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ILLINOIS EMINENT DOMAIN PRACTICE (IICLE®, 2016)
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ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
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ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
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ILLINOIS EMINENT DOMAIN
PRACTICE
2016
Chapter authors:
William L. Broom III
Leo N. Cinquino
John W. Damisch
B. Jay Dowling
Richard F. Friedman
Michele S. Gonzales
Valerie M. Moehle
Christopher J. Murdoch
Richard A. Redmond
Patricia A. Small
Mark J. Steger
Patrick J. Thornton
Joseph B. VanFleet
Robert J. Will
®
This 2016 edition revises and replaces the 2013 edition of the same title.
ILLINOIS INSTITUTE FOR
CONTINUING LEGAL EDUCATION
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ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
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ILLINOIS EMINENT DOMAIN PRACTICE
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Copyright 2016 by IICLE . All rights reserved.
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Printed in the United States of America.
16EMINDOM 8-16(584)AM
PRD: 8-26-16(CTP)
vi
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TABLE OF CONTENTS
Table of Contents
About the Authors ...................................................................................................................... ix
1. The Power of Eminent Domain: Introduction and Overview ........................................ 1 — 1
Richard F. Friedman
2. Initial Procedures and Pleadings of the State and Other Condemning Bodies ............ 2 — 1
Richard F. Friedman
3. Pleadings and Procedures by the Condemnee ................................................................. 3 — 1
B. Jay Dowling
4. Quick-Take........................................................................................................................... 4 — 1
Valerie M. Moehle
5. Eminent Domain Proceedings by Government Authorities Other than the State ....... 5 — 1
John W. Damisch
6. Pretrial Procedure ............................................................................................................... 6 — 1
Leo N. Cinquino
7. Valuation of Property in Eminent Domain ...................................................................... 7 — 1
Richard A. Redmond
Christopher J. Murdoch
8. Trial Procedure and Technique ......................................................................................... 8 — 1
William L. Broom III
9. Mandamus and Inverse Condemnation............................................................................ 9 — 1
Joseph B. VanFleet
10. Leasehold Damages and Awards in Eminent Domain .................................................. 10 — 1
Joseph B. VanFleet
11. Federal Eminent Domain Practice .................................................................................. 11 — 1
Robert J. Will
Patrick J. Thornton
12. Environmental Law Issues in Eminent Domain Litigation .......................................... 12 — 1
Michele S. Gonzales
Mark J. Steger
13. Appeals ............................................................................................................................... 13 — 1
Patricia A. Small
Index ..................................................................................................................................... a — 1
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
vii
ILLINOIS EMINENT DOMAIN PRACTICE
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ABOUT THE AUTHORS
About the Authors
William L. Broom III is a Partner at Barrett, Twomey, Broom, Hughes & Hoke, LLP in
Carbondale, where he concentrates his practice in civil litigation, estate planning, and eminent
domain. He is active in the Illinois State Bar Association. He is also a member of the American
Bar Association, the American Association for Justice, the Illinois Trial Lawyers Association,
and the Illinois CPA Society. Mr. Broom received his B.S. from the University of Illinois and his
J.D. from the University of Illinois College of Law.
Leo N. Cinquino is a member of Righeimer Martin & Cinquino, P.C., in Chicago, where he
concentrates his practice in eminent domain litigation. He served for 11 years as a Special
Assistant Attorney General for the State of Illinois for eminent domain cases. He is a member of
the American, Illinois State, and Chicago Bar Associations. He has lectured for the American
Institute of Real Estate Appraisers, the International Right of Way Association, the Society of
Municipal Engineers, ISBA, and IICLE® and was editor of the 1992, 1994, and 1996
supplements to Frank S. Righeimer, Jr., EMINENT DOMAIN IN ILLINOIS (Callaghan). Mr.
Cinquino is a graduate of Loyola University Chicago School of Law.
John W. Damisch is a Principal in Damisch & Damisch Ltd. in Chicago, where he focuses on civil
trial litigation. He is member of the American, Illinois State, Chicago, and DuPage County Bar
Associations. He has been a Special Assistant Attorney General for the State of Illinois handling
condemnation matters for the Illinois Departments of Transportation, Economic Development,
and Natural Resources and the Illinois State Toll Highway Authority. Mr. Damisch received his
B.S. and his J.D. from Northwestern University.
B. Jay Dowling is a Partner at Clayborne, Sabo & Wagner, LLP in Belleville, where he focuses on
eminent domain and real estate litigation. He is a member of the Illinois State, Missouri State,
and Energy Bar Associations. Mr. Dowling received his B.S. from Culver Stockton College and
his J.D. from St. Louis University School of Law. He is also a graduate of the Illinois State
Police Academy.
Richard F. Friedman is a Managing Attorney at Neal & Leroy, LLC in Chicago, where he
concentrates his practice in eminent domain, land use, litigation, and historic preservation. He
teaches historic preservation law at the University of Chicago Law School and in the graduate
program in historic preservation at the School of the Art Institute of Chicago. He is the
Director of the Chicago Art Deco Society and the Past Director and General Counsel of
Landmarks Illinois. He is also a frequent lecturer on eminent domain and historic
preservation topics. He received his B.S. from the University of Illinois at UrbanaChampaign and his J.D. from the University of Chicago Law School.
Michele S. Gonzales is a Founding Member of Elle Law Group, LLC in Oak Park, where she
devotes her practice to eminent domain and complex commercial litigation. She is a member
of the Illinois State and Chicago Bar Associations. She is a speaker and an author regarding
Illinois eminent domain law. Ms. Gonzales received her undergraduate degree from the
University of Chicago and her J.D. from IIT Chicago-Kent College of Law, where she was on
the Dean’s Honor List, a member of Moot Court, a legal writing assistant, and a research
assistant.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
ix
ILLINOIS EMINENT DOMAIN PRACTICE
Valerie M. Moehle is a Partner at Moehle, Swearingen & Assoc., Ltd., in Pekin, where she focuses
on real estate, including eminent domain, estate planning, guardianship and probate, small
business, and general civil litigation. She serves as a Special Assistant Attorney General for
eminent domain matters. She is a member of the Continuing Education Committee of the Peoria
County Bar Association and the Abraham Lincoln Court (formerly Abraham Lincoln Inn of
Court), where she was served as President in 2006 – 2007. Ms. Moehle received her B.S. with
high honors from the University of Illinois and her J.D. summa cum laude from Northern Illinois
University, where she was also a Notes and Comments Editor of the Law Review.
Christopher J. Murdoch is a Partner at Holland & Knight LLP in Chicago, where he focuses on
litigation. He is a member of the Federal Bar Association. Mr. Murdoch received his B.A. from
Georgetown University and his J.D. from the University of Michigan Law School.
Richard A. Redmond is a Partner with Holland & Knight LLP in Chicago, where he focuses on
eminent domain, land use litigation, and legal ethics. He is a member of the American, Illinois
State, and Chicago Bar Associations. The Illinois Supreme Court originally appointed him to its
Committee on Professional Responsibility in 1983, and he served as Chair of the committee in
1993 – 1997, 2008 – 2008, and 2013 – 2015. He was the Chair of the Board of Trustees of the
Chicago Academy of Sciences from 1990 – 1994. Mr. Redmond received his B.A. with honors
from the University of Notre Dame and his J.D. from Cornell Law School.
Patricia A. Small is an associate at Barrett, Twomey, Broom, Hughes & Hoke, LLP in Carbondale,
where she concentrates her practice in civil and appellate litigation and eminent domain matters.
She is a former law clerk for Chief Justice William C. Hastings of the Nebraska Supreme Court.
She has served as a Special Assistant Attorney General for land acquisition and real estate
matters since 1996. She is a member of the American and Illinois State Bar Associations. Ms.
Small received her B.S. in political science from the University of Nebraska-Omaha and her J.D.
from the University of Nebraska College of Law.
Mark J. Steger is General Counsel at Clark Hill PLC in Chicago, where he focuses on
environmental law. He is a member of the American Bar Association. He was named in Best
Lawyers in 2015. Mr. Steger received his B.S. and his M.S. in finance from the University of
Illinois and his J.D. from Seattle University School of Law.
Patrick J. Thornton is an associate at Lewis Rice LLC in St. Louis, where he focuses on
construction law, commercial litigation, and real estate litigation. He is a member of the
Missouri and Illinois State Bar Associations. He is also a member of the Missouri Bar
Leadership Academy Class of 2014 – 2015. Mr. Thornton received his B.A. cum laude from the
University of Notre Dame and his J.D. cum laude from Washington University in St. Louis
School of Law, where he was a Board Member of the Washington University Journal of Law
and Policy.
Joseph B. VanFleet is the Managing Member of the VanFleet Law Offices in Peoria, where he
concentrates his practice in commercial litigation. He is a member of the American and Illinois
State Bar Associations and the Abraham Lincoln Court (formerly Abraham Lincoln Inn of
Court). Mr. VanFleet received his B.S. with high honors from the University of Illinois and his
J.D. from the University of Illinois College of Law.
x
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ABOUT THE AUTHORS
Robert J. Will is a Member of Lewis Rice LLC in St. Louis, where he concentrates his practice in
matters related trust and estate litigation, commercial litigation, class actions, and condemnation.
He is a Fellow of the American Bar Foundation and a member of the Illinois State Bar
Association. He currently serves as Cochair for the American Bar Association’s Pretrial Practice
and Discovery Committee and is a former Cochair of the ABA’s committees on Homeless
Experience Legal Protection, Trust and Estate Litigation, and Zoning and Land Use. Mr. Will
received his B.A. summa cum laude from Saint Louis University and his J.D. with high honors
and Order of the Coif from George Washington University Law School.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
xi
ILLINOIS EMINENT DOMAIN PRACTICE
xii
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BOARD OF DIRECTORS
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ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
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xiii
STAFF OF THE INSTITUTE
ILLINOIS EMINENT DOMAIN PRACTICE
IICLE® Staff
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Administrative Services
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Readers may contact staff members via e-mail at [email protected] or
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xiv
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1
The Power of Eminent
Domain: Introduction and
Overview
RICHARD F. FRIEDMAN
Neal & Leroy, LLC
Chicago
®
©COPYRIGHT 2016 BY IICLE .
1—1
ILLINOIS EMINENT DOMAIN PRACTICE
I. [1.1] Overview
II. [1.2] The Power, Its Source, and Its Limitations
III. [1.3] The 2007 Illinois Eminent Domain Act
IV. Authority To Exercise the Power of Eminent Domain
A. [1.4] State of Illinois
B. [1.5] Local Government
C. [1.6] Condemnation by Utilities
V. The Exercise of the Power of Eminent Domain: A Typical Eminent Domain Action
A. [1.7] Prerequisites to Filing the Complaint
1. [1.8] Authority, Public Purpose, and Necessity
2. [1.9] Negotiation with Property Owner
B. Filing the Complaint
1. [1.10] Contents of the Complaint
2. [1.11] Public Utilities
3. [1.12] Common Elements
4. [1.13] Service of Process
5. [1.14] Lis Pendens
6. [1.15] Answer and Cross-Petition
7. [1.16] Traverse — Attacks on the Propriety of the Complaint
a. [1.17] Authority, Public Purpose, and Necessity
b. [1.18] Legal Description
c. [1.19] Attempt To Agree on Compensation
d. [1.20] Illinois Commerce Commission Approval
C. [1.21] Discovery
1. [1.22] Discovery of Facts or Documents
2. [1.23] Discovery of Witnesses
D. [1.24] Trial
1. [1.25] Motions in Limine
2. [1.26] View of the Property
3. [1.27] Testimony and Evidence
4. [1.28] Jury Instructions
5. [1.29] Abandonment
E. [1.30] Posttrial
1. [1.31] The Judgment Order
2. [1.32] Deposit
3. [1.33] Motion To Vest Title
1—2
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THE POWER OF EMINENT DOMAIN: INTRODUCTION AND OVERVIEW
4. [1.34] Withdrawing the Deposit
5. [1.35] Property Taxes
VI. [1.36] Use of Eminent Domain for Urban Redevelopment
VII. [1.37] Quick-Take
VIII. [1.38] Relocation
IX. Appendix
A. [1.39] Illinois Statutes Granting the Power of Eminent Domain
B. [1.40] Provisions of Eminent Domain Act Granting the Power of Eminent Domain
Through Quick-Take Proceedings
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
1—3
§1.1
ILLINOIS EMINENT DOMAIN PRACTICE
I. [1.1] OVERVIEW
This handbook sets forth in significant detail the various components of an eminent domain,
or governmental condemnation, action. It is designed to give the practitioner background on basic
principles of eminent domain in short order. This handbook is not a complete treatise on the
subject, but is intended as a practical guide to help attorneys with the issues that they frequently
encounter in eminent domain cases.
The goal of this introductory chapter is to address the following basic questions concerning
the power of eminent domain:
a. What is the power of eminent domain, and what are its limitations?
b. What is the source of the power of eminent domain?
c. Who can exercise the power of eminent domain?
d. How is the power of eminent domain exercised?
This chapter also provides a skeletal outline of a typical eminent domain action in Illinois
courts, from the prefiling stage to the vesting of title in the condemning authority. This outline is
not exhaustive, and the other chapters in this handbook explain, in detail, many of the significant
factors of which the practicing attorney must be aware of in preparing and litigating an eminent
domain case.
II. [1.2] THE POWER, ITS SOURCE, AND ITS LIMITATIONS
Eminent domain is the power of the sovereign to condemn or appropriate private property for
public use. The power is inherent in the sovereign and exists separately from any constitution or
statutory laws. Department of Public Works & Buildings v. Kirkendall, 415 Ill. 214, 112 N.E.2d
611 (1953); Department of Public Works & Buildings v. McNeal, 33 Ill.2d 248, 211 N.E.2d 266
(1965). The sovereign has the right to assume possession of all real property held by its subjects.
Every person who acquires or occupies land does so at the risk of being evicted by exercise of the
superior right of the state. Green Street Ass’n v. Daley, 373 F.2d 1, 6 (7th Cir.), cert. denied, 87
S.Ct. 2054 (1967).
The source of the power of eminent domain predates our state and federal Constitutions.
Constitutional provisions and statutes do, however, limit and regulate the power of eminent
domain. See McNeal, supra. For example, the Fifth and Fourteenth Amendments to the United
States Constitution provide, in pertinent part:
No person shall be . . . deprived of life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just compensation.
U.S.CONST. amend. V.
1—4
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THE POWER OF EMINENT DOMAIN: INTRODUCTION AND OVERVIEW
§1.2
***
No State shall . . . deprive any person of life, liberty, or property, without due
process of law. U.S.CONST. amend. XIV, §1.
The Illinois Constitution provides:
Private property shall not be taken or damaged for public use without just
compensation as provided by law. Such compensation shall be determined by a jury
as provided by law. ILL.CONST. art. I, §15.
Traditionally, the sovereign could appropriate private property without limitation. Today, a
governmental entity is authorized to acquire private property only for a necessary public use. But
as recently as the 19th century, no public-use requirement existed. See Missouri Pac. Ry. v. State
of Nebraska ex rel. Board of Transportation, 164 U.S. 403, 41 L.Ed. 489, 17 S.Ct. 130 (1896).
While the public-use and necessity requirements are pivotal under modern eminent domain law,
the enormous expansion of the range of governmental services has severely diluted both
requirements. See Deerfield Park District v. Progress Development Corp., 26 Ill.2d 296, 186
N.E.2d 360 (1962), cert. denied, 83 S.Ct. 1692 (1963); City of Oakbrook Terrace v. LaSalle
National Bank, 186 Ill.App.3d 343, 542 N.E.2d 478, 134 Ill.Dec. 299 (2d Dist. 1989).
While the concept of eminent domain arguably existed as far back as ancient Greece and
Rome, it truly came into focus during the development of the English law. The British monarch
could employ one of several procedures to acquire property for public use. Errol E. Meidinger,
The “Public Uses” of Eminent Domain: History and Policy, 11 Envtl.L. 1, 7, 9 (1980)
(Meidinger). For example, the common law recognized that the monarch had the prerogative to
enter private property to defend against either a public enemy or the inroads of the sea. Julius L.
Sackman et al., NICHOLS’ THE LAW OF EMINENT DOMAIN §1.21, p. 1-71 (rev. 3d ed.
2007). The monarch enjoyed the rights of purveyance and preemption, which enabled him or her
to seize provisions for the use of the royal household without consent of the owner, but which
also obliged the monarch to pay for these provisions at a fair price. The monarch could also
employ the ancient proceeding known as “inquest of office.” This proceeding bears the strongest
resemblance to today’s eminent domain. Inquest of office is an inquiry by jurors into any matter
that entitled the monarch to the possession of lands, tenements, goods, and chattels.
In America, the use of eminent domain occurred early in the settlement of the colonies and
developed rapidly as the need for roads, public facilities, and industry grew. By the end of the
colonial period, eminent domain was well established as a legal form. In addition, compensation
was routinely, although not universally, paid, and some form of legal proceeding was regularly
available. Meidinger, pp. 15 – 16.
Shortly after the American Revolution, the use of eminent domain expanded from public
roads and buildings to private facilities. However, challenges to the increasingly private use of
eminent domain were not formally raised until the process was well under way. In 1832, several
defendant-property owners challenged a New Jersey statute granting a private corporation the
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right to acquire land for 70 mill sites along a six-mile stretch of the Delaware River. Scudder v.
Trenton Delaware Falls Co., 1 N.J.Eq. 694 (Ch. 1832). The court upheld the statute on the
ground that the community as a whole would benefit. By 1870, similar acts had been upheld in
seven states. Meidinger, pp. 23 – 24.
Judicial sanction of these statutes spawned opposition. A number of courts, led by those in
New York, struck down private eminent domain authorizations, stating that the Public Use Clause
in the Fifth Amendment literally meant “use by the public.” Meidinger, p. 24. In 1896, the United
States Supreme Court held explicitly that the Fifth Amendment public-use requirement applied to
the states through the Due Process Clause of the Fourteenth Amendment. Missouri Pac. Ry.,
supra. Although the Court subsequently established loose standards for the public-use
requirement and allowed the states great latitude in delegation of that power, it did seek to
prevent abuses by tightening the compensation requirement. See United States v. Lynah, 188 U.S.
445, 47 L.Ed. 539, 23 S.Ct. 349 (1903).
Originally, the courts viewed the public-use standard in such a manner as to allow practically
any taking, but left some room for invalidation if the taking had no public benefit or was a clear
abuse of discretion. See Deerfield Park District, supra. Subsequently, decisions in Illinois and in
other states indicated that some courts were beginning to take a more stringent view of what
constitutes a public use, especially in cases in which the property being condemned was part of an
economic redevelopment project and the land would be transferred to a private property owner.
See Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 199
Ill.2d 225, 768 N.E.2d 1, 263 Ill.Dec. 241 (2002). See also County of Wayne v. Hathcock, 471
Mich. 445, 684 N.W.2d 765 (2004) (holding that exercise of power of eminent domain violated
Michigan Constitution when done to transfer property to private developer). Other states,
however, had taken positions contrary to the Southwestern Illinois Development Authority and
Hathcock decisions. In those cases, the courts had approved condemning property to be
transferred to private property owners as part of an economic development plan. See Kelo v. City
of New London, 268 Conn. 1, 843 A.2d 500 (2004); General Building Contractors, L.L.C. v.
Board of Shawnee County Commissioners of Shawnee County, Kansas, 275 Kan. 525, 66 P.3d
873, 882 – 883 (2003). In light of this conflict among the states regarding the propriety of
condemning land for such economic development projects, the United States Supreme Court
granted a writ of certiorari in Kelo to decide whether such takings comport with the Fifth
Amendment of the United States Constitution.
In 2005, the United States Supreme Court issued its controversial decision in Kelo v. City of
New London, Connecticut, 545 U.S. 469, 162 L.Ed.2d 439, 125 S.Ct. 2655 (2005). That decision,
which was decided by a five-four vote, reaffirmed prior United States Supreme Court decisions
that had broadly defined the “public-use standard” (see, e.g., Berman v. Parker, 348 U.S. 26, 99
L.Ed. 27, 75 S.Ct. 98 (1954) (taking to consolidate land for private urban development); Hawaii
Housing Authority v. Midkiff, 467 U.S. 229, 81 L.Ed.2d 186, 104 S.Ct. 2321 (1984) (taking of fee
interest of leased property to convey it to lessee)), at least when a proposed taking was done
pursuant to a comprehensive plan and after careful consideration. The Supreme Court’s decision
in Kelo generated great opposition from the public and state legislatures. Moreover, since Kelo
was decided, several state courts have interpreted state constitutional provisions to impose a more
restrictive view of what constitutes a public purpose, especially with respect to condemnations for
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economic redevelopment. See City of Norwood v. Horney, 110 Ohio St.3d 353, 853 N.E.2d 1115
(2006); Board of County Commissioners of Muskogee County v. Lowery, 136 P.3d 639 (Okla.
2006).
III. [1.3] THE 2007 ILLINOIS EMINENT DOMAIN ACT
After the Supreme Court’s decision in Kelo v. City of New London, Connecticut, 545 U.S.
469, 162 L.Ed.2d 439, 125 S.Ct. 2655 (2005), Illinois adopted the Eminent Domain Act (EDA),
735 ILCS 30/1-1-1, et seq., effective January 1, 2007. The EDA replaced the prior eminent
domain statute, Article VII of the Code of Civil Procedure, former 735 ILCS 5/7-101, et seq. The
EDA does not apply to eminent domain proceedings filed before its effective date. Note,
however, that a complaint filed before the effective date but amended after the effective date may
be subject to the EDA. City of Joliet v. Mid-City National Bank of Chicago, No. 05 C 6746, 2012
WL 5463792 (N.D.Ill. Nov. 5, 2012).
It should also be noted that the EDA does not apply to property acquisitions under the O’Hare
Modernization Act, 620 ILCS 65/1, et seq., or those in furtherance of an “existing tax increment
allocation redevelopment plan,” which is defined in 735 ILCS 30/5-5-5(a-10) as “a
redevelopment plan that was adopted under the Tax Increment Allocation Redevelopment Act[,
65 ILCS 5/11-74.4-1, et seq.,] prior to April 15, 2006 and for which property assembly costs
were, before that date, included as a budget line item in the plan or described in the narrative
portion of the plan as part of the redevelopment project.”
This chapter covers highlights of the changes adopted in the EDA. However, attorneys should
review the entire EDA to become familiar with that Act’s provisions. It should be noted that §55-5 creates many categories of eminent domain taking, with different standards applying
depending on which taking category is at issue. Those categories, among others, include (a)
takings in which the condemning authority acquires property for public ownership and control
(e.g., highways, parks, etc.); (b) takings in which the condemning authority acquires the property
for public ownership but the property will be privately controlled (e.g., airports); (c) takings in
which the condemning authority acquires blighted property for private ownership and control;
and (d) takings in which the condemning authority acquires property for private ownership and
control but the acquired property is not blighted.
The EDA also contains significant changes relating to litigation costs. Prior to the adoption of
the EDA, condemnation cases generally held that the parties to a condemnation action were
required to pay their own attorneys’ fees and litigation costs (unless the condemning authority
abandoned the case or a traverse was granted). The EDA, however, includes provisions that could
shift a property owner’s or tenant’s attorneys’ fees, as well as certain litigation costs, to the
condemning authority. For example, 735 ILCS 30/10-5-65 requires a condemning authority to
pay a property owner’s reasonable attorneys’, appraisal, and engineering fees if the authority is
required to initiate condemnation proceedings as a result of an inverse condemnation lawsuit. 735
ILCS 30/10-5-110 allows a property owner to recover certain fees in distinct categories of takings
(e.g., takings for private ownership and control) if the jury awards just compensation in an
amount equal to or in excess of a property owner’s settlement demand.
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The EDA further imposes potential additional costs on condemning authorities. Under Illinois
law prior to the enactment of the EDA, condemning authorities were not required to provide
relocation benefits to individuals displaced by a condemnation except if federal funds were
involved in the project at issue. 735 ILCS 30/10-5-62, however, generally requires all
condemning authorities to pay to displaced residents the relocation costs to which they would be
entitled if the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act
of 1970 (URA), Pub.L. No. 91-646, 84 Stat. 1894, applied.
