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Southwestern Illinois Development Authority v. National City Environmental

IN THE SUPREME COURT OF THE STATE OF ILLINOIS


April 19, 2001

THE SOUTHWESTERN ILLINOIS DEVELOPMENT AUTHORITY, APPELLANT,
v.
NATIONAL CITY ENVIRONMENTAL, L.L.C., ET AL., APPELLEES.

The opinion of the court was delivered by: Justice Freeman

Docket No. 87809-Agenda 18-May 2000.

At issue in the present case is whether the Southwestern Illinois Development Authority (the Authority) can use the power of eminent domain to take real property owned by National City Environmental, L.L.C., and St. Louis Auto Shredding Company (collectively NCE), and convey the property to Gateway International Motorsports Corporation (Gateway).

BACKGROUND

The Authority is a political subdivision, body politic and municipal corporation created by the Southwestern Illinois Development Authority Act (the Act) (70 ILCS 520/1 et seq. (West 1998) (formerly Ill. Rev. Stat. 1991, ch. 85, par. 6151 et seq.)). The stated purpose of the Act is "to promote industrial, commercial, residential, service, transportation and recreational activities and facilities, thereby reducing the evils attendant upon unemployment and enhancing the public health, safety, morals, happiness and general welfare of this State." 70 ILCS 520/2(g) (West 1998).

Pursuant to the Act, it is "the duty of the Authority to promote development within the geographic confines of Madison and St. Clair counties." 70 ILCS 520/5 (West 1998). The Act mandates that the Authority assist in the development, construction and acquisition of industrial, commercial, housing or residential projects within these counties. 70 ILCS 520/5 (West 1998). The Act defines a "[c]ommercial project" as "any cultural facilities of a for-profit or not-for-profit type including *** racetracks *** [and] parking facilities." 70 ILCS 520/3(j) (West 1998).

To accomplish the purposes of the Act, the legislature empowered the Authority to issue bonds for the purpose of acquiring, improving or developing projects, including those established by business entities locating or expanding property within Madison and St. Clair Counties. 70 ILCS 520/7 (West 1998). The Act also confers upon the Authority the power to acquire real property by condemnation, and declares that "[t]he acquisition by eminent domain of such real property or any interest therein by the Authority shall be in the manner provided by the `Code of Civil Procedure' [735 ILCS 5/1-101 et seq. (West 1998)], *** including Section 7-103 thereof [735 ILCS 5/7-103 (West 1998) (quick-take provision)]." 70 ILCS 520/8(b) (West 1998).

In June 1996, the Authority issued $21.5 million in taxable sports facility revenue bonds. The Authority lent the proceeds of the bonds to Gateway to finance the costs of acquiring, constructing and installing a multipurpose automotive sports and training facility in the City of Madison. Gateway signed a loan agreement and a note to evince its obligation to repay the loan. Additionally, payment of the principal of, and interest on, the note and the bonds are guaranteed by Grand Prix Association of Long Beach (Grand Prix) and Automotive Safety and Transportation Systems, Inc., companies related to Gateway. Although the bonds do not constitute an indebtedness of the Authority or of the state, they are a moral obligation of the state.

Gateway used the proceeds from the bonds to acquire a small racetrack and transform it into a racing and training facility capable of hosting major race car events. In 1997, the racetrack had 25,000 grandstand seats and 25,000 portable seats. The racetrack hosted three major events and a number of smaller events, with total attendance of 400,000. In 1998, Gateway increased seating capacity and hosted four major events at the racetrack. Gateway's goal is to increase seating capacity in increments to the point where the racetrack has the 85,000 to 100,000 seats needed to host a Winston Cup NASCAR event.

On February 20, 1998, Gateway requested that the Authority use its quick-take eminent domain powers to acquire a 148.5 acre tract of land (the Property) west of the racetrack for parking. Gateway asked the Authority to acquire the Property from its owner, NCE, and convey it to Gateway. Gateway paid an application fee of $2,500 to the Authority, and the sum of $10,000 to be applied toward the Authority's sliding scale fee of 6% to 10% of the acquisition price of property being condemned. Gateway also agreed to pay the Authority's out-of-pocket expenses or other costs associated with the quick-take process, including the acquisition price of the Property. Members of the board of the Authority are not entitled to compensation (70 ILCS 520/4(c) (West 1998)), and did not receive any part of these fees.

On February 23, 1998, the St. Clair County board adopted a resolution authorizing the Authority to exercise its quick-take eminent domain powers to acquire the Property for use by Gateway for racetrack parking. See 70 ILCS 520/8(b) (West 1998) (requiring the approval of the county board before the Authority can use its quick-take eminent domain powers within the unincorporated areas of a county). The board noted that attendance at the racetrack was expected to increase from 400,000 in 1997 to 600,000 in 1998, and that other development projects in the area would reduce available racetrack parking by 100 acres. The board found that it was necessary to create additional parking areas to safely and adequately serve the spectators who would be attending events at the racetrack during 1998 and in subsequent years. Further, the board found that expansion of the racetrack would enhance the public health, safety, morals, happiness, and general welfare of the citizens of southwestern Illinois by increasing the tax base in St. Clair County and generating additional tax revenues.

Upon receipt of the St. Clair County board resolution, the Authority held a public hearing on March 5, 1998, with notice given to NCE and adjacent property owners. Ray Reott, an attorney representing NCE, attended the meeting and voiced NCE's objections to the proposed taking. At the meeting, the Authority adopted a resolution to assist the expansion of the racetrack (the Development Project) through the acquisition of the Property. The Authority found that the Development Project would enhance the public health, safety, morals, happiness, and the general welfare of the citizens of southwestern Illinois through the creation of job opportunities, the generation of additional tax revenues and the expansion of the tax base within St. Clair County. The Authority also found that the Property was integral to the success of the Development Project, and authorized its executive director to take all necessary and appropriate actions, including negotiations and commencement of quick-take eminent domain proceedings, to acquire title to the Property. Further, the Authority authorized its chairman or vice-chairman to execute an agreement between the Authority and Gateway for acquisition of the Property through the use of quick-take eminent domain proceedings and conveyance of the Property to Gateway in furtherance of the Development Project.

Alan Ortbals, the Authority's executive director, attended a meeting in Chicago on March 17, 1998, in an attempt to acquire the Property through negotiations. At the meeting, Gateway delivered a written offer to NCE to purchase the Property for $1 million. By letter dated March 19, 1998, NCE rejected the offer, but indicated its willingness to meet the week of March 30, 1998, when NCE expected to have a completed appraisal of the Property. In a separate letter to the Authority, NCE requested that the Authority forward copies of any appraisals of the Property in its possession by March 25, 1998. The Authority complied with this request.

