Richard J. Conti v. Rhode Island Economic Development Corporation, et al.

Supreme Court
No. 2004-109-Appeal.
(PM 96-4435)
NOTICE: 	This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Richard J. Conti 	:
v. 	:
Rhode Island Economic Development
Corporation et al.
:

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Supreme Court
No. 2004-109-Appeal.
(PM 96-4435)
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Suttell, for the Court. 	On May 28, 1996, the Rhode Island Economic
Development Corporation (EDC), a public instrumentality empowered to acquire property by
exercise of the right of eminent domain in a manner prescribed by G.L. 1956 § 42-64-9 (the EDC
condemnation statute), condemned a parcel of land on Douglas Pike in Smithfield, Rhode Island,
otherwise designated as Assessor’s Plat 49, lot No. 71 (the subject parcel or the property). The
previous owner of the property, Richard J. Conti (plaintiff), filed a petition in Superior Court
contesting the adequacy of the $158,000 condemnation award. The plaintiff now appeals from a
judgment dismissing his petition based on the trial justice’s finding that Mr. Conti has received
just compensation for the taking. For the reasons set forth herein, we affirm.
I
Facts and Procedural History
Mr. Conti originally purchased the subject parcel on March 7, 1990, for $135,600. 	The
land is largely vacant, containing only a single-family house and several ancillary structures, and
has access to pertinent public utilities. 	The character of the triangular-shaped parcel, which
includes 3.88 acres of rolling topography and an intermittent stream, is secondary in importance
Richard J. Conti 	:
v. 	:
Rhode Island Economic Development
Corporation et al.
:

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to its location. 	The property fronts Douglas Pike for approximately 630 feet and is located
diagonally opposite Bryant University. On its northerly side, the subject parcel is adjacent to the
entrance to the so-called Island Woods Corporate Office Park (the corporate park), a 130-acre
master-planned light industrial and office development.
Although the corporate park claimed only one tenant at the time of the taking,1 two
newspaper articles surfaced in December 1995 that reported a possible relocation of a division of
Fidelity Investments (Fidelity) from Boston, Massachusetts, to Smithfield, Rhode Island, at some
point in the near future.2 A short article published on December 12, 1995, indicated that then
1 The tenant was Alpha Beta Technologies.
2 Although not relevant to the disposition of the case before us, we recount the following incident
for the purpose of chronological completeness. 	In September 1995, a real estate broker
approached Mr. Conti on behalf of a party interested in acquiring an option to purchase the
subject parcel, which Mr. Conti had previously placed on the market. 	The terms of the option,
expressed in an agreement delivered by the broker, provided an option term of approximately six
months and a purchase price of $280,000. 	The option agreement identified a limited liability
company by the name of JGTG as the optionee, with a corporate address of “c/o Peabody &
Arnold.” In consideration of the option, the broker presented a check, which identified Peabody
& Arnold as the drawer, for $1,000. Mr. Conti ultimately rejected the offer, but did not specify
his reasons for so doing.
During the early phases of trial, Mr. Conti’s attorney surmised that the true identity of the
interested party was actually the Rhode Island Economic Development Corporation (the EDC),
and that JGTG was a “straw” corporation “created for the purpose of acquiring land to be used in
conjunction with the Fidelity relocation.” After a series of questions and answers peppered with
defense counsel’s objections, plaintiff’s counsel offered the option agreement into evidence,
premising: “I do not move it as an exhibit with regard to issues relating to price or an offer. So I
would ask the Court to disregard the amount of the proposed purchase. That is not the probative
value that I am asserting for this document.” 	Nevertheless, defense counsel objected on
relevancy grounds. 	In response to the relevancy query, plaintiff’s counsel argued that the
testimony was relevant because “it shows that the defendant took certain steps to maintain
privacy, to maintain secrecy, to maintain, at best, a low profile concerning the acquisition of this
property, it suggests, I think very clearly that there was certainly no scope of impending
condemnation.” 	The trial justice admitted the exhibit based on this explanation, noting that the
relevancy of circumstances surrounding the option agreement may yet come to bear.
While elaboration upon the significance of the option offer may have proved probative,
perhaps even more so than originally suggested by plaintiff’s counsel, there is no indication in
the record that plaintiff later sought to elicit the testimony of the broker, attempted to establish a
link between the EDC and JGTG, or otherwise pursued the matter beyond the narrative
accounted above. 	Further, although plaintiff’s pre-briefing statement submitted to this Court

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Governor Lincoln Almond was planning “to announce a significant economic development
initiative” that morning. Mutual fund giant reportedly moving big office to Smithfield industrial
park, The Providence Journal, Dec. 12, 1995 at B.01. Forecasting the subject of the governor’s
announcement, the article relied upon two anonymous sources who said that Fidelity was
planning to open a large office at the corporate park in Smithfield. Id. Another article, published
on December 25, 1995, reported that “state officials proudly gathered in the governor’s office to
announce that in two to three years, Fidelity * * * would be coming to Smithfield with 1,000
jobs.” Amid job losses, Fidelity offers hope, Providence Business News, Dec. 25, 1995 at 1. The
December 25, 1995 article, however, did not mention the precise location in Smithfield of
Fidelity’s planned relocation. See id.
Approximately two months later, on February 8, 1996, Richard E. Stang, general counsel
for the EDC, informed Mr. Conti by letter that the EDC “may” acquire the subject parcel by
condemnation. 	As Mr. Stang noted, the letter served to notify Mr. Conti that certain of the
EDC’s representatives or agents would contact him over the next several days to discuss the
details of the possible taking. 	Mr. Stang also indicated that the EDC had contracted with the
Rhode Island Department of Transportation (RIDOT) to use the services of certain of its
employees, presumably for purposes of appraising the subject parcel. 	The February 8, 1996
letter, however, did not refer to Fidelity or the planned relocation associated with it.
assigned error to the trial justice’s failure to consider the evidence surrounding the option offer,
plaintiff declined to advance that argument in his brief or at oral argument. Because plaintiff has
failed to brief this argument pursuant to Article I, Rule 16(a) of the Supreme Court Rules of
Appellate Procedure, and because facts necessary for its disposition were not fully established at
trial, we deem the argument, however viable it may have been, waived. See, e.g., Catucci v.
Pacheco, 866 A.2d 509, 515-16 (R.I. 2005) (holding that the failure to brief an argument, or raise
it at oral argument, resulted in waiver).

