THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Columbia Venture, LLC, Appellant, 

v. 

Richland County, Respondent.
 

Appellate Case No. 2013-001067 

Appeal from Richland County 

John Hamilton Smith, Sr., Special Referee 

Opinion No. 27563 

Heard November 18, 2014 – Filed August 12, 2015 

AFFIRMED 

Manton M. Grier, James Y. Becker, and Elizabeth 

Halligan Black, all of Haynsworth Sinkler Boyd, PA, of 

Columbia, for Appellant. 

M. McMullen Taylor, of Mullen Taylor, LLC, of 

Columbia, Pope D. Johnson, III, of Johnson & Barnette, 

LLP, of Columbia, and John D. Echeverria, of South 

Royalton, Vermont, for Respondent. 

John S. Nichols, of Bluestein Nichols Thompson and 

Delgado, of Columbia, for Amicus Curiae, The 

Association of State Floodplain Managers, Inc.; Robert 

E. Lyon, Jr., John K. DeLoache, Alexander White Smith 

and James Ferguson Knox, all of Columbia, for Amicus 

Curiae, South Carolina Association of Counties. 
 

JUSTICE KITTREDGE: Appellant Columbia Venture, LLC, purchased 4,461 

acres of land along the eastern bank of the Congaree River in Richland County, 

intending to develop the property. Columbia Venture knew at the time of the 

purchase that the Federal Emergency Management Agency (FEMA) was in the 

process of revising the area flood maps and designating most of the property as 

lying within a regulatory floodway. See 42 U.S.C. § 4101(e)–(f) (requiring FEMA 

to assess the need to revise flood maps every five years). Pursuant to federal law, 

development is generally not permitted in a regulatory floodway. When Columbia 

Venture's efforts to remove the floodway designation were unsuccessful, Columbia 

Venture sued Richland County, alleging an unconstitutional taking. By consent, 

the case was referred to a special referee, who after numerous hearings and a multiweek trial dismissed the case and entered judgment for Richland County. We 

affirm. 

I. 

To reduce the losses caused by flood damage, to create a unified national program 

for floodplain management, and to increase the availability of affordable flood 

insurance, Congress enacted the National Flood Insurance Act of 1968, through 

which it established the National Flood Insurance Program (NFIP). 42 U.S.C. 

§§ 4001–4131. Under the NFIP, state and local governments must "make 

appropriate land use adjustments to constrict the development of land which is 

exposed to flood damage and minimize damage caused by flood losses," and 

"guide the development of proposed future construction, where practicable, away 

from locations which are threatened by flood hazards." Id. § 4001(e). Although 

local communities are not required to participate in the NFIP, no purchaser or 

owner of property located within a non-participating community is eligible for 

federal lending, flood insurance, or federal disaster relief. See id. §§ 4022(a), 

4106. Richland County has participated in the NFIP since 1981. 

FEMA is the federal agency responsible for implementing the NFIP and for 

making scientific and technical determinations to identify flood hazards for a given 

area. 42 U.S.C. § 4101(e)–(f). The basis for most of FEMA's mapping and 

regulation is the "base flood" or "100-year flood," which has a one percent chance 

of occurring in any particular year.1 44 C.F.R. § 59.1. Based on its scientific 

1

 As a practical matter: 
 

 

studies regarding the elevation of a base flood, FEMA issues a Flood Insurance 

Rate Map ("FIRM" or "flood map"), which identifies and delineates flood hazards 

within a community.2 Id. Communities are required to adopt the FIRMs and to 

restrict development in those flood hazard areas.3 42 U.S.C. § 4102(c); 44 C.F.R. 

§ 60.3. A local community's floodplain land-use controls must meet FEMA's 

minimum requirements, but FEMA encourages communities to impose more 

restrictive regulations. 44 C.F.R. § 60.1(d). In one important aspect, Richland 

County's regulations are more restrictive than the FEMA minimum in that 

Richland County, by ordinance, prohibits construction in a floodway. 

Flood hazard areas are divided into two parts, called the "regulatory floodway" and 

the "flood fringe," which are referred to collectively as the "floodplain." In 

conducting its flood studies, FEMA identifies the area adjacent to a river or stream 

It is important to note that the 100-year storm is not based on any 

actual storm. Instead, a theoretical storm is constructed by using 

mathematical models. A hydraulic computer model is applied to 

generate the width and location of the floodway at each cross-section 

at which the stream is measured. The water surface elevation for the 

design flood is plotted onto a corresponding topographical map 

showing relative ground elevations. Areas in which the plotting 

reveals the flood elevation of the theoretical design flood to be higher 

than the ground elevation are then included within the flood hazard 

area. 

Am. Cyanamid Co. v. State, Dep't of Envtl. Prot., 555 A.2d 684, 688 (N.J. Super. 

Ct. App. Div. 1989) (internal citation omitted). 

2

 Floodplain areas are continuously shaped by the forces of water, and surrounding 

development also alters the floodplain and the dynamics of flooding. Accordingly, 

FEMA must assess the need to revise its flood maps every five years and undertake 

revisions as it sees fit. 42 U.S.C. § 4101(e)–(f). FEMA may also initiate a restudy at any time upon the request of a state or local government if the requesting 

community supplies sufficient technical data justifying the request. Id. 

3

 In addition to local land use restrictions, federal law requires flood insurance in 

special hazard areas. 44 C.F.R. § 59.1. 
 

that is subject to dangerously high flood levels and rushing water during a flood 

and within which the presence of development would increase the danger posed by 

flood conditions. This area, which poses the greatest flood risk, is known as the 

regulatory floodway. 44 C.F.R. § 59.1. The remainder of the floodplain area is the 

flood fringe, which is expected to be under water during a 100-year flood but 

within which floodwaters are expected to be comparatively more shallow and 

slow-moving. Richland County is comprised of 487,600 acres of land, of which 

16,516 acres are designated as regulatory floodways. 

Within a regulatory floodway, FEMA requires that a community must, at a 

minimum: 

[P]rohibit encroachments, including fill, new construction, substantial 

improvements, and other development within the adopted regulatory 

floodway unless it has been demonstrated through hydrologic and 

hydraulic analyses performed in accordance with standard engineering 

practice that the proposed encroachment would not result in any 

increase in flood levels within the community during the occurrence 

of the base flood discharge. 

