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12/18/89 the Department of v. Steve Dorner Et Al.

December 18, 1989





548 N.E.2d 749, 192 Ill. App. 3d 333, 139 Ill. Dec. 364 1989.IL.1972

Appeal from the Circuit Court of Cook County; the Hon. Warren Wolfson, Judge, presiding.


JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.


The Illinois Department of Conservation instituted an action in 1982 to exercise its right of eminent domain over 13 subdivided lots owned by the defendants, Edward and Ann Twarog, Steven and Dorothy Dorner, and Wanda Miles (referred to collectively as the owners). After a trial to determine the value of the lots, a jury returned a verdict establishing the value at $5,450 per lot, a value within the range of values testified to during the trial. The owners appeal, arguing that the trial court improperly ruled on several motions in limine. For the reasons below, we affirm.

Wolf Road Prairie is an 80-acre subdivision located in Westchester, Illinois, bounded by 26th Street to the north, 31st Street to the south, Wolf Road to the east, and Forest Road to the west. Wolf Road Prairie is traversed by the middle and south forks of Salt Creek. Improved subdivisions lie to the east and west of Wolf Road Prairie, to the south lies forest preserve, and to the north, undeveloped land. In 1925, Wolf Road Prairie was subdivided into 597 lots of 3,087.5 and 4,075.5 square feet, zoned R-1 for single-family residence. Wolf Road Prairie has not been improved or developed: there are no streets, curbs, or sidewalks, no water, sewer, storm drainage, power, or utilities.

Thirteen lots, five owned by the Twarogs, five owned by the Dorners, and three owned by Miles (the subject lots) lie in the floodway of Salt Creek's south fork. Construction in a floodway is prohibited by regulations of the Illinois Department of Transportation, Division of Water Resources. Seven of the thirteen lots have been targeted as "Protected Wetlands" under section 404 of the Clean Harbors Act (33 U.S.C. 1344 (1982)). Designation as wetlands necessitates a permit from the Army Corps of Engineers before any construction on the property.

In 1976, owners of property in Wolf Road Prairie, including Steven Dorner, filed a mandamus action, unrelated to the instant case, to compel the Village of Westchester to install streets, sidewalks, sewers, water, and other utilities necessary to development in Wolf Road Prairie. The suit was unsuccessful and subsequently was dismissed voluntarily by the property owners in March 1986. See Thomas v. Village of Westchester (1985), 132 Ill. App. 3d 190, 477 N.E.2d 49.

Between 1976 and 1982, a conservation group called Save the Prairie purchased at least 40 Wolf Road Prairie lots for prices between $3,350 and $4,000. In 1979, Curtis Calvert, an attorney who later testified at trial, represented his father in the sale of 47 Wolf Road Prairie lots for $3,500 each. Seventeen of the Calvert lots were sold to owners Dorner and Twarog. The sales to Save the Prairie and from Calvert shall be referred to collectively as "the Wolf Road Prairie sales."

In 1982, IDOC filed the instant action for eminent domain, to use Wolf Road Prairie for flood control. Several defendants were dismissed, and now only the owners of the 13 subject lots remain. A jury trial was held to determine the value of those lots. Prior to trial, the trial court ruled on three motions in limine.

The owners moved to exclude the Wolf Road Prairie sales, contending that the mandamus action had "tainted" the sales, making them involuntary, and therefore, not comparable to determine the fair market value of the subject lots. The motion was denied. IDOC moved to exclude as not comparable recent sales of improved lots

from the adjacent Woodland View and Mayfair subdivisions. The Woodland View and Mayfair lots were buildable, improved lots, twice the size of the Wolf Road Prairie lots, and had recently sold for $35,000 each. IDOC also moved to preclude the owners' experts from basing opinions on

The trial court ruled to exclude evidence of the Woodland View and Mayfair sales, but that at the proper time, the evidence would be heard without the jury, and the ruling would then be reconsidered. At trial, the court excluded the evidence. The trial court further ruled that the parties could not use the cost less development formula to establish the value of any lots outside Wolf Road ...

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