Supreme Court of California

Generally, at a compensation trial in an eminent domain action, when presented with a proffer that there is a highest and best use that is not permitted by the property's current zoning, the trial court should examine whether the proffer supplies sufficient evidence to permit the jury to find that there was a reasonable probability of rezoning to permit that use in the near future. The jury should then be instructed that it may consider the change in use, provided that it first finds a reasonable probability the property could be rezoned in the near future. Here, trial court's ruling on compensation is remanded because it examined the evidence of rezoning under an unduly rigorous standard. The trial court's decision regarding severance damages is affirmed.

Appellate Information

• Decided 07/23/2007
• Published 07/23/2007

Judges

• BAXTER, J.

Court

• Supreme Court of California

Counsel

• For Appellees:
  
• Redwine & Sherill, Justin M. McCarthy, Scott R. Heil, Riverside;  Berger & Norton, Michael M. Berger, Gideon Kanner, John T. Fogarty, Los Angeles;  Matteoni, Saxe & O'Laughlin, Matteoni, O'Laughlin & Hechtman, Norman E. Matteoni, San Jose, Peggy M. O'Laughlin and Gerry Houlihan, San Jose, for Defendants and Appellants., Jenny, Jenny & Jenny and Scott E. Jenny, Martinez, as Amici Curiae on behalf of Defendants and Appellants., Sullivan, Workman & Dee, Roger M. Sullivan and Gary A. Kovacic as Amici Curiae on behalf of Defendants and Appellants., Palmieri, Tyler, Wiener, Wilhelm & Waldron and Patrick A. Hennessey, Irvine, as Amici Curiae on behalf of Defendants and Appellants., Law Offices of Peter D. Lepiscopo, Peter D. Lepiscopo, San Diego, and James M. Griffiths for Pacific Justice Institute as Amicus Curiae on behalf of Defendants and Appellants., James S. Burling, Sacramento, for Pacific Legal Foundation as Amicus Curiae on behalf of Defendants and Appellants., Jeffrey Kightlinger, Henry S. Barbosa, Lauren R. Brainard, Karen Tachiki, Sydney B. Bennion, Joseph A. Vanderhorst;  Cox, Castle & Nicholson, Kenneth B. Bley, Los Angeles, and Edward C. Dygert, Irvine, for Plaintiff and Respondent., Janet Morningstar, Newport Beach, for Municipal Water District of Orange County as Amicus Curiae on behalf of Plaintiff and Respondent., Myers, Widders, Gibson, Jones & Schneider and Katherine E. Stone, Ventura, for League of California Cities, California State Association of Counties and Association of California Water Agencies as Amici Curiae on behalf of Plaintiff and Respondent., Ferguson, Case, Orr, Paterson & Cunningham, Douglas E. Kulper and Sandra M. Robertson, Ventura, for Calleguas Municipal Water District as Amicus Curiae on behalf of Plaintiff and Respondent.