arrHitInfo=new Array("000,1,11","000.00,1,5","0000,1,1","10,1,4","100,1,1","102,1,1","1036781,1,1","11,1,1","118,1,1","12,1,2","13,1,1","14,1,2","144,1,1","148,1,1","15,1,2","155,1,1","16,1,2","164,1,1","17,1,1","175,1,3","186,1,1","1951,1,1","1955,1,1","1956,1,1","1962,1,1","1966,1,1","1967,1,1","1973,1,2","1976,1,1","1977,1,1","1978,1,1","1980,1,1","1982,1,2","1984,1,2","1987,1,6","1988,1,4","1990,1,1","1993,1,1","207,1,1","2150,1,1","22,1,1","230,1,1","26,1,1","27,1,2","278,1,1","279,1,1","280,1,3","2d,1,5","30,1,2","307,1,1","313,1,2","315,1,1","3200,1,1","333,1,1","36,1,1","360,1,2","37,1,1","370,1,3","377,1,1","38,1,1","3d,1,2","403,1,1","411,1,1","427,1,1","44040,1,1","44113-1994,1,1","44114,1,1","454,1,1","46,1,1","49,1,2","492,1,1","497,1,1","50,1,1","500,1,1","53,1,1","54,1,1","55,1,1","600,1,1","61220,1,5","61220.txt,1,4","65,1,2","69,1,1","70,1,1","750.00,1,1","96,1,1","above,1,1","abuse,1,1","accommodate,1,1","accordingly,1,1","actually,1,2","adapted,1,1","addressed,1,1","adherence,1,1","adjusted,1,1","admissibility,1,2","admissible,1,4","admission,1,3","admit,1,1","admitted,1,1","admitting,1,1","adopted,1,1","advances,1,1","advantage,1,1","advantages,1,1","advised,1,3","affirmed,1,3","affluent,1,1","after,1,2","against,1,7","agency,1,1","agreeable,1,2","aid,1,1","al,1,2","all,1,3","allegation,1,1","alleged,1,1","allow,1,2","already,1,1","also,1,8","always,1,1","am,1,1","amount,1,4","an,1,20","ann,1,1","announce,1,1","announcement,1,1","anthony,1,1","any,1,8","anywhere,1,1","app,1,4","appeal,1,3","appeals,1,4","appearances,1,1","appears,1,1","appellant,1,1","appellate,1,2","appellees,1,1","appendix,1,4","applied,1,2","apply,1,1","appraisal,1,1","approach,1,3","approaches,1,1","appropriated,1,11","appropriately,1,1","appropriation,1,5","approval,1,2","architect,1,2","architectural,1,2","are,1,7","area,1,1","areas,1,1","argument,1,2","arrive,1,1","arriving,1,2","as,1,19","assemblage,1,1","assessment,1,1","assignment,1,4","assignments,1,8","assigns,1,1","at,1,12","attacks,1,1","attorney,1,1","authorization,1,1","authorized,1,1","back,1,1","bad,1,1","baker,1,1","based,1,1","be,1,23","bearing,1,2","because,1,7","become,1,2","becomes,1,1","before,1,1","begin,1,1","being,1,2","bench,1,1","bennett,1,1","best,1,2","beyond,1,1","blackmon,1,1","board,1,5","bostic,1,1","both,1,1","bring,1,1","building,1,9","business,1,1","businessman,1,2","but,1,5","by,1,18","c.e,1,1","can,1,4","cannot,1,1","carry,1,1","case,1,11","cases,1,3","cause,1,1","center,1,1","certain,1,1","certified,1,1","chagrin,1,2","chairman,1,1","challenge,1,1","challenged,1,2","change,1,3","character,1,1","characteristics,1,1","charge,1,1","charles,1,1","cited,1,2","citing,1,1","city,1,5","civil,1,1","claims,1,5","class,1,1","clearly,1,2","cleveland,1,2","close,1,1","co,1,7","code,1,6","codes,1,1","comments,1,1","commercial,1,4","commission,1,4","commissioned,1,1","committee,1,1","common,1,2","comparable,1,2","comparables,1,1","compelled,1,1","compensation,1,4","competent,1,4","completely,1,1","compliance,1,1","complied,1,1","comply,1,1","concept,1,1","concerning,1,1","concur,1,1","condominiums,1,1","confirmed,1,2","confirming,1,2","confiscation,1,1","conformance,1,1","connor,1,1","consequently,1,3","consider,1,10","considerably,1,1","consideration,1,2","considered,1,2","considering,1,1","constitute,1,2","construct,1,2","construction,1,3","contends,1,2","context,1,1","contractor,1,1","contrary,1,1","controlling,1,1","converting,1,1","copy,1,2","corresponding,1,1","cost,1,1","costs,1,1","could,1,4","council,1,2","county,1,2","court,1,37","coyne,1,1","credibility,1,1","credible,1,2","current,1,2","cuyahoga,1,2","damages,1,1","date,1,3","david,1,4","days,1,2","december,1,3","decision,1,2","defendant,1,17","defendant-appellees,1,1","defendants,1,13","defendants-appellees,1,2","dehass,1,2","deliberations,1,1","deliver,1,1","demonstrated,1,1","demonstrates,1,4","denying,1,1","depart,1,2","descriptive,1,1","desirable,1,1","destroyed,1,1","determination,1,4","determinations,1,1","determine,1,3","determined,1,4","determining,1,6","develop,1,2","developed,1,4","development,1,1","developments,1,1","devoted,1,1","did,1,3","differential,1,1","directing,1,1","director,1,2","discretion,1,2","discussed,1,1","distinguishable,1,1","district,1,2","division,1,2","document,1,1","does,1,1","domain,1,6","drawings,1,1","during,1,2","dyke,1,2","early,1,1","eighth,1,1","either,1,3","element,1,3","elements,1,2","eli,1,1","eliminate,1,2","eliminated,1,3","emergency,1,1","eminent,1,6","enable,1,1","enforcement,1,1","enough,1,1","entering,1,2","entry,1,3","epa,1,1","err,1,3","erred,1,6","error,1,7","errors,1,1","es,1,1","esq,1,6","essential,1,2","established,1,1","estate,1,1","estimate,1,2","et,1,2","euclid,1,4","even,1,1","every,1,2","evidence,1,19","evidentiary,1,1","excessive,1,1","excuse,1,1","execution,1,1","exercising,1,1","existing,1,4","exists,1,1","experience,1,1","expert,1,22","exposed,1,1","expressely,1,1","extremely,1,1","factor,1,1","facts,1,3","fair,1,13","fairly,1,2","faith,1,1","falls,1,1","favor,1,1","favorable,1,1","feliciano,1,1","fifth,1,1","figure,1,1","figures,1,1","filed,1,1","find,1,1","finds,1,1","fire,1,1","first,1,4","five,1,4","foley,1,1","follow,1,1","followed,1,1","following,1,2","follows,1,2","foot,1,1","for,1,34","foregoing,1,2","forest,1,1","forth,1,1","found,1,1","four,1,2","fourth,1,1","fox,1,1","from,1,17","future,1,1","garrison,1,1","gates,1,12","gavin,1,2","general,1,1","generally,1,1","gerlack,1,1","give,1,4","given,1,5","gives,1,1","giving,1,1","go,1,2","goes,1,1","going,1,2","grant,1,4","granted,1,2","granting,1,1","grounds,1,1","guidelines,1,1","had,1,3","hall,1,1","hardship,1,1","has,1,2","have,1,2","having,1,1","heard,1,3","held,1,4","herein,1,1","hereof,1,1","hide,1,1","highest,1,2","highways,1,1","his,1,5","holding,1,3","homes,1,1","hostetler,1,1","house,1,1","however,1,1","id,1,1","if,1,5","igid,1,1","ignored,1,1","ii,1,1","iii,1,1","illuminating,1,1","immaterial,1,1","in,1,72","inaccurate,1,1","inadmissible,1,1","inappropriate,1,1","including,1,2","incorrectly,1,2","incrementally,1,1","independently,1,1","indicate,1,1","industrial,1,2","information,1,1","informed,1,3","initial,1,1","inn,1,