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Lake Cty. Forest Preserve Dist. v. Bk. & T. Co.

OPINION FILED MAY 10, 1982.

LAKE COUNTY FOREST PRESERVE DISTRICT, PLAINTIFF-APPELLEE,

v.

THE BANK & TRUST COMPANY OF ARLINGTON HEIGHTS ET AL., DEFENDANTS-APPELLANTS.



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

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 28, 1982.

This is an appeal by the trustee of the beneficial owner of a tract of land condemned by the Lake County Forest Preserve District, from the judgment of the trial court finding the just compensation for the land taken to be $145,000.

The tract in question comprises approximately 9.4 acres of undeveloped land zoned as SE-Suburban Estate, in unincorporated Lake County lying 1329 feet along Lake-Cook Road. On the east side, it fronts on Schaeffer Road for a distance of 289 feet. It then jogs east for 547.8 feet, north for 150 feet, then continues on east about 765 feet, thence south approximately 436 feet to Lake-Cook Road. At the time of the condemnation petition the land was being used for farming. There were no buildings on it.

Generally, the northern boundary of the village of Arlington Heights is along Lake-Cook Road. In 1975, Arlington Heights annexed a parcel of land in Lake County which was a part of a development known as Terramere which lay mostly in Cook County. The western edge of the Terramere Subdivision in Lake county is adjacent to the subject property. Otherwise, the village of Arlington Heights is bounded on the north by the center line of Lake-Cook Road.

Before trial, a preliminary question arose. The Bank & Trust Company of Arlington Heights (hereinafter defendant) made a motion for a preliminary hearing to have the trial court hear and determine whether the owner might present testimony as to value based on the reasonable probability of a future annexation and rezoning of the property. This was objected to by the Lake County Forest Preserve District (hereinafter District) on the ground it was procedurally incorrect and that such a motion should be made at the trial stage after the jury was sworn. The trial court, while acknowledging that usually the question of value based on the probability of rezoning is heard out of the presence of the jury after the trial begins (see Lombard Park District v. Chicago Title & Trust Co. (1968), 103 Ill. App.2d 1), allowed the motion to consider this question before the start of the trial.

• 1 While it is well settled that the landowner in a condemnation case has the right to base his valuation on a use established by evidence showing a reasonable probability of rezoning, the burden of proof is on the landowner to establish by evidence that there is a reasonable probability of rezoning to that use.

The defendant in this case is contending for a valuation based on a commercial use, which would involve not only a rezoning but preliminary to that an annexation by Arlington Heights.

Due to the difference in valuation per acre between the residential and commercial use testified to by the witnesses ($20,000 as against $50,000), it was desirable for the defendant to establish the reasonable probability of a commercial use.

In the separate preliminary hearing, the trial court heard a number of witnesses on the defendant's behalf. Alan Sander, director of public works for Arlington Heights, testified that in certain areas of Arlington Heights there were wells and septic tanks, also that a subdivision of Arlington Heights known as Woodland Heights, which had a petition for annexation pending before the Arlington Heights council, might obtain sewer connections to a small private utility known as Ferndale Heights Utility Company. This evidence was necessary because there was no water or sewer available at the site in question.

Ayoub Talhami, an engineer in charge of permits for construction of sanitary sewers for the Metropolitan Sanitary District of Chicago (hereinafter MSD), testified regarding the possibility of MSD serving the property in question. From his testimony it appeared that as a general rule MSD does not serve areas outside of Cook County. He referred to this as an "unwritten" policy. From his testimony and a summary of the policy Talhami had previously prepared for MSD regarding past treatment of applications for service outside of Cook County, it appeared that exceptions to this general rule were few in number and had been made very selectively. The service of MSD appears to have been extended outside of Cook County only to territories which were annexed to Cook County municipalities already served by MSD and only after considerable negotiations. Talhami testified that in the instant case there would first have to be an annexation to Arlington Heights and then a decision made by MSD as to the practical possibility and the desirability of MSD extending its sewer lines to the site.

Joseph Kesler, Arlington Heights' city planner, testified that he was familiar with all petitions for annexation to Arlington Heights which had been granted within recent years. He submitted a map showing a number of annexations to Arlington Heights which had been accomplished within recent years. He testified that the area north of Dundee Road (the area of the subject property) "was not subjected to any changes for a number of years." He testified that Russell Ray, beneficial owner of the property in question, had approached him in the summer of 1978 indicating an interest in having the property annexed to Arlington Heights, the purpose of this testimony, apparently, being to indicate that Ray's desire to annex to Arlington Heights had preceded the condemnation, thus was not induced by that possibility.

Norman Toberman, consulting engineer, testified regarding drainage and sewer problems at the site. He testified that a creek runs through the property and it would be necessary to add fill in order to install a septic system. He did not consider disposing of waste only through a septic system but theorized as to the possibility of an on-site disposal system in addition to the septic system. His testimony assumed a commercial use of the site. Toberman conceded he had had no actual experience with the one-site disposal system he testified about and knew of no instance where such a system was being used in Cook or Lake Counties. His testimony as to the theoretical disposal of waste on-site was stricken as being too speculative.

Joel Michalik, a consulting engineer employed by Ferndale Heights Utility Company, testified as to the possibility of that utility furnishing service to the property. This is a small private utility located in Cook County and serving Cook County residents. The purpose of Michalik's testimony was to indicate the probability that Ferndale Utility would extend service to the site if MSD did not. He was allowed to express his opinion that Ferndale Utility had a reasonable capacity to extend its sewer and water facilities to the subject property if so requested. Being only a consulting engineer for that utility, he was not allowed to express his opinion as to whether the utility would actually so extend its service. He testified that the cost of sewer extension would be $50,000 and the cost of the water connection would be $91,000. If the property was found to be low, it would be necessary to install a lift station at a cost of $50,000. It would also be necessary to obtain a certificate of public convenience and necessity from the Illinois Commerce Commission. After receiving this certificate, the sanitary sewer permit would be sent to MSD for review and approval. The water main extension permit would need to be sent to the Illinois Environmental Pollution Agency for its review and approval. It appears from Michalik's testimony that Ferndale Heights Utility Company had never extended its services ...


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