California Civil Jury Instructions (CACI) (2017)

3503. Change in Zoning or Land Use Restriction

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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.
New September 2003
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
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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.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 1231
1Condemnation Practice in California (Cont.Ed.Bar 3d ed.) §§ 4.12–4.17
14 California Real Estate Law and Practice, Ch. 508, Evidence: General, § 508.13;
Ch. 512, Compensation, § 512.10 et seq. (Matthew Bender)
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)
CACI No. 3503 EMINENT DOMAIN
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