44 C.F.R. § 60.3(d)(3) (emphasis added). This is commonly referred to as the "norise" standard. 

As noted, Richland County's restrictions on encroachments within a regulatory 

floodway are more restrictive than the FEMA minimum.4 Under the floodway 

4

 Michael Criss, a former Richland County Planning Director, testified Richland 

County's more restrictive land-use standards enable County residents to receive 

discounted flood insurance rates and that these more-restrictive standards are 

forward-looking and thus further public safety because: 

The federal flood maps do not account for the continued urbanization 

and development of the corresponding watersheds and the resulting 

increase in stormwater runoff and potential flooding. . . . The federal 

flood maps are retrospective. They rely on historical flood records 

and don't project the potential of increased flooding in the future from 

urbanization or from the possibility of more intense storms due to 

climate change. 
 

 

 

provision of the County's stormwater management ordinance in place when 

Columbia Venture purchased the property, "no levees, dikes, fill materials, 

structures or obstructions that will impede the free flow of water during times of 

flood will be permitted in the regulatory floodway." Richland County, S.C., Code 

§ 8-62(h) (1994). This prohibition against impeding the free flow of floodwater, or 

the "no-impede" standard, essentially prohibits construction in a floodway.5 By 

contrast, areas outside the regulatory floodway but still within the fringes of the 

floodplain may be developed, so long as new structures are sufficiently elevated 

and flood-proofed. Id. § 26-73.5(2) (1999). Thus, FEMA's determination of 

whether an area of land is within a regulatory floodway (versus within the larger 

floodplain) essentially determines whether development will be permitted.6 

Once FEMA completes its scientific studies and prepares a revised flood map, the 

new maps are issued as preliminary documents for review by the affected 

community and the public. 42 U.S.C. § 4104(a). The revised flood maps do not 

become final until federal statutory notice and administrative appeal periods have 

passed.7

 However, under certain circumstances (that apply in this case), 

communities are directed to use the preliminary revised flood maps for the 

purposes of floodplain regulation. Specifically, federal guidance provides that if a 

preliminary revised flood map widens a floodway or shows higher base flood 

elevations than the current final flood map, then the preliminary revised map 

should be used for regulatory and permitting purposes. 

5

 The following uses are permitted within a regulatory floodway: agricultural and 

horticultural uses, parking areas, accessory and recreational uses (such as lawns, 

gardens, play areas, swimming areas, fishing areas, beaches, boat ramps, parks, 

playgrounds, etc.), airport runways and landing strips, and various infrastructure 

uses (such as streets, bridges, overhead utility lines, storm drainage facilities, sewer 

lines, and waste treatment plants). Richland County, S.C., Code § 26-73.4(3). 

6

 The County's stormwater management ordinance did not contain a variance 

provision. 

7

 A community itself or any private citizen adversely affected by the proposed 

flood-map revisions may initiate an administrative appeal challenging the scientific 

or technical basis for FEMA's determinations. 42 U.S.C. §§ 4104–4104-1. 
 

 

 

 

Aside from successfully appealing the scientific or technical basis for FEMA's 

floodplain designations, a floodplain designation may be removed if a landowner 

constructs a certified levee, thereby allowing the area protected by a certified levee 

to no longer be considered part of the floodway or floodplain. 44 C.F.R. § 65.10. 

For a levee to be certified, it must meet FEMA's design, stability, and orientation 

standards, and a local NFIP community must agree to assume responsibility for 

maintaining the levee. 44 C.F.R. § 65.10(c)–(d). Although FEMA regulations 

require that levees be designed to withstand a 100-year flood, Richland County's 

ordinances are stricter and require that levees must provide protection from a 500­

year flood8

 plus three feet of freeboard. Richland County, S.C., Code § 8-62(g) 

(1994). 

Prior to undertaking any levee upgrades necessary to acquire FEMA certification, 

property owners may submit proposed design and construction plans, along with 

supporting scientific data, for FEMA's review and advance comment as to whether 

such plans are sufficient to obtain levee certification. 44 C.F.R. § 65.5. The 

scientific data required for FEMA to consider a proposed project involves 

extensive hydraulic and hydrologic engineering analysis. Id. § 65.6. After a levee 

construction project is approved and completed, FEMA then revises its flood map 

to reflect the protection provided by the certified levee and removes the floodplain 

designation through a Letter of Map Revision (LOMR). Id. § 65.10 

We turn now to the facts of this case. 

II. 

This case involves 4,461 acres of land along the eastern bank of the Congaree 

River in Richland County. The property is located just a few miles from the City 

of Columbia, near Interstate 77, Heathwood Hall Episcopal School, and the City of 

Columbia's sewer treatment plant. For decades, the property was owned by the late 

Burwell Manning and was used for farming and recreational purposes.9 

8

 A 500-year flood is one that has a 0.2% chance of occurring in any given year. 

9

 The only structures on the property are barns, a grain facility, an unoccupied 

house, and an office building. 
 

In order to protect the property from flooding, in the early 1960s, Manning 

constructed a system of levees extending for over twenty miles along the banks of 

the Congaree River and Gills Creek, which runs through the property. These 

agricultural levees were approximately twenty feet tall by forty-five feet wide and 

were constructed under the supervision of Manning and a registered surveyor using 

an Army Corps of Engineers' levee construction manual and guidance from the 

U.S. Department of Agriculture. At the time the levees were constructed, no 

permitting process or levee design and construction regulations existed. Although 

the immediate purpose of the levees was to protect his crops, Manning ultimately 

envisioned large-scale development on the property, and he knew that sufficient 

levees would be required to protect any future development. 

Following completion of the levees, Manning sold approximately 120 acres to the 

City of Columbia for construction of its sewer treatment plant.10 Thereafter, 

Manning subdivided and donated a parcel of land for the construction of 

Heathwood Hall Episcopal School. In addition to protecting Heathwood Hall, the 

City's sewer plant, and the remainder of Manning's property, the levees also protect 

the nearby land of several other property owners and another wastewater treatment 

plant. 

Over the years, Manning used the property to secure various loans and agricultural 

credit lines, and by June 1997, Manning had defaulted on those loans. To maintain 

possession of his property (and to keep it from being subdivided, which would 

have thwarted his development vision), Manning entered into a complicated series 

of real estate transactions, through which his outstanding agricultural debts were 

paid and he retained an option to repurchase the property no later than February 

1999. After securing the repurchase option in June 1997, Manning and his son 

Deas Manning, began looking for investors to help finance the planned repurchase 

before the option expired. 