On March 20, 1998, the Authority made a written offer to NCE to purchase the Property for $1 million, and advised NCE that the Authority would initiate condemnation proceedings if NCE did not accept the offer by 5 p.m. on March 30, 1998. The Authority also attempted to follow through with the suggestion in NCE's letter of March 19, 1998, that the parties meet the week of March 30, 1998. On March 30, 1998, Harry Sterling, the Authority's attorney, and Ortbals attempted to place a conference call to Reott. Reott was not available and failed to return the telephone call.

NCE did not respond to the Authority's offer by the stated deadline. Instead, by letter dated April 20, 1998, NCE indicated that it did not feel that it was necessary to respond to the Authority's offer because the Authority knew that NCE had rejected Gateway's offer to purchase the Property for the identical sum of $1 million. However, to remove any uncertainty on the subject, NCE indicated that it was rejecting the Authority's offer.

Meanwhile, on March 31, 1998, the Authority filed a complaint for condemnation in the circuit court of St. Clair County, seeking to acquire fee simple title to the Property. The Authority also filed a motion for immediate vesting of title, and requested that the court fix a date for a quick-take hearing, pursuant to the quick-take provisions of the Code of Civil Procedure. See 735 ILCS 5/7-103, 7-104 (West 1998).

Also on March 31, 1998, NCE filed a motion to dismiss the complaint for condemnation. Subsequently, on April 2, 1998, NCE filed a traverse and motion to dismiss, arguing that the proposed taking was for an unconstitutional private use; that the proposed taking was excessive; that the racetrack did not need additional parking; and that the Authority had not made a good-faith attempt to agree with NCE on an acceptable purchase price. NCE also filed a motion to strike the Authority's request for immediate vesting of title. The circuit court denied NCE's motion to dismiss and motion to strike the Authority's request for immediate vesting of title.

The court proceeded to hold a quick-take hearing. At the hearing, John Baricevic, St. Clair County board chairman, testified that the Property is located in unincorporated St. Clair County, and that the board adopted a resolution authorizing the Authority to exercise its quick-take eminent domain powers to acquire the Property. Baricevic also testified that certain economic studies were done in connection with the bond issue and Gateway's acquisition of the racetrack. These studies showed the projected economic impact from the development of the racetrack and from increased attendance as the racetrack expands. No specific studies were made regarding the impact of the proposed taking on tax revenues or the tax base.

Alan Ortbals testified regarding the economic and traffic impact of the racetrack on the surrounding area. Ortbals stated that the racetrack hosted more major races and drew more spectators in 1997 than anticipated in studies performed prior to the development of the racetrack. The racetrack had added 10,000 seats and was ahead of projections for attendance in 1998. As a result, the county was experiencing faster economic spin-off than anticipated. A truck stop across from the racetrack was undergoing expansion; a parcel of land across from the racetrack sold for development of a restaurant; and a golf course was being developed on the site of a former junk yard. In addition, several hotels and restaurants were being developed in the immediate area of the racetrack and in nearby municipalities.

Due to the success of the racetrack, the county was experiencing serious traffic problems on race days with traffic backed up on both sides of Interstate 55-70. A number of racetrack patrons parked east of Illinois Route 203, creating traffic safety problems as they crossed Illinois Route 203 to gain access to the racetrack. Using the Property for racetrack parking would alleviate both of these traffic problems.

Ortbals also testified that when Gateway approached the Authority regarding the Property, he reviewed the studies that were done in connection with the financing of the racetrack, including an analysis of Gateway's business plan, an analysis of the economic impact of the racetrack, an analysis of the traffic impact of the racetrack, and a market demand study. He also reviewed an analysis of the economic impact of a similar racetrack in Topeka, Kansas. He presented a report to the board of the Authority regarding these studies. In Ortbals' opinion as an expert in the field of economic development, the Authority's acquisition of the Property by quick-take was necessary to promote economic development, alleviate traffic safety problems, and eliminate blight.

On cross-examination, Ortbals testified that the Authority did not commission any studies analyzing the effect of the condemnation of the Property on employment levels, the tax base of St. Clair County, or traffic safety problems. Ortbals admitted that there were no slums on the Property. However, the development of the racetrack has had an indirect effect on the elimination of blight in the area. The golf course replaced an old junk yard, and three or four dilapidated and abandoned homes on Bend Road have been demolished.

Mike Pritchett, a design and planning engineer employed by the Illinois Department of Transportation (IDOT), testified as an expert in the field of civil engineering. He stated that IDOT was working with Gateway to find a traffic plan that would move traffic in and out of the racetrack efficiently, with minimal impact on the state and interstate highways. To that end, IDOT has studied the traffic patterns occurring around the racetrack. On days of major events, there were significant backups on Interstate 55-70, extending into Missouri. Because the interstate was designed to facilitate travel at high speeds, drivers do not anticipate that cars will be stopped in traffic on the interstate. Stopped traffic on the interstate is thus a safety hazard.

Pritchett also testified that large numbers of racetrack patrons crossed Illinois Route 203 from the parking areas east of the highway to the racetrack. Illinois State Police troopers operate a traffic signal at Ohio Street and Illinois Route 203 manually to allow racetrack patrons to cross the highway. However, the traffic backed up at the signal had negative repercussions on Interstate 55-70. Furthermore, many racetrack patrons crossed at random locations along the highway. When IDOT put a fence along Illinois Route 203 to try to channel racetrack patrons to Ohio Street, they pushed the fence down to cross the highway. Although no accidents had yet occurred, there was no assurance that none would.

Pritchett testified further that IDOT had improved Illinois Route 203 to help the flow of traffic in and out of the racetrack. These improvements were based on a traffic impact study conducted in 1996, which assumed a considerable amount of parking west of the racetrack. Construction of a parking lot on the Property would provide parking west of the racetrack, as suggested in the study, and alleviate traffic problems on race days. Pritchett concluded that it was necessary, from a safety standpoint, for the Authority to acquire the Property for development of a parking lot.

On cross-examination, Pritchett testified that taking the Property would not solve all the traffic problems in the area. Some racetrack patrons would continue to park east of Illinois Route 203 and cross the highway to gain access to the racetrack. And if the racetrack was able to host a Winston Cup race, the traffic jams in the area would increase. However, construction of a parking lot on the Property was one of several measures IDOT was considering to provide additional access to the racetrack and ease the pressure on Illinois Route 203.

The mayor of the City of Madison testified that the racetrack had brought new jobs to the city and increased revenues from sales and entertainment taxes. He attributed the development of the golf course to the racetrack, and testified that several developers were negotiating plans with the city to develop motels and restaurants in the area. He also testified regarding the traffic problems on race days, and stated that it would be beneficial to have parking on the Property.

