Childers v. United States ( 2014 )

In the United States Court of Federal Claims
No. 08-1981
No. 07-4262
(Filed: August 5, 2013)
(Reissed: April 2, 2014)
************************
NATHAN and DEBORAH *
CHILDERS, et al., *
*
Plaintiffs, *
* Fifth Amendment Taking; Rails-
v. * to-Trails, 16 U.S.C. § 1241 et seq.;
* Just Compensation; Fair Market
THE UNITED STATES, *
* Value of Property Pre- and Post-
Defendant. * Taking; Severance Damages;
* Conversion Land Damages; Cost
************************ to Cure; Buffering; Loss of
************************ Access; Unit Rule; Noneconomic
CALUSA LAKES COMMUNITY * Remainder; Highest and Best Use;
ASSOCIATION, et al., *
Private Deed Restrictions; Public
*
Plaintiffs, * Use Restrictions; Zoning;
* Covenants, Conditions, and
v. * Restrictions; Expert Disclosures;
* Striking Expert Testimony.
THE UNITED STATES, *
*
Defendant. *
*
************************
Mark F. (Thor) Hearne, II, Lindsay S.C. Brinton, and Meghan S. Largent, Arent Fox
LLP, 112 S. Hanley Road, Suite 200, Clayton, MO 63105; Debra J. Albin-Riley and Joseph L.
Cavinato, III, Arent Fox LLP, 555 West Fifth Street, 48th Floor, Los Angeles, CA 90013, for
Plaintiffs.
Ignacia S. Moreno, Carol L. Draper, Lary Cook Larson, and Jason A. Hill, United States
Department of Justice, Environment & Natural Resources Division, 601 D Street, N.W.,
Washington, DC 20044; Kristine S. Tardiff, United States Department of Justice, Environment &
Natural Resources Division, 53 Pleasant Street, 4th Floor, Concord, NH 03301, for Defendant.
Charlotte M. Youngblood, United States Department of Justice, Environment & Natural
Resources Division, 601 D Street, N.W., Washington, DC 20044, of Counsel.
____________________________________________________________________
OPINION AND ORDER
_____________________________________________________________________
Contents
Findings of Fact ............................................................................................................................................ 6
Discussion ..................................................................................................................................................... 8
Jurisdiction ................................................................................................................................................ 8
Legal Standards Governing Just Compensation ....................................................................................... 8
Appraisals of the Subject Properties ....................................................................................................... 10
The Experts’ Methodologies ................................................................................................................... 10
Quantitative Versus Qualitative Comparable Sales Analysis ............................................................. 10
Appraisal Principles ................................................................................................................................ 12
The Propriety of Applying a Large-Lot Discount ............................................................................... 12
The Propriety of Considering Use Restrictions .................................................................................. 14
The Efficacy of a Private Deed Restriction......................................................................................... 17
Public Use Restrictions and the Ability to Rezone Property in Sarasota County in   2004 .............. 20
The Taking’s Effect on the Fair Market Value of Properties Adjacent to the Trail................................ 25
Plaintiffs’ Paired Sales Analysis ......................................................................................................... 25
Plaintiffs’ Anecdotal Evidence ........................................................................................................... 26
Plaintiffs’ Evidence on Potential Future Uses of the Legacy Trail ..................................................... 27
Defendant’s Paired Sales Analysis ..................................................................................................... 27
Defendant’s Trail Impact Studies ....................................................................................................... 27
Defendant’s Anecdotal Evidence ........................................................................................................ 28
Defendant’s Evidence on Future Uses of the Legacy Trail ................................................................ 29
The Court’s Assessment of the Experts’ Opinions on Whether the Legacy Trail Negatively Impacted
Property Values ....................................................................................................................................... 29
The Diminution in Value to the Remainder Due to the Trail ................................................................. 31
The Width of the Buffer ...................................................................................................................... 31
The Cost of Buffering ......................................................................................................................... 33
Just Compensation for Plaintiffs’ Individual Properties ............................................................................. 35
Mission Valley ........................................................................................................................................ 35
Plaintiffs’ Expert’s Valuation of Mission Valley................................................................................ 35
Defendant’s Expert’s Valuation of Mission Valley ............................................................................ 39
2
What Is the Proper “Before Value” of Mission Valley? ..................................................................... 42
Just Compensation for Mission Valley ............................................................................................... 44
Stoneybrook ............................................................................................................................................ 44
Plaintiffs’ Expert’s Valuation of Stoneybrook.................................................................................... 44
Defendant’s Expert’s Valuation of Stoneybrook ................................................................................ 48
What Is the Proper “Before Value” of Stoneybrook? ......................................................................... 51
Just Compensation for Stoneybrook ................................................................................................... 53
TPC-Prestancia ....................................................................................................................................... 55
Plaintiffs’ Expert’s Valuation of TPC-Prestancia ............................................................................... 55
Defendant’s Expert’s Valuation of TPC-Prestancia ........................................................................... 60
What Is the Proper “Before Value” of TPC-Prestancia? .................................................................... 63
Just Compensation for TPC-Prestancia............................................................................................... 64
Arielle ..................................................................................................................................................... 64
Plaintiffs’ Expert’s Valuation of Arielle ............................................................................................. 66
Defendant’s Expert’s Valuation of Arielle ......................................................................................... 70
What Is the Proper “Before Value” of Arielle? .................................................................................. 73
Just Compensation for Arielle............................................................................................................. 75
JMC ......................................................................................................................................................... 76
What Is the Proper “Before Value” of JMC? ...................................................................................... 76
Just Compensation for JMC ................................................................................................................ 76
Palmer Ranch .......................................................................................................................................... 78
Plaintiffs’ Expert’s Valuation of Palmer Ranch.................................................................................. 79
Defendant’s Expert’s Valuation of Palmer Ranch .............................................................................. 83
What Is the Proper “Before Value” of Palmer Ranch? ....................................................................... 86
Just Compensation for Palmer Ranch ................................................................................................. 86
Pine Ranch East ...................................................................................................................................... 90
Plaintiffs’ Expert’s Valuation of Pine Ranch East .............................................................................. 90
Defendant’s Expert’s Valuation of Pine Ranch East .......................................................................... 94
What Is the Proper “Before Value” of Pine Ranch East? ................................................................... 97
Just Compensation for Pine Ranch East ............................................................................................. 98
Calusa Lakes ........................................................................................................................................... 99
Plaintiffs’ Expert’s Valuation of Calusa Lakes................................................................................. 100
Defendant’s Expert’s Valuation of Calusa Lakes ............................................................................. 103
3
What Is the Proper “Before Value” of Calusa Lakes? ...................................................................... 106
Just Compensation for Calusa Lakes ................................................................................................ 108
The Childers Property ........................................................................................................................... 108
What Is the Proper “Before Value” of the Childers Property? ......................................................... 109
Just Compensation for the Childers Property.................................................................................... 109
The Marlin Property .............................................................................................................................. 109
What Is the Proper “Before Value” of the Marlin Property? ............................................................ 110
Just Compensation for the Marlin Property ...................................................................................... 110
The Davids Property ............................................................................................................................. 110
Plaintiffs’ Expert’s Valuation of the Davids Property ...................................................................... 111
Defendant’s Expert’s Valuation of the Davids Property................................................................... 114
What Is the Proper “Before Value” of the Davids Property?............................................................ 116
Just Compensation for the Davids Property ...................................................................................... 117
The Mirman Property ............................................................................................................................ 117
Plaintiffs’ Expert’s Valuation of the Mirman Property..................................................................... 118
Defendant’s Expert’s Valuation of the Mirman Property ................................................................. 121
What Is the Proper “Before Value” of the Mirman Property? .......................................................... 124
Just Compensation for the Mirman Property .................................................................................... 124
The Glueck Property ............................................................................................................................. 125
What Is the Proper “Before Value” of the Glueck Property? ........................................................... 125
Motion to Strike Expert Testimony Regarding Buffering on the Glueck Property .......................... 125
Just Compensation for the Glueck Property ..................................................................................... 130
Conclusion ................................................................................................................................................ 133
Appendix A: Northern Segment of Palmer Ranch DRI ............................................................................ 135
Appendix B: Southern Segment of Palmer Ranch DRI ............................................................................ 136
Appendix C: Aerial View of TPC ............................................................................................................. 137
Appendix D: Aerial View of Arielle ......................................................................................................... 138
Appendix E: Arielle Conceptual Development Plan ................................................................................ 139
Appendix F: Plat for Arielle ..................................................................................................................... 140
Appendix G: Aerial View of JMC ............................................................................................................ 141
Appendix H: Aerial View of Palmer Ranch ............................................................................................. 142
Appendix I: Aerial View of Pine Ranch East ........................................................................................... 143
Appendix J: Aerial View of Calusa Lakes ................................................................................................ 144
4
Appendix K: Aerial View of the Glueck Property .................................................................................... 145
5
WILLIAMS, Judge.
This Fifth Amendment taking case comes before the Court following a trial on damages.
Plaintiffs, landowners of 13 separate properties in Sarasota, Florida, seek just compensation
stemming from the imposition of a recreational trail across their properties pursuant to the Rails
to Trails Act.1 Specifically, Plaintiffs seek $8,703,800, representing $4,938,200 for the
encumbrance of the trail and $3,765,600 in severance damages. Defendant asserts that
compensation should be limited to the encumbrance, which it claims is properly valued at
$2,220,900. The Court awards just compensation in the amount of $5,701,579.73 representing
$4,706,047.56 for the land encumbered by the corridor plus severance damages of $995,532.17.
Findings of Fact2
On April 2, 2004, the Surface Transportation Board (“STB”) issued an order authorizing
a “rail-to-trail” conversion of a railroad right-of-way in Sarasota County, measuring 12.43 miles
long. Plaintiffs’ land abuts this right-of-way, and the conversion resulted in a recreational trail
easement on Plaintiffs’ properties measuring 50 feet wide.3 No railroad traffic had moved over
this railroad line since March 2002. Rogers v. United States, 90 Fed. Cl. 418, 421 (2009).
After the STB authorized the conversion, the railroad tracks and ties were removed, the
rail line was graded, and the County paved an asphalt trail. The resulting trail is known as the
Legacy Trail. There are benches and public restrooms at various points along the trail and trail
heads that afford public access. Sarasota County estimates that between 125,000 and 140,000
people use the trail annually. PX 20B (BB-PLTF-12332).
1
The Court granted Plaintiffs’ motion for class certification in Rogers v. United States,
No. 07-273L, on November 21, 2007. On December 14, 2007, this Court consolidated Rogers v.
United States, No. 07-273L, and Bird Bay Executive Golf Course, Inc., No. 07-426L. In
December 2009, the Court consolidated Rogers, Bird Bay, and Bay Plaza v. United States, No.
08-198L, for proceedings on liability and decertified the class in Rogers at Plaintiffs’ request.
Subsequently, this Court severed the claims of the following Plaintiffs from the consolidated
actions: Calusa Lakes Community Association, Inc., Patricia M. Davids, Ilene Mirman, Pine
Ranch East Owners Association, Inc., Pulte Home Corporation, Stoneybrook Golf & Country
Club of Sarasota, Inc., and TPC-Prestancia, Inc. These landowners are seven of the Plaintiffs
named in Bay Plaza.
This Court also severed the claims of the following Plaintiffs in Bird Bay from the
consolidated action: Nathan and Deborah Childers, A. Merle Clark Glueck Trust, JMC Real
Estate Holdings, LLC, Dennis T. and Mary Ann Marlin Revocable Trusts, Mission Valley Golf
& Country Club, Inc., and Palmer Ranch Holdings, Ltd.
2
These findings of fact are derived from the record developed during a seven-day trial on
damages. The Court also conducted a site visit of the properties and the trail with counsel for
both parties. The Court uses “PX” and “DX” to designate trial exhibits and “Tr.” to cite trial
testimony. Citations to exhibit page numbers are to the Bates numbers assigned to a given page.
3
Findings of fact detailing the 13 individual properties are in the Discussion.
6
The 13 subject properties are located in Sarasota County in Florida, east of U.S. Route 41
and west of Interstate 75. PX 10. All of the properties are located within the urban services
boundary, the area where utilities are available and development is encouraged. Tr. 769-72, 801;
PX 11. On the date of the taking, three of the properties were golf courses, four contained a
single-family residence, four were vacant lots, one was being developed as a residential
subdivision, and one was an automobile salvage yard. Landowners whose residences abut the
trail testified that noise, traffic, and instances of trespass and property damage increased because
of the trail, and Plaintiffs submitted analyses indicating that the fair market value of properties
adjacent to a corridor were 16-28% lower than properties off the corridor. Tr. 66-70, 93-97, 124-
26; PX 13, PX 20B (BB-PLTF-12335 to 122336, BB-PLTF-12340); see also Tr. 254-56.
Several of the properties are within or adjacent to the area subject to the Palmer Ranch
Development of Regional Impact (“DRI”) Code, which imposes obligations concerning traffic,
road use, environmental implications, and permissible uses. Specifically, Florida law requires a
large development, which “because of its character, magnitude, or location, would have a
substantial effect upon the health, safety, or welfare of citizens of more than one county,” to have
guidelines and standards for development, referred to as a DRI. Fla. Stat. § 380.06(1) (2011). A
DRI provides benefits to landowners because it allows more flexibility in how the site is
configured and can allow for denser development than would otherwise be permissible. Tr. 806-
07. The Palmer Ranch DRI requires residential developments to be developed as planned unit
developments -- areas “zoned for a single-community subdivision with flexible restrictions on
residential, commercial, and public uses.” Black’s Law Dictionary 1268 (9th ed. 2009); see also
Tr. 805-06.4
Chad Durrance, Plaintiffs’ expert real estate appraiser, described Palmer Ranch as
follows:
The community is a master planned community, and the type of development for
the most part is single family detached, single story for the most part. The
market, the people that are buying there, are retired or golf course communities,
gated, secured, that type of community. Suburban residential is how I’d refer to
it, and it’s rapidly developing out.
Tr. 239-40.5 Developments within the Palmer Ranch DRI must comply with the Palmer Ranch
4
Maps of the Palmer Ranch DRI area depicting 12 of the 13 subject properties can be
found in Appendices A, the Northern Segment of Palmer Ranch DRI, and B, the Southern
Segment of Palmer Ranch DRI .
5
In the related matter McCann Holdings, Ltd. v. United States, No. 07-4261L, the Court
admitted Mr. Durrance as an expert in the field of real estate appraisal in Sarasota County. The
parties stipulated to Mr. Durrance’s expertise in this case. Tr. 185. Mr. Durrance has been a real
estate appraiser for over 20 years and has appraised over 1,000 properties, including properties in
Sarasota County. He has testified in eminent domain proceedings approximately 12 times.
McCann Holdings, Ltd. v. United States, No. 07-4261L, 2013 WL 3326646, at *6 n.6 (Fed. Cl.
June 27, 2013).
7
Code and are subject to approval from the Palmer Ranch Planning and Architectural Review
Board. Tr. 991-96; DX 21 (BB-PLF-18050).
In 2003, Sarasota County changed its zoning laws to facilitate smart growth. Tr. 775.
Crystal Allred, Plaintiffs’ expert on long-range planning and zoning in Sarasota County, who
worked for Sarasota County for 24 years as a Project Manager and Project Planner, testified that
to encourage smart growth, Sarasota County revised its comprehensive plan and issued an
updated future land use map in 2004, establishing limits on the allowable development density
for areas of the County. Tr. 766; PX 11, PX 33.6 For example, residential areas were designated
low-density (less than two dwelling units per acre), moderate-density (between two and five
dwelling units per acre), medium-density (between five and nine dwelling units per acre), or
high-density residential (between 9 and 13 dwelling units per acre). PX 11. Land was also
categorized by zoning district, such as residential single family-1, with a maximum of 2.5
dwelling units per acre, or open use estate-1, with a maximum of one dwelling unit per five
acres. PX 36. In assessing a rezoning petition, the County considered the future land use
designation to be more important than the current zoning designation or district. Tr. 791. As
such, if the property’s future land use designation permitted development at a density greater
than permitted under its current zoning designation, the County would likely permit rezoning to
allow denser development, consistent with the future use designation in the comprehensive plan.
See Tr. 792-97.
Discussion
Jurisdiction
The Tucker Act confers jurisdiction on this Court “to render judgment upon any claim
against the United States founded either upon the Constitution, or any Act of Congress or any
regulation of an executive department, or upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. §
1491(a)(1) (2006). Here, Plaintiff alleges a taking under the Fifth Amendment of the United
States Constitution, which is a money-mandating provision. Schooner Harbor Ventures, Inc. v.
United States, 569 F.3d 1359, 1362 (Fed. Cir. 2009).
Legal Standards Governing Just Compensation
Plaintiffs’ property was taken when the railroad easement on Plaintiffs’ land was
6
The Court admitted Ms. Allred as an expert in long-range planning and zoning in
Sarasota County. Tr. 766. Ms. Allred is currently a public sector project planner for
WilsonMiller Stantec. Tr. 752, 758. She holds a bachelor’s degree in sociology and a master’s
degree in urban and regional planning from Florida State University. Tr. 753; PX 32. The
subject of her Master’s thesis was DRIs on the Florida coast. Tr. 753-54. Ms. Allred worked for
the Sarasota County Planning Department for 24 years, where she was a Project Manager and a
Project Planner. PX 32. While employed by the County, she worked on updating the
comprehensive plan, amending zoning regulations, critical area plans, corridor plans,
revitalization plans, and rezoning petitions. Tr. 755-56. Ms. Allred managed the County’s
division responsible for processing rezoning and special exception petitions. Tr. 756.
8
converted to a recreational trail easement under the Rails to Trails Act. Rogers, 90 Fed. Cl. at
433. The Act preserves shrinking rail trackage by converting unused railroad rights-of-way to
recreational trails. Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 5-6 (1990); see also
16 U.S.C. § 1241 et seq. (2006). In a rails-to-trails case, the imposition of a recreational trail
creates a new easement for a new purpose across the landowner’s property, which constitutes a
taking entitling the landowners to just compensation. Preseault v. United States, 100 F.3d 1525,
1542-43 (Fed. Cir. 1996) (en banc). Under the Trails Act, through a process known as
“railbanking,” the government retains jurisdiction for possible future railroad use. Caldwell v.
United States, 391 F.3d 1226, 1229 (Fed. Cir. 2004).
Just compensation should be carefully tailored to the circumstances of the case, and this
determination typically requires expert testimony. The Court has discretion in adopting a
methodology that awards a takings plaintiff just compensation. Otay Mesa Prop., L.P. v. United
States, 670 F.3d 1358, 1369 (Fed. Cir. 2012); Washington Metro. Area Transit Auth. v. United
States, 54 Fed. Cl. 20, 36 (2002) (“[I]n dealing with a thorny issue of valuation, it is for this court
to ‘synthesize in its mind . . . the record before it, determine to what extent opinion evidence
rested on facts, consider and weigh it all, and come up with figures supported by all the evidence
. . . .’”) (alteration in original) (quoting United States v. N. Paiute Nation, 183 Ct. Cl. 321, 346
(1968)). The landowner “is entitled to be put in as good a position pecuniarily as if his property
had not been taken. He must be made whole but is not entitled to more.” Olson v. United States,
292 U.S. 246, 255 (1934); see also Kimball Laundry Co. v. United States, 338 U.S. 1, 20 (1949).
“Where the property interest permanently taken is an easement, the ‘conventional’
method of valuation is the ‘before-and-after’ method, i.e., ‘the difference between the value of
the property before and after the Government’s easement was imposed.’” Otay Mesa, 670 F.3d
at 1364 (quoting United States v. Va. Elec. & Power Co., 365 U.S. 624, 632 (1961)). In addition
to the value of the property actually taken, just compensation includes severance damages -- the
diminution in value in the owner’s remaining property resulting from the taking. United States
v. Miller, 317 U.S. 369, 376 (1943) (“If only a portion of a single tract is taken, the owner’s
compensation for that taking includes any element of value arising out of the relation of the part
taken to the entire tract.”); see generally United States v. Grizzard, 219 U.S. 180, 185 (1911)
(“When the part not taken is left in such shape or condition as to be in itself of less value than
before, the owner is entitled to additional damages on that account.”). Plaintiff has the burden of
proof with respect to severance damages and must offer evidence that the remainder lost market
value. Miller v. United States, 223 Ct. Cl. 352, 383-84 (1980); see also Hendler v. United States,
175 F.3d 1374, 1383 (Fed. Cir. 1999); United States v. Honolulu Plantation Co., 182 F.2d 172,
179 (9th Cir. 1950).
The cost to cure -- or the cost of mitigating damages caused by the taking -- provides an
alternative means of quantifying severance damages. It is well established that “[w]hen the cost
of curing the injury to the remainder is less than the outright diminution in its value uncured, the
government may pay the cost of cure.” United States v. 2.33 Acres of Land, 704 F.2d 728, 730
(4th Cir. 1983) (citing United States v. Dickinson, 152 F.2d 865, 870 (4th Cir. 1946), aff’d, 331
U.S. 745 (1947)). As the author of one treatise explained:
It must be cautioned that the cost to cure, while admissible for the purpose of
establishing just compensation, does not create individual rights to damages.
Rather, it is merely evidence of the effect of the taking on market value, and
9
therefore on diminution in value of the remainder. The cost to cure approach is
available only to the extent that the actual cost to cure is less than or equal to the
diminution in value of the remainder, such that evidence of the cost to cure is
admissible only when the cost to cure is no greater than the diminution in value of
the remainder if the condition is left uncured.
4A Julius L. Sackman, Nichols on Eminent Domain § 14A.04[2][a] (rev. 3d ed. 2013) (footnotes
omitted).
Appraisals of the Subject Properties
The parties retained appraisers to value the subject properties before and after the taking.
Both appraisers properly used April 2, 2004, the date of the Notice of Interim Trail Use, as the
date of the taking. Rogers, 90 Fed. Cl. at 428. However, the appraisers disagreed on their
appraisals of nine of Plaintiffs’ properties and certain methodologies and appraisal principles.7
Chad Durrance appraised the subject properties for Plaintiffs using a qualitative
comparable sales analysis and assuming that zoning changes were reasonably probable. In
contrast, John Underwood, Defendant’s expert, appraised the subject properties using a
quantitative comparable sales analysis, and applying the zoning and use restrictions in effect on
the date of the taking.8 Mr. Underwood also applied a large-lot discount to the prices of large
properties.
The Experts’ Methodologies
Quantitative Versus Qualitative Comparable Sales Analysis
In a comparable sales analysis, the appraiser identifies sales of similar properties in a
given market. There are two types of comparable sales analysis: quantitative and qualitative. In
a quantitative analysis, the appraiser makes numerical adjustments based on the component parts
of a property. In a qualitative analysis, the appraiser compares properties without making
numerical adjustments. The appraiser evaluates the comparable properties, deems each property
similar or dissimilar to the subject property with respect to specific factors, assigns each property
an overall rating, and then ranks the properties based on the similarities. Tr. 1465-66, 668-69.
Defendant, citing the Uniform Standards for Federal Land Acquisition, also known as the
7
The appraisers agreed on the valuation of the Glueck property at $200,000 per acre, and
for three properties, Childers, Marlin, and JMC, Plaintiffs’ appraiser valued the properties lower
than Defendant’s expert. Based on the record as a whole, the Court accepts Plaintiffs’ valuations
for the Childers, Marlin, and JMC properties.
8
The Court admitted Mr. Underwood as an expert in real estate appraisal in Sarasota
County in McCann Holdings, Ltd. v. United States. The parties stipulated to Mr. Underwood’s
expertise in this case. Tr. 1437. Mr. Underwood has been a real estate appraiser for over 30
years and has been qualified as an expert witness in federal court approximately 50 times.
McCann Holdings, 2013 WL 3326646, at *8 n.13 (Fed. Cl. June 27, 2013).
10
“Yellow Book,” argues that Mr. Durrance’s appraisals are flawed because he performed
qualitative analyses. The Yellow Book states: “[o]nly when adequate market data does not exist
with which to support quantitative adjustments should the appraiser resort to qualitative
adjustments (i.e., inferior, superior).” Uniform Standards for Federal Land Acquisition 21 (The
Appraisal Institute, 5th ed. 2000).9 Mr. Durrance testified as to why he used the qualitative
approach:
If I have a reason for a percentage adjustment or some kind of basis for it, sure,
you can do that. But again, real quickly, what an appraiser -- what I’m trying to
do is to mimic the market, how would the market react. And the market does not
walk around with a clipboard and a summary chart like this and put minus 15 plus
20 is how this property stacks up to this property. They look at all the available
comparable properties, and what it is they want to buy or sell, and say, how does
this property stack up to the others.
Tr. 455.
Dr. Kilpatrick, Plaintiffs’ expert in appraisal practice standards and methodology, opined
that the qualitative approach was superior here because Plaintiffs’ properties were large tracts
with “multiple interlocking complex attributes, and it would be overly judgmental of an appraiser
to try to separate those attributes out and give a marginal value to each one of them.” Tr. 669-
70.10 Dr. Kilpatrick further testified that quantitative comparable sales analyses are appropriate
for appraising detached single-family properties. Tr. 670.
The Court concludes that for the most part Mr. Durrance’s qualitative analysis was more
persuasive, because he provided a more compelling analysis regarding how the pertinent features
9
The Uniform Standards for Federal Land Acquisition is produced by the federal
government and is intended to provide “general principles applicable to the appraisal of property
for federal land acquisitions by both voluntary means and condemnation.” Uniform Standards for
Federal Land Acquisition 1. The Uniform Standards of Federal Land Acquisition was originally
published in 1971, the fifth edition was published in 2000, and portions of the book are in the
record as Defendant’s Exhibits 58, 59, and 60 and Plaintiffs’ Exhibit 50.
10
The Court admitted Dr. Kilpatrick as an expert in appraisal practice, appraisal
standards, and appraisal methodology. Tr. 656. He is the president and CEO of Greenfield
Advisers, which provides expert testimony, high-amenity property appraisal, and wealth
management services. Tr. 647-48. Dr. Kilpatrick holds an undergraduate degree in accounting,
a master’s degree in business administration with a concentration in real estate economics, and a
doctorate in real estate finance from the University of South Carolina. Tr. 643. Dr. Kilpatrick is
a licensed real estate appraiser in Florida and 25 other states. Tr. 644. He is a certified national
appraisal standards instructor and teaches appraisal methods. Tr. 645. He has authored four
books and over 100 articles and papers. Tr. 646.
11
of a property would affect the price a buyer was willing to pay.11 Plaintiffs’ expert better
assessed features a knowledgeable buyer would consider, such as allowable density, the presence
of environmental lands, and the impact of easements or encumbrances. Mr. Durrance also better
accounted for market conditions by using the contract date, rather than the closing date of a
given property sale. In contrast, Mr. Underwood’s quantitative approach did not as thoroughly
address important considerations such as development restrictions, particular land use
restrictions, and features that impose additional costs, and he used only the closing date for most
sales. Additionally, the experts appraised Plaintiffs’ properties as vacant, with residential and/or
mixed-use development as the highest and best use. As Dr. Kilpatrick testified, the qualitative
approach is preferred for vacant properties while a quantitative approach is better for detached
single-family properties. Tr. 669-70.
Appraisal Principles
The Propriety of Applying a Large-Lot Discount
Defendant’s appraiser, Mr. Underwood, adjusted the price per acre of the comparable
properties for size. Specifically, he decreased a property’s per-acre price by 20% per 100 acres,
and applied this adjustment to properties with sizes of up to 200 acres. Mr. Underwood applied a
large-lot adjustment to the comparable properties used in appraising six of Plaintiffs’ properties,
as follows:
Property Size of Property as Adjustment Applied to Comparable
Appraised Properties
Calusa Lakes 138.75 acres -25 to 10%
Palmer Ranch 123.442 acres -20 to 15%
JMC 229.427 acres -35 to 0%
Mission Valley 175.165 acres -30 to 5%
TPC 201.903 acres -35 to 0%
Stoneybrook 123.322 acres -20 to 15%
Mr. Underwood testified that the adjustments were necessary because as acreage
increases, the price per acre decreases. Tr. 1484. To determine the appropriate adjustment, Mr.
Underwood used paired sales analyses of four properties, ranging from 20.80 to 199.44 acres.
Tr. 1485-86; DX 50 (US-BB001690). Based on these properties, Mr. Underwood determined
that a 100-acre difference in size resulted in a difference in price per acre ranging from 16.1 to
21.6%. DX 50 (US-BB001692). Mr. Underwood looked at sales of large properties in Manatee
County and concluded that a 100-acre difference in size correlated with a difference in price of
24 to 32%. He also considered sales of large and small properties in southern Sarasota County
and found the difference in size correlated with a 19% difference in price per acre. Tr. 1487-88.
Mr. Underwood acknowledged that southern Sarasota County and Manatee County were
11
The exception is the Davids property where the Court found Mr. Underwood’s
comparative analysis and valuation more persuasive because he focused on a comparable sale
that was more similar to the subject property than any of Mr. Durrance’s comparables.
12
different markets than the market in which the subject properties are located. Tr. 1487-88.
Nonetheless, based on these analyses, Mr. Underwood concluded that for up to 200 acres, a 100-
acre difference in size required a 20% adjustment. Tr. 1489-1490. He did not apply an
adjustment for properties over 200 acres, finding that 200 acres was the “break point” because
developers paid the same price per acre for a 210-acre property as they did for a 275-acre
property. Tr. 1489-90. Mr. Underwood also made an adjustment for parcels ranging from 10 to
20 acres, which he derived using the same type of analysis, but the adjustment was smaller --
five percent. Tr. 1491; DX 50 (US BB001838).
Plaintiffs’ experts disagreed with Mr. Underwood’s size adjustment. Mr. Durrance
agreed that a size adjustment is appropriate in some cases, such as where there is an abundance
of large tracts. However, in the subject market there were few large tracts of land, and
developers have purchased smaller parcels and put them together to create larger developments.
Tr. 241. Mr. Durrance testified that a large lot offers flexibility:
[I]f you have a tract of land and there’s a significant difference and the market is
paying significantly higher prices, well then you’re going to cut off a chunk of
your land and sell it in a smaller chunk. So the larger parcel gives you the ability
to do that or keep it together and develop it as one overall planned development. I
mean, it gives you flexibility.
Tr. 241. In a similar vein, Dr. Kilpatrick opined:
I can tell you that in terms of large tracts of development land here in the suburbs
of Sarasota, I don’t see the rationale for a discount. And the simple fact is, there
are enormous economies of scale associated with larger subdivisions.
In other words, it’s frankly easier on a per-house basis to develop a hundred acre
tract than a 20 acre tract. And there are plenty of potential buyers out there for
hundred acre tracts.
Tr. 672.
Dr. Kilpatrick also disputed the numerical adjustment Mr. Underwood applied, testifying:
I couldn’t find what I thought was good support for it. It’s sort of a step variable
thing whereas he says if it’s over, and I can’t remember the exact arbitrary limits,
but if it’s over 20 acres, he’s just going to discount it 10 percent.
If it’s over 50 acres, he’s going to discount it 25 percent. If it’s over 100 acres,
he’s going to discount it 30 percent or something like that, and that seems to be
just sort of a personally developed model. As I testified a little earlier, I don’t see,
as an appraiser, the rationale for size discount model in suburban Sarasota
County, and I know both of these appraisers are from Florida.
Tr. 694-95.
Mr. Underwood’s broad application of rather substantial large-lot discounts does not take
into account the factual circumstances under which Plaintiffs’ properties could have been sold.
13
See e.g., N. Paiute Nation, 183 Ct. Cl. at 346 (recognizing that the trial court is charged with
assessing whether a valuation amount is “supported by all the evidence.”). Here, there is no
evidence that Plaintiffs would have been restricted to selling their large lots in one transaction or
as one parcel, as Mr. Underwood conceded. Tr. 1642; see also Tr. 241, 672, 694-98. Moreover,
it is settled law that land should be appraised at its highest and best use. Olson, 292 U.S. at 255(“The sum required to be paid the owner does not depend upon the uses to which he has devoted
his land but is to be arrived at upon just consideration of all the uses for which it is suitable.”);
see also Snowbank Enters., Inc. v. United States, 6 Cl. Ct. 476, 484 (1984) (“Any and all factors,
which would cause a reasonable seller to ask a higher sale price for the property and which
would induce a reasonable buyer to pay a higher sale price for the property, should be
considered.”). As such, the Court finds that Mr. Underwood’s large-lot discounts were
unwarranted here.
The Propriety of Considering Use Restrictions
The parties disagree about whether the appraisers should have considered use restrictions
that applied to Plaintiffs’ properties on the date of valuation, April 2, 2004, which affected their
development potential or the highest and best use. Mr. Durrance did not consider any public or
private deed restrictions when he appraised the subject properties. Neither did Mr. Underwood
when he initially appraised the properties in mid-2010, and 2011. See DX 52A (US-BB002957)
(appraisal report for TPC Prestancia dated July 1, 2010); DX 53A (US-BB002677) (appraisal
report for Stoneybrook dated June 29, 2010), DX 54A (US-BB003358) (appraisal report for
Arielle dated December 30, 2011), DX 55A (US-BB003274) (appraisal report for Pine Ranch
East dated December 30, 2011), DX 56A (US-BB002586) (appraisal report for Calusa Lakes
dated June 29, 2010). However, in February 2012, Defendant’s trial attorney sent Mr.