10 The City's parcel included a portion of the levees along the Congaree River, and 

the deed included a covenant by the City to maintain the levees. In 1976, the City's 

portion of the levee failed due to a lack of proper maintenance and allowed water 

to flow onto an adjacent 1806-acre parcel still owned by Manning; Manning sued 

the City and recovered damages resulting from the City's failure to adequately 

maintain the levees. See Manning v. City of Columbia, 297 S.C. 451, 452, 377 

S.E.2d 335, 336 (1989) (affirming a jury award of $4,120,000 in favor of 

Manning). 
 

At that time, only the thin strip of land between the river channel and the riverside 

toe of the levees was designated as part of the regulatory floodway and subject to 

the County's extensive development restrictions. Thus, in June 1997, the levees 

themselves could be improved and had the potential to become FEMA-certified, 

thereby allowing the land behind the levees to be developed. 

By the spring of 1998, Tee-To-Green, LLC, expressed interest in developing the 

property into a golf course and entered into a joint venture option agreement with 

Manning. During the contractual due-diligence period, Tee-To-Green ordered site 

plans, conducted environmental assessments and wetlands investigations, and 

commissioned an appraisal, which valued the property at $30 million; however, at 

some point during the due-diligence period, Tee-To-Green discovered FEMA was 

in the process of revising the flood map of Richland County and that the 

preliminary revised map was expected to reconfigure the regulatory floodway to 

include approximately 70% of the property. Ultimately, Tee-To-Green withdrew 

its option to purchase the property, as it was unable to obtain satisfactory 

assurances from the County that the levees could be upgraded in light of the 

imminent floodway designation. Tee-To-Green understood that the floodway 

designation thwarted its intended development and reduced the value of the 

property. 

On June 5, 1998, FEMA released its preliminary revised flood map, and as 

anticipated, the revisions enlarged the Congaree River's regulatory floodway to 

encompass most of the property owned by Manning, the City of Columbia, and 

Heathwood Hall. Although this revised map was not yet finalized, it was the 

effective map for permitting purposes, as it widened the regulatory floodway and 

showed higher base flood elevations than the prior map. 

Since the levees were included within the regulatory floodway under the 

preliminary revised flood map, as of June 5, 1998, whether it was possible to 

obtain a land-disturbance permit to upgrade the levees depended on County's 

interpretation of the "no-impede" standard within its ordinance. Although that 

ordinance has always expressly prohibited any encroachment that would "impede 

the free flow of water," there is some evidence that certain County employees, at 

some point, interpreted that language as being consistent with the less restrictive 

FEMA "no-rise" standard which permits development within a floodway, so long 
 

 

as it is shown not to cause an increase in flood levels. This uncertainty in the 

meaning of the County's 1994 stormwater ordinance no-impede standard is central 

to Columbia Venture's theory of the case.11 

With one potential sale already falling through over the unresolved flood-map 

issues and the expiration of the repurchase option quickly approaching, Manning 

was running out of time to find another investor. In mid-1998, another 

development company, Burroughs & Chapin, expressed interest in purchasing the 

property to construct a large-scale, mixed-use development. Burroughs & Chapin 

is based out of Horry County; it had never taken on a project of this large a scale 

outside Horry and Georgetown counties or any project involving levee systems or 

FEMA regulations. Burroughs & Chapin recognized that there was a "small 

window of opportunity to get this large amount of acreage, strategically located, in 

one parcel for development purposes [at] the right price." As early as May 1998, 

internal documents of Burroughs & Chapin reflect it was well-aware that the bulk 

of the property was designated as a regulatory floodway and that construction is 

not permitted in a floodway. Nevertheless, Burroughs & Chapin continued to 

pursue the possibility of purchasing the property, and on November 13, 1998, 

Burroughs & Chapin entered into a Purchase Agreement with Manning. 

Before the sale was finalized, Burroughs & Chapin retained the Lockwood Greene 

engineering firm to assist it in exploring the FEMA floodway issues. Prior to 

closing, Lockwood Greene issued a cursory report purporting to summarize "the 

FEMA and floodway issues" and estimating a cost and completion date range for 

the potential levee construction. The report acknowledged the 1998 preliminary 

flood map designating most of the property as a floodway but stated "the 

acceptance of these maps as final is currently on hold by FEMA," and that the 

property's floodplain classification could be removed altogether through upgrading 

and obtaining FEMA certification of the levees.12 The report also stated that the 

"floodway elevation is currently being re-done by FEMA," and that "[t]he results 

11 Columbia Venture did not seek an opinion from counsel concerning the proper 

interpretation or the impact of the stormwater ordinance on its proposed 

development prior to purchasing the property. 

12 This statement that the finalization of the 1998 map had been "put on hold" 

erroneously implied that that preliminary map was not the operative map for 

permitting purposes. 
 

of this are not known as of yet." This preliminary engineering report did not 

include any of the required scientific flood modeling or analysis and did not 

address the relevant levee design and construction requirements. Further, this 

cursory evaluation did not take into account Richland County's more stringent 

development restrictions or the cost implications of those enhanced requirements. 

At trial, Columbia Venture's engineer admitted that at the time of this preliminary 

report, "we didn't quite understand the full [FEMA] certification process."13 

Seeking assurance that its development plans would come to fruition, Lockwood 

Greene, on behalf of Burroughs & Chapin, provided a summary of the intentions to 

upgrade the levees and sought assurance from FEMA that it would agree to certify 

the levees following construction and from Richland County that it would assume 

responsibility for levee maintenance following FEMA certification. 

FEMA responded with a letter stating the following: 

If the aforementioned levee is upgraded to meet in total the applicable 

provisions of 44 C.F.R., Part 65.10, and the construction necessary for 

it to meet said requirement[s] is in compliance with State and local 

floodplain management requirements, then FEMA would revise the 

applicable FIRM to remove the Special Flood Hazard Area 

designation and floodway. As you are aware, should the structural 

modifications necessary to bring the levee into compliance with 44 

C.F.R., Part 65.10 result in any increase in base flood elevations as a 

result of construction within the existing regulatory floodway of the 

Congaree River, the requirements of 44 C.F.R., Part 65.12 would also 

have to be met. In addition, any change in the configuration of the 

floodway as a result of the levee modifications will have to be done 

with the approval of the impacted communities. 

