City of Baton Rouge, Parish of East Baton Rouge VS Terrace Land Company, Inc., Terrace Land Company, L.L.C.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2006 CA 2107 CITY OF BATON ROUGE AND PARISH OF EAST BATON ROUGE VERSUS TERRACE LAND COMPANY KcJ INC TERRACE LAND COMPANY LLC Judgment Appealed Rendered September 14 2007 from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Louisiana Trial Court Number 505 345 Honorable R Michael Caldwell Judge E Wade Shows Attorneys for Leo J D Aubin Plaintiff Gwendolyn K Brown LaiTY D Book Baton Rouge LA City of Baton Rouge and Parish of East Baton Rouge Christy R Bergeron Marguerite K Kingsmill Attorneys for Defendant Appellee Randall A Smith Terrace Land Co L Land Co Tiffany Davis Appellant LLC New Orleans LA BEFORE CARTER C J PETTIGREW AND WELCH JJ Inc Terrace WELCH J Plaintiff the appeals Land a City of Baton Rouge Parish of East Terrace Land judgment awarding defendants LLC Company Land Terrace Baton additional Rouge Parish City Inc Terrace Company this just compensation in We affirm expropriation proceeding BACKGROUND The City Parish undertook public works project a for Interstate 10 between Bluebonnet Boulevard and Louisiana known the as Picardy Avenue notified Terrace Land that it intended to fronting mile Interstate10 owned from subdivision and acres lane Siegen comprised the property was acquire of Lane in Baton 16 seven adjacent tract of land acre The property located Rouge Parish City In 2002 the portion of a a service road a one fourth a lots in the Audubon Terrace to the zoned A I subdivision residential for totaling 2 88 single family use In 2002 the Parish City hired Michael Defelice determine the value of the Terrace Land property City Parish on May of the property was residential in the subdivision lots residential totaling 458 700 Terrace area at real a In estate He submitted 2002 in which he determined that the 9 vacant tracts all of which occurred in 1999 a appraiser valuation to the to highest and best determining the value of property Mr Defelice used sales of four use the Terrace Land that had been zoned A I Mr Defelice valued the 188 700 00 thus 270 000 00 and the bulk acreage tract at 00 Land disagreed property by depositing 458 700 00 into the parte order of expropriation On with the valuation City Parish initiated this expropriation proceeding ex Siegen Interchange Terrace Land vacant tract of land a At the time residential is by to construct to March acquire registry of the 2 2003 the the Terrace Land court Terrace Land contested the 10 and taking obtaining of its an property and filed a motion City Parish into the registry of the Prior trial the to 270 000 00 as Land parties stipulated that Terrace Thereafter jury issues no taking of the bulk valuation than that offered testimony showing unit planned development or S P DD there to demonstrate be obtained to achieve that sales of other properties was a area at 597 556 08 He also opined by 1 City the 444 302 Parish for directed verdict nothing to should be 16 acre tract In so s probability appraiser to the low a zone small a density change could Tom Cook considered early part of 2003 He valued the two developments taken was as Terrace Land also neighborhood setting reasonable higher a doing it offered development designed for that the value of the land determine the some acre tract propeliy remaining after the setting the total compensation and of damages to owed the remainder at 00 At the conclusion reasonable the a 704 887 92 taking would be diminished by to of the property use from 2002 which had been sold for S P D D type Lots 130 and those lots would be held was appraiser s Terrace Land use in the a to valuator of establish that the property had highest and best single story commercial offices in attempted to sought by the City Parish that the by acreage tract and whether the taking affected the value of the remaining portion of the Terrace Land denied deposited by accepted the relating day jury trial five a for the compensation At trial 458 700 00 just compensation for the expropriated portions of to the issue of just was court 137 of Audubon Terrace subdivision and presented which expropriation proceeding dismiss the Thereafter Terrace Land withdrew the the trial court the to of Terrace Land arguing probability there was no the case City Parish moved for demonstrating evidence from considering s appraisal Mr Cook 3 s there therefore was a a there was It also asserted that the jury that the property could be rezoned support the basis of Mr Cook precluded s testimony because Mr Cook made sales and urged that such standards of real Regarding that Cook issue going to there was support no his office the to attempt two the weight City rezone S P DD his such president on awareness found that there a near any there on the was a the s set forth for to appraisers a complete The fact that testify property the Cook Mr that there be appraiser the while court observed testimony testimony support of its claim that in The City Parish planning s staff would have recommended property homeowner s The subject property was Lastly that the staff of the not any the comprised of members the Terrace Land property rezoning