People ex rel. Department of Transportation v. Tanczos

Opinion

SONENSHINE, J. Oswald and Laura Tanczos appeal from a condemnation judgment awarding them $320,000 for property taken by the State of California Department of Transportation (State). They maintain the award would have been significantly greater but for the court’s exclusion of their construction plans, offered as evidence of one of the feasible uses of the property.

I

In the 1950’s, the Tanczoses built a residence on an oversized lot in Tustin. Eventually they obtained a city building department’s approval of construction plans for two or three rental units on the rear of the property. In 1989, before construction commenced, the State initiated a condemnation action relating to freeway expansion.

Unable to agree on the property’s fair market value, the parties proceeded to trial. The State made an in limine motion to prohibit the Tanczoses from introducing the approved construction plans. It argued the jury might assume the rental units would be built and impermissibly increase the value of the land on that basis. The Tanczoses maintained the plans were necessary to prove the feasibility of the project. Without this evidence, the Tanczoses said, the State would argue construction of multiple units was “speculative.” The court granted the motion, reassuring the Tanczoses the State “surely” would not make such an argument because if it did, the Tanczoses would be allowed to show the jury the plans. The court explained, “[The State] is not going to argue something that I am not going to let you bring in.”

The Tanczoses had reason to be concerned. During their case in chief, the Tanczoses’ expert testified the property was worth $440,000 because a three-apartment unit could be built on it. On cross-examination the State, pointing to an aerial photograph, asked the expert to demonstrate how the units would fit on the property. He was unable to do so, admitting he had not personally determined whether the property could accommodate the units. Indeed, after he answered further questions posed by the State about the size of the residence and the building setback requirements, it appeared as though space limitations prohibited the construction of the additional units.

[1218]Not surprisingly, the Tanczoses asked to introduce the approved plans for the limited purpose of showing the feasibility of the construction. The court denied this request, stating, “You don’t have to submit the plans[,] all you have to do is have somebody testify [three units could have fit].” However, the Tanczoses’ only remaining expert, a senior planner for the city, could not say if there was enough room on the property for the construction of three additional units. He could only testify the zoning permitted such use. The State’s expert then testified the property was worth no more than $285,000 because the land could accommodate the addition of only one more unit.