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Dep't of Transportation State of Illinois v. Lowderman

August 10, 2006

DEPARTMENT OF TRANSPORTATION STATE OF ILLINOIS PLAINTIFF-COUNTER-DEFENDANT-APPELLEE
v.
LOWDERMAN, LLC AND UNKNOWN OWNERS, DEFENDANT -APPELLANT.



Appeal from the Circuit Court for the 9th Judicial Circuit, McDonough County, Illinois. 03-ED-10. Honorable John R. Clerkin, Judge, Presiding.

The opinion of the court was delivered by: Justice McDADE

Published opinion

This appeal originates from a complaint for condemnation brought by plaintiff-counter-defendant Illinois Department of Transportation ("IDOT") which sought to condemn a portion of property belonging to defendant-counter-plaintiff Lowderman, LLC ("Lowderman"). Specifically, Lowderman appeals from an order of the circuit court of McDonough County denying Lowderman's motion that the jury be allowed to determine damages resulting from IDOT's extinguishment of access rights to U.S. Route 136. The trial court ruled that because reasonable access is guaranteed to state highways by 605 ILCS 5/4-210, the Lowderman remainder cannot be landlocked. For the reasons that follow, we affirm the judgment of the circuit court on different grounds.

Two issues are before this court on appeal: 1) whether the trial court erred in finding that the Lowderman remainder is insulated from landlocking because reasonable access is guaranteed to state highways by 605 ILCS 5/4-210; and 2) have all of Lowderman's access rights to U.S. Route 136 been extinguished as a result of IDOT's condemnation, thereby entitling him to have the jury consider damages for the taking of such rights. As to the first issue, reading the limiting language of section 4-210 in conjunction with the permissive language of section 8-102, it would be improper to read into section 4-210 a prohibition on a governmental entity's power to landlock property abutting a freeway. Therefore, the trial court did err in finding that the State cannot landlock the Lowderman remainder. As to the second issue, although Lowderman claims that the taking results in the loss of all his access rights to U.S. Route 136, the case-law he cites in support of this assertion is simply inapplicable. Lowderman's cited cases deal with a landowner deeding his property to the State, whereas here, it is the State condemning the property and then substituting a frontage road. Furthermore, 605 ILCS 5/4-210 controls in that it guarantees Lowderman a reasonable right of access by way of the frontage road. This right is protected until the State limits such access pursuant to law at which point Lowderman would be entitled to additional just compensation.

FACTS

IDOT filed a complaint for condemnation in the McDonough Circuit Court. The complaint sought to condemn a portion of certain property belonging to Lowderman located adjacent to U.S. Route 136. The complaint stated that it was necessary for IDOT to acquire all access rights to U.S. Route 136 of the remaining property owned by Lowderman. The complaint also stated that "access to the remaining land of the grantor shall be provided by way of a frontage road along the grantor's southerly property line." A quick-take hearing was held and Lowderman filed a counterclaim for damages to the Lowderman remainder.

Lowderman also filed a motion requesting a preliminary ruling on whether the jury could consider Lowderman's claims that: 1) the taking of direct access of the Lowderman remainder to U.S. Route 136 and the substitution of a frontage road resulted in a material impairment of access and damages to the Lowderman remainder; and 2) the taking of the access rights of the Lowderman remainder to U.S. Route 136 resulted in damages to that remainder.

After hearing argument, the trial court agreed with Lowderman's claim that the jury can determine damages resulting from the taking of direct access of the Lowderman remainder to U.S. Route 136 and the substitution of the frontage road. However, the court denied Lowderman's claim that the jury can determine damages resulting from IDOT's extinguishment of access rights to U.S. Route 136. The trial court ruled that because reasonable access is guaranteed to state highways by 605 ILCS 5/4-210, the Lowderman remainder cannot be landlocked and therefore, Lowderman still possessed certain access rights. Consequently, the court found that the jury could not consider damages resulting from the extinguishment of all access rights of the remainder. Lowderman filed a motion to reconsider which was subsequently denied. The trial court then certified Lowderman's right to appeal pursuant to Illinois Supreme Court Rule 304(a).

STANDARD OF REVIEW

It is a question of law for the court to determine in the first instance whether there has been an actionable taking or material impairment of access which entitles the property owner to compensation. The Department of Public Works & Buildings v. Wilson & Co., 62 Ill. 2d 131, 141, 340 N.E.2d 12, 17 (1975). Questions of law are reviewed de novo. Arthur v. Catour, 216 Ill. 2d 72, 78, 833 N.E.2d 847, 851 (2005).

ANALYSIS

The first issue we must examine on appeal is whether the trial court erred in finding that because reasonable access is guaranteed to state highways by 605 ILCS 5/4-210, the Lowderman remainder cannot be landlocked. Two statutes are relevant to this analysis: 1) 605 ILCS 5/4-210; and 2) 605 ILCS 5/8-102.

Section 4-210 states:

"Except where the right of access has been limited by or pursuant to law every owner or occupant of property abutting upon any State highway shall have reasonable means of ingress from and egress to the State highway consistent with the use being made of such property and not inconsistent with public safety or with the proper construction and maintenance of the State highway ...


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