efforts denying City Parish also offered association to director attested that who Mr in stated that the Defelice testified to effect reasonably probable a based Planning Commission would have opposed of the property Following the conclusion of the five day jury trial the jury awarded Land the the the property could have been rezoned probability of court appraisal methods and opined that obtaining rezoning development a use put the Terrace Land members would oppose his Parish an appraising of Mr Cook development subdivisions located regarding approved by that stressed legal requirement was no Planning and Zoning of the testimony the strictly follow the standards not there reasonable S P DD a other experts testifying for Terrace Land court industry standards in order for Thereafter the on the Cook used different methods in was an not were on zoning change could be achieved through the a appraisal s that he did making adjustments Mr Specifically Cook and two real estate Mr to valuation based which reasonable persons could conclude of Mr adherence adjustments a denied the motion testimony in the board across setting practice estate probability acknowledged when upon evidence reasonable adjustments court The trial was the board some across sum of 597 556 08 as compensation 4 Terrace for the property taken in accordance with Mr Cook to award any however valuation of the property s severance compensation 270 000 00 and the 597 556 00 less the jury finding s 458 700 00 that the vacant acreage in judgment in the amount of representing the stipulation of the patiies that the subdivided lots declined jury The trial court entered damages favor of Terrace Land for additional The 408 856 00 were had valued at value of a deposit withdrawn from the registry by Terrace Land The JNOV as City urging to the Parish filed that there a Further the Mr Cook but In involved higher of the use opinion inconsistent because offered damages to the by remaining basically expressed differences of opinions with the jury obviously Moreover the court observed experts nothing inconsistent in the jury verdict because if the jury accepted that property could be rezoned and developed severance was observed that this trial of the property s s probability of obtaining expropriated property severance court who experts of Terrace Land accepting the testimony the support Mr Cook reasonable value of the rejected his testimony regarding battle to City Parish argued the jury verdict regarding the highest and best was on a denying the motion the trial a Judgment Notwithstanding the Verdict insufficient evidence was it awarded Terrace Land the there a valuation of the propeliy based rezoning tract motion for damages because that as a S P DD property could be used to there would be a support no S P DD development Terrace Land filed trial court amount of a motion for attorney fees expert fees and granted the motion ordering the City Parish 105 000 00 In this appeal as the well Parish City as court costs and The City Parish attorney fees in the urges that the trial court erred in also submits that the 5 The expert witness fees JNOV and that the comi should have excluded the appraiser to pay costs testimony of court erred in denying the Terrace Land denying s its request for interrogatory concerning the possibility of rezoning an Terrace Land answered the attorney fees and the should answer finding it answer Rouge Also costs not to be awarded that on The untimely City on L L C a Rouge submitted at trial to this panel to 2006 2107 La why cause CityIParish and the motion to hereby grant 1st 4 5 07 App proposed jury instructions We show of and Parish of East Baton this court referred the merits of the day rule amount 5 2007 this court dismissed the April of Baton Company the record to include its supplement increase in the an CityIParish filed be dismissed and Terrace Land v appeal seeking s motion to interrogatories supplement the record JURY VERDICT FORM The 1 what questions was the value of The property in a verdict form submitted to the jury failing to In 2535 a probability that answer two 2 what to court the jury committed reversible error regarding whether there rezoning could be achieved s was requested by the as 1 the given highest 2000 2559 p current the burden of highest question or no to by the City Parish and determining the fair market value of land taken as that the yes jury any to the remainder of Terrace Land damages if Parish contends that the trial City consideration is known the value of the land taken severance include reasonable City Parish was asked the jury use 8 to La 15 5 based 2000 2535 at pp 8 9 788 that use 01 2d So use doctrine Exxon 788 So 2d 1154 presumed to potential future expropriation an to which the land Pipeline 1160 be the presumption by proving on a The record reflects that the requested question profitable of the property is use on most and best overcoming and best the in use is Co v can case be put Hill 2000 It is well established highest and best use and the existence of a different on the landowner Exxon at 1160 City Parish objected the jury verdict form 6 to the court s failure to include the It is undeniable that required Land zoning change