Roach v. Newton Redevelopment Authority

• Decision Date: 06 November 1979
• Citation: 8 Mass.App.Ct. 618,396 N.E.2d 170
• Court: Appeals Court of Massachusetts
• Parties: Martin J. ROACH v. NEWTON REDEVELOPMENT AUTHORITY (and a companion case between the same parties).

Page 170

396 N.E.2d 170

8 Mass.App.Ct. 618

Martin J. ROACH

v.

NEWTON REDEVELOPMENT AUTHORITY (and a companion case between the same parties).

Appeals Court of Massachusetts, Middlesex.

Argued Sept. 13, 1979.

Decided Nov. 6, 1979.

Philip M. Cronin, Boston, for defendant.

Robert Cohen, Boston, for plaintiff.

Before BROWN, GREANEY and PERRETTA, JJ.

GREANEY, Justice.

Following takings of his land by the defendant on May 13, 1969, and December 15, 1970, ¹ the plaintiff filed petitions for assessment of damages. G.L. c. 79, § 14. The petitions were tried to a Superior Court judge without a jury and thereafter before a Superior Court judge without a jury. ² G.L. c. 79, § 22, appearing in St. 1973, c. 983, § 1. At both trials, the dominant issue concerned the probability that a private developer could obtain rezoning of the property from residential to commercial use. The plaintiff's proof at both proceedings was determined sufficient to permit the fact finder to assess the probability of rezoning on the issue of value. On appeal, the defendant claims that the admission in evidence of post-taking rezoning accomplished at the defendant's request flawed the judge's decision at the non-jury proceedings, and, in turn, vitiated the jury's verdict. Issues related to that question concern certain testimony by two of the plaintiff's witnesses. We affirm the judgments.

The evidence at both trials bearing on the rezoning question is summarized. The land taken consisted of seven parcels totalling 372,994 square feet in the Lower Falls section of Newton. The plaintiff acquired parcels 1 and 2 in 1957, parcel 3 in 1964, and parcels 4 through 7 in 1965. At the time of the takings all the land, with the exception of parcel 3, was zoned for single family residential use. ³

At the non-jury trial, the plaintiff, to support his contention that a private owner could obtain rezoning for commercial use (the construction of office buildings), introduced evidence that during his ownership he had assembled the lots, including landlocked back parcels with no access to a main street, as a package for development; that he had removed existing buildings; and that he had leveled a sizeable hill on the westerly portion of the land, leaving the whole site generally level and graded. All necessary utilities were proximate and available. Public transportation (on the M.B.T.A. line) and the Massachusetts Turnpike were nearby, and the site was close to the Route 16 (Washington Street) interchange with Route 128, the major circumferential highway surrounding Boston. There was evidence that there had been commercial development in the immediate vicinity much of which involved changes in zoning classifications by reason of the presence of Route 128. These included a service station and restaurant, a hotel, a motel, a nursing home and various office buildings. ⁴ The plaintiff also introduced evidence, through the 1963 Community Renewal Program Report for Newton, that the highest and best use of the vacant land located in the Lower Falls area adjacent to Route 128 was for development as a "prestige garden-type office development" ⁵ and, over the defendant's objection, evidence that some of the plaintiff's land had been rezoned after the takings for commercial uses on petitions filed by the defendant. The defendant presented evidence that it was unlikely that a private owner could obtain rezoning, because access to the land was handicapped by lack of good frontage on a major highway. ⁶ In response, the plaintiff provided evidence that implementation of one of the urban renewal plans for the site contemplated access to all the parcels by way of Waverly Place and that this means of access was available to the plaintiff. ⁷

Based essentially on this evidence, the judge at the non-jury proceedings found that the highest and best use of the plaintiff's land would be for business and commercial office use, that it was reasonably probable that a private developer could obtain a zone change to permit those uses, and that the defendant had obtained such a zone change and had utilized the land for commercial office space. ⁸ He assessed damages in the amount of $559,481.

At the jury trial, the findings from the non-jury case were introduced ⁹, and most of the evidence summarized above was repeated before the jury. To this was added evidence that about seven commercial zone changes in the immediate area had been allowed within a reasonable time prior to the taking, while about thirteen had been denied. There was additional expert testimony by witnesses for the defendant that a change in zone through private initiative was improbable. ¹⁰ The only other events of significance for our purposes consisted of the judge's exclusion of the plaintiff's offer of evidence regarding the land use trends contained in the Community Renewal Program Report and the offer of evidence concerning the post-taking rezoning. The judge took several measures in the course of the trial designed to sharpen the jury's focus on the zoning issue which will be discussed in part 2 of this opinion. The jury assessed damages in the amount of $1,186,101.

