Rodman v. Commonwealth , 86 Mass. App. Ct. 500 ( 2014 )

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12-P-223 Appeals Court
DONALD E. RODMAN & others1 vs. COMMONWEALTH.
No. 12-P-223.
Norfolk. April 9, 2014. - October 7, 2014.
Present: Vuono, Meade, & Carhart, JJ.
Eminent Domain, Damages, Expert testimony. Damages, Eminent
domain. Evidence, Expert opinion, Value. Value.
Practice, Civil, Eminent domain proceeding.
Civil action commenced in the Superior Court Department on
March 4, 2002.
The case was tried before R. Malcolm Graham, J., and a
motion for a new trial was considered by him.
Thomas J. Carey, Jr. (Bradley C. Pinta with him) for the
plaintiffs.
John D. Hampton, Assistant Attorney General, for the
Commonwealth.
CARHART, J. In 2001, the Commonwealth, through its
Department of Highways, took by eminent domain nearly five acres
of the plaintiffs' 57.7 acre parcel in the town of Foxboro
1
John D. Murphy and Daniel J. Lynch, Jr. The plaintiffs
are doing business as Bay State Development Association.
2
(town), along with an easement for drainage over an additional
1,112 square feet. As is their right pursuant to G. L. c. 79,
§§ 8A and 14, after receiving a pro tanto award, the plaintiffs
commenced this action seeking a greater damages award.
Following trial, the jury awarded an amount less than the pro
tanto award and the plaintiffs were ordered to repay the
difference. Because we conclude that certain evidentiary
rulings prevented the plaintiffs from offering relevant evidence
of value, we vacate the judgment and reverse the order denying
the motion for new trial.
Background. The plaintiffs' property is located on Route 1
south, across from Gillette Stadium, home of the New England
Patriots football team. Approximately fourteen acres on the
northern portion of the property has been used for many years as
a "temporary" parking lot. The remaining acres were undeveloped
at the time of the taking. Prior to the taking, the plaintiffs'
property contained 1,800 feet of frontage on Route 1 south, a
State road. The portion of the property taken included some
1,620 feet of the Route 1 frontage. Only 170 feet of original
frontage on the northern portion of the property and nine feet
of original frontage on the southern portion of the property
remain. The zoning district in which the property is located
requires an area of 80,000 square feet and 300 feet of frontage
for buildable lots.
3
The property taken was used to complete an elevated ramp
extending from the Gillette Stadium property, crossing Route 1
north and south, and pouring out over and along the plaintiffs'
former property onto Route 1 south. There is no access to the
ramp from Route 1 south or Route 1 north. The only means of
access is from the Gillette Stadium property. Even before the
taking, some of the plaintiffs' frontage consisted of a hill and
ledge.2
Town zoning. In it zoning by-law, the town had created
several zoning districts, some of which overlap. The use table
in article 4 of the zoning by-law contains an exhaustive list of
land uses and delineates for each zone whether the uses are
permitted, not permitted, permitted with a special permit from
the planning board, or permitted with a special use permit from
the zoning board of appeal.3 Section 4.00A of article 4
specifically prohibits all uses that are not noted in the table
of use.
All of the property at issue is located in the Special Use
(S-1) District (S-1 district) and also in the Economic
2
The record reflects that following the taking by the
Department of Highways, the town of Foxboro took another portion
of the plaintiff's property for purposes of constructing a water
tower and a roadway leading to it.
3
For example, storage of high-hazard materials is not
allowed in the Special Use (S-1) District but storage of low-
hazard materials is allowed with a special permit.
4
Development Area Overlay District (EDA). Both of these
districts have stated goals of promoting economic development of
the Route 1/Gillette Stadium corridor. Indeed, the purpose of
the EDA is to "supplement existing zoning regulations to provide
regulating flexibility to encourage economic development."
Hotels are permitted in the S-1 district with a special permit,
as are commercial storage garages, truck terminals, general
commodity and public warehouses, research and development
facilities, and facilities for storage, manufacture, or
processing of noncombustible materials and of low-hazard wares.