The president of the Village of Fairmont City attributed the development of an 86-room hotel in the village to the racetrack. He testified that continued growth of the racetrack was in the best economic interest of the village.

The president of the Southwestern Illinois Tourism and Convention Bureau, a not-for-profit corporation representing eight southwestern Illinois counties, testified that tourism was the second largest industry in the area. He estimated that in 1997 tourism added between $520 million and $530 million to the economies of the eight counties, with the economic impact of the racetrack being $43.4 million. He also testified that, since January 1, 1996, in excess of 30 hotels had been built, were under construction, or were slated for construction in the area. The racetrack was a major contributing factor to the construction and proposed development of the hotels.

Scott Harding, a consulting engineer, performed an offsite evaluation of the Property. He testified that approximately 27 to 48 acres of the Property constitute wetlands. A developer who proposes to drain and build on an area that has been designated a wetland must first obtain a permit from the United States Army Corps of Engineers, listing conditions that must be met to minimize impact on the wetland, or steps, such as compensation, that must be taken in mitigation. Compensation involves replacing wetland that is used in a project with wetland that is created on another part of the same site or on a different site. Harding testified that Corps of Engineers policies call for compensation ratios of three to one for wooded wetlands, two to one for wetlands with scrub shrub, one and a half to one for emergent wetlands and one to one for farm wetlands. The Corps of Engineers may determine that certain high quality wetlands should not be impacted at all.

Based upon the types of wetland found on the Property, Harding estimated that the Corps of Engineers would require two to one compensation; that is, for every acre of wetland impacted by construction, the Corps of Engineer would require that Gateway create or construct two acres of wetlands. Thus, assuming that Gateway impacted 48 acres of wetlands and compensated on site, approximately 50 acres of land would remain for development.

Rod Wolter, Gateway's president and general manager, testified that all the major events at the racetrack were sold out in 1997. Total attendance at the racetrack that year was 400,000. The racetrack's schedule for 1998 listed more events than in 1997. In addition, the racetrack expected sell-out crowds at the major events in 1998. Attendance at those events would be greater than in 1997 because of increased seating capacity at the racetrack.

On cross-examination, Wolter testified that the racetrack had an immediate need for 2,000 to 5,000 parking spaces. The racetrack can park 2,000 cars on as little as 20 acres, and 5,000 cars on as little as 49 acres. The racetrack could get through the 1998 season without the Property, using remote parking areas. On redirect, Wolter testified that it was not in the racetrack's best interest to "get by" with parking. Lack of adequate parking could result in faltering attendance at the racetrack.

Christopher Pook, the CEO of Grand Prix, testified that Gateway added 10,000 seats to the racetrack in the spring of 1998, and planned to add another 20,000 seats in the fall. He also testified that, in order to obtain a contract to host a NASCAR Winston Cup event, Gateway would have to increase seating capacity to a minimum of 85,000 seats and have adequate parking in place. Gateway has considered building a raised parking garage at the racetrack. However, building such a garage was not economically feasible.

Pook testified next regarding several unsuccessful attempts, starting in May 1995, to reach an agreement with NCE for the use or purchase of the Property. Irv Pielet, one of NCE's owners, told him repeatedly that NCE was not interested in selling the Property or in any business relationship with Gateway. Pook also testified that two nearby landowners had notified Gateway that 30 acres of land previously used for parking would no longer be available.

Roger Bowler, the plant manager for St. Louis Auto Shredding Company, testified that the plant employed 80 persons on a full-time basis. During periods of peak activity, the plant hired additional employees on a part-time basis. On an annual basis, the plant recycled 90,000 to 100,000 cars, recovering metals from the cars for shipment to foundries, steel mills and smelters, and depositing other materials in a landfill operated by the plant. Bowler also testified that the current landfill would be capped in five to eight years and NCE planned to use the Property as its new landfill.

In lieu of personal testimony, the circuit court admitted into evidence Irv Pielet's discovery deposition. Pielet stated that Pook was interested in some part of NCE's land for a business venture, but he denied that Pook spoke to him about purchasing the Property. Pielet claimed that he learned of Gateway's interest in the Property from a newspaper account of the St. Clair County board's resolution.

Pielet stated further that the NCE's current landfill had less than 10 years of capacity remaining. However, no studies had been done of the landfill's capacity and 11 acres of the landfill had not yet been used. Pielet also stated that NCE had taken dirt once from the Property to cover a portion of the current landfill. NCE planned to take more dirt from the Property as needed to cover the section of the landfill the auto recycling plant was currently using. Lastly, Pielet indicated that the Property has 9.2 acres of wetlands.

At the conclusion of the quick-take hearing, the circuit court approved the condemnation. The court found that the taking was for a public purpose, referring specifically to Pritchett's testimony regarding public safety and Ortbals' testimony regarding public safety, economic development and the elimination of blight. The court also found, in light of the testimony regarding wetlands and testimony that parking west of the racetrack would promote public safety, that the taking was not excessive. Further, the court found that Pielet had been unwilling to negotiate in a meaningful fashion and the use of quick-take procedures was necessary to avert any negative economic impact to the people of Madison and St. Clair Counties. Finally, the court found that the Authority had bargained for the Property in good faith; NCE's failure to reject the Authority's offer in a timely manner or to present a counteroffer was dispositive of this issue.

The circuit court denied NCE's oral motion for a stay (see 735 ILCS 5/7-104(b) (West 1998)) and proceeded to hear evidence of just compensation for the Property (see 735 ILCS 5/7-104(c) (West 1998)). Subsequently, the court made a preliminary finding that $900,000 constituted just compensation. Upon evidence presented to the court of payment of that amount, the court entered an order of taking, vesting in the Authority the fee simple title to the Property and authorizing immediate possession of the Property. See 735 ILCS 5/7-105(a) (West 1998). NCE filed an emergency motion for a stay of the transfer of title or, in the alternative, for an order requiring that the Authority post a bond of $38 million pending appeal. The circuit court denied the motion.

NCE filed an interlocutory appeal, pursuant to section 7-104 of the Code of Civil Procedure (735 ILCS 5/7-104(b) (West 1998)) and Supreme Court Rule 307(a)(7) (166 Ill. 2d 307(a)(7)), asserting that the Authority lacked the constitutional authority to take the Property and convey it to Gateway, amongst other issues. NCE also filed an emergency motion for a stay of the condemnation, which the court granted.

