Childers v. United States

In the United States Court of Federal Claims

No. 08-1981

No. 07-4262

(Filed: August 5, 2013)

(Reissed: April 2, 2014)

************************

NATHAN and DEBORAH *

CHILDERS, et al., *

*

Plaintiffs, *

* Fifth Amendment Taking; Rails-

v. * to-Trails, 16 U.S.C. § 1241 et seq.;

* Just Compensation; Fair Market

THE UNITED STATES, *

* Value of Property Pre- and Post-

Defendant. * Taking; Severance Damages;

* Conversion Land Damages; Cost

************************ to Cure; Buffering; Loss of

************************ Access; Unit Rule; Noneconomic

CALUSA LAKES COMMUNITY * Remainder; Highest and Best Use;

ASSOCIATION, et al., *

Private Deed Restrictions; Public

*

Plaintiffs, * Use Restrictions; Zoning;

* Covenants, Conditions, and

v. * Restrictions; Expert Disclosures;

* Striking Expert Testimony.

THE UNITED STATES, *

*

Defendant. *

*

************************

Mark F. (Thor) Hearne, II, Lindsay S.C. Brinton, and Meghan S. Largent, Arent Fox

LLP, 112 S. Hanley Road, Suite 200, Clayton, MO 63105; Debra J. Albin-Riley and Joseph L.

Cavinato, III, Arent Fox LLP, 555 West Fifth Street, 48th Floor, Los Angeles, CA 90013, for

Plaintiffs.

Ignacia S. Moreno, Carol L. Draper, Lary Cook Larson, and Jason A. Hill, United States

Department of Justice, Environment & Natural Resources Division, 601 D Street, N.W.,

Washington, DC 20044; Kristine S. Tardiff, United States Department of Justice, Environment &

Natural Resources Division, 53 Pleasant Street, 4th Floor, Concord, NH 03301, for Defendant.

Charlotte M. Youngblood, United States Department of Justice, Environment & Natural

Resources Division, 601 D Street, N.W., Washington, DC 20044, of Counsel.

____________________________________________________________________

OPINION AND ORDER

_____________________________________________________________________

Contents

Findings of Fact ............................................................................................................................................ 6

Discussion ..................................................................................................................................................... 8

Jurisdiction ................................................................................................................................................ 8

Legal Standards Governing Just Compensation ....................................................................................... 8

Appraisals of the Subject Properties ....................................................................................................... 10

The Experts’ Methodologies ................................................................................................................... 10

Quantitative Versus Qualitative Comparable Sales Analysis ............................................................. 10

Appraisal Principles ................................................................................................................................ 12

The Propriety of Applying a Large-Lot Discount ............................................................................... 12

The Propriety of Considering Use Restrictions .................................................................................. 14

The Efficacy of a Private Deed Restriction......................................................................................... 17

Public Use Restrictions and the Ability to Rezone Property in Sarasota County in   2004 .............. 20

The Taking’s Effect on the Fair Market Value of Properties Adjacent to the Trail................................ 25

Plaintiffs’ Paired Sales Analysis ......................................................................................................... 25

Plaintiffs’ Anecdotal Evidence ........................................................................................................... 26

Plaintiffs’ Evidence on Potential Future Uses of the Legacy Trail ..................................................... 27

Defendant’s Paired Sales Analysis ..................................................................................................... 27

Defendant’s Trail Impact Studies ....................................................................................................... 27

Defendant’s Anecdotal Evidence ........................................................................................................ 28

Defendant’s Evidence on Future Uses of the Legacy Trail ................................................................ 29

The Court’s Assessment of the Experts’ Opinions on Whether the Legacy Trail Negatively Impacted

Property Values ....................................................................................................................................... 29

The Diminution in Value to the Remainder Due to the Trail ................................................................. 31

The Width of the Buffer ...................................................................................................................... 31

The Cost of Buffering ......................................................................................................................... 33

Just Compensation for Plaintiffs’ Individual Properties ............................................................................. 35

Mission Valley ........................................................................................................................................ 35

Plaintiffs’ Expert’s Valuation of Mission Valley................................................................................ 35

Defendant’s Expert’s Valuation of Mission Valley ............................................................................ 39

2

What Is the Proper “Before Value” of Mission Valley? ..................................................................... 42

Just Compensation for Mission Valley ............................................................................................... 44

Stoneybrook ............................................................................................................................................ 44

Plaintiffs’ Expert’s Valuation of Stoneybrook.................................................................................... 44

Defendant’s Expert’s Valuation of Stoneybrook ................................................................................ 48

What Is the Proper “Before Value” of Stoneybrook? ......................................................................... 51

Just Compensation for Stoneybrook ................................................................................................... 53

TPC-Prestancia ....................................................................................................................................... 55

Plaintiffs’ Expert’s Valuation of TPC-Prestancia ............................................................................... 55

Defendant’s Expert’s Valuation of TPC-Prestancia ........................................................................... 60

What Is the Proper “Before Value” of TPC-Prestancia? .................................................................... 63

Just Compensation for TPC-Prestancia............................................................................................... 64

Arielle ..................................................................................................................................................... 64

Plaintiffs’ Expert’s Valuation of Arielle ............................................................................................. 66

Defendant’s Expert’s Valuation of Arielle ......................................................................................... 70

What Is the Proper “Before Value” of Arielle? .................................................................................. 73

Just Compensation for Arielle............................................................................................................. 75

JMC ......................................................................................................................................................... 76

What Is the Proper “Before Value” of JMC? ...................................................................................... 76

Just Compensation for JMC ................................................................................................................ 76

Palmer Ranch .......................................................................................................................................... 78

Plaintiffs’ Expert’s Valuation of Palmer Ranch.................................................................................. 79

Defendant’s Expert’s Valuation of Palmer Ranch .............................................................................. 83

What Is the Proper “Before Value” of Palmer Ranch? ....................................................................... 86

Just Compensation for Palmer Ranch ................................................................................................. 86

Pine Ranch East ...................................................................................................................................... 90

Plaintiffs’ Expert’s Valuation of Pine Ranch East .............................................................................. 90

Defendant’s Expert’s Valuation of Pine Ranch East .......................................................................... 94

What Is the Proper “Before Value” of Pine Ranch East? ................................................................... 97

Just Compensation for Pine Ranch East ............................................................................................. 98

Calusa Lakes ........................................................................................................................................... 99

Plaintiffs’ Expert’s Valuation of Calusa Lakes................................................................................. 100

Defendant’s Expert’s Valuation of Calusa Lakes ............................................................................. 103

3

What Is the Proper “Before Value” of Calusa Lakes? ...................................................................... 106

Just Compensation for Calusa Lakes ................................................................................................ 108

The Childers Property ........................................................................................................................... 108

What Is the Proper “Before Value” of the Childers Property? ......................................................... 109

Just Compensation for the Childers Property.................................................................................... 109

The Marlin Property .............................................................................................................................. 109

What Is the Proper “Before Value” of the Marlin Property? ............................................................ 110

Just Compensation for the Marlin Property ...................................................................................... 110

The Davids Property ............................................................................................................................. 110

Plaintiffs’ Expert’s Valuation of the Davids Property ...................................................................... 111

Defendant’s Expert’s Valuation of the Davids Property................................................................... 114

What Is the Proper “Before Value” of the Davids Property?............................................................ 116

Just Compensation for the Davids Property ...................................................................................... 117

The Mirman Property ............................................................................................................................ 117

Plaintiffs’ Expert’s Valuation of the Mirman Property..................................................................... 118

Defendant’s Expert’s Valuation of the Mirman Property ................................................................. 121

What Is the Proper “Before Value” of the Mirman Property? .......................................................... 124

Just Compensation for the Mirman Property .................................................................................... 124

The Glueck Property ............................................................................................................................. 125

What Is the Proper “Before Value” of the Glueck Property? ........................................................... 125

Motion to Strike Expert Testimony Regarding Buffering on the Glueck Property .......................... 125

Just Compensation for the Glueck Property ..................................................................................... 130

Conclusion ................................................................................................................................................ 133

Appendix A: Northern Segment of Palmer Ranch DRI ............................................................................ 135

Appendix B: Southern Segment of Palmer Ranch DRI ............................................................................ 136

Appendix C: Aerial View of TPC ............................................................................................................. 137

Appendix D: Aerial View of Arielle ......................................................................................................... 138

Appendix E: Arielle Conceptual Development Plan ................................................................................ 139

Appendix F: Plat for Arielle ..................................................................................................................... 140

Appendix G: Aerial View of JMC ............................................................................................................ 141

Appendix H: Aerial View of Palmer Ranch ............................................................................................. 142

Appendix I: Aerial View of Pine Ranch East ........................................................................................... 143

Appendix J: Aerial View of Calusa Lakes ................................................................................................ 144

4

Appendix K: Aerial View of the Glueck Property .................................................................................... 145

5

WILLIAMS, Judge.

This Fifth Amendment taking case comes before the Court following a trial on damages.

Plaintiffs, landowners of 13 separate properties in Sarasota, Florida, seek just compensation

stemming from the imposition of a recreational trail across their properties pursuant to the Rails

to Trails Act.1 Specifically, Plaintiffs seek $8,703,800, representing $4,938,200 for the

encumbrance of the trail and $3,765,600 in severance damages. Defendant asserts that

compensation should be limited to the encumbrance, which it claims is properly valued at

$2,220,900. The Court awards just compensation in the amount of $5,701,579.73 representing

$4,706,047.56 for the land encumbered by the corridor plus severance damages of $995,532.17.

Findings of Fact2

On April 2, 2004, the Surface Transportation Board (“STB”) issued an order authorizing

a “rail-to-trail” conversion of a railroad right-of-way in Sarasota County, measuring 12.43 miles

long. Plaintiffs’ land abuts this right-of-way, and the conversion resulted in a recreational trail

easement on Plaintiffs’ properties measuring 50 feet wide.3 No railroad traffic had moved over

this railroad line since March 2002. Rogers v. United States, 90 Fed. Cl. 418, 421 (2009).

After the STB authorized the conversion, the railroad tracks and ties were removed, the

rail line was graded, and the County paved an asphalt trail. The resulting trail is known as the

Legacy Trail. There are benches and public restrooms at various points along the trail and trail

heads that afford public access. Sarasota County estimates that between 125,000 and 140,000

people use the trail annually. PX 20B (BB-PLTF-12332).

1

The Court granted Plaintiffs’ motion for class certification in Rogers v. United States,

No. 07-273L, on November 21, 2007. On December 14, 2007, this Court consolidated Rogers v.

United States, No. 07-273L, and Bird Bay Executive Golf Course, Inc., No. 07-426L. In

December 2009, the Court consolidated Rogers, Bird Bay, and Bay Plaza v. United States, No.

08-198L, for proceedings on liability and decertified the class in Rogers at Plaintiffs’ request.

Subsequently, this Court severed the claims of the following Plaintiffs from the consolidated

actions: Calusa Lakes Community Association, Inc., Patricia M. Davids, Ilene Mirman, Pine

Ranch East Owners Association, Inc., Pulte Home Corporation, Stoneybrook Golf & Country

Club of Sarasota, Inc., and TPC-Prestancia, Inc. These landowners are seven of the Plaintiffs

named in Bay Plaza.

This Court also severed the claims of the following Plaintiffs in Bird Bay from the

consolidated action: Nathan and Deborah Childers, A. Merle Clark Glueck Trust, JMC Real

Estate Holdings, LLC, Dennis T. and Mary Ann Marlin Revocable Trusts, Mission Valley Golf

& Country Club, Inc., and Palmer Ranch Holdings, Ltd.

2

These findings of fact are derived from the record developed during a seven-day trial on

damages. The Court also conducted a site visit of the properties and the trail with counsel for

both parties. The Court uses “PX” and “DX” to designate trial exhibits and “Tr.” to cite trial

testimony. Citations to exhibit page numbers are to the Bates numbers assigned to a given page.

3

Findings of fact detailing the 13 individual properties are in the Discussion.

6

The 13 subject properties are located in Sarasota County in Florida, east of U.S. Route 41

and west of Interstate 75. PX 10. All of the properties are located within the urban services

boundary, the area where utilities are available and development is encouraged. Tr. 769-72, 801;

PX 11. On the date of the taking, three of the properties were golf courses, four contained a

single-family residence, four were vacant lots, one was being developed as a residential

subdivision, and one was an automobile salvage yard. Landowners whose residences abut the

trail testified that noise, traffic, and instances of trespass and property damage increased because

of the trail, and Plaintiffs submitted analyses indicating that the fair market value of properties

adjacent to a corridor were 16-28% lower than properties off the corridor. Tr. 66-70, 93-97, 124-

26; PX 13, PX 20B (BB-PLTF-12335 to 122336, BB-PLTF-12340); see also Tr. 254-56.

Several of the properties are within or adjacent to the area subject to the Palmer Ranch

Development of Regional Impact (“DRI”) Code, which imposes obligations concerning traffic,

road use, environmental implications, and permissible uses. Specifically, Florida law requires a

large development, which “because of its character, magnitude, or location, would have a

substantial effect upon the health, safety, or welfare of citizens of more than one county,” to have

guidelines and standards for development, referred to as a DRI. Fla. Stat. § 380.06(1) (2011). A

DRI provides benefits to landowners because it allows more flexibility in how the site is

configured and can allow for denser development than would otherwise be permissible. Tr. 806-

07. The Palmer Ranch DRI requires residential developments to be developed as planned unit

developments -- areas “zoned for a single-community subdivision with flexible restrictions on

residential, commercial, and public uses.” Black’s Law Dictionary 1268 (9th ed. 2009); see also

Tr. 805-06.4

Chad Durrance, Plaintiffs’ expert real estate appraiser, described Palmer Ranch as

follows:

The community is a master planned community, and the type of development for

the most part is single family detached, single story for the most part. The

market, the people that are buying there, are retired or golf course communities,

gated, secured, that type of community. Suburban residential is how I’d refer to

it, and it’s rapidly developing out.

Tr. 239-40.5 Developments within the Palmer Ranch DRI must comply with the Palmer Ranch

4

Maps of the Palmer Ranch DRI area depicting 12 of the 13 subject properties can be

found in Appendices A, the Northern Segment of Palmer Ranch DRI, and B, the Southern

Segment of Palmer Ranch DRI .

5

In the related matter McCann Holdings, Ltd. v. United States, No. 07-4261L, the Court

admitted Mr. Durrance as an expert in the field of real estate appraisal in Sarasota County. The

parties stipulated to Mr. Durrance’s expertise in this case. Tr. 185. Mr. Durrance has been a real

estate appraiser for over 20 years and has appraised over 1,000 properties, including properties in

Sarasota County. He has testified in eminent domain proceedings approximately 12 times.

McCann Holdings, Ltd. v. United States, No. 07-4261L, 2013 WL 3326646, at *6 n.6 (Fed. Cl.

June 27, 2013).

7

Code and are subject to approval from the Palmer Ranch Planning and Architectural Review

Board. Tr. 991-96; DX 21 (BB-PLF-18050).

In 2003, Sarasota County changed its zoning laws to facilitate smart growth. Tr. 775.

Crystal Allred, Plaintiffs’ expert on long-range planning and zoning in Sarasota County, who

worked for Sarasota County for 24 years as a Project Manager and Project Planner, testified that

to encourage smart growth, Sarasota County revised its comprehensive plan and issued an

updated future land use map in 2004, establishing limits on the allowable development density

for areas of the County. Tr. 766; PX 11, PX 33.6 For example, residential areas were designated

low-density (less than two dwelling units per acre), moderate-density (between two and five

dwelling units per acre), medium-density (between five and nine dwelling units per acre), or

high-density residential (between 9 and 13 dwelling units per acre). PX 11. Land was also

categorized by zoning district, such as residential single family-1, with a maximum of 2.5

dwelling units per acre, or open use estate-1, with a maximum of one dwelling unit per five

acres. PX 36. In assessing a rezoning petition, the County considered the future land use

designation to be more important than the current zoning designation or district. Tr. 791. As

such, if the property’s future land use designation permitted development at a density greater

than permitted under its current zoning designation, the County would likely permit rezoning to

allow denser development, consistent with the future use designation in the comprehensive plan.

See Tr. 792-97.

