Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. 269 Acres

United States District Court, D. South Carolina, Beaufort Division

March 14, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
269 ACRES, MORE OR LESS, LOCATED IN BEAUFORT COUNTY, STATE OF SOUTH CAROLINA; HAROLD E. TRASK, JR.; JOHN DONALD TRASK; JAMES HEIDE TRASK; MARGARET SCHEPER TRASK; WILLIAM D. TRASK, JR. AS TRUSTEE OF THE WILLIAM D. TRASK JR. TRUST UNDER ARTICLE NINE OF THE WILLIAM D. TRASK REVOCABLE TRUST DATED FEBRUARY 17, 2000; SARAH T. BURRUS, AS TRUSTEE OF THE SARAH T. BURRUS TRUST UNDER ARTICLE NINE OF THE WILLIAM D. TRASK REVOCABLE TRUST DATED FEBRUARY 17, 2000; ROBERT EDWARD L. HOLT III, AS TRUSTEE OF THE KITTY TRASK HOLT FAMILY TRUST-MARITAL BOTH UNDER THE LAST WILL AND TESTAMENT OF KITTY TRASK HOLT DATED JUNE 8, 2004; ET AL, Defendants.

          FINAL DETERMINATION OF JUST COMPENSATION AND RECOMMENDATIONS BY THE COMMISSION

         I. INTRODUCTION

         This is a land condemnation matter brought by the Plaintiff United States of America (the "Government"). The Government has placed a permanent, restrictive easement on 269.22 acres of the Defendants' (the "Landowners") property located in northern Beaufort County, South Carolina (the "Encumbered Property"). The purpose of the easement is to prohibit any development in the flight path of jets using the U.S. Marine Corps Air Station in Beaufort (the "MCAS"). The sole issue in this case is the appropriate amount of "just compensation" owed to the Landowners for the taking of their property by the Government.

         The Government filed its Complaint in Condemnation on July 15, 2016 in the United States District Court for the District of South Carolina, and, on July 22, 2016, it deposited $1, 091, 000 with the Court as estimated just compensation for the taking.[1] Dkt. Nos. 1 & 7. The Landowners filed an Answer on September 19, 2016, disputing this amount. Dkt. No. 14. The Landowners contend that the Encumbered Property has been devalued by $8, 076, 600 and that the unencumbered property has been devalued by at least $1, 603, 980, thereby entitling them to just compensation of $9, 680, 580.

         By order entered on February 8, 2018, United States District Judge Richard M. Gergel appointed a three-person commission to determine compensation pursuant to Rule 71.1(h)(2) of the Federal Rules of Civil Procedure (the "Commission"). Dkt. Nos. 87 & 93. Following pre-trial briefing from the parties, this matter was tried before the Commission on August 14 and 15, 2018. The Landowners elicited testimony from Harold Trask, Jr., John "Donald" Trask, and James Trask (the "Landowner Witnesses"), three owners of the Property; Thomas Harnett, an appraisal expert; and Gregory Ness, an expert in solar development. The Government called Keith Batson, an expert offered for the sole purpose of rebutting Mr. Hartnett's appraisal; Cassandra Norris, a supervisory realty specialist and real estate contracting officer for the United States Navy; Lieutenant Colonel Philip Williams, the former director of operations at the MCAS; Kimberly Statler, the former executive director of the Lowcountry Economic Alliance, via video testimony; and Haywood Newkirk, an appraisal expert.

         After consideration of the testimony, the exhibits offered in this case, and the arguments of counsel for both parties, the Commission makes the following Findings of Fact and Conclusions of Law, and Final Determination and Recommendation of Just Compensation.

         II. FINDINGS OF FACT

         The Property Pre-Taking

         The subject property is located just outside of downtown Beaufort, and consists of 536.55 acres (the "Property"). Tr. at 29:8-12; 126:14-16, 482:18; Landowners' Ex. 14 at 11, 30; Government's Ex. 1 at 96. Due to its size and proximity to downtown Beaufort, and its undeveloped state, all appraisal experts agree that it is a unique property. Tr. at 92:8-13, 534:10-14. Harold E. Trask, Sr. purchased the Property in 1955[2]and the Landowners inherited the Property from his estate. Tr. at 26:24-27:1, 30:7; Landowners' Ex. 1 & 2. The family has owned the Property in fee simple since 1955/ Tr. at 26:15-27:14.