Citing Southwestern Illinois Development Authority v. Vollman, 235 Ill. App. 3d 32 (1992), the appellate court ruled that, in an interlocutory appeal pursuant to section 7-104(b) and Rule 307(a)(7), only three issues can be raised: (1) whether the plaintiff has the authority to exercise the right of eminent domain; (2) whether the property taken is subject to the exercise of such right; and (3) whether the right is being properly exercised in the proceeding. 304 Ill. App. 3d 542, 544; see also 735 ILCS 5/7-104(b) (West 1998). *fn1 The appellate court then found that the Authority had the power to exercise the right of eminent domain and that the Property was subject to the exercise of such right. 304 Ill. App. 3d at 546. However, the appellate court held that the Authority did not properly exercise the right of eminent domain because the Authority sought to condemn the Property in order to convey it to Gateway. According to the appellate court, the condemnation was for a private use in violation of the constitutional limitation against taking private property by eminent domain except for public purposes. 304 Ill. App. 3d at 553. In light of this holding, the appellate court did not decide the other issues it had determined were properly raised in this interlocutory appeal.

The Authority filed a petition for leave to appeal pursuant to Supreme Court Rule 317 (134 Ill. 2d R. 317). We granted the Authority's petition and allowed the City of Chicago, Town of Normal, St. Clair County State's Attorney, Illinois Municipal League, Illinois Institute for Local Government Law, and Metro Counties Council to file an amicus curiae brief in support of the Authority (155 Ill. 2d R. 345). We also allowed the Illinois Agricultural Association, the Institute for Justice, the Heartland Institute, and Matthew Kassnel to file amicus curiae briefs in support of NCE.

ANALYSIS

A. Public Use

The State, as a sovereign, has the inherent right to condemn property, subject to our state constitutional mandate that private property may not be taken or damaged for public use without just compensation to the owner. Ill. Const. 1970, art. I, §15; Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 455 (1994); Department of Public Works & Buildings v. McNeal, 33 Ill. 2d 248, 251 (1965). The fifth amendment to the United States Constitution (U.S. Const., amend. V), made applicable to the states through the fourteenth amendment (U.S. Const., amend. XIV), also provides that private property shall not be taken for public use, without just compensation. Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (1984). In this case, the appellate court determined that the Authority had taken NCE's property for a private use, not a public use. Contrarily, the Authority maintains that the condemnation was for a public use. The Authority contends that the circuit court's finding that the condemnation served three separate public purposes, i.e., public safety, economic development, and the elimination of blight, was consistent with the evidence and the law. The Authority also maintains that a condemnation for a public purpose is not transformed into a condemnation for a private use merely because the condemning body transfers title, use or possession of the property to a private party to carry out the public purpose involved.

Our analysis of public use starts with Berman v. Parker, 348 U.S. 26, 99 L. Ed. 27, 75 S. Ct. 98 (1954). In Berman, the United States Supreme Court upheld the constitutionality of the District of Columbia Redevelopment Act of 1945, §§5-701 through 5-719, 60 Stat. 790 (1951) (D.C. Code). That act provided for the use of eminent domain to acquire property in slums and blighted areas, and for the lease or sale of the property to private interests for redevelopment pursuant to a comprehensive redevelopment plan. The appellants argued that their property could not be taken constitutionally because the property was commercial, not residential property; the property was not slum housing; the property would be put into the project under the management of a private, not a public, agency and redeveloped for private, not public, use. The Court considered first whether the takings authorized by the act were for a public use, stating:

"The power of Congress over the District of Columbia includes all the legislative powers which a state may exercise over its affairs. [Citation.] We deal, in other words, with what traditionally has been known as the police power. An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it be Congress legislating concerning the District of Columbia [citation] or the States legislating concerning local affairs. [Citations.] This principle admits of no exception merely because the power of eminent domain is involved. The role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one." Berman, 348 U.S. at 31-32, 99 L. Ed. at 37, 75 S. Ct. at 102.

The Court then rejected the appellants' contention that their property was being taken for a private use because the property would be transferred to a private individual or company, stating:

"Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. [Citations.] Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. [Citation.] The public end may be as well or better served through an agency of private enterprise than through a department of government-or so the Congress might conclude." Berman, 348 U.S. at 33-34, 99 L. Ed. at 38, 75 S. Ct. at 103.

In Hawaii Housing Authority, 467 U.S. at 240, 81 L. Ed. 2d at 197, 104 S. Ct. at 2329, the Supreme Court explained that the public use principle is "coterminous with the scope of a sovereign's police powers." The Court also explained the role of the judiciary in reviewing a legislature's public use determination:

"There is, of course, a role for courts to play in reviewing a legislature's judgment of what constitutes a public use, even when the eminent domain power is equated with the police power. But the Court in Berman made clear that it is `an extremely narrow' one. [Citation.] The Court in Berman cited with approval the Court's decision in Old Dominion Co. v. United States, 269 U.S. 55, 66 (1925), which held that deference to the legislature's `public use' determination is required `until it is shown to involve an impossibility.' The Berman Court also cited to United States ex rel. TVA v. Welch, 327 U.S. 546, 552 (1946), which emphasized that `[a]ny departure from this judicial restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields.' In short, the Court has made clear that it will not substitute its judgment for a legislature's judgment as to what constitutes a public use `unless the use be palpably without reasonable foundation.' [Citation.]

*** [W]here the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause." Hawaii Housing Authority, 467 U.S. at 240-41, 81 L. Ed. 2d at 197-98, 104 S. Ct. at 2329-30. See also National R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 422, 118 L. Ed. 2d 52, 69, 112 S. Ct. 1394, 1404 (1992).

Additionally, the Court reaffirmed the principle outlined in Berman that a taking for a public use is not transformed into a private taking through a subsequent transfer to a private party. The Court stated:

"The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose. The Court long ago rejected any literal requirement that condemned property be put into use for the general public. `It is not essential that the entire community nor even any considerable portion, . . . directly enjoy or participate in any improvement in order [for it] to constitute a public use.' [Citation.] `[W]hat in its immediate aspect [is] only a private transaction may . . . be raised by its class or character to a public affair.' [Citation.] *** [G]overnment does not itself have to use property to legitimate the taking; it is only the taking's purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause." Hawaii Housing Authority, 467 U.S. at 243-44, 81 L. Ed. 2d at 199, 104 S. Ct. at 2331.

This court has also been guided by the principles outlined in Berman. Thus, in People ex rel. Adamowski v. Chicago R.R. Terminal Authority, 14 Ill. 2d 230 (1958), this court held constitutional the Railroad Terminal Authority Act (Ill. Rev. Stat. 1957, ch. 114, pars. 361 through 389). This court noted that the plaintiff's basic objection was that the principal beneficiaries of the act were private corporations. This court stated:

"To the extent that plaintiff's contentions are directed to an alleged absence of public use and public purpose, they are without merit. The General Assembly has described in considerable detail the conditions which the act is designed to eliminate and has declared the public use and public interest that it found to exist. Such a legislative declaration is not to be lightly set aside. [Citations.] `Public purpose' is not a static concept. It is flexible, and is capable of expansion to meet conditions of a complex society that were not within the contemplation of the framers of our constitution. [Citations.]

