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Department of Public Works & Bldgs. v. Kelly





APPEAL from the Circuit Court of Cook County; the Hon. GEORGE FIELDER, Judge, presiding.


99.266 acres in the unincorporated area of Cook County owned by the defendants as co-trustees were taken by two separate condemnation proceedings instituted within a 17-month period by two public bodies, the Department of Public Works of this State (hereafter referred to as the State) and the Forest Preserve District of Cook County (hereafter referred to as the Forest Preserve). The proceeding involved in this appeal was filed by the State on December 26, 1968, to acquire 3.9 acres for the construction of a federally-funded, limited-access expressway (Interstate Highway I-90). The State took title to this parcel on February 21, 1969, under the "Quick Take" provisions of the Illinois Statutes. (Ill. Rev. Stat. 1967, ch. 47, pars. 2.1-10.) On December 15, 1969, the State amended its petition to increase the amount taken to 4.256 acres, and title to the approximate .356 additional acres was taken by the State under the quick take law on or shortly after the date the amended petition was filed. The defendants filed a cross-petition alleging that the remaining 95.010 acres were damaged by the taking and requesting that damages to the remainder be assessed.

Defendants' 99.266-acre tract was bordered on the south, east and north by property of the Forest Preserve. The east boundary of a portion of the tract was 843 feet from the corporate limits of Elk Grove Village. The west boundary of the defendants' property fronted upon Illinois Route 53, the defendants having 2,075 feet of frontage upon and unrestricted access to that highway. The property condemned in this proceeding included their entire frontage upon Route 53. The property to the west of defendants' was in an unincorporated area; the Village of Schaumburg was further to the west. The construction of Interstate Highway I-90 would eventually have deprived the defendants of access to Illinois route 53, the only means of access to their property. The property was zoned for single-family residence use under the Cook County Zoning Ordinance.

On October 17, 1969, the defendants, Kelly and Tures, sold the 99.266 acres to a land trust of which Lee and Barbara Romano (hereafter referred to as the Romanos) were beneficiaries. This sale for a price of $1,750,000 made the Romanos responsible for the conduct of this proceeding and gave them all amounts paid by the State for the land taken, for damages to the remainder and for any other damages, less $14,560 which was to be a credit to the defendants. Although the Romanos were the party in interest after their purchase, this opinion refers to both the original condemnees and the Romanos as the defendants.

While the State's condemnation proceeding was moving toward trial, the Forest Preserve condemned the entire remainder of 95.010 acres in a separate proceeding instituted on May 7, 1970. An ordinance adopted by the Forest Preserve more than 2 years before the filing of the State's condemnation authorized the acquisition of defendants' property by the Forest Preserve by purchase or condemnation. The Forest Preserve condemnation was tried prior to this proceeding, and a jury returned a verdict in November 1970 for $1,800,000 as just compensation for the 95.010 acres.

This case was tried in March 1971 and a jury returned a verdict of $80,000 as just compensation for the 4.256 acres taken and $2750 for damages to the remainder. The trial court granted defendants' motion for a new trial on two grounds. One was that the State's stipulation received in evidence to mitigate damages by providing access to the remainder was not shown to have been authorized by the proper State officials. The second was that the court incorrectly instructed the jury with respect to the requirements for annexation of property in unincorporated areas to an adjoining municipality. This instruction was relevant to defendants' contention that there was a reasonable probability of annexing the property to either Elk Grove Village or Schaumburg which would grant rezoning.

Prior to the second trial, the court made several rulings which affected the course of that trial and which the State contends were erroneous. One ruling was that the defendants had shown a reasonable probability of annexation of their property to either Elk Grove Village or Schaumburg and of rezoning after such annexation. This permitted the valuation experts to testify concerning the value of defendants' property including the remainder when rezoned to a density permitting the construction of apartments. The court denied the State's motion to file a third amended petition and to strike defendants' cross-petition for damages to the remainder, the effect of which, had they been granted, would have precluded the defendants from recovering damage to the remainder because the Forest Preserve then owned the remainder. The court ruled that three stipulations of the State to mitigate damages to the remainder by providing alternate access would not be admitted in evidence. The effect of this ruling was to treat the remainder as permanently landlocked for the purpose of the second trial. The trial court also ruled that both evidence of the sale to the Romanos and the amount of the verdict in the Forest Preserve condemnation would be excluded.

