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Morton Grove Park Dist. v. Amer. Nat'l Bank

OPINION FILED JUNE 8, 1976.

MORTON GROVE PARK DISTRICT, PETITIONER-APPELLEE,

v.

AMERICAN NATIONAL BANK & TRUST COMPANY, TRUSTEE, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

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

This appeal arises from an action brought by petitioner, Morton Grove Park District (District), to acquire under the Eminent Domain Act (Act) (Ill. Rev. Stat. 1971, ch. 47, par. 1 et seq.), approximately 15 acres of land owned by defendants, American National Bank & Trust Co., First National Bank of Skokie, Exchange National Bank, and Shaf Home Builders, Inc. A jury awarded defendants $1,000,000 for the land taken. Thereafter the trial court allowed the District to take immediate use and possession of the property upon depositing the full amount of the verdict and a surety bond with the county treasurer. Defendants now appeal from both the award of compensation and the order granting the District use and possession of the property pending appeal.

As to the jury's award of compensation, defendants raise four issues for our review: (1) whether the trial court improperly excluded a Morton Grove ordinance rezoning nearby property; (2) whether the trial court erred in admitting a comparable sale offered by the District and excluding a comparable sale offered by defendants; (3) whether the trial court improperly admitted a contract for the purchase of a portion of the subject property by one of defendants; and (4) whether the closing argument of counsel for the District was so prejudicial as to require a new trial. As to the order granting the District use and possession of the property pending appeal, defendants raise four additional issues for our review: (1) whether the procedure followed by the trial court in entering that order violated defendants' right to procedural due process; (2) whether the provision of the Act regarding post-judgment possession of the property adequately safeguards defendants' right to payment of just compensation; (3) whether the scope of possession granted the District exceeded that allowed under the Act; and (4) whether the surety bond required by the trial court was in compliance with the Act.

Since defendants do not challenge the sufficiency of the evidence to support the jury's award, a detailed recitation of the evidence presented is unnecessary. At this juncture, a brief summary of the evidence presented will suffice to put defendants' contentions in context. A more detailed description of the subject property and the surrounding area will be provided when the propriety of the rulings on the comparable sales are considered.

The subject property is a rectangular tract containing approximately 12.15 acres, exclusive of dedicated streets and alleys, *fn1 located in the Village of Morton Grove. The southern 1.5 acres of the property is presently zoned B-2 which is most intensive commercial classification under the Village's ordinance. The balance of the property, approximately 10.65 acres, is presently zoned R-2 which allows single-family residences. For all practical purposes, the property is unimproved.

The District presented the testimony of three real estate brokers and appraisers. As to the highest and best use of the property, all agreed that the portion of the property zoned B-2 and the eastern two-thirds of the portion zoned R-2 should remain unchanged. As to the remaining one-third of the property zoned R-2, one witness testified that its highest and best use would be for townhouses under a R-3 zoning and the other two witnesses testified that its highest and best use would be for apartment units under a multiple family zoning. All thus agreed that the property should have commercial development, 46 single-family residences and either 54 townhouse units or 120 apartment units. One witness estimated the fair cash market value of the property at $900,000, the second at $990,000, and the third at $972,000.

Defendants presented the testimony of two planning and zoning consultants. One consultant's opinion as to the highest and best use of the property indicates that five three-story buildings containing 220 units should be placed on the western portion of the property and 145 townhouse units placed on the eastern portion of the property. The other consultant opined that the highest and best use would be a planned unit development containing 592 multifamily units. Defendants also presented the testimony of three real estate brokers and appraisers. All agreed that the highest and best use of the property would be as a planned unit development with the number of units varying between 350 and 386. If so zoned, the first appraised the fair cash market value of the property at $2,225,000, the second at $2,200,000, and the third at $2,300,000

The District also presented evidence that one of defendants had acquired 83% of the subject property only 20 months before the petition to condemn was filed. At that time, 83% of the property was purchased from a land developer for $670,000.

On the basis of that evidence, and a comparable sale to be discussed later, the jury determined the fair cash market value of the property to be $1,000,000.

Defendants initially contend that the trial court erred in refusing to admit into evidence a Morton Grove ordinance that rezoned nearby property. That property, already improved with a large commercial building and consisting of approximately 10 acres, was previously zoned B-2. Under the ordinance, approximately 4 of the 10 acres including the building remained zoned B-2, and the remaining 6 acres were rezoned under a special use permit as a planned unit development of 315 apartment units. The ordinance made the special use permit contingent on the owners making certain improvements to the existing building, providing specified parking areas and utilities, landscaping the property in a specified manner, and reimbursing the Village for certain traffic control equipment. If any of those conditions went unfulfilled, the special use permit could be withdrawn.

Both at trial, and now on appeal, defendants contend that the ordinance should have been admitted either to corroborate their theory of the reasonable probability of rezoning the subject property, or to corroborate their theory of the highest and best use of the subject property.

• 1 It is well settled that when land is taken for public use by the exercise of the power of eminent domain, the measure of compensation is the fair cash market value for the highest, and best use to which the land is available. (City of Chicago v. Giedraitis, 14 Ill.2d 45, 150 N.E.2d 577; Forest Preserve District v. Hahn, 341 Ill. 599, 173 N.E. 763.) However, the owner is not restricted to showing the highest and best use allowed under present zoning regulations, but instead, may show a higher use under less restrictive zoning if there is a reasonable probability of rezoning. Department of Public Works & Buildings v. Rogers, 78 Ill. App.2d 141, 223 N.E.2d 177, aff'd, 39 Ill.2d 109, 233 N.E.2d 409; Park District v. Becker, 60 Ill. App.2d 463, 208 N.E.2d 621.

In Rogers, the land taken was zoned residential. Defendant's theory was that there was a strong probability that the property could be rezoned for gasoline service station purposes. In support of that theory, defendant attempted to introduce an ordinance of the city of Highland Park that rezoned nearby property from residential to a shopping center classification. The trial court refused to permit the introduction of the ordinance and refused to allow any testimony with reference to the ordinance. The appellate court held the exclusion of the ordinance. The appellate court held the exclusion of the ordinance to be error, stating:

"The reasonable probability of rezoning relates to the flexibility of a zoning ordinance. The zoning ordinance here involved was shown to be flexible by the rezoning of the [nearby] property * * *. The jury was entitled to know that flexibility." 78 Ill. App.2d 141, 145.

The Illinois Supreme Court agreed that exclusion of the ordinance was error and affirmed the appellate court, stating:

"Were the zoning ordinance inflexible, the trial court could very well have concluded that there was no probability of rezoning. However, the ordinance was proved to be flexible and there was sufficient basis for its introduction in evidence in support of the reasonable probability of the rezoning theory." 39 Ill.2d 109, 114.

It is thus beyond peradventure that if there is a dispute as to the flexibility of the present zoning ordinance, the condemnee has the right to present evidence in support of a theory of reasonable probability of rezoning. Moreover, that evidence is not restricted to the rezoning of nearby property, but may include many different factors. Lombard Park District v. Chicago Title & Trust Co., 103 Ill. App.2d 1, 242 N.E.2d 440.

However, in the instant case, there was no dispute as to flexibility or the reasonable probability of some type of rezoning. Prior to trial, the District and defendants had entered into a stipulation that, in pertinent part, provided:

"Any party herein may offer evidence in support of its contention as to the highest and best use for which the R-2 part of the subject property is and was, on December 11, 1972, available and of the fair cash market value of the property with the aforesaid R-2 portion thereof being available for said highest and best use, provided that said highest and best use for which said party contends and offers evidence, including ...


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