Board of County Com'rs of Tooele County v. Ferrebee, s. 900373

CourtSupreme Court of Utah
Citation844 P.2d 308
Docket Number900398,Nos. 900373,s. 900373
PartiesBOARD OF COUNTY COMMISSIONERS OF TOOELE COUNTY, Plaintiff and Appellant, v. Joseph Wiley FERREBEE, Trustee of the Ferrebee 1976 Family Trust, Defendant and Appellee. BOARD OF COUNTY COMMISSIONERS OF TOOELE COUNTY, Plaintiff and Appellee, v. Joseph Wiley FERREBEE, Trustee of the Ferrebee 1976 Family Trust, Defendant and Appellant.
Decision Date11 December 1992

DURHAM, Justice:

The Board of County Commissioners of Tooele County ("the County") appeals from an order awarding $74,000 to Joseph Ferrebee in an action to condemn 43.66 acres of his property for use in conjunction with the Tooele County Airport. Ferrebee cross-appeals, challenging the amount of the award and the trial court's refusal to award attorney and appraisal fees. 1 We affirm in part and reverse in part.

In this appeal, we consider whether the trial court properly included an enhancement in value based on proximity to the airport and properly refused to award attorney and appraisal fees. These issues involve questions of law, which we review for correctness. Avila v. Winn, 794 P.2d 20, 22 (Utah 1990).

In the 1970s, Tooele County developed a plan to build a county airport. The original airport layout plan designated 68 acres of Ferrebee's 80-acre parcel for acquisition. 2 The County acquired 37 acres in a condemnation action commenced in 1975. Shortly after the action concluded in 1979, the County contacted Ferrebee about acquiring the remaining acreage. Ferrebee declined to sell the property but indicated an interest in donating it to the County. Negotiations concerning the appropriate value ensued, leading the County to obtain an appraisal from Jerry Webber. In 1981, Webber submitted his appraisal, valuing the land at $1,750 per acre. Ferrebee rejected the appraisal, and another was subsequently prepared by William Alsop. Ferrebee decided against donating the property.

Because of budgetary constraints, the County did not acquire the remaining 43 acres immediately after the first action. In September 1983, the County applied for a federal grant and subsequently ordered a current appraisal as required by FAA regulations. The appraisal, submitted by Webber in 1985, valued the property at $275 per acre. A review appraisal prepared by George Fujii criticized Webber's valuation, although Fujii subsequently submitted his own appraisal of $240 per acre. The appraisers attributed the reduction in valuation to a significant drop in property values in Tooele County, among other things.

In 1986, the County offered to purchase the property for $275 per acre. Ferrebee refused, prompting the County to increase its offer by $200 per acre as an incentive to avoid litigation. Despite this increase, Ferrebee again refused, and the County filed a second condemnation action in May 1986 to obtain the remaining 43 acres. Ferrebee commissioned three appraisals which assessed the final value at $1,695 per acre, $1,946 per acre, and $2,306 per acre. At trial, the court accepted the $1,695 appraisal (the "Cook appraisal") as the best estimate of fair market value. The Cook appraisal assigned a base value of $1,500 per acre for 30 acres and $500 per acre for the remaining acres, for a total of approximately $52,000.

The Cook appraisal then deducted $19,500 as the cost of obtaining access to the 43.66 acres rendered landlocked by the prior condemnation action, but the trial court deducted only $19,240 based upon a written option agreement between Ferrebee and a neighbor for a right-of-way at a cost of $5,000 per acre. After deducting the cost of access, the trial court added a bonus of 125 percent, or $40,950, as an enhancement due to proximity to the airport. Ferrebee was awarded $74,000 as the total fair market value, including the enhancement and the deduction for access, plus costs, interest, and a refund of taxes paid on the property. The trial court denied his claims for attorney fees and appraisal costs, based on its ruling that the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. §§ 4601 to 4655, and the Utah Relocation Assistance Act, Utah Code Ann. §§ 57-12-1 to -13, did not apply.

On appeal, the County asserts that the trial court erred in accepting the Cook appraisal because it included an enhancement. Ferrebee maintains that the Cook appraisal and enhancement were proper and claims on cross-appeal that the trial court improperly discounted the value of his land because it is landlocked and incorrectly based the amount of the deduction on an unexercised option agreement. Furthermore, Ferrebee contends that he is entitled to attorney fees and appraisal costs, relying in part on state and federal relocation assistance acts which the trial court found inapplicable to this case.

