APPEAL from the Circuit Court of Du Page County; the Hon.
GEORGE W. UNVERZAGT, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE SEIDENFELD delivered the opinion of the court:
This is an eminent domain case in which the jury's determination of the just compensation to be paid the owner for land taken for a highway interchange turns in large part upon one particular instruction. Although the owner's appraisal witnesses were permitted to take into consideration the reasonable "probability" that the land would be rezoned from its then interim "institutional" classification, the court refused to give a tendered instruction approving this and, instead, gave an instruction which required that, in order to be considered, the rezoning be anticipated with reasonable "certainty." We conclude that this, compounded by the petitioner's attorney's final argument emphasizing "certainty" as opposed to "probability," constituted prejudicial error. We therefore reverse and remand the case for a new trial, without reaching the other grounds urged for reversal.
The property in question is a 9.828-acre parcel, part of 235 acres belonging to the Franciscan Fathers. The defendant's property, which is situated in Oak Brook, Illinois, runs from 31st Street on the north to 35th Street on the south and from Route 83 on the east to Midwest Road on the west. It is at the very edge of Oak Brook.
The original quick-take proceeding was filed on April 28, 1970. An order was entered for the immediate vesting of title and possession and preliminary compensation was set at $196,500. The defendant was given leave to file a cross-petition for damages to the remainder. After an appeal by the defendant (3 Ill. App.3d 503, 278 N.E.2d 111), the Department of Transportation filed action to acquire 951 feet of access rights along 31st Street and access routes along Route 83 from 31st to 35th Streets, immediately adjacent to the defendant's property. While the trial court originally ordered these two actions consolidated, he later vacated this order and ordered that the two cases be tried separately. Thus, it would appear that the value of the lost access rights was not properly before the jury in this case although the defendant's witnesses had to some extent considered the effect this loss would have upon the remaining land in determining the extent of the loss to the remainder. On the other hand, objections to certain questions were sustained because access was not a part of the case.
As stated before, the property in question is situated on the very outskirts of Oak Brook. To the south is Westmont. At the time of the trial the Franciscan property was used solely for church and school purposes and was Institutional an admittedly interim classification. The property to the west is zoned R-1 and R-2, except that the property at the northwest corner which is used as a golf course is not zoned; the property to the north is zoned R-3 and R-4 (the residential rating having the highest density); the property on the northeast corner (directly opposite the corner condemned) is zoned B-1 (business); the property to the east (which is also directly opposite some of the condemned property), is zoned R-2; the property to the southeast is zoned R-1 but there was pending at the time of the trial a petition to rezone this property; the property immediately to the south, which is in Westmont is zoned for a mixture of commercial, industrial and apartment uses. That contiguous to the Franciscan property is in part at least designated for industrial purposes. At the southwest corner of that particular tract is a shopping complex. It is nearly entirely industry from 35th Street, across from the Franciscan Fathers, down to Ogden. Route 83 on the east side of the defendant's property is a heavily travelled road averaging over 24,000 vehicles per day south of 31st Sreet.
In the period from 1966 to 1971 three of the five requests for rezoning had been granted. The successful efforts were all by the Oak Brook Development Company. One of these changes was from R-1 (2-acre residential home sites) to ORA-1 (office, research and assembly). Flexibility in zoning was also shown by a 1969 memorandum from the Chairman of the Plan Commission to the Village Trustees recommending the rezoning of certain residential property to ORA-1. Even a comprehensive plan adopted in 1973, while recommending that the property be developed into residential uses as a buffer to the extremely high densities proposed in Westmont using a planned unit development approach, also recommended that Oak Brook encourage convenient shopping areas.
Mr. Carl Gardner, a city planning and zoning consultant, testified for the defendant that the highest and best use for the corner part (about 25 acres) before the taking of part of the land would have been as a local shopping complex (B-1 zoning) with a gas station at the corner, retail establishments and related office buildings. Such rezoning was reasonably probable because the property is located very advantageously for shopping center use; it is comparable almost identically with the B-1 classification of the property diagonally across from it; with the R-3 and R-4 zoned property there is a tremendous amount of residential area. The zoning ordinance is flexible and subject to adjustment to bring it into accord with existing conditions. He also testified that the highest and best use of the western portion of the property before the taking was R-4. Since the taking, a shopping center would no longer be feasible, and R-4, the most intensive residential use permitted, would be the highest and best use. Another defense witness, Mr. Voosen also testified that the property should be used for a combination of B-1 and R-4 uses.
Most of the defendant's appraisal witnesses testified that the highest and best use of the property, or at least part of it, including that condemned, based on a reasonable probability of rezoning was, before the taking, as a B-1 property. Mr. Feulner testified that before the taking, the best use of the approximately 35 acres of the whole tract was for a commercial center. Mr. Feulner valued the entire tract at $9,428,000 and the buildings at $7,830,000; the total value after the taking would be $15,921,760. The value of the land taken was $786,240; the damage to the remainder $550,000, caused by loss of access to property off of 31st Street, and loss of frontage from 31st to 35th Street. The State's motion to strike the valuation testimony because of the separate valuation of the land and the buildings was denied.
