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05/05/88 Oak Brook Park District, v. Oak Brook Development

May 5, 1988

OAK BROOK PARK DISTRICT, PLAINTIFF-APPELLANT

v.

OAK BROOK DEVELOPMENT COMPANY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

524 N.E.2d 213, 170 Ill. App. 3d 221, 120 Ill. Dec. 448 1988.IL.680

Appeal from the Circuit Court of Du Page County; the Hon. Anthony M. Peccarelli, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. INGLIS and HOPF, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Plaintiff, Oak Brook Park District (Park District), appeals from the judgment of the circuit court of Du Page County, entered upon a jury verdict, finding the amount of just compensation due defendants (owners) for the taking of a 32.7-acre tract of land to be $17,063,196 and damages to the remaining .8 acre not taken to be $278,752. The Park District's motion for a new trial was denied by the trial court.

The issue at trial was the value of the subject property on April 9, 1984, taken by the Oak Brook Park District from the defendants under the Park District's power of eminent domain and the amount of damages, if any, to the remaining .8 acre of land which was part of a 33.5-acre tract of which the Park District condemned 32.7 acres. The plaintiff presented three experts who testified as to the value of the subject property and any damages to the remainder. Defendants presented one expert on the issue of value of the subject property and damages to the remainder. Plaintiff argued that the highest and best use of the subject property was residential, and, as such, its value was $1,700,000. Plaintiff also argued that since the highest and best use of the property was residential, the remainder, as residential, was only damaged between $0 and $19,200.

Defendants argued that, although the property had been zoned residential since 1978, there was a reasonable probability of rezoning the subject property to a commercial use, and the highest and best use of the property was a commercial use, and the value of the subject property under this highest and best use was approximately $17 million. Defendants argued that the remainder, like the subject property, had a highest and best use as commercial property. Since the taking would isolate the remainder and prevent it from being sold as part of the 32.7 acres taken and since the remaining .8 acre was not very marketable as commercial property, separate from the 32.7 acres to which it was attached, defendants argued the remainder was damaged in the amount of $278,752. This figure was based on defendants' expert's opinion that the value of the whole contiguous tract was approximately $520,000 per acre.

Plaintiff, in addition to disputing defendants' theory of highest and best use, argued there was no reasonable probability of rezoning to permit defendants' claimed highest and best use. The jury returned a verdict in favor of defendants, adopting the identical value of the subject property as testified to by defendants' expert appraisal witness. In addition, the jury also found the remainder to have been damaged in the exact amount to which defendants' expert appraisal witness testified.

On appeal, plaintiff raises numerous issues. Plaintiff claims the trial court erred in the following regards: (1) in its rulings concerning numerous evidentiary issues on the admissibility of certain evidence relevant to value and the issue of the reasonable probability of rezoning; (2) in its instructions to the jury; (3) in overruling plaintiff's objection to defendants' final argument; and (4) that the verdict was a result of passion and prejudice caused by defendants' improper final argument.

A detailed description of the subject property and surrounding area is not necessary to our Disposition of this appeal. However, a history of the actions and relations surrounding the subject property is required to understand plaintiff's arguments. The subject property is located at the northeast corner of Route 83 and 31st Street in Oak Brook. The subject property consists of 33.5 acres of unimproved land of which 32.7 acres was taken by plaintiff under its power of eminent domain. The valuation date at trial was April 9, 1984. At that time defendants were the owners of the subject property. The interest of defendants in the subject property arose by way of the actions of Paul Butler and through the will of Paul Butler, upon his death.

Plaintiff sought to introduce evidence of the actions of Paul Butler and the Village of Oak Brook board of trustees concerning the subject property in 1978. Plaintiff argues on appeal that this evidence was offered on the issue of the reasonable probability of rezoning. The disputed evidence concerned several facts and circumstances. In 1977, Paul Butler's Company (Butler Company) sought the Village of Oak Brook's approval for a proposed shopping center development on the property. At that time the property was zoned B-1, which would allow a shopping center or offices. At the same time the Butler Company also owned a 75-acre parcel which contained the company's general headquarters and was referred to at trial as the GHQ property. The subject property was bounded to the east by Jorie Boulevard. Directly to the northeast of the subject property across Jorie Boulevard was the GHQ property. In 1977, the Butler Company sought to have the GHQ property, which was mainly zoned residential, rezoned to allow a commercial use (ORA-3). The Butler Company wanted to sell the GHQ property to the McDonald's Corporation, which desired to build a combined office complex and training, research and hotel project.

On January 12, 1978, the Village of Oak Brook rejected the application of the Butler Company and McDonald's to rezone the GHQ property from residential (R-1) to commercial (ORA-3). Sometime in late January or early February 1978, the Village of Oak Brook rescinded its rejection of the GHQ rezoning. On April 17, 1978, Paul Butler caused a declaration of covenants and restrictions to be executed which purported to restrict the subject property to residential uses only. On May 4, 1978, the "Village Comprehensive Plan" was amended by the board of trustees to show the subject property zoned residential (R-3), and the GHQ property zoned as commercial (ORA-3), which permitted the McDonald's development presently in existence. On May 31, 1978, the board of trustees of the Village of Oak Brook passed the relevant ordinances effectuating the rezoning of the subject property from commercial to residential (B-11 to R-3) and the GHQ property from residential to commercial (R-1 to ORA-3) as reflected in the Village's comprehensive plan of May 4, 1978. On September 8, 1983, after the death of Paul Butler, a document purporting to be a release of the covenants and restrictions was filed by the children of Paul Butler who were the beneficial owners of the subject property at the time the release was filed. I. EVIDENTIARY RULINGS