We conclude that the trial court erred in awarding an enhancement of 125 percent based upon proximity to the airport. However, we affirm the trial court's reliance upon the remaining portions of the Cook appraisal, including the $19,240 deduction for access. We also hold that Ferrebee is not entitled to appraisal costs or attorney fees.


The County challenges the trial court's finding that the Cook appraisal represented the best estimate of the property's fair market value. We will reverse that factual determination only if we find it to be clearly erroneous. Grayson Roper Ltd. v. Finlinson, 782 P.2d 467, 470 (Utah 1989). Under that standard, we do not find the trial court's acceptance of the Cook valuation, setting a base property value at $52,000, to be clearly erroneous.

However, the Cook appraisal includes an airport enhancement that requires a proper legal basis. In other words, Cook added a premium of 125 percent, or $40,950, which he considered a reasonable estimate of the increase in property value attributable to the nearby airport. The trial court's use of the enhancement factor raises an issue of law; accordingly, we review that portion of the appraisal for correctness, giving no particular This court has held that any increase or decrease in property value due to the project for which property is being condemned shall not be considered in assessing fair market value. Redevelopment Agency v. Grutter, 734 P.2d 434 (Utah 1986). We noted in Grutter that this rule comports with legislative intent and brings Utah in line with other jurisdictions. Id. at 437.

deference to the trial court. Avila, 794 P.2d at 22.

The relevant inquiry, then, is whether the 43.66 acres at issue in this proceeding are part of the same project as the 37 acres condemned in the 1975 action. If so, then Grutter precludes consideration of any enhanced value resulting from the proximity of the airport. However, if the land currently at issue was not within the original scope of the project but is merely adjacent property, then an enhancement would be appropriate. United States v. Miller, 317 U.S. 369, 376-77, 63 S.Ct. 276, 281, 87 L.Ed. 336 (1943). The "scope of the project" test requires only a showing that "during the course of the planning or original construction it became evident that land so situated would probably be needed for the public use." United States v. Reynolds, 397 U.S. 14, 21, 90 S.Ct. 803, 807-08, 25 L.Ed.2d 12 (1970). Reynolds does not require that the property be specifically identified in the original plans, as it was in this case. Id.

Ferrebee argues that Grutter is inapplicable to the instant proceeding and that Miller mandates an enhancement award. Specifically, he contends that because the County did not initiate the second condemnation action until 1986, eleven years after the first proceeding commenced, the County therefore engaged in two separate projects, with the subject property being needed for the second project. Therefore, the argument continues, any increase in value would be attributable to the completion of the first project and the intervening years, rather than to the current airport project. If we accept that reasoning, then an enhancement would be appropriate.

We are not persuaded, however, that an enhancement is warranted in this case. The trial court found that the original airport layout plan included 68 acres of Ferrebee's property and that two separate condemnation actions occurred. Although the record supports these factual findings, they do not decide the "scope of the project" question. We therefore undertake a closer review of the record.

As previously mentioned, the trial court found that as of the early 1970s, the County intended to acquire 68 acres of Ferrebee's property to build the Tooele County Airport. The County has alleged that it obtained only 37 acres in the 1975 condemnation action due to fiscal restraints. Nothing in the record refutes that assertion. The first condemnation proceeding continued until 1979, and at its conclusion, the County immediately approached Ferrebee about acquiring the remaining acreage. Negotiations concerning Ferrebee's offer to donate the property to the County for a charitable tax deduction occurred in 1981, at which time several appraisals were prepared. Ferrebee testified that in June 1982 and again in October 1982, he received letters from the County indicating a continuing interest in the property. In addition, the County Director of Development Services testified that he offered Ferrebee $1,750 an acre minus the severance award from the prior proceeding, but Ferrebee refused his offer. Two years later, in December 1984, Ferrebee's attorney received a letter reiterating the County's intent to acquire his property. Finally, the County made several offers in early 1986 predating the filing of the condemnation action.

The foregoing history compels the conclusion that the County has engaged in one continuous project. While the County deserves no praise for speed, we...

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