Appeal from the Circuit Court of Lake County; the Hon. GLENN
K. SEIDENFELD, Judge, presiding. Judgment affirmed.
This appeal is taken from a judgment rendered on a jury verdict in the Circuit Court of Lake County for property condemned by the Park District of Highland Park pursuant to its powers of eminent domain.
The original Petition to Condemn was filed on August 17, 1962 and included eight separate, but adjoining, parcels of land located on the East side of the Skokie Highway in the City of Highland Park. We are here concerned with only two of the parcels, B and C; the other parcels having been acquired by the Park District earlier through negotiated settlements with the owners or as a result of prior litigation.
Both parcels are unimproved, vacant, unsubdivided land zoned by the City for use as single family residences with a minimum area requirement of 40,000 square feet. Skokie Highway is a main traffic artery of four lanes, separated by a median strip. The West side of Skokie Highway is zoned "Industrial" by the City from the highway to a railroad several hundred feet further west. This strip extends about four miles from the North boundary of the City to the South. Approximately 40% to 50% of it remains vacant with the remainder developed with a variety of small business uses.
North of the property in the condemnation suit, on the East side of Skokie Highway, is the Country Club Estates subdivision, a residential development of substantial proportions. Immediately to the South and East the property is vacant and unsubdivided.
Parcel B consists of 3.41 acres and has a North line of 759.6 feet. The South line of Parcel B, which is also the North line of Parcel C, is 662.4 feet while the South line of C is 565.1 feet. Parcel C is 2.97 acres. Approximately 285 feet from the East line of the properties the elevation drops abruptly so that the rear portions are some 17 feet lower than the area fronting on Skokie Highway.
As is usual in condemnation cases, the testimony of the opinion witnesses who testified as to the market value of the property differed radically. Two witnesses testified for the Park District that the highest and best use of the property was residential and that, in their opinion, Parcel B had a fair cash market value as of August 17, 1962, of $7,000 and Parcel C had a value of $6,500.
Experts testifying for the property owners disagreed with both the fair market value expressed by the Park District's witnesses and the highest and best use of the land. The property, they insisted, was not realistically zoned in that its highest and best use was "Office and Research," or a planned business center or some other commercial use. They pointed out that the proximity to Skokie Highway, the commercial development directly across from the subject property, the distance from schools, churches and a shopping area all contributed to its undesirability for residential use. They were of the opinion that the fair cash market value of Parcel B for its highest and best use would be between $41,000 and $42,500 and for Parcel C, $35,000 to $37,500. Even zoned residential, they stated that the property was worth between $27,500 and $29,900 and between $23,250 and $25,200 for "B" and "C," respectively.
At the conclusion of the trial, the jury, who had visited and inspected the premises, returned verdicts awarding the owners of Parcel B the amount of $10,000 and $9,300 to the owners of Parcel C.
A post-trial motion by the owners to set aside the verdict of the jury and grant a new trial was overruled and judgment was entered on the verdict. This appeal results.
While the owners urge numerous areas of alleged error as basis for a reversal and a new trial, their principal objection seems to be that the Court denied them the right to present their "theory" of value to the jury. As we have seen, the property was zoned residential and the witnesses for the Park District based their evaluation of the property on that basis. The owners insisted throughout the trial that the existing zoning was unsuitable and that the jury should consider the likelihood of rezoning and the resultant increase in valuation in making their determination of the fair cash market value. It is well settled that under the law of eminent domain the owner of property condemned for public use is entitled to just compensation measured by the fair cash market value of the property for its highest and best use upon the date that the condemnation petition is filed. City of Chicago v. Giedraitis, 14 Ill.2d 45, 49, 150 N.E.2d 577; City of Chicago v. Equitable Life Assur. Soc., 8 Ill.2d 341, 345, 134 N.E.2d 296.
It is equally well settled that where the jury have viewed the property and returned a verdict which is within the range of the evidence, that their verdict will not be upset unless it can be clearly established that it resulted from passion, prejudice, or palpable mistake. County of Cook v. Colonial Oil Corp., 15 Ill.2d 67, 69, 153 N.E.2d 844; City of Chicago v. Harrison-Halsted Building Corp., 11 Ill.2d 431, 437, 143 N.E.2d 40.
It is not so well settled, at least in Illinois, whether in considering the highest and best use of the land for determining the just compensation due the owner, a use can be contemplated which would not be permitted under existing zoning restrictions. Appellants cite an impressive array of cases from other jurisdictions to the effect that the reasonable probability of rezoning in the near future can be taken into consideration in a determination of just compensation. State of Washington v. Motor Freights Terminals, Inc., 57 Wn.2d 442, 357 P.2d 861. We think this is a reasonable rule, and, in essence, it is the basis for appellants' "theory," i.e., the jury should have considered the reasonable probability of the rezoning of the property to a less restrictive use in the near future. However, we cannot agree with their contention that they were denied the right to present this view to the jury.
Appellants' opinion witnesses testified that the existing residential zoning had a depressing effect on the valuation of the property, stated that its highest and best use would be some classification of business, and gave the opinion, over objection, that there was a reasonable probability of obtaining rezoning. Evidence was introduced of a sale of a parcel south of the subject property in 1961 for $15,000 an acre after it was conditionally rezoned from residential to "Office and Research." In their ...