Moschetti v. City of Tucson

• Decision Date: 17 January 1969
• Docket Number: No. 2,CA-CIV,2
• Citation: 449 P.2d 945,9 Ariz.App. 108
• Parties: Henry L. MOSCHETTI, Appellant, v. The CITY OF TUCSON, a municipal corporation, Appellee. 552.
• Court: Arizona Court of Appeals

Page 945

449 P.2d 945

9 Ariz.App. 108

Henry L. MOSCHETTI, Appellant, v. The CITY OF TUCSON, a municipal corporation, Appellee.

No. 2 CA-CIV 552.

Court of Appeals of Arizona.

Jan. 17, 1969.

Rehearing Denied March 12, 1969.

Dunseath, Stubbs & Burch, by Robert C. Stubbs, Tucson, for appellant.

Dino DeConcini, City Atty., Tucson, Stanley G. Feldman, Tucson, Special Counsel for City of Tucson, and James C. Carruth, Tucson, for appellee.

MOLLOY, Chief Judge.

The critical issue in this eminent domain proceeding is whether the trial judge properly refused to permit expert testimony offered by the owner of residential property bordering on a major urban artery concerning the probability of a future rezoning of the land to include commercial uses, and the effect of the prospect of such a rezoning on the market value of the land at the time of taking.

Appellant owns two adjacent lots, irregularly shaped, each having 177 feet of frontage on the south side of Broadway Boulevard in the City of Tucson. There is a house on one lot; the other is vacant. The depth of the lots varies from 160 to 260 feet. The appellee, City of Tucson, commenced this action to condemn the northerly 20 feet of appellant's land for the purpose of widening Broadway from four lanes to six lanes. The date of the taking was September 6, 1966.

Appellant's two lots are located along the north edge of a subdivision known as Colonia Solana, which is one of the most desirable residential areas in the city. Deed restrictions applicable to appellant's lots, and nearly all of the other lots within Colonia Solana, limit use of the land to single family residences. These deed restrictions expire in 1978. All of the lots so restricted have been zoned 'R--1' by the City of Tucson, the designated classification for single family residences.

Broadway is one of the two most heavily traveled thoroughfares in Tucson. It extends from the central business district on the west side of the city to the rapidly developing and predominantly residential east side. It was estimated that some 30,000 cars pass by appellant's land daily. The El Con shopping center, the largest in Tucson outside of the central business district, is located on the north side of Broadway some 900 feet east of appellant's land. Colonia Solana is bordered on the west side by Country Club Drive, which is located three lots west of appellant's land. From Country Club Drive to the heart of the central business district, a distance of some three miles, the land bordering both sides of Broadway is largely zoned and used for commercial purposes. There is, in addition to the El Con shopping center, considerable commercial development along parts of Broadway for several miles east of appellant's land. No new residences have been built on land adjoining Broadway for several miles on either side of appellant's land since 1956. The record discloses a considerable number of instances in which residential land bordering on Broadway has been rezoned to permit its use for commercial purposes.

In 1959, Tucson city officials adopted a 'Master Plan for the City of Tucson,' prepared in conjunction with Pima County, by a joint City-County Planning Department. Included in the Master Plan is a 'General Land Use Plan,' for the City of Tucson and its environs. The latter is a projected and generalized scheme for the balanced and orderly development of the city, in which land is allocated to various uses. While it does not have the force of law, as does the present zoning ordinance, it is to be used as a guide for future zoning changes. On a map of projected uses contained within the General Land Use Plan, appellant's land is classified as commercial, and the land just east of appellant's, within Colonia Solana, is classified for multiple residential and 'other transitional' uses.

Appellant's theory in presenting his case was that the highest and best use of his land was for commercial purposes. Appellant sought to introduce testimony, through his expert appraiser, that a rezoning of this land to permit commercial uses was probable at least after the expiration date of the deed restrictions in 1978. Then, based upon that testimony, appellant sought to have his appraiser testify as to what a willing purchaser would pay for the land at the time of taking, giving a discounted effect to the probability that the land would be rezoned after the termination of the deed restrictions.

