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06/28/96 VILLAGE CARY v. TROUT VALLEY ASSOCIATION

June 28, 1996

THE VILLAGE OF CARY, PLAINTIFF-APPELLEE,
v.
TROUT VALLEY ASSOCIATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of McHenry County. No. 94--ED--8. Honorable James C. Franz and Michael J. Sullivan, Judges, Presiding.

Rehearing Denied August 9, 1996. Released for Publication August 9, 1996.

The Honorable Justice Geiger delivered the opinion of the court: McLAREN, P.j., and Thomas, J., concur.

The opinion of the court was delivered by: Geiger

JUSTICE GEIGER delivered the opinion of the court:

The defendant, Trout Valley Association (the Association), appeals from the orders of the circuit court of McHenry County denying its motion to traverse and dismiss, granting judgment on the condemnation complaint filed by the plaintiff, the Village of Cary (the Village), denying its post-trial motion, and vesting title. On appeal, the Association argues: (1) that the trial court erred in denying its traverse and motion to dismiss because the Village did not meet the statutory requirements to acquire sewer easements outside its municipal boundaries; (2) that the trial court erred in denying its traverse and motion to dismiss because the taking of the subject property is not necessary for the completion of the proposed improvement; (3) that the trial court erred in denying its traverse and motion to dismiss because the taking of the subject property is not for a valid public purpose; (4) that the trial court erred in allowing the Village's valuation witness to testify to undisclosed opinions of value; (5) that the trial court erred in allowing the Village to introduce evidence that the proposed sewer line benefits the remainder of the subject property; (6) that the trial court erred in allowing the restrictions and conditions of the Trout Valley subdivision to be introduced into evidence; and (7) that the trial court erred in not allowing evidence that the owner of Gentry Ridge subdivision paid the Village's engineering witness and is paying for the acquisition of the easements. We vacate the circuit court's judgment on the jury's verdict and remand for entry of an order dismissing the Village's petition for condemnation.

The subject property, known as Lot 244, is owned by the Association. It is located in the Trout Valley subdivision in unincorporated McHenry County adjacent to the Village's boundaries. The subdivision contains over 200 homesites, most of which are developed with single-family residences and served by well and septic. Some lots in the Trout Valley subdivision are currently served with an existing sewer line from the Village. The subject property contains approximately 14 acres, is mostly vacant land, has continuously been used as a recreation area for Trout Valley residents since the subdivision was recorded in 1955, and contains grass, trees, a horse corral, a baseball backstop, and vegetable gardens. The subject property is surrounded on all sides by private roads within the Trout Valley subdivision.

On April 29, 1994, the Village filed a complaint for condemnation in which it sought to acquire a 20-foot-wide permanent easement and a 20-foot-wide temporary construction easement from the Association, for construction and installation of a sewer pipe to be constructed underground. The complaint alleged that the Village had the authority to acquire the subject property pursuant to section 11--139--12 of division 139 of the Illinois Municipal Code (the Code) (65 ILCS 5/11--139--12 (West 1994)).

On May 19, 1994, the Association filed a motion to traverse and dismiss, contending that the complaint for condemnation should be dismissed because (1) the acquisition of the subject property was not for a valid public purpose; (2) the Village did not have the authority to acquire the subject property; (3) the property to be served by the sewer was not within the Village; (4) the acquisition of the subject property was not necessary for the completion of the proposed improvement; (5) the ordinance was unconstitutional as it did not separate public and private uses; (6) there was not a bona fide attempt to agree prior to filing the complaint for condemnation; and (7) the subject property was outside the Village's boundaries.

On February 3, 1995, the trial court held a hearing on the Association's motion to traverse and dismiss. The Village offered into evidence, with no objection, certain public documents, including: (1) a certified Secretary of State record indicating that the Village was a municipality in good standing; (2) the Village's ordinance dated March 12, 1957, establishing a combined waterworks and sanitary sewage system; (3) the Village's ordinance dated March 16, 1994, authorizing the acquisition of a perpetual easement and a temporary construction easement for a municipal sanitary sewer on the subject property; and (4) the Village's letter of offer written by the Village's attorney, J. William Braithwaite, dated April 6, 1994, which contained an offer to purchase the permanent and temporary easements for $29,500, which offer terminated if not accepted by the Association by April 18, 1994. The parties stipulated that the letter was sent and received. After the introduction of these documents into evidence, the Village rested. The Village argued to the trial court that it had established a prima facie case.

Over the Village's objections, the Association was allowed to identify its exhibits 1 through 13, 15, 19 through 24, 28, and 29, which the court admitted into evidence.

The Association then called its only witness, the Village's engineer, Lawrence E. Thomas. Thomas testified that in 1989 he was asked by the Village to consider two alternative routes for the interceptor sewer line. Initial costs were about the same for each route. The sewer was necessary to provide sewage disposal for Gentry Ridge subdivision, other subdivisions that currently exist, and for undeveloped land. The residential lots in Gentry Ridge would start at 10,890 square feet and some would be larger. Thomas testified that the route chosen by the Village was an appropriate route as the operational costs were less. Also, the route selected would serve the needs of the community in the future. This route could serve the unincorporated lots on the Fox River, as well as the Trout Valley subdivision, if septic systems failed. The Village's water and sewage system is operated as one system. A water pipe must be separated from a sanitary sewer and cannot be in the same trench.

The trial court denied the Association's motion to traverse and dismiss, finding that the legislative branch did not abuse its discretion. The Association's post-trial motion, which contested the court's denial of the motion to traverse and dismiss, was also denied. Therefore, the matter was set for trial on the issue of just compensation.

On April 18, 1995, the jury awarded $45,000 for the taking of the permanent easement and $5,000 for the taking of the temporary construction easement. The jury found there was no damage to the remainder.

On August 24, 1995, the final judgment order was filed. On September 19, 1995, the Association filed a post-trial motion, requesting that this cause be dismissed or, in the alternative, for a new trial. On October 25, 1995, the trial court denied the Association's post-trial ...


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