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City of Chicago v. A.j. Schorsch Realty Co.

JUNE 15, 1970.

CITY OF CHICAGO IN TRUST FOR THE USE OF SCHOOLS, PLAINTIFF-APPELLEE,

v.

ALBERT J. SCHORSCH REALTY CO., INC., ET AL., DEFENDANTS, NATIONAL BANK OF ALBANY PARK IN CHICAGO, AS TRUSTEE UNDER TRUST NO. 11-1030, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO EXCHANGE NATIONAL BANK OF CHICAGO AS TRUSTEE UNDER TRUST NO. 15166, AND LA SALLE NATIONAL BANK OF CHICAGO AS TRUSTEE UNDER TRUST NO. 35232, SUCCESSOR IN INTEREST TO JOHN PRZYWARA AND JOSEPHINE PRZYWARA, HIS WIFE, DEFENDANTS-APPELLANTS, CONSOLIDATED WITH CITY OF CHICAGO IN TRUST FOR THE USE OF SCHOOLS, PLAINTIFF-APPELLEE,

v.

JOHN PRZYWARA, ET AL., DEFENDANTS, NATIONAL BANK OF ALBANY PARK IN CHICAGO, AS TRUSTEE UNDER TRUST NO. 11-1030, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO EXCHANGE NATIONAL BANK OF CHICAGO AS TRUSTEE UNDER TRUST NO. 15166, AND LA SALLE NATIONAL BANK OF CHICAGO AS TRUSTEE UNDER TRUST NO. 35232, SUCCESSOR IN INTEREST TO JOHN PRZYWARA AND JOSEPHINE PRZYWARA, HIS WIFE, DEFENDANTS-APPELLANTS.



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

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied August 3, 1970.

This is an eminent domain proceeding commenced in 1965 by the Board of Education of the City of Chicago to acquire for school purposes five parcels of land referred to as Parcels A, B, C, D and E. The instant appeal concerns Parcels B, C and D, which consist of approximately nine and one-half acres of vacant land except for an old frame house. These three parcels were the subject of a prior appeal in which this court reversed judgment in favor of plaintiff and remanded the cause "with directions to vacate the order striking the traverse and motion to dismiss of National Bank of Albany Park, to vacate the order denying leave to Exchange National Bank to file its traverse and motion to dismiss and to conduct such proceedings as may be required." 95 Ill. App.2d 258, 263, 238 N.E.2d 434.

The mandate of the Appellate Court in the prior appeal was filed in the trial court on October 22, 1968. On remand and after hearing evidence, the trial court (1) overruled and denied defendants' motions to dismiss; (2) denied leave to defendants to file a petition to establish a new date to fix the valuation of the property involved; and (3) denied leave to defendant National Bank of Albany Park to file a cross petition for damages to a remaining five-acre tract immediately north of and contiguous to Parcel D of these proceedings. In a valuation trial a jury verdict fixed the value of Parcel B at $165,000, C at $92,000, and D at $92,000. Judgments were entered on the verdict.

Defendants appeal from orders striking portions of the motions to dismiss, overruling and denying the motions to dismiss, denying leave to file certain petitions, and from the verdict and judgments entered thereon. On appeal defendants contend they did not receive a proper hearing on their motions which were either dismissed or denied. Also, because of prejudicial trial errors, they did not receive a fair valuation trial.

Initially considered is defendants' contention that the trial court erred in striking their motions to dismiss and violated their right to due process of law. The motions alleged the following:

"1. Plaintiff failed to prepare any preliminary plans for the construction of a school or to decide on what type of school it would construct on the proposed site.

"2. Plaintiff, prior to the initiation of the instant suit, began a prior suit seeking to condemn a site slightly less than three acres of land in the immediate vicinity which was subsequently dismissed. Plaintiff also had initiated a suit prior to this instant suit, seeking to condemn a site of approximately 19 acres, also in the immediate vicinity. This second suit also was dismissed by the plaintiff prior to beginning this suit. By reason of the premises the attempt to take herein demonstrates an attempt to take an excessive amount of property.

"3. No reports, surveys, or other basis for a recommendation for the taking, or reason why plaintiff should proceed differently in this suit from its proceedings in the two suits heretofore referred to, appear anywhere of record.

"4. Plaintiff has failed to comply with an essential condition precedent to the filing of its Petition herein in that it has failed to comply with the provisions of Section 11-12-4 of Chapter 24 of the Illinois Statutes.

"5. Since plaintiff relies on the exceptions contained in Section 42 of Chapter 102 of the Illinois Revised Statutes relating to Meetings of Public Agencies to keep from the record any information which enters into its purported exercise of discretion to acquire the real estate here involved, their failure to comply with the duties of the statute requiring their reference to the Chicago Plan Commission constitutes an abuse of power and prevents any reasoned decision or check or balance on the administrative actions of the Board of Education as plaintiff herein. It further prevents any review which might serve to uncover issues which were ignored or inadequately treated by the Board of Education; and refuses to this defendant the constitutional and statutory protections intended by the Illinois Legislature in the Plan Commission Statute. As a result thereof, this defendant is deprived of due process in that there is a complete absence of any review of plaintiff's decision to take this property."