The appellee-city's theory was that the highest and best use of the land was for residential purposes, and that, in view of the deed restrictions, as well as the present zoning classification, any use of the land for commercial purposes was too remote and speculative to be taken into consideration. Appellee's expert appraiser did, however, admit making the following statement in a report to the city on the property under consideration:

'However, anyone interested in this portion of Broadway is aware of the fact that restrictions in Colonia Solana expire in 1978 and that the restrictions in (the subdivision north of Broadway) * * * expire in 1979. It appears from the market that purchases have been made in anticipation of the expiration of the restrictions and a possible rezoning and that long-time property owners are continuing to hold their property as the dates of restriction expiration near.'

The trial judge excluded the evidence offered by appellants, and held that they were confined to proving what the lots were worth for residential purposes, plus any premium that they could show as to commercial potential by sales of comparable residential property along Broadway. The case was tried on that basis, over appellant's strenuous objections. The jury returned a verdict awarding $2,500 for the lot on which the house was located, and $2,000 for the vacant lot. The figures were very close to the city appraiser's evaluation of the land taken, which was the lowest evaluation in evidence.

Appellant preliminarily contends that the deed restrictions were not admissible in evidence. The general tenor of the argument is that the deed restrictions were placed on the land to benefit Colonia Solana landowners, and not the city, and that their existence should not result in a reduction of the amount of compensation payable upon an involuntary taking of property. It is argued that only the Colonia Solana landowners had the right to enforce the restrictions, for their own benefit, and that consideration of the deed restrictions in a condemnation proceeding grants a 'windfall' to the condemnor.

While the argument has some force, we find ourselves in disagreement with appellant on this matter. Speaking generally, the availability of land for a prohibited use cannot be considered in determining its value in a condemnation proceeding. See, e.g., Gear v. City of Phoenix, 93 Ariz. 260, 263, 379 P.2d 972, 974 (1963). Private restrictions such as the deed restrictions in this case and public zoning restrictions on the same land are separately and independently enforceable in our courts. Murphey v. Gray, 84 Ariz. 299, 304, 327 P.2d 751, 754 (1958). The restrictions are enforceable on their face, and having acquired the land subject thereto, appellant is not in a position to insist that his land be valued as if the restrictions did not exist.

We find distinguishable situations in which the land sought to be condemned is part of a tract devoted to more specifically limited purposes, such as land held for a certain charitable purpose. See, in that connection, In re Appropriation of Easement for Highway Pur., 169 Ohio St. 291, 159 N.E.2d 612, 75 A.L.R.2d 1373 (1959), and the annotation commencing at 75 A.L.R.2d 1382. There are, on the other hand, authorities holding that private residential restrictions, similar to those involved in the present case, are to be considered in evaluating land to be taken by condemnation. Staninger v. Jacksonville Expressway Authority, Fla.App., 182 So.2d 483, 22 A.L.R.3d 950 (1966); State v. Reece, 374 S.W.2d 686 (Tex.Civ.App.1964); and see the annotation at 22 A.L.R.3d 961. We think their ruling on that question is sound.

In so holding, however, we do not mean to say that a condemnee is foreclosed from presenting evidence to the effect that the restrictions have been so disregarded as to be unenforceable, or that they are unenforceable for some other reason, or even that there is a likelihood that the owners of all of the land affected by the restrictions will take collective action effective to nullify the restrictions. It is at least conceivable that, in a proper case, the court might find private use restrictions unenforceable as a matter of law, thus allowing the trier of fact to consider the value of the land without regard to such restrictions. See, in this regard, the concurring opinion in Staninger v. Jacksonville Expressway Authority, supra.

In this case, however, there was no evidence presented tending to show that the deed restrictions were not enforceable or that they would not be enforced. We believe the trial judge was justified in concluding that an effective rezoning of the land and its use for commercial purposes was not possible until 1978.

However, this does not mean that the future of this land after 1978 has no place in this lawsuit. It is easy to understand how the trial judge arrived at a conclusion that the proffered testimony of appellant's appraiser was inadmissible. One of the most frequently cited statements of the pertinent law on this subject is found in 4 Nichols on Eminent Domain § 12.322(1), at 238--243 (3d ed. 1962), reading as follows:

'Where the enactment of the zoning restriction is not predicated upon the inherent evil of the proscribed use--in other words, where the forbidden use is Malum prohibitum rather than Malum in se--and there is a possibility or probability that the zoning restriction may In the near future be repealed or amended so as to permit the use in question, such...