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Lake County Forest Preserve Dist. v. Frecska

OPINION FILED JUNE 27, 1980.

LAKE COUNTY FOREST PRESERVE DISTRICT, PLAINTIFF-APPELLANT,

v.

LASZLO FRECSKA ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Lake County; the Hon. ROBERT K. McQUEEN, Judge, presiding.

MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:

This is an appeal by plaintiff, Lake County Forest Preserve District, from an order entered on a verdict which found the just compensation in a condemnation to be $30,000 for the taking and $10,000 for damages to the remainder. Plaintiff filed a petition to condemn a part of the subject property owned by defendant Laszlo Frecska et al., on July 5, 1974; it is located in the village of Riverwoods, Lake County, Illinois, on the east side of Milwaukee Avenue, and is comprised of an 11-acre irregular shaped vacant piece of land zoned for single-family residential use with 91 feet of frontage on Milwaukee Avenue. The portion to be condemned consists of the rear six acres of which approximately 3 2/3 acres are located in the flood plain and abuts the Des Plaines River. A substantial portion of the subject property was at one time used as a sanitary landfill. Plaintiff stipulated that the defendant could retain utility easements across the take.

At the commencement of trial the jury was given the opportunity to view the subject property. Plaintiff's first expert witness, Mr. Richard L. Thacker, a registered land surveyor and professional engineer, testified that, based on his own topographical survey of the site, it was his opinion that approximately 3.67 acres of the property to be taken were within the flood plain of the Des Plaines River.

Mr. Joseph Koenen, a civil engineer, testified that based on the results of soil borings which his company made on the subject property, it was his opinion that the majority of the site was once a sanitary landfill. He estimated that a substantial portion of this landfill consisted of organic as opposed to inorganic matter. He stated that, based on his estimate, the quantity of organic landfill on the site would violate the Village of Riverwoods' ordinance which regulates sanitary landfills.

The issue of organic as opposed to inorganic fill material is highly relevant with regard to the property's suitability for construction as well as the pollution potential of the site. Mr. Koenen had been examined outside the presence of the jury in order to establish the admissibility of his testimony. At that time he explained that inorganic fill material would compress at a much faster rate than organic material. The substance of subsequent expert testimony indicates that this faster compression rate would facilitate less complicated construction procedures when building upon the site. Mr. Koenen also testified that the decomposition of the organic fill material produces a byproduct known as leachate, a pollutant. He stated that there is always a probability that some leachate will leave the landfill. Although he explicitly stated that the pollution of adjacent sites would occur regardless of whether or not a clay liner surrounded the landfill, it appeared from his subsequent testimony that the construction of such a liner would either impede or possibly even prevent such pollution. Mr. Koenen testified both in and outside the presence of the jury that, based on the soil borings, he could not give an opinion as to whether the sides of the landfill contained a clay liner. Mr. Koenen did state, outside the presence of the jury, that, to the best of his knowledge, there was no leachate entering the river. Further, he had no opinion as to whether leachate would enter the river in the future. The trial court did not allow admission of Mr. Koenen's testimony with regard to the probability of pollution from the landfill.

William DeBruler, a real estate appraiser and developer, was called by the plaintiff as a valuation witness. Mr. DeBruler testified that the highest and best use of the subject property would be for real estate investment based on a reasonable probability that the property would be rezoned for commercial use, explaining that the best use would be commercial and, consequently, one would invest in the property with that use in mind. Mr. DeBruler concluded that, in light of the commercial characteristics of surrounding properties, there was a reasonable probability that the property would be rezoned for commercial use. He stated that based on the reasonable probability of rezoning, the physical composition of the soil, the shape of the property and the available utilities, the highest and best use of the subject property before and after the taking would be for a single commercial user. With these considerations in mind he determined that the fair cash market value of the entire 11-acre property, as of July 5, 1974, would be $110,000. He further determined that the value of the six-acre take would be $1,000 as of July 5, 1974. In making this determination he considered the factors listed above as well as the fact that three to four acres of the take is subject to flooding and much of it is sanitary landfill which will be subject to compression for 20 to 30 years before settlement is completed. He also determined that there would be no damage to the remainder after the take.