Underwood the following legal instruction:
Consistent with the Uniform Appraisal Standards for Federal Land Acquisition,
and in particular Section B-23, I instruct you to consider each of the subject
properties in its condition and situation at the time of the alleged taking, including
any zoning and use restrictions applicable to each specific property. Zoning
ordinances and use restrictions are of critical importance because they may
restrict the uses to which the property may be lawfully devoted.
DX 49 (US-BB001637).
After receiving the instruction and re-reviewing his original appraisal reports, Mr.
Underwood issued another set of appraisal reports, concluding that the highest and best use for
six of the properties changed because of counsel’s instruction. Tr. 1461-62. Specifically, Mr.
Underwood determined that five properties were subject to open space restrictions that precluded
residential development and that a sixth property could not be developed because it was subject
to a private deed restriction, as listed below:
1. The plat for Pine Ranch East designated certain land as open space. PX 41; DX 3;
2. For Arielle, environmentally sensitive lands were set aside for preservation in the
ordinance approving the development. See DX 18 (US-RB007502), DX 19 (US-
14
RB006161);
3. For Calusa Lakes, the plats and the covenants, conditions, and restrictions for the
development designated land as open space, a drainage area, and a wetland preserve and
stated that the provisions would “bind the TOTAL LANDS of CALUSA LAKES . . . for
a term of ninety-nine (99) years from the date this COMMUNITY DECLARATION is
recorded.” DX 36 (US-PR000151 to 000152, US-PR000173);
4. For Stoneybrook, the ordinance approving the development required that common areas
be set aside as open space for 99 years, and the covenants, conditions, and restrictions for
the development designated a portion of the common areas for a golf course. DX 29
(US-RB006630);
5. For TPC, the resolution approving the development required that land be set aside as
parks and a golf course for 99 years, and the covenants, conditions, and restrictions for
the development designated lands to be used accordingly. DX 30 (BB-PLTF-15879), DX
31 (BB-PLTF-15809 to 15810);
6. Mission Valley may have been subject to a private deed restriction, requiring that the
property be used for a golf and country club complex. PX 6.
Mr. Underwood concluded that land without development potential sold for 15% of the
price of similar developable land -- or 85% less -- and decreased his original valuation of five
properties. Tr. 1498. The amount of the reduction ranged from $114,700 to $24,275,700 per
property. PX 49. In all, the total decrease that resulted from applying the use restrictions was
$92,676,400. PX 49.
Mr. Underwood acknowledged that originally he did not consider use restrictions because
he followed the unit rule, stating:
And to begin with, I had valued all six of them just like the other seven under the
unit rule, fee simple, assuming they could be put to the highest and best use based
on the comprehensive plan. And my conclusion was residential development.
Tr. 1462. Under the “unit rule” referenced by Mr. Underwood, an appraiser does not consider
partial or fractional ownership interests. Instead, the appraiser appraises the property as one
undivided fee that is owned and controlled by a single interest. The Yellow Book explains the
unit rule:
[T]he unit rule requires that property be valued as a whole rather than by the sum
of the values of the various interests into which it may have been carved, such as
lessor and lessee, life tenant and remainderman, and mortgagor and mortgagee,
etc. This is an application of the principle that it is the property, not the various
interests, that is being acquired. Many cases illustrate the unit rule, thus, if there
are several interests or estates in the property, the property should be valued as a
whole, embracing all of the rights, estates, and interests of all who may claim, and
as if in one ownership. The market value of the whole property is later
15
apportioned among those who hold various interests in the property, but this
apportionment generally falls outside the scope of the government appraiser’s
assignment.
DX 58 (Uniform Standards for Federal Land Acquisition 53-54 (footnote omitted). As the
author of one treatise explains:
The unit rule requires that real estate be valued in respect to its gross value as a
single entity as if there was only one owner. There are two aspects to the unit
rule: (1) there can be no separate valuation of improvements or natural attributes
of the land; and (2) the manner in which the land is owned or the number of
owners should not affect the value of the land. The unit rule is designed to protect
the condemnor.
4 Nichols on Eminent Domain § 13.01[16] (footnotes omitted). The unit rule was the primary
reason Mr. Durrance did not consider use restrictions in appraising these six properties. Tr. 383.
Mr. Underwood testified that the restrictions affecting Plaintiffs’ properties were
easements appurtenant and therefore an exception to the unit rule. Tr. 1464. An easement
appurtenant is “[a]n easement created to benefit another tract of land, the use of easement being
incident to the ownership of that other tract.” Black’s Law Dictionary 586 (9th ed. 2009).
However, Mr. Underwood did not explain why the public and private use restrictions on
Plaintiffs’ properties constituted easements appurtenant or why they should be analyzed as
exceptions to the unit rule. Defendant did not present any testimony, documentary evidence, or
legal authority supporting Mr. Underwood’s conclusion that the use restrictions on Plaintiffs’
properties were exceptions to the unit rule.
Mr. Underwood further testified he would not have rewritten the appraisal reports if he
had not received the legal instruction from Defendant’s counsel:
Q And then you testified that between December of 2011 and
February at some point 2012 for six of the properties you rewrote the appraisal
reports in response to Mr. Larson’s letter of instruction, is that correct?
A It’s a legal instruction, that’s correct.
Q And apart from Mr. Larson’s legal instruction would you have
rewritten those appraisal reports?
A No, sir.
Tr. 1611.
In the view of Dr. Kilpatrick, Plaintiffs’ expert in appraisal practice standards and
methodology, Mr. Underwood’s revision of his initial appraisal reports was flawed because there
can only be one unique market value for a given property, and counsel’s instruction did not alter
the market value Mr. Underwood initially derived. Tr. 1698-1701. However, as Mr. Underwood
acknowledged, he applied these use restrictions not because he believed them to be mandated as
16
a matter of appraisal methodology, but as a matter of law. Tr. 1616-18 (“[I]t takes me to is there
a deed restriction in place which I guess might be a legal question.” Tr. 1618). As such, the
Court addresses Mr. Underwood’s revised appraisals, turning first to the private deed restriction.
The Efficacy of a Private Deed Restriction
Mission Valley Golf and Country Club is a private country club that owns a 174.716-acre
property (“Mission Valley”), with an 18-hole golf course, clubhouse, and maintenance buildings
in Sarasota County. Tr. 118, 1473; PX 24B (BB-PLTF-11835 to 11836); Joint Status Report,
Oct. 19, 2012. In 2004, there was no residential development on the property. See PX 24B (BB-
PLTF-11829). Mission Valley is west of Calusa Lakes and north of Mission Valley Estates, two
residential developments. Tr. 119-20. In 2004, the property was zoned open use estate-1, and
designated moderate-density residential under the comprehensive plan, allowing development at
two to five units per acre. PX 24B (BB-PLTF-11833).
The parties dispute whether Mission Valley was subject to a private deed restriction that
would have prohibited development of the golf course on the date of the taking. In 1969, Louise
C. Ewing conveyed 143 acres of property to Mission Valley Golf and Country Club, and the
deed provided:
Grantee shall not use said property for any purpose other than recreational
purposes, it being understood between the parties hereto that the use of the land
shall be for a golf and country club complex and other similar recreational
purposes.
No housing or similar type of development shall be permitted by grantee on the
property herein described.
PX 6. On January 6, 1992, the Circuit Court for Sarasota County issued an Amended Final
Judgment in Ewing v. Mission Valley Golf & Country Club, Inc., Case No. 90-1580-CA-01, which
addressed the deed restriction. The judgment stated in relevant part:
2. The parties entered into a binding contract through protracted
negotiations whereby $100,000.00 was to be paid to Edward J. Ewing as personal
representative of the Estate of Louis C. Ewing. Four honorary memberships were
to be given to Ewing, and, in return, Ewing was to execute a deed releasing the
estate interest in the property.
***
5. Upon defendant’s full performance under this Amended Final
Judgment, plaintiff shall execute and deliver a deed to defendant releasing the
estate’s interest in the property.
PX 7.
On December 9, 1994, a quitclaim deed was executed, which provided:
By this Deed, Grantor intends to release all rights with respect to the property
described above, including without limitation any right Grantor may have had to
17
repurchase the property and all other rights of grantor, its successors and assigns,
arising under that certain Deed dated May 9, 1969, from Louise C. Ewing to
Grantee, recorded in O.R. Book 844, at page 709. . . .
PX 8. However, this quitclaim deed was not recorded until February 24, 2012, over seven years
after the taking. Tr. 133; PX 8.
Plaintiffs contend that Sarasota County would not have considered any private deed
restrictions in acting on a rezoning petition if a developer sought to rezone Mission Valley’s golf
course for residential development as of the date of the taking in April, 2004. Pls.’ Post-Trial Br.
103-04. Pursuant to the unit rule, Mr. Durrance did not appraise Mission Valley as subject to
this private deed restriction, explaining:
Q And in terms of this specific property, were you aware that it was
encumbered by, at one point in time, a deed restriction?
A Yes, sir.
Q And so that would be something that you had in your work files
and you considered when you derived your opinion as to the value of this
property?
A That is correct.
Q Was it your understanding that this property was still encumbered
by that deed restriction in April 2004?
A No. My understanding is it was not.
Q And even if it had been encumbered by the deed restriction, how
would a deed restriction that limited the development of the property to only a
golf course, how would that have [a]ffected your appraisal?
A Well, as a private restriction in that manner, you’d go back to the
unit rule or the undivided fee, and if you have two private parties with an interest
in it, appraise the undivided fee, and if one interest hold[s] X percent of the value,
and the other private interest holds the remaining percent of the value, well that’s
a matter that can be apportioned at a later date, but the undivided fee as a vacant
and available to be put to its highest and best use is the methodology that I
followed.
Tr. 382-83.
In valuing Mission Valley in April 2004, Mr. Durrance opined that residential
development would have been the highest and best use. Tr. 382-84. Dr. Kilpatrick agreed with
Mr. Durrance, testifying:
Q And you’ve heard the testimony in this case about the Mission
Valley Country Club, is that correct?
18
A Yes.
Q And there was testimony about an original deed restriction in 1969.
Do you recall that testimony?
A I do.
Q And then you recall the testimony with some exhibits where that
was released in 1992 and 1994?
A I do, and it’s a two-part problem. I mean, (1) there’s evidence that
I’ve seen that the deed restriction was no longer valid, enforced or a matter to be
of interest to us, which then raises the question why did he consider it in the first
place. I mean, it’s just a total red herring; and (2) even if I had never seen the
release, the unit rule tells me I’m supposed to ignore it because it’s not part of the
thing to be considered here.
The original deed restriction simply constituted in effect, from an
appraisal perspective, an easement on the property, which is to be ignored for
purposes of determining the damage according to the take.
Tr. 710-11.
Mr. Underwood himself in his initial appraisal had considered the deed restriction, and
that restriction did not affect his original valuation. Tr. 1617. With respect to Mission Valley,
Mr. Underwood testified:
Q So apart from [counsel’s] letter you would not have looked at a use
restriction when you valued Mission Valley property, is that correct?
A That’s correct. In the original report I specifically stated that there
was a deed restriction in place that restricted its use to a golf course, but that I was
not looking at that private restriction in my valuation.
Tr. 1617-18. Additionally, Ms. Allred credibly testified that the County does not consider
private deed restrictions in considering a rezoning petition, and a private deed restriction would
not have affected a landowner’s ability to rezone a property. Tr. 802-03.
Richard Bass, Defendant’s expert in land use planning, testified that the County would
have considered the deed restriction because the restriction affected whether the owner had
unified control of the property. Tr. 1224-26.12 Specifically, Mr. Bass opined that an heir to the
12
The Court admitted Mr. Bass as an expert in land use planning. Tr. 1069. Mr. Bass is
a consultant with Bass & Associates, Inc. PX 45. He is also a special hearing magistrate for the
Value Adjustment Board of Sarasota County, where he hears appeals from property owners
concerning property tax assessments. Tr. 1035. Mr. Bass holds a bachelor’s degree in urban
planning and environmental management from Florida International University. Tr. 1028. He
previously worked at the Dade County Planning Department and as a consultant with a firm that
provided land planning services for localities without internal planning departments. Tr. 1031.
19
Ewing family estate or a landowner with property abutting the golf course could have sued to
enforce the restriction in the 1969 deed. Tr. 1229-30.13 However, Mr. Bass testified that when
he initially gathered information about Mission Valley in 2010, at Mr. Underwood’s request, he
had obtained a report that stated Mission Valley could be developed with 344.6 units, and he
believed the report contained true and accurate information. Tr. 1272-74. Jerry Gray, the
planning director of Sarasota County from 1983-2003, provided Mr. Bass with the report. Tr.
1270-71.
The Court concludes that Mission Valley should be appraised without the deed
restriction. Defendant has not established that the deed restriction encumbered the property in a
way that would have affected the valuation of the property in 2004. Defendant’s reliance on the
deed restriction ignores both the unit rule and the County’s practice in rezoning. Under the unit
rule, as mandated by the Yellow Book and other appraisal authorities, the appraiser must assume
unified control and ownership without competing partial interests, such as a third party who
might seek to enforce the 1969 Ewing restriction. See Tr. 382-83, 709-11. Further, the Court
credits Ms. Allred’s testimony that the County would not have considered a private deed
restriction if a landowner submitted an application to rezone the property. Tr. 802-03; see also
Tr. 1281-82. Mr. Durrance and Dr. Kilpatrick articulated persuasive opinions that the unit rule
required an appraiser to ignore the private deed restriction in valuing the property. Both Mr.
Bass and Mr. Underwood, Defendant’s experts, fully aware of the deed restriction, initially
appraised Mission Valley applying the unit rule and concluded that the deed restriction had no
impact on the property’s valuation. Tr. 1617, 1272-74. As such, the Court finds that Plaintiffs’
expert appropriately valued Mission Valley ignoring the deed restriction.
Public Use Restrictions and the Ability to Rezone Property in Sarasota County in
2004
Five of Plaintiffs’ properties were subject to public use restrictions limiting development,
and changing such a restriction would have required a rezoning of the property. For three of the
properties, the covenants, conditions, and restrictions governing the development would also
have needed to be changed. Whether these five properties should be appraised giving effect to
the use restrictions depends on whether the properties could have been rezoned and whether the
governing covenants, conditions, and restrictions could have been amended. See Tr. 802-04,
1042-43, 1075-78.
Mr. Bass drafted comprehensive plans and zoning regulations for small governments in Florida.
Tr. 1031-33. Mr. Bass has assisted landowners in preparing and filing rezoning petitions in
Sarasota County. Tr. 1038-40. Mr. Bass is a member of the American Institute of Certified
Planners. PX 45. He has testified in federal and state courts as an expert in land use planning
and zoning. PX 45.
13
However, in his appraisal report, which was filed in conjunction with Plaintiffs’ motion
in limine, Mr. Bass referenced the restriction but did not mention the potential of anyone suing to
enforce the restriction. He concluded that rezoning was not reasonably probable but did not
articulate the reasons for this opinion.
20
Rezoning
Sarasota County’s zoning regulations limited the density of development allowed on a
property on a per-acre basis. For example, a parcel designated residential single-family-2 was
permitted 3.5 dwelling units per acre. Tr. 781. All acreage over which the owner had control
was considered for purposes of calculating permitted density, such as wetlands within the
property, but land under a county road or a recreational trail was not considered. Tr. 781-82.
Additionally, the County’s comprehensive plan established future land use designations that set
forth density classifications. Tr. 795; PX 36. Dr. Kilpatrick explained that a comprehensive plan
“is a longer term view of where the jurisdiction wants land in this area to go,” that typically takes
into account demographic changes, and the anticipated need for schools, roads, shopping centers,
offices, warehouses, and hospitals. Tr. 664. Density permitted under a property’s zoning district
could not exceed the density allowed by its future land use designation in the comprehensive
plan. Tr. 796-97.
A landowner could petition to change his property’s zoning designation or to replat the
property. Ms. Allred testified that it was a routine process to rezone properties so that their
zoning district better comported with the comprehensive plan -- for example, changing a
property zoned open use estate-1 to residential single-family- 1, 2, 3, or 4. She testified:
When Sarasota County [officials] adopted their future land use map, they didn’t
simultaneously rezone all those properties to be consistent. It was anticipated that
property owners would come and rezone when they had, you know, everything,
the infrastructure, and a willing seller, yes.
Tr. 799-800. If a zoning change petition was denied, the landowner could file another petition
one year later, and the Board frequently waived this one-year requirement. Tr. 789. Ms. Allred
credibly testified that Sarasota County processed approximately 80 rezoning petitions in 2004,
and approved 80 to 90% of them. Tr. 791.
The County’s zoning regulations required large developments to set aside some areas as
open space. Tr. 773-76; DX 15. The regulations in effect in 2004, when the taking occurred
provided that urban planned unit developments required a minimum of 30% open space. DX 15
(Sarasota County Code § 6.11.1). Habitat preservation areas, wetlands, buffering zones, and golf
courses all qualified as open space. Tr. 778-80.
Defendant argues that Pine Ranch East, Arielle, Calusa Lakes, Stoneybrook, and TPC-
Prestancia were subject to a 99-year open space restriction under the Sarasota County Zoning
Code, DX 15 (Sarasota County Code § 6.11.1), and that Calusa Lakes, Stoneybrook, and TPC-
Prestancia were subject to 99-year open space restrictions under the covenants, conditions, and
restrictions governing the developments. For example, the covenants, conditions, and
restrictions for Stoneybrook provided:
16.1 Duration of Covenants. The covenants, conditions, easements and
restrictions in this declaration shall run with and bind the property within the
community and shall inure to the benefit of and be enforceable by the county, the
community association, the declarant and any owner, their representative, legal
representative, heirs, successors and assigns for a period to expire on the 99th
21
anniversary of the date of recording of the master declaration in the public records
of Sarasota County, Florida.
DX 29 (US-RB006643); see also DX 28 (US-RB006589), DX 31 (BB-PLTF-15830 to 15831),
DX 37 (US-PR000174). Ms. Allred testified that the 99-year open space requirement was
intended to apply to habitat preservation areas -- not golf courses or parks -- and that is how it
has been implemented. Tr. 780.
As Dr. Kilpatrick testified, when a property is subject to a zoning or use restriction on the
date of the taking, the appraiser must determine whether a change in that restriction would be
reasonably probable. Tr. 662-63. In Dr. Kilpatrick’s view, it would be appropriate for an
appraiser to assume that a property could be rezoned consistent with Sarasota County’s
comprehensive plan. Tr. 667.
Dr. Kilpatrick testified that in appraising the properties with the zoning or use restriction
in place, Mr. Underwood did not appraise the properties at their highest and best use. Tr. 709.
Additionally, Dr. Kilpatrick characterized the 99-year requirement as arbitrary and criticized Mr.
Underwood for assuming that it limited development, testifying that “as an appraiser, to presume
that 99 years is etched in stone tablets is simply fallacious. There’s absolutely no support for that
in the empirical reality in which we live.” Tr. 716-17.
Defendant’s expert in land use planning, Mr. Bass, testified that the County had a policy
of preserving open space once it had been set aside and would not have ignored open space
restrictions that had been recorded with the County via the filing of plats or covenants,
conditions, and restrictions. Tr. 1255, 1176-95 (discussing the ordinance that authorized
development of Stoneybrook and the associated open space restrictions);14 see also Tr. 1197-
1223 (discussing the incremental development order and declaration of covenants, conditions,
and restrictions that applied to TPC-Prestancia and designated areas as open space).
However, Mr. Bass also acknowledged that a property subject to a 99-year open use
restriction in a zoning ordinance, such as Stoneybrook, could be rezoned if there was unified
control over the property:
Q Now, the 99 year restriction you were referencing was found in
documents related to a 1989 rezoning petition. Is that correct?
A I’d have to review it, but I believe in Stoneybrook it was in the
documents.
***
Q So is it your view that this property would be restricted and could
not be developed for anything or rezoned for another use until 2088?
14
In this context, the ordinance is not a generally applicable ordinance. Rather, the
ordinance was specific to Stoneybrook, enacted in response to a rezoning petition for
Stoneybrook. See DX 27.
22
A Again, I think my responses related to unified control and
ownership in order to file a rezone, so whatever year that they could gain unified
control and ownership to file a rezone.
Q But that 99 year restriction is still in the record, isn’t it?
A It is.
Q Well, how would I go about getting rid of it?
A Gain unified control and ownership of the acreage that was
rezoned under that rezone petition by legal description. Once you’ve gained
unified control and ownership you can then proceed to file a rezone.
Q When you’re saying unified control and ownership, what do I need
to do to obtain unified control and ownership?
A I need to own all of the property, have unified control of the
property I wish to rezone. If it’s Stoneybrook then it’s the entirety of
Stoneybrook that was previously rezoned.
***
Q So we assume all the lot owners would have a common interest in
this property, correct? That’s your understanding?
A Yes.
Q So we assume all the lot owners basically were members of the
corporation that owned the legal title of this property? Is that correct?
A Yes.
Q Okay. If we assume that they all agreed to let us try to rezone 4.5
acres of our property so we can sell it for residential use and use the money for
our association, if you accept that assumption would that then allow this to be
rezoned?
A Allow what to be rezoned?
Q The property so that we could take a portion of this land in
Stoneybrook and rezone it for residential development.
A Okay. Under your hypothesis what we’d have to do is file a
corrected deed in order to include the new acreage, file a rezone petition for the
entirety of the new legal description to bring in this land to make it consistent
with the zoning, the special exception or the conditions that are applicable in the
current time, 2004, and proceed through the rezoning process.
Q And assume we did proceed through that process. Would that then
allow this property to be rezoned for residential development or a portion of it?
23
A Under your hypothetical condition, yes.
Tr. 1288-91.
Plaintiffs argue the five properties should be appraised without use restrictions because
there was a reasonable probability the County would rezone the properties to allow for denser
development. Defendant contends that the five properties should be appraised with use
restrictions, claiming that Plaintiffs confuse rezoning a property with removing a use restriction,
and arguing that Plaintiffs did not prove there was a reasonable probability that the restrictions
would be changed.
Contrary to Defendant’s assertions, the removal of a use restriction can be achieved by
rezoning a property. The use restrictions governing Plaintiffs’ properties in 2004 were set forth
in the instruments authorizing development on each property. Rezoning a property would create
a new ordinance, resolution, or incremental development order, which would replace the prior
instrument authorizing the development that contained the use restriction, and the property
would no longer be subject to the open space restriction. Tr. 1288-91.15 As Mr. Bass,
Defendant’s expert, testified, the restriction could be removed by filing a corrected deed, filing a
rezoning petition, and proceeding through the rezoning process. Tr. 1288-91. Thus, removing a
use restriction could be accomplished through the rezoning process.
Defendant further argues that the unit rule, by ignoring use restrictions, would conflict
with the appraiser’s obligation to value the property as it existed on the date of taking. Def.’s
Post-Trial Reply Mem. 8-9. However, it is well settled that valuation of a property on the date
of the taking should take into account a reasonably probable future use. A property owner is
entitled to the fair market value of the property based on its highest and best use. A property’s
highest and best use is not limited to its use on the date of the taking. As the Supreme Court
stated: “[t]he rule is well settled that, in condemnation cases, the most profitable use to which the
land can probably be put in the reasonably near future may be shown and considered as bearing
upon the market value. . . .” McCandless v. United States, 298 U.S. 342, 345 (1936) (citing
Olson, 292 U.S. at 255-56); see also Loveladies Harbor, Inc. v. United States, 21 Cl. Ct. 153, 156
(1990), aff’d, 28 F.3d 1171 (Fed. Cir. 1994) (The highest and best use “is defined by the industry
as, ‘[t]he reasonably probable and legal use of vacant land or an improved property, which is
physically possible, appropriately supported, financially feasible, and that results in the highest
value.’”) (quoting The Appraisal of Real Estate 269 (9th ed. 1987))). Further, a property can be
appraised using a proposed use when there is “a showing of reasonable probability that, at the
time of the taking, the land was both physically adaptable for such use and that there was a need
or demand for such use in the reasonably near future.” Bd. of Cnty. Supervisors v. United States,
276 F. 3d 1359, 1365 (Fed. Cir. 2002). Consideration of a future use is particularly appropriate
here as Ms. Allred testified that rezoning consistent with Sarasota’s comprehensive plan was
15
The Sarasota County Code’s 99-year provision depended upon the instrument
governing the development. Section 6.11(a)(3) provided: “[l]ands designated as open space shall
be restricted by appropriate legal instrument satisfactory to an attorney designated by the Board
of County Commissioners, as open space in perpetuity, or for a period of not less than 99 years.”
DX 15. As such, the 99-year requirement would not be in effect if the instrument containing that
requirement were superseded by rezoning.
24
probable and occurred routinely.
In sum, Plaintiffs have established there was a reasonable probability that the properties
subject to use restrictions could be rezoned for residential development if the use restrictions
were not intended to preserve habitats. Ms. Allred credibly testified that when Sarasota County
reviews a rezoning application, it considers the property’s future land use designation and current
zoning district and gives more weight to the future land use designation. Tr. 791. Defendant’s
expert, Mr. Underwood, concurred that the County’s primary concern is the property’s future
land use designation in the County’s comprehensive plan, stating that “[a] zoning change
conforming to the [future land use designations] is automatic.” DX 54 (US-BB003629)
(appraisal of Pulte); see also DX 50 (US-BB001680 to 001681) (appraisal of Mission Valley);
DX 55 (US-BB001828) (appraisal of Pine Ranch East), DX 56 (US-BB001531) (appraisal of
Calusa Lakes). The five properties that Defendant claims must be appraised subject to open
space restrictions are all designated moderate-density residential -- a designation both parties’
experts agreed would be taken into account in a rezoning application. Mr. Bass, Defendant’s
expert on land use planning, acknowledged Plaintiffs’ properties could be rezoned if there was
unified control and ownership. Tr. 1288-91. Importantly, Ms. Allred testified that for purposes
of deciding whether to rezone a property, Sarasota County did not consider an open space
restriction unless the restriction was implemented to preserve habitats. Tr. 780, 802-03. As
explained more fully below, the Court finds Plaintiffs’ properties should be appraised without
use restrictions, with the exception of Arielle and Calusa Lakes where the restrictions were
directed at habitat preservation.
The Taking’s Effect on the Fair Market Value of Properties Adjacent to the Trail
Plaintiffs’ Paired Sales Analysis
Plaintiffs contend that the imposition of the Legacy Trail negatively affected the value of
properties adjacent to the trail. In conducting his “after taking” valuation, Plaintiffs’ appraiser,
Mr. Durrance, conducted two paired sales analyses to quantify the effect of the trail on the value
of properties adjacent to it. In a paired sales analysis, an appraiser compares two properties that
are alike except for one characteristic. Any difference in the price is attributed to the
characteristic that differs, which allows the appraiser to isolate the effect of that variable. Mr.
Durrance compared sales of vacant lots on and off the railroad corridor to isolate the effect of the
corridor. Tr. 250; PX 13.16 The railroad was sparsely used during the time period these two
subdivisions were developed, in the 1990’s, but nonetheless was operating. PX 16B (BB-PLTF-
12089).
In the first paired sales analysis, Mr. Durrance used 15 sales of vacant lots that occurred
in 1998 and 1999, within Mission Estates, a residential community near the subject properties,
which was built before the railroad corridor was abandoned. Tr. 251-52. The lots within the
development were almost exactly the same size. Tr. 251. Eight of the lots were located on the
corridor, while seven were off the corridor. Mr. Durrance found that lots on the corridor sold for
an average of $35,288, and lots off the corridor sold for an average price of $48,914. Tr. 254;
PX 13. Mr. Durrance concluded that the $13,625 difference -- 28% -- or $170 per lineal foot,
16
Although some properties had homes (Marlin, Childers, Mirman, Davids), both parties’
experts appraised them as vacant.
25
was due to the railroad corridor. PX 13, PX 15B (BB-PLTF-12924 to 12929).
Mr. Durrance conducted a similar paired sales analysis of properties within Bay Oaks
Estates, a residential community near Plaintiffs’ properties. Tr. 255. He analyzed 16 sales of
vacant lots in 1994 and 1995. PX 13, PX 15B (BB-PLTF-12924 to 12929). Nine of the
properties were located on the corridor, and seven were off the corridor. He found that lots on
the corridor sold for an average of $42,100, while properties off the corridor sold for an average
of $50,000, a difference of approximately $8,050 -- 16% -- or $130 per lineal foot. Tr. 256; PX
13, PX 15B (BB-PLTF-12924 to 12929). Based on the Mission Estates and Bay Oaks Estates
paired sales analyses, Mr. Durrance determined that the railroad corridor had a negative effect on
property values ranging from 16% to 28%. PX 15B (BB-PLTF-12924 to 12929).
Plaintiffs’ Anecdotal Evidence
Plaintiffs also offered lay opinion testimony from area residents to support their position
that the trail had a negative effect on property values. Anthony Rolfes, a resident of Pine Ranch
East and president of the Pine Ranch East Homeowners’ Association, testified that he observed
people camping and lighting bonfires on the association’s land near the trail. Tr. 67. He also
testified that someone cut a hole in the barbed wire fence that runs along Pine Ranch East
between the property and the trail. Tr. 67. Mr. Rolfes testified that the main impact of the trail
has been increased traffic, requiring the association to install speed bumps on Pine Ranch East
Road. Tr. 69-70.
Patricia Davids, a plaintiff in Bay Plaza v. United States, No. 08-198L, also testified
about the Legacy Trail’s impact. The Legacy Trail abuts the eastern edge of her property,
extending 641 lineal feet and encumbering 0.737 acres. PX 15B (BB-PLTF-12896). When
asked how the trail has affected her enjoyment of the property, she testified:
It’s totally eroded my serenity or my security in living there. It has just absolutely
devastated my way of life. I live alone, and it’s always a matter of is someone in
your backyard. Is someone coming onto your property? The noise is constant.
It’s like living more on a major highway.
Tr. 94. Ms. Davids further testified that she used to walk on her property on a daily basis, but
now she would like to “run away from home.” Tr. 94. Ms. Davids testified that the trail has
caused a “drug area” to the south, with motorized scooters, firecrackers, and boom boxes. Tr.
96. She also said that it has become difficult to exit the neighborhood because of the increased
pedestrian and bicycle traffic. Tr. 95. She now keeps her house closed up because of the noise
from the trail. Tr. 96.
George Dellos, the president of the Mission Valley Board, testified that the Legacy Trail
is visible from Mission Valley’s golf course. Tr. 121. Mr. Dellos testified about the invasive
Brazilian pepper trees that border the trail: “[a]esthetically it looks terrible. It’s a lot of bramble
and tangled trees, and it cuts out all other vegetation that might flourish that might be under those
trees. So aesthetically it’s very unattractive.” Tr. 121. Mr. Dellos explained that people using
the trail are loud, which disrupts golfers playing at Mission Valley. Tr. 124. Mr. Dellos also
testified the trail has led to occasional trespassers who walk across the golf course and use the
club’s facilities. Tr. 125-26.
26
Plaintiffs’ Evidence on Potential Future Uses of the Legacy Trail
Plaintiffs contend that the Legacy Trail negatively impacted property values because of
the possibility that the railroad corridor could be reactivated. Mr. Rolfes testified that at county
commission meetings, people discussed the possibility of developing light rail or a busway on
the corridor. Tr. 68. Mr. Rolfes testified he would “probably get out of there before that
happened.” Tr. 68. In his appraisals of Plaintiffs’ properties, Mr. Durrance considered that the
corridor could be converted to other transportation uses. Tr. 317; see PX 20B (BB-PLTF-
12332).
Because a prudent buyer would consider possible future uses, Mr. Durrance opined that
any appraisal of the Plaintiffs’ properties should as well. Tr. 319. Mr. Durrance listed the
following contemplated future uses in his appraisal reports: transit use, transportation, an
extension of the Bus Rapid Transit, commuter rail passenger rail service within existing CSX
tracks linking Venice with Sarasota and Bradenton, and joint use of the corridor for transit and
bicycling. See PX 20B (BB-PLTF-12332 to 12333); see also PX 21B (BB-PLTF-13041 to
13042), PX 22B (BB-PLTF-12570 to 12571). Dr. Kilpatrick agreed that it was appropriate to
consider potential future uses of the corridor. Tr. 681-82.
Defendant’s Paired Sales Analysis
Mr. Underwood conducted his own paired analysis to refute Plaintiffs’ claim that the
Legacy Trail negatively affected the value of properties adjacent to the trail. Mr. Underwood
located trails throughout Florida and compared properties on a trail with nearby properties not on
a trail. Tr. 1502-03; see generally DX 51. Mr. Underwood considered 38 properties -- 21 that
sold in 2002-2005, on or near the Pinellas Trail, which is located near St. Petersburg, Florida; 17
located near Orlando, Florida -- 11 on or near the Cady Way Trail that sold in 2007-2009; and 6
on or near the West Orange Trail that sold in 2006-2007. DX 51. For each pairing, Mr.
Underwood identified a property sale on a trail and compared it with the sale of a similar
property in the same neighborhood and within the same time frame but not on a trail. Mr.
Underwood testified: “my conclusion was that there’s no definitive answer and that the data is
not telling me positively one way or the other that there is a negative impact or a positive impact.
And that it’s looking like it’s more neutral than anything else.” Tr. 1505. Specifically, he found
that 9 pairings showed that properties off the trail were worth more than those on a trail, 14
pairings indicated that properties off the trail had a lower value, and 7 pairings had a price
differential of less than 3%, which Mr. Underwood deemed statistically insignificant. Tr. 1504-
05. Mr. Underwood acknowledged that there was a difference between being adjacent to a trail
and near it, but he maintained that his analysis showed that adjacency to the recreational trail did
not have a negative impact.
