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12-P-223                                              Appeals Court

           DONALD E. RODMAN & others1    vs.   COMMONWEALTH.


                              No. 12-P-223.

           Norfolk.       April 9, 2014. - October 7, 2014.

               Present:    Vuono, Meade, & Carhart, JJ.


Eminent Domain, Damages, Expert testimony. Damages, Eminent
     domain. Evidence, Expert opinion, Value. Value.
     Practice, Civil, Eminent domain proceeding.



     Civil action commenced in the Superior Court Department on
March 4, 2002.

     The case was tried before R. Malcolm Graham, J., and a
motion for a new trial was considered by him.


     Thomas J. Carey, Jr. (Bradley C. Pinta with him) for the
plaintiffs.
     John D. Hampton, Assistant Attorney General, for the
Commonwealth.


    CARHART, J.       In 2001, the Commonwealth, through its

Department of Highways, took by eminent domain nearly five acres

of the plaintiffs' 57.7 acre parcel in the town of Foxboro

    1
       John D. Murphy and Daniel J. Lynch, Jr. The plaintiffs
are doing business as Bay State Development Association.
                                                                     2


(town), along with an easement for drainage over an additional

1,112 square feet.    As is their right pursuant to G. L. c. 79,

§§ 8A and 14, after receiving a pro tanto award, the plaintiffs

commenced this action seeking a greater damages award.

Following trial, the jury awarded an amount less than the pro

tanto award and the plaintiffs were ordered to repay the

difference.   Because we conclude that certain evidentiary

rulings prevented the plaintiffs from offering relevant evidence

of value, we vacate the judgment and reverse the order denying

the motion for new trial.

    Background.      The plaintiffs' property is located on Route 1

south, across from Gillette Stadium, home of the New England

Patriots football team.    Approximately fourteen acres on the

northern portion of the property has been used for many years as

a "temporary" parking lot.    The remaining acres were undeveloped

at the time of the taking.    Prior to the taking, the plaintiffs'

property contained 1,800 feet of frontage on Route 1 south, a

State road.   The portion of the property taken included some

1,620 feet of the Route 1 frontage.    Only 170 feet of original

frontage on the northern portion of the property and nine feet

of original frontage on the southern portion of the property

remain.   The zoning district in which the property is located

requires an area of 80,000 square feet and 300 feet of frontage

for buildable lots.
                                                                   3


     The property taken was used to complete an elevated ramp

extending from the Gillette Stadium property, crossing Route 1

north and south, and pouring out over and along the plaintiffs'

former property onto Route 1 south.   There is no access to the

ramp from Route 1 south or Route 1 north.   The only means of

access is from the Gillette Stadium property.   Even before the

taking, some of the plaintiffs' frontage consisted of a hill and

ledge.2

     Town zoning.   In it zoning by-law, the town had created

several zoning districts, some of which overlap.   The use table

in article 4 of the zoning by-law contains an exhaustive list of

land uses and delineates for each zone whether the uses are

permitted, not permitted, permitted with a special permit from

the planning board, or permitted with a special use permit from

the zoning board of appeal.3   Section 4.00A of article 4

specifically prohibits all uses that are not noted in the table

of use.

     All of the property at issue is located in the Special Use

(S-1) District (S-1 district) and also in the Economic


     2
       The record reflects that following the taking by the
Department of Highways, the town of Foxboro took another portion
of the plaintiff's property for purposes of constructing a water
tower and a roadway leading to it.
     3
       For example, storage of high-hazard materials is not
allowed in the Special Use (S-1) District but storage of low-
hazard materials is allowed with a special permit.
                                                                    4


Development Area Overlay District (EDA).   Both of these

districts have stated goals of promoting economic development of

the Route 1/Gillette Stadium corridor.   Indeed, the purpose of

the EDA is to "supplement existing zoning regulations to provide

regulating flexibility to encourage economic development."

Hotels are permitted in the S-1 district with a special permit,

as are commercial storage garages, truck terminals, general

commodity and public warehouses, research and development

facilities, and facilities for storage, manufacture, or

processing of noncombustible materials and of low-hazard wares.