Plaintiff's last valuation witness was Herbert F. Harrison, a real-estate appraiser. Mr. Harrison stated that the highest and best use of the subject property would be as a real estate investment with a probability of commercial use. The commercial character of the surrounding area would indicate a probability of rezoning for commercial use but the soil composition and shape of the property would make it best suited for a single commercial user. Mr. Harrison valued the subject property as of July 5, 1974, at $100,000. The value of the take, in his estimation, was only $1,500 due to the soil composition and lack of utility to the property as a result of its location within a flood plain. He further determined that there would be no damage to the remainder of the subject property as the area taken would not even have ancillary use to the remainder.

Defendant's first witness, Mr. Rolf C. Campbell, a city planning and zoning consultant, initially outlined the zoning characteristics of the surrounding property through use of demonstrative exhibit No. 6. He determined that, based upon the commercial character of the surrounding property, the probability of rezoning to commercial use and the characteristics of the subject property, the highest and best use of the subject property would be for commercial-recreational use. He also stated that the soil borings (plaintiff's group exhibit No. 5) were not specific enough to determine the composition of the whole site. He concluded that after the take the highest and best use of the remainder would be for commercial purposes as distinguished from commercial-recreation purposes.

The bulk of Mr. Campbell's testimony focused on a concept for development of the property which his company prepared in 1972, two years prior to the take. The four phases of the concept, which entailed a marine sporting goods store, a restaurant, and a marina, constituted defendant's group exhibit No. 4. He stated that this concept was merely an indication of one of the possible uses for which the property might be developed.

Defendant was allowed to enter into evidence the sale of an allegedly comparable piece of property (the Hank property) located to the north of and immediately adjacent to the subject property. We discuss its admissibility later.

Defendant's last valuation witness, Mr. Fred R. Tadrowski, was employed as a real estate appraiser and consultant. He testified that the highest and best use of the property would be commercial-recreational or commercial based on a reasonable probability of rezoning. This opinion was founded upon the size, soil composition, and location of the property as well as the availability of utilities, the flood plain and the zoning of surrounding areas. Mr. Tadrowski also considered the development concept tendered by the owner. He determined that the value of the total property would be $175,000, the market value of the part taken would be $75,000, and the damages to the remainder would be $15,000. The property would be damaged in that it was reduced in size, it could no longer be developed as river front property, and its highest and best use after the take would be commercial. Mr. Tadrowski was also dubious about the organic composition of the landfill due to the soil borings which indicated organic material in borings one and two and sanitary landfill in borings three through six.

• 1 Plaintiff initially contends that the trial court abused its discretion in admitting into evidence the sale of the Hank property as a comparable sale. In examining the comparability of this sale, we note that no fixed or general rule may be laid down which governs the degree of similarity that must exist between the property sold and that condemned to make evidence of the sale admissible. The admissibility of such evidence must be determined by the trial judge within his discretion and based on the facts and circumstances of each particular case. (City of Evanston v. Piotrowicz (1960), 20 Ill.2d 512, 522.) The supreme court has recognized that "similar" does not mean "identical," but means having a resemblance, and the properties may be similar for purposes of comparison although each possesses various points of difference; whenever there is a reasonable basis for comparison between the properties, evidence of the sale is not incompetent, and the dissimilarities between those properties, which are declared to the jury, would affect the weight and value of the testimony rather than its competency. City of Evanston v. Piotrowicz.

In the instant case, the Hank property was sold in April of 1972 for a price of $80,000. The property consisted of 13.3 acres and was located to the north of and immediately adjacent to the subject property; it has 425 feet of frontage along Milwaukee Avenue as compared with 91 feet for the subject property; and it is approximately six feet lower than the 11-acre subject property. The Hank property either abuts or extends into the Des Plaines River depending upon the shifting of the river, as does the subject property. Further, defendant's valuation witness testified that 10 of the 13.3 acres of the Hank property were located in the flood plain of the Des Plaines River as opposed to 3.67 acres of the subject property. Two acres of the Hank property were zoned commercial and the balance was zoned residential, whereas the entire subject property was zoned residential.

• 2 Plaintiff urges that the subject property contained a sanitary landfill whereas the Hank property was not shown to contain such a fill. Although the existence of the landfill might affect the suitability for construction on the subject property, there is no evidence of any substantial pollution potential as is urged by the plaintiff. Joseph Koenen could not give an opinion as to whether the landfill was polluting the Des Plaines River or whether it would do so in the future. Additionally, plaintiff has misconstrued the statements in an Environmental Protection Agency letter which analyzed the pollution potential of the site. The letter indicated that, based on the information supplied to the agency by Lake County, there is very little potential hazard of pollution. In any event, the differences between the two properties with regard to the landfill were adequately ...


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