Childers v. United States

OPINION AND ORDER

WILLIAMS, Judge.

Contents

Findings of Fact... 495

Discussion... 496

Jurisdiction... 496

Legal Standards Governing Just Compensation. .. 496

*493 Appraisals of the Subject Properties... 498

The Experts’ Methodologies... 498

Quantitative Versus Qualitative Comparable Sales Analysis... 498

Appraisal Principles... 499

The Propriety of Applying a Large-Lot Discount... 499

The Propriety of Considering Use Restrictions ... 501

The Efficacy of a Private Deed Restriction ... 503

Public Use Restrictions and the Ability to Rezone Property in Sarasota County in 2004... 505

The Taking’s Effect on the Fair Market Value of Properties Adjacent to the Trail... 509

Plaintiffs’ Paired Sales Analysis... 509

Plaintiffs’ Anecdotal Evidence... 509

Plaintiffs’ Evidence on Potential Future

Uses of the Legacy Trail... 510

Defendant’s Paired Sales Analysis... 510

Defendant’s Trail Impact Studies... 510

Defendant’s Anecdotal Evidence... 511

Defendant’s Evidence on Future Uses of the Legacy Trail... 511

The Court’s Assessment of the Experts’ Opinions on Whether the Legacy Trail Negatively Impacted Property Values... 512

The Diminution in Value to the Remainder Due to the Trail... 513

The Width of the Buffer... 513

The Cost of Buffering... 515

Just Compensation for Plaintiffs’ Individual Properties... 517

Mission Valley... 517

Plaintiffs’ Expert’s Valuation of Mission Valley... 517

Defendant’s Expert’s Valuation of Mission Valley... 520

What Is the Proper “Before Value” of Mission Valley?... 523

Just Compensation for Mission Valley... 524

Stoneybrook... 524

Plaintiffs’ Expert’s Valuation of Stoney-brook. .. 525

Defendant’s Expert’s Valuation of Stoney-brook... 527

What Is the Proper “Before Value” of Stoneybrook?... 530

Just Compensation for Stoneybrook ... 531

TPC-Prestaneia... 533

Plaintiffs’ Expert’s Valuation of TPC-Prestancia... 534

Defendant’s Expert’s Valuation of TPCPrestaneia ... 537

What Is the Proper “Before Value” of TPC-Prestaneia?... 540

Just Compensation for TPC-Prestaneia ... 541

Arielle... 541

Plaintiffs’ Expert’s Valuation of Arielle... 542

Defendant’s Expert’s Valuation of Arielle ... 546

What Is the Proper “Before Value” of Arielle?... 549

Just Compensation for Arielle... 551 JMC... 551

What Is the Proper “Before Value” of JMC?... 552

Just Compensation for JMC... 552

Palmer Ranch ... 553

Plaintiffs’ Expert’s Valuation of Palmer Ranch... 554

Defendant’s Expert’s Valuation of Palmer Ranch... 558

What Is the Proper “Before Value” of Palmer Ranch?... 560

Just Compensation for Palmer Ranch... 561

Pine Ranch East... 564

Plaintiffs’ Expert’s Valuation of Pine Ranch East... 564

Defendant’s Expert’s Valuation of Pine Ranch East... 568

What Is the Proper “Before Value” of Pine Ranch East?... 571

*494 Just Compensation for Pine Ranch East... 572

Calusa Lakes... 572

Plaintiffs’ Expert’s Valuation of Calusa Lakes... 573

Defendant’s Expert’s Valuation of Calusa Lakes... 576

What Is the Proper “Before Value” of Calusa Lakes?... 579 Just Compensation for Calusa Lakes... 580

The Childers Property... 581

What Is the Proper “Before Value” of the Childers Property?... 581

Just Compensation for the Childers Property ... 581

The Marlin Property... 581

What Is the Proper “Before Value” of the Marlin Property?... 581

Just Compensation for the Marlin Property. .. 582

The Davids Property... 582

Plaintiffs’ Expert’s Valuation of the Davids Property... 582

Defendant’s Expert’s Valuation of the Davids Property... 585

What Is the Proper “Before Value” of the Davids Property?... 588

Just Compensation for the Davids Property ... 588

The Mirman Property... 589

Plaintiffs’ Expert’s Valuation of the Mir-man Property... 589

Defendant’s Expert’s Valuation of the Mir-man Property... 592

What Is the Proper “Before Value” of the Mirman Property?... 594

Just Compensation for the Mirman Property. .. 595

The Glueck Property... 595

What Is the Proper “Before Value” of the Glueck Property?... 596

Motion to Strike Expert Testimony Regarding Buffering on the Glueck Property. .. 596

Just Compensation for the Glueck Property. .. 599

Conclusion... 600

Appendix A: Northern Segment of Palmer Ranch DRI... 602

Appendix B: Southern Segment of Palmer Ranch DRI ... 603

Appendix C: Aerial View of TPC ... 604

Appendix D: Aerial View of Arielle ... 605

Appendix E: Arielle Conceptual Development Plan ... 606

Appendix F: Plat for Arielle ... 607

Appendix G: Aerial View of JMC ... 608

Appendix H: Aerial View of Palmer Ranch ... 609

Appendix I: Aerial View of Pine Ranch East ... 610

Appendix J: Aerial View of Calusa Lakes ... 611

Appendix K: Aerial View of the Glueck Property ... 612

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 *495 $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 Fact

2

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 (BBPLTF-12332).

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-PLTF12340); 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 *496 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 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), modei’ate-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 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 , 110 S.Ct. 914 , 108 L.Ed.2d 1 (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 *497 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 , 393 F.2d 786 (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 , 54 S.Ct. 704 , 78 L.Ed. 1236 (1934); see also Kimball Laundry Co. v. United States, 338 U.S. 1, 20 , 69 S.Ct. 1434 , 93 L.Ed. 1765 (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 , 81 S.Ct. 784 , 5 L.Ed.2d 838 (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 , 63 S.Ct. 276 , 87 L.Ed. 336 (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 , 31 S.Ct. 162 , 55 L.Ed. 165 (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 , 620 F.2d 812 (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 , 67 S.Ct. 1382 , 91 L.Ed. 1789 (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 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).

*498

Appraisals of the Subject Properties

The pai’ties 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 “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 troy to separate those attributes out and give a marginal *499 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. Durranee’s qualitative analysis was more persuasive, because he provided a more compelling analysis regarding how the pertinent features 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. Durranee 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 Appraised Adjustment Applied to Comparable 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 (USBB001690). Based on these properties, Mi’. Undeiwood 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.

*500 Mr. Underwood acknowledged that southern Sarasota County and Manatee County were 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-aere 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 (USBB001838).

Plaintiffs’ experts disagreed with Mr. Underwood’s size adjustment. Mr. Durranee 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. Durranee 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. See e.g., N. Paiute Nation, 183 Ct.Cl. at 346 , 393 F.2d 786 (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 , 54 S.Ct. 704 (“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 *501 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. Durranee 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. Undenvood 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. Undemood 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. Undemood 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; DX3;

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-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 (USPR000151 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. Undemood 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.

*502 Mr. Underwood acknowledged that originally he did not consider use restrictions because he followed the unit rale, stating:

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

[Tjhe 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 rale, 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 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 rale 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 appui’tenant 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 rale. 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 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). *503 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 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. Pis.’ 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 *504 restriction that limited the development of the property to only a golf course, how would that have [a]ffeeted 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 ease about the Mission Valley Country Club, is that correct?

A Yes.

Q And there was testimony about an original deed restriction in 1969. Do you recall that testimony?

A Ido.

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 Ewing family estate or a landowner with property abutting the golf course could have sued to enforce the restric *505 tion 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 rale 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. 802-04,1042^3,1075-78.

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:

*506 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 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 (USRB006589), 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).

*507 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?

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?

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 re *508 striction. 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 , 56 S.Ct. 764 , 80 L.Ed. 1205 (1936) (citing Olson, 292 U.S. at 255-56 , 54 S.Ct. 704 ); 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 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 Coimty 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 (USBB003629) (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 (USBB001531) (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.

*509

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, was due to the railroad corridor. PX 13, PX 15B (BBPLTF-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 eorridor, 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 *510 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: “[aesthetically 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.

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 *511 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.

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 (USRBL000001, 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 (U.S. 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 (U.S. Ex. 000004 to 000006).

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 *512 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 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. Durranee’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. Durranee’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 *513 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.

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-PLTF49785). 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.

*514 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 righhof-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-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 (BBPLTF-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 (BBPLTF-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 *515 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.

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. Durranee, 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 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 “eost-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 *516 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.1983); United States v. Dickinson, 152 F.2d 865, 870 (4th Cir.1946), aff'd, 331 U.S. 745 , 67 S.Ct. 1382 , 91 L.Ed. 1789 (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

Property Original Acreage Remainder Plaintiffs’ Claimed Value per Acre Diminution In Value of Remainder by 22% Severance Damages 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

Mirinan 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 Pis.’ 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’ 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 *517 awards cost-to-cure 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. severance damages

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

7/2/04 3/22/04 10/4/04 IÍ/1/04 7/28/04 8/30/04

.Mm $8.25 mil $2.7 mil S5.402 mil $5.3 mil $5.9 mi $28 mil.

