State v. Kruger, 40685
| Decision Date | 09 October 1969 |
| Docket Number | No. 40685,40685 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Albert KRUGER and Erna I. Kruger, his wife, et al., Petitioners. |
Bell, Ingram, Smith, Johnson & Level, Edward E. Level, Everett, for petitioners.
Slade Gorton, Atty. Gen., Theodore O. Torve, Asst. Atty. Gen., Olympia, for respondent.
This is a review by certiorari of an order of the Superior Court of Snohomish County granting a new trial in a condemnation proceeding after a jury verdict of $60,300 for the property owners, Albert Kruger and Erna Kruger, his wife.
In the condemnation proceedings, the State of Washington was the petitioner and the property owners were the respondents. On the application for a writ of certiorari, the property owners were the petitioners and the state was the respondent. In this opinion, to avoid confusion, we shall refer to the parties as the state and the Krugers.
The Krugers own a wooded tract with a frontage of 160 feet on the west side of Broadway in Everett. The depth of the tract is 350 feet (56,000 square feet). They built their home 1 on the northeast portion of the tract. The entire tract was zoned R--1 (single residence). Their expert real-estate appraiser testified that the highest and best use of the tract would be to use a portion 80 150 feet (12,000 square feet) for its present use as a single family residence and to use the rest of the tract (44,000 square feet) 'for some sort of multiple dwelling,' which would require a rezoning to R--3. He testified that his valuation of $60,300 2 was based on its present valuation, taking into account the probability of such a rezoning.
To support his testimony as to the probability of a rezoning, he pointed out the proximity of the Kruger property to an existing interchange involving Interstate Highway 5 and State Highway 2--J, the Bothell-Everett Highway, which has become a major traffic flow point for traffic to and from the new Boeing plant at Paine Field. It is because of this increased traffic flow that the state is constructing a major access road (called the Casino Road Project) between Interstate 5 and Paine Field. It is for this project that the Kruger property is being condemned.
The witness also pointed out that the Kruger property is in something of a pocket. While the area immediately north of it is zoned R--1, it is hemmed in on the south and west by property belonging to a cemetery association, which, although it has not yet been developed for cemetery purposes, is adjacent to a large cemetery. On the east is Broadway, with the property on the east side of that street being zoned to permit use for small businesses--with the freeway still further to the east.
Countering this, it was established that, even though plans for the Casino Road Project were known when Everett adopted its Comprehensive Master Plan in 1967, the Kruger property was zoned R--1, and that the planning commission had established a policy that it would not consider any changes in zoning until after the Casino Road Project had been completed so that the commission could adequately determine the effect of the project.
The trial court, in view of the above testimony and evidence, instructed the jury, Inter alia, that:
You are to value the property in view of the uses permitted under the present zoning. However, if you find there is a reasonable probability that the zoning will be changed in the near future, you may consider the effect of such probability on the fair market value of the property.
The state did not except to the instruction, but did except to the failure of the trial court to include the following language in the instruction: 'You may not, however, consider any effect on said zoning created by the project for which the property is being acquired.'
The jury verdict in favor of the Krugers for $60,300 was in the exact amount of their expert's appraisal. His appraisal, however, was predicated on the probability of a...
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