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Later, in a letter dated April 12, 1996, Robert P. Fox, Jr. of Peabody & Arnold informed
Mr. Conti that the law firm represented the EDC “in connection with the EDC’s acquisition of
certain real property and construction of a project in Smithfield, Rhode Island.” The letter went
on to recount a dialogue that does not otherwise appear in the record:
“As Richard Stang of the EDC and I discussed with you
several days ago, it is expected that the EDC will take the
referenced 	property 	by 	eminent 	domain 	pursuant 	to 	the
condemnation powers granted to the EDC * * *.
“This letter is to confirm the EDC’s offer of $158,000 as
compensation for the value of the [subject parcel] taken * * *. The
EDC’s offer is based upon the fair market value for the [subject
parcel] as set forth in an appraisal performed on behalf of the
EDC.” (Emphasis added.)
The letter provided pertinent contact information if Mr. Conti determined that the condemnation
award was acceptable, and concluded by describing the procedure for contesting the amount of
condemnation damages if the property ultimately was condemned. 	Mr. Fox, however, did not
explain, in his letter at least, the nature of the “project” for which Mr. Conti’s property was
“expected” to be condemned.
On May 28, 1996, the EDC filed a petition in Superior Court to condemn the subject
parcel along with four other parcels not at issue in this case that were adjacent to or in the
immediate vicinity of the corporate park in Smithfield. The petition identified Mr. Conti as the
owner of record of the subject parcel, provided a brief description of the property, and indicated
that the appraised value of the subject parcel was $158,000, which amount the EDC estimated to
be just compensation for the taking. 	General statements included in the petition, which were
applicable to all parcels taken, noted that the board of directors of the EDC (the board) had
adopted certain resolutions in which the board:

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“(a) determined that the acquisition by the [EDC] of certain
property or interest therein in Smithfield, Rhode Island, as more
fully 	described 	in 	the 	[resolutions], 	was 	necessary 	for 	the
acquisition, construction or operation of a project by the [EDC],
and (b) authorized the chairperson or the vice-chairperson of the
[EDC] to acquire the interests in the real properties described in
the [resolutions] by means of a taking by eminent domain pursuant
to the [EDC’s] powers under the Condemnation Statute.”
Although the photocopy of the EDC’s petition that plaintiff admitted into evidence did not
include the resolutions referenced therein or otherwise describe the “project,” subsequent
language in the general statements indicated that the EDC had, in fact, attached a copy of the
resolutions to the original petition submitted to the Superior Court on May 28, 1996. 	The
Superior Court granted the EDC’s petition on the day it was filed, ordering that the EDC deposit
with the registry of the court the aggregate appraised value of the properties and interests taken
by eminent domain, from which amount the court would release $158,000 to Mr. Conti in
accordance with the EDC condemnation statute.3
On June 20, 1996, Mr. Fox again contacted Mr. Conti by letter, this time officially
notifying him that the EDC had taken the subject parcel by eminent domain pursuant to an order
of the Superior Court on May 28, 1996. 	Mr. Fox also enclosed a copy of the resolutions
referenced in the petition with the letter. The resolutions, which bear a collective adoption date
of May 28, 1996, purported to authorize executive action concerning the planned relocation of
Fidelity. The first resolution authorized the “Chairman and/or Executive Director * * * to enter
into, execute, deliver and perform certain agreements” with Fidelity:
“such that [Fidelity] shall lease and make improvements upon that
certain property of the [EDC] (currently owned and hereafter
acquired, at and adjacent to the [corporate park] in the Town of
Smithfield, Rhode Island) to locate substantial business operations
of Fidelity to the State of Rhode Island, thereby furthering the
3 The EDC indicated in its petition that according to its estimates fair compensation taken
together for the five condemned parcels amounted to $480,700.

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purposes 	of 	the 	[EDC] 	by 	promoting 	and 	encouraging 	the
preservation, 	expansion, 	and 	sound 	development 	of 	new 	and
existing industry, business, commerce, and recreational facilities in
the State of Rhode Island * * *.”
The same resolution referred to the undertaking as the “Fidelity Project,” defined as follows:
“[T]he acquisition and development of real property in Smithfield,
Rhode Island by the [EDC]; agreements between the [EDC] and
Fidelity 	with 	respect 	to 	the 	location 	of 	substantial 	business
operations of Fidelity to the State of Rhode Island; and any and all
other actions in furtherance of such location of substantial business
activity of Fidelity to the State of Rhode Island and actions related
thereto taken by the [EDC] * * *.”
Subsequent resolutions authorized specific actions concerning the Fidelity Project, which actions
included, but were not limited to, the execution of a lease agreement with Fidelity and financing
arrangements with Fleet National Bank. The resolutions also identified the condemnation of the
subject parcel, along with that of the other four parcels, “as an integral part of and in furtherance
of the Fidelity Project.”
On August 15, 1996, Mr. Conti filed a petition in the Superior Court under the EDC
condemnation statute contesting the adequacy of the condemnation award. 4 Before trial, the
EDC sought to exclude the expert testimony of plaintiff’s real estate appraiser, Thomas S.
Andolfo, by means of a motion in limine. The EDC explained that Mr. Andolfo would predicate
4 In addition to his request for an assessment of damages (count 1), Mr. Conti alleged the
following: that the EDC exceeded its constitutional and statutory authority in condemning
properties adjacent to the Fidelity Project purportedly for a public use (count 2); that the EDC
deprived plaintiff of property without due process of law in violation of the federal and state
constitutions (count 3); that the EDC failed to comply with, and was therefore in violation of, the
Rhode Island Administrative Procedures Act, G.L. 1956 chapter 35 of title 42 (count 4); and that
plaintiff was aggrieved by the unfair and unjust decisions of the EDC (count 5). At the close of
evidence, the EDC moved to dismiss counts 2 through 5, arguing that the case had been tried
with respect to count 1 only (assessment of damages). 	With agreement from the parties, the
court dismissed counts 4 and 5. Further, the court found that Mr. Conti had not met his burden
of proof concerning counts 2 and 3, which the court accordingly dismissed over plaintiff’s
objection. The plaintiff does not challenge the dismissal of counts 2 and 3 on appeal.

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his opinion upon an alleged enhancement in the subject parcel’s market value attributable to the
public announcement of Fidelity’s planned relocation. 	To support its motion, the EDC argued,
with citation to applicable case law, that the alleged enhancement in value upon which Mr.
Andolfo relied in appraising the subject parcel was barred, as a matter of law, as a means of
calculating market value. 	On the first day of trial, November 14, 2002, the trial justice
considered the issue raised in the EDC’s motion but reserved his ruling pending a review of the
EDC’s supporting documents. The next day, the trial justice denied the motion, noting:
“This is a non-jury matter. 	I would just as soon allow the
testimony to come in. 	I think the defense’s continuing right to
object are appropriate, and as we discussed, if the Court determines
on the facts, as this case unfolds, that his testimony is inappropriate
based on the law and based on the facts as I find them to be, that
the Court will do what it is supposed to do which will be disregard
that testimony and the evidence.”
With preliminary matters having been addressed, the trial continued over the next several
days with each side advancing alternative valuation opinions through expert testimony. 	The
plaintiff’s counsel solicited lengthy testimony from Mr. Andolfo, over defense counsel’s
repeated objections, concerning the market value of Mr. Conti’s property on the day it was
condemned. 	In calculating the subject parcel’s market value, Mr. Andolfo primarily relied on
two essential and related premises. The first premise, which was the subject of the EDC’s earlier
motion in limine, posited that the pre-condemnation public disclosure of Fidelity’s planned
relocation, which surfaced in two newspaper articles in December 1995, inflated the market
value of the subject parcel. The second premise, which Mr. Andolfo built upon the first, was that
the most advantageous and valuable use to which the subject parcel could be put was as a
medical office facility. With these premises in mind, Mr. Andolfo (1) identified, in his opinion,
six similarly situated and comparable property sales (comparables), (2) reconciled the sales price