The primary objects of the statute are the removal of the blighted conditions caused by antiquated terminal areas, the promotion of the growth and development of the city, and the relief of traffic congestion ***. [Citations.] It may be that private railroad corporations will derive some benefit under the act. Those benefits, however, will be incidental to the principal purpose of the statute ***." Adamowski, 14 Ill. 2d at 235-36.

In Illinois Toll Highway Comm'n v. Eden Cemetery Ass'n, 16 Ill. 2d 539, 541 (1959), the Illinois State Toll Highway Commission sought to acquire an underground easement for sewer and water facilities through the defendants' cemetery property. The defendants objected that the property was being taken to service a gasoline station to be operated by a private corporation, and to service a privately owned restaurant. This court noted that the purpose of the toll highways was to provide fast, through traffic in a safe manner, and that it was necessary that gasoline service stations and restaurants be located on or in close proximity to the highway proper, thereby reducing a great number of entrances and exits to reach these services. This court reasoned:

"As plaintiff points out, the operations of a gas station or a restaurant are specialized businesses, and are enterprises calling for experts in these fields. So the legislature wisely granted to the Commission the power to make contracts with, and to grant concessions to, and to lease to persons and private corporations. As the court said in the case of Berman v. Parker, 348 U.S. 26, 99 L. ed. 27, at pages 33-34: `The public end may be as well or better served through an agency of private enterprise than through a department of government-or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.'

We therefore conclude that service stations and restaurants are an integral part of the toll road system, whether they be operated by the Toll Highway Commission or leased to a private corporation who may be better able to carry on the business, thus bringing about the desired result. We think, further, that since access to sewer and water facilities is essential to the operation of service stations and restaurants, the reasoning which sustains the propriety of arrangements for the latter must uphold as well a reasonable exercise of condemnation powers in obtaining the former. The present exercise of the power has not been shown to be unreasonable under the circumstances ***." Eden Cemetery Ass'n, 16 Ill. 2d at 545-46. See also People ex rel. City of Urbana v. Paley, 68 Ill. 2d 62, 76 (1977) ("It is apparent that the city of Urbana intends to undertake the redevelopment in question primarily for the purpose of revitalizing an economically stagnant downtown area. The purpose of the project is therefore clearly and predominantly a public purpose, and the benefit reaped by private developers is merely an inevitable incident thereto"); People ex rel. City of Salem v. McMackin, 53 Ill. 2d 347, 355 (1972) ("While we acknowledge that there is a benefit to private interests in the financing of industrial projects under the Act, we hold that the principal purpose and objective of the Act is public in nature. Therefore, it does not matter that there will be an incidental benefit to private interests"); City of Chicago v. Barnes, 30 Ill. 2d 255, 257 (1964) ("it does not follow that because the land may later be sold to a private developer its taking and clearance cannot have been for a public purpose").

Turning to the statute in the present case, we note that the legislature determined that "labor surplus areas currently exist in the southwestern part of the State" (70 ILCS 520/2(a) (West 1998)), and recognized that "the economic burdens resulting from involuntary unemployment fall in part upon the State in the form of increased need for public assistance and reduced tax revenues and, in the event that the unemployed worker and his family migrate elsewhere to find work, may also fall upon the municipalities and other taxing districts within the areas of unemployment in the form of reduced tax revenues, thereby endangering their financial ability to support necessary governmental services for their remaining inhabitants." 70 ILCS 520/2(b) (West 1998). The legislature also found "[t]hat a lack of decent housing contributes to urban blight, crime, anti-social behavior, disease, a higher need for public assistance, reduced tax revenues and the migration of workers and their families away from areas which fail to offer adequate, decent, affordable housing." 70 ILCS 520/2(d) (West 1998). Thus, the legislature described in detail the conditions the Act was designed to eliminate.

Further, the legislature declared that "decent, affordable housing" (70 ILCS 520/2(e) (West 1998)) and access to "educational institutions, recreation, parks and open spaces, entertainment and sports, a reliable transportation network, cultural facilities and theaters" (70 ILCS 520/2(f) (West 1998)) should be available to every citizen. The legislature also declared that "the State has a responsibility to help create a favorable climate for new and improved job opportunities for its citizens by encouraging the development of commercial and service businesses and industrial and manufacturing plants within the southwestern part of the State." 70 ILCS 520/2(c) (West 1998). The legislature affirmed that "the main purpose of this Act is to promote industrial, commercial, residential, service, transportation and recreational activities and facilities, thereby reducing the evils attendant upon unemployment and enhancing the public health, safety, morals, happiness and general welfare of this State." 70 ILCS 520/2(g) (West 1998).

The legislature created the Authority to promote development in Madison and St. Clair Counties. It charged the Authority with the duty to assist in the development, construction and acquisition of industrial projects, housing or residential projects, and commercial projects including cultural facilities such as sports training facilities, racetracks, and parking facilities. 70 ILCS 520/3, 6 (West 1998). In turn, the Authority issued $21.5 million of bonds to facilitate the development of the racetrack. The Authority now seeks to condemn the Property to further the development of the racetrack by increasing available parking. The development of parking facilities is both a project contemplated under the Act and part of the continued development of the racetrack.

We have heretofore upheld the validity of, and found a proper public purpose in, legislative enactments designed to assist economic development (People ex rel. City of Canton v. Crouch, 79 Ill. 2d 356, 364 (1980); Paley, 68 Ill. 2d at 76; McMackin, 53 Ill. 2d at 358), to prevent or eliminate blight involving both structural infirmity and economic deterioration (Paley, 68 Ill. 2d at 74; Barnes, 30 Ill. 2d at 256; People ex rel. Gutknecht v. City of Chicago, 3 Ill. 2d 539, 545 (1954); Chicago Land Clearance Comm'n v. White, 411 Ill. 310, 316 (1952); Cremer v. Peoria Housing Authority, 399 Ill. 579, 588 (1948); Zurn v. City of Chicago, 389 Ill. 114, 128 (1945), and to promote public safety (Eden Cemetery Ass'n, 16 Ill. 2d at 544). See also Adamowski, 14 Ill. 2d at 236 (blighted conditions, promotion of the growth and development of the city and the relief of traffic congestion). Such legislative determinations are well within the state's police powers.

In the present case, we cannot dispute the legislative findings regarding the need to alleviate certain economic, housing and other conditions in the southwestern part of this state. Nor can we dispute that alleviation of these conditions constitutes a public purpose. The legislature has determined that the use of eminent domain will further this public purpose. To that end, the legislature has vested in the Authority the power of eminent domain so that the Authority may assist in the development of housing, industrial and commercial projects in the area. The legislature has also given the Authority the power to issue bonds to generate the financial wherewithal for the development of the projects. The means employed by the legislature to further the public purpose are not irrational.

