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Dept. of Trans. v. Quincy Coach House





Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Adams County; the Hon. Richard Mills, Judge, presiding. MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

On April 25, 1973, petitioner, the Department of Transportation of the State of Illinois, brought an eminent domain proceeding in the circuit court of Adams County to acquire 7-foot strips of land on the south and west sides of a parcel of real estate and a diagonal strip across the corner of the parcel where the other two strips met. The petition for condemnation alleged that the purpose of the acquisition was for highway improvement. The property in question, a 90 by 100 foot plot located at the northeast corner of Broadway and 24th Street in Quincy, Illinois, was owned by the defendant, Quincy Coach House, Inc., which operated a restaurant on the premises. Defendant filed a cross-petition alleging damages to the remainder of the property as a result of the taking. Following a jury trial on May 13, 1974, a judgment was entered on the verdict, awarding defendant $7,500 for the land taken and $68,000 as damages to the remainder of the property. On appeal, the appellate court affirmed the judgment (Department of Transportation v. Quincy Coach House, Inc., 29 Ill. App.3d 616), and we granted petitioner leave to appeal, wherein it raises certain evidentiary questions.

Defendant's restaurant was operated in a one-story building. Prior to the taking, approximately 18 vehicles could park on the property along two sides of the building. It was from this area that the strips were condemned. This loss of property virtually eliminated the availability of parking space on the premises. The expert appraisal witnesses for the opposing parties agreed that the greatest portion of the damages occurring to the land not taken resulted from the loss of parking.

At a hearing on May 4, 1973, to determine preliminary just compensation, the "quick-take" proceeding, Louis Kienzler, an appraiser, testified as an expert witness for petitioner. He stated that in his opinion the fair cash market value of the realty prior to the taking was $70,000. As to the property taken by the State, he valued that, as part of the whole tract, at $6,600, and the part which remained after the taking at $40,900. On cross-examination, Kienzler explained that in evaluating real estate to determine the fair cash market value there are generally three approaches used, cost of reproduction, market and income. The cost approach consists, basically, of estimating the value of the land and then adding to it the value of the improvements less depreciation. Depreciation, however, includes many factors, such as the presence or absence of parking, which might be necessary for the operation of the business. The market approach is used by finding similar land and improvements which have recently been sold, and then comparing those with the present real estate to determine a fair value. The income approach is reached by determining what income the real estate would produce if it were rented. Specifically, an appraiser would find out what the owner's expenses are, such as real estate taxes, depreciation, repairs and insurance, and what the reasonable expected return would be from such rental property. Using these figures he would compute the net income from the expected rental and then capitalize it at the going investment rate into an indication of present value. The resultant figure is then added to the value of the land to determine the fair value of the real estate. Kienzler stated that he employed both the cost and income approaches in determining the fair cash market value, but not the market approach, since no comparable property could be found. Defendant's counsel then questioned Kienzler about the actual figures he used and his computations. Following this hearing the trial judge set preliminary just compensation at $36,500.

At trial before a jury three appraisers appeared on behalf of the defendant. Everett Talcott testified that the fair cash market value of the real estate prior to the taking was $117,000. In his opinion the value of the property taken was $7,840, while the damage resulting to the remainder was $75,160. Talcott utilized the cost and income approaches in evaluating the property. Under the cost approach, he valued the land separately from the improvements and then added the figures to reach a final value for the entire property. He illustrated these computations to the jury. He further testified, regarding the income approach, that it is a customary practice for restaurants to be leased with the rental based upon a percentage of the annual sales. Talcott explained his calculations under this approach and also illustrated them on a blackboard for the jury. On cross-examination Talcott said that, in reaching a final value under the cost approach, judgment must be used to determine whether the land and the improvements are "compatible." In this case, he believed they were.

Donald Voth and George Mating testified that they employed the cost and income approaches in the same manner as did Talcott. Voth expressed the opinion that the value of the property prior to the condemnation was $116,000, that the property taken was worth $7,470, and that the damage to the remainder was $86,030. Mating thought the proper values were $100,000, $5,810 and $72,190, respectively. In describing his use of the income approach, Voth detailed his computations to the jury on a blackboard. Both Mating and Voth stated that, in appraising the realty under the cost approach, they determined that the land and the improvements were compatible.