V/-v 7” A -o'1 ’ 374.710 40 15,381 20.77 25.716 27.732 199.44

Price/Acre ^ $206.000 $176.000 $260.000 $206,000 $213,000 $140.000

. Sales--i «¿a Aim's Length Ami's Length Ann’s Length Aim’s Length Ann's Length Arm’s Length

(já^inancing Cash to seller Gash to seller Cadi to seller Cash to seller Cash to seller Cash to seller

Zoning/Future Land Use Entitlement 22 OUE-1/MDR R£-1/MDR Approved units available within DRI. R5F4/MDR Approved &rS7-uuit SFR subdivision RSF-4, RMF-2, PUD & MDRMB DR OUE-2/RSF-3 & MDR/OF FMF Approved for 75 SFR and 16,200 SF Office KMF-3/HDR Approved for 160-unit attached town-homes OUBLMDR Approved units available within Dll

Water/ sewer Water/ sewer Water/ sewer Water/ Sewer Water/ sewer Water/ sewer Water/ sewer

<5% 25-30% <5% <5% <5% 20-25% 0%

*518 'íffyx Subject, CptrifitgJ? --rZjÉá wi' - //'?/■ V : Sale 4 Safe'S--,- , ...(Satefi *- »®Sr-... /-

Ijé-Easements/ •' éfencumbrances Typical Typical Typical Peipetual Mitigation Easement Typical Typical South. Creek/Tra mmtssion Power Lines

^^ferbi ■^Conditions Mid-2004 , XXy:xxxyxy/yXXxX, ,yX'X//y -- Similar Sliglifly Inferior Slightly Inferior Similar Similar Inferior

/fioeatlón'Laurel/ Nokomis Superior Inferior Sliglifly Superior Slightly Superior Sliglifly Inferior Superior

Jlplf 174.716 Slightly Inferior Slightly Inferior Slightly Inferior Slightly Inferior Slightly Inferior Similar

-|Zbnirig/F»djrie' Entitlements/,'-. OUB-1/MDR Similar Superior Superior Superior Superior Similar

ITtilftfesV. Available-Water/ Sewer Similar Similar Similar Similar Similar Similar

Environmental ?v-Lands <5% Inferior Siiniiar Similar Similar Inferior Sliglifly Inferior

-Easements/ ¿-Ehcumbnmces Typical Similar Similar Slightly Inferior Similar Similar Inferior

Comparability -■Sligiiilf# - Supefloif , X/.X/y/yy fWtpuiar... Slightly, 'Superior' ^ii|iitir/§upei'io% Inferior

In his appraisal, Mr. Durrance used seven salient characteristics to compare each property to Mission Valley: market conditions, location, size, zoning/figure land use designation, utilities available, environmental lands, and easements/eneumbrances. He then gave each property an overall rating for comparability. He gave the properties most similar to Mission Valley the most weight in his appraisal.

Mr. Durrance evaluated Contract 1 as slightly superior to Mission Valley. PX 24B (BB-PLTF-11836 to 11837). Contract 1 sold in July 2004, three months after the date of *519 the taking. PX 24B (BB-PLTF-11836). Because Contract 1 was within the Palmer Ranch DRI, Mr. Durrance judged it as superior with respect to location. PX 24B (BBPLTF-11837). Contract 1. at 40 acres, was substantially smaller than Mission Valley, so Mi’. Durrance rated it as slightly 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 l’s land was designated as environmental lands, while Mission Valley had less than five percent. PX 24B (BB-PLTF11836). 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-PLTF11838 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-PLTF11836). Sale 4’s location was slightly superi- or 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 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 *520 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, BBPLTF-11840). Mr. Durranee 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. Durranee 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. Durranee appraised Sale 6 as inferior to Mission Valley. PX 24B (BB-PLTF11840). 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 (BBPLTF-11839).

Mr. Durranee ranked tlje 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. Durranee 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 properties used and the adjustments that Mr. Underwood made: 24

*521 A-l '' " 'MB M-; : M"§: MMiMy '. -'MA/'-7r//,/ ... W0$A;. MM-y/y’-Mk

Location '* 1851 Mission Valley Blvd. W side of Cattlemens Rd.Nof Richardson RcL E side of Honoré Ave. $ of Central Sarasota Pkwy E side of Honoré Ave. S of Clark M NWCof Cattlemens Rd.& Colonial Oaks Blvd. S side of SR 681E of US 41

Sale Puce WA $5.9 mil $28 mil ^IS $5.402 mil Adjusted $5.3 ini $19,959,100

Sale Date: 7/04 8/04 10/04 15/04 8/05

Conti of Sale Arm's Length Ann’s Length Aim’s Length Arm’s Length Aim’s Length

Properly'' . , Interest..... Fee Simple Fee Simple Fee Simple Fee Simple Fee Simple Fee Simple

Zoning/Lundl Use -L--.-; MM OÜE-l/MDR RMF-3/HDR OUE-1/MDR. 'OUE-l/MDR. ODE-2 & RSF-3/MDR& OFFMF RMB/MDR

Size (Ac) 175.165 27.732 199.44 20.80 25.746 221.77

Price/Acre $212,751 $140,393 $259,712 $205,857 $90,000

■xgv Financing 0% 0% 0% 0% 0%

Time 0% 0% -9% -11% -15%

Time- r ; Adjusted ; _Saiex Prjc'¿;4 $212.751 $140,393 $236,338 $183,213 $76,500

Location 0% -10% -10% 0% 10%

ProperiT - "f. Size ' ? -30% 5% -30% -30% 5%

Land Use Regulation . -5% 0% -5% 0% -10%

■'i-mmwíM 'W¡¡M ;A~i.

Total ' Acijnstment | -35% -5% -45% -30% 5%

éri¿||A^|f':

The first step in Mr. Underwood’s analysis was adjusting the comparable properties’ sale prices for the time of sale, finding that if the comparison property sold after the date of the taking, it sold under superior market conditions. To reflect this advantage, Mr. Underwood adjusted the price of sales that occurred after April 2004 downward by 1.5% per month so that the sale price better re- *522 fleeted the market conditions when the taking occurred—in April 2004. Similarly, Mr. Undeiwood adjusted the prices of comparable sales that occurred before April 2004 upward by 1.5% per month to reflect the fact that real estate prices were increasing in 2004. Tr. 1482-83: DX 50 (US-BB001691).

Mr. Underwood next analyzed each property and made adjustments for the factors other than time. He determined that Sale A-l was located in an area with older and smaller homes, similar to Mission Valley, and he did not make any adjustment for location. DX 50 (US-BB001692). Because Sale A-l was just under 28 acres, and Mission Valley was approximately 175 acres, he applied a 30% downward adjustment for size. Id. Mr. Underwood found that Sale A-l had a similar zoning designation as Mission Valley and did not require any adjustment. DX 50 (USBB001693). In all, lie adjusted the price of Sale A-l by -35%.

Mr. Underwood next compared Mission Valley to Sale A-2. He determined that Sale A-2 had a superior location because it was within the Palmer Ranch DRI. DX 50 (USBB001692). Because Sale A-2 was approximately 200 acres, 25 acres larger than Mission Valley, he applied a five percent adjustment for size. Id. Mr. Underwood did not make any adjustments with respect to land use regulations because Sale A-2 and Mission Valley were zoned similarly. DX 50 (US-BB001693). Mr. Underwood adjusted Sale A-2 by five percent, for an adjusted price of $133,373 per acre.

Mr. Underwood next considered Sale A-3. He appraised its location as superior to Mission Valley’s because it was located in the Palmer Ranch DRI and applied a -10% adjustment. DX 50 (US-BB001692). For size, because Mission Valley was approximately 175 aeres and A-3 was approximately 20 acres, Mr. Underwood applied a -30% adjustment. DX 50 (US-BB001690 to 001692). With respect to zoning, Mr. Underwood applied a negative five percent adjustment to Sale A-3 because the sale was contingent on rezoning the property to a higher density of seven dwelling units per acre. DX 50 (USBB001693). In all, he adjusted Sale A-3 by -45%, for an adjusted price of $129,986 per acre.

The fourth property in Mr. Underwood’s analysis of Mission Valley was Sale A-4. He did not make any location-based adjustment because Sale A-4 was located in areas with older and smaller homes, similar to that of Mission Valley. DX 50 (US-BB001692). Because Sale A4 was approximately 25 acres, or 150 acres smaller than Mission Valley, Mr. Underwood adjusted the price of Sale A-4 by -30%. DX 50 (US-BB001690, USBB001692). 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 A4 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 (USBB001690, 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 (USBB001693). 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 *523 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 non-economic 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 (USBB001695). 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 (USBB001696).

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

Plaintiffs’ expert appraised Mission Valley in the “before” condition, at $175,000 per acre, and Defendant’s expert appraised it at $20,300 per acre with a use restriction and $135,000 per acre without the restriction. As discussed above, the Court finds Mission Valley should be appraised without the deed restriction affecting valuation.

