MARTIN J. ROACH vs. NEWTON REDEVELOPMENT AUTHORITY (and a companion case between the same parties).

GREANEY, J. Following takings of his land by the defendant on May 13, 1969, and December 15, 1970, [Note 1] the plaintiff filed petitions for assessment of damages. G. L. c. 79, Section 14. The petitions were tried to a Superior Court judge without a jury and thereafter before a Superior Court judge with a jury. [Note 2] G. L. c. 79, Section 22, appearing in St. 1973, c. 983, Section 1. At both trials, the dominant issue

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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. [Note 3]

At the nonjury 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

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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. [Note 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" [Note 5]

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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. [Note 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. [Note 7]

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Based essentially on this evidence, the judge at the nonjury 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. [Note 8] He assessed damages in the amount of $559,481.

At the jury trial, the findings from the nonjury case were introduced, [Note 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. [Note 10] The only other

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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 (1972), Colonial Acres, Inc. v. North Reading, 3 Mass. App. Ct. 384, 386 (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 at 686, and authorities cited. 4 Nichols, Eminent Domain Section 12.314 n.1 (rev. 3d ed. 1978). Compare Tigar v. Mystic River Bridge Authy., 329 Mass. 514, 518-519 (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 (1956). Lee v. Commonwealth, 361 Mass. 864 (1972). 4 Nichols, supra Section 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 at 687, and authorities cited. We are satisfied that

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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, nonadverse 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, and cases cited. There also was evidence at the nonjury 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. [Note 11] Id. There thus was a sufficient evidentiary

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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 nonjury 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, [Note 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 Section 12.322[1], and authorities cited in n. 7.1 at 12-655 - 12-656. See also Williams v. Denver, 147 Colo. 195, 200-202 (1961); State v. Kruger, 77 Wash. 2d 105 (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 (1893) ("It was evidently the purpose of the Legislature not to permit landowners to recover damages for the land taken for a public use at a value enhanced by the public improvement which owes its existence to the change of use of the very land which is to be paid for"). To the same effect see Smith v. Commonwealth, 210 Mass. 259, 263 (1911); Cole v. Boston

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Edison Co., 338 Mass. 661, 665-666 (1959). See also Lipinski v. Lynn Redevelopment Authy., 355 Mass. 550, 553 (1969) (landowner cannot enhance the value of his land by evidence that it is to be taken by eminent domain); Colonial Acres, Inc. v. North Reading, 3 Mass. App. Ct. at 387 (evidence of a special permit issued to the town prior to the taking was not probative that such a permit would be issued to a private landowner). But apart from the foregoing rules, it is also recognized that a change in zoning subsequent to the taking which permits the previously prohibited use is significant evidence of the existence at the time of the taking of a reasonable probability of change (4 Nichols, supra Section 12.322[2], at 12-670 -- 12-672), and that, in cases of the type under consideration, "care must be taken to distinguish between availability for public use which constitutes availability even in private hands and availability which is peculiar to the government." Id. Section 12.315, at 12-403 -- 12-410, and authorities cited. See also Teele v. Boston, 165 Mass. 88, 92 (1896); Holyhood Cemetery Assn. v. Brookline, 215 Mass. 255, 256-257 (1913).

The critical question in this case is whether the judge at the nonjury proceeding could reasonably find that there was a likelihood that a private developer, as well as the taking authority, could have obtained the rezoning. If this was so, then the subsequent change of zone was not solely or primarily due to the talents or political leverage of the taking authority or the specific characteristics of its project, and the judges at both trials would possess a margin of discretion in deciding whether to admit or exclude the evidence as additional proof of a reasonable prospect of change bearing on value.

We conclude, based on all of the evidence discussed in part 1 of this opinion, that the proof had advanced to the point where the judge at the nonjury proceedings could exercise his discretion to admit and consider the evidence. We also think in particular that the fact that the agency had prepared a plan which had been approved by

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the aldermen, and which contemplated access to the proposed project through the existing roads, including Waverly Place, was of some importance. This fact could have been relied upon by the judge as justifying admission and consideration of the evidence, in light of the defendant's evidence that lack of access was the principal reason making it unlikely that a private developer could obtain a zone change. The defendant's argument concerning the judge's ruling and treatment of the evidence fails to acknowledge this state of the proof, the existence of the exception to the general rule, and the range of the judge's discretion on the subject.

