7 Mistakes A Land Use Expert Witness Must Avoid

Friday, May 25, 2018 9:56 am
June 2018 - Volume 46 Number 6

An expert witness failed to prove regulatory or physical taking when the government attempted to restore landowner’s property to wetlands.

Facts: Plaintiff Brace, owner of 600 acres in Erie County, Pennsylvania, filed an action in the United States Court of Federal Claims claiming a regulatory taking of his property in violation of the Fifth Amendment to the Constitution. A portion of his property was considered to be wetlands under the Clean Water Act (CWA), and the Third Circuit Court of Appeals held that this property did not meet the regulatory exemption requirement that it be used for “normal farming activities.”

Analysis: Of particular interest in the court’s decision is its evaluation of the parties’ expert witnesses --- a how-to of what not to do if you want your expert to persuade a judge.

The court faulted Plaintiff’s expert witness because:

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