evidence submitted as to cost of cure  and
reached the factual conclusion that it did “not  have  sufficient  evidence  from  which  to  fashion
remedy,” i.e., that the Vaizburds had not  presented  sufficient  evidence  to  establish  that  they
reasonably incurred costs to remove the accreted sand.  Alternatively, the opinion  may  be  read  as
holding that cost of cure is an inappropriate independent  measure  of  valuation  and  may  only  be
considered for its “effect upon fair market value” of the property itself.  If the Court  of  Federal
Claims refused to consider cost of cure as a viable measure of compensation  for  the  taking  of  an
easement because there was no effect on market value, then the court erred.
      Our recent decision in Ridge Line reaffirmed that the  cost  of  cure  can  be  an  appropriate
measure of compensation.  The Court of Federal Claims in Ridge Line held that even if  the  plaintiff
had established that periodic water invasions of its property were temporary takings, they  were  not
compensable because the plaintiff could not  show  that  these  intrusions  diminished  its  property
value.  Ridge Line, 346 F.3d at 1352.  On appeal, we rejected this approach.   Id.  at  1354-55.   We
explained that once  a  plaintiff  has  established  that  a  taking  occurred,  it  is  entitled  to
compensation for its costs in preventing the  damage  caused  by  government  actions,  holding  that
“damages may be assessed based on [the  landowner’s]  cost  in  constructing  prudent  flood  control
measures.”  Id. at 1359; see also Eyherabide, 345 F.2d at 570-71 (allowing “compensation for  .  .  .
the loss of improvements and the cost of placing the property in its pre-taking condition . . .  [and
for] clearing and restoring the property in the condition for rebuilding”).
      Similarly, the Supreme Court in Dickinson upheld the Fourth Circuit’s damages  decision  “based
on the cost of protective measures which the landowners might have taken to prevent the  loss.”   331
U.S. at 747.  The plaintiff in Dickinson sued under the Tucker Act  to  recover  compensation  for  a
taking of their land resulting from government-induced flooding that caused erosion  of  their  land.
Id.  The Fourth Circuit held that the government’s dam construction, which raised the  level  of  the
river and led to flooding and erosion of the plaintiff’s  property,  “amount[ed]  to  the  taking  of
easements for which compensation was due.”  United States v. Dickinson, 152 F.2d 865, 871  (4th  Cir.
1946).  The Fourth Circuit approved the district court’s award  of  “reasonable  cost[s]  .  .  .  of
protective work adequate to prevent the damage by erosion if installed prior to the  raising  of  the
level of the river,” which it concluded “would have been sound economy, in view of the character  and
nature of the property, to have made the expenditure.”  Id. at  870.   The  Supreme  Court’s  opinion
approved this approach to valuation by affirming the award “based on the cost of protective  measures
which the landowners might have taken to prevent the loss.”  331 U.S. at 747.
      Thus, the cost of cure can be an appropriate measure of compensation.  In rewarding the cost of
cure, of course, expenditures are only compensable if they are “reasonable.”   See  Ridge  Line,  346
F.3d at 1359.   In other words, the Vaizburds must establish that it “would have been sound  economy,
in view of the character and nature of the property,  to  have  made  the  expenditure[s]”  for  sand
removal.  Dickinson, 152 F.2d at 870.
      Although there was testimony that the Vaizburds incurred sand removal costs,[9] and the  record
includes some estimates of the cost of further sand removal,[10] the Vaizburds have  not  pointed  to
any evidence of the specific amounts paid for such sand removal.  On remand,  the  Court  of  Federal
Claims should decide whether evidence in the existing record supports an award of compensation  on  a
cost of cure theory.  We reach no conclusion as to the sufficiency of the evidence in  the  Court  of
Federal Claims record.  This issue should be addressed in the Court of Federal Claims  in  the  first
instance.
                                              CONCLUSION
      For the foregoing reasons, we vacate the Court of  Federal  Claims’  decision  and  remand  for
further proceedings in accordance with this opinion.
                                         VACATED AND REMANDED
                                                COSTS
      No costs.
                        United States Court of Appeals for the Federal Circuit



                                               03-5154

                                 LINDA VAIZBURD and ARKADY VAIZBURD,

                                             Plaintiffs-Appellants,

                                                  v.

                                            UNITED STATES,

                                             Defendant-Appellee.