Section 9.13 of article 9 governs the EDA and provides that
"[b]uildings and land uses within the [EDA] shall be governed by
the pertinent regulations within the [S-1 district], except as
modified by the provisions of this Section 9.13. Where the base
zoning regulations of the [S-1 district] differ from the
provisions of Section 9.13, the provisions of Section 9.13 shall
govern." Section 9.13 further specifically identifies uses that
"shall be permitted as of right" within the EDA. Among the uses
allowed as of right in the EDA are "[a]ll uses permitted as of
right in the [S-1 district]" and hotels if located on the same
lot as the stadium or on an adjacent or contiguous lot under
common or affiliated ownership. The EDA is silent as to special
permit uses.
5
Trial. At trial, the plaintiffs sought to show that their
property could be developed to a much greater extent before the
taking than after the taking. To that end, their civil
engineers created a plan demonstrating that the property could
be divided into lots for which approval under the subdivision
control law is not required (ANR lots), for uses including a
hotel, office buildings, retail space, warehouse/manufacturing
buildings, and the existing parking lot. They contended that
prior to the taking, they could have created three ANR lots for
a variety of uses, plus the existing parking lot, and a
subdivision of two additional lots in the rear of the property.
They posited that following the taking, the property could be
developed as a subdivision only if access were via a subdivision
road through the existing parking lot and that they would be
limited by the town's 800-foot maximum for dead-end roadways.
Following the testimony of the plaintiffs' two expert
engineers, including extensive cross-examination by the
Commonwealth, the Commonwealth filed two motions in limine. The
first motion sought to prohibit the introduction of plans drawn
by the plaintiffs' experts as to certain development uses and
the testimony regarding those plans, and to strike such
testimony already given. The second motion sought to prohibit
testimony regarding the development approach to value.
Specifically, in their first motion, the Commonwealth took the
6
position that the plans drawn up for the purpose of trial were
inadmissible and testimony related to them should be prohibited
and struck. The Commonwealth argued that any evidence of use
for a hotel, warehouse, or manufacturing facility should be
prohibited and struck as such uses are prohibited in the EDA on
the plaintiffs' property. The Commonwealth contended that only
the "as of right" uses listed in § 9.13 of the by-law are
allowed in the EDA.4
With regard to the development theory of value, the
Commonwealth in its second motion, citing CBI Partners Ltd.
Partnership v. Chatham, 41 Mass. App. Ct. 923, 924 n.3 (1996),
argued that because most of the property is essentially vacant
and there were no pretaking plans to develop it, valuation must
be done on a "whole subdivision[] basis," whereby comparable
sales of similar, large parcels of unsubdivided and unpermitted
land are used to determine fair market value. The Commonwealth
sought to preclude any evidence of the value of individual lots
derived from the property. The judge allowed both motions and
specifically instructed the jury to disregard any evidence of
potential development of a hotel, manufacturing, or warehouse
use.
4
The record does not disclose why the Commonwealth waited
until mid-trial to bring its motions in limine. The
Commonwealth suggests in its brief that it reviewed "in detail"
the plans "at the break" and filed its motion after cross-
examining the plaintiffs' experts.
7
The plaintiffs made an offer of proof that had their expert
appraiser been allowed to consider the development of the locus
as individual lots for hotel, manufacturing, and warehouse uses,
he would have testified that the value of the property before
the taking was $6,365,000 and after the taking was $4,300,000,
resulting in damages of $2,065,000. Instead, he testified that
the value before the taking was $5,885,000 and after the taking
was $4,306,000, resulting in damages of $1,579,000. Ultimately,
the jury awarded damages of $600,800, the exact amount the
Commonwealth's expert testified to and less than the pro tanto
award of $765,000.
