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Forest Preserve Dist. of Cook County v. Tabin

SEPTEMBER 30, 1969.

FOREST PRESERVE DISTRICT OF COOK COUNTY, A MUNICIPAL CORPORATION OF THE STATE OF ILLINOIS, PETITIONER-APPELLANT,

v.

ADRIAN TABIN, ET AL., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding. Judgment affirmed.

MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.

The Forest Preserve District filed a petition on October 24, 1963, to condemn an unplatted parcel of farmland located in the northwest portion of Cook County which was owned by the defendant, Adrian Tabin. The main question presented to the jury was the fair cash market value of the parcel as of the date the petition was filed. Judgment was entered on the jury's verdict in the amount of $987,000, from which the Forest Preserve District prosecutes this appeal.

The property in question, hereinafter referred to as the "Tabin property," is an irregular, somewhat T-shaped parcel consisting of approximately 235.7 acres, 26 acres of which are situated in the Village of South Barrington and the balance of which is situated in the Village of Hoffman Estates. The property fronts to the north on Algonquin Road, and to the west on Freeman Road. Topographically, the Tabin property is rolling land, having both high and low areas. A creek intersects the property in a south-to-southwesterly direction, and the creek has tributaries which run into the low sections of the property. Improvements on the property consist of four dwellings, only one of which is modern, as well as sheds and barns employed in farming.

The Forest Preserve District conceded at trial, which was held in April 1968, that the highest and best use of the Tabin property was as a residential subdivision, but contended that the soil and drainage conditions of the property seriously affected its value for use as a subdivision. The jury was also permitted to view the property during the trial of the cause.

The Forest Preserve District called Adrian Tabin as its first witness, pursuant to section 60 of the Civil Practice Act. Tabin testified that he had owned the Tabin property since 1940 and that it was in essentially the same condition at the time of trial as it was in October 1963, when approximately 200 acres thereof were employed in farming by tenant farmers. The witness identified 24 pictorial exhibits as accurately representing the condition of the property and the buildings thereon; the exhibits were admitted into evidence. Tabin also testified that he had never had soil tests made of the property prior to March 1968.

Ben Fenger, a registered land surveyor, was called as a witness by the Forest Preserve District. He identified two exhibits, both later entered into evidence, one of which was a survey of the Tabin property and the other an aerial photograph of the property taken in December 1968.

Robert Cipriani, a soil technician (called by plaintiff) testified that he made 112 bore samples of the property to determine the soil composition and makeup, and the depths of the various soils on the property. The record of the borings was admitted into evidence, as was a chart of the property on which was plotted the location of the various borings taken.

Lee Schlesinger, a civil structural engineer (called by plaintiff) testified extensively concerning the soil conditions of the Tabin property. He categorized the soil as inorganic, consisting mainly of peat, and also of organic silts. In the opinion of the witness, peat is wholly incapable of supporting heavy loads, and while organic silt is stronger than peat, it also is not suitable for supporting loads. The witness reviewed the 112 test borings made by witness Cipriani and also made several trips to the Tabin property for a visual inspection of the premises. Based on his professional experience in working with soils, the witness gave an opinion that the soil conditions of the Tabin property were the same at the time of trial as they were in October 1963. The witness also related the flooding and drainage conditions of the Tabin property to several flood charts and maps which were later admitted into evidence. In the opinion of the witness, an area of 62 to 65 acres of the Tabin property would have to be filled by a "clean organic fill," other than the type of soil then existing on the property, and he estimated that from 375,000 to 450,000 cubic yards of fill would be needed in order for that area to stay above water.

During the testimony of Schlesinger, the Forest Preserve District sought to introduce its Exhibits 5 and 5-A into evidence. The exhibits showed the depth and location of the soil makeup and conditions on the Tabin property. The two exhibits were identical in every respect, except that Exhibit 5 depicted the soil depths and makeup by means of varying shades of color. Exhibit 5 was objected to and was not admitted into evidence; Exhibit 5-A was not objected to and was admitted into evidence.

Schlesinger testified on cross-examination that the flood maps admitted into evidence did not purport to show the length of time flood water would remain on the property. He further stated that the maps appeared to show flooding in areas which were then developed towns, that the maps were based on undeveloped property, and that development of land does alter water runoff considerably. Schlesinger further testified on cross-examination that many buildings are built on soils containing peat, including portions of Hoffman Estates. He also stated that he was not a land developer, but that he would simply make his findings as to soil conditions and give his data to a developer for his consideration.

Alan Waldman was called as a witness by the Forest Preserve District. The witness testified that he was a real estate appraiser and consultant, and that he also was a licensed real estate broker in Illinois. After testifying extensively as to his qualifications as an expert witness, Mr. Waldman stated that in his opinion the highest and best use of the Tabin property in October 1963 was for subdivision purposes and that its value at that time, based on the soil and drainage conditions of the property, was $365,000.

On cross-examination, the witness was questioned concerning his association with a real estate firm located in downtown Chicago which did business in Chicago's Lawndale area, and which association the witness did not mention on direct examination in relating his qualifications as an expert witness. The witness also testified on cross-examination that he had not purchased, sold, built or developed any property within the past ten years within ten miles of the Tabin property, that he considered the availability of land in the area of subject property in arriving at his valuation of the property, and that one-acre lots on the Tabin property would be in keeping with the zoning of the property existing in October 1963, but that it was also possible to secure a change in the zoning.

Herman Walther was called as a witness by the Forest Preserve District and testified that he was a real estate broker, a land appraiser and a consultant. In the opinion of the witness, the highest and best use of the Tabin property in October 1963 was for subdivision purposes. It was the witness' further opinion that the value of the Tabin property at that time was $350,000.

On cross-examination Mr. Walther testified that a large portion of the Tabin property could be built upon, provided the builder was willing to spend about 35% more in development costs than would normally be the case in development of land. He further testified that he had never built homes, and that he never bought or sold homes within ten to fifteen miles of the Tabin property.

James Willett, an engineer (called by plaintiff) testified that in October 1963 the closest water supply system from the Tabin property was three miles away, as was the nearest Sanitary District sewer main.

The final witness for the Forest Preserve District was Edward Look, a licensed real estate broker in Barrington, Illinois, who testified that the highest and best use of the Tabin property in October 1963 was residential subdivision, and that its value at that time was $350,000. The witness testified on cross-examination that he did not consider the availability of surrounding land in arriving at his opinion of the value of the Tabin property, that he considered the "market" in arriving at his ...


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