1","inspector,1,2","installation,1,1","instant,1,2","instructing,1,2","instruction,1,2","instructions,1,11","intention,1,1","into,1,5","investor,1,1","involuntarily,1,1","is,1,33","issue,1,6","it,1,23","its,1,12","january,1,2","jones,1,4","jose,1,1","journal,1,1","journalization,1,2","judge,1,1","judgment,1,9","judgments,1,1","jur,1,1","jury,1,27","just,1,3","justified,1,2","kebe,1,5","kisil,1,1","l.p.a,1,1","lakeshore,1,1","land,1,6","landowner,1,2","last,1,1","law,1,3","lawfully,1,1","leffe,1,2","legally,1,1","less,1,2","lesser,1,1","likely,1,1","likewise,1,1","limitation,1,1","limited,1,2","literal,1,2","located,1,5","location,1,2","loretta,1,1","lot,1,1","lower,1,1","made,1,3","make,1,1","mandate,1,2","manifest,1,5","manner,1,2","manos,1,2","mansour,1,1","market,1,14","masheter,1,5","masonry,1,1","material,1,2","matters,1,1","may,1,5","mayfield,1,3","mayor,1,3","me,1,1","means,1,2","measure,1,1","median,1,1","meeting,1,1","meetings,1,1","ment,1,1","mention,1,1","mere,1,1","merit,1,1","method,1,1","michael,1,1","might,1,1","mills,1,12","minch,1,1","money,1,1","more,1,4","moreover,1,4","morris,1,2","most,1,1","motion,1,1","mr,1,1","multi-family,1,10","n.b,1,1","nahra,1,1","national,1,1","near,1,1","necessity,1,1","needs,1,1","negin,1,1","no,1,4","non-complying,1,5","non-existent,1,1","nor,1,2","norwood,1,1","not,1,23","notified,1,1","november,1,1","number,1,2","objected,1,1","objection,1,1","obtaining,1,1","occur,1,2","occurred,1,1","october,1,2","offer,1,1","office,1,4","ohio,1,24","on,1,11","one,1,4","only,1,4","operated,1,1","operates,1,1","opinion,1,5","orange,1,1","order,1,1","ordered,1,2","ordinance,1,5","ordinary,1,2","other,1,1","out,1,1","over,1,3","overruled,1,2","overstatement,1,1","owner,1,2","owners,1,2","paid,1,2","pang,1,1","paragraph,1,2","paragraphs,1,2","parcel,1,7","parcels,1,3","park,1,1","parking,1,1","parks,1,1","part,1,2","particular,1,2","parties,1,1","party,1,2","past,1,1","pay,1,2","people,1,1","period,1,1","permission,1,1","permit,1,1","permits,1,1","permitted,1,11","permitting,1,1","physical,1,1","plaintiff,1,34","plaintiff-appellant,1,3","plan,1,2","planning,1,3","plans,1,6","pleas,1,2","policy,1,1","political,1,1","porter,1,1","portion,1,2","possibility,1,7","power,1,1","practical,1,1","practically,1,1","pre-appropriation,1,1","predicated,1,3","prejudicial,1,1","preparation,1,1","prepared,1,1","present,1,1","presented,1,6","presenting,1,1","presently,1,2","presiding,1,1","prestigious,1,1","presumption,1,1","prevent,1,1","price,1,2","primarily,1,1","probabilitiy,1,1","probability,1,4","probate,1,7","procedure,1,2","proceeding,1,1","proceedings,1,1","prohibited,1,1","project,1,2","prominent,1,1","properties,1,3","property,1,36","proposed,1,6","proposition,1,1","provided,1,2","proximity,1,2","prudent,1,2","public,1,5","purchase,1,2","purchased,1,3","purchaser,1,2","purchasing,1,1","purpose,1,2","purposes,1,3","pursuant,1,2","qualifications,1,1","qualifies,1,1","range,1,2","rationale,1,1","raymond,1,1","re,1,3","real,1,1","reasonable,1,2","reasonably,1,1","reasons,1,3","received,1,1","receiving,1,2","recognized