Department of Transportation v. Haggerty Corridor Partners Ltd. Partnership

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 15, 2005

MICHIGAN DEPARTMENT OF
TRANSPORTATION,

Plaintiffs-Appellee,

v No. 124765

HAGGERTY CORRIDOR PARTNERS
LIMITED PARTNERSHIP, PAUL D.
YAGER, trustee, also known as
PAUL D. YEGER, and NEIL J. SOSIN,

Defendants-Appellants.
_______________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.

Defendants own land that was partially taken in

condemnation proceedings initiated by plaintiff. At issue

is whether the trial court properly allowed defendants to

present, in support of their proffered calculation of just

compensation, evidence that their property had been

rezoned from residential to commercial after the taking.

We conclude that the evidence of the posttaking

rezoning was irrelevant to the issue of the condemned

property’s fair market value at the time of the taking.

Because the trial court abused its discretion in admitting
this evidence, and because the error was not harmless, we

affirm the judgment of the Court of Appeals, which

reversed the jury’s verdict and remanded the case for

further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Defendant Haggerty Corridor Partners Limited

Partnership owned approximately 335 acres of an

undeveloped tract of land in Novi, Michigan, which it had

assembled for the future purpose of building a high-tech

office park. Plaintiff, the Michigan Department of

Transportation (MDOT), sought to condemn approximately

fifty-one acres of this property for construction of a

portion of the M-5 Haggerty Road Connector in the city of

Novi. As required under MCL 213.55,1 MDOT provided

defendants with a good-faith offer of $2,758,000 for the

property, based on its then-applicable single-family and

agricultural zoning classification.2 Defendants, believing

1
MCL 213.55(1) requires a condemning agency, before
initiating negotiations for the purchase of property, to
make a “good faith written offer” based on the agency’s
appraisal of just compensation for the property.
2
At the time, the property was zoned by the city of
Novi for single-family homes and agricultural uses (R-A
Residential/Acreage). In May 1998, approximately two and
Footnotes continued on following page.
2
that the property’s “highest and best use”3 was commercial

rather than residential, refused MDOT’s offer.

In December 1995, MDOT initiated an eminent domain

proceeding under the Michigan Uniform Condemnation

Procedures Act (UCPA)4 to condemn the property. At trial,

as might be expected, the parties presented widely

divergent evidence with respect to just compensation.

Consistent with its theory that the highest and best

use of the property was residential, MDOT presented

evidence that, at the time of the taking, the property was

not likely to be rezoned to permit the commercial use

proposed by defendants.5 MDOT’s appraiser testified that

one-half years after the taking occurred, Novi rezoned the
property for office/service/technology uses (OST).
3
“‘Highest and best use’ is a concept fundamental to
the determination of true cash value. It recognizes that
the use to which a prospective buyer would put the
property will influence the price that the buyer would be
willing to pay.” Edward Rose Bldg Co v Independence Twp,
436 Mich 620, 633; 462 NW2d 325 (1990). Thus, a condemnee
is generally entitled to compensation based on the
“highest and best use” of his property. St Clair Shores v
Conley, 350 Mich 458, 462; 86 NW2d 271 (1957).
4
MCL 213.51 et seq.
5
For example, MDOT presented the testimony of Novi’s
chief planning consultant that, in 1993, the planning
commission recommended that the parcel not be rezoned
commercial. The consultant further testified that, as of
the date of the taking, there was no plan to rezone the
Footnotes continued on following page.
3
it was economically feasible to develop the parcel, both

before and after the taking, as a residential subdivision,

and that, in 1995, it was not reasonably possible that the

land would be rezoned for commercial use. On the basis of

an estimation that defendants’ land would support

development of fifty-four residential lots, MDOT’s

appraiser testified that the difference in the value of

defendants’ property before and after the taking amounted

to $1,415,000.

Defendants, on the other hand, sought to establish

that they, along with other knowledgeable participants in

the commercial real estate market, knew at the time of the

December 1995 taking that the property was likely to be

rezoned to allow for its planned use as an office park.6

Defendants’ appraiser testified that the land could not

have been profitably developed as residential property,

and that rezoning was imminent at the time of the taking.

property because of the demand for large-lot, million-
dollar homes.
6
For example, defendants presented evidence that city
officials had made representations concerning their
interest in rezoning the area to accommodate business
interests and that, at the time of the taking, Novi’s
economic development coordinator was already involved in
the planning for an OST zoning classification to
accommodate defendants’ planned use of their property. At
the time of the taking, however, defendants had not
petitioned the city to have the land rezoned.

4

Against this backdrop, defendants’ appraiser arrived at a

just compensation figure of $18.6 million.

Consistent with their theory that the fair market

value of the residential property on the date of the

taking was increased because of the realistic prospect

that it would soon be rezoned commercial, defendants

sought to introduce evidence of the fact that the property

had, in fact, been later rezoned. Defendants wished to

show that in May 1998, approximately two and one-half

years after the taking occurred, defendants’ property was

rezoned for office/service/technology (OST) uses. MDOT

filed a motion in limine to bar this evidence, arguing

that it was irrelevant to the fair market value of the

property as of the date of the taking. The trial court

denied MDOT’s motion. Additionally, the trial court

refused to grant MDOT’s alternative request to present

evidence that the rezoning took place solely as a result

of the taking.7

7
Evidence of value related solely to the taking
itself, including evidence of a rezoning that occurs
because of the taking, is not admissible for just
compensation purposes. See MCL 213.70(1); Silver Creek
Drain Dist v Extrusions Div, Inc, 468 Mich 367, 378 n 13;
663 NW2d 436 (2003), citing In re Urban Renewal, Elmwood
Park Project, 376 Mich 311, 318; 136 NW2d 896 (1965) (“The
Footnotes continued on following page.
5
 At MDOT’s request, the jury was taken on a bus tour

of defendants’ property. The parties vigorously dispute

what the jurors saw on this tour. MDOT contends that the

jurors saw mainly an undeveloped tract with some

commercial buildings under construction on a portion of

the property. Defendants contend, on the other hand, that

the jurors saw many completed office buildings on the

developed portion of the property and that only a small

portion of the property remained undeveloped. There is no

record to support either party’s contention.

The jury was instructed that fair market value must

be assessed as of the date of the condemnation, and not as

of some future date. The jury was further instructed,

with respect to the zoning reclassification, that

if there was a reasonable possibility, absent the
threat of this condemnation case, that the zoning
classification would have been changed, you
should consider this possibility in arriving at
the value of the property on the date of the
taking.

The jury determined that just compensation was owed to

defendants in the amount of $14,877,000.

On appeal to the Court of Appeals, MDOT contended

that the trial court erred in denying its motion to

effect on market value of the condemnation proceeding
itself may not be considered as an element of value.”).

6

exclude evidence of the posttaking rezoning decision and

in further prohibiting MDOT from introducing evidence

establishing that the zoning change was caused by the

condemnation itself. The Court of Appeals majority agreed

that the trial court abused its discretion in allowing the

jury to consider evidence of the posttaking zoning change

and that the error was not harmless:

The subject property was to be valued “as
though the acquisition had not been
contemplated.” MCL 213.70(1). Plaintiff
attempted to introduce evidence establishing that
the subject property was rezoned because of the
condemnation. If so, the actual rezoning was
irrelevant. Indeed, the value of condemned
property should have been determined without
regard to any enhancement or reduction of the
value attributable to condemnation or the threat
of condemnation. State Highway Comm v L & L
Concession, 31 Mich App 222, 226-227; 187 NW2d
465 (1971). Defendants were not entitled to the
enhanced value that resulted from the
condemnation project, only the value of the
property at the time of taking. In re Urban
Renewal, Elmwood Park Project, 376 Mich 311, 318;
136 NW2d 896 (1965). Although the potential for
rezoning on the date of taking was properly
considered, evidence of the actual zoning change
was irrelevant to the value of the property on
the date of taking and should not have been
disclosed to the jury. Moreover, we agree with
plaintiff’s contention that the evidence
improperly contributed to the jury’s finding that
the rezoning was reasonably possible. At the
very least, the improperly admitted evidence
tainted the jury's resolution of the “reasonable
possibility” question of fact. Therefore, we
conclude that the trial court abused its
discretion in admitting the evidence.

7

 We reject defendants’ contention that the
evidentiary error was harmless. Had the evidence
not been admitted, it is unlikely that the jury
would have been exposed to the evidence that
defendants now claim renders the improperly
admitted evidence harmless.[8] Consequently, we
deem it appropriate to reverse and remand for
further proceedings.[9] [Unpublished opinion per
curiam of the Court of Appeals, issued July 22,
2003 (Docket Nos. 234099, 240227), slip op, p 3.]

The dissenting judge opined that the evidence was

properly admitted:

As the trial court concluded, evidence of
the actual rezoning had the tendency to make the
existence of the possibility of rezoning more
probable than it would be without the evidence.
MRE 401. More importantly, however, is the fact
that there is no Michigan case on point regarding
the admissibility of the subsequent fact of
rezoning, and our Sister States’ case law provide
[sic] divergent views. However, one respected
source (also cited by the trial court) indicates
that “[t]he fact that, subsequent to the taking,
the zoning ordinance was actually amended to
permit the previously proscribed use has been
held to be weighty evidence of the existence (at
the time of the taking) of the fact that there
was a reasonable probability of an imminent
change.” 4 Nichols, Eminent Domain (3d ed), §
12C.03[3]. Accordingly, it cannot be said that

8
Defendants contended that the posttaking rezoning
evidence was merely cumulative of the jurors’ bus tour of
the property, because, in light of the extensive
commercial development present on the property at the time
of the tour, it was evident that the property had already
been rezoned to allow for commercial uses.
9
In light of its conclusion, the majority did not
address MDOT’s contention that the trial court further
abused its discretion in prohibiting it from introducing
evidence that the rezoning was caused by the condemnation.

8

 the decision to admit the evidence was an abuse
of discretion when no prior case has so held, and
there is respected authority that favors the
ruling made by the trial court.

Moreover, even if the admission of the
evidence was an abuse of discretion, it was
harmless error in light of the jury instructions
and other competent, admissible evidence that
allowed the jury to properly conclude that
rezoning was a reasonable possibility. Here, the
jury was presented with sufficient evidence
regarding whether there was a reasonable
possibility that the subject property would be
rezoned, independent of the evidence of the
actual rezoning, a fact which the majority
concedes. Further, the trial court properly
instructed the jury on the principles of
condemnation law set forth by the majority, and
repeatedly stressed the principle that the jury
must value the property as of the date of the
condemnation, rather than at some future date
. . . . [Murray, J., dissenting, slip op, pp 2-3
(citations omitted).]

The dissent further rejected MDOT’s alternative

argument that the trial court erred in refusing to allow

it to introduce evidence establishing that the rezoning

was directly attributable to the condemnation proceedings.

Judge Murray noted that MCL 213.73, which allows

enhancement in value of the remainder of a partially

condemned parcel to be considered in determining just

compensation, was inapplicable and did not serve to permit

MDOT to introduce this evidence because MDOT did not plead

in its complaint that defendants’ property was enhanced

9

because of the improvement.10 Thus, Judge Murray opined,

the majority’s decision “effectively ignores the fact that

defendants’ evidence directly relates to the ‘reasonable

possibility’ that rezoning of the property would be

effectuated.” Id. at 4.

This Court granted defendants’ application for leave

to appeal, limited to the issues “(1) whether a posttaking

zoning decision can be considered in determining value at

the time of the taking, and (2) whether the Court of

Appeals decision in this case is consistent with Dep’t of

Transportation v [VanElslander], 460 Mich 127 [594 NW2d

841] (1999).”11 We would hold that the evidence of a

posttaking rezoning is irrelevant to a just compensation

determination, that the error in the admission of such

evidence in this case was not harmless, and that our

conclusion is wholly consistent with VanElslander, supra,

10
The dissent’s rationale here is difficult to
follow, and we agree with Justice Markman’s conclusion
that MCL 213.73 does not apply. See post at 29. As the
dissenting judge himself notes, MDOT made no “enhancement”
claim under MCL 213.73. Rather, it simply sought to
rebut defendants’ posttaking rezoning evidence with its
own evidence that the rezoning was caused by the
condemnation and, thus, could not properly be considered
in determining just compensation. See MCL 213.70(1), (2).
11
470 Mich 874 (2004).

10

and we affirm the judgment of the Court of Appeals

majority.

II. STANDARD OF REVIEW

Evidentiary rulings are reviewed for an abuse of

discretion.12 However, preliminary issues of law

underlying an evidentiary ruling are reviewed de novo.