Meanwhile, Lockwood Greene had also requested that Richland County agree to 

assume responsibility for the levees if FEMA agreed to certify them following 

construction. However, because this request was presented to County Council 

13 The engineer also acknowledged that "we all didn't completely understand what 

the scope of the work was at that time," in order to challenge the scientific and 

technical basis of FEMA's floodway designations. At the time of purchase, 

Columbia Venture was not prepared to submit the extensive engineering analysis 

required to obtain a LOMR from FEMA. 
 

approximately two weeks before the scheduled closing date, the County was 

concerned that it did not have sufficient time to explore fully the financial and 

safety aspects of the proposed levee construction. As a result, County Council 

adopted the following contingent resolution regarding the levees: 

[T]o accept responsibility for local inspection and enforcement of the 

levee system, and if required by FEMA, to accept operation and 

maintenance responsibility for the system contingent upon the 

following: 

1) The property owners upgrade the levees to meet FEMA 

standards; 

2) [T]he property owners prepare all required documentation 

including operation and maintenance plans; 

3) [C]ertification that the levee system, as upgraded meets FEMA 

standards; 

4) The parties, including Richland County, the City of Columbia 

and the developers, resolve the issues of the performance and 

funding of the operation and maintenance responsibility; 

5) The county's acceptance of responsibility terminates if the 

developers of the area do not invest at least $30,000,000 within 

ten years of the date of the adoption of this motion. 

(emphasis added). 

Additionally, Burroughs & Chapin solicited a "Non-Binding Memorandum of 

Understanding" from the County Administrator, which stated, "[t]he County is 

aware of and agrees to work with the development group on issues that are critical 

to the proposed development such as zoning, tax incentive vehicles and a multicounty business park." The bottom of the memo reiterated, "This agreement is 

intended to be non-binding on the parties." This memorandum of understanding 

did not provide the outright assurances relating to government assumption of 

ongoing levee maintenance as required by 44 C.F.R. § 65.10. 
Nevertheless, the board of directors of Burroughs & Chapin thereafter resolved to 

move forward with the purchase of the property based on its belief that "an 

agreement can be negotiated with Richland County to assume the maintenance of 

the dike system." (emphasis added). Indeed, the board of directors was well aware 

that the County's Resolution expressly involved multiple contingencies, and at 

trial, Columbia Venture conceded that the Resolution did not bind Richland 

County to accept maintenance of the levees. 

Notably, in the days and weeks leading up to the sale, Burroughs & Chapin was 

having difficulty retaining investors in the joint venture to help fund the agreedupon purchase price of $18 million. As the closing date neared, Burroughs & 

Chapin had acquired firm cash commitments of only $11 million. To cover the 

shortfall, Burroughs & Chapin negotiated with Manning to accept the $11 million 

and take the balance of the purchase price as shares in the joint venture. On 

February 17, 1999, Appellant Columbia Venture, LLC, was formed with its initial 

members including Burroughs & Chapin (contributing $9 million and serving as 

the managing member), Lockwood Greene (contributing $2 million in in-kind 

engineering services), and Manning's Green Diamond, LLC (receiving $6,650,000 

in membership shares in Columbia Venture, which were to be redeemed within 

fourteen months). 

Despite the unresolved status of the various FEMA flood map issues, on February 

19, 1999, Columbia Venture proceeded with the transaction and purchased the 

property for a price of $18 million. Based on a then-recent appraisal, Columbia 

Venture believed that if its development plan proved unworkable, the property 

could still be sold for around $30 million. 

As of the date of purchase, Columbia Venture knew FEMA's preliminary flood 

map designated almost all of the property as lying within the regulatory floodway, 

that the County's stormwater ordinance could be interpreted to preclude 

improvement of the levees and subsequent commercial development, and that the 

possibility of FEMA approving and certifying upgraded levees was contingent 

upon a host of factors which Columbia Venture had not fully explored and over 

which Columbia Venture did not exercise ultimate control. 

Shortly after closing, Columbia Venture announced its plans for a $1 billion 

development on the property, which it called Green Diamond. The initial Green 

Diamond plans included residential uses, golf courses, an outlet mall, restaurants, 

hotels, offices, retail businesses, a research and development park, a retirement 
 

 

village, a theme park, and a wildlife expo, all to be constructed within the 

Congaree River floodplain. This development plan was contingent upon Columbia 

Venture receiving $864 million in multi-county business park public financing 

incentives and $80 million in infrastructure costs to be financed through special 

revenue bonds issued by the County. Columbia Venture had not obtained any 

assurances as to these plans and was aware of the concerns raised by its requests of 

Richland County and the City of Columbia.14 

On February 20, 2002, FEMA's revised floodway determinations, placing 3,130 

acres of Columbia Venture's property within a regulatory floodway, became final 

by operation of law.15 Columbia Venture appealed FEMA's findings in federal 

court but, ultimately, was unsuccessful.16 Columbia Venture claims that the date 

of the alleged taking was February 20, 2002. Thus, it was FEMA's floodway 

determination that Columbia Venture claims constitutes the alleged taking—not 

any action by Richland County. 

In August 2004, Columbia Venture filed suit, claiming the County's actions 

constituted an unconstitutional taking and a substantive due process violation. 

Following a lengthy stay pending the resolution of Columbia Venture's appeal of 

14 Moreover, in addition to government concerns, public opposition to the project 

began to mount, and a citizen group called the Congaree Task Force opposed the 

project. 

15 The remaining 1,135 acres of Columbia Venture's property were outside of the 

floodway. 

16 In its federal appeal, Columbia Venture disputed the scientific and technical 

basis for FEMA's September 2000 base flood elevation determinations, which 

caused most of Columbia Venture's land to be designated as lying within the 

regulatory floodway. Columbia Venture LLC v. S.C. Wildlife Fed'n, 562 F.3d 290, 

294 (4th Cir. 2009). The federal district court vacated FEMA's determinations 

based on FEMA's failure to strictly comply with the timing of required notice 

publications. Id. FEMA appealed, and the Fourth Circuit reversed the district 

court and reinstated FEMA's base flood determinations, finding FEMA's 

noncompliance was harmless and Columbia Venture was not prejudiced by 

FEMA's failure to publish notifications, as Columbia Venture was deeply involved 

in the administrative process from the beginning. Id. at 294–95. 
 

 

 

the federal court action, this action resumed in December 2010, and was referred to 

retired circuit court judge John Hamilton Smith as Special Referee. In various pretrial rulings, the Special Referee granted summary judgment in favor of the County 

as to Columbia Venture's per se taking claim and substantive due process claim, 

but denied summary judgment on Columbia Venture's regulatory taking claim. 

