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Irrespective of their position at trial, we must consider the
reasonableness of petitioners’ position based upon their position
at the time the return was filed. Petroff’s appraisal report
does contain the premise that the floodplain could have been
developed in the absence of the easement, and it was this report
that petitioners relied upon and presented to respondent to
support their contribution.
Although the report does not contain the express statement
that the entire 29 plus acres could have been developed in the
absence of the easement or that the conservation easement was
placed on the floodplain, it can be readily inferred from
Petroff’s report that he assumed these to be facts. Petroff’s
report contains the statement that the “by-right” subdivision
plan allowed 62 lots to be built on the total 29.2722 acres, a
development that we can infer Petroff believed was permitted
under the R-2 classification. The report also contains the
statement that the conservation easement was “donated on a
15.0418 acre portion of the 29.2722 acre” Grist Mill property,
which is the same acreage as the existing floodplain. The report
further notes that this constitutes 51.4 percent of the Grist
Mill property, representing 32 lots. It also refers to the
entire 29.2722 acres of the Grist Mill property before the
easement, the 15.0418 acres of the conservation easement, and
then the “Area of Remainder after Conservation Easement” of
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