United States v. 17.83 Acres of Land

No. 97-1466 (139 F.3d 897) (4th Cir. March 18, 1998)

The court holds that owners of property atop South Mountain in Washington County, Maryland, were not entitled to an increase in the amount awarded them in a condemnation proceeding. The property owners contend that the district court erred in granting the U.S. government's motion in limine seeking to exclude evidence of a telecommunications tower as the highest and best use of the mountain property. The court first holds that the property owners' failed to show that the highest and most profitable use of their property would be as a telecommunications tower site because they failed to demonstrate that such use was either physically or economically feasible. The property owner's proffered the testimony of three experts regarding the potential value the property had as a site for telecommunications towers. None of the proffered evidence showed how much it would cost to convert the property from its current use as a recreational property to one suitable for a telecommunications tower. Without showing the cost of development, the property owner's contention that a telecommunications tower would be profitable is conclusory. Furthermore, without electrical power, which the property lacked, such use is merely speculative and not reasonably probable.

Counsel for Plaintiff
Ronald M. Spritzer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Gorman E. Getty III
Law Offices of Gorman E. Getty III
23 Washington St., Cumberland MD 21502
(301) 777-8032

Before Hamilton, Williams, and Butzner, JJ.

[28 ELR 21132]

Per curiam

Opinion

This is an appeal from a final judgment of condemnation awarding the Appellants Philip and Joanne Physioc $ 77,000. Appellants contend that the district court erred in granting the Government's motion in limine seeking to exclude evidence of a telecommunications tower as the highest and best use of the property. Appellants alleged in the district court that the value of their property as a telecommunications tower site was $ 265,000. Finding no abuse of discretion, we affirm.

The property is a rectangular parcel of land located atop South Mountain in Washington County, Maryland. On the property is a two-story stone and frame cottage. There is no electricity, telephone service, well or sewage system on the site. Access to the property is via a one lane, dirt, public roadway maintained by the Physiocs. To directly access the property one must use a 1,000-foot footpath that passes through property owned by the State of Maryland. Shortly after these proceedings commenced, the Maryland Department of Natural Resources ("MDNR") denied a request by Potomac Edison Company for a right-of-way crossing state property for a power line to provide electricity to the Physioc's property. The MDNR found that the proposed right-of-way would be inconsistent with current plans for the Appalachian Trail corridor and South Mountain State Park.

A district court's refusal to admit evidence in a condemnation proceeding is reviewed for abuse of discretion. See United States v. Lowrie, 246 F.2d 472, 474 (4th Cir. 1957); United States v. Prettyman, 142 F.2d 891, 893 (4th Cir. 1944). The Fifth Amendment provides that no private property shall be taken by the United States without just compensation. The compensation due the property owner may be [sic] depend upon the property's current use or it may depend upon a use that would be the "highest and most profitable use." Olson v. United States, 292 U.S. 246, 255 (1934). Generally, the current use is considered the most profitable use. However, the property owner may show that an alternate use is the highest and most profitable use, if he can show that the "use is 'reasonably probable' and that the probability has a real market value." United States v. 69.1 Acres of Land, 942 F.2d 290, 292 (4th Cir. 1991); see also United States (ex rel. TVA) v. Powelson, 319 U.S. 266, 273 (1943) (property owner has the burden of proving [28 ELR 21133] the value of the subject property). The district court may disallow evidence that is "remote," Lowrie, 246 F.2d at 474, or that would allow for "mere speculation," Olson, 292 U.S. at 257.

The Physiocs proffered the testimony of three experts regarding the potential value the property had as a site for telecommunications towers. The experts opined that the property was in a desirable location, considering its height and its location to Hagarstown [sic] and Frederick. The evidence also showed that there was an increasing demand for tower sites. None of the proffered evidence showed how much it would cost to convert the property from its current use as recreational property to one suitable for a telecommunications tower.

Without showing the cost of development, the Physioc's contention that a telecommunications tower would be profitable is conclusory. Furthermore, without electrical power, such use is merely speculative and not "reasonably probable." Olson, 292 U.S. at 257. Even the Physioc's counsel conceded that the lack of electricity made their proffer problematic, leaving them "in the position of having to suggest that either solar power or some kind of generating equipment would . . . power the site." (J.A. at 396.) One of the Physioc's experts stated, however, that a telecommunications tower could not operate on solar power.

The Physiocs failed to show that the highest and most profitable use of their property would be as a telecommunications tower site because they failed to demonstrate that such use was either physically or economically feasible. Accordingly, we affirm the judgment and order of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid in the decisional process.

AFFIRMED