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03/19/97 CITY BATAVIA v. ROBERT O. SANDBERG AND

March 19, 1997

THE CITY OF BATAVIA, PLAINTIFF-APPELLEE,
v.
ROBERT O. SANDBERG AND UNKNOWN OWNERS AND CLAIMANTS OF RECORD, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Kane County. No. 93--ED--009. Honorable R. Peter Grometer, Judge, Presiding.

Rehearing Denied April 21, 1997. Released for Publication April 21, 1997.

Presiding Justice Geiger delivered the opinion of the court. Inglis and Rathje, JJ., concur.

The opinion of the court was delivered by: Geiger

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

Defendant Robert O. Sandberg appeals from the orders of the circuit court of Kane County denying his traverse and motion to dismiss and granting judgment on the condemnation complaint filed by the plaintiff, the City of Batavia (the City). On appeal, Sandberg argues that the trial court erred in denying his traverse and motion to dismiss for the following reasons: (1) the City did not strictly follow the Tax Increment Allocation Redevelopment Act (the Act) (65 ILCS 5/11--74.4 et seq. (West 1992)) and its own ordinances in condemning the subject property; (2) the City did not follow the legislative scheme in condemning the subject property; and (3) the City changed the nature of the redevelopment project without going through the approval process required by section 11--74.4--5(c) of the Act (65 ILCS 5/11--74.4--5(c) (West 1994)). We affirm.

On November 12, 1993, the City filed a complaint for condemnation, seeking to condemn a commercial building located at 2 East Wilson Street, Batavia, Kane County, Illinois (the subject property), which was owned by Sandberg. The City sought to condemn the subject property pursuant to section 11--74.4--4 of the Act (65 ILCS 5/11--74.4--4 (West 1992)). On January 18, 1994, Sandberg filed a traverse and motion to dismiss.

On February 14, 1994, the City filed a first amended complaint for condemnation and a response to Sandberg's traverse and motion to dismiss. On May 10, 1994, Sandberg filed a first amended traverse and motion to dismiss.

On May 16, 1994, the trial court held a hearing on Sandberg's first amended traverse and motion to dismiss. On August 1, 1994, the trial court denied the motion in part, finding: (1) that the City's acquisition of the subject property by the exercise of eminent domain was reasonably necessary to achieve the objectives of the redevelopment plan and project adopted by the City through ordinance No. 89--80 in conformance with the Act; (2) that the document entitled "Tax Increment Financing Redevelopment Plan and Project" (the Teska Report), which is incorporated into ordinance 89--80, complies with the requirements of a redevelopment plan and a redevelopment project under the Act; and (3) that ordinance No. 89--80 and resolution No. 93--20--R are valid exercises of power by the City and sufficient under the Act to establish the propriety of the condemnation of the subject property.

On December 6, 1994, Sandberg filed a motion to reconsider the trial court's denial in part of his first amended traverse and motion to dismiss. On January 20, 1995, following a hearing, the trial court denied Sandberg's motion to reconsider.

Also on January 20, 1995, the trial court denied the balance of Sandberg's traverse and motion to dismiss. That portion of the motion had argued that the City had abused its power by creating conditions which justified the taking of the subject property under the ordinances. Sandberg had also argued that the City had acted in a manner which would allow it to pay less for the subject property.

On September 15, 1995, the parties stipulated to the following:

"That the fair cash market value of the [subject property] was $75,000.00 on November 12, 1993, the date of filing of the Complaint for Condemnation."

Also on September 15, 1995, the parties filed a settlement agreement, and the trial court entered an agreed judgment order which provides, in pertinent part:

"This matter coming upon agreement of the parties, all matters having been agreed and settled between the parties, based upon the previously entered stipulation of the parties that the fair cash market [value] of the Subject Property is $75,000.00 on the date of the filing of the Petition for Condemnation.

THIS COURT FINDS that the value of the Subject Property on November 12, 1993, being the date of filing of the Complaint for Condemnation, was the sum of $75,000.00, and that the sum of $75,000.00 is the amount which reflects the just compensation due any and all Defendants as just compensation for the Subject Property taken.

IT IS ORDERED THAT upon Petition for vesting of title by the [City] and the deposit of the sum of $75,000.00, [the] City shall be entitled to transfer of title of the Subject Property."

On October 16, 1995, Sandberg filed a motion to vacate the judgment order, as well as the orders denying his motion to reconsider and his first amended traverse and motion to dismiss. Sandberg's motion also sought a rehearing on his first amended traverse and motion to dismiss. On February 13, 1996, the trial court denied Sandberg's motion.