Discussion. The factors guiding an award of damages in an
eminent domain case were restated by the Supreme Judicial Court
in Boston Edison Co. v. Massachusetts Water Resources Authy.,
459 Mass 724, 730-733 (2011) (Boston Edison). While we
recognize that the Boston Edison case was issued several years
after the trial in this case, it does not deviate from existing
law at the time of trial. "Where property is taken by eminent
domain, the landowner is entitled to the fair market value of
the property taken at the time of the recording of the order of
taking, as well as 'damages for all injury to the part not taken
caused by the taking or by the public improvement for which the
taking is made.'" Id. at 731, quoting from G. L. c. 79, § 12.
See Aselbekian v. Massachusetts Turnpike Authy., 341 Mass. 398,
8
400 (1960) (Aselbekian). "The fair market value of the property
taken is the highest price that a hypothetical arm's-length
willing buyer would pay to a hypothetical willing seller in a
free and open market, based on the highest and best use of the
property." Boston Edison, supra at 731. Consideration of the
highest and best use is not limited to the use of the property
at the time of the taking but includes "potential uses of land
that a reasonable buyer would consider significant in deciding
how much to pay." Ibid, citing Skyline Homes, Inc. v.
Commonwealth, 362 Mass. 684, 686-687 (1972) (Skyline Homes).
Indeed, it has long been the rule that in determining damages in
an eminent domain taking case, "the jury should consider not
only the value of the property taken[,] but also the effect of
the taking upon that which is left; and in estimating the value
of that which is taken, they may consider all the uses to which
it might properly have been applied if it had not been taken."
Kinney v. Commonwealth, 332 Mass. 568, 572 (1955), quoting from
Maynard v. Northampton, 157 Mass. 218, 219 (1892) (Maynard).
"In like manner, the effect on that which is left should be
estimated in reference to all the uses to which it was naturally
adapted before the taking. Damages are not to be awarded in
reference to the peculiar situation or circumstances or plans of
the owner, or to the business in which he happens to be engaged;
but any and all of the uses to which the land considered as
9
property may profitably be applied, whether contemplated by the
owner or not, may well be taken into the account by the jury."
Ibid.
That is not to say that undeveloped properties are valued
as if the reasonably likely future uses already exist. Nor is
the fact that potential uses may be considered a license to
speculate as to improbable future uses. Potential uses must be
"reasonably likely" to be considered and "discounts for the
likelihood of their being realized and for their futurity" are
applied. Boston Edison, supra at 731, quoting from Skyline
Homes, supra at 686. It has been said that a potential highest
and best use must be "legally permissible, physically possible,
and financially feasible" in order to be factored into a
determination of value. Boston Edison, supra at 731 n.9. In
addition, to be admissible, a potential use must be
"sufficiently imminent to be taken into account by a reasonably
prospective buyer in determining a property's price." Id. at
733. "But a property owner need not have taken recent steps to
develop a property to its highest and best potential use in
order for a reasonable buyer to recognize the likelihood that
the property can be put to that use in the foreseeable future,
discounting the property's value in view of the risk that a
future potential use might be thwarted and that the profits from
the potential use will be earned in future dollars." Ibid.
10
"While a judge may infer that a property owner's failure to
develop the property in accordance with what the property owner
now claims to be its best and highest use suggests that the
potential use was not reasonably likely, a judge is not bound to
that inference where . . . other evidence suggests that a
reasonable buyer would recognize the reasonable likelihood of
the potential use." Ibid.
"Existing zoning restrictions or special permit
requirements limit available uses and may affect the fair market
value of property." Douglas Envtl. Assocs., Inc. v. Department
of Envtl. Protection, 429 Mass. 71, 76 (1999). "However, the
fact that a potential use is prohibited or restricted by law at
the time of the taking does not preclude its consideration if
there was a reasonable prospect of rezoning or acquiring a
special permit." Ibid.