Defendant’s Trail Impact Studies
In addition, Mr. Underwood considered trail studies that he found on the internet. Tr.
1506. In two of the studies, the researchers surveyed landowners with property immediately
adjacent to the trail and landowners who owned property off the trail. Tr. 1507. According to
Mr. Underwood, the internet studies showed that some people did not like being adjacent to the
trail while others valued the adjacency. Mr. Underwood did not testify about details of the
internet studies, such as location or time period.
27
Defendant also offered expert testimony from Charles Blanton, a transportation and urban
planner.17 Mr. Blanton has worked on recreational trail projects since 1993. He has developed
concept plans for recreational trails in several Florida jurisdictions. Tr. 1390-91. He conducted
the Pinellas Trail Community Impact Study for the Pinellas County Metropolitan Planning
Organization, which was published in 2000. Tr. 1390; DX 46. Pinellas County is approximately
50 miles north of Sarasota County, across Tampa Bay. In the study, Mr. Blanton analyzed home
sales and appraised property values of single-family homes over a multi-year period to see if the
Pinellas Trail impacted property values. Tr. 1403. He also sent surveys to people who resided in
single-family homes within a quarter-mile of the trail. Tr. 1403-04. Mr. Blanton defined
adjacency to the trail as being within a five-minute walk from the trail. Tr. 1407. As a third
component of the study, Mr. Blanton interviewed 20 realtors in Pinellas County about whether
the trail made properties more marketable. Tr. 1410. Of the 14 realtors who offered opinions,
13 believed that properties located closer to the trail were more marketable. Tr. 1410-11.
Based on his study and survey, Mr. Blanton determined that recreational trails have a
positive impact on the value of properties adjacent to the trail. Specifically, he found that the
median sales price of homes within a five-minute walk of the trail increased by 7.83%, while
prices for homes in the county increased by 4.67%, over a 3% difference. Tr. 1407; DX 46 (US-
RBL000041).
Mr. Blanton also reviewed studies from southwestern Ohio conducted in 2003-2005,
Delaware, Marion County, Indiana in 1999, and Austin, Texas in 1999-2001, and determined
that the majority of studies found that trails had a positive effect on property values and, at worst,
a neutral effect. DX 44 (US-RBL000001, US-RBL000006 to 000007). The studies Mr. Blanton
reviewed are not in the record.
Defendant’s Anecdotal Evidence
Defendant presented evidence regarding public perceptions of trails. Mr. Underwood
interviewed Bart Bartholomey, the lead sales agent for a residential community that abuts the
Cady Way Trail in Orlando, Florida. Mr. Bartholomey told Mr. Underwood “there was no
distinction in price for those properties that abutted the Trail, as opposed to those that did not.”
DX 51 (US Ex. 000004 to 000006). Further, Mr. Bartholomey reported that while some
potential purchasers did not want to buy properties abutting the trail, an equal number of people
preferred trail-adjacent properties because they thought the trail would increase property values.
DX 51 (US Ex. 000004 to 000006).
17
The Court admitted Mr. Blanton as an expert in the field of transportation planning.
Tr. 1393. He holds a bachelor’s degree in journalism from the University of Florida and
completed the course work for a master’s degree in urban and regional planning at Florida State
University. Tr. 1385-86; DX 43. He is the founding principal and owner of Renaissance
Planning Group, a transportation and urban planning firm that primarily provides services to
public agencies at the local, state, regional, and federal levels. Tr. 1382. He has worked in
transportation and urban planning for 22 years. Mr. Blanton teaches courses and seminars on
urban and transportation planning. Tr. 1384. He is a member of the American Institute of
Certified Planners (“AICP”) and has been inducted into the College of Fellows of the AICP. Tr.
1382-83.
28
Defendant’s Evidence on Future Uses of the Legacy Trail
In 2001, Mr. Blanton’s firm conducted a study regarding potential long-term uses of the
Legacy Trail corridor through 2035, known as the 2035 Plan, for the Sarasota/Manatee
Metropolitan Planning Organization. The 2035 Plan is not in the record. The 2035 Plan
investigated whether the rail line could be converted to passenger use and concluded that
conversion to passenger use would not be cost-effective because it would not generate sufficient
usage. Tr. 1417. The elected officials of the Manatee/Sarasota Metropolitan Planning
Organization adopted the 2035 Plan in December 2010, and “[i]t is effectively the law of the
land for how state and federal transportation dollars will get spent. Until this plan is updated or
amended, it is the guiding document.” Tr. 1419-20. Mr. Blanton is confident the Legacy Trail
will not be converted to a busway until at least 2035. Tr. 1421.
Mr. Underwood looked at reports discussing railroads across the country and found that
railroad corridors had been reactivated nine times, at the most, a very low number considering all
of the railroads that had been deactivated. Tr. 1512. Mr. Underwood also spoke to the vice
president of Seminole Gulf Railroad, the railroad that had previously operated along the corridor,
who told Mr. Underwood he did not anticipate a need to restore rail service. Tr. 1512. Based on
his review, Mr. Underwood determined that the potential for rail reactivation did not impact the
sale price of properties adjacent to the corridor. Tr. 1514.
The Court’s Assessment of the Experts’ Opinions on Whether the Legacy Trail Negatively
Impacted Property Values
The record as a whole establishes that the Legacy Trail had a negative impact on the
value of land adjacent to the Legacy Trail. Although Plaintiffs’ expert used properties bordering
an existing railroad easement -- not a recreational trail -- in his paired sales analysis, these
properties were the best data available in the subject locale. Mr. Durrance cannot be faulted for
not using data for sales on and off the Legacy Trail itself when such information was apparently
nonexistent. Nor did Defendant’s expert attempt to do a paired sales analysis of properties on
and off the Legacy Trail itself. Mr. Underwood resorted to paired sales analyses in areas farther
away from the Legacy Trail -- St. Petersburg and Orlando -- and looked at studies published by
an organization that advocates for trails that focused on select trails across the country. Mr.
Blanton examined Pinellas County, 50 miles away from Sarasota County, and trails across the
country.
Dr. Kilpatrick identified problems with Mr. Blanton’s September 2001 study of the
Pinellas Trail and his literature review, pointing out that Mr. Blanton’s literature dealt with
community benefits, as opposed to the impact of a trail on immediately adjacent properties, that
the literature and Pinellas Study had significant methodological flaws, that many of the
projections in the Pinellas Study failed to come true, and that other literature, which Mr. Blanton
failed to cite, countered his projections and claims about a trail’s effect. PX 31 (BB-PLTF-
26987). Dr. Kilpatrick concluded that “a more objective review of these underlying sources
would come to exactly the opposite conclusions from the Blanton Report.” PX 31 (BB-PLTF-
26987) (emphasis in original).
The Court does not deem Defendant’s paired sales and broad based studies by an
advocate of trails, the American Trail Conservancy, to be as pertinent and objective as the paired
29
sales analyses performed by Mr. Durrance on the corridor at issue. In the view of Dr. Kilpatrick,
Plaintiffs’ expert in appraisal practice standards and methodology, whom the Court found to be
knowledgeable and credible, Mr. Durrance’s paired sales analysis exceeded the standards of
good appraisal practice. Tr. 683. Mr. Durrance’s paired sales analysis used over 30 properties
and properties in two different subdivisions that were adjacent, not merely proximate, to the
corridor. Dr. Kilpatrick tested Mr. Durrance’s data using statistical analysis and determined it
was robust. Tr. 686-87. Mr. Durrance’s paired sales analysis better accomplished the goal of a
paired sales analysis -- isolating and quantifying the effect of a single variable, the trail -- than
did Mr. Underwood’s analysis.
Both Mr. Underwood and Mr. Blanton used studies that did not distinguish between
properties directly adjacent to a trail and properties located half a mile away. Tr. 693-94, 720-
21. As Dr. Kilpatrick testified, one could not reliably infer that properties near a trail are
affected in the same manner as properties adjacent to it. Tr. 693-94, 720-21. Further, Mr.
Underwood’s paired sales analysis used some properties adjacent to a trail that had buffering.
Tr. 1504, 1687. Additionally, there were significant differences in the properties that Mr.
Underwood used in his paired sales analysis beyond their location; Mr. Underwood compared
improved properties, as opposed to vacant lots, and the homes differed with respect to age,
number of bathrooms, and yard size. These differences make it difficult to isolate the effect of
the trail.
In sum, the Court finds that the imposition of the Legacy Trail negatively affected the fair
market value of properties adjacent to the trail. Before the taking, Plaintiffs’ properties were
adjacent to a rarely used rail corridor. After the taking, Plaintiffs’ properties were encumbered
with an oft-used recreational trail, which caused residents to experience trespassing, noise,
property damage, litter, and increased traffic. Tr. 67, 69, 94, 95, 124, 126. Mr. Rolfes has
experienced increased traffic, the fence next to the trail has been cut, and people have built
bonfires on the association’s land. Ms. Davids feels insecure in her home and no longer enjoys
being outside. Mr. Dellos explained that golfers at Mission Valley are distracted by noise from
the trail and that people trespass onto the club’s property. As Plaintiffs’ experts testified, the
presence of such problems would undoubtedly affect the amount a knowledgeable buyer seeking
property in this area would be willing to pay. The landowners’ testimony was credible, and
Defendant failed to rebut it with any testimony from landowners or other percipient witnesses.
Furthermore, because of the rail-banking that occurs under the Rails to Trails Act, there is
a possibility that rail or other transit could return to the corridor. The Court recognizes that
elected officials of the Manatee/Sarasota Metropolitan Planning Organization adopted the 2035
Plan, which makes reactivation unlikely in the near future, but they had not adopted the 2035
Plan at the time of the taking -- the Plan was adopted in 2010, six years after the date of
valuation. In 2004, a knowledgeable buyer would likely have considered the potential
reactivation of transit on the corridor and factored that into the price he was willing to pay for the
subject properties.
30
The Diminution in Value to the Remainder Due to the Trail
Plaintiffs seek severance damages for 10 of the 13 properties.18 Plaintiffs do not ask the
Court to award them the 16 to 28% diminution in value Mr. Durrance attributed to the trail based
on his paired sales analyses of Bay Oaks and Mission Estates. Rather, Plaintiffs seek severance
damages measured by the cost of buffering. Defendant argues that Plaintiffs are not entitled to
buffering costs because buffering is not required by law, and the cost to cure via buffering is
greater than the alleged decrease in property value.
The Width of the Buffer
Mr. Durrance contacted two developers, J&J Homes and Neal Communities, regarding
the impact of a recreational trail easement on a residential development. Tr. 263. The
developers told Mr. Durrance that when a residential property abuts an undesirable element, such
as the corridor, they install a buffer to separate the property from that element. Tr. 263.
However, Mr. Durrance did not testify as to the width of buffering these developers would use in
given circumstances.
The Sarasota County Zoning Code contains buffering requirements that depend on the
type of property being buffered and the adjoining land use. For example, under this Code,
property within a residential single-family district that is adjacent to another residential single-
family district does not require any buffering, while a property within a residential single-family
district next to a residential multifamily district requires a buffer with 30% opacity. DX 22 (BB-
PLTF-49785). Sarasota County also requires buffering when properties are adjacent to roads or
parking. Tr. 1097. Properties adjacent to Interstate 75 require 20-foot buffers, while
nonresidential properties adjacent to a local street require a six-foot buffer. Tr. 1099-1102; DX
22 (BB-PLTF-49782). The maximum buffer under the County Code for residential property is
25 feet, where residential property is adjacent to commercial property. Tr. 1097. The County
Code does not require buffering between residential properties and a railroad right-of-way. Tr.
1102.
In addition to the County zoning regulations, developments within the Palmer Ranch DRI
are subject to the Palmer Ranch Development Code. Of the properties where damages for
buffering are at issue, Stoneybrook is the only one within the Palmer Ranch DRI. The Palmer
Ranch Development Code provides:
5.07 LANDSCAPE BUFFER. Applicant shall create, design, construct,
irrigate, and provide for continued maintenance of a minimum 50-foot landscape
buffer wherever his parcel boundary has frontage to a planned or existing external
public road right-of-way. . . .
The landscape design of the buffer areas shall include berming, canopy tree
plantings and ornamental tree and shrub masses. . . . .
DX 21 (BB-PLTF-18064). Under the Palmer Ranch Development Code, a public road right-of-
18
Plaintiffs do not seek severance damages for TPC-Prestancia, Arielle, or Palmer
Ranch.
31
way is characterized as a road-right-of way with “vehicular circulation.” DX 21 (BB-PLTF-
18063). James Paulmann, who coordinated the Palmer Ranch DRI review process for Sarasota
County in the 1980’s and later worked for the owner of the Palmer Ranch DRI, testified that
under the Palmer Ranch Development Code, the Legacy Trail is considered an external public
road right-of-way for which a 50-foot wide buffer is required. Tr. 1013-14. Mr. Paulmann
testified that developments along the railroad right-of-way in the Palmer Ranch DRI, such as
Silver Oak and Deer Creek, were developed with 50-foot buffers, and buffers were used for
aesthetics, public safety, and protection from light and noise. Tr. 1014-1015. In his valuation,
Mr. Durrance used a 50-foot buffer for all properties -- even those not within the Palmer Ranch
DRI -- because the Palmer Ranch Development Code required 50-foot buffers for land adjacent
to the rail-trail corridor. Tr. 279, 524; PX 24B (BB-PLTF-11848 to 11849).
Mr. Durrance investigated the cost of a 50-foot buffer, and based on information
provided by WilsonMiller, a planning and landscape architecture consulting firm, estimated the
cost at $150 per lineal foot. Tr. 273.19 Mr. Durrance used a 50-foot buffer based on the Palmer
Ranch DRI, but he acknowledged that a 50-foot buffer was wider than the typical buffer, stating:
“[a]s shown, the 50-foot wide landscape buffer within Palmer Ranch is an increased buffer than
what is typically required when adjacent to similar residential or interim agricultural acreage.
Differently zoned residential properties with differing densities are typically buffered 10 to 20
feet in width . . . .” PX 15B (BB-PLTF-12928). Mr. Durrance acknowledged that some of the
subject properties contained environmental lands, which provided natural buffering when
adjacent to the trail. Under the Sarasota County Zoning Code, water retention ponds and
wetlands can also be used to buffer properties. PX 34. Mr. Durrance did not attribute damages
to the land adjacent to the corridor that did not require additional man-made buffering.
Defendant contends Plaintiffs are not entitled to the cost of buffering because the
Sarasota County Zoning Code requires buffering a property at the perimeter -- not adjacent to a
recreational trail. Further, Defendant contends the largest buffer required under the zoning
regulations is a 25-foot buffer with 70% opacity. From this, Defendant argues there is no basis
for Plaintiffs’ claim that a 50-foot buffer is required for properties adjacent to the trail.
Plaintiffs counter that the County zoning code is not determinative on what buffering is
required. Mr. Durrance cited the Isles of Sarasota development where there is extensive
buffering near a power line corridor, which the zoning code does not require, but which was
necessary to distance homes from a perceived nuisance. Tr. 277.
The Court recognizes that the Sarasota County Zoning Code did not require buffering on
properties adjacent to the Legacy Trail. However, the Palmer Ranch Development Code
required a 50-foot buffer wherever a “parcel boundary has frontage to a platted or existing
external public road right of way,” and the Legacy Trail was considered such an external public
road. DX 21 (BB-PLTF-18063); Tr. 1013-14. Thus, Plaintiffs have proved they are entitled to
severance damages measured by installing a 50-foot buffer on Stoneybrook because Stoneybrook
was within the Palmer Ranch DRI.
19
WilsonMiller’s estimate was based on the Palmer Ranch Development Code and the
cost of buffering in the Isles of Sarasota, a residential development within the Palmer Ranch
DRI.
32
However, Plaintiffs have not proved that properties outside the Palmer Ranch DRI
required 50-foot buffers. The widest buffer required by the County was 25 feet where residential
properties were adjacent to commercial properties. Even properties adjacent to Interstate 75 only
required 20-foot buffers under the County Code. Mr. Durrance, Plaintiffs’ expert, acknowledged
that a 50-foot wide buffer is an increased buffer beyond what is typically required. PX 15B (BB-
PLTF-12928).
Although Plaintiffs have not made a case for a 50-foot buffer for properties outside the
Palmer Ranch DRI, the Court is persuaded that some buffering would be required. The record
demonstrates that residential developments in the subject area have buffering, particularly when
adjacent to perceived nuisances. Tr. 277. Based on the record as a whole, the Court concludes
that a 25-foot buffer would be sufficient to mitigate the harm from the corridor to properties
outside the DRI. This measurement splits the difference between the competing experts where
Mr. Underwood deemed zero buffering necessary and Mr. Durrance, 50 feet. See Navajo Tribe
of Indians v. United States, 9 Cl. Ct. 336, 409 (1986) (“Splitting the difference is a familiar and
permissible technique, especially where the determinations of qualified opposing experts must be
resolved.”) (citing Ass’n of Am. Publishers, Inc. v. Governors of U.S. Postal Service, 485 F.2d
768, 773 (D.C. Cir. 1973)).
The Cost of Buffering
Joseph Samnik, Jr., Defendant’s expert on landscaping, testified about the costs of
installing 25- and 50-foot buffers with 50% opacity.20 Tr. 1323. He used the Sarasota Zoning
Regulations to determine the number and type of plants required. Tr. 1325-27; DX 41. Mr.
Samnik chose plants that were commonly used and readily available and consulted tree vendors
in the local market to determine the prices. Tr. 1331-33. Mr. Samnik concluded a 25-foot buffer
would cost $58.50 per lineal foot, and a 50-foot buffer, $80.80 per lineal foot. Tr. 1337-38; DX
40.
Defendant alleges Plaintiffs overestimated the cost of buffering. Both parties elicited
testimony of higher or lower costs for buffering, depending on the size and the plants and
materials used. Tr. 272, 1365. The evidence indicates that the cost of a 25-foot buffer in
Sarasota County ranged from $58.80 to $75 per lineal foot, for an average of approximately $67
per lineal foot. See Navajo Tribe of Indians, 9 Cl. Ct. at 409. Because Plaintiffs established that
land adjacent to the corridor was harmed by the taking, buffering the land at $67 per lineal foot
20
The Court admitted Mr. Samnik as an expert on the cost of installing landscaping,
buffers, and berms. Tr. 1322. Mr. Samnik is an arboreal consultant with Samnik & Associates,
where he designs, installs, and maintains berms for developers. Tr. 1306. He has worked in
landscaping for 43 years. Mr. Samnick is a graduate of the Arboriculture Consulting Academy
and has received training from the American Society of Consulting Arborists, the Institute of
Food and Agricultural Sciences at the University of Florida, and the International Society of
Arboriculture. DX 39. Mr. Samnik teaches courses to landscape architects and lectures at
colleges and landscaping conferences. Tr. 1313-15. He is a certified arborist. DX 39. Mr.
Samnick has served as the president of the Association of Eminent Domain Professionals and is
a member of The American Society of Consulting Arborists and the International Society of
Arboriculture. DX 39. Mr. Samnik also appraises plants and has testified as an expert
approximately 20 times. Tr. 1320.
33
for a 25-foot buffer provides a reasonable means to quantify severance damages to the
remainders. Likewise, for Stoneybrook, the evidence indicates that the cost of a 50-foot buffer in
Sarasota County ranged from $80.80 to $150 per lineal foot, for an average of approximately
$115 per lineal foot.
Defendant contends that Plaintiffs cannot recover the cost of buffering as “cost-to-cure”
severance damages because Plaintiffs did not specify the diminution in the value of the
remainder of their properties in dollars because of the trail. In order to obtain cost-to-cure
damages, Plaintiffs must establish that the cost to cure does not exceed the diminution in fair
market value of the remainder of their properties. United States v. 2.33 Acres of Land, 704 F.2d
728, 730 (4th Cir. 1982); United States v. Dickinson, 152 F.2d 865, 870 (4th Cir. 1946), aff’d,
331 U.S. 745 (1947). Based on his paired sales analyses in Bay Oaks Estates and Mission
Estates, Plaintiffs’ expert found that properties adjacent to the trail were worth 16 to 28% less
than properties off the trail, but he did not take the next step and quantify this diminution in
value of each remainder in dollar terms. PX 13. Nonetheless, the record contains a sufficient
basis to conclude that Plaintiffs’ requested cost to cure does not exceed the diminution in value
to the remainders.
Mr. Durrance determined that the Legacy Trail caused a 16 to 28% diminution in the
value of the remainder, or an average diminution of 22%. The cost to buffer the land adjacent to
the trail on Plaintiffs’ properties is less than a 22% diminution in the remainder of all 10
properties at issue as evidenced by the following chart:
The Claimed Cost-to-Cure Compared with the Remainders’ Diminution in Value
Plaintiffs’ Diminution
Claimed In Value of Severance
Original Value per Remainder Damages
Property Acreage Remainder Acre by 22% Plaintiffs Seek
Mission Valley 174.716 172.33 $175,000.00 $6,634,705.00 $311,800.00
Stoneybrook 196.076 191.754 $200,000.00 $8,437,176.00 $302,600.00
JMC 229.4185 221.779 $100,000.00 $4,879,138.00 $1,109,300.00
Pine Ranch
East 16.378 13.63 $190,000.00 $569,734.00 $341,400.00
Caulsa Lakes 60.673 59.4 $175,000.00 $2,286,900.00 $45,300.00
Childers 10.363 9.52 $200,000.00 $418,880.00 $110,100.00
Marlin 11.18 10.443 $200,000.00 $459,492.00 $96,300.00
Davids 13.6095 12.82 $150,000.00 $423,060.00 $103,100.00
Mirman 14.478 13.7 $175,000.00 $527,450.00 $101,700.00
Glueck 23.527 22 $200,000.00 $968,000.00 $199,500.00
See Pls.’ Post-Trial Br. 72. As reflected above, the smallest of Plaintiffs’ properties -- the
Childers property -- had a 9.517-acre remainder worth $200,000 per acre, meaning a 22%
diminution would be $418,748. Plaintiffs seek $110,100 in severance damages for the Childers
property -- far less than the diminution in value. Similarly, for JMC, the largest of Plaintiffs’
34
properties, the 221.7705-acre remainder is valued at $100,000 per acre, meaning a 22%
diminution would equate to $4,878,951. Plaintiffs seek $1,109,300 in severance damages for
JMC -- less than one-quarter of the diminution in value of the remainder.
The Court is persuaded that the adjacency of the Legacy Trail resulted in at least a 22%
decrease in the fair market value of the remainder of the 10 properties at issue. Moreover, the
Court finds that, based on the evidence as informed by the site visit, the trail impacts the entire
remainder of properties of less than 25 acres, and the trail substantially impacts the remainder of
larger properties. The cost of buffering land adjacent to the trail on Plaintiffs’ individual
properties is an appropriate measure of severance damages given that this cost is less than the
diminution in the value of the remainder. Sys. Components Corp. v. Fla. Dep’t of Transp., 14
So. 3d 967, 978 (Fla. 2009) (“Severance damages are part of the constitutional guarantee of ‘full
compensation’ and reimburse the owner for the reduction in value the taking causes to any
remaining land . . . .”). “The cost to cure is a flexible tool. It can be used alone or in conjunction
with the payment of just compensation for any uncured severance damages.” 4A Nichols on
Eminent Domain § 14.02[2][c]. As described below for each individual property outside of the
Palmer Ranch DRI, the Court awards cost-to-cure severance damages measured by 25-foot
buffering at a cost of $67 per lineal foot. For Stoneybrook, which is within the Palmer Ranch
DRI, the Court awards cost-to-cure severance damages measured by a 50-foot buffering at a cost
of $115 per lineal foot.
Just Compensation for Plaintiffs’ Individual Properties
Mission Valley
Plaintiffs’ Expert’s Valuation of Mission Valley
Mr. Durrance appraised Mission Valley and determined the highest and best use was
residential development. Tr. 384; PX 24B (BB-PLTF-11836). While the property was zoned
open use estate-1 on the date of the taking, Mr. Durrance determined that it was reasonably
probable that it could be rezoned for denser development because of its location, size, and the
designation for moderate-density residential development in Sarasota County’s comprehensive
plan. PX 24B (BB-PLTF-11835).
In appraising Mission Valley, Mr. Durrance conducted a comparable sales analysis using
six properties in the same market, which had prices ranging from $140,000 to $260,000 per acre.
The following table summarizes his findings:21
21
This chart reflects the data provided in the table in PX 24B (BB-PLTF-11836-37), Mr.
Durrance’s appraisal report of Mission Valley, except as modified to correct an inconsistency
with respect to Sale 2. Specifically, the entry for the overall comparability of Sale 2 is corrected
to state “similar” rather than “inferior.” The table entitled Land Value Summary and Conclusion
in Mr. Durrance’s appraisal report lists Sale 2 as “inferior.” PX 24B (BB-PLTF-11840).
However, the table entitled Summary Table in the same report, and the placement of Sale 2
above Mission Valley on the qualitative ranking on the Land Value Summary and Conclusion
table indicate that Mr. Durrance found Sale 2 to be similar. PX 24B (BB-PLTF-11836 to
11837).
35
superior.23 When sold, Contract 1 needed to be rezoned to allow for denser development, so Mr.
Durrance appraised it as similar to Mission Valley. Id. He found Contract 1 to be slightly
inferior to Mission Valley with respect to environmental lands because 25 to 30% of Contract 1’s
land was designated as environmental lands, while Mission Valley had less than five percent.
PX 24B (BB-PLTF-11836). Lastly, because neither property had any easements or
encumbrances that impacted potential development, Mr. Durrance rated Contract 1 as similar to
Mission Valley.
Mr. Durrance found that Mission Valley was most similar to Sale 2. While Sale 2 was
under contract in late 2002, the sale involved a substantial assignment fee, so Mr. Durrance rated
the market conditions of Sale 2 as slightly inferior because the fee mitigated the effect of the
weaker market conditions in 2002. PX 24B (BB-PLTF-11839). Mr. Durrance found Sale 2’s
location inferior because it was off an unimproved road and was north of Clark Road, a less
desirable area. Id. He rated Sale 2’s size as slightly superior because it was more than 150 acres
smaller than Mission Valley. PX 24B (BB-PLTF-11838 to 11839). Mr. Durrance determined
that Sale 2 had superior zoning/future land use designations because it allowed for denser
development. PX 24B (BB-PLTF-11836 to 11837). Finally, Sale 2 was similar to Mission
Valley with respect to both environmental lands and easements/encumbrances because Sale 2
had a similar percentage of environmental lands and no significant easements or encumbrances.
Id.
Sale 3 was the one property Mr. Durrance found to be superior to Mission Valley. Sale 3
had better zoning/future land use designations because it allowed for denser development -- 146
multifamily residential units. PX 24B (BB-PLTF-11836 to 11837). Sale 3 also had a slightly
superior location and size because it was east of the Palmer Ranch DRI and more than 150 acres
smaller than Mission Valley. PX 24B (BB-PLTF-11840). Mr. Durrance found Sale 3 and
Mission Valley to be similar regarding environmental lands because they both contained less
than five percent. PX 24B (BB-PLTF-11837). Lastly, Sale 3 was slightly inferior with respect
to easements/encumbrances because approximately 2.3 acres of the property were encumbered
with a perpetual mitigation easement that prohibited development. PX 24B (BB-PLTF-11836 to
11838).
Mr. Durrance found Sale 4 to be similar to Mission Valley with respect to three factors:
market conditions, environmental lands, and easements/encumbrances, because Sale 4 was
contracted in mid-2004, the properties had approximately the same amount of environmental
lands, and neither property had any easements or encumbrances that impacted potential
development. PX 24B (BB-PLTF-11836). Sale 4’s location was slightly superior because it
facilitated infill development -- development of an undeveloped parcel that is surrounded by
existing development. Tr. 772 (“Infill is where you encourage those vacant tracts within the
23
There is an inconsistency within Mr. Durrance’s appraisal report of Mission Valley
concerning the sizes of Contract 1 and Sales 2, 3, 4, and 5. The table entitled Summary Table
characterizes the sizes of these five comparable properties as “slightly inferior.” PX 24B (BB-
PLTF-11837). However, the narrative portion of the appraisal report states “[t]he remaining
sales range between about 15 to 40 acres in size and are considered to be slightly superior to the
subject relative to size . . . .” (emphasis added). The narrative portion is consistent with Mr.
Durrance’s other appraisal reports, indicating that the designation should be “slightly superior.”
38
urban area where you want to see urban-related densities of residential development. . . .”); PX
24B (BB-PLTF-11837). Sale 4’s size also provided a slight advantage because it was almost 150
acres smaller than Mission Valley. PX 24B (BB-PLTF-11836 to 11837). Overall, Mr. Durrance
concluded that Sale 4 was slightly superior to Mission Valley. PX 24B (BB-PLTF-11840).
Mr. Durrance appraised Sale 5 as slightly superior to Mission Valley, finding it similar to
Mission Valley with respect to market conditions and easements/encumbrances because its sale
was contracted near the date of the taking and there were no easements or encumbrances that
impacted development. PX 24B (BB-PLTF-11836 to 11837, BB-PLTF-11840). Mr. Durrance
found Sale 5 had superior zoning/future land use entitlements because it sold with multifamily
zoning in place. PX 24B (BB-PLTF-11836 to 11837). Mr. Durrance opined Sale 5 was slightly
superior with respect to size because it was almost 150 acres smaller than Mission Valley, but
slightly inferior as to location because Sale 5 was located near Interstate 75. PX 24B (BB-PLTF-
11837 to 11838). Finally, he found Sale 5 inferior because 20 to 25% of the property had
environmental lands, 15 to 20% more than Mission Valley. PX 24B (BB-PLTF-11836).
Mr. Durrance appraised Sale 6 as inferior to Mission Valley. PX 24B (BB-PLTF-11840).
Location was the only attribute where Sale 6 had an advantage over Mission Valley because Sale
6 was within the Palmer Ranch DRI. PX 24B (BB-PLTF-11836 to 11838). Sale 6 was similar to
Mission Valley with respect to size and zoning/future land use because it was almost 200 acres
and required rezoning to achieve denser development. PX 24B (BB-PLTF-11836 to 11837).
However, Sale 6 was inferior to Mission Valley in terms of market conditions and
easements/encumbrances because the sale was contracted in mid-2003, when prices were lower,
and the property was encumbered with a power line easement and featured a creek and a mesic
hammock. PX 24B (BB-PLTF-11839).
Mr. Durrance ranked the properties and concluded that four of the comparable properties
were superior or slightly superior to Mission Valley, one property was inferior, and Sale 2, which
sold for $176,000 per acre, was similar. Based on this comparable sales analysis, Mr. Durrance
appraised Mission Valley at $175,000 per acre before the taking. Tr. 384-85.
Defendant’s Expert’s Valuation of Mission Valley
Defendant’s expert, Mr. Underwood first appraised Mission Valley without any use
restrictions and with residential development as the highest and best use. After receiving
counsel’s instruction to consider zoning and use restrictions, Mr. Underwood re-appraised
Mission Valley under the assumption that the entire property would remain a golf course because
of the deed restriction. In the second appraisal, Mr. Underwood appraised Mission Valley with a
golf course as the property’s highest and best use.
Mr. Underwood used quantitative adjustments. Mr. Underwood applied a negative
adjustment to the property’s sale price if a comparison property was superior to Mission Valley.
If the comparison property was inferior to Mission Valley, he applied a positive adjustment to
the comparison’s sale price. Mr. Underwood then used the adjusted prices of the comparison
properties to determine the value of the subject property. The following table summarizes the
39
adjusted the price of Sale A-4 by -30%. DX 50 (US-BB001690, US-BB001692). Finally, Mr.
Underwood found that Sale A-4 had a similar land use designation as the subject property,
requiring no adjustment. DX 50 (US-BB001693). Mr. Underwood adjusted the price of Sale A-
4 by -30%, for an adjusted price of $128,249 per acre.
Lastly, Mr. Underwood analyzed Sale A-13. For location, he increased the price of Sale
A-13 by 10% because it was adjacent to a mobile home park and had limited means of access.25
DX 50 (US-BB001690). Because Sale A-13 was 221.77 acres, larger than Mission Valley, Mr.
Underwood adjusted the price of Sale A-13 upward by five percent to reflect his position that
larger properties sell for less per acre. Tr. 1491-92; DX 50 (US-BB001690, US-BB001692).
For land use regulations, he adjusted the price of A-13 downward by 10% because the sale was
contingent on rezoning the property to a mixed-use planned unit development with multifamily
residential housing -- a better zoning designation than its pre-sale designation for residential
manufactured homes. DX 50 (US-BB001693). Mr. Underwood adjusted Sale A-13 by five
percent, yielding an adjusted price of $89,325 per acre.
Before the adjustments, the sale prices of the comparable properties ranged from $90,000
to $259,712 per acre. After adjustments, the prices ranged from $80,325 to $138,288 per acre.
Tr. 1494. Based on his analysis, Mr. Underwood appraised Mission Valley at $135,000 per acre,
with development potential. Tr. 1495.
Following the instruction of Defendant’s counsel, Mr. Underwood then appraised
Mission Valley with the Ewing deed restriction in place -- limiting the use of the property to a
golf course -- by comparing Mission Valley to sales of noneconomic remainders. Tr. 1497. Mr.
Underwood defined a noneconomic remainder as a property without development potential. Tr.