,1,1","record,1,4","recover,1,1","red,1,1","redicated,1,1","redundant,1,1","reflects,1,1","refuse,1,1","refusing,1,4","regarding,1,2","regulation,1,3","regulations,1,1","relate,1,1","relates,1,1","relating,1,1","relevant,1,2","relies,1,1","remaining,1,1","repeated,1,1","requested,1,2","require,1,1","requirement,1,1","requirements,1,6","residential,1,3","resolution,1,1","respect,1,2","restaurant,1,2","restrictions,1,1","retail,1,4","reveals,1,1","reversal,1,1","reversed,1,1","reversible,1,2","review,1,5","reviewing,1,1","revisions,1,1","re-zoning,1,1","richard,1,2","rickelman,1,1","rickleman,1,1","riehl,1,1","right,1,1","rights,1,1","river,1,1","road,1,1","rule,1,6","rules,1,2","ruling,1,1","run,1,1","rundelli,1,1","sale,1,1","sales,1,1","sandusky,1,1","sanitation,1,2","schaeffer,1,1","seating,1,1","second,1,2","secretary,1,1","section,1,1","securing,1,1","see,1,10","seeks,1,1","sent,1,1","sentence,1,1","september,1,1","serves,1,1","set,1,2","set-back,1,4","settled,1,2","seventy,1,1","sewage,1,1","shall,1,1","should,1,3","significant,1,1","significantly,1,1","silent,1,1","site,1,2","six,1,1","sixth,1,2","sold,1,1","sole,1,1","solely,1,1","some,1,1","sought,1,1","sound,1,1","source,1,1","sowers,1,1","speaking,1,1","special,1,1","specified,1,1","specifying,1,1","speculate,1,2","speculating,1,1","square,1,2","st,1,7","st.2d,1,2","st.3d,1,2","stamped,1,1","standard,1,2","standards,1,1","stanley,1,1","state,1,2","stated,1,1","states,1,1","strict,1,1","strike,1,1","strong,1,1","struck,1,2","subdivision,1,1","subject,1,10","submit,1,1","submitted,1,1","subsequently,1,3","substantial,1,1","suburb,1,1","sucessfully,1,1","such,1,5","suitable,1,1","supported,1,1","supra,1,4","supreme,1,1","surroundings,1,1","syllabus,1,5","system,1,1","take,1,2","taken,1,1","taking,1,2","tax,1,1","taxed,1,1","ten,1,1","term,1,1","terms,1,1","test,1,1","testifed,1,1","testified,1,2","testify,1,1","testimony,1,21","than,1,5","that,1,58","their,1,12","them,1,1","there,1,1","they,1,5","third,1,2","thirty,1,1","this,1,13","three,1,2","time,1,7","timely,1,1","to,1,94","town,1,2","townhouse,1,3","town-house,1,6","transcript,1,1","trial,1,7","tried,1,1","truth,1,1","turnpike,1,2","two,1,6","u-2,1,1","under,1,7","underscored,1,1","undisputed,1,1","undue,1,1","unlike,1,1","unsubstantiated,1,2","up,1,1","upon,1,7","upwardly,1,1","use,1,33","used,1,2","useless,1,1","uses,1,4","utili,1,1","utilized,1,4","valid,1,1","valuable,1,2","valuation,1,7","value,1,26","valued,1,1","variance,1,16","variances,1,6","verdict,1,6","village,1,18","violations,1,1","viz,1,2","voted,1,3","vs,1,1","was,1,28","water,1,1","weight,1,8","well,1,3","were,1,11","what,1,2","when,1,2","where,1,2","whether,1,2","which,1,24","while,1,1","who,1,4","wide,1,1","will,1,5","willing,1,2","with,1,7","within,1,3","without,1,1","witness,1,11","witnesses,1,2","wood,1,3","worth,1,2","would,1,16","years,1,1","you,1,6","your,1,1","zation,1,1","zoned,1,1","zoning,1,24"); arrFiles=new Array();arrFiles[0]=new Array(1,"61220.txt","4 Feb 1998","61220","","","       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.  ",27);