See People v Lukity13 (“[T]he admission of evidence

frequently involve[s] preliminary questions of law, e.g.,

whether a rule of evidence or statute precludes

admissibility of the evidence. This Court reviews

questions of law de novo.”). A trial court abuses its

discretion when it admits evidence that is inadmissible as

a matter of law.14

III. ANALYSIS

A. INTRODUCTION

Const 1963, art 10, § 2 provides that “[p]rivate

property shall not be taken for public use without just

compensation therefor being first made or secured in a

12
VanElslander, supra at 129.

13
460 Mich 484, 488; 596 NW2d 607 (1999).

14
People v Katt, 468 Mich 272, 278; 662 NW2d 12

(2003).

11

manner prescribed by law.” The term “just compensation”

as used in our Constitution, as well as in the UCPA, is a

term of art that “imports with it all the understandings

those sophisticated in the law give it.”15 The concept of

just compensation “‘includes all elements of value that

inhere in the property,’”16 and must be determined on the

basis of all factors relevant to its cash or market

value.17

As we have recently had occasion to reaffirm, fair

market value is to be determined as of the date of the

taking. See Silver Creek, supra (“‘[A]ny evidence that

would tend to affect the market value of the property as

of the date of the condemnation’” is relevant in

determining just compensation.).18

In keeping with these venerated principles concerning

the calculation of just compensation, the UCPA

specifically provides that fair market value “shall be

15
Silver Creek, supra at 379.
16
Id. at 378, quoting United States v Twin City Power
Co, 350 US 222, 235; 76 S Ct 259; 100 L Ed 240 (1956)
(Burton, J., dissenting).
17
Silver Creek, supra at 377, quoting Searl v Lake Co
School Dist No 2, 133 US 553, 564; 10 S Ct 374; 33 L Ed
740 (1890).
18
Silver Creek, supra at 379, n 14, quoting
VanElslander, supra at 130.

12

determined with respect to the condition of the property

and the state of the market on the date of valuation.”19

The UCPA prohibits, however, the consideration of any

changes in market conditions that are substantially due to

the general knowledge of the imminent condemnation of the

property.20 Instead, with the exception of enhancement in

value of the remainder of a partially taken parcel,21 “the

19
See former MCL 213.70 (1980 PA 87), now MCL
213.70(3), amended by 1996 PA 474, effective December 26,
1996 (emphasis supplied). The 1996 amendment of MCL
213.70, which took effect after the condemnation complaint
was filed in this case, does not contain any substantive
changes that would affect our analysis in this case.
20
See former MCL 213.70 (1980 PA 87), now MCL
213.70(1), (3), amended by 1996 PA 474, effective December
26, 1996.
21
See MCL 213.73, which provides, in part:

(1) Enhancement in value of the remainder of
a parcel, by laying out, altering, widening, or
other types of improvements; by changing the
scope or location of the improvement; or by
either action in combination with discontinuing
an improvement, shall be considered in
determining compensation for the taking.

(2) When enhancement in value is to be
considered in determining compensation, the
agency shall set forth in the complaint the fact
that enhancement benefits are claimed and
describe the construction proposed to be made
which will create the enhancement. . . .

* * *
Footnotes continued on following page.
13
property shall be valued in all cases as though the

acquisition had not been contemplated.”22

B. POSSIBILITY OF REZONING AS A FACTOR AFFECTING JUST COMPENSATION

A condemned parcel’s fair market value must be

determined “‘“based upon a consideration of all the

relevant facts in a particular case.”’”23 Accordingly,

(4) The agency has the burden of proof with
respect to the existence of enhancement benefits.

As explained in note 10 of this opinion, this portion
of the UCPA is inapplicable to this dispute. MDOT raised
no argument that the award of just compensation had to
reflect any enhancement to the remainder of defendants’
property by virtue of the condemnation.

It must be noted that the principles set forth in MCL
213.70 and 213.73, as well as the principles we today set
forth, are wholly reciprocal. Just as MCL 213.73 allows
the condemning agency to offset the fair market value of
partially taken property by the increased value to the
remainder, MCL 213.70(3) allows the property owner to seek
increased just compensation on the basis of the
devaluation of his remaining property due to the taking.
Similarly, just as our holding today precludes a property
owner from seeking increased just compensation on the
basis of an ex ante event, it also precludes the
condemning agency from paying a reduced amount on the
basis of such an event. See note 34 of this opinion.
22
See former MCL 213.70 (1980 PA 87), now MCL
213.70(1), amended by 1996 PA 474, effective December 26,
1996.
23
Silver Creek, supra at 378, quoting In re Widening
of Gratiot Ave, 294 Mich 569, 574; 293 NW 755 (1940),
quoting In re Widening of Michigan Ave, 280 Mich 539, 548;
237 NW 798 (1937); see also State Hwy Comm’r v Eilender,
362 Mich 697, 699; 108 NW2d 755 (1961).

14

evidence demonstrating the likelihood of a zoning

modification, just like any number of circumstance that

may affect a property’s value on the open market, may be

relevant in determining just compensation. However,

because just compensation must be calculated on the basis

of the market value of a property on the date of the

taking, the relevance of any such evidence is wholly

dependent on whether, and how, the particular factor at

issue would have affected market participants on that

date.

Our case law is quite clear in this regard. As we

noted in State Hwy Comm’r v Eilender:24

We look at the value of the condemned land
at the time of the taking, not as of some future
date. If the land is then zoned so as to exclude
more lucrative uses, such use is ordinarily
immaterial in arriving at just compensation.
But, on the other hand, it has been held, “if
there is a reasonable possibility that the zoning
classification will be changed, this possibility
should be considered in arriving at the proper
value. This element, too, must be considered in
terms of the extent to which the ‘possibility’
would have affected the price which a willing
buyer would have offered for the property just
prior to the taking.” [Emphasis supplied.]

24
362 Mich 697, 699; 108 NW2d 755 (1961), quoting
United States v Meadow Brook Club, 259 F2d 41, 45 (CA 2,
1958).

15

Thus, we concluded in Eilender that a nonfrivolous,

nonspeculative “reasonable possibility” of a zoning

change, as evidenced by an already pending zoning

modification, could properly be considered in determining

just compensation.25

Similarly, we held in VanElslander, supra, that the

trial court abused its discretion in refusing to allow

plaintiff MDOT to present into evidence an appraisal of

the condemnees’ property that was based on the possibility

that a zoning variance could be obtained to cure the

violations created by the condemnation. Noting that “‘any

evidence that would tend to affect the market value of the

property as of the date of condemnation is relevant,’”26 we

held that the possibility of obtaining a variance, just

like the possibility of a zoning modification, may be

relevant to the just-compensation determination. We

stressed, however, that such evidence was only relevant to

the extent that it aided the fact-finder in determining

25
Eilender, supra at 700.
26
VanElslander, supra at 130, quoting the Court of
Appeals dissent.

16

“‘“the price which a willing buyer would have offered for

the property just prior to the taking . . . .”’”27

Applying these longstanding principles as reaffirmed

in Eilender, VanElslander, and Silver Creek, we would hold

that the trial court here committed an error of law, and

thus abused its discretion,28 when it denied MDOT’s motion

to exclude evidence of the posttaking zoning modification.

We of course agree with the Court of Appeals dissent,

and with our dissenting colleagues,29 that relevant

evidence is “evidence having any tendency to make the

existence of any fact that is of consequence to the

determination of the action more probable or less probable

than it would be without the evidence.”30 Where we believe

the dissenters have gone astray is in misidentifying the

“fact that is of consequence.”

27
Id. at 131, quoting Eilender, supra at 699
(emphasis supplied).
28
See Katt, supra at 278.
29
Our responses to the “dissent” refer to Justice
Markman’s opinion. Although Justice Weaver has also
issued a dissent, this dissent does nothing more than
reiterate, in abridged fashion, the opinion of Justice
Markman.
30
MRE 401.

17

 The dissenters frame this consequential fact as the

existence of a “reasonable possibility” that the property

would be rezoned. See post at 4. The possibility of a

zoning modification must, indeed, be a “reasonable” one in

order, as a matter of logic, for it to have any bearing on

fair market value. However, this is only part of the

equation. The “reasonable possibility” of a zoning change

bears on the calculation of fair market value only to the

extent that it could have affected the price that a

theoretical willing buyer would have offered for the

property immediately prior to the taking.31 Thus, the

“fact that is of consequence” is the reasonable

possibility of a zoning modification, as that possibility

might have been perceived by a market participant on

condemnation day.32

31
See VanElslander, supra at 130; Eilender, supra at
699; In re Widening of Gratiot Ave, supra.
32
Justice Markman purports to agree that “‘the “fact
that is of consequence” is the reasonable possibility of a
zoning modification, as that possibility might have been
perceived by a market participant on condemnation day.’”
Post at 8, n 8. Yet his analysis completely ignores the
italicized phrase, which is critical to the just-
compensation inquiry. A market participant in December
1995 would have had absolutely no way of knowing that the
subject property would have been rezoned two and one-half
years later. Moreover, as we have pointed out, the
objective probability that something will occur in the
Footnotes continued on following page.
18
 Any information that was available at the time of the

taking may certainly be relevant in determining the price

that a property might fetch on the day of the taking. For

example, in this case, defendants were properly permitted

to present evidence that they had met with city officials

regarding their plans for the area, and that these

officials had expressed a willingness to make the required

zoning changes; that the Novi Chamber of Commerce and

other members of the business community supported the

proposed zoning change; that Novi’s Economic Development

Coordinator, Greg Capote, did not believe that the

property was suitable for single-family development; that

there was a dire need for zoning to accommodate high-tech

office development; and that, at the time of the taking,

Capote was already involved in the planning for an OST

zoning classification to accommodate this type of

development. All of this evidence pertains to information

that might have affected the value of the property as of

the date of condemnation, December 7, 1995. Indeed, at

the time defendants acquired their Novi property,

beginning in 1988, the property was more valuable in their

future is in no way dependent on what actually occurs
after that probability is calculated.

19

eyes because of the looming possibility of a future zoning

change.33

In contrast, a posttaking event or occurrence is

utterly irrelevant to the calculation of just

compensation. Market participants are, as a general rule,

not omniscient, and would not be aware on the date of the

taking that a posttaking event is absolutely certain to

occur.34 A posttaking occurrence cannot possibly affect

the fair market value of property on the day of the

condemnation, because the occurrence has not yet come to

pass and, thus, cannot contribute to the mass of

information affecting the market value of the property on

33
Of course, as of the date of the taking, December
7, 1995, defendants had not even made a formal request for
a zoning change.
34
Consider the stock market. The price of a given
share is often affected by available information. The
value of a share may decrease, for example, as rumors
spread that a company’s chief operating officer might be
indicted for a crime related to the operation of the
business. Similarly, during the preindictment period,
that share’s value may rise or fall depending on
investors’ perceptions regarding the probability that an
indictment is or is not imminent. The fact that the
officer is, in fact, indicted, however, does not and
cannot have any bearing on the market price of the share
on the day before the day the officer is indicted. The
fact of the actual indictment is, then, quite irrelevant
in determining why the share was trading at a given price
on the day before the indictment was filed. Rather, it
was merely the speculation concerning the indictment that
made the stock price fluctuate.

20

that day. In short, a posttaking zoning change is

irrelevant to the just compensation calculation because it

does not make the fact of consequence——that information

regarding the reasonable possibility of a zoning change

may have impacted the market value of property on the date

of the taking——more probable or less probable.35

The trial court’s ruling and the Court of Appeals

dissenting position on the admission of posttaking

35
The error of defendants’ position is evident when
one considers that it makes fair market value wholly
dependent on extraneous temporal considerations: when the
condemnation trial occurs and when, if ever, a zoning
change occurs. For example, suppose that identical
adjoining properties, separately owned, are zoned
residential on the day that each is condemned. Suppose
that one trial occurs two months before the properties are
rezoned commercial, while the other trial does not occur
until after the rezoning. The first property owner to go
to trial will, of course, not be able to present to the
jury evidence that the property was actually rezoned. The
second property owner, however, will be in a position to
argue that the fact that the rezoning actually occurred
increased the probability, on the day of the taking, that
the rezoning was going to occur, and, in turn, that a
higher fair market value must be assigned to that
property. This illustrates the incongruity of defendants’
position: The two properties, on the day of the taking,
had precisely the same probability of being later rezoned;
yet the second owner, solely by virtue of the later trial
date, will be permitted to present evidence to show that
not only was there a “reasonable possibility” of rezoning,
but future rezoning was an absolute certainty. Aside from
the obvious logical error of defendants’ position,
adopting such a rule would also lead to gamesmanship and
strategic filing. Indeed, this rule would give condemning
agencies every incentive to postpone zoning plans in order
to reduce the price of just compensation.