Discussion

Jurisdiction

The Tucker Act confers jurisdiction on this Court “to render judgment upon any claim

against the United States founded either upon the Constitution, or any Act of Congress or any

regulation of an executive department, or upon any express or implied contract with the United

States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. §

1491(a)(1) (2006). Here, Plaintiff alleges a taking under the Fifth Amendment of the United

States Constitution, which is a money-mandating provision. Schooner Harbor Ventures, Inc. v.

United States, 569 F.3d 1359, 1362 (Fed. Cir. 2009).

Legal Standards Governing Just Compensation

Plaintiffs’ property was taken when the railroad easement on Plaintiffs’ land was

6

The Court admitted Ms. Allred as an expert in long-range planning and zoning in

Sarasota County. Tr. 766. Ms. Allred is currently a public sector project planner for

WilsonMiller Stantec. Tr. 752, 758. She holds a bachelor’s degree in sociology and a master’s

degree in urban and regional planning from Florida State University. Tr. 753; PX 32. The

subject of her Master’s thesis was DRIs on the Florida coast. Tr. 753-54. Ms. Allred worked for

the Sarasota County Planning Department for 24 years, where she was a Project Manager and a

Project Planner. PX 32. While employed by the County, she worked on updating the

comprehensive plan, amending zoning regulations, critical area plans, corridor plans,

revitalization plans, and rezoning petitions. Tr. 755-56. Ms. Allred managed the County’s

division responsible for processing rezoning and special exception petitions. Tr. 756.

8

converted to a recreational trail easement under the Rails to Trails Act. Rogers, 90 Fed. Cl. at

433. The Act preserves shrinking rail trackage by converting unused railroad rights-of-way to

recreational trails. Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 5-6 (1990); see also

16 U.S.C. § 1241 et seq. (2006). In a rails-to-trails case, the imposition of a recreational trail

creates a new easement for a new purpose across the landowner’s property, which constitutes a

taking entitling the landowners to just compensation. Preseault v. United States, 100 F.3d 1525,

1542-43 (Fed. Cir. 1996) (en banc). Under the Trails Act, through a process known as

“railbanking,” the government retains jurisdiction for possible future railroad use. Caldwell v.

United States, 391 F.3d 1226, 1229 (Fed. Cir. 2004).

Just compensation should be carefully tailored to the circumstances of the case, and this

determination typically requires expert testimony. The Court has discretion in adopting a

methodology that awards a takings plaintiff just compensation. Otay Mesa Prop., L.P. v. United

States, 670 F.3d 1358, 1369 (Fed. Cir. 2012); Washington Metro. Area Transit Auth. v. United

States, 54 Fed. Cl. 20, 36 (2002) (“[I]n dealing with a thorny issue of valuation, it is for this court

to ‘synthesize in its mind . . . the record before it, determine to what extent opinion evidence

rested on facts, consider and weigh it all, and come up with figures supported by all the evidence

. . . .’”) (alteration in original) (quoting United States v. N. Paiute Nation, 183 Ct. Cl. 321, 346

(1968)). The landowner “is entitled to be put in as good a position pecuniarily as if his property

had not been taken. He must be made whole but is not entitled to more.” Olson v. United States,

292 U.S. 246, 255 (1934); see also Kimball Laundry Co. v. United States, 338 U.S. 1, 20 (1949).

“Where the property interest permanently taken is an easement, the ‘conventional’

method of valuation is the ‘before-and-after’ method, i.e., ‘the difference between the value of

the property before and after the Government’s easement was imposed.’” Otay Mesa, 670 F.3d

at 1364 (quoting United States v. Va. Elec. & Power Co., 365 U.S. 624, 632 (1961)). In addition

to the value of the property actually taken, just compensation includes severance damages -- the

diminution in value in the owner’s remaining property resulting from the taking. United States

v. Miller, 317 U.S. 369, 376 (1943) (“If only a portion of a single tract is taken, the owner’s

compensation for that taking includes any element of value arising out of the relation of the part

taken to the entire tract.”); see generally United States v. Grizzard, 219 U.S. 180, 185 (1911)

(“When the part not taken is left in such shape or condition as to be in itself of less value than

before, the owner is entitled to additional damages on that account.”). Plaintiff has the burden of

proof with respect to severance damages and must offer evidence that the remainder lost market

value. Miller v. United States, 223 Ct. Cl. 352, 383-84 (1980); see also Hendler v. United States,

175 F.3d 1374, 1383 (Fed. Cir. 1999); United States v. Honolulu Plantation Co., 182 F.2d 172,

179 (9th Cir. 1950).

The cost to cure -- or the cost of mitigating damages caused by the taking -- provides an

alternative means of quantifying severance damages. It is well established that “[w]hen the cost

of curing the injury to the remainder is less than the outright diminution in its value uncured, the

government may pay the cost of cure.” United States v. 2.33 Acres of Land, 704 F.2d 728, 730

(4th Cir. 1983) (citing United States v. Dickinson, 152 F.2d 865, 870 (4th Cir. 1946), aff’d, 331

U.S. 745 (1947)). As the author of one treatise explained:

It must be cautioned that the cost to cure, while admissible for the purpose of

establishing just compensation, does not create individual rights to damages.

Rather, it is merely evidence of the effect of the taking on market value, and

9

therefore on diminution in value of the remainder. The cost to cure approach is

available only to the extent that the actual cost to cure is less than or equal to the

diminution in value of the remainder, such that evidence of the cost to cure is

admissible only when the cost to cure is no greater than the diminution in value of

the remainder if the condition is left uncured.

4A Julius L. Sackman, Nichols on Eminent Domain § 14A.04[2][a] (rev. 3d ed. 2013) (footnotes

omitted).

Appraisals of the Subject Properties

The parties retained appraisers to value the subject properties before and after the taking.

Both appraisers properly used April 2, 2004, the date of the Notice of Interim Trail Use, as the

date of the taking. Rogers, 90 Fed. Cl. at 428. However, the appraisers disagreed on their

appraisals of nine of Plaintiffs’ properties and certain methodologies and appraisal principles.7

Chad Durrance appraised the subject properties for Plaintiffs using a qualitative

comparable sales analysis and assuming that zoning changes were reasonably probable. In

contrast, John Underwood, Defendant’s expert, appraised the subject properties using a

quantitative comparable sales analysis, and applying the zoning and use restrictions in effect on

the date of the taking.8 Mr. Underwood also applied a large-lot discount to the prices of large

properties.

The Experts’ Methodologies

Quantitative Versus Qualitative Comparable Sales Analysis

In a comparable sales analysis, the appraiser identifies sales of similar properties in a

given market. There are two types of comparable sales analysis: quantitative and qualitative. In

a quantitative analysis, the appraiser makes numerical adjustments based on the component parts

of a property. In a qualitative analysis, the appraiser compares properties without making

numerical adjustments. The appraiser evaluates the comparable properties, deems each property

similar or dissimilar to the subject property with respect to specific factors, assigns each property

an overall rating, and then ranks the properties based on the similarities. Tr. 1465-66, 668-69.

Defendant, citing the Uniform Standards for Federal Land Acquisition, also known as the

7

The appraisers agreed on the valuation of the Glueck property at $200,000 per acre, and

for three properties, Childers, Marlin, and JMC, Plaintiffs’ appraiser valued the properties lower

than Defendant’s expert. Based on the record as a whole, the Court accepts Plaintiffs’ valuations

for the Childers, Marlin, and JMC properties.

8

The Court admitted Mr. Underwood as an expert in real estate appraisal in Sarasota

County in McCann Holdings, Ltd. v. United States. The parties stipulated to Mr. Underwood’s

expertise in this case. Tr. 1437. Mr. Underwood has been a real estate appraiser for over 30

years and has been qualified as an expert witness in federal court approximately 50 times.

McCann Holdings, 2013 WL 3326646, at *8 n.13 (Fed. Cl. June 27, 2013).

10

“Yellow Book,” argues that Mr. Durrance’s appraisals are flawed because he performed

qualitative analyses. The Yellow Book states: “[o]nly when adequate market data does not exist

with which to support quantitative adjustments should the appraiser resort to qualitative

adjustments (i.e., inferior, superior).” Uniform Standards for Federal Land Acquisition 21 (The

Appraisal Institute, 5th ed. 2000).9 Mr. Durrance testified as to why he used the qualitative

approach:

If I have a reason for a percentage adjustment or some kind of basis for it, sure,

you can do that. But again, real quickly, what an appraiser -- what I’m trying to

do is to mimic the market, how would the market react. And the market does not

walk around with a clipboard and a summary chart like this and put minus 15 plus

20 is how this property stacks up to this property. They look at all the available

comparable properties, and what it is they want to buy or sell, and say, how does

this property stack up to the others.

Tr. 455.

Dr. Kilpatrick, Plaintiffs’ expert in appraisal practice standards and methodology, opined

that the qualitative approach was superior here because Plaintiffs’ properties were large tracts

with “multiple interlocking complex attributes, and it would be overly judgmental of an appraiser

to try to separate those attributes out and give a marginal value to each one of them.” Tr. 669-

70.10 Dr. Kilpatrick further testified that quantitative comparable sales analyses are appropriate

for appraising detached single-family properties. Tr. 670.

The Court concludes that for the most part Mr. Durrance’s qualitative analysis was more

persuasive, because he provided a more compelling analysis regarding how the pertinent features

9

The Uniform Standards for Federal Land Acquisition is produced by the federal

government and is intended to provide “general principles applicable to the appraisal of property

for federal land acquisitions by both voluntary means and condemnation.” Uniform Standards for

Federal Land Acquisition 1. The Uniform Standards of Federal Land Acquisition was originally

published in 1971, the fifth edition was published in 2000, and portions of the book are in the

record as Defendant’s Exhibits 58, 59, and 60 and Plaintiffs’ Exhibit 50.

10

The Court admitted Dr. Kilpatrick as an expert in appraisal practice, appraisal

standards, and appraisal methodology. Tr. 656. He is the president and CEO of Greenfield

Advisers, which provides expert testimony, high-amenity property appraisal, and wealth

management services. Tr. 647-48. Dr. Kilpatrick holds an undergraduate degree in accounting,

a master’s degree in business administration with a concentration in real estate economics, and a

doctorate in real estate finance from the University of South Carolina. Tr. 643. Dr. Kilpatrick is

a licensed real estate appraiser in Florida and 25 other states. Tr. 644. He is a certified national

appraisal standards instructor and teaches appraisal methods. Tr. 645. He has authored four

books and over 100 articles and papers. Tr. 646.

11

of a property would affect the price a buyer was willing to pay.11 Plaintiffs’ expert better

assessed features a knowledgeable buyer would consider, such as allowable density, the presence

of environmental lands, and the impact of easements or encumbrances. Mr. Durrance also better

accounted for market conditions by using the contract date, rather than the closing date of a

given property sale. In contrast, Mr. Underwood’s quantitative approach did not as thoroughly

address important considerations such as development restrictions, particular land use

restrictions, and features that impose additional costs, and he used only the closing date for most

sales. Additionally, the experts appraised Plaintiffs’ properties as vacant, with residential and/or

mixed-use development as the highest and best use. As Dr. Kilpatrick testified, the qualitative

approach is preferred for vacant properties while a quantitative approach is better for detached

single-family properties. Tr. 669-70.

Appraisal Principles

The Propriety of Applying a Large-Lot Discount

Defendant’s appraiser, Mr. Underwood, adjusted the price per acre of the comparable

properties for size. Specifically, he decreased a property’s per-acre price by 20% per 100 acres,

and applied this adjustment to properties with sizes of up to 200 acres. Mr. Underwood applied a

large-lot adjustment to the comparable properties used in appraising six of Plaintiffs’ properties,

as follows:

Property Size of Property as Adjustment Applied to Comparable

Appraised Properties

Calusa Lakes 138.75 acres -25 to 10%

Palmer Ranch 123.442 acres -20 to 15%

JMC 229.427 acres -35 to 0%

Mission Valley 175.165 acres -30 to 5%

TPC 201.903 acres -35 to 0%

Stoneybrook 123.322 acres -20 to 15%

Mr. Underwood testified that the adjustments were necessary because as acreage

increases, the price per acre decreases. Tr. 1484. To determine the appropriate adjustment, Mr.

Underwood used paired sales analyses of four properties, ranging from 20.80 to 199.44 acres.

Tr. 1485-86; DX 50 (US-BB001690). Based on these properties, Mr. Underwood determined

that a 100-acre difference in size resulted in a difference in price per acre ranging from 16.1 to

21.6%. DX 50 (US-BB001692). Mr. Underwood looked at sales of large properties in Manatee

County and concluded that a 100-acre difference in size correlated with a difference in price of

24 to 32%. He also considered sales of large and small properties in southern Sarasota County

and found the difference in size correlated with a 19% difference in price per acre. Tr. 1487-88.

Mr. Underwood acknowledged that southern Sarasota County and Manatee County were

11

The exception is the Davids property where the Court found Mr. Underwood’s

comparative analysis and valuation more persuasive because he focused on a comparable sale

that was more similar to the subject property than any of Mr. Durrance’s comparables.

12

different markets than the market in which the subject properties are located. Tr. 1487-88.

Nonetheless, based on these analyses, Mr. Underwood concluded that for up to 200 acres, a 100-

acre difference in size required a 20% adjustment. Tr. 1489-1490. He did not apply an

adjustment for properties over 200 acres, finding that 200 acres was the “break point” because

developers paid the same price per acre for a 210-acre property as they did for a 275-acre

property. Tr. 1489-90. Mr. Underwood also made an adjustment for parcels ranging from 10 to

20 acres, which he derived using the same type of analysis, but the adjustment was smaller --

five percent. Tr. 1491; DX 50 (US BB001838).

Plaintiffs’ experts disagreed with Mr. Underwood’s size adjustment. Mr. Durrance

agreed that a size adjustment is appropriate in some cases, such as where there is an abundance

of large tracts. However, in the subject market there were few large tracts of land, and

developers have purchased smaller parcels and put them together to create larger developments.

Tr. 241. Mr. Durrance testified that a large lot offers flexibility:

[I]f you have a tract of land and there’s a significant difference and the market is

paying significantly higher prices, well then you’re going to cut off a chunk of

your land and sell it in a smaller chunk. So the larger parcel gives you the ability

to do that or keep it together and develop it as one overall planned development. I

mean, it gives you flexibility.

Tr. 241. In a similar vein, Dr. Kilpatrick opined:

I can tell you that in terms of large tracts of development land here in the suburbs

of Sarasota, I don’t see the rationale for a discount. And the simple fact is, there

are enormous economies of scale associated with larger subdivisions.

In other words, it’s frankly easier on a per-house basis to develop a hundred acre

tract than a 20 acre tract. And there are plenty of potential buyers out there for

hundred acre tracts.

Tr. 672.

Dr. Kilpatrick also disputed the numerical adjustment Mr. Underwood applied, testifying:

I couldn’t find what I thought was good support for it. It’s sort of a step variable

thing whereas he says if it’s over, and I can’t remember the exact arbitrary limits,

but if it’s over 20 acres, he’s just going to discount it 10 percent.

If it’s over 50 acres, he’s going to discount it 25 percent. If it’s over 100 acres,

he’s going to discount it 30 percent or something like that, and that seems to be

just sort of a personally developed model. As I testified a little earlier, I don’t see,

as an appraiser, the rationale for size discount model in suburban Sarasota

County, and I know both of these appraisers are from Florida.

Tr. 694-95.

Mr. Underwood’s broad application of rather substantial large-lot discounts does not take

into account the factual circumstances under which Plaintiffs’ properties could have been sold.

13

See e.g., N. Paiute Nation, 183 Ct. Cl. at 346 (recognizing that the trial court is charged with

assessing whether a valuation amount is “supported by all the evidence.”). Here, there is no

evidence that Plaintiffs would have been restricted to selling their large lots in one transaction or

as one parcel, as Mr. Underwood conceded. Tr. 1642; see also Tr. 241, 672, 694-98. Moreover,

it is settled law that land should be appraised at its highest and best use. Olson, 292 U.S. at 255

(“The sum required to be paid the owner does not depend upon the uses to which he has devoted

his land but is to be arrived at upon just consideration of all the uses for which it is suitable.”);

see also Snowbank Enters., Inc. v. United States, 6 Cl. Ct. 476, 484 (1984) (“Any and all factors,

which would cause a reasonable seller to ask a higher sale price for the property and which

would induce a reasonable buyer to pay a higher sale price for the property, should be

considered.”). As such, the Court finds that Mr. Underwood’s large-lot discounts were

unwarranted here.

