Opinion of the Court by
In October 2005, the Kenton County Fiscal Court, on behalf of its Airport Board, condemned real property owned by Cordelia Bastón in Boone County. The condemnation was a small piece in the Airport Board’s plan to construct a new north/south runway for the Cincinnati/Northern Kentucky International Airport. Following a jury trial and in accord with the jury’s verdict, the Boone Circuit Court awarded Bastón compensation damages of $670,000.00. On appeal, a divided panel of the Court of Appeals reversed that award as excessive and remanded for a new trial. In the view of the Court of Appeals’ majority, Baston’s counsel violated KRS 416.660 and tainted the jury by attempting to show that knowledge of the
RELEVANT FACTS
The property in question is an approximately eight-acre tract south of Kentucky Highway 20 along what was Hill Road in the Hebron area of Boone County. Mrs. Bastón testified that she and her husband purchased the property, which had been improved with a house, in 1962. They lived there throughout their marriage, using the property not only as their family residence but also to raise a small number of cattle and hogs, some corn, and a large garden. Mr. Bastón died in 1991. Mrs. Bastón testified that through the years the effects of the airport, which lies to the south, gradually became more pronounced. By the mid-1990s, noise, in particular, frequently rendered patio conversations impossible. In 1995, as part of a noise mitigation project, the Airport Board offered to buy the property, but Mrs. Bastón declined. In 1997, the Airport Board notified her of its intent to acquire the property as part of its new runway project. That project was approved in 2001, and Mrs. Ba-stón surrendered the property in 2003, although for trial purposes the date of taking was fixed as of the commencement of trial on October 24, 2005.
As of the taking, the property continued to be zoned as residential, but the central issue at the trial was the continuing appropriateness of residential use given the effects of the airport and the conversion of much of the area’s residential property to industrial ■ or commercial. The Airport Board presented testimony to the effect that notwithstanding the Bastón property’s being subject to substantial airport noise and being virtually surrounded by property long since converted from residential to industrial use, and notwithstanding the Boone County Planning Commission’s recommendation that the area surrounding the airport be dedicated to industrial uses, the property was not suitable for industrial development. The Airport Board contended that the property’s zoning would not be amended to allow for such development because Hill Road, the county road serving the property, was too narrow for industrial traffic and at its junction with Hossman Road (which provides access to Highway 20) would require tractor-trailers to negotiate an extremely sharp turn. Airport Board experts testified that tractor-trailers could not negotiate the hairpin turn within the existing right-of-way, and another expert testified that the Boone County zoning board was not likely to grant a zoning change unless the road could be widened and extensively improved. Deeming the costs of such improvements prohibitive, the Airport Board’s appraiser concluded that the highest and best use of the Bastón property would be as a residential subdivision. He therefore sought comparison with other properties that had been purchased by residential developers and concluded that the fair market value of the Bastón property was about $45,000.00 per acre, or roughly $350.000.00 total. On cross-examination, he conceded that industrial property in the area commanded a higher price— in his estimate in the $60,000.00 to $90,000.00 per acre range — but he reiterated that in his opinion the Bastón property was not suitable for such use.
Bastón presented equally qualified experts who opined that Hill Road was not an insurmountable obstacle to industrial development. Her engineering expert tes
The jury, as noted, returned a verdict valuing the property at $670,000.00, or about $85,000.00 per acre. Clearly, therefore, it accepted Baston’s evidence that her property could be developed and used industrially despite the limitations of Hill Road. The Court of Appeals’ majority ruled that such a finding was contrary “to the clear weight of the evidence,” and that it indicated that the jury had been tainted by Baston’s counsel’s improper references to the effect of the Airport Board’s condemnations on the area surrounding the airport and, in particular, to the fact that the announcement of the runway project had “killed development” on the properties slated to be condemned. The Court of Appeals agreed with the Airport Board that such references violated KRS 416.660 and had the effect of rousing the jury’s passion and prejudice against “the airport as a large wealthy entity running roughshod over a poor widowed woman.” Convinced that the Court of Appeals both overstepped its role by presuming to reweigh the evidence in the jury’s stead and misconstrued KRS 416.660, we reverse.
ANALYSIS
Sections 13 and 242 of the Kentucky Constitution and the Fifth Amendment of the United States Constitution permit the taking of private property for public use, but not “without just compensation.” Just compensation means a compensation fair to the public in need of the property and paying for it as well as fair to the individual obliged to surrender it.
