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Department of Transporation v. Sunnyside Partnership

February 20, 2003


Appeal from the Circuit Court of Madison County. No. 02-ED-3 Honorable Ralph J. Mendelsohn, Judge, presiding.

Justices: Honorable Clyde L. Kuehn, J. Honorable Richard P. Goldenhersh, J., and Honorable James K. Donovan, J., Concur

The opinion of the court was delivered by: Justice Kuehn


By Supreme Court Rule 307(a)(7) (166 Ill. 2d R. 307(a)(7)), The Sunnyside Partnership, L.P. (Sunnyside), files this interlocutory appeal as of right from the trial court's June 7, 2002, order finding that the Illinois Department of Transportation (IDOT) has the authority to exercise the right of eminent domain over property owned by Sunnyside, that Sunnyside's property is subject to IDOT's exercise of eminent domain, and that IDOT is not improperly exercising its right of eminent domain. We affirm.


Sunnyside owns an 80-acre nursery in Glen Carbon, Illinois. The nursery has been in the Foucek family for approximately 60 years. The nursery is located just west of Highway 159-a road that runs in a north-south direction in that area. The land has been farmed for more than 200 years. In recent years, the area surrounding the nursery has become rather extensively, commercially developed.

For 40 years, there has been discussion about possible road construction across a portion of the nursery. IDOT's initial conception was a project labeled the "South Bypass." That bypass would not have stopped at Highway 159 but would have gone some miles past it. The bypass project contemplated taking the same nursery land sought in this case. Environmental studies were conducted, and much land was obtained by purchase, although the nursery land was not included in what was purchased. However, funding for the project never fully materialized, and IDOT abandoned its bypass plans.

Highway 159 is a state highway that, in part, traverses Glen Carbon and Edwardsville. That corridor has been the sight of incredible expansion in recent years. That growth has resulted in renewed interest in road projects in the area. During 1995 and 1996, IDOT decided that it was necessary to relocate Highway 159 to the west, running parallel to the existing Highway 159. This relocation was deemed necessary to ease traffic congestion. The relocated Highway 159 will abut the west side of the Sunnyside nursery.

The relocation plans include four roads that will connect old Highway 159 with new Highway 159. One of these roads, Center Grove Road, is located approximately 2,000 feet south of the nursery property at issue in this case. Early in its highway relocation planning, IDOT investigated the possibility of constructing an additional connector road-called the "East-West Connector." Several options were considered, studied, and rejected. Finally, IDOT settled upon a location that ran between the nursery and land owned by Madison County. This property line alignment became known as the "Kmart alignment," because of its alignment with the entrance to a Kmart shopping center on the opposite side of old Highway 159. IDOT sought and obtained design approval for this Kmart alignment.

While IDOT felt that the decision was complete, Madison County and the City of Edwardsville maintained larger-scale plans for this connector road. They wanted to resurrect the bypass option originally contemplated 40 years ago. Constructing a bypass would also greatly serve to alleviate traffic congestion. They met with IDOT officials and sought to have this alignment road constructed in the location originally considered for the bypass, south of the proposed Kmart alignment and directly through the nursery property. The Madison County property would not abut or otherwise have direct access to this newly proposed connector road.

IDOT was willing to be involved with this project but did not want the project identified as a bypass. IDOT's agreement was related to a connector road and not a full bypass. The foundation for IDOT's concern is unknown. Perhaps IDOT's trepidation was grounded in the fact that its environmental studies were now 40 years old and would have to be completely redone in order for IDOT to participate in the bypass project. Perhaps IDOT lacked the funding to fully participate in the bypass project. We do not know the reason, but we do know that IDOT required the omission of the word "bypass" from documentation relative to this connector road. IDOT required written concurrences regarding the project change. IDOT needed concurrences from the Village of Glen Carbon and the City of Edwardsville, as well as from Madison County. All three entities expressed their concurrences with reference to the bypass project. IDOT asked all three entities to rewrite the concurrences and omit the word "bypass" and substitute the word "connector." All three entities resubmitted revised concurrences in keeping with IDOT's wishes.

While Madison County and the City of Edwardsville desired this major change in the IDOT project, neither the county nor the city had legislatively granted quick-take power, and so neither of them could have taken the property from Sunnyside if Sunnyside was unwilling to sell. IDOT did have quick-take authority. Sunnyside was unwilling to sell. IDOT was forced to exercise its quick-take power.

By agreement, after IDOT completes the construction of this connector road, IDOT will turn the road over to the county so that Madison County remains responsible for all necessary maintenance. Testimony adduced at the hearing explained that transferring the road to county control made sense in light of the fact that the remainder of the bypass project, after completion, would be owned and maintained by Madison County.

The Madison County land that would have been impacted by the Kmart alignment will now be isolated from the connector-road project. After IDOT finalized its plans to move the connector road from the Kmart alignment to the location through the Sunnyside nursery, the City of Edwardsville and Madison County teamed up in an intergovernmental agreement to market and sell this property to private real estate developers.

On February 14, 2002, IDOT filed its complaint for condemnation. On March 1, 2002, IDOT also filed a quick-take motion seeking the immediate vesting of title to the property. IDOT filed an essentially identical motion on March 12, 2002. On March 7, 2002, Sunnyside filed a traverse and motion to dismiss raising numerous issues. Those issues were taken up by the court at the quick-take hearing, which began on May 28, 2002. Nine witnesses, including representatives of IDOT, Madison County, the City of Edwardsville, and the Village of Glen Carbon, as well as Joanne Foucek, Sunnyside's sole living partner, testified at the hearing. On June 7, 2002, the circuit court denied Sunnyside's motion, found that IDOT had the authority to take the nursery property, and concluded that IDOT had properly exercised its authority.

Sunnyside appealed this order and sought a stay of proceedings in the circuit court. The circuit court denied Sunnyside's motion. Sunnyside then asked this court to stay the proceedings. We granted that motion on July 24, 2002.


Eminent domain is a term that refers to the state's power to take private property. Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 304 Ill. App. 3d 542, 546, 710 N.E.2d 896, 899 (1999) (citing E. Meidinger, The "Public Uses" of Eminent Domain: History & Policy, 11 Envtl. L. 1, 2 (1980)), aff'd, 199 Ill. 2d 225, 768 N.E.2d 1 (2002). Our state and federal constitutions prohibit the taking of private property for public use without just compensation. Ill. Const. 1970, art. I, ยง15; U.S. Const., amends. V, XIV. Throughout our country's history, our governments have taken land primarily for the construction of roads and dams. Southwestern Illinois Development Authority, 304 Ill. App. 3d at 546, 710 ...

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