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09/12/88 the Department of v. Amoco Oil Company Et Al.

September 12, 1988

STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

AMOCO OIL COMPANY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

THE DEPARTMENT OF TRANSPORTATION ex rel. THE PEOPLE OF THE

528 N.E.2d 1018, 174 Ill. App. 3d 479, 124 Ill. Dec. 127 1988.IL.1364

Appeal from the Circuit Court of Du Page County; the Hon. William E. Black, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. DUNN and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

This appeal follows a jury verdict in favor of defendant, Amoco Oil Company (Amoco), in plaintiff's action to condemn a portion of Amoco's property abutting Illinois Route 83. The jury returned a verdict of $350,000. Plaintiff appeals after denial of its post-trial motion. Plaintiff argues that the circuit court erred by (1) denying enforcement of an agreement between the parties limiting the amount of compensation for Amoco's property; (2) admitting Amoco's valuation evidence of other sales without making a determination of their reliability and reasonableness; (3) permitting Amoco to introduce evidence of the legal interpretation of a zoning ordinance requiring connection to public utilities; and (4) excluding evidence of conduct by Amoco which constituted an admission as to the market value of the subject property. Plaintiff also argues that it was deprived of a fair trial by prejudicial comments made by Amoco's counsel during closing argument. We affirm.

On March 17, 1965, plaintiff, the Department of Transportation of the State of Illinois (Department), executed and published a document known as a freeway order designating Illinois Route 83 a freeway. The Department amended the freeway order in 1969 so as to include a portion of Route 83 near 35th Street in Westmont, Illinois, bordering the property which is the subject of this action. The amended freeway order reflected the Department's intention to limit access to the freeway. At the time of the designation, the subject property was vacant and unimproved. Amoco purchased the subject property on July 20, 1970, and requested a permit from the Department to construct driveways from the subject property onto Route 83. On March 10, 1971, the Department issued Amoco a document captioned "Temporary Freeway Permit" (permit). A copy of the permit is contained in the record and bears a document number of R71 -- 9629. The first page of that document identifies Amoco as the applicant, contains a blank space for provisos, and is signed by a representative of the Department. Also appearing on that page is the signature of William Ahlborn. Ahlborn's signature appears directly below text stating that the permit and its provisions are agreed to. Although Ahlborn's signature does not identify him as a representative of Amoco, the addresses listed for both Amoco and Ahlborn are identical. The remaining pages of the document contain a description of the intended construction and various conditions relating to that construction. The last page purports to authorize Amoco to construct two access driveways from the subject property onto Route 83. That page also contains a section subheaded "Freeway Clause," providing, in pertinent part:

"The petitioner [Amoco] understands that the above described entrance culvert and drives are within the limits of the freeway established on this highway by an order issued March 17, 1965 by the Department of Public Works and Buildings acting under authority conferred by existing legislation. It is further understood that the petitioner [Amoco] shall not claim additional damages by virtue of existence of the entrances described herein. It is also understood that this permit is accepted with the full understanding that any improvements constructed on the property after March 17, 1965 shall not be construed as increasing the value of right of access or right of way at such time as these rights are acquired for purpose of developing the freeway."

Amoco subsequently constructed a gasoline service station and repair facility on the subject property with two driveways permitting ingress and egress onto Route 83. Amoco also constructed two driveways allowing ingress and egress from the subject property onto 35th Street. Thirty-fifth Street does not have access onto Route 83. The station has been leased and operated by John Mantooth at all times pertinent to this action.

On March 10, 1986, the Department filed a complaint to condemn Amoco's access rights to Route 83 and subsequently moved for immediate vesting of those access rights. The circuit court assessed preliminary compensation for the condemnation at $164,400, and that amount was deposited with the Du Page County treasurer. On April 7, 1986, Amoco filed its cross-petition against the Department seeking damages. Thereafter, the trial court entered an order extinguishing Amoco's access rights to Route 83 and vesting control of that portion of Amoco's property with the Department. The Department closed Amoco's Route 83 access driveways and took possession in August 1986.

On November 26, 1986, the Department filed its motion for summary judgment seeking to enforce the freeway clause of the permit so as to limit the value of the access rights condemned to that which preexisted the permit. The circuit court denied the Department's motion after concluding that the freeway clause was unenforceable. In so ruling, the court stated that the Department's insistence on making Amoco's agreement to limit the value of its property a condition of the permit was an improper exercise of its powers as its motive was to depress the property's value and deprive Amoco of just compensation. The court entered an order in accordance with that ruling, and the case proceeded to trial.

Prior to trial, the parties filed a series of motions in limine. The Department moved to exclude evidence regarding the sale of certain service stations from Texaco Oil Company to Mobil Oil Company on the basis that those sales were not comparable since they were part of a bulk sale of 71 service stations. The Department also moved to bar testimony regarding the legal interpretation of a zoning ordinance requiring developments in the area of the subject property to be connected to public utilities. The court reserved its ruling on both motions before ultimately permitting the evidence to be introduced. Amoco moved to exclude testimony regarding an offer by Amoco to sell a nearby service station and an offer by Mantooth to purchase the subject property. Amoco also moved to exclude evidence of an injunction obtained by Mantooth, the lessee of the subject property, preventing Amoco's attempt to terminate his lease. The court granted both motions.

At trial, Mantooth testified that he leased the subject property from Amoco and operated the station since its construction in 1971. The station is equipped with three gasoline-pump islands and four service bays. The station's business consists of the sale of gasoline and automotive accessories as well as towing and car repair. Prior to the condemnation, gasoline sales made up 70% to 75% of the station's business volume. Gasoline sales fell to 59% to 60% of the station's business volume after the condemnation. Mantooth stated that the decline in gasoline sales did not dramatically affect profits since the profit margin for gasoline sales was only 6% to 8%, while the profit margin for the sale of oil was 50%, and the profit margin for labor was 100%.

John Cullian, a condemnation acquisition services engineer for the Department, testified that the existing infrastructure on Route 83 was out of date, in need of repair, and required capacity expansion. The Department planned to improve Route 83 by enlarging it from four to six lanes. The improvements required taking the access rights along Route 83. Prior to the condemnation, only the southbound traffic on Route 83 had access to the station, as the northbound lanes were cut off by a median strip.

Other witnesses testified regarding the requirements and costs of connecting the subject property to the public sanitary and water system pursuant to a local ordinance. The subject property is currently served by a well for water and a septic field for sewage. Conflicting testimony was given on the question of whether the condemnation affected the property's use and whether such a change in use would require ...


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