21

evidence are informed by a common logical fallacy. As our

dissenting colleague, Justice Markman, argues: “That the

property was, in fact, rezoned makes it ‘more probable’

that a ‘reasonable possibility’ of rezoning existed at the

time of the taking. Post at 8. At its core, this

argument supposes that the probability of a particular

occurrence at a specific point in time is made stronger by

after-the-fact events.36 This fallacy presumes that a

zoning event occurring after the date of condemnation has

logical and legal relevance to the hypothetical “willing

buyer’s” calculation of the price of the property on the

condemnation date.

In order to understand the flaw in the probability

theory and rationale of the Court of Appeals dissent and

the trial court, it is important to remember the context

36
In the world of psychology, this phenomenon is
known as “hindsight bias,” whereby the subject, upon
learning that something occurred, overestimates the
ability to predict that that “something” would occur. See
(noting that
“[p]eople are, in effect, biased by the knowledge of what
has actually happened when evaluating its likelihood”).

Compare this flawed ex ante probability logic with
the common logical fallacy known, in the realm of
causation theory, as “post hoc ergo propter hoc” (“after
this, therefore because of this”). In each case, the
subject assigns inflated significance to an after-the-fact
event.

22

of the just compensation valuation goal. Although

condemnation results in a “forced sale,” the price the

condemning agency is required to pay must approximate that

price which a willing buyer would have offered for the

property at the time of the taking. Consequently, because

information concerning events occurring after the

condemnation could not possibly have influenced the

conduct of a willing buyer on the date of the taking, it

can never be logically, and thus legally, relevant in

determining the price that the theoretical willing buyer

and seller would have agreed upon on the date of the

taking.

Consider the application of this theory of

probability to an event–such as the toss of a die–the

probability of which is known. That a six is rolled after

one predicts this outcome does not increase the strength

of the prediction beyond the usual one-in-six chance of

being correct. However, contrary to conventional

probability theory, the proffered dissenting probability

theory suggests that the predictive force of a “six” call

is made stronger by the mere fact that the thrown die

actually revealed a six. It is hard to understand how

such a “back to the future probability theory” works any

23

more logically when an event less predictable than the

roll of a die is at issue.

While a posttaking change in zoning may suggest that

one party may have had a more astute prognostication of

local zoning practices, it cannot seriously be advanced

that a zoning change made after the taking could in any

way have influenced a “willing buyer’s” pricing decision

on the day of the taking. Only that which could

legitimately influence a buyer at the time of the taking

is legally and logically relevant to the amount of

compensation that must be paid for a taking. Because

events that occur after the taking fall outside this zone

of potential influence, they cannot logically and

therefore legitimately be considered in determining just

compensation.

This case well illustrates the illogic of admitting

evidence of postcondemnation events to influence the fact-

finder’s determination of just compensation under the

statute. Here, the change in zoning occurred two and one-

half years after the date of the taking. It is difficult

to envision how a theoretical “willing buyer” of

defendants’ property would have factored into his purchase

24

offer in 1995 a zoning decision made by Novi37 more than

two years after that date.38

As noted by the Court of Appeals dissent and by our

dissenting colleague, post at 17, 4 Nichols, Eminent

Domain (3d ed), § 12C.03[3], indicates that “‘[t]he fact

that, subsequent to the taking, the zoning ordinance was

actually amended to permit the previously proscribed use

has been held to be weighty evidence of the existence (at

the time of the taking) of the fact that there was a

reasonable probability of an imminent change.’”39 Although

37
As an aside, it must be remembered that it was the
city of Novi, and not the condemning authority (MDOT),
that rezoned this property. We are not, in this case,
concerned with any allegations of fraud or gamesmanship on
the part of the condemning agency (for example, by
delaying an inevitable rezoning decision in order to avoid
paying a higher amount as just compensation for a taking).
38
We stress again that it is not the probability of a
zoning change that is irrelevant to the just-compensation
determination. Indeed, we adhere to the rule, set forth
in Eilender and VanElsander, that evidence of the
reasonable possibility of a zoning change is admissible to
the extent that it aids in determining the fair market
value of the property at the time of the taking. Rather,
it is merely the fact of the posttaking zoning change that
is irrelevant, as it is of no import in determining “‘the
price which a willing buyer would have offered for the
property just prior to the taking . . . .’” VanElslander,
supra at 131, quoting Eilender, supra at 699.
39
Similarly, it is noted in 9 ALR3d 291, § 11 that
some courts have permitted the introduction of this type
Footnotes continued on following page.
25
it is true that some courts have, indeed, permitted the

introduction of posttaking rezoning evidence, for the

reasons we have expressed, we reject the reasoning

employed by these courts.40 We do not, for example, agree

with the New Jersey Supreme Court that evidence of a

posttaking zoning change may serve to “support the

reasonableness of the factual claim that on the date of

taking the parties to a voluntary sale would have

recognized and been influenced by the probability of an

of evidence, while other courts have rejected the
admission of such evidence.
40
While there is a dearth of case law on point,
Justice Markman has cited a small handful of foreign cases
supporting his position. It is far from evident that the
few cases cited in the Nichols text and in footnote 10 of
Justice Markman’s dissent, post at 10 n 10, represent a
majority rule. In any event, we are hardly compelled to
subscribe to the view of a few misguided courts. These
cases give lip service to the notion that it is fair
market value at the time of the taking that must guide the
determination of just compensation; yet, without providing
a satisfactory explanation for doing so, they sanction the
admission of evidence that is wholly irrelevant to market
status at that critical time. We choose, rather than
blindly to follow the lead of these few jurisdictions, to
adhere to the principles set forth in the UCPA and
developed under our Constitution. Moreover, as the
Nichols text itself recognizes, “[a]n important caveat to
remember in applying [the rule that the probability of
rezoning may be considered in determining just
compensation] is that the property must not be evaluated
as though the rezoning were already an accomplished fact.
It must be evaluated under the restrictions of the
existing zoning with consideration given to the impact
upon market value of the likelihood of a change in
zoning.” Nichols, supra at § 12C.03[2].

26

amendment in the near future in fixing the selling

price.”41 The issue, again, is whether the perception of

the existence of a market factor (such as the possibility

of an imminent rezoning) would change the amount that a

fictional buyer would be willing to pay on a given date.

The fact that something that was only a possibility on day

1 becomes a reality on day 2 is not relevant to fair

market value on day 1.42

Our dissenting colleague, as evidenced by his lengthy

discussion describing the “imperfect” nature of the

eminent domain procedure in calculating just compensation,

appropriately explains why condemnation, being a forced

41
New Jersey v Gorga, 26 NJ 113, 118; 138 A2d 833
(1958).
42
We note further that, perhaps fearful of misuse of
such evidence, the New Jersey court in Gorga stressed that
the posttaking zoning amendment at issue had to be
“carefully confined to its proper role” and could be
received only for the purpose of establishing the
reasonableness of the factual claim that market
participants would have been influenced by the possibility
of a future zoning change. Id. at 118. We think that
admission of posttaking zoning changes cannot be so easily
“confined.” After all, the jurors will have been told
that an event that was merely a possibility pretaking is
now a foregone conclusion.

Moreover, Justice Markman does not explain how to
limit his approach to only posttaking rezoning situations
(and not to the myriad other posttaking events that might
be argued to be somehow relevant to fair market value,
such as catastrophic property damage).

27

sale, can only approximate a real market real estate

transaction. Although we are certainly not unsympathetic

to the plight of the innocent landowner who is compelled

to sell its property to the public, the governmental power

of condemnation is one that is specifically condoned by

our Constitution and regulated by the UCPA.

Justice Markman’s proposal—that we allow in evidence

of posttaking events in order to counterbalance the

“artificial construct” of the hypothetical willing buyer

and seller—is not only inimical to the constitutional and

statutory duty to determine fair market value as of the

date of the taking; it is also illogical. We submit that

Justice Markman incorrectly assumes that the

inadmissibility of evidence of posttaking occurrences

leads to the invariable “detriment of the property owner”

and “the benefit of the government.” Post at 23.

Although the property owners in this particular case might

be benefited by the introduction of such evidence, the

converse would be true were the government permitted to

introduce evidence of posttaking events having a

diminishing effect on property value. It is not difficult

to imagine a situation in which a condemning authority

might seek to present, in connection with its just-

28

compensation calculation, evidence that the condemned

property was rezoned after the taking from commercial to

residential, resulting in a lower market value.43

B. HARMLESS ERROR

Defendants argue that any error was harmless because

MDOT requested that the jury view the property and

because, during the view, the jury saw evidence that a

commercial office park was being constructed on

defendants’ remaining property. The Court of Appeals

majority held that this evidence would likely not have

been admitted had defendants not been permitted to present

evidence of the posttaking rezoning. We disagree; MDOT’s

motion for a jury view was granted before the trial court

ruled that defendants could put on their valuation

experts. Moreover, we simply have no basis in the

existing record to determine what it was that the jury

actually saw, and the parties give radically divergent

opinions on this point.

43
Again, Justice Markman appears to be of the belief
that the condemning agency in this case is somehow
profiting, at defendants’ expense, from the rezoning
decision. Yet this case illustrates how misplaced is
Justice Markman’s supposition. In this very case it was
not plaintiff MDOT, but a third party—the city of Novi—
that made the rezoning decision.

29

 We nevertheless conclude that the error was not

harmless. Although the jury was properly instructed that

it was to determine fair market value as of the date of

the taking, it was not instructed that it was to consider

only the information extant at the time of the taking.

Rather, the jury no doubt believed that the fair market

value of the property on the date of the taking was to be

calculated as if rezoning were a fact, as it was at the

time of the trial.

More important, the trial court sorely compounded the

error by refusing to allow MDOT to rebut the posttaking

evidence by demonstrating that the rezoning was directly

attributable to the condemnation itself. In this regard,

we agree with our dissenting colleague that the trial

court erred in precluding the admission of such evidence.

See post at 1-2. As we have noted, the UCPA provides that

just compensation is not to be determined on the basis of

changes in market conditions that are substantially due to

the general knowledge of the imminent condemnation of the

property; rather, as MCL 213.70 provided at the time of

the filing of this condemnation action, “[t]he property

shall be valued in all cases as though the acquisition had

30

not been contemplated.”44 Thus, to the extent that

defendants presented any evidence supporting a change in

market value, MDOT should have been permitted to establish

that such a change in value was a result of the

condemnation of the property. Because MDOT was deprived

of this clear statutory right, the trial court’s initial

error in admitting the posttaking rezoning evidence was

inconsistent with substantial justice45 and, therefore, may

not be considered harmless. We thus affirm the judgment

of the Court of Appeals and remand this case for a new

trial.

IV. CONCLUSION

The trial court abused its discretion when it denied

MDOT’s motion to exclude evidence that defendants’

property was rezoned commercial after the property was

condemned. Such evidence is irrelevant to the critical

just compensation inquiry, which is what a willing buyer

would pay for the property on the date of the taking.

Because the trial court further compounded this error by

44
See former MCL 213.70 (1980 PA 87), now MCL
213.70(1), amended by 1996 PA 474, effective December 26,
1996.
45
MCR 2.613(A); see also Ward v Consolidated Rail
Corp, 472 Mich 77, 84; 693 NW2d 366 (2005).

31

refusing to allow MDOT to establish, as contemplated by

the UCPA, that the zoning change was effectuated by the

fact of the condemnation itself, the error in the

admission of the evidence was not harmless. We affirm the

decision of the Court of Appeals and remand for further

proceedings.

Robert P. Young, Jr.
Clifford W. Taylor
Maura D. Corrigan

32

 S T A T E O F M I C H I G A N

SUPREME COURT

MICHIGAN DEPARTMENT OF
TRANSPORTATION,

Plaintiff-Appellee,

v No. 124765

HAGGERTY CORRIDOR PARTNERS
LIMITED PARTNERSHIP, PAUL D.
YAGER, trustee, also known as
PAUL D. YEGER, and NEIL J. SOSIN,

Defendants-Appellants.
_______________________________

KELLY, J. (concurring).

In this case, we consider whether evidence of rezoning

after a taking is admissible to demonstrate that, when the

taking occurred, a reasonable possibility of rezoning

existed.1 We hold the evidence inadmissible.

The lead opinion by Justice Young concludes that the

evidence is inadmissible on the ground that it is

irrelevant. I disagree and believe that this view

erroneously constricts the definition of legal relevance by

placing a temporal constraint on it, whereas legal

relevance is an encompassing characteristic of evidence.

