as the record will show, Mr. Kane is a real estate broker of vast experience in the City of Pittsburgh, Allegheny County, Pennsylvania, in this district. He is fully qualified and has testified in this Court on many occasions.
The contention of the Government with respect to his testimony is that Mr. Kane gave no consideration whatsoever to the possibility of the property being entirely zoned for commercial use. Also, Government counsel says that the witness considered that the frontage along Frankstown Road is not suitable for commercial development even though it was zoned for commercial use because of the fact that the frontage was elevated above the rest of the lot. According to the Government, Mr. Kane's opinion as to commercial use was restricted to the property along Verona Road.
Plaintiffs then called a real estate broker, Mr. N. Theodore Flocos, who maintains his office in Penn Hills Township and near the property in question. He had a somewhat different viewpoint as to the commercial possibilities of that part of the property along Frankstown Road. He gave the property a fair market value of $ 51,200.00 as of the date of Mrs. Knoell's death. The Government's contention with respect to his testimony was that although he felt that the highest and best use of the property was as commercial property, he gave no consideration whatsoever to the possibility of a zoning change from residential to commercial.
In defense, the Government called two witnesses. One was William P. Jones, chairman of the Board of Commissioners of Penn Hills Township, who testified that had a request for a zoning change from residential to commercial been made prior to Mrs. Knoell's death, in his opinion, it would likely have been granted.
At the trial, the Government stated that it had not had the Knoell Homestead in Penn Hills appraised by a real estate expert prior to April 14, 1964, that is, just a few weeks prior to the trial.
The Government offered the testimony of one Robert C. Shipley, Jr. This witness had not seen the house or the Knoell property until he commenced preparing for the instant trial, nor had he seen the property prior to the ravine being filled in, nor before the new road called Graham Boulevard Extension had been opened and constructed through the property giving it frontage on a third road, and before the Verona Road had been widened. Also say plaintiffs, the witness had not viewed the property before the opening of the East Hills Shopping Center and the phenomenal increase in the traffic around the Knoell Homestead.
At the trial and after hearing the qualifications of Mr. Shipley, as well as the investigation he made prior to coming to Court, it was my feeling that his testimony was of no value whatsoever on the issue in this case. The law of this circuit is clear as laid down in United States v. 13,255.53 Acres of Land, etc., 158 F.2d 874, 876 (3rd Cir. 1946), where the Court held that if a man is to qualify as an expert witness he has to have actual personal knowledge of the facts affecting the land at the time of taking. Mr. Shipley did not qualify as an expert witness.
The only real contention to be discussed is that made by the Government in which it is claimed rezoning possibilities were in existence at the time of the decedent's death which were not taken into account by the executors and their expert witnesses. But it is clear in this case that the witnesses did value the property as to its commercial use and to its possibilities for further commercial use. They did say, however, that their opinion was arrived at without expectation that the property was to be rezoned. In that connection, it is to be noticed that the evidence shows that some years prior to Mrs. Knoell's death an application for rezoning a portion of the property from residential to commercial use was refused by the Local Board. A portion of this property was sold on October 16, 1962. This was over two years and four months from decedent's death. The other portion of the land was sold on May 15, 1963, two years and nine months after the decedent's death. In the mind of Government's counsel, the selling price of the two lots necessarily indicates that the value in the return was understated, but this Court agrees with the contention made by plaintiffs' counsel that this position in the first place entirely disregards the wide publicity given to the so-called 'Master Plan.' It appears that the Pittsburgh Regional Planning Association in 1957 prepared what is known in this area as the Master Plan for development of the various municipalities and areas one of which covered Penn Hills Township. This plan was known, of course, to persons in the real estate business. In this plan a proposed roadway was to run through the middle of the Knoell property and had in fact depressed the desirability of the land from most any viewpoint, as it divided the property into what plaintiffs contend would have been two 'slivers' of land. Further, says counsel for the plaintiffs, it was not until the erection of the East Hills Shopping Center more than a year after decedent's death which brought about a great increase in traffic that the commissioners permitted the rezoning of the Knoell property for commercial purposes. It is important and should be emphasized that at the time of her death there was no rezoning application pending. As a matter of fact, the rezoning was not authorized until January 20, 1962.
Finally, this Court in the trial of this non-jury case was confronted with a situation in which fully qualified witnesses testified on behalf of plaintiffs. They had as a basis of their value what a willing buyer would pay a willing seller. In the opinion of the Court, they considered all the necessary factors in arriving at their respective opinions, including the highest and best use of the property. With regard to the Government's contention that plaintiffs' experts failed to take into account the rezoning possibilities, the proposition, if true, only goes to the weight of the testimony and not to its admissibility. It should be stressed that they considered the commercial usage to which the property was adaptable. This necessarily includes zoning. Again the Government's contention is that the two experts for plaintiffs failed to use the possibility of rezoning as enhancing the value they put on the property as of the date of death. The point to be stressed in this connection is that both witnesses considered rezoning a possibility, but rejected any probability of the property being rezoned in arriving at their opinion. It seems clear to me the Government takes the position that they ignored rezoning. I find and conclude that they considered it, but did not regard rezoning as being a proper factor to be considered in arriving at their value or even influencing it. Each witness had a different reason for rejecting the possibility of rezoning as having a separate and distinct addition to the value of the property. In my opinion those reasons were valid. In the opinion of the Court, the testimony of Messrs. Kane and Flocos was credible and overcame the presumption of the validity of the reassessment.
The Court has read the various decisions cited by Government counsel with regard to the contention that the plaintiffs' experts failed to take into consideration the prospect of a zoning change. All but one of the decisions cited in the Government's brief are land condemnation cases. This Court has no disagreement with these decisions for the reason that the plaintiffs' experts in this case did consider but rejected rezoning as creating an enhanced value of the property.
In conclusion, the Court has not been furnished with a copy of the trial testimony. However, at the close of the case I had a firm conviction that plaintiffs' evidence should prevail. I requested briefs on the Government's contention that plaintiffs' experts failed to take into account rezoning in determining fair market value. This matter has been carefully considered, and it is believed that the Government's position on this point is without merit in the light of the evidence in this case.
As indicated, I have found the fair market value of the property to be $ 51,200.00, which was the value placed upon it by Mr. Flocos. This will require a recomputation of the amount due plaintiffs by reason of overpayment of estate taxes. Counsel for the parties will in due course prepare an order for judgment. This memorandum will embrace findings of fact and conclusions of law, as permitted under Rule 52.
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