Thereafter, plaintiff filed a motion to strike the motions to dismiss on the ground that the motions were legally insufficient. On December 20, 1968, the trial court entered an order which included directions to plaintiff to respond to certain paragraphs of the provisions of defendants' Request to Admit Facts, which had been served on plaintiff on December 16, 1968. On January 3, 1969, and after a hearing, the court entered an order striking paragraphs 1, 3, 4, and 5 of defendants' motions. On January 6, 1969, the remaining portions of defendants' motions to dismiss were denied, after hearing the testimony of witnesses and considering various resolutions of the Board of Education relating to the acquisition, the responses to the Request to Admit Facts which related to the various sites involved, and arguments of counsel.

Defendants contend that the hearing on their motion to dismiss did not fulfill the minimal requirements of due process of law. Defendants argue that "plaintiff in seeking to condemn this property has failed to show any use of discretion in making its determination and additionally abused its discretion in taking an excessive amount of property." They assert that the reasoning of plaintiff's motion to strike was that defendants had no right to inquire into plaintiff's basis for its exercise of eminent domain and that the attempts at discovery by defendants was inhibited by this position, especially as to the question of why the Board of Education changed at least the size of its site on five occasions.

Plaintiff contends that the selection and acquisition of the public school site here involved was within the discretion of the Board of Education. It asserts that it is a long established rule of condemnation law that the exercise of the power to condemn is a legislative and not a judicial question, and the determination by the Board of Education to acquire the subject school site should not be disturbed by the court.

After examining the arguments and authorities cited by both sides, we conclude that an extended discussion would unnecessarily lengthen this opinion. The guidelines to be used here are sufficiently set forth in City of Chicago v. Vaccarro, 408 Ill. 587, 97 N.E.2d 766 (1951); Cafeteria Workers v. McElroy, 367 U.S. 886, 6 L Ed2d 1230, 81 S Ct 1743 (1961); and an article by Chief Justice Traynor of the California Supreme Court in 17 Vand L Rev 109.

In City of Chicago v. Vaccarro, it is stated (p 596):

"This court has held in an unbroken line of decisions that where the right to condemn exists, and the property is subject to the right of eminent domain and is being condemned for a public use, and the right to condemn is not being abused, courts cannot deny the right to condemn on the ground that the exercise of the power is unnecessary or not expedient, as the determination of that question devolves upon the legislative branch of the government and is a question which the judicial branch of the government cannot determine; and that in such cases courts may only rightfully determine whether a petitioner has the power to exercise the right of eminent domain, whether the property is subject to the right of eminent domain and is being taken for a public use, whether the power is being abused, as by the taking of an excessive amount of property, and other kindred questions which do not involve a determination of the necessity or expediency of the taking of the lands sought to be condemned."

And at page 597:

"The general rule is that where the legislature has delegated to a corporation the authority to exercise the power of eminent domain, the corporation has also the authority to decide on the necessity for exercising the right, and its decision will be conclusive in the absence of a clear abuse of the power granted. . . . An abuse of such power, however, will not be tolerated, and if no necessity for its exercise exists, or if it appears that the quantity of the property sought to be taken is grossly in excess of the amount necessary for the public use, the court will not permit the land to be taken."

In Cafeteria Workers v. McElroy, it was stated (p 895):

"As these and other cases make clear, consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action. Where it has been possible to characterize that private interest (perhaps in oversimplification) as a mere privilege subject to the Executive's plenary power, it has traditionally been held that notice and hearing are not constitutionally required."

Justice Traynor in his article remarked (p 117):

"One is moved to add that these are basic concerns of a court in the review of decisions of administrative agencies. A person has not had a fair hearing if the one in authority, given discretion to adjudge the case in the ample terms of a general policy, has exercised his discretionary power not with the realistic appropriateness that is the very justification of such power, but with such harsh inappropriateness as to mock the meaning of discretion. A court reviewing an alleged abuse of discretion, and finding a prima facie case of arbitrariness, must be alert to ascertain whether or not there emerges from the record some reasonable explanation for the administrative decision. We cannot take it for granted that because an authority is, he thinks. The thought process, or the absence thereof, of the one in authority has more than once been the key to determining the issue of due process in administrative proceedings."

Summarized, the motions to dismiss were substantially based on the following grounds: (1) preliminary plans for construction for a school or type of school were not made; (2) the taking was excessive; (3) no reports, surveys, or other basis why plaintiff should proceed in this suit differently than in the two suits it heretofore dismissed appear of record; (4) plaintiff did not consult with the Chicago Plan Commission; and (5) plaintiff has kept from the record information which entered into its exercise of discretion in seeking to acquire the school site.

[1-3] After examining this record, we find that in the instant case the filing of the resolution of the Board of Education to acquire the subject property was sufficient. No plans, reports or surveys were required to be prepared as a condition precedent to plaintiff's exercise of the power to acquire a school site. See 26 Am Jur2d, Eminent Domain, § 117; Village of Depue v. Banschbach, 273 Ill. 574, 113 NE 156 (1916). The dismissal of two previous suits by plaintiff was not relevant to the determination that the taking was excessive. Plaintiff was not required to consult with or ...


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