United States v. 320.0 Acres of Land,
I. Sufficient Evidence Supported the Jury’s Implicit Best-Use Finding
The Airport Board’s main argument, at trial and on appeal, is that Bastón failed to prove that her property was physically adaptable for industrial uses. Using computer-generated diagrams, the Airport Board’s architectural and engineering experts purported to show that tractor-trailers could not, within the existing right-of-way, negotiate the hairpin turn between Hill Road and Hossman Road. Because, according to the Airport Board, enlarging the road and fixing the curve would be exorbitantly expensive, the Bastón property could not be deemed adaptable to industrial use. Baston’s engineering expert disagreed. He testified that he was familiar with the sort of software the Airport Board’s engineer had employed and that it tended to depict what would be the most desirable conditions in an ideal world, but that it did not exhaust what could be done in the real world. He testified that he had inspected Hill Road and its curve and that based on his forty years of experience helping to develop industrial sites and his personal knowledge of several Boone County industrial sites served by similarly narrow roads with sharp turns (which he named and described), he believed the Hill Road curve could be ameliorated to permit tractor-trailer use. This testimony was consistent with that of Mrs. Bastón, who testified that school buses and all manner of trucks, including tractor-trailers, had navigated the Hill Road curve. Characterizing the engineer’s testimony as “bald” and “wholly unsupported,” the Court of Appeals’ majority agreed with the Airport Board that Bastón had failed to show that the property was capable of industrial use. We disagree.
Mrs. Baston’s engineer was duly qualified by training and long experience to form an opinion about the amenability of Hill Road and its sharp turn to tractor-trailer traffic. His testimony was supported by the several real-world, Boone County examples he cited where similarly narrow roads with sharp turns had not foreclosed industrial development. His testimony was also supported by that of Mrs. Bastón, who indicated, contrary to the computer model representations of the Airport Board’s experts, that she was aware from living in the area for over forty years that it was possible for trucks to negotiate the Hill Road turn. Under KRE 702, the admissibility of expert testimony is a matter entrusted to the discretion of the trial court.
The Goodyear Tire and Rubber Company v. Thompson,
Once it is properly admitted, “[e]valuation of the weight which should be given to expert testimony is the exclusive province of the jury.”
Ellison v. R & B Contracting, Inc.,
II. The Trial Was Not Tainted By Improper Argument
The Court of Appeals also concluded that the jury was likely to have weighed the evidence as it did because it had been tainted by Baston’s counsel’s references to and questions concerning the effect of the runway project on development in the condemned area and more generally by references to the airport’s assets and resources. The Court of Appeals believed the references to the effect of the project violated KRS 416.660 and, furthermore, the references to the airport’s assets impermissibly invited the jury to view the case as pitting a large, callous public entity against a lone, elderly woman. We consider the alleged statutory violation first.
A. KRS 416.660 Requires That the Market Effect of the Government Project be Corrected in Arriving at Fair Market Value
As noted above, the general rule is that the condemnor must pay the fair market value of the property at the time of the taking. An impending condemnation, however, can distort the market by inflating or depressing land values.
United States v. Reynolds,
Kentucky has codified this rule in KRS 416.660, which provides in pertinent part that “[a]ny change in the fair market value prior to the date of condemnation which the condemnor or condemnee establishes was substantially due to the general knowledge of the imminence of condemnation or the construction of the project shall be disregarded in determining fair market
Precisely how this correction for the influence of the project is to be made is a matter that must be determined on a case-by-case basis depending, among other things, on the particular project involved and whether its effect is depreciatory or inflationary. Although generally the property is to be valued at the time of taking, to eliminate the distorting effect of the project courts have sometimes admitted evidence of value at the time the project was first announced.
In re the City of New York,
KRS 416.660 does not, therefore, as the Airport Board maintains and as the Court of Appeals held, bar all evidence of the project’s effect. Where condemnation blight or project influence is alleged, the better practice is to address the evidentiary ramifications prior to trial in a KRE 104 hearing. In this case, the Airport Board raised the issue prior to trial, but took the position that the statute rendered the project’s influence irrelevant and evidence about it therefore inadmissible. As just discussed, however, where shown to exist, the project’s influence on the market value of affected property is highly relevant and evidence correcting for that influence must be allowed. The record contains no written ruling on the Airport Board’s motion and it appears that the trial court opted to deal with the matter as the evidence was offered at trial.
