D'Annolfo v. Stoneham Housing Authority

• Citation: 378 N.E.2d 971,375 Mass. 650
• Parties: Frank P. D'ANNOLFO et al., trustees 1 v. STONEHAM HOUSING AUTHORITY.
• Decision Date: 06 July 1978
• Court: United States State Supreme Judicial Court of Massachusetts

Page 971

378 N.E.2d 971

375 Mass. 650

Frank P. D'ANNOLFO et al., trustees ¹ v. STONEHAM HOUSING AUTHORITY.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 4, 1978.

Decided July 6, 1978.

Eugene G. Panarese, Boston (David J. Fine, Cambridge, with him), for plaintiffs.

William D. Barry, Medford (David J. Barry, III, Medford, with him), for defendant.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

WILKINS, Justice.

On April 18, 1972, the Stoneham Housing Authority (authority) took from the plaintiffs approximately four acres of vacant land (premises) for a housing project. The plaintiffs commenced this action to recover damages for the taking. The premises are in a single residence zoning district in which multi-family residential uses are forbidden, except that, pursuant to a July 6, 1971, zoning amendment, the Stoneham board of appeals may grant a special exception for an "elderly housing project."

Before any testimony was introduced, counsel advised the judge that the plaintiffs intended to offer evidence concerning the prospect of a zoning change applicable to the premises and that the plaintiffs' expert was intending to give an opinion of the value of the premises based on his belief that there was a reasonable prospect that zoning restrictions against the use of the premises for multi-family purposes could be lifted. The judge asked for an offer of proof. The plaintiffs indicated that their evidence would show that, even before the taking, the authority had obtained a special permit to construct housing for the elderly on the premises; that the authority had other projects in the vicinity of the premises; that the town had changed the zoning of certain areas to permit multi-family uses; and that, as stated earlier, their expert would testify that there was a reasonable prospect of a relevant zoning change.

The judge considered our opinion in Skyline Homes, Inc. v. Commonwealth, 362 Mass. 684, 290 N.E.2d 160 (1972), where we noted various circumstances in which a reasonable prospect of a zoning change might be found. He recognized that he had a measure of discretion to admit or to exclude evidence of value based on a reasonable prospect of a zoning change. He noted also that there was no indication that a town board or committee had recommended a change of zoning for the premises, that there had been no rezoning in the vicinity of the premises which would help a private landowner, and that there was no indication of a change in the character of the surrounding area. Counsel for the authority presented examples of proposed zoning changes on which the town meeting had not acted favorably. He pointed out that in March, 1973, the town meeting had voted, 202 to 14, to amend the zoning by-law to impose a moratorium until June 30, 1975, on the construction of apartment houses in the town. He stressed the fact that, with the exception of one parcel surrounded by less restrictive zoning, from 1966 to the time of trial (April, 1976), the town had not acted favorably on any proposal to change land from a single family to a multiple dwelling district.

The judge concluded that, if he were the trier of fact, he would not find a reasonable prospect of a lifting of the zoning restriction. However, he decided to let the trial proceed, prepared to rule on the admissibility of evidence concerning the prospects of a zoning change as the trial progressed.

At the beginning of the second day of testimony, the judge decided, on his own motion, to admit all evidence bearing either way on the likelihood of a zoning change, and to submit three special questions to the jury under Mass.R.Civ.P. 49(a), 365 Mass. 812 (1974). These questions would ask the jury (1) to give the fair market value of the premises under then existing zoning; (2) to decide whether on the date of the taking there was a reasonable prospect of a zoning change; and (3) if there were such a prospect, to find the fair market value of the premises. He did this to avoid the necessity of a new trial, if an appellate court should determine that it was error to disregard the plaintiffs' evidence of value based on a reasonable prospect of a zoning change. The judge made it clear that he would probably decline to enter a judgment based on an affirmative answer to the second question. The judge indicated that he intended to reserve his power ultimately to exercise his discretion to exclude evidence of the prospects of a zoning change from proper consideration, until after the questions were answered. The trial continued accordingly.