Another significant change appeared in 735 ILCS 30/10-5-60. Under prior Illinois law,
property taken by condemnation was valued as of the date the condemnation complaint was filed.
Section 10-5-60, however, allows a court to change the valuation date if the trial does not begin
until more than two years after the complaint is filed.
In 2011, the historic date of valuation changed again. The Illinois Supreme Court invalidated
§10-5-60 sub silentio, adopting the rule of Kirby Forest Industries, Inc. v. United States, 467 U.S.
1, 81 L.Ed.2d 1, 104 S.Ct. 2187 (1984), that the valuation date is the date on which the
condemnor pays for the property and takes possession of it. Forest Preserve District of DuPage
County v. First National Bank of Franklin Park, 2011 IL 110759, 961 N.E.2d 775, 356 Ill.Dec.
386.
IV. AUTHORITY TO EXERCISE THE POWER OF EMINENT DOMAIN
A. [1.4] State of Illinois
The State of Illinois, as a sovereign, has the power to acquire private property for public use.
This inherent power is limited by the state Constitution and is regulated by state statute. See the
Eminent Domain Act. The source of the power of eminent domain for all other subdivisions of
the state, if it exists at all, is the General Assembly.
B. [1.5] Local Government
The General Assembly has specifically delegated the power of eminent domain to many of its
political subdivisions. However, any law conferring the right of eminent domain must be strictly
construed. Department of Transportation v. First Galesburg National Bank & Trust Co., 141
Ill.2d 462, 566 N.E.2d 254, 152 Ill.Dec. 567 (1990). A list of the various governmental entities in
Illinois to which the state legislature has conferred the power of eminent domain, and the
statutory source and purpose of that power, is set forth in §1.39 below.
C. [1.6] Condemnation by Utilities
The state has delegated the power to condemn private property to public utilities when
necessary for the construction of alterations, additions, extensions, or improvements of utility
facilities. 220 ILCS 5/8-509. The utilities’ power of eminent domain is subject to the approval of
the Illinois Commerce Commission (ICC). After receiving ICC approval for the acquisition, the
utility will institute condemnation in the usual way, subject to the Eminent Domain Act, in the
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circuit court. The utilities’ burden to prove necessity in the ICC is by substantial evidence
(Kreutzer v. Illinois Commerce Commission, 404 Ill.App.3d 791, 936 N.E.2d 147, 344 Ill.Dec. 5
(2d Dist. 2010)), arguably a higher standard than in the circuit court. Note that the General
Assembly removed the requirement that railroads obtain ICC permission to exercise the power of
eminent domain. Under the ICC Termination Act of 1995, Pub.L. No. 104-88, 109 Stat. 803,
railroad comdemnations are approved by the Surface Transportation Board. Union Pacific R.R. v.
Chicago Transit Authority, 647 F.3d 675 (7th Cir. 2011).
V.
THE EXERCISE OF THE POWER OF EMINENT DOMAIN: A TYPICAL
EMINENT DOMAIN ACTION
A. [1.7] Prerequisites to Filing the Complaint
Depending on the project and the nature and scope of the action, the number of prerequisites
the condemnor must satisfy will vary. Detailed explanations of the prerequisites are discussed in
other chapters of this handbook. The major prerequisites to filing are set forth in §§1.8 and 1.9
below.
1. [1.8] Authority, Public Purpose, and Necessity
There are three jurisdictional prerequisites to exercising the power of eminent domain in
Illinois. First, the condemning authority must have the statutory authority to acquire private
property. Department of Transportation v. First Galesburg National Bank & Trust Co., 141 Ill.2d
462, 566 N.E.2d 254, 152 Ill.Dec. 567 (1990); Department of Public Works & Buildings v.
Keller, 61 Ill.2d 320, 335 N.E.2d 443 (1975); Town of Libertyville v. Bank of Waukegan, 152
Ill.App.3d 1066, 504 N.E.2d 1305, 105 Ill.Dec. 787 (2d Dist.), appeal denied, 116 Ill.2d 560
(1987). Second, the taking must be for a public purpose. City of Chicago v. Barnes, 30 Ill.2d 255,
195 N.E.2d 629 (1964); Lake Louise Improvement Ass’n v. Multimedia Cablevision of Oak Lawn,
Inc., 157 Ill.App.3d 713, 510 N.E.2d 982, 109 Ill.Dec. 914 (1st Dist. 1987). Third, the taking
must be necessary (People ex rel. Director of Finance v. Young Women’s Christian Association
of Springfield, 86 Ill.2d 219, 427 N.E.2d 70, 55 Ill.Dec. 950 (1981)), although the condemning
authority has broad discretion in determining necessity (Keller, supra). See also City of Chicago
v. St. John’s United Church of Christ, 404 Ill.App.3d 505, 935 N.E.2d 1158, 343 Ill.Dec. 930 (2d
Dist. 2010).
2. [1.9] Negotiation with Property Owner
735 ILCS 30/10-5-10 requires the condemning authority to make a good-faith (bona fide)
attempt to negotiate with the property owner before filing a condemnation complaint. Trustees of
Schools of Township No. 37 v. First National Bank of Blue Island, 49 Ill.2d 408, 274 N.E.2d 56
(1971); County of Wabash, Illinois v. Partee, 241 Ill.App.3d 59, 608 N.E.2d 674, 181 Ill.Dec. 601
(5th Dist. 1993); Lake County Forest Preserve District v. First National Bank of Waukegan, 200
Ill.App.3d 354, 558 N.E.2d 721, 146 Ill.Dec. 758 (2d Dist.), appeal denied, 135 Ill.2d 557 (1990).
Negotiation in good faith is a condition precedent to initiating eminent domain. Forest Preserve
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ILLINOIS EMINENT DOMAIN PRACTICE
District of DuPage County v. First National Bank of Franklin Park, 2011 IL 110759, ¶63, 961
N.E.2d 775, 356 Ill.Dec. 386. An offer made by a governmental body based on the advice of an
experienced appraisal consultant is normally sufficient to establish a good-faith attempt to agree.
Id.
Amount to be offered. The offer should be “based on the advice of an experienced appraisal
consultant.” Id. Caselaw suggests that offering to purchase the property for its appraised value is
a safe harbor. See Peoples Gas Light & Coke Co. v. Buckles, 24 Ill.2d 520, 182 N.E.2d 169
(1962); Department of Transportation of State of Illinois ex rel. People v. Brownfield, 221
Ill.App.3d 565, 582 N.E.2d 209, 164 Ill.Dec. 1 (3d Dist. 1991).
May the condemnor offer less than the appraised value? Perhaps. In First National Bank of
Franklin Park, supra, the Illinois Supreme Court held that it was not in bad faith to make an offer
10 percent less than the appraised value. (In that case, the condemnor received a lower appraisal
but only after it made the 90-percent offer.) Egregious under-offers will result in a violation of
§10-5-10. City of Chicago v. Zappani, 376 Ill.App.3d 927, 877 N.E.2d 17, 315 Ill.Dec. 530 (1st
Dist. 2007); City of Naperville v. Old Second National Bank of Aurora, 327 Ill.App.3d 734, 763
N.E.2d 951, 261 Ill.Dec. 702 (2d Dist. 2002); Forest Preserve District of Will County v.
Marquette National Bank, 208 Ill.App.3d 823, 567 N.E.2d 635, 153 Ill.Dec. 677 (3d Dist. 1991).
For example, in City of Naperville, the city offered to purchase the subject parcel for significantly
less than its appraised value. The city argued that its offer was made in good faith because the
environmental condition of the property was unknown, a subsequent finding that the property was
contaminated could expose the city to significant liability, and the city had an obligation to the
taxpayers to acquire the parcel at the lowest possible price. The trial and appellate courts,
however, rejected those contentions. First, the appellate court rejected the city’s argument based
on the environmental condition of the property by noting that its offer was contingent on the
performance of environmental testing on the property. Therefore, since the city could refuse to go
through with the purchase if the testing revealed environmental contamination, the appellate court
stated that it could not “understand why any discounting of the purchase price was necessary.”
763 N.E.2d at 956. The appellate court also rejected the city’s argument that its lowball offer was
justified due to its obligation to protect the taxpayers. Here, the appellate court noted that
condemning authorities must balance any obligation to the taxpayers with their obligation to pay
property owners fair compensation when they condemn land. In balancing these competing
interests, the appellate court noted that a condemning authority cannot seek to acquire a parcel at
a bargain price, presumably because a bargain price would not be a fair price. Id.
Need the condemnor send the appraisal with its offer? No. First National Bank of
Franklin Park, supra.
Form of offer. It is a wise practice for the condemning authority to send its final good-faith
offer to the property owner in written form. To adequately satisfy the condemning authority’s
duty to attempt to agree, the written bona fide offer should include
a. the name and address of the owner;
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b. the legal description or common address of the property to be taken (in partial takings,
this can be somewhat complicated, which is why it is good practice to have the legal
description prepared by a title company or licensed surveyor);
c. the amount of the offer;
d. the type of interest sought (fee-simple title, an easement, etc.); and
e. an invitation to discuss the offer.
How long must the offer remain open? To be in good faith, the offer must remain open for
a reasonable period of time so that the property owner may consider it. Illinois State Toll
Highway Authority v. Karn, 9 Ill.App.3d 784, 293 N.E.2d 162 (2d Dist. 1973). If a counteroffer is
made by the property owner, the condemning authority is obliged to respond to it and must do so
in writing. Department of Transportation of State of Illinois ex rel. People v. Walker, 80
Ill.App.3d 1039, 400 N.E.2d 956, 36 Ill.Dec. 376 (3d Dist. 1980). However, ten days is sufficient.
First National Bank of Franklin Park, supra.
B. Filing the Complaint
1. [1.10] Contents of the Complaint
The minimum components of, and information required in, a condemnation complaint are
a. the name of the condemning authority;
b. the names of all persons interested as owners or who otherwise appear of record, if
known, as defendants;
c. a statement of authority, public purpose, and necessity;
d. a statement that the condemning authority and the property owners failed to agree on
compensation;
e. the legal description, common address, and permanent real estate index number (if any)
of the property;
f.
a description of the type of interest sought in the property (e.g., fee, permanent easement,
temporary easement, etc.);
g. a description of the project and any restoration to the extent available;
h. a jury demand if one is desired; and
i.
a prayer for relief requesting the “court to cause the compensation to be paid to the owner
to be assessed.” 735 ILCS 30/10-5-10(a).
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ILLINOIS EMINENT DOMAIN PRACTICE
2. [1.11] Public Utilities
Under 735 ILCS 30/10-5-10(g), a condemning authority generally is not authorized to take or
damage property belonging to a public utility without the prior approval of the Illinois Commerce
Commission. If there are public utility facilities on the property to be taken, the condemning
authority must request permission by filing and presenting a petition to the ICC.
It may be possible for the condemning authority to avoid this requirement by entering into a
utility relocation agreement. In a typical relocation agreement, the condemning authority agrees
to pay for the relocation and/or replacement of utility easements and facilities in exchange for the
utility’s waiving its defense that the condemning authority failed to obtain ICC permission.
With respect to railroads, federal regulation of the railways trumps local condemnation
power. Under the ICC Termination Act of 1995, local condemnation is subject to the approval of
the Surface Transportation Board. Union Pacific R.R. v. Chicago Transit Authority, 647 F.3d 675
(7th Cir. 2011).
3. [1.12] Common Elements
Under 735 ILCS 30/10-5-10(e), if a condemning authority seeks to take or damage a common
element of property subject to a declaration of condominium ownership under the Condominium
Property Act, 765 ILCS 605/1, et seq., or of a common interest community, the complaint should
name the unit owners’ association and not the individual unit owners, mortgagees, and
lienholders. However, the unit owners, mortgagees, or lienholders may intervene as defendant
parties.
4. [1.13] Service of Process
Once the complaint is filed, service of process must be made on the named defendants.
Traditionally, the county sheriff will serve the defendant with process. Unknown owners are
served by publication of notice in a newspaper of general circulation in accordance with 735
ILCS 5/2-206. Defendants are required to appear no later than 30 days after being served. See
Illinois Supreme Court Rule 181(a). Because service by publication usually takes longer than
personal service, defendants served by publication are not required to appear until the expiration
of the three-week publication period. 735 ILCS 5/2-207.
5. [1.14] Lis Pendens
A lis pendens notice provides constructive notice to prospective purchasers or other interested
parties that the property is the subject of an eminent domain proceeding. See 735 ILCS 5/2-1901.
It is good practice for the condemning authority to file a lis pendens notice with the court and
record it in the office of the recorder for the county in which the property is located.
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6. [1.15] Answer and Cross-Petition
A traditional answer to the complaint is neither necessary nor required in an eminent domain
action. The right to condemn land affirmatively appears on the face of the complaint. Board of
Education of Cicero-Stickney Tp. High School, High School Dist. No. 201 v. City of Chicago, 402
Ill. 291, 83 N.E.2d 714 (1949).
It is improper for an owner to file an answer to the complaint to condemn. Illinois courts have
consistently held that a defendant in a condemnation case is not required to file an answer, and
when a defendant does file an answer to a complaint for condemnation, the answer may be
stricken. Board of Education of Cicero-Stickney Tp. High School, supra, 83 N.E.2d at 718;
Williamson County v. Brock, 367 Ill. 159, 10 N.E.2d 654, 655 (1937).
If the property owner or other defendant desires to assert a claim for damages (e.g., a claim
for damage to the remainder in a partial taking), that party must file a cross-petition. Forest
Preserve District of Cook County v. Krol, 12 Ill.2d 139, 145 N.E.2d 599 (1957). The crosspetition is mandatory if the owner wishes to assert that there are damages to the remainder.
Absent a cross-petition, the owner waives damages to the remainder.
7. [1.16] Traverse — Attacks on the Propriety of the Complaint
If the property owner or other defendant is of the opinion that the condemning authority’s
complaint is insufficient in some respect, the defendant may elect to file what is known as a
“traverse.” This action is similar, at least in theory, to the traditional motion to dismiss. However,
unlike a motion to dismiss pursuant to 735 ILCS 5/2-615 and 5/2-619, the court may conduct a
trial or evidentiary hearing on the issues raised in a traverse. When the defendant files a traverse,
the condemning authority has the burden to establish a prima facie case on the disputed
allegation; if the condemning authority is successful, the burden shifts to the defendant, who must
show a clear abuse of discretion in exercising the power. Department of Transportation v. First
Galesburg National Bank & Trust Co., 141 Ill.2d 462, 566 N.E.2d 254, 152 Ill.Dec. 567 (1990);
City of Oakbrook Terrace v. LaSalle National Bank, 186 Ill.App.3d 343, 542 N.E.2d 478, 134
Ill.Dec. 299 (2d Dist. 1989). Motions to dismiss, or traverses, are discussed in detail in other
chapters of this handbook. See especially Chapter 3. Some of the basic grounds for attacking the
propriety of a condemnation complaint are addressed in §§1.17 – 1.20 below.
a. [1.17] Authority, Public Purpose, and Necessity
Depending on the nature and the scope of the project, there may be arguments that the
proposed condemnation is not for a public purpose or is unnecessary. However, simply because
the property to be taken will be transferred to a private entity does not necessarily mean that the
property is not being taken for a public purpose. Southwestern Illinois Development Authority v.
National City Environmental, L.L.C., 199 Ill.2d 225, 768 N.E.2d 1, 263 Ill.Dec. 241 (2002). The
defendant’s attorney should review the complaint carefully to determine whether the condemning
body has the statutory authority to pursue eminent domain proceedings and has satisfied all
prefiling requirements.
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§1.18
ILLINOIS EMINENT DOMAIN PRACTICE
b. [1.18] Legal Description
The failure to legally describe the property with reasonable certainty is a ground for dismissal
of the complaint. Forest Preserve Dist. of Cook County v. Lehmann Estate, Inc., 388 Ill. 416, 58
N.E.2d 538 (1944); Kreutzer v. Illinois Commerce Commission, 404 Ill.App.3d 791, 936 N.E.2d
147, 344 Ill.Dec. 5 (2d Dist. 2010).
c. [1.19] Attempt To Agree on Compensation
The failure to allege that the condemning authority made a bona fide attempt to agree with
the property owner on compensation is a ground for dismissal of the complaint. Forest Preserve
District of Will County v. Marquette National Bank, 208 Ill.App.3d 823, 567 N.E.2d 635, 153
Ill.Dec. 677 (3d Dist. 1991).
d. [1.20] Illinois Commerce Commission Approval
The failure to allege that the plaintiff has sought and obtained Illinois Commerce
Commission approval to condemn utility easements is a ground for the utility company to seek
dismissal of the complaint.
C. [1.21] Discovery
The primary factual issue in an eminent domain case is the fair market value of the property.
The subject of valuation is discussed in detail in Chapter 7 of this handbook. The parties are
permitted to engage in discovery on valuation issues and other factual matters under the Supreme
Court Rules. City of Bloomington v. Quinn, 114 Ill.App.2d 145, 252 N.E.2d 10 (4th Dist. 1969).
1. [1.22] Discovery of Facts or Documents
Both the condemning authority and the defendant may serve interrogatories and production
requests and motions to admit to discover facts or documents that may be relevant to the
condition of the property, comparable sales, and other facts that could impact valuation. See other
chapters of this handbook, especially Chapters 3 and 6.
2. [1.23] Discovery of Witnesses
Under S.Ct. Rule 213(f), which governs disclosure of testifying witnesses, a party must
disclose three types of witnesses: (a) lay witnesses; (b) independent expert witnesses; and (c)
controlled expert witnesses. For a lay witness, a party must disclose the subjects on which the lay
witness will testify. For an independent expert witness, a party must disclose the subjects on
which the witness will testify as well as the opinions the party expects to elicit. For a controlled
expert witness, a party must disclose the subject matter on which the witness will testify, the
witness’s conclusions and opinions, the bases for those conclusions and opinions, the
qualifications of the witness, and any reports prepared by the witness about the case.
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The scope of S.Ct. Rule 213(f) is broad. Therefore, attorneys for each party must be sure to
disclose not only witnesses who will offer their opinions of value, such as appraisers, real estate
brokers, and owners, but also witnesses who may offer opinions on any other issue in the
particular case. Expert opinions not disclosed in discovery are barred at trial. S.Ct. Rule 213(g).
D. [1.24] Trial
The trial of the eminent domain case is discussed in substantial detail in Chapter 8 of this
handbook. The significant aspects of the trial are noted in §§1.25 – 1.29 below.
1. [1.25] Motions in Limine
If the practitioner believes that certain comparable sales or other evidence should be
excluded, the appropriate vehicle for bringing this to the court’s attention is a motion in limine.
735 ILCS 30/10-5-50 and 30/10-5-60 govern the admissibility of certain categories of evidence.
2. [1.26] View of the Property
735 ILCS 30/10-5-45 provides that either party may request that the jury physically inspect
the subject property. The jury view typically occurs before any witnesses testify.
3. [1.27] Testimony and Evidence
While each case is different, most witness testimony will relate to fair market value. In most
cases, the testimony of the real estate appraiser is the most important testimony. The subjects of
valuation and valuation witnesses are discussed in detail in Chapter 7 of this handbook.
4. [1.28] Jury Instructions
Illinois Pattern Jury Instructions — Civil No. 300.00, et seq., set forth the standard jury
instructions to be used in an eminent domain case.
5. [1.29] Abandonment
The condemning body is permitted to abandon its efforts to acquire a property on the grounds
that the jury verdict is excessive or that the property is no longer needed, or for any other reason.
Abandonment may occur even after the condemnor pays the judgment award. City of Chicago v.
Harris Trust & Savings Bank, 346 Ill.App.3d 609, 804 N.E.2d 724, 281 Ill.Dec. 759 (1st Dist.
2004). However, abandonment is no longer possible after the government takes possession of the
property. 735 ILCS 30/20-5-40. A condemnor may abandon the taking even after the parties have
entered into a stipulated judgment order as long as the condemnor has not yet taken possession of
the property. Village of Bellwood v. American National Bank & Trust Company of Chicago, 2011
IL App (1st) 093115, 952 N.E.2d 148, 351 Ill.Dec. 775.
A condemnor that abandons or dismisses its case at any time after the condemnation
complaint is filed must, upon application of the defendant, reimburse all costs, expenses, and
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ILLINOIS EMINENT DOMAIN PRACTICE
reasonable attorneys’ fees incurred by the defendant up to the time of the abandonment. Trustees
of Schools of Township No. 42 ex rel. Community Consolidated School District No. 21 v.
Herrmann, 21 Ill.2d 477, 173 N.E.2d 472 (1961). Note that costs are limited to those incurred “in
defense of the complaint.” 735 ILCS 30/10-5-70(a).
E. [1.30] Posttrial
Pursuant to 735 ILCS 30/10-5-45, the jury is required to set forth in writing the compensation
to be paid to each defendant. Once judgment is entered on the verdict, the attorney for the
condemning authority must follow several steps to complete the transfer of title and payment of
the compensation to the defendants. See §§1.31 – 1.35 below.
1. [1.31] The Judgment Order
Pursuant to 735 ILCS 30/10-5-70, the court is required to enter an order regarding the
payment of just compensation. The attorney for the condemning authority will normally make a
motion for the entry of a final judgment order. That order should include the following statements
and information:
a. a statement that the condemning authority filed the action to ascertain the just
compensation for the taking of certain property for public purposes;
b. a statement that all defendants were served with process and that the court had
jurisdiction over the subject matter of the proceeding;
c. the legal description of the property;
d. the dates on which the case was tried to a jury and on which the jury reached a verdict;
e. a statement that the court has determined that the fair market value of the subject property
is the amount of the jury verdict;
f.
a statement that the condemning authority shall deposit the total compensation with the
county treasurer on or before a date certain; and
g. a statement that an order vesting title in the condemning authority shall issue from the
court upon deposit of the total compensation with the treasurer.
2. [1.32] Deposit
Absent a court-ordered extension or pending posttrial motions, the total amount of
compensation must be deposited with the county treasurer on or before the deposit date set forth
in the judgment order. Under 735 ILCS 30/10-5-70, the failure to comply with the order may
result in abandonment. Pursuant to 735 ILCS 5/2-1303, the condemning authority is responsible
for paying statutory interest from the date of the judgment to the date on which the deposit is
made.
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3. [1.33] Motion To Vest Title
Once the deposit is made, the condemning authority may move for an order vesting title to
the property. The order vesting title should reflect the date the court ordered final judgment, the
amount of total compensation, and the date on which the deposit was made. The order should also
reflect that the condemning authority has exhibited to the court a receipt for this deposit from the
county treasurer and the date of issuance of that receipt. Once the court enters this order, title to
the property vests in the condemning authority.
4. [1.34] Withdrawing the Deposit
Immediately after the condemning authority deposits the total compensation with the county
treasurer, the defendants should petition the court for withdrawal. The petition should ask that the
court direct the county treasurer to pay the appropriate amounts on deposit to the parties in
interest. Each party in interest, such as an owner, lessee, or mortgagee, may file its own petition.
Any disagreement among the parties may be resolved by the court. The petition for withdrawal
should contain the following elements and information:
a. a statement that the petitioner was the owner of the subject property both at the time of
the filing of the complaint and at the time the award was deposited with the county
treasurer;
b. the date of entry of the judgment order fixing the fair market value of the property and
the date of the jury verdict, if applicable;
c. the date on which the condemning authority deposited the award and the amount of the
deposit, including interest;
d. a statement of any encumbrances on the property (such as mortgages) that will be
satisfied out of the condemnation award (attorneys’ fees may also be satisfied out of the
condemnation award); and
e. a request that the county treasurer issue a check or checks in the total amount of the net
condemnation award.