Louis Kienzler again testified for the petitioner at trial. He expressed the opinion that the fair cash market value of the property before the condemnation was $75,000 and that the value of the property taken was $7,200. In testifying on the question of damages to the remainder, Kienzler stated that one of the factors he considered in making his appraisal was the "cost to cure." Defendant objected to such testimony and, in an offer of proof, Kienzler explained that the "cost to cure" was the money defendant would need to expend to repair the damage to its business by the loss of parking. Across the street from defendant's property was a vacant lot which the defendant could acquire for use as a parking lot. The vacant property was owned by the State of Illinois and available for purchase. Kienzler believed the defendant could buy the property for approximately 125% of its appraised value. He viewed this estimated purchase price as the amount of monetary damage done to the remainder. The trial judge sustained the defendant's objection and struck the testimony regarding the "cost to cure" and Kienzler's opinion as to the value of the remainder, which was based upon this testimony. The judge found that it was immaterial to the issues before the court.

Robert Hayes, a professional appraiser, also testified on behalf of the petitioner. The value of the property prior to the taking was, in his opinion, $76,000. The property taken by the condemnation was worth $7,700, and the value of the remainder was $41,500. In response to defendant's question on cross-examination, Hayes stated that he used a process of both the cost and income approaches in determining his opinion of the fair cash market value. No further testimony was elicited to explain his statement.

Petitioner raises six issues on appeal: first, the appellate court erred in holding that certain evaluation evidence given by Kienzler in the "quick-take" proceedings operated as a waiver of petitioner's right to object to certain valuation evidence proferred by defendant during the trial; second, evidence of the amount of business and the gross receipts to determine projected rentals is inadmissible when the real estate is owner occupied and the owner conducts the business; third, evidence of the separate values of land and of improvements is inadmissible and testimony of a witness, based in part on such values, is improper; fourth, it is improper for a valuation witness to state the underlying figures in the cost approach and to state the separate values or results of the different valuation methods; fifth, the trial court improperly struck the testimony of petitioner's witness, Kienzler, as to the damages to the remainder; and sixth, the appellate court erred in holding the verdict was within the range of evidence.

At trial defendant elected to present its case-in-chief first. This election was permitted because title to the property sought by the petition for condemnation had already vested in the petitioner by use of the "quick take" statute, and the defendant had filed a cross-petition for damages to the remainder. (See Department of Business and Economic Development v. Brummel, 52 Ill.2d 538, 540.) During the introduction of defendant's evidence, petitioner repeatedly objected to the admissibility of any evidence of gross sales or receipts from the restaurant's business, and to the use of the income approach as a basis for determining fair cash market value. Petitioner contended that evidence of the volume of business, i.e., the gross receipts or the estimated projected rental, was inadmissible when the property is not devoted to a "special use" and is owner occupied. In resolving this issue on appeal, the appellate court acknowledged prior case law, which enunciated the rule that when premises are owner occupied future projections of rentals are too conjectural to be a proper element in determining value. The court reasoned, however, that since there were no similar sales to compare with, the use of the income approach was no more speculative than the market approach. The appellate court further held the petitioner was precluded from objecting, because it had introduced evidence of projected rentals in the "quick take" proceeding. The evidence referred to by the court was Kienzler's opinion of the property's value, which, as it was brought out during cross-examination, was based in part on his projections of rental income.

Petitioner maintains, in its first issue on appeal, that evidentiary matters occurring in the fixing of preliminary just compensation in "quick take" proceedings have no relevance on evidentiary matters at trial before a jury to determine final just compensation. Accordingly, it cannot be precluded from objecting to improper evidence at the later trial.

In regard to the hearing to determine preliminary compensation, the Eminent Domain Act provides in section 2.2(d):

"Such preliminary finding of just compensation, and any deposit made or security provided pursuant thereto, shall not be evidence in the further proceedings to ascertain finally the just compensation to be paid, and shall not be disclosed in any manner to a jury impaneled in such proceedings; and if appraisers have been appointed as herein authorized, their report shall not be evidence in such further proceedings, but the appraisers may be called as witnesses by the parties to the proceedings." (Ill. Rev. Stat. 1973, ch. 47, par. 2.2(d).)

In Department of Public Works and Buildings v. Dust, 19 Ill.2d 217, 218, this court recognized that the initial hearing "is a proceeding within a proceeding, and its primary purpose is to place possession and title in the State prior to a final determination of just compensation while protecting the interest of the landowners." In light of the language of the pertinent statute and the obvious intent of the legislature to separate the evidence introduced in the "quick take" hearing before the court from that introduced before the jury at trial, we must agree with the petitioner's contention. Since the "quick take" hearing and the trial are separate and apart from one another, the presentation of certain evidence at the former proceeding cannot act as a waiver of the ...

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