B.W. Parkway Associates Limited Partnership v. United States

29 Fed. Cl. 669, 1993 U.S. Claims LEXIS 177, 1993 WL 422033
CourtUnited States Court of Federal Claims
DecidedOctober 15, 1993
DocketNo. 539-89L
StatusPublished
Cited by7 cases

This text of 29 Fed. Cl. 669 (B.W. Parkway Associates Limited Partnership v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B.W. Parkway Associates Limited Partnership v. United States, 29 Fed. Cl. 669, 1993 U.S. Claims LEXIS 177, 1993 WL 422033 (uscfc 1993).

Opinion

OPINION

MARGOLIS, Judge.

This takings case is before the court for final judgment after a four-day trial. The plaintiff, B.W. Parkway Associates (“BWPA”), is a partnership that owned property adjoining the National Security Agency (“NSA”), a United States Depart[671]*671ment of Defense installation. The plaintiff alleges that the defendant, the United States, acting through NSA effected a Fifth Amendment taking by preventing BWPA from developing its property. The defendant argues that the plaintiff failed to develop the property either because of its own failures or because of obstacles to development. After reviewing the entire record, this court holds that the plaintiff has not met its burden of proof. Accordingly, the court directs entry of judgment for the defendant.

FACTS

I. Background

During the early 1960s, Melvin J. Ber-man (“Berman”), a real estate developer, purchased several tracts of contiguous land located at the intersection of two highways, Maryland Route 32 (also known as Savage Road) and the Baltimore-Washington Parkway (“BW Parkway”). These tracts, which totalled almost 260 acres, came to be known collectively as “the Berman tract” or “Colony Fairfield.” 1 The Berman tract was bordered on the west by the BW Parkway, on the south by Route 32, on the east by Fort George G. Meade, a Department of Defense facility, and on the north by privately owned vacant land. The attached map from plaintiff's trial exhibit (P’s ex.) 89 shows the property’s location and road network. Together with his partner, Jack Pollin, Berman formed BW Parkway Associates, a limited partnership, to develop the property. BWPA planned a mixed-use development, including commercial office buildings, retail establishments, high-rise apartments and single family homes.2 Throughout the period at issue, though, the only tenants of the property were a motel, gas station and doughnut shop, and the remainder of the property was vacant.

The land is located in Anne Arundel County, Maryland. The Anne Arundel County government zoned it for a combination of commercial and residential uses. Approximately 203 acres were zoned for residential uses. Up to 53 acres were zoned for high-density commercial uses. BWPA’s development plans called for approximately 3000 residential units, 750,-000 — 1,000,000 square feet of office space, 150,000 — 200,000 square feet of other commercial uses and a 250-500 room hotel.

Dennis Berman testified that BWPA regarded the location of the property as extremely important. The property lay between three population centers: Baltimore, Maryland; Washington, D.C.; and Annapolis, Maryland, roughly equidistant from Baltimore and Washington. Moreover, two major highways, Route 32 and the Baltimore Washington Parkway, intersected at the property, and two other major highways U.S. Route 29 and Interstate 95, ran nearby. The record reflects that real estate development between Baltimore and Washington was “booming” during the period at issue.

Berman was particularly interested in the property because of its proximity to a large federal agency. The National Security Agency, a U.S. Department of Defense facility and tenant of Fort George G. Meade, adjoined the property to the east. NSA employed tens of thousands of persons from 1967-1987. According to Dennis Berman, having NSA next door was like “having a city next door. And this city needs services. All those people need a place to live, ... a place to shop.” Trial Transcript (Tr.) at 43. BWPA considered the tract “the number one property in the [Baltimore-Washington] corridor.” Id.

NSA officials regarded a large-scale development on the property as a threat to NSA’s mission. NSA collects foreign intelligence for the United States. Its operations are secret, and a foreign government “would absolutely gain from knowledge of what was going on inside the facility.” Tr. at 699. Officials feared that the development of certain types of buildings so close [672]*672to the NSA would compromise national security by facilitating surveillance of NSA’s operations.

BWPA never developed the property. In 1987, NSA condemned the property and paid BWPA more than $21 million. That award did not compensate BWPA for the value that development could have brought prior to the taking. BWPA alleges that, from 1968 to 1987, the NSA actively prevented it from developing the property in order to maintain a security buffer zone. According to BWPA, NSA benefited from keeping the property underdeveloped without compensating BWPA. NSA does not dispute that it opposed the development, but contends that it did nothing improper. NSA argues that typical obstacles to development, such as inadequate highway access and infrastructure, impeded BWPA’s plans for the property.

The issue before this court is whether the government’s conduct during the period 1968-1987 constituted a taking of property without compensation. The parties dispute several factual issues: the extent to which BWPA tried to develop the property; the feasibility of installing water and sewer systems on the property; and the nature of the government’s opposition to development of the property. The court finds the following facts.

II. BWPA’s Efforts to Develop the Property

BWPA attempted to develop the property from 1967 to 1987. Developing unimproved land is a long, complex process. Several county agencies must approve aspects of a project, including water and sewer access, storm drains, roads, wetlands, flood plains, and zoning, before construction can begin. All such approvals must be current simultaneously for a developer to start work legally1? It can take a developer several years to obtain approvals for a large-scale project.

BWPA planned the development and attempted to ascertain the feasibility of water and sewer systems over a period of years. Starting in 1967, BWPA hired engineering consulting firms to consider methods of providing water and sewer service, improving highway access to the property, and preparing subdivision plats. These efforts continued in the 1970s. BWPA also began acquiring approvals from various local government offices.3 BWPA won sketch plan approval in December 1971, but did not prepare a preliminary plan. Thus, the sketch plan approval lapsed. Prom 1972 through 1974, BWPA worked with county officials to gain approval to install an interim sewage treatment plant on the property. The county granted approval in October 1974. Thereafter, BWPA sought estimates for site development to build an apartment building, an office building, and a water supply and waste disposal system. In 1975, BWPA hired an architect to design the buildings. From 1968 to 1975, BWPA officials negotiated with government officials to sell various interests in the property or exchange it for government-owned land.

In 1979, BWPA negotiated with at least one developer to form a joint venture to begin construction. By early 1979, BWPA again submitted a sketch plan proposal, and in August 1980, BWPA again gained sketch plan approval. BWPA officials actively monitored the state highway planning process and provided input.

BWPA came closest to beginning construction when it applied for and, in May of 1986, received a building permit from Anne Arundel County. In 1986, BWPA planned [673]

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Bluebook (online)
29 Fed. Cl. 669, 1993 U.S. Claims LEXIS 177, 1993 WL 422033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bw-parkway-associates-limited-partnership-v-united-states-uscfc-1993.