5. [1.35] Property Taxes
The condemning authority may be entitled to a property tax exemption with respect to
property acquired through eminent domain proceedings. This exemption should relate back to the
date of filing of the complaint for condemnation. Likewise, the owner may be entitled to a refund
of property taxes paid relating to the time after the date the condemning authority filed the
complaint. The defendant’s attorney must make a motion seeking an order from the court for such
a refund. But query whether this continues to make sense in light of Forest Preserve District of
DuPage County v. First National Bank of Franklin Park, 2011 IL 110759, 961 N.E.2d 775, 356
Ill.Dec. 386, in which the court held that the property taken in condemnation is valued at the date
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ILLINOIS EMINENT DOMAIN PRACTICE
that the condemnor takes possession of the property, not the date that the complaint was filed.
Adhering to the traditional rule may give a windfall to the owner, who has both use of the
property and relief from real estate taxes during the period between the filing of the complaint
and the time the government takes possession.
VI. [1.36] USE OF EMINENT DOMAIN FOR URBAN REDEVELOPMENT
Creative lawyering and imaginative urban planning have resulted in a new and controversial
use of the power of eminent domain. Relying on three commercial redevelopment statutes,
municipalities have created redevelopment districts within which private property can be acquired
through eminent domain and immediately sold to a private developer for redevelopment
purposes. The enabling statutes are (a) the commercial renewal and redevelopment areas statute,
65 ILCS 5/11-74.2-1, et seq., (b) the Business District Development and Redevelopment Law, 65
ILCS 5/11-74.3-1, et seq., and (c) the Tax Increment Allocation Redevelopment Act, 65 ILCS
5/11-74.4-1, et seq., each of which has its own procedural and qualitative requirements for the
establishment of a redevelopment district. The Tax Increment Allocation Redevelopment Act, for
example, requires extensive notification and public hearings and imposes stringent qualification
rules for tax increment financing (TIF) districts. Curiously, the requirements for establishment of
a business district pursuant to the Business District Development and Redevelopment Law are
sparse. Unless a municipality seeks to impose a retailers’ occupation tax, a service occupation
tax, or a hotel operators’ tax, the statute requires nothing more than public hearings by the
corporate authorities prior to use of the plentiful authority endowed by the statute. If, however, a
municipality does desire to impose one of the aforementioned taxes, the municipality must follow
procedures more akin to those imposed under the Tax Increment Allocation Redevelopment Act.
65 ILCS 5/11-74.3-2, 5/11-74.3-5. Municipal lawyers should use caution, however, when using
the business district development and redevelopment statute. As of the time of this writing, no
caselaw exists in support thereof.
The basic premise behind all three statutes is that municipalities need to be able to acquire
property within certain designated areas for redeveloping the areas, which by itself would appear
to be a valid public purpose. The controversy occurs when the municipal condemnation is
followed immediately by the conveyance of the condemned property to a private developer for
redevelopment. Indeed, it is not uncommon for the municipality to have in place before the
condemnation an agreement with a developer requiring the developer to finance the cost of the
condemnation litigation, a cost many developers are more than happy to pay to ultimately take
title to otherwise unobtainable real estate.
The First District Appellate Court has frequently sustained the exercise of condemnation
authority for urban development under the Tax Increment Allocation Redevelopment Act. See,
e.g., Village of Wheeling v. Exchange National Bank of Chicago, 213 Ill.App.3d 325, 572 N.E.2d
966, 970, 157 Ill.Dec. 502 (1st Dist.), appeal denied, 141 Ill.2d 562 (1991), and, more recently,
City of Chicago v. Eychaner, 2015 IL App (1st) 131833, ¶¶71, 75, 26 N.E.3d 501, 389 Ill.Dec.
411. In Eychaner, the court stated:
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Recognizing the difference between a valid public use and a sham can be
challenging. But a telling feature of sound public use in the context of economic
redevelopment is the existence of a well-developed, publicly vetted, and thoughtful
economic development plan. . . .
***
. . . The goals of the River West TIF — to reduce blighting factors, prevent blight,
foster the City’s industrial base, prevent conflicts between residential and industrial
uses, and retain existing industry — all constitute valid public uses. The taking of
Eychaner’s land to expand Blommer’s industrial campus land furthers each of these
goals, and is thus a sound use of eminent domain. 2015 IL App (1st) 131833 at ¶¶71,
75.
To date, the commercial renewal and redevelopment areas and the business district
development and redevelopment statutes have not been challenged on this basis. The Illinois
Supreme Court has upheld the use of such condemnation authority in other economic
development statutes, which suggests that the exercise of similar authority under the commercial
renewal and redevelopment areas and the business district development and redevelopment
statutes would be found to be constitutional. People ex rel. Adamowski v. Chicago Railroad
Terminal Authority, 14 Ill.2d 230, 151 N.E.2d 311 (1958); Illinois State Toll Highway
Commission v. Eden Cemetery Ass’n, 16 Ill.2d 539, 158 N.E.2d 766 (1959); Berman v. Parker,
348 U.S. 26, 99 L.Ed. 27, 75 S.Ct. 98 (1954).
However, if the condemning authority seeks to acquire a parcel for which there will limited
public benefit or that is not part of a comprehensive development plan, the taking might be
subject to a constitutional challenge. See, e.g., Kelo v. City of New London, Connecticut, 545 U.S.
469, 162 L.Ed.2d 439, 125 S.Ct. 2655 (2005), discussed in §§1.2 and 1.3 above. For example, in
Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 199 Ill.2d
225, 768 N.E.2d 1, 263 Ill.Dec. 241, cert denied, 123 S.Ct. 88 (2002), the Illinois Supreme Court
(with two Justices dissenting) held that a regional development authority exceeded its
constitutional authority when it sought to condemn a 148.5-acre parcel, which would then be
transferred to a private racetrack operator for use as a parking lot to support the racetrack’s
operations. In finding that this use of eminent domain was unconstitutional, the majority found
that the condemning authority had failed to introduce sufficient evidence to demonstrate the
economic development and/or safety benefits of the proposed taking. In so holding, the court
appeared to find that the authority’s resolution that asserted that the proposed taking would
enhance the public health, safety, morals, and happiness and the general welfare of the citizens
through the creation of job opportunities, the generation of additional tax revenue, and the
expansion of the tax base did not satisfy the authority’s burden to make a prima facie showing
that the taking was for a proper public purpose.
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§1.37
ILLINOIS EMINENT DOMAIN PRACTICE
VII. [1.37] QUICK-TAKE
The quick-take provisions of 735 ILCS 30/25-7-103.1, et seq., permit certain governmental
entities to acquire property by quick-take. Quick-take allows the expeditious acquisition of title
without waiting for the final determination of fair market value. This process allows the
condemning authority to enjoy the immediate use of the property during the frequently timeconsuming proceedings to establish the value of the property.
In §25-7-103.1, et seq., the General Assembly granted quick-take power in more than 140
projects or types of developments. However, many of those grants of power have expired. In
addition, the General Assembly occasionally adds to the quick-take list. The governmental
entities that, as of the date of publication of this handbook, have quick-take powers are listed
along with the corresponding ILCS citations in §1.40 below.
To invoke the quick-take power once it is granted by the General Assembly, the condemning
authority must make a motion pursuant to 735 ILCS 30/20-5-5 for immediate vesting of title.
Pursuant to 735 ILCS 30/20-5-10(a), the court must fix a date for hearing on the motion not less
than 5 days after the motion is filed and shall require appropriate notice. At the hearing, the court
must determine, if it has not done so already, (a) whether the plaintiff has the authority to exercise
the power of eminent domain, (b) whether the property sought to be taken is subject to the power,
and (c) whether the power is being properly exercised. 735 ILCS 30/20-5-10(b). The court’s order
on these issues is appealable within 30 days. Id.
Once the court resolves the above three issues, it must adjudicate the issues raised by the
condemning authority’s motion for taking. If the court finds that there is reasonable necessity for
the taking, it must hear evidence necessary to make a preliminary finding of just compensation
and then make such a finding. 735 ILCS 30/20-5-10(c).
In accordance with 735 ILCS 30/20-5-15, following the court’s finding of preliminary
compensation and the condemning authority’s deposit of the amount of preliminary compensation
with the county treasurer, the court, upon a motion by the condemning authority, will enter an
order vesting title in the condemning authority and fixing a date on which the condemning
authority may take possession of the property. Pursuant to 735 ILCS 30/20-5-20, an interested
party may then move to withdraw the portion of the preliminary compensation to which that party
is entitled. The condemning authority is not required to pay interest on the preliminary
compensation amount unless required by 735 ILCS 30/20-5-30.
After the condemning authority obtains title, the case proceeds as any other eminent domain
case, and if the parties make a proper and timely request, it may be tried to a jury. Evidence of the
amount of preliminary compensation is inadmissible pursuant to §20-5-10(d). If the jury awards
an amount less than the preliminary finding of just compensation, the interested party or parties
must refund any such excess amounts. Once the condemning authority has taken possession of
the property, under 735 ILCS 30/20-5-40 the condemning authority cannot dismiss or abandon
the proceeding unless the interested parties consent.
The exercise of quick-take power is even more drastic than usual eminent domain
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proceedings because of the immediate vesting of title in the condemning entity. Department of
Transportation ex rel. People v. First Galesburg National Bank & Trust Co., 189 Ill.App.3d 797,
545 N.E.2d 770, 137 Ill.Dec. 117 (3d Dist. 1989), rev’d, 141 Ill.2d 462 (1990). Quick-take is
intended to be used only in circumstances in which the immediate use of private property is
necessary for a public project and the project cannot wait for the ascertainment of just
compensation. See Chapter 4 of this handbook. For example, quick-take authority is frequently
approved by the state legislature for such local public works projects as sewer extensions, road
widenings, and sidewalk installations. See 735 ILCS 30/20-5-5.
The use of quick-take with the redevelopment statutes has been condoned for the City of
Chicago. In City of Chicago v. Boulevard Bank National Ass’n, 293 Ill.App.3d 767, 688 N.E.2d
844, 228 Ill.Dec. 146 (1st Dist. 1997), a challenge was made to a statute that authorized quicktake for condemnations under the commercial renewal and redevelopment areas and the business
district development and redevelopment statutes by municipalities having a population of more
than 500,000. The defendant argued that the statute was unconstitutional because it was special
legislation enacted for the City of Chicago. The appellate court, however, upheld the provision
because there was a rational basis for distinguishing between municipalities with populations in
excess of 500,000 and smaller municipalities. In particular, the court observed that the use of
quick-take with condemnation for redevelopment of blighted areas in downtown Chicago is
proper because (a) the relocation burden is substantial, particularly with buildings with large
numbers of tenants, and (b) the size of the buildings and the poor quality of the land records make
it extremely difficult to ascertain the interested parties and determine how to divide
compensation.
Note that the Fourth District Appellate Court has affirmed granting a condemnor lacking
quick-take power immediate possession in exigent circumstances, similar to a temporary
restraining order, after depositing funds with the court. Enbridge Pipelines (Illinois), L.L.C. v.
Troyer, 2015 IL App (4th) 150334, 38 N.E.3d 1282, 395 Ill.Dec. 526, appeal denied, 2016 IL
120148.
VIII. [1.38] RELOCATION
In a condemnation action, the condemning authority is required to pay the property owner
just compensation for the taking. The Illinois Constitution provides that “[p]rivate property shall
not be taken or damaged for public use without just compensation as provided by law. Such
compensation shall be determined by a jury as provided by law.” ILL.CONST. art. I, §15. 735
ILCS 30/10-5-60 defines “just compensation” as “the amount of money that a purchaser, willing,
but not obligated, to buy the property, would pay to an owner willing, but not obliged, to sell in a
voluntary sale.” Such just compensation, however, does not take into account a property owner’s
or tenant’s moving and other relocation expenses.
Prior to 1970, several federal statutes provided condemnees with relocation assistance. The
scope and application of these relocation provisions varied greatly from agency to agency. In
1970, to provide property owners with a uniform system of relocation benefits, Congress enacted
the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. The URA
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§1.38
ILLINOIS EMINENT DOMAIN PRACTICE
provides relocation benefits to individuals and businesses forced to move as a result of a
condemning authority’s acquisition of real property, or as a result of a written order by the
condemning authority to vacate the property, for a project or program undertaken by a federal
agency or with federal financial assistance. The term “federal financial assistance” means a grant,
loan, or contribution provided by the United States, except any federal guarantee or insurance,
any interest reduction payment to an individual with the purchase and occupancy of a residence
by that individual, and any annual payment or capital loan to the District of Columbia. 42 U.S.C.
§4601(4).
With respect to moving expenses, the URA generally provides that the head of the displacing
agency shall provide for the payment of (a) reasonable moving expenses, (b) direct losses of
personal property caused by the move, (c) reasonable expenses in searching for a replacement
business or farm, and (d) reasonable expenses necessary to reestablish a displaced farm, nonprofit
organization, or small business at its new site, not to exceed $25,000. 42 U.S.C. §4622(a). In lieu
of this payment, a displaced person can elect to receive an expense and dislocation allowance,
which is determined according to a schedule established by the head of the displacing agency. 42
U.S.C. §4622(b).
With respect to replacement housing, the URA provides that the head of the condemning
authority may make an additional payment, not to exceed $31,000, to any displaced person who is
displaced from a home that he or she actually owned and occupied for at least 90 days prior to the
initiation of negotiations to acquire the property. 42 U.S.C. §4623(a)(1). That additional payment
includes (a) an amount that, when added to the purchase price, equals the cost of a comparable
replacement home; (b) an amount that will compensate the displaced person for any increased
interest costs the person is required to pay for financing the purchase of another home; and (c)
other reasonable expenses incurred by the displaced person to close on the new home (e.g.,
recording fees, etc.). Id. To qualify for this additional payment, the displaced person must
purchase and occupy a “decent, safe, and sanitary” replacement home within 1 year after the date
on which the person receives final payment from the condemning authority or the date on which
the condemning authority’s displacing obligation under 42 U.S.C. §4625(c)(3) is met, whichever
occurs later. 42 U.S.C. §4623(a)(2). Additionally, the condemning authority can often insure any
mortgage (including advances during construction) on a comparable replacement home for a
displaced person. 42 U.S.C. §4623(b).
The URA also makes numerous provisions for relocation planning, assistance coordination,
and other advisory services. 42 U.S.C. §4625. Under these provisions, the condemning authority
needs to implement a relocation advisory program so that the problems associated with the
proposed displacement can be recognized at an early stage in the planning process. Furthermore,
the advisory program needs to provide for the resolution of the attendant problems so that any
adverse impacts can be minimized. 42 U.S.C. §4625(a). These advisory services need to be made
available to all persons displaced by the condemning authority and can also be provided to any
person occupying property immediately adjacent to the property being acquired if the acquisition
causes substantial economic injury to that individual. 42 U.S.C. §4625(b).
Prior to the enactment of the Eminent Domain Act, Illinois did not have a comprehensive
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relocation law. Instead, relocation provisions were scattered throughout the statutes, without
consistent application. The EDA now requires all condemning authorities to pay to displaced
persons the relocation costs to which they would be entitled under the federal URA. 735 ILCS
30/10-5-62.
IX. APPENDIX
A. [1.39] Illinois Statutes Granting the Power of Eminent Domain
ILLINOIS STATUTES GRANTING THE
POWER OF EMINENT DOMAIN
Chapter Subject
Statute
Purpose
Air Transportation
620 ILCS 5/72 – 5/74
State airports
Air Transportation
620 ILCS 25/33
Air rights
Air Transportation
620 ILCS 40/2 – 40/5
Airports and landing
fields (counties)
Air Transportation
620 ILCS 45/6, 45/7
Airports and landing
fields (counties of less
than 1 million
inhabitants)
Air Transportation
620 ILCS 50/22, 50/24, 50/31
County airports
Air Transportation
620 ILCS 55/1
East St. Louis airport
(MidAmerica St. Louis
Airport)
Business Organizations —
Corporations
805 ILCS 25/2
Corporation canal
construction
Business Organizations —
Corporations
805 ILCS 30/7
Acquiring gas
company stockholder
shares
Conservation
525 ILCS 30/7.05, 30/14
Preservation of natural
areas
Conservation
525 ILCS 40/3
State forests
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ILLINOIS EMINENT DOMAIN PRACTICE
Chapter Subject
Statute
Purpose
Counties
55 ILCS 5/5-1095
Limited easement to
extend cable for
community antenna
television systems
Counties
55 ILCS 5/5-1119
Mississippi River
ferries
Counties
55 ILCS 5/5-11001
Parking facilities
Counties
55 ILCS 5/5-15007, 5/5-15009
Water supply,
drainage, and flood
control
Counties
55 ILCS 5/5-30021
Historic preservation
Counties
55 ILCS 85/9, 90/60
Economic
development project
areas
Counties
55 ILCS 100/3
Coal processing plants
Environmental Safety
415 ILCS 95/6
Junkyards
Executive Branch — Capital
Development Board
20 ILCS 3105/9.08a, 3110/5
Acquisition of land
and buildings for state
use
Executive Branch —
Department of Commerce and
Economic Opportunity
20 ILCS 620/9
Economic
development areas
Executive Branch —
Department of Commerce and
Economic Opportunity
20 ILCS 685/1
Particle accelerator
land acquisition
Executive Branch —
Department of Natural
Resources
20 ILCS 835/2
State parks and nature
preserves
Executive Branch —
Department of Natural
Resources
20 ILCS 1920/2.06, 1920/2.08
Reclamation of
abandoned, mined land
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Chapter Subject
Statute
Purpose
Executive Branch —
Department of Natural
Resources
20 ILCS 1920/2.11
Reclamation of
abandoned, non-coal
mined land
Executive Branch —
Executive Departments
20 ILCS 5/5-675
The Secretary of the
Illinois Department of
Transportation
(IDOT), the Director
of Central
Management Services,
and the Director of the
Illinois Department of
Natural Resources
(DNR) — compliance
with Uniform
Relocation Assistance
and Real Property
Acquisition Policies
Act of 1970
Executive Branch — Various
Departments
20 ILCS 1110/3
Illinois Department
of Commerce and
Economic Opportunity
— rights-of-way and
easements for coal use
or conversion projects
Executive Officers — Secretary
of State
15 ILCS 330/2
Administrative
buildings in Cook
County
Fish
515 ILCS 5/1-145
Waters and facilities
for propagation for
aquatic life
General Provisions —
Intergovernmental Cooperation
5 ILCS 220/3.1
Joint water agencies
General Provisions — State
Land
5 ILCS 585/1
National forests
Higher Education — Board of
Governors Universities
110 ILCS 615/3
Acquiring property
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§1.39
ILLINOIS EMINENT DOMAIN PRACTICE
Chapter Subject
Statute
Purpose
Higher Education — Public
Community Colleges
110 ILCS 805/3-36
Acquiring property
Higher Education — Public
Universities
110 ILCS 660/5-40, 661/6-10
Chicago State
University —
acquiring property
Higher Education — Public
Universities
110 ILCS 665/10-40, 666/11-10
Eastern Illinois
University —
acquiring property
Higher Education — Public
Universities
110 ILCS 670/15-40, 671/16-10
Governors State
University —
acquiring property
Higher Education — Public
Universities
110 ILCS 675/20-40, 676/21-10
Illinois State
University —
acquiring property
Higher Education — Public
Universities
110 ILCS 680/25-40, 681/26-10
Northeastern Illinois
University —
acquiring property
Higher Education — Public
Universities
110 ILCS 685/30-40, 686/31-10
Northern Illinois
University —
acquiring property
Higher Education — Public
Universities
110 ILCS 690/35-40, 691/36-10
Western Illinois
University —
acquiring property
Higher Education — Regency
Universities
110 ILCS 710/3
Acquiring property
Higher Education — Southern
Illinois University
110 ILCS 525/3
Acquiring property
Higher Education — University
of Illinois
110 ILCS 305/7, 325/2
Acquiring property
Higher Education — University
of Illinois
110 ILCS 335/3
Institution for
Tuberculosis Research
Housing
310 ILCS 5/6
State housing
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§1.39
Chapter Subject
Statute
Purpose
Housing
310 ILCS 5/26, 5/38
Illinois Housing
Development
Authority
Housing
310 ILCS 10/8.3, 10/8.15, 10/9
Housing authorities
Housing
310 ILCS 20/5
Housing development
and construction
Housing
310 ILCS 35/2
House relocation
Interstate Compacts
45 ILCS 30/3
Quad Cities Interstate
Metropolitan
Authority
Interstate Compacts
45 ILCS 110/1
Bi-State Development
Agency
Libraries
75 ILCS 5/4-7, 16/30-55.80
Local libraries
Libraries
75 ILCS 65/1, 65/3
Libraries in parks
Local Government — General
Provisions
50 ILCS 20/14
Public building
commissions —
property for municipal
purposes
Local Government — General
Provisions
50 ILCS 30/6.4
Exhibition councils —
properties for
exhibitions and public
entertainment
Local Government — Property
50 ILCS 605/4
Transfer of real estate
to state
Municipalities
65 ILCS 5/9-2-14 through 5/9-2-37
Local improvements
Municipalities
65 ILCS 5/11-11-1
Urban rehabilitation
Municipalities
65 ILCS 5/11-12-8
Acquisition of land
designated for public
use in final plat of
subdivision
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§1.39
ILLINOIS EMINENT DOMAIN PRACTICE
Chapter Subject