In their appraisals of Mission Valley at $175,000 per acre, and $135,000 per acre, Plaintiffs’ and Defendant’s experts used four of the same properties in their comparable sales analyses: Sale 5/A-l, Sale 6/A-2, Sale 3/A-3, and Sale 4/A-4. Mr. Durranee found that the market conditions for Sale 6/A-2 were inferior to those affecting Mission Valley, while Mr. Underwood did not make any time-based adjustment; indicating the properties had similar market conditions. Compare PX 24B (BB-PLTF-11836 to 11837), and DX 50 (US-BB001690). Mr. Durranee rated Sale 6/A-2 as inferior to Mission Valley because Sale 6/A-2 was contracted in mid-2003, when market conditions were less favorable, while Mr. Underwood did not make any adjustments for time because he used the closing date of August 2004, not the contract date. DX 50 (US-BB001691). In not making an adjustment to Sale 6/A-2 when it should have received a 1.5% adjustment for each month between the contract date and April 2004, Mr. Underwood undervalued Mission Valley. Mr. Durrance’s approach is more accurate because the price of Sale 6/A-2 was set when the sale was contracted—in 2003—and the price reflects the market conditions at that time—not the April 2004 date of valuation.

Similarly, Mr. Underwood adjusted the prices of Sale 3/A-3 and Sale 4/A-4 by -9% and—11 %, respectively, because the sales closed after the date of valuation. DX 50 (US-BB001690). However, these sales were contracted just before or around the date of the taking, and Mr. Durranee found similar conditions as the subject property. PX 24B (BB-PLTF-11838). In adjusting the prices of Sale 3/A-3 and Sale 4/A-4 when no adjustment was warranted, Mr. Underwood improperly inflated the values of the comparison properties. Mr. Durrance’s approach, using the contract date, better reflects the realities of the market and more accurately valued Mission Valley.

The appraisers also disagreed about how some of the properties compared in terms of land use regulations. Mr. Durranee’s analysis addressed three factors related to land use regulations: zoning/future land use, easements/encumbrances, and environmental lands. Mr. Underwood assessed the properties in terms of “land use regulations,” which did not provide the same degree of precision. For instance, Mr. Underwood did not make any adjustments to Sale 6/A-2 to reflect advantages or disadvantages with respect to land use regulations because Mission Valley and Sale 6/A-2 had “similar zoning and land *524 use designations.” DX 50 (US-BB001693). Mr. Durranee agreed that the properties were zoned similarly, but rated Sale 6/A-2 as slightly inferior in terms of environmental lands because the property contained 10% more environmental lands than the subject property. Mr. Durranee rated Sale 6/A-2 as inferior for easements/encumbranees because Sale 6/A-2 was encumbered by an overhead power transmission line, had a mesic hammock, and featured a creek—all of which limited potential development. PX 24B (BBPLTF-11838). Similarly, Mr. Durranee determined that Sale 5/A-l was inferior with respect to environmental lands because 20 to 25% of the property consisted of environmentally sensitive lands, limiting potential development. PX 24B (BB-PLTF-11836 to 11837). There is no indication in the record that Mr. Underwood considered these factors, and his failure to consider these factors led him to inflate the values of the comparison properties and undervalue Mission Valley.

Mr. Durranee more accurately accounted for market conditions and provided more detail and analysis concerning land use regulations. As such, the Court adopts $175,000 per acre as the “before value” of Mission Valley.

Just Compensation for Mission Valley

Plaintiffs seek $725,200 in damages for the taking as it relates to Mission Valley, representing $413,400 for the 2.386-acre area encumbered by the corridor and $311,800 for the cost of buffering land adjacent to the trail.

To arrive at $413,400 for the land encumbered by the easement, Mr. Durranee first determined that the taking resulted in a loss of 99% of Plaintiffs’ rights in the fee interest, and Mr. Underwood agreed. Tr. 1500. Because Mr. Durranee appraised Mission Valley at $175,000 per acre before the taking, the loss of 99% of value of the 2.386 acres was $413,400 (2.386 acres x $175,000 x 0.99).

A 25-foot wide buffer measuring 2,078.36 lineal feet, the length of the corridor on Mission Valley, would cost $139,250.12. PX 24B (BB-PLTF-11851); Tr. 384-85. Mr. Durranee assumed that buffering would be needed along the entire length of the corridor because he did not identify any areas with natural buffering.

Defendant argues just compensation should be limited to the land encumbered by the easement because the trail did not affect the property’s fair market value. As discussed above, the Legacy Trail negatively affected the property values of adjacent land. Plaintiffs established that installing a 25-foot buffer at $67 per lineal foot would mitigate the damage from the trail, and is a reasonable method of quantifying Plaintiffs’ severance damages. Accordingly, Plaintiffs are awarded $413,374.50 for the land taken and $139,250.12 in severance damages for a total of $552,624.62, as just compensation relating to Mission Valley.

Stoneybrook

Plaintiff Stoneybrook Golf & Country Club of Sarasota, Inc. (“Stoney-brook”), owns a parcel of land which was occupied by a golf course, country club, and homes on the date of the taking. The property was zoned residential single-family-2 in 2004, and was within the Palmer Ranch DRI. Tr. 805. The land underlying the trail corridor is 4.322 acres.

Stoneybrook was built pursuant to a rezoning petition, with an ordinance, Ordinance 89-27, and a resolution, Resolution No. R89131, approving the development as a special exception in 1989. Tr. 1176; DX 27, DX 28. Sarasota County approved plans to build a golf course and up to 1,870 residential units. The declaration of covenants, conditions, and restrictions (“Covenants”) for Stoneybrook designated open space land for a golf course and stated that the land would remain a golf course for at least 99 years. DX 29 (USRB006630). Additionally, Section 4 of Resolution No. R89-131 provided that land utilized for open space would be restricted by appropriate legal instruments as open space perpetually or for a period of not less than 99 years. DX 28 (US-RB006589). The Covenants also stated that all of the provisions in the Covenants would be in effect for 99 years, but were subject to amendment by at least two-thirds of the voting interests, or members of the homeowners’ association, *525 present at a vote. DX 29 (US-RB006643 to 006644).

Plaintiffs’ Expert’s Valuation of Stoney-brook

Mr. Durrance determined that the highest and best use of Stoneybrook was residential development based on the property’s future land use designation, its zoning district, and its location. Tr. 390. To appraise Stoney-brook, Mr. Durrance conducted a comparable sales analysis using five of the same properties that he used in appraising Mission Valley. The following table summarizes his findings: 26

& Subte mWM CmtVMt SsSsjle.3 <|¡¡l¡í

'■ ' SaleBafo’ii 7/2/04 3/22/04 10/4/04 8/30/04 7/28/04 12/27/05

•'' TSaic Price )|\ $8.25 mil $2.7 mil $5.402 mil $28 mil $5.9 mil $9.11 mil

196.76 40.00 15.381 20.77 199.44 27.732 38.40

$206,000 $176,000 $260,000 $140,000 $213,000 $237,000

Ann’s Length Aim's .Length Aim’s Length Ami’s Length Arm’s .Length Arm’s Length

Cash to Seiler Cash to Seller Cash to Seller Cash to Seller Cash to Seller Cash to Seiler

Z&ning/FUttaslj LmáVmSti igSK?¡«S- • *. ; l‘i, < RSF-2/PUD& MDR RE-1/MDR Approved units available within Palmer Ranch DR1 RSF-4/MDR Approved ■fiar 57-unit SFR subdivision RS1--4. RMF-2, FÜD& MDR/ MEDR OUE-1MDR Approved «nits available within Palmer Raich DKÍ RMF-3/HDR Approved for 160-unit attached fownRSF-4/MEDR Approval for 211-ratit attached foWllhoirtes

; Ü l lllllli , '«ms® Avadabl. Water / Sewer Water / Sewer Water/ Sewer Wafer/ Sewer Water/ Server Water/ Sewer Water / Sewer

/Environ men tai-í ‘“«iSsSfc ... r 30-35% 25-30% <5% <5% <10% 20-25% 20% South

Typical Typical Typical Perpetual Mitigation Easement Creek/ Transmission Power Lines Typical Typical

*526 Subject CMÍÍfí|¡1 - 'IPMX' Sate 2 ;Jal¥3.i -y-S ate 5 Sale6

MM-2004 Similar Sliglitly Inferior SfigJiLty Inferior Inferior Similar Superior

lKXo»áíiéÉjág¡s Palmer Ranch DR! Similar Inferior Sliglitly Inferior Similar Inferior Inferior

' iií,%Wxf'\- .‘'-a .. ^^íSÍ¿Cf.{Ac) ;- 196.076 Slightly Superior Slightly Superior Slightly Superior Similar Sliglitly Superior Sliglitly Superior

Iphning/Fuiure' Land Use •\-Entitlements wt ' RSF-2/PUD & MDR Slightly Inferior Similar Sliglitly Superior Slightly Meritor Similar Similar