1
I use “taking” in this opinion synonymously with
“condemnation” to refer to the government’s expropriation
of private property from its owner for public use through
the power of eminent domain.
 A majority of the Court agrees that the evidence of

rezoning is relevant because it corroborates a fact that is

of consequence to the determination of the action: whether

there existed a reasonable possibility of rezoning at the

time of the taking. MRE 401.

A different majority agrees that the evidence is

inadmissible. However, my reasoning differs from the other

three justices comprising this majority. I would hold that

the inadmissibility of the evidence lies in the fact that

its probative value is substantially outweighed by its

prejudicial effect. MRE 403.

The admission of the evidence of rezoning unjustly

overwhelmed other relevant evidence that showed rezoning

was not reasonably likely and that the parcel’s reasonable

value was as residential property. The jury's

consideration of this evidence caused substantial injustice

to plaintiff. Accordingly, it was an abuse of the trial

court’s discretion to admit it, and the error was not

harmless.

I agree with the decision of the Court of Appeals to

set aside the jury verdict, although for slightly different

reasons. I also agree to remand the case for a new trial

at which the evidence that the property was rezoned after

the taking will not be admitted.

2

 UNDERLYING FACTS

This controversy concerns land on which a portion of

phase II of the M-5 Haggerty Road Connector in Novi was

built.2 Plaintiff Michigan Department of Transportation

filed a complaint under the Michigan Uniform Condemnation

Procedures Act (UCPA)3 to take the land by condemnation.

The land is part of a larger tract owned by defendant

Haggerty Corridor Partners Limited Partnership. The

partnership had aggregated the tract over time by acquiring

adjacent parcels in the expectation of future development.

The issue concerns the reasonable market value of the

land at the time of the taking. When it was expropriated,

the land was zoned residential-agricultural and was

undeveloped. At trial, defendants asserted that they had

planned to seek to have it rezoned to commercial use. They

hoped to develop the land into a technology park, as they

had done with a tract in nearby Farmington Hills.

Plaintiff made an offer to buy the land from

defendants based on its value for residential or

2
This portion of the Connector includes a north and
southbound roadway between Twelve and Fourteen Mile Roads,
west of Haggerty Road in the city of Novi, Oakland County.
3
MCL 213.51 et seq. All statutory references are to
the act as it existed at the time the condemnation
complaint was filed.

3

agricultural use, consistent with its zoning classification

at the time of the taking. Michigan law requires the

government to make a good-faith offer to purchase land for

its fair market value before filing a condemnation

complaint. MCL 213.55. Defendants rejected the offer.

They believed that the true market value was much higher

because there was a reasonable possibility that the land

would be rezoned for commercial use in the near future.

THE COURT PROCEEDINGS

Plaintiff filed its condemnation complaint on December

7, 1995. It again asserted that the fair market value of

the land was its value for residential purposes.

Defendants responded that the land was worth more than

plaintiff offered due to its potential for commercial use.

Plaintiff countered that rezoning was not reasonably

possible.

Defendants planned to present significant evidence to

show that rezoning for commercial use was reasonably

possible at the time of the taking. Key to their argument

was evidence that the portion of the tract not condemned

was in fact later rezoned commercial. Two and a half years

after the taking, Novi rezoned the noncondemned land for

office/service/technology use.

4

 Plaintiff made a motion to prevent introduction of

this evidence.4 The trial court heard oral argument and

concluded that it was admissible. The court found it

relevant, not too remote in time, and not overly

prejudicial. The evidence was admitted, and the jury

awarded damages consistent with defendants’ evaluation,

which was based on use of the land if zoned commercial.

On appeal, plaintiff argued that admission of the

evidence was erroneous. The Court of Appeals held that the

trial court had abused its discretion in admitting it

because it “tainted the jury’s resolution of the

‘reasonable possibility’ question of fact.” The Court

reversed the judgment of the trial court and remanded the

case for a new trial without the erroneously admitted

evidence.5 Unpublished opinion per curiam of the Court of

Appeals, issued July 22, 2003 (Docket Nos. 234099, 240227).

The Court of Appeals decision was not unanimous. The

dissent argued that the majority did not give the trial

court’s evidentiary ruling the deference it was due and

4
Plaintiff’s March 6, 2001, motion in limine to bar
testimony of a May 1998 zoning change.
5
The Court of Appeals, in dicta, also discussed the
trial court’s consideration of defendants’ “cost to cure”
the taking. We did not grant leave to appeal on this
issue, and I decline to express a view about it.

5

that the trial court’s decision should be affirmed. It

observed that this Court held in Dep’t of Transportation v

VanElslander6 that the possibility of subsequent rezoning

can be relevant to the market value of land at the time of

the taking. It opined that any error was harmless.

Defendants sought leave to appeal to this Court.

Until today, no published decision of this Court or of the

Court of Appeals has directly addressed the question

presented, and it is susceptible to arising again.

Recognizing its jurisprudential significance, we granted

leave to appeal

limited to [the issues] (1) whether a posttaking
zoning decision can be considered in determining
value at the time of the taking, and (2) whether
the Court of Appeals decision in this case is
consistent with [VanElslander, supra]. [470 Mich
874 (2004).]

JUST COMPENSATION

We review decisions regarding the admissibility of

evidence at trial for an abuse of discretion.

VanElslander, supra at 129. It is basic to condemnation

law that the government may take private property for

public use as long as it pays just compensation for it.

Const 1963, art 10, § 2.

6
460 Mich 127, 130; 594 NW2d 841 (1999).

6

 “Just compensation” is a legal term of art. Silver

Creek Drain Dist v Extrusions Division, Inc, 468 Mich 367,

376; 663 NW2d 436 (2003). It is intended to place the

property owner in as good a position financially as if the

property had not been taken. This ensures that neither the

property owner nor the public is enriched at the other’s

expense. State Hwy Comm’r v Eilender, 362 Mich 697, 699;

108 NW2d 755 (1961).

Just compensation is the fair market value of land at

the time of its taking. Id. Under the UCPA, what is just

compensation is determined as of the date the condemnation

complaint is filed and as if the government’s acquisition

of the land had not been contemplated. MCL 213.70.

The jury assesses the value of condemned land as of

the date of condemnation through the eyes of those

acquiring or losing it. The market participants cannot

foresee the future. In the case under consideration, the

participants would not have known that the land would be

rezoned. The participants’ prediction of whether there was

a reasonable possibility of rezoning could be based only on

information available at the time of the taking.7 Current

7
Defendants’ real estate appraiser testified that the
present value of real estate may be assessed by comparing
Footnotes continued on following page.

7

property values are based in part on potential changes

discounted for their uncertainty.

The law accepts that a reasonable possibility that the

zoning classification will be changed “‘should be

considered in arriving at the proper value.’” Eilender,

supra at 699, quoting United States v Meadow Brook Club,

259 F2d 41, 45 (CA 2, 1958). In Eilender, the state

presented an appraisal based on the property’s residential-

use zoning status. The property owner’s appraisal was

based on commercial use. An application by the owner to

rezone the property for commercial use was pending at the

time of the taking.

Commercial use of the property in Eilender would have

been consistent with the zoning of property in some of the

surrounding area. But the city commissioners awarded

compensation that reflected the state’s assessment. In so

the value of a given property with that of similar
properties.

There was testimony that relevant similarities include
the locations, sizes, and available uses of the parcels.
Recent sales are more relevant than older sales. However,
an appraisal should also consider possible market changes
during the time a property can reasonably be expected to
remain on the market. For instance, a large, undeveloped
parcel like the one at issue here may remain on the market
for two to three years before a buyer is found. Comparison
data is drawn from appraisals done by other professionals
and from public records.

8

doing, they failed to consider the reasonable possibility

that the property would be rezoned. We held that an

application for rezoning, submitted before the taking, was

relevant to show the reasonable possibility of rezoning and

should be considered in determining the property’s market

value.8 Eilender at 699-700.

THE RELEVANCE OF THE FACT OF FUTURE REZONING

At trial in this case, defendants submitted evidence

suggesting that Novi might rezone defendants’ land to a use

higher than residential. Because if there was a

possibility of rezoning at the time of the taking, it

affected the property’s fair market value. Hence, any

possibility of rezoning it was relevant.9

Similarly, I agree with Justices Markman and Weaver

that the rezoning was relevant to show that two-and-one-

half years before it occurred, a reasonable possibility of

8
In his opinion, Justice Markman fails to discuss the
factual context out of which Eilender arose. The facts in
Eilender differed critically from those in this case.
There, we remanded the case to allow the jury to hear about
an application for rezoning that had been submitted when
the taking occurred. In contrast, the jury in this case
heard evidence that was not available to the market
participants at the time of the taking.
9
Relevant evidence is that which has “any tendency to
make the existence of any fact that is of consequence to
the determination of the action more probable or less
probable” than without the evidence. MRE 401.

9

rezoning may have existed. If something occurs, by

definition, the occurrence had to have been possible then

and likely at some time beforehand. The fact that the

reasonable possibility may not have arisen until after the

taking does not render evidence of the rezoning irrelevant.

It has some tendency to make more likely the existence of a

reasonable possibility before the taking.

However, Justice Young erroneously relies on the fact

that a market participant could not have known of the

rezoning at the time of the taking. This confuses the

temporal relationship between the events with their legal

relationship. Although the market participant could not

have known that an event would occur in the future, the

fact that it did occur shows that it was reasonable to

believe beforehand that its occurrence was likely.

Justice Young’s example of the roll of a die is

misplaced. When one is asked beforehand the result of the

roll of a die, six is among the guaranteed results. Each

of the six alternative results has an equal chance of

occurring with every roll. The fact that a six was rolled

is unnecessary to prove that six was possible or that it

was reasonable to believe before the roll that six was

possible.

10

 Rezoning is more like a horse race than the roll of a

die. The probability of a certain horse winning depends on

many factors. They include, among others, the condition of

the horse on race day, the condition of the other horses,

and the condition of the track. The odds on a bet placed

on that horse, which are an expression of the perceived

probability of that horse winning, are based on these

factors known before the race. If the horse wins, the

victory corroborates the strength of the prediction that

the horse would win. But there are no guarantees that the

horse will ever win, unlike the result of the roll of a

die.

Similarly, there are no guaranteed outcomes when one

estimates whether property will be rezoned.10 Rezoning is

one of several possibilities. The probability of it

occurring may never become a reality. But the fact of

rezoning corroborates the assertion that the belief it

would be rezoned was reasonable, just as a winning bet

corroborates the belief that a horse would win. As Justice

Young notes, rezoning suggests that the prognostication is

more accurate than another’s that was to the contrary.

10
Similarly, there are no guarantees that an officer
of a corporation will be indicted. See ante at 20 n 34.

11

Ante at 29. Hence, the evidence of rezoning is legally

relevant.

THE PREJUDICIAL EFFECT OF A FUTURE FACT

Just because evidence is relevant does not mean that

it is admissible. The trial court may exclude relevant

evidence “if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury . . . .” MRE 403.

We have noted that “[e]vidence is not inadmissible

simply because it is prejudicial. Clearly, in every case,

each party attempts to introduce evidence that causes

prejudice to the other party.” Waknin v Chamberlain, 467

Mich 329, 334; 653 NW2d 176 (2002). “In this context,

prejudice means more than simply damage to an opponent’s

cause. A party’s case is always damaged by evidence that

the facts are contrary to his contentions, but that cannot

be grounds for exclusion.” People v Vasher, 449 Mich 494,

501; 537 NW2d 168 (1995).

This rule “‘is not designed to permit the court to

‘even out’ the weight of the evidence . . . or to make a

contest where there is little or none.’” People v Mills,

450 Mich 61, 75; 537 NW2d 909 (1995), quoting United States

v McRae, 593 F2d 700, 707 (CA 5, 1979). The rule prohibits

evidence that is unfairly prejudicial. “Evidence is

12

unfairly prejudicial when there exists a danger that

marginally probative evidence will be given undue or

preemptive weight by the jury.” People v Crawford, 458

Mich 376, 398; 582 NW2d 785 (1998).

THE DISTINCTION BETWEEN FACT AND REASONABLE POSSIBILITY

The mischief here is that, once a juror hears evidence

that rezoning occurred, the juror will have difficulty

concluding anything but that rezoning was reasonably

possible when the taking occurred. As noted earlier in

this opinion on p 10, it is not necessarily true that the

possibility reasonably existed at the time of the taking.

Rezoning might have become reasonably possible only upon

the happening of one or more events after the taking. The

taking itself could be one such event, as plaintiff argued

at trial.