Statute
Purpose
Municipalities
65 ILCS 5/11-13-17
Substandard structures
Municipalities
65 ILCS 5/11-19-10
Disposal of refuse,
garbage, and ashes
Municipalities
65 ILCS 5/11-28-1
City hospital sites
Municipalities
65 ILCS 5/11-29.3-1
Senior citizen housing
Municipalities
65 ILCS 5/11-42-11
Limited easement to
extend cable for
community antenna
television systems
Municipalities
65 ILCS 5/11-45.1-2
Cultural centers
Municipalities
65 ILCS 5/11-48.2-2
Historic preservation
Municipalities
65 ILCS 5/11-52.1-1, 5/11-52.1-3
Cemetery lots
Municipalities
65 ILCS 5/11-61-1
Public works,
buildings, and property
Municipalities
65 ILCS 5/11-61-1a
Use of quick-take by
municipalities with
over 500,000
inhabitants to acquire
property for rapid
transit lines
Municipalities
65 ILCS 5/11-61-2
Streets, sidewalks,
wharves, and parks
Municipalities
65 ILCS 5/11-63-5
Community buildings
Municipalities
65 ILCS 5/11-65-3
Municipal convention
halls
Municipalities
65 ILCS 5/11-66-10
Coliseums
Municipalities
65 ILCS 5/11-68-4
Stadiums and athletic
fields
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THE POWER OF EMINENT DOMAIN: INTRODUCTION AND OVERVIEW
§1.39
Chapter Subject
Statute
Purpose
Municipalities
65 ILCS 5/11-69-1
Joint ownership of
municipal buildings
Municipalities
65 ILCS 5/11-71-1
Parking facilities
Municipalities
65 ILCS 5/11-71-10
Restoration of public
land leased to private
parties
Municipalities
65 ILCS 5/11-74.2-8, 5/11-74.2-9
Commercial
redevelopment
Municipalities
65 ILCS 5/11-74.3-3
Business district
development
Municipalities
65 ILCS 5/11-74.4-4
Tax-increment
financing districts
Municipalities
65 ILCS 5/11-74.6-15
Industrial jobs
recovery
Municipalities
65 ILCS 5/11-75-5
Lease of space around
municipal buildings
Municipalities
65 ILCS 5/11-80-21
Streets and public
ways
Municipalities
65 ILCS 5/11-87-3, 5/11-87-5
Watercourses
Municipalities
65 ILCS 5/11-92-3
Harbors for
recreational use
Municipalities
65 ILCS 5/11-93-1
Piers and beaches
Municipalities
65 ILCS 5/11-94-1, 5/11-95-1
Recreational facilities
Municipalities
65 ILCS 5/11-97-2
Driveways to parks
outside corporate
limits
Municipalities
65 ILCS 5/11-101-1
Airports — general
authority
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§1.39
ILLINOIS EMINENT DOMAIN PRACTICE
Chapter Subject
Statute
Purpose
Municipalities
65 ILCS 5/11-102-4
Public airports —
property acquisition
(municipalities with
500,000 inhabitants or
more)
Municipalities
65 ILCS 5/11-103-2, 5/11-103-3
Public airports —
property acquisition
(municipalities with
fewer than 500,000
inhabitants)
Municipalities
65 ILCS 5/11-110-3
Flood control and
drainage — outside
corporate limits
Municipalities
65 ILCS 5/11-112-6
Flood control and
drainage — general
authority
Municipalities
65 ILCS 5/11-117-1, 5/11-117-7
Municipal utilities
Municipalities
65 ILCS 5/11-117-11
Public utilities —
submerged land under
public waters
Municipalities
65 ILCS 5/11-119.1-7, 5/11-119.110
Heat, power, and light
services — municipal
power agencies
Municipalities
65 ILCS 5/11-119.2-5, 5/11-119.27
Heat, power, and light
services — municipal
natural gas agencies
Municipalities
65 ILCS 5/11-121-2
Subways
Municipalities
65 ILCS 5/11-122-3
Street railways
Municipalities
65 ILCS 5/11-123-4
Harbors and terminals
Municipalities
65 ILCS 5/11-123-24
River or harbor
improvements
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THE POWER OF EMINENT DOMAIN: INTRODUCTION AND OVERVIEW
§1.39
Chapter Subject
Statute
Purpose
Municipalities
65 ILCS 5/11-125-2, 5/11-126-3,
5/11-130-9, 5/11-135-6
Establishing and
supplying waterworks
systems
Municipalities
65 ILCS 5/11-136-6
Joint waterworks or
sewer properties
Municipalities
65 ILCS 5/11-138-2
Water supply —
outside corporate
limits
Municipalities
65 ILCS 5/11-139-12
Combined waterworks
and sewerage systems
Municipalities
65 ILCS 5/11-140-3
Outlet sewers and
works
Municipalities
65 ILCS 5/11-141-10
Sewerage systems —
abatement of pollution
from industrial wastes
Municipalities
65 ILCS 5/11-148-6
Joint sewage disposal
plants with out-of-state
municipalities
Municipalities
65 ILCS 20/21-19
City of Chicago —
power to acquire
property for municipal
purposes
Municipalities
65 ILCS 20/21-21
City of Chicago —
excess condemnation
Municipalities
65 ILCS 95/8
Home equity
assurance
Municipalities
65 ILCS 100/3
Sports stadiums
Municipalities
65 ILCS 110/60
Economic
development project
areas
Nuclear Safety
420 ILCS 35/1
Radioactive waste
storage sites
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§1.39
ILLINOIS EMINENT DOMAIN PRACTICE
Chapter Subject
Statute
Purpose
Professions, Occupations, and
Business Operations — Service
and Sales
225 ILCS 435/23
Ferries
Professions and Occupations —
Service and Sales
225 ILCS 440/9
Highway advertising
signs
Property — Mineral Rights
765 ILCS 505/1
Mines
Property — Plats and Surveys
765 ILCS 230/2
U.S. Coast and
Geodetic Survey
Railroads
610 ILCS 5/17 – 5/19
Railroad companies
Railroads
610 ILCS 115/1, 115/2
Street railroads
Roads and Bridges
605 ILCS 5/4-501
IDOT — construction
and maintenance of
state highways
Roads and Bridges
605 ILCS 5/4-502
IDOT — building,
widening, altering,
relocating, or
straightening ditches
or draining
watercourses
Roads and Bridges
605 ILCS 5/4-505
IDOT — relocation of
railroad tracks or
public utility facilities
Roads and Bridges
605 ILCS 5/4-509
IDOT — replacement
of property of public
agencies
Roads and Bridges
605 ILCS 5/4-510
IDOT — rights-ofway for additions to
state highways
Roads and Bridges
605 ILCS 5/4-511
IDOT — replacement
of structures
demolished by
construction
1 — 32
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THE POWER OF EMINENT DOMAIN: INTRODUCTION AND OVERVIEW
§1.39
Chapter Subject
Statute
Purpose
Roads and Bridges
605 ILCS 5/5-107
County boards —
relocation of county
highways
Roads and Bridges
605 ILCS 5/5-801
Counties —
acquisition of property
for county highways
and township and
district roads
Roads and Bridges
605 ILCS 5/5-802
Counties — building,
widening, altering,
relocating, or
straightening ditches
or draining
watercourses
Roads and Bridges
605 ILCS 5/6-309, 5/6-801, 5/6802
Township and district
roads
Roads and Bridges
605 ILCS 5/6-804
County unit road
districts
Roads and Bridges
605 ILCS 5/8-102, 5/8-103
Freeways
Roads and Bridges
605 ILCS 5/8-106
Highway crossings
Roads and Bridges
605 ILCS 5/10-302
County toll bridges
Roads and Bridges
605 ILCS 5/10-602, 5/10-702
Municipal bridges and
ferries
Roads and Bridges
605 ILCS 10/9, 10/9.5, 10/10
Toll highways
Roads and Bridges
605 ILCS 115/14
Toll bridges
Roads and Bridges
605 ILCS 115/15
County taking of toll
bridges
Schools — Common Schools
105 ILCS 5/10-22.31b, 5/16-6
Joint buildings for area
vocational education
or education of
children with
disabilities
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§1.39
ILLINOIS EMINENT DOMAIN PRACTICE
Chapter Subject
Statute
Purpose
Schools — Common Schools
105 ILCS 5/10-22.35A, 5/16-6
School sites and office
facilities
Schools — Common Schools
105 ILCS 5/22-16
Acquisition of
property outside
school districts
Schools — Common Schools
105 ILCS 5/32-4.13
Acquisition of
property for school
purposes by special
charter districts with
fewer than 500,000
inhabitants
Schools — Common Schools
105 ILCS 5/34-20
Acquisition of
property for school
purposes in cities with
more than 500,000
inhabitants
Special Districts — Airport
70 ILCS 5/8.02 – 5/9
Municipal airports
Special Districts — Airport
70 ILCS 10/4
Interstate airport
authorities
Special Districts — Airport
70 ILCS 15/3
Kankakee River
Valley Area Airport
Authority
Special Districts — Civic Center
70 ILCS 200/2-20
Civic Center
Authorities
Special Districts — Civic Center
70 ILCS 200/5-35
Aledo Civic Center
Special Districts — Civic Center
70 ILCS 200/10-15
Aurora Civic Center
Special Districts — Civic Center
70 ILCS 200/15-40
Benton Civic Center
Special Districts — Civic Center
70 ILCS 200/20-15
Bloomington Civic
Center
Special Districts — Civic Center
70 ILCS 200/35-35
Brownstown Park
District Civic Center
1 — 34
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THE POWER OF EMINENT DOMAIN: INTRODUCTION AND OVERVIEW
§1.39
Chapter Subject
Statute
Purpose
Special Districts — Civic Center
70 ILCS 200/40-35
Carbondale Civic
Center
Special Districts — Civic Center
70 ILCS 200/55-60
Chicago South Civic
Center
Special Districts — Civic Center
70 ILCS 200/60-30
Collinsville Civic
Center
Special Districts — Civic Center
70 ILCS 200/70-35
Crystal Lake Civic
Center
Special Districts — Civic Center
70 ILCS 200/75-20
Decatur Civic Center
Special Districts — Civic Center
70 ILCS 200/80-15
DuPage County Civic
Center
Special Districts — Civic Center
70 ILCS 200/85-35
Elgin Civic Center
Special Districts — Civic Center
70 ILCS 200/95-25
Herrin Civic Center
Special Districts — Civic Center
70 ILCS 200/105-15, 200/105-20
Illinois-Michigan
Canal National
Heritage Corridor
Civic Center
Special Districts — Civic Center
70 ILCS 200/110-35
Illinois Valley Civic
Center
Special Districts — Civic Center
70 ILCS 200/115-35
Jasper County Civic
Center
Special Districts — Civic Center
70 ILCS 200/120-25
Jefferson County Civic
Center
Special Districts — Civic Center
70 ILCS 200/125-15
Jo Daviess County
Civic Center
Special Districts — Civic Center
70 ILCS 200/130-30
Katherine Dunham
Metropolitan
Exposition and
Auditorium Authority
Special Districts — Civic Center
70 ILCS 200/145-35
Marengo Civic Center
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§1.39
ILLINOIS EMINENT DOMAIN PRACTICE
Chapter Subject
Statute
Purpose
Special Districts — Civic Center
70 ILCS 200/150-35
Mason County Civic
Center
Special Districts — Civic Center
70 ILCS 200/155-15
Matteson Civic Center
Special Districts — Civic Center
70 ILCS 200/160-35
Maywood Civic
Center
Special Districts — Civic Center
70 ILCS 200/165-35
Melrose Park Civic
Center
Special Districts — Civic Center
70 ILCS 200/180-35
Normal Civic Center
Special Districts — Civic Center
70 ILCS 200/185-15
Oak Park Civic Center
Special Districts — Civic Center
70 ILCS 200/195-35
Ottawa Civic Center
Special Districts — Civic Center
70 ILCS 200/200-15
Pekin Civic Center
Special Districts — Civic Center
70 ILCS 200/205-15
Peoria Civic Center
Special Districts — Civic Center
70 ILCS 200/210-35
Pontiac Civic Center
Special Districts — Civic Center
70 ILCS 200/215-15
Quad City Civic
Center
Special Districts — Civic Center
70 ILCS 200/220-30
Quincy Civic Center
Special Districts — Civic Center
70 ILCS 200/225-35
Randolph County
Civic Center
Special Districts — Civic Center
70 ILCS 200/230-35
River Forest Civic
Center
Special Districts — Civic Center
70 ILCS 200/235-40
Riverside Civic Center
Special Districts — Civic Center
70 ILCS 200/245-35
Salem Civic Center
Special Districts — Civic Center
70 ILCS 200/255-20
Springfield
Metropolitan
Exposition and
Auditorium Authority
Special Districts — Civic Center
70 ILCS 200/260-35
Sterling Civic Center
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THE POWER OF EMINENT DOMAIN: INTRODUCTION AND OVERVIEW
§1.39
Chapter Subject
Statute
Purpose
Special Districts — Civic Center
70 ILCS 200/265-20
Vermilion County
Civic Center
Special Districts — Civic Center
70 ILCS 200/270-35
Waukegan Civic
Center
Special Districts — Civic Center
70 ILCS 200/275-35
West Frankfort Civic
Center
Special Districts — Civic Center
70 ILCS 200/280-20
Will County
Metropolitan
Exposition and
Auditorium Authority
Special Districts — Civic Center
70 ILCS 210/5
Metropolitan Pier and
Exposition Authority
Special Districts — Conservation 70 ILCS 405/22.04
Soil and water
conservation districts
Special Districts — Conservation 70 ILCS 410/10, 410/12
Conservation districts
Special Districts — Development 70 ILCS 507/15
Fort Sheridan
Redevelopment
Commission
Special Districts — Development 70 ILCS 520/8
Southwestern Illinois
Development
Authority
Special Districts — Drainage
70 ILCS 605/4-17
Drainage districts
Special Districts — Drainage
70 ILCS 615/5
Metropolitan Water
Reclamation District
of Greater Chicago
Special Districts — Fire
Protection
70 ILCS 705/10
Fire protection
districts
Special Districts — Forest
Preserve
70 ILCS 805/6
Forest preserve
districts outside Cook
County — forest
preserves
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§1.39
ILLINOIS EMINENT DOMAIN PRACTICE
Chapter Subject
Statute
Purpose
Special Districts — Forest
Preserve
70 ILCS 805/18.8
Forest preserve
districts outside Cook
County — recreational
facilities
Special Districts — Forest
Preserve
70 ILCS 810/8
Cook County Forest
Preserve District —
forest preserves
Special Districts — Forest
Preserve
70 ILCS 810/38
Cook County Forest
Preserve District —
recreational facilities
Special Districts — Health
70 ILCS 910/15, 910/16
Hospital districts
Special Districts — Health
70 ILCS 915/3, 915/4.5
Medical center
district — Illinois
Medical District
Commission
Special Districts — Health
70 ILCS 915/9
Medical center
district — State of
Illinois and City of
Chicago
Special Districts — Health
70 ILCS 920/5
Tuberculosis
sanitarium districts
Special Districts — Health
70 ILCS 925/20
Medical center
district — State of
Illinois and City of
Springfield
Special Districts — Mosquito
Abatement
70 ILCS 1005/7
Mosquito abatement
districts
Special Districts — Museum
70 ILCS 1105/8
Museum districts
Special Districts — Park
70 ILCS 1205/8-1
Park districts — park
land, boulevards, and
driveways
Special Districts — Park
70 ILCS 1205/9-2, 9-4
Park districts —
airports
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THE POWER OF EMINENT DOMAIN: INTRODUCTION AND OVERVIEW
§1.39
Chapter Subject
Statute
Purpose
Special Districts — Park
70 ILCS 1205/11-3
Park districts —
abutting public waters
Special Districts — Park
70 ILCS 1205/11.1-3
Park districts —
operation and
maintenance of
harbors for
recreational purposes
Special Districts — Park
70 ILCS 1225/1, 1225/2
Park commissioners —
street widening
Special Districts — Park
70 ILCS 1230/1
Park commissioners —
riparian rights
Special Districts — Park
70 ILCS 1250/2
Park commissioners —
driveways and
boulevards
Special Districts — Park
70 ILCS 1290/1
Aquariums and
museums in public
parks
Special Districts — Park
70 ILCS 1305/1, 1305/2
Park districts —
airports
Special Districts — Park
70 ILCS 1310/5
Park districts —
elevated highways and
boulevards
Special Districts — Park
70 ILCS 1505/15
Chicago Park District —
property acquisition
Special Districts — Park
70 ILCS 1505/25.1
Chicago Park District —
parking facilities
Special Districts — Park
70 ILCS 1505/26.3
Chicago Park District —
harbor facilities
Special Districts — Park
70 ILCS 1570/5
Lincoln Park
Special Districts — Port
70 ILCS 1805/8
Havana Regional Port
District
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
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§1.39
ILLINOIS EMINENT DOMAIN PRACTICE
Chapter Subject
Statute
Purpose
Special Districts — Port
70 ILCS 1810/7
Illinois International
Port District (Lake
Calumet area)
Special Districts — Port
70 ILCS 1815/13
Illinois Valley
Regional Port District
Special Districts — Port
70 ILCS 1820/5
Jackson-Union
Counties Regional
Port District
Special Districts — Port
70 ILCS 1825/5
Joliet Regional Port
District
Special Districts — Port
70 ILCS 1830/14
Kaskaskia Regional
Port District
Special Districts — Port
70 ILCS 1835/6
Mt. Carmel Regional
Port District
Special Districts — Port
70 ILCS 1845/5
Seneca Regional Port
District
Special Districts — Port
70 ILCS 1850/4, 1850/5
Shawneetown
Regional Port District
Special Districts — Port
70 ILCS 1855/4, 1855/5
Southwest Regional
Port District (St. Clair
County)
Special Districts — Port
70 ILCS 1860/5
America’s Central Port
District (Madison
County)
Special Districts — Port
70 ILCS 1865/5
Waukegan Port
District
Special Districts — Port
70 ILCS 1870/8
White County Port
District
Special Districts — Railroad
70 ILCS 1905/16
Railroad Terminal
Authority
1 — 40
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THE POWER OF EMINENT DOMAIN: INTRODUCTION AND OVERVIEW
§1.39
Chapter Subject
Statute
Purpose
Special Districts — Railroad
70 ILCS 1915/25
Grand Avenue
Railroad Relocation
Authority
Special Districts — River
Conservancy
70 ILCS 2105/9b, 2105/10a
River conservancy
districts
Special Districts — Sanitary
70 ILCS 2205/15, 2205/18 –
2205/20
Sanitary districts
Special Districts — Sanitary
70 ILCS 2305/15, 2305/24
North Shore Sanitary
District
Special Districts — Sanitary
70 ILCS 2405/8, 2405/15, 2405/16
Sanitary districts —
sewage disposal
Special Districts — Sanitary
70 ILCS 2405/16.9, 2405/16.10
Sanitary districts —
waterworks
Special Districts — Sanitary
70 ILCS 2405/18
Maintenance of water
channel
Special Districts — Sanitary
70 ILCS 2605/8, 2605/16, 2605/35
Metropolitan Water
Reclamation District
of Greater Chicago
Special Districts — Sanitary
70 ILCS 2805/10
Sanitary districts outside
municipalities —
corporate purposes
Special Districts — Sanitary
70 ILCS 2805/24
Sanitary districts outside
municipalities —
sewage disposal
Special Districts — Sanitary
70 ILCS 2805/25
Sanitary districts outside
municipalities —
property held for
public use
Special Districts — Sanitary
70 ILCS 2805/26i, 2805/26j
Sanitary districts outside
municipalities —
drainage systems
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§1.39
ILLINOIS EMINENT DOMAIN PRACTICE
Chapter Subject
Statute
Purpose
Special Districts — Sanitary
70 ILCS 2805/27
Sanitary districts outside
municipalities —
maintenance of dams
Special Districts — Sanitary
70 ILCS 2805/32k
Sanitary districts outside
municipalities —
water supply
Special Districts — Sanitary
70 ILCS 2805/32l
Sanitary districts outside
municipalities —
waterworks
Special Districts — Sanitary
70 ILCS 2905/2-7, 2905/2-8
Metro-East Sanitary
District
Special Districts — Sanitary
70 ILCS 3010/10
Sewerage systems
Special Districts — Sports
Facilities
70 ILCS 3205/12
Sports facilities
authorities
Special Districts — Surface
Water Protection
70 ILCS 3405/16
Surface water
protection districts
Special Districts — Transit
70 ILCS 3605/7
Metropolitan Transit
Authority —
acquisition of
property, equipment,
etc.
Special Districts — Transit
70 ILCS 3605/10
Metropolitan Transit
Authority — removal
or relocation of utility
structures
Special Districts — Transit
70 ILCS 3610/3, 3610/5
Local mass transit
district facilities
Special Districts — Transit
70 ILCS 3615/2.06, 3615/2.13,
3615/2.18, 3615/2.21
Regional
Transportation
Authority
Special Districts — Water
70 ILCS 3705/8
Public water districts —
waterworks properties
1 — 42
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THE POWER OF EMINENT DOMAIN: INTRODUCTION AND OVERVIEW
§1.39
Chapter Subject
Statute
Purpose
Special Districts — Water
70 ILCS 3705/23a
Public water districts —
sewerage properties
Special Districts — Water
70 ILCS 3715/6
Water authorities —
wells, reservoirs, and
other water facilities
Special Districts — Water
70 ILCS 3715/27
Water authorities —
ingress and egress
easements and rightsof-way
Townships
60 ILCS 1/115-55
Open space
Townships
60 ILCS 1/120-10
Parks
Townships
60 ILCS 1/130-5
Cemeteries
Townships
60 ILCS 1/205-40
Waterworks and
sewerage systems
Urban Problems
315 ILCS 5/14
Blighted areas
redevelopment
Urban Problems
315 ILCS 10/5
Blighted vacant areas
Urban Problems
315 ILCS 20/9, 20/42
Neighborhood
redevelopment
corporations
Urban Problems
315 ILCS 25/4, 25/6
Conservation of urban
residential areas
Urban Problems
315 ILCS 30/12
Urban renewal —
slum and blighted
areas
Urban Problems
315 ILCS 30/20, 30/22
Urban renewal —
conservation areas
Urban Problems
315 ILCS 30/24
Municipal departments
of urban renewal
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
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§1.39
ILLINOIS EMINENT DOMAIN PRACTICE
Chapter Subject
Statute
Purpose
Utilities
220 ILCS 5/4-502
Acquisition of small
public utilities by
capable public utilities
Utilities
220 ILCS 5/8-509
Public utilities —
construction of
alterations, additions,
extensions, or
improvements
Utilities
220 ILCS 15/1
Distribution,
transportation, or
storage of natural or
manufactured gas
Utilities
220 ILCS 30/13
Electric cooperatives —
facilities
Utilities
220 ILCS 55/2, 55/3
Telegraph companies —
construction,
alteration, or repair of
lines
Utilities
220 ILCS 65/4
Telecommunications
carriers —
construction,
maintenance,
alteration, or extension
of systems
Vehicles
625 ILCS 5/18c-7501
Commercial rail
carriers
Waterways
615 ILCS 5/19
DNR — public water
preserves
Waterways
615 ILCS 10/7.8
DNR — Illinois
Waterway
Waterways
615 ILCS 15/7
DNR — flood control
Waterways
615 ILCS 45/10
DNR — Illinois and
Michigan Canal
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THE POWER OF EMINENT DOMAIN: INTRODUCTION AND OVERVIEW
§1.40
Chapter Subject
Statute
Purpose
Wildlife
520 ILCS 5/1.9
DNR — acquiring
property for
conservation, hunting
and fishing, and
wildlife refuge
purposes
Wildlife
520 ILCS 25/35
DNR — acquiring
property for habitats
B. [1.40] Provisions of Eminent Domain Act Granting the Power of Eminent Domain
Through Quick-Take Proceedings
Citation
Governmental Unit
Purpose
735 ILCS 30/25-7-103.1
State of Illinois, Illinois Toll
Highway Authority, St. Louis
Metropolitan Area Airport
Authority
Highways
735 ILCS 30/25-7-103.3
Illinois Department of Commerce
and Economic Opportunity
For purposes specified
in Illinois Coal
Development Bond
Act
735 ILCS 30/25-7-103.5
St. Louis Metropolitan Area
Airport Authority
For purposes specified
in the St. Louis
Metropolitan Area
Airport Authority Act
735 ILCS 30/25-7-103.8
Sanitary districts created under the
Metropolitan Water Reclamation
District Act
For purposes specified
in the Metropolitan
Water Reclamation
District Act
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
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§1.40
ILLINOIS EMINENT DOMAIN PRACTICE
Citation
Governmental Unit
Purpose
735 ILCS 30/25-7-103.9
Rail carriers
For purposes specified
in §18c-7501 of the
Illinois Vehicle Code,
625 ILCS 5/1-100, et
seq.
735 ILCS 30/25-7-103.11
Villages with fewer than 15,000
inhabitants
Refuse-derived fuel
system and industrial
development that will
use steam and
electricity
735 ILCS 30/25-7-103.12
Municipalities with more than
500,000 inhabitants
For purposes set forth
in §11-61-1a and
Divisions 74.2 and
74.3 of Article 11 of
the Illinois Municipal
Code, 65 ILCS 5/1-1-1,
et seq.
735 ILCS 30/25-7-103.13
Home-rule municipalities
For enterprise zone
purposes in an area
designated under the
Illinois Enterprise
Zone Act, 20 ILCS
55/1, et seq.
735 ILCS 30/25-7-103.14
Illinois Sports Facilities Authority
For purposes specified
in §12 of the Illinois
Sports Facilities
Authority Act, 70
ILCS 3205/1, et seq.
735 ILCS 30/25-7-103.15
Municipalities with more than 2
million inhabitants
For sports stadium
purposes as specified
in §3 of the Sports
Stadium Act, 65 ILCS
100/1, et seq.
735 ILCS 30/25-7-103.18
Airport authority located solely
within the boundaries of Madison
County and organized pursuant to
the Airport Authorities Act, 70 ILCS
5/0.01, et seq.
1 — 46
For purposes
specified in the
Airport Authorities
Act
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THE POWER OF EMINENT DOMAIN: INTRODUCTION AND OVERVIEW
§1.40
Citation
Governmental Unit
735 ILCS 30/25-7-103.19
Any unit of local government
Permanent easement
for maintaining,
dredging, or cleaning
Little Calumet River
735 ILCS 30/25-7-103.20
Any unit of local government
Permanent easement
for maintaining,
dredging, or cleaning
Salt Creek in DuPage
County
735 ILCS 30/25-7-103.21
St. Clair County
Joint-use facility at
Scott Air Force Base
735 ILCS 30/25-7-103.22
Village of Summit
Waste-to-energy
plant
735 ILCS 30/25-7-103.27
Metropolitan Pier and Exposition
Authority
Providing additional
grounds, buildings,
and facilities
735 ILCS 30/25-7-103.149
City of Chicago
O’Hare
Modernization
Program purposes
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
Purpose
1 — 47
2
Initial Procedures and
Pleadings of the State
and Other Condemning
Bodies
RICHARD F. FRIEDMAN
Neal & Leroy, LLC
Chicago
®
©COPYRIGHT 2016 BY IICLE .