Moreover, the judge's treatment of the issue at the jury trial constitutes an independent basis for upholding the verdict. At that trial, all evidence directly or indirectly concerning the defendant's rezoning efforts was excluded, including the land use goals contained in the Community Renewal Program Report. [Note 13] The issue as to probability of rezoning was submitted to the jury by way of a special question. [Note 14] The judge's instructions on the issue cover thirteen transcript pages and discuss all aspects of the law on the topic. The evidentiary effect of the findings made in the non-jury case was principally dealt with in the course of the instructions on the zoning question and in a manner which had the effect of confining the jury's attention to the findings concerning the probability of rezoning by a private owner. [Note 15] No reference

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was made in the course of the instructions to the disputed finding on the defendant's rezoning and the jury were instructed in clear terms that they could not take into account on the issue of the reasonable probability of rezoning any activity pertaining to the defendant's urban renewal project. [Note 16] The defendant did not object to any portion of the instructions on the zoning question or

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to the instructions on the weight to be given to the findings in the nonjury proceedings.

In our opinion, the precise and unequivocal instructions of the judge in effect excised from the case the disputed finding in the nonjury decision. The charge confined the jury specifically to the question of probable rezoning as developed by the proof at the trial. We also think the defendant was under an obligation to object to the charge if it was dissatisfied by the treatment of the issue. We therefore assume that the jury confined itself to the issue in the special question in light of the evidence at the trial, and that they were not confused, misled, or inflamed in any respect by the nonjury findings. [Note 17] Marlboro Bldg. Assn. v. American Broaching Mach. Co., 234 Mass. 506, 509 (1920). Saragan v. Bousquet, 322 Mass. 14, 20 (1947). DiIorio v. Tipaldi, 4 Mass. App. Ct. 640, 646-647 (1976).

3. The defendant also objected to certain rulings made by the judge at the jury trial with reference to the testimony of the plaintiff's expert as to value and the testimony of a second witness as to two of the financial aspects of comparable sales.

Bernard Singer, a qualified real estate appraiser, testified for the plaintiff and rendered an opinion that the fair market value of the land at the time of the taking was $1,300,872. In the course of his testimony, he was questioned as to his consideration of the zoning factor in formulating his opinion of value, and he expressed the opinion that there was "a certainty of rezoning for this particular land . . . though we use the technical term `a probability of rezoning.'" No objection was made by the defendant to the form of the opinion. He was extensively

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cross-examined [Note 18] and in the course of the cross-examination again stated that "a buyer who buys this property is going to know that this property is going to be rezoned business." At the conclusion of his testimony, the defendant moved to strike Singer's opinion. The motion was denied. The defendant contends that Singer's testimony should have been struck because his evaluation of the property considered the rezoning as an accomplished fact. See H.E. Fletcher Co. v. Commonwealth, 350 Mass. 316, 323-324 (1966); United States v. Meadow Brook Club, 259 F.2d 41, 45 (2d Cir.), cert. denied, 358 U.S. 921 (1958) ("It would be improper to value the property as if it were actually being used for the more valuable purpose"). See also 4 Nichols, supra Section 12.322[1] at 12-657.

The motion was properly denied. An examination of Singer's entire testimony reveals that he did not improperly base his opinion as to value on an assumption that the land had already been zoned to a higher classification. His opinion took into consideration his estimation that the highest and best use of the land would be for commercial development, and the opinion was predicated upon the existing residential zoning as affected by a reasonable probability of a zone change. Furthermore, his opinion considered the zoning factor in light of all the evidence that illuminated the prospect for a change and was based on the correct legal assumption that that prospect might be taken into account by a willing buyer in the price he would pay for the land. Skyline Homes, Inc. v. Commonwealth, 362 Mass. at 686-687. [Note 19]

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Singer also testified that, in arriving at his opinion, he relied on sales of land at 19 and 20 Walnut Street in Wellesley that were geographically proximate to the plaintiff's land. Edward Stimson, an associate with the Walnut Street Trust, was called by the plaintiff and testified that the trust had purchased both parcels for prices of $4.74 and $4.04 a square foot, respectively. The defendant objected to the introduction of the sale prices for both parcels on the basis that the sites were in Wellesley and were zoned commercial. The judge admitted the evidence. There was no abuse of discretion. Sufficient evidence of comparability existed to establish a foundation for consideration of the evidence, and "there should be no hard and fast rule that a difference in zones in and of itself renders such evidence inadmissible." Gregori v. Springfield, 348 Mass. 395, 397 (1965). Leen v. Assessors of Boston, 345 Mass. 494, 506-507 (1963). See also Boyd v. Lawrence Redevelopment Authy., 348 Mass. 83, 85-86 (1964) (discretionary admissibility of sales in a different town). The judge's instructions when the evidence was introduced also kept the jury's consideration of it in bounds, and eliminated the potential for confusion. [Note 20] Its admission fell within the familiar principles

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governing the admissibility of evidence concerning other sales in eminent domain cases. See Congregation of the Mission of St. Vincent de Paul v. Commonwealth, 336 Mass. 357, 359 (1957), and cases cited.

Judgments affirmed.