¶ - Utilities •" feAysulábíc Water/ Sewer Similar Similar Similar Similar Similar Similar

j||pjLtond$ 30-35% Similar Superior Superior Superior Simitar Similar

iiSEaSemente/ ^Encumbrances Tyincal Similar Similar Slightly Inferior Inferior Similar Similar

O®?* rigdipparability_ Slightly Superior, Inferior-’ 'Siijiertert •'/fix ■Inimjgjg >p.px/P';:,■ ^giiperiOr,Superior

Mr. Durrance first compared Stoneybrook with Contract 1. He found Contract 1 was similar to Stoneybrook with respect to market conditions because it was contracted near the April 2004 taking. PX 25B (BB-PLTF13166). Likewise, Mr. Durrance rated Contract l’s location as similar to Stoneybrook’s because both properties were within the Palmer Ranch DRI. Id. However, Mr. Durrance characterized Contract 1 as slightly superior to Stoneybrook with respect to size because it was approximately 150 acres smaller. PX 25B (BB-PLTF-13165 to 13166). Mr. Durrance judged Contract 1 as slightly inferior in terms of zoning because it would need to be rezoned to achieve the same density as Stoneybrook. PX 25B (BBPLTF-13166). Lastly, he found Contract 1 was similar to Stoneybrook with respect to environmental lands and easements because the properties contained the same amount of environmental lands and neither property was encumbered by any significant easements. Id. Mr. Durrance determined Contract 1 was slightly superior to Stoneybrook.

Mr. Durrance appraised Sale 2 as inferior to Stoneybrook. First, he found that the mai’ket conditions for Sale 2 were slightly inferior because Sale 2 was contracted in late 2002. PX 25B (BB-PLTF-13166, BBPLTF-13193). However, the contract for Sale 2 had a $400,000 contract assignment fee, which Mr. Durrance determined mitigated the difference. Mr. Durrance also found Sale 2’s location to be inferior because it was on an unimproved road. PX 25B (BBPLTF-13166). He ranked Sale 2 as slightly superior for size because it was more than 175 acres smaller than Stoneybrook. Id. Sale 2 was similar to Stoneybrook for zoning because like Stoneybrook, moderate-density residential development was permitted. Id. Sale 2 had less environmental lands than Stoneybrook and was therefore superior. Id. Lastly, Sale 2 was similar to Stoneybrook with respect to easements and encumbrances because neither property had any significant easements or encumbrances. Id.

Mr. Durrance found that Sale 3 was superior to Stoneybrook for one factor, slightly superior for two factors, and slightly inferior for three factors. He rated Sale 3 superior because it had a smaller percentage of envi *527 ronmental lands. PX 25B (BB-PLTF13166). Mr. Durranee deemed Sale 3 slightly superior for size and zoning because it was substantially smaller than Stoneybrook and because medium-density residential development was allowed on Sale 3. PX 25B (BBPLTF-13165 to 13166). Mr. Durranee determined Sale 3 was slightly inferior for three characteristics: market conditions, location, and easements/encumbranees. PX 25B (BBPLTF-13166). Mr. Durranee found Sale 3 sold under slightly inferior market conditions because its sale was contracted in September 2003—a time when demand and prices were lower. PX 25B (BB-PLTF-131968, BBPLTF-13195). However, a $1,891,500 contract assignment fee lessened the extent of the delay’s impact. Mr. Durranee found Sale 3 was slightly inferior for location because it was adjacent to the Palmer Ranch DRI, not within the DRI as Stoneybrook was. PX 25B (BB-PLTF-13166, BB-PLTF-13168). Finally, he assessed Sale 3 as slightly inferior for easements/encumbranees because it was encumbered with a perpetual mitigation easement. PX 25B (BB-PLTF-13169).

Mr. Durranee found Sale 4 was superior to Stoneybrook with respect to environmental lands because Stoneybrook had 20 to 25% more environmental lands. PX 25B (BBPLTF-13165). Mr. Durranee rated Sale 4 as inferior for market conditions because its sale was contracted approximately one year before the taking occurred, when market conditions were less favorable. PX 25B (BB-PLTF-13166, BB-PLTF-13168). He found Sale 4 to be similar for location and size because it was located within the Palmer Ranch DRI and was only four acres larger than Stoneybrook. PX 25B (BB-PLTF13166, BB-PLTF-13168). Mr. Durranee rated Sale 4 slightly inferior in terms of zoning/future land use designation because Sale 4 needed to be rezoned to reach the densities allowed on Stoneybrook. Mr. Durranee found that Sale 4 was inferior with respect to easements/encumbranees because transmission power lines, a mesic hammock, and a creek encumbered the property, which constrained potential development. PX 25B (BB-PLTF-13169). Overall, Mr. Durranee rated Sale 4 as inferior to Stoneybrook.

In Mr. Durranee’s view, Sale 5 was slightly superior to Stoneybrook with respect to one factor, similar for five factors, and inferior for one factor. PX 25B (BB-PLTF-13166). He rated Sale 5 slightly superior for size because it was more than 150 acres smaller than Stoneybrook and similar with respect to market conditions because it sold within three months of the taking. PX 25B (BBPLTF-13165 to 13166). Sale 5 was similar to Stoneybrook in terms of zoning because both properties were designated for moderate-density residential development. PX 25B (BB-PLTF-13168). Stoneybrook and Sale 5 were similar for environmental lands and easements/encumbranees because they contained approximately the same amount of environmental lands and neither had any easements or encumbrances that affected potential development. PX 25B (BB-PLTF13169). Ultimately, Mr. Durranee appraised Sale 5 as superior to Stoneybrook.

Finally, Mr. Durranee compared Stoney-brook to Sale 6. Mr. Durranee determined Sale 6 sold under superior market conditions because its sale was contracted in mid-2005, a year after the date of the taking when real estate prices were reaching their peak. PX 25B (BB-PLTF-13168). Mr. Durranee deemed Sale 6 inferior in terms of location because it was located outside of the Palmer Ranch DRI and bordered an interstate and an overhead power line. PX 25B (BBPLTF-13168). He found Sale 6 similar for zoning because it also allowed for moderate-density residential development. PX 25B (BB-PLTF-13168). Lastly, Mr. Durranee concluded Sale 6 was similar for containing the same amount of environmental lands and not being encumbered by any significant easements. PX 25B (BB-PLTF-13169). Mr. Durranee rated Sale 6 superior to Stoneybrook.

Mr. Durranee concluded that Contract 1, which sold for $206,000 per acre, was most similar to Stoneybrook. Accordingly, he appraised Stoneybrook at $200,000 per acre.

Defendant’s Expert’s Valuation of Stoneybrook

Mr. Underwood appraised Stoneybrook using the same approach that he used to appraise Mission Valley—first using a compara *528 ble sales analysis to find the unrestricted value of Stoneybrook, and then appraising the property without development potential because of the open space use restriction. Tr. 1526. Before making any adjustments, the per acre prices of the comparable properties ranged from $90.000 to $259,712. The following table summarizes Mr. Underwood’s adjustments: 27

Wtib'iui miwím A~: " >,y mm#*

Location ■ SBC Comer of Central Sarasota Pkwy& McIntosh Rd, W side of Cattlemens RtLNof Richardson Rd. E side of Ilonorc Ave, S of Central Sarasota Ptoyy E side of Honoré Ave. S of Clark Rd. NWCof Cattlemens Rd. & Colonial Oaks B3vd, S side of SR 681 E of US 41

Sale Price N/A $5.9 mil $28 mil $5.402 mil $5.3 mil $19,959,100

-Sale Daté-7/04 8/04 10/04 11/04 8/05

Cond of Salé Ann’s Length Arm’s Length Arm’s Length Aim’s Length Arm’s Length

Property Interest Fee Simple Fee Simple Fee Simple Fee Simple Fee Simple Fee Simple

Záning/Lahd \4¡éf$$$$$; RSF-2/MDR RMF-3/HDR OUE-1/MDR OUE-1/MDR OUB-2 & RSF-3/MDR & QFFMF RMI1/MDR

>2~~ ~ A-3 ~i~-1323

28 (Ac~ 12182? 27~732 199A4 20~80

25~746 22L77 PricelAcre $212,751 $~40,393 $259312

$205,857 $90,000 0% 0% 0%

0% 0% 0% 0% -9%

-11% -15% Price $212,751 $140,393 $236,338

$183,213 $76,500 10% 0% 0%

10% 20% , -20% 15% -20%

20% 15% -5% 0% -5%

0% -10% cut: 15% -25%

-10% 25% ` ~ai~

*529 Mr. Underwood used the same properties in this comparable sales analysis as he used in the analysis for Mission Valley. Thus, when he adjusted the sales prices for time, he made the same adjustments as described above, adjusting Sale A-3 by -9%, Sale A-4 by -11%, and Sale A-13 by -15%. DX 53 (US-BB003782 to 003783). Mr. Underwood then compared Stoneybrook with the five comparable sales based on the three other factors—location, size, and land use regulations.