Thereafter, Columbia Venture's regulatory taking claim was tried before the 

Special Referee, sitting without a jury. Following the multi-week trial, the Special 

Referee found that Richland County's actions did not constitute a taking.17 

Specifically, in terms of the Penn Central18 factors, the Special Referee found the 

designation of Columbia Venture's property as a regulatory floodway (by FEMA, 

not Richland County) caused a significant decrease in the property's value; 

however, the Special Referee concluded that factor was outweighed by the fact that 

Columbia Venture's investment-backed expectations were not reasonable in light 

of the inherent risk in floodplain development. Moreover, the Special Referee 

found the County's pre-existing floodplain regulations and floodplain management 

regulations served an important purpose of flood protection. The Special Referee 

concluded that, on balance, the Penn Central factors preponderated against a 

taking and therefore that the County could not be responsible for any diminution in 

the property's value. This appeal followed. 

III. 

Having set forth in detail the factual background and procedural history associated 

with Columbia Venture's purchase of the property and many efforts to remove the 

floodway designation, we address the merits of this appeal. Like the able Special 

Referee, we find Richland County's adoption of floodway development restrictions 

and the County's required utilization of FEMA flood data do not constitute a taking 

of any sort. 

"The question of a taking is one of law." Ex Parte Brown, 393 S.C. 214, 224, 711 

S.E.2d 899, 904 (2011). However, "[w]hether a taking that is compensable under 

the Fifth Amendment has occurred is a question of law that is based on factual 

determinations." Bass Enters. Prod. Co. v. United States, 381 F.3d 1360, 1365 

17 We commend the learned Special Referee for his expert handling of this case, 

including his thorough and excellent order. 

18 Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). 
   

(Fed. Cir. 2004) (citations omitted). "In an action at law, on appeal of a case tried 

without a jury, the findings of fact of the judge will not be disturbed upon appeal 

unless found to be without evidence which reasonably supports the judge's 

findings." Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 

773, 775 (1976). "The judge's findings are equivalent to a jury's findings in a law 

action." Id. (citing Chapman v. Allstate Ins. Co., 263 S.C. 565, 567, 11 S.E.2d 

876, 877 (1974)). The evidence compellingly supports the findings of the Special 

Referee. 

A. Flowage Easement 

Columbia Venture argues the County's adoption of the revised FEMA flood maps 

(which designate most of Columbia Venture's property as lying within the 

regulatory floodway and trigger development restrictions that prevent Columbia 

Venture from expanding the levees) is tantamount to the County taking a flowage 

easement upon Columbia Venture's property for which it is entitled to just 

compensation under the Takings Clause. We disagree, for the Special Referee 

properly found Richland County's floodway development restrictions are simply 

limitations on land use and do not constitute a flowage easement upon Columbia 

Venture's property. 

We acknowledge the well-established principle that government-induced flooding 

may, in some circumstances, constitute a taking that would justify compensation 

under the Takings Clause. See Arkansas Game & Fish Comm'n v. United States, 

133 S.Ct. 511, 518 (2012) ("'[W]here real estate is actually invaded by 

superinduced additions of water, earth, sand, or other material . . . so as to 

effectually destroy or impair its usefulness, it is a taking, within the meaning of the 

Constitution.'") (quoting Pumpelly v. Green Bay Co., 80 U.S. 166, 181 (1871)). 

However, for flooding to amount to a taking, there must be a causal connection 

between the challenged government act and the increased flooding—a connection 

which is lacking in this case. See Sanguinetti v. United States, 264 U.S. 146, 149– 

50 (1924) (finding no taking occurred where there was no causal connection 

between the construction of a nearby government canal and the increased amount 

or severity of periodic flooding). 

In addition to the requirement of a causal connection, a compensable taking occurs 

only where a claimant shows an actual increase in the frequency or severity of 

flooding. See Danforth v. United States, 308 U.S. 271, 285 (1939) (rejecting the 

argument that the passage of legislation in and of itself constitutes a taking and 
 

noting that although "[a] reduction or increase in the value of property may occur 

by reason of legislation . . . [s]uch changes in value are incidents of ownership" 

and "cannot be considered as a 'taking' in the constitutional sense"); see also Stueve 

Bros. Farms, LLC v. United States, 737 F.3d 750, 753 (Fed. Cir. 2013) ("[U]nder 

well-settled law, the apprehension of flooding does not constitute a taking of a 

flowage easement."). Indeed, to successfully show the government has taken a 

flowage easement, a claimant must demonstrate that the occurrence of flooding is 

the "natural consequence of government action" and that such flooding, though it 

may be intermittent, is nevertheless "of a type which will be inevitably recurring." 

Barnes v. United States, 538 F.2d 865, 870–73 (Ct. Cl. 1976) (finding claimant had 

shown a government taking of a flowage easement by demonstrating significant 

damages resulting from frequent and inevitably recurring flooding which was the 

natural consequence of the government's control of the flow of a river through a 

nearby dam). 

In evaluating this claim, we find the United States Supreme Court's decision in 

United States v. Sponenbarger, 308 U.S. 256 (1939), instructive. Following "the 

most disastrous of all recorded floods" which occurred along the Mississippi River 

in the spring of 1927, Congress enacted the Mississippi Flood Control Act of 1928 

(the "1928 Act") which provided for extensive improvements to a 950-mile system 

of levees along both banks of the Mississippi River stretching from Missouri to the 

Gulf of Mexico. Id. at 261. The improved levee system was designed to include 

several designated spillway points, at which the height of the existing levees would 

not be raised and behind which diversion channels would be constructed. These 

lower spillway points were created to divert floodwaters from the main river 

channel in an effort to prevent floods from cresting over the higher riverside levees 

during major flood events. Thereafter, Julia Sponenbarger, an owner of land lying 

in a contemplated diversion channel along the waterway, filed suit against the 

United States alleging the 1928 Act would result in her property being inundated 

with water during major floods, for which she was entitled compensation under the 

Takings Clause. Although the existing levees protecting her land would not be 

altered or reduced under the 1928 Act, Sponenbarger nevertheless claimed a taking 

had occurred because the government planned to improve other nearby levees but 

not those protecting her land. 

The Supreme Court held the 1928 Act did not constitute a taking of Sponenbarger's 

property or a "servitude from excessive floodwaters" because the United States had 

neither caused her property to flood nor "in any wise nor to any extent increased 
the flood hazard thereto." Id. at 263 (internal marks omitted). Since the existing 

levees were to remain in place, the Supreme Court found: 

[T]he 1928 Act had not increased the immemorial danger of 

unpredictable major floods to which [Sponenbarger]'s land had always 

been subject. Therefore, to hold the Government responsible for such 

floods would be to say that the Fifth Amendment requires the 

Government to pay a landowner for damages which may result from 

conjectural major floods, even though the same floods and the same 

damages would occur had the Government undertaken no [action] of 

any kind. So to hold would far exceed even the "extremest" 

conception of a "taking" by flooding within the meaning of that 

Amendment. For the Government would thereby be required to 

compensate a private party owner for flood damages which it in no 

way caused. 