The plaintiffs' expert testified to a value of the premises of $100,000, giving recognition to a reasonable probability of a zoning change. He also testified that the fair market value of the premises was.$61,500, under the zoning restrictions in effect at the time of the taking. One of the plaintiffs gave $120,000 as his opinion of the value of the premises on the date of the taking. The authority's expert testified to a value of $25,000. He indicated that there was no chance of a zoning change, but agreed that qualified appraisers might disagree.

At the close of the evidence, the judge made a finding, and indicated that he would file a memorandum (as he did), that in his discretion the plaintiffs had not shown a reasonable prospect of a zoning change. Nonetheless, he denied the authority's motion for a directed verdict on question two, and rejected the plaintiffs' argument that no special questions should be asked.

The judge submitted three questions to the jury.² The jury answered that (1) under existing zoning the fair market value of the premises was $65,000 on the date of the taking; (2) there was a reasonable prospect that the premises could be used lawfully for multi-unit housing; and (3) thus, the fair market value of the premises was $99,000 on the date of the taking.

Judgment was not entered immediately on the jury's verdict. Two days after the verdict, the judge filed his supporting memorandum and ordered that judgment be entered in the amount of $65,000, plus interests and costs. ³

On May 4, 1976, and within ten days of the jury's verdict, the authority filed a motion for judgment notwithstanding the verdict, asking that the judge set aside the answers to questions two and three and instead that a negative answer be given to question two and that question three not be answered. The authority also moved for a new trial on grounds, among others, that the verdict was excessive and against the weight of the evidence. The judge heard the parties on May 18, 1976, treating the motion for a new trial as directed at least to the verdict of $65,000. He said neither the $65,000 figure nor the $99,000 figure made sense to him and that the verdict of $65,000 struck him as preposterous. He indicated that he would allow the motion for judgment notwithstanding the verdict as to questions two and three and would take some action with respect to a new trial. On June 4, 1976, he allowed the motion for judgment notwithstanding the verdict on questions two and three, and, without stating any grounds, allowed the motion for a new trial. For some reason, a record of these actions was not docketed until November 12, 1976.

Counsel for the authority then wrote to the judge asking whether he had intended to order a remittitur. ⁴ On December 7, 1976, without hearing, the judge added the following to the order allowing the authority's motion for judgment notwithstanding the verdict: "(J)udgment will remain for the plaintiff. However, answers to questions # 2 and # 3 of the Special verdict are to be changed # 2 to the negative and # 3 not to be answered since the jury's response was against the weight of the evidence." He revoked the June 4 order allowing the motion for a new trial, and entered an order stating that the $65,000 verdict was excessive by $27,000, and granting a new trial unless, within ten days, the plaintiffs remitted $27,000, leaving a verdict of $38,000. The plaintiffs elected not to remit any portion of the verdict. We granted direct appellate review.

1. We turn our attention first to the plaintiffs' challenge to the judge's action in entering judgment notwithstanding the $99,000 verdict.

The appeal from the entry of judgment notwithstanding the verdict may be considered at this time despite the order for a new trial. ⁵ The authority had moved for a directed verdict on question two. That motion was denied, and the authority moved seasonably under Mass.R.Civ.P. 50(b) that the verdict be set aside and judgment be entered in accordance with its motion for a directed verdict. It moved also for a new trial, as was its right. Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974). The plaintiffs acknowledge that the authority moved for a new trial on questions two and three. The judge conditionally allowed the authority's motion for a new trial as to the $99,000 verdict, such a trial to take place only if he were wrong in not entering judgment on that verdict. See Mass.R.Civ.P. 50(c)(1), 365 Mass. 814 (1974). The finality of a judgment is not affected by a conditional allowance of a motion for a new trial. Id. 9 C. A. Wright & A. R. Miller, Federal Practice and Procedure § 2540, at 618 (1971). See 5A Moore's Federal Practice, par. 50.13(1), at 50-117, 50-118 (2d ed. 1977). Therefore, an appeal is now appropriate as to the determination not to permit the plaintiffs to recover on the verdict of $99,000. ⁶ We turn then to the propriety of allowing the motion for judgment notwithstanding the verdict of $99,000.

We have recognized that a trial judge has a range of discretion in land damage cases in admitting evidence of value based on a use of the land which requires a zoning change or other preliminary municipal authorization. An opinion of value founded on such a use has been held properly admissible where, "upon all the evidence in the case, the jury could warrantably find that a willing...