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United States v. 269 Acres

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

April 2, 2019

United States of America, Plaintiff,
v.
269 Acres, More or Less, Located in Beaufort County, State of South Carolina; et al, Defendants.

          ORDER AND OPINION

          RICHARD MARK GERGEL UNITED STATES DISTRICT JUDGE.

         Before the Court is the Final Determination of Just Compensation and Recommendation by the Commission (the "Report"). (Dkt. No. 164.) The United States of America (the "Government") filed Objections to the Report (Dkt. No. 172, No. 176) and the Landowners filed a Motion to Adopt the Report (Dkt. No. 174). On March 25, 2019, the Court heard oral arguments on the Government's Objections.

         For the reasons set forth below, the Court adopts in part and declines to adopt in part the Report as the Order of the Court. The Court finds the full award of just compensation due to the Landowners is $4, 441, 410.00. As explained below, the Court therefore orders that the Government pay the Landowners compensation in the amount of $3, 350, 410.00, in addition to the amount of $1, 091, 000.00 previously paid in to the Court.

         I. Background

         The Government filed this action on July 15, 2016 to impose a permanent restrictive easement over 269.22 acres of land (the "Property") located in Beaufort, South Carolina. (Dkt. No. 1.) The purpose of the easement is to restrict development in the flight path of jets in and out of the adjacent U.S. Marine Corps Air Station ("MCAS"). (Dkt. No. 140-1.) On July 22, 2016, the Government deposited $1, 091, 000.00 with the Court as estimated just compensation. (Dkt. No. 1, No. 7.) The sole issue in dispute is the appropriate amount of just compensation due to the Landowners. Pursuant to Rule 71.1 of the Federal Rules of Civil Procedure, the Court appointed a three-person Commission comprised of Stephen A. Spitz, Jean H. Toal and Alan J. Reyner. The Commission conducted a three-day bench trial in August and December 2018 and issued its final Report on March 14, 2019.

         The Commission heard extensive evidence relevant to "the character, location, or quantity" of the Property. Fed.R.Civ.P. 71.1(h).[1] The Property, which the Landowners' family has owned in fee simple since 1955, consists of two parcels. One parcel is 446.33 acres zoned S-l industrial (the "Industrial Parcel"), of which the restrictive easement covers 179 acres. This industrial zoning permits both light and heavy manufacturing. The second parcel is 90.22 acres zoned T2R residential (the "Residential Parcel"), of which the restrictive easement covers all 90.22 acres. This residential zoning permits the development of one house per three acres and farming use. The Property is undeveloped raw land that consists of unusually few wetlands for the Lowcountry. It is bisected by power lines running from an adjacent SCE&G sub-station and has access to all municipal utilities including water, sewer and gas. The Property is also unusual for its location: it has significant road frontage on Parker Drive, a newly paved two-lane road off Highway US-21; is less than twenty miles from Interstate-95; and sits between Charleston and Savannah, two major port cities, each of which houses an aerospace manufacturing company. The Property also sits within the Marine Corps Air Station ("MCAS") Overlay Zone, which is a Beaufort County ordinance originally enacted in 2000 that limits activities that may interfere with MCAS flight patterns, including any activities that may produce light, smoke, glare, electronic signals or attract waterfowl.

         The restrictive easement significantly limits[2] the Landowners' use of this Property by restricting activity that may lead to physical interference with MCAS flights or may otherwise be "incompatible" with the MCAS "mission." (Dkt. No. 140-1.) Because the Property is currently raw and undeveloped land, the easement necessarily contemplates that the land may be developed. More specifically, the easement forbids:

(1) Any activity, development, or use that would interfere, limit or otherwise be incompatible with "military air operations and the mission of [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 for an allowed use of the encumbered Property, but subject to the Government's approval and authority to deny such an activity;
(4) any use of the encumbered Property that 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 that is taller than 120 feet;
(6) the location of any structure, except fencing, within fifty feet of the Property line abutting MCAS;
(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 and that are for-profit, require surface alteration or other development of the land, or that "encourage the assemblage of groups larger than ten (10) persons."

(Dkt. No. 164 at 6-7; No. 140-1.)

         The easement expressly permits the following uses subject to the Government's approval given in the sole discretion of Navy realty specialist Cassandra Norris:

(1) Agricultural uses provided, however, that crops or vegetation attractive to birds or waterfowl are prohibited, as are ...

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