1497-98. Mr. Underwood compared four parcels with development potential to four similar
parcels in similar locations that did not have development potential. Tr. 1498; DX 50 (US-
BB001695). Parcels without development potential sold for 9.8 to 22.6% of the value of the
comparable properties with development potential. DX 50 (US-BB001695). Mr. Underwood
concluded: “[t]hat tells me if I look at it with the deed restriction in place that it can’t be used for
residential development, and that the development potential is gone, that the site has a value
roughly 15 percent of what our unrestricted value is.” Tr. 1498. Mr. Underwood appraised
Mission Valley at $135,000 per acre with development potential, and at $20,300 per acre, or
15% of $135,000 without development potential. Tr. 1499. Thus, he determined that the total
“before value” of Mission Valley without development potential was $3,555,900. Tr. 1499; DX
50 (US-BB001696).
What Is the Proper “Before Value” of Mission Valley?
Plaintiffs’ expert appraised Mission Valley in the “before” condition, at $175,000 per
acre, and Defendant’s expert appraised it at $20,300 per acre with a use restriction and $135,000
per acre without the restriction. As discussed above, the Court finds Mission Valley should be
appraised without the deed restriction affecting valuation.
25
The chart in Mr. Underwood’s report lists a 10% adjustment for A-13 with respect to
location, while the narrative description states that he made a 30% adjustment. Compare DX 50
(US-BB001690), with DX 50 (US-BB001692).
42
In their appraisals of Mission Valley at $175,000 per acre, and $135,000 per acre,
Plaintiffs’ and Defendant’s experts used four of the same properties in their comparable sales
analyses: Sale 5/A-1, Sale 6/A-2, Sale 3/A-3, and Sale 4/A-4. Mr. Durrance found that the
market conditions for Sale 6/A-2 were inferior to those affecting Mission Valley, while Mr.
Underwood did not make any time-based adjustment, indicating the properties had similar
market conditions. Compare PX 24B (BB-PLTF-11836 to 11837), and DX 50 (US-BB001690).
Mr. Durrance rated Sale 6/A-2 as inferior to Mission Valley because Sale 6/A-2 was contracted
in mid-2003, when market conditions were less favorable, while Mr. Underwood did not make
any adjustments for time because he used the closing date of August 2004, not the contract date.
DX 50 (US-BB001691). In not making an adjustment to Sale 6/A-2 when it should have
received a 1.5% adjustment for each month between the contract date and April 2004, Mr.
Underwood undervalued Mission Valley. Mr. Durrance’s approach is more accurate because the
price of Sale 6/A-2 was set when the sale was contracted -- in 2003 -- and the price reflects the
market conditions at that time -- not the April 2004 date of valuation.
Similarly, Mr. Underwood adjusted the prices of Sale 3/A-3 and Sale 4/A-4 by -9% and -
11%, respectively, because the sales closed after the date of valuation. DX 50 (US-BB001690).
However, these sales were contracted just before or around the date of the taking, and Mr.
Durrance found similar conditions as the subject property. PX 24B (BB-PLTF-11838). In
adjusting the prices of Sale 3/A-3 and Sale 4/A-4 when no adjustment was warranted, Mr.
Underwood improperly inflated the values of the comparison properties. Mr. Durrance’s
approach, using the contract date, better reflects the realities of the market and more accurately
valued Mission Valley.
The appraisers also disagreed about how some of the properties compared in terms of
land use regulations. Mr. Durrance’s analysis addressed three factors related to land use
regulations: zoning/future land use, easements/encumbrances, and environmental lands. Mr.
Underwood assessed the properties in terms of “land use regulations,” which did not provide the
same degree of precision. For instance, Mr. Underwood did not make any adjustments to Sale
6/A-2 to reflect advantages or disadvantages with respect to land use regulations because
Mission Valley and Sale 6/A-2 had “similar zoning and land use designations.” DX 50 (US-
BB001693). Mr. Durrance agreed that the properties were zoned similarly, but rated Sale 6/A-2
as slightly inferior in terms of environmental lands because the property contained 10% more
environmental lands than the subject property. Mr. Durrance rated Sale 6/A-2 as inferior for
easements/encumbrances because Sale 6/A-2 was encumbered by an overhead power
transmission line, had a mesic hammock, and featured a creek -- all of which limited potential
development. PX 24B (BB-PLTF-11838). Similarly, Mr. Durrance determined that Sale 5/A-1
was inferior with respect to environmental lands because 20 to 25% of the property consisted of
environmentally sensitive lands, limiting potential development. PX 24B (BB-PLTF-11836 to
11837). There is no indication in the record that Mr. Underwood considered these factors, and
his failure to consider these factors led him to inflate the values of the comparison properties and
undervalue Mission Valley.
Mr. Durrance more accurately accounted for market conditions and provided more detail
and analysis concerning land use regulations. As such, the Court adopts $175,000 per acre as the
“before value” of Mission Valley.
43
Just Compensation for Mission Valley
Plaintiffs seek $725,200 in damages for the taking as it relates to Mission Valley,
representing $413,400 for the 2.386-acre area encumbered by the corridor and $311,800 for the
cost of buffering land adjacent to the trail.
To arrive at $413,400 for the land encumbered by the easement, Mr. Durrance first
determined that the taking resulted in a loss of 99% of Plaintiffs’ rights in the fee interest, and
Mr. Underwood agreed. Tr. 1500. Because Mr. Durrance appraised Mission Valley at $175,000
per acre before the taking, the loss of 99% of value of the 2.386 acres was $413,400 (2.386 acres
x $175,000 x 0.99).
A 25-foot wide buffer measuring 2,078.36 lineal feet, the length of the corridor on
Mission Valley, would cost $139,250.12. PX 24B (BB-PLTF-11851); Tr. 384-85. Mr. Durrance
assumed that buffering would be needed along the entire length of the corridor because he did
not identify any areas with natural buffering.
Defendant argues just compensation should be limited to the land encumbered by the
easement because the trail did not affect the property’s fair market value. As discussed above,
the Legacy Trail negatively affected the property values of adjacent land. Plaintiffs established
that installing a 25-foot buffer at $67 per lineal foot would mitigate the damage from the trail,
and is a reasonable method of quantifying Plaintiffs’ severance damages. Accordingly, Plaintiffs
are awarded $413,374.50 for the land taken and $139,250.12 in severance damages for a total of
$552,624.62, as just compensation relating to Mission Valley.
Stoneybrook
Plaintiff Stoneybrook Golf & Country Club of Sarasota, Inc. (“Stoneybrook”), owns a
parcel of land which was occupied by a golf course, country club, and homes on the date of the
taking. The property was zoned residential single-family-2 in 2004, and was within the Palmer
Ranch DRI. Tr. 805. The land underlying the trail corridor is 4.322 acres.
Stoneybrook was built pursuant to a rezoning petition, with an ordinance, Ordinance 89-
27, and a resolution, Resolution No. R89-131, approving the development as a special exception
in 1989. Tr. 1176; DX 27, DX 28. Sarasota County approved plans to build a golf course and up
to 1,870 residential units. The declaration of covenants, conditions, and restrictions
(“Covenants”) for Stoneybrook designated open space land for a golf course and stated that the
land would remain a golf course for at least 99 years. DX 29 (US-RB006630). Additionally,
Section 4 of Resolution No. R89-131 provided that land utilized for open space would be
restricted by appropriate legal instruments as open space perpetually or for a period of not less
than 99 years. DX 28 (US-RB006589). The Covenants also stated that all of the provisions in
the Covenants would be in effect for 99 years, but were subject to amendment by at least two-
thirds of the voting interests, or members of the homeowners’ association, present at a vote. DX
29 (US-RB006643 to 006644).
Plaintiffs’ Expert’s Valuation of Stoneybrook
Mr. Durrance determined that the highest and best use of Stoneybrook was residential
development based on the property’s future land use designation, its zoning district, and its
44
smaller than Stoneybrook. Id. Sale 2 was similar to Stoneybrook for zoning because like
Stoneybrook, moderate-density residential development was permitted. Id. Sale 2 had less
environmental lands than Stoneybrook and was therefore superior. Id. Lastly, Sale 2 was similar
to Stoneybook with respect to easements and encumbrances because neither property had any
significant easements or encumbrances. Id.
Mr. Durrance found that Sale 3 was superior to Stoneybrook for one factor, slightly
superior for two factors, and slightly inferior for three factors. He rated Sale 3 superior because
it had a smaller percentage of environmental lands. PX 25B (BB-PLTF-13166). Mr. Durrance
deemed Sale 3 slightly superior for size and zoning because it was substantially smaller than
Stoneybrook and because medium-density residential development was allowed on Sale 3. PX
25B (BB-PLTF-13165 to 13166). Mr. Durrance determined Sale 3 was slightly inferior for three
characteristics: market conditions, location, and easements/encumbrances. PX 25B (BB-PLTF-
13166). Mr. Durrance found Sale 3 sold under slightly inferior market conditions because its
sale was contracted in September 2003 -- a time when demand and prices were lower. PX 25B
(BB-PLTF-131968, BB-PLTF-13195). However, a $1,891,500 contract assignment fee lessened
the extent of the delay’s impact. Mr. Durrance found Sale 3 was slightly inferior for location
because it was adjacent to the Palmer Ranch DRI, not within the DRI as Stoneybrook was. PX
25B (BB-PLTF-13166, BB-PLTF-13168). Finally, he assessed Sale 3 as slightly inferior for
easements/encumbrances because it was encumbered with a perpetual mitigation easement. PX
25B (BB-PLTF-13169).
Mr. Durrance found Sale 4 was superior to Stoneybrook with respect to environmental
lands because Stoneybrook had 20 to 25% more environmental lands. PX 25B (BB-PLTF-
13165). Mr. Durrance rated Sale 4 as inferior for market conditions because its sale was
contracted approximately one year before the taking occurred, when market conditions were less
favorable. PX 25B (BB-PLTF-13166, BB-PLTF-13168). He found Sale 4 to be similar for
location and size because it was located within the Palmer Ranch DRI and was only four acres
larger than Stoneybrook. PX 25B (BB-PLTF-13166, BB-PLTF-13168). Mr. Durrance rated
Sale 4 slightly inferior in terms of zoning/future land use designation because Sale 4 needed to
be rezoned to reach the densities allowed on Stoneybrook. Mr. Durrance found that Sale 4 was
inferior with respect to easements/encumbrances because transmission power lines, a mesic
hammock, and a creek encumbered the property, which constrained potential development. PX
25B (BB-PLTF-13169). Overall, Mr. Durrance rated Sale 4 as inferior to Stoneybrook.
In Mr. Durrance’s view, Sale 5 was slightly superior to Stoneybrook with respect to one
factor, similar for five factors, and inferior for one factor. PX 25B (BB-PLTF-13166). He rated
Sale 5 slightly superior for size because it was more than 150 acres smaller than Stoneybrook
and similar with respect to market conditions because it sold within three months of the taking.
PX 25B (BB-PLTF-13165 to 13166). Sale 5 was similar to Stoneybrook in terms of zoning
because both properties were designated for moderate-density residential development. PX 25B
(BB-PLTF-13168). Stoneybrook and Sale 5 were similar for environmental lands and
easements/encumbrances because they contained approximately the same amount of
environmental lands and neither had any easements or encumbrances that affected potential
development. PX 25B (BB-PLTF-13169). Ultimately, Mr. Durrance appraised Sale 5 as
superior to Stoneybrook.
47
all, he adjusted the price of Sale A-1 by -15%, for an adjusted price of $180,838 per acre. DX 53
(US-BB003782).
Mr. Underwood then compared Sale A-2 with Stoneybrook. He did not make any
adjustments for location because both properties were within the Palmer Ranch DRI. DX 53
(US-BB003784). He increased the price of Sale A-2 by 15% pursuant to the large-lot adjustment
because it was almost 200 acres. DX 53 (US-BB003784 to 003785). Mr. Underwood did not
make any adjustments for land use regulations because the properties were zoned similarly and
had similar future land use designations. DX 53 (US-BB003786). After considering all of the
factors, Mr. Underwood adjusted Sale A-2 by 15%, for an adjusted price of $161,452 per acre.
DX 53 (US-BB003783).
For Sale A-3, Mr. Underwood began with the time-adjusted price of $236,338 per acre,
and did not make any adjustments for location, as Sale A-3 and Stoneybrook were both in the
Palmer Ranch DRI. DX 53 (US-BB003782 to 003784). Mr. Underwood applied a -20%
adjustment because Sale A-3 was 100 acres smaller than Stoneybrook. Lastly, he applied a
negative five percent adjustment for land use regulations because the sale of Sale A-3 was
contingent on rezoning for denser development. DX 53 (US-BB003786). After adjusting for
time by negative nine percent, Mr. Underwood adjusted the sales price of Sale A-3 by an
additional -25% to reflect these differences, resulting in an adjusted price of $177,254 per acre.
DX 53 (US-BB003783).
For Sale A-4, Mr. Underwood began with the time-adjusted price of $183,213 per acre,
and because Sale A-4 was located near Sale A-1, a less desirable area, he applied a 10%
adjustment. DX 53 (US-BB003784 to 003785). Because Sale A-4 was almost 100 acres smaller
than Stoneybrook, following his large-lot adjustment theory, Mr. Underwood applied a -20%
adjustment. DX 53 (US-BB003783 to 003784). He did not make any adjustments for land use
regulations because the zoning and land use designations for Sale A-4 were similar to those of
Stoneybrook. DX 53 (US-BB003786). After adjusting by -11% for time, Mr. Underwood
adjusted Sale A-4 by -10%, resulting in a final adjusted price of $164,892 per acre. DX 53 (US-
BB003782 to 003783).
Finally, Mr. Underwood compared Stoneybrook to Sale A-13, beginning with its time-
adjusted price. He applied a 20% adjustment for location because it was next to a mobile home
development and southeast of major roads, a less desirable location than Stoneybrook. DX 53
(US-BB003784). He made a 15% adjustment for size because Sale A-13 was 221.77 acres,
almost 100 acres larger than Stoneybrook. Mr. Underwood also made a -10% adjustment for
land use regulations because the contract for Sale A-13 was contingent upon rezoning to a
mixed-use planned development with multifamily housing. DX 53 (US-BB003786). The non-
time related adjustments for Sale A-13 totaled 25%, resulting in a final adjusted price of $95,625.
DX 53 (US-BB003782 to 003783).
Mr. Underwood concluded Sale A-2, which sold for an adjusted price of $161,452 per
acre, was the most comparable to Stoneybrook, while Sales A-1 and A-13 were the least similar.
DX 53 (US-BB003786). Based on this analysis, Mr. Underwood appraised Stoneybrook at
$165,000 per acre before the taking without development restrictions. Tr. 1529; DX 53 (US-
BB003786).
50
Mr. Underwood then appraised Stoneybrook with the assumption that it had no other
potential uses than as a golf course. He imposed this restriction because the zoning ordinance
that approved the development did not allocate any residential density to the golf course. Tr.
1526-27. To value Stoneybrook as a golf course, Mr. Underwood utilized the same paired
analysis featuring noneconomic remainders that he created as part of the Mission Valley
appraisal, which provided that a property without development potential was worth 15% of the
value of the same property with developmental potential. DX 53 (US-BB003787 to 003788).
Accordingly, he appraised Stoneybrook at $24,800 per acre. Tr. 1530; DX 53 (US-BB003788 to
003789).
What Is the Proper “Before Value” of Stoneybrook?
The parties dispute whether Stoneybrook was subject to a 99-year open space
requirement. The 99-year open space restriction is set forth in the resolution granting the petition
for a special exception and documented in the Covenants recorded with the County in 1994. DX
28 (US-RB006589), DX 29 (US-RB006630). Mr. Durrance acknowledged the use restriction in
his appraisal report but determined that it had no effect, stating:
The property is subject to the covenants, conditions, and restrictions for the
Stoneybrook Golf and Country Club of Sarasota and identified as Community
Common Areas and Club Common Areas. The private restrictions, imposed on
the property when it was developed, can be removed by a majority vote of the
members.
PX 25B (BB-PLTF-13165). The removal mechanism Mr. Durrance referenced is contained in
the amendments provision of the Covenants. DX 29 (US-RB006643 to 006644).
Mr. Bass, Defendant’s expert in land use planning, opined that Stoneybrook could not be
used for residential development, testifying:
[T]he density’s already been transferred off the golf course, off the common area.
When in rezoning process, you’re coming with a special exception to put a golf
course in, open space preservation. You’re clustering your density over to
development pots, so there is no density on the golf course at present, as of the
date the ordinance was adopted. That’s why you do a clustering or [planned unit
development]. You move the density around on site. Take smaller lots.
Tr. 1175. Mr. Bass disagreed with Ms. Allred’s conclusion that the County would ignore the
Covenants, stating: “I believe they would not ignore it because they’re the ones who required it.”
Tr. 1194. He opined that if a rezoning petition made it through the review process, the Board of
County Commissioners would deny it. Tr. 1194-95. However, Mr. Bass acknowledged that
Stoneybrook could be rezoned if there were unified control and ownership over the property. Tr.
1289-92. Specifically, if the residents who owned land within the Stoneybrook development
agreed to develop the golf course, they could file a corrected deed and rezoning petition, and
proceed through the rezoning process.
Stoneybrook should be appraised without the use restriction. The fact that Stoneybrook
was subject to use restrictions in April 2004, does not limit its highest and best use if Plaintiffs
can show that a more valuable use was physically possible, appropriately supported, and
51
financially feasible. McCandless v. United States, 298 U.S. 340, 345 (1936); Loveladies Harbor
Inc. v. United States, 21 Cl. Ct. 153, 156 (1990). Plaintiffs satisfied this burden here. First, Mr.
Bass testified that Stoneybrook could be rezoned assuming there was unified control and
ownership of the property, as the unit rule requires. Tr. 1288-91. Similarly, under the unit rule,
the 99-year use restriction in the Covenants could be removed because the Covenants were
subject to amendment, and the unit rule requires an appraiser to assume unified control and
ownership. See DX 29 (US-RB006643 to 006644). Second, according to Ms. Allred’s credible
testimony, Sarasota County would not consider open space restrictions in the context of rezoning
unless they were related to habitat preservation. Tr. 780. The restriction here preserves open
space for a golf course -- not habitat preservation. Plaintiffs have put forth sufficient evidence
to show that rezoning for residential development was reasonably probable, because such a
proposed change comports with this property’s future land use designation under Sarasota
County’s comprehensive plan. PX 11, PX 25B (BB-PLTF 13164).
Even without the use restriction, the parties do not agree on the value of Stoneybrook
before the taking. Mr. Durrance appraised the property at $200,000 per acre, while Mr.
Underwood appraised it at $165,000 per acre. Messrs. Durrance and Underwood used two of the
same properties in their analyses: Sale 4/A-2 and Sale 3/A-3. While the appraisers agreed about
how the properties compared to Stoneybrook overall -- that Sale A-3 was superior and Sale 4/A-
2 was inferior -- they disagreed about how the properties compared with respect to market
conditions and land use regulations. Specifically, for market conditions, Mr. Underwood did not
make any time-based adjustments to Sale 4/A-2 because the sale closed in August 2004. In
contrast, Mr. Durrance rated Sale 4/A-2 as inferior to Stoneybrook because its sale was
contracted a year before the date of valuation. Compare DX 53 (US-BB003782), with PX 25B
(BB-PLTF-13165 to 13166). Similarly, Mr. Underwood applied a negative nine percent
adjustment to Sale 3/A-3 because the sale closed in October 2004, indicating it sold during
superior market conditions, while Mr. Durrance rated the same property slightly inferior because
its sale was contracted in September 2003. Compare DX 53 (US-BB003782), with PX 25B (BB-
PLTF-13165 to 13166). Again, Mr. Durrance based his analysis on the dates when Sales 3/A-3
and 4/A-2 were contracted, while Mr. Underwood used the closing dates, and inflated the value
of Sale 3/A-3. Mr. Durrance’s approach better reflects the market conditions when the prices for
the properties were determined, and is therefore more accurate and persuasive.
The experts also approached land use differently. Mr. Durrance addressed three types of
restrictions: zoning/future land use designation, environmental lands, and
easements/encumbrances. Mr. Underwood utilized one category, zoning/future land use, and did
not mention a 2.3-acre perpetual mitigation easement that limited development on Sale 3/A-3,
while Mr. Durrance rated Sale 3 as slightly inferior for easements/encumbrances because of the
mitigation easement. Mr. Underwood made a negative five percent adjustment for land use
regulations, indicating Sale 3/A-3 was superior to Stoneybrook for that factor. Moreover, Mr.
Underwood did not acknowledge the fact that Sale 4/A-2 featured a creek, mesic hammock, and
overhead transmission power lines, while Mr. Durrance rated the property as inferior because of
those development constraints. Mr. Durrance’s more thorough consideration of land use better
reflected the “before value” of Stoneybrook, while Mr. Underwood inflated the value of Sales
3/A-3 and 4/A-2. Mr. Durrance appraised Stoneybrook at $200,000 per acre, and the Court
adopts this as the “before value” of the property.
52
Just Compensation for Stoneybrook
After the taking, 4.322 acres of Stoneybrook are occupied by the trail corridor. The
corridor runs along the eastern side of the property for 2,017.62 lineal feet. Plaintiffs seek
$1,483,900 in compensation in relation to Stoneybrook -- $860,500 for the land encumbered by
the easement, $302,600 in severance damages, and $320,800 for “conversion land damages.”
Defendant argues just compensation should be limited to the land encumbered by the easement
and would limit just compensation to $106,100 per acre, based on the assumption that
Stoneybrook did not have development potential.
As discussed above, Stoneybrook should be appraised with development potential, at
$200,000 per acre. As such, because 4.322 acres of Stoneybrook are encumbered by the rail-trail
corridor, Plaintiffs are awarded $855,756 for the land encumbered.
Plaintiffs are also entitled to compensation for the cost of installing a 50-foot buffer for
the 2,017.62 lineal feet of land adjacent to the corridor. As discussed above, because
Stoneybrook is in the Palmer Ranch DRI, which required a 50-foot buffer, adding such a buffer
on the land adjacent to the corridor at $115 per lineal foot is a reasonable means of mitigating the
negative effect of the trail on the value of the Stoneybrook remainder. Accordingly, Plaintiffs
are entitled to $232,026.30 in severance damages representing the cost of buffering.
Plaintiffs seek “conversion land damages” for Stoneybrook but do not seek this category
of damages for the other 12 properties. These damages represent the value of an additional 35
feet of land adjacent to the trail necessary to create a 50-foot wide buffer. Mr. Durrance
included conversion damages for Stoneybrook because after the taking, a developer would need
to set aside an additional 35 feet of land for a setback and buffering along the trail to comply
with the Palmer Ranch Development Code, which required a 50-foot buffer, and that land would
have been rendered unusable for other purposes. Tr. 391-93. He provided the following
explanation:
[P]er the Palmer Ranch Development Code, the minimum required buffer width
along the new rail/trail corridor is 50 feet, which is an increase of 35 feet from the
Before condition and results in 1.62 acres of developable residential lands being
converted to buffer area. The use of this area has essentially been acquired as a
result of the rail-trail easement. In other words, it is a linear strip of land along
the perimeter of the property that is essentially “set aside” for other uses and
effectively becomes the new boundary of the property.
PX 25B (BB-PLTF-13183). Mr. Durrance continued:
The manner in which that was calculated is in the before condition, the market
says 10 to 20 feet. I used 15 feet, a 15-foot setback from the perimeter as the
typical market before situation, and I used 50 feet in the after, so you have an
increased setback or distance, if you will, and that 35 feet of additional land area
as a result of the new easement times the length comes out to 1.62 acres that I’ve
put there in the chart, and you can see the calculations there, $320,800. It
essentially eliminates some land area is what it does.
53
Tr. 391-93. In sum, Mr. Durrance determined that a 35-foot wide strip of land adjacent to the
trail would need to be converted to a buffer to comply with the Palmer Ranch Development
Code, and Plaintiffs seek damages of $320,800 representing the value of the land underlying the
35-foot wide strip, because the buffered land could not be used for other purposes. Defendant
contends Plaintiffs are not entitled to recover conversion damages because the Palmer Ranch
Development Code does not have the force of law.
Plaintiffs’ claim for conversion damages presents an issue of first impression. Plaintiffs
include their claim for conversion land damages under the rubric of severance damages. When a
partial taking occurs, a plaintiff may recover severance damages to compensate for the
diminution in the value of the remainder caused by the taking. See United States v. Grizzard,
219 U.S. 180, 184 (1911) (awarding severance damages because plaintiff proved that the partial
taking caused plaintiff to lose access to a village market, church, and school, which lessened the
remainder’s value); United States v. Welch, 217 U.S. 333, 338-39 (1910) (awarding severance
damages because plaintiff proved that the partial taking caused plaintiff to lose access to a right-
of-way, which decreased the value of the remainder); Georgia-Pac. Corp. v. United States, 226
Ct. Cl. 95, 123-24 (1980) (per curiam) (awarding severance damages because plaintiff proved
that a partial taking of forest land negatively impacted the manner in which the remainder could
be logged, decreasing the value of the remainder).
In order to recover severance damages, Plaintiffs must demonstrate that the taking caused
a diminution in the value of the remainder. See Grizzard, 219 U.S. at 184; Welch, 217 U.S. at
338-39; Georgia-Pac. Corp., 226 Ct. Cl. at 123-24. Plaintiffs have not met that burden here.
While the Legacy Trail itself caused a diminution in value to the remainder by exposing
landowners to noise, trespass, and nuisance, Plaintiffs have not established that mitigation of this
harm in the form of an additional 35-foot buffer would equate to a diminution in the value of the
remainder. In essence, Plaintiffs are asking the Court to find that the 35-foot buffered strip is
valueless. But that is not the case. Plaintiffs still own the land under the 35-foot buffer, and they
have not demonstrated how the buffer adversely affected the value of either the land underneath
it or the valuation of the remainder. In contrast, there is evidence that in Sarasota County
buffering has a recognized value. Under the County Code, buffered areas qualify as open space,
and Sarasota County has an open space requirement of 30% for urban planned unit
developments, such as Stoneybrook. Tr. 778-80.
This is not a situation like Gizzard where the taking eliminated access to the remainder,
causing a depreciation in the value of the remainder. Nor is this akin to Welch where the taking
caused plaintiff to lose the only practical outlet from plaintiff’s farm to the county road, causing
a diminution in the value of the remainder. Finally, Plaintiffs’ generalized assertion that the 35-
foot buffer prevented them from otherwise using their land, does not come close to the detailed
proof of economic loss to the remainder shown by the plaintiff in Georgia-Pacific. There,
plaintiff proved that defendant’s taking of forest land adversely affected the manner in which the
remainder could be logged, which lowered the value of the remainder, by demonstrating the
manner the timber could have been logged before the partial taking, the manner the timber had to
be logged after the taking, the total quantity of timber that could be logged on the remainder, and
the economic consequences of this change in logging manner. 226 Ct. Cl. at 123-25.
54
The Court awards Plaintiffs $1,087,782.30 in damages with respect to Stoneybrook,
representing $855,756 for the land encumbered by the easement and $232,026.30 in severance
damages for the cost of installing a 50-foot wide buffer.
TPC-Prestancia
Plaintiff Tournament Players Club at Prestancia, Inc. owns TPC-Prestancia (“TPC”), a
tract of land with an 18-hole golf course, a clubhouse, and related facilities.29 McIntosh Road
runs north-south along the eastern border, separates TPC from the rail-trail corridor, and runs
along the McIntosh Road right-of-way. PX 26C. The parties agreed that land underlying the
rail-trail corridor measured 3.903 acres.
TPC-Prestancia’s golf course was built in the mid-1980s, after Sarasota County approved
a 986-unit residential development adjacent to the course. DX 30. TPC was developed pursuant
to an incremental development order, allowing a development to be added to an existing DRI.
Tr. 1200-01. Exhibit B to the incremental development order, Resolution 84-419, stated:
The Bay Venture Corporation, as committed in the [Application for Incremental
Development Approval], shall provide 146.5 acres of parks and green space, a
106.3 acre golf course and club, and 65 acres of lakes/ponds. All recreational
facilities shall be maintained via membership fees, mandatory master home-
owners association, sub-home owner/condo associations, and other similar
maintenance and management operations.
DX 30 (BB-PLTF-15879).30 Section 4.1 of the resolution stated that all conditions, restrictions,
requirements, commitments, and impact mitigating provisions in the resolution were enforceable
by Sarasota County by an action at law or equity. DX 30 (BB-PLTF-15863).
The Covenants for TPC, which were recorded in 1986, provided that land designated on
the property plan as a golf club would only be used for “Golf Course Purposes.” DX 31 (BB-
PLTF-15805, BB-PLTF-15809 to 15810). The Covenants further provided that the provisions
would remain in effect for 99 years. DX 31 (BB-PLTF-15830 to 15831). However, the
Covenants were subject to amendment by a vote of two-thirds of all members of the
homeowners’ association. DX 31 (BB-PLTF-15831).
Plaintiffs’ Expert’s Valuation of TPC-Prestancia
Plaintiffs’ expert appraised TPC by comparing it to six other nearby properties, with
residential development as the highest and best use. The six properties that Mr. Durrance used to
appraise TPC were the same properties he used to appraise Stoneybrook. The following table
29
An aerial image of TPC is in Appendix C.
30
Bay Venture Corporation, Inc., the company that developed the TPC golf course and
adjacent residential development, submitted the application for incremental development
approval for TPC. DX 30.
55
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 inferior 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-PLTF-
13293 to 13294). Mr. Durrance found that TPC did not have any easements or encumbrances
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-PLTF-13296). 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-PLTF-13297).
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-acre 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 (BB-PLTF-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 (BB-PLTF-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 (BB-PLTF-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 (BB-PLTF-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-PLTF-13296). 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).
58
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). Mr. 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 mesic hammock, and a creek, which limited
development. Id. Mr. Durrance determined that Sale 4 was slightly superior for
shape/configuration because it was less irregularly shaped than TPC. PX 26B (BB-PLTF-
13297). Mr. Durrance concluded that in all, Sale 4 was inferior to TPC.
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/encumbrances because neither property had any easements
that significantly impacted development potential. PX 26B (BB-PLTF-13296). Lastly, Mr.
Durrance deemed Sale 5 superior for shape/configuration because Sale 5 was more regularly
shaped. PX 26B (BB-PLTF-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-PLTF-13296). 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-PLTF-13296 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-PLTF-13297). 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).
59
per acre. 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 (US-
BB002267). 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-1, 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 (US-BB002269). 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 (US-BB002271). 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 to
$148,926 per acre. Based on his analysis, Mr. Underwood concluded that TPC was most similar
to Sale A-2, and Sales A-1 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 the assumption that all development rights had
been removed. He applied the same analysis of noneconomic remainders that he used in
appraising Mission Valley and Stoneybrook, finding that a property without development
potential was worth 15% of the value of the same property with development potential. DX 52
(US-BB002273). Thus, Mr. Underwood valued 198 acres of TPC at $21,800 per acre. Further,
he determined that the 3.903 acres of TPC east of McIntosh Road could not be used as a golf
course. Rather, “[i]ts only use as a 50-foot strip would be passive recreation,” and was
accordingly worth less than the remaining land. DX 52 (US-BB002273). Based on this premise,
he valued those 3.903 acres at 15% of $21,800, or $3,300 per acre. Id.35 The combined value of
the 198-acre tract and 3.90-acre tract without development potential was $4,329,279.90.
35
15% of $21,800 is $3,270, which Mr. Underwood rounded to $3,300.
62
What Is the Proper “Before Value” of TPC-Prestancia?
Mr. Durrance valued TPC at $200,000 per acre with residential development as its
highest and best use. Mr. Underwood concluded residential development was prohibited under
the 99-year open use restriction and appraised it as a golf course with 198 acres worth $21,800
per acre, plus 3.903 acres that could not be used as a golf course worth $3,300 per acre. As
discussed above, the Court concludes that a property should be appraised subject to a use
restriction only if the use restriction preserved land for habitats and the unit rule’s assumption of
unified control and ownership did not apply. Here, the unit rule requires assuming unified
control and ownership, and the restriction did not affect habitat but designated land as a golf
course, which the County would not consider when reviewing a rezoning petition. Furthermore,
rezoning residential development would be consistent with TPC’s future land use designation
under the County’s comprehensive plan.
Additionally, the fact that the restriction was set forth in the Covenants does not prohibit
development because all of the provisions in the Covenants were subject to amendment by a
two-thirds vote of the members of the homeowners’ association. The unit rule requires an
appraiser to assume unified interests -- a unanimous vote -- that would seek the highest and best
use of the property. Accordingly, Plaintiffs have demonstrated that it was reasonably probable
that the restriction could have been removed in 2004, allowing residential development.
Even aside from the development restriction, the parties do not agree as to the value of
TPC before the taking. Plaintiffs contend that it was worth $200,000 per acre, while Defendant
asserts it was worth $145,000 per acre. There were three properties that both experts used in
their appraisals: Sale 5/A-1, Sale 4/A-2, and Sale 3/A-3. Messrs. Underwood and Durrance
disagreed about how these three properties compared to TPC in terms of market conditions and
land use regulations.
With respect to market conditions, Messrs. Durrance and Underwood disagreed about
how TPC compared to Sale 4/A-2 and Sale 3/A-3. Mr. Durrance rated Sale 4/A-2 as inferior and
Sale 3/A-3 as slightly inferior, while Mr. Underwood did not make any adjustment to Sale 4/A-2
and made a negative nine percent adjustment to Sale 3/A-3, indicating its market conditions were
better than TPC’s. PX 26B (BB-PLTF-13293); DX 52 (US-BB002267). Mr. Durrance used the
dates that Sale 4/A-2 and Sale 3/A-3 were contracted -- May and September 2003. PX 26B (BB-
PLTF-13329, BB-PLTF-13332). Mr. Underwood used the sale dates, August 2004 for Sale 4/A-
2, and October 2004 for Sale 3/A-3, which resulted in his overvaluing the comparison properties
and undervaluing TPC. DX 52 (US-BB002267).
