Bird v. Boston Redevelopment Authority

• Decision Date: 13 November 1979
• Citation: 396 N.E.2d 718,8 Mass.App.Ct. 659
• Parties: Sidney M. BIRD et al., 1 Trustees, v. BOSTON REDEVELOPMENT AUTHORITY.
• Court: Appeals Court of Massachusetts

Page 718

396 N.E.2d 718

8 Mass.App.Ct. 659

Sidney M. BIRD et al., ¹ Trustees, v. BOSTON REDEVELOPMENT AUTHORITY.

Appeals Court of Massachusetts, Suffolk.

Argued Oct. 11, 1979.

Decided Nov. 13, 1979.

George F. Mahoney, Boston, for defendant.

J. Owen Todd, Boston, for plaintiffs.

Before HALE, C. J., and GREANEY and DREBEN, JJ.

GREANEY, Justice.

By their action the plaintiffs sought an assessment of damages (G.L. c. 79, § 12) for the taking of their land on June 28, 1974, by the defendant in connection with the redevelopment of the downtown waterfront district. The premises were situated in that district on Commercial Street at the intersection of Richmond Street and consisted of a level, blacktopped lot, substantially rectangular in shape, containing 21,397 square feet, with frontage on and access to both streets. At the time of the taking the location was licensed as an off-street parking facility for sixty-five cars and was zoned for light manufacturing and commercial uses. By stipulation the case was tried to a jury in the first instance. G.L. c. 79, § 22, as appearing in St.1973, c. 983, § 1. The plaintiffs' expert used the market data approach to valuation and concluded that the highest and best use of the premises would have been as a site for new construction within permitted zoning uses, with an interim or holding use as a parking lot. The defendant's experts used primarily the income approach to valuation and concluded that the highest and best use of the premises would have been a continuation of its existing use as a parking lot. The jury assessed damages in the amount of $267,000. The errors argued by the defendant on appeal concern (1) certain rulings as to the admissibility of evidence; (2) the propriety of a portion of final argument by plaintiffs' counsel; and (3) the denial of the defendant's motion for a new trial. Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974). We affirm the judgment and the order denying a new trial.

1. The defendant claims that the admission of the sales prices for two parking lots in 1964 and in 1966 relied upon by the plaintiffs' appraiser as comparable sales in his market data approach to value was in error. As to both sales there were sufficient similarities between the property determined by the appraiser to be comparable and the plaintiffs' land to permit the judge to exercise his discretion in favor of admitting the sales prices. Boston & Worcester R. R. v. Old Colony & Fall River R. R., 3 Allen 142, 145-147 (1861). McCabe v. Chelsea, 265 Mass. 494, 496, 163 N.E. 255 (1929). Iris v. Hingham, 303 Mass. 401, 408-409, 22 N.E.2d 13 (1939). Congregation of the Mission of St. Vincent de Paul v. Commonwealth, 336 Mass. 357, 359, 145 N.E.2d 681 (1957), and cases cited. As to the 1964 Columbus Avenue sale, the facts that the parking lot was located in a different area of the city and that it was subject to different zoning would not preclude admissibility of the sales price. See Boyd v. Lawrence Redev. Authy., 348 Mass. 83, 85-86, 202 N.E.2d 297 (1964) (discretionary admissibility of sales several miles away in a different town); Gregori v. Springfield, 348 Mass. 395, 396-397, 204 N.E.2d 113 (1965) (discretionary admissibility of sales price of land differently zoned). As to the 1966 Atlantic Avenue sale, the facts that an arrangement existed with a boat company for use of a pier and that a building on the site was tenanted did not require exclusion of the sales price in the absence of proof as to the specifics of either arrangement or that either contributed in any way to the sales price. The dissimilarities between the comparables and the property taken were thoroughly explored through cross-examination, and the judge's instructions to the jury before the sales prices were admitted kept the jury's focus on the evidence within bounds. Finally, we find no support in the record for the defendant's hypothesis that the plaintiffs' expert used the two sales as independent evidence of value as opposed to sales data in support of, or as background for, his opinion of value for the property.

2. The defendant claims error in the exclusion of a certified copy of the deed relating to the 1966 sale. The purpose of offering the deed appears to have been an effort to clarify a dispute among the testifying appraisers as to the extent of the property included in that sale. The offer of the deed had no value in impeaching the plaintiffs' expert. Nor would it add anything material to the property's description, because that description had already been developed through testimony and through photographs and plans. Its exclusion falls within the familiar rule that "how far the cross-examination of a witness may be considered helpful and relevant to the issues on trial, as well as the extent that the accuracy, veracity and credibility of a witness may be tested, rests largely in the sound discretion of the trial judge, and his action, where as here no abuse of discretion is shown, is final." Commonwealth v. Makarewicz, 333 Mass. 575, 593, 132 N.E.2d 294, 304 (1956), quoting from Commonwealth v. Shea, 323 Mass. 406, 417, 82 N.E.2d 511 (1948). Posner v. Minsky, 353 Mass. 656, 661, 234 N.Ed.2d 287 (1968). Additional arguments made in the defendant's brief in support of the admission of the deed, namely, that it would have shown the conveyance of rights in adjacent land or flats and that it would have shown that the grant was subject to a lease, were not made below and as a consequence will not be considered here. Trustees of Stigmatine Fathers, Inc. v. Secretary of Admn. & Fin., 369 Mass. 562, 565, 341 N.E.2d 662 (1976). Corman Realty, Inc. v. Rothstein, 4 Mass.App. 777, 341 N.E.2d 292 (1976).

3. Early in the trial the plaintiffs had placed into evidence without objection the defendant's urban renewal plan published in 1964, which showed the perimeter of the area to be redeveloped, the parcels which would be acquired, and the buildings which would be rehabilitated, as well as buildings to be constructed. A short time later plaintiffs' counsel offered a second plan published by the defendant, revised as of November, 1974, showing the waterfront renewal area, and a single photograph taken in June, 1977 (three years after the taking), showing an overhead view of the renewal area. Both exhibits were met by the objection that they tended to enlarge the jury's view of value by exposing them to changes that occurred after the taking. The judge did not commit an abuse of discretion in admitting either exhibit. The 1974 redevelopment plan had relevance to show the perimeter of the renewal area as of the date of the taking, as opposed to its perimeter when the prospect was announced in 1964, to show development existing in the area in 1974 independent of the renewal project, and to give support to the position of the plaintiffs' expert that the highest and best use of the property was eventual development. The photograph had relevance to distinguish features of the area which existed in 1974, as opposed to those which came into existence later. At the time of the introduction of the plan and just prior to the introduction of the photo the jury received detailed instructions that the landowner is entitled to damages equal to the land's value prior to the commencement of the public work which necessitates the taking; that where the value of the land is enhanced because it is known that the land will be taken by eminent domain, the landowner is not entitled to the increase in value; and, conversely, where the land's value is decreased because of the impending taking, the landowner is not required to suffer the loss. Lipinski v. Lynn Redev. Authy., 355 Mass. 550, 553-554, 246 N.E.2d 429 (1969). These instructions were repeated again in the charge. We do not assume that the jury disregarded the cautions given that controlled the use of the evidence. Ferris v. Turner, 320 Mass. 555, 558, 70 N.E.2d 715 (1947). DiIorio v. Tipaldi, 4 Mass.App. 640, 646-647, 357 N.E.2d 319 (1976). Moreover, the photograph added nothing more to what the jury had already seen when they were taken on the view at the start of the case.

4. The defendant claims that a reference in closing argument by the plaintiffs' counsel to the fact that the landowners had paid real estate taxes on...