2—1
ILLINOIS EMINENT DOMAIN PRACTICE
I. Introduction
A. [2.1] The Eminent Domain Act
B. [2.2] Scope of Chapter
II. Precondemning Procedure
A.
B.
C.
D.
E.
Preliminary Considerations
Hiring Appraisers
Personal Inspection of the Property
Identifying the Parties
Compliance with Federal and State Prerequisites — Environmental, Landmark
Protection, Relocation, and Farmland Preservation Statutes
F. [2.8] Surveys
G. [2.9] Environmental Assessment
H. [2.10] Owner’s Due-Process Rights Prior to Site Selection or Governments
Enactment of Condemnation Authority
I. [2.11] Identifying the Occupants
J. [2.12] Special Parties — Active Duty Military Personnel and Their Dependents
K. [2.13] Relocation Reimbursement
L. [2.14] Relocation Coordinator
M. [2.15] Sixty-Day Notice Letter for State Agencies
N. [2.16] Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970
O. Conditions Precedent to Filing
1. [2.17] Authority and Delegation of Authority To Implement Condemnation
2. [2.18] Successive Condemnations
3. [2.19] Prerequisites for New Quick-Take Authority
4. [2.20] Quick-Take — What Is a Formally Adopted Schedule or Plan of
Operation?
5. [2.21] Availability of Funds Not Condition Precedent to Filing Petition
6. [2.22] Final Plans of Project Not Condition Precedent to Filing Petition
7. [2.23] Prior Notice Not Condition Precedent to Filing Petition — Other than by
State Agencies
8. [2.24] Delay in Instituting or Prosecuting Condemnation Action Not Fatal
9. [2.25] Approval of Illinois Commerce Commission for Acquisition of Public
Utility Property
10. [2.26] Special Considerations — Railroad Property
P. [2.27] Condemnation for Use by Another Governmental Entity — Intergovernmental
Cooperation
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[2.3]
[2.4]
[2.5]
[2.6]
[2.7]
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INITIAL PROCEDURES AND PLEADINGS OF THE STATE AND OTHER CONDEMNING BODIES
Q. [2.28] Condemnation of Property of Another Public Entity — Municipal Acquisition
of Public Property
R. [2.29] Preservation of Status Quo While Condemnation Is Pending
S. [2.30] Notice of Right-of-Way Designation and Advance Acquisition
T. [2.31] Prefiling Contacts with the Owner
U. [2.32] Records of Conversations
V. [2.33] Prefiling Inspection
W. Attempt To Agree as to Compensation
1. [2.34] Attempt To Agree a Prerequisite
2. [2.35] Condemnation Following Unsuccessful Negotiations by the Expected
Developer
3. [2.36] Who May Submit the Condemnor’s Offer?
4. [2.37] Testing the Sufficiency of the Attempt
5. [2.38] Form Indicating Attempt To Agree
6. [2.39] Conferences with Unrepresented or Represented Defendant
7. [2.40] Terminating the Negotiations
8. [2.41] Waiver
9. [2.42] Multiple Owners, Incompetents, and Nonresidents
10. [2.43] Standards for Finding an Attempt To Agree
11. [2.44] Good-Faith Offer — Reasonableness of the Amount
12. [2.45] Successful Negotiations — Acquisition by Agreement
13. [2.46] Voluntary Conveyance
14. [2.47] Alternate Acquisition by Purchase of Mortgage or Other Lien Rights
15. [2.48] Statements by Public Officials — Are They Binding?
III. Complaint for Condemnation
A. [2.49] Source and Purpose
B. [2.50] Elements of the Complaint for Condemnation
1. [2.51] Name in Which the Action Is Brought
2. [2.52] Necessary Parties Defendant
3. [2.53] Unknown Owners
4. [2.54] Statement of Authority
5. [2.55] Statement of Purpose
6. [2.56] Statement of Necessity
7. [2.57] Necessity — Replacement Property
8. [2.58] Failure To Agree on Compensation
9. [2.59] Description of Property Sought
10. [2.60] Description of Interest Sought
11. [2.61] Jury Demand
12. [2.62] Prayer for Relief
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ILLINOIS EMINENT DOMAIN PRACTICE
C.
D.
E.
F.
G.
H.
I.
J.
K.
[2.63]
[2.64]
[2.65]
[2.66]
[2.67]
[2.68]
[2.69]
[2.70]
[2.71]
Summons
Service by Publication
Service of Summons; Special Process Servers
Excusing Service of Complaint for Condemnation
Motions for Appointment of Guardians ad Litem
Lis Pendens Notice
Amendments to the Complaint for Condemnation
Abandonment — Condemnor’s Dismissal of the Complaint
Immediate Right of Entry by Necessity
IV. Appendix
A. [2.72] Additional Authorities
B. Sample Forms
1. [2.73] First-Contact Letter
2. [2.74] Sixty-Day Notice Letter
3. [2.75] Letter To Request Inspection
4. [2.76] Complaint for Condemnation
5. [2.77] Lis Pendens Notice
6. [2.78] Affidavit for Publication
7. [2.79] Affidavit as to Unknown Owners
8. [2.80] Letter of Final Good-Faith Offer
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INITIAL PROCEDURES AND PLEADINGS OF THE STATE AND OTHER CONDEMNING BODIES
§2.1
I. INTRODUCTION
A. [2.1] The Eminent Domain Act
On January 1, 2007, the Eminent Domain Act (EDA), 735 ILCS 30/1-1-1, et seq., became
law, applying to all condemnation complaints filed thereafter. The bill that created the EDA was
431 pages. Despite its length, the EDA had only five changes of substance over the eminent
domain provisions of former Article VII of the Code of Civil Procedure, 735 ILCS 5/1-101, et
seq., three of which changes were relatively minor. Most of the remainder of the text was devoted
to changing references for consistency or to inconsequential language changes.
The two major changes — modifying the standards for determining public use and requiring
the government to pay relocation costs of persons displaced from the acquired property — are
major changes for units of local government but will have little impact on state takings. Because
the state’s exercise of eminent domain is almost exclusively for public ownership and control and
because the definition of “public use” in the EDA (see 735 ILCS 30/5-5-5) is not materially
different from the pre-EDA standard, there is no change for these condemnations. Similarly,
because a large percentage of state acquisitions are for federally assisted transportation projects
for which, as discussed later in this section, the payment of relocation reimbursement has been a
requirement since 1970, the relocation requirement adds little.
The EDA was passed in an attempt to limit the use of condemnation power to assist private
development. Since 1954, the United Sates Supreme Court has held that it is not a violation of the
Public Use Clause of the Fifth Amendment for government to acquire property through eminent
domain and then transfer the property to private persons for economic development. Berman v.
Parker, 348 U.S. 26, 99 L.Ed. 27, 75 S.Ct. 98 (1954). The Court’s decision in Kelo v. City of New
London, Connecticut, 545 U.S. 469, 162 L.Ed.2d 439, 125 S.Ct. 2655 (2005), affirmed the power
to condemn for private development but created a public backlash. In response to the backlash,
the Illinois General Assembly, like the legislatures in many states, enacted laws with the goal of
limiting the power of government to condemn property for the purpose of conveying it to a
private party for economic development and enacted other reforms.
The EDA’s major changes are as follows:
Standards for determining public use. Property may not be taken unless it is for a “public
use.” 735 ILCS 30/5-5-5(a). If the property will be subject to public ownership and control, it is
for a public use if the condemning authority proves that “(i) the acquisition of the property is
necessary for a public purpose and (ii) the acquired property will be owned and controlled by the
condemning authority or another governmental entity.” 735 ILCS 30/5-5-5(b). In substance, this
language is little changed from the pre-EDA standard. Any acquisition for a road project,
government office building, or public park will be for public use under this standard.
The EDA’s major change is its codification of the standards of proof for acquisitions when
the ultimate user is not a government body, such as for the clearance of blight, the assemblage of
properties for private redevelopment, or the lease or operation of government property by a
private entity. The EDA imposes a variety of standards that apply depending on the purpose of
the acquisitions. See 735 ILCS 30/5-5-5(c) through 30/5-5-5(f). The most stringent standard
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§2.1
ILLINOIS EMINENT DOMAIN PRACTICE
applies to acquisitions for private ownership or control, or both. 735 ILCS 30/5-5-5(c). In these
cases, the condemnor must prove by clear and convincing evidence that the acquisition is (1)
primarily for the benefit, use, or enjoyment of the public and (2) necessary for a public purpose.
Section 5-5-5(c) reverses the former presumption of validity enjoyed by government acquisitions.
Although the EDA has been in effect since 2007, very few appellate court decisions have
come down construing the application of §5-5-5. One of the few, if not the only case, is City of
Joliet v. Mid-City National Bank of Chicago, No. 05 CV 6746, 2014 WL 4667254, *19 (N.D.Ill.
Sep. 17, 2014) (eradication of blight is “public use” pursuant to §5-5-5(b).
Relocation reimbursement. Prior to the EDA, persons displaced by condemnation were
rarely entitled to be paid for their moving and other related expenses under state law. Since 1970,
under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970
(URA), 42 U.S.C. §4601, et seq., in acquisitions for federally funded projects or other projects
with federal involvement, the condemnor was required to pay the relocation costs for owners and
other persons displaced for the project. The EDA requires relocation payments for all Illinois
condemnations in the same manner as under the URA. 735 ILCS 30/10-5-62. Relocation
reimbursements are described in more detail in §2.13 below. This is a major change for most
local condemnors, who are now required to budget and pay relocation costs.
The EDA’s minor changes are as follows:
Variable valuation date. The former eminent domain statute established the date as of which
condemned property should be valued as the date of filing the complaint. The valuation date did
not change, except for abusive delay by the condemnor. 735 ILCS 30/10-5-60 retained the date of
filing as the valuation date but authorized the judge to move the date forward if the case does not
proceed to trial within two years of filing the complaint. The statute permitted the court to decide
on a new date “in the interest of justice and equity” but not later than the date of trial (or, in the
case of quick-take, not later than the date that the condemnor took title to the property). Id.
In 2011, the Illinois Supreme Court invalidated 735 ILCS 30/10-5-60 sub silentio, adopting
the rule of Kirby Forest Enterprises, Inc. v. United States, 467 U.S. 1, 81 L.E.2d 1, 104 S.Ct.
2187 (1984), that the valuation date is the date on which the condemnor pays for the property and
takes possession of it. Forest Preserve District of DuPage County v. First National Bank of
Franklin Park, 2011 IL 110759, 961 N.E.2d 775, 356 Ill.Dec. 386.
Limits on disposition of acquired property within five years. Property that is acquired by
condemnation or threat of condemnation for public ownership and control may not be disposed of
for five years unless certain public bidding procedures are followed. 735 ILCS 30/10-5-105.
During the five-year holding period, the government must dispose of the property by bid. The
state must follow the State Property Control Act, 30 ILCS 605/1, et seq., and municipalities must
observe the procedures of the Illinois Municipal Code, 65 ILCS 5/1-1-1, et seq. 735 ILCS 30/105-105(c), 30/10-5-105(d). The EDA also has detailed disposition procedures for other
governmental entities, including that the property be sold for not less than 80 percent of its
appraised value. 735 ILCS 30/10-5-105(e).
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INITIAL PROCEDURES AND PLEADINGS OF THE STATE AND OTHER CONDEMNING BODIES
§2.3
Offer of settlement at trial. In trials for the acquisition of property for private ownership or
control, the defendant may make an offer of settlement after the close of discovery until 14 days
before the start of trial. 735 ILCS 30/10-5-110(b). If the condemnor rejects the offer and the
verdict exceeds the offer, the condemnor must pay the owner’s costs and attorneys’ fees.
Attorneys’ fees are calculated as a sliding percentage of the “net benefit,” the portion of the
award that exceeds the condemnor’s last written offer. 735 ILCS 30/10-5-110(f). 735 ILCS
30/10-5-110 resembles Federal Rule of Civil Procedure 68. The offer of settlement is described in
more detail in §6.37 of this handbook. Because this offer-of-settlement procedure applies to
acquisitions for other than public ownership and control, it has little application to the state and
will not apply to other condemnors involving acquisition for traditional uses such as roads,
schools, parks, and the like.
B. [2.2] Scope of Chapter
This chapter outlines the procedures that the attorney for the condemning body will follow
from the time the case is assigned to the filing of the complaint for condemnation. Most of the
chapter is applicable to proceedings on behalf of local governments and similar governmental
bodies as well as to proceedings on behalf of the State of Illinois and its agencies. For both the
state and subordinate governmental entities, the constitutional requirement of just compensation
and the procedural and substantive provisions of the Eminent Domain Act apply. One major
difference lies in the superior dignity of the state. As a sovereign, the State of Illinois has inherent
power of condemnation. Authority granted by the Illinois Constitution and delegated by statute to
departments of state government is sufficient to justify the exercise of eminent domain. No
additional legislative authority is necessary for the state and its agencies. See, e.g., §4-501 of the
Illinois Highway Code, 605 ILCS 5/1-101, et seq. For all lesser divisions of the state, including
local governments and special state agencies and subdivisions, two additional requirements are
necessary. First, there must be express delegation of the power of eminent domain (home-rule
units of local government do not require this delegation). Second, each individual taking or
project requires specific authority. For all condemnations other than those exercised by the State
of Illinois and its agencies, there must be an authorizing ordinance or resolution, and this
authority must be set forth in the complaint for condemnation. For example, if a statute grants
authority to a state university to exercise condemnation, the university’s governing board should
specifically authorize each project and acquisition.
With only a few exceptions, the law and procedures described in this chapter apply to
acquisitions by any condemning body, including the State of Illinois, its subdivisions, or units of
local government. In addition, attorneys for condemnees will want to be familiar with the
principles described in this chapter so that they can assure themselves that all of the protections
and prerequisites are carried out before the state exercises the extraordinary power of
expropriation.
II. PRECONDEMNING PROCEDURE
A. [2.3] Preliminary Considerations
The attorney should be involved at the outset if land acquisition is contemplated. This early
involvement helps ensure that the condemning body properly exercises its authority, that
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§2.4
ILLINOIS EMINENT DOMAIN PRACTICE
requirements imposed by state and federal funding sources are complied with, that the owner is
treated fairly, that the acquisition proceeds expeditiously, and that the price paid is fair to all
sides.
Frequently, however, the lawyer representing the condemnor has had no involvement with
the case until the condemnor has determined that it cannot obtain the property without
condemnation. Agencies of the State of Illinois with statutory authority to acquire property by
condemnation, such as the Department of Transportation or the Department of Natural Resources,
have their own staffs capable of negotiating with landowners, obtaining appraisals, and generally
setting the stage for the filing of the condemnation petition. In these cases, the careful practitioner
will double-check the preliminary work to make certain that all statutory and other requirements
have been met. These bodies normally supply the lawyer with a form of complaint for
condemnation. This form should be reviewed and, if necessary, adapted to the particular
assignment.
The first task of a lawyer representing a client in a condemnation proceeding is to ascertain
the relevant facts at an early stage in the acquisition process. A good working knowledge of the
facts will enable the attorney to discuss the case more intelligently with the landowner and the
condemnor, but, more importantly, it will give a better idea of the options available to the client
from both a legal and a practical standpoint.
What is the purpose of the acquisition? Who is the condemning body, and what powers does
it have? What steps has the condemnor already taken toward acquisition? What property interests
are sought to be acquired? What is the extent of the landowner’s total holding, and how will the
remainder of the land be affected by the taking? Are federal or state funds involved? Who, in
addition to the fee owner, may be interested in the property? Will tenants or others seek to share
in the award? Who will be entitled to relocation benefits? Will benefits accrue to the remainder of
the property because of the public improvement? What is the schedule for the project? The
answers to these questions often shape the course of action to be taken on behalf of the client.
The attorney representing the condemnor should also be involved in the drafting of the
authorizing ordinance or resolution. Village of Cary v. Trout Valley Ass’n, 282 Ill.App.3d 165,
667 N.E.2d 1082, 217 Ill.Dec. 689 (2d Dist. 1996), illustrates the pitfalls of amateurish
preparation. The village’s complaint for condemnation was dismissed because its acquisition
ordinance did not follow the authorizing statute by specifying the financial details of the sewer
project, and neither did the village comply with the requirement to publish the ordinance.
Research into the authority to exercise condemnation would have avoided this embarrassing and
expensive scenario.
B. [2.4] Hiring Appraisers
In order to evaluate the condemnor’s offer properly, the market value of the property,
including damage to the remainder, must be estimated. This determination requires that the
opinion of a qualified real estate appraiser be obtained.
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INITIAL PROCEDURES AND PLEADINGS OF THE STATE AND OTHER CONDEMNING BODIES
§2.4
The attorney should participate in the choosing of the appraiser to ensure that the appraiser is
one who understands and is comfortable with the legal theories involved. An experienced
attorney will know which appraisers he or she can work with well, which are best suited for
particular assignments, and which will best convey their opinions to the jury.
The appraiser must have a thorough understanding of his or her role and assignment before
beginning the appraisal. This prior understanding is especially important when federal grants are
expected. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970
and consolidated regulations promulgated thereunder applicable to acquisitions funded by federal
agencies (49 C.F.R. pt. 24) require that the condemning body offer the owner an amount no less
than the approved appraisal value of the property. Thus the initial appraisals establish the lowest
price of the property.
Choosing an appraiser is not always easy, and no single rule is applicable to all cases. For
example, a real estate broker who may be well qualified to value a single-family residence is not
necessarily qualified to value an industrial park even though he or she could qualify as an expert
on the witness stand.
Factors to be considered in choosing the appraiser include whether a full or partial taking is
involved; present zoning and the probability of rezoning; the highest and best use of the property;
and the appraiser’s background, experience, and knowledge of the subject property. In any case,
the attorney should review the law of compensability with the appraiser to ensure that all
compensable elements of damage will be considered by the appraiser.
Many appraisers belong to professional societies, admission to which is granted to appraisers
with certain education, training, or experience. These societies include the Appraisal Institute
(formed by a merger of the American Institute of Real Estate Appraisers and the Society of Real
Estate Appraisers), whose members, designated as Member Appraisal Institute (MAI) or Senior
Residential Appraiser (SRA), have passed the most stringent requirements.
Other professional organizations include the National Association of Independent Fee
Appraisers, the International Right of Way Association, the American Right of Way Association,
and the American Society of Appraisers. Other qualifications could include memberships on local
real estate boards and experience as a real estate broker or developer. Although admission to
membership in professional societies may ensure that an appraiser will do a reasonably thorough
job and that others have found him or her to be qualified, in choosing an appraiser the attorney
should be guided by his or her own knowledge of an appraiser’s ability and his or her evaluation
of the appraiser’s knowledge, experience, and judgment.
The Illinois Department of Transportation (IDOT) has developed forms for use by its
appraisers. These forms ensure uniformity in the methodology used and the kinds of information
relied on by each appraiser. Frequently, the appraiser is already retained by the state agency. The
forms may already be filled in and the appraisal completed by the time the attorney is assigned to
a case. An attorney should nevertheless exercise independent judgment as to the expert witness to
use for the purpose of a jury or bench trial. It may be necessary to retain a different appraiser if
the particular situation warrants.
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§2.5
ILLINOIS EMINENT DOMAIN PRACTICE
The appraiser should be instructed to follow the Uniform Standards for Professional
Appraisal Practice (USPAP) adopted by the Appraisal Standards Board of the Appraisal
Foundation. The courts increasingly refer to an appraiser’s adherence to the USPAP as a measure
of an appraisal’s credibility. See, e.g., People ex rel. Department of Transportation v. Kotara,
L.L.C., 379 Ill.App.3d 276, 884 N.E.2d 1235, 318 Ill.Dec. 964 (3d Dist. 2008) (owner should
have been afforded opportunity of cross-examining condemnor’s witness about whether he had
followed USPAP).
C. [2.5] Personal Inspection of the Property
An attorney should personally confirm the situation and condition of the subject property at
the earliest opportunity. The attorney should inspect the property to be acquired, including (if
feasible) the interior, the surrounding properties, and the neighborhood. This inspection will
better equip the attorney to assess theories of valuation, to discuss the property with appraisers in
a more informed way, and to consider the property’s effect on the jury.
D. [2.6] Identifying the Parties
From the beginning, it is necessary to determine the identities of the owners and other
persons having an interest in the property to be acquired. This may be done through a current
“minutes of condemnation” or commitment for title insurance obtained from a title insurance
company. Any identifiable owner or interested person who is not made a party to a condemnation
action gives rise to at least two risks. If compensation is determined and paid without service on
an interested party, this person can later join the action and seek additional compensation. In
addition, the court may not have jurisdiction over such nonjoined party and would be unable to
order the party to award title or possession of the property to the state. Village of Algonquin v.
Lowe, 2011 IL App (2d) 100603, 954 N.E.2d 228, 352 Ill.Dec. 368 (condemnation actions are not
in rem; condemnor could not acquire strip of land owned by persons not properly served).
Do not omit lessees as parties. A lessee should be named even if the lease has not been
recorded. 735 ILCS 30/10-5-10(a) requires that the complaint for condemnation name “all
persons interested in the property as owners or otherwise, as appearing of record, if known, or if
not known stating that fact.” The complaint must request that the court “cause the compensation
to be paid to the owner.” Id. In Chef’s No. 4, Inc. v. City of Chicago, 117 Ill.App.3d 410, 453
N.E.2d 892, 73 Ill.Dec. 67 (1st Dist. 1983), the court reiterated that lessees are “owners” for the
purpose of receiving compensation if their rights are condemned and that they are necessary
parties in any condemnation proceeding. The lessee in Chef’s No. 4 was neither named as a party
in the complaint nor served with process in the condemnation proceeding. The condemnation case
proceeded to judgment without the presence of the lessee, and the full award was paid to the
county treasurer. The lessee subsequently filed an inverse condemnation action seeking payment
for the remainder of its lease, alleging that its leasehold had been taken without compensation.
The court held that the lessee was entitled to maintain an inverse condemnation action against the
condemnor to compensate for the lessee’s rights and property that had been acquired in the
condemnation action. The lesson of Chef’s No. 4 is that there is danger of paying double
compensation unless all persons interested are made parties to the condemnation action.
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INITIAL PROCEDURES AND PLEADINGS OF THE STATE AND OTHER CONDEMNING BODIES
§2.7
Not surprisingly, only persons having an interest in the property being taken may challenge
the condemnor’s authority. In Village of Bensenville v. City of Chicago, 389 Ill.App.3d 446, 906
N.E.2d 556, 329 Ill.Dec. 358 (2d Dist. 2009), the village and private owners filed a complaint
seeking a declaratory judgment and injunction to enjoin the city’s acquisition of neighboring
properties for an O’Hare Airport expansion, asserting lack of necessity and fraud. The plaintiffs
also sought to have the city return properties that it had already condemned from other parties,
claiming that the properties were acquired by fraud. The plaintiffs claimed that they would be
damaged by the city’s demolition of structures on the land acquired and to be acquired. Citing
§10-5-75 of the Eminent Domain Act, which allows intervention in eminent domain proceedings
by persons holding an interest in the condemned property, the appellate court held that the owners
could not allege that the taking of other property directly infringed a right of their own.
The Illinois Supreme Court confronted this issue in City of Chicago v. Prologis, 236 Ill.2d 69,
923 N.E.2d 285, 337 Ill.Dec. 726 (2010). The appellants were holders of bonds secured by the
incremental real estate tax revenue generated by the property being acquired by the city. They
claimed that they were damaged by the taking because the city’s acquisition caused their bonds to
become worthless. The bondholders alleged that the taking destroyed the only source of
repayment, because under city ownership the property would be tax exempt and generate no tax
revenue. The court held that the bondholders had no property interest in the land itself (as distinct
from tax revenues) and thus suffered only a frustration of expectations. Such consequential
damages are not compensable.
