Robles v. City of Tucson

491 P.2d 489, 16 Ariz. App. 100, 1971 Ariz. App. LEXIS 875
CourtCourt of Appeals of Arizona
DecidedDecember 9, 1971
DocketNo. 2 CA-CIV 941
StatusPublished
Cited by2 cases

This text of 491 P.2d 489 (Robles v. City of Tucson) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robles v. City of Tucson, 491 P.2d 489, 16 Ariz. App. 100, 1971 Ariz. App. LEXIS 875 (Ark. Ct. App. 1971).

Opinion

HATHAWAY, Judge.

Appellant owned two properties situated in the urban renewal area in the City of Tucson. Both properties were acquired through condemnation by the city in March 1968, for City Urban Renewal Project R-8. A previous urban renewal project, Project R-6, had been abandoned.

At the conclusion of the trial, the jury brought in a verdict valuing the north [101]*101property at $3.00 per square foot and the south parcel at $1.50 per square foot.1 Judgment was entered, a motion for new trial was made by appellant and was denied, and this appeal was filed.

Five questions are presented for review. The first, a multi-faceted question, centers on the admission of alleged comparable sales by the city taken from R-6 and R-8 areas, it being appellant’s position that comparable sales may not be used which have been depressed in price by the very project which required condemnation.

Appellant relies upon the general rule that property owners are not entitled to enhancement in their property value occasioned by the construction or in anticipation of the construction of the proposed project, 4 Nichols’ The Law of Eminent Domain § 12.3151 (3rd ed. rev. J. Sackman 1971) and the converse, that consideration should not be given to the effect of the taking in depressing the value. State v. Hollis, 93 Ariz. 200, 379 P.2d 750 (1963); Uvodich v. Arizona Board of Regents, 9 Ariz.App. 400, 453 P.2d 229 (1969) ; 4 Nichols’ The Law of Eminent Domain § 12.3151 (3rd ed. rev. J. Sackman 1971). Further, comparable sales that have been substantially enhanced or depressed in value because of the contemplated improvements are generally not admissible in evidence. City of Chicago v. Blanton, 15 Ill.2d 198, 154 N.E.2d 242 (1958) ; State Highway Commission v. Callahan, 242 Or. 551, 410 P.2d 818 (1966); State By Kobayashi v. Heirs of Kapahi, 48 Haw. 101, 395 P.2d 932 (1964) ; Socony Vacuum Oil Company v. State, 170 N.W.2d 378 (Iowa 1969) ; 5 Nichols’ The Law of Eminent Domain § 21.31 [2] (3rd ed. rev. J. Sackman 1969).

Appellant contends that the court erred in allowing the city to use comparable sales in the R-6 and R-8 areas in cross-examination of appellant’s expert witness and as the basis for evaluation by their expert. Appellant sets forth the following testimony elicited from the city’s appraiser, Mr. Sanders K. Solot, as showing that he had considered comparable sales which had been depressed by the urban renewal project:

“Q Did you, in valuing the subject property, give impact to adverse effects upon the subject property brought about by publicity and actions of the City of Tucson concerning these urban renewal proj ects ?
A Certainly, my sales reflected all these things, good things and bad things. They aided me in my opinion, they are comparable sales.”

Mr. Solot testified he did, in fact, use some sales in the R-6 and R-8 areas. He further testified, however, that the urban renewal area was a slum area prior to any announcement of the proposed projects; that in his opinion land values in the area were not depressed because of the announcement; and, that even if there had been no urban renewal, values in the area would have been just as depressed because of the blighted condition of the neighborhood. He pointed out other downtown areas which were blighted and depressed in value even though they were never included in the urban renewal area.

Appellant’s expert, Mrs. Ruth Oaks, testified that she did not use sales in the R-6 and R-8 areas as comparables because, in her opinion, these sales had been substantially depressed in value because of the contemplated urban renewal projects. The rule in Arizona is that property cannot be charged with a lesser value at the time of taking when the decrease in value is occasioned by reason of the taking itself. State v. Hollis, supra; Uvodich v. Arizona Board of Regents, supra. The goal is to assure the property owner of just compensation as contemplated by the Arizona Constitution. See Ariz.Const. art. 2, § 17, A.R.S.

We are faced with a conflict of expert opinion as to whether the “comparable sales” were in fact depressed by the proposed projects. Appellant urges this court [102]*102to hold as a matter of law there is a conclusive presumption that sales in an urban renewal area are depressed by the proposed project and hence, inadmissible. We refuse to indulge in such a presumption. Whether the sales were affected or not was a question to be decided by the jury upon proper instructions from the court. Merced Irrigation District v. Woolstenhulme, 4 Cal.3d 478, 93 Cal.Rptr. 833, 483 P.2d 1 (1971); and County of San Luis Obispo v. Bailey, 4 Cal.3d 518, 93 Cal.Rptr. 859, 483 P.2d 27 (1971), where evidence was given of sales that may have been affected by a project, but the jury was instructed to disregard such effect. The trial court in the instant case did instruct the jury to disregard any impact whatsoever the urban renewal activities had or might have had. Therefore, we find no error.

The appellant next complains that the city was permitted, over objection, to introduce six alleged comparable sales that were zoned residential in contrast to the subject properties which were zoned business. It is contended that if the subject properties had been zoned residential, the city would not have been permitted to introduce evidence that the value of the properties would be influenced by the possibility of a change to business zoning, unless, as of the date of the taking, there was a reasonable probability of a change in the zoning ordinance in the near future. State ex rel. Morrison v. McMinn, 88 Ariz. 261, 355 P.2d 900 (1960). If such “a reasonable probability” of rezoning had been shown, then the city should have been permitted to use comparable sales of business zoned property as an indication of value of the subject property.

Conversely, contends the appellant, it was an abuse of the court’s discretion to permit the city to introduce evidence of residentially zoned properties where the subject properties are zoned business, unless the city showed a "reasonable probability” that such other residentially zoned properties could have been rezoned for business in the near future and that the purchasers gave a business value to the residentially zoned properties. And, since the city offered no such preliminary evidence, the court should have excluded from the jury’s consideration other residentially zoned properties.

The city responds that an appraisal which fails to consider the highest and best use would not assist to determine the fair market value. State ex rel. Morrison v. Jay Six Cattle Company, 88 Ariz. 97, 353 P.2d 185 (1960) ; County of Maricopa v.

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Bluebook (online)
491 P.2d 489, 16 Ariz. App. 100, 1971 Ariz. App. LEXIS 875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robles-v-city-of-tucson-arizctapp-1971.