FRIEDMAN, Senior Circuit Judge, dissenting in part.
      I agree with and join the Background section and Parts I  and  II.A  of  the  court’s  opinion,
which uphold the Court of Federal Claims’ “conclusion that the sand accretion did  not  diminish  the
market value of the Vaizburds’ property [as] not clearly erroneous.”  See Vaizburd v. United  States,
57 Fed. Cl. 221, 233 (2003).  I disagree, however, with the ruling in  Part  II.B  that  remands  the
case to that court to determine whether the Vaizburds can recover  just  compensation  based  on  the
cost of removing the sand from lot 3.  I would affirm the judgment of the Court of Federal Claims  in
its entirety.
      As far as I can tell, the Vaizburds never sought recovery  on  that  theory  in  the  Court  of
Federal Claims.  During the lengthy and extensive proceedings in that  court,  their  sole  claim  to
recovery was based on the alleged lower value of their property after  the taking  of  the  easement.
Based on the sale price of other properties in Brooklyn, which they  asserted  were,  but  the  trial
court held were not, comparable to their property,  they  contended  that  before  the  taking  their
property was worth more than $ 16 million, but that after the taking its value  was  reduced  to  the
low $300,000’s.  See 57 Fed. Cl. at 231-33.
      In neither their pre-trial Memorandum of Contentions of Fact and Law nor their  sixty-one  page
Motion for Reconsideration and Relief from Judgment (filed after  the  trial  court  had  issued  its
opinion) did the Vaizburds even suggest, let alone argue, that the just compensation could  be  based
on the alternative theory that they were entitled at least to the cost  of  removing  the  sand  from
their lot.  They did not even contend that the removal cost could be an element  in  the  before-and-
after value method.  In their briefs  to  this  court,  the  Vaizburds  cite  only  the  government’s
appraisal report for record evidence concerning the cost of previous efforts to remove sand from  the
subject properties.  See Reply Br. at 2 (citing JA 1408, 1428-30).
      The Court of Federal Claims’ sole discussion of the cost of removing sand  in  its  twenty-page
opinion was the following footnote:
           We do not have sufficient evidence from which to fashion a remedy from the costs  related
           to sand removal:  “[C]osts to cure and other elements resultant from the taking are  only
           admissible on the issue of just compensation if they are tied to their effect  upon  fair
           market value.”  Nichols on Eminent Domain, 4A § 14.A.04[2][a].  Normally they  would  not
           be independent elements of compensation, in other words, unless it can be shown that  the
           reduced after value assumes some continuing mitigation cost.

57 Fed. Cl. at 233 n.9.
      Since the Vaizburds never sought recovery on this theory in the Court of Federal  Claims,  that
court’s statements on the point are dicta.  The court’s remand seemingly is designed to correct  what
it views as a possible legal error by the trial court in “refus[ing] to consider cost of  cure  as  a
viable measure of compensation for the taking of an easement because there was no  effect  on  market
value.”  Whatever may be the merits of that issue, in the circumstances here I see no reason for  the
remand the court orders for the trial court to reconsider that theory of recovery.
      To be sure, the Vaizburds represented  themselves  in  the  Court  of  Federal  Claims.   This,
however, is not the typical pro se case in which a  court  condones  a  litigant’s  failure  to  meet
certain procedural or technical requirements.  As the Court of Federal Claims explained:
           Despite lack of counsel, plaintiffs’ legal argument  and  presentation  did  not  suffer.
           They understood the relevant principles and Arkady Vaizburd, who  handled  the  courtroom
           presentation, was very skilled at presenting evidence and making relevant objections.


57 Fed. Cl. at 222 n.1.
      The Vaizburds’ failure to raise the cost-of-removal issue before the Court  of  Federal  Claims
was not a forgiveable oversight or inadvertence but appears to have  been  a  deliberate  choice.   I
would hold them to that choice, and not give them a further opportunity to correct what they may  now
view as a mistaken strategy in the trial court.


-----------------------
      [1]   The Vaizburds accepted the government’s  initial  after-value  calculation  of  $320,000.
During the course of the trial, the Court of Federal Claims chose a date  of  taking  different  than
the government appraiser’s date.  On the instruction of  the  court,  the  government  appraiser  re-
calculated the before- and after-values to comport with the  court’s  choice  of  the  takings  date,
resulting in both a before- and an after-value of $315,000, as noted in the  text.   On  appeal,  the
Vaizburds challenge the government’s before-value, but do not contest the  after-value,  the  revised
and lower after-value being slightly more favorable to their claim.