The Propriety of Considering Use Restrictions

The parties disagree about whether the appraisers should have considered use restrictions

that applied to Plaintiffs’ properties on the date of valuation, April 2, 2004, which affected their

development potential or the highest and best use. Mr. Durrance did not consider any public or

private deed restrictions when he appraised the subject properties. Neither did Mr. Underwood

when he initially appraised the properties in mid-2010, and 2011. See DX 52A (US-BB002957)

(appraisal report for TPC Prestancia dated July 1, 2010); DX 53A (US-BB002677) (appraisal

report for Stoneybrook dated June 29, 2010), DX 54A (US-BB003358) (appraisal report for

Arielle dated December 30, 2011), DX 55A (US-BB003274) (appraisal report for Pine Ranch

East dated December 30, 2011), DX 56A (US-BB002586) (appraisal report for Calusa Lakes

dated June 29, 2010). However, in February 2012, Defendant’s trial attorney sent Mr.

Underwood the following legal instruction:

Consistent with the Uniform Appraisal Standards for Federal Land Acquisition,

and in particular Section B-23, I instruct you to consider each of the subject

properties in its condition and situation at the time of the alleged taking, including

any zoning and use restrictions applicable to each specific property. Zoning

ordinances and use restrictions are of critical importance because they may

restrict the uses to which the property may be lawfully devoted.

DX 49 (US-BB001637).

After receiving the instruction and re-reviewing his original appraisal reports, Mr.

Underwood issued another set of appraisal reports, concluding that the highest and best use for

six of the properties changed because of counsel’s instruction. Tr. 1461-62. Specifically, Mr.

Underwood determined that five properties were subject to open space restrictions that precluded

residential development and that a sixth property could not be developed because it was subject

to a private deed restriction, as listed below:

1. The plat for Pine Ranch East designated certain land as open space. PX 41; DX 3;

2. For Arielle, environmentally sensitive lands were set aside for preservation in the

ordinance approving the development. See DX 18 (US-RB007502), DX 19 (US-

14

RB006161);

3. For Calusa Lakes, the plats and the covenants, conditions, and restrictions for the

development designated land as open space, a drainage area, and a wetland preserve and

stated that the provisions would “bind the TOTAL LANDS of CALUSA LAKES . . . for

a term of ninety-nine (99) years from the date this COMMUNITY DECLARATION is

recorded.” DX 36 (US-PR000151 to 000152, US-PR000173);

4. For Stoneybrook, the ordinance approving the development required that common areas

be set aside as open space for 99 years, and the covenants, conditions, and restrictions for

the development designated a portion of the common areas for a golf course. DX 29

(US-RB006630);

5. For TPC, the resolution approving the development required that land be set aside as

parks and a golf course for 99 years, and the covenants, conditions, and restrictions for

the development designated lands to be used accordingly. DX 30 (BB-PLTF-15879), DX

31 (BB-PLTF-15809 to 15810);

6. Mission Valley may have been subject to a private deed restriction, requiring that the

property be used for a golf and country club complex. PX 6.

Mr. Underwood concluded that land without development potential sold for 15% of the

price of similar developable land -- or 85% less -- and decreased his original valuation of five

properties. Tr. 1498. The amount of the reduction ranged from $114,700 to $24,275,700 per

property. PX 49. In all, the total decrease that resulted from applying the use restrictions was

$92,676,400. PX 49.

Mr. Underwood acknowledged that originally he did not consider use restrictions because

he followed the unit rule, stating:

And to begin with, I had valued all six of them just like the other seven under the

unit rule, fee simple, assuming they could be put to the highest and best use based

on the comprehensive plan. And my conclusion was residential development.

Tr. 1462. Under the “unit rule” referenced by Mr. Underwood, an appraiser does not consider

partial or fractional ownership interests. Instead, the appraiser appraises the property as one

undivided fee that is owned and controlled by a single interest. The Yellow Book explains the

unit rule:

[T]he unit rule requires that property be valued as a whole rather than by the sum

of the values of the various interests into which it may have been carved, such as

lessor and lessee, life tenant and remainderman, and mortgagor and mortgagee,

etc. This is an application of the principle that it is the property, not the various

interests, that is being acquired. Many cases illustrate the unit rule, thus, if there

are several interests or estates in the property, the property should be valued as a

whole, embracing all of the rights, estates, and interests of all who may claim, and

as if in one ownership. The market value of the whole property is later

15

apportioned among those who hold various interests in the property, but this

apportionment generally falls outside the scope of the government appraiser’s

assignment.

DX 58 (Uniform Standards for Federal Land Acquisition 53-54 (footnote omitted). As the

author of one treatise explains:

The unit rule requires that real estate be valued in respect to its gross value as a

single entity as if there was only one owner. There are two aspects to the unit

rule: (1) there can be no separate valuation of improvements or natural attributes

of the land; and (2) the manner in which the land is owned or the number of

owners should not affect the value of the land. The unit rule is designed to protect

the condemnor.

4 Nichols on Eminent Domain § 13.01[16] (footnotes omitted). The unit rule was the primary

reason Mr. Durrance did not consider use restrictions in appraising these six properties. Tr. 383.

Mr. Underwood testified that the restrictions affecting Plaintiffs’ properties were

easements appurtenant and therefore an exception to the unit rule. Tr. 1464. An easement

appurtenant is “[a]n easement created to benefit another tract of land, the use of easement being

incident to the ownership of that other tract.” Black’s Law Dictionary 586 (9th ed. 2009).

However, Mr. Underwood did not explain why the public and private use restrictions on

Plaintiffs’ properties constituted easements appurtenant or why they should be analyzed as

exceptions to the unit rule. Defendant did not present any testimony, documentary evidence, or

legal authority supporting Mr. Underwood’s conclusion that the use restrictions on Plaintiffs’

properties were exceptions to the unit rule.

Mr. Underwood further testified he would not have rewritten the appraisal reports if he

had not received the legal instruction from Defendant’s counsel:

Q And then you testified that between December of 2011 and

February at some point 2012 for six of the properties you rewrote the appraisal

reports in response to Mr. Larson’s letter of instruction, is that correct?

A It’s a legal instruction, that’s correct.

Q And apart from Mr. Larson’s legal instruction would you have

rewritten those appraisal reports?

A No, sir.

Tr. 1611.

In the view of Dr. Kilpatrick, Plaintiffs’ expert in appraisal practice standards and

methodology, Mr. Underwood’s revision of his initial appraisal reports was flawed because there

can only be one unique market value for a given property, and counsel’s instruction did not alter

the market value Mr. Underwood initially derived. Tr. 1698-1701. However, as Mr. Underwood

acknowledged, he applied these use restrictions not because he believed them to be mandated as

16

a matter of appraisal methodology, but as a matter of law. Tr. 1616-18 (“[I]t takes me to is there

a deed restriction in place which I guess might be a legal question.” Tr. 1618). As such, the

Court addresses Mr. Underwood’s revised appraisals, turning first to the private deed restriction.

The Efficacy of a Private Deed Restriction

Mission Valley Golf and Country Club is a private country club that owns a 174.716-acre

property (“Mission Valley”), with an 18-hole golf course, clubhouse, and maintenance buildings

in Sarasota County. Tr. 118, 1473; PX 24B (BB-PLTF-11835 to 11836); Joint Status Report,

Oct. 19, 2012. In 2004, there was no residential development on the property. See PX 24B (BB-

PLTF-11829). Mission Valley is west of Calusa Lakes and north of Mission Valley Estates, two

residential developments. Tr. 119-20. In 2004, the property was zoned open use estate-1, and

designated moderate-density residential under the comprehensive plan, allowing development at

two to five units per acre. PX 24B (BB-PLTF-11833).

The parties dispute whether Mission Valley was subject to a private deed restriction that

would have prohibited development of the golf course on the date of the taking. In 1969, Louise

C. Ewing conveyed 143 acres of property to Mission Valley Golf and Country Club, and the

deed provided:

Grantee shall not use said property for any purpose other than recreational

purposes, it being understood between the parties hereto that the use of the land

shall be for a golf and country club complex and other similar recreational

purposes.

No housing or similar type of development shall be permitted by grantee on the

property herein described.

PX 6. On January 6, 1992, the Circuit Court for Sarasota County issued an Amended Final

Judgment in Ewing v. Mission Valley Golf & Country Club, Inc., Case No. 90-1580-CA-01, which

addressed the deed restriction. The judgment stated in relevant part:

2. The parties entered into a binding contract through protracted

negotiations whereby $100,000.00 was to be paid to Edward J. Ewing as personal

representative of the Estate of Louis C. Ewing. Four honorary memberships were

to be given to Ewing, and, in return, Ewing was to execute a deed releasing the

estate interest in the property.

***

5. Upon defendant’s full performance under this Amended Final

Judgment, plaintiff shall execute and deliver a deed to defendant releasing the

estate’s interest in the property.

PX 7.

On December 9, 1994, a quitclaim deed was executed, which provided:

By this Deed, Grantor intends to release all rights with respect to the property

described above, including without limitation any right Grantor may have had to

17

repurchase the property and all other rights of grantor, its successors and assigns,

arising under that certain Deed dated May 9, 1969, from Louise C. Ewing to

Grantee, recorded in O.R. Book 844, at page 709. . . .

PX 8. However, this quitclaim deed was not recorded until February 24, 2012, over seven years

after the taking. Tr. 133; PX 8.

Plaintiffs contend that Sarasota County would not have considered any private deed

restrictions in acting on a rezoning petition if a developer sought to rezone Mission Valley’s golf

course for residential development as of the date of the taking in April, 2004. Pls.’ Post-Trial Br.

103-04. Pursuant to the unit rule, Mr. Durrance did not appraise Mission Valley as subject to

this private deed restriction, explaining:

Q And in terms of this specific property, were you aware that it was

encumbered by, at one point in time, a deed restriction?

A Yes, sir.

Q And so that would be something that you had in your work files

and you considered when you derived your opinion as to the value of this

property?

A That is correct.

Q Was it your understanding that this property was still encumbered

by that deed restriction in April 2004?

A No. My understanding is it was not.

Q And even if it had been encumbered by the deed restriction, how

would a deed restriction that limited the development of the property to only a

golf course, how would that have [a]ffected your appraisal?

A Well, as a private restriction in that manner, you’d go back to the

unit rule or the undivided fee, and if you have two private parties with an interest

in it, appraise the undivided fee, and if one interest hold[s] X percent of the value,

and the other private interest holds the remaining percent of the value, well that’s

a matter that can be apportioned at a later date, but the undivided fee as a vacant

and available to be put to its highest and best use is the methodology that I

followed.

Tr. 382-83.

In valuing Mission Valley in April 2004, Mr. Durrance opined that residential

development would have been the highest and best use. Tr. 382-84. Dr. Kilpatrick agreed with

Mr. Durrance, testifying:

Q And you’ve heard the testimony in this case about the Mission

Valley Country Club, is that correct?

18

A Yes.

Q And there was testimony about an original deed restriction in 1969.

Do you recall that testimony?

A I do.

Q And then you recall the testimony with some exhibits where that

was released in 1992 and 1994?

A I do, and it’s a two-part problem. I mean, (1) there’s evidence that

I’ve seen that the deed restriction was no longer valid, enforced or a matter to be

of interest to us, which then raises the question why did he consider it in the first

place. I mean, it’s just a total red herring; and (2) even if I had never seen the

release, the unit rule tells me I’m supposed to ignore it because it’s not part of the

thing to be considered here.

The original deed restriction simply constituted in effect, from an

appraisal perspective, an easement on the property, which is to be ignored for

purposes of determining the damage according to the take.

Tr. 710-11.

Mr. Underwood himself in his initial appraisal had considered the deed restriction, and

that restriction did not affect his original valuation. Tr. 1617. With respect to Mission Valley,

Mr. Underwood testified:

Q So apart from [counsel’s] letter you would not have looked at a use

restriction when you valued Mission Valley property, is that correct?

A That’s correct. In the original report I specifically stated that there

was a deed restriction in place that restricted its use to a golf course, but that I was

not looking at that private restriction in my valuation.

Tr. 1617-18. Additionally, Ms. Allred credibly testified that the County does not consider

private deed restrictions in considering a rezoning petition, and a private deed restriction would

not have affected a landowner’s ability to rezone a property. Tr. 802-03.

Richard Bass, Defendant’s expert in land use planning, testified that the County would

have considered the deed restriction because the restriction affected whether the owner had

unified control of the property. Tr. 1224-26.12 Specifically, Mr. Bass opined that an heir to the

12

The Court admitted Mr. Bass as an expert in land use planning. Tr. 1069. Mr. Bass is

a consultant with Bass & Associates, Inc. PX 45. He is also a special hearing magistrate for the

Value Adjustment Board of Sarasota County, where he hears appeals from property owners

concerning property tax assessments. Tr. 1035. Mr. Bass holds a bachelor’s degree in urban

planning and environmental management from Florida International University. Tr. 1028. He

previously worked at the Dade County Planning Department and as a consultant with a firm that

provided land planning services for localities without internal planning departments. Tr. 1031.

19

Ewing family estate or a landowner with property abutting the golf course could have sued to

enforce the restriction in the 1969 deed. Tr. 1229-30.13 However, Mr. Bass testified that when

he initially gathered information about Mission Valley in 2010, at Mr. Underwood’s request, he

had obtained a report that stated Mission Valley could be developed with 344.6 units, and he

believed the report contained true and accurate information. Tr. 1272-74. Jerry Gray, the

planning director of Sarasota County from 1983-2003, provided Mr. Bass with the report. Tr.

1270-71.

The Court concludes that Mission Valley should be appraised without the deed

restriction. Defendant has not established that the deed restriction encumbered the property in a

way that would have affected the valuation of the property in 2004. Defendant’s reliance on the

deed restriction ignores both the unit rule and the County’s practice in rezoning. Under the unit

rule, as mandated by the Yellow Book and other appraisal authorities, the appraiser must assume

unified control and ownership without competing partial interests, such as a third party who

might seek to enforce the 1969 Ewing restriction. See Tr. 382-83, 709-11. Further, the Court

credits Ms. Allred’s testimony that the County would not have considered a private deed

restriction if a landowner submitted an application to rezone the property. Tr. 802-03; see also

Tr. 1281-82. Mr. Durrance and Dr. Kilpatrick articulated persuasive opinions that the unit rule

required an appraiser to ignore the private deed restriction in valuing the property. Both Mr.

Bass and Mr. Underwood, Defendant’s experts, fully aware of the deed restriction, initially

appraised Mission Valley applying the unit rule and concluded that the deed restriction had no

impact on the property’s valuation. Tr. 1617, 1272-74. As such, the Court finds that Plaintiffs’

expert appropriately valued Mission Valley ignoring the deed restriction.

Public Use Restrictions and the Ability to Rezone Property in Sarasota County in

2004

Five of Plaintiffs’ properties were subject to public use restrictions limiting development,

and changing such a restriction would have required a rezoning of the property. For three of the

properties, the covenants, conditions, and restrictions governing the development would also

have needed to be changed. Whether these five properties should be appraised giving effect to

the use restrictions depends on whether the properties could have been rezoned and whether the

governing covenants, conditions, and restrictions could have been amended. See Tr. 802-04,

1042-43, 1075-78.

Mr. Bass drafted comprehensive plans and zoning regulations for small governments in Florida.

Tr. 1031-33. Mr. Bass has assisted landowners in preparing and filing rezoning petitions in

Sarasota County. Tr. 1038-40. Mr. Bass is a member of the American Institute of Certified

Planners. PX 45. He has testified in federal and state courts as an expert in land use planning

and zoning. PX 45.

13

However, in his appraisal report, which was filed in conjunction with Plaintiffs’ motion

in limine, Mr. Bass referenced the restriction but did not mention the potential of anyone suing to

enforce the restriction. He concluded that rezoning was not reasonably probable but did not

articulate the reasons for this opinion.

20

Rezoning

Sarasota County’s zoning regulations limited the density of development allowed on a

property on a per-acre basis. For example, a parcel designated residential single-family-2 was

permitted 3.5 dwelling units per acre. Tr. 781. All acreage over which the owner had control

was considered for purposes of calculating permitted density, such as wetlands within the

property, but land under a county road or a recreational trail was not considered. Tr. 781-82.

