       In the United States Court of Federal Claims
                                     No. 15-488L
                             (Filed September 30, 2016)
                             NOT FOR PUBLICATION

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TECHNICAL COLLEGE OF THE *
LOW COUNTRY,             *
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             Plaintiff,  *
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         v.              *
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THE UNITED STATES,       *
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             Defendant.  *
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                                       ORDER

       In this rails-to-trails takings case, the government has filed a motion in
limine, seeking to exclude certain evidence relating to the value of the property
affected by the conversion of an easement to one for trail use. Def.’s Mot. In Lim.
(Def.’s Mot.) at 1–3. When plaintiff purchased the property in 1968, the deed
conveyed the land in fee simple determinable, with a possibility of reverter. See
Purvis v. McElveen, 106 S.E.2d 913, 916 (S.C. 1959). The conveyance was subject to
the condition that it:

       shall be effective only so long as said premises are used for educational
       purposes . . . and whenever said premises hereby conveyed shall cease
       to be used for such educational purposes . . . this deed and the estate
       conveyed hereby to the Grantee shall cease, determine and be void and
       said premises . . . shall automatically revert to the Grantor . . . .

Def.’s Mot., Ex. 1 at 2.

       Because of this deed restriction, the government argues that no use of the
property for purposes other than educational should be considered in assessing its
value, and that testimony concerning non-educational uses should be excluded.
Def.’s Mot. at 2–3. In its motion, the government cited no authority for this
proposition, see id. at 1–3, and its reply merely quotes the general proposition that a
property owner “‘must be made whole but is not entitled to more,’” Def.’s Reply in
Supp. Mot. (Def.’s Reply) at 1 (quoting United States v. 564.54 Acres of Land, 441
U.S. 506, 516 (1979) (internal quotation omitted)).

       Plaintiff opposes the motion, arguing that the determination of a parcel’s
highest and best use, according to the Uniform Appraisal Standards for Federal
Land Acquisitions (Yellow Book), is not impacted by private deed restrictions. Pl.’s
Opp’n to Def.’s Mot. at 1–2. 4–7. During the pre-trial conference, plaintiff pointed
out the differences between the Yellow Book’s treatment of zoning and other
regulations and its treatment of deed restrictions. Zoning and other regulations are
explicitly recognized as “hav[ing] an impact on the highest and best use and value of
the property,” and accordingly the probability of rezoning and of receiving necessary
government approvals must be considered in making those determinations.
Interagency Land Acquisition Conference, Uniform Appraisal Standards for
Federal Land Acquisitions 16–17 (5th ed. 2000). In contrast, appraisers are merely
to “also discuss the impact of any private restrictions on the property, such as deed
and/or plat restrictions.” Id. at 17.

        The government maintains that to assess the value of plaintiff’s land based
on a use --- such as residential --- which, if made, would result in a reversion of the
land to the grantor, would confer a windfall on plaintiff. See Def.’s Mot. at 3; Def.’s
Reply at 2. But during the pre-trial conference, the government took the position
that the grantor would not have standing to seek a portion of the compensation due
to the conversion, and thus its approach would generate a windfall for itself. The
government also conceded it was aware of no precedents supporting its position
regarding deed restrictions.

      Our court has, on at least one occasion, considered this issue. In Childers v.
United States, a similar deed restriction was found to not affect property valuation,
based on the approach to valuation in the Yellow Book as well as trial testimony.
116 Fed. Cl. 486, 505 (2013). In light of that precedent, and noting that the Yellow
Book does not forbid the consideration of uses that are contrary to existing
regulations, the Court is not persuaded that a private deed restriction on the use of
property renders evidence based on the value of other uses irrelevant to the
valuation of the property. Accordingly, the government’s motion is DENIED.

IT IS SO ORDERED.


                                        s/ Victor J. Wolski
                                        VICTOR J. WOLSKI
                                        Judge



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