Highest Price

   1. "We have clearly defined the term 'fair market value' that is to be used in condemnation cases." "Generally the value of property taken in condemnation proceedings is its market value, defined as 'the highest price estimated in terms of money which the land would bring if exposed for sale on the open market, with reasonable time allowed in which to find a purchaser, buying with knowledge of all the uses and purposes to which it was adopted (sic) and for which it was capable.'" [quoting Zillich, #67]  Wheeler v. State, Dep't Transportation, 105 Nev. 217, 218, 773 P.2d 728 (1989) (#77)
    2. An appraiser may testify as to "most probable price" where he states that this is equivalent to "the highest price". Id. at 218 (#77)

    3. Change in definition of "value" in NRS 37.009(6), from "highest price" to "most probable price" is constitutional. County of Clark v. Buckwalter, 115 Nev.Adv.Op. 11 (1999).

     4. "(T)o the extent that NRS 37.009(6) contradicts Wheeler, we explicitly overrule Wheeler on this issue." Id. at 3. "We conclude that these two terms have different meanings, and that the district court committed reversible error by giving the "highest price" instruction because it likely affected the jury's verdict. Id. at 4. The court "will presume a substantial change in the law when a statute is amended to change a definition previously used." Id. at 5. "In the case at bar, the landowners misused and abused the "highest price" instruction in their closing argument to justify the five million-dollar difference in value." Id. at 6. "Ironically, the landowners' closing argument exemplifies the exact type of misuse and abuse of the Wheeler instruction that the legislature was trying to eradicate by changing the law." Id. at 6-7.

    Maupin concurring: Statute is constitutional, but does not repeal Wheeler, since the terms are synonomous. Id. at 7-8. "I take this position because the industry, that is persons in the business of appraising real estate, do not seem to regard the terms "highest price" and "most probable price" as comprising anything other than a distinction without a difference." Id. at 8. "The problem at trial was created by the failure to instruct on the statute and, later, the forensic approach taken during closing argument." Id. "Thus, it was the instruction and the arguments made in connection with the instruction that form the need for a second trial below." Id. at 9. "(T)he appraisal industry does not draw such a distinction." Id. "If juries are instructed as I suggest, and if jury arguments are kept consistent with the instructions, just compensation to all parties will be realized. For example, on re-trial, the county will certainly be free to argue that the most probable price for the subject property based upon its highest and best use should not include speculative casino development." Id

[Notice the definition of fair market value in a different context. Neither "highest" nor "most probable" is necessary to the definition::
"Fair market value is generally defined as the price which a purchaser, willing but not obliged to buy, would pay an owner willing but not obliged to sell, taking into consideration all the uses to which the property is adapted and might in reason be applied." Unruh v. Streight, 96 Nev. 684, 686, 615 P.2d 247 (1980). (creditor's deficiency judgment case) (As an aside, the Nevada Court once mistakenly substituted the word "adopted" for "adapted" in the definition and repeated the (originally typographical) mistake so often that one started to doubt the Court's collective literacy.)

    5. "Under federal and state constitutional law, condemnation of private property requires the condemnor to pay just compensation. Constitutional principles provide that just compensation is measured by the fair market value of the condemned property. NRS 37.009(6) defines fair market value as the 'most probable price," which this court has held is constitutional." County of Clark v. Sun State Properties, 119 Nev. 329, 335, 72 P.3d 954 (2003)

    6. "The landowner is entitled to just compensation for the government's taking of private property [fn to Nev. Const. art. 1, sec. 8] and has the burden of establishing the value of land so taken. [fn to State v. Pinson, 66 Nev. 227, 237-238, 207 P.2d 1105, 1110(1949)] Just compensation is determined by the property's market value 'by reference to the highest and best use for which the land is available and for which it is plainly adaptable.' [fn. to County of Clark v. Alper, 100 Nev. 382, 386-87, 685 P.2d 943, 946 (1984)] However, such use must be reasonably probable. [fn to County of Clark v. Buckwalter, 115 Nev. 58, 63, 974 P.2d 1162, 1165 (1999)] In general, the trier of fact may consider zoning restrictions permitting a viable economic use of the property in determining the property's value. [fn to Alper, 100 Nev. at 389, 685 P.2d at 948] In fact, the district court should give 'due consideration...to those zoning ordinances that would be taken into account by a prudent and willing buyer. [fn: Id. at 390, 685 P.2d at 948] City of Las Vegas v. Bustos, 119 Nev. 360, 362, 75 P.3d 351 (2003)
[Ed: City argued that it was required to defer to the general or master plan and that the district court could not reasonably conclude that the city would grant a zoning change in noncompliance with its master plan. The city's own planning supervisor testified that the zoning change would require an amendment to the master plan, but that spot zoning is "fairly common" and that the city council frequently proceeds contrarily. Court held that "the district court's findings of fact will not be disturbed on appeal if they are supported by substantial evidence" and that the district court "determined that a reasonable and prudent buyer would conclude that he or she could likely obtain a zoning change, given the character of the neighborhood, the high volume of traffic on Alta Drive, and the surrounding properties." The district court likely didn't appreciate hearing the city argue for rare adherence to its master plan. This case doesn't say anything new, but does at least keep the condemnor from hiding behind its master plan and is instructive for the practitioner.]

    7. "The trier of fact may consider the effect of future rezoning or // variances on the highest and best use of the condemned property when determining its value." City of Las Vegas v. Bustos, 119 Nev. 360, 362, 75 P.2d 351 (2003)