COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61220 VILLAGE OF GATES MILLS : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION DAVID R. JONES, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 14, 1993 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Probate Court Division Case No. 1036781 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: MICHAEL T. GAVIN, ESQ. JOSE FELICIANO, ESQ. ELI MANOS, ESQ. LORETTA H. GARRISON ANTHONY J. COYNE, ESQ. RAYMOND RUNDELLI, ESQ. MANSOUR, GAVIN, GERLACK BAKER & HOSTETLER & MANOS CO., L.P.A. 3200 National City Center 2150 Illuminating Building Cleveland, Ohio 44114 55 Public Square Cleveland, Ohio 44113-1994 CHARLES T. RIEHL, ESQ. Director of Law Village of Gates Mills Town Hall - Chagrin River Road Gates Mills, Ohio 44040 - 1 - DYKE, J.: Plaintiff-appellant, Village of Gates Mills, appeals from a judgment of the Probate Court of Cuyahoga County which confirmed a jury verdict of $280,000 as just compensation for a parcel of land appropriated from Defendant-appellees, David R. Jones and Richard T. Rickelman. Plaintiff assigns six errors for review. The first five challenge an evidentiary ruling and instructions which permitted the jury to consider a non-complying use, viz., multi-family use and the possibility of a building code variance in determining the fair market value of the appropriated property. The sixth assignment of error states that the verdict was against the manifest weight of the evidence. Plaintiff's assignments are without merit. For the reasons which follow, the judgment of the probate court is affirmed. In September, 1987, defendants, David Jones, an attorney and real estate investor and Richard Rickleman, a masonry contractor, purchased the subject property, a 17,100 square foot parcel, for $175,000.00. The parcel, located in the business district of Gates Mills was the site of the Red Fox Inn Restaurant which was completely destroyed by fire in 1982. In October, 1987 the defendants informed the Mayor of their intention to develop the parcel for multi-family use, a use permitted at the time of purchase. They also commissioned a - 2 - prominent architect to develop site drawings of the proposed town house project. In November, 1987 the defendants sent a copy of the proposed townhouse plans to the Mayor and to the Village's Building Inspector. On December 5, 1987 the Village Council adopted an emergency resolution which eliminated all multi-family residential use from its zoning code. On December 7, 1987 the Village Building Inspector, who also serves as Secretary to the Village's Planning and Zoning Commission and Architectural Review Board, provided defendants with guidelines for obtaining approval of their proposed development plan. On December 30, 1987, the defendants and their architect discussed their townhouse plan at a meeting of the Planning and Zoning Committee. On January 9, 1988 defendants presented their plans to the Architectural Review Board. They received favorable comments from its Chairman but were advised to consider revisions and or apply for certain variances to bring their plans into conformance with the existing building code. During the above cited meetings, no mention was made that the Village had already voted to eliminate multi-family use from its zoning code. In October of 1988, the Mayor notified the defendants that Council had voted to take the property for use as a public park. - 3 - During a bench trial defendants challenged the necessity of the taking and alleged bad faith on the part of the Village. The court found in favor of the Plaintiff, and the sole issue of valuation was subsequently tried to a jury. Plaintiff's expert witnesses testified that the fair market value of the property was $65,000.00. Defendant's expert witness testifed that the fair market value of the property was in the range of $313,000.00 to $370,000.00. The jury determined the fair market value of the property to be $280,000.00. The court confirmed this verdict and the Plaintiff filed this timely appeal. I In its first assignment or error, the Plaintiff advances two claims. First, it claims that the probate court should have struck the testimony given by the Defendant's expert witness regarding Defendant's initial plans to construct town-house condominiums on the subject property because multi-family use was subsequently eliminated by Plaintiff's zoning ordinance. Plaintiff also claims that the court should have struck expert testimony which specified that a variance would be granted from the set-back requirements of the zoning ordinance. The rule of valuation in an appropriation trial is not what the property is worth for any particular use, but what it is worth generally for any and all uses for which it might be suitable, including the most valuable uses to which it can reasonably and practically be adapted. - 4 - If in the opinion of an expert appraisal witness, an informed, willing purchaser would be presently agreeable to pay more than an amount