WPI 151.15 Zoning

Use this instruction when evidence has been introduced regarding the probability of a zoning change and its effect on the value of the property. Use the bracketed material when there is evidence that the probability of a zoning change is enhanced or diminished by pendency of the project for which the property is being acquired.

The cases cited in the Comment below involve the acquisition of the entire property. Appropriate modifications should be made if this instruction is used in a partial takings case.

This instruction (without the bracketed phrase) was approved in City of Bellevue v. Kravik, 69 Wn.App. 735, 850 P.2d 559 (1993). The Court of Appeals also held that evidence that a governmental body has intentionally manipulated zoning to depress the value of property being condemned may be presented to the jury on the issue of the reasonable probability of a rezone.

In State v. Motor Freight Terminals, Inc., 57 Wn.2d 442, 357 P.2d 861 (1960), the court held there was a reasonable probability that the subject property would be rezoned in view of its character and that of nearby properties.

In deciding whether it is reasonably probable that a property will be rezoned in the future, the fact finder is to consider what an objectively reasonable governing body would do. See State v. Motor Freight Terminals, Inc., 57 Wn.2d at 445 (referring to a “responsible” governing body using “reason and common sense”); City of Bellevue v. Kravik, 69 Wn.App. at 738, 741 (referring to a hypothetical “reasonable legislative body” and holding that the property owner need not actually have submitted an application to a particular legislative body).

The court in State v. Kruger, 77 Wn.2d 105, 459 P.2d 648 (1969), held that it was error to give WPI 151.15 without the bracketed material when there was proof that the probability of the zoning change was created by the project for which the property was being acquired. This rule was also applied in State v. Sherrill, 13 Wn.App. 250, 534 P.2d 598 (1975), when the rezoning of the subject property had been accomplished prior to the trial to determine compensation. These latter cases illustrate the principle that a condemnor is not required to pay for the enhancement in value that results from the project for which the property is being acquired. See Pierce County v. Duffy, 104 Wash. 426, 176 P. 670 (1918); Annotation, Increment to Value, From Project for Which Land is Condemned, As a Factor in Fixing Compensation, 147 A.L.R. 66 (1943).

Conversely, if the project generally diminishes land values, such diminution should be disregarded. Lange v. State, 86 Wn.2d 585, 591, 547 P.2d 282 (1976) (“Any decrease in property value attributable to the project for which the eminent domain proceeding is instituted is to be disregarded in computing just compensation.”). Special instructions may have to be drafted to cover such situations.