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range of the six comparables with the hypothetical sale of the subject parcel (adjustments), and
(3) determined that the subject parcel, on May 28, 1996, carried a market value of $600,000.
Defense counsel presented three alternate comparables through the expert testimony of
Paul Edwin Vincent, a review appraiser for the RIDOT.5 Unlike Mr. Andolfo, Mr. Vincent
considered that the highest and best use of the subject parcel was as a vacant, industrially zoned
lot ready for development. Further, Mr. Vincent testified that, in his review appraisal, he did not
consider an enhancement in the market value of the subject parcel attributable to any pre-
condemnation public disclosure information concerning Fidelity. 	Mr. Vincent’s proffered
comparables, accordingly, differed from those relied upon by Mr. Andolfo and led Mr. Vincent
to conclude that the market value of the subject parcel on May 28, 1996, was $158,000.
5 The Rhode Island Department of Transportation (RIDOT) conducts tiered and oftentimes
simultaneous appraisals of parcels under threat of condemnation. During trial, Ann Hollands, the
administrator of the RIDOT’s real estate section, explained that the RIDOT’s appraisal process
consists of both primary and review appraisals. 	The primary appraisal is conducted by either a
fee appraiser or a staff appraiser, depending on the complexity of a given appraisal or the volume
of appraisals before the RIDOT at a given time. 	As the names suggest, a staff appraiser is an
employee of the RIDOT, and a fee appraiser conducts an appraisal on behalf of the RIDOT for a
fee. 	The primary appraisal conducted by either type of appraiser then is evaluated by a review
appraiser, who ultimately is responsible for determining the market value of the subject parcel.
Paul Edwin Vincent, defendant’s expert witness, explained his role as a review appraiser during
trial: “[a r]eview appraiser basically replicates the steps of an appraiser in researching real estate
for market value determinations and then approves or disapproves appraisal reports submitted to
him by appraisers staff or outside appraisers and basically has the obligation to set the market
value determination for the State.” 	Those steps, Mr. Vincent continued, involve the same
substantive analysis employed by the primary appraiser, whether internal or external, and include
“research[ing] the market, research[ing] the site, investigat[ing] town records in regard to
comparable sales and all matters pertaining to the value of the property.” 	The review appraisal
and the primary appraisal, Mr. Vincent noted, typically are conducted concurrently.
In this case, staff appraiser John Paul Ryan, whom plaintiff’s counsel called as an adverse
witness, conducted the primary appraisal of the subject parcel, while Mr. Vincent conducted the
concurrent review appraisal. 	Based on the testimony above, the trial justice found that Mr.
Vincent made his own findings and recommendations irrespective of Mr. Ryan’s, and thus the
court proceeded to evaluate the merits of the review appraisal despite plaintiff’s attempt to
criticize the primary appraisal by calling Mr. Ryan as an adverse witness.

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At the close of the evidence, the trial justice requested posttrial memoranda from the
parties and took the matter under advisement, issuing a written decision on June 26, 2003. In his
decision, as a threshold matter, the trial justice rejected Mr. Andolfo’s opinion that the subject
parcel was entitled to an increment in market value solely attributable to the public pre-
condemnation disclosure that Fidelity eventually would become a tenant at the corporate park in
Smithfield. 	With reference to a rule of law known as the scope-of-the-project rule and with a
citation to an opinion of this Court in Fuller v. Rayhill, 120 R.I. 832, 391 A.2d 103 (1978), the
trial justice found:
“That the acquisition of the subject property was at all times
within the Scope of the Fidelity Project as outlined and announced
by the defendant EDC [in the condemnation petition and attached
resolutions] * * *.
“That the argument of the plaintiff Conti for an enhanced
valuation of $600,000.00 leased [sic] on the announcement of the
Fidelity Project—with respect to the subject property was contrary
to the facts and law in this case.
“* * *
“That the expert testimony of the plaintiff’s expert Thomas
Andolfo, that the value of the subject property of $600,000.00 for a
medical office building based on the enhancement value of the
subject property by the Fidelity Project, shall not be considered by
the Court as relevant, probative and material in this case.”
The trial justice continued his decision by summarizing at length the testimony of the
parties’ expert witnesses. 	Prefacing his description of the parties’ respective comparables, the
trial justice said:
“The Court has already ruled 	that this testimony of Mr.
Andolfo was based on an enhanced value of the subject property
which this Court has ruled cannot be enhanced by the Fidelity
project so called, because the subject property was within the
scope of the initial project. Mr. Andolfo had also testified that the
value of the subject property without enhancement by the Fidelity

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project would be $427,000.00, and its highest and best use would
be a general office building.”6
The trial justice then began to sift through and evaluate the evidence that the experts relied upon
in reaching their respective conclusions. 	Set forth in a series of findings, the trial justice
accepted Mr. Vincent’s opinion that the real estate market condition in Smithfield was “at best
flat or declining,” endorsed his opinion about highest and best use, approved of his comparables,
despite documented imperfections, and, therefore, adopted his market value determination.
While recognizing Mr. Andolfo’s strong credentials, the trial justice was not persuaded by his
opinion in this case. 	The trial justice drew particular attention to deficiencies in plaintiff’s
comparables concerning location and market conditions, and further noted:
“It is obvious that the analysis of the six comparables was
made in expectation that a medical office building was the highest
and best use of the subject property. 	Once the determination was
made that the enhancement theory espoused by the plaintiffs was
not successful, the sites selected by the plaintiff lost their probative
value when contrasted with the location of the subject property and
the market conditions in the area of this location.”
Consequently, the trial justice found, by a preponderance of the evidence, that $158,000
represented fair compensation for the subject parcel and, therefore, dismissed plaintiff’s petition.
Judgment entered on September 30, 2003, and plaintiff timely appealed.
II
Discussion
A. Standard of Review
“When reviewing the decision of a trial justice sitting without a jury in a land-
condemnation proceeding, this Court accords great weight to the trial justice’s findings.
6 During direct examination by plaintiff’s counsel, Mr. Andolfo testified that, assuming the
subject parcel could not benefit from its proximity to Fidelity’s relocation, the subject parcel’s
highest and best use would be as a general professional office building, and would, in that
instance, carry a market value of $427,000.

