The Virginia Supreme Court’s recent decision in Helmick Family Farm, LLC v. Comm’r of Highways, No. 1180691 (Aug. 29, 2019) addresses whether evidence concerning the reasonable probability of a rezoning is admissible in a condemnation proceeding. “While we have not directly addressed whether evidence concerning the reasonable probability of a rezoning is admissible in a condemnation proceeding, our previous decisions foreshadow the answer to this question.” Helmick Family Farm, LLC v. Comm’r of Highways, No. 1180691, at 10–11 (Aug. 29, 2019). The Court held that a reasonable probability of rezoning is admissible. A copy of the opinion is available at
http://www.courts.state.va.us/opinions/opnscvwp/1180691.pdf

The lower court had decided that the evidence of the possible rezoning was “too speculative and remote.” Helmick concludes that “the reasonable prospect of a favorable rezoning has an effect on the market value of the property,” and therefore the evidence should be admitted. It is important to note that the landowner has the burden of “proving a reasonable probability of rezoning.” The two elements that the landowner must prove are that (1) the “evidence relating to the likelihood of rezoning” must rise to the level of a probability, and (2) a “reasonable probability of rezoning must be in the near future.” If the evidence falls short of either of these factors, the evidence will be excluded.

There are several relevant factors that can be used to show “a reasonable likelihood of rezoning.” These factors include: “the rezoning of nearby property, growth patterns, change of use patterns and character of neighborhood, demand within the area for certain types of land use, sales of related or similar properties at prices reflecting anticipated rezoning, physical characteristics of the subject and of nearby properties and, under proper circumstances, the age of the zoning ordinance.” It will be important that practitioners follow the court’s guidelines to be sure that such values are not speculative.