Middlesex. Petition filed in the Superior Court on August 16, 1973. The case was heard by John P. Sullivan, J. The Supreme Judicial Court granted a request for direct appellate review.
Hennessey, C.j., Braucher, Kaplan, Wilkins, & Liacos, JJ.
Damages, Eminent domain, Remittitur. Value. Eminent Domain, Damages. Evidence, Value. Practice, Civil, Entry of judgment, New trial, Directed verdict, Judgment notwithstanding verdict, Appeal. Verdict, Special verdict. Judgment, Notwithstanding verdict, Correction of judgment.
The opinion of the court was delivered by: Wilkins
The finality of a judgment for purposes of appeal was not affected by the conditional allowance of a motion for a new trial. [655-656]
In an eminent domain proceeding the Judge did not abuse his discretion in reserving his decision whether to admit evidence of value based on a reasonable prospect of a zoning change by admitting such evidence during trial, then submitting special questions to the jury and entering judgment notwithstanding the verdicts. 
In an eminent domain proceeding the Judge did not abuse his discretion in concluding that there was no reasonable prospect that zoning restrictions against the use of certain premises for multi-family purposes would be lifted. [656-657]
Under Mass. R. Civ. P. 59 (a), a Judge has discretion to order a remittitur to bring the verdict anywhere within the range of verdicts supported by the evidence and is not limited to reducing the verdict to the highest amount which the jury could warrantably have found. [658-662]
On April 18, 1972, the Stoneham Housing Authority (authority) took from the plaintiffs approximately four acres of vacant land (premises) for a housing project. The plaintiffs commenced this action to recover damages for the taking. The premises are in a single residence zoning district in which multi-family residential uses are forbidden, except that, pursuant to a July 6, 1971, zoning amendment, the Stoneham board of appeals may grant a special exception for an "elderly housing project."
Before any testimony was introduced, counsel advised the Judge that the plaintiffs intended to offer evidence concerning the prospect of a zoning change applicable to the premises and that the plaintiffs' expert was intending to give an opinion of the value of the premises based on his belief that there was a reasonable prospect that zoning restrictions against the use of the premises for multi-family purposes could be lifted. The Judge asked for an offer of proof. The plaintiffs indicated that their evidence would show that, even before the taking, the authority had obtained a special permit to construct housing for the elderly on the premises; that the authority had other projects in the vicinity of the premises; that the town had changed the zoning of certain areas to permit multi-family uses; and that, as stated earlier, their expert would testify that there was a reasonable prospect of a relevant zoning change.
The Judge considered our opinion in Skyline Homes, Inc. v. Commonwealth, 362 Mass. 684 (1972), where we noted various circumstances in which a reasonable prospect of a zoning change might be found. He recognized that he had a measure of discretion to admit or to exclude evidence of value based on a reasonable prospect of a zoning change. He noted also that there was no indication that a town board or committee had recommended a change of zoning for the premises, that there had been no rezoning in the vicinity of the premises which would help a private landowner, and that there was no indication of a change in the character of the surrounding area. Counsel for the authority presented examples of proposed zoning changes on which the town meeting had not acted favorably. He pointed out that in March, 1973, the town meeting had voted, 202 to 14, to amend the zoning by-law to impose a moratorium until June 30, 1975, on the construction of apartment houses in the town. He stressed the fact that, with the exception of one parcel surrounded by less restrictive zoning, from 1966 to the time of trial (April, 1976), the town had not acted favorably on any proposal to change land from a single family to a multiple dwelling district.
The Judge concluded that, if he were the trier of fact, he would not find a reasonable prospect of a lifting of the zoning restriction. However, he decided to let the trial proceed, prepared to rule on the admissibility of evidence concerning the prospects of a zoning change as the trial progressed.
At the beginning of the second day of testimony, the Judge decided, on his own motion, to admit all evidence bearing either way on the likelihood of a zoning change, and to submit three special questions to the jury under Mass. R. Civ. P. 49 (a), 365 Mass. 812 (1974). These questions would ask the jury (1) to give the fair market value of the premises under then existing zoning; (2) to decide whether on the date of the taking there was a reasonable prospect of a zoning change; and (3) if there were such a prospect, to find the fair market value of the premises. He did this to avoid the necessity of a new trial, if an appellate court should determine that it was error to disregard the plaintiffs' evidence of value based on a reasonable prospect of a zoning change. The Judge made it clear that he would probably decline to enter a judgment based on an affirmative answer to the second question. The Judge indicated that he intended to reserve his power ultimately to exercise his discretion to exclude evidence of the prospects of a zoning change from proper consideration, until after the questions were answered. The trial continued accordingly.
The plaintiffs' expert testified to a value of the premises of $100,000, giving recognition to a reasonable probability of a zoning change. He also testified that the fair market value of the premises was $61,500, under the zoning restrictions in effect at the time of the taking. One of the plaintiffs gave $120,000 as his opinion of the value of the premises on the date of the taking. The authority's expert testified to a value of ...