However, Mr. Doss' valuation ($1,070,000 or $1,177,000 for the 10-acre piece) was stricken because he only appraised the land that was taken and did not know the total number of acres in the entire property. Mr. Doss, who was a general manager of the Del E. Webb Corporation, one of the partners of the Oak Brook Development Company which had owned originally about 3,000-3,500 acres of Oak Brook, had testified that the best use of the property was as B-1 since it is across the street from B-1 property. He also testified that the diamond interchange would detrimentally affect the corner because no one wants to live next to a diamond interchange; there are traffic problems in and out of the property and there will be a problem of drainage.
Mr. Dana, who also had been connected with the Del E. Webb Corporation, also testified that the best use of the corner (about 25 acres) based on a reasonable probability of rezoning would be as a B-1 use. After the taking, because of lack of access the area would not be used commercially and an R-4 use would be the best. Mr. Dana valued the property taken at $110,000 per acre and estimated the damage to the remainder to be $400,000.
Mr. O'Leary, a real estate broker, considered the highest and best use of the land, based on the reasonable probability of rezoning, to be ORA-1 (office, research and assembly). He valued the part taken (as part of the whole) at $856,000. He estimated the damage to the remainder at $200,000. The overhead structure as well as the limited access would have detrimental effects on the selling price.
The last appraisal witness, for the defendant, Mr. Enright, testified that the highest and best use of the property would be as a planned unit development. The corner of 31st Street and Route 83 would be a prestige service station location, the section fronting on Route 83 would be B-1 (this is one of the most desirable business locations because of the increase of traffic on Route 83 as well as on 31st Street); certain other areas should be developed as R-3 or R-4 uses. Mr. Enright valued the land taken at $608,000 and estimated the damages to the remainder at $340,000. The damage was due to the fact the property after the taking would have no business value as people do not like to drive up and down frontage roads for business property. Moreover, no informed purchaser would build a single-family residence brand new overlooking Route 83 as people today do not want to overlook heavily traveled property. In addition, he testified that if there was damage to the remainder on the three other corners, there had to be damage to this one. It is a similar type taking. Each one is damaged, depending on its development and its use. He also testified that business property is one of the main reasons why Oak Brook is so desirable and so stable. People lately have become extremely tax conscious as far as the real estate tax goes. Commercial property is a must for a residential community and so is industrial.
The petitioner's valuation witnesses on the other hand all testified that a rezoning to business or commercial was improbable. With one exception, they valued the property as being used for residential uses although they merely assumed such uses were possible and neither indicated that they were possible under the present zoning nor testified that there was a reasonable probability of it being rezoned residential. Their valuations ranged from $157,000-$180,000 for the part taken; there was no damage to the remainder. The exception was Mr. Fitts. He valued the property as institutional or low-density residential; he valued the part taken at $196,000 with no damage to the remainder.
Besides the testimony of the valuation experts, various sales were introduced into evidence. Also Mr. Urhausen, the village manager, testified that a new comprehensive plan had been approved in September 1971, and that it designated the property as residential (Actually these statements were misleading the plan was finally approved by the whole council in 1973 although the jury must have inferred that it was effective in 1971 and the plan merely assumed the property eventually would be used residentially.) Defense counsel's objection to the question whether the property could be rezoned business was of course sustained and the jury properly was instructed to disregard it.
The jury found that just compensation for the taking was $196,560 and damages to the remainder to be $22,575.
This brings us to the owner's first contention that the court's instructions were prejudicially erroneous on the only issue in the case.
• 1 The trial court ruled that there was sufficient evidence from which could be inferred a reasonable probability of rezoning. We agree. The current zoning, institutional, was concededly an interim zoning and rezoning to something else is inevitable. There was testimony the ordinance was flexible. Out of the five applications for rezoning in recent years, three have been granted; one of these was from a residential to a nonresidential use. There have already been at least two zoning ordinances (1959 and 1966) and the comprehensive plan adopted three years after the taking of this property indicated satisfaction with the large areas of low-intensity zoning. Despite the testimony of the petitioner's witnesses (none of whom testified that there was a reasonable probability the land would be rezoned residential and if so whether it would be rezoned low density or high density (R-4 residential)), there is an obvious issue of fact whether there is a reasonable probability the property would be rezoned business or commercial. Mr. Enright testified that business and industry are a must for a residential community. There was testimony from other witnesses as to a need of land for business and commercial uses; indeed there were less than 6 acres of land zoned ORA still available. Although some of this testimony was disputed by witnesses for the petitioner; this dispute does not make it any less a question of fact for the jury to resolve. While most of the property in Oak Brook which bordered on the Franciscan Fathers' property was zoned residential, most in fact was not used for housing. The property to the west was used for golf courses; the property to the east was vacant. With the unused residential land available, a rezoning of the subject property residential might be considered unreasonable, particularly when one takes into consideration the large amount of industrial and business property including a service station immediately to the south and the existence of a heavily travelled highway on the eastern border, all of which would render the property undesirable for residential purposes. Nor is it clear that the occupied portion of the neighboring residential areas would be adversely affected by a rezoning to ORA or B-1. At present, Briarwood Lakes (which borders the Franciscan property on the north), has to the east B-1, R-4 (the highest density residential property and identical to that of Briarwood itself), and ORA property; to the north the property is zoned ORA; to the west and the southwest lie the golf courses.
• 2 Nevertheless, while the trial court agreed as to the sufficiency of the evidence as to the reasonable probability of rezoning, it refused to give the following instruction tendered by the defendant because the IPI Civil No. 300.85 recommends that no ...