To be sure, "[a] judge has a 'range of discretion' in
deciding whether to admit evidence that a potential use is
reasonably likely in the foreseeable future," particularly when
that determination turns on whether the grant of a special
permit is reasonably likely. Boston Edison, 459 Mass. at 732,
citing D'Annolfo v. Stoneham Hous. Authy., 375 Mass. 650, 656
(1978). The task for the judge is to "avoid unreasonably
restricting the efforts of the owner fairly to show the effect
of the taking upon the market value of the affected property at
11
the time of the taking . . . without permitting damages to be
inflated by unduly detailed and confusing proof of speculative
future uses of property having no very direct relationship to
market values at the time of the taking." Boston Edison, 459
Mass. at 732, quoting from Aselbekian, 341 Mass. at 401.5
Consideration of potential uses. Here, at the time of the
taking, a modern professional football stadium was being
constructed across the street from the plaintiffs' property. In
addition, zoning had been put in place with a stated goal of
allowing regulatory flexibility in facilitating economic
development of the "Route One corridor" in which the taken
property was located. There is little question that at the time
of the taking, a reasonable buyer would have explored how the
plaintiffs' property could be developed in determining how much
to pay for it. Even the Commonwealth's expert testified that
performing due diligence prior to purchasing property is very
important and would include "[l]ooking into zoning and what uses
may or may not be allowed on the property." Thus, whether the
property is properly valued as a whole or by the lot approach,
5
The Supreme Judicial Court has suggested that in making
the difficult decision whether to admit or preclude evidence
concerning a potential use, a judge can choose (i) to decline to
admit the evidence or (ii) to admit it and provide a special
question to the jury asking them to "find the fair market value
of the taken property both under the existing use and under the
potential use," with the option of granting a motion for
judgment notwithstanding the verdict. Boston Edison, 459 Mass.
at 732 n.10.
12
its value could be enhanced by consideration of the range of
uses that would potentially be allowed on the property. See id.
at 400. The Commonwealth's insistence that the historical use
of the property controls its value is misplaced.
Uses allowed in the EDA. Having determined that a
reasonable buyer would have explored the uses to which the
property could be put, we turn to the permitted uses in the EDA.
We review the judge's decision on the admission of evidence of a
potential use under the abuse of discretion standard. See
Boston Edison, 459 Mass. at 732-733. Working with the
plaintiffs' appraiser, the plaintiffs' expert engineer testified
that the highest and best use was multiuse development including
a hotel, manufacturing facility, warehouse, and retail. In its
first motion in limine, the Commonwealth argued that the town's
zoning by-law does not allow hotels, manufacturing uses, or
warehouses in the EDA, and the judge expressly prohibited any
evidence that the property could be put to those uses. The
plaintiffs' engineering experts testified that hotel,
manufacturing, and warehouse uses are allowed in the EDA with a
special permit. The plaintiffs' experts further testified that
where all of the requirements are met, as they would be here,
special permits generally are granted.
Interpretation of a by-law is a question of law. Goldlust
v. Board of Appeals of N. Andover, 27 Mass. App. Ct. 1183, 1184
13
(1989). We discern no ambiguity in the town's zoning by-law.
Section 9.13 under article 9 specifically provides that the uses
within the EDA are governed by the pertinent regulations within
the S-1 district unless modified by the EDA in § 9.13. The only
uses § 9.13 modifies are those permitted as of right by
expanding the list of "as of right" uses. In delineating the
uses allowed as of right in the EDA, the by-law makes no mention
of the uses allowed by special permit in the S-1 district. It
neither restricts nor expands them. In the absence of anything
in the EDA that modifies the uses permitted with a special
permit in the S-1 district, at the time of the taking, the
plaintiffs were free to seek a special permit for those uses
allowed by special permit in the S-1 district.
The Commonwealth suggests that to interpret the by-law the
way we do renders it redundant to specifically include "uses
permitted as of right in the [S-1 district]" in the list of uses
permitted as of right in the EDA. We disagree. By listing some
uses permitted as of right in the EDA and not addressing uses
already permitted as of right in the S-1 district, the by-law
could have been interpreted as having modified the uses
permitted as of right and having eliminated those not
specifically mentioned. The drafters wisely prevented any such
ambiguity by specifically including uses permitted as of right
14
in the S-1 district in its list of uses permitted as of right in
the EDA.