In the second trial held in March 1973, a jury returned a verdict of $59,584 as just compensation for the portion taken and $966,249 for damages to the remainder. The State is appealing from the judgment entered on that verdict.

The highest value the defendants' experts at the second trial placed on the 99.266 acres was $1,688,000. The highest value the State's experts placed on this acreage was $1,466,000. The recovery the defendants will enjoy as a result of the Forest Preserve condemnation and this proceeding, if the judgment in this case is upheld, would be $2,825,833 computed as follows:

Recovery in November 1970 from Forest Preserve condemnation of 95.010 acres ................. $1,800,000

Recovery for value of 4.256 acres taken by the State .................................... 59,584

Amount of verdict in this proceeding for damages to remainder (95.010 acres) ................... 966,249 ___________ Total ............. $2,825,833

Thus, the condemnation by the Forest Preserve and this proceeding would give the defendants $1,137,833 more than the highest value their own experts placed on their property.

The second jury determined that the part taken, which was the frontage, had a value of $14,000 ($59,584 divided by 4.256) per acre. Assuming the remainder had the same value as the frontage, the 95.010 acres, if not damaged by the taking of the frontage, would have a value of $1,330, 147. Computing the value of the remainder on the basis of the per-acre price attributed to the part taken is supported by the opinion of defendants' experts who reached their conclusions by placing approximately the same value per acre on the remainder before the taking as they did on the part taken. The verdict being appealed together with the recovery in the Forest Preserve condemnation gives the defendants approximately $1,400,000 more than the value of the remainder computed on the basis of the amount awarded by the jury for the 4.256 acres taken. While the Forest Preserve condemnation was instituted approximately 17 months after the valuation date (December 26, 1968) used at the second trial, and the value of the remainder may have increased during that interval, there is nothing in the record to indicate that an increase of $1,100,000 or even more was a likely probability.

The issues raised by this appeal and reviewed in this opinion in the following order are whether: (1) The court erred in admitting defendants' valuation evidence based upon the assumption that there was a reasonable probability of both annexation and rezoning with Elk Grove Village or Schaumburg; (2) An instruction concerning the highest and best use of the land was proper; (3) The court erred in denying the State's petition to file an amended complaint and motion to strike defendants' cross-claim for damages; (4) The court erred in excluding stipulations offered by the State to mitigate damage to the remainder; (5) The court erred in ruling the contract of sale to the Romanos as well as evidence of the amount of the Forest Preserve award inadmissible; (6) The verdict in the first trial should be reinstated.

• 1, 2 When land is taken for public use by condemnation, the owner may show what the highest and best use would be at the time of the condemnation provided a reasonable probability of rezoning is established by the evidence. (Lombard Park District v. Chicago Title & Trust Co. (1968), 103 Ill. App.2d 1, 242 N.E.2d 440; Department of Public Works & Buildings v. Rogers (1967), 78 Ill. App.2d 141, 223 N.E.2d 177, aff'd (1968), 39 Ill.2d 109, 233 N.E.2d 409; Park District v. Becker (1965), 60 Ill. App.2d 463, 208 N.E.2d 621.) The theory which the defendants presented was that the highest and best use of the property was for multi-family residential units. This would require rezoning after the property was annexed to either Elk Grove Village or Schaumburg. It is the trial court's responsibility to make a preliminary determination that there is sufficient evidence to establish a reasonable probability of rezoning so as to permit expert opinions of value based upon that probability. (Lombard Park District v. Chicago ...

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