a required was rezoning foreseeable cert development See future Construction sub case It probability 513 D S 1083 because it involved a obtaining a Thus 115 S Ct 736 District v reasonably Coast by failing to a to to City Parish contends interrogatories actually submitted without to the the include to personal injury jury requested to the the reasonable the jury will factor that issue into its ultimate determination of the West 1995 just disposition failing a v 1275 issue the requested interrogatory regarding of the defendant in Quality 640 So 2d 1258 130 L Ed 2d 639 determination critical an S P D D in the Development Corp rezoning is analogous interrogatory regarding liability assuming Families that the failure to include of as a La 5 23 94 submits that the court erred Parish City posits Des probability of obtaining the Levee 20 S P D D would have as a support its valuation claim Terrace of the property 93 1718 p Bayou nom Jefferson Levee Dist The to West Jefferson Corporation denied interrogatory Thus in order demonstrate the reasonable to necessary for of the property development an case damages interrogatory the served to mislead and confuse the jury regarding the proper inquiries The record reflects instructions regarding that the trial Terrace Land s court gave the jury the following burden of proving there existed a reasonable probability that rezoning could be achieved The current and best proving use of the property is presumed to be the highest and the burden of overcoming that presumption by use the existence of a different highest and best use on a potential future use is on the landowner Specifically where a permit or zoning change is necessary for development of the land in order for the land to be put to its alleged highest and best use the landowner bears the burden of proving the reasonable probability of obtaining the permit or zoning change necessary for development in the reasonably foreseeable future Where there is no reasonable probability permit for the change in zoning a development could be obtained or that a classification allowing such development could necessary 7 occur in the reasonably foreseeable future the asserted higher considered and best use of the property for purposes of market valuation because such use would be illegal In the may not be use as reviewing a highest jury verdict form this of discretion standard of review App st 1 Cir 2 20 98 misleading or inadequate correct law and on confusing In the instant III so 1160 that the facts use proof for the when zoning change a a manifest is Jury forms error precluded from reaching the absence of the failure to reasonable is necessary to obtain a a landowner better and were that the jury on the jury s higher questioned was on that For these property requested jury interrogatory and find include it are Id legal principles regarding possibility a jury detailed lengthy instructions issue affected the valuation of the Terrace Land no La may not be set regarding the reasonable probability of rezoning and how their opinions conclude there is abuse interrogatories that or Moreover the record reflects that witnesses property error 96 2787 p 3 jury verdict form jury the trial court gave the accordance with the well establish burden of A may constitute reversible case employs Beam Radiator Inc v 708 So 2d 1158 aside unless the form is verdict based Ford court reasons we misled confused no error or by in the trial court s verdict form EXPERT TESTIMONY The testimony made not be a City Parish contends that the trial of Mr Cook motion for considered Cook s gatekeeping because the the jury on of real estate methodology testimony unreliable function refusing At the conclusion of Terrace Land directed verdict by accepted standards that Mr a erred in court the basis that his appraisal was and therefore to asserting that on exclude the s case the Parish City Mr Cook appraisal appeal the s testimony should did not conform to City Parish fundamentally flawed so as to submits render his the trial court should have exercised its exclude his jury obviously relied In this to appraisal Mr Cook 8 s The Parish City urges that fatally deficient conclusions in reaching its verdict the verdict Mr Cook The appraisal testifY was as to Parish raised expert in real objection no to Mr at course the at Cook of his valuation and estate s qualification Mr testimony his ultimate conclusions in Mr Cook attested that before inspect neighborhood an as During the in detail how he arrived subject property out be reversed at trial accepted expert appraiser an explained City must Cook appraising the any conclusions he went making property and neighborhood and studied the trends in the the time what new developments taking place were and how the subject property could be impacted by the neighborhood and the surrounding He also studied until to sales of other comparable shortly before the taking which he felt the Terrace Land property Mr Cook s took properties that were place area from 2000 indicative of the market value of land sale summary was presented to the jury through a power point presentation In arriving his ultimate conclusion that the Terrace Land property had at fair market value