On appeal, the Commonwealth changes tack and argues that
the judge prohibited evidence of potential hotel, warehouse, and
manufacturing uses not because they were not allowed in the S-1
district, but because the plaintiffs had offered insufficient
evidence that a special permit would have been granted. The
Commonwealth did not make that argument to the trial judge.
Where the judge did not explain his reasons for granting the
Commonwealth's first motion in limine, we cannot infer that the
judge granted the motion on grounds that were not argued to him.
Although the Commonwealth cited to Skyline Homes in its first
motion in limine, it did so in the context of its consistent
position at trial and in arguing its motions in limine that
hotel, warehouse, and manufacturing uses are prohibited on the
plaintiffs' property because they are not contained in the list
of uses allowed as of right in the EDA. So far as the record
reflects, the Commonwealth did not agree that the uses are
allowed with a special permit or argue that the plaintiffs had
failed to show that a special permit, as opposed to a zoning
change, probably would be granted. We note that in Skyline
Homes, the Supreme Judicial Court referred to as "prohibited" a
proposed highest and best use that under applicable zoning was
allowed only with a special permit. Skyline Homes, 362 Mass. at
15
685, 687. In that case, however, an application for a special
permit for the proposed use had been denied in the past. Id. at
688. That is not the case here.
Moreover, even if the judge had in mind that the plaintiffs
had to present evidence that a special permit probably would be
granted, their expert testified that in his experience, special
permits generally are granted where no waivers, or other zoning
relief, are required. Because, as the plaintiffs' plans showed,
no waivers were required for the proposed special permit uses on
their plans, the expert opined that the special permits likely
would be granted. With discounts for their futurity and
likelihood, we think a reasonable buyer would have considered as
significant the potential for development of special permit
uses, including hotel, manufacturing, and warehouse uses, when
determining the price the buyer was willing to pay.
In these circumstances, excluding from the jury's
consideration any uses permitted by special permit in the EDA,
including hotel, manufacturing, and warehouse uses, "unfairly
precluded [the plaintiffs] from giving testimony bearing upon
relevant aspects of value." Aselbekian, 341 Mass. at 400
(citation omitted). We are mindful that error in exclusion of
evidence is ground for disturbing a judgment only where it has
"injuriously affected the substantial rights of the parties."
G. L. c. 231, § 119, inserted by St. 1973, c. 1114, § 202. See
16
Mass.R.Civ.P. 61, 365 Mass. 829 (1974). We disagree, however,
with the Commonwealth's contention that any error in precluding
evidence about the uses the property can support or how the
property could be divided was not prejudicial because its expert
testified that the property can be developed in the same way
after the taking as before the taking. It is true that with the
testimony of its own experts and in cross-examination of the
plaintiffs' experts, the Commonwealth presented evidence that
the property still had the same amount of frontage and could be
developed in the same ways before and after the taking. As was
said in Southwick v. Massachusetts Turnpike Authy., 339 Mass.
666, 670-671 (1959) (Southwick), however, "[t]he petitioner was
entitled to bring out the relevant facts. If the reasons for
his opinion could be shown on cross-examination (a) to be
unconvincing, or (b) to result in an overestimate of the value
of the property or of the feasibility of [the potential use], or
(c) to be based on faulty analysis or inadequate investigation,
these matters would go only to the weight of the testimony.
They would not justify excluding the petitioner's testimony and
reasons entirely." Without question, the excluded testimony
impacted the credibility of the plaintiffs' engineering and
appraisal experts' testimony. The ultimate determination of
value was a question of fact for the jury who were entitled to
17
hear all relevant testimony as to how the property could be
developed before making that determination.
Precluding the jury from considering all of the potential
uses is enough to warrant a new trial. Because the same issues
may arise during any new trial, however, we comment briefly on
the remaining issues.
