Stark v. Poudre School Dist. R-1

• Decision Date: 31 January 1977
• Docket Number: R--1,No. C--699,C--699
• Citation: 560 P.2d 77,192 Colo. 396
• Parties: Lee A. STARK and G. D. McGarvey, Petitioners, v. POUDRE SCHOOL DISTRICT, a body corporate, Respondent.
• Court: Colorado Supreme Court

Page 77

560 P.2d 77

192 Colo. 396

Lee A. STARK and G. D. McGarvey, Petitioners, v. POUDRE SCHOOL DISTRICT R--1, a body corporate, Respondent.

No. C--699.

Supreme Court of Colorado, En Banc.

Jan. 31, 1977.

Fischer & Wilmarth, Gene E. Fischer, G. William Beardslee, Fort Collins, for petitioners.

Harden & Napheys, B. F. Napheys III, Ralph B. Harden, Fort Collins, for respondent.

ERICKSON, Justice.

We granted certiorari to review Poudre School District v. Stark, 35 Colo.App. 363, 536 P.2d 832 (1975). We reverse and remand with directions that the order be set aside and a redetermination made in light of the principles and directives articulated in this opinion.

In 1972, the Poudre School District commenced an eminent domain proceeding to acquire a nine-acre tract in the City of Fort Collins. See Colo. Const. Art. II, Sec. 15; section 123--10--2, C.R.S.1963. Prior to trial, a hearing was held to determine the propriety of presenting evidence to the commission regarding the probability of rezoning the property. The trial court ruled that the evidence was inadmissible, based upon an insufficient foundation to show the probability of rezoning. In a motion for a new trial, the condemnee submitted affidavits alleging misconduct by the commissioners in making an independent investigation and determination of value which was not based upon the evidence.

I. Opinion Evidence of the Probability of Rezoning

At the conclusion of the In limine hearing, the trial court ruled that insufficient evidence had been presented to establish the probability of rezoning and that, therefore, the condemnee would not be allowed to present evidence of such probabilities to the commission. The court of appeals, in affirming, simply noted that the trial court had not abused its 'considerable discretion in determining the sufficiency of the evidence to establish a reasonable probability of a zoning change occurring within a reasonable time.'

The condemnee offered expert testimony as to the probability of rezoning this particular property, based upon the expert's evaluation of prior rezoning trends for similar properties in Fort Collins. The trial court refused to hear the testimony. It sustained the school district'sobjection that '(t)here isn't any such thing as an expert witness on what a zoning board or a city council is going to do. There isn't any training for it. There isn't any experience that can assist in this.' While we recognize the broad discretion vested in the trial court in considering the qualifications of an expert and the admissibility of expert opinion, we find that the record clearly reflects an erroneous legal test as the basis for the court's ruling.

The rule is clear in this jurisdiction that the probability of rezoning may be considered by the commissioners Insofar as it would reasonably be reflected in present market value. However, a totally speculative or conjectural estimate of future use of property would not and should not be reflected in the determination of the property's present value. Accordingly, unless the evidence relating to the likelihood of rezoning rises to the level of a probability, it is inadmissible in a condemnation proceeding. The role of the commission is simply to determine the true market value. As we said in Department of Highways v. Schuloff, 167 Colo. 72, 445 P.2d 402 (1972):

'The jury (or commission) are to determine and allow the present fair, cash market value at the time of the trial, and are not to allow for any speculative or prospective values. In determining the present cash value the most advantageous use to which the property May reasonably be applied may be considered. Any reasonable future use to which the land may be adapted or applied by men of ordinary prudence and judgment may be considered in so far only as it may assist the jury in arriving at the present market value. The owner is entitled to have considered the most advantageous use in the future to which the land may be reasonably applied, not with the view of allowing him . . . speculative or prospective damages or values, but only as such evidence may bear upon or affect or assist in arriving at the present market value.' (Emphasis added.)

Department of Highways v. Schuloff, supra, quoting Wassenich v. City of Denver, 67 Colo. 456, 186 P. 533 (1919); Accord Morgan v. City of Overland Park, 207 Kan. 188, 483 P.2d 1079 (1971); Masheter v. Mariemont, Inc., 36 Ohio App.2d 78, 302 N.E.2d 583 (1971); State ex rel. State Highway Commission v. Carlson, 463 S.W.2d 74 (Mo.App.1970) ; Sunland Supply Co. v. State, 392...