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Consequently, we shall not disturb such findings on appeal unless it is demonstrated that the trial
justice 	misconceived 	or 	overlooked 	material 	evidence 	or 	was 	otherwise 	clearly 	wrong.”
Mastrobuono v. The Providence Redevelopment Agency of Providence, 850 A.2d 944, 946 (R.I
2004) (quoting Serzen v. Director of the Department of Environmental Management, 692 A.2d
671, 675 (R.I. 1997)).
B. Value Enhancement
The parties apparently agree, on appeal at least, that the scope-of-the-project rule does
not apply to the facts presented in this case, but disagree over the necessary consequence of that
conclusion. The plaintiff argues that, irrespective of the applicability of the scope-of-the-project
rule, 	the 	trial 	justice 	committed 	reversible 	error 	by 	ignoring 	the 	effect 	of 	the 	state’s
“announcement” that Fidelity planned to relocate part of its operations to the corporate park in
Smithfield. 	The plaintiff contends that the enhanced market value of the subject parcel
attributable to that “announcement,” which plaintiff ascribes to the two newspaper articles
published in December 1995, should have been reflected in Mr. Conti’s condemnation award as
a proper measure of fair compensation. 	The EDC responds that, as a matter of law, Mr. Conti
cannot benefit from an enhancement in market value based merely on newspaper articles that did
not constitute a government announcement of the project; rather, the only government action
here was the filing of the condemnation proceedings, at which point it was proper to determine
the scope of the project. In the alternative, the EDC asserts that, assuming arguendo that the law
permitted the inclusion of such an enhancement in calculating market value, plaintiff failed to
establish its existence at trial through competent evidence, i.e., similarly situated and comparable
sales that reflected an increment in market value because of the Fidelity Project.

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The marked terminological confusion at trial surrounding the scope-of-the-project rule
persuades us to begin our analysis by briefly surveying the general principles involved in this
case, out of which principles we first may isolate, and then ultimately dispose of, the
applicability of the scope-of-the-project rule. 	We then address whether, or to what extent, the
subject parcel may, under law, benefit from the enhancement that Mr. Conti alleges.
Article 1, section 16, of the Rhode Island Constitution provides that “[p]rivate property
shall not be taken for public uses, without just compensation.” 	This Court has referred to this
textually embedded constitutional restriction, which presupposes the state’s power to take private
property in the first instance, as “the safeguard in our State constitution of property rights in
condemnation proceedings.” Joslin Manufacturing Co. v. Clarke, 41 R.I. 350, 357, 103 A. 935,
937 (1918). 	Parallel language in the Fifth Amendment to the United States Constitution also
prohibits state actors, by operation of the Due Process Clause of the Fourteenth Amendment,
Kelo v. City of New London, Connecticut, 125 S. Ct. 2655, 2672 (2005) (O’Connor, J.,
concurring), from taking private property for the “public use” unless accompanied by “just
compensation.” 	Because our focus in the present case concerns only the “just compensation”
component 	of 	the 	aforementioned 	constitutional 	provisions, 	we 	proceed 	to 	examine 	the
requirements of that safeguard alone.7 Cf. Rhode Island Economic Development Corp. v. The
7 Although plaintiff’s brief questions whether the EDC’s taking was a legitimate “public use,” he
does so only in an attempt to distinguish the circumstances in this case from those in United
States v. Miller, 317 U.S. 369 (1943), the seminal scope-of-the-project-rule case that we discuss
in greater depth infra. 	The plaintiff argues that: because the condemnees’ respective properties
in Miller and its progeny were taken for traditionally recognized public projects, i.e., roads,
parks, and reservoirs, and because, in the present case, “Conti lost his private property to a
private business to boost its private profits,” therefore, “Conti’s case does not fit within the
isthmian confines of the [scope-of-the-project] rule.” 	Further, in a footnote to his argument
distinguishing Miller, plaintiff cites an opinion of the Supreme Court of Connecticut in Kelo v.
City of New London, 843 A.2d 500, 528 (Conn. 2004), which held that a taking for economic
development constituted a valid “public use” under the Takings Clause. 	The United States
Supreme Court issued a writ of certiorari to the Supreme Court of Connecticut in Kelo v. City of

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Parking Co., L.P., 892 A.2d 87, 95 (R.I. 2006) (holding that, of the two issues that are pertinent
in eminent domain cases, the issue of public use was appealable, but the issue of just
compensation was not before the Court).
Because “just compensation” is the only textual standard against which the federal and
state 	constitutions 	require 	a 	condemnation 	award 	to 	be 	measured, 	see 	United 	States 	v.
Commodities Trading Corp., 339 U.S. 121, 123 (1950), this Court has adopted a series of
working rules to determine in practice what that ephemeral standard requires. For instance, we
have held that “the measure of the constitutionally required ‘just compensation’ due a property
owner whose land has been taken by eminent domain is the fair market value of the property.”
J.W.A. Realty, Inc. v. City of Cranston, 121 R.I. 374, 380, 399 A.2d 479, 482 (1979). 	With
reference to an authoritative treatise on the subject, we have defined fair market value as “the
amount of money which a purchaser willing but not obliged to buy the property would pay to an
owner willing but not obliged to sell it * * *.” Id. (quoting 4 Nichols, The Law of Eminent
Domain § 12-2[1], at 12-71 to 81 (rev. 3d ed. Sackman 1978)). As a corollary to our definition,
we have determined that fair market value should be calculated on the basis of the most
advantageous and valuable use of the property, sometimes referred to as its highest and best use.
Ocean Road Partners v. State, 612 A.2d 1107, 1110 (R.I. 1992). Further defining the contours of
our working rule, we have adopted the comparable-sales method as the preferred methodology in
which to calculate fair market value, e.g., Capital Properties, Inc. v. State, 636 A.2d 319, 321
New London, Connecticut, 125 S. Ct. 27 (2004); but, by the time plaintiff submitted his brief to
this Court in the matter before us, Justice Stevens had yet to pen what would become the
controversial majority opinion upholding the constitutionality of the taking in Kelo v. City of
New London, Connecticut, 125 S. Ct. 2655 (2005). 	However, the limited context in which
plaintiff raises the issue of “public use” persuades us that, to the extent that plaintiff even
intended to raise the “public use” component of the EDC’s taking as an independent argument on
appeal, the matter is not properly before us. See, e.g., Catucci, 866 A.2d at 515-16; Hay v.
Pawtucket Mutual Insurance Co., 824 A.2d 458, 460n.2 (R.I. 2003).