Valuation of property. Separate and apart from whether the
property's development potential may be considered when
determining the damages caused by the taking, the plaintiffs
contend they should have been allowed to value the property on
an individual lot basis. On the record presented to him, the
judge clearly was correct to exclude the individual lot method
of appraisal.
The Supreme Judicial Court noted in Clifford v. Algonquin
Gas Transmission Co., 413 Mass. 809 (1992) (Clifford), that in
many jurisdictions, "[w]here the land is pure raw land, with no
improvements at all having been made, but there was a showing of
adaptability for subdivision purposes, valuation will generally
be on a whole subdivision basis." Id. at 816-817, quoting from
4 Nichols, Eminent Domain § 12.B.14[1][a], at 12B-127 (rev. 3d
ed. 1990). "The accepted rule is that the land will be
considered in its present condition as a whole, with
consideration given to any increment or enhancement in value due
to the property's present adaptability to subdivision
18
development." Clifford, supra at 817. Other courts have
allowed evidence of valuation based on the lot method of
appraisal where there is "credible evidence of the costs of
subdivision -- e.g., the expense of clearing and improving the
land, surveying and dividing it into lots, advertising and
selling, holding it, and paying taxes and interest until all
lots are sold." Id. at 819, quoting from United States v.
47.3096 Acres, etc., in Oxford Township, Erie County, Ohio, 583
F.2d 270, 272 (6th Cir. 1978). Here, where any evidence of the
developmental approach to value was prohibited before the
plaintiffs' appraiser testified, we cannot know whether costs of
development would have been factored in.
The court in Clifford noted that "no clear rule exists and
that admissibility turns on the particular facts and the extent
to which the development had progressed toward completion."
Clifford, supra at 820. In Clifford, the court allowed evidence
of valuation based on the lot method of appraisal where the
taking prevented the completion of the second phase of
development, which had already received preliminary approval and
financing to begin construction. Id. at 820-821. We are
unaware of a Massachusetts case, however, where the lot method
of appraisal was allowed where, as here, no prior steps had been
taken to divide the property. Repeatedly, the Supreme Judicial
Court has stated that evidence of unrealized specific
19
development plans, rather than the effect upon market value of
the general possibility of such a development, is inadmissible.
See Southwick, 339 Mass. at 671; Aselbekian, 341 Mass. at 400-
401; Clifford, supra at 814. See also Douglas Envtl. Assocs.,
Inc. v. Department of Envtl. Protection, 429 Mass. at 76,
quoting from Skyline Homes, 362 Mass. at 686 ("Property must not
. . . be valued as if a needed governmental approval were an
accomplished fact. Rather, the trier of fact should consider
possible uses not yet approved 'with discounts for the
likelihood of their being realized and for their futurity'").
Although the plaintiffs contend the fact that they could have
divided their property into ANR lots rather than lots requiring
subdivision approval distinguishes this case, we are not
convinced. Their plan included a two-lot subdivision in
addition to three ANR lots, with the ANR lots having access
issues due to steep topography. Creating the ANR lots was not
in these circumstances a mere formality. Thus, although the
potential for development and the range of uses that the
property may support are relevant to ascertaining the value of
the property and the effect of the taking, we do not go so far
as to conclude that the property may be valued on an individual
lot basis. So far as it appears from the record before us, the
whole subdivision approach with appropriate consideration of the
property's development potential is the proper measure of
20
damages. Should the evidence develop differently at any
retrial, it will, of course, be open to the trial judge to
consider anew whether a different method of valuation is
appropriate.