Id. at 265. 

The Supreme Court readily acknowledged that a taking may occur where the 

government directly subjects private land to intermittent floods; however, as to 

Sponenbarger's property, the Court held "[t]he Government has not subjected [her] 

land to any additional flooding, above what would occur if the Government had 

not acted; and the [Takings Clause of the] Fifth Amendment does not make the 

Government an insurer that the evil of floods be stamped out universally." Id. at 

266. 

Here, as in Sponenbarger, the existing levees have remained in place, and unlike 

other cases in which the natural consequence of government action caused an 

increase in flooding, here, the County's actions in adopting FEMA's revised flood 

maps do not, in any way, increase the flood hazard to which Columbia Venture's 

property has historically been exposed. Compare Jacobs v. United States, 290 

U.S. 13, 16 (1933) (finding a compensable flowage easement was created by 

reason of the government's construction of a dam along a tributary of the 

Tennessee River, which caused an increase in the frequency of intermittent 

overflows upon claimant's farmland, destroyed claimant's crops, and impaired his 

use of the land for agricultural purposes), and Cotton Land Co. v. United States, 75 

F. Supp. 232, 233–35 (Ct. Cl. 1948) (finding compensable taking occurred where 

the construction of a dam and the impounding of water in its reservoir caused over 

7,000 acres of claimant's land to be flooded), and Barnes, 538 F.2d at 870–73 
 

(finding claimant demonstrated the government had taken a flowage easement 

where claimant proved significant damages resulting from frequent and inevitably 

recurring flooding that was the natural consequence of the government's control of 

the flow of a river through a nearby dam), with Danforth v. United States, 308 U.S. 

271, 286 (1939) (finding no taking occurred where riverbank levee was not 

lowered from its previous height and the land at issue was "as well protected from 

destructive floods as [it was] formerly" and stating "[t]he Government could 

become liable for a taking, in whole or in part, even without direct appropriation, 

[only] by such [action] as would put upon this land a burden, actually experienced, 

of caring for floods greater than it bore prior"), and Sanguinetti 264 U.S. at 149–50 

(finding no taking occurred despite periodic flooding of claimant's property 

because the land was subject to the same periodic overflows prior to the 

government's construction of a nearby canal and levee system and claimant 

produced no evidence that the amount or severity of flooding was increased by 

construction of the canal). Indeed, the County's ordinances, which allow for 

maintenance and repair but prohibit expansion of the existing levees, merely 

maintain the status quo in terms of the flood risk. Thus, in the absence of any 

increase in flooding attributable to an act of the County, we affirm the Special 

Referee's finding that the County did not take a flowage easement.19 

19 To the extent Appellant argues an exaction has occurred, we would likewise find 

this theory unavailing. This case in no manner falls within the exactions line of 

cases, as Richland County has not required Columbia Venture to grant an easement 

or dedicate a portion of its property for public use. See Dolan v. City of Tigard, 

512 U.S. 374, 391 (1994) (finding conditions on development of property 

constitute a taking if there is not a nexus between the legitimate state interest and 

the condition created or if the burden created by the condition is not "roughly 

proportionate" to the government's justification for regulating) (citing Nollan v. 

California Coastal Comm'n, 483 U.S. 825, 837 (1987)). 

Further, to the extent Columbia Venture argues the County's development 

restrictions amount to a categorical taking under Lucas v. South Carolina Coastal 

Council, 505 U.S. 1003, 1019 (1992) (finding a taking occurs where a regulation 

denies all economically beneficial or productive use of land), we likewise find this 

theory provides no relief because approximately thirty percent of Columbia 

Venture's property is not designated as lying within the regulatory floodway and 

therefore is not subject to the same stringent development restrictions. Moreover, 

the entire tract retained substantial value for agricultural and other purposes, even 

under the existing designations. Indeed, since February 2002, Columbia Venture 
 

 

 

B. Regulatory Taking 

In Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), the 

United States Supreme Court "identified three factors to be weighed in order to 

determine whether a regulatory imposition could constitute a taking under the Fifth 

Amendment, thus requiring compensation on the part of the government for the 

taking of private property." Norman v. United States, 63 Fed. Cl. 231, 261 (2004). 

"In this analysis, the court must balance (1) the extent to which the regulation has 

interfered with the property owner's reasonable investment-backed expectations; 

(2) the economic impact of the regulation on the claimant; and (3) the character of 

the governmental action at issue." Id. (citing Penn Central, 438 U.S. at 124). 

Here, Columbia Venture argues that the Special Referee erred in finding no 

regulatory taking occurred because the Penn Central factors did not preponderate 

in Columbia Venture's favor. We disagree. 

Aside from cases involving a Lucas-type categorical taking, "regulatory takings 

challenges are governed by the standards set forth in Penn Central." Lingle v. 

Chevron U.S.A., Inc., 544 U.S. 528, 539 (2005); see also Byrd v. City of Hartsville, 

365 S.C. 650, 658, 620 S.E.2d 76, 80 (2005) (finding that an inverse condemnation 

claim involving denial of less than all economically viable use is governed by Penn 

Central ). "The 'common touchstone' of each regulatory taking theory is 'to 

identify regulatory actions that are functionally equivalent to the classic taking in 

which government directly appropriates private property or ousts the owner from 

his domain.'" Dunes West, 401 S.C. at 314, 737 S.E.2d at 619 (quoting Lingle, 544 

U.S. at 539, 125 S.Ct. 2074 (emphasis added)). "However, the United States 

Supreme Court repeatedly has declined to identify a specific threshold of 

interference with property rights below which no taking occurs and above which 

there is a taking." Id. at 314–15 (citing Tahoe–Sierra Preservation Council, Inc. v. 

Tahoe Regional Planning Agency, 535 U.S. 302, 332–35 (2002) (holding that 

determining whether a regulatory taking has occurred is not best served by 

has sold approximately 3,000 acres of the property for almost $10 million. Thus, 

no regulation has deprived the property of all economically beneficial use, and no 

Lucas-type categorical taking occurred. See Dunes West Golf Club, LLC v. Town 

of Mount Pleasant, 401 S.C. 280, 313–14, 737 S.E.2d 601, 619 (2013) (finding that 

except in the extraordinary circumstance when no productive or economically 

beneficial use of land is permitted, no taking has occurred) (citing Lucas, 505 U.S. 

at 1015–16). 
categorical rules but rather "requires careful examination and weighing of all the 

relevant circumstances")). 