Persons interested in the property must assert their interest in the condemnation case, not in a
separate proceeding. Owners may not use a separate proceeding to challenge the condemnor’s
authority to exercise eminent domain. In Village of Bensenville, supra, the village and private
owners filed a complaint seeking a declaratory judgment and injunction to enjoin the city’s
acquisition of their property for O’Hare Airport expansion, asserting lack of necessity and fraud.
The appellate court upheld the dismissal of the owners’ claims because the claims could be
asserted in the pending eminent domain cases in which the city was seeking to acquire their
property.
E. [2.7] Compliance with Federal and State Prerequisites — Environmental, Landmark
Protection, Relocation, and Farmland Preservation Statutes
Condemnors acquiring land for a variety of projects must frequently satisfy state or federal
environmental, landmark protection, and procedural statutory requirements. Failure to comply
with a statute could lead to administrative or judicial proceedings to enjoin the project. Loss of
state or federal funding could also result from violating any of these provisions. For example,
significant projects using federal funds or subject to a federal permit must be preceded by a
proper environmental assessment or an environmental impact statement pursuant to the National
Environmental Policy Act of 1969, 42 U.S.C. §4321, et seq. Similarly, under §306108 of the
National Historic Preservation Act, 54 U.S.C. §306101, et seq, formerly 16 U.S.C. §470f, before
property that has been placed on or is eligible for nomination to the National Register of Historic
Places may be damaged or destroyed, a hearing must be held and certain other procedures
followed. 54 U.S.C. §306108. Illinois has a similar procedure for projects in which state funding
or permits could impact historic landmarks that are on the National Register of Historic Places or
have been determined to be eligible for placement on the National Register. See §4 of the Illinois
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State Agency Historic Resources Preservation Act, 20 ILCS 3420/1, et seq. Further, with respect
to any interest in real property to be acquired in part with federal funds, the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970 must be obeyed.
Although there may be severe adverse impacts from the condemnor’s failure to comply with
these environmental, landmark protection, procedural, and relocation statutes, a prohibition
against acquisition is not one of these consequences. Violations of environmental laws may have
an impact on the project but do not prohibit a condemnor from acquiring property for the project
pursuant to the law of eminent domain. See, e.g., Illinois State Toll Highway Authority v. Karn, 9
Ill.App.3d 784, 293 N.E.2d 162 (2d Dist. 1973), in which the court held that a permit under the
Environmental Protection Act, 415 ILCS 5/1, et seq., was not required before condemning land
for a highway since it is the operation of vehicles, not the highway or its construction, that causes
air pollution.
With respect to the URA, Illinois courts have held compliance with the Act not to be a
condition precedent to condemnation. See, e.g., Department of Transportation v. Zabel, 47
Ill.App.3d 1049, 362 N.E.2d 687, 6 Ill.Dec. 52 (3d Dist. 1977). See also City of Chicago v. R.
Zwick Co., 27 Ill.2d 128, 188 N.E.2d 489 (1963); Rhodes v. City of Chicago ex rel. Schools, 516
F.2d 1373 (7th Cir. 1975). The URA itself provides that it will not affect the validity of any
property acquisition. 42 U.S.C. §4602(a). Because the URA and other similar statutes do not
affect the exercise of condemnation power, compliance with such statutes should not be alleged
in any petition to condemn.
735 ILCS 30/10-5-62 imposes the obligation on all condemnors to pay relocation
reimbursement for persons displaced under the power of eminent domain. Unlike the URA, the
Eminent Domain Act is silent as to the consequences of failing properly to do so. Since relocation
reimbursement is usually paid after the property is acquired, relocation reimbursement should not
affect the validity of the acquisition.
Similarly, the Farmland Preservation Act, 505 ILCS 75/1, et seq., expresses the General
Assembly’s desire to protect the state’s natural resources and reduce the loss of agricultural land.
While the Act does not prohibit the acquisition and conversion to other uses of farmland, it
requires many of the state’s agencies to confer with the Department of Agriculture and consider
the Department’s regulations aimed at reducing the loss of farmland.
Section 5 of the Farmland Preservation Act is similar to §106 of the National Historic
Preservation Act (formerly 16 U.S.C. §470f, recodified as 54 U.S.C. §306108). Prior to participating
in any project leading to conversion of farmland to nonagricultural purposes, the head of the
agency is to notify the Department of Agriculture and a report is to be prepared. If the procedural
prerequisites are complied with, the agency may proceed with the project. 505 ILCS 75/5. But
note that the court in Department of Transportation v. Sunnyside Partnership, L.P., 337
Ill.App.3d 322, 785 N.E.2d 1018, 1026, 271 Ill.Dec. 824 (5th Dist. 2003), held, in affirming the
denial of a traverse, that “involvement by the courts is not contemplated by the Farmland
Preservation Act.”
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An additional protection for historic property, whether or not officially designated a
landmark, appears in the Tax Increment Allocation Redevelopment Act, 65 ILCS 5/11-74.4-1, et
seq. Pursuant to 65 ILCS 5/11-74.4-3(q)(14), tax increment financing (TIF) funds may not be
used to demolish or modify property included on or eligible for placement on the National
Register of Historic Places. An exception exists if the corporate authorities make a finding that
there is no prudent and feasible alternative to removal of the historic structure.
F. [2.8] Surveys
In most cases, the condemnor should obtain a survey of the property to be acquired. In many
cases (e.g., highway projects), a survey is made early in the planning process to determine the
project boundaries. In the case of highways, the alignment, exits, utility connections, drainage
patterns, and easements are likely to be known in advance of condemnation because these matters
appear on the surveys. In other cases, the attorney for the condemnor should see that a survey is
prepared prior to proceeding with the case.
An acquisition survey will reveal many important conditions. In addition to the boundaries of
the individual properties to be acquired, the survey may show land area, the footprint of any
building on the property, square footage of such a building, and easements.
Surveys are clearly important for architects and planners so that they may know the size and
location of the property to be acquired and how to site any new buildings. In addition, however,
square footage and easements assist the attorney and appraiser in forming an opinion of value.
When values are based on square footage of land, building-to-land ratio, and square footage of
building, the exact size of the land and the magnitude of improvements are important. Similarly,
if the property is burdened with any easement, its value will be affected accordingly.
The surveyors should be instructed to provide the square footage of each parcel to be
acquired, the area of a building’s footprint, and the total building floor area. Surveyors may also
prepare an acquisition parcel map illustrating all of the parcels to be acquired in an area. When
this is mounted on a display board, it becomes a useful tool for the attorney and the public body
to keep track of the acquisition status of the project. Individual parcels may be colored in on the
plat as they are acquired.
G. [2.9] Environmental Assessment
For the purposes of planning and valuation, it is useful to have an environmental assessment
prior to proceeding with an acquisition. An environmental assessment (also known as a “Phase I
environmental assessment”) is a report prepared by an expert, made after a visual inspection of
the premises and a study of historical sources. Generally, a Phase I environmental assessment
does not involve laboratory testing except, frequently, for asbestos-containing materials. 40
C.F.R. pt. 312 contains Innocent Landowners, Standards for Conducting All Appropriate
Inquiries. A Phase I environmental assessment will report the likelihood of environmental
contamination on the subject property. The current use of the subject property, its historical uses,
the location of nearby sources of contamination, and the presence of underground storage tanks
will be found in the Phase I report.
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This information will help planning officials in determining the uses that may be made of the
acquired property or the work that must be done to remediate contamination. The same
information will be helpful to attorneys and appraisers in determining market value. Obviously,
known contamination will have an adverse impact on value. Appraisers commonly base their
opinion of value on the assumption that the property is not contaminated; with a Phase I
environmental assessment, the appraiser will be able to provide a more realistic determination of
value.
Although environmental issues are treated in more depth in Chapter 12 of this handbook, it is
important to understand that the environmental assessment may have a role in the valuation
proceedings and also to understand the limits of this role. Section 10-5-50 of the Eminent Domain
Act appears to make such a report, as well as the cost of remediation, admissible on the question
of value:
Evidence is admissible as to . . . any unsafe, unsanitary, substandard, or other illegal
condition, use, or occupancy of the property [and] the reasonable cost of causing the
property to be placed in a legal condition, use, or occupancy. . . . Such evidence is
admissible notwithstanding the absence of any official action taken to require the
correction or abatement of the illegal condition, use, or occupancy. 735 ILCS
30/10-5-50.
Despite similar language in former 735 ILCS 5/7-119 (predecessor to §10-5-50 of the EDA),
the appellate court in Department of Transportation ex rel. People v. Parr, 259 Ill.App.3d 602,
633 N.E.2d 19, 198 Ill.Dec. 557 (3d Dist. 1994), held that remediation costs were not admissible
in that proceeding. The court held that the costs are admissible only if the trial court finds the
presence of an underlying illegal condition to justify the admission of these costs. The court
found that the statute presupposes the existence of an illegal condition, and unless the condition is
determined to be illegal, it is improper to introduce these costs in the valuation proceeding. Cf.
Department of Transportation v. LaSalle National Bank, 251 Ill.App.3d 901, 623 N.E.2d 390,
191 Ill.Dec. 145 (2d Dist. 1993) (allowing testimony regarding wetlands on subject property).
Although the admissibility of these reports will doubtless be subject to further litigation, the
importance of having a Phase I report at the outset cannot be denied.
H. [2.10] Owner’s Due-Process Rights Prior to Site Selection or Government’s Enactment
of Condemnation Authority
An owner has no due-process rights in the government’s planning, site selection, or
authorization of the exercise of condemnation. This is a legislative process in which individual
property owners do not have the right to participate. Adams County Property Owners & Tenant
Farmers v. Illinois Commerce Commission, 2015 IL App (4th) 130907, ¶51, 36 N.E.3d 1019, 394
Ill.Dec. 728 (underlying proceedings before Commission neither conferred property rights on
landowners nor deprived them of their protected property interests).
I. [2.11] Identifying the Occupants
Section 2.6 above indicates that parties who have an interest in the property but are not served
may later seek compensation, even after the property has been acquired. The right to possession is
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yet another problem created by unserved parties. The condemnor may not extinguish the rights to
possession of persons occupying the subject property if these persons have not been served. Even
if occupants may not be entitled to monetary compensation (because, for example, they have no
lease or there is no bonus value to their lease), they have a right to possession. Such a right may
not be extinguished without the persons being before the court.
Although public records disclose the persons in title and others with recorded interests in the
property, it is frequently very difficult to determine the rights of persons with unrecorded
interests, which can include tenants with leases, tenants without leases, squatters, advertising
signs, and cell towers and other antennas. The obligation to name all parties in interest extends to
those who do not have recorded interests.
The landlord cannot be relied on to identify all tenants. Prior to filing a complaint, owners
may be reluctant to reveal this kind of information. Other landlords may not disclose tenants
because they do not want the tenants to learn of the imminent acquisition, fearing that the tenants
may break their leases or leave the property earlier than necessary. A landlord may fraudulently
conceal an imminent condemnation from tenants or prospective tenants. City of Chicago v.
American National Bank & Trust Co., 233 Ill.App.3d 1031, 599 N.E.2d 1126, 175 Ill.Dec. 112
(1st Dist. 1992).
PRACTICE POINTER

A visual inspection will be helpful in determining whether there are advertising signs,
antennas, and the like. Doorbells, lobby directories, and signs can reveal the identity of
tenants. At times, the services of a private investigator will be necessary to complete the
roster of the persons with interests in the property.
J. [2.12] Special Parties — Active Duty Military Personnel and Their Dependents
Condemnors should always respect the rights of persons in active military service. Military
personnel away from home on active duty and their dependents who remain behind receive
certain protections pursuant to the Servicemembers Civil Relief Act (SCRA), ch. 888, as
amended by Pub.L. No. 108-189, §1, 117 Stat. 2835 (2003).
There are three provisions of the SCRA that relate to condemnation proceedings:
1. A default judgment may not be entered against military service personnel on active duty.
50 U.S.C. §3931. If a default judgment is entered, it may be vacated. The SCRA requires that
when a default judgment is entered in state or federal court, the attorney must file an affidavit of
military service. A sample copy of Cook County Circuit Court Form CCG 0004, Affidavit as to
Military Service, is available on the website of the Clerk of the Circuit Court of Cook County at
www.cookcountyclerkofcourt.org/?section=FormsPage (case sensitive).
2. At the instance of any person, civil proceedings may be stayed with respect to the person
on active military duty for at least 90 days. 50 U.S.C. §3931.
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3. Even after a condemning body properly obtains title and possession to a building, family
members of a person on active military duty may not be evicted for 90 days. 50 U.S.C. §3951.
This applies to any dwelling renting for $2,400 per month or less during the period of military
service for the wife, children, or other dependents of a person in military service, with certain
discretion vested in the court. The maximum rent ($2,400 in 2003) to which the 90-day eviction
prohibition applies is subject to a housing price inflation adjustment, which is $3,451.20 in 2016.
50 U.S.C. §3951(a)(1)(A)(ii).
K. [2.13] Relocation Reimbursement
Section 10-5-62 of the Eminent Domain Act provides that the condemnor will pay to persons
displaced by the acquisition of their real property reimbursement for their reasonable relocation
costs:
Except when federal funds are available for the payment of direct financial
assistance to persons displaced by the acquisition of their real property, in all
condemnation proceedings for the taking or damaging of real property under the
exercise of the power of eminent domain, the condemning authority shall pay to
displaced persons reimbursement for their reasonable relocation costs, determined
in the same manner as under the federal Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970, as amended from time to time, and as
implemented by regulations promulgated under that Act. This Section does not
apply to the acquisition or damaging of property under the O’Hare Modernization
Act. 735 ILCS 30/10-5-62.
The amount to be paid to displaced persons is to be determined in the same manner as pursuant to
the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.
Relocation reimbursement has a much broader meaning than the term “relocation” would suggest.
A displaced person is entitled to payment for the cost to move, i.e., moving personal property
from one place to the next. In addition, packing costs and loading and unloading are
reimbursable. In certain cases, when a replacement structure is not available, storage for up to one
year may be reimbursed. Other costs can include reprinting stationery and signs for a business to
include the new address and disconnection and reconnection of equipment. Preparation of the
new structure (e.g., tenant improvements) is not reimbursable.
An unexpected feature of the federal regulations implementing the URA, now to be followed
in all Illinois condemnations, is financial assistance that the condemnor must provide to certain
residents when they are unable to find new safe, sanitary, and decent housing at the same cost as
at the location from which they were displaced. If the new housing cannot be found at the same
price, the condemnor must provide a subsidy. If this housing cannot be found at all in the
community, the condemnor must provide it. This applies to renters as well as owners.
Who is entitled to receive relocation reimbursement? The URA applies to all persons who are
displaced by a federally supported project regardless of whether they are owners and regardless of
whether their property is taken. But the terms of the EDA are not so broad. It applies to persons
displaced by the “acquisition of their real property.” Id. Tenants are displaced when the
condemnor acquires their landlord’s real property. Literal interpretation of the EDA would
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exclude relocation payments to tenants since their real property is not being acquired. However,
tenants own a stick in the bundle of real property rights. In light of this and benefits under the
URA, it would seem unlikely that tenants would not receive relocation reimbursement.
Like all provisions of the EDA, §10-5-62 “applies only to complaints to condemn that are
filed on or after its effective date” (i.e., January 1, 2007). 735 ILCS 30/90-5-5. Read literally, this
means that when a condemnor acquires property by agreement under threat of condemnation, but
when no complaint is filed, displaced persons are not entitled to relocation reimbursement. The
exclusion of voluntary transactions also appears in the language of §10-5-62, which provides that
reimbursement is required “in all condemnation proceedings for the taking or damaging of real
property under the exercise of the power of eminent domain.” [Emphasis added.] 735 ILCS
30/10-5-62.
It will be difficult for condemnors to avoid reimbursement in voluntary transactions, even if
§10-5-62 does not require these payments. If the condemnor refuses to pay reimbursement as part
of a negotiated purchase, the owner need only refuse the deal and make the condemnor obtain the
property in court, thereby forcing the payment of relocation costs.
The URA not only requires that condemnors reimburse relocation costs but also establishes
many procedural and substantive standards for condemnors to follow. For example, there are
elaborate regulations concerning the notices to landowners, the appraisal process, and the
minimum time that a person must be allowed to remain on the acquired property. Section 10-5-62
applies the URA only to “relocation costs,” which are to be “determined in the same manner as
under the [URA].” Id. It remains to be seen whether the EDA language will be interpreted as
adopting the federal rules to any aspect of condemnation other than relocation costs.
L. [2.14] Relocation Coordinator
A relocation coordinator may ease the acquisition process. A staff member or private
relocation coordinator will be very helpful in facilitating the acquisition. The coordinator is a
person or firm familiar with relocation law, the labyrinthine guidelines, and local moving
companies. A coordinator helps displaced owners and tenants to understand their eligibility and
the compensation rules and helps them apply to the public body for relocation compensation.
The coordinator can do the following:
Identify tenants and other parties. At the outset of a project, the relocation coordinator can
visit all of the tenants and businesses in the acquisition project area. In the process of informing
them of their relocation rights, the coordinator can obtain the identities of the interested parties.
Inform tenants of relocation rights. The relocation coordinator can advise tenants about the
kind of relocation assistance available, the procedures for obtaining this assistance, and the
paperwork involved in documenting the move and applying for compensation.
Determine the relocation budget. By identifying all persons eligible for relocation
compensation and estimating eligible costs, the relocation coordinator can advise the condemnor
as to the amount to be budgeted for relocation.
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Provide easy communication with interested parties. Relocation coordinators have
frequent contacts with tenants and owners in the course of advising them about and coordinating
their application for relocation reimbursement. The tenants will have a contact who can answer
their questions, and therefore the acquisition attorney can avoid frequent questions from
unrepresented parties. The relocation coordinator, as the source of relocation reimbursement
funds, appears as a friendly, generous representative of the condemning authority.
In federally funded projects, the costs of a relocation coordinator are reimbursable project
expenses.
M. [2.15] Sixty-Day Notice Letter for State Agencies
Notice of the intention to condemn must be given at least 60 days before the state or its
agencies file a complaint for condemnation. 735 ILCS 30/10-5-15(d). The state and its agencies
desiring to initiate condemnation must send a letter via certified mail, return receipt requested, to
the owner and furnish the following information:
(1) The amount of compensation [to be offered] for the taking of the property
proposed by the agency and the basis for computing it.
(2) A statement that the agency continues to seek a negotiated agreement with the
property owner.
(3) A statement that, in the absence of a negotiated agreement, it is the intention of
the agency to initiate a court proceeding under this Act. Id.
Section 10-5-15(d) of the Eminent Domain Act requires that the state agency maintain a
record of the letters sent for at least one year.
The contents of the notice letter appear to track the offer letter usually sent in condemnation
cases but with some additional requirements. The “basis for computing” the offer must also be
stated. 735 ILCS 30/10-5-15(d)(1). An appraisal report would seem to satisfy this requirement.
A sample form of a 60-day notice letter is found in §2.74 below.
Section 10-5-15(c) contains an additional requirement. At the time of the first contact with
the property owner, whether in person or by letter, the state agency must advise the property
owner in writing of the following:
(1) A description of the property that the agency seeks to acquire.
(2) The name, address, and telephone number of the State official designated . . .
to answer the property owner’s question.
(3) The identity of the State agency attempting to acquire the property.
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(4) The general purpose of the proposed acquisition.
(5) The type of facility to be constructed on the property, if any. 735 ILCS 30/105-15(c).
A sample form of a first-contact letter that could be sent to conform to this requirement is
found in §2.73 below.
Since 1991, when the 60-day notice statute was first enacted, there have been few reported
appellate court decisions interpreting it, and several issues remain unresolved:
1. Is the notice requirement mandatory or directory? A statutory direction may be
considered directory if it does not provide a penalty for failure to comply. Section 10-5-15(d)
contains no such penalty despite its injunction to serve the notice 60 days before initiating
condemnation. Thus, if a property owner seeks to base a traverse (motion to dismiss) on the
state’s failure to comply with the statute precisely (such as failing to send in the manner required
by the EDA or giving less than 60 days’ notice), the state may defend on the ground that the
notice requirement is directory only and that failure to comply is not fatal to the take.
2. What is a “state agency” for the purpose of the statute? Agencies in the executive branch
of Illinois government, such as the Illinois Department of Transportation or the Illinois
Department of Natural Resources, are clearly state agencies and likely objects of the §10-5-15(d)
notice requirement. These departments have blanket expropriation power, need no additional
legislative authority to file condemnation, and are subordinates of the chief executive of the state.
However, the statute’s application to other agencies is not so clear. The Illinois Toll Highway
Authority, interstate compact agencies, and state universities are not in the executive branch of
government. They are not subordinates of the Governor but are governed by statutory bodies.
These entities may not be “agencies” for the purpose of the EDA.
3. How long must the state agency’s offer of purchase remain open? The sample form of a
letter of a final good-faith offer in §2.80 below provides that the condemnor’s offer will terminate
after 10 days. The purpose of terminating the offer is to establish that if the owner does not accept
the offer, “the compensation to be paid . . . cannot be agreed upon by the parties.” 735 ILCS
30/10-5-10(a). However, the terms of §10-5-15(d) provide that the 60-day notice contain the
amount of proposed compensation and a statement that “the agency continues to seek a negotiated
agreement” with the owner. Nothing in this language expressly permits the offer to be terminated
prior to filing condemnation. The practitioner is advised to be aware of the tension between this
language and the common practice of terminating offers to purchase. The court in Forest
Preserve District of DuPage County v. First National Bank of Franklin Park, 2011 IL 110759,
961 N.E.2d 775, 356 Ill.Dec. 386, found a 10-day offer period to be sufficient.
4. May the first-contact letter and the 60-day letter be combined? Sections 10-5-15(c) and
10-5-15(d) describe, respectively, the requirements of the letter to be sent on the state’s first
contact with the property owner and the letter of offer. In some exigent circumstances, it may be
necessary to send concurrent first-contact and offer letters or a combined first-contact and offer
letter.
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5. What is a first contact, and when does it occur? Is the first-contact letter to be served
when the state first begins consideration of the subject site but before the decision is made that
the property is necessary or desirable for the project? For example, surveys, environmental
assessments, and appraisals may be needed before the state determines whether to proceed with a
project. Each of these inspections necessitates contact with the property owner. Must the official
first-contact letter be served at the investigation stage prior to even deciding whether to proceed
with a project?
The Illinois Supreme Court has construed the 60-day notice strictly. In Department of
Transportation ex rel. People v. 151 Interstate Road Corp., 209 Ill.2d 471, 810 N.E.2d 1, 284
Ill.Dec. 348 (2004), the court held that once the 60-day notice is sent, the state agency cannot
reduce the amount of its offer without reinstating the 60-day notice requirement. In 151 Interstate
Road, the Illinois Department of Transportation had sent a 60-day notice under former 735 ILCS
5/7-102.1(d) (predecessor to §10-5-15(d) of the EDA) but subsequently reduced its offer for the
property by $7,000. According to the court’s calculations, the reduction was not based on a
reduced taking but was a decrease in the per-acre value being offered by IDOT. The court held
that this constituted a new offer, requiring a new 60-day period. The court stated:
Meaningful negotiation will only occur if property owners believe they will be no
worse off at the end of the process than they were at the beginning. If the state is
permitted to do what IDOT did here, namely, to make an offer at a certain price,
but then reduce the rate it is willing to pay and proceed to court before an
additional 60-day period has expired, property owners will have no such assurance.
The prospect of diminishing payment will intimidate some property owners, making
them feel pressured to accept the state’s initial proposal and forgo further
discussions for fear that they might end up receiving less and less the closer the state
comes to the time when it can initiate court proceedings against them. . . .
