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STATE OF MICHIGAN
COURT OF APPEALS


MICHIGAN DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellant, v HAROLD R. WEAVER and CLARA WEAVER, Husband and Wife, and CLARA WEAVER TRUST, HAROLD R. WEAVER TRUST, and HAROLD R. and CLARA WEAVER CHARITABLE REMAINDER UNITRUST, under a trust agreement dated December 31, 1998, Defendants-Appellees.

UNPUBLISHED June 27, 2006

Nos. 257798 & 257799 Kent Circuit Court LC Nos. 00-10127-CC & 0010128-CC

MICHIGAN DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellee, v HAROLD R. WEAVER and CLARA WEAVER, Husband and Wife, and CLARA WEAVER TRUST, HAROLD R. WEAVER TRUST, and HAROLD R. and CLARA WEAVER CHARITABLE REMAINDER UNITRUST, under a trust agreement dated December 31, 1998, Defendants-Appellants. Nos. 258087 & 258088 Kent Circuit Court LC Nos. 00-10127-CC & 0010128-CC

Before: Owens, PJ, and Saad and Fort Hood, JJ PER CURIAM. Plaintiff appeals as of right the trial court's judgment on the verdict. Defendants appeal the court's order denying their motion to determine plaintiff's liability for costs and attorney

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fees. These cases arose as condemnation actions for the construction of M-6. They were consolidated at trial and have been consolidated on appeal. We affirm. On September 29, 2000, plaintiff executed two declarations of taking with respect to different parcels of property owned by defendants for the purpose of constructing M-6 through Gaines Township, Kent County. The estimated just compensation was $143,050 and $27,005 respectively. When defendants refused the good faith offer and the parties could not agree on a purchase price, plaintiff filed the respective condemnation actions and demanded a jury. Plaintiff's expert, real estate broker and appraiser Donald Kishman, testified that he used a sales comparison approach. He determined that the highest and best use of the property was to separately sell the two-story colonial and the farm house located on the property, then sell the vacant land to a developer for the purpose of developing a residential subdivision. He accordingly performed three sales comparison analyses. He determined that the colonial was valued at $126,500, the farm house was valued at $81,500, and the 13.65 acres of vacant land were valued at $17,940 an acre for a total of $244,900.1 Kishman adjusted for substantial differences in size, differences in dates of sale, and distance from defendants' property as well as for available frontage and usable land. Kishman acknowledged that defendants' property had electric and public water available to it from both streets adjoining the triangular-shaped parcel, a fiber optic cable television line running along a utility easement across the property, and available sewer nearby. He conceded that a residential subdivision could be developed on defendants' property without additional road construction. He did not, however, adjust for these costs of development when comparing defendants' property with the comparable sales. Defendants' expert appraiser Allen Rietberg, on the other hand, used the subdivision development approach to valuation of the raw land; although he agreed that the sales comparison approach to raw land valuation was usually the most reliable, he found that there were insufficient comparable properties that had sold in the last several years given the unique configuration of, and service availability to defendants' property. Instead, he found comparable subdivision lots and, generally relying on information provided to him from defendants' expert in development Thomas Burgess,2 backed out the costs to arrive at a figure indicating the most a developer would pay for a parcel of property with similar configuration and service availability.

Defendants' expert Allen Rietberg valued the colonial at $138,500 and the farmhouse at $79,500. Because there was little difference between the respective house valuations, and the respective house valuations are sparingly referred to on appeal, these valuations do not appear to be at issue. Burgess testified that he laid out 26 buildable lots, he determined the total cost to engineer, survey, run sewer, and grade the property was $186,000. He arrived at his estimate by consulting previous bids. The total estimate consisted of $6,000 for zoning and preliminary costs, $30,000 for engineering and surveying, $130,000 to run sewer to the property at $50 a foot, and $20,000 for grading

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Michigan Law