STATE, DEPT. OF TRANSP. AND DEVELOPMENT v. Davis

394 So. 2d 641, 1980 La. App. LEXIS 5015
CourtLouisiana Court of Appeal
DecidedDecember 15, 1980
Docket13844
StatusPublished
Cited by6 cases

This text of 394 So. 2d 641 (STATE, DEPT. OF TRANSP. AND DEVELOPMENT v. Davis) 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
STATE, DEPT. OF TRANSP. AND DEVELOPMENT v. Davis, 394 So. 2d 641, 1980 La. App. LEXIS 5015 (La. Ct. App. 1980).

Opinion

394 So.2d 641 (1980)

STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
v.
Aldrich A. DAVIS et ux.

No. 13844.

Court of Appeal of Louisiana, First Circuit.

December 15, 1980.
Rehearing Denied February 11, 1981.

*642 Robert L. Oliver, Richard N. Burtt, Johnie E. Branch, Jr., Assts. to Gen. Counsel, Dept. of Transp. & Development, Baton Rouge, counsel for plaintiff-appellant, State of Louisiana, Dept. of Transp. & Dev.

Vanue B. LaCour, Baton Rouge, counsel for defendants-appellees, Aldrich A. Davis and Ionia W. Davis.

Before COVINGTON, CHIASSON and LEAR, JJ.

COVINGTON, Judge.

This is an expropriation suit by the State of Louisiana, through the Department of Transportation and Development, in connection with the construction of the Scotlandville Interstate By-Pass Highway, I-110, referred to as State Project No. 450-33-79, in East Baton Rouge Parish, Louisiana. The Department obtained an order under the "quick-taking" statute, LSA-R.S. 48:441 et seq., for the expropriation of a *643 tract of land owned by Aldrich A. Davis and Ionia W. Davis, made defendants herein,[1] which tract is a rectangular-shaped parcel of land containing approximately 1.80 acres, of which 1.43 acres is being expropriated. No improvements are involved. The Department deposited the sum of $14,377.00 as its estimate of just compensation for the value of the land taken. The defendants withdrew the deposited sum, and asked for $33,014.00 as the value of the land, plus $9,953.00 as severance damages.

In answer to the expropriation proceeding, the defendants placed at issue the value of the property taken and severance damages allegedly due to them.

The trial court found that the date of the taking was March 6, 1969, and the area of property taken to be 62,508.6 square feet, or 1.43 acres, leaving a remainder of 17,859.6 square feet, or 0.410 acres. The property is described as Lot 69, North Baton Rouge Subdivision, fronting 159.4 feet on the south side of Central Road, an asphalt-covered concrete roadway with curbs and gutters. After the completion of the project, the remainder will have access to a paved service road. The trial court also found that $0.50 per square foot would be just compensation, based primarily on the appraisals of the defendants' appraisers, and held that the defendants were entitled to the sum of $31,254.30, less the amount previously deposited, $14,377.00, or the additional sum of $16,877.30. The court denied severance damages, but awarded attorney's fees in the amount of $4,500.00.

In appealing from the judgment, the Department complains of the trial court's fixing of the value of the property taken in the following respects: (1) assessing the depression and restriction in the development of the area due to a runway extension at the local airport; (2) finding the property taken not subject to development; (3) accepting the landowners' appraisers in preference to the Department's appraisers; (4) failing to consider certain comparable sales offered by the Department; (5) and fixing of the amount of just compensation due the defendants at more than $0.23 per square foot.

All of the assignments of error by the Department relate to the fixing of the value of the subject property.

The defendants' appraisers, Kermit Wayne Williams and John LeJeune, were in agreement in considering that the highest and best use of the subject property was multi-family residential, which could be accommodated within the existing zoning regulations. The property was zoned A-3.1, a multi-residential zoning permitting up to four-family usage. LeJeune testified it was feasible for this property to be developed as a four-plex complex which would contain six four-plexes and one duplex, or a total of 26 rental units. W. A. Gordon appraised for the Department and was of the opinion that the property's highest and best use was for residential purposes. We find, as did the trial court, that its highest and best use was multi-family residential.

It is well settled that potential use of expropriated property may be deemed its highest and best use for purposes of evaluation, where there is reasonable expectation that property may be so used, developed or employed in the reasonably foreseeable future. Where potential use is reasonably prospective, or reasonably certain to the extent that such use is removed from the realm of guesswork, speculation and conjecture, such potential use may be considered the highest and best use for fixing value in an expropriation. See State, Department of Highways v. St. Tammany Homestead Ass'n., 304 So.2d 765 (La.App. 1 Cir. 1974), writ refused, 307 So.2d 373 (La.1975). We thus find that the Department's argument that the evidence does not support a reasonable expectation for multi-family residential use is unfounded. The expert testimony shows that under its present zoning the property could be used for multi-family residential purposes; or, if necessary, rezoning *644 could be effected without undue problems in the reasonably foreseeable future.

In Recreation and Park Commission for Parish of East Baton Rouge v. Drago, 247 So.2d 908 (La.App. 1 Cir. 1971), writ refused, 259 La. 749, 252 So.2d 452 (1971), the property was zoned A-2 (single family units only) and capable of being used as A-4 (multi-family dwellings). The court ruled that under the facts and circumstances the highest and best use was for multi-family dwellings, such use was not remote, speculative or conjectural, but rather could be accomplished within the reasonably foreseeable future. The court relied upon the cases which held that in order to ascribe a certain purpose as constituting the highest and best use to which property being expropriated may be put, it must be shown that this potential use is reasonably prospective and removed from the realm of guesswork, speculation and conjecture. See e. g., State, Department of Highways v. Brooks, 152 So.2d 637 (La.App. 2 Cir. 1963), writ refused, 244 La. 663, 153 So.2d 880 (1963).

There is a substantial difference in the opinions of the landowners' appraisers and the opinion of the Department's appraiser as to the value of the property taken, although all appraisers used the market data approach to fix the value of the property. Mr. Williams, using five comparable sales from November, 1968, to May, 1977, arrived at an estimate of $0.45 per square foot, or a total of $28,145.00.

He described his appraisal of the subject property, as follows:

"Q. Can you describe where the property is located?

A. Yes, sir. The property is better located on these maps than I could describe it, but it is in the North Baton Rouge area behind the Scotland School and across from the Community Center. It is on Central Avenue. It is zoned A-3, which is suitable for four-plexes or duplexes or single family under this zoning. I think the distinct possibility is there that it could be zoned to a higher use. It is very well suited and could be used under its present zoning. At the time of this expropriation, probably some of the more favorable money on the market was for a four-plex system. I think this property was very well suited for that designation as of March of this year. However, my research indicated that the entire area has been subject to a, for loss of a better word, blight in that the development of the property has been restricted since 1969. This area was at one time restricted, because of its development, due to the impending construction of an east-west runway at the airport. Therefore, no building permits were permitted in there.

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Bluebook (online)
394 So. 2d 641, 1980 La. App. LEXIS 5015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-dept-of-transp-and-development-v-davis-lactapp-1980.