Additionally, the County’s comprehensive plan established future land use designations that set

forth density classifications. Tr. 795; PX 36. Dr. Kilpatrick explained that a comprehensive plan

“is a longer term view of where the jurisdiction wants land in this area to go,” that typically takes

into account demographic changes, and the anticipated need for schools, roads, shopping centers,

offices, warehouses, and hospitals. Tr. 664. Density permitted under a property’s zoning district

could not exceed the density allowed by its future land use designation in the comprehensive

plan. Tr. 796-97.

A landowner could petition to change his property’s zoning designation or to replat the

property. Ms. Allred testified that it was a routine process to rezone properties so that their

zoning district better comported with the comprehensive plan -- for example, changing a

property zoned open use estate-1 to residential single-family- 1, 2, 3, or 4. She testified:

When Sarasota County [officials] adopted their future land use map, they didn’t

simultaneously rezone all those properties to be consistent. It was anticipated that

property owners would come and rezone when they had, you know, everything,

the infrastructure, and a willing seller, yes.

Tr. 799-800. If a zoning change petition was denied, the landowner could file another petition

one year later, and the Board frequently waived this one-year requirement. Tr. 789. Ms. Allred

credibly testified that Sarasota County processed approximately 80 rezoning petitions in 2004,

and approved 80 to 90% of them. Tr. 791.

The County’s zoning regulations required large developments to set aside some areas as

open space. Tr. 773-76; DX 15. The regulations in effect in 2004, when the taking occurred

provided that urban planned unit developments required a minimum of 30% open space. DX 15

(Sarasota County Code § 6.11.1). Habitat preservation areas, wetlands, buffering zones, and golf

courses all qualified as open space. Tr. 778-80.

Defendant argues that Pine Ranch East, Arielle, Calusa Lakes, Stoneybrook, and TPC-

Prestancia were subject to a 99-year open space restriction under the Sarasota County Zoning

Code, DX 15 (Sarasota County Code § 6.11.1), and that Calusa Lakes, Stoneybrook, and TPC-

Prestancia were subject to 99-year open space restrictions under the covenants, conditions, and

restrictions governing the developments. For example, the covenants, conditions, and

restrictions for Stoneybrook provided:

16.1 Duration of Covenants. The covenants, conditions, easements and

restrictions in this declaration shall run with and bind the property within the

community and shall inure to the benefit of and be enforceable by the county, the

community association, the declarant and any owner, their representative, legal

representative, heirs, successors and assigns for a period to expire on the 99th

21

anniversary of the date of recording of the master declaration in the public records

of Sarasota County, Florida.

DX 29 (US-RB006643); see also DX 28 (US-RB006589), DX 31 (BB-PLTF-15830 to 15831),

DX 37 (US-PR000174). Ms. Allred testified that the 99-year open space requirement was

intended to apply to habitat preservation areas -- not golf courses or parks -- and that is how it

has been implemented. Tr. 780.

As Dr. Kilpatrick testified, when a property is subject to a zoning or use restriction on the

date of the taking, the appraiser must determine whether a change in that restriction would be

reasonably probable. Tr. 662-63. In Dr. Kilpatrick’s view, it would be appropriate for an

appraiser to assume that a property could be rezoned consistent with Sarasota County’s

comprehensive plan. Tr. 667.

Dr. Kilpatrick testified that in appraising the properties with the zoning or use restriction

in place, Mr. Underwood did not appraise the properties at their highest and best use. Tr. 709.

Additionally, Dr. Kilpatrick characterized the 99-year requirement as arbitrary and criticized Mr.

Underwood for assuming that it limited development, testifying that “as an appraiser, to presume

that 99 years is etched in stone tablets is simply fallacious. There’s absolutely no support for that

in the empirical reality in which we live.” Tr. 716-17.

Defendant’s expert in land use planning, Mr. Bass, testified that the County had a policy

of preserving open space once it had been set aside and would not have ignored open space

restrictions that had been recorded with the County via the filing of plats or covenants,

conditions, and restrictions. Tr. 1255, 1176-95 (discussing the ordinance that authorized

development of Stoneybrook and the associated open space restrictions);14 see also Tr. 1197-

1223 (discussing the incremental development order and declaration of covenants, conditions,

and restrictions that applied to TPC-Prestancia and designated areas as open space).

However, Mr. Bass also acknowledged that a property subject to a 99-year open use

restriction in a zoning ordinance, such as Stoneybrook, could be rezoned if there was unified

control over the property:

Q Now, the 99 year restriction you were referencing was found in

documents related to a 1989 rezoning petition. Is that correct?

A I’d have to review it, but I believe in Stoneybrook it was in the

documents.

***

Q So is it your view that this property would be restricted and could

not be developed for anything or rezoned for another use until 2088?

14

In this context, the ordinance is not a generally applicable ordinance. Rather, the

ordinance was specific to Stoneybrook, enacted in response to a rezoning petition for

Stoneybrook. See DX 27.

22

A Again, I think my responses related to unified control and

ownership in order to file a rezone, so whatever year that they could gain unified

control and ownership to file a rezone.

Q But that 99 year restriction is still in the record, isn’t it?

A It is.

Q Well, how would I go about getting rid of it?

A Gain unified control and ownership of the acreage that was

rezoned under that rezone petition by legal description. Once you’ve gained

unified control and ownership you can then proceed to file a rezone.

Q When you’re saying unified control and ownership, what do I need

to do to obtain unified control and ownership?

A I need to own all of the property, have unified control of the

property I wish to rezone. If it’s Stoneybrook then it’s the entirety of

Stoneybrook that was previously rezoned.

***

Q So we assume all the lot owners would have a common interest in

this property, correct? That’s your understanding?

A Yes.

Q So we assume all the lot owners basically were members of the

corporation that owned the legal title of this property? Is that correct?

A Yes.

Q Okay. If we assume that they all agreed to let us try to rezone 4.5

acres of our property so we can sell it for residential use and use the money for

our association, if you accept that assumption would that then allow this to be

rezoned?

A Allow what to be rezoned?

Q The property so that we could take a portion of this land in

Stoneybrook and rezone it for residential development.

A Okay. Under your hypothesis what we’d have to do is file a

corrected deed in order to include the new acreage, file a rezone petition for the

entirety of the new legal description to bring in this land to make it consistent

with the zoning, the special exception or the conditions that are applicable in the

current time, 2004, and proceed through the rezoning process.

Q And assume we did proceed through that process. Would that then

allow this property to be rezoned for residential development or a portion of it?

23

A Under your hypothetical condition, yes.

Tr. 1288-91.

Plaintiffs argue the five properties should be appraised without use restrictions because

there was a reasonable probability the County would rezone the properties to allow for denser

development. Defendant contends that the five properties should be appraised with use

restrictions, claiming that Plaintiffs confuse rezoning a property with removing a use restriction,

and arguing that Plaintiffs did not prove there was a reasonable probability that the restrictions

would be changed.

Contrary to Defendant’s assertions, the removal of a use restriction can be achieved by

rezoning a property. The use restrictions governing Plaintiffs’ properties in 2004 were set forth

in the instruments authorizing development on each property. Rezoning a property would create

a new ordinance, resolution, or incremental development order, which would replace the prior

instrument authorizing the development that contained the use restriction, and the property

would no longer be subject to the open space restriction. Tr. 1288-91.15 As Mr. Bass,

Defendant’s expert, testified, the restriction could be removed by filing a corrected deed, filing a

rezoning petition, and proceeding through the rezoning process. Tr. 1288-91. Thus, removing a

use restriction could be accomplished through the rezoning process.

Defendant further argues that the unit rule, by ignoring use restrictions, would conflict

with the appraiser’s obligation to value the property as it existed on the date of taking. Def.’s

Post-Trial Reply Mem. 8-9. However, it is well settled that valuation of a property on the date

of the taking should take into account a reasonably probable future use. A property owner is

entitled to the fair market value of the property based on its highest and best use. A property’s

highest and best use is not limited to its use on the date of the taking. As the Supreme Court

stated: “[t]he rule is well settled that, in condemnation cases, the most profitable use to which the

land can probably be put in the reasonably near future may be shown and considered as bearing

upon the market value. . . .” McCandless v. United States, 298 U.S. 342, 345 (1936) (citing

Olson, 292 U.S. at 255-56); see also Loveladies Harbor, Inc. v. United States, 21 Cl. Ct. 153, 156

(1990), aff’d, 28 F.3d 1171 (Fed. Cir. 1994) (The highest and best use “is defined by the industry

as, ‘[t]he reasonably probable and legal use of vacant land or an improved property, which is

physically possible, appropriately supported, financially feasible, and that results in the highest

value.’”) (quoting The Appraisal of Real Estate 269 (9th ed. 1987))). Further, a property can be

appraised using a proposed use when there is “a showing of reasonable probability that, at the

time of the taking, the land was both physically adaptable for such use and that there was a need

or demand for such use in the reasonably near future.” Bd. of Cnty. Supervisors v. United States,

276 F. 3d 1359, 1365 (Fed. Cir. 2002). Consideration of a future use is particularly appropriate

here as Ms. Allred testified that rezoning consistent with Sarasota’s comprehensive plan was

15

The Sarasota County Code’s 99-year provision depended upon the instrument

governing the development. Section 6.11(a)(3) provided: “[l]ands designated as open space shall

be restricted by appropriate legal instrument satisfactory to an attorney designated by the Board

of County Commissioners, as open space in perpetuity, or for a period of not less than 99 years.”

DX 15. As such, the 99-year requirement would not be in effect if the instrument containing that

requirement were superseded by rezoning.

24

probable and occurred routinely.

In sum, Plaintiffs have established there was a reasonable probability that the properties

subject to use restrictions could be rezoned for residential development if the use restrictions

were not intended to preserve habitats. Ms. Allred credibly testified that when Sarasota County

reviews a rezoning application, it considers the property’s future land use designation and current

zoning district and gives more weight to the future land use designation. Tr. 791. Defendant’s

expert, Mr. Underwood, concurred that the County’s primary concern is the property’s future

land use designation in the County’s comprehensive plan, stating that “[a] zoning change

conforming to the [future land use designations] is automatic.” DX 54 (US-BB003629)

(appraisal of Pulte); see also DX 50 (US-BB001680 to 001681) (appraisal of Mission Valley);

DX 55 (US-BB001828) (appraisal of Pine Ranch East), DX 56 (US-BB001531) (appraisal of

Calusa Lakes). The five properties that Defendant claims must be appraised subject to open

space restrictions are all designated moderate-density residential -- a designation both parties’

experts agreed would be taken into account in a rezoning application. Mr. Bass, Defendant’s

expert on land use planning, acknowledged Plaintiffs’ properties could be rezoned if there was

unified control and ownership. Tr. 1288-91. Importantly, Ms. Allred testified that for purposes

of deciding whether to rezone a property, Sarasota County did not consider an open space

restriction unless the restriction was implemented to preserve habitats. Tr. 780, 802-03. As

explained more fully below, the Court finds Plaintiffs’ properties should be appraised without

use restrictions, with the exception of Arielle and Calusa Lakes where the restrictions were

directed at habitat preservation.

The Taking’s Effect on the Fair Market Value of Properties Adjacent to the Trail

Plaintiffs’ Paired Sales Analysis

Plaintiffs contend that the imposition of the Legacy Trail negatively affected the value of

properties adjacent to the trail. In conducting his “after taking” valuation, Plaintiffs’ appraiser,

Mr. Durrance, conducted two paired sales analyses to quantify the effect of the trail on the value

of properties adjacent to it. In a paired sales analysis, an appraiser compares two properties that

are alike except for one characteristic. Any difference in the price is attributed to the

characteristic that differs, which allows the appraiser to isolate the effect of that variable. Mr.

Durrance compared sales of vacant lots on and off the railroad corridor to isolate the effect of the

corridor. Tr. 250; PX 13.16 The railroad was sparsely used during the time period these two

subdivisions were developed, in the 1990’s, but nonetheless was operating. PX 16B (BB-PLTF-

12089).

In the first paired sales analysis, Mr. Durrance used 15 sales of vacant lots that occurred

in 1998 and 1999, within Mission Estates, a residential community near the subject properties,

which was built before the railroad corridor was abandoned. Tr. 251-52. The lots within the

development were almost exactly the same size. Tr. 251. Eight of the lots were located on the

corridor, while seven were off the corridor. Mr. Durrance found that lots on the corridor sold for

an average of $35,288, and lots off the corridor sold for an average price of $48,914. Tr. 254;

PX 13. Mr. Durrance concluded that the $13,625 difference -- 28% -- or $170 per lineal foot,

16

Although some properties had homes (Marlin, Childers, Mirman, Davids), both parties’

experts appraised them as vacant.

25

was due to the railroad corridor. PX 13, PX 15B (BB-PLTF-12924 to 12929).

Mr. Durrance conducted a similar paired sales analysis of properties within Bay Oaks

Estates, a residential community near Plaintiffs’ properties. Tr. 255. He analyzed 16 sales of

vacant lots in 1994 and 1995. PX 13, PX 15B (BB-PLTF-12924 to 12929). Nine of the

properties were located on the corridor, and seven were off the corridor. He found that lots on

the corridor sold for an average of $42,100, while properties off the corridor sold for an average

of $50,000, a difference of approximately $8,050 -- 16% -- or $130 per lineal foot. Tr. 256; PX

13, PX 15B (BB-PLTF-12924 to 12929). Based on the Mission Estates and Bay Oaks Estates

paired sales analyses, Mr. Durrance determined that the railroad corridor had a negative effect on

property values ranging from 16% to 28%. PX 15B (BB-PLTF-12924 to 12929).

Plaintiffs’ Anecdotal Evidence

Plaintiffs also offered lay opinion testimony from area residents to support their position

that the trail had a negative effect on property values. Anthony Rolfes, a resident of Pine Ranch

East and president of the Pine Ranch East Homeowners’ Association, testified that he observed

people camping and lighting bonfires on the association’s land near the trail. Tr. 67. He also

testified that someone cut a hole in the barbed wire fence that runs along Pine Ranch East

between the property and the trail. Tr. 67. Mr. Rolfes testified that the main impact of the trail

has been increased traffic, requiring the association to install speed bumps on Pine Ranch East

Road. Tr. 69-70.

Patricia Davids, a plaintiff in Bay Plaza v. United States, No. 08-198L, also testified

about the Legacy Trail’s impact. The Legacy Trail abuts the eastern edge of her property,

extending 641 lineal feet and encumbering 0.737 acres. PX 15B (BB-PLTF-12896). When

asked how the trail has affected her enjoyment of the property, she testified:

It’s totally eroded my serenity or my security in living there. It has just absolutely

devastated my way of life. I live alone, and it’s always a matter of is someone in

your backyard. Is someone coming onto your property? The noise is constant.

It’s like living more on a major highway.

Tr. 94. Ms. Davids further testified that she used to walk on her property on a daily basis, but

now she would like to “run away from home.” Tr. 94. Ms. Davids testified that the trail has

caused a “drug area” to the south, with motorized scooters, firecrackers, and boom boxes. Tr.

96. She also said that it has become difficult to exit the neighborhood because of the increased

pedestrian and bicycle traffic. Tr. 95. She now keeps her house closed up because of the noise

from the trail. Tr. 96.

George Dellos, the president of the Mission Valley Board, testified that the Legacy Trail

is visible from Mission Valley’s golf course. Tr. 121. Mr. Dellos testified about the invasive

Brazilian pepper trees that border the trail: “[a]esthetically it looks terrible. It’s a lot of bramble

and tangled trees, and it cuts out all other vegetation that might flourish that might be under those

trees. So aesthetically it’s very unattractive.” Tr. 121. Mr. Dellos explained that people using

the trail are loud, which disrupts golfers playing at Mission Valley. Tr. 124. Mr. Dellos also

testified the trail has led to occasional trespassers who walk across the golf course and use the

club’s facilities. Tr. 125-26.

26

Plaintiffs’ Evidence on Potential Future Uses of the Legacy Trail

Plaintiffs contend that the Legacy Trail negatively impacted property values because of

the possibility that the railroad corridor could be reactivated. Mr. Rolfes testified that at county

commission meetings, people discussed the possibility of developing light rail or a busway on

the corridor. Tr. 68. Mr. Rolfes testified he would “probably get out of there before that

happened.” Tr. 68. In his appraisals of Plaintiffs’ properties, Mr. Durrance considered that the

corridor could be converted to other transportation uses. Tr. 317; see PX 20B (BB-PLTF-

12332).