Mr. Underwood determined Sale A-l was in a less desirable location than Stoneybrook because A-l was next to rental apartments and in an area with smaller and older homes. DX 53 (US-BB003784). He applied a 20% downward adjustment to reflect the fact that Sale A-l was substantially smaller than Stoneybrook. DX 53 (US-BB003784 to 003785). Lastly, he adjusted Sale A-l’s sale price by negative five percent because it was zoned for a density of 5.77 dwelling units per acre, a greater density than that allowed for Stoneybrook. DX 53 (US-BB003786). In all, he adjusted the price of Sale A-l by -15%, for an adjusted price of $180,838 per acre. DX 53 (US-BB003782).

Mr. Underwood then compared Sale A-2 with Stoneybrook. He did not make any adjustments for location because both properties were within the Palmer Ranch DRI. DX 53 (US-BB003784). He increased the price of Sale A-2 by 15% pursuant to the large-lot adjustment because it was almost 200 acres. DX 53 (US-BB003784 to 003785). Mr. Underwood did not make any adjustments for land use regulations because the properties were zoned similarly and had similar future land use designations. DX 53 (US-BB003786). After considering all of the factors, Mr. Underwood adjusted Sale A-2 by 15%, for an adjusted price of $161,452 per acre. DX 53 (US-BB003783).

For Sale A-3, Mr. Underwood began with the time-adjusted price of $236,338 per acre, and did not make any adjustments for location, as Sale A-3 and Stoneybrook were both in the Palmer Ranch DRI. DX 53 (USBB003782 to 003784). Mr. Underwood applied a -20% adjustment because Sale A-3 was 100 acres smaller than Stoneybrook. Lastly, he applied a negative five percent adjustment for land use regulations because the sale of Sale A-3 was contingent on rezoning for denser development. DX 53 (USBB003786). After adjusting for time by negative nine percent, Mr. Underwood adjusted the sales price of Sale A-3 by an additional - 25% to reflect these differences, resulting in an adjusted price of $177,254 per acre. DX 53 (US-BB003783).

For Sale A-4, Mr. Underwood began with the time-adjusted price of $183,213 per acre, and because Sale A-4 was located near Sale A-l, a less desirable area, he applied a 10% adjustment. DX 53 (US-BB003784 to 003785). Because Sale A-4 was almost 100 acres smaller than Stoneybrook, following his large-lot adjustment theory, Mr. Underwood applied a -20% adjustment. DX 53 (USBB003783 to 003784). He did not make any adjustments for land use regulations because the zoning and land use designations for Sale A-4 were similar to those of Stoneybrook. DX 53 (US-BB003786). After adjusting by - 11% for time, Mr. Underwood adjusted Sale A-4 by -10%, resulting in a final adjusted price of $164,892 per acre. DX 53 (USBB003782 to 003783).

Finally, Mr. Underwood compared Stoney-brook to Sale A-13, beginning with its time-adjusted price. He applied a 20% adjustment for location because it was next to a mobile home development and southeast of major roads, a less desirable location than Stoneybrook. DX 53 (US-BB003784). He made a 15% adjustment for size because Sale A-13 was 221.77 acres, almost 100 acres larger than Stoneybrook. Mr. Underwood also made a -10% adjustment for land use regulations because the contract for Sale A-13 was contingent upon rezoning to a mixed-use planned development with multifamily hous *530 ing. DX 53 (US-BB003786). The non-time related adjustments for Sale A-13 totaled 25%, resulting in a final adjusted price of $95,625. DX 53 (US-BB003782 to 003783).

Mr. Underwood concluded Sale A-2, which sold for an adjusted price of $161,452 per acre, was the most comparable to Stoney-brook, while Sales A-l and A-13 were the least similar. DX 53 (US-BB003786). Based on this analysis, Mr. Underwood appraised Stoneybrook at $165,000 per acre before the taking without development restrictions. Tr. 1529; DX 53 (US-BB003786).

Mr. Underwood then appraised Stoney-brook with the assumption that it had no other potential uses than as a golf course. He imposed this restriction because the zoning ordinance that approved the development did not allocate any residential density to the golf course. Tr. 1526-27. To value Stoney-brook as a golf course, Mr. Underwood utilized the same paired analysis featuring non-economic remainders that he created as part of the Mission Valley appraisal, which provided that a property without development potential was worth 15% of the value of the same property with developmental potential. DX 53 (US-BB003787 to 003788). Accordingly, he appraised Stoneybrook at $24,800 per acre. Tr. 1530; DX 53 (US-BB003788 to 003789).

What Is the Proper “Before Value” of Stoneybrook?

The parties dispute whether Stoneybrook was subject to a 99-year open space requirement. The 99-year open space restriction is set forth in the resolution granting the petition for a special exception and documented in the Covenants recorded with the County in 1994. DX 28 (US-RB006589), DX 29 (US-RB006630). Mr. Durrance acknowledged the use restriction in his appraisal report but determined that it had no effect, stating:

The property is subject to the covenants, conditions, and restrictions for the Stoney-brook Golf and Country Club of Sarasota and identified as Community Common Areas and Club Common Areas. The private restrictions, imposed on the property when it was developed, can be removed by a majority vote of the members.

PX 25B (BB-PLTF-13165). The removal mechanism Mr. Durrance referenced is contained in the amendments provision of the Covenants. DX 29 (US-RB006643 to 006644).

Mr. Bass, Defendant’s expert in land use planning, opined that Stoneybrook could not be used for residential development, testifying: '

[T]he density’s already been transferred off the golf course, off the common area. When in rezoning process, you’re coming with a special exception to put a golf course in, open space preservation. You’re clustering your density over to development pots, so there is no density on the golf course at present, as of the date the ordinance was adopted. That’s why you do a clustering or [planned unit development]. You move the density around on site. Take smaller lots.

Tr. 1175. Mr. Bass disagreed with Ms. All-red’s conclusion that the County would ignore the Covenants, stating: “I believe they would not ignore it because they’re the ones who required it.” Tr. 1194. He opined that if a rezoning petition made it through the review process, the Board of County Commissioners would deny it. Tr. 1194-95. However, Mr. Bass acknowledged that Stoneybrook could be rezoned if there were unified control and ownership over the property. Tr. 1289-92. Specifically, if the residents who owned land within the Stoney-brook development agreed to develop the golf course, they could file a corrected deed and rezoning petition, and proceed through the rezoning process.

Stoneybrook should be appraised without the use restriction. The fact that Stoney-brook was subject to use restrictions in April 2004, does not limit its highest and best use if Plaintiffs can show that a more valuable use was physically possible, appropriately supported, and financially feasible. McCandless v. United States, 298 U.S. 342, 345 , 56 S.Ct. 764 , 80 L.Ed. 1205 (1936); Loveladies Harbor Inc. v. United States, 21 Cl.Ct. 153, 156 (1990). Plaintiffs satisfied this burden here. First, Mr. Bass testified that Stoneybrook could be rezoned assuming there was unified *531 control and ownership of the property, as the unit rule requires. Tr. 1288-91. Similarly, under the unit rule, the 99-year use restriction in the Covenants could be removed because the Covenants were subject to amendment, and the unit rule requires, an appraiser to assume unified control and ownership. See DX 29 (US-RB006643 to 006644). Second, according to Ms. Allred’s credible testimony, Sarasota County would not consider open space restrictions in the context of rezoning unless they were related to habitat preservation. Tr. 780. The restriction here preserves open space for a golf course—not habitat preservation. Plaintiffs have put forth sufficient evidence to show that rezoning for residential development was reasonably probable, because such a proposed change comports with this property’s future land use designation under Sarasota County’s comprehensive plan. PX 11, PX 25B (BB-PLTF-13164).

Even without the use restriction, the parties do not agree on the value of Stoneybrook before the taking. Mr. Durrance appraised the property at $200,000 per acre, while Mr. Underwood appraised it at $165,000 per acre. Messrs. Durrance and Underwood used two of the same properties in their analyses: Sale 4/A-2 and Sale 3/A-3. While the appraisers agreed about how the properties compared to Stoneybrook overall—that Sale A-3 was superior and Sale 4/A-2 was inferi- or—they disagreed about how the properties compared with respect to market conditions and land use regulations. Specifically, for market conditions, Mi’. Underwood did not make any time-based adjustments to Sale 4/A-2 because the sale closed in August 2004. In contrast, Mr. Durrance rated Sale 4/A-2 as inferior to Stoneybrook because its sale was contracted a year before the date of valuation. Compare DX 53 (US-BB003782), with PX 25B (BB-PLTF-13165 to 13166). Similarly, Mr. Underwood applied a negative nine percent adjustment to Sale 3/A-3 because the sale closed in October 2004, indicating it sold during superior market conditions, while Mr. Durrance rated the same property slightly inferior because its sale was contracted in September 2003. Compare DX 53 (US-BB003782), with PX 25B (BBPLTF-13165 to 13166). Again, Mr. Durranee based his analysis on the dates when Sales 3/A-3 and 4/A-2 were contracted, while Mr. Underwood used the closing dates, and inflated the value of Sale 3/A-3. Mr. Durrance’s approach better reflects the market conditions when the prices for the properties were determined, and is therefore more accurate and persuasive.