         The Property is undeveloped land with excellent road access and visibility and, unusual for the South Carolina Lowcountry, few wetlands. Tr. at 97:13-16, 120:10-15, 482:15-19. The Property is located on, and has significant road frontage to, Parker Drive, which is a newly paved two-lane road off of Highway US-21. Tr. at 35:20-21, 36:16-37:3, 99:7-18, 482:12-16. It is located twenty miles or less from Interstate-95 and is situated between two major cities- Charleston and Savannah-both of which have large shipping ports and are home to major aerospace manufacturing companies. Tr. at 120:10-15, 121:13-16. The Property has access to all municipal utilities, including water, sewer and gas, and is bisected by power lines running from an SCE&G sub-station located directly across Parker Drive from the Property. Tr. at 40:9-22.

         The Property consists of two parcels totaling 536.55 acres. Tr. at 29:8-12. Landowners' Ex. 14 at 11. The first parcel is zoned S-l industrial (the "Industrial Parcel") and, at 446.33 acres, is one of the largest industrially-zoned tracts of land in Beaufort County. Tr. at 29:8-12, 92:9-13, 485:21-486:1, 534:10-14; Statler Dep. at 90:21-91:2. The Government's permanent restrictive easement covers 179 acres of the 446.33 acres of the Industrial Parcel. Landowners' Ex. 4 at Schedule C. The second parcel totals 90.22 acres and is zoned T2R residential (the "Residential Parcel").[3] Tr. at 486:5-11. The Government's permanent restrictive easement covers all 90.22 acres of the Residential Parcel. Landowners' Ex. 4 at Schedule C. The Industrial Parcel's S-l zoning classification permits a multitude of uses, including light and heavy manufacturing, while the Residential Parcel's T2R zoning classification primarily permits residential home sites with densities of one house per every three acres. It also allows for farming uses. Tr. at 485:25-486:4, 486:20-21. The Property sits within the MCAS's Airport Overlay (the "Overlay"), which is an additional county zoning classification that applies to all properties near the MCAS that underlie certain noise zones and all properties located in an accidental potential zone.[4] Tr. at 487:7-10. Lieutenant Colonel Philip Williams, a witness for the Government, testified regarding the jets' flight patterns, which have been the same for many decades and which go over aportion of the Property. Tr. at 465:18-459:8.

         Across the street from the Property, Parker Drive is lined with industrial properties and businesses, the majority of which are operational and several of which contain newly constructed or re-furbished buildings. Tr. at 37:4-39:25, 40:24-41:25. There are also several residential areas and government buildings surrounding the Property. Tr. at 42:6-18. The Beaufort Commerce Park (the "Commerce Park") sits behind the Property and is connected to Parker Drive by an access road. Tr. at 41:1-2.

         Historically, the Property has been used for farming, timber harvesting, surface mining, and recreational hunting. Tr. at 30:7-16, 34:21-23, 201:5-17, 283:7-11. The Landowners have held on to the Property over the years because of its potential for future industrial and residential development. Tr. at 33:1-4. There is limited mining potential on the Property and, in 2015, the Landowners sold one acre of dirt from the Property for approximately $34, 000. Tr. at 34:21-23, 283:12-284:12, 306:4-11. No. evidence was presented to suggest that the mining value would be any higher than fill dirt. Other viable uses of the Property also existed prior to the taking, such as its use for possible solar development. Tr. at 33:10-17; 34:6-10, 186:23-187:23. Prior to and at the time of the taking, the Landowners were undergoing negotiations with Southern Current, a solar developer, for the placement of a large, utility-scale solar development on the Property. Tr. at 187:3-7. The Landowners have also received interest from other solar developers in building a solar project on the Property. Tr. at 187:7-11. The Property is uniquely well-suited for solar development because it consists of large, contiguous tracts, which allows for flexibility and maneuverability in the layout, and is next to a substation that has little congestion on it. Tr. at 40:9-14, 222:13-20. With upgrades, the Property could have supported a large utility-scale solar project utilizing a high-capacity transmission connection. Tr. at 221:3-15, 235:15-239:11. The interim use of the Encumbered Property for solar development would have produced a substantial revenue stream to the Landowners and allowed them the flexibility to hold the Property until such time as market conditions ripened or to sell the Property subject to the solar leases. Tr. at 188:3-4, 188:9-12, 306:17-25.

