Recreation & Park Commission for the Parish of East Baton Rouge v. Drago

247 So. 2d 908, 1971 La. App. LEXIS 6300
CourtLouisiana Court of Appeal
DecidedApril 19, 1971
DocketNo. 8318
StatusPublished
Cited by6 cases

This text of 247 So. 2d 908 (Recreation & Park Commission for the Parish of East Baton Rouge v. Drago) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Recreation & Park Commission for the Parish of East Baton Rouge v. Drago, 247 So. 2d 908, 1971 La. App. LEXIS 6300 (La. Ct. App. 1971).

Opinion

TUCKER, Judge:

This is an expropriation proceeding in which the Recreation and Park Commission for the Parish of East Baton Rouge seeks to expropriate a 5.53 acre tract of land owned by the defendants, Vincent Drago, et al., situated between Ford and Cadillac Streets in the City of Baton Rouge, Louisiana, for the purpose of a neighborhood park.

Although the taking itself was contested in the lower court, the sole issue on appeal is the value of the land. The lower court judge found the value of the land to be $6,752.00 per acre, and set the fair market value of the whole tract at $37,350.00. From this judgment the Recreation and Park Commission appeals, urging that the lower court erred in not finding the value of the land to be $4,901.00 per acre as recited in the recorded act of sale for the adjacent piece of property, and in appraising the land and finding it in demand as a site for multiple family dwellings. Defendants Drago, et al., answered the appeal asking that the fair market value of the land be maintained as found by the trial court judge, on the basis of the tracts being presently in demand as a multiple family dwelling site.

In arriving at the highest and best use of the property being expropriated, and the fair market v^lue thereof, the lower court used as a comparable the most recent sale of a 13.97 acre adjacent tract sold by the same owners on October 9, 1969. This was the comparable used by three of the four appraisers as being entitled to greater weight and requiring less adjustment than the other tracts which they examined. This larger tract was sold for use as a multiple family dwelling project to provide low cost housing for racially mixed neighborhoods under a federal program known as H.U.D. financing. In that portion of the judgment which is not being appealed and is no longer at issue here, the lower court granted expropriation to the plaintiff of the said 5.53 acre tract, which, prior to the judgment of expropriation, was owned by these defendants, to be used by the residents of the multiple family project being constructed on the 13.97 acre tract, as a recreation area, with testimony having been adduced to the effect that a recreation and park area was badly needed for such a housing project. (See Tr. 57 — the testimony of Leroy J. Cobb that the highest and best use of the subject property was for the purpose of a park and recreation area).

The price recited in the deed of October 9, 1969 from Vincent Drago, et al. to Zion City Housing Company, Inc. covering the 13.97 acre tract was $4,901.00 per acre. The evidence reflected, however, that the witness, Hal McCullough, who negotiated the sale of the property charged a commission and a fee for his efforts in checking the sewer and utility connections, ingress, egress and in preparing the property for H.U.D. acceptance the sum of $1,000.00 per acre or the total sum of $13,000.00. The trial court held that the total price paid by Zion City, including the Me-[910]*910Cullough charges, when rounded off, was $6,000.00 per acre for the 13.97 acres, rather than the consideration recited in the deed of $4,901.00 per acre.

Plaintiff’s appraiser, Leroy J. Cobb, who figured the total value of the subject tract at $21,700.00 or $3930.00 per acre, did not know about the extra $13,000.00 paid to Mr. McCullough by Zion City for the comparable tract, and almost granted that had he known this fact, it would have been considered in his value estimate of the subject property, although there were other factors just as important in arriving at value, principally the essential inaccessibility of the subject tract and the zoning limitation (Tr. S3, 58).

One of the prime problems in establishing value on which the defendants focused considerable attention involved the extant zoning classification of A-2 assigned to subject property at the time of taking permitting single family units only, and the A-4 classification which would have allowed multi-family dwellings, the highest and best use to which the subject property could be put according to defendants’ appraisers. Before the sale of the comparable an application to rezone the whole tract was made to the Planning Commission of East Baton Rouge Parish, and approval of the change from A-2 to A-4 classification was secured, but in advance of presenting the application to the council for final approval and adoption, the 5.53 acre tract was deleted or withdrawn from the quest. The defendants contend the reason for withdrawal of the subject parcel was because they were unable to negotiate an acceptable price for this smaller tract. The two appraisers and several lay witnesses for the defendants, including one of the members of the Planning Commission, all testified in substance that a renewal of the application would almost certainly result in a change to the A-4 classification. The plaintiff witnesses, on the other hand, contended that the zoning ordinance permitted only single family units on property classified as A-2, and, to envision a change to an A-4 classification being accomplished would involve speculation and conjecture; in substance that the appraisers were faced with a zoning classification which did not permit multi-family dwellings, and, therefore, value should be fixed with due regard to the restrictions imposed by the zone classification.

Two witnesses stated they were ready to take an option on the subject property for $7,500.00 and $8,500.00 per acre conditioned upon the property being re-zoned from A-2 to A-4, and procurement of H. U.D. approval. Defendants claim that the filing of this suit stalled further negotiations along this line.

The cases are legion which hold that in the order to ascribe a certain purpose as constituting the highest and best use to which property being condemned may be put, it must be shown that such use is “reasonably prospective”; “reasonably possible”; “reasonably probable”; or “reasonably certain”. This potential use must be reasonably prospective and removed from the realm of guesswork, speculation and conjecture. See State Through the Department of Highways v. Brooks, La.App., 152 So.2d 637 (1963) and Central La. Elec. Co. v. Harang, La.App., 131 So.2d 398 (1961), and many other kindred cases.

The aforementioned quoted descriptive adjectives seem to be used interchangeably. The trial judge appears to have given considerable weight in determining the influence of the zoning classification to the ruling in the case of City of Monroe v. Nastasi, 175 So.2d 681 (La.App.2d Cir., 1965) which holds that, while serious consideration must be given to the effect of existing zoning regulations, precluding multiple residence use, before a basis of valuation for commercial use is accepted, where there is no indication of a bar to the necessary change of such classification and in view of the fact the change for the adjoining property had been accomplished without difficulty, the restrictions with respect to the zoning classification would have to [911]*911yield to the higher value attributable to commercial use especially where the evidence preponderated to the effect that the changes needed to be made were “reasonably possible”. The case of City of Monroe v. Carso, 179 So.2d 696 (La.App.2d Cir. 1965) follows the precept and rationale expressed in the Nastasi case.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

West Jefferson Levee D. v. Coast Quality
640 So. 2d 1258 (Supreme Court of Louisiana, 1994)
STATE, DEPT. OF TRANSP. AND DEVELOPMENT v. Davis
394 So. 2d 641 (Louisiana Court of Appeal, 1980)
State ex rel. Department of Highways v. James
321 So. 2d 888 (Louisiana Court of Appeal, 1975)
Parish of East Baton Rouge v. Cantu
321 So. 2d 902 (Louisiana Court of Appeal, 1975)
STATE, DEPT. OF HWYS. v. St. Tammany Homestead Ass'n
304 So. 2d 765 (Louisiana Court of Appeal, 1975)
Recreation & Park Commission v. Drago
252 So. 2d 452 (Supreme Court of Louisiana, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
247 So. 2d 908, 1971 La. App. LEXIS 6300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/recreation-park-commission-for-the-parish-of-east-baton-rouge-v-drago-lactapp-1971.