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Dept. of Public Works & Bldgs. v. Exch. Nat'l Bk.

AUGUST 18, 1975.

THE DEPARTMENT OF PUBLIC WORKS AND BUILDINGS, PETITIONER-APPELLEE, CROSS-APPELLANT,

v.

EXCHANGE NATIONAL BANK, AS TRUSTEE, ET AL., DEFENDANTS-APPELLANTS, CROSS-APPELLEES.



APPEAL from the Circuit Court of Du Page County; the Hon. ALBERT E. WOODWARD, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

This is an appeal by the defendants and cross-appeal by petitioner from judgments entered in an eminent domain proceeding held in the Circuit Court of Du Page County. Defendants' appeal concerns a pretrial order restricting the evidence of valuation of the property taken to R-2 Single Family Residence. The cross-appeal concerns damages to the remainder of the property not taken.

THE DEFENDANT'S APPEAL

This matter arises from the trial of a condemnation case wherein the Department of Public Works and Buildings of the State of Illinois petitioner-appellee-cross-appellant (hereinafter referred to as "the State") acquired approximately 16 acres of land located at the southwest corner of Lake Street (U.S. Route 20) and Illinois Route 53 in the village of Addison, Du Page County, for Federal Aid Highway 61. The petition to condemn was filed October 20, 1969. On April 13, 1970, the State acquired title to the 16 acres (hereinafter referred to as the "part taken"), pursuant to the provisions of the Eminent Domain Act (Ill. Rev. Stat., ch. 47, § 2.1 et seq.).

The part taken was a part of a larger 70-acre tract (hereinafter referred to as "the subject premises" — see diagram), title to which is held by defendant-appellant — cross-appellee, Exchange National Bank of Chicago, as trustee under Trust No. 21534. Defendants-appellants — cross-appellees, G. Dana Tokoph and Alice K. Tokoph, are the beneficiaries of that land trust.

Prior to condemnation, the subject premises had 1538 feet of frontage on the south side of Lake Street (U.S. 20) and 1363 feet of frontage along the west side of Illinois Route 53. The subject premises is bisected by an underground pipeline easement running from east to west from a point about 500 feet south of the intersection of Route 53 and Lake Street to a point 1330.4 feet south of the south line of Lake Street on the westerly line of the property. It is also bisected by a Commonwealth Edison high line right-of-way about 250 feet wide running in a westsouthwesterly direction across the property from a point approximately 906 feet south of the intersection of Route 53 and Lake Street on the east line of the subject premises to a point approximately 2515 feet south of the south line of Lake Street along the west line of the subject premises. The subject premises does not include a 1-acre parcel of land at the corner of Lake Street and Route 53, which is zoned for and used as a service station.

A brief history of the defendants' interest in the subject premises is necessary. In September 1967, Mr. Tokoph, a developer, became aware of the property through Mr. Anthony Ross, a banker and developer from Addison, who then owned a partial interest in the north 450 feet. Mr. Ross at that time had negotiated with the Kresge Company for the sale of 10 acres of land at a price of $300,000 for a K-Mart to be located on Mr. Ross' property at the southwest corner of Lake Street and Route 53. However, Mr. Ross' ownership was insufficient to accommodate K-Mart design requirements, whereupon Mr. Tokoph and Mr. Ross entered into a joint venture agreement to develop the whole subject premises together with 40 contiguous acres to the south, which at the time was owned by Apollo Savings and Loan Association.

The defendants later acquired title to all this property including the north 450 feet fronting on Lake Street. The assemblage totaled 110 acres. *fn1

After acquiring an interest in the 110 acres and to consummate the agreement with K-Mart, the defendants caused a petition to be filed with the village of Addison requesting annexation of the 110 acres and zoning upon annexation, pursuant to an annexation agreement. After the required public hearings were held and on March 18, 1968, the village of Addison passed an ordinance authorizing the president and village clerk to execute an annexation agreement with the owners of the subject property.

