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Forest Preserve Dist. v. Kelley





APPEAL from the Circuit Court of Du Page County; the Hon. EDWIN L. DOUGLAS, Judge, presiding.


Rehearing denied April 20, 1979.

The Forest Preserve District of Du Page County (the District) appeals from three separate condemnation judgments which have been consolidated for opinion. The Merchants National Bank of Aurora, under its Trust No. 2014 (Parsons), No. 77-483, the Bank of Naperville under its Trust No. 1116 (Scholz), No. 78-126, and Lawrence A. Gregory, No. 78-192, are defendants.

The District, on June 6, 1975, filed its petition to condemn approximately 2000 acres of land in unincorporated Du Page County. Included were the 160-acre Parsons property at the northwest corner of Book Road and 83rd Street about one mile from the boundaries of the City of Naperville; the 80.5-acre Scholz property located on the north side of 83rd Street about one-quarter mile east of the intersection of Book Road and 83rd Street, less than a mile south of the Naperville limits; and the 80.6-acre Gregory property located about one-half mile east of the intersection of Book Road and 83rd Street, with the southern boundary of the property fronting on 87th Street which is the boundary line between Du Page and Will Counties.

Several legal issues common to the appeals are first considered. These involve certain resolutions passed by the City of Naperville relative to the extension of sewer and water facilities in the unincorporated and unannexed areas and the admission of evidence as to the reasonable probability of rezoning.

The Naperville Resolutions

In 1970 the City of Naperville filed an application with the Illinois Environmental Protection Agency (EPA) for a Federal grant to develop a waste water treatment plant described as the Springbrook Treatment Plant. This application was reviewed by the Northeastern Illinois Planning Commission (NIPC) as a clearing house for Federal funds, and because the treatment plant was to be located within an area designated as prime open space under NIPC's plan, concern was expressed about the impact the plant might have on the future development in the area. In order to allay NIPC's fears and to assure approval of the grant Naperville in 1971 adopted two resolutions which provided that the City would neither accept annexation in nor supply municipal services to the area designated as "open space," including the area of the subject properties, for at least a period of 10 years, until 1981, without the prior approval of NIPC. According to the resolutions Naperville recognized the open space area as "not suitable" for urban development, and agreed to "continue to protest and discourage development in the area." The subject property owners filed a declaratory judgment suit in 1975 challenging the validity of the resolutions, but on March 8, 1976, chose to voluntarily non-suit the direct attack and challenge the validity of the resolutions in the pending condemnation proceedings. On April 12, 1976, they filed a motion in limine requesting that the evidence relating to the Naperville resolutions be excluded from the condemnation proceeding on the bases that the resolutions were beyond Naperville's home-rule powers, involved an unauthorized attempt to exercise extraterritorial authority and were tantamount to inverse condemnation without compensation. The trial court granted the motion and excluded the resolutions.

In all three cases the District contends that the court in granting the motion permitted an improper collateral attack on the resolutions. It further argues that even if the resolutions could be attacked in an eminent domain proceeding, the presumption of validity was not overcome and further that an attack based on inverse condemnation can only be made where the condemning and zoning authorities are identical.

• 1, 2 The trial judge did not state the particular reasons for his ruling. We are not persuaded that the resolutions are void as beyond Naperville's home-rule powers and subject to collateral attack for that reason, however, even though we recognize the rule that a void ordinance is subject to either direct or collateral attack whenever its authority is invoked in a judicial proceeding. (Department of Public Works & Buildings v. Exchange National Bank, 31 Ill. App.3d 88, 99 (1975).) A decision by a municipality not to accept land lying outside of its boundaries for annexation, and the further decision relating to the nonextension of the sewer and water facilities into that area appear to clearly pertain to the "government and affairs" of the municipality within the intendment of section 6(a) of article VII of the Illinois Constitution. The resolutions do not involve the exercise of extraterritorial jurisdiction; rather, they are an attempt by Naperville to avoid that exercise for a period of time. Further, a decision not to extend municipal services beyond a city's boundaries does not involve "inverse condemnation" in any reasonable sense. Thus the Naperville resolutions were not subject to collateral attack for voidness.

We also cannot support the ruling based on purely evidentiary grounds such as relevancy and the probativeness of the evidence. A prospective developer in the area of the subject properties in determining a price that he could economically afford to pay for the land would most naturally consider the question whether water and sewer services would be available from Naperville as the closest municipality or whether he would be required to get them from a more distant municipality such as Aurora or whether he would be forced to provide private facilities. By analogy to the consideration of a probability of rezoning, this evidence is significant "to the degree that such a change would result in an increase in value, in that a prospective buyer would take that factor into account in determining how much to pay for the land." (Department of Conservation v. Aspegren Financial Corp., 72 Ill.2d 302, 315 (1978).) *fn1 The resolutions were apparently still in force some four years after they were first enacted. This would further indicate to a prospective buyer that Naperville continued to be unwilling to extend the services in the area, a factor which the jury could take into account in determining the effect of the resolutions on the value of the subject properties.

• 3 We therefore conclude that the court erred in excluding the evidence of the Naperville resolutions. Errors on rulings in the admissibility of evidence do not necessarily require reversal unless the jury is misled and a verdict results which is against the manifest weight of the evidence. (Forest Preserve District v. Kercher, 394 Ill. 11, 24-25 (1946).) Therefore, whether the exclusion of the evidence of the Naperville resolutions had that result will be viewed in terms of the evidence discussed in each of the cases.

The Reasonable Probability of Rezoning

The District argues in the three cases that the trial court erred in permitting valuation witnesses to predicate their opinions on the reasonable probability of rezoning.

Resolution of this issue requires a trial judge in a condemnation case to determine, as a preliminary matter, whether there is a reasonable probability of rezoning as to the subject properties. The applicable rules are not seriously in dispute. The test is whether the evidence indicates "flexibility" in making zoning changes without requiring that evidence of changes must be on parcels which are strictly "comparable" to the subject property. Department of Public Works & Buildings v. Rogers, 39 Ill.2d 109, 114 (1968). See also Department of Public Works & Buildings v. Franciscan Fathers, 69 Ill.2d 308, 315 (1977).

• 4 A review of the record in each of the cases leads us to conclude that there was sufficient evidence of flexibility on the part of the Du Page County zoning authorities to justify the admission of evidence as to reasonable probability of rezoning. John Enright testified that there was a rapid commercial and residential growth in the area (77-483; 78-126; 78-192); that nine planned unit developments (PUD's) had been approved in Naperville Township since 1970 (77-483); and that nine or 10 had been approved in neighboring Lisle Township since 1970 (77-483). There was other testimony that the county board had approved the Pebblewood PUD which contained well over 10% office and research use (77-483). James Dunn testified that the Du Page County Board had approved PUD's in various instances in Naperville and Lisle Township (78-126). Allan Efrussy, an employee of the Du Page County Regional Planning Commission testified that the Du Page County Board had issued about eight special use permits for PUD's in Naperville Township alone (78-126; 78-192). Thompson Dyke, a land planner, testified in each of the cases that he planned the Green Trails Development which was roughly 2000 acres in size as a PUD and that it was zoned by Du Page County (77-483; 78-126; 78-192). In sum, there was adequate evidence of a flexible zoning policy offered to support the trial court's decision to permit the valuation witnesses in each case to testify based on the reasonable probability of rezoning.

The District next argues that the evidence of valuation based on the hypothetical PUD should have been excluded because a development on each property was not economically feasible in light of the expressed policy of the neighboring cities of Aurora and Naperville. The District further contends that insufficient evidence was ...

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