Vaizburd v. United States

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.).