justified under existing zoning, such evidence is admissible because it reflects upon the fair market value of the property. Masheter v. Kebe (1976), 49 Ohio St.2d 148, paragraphs one and two of the syllabus. "The 'fair market value' of appropriated land is the only test used to determine just compensation for the landowner. Any evidence which is legally competent, relevant and material to aid in this determination of fair market value is admissible." Director of Highways v. Bennett (1962), 118 App. 207, paragraph 3 of the syllabus. "Every element that an ordinary prudent businessman would consider as fairly entering into the issue of value is relevant. Masheter v. Ohio Holding Co., (1973), 38 Ohio App. 2d 49; see Sowers v. Schaeffer (1951), 155 Ohio St. 454. Plaintiff contends that the court's admission of expert valuation testimony based upon Defendant's proposed town-house project was reversible error because the Defendant's expert provided no evidence of the possibility of a zoning change which would accommodate such use. See, City of Euclid v. Lakeshore Co. (1956), 102 Ohio App. 96. The facts of City of Euclid are, however, distinguishable from the facts of the instant case. In City of Euclid the Defendants sought to submit expert testimony of the value of - 5 - appropriated property predicated on an unsubstantiated opinion that a zoning change, which would permit a more valuable use, was likely to occur. In the instant case, the Defendant's expert witness presented testimony of the value of appropriated property predicated not upon an unsubstantiated opinion that a zoning change would occur in the future, but upon zoning which actually permitted multi-family use, a use that was subsequently eliminated. It is undisputed that multi-family use was permitted at the time the Defendants purchased the property. Five days after their plans were submitted, the Plaintiff voted to eliminate multi-family use. Consequently, it appears that the City of Euclid is incorrectly applied and operates to prevent the Defendants from presenting the facts of their case as they occurred. The record demonstrates that the court, over the objection of the Plaintiff, permitted the defendant/property owner, David Jones, to testify to the preparation of the town-house plans because it would not hide the truth from the jury. Moreover, it is well settled that either party's expert can present evidence as to the value of the property within a reasonable time both before and after the taking as bearing upon its market value at the time of the appropriation. See, Norwood v. Forest Converting Co., (1984), 16 Ohio App. 3d 411 paragraph number five of the syllabus. - 6 - "As bearing upon the value of a parcel of land taken by eminent domain, it is competent for either party to offer evidence descriptive of the property, its location, physical characteristics, advantages, purposes and surroundings. "Eminent Domain - Measure, Amount and Elements of Compensation or Damages." 27 Am. Jur. 2d Section 427 (1966). The public policy rationale for the admission of testimony of non-complying use is well established within the context of eminent domain cases. This was underscored in Porter v. Board (1977), 50 Ohio St.2d 307, when the Supreme Court of Ohio, citing Kebe, supra., held that evidence of a non-complying use is more appropriately admitted in eminent domain cases than in tax assessment cases. A strong argument can be made for such a rule when the issue is the amount of money to be paid by a political subdivision which is exercising its right of eminent domain over the property for public use. Such a rule gives an advantage to the landowner who is being compelled to give up his land involuntarily to the public agency. Id. at 315. Even if the court did err in admitting Defendant's expert valuation testimony predicated on the town-house construction concept, the admission would not constitute reversible error. The record demonstrates that the town-house construction approach was one of two approaches presented to the jury to enable them to determine the fair market value of Defendant's - 7 - appropriated property. . While the Plaintiff attacks the method and value determinations presented by Defendant's expert, it is well settled that a trial court has the discretion to determine if a witness qualifies as an expert witness. Moreover, "The testimony as to the value of appropriated land, a witness' qualifications, the means used to arrive at figures, and the source of a witness' information go to the weight and not the admissibility of the testimony." In re Appropriation by Ohio Turnpike Commission (1955), 164 Ohio St. 377, 403. Under the town-house approach the value of the subject property was determined to be $370,000. Under the comparable sales approach, the value was determined to be $360,000. A $10,000 differential in valuation is not incrementally significant enough to be prejudicial to the rights of the plaintiff. In its second argument, the Plaintiff seeks reversal because