The agreement, as amended, provided for annexation of the 110 acres to the village of Addison and for zoning as follows:

Parcel A — the south 40 acres — R-2 Single Family

Parcel B — the middle 56 acres — R-3D General Residence (multiple)

Parcel C — the north 14 acres — B-3 Service Business district

The amended agreement further provided that the city would supply the necessary utility services; however, the owners were required to donate certain lands for public use, submit a preliminary plat for the single-family area, and pay annexation fees. A later amendment to the agreement allowed the owners to make a cash contribution to the village in lieu of the land donation.

In accordance with this written agreement, on April 15, 1968, the Village Board passed an ordinance annexing and rezoning the subject premises. However, the ordinance contained a further provision:

"Section (4). That if any of the territory hereby annexed and hereby zoned are within the proposed Right-of-Way for I-161, and it becomes necessary for the Department of Public Works of the State of Illinois to acquire any such property by eminent domain, that the zoning classification of said property will revert to R-2 Single Family Residence District. Said reversion will be as of the date that notification is received by the petitioners, and the Village of Addison from the Department of Public Works that said property is to be used for said Right-of-Way."

The addition of section 4, which was not contained in the annexation agreement, was the result of a question put to Mr. Anthony Ross by village president Warthen at the March 18, 1968, meeting of the Village Board of Trustees. As stated in the record of minutes of the meeting:

"President Warthen asked of Mr. Ross whether he would agree not to build in the proposed right-of-way of I-61 until the Village and State Highway Department agreed to it; also, whether he would agree that when the right-of-way is purchased, those portions of the R-3 and B-2 within the right-of-way would revert to R-2 zoning, explaining it was in the public interest on a cost basis. Mr. Ross agreed.

Trustee Hurley made a motion, seconded by Trustee Walley, that the Pre-annexation Ordinance be adopted as read, with provision in the Annexation Ordinance that any properties so annexed that fall within I-61 right-of-way revert to R-2 and also that no building be constructed within proposed right-of-way without agreement of the Village and State Highway Department."

On March 18, 1969, proposed rights-of-way for Route 61 were located one-fourth to one-half mile east of Route 53 and east of the subject premises and had been so located for years. When the annexation ordinance was passed by the Village Board on April 15, 1968, the proposed right-of-way for FAI Route 61 was to cross Lake Street east of Route 53 and did not touch any portion of the subject premises.

Within a month after the annexation and zoning of the subject premises, the State of Illinois announced at a public hearing (May 10, 1968), that a new proposal for the right-of-way for Route 61 was being made and that the new route would cross Lake Street just west of Route 53 and would cross through the subject premises. After the public hearing and after consideration by the Department of Public Works, the new center line of Route 61 was recorded with the Du Page County recorder on June 19, 1968, and the route received the approval of the Federal Government on July 18, 1969. The Federal approval was a prerequisite to the validity of the scheduled route.

The village of Addison zoning ordinance map for the year 1969, the zoning ordinance in effect at the time of the filing of the petition to condemn in this case, shows the property in question zoned B-3 and R-3D and does not indicate any R-2 zoning on the property which is the subject of this law suit.

After the location of Route 61 was changed, the State assigned appraisers to value the property to be taken in the proposed condemnation. The appraisals were made in August of 1968, about 14 months prior to the filing of the condemnation petition. At that time, the southerly 40 acres had not yet been sold and, the State appraisers valued the property taken, in form, as if it was three separate parcels. In the body of the appraisals, each of the appraisers treats the property in question as a single ownership.

Both State appraisers state in their appraisals that in their opinion (under a heading which they designate "First Assumption"), the highest and best use of the property in question is commercial and multiple in accordance with its zoning. In the body of the appraisals, the appraiser Fitts comments on page 7 of his appraisal:

"In my opinion the highest and best use certainly follows the zoned areas, since those will develop the greatest net return to the land and would be in keeping with the needs of the community, as well as the general over-all plan. This particular portion of the business zoning on the Lake Street and Route 53 intersection is the best in the local area because it is not cut up by the transmission line or pipeline easement and does not have frontage on the two major highways. The other land in the vicinity is not quite as desirable, and the subject thus has the edge over all others in the vicinity."

Both State appraisals also contain a cover page indicating that the ultimate determination of "approved" valuation was based on the opinion of Richard E. Quinn, who is a special assistant attorney general in Peoria, Illinois, that "the property taken for ...


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