Dennis v. City Council of Greenville

• Decision Date: 01 December 1994
• Docket Number: No. 91-CA-0492,91-CA-0492
• Parties: J. Rosco DENNIS, Jr., and Marie Dennis Key v. The CITY COUNCIL OF GREENVILLE, Mississippi.
• Court: Mississippi Supreme Court

Page 1290

646 So.2d 1290

J. Rosco DENNIS, Jr., and Marie Dennis Key v. The CITY COUNCIL OF GREENVILLE, Mississippi.

No. 91-CA-0492.

Supreme Court of Mississippi.

Dec. 1, 1994.

Stephen L. Thomas, Jenny M. Virden, Lake Tindall Hunger & Thackston, Greenville, for appellants.

G. Kenner Ellis, Jr., Greenville, for appellee.

En Banc.

DAN M. LEE, Presiding Justice, for the Court:

This appeal arises from an eminent domain proceeding brought by the City of Greenville to acquire 5.515 acres of a 70-acre tract for the construction of a detention basin and pumping station. The lower court excluded evidence of the landowners' experts relating to comparable sales of property supporting an appraised value based upon use of the property in the manner for which it had been zoned by the City of Greenville, while admitting into evidence an appraisal based upon a use of the property in a manner inconsistent with its present zoning, but as if re-zoning were an accomplished fact. We reverse and remand.

I.

The condemned 5.515 acres are part of a 70-acre tract of undeveloped land owned by J. Rosco Dennis, Jr., and Marie Dennis Key. The property is located within the city limits of the City of Greenville, Mississippi ("City"), and was zoned R-2, single family residential. Following the procedure set forth in Miss. Code Ann. Sec. 11-27-7 (1972), the City filed a statement of values setting the fair market value of the condemned 5.515 acres at $11,600.00, and zero for damages to the remaining 64.5 acres, for total compensation of $11,600.00. The landowners filed their statement of values which set the fair market value of the condemned 5.515 acres at $68,937.50, and set damages to the remaining 64.5 acres at $1,000.00 per acre, for a total compensation due of $133,937.50. At the eminent domain hearing to establish just compensation, the trial judge refused to allow the landowners' evidence of sales of comparable property to be admitted into evidence, as well as certain expert testimony of the landowners' two appraisers regarding evaluation of the property. Instead, the trial judge admitted only the City's appraisal, which was supported by comparables, and, consequently, valued the total due at $11,600.00, based upon the evidence put forth by the City. No damages were awarded the landowners on the remaining 64.5 acres.

II.

By February 25, 1991, an order, based upon joint motion and stipulation, by the county judge of Washington County, sitting as a Special Court of Eminent Domain, awarded the City title and immediate possession of the condemned 5.515 acres. The order adjudicated that the City would "suffer irreparable harm" by delay and that the taking was in the public interest. A hearing "to establish the reasonable value of said property and the amount of damage" due the landowners was set for April 15, 1991.

The hearing began as scheduled on April 15, 1991. The City called witnesses, Michael McKenzie, its assistant city engineer, and John W. Young, an appraiser. The City placed Young's written appraisal into evidence. That appraisal estimated $11,581.00 to represent the difference in value before the taking and after the taking. Young's calculation was based solely upon the value of the 5.515 acre parcel taken, valued at $2,100.00 per acre, and he did not attribute any monetary damage to the remaining 64.5 acres after the taking of the 5.515 acres.

The landowners objected to the introduction of Young's appraisal on two grounds. First, the landowners objected to the appraisal and Young's testimony because he failed to apply the "before and after" rule in valuing the entire 70-acre tract. ¹

Second, the landowners also objected on grounds that Young, in applying the market approach method of appraisal, used as three comparable sales, land transactions involving agricultural lands, all lying outside the city limits, and some as far away as eleven miles. Young contended that the use of those comparables was appropriate because he determined that the "highest and best use" of the condemned acreage was for agricultural purposes.

Landowners argued that the 70 acres were located inside the city limits and were zoned R-2, for single family residential usage, not agricultural purposes. Landowners offered the testimony of appraisers, Gerald Abraham and Anson Sheldon, who testified that the highest and best use of the property was the use for which the City had previously zoned the property--use for single family residential dwellings. The landowners attempted to demonstrate, through the expert testimony of its two appraisers, that if the subject property were developed into residential lots to be put on the market for single family residential dwellings, the lots would sell. Therefore, according to the landowners' appraisers, just compensation for the 5.515 acres was $68,937.50, and the remaining 64.5 acres would be damaged in the amount of $1,000.00 per acre, for a total of $133,937.50.