Because the issue was not actually addressed prior to trial, evidence of project influence came up somewhat haphazardly during trial, but not so as to constitute reversible error. Bastón introduced evidence that in 1997 the Airport Board notified her and other landowners in the path of the new runway that it intended to condemn their land. Not long thereafter the runway project became public knowledge. Bastón also introduced some evidence and sought to introduce other evidence that following these notices no development took place on the properties earmarked for condemnation, because the condemnation “had killed development in the area.” The relevance of this evidence was two-fold: it provided a reason other than the property’s alleged unsuitability for the fact that Baston’s property had not been industrially developed, and it helped explain why her appraiser had not been able to refer to comparable sales in the immediate vicinity of her property but had had to look for comparable sales at other points along the airport’s perimeter. It may well be that a proper pre-trial motion could have rendered these points
In the same vein, the Airport Board asserts that Bastón violated KRS 416.660 when she elicited testimony from the airport’s Deputy Director of Aviation that the Airport Board had prevented, by way of condemnation, the development of an Au Chocolat franchise on property near Ba-ston’s when it learned that the proposed development would interfere with roadways the airport "wished to preserve. Counsel then asked the Airport’s Deputy Director if Au Chocolat had not purchased property at another point along the perimeter for $82,500.00 per acre. There was no objection to this question, and the witness answered that Au Chocolat had relocated, but that he did not know any of the details of the transaction. When counsel later asked whether development of the Au Chocolat franchise on the parcel near Ba-stón would not have made neighboring property more valuable, the Airport Board objected and its objection was sustained.
Notwithstanding its successful objection, the Airport Board insists that reference to a phantom comparable sale violated KRS 416.660 and necessitated a mistrial. Although it is not clear from the testimony that the Au Chocolat condemnation was part of the runway project, even if it was, evidence that the project prevented potentially comparable sales near Baston’s property was relevant, as noted above, to explain why Bastón had to look at property farther away for such sales. Whether or not Baston’s counsel should have referred to the price of a sale that had not been introduced into evidence and shown to be comparable, the Airport Board did not timely object to that reference, and the reference does not amount to a palpable error. 1 The $82,500.00 per acre figure was well within the range the Airport Board’s own expert assigned to the value of industrial property in the area, and in light of the plethora of evidence concerning industrial development surrounding the airport, reference to this particular development cannot be said to have swayed the jury’s best-use determination or otherwise to have resulted in a manifest injustice. CR 61.02.
In sum, KRS 416.660 does not, as the Airport Board argues and as the Court of Appeals held, require that increases or decreases in market value caused by the announcement of a government project be disregarded in the sense of being completely ignored. It requires, rather, that the announcement’s effect on the market be disregarded in the sense of being corrected for, of being removed, in determining the fair market value of the property. The correction may involve excluding evidence of tainted values or, as in this case, permitting evidence tending to show what the use and value of the condemned property would have been absent market awareness of the project. Although it could, perhaps, have been limited by an appropriate pretrial motion,- the evidence admitted and referred to at trial tending to show that the announcement of the runway project prevented industrial development in the area earmarked for condemnation did not violate the statute and does not entitle the Airport Board to relief.
Finally, the Airport Board insists that Baston’s counsel improperly sought to portray the Airport Board as dealing with Bastón in bad faith and improperly appealed to the jury’s prejudice against large institutions. Relying on cases such as
Risen v. Pierce,
Counsel’s remarks were improper aside from the statute, the Airport Board asserts, because they insinuated that the airport announced the project as early as it did, in 1997, so as to depress the value of the property it planned eventually to condemn. This argument is unavailing, however, because Baston’s counsel did not argue that the value of the condemned properties had been depressed. He noted, rather, that their industrial development had been stifled, a result clearly stemming not from any bad faith on the airport’s part but from the plain economic fact that rarely will property slated for condemnation be developed.
Relying on cases such as
Clement Brothers Company, Inc. v. Everett,
The Airport Board is correct that flagrantly improper argument can justify overturning a verdict that otherwise appears excessive.