The Supreme Court has recognized "that no magic formula enables a court to 

judge, in every case, whether a given government interference with property is a 

taking." Arkansas Game & Fish Comm'n, 133 S. Ct. at 518. "In view of the nearly 

infinite variety of ways in which government actions or regulations can affect 

property interests, the [Supreme] Court has recognized few invariable rules in this 

area." Id. "Noting that these constitutional challenges present 'essentially ad hoc' 

inquiries which are largely dependent on the particular circumstances of each case, 

Penn Central identifies the appropriate factors to consider in determining whether 

a taking has occurred: the character of the government action, the economic impact 

of the regulation on the claimant, and the extent to which the regulation has 

interfered with distinct investment-backed expectations." Dunes West, 401 S.C. at 

315, 737 S.E.2d at 619–20 (quoting Penn Central, 438 U.S. at 124). 

In evaluating the Penn Central factors vis-à-vis Columbia Venture's property, the 

Special Referee noted that the property was historically, and still may be, used for 

agricultural and recreational purposes, even with the regulatory floodway 

designation. However, the Special Referee nevertheless found the regulatory 

floodway designation significantly impaired the fair market value of the property 

since mixed-use development, the highest and best use of the property, would not 

be possible. The Special Referee found this was the only Penn Central factor that 

preponderated in Columbia Venture's favor, and that on balance, this factor was far 

outweighed by the other two—namely, the unreasonableness of Columbia 

Venture's development expectations and the important, safety-enhancing character 

of the government action. Columbia Venture contends this was error. We disagree 

and address each in turn. 

1. Investment-Backed Expectations 

Columbia Venture urges this Court to reverse the Special Referee's findings, 

claiming its Green Diamond development plans were reasonable and achievable 

and that the County "induced" its development expectations by adopting the 

contingent resolution regarding levee maintenance and executing the non-binding 

memorandum of understanding regarding the same prior to purchase. We find the 

Special Referee did not err in concluding Columbia Venture's expectations were 

unreasonable. 
 

In evaluating a regulatory taking claim, "[t]he purpose of consideration of 

plaintiffs' investment-backed expectations is to limit recoveries to property owners 

who can demonstrate that they bought their property in reliance on a state of affairs 

that did not include the challenged regulatory regime." Cienega Gardens v. United 

States, 331 F.3d 1319, 1345–46 (Fed. Cir. 2003) (quotations and citations omitted). 

"A property owner's reasonable investment-backed expectations are defined at the 

time the property is purchased." Norman v. United States, 63 Fed. Cl. 231, 267 

(2004) (citation omitted). 

In examining a party's investment-backed expectations, "'the regulatory regime in 

place at the time the claimant acquires the property at issue helps to shape the 

reasonableness of those expectations.'" Appolo Fuels, Inc. v. United States, 381 

F.3d 1338, 1348 (Fed. Cir. 2004) (quoting Palazzolo v. Rhode Island, 533 U.S. 

606, 633 (2001) (O'Connor, J., concurring)). In examining the reasonable 

expectations prong, the level of industry regulation is a "pertinent but not 

determinative factor." Chancellor Manor v. United States, 331 F.3d 891, 906 (Fed. 

Cir. 2003). "The subjective expectations of the [claimant] are irrelevant." Id. at 

904 (citation omitted). "The critical question is what a reasonable owner in the 

[claimant's] position should have anticipated." Id. 

As for the regulatory scheme at issue here, the NFIP was enacted in 1968, and the 

County has been a participant since 1981—well before Columbia Venture 

purchased the property. Based on the evidence presented at trial, there is no doubt 

that Burroughs & Chapin, Columbia Venture's managing member, was a 

sophisticated real estate development company with actual and constructive notice 

of the County's floodplain development restrictions that essentially prohibited 

construction within a regulatory floodway. Moreover, at the time of the purchase, 

Columbia Venture was well aware of the revised FEMA flood map's floodway 

designation and the fact that such designation carried with it extensive regulatory 

implications affecting over seventy percent of the property. 

Although Columbia Venture may have subjectively believed that, in spite of all 

this, it would nevertheless be allowed to develop the extensive Green Diamond 

project, we find any such expectation was not objectively reasonable. As the 

Special Referee found: 

[P]rior to purchase, Columbia Venture had made very little investment 

in actual engineering analysis of its levee. Columbia Venture did not 

know if it could convince FEMA to issue a Flood Map with no 
 

floodway. Columbia Venture did not know whether it could upgrade 

its levee to meet FEMA's levee certification requirements. It did not 

know whether Richland County would ultimately accept 

responsibility for maintenance. It did not even have the financial 

resources in hand to undertake levee construction; in fact, Columbia 

Venture expected this cost to be paid through public financing. 

. . . . 

Columbia Venture faced an uncertain path forward with very little 

technical data and a complex regulatory scheme. Even Burroughs & 

Chapin's Board of Directors admitted that Green Diamond was 

"purely speculative in nature." This complex array of moving parts, 

all of which needed to fall into place in order for Columbia Venture to 

be able to develop its Property to the extent that it hoped for, made 

Columbia Venture's investment backed expectations unreasonable. 

There is ample evidence in the record to support the Special Referee's factual 

findings, and we find the Special Referee did not err in determining this factor of 

the Penn Central analysis weighs against a taking. See Mehaffy v. United States, 

499 F. App'x 18, 22 (Fed. Cir. 2012) (holding that recovery under a takings 

analysis is limited to property owners who can demonstrate reliance on a 

regulatory scheme that would allow their development plans to proceed 

unhindered); Paradissiotis v. United States, 304 F.3d 1271, 1276 (Fed. Cir. 2002) 

(finding that when a party moves forward with a transaction in light of actual or 

constructive knowledge of changing regulatory circumstances, "[t]he fact that his 

risk-taking turned out badly for him does not render it a taking in violation of the 

Fifth Amendment").20 

20 To be clear, we do not find the fact that Columbia Venture was on notice of the 

impending floodway designation prior to its purchase of the property to be 

dispositive of the takings claim; indeed, such a finding would be inconsistent with 

the United States Supreme Court's decision in Palazzolo v. Rhode Island, in which 

the Supreme Court reversed the state supreme court's finding that "the acquisition 

of title after the effective date of the regulations barred the takings claims." 533 

U.S. 606, 631 (2001). However, by the same token, Palazzolo does not require 

this Court to ignore the timing or sequence of the claimant's notice of the 

regulatory imposition relative to the purchase of the property in evaluating the 

reasonableness of investment-backed expectations. To the contrary, timing and 
 

 

 

2. Character of the Governmental Action 

Columbia Venture argues the Special Referee erred in failing to find this prong 

preponderates in its favor and contends it alone bears a disproportionate burden of 

the County's flood map designations and that it receives no reciprocity of 

advantage by virtue of the regulation. We disagree, and find this factor likewise 

lends Columbia Venture no support. 

