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05/01/89 Commonwealth Edison v. the Illinois Commerce

May 1, 1989





538 N.E.2d 213, 181 Ill. App. 3d 1002, 131 Ill. Dec. 25 1989.IL.642

Petition for review of order of Illinois Commerce Commission.


JUSTICE McLAREN delivered the opinion of the court. UNVERZAGT, P.J., and DUNN, J., concur.


Plaintiffs, Commonwealth Edison Company (Edison) and Charles Walneck (Walneck), appeal from an order of the Illinois Commerce Commission (Commission) denying the proposed conveyance of real property from Edison to Walneck. We reverse and remand.

In 1968, Edison purchased a tract of land in McHenry County consisting of approximately 98.8 acres. The property was intended to be used as a site for a proposed electrical transmission substation. In 1981, Edison determined that a portion of the property would not be needed for that purpose and attempted to sell the property to the Village of Oakwood Hills. However, the village did not express any interest in the property.

Early in 1986, Material Service Corporation (Material) expressed an interest in the property. Material wanted to use the property as a gravel pit. However, Edison did not begin any negotiations with Material. Edison determined that the gravel pit would generate large amounts of dust such that it would be impossible to maintain the electrical substation located on an adjoining parcel of property.

The McHenry County Conservation District (District) also expressed an interest in the property. The District wanted to purchase the property to preserve the natural state of the fen located on the property. A fen is described as a wetland area that has constant streams of mineralized water going into it. The District was especially concerned with the endangered and/or threatened species of flora and fauna found on the property and wanted to purchase the property to protect the species.

Edison also received notice that Walneck was interested in purchasing the property. It was Walneck's intention to develop the property by building 50 single-family residences on a 76-acre portion of the property. Walneck also expressed a strong desire in leaving the remainder of the property (approximately 22.8 acres) in its natural state.

Edison attempted to reconcile the interests of both the District and Walneck by offering a portion of the property to each party. The District rejected the offer, stating that the proposed residential development would adversely affect the wetlands area. Edison then requested sealed bids for the property. Walneck offered $165,000 and the District offered $130,000. The District also offered to clean up a portion of the property that had been used as a dumping site by local residents. Edison accepted Walneck's offer and entered into a written contract with Walneck for the sale of the property. Edison then filed a petition with the Commission seeking approval of the sale of real property to Walneck.

On September 30, 1987, a hearing was held before an examiner. The District filed a petition to intervene, which was granted. A total of seven witnesses testified at the hearing. Edison presented three witnesses to testify as to the specifics of the proposed sale to Walneck, including the tax and accounting implications of the sale. The other four witnesses testified as to the effect the proposed sale would have on the fen.

Walneck testified that he planned to build 45 to 50 homes on the property. Each of these homes would possess well and septic systems. Walneck indicated that his proposed development would not damage the fen in any way and in fact would serve to enhance the wetlands area. However, Walneck admitted that he had no expertise in environmental matters and preferred to defer his Conclusion to Marvin Frisch, the proposed developer.

Frisch testified that the housing development would enhance and lengthen the life of the fen. It was his opinion that the development would not cause any damage to the fen area. Frisch planned on designing and installing a detention-retention area to eliminate the erosion problem that had been occurring on the property. It was Frisch's opinion that by developing the property and controlling the soil erosion, the life of the fen would be lengthened.

The District also presented two witnesses at the hearing. Donald Schellhaas, the executive director of the District, testified as to the results of the field study done on the property. Schellhaas noted that approximately 20 acres of the property were used for agricultural purposes, with the fen area consisting of approximately 40 acres. The remainder of the property was a hilly, wooded area separating the fen from the ...

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