Messrs. Durrance and Underwood also disagreed about how TPC compared to Sale 4/A-2
and Sale 3/A-3 with respect to easements and encumbrances. Mr. Durrance rated Sale 4/A-2
inferior and Sale 3/A-3 slightly inferior. PX 26B (BB-PLTF-12293 to 12294). Mr. Underwood
only addressed the properties’ zoning designations and apparently did not take into account
easements or encumbrances. DX 52 (US-BB002271). Sale 4/A-2 was encumbered by a power
line easement, a mesic hammock, and a creek, which imposed development constraints, and Sale
3/A-3 had a 2.3-acre perpetual mitigation easement, which also limited development. The Court
deems Mr. Durrance’s approach more persuasive because Mr. Underwood inflated the prices of
the comparison properties by ignoring these development constraints.
63
Additionally, Mr. Durrance considered the presence of environmentally sensitive lands.
He rated Sale 5/A-1 inferior for that factor because 20 to 25% of Sale 5/A-1 contained such
lands, while less than five percent of TPC had such lands. PX 26B (BB-PLTF-13293 to 13294).
Mr. Underwood did not address the presence of environmentally sensitive lands, a characteristic
that affects a property’s development potential.
For these reasons, the Court finds Mr. Durrance’s approach more persuasive and
determines the “before value” of TPC to be $200,000 per acre.
Just Compensation for TPC-Prestancia
Plaintiffs seek $772,794 in compensation with respect to TPC, representing the value of
the 3.903 acres encumbered by the easement.36 Plaintiffs do not seek any severance damages
related to TPC because the rail-trail corridor is separated from the property by McIntosh Road.
Defendant argues compensation should be limited to $12,800, representing the land encumbered
by the easement when appraised at $3,300 per acre. Because the Court determined that TPC
should be valued at $200,000 per acre before the taking, Plaintiffs are entitled to $772,794 in
compensation, representing 99% of the fee interest in the 3.903 acres encumbered by the
easement.
Arielle
Plaintiff Pulte Home Corporation owns 39.907 acres of land adjacent to the corridor
(“Arielle”).37 In 2004, the land was vacant, zoned residential multifamily-1, and designated for
moderate-density residential development under the comprehensive plan. Tr. 833; PX 22B (BB-
PLTF-12559 to 12561). The property’s zoning designation allowed for a maximum of six
dwelling units per acre. DX 54 (US-BB003629). The land, located within the Palmer Ranch
DRI, was vacant on the date of valuation, but it had been platted as a condominium development.
DX 54 (US-BB003607); Tr. 833.
Development on Arielle is governed by a 2003 Incremental Development Order as an
increment of the Palmer Ranch DRI. DX 18, DX 19. On the application for the incremental
development order, the developer listed the following native habitats as being present on portions
of the parcel: marshes and sloughs, wet prairies, mesic hammocks, agricultural land, and a
borrow pit. DX 18 (US-RB007472). The developer also indicated that the parcel contained a
“plant or animal species with special status, or rare, threatened, or endangered species of special
concern (e.g. mangrove, Florida coontie, golden polypody, gopher tortoise, scrub jay, indigo
snake, bald eagle),” which would be managed or protected in accordance with Exhibit D to the
application for Incremental Development Order, a Resource Management Plan. DX 18 (US-
RB007472). The Resource Management Plan provided:
36
In their post-trial brief and in Mr. Durrance’s appraisal report, Plaintiffs sought
$680,900 for the land encumbered by the easement. Pls.’ Post-Trial Br. 70; PX 26B (BB-PLTF-
13308). This calculation was based on 3.539 acres of TPC that were encumbered by the
easement. In the October 19, 2012 Joint Status Report, the parties agreed that the size of the
easement on TPC was 3.903 acres. 3.903 acres x $200,000 x 0.99 = $772,794.
37
An aerial image of Arielle is in Appendix D.
64
2.1 Preserved Wetlands
Approximately 4.37 acres of Wetland WP #135 will be preserved within
Increment XVII. The final configuration and acreage of preserved Wetland
WP#135 may be modified as a result of re-evaluation of the jurisdictional limits
of the system by the regulatory agencies with jurisdiction during permitting.
Mitigation for any unavoidable impact to Wetland WP #135 and to Wetlands WP
#16A, WP #16B, and WP #136A will be provided in accordance with the
permitting criteria of Sarasota County, the Southwest Florida Water Management
District, the Florida Department of Environmental Regulation, and [Master
Development Order] Native Habitat Condition B.2. The mitigation will be
accomplished within the Increment south of Wetland WP#135.
To ensure preservation of the wetland and mitigation area, these features and their
respective 30-foot upland buffers will be set aside as perpetual preserve areas on
all plats of record, Site and Development or Construction Plans, and in
conformance with agency permits. . . . Post-development monitoring of the
wetland and mitigation area will be conducted in accordance of the requirements
of the [Master Development Order], Sarasota County Land Development
regulations, and permits issued for the project.
...
2.3 Mesic Hammock
Consistent with Native Habitat Condition A.9, the 5.06-acre mesic hammock
within the Increment will be preserved. Measures to ensure the preservation of
the mesic hammock will include designating this area as a perpetual preserve in
all plats, site and development or construction plans, and in conformance with
agency permits. . . .
DX 18 (US-RB007502 to 007504) (emphasis added). The Resource Management Plan further
provided:
3.0 Implementation
The strategies outlined above will commence with the initiation of site
development. The habitats designated for preservation will be managed in
perpetuity as described herein. The Applicant will be responsible for the
implementation and financial requirements of the Resource Management Plan.
Palmer Ranch Holdings, Ltd., through a binding legal mechanism, will ultimately
transfer the management and maintenance of the preservation areas to one or
more property owners associations, special taxing units or other legally
responsible management entities.
DX 18 (US-RB007505).
The Resource Management Plan specified that the “preserved habitats within [Arielle]
are intended to be managed with the objective of maintaining native habitat characteristics.” DX
65
5% of the property contained such lands, in contrast to Arielle’s 20 to 25%. PX 22B (BB-PLTF-
12567). Finally, Mr. Durrance rated Sale 3 slightly inferior in terms of easements/encumbrances
because 2.3 acres of the property was encumbered with a perpetual mitigation easement, which
prohibited development. PX 22B (BB-PLTF-12564, BB-PLTF-12565). Based on his analysis,
Mr. Durrance appraised Sale 3 as superior to Arielle.
Mr. Durrance rated Sale 4 inferior for market conditions because it was contracted in
April 2003, when demand was weaker. PX 22B (BB-PLTF-12567). Mr. Durrance found the
location of Sale 4 to be similar to that of Arielle because both properties were within the Palmer
Ranch DRI. Id. He assessed the size of Sale 4 as slightly inferior to Arielle because it was 160
acres larger than Arielle. PX 22B (BB-PLTF-12564, BB-PLTF-12567). Mr. Durrance also
determined that Sale 4 was slightly inferior with respect to zoning because development was
permitted at 3.38 dwelling units per acre, while Arielle was zoned for denser, moderate-density
development. PX 22B (BB-PLTF-12567, BB-PLTF-12595). Less than 10% of Sale 4 contained
environmental lands, which led Mr. Durrance to rate it superior to Arielle. PX 22B (BB-PLTF-
12564, BB-PLTF-12567). However, he deemed Sale 4 inferior with respect to
easements/encumbrances because the property was encumbered with transmission power lines, a
mesic hammock, and a creek, which constrained development. PX 22B (BB-PLTF-12567).
Based on these six factors, Mr. Durrance concluded that Sale 4 was inferior to Arielle.
Mr. Durrance compared Arielle to Sale 5, a property that was subsequently developed as
a 160-unit townhome community. Mr. Durrance rated Sale 5 as similar to Arielle for all but one
factor. He deemed Sale 5 similar for market conditions because its sale was contracted in 2004,
near the date of the taking. PX 22B (BB-PLTF-12566). Mr. Durrance found the properties to be
similar in size because Sale 5 was only 12 acres smaller than Arielle. PX 22B (BB-PLTF-
12564). Mr. Durrance determined development at a density of 5.77 dwelling units per acre was
permitted on Sale 5, which was similar to the density allowed on Arielle. PX 22B (BB-PLTF-
12599). Additionally, both properties contained 20 to 25% environmentally sensitive lands. PX
22B (BB-PLTF-12564 to 12565). Mr. Durrance found the properties were similar with respect
to easements/encumbrances because neither property was substantially impacted by any. PX
22B (BB-PLTF-12567). Mr. Durrance deemed Sale 5 inferior for location because it was near
the interstate. Id. Overall, Mr. Durrance appraised Sale 5 as slightly inferior to Arielle.
Lastly, Mr. Durrance compared Arielle to Sale 6, a property that sold in late 2005.
Because it sold more than a year after Arielle, when demand for real estate was stronger, Mr.
Durrance rated it superior with respect to market conditions. PX 22B (BB-PLTF-12567). He
found Sale 6’s location to be inferior to Arielle’s because it was outside of the Palmer Ranch
DRI and was adjacent to an interstate. PX 22B (BB-PLTF-12566). Mr. Durrance found Sale 6
to be similar to Arielle for every other factor. Specifically, he found the properties to be similar
in size because Arielle was only one-and-a-half acres larger than Sale 6. PX 22B (BB-PLTF-
12564). He rated the properties similar in terms of zoning because Sale 6 was zoned at 5.5
dwelling units per acre, similar to the moderate density permitted on Arielle. PX 22B (BB-
PLTF-12601). Mr. Durrance deemed the properties similar with respect to environmental lands
because they contained approximately the same percentage of such lands. He rated them similar
for easements/encumbrances because neither property was significantly impacted by any
easements or encumbrances. Mr. Durrance rated Sale 6 as slightly superior to Arielle overall.
69
acre. Mr. Underwood did not adjust the prices of Sales A-1 or A-10 for time of sale because he
found the sales occurred sufficiently close in time to the taking.
Mr. Underwood then considered the location, size, land use regulations, and site
characteristics of each property and made adjustments to reflect any differences from Arielle.41
Mr. Underwood first analyzed Sale A-1, a property he deemed inferior to Arielle because of its
location and the existence of a 6.34-acre preservation area. DX 54 (US-BB003635). For
location, Mr. Underwood adjusted the price of Sale A-1 by 10% because it was near an
interstate. DX 54 (US-BB003640). He did not make any adjustments for size because there was
less than a 20-acre difference between A-1 and Arielle. DX 54 (US-BB003640). He also did not
make any adjustments for land regulations because similar levels of density were allowed on the
properties, as both were zoned residential multifamily. DX 54 (US-BB003638). Lastly, Mr.
Underwood applied a -15% adjustment for site characteristics because less than 25% of Sale A-1
was occupied with wetlands, while almost half of Arielle contained wetlands, preserves, or lakes.
DX 54 (US-BB003640). In all, Mr. Underwood adjusted the price per acre of Sale A-1 by
negative five percent.
Mr. Underwood next compared Arielle to Sale A-3, beginning with the time-adjusted
price of $236,338. Mr. Underwood made no adjustments for location because both were within
the Palmer Ranch DRI, but he adjusted Sale A-3 by negative five percent because it was almost
20 acres smaller than Arielle. DX 54 (US-BB003638, US-BB003640). Mr. Underwood did not
make any adjustments for zoning regulations because the sale of Sale A-3 was dependent on
rezoning the property, which resulted in an allowance of 7.02 dwelling units per acre, a similar
density to Arielle. DX 54 (US-BB003635, US-BB003640). Finally, he adjusted the price per
acre by -15% because less than 25% of Sale A-3 was wetlands, while 48% of Arielle contained
wetlands and/or preservation areas. DX 54 (US-BB003640). After adjusting for time, Mr.
Underwood adjusted the price per acre of Sale A-3 by an additional -20% for a final adjusted
price of $189,070 per acre.
Mr. Underwood next considered Sale A-4, a property he deemed inferior to Arielle with
respect to its location, land use, and achievable density. DX 54 (US-BB003635). He began with
the time-adjusted price of $183,213. He increased the price per acre by 10% for location because
Sale A-4 was near an interstate. DX 54 (US-BB003640). He did not make any adjustments for
size because there was a less than a 20-acre difference, but he applied a five percent adjustment
for land use regulations because Sale A-4 could not be developed to the same density. Id.
Lastly, he applied a -15% adjustment because less than 25% of Sale A-4 contained wetlands,
while almost half of Arielle featured wetlands and preservation areas. Id. Ultimately, aside from
the time-based adjustment, these adjustments canceled each other out, yielding a final adjusted
price of $183,213 per acre.
The fourth property in Mr. Underwood’s analysis was Sale A-10, a property that he
considered inferior in most respects. In particular, he adjusted the price by 25% for location
because A-10 was surrounded by older properties and in an area that was not easily accessible.
DX 54 (US-BB003640). He adjusted the price by negative five percent for size because Sale A-
10 was more than 20 acres smaller than Arielle. Id. Mr. Underwood found that A-10 was less
41
Mr. Underwood testified that “site characteristics” encompassed “the amount of
wetlands or developable area on each particular property.” Tr. 1541.
72
desirable with respect to zoning regulations because it could not be developed at as high of a
density as Arielle. Id. And, like the other comparable properties, he made a -15% adjustment
because less than 25% of Sale A-10 contained wetlands, while almost half of Arielle featured
wetlands and preservation areas. Id. In sum, Mr. Underwood adjusted the price of Sale A-10 by
10%, for a final adjusted price of $164,392 per acre.
The last property in Mr. Underwood’s analysis was Sale A-14 -- the sale of Arielle itself.
DX 54 (US-BB003637). Sale A-14 sold in October 2003, for $3,360,000 pursuant to a May
2002 contract. Id. The buyer rezoned the property at a cost of between $300,000 and $400,000.
Id. The only adjustments Mr. Underwood made were for market conditions and land use
regulations. Specifically, he adjusted the price per acre by 35% to reflect the 18 months between
the date of the contract and closing. DX 54 (US-BB003638). He also adjusted the price per acre
by 10% to reflect the increase in allowable density. Id. He did not adjust for location, property
size, or site characteristics. The final adjusted price of Sale A-14 was $129,566 per acre.
After adjusting for market conditions, location, property size, land use regulations, and
site characteristics, the price per acre of the comparison properties ranged from $129,566 to
$202,113. Mr. Underwood did not determine which comparable property was most similar to
Arielle. Based on his analysis, he appraised Arielle at $185,000 per acre. Tr. 1554.
Mr. Underwood determined that the 0.94-acre strip of land underlying the trail easement
lacked development potential because it was within an area of the property designated as
wetlands, lakes, littoral areas, and open space. Tr. 1555 (“[L]ooking at everything in a situation
and condition that particular piece didn’t add a whole lot of value to the site, which was
traditional open space.”); DX 54 (US-BB003634). Based on the same analysis he undertook for
Stoneybrook, TPC, and Mission Valley, Mr. Underwood valued the 0.94-acre portion of Arielle
underlying the trail easement at 15% of the value of the property with development potential. Tr.
1555-56. Accordingly, he appraised the 0.94-acre portion at $27,800. Combining the 0.94-acre
segment with the remaining 38.51 acres, valued at $185,000 per acre, resulted in a “before”
value of $7,150,482, which Mr. Underwood rounded to $7,150,500. DX 54 (US-BB003643).
What Is the Proper “Before Value” of Arielle?
The Price Per Acre
Plaintiffs’ expert appraised Arielle at $225,000 per acre, and Defendant’s expert valued it
at $185,000 per acre, with the 0.94-acre easement on the property valued at $27,800. The
appraisers used three of the same properties in their comparable sales analyses -- Sales 2/A-10,
5/A-1, and 3/A-3 -- but disagreed with respect to how these properties compared with Arielle in
several ways. First, Messrs. Durrance and Underwood disagreed as to how the market
conditions of Sale 3/A-3 and Sale 2/A-10 compared to Arielle’s. Mr. Durrance rated Sale 3/A-3
as slightly inferior, while Mr. Underwood made a negative nine percent adjustment to Sale 3/A-
3, indicating this comparison property sold at a better time than the date of valuation. Compare
PX 22B (BB-PLTF-12564), with DX 54 (US-BB003638). Mr. Underwood based his opinion on
the October 2004 closing date of Sale 3/A-3, while Mr. Durrance based his determination on
Sale 3/A-3’s contract date, September 2003. Mr. Underwood’s approach caused him to inflate
the value of Sale 3/A-3 and undervalue Arielle.
73
Mr. Durrance rated the market conditions for Sale 2/A-10 as slightly inferior, while Mr.
Underwood concluded the market conditions for the same property were similar. Mr. Durrance
relied on the late 2002 contract date, and Mr. Underwood used the March 2004 closing date.
Because the prices of the properties were set on their respective contract dates, Mr. Durrance’s
analysis of market conditions is more persuasive and better reflects the market conditions at the
time the prices of the comparable properties were established. As such, the Court finds Mr.
Underwood’s decrease in the value of Arielle based on market conditions unpersuasive.
The experts also disagreed about how Sale 3/A-3 compared to Arielle with respect to
location. Mr. Durrance rated it as slightly inferior because it was adjacent to the Palmer Ranch
DRI, while Arielle was within the DRI. PX 22B (BB-PLTF-12567). Mr. Underwood did not
make any adjustment to Sale 3/A-3 for location. Mr. Durrance’s finding with respect to the
location of Arielle vis-à-vis Sale 3/A-3 is more persuasive. The record reflects that there are
benefits to being located within the DRI, such as higher density development, flexibility in site
configuration, and access to preexisting environmental plans. See Tr. 806-07. Mr. Durrance’s
analysis of the properties’ locations was more complete than Mr. Underwood’s because he took
the DRI into account, and Mr. Underwood’s failure to address this consideration led him to
undervalue Arielle.
Accordingly, the Court adopts Mr. Durrance’s valuation of $225,000 per acre with
development potential, and $33,750 per acre without development potential, 15% of the value
with development potential.42
The Land Underlying the Trail Easement
Mr. Underwood valued 0.94 acres of the land underlying the trail easement at 15% of the
value of the rest of the property because the land underlying the easement had been designated
for habitat preservation in the Resource Management Plan that was an exhibit to the application
for an Incremental Development Order. See DX 18 (US-RB007502 to 007505). Plaintiffs argue
Arielle should be appraised with residential development as the highest and best use because the
99-year open space restriction could have been removed. Mr. Underwood appraised Arielle with
the assumption that development would have been prohibited on the entirety of the land
underlying the easement.43
Arielle was developed pursuant to an Incremental Development Order, which amended
and restated the Master Development Order for the Palmer Ranch DRI. DX 6, DX 18. The
application for the incremental development order contained a Resource Management Plan, and
the 2003 ordinance approving the development incorporated the terms of the Resource
42
The Court accepts Mr. Underwood’s method of determining the value of a property
without development potential. Plaintiffs did not present an alternative methodology.
43
In his appraisal, Mr. Underwood assumed that the Legacy Trail occupied 0.94 acres of
Arielle, while Mr. Durrance appraised Arielle with the assumption that the easement consisted of
1.397 acres. Compare PX 22B (BB-PLTF-12579), and DX 54 (US-BB003650). After the
completion of post-trial briefing, the parties agreed to use 1.397 acres as the size of the easement.
Joint Status Report, Oct. 19, 2012.
74
Management Plan. DX 19 (US-RB006161 to 006164). The Resource Management Plan bound
the developer and any future property owners’ association to the terms of the Plan. See DX 18
(US-RB007505) (“The habitats designated for preservation will be managed in perpetuity . . . .
Palmer Ranch Holdings, Ltd., through a binding legal mechanism, will ultimately transfer the
management and maintenance of the preservation areas to one or more property owners
associations . . . .”). The Resource Management Plan set aside 5.06 acres of mesic hammock,
4.37 acres of wetlands, and a 30-foot upland buffer adjacent to those wetlands as areas to be
perpetually preserved. See DX 18 (US-RB007502 to 007505).
The habitat lands were designated on a map in the Conceptual Development Plan
incorporated into the ordinance approving the development. This Plan indicates that
approximately half of the lands encumbered by the rail-trail corridor were designated for wetland
preservation, wetland mitigation, and development. Appendix E; DX 19 (US-RB006164).
Similarly, the plat and an aerial image of Arielle show that development was limited to the
northern half of the property, and there is no development adjacent to the corridor on the
southern half of the property. Appendix D (PX 22C (BB-PLTF-51851)), Appendix F (DX 38
(US-RB006138)).
Plaintiffs have not shown it was reasonably probable that lands in Arielle designated for
wetland preservation and mitigation could have been rezoned. See United States v. 320.0 Acres
of Land, 605 F.2d 762, 818-19 (5th Cir. 1979) (stating that a landowner must show a reasonable
probability that a regulatory restriction would be removed to value a property for a use that
would otherwise be precluded). Importantly, Plaintiffs’ expert, Ms. Allred, testified that
Sarasota County would not ignore use restrictions that were aimed at habitat preservation. Tr.
780.
Plaintiffs have the burden of proof in establishing the amount of their damages resulting
from the taking, but they failed to articulate what portions of Arielle were available for
development and what portions were set aside for habitat preservation, instead arguing that
Arielle in its entirety was developable. The Conceptual Development Plan is the best evidence
of the amount of land available for development, and it indicates that 50% of the land underlying
the corridor was set aside for habitat preservation. Appendix E (DX 19 (US-RB006164)).44 As
such, half of the 1.397-acre corridor, the land underlying the easement designated for wetland
preservation and mitigation, should be valued at 15% of the value of the developable property, or
$33,412.50 per acre.
Just Compensation for Arielle
For Arielle, Plaintiffs seek damages only for the land encumbered by the easement, and
the only dispute with respect to just compensation is the value of the land underlying the
easement. DX 54 (US-BB003650).
44
The plat and aerial image of Arielle support this conclusion as they indicate the
southern half of Arielle abutting the corridor is undeveloped. Appendix F (DX 38 (US-
RB006138)); Appendix D (PX 22C (BB-PLTF-51851)).
75
After the taking, 1.397 acres of Arielle were encumbered with the rail-trail easement.
The parties agree that the conversion of the rail corridor to a recreational trail was a taking of
99% of the fee interest. PX 22B (BB-PLTF-12579); DX 54 (US-BB003650). They also agree
that the per-acre value is the same before and after the taking. The Court found that Arielle was
worth $225,500 per acre before the taking, except for half of the land designated as a habitat
preserve, meaning that half of Arielle is properly valued at $33,412.50 per acre, and half at
$225,000 per acre. Accordingly, just compensation for Arielle is the value of the 1.397 acres
encumbered by the easement, $178,696.12.
JMC
Plaintiff JMC-Real Estate Holdings owned a 229.4185 acre property (“JMC”) adjacent to
the corridor. The property was not within the Palmer Ranch DRI. In 2004, the land consisted of
pasture lands, wetlands, and a lake/borrow pit. PX 21B (BB-PLTF-13026). In 2004, JMC’s
future land use designation was medium-density residential, allowing development at between
five and nine dwelling units per acre, and it was zoned for manufactured homes. PX 21B (BB-
PLTF-13031). State Road 681 and U.S. Highway 41 are immediately to the east of JMC.45
Village Lake Drive and Sunset Avenue provide access to the property. PX 21B (BB-PLTF-
13028). JMC is immediately across the rail-trail corridor from Mission Valley Golf Club.
JMC-Real Estate Holdings purchased JMC in 1999. PX 21B (BB-PLTF-13029). In
2005, JMC-Real Estate Holdings sold the property for the “base” price of $13,306,100. Id.When the buyer subsequently obtained zoning amendments in 2007, as detailed below, the buyer
made an additional payment of approximately $30,000 per acre, about $6,653,000, with further
payments due if the buyer obtained additional increased development rights prior to the year
2020. Id. (BB-PLTF-13029 to 13030). In June 2007, the buyer of the property petitioned the
County to rezone approximately 221 acres of JMC to allow development of up to 250 single-
family homes, 1605 condominium/townhouse units, 20,000 square feet of office space, and
200,000 square feet of retail space. DX 13. Sarasota County granted the petition, and the
property was developed with a 20-foot buffer where the land abutted Mission Valley Estates, a
residential development, and with no buffering where JMC was adjacent to the trail. Tr. 537-38;
DX 13, 13A.
What Is the Proper “Before Value” of JMC?
Plaintiffs’ appraiser valued JMC at $100,000 per acre before the taking, and Defendant’s
appraiser valued it at $110,000 per acre. The Court adopts Mr. Durrance’s “before value” of
$100,000 per acre as the value of JMC.
Just Compensation for JMC
Plaintiffs seek $1,863,900 for the taking as it relates to JMC -- $756,310.50 for the land
underlying the corridor and $1,109,300 in severance damages for buffering and separating JMC
45
An aerial photograph of JMC is in Appendix G.
76
from adjacent private lands.46 As discussed above, the Court values JMC at $100,000 per acre
before the taking. As such, the Court awards Plaintiffs $756,310.50 for the 7.6395 acres
underlying the easement.
Plaintiffs seek $1,109,300 in severance damages, representing the cost to buffer 4,000
lineal feet of the property adjacent to the corridor at $150 per lineal foot and a $500,000
diminution in the value of the remainder because of lost eastern access. Tr. 368-39. Plaintiffs
determined that it would not be necessary to buffer the entire length of the trail -- 6,640.33 lineal
feet -- because approximately 2,640 lineal feet of the corridor are adjacent to wetlands. Tr. 367-
68; PX 21B (BB-PLTF-13050).
Defendant argues that the fact that JMC was later developed as a development called
Village on the Trail with no buffering except for a 20-foot wide buffer where the land is adjacent
to Mission Valley Estates shows that Plaintiffs are not entitled to damages for the cost of
constructing a 50-foot buffer along the length of the corridor. Def.’s Post-Trial Br. 29 (citing Tr.
537-538; DX 13 (US-RB002571, US-RB002575)). Plaintiffs’ entitlement to severance damages
is not dependent upon whether or how a developer chose to mitigate the harm. As Mr. Durrance
testified, a landowner may choose to mitigate the harm caused by the taking via buffering or
another cure measure or a landowner may choose to accept the diminution in value to the
remainder caused by the taking without remedying it. Tr. 324-25.
Defendant has not identified any natural preexisting buffer on the property. As explained
above, given that this property is outside the Palmer Ranch DRI, a 25-foot buffer is warranted for
areas adjacent to the Legacy Trail that do not have a natural buffer. It is appropriate to use the
cost to construct a 25-foot buffer as a means of quantifying severance damages measuring the
negative impact that the Legacy Trail had on property values. The Court awards the cost of
installing a 25-foot buffer as the cost to cure the diminution in the fair market value of the JMC
remainder due to the trail. As such, the Court awards Plaintiffs $268,000, the cost to buffer
4,000 lineal feet at $67 per lineal foot.
Additionally, Plaintiffs claim the trail severed eastern access to adjoining lands,
specifically Mission Valley Golf and Country Club, making the land less valuable. Plaintiffs
argue that before the taking, JMC abutted Mission Valley’s golf course, wooded lands, and
single family homes to the east, and the owner of JMC could have constructed access to those
abutting lands. After the taking, the eastern edge of JMC abuts the trail corridor, and the owner
of JMC cannot construct access across the trail. Mr. Durrance valued this lost access at
$500,000. Tr. 369. When asked to explain why he attributed damages to JMC for the limited
access, Mr. Durrance testified:
Q And in the before-taken condition when there’s no rail-trail
corridor, why did you make an adjustment to that property because of the
adjacency to Mission Valley? . . .
46
At trial and in their post-trial briefing, Plaintiffs sought $754,600 for the part taken --
based on measuring the land underlying the corridor at 7.622 acres. Plaintiffs later stipulated
that land underlying the corridor was 7.6395 acres, increasing the amount of damages claimed by
$1,710.50. Joint Status Report, Oct. 19, 2012.
77
A Well, for a couple of reasons. The potential for these owners or
these properties, I should say, to connect, if so desired, that’s number one, and
there’s been discussion in the past about potentially doing that. With the taking,
the severing here, this public corridor? That’s gone. Number 2, [JMC] abuts, I
guess, a desirable land use for lack of a better term, having a golf course and
extensive frontage or abutting ownership with it.
Tr. 369-70; see also Tr. 541-43.
Plaintiffs have not demonstrated entitlement to damages for lost access to adjoining
lands. First, Plaintiffs have not established it was reasonably probable that they would have
obtained access to Mission Valley Golf and Country Club from JMC before the taking when the
rail corridor ran the entire length of the eastern edge of JMC, completely separating it from the
country club. See PX 21C. No private or public roads connected JMC to the country club, and
Plaintiffs did not present evidence that there was a plan or an agreement to build any roads.
Plaintiffs have not demonstrated that the conversion of the railroad corridor to the Legacy Trail
affected access between JMC and the adjoining properties at all. A plaintiff in a takings case
cannot recover damages for lost potential access unless the plaintiff establishes that there was a
reasonable probability that access would have been provided in the before taking scenario in the
reasonably near future. United States ex rel. TVA v. Powelson, 319 U.S. 266, 275-76 (1943);
see also Bd. of Cnty Supervisors, 276 F.3d at 1365, 1368. Plaintiffs did not offer any evidence
that JMC would have had access to Mission Valley Country Club but for the rail-trail corridor.47
Accordingly, Plaintiffs are entitled to compensation for the land encumbered by the
corridor and the cost to buffer the 4,000 lineal feet of land adjacent to the corridor at $67 per
lineal foot. As such, for the taking as it relates to JMC, the Court awards Plaintiffs $268,000 for
diminished market value due to adjacency of the trail and $756,310.50 for the 7.6395 acres
underlying the easement -- a total of $1,024,310.50.
Palmer Ranch
Plaintiff Palmer Ranch Holdings owns a 123.912-acre property adjacent to the corridor
(“Palmer Ranch”), which consists of vacant pasture land. The property is within the Palmer
Ranch DRI. Tr. 837-38. On the date of the taking, Palmer Ranch was zoned residential estate-1
and its future land use designation was moderate-density residential development, allowing one
residential unit per five acres. PX 19B (BB-PLTF-12799 to 12800).
Palmer Ranch is composed of two separately identified and platted tracts of land, tract B9
to the north and tract B10 to the south. DX 5A; PX 19B (BB-PLTF-12814).48 Before the taking,
the railroad easement encumbered 1,491.39 feet of the southwestern edge of the property. DX
5A. On the northern edge, 750 feet of the property fronts Sawyer Loop Road. PX 19B (BB-
47
Plaintiffs cite Mr. Dellos’ testimony that Mission Valley lost western access because of
the trail as evidence of JMC’s decrease in property value because of lost access. Pls.’ Post-Trial
Br. 38. However, Mr. Dellos, the president of the Mission Valley Country Club, testified about
how the trail affected the club’s access -- not JMC’s access.
48
An aerial map of Palmer Ranch is in Appendix H.
78
land use designation was for moderate- and medium-density residential development. PX 19B
(BB-PLTF-12802). Like Sale 2, Mr. Durrance found Sale 3 to be superior with respect to
environmental lands because less than five percent of the property contained such lands while
almost half of Palmer Ranch contained environmental lands. PX 19B (BB-PLTF-12802 to
12803). He determined that Sale 3 was slightly superior to the subject property in regard to
easements/encumbrances because the northwest corner of Sale 3 was encumbered by a perpetual
mitigation easement. PX 19B (BB-PLTF-12805). This easement limited development of Sale 3,
but to a lesser extent than the Bald Eagle protection zones limited development on Palmer
Ranch. Mr. Durrance concluded that Sale 3 was superior to Palmer Ranch.
Mr. Durrance compared Palmer Ranch to Sale 4, a 199.44-acre property within the
Palmer Ranch DRI. PX 19B (BB-PLTF-12802 to 12803). Sale 4 was contracted in the spring of
2003, when market conditions were less favorable. PX 19B (BB-PLTF-12805, BB-PLTF-
12827). As a result, Mr. Durrance rated Sale 4 inferior with respect to market conditions. Mr.
Durrance found Sale 4 to be similar to Palmer Ranch for all but one of the remaining factors.
Specifically, he deemed Sale 4 similar for location because both were within the DRI and for
size because both were over 120 acres. PX 19B (BB-PLTF-12802). Mr. Durrance rated the
properties similar in terms of zoning/future land use because both properties required rezoning to
reach densities suitable for residential development. PX 19B (BB-PLTF-12805). Mr. Durrance
found the properties to be similar in terms of easements/encumbrances because Sale 4 contained
a creek, a mesic hammock, and a power line easement along the eastern 100 feet of the property,
which all imposed development costs. PX 19B (BB-PLTF-12803 to 12804) However, Mr.
Durrance rated Sale 4 as superior for one factor -- environmental lands -- because less than 10%
of Sale 4 was occupied with wetlands or other environmentally sensitive lands, as compared to
40 to 50% of Palmer Ranch. Id. Overall, Mr. Durrance assessed Sale 4 as inferior to Palmer
Ranch.