[M]eaningful bargaining will be substantially impaired. That outcome is directly
contrary to the result the General Assembly hoped to achieve when it enacted
section 7-102.1(d). 810 N.E.2d at 9 – 10.
Section 10-5-15(d) of the EDA requires that the 60-day notice set forth the amount of
compensation for the taking and “the basis for computing it.” 735 ILCS 30/10-5-15. There is no
requirement that the state submit its appraisal with its offer. Forest Preserve District of DuPage
County v. First National Bank of Franklin Park, 2011 IL 110759, 961 N.E.2d 775, 356 Ill.Dec.
386. See §§2.35 and 2.45 below regarding good-faith negotiation.
N. [2.16] Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970
The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970
applies to every acquisition funded in whole or in part with federal grants. As noted in §2.7
above, failure to observe the requirements of the URA does not result in the inability to acquire
property, but it could result in a failure of the project because of the deprivation of federal
funding. Thus, when the URA applies, it is imperative to follow it and the regulations
promulgated thereunder by the various federal departments and agencies.
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The URA not only requires that relocation assistance be paid to displaced owners and tenants,
but it also imposes certain other procedures not otherwise required by Illinois law.
The acquisition and relocation regulations for acquisitions funded by federal agencies appear
at 49 C.F.R. pt. 24. These regulations apply to all property acquired in whole or in part with
federal funds except those negotiated without any threat of condemnation and without designation
of a specific site. The following summarizes some, but by no means all, of the applicable
regulatory requirements:
1. As soon as feasible, the condemning body will notify the owner of its interest in
acquiring the property and inform the owner of the basic protections under the URA, including
the obligation to secure an appraisal. The obligation to inform may be satisfied by providing the
federal agency’s information booklet.
2. Before the initiation of negotiations, there will be an appraisal.
3. Acquiring bodies are encouraged to obtain at least two appraisals for high-value
properties or properties requiring a complicated valuation process.
4. The owner will be given an opportunity to accompany the appraiser during the
appraiser’s inspection.
5. Appraisals must conform to federal agency standards, and the appraiser must be certified
under state law pursuant to Title IX of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, Pub.L. No. 101-73, 103 Stat. 183.
6. Appraisals will be subject to review by a qualified reviewing appraiser.
7. Before initiation of negotiations, the condemning body will establish an amount that it
believes to be just compensation for the taking. “The amount shall not be less than the approved
appraisal of the fair market value of the property” or the reviewing appraiser’s recommended fair
market value. 49 C.F.R. §§24.102(d), 24.104. Promptly thereafter, the condemning body “shall
make a written offer to the owner to acquire the property for the full amount believed to be just
compensation.” 49 C.F.R. §24.102(d).
8. Along with the initial written purchase offer, the owner will be given a written statement
of the basis for the offer, which will include the following:
a. a statement of the amount offered;
b. a description and location of the property to be acquired and the interest to be
acquired; and
c. an identification of the buildings and other improvements to be included.
9. The condemning body is prohibited from advancing the time of condemnation, delaying
negotiations of condemnation, or taking any other course of action to coerce an agreement.
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10. The condemning body must have standards for the appraisal and the qualifications of
appraisers.
11. The condemning body is responsible for paying recording fees, transfer taxes, and similar
expenses incidental to conveying the real property. The condemning body is also responsible for
the payment of penalty costs for prepayment of a mortgage and the prorated portion of real
property taxes applicable to the period after acquisition of title.
Under the URA, the condemnor’s offer must remain open a minimum of 30 days. See 49
C.F.R. pt. 24, app. A, Section 24.102(f) Basic Negotiation Procedures.
O. Conditions Precedent to Filing
1. [2.17] Authority and Delegation of Authority To Implement Condemnation
The state has the inherent power to condemn property for public use. U.S.CONST. amend. V;
ILL.CONST. art. I, §15; Forest Preserve District of DuPage County v. West Suburban Bank, 161
Ill.2d 448, 641 N.E.2d 493, 204 Ill.Dec. 269 (1994). Statutes or ordinances that authorize the
acquisition of property for a public project may also provide the manner for implementing the
acquisition and identify the public officials responsible for carrying it out. This legislation must
be specific enough to be a proper delegation of power and, if so, must have been approved. Forest
Preserve District of DuPage County v. Brown Family Trust, 323 Ill.App.3d 686, 753 N.E.2d
1110, 257 Ill.Dec. 484 (2d Dist. 2001) (approving delegation to staff and attorneys of authority to
negotiate voluntary sale and to institute condemnation if negotiation failed). It should be
remembered that the decision to acquire must be exercised by the appropriate corporate
authorities or the General Assembly. For state projects, the General Assembly has delegated the
decision to acquire property to the executive branch, which exercises this authority without
additional specific legislative authority. See, e.g., §4-501 of the Illinois Highway Code, which
allows the Illinois Department of Transportation the authority to acquire such property as is
“necessary” for highway projects, without further specificity. 605 ILCS 5/4-501.
For the text of delegation ordinances approved by the court, see Brown Family Trust, supra,
753 N.E.2d at 1112 – 1113.
When the city council authorized the acquisition of a parcel of land, the city could not amend
its complaint to acquire an amount of property less than that authorized. City of Chicago v.
Midland Smelting Co., 385 Ill.App.3d 945, 896 N.E.2d 364, 324 Ill.Dec. 578 (1st Dist. 2008) (in
this case, city council enacted subsequent ordinance authorizing reduced take).
2. [2.18] Successive Condemnations
A condemnation dismissed because it sought excess land does not operate as res judicata to
bar a subsequent complaint to take a lesser amount of the same property. City of Chicago v.
Midland Smelting Co., 385 Ill.App.3d 945, 896 N.E.2d 364, 324 Ill.Dec. 578 (1st Dist. 2008).
Similarly the court in Rock River Water Reclamation District v. Sanctuary Condominiums of
Rock Cut, 2014 IL App (2d) 130813, ¶48, 30 N.E.3d 1081, 391 Ill.Dec. 443, held that a second
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condemnation action, based on a new authorizing ordinance, is not barred by the earlier dismissal
of the condemnation based on defects in the first ordinance.
3. [2.19] Prerequisites for New Quick-Take Authority
The Illinois House of Representatives established prerequisites for enacting new quick-take
authority. The rules apply to the state as well as to units of local government. See Illinois House
Rule 41, 99th Gen.Assem. (2015).
Rule 41 provides that before the Illinois House of Representatives will consider legislation
authorizing additional quick-take powers under 735 ILCS 30/20-5-5, the state agency or unit of
government requesting this authority must notify affected owners by certified mail, publish
notice, and hold a public hearing. Thereafter, the corporate authorities, if a unit of local
government, must adopt a resolution requesting the General Assembly to add quick-take powers.
Then, not less than 30 days after giving notice, the head of the state agency or local government
must file documentation certifying that the procedures have taken place and identifying the
property and the owners that will be affected. Among the documents required to be submitted are
appraisals of the affected property.
Rule 41 expires at the end of the 99th General Assembly, on December 31, 2016, but these
provisions, or others like them, have been in effect since 2003 and are expected to be reenacted
by subsequent General Assemblies.
This application procedure can be expensive and time-consuming. However, the impact of
Rule 41 can be reduced by good planning. As a practical matter, the General Assembly passes
most legislation only two or three times a year with a January session, a late June session, and a
November veto session. Governments or agencies requesting new quick-take legislation should
submit their applications well in advance of these passages dates.
4. [2.20] Quick-Take — What Is a Formally Adopted Schedule or Plan of Operation?
Section 20-5-5(b) of the Eminent Domain Act requires that a quick-take motion state the
“formally adopted schedule or plan of operation for the execution of the plaintiff’s project.” 735
ILCS 30/20-5-5(b). In City of Chicago v. St. John’s United Church of Christ, 404 Ill.App.3d 505,
935 N.E.2d 1158, 1172, 343 Ill.Dec. 930 (2d Dist. 2010), the city had no specific schedule for the
acquisition of the owner’s parcel. The court held that the “formally adopted schedule”
requirement was satisfied by the city’s statement that the parcel was needed for a new runway, for
which construction would begin in July 2010 and be completed in 2012. It is unclear if this
schedule, although set out in the city’s motion, was formally adopted and, if so, by whom. But the
city was held to have satisfied the requirement because it submitted a “specific timeline for the
specific project” and the O’Hare modernization project is a massive project involving
construction of many elements over many acres over the course of many years. 935 N.E.2d at
1173. Plans for a project of that size change over many years, and the rule that the condemnor is
permitted to acquire for future needs applies.
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5. [2.21] Availability of Funds Not Condition Precedent to Filing Petition
It is not a condition precedent to the filing of a condemnation petition that the condemnor
have the money immediately available to pay for the property sought to be acquired. This
principle was restated in County of St. Clair v. Wilson, 284 Ill.App.3d 79, 672 N.E.2d 27, 219
Ill.Dec. 712 (5th Dist. 1996).
In Village of Depue v. Banschbach, 273 Ill. 574, 113 N.E. 156, 159 – 160 (1916), the court
said:
It is further urged that the proceedings were defective for the reason that no
provision had been made for payment for the lands taken and damaged. The fact
that no tax had been levied or provision made to raise funds to pay for the
improvement is no concern to the appellant. City of Chicago v. Sanitary District, 272
Ill. 37, 111 N.E. 491. He is not required to give credit to the municipality or part
with his land until he is paid in full the compensation awarded him by the verdict of
the jury and judgment of the court. City of Chicago v. Sanitary District, supra. . . . It
is immaterial to the rights of appellant that such funds were not in its treasury at the
time this proceeding was instituted, so long as they are there at the time his lands
are taken.
See also Forest Preserve District of Cook County v. Chicago Title & Trust Co., 351 Ill. 48, 183
N.E. 819 (1932). In fact, if the ultimate award exceeds what the condemnor is willing to pay, the
condemnor may dismiss or abandon the petition provided it has not taken possession of the
property pursuant to a quick-take order (in which case abandonment or dismissal is not
permitted). See 735 ILCS 30/10-5-70; Department of Public Works & Buildings ex rel. Illinois v.
Greenlee, 63 Ill.App.2d 425, 211 N.E.2d 771 (2d Dist. 1965). Of course, §10-5-70 of the Eminent
Domain Act requires the payment of costs, expenses, and attorneys’ fees upon abandonment or
dismissal.
In City of Chicago v. St. John’s United Church of Christ, 404 Ill.App.3d 505, 935 N.E.2d
1158, 343 Ill.Dec. 930 (2d Dist. 2010), the appellate court upheld the trial court’s refusal to grant
discovery on the issue of whether the city had the ability to pay for the project for which it sought
to acquire the owner’s land.
6. [2.22] Final Plans of Project Not Condition Precedent to Filing Petition
A corollary to the principle described in §2.21 above (i.e., that the availability of funds is not
a condition precedent to filing a condemnation petition) is the principle that asserts that plans for
the project for which land is being acquired need not be final before condemnation may be
commenced. City of Chicago ex rel. Schools v. Albert J. Schorsch Realty Co., 127 Ill.App.2d 51,
261 N.E.2d 711 (1st Dist. 1970). In Department of Transportation v. Keller, 127 Ill.App.3d 976,
469 N.E.2d 262, 265, 82 Ill.Dec. 728 (5th Dist. 1984), the court noted:
Respondents also contend that petitioner was without authority to exercise the
powers of eminent domain since the construction plans offered as evidence at the
hearing were not “final plans.” The record indicates, however, that the State’s plans
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were final to the extent that circumstances would reasonably allow. The fact that the
Department of Transportation could not offer extensive plans for every parcel of
land sought in the acquisition, or for every phase of a project which would extend
over a period of several years, did not deprive the department of authority to
condemn the various tracts. Neither was the department required, as respondents
suggest, to obtain, prior to acquiring title, every permit which might be required in
the course of construction.
The principle that condemnation is authorized for a public purpose, even if specific plans
have not been formulated in detail, is also applicable to quick-take. The First District Appellate
Court rejected the argument that such a principle was applicable only in a non-quick-take
condemnation proceeding. The court held that even if “extensive plans” might not be available or
even if a project might extend over a period of years, this situation did not deprive the
condemning body of authority to condemn, even in a quick-take action. City of Chicago v. First
Bank of Oak Park, 178 Ill.App.3d 321, 533 N.E.2d 424, 428, 127 Ill.Dec. 552 (1st Dist. 1988).
The condemnor need not identify the funding sources of the project for which the property is
being acquired. In South Park Commissioners v. Livingston, 344 Ill. 368, 176 N.E. 546, 547
(1931), the owner alleged that the condemning authority “was without the necessary funds and
had made no appropriation or levy to develop the property for park purposes or for any purpose
within its charter powers.” Similarly, the owner challenged the taking on the ground that the
condemning authority “never adopted any plan for the use of the land nor made an appropriation
for it, and that the court was unable to pass upon the sufficiency of the money available for the
construction of the work.” Id. The Illinois Supreme Court held that these were not proper issues
to challenge an eminent domain taking.
It is permissible to acquire property for anticipated needs. In Alsip Park District v. D & M
Partnership, 252 Ill.App.3d 277, 625 N.E.2d 40, 192 Ill.Dec. 80 (1st Dist. 1993), the appellate
court upheld the acquisition of additional land for a park when there was disputed evidence on the
issues of whether the land was needed now, whether there were specific plans, and whether other
land might better fulfill the district’s immediate needs. The appellate court quoted City of
Chicago v. Vaccarro, 408 Ill. 587, 97 N.E.2d 766, 772 (1951), in which the Illinois Supreme
Court approved of acquisitions that “anticipate the future increased demands for the public use to
which the land is to be devoted.” 625 N.E.2d at 46. However, a condemnor can go too far in the
court’s eyes. See County of St. Clair v. Faust, 278 Ill.App.3d 152, 662 N.E.2d 584, 214 Ill.Dec.
1018 (5th Dist. 1996), in which the court held that the county’s acquisition was limited to the
minimum acreage necessary for its purposes and that the amount sought grossly exceeded those
needs.
The courts allow the condemning body wide latitude in establishing the ultimate use for the
property to be condemned. One court has even gone as far as to say that “recent cases suggest that
a legislative finding of necessity by a city council is not required to defeat a traverse.” City of
Oakbrook Terrace v. LaSalle National Bank, 186 Ill.App.3d 343, 542 N.E.2d 478, 482, 134
Ill.Dec. 299 (2d Dist. 1989). While this statement is an observation not the ratio decidendi of the
case, the court reiterated the principle that an eminent domain action may be maintained although
the ultimate use of the condemned property has not yet been determined. A further instance of
this principle is State of Illinois Medical Center Commission v. United Church of the Medical
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Center, 142 Ill.App.3d 498, 491 N.E.2d 1327, 1329, 96 Ill.Dec. 867 (1st Dist. 1986), in which the
court upheld the taking even though the condemning body could prove no more definite use than
for “medical institutional expansion.” The taking was upheld despite the fact that no use or
prospective user had been identified, either in the authorizing resolution or by evidence in the
traverse hearing. One court has even gone as far as to state that the failure to “pass a specific
resolution before filing its complaint in condemnation” is a nonfatal defect if the condemning
authority presents evidence at the traverse hearing showing that the taking is necessary. County of
Wabash v. Partee, 241 Ill.App.3d 59, 608 N.E.2d 674, 680, 181 Ill.Dec. 601 (5th Dist. 1993).
Thus, although it is better for the legislature to make a finding of necessity in the authorizing
legislation, the lack of a finding is not fatal as long as necessity is proven at trial. Rock River
Water Reclamation District v. Sanctuary Condominiums of Rock Cut, 2014 IL App (2d) 130813,
¶64, 30 N.E.3d 1081(“even if we were to interpret the 2010 Ordinance as lacking a statement of
necessity, this would not necessarily be fatal as long as plaintiff made a showing of necessity at
the hearing on the traverse”).
To satisfy the requirement of showing necessity, the condemnor need not offer up plans for
every parcel or every phase of a public project. City of Chicago v. St. John’s United Church of
Christ, 404 Ill.App.3d 505, 935 N.E.2d 1158, 343 Ill.Dec. 930 (2d Dist. 2010). Similarly, an
owner may not challenge the necessity to acquire its property on the ground that there is an
alternate way to accomplish the condemnor’s purpose without acquiring its property. Id.
As a corollary, a condemnor may acquire land not only for its immediate needs but also for
its anticipated future needs. Id.
The owner’s offer to use the property for the same purpose for which the condemnor seeks
the property does not defeat the necessity to take the property for such purpose. City of Chicago
v. Midland Smelting Co., 385 Ill.App.3d 945, 896 N.E.2d 364, 324 Ill.Dec. 578 (1st Dist. 2008).
7. [2.23] Prior Notice Not Condition Precedent to Filing Petition — Other than by
State Agencies
Although owners frequently allege that they had no prior notice that their property might be
taken, prior notice is not required. “[E]very private owner of property holds his title subject to the
lawful exercise of the sovereign power of eminent domain.” Deerfield Park District v. Progress
Development Corp., 22 Ill.2d 132, 174 N.E.2d 850, 853 (1961). Except in the case of state
agencies (see §2.15 above) no specific prior notice is required. Of course, all formalities relating
to notice of public meetings must be observed to ensure that the authorizing legislation was
properly passed.
Notice can be a two-edged sword. Advance notice can give property owners sufficient time to
plan to move. On the other hand, lengthy notice, particularly if there is not a particular date set for
the acquisition, can cause uncertainty for property owners. Lengthy notice can cause a decline in
property values. See, e.g., Chicago Housing Authority v. Lamar, 21 Ill.2d 362, 172 N.E.2d 790
(1961). It is even possible that the public project will not proceed (e.g., because of lack of funds),
leaving the property owner with no recourse. See City of Chicago v. Loitz, 61 Ill.2d 92, 329
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N.E.2d 208 (1975). Notice too far in advance can cause tenants to vacate, leaving the owner with
no rental income while waiting for condemnation to be approved or completed.
8. [2.24] Delay in Instituting or Prosecuting Condemnation Action Not Fatal
Frequently, there is a significant lapse of time between the planning of a project and the
actual acquisition of the property required for it. In the case of highways, the recording of the
highway centerline project usually occurs relatively early in the planning stages. The result is that
the centerline appears as a title objection long before the condemnor seeks to acquire the affected
property, which may make the property unmarketable. Public knowledge of the imminence of
other kinds of projects has a similar effect. When a property is targeted for expropriation, an
owner may be unable to sell it and unwilling to maintain it until acquisition occurs. When there is
lengthy delay, the landowner is often left without any practical remedy since these
precondemnation activities by the condemnor do not constitute a taking that would obligate the
condemnor under the Illinois and U.S. Constitutions to compensate the owners of the affected
property. See City of Chicago v. Loitz, 61 Ill.2d 92, 329 N.E.2d 208 (1975); Kirby Forest
Industries, Inc. v. United States, 467 U.S. 1, 81 L.Ed.2d 1, 104 S.Ct. 2187 (1984); Griffin v. City
of North Chicago, 112 Ill.App.3d 901, 445 N.E.2d 827, 831, 68 Ill.Dec. 183 (2d Dist. 1983) (“no
taking occurs until the execution of a purchase agreement or conclusion of eminent domain
proceedings”).
In Patel v. City of Chicago, 383 F.3d 569 (7th Cir. 2004), the court reaffirmed the principle
that the designation of properties for acquisition has no legal impact on these properties;
challenges to these designations are not ripe. In Patel, the plaintiffs were owners of motels that
the city found to be deteriorated. The motels were singled out for acquisition under the City of
Chicago’s Lincoln Avenue tax increment financing district ordinance. The owners challenged the
condemnation designation on TIF and equal-protection grounds, alleging that motels, as distinct
from other properties in the district, were singled out for acquisition and that the city council’s
designation was a malicious attempt to punish the motel owners without any legitimate
governmental objective.
The Seventh Circuit held that if the owners’ complaint was for a taking, their recourse would
be an action in state court for inverse condemnation. On the other hand, an equal-protection claim
was also premature under Williamson County Regional Planning Commission v. Hamilton Bank
of Johnson City, 473 U.S. 172, 87 L.Ed.2d 126, 105 S.Ct. 3108 (1985). Equal protection could
not be used to avoid the finality requirements of Williamson. The court in Patel found that since
the plaintiffs alleged no protected class violations, the claims were nothing more than land use
claims, which, under Williamson, must await a final local decision. Patel reiterates the principle,
citing Supreme Court and Seventh Circuit precedent, that governmental acquisition activities
short of filing condemnation or a physical invasion of the property are not actionable under the
Fifth Amendment.
In contrast to prefiling immunity, the courts may dismiss the action in egregious cases of
delay following the filing of a complaint for condemnation. See, e.g., Department of Public
Works & Buildings v. Vogt, 51 Ill.App.3d 770, 366 N.E.2d 310, 9 Ill.Dec. 53 (5th Dist. 1977);
Department of Conservation v. Cox, 95 Ill.App.3d 1126, 420 N.E.2d 1061, 51 Ill.Dec. 503 (5th
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Dist. 1981). Because of irreparable harm that may be caused to the landowner before a complaint
is filed and the risk of dismissal afterward, filing and prosecuting a condemnation action should
proceed expeditiously.
In City of Quincy, Illinois v. Diamond Construction Co., 327 Ill.App.3d 338, 762 N.E.2d 710,
261 Ill.Dec. 141 (4th Dist. 2002), the court did not approve the city’s sandbagging the owner by
letting the owner move and then seeking to value the property as vacant.
Under the Eminent Domain Act, delay during trial is less likely, or, if delay occurs, it is less
likely to harm the owner. The EDA provides incentives for the condemnor to expedite trial. The
EDA establishes that the property in condemnation is to be valued as of the date the complaint
was filed; however, if trial does not occur within two years of the filing, the court may advance
the valuation date to the date of trial. 735 ILCS 30/10-5-60. This usually leads to a higher
valuation.
9. [2.25] Approval of Illinois Commerce Commission for Acquisition of Public Utility
Property
Section 10-5-10(g) of the Eminent Domain Act requires that a condemnor obtain permission
from the Illinois Commerce Commission before acquiring public utility property by eminent
domain:
No property [with certain exceptions] belonging to a railroad or other public utility
subject to the jurisdiction of the Illinois Commerce Commission may be taken or
damaged, pursuant to the provisions of [the Article VII of] this Act, without the prior
approval of the Illinois Commerce Commission. 735 ILCS 30/10-5-10(g).
Similarly, a motion for vesting title in a quick-take condemnation pursuant to 735 ILCS
30/20-5-5(b) requires prior approval for the acquisition by the Illinois Commerce Commission.
The EDA is silent as to what standards the Illinois Commerce Commission should use in
considering whether to grant approval. There is a dearth of caselaw; one court has simply
declared that the purpose of the approval requirement “is to insure that property necessary for
utility purposes is not taken.” Department of Conservation v. Chicago & North Western
Transportation Co., 59 Ill.App.3d 89, 375 N.E.2d 168, 170, 16 Ill.Dec. 537 (2d Dist. 1978).
In addition to the lack of standards, it is also unclear whether this requirement is jurisdictional
or may be waived by agreement. The one certainty is that the condemning body is assured of two
condemnation proceedings for each utility parcel. Therefore, the attorney and the client must
make allowances for additional preparation required by both an Illinois Commerce Commission
and a circuit court proceeding.
10. [2.26] Special Considerations — Railroad Property
For railroad property, additional regulatory approval must be sought. In order for a railroad to
abandon trackage, it must receive the permission of the Surface Transportation Board (STB) of
the United States Department of Transportation. 49 U.S.C. §10903. The STB is the successor to
the Interstate Commerce Commission. By regulation, the STB has exempted rail property inactive
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for two years from the purview of the statute. 49 C.F.R. §§1152.50, 1152.60. For acquisition of
exempt property not in active rail use, certification to the STB is given by the railroad itself. Note
that it is often impossible to determine by casual inspection whether a rail line is in use. Although
a line may appear to be abandoned or to have little or no use, it nevertheless may not have met the
qualifications for exemption.