    Section 9.13 of article 9 governs the EDA and provides that

"[b]uildings and land uses within the [EDA] shall be governed by

the pertinent regulations within the [S-1 district], except as

modified by the provisions of this Section 9.13.   Where the base

zoning regulations of the [S-1 district] differ from the

provisions of Section 9.13, the provisions of Section 9.13 shall

govern."   Section 9.13 further specifically identifies uses that

"shall be permitted as of right" within the EDA.   Among the uses

allowed as of right in the EDA are "[a]ll uses permitted as of

right in the [S-1 district]" and hotels if located on the same

lot as the stadium or on an adjacent or contiguous lot under

common or affiliated ownership.   The EDA is silent as to special

permit uses.
                                                                   5


    Trial.   At trial, the plaintiffs sought to show that their

property could be developed to a much greater extent before the

taking than after the taking.   To that end, their civil

engineers created a plan demonstrating that the property could

be divided into lots for which approval under the subdivision

control law is not required (ANR lots), for uses including a

hotel, office buildings, retail space, warehouse/manufacturing

buildings, and the existing parking lot.   They contended that

prior to the taking, they could have created three ANR lots for

a variety of uses, plus the existing parking lot, and a

subdivision of two additional lots in the rear of the property.

They posited that following the taking, the property could be

developed as a subdivision only if access were via a subdivision

road through the existing parking lot and that they would be

limited by the town's 800-foot maximum for dead-end roadways.

    Following the testimony of the plaintiffs' two expert

engineers, including extensive cross-examination by the

Commonwealth, the Commonwealth filed two motions in limine.      The

first motion sought to prohibit the introduction of plans drawn

by the plaintiffs' experts as to certain development uses and

the testimony regarding those plans, and to strike such

testimony already given.   The second motion sought to prohibit

testimony regarding the development approach to value.

Specifically, in their first motion, the Commonwealth took the
                                                                    6


position that the plans drawn up for the purpose of trial were

inadmissible and testimony related to them should be prohibited

and struck.   The Commonwealth argued that any evidence of use

for a hotel, warehouse, or manufacturing facility should be

prohibited and struck as such uses are prohibited in the EDA on

the plaintiffs' property.    The Commonwealth contended that only

the "as of right" uses listed in § 9.13 of the by-law are

allowed in the EDA.4

       With regard to the development theory of value, the

Commonwealth in its second motion, citing CBI Partners Ltd.

Partnership v. Chatham, 41 Mass. App. Ct. 923, 924 n.3 (1996),

argued that because most of the property is essentially vacant

and there were no pretaking plans to develop it, valuation must

be done on a "whole subdivision[] basis," whereby comparable

sales of similar, large parcels of unsubdivided and unpermitted

land are used to determine fair market value.    The Commonwealth

sought to preclude any evidence of the value of individual lots

derived from the property.    The judge allowed both motions and

specifically instructed the jury to disregard any evidence of

potential development of a hotel, manufacturing, or warehouse

use.

       4
       The record does not disclose why the Commonwealth waited
until mid-trial to bring its motions in limine. The
Commonwealth suggests in its brief that it reviewed "in detail"
the plans "at the break" and filed its motion after cross-
examining the plaintiffs' experts.
                                                                     7


    The plaintiffs made an offer of proof that had their expert

appraiser been allowed to consider the development of the locus

as individual lots for hotel, manufacturing, and warehouse uses,

he would have testified that the value of the property before

the taking was $6,365,000 and after the taking was $4,300,000,

resulting in damages of $2,065,000.     Instead, he testified that

the value before the taking was $5,885,000 and after the taking

was $4,306,000, resulting in damages of $1,579,000.     Ultimately,

the jury awarded damages of $600,800, the exact amount the

Commonwealth's expert testified to and less than the pro tanto

award of $765,000.

