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07/17/89 Marriott Corporation, v. the Department of

July 17, 1989

MARRIOTT CORPORATION, PLAINTIFF-APPELLEE

v.

THE DEPARTMENT OF TRANSPORTATION ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

542 N.E.2d 163, 186 Ill. App. 3d 167, 134 Ill. Dec. 163 1989.IL.1109

Appeal from the Circuit Court of Lake County; the Hon. Gary C. Neddenriep, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. McLAREN and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendants, the Illinois Department of Transportation (Department) and James M. Graziano, a traffic permit engineer with the Department, appeal from the judgment of the circuit court of Lake County ordering defendants to issue a permanent permit to plaintiff, Marriott Corporation, allowing access from a parcel of land owned by plaintiff to Lake-Cook Road, and ordering $244,000 paid by plaintiff into the State's protest fund returned to plaintiff.

The following issues are raised on appeal: (1) whether the circuit court had subject-matter jurisdiction over this cause; and (2) whether the circuit court erred in finding that a prior owner of plaintiff's parcel had not transferred the right of access to Lake-Cook Road to the State pursuant to a deed dedicating the property for use as a freeway.

The record establishes the following pertinent facts. In 1950, Anna Palo executed a deed of dedication to the State, dedicating a parcel of property owned by her, lot 1, for use as a public highway. The deed of dedication contained the following provision:

"he Grantor further as a part of this dedication, on behalf of himself, his heirs, executors, administrators and assigns, does hereby release, quit claim and extinguish any and all rights or easements of access, crossing, light, air and view under which the tract of land herein conveyed and dedicated might otherwise be servient to abutting lands of Grantor."

Lot 1 is northwest of the intersection of Lake-Cook Road and the Edens Expressway. Following the dedication, an entrance ramp to the southbound Edens Expressway was constructed, part of which was on lot 1. The ramp was removed in 1982.

In 1985, the General Assembly enacted legislation releasing all of lot 1, except for the southernmost 90 feet running along Lake-Cook Road, from the dedication. (Pub. Act 84--974, eff. September 25, 1985.) The legislative release recited that "there is no existing right of access nor will access be permitted in the future . . . [to the Edens Expressway and Lake-Cook Road]." Pub. Act 84--974, § 6--2, eff. September 25, 1985.

Plaintiff acquired the subject property in January 1987 for the purpose of constructing a hotel. Plaintiff retained an attorney to obtain approval from the Department for construction of a driveway entering onto Lake-Cook Road. In March 1987, plaintiff received a permit from the Department for construction of a right in/right out only driveway. Several months later, plaintiff's attorney was told that the permit should have been conditioned upon payment by plaintiff of $244,000. By letter dated June 26, 1987, James M. Graziano informed plaintiff's attorney that, because plaintiff had not paid $244,000 required by the Department, the previously issued permit has been cancelled.

On September 23, 1987, plaintiff filed its complaint in this cause in the circuit court of Lake County, alleging that defendants had denied plaintiff its right of reasonable means of ingress to and egress from its property, and seeking, inter alia, a writ of mandamus to compel defendants to validate the previously issued permit and to take all other action as would allow plaintiff to commence and complete construction of the driveway.

On October 22, 1987, an agreed order was entered by the circuit court which stated, inter alia, that the Department had offered to sell to plaintiff a "release of access control" to Lake-Cook Road for $244,000 and that plaintiff had paid that sum under protest. The agreed order provided that defendants would issue a temporary permit allowing construction of the driveway; that if plaintiff did not accept $244,000 as the price of the release of access control, the issue of fair market value of the release would be tried before the court; and that if the circuit court found that ...


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