Masheter v. Wood

Paul W. Brown, J.,

dissenting. The majority opinion holds that fair market value in a condemnation proceeding must be determined by the trier of the facts only as to those uses (i. e., Mghest and best use) permitted by the controlling zomng ordinance. I am concerned that the exclusion of expert opirnon as to the reasonable probability of zoning change may be construed to mean that the testi *179 mony of an expert witness concerning the value of real property might be excluded if it appears that the witness, in assessing the valne of the property, considered the likelihood of reclassification to a higher and more valuable use.

A serious question arises as to wharf; is just compensation compatible with the requirement of the Fifth Amendment to the United States Constitution and Section 19, Article I of the Ohio Constitution, where prospective uses presently prohibited by zoning are arbitrarily excluded as matters to be considered in calculating fair market value on the date of taking. United States v. Meadow Brook Club (1958), 259 F. 2d 41 .

For a similar holding that zoning regulations cannot arbitrarily limit uses considered in determining market value read the excellent opinion in Board of Commrs. v. Tallahassee Bank & Trust Co. (Fla. 1959), 108 S. 2d 74, 85, in which the court said:

“* * *we are not inclined to commend an arbitrary exercise of the policy power by one branch of government (municipality) in order to pave the way for a less expensive exercise of the power of eminent domain by another branch to the detriment of the private property owner. # * *

Since the inquiry in appropriation matters is value, evidence of which turns in large degree upon expert opinion, it seems most important that we not designate considerations of prospective use as speculative as a matter of law.

The trial courts should be the initial linedrawers who determine upon familiar tests the point at which evidence and proper opinion cease and impermissible speculation commences.

Noteworthy is the case of State Roads Comm. v. Warriner (1956), 211 Md. 480 , 128 A. 2d 248 , wherein the court held:

“ * * * evidence of a reasonable probability of a change in zoning classification within a reasonable time may prop *180 erly be admitted in condemnation cases, and its influence npon market value at the time of the taking may be taken into account.”

See, also, 4 Nichols, Eminent Domain (3 Ed.), 251, Section 12.322; 1 Orgel, Valuation Under Eminent Domain (2 Ed.), 167, Section 34; Beverly Hills v. Anger (1930), 110 Cal. App. 626 , 294 P. 476 ; Long Beach City High School Dist. v. Stewart (1947), 30 Cal. 2d 763 , 185 P. 2d 585 ; State, ex rel. State Highway Comm., v. Williams (Mo. 1956), 289 S. W. 2d 64 ; Austin v. Cannizzo (1954), 153 Tex. 324 , 267 S. W. 2d 808 ; Portland & Seattle Ry. Co. v. Ladd (1907), 47 Wash. 88 , 91 P. 573 ; Cunard v. Rex (1910), 43 Can. S. Ct. 88.

I -would reverse the judgment of the Court of Appeals and hold that on the facts of this case, where the evidence in an eminent domain proceeding shows that the roadway upon which the subject property abutted had in recent years been widened from two to four lanes, that the vicinity of the subject property had' undergone a profound and substantial change of use pattern from rural and residential use to highly developed commercial uses, and that several recent sales of property in the vicinity had been made at inflated prices due to the expectation of zone changes, it was not error for the trial court to admit the opinions of expert real estate appraisers that the highest and best use of the subject property was commercial rather than residential, that in the ordinary course of events, absent the ' impending appropriation of the property for highway purposes, the subject property would be rezoned commercial, and that a willing purchaser would value the subject property for a commercial, rather than a residential, use, and would be willing to pay a correspondingly higher price for the property,