APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, JR., Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The Park District of Highland Park filed a petition on June 29, 1971, to condemn lots 39 and 40 in Block 1 of the First Addition of Ravinia Highlands in Highland Park, owned by Maria C. Orrico and her family. On March 1, 1972, the Orricos filed a counterclaim alleging that such a taking would cause damage to adjacent lots 37 and 38, which they also owned. After negotiations, the Park District decided to increase the taking and filed a petition to condemn the alleged damaged portions of the adjacent lots. The main question presented to the jury was the fair cash market value of the lots taken as of the agreed upon valuation date, January 11, 1974. After a trial in which the jury viewed the property, the trial court entered judgment on the jury's verdict in the amount of $68,000, from which the Park District has prosecuted this appeal.
At the date of valuation, January 11, 1974, the property in question, hereinafter referred to as lots 37, 38, 39 and 40, was an irregular, somewhat "T" shaped parcel of vacant land consisting of approximately 1 1/2 acres situated in Highland Park. The following map diagrams the subject property:
The contour lines of the lots slope gradually down from Pleasant Avenue to a ravine (located approximately 300 feet from Pleasant Avenue, which runs through lots 38, 39 and 40) where the land suddenly drops off 8 to 12 feet for about 75 feet and then returns to the original height and gradually slopes upward to the Chicago & Northwestern Railroad tracks located at the rear of the property. All of the lots conform to the existing zoning, "D" single-family residential, which requires a minimum lot size of 7,260 square feet, minimum lot depth of 125 feet and a minimum amount of table land per lot. Neither the use nor the size of these lots had changed in any respect for a number of years, nor had the Orricos ever contemplated resubdividing the lots.
Lot 37 is divided into three separate lots, all of which front on Bellevue Place. The Orricos only own the middle 151.75 feet of that lot. The Orricos own all of lot 38. However, in their counterclaim they failed to allege any damages to the first 150-foot area east of Pleasant Avenue. The Orricos also own all of lots 39 and 40. Lots 38, 39 and 40 all front on Pleasant Avenue. The property sought to be condemned by the Park District consists of the middle 151.75 feet of lot 37, the rear 313.65 feet of lot 38 and all of lots 39 and 40.
At the trial on January 28, 1974, both parties agreed that the highest and best use of the lots was single-family residential, as zoned. The only issue raised was the number of new lots that could be developed from the existing lots for single-family residential use which would comply with the existing zoning.
The Park District called two expert witnesses who testified that the property in question could be resubdivided into five lots: two 50-foot lots on Pleasant Avenue and one 51.75-foot lot and two 50-foot lots on Bellevue Place. They testified that they took into consideration the frontage of the property on Pleasant Avenue and Bellevue Place, the total area of the site, the topography, the marketing conditions in the neighborhood, the demand for vacant lots, the probability of obtaining a permit to divide the property, the zoning ordinance and the feasibility of costs involved in developing the parcel. They respectively testified that, in their opinion, the fair cash market value of the property sought to be condemned was $41,300 and $42,000.
The first witness called by the defendants was Charles Greengard, a consulting engineer who has had experience in laying out plats of subdivisions within the city of Highland Park. He testified that one week before the trial the defendants' attorney approached him seeking to have him prepare a preliminary plat resubdividing the existing lots. Over the objection of defense counsel, the witness was allowed to testify that he did prepare a plat in compliance with existing zoning, dividing the existing lots into eight new lots and the plat was then admitted into evidence.
The Orricos called two expert witnesses who were professional appraisers who, relying heavily upon the Greengard plat in valuing the property, testified that the existing lots could be resubdivided into eight new lots which would conform to the existing zoning. The factors that the witnesses took into consideration in reaching their results were the size of the lots, the existing zoning and other sales in the area. Their respective opinions as to the fair cash market value of the property on January 11, 1974, were $80,000 and $81,000.
At the close of defendant's case, the Park District called Margaret M. Sachs as a rebuttal witness. She testified that she was a resident of Highland Park for over 28 years and presently serves as chairman of the Highland Park Plan Commission. She stated that the Greengard plat was not in conformity with the "D" zoning classification because five of the lots did not conform to the minimum lot depth regulation of 125 feet, that the road easements shown on the plat presented fire protection problems and that there may be violations of the table land requirement with respect to at least one of the lots. She concluded that she did not see how the Plan Commission could approve the Greengard plat. She based her opinion of the fact that in the nine years she had served on the Plan Commission she knew of only one instance where the minimum lot depth requirement was waived and that was a matter of a one-foot variation.
It was the opinion of the trial court that:
"The problem here for the jury to decide in determining the valuation is going to ultimately result in whether they find it can be put into more than 5 lots. If that's true, I think that can be a jury question."
The trial court, therefore, allowed the Greengard plat and the testimony of defendants' experts concerning it to be admitted into evidence over the objections of the Park District and subsequently denied the Park District's motion to have that evidence struck and withdrawn.
On appeal the Park District contends that the jury was misled by the numerous incorrect rulings of the trial court on the admission of the Greengard plat and the testimony concerning it; by the trial court's refusal to give written instructions limiting the use of the Greengard plat and the testimony concerning it; and by the prejudicial remarks of the trial ...