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.)

Secondary Sources

8 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, § 1017

1 Condemnation Practice in California (Cont.Ed.Bar 2005) §§ 4.12-4.17

4 Nichols on Eminent Domain, Ch. 12C, Absence of Market Value and Effect of Restrictions, §§ 12C.01-12C.03, Ch. 13, Fair Market Value— Physical Character, §§ 13.04, 13.29 (Matthew Bender)

(New September 2003)