8 Mass. App. Ct. 618 | Mass. App. Ct. | 1979
Following takings of his land by the defendant on May 13, 1969, and December 15, 1970,
The evidence at both trials bearing on the rezoning question is summarized. The land taken consisted of seven parcels totalling 372,994 square feet in the Lower Falls section of Newton. The plaintiff acquired parcels 1 and 2 in 1957, parcel 3 in 1964, and parcels 4 through 7 in 1965. At the time of the takings all the land, with the exception of parcel 3, was zoned for single family residential use.
At the nonjury trial, the plaintiff, to support his contention that a private owner could obtain rezoning for commercial use (the construction of office buildings), introduced evidence that during his ownership he had assembled the lots, including landlocked back parcels with no access to a main street, as a package for development; that he had removed existing buildings; and that he had leveled a sizeable hill on the westerly portion of the land, leaving the whole site generally level and graded. All necessary utilities were proximate and available. Public transportation (on the M.B.T.A. line) and the Massachusetts Turnpike were nearby, and the site was close to the Route 16 (Washington Street) interchange with Route 128, the major circumferential high
At the jury trial, the findings from the nonjury case were introduced,
1. A landowner in an eminent domain action has the right to recover the market value of his property in light of the highest and best use to which the land could reasonably be put. Skyline Homes, Inc. v. Commonwealth, 362 Mass. 684, 685-686 (1972). Colonial Acres, Inc. v. North Reading, 3 Mass. App. Ct. 384, 386 (1975). So long as the prohibited uses are not unduly speculative, the trier should consider them “with discounts for the likelihood of their being realized and for their futurity.” Skyline Homes, Inc. v. Commonwealth, supra at 686, and authorities cited. 4 Nichols, Eminent Domain § 12.314 n.l (rev. 3d ed. 1978). Compare Tigar v. Mystic River Bridge Authy., 329 Mass.. 514, 518-519 (1952). The fact that a potential use is prohibited by the zoning law at the time of the taking does not preclude its consideration. Wenton v. Commonwealth, 335 Mass. 78, 81-82 (1956). Lee v. Commonwealth, 361 Mass. 864 (1972). 4 Nichols, supra § 12.322[1], and authorities cited in n.6 at 12-637 — 12-649. The probability of such rezoning is a matter of proof, and “the judge has a margin of ultimate discretion in deciding whether the proof has gone far enough” to warrant consideration of the issue by the trier. Skyline Homes, Inc. v. Commonwealth, supra at 687, and authorities cited. We are satisfied that
2. We next turn to the question of the admission at the nonjury trial of evidence that after the taking the defendant had petitioned for, and received, a change in the zoning classification of the land. The evidence came in through testimony that the land had been rezoned for commercial and limited industrial use,
As a general rule, an actual change in zoning which takes place as a result of the project for which the property is taken should not be taken into account in valuing the property in a land damage proceeding. 4 Nichols, supra § 12.322[1], and authorities cited in n. 7.1 at 12-655 — 12-656. See also Williams v. Denver, 147 Colo. 195, 200-202 (1961); State v. Kruger, 77 Wash. 2d 105 (1969); Annot. 9 A.L.R3d 291, 320-323 (1966). Although no Massachusetts decision has been brought to our attention, the logic of decisions close in point inescapably demonstrates that we would follow the rule. See May v. Boston, 158 Mass. 21, 29 (1893) (“It was evidently the purpose of the Legislature not to permit landowners to recover damages for the land taken for a public use at a value enhanced by the public improvement which owes its existence to the change of use of the very land which is to be paid for”). To the same effect see Smith v. Commonwealth, 210 Mass. 259, 263 (1911); Cole v. Boston
The critical question in this case is whether the judge at the nonjury proceeding could reasonably find that there was a likelihood that a private developer, as well as the taking authority, could have obtained the rezoning. If this was so, then the subsequent change of zone was not solely or primarily due to the talents or political leverage of the taking authority or the specific characteristics of its project, and the judges at both trials would possess a margin of discretion in deciding whether to admit or exclude the evidence as additional proof of a reasonable prospect of change bearing on value.