of adjustments for numerous inflation and 4 75 flood zone and problems that a subject developer to sales downward 20 On cross methodology addition to to employed making in the case of the location He made use across In following comer a Cook made final increased influence doing a hassle pretty heavy the have the Mr Cook the board for shape adjustment to to encounter to so that he made Mr adjusted to hit get the on the compensate for the zoning issues examination Mr Cook he taking the would have S P VD subject property rezoned acknowledging subject property size frontage the including interstate influence status property rezoned from residential each of the to prior various factors physical characteristics values for the square foot a a in an across zoning issue arriving was at questioned extensively regarding the his appraisal It was the board reduction in value of the Mr Cook also made 9 an across revealed that in comparable sales the board adjustment in of 5 considering the shape property had 10 unusual for sound wall practice of do over and also shape across that he did make individual On re testimony City shape its make to over the and if he had it to adjustments every across one propeIiies He also attested adjustments he still would have arrived of the Terrace Land supporting its the board of the nine Defelice Mr claim that Mr Cook asked whether it was adjustments for factors such in Mr properties Cook as the study s Defelice testified that he Moreover across rule the Parish City was methods and that an did As this court has pp 13 14 admissible examination La evidence offer must be necessary to or aware produce certainly App 1st Cir expert 2 9 07 testimony was Although are adjustment to Mr appraisal of and a trial correct be general appraisal court need not Breitenbach 959 So 2d 926 can a correctly employ recognized credible a it offered tested 936 by v determine that Stroud 2006 As with all other vIgorous presentation of contrary evidence and careful instructions 10 his specific written standard prohibiting a consistently observed expert testimony is irrefutable 0918 not adjusting comparables Instead appraiser techniques an very hesitant to criticize Mr Cook and his the board reductions in requiring comparable that require s physical acknowledging that the recognized methods for evaluation of a comparable consider the individual facts about the at property jury should be precluded from considering a expeIi own standard a comparable properties number of instances regarding the value unreliable that Indeed appropriate a Parish failed to offer evidence was so valuation the board adjustments in ultimate conclusion subject direct examination however Mr Cook stressed that while he may have made different The reflect that the he would have accommodated for the differences in the again same to acknowledged that it is adjustments considering rather than to make making the adjustments the properties adjusted all of the comparables downward Mr Cook visibility to make appraisal individually in an of the various cross on the burden of absence of 2006 0918 at p Id proof in the record proof Cook in his his valuation of the reaching rather than to its testimony s to th e JUry examination cross which Mr to property was an admissibility Accordingly Cook Cook practices made by issue going we the Considering fatal flaw in Mr a conclude that any deviation from the standard we trial court 959 So 2d at 936 demonstrating methodology and the rigorous subjected 14 to find the was Mr weight no error s of in the 2 determination to allow Mr Cook s valuation testimony to be presented JNOV Finally the City motion for JNOV a viewed in the and light A JNOV is warranted most overwhelmingly arrive at 1601 pp a Parish contends that the trial court erred in favorable in favor of the contrary conclusion 5 6 18 5 La could not A trial court erroneous The was s SP DD 2 City v Gibraltar 1203 render a conclusions so strongly persons could not Savings and Loan The motion should be 98 granted JNOV not merely when there is a Id 98 1601 at p 6 733 So 3d at 1203 mover Parish contends that find probability the Therefore it use propel1y We motion is can only be overturned if it is manifestly Id and should have of the to opposing the strongly in favor of the moving party that reasonable reach different refusal reasonable a so when the facts and inferences moving party that reasonable Peterson of evidence for the preponderance the party 733 So 2d 1198 99 only when evidence points persons to only its denying accepted We posits no reasonable jury could have found that there Terrace the Land property could be rezoned for jury could Mr Defelice s not accept Mr Cook valuation based on s valuation the residential value disagree City Parish s argument that Mr Cook s valuation was certain that the S P D D fundamentally testimony that he was 100 could be achieved on the Terrace Land property which is clearly a matter going to his rezoning credibility rather than the admissibility of his appraisal no merit to the flawed because of his 11 There can be no the JNOV involved and best case the trial as battle of the experts a of the property use reasonable doubt that this was a court