         The Easement

         It is undisputed that the easement is extremely restrictive and will encumber the land in perpetuity, even if the MCAS were to close at some point in the future. Tr. at 107:17-20, 110:1, 388:7-9, 428:8-10, 532:19-22. Under the terms of the easement, the Government has the absolute discretion to forbid, in perpetuity, any activity or use of the Encumbered Property that it deems to be inconsistent with the easement's purposes, including: (1) "limit[ing] the use and development of [the] [Encumbered Property]"; (2) "prohibit[ing] residential development" of the [Encumbered Property]; (3) allowing "low and frequent flights" over the [Encumbered Property]; and (4) "preventing] any improvement, development or use of the [Encumbered Property] that would otherwise be incompatible with the military mission of [the MCAS] Beaufort." Tr. at 428:2-20, 434:18-23; Landowners' Ex. 4 at Schedule E. Although the easement contains a list of restricted uses of the Encumbered Property, it further states that the list in no way limits the "generality" of the easement's restrictions or the Government's discretion to deny any use of the Encumbered Property as inconsistent with the easement's purposes. Landowners' Ex. 4 at Schedule E.

         The easement expressly forbids or restricts the following activities and uses:

(1) any activity, development, or use that would interfere, limit, or otherwise be incompatible with "military air operations and the mission of [the MCAS]";
(2) human habitation, including temporary accommodations such as trailers, RVs, and tents;
(3) the construction or installation of any structure, building, antenna, tower, wire, or other man-made obstruction, except as necessary to an allowed use of the Encumbered Property, but subject to the Government's approval and authority to deny such use or activity;
(4) any use of the Encumbered Property which would "unnecessarily" attract birds or waterfowl, including growing vegetation or conducting activities attractive to flocks of birds or waterfowl;
(5) the construction, installation, alteration or growing of any structure, building, antenna, tower, wire, tree or other obstruction of any kind that is taller than 120 feet;
(6) the location of any structure, except fencing, within 50 feet of the property line abutting [the MCAS];[5]
(7) any direct or indirect lighting emitted above the horizontal plane;
(8) subdivision of the Encumbered Property;
(9) activities of any type that produce smoke, glare, or any visual hazard, except that certain controlled burns are permitted, but subject to notice requirements and the Government's authority to deny such activity; and
(10) recreational activities, including but not limited to hunting, that are for-profit, that require surface alteration or other development of the land, or that "encourage the assemblage of groups larger than ten (10) persons."

Landowners' Ex. 4 at Schedule E.

         The easement expressly permits the following uses subject to the notice requirements[6] contained in the easement and the Government's approval authority:

(1) agricultural uses of the Encumbered Property, provided however that crops or vegetation attractive to birds or waterfowl are prohibited, as are trees that are taller than 120 feet;
(2) feeding and housing a small number of farm animals;
(3) exploitation of the Encumbered Property's natural resources, provided however that trees that are taller than 120 feet are prohibited;[7]
(4) wildlife management;
(5) "naturally occurring water features";
(6) "undeveloped or raw land";
(7) the establishment of retention or detention ponds or impoundments to ameliorate storm water runoff, provided however that such impoundments do not attract a concentration of birds; and
(8) such other uses as may be approved and authorized in writing by the sic ____(presumably the words United States were inadvertently omitted in the easement) provided such uses are not inconsistent with the Purposes of this Easement.

Landowners' Ex. 4 at Schedule E.

         Under the terms of the easement, the Landowners retain all responsibilities and must bear all costs and liabilities "of any kind related to the ownership and maintenance of the [Encumbered Property]." Landowners' Ex. 4 at Schedule E. In other words, the Landowners must pay taxes on the Encumbered Property, manage the Encumbered Property, maintain insurance on the Encumbered Property, protect the property, and ensure compliance with the terms ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.