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Lake County Forest Preserve v. O'malley

OPINION FILED MAY 28, 1981.

LAKE COUNTY FOREST PRESERVE DISTRICT, PLAINTIFF-APPELLEE,

v.

EDWARD O'MALLEY ET AL., DEFENDANTS-APPELLANTS.



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

MR. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

This is an appeal by defendants, Joseph J. Drobnick and Jerome P. Drobnick, from a jury verdict awarding them and other named defendants at trial $11,000 as compensation for the condemnation by Lake County Forest Preserve District, plaintiff, of .29 acres of property located in North Chicago, Illinois.

The subject premises are vacant property on the northeast corner of the intersection of 14th Street and Greenbay Road in the City of North Chicago and were zoned R3, a single-family residential district, at the time the petition to condemn was filed by the plaintiff against the defendants as owners. The premises are located at the intersection of two four-lane roads, and have access to water across the street while the nearest sewer hookup is some 2500 feet away. The physical characteristics lend themselves to a commercial type of development, and the rezoning of several nearby properties indicates a commercial trend. A zoning change would be necessary for commercial development. However, even with commercial zoning, the immediate potential development would still be limited since a city sewer hookup is not available and city ordinances restrict the use of septic fields for small lots.

At trial the plaintiff presented two expert witnesses who gave opinions on their valuation of the subject premises. William C. DeBruler, a real estate broker and appraiser, testified that the value of the property was $8,300, while Herbert Harrison, a land-use consultant and appraiser, gave the opinion that the value was $8,500. To the contrary, defendants Joseph Drobnick and Jerome Drobnick, both licensed realtors, testified respectively that the value was $70,000 and $75,000.

The plaintiff introduced evidence of a contract to purchase 1.8 acres of vacant property several blocks from the subject property at a price of $38,000. Also, having been called under section 60, Joseph Drobnick admitted entering into a contract with Frances Martinelli to purchase a vacant lot approximately one block from the subject premises for $6,500, and entering into a contract with John H. Geddeis to purchase another vacant lot several hundred feet from the subject premises for $4,500. In addition, on cross-examination of Joseph Drobnick during the defendants' case, the State elicited that on May 10, 1976, four days prior to the date the petition to condemn was filed, Joseph Drobnick offered to purchase the subject premises from the owner at that time for $10,000. The defendants introduced evidence that property located about one mile from the subject premises was sold by John Sedej and his wife to Union Oil of California in 1969 for $70,000. Cross-examination revealed that the property was zoned for business and commercial use and had sewer. The trial judge refused defendants' request to admit two other comparable sales of property. One was rejected due to a lack of sufficient similarity with the subject premises, and the other was rejected on the basis it was not listed on the defendants' comparable disclosure list. The jury was taken to view the subject premises during the course of the trial.

Later, during closing argument, counsel for plaintiff made the following statement to the jury concerning the valuation testimony of Joseph and Jerome Drobnick:

"MR. TONIGAN: Now Mr. Joseph Drobnick got up here on the stand and I will admit he is a great talker. He is a salesman, both of these guys are. In fact, from the date one of the jury view to today they are trying to sell you a piece of property. [Sic.] Joe and Jerome Drobnick are up here telling you that the world is a fool. We buy —

We buy wholesale and we make a buck in retail. Everyone else is the dummy and we are the smart guys. Well, I think they want you — want to do the same thing with you."

Counsel for defendants made a general objection to the argument which the court overruled.

Also in closing argument, counsel for plaintiff made reference to Jerome Drobnick's valuation testimony of $70,000 for the subject premises and made the following calculation: "Jerome P. Drobnick came in and testified that the value of the property was seventy thousand dollars. Be ready for this. That is a hundred and ninety thousand dollars per acre." Counsel for plaintiff also made numerous references to valuation testimony of other witnesses and made similar calculations based on a one-acre lot. Counsel for defendant repeatedly objected to the calculations as being violative of the unit rule of valuation since the subject parcel was less than one acre. The court overruled these objections.

Defendants allege the following as basis for reversal: (1) the trial court abused its discretion by refusing to admit evidence of defendants' comparable sales (2) the trial court erred in admitting evidence of defendants' offer to purchase the subject parcel, (3) the statements made by counsel for plaintiff during closing argument appealed to the jurors' self-interest and therefore deprived defendants of a fair trial, (4) the statements made by counsel for plaintiff during closing argument violated the unit rule of valuation, and (5) the jury verdict of $11,000 was the result of passion or prejudice. We turn first to the question of the admissibility of the defendants' comparable sales.

• 1 The first so-called comparable offered by defendants was the sale of a vacant lot from the First National Bank of Waukegan to the Lexington House Franchise Co. for the price of $85,000. The record shows that the lot is located in Waukegan, Illinois, and is zoned for high-density residential use. The trial court properly exercised its discretion in excluding this evidence since the subject premises are located in North Chicago and zoned differently than the offered comparable.

Although the Illinois Supreme Court has held that the existence of zoning dissimilarities does not per se render evidence of the sale incompetent (City of Evanston v. Piotrowicz (1960), 20 Ill.2d 512, 522, 170 N.E.2d 569), the same court also stated that no universal rule could be laid down to govern the degree of similarity that must exist between the properties sold and those condemned to make evidence of the sales admissible. (20 Ill.2d 512, 522-23, 170 N.E.2d 569.) It is a fundamental principle of eminent domain law that the admissibility of comparable sales in each case rests within the sound discretion of the trial judge. Department of Public Works & Buildings v. Klehm (1973), 56 Ill.2d 121, 125, 306 N.E.2d 1, cert. denied sub nom. Romano v. Department of Public Works & Buildings (1974), 417 U.S. 947, 41 L.Ed.2d 667, 94 S.Ct. 3072.

• 2 It is also well established that the trial judge, in making his ruling, should balance the usefulness of the evidence of the comparable sales against the possibility of confusing the jury with collateral issues. As the court in Forest Preserve District v. ...


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