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(R.I. 1994), and we have indicated that the date of the taking is the proper time to perform that
calculation. E.g., Serzen, 692 A.2d at 673.
This Court, nevertheless, assigns no talismanic significance to fair market value itself
beyond its use as a tool in ascertaining “just compensation.” See, e.g., Warwick Musical Theatre,
Inc. v. State, 525 A.2d 905, 910 (R.I. 1987) (holding that it was not an abuse of discretion for a
trial justice to consider evidence beyond comparable-sales data when the fair market value
calculated from that data failed to achieve “just compensation”). 	In this regard, we have
accentuated in our case law “the fundamental proposition that just compensation is the court’s
ultimate objective.” J.W.A. Realty, Inc., 121 R.I. at 381, 399 A.2d at 483. 	Thus, our
conventional working rules bow, as they must, to the “ultimate objective” that one who
challenges the adequacy of a condemnation award should not receive a measure of compensation
that in any way exceeds, or falls short of, “just compensation.” See, e.g., Corrado v. Providence
Redevelopment Agency, 117 R.I. 647, 657, 370 A.2d 226, 231 (1977); Nasco, Inc. v. Director of
Public Works, 116 R.I. 712, 721, 360 A.2d 871, 876 (1976).
Similar refinement to the concept of fair market value was responsible for the genesis of
the scope-of-the-project rule, a precept much belabored in this case, in United States v. Miller,
317 U.S. 369, 376-77 (1943). 	Miller involved the condemnation of the respondents’ land in
connection with a government project involving the relocation of railroad right-of-ways. Id. at
370-71. 	During trial, the respondents sought to elicit opinion testimony concerning the fair
market value of the land taken as of December 1938. Id. at 372. Government counsel objected to
the form of the question, arguing that the respondents were not entitled to any increment in value
that may have occurred as a result of the government’s earlier commitment to the project, which
involved condemning lands adjacent to the respondents’ property. Id. Sustaining the government

- 15 -
counsel’s objection, the trial court directed that the question be reframed to call for the market
value of the land at the time of the taking, but excluding any increase in value accruing between
August 1937, when Congress authorized the project, and December 1938, when the government
condemned the respondents’ lands. Id.
Upon appeal, the Supreme Court began by framing the central issue before it: whether an
owner should benefit from an increment in value added to the subject parcel by the action of the
government in previously condemning adjacent lands. Miller, 317 U.S. at 375. In addressing the
issue, the Supreme Court noted, “strict adherence to the criterion of market value may involve
inclusion of elements which, though they affect such value, must in fairness be eliminated in a
condemnation case.” Id. 	Such was the case before the Supreme Court in Miller, the holding of
which we quote at length:
“If a distinct tract is condemned * * * other land in the
neighborhood may increase in market value due to the proximity of
the public improvement erected on the land taken. 	Should the
Government, at a later date, determine to take these other lands, it
must 	pay 	their 	market 	value 	as 	enhanced 	by 	this 	factor 	of
proximity. 	If, however, the public project from the beginning
included the taking of certain tracts but only one of them is taken
in the first instance, the owner of the other tracts should not be
allowed an increased value for his lands which are ultimately to be
taken any more than the owner of the tract first condemned is
entitled to be allowed an increased market value because adjacent
lands not immediately taken increased in value due to the projected
improvement.
“The question then is whether the respondents’ lands were
probably 	within 	the 	scope 	of 	the 	project 	from the 	time 	the
Government was committed to it. 	If they were not, but were
merely adjacent lands, the subsequent enlargement of the project to
include them ought not to deprive the respondents of the value
added in the meantime by the proximity of the improvement. 	If,
on the other hand, they were, the Government ought not to pay any
increase in value arising from the known fact that the lands
probably would be condemned. 	The owners ought not to gain by

- 16 -
speculating on probable increase in value due to the Government’s
activities.” Id. at 376-77.
Applying these principles to the facts before it, the Supreme Court determined that the
government was committed to the project in August 1937, when it had obtained final and definite
authorization from Congress. Miller, 317 U.S. at 377. At that time, the respondents’ lands were
only one of several probable routes for the relocation of the railroad right-of-way, causing any
possible increase in value to their lands to be merely speculative. Id. Consequently, the Supreme
Court held that the trial court properly instructed the jury that the respondents could not profit
from the condemnation’s eventuality, in 1938, under compulsion of “just compensation.” See id.
at 377-79. 	Perceiving no error in the trial court’s instructions, the Supreme Court affirmed the
compensation award that excluded any increment in value derived from the respondents’
beneficial proximity to lands previously condemned. See id. at 372-73, 382.
The circumstances surrounding the condemnation in the present case, however, simply do
not equate with those inherent in Miller and its progeny. 	It appears to us that scope-of-the-
project-rule cases often involve drawn out governmental projects, piecemeal takings separated by
noticeable gaps in time, and some evidence that, in the interim, the market values of neighboring
properties increased because of the projects. See United States v. 320.0 Acres of Land More or
Less in Monroe, Florida, 605 F.2d 762, 781-93 (5th Cir. 1979) (providing a thorough history of
the federal jurisprudence addressing the scope-of-the-project rule); see also, e.g., United States v.
Reynolds, 397 U.S. 14, 14n.1, 17-18 (1970) (reaffirming the holding annunciated in Miller in
similar circumstances); Miller, 317 U.S. at 370-72; Fuller, 120 R.I. at 833-39, 391 A.2d at
103-06 (adopting and applying the holdings of Miller and Reynolds in a condemnation dispute
involving a lengthy government project in which adjacent lands were condemned at different
times and evidence that the government project enhanced the value of the surrounding property).

- 17 -
The disposition of the present case calls for discourse addressing a related but more
fundamental rule of law. 	We look to the observation of an authoritative treatise for guidance:
“[t]he general rule is that any enhancement in value that is brought about in anticipation of, and
by reason of, a proposed improvement, is to be excluded in determining the market value of the
land.” 4 Nichols on Eminent Domain § 12B.17[1] at 12B-202 (3d ed. Julius L. Sackman 2005)
(citing Shoemaker v. United States, 147 U.S. 282 (1893); Kerr v. South Park Commissioners,
117 U.S. 379 (1886)). 	We adopted this general rule in Rhode Island Hospital Trust Co. v.
Providence County Court House Commission, 52 R.I. 186, 189, 159 A. 642, 643 (1932), a case
that involved a taking by eminent domain of certain land needed for the construction of the
building in which this Court now sits. Id. at 187, 159 A. at 642. 	There, the petitioners argued
that the trial justice should not have excluded testimony indicating that the market value of their
properties increased as soon as the General Assembly authorized the condemnation of those
properties. Id. at 189, 159 A. at 643. 	This Court affirmed the Superior Court’s ruling, holding
that the petitioners could not benefit from the fact that “the land was known to be within the area
designated for condemnation and was certain to be taken.” Id.; see also J.W.A. Realty, Inc., 121
R.I. at 382n.5, 399 A.2d at 483n.5 (noting, with citation to Rhode Island Hospital Trust Co., that
the general rule, quoted supra, “applies in Rhode Island”); Fuller, 120 R.I at 840, 391 A.2d at
107 (declining to consider the question, separate from the primary scope-of-the-project-rule
issue, of whether the value of the petitioner’s property was enhanced by the condemnation of
adjacent lands under the auspices of the project because “the owner is not entitled to benefit from
the known fact that her property probably would be condemned”).
The rule articulated in Rhode Island Hospital Trust Co., however, does not detract from
the long-standing principle that fair market value, calculated at the time of the taking, is