Admission of development plans. On any retrial, it will be
within the discretion of the trial judge whether to admit the
plaintiffs' plans that were created for the sole purpose of
demonstrating damages at trial. Evidence about the details of a
"particular unexecuted project, . . . as distinguished from
evidence about the contribution to the then existing market
value" attributable to the possibility of development, is not
admissible. Southwick, 339 Mass. at 669. See Clifford, 413
Mass. at 815, quoting from 4 Nichols, Eminent Domain, supra at
§ 12B.14[1], at 12B-126 (improbable developments or plats
"hastily drawn up for the mere purposes of trial tactics" are
inadmissible). Our cases reveal the dichotomy between
precluding plans created for the purposes of litigation that are
too detailed on the one hand and providing proof that uses
claimed to be the highest and best use are "legally permissible,
physically possible, and financially feasible" on the other.
Boston Edison, 459 Mass. at 731 n.9. Here, the judge described
the plans as detailed and sophisticated, and the Commonwealth
contends they would mislead the jury into concluding that
necessary approvals had been obtained for development. Were we
21
required to decide the issue, it is unlikely we could say the
judge abused his discretion in precluding the plans.
We note, however, the difficult position the plaintiffs are
in. In Aselbekian, the Massachusetts Turnpike Authority took
approximately nineteen acres of the plaintiff's fifty-one acres,
which historically had been operated as a dairy farm.
Aselbekian, 341 Mass. at 399. At trial, there was testimony
that the taking eliminated the usefulness of the property for a
dairy farm and that the highest and best use would be for
development into house lots. Id. at 399-400. An expert
testified in some detail about the value of the property for
this use and submitted a plan showing how the property could be
developed into residential lots. Ibid. While noting that
"[t]he plan, of course, had no proper place in this case except
to illustrate the physical possibility that the land . . . could
have been divided into [residential] lots," the Supreme Judicial
Court concluded that the judge was within his discretion to
admit it even though it was "a matter which . . . could have
been stated with less risk of misleading the jury without use of
a plan." Id. at 401. The Supreme Judicial Court commented that
the judge, in his discretion, could reasonably have refused to
admit the plan as an exhibit, while permitting it to be used as
a chalk. Id. at 402.
 22
While Aselbekian is instructive, explaining a residential
subdivision to a jury is markedly different from explaining the
range of uses allowed in the EDA, some of which would require
sophisticated planning. Charged with introducing evidence that
the property is amenable to uses that are permitted, physically
possible, and financially feasible, it is difficult to conceive
how the plaintiffs could have met their burden without the use
of preliminary plans, at least as a chalk. Some level of detail
was required to support their claim that the land could be
developed for the proposed uses without the need for waivers
and, therefore, special permits likely would be allowed. As the
plaintiffs' counsel argued at trial, had the plans been less
detailed, the Commonwealth would have argued that potential
development for the proposed uses was speculative.
The plans showed where buildings could be placed and also
showed that the plans, as drafted, would require no waivers. At
any retrial, the judge will need to balance the need for the
visual assistance to aid the jury's understanding with the risk
of misleading the jury. It would seem that, at a minimum, clear
labels on the plan and proper instructions reiterating the
purpose of admission of the plans would be warranted should the
plans be admitted into evidence. In addition, a view would go a
long way toward eliminating the potential for confusion. See
Clifford, 413 Mass. at 821 (where the jury were taken on a view,
23
they were "less likely to be confused as to the actual condition
of the property when the expert testified concerning the
proposed subdivision"). Whether specific plans will be
admissible may be the proper subject for a pretrial motion in
limine.
Pro tanto award. The plaintiffs argue that the pro tanto
award should have been admitted as evidence of the
Commonwealth's assessment of damages in this case. We agree
with the Commonwealth that the pro tanto award is in essence a
settlement offer and the judge did not err in declining to admit
it in evidence. The plaintiffs argue that it was unfair that
the Commonwealth was able to cross-examine their expert with an
earlier appraisal but that the plaintiffs were unable to so with
the Commonwealth's initial valuation of damages. It is not
clear to us whether the plaintiffs made any effort to preclude
admission of their earlier appraisal as work product or for
other reasons. We cannot say on this record that it was error
to preclude the admission of the pro tanto award.
Judgment vacated.
Order denying motion for
new trial reversed.