Moreover, it does not follow from the fact that

something occurs that people could have reasonably believed

beforehand that it would occur. Consider these

illustrations: In January 1968 one could have predicted

that it was reasonably possible that Neil Armstrong would

set foot on the moon in July 1969. Similarly, one could

say today that it is reasonably possible that man will

visit Mars in future years.

13

 Merely because an event occurred does not mean that it

was reasonably possible on a given date beforehand.

Reasonable predictions of space exploration require one to

know much about the status of our space program at the time

the prediction is made. An accurate assessment of the

reasonable possibility of these two space explorations

depends on the information known beforehand. Similarly, a

reasonable prediction of future rezoning requires that

certain knowledge be available to the market participant at

the time of the taking. See p 8 n 7 of this opinion.

The distinction between the fact of an occurrence and

whether it was reasonably possible on a given date before

it occurred has eluded many. For example, one prominent

treatise, cited by the trial court, the dissent in the

Court of Appeals, and Justice Markman, characterized the

fact of posttaking rezoning as “weighty evidence.” 4

Nichols, Eminent Domain (3d ed), § 12C.03[3].

It is not enough that posttaking rezoning is probative

of an antecedent possibility of rezoning, as Justice

Markman argues. The question is was it reasonably possible

at the time of the taking? In this case, the taking was

two-and-one-half years before rezoning occurred. The fact

that rezoning did occur does not mean that it was

14

reasonably possible at the time of or before the taking

that it would occur.

At first blush, posttaking rezoning is compelling

evidence that there was a strong possibility of rezoning at

the time of the taking. But the admission of this evidence

was unfair because of the significant danger that the jury

would not properly limit its consideration of it.

Admission of this evidence risks that the jury will accord

it weight wildly disproportionate to its probative value

and treat rezoning when the taking occurred as a foregone

conclusion.11 This is the “hindsight bias” discussed by

Justice Young that leads the jury to give the evidence

undue weight and render it unfairly prejudicial. See ante

at 22 n 36. Rather than prove Justice Young’s point, this

bias demonstrates why the evidence can be relevant yet

unfairly prejudicial.

Evidence of posttaking rezoning also tends to confuse

the value of property once rezoned and its value when it

was only reasonably possible that it would be rezoned. In

a takings case, the amount that the property owner is

11
In his opinion, Justice Markman illustrates this
danger, post at 21-22. Admission of posttaking rezoning
evidence may encourage a witness to testify that it shows a
reasonable possibility of rezoning although when the taking
occurred, there was no reasonable possibility.

15

entitled to be paid is the latter value. However, the jury

may improperly award just compensation based on the value

of the land as rezoned as if the property had already been

rezoned before the taking.

Justice Markman proceeds on the faith that the jury

can limit the evidence to its proper sphere. See post at

17-18. However, this approach negates the trial court’s

role as a gatekeeper under MRE 403. The court must ensure

that the influence of the evidence presented to the jury is

not wildly disproportionate to its probative value.

In every case, the fact of subsequent rezoning is

unavailable to the market participant at the time of the

taking. As Justice Markman points out, it allows one party

the benefit of the skyscraper or stadium looming overhead

whereas the market participant was limited to imagination

and someday plans. It is highly prejudicial because it

gives one party an unfair advantage over the other by

giving the jury information that the hypothetical market

participant could not have obtained.12

12
Justice Markman muses about the subjective
motivations of the parties in a marketplace transaction.
However, those motivations are irrelevant here. “Just
compensation” is not intended to perfectly replicate a
private deal. Nor does it consider that the property owner
Footnotes continued on following page.

16

 Just as the market does not have the benefit of

twenty-twenty hindsight, neither do litigants. The jury

must assess the value of the property “‘on the basis of

facts as they then would have appeared to and been

evaluated by the mythical buyer and seller.’” Roach v

Newton Redevelopment Auth, 381 Mass 135, 138; 407 NE2d 1251

(1980), quoting New Jersey v Gorga, 26 NJ 113, 118; 138 A2d

833 (1958).13

In the interest of having the same availability of

information as the market participants at the time of the

was an unwilling seller. In fact, the analysis is meant to
ensure that this factor is not considered.

Like all “objective” legal determinations, “just
compensation” is a legal construct. I disagree that it
should be ascertained by considering factors that were
unavailable to market participants at the time of the
taking.
13
See also Reeder v Iowa State Hwy Comm, 166 NW2d 839,
842 (Iowa, 1969) (inference that the adoption of the
ordinance more than eight months after condemnation proves
that the higher use was the best use “at time of taking
. . . is manifestly lacking in substance”) (emphasis in
original).

These cases and others cited by Justice Markman for
the proposition that evidence of posttaking rezoning is
admissible, dealt only with whether the evidence was
admissible because it was relevant. They admitted the
evidence without addressing its prejudicial effect. See
also Bembinster v Wisconsin, 57 Wis 2d 277, 284-285; 203
NW2d 897 (1973); Texas Electric Service Co v Graves, 488
SW2d 135, 137 (Tex App, 1972). Thus, I am not as persuaded
as is Justice Markman by their less thorough analysis.

17

taking, the jury should not know of posttaking rezoning.

It causes too great a danger of confusion of the issues and

unfair prejudice to the taking party, outweighing its

probative value.14

THIS EVIDENCE OF POSTTAKING REZONING WAS UNFAIRLY PREJUDICIAL

The highly prejudicial tendency of posttaking evidence

to confuse and mislead substantially outweighed its minimal

probative value in this case. Plaintiff estimated that the

land was worth $2,758,200. Defendants set their damages at

$18,586,000. The jury substantially agreed with defendants

and awarded them $14,877,000.

The award suggests a high likelihood that the jury was

overwhelmed with the evidence of the posttaking rezoning.

The jury appears to have ignored significant evidence that

rezoning was not foreseeable. Novi’s chief planning

consultant testified that, in 1993, the planning commission

recommended that the land not be rezoned commercial. He

revealed that the city had no plan to rezone the land

because there was a demand for large-lot, million-dollar

14
Justice Markman implies that our decision today
improperly favors the government. Post at 23 n 18.
Although the government may benefit today, I strive to
apply the rules of evidence objectively and in accordance
with their goal of deciding cases fairly and on their
merits. I do not consider the identities of the parties.

18

homes. He told the jury that the intention of the city

council and the planning commission was to maintain the

property for residential purposes. As of the date of the

taking, he would not have recommended a change in zoning.

Also, defendants had no pending petition for a zoning

change, unlike the defendant in Eilender.

The evidence of posttaking rezoning was not harmless,

as defendants argue. Plaintiff presented sufficient

evidence to the jury that it could have concluded that

there was little reasonable possibility of rezoning at the

time of the taking. But defendants’ damages award, which

was substantially in agreement with their claim,

demonstrates that the jury likely gave the posttaking

evidence far more weight than it merited. Therefore, its

admission here violated MRE 403 and was an abuse of

discretion.15

I agree with Justice Young that the trial court

exacerbated the error. The court admitted the evidence of

rezoning but precluded plaintiff from presenting evidence

that the rezoning occurred as a result of the taking.

15
My analysis would not prevent a trial court from
considering posttaking rezoning when determining the
admissibility of other evidence that was available at the
time of the taking. MRE 104(a).

19

Plaintiff should have been allowed to counter the effect of

the evidence once it was admitted. See ante at 30.

Michigan takings law has long recognized that a

condemnation award may be disturbed on appeal where

erroneously admitted evidence caused substantial injustice

in the result. Michigan Air Line R v Barnes, 44 Mich 222,

227; 6 NW 651 (1880); MCR 2.613(A). I find that because of

the erroneous admission of evidence, a substantial

injustice occurred here.

THE EFFECT OF THE VIEW OF THE LAND BY THE JURY

It bears noting that, contrary to the Court of Appeals

dissent, plaintiff did not open the door to evidence of

posttaking rezoning or render its admission harmless by

requesting a jury view. Plaintiff filed its motion in

limine opposing the evidence of subsequent rezoning on

March 6, 2001. At a March 15 hearing, although the court

did not rule, its language suggested that ultimately it

would deny the motion.

By March 28, the trial court had not ruled on the

motion. Plaintiff feared that it would receive an adverse

ruling. Therefore, it moved for a jury view. Plaintiff

argues that it did so to provide some evidence that the

property, most of which remained undeveloped at the time,

was more akin to residential property than commercial

20

property. Plaintiff asserted that it would have withdrawn

the motion if, before the jury view, the court had

announced its decision to exclude defendants’ posttaking

rezoning evidence. Plaintiff did not preclude appellate

review by properly anticipating and attempting to mitigate

the trial court’s error.

Moreover, the jury view did not render harmless the

erroneous admission of the evidence of posttaking rezoning.

There is no record evidence of what the jury saw when it

viewed the property. It may have seen some commercial

construction and inferred that part of the parcel had been

rezoned. But I agree with plaintiff that the jury view was

not the equivalent of uncontroverted evidence that the

entire parcel had been rezoned.

DEP’T OF TRANSPORTATION V VANELSLANDER

My view is not inconsistent with our decision in

VanElslander, supra. In that case, the Department of

Transportation took a portion of the defendants’ land. As

a consequence, a building on the remainder of the land was

in violation of local set-back requirements. The

department attempted to introduce evidence that it was

reasonably possible for the defendants to mitigate the

effect of the taking on the uncondemned building by

obtaining a zoning variance. A variance could have cured

21

the set-back violation and avoided loss of the building.

On appeal to this Court, the department argued that the

defendants’ appeal was moot because the building had been

demolished.

We held that the evidence showing the possibility of

obtaining a variance was admissible. Also, the fact that

the building had been demolished did not render the appeal

moot. VanElslander, supra at 132.

In determining just compensation, the jury in

VanElslander was entitled to hear of the likelihood that,

at the time of the taking, a variance might have been

sought and granted. Similarly, the jury in this case was

entitled to hear evidence showing the likelihood of

rezoning. But just as subsequent demolition was not an

appropriate consideration when determining damages in

VanElslander, neither was subsequent rezoning an

appropriate consideration here.

CONCLUSION

The government must pay just compensation when it

takes land for public use. Const 1963, art 10, § 2. Just

compensation is the fair market value of the land.

Eilender, supra at 699. It is determined at the time of

the taking. MCL 213.70.

22

 The prejudicial effect of evidence of subsequent

rezoning on the determination of fair market value

substantially outweighs its relevance. MRE 403. For that

reason, it is not admissible to show the reasonable

possibility of rezoning at the time of the taking. In this

case, the erroneous admission of this evidence was an abuse

of discretion. It was not harmless because it caused

substantial injustice to plaintiff.

I agree with the conclusion of the Court of Appeals.

Plaintiff is entitled to a new trial without the admission

of evidence of the posttaking zoning change.16 I agree with

the decision to remand the case to the trial court and not

retain jurisdiction.

Marilyn Kelly

16
Consequently, I need not address the argument that
the trial court should have admitted evidence that the
taking itself caused the rezoning.

23

 S T A T E O F M I C H I G A N

SUPREME COURT

MICHIGAN DEPARTMENT OF
TRANSPORTATION,

Plaintiff-Appellee,

v No. 124765

HAGGERTY CORRIDOR PARTNERS
LIMITED PARTNERSHIP, PAUL D.
YAGER, trustee, also know as
PAUL D. YEGER, and NEIL J. SOSIN,

Defendants-Appellants.

_______________________________

WEAVER, J. (dissenting).

I dissent from the majority’s conclusion that evidence

of a posttaking rezoning is inadmissible in this case. I

agree with Justice Markman’s conclusion that the evidence

of a posttaking rezoning is relevant evidence that is

admissible in this case to enable the jury to assess

whether a “reasonable possibility” of rezoning existed on

the date of the taking and whether the possibility would

have affected the price a willing buyer would have offered

for the property at the time of the taking. Therefore, I

would conclude that the trial court did not abuse its

discretion in admitting the evidence.
 I also agree with Justice Markman’s conclusion that

the trial court did abuse its discretion in excluding

plaintiff’s evidence that the posttaking rezoning was

caused by the taking, where this evidence was offered to

counter defendants’ argument that there was a reasonable

possibility of a zoning change.

Therefore, I would vacate the Court of Appeals

decision and remand this case for a new trial.