    Discussion.      The factors guiding an award of damages in an

eminent domain case were restated by the Supreme Judicial Court

in Boston Edison Co. v. Massachusetts Water Resources Authy.,

459 Mass 724, 730-733 (2011) (Boston Edison).     While we

recognize that the Boston Edison case was issued several years

after the trial in this case, it does not deviate from existing

law at the time of trial.     "Where property is taken by eminent

domain, the landowner is entitled to the fair market value of

the property taken at the time of the recording of the order of

taking, as well as 'damages for all injury to the part not taken

caused by the taking or by the public improvement for which the

taking is made.'"     Id. at 731, quoting from G. L. c. 79, § 12.

See Aselbekian v. Massachusetts Turnpike Authy., 341 Mass. 398,
                                                                      8


400 (1960) (Aselbekian).     "The fair market value of the property

taken is the highest price that a hypothetical arm's-length

willing buyer would pay to a hypothetical willing seller in a

free and open market, based on the highest and best use of the

property."   Boston Edison, supra at 731.    Consideration of the

highest and best use is not limited to the use of the property

at the time of the taking but includes "potential uses of land

that a reasonable buyer would consider significant in deciding

how much to pay."   Ibid, citing Skyline Homes, Inc. v.

Commonwealth, 362 Mass. 684, 686-687 (1972) (Skyline Homes).

Indeed, it has long been the rule that in determining damages in

an eminent domain taking case, "the jury should consider not

only the value of the property taken[,] but also the effect of

the taking upon that which is left; and in estimating the value

of that which is taken, they may consider all the uses to which

it might properly have been applied if it had not been taken."

Kinney v. Commonwealth, 332 Mass. 568, 572 (1955), quoting from

Maynard v. Northampton, 157 Mass. 218, 219 (1892) (Maynard).

"In like manner, the effect on that which is left should be

estimated in reference to all the uses to which it was naturally

adapted before the taking.     Damages are not to be awarded in

reference to the peculiar situation or circumstances or plans of

the owner, or to the business in which he happens to be engaged;

but any and all of the uses to which the land considered as
                                                                    9


property may profitably be applied, whether contemplated by the

owner or not, may well be taken into the account by the jury."

Ibid.

       That is not to say that undeveloped properties are valued

as if the reasonably likely future uses already exist.    Nor is

the fact that potential uses may be considered a license to

speculate as to improbable future uses.    Potential uses must be

"reasonably likely" to be considered and "discounts for the

likelihood of their being realized and for their futurity" are

applied.   Boston Edison, supra at 731, quoting from Skyline

Homes, supra at 686.   It has been said that a potential highest

and best use must be "legally permissible, physically possible,

and financially feasible" in order to be factored into a

determination of value.    Boston Edison, supra at 731 n.9.    In

addition, to be admissible, a potential use must be

"sufficiently imminent to be taken into account by a reasonably

prospective buyer in determining a property's price."     Id. at

733.    "But a property owner need not have taken recent steps to

develop a property to its highest and best potential use in

order for a reasonable buyer to recognize the likelihood that

the property can be put to that use in the foreseeable future,

discounting the property's value in view of the risk that a

future potential use might be thwarted and that the profits from

the potential use will be earned in future dollars."     Ibid.
                                                                   10


"While a judge may infer that a property owner's failure to

develop the property in accordance with what the property owner

now claims to be its best and highest use suggests that the

potential use was not reasonably likely, a judge is not bound to

that inference where . . . other evidence suggests that a

reasonable buyer would recognize the reasonable likelihood of

the potential use."   Ibid.

    "Existing zoning restrictions or special permit

requirements limit available uses and may affect the fair market

value of property."   Douglas Envtl. Assocs., Inc. v. Department

of Envtl. Protection, 429 Mass. 71, 76 (1999).   "However, the

fact that a potential use is prohibited or restricted by law at

the time of the taking does not preclude its consideration if

there was a reasonable prospect of rezoning or acquiring a

special permit."   Ibid.

