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Dept. of Conservation v. Strassheim

OPINION FILED JANUARY 14, 1981.

THE DEPARTMENT OF CONSERVATION, PETITIONER-APPELLANT AND CROSS-APPELLEE,

v.

NATHALIE STRASSHEIM, TRUSTEE, ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



APPEAL from the Circuit Court of Lake County; the Hon. THOMAS R. DORAN, Judge, presiding.

MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

This is an appeal from the judgment of the circuit court of Lake County in a condemnation case, which awarded the defendants $37,500 for the land taken and $5,000 for damage to the remainder. Both sides appeal, the State contending the award is too high and the defendants contending it is too low. A brief statement as to the background of the case and the points developed at the trial will serve to delineate the issues raised on the appeal by both parties.

On August 24, 1978, the Department of Conservation of the State of Illinois filed a petition to condemn the east 13.99 acres of the defendants' property, which consisted of 27.7 acres of unsubdivided land, zoned agricultural. The defendants' property is irregularly sloped and is approximately 2,000 feet north of the point at which State Park Road (which is the north-south dividing line between Lake and McHenry Counties) turns at a right angle and goes east. The land is in close proximity to other land owned by the Department of Conservation and intended for development as part of the Chain O'Lakes State Park Conservation Area. It has a westerly boundary of approximately 747 feet, southerly boundary of approximately 1308 feet, an easterly boundary of 1,044 feet and northerly boundary of 1,057 feet. It is improved with a four-room brick house in the northwest corner of the property. Toward the east, the land slopes downward and the easterly part is swampy and part of it is covered with water. The northeast corner of the property, about 8 acres, is in the flood plain.

After the State had filed its petition to condemn, the defendants filed a cross-petition alleging damage to the remainder and filed a "Notice of Defendants' Election to Open and Close." The trial court granted the defendants' motion to open and close, and the trial proceeded accordingly.

Before the trial, the defendants also presented to the court certain exhibits — Exhibits 1, 2 and 3 — which the defendants asked to be admitted into evidence. Exhibit 1 was an outline of the defendants' property showing the part to be taken and the remainder. Exhibit No. 2 was termed a "Land Division Feasibility Study," purporting to show the feasibility of dividing the property into five parcels or lots of approximately 5 acres each. Exhibit No. 3 was similar to exhibit No. 2; however, it was not offered at trial. These exhibits had been prepared about one month previous to the trial and were obviously prepared for the purpose of influencing the jury's award of damages. This was conceded by defense counsel at oral argument.

Both sides presented witnesses who testified as to the fair cash market value of the property. Charles Moskal, a builder and property manager, testified that in his opinion the highest and best use of the property was for single-family lots. He set the value of the whole tract on the date of the condemnation petition at $225,000 with the value of the part taken being $70,000 and the value of the remainder being $130,000 and damage to the remainder after the taking being $25,000.

Witness Harrison testified that the highest and best use of the property was for single-family residential purposes and he valued it before the taking at $255,000, with $64,500 as the value of the part taken, $190,500 as the value of the remainder and $25,000 as the damage to the remainder. He said the property could be divided only into two parcels after the taking whereas five lots would have been possible before the taking.

Paul Marchesi testified that the eastern portion of the property was a bog area and part of it was waist high in water at the time he visited the property.

The Department of Conservation called the deputy director of the Lake County Building and Zoning Department for the purpose of giving his opinion on the feasibility of using the property as depicted in the defendants' land division feasibility study. (Exhibit No. 2.) His testimony was objected to by defense counsel and the objection sustained as to his opinion that such development was not feasible under the Lake County Subdivision Control Ordinance. The basis of sustaining the objection was that the exhibit was not intended to show compliance with the Lake County Subdivision Control Ordinance, and it was not intended to be a plat of subdivision.

Mr. James Weber testified as a landscape architect for the Department of Conservation that the purpose of acquiring the land in question was to use it as a State nature preserve, in line with the State's master plan for development of the Chain O'Lakes State Park.

Louis Pomerantz, called as a witness for the Department, testified he lived about 2 1/2 miles from State Park Road and that he had bought his 17.85-acre parcel in October 1978 with a brick and frame house on it with all land being usable for $185,000.

Francis Hardy, employed by the State as a nature areas' biologist, testified regarding plant life and the presence of endangered species of plants on the condemned portion of the property.

A real estate appraiser and licensed broker, Thomas Peters, testified for the State that in his opinion the fair cash market value of the whole property at the time of taking was $175,000, the value of the acquired property as part of the whole was $15,400, the value of the remainder as part of the whole was $159,600 and there was no damage to the remainder. He also gave his opinion that it was not economically feasible to divide the property into five building sites, as depicted in the defendants' land division feasibility study.

Howard Katzenberg, another valuation witness for the State, testified that in his opinion the highest and best use of the land was for single-family residential purposes and gave a valuation of $155,000 for the property before the condemnation, a value of $16,800 ($1,200 per acre) for the part taken, a value of $138,212 for the remainder as part of the whole, and he also was of the opinion that there was no damage to the remainder by the taking. He also was of the opinion that it was not feasible to divide the land into five lots previous to the taking. He also testified to certain comparable sales in the area. In the course of cross-examination, Katzenberg was impeached by defense counsel. Katzenberg was asked whether he had ever made any written appraisals for banks in the area, and he answered "yes." At that point defense counsel introduced a prior deposition at which, when asked the question whether he had ever made any written appraisals for banks, Katzenberg had answered "no." This was the basis for an instruction (Illinois Pattern Jury Instructions, Civil, No. 3.01 (2d ed. 1971) (hereinafter IPI Civil)) on the credibility of a witness who makes a prior statement inconsistent with his in-court testimony. Defense counsel made use of this instruction in impeaching the credibility of the witness Katzenberg in his closing argument. Katzenberg was also asked whether, in making his appraisal of the value of the property as a whole, he had, as one of the factors he relied on in making his judgment, considered the fact that the property was surrounded on the north, south and west by Department of Conservation land. The answer was that that was one of the factors considered but the witness said that the fact ...


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