We conclude, based on all of the evidence discussed in part 1 of this opinion, that the proof had advanced to the point where the judge at the nonjury proceedings could exercise his discretion to admit and consider the evidence. We also think in particular that the fact that the agency had prepared a plan which had been approved by
Moreover, the judge’s treatment of the issue at the jury trial constitutes an independent basis for upholding the verdict. At that trial, all evidence directly or indirectly concerning the defendant’s rezoning efforts was excluded, including the land use goals contained in the Community Renewal Program Report.
In our opinion, the precise and unequivocal instructions of the judge in effect excised from the case the disputed finding in the nonjury decision. The charge confined the jury specifically to the question of probable rezoning as developed by the proof at the trial. We also think the defendant was under an obligation to object to the charge if it was dissatisfied by the treatment of the issue. We therefore assume that the jury confined itself to the issue in the special question in light of the evidence at the trial, and that they were not confused, misled, or inflamed in any respect by the nonjury findings.
3. The defendant also objected to certain rulings made by the judge at the jury trial with reference to the testimony of the plaintiff’s expert as to value and the testimony of a second witness as to two of the financial aspects of comparable sales.
Bernard Singer, a qualified real estate appraiser, testified for the plaintiff and rendered an opinion that the fair market value of the land at the time of the taking was $1,300,872. In the course of his testimony, he was questioned as to his consideration of the zoning factor in formulating his opinion of value, and he expressed the opinion that there was “a certainty of rezoning for this particular land . . . though we use the technical term ‘a probability of rezoning.’” No objection was made by the defendant to the form of the opinion. He was extensively
The motion was properly denied. An examination of Singer’s entire testimony reveals that he did not improperly base his opinion as to value on an assumption that the land had already been zoned to a higher classification. His opinion took into consideration his estimation that the highest and best use of the land would be for commercial development, and the opinion was predicated upon the existing residential zoning as affected by a reasonable probability of a zone change. Furthermore, his opinion considered the zoning factor in light of all the evidence that illuminated the prospect for a change and was based on the correct legal assumption that that prospect might be taken into account by a willing buyer in the price he would pay for the land. Skyline Homes, Inc. v. Commonwealth, 362 Mass. at 686-687.
Judgments affirmed.
The first taking took place under the provisions of former G. L. c. 121, § 26P(6), which was repealed by St. 1969, c. 751, § 2; the second taking was governed by G. L. c. 121B, § 11(d), inserted by St. 1969, c. 751, § 1.
The cases were consolidated. After the jury trial, a single verdict was returned (H.E. Fletcher Co. v. Commonwealth, 350 Mass. 316, 317 [1966]), but separate judgments were entered, the amount of the verdict being apportioned between the two cases in accordance with a stipulation of the parties.
The evidence indicated that parcel 3 was purchased from the Commonwealth and had been a part of a Route 128 service road boundary. It was unzoned at the time of the takings.
This evidence revealed the following commercial uses nearby: a gas station and a Howard Johnson’s restaurant constructed on Route 128 about 300 to 400 feet from the land; property directly across Washington Street on Walnut Street in Wellesley approximately 500 feet distant that was subject to extensive building, representing a change in land use pattern, during the 1960’s; the presence of a Holiday Inn built in the early 1960’s at the Grove Street intersection of Route 128, 300 to 400 feet from the property; a Marriott hotel, approximately one mile to the north of the property; office buildings on Route 9, the next intersection on Route 128 from Route 16; a nursing home on Washington Street approximately 800 to 1,000 feet from the site; and indications that through the 1960’s specific parcels in the area of the property had been rezoned from residential to commercial uses, and that existing commercial uses had intensified their activities where the zoning ordinance permitted expanded or increased commercial use.
The community renewal plan stated in part:
“The land within the Lower Falls study area is located ideally in relation to the industrial and research uses along Route 128. A large section of this study area appears to be undeveloped and does not take advantage of location. Conditions are recognized in the suggested land use pattern which includes a garden-type office development in the underdeveloped area abutting Route 128... .
“The construction of such office facility in a garden section would not detract from the residential character of the neighborhood. . . .