The experts also approached land use differently. Mr. Durrance addressed three types of restrictions: zoning/future land use designation, environmental lands, and easements/eneumbrances. Mr. Underwood utilized one category, zoning/future land use, and did not mention a 2.3-acre perpetual mitigation easement that limited development on Sale 3/A-3, while Mr. Durrance rated Sale 3 as slightly inferior for easements/encumbrances because of the mitigation easement. Mr. Underwood made a negative five percent adjustment for land use regulations, indicating Sale 3/A-3 was superi- or to Stoneybrook for that factor. Moreover, Mr. Underwood did not acknowledge the fact that Sale 4/A-2 featured a creek, mesie hammock, and overhead transmission power lines, while Mr. Durrance rated the property as inferior because of those development constraints. Mr. Durrance’s more thorough consideration of land use better reflected the “before value” of Stoneybrook, while Mr. Underwood inflated the value of Sales 3/A-3 and 4/A-2. Mr. Durrance appraised Stoneybrook at $200,000 per acre, and the Court adopts this as the “before value” of the property.

Just Compensation for Stoneybrook

After the taking, 4.322 acres of Stoney-brook are occupied by the trail corridor. The corridor runs along the eastern side of the property for 2,017.62 lineal feet. Plaintiffs seek $1,483,900 in compensation in relation to Stoneybrook—$860,500 for the land encumbered by the easement, $302,600 in severance damages, and $320,800 for “conversion land damages.” Defendant argues just compensation should be limited to the land encumbered by the easement and would limit just compensation to $106,100 per acre, based on the assumption that Stoneybrook did not have development potential.

*532 As discussed above, Stoneybrook should be appraised with development potential, at $200,000 per acre. As such, because 4.322 acres of Stoneybrook are encumbered by the rail-trail corridor, Plaintiffs are awarded $855,756 for the land encumbered.

Plaintiffs are also entitled to compensation for the cost of installing a 50-foot buffer for the 2,017.62 lineal feet of land adjacent to the corridor. As discussed above, because Stoneybrook is in the Palmer Ranch DRI, which required a 50-foot buffer, adding such a buffer on the land adjacent to the corridor at $115 per lineal foot is a reasonable means of mitigating the negative effect of the trail on the value of the Stoneybrook remainder. Accordingly, Plaintiffs are entitled to $232,026.30 in severance damages representing the cost of buffering.

Plaintiffs seek “conversion land damages” for Stoneybrook but do not seek this category of damages for the other 12 properties. These damages represent the value of an additional 35 feet of land adjacent to the trail necessary to create a 50-foot wide buffer. Mr. Durrance included conversion damages for Stoneybrook because after the taking, a developer would need to set aside an additional 35 feet of land for a setback and buffering along the trail to comply with the Palmer Ranch Development Code, which required a 50-foot buffer, and that land would have been rendered unusable for other purposes. Tr. 391-93. He provided the following explanation:

[P]er the Palmer Ranch Development Code, the minimum required buffer width along the new rail/trail corridor is 50 feet, which is an increase of 35 feet from the Before condition and results in 1.62 acres of developable residential lands being converted to buffer area. The use of this area has essentially been acquired as a result of the rail-trail easement. In other words, it is a linear strip of land along the perimeter of the property that is essentially “set aside” for other uses and effectively becomes the new boundary of the property.

PX 25B (BB-PLTF-13183). Mr. Durrance continued:

The manner in which that was calculated is in the before condition, the market says 10 to 20 feet. I used 15 feet, a 15-foot setback from the perimeter as the typical market before situation, and I used 50 feet in the after, so you have an increased setback or distance, if you will, and that 35 feet of additional land area as a result of the new easement times the length comes out to 1.62 acres that I’ve put there in the chart, and you can see the calculations there, $320,800. It essentially eliminates some land area is what it does.

Tr. 391-93. In sum, Mr. Durrance determined that a 35-foot wide strip of land adjacent to the trail would need to be converted to a buffer to comply with the Palmer Ranch Development Code, and Plaintiffs seek damages of $320,800 representing the value of the land underlying the 35-foot wide strip, because the buffered land could not be used for other purposes. Defendant contends Plaintiffs are not entitled to recover conversion damages because the Palmer Ranch Development Code does not have the force of law.

Plaintiffs’ claim for conversion damages presents an issue of first impression. Plaintiffs include them claim for conversion land damages under the rubric of severance damages. When a partial taking occurs, a plaintiff may recover severance damages to compensate for the diminution in the value of the remainder caused by the taking. See United States v. Grizzard, 219 U.S. 180, 184 , 31 S.Ct. 162 , 55 L.Ed. 165 (1911) (awarding severance damages because plaintiff proved that the partial taking caused plaintiff to lose access to a village market, church, and school, which lessened the remainder’s value); United States v. Welch, 217 U.S. 333, 338-39 , 30 S.Ct. 527 , 54 L.Ed. 787 (1910) (awarding severance damages because plaintiff proved that the partial taking caused plaintiff to lose access to a right-of-way, which decreased the value of the remainder); Georgia-Pac. Corp. v. United States, 226 Ct.Cl. 95, 123-24 , 640 F.2d 328 (1980) (per curiam) (awarding severance damages because plaintiff proved that a partial taking of forest land negatively impacted the manner in which the remainder could be logged, decreasing the value of the remainder).

*533 In order to recover severance damages, Plaintiffs must demonstrate that the taking caused a diminution in the value of the remainder. See Grizzard, 219 U.S. at 184 , 31 S.Ct. 162 ; Welch, 217 U.S. at 338-39 , 30 S.Ct. 527 ; Georgia-Pac. Corp., 226 Ct.Cl. at 123-24 , 640 F.2d 328 . Plaintiffs have not met that burden here. While the Legacy Trail itself caused a diminution in value to the remainder by exposing landowners to noise, trespass, and nuisance, Plaintiffs have not established that mitigation of this harm in the form of an additional 35-foot buffer would equate to a diminution in the value of the remainder. In essence, Plaintiffs are asking the Court to find that the 35-foot buffered strip is valueless. But that is not the case. Plaintiffs still own the land under the 35-foot buffer, and they have not demonstrated how the buffer adversely affected the value of either the land underneath it or the valuation of the remainder. In contrast, there is evidence that in Sarasota County buffering has a recognized value. Under the County Code, buffered areas qualify as open space, and Sarasota County has an open space requirement of 30% for urban planned unit developments, such as Stoneybrook. Tr. 778-80.

This is not a situation like Gizzard where the taking eliminated access to the remainder, causing a depreciation in the value of the remainder. Nor is this akin to Welch where the taking caused plaintiff to lose the only practical outlet from plaintiffs farm to the county road, causing a diminution in the value of the remainder. Finally, Plaintiffs’ generalized assertion that the 35-foot buffer prevented them from otherwise using their land, does not come close to the detailed proof of economic loss to the remainder shown by the plaintiff in Georgiar-Pacific. There, plaintiff proved that defendant’s taking of forest land adversely affected the manner in which the remainder could be logged, which lowered the value of the remainder, by demonstrating the manner the timber could have been logged before the partial taking, the manner the timber had to be logged after the taking, the total quantity of timber that could be logged on the remainder, and the economic consequences of this change in logging manner. 226 Ct.Cl. at 123-25 , 640 F.2d 328 .

The Court awards Plaintiffs $1,087,782.30 in damages with respect to Stoneybrook, representing $855,756 for the land encumbered by the easement and $232,026.30 in severance damages for the cost of installing a 50-foot wide buffer.

TPC-Prestancia

Plaintiff Tournament Players Club at Prestancia, Inc. owns TPC-Prestancia (“TPC”), a tract of land with an 18-hole golf course, a clubhouse, and related facilities. 29 McIntosh Road runs north-south along the eastern border, separates TPC from the rail-trail corridor, and runs along the McIntosh Road right-of-way. PX 26C. The parties agreed that land underlying the rail-trail corridor measured 3.903 acres.

TPC-Prestancia’s golf course was built in the mid-1980s, after Sarasota County approved a 986-unit residential development adjacent to the course. DX 30. TPC was developed pursuant to an incremental development order, allowing a development to be added to an existing DRI. Tr. 1200-01. Exhibit B to the incremental development order, Resolution 84-419, stated:

The Bay Venture Corporation, as committed in the [Application for Incremental Development Approval], shall provide 146.5 acres of parks and green space, a 106.3 acre golf course and club, and 65 acres of lakes/ponds. All recreational facilities shall be maintained via membership fees, mandatory master homeowners association, sub-home owner/eondo associations, and other similar maintenance and management operations.

DX 30 (BB-PLTF-15879). 30 Section 4.1 of the resolution stated that all conditions, restrictions, requirements, commitments, and impact mitigating provisions in the resolution were enforceable by Sarasota County by an *534 action at law or equity. 15863). DX 30 (BB-PLTF-

The Covenants for TPC, which were recorded in 1986, provided that land designated on the property plan as a golf club would only be used for “Golf Course Purposes.” DX 31 (BB-PLTF-15805, BB-PLTF-15809 to 15810). The Covenants further provided that the provisions would remain in effect for 99 years. DX 31 (BB-PLTF-15830 to 15831). However, the Covenants were subject to amendment by a vote of two-thirds of all members of the homeowners’ association. DX 31 (BB-PLTF-15831).