Mr. Durrance compared Palmer Ranch to Sale 5, a 27.732-acre property that was
subsequently developed as a townhouse community. PX 19B (BB-PLTF-12802 to 12804). He
rated Sale 5 as similar in terms of market conditions because its sale was contracted in 2004. PX
19B (BB-PLTF-12802, BB-PLTF-12804). Mr. Durrance deemed Sale 5 inferior for location
because it was on an interstate. PX 19B (BB-PLTF-12805). He rated Sale 5 slightly superior for
size because it was almost 100 acres smaller than the subject property. Id. Mr. Durrance found
Sale 5 to be superior with respect to zoning because it was zoned for high-density residential
development, while the subject property required a rezoning. Mr. Durrance determined that Sale
5 was slightly superior to Palmer Ranch for environmental lands because 20 to 25% of Sale 5
consisted of such lands, as opposed to 40 to 50% of Palmer Ranch. PX 19B (BB-PLTF-12802 to
12803). He assessed Sale 5 as superior for easements/encumbrances because it was not
encumbered by any significant easements or encumbrances, while the Bald Eagle protection
zones on Palmer Ranch limited development. PX 19B (BB-PLTF-12805). Mr. Durrance rated
Sale 5 as slightly superior overall.
The final property in Mr. Durrance’s comparable sales analysis for Palmer Ranch was
Sale 6, a 38.4-acre property outside of the Palmer Ranch DRI. Sale 6 was contracted in mid-
2005, and closed in December 2005, when the market was nearing its peak. As such, Mr.
Durrance rated Sale 6 as superior for market conditions. PX 19B (BB-PLTF-12805). Sale 6 was
located adjacent to the DRI but was bordered by an overhead transmission power line easement
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percent adjustment to Sale A-3, which sold in October 2004, six months after the date of
valuation, a -11% adjustment to the price of A-4 because it sold in November 2004, and -15%
to the price of A-13 because its sale was contracted in March 2005, more than a year after the
taking.
Mr. Underwood then analyzed each property and determined whether adjustments were
necessary for location, property size, or land use regulation. Mr. Underwood first compared
Palmer Ranch to Sale A-1, a 27-acre property that was later developed into a townhouse
community. DX 61 (US-BB004535). He adjusted the price per acre of Sale A-1 upward by 10%
because it was near older homes and rental apartments, which Mr. Underwood deemed inferior
to the location of Palmer Ranch. Id. Mr. Underwood made a 20% upward adjustment for size
because Sale A-1 was almost 100 acres smaller than Palmer Ranch, and under his large-lot
adjustment theory, a 100-acre difference in size corresponded with a 20% difference in price.
DX 61 (US-BB004539 to 004540). Mr. Underwood applied a negative five percent adjustment
for land regulations to reflect zoning -- Sale A-1 was zoned for 5.77 dwelling units per acre,
while Palmer Ranch was zoned for one dwelling unit per two acres. DX 61 (US-BB004529, US-
BB0045240). In all, Mr. Underwood adjusted the per-acre price of Sale A-1 by -15%, resulting
in an adjusted price per acre of $180,838.
Mr. Underwood next considered Sale A-2, an almost 200-acre property within the Palmer
Ranch DRI. Mr. Underwood did not make any adjustments for location because both properties
were within the DRI. DX 61 (US-BB004539). Pursuant to his large-lot adjustment theory, Mr.
Underwood applied a 15% adjustment because Sale A-2 was approximately 75 acres larger than
the subject property. DX 61 (US-BB004539 to 004540). Mr. Underwood did not make any
adjustments to reflect differences in land use regulations because the properties were zoned to
permit similar levels of development. DX 61 (US-BB004540). Mr. Underwood applied a total
adjustment of 15% to Sale A-2, for an adjusted price of $161,452 per acre.
The third property in Mr. Underwood’s analysis was Sale A-3. Mr. Underwood began
with the time-adjusted price of $236,338 per acre. He did not make any adjustment for location
because both properties were within the Palmer Ranch DRI. Mr. Underwood applied a -20%
adjustment for size because Sale A-3 was 20.8 acres, approximately 100 acres smaller than the
subject property. DX 61 (US-BB004539 to 004540). Mr. Underwood employed a negative five
percent adjustment for land use regulations because Sale A-3’s contract was contingent on
rezoning to a density of seven dwelling units per acre, denser than allowed on Palmer Ranch.
DX 61 (US-BB004540). In sum, Mr. Underwood applied a -25% adjustment to the time-
adjusted price of A-3, resulting in a total adjusted price of $177,254 per acre.
Mr. Underwood next considered Sale A-4, beginning with a time-adjusted price of
$183,213 per acre. He applied a 10% adjustment for location because Sale A-4 was in a less
desirable area with older homes. DX 61 (US-BB004539). Mr. Underwood next adjusted the
price of Sale A-4 by -20% for size because Sale A-4 was approximately 100 acres smaller than
the subject property. DX 61 (US-BB004539 to 004540). He did not adjust the price of Sale A-4
for land use regulation because the properties had similar zoning/future land use designations.
DX 61 (US-BB004540). Mr. Underwood adjusted the time-adjusted price of Sale A-4 by an
additional -10% because of location and size, for a total adjusted price of $164,892 per acre.
85
The final property in Mr. Underwood’s analysis of Palmer Ranch was Sale A-13. He
began with the time-adjusted price of $76,500 per acre. He then applied a 20% adjustment for
location because Sale A-13 was adjacent to a mobile home park and had one access point. DX
61 (US-BB004538). At 221.77 acres, Sale A-13 was almost 100 acres larger than the subject
property. However, Mr. Underwood did not apply a 20% large-lot adjustment to reflect the full
100-acre difference because he found that no adjustment was needed once a property exceeded
200 acres. As such, he applied a 15% adjustment. DX 61 (US-BB004539 to 004540). Finally,
he applied a -10% adjustment for land use regulation because Sale A-13 was contingent on
rezoning to a mixed-use development with multifamily housing. DX 61 (US-BB004540). These
adjustments totaled 25%, resulting in a final adjusted price of $95,625 per acre.
Mr. Underwood concluded that Sale A-2, with a price of $161,452 per acre, was most
similar to Palmer Ranch and gave it the most weight. DX 61 (US-BB004541). He found that
Sales A-4 and A-13 were the least similar and gave them the least weight. DX 61 (US-
BB004541). Based on his analysis, Mr. Underwood appraised Palmer Ranch at $165,000 per
acre. DX 61 (US-BB004541).
What Is the Proper “Before Value” of Palmer Ranch?
Plaintiffs contend Palmer Ranch was worth $200,000 per acre on the date of valuation,
while Defendant’s appraiser valued the property at $165,000 per acre. Messrs. Durrance and
Underwood used three of the same properties in their analyses: Sale 3/A-3, Sale 4/A-2, and Sale
5/A-1. While they disagreed about how the properties compared to the subject property with
respect to specific factors, they agreed that Sale 3/A-3 was superior to Palmer Ranch, that Sale
5/A-1 was moderately superior to Palmer Ranch, and Sale 4/A-2 was inferior to Palmer Ranch.
Messrs. Underwood and Durrance disagreed about how Sale 3/A-3 compared to Palmer
Ranch with respect to market conditions. Compare PX 19B (BB-PLTF-12802 to 12803), with
DX 61 (US-BB004537). Mr. Durrance determined that Sale 3/A-3 was contracted in 2003, when
market conditions were less favorable, and he deemed Sale 3/A-3 inferior. Mr. Underwood used
the 2004 closing date, which did not reflect the market conditions when the price was set,
resulting in Mr. Underwood undervaluing Palmer Ranch.
Additionally, Mr. Durrance noted Sale 3/A-3 was encumbered with a perpetual
mitigation easement, and Sale 4/A-2 was encumbered with an overhead transmission power line
easement, a creek, and a mesic hammock, making them less suitable for development than
Palmer Ranch. While Mr. Underwood considered the eagle protection zone on Palmer Ranch, he
did not mention easements on the comparison properties that would affect the potential
development and value, thus ignoring factors that would have decreased the value of the
comparison properties. Because Mr. Durrance accounted for these restrictions, his appraisal
better reflected the value of Palmer Ranch.
For the foregoing reasons, the Court finds Mr. Durrance’s appraisal of Palmer Ranch to
be more persuasive. Accordingly, $200,000 is the proper “before value” for Palmer Ranch.
Just Compensation for Palmer Ranch
For Palmer Ranch, Plaintiffs seek $1,239,000 in damages -- $339,000 for the 1.712 acres
underlying the corridor and $900,000 in severance damages for lost access. Defendant argues
86
damages should be limited to the value of the land encumbered.
Because Palmer Ranch is properly valued at $200,000 per acre, Plaintiffs are entitled to
$338,976 for the 1.712 acres encumbered by the rail-trail corridor.
Plaintiffs do not seek damages for buffering because wetlands and environmental lands
provide natural buffering along the rail-trail corridor in Palmer Ranch. Tr. 355. However,
Plaintiffs seek severance damages for diminished access to Palmer Ranch via McIntosh Road, a
north-south artery. Tr. 350-51; PX 19B (BB-PLTF-12814). McIntosh Road is west of Palmer
Ranch. PX 19C; Appendix H (DX 5A). While Palmer Ranch did not have access to McIntosh
Road when the taking occurred, Plaintiffs contend that future western access was reasonably
probable because it was the most advantageous access point. PX 19B (BB-PLTF-12814).
Plaintiffs generally posit that such access would have been constructed on the southwestern
portion of Palmer Ranch, where the property is closest to McIntosh Road, but did not suggest a
specific location for a road. After the taking, the Legacy Trail ran between Palmer Ranch and
McIntosh Road, on the western edge of Palmer Ranch -- meaning traffic would have to cross the
trail from Palmer Ranch to reach McIntosh Road.
As Plaintiffs acknowledge, the land between Palmer Ranch and McIntosh Road was
owned by another party. Nonetheless, Plaintiffs argue damages for lost access are appropriate
because access via McIntosh Road was the preferred access point. First, Plaintiffs state that
access via McIntosh Road would allow Tracts B-9 and B-10 to be developed as two separate
developments or two phases of one development. PX 19B (BB-PLTF-12814). Without
McIntosh Road, access to Tract B-9 would need to be routed through B-10. Second, Plaintiffs
contend McIntosh Road is superior to the other nearby roads. Specifically, while Palmer Ranch
had potential access via Sawyer Loop Road, that road is directly south of industrial properties.
Access via McIntosh Road would be sited directly across from the TPC Prestancia Golf Course,
towards the southwestern corner of Palmer Ranch, a more desirable location. Id. Similarly,
while Ridge Road could provide access to the Palmer Ranch via the south through another
residential development, such access would not provide a primary north-south thoroughfare with
an entry feature. Id.In his appraisal of Palmer Ranch, Mr. Durrance addressed this access issue as follows:
Consultation with the primary planning/engineering firm for the Palmer Ranch
DRI, Stantec (f/k/a Wilson Miller), indicates that before imposition of the new
easement, access to McIntosh Road was reasonably probable. McIntosh Road,
along with Honore Avenue, is one of the primary north-south connectors through
the Palmer Ranch Community. Although there is an intervening ownership
between the subject and McIntosh Road, given the particulars of the ownership,
access/entry from McIntosh Road was not only probable, but the most desired
access point of the available options. Access via other connections, while
adequate, would not be the preferred access points.
PX 19B (BB-PLTF-12814).
To quantify the damages associated with diminished access, Mr. Durrance consulted with
WilsonMiller Stantec, a consulting firm that provides services in planning, engineering,
87
architecture, surveying, and project management, and undertook an analysis of two
developments that differed with respect to shape, access, and abutting corridors, to determine the
effect diminished access has on property values. He compared Taylor Woodrow Homes, a
78.34-acre property with two access points and no abutting corridors, and BM2, a 38.4-acre
property that was adjacent to a power line corridor and an interstate with access through an
adjacent subdivision. PX 19B (BB-PLTF-12811). From this comparison, Mr. Durrance
concluded that a property that had indirect access, i.e., through a subdivision, and was adjacent to
a corridor would sell for five percent less than a property with direct access and no abutting
corridors. PX 19B (BB-PLTF-12816). Plaintiffs seek $900,000, five percent of the total
“before” value, in severance damages for lost access.
At trial, Mr. Durrance offered the following explanation of why obtaining access via
McIntosh road was reasonably probable:
A . . . It’s reasonably probable in the before condition with TPC
having ownership of the 50-foot strip of land and Palmer Ranch abutting that and
then McIntosh Road. In the before condition, McIntosh Road is a road easement,
and TPC owns the lands underneath McIntosh Road in this area because it’s an
easement. McIntosh Road is currently two lanes, but it’s planned for four lanes,
and there is right-of-way easement reserved for the eventual widening of the four
lanes.
In the before condition, the build out of McIntosh Road, this strip of land
on the east side of McIntosh Road, uses that strip for the eventual four laning of
this, which releases this 50-foot strip over here that is currently reserved for the
widening of McIntosh Road to four lanes, so is it reasonably probable given the
situation, the particulars of this property that access to McIntosh Road could be
achieved for the Palmer Ranch property? My answer is yes, and I consulted also
with Wilson Miller regarding that as well since they are the primary engineers and
planners for this community.
Q And so your conclusion is based on the understanding that the road
easement would be relocated from the west side of McIntosh Road on the TPC
Prestancia property over to the east side of McIntosh Road on the east side of the
currently-paved road, is that correct?
A Yes, that is.
Q And that would require the county to agree to that, would they not?
A Yes, sure.
Q Do you know if the county agrees to those kind of road easement
relocations?
A Yes, they do. Again, I consulted with Wilson Miller. I didn’t just
operate in a vacuum and assume, and the answer is yes. Yes.
Tr. 352-53. Mr. Durrance did not identify the person with whom he consulted at WilsonMiller.
88
Ms. Allred, Plaintiffs’ expert on long-range planning and zoning in Sarasota County, a County
employee for 24 years, and currently a WilsonMiller employee, did not testify regarding the
likelihood of the County agreeing to this road easement relocation. There was no direct evidence
of TPC’s position on the probability of this easement relocation.
Defendant contends Plaintiffs are not entitled to severance damages for loss of access via
McIntosh Road. First, Defendant asserts any access routes to McIntosh Road would need to pass
through areas of Tract B-10, which were designated as wildlife corridors when Palmer Ranch
was platted and developed. Building a road through a wildlife corridor would conflict with the
objectives of retaining undeveloped lands and maintaining contiguity of habitats in the Palmer
Ranch East Side Environmental Systems Analysis and incorporated into Resolution 91-170, the
Resolution that governed the development of Palmer Ranch. See DX 7 (US-RB007953).
Plaintiffs disagree, arguing B-10 was not entirely encumbered by a wildlife corridor and could be
developed. Defendant further asserts that access to Tract B-10 is unnecessary as the area cannot
be zoned for residential development. Specifically, Defendant contends that the majority of B-
10 has been maintained as a wildlife corridor since 1991, which demonstrates that it was not
reasonably probable that it could have been zoned for residential development. Defendant
contends that because B-10 cannot be developed, sufficient access to B-9 can be provided via
Sawyer Loop Road or Ridge Road.
It is well settled that a takings plaintiff can recover damages when the taking causes
access to the remainder to be diminished. Grizzard, 219 U.S. 180 (1910); Union Elec. Light &
Power Co. v. Snyder Estate Co., 65 F.2d 297, 311 (8th Cir. 1933); McCann Holdings, 2013 WL
3326646, at *25-28; United States v. 711.57 Acres, 51 F. Supp. 30, 33 (N.D. Cal. 1943); see also
Dep’t of Transp. v. Stubbs, 285 So. 2d 1, 3 (Fla. 1973) (“Ease and facility of access constitute
valuable property rights for which an owner is entitled to be adequately compensated.”); Narloch
v. Dep’t of Transp., 340 N.W.2d 542, 550 (Wis. 1983). However, in this case, Plaintiffs seek
compensation for unspecified western access to and from Palmer Ranch that had not been
constructed or planned. In order to recover damages for a potential future use, a takings plaintiff
must establish that the potential future use was reasonably probable on the date of valuation.
Board of County Supervisors, 276 F.3d 1359 (Fed. Cir. 2002). Plaintiffs failed to meet their
burden here. At the outset, the specifics of how this access via an easement relocation was to
occur remain fuzzy. The only evidence Plaintiffs adduced on the probability of access in the
before condition was the conclusory opinion of Mr. Durrance without an adequate factual
predicate. This expert testified in response to a leading question that County approval would
have to be given for the easement relocation and could be secured. Tr. 353. But the expert’s
only support for this conclusion was his testimony that he had contacted WilsonMiller, and some
unidentified employee told him so. Plaintiffs’ other expert who had worked for Sarasota County
and currently works for WilsonMiller was silent on this point.
In McCann Holdings, Ltd. v. United States, this Court articulated the type of evidence
required to demonstrate that future access would have been reasonably probable in the before
condition, stating:
Here, Plaintiff has marshaled sufficient evidence to establish there was a
reasonable probability that Sarasota County would have used its dedicated rights-
of-way to extend Bay and Preymore Streets, which would have afforded access to
McCann North at those two locations. Plaintiff proffered plats showing the
89
County had dedicated rights-of-way and would not need to condemn private
property to extend either street. PX 18, PX 19. Mr. Culverhouse credibly
testified that based on his discussions with the county, he believed the county
would have extended Bay and/or Preymore Streets. . . .
McCann Holdings, 2013 WL 3326646, at *25. Here, in contrast, there was no factual testimony
on the likelihood of the County’s approval, and an inadequate description of what exactly access
in the before condition would have been. Moreover, as Defendant points out, the land through
which access would have to pass is designated as a wildlife corridor, raising a question as to the
likelihood of Sarasota County permitting road construction to provide such access. Nor did
Plaintiffs present evidence that similar access had been provided in similar situations. See Bd. of
Cnty. Supervisors, 276 F.3d at 1365-66. As such, Plaintiffs have not demonstrated that potential
future access via McIntosh Road was reasonably probable.
The Court awards Plaintiffs $338,976 for the taking as it relates to Palmer Ranch,
representing the value of the land encumbered by the easement.
Pine Ranch East
Plaintiff, the Pine Ranch East Owners’ Association, owns a 16.3798-acre triangular tract
of land (“Pine Ranch East”) to the east of the Pine Ranch East development and on the western
side of Pine Ranch East Road. Tr. 58-59; PX 27C.52 Pine Ranch East is a residential
development with 28 homes located in the town of Osprey. Tr. 57, 60. Pine Ranch East is east
of a large development called The Oaks and a few miles west of Interstate 75. Tr. 60. Pine
Ranch East is not within the Palmer Ranch DRI. Almost one acre of Pine Ranch East is
encumbered with a private road easement. PX 27B (BB-PLTF-12687). Pine Ranch East was
designated for moderate-density residential development under the comprehensive plan, and was
zoned residential estate-1, which permitted one dwelling unit per two acres. Tr. 823-24. The
County zoned it for moderate-density development because the staff determined it was
reasonably probable that it could be used for infill development. Tr. 828.
The 16.3798-acre tract is composed of a 13.633-acre segment designated as open space
and a 2.7468-acre segment that is a vacated right-of-way. DX 55 (US-BB001803). On the plat
for Pine Ranch East, the entirety of the triangular parcel was designated as open space. PX 41,
DX 3 (BB-PLTF-23003). The trail is on the eastern edge of Pine Ranch East, and a barbed wire
fence runs the length of the property, separating the property from the Legacy Trail. Tr. 64. The
Pine Ranch East Owners’ Association considered selling the tract adjacent to the trail but
determined that it was not possible because the trail adversely affected ingress and egress to the
property. Tr. 65-66.
Plaintiffs’ Expert’s Valuation of Pine Ranch East
Plaintiffs’ expert appraised Pine Ranch East with residential development as the highest
and best use. Mr. Durrance appraised Pine Ranch East using a comparable sales analysis of six
properties that were used in several of his appraisals discussed above. The price per acre of the
52
An aerial image of Pine Ranch East is in Appendix I.
90
lands, as compared to less than five percent on Pine Ranch East. PX 27B (BB-PLTF-12684).
Lastly, Mr. Durrance determined Contract 1 was slightly superior for having no
easements/encumbrances while Pine Ranch East was encumbered with a private road easement.
PX 27B (BB-PLTF-12687). Mr. Durrance concluded Contract 1 was slightly superior to Pine
Ranch East.
The second property in Mr. Durrance’s analysis was Sale 2, a 15.381-acre property that
was also outside of the DRI. For market conditions, Mr. Durrance rated Sale 2 as slightly
inferior to Pine Ranch East because its sale was contracted in late 2002, when market conditions
were less favorable. However, because the contract included a $400,000 assignment fee that
took later market conditions into account, Mr. Durrance did not rate it as fully inferior. PX 27B
(BB-PLTF-12686, BB-PLTF-12707). He also deemed Sale 2 slightly inferior in terms of
location because it was on an unimproved road. Id. Mr. Durrance found Sale 2 and Pine Ranch
East to be similar in size because Sale 2 was only slightly smaller than Pine Ranch East. PX 27B
(BB-PLTF-12687). Mr. Durrance rated Sale 2 superior for zoning/future land use entitlements
because Pine Ranch East was zoned residential estate-1, which limited development to one unit
per two acres, and Sale 2 was zoned residential single-family-4, which allowed 3.7 dwelling
units per acre. PX 27B (BB-PLTF-12684, BB-PLTF-12707). Because both properties consisted
of less than five percent environmentally sensitive lands, Mr. Durrance rated them similar for
that factor. PX 27B (BB-PLTF-12684). Finally, Mr. Durrance rated Sale 2 as slightly superior
because it did not contain any easements or encumbrances, while Pine Ranch East had a private
road easement. Mr. Durrance assessed Sale 2 as slightly inferior to Pine Ranch East.
Mr. Durrance deemed Sale 3 slightly inferior in terms of market conditions because its
sale was contracted in late 2003, when demand for real estate in the area was weaker. However,
Sale 3 had a contract assignment fee in the amount of $1,891,500, which mitigated the effect of
the delay. PX 27B (BB-PLTF-12685). Mr. Durrance determined Sale 3 was slightly superior
with respect to location because it was within the Palmer Ranch DRI. PX 27B (BB-PLTF-
12686). He found the properties were similar in size because both were within a range of 15 to
40 acres. PX 27B (BB-PLTF-12687). For environmental lands, Mr. Durrance rated the
properties as similar because both contained less than five percent of such lands. PX 27B (BB-
PLTF-12684 to 12685). Mr. Durrance determined Sale 3 was superior to Pine Ranch East in
terms of zoning/future land use because Sale 3 could be developed at a greater density. Id.Finally, because Sale 3 contained a 2.27-acre perpetual mitigation easement that limited
development on a corner of the property, he rated it similar. Id. For overall comparability, Mr.
Durrance rated Sale 3 superior to Pine Ranch East.
Mr. Durrance assessed Sale 4 and Pine Ranch East as similar in terms of market
conditions because Sale 4 was contracted near April 2004. PX 27B (BB-PLTF-12686). Mr.
Durrance deemed Sale 4’s location slightly superior to Pine Ranch East because it was
designated as infill, meaning the County identified it as an ideal location for development. Id.Next, Mr. Durrance rated Sale 4 and Pine Ranch East similar for size because both properties
were between 15 and 40 acres. PX 27B (BB-PLTF-12687). Mr. Durrance found that Sale 4 had
superior zoning/future land use entitlements because residential development up to 3.21 dwelling
units per acre and office development were permitted on the property. PX 27B (BB-PLTF-
12684, BB-PLTF-12713). Mr. Durrance determined Sale 4 and the subject property were similar
with respect to environmental lands because both properties had less than five percent of such
93
lands. PX 27B (BB-PLTF-12684). Finally, because Sale 4 did not contain any easements or
encumbrances that impacted development, Mr. Durrance rated Sale 4 slightly superior to Pine
Ranch East with respect to this factor. Id. Overall, Mr. Durrance concluded that Sale 4 was
slightly superior to Pine Ranch East.
Mr. Durrance determined that Sale 5 was slightly inferior for market conditions because
Sale 5 was contracted in late 2003 when market conditions were less favorable. However, the
contract also contained a $710,000 contract assignment fee, which lessened the effect of the time
gap. PX 27B (BB-PLTF-12686, BB-PLTF-12716). Mr. Durrance rated Sale 5 slightly inferior
for location because Sale 5 was in Nokomis, a less desirable area, on a thoroughfare. PX 27B
(BB-PLTF-12686 to 12687). He rated the properties as similar with respect to size because both
fell within the range of 15 to 40 acres. PX 27B (BB-PLTF-12687). Mr. Durrance deemed Sale 5
as superior to Pine Ranch East for zoning/future land use designation because development at a
density of 4.62 dwelling units per acre was permitted on Sale 5. PX 27B (BB-PLTF-12684, BB-
PLTF-12716). Mr. Durrance determined that the properties were similar in terms of
environmental lands because both contained less than five percent of such lands. PX 27B (BB-
PLTF-12684). Lastly, Mr. Durrance rated Sale 5 slightly superior for easements/encumbrances
because Pine Ranch East was encumbered with a private road easement while Sale 5 was not
subject to any easements/encumbrances. Id.Mr. Durrance rated Sale 6, a 38.4-acre property, superior for market conditions because
Sale 6 was contracted in mid-2005, when demand and prices were higher. PX 27B (BB-PLTF-
12686). He rated Sale 6 inferior for location because it was adjacent to an overhead transmission
power line easement and the interstate. PX 27B (BB-PLTF-12687). Mr. Durrance determined
that the properties were similar with respect to size because both were within the range of 15 to
40 acres. PX 27B (BB-PLTF-12687). Sale 6 was zoned residential single-family-4, and its
future land use designation was medium-density residential. PX 27B (BB-PLTF-12684). Both
designations provided for greater density than allowed on Pine Ranch East, leading Mr. Durrance
to rate Sale 6 superior for zoning. He determined Sale 6 was inferior in terms of environmental
lands because the property had 20% environmental lands, while Pine Ranch East contained less
than five percent. Id. Lastly, Mr. Durrance rated Sale 6 slightly superior with respect to
easements/encumbrances because it did not contain any easements that impacted potential
development, while the subject property was encumbered with a private road easement. PX 27B
(BB-PLTF-12687). Mr. Durrance concluded Sale 6 was superior to Pine Ranch East.
Based on his comparable sales analysis, Mr. Durrance ranked the six comparison
properties and Pine Ranch East. He determined that Pine Ranch East ranked below Contract 1,
which sold for $206,000 per acre, and above Sale 2, which sold for $176,000. Id. Based on this
ranking, Mr. Durrance appraised Pine Ranch East at $190,000 per acre. Id.Defendant’s Expert’s Valuation of Pine Ranch East
Mr. Underwood also appraised Pine Ranch East using a comparable sales analysis. He
compared Pine Ranch East with four property sales from the Sarasota area. Mr. Underwood
appraised Pine Ranch East as a 69.2775-acre parcel, the size of the entire subdivision, rather than
the 16.3798-acre tract upon which Plaintiffs base their claim, because common areas and right-
of-ways are not sold as standalone properties. DX 55 (US-BB001803). The unadjusted sales
price of the properties in Mr. Underwood’s analysis ranged from $175,439 to $259,712 per acre.
94
Mr. Underwood next considered Sale A-3, beginning with the time-adjusted price. He
applied a -10% adjustment for location because the property was on the east side of Honore
Avenue, south of Clark Road, a better location than the subject property. DX 55 (US-
BB001838). Mr. Underwood also applied a -10% adjustment for size because Sale A-3 was
more than 40 acres smaller than Pine Ranch East. DX 55 (US-BB001838). Mr. Underwood
adjusted the price of Sale A-3 by negative five percent to reflect the fact that it could be
developed at 7.02 dwelling units per acre, two units per acre more than permitted on Pine Ranch
East. DX 55 (US-BB001834, US-BB001836). Mr. Underwood did not make any adjustments
for site characteristics because less than 25% of Sale A-3 was set aside as wetlands or for
preservation. DX 55 (US-BB001839). After adjusting for time, Mr. Underwood adjusted the
price of Sale A-3 by an additional -25%, yielding a total adjusted price per acre of $177,253.
The third property in Mr. Underwood’s analysis was Sale A-4. He began with the time-
adjusted price of $183,213 and did not make an adjustment for location because the properties
were in similar areas. DX 55 (US-BB001836). Mr. Underwood applied a -10% adjustment to
reflect the fact that Sale A-4 was more than 43 acres smaller than Pine Ranch East. DX 55 (US-
BB001838). Mr. Underwood did not make any adjustments for land use regulations because the
properties were zoned to allow the same density of development. Id. Finally, he did not make
any adjustments for site characteristics because less than 25% of Sale A-4’s land consisted of
environmental lands. DX 55 (US-BB001839). Mr. Underwood determined that Sale A-4 had an
adjusted sale price of $164,892 per acre.
The last property in Mr. Underwood’s analysis of Pine Ranch East was Sale A-10. Mr.
Underwood adjusted the price of Sale A-10 by 15% for location because it was surrounded by
older construction with many “properties suffer[ing] from deferred maintenance.” DX 55 (US-
BB001838). Mr. Underwood applied a -15% adjustment to reflect the fact that Sale A-10 was
15.39 acres, more than 50 acres smaller than Pine Ranch East. DX 55 (US-BB001838). Mr.
Underwood did not make any adjustments for land use regulations because the properties had
similar designations. Id He also did not apply any adjustment for site characteristics because
Sale A-10 was less than 25% environmental or wetlands. DX 55 (US-BB001839). The location-
and time-based adjustments canceled one another out, resulting in a final adjusted price of
$175,439 per acre.
After adjustments were applied, the prices of the properties in Mr. Underwood’s analysis
ranged from $164,892 to $180,838 per acre. Based on his analysis, Mr. Underwood appraised
Pine Ranch East at $175,000 per acre. DX 55 (US-BB001839). However, after receiving the
legal instruction from counsel, Mr. Underwood determined $175,000 per acre was not the proper
“before value” of Pine Ranch East because he believed that development would not be permitted
on Pine Ranch East. This assumption was based on the fact that the land was designated as open
space on the plat for the development. DX 55 (US-BB001839), DX 38A. He appraised Pine
Ranch East as if it were a noneconomic remainder, worth 15% of the “before value” with
development potential. Accordingly, Mr. Underwood appraised Pine Ranch East at $26,300 per
acre.
What Is the Proper “Before Value” of Pine Ranch East?
Plaintiffs contend Pine Ranch East should be valued at $190,000 per acre before the
taking. Defendant contends that the property should be appraised without development potential
97
at $26,300 per acre. Plaintiffs acknowledge that the plat for the residential development
designates the bulk of the 16.3798-acre tract as open space. However, Plaintiffs argue that the
land should be appraised without that restriction because rezoning the property for residential
development was reasonably probable in 2004. Ms. Allred testified that the entirety of Pine
Ranch East was designated for denser development than land west of Pine Ranch East Road
because it was identified for infill development. Tr. 828. Additionally, when Pine Ranch East
was designated as open space, the County had a 50% open space requirement. That policy was
changed in 1989, and in 2004, the open space requirement in effect was 30%. Tr. 774-75.
As discussed above, Plaintiffs’ properties should not be appraised subject to a use
restriction unless the restriction was directed at habitat preservation and the property could not be
subject to unified control and ownership. Here, the land was not designated for habitat
preservation, and the Court assumes unified control and ownership pursuant to the unit rule.
Additionally, rezoning Pine Ranch East for residential development would be consistent with the
property’s moderate-density residential future land use designation under the County’s
comprehensive plan.
Even absent the consideration of development potential, the experts’ appraisals differ by
$15,000 per acre. Messrs. Durrance and Underwood used three of the same properties in their
appraisals: Sale 3/A-3, Sale 4/A-4, and Sale 2/A-10. They agreed Sale 3/A-3 and Sale 4/A-4
were superior to Pine Ranch East and agreed about the relative extent of their superiority, with
Sale 3/A-3 being the most superior of the properties. Compare PX 27B (BB-PLTF-12684), with
DX 55 (US-BB001836). However, Messrs. Durrance and Underwood disagreed about how
Sales 3/A-3 and 4/A-4 compared to Pine Ranch East with respect to market conditions. Mr.
Durrance based his determinations on the 2002 and 2003 contract dates, while Mr. Underwood
used only the October and November 2004 closing dates, undervaluing Pine Ranch East. As
discussed previously, Mr. Durrance’s approach better reflected the market conditions that led to
each comparable property’s price, while Mr. Underwood inflated the values of the comparison
properties.
Messrs. Durrance and Underwood also disagreed about how each property compared to
the subject property in terms of size. Mr. Underwood applied a -10% adjustment to Sale 3/A-3
and Sale 4/A-4 and a -15% adjustment to Sale 2/A-10 because they ranged in size from 15 to 26
acres, and he appraised Pine Ranch East at 69.2775 acres. DX 55 (US-BB001836). Mr.
Durrance appraised Pine Ranch East at 15.78 acres and rated all three properties as similar. PX
27B (BB-PLTF-12684). After trial, the parties agreed that Pine Ranch East was 16.3798 acres.
Joint Status Report, Oct. 19, 2012. The Court finds Mr. Durrance’s refusal to apply a size
adjustment based on how Pine Ranch East compared to Sale 3/A-3, Sale 4/A-4, and Sale 2/A-10,
to be appropriate because the comparable properties were sufficiently close in size to the subject
property. In applying his large-lot adjustment, Mr. Underwood undervalued Pine Ranch East.
For the foregoing reasons, the Court finds that Mr. Durrance’s analysis more accurately
reflected the value of the properties, and adopts his “before value” of $190,000 per acre for Pine
Ranch East.
