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05/05/87 the People Ex Rel. v. Bernard B. Birger Et Al.

May 5, 1987

THE PEOPLE EX REL. DEPARTMENT OF TRANSPORTATION, PETITIONER-APPELLANT

v.

BERNARD B. BIRGER ET AL., RESPONDENTS-APPELLEES (JOHN W. LESKERA ET AL., RESPONDENTS)



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

507 N.E.2d 1321, 155 Ill. App. 3d 130, 107 Ill. Dec. 952 1987.IL.587

Appeal from the Circuit Court of Madison County; the Hon. Nicholas G. Byron, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE KARNS delivered the opinion of the court. JONES and KASSERMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

The Department of Transportation of the State of Illinois (the Department) appeals from a judgment of the circuit court of Madison County awarding the Birgers the sum of $165,882 as additional just compensation for the taking and damaging of their property. We affirm.

The Department filed a petition for condemnation seeking fee simple title to a parcel of land held in trust by Bernard B. and Marguerite J. Birger (the Birgers). The property taken consisted of 47.65 acres, out of a total of 115.174 acres owned by the Birgers, located in the northwest quadrant of the intersection of Illinois Route 157 and Interstate 55/70 within the city limits of Collinsville, Illinois.

Witnesses for the Birgers testified the value of the property taken ranged from $1,024,500 to $1,906,000, with damages to the remainder ranging from $0 to $506,400. The Department's witness testified the value of the property taken was $455,000 with no damage to the remainder. The jury returned a verdict of $1,143,600 for the property taken and $22,282 as damage to the remainder for a total of $1,165,882. The circuit court entered judgment upon the verdict for the sum of $165,882 as additional compensation over the preliminary just compensation awarded in an earlier "quick take" proceeding.

On appeal, the Department argues the trial court erred in denying the motions to strike the testimony of the Birgers' valuation witnesses. The Department contends these witnesses based their valuation opinions upon improper factors, including noncomparable sales prices and speculative future developments in the area. The Department concludes the jury was therefore misled as to the proper value of the property taken and, because the jury was so misled, a new trial is required. The Department further argues because of additional alleged errors occurring during the course of the trial, the verdict was a result of passion or prejudice or a clear and palpable mistake. We disagree.

The owner of property condemned for public use is entitled to just compensation for the taking of his land. (E.g., Department of Public Works & Buildings v. Hufeld (1966), 68 Ill. App. 2d 120, 127, 215 N.E.2d 312, 316.) Just compensation is determined by looking to the fair market value of the property for its highest and best use on the date of the filing of the condemnation petition even if the land is not being put to that use at the time of the filing. (E.g., Forest Preserve District v. South Holland Trust & Saving Bank (1976), 38 Ill. App. 3d 873, 876, 349 N.E.2d 689, 692. See also City of Benton v. Odom (1984), 123 Ill. App. 3d 991, 995, 463 N.E.2d 785, 788.) Both parties have the right to adopt their own theory as to the highest and best use of the land taken. (E.g., Department of Public Works & Buildings v. Roehrig (1976), 45 Ill. App. 3d 189, 196, 359 N.E.2d 752, 760; Department of Business & Economic Development v. Pioneer Trust & Savings Bank (1976), 39 Ill. App. 3d 8, 11, 349 N.E.2d 467, 471.) Fair market value, in turn, is the amount of money which a willing buyer under ordinary circumstances would pay to a willing owner in a voluntary sale, neither being under any obligation to buy or sell. (E.g., Department of Public Works & Buildings v. Oberlaender (1969), 42 Ill. 2d 410, 415, 247 N.E.2d 888, 892; Department of Business & Economic Development v. Pioneer Trust & Savings Bank (1976), 39 Ill. App. 3d 8, 10, 349 N.E.2d 467, 470.) Fair market value usually is determined in part by looking to comparable sales of land based on similarities in locality, character, time, proximity, market conditions, improvements, and modes of payment. See, e.g., People ex rel. Director of Finance v. YWCA (1979), 74 Ill. 2d 561, 570, 387 N.E.2d 305, 310.

The parties here agree the highest and best use of the condemned property is for commercial development. The parties disagree, however, as to the evidence and factors to be considered in determining the value of the land.

The determination of whether a sale of land is a comparable sale and is admissible into evidence rests within the sound discretion of the trial court. (E.g., Department of Business & Economic Development v. Pioneer Trust & Savings Bank (1976), 39 Ill. App. 3d 8, 12, 349 N.E.2d 467, 472.) While it is generally true that an expert's opinion based upon improper elements is incompetent and should be excluded or stricken upon proper motion (see Department of Transportation v. Bouy (1979), 69 Ill. App. 3d 29, 38, 386 N.E.2d 1163, 1169), errors in rulings on the admissibility of evidence do not necessarily require reversal. Forest Preserve District v. Kelley (1979), 69 Ill. App. 3d 309, 314, 387 N.E.2d 368, 373.

The Department specifically takes issue with two of the valuation witnesses' selections of "comparable sales." The Department argues most of these sales were not arm's length transactions but rather were between related parties as part of an assemblage of land (individual parcels of land acquired to form a large, unified tract) for a specific, definite development, namely Eastport Plaza. After the first purchase in an assemblage sale, the buyer needs adjacent property more than the average buyer in an open market. The Department believes the property would therefore acquire a "special value" to the assemblage buyer, reflecting his "special need," which would color the purchase price of the land. The property values were further distorted, according to the Department, because certain individuals involved in the sale of property between Hilton and Eastport Plaza in particular had interests in both the selling and buying entities. The Department also complains of reference made to a non-cash deal or a trade of land involving Eagle Bank. Eagle Bank purchased a parcel of land consisting of 7.95 acres but later deeded back all but 1.8 acres. The Department argues the original sale therefore was not really a cash sale, but a "deal" that involved later transactions in return for the cash paid, further distorting the value of the property. The last sale the Department takes issue with occurred after the filing of the petition for condemnation. The Department argues the Birgers failed to establish that the condemnation project did not influence the price of this later sale. The Department concludes that because all of these sales were not true comparables, the valuation witnesses relied on improper factors in arriving at a value for the Birgers' property and therefore their testimony should have been stricken.

In general, evidence of a comparable sale gives the jury the benefit of an objective market evaluation against which it can consider an appraiser's valuation of the land taken. (Department of Public Works & Buildings v. Klehm (1973), 56 Ill. 2d 121, 125, 306 N.E.2d 1, 4, cert. denied (1974), 417 U.S. 947, 41 L. Ed. 2d 667, 94 S. Ct. 3072.) Exchanges of land, on the other hand, offer no objective market value for consideration and are therefore generally inadmissible. (56 Ill. 2d 121, 125-26, 306 N.E.2d 1, 4, cert. denied (1974), 417 U.S. 947, 41 L. Ed. 2d 667, 94 S. Ct. 3072.) Likewise, evidence of assemblage sales and other "special value" property (such as property specifically bought to be used for expansion of an adjoining business) is not usually admissible. Such sales may not reflect the true values of the land because the buyer may be forced to pay a premium to acquire that ...


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