- 18 -
generally the proper measure of “just compensation.” 	We deduce this principle from the
teachings of In re the Condemnation of Certain Land for a New State House, 19 R.I. 382, 33 A.
523 (1896) (New State House). 	There, a board of statehouse commissioners (the board) who
were responsible for selecting and acquiring land for the construction of a new statehouse,
condemned certain properties adjacent to land that the board already purchased for the project.
Id. at 382-83, 33 A. at 523. 	Separately-appointed commissioners awarded the condemnees
damages that reflected a heightened market value created by their proximity to the development,
and the board then appealed to this Court. Id. at 383-84, 33 A. at 523. The board contended that
“the rule of appraisal is that the owner is not entitled to the increased value of the land
occasioned by the proposed improvement.” Id. at 385, 33 A. at 524. 	We disagreed with the
board’s argument as too broadly stated, id., and held that the public disclosure that the board had
purchased land for the new statehouse enhanced the market value of adjacent properties before
the takings commenced:
“The fact of the location of the new state house had thus become
publicly known, by the purchase by the State of this tract, prior to
the filing of the [condemnation] certificate by the [board], and the
consequent 	enhancement 	in 	value 	due 	to 	the 	proposed
improvement had already accrued to the adjacent land before the
certificate was filed.” Id. at 386, 33 A. at 524.
Consequently, we refused to order a new trial at the request of the board and let the appraisal of
the commissioners stand. Id. at 386-87, 33 A. at 524.
In the case under review, the terminology of the trial justice’s findings supports the
conclusion that the trial justice applied the scope-of-the-project rule to the facts in the present
case. 	The trial justice’s preliminary findings provided that “the acquisition of the subject
property was at all times within the Scope of the Fidelity Project as outlined and announced by
the defendant EDC.” 	Nevertheless, with reference to the EDC’s condemnation petition and

- 19 -
attached resolutions, the trial justice used May 28, 1996, the date of the actual condemnation, as
the operative date for determining just compensation. Thus, the date upon which he determined
that the EDC became committed to the project, thereby delineating the “scope of the project,”
and the date of the taking itself were one and the same. Citing this Court’s adoption, in Fuller, of
the scope-of-the-project rule, the trial justice then concluded that Mr. Andolfo’s primary opinion
concerning enhanced market value ($600,000) and the subject parcel’s highest and best use
(medical office facility) was not relevant, probative, or material.
The appropriate inquiry, however, was not whether Mr. Conti’s property fell within the
scope of the project as of the date of condemnation. 	The question in this case, rather, should
have been whether the subject property increased in value from the time that the real estate
market became aware of Fidelity’s relocation to Smithfield until the time said parcel “was known
to be within the area designated for condemnation and was certain to be taken.” Rhode Island
Hospital Trust Co., 52 R.I. at 189, 159 A. at 643; see also 4 Nichols on Eminent Domain
§ 12B.17[2] at 12B-215. 	If so, any such increase in value is properly compensable pursuant to
New State House, 19 R.I. at 386, 33 A. at 524. However, any enhanced value occurring after the
date that the property was “known” to be slated for condemnation is not a proper component of
just compensation. See Rhode Island Hospital Trust Co., 52 R.I. at 189, 159 A. at 643.
Although the Superior Court decision may not have stated accurately the applicable
principles of value enhancement, we are not convinced that the decision should be reversed. Nor
do we need to question the trial justice’s determination that May 28, 1996 was the appropriate
triggering date for his fair market value analysis.8 Assuming without deciding that the market
8 Because the trial justice determined fair market value as of the date of the taking itself, we need
not address, for purposes of deciding this appeal, the question of when it was “known” that the
property was “within the area designated for condemnation.” Rhode Island Hospital Trust Co. v.
Providence County Court House Commission, 52 R.I. 186, 189, 159 A. 642, 643 (1932).

- 20 -
adequately was aware of the details of the Fidelity Project as early as December 1995, plaintiff
nevertheless failed to satisfy his burden of proving, through competent evidence, the existence of
any enhancement in the value of his property that could be attributed to such awareness. 	The
plaintiff’s failure in this regard is reflected in the trial justice’s subsequent findings. As a result
of his preliminary findings concerning value enhancement, the trial justice looked to Mr.
Andolfo’s alternate opinion when he testified that, absent an enhancement in value caused by the
Fidelity Project, the subject parcel’s highest and best use would be as a general professional
office building, and would, in that instance, carry a market value of $427,000. The trial justice
then proceeded to evaluate the witnesses’ respective comparables and competing conclusions. In
doing so, the trial justice made several findings that independently supported the court’s
determination ultimately to embrace Mr. Vincent’s opinion and to reject Mr. Andolfo’s.
Because we base our holding in this regard on the independent and subsequent findings
of the trial justice concerning the assessment of the witnesses’ comparables, we proceed to
analyze those findings, and, as a matter of course, plaintiff’s assignment of error to them.
C. Comparable-Sales Data
The plaintiff advances three particular arguments in asserting, overall, that the trial justice
committed reversible error in accepting Mr. Vincent’s comparables. First, while conceding that
the comparable-sales method is generally the best gauge of fair market value, plaintiff argues
that sales data must, as a preliminary matter, be obtainable in the market. 	At the time of the
taking, he argues, properties surrounding the subject parcel were either: (1) zoned residential and
thus not similarly situated; or (2) owned by only a handful of owners who wished to retain their
land for later development. 	This, he asserts, made it difficult for him to find local data of
comparable sales and therefore plaintiff was forced to search distinct and far-flung municipalities

- 21 -
such as Providence and Portsmouth. 	Second, and related to that, plaintiff argues that the trial
justice placed “almost dispositive” weight on the location of his expert’s comparables instead of
emphasizing the similar characteristics shared among them and the subject parcel. Third, given
the paucity of ascertainable sales data in Smithfield, plaintiff argues that the subject parcel
possessed 	a 	certain 	uniqueness 	that 	necessitated 	alternate 	appraisal 	methods 	beyond 	the
comparable-sales method. 	Finally, plaintiff simply identifies distinguishable characteristics
between Mr. Vincent’s comparables and the subject parcel, concluding that the trial justice erred
in accepting Mr. Vincent’s analysis.
As we explained previously, this Court has held that the comparable-sales method is the
preferred way in which to ascertain fair market value. E.g., Capital Properties, 636 A.2d at 321.
“The comparable sales methodology assumes that the best estimates of the market value of a
property can be determined by analyzing recent sales in the open market during a similar
timeframe for substantially similar or comparable properties, and making adjustments for minor
differences between the properties or the circumstances of the sales.” Sun-Lite Partnership v.
Town of West Warwick, 838 A.2d 45, 47 (R.I. 2003). 	“Significant factors that affect
comparability include location and character of the property, proximity in time of the comparable
sale, and the use to which the property is put.” Serzen, 692 A.2d at 674 (quoting Warwick
Musical Theatre, Inc., 525 A.2d at 910).
Generally, existing sales data concerning similarly situated and comparable properties
serve to exclude the use of other methods for deducing fair market value. Corrado, 117 R.I. at
654, 370 A.2d at 230. We have allowed for the departure from this preferred method, however,
at the discretion of the trial justice, when the fair market value established through comparable
sales did not adequately reflect “just compensation” because the condemned property was

