Donald S. Nash and Sylvia K. Nash v. D.C. Redevelopment Land Agency, D.C. Redevelopment Land Agency v. Donald S. Nash and Sylvia K. Nash , 395 F.2d 571 ( 1968 )

PER CURIAM:

These are cross-appeals from a condemnation judgment of the District Court making an award for three parcels of land. The landowners’ appeal asserts that the District Court erred in proceeding with the condemnation proceedings before determining (1) whether certain alleys had been closed and thereby made part of the condemned property, and (2) whether the current zoning classification was correct.¹ In the other appeal, the condemnor Redevelopment Land Agency (RLA) contends that the District Court erred when it admitted evidence of an allegedly unconsummated offer of settlement to show market value.²

The district judge concluded that the alleys were not closed because the Commissioners of the District of Columbia had not taken the necessary action to close them.³ On the zoning issue, he held that the zoning and condemnation cases could not be effectively tried together. Therefore, he did not deal with the merits of the zoning classification but did allow the owners to introduce evidence of the probability of rezoning and that the land was currently used as a parking lot, a non-conforming use.⁴ With regard to the second appeal, the District Court held that the evidence of the condemnation settlement indicated an agreed price and not a mere naked offer, and that it was admissible when offered by the landowner. It regarded the essential issue as one of comparability, as to which it permitted the condemnor to make a full showing.

We affirm, as against both appeals, the judgment entered in the District Court.' The discretion exercised by the district judge with respect to the zoning and alley questions so plainly warrants no correction by us that we do not pursue the matter further. The admissibility of the settlement, however, merits more detailed comment. The owners’ expert witness testified that his original estimate of the value of the neighboring junkyard was that it was worth $5.00 a square foot, and that he later learned that it had been sold to the RLA for $38,-000.⁵ On cross-examination, doubt appeared as to whether the settlement of the junkyard transaction had been completed. The RLA thereupon moved for a mistrial.⁶

The district judge asked both attorneys to approach the bench and discuss the merits of the motion. The RLA’s attorney represented to the judge that the $38,000 offer from the junkyard owners had not been finally accepted by the Justice Department, which has final authority in this area, and presented evidence to this effect.⁷ The judge then stated that if this was only a naked offer of settlement it was inadmissible. The landowners’ attorney responded by pointing out that both the RLA and the junkyard owners were represented by counsel who had negotiated what the landowners thought was a final sales figure. Moreover, he said, they had heard nothing to the contrary since the negotiations. The RLA’s attorney then admitted that his office had recommended to the Justice Department that the offer be accepted, and that he considered it a fair settlement, but urged the offer was still inadmissible because it had not been finally accepted by the Justice Department. The judge told the RLA’s counsel he could not understand why his office was ready to pay $5 a square foot for the junkyard and only $2 in this case. The explanation given by the RLA was that its appraisers considered a junkyard more valuable than a parking lot. The judge said this could be shown by evidence and argued to the jury, and denied the motion. Thus, the judge apparently concluded that, although the processing of the recommendation within the Government had not reached the stage of final acceptance in the formal sense of the completion of all the governmental paper work, the $38,000 was much more than a simple offer and could fairly be admitted.

This conclusion is substantiated by the later testimony of Mr. Blackwelder, the attorney who represented the RLA in the junkyard condemnation litigation and in the negotiations leading to its settlement.⁸ The RLA used this witness to attack again the finality of the $38,000 offer in that he stated the offer was conditioned upon the junkyard owners being permitted to remove certain fixtures and the Government had not agreed to this. On cross-examination, Mr. Blackwelder explained that the junkyard had an RLA appraised value of about $39,400, which included the value of the fixtures. He admitted that the offer of $38,000 was not so different from the appraisal as to cause it to be rejected, and that he had recommended its acceptance. He further characterized his experience to be that, in the normal course of events, his recommendations were accepted by the Justice Department. Thus, in light of the whole record, we find no necessity to hold that the district judge’s action was reversible error.

Although the figure eventually paid by the RLA,⁹ $39,875, was slightly different from the original offer, it was not significant enough to justify reversal. The jury¹⁰ was not misled by the testimony in issue because the value of the land based on the final settlement was $5.30 a square foot.¹¹ Moreover, the district court correctly left the question of comparability with the jury, and the RLA was given ample opportunity to explain the disparity between the value placed by RLA on the junkyard and the property here in suit.

Affirmed.

1 . On the same day as condemnation was begun, the landowners filed an independent suit for equitable relief, alleging ownership of the alleys and that the subject property had been unlawfully rezoned.

2 . The offer was made by a landowner to the RLA in respect of a tract of land which was in the same project area and condemned at the same time as the land here in suit.

3 . The applicable statutes are 7 D.C.Code §§ 305, 401 (1907).

4 . The condemnees purchased this property in 1957. In 1958 the zoning classification was changed from C-2 to R-4. The owners contested this rezoning classification twice in 1958 and both times their application for a change of classification was denied without a hearing. The further remedies available to them were not pursued.

5 . On the basis of $38,000, the land would be worth about $6 a square foot. But this figure does not take into consideration any of the appurtenances and is obtained merely by dividing $38,000 by the size of the junkyard, 6,345 square feet. The owners wanted to introduce this because the RLA had only offered them $2 a square foot for their property, which was similarly situated and had the same zoning classification. The only apparent difference was that the property in suit was used as a non-conforming parking lot, whereas the other was a non-conforming junkyard, a factor which the condemnor stressed in its evidence of non-comparability.

6 . The RLA also urged upon the district court and this court that evidence concerning the junkyard transaction was inadmissible because it involved a sale made under the threat of condemnation. The RLA relies on District of Columbia Redevelopment Land Agency v. 61 Parcels of Land, 98 U.S.App.D.C. 367, 235 F.2d 864 (1956), which held that evidence of comparable sales offered by the RLA were inadmissible because the sales were made under condemnation. The district court rejected this argument, and so do we. The reasons which disable a condemnor from putting in evidence of purchases it has made in settlement of condemnation suits have no application to a landowner who offers such evidence himself.

7 . The offers of landowners are submitted to the Justice Department in the form of a stipulation and when the Government accepts the offer it signs the stipulation. The RLA’s attorney presented this stipulation which was signed by the junkyard owners but not by the Justice Department.

8 . Both Mr. Blackwelder and Mr. Liotta, who represented the RLA in the instant case, are attorneys employed by the Department of Justice.

9 . The final balance was not struck until after the completion of the condemnation proceedings. Therefore, the difference between the final settlement and the original offer was first raised on appeal. The difference is explained by the fact that the value of certain fixtures was included in the final settlement whereas it was not in the offer made by the owners of the junkyard.

10 . It is important to note that the jury consists of people who have some expertise in real estate valuation. Also, besides hearing all the evidence, the jury saw the property and the surrounding area.

11 . The $5.30 figure was ascertained in the following manner. The fixtures were appraised to be worth from $4750 to $6000. Assuming that they were worth $6000 and subtracting this from $39,-875 and dividing the result by the size of the junkyard, 6345 sq. ft., the value per square foot is $5.30. This seems to be a fair figure because we are giving the RLA the benefit of the doubt by assuming that the fixtures were worth the highest figure, which tends to reduce the amount paid for the land. Furthermore, the RLA appraised the property to be worth $39,400 and, subtracting the $6000, this is still within the $5.00 range.