“Highest and best use in this study area includes the development of vacant land adjacent to Route 128 as a prestige garden-type office development. . ..
“Factors such as locational advantage, Newton’s prestige reputation, and the introduction of the Massachusetts Turnpike extension combine to make Newton a desired community. These external factors can be of economic advantage____ They can encourage employment, broaden the tax base and restore land to high future productivi*622 ty. To accomplish this will require a re-study of the zoning ordinance and adoption of substantial zoning map and ordinance changes to permit these areas to be developed to their indicated highest uses. . . .
“Newton Lower Falls Study area.
“Land within this Study area is located ideally in relation to industrial and research uses along Route 128 and is considered by some developers to be close to a 100% location.
“Highest and best use of the land immediately adjacent to Route 128 and extending to Washington Street is for a garden-type prestige development. Maximum location advantages exist for both advertising and transportation, and other uses of the site such as a motel or housing would not be its best use. .. .
“The demand for additional office or research space is great in the Lower Falls area because Route 128 has made it highly accessible for many portions of the metropolitan area. . ..
“Newton Lower Falls is the point of converging of several important routes and a growing area of industrial and research development.”
The defendant’s evidence indicated that the entrance to the site from Washington Street was complicated by the intersection of Hamilton Street and Waverly Place at the point where those streets joined Washington Street, that Waverly Place was a narrow access road and that a sizeable wall existed on the property which might impede the flow of traffic.
This evidence consisted of testimony that the urban renewal plan contained two alternatives, one assuming both Federal and State participation and the other only State participation. The latter alternative, which the aldermen had approved, provided for access to the site through Waverly Place substantially as it existed and with the existence of the wall, which was to be removed under the federally assisted alternative. Additionally, it was brought out that parcel 1 comprising approximately 26,600 square feet was available to be used in whole or in part for access, and that the plaintiff had originally established Waverly Place.
“I find that the highest and best use for the [plaintiff’s] land would be for business and commercial office use and that its geographic location for that use is excellent and that there was a reasonable probability that a zoning change could be obtained for that purpose by a private individual. I find that such a zoning change was obtained by the Newton Redevelopment Authority and that this land is presently being utilized for these purposes.”
The findings from the nonjury case were introduced by agreement of the parties and read to the jury by the judge. We reject the plaintiff’s argument that the defendant, by stipulating to the admission of the findings, waived all objections thereto. It is apparent from the colloquies between the judge and counsel that the defendant knew it could not seek appellate review of the challenged rulings at the jury waived trial until after the jury trial, and did not intend to abandon its objections. The judge at the jury trial indicated that he felt he had limited authority to change the findings from the previous trial. The stipulation was designed to make the jury trial more efficient and not as a surrender of the right to appellate review. With the exception of one issue, as to the judge’s charge, we consider the defendant’s rights adequately saved. See Haufler v. Commonwealth, 372 Mass. 527, 528-532 (1977).
Some of the defendant’s witnesses thought that there might be some community opposition to commercial development in the area,
We would have some concern with the judge’s admission in evidence of the community renewal plan had not the portions of the plan introduced been confined to statements of broad land use goals for the area as a whole without specification of the plaintiff’s land. But in the posture in which it was admitted, it cannot be said that the programmatic themes in the plan were so dependent on the resources of the renewal agency as to preclude a private developer from achieving the same goals.
There is no indication that any of the plaintiff's land has been devoted to anything but commercial or residential uses by the defendant.
The exclusion of the evidence also would not constitute an abuse of the judge’s discretion. See Haufler v. Commonwealth, 372 Mass. 527, 530 n.3 (1977), and D'Annolfo v. Stoneham Housing Authy., 375 Mass. 650, 656 (1978).
“Just prior to the takings in 1969 and 1970 (and for these purposes they may be considered as one taking), was there a reasonable probability that the land in question owned by the petitioner would soon be rezoned from single family residential use to commercial or business use?” The jury answered the question yes.