1. A landowner in an eminent domain action has the right to recover the market value of his property in light of the highest and best use to which the land could reasonably be put. Skyline Homes, Inc. v. Commonwealth, 362 Mass. 684, 685-686, 290 N.E.2d 160 (1972); Colonial Acres, Inc. v. No. Reading, 3 Mass.App. 384, 386, 331 N.E.2d 549 (1975). So long as the prohibited uses are not unduly speculative, the trier should consider them "with discounts for the likelihood of their being realized and for their futurity." Skyline Homes, Inc. v. Commonwealth, supra, 362 Mass. at 686, 290 N.E.2d at 162, and authorities cited. 4 Nichols, Eminent Domain § 12.314 n. 1 (Rev. 3d ed. 1978). Compare Tigar v. Mystic River Bridge Authy., 329 Mass. 514, 518-519, 109 N.E.2d 148 (1952). The fact that a potential use is prohibited by the zoning law at the time of the taking does not preclude its consideration. Wenton v. Commonwealth, 335 Mass. 78, 81-82, 138 N.E.2d 609 (1956). Lee v. Commonwealth, 361 Mass. 864, 281 N.E.2d 239 (1972). 4 Nichols, Supra § 12.322(1), and authorities cited in n. 6 at 12-637 12-649. The probability of such rezoning is a matter of proof, and "the judge has a margin of ultimate discretion in deciding whether the proof has gone far enough" to warrant consideration of the issue by the trier. Skyline Homes, Inc. v. Commonwealth, supra, 362 Mass. at 687, 290 N.E.2d 160, and authorities cited. We are satisfied that the evidence at both trials concerning the probability that a private developer could obtain a rezoning, apart from the disputed evidence, went sufficiently beyond a bare unfounded hypothesis to permit the judges to exercise their discretion to allow consideration of the issue on the question of value. There was proof that the land had certain characteristics which made it suitable for commercial use, such as its generally favorable contours, location near major highways, non-adverse soil conditions, and contiguity with Route 128. The facts that the owner had assembled the land over a period of time and that the purchase of parcels 4, 5, 6 and 7 in 1965 provided direct access to Washington Street for the previously isolated rear parcels were important, as was the fact that the site, because of its location and surrounding development, could be considered unfit for residential use within the zoning categories and land use patterns which existed at the time of the takings. Moreover, there was evidence at both trials of considerable commercial development nearby, stemming from the presence of Route 128, some of which had required and received zoning action. This type of proof has been recognized as sufficient to permit a judge in his discretion to allow the prospect of a zone change to be considered as bearing on value. See Skyline Homes, Inc. v. Commonwealth, supra at 688, 290 N.E.2d 160, and cases cited. There also was evidence at the non-jury trial concerning programmatic land use plans that projected commercial uses for the general area where the plaintiff's land was located. This type of evidence has also been recognized as having an important bearing on the issue. ¹¹ Id. at 688, 290 N.E.2d 160. There thus was a sufficient evidentiary linkage between the owner's goals which were barred by the land's zoning and the reasonable prospect of change to take the proof beyond that of a speculative showing that the land was suitable to a given use which was prohibited by law.

2. We next turn to the question of the admission at the non-jury trial of evidence that after the taking the defendant had petitioned for, and received, a change in the zoning classification of the land. The evidence came in through testimony that the land had been rezoned for commercial and limited industrial use, ¹² through the introduction of three exhibits reflecting the defendant's petitions for a change of zone and favorable aldermanic votes thereon. The judge made it clear when he admitted the evidence that he considered it to be cumulative of other evidence already before him or promised as to a probability of rezoning.

As a general rule, an actual change in zoning which takes place as a result of the project for which the property is taken should not be taken into account in valuing the property in a land damage proceeding. 4 Nichols, Supra § 12.322(1), and authorities cited in n. 7.1 at 12-655 12-656. See also Williams v. City & County of Denver, 147 Colo. 195, 200-202, 363 P.2d 171 (1961); State v. Kruger, 77 Wash.2d 105, 459 P.2d 648 (1969); Annot. 9 A.L.R.3d 291, 320-323 (1966). Although no Massachusetts decision has been brought to our attention, the logic of decisions close in point inescapably demonstrates that we would follow the rule. See May v. Boston, 158 Mass. 21, 29, 32 N.E. 902 (1893) ("It was evidently the purpose of the...