B. Particular Taking

In the present case, it is undisputed that the Property is subject to the right of eminent domain. NCE's objection to the taking is that the Authority did not properly exercise the right of eminent domain. NCE maintains that the Authority did not act within the limits of the law. We disagree.

Section 7-104(b) of the Code of Civil Procedure provides in part:

"At the [quick-take] hearing, if the court has not previously, in the same proceeding, determined that the plaintiff has authority to exercise the right of eminent domain, that the property sought to be taken is subject to the exercise of such right, and that such right is not being improperly exercised in the particular proceeding, then the court shall first hear and determine such matters." 735 ILCS 5/7-104(b) (West 1998).

A finding on each of these three issues amounts to a determination of whether or not the plaintiff has the right to take the property by eminent domain. See Department of Public Works & Buildings v. Dust, 19 Ill. 2d 217, 219 (1960). As this court noted in Department of Transportation v. First Galesburg National Bank & Trust Co., 141 Ill. 2d 462, 468 (1990), the plaintiff has only such powers of eminent domain as are conferred upon it by the legislature. See also Department of Public Works & Buildings v. Keller, 61 Ill. 2d 320 (1975). The law conferring the right of eminent domain must be strictly construed. First Galesburg National Bank, 141 Ill. 2d at 469.

When a defendant files a motion to dismiss challenging the authority to condemn, the burden is on the condemning authority to make a prima facie case of the disputed allegations. First Galesburg National Bank, 141 Ill. 2d at 469; Keller, 61 Ill. 2d at 324. This burden may be met by introducing in evidence a statute affirming the authority's right to acquire property by eminent domain (see First Galesburg National Bank, 141 Ill. 2d at 469), or a resolution and ordinance approving the taking (see City of Chicago v. Walker, 50 Ill. 2d 69, 71 (1971)). Once the condemning authority has made a prima facie case, the defendant is required to go forward with evidence showing that there was an abuse of discretion by the condemning authority. First Galesburg National Bank, 141 Ill. 2d at 470; Keller, 61 Ill. 2d at 325. The courts will interfere only where an abuse of discretion is shown, for as we have held many times:

"[W]hether the exercise of the power of eminent domain is necessary or expedient to accomplish an authorized purpose is not a question within the province of the court to determine. The agency on which the power has been conferred also has the authority to decide the necessity for its exercise. In the absence of a clear abuse of this authority the courts will not inquire into the necessity or the propriety of its exercise." Keller, 61 Ill. 2d at 325, citing Department of Public Works & Buildings v. McNeal, 33 Ill. 2d 248 (1965); Forest Preserve District v. Wike, 3 Ill. 2d 49 (1954); City of Chicago v. Vaccarro, 408 Ill. 587 (1951); Zurn v. City of Chicago, 389 Ill. 114 (1945).

In the present case, we find that the Authority satisfied its prima facie burden of proof. As noted above, pursuant to section 8(b) of the Act, the Authority may acquire real property, or rights therein, upon condemnation. 70 ILCS 520/8(b) (West 1998). Section 5 of the Act commands the Authority to assist in the development of commercial projects, including racetracks and parking facilities. 70 ILCS 520/5 (West 1998). The Authority introduced into evidence a resolution adopted by the St. Clair County board authorizing the acquisition of the Property by use of quick-take eminent domain. *fn2 The Authority also introduced into evidence a resolution it adopted to acquire the Property by quick-take eminent domain. The resolutions state that it is necessary to create additional parking areas for the racetrack to safely and adequately service racetrack spectators, and that the acquisition of the Property for parking purposes will enhance the public health, safety, morals, happiness, and the general welfare of the citizens of southwestern Illinois through the creation of job opportunities, the generation of additional tax revenues and the expansion of the tax base within St. Clair County. This evidence suffices for a prima facie case.

It became incumbent upon NCE to introduce evidence showing that the Authority had abused its discretion. NCE failed in this undertaking. The evidence at the hearing fully supports the circuit court's determination that taking the Property will further economic development, promote safety, and lead to the elimination of blight in the area.

The legislature has determined that it is in the public interest to promote industrial, commercial, residential, service, transportation and recreational activities and facilities, thereby reducing the evils attendant upon unemployment and enhancing the public health, safety, morals, happiness and general welfare of the citizens of this state. To that end, the legislature has vested in the Authority the power of eminent domain to assist in the development of commercial projects including racetracks and parking facilities. The acquisition of the Property being in furtherance of the public purpose, the Authority did not abuse its discretion by the use of its eminent domain powers. Judicial intervention is not warranted.

C. Other Concerns

Our discussion above addresses most of the concerns raised in the briefs submitted by amici curiae. Amici Illinois Institute for Justice and the Heartland Institute maintain that the process used by the Authority in condemning the Property violates due process by creating impermissible financial bias in favor of condemnation. We note that NCE, whose position these amici support, has not raised this issue.

In People v. P.H., 145 Ill. 2d 209 (1991), this court explained the role of amicus curiae in an appeal:

"An amicus curiae is not a party to the action but is, instead, a `friend' of the court. As such, the sole function of an amicus is to advise or to make suggestions to the court. [Citation.]

An amicus takes the case as he finds it, with the issues framed by the parties. [Citations.] He is not a party to the action [citation], and arguments made by him, but not espoused by the parties, have no binding effect on the parties [citation]. Therefore, we need not pass on grounds of invalidity urged solely by an amicus." P.H., 145 Ill. 2d at 234.

Based upon these principles, we decline to consider the issue of due process.

CONCLUSION

We agree with the circuit court that the Authority properly exercised its power of eminent domain. The taking of the Property is for a public use, not a private use. The appellate court believed otherwise, and, in light of its holding, decided not to address other issues it had determined were properly raised in this interlocutory appeal. We reverse the judgment of the appellate court and remand the cause to that court for further proceedings consistent with this opinion.

Appellate court judgment reversed;

cause remanded.

CHIEF JUSTICE HARRISON, dissenting:

The 148.5 acre tract of land at issue in this case was not blighted. It was a productive adjunct to NCE's metal recycling operations. The only reason that it is now owned by Gateway

rather than NCE is that it provided the cheapest solution to the parking and traffic problems created by Gateway's expansion of its race track. Other solutions were available. This was just the least expensive. In the end, all SWIDA's intervention did was save Gateway money at NCE's expense.