Just compensation for private property that is

condemned for public use is intended to “put the party

injured in as good position as he would have been if the

injury had not occurred.” State Hwy Comm’r v Eilender, 362

Mich 697, 699; 108 NW2d 755 (1961). Determining just

compensation “is not a matter of formula or artificial rule

but of sound judgment and discretion based upon the

relevant facts in the particular case.” Id. We have held

that a reasonable possibility that a zoning classification

will be changed is relevant and should be considered when

determining just compensation to the extent that the

“‘possibility’ would have affected the price which a

willing buyer would have offered for the property just

prior to the taking.” Id. at 699 (citation omitted); see

also Dep’t of Transportation v VanElslander, 460 Mich 127,

130; 594 NW2d 841 (1999). A posttaking change in zoning is

2

relevant1 because it may assist the jury in assessing the

possibility of a zoning change at the time of the taking—

i.e., how likely a zoning change was at the time of the

taking—and whether that possibility would have affected the

price a willing buyer would have offered for the property

at the time of the taking.2 Therefore, I would conclude

that the trial court did not abuse its discretion in

admitting evidence of a posttaking change in zoning.

Additionally, just as the defendants in this case

should be permitted to introduce evidence of a posttaking

change in zoning to demonstrate the possibility of a zoning

change at the time of the taking and how the possibility

would have affected the price, plaintiff in this case

should be permitted to offer evidence to counter

defendants’ evidence. Such evidence includes evidence that

1
As defined in MRE 401, “relevant evidence” is
“evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the
action more probable or less probable than it would be
without the evidence.” Further, “[a]ll relevant evidence
is admissible, except as otherwise provided by the
Constitution of the United States, the Constitution of the
State of Michigan, these rules, or other rules adopted by
the Supreme Court.” MRE 402.
2
As stated by the Supreme Court of New Jersey, “In
short if the parties to a voluntary transaction would as of
the date of taking give recognition to the probability of a
zoning amendment in agreeing upon the value, the law will
recognize the truth.” New Jersey v Gorga, 26 NJ 113, 117;
138 A2d 833 (1958).

3

the rezoning in this case was a result of the taking.

Therefore, I would conclude that the trial court abused its

discretion in excluding evidence that the rezoning was a

result of the taking.

Consistent with this opinion, I would remand the case

to the trial court for a new trial.

Elizabeth A. Weaver
Michael F. Cavanagh

4

 S T A T E O F M I C H I G A N

SUPREME COURT

MICHIGAN DEPARTMENT OF
TRANSPORTATION,

Plaintiff-Appellee,

v No. 124765

HAGGERTY CORRIDOR PARTNERS
LIMITED PARTNERSHIP, PAUL D.
YAGER, trustee, also known as
PAUL D. YEGER, and NEIL J. SOSIN,

Defendants-Appellants.
_______________________________

MARKMAN, J. (dissenting).

The majority concludes that evidence of a posttaking

rezoning is inadmissible to demonstrate that a “reasonable

possibility” of rezoning existed on the date of the taking.1

I respectfully disagree. Because I believe that evidence

of a posttaking rezoning is admissible to demonstrate that

a “reasonable possibility” of rezoning existed on the date

of the taking, I do not believe that the trial court abused

its discretion in admitting such evidence. However, I do

1
Throughout this opinion, I use the term “majority”
when referring to both Justice Young’s lead opinion and
Justice Kelly’s concurring opinion, and I use the term
“plurality” when referring only to Justice Young’s lead
opinion.
believe that the trial court abused its discretion in

prohibiting plaintiff from introducing evidence that the

posttaking rezoning was caused by the taking. Therefore, I

would vacate the decision of the Court of Appeals and

remand this case for a new trial, in which defendants would

be allowed to introduce evidence of the posttaking rezoning

and plaintiff would be allowed to introduce evidence that

such posttaking rezoning was caused by the taking.

I. FACTS AND PROCEDURAL HISTORY

Defendant partnership, a partnership that develops

real estate, owned 335 acres of vacant property in Novi.2

In 1995, the Michigan Department of Transportation (MDOT)

began proceedings to condemn fifty-one acres of defendants’

property for use in the construction of the M-5 Haggerty

Road Connector in Novi. On the date of the taking, the

property was zoned for residential use, but in 1998 the

property was rezoned for commercial use. At trial, at

which the jury was charged with determining the “just

compensation” due defendants, the trial court allowed

2
According to defendants, they purchased this property
to build a high technology office park, anticipating that
the property would be rezoned from residential to
commercial. After the taking, the property was rezoned
from residential to commercial and defendants did build an
office park on their remaining 284 acres.

2

defendants to present evidence of the posttaking rezoning.3

However, the trial court refused to allow MDOT to introduce

rebuttal evidence that the property was rezoned only as a

result of the taking. Defendants requested approximately

$18.5 million in compensation and MDOT agreed to pay

approximately $2.7 million. The jury returned a verdict of

approximately $14.8 million. In a split decision, the

Court of Appeals affirmed in part, reversed in part, and

remanded for a new trial. Unpublished opinion per curiam,

issued July 22, 2003 (Docket Nos. 234099 and 240227). The

majority held that the trial court abused its discretion in

admitting evidence of the posttaking rezoning, and, thus,

remanded for a new trial. The dissenting judge concluded

that the trial court did not abuse its discretion either in

admitting evidence of the posttaking rezoning or in

excluding evidence that the posttaking rezoning was caused

by the taking, and, thus, he would have affirmed the

verdict.

II. ANALYSIS

Art 10, § 2 of Michigan’s 1963 Constitution provides

that “[p]rivate property shall not be taken for public use

3
At MDOT’s request, the jury saw the property in its
posttaking state.

3

without just compensation therefor being first made or

secured in a manner prescribed by law.” “‘“The purpose of

just compensation is to put property owners in as good a

position as they would have been had their property not

been taken from them.”’” Dep’t of Transportation v

VanElslander, 460 Mich 127, 129; 594 NW2d 841 (1999)

(citations omitted). Therefore, “the proper amount of

compensation for property takes into account all factors

relevant to market value.” Silver Creek Drain Dist v

Extrusions Div, Inc, 468 Mich 367, 379; 663 NW2d 436

(2003). In order to determine “just compensation,” we must

determine the market “value of the condemned land at the

time of the taking . . . .” State Hwy Comm’r v Eilender,

362 Mich 697, 699; 108 NW2d 755 (1961). The fair market

value of condemned property “shall be determined with

respect to the condition of the property and the state of

the market on the date of valuation.” MCL 213.70(3).

“‘[A]ny evidence that would tend to affect the market value

of the property as of the date of condemnation is

relevant.’” VanElslander, supra at 130 (citation omitted).

A. RELEVANCE OF EVIDENCE OF POSTTAKING REZONING

It is well established and uncontested that one of the

factors relevant to market value is the “‘reasonable

possibility that the zoning classification will be

4

changed.’” Eilender, supra at 699 (citation omitted). As

this Court held in Eilender, supra at 699, “‘if there is a

reasonable possibility that the zoning classification will

be changed, this possibility should be considered in

arriving at the proper value.’” (Citation omitted.)4 In

other words, if, at the time of the taking, there existed a

“reasonable possibility” that the property would be rezoned

to allow “more lucrative uses,” this “reasonable

possibility” should be considered.5 Id. This factor “‘must

be considered in terms of the extent to which the

“possibility” would have affected the price which a willing

buyer would have offered for the property just prior to the

taking.’” Id. (citation omitted). Property that is zoned

to allow “more lucrative uses” is worth more money than

property that is not so zoned. Therefore, property that

has a “reasonable possibility” of being rezoned to allow

4
Justice Kelly states that I am mischaracterizing this
Court’s holding in Eilender. I cite Eilender only for a
proposition with which everybody apparently agrees—a
“reasonable possibility” of rezoning should be considered
when determining “just compensation.” I do not suggest
that this Court in Eilender already answered the question
at issue here.
5
The opposite, of course, is true as well. That is,
if, at the time of the taking, there existed a “reasonable
possibility” that the property would be rezoned to exclude
“more lucrative uses,” this “reasonable possibility” should
also be considered. Id.

5

“more lucrative uses” is worth more money than property

that does not have a “reasonable possibility” of being

rezoned to allow “more lucrative uses.”6 A person whose

property has been taken by the government is entitled to

the full market value of the taken property, taking into

consideration the totality of factors that a willing buyer

would consider, including the “reasonable possibility” of

rezoning.

The majority does not disagree that the “reasonable

possibility” of rezoning is a factor that must be

considered when determining “just compensation.” However,

the majority concludes that the fact itself that the

property was rezoned after the taking cannot be considered

in determining whether there was, at the time of the

taking, a “reasonable possibility” of rezoning. I

disagree. Instead, I believe that such evidence may afford

compelling evidence that a “reasonable possibility” of

rezoning existed at the time of the taking.

In this case, one of the primary issues for the jury

to resolve was whether, at the time of the taking, there

6
As the plurality recognizes, “at the time defendants
acquired their Novi property, beginning in 1988, the
property was more valuable in their eyes because of the
looming possibility of a future zoning change.” Ante at
19-20.

6

was a “reasonable possibility” that the subject property

would be rezoned from residential to commercial. MDOT

argues that the trial court abused its discretion when it

allowed defendants to introduce evidence that, although the

property was zoned residential at the time of the taking, 2

1/2 years later the property was rezoned commercial. The

Court of Appeals majority agreed with MDOT, concluding that

“evidence of the actual zoning change was irrelevant to the

value of the property on the date of taking and should not

have been disclosed to the jury.” Slip op at 3.

The Court of Appeals dissent, on the other hand,

concluded that the trial court did not abuse its discretion

in admitting evidence of the posttaking rezoning. I agree

with this dissent. MRE 402 provides that “[a]ll relevant

evidence is admissible, except as otherwise provided by the

Constitution of the United States, the Constitution of the

State of Michigan, these rules, or other rules adopted by

the Supreme Court.”7 MRE 401 defines relevant evidence as

7
MDOT does not argue that the admission of the
posttaking rezoning violated the Constitution of the United
States or the Constitution of the state of Michigan. It
only argues that the evidence is not relevant and that,
even if it is relevant, it should be excluded pursuant to
MRE 403, as discussed later in this opinion.

7

that “having any tendency to make the existence of any fact

that is of consequence to the determination of the action

more probable or less probable than it would be without the

evidence.”

As already discussed, whether a “reasonable

possibility” of rezoning existed at the time of the taking

is of consequence to the determination of “just

compensation.”8 That the property was, in fact, rezoned

makes it “more probable” that a “reasonable possibility” of

rezoning existed at the time of the taking. As the Court

of Appeals dissent explained, “evidence of the actual

rezoning had the tendency to make the existence of the

8
I do not know why the plurality suggests that I
“misidentify[] the ‘fact that is of consequence,’” ante at
17, because I agree with the plurality that “the ‘fact that
is of consequence’ is the reasonable possibility of a
zoning modification, as that possibility might have been
perceived by a market participant on condemnation day.”
Ante at 18 n 32 (emphasis in the original). Where the
plurality and I differ is with regard to whether evidence
of a posttaking rezoning makes it “more probable” that a
“reasonable possibility” of rezoning existed at the time of
the taking. I agree with the plurality that the fact that
the property was subsequently rezoned does not necessarily
mean that a “reasonable possibility” of a rezoning existed
at the time of the taking. However, the fact that the
property was subsequently rezoned makes it “more probable”
that a “reasonable possibility” of a rezoning existed at
the time of the taking than would the fact that the
property was not subsequently rezoned.

8

possibility of rezoning more probable than it would be

without the evidence.” Slip op at 2. This is true because

a jury confronted with the reality of a subsequent rezoning

would be acting in an altogether logical fashion by

comparing this reality to an alternative reality in which

no subsequent rezoning had occurred, and concluding that

the former reality gives rise to a greater inference than

the latter that the impetus for rezoning preceded the

taking. Whether this inference is strong or weak would

depend on the totality of the circumstances.

The majority, however, would, in every case, deny the

property owner the ability to introduce evidence of an

actual rezoning, regardless of the strength of the

inference raised by the rezoning either by itself or in

conjunction with other evidence. Because I believe that

evidence of actual rezoning gives rise to the wholly

logical inference that the genesis of that rezoning may

have preceded the taking, I would not bar the introduction

of such evidence.9 Indeed, the leading treatise on eminent

9
The plurality is impressive in the breadth of the
analogies that it brings to bear in its analysis, ranging
from probability to the stock market to psychology. If, as
I understand it to be the plurality’s point, the future is
unpredictable, I am persuaded. If, on the other hand, it
is the plurality’s point that when the future becomes the
present it is of no relevance in assessing what the
Footnotes continued on following page.