Plaintiffs’ Expert’s Valuation of TPCPrestancia

Plaintiffs’ expert appraised TPC by comparing it to six other nearby properties, with residential development as the highest and best use. The six properties that Mr. Durranee used to appraise TPC were the same properties he used to appraise Stoneybrook. The following table summarizes his findings: 31

yi^ {¿Subject Contract' 1T ■;-Satót§<íSale 6

mm 3/22/04 10/4/04 8/30/04 7/28/04 12/27/05

$8,250 mil $2.7 mil $5.402 mil $28 mil $5,9 mil $9.11 mil

226.241 40.00 15.381 20.77 199.44 27,732 38.40

$206.000 $176.000 $260,000 $140,000 $213,000 $237.000

- Safes -'X’' ChiwíííionsX j Ami’s Length Ann's Length Ann's Length Arm's Length Ann’s Length Arm’s Length

Cash to Seller Cash to Seller Cash in Seller Cash to Seller Cash to Seller Cash to Seller

í" y*** Zoning/Futui e Lahd\Use/r. EntitfenfehiS'/' -/ifXXfiT RSF-2TUD RMF-1/PUD & MDR ' '.’XíXA' "¿aX '<•" RH-l/MDR Approver! units available within Palmer Ranch DRI RSF-4/MDR Approved for 57-uuil SFR subdivision RSF-4, RJV1F-2, PUD & MDR/ MEDR OUB-l/MDR Approved units available within Palmer Ranch DRI RMF-3/HDR Approved for 160-trnit attached town-homes RSF-4/MEDR Approved for 211-xuiit attached townliomes

Water/ Sewer Water/ Sewer Water/ Sewer Water / Sewer Water/ Sewer Water/ Sewer Water / Sewer

<5% 25-30% <5% <5% <10% 20-25% 20%

-•'SEaSsMenfe/ Encumbrances V Typical Typical Typical Perpetual Mitigation Basement South Creek/ Transmission Power Lines Typical Typical

■ SÍiápp^onfiguf . .radon X,>4> Irregular Slightly Irregular Generally Rectangular Generally Rectangular Sliglitly Irregular Generally Rectangular Triangula r

*535 '.i-'v i^SaleS'.

. .. ftlafket” r” CvodiU«n8 ;:r' Mid-2004 Similar Sliglitly Inferior Sliglitly Inferior Inferior Simitar Superior

Lheatitmy. Palmer Rauck DM Similar Merior Slightly Inferior Similar Inferior Inferior

226.241 Slightly Superior Slightly Superior Slightly Superior Similar Sliglitly Superior Slightly Superior

RSF-2/PUD RMF-1/PUD& MDR Slightly Inferior Similar Slightly Superior Slightly Inferior Similar Similar

Water / Sewer Similar Similar Similar Similar Similar Similar

Environmental Lands • "¿y <5% Inferior Similar Similar Similar Inferior Inferior

'"EnpuhibLal^sy v* J J;?"4 '^4',' Typical Similar Similar Slightly Inferior Inferior Similar Similar

.;s4>:T:ation 7.. - 32 tegular Sliglitly Superior Superior Superior Slightly Superior Superior Sliglitly Superior

^Qomparahilih''.' 7>Siiléñpi5 yí...,r..... °Ml':yY.YY Inferipr jiSupéfiórf

Mr. Durrance first compared TPC to Contract 1, a 40-acre property that was under contract with a developer in mid-2004 for a proposed residential subdivision. PX 26B (BB-PLTF-13293). Mr. Durrance determined that Contract 1 was similar to TPC with respect to market conditions because its contract was signed in July 2004, three months after the date of the taking. PX 26B (BB-PLTF-13296). The properties were also similar in terms of location because both were located within the Palmer Ranch DRI. Id. Mr. Durrance determined that Contract 1 was slightly superior in terms of size because it was 40 acres, and “in some instances smaller sized properties, may sell for higher unit prices.” Id. Mr. Durrance found Contract 1 was slightly inferior for zoning because it was zoned residential estate-1, a lower density designation than TPC, and required rezoning to achieve moderate-density development. Id. He rated Contract 1 inferi- or with respect to environmental lands because 25% to 30% were occupied- by environmentally sensitive lands, while less than five percent of TPC was. PX 26B (BB-PLTF13293 to 13294). Mr. Durrance found that TPC did not have any easements or encum-

*536 brances that negatively affected TPC’s development potential. He opined that the McIntosh Road right-of-way, while an easement, was typical of the DRI. PX 26B (BB-PLTF13296) . Mr. Durrance determined the McIntosh Road right-of-way was not a negative because it ran throughout the Palmer Ranch DRI. Id. Finally, Mr. Durrance rated Contract 1 slightly superior with respect to shape/configuration because TPC was more irregularly shaped. PX 26B (BB-PLTF13297) . After considering these five factors, Mr. Durrance concluded that Contract 1 was superior to TPC. Id.

Mr. Durrance compared TPC to Sale 2, a 15.381-aere property located on an unimproved road. PX 26B (BB-PLTF-13293 to 13294). He rated Sale 2 slightly inferior to TPC with regard to market conditions because the sale was contracted in 2002, when demand was not as strong. PX 26B (BBPLTF-13296). However, the contract included a $400,000 contract assignment fee, which reflected changing market conditions and mitigated the impact of the gap in time. Mr. Durrance found Sale 2 to be inferior in terms of location because it was on an unimproved road. Id. He assessed Sale 2 as slightly superior for size because it was more than 200 acres smaller than TPC. PX 26B (BB-PLTF-13293). Mr. Durrance determined Sale 2 was similar for environmental lands and easements/encumbrances because the properties had less than five percent environmentally sensitive lands and neither was negatively impacted by an easement or encumbrance. PX 26B (BB-PLTF-13296 to 13297). Lastly, he appraised Sale 2 as superior to TPC with respect to shape/configuration because Sale '2 was generally rectangular, while TPC was irregular. PX 26B (BBPLTF-13297). Mr. Durrance’s final assessment of Sale 2 was that it was similar to TPC. Id.

Mr. Durrance next compared TPC to Sale 3, a property to the east of the Palmer Ranch DRI. He rated the market conditions for Sale 3 as slightly inferior because the sale was contracted in September 2003, when market conditions were less favorable because of weaker demand. PX 26B (BB-PLTF-13294 to 13296). However, the sales contract included a $1,891,500 assignment fee, which lessened the negative impact of the time of sale. Because Sale 3 was approximately 200 acres smaller than TPC, Mr. Durrance rated it as slightly superior for size. PX 26B (BBPLTF-13296). Mr. Durrance appraised Sale 3 as slightly superior for zoning because it had entitlements in place to allow for medium-density residential development. Id. He determined Sale 3 was similar to TPC because both properties had less than five percent environmental lands. PX 26B (BBPLTF-13293 to 13294). Mr. Durrance rated Sale 3 slightly inferior regarding easements/encumbrances because it had a perpetual mitigation easement that limited development on the property. PX 26B (BB-PLTF13296) . Finally, Mr. Durrance assessed Sale 3 as superior for shape/configuration because it was more regularly shaped. In all, Mr. Durrance appraised Sale 3 as superior to TPC. PX 26B (BB-PLTF-13297).

Mr. Durrance rated Sale 4, an almost 200-acre property located within the Palmer Ranch DRI, as inferior to TPC with respect to market conditions because its sale was contracted one year before the date of the taking. PX 26B (BB-PLTF-13296). He rated Sale 4 as similar in terms of size and location because it was approximately 25 acres smaller than TPC and both properties were in the Palmer Ranch DRI. PX 26B (BB-PLTF-13293, BB-PLTF-13296). Mr. Durrance found Sale 4 to be slightly inferior in terms of zoning because it needed to be rezoned from open use estate-1 to residential multifamily to reach the same level of density allowed on TPC. PX 26B (BB-PLTF-13296). Mi’. Durrance determined that the properties were similar for environmental lands because each contained less than five percent environmental lands. Id. He concluded that Sale 4 was inferior to TPC in terms of easements/encumbrances because it was encumbered by a transmission power line, a mesie hammock, and a creek, which limited development. Id. Mr. Durrance determined that Sale 4 was slightly superior for shape/eonfiguration because it was less irregularly shaped than TPC. PX 26B (BB-PLTF13297) . Mr. Durrance concluded that in all, Sale 4 was inferior to TPC.