Mr Cook S P DD Defelice however opined the highest and that to rezoning achieve a and best higher denying that the highest and that there to achieve that of the property use of the use opined development probability that the prope1iy could be rezoned observed in property was use Mr residential was not was a reasonably probable Two extensive expert real experience their clients testified based on their Terrace Land an express estate brokers in the Baton on in the Baton area Rouge S P DD was a and in Both Kurz who had expressed their opinion that highest and best neither witness However for handling zoning issues the area George use was of the able to opinion regarding the probability that rezoning could be achieved the trial comi sustained the elicit such Rouge and Falgoust behalf of Terrace Land experience property Michael City Parish s objection opinion testimony from these witnesses to Terrace on Land s as attempts to the ultimate issue before the JUry Nevertheless the brokers find there Falgoust was reasonable designation are Code in 2003 He described basically s proposed the S P DD jury S P DD proposed service road Falgoust and was Siegen a foundation for the in writing the Parish City s particularly the sections dealing with residences and six commercial Mr assisted as a built like houses Through his testimony Land a a jury probability that rezoning could be obtained he that explained Development offices a testimony provides transitional type and appear to be presented with Terrace a part of a lots for with a area was Mr Dniform S P DD in which the neighborhood diagram showing which had single story buildings zoning a to Terrace single family neighborhood office a buffer drawn in attested that the Siegen 12 Lane one of the largest growth in Baton areas would expect it one Rouge and given the location of the Terrace Land property be to involvement in 2002 with Lane that Siegen was was able to obtain that his a office own sale of a two a zoning change building is in to a Rouge area property S P DD s his Rouge Parish a 16 the City Parish Center the Falgoust revealed S P DD is accessed growth in been with efforts rezoning developers developing the identified of all 16 He in the Baton Terrace Land tenns of Community Planning was by the City Parish as planning districts in East Baton propeliy is located between two different hot spots in centers identify the and where the property is in greatest need and was located near these potential development that there greater need for the property Planning Commission it in Baton taking explained that growth being developed centers meant Planning Commission s zoning advisory committee for East stressed that the fact the Terrace Land property a at mile from the Terrace Terrace experience dealing which has Mr Kurz centers demand and Mr one personal experience He also attested that the of what is growth developer noting that the developer P DD located a near established that the Terrace Land property is located the fastest rate of experiencing terms on testimony Planning District growth years on S P D D at the time of the Mr Kurz III square foot that there would have been interest in as a Bluebonnet Boulevard purchased by proposed Siegen and had extensive belief based expressed his was on also discussed his He residential subdivision Advisory Committee for several Parish tract develop the S Mr Kurz stated that he served Rouge a S P DD a acre 5 12 price of Land property and that like the by going past a as zoned residential but P DD higher commercial S developed Process significant was a Through his testimony greater and Growth Reports prepared by the City Parish revealed that from 1992 1997 requests in Growth Center 5 located adjacent 13 to of the 47 s rezoning the Terrace Land property 46 approved were for and only rezoning in Growth one was denied From 1998 2003 there Center 5 with 12 requests approved and only Mr Cook testified that he considered several different Land property before determining that its highest and best opined that it it reasonably probable was adjoins the interstate and has good stressed that the property is feet there noted are developers projects at developer Mr Cook the time would visibility exist the factor Parish offered the a 1993 to the implement development and testimony City Parish studies rezoning requests The deny or grant request has Planning a Baton light 20 He also and in that 720 Moreover land he for their probability that a and then makes Metro Council reduction in value for Commission development on attractive developer could have the subject of probability Troy a for Bunch was rezoning did who testified hired comprehensive a by the land as not an City Parish use plan for Planning and Zoning recommendation to the turn which the his office to ultimately detennines whether every He estimated that 90 the to zoning change of the time accepts the recommendation of his office and 90 14 Staff Planning makes recommendations Mr Bunch stated that since 1993 through a Rouge and later became the planning director Planning Commission in request come a S P DD a He testified that his office Council Metropolitan vacant reasonable Mr Bunch Horizon Plan growth in for the