9

domain observes that evidence of a posttaking rezoning “has

been held to be weighty evidence of the existence (at the

time of the taking) of the fact that there was a reasonable

probability of an imminent change.” 4 Nichols, Eminent

Domain (3d ed), § 12C.03[3]. As the New Jersey Supreme

Court has explained, such evidence “support[s] the

reasonableness of the factual claim that on the date of

taking the parties to a voluntary sale would have

recognized and been influenced by the probability of an

amendment in the near future in fixing the selling price.”

New Jersey v Gorga, 26 NJ 113, 118; 138 A2d 833 (1958).10

prospects yesterday were of that future, I respectfully
disagree.
10
Other states have held that evidence of a posttaking
rezoning is admissible to help the jury determine the “just
compensation” due for the taking. Roach v Newton
Redevelopment Auth, 381 Mass 135, 137; 407 NE2d 1251 (1980)
(holding that “[a]ctual amendment of the zoning law,
subsequent to the taking, may be ‘weighty evidence’ of such
a prospect”); Bembinster v Wisconsin, 57 Wis 2d 277, 284-
285; 203 NW2d 897 (1973) (holding that “[t]he type of
evidence which has been admitted as material as tending to
prove a reasonable probability of change includes . . . the
actual amendment of the ordinance subsequent to the
taking”); Texas Electric Service Co v Graves, 488 SW2d 135,
137 (Tex App, 1972) (holding that “if subsequent to the
taking and before the trial the ordinance was actually
amended to permit the previously forbidden use then that of
itself was weighty evidence of the existence at the time of
the taking of the fact that there was a reasonable
probability of an imminent change”); Reeder v Iowa State
Hwy Comm, 166 NW2d 839, 841 (Iowa, 1969) (holding that a
rezoning ordinance enacted more than eight months after the
Footnotes continued on following page.

10

 B. MARKETPLACE TRANSACTIONS VERSUS CONDEMNATION
PROCESS

As the majority explains, the jury is charged in cases

of this sort with determining what a “mythical,”

“hypothetical,” “theoretical,” “fictional,” “willing”

buyer, would have paid a “mythical,” “hypothetical,”

“theoretical,” “fictional,” “willing” seller for the

property in a “voluntary,” transaction at the time of the

taking. Ante at 15, 17, 18, 22, 23, 24, 25 n 38, and 27,

28, 31; ante at 15. However, in truth, the condemnation

process does not involve a typical willing buyer,11 a

taking, although not dispositive, was admissible). See
also 9 ALR3d 291, § 11[a], p 320 (“[c]hange of an existing
zoning ordinance, subsequently to the time of condemnation,
has been held admissible in a trial for the award of
compensation as bearing on the degree of probability and
the imminence of the change at the time of the taking”); 4
Rathkopf’s The Law of Zoning and Planning, § 75:8 (4th ed)
(“[a] change in the zoning classification of a condemned
parcel or similarly situated adjacent properties subsequent
to a taking is considered weighty evidence of a reasonable
probability of an imminent change at the time of taking”).
Contrary to the plurality’s suggestion, ante at 26 n 40, I
have chosen to “blindly . . . follow the lead of these few
jurisdictions,” only if the entirety of the analysis
contained in this dissent is disregarded. I cite the above
cases only to contrast the support in other states for the
position expressed in this dissent with the utter absence
of similar support for the majority’s position.
11
“As to the condemnor/government in the hypothetical
‘fair market value’ scenario, the government stands in the
shoes of a ‘willing [private] buyer.’” 13 Powell, Real
Property, § 79F.04[2][a][ii], p 39.

11

willing seller, or a voluntary transaction.12 Instead, it

involves a transaction in which the government takes

property without the permission or consent of the property

owner, in what is essentially a “forced sale.” The

property owner is not a willing seller, and the government

is not a typical willing buyer. The condemnation process

bears little in common with a voluntary sale of property in

the market between a willing seller and a willing buyer.

It is a source of its confusion that the majority

fails to give significance to these differences. Yet, they

are determinative of the very issue before this Court. The

majority provides that the jury is to “suppose” that the

property owner is indistinguishable from a willing seller,

that the government is indistinguishable from a typical

willing buyer, and that both have entered into a market

transaction. Next, the jury is asked to “imagine” the

value that a “reasonable” buyer and seller would have

placed on the property in the market. Finally, although

the jury can be apprised by the governmental “buyer” that

at the time of “sale,” the property was zoned residential

12
“Not only does the ‘fair market value’ test posit a
hypothetical buyer and a hypothetical seller, it also
posits a hypothetical market . . . .” 13 Powell, Real
Property, § 79F.04[2][a][iii][A], p 39.

12

and there was no “reasonable possibility” of it being

rezoned, the jury cannot be apprised by the private

“seller” that such rezoning, in fact, has already occurred.

The upshot of this procedure is that the jury must

“imagine” a typical willing buyer, a willing seller, and a

voluntary transaction—none of which, of course, exist in

reality—while at the same time the jury must not consider a

reality that does exist, namely, that the government has

taken property that has been rezoned.

Moreover, not only is the jury to “imagine” a market

transaction where in reality there is none, but in

calculating the “fair market value” of the property being

“sold” the jury must imagine a particular moment in time at

which the taking, or “forced sale,” occurred, placing

itself in the shoes not of any real parties involved in the

taking, but of a nonexistent “reasonable” buyer and seller.

This is in further contrast to a genuine market transaction

in which the buyer and the seller stand in their own shoes,

and there is no need for a jury, or any other third party,

to imagine anything concerning the value of property.

What is the significance of the fact that the

condemnation process is not truly equivalent to a market

transaction? Its significance lies in its demonstration

that the majority operates on a faulty premise when it

13

insists that the jury, in making its “fair market value”

determination, can have access only to such information as

would have been possessed by a “real” buyer and seller at

the time of the “real” transaction. In the instant case,

this means, according to the majority, that the jury must

be deprived of the information that the property was

rezoned after it was taken. Apart from the fact that all

of the majority’s “realities” are merely fictive, there is

simply no basis for the proposition that parties to a

genuine transaction and parties to a constructive

transaction can, or should, be placed on an equal footing

concerning the range of access to information. This is a

false equivalency because the underlying transactions are

not equivalent.

In the market transaction, the buyer and the seller

will typically possess considerable information that is

distinctive or unique to themselves—sentimental

considerations concerning property, subjective assessments

of value, and estimations of worth that are a function of

their personal experiences, their varied speculations of

the future, and their diverse financial circumstances and

ambitions. Such “subjective” factors are inaccessible to

the jury, which can only make a “fair market value”

14

determination on the basis of “objective” factors.13 Just

as the participants in the “subjective” transaction may

then possess information that is unavailable to the

participants in the “objective” transaction, the corollary

is also true. For the participants in the “subjective”

transaction are involved in the task of calculating

“personal value,” while the participants in the “objective”

transaction are involved in the very different task of

calculating “fair market value.” In calculating the former

amount as accurately as possible—“personal value”—it is

necessary merely that the buyer and the seller be permitted

to take into consideration as much information as is of

13
"Market value” or “fair market value” is
defined as the amount of money which a purchaser
willing but not obliged to buy the property would
pay to an owner who was willing but not obliged
to sell it.

The hypothetical nature of this “value”
should be obvious. Moreover, the condemnee is
assumed to be not only a “willing seller” but
also a person who will act as a purely economic
creature, when in fact neither assumption may be
true. One inescapable result of imposing the
purely economic “willing seller” persona onto the
condemnee is that the formula permits no
compensation for subjective or sentimental
attachment that the condemnee may have to the
property. Only objective transferable value is
considered. Subjective nontransferable value,
such as . . . sentimental value generally [is]
not included in the just compensation
calculation. [13 Powell, Real Property, §
79F.04[2][a][i], pp 37-38.]

15

importance to each. In calculating the latter amount as

accurately as possible—“fair market value”—it is necessary

in contrast that as much relevant information as available

concerning value be taken into consideration.

For the reasons set forth earlier, I believe that

evidence of posttaking rezoning is relevant to “fair market

value.” Such relevance is not diminished by the fact that

this information might not have been available to

participants in a “subjective” transaction. Although the

“objective” transaction of the condemnation process can

never truly replicate the “subjective” transaction of the

marketplace, it can nonetheless be made as perfect as

possible on its own terms. This can be achieved only by

making available as much relevant information as possible

to the fact-finder.

C. PROBATIVE VALUE VERSUS DANGER OF UNFAIR PREJUDICE

MDOT argues that, even if evidence of the posttaking

rezoning is relevant evidence, it should be excluded

pursuant to MRE 403. MRE 403 provides, “[a]lthough

relevant, evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury,

or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” However,

16

“[e]vidence is not inadmissible simply because it is

prejudicial.” Waknin v Chamberlain, 467 Mich 329, 334; 653

NW2d 176 (2002). “‘“Relevant evidence is inherently

prejudicial; but it is only unfair prejudice, substantially

outweighing probative value, which permits exclusion of

relevant matter under Rule 403 . . . .”’” Id. at 334

(citations omitted). “Evidence is unfairly prejudicial

when there exists a danger that marginally probative

evidence will be given undue or preemptive weight by the

jury.” Id. at 334 n 3, quoting People v Crawford, 458 Mich

376, 398; 582 NW2d 785 (1998). “The fact that, subsequent

to the taking, the zoning ordinance was actually amended to

permit the previously proscribed use has been held to be

weighty evidence of the existence (at the time of the

taking) of the fact that there was a reasonable probability

of an imminent change.” 4 Nichols, Eminent Domain (3d ed),

§ 12C.03[3] (emphasis added). Evidence of a posttaking

rezoning “is not merely marginally probative evidence, and

thus there is no danger that marginally probative evidence

will be given undue weight by the jury.” Waknin, supra at

335 (emphasis added). Further, the trial court repeatedly

instructed the jury that it was to value the property as of

17

the date of the taking,14 and we must presume that the

jurors understood and followed these instructions.15 People

v Dennis, 464 Mich 567, 581; 628 NW2d 502 (2001).

14
The trial court instructed the jury:

Your award must be based upon the market
value of the property as of the date of
taking. . . .

* * *

The Court has instructed you on the subject
of highest and best use. One of the things that
must be considered in deciding what the highest
and best use of the property was at the time of
the taking is the zoning clarification -- zoning
classification of the property at that time.
However, if there was a reasonable possibility,
absent the threat of this condemnation case, that
the zoning classification would have been
changed, you should consider this possibility in
arriving at the value of the property on the date
of taking. . . .

In this case, the market value of the
property, both before and after the taking, must
be determined as of December 7th, 1995, and not
at an earlier or later date. [Emphasis added.]

15
Justice Kelly contends that admission of evidence of
a posttaking rezoning would be too confusing for a jury to
handle, and the plurality concludes that such evidence
“cannot be . . . easily ‘confined.’” Ante at 16, 18, 19;
ante at 27 n 42. I believe that a jury is quite capable of
making a distinction between the fair market value of the
property at the time of the taking and the fair market
value of the property at some later time. I also believe
that a jury is quite capable of understanding that just
because the property today is zoned commercial does not
Footnotes continued on following page.

18

 D. PRACTICAL VALUE OF EVIDENCE OF POSTTAKING REZONING

At trial, MDOT argued that there was no “reasonable

possibility” that the property would be rezoned. Not

permitting defendants to respond to this argument with the

fact that the property has, in fact, been rezoned

undermines the integrity of the judicial process by

requiring a jury to ignore reality. That is, the majority

would require the jury to ignore the skyscraper that looms

over a property, or the crowds milling about the new sports

stadium. Such a determined obliviousness to reality brings

no honor to a justice system when there are customary and

traditional means—a trial court that precisely instructs on

the law and a jury that faithfully abides by the

necessarily mean that there was a “reasonable possibility”
of the property being rezoned commercial 2 1/2 years
earlier. If jurors can be trusted sufficiently to
determine what constitutes “just compensation,” or the fair
market value of property, they can also be trusted to pay
heed to the trial court when it plainly instructs them on
proper and improper uses of evidence.

Justice Kelly has determined that “the jury was
overwhelmed with the evidence of the posttaking rezoning,”
that it “ignored significant evidence that rezoning was not
foreseeable,” and that it “likely gave the posttaking
evidence far more weight than it merited.” Ante at 18, 19.
There is no evidence to sustain this determination, other
than the fact that the jury’s calculation of fair market
value was closer to that proposed by defendants than by
plaintiff. Moreover, “just compensation” is a factual
question that is normally left to the jury to decide, not
the judges of this or any other court.