      [2]   The government appraiser considered four comparable  sales  from  February  1992-December
1995, including at least two homes on Oceanview Avenue with “water up  to  the  bulkhead,”  namely  a
submerged back lot.
      [3]   See also United States v. Kan. City Life Ins.  Co.,  339  U.S.  799  (1950)  (landowner’s
property flooded due to the government’s act of raising  the  level  of  a  stream  for  navigational
purposes); United States v. Dickinson, 331 U.S. 745  (1947)  (landowner’s  property  flooded  due  to
government’s act  of  raising  level  of  river);  United  States  v.  Cress,  243  U.S.  316  (1917)
(landowner’s property flooded by overflow caused by  government’s  dam  project);  United  States  v.
Welch, 217 U.S. 333 (1910) (landowner’s property flooded due to government’s dam); United  States  v.
Lynah, 188 U.S. 445 (1903) (landowner’s property flooded due to government’s  construction  of  dam);
Pumpelly, 80 U.S. (13 Wall.) at 166 (landowner’s property flooded due to government  construction  of
a dam); see also Ridge Line, Inc. v. United States, 346 F.3d  1346  (Fed.  Cir.  2003)  (flooding  of
landowner’s property caused by government construction project that  increased  storm  drainage  onto
the land); Barnes v. United States, 538 F.2d 865 (Ct. Cl. 1976)  (flooding  of  landowner’s  property
caused by government’s dam constructions); Eyherabide v. United States, 345 F.2d 565,  566  (Ct.  Cl.
1965) (invasion of landowner’s property by Navy’s dropping of fuel tanks and shooting of  shells  and
rockets onto the property); Fonalledas v. United States, 107 F.  Supp.  1019,  1022  (Ct.  Cl.  1952)
(some of landowner’s property was “buried under mud and silt, [while] others were flooded  with  salt
water and permeated with salt” due to government’s canal construction); Coates v. United  States,  93
F. Supp. 637, 637 (Ct. Cl. 1950) (“heavy layer of sand” deposited on landowner’s property  as  result
of government project to improve navigability of river); Cotton Land Co.  v.  United  States,  75  F.
Supp. 232 (Ct. Cl. 1948) (flooding of landowner’s property due to government’s dam construction).
      [4]   See, e.g., Sanguinetti v. United States, 264 U.S. 146, 150 (1924); Nat’l  By-Products  v.
United States, 405 F.2d 1256, 1275 (Ct. Cl. 1969); Columbia Basin Orchard v. United  States,  132  F.
Supp. 707, 709 (Ct. Cl. 1955).
      [5]   To the extent that the Vaizburds challenge the credibility of the government’s  appraisal
on the theory that the government appraiser considered sales of  houses  that  were  not  comparable,
this argument is without merit.  As noted previously, the government appraiser chose other houses  on
Oceanview Avenue.


      [6]   In fact, the Vaizburds conceded at oral argument that they had not submitted evidence  of
the market value before the beginning of sand accretion:


      APPELLANTS’ COUNSEL: What the [market value] test really describes is not the time  before  and
      after the taking.  What you would value, what the appraiser should value in such a case, is the
      value of the fee simple with no easement in the before and the value of the  fee  simple  minus
      the easement in the after, and that wasn’t done here . . .


      COURT: But the problem is that your client didn’t present any such evidence.


      APPELLANTS’ COUNSEL:  Well, that is a problem, certainly . . . .

      [7]   In this connection, the Court of Federal Claims did not err in rejecting  testimony  that
the sand accretion rendered the Vaizburds’ home “uninhabitable.”  Vaizburd, 57 Fed. Cl. at 225.   The
court held that to the extent that the  home  was  uninhabitable,  it  was  a  “result  of  temporary
blockage of a [sewer] system which was already problematic for reasons unrelated  to  the  additional
sand.”  Id. at 226.


      [8]   The dissent argues that we should reject the cost of cure theory on the  ground  that  it
was not raised below.  Four circumstances taken together convince us otherwise.  (1) Cost of cure  is
not a separate claim but merely a separate theory for computing  the  amount  of  takings  liability.
See Ridge Line, 346 F.3d at 1358-59.  (2) The Vaizburds were proceeding pro se, and  their  pleadings
should accordingly not be held to the same standard as parties represented by  counsel.   Forshey  v.
Principi, 284 F.3d 1335, 1357 (Fed. Cir. 2002) (en banc) (“[W]here a party  appeared  pro  se  before
the lower court, a court of appeals may appropriately be less stringent in requiring that  the  issue
have been raised explicitly below.”).  (3) The Ridge Line case upon  which  the  Vaizburds  primarily
rely was not decided until after the Court of Federal Claims’ decision.  See id. at  1356.   (4)  The
Court of Federal Claims addressed the cost of cure theory on the merits in its opinion.
      As noted below, however, the Vaizburds must rest on the existing factual  record  in  asserting
this theory of recovery.
      [9]   The Court of Federal Claims found that the Vaizburds “have paid to have sand  removed  at
least once from their back yard. . . . [Another Sea Gate resident] testified that he pays every  year
to have sand removed to maintain the level well below his bulkhead. . .  .  Apparently  some  of  the
other owners along Oceanview Avenue have also paid to have sand removed on occasion.”  See  Vaizburd,
57 Fed. Cl. at 226.  The government appraiser similarly concluded that  “it  has  been  necessary  to
have a large amount of sand removed annually, at considerable expense.”  (J.A. 1408.)


      [10]  See (J.A. at 1408 (“The owner of the subject sent us copies of estimates for  removal  of
sand from the rear yard of the subject, in addition to an estimate for  repairs  for  damage  to  the
house from the sand, as well as an estimate to install a see-through  fence  along  the  top  of  the
bulkhead. . . .  The total of the cost estimates was $37,059”).) (June 24, 1998 Appraisal by  Negalia
Appraisals, Inc.).