SWIDA's action in taking NCE's property and transferring it to Gateway for Gateway's private use presents fundamental constitutional issues. Those issues are integral to this dispute and lie at the heart of the appellate court judgment now before us for review. They should have been addressed by the majority.

Under the Illinois Constitution of 1970, the state has no right to take productive, nonblighted real estate from one private landowner in order to provide pecuniary benefits to another. The appellate court was therefore correct in reversing the order of the circuit court approving the eminent domain quick-take action brought by SWIDA. To hold otherwise, as the majority does today, represents a fundamental and destructive shift in basic principles of property ownership. The appellate justice who specially concurred made the case forcefully. I cannot improve on his words:

"If property ownership is to remain what our forefathers intended it to be, if it is to remain a part of the liberty we cherish, the economic by-products of a private capitalist's ability to develop land cannot justify a surrender of ownership to eminent domain. If a government agency can decide property ownership solely upon its view of who would put that property to more productive or attractive use, the inalienable right to own and enjoy property to the exclusion of others will pass to a privileged few who constitute society's elite. The rich may not inherit the earth, but they most assuredly will inherit the means to acquire any part of it they desire.

The attraction of private venture capital is a worthy public goal, and the legislature provided SWIDA with numerous ways to accomplish it. While this legislation offers unquestionable potential for the kind of social and economic advancement that follows capital investment, it exceeds sacred parameters when it empowers SWIDA to lure private investors with the promise of any prime land those investors want to take.

This part of SWIDA's statutory power offers dubious progress. It is, after all, akin to the tyranny our forefathers fled. Our heritage stems in part from the aversion to the King's use of property to convey favor upon a privileged nobility. It betrays that heritage to rekindle the practice." 304 Ill. App. 3d at 556 (Kuehn, J., specially concurring).

For the foregoing reasons, I dissent.

JUSTICE THOMAS and JUSTICE KILBRIDE join in this dissent.

JUSTICE KILBRIDE, also dissenting:

I fully agree with Chief Justice Harrison and I join in his dissent. I feel compelled, however, to offer some additional observations because the power of eminent domain is one of the most absolute, forceful, and intrusive civil powers of government. The taking in this case carries "the right of eminent domain to an alarming and dangerous extent." Gaylord v. Sanitary District, 204 Ill. 576, 585 (1903). Today, we are overlooking established precedent and allowing an unconstitutional taking of private property. Accordingly, in addition to the reasons set forth by Chief Justice Harrison, I briefly dissent for the following reasons.

The right of the sovereign to condemn private property is limited to takings for a public use. U.S. Const., amend. V; Ill. Const. 1970, art. I, §15; Gaylord, 204 Ill. at 588. The majority correctly notes that private persons may ultimately acquire ownership of property arising out of a taking and the subsequent transfer to private ownership does not by itself defeat the public purpose. Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (1984). Nevertheless, this case is not about the ultimate transfer of property to a private party. Rather, the precise and controlling issue is whether the development authority could transfer the property to a private party for a profit when the property is not put to a public use?

The resolution of that issue depends on whether the taking and the transfer of property achieves a legitimate legislative purpose and a public use pursuant to the constitutionally exercised police power of the government. Berman v. Parker, 348 U.S. 26, 99 L. Ed. 27, 75 S. Ct. 98 (1954). Berman cautions that defining the police power's reach turns on the facts of each case. Berman, 348 U.S. at 31-32, 99 L. Ed. at 37, 75 S. Ct. at 102. In this case, the facts do not justify the exercise of the police power of eminent domain.

To review some of the key facts in this case, the power of eminent domain was exercised solely to acquire additional parking for the racetrack. In the initial phase of development and without any eminent domain proceedings, Gateway racetrack employed the bonding authority of Southwestern Illinois Development Authority (SWIDA) to acquire land for the racetrack and to develop the land into a financially viable racing facility. Upon building and operating a successful racing facility, Gateway later decided that it needed additional parking because of increasing attendance. The need for additional parking was a direct result of Gateway's successful operations.

In 1997, Gateway initially had a total seating capacity of 50,000. Throughout 1997, Gateway successfully hosted a number of events with total attendance of 400,000. In 1998, Gateway increased its seating capacity and it hosted at least four major race events. Gateway wanted additional seating for a total capacity of 85,000 to 100,000 for each event. In short, Gateway's success and increased seating capacity drove Gateway's need for additional parking.

To obtain additional parking, Gateway sought to purchase NCE's land, but Gateway could not negotiate a favorable purchase price. Gateway then requested that SWIDA exercise its eminent domain authority for the acquisition of NCE's land. SWIDA agreed.

Was SWIDA then furthering its legislative mandate to encourage economic development or was it merely assisting the purely private rapaciousness of Gateway?

A major flaw in justifying the exercise of eminent domain in this case is that the taking is not clothed in an independent, legitimate governmental decision to further a planned public purpose. SWIDA did not conduct a parking study. SWIDA never formulated any economic plan requiring additional parking. In fact, all of SWIDA's public policy pronouncements at the time of the quick-take hearing were after-the-fact rationalizations.

SWIDA's true intentions were demonstrated when SWIDA publicly advertised in a "Quick-Take Application Packet" that, for a fee, SWIDA would condemn land at the request of "private developers" for the "private use" of developers. SWIDA also entered into a contract with Gateway to condemn whatever land "may be desired *** by Gateway." Obviously, the impetus for the taking was not born of SWIDA's legislative and economic development planning process. Rather, it was solely in response to Gateway's expansion plans. More precisely, it was spawned by Gateway's failed attempts to purchase NCE's land at a price acceptable to Gateway.

One of the most alarming facts in the record is that Gateway certainly could have built a parking facility on its existing property. Gateway realized, however, that the cost of building a parking garage on its own land was substantially higher than using the power of SWIDA to take NCE's land for open field parking. The additional parking on NCE's land now makes it possible for Gateway to realize an extra $13 million to $14 million in projected revenue per year. Thus, I submit that the taking in this case smacks of nothing more than the misuse of governmental power for the purely private purposes of expanding a thriving racing facility, saving money for Gateway on the purchase of the property, and increasing Gateway's profits.

The precedential danger inherent to the Gateway eminent domain scenario is that it takes us down the perilous, proverbial "slippery slope" and it blurs the line of the public purpose test. We might compare the initial development for the race facility to the taking of land for gas stations along a toll road. A highway toll authority may justify the use of eminent domain to ensure that motorists have reasonable access to gasoline stations. Illinois State Toll Highway Comm'n v. Eden Cemetery Ass'n, 16 Ill. 2d 539, 546 (1959). The next step is, however, the dangerous step similar to the facts in this case. Could the highway authority then exercise eminent domain to augment a financially viable gas station to condemn additional land for a car wash, and then a lube shop, and then additional expansions for a motel, small retail shops, and entertainment centers? The initial, legitimate development of a public project does not justify condemnation for any and all related business expansions.

