STATE HIGHWAY COMMISSION
v.
HAEHNLE
Docket No. 19647.
Michigan Court of Appeals.
Decided May 28, 1976.Frank J. Kelley, Attorney General, Robert A. *337 Derengoski, Solicitor General, Louis J. Caruso and George J. Platsis, Assistants Attorney General, for plaintiff.
Kenneth B. Johnson, for defendants.
Before: D.F. WALSH, P.J., and J.H. GILLIS and R.M. MAHER, JJ.
PER CURIAM.
The Haehnle's appeal from a jury verdict awarding them $45,000 as just compensation for land the State Highway Commission took from them in order to expand I-94. Many issues are raised for our consideration, and one of them necessitates reversal.
Error is alleged to have occurred in the judge's instructions to the jury. An analysis of these instructions reveals that the jury was told that in order to consider the effects of rezoning on the value of defendants' property, it was necessary that there be a "real probability" that defendants' property could have been rezoned at the time of taking. The jury was also instructed that in order to consider the effects of rezoning, defendants had to prove that the rezoning would have increased the value of the land in the eyes of a potential purchaser, and that the potential purchaser would have enjoyed a profit from the rezoned land, had he bought it. We believe these instructions to be erroneous.
In State Highway Commissioner v Eilender, 362 Mich. 697, 699; 108 NW2d 755 (1961), our Supreme Court set the following standard for a jury in considering the effect of possible rezoning:
"But, on the other hand, it has been held, `if there is a reasonable possibility that the zoning classification *338 will be changed, this possibility should be considered in arriving at the proper value.'" (Emphasis supplied.)
While the trial judge was correct in instructing that the possibility of rezoning must be something more than remote, see State Highway Commission v Minckler, 62 Mich. App. 273; 233 NW2d 527 (1975), we think that his "real probability" instruction set defendants' burden of proof too high under the existing standard announced in Eilender, supra. Furthermore, the question of whether a potential buyer of the rezoned property would make a profit from the land once he bought it is irrelevant. See, In re Petition of the City of Detroit for a Park Site, 227 Mich. 132, 138-139; 198 N.W. 839 (1924).
Our decision on this issue renders other allegations of error moot. We do note, however, that defendants will now have another chance to show that the state failed to make a "good faith" offer as required by MCLA 213.366; MSA 8.261(6).
Reversed. Costs to appellants.