# Childers v. United States

> United States Court of Federal Claims · April 2, 2014

URL: https://www.frixlaw.com/law-library/cases/2673304

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** April 2, 2014
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Mary Ellen Coster Williams
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2673304

## How later opinions describe it (automated extraction)

- stating that a landowner must show a reasonable probability that a regulatory restriction would be removed to value a property for a use that would otherwise be precluded

## Opinion text

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.
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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).
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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 restric

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2673304. Public record. Not legal advice.