Because a prudent buyer would consider possible future uses, Mr. Durrance opined that

any appraisal of the Plaintiffs’ properties should as well. Tr. 319. Mr. Durrance listed the

following contemplated future uses in his appraisal reports: transit use, transportation, an

extension of the Bus Rapid Transit, commuter rail passenger rail service within existing CSX

tracks linking Venice with Sarasota and Bradenton, and joint use of the corridor for transit and

bicycling. See PX 20B (BB-PLTF-12332 to 12333); see also PX 21B (BB-PLTF-13041 to

13042), PX 22B (BB-PLTF-12570 to 12571). Dr. Kilpatrick agreed that it was appropriate to

consider potential future uses of the corridor. Tr. 681-82.

Defendant’s Paired Sales Analysis

Mr. Underwood conducted his own paired analysis to refute Plaintiffs’ claim that the

Legacy Trail negatively affected the value of properties adjacent to the trail. Mr. Underwood

located trails throughout Florida and compared properties on a trail with nearby properties not on

a trail. Tr. 1502-03; see generally DX 51. Mr. Underwood considered 38 properties -- 21 that

sold in 2002-2005, on or near the Pinellas Trail, which is located near St. Petersburg, Florida; 17

located near Orlando, Florida -- 11 on or near the Cady Way Trail that sold in 2007-2009; and 6

on or near the West Orange Trail that sold in 2006-2007. DX 51. For each pairing, Mr.

Underwood identified a property sale on a trail and compared it with the sale of a similar

property in the same neighborhood and within the same time frame but not on a trail. Mr.

Underwood testified: “my conclusion was that there’s no definitive answer and that the data is

not telling me positively one way or the other that there is a negative impact or a positive impact.

And that it’s looking like it’s more neutral than anything else.” Tr. 1505. Specifically, he found

that 9 pairings showed that properties off the trail were worth more than those on a trail, 14

pairings indicated that properties off the trail had a lower value, and 7 pairings had a price

differential of less than 3%, which Mr. Underwood deemed statistically insignificant. Tr. 1504-

05. Mr. Underwood acknowledged that there was a difference between being adjacent to a trail

and near it, but he maintained that his analysis showed that adjacency to the recreational trail did

not have a negative impact.

Defendant’s Trail Impact Studies

In addition, Mr. Underwood considered trail studies that he found on the internet. Tr.

1506. In two of the studies, the researchers surveyed landowners with property immediately

adjacent to the trail and landowners who owned property off the trail. Tr. 1507. According to

Mr. Underwood, the internet studies showed that some people did not like being adjacent to the

trail while others valued the adjacency. Mr. Underwood did not testify about details of the

internet studies, such as location or time period.

27

Defendant also offered expert testimony from Charles Blanton, a transportation and urban

planner.17 Mr. Blanton has worked on recreational trail projects since 1993. He has developed

concept plans for recreational trails in several Florida jurisdictions. Tr. 1390-91. He conducted

the Pinellas Trail Community Impact Study for the Pinellas County Metropolitan Planning

Organization, which was published in 2000. Tr. 1390; DX 46. Pinellas County is approximately

50 miles north of Sarasota County, across Tampa Bay. In the study, Mr. Blanton analyzed home

sales and appraised property values of single-family homes over a multi-year period to see if the

Pinellas Trail impacted property values. Tr. 1403. He also sent surveys to people who resided in

single-family homes within a quarter-mile of the trail. Tr. 1403-04. Mr. Blanton defined

adjacency to the trail as being within a five-minute walk from the trail. Tr. 1407. As a third

component of the study, Mr. Blanton interviewed 20 realtors in Pinellas County about whether

the trail made properties more marketable. Tr. 1410. Of the 14 realtors who offered opinions,

13 believed that properties located closer to the trail were more marketable. Tr. 1410-11.

Based on his study and survey, Mr. Blanton determined that recreational trails have a

positive impact on the value of properties adjacent to the trail. Specifically, he found that the

median sales price of homes within a five-minute walk of the trail increased by 7.83%, while

prices for homes in the county increased by 4.67%, over a 3% difference. Tr. 1407; DX 46 (US-

RBL000041).

Mr. Blanton also reviewed studies from southwestern Ohio conducted in 2003-2005,

Delaware, Marion County, Indiana in 1999, and Austin, Texas in 1999-2001, and determined

that the majority of studies found that trails had a positive effect on property values and, at worst,

a neutral effect. DX 44 (US-RBL000001, US-RBL000006 to 000007). The studies Mr. Blanton

reviewed are not in the record.

Defendant’s Anecdotal Evidence

Defendant presented evidence regarding public perceptions of trails. Mr. Underwood

interviewed Bart Bartholomey, the lead sales agent for a residential community that abuts the

Cady Way Trail in Orlando, Florida. Mr. Bartholomey told Mr. Underwood “there was no

distinction in price for those properties that abutted the Trail, as opposed to those that did not.”

DX 51 (US Ex. 000004 to 000006). Further, Mr. Bartholomey reported that while some

potential purchasers did not want to buy properties abutting the trail, an equal number of people

preferred trail-adjacent properties because they thought the trail would increase property values.

DX 51 (US Ex. 000004 to 000006).

17

The Court admitted Mr. Blanton as an expert in the field of transportation planning.

Tr. 1393. He holds a bachelor’s degree in journalism from the University of Florida and

completed the course work for a master’s degree in urban and regional planning at Florida State

University. Tr. 1385-86; DX 43. He is the founding principal and owner of Renaissance

Planning Group, a transportation and urban planning firm that primarily provides services to

public agencies at the local, state, regional, and federal levels. Tr. 1382. He has worked in

transportation and urban planning for 22 years. Mr. Blanton teaches courses and seminars on

urban and transportation planning. Tr. 1384. He is a member of the American Institute of

Certified Planners (“AICP”) and has been inducted into the College of Fellows of the AICP. Tr.

1382-83.

28

Defendant’s Evidence on Future Uses of the Legacy Trail

In 2001, Mr. Blanton’s firm conducted a study regarding potential long-term uses of the

Legacy Trail corridor through 2035, known as the 2035 Plan, for the Sarasota/Manatee

Metropolitan Planning Organization. The 2035 Plan is not in the record. The 2035 Plan

investigated whether the rail line could be converted to passenger use and concluded that

conversion to passenger use would not be cost-effective because it would not generate sufficient

usage. Tr. 1417. The elected officials of the Manatee/Sarasota Metropolitan Planning

Organization adopted the 2035 Plan in December 2010, and “[i]t is effectively the law of the

land for how state and federal transportation dollars will get spent. Until this plan is updated or

amended, it is the guiding document.” Tr. 1419-20. Mr. Blanton is confident the Legacy Trail

will not be converted to a busway until at least 2035. Tr. 1421.

Mr. Underwood looked at reports discussing railroads across the country and found that

railroad corridors had been reactivated nine times, at the most, a very low number considering all

of the railroads that had been deactivated. Tr. 1512. Mr. Underwood also spoke to the vice

president of Seminole Gulf Railroad, the railroad that had previously operated along the corridor,

who told Mr. Underwood he did not anticipate a need to restore rail service. Tr. 1512. Based on

his review, Mr. Underwood determined that the potential for rail reactivation did not impact the

sale price of properties adjacent to the corridor. Tr. 1514.

The Court’s Assessment of the Experts’ Opinions on Whether the Legacy Trail Negatively

Impacted Property Values

The record as a whole establishes that the Legacy Trail had a negative impact on the

value of land adjacent to the Legacy Trail. Although Plaintiffs’ expert used properties bordering

an existing railroad easement -- not a recreational trail -- in his paired sales analysis, these

properties were the best data available in the subject locale. Mr. Durrance cannot be faulted for

not using data for sales on and off the Legacy Trail itself when such information was apparently

nonexistent. Nor did Defendant’s expert attempt to do a paired sales analysis of properties on

and off the Legacy Trail itself. Mr. Underwood resorted to paired sales analyses in areas farther

away from the Legacy Trail -- St. Petersburg and Orlando -- and looked at studies published by

an organization that advocates for trails that focused on select trails across the country. Mr.

Blanton examined Pinellas County, 50 miles away from Sarasota County, and trails across the

country.

Dr. Kilpatrick identified problems with Mr. Blanton’s September 2001 study of the

Pinellas Trail and his literature review, pointing out that Mr. Blanton’s literature dealt with

community benefits, as opposed to the impact of a trail on immediately adjacent properties, that

the literature and Pinellas Study had significant methodological flaws, that many of the

projections in the Pinellas Study failed to come true, and that other literature, which Mr. Blanton

failed to cite, countered his projections and claims about a trail’s effect. PX 31 (BB-PLTF-

26987). Dr. Kilpatrick concluded that “a more objective review of these underlying sources

would come to exactly the opposite conclusions from the Blanton Report.” PX 31 (BB-PLTF-

26987) (emphasis in original).

The Court does not deem Defendant’s paired sales and broad based studies by an

advocate of trails, the American Trail Conservancy, to be as pertinent and objective as the paired

29

sales analyses performed by Mr. Durrance on the corridor at issue. In the view of Dr. Kilpatrick,

Plaintiffs’ expert in appraisal practice standards and methodology, whom the Court found to be

knowledgeable and credible, Mr. Durrance’s paired sales analysis exceeded the standards of

good appraisal practice. Tr. 683. Mr. Durrance’s paired sales analysis used over 30 properties

and properties in two different subdivisions that were adjacent, not merely proximate, to the

corridor. Dr. Kilpatrick tested Mr. Durrance’s data using statistical analysis and determined it

was robust. Tr. 686-87. Mr. Durrance’s paired sales analysis better accomplished the goal of a

paired sales analysis -- isolating and quantifying the effect of a single variable, the trail -- than

did Mr. Underwood’s analysis.

Both Mr. Underwood and Mr. Blanton used studies that did not distinguish between

properties directly adjacent to a trail and properties located half a mile away. Tr. 693-94, 720-

21. As Dr. Kilpatrick testified, one could not reliably infer that properties near a trail are

affected in the same manner as properties adjacent to it. Tr. 693-94, 720-21. Further, Mr.

Underwood’s paired sales analysis used some properties adjacent to a trail that had buffering.

Tr. 1504, 1687. Additionally, there were significant differences in the properties that Mr.

Underwood used in his paired sales analysis beyond their location; Mr. Underwood compared

improved properties, as opposed to vacant lots, and the homes differed with respect to age,

number of bathrooms, and yard size. These differences make it difficult to isolate the effect of

the trail.

In sum, the Court finds that the imposition of the Legacy Trail negatively affected the fair

market value of properties adjacent to the trail. Before the taking, Plaintiffs’ properties were

adjacent to a rarely used rail corridor. After the taking, Plaintiffs’ properties were encumbered

with an oft-used recreational trail, which caused residents to experience trespassing, noise,

property damage, litter, and increased traffic. Tr. 67, 69, 94, 95, 124, 126. Mr. Rolfes has

experienced increased traffic, the fence next to the trail has been cut, and people have built

bonfires on the association’s land. Ms. Davids feels insecure in her home and no longer enjoys

being outside. Mr. Dellos explained that golfers at Mission Valley are distracted by noise from

the trail and that people trespass onto the club’s property. As Plaintiffs’ experts testified, the

presence of such problems would undoubtedly affect the amount a knowledgeable buyer seeking

property in this area would be willing to pay. The landowners’ testimony was credible, and

Defendant failed to rebut it with any testimony from landowners or other percipient witnesses.

Furthermore, because of the rail-banking that occurs under the Rails to Trails Act, there is

a possibility that rail or other transit could return to the corridor. The Court recognizes that

elected officials of the Manatee/Sarasota Metropolitan Planning Organization adopted the 2035

Plan, which makes reactivation unlikely in the near future, but they had not adopted the 2035

Plan at the time of the taking -- the Plan was adopted in 2010, six years after the date of

valuation. In 2004, a knowledgeable buyer would likely have considered the potential

reactivation of transit on the corridor and factored that into the price he was willing to pay for the

subject properties.

30

The Diminution in Value to the Remainder Due to the Trail

Plaintiffs seek severance damages for 10 of the 13 properties.18 Plaintiffs do not ask the

Court to award them the 16 to 28% diminution in value Mr. Durrance attributed to the trail based

on his paired sales analyses of Bay Oaks and Mission Estates. Rather, Plaintiffs seek severance

damages measured by the cost of buffering. Defendant argues that Plaintiffs are not entitled to

buffering costs because buffering is not required by law, and the cost to cure via buffering is

greater than the alleged decrease in property value.

The Width of the Buffer

Mr. Durrance contacted two developers, J&J Homes and Neal Communities, regarding

the impact of a recreational trail easement on a residential development. Tr. 263. The

developers told Mr. Durrance that when a residential property abuts an undesirable element, such

as the corridor, they install a buffer to separate the property from that element. Tr. 263.

However, Mr. Durrance did not testify as to the width of buffering these developers would use in

given circumstances.

The Sarasota County Zoning Code contains buffering requirements that depend on the

type of property being buffered and the adjoining land use. For example, under this Code,

property within a residential single-family district that is adjacent to another residential single-

family district does not require any buffering, while a property within a residential single-family

district next to a residential multifamily district requires a buffer with 30% opacity. DX 22 (BB-

PLTF-49785). Sarasota County also requires buffering when properties are adjacent to roads or

parking. Tr. 1097. Properties adjacent to Interstate 75 require 20-foot buffers, while

nonresidential properties adjacent to a local street require a six-foot buffer. Tr. 1099-1102; DX

22 (BB-PLTF-49782). The maximum buffer under the County Code for residential property is

25 feet, where residential property is adjacent to commercial property. Tr. 1097. The County

Code does not require buffering between residential properties and a railroad right-of-way. Tr.

1102.

In addition to the County zoning regulations, developments within the Palmer Ranch DRI

are subject to the Palmer Ranch Development Code. Of the properties where damages for

buffering are at issue, Stoneybrook is the only one within the Palmer Ranch DRI. The Palmer

Ranch Development Code provides:

5.07 LANDSCAPE BUFFER. Applicant shall create, design, construct,

irrigate, and provide for continued maintenance of a minimum 50-foot landscape

buffer wherever his parcel boundary has frontage to a planned or existing external

public road right-of-way. . . .

The landscape design of the buffer areas shall include berming, canopy tree

plantings and ornamental tree and shrub masses. . . . .

DX 21 (BB-PLTF-18064). Under the Palmer Ranch Development Code, a public road right-of-

18

Plaintiffs do not seek severance damages for TPC-Prestancia, Arielle, or Palmer

Ranch.

31

way is characterized as a road-right-of way with “vehicular circulation.” DX 21 (BB-PLTF-

18063). James Paulmann, who coordinated the Palmer Ranch DRI review process for Sarasota

County in the 1980’s and later worked for the owner of the Palmer Ranch DRI, testified that

under the Palmer Ranch Development Code, the Legacy Trail is considered an external public

road right-of-way for which a 50-foot wide buffer is required. Tr. 1013-14. Mr. Paulmann

testified that developments along the railroad right-of-way in the Palmer Ranch DRI, such as

Silver Oak and Deer Creek, were developed with 50-foot buffers, and buffers were used for

aesthetics, public safety, and protection from light and noise. Tr. 1014-1015. In his valuation,

Mr. Durrance used a 50-foot buffer for all properties -- even those not within the Palmer Ranch

DRI -- because the Palmer Ranch Development Code required 50-foot buffers for land adjacent

to the rail-trail corridor. Tr. 279, 524; PX 24B (BB-PLTF-11848 to 11849).

Mr. Durrance investigated the cost of a 50-foot buffer, and based on information

provided by WilsonMiller, a planning and landscape architecture consulting firm, estimated the

cost at $150 per lineal foot. Tr. 273.19 Mr. Durrance used a 50-foot buffer based on the Palmer

Ranch DRI, but he acknowledged that a 50-foot buffer was wider than the typical buffer, stating:

“[a]s shown, the 50-foot wide landscape buffer within Palmer Ranch is an increased buffer than

what is typically required when adjacent to similar residential or interim agricultural acreage.

Differently zoned residential properties with differing densities are typically buffered 10 to 20

feet in width . . . .” PX 15B (BB-PLTF-12928). Mr. Durrance acknowledged that some of the

subject properties contained environmental lands, which provided natural buffering when

adjacent to the trail. Under the Sarasota County Zoning Code, water retention ponds and

wetlands can also be used to buffer properties. PX 34. Mr. Durrance did not attribute damages

to the land adjacent to the corridor that did not require additional man-made buffering.