19

instructions—by which to ensure that the skyscraper or the

sports stadium is evaluated only for proper purposes. The

majority is correct that evidence of a posttaking rezoning

is not dispositive concerning whether there existed at the

time of the taking a “reasonable possibility” of a

rezoning. However, it is incorrect that such rezoning can

never be of any relevance in this regard. Rather, just as

with all other aspects of the “just compensation”

determination, the relevance of a particular posttaking

rezoning must be assessed on a case-by-case basis.

The premise of our justice system is that providing

more, rather than less, information will generally assist

the jury in discovering the truth. Relevant evidence

sustains the truth-seeking process. “In the American

judicial system, a jury is called upon to assume the

important role of fact-finder and the massive

responsibility that the role entails: searching for the

truth. ‘The purpose of trial is to find the truth and

exact justice through the transmission of information to

the jury.’” Comment, Speaking out: Is Texas inhibiting the

search for truth by prohibiting juror questioning of

witnesses in criminal cases?, 32 Tex Tech L R 1013, 1014

(2001) (citation omitted). The costs to our justice system

are almost always much greater, in my judgment, when the

20

jury is deprived of relevant evidence than when the

consideration of such evidence is enabled and a risk

incurred that it will be considered for improper purposes.

For we can reasonably protect against the latter risk

through careful instructions and thoughtful deliberations.

By contrast, lost evidence will forever taint a decision

that could have been enhanced by the consideration of such

evidence. While recognizing that posttaking rezoning

evidence can be abused, such evidence also carries the

potential to ensure a truer and better-informed calculation

of fair market value. To deprive the jury in this case of

the ability to consider the rezoning is to undermine its

ability to determine the truth in this matter, and thereby

to produce the most accurate possible determination of

“just compensation” to which defendants are

constitutionally entitled.16

Finally, knowing that a jury will be apprised of all

relevant information also may serve felicitously to

16
Contrary to Justice Kelly’s criticism, I am not
attempting to “negate[] the trial court’s role as a
gatekeeper.” Ante at 16. I agree that it is the trial
court’s role to exclude evidence with regard to which “its
probative value is substantially outweighed by the danger
of unfair prejudice . . . .” MRE 403. In view of her
criticism, it is ironic that it is Justice Kelly who would
reverse the decision of the trial court admitting evidence,
finding this to constitute an abuse of discretion.

21

encourage those who testify and who argue before the jury

to do so in a more accurate and precise fashion. For

example, a government witness may be more hesitant to tell

the jury that there was no “reasonable possibility” of a

rezoning if the witness knows that the jury will eventually

be informed that the property has, in fact, been rezoned.

In other words, a government witness may well be less

cocksure in his or her assertion that there was no

“reasonable possibility” of a rezoning if there is a real-

world check upon the witness’s testimony. Under the

majority’s approach, the government will remain free to

tell the jury that absolutely no possibility of a rezoning

existed, and the property owner will be unable to rebut

this assertion by being allowed to inform the jury that the

property has, in fact, been rezoned.17 To allow such a

17
The plurality asserts that the admission of evidence
of a posttaking rezoning would “lead to gamesmanship”
because it “would give condemning agencies every incentive
to postpone zoning plans in order to reduce the price of
just compensation.” Ante at 21 n 35. The plurality,
however, fails to give any attention to the fact that the
exclusion of such evidence will give the government the
ability to paint a false or distorted picture of the worth
of property in the face of a contrary reality. That is,
while the admission of such evidence may lead to
gamesmanship outside the courtroom, the exclusion of the
evidence may lead to gamesmanship inside the courtroom.
Besides the fact that the inclination of a government to
engage in gamesmanship outside the courtroom may say much
Footnotes continued on following page.

22

distorted picture of the reality surrounding the exercise

of a constitutional power, to the benefit of the government

and to the detriment of the property owner, is to undermine

the integrity of the constitutional process.18

about its inclination within the courtroom, this Court must
necessitously be most concerned about conduct within the
courtroom. Maintaining the integrity of the legal process
is one of our principal charges. Presumably, the political
processes are available to address the conduct of
governments that seek to thwart evidence in order to deny
their own citizens fair market value for their “taken”
properties.

Moreover, gamesmanship outside the courtroom is far
less likely to arise than gamesmanship within the
courtroom. Many factors play a role in a government’s
decision whether or not to rezone property; how much the
government will have to pay for property that has already
been condemned is only one of these factors. On the other
hand, during a trial in which the exclusive issue is how
much does the government have to pay for the condemned
property, the government’s dominant interest will always be
to paint a picture of property of as little market value as
possible.
18
The plurality contends that my concern is misplaced
because it was the city of Novi’s decision to rezone the
property, not MDOT’s. Ante at 29 n 43. However,
regardless of which governmental entity decided to rezone
the property, it cannot be disputed that the majority’s
decision to exclude evidence of the posttaking rezoning is
beneficial to the government and detrimental to the private
property owner.

23

 For these reasons, I conclude that the trial court did

not abuse its discretion in admitting evidence of the

posttaking rezoning.19

E. EVIDENCE THAT POSTTAKING REZONING WAS CAUSED BY TAKING

A posttaking rezoning is admissible only as evidence

that a “reasonable possibility” of a rezoning existed at

19
Although I conclude that evidence of a posttaking
rezoning is admissible, I would caution that in admitting
such evidence the trial court must carefully instruct the
jury, as it did here, that the jury is to determine the
market value at the time of the taking and that evidence of
a posttaking rezoning is to be used only for the purpose of
determining whether there existed at the time of the taking
a “reasonable possibility” of rezoning. That is, the trial
court must ensure that the jury does not “assign[] inflated
significance” to the posttaking rezoning. Ante at 22 n 36.
As the New Jersey Supreme Court has explained:

[A]n amendment of the ordinance which came
into being after the date of taking should not be
excluded solely because of the time sequence.
But such evidence should be carefully confined to
its proper role. It may serve only to support
the reasonableness of the factual claim that on
the date of taking the parties to a voluntary
sale would have recognized and been influenced by
the probability of an amendment in the near
future in fixing the selling price. The fact
would still remain that on the date of taking the
property was otherwise zoned, and the value as of
that date must still be reached on the basis of
facts as they then would have appeared to and
been evaluated by the mythical buyer and seller.
[Gorga, supra at 118.]

24

the time of the taking.20 A rezoning that was caused by the

taking obviously does not constitute evidence that a

“reasonable possibility” of a rezoning existed at the time

of the taking. In other words, a posttaking rezoning that

was caused by the taking is simply not relevant evidence in

support of fair market value at the time of the taking.

Therefore, “[t]he effect on market value of the

condemnation proceeding itself may not be considered as an

element of value.” Silver Creek, supra at 379, n 13,

citing MCL 213.70(1),21 and In re Urban Renewal, Elmwood

20
In determining the weight to be given to a
posttaking rezoning in considering whether there existed a
“reasonable possibility” of a rezoning at the time of the
taking, the jury should consider the totality of the
circumstances, including the time that has elapsed between
the taking and the rezoning, the complexity of the project
and the extent to which planning for such project must have
predated the taking, changed circumstances within the
jurisdiction creating or affecting the need for such
rezoning, the nature of changes in the composition of the
pertinent zoning body and within the relevant political
jurisdiction and the extent to which such changes were
foreseeable, the credibility of public authorities on the
circumstances surrounding a rezoning, the extent to which
the taking itself caused the rezoning, and any reasonable
inferences that can be drawn from the fact of an actual
rezoning.
21
MCL 213.70(1) provides, in pertinent part:

A change in the fair market value before the
date of the filing of the complaint which . . .
was substantially due to the general knowledge of
Footnotes continued on following page.

25

Park Project, 376 Mich 311, 318; 136 NW2d 896 (1965).

“[A]n actual change in zoning cannot be taken into account

if it ‘results from the fact that the project which is the

basis for the taking was impending.’” Roach v Newton

Redevelopment Auth, 381 Mass 135, 137; 407 NE2d 1251

(1980), quoting 4 Nichols, Eminent Domain (rev 3d ed), §

12.322[1], n 7.1. See also State v Kruger, 77 Wash 2d 105,

108; 459 P2d 648 (1969); People ex rel Dep’t of Pub Works v

Arthofer, 245 Cal App 2d 454, 465; 54 Cal Rptr 878 (1966);

Williams v City & Co of Denver, 147 Colo 195, 202; 363 P2d

171 (1961). The trial court itself recognized that, if the

posttaking rezoning was caused by the taking, the jury

should not consider the posttaking rezoning when

considering whether a “reasonable possibility” of a

rezoning existed at the time of the taking, as it

instructed the jury: “if there was a reasonable

possibility, absent the threat of this condemnation case,

that the zoning classification would have been changed, you

should consider this possibility in arriving at the value

of the property on the date of taking.” (Emphasis added.)

the imminence of the acquiring by the agency
. . . shall be disregarded in determining fair
market value. Except as provided in section 23,
the property shall be valued in all cases as
though the acquisition had not been contemplated.

26

However, the trial court, for reasons that are unclear,

refused to allow MDOT to present evidence that the

posttaking rezoning may have been a result of the taking.22

The Court of Appeals dissent relied on MCL 213.73 to

conclude that the trial court did not abuse its discretion

in excluding evidence that the posttaking rezoning was

caused by the taking.23 MCL 213.73 provides, in pertinent

part:

22
The plurality concludes that the trial court erred
in admitting evidence of the posttaking rezoning and that
this error was not harmless because: (1) “the jury no doubt
believed that the fair market value of the property on the
date of the taking was to be calculated as if rezoning were
a fact,” ante at 30 (emphasis in the original), a curious
conclusion given that the trial court specifically
instructed the jury that it was to determine what the fair
market value of the property was “as of the date of taking”
and the jury was made well aware that the rezoning did not
take place until 2 1/2 years after the taking; and (2) “the
trial court sorely compounded the error by refusing to
allow MDOT to rebut the posttaking evidence by
demonstrating that the rezoning was directly attributable
to the condemnation itself.” Ante at 30. As explained
above, I agree with the majority that the trial court
abused its discretion in refusing to admit MDOT’s evidence.
However, I disagree with the majority that the appropriate
resolution is to remand for a new trial in which both
defendants’ and plaintiff’s evidence is excluded. Instead,
I would remand for a new trial in which both plaintiff’s
and defendants’ evidence is admitted.
23
The Court of Appeals majority did not address this
issue, concluding that “[i]n light of our ruling [that the
trial court abused its discretion in admitting evidence of
the posttaking rezoning], we need not address whether the
trial court abused its discretion in prohibiting plaintiff
Footnotes continued on following page.

27

 (1) Enhancement in value of the remainder of
a parcel . . . shall be considered in determining
compensation for the taking.

(2) When enhancement in value is to be
considered in determining compensation, the
agency shall set forth in the complaint the fact
that enhancement benefits are claimed and
describe the construction proposed to be made
which will create the enhancement.

The dissent concluded that because MDOT “did not plead in

its complaint any benefit to defendants’ remaining property

as a result of its construction project,” the trial court

did not abuse its discretion “when it prevented [MDOT] from

presenting evidence that the rezoning occurred as a result

of its construction project . . . .” Slip op at 4. I

respectfully disagree. MCL 213.73 is applicable where the

condemning agency attempts to reduce the amount of “just

compensation” on the basis that the condemnation actually

increased the value of the remaining property that was not

condemned. MDOT attempted to introduce evidence here that

the rezoning was the result of the condemnation, not to

show that defendants’ remaining property was enhanced by

the condemnation, but to show that when the taking occurred

there was not a “reasonable possibility” of a rezoning. In

other words, MDOT did not contend that it should pay less

from introducing evidence establishing that the rezoning
was caused by the condemnation.” Slip op at 3 n 3.

28

for the fifty-one acres taken because the remaining 284

acres will be worth more than before the taking. MDOT does

not contend that “enhancement in value is to be considered

in determining compensation.” MCL 213.73. To the

contrary, MDOT is arguing that enhancement in value, i.e.,

the subsequent rezoning, is not to be considered in

determining compensation. Therefore, in my judgment, MCL

213.73 simply does not apply here.

III. CONCLUSION

Because I believe that evidence of a posttaking

rezoning is admissible to demonstrate that a “reasonable

possibility” of rezoning existed on the date of the taking,

I do not believe that the trial court abused its discretion

in admitting such evidence. However, I do believe that the

trial court abused its discretion in prohibiting plaintiff

from introducing evidence that the posttaking rezoning was

caused by the taking. Therefore, I would vacate the

decision of the Court of Appeals and remand this case for a

new trial, in which defendants would be allowed to

introduce evidence of the posttaking rezoning and plaintiff

would be allowed to introduce evidence that this posttaking

rezoning was the result of the taking.

Stephen J. Markman

29