The "character of the Government action" prong of the Penn Central analysis 

examines "the magnitude or character of the burden a particular regulation 

imposes upon private property rights" and "how any regulatory burden is 

distributed among property owners." Lingle, 544 U.S. at 542. In evaluating the 

benefits and burdens of a government regulation, "a taking does not take place if 

the prohibition applies over a broad cross section of land and thereby 'secure[s] an 

average reciprocity of advantage.'" Penn Central, 438 U.S. at 147 (quoting 

Mahon, 260 U.S. at 415) (noting that the concept of "reciprocity of advantage" is 

the reason zoning does not constitute a taking and stating "[w]hile zoning at times 

reduces individual property values, the burden is shared relatively evenly and it is 

reasonable to conclude that on the whole an individual who is harmed by one 

aspect of the zoning will be benefitted by another"). Indeed, the Fifth Amendment 

"'prevents the public from loading upon one individual more than his just share of 

the burdens of government'" and provides that only when an individual "'surrenders 

to the public something more and different from that which is exacted from other 

members of the public, [shall] a full and just equivalent [] be returned to him.'" Id. 

at 417–18 (quoting Monongahela Navigation Co. v. United States, 148 U.S. 312, 

325 (1893)). 

Considering the character of the County's floodplain development restrictions, we 

find the important public purposes of mitigating the social and economic costs of 

flooding that are served by the County's ordinances are substantial and legitimate. 

See Dolan, 512 U.S. at 387 (acknowledging that floodplain development 

restrictions further legitimate public purposes of mitigating the serious risks posed 

by flooding). Moreover, the County's regulations further the important federal 

sequence are quite probative and material to our analysis; we note they are simply 

not dispositive. See id. at 633 (noting "the regulatory regime in place at the time 

the claimant acquires the property at issue helps to shape the reasonableness of 

those expectations") (O'Connor, J., concurring). 
purposes served by the NFIP, namely to reduce the losses caused by flood damage, 

to create a unified national program for floodplain management, and to increase the 

availability of affordable flood insurance for all County residents. See 42 U.S.C. § 

4001 (setting forth Congressional findings and declaration of purpose for the 

NFIP). 

Columbia Venture's contention that it alone bears the burden of the County's 

ordinance is without merit. Indeed, the ordinance is applicable to all property 

located within a floodplain, which encompasses over 16,500 acres throughout the 

County. Richland County, S.C., Code § 8-18 (2001). This provision does not 

unjustly burden Columbia Venture. See Penn Central, 438 U.S. at 147 ("[A] 

taking does not take place if the prohibition applies over a broad cross section of 

land and thereby 'secure[s] an average reciprocity of advantage.'" (quoting Mahon, 

260 U.S. at 415))). 

Moreover, in terms of reciprocity of advantage, the County's restriction of 

floodway development benefits all owners of floodplain property within the 

County by reducing general flood hazards and allowing access to flood insurance 

under the NFIP. See 42 U.S.C. § 4022(a) (providing flood insurance coverage is 

available only in areas where governing bodies have adopted adequate land use 

and control measures); Sponenbarger, 308 U.S. at 267 (noting that where 

enforcement of a broad flood control program "measured in its entirety greatly 

reduces the general flood hazards," such a program is "highly beneficial" to 

individual tracts of land and does not involve a taking). Further, the County's 

limitations on development in flood-prone areas reduce the inherent risk of floodrelated property damage and benefit all County taxpayers and residents by 

reducing the County's potential liability incurred in emergency response, rescue, 

evacuation, and other actions taken during a flood. See, e.g., Roger A. Pielke, Jr., 

et al., Flood Damage in the United States, 1926–2003: A Reanalysis of National 

Weather Service Estimates 55 (National Oceanic & Atmospheric Administration, 

June 2002) (estimating that between 1929 and 2003, urban floods in the United 

States caused approximately $171 billion in property damage and noting the need 

for effective development management to mitigate future flood hazards as 

"[e]conomic damage results from an interaction between flood waters and human 

activities in the flooded area"). 

We find there is considerable evidence in support of the Special Referee's finding 

that this prong of the Penn Central analysis preponderates in favor of the County. 

Indeed, in light of the potential public costs of extensive development in the 
regulatory floodway, we reject the argument that the County's floodway 

development restrictions constitute anything but responsible land-use policy. See 

Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2595 (2013) 

("Insisting that landowners internalize the negative externalities of their conduct is 

a hallmark of responsible land-use policy, and we have long sustained such 

regulations against constitutional attack." (citing Village of Euclid v. Ambler Realty 

Co., 272 U.S. 365 (1926))). 

We conclude the Special Referee correctly determined that Columbia Venture's 

lack of reasonable investment-backed expectations coupled with the legitimate and 

substantial health and safety-related bases for the County's floodplain development 

restrictions outweigh Columbia Venture's economic injury, and under Penn 

Central, no regulatory taking occurred. See Rith Energy, Inc. v. United States, 270 

F.3d 1347, 1352 (Fed. Cir. 2001) (rejecting a regulatory taking claim where the 

challenged government action aimed at preventing possible contamination into a 

water supply caused a substantial diminution in the value of certain mining leases 

and stating "[t]he exercise of the police power to address that kind of general 

public welfare concern is the type of governmental action that has typically been 

regarded as not requiring compensation for the burdens it imposes on private 

parties who are affected by the regulations"). 

IV. 

In sum, we find no taking occurred. Richland County is not the "'involuntary 

guarantor of the property owner's gamble that he could develop the land as he 

wished despite the existing regulatory structure.'" Mehaffy v. United States, 102 

Fed. Cl. 755, 765 (2012) (quoting Forest Props., Inc. v. United States, 39 Fed.Cl. 

56, 76–77 (1997)). "Purchasing and developing real estate carries with it certain 

financial risks, and it is not the government's duty to underwrite this risk as an 

extension of obligations under the takings clause." Taub v. City of Deer Park, 882 

S.W.2d 824, 826 (Tex. 1994). Because no taking occurred, the decision of the 

Special Referee is affirmed. 

AFFIRMED. 

TOAL, C.J., PLEICONES, BEATTY and HEARN, JJ., concur.