Wolff v. Commonwealth of Puerto Rico

• Citation: 341 F.2d 945
• Decision Date: 05 March 1965
• Docket Number: No. 6351.,6351.
• Parties: Max WOLFF et al., Claimants, Appellants, v. The COMMONWEALTH OF PUERTO RICO, etc., Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

341 F.2d 945 (1965)

Max WOLFF et al., Claimants, Appellants, v. The COMMONWEALTH OF PUERTO RICO, etc., Appellee.

No. 6351.

United States Court of Appeals First Circuit.

Heard February 3, 1965.

Decided March 5, 1965.

A. Castro Fernandez, San Juan, P. R., with whom Castro & Castro, San Juan, P. R., was on brief, for appellants.

Nilita Vientos Gaston, Asst. Sol. Gen., with whom Rodolfo Cruz Contreras, Acting Solicitor Gen., was on brief, for appellee.

Before ALDRICH, Chief Judge, MARIS,^* Circuit Judge, and FORD, District Judge.

ALDRICH, Chief Judge.

This is an action to assess damages for the condemnation of a piece of unimproved land in Caguas, Puerto Rico, taken by the Commonwealth. The owners removed the case to the United States district court and, following a jury verdict which they believe insufficient, they appeal. On a review of the record we find most of the difficulties to be of an evidentiary nature due to an overstrictness on the part of the court with respect to the zoning classification of the locus.¹ At the date of condemnation the locus was classified as "M." "M" means that no construction of buildings may be undertaken until application has been made to the Planning Board and permission, and a changed classification, obtained. "M" was not, however, a static classification." As the Commonwealth's own witness agreed, the "regulations contemplate that anything, any piece of property which has been classified `M' will be eventually changed to some other classification." The court, however, adopted the Commonwealth's theory that whatever might have happened in the future had there been no taking, was "sheer speculation," and excluded all evidence bearing on the possibility of change, including the likelihood that the Planning Board would have reclassified. This was error.²

The highest and best possible use of property is not confined to the use at the time of taking. Neither is it confined by the zoning at the time of the taking, if there is a reasonable possibility that there may be a re-zoning.³ Indeed, clear indication that the settled weight of authority is contrary to the Commonwealth's position is quoted in the Commonwealth's own brief.

"When `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 likelihood may be considered if the prospect of such repeal or amendment is sufficiently likely as to have an appreciable influence upon present market value. It follows from the foregoing that such possible change in the zoning regulations must not be remote or speculative.\' Nichols on Eminent Domain, 3rd ed., Vol. 4, sect. 12.322, pages 238-243."

See also, e. g., Rapid Transit Co. v. United States, 10 Cir., 1961, 295 F.2d 465, 466, cert. den. 369 U.S. 819, 82 S.Ct. 831, 7 L.Ed.2d 785; United States v. Meadow Brook Club, 2 Cir., 1958, 259 F.2d 41, 45, cert. den. 358 U.S. 921, 79 S.Ct. 290, 3 L.Ed.2d 239; Snyder v. Commonwealth, 1963, 412 Pa. 15, 192 A.2d 650; State Roads Commission v. Warriner, 1957, 211 Md. 480, 128 A.2d 248. Appellants should have been permitted to prove the reasonable possibility of a better use for the purpose of showing its effect upon fair market value. The Commonwealth's contention that the "M" classification was an "inescapable fact" was peculiarly inappropriate when, concededly, it was one that contemplated change.

We must deal separately with one piece of evidence on this subject that the court excluded. The letter from the chairman of the Planning Board to the effect that the Board had approved a re-classification was not itself a formal approval. Nor was it the best evidence of such.⁴ On the other hand, assuming proper proof of signature, etc., it was some evidence, as an overt expression, of the views of the chairman, and possibly admissible as such. Cf. Wigmore, Evidence, § 1731. If the letter is re-offered for that limited purpose, the court should reconsider the question in the light of the record as it then exists.

Next, appellants offered to show that prior to the condemnation the locus had been contracted to be sold at a high price, conditioned upon obtaining a new classification. The court excluded the evidence. The Commonwealth's description of this transaction as "incontestably" an option is quite erroneous. If the owners had succeeded in obtaining the change the buyer had no option, but stood committed. The purchase and sale agreement was dated September 12, 1962 and the date for performance was April 12, 1963. The condemnation occurred February 11, 1963, voiding the agreement because, inter alia, as the Commonwealth's own witness...