dissenting.
While I agree that the Palizzis are entitled to compensation for the strip of their land condemned by Brighton (even though rezoning would require its cession to the city for nothing), I do not believe they are entitled to be compensated at a market rate commensurate with a use to which that strip could never be put. Although the majority's analysis is couched in terms of discretion to admit or exclude valuation evidence, it necessarily implicates the legal standard for proving value in a partial taking situation and, therefore, the materiality of particular valuation evidence. Because the condemned strip of property at issue could, as a matter of law, never have been rezoned for mixed commercial and residential purposes without a waiver by Brighton of its dedication requirement, I (like the court of appeals) would find that purpose or use to be one which the jury should never have been permitted to consider and as to which valuation evidence should never have been admitted. I therefore respectfully dissent.
The parcels of land in question could, by governmental agreement between the city and county, be rezoned and developed only upon annexation by Brighton. It is undisputed in this case that, as a pre-condition of any such annexation and rezoning, the city both could and would require the Palizzis, as it had done with all other owners of land contiguous to Bromley lane, to dedicate to the city the particular strip of land being valued in this action and that this condemnation satisfies the current dedication requirement for the Palizzis'® remaining land. Under these undisputed facts, in the absence of some legal fiction to the effect that the greater parcels could be rezoned first and only then the strip in question dedicated, the condemned strip could never, even momentarily or conceptually, exist as part of a greater parcel entirely zoned for mixed commercial/residential use. Therefore no willing buyer could, even in theory, have any prospect of purchasing a greater rezoned parcel that included this strip.
The majority does not directly dispute this reasoning but would nevertheless permit a trier of fact to value the condemned strip as commercial/residential property for the reason that prior to condemnation it was included within parcels, the remainders of which could be rezoned and developed for that purpose upon its dedication. As I understand its opinion, the majority believes that whenever it would be advantageous to the owner, property being condemned may be assigned a proportionate share of the value of a greater parcel within which it is included, and the decision whether to do so must remain with the finder of fact. I consider this proposition to be not only a misreading of our existing law but, at least whenever differences in legal status preclude the condemned portion from having the same "highest and best use" as the remainder, in fact a violation of it.
Even the intermediate appellate court opinion upon which the majority rests its characterization of the law of this jurisdiction would not sanction the majority's analysis. In City of Westminster v. Jefferson Center Associates, 958 P.2d 495 (Colo.App.1997), the court of appeals actually found it to be error to force the commission to value the portion of a parcel taken as a part of the whole when that portion potentially had a highest and best use making it more valuable by acreage than the greater parcel of which it was a part. Equally importantly, however, the ap*968pellate court in Jefferson Center Associates would only have left to the fact finder the question of uniformity-whether to value the taken portion separately or as part of the whole-because any disparity in the highest and best uses of the condemned portion and the remainder of the parcel was a purely factual question in that case, dependent entirely upon possible differences in location and other physical characteristics of the respective parcels. An intermediate appellate court holding is of course not authoritative for this court, but even if it were, the holding of Jefferson Center Associates in no way suggests that a fact finder must be permitted to disregard undisputed differences in legal status which necessarily destroy the uniformity of the parcel.
I also believe that with the sole exception of Nevada, the out-of-state authorities relied on by the majority offer no support for its valuation theory. Rather than leaving the import of legal restrictions to a trier of fact, these cases simply uphold court rulings admitting evidence of dedication requirements offered by condemning authorities themselves in support of their own appraisals. See State ex rel. Dep't of Transp. v. Lundberg, 312 Or. 568, 825 P.2d 641 (1992); Dep't of Pub. Works & Bldgs. v. Exch. Nat'l Bank of Chicago, 40 Ill.App.3d 628, 1 Ill.Dec. 250, 356 N.E.2d 376 (1976). The authorities from Missouri, in particular, clearly apply a "before and after" method of valuation which, even according to Jefferson Center Associates, 958 P.2d at 500, is not accepted as a measure of damage in partial taking situations in this jurisdiction. State ex rel. Mo. Highway & Transp. Comm'n v. Modern Tractor & Supply Co., 839 S.W.2d 642 (Mo.Ct.App.1992); State ex rel. Mo. Highway & Transp. Comm'n v. Sturmfels Farm Ltd. P'ship., 795 S.W.2d 581 (Mo.Ct.App.1990). Perhaps most significantly, however, the authorities from Missouri appear to contemplate, depending upon the constitutionality of the requirement itself and the actual likelihood of rezoning and dedication in the future, that the owner may suffer no damage as a result of the condemnation and therefore that he may be entitled to no compensation whatsoever. See Modern Tractor, 839 S.W.2d at 653; Sturmfels Farm, 795 S.W.2d at 588.
Only Nevada offers support for the majority's position, see City of N. Las Vegas v. Robinson, 122 Nev. 527, 134 P.3d 705 (2006), and from its brief explanation, I think it clear that Nevada makes the same conceptual error as the majority. As the majority notes, just compensation is measured by the actual fair market value of the condemned property, taking into consideration its most advantageous use at the time of the condemnation; and in the event of a partial taking, the condemned portion should be valued as a part of the entire parcel, "so long as the property is sufficiently uniform." Maj. op. at 962. When the highest and best use of a parcel is not uniform throughout, there is authority for the proposition that the condemned portion may be valued for a more advantageous use to which it could reasonably be put, see Jefferson Ctr. Assocs., 958 P.2d at 501 (quoting Dep't of Trans. v. HP/Meachum Land Ltd. P'ship, 245 Ill.App.3d 252, 185 Ill.Dec. 351, 614 N.E.2d 485, 487-88 (1993)), but we have never suggested that it could be valued for a use to which it could never be put merely because other portions of the parcel could be put to that higher use.
The condemned portion of a greater parcel can be valued as part of the whole only for a highest and best use that is legally and factually uniform throughout the tract. I believe the majority's attempt to enhance the value of the condemned strip in this case by valuing it as part of a non-uniform parcel violates our prohibition against valuing condemned property for fictitious or speculative uses and gives the owner a windfall at the expense of taxpayers. And while the question of factual uniformity may be one for the trier of fact, the legal import of undisputed zoning and dedication requirements severing one portion of a parcel as a condition of rezoning the remainder must be determined by the court. The evidence in this case established that the highest and best use to which the greater parcels in question could uniformly be put-without simultaneously severing the strip condemned by Brighton-is agricultural.
*969Because I believe the majority not only blurs the distinction between matters of fact and matters of law with regard to zoning and dedication requirements but, even more fundamentally, misperceives the law governing valuation of a portion as a part of the whole, T respectfully dissent.
I am authorized to state that Chief Justice MULLARKEY and Justice MARTINEZ join in this dissent.