James D. and Beverly H. Turner - Page 35

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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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