*537 Mr. Durrance determined Sale 5 was similar to TPC in regard to market conditions because the sale closed in July 2004, three months after the date of the taking. PX 26B (BB-PLTF-13295). For location, Mr. Durrance found that Sale 5 was inferior to TPC because Sale 5 was near an interstate. Id. He rated Sale 5 slightly superior with respect to size because it was almost 200 acres smaller than TPC. Id. He found Sale 5 and TPC to be similar in terms of zoning because both properties had zoning in place to allow moderate-density residential development. Id. Mr. Durrance deemed Sale 5 inferior for environmental lands because 20 to 25% of Sale 5 was occupied with such lands. PX 26B (BB-PLTF-13293, BB-PLTF-13296). He rated Sale 5 similar for easements/eneumbrances because neither property had any easements that significantly impacted development potential. PX 26B (BB-PLTF13296). Lastly, Mr. Durrance deemed Sale 5 superior for shape/configuration because Sale 5 was more regularly shaped. PX 26B (BBPLTF-13297). Overall, Mr. Durrance rated Sale 5 superior to TPC.

Finally, Mr. Durrance compared TPC to Sale 6. Sale 6 sold in December 2005, when demand for real estate was higher, leading Mr. Durrance to rate it superior. PX 26B (BB-PLTF-13296, BB-PLTF-13338). Because Sale 6 was outside of the Palmer Ranch DRI, Mr. Durrance rated it inferior to TPC for location. PX 26B (BB-PLTF13296). He deemed Sale 6 slightly superior to Sale 6 with respect to size because it was almost 200 acres smaller than TPC. Id. He found Sale 6 to be similar to TPC with respect to zoning because the properties had zoning and land use restrictions in place to allow moderate-density residential development. Id. Mr. Durrance determined Sale 6 was inferior because 20% of Sale 6 had environmentally sensitive lands, while TPC had less than 5%. PX 26B (BB-PLTF-13293 to 13294). He assessed Sale 6 as similar to TPC for easements/encumbrances because neither property had any easements or encumbrances that affected the property’s development potential. PX 26B (BB-PLTF13296 to 13297). Finally, Mr. Durrance found Sale 6 to be slightly superior for shape/configuration because Sale 6 was less irregularly shaped. PX 26B (BB-PLTF13297). Ultimately, Mr. Durrance evaluated Sale 6 as superior to TPC.

Mr. Durrance ranked the properties from superior to inferior and concluded that TPC was most similar to Contract 1, which sold for $206,000 per acre, and Sale 2, which sold for $176,000 per acre. Mr. Durrance appraised TPC at $200,000 per acre before the taking. PX 26B (BB-PLTF-13297).

Defendant’s Expert’s Valuation of TPCPrestancia

Defendant’s expert also appraised TPC using a comparable sales analysis. As he did for Mission Valley and Stoneybrook. Mr. Underwood initially appraised TPC without any development restrictions and with residential development as the highest and best use, but then changed his assumption, based on counsel’s instruction. Like Mr. Durrance, Mr. Underwood used the same properties to appraise TPC as he did to appraise Stoney-brook. Before making any adjustments, the prices of the comparable properties ranged from $90,000 to $259,712 per acre. The following table summarizes the properties used and the adjustments that Mr. Underwood made: 33

*538 -'■>,*>/■< Skf - A-2! /?/?■ A-4'). \ 5».

Location* SWC of Palmer Ranch Pkwy & McTntosh Rd. W side of Cattlemens Rd. N of Richardson Rd. E.side of Houore Ave. S of Central Sarasota Pkwy E side of Honoré Ave. S of Clark Rd. NWC of Cattlemens Rd. & Colonial Oaks Blvd. S side of SR 681 E ofUS 41

Sale Price1 $5.9 mil $28 mil $5.402 mil $5.3 mil $19.959,100

SaMMelC 7/04 8/11.1 10/04 11/04 S/Q5

(. «ml of Sale Arm’s Length Arm’s Length Anti’s Length Ami’s Length Arm's Length

Property . Interest Fee Simple Fee Simple Fee Simple Fee Simple Fee Simple Fee Simple

Zonihg/Limd, ;üse y¡y ■ X,^ RE-2/MDR RMF-3/HDR QUE-1/MDR OÜE-1MDR OUE-2 & RSF-3/MDR & OFFMF RMH/MDR

Size (Ac), 201.903 27.732 199, 34 20.80 25,746 221,77

Price/Acre $212.751 $140.393 $259,712 $205.857 $90,000

Adjustments yj

Tmahcing ,. 0% 0% 0% 0% 0%

Subject A-4 J*rP

Time 0% 0% -9% -15%

Time-Adjusted Sales Price $212,751 $140.393 $236,338 $183,213 $76.500

Loeatipafl? io% o% 0% io%

7. ¿ ;A: Property Size ! -35% 0% -35% -35% 0%

Land-Use •' Regulation, -5% 0% -5% 0% -10%

-30% 0% -40% -25% 10%

Total Adjustment -30% 0% 4018 -25% 10%

Adjusté,djl’l Prifcé/á&'EiH'í JílS326 $140.393. ............. /Silvio v‘ $84.150 k-.M vA-t-K--''

*539 Mr. Underwood first adjusted the sales prices for time, making the same adjustments in his appraisals of Mission Valley and Stoneybrook, resulting in a -9% adjustment to Sale A-3, a -11% adjustment to Sale A-4, and a -15% adjustment to Sale A-13. Mr. Underwood then compared TPC with the five comparable sales based on the three other factors—location, size, and land use regulations.

Mr. Underwood first analyzed Sale A-l, a 27.732-aere property. He adjusted the price of Sale A-l by 10% because it was located in a less desirable area of Sarasota County where homes were typically older and smaller. DX 52 (US-BB002269). Because Sale A-l was approximately 170 acres smaller than TPC, Mr. Underwood applied the 35% large-lot adjustment. DX 52 (USBB002267). Lastly, he applied a negative five percent adjustment for land use regulations because Sale A-l was zoned to allow development at 5.77 dwelling units per acre, while TPC was zoned to allow 1.95 dwelling units per acre. DX 52 (US-BB002259, USBB002271). In all, Mr. Underwood adjusted Sale A-l by a total of -30%, for an adjusted price of $148,926 per acre. DX 52 (USBB002267).

Mr. Underwood next compared TPC to Sale A-2. He did not make any adjustments to Sale A-2 because like TPC, it was within the Palmer Ranch DRI, it was almost the same size as TPC, and the properties were subject to similar land use regulations. DX 52 (US-BB002267 to 002271). Because Mr. Underwood did not make any adjustments to Sale A-2, its final price per acre was $140,393. DX 52 (US-BB002267).

Mr. Underwood next considered Sale A-3, a property within the Palmer Ranch DRI that was purchased for residential development. He began with the time-adjusted price of $236,338 per ¿ere. Mr. Underwood did not make any adjustments for location because both Sale A-3 and TPC were within the DRI. DX 52 (US-BB002269). He applied the 35% large-lot adjustment because Sale A-3 was 20.8 acres, approximately 180 acres smaller than TPC. DX 52 (USBB002267). Lastly, he adjusted the price of Sale A-3 by negative five percent to reflect the fact that it was zoned to allow development up to 7.02 dwelling units per acre. DX 52 (US-BB002265, US-BB002267). In sum, Mr. Underwood adjusted the price per acre of Sale A-3 by -40%, for a final price of $141,803 per acre. DX 52 (US-BB002267).

Mr. Underwood compared TPC to Sale A-4, a 25.746-acre property that was subsequently developed with smaller homes. He began with the time-adjusted price of $183,213 per acre. He made a 10% adjustment for location because Sale A-4 was located in the same area as Sale A-l, a less desirable area with older homes. DX 52 (US-BB002269). He applied the 35% large-lot discount because Sale A-4 was approximately 175 acres smaller than TPC. DX 52 (US-BB002267). Mr. Underwood did not make any adjustments for land use regulations because the property had similar zoning restrictions to TPC. DX 52 (US-BB002271). In addition to the -11% time-based adjustment, Mr. Underwood adjusted the price per acre of Sale A-4 by -25%, for a final adjusted price of $137,410. DX 52 (US-BB002267).

The final property in Mr. Underwood’s comparable analysis was Sale A-13, and he began with the time-adjusted price of $76,500. He determined Sale A-13’s location was substantially inferior to TPC’s because it was adjacent to an existing mobile home park and had only one access point, resulting in a 20% adjustment. DX 52 (USBB002269). Mr. Underwood did not make any adjustment for size because A-13 was 20 acres larger than TPC, which he deemed insignificant. DX 52 (US-BB002267). Lastly, with respect to land use regulations, Mr. Underwood adjusted the price per acre by - 10% because A-13 was zoned to allow multifamily and commercial development, a designation preferable to the residential development allowed on TPC. DX 52 (USBB002271). After adjusting for time, Mr. Underwood adjusted the price of Sale A-13 by 10%, for a final adjusted price of $84,150 per acre. DX 52 (US-BB002267).

After the adjustments, the prices of the comparison properties ranged from $84,150 *540 to $148,926 per acre. Based on his analysis, Mr. Underwood concluded that TPC was most similar to Sale A-2, and Sales A-l and A-3 were the next most similar. DX 52 (US-BB002271). He appraised TPC at $145,000 per acre, with residential development as the highest and best use. DX 52 (US-BB002271).

Mr. Underwood then appraised TPC with

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