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Department of Conservation v. First Nat'l Bk.

OPINION FILED MARCH 16, 1976.

THE DEPARTMENT OF CONSERVATION, PETITIONER-APPELLEE,

v.

THE FIRST NATIONAL BANK OF LAKE FOREST ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Lake County; the Hon. LLOYD A. VAN DEUSEN, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

This is a condemnation action under the Eminent Domain Act to acquire 80 acres of vacant, unsubdivided, unimproved land, in Lake County, for open space purposes. The petition was filed October 16, 1973. The case was tried before a jury which viewed the property and returned a verdict of $152,000 ($1900 per acre). Petitioner's only testimony as to value was $128,000 ($1600 per acre) plus evidence of "similar sales" at $1,000 per acre. Defendant's high testimony was $240,000 ($3000 per acre) plus evidence of similar sales at $2560 per acre and $2800 per acre. Defendant has appealed contending that the usual rule of not disturbing a condemnation verdict where the verdict is within the range of evidence does not apply because of error by the trial court in the admission and exclusion of evidence and the giving and refusal of instructions. The issues presented are, did the trial court err:

I. in excluding defendant's land development feasibility study,

II. in excluding evidence based on a reasonable probability of rezoning,

III. in admitting sales of similar properties,

IV. in admitting "Soil Survey Maps" as public records without proof of accuracy,

V. in instructing the jury,

VI. in basing its rulings on the evidence on absence of development of adjacent property, which did not develop because it had been condemned by the State,

VII. in not granting a new trial where a juror answered falsely on voir dire.

Appellant's property is an 80-acre tract of land mostly vacant, improved only with a frame farmhouse type building located in Grant Township, Lake County. Prior to 1968 the property was used as a dump for refuse and old equipment of the Wing and Fin Hunt Club. Since 1968 it was used for a time as a dog club.

The topography of the property is hilly with 25-30% of it being low land.

The property is located in an unincorporated area of Lake County, 2 1/2 miles south of Fox Lake; 3 1/2 miles east of McHenry; 3 1/2 miles west of Round Lake; 1 mile north of Volo. It is rectangular in shape, having 1,320 feet of frontage on the north side of Sullivan Lake Road, with a depth of 2,640 feet. The property has no sewer, no water, no gas, nor does it have any municipal services. It is zoned county agricultural, which allows one single-family residential on 200,000 square feet, or slightly less than 5 acres.

The soil conditions in the immediate area of the property are heavily influenced by two bogs — the Volo Bog, which is adjacent to the subject property on the west at the southern 40 acres, and the tip of which extends into the property itself, and the Wilson Bog, which is located northwest of Brandenberg Road.

Areas would be unsuitable for building, either because of poor soil or because of the flood plain. There is a large area of flood plain in the northeast extending to the lot line; there is a flood plain in the northwest section shaped like a hockey stick; there is flood plain along the west property line in the southern quadrant. Approximately 25% of the subject property is unsuitable for foundation footings.

Borings taken showed that the property had an extremely high water table in many areas.

The evidence showed further that the soil conditions in 44% of the property indicate severe (13%) or very severe (31%) limitations on the installation of septic systems, either because of the organic matter or poor permeability. No septic field could be located within 25 feet of the flood plain area, thus further expanding the area which would be unusable.

The area surrounding the property is predominately farm land. To the north is the Bauer farm, which now has scattered gravel mining; to the immediate west is the Volo Bog, a tamarack swamp; further west is farmland; to the east is farmland; to the south and west is a conglomeration of rezonings, called the Krilic property, which property was rezoned in 1968 with the requirement that community sewer and water be furnished on site. The only improvement on the Krilic property was some work done around 1971 on a projected golf course, which work has since been stopped. The condemnation by the Department of Conservation of Krilic's northern 175 acres may be the cause of the nondevelopment.

The property is completely surrounded by agricultural uses except for a few scattered homes on Brandenberg Road and a dog kennel across Sullivan Lake Road. There is no development trend in the immediate area; only one new home having been built since 1971, and one large barn having been remodeled into a home. Valmar Woods Subdivision, located immediately west of McHenry, consisting of 44 one-acre wooded lots, was platted 5 years ago, and since then only about one-half of such lots have been sold. Another subdivision located just east of McHenry, consisting of 138 lots and 27 houses, was recently appraised by Mr. Curtis for the First Wisconsin Mortgage Company for foreclosure purposes. All attempted development, none of which has been successful, is located adjacent to McHenry. The Lake County real estate market is glutted with farm properties, the office of one broker alone having 240 to 250 farm properties listed, with 7 or 8 of those being in Grant Township, and 10 to 12 in Wauconda Township.

I.

• 1 Defendant argues that there was somehow some unfairness about the State's theory that the property was unsuitable for development because of the low areas on the property and because of the soil conditions which would indicate that the property could not be developed without external sewer and water because the soil would not admit installation of septic systems. It has, however, long been the rule that parties to the condemnation proceeding have the right to adopt their own theories as to the highest and best use of the land taken and each may introduce competent evidence without being bound by the theory of the other. (Union Electric Power Co. v. Sauget, 1 Ill.2d 125, 130.

In order to combat the State's theory defendant has prepared their proposed Exhibit 4, a plat of a subdivision feasibility study, designed and offered for the purpose of showing that the property could be developed for one-acre single-family residences. The trial court refused to admit defendant's Exhibit 4.

In Forest Preserve District v. Wallace, 299 Ill. 476, 485 the Supreme Court affirmed the trial court's decision to exclude from evidence the defendant's proposed plat of subdivision showing the property subdivided into buildable lots. The court pointed out where (1) the plat is not of record; (2) where the land has not been surveyed into lots according to the plat; (3) where there was no certainty that it would be so surveyed or become an official plat; and (4) where it is shown that the plat was not contemplated before suit was brought, the plat should be rejected.

In the instant case defendant's plat (1) was not of record; (2) the land had not been surveyed into 1 acre lots; (3) there was no evidence that it would be surveyed or become an official plat; and (4) the plat was obviously prepared for trial. The trial court did not err in excluding this exhibit. Also, see Sexton v. Union Stock Yard & Transit Co., 200 Ill. 244; Martin v. Chicago v. Milwaukee Electric R.R. Co., 220 Ill. 97; Department of Public Works & Buildings v. Lambert, 411 Ill. 183; Park District v. La Salle National Bank, 36 Ill. App.3d 146.

II.

The trial court also refused to admit the testimony of defendant's planner and of the engineer, that the subdivision development was feasible from an engineering standpoint and had a reasonable probability of rezoning. The exclusion was based on the trial court's conclusion that there was no reasonable probability of ...


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