Commission traffic a obtaining rezoning was reasonable expeli in the field of planning and zoning in He use suppOli of its claim that City making expressed his celiainty that property rezoned for S P D D In S P DD stressing the fact that the property has considerable frontage Interstate 10 and the Mr Cook also in success opined there of purchase the subject property with the rezoning effort use was a protected by eight pieces having great were denied one that the property could be rezoned because access residences and seven requests for the Terrace uses 720 feet from the intersection only 13 were the of thei time the Metro Council accepts the recommendation of the He added that 90 Commission Planning of the time the Metro Council suppOlis the decision of the councilman of the district in which the request is made Mr Bunch testified that if there had been Land propeliy for the based the the on area as submitted of a S P D D development low density to his residential landowners about it presented with a recommended design numerous instances or taking a in this land use case to The allow the president a would have was opposed Terrace Land She granted it Mr Bunch examination Of a he never neighboring the jury was where his office had zoning request where the special note is that office recommended s and the taking where either the to proposed development and the subdivision located her cross zoning change denying also offered the of the Homeowner stated that it his any of the of the only two denying a neighborhood Metro Council zoning change City Parish MOlning Glen a acknowledged spoke with was information from representative plan from low density residential office in connection with another voted 8 0 never the Metro Council Commission recommended amend However he the time of the near voted to approve denying it weeks before the and plan study and analysis of the project Additionally during Planning Commission gathered the district councilman and the state the Terrace Land S P D D to opposed it He stated that if the office in 2003 his office would have desirability of the requested zoning change request the Terrace his office would have development district and then would have conducted Planning rezone comprehensive plan for the City of Baton Rouge which designates engineers homeowners saw to request a s adjacent to Robin Hote a resident of Audubon Terrace and Association for Audubon Terrace subdivision perception a testimony of as president of the neighborhood office 15 She association that the association development like the aclmowledged however the that she had not one proposed by spoken with any homeowners about this proposed Lastly and best Mr Defelice stated that in Planning properties interstate Commission On he used frontage After trial court s a to fastest grant centers well the fact that as proximity He as in valuing while the Tenace Land a a JNOV Clearly reasonable juror we find there no was was property only manifest evidence as East Baton presented with in the a achieving could be Rouge Parish and its location between Additionally s the had in fact been jury was the Tenace Land a with a property he acknowledged he did proposed development and he does Additionally numerous the jury through Mr not number of s opposed do the not speak for the to any Planning testimony instances where his office recommended 16 were that his office not speak Bunch as developed in close presented rezoning request he did two development rezoning had been granted for properties that normally does when considering Commission was providing S P DD a type of investigation into the merits of the proposed S P D D residents about the one error residential Moreover while Mr Bunch stated that his office would have rezone not property had could have concluded that property for development number of S P D D instances where S P D D any effort to of the use originally zoned residential which put it in greater demand for this type of to the his expressed office S P D D an for Such evidence includes the location of the property in the growing district in growth analyzed the zoning potential examination Mr Defelice admitted that comparable of the Tenace Land reasonably achieved zoning highest residential S P D D a a the use as Commission Staff review of the evidence factual basis upon which residential staff would oppose the S P D D s that property for thorough refusal cross as a and subsequently approved rezoning Planning and therefore concluded that reasonably probable of the the by meeting with belief that the property selecting of the Tenace Land property he use the property development was denying a zoning request and the Planning Commission recommendation and approved demonstrate reasonable reasonable that no it or the Metro Council Accordingly as the rejected that City Parish failed to jury could have concluded there existed probability of rezoning the trial court correctly denied the motion for a a JNOV CONCLUSION Based in the on the amount of of East Baton foregoing 5 091 00 the judgment are assessed to Rouge AFFIRMED 17 appealed from is affirmed All costs appellant City of Baton Rouge Parish
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