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Department of Transportation v. Janssen

DECEMBER 22, 1975.

THE DEPARTMENT OF TRANSPORTATION, PETITIONER-APPELLANT,

v.

HERMAN E. JANSSEN ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Du Page County; the Hon. PHILIP LOCKE, Judge, presiding.

MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

This appeal arises out of a condemnation case. The Department of Transportation of the State of Illinois condemned the defendant's property in connection with the construction of an expressway interchange in the vicinity of North Avenue and Illinois Route 53. The jury awarded the defendant $45,000 as the just compensation for the taking of his property and the State appeals, contending the award is excessive and was influenced by erroneous rulings of the trial court.

The State contends the trial court erred (1) in allowing improper testimony to the effect that the highest and best use of the subject property was to hold it for future development; (2) in denying the State a preliminary hearing outside the presence of the jury on the question of the reasonable probability of rezoning; (3) in denying admission of its proffered evidence of a comparable sale; (4) in allowing the defendant to give evidence of the effect of the proposed highway construction on the trend of zoning in the area; (5) in refusing to admit into evidence the original deed to the property showing a restriction to residential use; (6) in denying the State's motion for a mistrial following prejudicial remarks made by a witness for the defendant or to strike his testimony, and (7) in allowing defendant's valuation witness to testify to a value based on estimated square foot value of comparable property. We will briefly discuss the State's contentions in the order named.

For the reason noted in the discussion of the State's second point, we do not here consider the State's first contention.

As to the State's second point, we agree that under proper procedure a preliminary hearing should be held by the trial court on the question of the reasonable probability of rezoning within a reasonable time, before a witness is allowed to testify as to the effect of rezoning on the value of the condemned property. This court so held in Department of Public Works & Buildings v. Rogers, 78 Ill. App.2d 141, and Lombard Park District v. Chicago Title & Trust Co., 103 Ill. App.2d 1.

• 1, 2 However, we do not have a clear-cut violation of that rule in this case. No evidence was offered as to the value of the property if it were to be rezoned. The evidence objected to was to the effect that nearby properties had been rezoned to commercial use and that the subject property was capable of being put to commercial use, if rezoned. The relevance of such testimony prior to any evidence on the probability of rezoning might be questionable. But, the evidence was obviously offered for the purpose of establishing, not the actual value, but the propriety of using as the highest and best use the continued holding of the land for future development. Two witnesses were allowed to testify that an element they considered in arriving at the value of the property was the use they described as "holding for future development." In our opinion this was an improper element — it was not a use at all and was highly speculative. However, the State did not preserve its objection to this testimony because the point was not included in the post-trial motion. Therefore, it cannot be considered here. On the other hand, since the State did not object to it when offered, it provided some basis for the testimony as to the trend toward business development in the area and and the subject property's adaptability for such use.

• 3 Moreover, in view of the peculiar fact situation existing here, a hearing on the reasonable probability of rezoning would have been of no value to the State. The property adjacent to the subject property, consisting of four lots, identical in size to the condemned lot, had previously been rezoned for commercial use by order of the same court in a previous zoning case. The holding of the court as to the probability of rezoning the subject property was so clearly indicated by the previous zoning case as to make a hearing on this point superfluous. The court's order in the previous zoning case was introduced into evidence by the defendant and the court could hardly have decided against the defendant on this point. Under these circumstances the lack of a hearing on the question was not significant.

It is generally accepted that the question as to whether or not a proffered sale is sufficiently comparable to be offered in evidence and considered by the jury as an aid to determining the value of the condemned property, is a question of law and largely within the discretion of the trial court. (City of Evanston v. Piotrowicz, 20 Ill.2d 512.) This court, commenting on this question in Department of Business & Economic Development v. Brummel, 1 Ill. App.3d 683, said:

"It was, of course, the legitimate function of the trial court to consider whether these other properties were sufficiently similar to the subject property to permit the jury to consider their sales as evidence of value. The determination whether a property is `sufficiently similar' is not capable of precise definition and must be made, in each case, within the wide discretion of the trial court." (1 Ill. App.3d 683, 686.)

The comparable sale offered in this case consisted of four lots of identical size, one improved with a dwelling (the size and condition of which is not revealed by the record), which were sold as one parcel for $85,000. When counsel for the Department asked the witness the sale price of the four lots in question, defense counsel objected on the ground that no ruling had been made by the court as to the admissibility of the sale as a comparable sale and that this was contrary to an agreement previously made in chambers between counsel that no comparable sale would be introduced without the court having first passed on whether it was admissible as a comparable sale. Counsel for the State denied there was any such understanding but the court stated it recalled the agreement and ruled that the question and the answer should be stricken and the jury was instructed to disregard it.

The State denies the existence of any such agreement and there is no record of it in the report of the proceedings of the trial court. The State contends that in any event the exclusion of evidence of a comparable sale cannot be justified on the basis that counsel violated an agreement not to proceed with such evidence until it was approved by the court as a comparable sale, as such a result is arbitrary and disregards the merits of the evidence itself.

• 4 We do not feel it necessary to pass on the question of whether or not the court's ruling excluding the proffered sale was a justifiable sanction for violating the alleged agreement. The record does not reflect that the admission of the sale was otherwise free from doubt. The comparable property was a lump sale of four lots for a total price and the single lot with the improvements may have been worth more than a fourth of this price. Moreover, the seller was allowed to retain the proceeds of any condemnation award and this expectation was substantial, although unknown at the time of the sale. Under these circumstances, we are not prepared to say that the sale was so comparable that its exclusion can only be assumed to be due to a disregard of the alleged agreement. The situation is not that clear, and as otherwise the comparability of the sale was properly within the court's discretion, we are not inclined to regard its exclusion as a reversible error.

The testimony of the defendant's witness to the effect that the proposed construction had an adverse effect on the trend of zoning to commercial may have been a proper objection. The objection was based on the State's reading of the intent of section 9.7, amending chapter 47 (Ill. Rev. Stat. 1973, ch. 47, par. 9.7), the Eminent Domain Act. This section reads as follows:

"§ 9.7. Except as to property designated as possessing a special use, the fair cash market value of property in a proceeding in eminent domain shall be the amount of money which a purchaser, willing but not obligated to buy the property, would pay to an owner willing but not obliged to sell in a voluntary sale, which such amount of money shall be determined and ascertained as of the date of filing the petition to condemn. Provided, that in the condemnation of property for a public improvement there shall be excluded from such amount of money any appreciation in value proximately caused by such improvement, and any depreciation in value proximately caused by such improvement. Provided further, ...


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