CACI 3503 Change in Zoning or Land Use Restriction
California Civil Jury Instructions CACI
3503 Change in Zoning or Land Use Restriction
A determination of the property’s highest and best use is not necessarily limited by current zoning or land use restrictions. If you decide that as of [insert date of valuation] there was a reasonable probability of a change in zoning or other use restrictions in the near future, then you must determine the highest and best use of the property based on that change.
Sources and Authority
•“Where due to zoning restrictions the condemned property is not presently available for use to which it is otherwise geographically and economically adaptable, the condemnee is entitled to show a reasonable probability of a zoning change in the near future and thus to establish such use as the highest and best use of the property … . ‘The general rule is that present market value must be determined only by uses for which land is adaptable and available. However, where land sought to be condemned is not presently available for a particular use by reason of a zoning ordinance or other restriction imposed by law, but the evidence tends to show a “reasonable probability” of a change in the near future, the effect of such probability on the minds of purchasers generally may be taken into consideration in fixing present market value … .’ ” (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 867–868 [135 Cal.Rptr. 647, 558 P.2d 545], internal citations omitted.)
•“A determination of the property’s highest and best use is not necessarily limited to the current zoning or land use restrictions imposed on the property; the property owner ‘is entitled to show a reasonable probability of a zoning [or other change] in the near future and thus to establish such use as the highest and best use of the property.’ ” (County of San Diego v. Rancho Vista Del Mar, Inc. (1993) 16 Cal.App.4th 1046, 1058 [20 Cal.Rptr.2d 675], internal citations omitted.)
•“[T]he determination as to whether or not there is a reasonable probability of a [use] change is ordinarily a question of fact for the jury.” (Metropolitan Water Dist. of So. California v. Campus Crusade for Christ, Inc. (2007) 41 Cal.4th 954, 967 [62 Cal.Rptr.3d 623, 161 P.3d 1175].)
•“Before such evidence may be presented to the jury, however, the trial court must first determine whether there is sufficient evidence that would permit a jury to conclude there is a reasonable probability of rezoning in the near future. Evidence of a reasonable probability of a zoning change in the near future ‘must at least be in accordance with the usual minimum evidentiary requirements, and that which is purely speculative, wholly guess work and conjectural, is inadmissible.’ The evidence, if credited, must also be sufficient to establish that rezoning is reasonably probable. If the trial court determines that no fact finder could find a reasonable probability of rezoning on the record presented, it may exclude all evidence and opinions of value based on a use other than that authorized by the existing zoning. If, on the other hand, the trial court determines that there is sufficient evidence of a reasonable probability of rezoning to warrant submitting the issue to the jury, it is for the jury, in considering the weight to be given valuation testimony based upon a reasonable probability of rezoning, to determine whether there was a reasonable probability of rezoning and, if so, its effect on the market value of the property. Thus, before a jury may even reach the question whether a use which was unauthorized by the existing zoning otherwise meets the criteria of a highest and best use, the jury must first find that there was a reasonable probability of rezoning to permit that use. Once that has been established, neither party bears the burden to persuade the fact finder of the effect of this probability on the valuation of the property.” (Metropolitan Water Dist. of So. California, supra, 41 Cal.4th at p. 968, internal citations omitted.)