Justice Wayne Saitta
At issue in this condemnation action was the compensation to be awarded claimant for condemnor's taking of the subject property. The property was encumbered by a deed restriction limiting development of the area of an easement over two stories. Claimant argued the highest and best use of the property was not the existing gas station, but to develop a 12 story mixed use residential and commercial building. It noted there was a reasonable probability the property would be rezoned permitting mixed use, and the appraiser valued the rezoned property at $10.5 million. Condemnor argued there was no reasonable probability the property would be rezoned, and the existing use as a gas station was the highest and best use, valuing the property at $4.3 million. The court found the mixed use building proposed by claimant would violate the deed restriction. It stated claimant's appraiser failed to offer evidence the building proposed was legally possible despite the deed restriction, or that such building was the highest and best use for the property. The court found the highest and best use of the site was as a gas station, finding the value for the property for condemnation purposes on the date of vesting was $5 million.