In support of their valuation, the landowners' appraisers testified as to sales of other property which they contended represented comparable sales. However, the trial judge rejected that evidence of comparable sales, sustaining the City's objection to those comparables, thereby precluding the landowners from making a showing of just compensation and damages, as demonstrated below:

BY MR. ELLIS [Counsel for City]: Your Honor, at this point we would object to any comparables--the introduction of any sales price with respect to the comparables referred to by the witness. They are remote and distant and simply no similarity between the area referred to as far as development is concerned--it's some two and a half--three miles from the subject location. One tract is seventy acres in size and the other is a residential lot of one acre in size. We simply fail to find sufficient similarity to warrant the fees being used as comparables in this case.

BY THE COURT: Mr. Thomas?

BY MR. THOMAS [Counsel for landowners]: Well, I think the witness makes appropriate adjustments for those same things Mr. Ellis has stated. I know [sic] with some interest that the City's comparables--two of them are there in Leland--none of them are as close as any of this--this is the most comparable--none of them are R2 property. This is--these are the closest R2 sales to this property that there are.

....

BY THE COURT: All right. The Court has some problems with these comparables. Certainly, these are in developed areas. We are talking about a portion of the seventy acre [sic] undeveloped tract. It's the Court's opinion that there's not sufficient similarity to allow them as comparables. I'm going to sustain the objection.

Nevertheless, the trial judge allowed the landowners to make a record of the contended comparable sales and the landowners later re-offered the testimony of appraiser Abraham. That offer was met with an objection by the City, which the lower court sustained.

BY MR. THOMAS: Your Honor, I would like to re-offer Mr. Abraham's testimony on the other comparable sales subject to his making appropriate adjustments. Under the City's theory, there are no comparables in the City of Greenville because that is the only undeveloped tract there is left. It's the only R2 tract left in Greenville.

....

BY THE COURT: All right. I'm going to sustain the objection.

The landowners also attempted to offer proof of damages to the remaining 64.5 acres. According to the landowners, if the land were developed for the highest and best use, residential purposes, problems with mosquitos, seepage, and snakes would be encountered because of the water in the detention basin. The landowners also argued that the excessive noise that would be generated by the pumps which the City planned to install would be a detriment to sales of lots.

The Court took the matter under advisement and entered its order on April 30, 1991. In that order, the trial judge accepted the City's valuation, and ordered the City to pay the landowners $11,600.00, concluding as follows:

The owners offered substantial testimony as to the highest and best use of the subject property being single family residences. The testimony of the Owners' experts centered solely on the development of this property into a residential single family dwelling subdivision.... This position is based upon rank speculation. ...

On the evidence before the Court, it is bound to accept the valuation made by Mr. John W. Young, there being no testimony, not speculative in nature, in opposition to it.

(emphasis added).

Landowners contend that the following assignments of error require reversal:

A. The trial court erroneously refused to consider the valuation of defendants' appraisers.

B. The trial court erred in finding the appraisal offered by the City of Greenville was prepared following acceptable guidelines for establishing the value of the property subject to eminent domain proceedings when: (1) the City never appraised the value of the entire 70-acre tract before and after the taking of a small part of it; (2) the appraisal included no award of damages [for the remainder]; and (3) the appraisal was premised on the conclusion that the property's highest and best use was for agricultural purposes, which was contrary to the overwhelming weight of the evidence.

After consideration of the first assignment of error, we conclude that the case sub judice should be reversed and remanded.

III.

THE TRIAL COURT ERRONEOUSLY REFUSED TO CONSIDER THE VALUATION OF DEFENDANTS' APPRAISERS.

On appeal, the landowners do not challenge the authority of the City to condemn the property. However, the trial court's failure to admit evidence of comparables which would support the landowners' appraiser's opinion regarding valuation is contested.

Once admitted into evidence, the court, as fact-finder, could accept or reject the evidence of comparables in resolving the issues. But, in the case sub judice, the trial court, by not allowing the...