First, we address plaintiff's contentions directed at the trial court's rulings on several motions in limine filed by defendants concerning the 1978 covenants and restrictions and their purported release, as well as certain zoning ordinances of the Village of Oak Brook. Defendants filed a motion in limine to exclude from evidence at trial the covenant and restrictions and the release on the grounds that they were not relevant to or probative of the issue of the value of the subject property on April 9, 1984. Defendants' motion also sought to exclude any extrinsic evidence as to the intent of the parties who executed these documents. The covenant and restrictions had been executed by Paul Butler as president of the Butler Company as well as Chicago Title & Trust Company as trustee under a trust of which Paul Butler was the beneficiary. The release had been executed by his children, and the Butler Company by Jorie Ford Butler. The trial court, after extensive argument, denied the motion as to the documents but granted the motion in part as to the intentions of the parties who executed the documents. The trial court did not state its reasons for the ruling but did state that plaintiff may argue the intentions of the parties at trial from surrounding facts and circumstances but no direct or indirect evidence as to the intent of the parties who executed the documents would be allowed.

Plaintiff argues on appeal that the trial court's ruling was error and prejudiced its case. Plaintiff argues that this ruling prevented any proof as to the binding effect of the covenants upon Paul Butler and his successors and any proof of reliance by the Village of Oak Brook upon these covenants in their actions rezoning the subject property in 1978. Plaintiff argues this ruling barred proof of the surrounding facts and circumstances which existed in 1978. The record, however, does not support plaintiff's characterization of the trial court's ruling.

The trial court's ruling concerned defendant's motion in limine to exclude the covenants and restrictions as not relevant to the issue of value. Plaintiff succeeded in convincing the trial court that these documents were relevant and that ruling is not before us on review. However, the trial court did exclude extrinsic evidence of the intent of the parties who executed these documents. The documents at issue were clear and unambiguous. Plaintiff, while arguing the relevance of the documents, stated: "The face of the documents say [ sic ] who the restrictive covenant runs to and the intention of the parties is absolutely crystal clear. It can't be denied from the face of it." The trial court properly excluded extrinsic evidence as to the intent of the parties who executed the documents, since the documents were clear and unambiguous. Where a contract is clear and unambiguous, the parties' intent is to be drawn only from the words used. Scheduling Corp. of America v. Massello (1983), 119 Ill. App. 3d 355, 456 N.E.2d 298.

BOARD MINUTES

Plaintiff contends the trial court erred in granting defendants' motion in limine No. 1 which sought to bar the admission into evidence or testimony about all minutes of any public body in Oak Brook relating to any zoning action or comprehensive plan because such minutes collaterally attack duly enacted ordinances and/or reflect the motives and reasons behind the vote of individual board members. Individual member's motives in enacting an ordinance, defendants argued, are not competent evidence as to the motives of the board as a body. The motion further argued that since the individual board members could not testify regarding their motives or reasons for enacting the zoning classification, plaintiff could not indirectly place before the jury such matters. Plaintiff contends that the trial court's ruling prevented: (1) proof that the GHQ rezoning from residential to commercial was done only with the assurance that the instant property would remain residential; and (2) proof that the GHQ rezoning did not affect growth patterns since the instant property was rezoned from commercial to residential at approximately the same time, thus, showing the actual nonresidential use in the area was increased only slightly in 1978. Plaintiff argues that such evidence is admissible on the issue of the probability of rezoning the subject property on April 9, 1984.

The minutes at issue were the transcription of one trustee's opinion as to why the board of trustees should vote to approve the GHQ rezoning in 1978. A zoning ordinance is a legislative act and courts lack the power to inquire into the wisdom of the ordinance or motives which prompted its enactment, with the exception that municipal ordinances may be impeached for fraud by persons injuriously affected thereby. (Anthony v. City of Kewanee (1967), 79 Ill. App. 2d 243, 223 N.E.2d 738.) Courts should look first to statutory language as the best indication of intent of the drafters, and where the statutory language is unambiguous, the court must enforce the law as enacted without considering other aids. (County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 485 N.E.2d 1076.) Further, when a statute enumerates certain things, that enumeration implies the exclusion of all other things. Roth v. Department of Public Aid (1982), 109 Ill. App. 3d 457, 440 N.E.2d 910.

A reading of ordinance No. S -- 408 of the Village of Oak Brook, which rezoned the GHQ property to permit the McDonald's development, establishes that the trial court did not err in its ruling. The ordinance was admitted at trial. The ordinance specifically mentions and incorporates the fact that the rezoning application was filed by McDonald's Corporation and the Butler Company. Further, section 2 sets out specific "statements and findings of fact" adopted by the president and board of trustees concerning the rezoning accomplished by ordinance No. S -- 408. This section specifically refers to the reasons and motives of the board of trustees in enacting the ordinance. There is no indication whatsoever within the language of this ordinance whichin any way shows the board of trustees based its decision on the covenants and restrictions which Paul Butler caused to be executed six weeks prior to enactment of the ordinance. In light of the clear and unambiguous language of the ordinance as well as the fact that the ordinance specifically states the board of trustees' findings as well as its motives, it was not error for the trial court to exclude extrinsic ...


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