34 Pa. Commw. 287 | Pa. Commw. Ct. | 1978
Opinion by
The Commonwealth of Pennsylvania, Department of Transportation (PennDOT) has appealed from a final judgment entered against it in the Court of Common Pleas of Allegheny County.
The Commonwealth, by PennDOT, condemned 2.61 acres of a 78.1 acre tract of land owned by the appellee, WWSW RADIO, Inc. (WWSW). The parcel condemned was a narrow strip along McKnight Road, a public highway, and was taken for the purpose of improving the traffic flow along the highway. A Board of View awarded WWSW $22,000. WWSW appealed to the Court of Common Pleas of Allegheny County. At the trial, PennDOT’s valuation evidence suggested damages of $11,000 and WWSW’s of about $23,2,100. The jury rendered a verdict for WWSW in the amount of $115,000. PennDOT filed a motion for a new trial which was denied. Judgment was entered and this appeal followed. We affirm the judgment.
The first question at issue in this case emanated from the topography of WWSW’s land. Most of the 78 acre tract is extremely hilly. Only two areas are relatively level; one is a high plateau on which WWSW had eight radio transmission towers and the other is a valley containing about 20 acres, the mouth of which fronted for about 235 feet on McKnight Road. The condemnation took the entire frontage in the area of the valley. WWSW contended that the condemnation effectively destroyed the use of the valley for development by depriving the valley area of access to McKnight Road. WWSW contended that the
WWSW produced an engineering expert who testified in his opinion that before condemnation it was feasible from an engineering standpoint to develop a part of the valley area and that an adequate access road could then have been feasibly constructed.
PennDOT then produced an engineering expert in rebuttal. This witness had prepared detailed plans of an access road from McKnight Road to the valley area, as well as estimates of the cost of constructing this road. PennDOT wanted to introduce the plans for this road and an overlay showing amounts of cutting and filling which would be required to build this road. It also offered its witness’s testimony regarding the costs of building this road. The trial judge, on WWSW’s objection, ruled that evidence of this hypothetical road project and of the cost of carrying it out should not be admitted but that the witness could express an opinion, contrary to that' of WWSW’s witness, that development of the valley area was never feasible because of the costs to provide access. The Commonwealth says the trial judge erred in excluding this expert testimony and that it should have a new trial for this reason. We disagree.
Section 603 of the Eminent Domain Code
We emphasize that PennDOT was not prevented from adducing expert opinion evidence that the cost of any access was prohibitive rendering the valley useless for commercial or residential development. Judge Maurice Lottie, who ably tried the case, ruled only that detailed plans for, and the cost of, a particular but hypothetical road which was never proposed to be built by anyone should not be admitted.
We add that the admission of expert opinion evidence is a matter for the discretion of the trial judge, to be disturbed only when discretion is clearly abused. Nixon Hotel, Inc. v. Redevelopment Authority of the City of Butler, 11 Pa. Commonwealth Ct. 519, 315 A.2d 366 (1974), cert. denied, 419 U.S. 842 (1974). Penn-DOT ’s evidence concerning the hypothetical road is clearly the kind which takes juries on excursions far from the points in issue. The points here in issue were: to what use, if any, could the valley be put; was there a market for property for this use; and what effect did the condemnation have on this use and the property’s value. The issue was not the merits of a plan for, and the costs of, an access road designed by PennDOT’s engineering witness.
PennDOT also says it should have had a new trial because the trial judge erred by reading to the jury the following point for charge made by the condemnee:
Plaintiff, WWSW RADIO, INC., on the date of condemnation, was entitled to use its property for commercial and residential purposes in accordance with the zoning ordinance then in effect in ROSS Township. The Sketch Master Plan did not limit the right of WWSW RADIO, INC. to use the property in accordance with the Ross Township zoning ordinance, but was*293 merely a proposed plan that [is]3 consulted by the Commissioners of Eoss Township in the event that WWSW RADIO, INC. asked for an exception, a variance, or permission for a conditional use such as a townhouse.
PennDOT contends that this charge was contrary to the clear weight of the evidence. Again we disagree with the appellant.
The zoning ordinance of Ross Township effective on the date of taking was Ordinance No. 446 of 1949. Under Ordinance 446, that part of WWSW’s property located along and nearest McKnight Road was in the commercial A zoning districts where a variety of commercial uses were permitted. The remainder of the property was zoned Residential B, a district in which single and two-family residences were permitted uses. Thus, charge number six correctly states that on the date of taking, WWSW was entitled to use its property for residential and commercial purposes.
There was also in existence at the time of the taking a document called the Ross Township Sketch Master Plan, described as the officially adopted township plan. WWSW’s land along McKnight Road was shown on the Sketch Master Plan as being proposed for inclusion in a zoning district called “limited access commercial,” more restrictive than the Commercial A zoning in which WWSW’s was in fact located at the time of the take. The township’s zoning officer testified that the Sketch Master Plan had no present effect on permitted uses but was consulted only when landowners wanted zoning amendments or variances. The Master' Sketch Plan in short did not regulate land uses. This is exactly what Judge Louie charged. PennDOT’s complaint on this score is clearly ground
Judgment affirmed.
Order
And Now, this 14th day of March, 1978, the judgment appealed from in the above captioned matter is affirmed.
We quashed an earlier appeal filed before final judgment was entered below.
Act of June 22, 1964 (Spec. Sess.), P.L. 84, 26 P.S. §1-603.
The condemnee’s proposed point for charge used the phrase “might be” at this place. The trial judge substituted the word “is.”