The charge on this aspect reads in part as follows:
“In the earlier case, the judge who heard that was required to file a written decision, in which he found the amount of damages and made cer*629 tain findings of fact. You have these findings and will have them in the jury room with you as Exhibit 1. I am telling you this because the same statute that provides for two trials provides that the previous decision or findings, including any award of damages, shall be prima facie evidence upon such matters as are put in issue by the pleadings. In this case, the question of whether or not there was a reasonable prospect of petitioner’s land being rezoned soon after the taking is at issue. The judge in the prior case found there was such a reasonable probability that a zoning change could be obtained by a private individual. He also found a dollar amount of damages for each of the two parcels taken, although you will be considering them as one parcel in returning your verdict.”
“In deciding whether there was a reasonable probability of such rezoning to be accomplished soon, you may consider the following factors: Petitions for rezoning that were filed both before and after the takings in the City of Newton, and the action taken by the City on those petitions for rezoning. You may consider the length of time that the petitioner owned the property and the efforts, if any, made by him to have the land rezoned. You may consider the character of the neighborhood and surrounding land, and whether it was essentially residential or business in nature. You may consider whether there had been any rezoning of land from residential to business or commercial use in the geographical area of the petitioner’s land that you consider relevant. You may not, however, consider any effect on zoning created by the project for which this property was in fact acquired. This means that you may not take into account in any way on the issue of reasonable probability of rezoning a zoning change after the taking on this locus related to the very purpose of the taking.
“In short, you may not consider if this property was taken for urban renewal that after the urban renewal taking it was rezoned in connection with the urban renewal. That is not a fit subject for your consideration. Nor may you consider any actual construction that occurred on this site after the taking as part of an urban renewal or redevelopment project. It is not sufficient for you on the issue of reasonable probability to show merely that the land is suited to a given use. The petitioner has the burden of proof by a fair preponderance of the evidence that such rezoning would have soon been accomplished.”
This conclusion is also supported to some extent by the jury’s disregard of the amount of damages assessed by the judge after the first trial and its independent calculation of damages at a figure lower than the highest valuations introduced in evidence.
In permitting liberal cross-examination, the judge said: “[I]f [Singer] chooses to go beyond the reasonable probability standard and to say it was certain and a lead pipe cinch, he is going to expose himself to that kind of cross-examination even more than if he spoke in terms of probability. People shouldn’t make lead pipe promises.”
The expression of categorical opinions as to the prospect of rezoning was not one-sided. In response to a question by defense counsel whether he gave any weight in his valuation analysis to a reasonable
“Jurors, I am going to give you a cautionary instruction here. It will be repeated again in the context of the complete instructions. Mr. Singer testified that he considered certain properties comparable or of value in making up his appraisal, and he listed a number of properties and included in the properties Mr. Singer listed was the property at 20 Walnut Street which this gentleman happened to be associated with. He has no other connection with the case. Because of certain rules of evidence, Mr. Singer would not be able to testify directly to the price paid, but a person who had to do with the transaction can testify to the price paid because of his personal knowledge. Now, the problem at the moment and the caution I want to give you is this: Mr. Roach’s property at the time of the taking was zoned residential. The property that Mr. Stimson is going to discuss was zoned business or commerical at the time of the sale in question. We know that
“Now, you mustn’t take the dollar value or the per foot value that Mr. Stimson is going to tell you about and automatically transfer that to the Roach land because one was zoned commercial, the Stimson property, and one was zoned residential. However, if after the case is complete and it is submitted to you you find that there was a reasonable probability of rezoning while Mr. Roach owned the land, if you should determine that later on, the subject matter on which Mr. Mulhern for Mr. Roach had the burden of convincing you, then you will be able to consider in valuing the taken property what a willing buyer would pay a willing seller considering the reasonable probability of rezoning.
“Now, that means if you find at the end of the case this reasonable probability of rezoning, one element that a buyer would consider when he goes to buy the property from Mr. Roach is that reasonable probability discounted, however, by whatever factors you consider appropriate, including the risk of whether or not you will get a rezoning or what may happen, in any event, in the future. So the cautionary instruction is that although I am allowing this into evidence as some evidence of values involved, you should not assume that there is any automatic transference of the price that will be quoted by Mr. Stimson per foot to the Roach land.”