Defendant contends Plaintiffs are not entitled to the cost of buffering because the

Sarasota County Zoning Code requires buffering a property at the perimeter -- not adjacent to a

recreational trail. Further, Defendant contends the largest buffer required under the zoning

regulations is a 25-foot buffer with 70% opacity. From this, Defendant argues there is no basis

for Plaintiffs’ claim that a 50-foot buffer is required for properties adjacent to the trail.

Plaintiffs counter that the County zoning code is not determinative on what buffering is

required. Mr. Durrance cited the Isles of Sarasota development where there is extensive

buffering near a power line corridor, which the zoning code does not require, but which was

necessary to distance homes from a perceived nuisance. Tr. 277.

The Court recognizes that the Sarasota County Zoning Code did not require buffering on

properties adjacent to the Legacy Trail. However, the Palmer Ranch Development Code

required a 50-foot buffer wherever a “parcel boundary has frontage to a platted or existing

external public road right of way,” and the Legacy Trail was considered such an external public

road. DX 21 (BB-PLTF-18063); Tr. 1013-14. Thus, Plaintiffs have proved they are entitled to

severance damages measured by installing a 50-foot buffer on Stoneybrook because Stoneybrook

was within the Palmer Ranch DRI.

19

WilsonMiller’s estimate was based on the Palmer Ranch Development Code and the

cost of buffering in the Isles of Sarasota, a residential development within the Palmer Ranch

DRI.

32

However, Plaintiffs have not proved that properties outside the Palmer Ranch DRI

required 50-foot buffers. The widest buffer required by the County was 25 feet where residential

properties were adjacent to commercial properties. Even properties adjacent to Interstate 75 only

required 20-foot buffers under the County Code. Mr. Durrance, Plaintiffs’ expert, acknowledged

that a 50-foot wide buffer is an increased buffer beyond what is typically required. PX 15B (BB-

PLTF-12928).

Although Plaintiffs have not made a case for a 50-foot buffer for properties outside the

Palmer Ranch DRI, the Court is persuaded that some buffering would be required. The record

demonstrates that residential developments in the subject area have buffering, particularly when

adjacent to perceived nuisances. Tr. 277. Based on the record as a whole, the Court concludes

that a 25-foot buffer would be sufficient to mitigate the harm from the corridor to properties

outside the DRI. This measurement splits the difference between the competing experts where

Mr. Underwood deemed zero buffering necessary and Mr. Durrance, 50 feet. See Navajo Tribe

of Indians v. United States, 9 Cl. Ct. 336, 409 (1986) (“Splitting the difference is a familiar and

permissible technique, especially where the determinations of qualified opposing experts must be

resolved.”) (citing Ass’n of Am. Publishers, Inc. v. Governors of U.S. Postal Service, 485 F.2d

768, 773 (D.C. Cir. 1973)).

The Cost of Buffering

Joseph Samnik, Jr., Defendant’s expert on landscaping, testified about the costs of

installing 25- and 50-foot buffers with 50% opacity.20 Tr. 1323. He used the Sarasota Zoning

Regulations to determine the number and type of plants required. Tr. 1325-27; DX 41. Mr.

Samnik chose plants that were commonly used and readily available and consulted tree vendors

in the local market to determine the prices. Tr. 1331-33. Mr. Samnik concluded a 25-foot buffer

would cost $58.50 per lineal foot, and a 50-foot buffer, $80.80 per lineal foot. Tr. 1337-38; DX

40.

Defendant alleges Plaintiffs overestimated the cost of buffering. Both parties elicited

testimony of higher or lower costs for buffering, depending on the size and the plants and

materials used. Tr. 272, 1365. The evidence indicates that the cost of a 25-foot buffer in

Sarasota County ranged from $58.80 to $75 per lineal foot, for an average of approximately $67

per lineal foot. See Navajo Tribe of Indians, 9 Cl. Ct. at 409. Because Plaintiffs established that

land adjacent to the corridor was harmed by the taking, buffering the land at $67 per lineal foot

20

The Court admitted Mr. Samnik as an expert on the cost of installing landscaping,

buffers, and berms. Tr. 1322. Mr. Samnik is an arboreal consultant with Samnik & Associates,

where he designs, installs, and maintains berms for developers. Tr. 1306. He has worked in

landscaping for 43 years. Mr. Samnick is a graduate of the Arboriculture Consulting Academy

and has received training from the American Society of Consulting Arborists, the Institute of

Food and Agricultural Sciences at the University of Florida, and the International Society of

Arboriculture. DX 39. Mr. Samnik teaches courses to landscape architects and lectures at

colleges and landscaping conferences. Tr. 1313-15. He is a certified arborist. DX 39. Mr.

Samnick has served as the president of the Association of Eminent Domain Professionals and is

a member of The American Society of Consulting Arborists and the International Society of

Arboriculture. DX 39. Mr. Samnik also appraises plants and has testified as an expert

approximately 20 times. Tr. 1320.

33

for a 25-foot buffer provides a reasonable means to quantify severance damages to the

remainders. Likewise, for Stoneybrook, the evidence indicates that the cost of a 50-foot buffer in

Sarasota County ranged from $80.80 to $150 per lineal foot, for an average of approximately

$115 per lineal foot.

Defendant contends that Plaintiffs cannot recover the cost of buffering as “cost-to-cure”

severance damages because Plaintiffs did not specify the diminution in the value of the

remainder of their properties in dollars because of the trail. In order to obtain cost-to-cure

damages, Plaintiffs must establish that the cost to cure does not exceed the diminution in fair

market value of the remainder of their properties. United States v. 2.33 Acres of Land, 704 F.2d

728, 730 (4th Cir. 1982); United States v. Dickinson, 152 F.2d 865, 870 (4th Cir. 1946), aff’d,

331 U.S. 745 (1947). Based on his paired sales analyses in Bay Oaks Estates and Mission

Estates, Plaintiffs’ expert found that properties adjacent to the trail were worth 16 to 28% less

than properties off the trail, but he did not take the next step and quantify this diminution in

value of each remainder in dollar terms. PX 13. Nonetheless, the record contains a sufficient

basis to conclude that Plaintiffs’ requested cost to cure does not exceed the diminution in value

to the remainders.

Mr. Durrance determined that the Legacy Trail caused a 16 to 28% diminution in the

value of the remainder, or an average diminution of 22%. The cost to buffer the land adjacent to

the trail on Plaintiffs’ properties is less than a 22% diminution in the remainder of all 10

properties at issue as evidenced by the following chart:

The Claimed Cost-to-Cure Compared with the Remainders’ Diminution in Value

Plaintiffs’ Diminution

Claimed In Value of Severance

Original Value per Remainder Damages

Property Acreage Remainder Acre by 22% Plaintiffs Seek

Mission Valley 174.716 172.33 $175,000.00 $6,634,705.00 $311,800.00

Stoneybrook 196.076 191.754 $200,000.00 $8,437,176.00 $302,600.00

JMC 229.4185 221.779 $100,000.00 $4,879,138.00 $1,109,300.00

Pine Ranch

East 16.378 13.63 $190,000.00 $569,734.00 $341,400.00

Caulsa Lakes 60.673 59.4 $175,000.00 $2,286,900.00 $45,300.00

Childers 10.363 9.52 $200,000.00 $418,880.00 $110,100.00

Marlin 11.18 10.443 $200,000.00 $459,492.00 $96,300.00

Davids 13.6095 12.82 $150,000.00 $423,060.00 $103,100.00

Mirman 14.478 13.7 $175,000.00 $527,450.00 $101,700.00

Glueck 23.527 22 $200,000.00 $968,000.00 $199,500.00

See Pls.’ Post-Trial Br. 72. As reflected above, the smallest of Plaintiffs’ properties -- the

Childers property -- had a 9.517-acre remainder worth $200,000 per acre, meaning a 22%

diminution would be $418,748. Plaintiffs seek $110,100 in severance damages for the Childers

property -- far less than the diminution in value. Similarly, for JMC, the largest of Plaintiffs’

34

properties, the 221.7705-acre remainder is valued at $100,000 per acre, meaning a 22%

diminution would equate to $4,878,951. Plaintiffs seek $1,109,300 in severance damages for

JMC -- less than one-quarter of the diminution in value of the remainder.

The Court is persuaded that the adjacency of the Legacy Trail resulted in at least a 22%

decrease in the fair market value of the remainder of the 10 properties at issue. Moreover, the

Court finds that, based on the evidence as informed by the site visit, the trail impacts the entire

remainder of properties of less than 25 acres, and the trail substantially impacts the remainder of

larger properties. The cost of buffering land adjacent to the trail on Plaintiffs’ individual

properties is an appropriate measure of severance damages given that this cost is less than the

diminution in the value of the remainder. Sys. Components Corp. v. Fla. Dep’t of Transp., 14

So. 3d 967, 978 (Fla. 2009) (“Severance damages are part of the constitutional guarantee of ‘full

compensation’ and reimburse the owner for the reduction in value the taking causes to any

remaining land . . . .”). “The cost to cure is a flexible tool. It can be used alone or in conjunction

with the payment of just compensation for any uncured severance damages.” 4A Nichols on

Eminent Domain § 14.02[2][c]. As described below for each individual property outside of the

Palmer Ranch DRI, the Court awards cost-to-cure severance damages measured by 25-foot

buffering at a cost of $67 per lineal foot. For Stoneybrook, which is within the Palmer Ranch

DRI, the Court awards cost-to-cure severance damages measured by a 50-foot buffering at a cost

of $115 per lineal foot.

Just Compensation for Plaintiffs’ Individual Properties

Mission Valley

Plaintiffs’ Expert’s Valuation of Mission Valley

Mr. Durrance appraised Mission Valley and determined the highest and best use was

residential development. Tr. 384; PX 24B (BB-PLTF-11836). While the property was zoned

open use estate-1 on the date of the taking, Mr. Durrance determined that it was reasonably

probable that it could be rezoned for denser development because of its location, size, and the

designation for moderate-density residential development in Sarasota County’s comprehensive

plan. PX 24B (BB-PLTF-11835).

In appraising Mission Valley, Mr. Durrance conducted a comparable sales analysis using

six properties in the same market, which had prices ranging from $140,000 to $260,000 per acre.

The following table summarizes his findings:21

21

This chart reflects the data provided in the table in PX 24B (BB-PLTF-11836-37), Mr.

Durrance’s appraisal report of Mission Valley, except as modified to correct an inconsistency

with respect to Sale 2. Specifically, the entry for the overall comparability of Sale 2 is corrected

to state “similar” rather than “inferior.” The table entitled Land Value Summary and Conclusion

in Mr. Durrance’s appraisal report lists Sale 2 as “inferior.” PX 24B (BB-PLTF-11840).

However, the table entitled Summary Table in the same report, and the placement of Sale 2

above Mission Valley on the qualitative ranking on the Land Value Summary and Conclusion

table indicate that Mr. Durrance found Sale 2 to be similar. PX 24B (BB-PLTF-11836 to

11837).

35

superior.23 When sold, Contract 1 needed to be rezoned to allow for denser development, so Mr.

Durrance appraised it as similar to Mission Valley. Id. He found Contract 1 to be slightly

inferior to Mission Valley with respect to environmental lands because 25 to 30% of Contract 1’s

land was designated as environmental lands, while Mission Valley had less than five percent.

PX 24B (BB-PLTF-11836). Lastly, because neither property had any easements or

encumbrances that impacted potential development, Mr. Durrance rated Contract 1 as similar to

Mission Valley.

Mr. Durrance found that Mission Valley was most similar to Sale 2. While Sale 2 was

under contract in late 2002, the sale involved a substantial assignment fee, so Mr. Durrance rated

the market conditions of Sale 2 as slightly inferior because the fee mitigated the effect of the

weaker market conditions in 2002. PX 24B (BB-PLTF-11839). Mr. Durrance found Sale 2’s

location inferior because it was off an unimproved road and was north of Clark Road, a less

desirable area. Id. He rated Sale 2’s size as slightly superior because it was more than 150 acres

smaller than Mission Valley. PX 24B (BB-PLTF-11838 to 11839). Mr. Durrance determined

that Sale 2 had superior zoning/future land use designations because it allowed for denser

development. PX 24B (BB-PLTF-11836 to 11837). Finally, Sale 2 was similar to Mission

Valley with respect to both environmental lands and easements/encumbrances because Sale 2

had a similar percentage of environmental lands and no significant easements or encumbrances.

Id.

Sale 3 was the one property Mr. Durrance found to be superior to Mission Valley. Sale 3

had better zoning/future land use designations because it allowed for denser development -- 146

multifamily residential units. PX 24B (BB-PLTF-11836 to 11837). Sale 3 also had a slightly

superior location and size because it was east of the Palmer Ranch DRI and more than 150 acres

smaller than Mission Valley. PX 24B (BB-PLTF-11840). Mr. Durrance found Sale 3 and

Mission Valley to be similar regarding environmental lands because they both contained less

than five percent. PX 24B (BB-PLTF-11837). Lastly, Sale 3 was slightly inferior with respect

to easements/encumbrances because approximately 2.3 acres of the property were encumbered

with a perpetual mitigation easement that prohibited development. PX 24B (BB-PLTF-11836 to

11838).

Mr. Durrance found Sale 4 to be similar to Mission Valley with respect to three factors:

market conditions, environmental lands, and easements/encumbrances, because Sale 4 was

contracted in mid-2004, the properties had approximately the same amount of environmental

lands, and neither property had any easements or encumbrances that impacted potential

development. PX 24B (BB-PLTF-11836). Sale 4’s location was slightly superior because it

facilitated infill development -- development of an undeveloped parcel that is surrounded by

existing development. Tr. 772 (“Infill is where you encourage those vacant tracts within the

23

There is an inconsistency within Mr. Durrance’s appraisal report of Mission Valley

concerning the sizes of Contract 1 and Sales 2, 3, 4, and 5. The table entitled Summary Table

characterizes the sizes of these five comparable properties as “slightly inferior.” PX 24B (BB-

PLTF-11837). However, the narrative portion of the appraisal report states “[t]he remaining

sales range between about 15 to 40 acres in size and are considered to be slightly superior to the

subject relative to size . . . .” (emphasis added). The narrative portion is consistent with Mr.

Durrance’s other appraisal reports, indicating that the designation should be “slightly superior.”

38

urban area where you want to see urban-related densities of residential development. . . .”); PX

24B (BB-PLTF-11837). Sale 4’s size also provided a slight advantage because it was almost 150

acres smaller than Mission Valley. PX 24B (BB-PLTF-11836 to 11837). Overall, Mr. Durrance

concluded that Sale 4 was slightly superior to Mission Valley. PX 24B (BB-PLTF-11840).

Mr. Durrance appraised Sale 5 as slightly superior to Mission Valley, finding it similar to

Mission Valley with respect to market conditions and easements/encumbrances because its sale

was contracted near the date of the taking and there were no easements or encumbrances that

impacted development. PX 24B (BB-PLTF-11836 to 11837, BB-PLTF-11840). Mr. Durrance

found Sale 5 had superior zoning/future land use entitlements because it sold with multifamily

zoning in place. PX 24B (BB-PLTF-11836 to 11837). Mr. Durrance opined Sale 5 was slightly

superior with respect to size because it was almost 150 acres smaller than Mission Valley, but

slightly inferior as to location because Sale 5 was located near Interstate 75. PX 24B (BB-PLTF-

11837 to 11838). Finally, he found Sale 5 inferior because 20 to 25% of the property had

environmental lands, 15 to 20% more than Mission Valley. PX 24B (BB-PLTF-11836).

Mr. Durrance appraised Sale 6 as inferior to Mission Valley. PX 24B (BB-PLTF-11840).

Location was the only attribute where Sale 6 had an advantage over Mission Valley because Sale

6 was within the Palmer Ranch DRI. PX 24B (BB-PLTF-11836 to 11838). Sale 6 was similar to

Mission Valley with respect to size and zoning/future land use because it was almost 200 acres

and required rezoning to achieve denser development. PX 24B (BB-PLTF-11836 to 11837).

