This eminent domain proceeding was
The sole issue before this court is the extent to which an expert valuation witness may base his opinion on the highest and best use not permitted by existing zoning regulations.
The compensation to which a landowner is entitled in the event of the condemnation of his land is its fair cash market value for its highest and best use at the time the condemnation petition is filed. Department of Public Works and Buildings v. Rogers, 39 Ill2d 109, 113,
Just compensation to which the landowner is entitled under section 13 of article 2 of the State Constitution and under section 1 of the Eminent Domain Act (Ill Rev Stats 1967, c 47, par 1) 'has been defined as the amount of money necessary to put him in as good condition financially as he was with the ownership of the property and as a sum of money that is equivalent to the value of the property. (Housing Authority v. Kosydor, supra 605.)
Market value is the price which the property would bring if it were offered by a willing seller to a willing buyer. (Housing Authority v. Kosydor, supra 606.) The market value to which he is entitled is for the most
Until recently, our courts, while recognizing the principles set forth above, had not announced whether the highest and best use determined in arriving at market value might include a use which would not be permitted under existing zoning restrictions. In Park Dist. of Highland Park v. Becker, 60 Ill App2d 463, 468,
The questions remain: what tyрe of evidence, and under what circumstances may evidence of probable rezoning be admitted ? Possible rezoning is relevant only if it reflects some value in the land because of a present capacity for future use which may be anticipated with reasonable certainty and which may be made the basis of an intelligent estimate of value. Stated differently, if the possibility of rezoning is too speculative, it should not be considered in determining the value of the condemned property.
Subsequently, in Department of Public Works and Buildings v. Rogers, 78 Ill App2d 141,
We also held in Rogers that the trial court erred in refusing to admit into evidence testimony relating to both the rezoning of a nearby tract of land along the same thoroughfare shortly prior to the time in question, and the ordinance of rezoning, even though the rezoning was of a substantially larger tract and for a different purpose. We held that such evidence was admissible as tending to show the flexibility of the particular zoning ordinance and, thus, was relevant as to the reasonable probability of rezoning the tract in question.
The substance of these decisions is that it is proper to base value upon the highest and best use permitted—not only under existing zoning limitations but also under other zoning limitations—where there is a reasonable probability of the granting of such zoning in the near future. It is not proper, however, to present a witness as an expert solely to testify to the probability of
Valuation witnesses, however, must of necessity, relate their testimony to a reasonable probability of rezoning if the use upon which they base the market value is not permitted under the existing zoning restrictions. In most instances, it will be necessary for them to state that they based their valuation opinion upon a reasonable probability of rezoning. Whether or not their opinion as to valuation will be permitted to stand will depend on whether there is sufficient evidence оf factors which would permit a jury to conclude that there is a reasonable probability of rezoning.
Without purporting to set forth all of such factors, some of the significant factors may be the rezoning of nearby property, growth patterns, changе of use patterns and character of neighborhood, demand within the area for certain types of land use, sales of related or similar properties at prices reflecting anticipated rezoning, physical characteristics of the subject and of nearby properties and, under proper circumstances, the age of the zoning ordinance. 9 ALR3d 291 et seq., Eminent Domain—Damages—Zoning; 53 Ill Bar Jour 956; Limerick, The Effect of Zoning on Valuation in Eminent Domain.
Without opening wide the floodgates for such testimony, courts have usually taken the view that a prospective purchaser, on the open market, on a proper showing that a change in zoning was reasonably probable in the reasonably near future, would consider the probability оf such change in valuing the property, and that courts in condemnation proceedings should also receive such evidence. United States v. Meadow Brook Club, 259 F2d 41, 45 (1958 CA 2nd NY) cert den
This was the procedure followed by the trial court below. The trial court, out of the presence of the jury, chose to hear the expert witnesses’ basis for valuing the property under a use not permitted under the existing zoning. It determined that there was not adequate evidence of a probability of rezoning to permit them to testify before the jury as to a valuation based upon a use permitted only by such rezoning. This procedure did not in any way deny the defеndants the right to have compensation determined by a jury. This right contemplates that the jury will be presented only competent evidence. If a court correctly determines that the evidence is not competent, there is no right to have such evidence heard by a jury.
The trial court, however, determined after the decision of the Supreme Court in Department of Public Works and Buildings v. Rogers, supra, that it had erred in not permitting these witnesses to testify; and in not permitting the jury to determine the factual question of the reasonable probability of rezoning and its attendant effect upon
The land in question was zoned R-l Single-Family Residence. The defendants’ expert witnesses sought to give their opinion of value based upon the highest and best use as a planned unit development, containing multiple family dwellings; and the court refused to allow such evidence. The qualifications of the three experts offered by the defendants were not questioned.
The first two witnesses testified, in chambers, to the various factors upon which they relied to support their belief that there was a reasonable probability of the rezoning of the property to permit its use as a planned unit development, which in their opiniоn was the highest and best use for the property. The factors included the subsoil condition; the demand for such property in the area, including the existing vacancy rate; the surrounding area and comparability therewith; the effect of such rezoning as a buffеr between the adjacent railroad tracts and single-family zoning; the trend of zoning in the area; and other factors. The last witness did not testify to the factors suggesting the reasonable probability of rezoning, since at that time the trial court had clearly indicаted that it would not permit a valuation opinion based upon the highest and best use other than that permitted under the existing zoning—single-family use.
We believe that the trial court, on reconsideration of its action upon hearing the post-trial motion, correctly determined that it should have permitted the defendants’ witnesses to testify before the jury and the jury to determine whether, under such testimony, there was a reasonable probability of rezoning, and if so, its effect on the fair market value of the premises in questiоn.
The trial court is granted discretion in determining whether it should grant a new trial and its determination, particularly in granting a new trial, will
It should be clear from the foregoing that while permitted in some jurisdictions, a witness in this State may not be offered solely to render an expert opinion as to whether or not a legislative body will in fact grаnt a rezoning. This applies, as well, to a member of that legislative body. A witness offered, however, as an expert valuation witness, may in the course of explaining the basis for his determination, testify to a reasonable probability of rezoning if such is a factor in arriving at his valuation and if warranted by the matters in evidence suggesting a basis for such rezoning.
Some of the questions asked of and answers given by the witnesses in chambers may thus have been improper. We agree, however, with the trial court that the expert witnеsses for the defendants stated sufficient relevant factors to support their belief concerning a reasonable probability of rezoning the property to qualify the admission of such testimony in evidence. Thus, the defendants could present to the jury their theory of the highest and best use of the property and its valuation thereunder.
The judgment of the trial court in granting a new trial as to the two parcels of real estate which are subject to this appeal is affirmed, and the cause remanded for further proceedings not inconsistent herewith.
Affirmed and remanded.