- 22 -
“unique or suited for a special purpose.” J.W.A. Realty, Inc., 121 R.I. at 381, 384, 399 A.2d at
483, 	484 	(apartment 	project 	with 	“no 	comparable 	sales 	that 	reflected 	[its] 	special
characteristics”); see also, e.g., Warwick Musical Theatre, Inc., 525 A.2d at 910 (structure used
as a musical theater); Trustee of Grace and Hope Mission of Baltimore City, Inc. v. Providence
Redevelopment Agency, 100 R.I. 537, 538, 543, 217 A.2d 476, 477, 479 (1966) (structure used
as a religious and benevolent mission); Assembly of God Church of Pawtucket, R.I. v. Vallone,
89 R.I. 1, 10-11, 150 A.2d 11, 15-16 (1959) (building used as a parsonage); Hall v. City of
Providence, 45 R.I. 167, 168-69, 121 A. 66, 66-67 (1923) (highly improved country estate that
was one of the first in the area). 	Either way, “[t]he availability of such comparable sale is a
question addressed to the discretion of the trial justice whose determination will be reversed only
if ‘palpably or grossly wrong.’” Warwick Musical Theatre, Inc., 525 A.2d at 910 (quoting
Thomas B. Gray, Inc. v. Providence Redevelopment Agency, 114 R.I. 370, 374, 333 A.2d 143,
145 (1975)).
Mr. 	Andolfo 	began 	his 	market-value 	calculation 	on 	the 	premise 	that 	the 	most
advantageous and valuable use to which the subject parcel could be put was as a medical office
facility. Based on the subject parcel’s presumed highest and best use, Mr. Andolfo examined six
real 	estate 	transactions 	including 	properties 	in 	Providence, 	Portsmouth, 	East 	Providence,
Johnston, and Warwick. 	The sales prices of the six comparables ranged from $185,000 to
$800,000, and from $4.31 to $13.10 per square foot. To derive a suitable amount per square foot
between these two extremes, which amount Mr. Andolfo then could apply to the subject parcel,
Mr. Andolfo considered a series of observations or factors, known as adjustments. 	Although
factoring in the time of sale is a typical means of adjusting sales data, Mr. Andolfo testified that
“the market was stable from ’92 to ’96 and no time adjustments whether negative or positive

- 23 -
were reflected.” The witness continued, however, that he considered as a positive adjustment the
general location of the subject parcel, including its adjacency to the corporate park and “the fact
that Fidelity investments was going to be there.” 	Further, in his appraisal, Mr. Andolfo
identified the following factors that he employed in adjusting the sales data:
“[T]he State of Rhode Island was proposing to construct a $5
million golf course adjacent to Bryant College. 	Similarly, there
were a number of hotel proposals along various sites on Douglas
Pike from Route 116 north to the subject property (one of which
was developed). 	A Wal-Mart had been proposed for a parcel
location along Route 7 opposite the 295 Office and Industrial Park
(now the site of the New Life Worship Center), and the Town of
Smithfield had also suggested that they [sic] would be a good
choice as a home for the New England Patriots when considering
that the Patriot[s’] summer training camp is located at Bryant
College.”
Based on these adjustments, Mr. Andolfo narrowed the range from $6 to $8.07 per square foot.
Mr. Andolfo then reconciled the mean indicated value ($6.82 per square foot) with the median
indicated value ($6.48 per square foot) to derive a value of $6.75 per square foot. 	Considering
the subject parcel’s 90,917 usable square feet, Mr. Andolfo calculated that the subject parcel
carried a market value of $614,000, which, less the demolition costs associated with razing the
extant residential structures, amounted to a net present value of $600,000 on the date of the
taking.
Testifying for the EDC, Mr. Vincent presented three comparables based on his opinion
that the subject parcel’s highest and best use was as vacant, industrially zoned land with the
opportunity for future development.9 Although Mr. Vincent slightly and upwardly adjusted his
9 Although Mr. Vincent appears to have relied on only three comparables during his testimony at
trial, the record shows the existence of five. 	In conducting his primary appraisal, Mr. Ryan
identified three comparables referred to during the proceedings as the “Ryan report.” 	At trial,
Mr. Vincent testified that he selected only one as the “reliance” comparison, or the comparable
that is most similar to the subject parcel. 	The other two comparables to which Mr. Vincent

- 24 -
comparables, he disagreed with the sheer breadth of adjustments Mr. Andolfo employed with
respect to location. As Mr. Vincent indicated, all his comparable sales took place in Smithfield,
two of which sales occurred within a mile of the subject parcel. Mr. Vincent said that he did not
make adjustments based on future market trends, such as the prospects of Fidelity’s relocation,
the New England Patriots’ relocation, or the construction of a $5 million golf course, because
such trends were “speculative” and “may not eventuate.” As Mr. Vincent explained:
“[A]t a certain level of market, what I have called dormancy, a
certain level of investigatory rigor is not called for. 	Adjustable
components such as have been asked about during my cross-
examination tends to collapse against each other * * *. 	[I]f you
can find comparables with points of comparability, and I believe
we have, those are indicative. 	They are market signals in a very
dormant market of what’s possible in the market area.”
Based on his minor adjustments, Mr. Vincent estimated a value of $1 per square foot, which,
when multiplied by the subject parcel’s 158,285 square feet of both usable and unusable land,
resulted in a rounded market value of $158,000. 10
Although each party presented the expert testimony of a real estate appraiser who
possessed the appropriate qualifications necessary to render an opinion on the subject parcel’s
fair market value, the trial justice accepted Mr. Vincent’s opinion and rejected Mr. Andolfo’s.
“A trial justice retains the authority to determine the credibility of each expert’s evidence, and to
decide whether to accept or reject a proffered valuation.” Sun-Lite Partnership, 838 A.2d at 48.
Both the trial transcript and the written decision reflect the detailed consideration that the trial
justice afforded to each expert’s testimony concerning the comparables employed in preparing
the respective appraisals. 	The trial justice’s thorough and well-articulated findings, along with
testified were furnished to Mr. Vincent shortly after he conducted his review appraisal, from the
so-called “Bates report.”
10 Mr. Vincent indicated that he did not discount the subject parcel’s wetlands, as Mr. Andolfo
did, when calculating market value.