    To be sure, "[a] judge has a 'range of discretion' in

deciding whether to admit evidence that a potential use is

reasonably likely in the foreseeable future," particularly when

that determination turns on whether the grant of a special

permit is reasonably likely.   Boston Edison, 459 Mass. at 732,

citing D'Annolfo v. Stoneham Hous. Authy., 375 Mass. 650, 656

(1978).   The task for the judge is to "avoid unreasonably

restricting the efforts of the owner fairly to show the effect

of the taking upon the market value of the affected property at
                                                                    11


the time of the taking . . . without permitting damages to be

inflated by unduly detailed and confusing proof of speculative

future uses of property having no very direct relationship to

market values at the time of the taking."     Boston Edison, 459

Mass. at 732, quoting from Aselbekian, 341 Mass. at 401.5

     Consideration of potential uses.   Here, at the time of the

taking, a modern professional football stadium was being

constructed across the street from the plaintiffs' property.       In

addition, zoning had been put in place with a stated goal of

allowing regulatory flexibility in facilitating economic

development of the "Route One corridor" in which the taken

property was located.   There is little question that at the time

of the taking, a reasonable buyer would have explored how the

plaintiffs' property could be developed in determining how much

to pay for it.   Even the Commonwealth's expert testified that

performing due diligence prior to purchasing property is very

important and would include "[l]ooking into zoning and what uses

may or may not be allowed on the property."    Thus, whether the

property is properly valued as a whole or by the lot approach,

     5
       The Supreme Judicial Court has suggested that in making
the difficult decision whether to admit or preclude evidence
concerning a potential use, a judge can choose (i) to decline to
admit the evidence or (ii) to admit it and provide a special
question to the jury asking them to "find the fair market value
of the taken property both under the existing use and under the
potential use," with the option of granting a motion for
judgment notwithstanding the verdict. Boston Edison, 459 Mass.
at 732 n.10.
                                                                    12


its value could be enhanced by consideration of the range of

uses that would potentially be allowed on the property.       See id.

at 400.   The Commonwealth's insistence that the historical use

of the property controls its value is misplaced.

    Uses allowed in the EDA.    Having determined that a

reasonable buyer would have explored the uses to which the

property could be put, we turn to the permitted uses in the EDA.

We review the judge's decision on the admission of evidence of a

potential use under the abuse of discretion standard.       See

Boston Edison, 459 Mass. at 732-733.     Working with the

plaintiffs' appraiser, the plaintiffs' expert engineer testified

that the highest and best use was multiuse development including

a hotel, manufacturing facility, warehouse, and retail.       In its

first motion in limine, the Commonwealth argued that the town's

zoning by-law does not allow hotels, manufacturing uses, or

warehouses in the EDA, and the judge expressly prohibited any

evidence that the property could be put to those uses.       The

plaintiffs' engineering experts testified that hotel,

manufacturing, and warehouse uses are allowed in the EDA with a

special permit.   The plaintiffs' experts further testified that

where all of the requirements are met, as they would be here,

special permits generally are granted.

    Interpretation of a by-law is a question of law.        Goldlust

v. Board of Appeals of N. Andover, 27 Mass. App. Ct. 1183, 1184
                                                                     13


(1989).   We discern no ambiguity in the town's zoning by-law.

Section 9.13 under article 9 specifically provides that the uses

within the EDA are governed by the pertinent regulations within

the S-1 district unless modified by the EDA in § 9.13.     The only

uses § 9.13 modifies are those permitted as of right by

expanding the list of "as of right" uses.     In delineating the

uses allowed as of right in the EDA, the by-law makes no mention

of the uses allowed by special permit in the S-1 district.      It

neither restricts nor expands them.     In the absence of anything

in the EDA that modifies the uses permitted with a special

permit in the S-1 district, at the time of the taking, the

plaintiffs were free to seek a special permit for those uses

allowed by special permit in the S-1 district.

    The Commonwealth suggests that to interpret the by-law the

way we do renders it redundant to specifically include "uses

permitted as of right in the [S-1 district]" in the list of uses

permitted as of right in the EDA.     We disagree.   By listing some

uses permitted as of right in the EDA and not addressing uses

already permitted as of right in the S-1 district, the by-law

could have been interpreted as having modified the uses

permitted as of right and having eliminated those not

specifically mentioned.   The drafters wisely prevented any such

ambiguity by specifically including uses permitted as of right
                                                                 14


in the S-1 district in its list of uses permitted as of right in

the EDA.