Just Compensation for Pine Ranch East
Plaintiffs seek $832,100 in damages for Pine Ranch East, representing $491,000 for the
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part taken and $341,100 in severance damages for the decrease in fair market value because of
the trail. Defendant contends compensation should be limited to the land encumbered by the
easement, valued without development potential at $26,300 per acre.
As discussed above, Pine Ranch East is properly valued at $190,000 per acre before the
taking. As such, Plaintiffs are entitled to $516,673.08 for the 2.7468 acres encumbered by the
rail-trail corridor. Additionally, Plaintiffs are entitled to severance damages for the decrease in
the value of Pine Ranch East because of the taking. As discussed above, $67 per lineal foot for
the cost to buffer the land adjacent to the trail is a reasonable means to quantify the impact of the
trail on the property’s fair market value because Pine Ranch East is not in the Palmer Ranch
DRI. The rail-trail corridor is adjacent to 2,274 lineal feet of Pine Ranch East, and there is no
natural buffering provided by wetlands or conservation areas. See PX 27D. As such, Plaintiffs
are entitled to $152,358 in severance damages. The Court awards Plaintiffs $669,031.08 in
compensation with respect to the taking of Pine Ranch East.
Calusa Lakes
Calusa Lakes is a residential subdivision. The Calusa Lakes Community Association
owns a tract of land (“Calusa Lakes”), which is located between the Legacy Trail and a
residential area.57 The parties disagree as to the size of Calusa Lakes. Mr. Durrance appraised
only the parent tract, measuring 60.673 acres, referred to as “Unit 2.” PX 23B (BB-PLTF-
11944). Unit 2 was composed of a drainage area, a wetlands preserve, and open space. DX 56
(US-BB001521). Mr. Underwood appraised Calusa Lakes as Units 1 and 2, which measured
138.75 acres. DX 56 (US-BB001521). Unit 1 consisted of residential lands, and it does not abut
the corridor. The rail-trail corridor is adjacent to Unit 2. See DX 56 (US-BB001530); PX 23B
(BB-PLTF-11961), PX 23D. Mr. Underwood combined Units 1 and 2 for analysis purposes
because Unit 2 was at the northwest corner of the subdivision and Unit 1 provided access to Unit
2. DX 56 (US-BB001521). While the parties disagree about the size of Calusa Lakes, they
agree that after the taking, 1.273 acres of the property was encumbered by the Legacy Trail.
In 2004, Calusa Lakes was zoned residential single-family-2 and designated for
moderate-density residential development. Tr. 831. This designation permitted residential
development at a maximum density of 3.5 dwelling units per acre. DX 56 (US-BB001531). The
plats of the Calusa Lakes development indicate that the land adjacent to the corridor was
designated as drainage area, open space, and open space with a wetland preserve. DX 36. The
Covenants for Calusa Lakes identified the open spaces and drainage areas as two types of
“community common areas.” DX 37 (US-PR000151 to 000152). The Covenants further
provided that once the community association took title to the common areas, the lands “shall
not be abandoned, partitioned, alienated, released, transferred, hypothecated, or otherwise
encumbered without first obtaining . . . not less than the majority of the OWNERS and a majority
of the INSTITUTIONAL MORTGAGEES . . . .” DX 37 (US-PR000153). Additionally, the
Covenants stated that the provisions would run with the land for 99 years. DX 37 (US-
PR000173). The Calusa Lakes Covenants provided that the Covenants could be amended via a
two-thirds vote of all members and the approval of a majority of the board. DX 37 (US-
PR000174).
57
An aerial view of Calusa Lakes is in Appendix J, and it includes Units 1 and 2.
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Mr. Durrance compared Calusa Lakes to Sale 2, which represented an assemblage of two
contiguous parcels that were contracted in September 2003. Because Sale 2 was contracted more
than six months before the date of valuation, Mr. Durrance assessed Sale 2’s market conditions
as slightly inferior. However, the contract involved a $1,891,500 assignment fee that accounted
for the change in market conditions, lessening the effect of the delay. PX 23B (BB-PLTF-
11956). Mr. Durrance rated Sale 2’s location as superior to Calusa Lakes’ because Sale 2 was
adjacent to the Palmer Ranch DRI, a potential asset the subject property lacked. PX 23B (BB-
PLTF-11959).59 At 20.77 acres, Mr. Durrance found Sale 2 was slightly superior with respect to
size. PX 23B (BB-PLTF-11955). Mr. Durrance determined the zoning/future land use
designation of Sale 2 was slightly superior because moderate- to medium-density development
was allowed on Sale 2, a greater density than permitted on Calusa Lakes. PX 23B (BB-PLTF-
11959). Like Sale 1, Mr. Durrance deemed Sale 2 superior with respect to environmental lands
because they occupied less than five percent of the property. PX 23B (BB-PLTF-11955, BB-
PLTF-11959). He determined Sale 2 was slightly inferior with respect to
easements/encumbrances because 2.3 acres of Sale 2 were encumbered with a mitigation
easement that prohibited development. PX 23B (BB-PLTF-11956). Mr. Durrance concluded
that Sale 2 was superior to Calusa Lakes.
Mr. Durrance next considered Sale 3. This sale was contracted in mid-2004, near the
date of valuation, leading Mr. Durrance to deem the properties similar in terms of market
conditions. PX 23B (BB-PLTF-11959). He determined Sale 3 had a slightly inferior location
because it was near an interstate. Id. Mr. Durrance found Sale 3, at 27.732 acres, was slightly
superior to Calusa Lakes with respect to size. PX 23B (BB-PLTF-11955, BB-PLTF-11959).
Mr. Durrance rated Sale 3 as slightly superior in terms of zoning/future land use because it was
designated for moderate- to medium- density development -- allowing denser development than
permitted on Calusa Lakes. PX 23B (BB-PLTF-11959). Mr. Durrance found the properties
were similar with respect to environmental lands because Calusa Lakes had 15 to 20% of such
lands, and Sale 3 had 20 to 25%. PX 23B (BB-PLTF-11955 to 11956). Finally, he rated the
properties similar in terms of easements/encumbrances because neither property had any
easements/encumbrances that affected development potential. PX 23B (BB-PLTF-11959). Mr.
Durrance concluded that Sale 3 was slightly superior to Calusa Lakes.
The fourth property in Mr. Durrance’s analysis was Sale 4, a 24.260-acre property that
was originally contracted in May 2003 and later assigned to another buyer in 2004, with a
$710,000 assignment fee. PX 23B (BB-PLTF-11957 to 11958, BB-PLTF-11988). Mr. Durrance
rated the market conditions of Sale 4 slightly inferior because the 2004 assignment partially
mitigated the effect of the earlier contract date. PX 23B (BB-PLTF-11959). Mr. Durrance also
found Sale 4 to be slightly inferior to the subject property in terms of location because it was in
the Nokomis area of Sarasota on a thoroughfare. Id. Mr. Durrance assessed the size of Sale 4 to
be slightly superior to Calusa Lakes because it fell within the 15 to 25-acre range. Id. Mr.
Durrance rated Sale 4 slightly superior in terms of zoning/future land use because when the
contract for Sale 4 closed, it was designated for moderate- to medium- density residential
59
The summary table in Mr. Durrance’s appraisal of Calusa Lakes rates Sale 2 as
superior for location, but the narrative discussion of adjustments characterizes Sale 2’s location
as slightly superior, a description the Court adopts. Compare PX 23B (BB-PLTF-11955), and
PX 23B (BB-PLTF-11959).
102
development, which permitted denser development than allowed on Calusa Lakes. Id. Mr.
Durrance rated Sale 4 as superior for environmental lands because Sale 4 contained less than five
5% environmentally sensitive lands, while Calusa Lakes had 15 to 20%. PX 23B (BB-PLTF-
11955, BB-PLTF-11959). For easements/encumbrances, Mr. Durrance found the properties to
be similar because neither property had any easements or encumbrances that limited potential
development. PX 23B (BB-PLTF-11959). Mr. Durrance concluded Sale 4 was inferior to
Calusa Lakes .
Mr. Durrance compared Calusa Lakes to Sale 5, a 19.650-acre property in the Nokomis
area of Sarasota County. Mr. Durrance determined the market conditions of Sale 5 were slightly
superior to those of Calusa Lakes because Sale 5 was contracted in late 2004, after the date of
valuation, when demand and prices were higher. PX 23B (BB-PLTF-11959). Mr. Durrance
deemed Sale 5’s location slightly inferior because Nokomis was a less desirable area. Id. He
rated Sale 5 slightly superior with respect to size because it fell within the 15 to 25-acre range.
Id. Because Sale 5 was zoned open-use-estate-1, a designation that permitted less dense
development than Calusa Lake’s designation, Mr. Durrance determined that Sale 5 was slightly
inferior in terms of zoning/future land use designation. PX 23B (BB-PLTF-11955, BB-PLTF-
11959). Mr. Durrance rated Sale 5 inferior for environmental lands because it contained 15 to
25% more environmental lands than the subject property. PX 23B (BB-PLTF-11955 to 11956).
Lastly, he found Sale 5 to be inferior with respect to easements/encumbrances because the
southern boundary of the property was encumbered with a power line transmission easement.
PX 23B (BB-PLTF-11959). Mr. Durrance concluded that Sale 5 was inferior to Calusa Lakes.
The last property in Mr. Durrance’s analysis was Sale 6, a 199.44-acre property within
the Palmer Ranch DRI that was developed as a community known as the Isles of Sarasota. PX
23B (BB-PLTF-11955, BB-PLTF-11958). Mr. Durrance rated Sale 6’s market condition inferior
to Calusa Lakes because its sale was contracted in 2003, when prices were lower. PX 23B (BB-
PLTF-11959). Mr. Durrance found Sale 6’s location to be superior to Calusa Lakes because Sale
6 was within the Palmer Ranch DRI. Id. He rated Sale 6 slightly inferior with respect to size
because it was almost 200 acres, substantially larger than Calusa Lakes. Id. Mr. Durrance
assessed Sale 6’s zoning/future land use designation as slightly inferior because it was zoned
open-use-estate 1, a lower density than Calusa Lakes. PX 23B (BB-PLTF-11955, BB-PLTF-
11959). Mr. Durrance rated Sale 6 superior for environmental lands because less than 10% of
Sale 6 constituted environmentally sensitive lands. PX 23B (BB-PLTF-11955, BB-PLTF-
11959). Mr. Durrance found Sale 6 to be inferior in terms of easements/encumbrances because
Sale 6 was encumbered by transmission power lines, a mesic hammock, and a creek, which
imposed development constraints on the property. PX 23B (BB-PLTF-11959). Mr. Durrance
concluded that Sale 6 was inferior to Calusa Lakes.
From this analysis, Mr. Durrance concluded that Calusa Lakes was most similar to Sale 1
which sold for $176,000 per acre. PX 23B (BB-PLTF-11960). He appraised Calusa Lakes at
$175,000 per acre before the taking, for a total “before value” of $10,618,000 for the 60.673-acre
property. Id.Defendant’s Expert’s Valuation of Calusa Lakes
Mr. Underwood also appraised Calusa Lakes using a comparable sales analysis. He
appraised Calusa Lakes as a 138.75-acre property, consisting of Unit 1 and Unit 2. Mr.
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price. He applied a -10% adjustment for location because the property was within the Palmer
Ranch DRI. DX 56 (US-BB001542). Mr. Underwood applied a 25% adjustment for size
because Sale A-3 was 20.8 acres, almost 120 acres smaller than Calusa Lakes. DX 56 (US-
BB001541 to 001542). Mr. Underwood employed a negative five percent adjustment for land
use regulations because Sale A-3 was zoned for denser development than Calusa Lakes. DX 56
(US-BB001542). Thus, after adjusting for time, Mr. Underwood adjusted the price of Sale A-3
by an additional -40%, for a final adjusted price of $141,803 per acre. Id.For Sale A-4, Mr. Underwood began with the time-adjusted price of $183,213 per acre.
He determined that an adjustment for location was unnecessary because Sale A-4 was located in
an area that had been developed with smaller homes, similar to the location of Calusa Lakes.
DX 56 (US-BB001538 to 0015347). Like Sale A-4, Mr. Underwood applied a -25% adjustment
for size because Sale A-4 was 25.746 acres, more than 110 acres smaller than Calusa Lakes. DX
56 (US-BB001541 to 001542). He did not make any adjustments to account for land use
regulations because the properties were zoned to allow similar levels of development. DX 56
(US-BB001539). Mr. Underwood adjusted the time-adjusted price of Sale A-4 by -25%, for a
total adjusted price of $137,410 per acre.
The last property in Mr. Underwood’s analysis was Sale A-13. He began with its time-
adjusted price and applied a 10% adjustment for location because Sale A-13 was next to a mobile
home park and had one access point near the mobile home park. DX 56 (US-BB001541). Mr.
Underwood also applied a 10% adjustment for size because Sale A-13 was 221.77 acres,
approximately 50 acres larger than Calusa Lakes. DX 56 (US-BB001542). Mr. Underwood
determined that a -10% adjustment was necessary to account for Sale A-13 being zoned for
residential multifamily and mixed-use development, superior designations to Calusa Lakes’. Id.Mr. Underwood adjusted the time-adjusted price of Sale A-13 upward by 10%, for a final
adjusted price of $84,150 per acre.
After the adjustments, the prices of the comparison properties ranged from $84,150 to
$159,563 per acre. Mr. Underwood concluded that Sales A-1 and A-2, which sold for adjusted
prices of $159,563 and $140,393 per acre, respectively, were most like Calusa Lakes, and Sales
A-4 and A-13 were least like Calusa Lakes. DX 56 (US-BB001543). He appraised Calusa
Lakes at $145,000 per acre. Id. However, Mr. Underwood did not accept $145,000 as the
“before value” because he determined that 31.363 acres could not be developed because they
consisted of designated common space and a drainage area. DX 56 (US-BB001543 to 001545).
Following his approach for properties with restrictions, Mr. Underwood valued these 31.363
acres like a noneconomic remainder, worth 15% of land with development potential, $21,750 per
acre.
What Is the Proper “Before Value” of Calusa Lakes?
The parties disagree about the highest and best use of Calusa Lakes. Plaintiffs, who
appraised Calusa Lakes using only Unit 2, contend that the highest and best use was residential
development, and value Calusa Lakes at $175,000 per acre before the taking. Defendant
appraised Calusa Lakes using Units 1 and 2, and contends that Unit 2, the land adjacent to the
corridor, should be appraised without development potential because it consisted of lands
designated as drainage area, open space, and open space with a wetland preserve, and that the
proper “before value” is $21,750 per acre. In determining the “before value” of Calusa Lakes,
106
the Court considers Unit 2 because that is the portion of Calusa Lakes adjacent to the corridor
and the land for which Plaintiffs seek damages.
As discussed above, a property would be appraised as being subject to a use restriction if
the restriction were aimed at habitat preservation. Here, in Unit 2, a portion of the land adjacent
to the corridor was aimed at habitat preservation -- that designated as open space with a wetland
preserve in the plat and the Covenants governing the development. This designation was to
remain in effect for at least 99 years. Thus, residential development would not have been
permitted on the wetland preserve open space segment of Unit 2 in 2004. However, a drainage
area and open space are not aimed at habitat preservation, and development would not have been
precluded on such areas. Defendant did not identify the amount of acreage designated as
drainage area, open space, and wetland preserve. However, Plaintiffs only seek severance
damages for buffering 302.09 lineal feet of the land adjacent to the corridor -- 27% of the
1,109.63 lineal feet adjacent to the corridor -- because “[t]here are environmentally protected
land areas with existing vegetation along the new corridor that would not need buffering.” PX
23B (BB-PLTF-11972). Because Defendant did not quantify the amount of land designated for
habitat preservation, the Court accepts Plaintiffs’ representation that approximately three-
quarters of the land adjacent to the corridor were occupied by environmentally sensitive lands
and from this concludes that development would have been precluded on three-quarters of the
corridor. As such, three-quarters of the 1.273 acres encumbered by the trail are valued without
development potential at 15% of the value with development potential, and the remaining one-
quarter is valued with development potential.
The parties disagree about the value of Calusa Lakes with development potential --
Plaintiffs contend that Calusa Lakes was worth $175,000 per acre before the taking, while
Defendant asserts it was worth $145,000 per acre. Messrs. Durrance and Underwood used three
of the same properties in their analyses: Sale 3/A-1, Sale 6/A-2, and Sale 2/A-3, and they
disagreed about how these properties compared to Calusa Lakes in several respects. First, Mr.
Durrance rated Sale 6/A-2 and Sale 2/A-3 as inferior and slightly inferior in terms of market
conditions because the sales were contracted in May 2003, and September 2003, respectively,
when, as the appraisers agreed, the prices and demand were lower. PX 23B (BB-PLTF-11955 to
11956). However, Mr. Underwood did not apply any adjustment to Sale 6/A-2 for time of sale.
As discussed above, Mr. Durrance’s determinations about the market conditions were more
accurate, and Mr. Underwood’s focus on the closing date resulted in his improper inflation of the
value of Sales 6/A-2 and 2/A-3.
Messrs. Durrance and Underwood also disagreed about how Sale 3/A-1 compared to
Calusa Lakes with respect to location. Mr. Durrance rated Sale 3/A-1 slightly inferior because it
was in northern Sarasota near an interstate. PX 23B (BB-PLTF-11959). Mr. Underwood
determined the location of Sale 3/A-1 was similar to the location of Calusa Lakes because Sale
3/A-1 was next to rental apartments on Cattleman Road in a neighborhood with older and
smaller homes. DX 56 (US-BB001541). Mr. Underwood ignored the presence of a nearby
interstate, inflating the value of Sale 3/A-1.
The experts disagreed about how Sale 6/A-2 compared to Calusa Lakes with respect to
zoning/future land use designation. Specifically, Mr. Durrance rated Sale 6/A-2 as slightly
inferior, and Mr. Underwood did not make any adjustment to the property for that factor.
Compare PX 23B (BB-PLTF-11955 to 11956), and DX 56 (US-BB001539). Mr. Durrance
107
based his determination on the fact that Sale 6/A-2 was zoned open use estate-1, which allowed
development at one unit per five acres. Mr. Underwood also analyzed Sale 6/A-2 as zoned open
use estate-1, but he found no adjustment was necessary because it was similar to Calusa Lakes.
However, Calusa Lakes was zoned residential single-family-2, which allowed 3.5 units per acre,
a higher density than permitted on Sale 6/A-2. PX 34. Accordingly, Mr. Underwood
undervalued Calusa Lakes with respect to density.
Finally, the experts differed in their treatment of easements and encumbrances. Mr.
Durrance noted Sale 2/A-3 was encumbered with a 2.3-acre perpetual mitigation easement and
Sale 6/A-2, with an overhead transmission power line easement, and featured a creek and a
mesic hammock. Mr. Underwood did not discuss these characteristics in his analysis, which led
him to improperly inflate the values of Sale 2/A-3 and Sale 6/A-2.
Mr. Durrance’s findings with respect to market conditions, location, and zoning are more
persuasive. As such, the Court accepts Plaintiffs’ appraisal of $175,000 per acre as the “before
value” of Calusa Lakes. However, because the use restriction would limit development for the
wetlands preserve area, the Court finds that three-quarters of the land underlying the corridor on
Calusa Lakes is worth 15% of its value with development potential, or $25,987.50 per acre, and
the remaining one-quarter is valued at $175,000 per acre.
Just Compensation for Calusa Lakes
Plaintiffs seek $265,800 for the taking as it relates to Calusa Lakes, representing
$220,500 for the land encumbered and $45,300 in severance damages. Defendant contends
compensation should be limited to $27,473.89, representing the land encumbered by the corridor,
valued without development potential. The Court determined three-quarters of Calusa Lakes is
properly valued at $25,987.50 per acre before the taking, and the remaining one-quarter at
$175,000 per acre. As such, Plaintiffs are entitled to $79,700.26 for the 1.273 acres encumbered
by the corridor based on a taking of 99% of the fee interest.
While 1,108.63 lineal feet of Calusa Lakes is adjacent to the Legacy Trail, Plaintiffs seek
buffering for only 302.09 lineal feet because the majority of the land abutting the trail consists of
environmentally protected lands with existing vegetation, which provide buffering. PX 23B
(BB-PLTF-11972). Plaintiffs are entitled to compensation for the 302.09 lineal feet that lack
natural buffering because Plaintiffs proved that the trail negatively affects the value of land
adjacent to the trail. As discussed above, buffering at $67 per lineal foot is a reasonable means
of measuring the decrease in the fair market value of Plaintiffs’ property because of the trail.
Buffering 302.09 lineal feet at $67 per lineal foot would cost $20,240.03. The Court awards
Plaintiffs $99,940.29 for the taking as it relates to Calusa Lakes, representing $79,700.26 for the
land encumbered by the trail and $20,240.03 in severance damages.
The Childers Property
Plaintiffs Nathan and Deborah Childers own a 10.363-acre parcel on Pine Ranch East
Road (“Childers property”). When the taking occurred, the property included a 2,321-square
foot home that was built in 1995. PX 16B (BB-PLTF-12064). The property is located on Pine
Ranch East Road, in the Osprey area of Sarasota County. PX 16B (BB-PLTF-12074). The rail-
trail corridor is on the eastern edge of the property and runs the entire length of the property,
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measuring 734.21 feet. PX 16D. In 2004, the Childers property was in a residential estate-2
zoning district, with a future land use designation of low-density residential.
What Is the Proper “Before Value” of the Childers Property?
Before the taking, Plaintiffs valued the Childers property at $200,000 per acre, and
Defendant appraised it at $205,000 per acre. The Court accepts Mr. Durrance’s valuation of
$200,000 per acre as the “before value” of the Childers property.
Just Compensation for the Childers Property
After the taking, the Legacy Trail abutted the eastern edge of the Childers property for
734.21 lineal feet. PX 16B (BB-PLTF-12096). As a result, 0.843 of an acre of the Childers
property is encumbered by the rail-trail easement. Plaintiffs seek a total of $277,000 in damages
relating to the Childers property. Specifically, Plaintiffs seek $166,900 for a 99% taking of the
0.843 acres underlying the Legacy Trail and $110,100 for the diminution in the value of the
remainder because of the trail. 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 and
therefore contends compensation should be $171,700.
As discussed above, the proper “before” value of the Childers property is $200,000 per
acre. Thus, Plaintiffs are entitled to $166,914 for the 0.843 acres encumbered by the trail.
Further, Plaintiffs are entitled to $67 per lineal foot to mitigate the diminution in the property’s
value because of the trail, as reflected in the cost of installing a 734.21 lineal foot buffer, or
$49,192.07. Thus, the Court awards Plaintiffs $216,106.07 as compensation for the Childers
property.
The Marlin Property
The Dennis T. and Mary Ann Marlin Revocable Trust owns an 11.18-acre parcel of land
(“Marlin property”). The property is on the corner of Pine Ranch East Road and East Bay Street.
Approximately 785 feet of the property front East Bay Street, and almost 640 feet front Pine
Ranch East Road. PX 15B (BB-PLTF-12908). The property has two man-made lakes and there
is an ingress/egress easement over 25 feet of the property to provide access to Pine Ranch East
Road. PX 15B (BB-PLTF-12908 to 12909). In April 2004, the Marlin property contained a
three-bedroom home, which was built in 1985, a detached garage, and a detached greenhouse.
PX 15B (BB-PLTF-12909 to 12910). Dennis Marlin testified it was common to receive offers to
purchase the property before the taking. Tr. 1373. Mr. Marlin testified that in 2007, the County
offered to purchase his property for $3,150,000, based on a 2007 appraisal of his property. Tr.
1373; PX 48. The County appraised the Marlin property at 10.4 acres, which did not include the
encumbered strip, at approximately $300,000 per acre in 2007. Tr. 1375-76; PX 48 (US-
BB000065).
The Marlin property was designated for low-density residential development under the
comprehensive plan. Tr. 842. Its zoning district was open use estate-1, which permitted
residential development at one unit per five acres. PX 15B (BB-PLTF-12912). Ms. Allred
testified that the property would need to be rezoned to allow for denser development, and that
rezoning was reasonably probable because it was consistent with the property’s future land use
designation. Tr. 842.
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What Is the Proper “Before Value” of the Marlin Property?
Plaintiff valued the Marlin property at $200,000 per acre, and Mr. Underwood valued the
same property at $205,000 per acre. The Court accepts $200,000 per acre as the “before value”
of the Marlin property.
Just Compensation for the Marlin Property
In the “after” condition, 0.737 acres of the Marlin property is encumbered by the rail-trail
corridor. The trail is adjacent to the property for 641.8 lineal feet. Plaintiffs seek $242,200 in
damages with respect to the Marlin property, consisting of $145,900 for the land encumbered by
the easement and $96,300 for the decrease in the value of the remainder because of the Legacy
Trail. 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 parties agree that the imposition of the recreational trail easement
resulted in a 99% taking. The Court found that before the taking, the Marlin property was worth
$200,000 per acre. As such, compensation for the 0.737 acres underlying the trail is $145,926.
Plaintiffs seek damages for buffering to mitigate the harm to the property because of the trail.
The Court found that a 25-foot buffer would sufficiently mitigate the harm due to the trail. Thus,
Plaintiffs are entitled to $67 per lineal foot for a 25-foot wide buffer on the 641.8 lineal feet
adjacent to the corridor, or $43,000.60, because this property is outside the Palmer Ranch DRI.
The Court awards Plaintiffs $188,926.60 in just compensation for the taking as it relates to the
Marlin property.
The Davids Property
Patricia Davids owns a 13.6095-acre parcel of land in the Nokomis area of Sarasota
County (“Davids property”). Joint Status Report, Oct. 19, 2012.61 The Davids property is on the
east side of Twin Lakes Avenue and the north side of Astey Drive. PX 18B (BB-PLTF-12432).
The Davids property is the southernmost of Plaintiffs’ properties. Tr. 1605. On the date of
valuation, the property included a one-story home that was built in 1956. PX 18B (BB-PLTF-
12432). The property was designated for moderate-density residential development under the
comprehensive plan and zoned residential single-family-2. Tr. 841; PX 18B (BB-PLTF-12432).
Under this designation, residential development from two to five units per acre was permitted.
PX 18B (BB-PLTF-12445). In the “after condition,” the property backs up to the Legacy Trail
and is separated from it by a ditch. Tr. 89, 105.
In 2001, Ms. Davids met with the County to discuss the possibility of developing the lot
with cluster zoning. Tr. 99. She believed it could be developed at the maximum density under
the comprehensive plan, five units per acre. Tr. 101. In 2006, Ms. Davids listed the property for
sale for $4.8 million. Tr. 99-100. She did not sell the property because the market declined.
61
Mr. Durrance appraised the Davids property as a 13.579-acre parcel. See PX 18B (BB-
PLTF-12428). Mr. Underwood appraised it as a 13.64-acre property. After trial, the parties
stipulated that the Davids property was 13.6095 acres, and 0.7895 acres of the property were
encumbered by the rail-trail corridor. Joint Status Report, Oct. 19, 2012.
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moderate- to medium-density residential development, which allowed five to nine units per
acres, as opposed to two to five units per acre allowed on Davids. PX 18B (BB-PLTF-12449),
PX 37 (BB-PLTF-50493). For easements or encumbrances, Mr. Underwood assessed the
properties as similar because neither property had any easements/encumbrances that negatively
affected potential development. Mr. Durrance rated Sale 2 as slightly superior to the Davids
property.
Mr. Durrance next compared the Davids property to Sale 3, a 27.732-acre property that
was later developed into a townhouse community. Mr. Durrance rated Sale 3 as similar for
market conditions because the sale was contracted near the date of the taking -- in July 2004. PX
18E (pp. 17-18). Mr. Durrance found Sale 3 slightly inferior for location because Sale 3 was
proximate to an interstate. PX 18B (BB-PLTF-12449). He rated the properties similar with
respect to size because Sale 3 was approximately 14 acres larger than the Davids property. PX
18E (pp. 17-18). Mr. Durrance deemed Sale 3 slightly superior for zoning/future land use
because Sale 3 was designated for moderate- to medium-density residential development, which
was a higher density than that allowed on the Davids property. PX 18B (BB-PLTF-12449).
Lastly, Mr. Durrance rated the properties similar for easement/encumbrances because neither
property had any easements or encumbrances that negatively affected potential development.
PX 18B (BB-PLTF-12449). Overall, Mr. Durrance assessed Sale 3 as superior to the Davids
property.
Mr. Durrance found the last two properties in his analysis, Sales 4 and 5, to be inferior to
the Davids property. Mr. Durrance found the market conditions for Sale 4, which was contracted
in May 2003, to be slightly inferior to the subject property because while the sale was contracted
in less favorable conditions, its contract included an assignment fee that partially mitigated the
lower prices. PX 18B (BB-PLTF-12448). Mr. Durrance deemed Sale 4 slightly inferior with
respect to location because it was located on a primary east-west thoroughfare. PX 18B (BB-
PLTF-12449). Mr. Durrance assessed Sale 4 as similar to the Davids property for all of the
remaining factors because both could have moderate-density residential development and neither
contained any easements or encumbrances that impacted potential development. Id. Overall,
Mr. Durrance deemed Sale 4 inferior to the Davids property.
Mr. Durrance determined Sale 5, a 19.65-acre property with a contract that closed in late
2004, was slightly superior to the Davids property with respect to market conditions because the
sale took place in a more favorable market with higher prices. PX 18B (BB-PLTF-12448). Mr.
Durrance deemed Sale 5’s location slightly inferior to the subject property because like Sale 4, it
was on a primary east-west thoroughfare in the Nokomis area. PX 18B (BB-PLTF-12449). Mr.
Durrance rated the properties similar for size because Sale 5 was less than 10 acres larger than
the Davids property. PX 18E (pp. 17-18). Mr. Durrance rated Sale 5 slightly inferior for zoning
because Sale 5 did not have residential zoning in place when the contract closed. PX 18B (BB-
PLTF-12449). Lastly, he found Sale 5 to be inferior to the Davids property in terms of
easements/encumbrances because Sale 5 was encumbered with an overhead power line
transmission easement on its southern border. Id. Mr. Durrance assigned Sale 5 an overall
comparability rating of inferior.
Based on his analysis, Mr. Durrance concluded the Davids property ranked below Sale 2,
which sold for $157,000 per acre, and above Sale 5, which sold for $127,000 per acre. PX 18B
(BB-PLTF-12449). Mr. Durrance appraised the Davids property at $150,000 per acre. Tr. 347.
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Mr. Underwood then compared the Davids property to Sale A-10, a 15.39-acre property
that sold in March 2004. Mr. Underwood adjusted the price of Sale A-10 by -30% to reflect its
superior location to the north of the Davids property. DX 67 (US-BB002910). He did not make
any adjustments with respect to size because the properties differed in size by less than two
acres. Id. He also did not make any adjustments in terms of land use regulations because Sale
A-10 had approvals for approximately three units per acre, which was similar to the level of
development permitted on the Davids property. DX 67 (US-BB002911). In all, Mr. Underwood
adjusted the price of Sale A-10 by -30%, for a final adjusted price of $122,807 per acre.
The final property in Mr. Underwood’s analysis was Sale A-15, a 19.2-acre property in
the Nokomis area of Sarasota County. Mr. Underwood did not make any adjustments for
location because Sale A-15 was approximately 800 feet southeast of the Davids property. DX 67
(US-BB002907 to 002908). He noted that Sale A-15 had slightly superior access and exposure
than the Davids property. DX 67(US-BB002907). Mr. Underwood did not make any
adjustments for size because Sale A-15 was less than 10 acres larger than the subject property.
DX 67 (US-BB002908). Lastly, Mr. Underwood did not make any adjustments for land use
regulation because both properties were zoned for residential development at two to five units
per acre. DX 67 (US-BB002907 to 002908). Mr. Underwood did not apply any adjustments to
Sale A-15, leaving Sale A-15 at its original price of $115,104. Mr. Underwood did not adjust for
time unless the sale was at least 6 months before or after.
Based on his analysis, Mr. Underwood determined that Sale A-15 was most similar to the
Davids property, and he gave it the most weight in his appraisal. DX 67 (US-BB002912). He
determined that because Sales A-1 and A-4 required substantial adjustments, they represented
the upper end of the value range. Mr. Underwood appraised the Davids property at $120,000 per
acre before the taking. Id.What Is the Proper “Before Value” of the Davids Property?
Plaintiffs contend that the Davids property was worth $150,000 per acre before the
taking, while Defendant argues it was worth $120,000 per acre. Messrs. Durrance and
Underwood each found a different property to be most similar to the Davids property. Mr.
Underwood determined that Sale A-15, which sold for an adjusted price of $115,104 per acre,
was most similar to the Davids property, while Mr. Durrance concluded that Sale 2, which sold
for $157,000 per acre, was most similar. Compare DX 67 (US-BB0052912), and PX 17B (BB-
PLTF-12449). Neither expert had considered the property the other found most similar in his
comparable sales analysis.
Mr. Underwood determined that Sale A-15, which was located approximately 800 feet
southeast of the Davids property and zoned identically to the Davids property -- was most similar
to the Davids property because of its similar location and zoning designation. DX 67 (US-
BB0052912). While Sale A-15 had slightly superior access and was six acres larger than the
Davids property, Mr. Underwood determined that these differences did not warrant any
adjustment. DX 67 (US-BB005207). Sale A-15 closed in March 2004, and the record does not
contain its contract date.