Undoubtedly, the declaration of a public purpose is much easier when the only players are governmental units. When the taking involves private parties as the ultimate recipients of the land, it becomes increasingly difficult to balance the legitimate public purpose against the bestowal of private benefit. There may not be a bright-line test for determining when the taking is so weighted in favor of private benefit that it has no legitimate public purpose. Nonetheless, I believe that this case improperly tips the balance in favor of a purely private benefit without a sufficient showing of a legitimate public purpose. In short, the condemnation was an end run around the open real estate market. The acquisition of the land by Gateway served the goal of economic development only by increasing its profits on its already successful operations.

On related matters, the majority bases its decision upon our past precedent of assisting economic development, preventing or eliminating blight, and promoting public safety. Slip op. at 19-20. The majority reasons that SWIDA is merely fulfilling one or more of those proper legislative purposes in acquiring the land for parking.

That rationale and the majority's cited authority are problematic for several reasons. First, the additional parking is not directly preventing or eliminating blight on the site of the expanded parking area. The site of the new parking is open ground and contains no dilapidated structures. Admittedly, the expanded development eases the parking crunch for the additional crowds, thereby increasing sales, possibly boosting an economic spinoff, and in effect theoretically reducing blight. Despite any possible abstract attainment of blight reduction, the taking in this case does not directly impact that goal. A business improvement's indirect benefit to the public is insufficient to justify condemnation. See Gaylord, 204 Ill. at 586, quoting Byerson v. Brown, 35 Mich. 333, 336-42 (1877). Therefore, with respect to blight, the Gateway parking project does not satisfy the public benefit test.

Additionally, the purported goal of public safety is in fact a false rationale to justify Gateway's private parking needs. Gateway's need for increased parking is directly related to its success and its expansionist decision to increase grandstand seating. To the extent that Gateway's operations create any public safety, parking concern, the appropriate local governmental response should have been to enforce the typical zoning regulation that a business may only operate when it can provide adequate parking for customers. See Thomas v. Zoning Board of Appeals, 72 Ill. App. 3d 934 (1979) (enforcing zoning requirement that business provide off-street parking for customers). When the facts in this case are viewed in the context of how local governments commonly handle parking issues, the condemnation of private property for parking defies common sense and all notions of fundamental fairness.

Next, the promotion of economic development has already been satisfied through the initial successful development of the racetrack. Simply put, NCE's land is not fundamental or "pivotal" to Gateway's economic success or to the general economy within SWIDA's jurisdiction. NCE's land is pivotal only to assure Gateway's higher profits.

The continued economic development of Gateway's private business directly benefits a private concern. Moreover, it is illogical to use Gateway's underlying success as the predicate for correcting "economic deterioration" in furtherance of a legislative goal to improve economic development. Furthermore, even though a viable business enterprise indirectly impacts the general local economy in St. Clair County, a legitimate public purpose is not satisfied when the taking operates principally to augment a private business. See Sholl v. German Coal Co., 118 Ill. 427, 431-34 (1887).

Moreover, the authority cited in the majority opinion does not squarely support the result in this case. The majority primarily relies upon McMackin, Paley, and Crouch. None of those three cases involve eminent domain and a development authority statute similar to the SWIDA Act.

McMackin is not an eminent domain case. McMackin is an original mandamus action to compel a home rule mayor to sign development bonds and a lease under the Industrial Project Revenue Bond Act.

McMackin is cited as authority in Paley, another mandamus action to compel a mayor to execute bonds for commercial development and the elimination of blight. McMackin and Paley are also cited in Crouch, again another mandamus action to compel a mayor to sign bonds in eliminating blight under the tax increment financing statute.

Without a doubt, all three of those cases recognize that economic development is a public purpose. None of those cases are, however, eminent domain cases and they provide no authority for the taking of private property for the specific purpose of economic development. Those cases simply justify the expenditure of public funds for the elimination of blighted areas and the attendant positive effect on economic development. That distinction is not without importance. The compelling difference is that the long-standing sacred right of ownership of private property must not yield to the promotion of economic development by assisting purely private business ventures.

Equally important, the majority's decision overlooks long-standing eminent domain doctrines that a successful business might indirectly benefit the public, but indirect benefits do not justify eminent domain. Gaylord, 204 Ill. at 586, quoting Byerson v. Brown, 35 Mich. at 336-42. Gaylord explained that every lawful business incidentally benefits the public. Gaylord, 204 Ill. at 586. Almost 100 years ago, Gaylord pronounced that it is "the settled doctrine of this court that to constitute a public use, something more than a mere benefit to the public must flow from the contemplated improvement." Gaylord, 204 Ill. at 584.

Gaylord firmly instructed that"[t]he public must be to some extent entitled to use or enjoy the property, not as a mere favor or by permission of the owner, but by right." Gaylord, 204 Ill. at 584. Here, the racetrack may be open to the public, but not by right, and only by permission through the payment of admission fees. The Gateway racing operation may provide some public enjoyment, but it is a private venture designed to result in private profits. Gateway's parking lot is simply not a public use.

In 1926 this court held that a railroad could not exercise the right of eminent domain to acquire property for the purpose of constructing a spur track and public freight house. Our court found that a spur track and public freight house provided a minimal public benefit and principally benefitted the railroad and a few businesses. Limits Industrial R.R. Co. v. American Spiral Pipe Works, 321 Ill. 101, 109-10 (1926). Despite a certificate of convenience and necessity issued by the Illinois Commerce Commission, our court found that it was manifest that the railroad was not organized to serve the general public or any other public purpose. Based on that finding, Limits Industrial reversed the railroad's condemnation judgment.

Limits Industrial is strikingly similar to this case. Just as Limits Industrial challenged the Illinois Commerce Commission's findings of a public demand and necessity for a railroad public freight-receiving station and spur track, this court should question SWIDA's findings and declare that the additional parking principally serves the goal of saving money for Gateway instead of fostering SWIDA's statutory mandate. Our court recognized in Limits Industrial that when the true beneficiaries of the take are private businesses and not the public, the power of eminent domain will not be exercised to serve those purely private interests.

Limits Industrial rejected the Illinois Commerce Commission's findings of public convenience and necessity as "a subterfuge to give color of right to the attempt to condemn" the land for the private benefit of a select few. Limits Industrial, 321 Ill. at 110. Now some 75 years later, the same subterfuge is playing out before us. The railroad freight station is now a parking lot and SWIDA's actions are simply a ruse to cloak a private enterprise in the garb of a public project.

Therefore, I respectfully dissent.

CHIEF JUSTICE HARRISON and JUSTICE THOMAS join in this dissent.


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