However, Sale 6 was inferior to Mission Valley in terms of market conditions and

easements/encumbrances because the sale was contracted in mid-2003, when prices were lower,

and the property was encumbered with a power line easement and featured a creek and a mesic

hammock. PX 24B (BB-PLTF-11839).

Mr. Durrance ranked the properties and concluded that four of the comparable properties

were superior or slightly superior to Mission Valley, one property was inferior, and Sale 2, which

sold for $176,000 per acre, was similar. Based on this comparable sales analysis, Mr. Durrance

appraised Mission Valley at $175,000 per acre before the taking. Tr. 384-85.

Defendant’s Expert’s Valuation of Mission Valley

Defendant’s expert, Mr. Underwood first appraised Mission Valley without any use

restrictions and with residential development as the highest and best use. After receiving

counsel’s instruction to consider zoning and use restrictions, Mr. Underwood re-appraised

Mission Valley under the assumption that the entire property would remain a golf course because

of the deed restriction. In the second appraisal, Mr. Underwood appraised Mission Valley with a

golf course as the property’s highest and best use.

Mr. Underwood used quantitative adjustments. Mr. Underwood applied a negative

adjustment to the property’s sale price if a comparison property was superior to Mission Valley.

If the comparison property was inferior to Mission Valley, he applied a positive adjustment to

the comparison’s sale price. Mr. Underwood then used the adjusted prices of the comparison

properties to determine the value of the subject property. The following table summarizes the

39

adjusted the price of Sale A-4 by -30%. DX 50 (US-BB001690, US-BB001692). Finally, Mr.

Underwood found that Sale A-4 had a similar land use designation as the subject property,

requiring no adjustment. DX 50 (US-BB001693). Mr. Underwood adjusted the price of Sale A-

4 by -30%, for an adjusted price of $128,249 per acre.

Lastly, Mr. Underwood analyzed Sale A-13. For location, he increased the price of Sale

A-13 by 10% because it was adjacent to a mobile home park and had limited means of access.25

DX 50 (US-BB001690). Because Sale A-13 was 221.77 acres, larger than Mission Valley, Mr.

Underwood adjusted the price of Sale A-13 upward by five percent to reflect his position that

larger properties sell for less per acre. Tr. 1491-92; DX 50 (US-BB001690, US-BB001692).

For land use regulations, he adjusted the price of A-13 downward by 10% because the sale was

contingent on rezoning the property to a mixed-use planned unit development with multifamily

residential housing -- a better zoning designation than its pre-sale designation for residential

manufactured homes. DX 50 (US-BB001693). Mr. Underwood adjusted Sale A-13 by five

percent, yielding an adjusted price of $89,325 per acre.

Before the adjustments, the sale prices of the comparable properties ranged from $90,000

to $259,712 per acre. After adjustments, the prices ranged from $80,325 to $138,288 per acre.

Tr. 1494. Based on his analysis, Mr. Underwood appraised Mission Valley at $135,000 per acre,

with development potential. Tr. 1495.

Following the instruction of Defendant’s counsel, Mr. Underwood then appraised

Mission Valley with the Ewing deed restriction in place -- limiting the use of the property to a

golf course -- by comparing Mission Valley to sales of noneconomic remainders. Tr. 1497. Mr.

Underwood defined a noneconomic remainder as a property without development potential. Tr.

1497-98. Mr. Underwood compared four parcels with development potential to four similar

parcels in similar locations that did not have development potential. Tr. 1498; DX 50 (US-

BB001695). Parcels without development potential sold for 9.8 to 22.6% of the value of the

comparable properties with development potential. DX 50 (US-BB001695). Mr. Underwood

concluded: “[t]hat tells me if I look at it with the deed restriction in place that it can’t be used for

residential development, and that the development potential is gone, that the site has a value

roughly 15 percent of what our unrestricted value is.” Tr. 1498. Mr. Underwood appraised

Mission Valley at $135,000 per acre with development potential, and at $20,300 per acre, or

15% of $135,000 without development potential. Tr. 1499. Thus, he determined that the total

“before value” of Mission Valley without development potential was $3,555,900. Tr. 1499; DX

50 (US-BB001696).

What Is the Proper “Before Value” of Mission Valley?

Plaintiffs’ expert appraised Mission Valley in the “before” condition, at $175,000 per

acre, and Defendant’s expert appraised it at $20,300 per acre with a use restriction and $135,000

per acre without the restriction. As discussed above, the Court finds Mission Valley should be

appraised without the deed restriction affecting valuation.

25

The chart in Mr. Underwood’s report lists a 10% adjustment for A-13 with respect to

location, while the narrative description states that he made a 30% adjustment. Compare DX 50

(US-BB001690), with DX 50 (US-BB001692).

42

In their appraisals of Mission Valley at $175,000 per acre, and $135,000 per acre,

Plaintiffs’ and Defendant’s experts used four of the same properties in their comparable sales

analyses: Sale 5/A-1, Sale 6/A-2, Sale 3/A-3, and Sale 4/A-4. Mr. Durrance found that the

market conditions for Sale 6/A-2 were inferior to those affecting Mission Valley, while Mr.

Underwood did not make any time-based adjustment, indicating the properties had similar

market conditions. Compare PX 24B (BB-PLTF-11836 to 11837), and DX 50 (US-BB001690).

Mr. Durrance rated Sale 6/A-2 as inferior to Mission Valley because Sale 6/A-2 was contracted

in mid-2003, when market conditions were less favorable, while Mr. Underwood did not make

any adjustments for time because he used the closing date of August 2004, not the contract date.

DX 50 (US-BB001691). In not making an adjustment to Sale 6/A-2 when it should have

received a 1.5% adjustment for each month between the contract date and April 2004, Mr.

Underwood undervalued Mission Valley. Mr. Durrance’s approach is more accurate because the

price of Sale 6/A-2 was set when the sale was contracted -- in 2003 -- and the price reflects the

market conditions at that time -- not the April 2004 date of valuation.

Similarly, Mr. Underwood adjusted the prices of Sale 3/A-3 and Sale 4/A-4 by -9% and -

11%, respectively, because the sales closed after the date of valuation. DX 50 (US-BB001690).

However, these sales were contracted just before or around the date of the taking, and Mr.

Durrance found similar conditions as the subject property. PX 24B (BB-PLTF-11838). In

adjusting the prices of Sale 3/A-3 and Sale 4/A-4 when no adjustment was warranted, Mr.

Underwood improperly inflated the values of the comparison properties. Mr. Durrance’s

approach, using the contract date, better reflects the realities of the market and more accurately

valued Mission Valley.

The appraisers also disagreed about how some of the properties compared in terms of

land use regulations. Mr. Durrance’s analysis addressed three factors related to land use

regulations: zoning/future land use, easements/encumbrances, and environmental lands. Mr.

Underwood assessed the properties in terms of “land use regulations,” which did not provide the

same degree of precision. For instance, Mr. Underwood did not make any adjustments to Sale

6/A-2 to reflect advantages or disadvantages with respect to land use regulations because

Mission Valley and Sale 6/A-2 had “similar zoning and land use designations.” DX 50 (US-

BB001693). Mr. Durrance agreed that the properties were zoned similarly, but rated Sale 6/A-2

as slightly inferior in terms of environmental lands because the property contained 10% more

environmental lands than the subject property. Mr. Durrance rated Sale 6/A-2 as inferior for

easements/encumbrances because Sale 6/A-2 was encumbered by an overhead power

transmission line, had a mesic hammock, and featured a creek -- all of which limited potential

development. PX 24B (BB-PLTF-11838). Similarly, Mr. Durrance determined that Sale 5/A-1

was inferior with respect to environmental lands because 20 to 25% of the property consisted of

environmentally sensitive lands, limiting potential development. PX 24B (BB-PLTF-11836 to

11837). There is no indication in the record that Mr. Underwood considered these factors, and

his failure to consider these factors led him to inflate the values of the comparison properties and

undervalue Mission Valley.

Mr. Durrance more accurately accounted for market conditions and provided more detail

and analysis concerning land use regulations. As such, the Court adopts $175,000 per acre as the

“before value” of Mission Valley.

43

Just Compensation for Mission Valley

Plaintiffs seek $725,200 in damages for the taking as it relates to Mission Valley,

representing $413,400 for the 2.386-acre area encumbered by the corridor and $311,800 for the

cost of buffering land adjacent to the trail.

To arrive at $413,400 for the land encumbered by the easement, Mr. Durrance first

determined that the taking resulted in a loss of 99% of Plaintiffs’ rights in the fee interest, and

Mr. Underwood agreed. Tr. 1500. Because Mr. Durrance appraised Mission Valley at $175,000

per acre before the taking, the loss of 99% of value of the 2.386 acres was $413,400 (2.386 acres

x $175,000 x 0.99).

A 25-foot wide buffer measuring 2,078.36 lineal feet, the length of the corridor on

Mission Valley, would cost $139,250.12. PX 24B (BB-PLTF-11851); Tr. 384-85. Mr. Durrance

assumed that buffering would be needed along the entire length of the corridor because he did

not identify any areas with natural buffering.

Defendant argues just compensation should be limited to the land encumbered by the

easement because the trail did not affect the property’s fair market value. As discussed above,

the Legacy Trail negatively affected the property values of adjacent land. Plaintiffs established

that installing a 25-foot buffer at $67 per lineal foot would mitigate the damage from the trail,

and is a reasonable method of quantifying Plaintiffs’ severance damages. Accordingly, Plaintiffs

are awarded $413,374.50 for the land taken and $139,250.12 in severance damages for a total of

$552,624.62, as just compensation relating to Mission Valley.

Stoneybrook

Plaintiff Stoneybrook Golf & Country Club of Sarasota, Inc. (“Stoneybrook”), owns a

parcel of land which was occupied by a golf course, country club, and homes on the date of the

taking. The property was zoned residential single-family-2 in 2004, and was within the Palmer

Ranch DRI. Tr. 805. The land underlying the trail corridor is 4.322 acres.

Stoneybrook was built pursuant to a rezoning petition, with an ordinance, Ordinance 89-

27, and a resolution, Resolution No. R89-131, approving the development as a special exception

in 1989. Tr. 1176; DX 27, DX 28. Sarasota County approved plans to build a golf course and up

to 1,870 residential units. The declaration of covenants, conditions, and restrictions

(“Covenants”) for Stoneybrook designated open space land for a golf course and stated that the

land would remain a golf course for at least 99 years. DX 29 (US-RB006630). Additionally,

Section 4 of Resolution No. R89-131 provided that land utilized for open space would be

restricted by appropriate legal instruments as open space perpetually or for a period of not less

than 99 years. DX 28 (US-RB006589). The Covenants also stated that all of the provisions in

the Covenants would be in effect for 99 years, but were subject to amendment by at least two-

thirds of the voting interests, or members of the homeowners’ association, present at a vote. DX

29 (US-RB006643 to 006644).

Plaintiffs’ Expert’s Valuation of Stoneybrook

Mr. Durrance determined that the highest and best use of Stoneybrook was residential

development based on the property’s future land use designation, its zoning district, and its

44

smaller than Stoneybrook. Id. Sale 2 was similar to Stoneybrook for zoning because like

Stoneybrook, moderate-density residential development was permitted. Id. Sale 2 had less

environmental lands than Stoneybrook and was therefore superior. Id. Lastly, Sale 2 was similar

to Stoneybook with respect to easements and encumbrances because neither property had any

significant easements or encumbrances. Id.

Mr. Durrance found that Sale 3 was superior to Stoneybrook for one factor, slightly

superior for two factors, and slightly inferior for three factors. He rated Sale 3 superior because

it had a smaller percentage of environmental lands. PX 25B (BB-PLTF-13166). Mr. Durrance

deemed Sale 3 slightly superior for size and zoning because it was substantially smaller than

Stoneybrook and because medium-density residential development was allowed on Sale 3. PX

25B (BB-PLTF-13165 to 13166). Mr. Durrance determined Sale 3 was slightly inferior for three

characteristics: market conditions, location, and easements/encumbrances. PX 25B (BB-PLTF-

13166). Mr. Durrance found Sale 3 sold under slightly inferior market conditions because its

sale was contracted in September 2003 -- a time when demand and prices were lower. PX 25B

(BB-PLTF-131968, BB-PLTF-13195). However, a $1,891,500 contract assignment fee lessened

the extent of the delay’s impact. Mr. Durrance found Sale 3 was slightly inferior for location

because it was adjacent to the Palmer Ranch DRI, not within the DRI as Stoneybrook was. PX

25B (BB-PLTF-13166, BB-PLTF-13168). Finally, he assessed Sale 3 as slightly inferior for

easements/encumbrances because it was encumbered with a perpetual mitigation easement. PX

25B (BB-PLTF-13169).

Mr. Durrance found Sale 4 was superior to Stoneybrook with respect to environmental

lands because Stoneybrook had 20 to 25% more environmental lands. PX 25B (BB-PLTF-

13165). Mr. Durrance rated Sale 4 as inferior for market conditions because its sale was

contracted approximately one year before the taking occurred, when market conditions were less

favorable. PX 25B (BB-PLTF-13166, BB-PLTF-13168). He found Sale 4 to be similar for

location and size because it was located within the Palmer Ranch DRI and was only four acres

larger than Stoneybrook. PX 25B (BB-PLTF-13166, BB-PLTF-13168). Mr. Durrance rated

Sale 4 slightly inferior in terms of zoning/future land use designation because Sale 4 needed to

be rezoned to reach the densities allowed on Stoneybrook. Mr. Durrance found that Sale 4 was

inferior with respect to easements/encumbrances because transmission power lines, a mesic

hammock, and a creek encumbered the property, which constrained potential development. PX

25B (BB-PLTF-13169). Overall, Mr. Durrance rated Sale 4 as inferior to Stoneybrook.

In Mr. Durrance’s view, Sale 5 was slightly superior to Stoneybrook with respect to one

factor, similar for five factors, and inferior for one factor. PX 25B (BB-PLTF-13166). He rated

Sale 5 slightly superior for size because it was more than 150 acres smaller than Stoneybrook

and similar with respect to market conditions because it sold within three months of the taking.

PX 25B (BB-PLTF-13165 to 13166). Sale 5 was similar to Stoneybrook in terms of zoning

because both properties were designated for moderate-density residential development. PX 25B

(BB-PLTF-13168). Stoneybrook and Sale 5 were similar for environmental lands and

easements/encumbrances because they contained approximately the same amount of

environmental lands and neither had any easements or encumbrances that affected potential

development. PX 25B (BB-PLTF-13169). Ultimately, Mr. Durrance appraised Sale 5 as

superior to Stoneybrook.

47

all, he adjusted the price of Sale A-1 by -15%, for an adjusted price of $180,838 per acre. DX 53

(US-BB003782).

Mr. Underwood then compared Sale A-2 with Stoneybrook. He did not make any

adjustments for location because both properties were within the Palmer Ranch DRI. DX 53

(US-BB003784). He increased the price of Sale A-2 by 15% pursuant to the large-lot adjustment

because it was almost 200 acres. DX 53 (US-BB003784 to 003785). Mr. Underwood did not

make any adjustments for land use regulations because the properties were zoned similarly and

had similar future land use designations. DX 53 (US-BB003786). After considering all of the

factors, Mr. Underwood adjusted Sale A-2 by 15%, for an adjusted price of $161,452 per acre.

DX 53 (US-BB003783).

For Sale A-3, Mr. Underwood began with the time-adjusted price of $236,338 per acre,

and did not make any adjustments for location, as Sale A-3 and Stoneybrook were both in the

Palmer Ranch DRI. DX 53 (US-BB003782 to 003784). Mr. Underwood applied a -20%

adjustment because Sale A-3 was 100 acres smaller than Stoneybrook. Lastly, he applied a

negative five percent adjustment for land use regulations because the sale of Sale A-3 was

contingent on rezoning for denser development. DX 53 (US-BB003786). After adjusting for

time by negative nine percent, Mr. Underwood adjusted the sales price of Sale A-3 by an

additional -25% to reflect these differences, resulting in an adjusted price of $177,254 per acre.

DX 53 (US-BB003783).