- 25 -
our deferential review in such cases, persuade us that plaintiff’s allegations of error must fail.
Although sales data were not as abundant in Smithfield as in other markets, the trial justice
determined that sufficient data of comparable sales existed from which the witnesses could
calculate the market value of the subject parcel. 	Moreover, the subject parcel was not, by any
stretch of the imagination, “unique or suited for a special purpose,” see J.W.A. Realty, Inc., 121
R.I. at 381, 399 A.2d at 483, but was vacant, industrially zoned land. 	The trial justice
appropriately evaluated the witnesses’ respective comparable sales, giving due consideration to
their particular location, character, proximity in time, and uses compared with the subject parcel.
In the final analysis, plaintiff suffered not from an error on the part of the trial justice, but from a
failure to satisfy his burden at trial to present persuasive evidence supporting his opinion of fair
market value as of May 28, 1996, the date of condemnation. The trial justice simply found Mr.
Vincent’s comparables to be more probative than Mr. Andolfo’s, and we cannot say, based on
our review of the record, that the trial justice misconceived or overlooked material evidence or
was otherwise clearly wrong in doing so.
D. Highest and Best Use
The plaintiff next argues that the trial justice committed an error of law in determining
that the highest and best use of the subject parcel was industrial, thereby rejecting Mr. Andolfo’s
opinion that the subject parcel would be more advantageously employed as a professional office
building. 	Alternatively, plaintiff argues that the trial justice misconceived or overlooked the
“boatload” of evidence supporting Mr. Andolfo’s opinion about highest and best use. 	While
acknowledging that the subject parcel was zoned industrial at the time of the taking, plaintiff
explains that professional office facilities were allowed by special exception. 	The plaintiff
contends that Smithfield’s zoning board, in all likelihood, would have approved a medical office

- 26 -
building in the area because of the board’s philosophy at the time to foster a corporate
environment in the area surrounding the subject parcel.
This Court has held that “an appraiser in condemnation proceedings is allowed to
consider all uses to which condemned land is or might reasonably be put. 	Compensation
[therefore] should be based on the most advantageous and valuable use.” Sweet v. Murphy, 473
A.2d 758, 761 (R.I. 1984) (citing Olson v. United States, 292 U.S. 246, 255 (1934)).
Accordingly, “[t]he sum required to be paid the owner of land does not depend on the uses to
which he has put it but is to be ascertained by just consideration of the uses for which it is
suitable.” Id. 	Further, this Court has “reaffirmed the principle that condemned land must be
assessed according to its fair-market value in light of existing zoning restrictions and not on the
basis of an unlawful use.” Ocean Road Partners v. State, 670 A.2d 246, 250 (R.I. 1996). As we
have explained, however, the trial justice may consider a use for which present zoning
restrictions do not readily allow if the party can establish a reasonable probability that the use
will be made allowable in the near future. Id.
In our analysis, we find it helpful to explain the nature of the evidence that the witnesses
relied on in constructing their opinions about highest and best use. Explication of this evidence
also brings us to plaintiff’s final assignment of error, viz., that the trial justice misconceived or
overlooked evidence of a corporate-development trend in Smithfield. 	We proceed to address,
therefore, the trial justice’s reliance on this so-called trend evidence, or lack thereof, both as a
separate assignment of error and as it relates to the disposition of plaintiff’s allegations
concerning the trial justice’s highest and best use finding.
Both Mr. Andolfo and Mr. Vincent agreed that the subject parcel bore an industrial
zoning designation at the time of the taking, although its current use was as a residential rental

- 27 -
property, which Mr. Andolfo described as a legal, nonconforming use. 	Both witnesses further
agreed that the most advantageous use of the subject parcel was not residential, but they offered
divergent opinions about what the highest and best use might be. 	Mr. Andolfo testified that
public hearings conducted in early 1996 to consider a change in zone along Route 7 from
industrial to planned corporate indicated that the town’s “mind set” was moving toward
corporate development. 	Because of this development trend, Mr. Andolfo concluded that the
Smithfield zoning board probably would have granted a special exception for the construction of
a professional office building on the subject parcel. 	Moreover, in his appraisal, Mr. Andolfo
pointed to tacit “supply and demand factors” for medical office facilities within Smithfield,
northern Rhode Island, and the Providence metropolitan area, purportedly supporting the more
specific assertion that the highest and best use for the subject parcel in Smithfield was a medical
office facility.
Mr. Vincent, on the other hand, testified that the subject parcel’s highest and best use was
“vacant and available for development as an industrial site.” 	Further, Mr. Vincent recognized
that 	“there 	were 	alternative 	uses, 	besides 	industrial, 	that 	were 	allowed 	under 	certain
circumstances, including [professional] office [space].” 	As indicated in his appraisal, however,
Mr. Vincent based his opinion not on evidence of any positive trend, but on the “wide attestation
of a ‘flat’ market for the period in question” along the Route 7 corridor in Smithfield, garnered
from the sheer lack of comparable-sales data. 	Mr. Vincent testified that prudent appraisers
consider future trends in valuing property only if those trends are supported by “[h]ard data in
the market.” 	Caution is warranted, Mr. Vincent explained, “[b]ecause future trends may not
eventuate[; they are] speculative. * * * So, if an appraiser hangs their hat by that, they are in
dangerous territory.”

- 28 -
In his decision, the trial justice adopted Mr. Vincent’s opinion concerning highest and
best use, which included the possibility that a prospective purchaser could have obtained a
special exception to construct a professional office building, despite the subject parcel’s
designation, at the time of the taking, as industrial property. 	The applicable finding in the trial
justice’s decision states that “[t]he Court * * * adopts the theory of market condition and lack of
sales activity that at the time of the taking the subject property’s highest and best use was as it
was zoned, industrial, with other uses allowable upon special application * * *.” In light of the
plain language of this finding, we simply are not convinced that the trial justice “forever
ossified” the subject property as it was zoned, as plaintiff argues, thereby dismissing the more
advantageous and valuable use of the property.
Nor do we perceive that the trial justice erred in rejecting Mr. Andolfo’s trend evidence
and accepting Mr. Vincent’s observation that the market was “flat.” 	The trial justice chose,
squarely within the margins of his discretion, to rest his ruling on evidence of proximate sales
that were comparable to the subject parcel. 	The plaintiff had the opportunity to present
comparables that reflected the development trends in Smithfield, to which trends Mr. Andolfo
testified, but he failed to examine any sale actually within the boundaries of Smithfield that
might have spoken to the existence of those trends. Given the absence of competent evidence in
this regard, we are satisfied that the trial justice did not abuse his discretion by accepting Mr.
Vincent’s opinion.
Conclusion
For the reasons set forth herein, we affirm the judgment of the Superior Court, to which
we remand the record in this case.

29
COVER SHEET
TITLE OF CASE: 	Richard J. Conti v. Rhode Island Economic Development
Corporation et al.
DOCKET SHEET NO.: 2004-109-A
COURT:Supreme
DATE OPINION FILED: 	July 11, 2006
Appeal from
SOURCE OF APPEAL:SuperiorCounty: Providence
JUDGE FROM OTHER COURT: 	Judge Francis J. Darigan
JUSTICES: 	Williams, CJ., Goldberg, Flaherty, Suttell, and Robinson, JJ.
WRITTEN BY: 	Justice Paul A. Suttell, for the Court
ATTORNEYS:
For Plaintiff: 	Lauren E. Jones, Esq.
ATTORNEYS:
For Defendant: 	Randolph L. Smith, Esq.