Smith v. McMillan,
Here, Bastón was permitted to question the Deputy Director about the airport’s concerns regarding development in the likely path of airport expansion. The Deputy Director explained that the airport generally preferred industrial development around its perimeter because residential development was more expensive to mitigate. Accordingly, he testified, the Airport Board had on a number of occasions intervened, either in the market or by condemnation, to prevent a planned residential development. This testimony could be thought to lend credence to Ba-ston’s proof that her property was better suited for industrial purposes than residential, and also to undermine the Airport Board’s contrary contention as contrived.
To bolster her claim that residential development was not appropriate around the airport, Bastón attempted to show that the airport was a source of other forms of pollution besides noise pollution, but those questions were disallowed for want of expert testimony. Bastón also wished to argue that because the airport itself owned so much of the surrounding land, the price of the remaining land had been bid up, but that evidence, too, was disallowed, in part no doubt to prevent any undue emphasis on the parties’ disparate financial circumstances. These questions and the arguments they were meant to support, although not admitted, are simply not comparable to the arguments deemed intolerable in the cases cited above.
The Airport Board, first of all, is not a foreign corporation against whom hometown bias could be incited. Counsel did not characterize the airport as grasping or wolfish, did not refer to the mansions of airport executives and did not refer to airport counsel as cold-blooded and mercenary. While Baston’s counsel’s remarks were pointed they were not gratuitous or inflammatory. Counsel did not, in short, invite the jury to substitute a purely emotional response to the parties, in lieu of a reasoned consideration of the evidence under the court’s instructions.
Counsel’s questioning of the Airport Board’s “good faith” in his opening statement, although the most questionable of the remarks about which the Airport Board complains, was reasonably calculated to convey not that the airport had engaged in any wrong doing but rather that in pursuing its own interest it had offered Bastón less for her property than a disinterested person might have done. It is not improper for counsel to ask the jury to assess the other side’s case critically.
Finally, it was not improper for counsel to refer in closing to Baston’s “measure of justice.” Bastón was, after all, entitled to “just compensation.” We fail to see how counsel’s assertion of that right in any way maligned the Airport Board or appealed unfairly to the jury’s emotion. In the end, the jury was well aware that it was addressing the fair market value of a local citizen’s long-time residential property, property that one of the nation’s largest international airports, an important corporate citizen and local employer, found necessary for expansion of its operations.
CONCLUSION
In sum, under both the Kentucky and the United States Constitutions, a landowner whose property is taken for public purposes must be justly compensated. In Kentucky, a jury ultimately determines what compensation is just, and in this case there was more than ample evidence for the jury to decide that the Bastón property, surrounded by industrial development and in an area which both the Airport Board and the Boone County Planning Commission envisioned as industrial, would be put to its highest and best use by being developed industrially rather than residentially. Notwithstanding the fact that the property was served by a narrow road that was not ideal and needed improvement, other properties in the area had been adapted for industrial use and qualified experts opined that the Bastón property could also become industrial in use with appropriate, feasible modifications to the road. The Court of Appeals erred by substituting its weighing of the evidence for that of the jury. The Court of Appeals erred further by ruling that the landowner’s counsel appealed impermissi-bly to the jury either by referring to the effects of the airport’s runway project or to the obvious fact that the Airport Board is a large landowner with formidable resources. KRS 416.660 requires that the market effects of government projects be removed from the determination of a condemned property’s market value, not that they be ignored and suppressed altogether from evidence. Finally, the airport’s wealth was hardly a secret, and counsel’s references to it were not gratuitous, inflammatory statements likely to distract the jury from the relevant evidence. Accordingly, we reverse the Opinion of the Court of Appeals and hereby reinstate the November 29, 2005 Judgment of the Boone Circuit Court.
Notes
. Bastón called the airport Deputy Director as a witness but, pursuant to KRE 607, she was entitled to impeach his credibility and, pursuant to KRE 611(c), to ask leading questions.
. In
Smith,
counsel for a defendant-physician in a medical malpractice case equated being sued for malpractice with criminal charges, referred repeatedly to "presumably horrible” photographs that had been excluded from evidence, accused the plaintiff's expert of collaborating with plaintiffs counsel simply to earn money and suggested that all of plaintiffs counsel's objections had prevented the jury from seeing the case he could have properly presented on behalf of the unfairly maligned physician.