For Sale A-4, Mr. Underwood began with the time-adjusted price of $183,213 per acre,

and because Sale A-4 was located near Sale A-1, a less desirable area, he applied a 10%

adjustment. DX 53 (US-BB003784 to 003785). Because Sale A-4 was almost 100 acres smaller

than Stoneybrook, following his large-lot adjustment theory, Mr. Underwood applied a -20%

adjustment. DX 53 (US-BB003783 to 003784). He did not make any adjustments for land use

regulations because the zoning and land use designations for Sale A-4 were similar to those of

Stoneybrook. DX 53 (US-BB003786). After adjusting by -11% for time, Mr. Underwood

adjusted Sale A-4 by -10%, resulting in a final adjusted price of $164,892 per acre. DX 53 (US-

BB003782 to 003783).

Finally, Mr. Underwood compared Stoneybrook to Sale A-13, beginning with its time-

adjusted price. He applied a 20% adjustment for location because it was next to a mobile home

development and southeast of major roads, a less desirable location than Stoneybrook. DX 53

(US-BB003784). He made a 15% adjustment for size because Sale A-13 was 221.77 acres,

almost 100 acres larger than Stoneybrook. Mr. Underwood also made a -10% adjustment for

land use regulations because the contract for Sale A-13 was contingent upon rezoning to a

mixed-use planned development with multifamily housing. DX 53 (US-BB003786). The non-

time related adjustments for Sale A-13 totaled 25%, resulting in a final adjusted price of $95,625.

DX 53 (US-BB003782 to 003783).

Mr. Underwood concluded Sale A-2, which sold for an adjusted price of $161,452 per

acre, was the most comparable to Stoneybrook, while Sales A-1 and A-13 were the least similar.

DX 53 (US-BB003786). Based on this analysis, Mr. Underwood appraised Stoneybrook at

$165,000 per acre before the taking without development restrictions. Tr. 1529; DX 53 (US-

BB003786).

50

Mr. Underwood then appraised Stoneybrook with the assumption that it had no other

potential uses than as a golf course. He imposed this restriction because the zoning ordinance

that approved the development did not allocate any residential density to the golf course. Tr.

1526-27. To value Stoneybrook as a golf course, Mr. Underwood utilized the same paired

analysis featuring noneconomic remainders that he created as part of the Mission Valley

appraisal, which provided that a property without development potential was worth 15% of the

value of the same property with developmental potential. DX 53 (US-BB003787 to 003788).

Accordingly, he appraised Stoneybrook at $24,800 per acre. Tr. 1530; DX 53 (US-BB003788 to

003789).

What Is the Proper “Before Value” of Stoneybrook?

The parties dispute whether Stoneybrook was subject to a 99-year open space

requirement. The 99-year open space restriction is set forth in the resolution granting the petition

for a special exception and documented in the Covenants recorded with the County in 1994. DX

28 (US-RB006589), DX 29 (US-RB006630). Mr. Durrance acknowledged the use restriction in

his appraisal report but determined that it had no effect, stating:

The property is subject to the covenants, conditions, and restrictions for the

Stoneybrook Golf and Country Club of Sarasota and identified as Community

Common Areas and Club Common Areas. The private restrictions, imposed on

the property when it was developed, can be removed by a majority vote of the

members.

PX 25B (BB-PLTF-13165). The removal mechanism Mr. Durrance referenced is contained in

the amendments provision of the Covenants. DX 29 (US-RB006643 to 006644).

Mr. Bass, Defendant’s expert in land use planning, opined that Stoneybrook could not be

used for residential development, testifying:

[T]he density’s already been transferred off the golf course, off the common area.

When in rezoning process, you’re coming with a special exception to put a golf

course in, open space preservation. You’re clustering your density over to

development pots, so there is no density on the golf course at present, as of the

date the ordinance was adopted. That’s why you do a clustering or [planned unit

development]. You move the density around on site. Take smaller lots.

Tr. 1175. Mr. Bass disagreed with Ms. Allred’s conclusion that the County would ignore the

Covenants, stating: “I believe they would not ignore it because they’re the ones who required it.”

Tr. 1194. He opined that if a rezoning petition made it through the review process, the Board of

County Commissioners would deny it. Tr. 1194-95. However, Mr. Bass acknowledged that

Stoneybrook could be rezoned if there were unified control and ownership over the property. Tr.

1289-92. Specifically, if the residents who owned land within the Stoneybrook development

agreed to develop the golf course, they could file a corrected deed and rezoning petition, and

proceed through the rezoning process.

Stoneybrook should be appraised without the use restriction. The fact that Stoneybrook

was subject to use restrictions in April 2004, does not limit its highest and best use if Plaintiffs

can show that a more valuable use was physically possible, appropriately supported, and

51

financially feasible. McCandless v. United States, 298 U.S. 340, 345 (1936); Loveladies Harbor

Inc. v. United States, 21 Cl. Ct. 153, 156 (1990). Plaintiffs satisfied this burden here. First, Mr.

Bass testified that Stoneybrook could be rezoned assuming there was unified control and

ownership of the property, as the unit rule requires. Tr. 1288-91. Similarly, under the unit rule,

the 99-year use restriction in the Covenants could be removed because the Covenants were

subject to amendment, and the unit rule requires an appraiser to assume unified control and

ownership. See DX 29 (US-RB006643 to 006644). Second, according to Ms. Allred’s credible

testimony, Sarasota County would not consider open space restrictions in the context of rezoning

unless they were related to habitat preservation. Tr. 780. The restriction here preserves open

space for a golf course -- not habitat preservation. Plaintiffs have put forth sufficient evidence

to show that rezoning for residential development was reasonably probable, because such a

proposed change comports with this property’s future land use designation under Sarasota

County’s comprehensive plan. PX 11, PX 25B (BB-PLTF 13164).

Even without the use restriction, the parties do not agree on the value of Stoneybrook

before the taking. Mr. Durrance appraised the property at $200,000 per acre, while Mr.

Underwood appraised it at $165,000 per acre. Messrs. Durrance and Underwood used two of the

same properties in their analyses: Sale 4/A-2 and Sale 3/A-3. While the appraisers agreed about

how the properties compared to Stoneybrook overall -- that Sale A-3 was superior and Sale 4/A-

2 was inferior -- they disagreed about how the properties compared with respect to market

conditions and land use regulations. Specifically, for market conditions, Mr. Underwood did not

make any time-based adjustments to Sale 4/A-2 because the sale closed in August 2004. In

contrast, Mr. Durrance rated Sale 4/A-2 as inferior to Stoneybrook because its sale was

contracted a year before the date of valuation. Compare DX 53 (US-BB003782), with PX 25B

(BB-PLTF-13165 to 13166). Similarly, Mr. Underwood applied a negative nine percent

adjustment to Sale 3/A-3 because the sale closed in October 2004, indicating it sold during

superior market conditions, while Mr. Durrance rated the same property slightly inferior because

its sale was contracted in September 2003. Compare DX 53 (US-BB003782), with PX 25B (BB-

PLTF-13165 to 13166). Again, Mr. Durrance based his analysis on the dates when Sales 3/A-3

and 4/A-2 were contracted, while Mr. Underwood used the closing dates, and inflated the value

of Sale 3/A-3. Mr. Durrance’s approach better reflects the market conditions when the prices for

the properties were determined, and is therefore more accurate and persuasive.

The experts also approached land use differently. Mr. Durrance addressed three types of

restrictions: zoning/future land use designation, environmental lands, and

easements/encumbrances. Mr. Underwood utilized one category, zoning/future land use, and did

not mention a 2.3-acre perpetual mitigation easement that limited development on Sale 3/A-3,

while Mr. Durrance rated Sale 3 as slightly inferior for easements/encumbrances because of the

mitigation easement. Mr. Underwood made a negative five percent adjustment for land use

regulations, indicating Sale 3/A-3 was superior to Stoneybrook for that factor. Moreover, Mr.

Underwood did not acknowledge the fact that Sale 4/A-2 featured a creek, mesic hammock, and

overhead transmission power lines, while Mr. Durrance rated the property as inferior because of

those development constraints. Mr. Durrance’s more thorough consideration of land use better

reflected the “before value” of Stoneybrook, while Mr. Underwood inflated the value of Sales

3/A-3 and 4/A-2. Mr. Durrance appraised Stoneybrook at $200,000 per acre, and the Court

adopts this as the “before value” of the property.

52

Just Compensation for Stoneybrook

After the taking, 4.322 acres of Stoneybrook are occupied by the trail corridor. The

corridor runs along the eastern side of the property for 2,017.62 lineal feet. Plaintiffs seek

$1,483,900 in compensation in relation to Stoneybrook -- $860,500 for the land encumbered by

the easement, $302,600 in severance damages, and $320,800 for “conversion land damages.”

Defendant argues just compensation should be limited to the land encumbered by the easement

and would limit just compensation to $106,100 per acre, based on the assumption that

Stoneybrook did not have development potential.

As discussed above, Stoneybrook should be appraised with development potential, at

$200,000 per acre. As such, because 4.322 acres of Stoneybrook are encumbered by the rail-trail

corridor, Plaintiffs are awarded $855,756 for the land encumbered.

Plaintiffs are also entitled to compensation for the cost of installing a 50-foot buffer for

the 2,017.62 lineal feet of land adjacent to the corridor. As discussed above, because

Stoneybrook is in the Palmer Ranch DRI, which required a 50-foot buffer, adding such a buffer

on the land adjacent to the corridor at $115 per lineal foot is a reasonable means of mitigating the

negative effect of the trail on the value of the Stoneybrook remainder. Accordingly, Plaintiffs

are entitled to $232,026.30 in severance damages representing the cost of buffering.

Plaintiffs seek “conversion land damages” for Stoneybrook but do not seek this category

of damages for the other 12 properties. These damages represent the value of an additional 35

feet of land adjacent to the trail necessary to create a 50-foot wide buffer. Mr. Durrance

included conversion damages for Stoneybrook because after the taking, a developer would need

to set aside an additional 35 feet of land for a setback and buffering along the trail to comply

with the Palmer Ranch Development Code, which required a 50-foot buffer, and that land would

have been rendered unusable for other purposes. Tr. 391-93. He provided the following

explanation:

[P]er the Palmer Ranch Development Code, the minimum required buffer width

along the new rail/trail corridor is 50 feet, which is an increase of 35 feet from the

Before condition and results in 1.62 acres of developable residential lands being

converted to buffer area. The use of this area has essentially been acquired as a

result of the rail-trail easement. In other words, it is a linear strip of land along

the perimeter of the property that is essentially “set aside” for other uses and

effectively becomes the new boundary of the property.

PX 25B (BB-PLTF-13183). Mr. Durrance continued:

The manner in which that was calculated is in the before condition, the market

says 10 to 20 feet. I used 15 feet, a 15-foot setback from the perimeter as the

typical market before situation, and I used 50 feet in the after, so you have an

increased setback or distance, if you will, and that 35 feet of additional land area

as a result of the new easement times the length comes out to 1.62 acres that I’ve

put there in the chart, and you can see the calculations there, $320,800. It

essentially eliminates some land area is what it does.

53

Tr. 391-93. In sum, Mr. Durrance determined that a 35-foot wide strip of land adjacent to the

trail would need to be converted to a buffer to comply with the Palmer Ranch Development

Code, and Plaintiffs seek damages of $320,800 representing the value of the land underlying the

35-foot wide strip, because the buffered land could not be used for other purposes. Defendant

contends Plaintiffs are not entitled to recover conversion damages because the Palmer Ranch

Development Code does not have the force of law.

Plaintiffs’ claim for conversion damages presents an issue of first impression. Plaintiffs

include their claim for conversion land damages under the rubric of severance damages. When a

partial taking occurs, a plaintiff may recover severance damages to compensate for the

diminution in the value of the remainder caused by the taking. See United States v. Grizzard,

219 U.S. 180, 184 (1911) (awarding severance damages because plaintiff proved that the partial

taking caused plaintiff to lose access to a village market, church, and school, which lessened the

remainder’s value); United States v. Welch, 217 U.S. 333, 338-39 (1910) (awarding severance

damages because plaintiff proved that the partial taking caused plaintiff to lose access to a right-

of-way, which decreased the value of the remainder); Georgia-Pac. Corp. v. United States, 226

Ct. Cl. 95, 123-24 (1980) (per curiam) (awarding severance damages because plaintiff proved

that a partial taking of forest land negatively impacted the manner in which the remainder could

be logged, decreasing the value of the remainder).

In order to recover severance damages, Plaintiffs must demonstrate that the taking caused

a diminution in the value of the remainder. See Grizzard, 219 U.S. at 184; Welch, 217 U.S. at

338-39; Georgia-Pac. Corp., 226 Ct. Cl. at 123-24. Plaintiffs have not met that burden here.

While the Legacy Trail itself caused a diminution in value to the remainder by exposing

landowners to noise, trespass, and nuisance, Plaintiffs have not established that mitigation of this

harm in the form of an additional 35-foot buffer would equate to a diminution in the value of the

remainder. In essence, Plaintiffs are asking the Court to find that the 35-foot buffered strip is

valueless. But that is not the case. Plaintiffs still own the land under the 35-foot buffer, and they

have not demonstrated how the buffer adversely affected the value of either the land underneath

it or the valuation of the remainder. In contrast, there is evidence that in Sarasota County

buffering has a recognized value. Under the County Code, buffered areas qualify as open space,

and Sarasota County has an open space requirement of 30% for urban planned unit

developments, such as Stoneybrook. Tr. 778-80.

This is not a situation like Gizzard where the taking eliminated access to the remainder,

causing a depreciation in the value of the remainder. Nor is this akin to Welch where the taking

caused plaintiff to lose the only practical outlet from plaintiff’s farm to the county road, causing

a diminution in the value of the remainder. Finally, Plaintiffs’ generalized assertion that the 35-

foot buffer prevented them from otherwise using their land, does not come close to the detailed

proof of economic loss to the remainder shown by the plaintiff in Georgia-Pacific. There,

plaintiff proved that defendant’s taking of forest land adversely affected the manner in which the

remainder could be logged, which lowered the value of the remainder, by demonstrating the

manner the timber could have been logged before the partial taking, the manner the timber had to

be logged after the taking, the total quantity of timber that could be logged on the remainder, and

the economic consequences of this change in logging manner. 226 Ct. Cl. at 123-25.

54

The Court awards Plaintiffs $1,087,782.30 in damages with respect to Stoneybrook,

representing $855,756 for the land encumbered by the easement and $232,026.30 in severance

damages for the cost of installing a 50-foot wide buffer.

TPC-Prestancia

Plaintiff Tournament Players Club at Prestancia, Inc. owns TPC-Prestancia (“TPC”), a

tract of land with an 18-hole golf course, a clubhouse, and related facilities.29 McIntosh Road

runs north-south along the eastern border, separates TPC from the rail-trail corridor, and runs

along the McIntosh Road right-of-way. PX 26C. The parties agreed that land underlying the

rail-trail corridor measured 3.903 acres.

TPC-Prestancia’s golf course was built in the mid-1980s, after Sarasota County approved

a 986-unit residential development adjacent to the course. DX 30. TPC was developed pursuant

to an incremental development order, allowing a development to be added to an existing DRI.

Tr. 1200-01. Exhibit B to the incremental development order, Resolution 84-419, stated:

The Bay Venture Corporation, as committed in the [Application for Incremental

Development Approval], shall provide 146.5 acres of parks and green space, a

106.3 acre golf course and club, and 65 acres of lakes/ponds. All recreational

facilities shall be maintained via membership fees, mandatory master home-

owners association, sub-home owner/condo associations, and other similar

maintenance and management operations.

DX 30 (BB-PLTF-15879).30 Section 4.1 of the resolution stated that all conditions, restrictions,

requirements, commitments, and impact mitigating provisions in the resolution were enforceable

by Sarasota County by an action at law or equity. DX 30 (BB-PLTF-15863).

The Covenants for TPC, which were recorded in 1986, provided that land designated on

the property plan as a golf club would only be used for “Golf Course Purposes.” DX 31 (BB-

PLTF-15805, BB-PLTF-15809 to 15810). The Covenants further provided that the provisions

would remain in effect for 99 years. DX 31 (BB-PLTF-15830 to 15831). However, the

Covenants were subject to amendment by a vote of two-thirds of all members of the

homeowners’ association. DX 31 (BB-PLTF-15831).

Plaintiffs’ Expert’s Valuation of TPC-Prestancia

Plaintiffs’ expert appraised TPC by comparing it to six other nearby properties, with

residential development as the highest and best use. The six properties that Mr. Durrance used to

appraise TPC were the same properties he used to appraise Stoneybrook. The following table

29

An aerial image of TPC is in Appendix C.

30

Bay Venture Corpo

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