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08/04/94 FOREST PRESERVE DISTRICT DU PAGE COUNTY v.

August 4, 1994

THE FOREST PRESERVE DISTRICT OF DU PAGE COUNTY, APPELLANT,
v.
WEST SUBURBAN BANK, AS TRUSTEE, ET AL., APPELLEES.



Nickels

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

The issue presented in this appeal is whether a municipal corporation without "quick take" powers may obtain an injunction in an eminent domain proceeding to prevent a landowner from altering the subject property. The trial court granted an injunction on behalf of plaintiff, the Forest Preserve District of Du Page County, preventing defendants from excavating land that was the subject of condemnation proceedings. On interlocutory appeal, the appellate court found that the injunction amounted to an unconstitutional taking under the Illinois Constitution and reversed the trial court's order granting the injunction. (249 Ill. App. 3d 900; Ill. Const. 1970, art. I, § 15.) The appellate court granted the plaintiff a certificate of importance, and we accepted jurisdiction pursuant to Supreme Court Rule 316 (134 Ill. 2d R. 316). For the following reasons, we reverse the appellate court and reinstate the injunction.

The facts relevant to the Disposition of this appeal can be stated briefly. On January 15, 1988, plaintiff filed a condemnation action concerning 45 acres of property located in Du Page County. This property was zoned for industrial use, but was currently being utilized as farmland and as storage for heavy machinery. The condemnation proceeding was continued for various reasons during the following years, including defendants' need to substitute counsel on several occasions.

In May of 1991, with the condemnation action still pending, defendants obtained a permit from the County of Du Page allowing for the development of 14 acres of the subject property into a parking lot. Defendants' plans consisted of scraping off the topsoil, hauling it to a different site, and bringing in 45,000 cubic yards of clay. Defendants planned to compact this clay on the subject property and apply a granular surface. In October of 1991, defendants began constructing the parking lot by scraping the topsoil and depositing clay on the property.

After observing this activity on the property, plaintiff sought and received a temporary restraining order preventing further construction. This order remained in effect by agreement of the parties during settlement negotiations concerning the just compensation to be paid for the property. When these negotiations failed, plaintiff sought a preliminary injunction. In support of the motion for injunctive relief, plaintiff alleged that the purpose of the condemnation was to preserve the flora and fauna on the property. The motion also alleged that an injunction was necessary to prevent defendants from irrevocably altering the naturally occurring top soil, vegetation, topography, and drainage patterns.

A hearing was held on plaintiff's motion for a preliminary injunction. At the hearing, there was testimony that the projected cost to construct the parking lot was $4,000 to $5,000. Also, there was testimony that the cost to plaintiff torestore the property at the time of the hearing would be $240,000. If the construction should be completed, the cost to restore the property would increase to $460,000. There was testimony that even with restoration the harm to the soil, flora and water characteristics of the property was irreparable.

After this hearing, the trial court granted plaintiff's motion for a preliminary injunction. In support of this order, the trial court found that, because of plaintiff's statutory right to condemn the property, there was a substantial likelihood of plaintiff's succeeding on the merits. The trial court also found that plaintiff had no adequate remedy at law because the damage sustained to the property would be irreversible and the cost to restore the property would exceed the original purchase price of the land. The trial court also found that the damage to the defendants resulting from the injunction was less than the damage to the plaintiff if construction were allowed to continue.

The trial court's order enjoined defendants from any construction on the property. However, the order explicitly allowed defendants to continue farming the property, to perform maintenance on an existing wash pit, and to erect a soil erosion fence. In addition, defendants were permitted to continue parking equipment on the property.

Defendants sought interlocutory review of the order granting the preliminary injunction. Defendants' brief raised six challenges to the injunction. The appellate court found that plaintiff's request for an injunction in the condemnation proceeding amounted to a "quick take" of the property, thus exceeding the plaintiff's condemnation authority granted by the legislature. The appellate court reversed the order on the theory that the injunction constituted a taking without just compensation in violation of the Illinois Constitution (Ill. Const. 1970, art. I, § 15). As the appellate court found this issue dispositive, it did not reach defendants' remaining arguments.

The appellate court denied plaintiff's petition for rehearing, but granted a certificate of importance. (134 Ill. 2d R. 316.) On appeal, defendants argue that plaintiff's injunction amounts to a "quick take" of the property, thereby exceeding the plaintiff's statutory condemnation powers. In addition, defendants argue that allowing an injunction in a condemnation proceeding amounts to a taking without just compensation in violation of our State and Federal Constitutions. Ill. Const. 1970, art. I, § 15; U.S. Const., amend. V.

Plaintiff argues that without injunctive relief, anydefendant can prevent condemnation by destroying those aspects of the property sought to be acquired. Plaintiff further argues that the injunction does not amount to a taking. Alternatively, if considered a taking, plaintiff argues, an injunction issued in a condemnation proceeding is not unconstitutional because compensation will eventually be paid to defendants. We allowed various municipalities and forest preserve districts to file amicus curiae briefs on behalf of plaintiff.

We first address defendants' argument that plaintiff's injunction amounted to a "quick take" of the property, thereby exceeding plaintiff's statutory power. As a sovereign, the State has an inherent power to condemn property for public use. ( Department of Public Works & Buildings v. Kirkendall (1953), 415 Ill. 214, 218, 112 N.E.2d 611.) Where the legislature delegates the power of eminent domain, it is the province of the courts to determine whether that power has been exercised within that grant. Department of Public Works & Buildings v. Keller (1975), 61 Ill. 2d 320, 324, 335 N.E.2d 443.

A comparison between an ordinary condemnation proceeding and a "quick take" proceeding shows that the injunction did not amount to a "quick take" of defendants' property. In an ordinary condemnation proceeding, a landowner continues to enjoy title and possession of the land pending a final determination of just compensation and the deposit of that amount for his benefit. ( City of Chicago v. R.R. Building Corp. (1962), 24 Ill. 2d 20, 22.) In contrast, the legislature has provided a means for certain State departments, agencies, and units of local government to execute a "quick take" and obtain title or possession before a final determination and payment of just compensation. (Ill. Rev. Stat. 1991, ch. 110, par. 7-103.) The purpose of the "quick take" statute is to provide a means to preventdelays to public projects that could result pending the final determination of just compensation, while at the same time protecting the rights of the landowner. ( Department of Public Works & Buildings v. Vogt (1977), 51 Ill. App. 3d 770, affirmed (1978), 72 Ill. 2d 287.) Under this "quick take" statute, a condemnor files a motion for title and/or possession and the court enters a preliminary finding concerning the amount of just compensation. (Ill. Rev. Stat. 1991, ch. 110, par. 7-104.) Title or the right to ...


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