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Dept. of Transp. v. La Salle Nat'l Bk.

OPINION FILED DECEMBER 21, 1981.

THE DEPARTMENT OF TRANSPORTATION, PLAINTIFF-APPELLEE,

v.

LA SALLE NATIONAL BANK, TRUSTEE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. BRUCE R. FAWELL, Judge, presiding.

JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

In this eminent domain proceeding, we allowed an interlocutory appeal by permission, pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308), from an order of the circuit court of Du Page County denying a motion by the defendant-property owners to set a new valuation date for the subject property. The following question of law is presented for resolution:

"Is the Department of Transportation's action of filing a petition to condemn on June 11, 1979, to acquire 21 acres and all access rights to the remainder of the property, and subsequently on April 20, 1981, amending its petition to condemn deleting the taking of all access rights while retaining its request for the 21 acres, equal to the filing of a new petition to condemn requiring a new valuation date for the 21 acres"?

We answer the question in the negative and accordingly affirm the order of the circuit court.

The Department of Transportation of the State of Illinois (Department) commenced this proceeding on June 11, 1979, by filing a petition to condemn certain property interests of defendants for the purpose of constructing a portion of a limited-access Federal highway. Defendants, La Salle National Bank, as trustee; Crow Hamilton #2, a partnership; Trammell Crow Management Company, Chicago, Inc., a corporation; and Itasca Associates #3, a partnership, own a 274-acre tract of land in Itasca in Du Page County which is bounded on the north by Devon Avenue, on the south by Thorndale Avenue, on the east by Arlington Heights Road and on the west by Interstate 290. The Department's petition sought to take 21 acres from the southeast portion of the 274-acre tract extending from east to west along approximately one-half of the property's southern boundary on Thorndale Avenue. The petition also would have permitted the Department to acquire defendants' access rights from Thorndale Avenue to the remainder of the property.

The Department thereafter sought leave to amend its petition to delete the taking of the access rights to the property from Thorndale Avenue. It stated it no longer needed to foreclose access to the new roadway from defendants' property as the road was not to be a limited-access freeway. On April 20, 1981, over defendants' objections, the trial court allowed the Department to so amend its petition.

Defendants thereupon moved for a finding of abandonment in which they stated the amendment by the Department constituted a new petition entitling defendants to have their property valued for purposes of just compensation at its prevailing market value as of April 20, 1981. An affidavit by Thomas Collins, an appraiser, was offered in support of defendants' motion; he had appraised the property as of June 11, 1979, and found the fair cash value of the 21-acre tract to be $1,972,865 with damage to the remaining 253 acres of $12,999,335. He considered that the major cause of the damage to the remainder resulted from the taking of the access rights to the property from Thorndale Avenue. Defendants argued a loss of approximately 13 million dollars arose from the Department's decision to forego acquisition of the access rights and this evidenced the magnitude of the difference between the initial petition and the petition as amended. They concluded it became essentially a new petition when amended and the valuation date should therefore be advanced.

The trial court granted defendants' motion insofar as it sought a finding that the condemning body had abandoned its request for the access rights it originally sought. However, the court ordered that the valuation date upon which just compensation would be determined was to remain June 11, 1979, when the Department had filed its original petition. The trial court thereafter found pursuant to Supreme Court Rule 308 that a question of law was presented as to which there was substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation. On application, we allowed defendants' interlocutory appeal for consideration of the issue presented.

Defendants contend that the amendment of the Department's original petition by deletion of the taking of defendants' access rights while still seeking to take the same 21 acres sought in the original petition was tantamount to the filing of a new petition. They assert that they will be deprived of 13 million dollars for damages to the remainder of their property by virtue of the Department having abandoned its request for defendants' access rights and, further, that in reliance on the Department's original petition to take their access rights defendants constructed an 80-million-dollar hotel and office project on a portion of the remainder and made formal plans for the balance of their property.

The fair cash market value of property in an eminent domain proceeding is "determined * * * as of the date of filing the petition to condemn." (Ill. Rev. Stat. 1979, ch. 47, par. 9.7.) The date-of-valuation rule as now statutorily enacted is consistent with the prior long-standing view in Illinois that the value of land taken pursuant to the power of eminent domain and the value of the remainder which is damaged although not taken is that existing on the date of the filing of the condemnation petition. (Department of Public Works & Buildings v. An Association of Franciscan Fathers (1977), 69 Ill.2d 308, 314, 371 N.E.2d 616, 618; Chicago & State Line Ry. Co. v. Mines (1906), 221 Ill. 448, 457, 77 N.E. 898, 901; South Park Commissioners v. Dunlevy (1878), 91 Ill. 49, 54.) The general rule will not be altered merely to accommodate fluctuations in the market value of the property or to take improvements to the property into consideration. (See, e.g., City of Chicago v. Farwell (1918), 286 Ill. 415, 121 N.E. 795.) Prevention of unjust enrichment to and unfair penalization of the property owner is the primary reason the time of filing the petition to condemn has been adhered to in this State as the valuation date. Department of Transportation v. Shaw (1976), 36 Ill. App.3d 972, 982, 345 N.E.2d 153, 161, aff'd in part, rev'd in part on other grounds (1977), 68 Ill.2d 342, 369 N.E.2d 884.

Defendants contend an exception to these general principles has evolved where the condemning body has amended its original petition in such a manner it can be said a new petition has effectively been filed and that the time of the amendment is then considered to be the new valuation date. Defendants rely upon three cases in support of their argument.

In Lieberman v. Chicago & South Side Rapid Transit R.R. Co. (1892), 141 Ill. 140, 30 N.E. 544, the supreme court considered whether it was error to limit evidence of value of the condemned property offered at trial to the date of the filing of the original petition when nearly two years later the petition had been amended as to the description of the property to be condemned. It was there stated:

"[W]e think it to be sufficiently evident that said amendments were in the direction of giving a fuller and more certain description of said property and not by way of substitution of one parcel of land for another. * * * [A]n amendment in the direction of giving a fuller, or even a more accurate description, so long as there is no attempt to substitute other property for that originally described, can not be held to be tantamount to the filing of a new petition, so as to change the date in respect to which the compensation should be estimated." (Emphasis added). 141 Ill. 140, 150-51, 30 N.E. 544, 548.)

The court adhered to the general rule by affirming the exclusion of evidence directed to a valuation at a time other than the ...


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