it claims that the Defendant's expert testified that the Plaintiff's Planning and Zoning Commission, would grant a variance of the set back requirement in this particular case. A review of the transcript reveals that Plaintiff's allegation is an overstatement. The record demonstrates that Defendant's expert was speaking in general terms with respect to his past experience in securing variances for building code violations. - 8 - In Kisil v. Sandusky (1984), 12 Ohio St.3d 30, the court held that the standard for granting a variance which relates solely to area requirements should be a lesser standard than that applied to variances which relate to use. Consequently, Mr. Leffe's opinion testimony was not inaccurate nor inappropriate. Moreover, Plaintiff also incorrectly relies on Masheter v. Wood (1973), 36 Ohio St. 2d 175 for the proposition of law that any evidence concerning variances in inadmissible. The court in Wood held that evidence regarding the "possibility" not the "probability" of re-zoning was admissible. Wood is silent with respect to the issue of variances. For the foregoing reasons, Plaintiff's first assignment of error is overruled. II In assignments two and three, the Plaintiff contends that the trial court erred in refusing to deliver the instructions it had prepared for the jury. (See, Appendix, Assignments 2,3) Plaintiff's instructions limited the jury to consider permitted uses only, viz., retail or office use and advised against speculating as to whether the Village would grant any variance to allow the property to be developed in a manner which was not in compliance with the Plaintiff's existing zoning and building codes. "It is within the sound discretion of the court to refuse to admit proposed jury instructions which are either redundant or - 9 - immaterial to the case." Bostic v. Connor, et al. (1988), 37 Ohio St.3d 144. The record demonstrates that Plaintiff's proposed jury instructions (See Appendix, Assignments 3,4) were not material to the jury's deliberations in that they were contrary to the holding of Kebe which expressely permits the consideration of non-complying use and ignored Defendant's valid pre-appropriation purpose in purchasing the subject property. In permitting the jury to consider the "possibility" not "probability" of a variance, (See, Appendix, Assignments 5,6,) the court recognized that excessive use regulation can become an abuse of zoning power. See, Negin v. Board of Building and Zoning Appeals (1982), 69 Ohio St. 2d 492 at 497 where the court held that "[r]igid adherence to set-back requirements which make a lot useless for any practical purpose goes beyond mere limitation of use and becomes confiscation." In assignments four and five, the Plaintiff objected to the instructions actually given by the court in that they permitted the jury to consider a non-complying use and permitted the jury to speculate on the issue of whether a variance would be granted in determining the fair market value of the subject property. (See Appendix, Assignments 4,5) The court's instructions clearly state that "in determining the highest and best use, you may consider the "possibility" of a variance but not the "probability" of a variance. The - 10 - possibility of receiving a variance is clearly "an element that an ordinary prudent businessman would consider as fairly entering into value..." and is admissible under Masheter v. Ohio Holding Co, supra. Moreover, the court limited its charge and advised the jury against considering the "probabilitiy" of receiving a variance. The instructions given addressed the evidence presented by the parties and complied with controlling case law in eminent domain proceedings. See, Masheter v. Kebe, supra., paragraphs one and two of the syllabus. A presumption always exists that the jury has followed the instructions given to it by the trial court. Pang v. Minch (1990), 53 Ohio St. 3d 186. For the foregoing reasons, the court did not err in refusing to give Plaintiff's jury instructions nor did it err in giving the instructions cited in the syllabus of Kebe. Plaintiff's second, third, fourth and fifth assignments of error are overruled. III In its sixth assignment of error, Plaintiff claims that the verdict and its corresponding judgment are against the manifest weight of the evidence. Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest - 11 - weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 279. The jury was exposed to a wide range of evidence. It considered the testimony of plaintiff's expert witness who utilized four commercial properties in Mayfield Village and determined the value of the appropriated property to be $65,000, a figure significantly lower than the $175,000 purchase price paid by the defendants. It also considered the testimony of defendant's expert who stated that Mayfield Village parcels were not comparable because unlike Gates Mills, Mayfield Village demonstrated residential areas where homes were located in extremely close proximity and could be purchased for $70,000. Defendant's expert also challenged Plaintiff's comparables because the parcels utilized were located near industrial parks, developments which were non-existent in Gates Mills. The jury heard repeated testimony that current zoning prohibited multi-family use and permitted only retail and office use; that the appropriated property was subject to a number of parking, sanitation and set-back restrictions which would require variances and that installation of a sanitation system was subject to EPA approval and could cost anywhere from $15,000 (Defendant's estimate) to $46,000 (Plaintiff's estimate) to construct. The jury also heard testimony that the subject property was the last remaining commercial property in the affluent suburb of - 12 - Gates Mills; that a restaurant seating seventy people, having substantial water and sewage needs operated sucessfully on that property for over thirty years; that if the property could not be developed independently for permitted office and or retail purposes, it could be developed as part of an "assemblage" of properties (testimony of Plaintiff's expert witness); that the median price of residential property in Gates Mills in 1988 was $278,750.00; that Defendant's expert utilized three commercial properties, two located in Chagrin Falls and one located in Orange Village, valued at $313,600, $333,500 and $370,000 in arriving at his determination that the fair market value of the subject property was $360,000. The jury also heard testimony that the parcels utilized by the Plaintiff's expert witness were sold in the early 1980's and were not upwardly adjusted for time of sale, their less desirable industrial proximity or their considerably less prestigious location. "The testimony as to the value of appropriated land... go[es] to the weight and not the admissibility of the testimony." In re Appropriation by Ohio Turnpike Commission, supra. The credibility of witnesses and the weight to be given to their testimony are primarily matters for the jury's determination. State v. DeHass (1967), 10 Ohio St. 2d 230. Under the standards set forth in Morris, In re Appropriation and DeHass, competent, credible evidence going to every essential element of the case was presented at trial. - 13 - Consequently, the judgment of the probate court confirming the jury's verdict that $280,0000 was just compensation for the parcel of property appropriated from the defendants is not against the manifest weight of the evidence. Accordingly, the judgment of the Probate Court is affirmed. - 14 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court, Probate Division, to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, J., AND BLACKMON, J., CONCUR PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. - 15 - A P P E N D I X 1. THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION TO STRIKE THAT PORTION OF THE TESTIMONY OF STANLEY LEFFE, THE OWNERS' VALUATION EXPERT, RELATING TO VALUATION OF THE PROPERTY REDICATED UPON ITS USE FOR MULTI-FAMILY PURPOSES, A USE NOT PERMITTED BY THE ZONING ORDINANCE OF THE VILLAGE OF GATES MILLS, AND THAT PORTION OF HIS TESTIMONY SPECIFYING THAT THE BOARD OF ZONING APPEALS OF THE VILLAGE OF GATES MILLS WOULD GRANT THE PROPERTY OWNERS A VARIANCE FROM THE SET-BACK REQUIREMENTS OF THE ZONING ORDINANCE. 2. THE COURT ERRED IN REFUSING TO GIVE THE FOLLOWING INSTRUCTION TO THE JURY REQUESTED BY PLAINTIFF: "THE PROPERTY IS ZONED UNDER THE CLASS U-2, COMMERCIAL USES, AND MAY BE DEVOTED ONLY TO RETAIL OR OFFICE USE. YOU MAY NOT CONSIDER ANY OTHER USE, INCLUDING TOWNHOUSE USE, IN ARRIVING AT YOUR DETERMINATION OF FAIR MARKET VALUE." 3. THE COURT ERRED IN REFUSING TO GIVE THE FOLLOWING INSTRUCTION TO THE JURY REQUESTED BY PLAINTIFF: "IN DETERMINING FAIR MARKET VALUE, YOU CANNOT SPECULATE THAT THE VILLAGE OF GATES MILLS WILL GRANT ANY VARIANCE TO ALLOW THE SUBJECT PARCEL TO BE DEVELOPED IN A MANNER WHICH DOES NOT LAWFULLY COMPLY WITH THE VILLAGE'S CURRENT ZONING AND BUILDING CODE." 4. THE COURT ERRED IN INSTRUCTING THE JURY AS FOLLOWS: "IF YOU FIND FROM THE EVIDENCE IN THIS CASE THAT AN INFORMED, WILLING PURCHASER WOULD BE PRESENTLY AGREEABLE TO PAY MORE THAN THE AMOUNT JUSTIFIED UNDER EXISTING ZONING REGULATIONS, YOU MAY TAKE INTO CONSIDERATION SUCH EVIDENCE AS A FACTOR IN DETERMINING THE FAIR MARKET VALUE OF THE PROPERTY." 5. THE COURT ERRED IN INSTRUCTING THE JURY AS FOLLOWS: "LIKEWISE, IN DETERMINING THE HIGHEST AND BEST USE, YOU MAY CONSIDER THE POSSIBILITY OF A VARIANCE BUT NOT THE PROBABILITY OF A VARIANCE. THE TERM VARIANCE MEANS PERMISSION TO DEPART FROM THE LITERAL REQUIREMENTS OF A ZONING ORDINANCE. AS AUTHORIZED -- EXCUSE ME. AN AUTHORIZATION TO THE PROPERTY OWNER TO DEPART FROM THE LITERAL - 16 - REQUIREMENTS OF THE ZONING REGULATION IN UTILI- ZATION OF HIS PROPERTY IN A CASE IN WHICH STRICT ENFORCEMENT OF THE ZONING REGULATION WOULD CAUSE UNDUE HARDSHIP." 6. THE VERDICT AND THE JUDGMENT CONFIRMING IT ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.