Additional Statement of Undisputed Facts Filed in Easement Case

UNITED STATES OF AMERICA,
Plaintiff,
v.
ECOVEST CAPITAL, INC., et al.
Defendants.

IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

CLAUD CLARK III'S STATEMENT OF ADDITIONAL UNDISPUTED MATERIAL FACTS IN RESPONSE TO THE UNITED STATES' STATEMENT OF UNDISPUTED MATERIAL FACTS

In accordance with Federal Rule of Civil Procedure and Local Rule 56.1(B)(2)(b), Claud Clark III, files the below Statement of Undisputed Material Facts. Mr. Clark also joins and incorporates in full the Additional Statement of Undisputed Material Facts filed by the EcoVest Parties.

1. From 2010 through 2018 Mr. Clark, on behalf of EcoVest, performed approximately seventy appraisals of conservation easements to be placed on various properties.

Clark Declaration (Exhibit A) at ¶ 5

2. In conducting these appraisals, Mr. Clark employed the same methodology upheld by the United States Tax Court in Kiva Dunes Conservation, LLC v. Commissioner, 97 T.C.M. (CCH) 1818 (T.C. 2009).

Clark Declaration (Exhibit A) at ¶ 6

3. Mr. Clark employed this methodology in reliance on the Tax Court's Kiva Dunes decision and the Commissioner's acceptance of the decision.

Clark Declaration (Exhibit A) at ¶ 7

4. In performing the appraisals for Ecovest, Mr. Clark was never a shareholder, officer, director, or employee of EcoVest or any associated entity.

Clark Declaration (Exhibit A) at ¶ 8

5. Mr. Clark never participated in the preparation of any document establishing the entities which acquired or donated the conservation easements at issue in this case and never participated in the management of such entities.

Clark Declaration (Exhibit A) at ¶ 9.

6. According to the Appraisal of Real Estate, 14th Edition, the subdivision development method, which is a subset of the discounted cash flow analysis, may be used to estimate raw land value.

Appraisal of Real Estate 14th Edition (Exhibit B) at 548.

7. According to the Appraisal of Real Estate, under the discounted cash flow analysis an appraiser begins by developing detailed spreadsheets. These spreadsheets show itemized incomes, expenses, and cash flows year by year, or sometimes month by month, over the presumed period of ownership or another projection period that the market suggests. The cash flows, including the net resale price, are then discounted at an appropriate rate (or rates) to derive an indication of present value.

Appraisal of Real Estate 14th Edition (Exhibit B) at 529-30.

8. According to the Appraisal of Real Estate, for a proposed development on vacant land, this approach considers “the income and expenses associated with the projections for the hypothetical project over [a] permitting, construction, and absorption period.”

Appraisal of Real Estate 14th Edition (Exhibit B) at 549.

Respectfully submitted this 16th day of March, 2022.

KHAYAT LAW FIRM

Robert C. Khayat, Jr.
Georgia Bar No. 416981
rkhayat@khayatlawfirm.com
Brian D. Spielman
Georgia Bar No. 596026
bspielman@khayatlawfirm.com

KHAYAT LAW FIRM
75 14th Street, N.E.
Suite 2750
Atlanta, GA 30309
Telephone: (404) 978-2750
Facsimile: (404) 978-2901

Counsel for Claud Clark III