Mr. Durrance found that Sale 2, which was contracted near April 2004, was most similar
to the Davids property. Mr. Durrance rated Sale 2 similar for market conditions, location, size,
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and easement/encumbrances and slightly superior for zoning. PX 17B (BB-PLTF-12447). Sale
2 was zoned residential single-family-2, with moderate- to medium-density residential
development as its future land use designation -- meaning it could be developed at a density of
five to nine units per acre. PX 17E (p. 17), PX 37 (BB-PLTF-50493). The Davids property was
limited to two to five units per acre because it was designated for moderate-density residential
development. PX 17E (p. 17), PX 37 (BB-PLTF-50493). While Sale 2 was zoned for denser
development, Mr. Durrance noted development was limited, stating: “[t]he property contains just
under 14 acres of land, of which only about seven acres are considered developable.” PX 17B
(BB-PLTF-12447). Mr. Durrance did not explain why seven acres of Sale 2 were
undevelopable.
The Court is persuaded by Mr. Underwood’s analysis that Sale A-15 is most similar to
the Davids property. Sale A-15 was 800 feet southeast of the Davids property and did not
warrant adjustment for any factor. DX 67 (US-BB0052908, US-BB0052912). In contrast, Sale
2 could be developed at up to four more units per acre than the Davids property, a significant
difference. The aspects in Mr. Underwood’s technique that the Court found unpersuasive with
respect to his appraisal of other properties -- the large-lot adjustment, failure to address
easements, encumbrances, and environmental lands, and use of the closing date -- are not
pertinent here. As such, the Court finds the Davids property is properly valued at $120,000 per
acre.
Just Compensation for the Davids Property
After the taking, 0.789 acres of the Davids property is encumbered by the rail-trail
corridor. PX 18B (BB-PLTF-12451); DX 67 (US-BB002916); Joint Status Report, Oct. 19,
2012. Plaintiffs seek $117,200 in damages for the land encumbered by the corridor and
$103,100 in severance damages for the taking as it relates to the Davids property. Defendant
contends that compensation should be limited to the land taken, a 99% taking.
A 99% taking of the 0.7895 acres encumbered by the corridor, with the land valued at
$120,000 per acre, results in compensation of $93,792.60 for the land encumbered. As discussed
above, severance damages for the effect of the trail on property values can be measured by the
cost of a 25-foot buffer on the land adjacent to the trail. On the Davids property, outside the
Palmer Ranch DRI, 687 lineal feet of land abuts the Legacy Trail, and buffering 687 lineal feet at
$67 per lineal foot results in $46,029 in compensation. The Court awards Plaintiffs $139,821.60
in just compensation with respect to the Davids property.
The Mirman Property
Ilene Mirman owns a 14.478-acre property in the Nokomis area of Sarasota County
(“Mirman property”). PX 17B (BB-PLTF-12182). The property fronts Myrtle Drive and Sunset
Avenue. PX 17C. In April 2004, the property included a two-bedroom house, which was built
in 1970. PX 17B (BB-PLTF-12186). After the taking, the Legacy Trail bordered the Mirman
property on the western edge for 678.15 lineal feet. PX 17D. The comprehensive plan
designated the Mirman property for moderate-density residential development. It was zoned as
residential estate-one, which permitted “large lot, estate-type development.” PX 17B (BB-
PLTF-12199). The property would need to be rezoned if the developer wanted to use the
property for denser residential development, and once rezoned, it could be developed at five to
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were lower, but the sale included a $400,000 contract assignment fee that partially mitigated the
effect. PX 17B (BB-PLTF-12225). He deemed the location of Sale 1 similar to the Mirman
property because it was also on an unimproved road in the Nokomis area of the County. PX 17E
(p. 21). Mr. Durrance also found Sale 1 similar to the Mirman property with respect to
environmental lands because both properties contained less than five percent environmental
lands and for easements/encumbrances because neither had any significant easements or
encumbrances. Id. Mr. Durrance assigned Sale 1 an overall comparability rating of similar.
Mr. Durrance next compared the Mirman property to Sale 2. He found that the market
conditions for Sale 2 were slightly inferior because the sale was contracted in September 2003,
well before the real estate market hit its peak. However, the $1,891,500 assignment fee partially
mitigated the negative effect of the September 2003 contract date. PX 17B (BB-PLTF-12202).
Mr. Durrance determined that Sale 2’s location was superior to the Mirman property because
Sale 2 was in central Sarasota and adjacent to the Palmer Ranch DRI. PX 17E (p. 21).66 Mr.
Durrance rated Sale 2’s zoning/future land use designation slightly superior because
development at a density of seven dwelling units per acre was permitted on Sale 2. PX 17B
(BB-PLTF-12202, BB-PLTF-12227). He assessed Sale 2 as similar with respect to
environmental lands because the properties had a similar amount of such lands. PX 17E (p. 21).
Finally, he deemed Sale 2 slightly inferior in terms of easements/encumbrances because Sale 2
had a perpetual mitigation easement that prohibited development on 2.3 acres of the property.
Id.Mr. Durrance compared the Mirman property to Sale 3, a property that sold in July 2004.
Because Sale 3’s contract was signed around the same time as the taking, Mr. Durrance rated
Sale 3 as similar for market conditions. PX 17E (p. 21). He rated Sale 3 as slightly inferior for
location because it was in northern Sarasota County and adjacent to the interstate. PX 17E (p.
21). Mr. Durrance found the zoning/future land use designation of Sale 3 was slightly superior
to the Mirman property because 5.77 dwelling units per acre were permitted. PX 17B (BB-
PLTF-12202, BB-PLTF-12230). Mr. Durrance determined that Sale 3 was inferior to the
Mirman property with respect to environmental lands because almost one-fourth of Sale 3
contained such lands. PX 17E (p. 21), PX 17B (BB-PLTF-12201). Lastly, he found the
properties to be similar for easements/encumbrances because neither property had any easements
or encumbrances that significantly affected the properties. PX 17E (p. 21). Overall, Mr.
Durrance found Sale 3 was slightly superior to the Mirman property.
Mr. Durrance compared Sale 4 to the Mirman property and found that the market
conditions for Sale 4 were slightly inferior because the sale was contracted in May 2003. PX
17B (BB-PLTF-12232), PX 17E (p. 20). He also found Sale 4 slightly inferior for location
because it was along the primary east-west thoroughfare in the Nokomis area. PX 17E (p. 21).
Mr. Durrance deemed Sale 4 slightly superior for zoning because development at a density of
4.62 dwelling units per acre was permitted. PX 17B (BB-PLTF-12202, BB-PLTF-12232). He
appraised Sale 4 as similar with respect to environmental lands because each property contained
66
The summary table in Mr. Durrance’s appraisal report for the Mirman property rates
Sale 2 as superior for location, but the location of Sale 2 is characterized as slightly superior in
the narrative discussion of adjustments, a description the Court adopts. Compare PX 17B (BB-
PLTF-12202), and PX 17E (p. 21).
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Mr. Underwood first compared the Mirman property, in the Nokomis area, to Sale A-1, a
property in central Sarasota County. Mr. Underwood applied a -40% adjustment to Sale A-1 to
reflect the fact that “property values in central Sarasota County tend to be higher than those in
the subject’s neighborhood and surrounding area.” DX 66 (US-BB002824). He applied a 5%
adjustment for size because Sale A-1 was over 20 acres, while the Mirman property was 14.4782
acres. DX 66 (US-BB002822). Mr. Underwood determined Sale A-1 was zoned residential
multifamily-3, which allowed 13 units per acre, but the property was actually developed at 5.77
units per acre. DX 66 (US-BB002824). He did not make any adjustments for land use
regulations because the Mirman property could be developed at a similar density, five units per
acre. Mr. Underwood adjusted Sale A-1 by -35%, for a final adjusted price of $138,288 per acre.
Mr. Underwood next considered Sale A-4. He began with the time-adjusted price of
$183,213. He applied a -40% adjustment for location because like Sale A-1, Sale A-4 was in
central Sarasota County where prices were higher. DX 66 (US-BB002824). Mr. Underwood
applied a five percent adjustment to Sale A-4 because it was over 20 acres. Id. Mr. Underwood
found Sale A-4 was zoned residential single-family-3 and was developed as a residential
subdivision at a density of 2.49 units per acre. DX 66 (US-BB002825). Because this was a
density lower than permitted on the Mirman property, he applied a 10% adjustment to reflect the
Mirman property’s advantage. Mr. Underwood did not say how he arrived at 10%. He applied
the same percentage adjustment to A-10, which was zoned to allow three units per acre. After
adjusting for time, Mr. Underwood applied a -25% adjustment, resulting in a final adjusted price
of $137,410 per acre.
The third property in Mr. Underwood’s analysis for the Mirman property was Sale A-10,
which was located in central Sarasota County. Mr. Underwood applied a -30% adjustment for
location because Sale A-10 was in a better area than the subject property, but it was not as
desirable as the areas where Sales A-1 and A-4 were located. DX 66 (US-BB002824). Mr.
Underwood did not apply a size-based adjustment because like the subject property, Sale A-10
was less than 20 acres. Id. Mr. Underwood employed a 10% adjustment for land use regulations
because Sale A-10 had approval for development at approximately three units per acre, which
was less than the five allowed on the Mirman property. DX 66 (US-BB002825). In all, Mr.
Underwood adjusted Sale A-10 by -20%, for a final adjusted price of $140,351 per acre.
Sale A-15 was the final property in Mr. Underwood’s analysis. He determined a
location-based adjustment was not necessary because Sale A-15’s location was similar to that of
the subject property, as both were in the Nokomis area. DX 66 (US-BB002824). Mr.
Underwood did not make any adjustment for size because both Sale A-15 and the Mirman
property were less than 20 acres. DX 66 (US-BB002824). He applied a 10% adjustment for
land use regulations because Sale A-15 was designated for development at 3.5 units per acre,
which was less than the five units per acre permitted on the Mirman property. Mr. Underwood
adjusted Sale A-15 by 10%, for an adjusted price of $126,614 per acre.
After applying these adjustments, the prices of the comparable properties ranged from
$126,614 to $140,351 per acre. Mr. Underwood gave Sale A-15 the most weight because it
required the least adjustment and was most similar to the Mirman property in terms of location.
Mr. Underwood gave Sales A-4 and A-10 the next highest weight. Based on his analysis, Mr.
Underwood appraised the Mirman property at $130,000 -- a higher value than A-15 because A-
15 had an inferior land use designation.
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What Is the Proper “Before Value” of the Mirman Property?
Plaintiffs valued the Mirman property at $175,000 per acre, and Defendant contends the
proper “before value” was $130,000 per acre. Messrs Durrance and Underwood used two of the
same properties in their analyses: Sale 3/A-1 and Sale 1/A-10. Mr. Durrance concluded that Sale
1/A-10 was most similar to the Mirman property, while Mr. Underwood determined that Sale A-
15, a property Mr. Durrance did not use, was most similar to the Mirman property. Mr. Durrance
found that Sale 1/A-10, which sold for $176,000 per acre in late March 2004, was similar to the
Mirman property because the properties differed in size by less than one acre, were in similar
locations, had less than five percent environmental lands, and had no easements or encumbrances
that impacted potential development. PX 17B (BB-PLTF-12201 to 12202). Mr. Durrance
deemed Sale 1/A-10’s slightly superior zoning to be offset by Sale 1/A-10’s slightly inferior
market conditions.
Mr. Underwood determined that Sale 1/A-10, which he opined had an adjusted sales
price of $140,351, differed from the Mirman property with respect to location and land use
regulations. Mr. Underwood deemed Sale 1/A-10’s location in northern Sarasota County
superior and applied a -30% adjustment, but he did not explain why he viewed its location as
better than that of Mirman. DX 66 (US-BB002824). Sales A-1 and A-4 were also located in
northern Sarasota County, and Mr. Underwood applied a -40% adjustment to those properties
without explaining why the locations of those two properties were 10% better than the location
of Sale 1/A-10. Id. Additionally, when comparing Sale 1/A-10 to the Mirman property, Mr.
Underwood used the March 2004 sale date, instead of the late 2002 and early 2003 contract
dates, and he did not consider the fact that the buyer of Sale A-10 paid a $400,000 assignment
fee. As a result, Mr. Underwood overvalued Sale 1/A-10 and undervalued Mirman.
Mr. Underwood selected Sale A-15 as the property that was most similar to the Mirman
property. When comparing the Mirman property to Sale A-15, Mr. Underwood did not give
sufficient weight to land use regulations. Specifically, he adjusted Sale A-15 by 10% because
development at 3.5 units per acre was permitted -- less than the five to nine units permitted on
the Mirman property. Mr. Underwood recognized that development at five to nine units per acre
was permitted on the Mirman property, but he determined that “[c]onsidering the current zoning,
the [future land use] designation would be reasonable at five units per acre, or the low end of the
range.” DX 66 (US-BB002815). Mr. Underwood did not explain why he determined Mirman
was limited to the low end of the range. Mr. Underwood’s 10% adjustment for land use
regulations did not sufficiently take into account that denser development between five and nine
units per acre was permitted on the Mirman property, while only 3.5 units per acre were
permitted on Sale A-10. This led Mr. Underwood to undervalue the Mirman property.
As such, the Court accepts Mr. Durrance’s appraisal of $175,000 per acre as the proper
“before value” of the Mirman property.
Just Compensation for the Mirman Property
After the taking, 0.778 acres of the Mirman property were encumbered by the rail-trail
corridor. The trail abuts 678.15 lineal feet of the property. Plaintiffs seek $236,500 in
compensation for the taking as it relates to the Mirman property. Specifically, Plaintiffs seek
$134,800 for the part taken and $101,700 in severance damages for the decrease in the property’s
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value because of the trail, as measured by the cost to buffer land adjacent to the corridor.
Defendant argues compensation should be limited to the land taken.
As discussed above, the Mirman property was worth $175,000 per acre before the taking.
The corridor encumbers 0.778 acres of the property, resulting in an award of $134,788.50 for the
land encumbered. Plaintiffs have established that the Legacy Trail adversely affected property
values, and that the cost of buffering the land adjacent to the trail at $67 per lineal foot to
mitigate the harm to the remainder, is less than the diminution in value to the remainder. As
such, the Court finds the cost of buffering is a reasonable measure of severance damages.
Accordingly, Plaintiffs are entitled to $134,788.50 for the land taken and $45,436.05 (678.15
lineal feet x $67) in severance damages, for a total award of $180,224.55 for the Mirman
property.
The Glueck Property
Plaintiff, A. Merle Clark Glueck, as Trustee of the A. Merle Clark Glueck Trust, owns a
23.527-acre parcel that is located on the north side of Preymore Street in the Osprey area of
Sarasota County (“Glueck property”).68 In 2004, the Glueck property was used as an automobile
salvage yard, which was a non-conforming use. Its status as a non-conforming use meant the
owners could continue to use the property as a salvage yard but could not expand or intensify
this use. In addition, if the use ceased for one year, they would lose the right to continue the
nonconforming use. Tr. 836. After the taking, the Glueck property was encumbered by the rail-
trail corridor on its eastern edge. PX 20D.
The Glueck property was designated for moderate-density residential development under
the comprehensive plan. Tr. 835. The property was surrounded by residential developments. It
was zoned open use estate-1, but Ms. Allred testified that it was reasonably probable that it could
be rezoned for denser development consistent with the comprehensive plan because the County
expected to use open use estate parcels for infill development. Tr. 835-36.
What Is the Proper “Before Value” of the Glueck Property?
Both appraisers valued the Glueck property at $200,000 per acre before the taking, a
finding the Court accepts as reasonable and supported by the record. As such, the proper “before
value” of the Glueck property is $200,000 per acre.
Motion to Strike Expert Testimony Regarding Buffering on the Glueck Property
Plaintiffs moved to strike Mr. Bass’ testimony about the buffering that would be required
if the Glueck property were developed. At trial, Mr. Bass, Defendant’s expert on land use
planning, testified that a moat and vegetation on the Glueck property provided sufficient
buffering. Mr. Bass testified:
Q Have you been able to personally observe the type of perimeter buffering
that surrounds the Glueck property?
68
An aerial image of the Glueck property is located in Appendix K.
125
A Yes. The majority of it, yes.
Q In your opinion, would there be any need to build any sort of additional
buffering around the Glueck property should it be developed as residential
development, any form of residential development?
A No. There’s no requirement for residential to residential for buffering.
Q But let me ask you this. If buffering were required under the Code, is that
existing vegetation sufficient to comply with any buffering requirement
under the Sarasota County Code?
A I would answer that generally, yes, not having been on the property to
observe exactly what all of the vegetation is on the property for
compliance with the Code as far as native vegetation.
So if there’s some exotics in there that would need to be pulled out, but
there’s adequate buffering with the moat around the property.
***
THE WITNESS: Well, if you look at the graphic, the aerial
photograph, you’ll see a dark area between the two landscapings.
***
THE WITNESS: It sort of goes around the property.
***
THE WITNESS: Basically it’s a canal. It’s a moat. It’s a waterway.
So we have landscaping from the trail side. We have the moat. We have
vegetation on the property on each side.
THE COURT: So you count the moat as buffering?
THE WITNESS: It’s a buffer. It’s a setback.
Tr. 1104-06.
Plaintiffs moved to strike testimony about whether it would be necessary to install a
buffer if the Glueck property were developed, arguing Mr. Bass did not discuss the moat,
buffering, or berming on the Glueck property in his expert report, and his testimony should be
limited to the information contained in report. Tr. 1106-07. Defendant contended that Mr. Bass
was designated as an expert in buffering, he had testified about buffering requirements in
general, and could testify about buffering requirements as they related to a specific property. Tr.
1107-08. Defendant argued that while Plaintiffs’ counsel did not examine Mr. Bass at his
deposition about buffering requirements, that should not preclude his testimony at trial. The
Court reserved ruling on the motion to strike to allow a full review of Mr. Bass’ report. Tr.
126
1111.69
Rule 26(a)(2)(B) of the Rules of the United States Court of Federal Claims (“RCFC”)
provides:
(B) Witnesses Who Must Provide a Written Report. Unless otherwise
stipulated or ordered by the court, this disclosure must be accompanied by a
written report—prepared and signed by the witness—if the witness is one retained
or specially employed to provide expert testimony in the case or one whose duties
as the party’s employee regularly involve giving expert testimony. The report
must contain:
(i) a complete statement of all opinions the witness will express and the basis
and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in
the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in
the case.
RCFC 26(a)(2)(B).70
The Seventh Circuit articulated the requirements for an expert report:
Rule 26(a) expert reports must be “detailed and complete.” Fed. R. Civ. P. 26
Advisory Committee’s note; see also Sierra Club v. Cedar Point Oil Co., 73 F.3d
546, 571 (5th Cir. 1996), cert. denied, 519 U.S. 811, 117 S. Ct. 57, 136 L. Ed. 2d
20 (1996). A complete report must include the substance of the testimony which
an expert is expected to give on direct examination together with the reasons
therefor. Fed. R. Civ. P. 26 Advisory Committee’s note; see also Smith v. State
Farm Fire & Cas. Co., 164 F.R.D. 49, 53 (S.D. W.Va. 1995); cf. Walsh v.
McCain Foods Ltd., 81 F.3d 722, 727 (7th Cir. 1996). The report must be
complete such that opposing counsel is not forced to depose an expert in order to
69
Mr. Bass’ expert report is not part of the trial record. In response to a Court order,
Defendant filed the report on January 7, 2013. The Court uses “Bass Report” to reference Mr.
Bass’ expert report and citations to page numbers are to the Bates numbers.
Mr. Bass’ deposition is not in the record.
70
RCFC 26(a)(2)(B) and RCFC 37(c)(1) are identical in relevant part to Rules
26(a)(2)(B) and 37(c)(1) of Federal Rules of Civil Procedure.
127
avoid ambush at trial; and moreover the report must be sufficiently complete so as
to shorten or decrease the need for expert depositions and thus to conserve
resources. See Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277, 284
(8th Cir.), cert. denied, 516 U.S. 822, 116 S. Ct. 84, 133 L. Ed. 2d 42 (1995).
Expert reports must not be sketchy, vague or preliminary in nature. Fed. R. Civ.
P. 26 Advisory Committee’s note; see also Sierra Club, 73 F.3d at 571.
Disclosures must not be used as a means to extend a discovery deadline. See id.Expert reports must include “how” and “why” the expert reached a particular
result, not merely the expert’s conclusory opinions. See Reed v. Binder, 165
F.R.D. 424, 429 (D.N.J. 1996).
Salgado v. Gen. Motors Corp., 150 F.3d 735, 741 n.6 (7th Cir. 1998).
The summary to Mr. Bass’ expert report speaks to buffering requirements in general:
Issue - Buffering:
Applicable to the parcels under analysis, there are two county
landscaping/buffering standards applied. For parcels approved in 2003 and before
there is one set of landscaping and buffering requirements. For parcels developed
or to be developed after 2004 the current zoning code applies, which was in effect
in 2004.
As of the adoption of the revised Zoning Regulations in 2004, applicable to all
parcels is Sarasota County Zoning Regulations, Section 7.3.4.c addressing
buffering. This section indicates that no landscaping buffers are required for
wetlands and preserve areas. This section applies to several of the developed
parcels where the areas abutting the trail corridor are in fact wetland and preserve
areas and no buffering is required.
***
In summary, while a developer may desire to have more stringent setbacks or
buffering requirements for properties adjacent to public roads, market data
indicates that developers only apply county setback and buffering requirements
along the trail and/or trail corridors, including development within the Palmer
Ranch DRI.
Bass Report (US-RB006130 to 006131).
Mr. Bass’ report for the Glueck property states in its entirety:
GLUECK PARCEL
ZONING ANALYSIS
The subject is a grandfathered nonconforming use. Its historical and present use
is as a commercial salvage operation.
As a nonconforming use, the use cannot be expanded onto other portions of its
128
site. Therefore, the gaining of a 50 foot wide strip along its eastern property line
of 1.527. acres has no measurable benefit to the parent tract, its present use. See
Article 8, Sarasota County Zoning Regulations.
Glueck’s closed their US 41/Church Street location and consolidated operations at
the subject location.
There is no reasonable probability that this use will discontinue in the foreseeable
future.
As of 2004, there were alternative sites available for sale that did not or does not
have the potential hazardous impacts as the subject site.
Attachment
Bass Report (US-RB006234).
Notably absent from Mr. Bass’ expert report is any discussion of the buffering required
for the Glueck property. This absence stands in stark contrast to Mr. Bass’ analysis of other
properties, where he included sections specific to buffering. For example, Mr. Bass’ report on
Arielle provides in pertinent part:
Rezone Petition 01-11 required Buffer “B” along the rail corridor with
landscaping provided adjacent to only residential development, and only native
vegetation to be retained to the area south and adjacent to wetland preservation,
lake and litoral areas and other open space. In other words, only a small portion
of the frontage onto the rail corridor required buffering, about the north 1/3 of the
parent tract - from the north property line to Prosperity Circle. The balance of the
parcel had no buffering requirements.
Rezone Petition 03-11 or the then existing zoning regulations did not set forth a
“required” buffer width.
Bass Report (US-RB006135 to 006136). Similarly, Mr. Bass’ report on JMC states:
It is noted that the only buffering of the trail is for a limited portion along the
eastern boundary line abutting (across the trail corridor) residential dwellings of
Mission Estates. Further, the buffer is limited to 20 feet [in] width. There is no
buffering indicated in the southeastern corner of the subject property abutting
residence in an area (across the trail corridor) commonly referred to as Mission
Valley.
Also, as per the Sarasota County Zoning Regulations, Section 7.3.4.c no
landscaping buffers are required for wetlands and preserve areas. Instead,
Resource Protection requires natural buffers in these areas.
see also Bass Report (US-RB006260).
RCFC 37 provides in pertinent part:
129
If a party fails to provide information or identify a witness as required by RCFC
26(a) or (e), the party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless. In addition to or instead of this sanction, the
court, on motion and after giving an opportunity to be heard: (A) may order
payment of the reasonable expenses, including attorney’s fees, caused by the
failure . . . and (C) may impose other appropriate sanctions, including any of the
orders listed in RCFC 37(b)(2)(A)(i)–(vi).
RCFC 37(c)(1); see Rogers v. United States, 96 Fed. Cl. 472, 475 (2011); Scott Timber, Inc. v.
United States, 93 Fed. Cl. 221, 226 (2010). “[C]ourts applying the counterparts to these rules in
the Federal Rules of Civil Procedure have held that the sanction of exclusion is mandatory under
Fed. R. Civ. P. 37(c)(1) unless the offending party can show that its violation of Fed. R. Civ. P.
26(a) was either justified or harmless.” Scott Timber, 93 Fed. Cl. at 226 (citing Santiago–Diaz v.
Laboratorio Clinico Y De Referencia Del Este, 456 F.3d 272, 276 (1st Cir. 2006)).
In his expert report, Mr. Bass did not discuss the buffering that would be required for
residential development on the Glueck property. Nonetheless, at trial Mr. Bass proceeded to
opine that there would be no need for additional buffering on the Glueck property if it were
developed as residential. Mr. Bass’ failure to disclose this opinion in his expert report requires
the exclusion of his trial testimony. Defendant has not demonstrated that its violation of Rule
26(a) was justified or harmless. Plaintiffs’ motion to strike is granted. Mr. Bass’ testimony
about whether buffering would be required if the Glueck property were used for residential
development, at trial transcript pages 1104 through 1112, is stricken from the record. See
Salgado, 150 F.3d at 742 n.6; MMG Ins. Co. v. Samsung Elecs. Am., Inc., 11-CV-430-JL, 2013
WL 2444033, *2-3 (D.N.H. June 5, 2013); In re Chantix (Varenicline) Prods. Liab. Litig., 889 F.
Supp. 2d 1272, 1303 (N.D. Ala. 2012); LaSalle Bank Nat’l Ass’n. v. CIBC Inc., No. 08 Civ.
8426 (WHP)(HBP), 2012 WL 466785, at *9 (S.D.N.Y. Feb. 14, 2012). But see Rogers, 96 Fed.
Cl. at 476-77 (denying Defendant’s motion to strike expert’s trial testimony on the cost of
buffering and lost access as severance damages because both were disclosed in the expert’s
report).
Just Compensation for the Glueck Property
After the taking, the Legacy Trail abutted the eastern edge of the Glueck property,
measuring 1,330 lineal feet. PX 20B (BB-PLTF-12343). Plaintiffs seek $537,800 for the taking-
- $302,300 for the part taken and $235,500 in severance damages, representing $199,500 as the
cost to install a buffer 1,330 lineal feet in length, and $36,000 for increased security costs.
Defendant contends compensation should be limited to the land encumbered by the easement.
Defendant further argues no additional buffering would be required if the Glueck property were
used for residential development because “[t]here is extensive buffering between the Trails Act
easement and the Glueck property, including a large water-filled ditch or moat and vegetation of
both sides of the ditch.” Def.’s Post-Trial Br. 33.
Mr. Durrance testified as to why he believed damages for the cost to construct a buffer on
the Glueck property were necessary:
130
Q For the Glueck property, you calculated damages to their
remainder based on 150 linear feet -- or $100 per linear foot for 1,330 linear feet.
And that’s the entire length of the property where it abuts the right-of-way. Isn’t
that correct?
A That sounds about right, yes.
Q Isn’t it true at the Glueck property there is a very large moat
between what is being used as a salvage yard and the railroad right-of-way?
A There is a ditch, yes.
Q That’s a pretty big ditch, isn’t it?
A Yes. It was dug years ago, is my understanding, to help fill the
property years ago, yes.
***
Q And do you see on the eastern boundary this rather large ditch
adjacent to the railroad corridor, correct?
A I do, yes.
Q And it’s also true that there is extensive vegetation on the Glueck
property between the ditch and the open area that’s used for salvage yard
purposes, correct?
A There is vegetation along the ditch bank on the west side. That is
correct.
Q And it’s also true, is it not, that there is extensive vegetation on the
side adjacent to the railroad corridor? Isn’t that correct?
A There is vegetation there as well, yes, sir.
Q And it’s also true that some of that vegetation is actually on the
Glueck property and not within the railroad right-of-way. Isn’t that correct?
A Yes. If this [PX 20C (aerial photograph of the Glueck property)] is
an accurate representation, that would be correct.
***
Q You included a damage amount for buffering even though there is
already a very substantial buffer that was existing on the date of the alleged take,
correct?
A That is correct, yes. There is a ditch there, that’s correct, and
vegetation.
131
Q And actually, the property opposite to the east, there is a large lake
and additional landscape buffering.
A Yes.
Q Additional vegetation anyway. Isn’t that right?
A Yes. When they developed, they created that as a stormwater pond
or a lake, if you refer to it that way. And that was developed in that manner, and
they dug it and put the water there. So yes. And I’ll say this also on Glueck, if it’s
appropriate. I didn’t value the property as commercial, which given the
commercial auto salvage, we have a higher land value for a property such as this.
You would not necessarily or you wouldn’t want a buffer. You wouldn’t need a
buffer. I valued it as a residential subdivision based on the comp plan and the
zoning. And consistent with that, you’re going to have some type of buffer or
choose not to.
Tr. 553-57. Thus, Plaintiffs’ expert acknowledged the moat and existing vegetation on both
sides of the trail. Plaintiffs have not demonstrated that there would be a need to mitigate the
impact of the trail on the property’s value with additional buffering because a natural buffer was
already in place. As such, Plaintiffs have not demonstrated entitlement to compensation for the
cost to buffer the Glueck property.
Plaintiffs also seek $36,000 for increased security measures, costs to install security
cameras, motion detectors, and monitors to prevent burglaries due to the Legacy Trail. PX 20B
(BB-PLTF-12342 to 12343). Defendant did not specifically contest Plaintiffs’ claim for security
costs, but argued generally that compensation should be limited to the land underlying the
corridor.
The costs of increased security because of the construction of the Legacy Trail constitute
consequential damages, as they are an indirect result of the taking. Yuba Natural Res., Inc. v.
United States, 904 F.2d 1577, 1581 (Fed. Cir. 1990) (“It is a well settled principle of Fifth
Amendment taking law . . . that the measure of just compensation is the fair value of what was
taken, and not the consequential damages the owner suffers as a result of the taking.”); Klein v.
United States, 179 Ct. Cl. 910, 916 (1967) (per curiam) (“It is settled law that . . . compensation
under the Fifth Amendment may be recovered only for property taken and not for incidental or
consequential losses, the rationale being that the sovereign need only pay for what it actually
takes rather than for all that the owner has lost.”). As the Eight Circuit explained, a takings
plaintiff cannot recover consequential damages:
The taking of a tract of land or part of a tract by the government may not only
deprive the landowner of his property but may also inflict upon him incidental or
consequential damages. While the rule may appear unjust, it is well settled that
the landowner is not entitled, at least within the framework of a condemnation
suit, to be compensated for such consequential damages as loss of business,
relocation expenses, and the like.
United States v. 91.90 Acres of Land, 586 F.2d 79, 87 (8th Cir. 1978) (citing Kimball Laundry
132
Co. v. United States, 338 U.S. 1, 11-12 (1949); see also United States v. Petty Motor Co., 327
U.S. 372, 377-78 (1946); United States ex rel. TVA v. Powelson, 319 U.S. 266, 281-86 (1943);
United States v. 967,905 Acres of Land, 447 F.2d 764, 768-69 (8th Cir. 1971)); see also Yuba
Natural Res. Inc. v. United States, 904 F.2d 1577, 1581 (Fed. Cir. 1990).
Plaintiffs are not entitled to compensation for the cost to buffer or increased security costs
with respect to the Glueck property. The Court awards $302,346 as compensation related to the
taking of the Glueck property, representing the value of the 1.527 acres encumbered.
Conclusion
The Clerk is directed to enter judgment in favor of Plaintiffs in the amount of
$5,751,579.73, apportioned amongst Plaintiffs as shown in the table below.
The Court does not determine what rate of interest should be applied as the parties have
filed cross-motions for summary judgment on that issue.
Plaintiff Damages for Land Severance Damages
Encumbered
Mission Valley Golf & Country Club, Inc. $413,374.50 $139,250.12
Stoneybrook Golf & Country Club of $855,756.00 $232,026.30
Sarasota, Inc.
TPC-Prestancia, Inc. $772,794.00 ---
Pulte Home Corporation $178,696.12 ---
JMC Real Estate Holdings, LLC $756,310.50 $268,000.00
Palmer Ranch Holdings, Ltd. $338,976.00 ---
Pine Ranch East Owners Association, Inc. $516,673.08 $152,358.00
Calusa Lakes Community Association, Inc. $79,700.26 $20,240.03
Nathan and Deborah Childers $166,914.00 $49,192.07
Dennis T. and Mary Ann Marlin Revocable $145,926.00 $43,000.60
Trusts
Patricia M. Davids $93,792.60 $46,029.00
Ilene Mirman $134,788.50 $45,436.05
133
A. Merle Clark Glueck Trust $302,346.00 ---
s/Mary Ellen Coster Williams
MARY ELLEN COSTER WILLIAMS
Judge
134
Appendix C: Aerial View of TPC
PX 26D
137
Appendix D: Aerial View of Arielle
PX 22C (BB-PLTF-51851)
138
Appendix E: Arielle Conceptual Development Plan
DX 19 (US-RB006164)
139
Appendix F: Plat for Arielle
DX 38 (US-RB006138)
140
Appendix G: Aerial View of JMC
PX 21C
141
Appendix H: Aerial View of Palmer Ranch
DX 5A
142
Appendix I: Aerial View of Pine Ranch East
PX 27D
143
Appendix J: Aerial View of Calusa Lakes
PX 23D
144
Appendix K: Aerial View of the Glueck Property
PX 20C
145