    On appeal, the Commonwealth changes tack and argues that

the judge prohibited evidence of potential hotel, warehouse, and

manufacturing uses not because they were not allowed in the S-1

district, but because the plaintiffs had offered insufficient

evidence that a special permit would have been granted.    The

Commonwealth did not make that argument to the trial judge.

Where the judge did not explain his reasons for granting the

Commonwealth's first motion in limine, we cannot infer that the

judge granted the motion on grounds that were not argued to him.

Although the Commonwealth cited to Skyline Homes in its first

motion in limine, it did so in the context of its consistent

position at trial and in arguing its motions in limine that

hotel, warehouse, and manufacturing uses are prohibited on the

plaintiffs' property because they are not contained in the list

of uses allowed as of right in the EDA.   So far as the record

reflects, the Commonwealth did not agree that the uses are

allowed with a special permit or argue that the plaintiffs had

failed to show that a special permit, as opposed to a zoning

change, probably would be granted.    We note that in Skyline

Homes, the Supreme Judicial Court referred to as "prohibited" a

proposed highest and best use that under applicable zoning was

allowed only with a special permit.    Skyline Homes, 362 Mass. at
                                                                    15


685, 687.    In that case, however, an application for a special

permit for the proposed use had been denied in the past.       Id. at

688.    That is not the case here.

       Moreover, even if the judge had in mind that the plaintiffs

had to present evidence that a special permit probably would be

granted, their expert testified that in his experience, special

permits generally are granted where no waivers, or other zoning

relief, are required.     Because, as the plaintiffs' plans showed,

no waivers were required for the proposed special permit uses on

their plans, the expert opined that the special permits likely

would be granted.     With discounts for their futurity and

likelihood, we think a reasonable buyer would have considered as

significant the potential for development of special permit

uses, including hotel, manufacturing, and warehouse uses, when

determining the price the buyer was willing to pay.

       In these circumstances, excluding from the jury's

consideration any uses permitted by special permit in the EDA,

including hotel, manufacturing, and warehouse uses, "unfairly

precluded [the plaintiffs] from giving testimony bearing upon

relevant aspects of value."     Aselbekian, 341 Mass. at 400

(citation omitted).     We are mindful that error in exclusion of

evidence is ground for disturbing a judgment only where it has

"injuriously affected the substantial rights of the parties."

G. L. c. 231, § 119, inserted by St. 1973, c. 1114, § 202.      See
                                                                    16


Mass.R.Civ.P. 61, 365 Mass. 829 (1974).     We disagree, however,

with the Commonwealth's contention that any error in precluding

evidence about the uses the property can support or how the

property could be divided was not prejudicial because its expert

testified that the property can be developed in the same way

after the taking as before the taking.    It is true that with the

testimony of its own experts and in cross-examination of the

plaintiffs' experts, the Commonwealth presented evidence that

the property still had the same amount of frontage and could be

developed in the same ways before and after the taking.     As was

said in Southwick v. Massachusetts Turnpike Authy., 339 Mass.

666, 670-671 (1959) (Southwick), however, "[t]he petitioner was

entitled to bring out the relevant facts.    If the reasons for

his opinion could be shown on cross-examination (a) to be

unconvincing, or (b) to result in an overestimate of the value

of the property or of the feasibility of [the potential use], or

(c) to be based on faulty analysis or inadequate investigation,

these matters would go only to the weight of the testimony.

They would not justify excluding the petitioner's testimony and

reasons entirely."   Without question, the excluded testimony

impacted the credibility of the plaintiffs' engineering and

appraisal experts' testimony.   The ultimate determination of

value was a question of fact for the jury who were entitled to
                                                                   17


hear all relevant testimony as to how the property could be

developed before making that determination.

    Precluding the jury from considering all of the potential

uses is enough to warrant a new trial.   Because the same issues

may arise during any new trial, however, we comment briefly on

the remaining issues.

