En Banc. Smith, J. Utter, Dolliver, Durham, Guy, Johnson, and Madsen, JJ., concur. Brachtenbach, J., concurs in the result only; Andersen, C.j., did not participate in the disposition of this case.
Petitioners Arthur E. and Patricia L. Pierce seek review of a decision of the Court of Appeals, Division One, dismissing their inverse condemnation claim and affirming a judgment of the King County Superior Court which dismissed their complaint with prejudice and granted
summary judgment in favor of respondent Northeast Lake Washington Sewer and Water District (Respondent). We affirm the Court of Appeals.
The Northeast Lake Washington Sewer and Water District (District) is a municipal corporation providing water and sewer service to approximately 50,000 people.*fn1 In 1984, the District acquired 5.4 acres of residentially owned property in Lake Forest Park, King County, adjacent to property owned by Arthur E. and Patricia L. Pierce (Petitioners).*fn2 The District intended to construct a 4.3-million gallon water storage tank on the property.*fn3 It looked at several other sites, but chose this one because the sloping hillside would enable the District to obscure sight of most of the tank, thus reducing "site impact" on neighboring residences farther up the hill,*fn4 and because the property was zoned RS 9600.*fn5
On November 1, 1984, the District submitted an application to the King County Zoning Adjuster for an administrative
conditional use permit*fn6 to construct its 4.3-million-gallon water storage tank on the property.*fn7 On April 22, 1985, the zoning adjuster denied the administrative conditional use permit for the proposed tank,*fn8 concluding that the proposed tank was not compatible with the surrounding residential uses, that there would be a significant impact on the views of surrounding residents, and that there would be substantial land use conflicts.*fn9
On July 16, 1985, the District appealed the decision of the zoning adjuster to the King County zoning and subdivision examiner. The District submitted a substantially revised proposal for the water tank at the site.*fn10 After reviewing the record, Robert E. Beaty, deputy zoning and subdivision examiner, granted the administrative conditional use permit with appropriate conditions imposed on
the District to mitigate impact of the project on the surrounding area.*fn11
In July 1986, the District contracted with Skaar Construction, Inc., to construct the water tank on the site. Construction was begun in July 1986 and completed in December 1987, in compliance with all terms and conditions of the conditional use permit.*fn12
As authorized by the zoning and subdivision examiner, the 4.3-million-gallon water storage tank was 160 feet in diameter and 30 feet high.*fn13 Although it was constructed entirely on the property of the District, it was no more than 50 feet away from Petitioners' house.*fn14 The top of the tank was planted with grass, which was left in its natural condition, and the property surrounding it was maintained with shrubbery, trees and other forms of vegetation and grass.*fn15
In March 1988, Petitioners retained David E. Hunnicutt, an appraiser with Hugh A. Thompson & Associates, Inc., to determine the effect of construction of the water tank upon their property value.*fn16 Mr. Hunnicutt determined that construction of the tank resulted in a $30,000 loss in value to Petitioners' property.*fn17
On September 25, 1989, Petitioners filed a complaint for nuisance, trespass, negligence and inverse condemnation in the King County Superior Court against Respondent District and its general contractor, Skaar Construction, Inc., based upon construction and maintenance of the water storage
tank adjacent to their property.*fn18 Petitioners claim the tank is constantly visible from most of the "view" rooms of their home and particularly obstructs their view of Mount Rainier and the Cascades.*fn19 Petitioners settled all claims against Respondent with the exception of the inverse condemnation claim.*fn20 The District moved for summary judgment.
On November 1, 1991, the King County Superior Court, the Honorable George A. Finkle, granted summary judgment in favor of the District and dismissed the complaint with prejudice because Petitioners failed to demonstrate compensable damage to a property right for which they would be entitled to compensation.*fn21 On November 27, 1991, Petitioners filed a notice of appeal to the Court of Appeals, Division One.*fn22 On February 16, 1993, the Court of Appeals, Judge ...