On March 12, 1996, Sandberg filed a notice of appeal from the trial court's orders of August 1, 1994, January 20, 1995, September 15, 1995, and February 13, 1996. On appeal, Sandberg argues that the trial court erred in denying his first amended traverse and motion to dismiss.

A traverse and motion to dismiss challenge the plaintiff's right to condemn the defendant's property and will result in dismissal when the plaintiff cannot show its right to condemn by proper proof. Forest Preserve District v. Estes, 222 Ill. App. 3d 167, 175, 164 Ill. Dec. 724, 583 N.E.2d 640 (1991). Where a defendant in a condemnation suit contests the plaintiff's right to condemn by filing a traverse and motion to dismiss, the burden is upon the plaintiff to make a prima facie case of the disputed allegations. Department of Transportation v. First Galesburg National Bank & Trust Co., 141 Ill. 2d 462, 469, 152 Ill. Dec. 567, 566 N.E.2d 254 (1990).

A municipality can only exercise the power of eminent domain when it has been specifically conferred by legislative enactment. City of Oakbrook Terrace v. La Salle National Bank, 186 Ill. App. 3d 343, 348, 134 Ill. Dec. 299, 542 N.E.2d 478 (1989). An ordinance granting the eminent domain power must be strictly construed ( Department of Transportation, 141 Ill. 2d at 468-69) in order to protect the rights of property owners ( Forest Preserve District, 222 Ill. App. 3d at 175). A statutory grant of the eminent domain power can only be exercised in the manner authorized by statute. Village of Skokie v. Gianoulis, 260 Ill. App. 3d 287, 295, 198 Ill. Dec. 47, 632 N.E.2d 106 (1994).

In interpreting a statute, the primary rule of statutory construction, to which all other rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature. In re Application for Judgment & Sale of Delinquent Properties for the Tax Year 1989, 167 Ill. 2d 161, 168, 212 Ill. Dec. 215, 656 N.E.2d 1049 (1995). In order to determine the legislative intent, courts must read the statute as a whole, and all relevant parts must be considered. People v. Lewis, 158 Ill. 2d 386, 389, 199 Ill. Dec. 664, 634 N.E.2d 717 (1994). Each section should be construed in connection with every other section. Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 397, 199 Ill. Dec. 659, 634 N.E.2d 712 (1994). Courts should look to the language of the statute as the best indication of legislative intent, giving the terms of the statute their ordinary meaning. In re Application for Judgment, 167 Ill. 2d at 168. Where the statutory language is clear, courts should give effect to the statute as enacted without considering extrinsic aids for construction. Bogseth v. Emanuel, 166 Ill. 2d 507, 513, 211 Ill. Dec. 505, 655 N.E.2d 888 (1995).

In the present case, once Sandberg contested the City's right to condemn by filing a traverse and motion to dismiss, the City had the burden of establishing that it had the authority under the Act to exercise its right of eminent domain to acquire the subject property. In order to meet this burden, the City introduced the following evidence: (1) a certified copy of ordinance No. 89--80, the "Ordinance Approving the Riverfront Tax Increment Redevelopment Plan and Riverfront Redevelopment Projects"; (2) a certified copy of ordinance No. 89--81, the "Ordinance Designating the Riverfront Tax Increment Project Area"; (3) a certified copy of ordinance No. 89--82, the "Ordinance Adopting Tax Increment Financing for the Riverfront Redevelopment Project"; (4) a certified copy of resolution No. 93--20--4, the "Resolution Authorizing Initiation of Proceedings to Acquire Certain Real Property Within the Batavia Redevelopment Project Area"; (5) an enlargement of its conceptual land use plan; (6) photographs of the subject property; and (7) an enlargement of its potential public improvements scheme. In addition, Robert Teska, an expert in the area of tax increment financing districts and land planning, testified on the City's behalf. Following Teska's testimony, the City rested.

Gregg Gabel, an expert in the fields of land planning and tax-increment financing, testified on behalf of Sandberg. Following Gabel's testimony, Sandberg rested. The City then rested without any rebuttal testimony.

Sandberg's first argument on appeal is that the trial court erred in denying his traverse and motion to dismiss because the City did not strictly follow several sections of the Act and its own ordinances in condemning the subject property. Sandberg first argues that the City did not follow section 11--74.4--3(p) of the Act (65 ILCS 5/11--74.4--3(p) (West 1994)). A redevelopment project area is defined in section 11--74.4--3(p) of the Act as follows:

"(p) 'Redevelopment project area' means an area designated by the municipality *** in respect to which the municipality has made a finding that there exist conditions which cause the area to be classified as an industrial park conservation area or a blighted area or a conservation area, or a combination of ...


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