    Valuation of property.    Separate and apart from whether the

property's development potential may be considered when

determining the damages caused by the taking, the plaintiffs

contend they should have been allowed to value the property on

an individual lot basis.   On the record presented to him, the

judge clearly was correct to exclude the individual lot method

of appraisal.

    The Supreme Judicial Court noted in Clifford v. Algonquin

Gas Transmission Co., 413 Mass. 809 (1992) (Clifford), that in

many jurisdictions, "[w]here the land is pure raw land, with no

improvements at all having been made, but there was a showing of

adaptability for subdivision purposes, valuation will generally

be on a whole subdivision basis."   Id. at 816-817, quoting from

4 Nichols, Eminent Domain § 12.B.14[1][a], at 12B-127 (rev. 3d

ed. 1990).   "The accepted rule is that the land will be

considered in its present condition as a whole, with

consideration given to any increment or enhancement in value due

to the property's present adaptability to subdivision
                                                                     18


development."   Clifford, supra at 817.    Other courts have

allowed evidence of valuation based on the lot method of

appraisal where there is "credible evidence of the costs of

subdivision -- e.g., the expense of clearing and improving the

land, surveying and dividing it into lots, advertising and

selling, holding it, and paying taxes and interest until all

lots are sold."   Id. at 819, quoting from United States v.

47.3096 Acres, etc., in Oxford Township, Erie County, Ohio, 583

F.2d 270, 272 (6th Cir. 1978).     Here, where any evidence of the

developmental approach to value was prohibited before the

plaintiffs' appraiser testified, we cannot know whether costs of

development would have been factored in.

    The court in Clifford noted that "no clear rule exists and

that admissibility turns on the particular facts and the extent

to which the development had progressed toward completion."

Clifford, supra at 820.   In Clifford, the court allowed evidence

of valuation based on the lot method of appraisal where the

taking prevented the completion of the second phase of

development, which had already received preliminary approval and

financing to begin construction.     Id. at 820-821.   We are

unaware of a Massachusetts case, however, where the lot method

of appraisal was allowed where, as here, no prior steps had been

taken to divide the property.    Repeatedly, the Supreme Judicial

Court has stated that evidence of unrealized specific
                                                                   19


development plans, rather than the effect upon market value of

the general possibility of such a development, is inadmissible.

See Southwick, 339 Mass. at 671; Aselbekian, 341 Mass. at 400-

401; Clifford, supra at 814.   See also Douglas Envtl. Assocs.,

Inc. v. Department of Envtl. Protection, 429 Mass. at 76,

quoting from Skyline Homes, 362 Mass. at 686 ("Property must not

. . . be valued as if a needed governmental approval were an

accomplished fact.   Rather, the trier of fact should consider

possible uses not yet approved 'with discounts for the

likelihood of their being realized and for their futurity'").

Although the plaintiffs contend the fact that they could have

divided their property into ANR lots rather than lots requiring

subdivision approval distinguishes this case, we are not

convinced.   Their plan included a two-lot subdivision in

addition to three ANR lots, with the ANR lots having access

issues due to steep topography.   Creating the ANR lots was not

in these circumstances a mere formality.   Thus, although the

potential for development and the range of uses that the

property may support are relevant to ascertaining the value of

the property and the effect of the taking, we do not go so far

as to conclude that the property may be valued on an individual

lot basis.   So far as it appears from the record before us, the

whole subdivision approach with appropriate consideration of the

property's development potential is the proper measure of
                                                                    20


damages.   Should the evidence develop differently at any

retrial, it will, of course, be open to the trial judge to

consider anew whether a different method of valuation is

appropriate.

    Admission of development plans.     On any retrial, it will be

within the discretion of the trial judge whether to admit the

plaintiffs' plans that were created for the sole purpose of

demonstrating damages at trial.    Evidence about the details of a

"particular unexecuted project, . . . as distinguished from

evidence about the contribution to the then existing market

value" attributable to the possibility of development, is not

admissible.    Southwick, 339 Mass. at 669.   See Clifford, 413

Mass. at 815, quoting from 4 Nichols, Eminent Domain, supra at

§ 12B.14[1], at 12B-126 (improbable developments or plats

"hastily drawn up for the mere purposes of trial tactics" are

inadmissible).   Our cases reveal the dichotomy between

precluding plans created for the purposes of litigation that are

too detailed on the one hand and providing proof that uses

claimed to be the highest and best use are "legally permissible,

physically possible, and financially feasible" on the other.

Boston Edison, 459 Mass. at 731 n.9.    Here, the judge described

the plans as detailed and sophisticated, and the Commonwealth

contends they would mislead the jury into concluding that

necessary approvals had been obtained for development.      Were we
                                                                  21


required to decide the issue, it is unlikely we could say the

judge abused his discretion in precluding the plans.

      We note, however, the difficult position the plaintiffs are

in.   In Aselbekian, the Massachusetts Turnpike Authority took

approximately nineteen acres of the plaintiff's fifty-one acres,

which historically had been operated as a dairy farm.

Aselbekian, 341 Mass. at 399.   At trial, there was testimony

that the taking eliminated the usefulness of the property for a

dairy farm and that the highest and best use would be for

development into house lots.    Id. at 399-400.   An expert

testified in some detail about the value of the property for

this use and submitted a plan showing how the property could be

developed into residential lots.   Ibid.   While noting that

"[t]he plan, of course, had no proper place in this case except

to illustrate the physical possibility that the land . . . could

have been divided into [residential] lots," the Supreme Judicial

Court concluded that the judge was within his discretion to

admit it even though it was "a matter which . . . could have

been stated with less risk of misleading the jury without use of

a plan."   Id. at 401.   The Supreme Judicial Court commented that

the judge, in his discretion, could reasonably have refused to

admit the plan as an exhibit, while permitting it to be used as

a chalk.   Id. at 402.
                                                                    22


    While Aselbekian is instructive, explaining a residential

subdivision to a jury is markedly different from explaining the

range of uses allowed in the EDA, some of which would require

sophisticated planning.   Charged with introducing evidence that

the property is amenable to uses that are permitted, physically

possible, and financially feasible, it is difficult to conceive

how the plaintiffs could have met their burden without the use

of preliminary plans, at least as a chalk.   Some level of detail

was required to support their claim that the land could be

developed for the proposed uses without the need for waivers

and, therefore, special permits likely would be allowed.     As the

plaintiffs' counsel argued at trial, had the plans been less

detailed, the Commonwealth would have argued that potential

development for the proposed uses was speculative.

    The plans showed where buildings could be placed and also

showed that the plans, as drafted, would require no waivers.       At

any retrial, the judge will need to balance the need for the

visual assistance to aid the jury's understanding with the risk

of misleading the jury.   It would seem that, at a minimum, clear

labels on the plan and proper instructions reiterating the

purpose of admission of the plans would be warranted should the

plans be admitted into evidence.   In addition, a view would go a

long way toward eliminating the potential for confusion.     See

Clifford, 413 Mass. at 821 (where the jury were taken on a view,
                                                                   23


they were "less likely to be confused as to the actual condition

of the property when the expert testified concerning the

proposed subdivision").    Whether specific plans will be

admissible may be the proper subject for a pretrial motion in

limine.

    Pro tanto award.     The plaintiffs argue that the pro tanto

award should have been admitted as evidence of the

Commonwealth's assessment of damages in this case.     We agree

with the Commonwealth that the pro tanto award is in essence a

settlement offer and the judge did not err in declining to admit

it in evidence.    The plaintiffs argue that it was unfair that

the Commonwealth was able to cross-examine their expert with an

earlier appraisal but that the plaintiffs were unable to so with

the Commonwealth's initial valuation of damages.     It is not

clear to us whether the plaintiffs made any effort to preclude

admission of their earlier appraisal as work product or for

other reasons.    We cannot say on this record that it was error

to preclude the admission of the pro tanto award.

                                     Judgment vacated.

                                     Order denying motion for
                                       new trial reversed.