State condemnation, if it involves substantial interests in railroad property, is preempted by
federal statute because it would unreasonably interfere with railway use. In Union Pacific R.R. v.
Chicago Transit Authority, 647 F.3d 675 (7th Cir. 2011), the court held that the Chicago Transit
Authority’s proposed state condemnation proceedings would affect a railroad company’s actively
used railroad property and thus would constitute an unreasonable interference and exceeded what
was permitted under the ICC Termination Act (ICCTA), Pub.L. No. 104-88, 109 Stat. 1028.
Accordingly, the condemnor must apply to the STB for approval to institute a major
condemnation of railroad property that interferes with railroad operations.
P. [2.27] Condemnation for Use by Another Governmental Entity — Intergovernmental
Cooperation
The courts have approved the acquisition of property by one agency for conveyance to
another agency. In Department of Transportation of State of Illinois v. Callender Construction
Co., 305 Ill.App.3d 396, 711 N.E.2d 1199, 238 Ill.Dec. 538 (4th Dist. 1999), the Illinois
Department of Transportation built a highway through a conservation area and sought to replace
it by acquiring a conservation easement over other private property. The court, citing the
Intergovernmental Cooperation Act, 5 ILCS 220/1, et seq., held that the acquisition was
necessary for the highway even though the conservation easement was to satisfy an agreement
with the Illinois Department of Conservation. See also City of Chicago v. Gorham, 80 Ill.App.3d
496, 400 N.E.2d 42, 35 Ill.Dec. 905 (1st Dist. 1980) (approving City of Chicago acquisition of
property for state office building).
Q. [2.28] Condemnation of Property of Another Public Entity — Municipal Acquisition
of Public Property
Section 11-61-2 of the Illinois Municipal Code permits municipalities to acquire property
belonging to certain other public entities when the acquisition will not materially impair or
interfere with the use already existing and will not be detrimental to the public. 65 ILCS 5/11-61-2.
In Village of Woodridge v. Board of Education of Community High School District 99, 403
Ill.App.3d 559, 933 N.E.2d 392, 342 Ill.Dec. 806 (2d Dist. 2010), the school district held property
for future use. The appellate court held that there was no already existing use that would prevent
the village from acquiring the property.
R. [2.29] Preservation of Status Quo While Condemnation Is Pending
Condemnation may be used to preserve a threatened natural resource, a historic property, or
any existing improvement that the condemning body desires to retain. In Forest Preserve District
of DuPage County v. West Suburban Bank, 161 Ill.2d 448, 641 N.E.2d 493, 204 Ill.Dec. 269
(1994), the Illinois Supreme Court upheld an injunction issued by the trial court preventing the
landowner from converting pristine prairie land into parking lots. Although the actual take is not
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complete until after a verdict, judgment, and deposit of funds, the court may issue an injunction to
preserve features of the property for which the property is being acquired. When property is at
imminent risk of destruction and the public agency intends to acquire it for preservation of a
resource or historic structure, a complaint for condemnation may be filed to allow a court to issue
an injunction preserving the status quo. Note that in order to file a complaint, there must already
be in existence a statute, ordinance, or other authority authorizing acquisition; the acquisition
must be for a public purpose; and the statutory requirements for condemnation, principally the
attempt to agree, must already be in place or have occurred. One impediment to this methodology
for a state agency is the 60-day notice requirement of 735 ILCS 30/10-5-15. As discussed in
§2.15 above, §10-5-15 provides no penalty for noncompliance. Thus, it can be argued that the
section is directory, not mandatory. Even if the complaint for condemnation would be premature,
the courts may preserve the status quo pending the filing of condemnation. Forest Preserve
District of Cook County v. Mount Greenwood Bank Land Trust 5-0899, 219 Ill.App.3d 524, 579
N.E.2d 1066, 162 Ill.Dec. 252 (1st Dist. 1991).
S. [2.30] Notice of Right-of-Way Designation and Advance Acquisition
Pursuant to 605 ILCS 5/4-510, the Illinois Department of Transportation may designate a
proposed highway right-of-way. The designation has several purposes: it notifies landowners that
their land is likely to be acquired for a highway; it prohibits new development on the proposed
right-of-way that would increase acquisition costs; and it forces IDOT to decide whether to
acquire the property when new development is proposed.
After public notice and a hearing, IDOT records an alignment map showing property lines
and identifying owners of record along the right-of-way. IDOT then publishes public notice and
notifies owners of record that it recorded the map. Thereafter, an owner is required to notify
IDOT 60 days before any improvement or development of the property. IDOT has 45 days
following notice to determine whether to acquire the property through the exercise of eminent
domain. If IDOT decides to acquire, it has 120 days to initiate the purchase. If IDOT declines to
acquire, the owner may develop the property and must be compensated for the improvement if the
property is eventually acquired. But, if the owner fails to give notice, the property will be valued
as if no further development had occurred. Id.
The filing of a highway right-of-way map permits the Department of Transportation to stop
development on land to be acquired. Before an owner can start development, there is effectively a
165-day moratorium, consisting of the 45-day decision period and the 120-day period allowed for
IDOT to commence acquisition. This moratorium would not constitute a taking without
compensation. The mere planning or plotting in anticipation of a public improvement is not a
taking or damage to the affected property. Davis v. Brown, 221 Ill.2d 435, 851 N.E.2d 1198,
1205, 303 Ill.Dec. 773 (2006). See also Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency, 535 U.S. 302, 152 L.Ed.2d 517, 122 S.Ct. 1465 (2002).
The courts continue to hold that planning activities, even those freezing development or
threatening condemnation, do not amount to a taking. In Davis v. Brown, 221 Ill.2d 435, 851
N.E.2d 1198, 303 Ill.Dec. 773 (2006), the Illinois Supreme Court upheld §4-510 of the Illinois
Highway Code (605 ILCS 5/4-510) against an attack on Fifth Amendment grounds. The highway
law authorized the Illinois Department of Transportation to prepare and record maps with
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proposed highway alignments. A property owner within a proposed alignment was prohibited
from undertaking development without giving notice to IDOT and providing the agency 165 days
to consider whether to acquire the property.
Similarly, the Illinois appellate court upheld the DuPage Forest Preserve District’s
reservation of the right to condemn against a regulatory taking challenge. In Stahelin v. Forest
Preserve District of DuPage County, 376 Ill.App.3d 765, 877 N.E.2d 1121, 315 Ill.Dec. 792 (2d
Dist. 2007), the owner complained that it was denied the economic benefit of its property when
the district first filed a condemnation suit, dismissed it, and then passed an ordinance reserving
the right to condemn the property in the future. The court found that these actions were planning
in anticipation of a possible future taking and were thus not actionable.
T. [2.31] Prefiling Contacts with the Owner
It is good public policy and good public relations for the condemning body to inform the
owner at an early date that acquisition of the owner’s property is probable. This early notice will
give the owner adequate time to plan to move and will avoid surprises. The regulations
promulgated under the Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970 require that, for federally funded projects, the owner must be informed of his or her
rights and the condemnation procedures. Pursuant to 49 C.F.R. §24.203, landowners must be
informed of the length of time they will be permitted to occupy condemned property, the right to
present evidence regarding value, and the relocation benefits that may be expected. This
information is ordinarily provided by the condemning state agency through the use of a form
letter and an enclosed booklet outlining the condemnee’s rights and obligations.
Even for projects to which the URA does not apply, it is good policy for the staff of the
condemning body to make early contact with affected property owners concerning the impending
condemnation. The condemning attorney should carefully monitor the staff’s communication
with landowners. It is important not to give this notice to owners whose property will not be taken
and not to give the notice too early. In addition to other effects, notification of condemnation can
adversely affect property owners by making the properties unmarketable or discouraging
investment in improving or maintaining their properties to be acquired. See also the ethical
considerations noted in §2.39 below regarding communications with a property owner.
U. [2.32] Records of Conversations
Perhaps attorneys need not be reminded of the necessity for keeping notes and records of
contacts with owners and their attorneys. Questions occasionally arise about whether an attempt
to agree occurred. An attorney’s notes concerning telephone calls from and meetings with the
owner or the owner’s attorney will be helpful in confirming that the offer was received and that
an attempt was made to agree. Similarly, one can keep a record of the parties’ latest position on a
settlement amount. With many parcels in a project, it is difficult to commit to memory the latest
prices being discussed in negotiations. Adequate notes will allow the attorney to avoid mistakes
and to refresh the attorney’s recollection in case there is a dispute as to whether the owner
received an offer or the condemnor failed to negotiate.
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ILLINOIS EMINENT DOMAIN PRACTICE
PRACTICE POINTER

The regulations under the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 require that written records be maintained of all contacts with
owners.
V. [2.33] Prefiling Inspection
Contact with the property owner is required at the appraisal stage. The regulations
promulgated under the Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970 require that the property owner be given notice that an appraiser will be inspecting
the affected property. 49 C.F.R. §24.102. The owner should be given the opportunity to
accompany the appraiser on the inspection. For federally funded projects, this is a requirement.
Cooperation of the owner is also essential in order to inspect the interior of the property. Until a
complaint for condemnation is filed, discovery is unavailable. Therefore, the appraiser will be
unable to enter nonpublic portions of private property without the invitation of an owner or
occupant.
PRACTICE POINTER

For highway projects, the Illinois Highway Code authorizes the state to inspect property
irrespective of permission. 605 ILCS 5/4-503. Note that the Code requires that the state
will be responsible for all damages occasioned thereby.
It is increasingly important for the condemnor to know whether the property to be acquired is
polluted. The condemning body should know whether the property is currently or was in the past
used as the site of potentially contaminating activities, whether underground storage tanks exist,
and whether the property is otherwise contaminated. The problem is that the owner may be
unwilling to reveal any of this information. The usual kind of environmental inspection, a Phase I
audit, may be conducted by an environmental consultant. A Phase I audit requires a review of
public records. However, except for certain state acquisitions, soil tests and onsite inspections
may be conducted only with the owner’s consent before initiation of a condemnation proceeding.
A sample form of a letter notifying the property owner of the imminence of condemnation
and requesting an inspection is found in §2.75 below.
W. Attempt To Agree as to Compensation
1. [2.34] Attempt To Agree a Prerequisite
The Eminent Domain Act evidences the public policy of encouraging voluntary acquisitions
of property and discouraging forced acquisitions through the exercise of eminent domain. Patrick
Media Group, Inc. v. DuPage Water Commission, 258 Ill.App.3d 1068, 630 N.E.2d 958, 196
Ill.Dec. 793 (1st Dist. 1994). 735 ILCS 30/10-5-10(a) requires that a complaint for condemnation
may not be filed unless the condemnor cannot agree with the interested parties as to the amount
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of compensation to be paid for the property sought to be appropriated or damaged unless the
owner of the property is incapable of consenting, his or her name or residence is unknown, or he
or she is a nonresident of the state. The inability to agree must be alleged in the complaint for
condemnation. City of Chicago v. Collin, 302 Ill. 270, 134 N.E. 751 (1922); Trustees of Schools
v. Clippinger, 404 Ill. 202, 88 N.E.2d 451 (1949).
PRACTICE POINTER

The offer to purchase may be sent at any time, even before any other formal action to
acquire the property has been taken. In City of Oakbrook Terrace v. LaSalle National
Bank, 186 Ill.App.3d 343, 542 N.E.2d 478, 134 Ill.Dec. 299 (2d Dist. 1989), the court
upheld the validity of the city’s offer to purchase even though the offer was sent before
the city had enacted an ordinance authorizing condemnation. The property owner noted
that the ordinance that was eventually enacted authorized the city attorney to undertake
negotiations to purchase (as these ordinances usually do) and, if the negotiations should
prove unsuccessful, to initiate condemnation. However, the offer was transmitted before
the enactment of the ordinance. The property owner challenged the offer on the ground
that it was not the offer authorized by a later-enacted ordinance. The court upheld the
validity of the preordinance offer, noting that there is good reason to hold these
negotiations valid even if they precede an authorizing ordinance. If the negotiations were
successful, they would eliminate the necessity for city council action. Such an offer
satisfies the Eminent Domain Act because it facilitates the amicable conveyance of the
property.
2. [2.35] Condemnation Following Unsuccessful Negotiations by the Expected
Developer
It is understood that the offer prerequisite to acquisition must be made in good faith.
Department of Transportation ex rel. People v. 151 Interstate Road Corp., 209 Ill.2d 471, 810
N.E.2d 1, 7, 284 Ill.Dec. 348 (2004). Is good faith lacking when condemnation proceeds after
negotiations by private purchasers fail?
Property acquired in connection with a redevelopment project is sometimes conveyed to a
developer for private development. In order to avoid condemnation costs and in hopes of saving
money and time, the prospective developer often tries to negotiate the purchase of the needed
property prior to the initiation of condemnation by the governmental body. Because the private
developer lacks condemnation power, the property owner may refuse to accept a price that the
developer considers reasonable. After failure to reach an agreement with the property owner, the
private developer will call on the government to use its eminent domain powers to force a
reluctant owner to sell and to do so for a reasonable price.
The exercise of the government’s power of expropriation to support private development and
to force an unwilling owner to sell at a price the private developer believes to be more reasonable
may appear to be an abuse of power. In Illinois State Toll Highway Authority v. DiBenedetto, 275
Ill.App.3d 400, 655 N.E.2d 1085, 211 Ill.Dec. 702 (1st Dist. 1995), the property owner
challenged the acquisition on the ground that the condemnor, acting through a third party, had
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ILLINOIS EMINENT DOMAIN PRACTICE
made an inadequate offer, thus demonstrating that the offer had been made in bad faith. Homart
Development Company, an eventual private beneficiary of the public project, initially offered to
purchase the property at a price equivalent to only 66 percent of the condemnor’s (official)
subsequent offer. The court found that the Homart offer was not made on behalf of the
condemnor and was not so low as to be in bad faith. Justice Zwick, concurring, argued, however,
that the Homart offer was bad practice and not in good faith.
The property owner in City of Chicago v. Boulevard Bank National Ass’n, 293 Ill.App.3d
767, 688 N.E.2d 844, 228 Ill.Dec. 146 (1st Dist. 1997), alleged that bad faith occurred when the
intended developer asked the city to condemn after the developer was unable to obtain the
property through private negotiations. The court upheld the condemnation without considering
the allegations of bad-faith negotiations.
In Village of Skokie v. Gianoulis, 260 Ill.App.3d 287, 632 N.E.2d 106, 198 Ill.Dec. 47 (1st
Dist. 1994), a bank attempted to negotiate a purchase of the Gianoulis’ property. When
negotiations failed, the bank sought to have the village condemn the property for it as part of an
existing redevelopment project. While the appellate court described the purchase attempt, it did
not rule on it. Instead, the court found that there was no authority to condemn because the
property had not been included in the original acquisition ordinance.
The final word is that of the Illinois Supreme Court. In Southwestern Illinois Development
Authority v. National City Environmental, L.L.C., 199 Ill.2d 225, 768 N.E.2d 1, 263 Ill.Dec. 241
(2002), the court found such an acquisition to violate the public use provision of the United States
and Illinois Constitutions. The owner of a motor raceway (originally developed with the support
of the Southwestern Illinois Development Authority (SWIDA)) failed in its attempt to purchase a
neighboring property for additional patron parking. SWIDA then attempted to condemn the
property for the purpose of conveying it to the raceway. The Illinois Supreme Court held that
SWIDA’s condemnation was not for a public purpose.
3. [2.36] Who May Submit the Condemnor’s Offer?
It probably does not matter who submits the offer to purchase as long as it is clear that the
offerer is acting on behalf of the condemnor. In state cases, it may be a highway engineer; in
other cases, it may be the chief executive officer, the head of the planning department, or the
condemnor’s attorney. See Forest Preserve District of DuPage County v. Brown Family Trust,
323 Ill.App.3d 686, 753 N.E.2d 1110, 257 Ill.Dec. 484 (2d Dist. 2001), for an ordinance
specifically authorizing particular officers to negotiate a purchase of property on behalf of the
condemnor.
4. [2.37] Testing the Sufficiency of the Attempt
The sufficiency of the attempt to agree on compensation to be paid is a preliminary question
that must be challenged by a traverse (motion to dismiss). City of Evanston v. Piotrowicz, 20
Ill.2d 512, 170 N.E.2d 569 (1960). If not traversed, the objection is waived, and the court may
proceed to determine just compensation. People ex rel. White v. Busenhart, 29 Ill.2d 156, 193
N.E.2d 850 (1963); Chicago Housing Authority v. Berkson, 415 Ill. 159, 112 N.E.2d 620 (1953).
If the allegations of the petition to condemn required by 735 ILCS 30/10-5-10 are not included in
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the petition, the objection thereto may be raised by a motion to dismiss because the court may not
proceed to determine the just compensation to be paid unless the petition complies with the
statutory jurisdictional allegations. Department of Public Works & Buildings v. Lewis, 344 Ill.
253, 176 N.E. 345 (1931).
5. [2.38] Form Indicating Attempt To Agree
In order to avoid the question of a good-faith attempt to agree, a wise practice for the
condemnor is to make a final offer by letter referring to the negotiations between the
condemnor’s agent and the landowner, concluding by advising the owner that if the offer is not
accepted within a stated number of days, it must be concluded that the parties cannot agree on
compensation to be paid for the taking. Such a letter is sufficient to prove adequate negotiations if
no response is received by the condemnor. Peoples Gas Light & Coke Co. v. Buckles, 24 Ill.2d
520, 182 N.E.2d 169 (1962); Village of Deerfield v. Rapka, 54 Ill.2d 217, 296 N.E.2d 336 (1973);
Illinois State Toll Highway Authority v. Karn, 9 Ill.App.3d 784, 293 N.E.2d 162 (2d Dist. 1973).
A sample form of a final good-faith offer letter is found in §2.80 below. Note that the letter of
offer (a) describes the property sought to be acquired, (b) describes the interest sought to be
acquired, (c) offers a sum certain for the interest sought, and (d) sets a specific time within which
a response is requested. While none of these elements is specifically required by statute, the
incorporation of these elements into the letter of offer will generally simplify proof of an attempt
to agree should the issue later be raised in the condemnation proceedings.
Written records of attempts to agree should be kept, including notes of telephone calls with
the owner or owner’s representative. Also, the written offer should be sent by certified mail,
return receipt requested. Outside negotiators should keep memoranda of all contacts with the
owner.
6. [2.39] Conferences with Unrepresented or Represented Defendant
The condemnor’s attorney should be mindful of potential conflicts when communicating with
an owner. The letter of offer (or other precondemnation contacts) will frequently bring an
immediate telephone call from a landowner. Unsophisticated owners will have many questions,
such as the imminence of the acquisition, how long they can stay on their property, how much
money they can expect, how much money the condemning body has appropriated to purchase
their property, and how they should go about establishing a value for it. Since the condemning
attorney is, by nature of the assignment, in an adversarial position to the owner, the attorney must
be very careful about these direct contacts with the owner. On the one hand, as a representative of
a public body, the attorney will want to furnish to the owner truthful and informative data
concerning the history of the acquisition project and general aspects of the condemnation
procedure. On the other hand, the condemning attorney does not want to be in the position of
giving legal advice to an adversary. In particular, the condemning attorney does not want to leave
the landowner with the impression that the attorney is representing him or her. Illinois Rule of
Professional Conduct 4.3 states:
In dealing on behalf of a client with a person who is not represented by counsel, a
lawyer shall not state or imply that the lawyer is disinterested. When the lawyer
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knows or reasonably should know that the unrepresented person misunderstands
the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct
the misunderstanding.
Another rule, RPC 4.2, prohibits contact with an adversarial party if the party is represented
by counsel, providing that “a lawyer shall not communicate about the subject of the
representation with a person the lawyer knows to be represented by another lawyer in the matter”
without obtaining the prior consent of the other lawyer. Accordingly, one of the first questions the
condemning attorney should ask is whether the owner is represented by counsel. If the owner is
represented by counsel, the condemning attorney should advise the owner of the requirements of
RPC 4.2 and that the owner’s attorney should contact the condemning attorney as soon as
possible.
7. [2.40] Terminating the Negotiations
Almost any good-faith attempt to agree will be considered in compliance with 735 ILCS
30/10-5-10(a). Nevertheless, care should be taken to terminate the negotiations if they cannot lead
to a settlement so that it may be demonstrated that the compensation “cannot be agreed upon by
the parties interested.” Id. In one of the few cases in which an appellate court found that the state
had not demonstrated that the parties were unable to agree, the state negotiators had failed to
respond to a counteroffer submitted by the owner in response to the negotiator’s offer. Failure to
reject the counteroffer was evidence that the attempt to agree was continuing. Department of
Transportation v. Walker, 80 Ill.App.3d 1039, 400 N.E.2d 956, 36 Ill.Dec. 376 (3d Dist. 1980).
Contra County of Wabash v. Partee, 241 Ill.App.3d 59, 608 N.E.2d 674, 682, 181 Ill.Dec. 601
(5th Dist. 1993) (“The offer was not responded to. Therefore, the county was under no obligation
to continue to negotiate further.”).
8. [2.41] Waiver
The landowner’s filing of a cross-petition for damages to the land not taken constitutes a
waiver of the question of whether there has been a failure to agree on compensation to be paid.
Fayette County v. Whitford, 365 Ill. 229, 6 N.E.2d 157 (1936); Chicago N.S. & M.R. Co. v.
Chicago Title & Trust Co., 328 Ill. 610, 160 N.E. 226 (1928).
9. [2.42] Multiple Owners, Incompetents, and Nonresidents
When there is more than one owner, proof of the inability to settle with an owner is sufficient
to satisfy the requirements of an attempt to agree. Public Service Co. of Northern Illinois v.
Recktenwald, 290 Ill. 314, 125 N.E. 271 (1919); Trustees of Schools of Township No. 37 v. First
National Bank of Blue Island, 49 Ill.2d 408, 274 N.E.2d 56 (1971). When the owner of property
is incapable of consenting, when his or her name or residence is unknown, or when he or she is a
nonresident of the state, a petition to condemn may be filed, and no attempt to agree in this
instance is required. 735 ILCS 30/10-5-10(a).
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10. [2.43] Standards for Finding an Attempt To Agree
Although in some reported decisions the courts use the word “negotiations” in the context of
an attempt to agree (see, e.g., Department of Transportation v. Platolene ‘500’, Inc., 33
Ill.App.3d 470, 337 N.E.2d 100 (4th Dist. 1975)), it appears that a mere offer to purchase the
property will suffice as an attempt to agree. In County Board of School Trustees of Macon County
v. Batchelder, 7 Ill.2d 178, 130 N.E.2d 175, 178 (1955), the court stated:
Defendants’ contention that there was a failure to prove inability to agree on
compensation before the petition was filed must likewise be rejected. By letter
addressed to defendants they were offered the sum of $500 for their land, and no
reply was made to the letter. Under such circumstances no further attempt to
negotiate was necessary. There was sufficient effort on the part of the Board to agree
with defendants.
Thus, the focal point is an attempt to agree. Under appropriate circumstances, an offer may
not even be required. For example, in County Board of School Trustees of DuPage County v.
Boram, 26 Ill.2d 167, 186 N.E.2d 275 (1962), the landowner was adamant that he would accept
only a certain figure that the condemnor was not willing to pay, and it was thus clear from the
acts of the parties that an offer would be futile. In Davis v. Northwestern El. Ry., 170 Ill. 595, 48
N.E. 1058, 1059 (1897), the court said:
It was contended that the court had no jurisdiction to entertain the petition unless
there was proof of the failure on the part of the petitioner to be able to agree with
the lot owner as to the amount of compensation. The pleadings show that defendants
were nonresident, and that certain of them were minors. In such case it is not
necessary to show by proof that the compensation and damage could not be agreed
upon. The minors could not make an agreement.
Generally, a landowner will seek a higher price for his or her property if he or she is aware
that it is needed for a public improvement, and it could, therefore, be advantageous for a
condemnor to attempt to acquire the necessary property without revealing its true identity.
However, the condemnor may not fulfill the “attempt to agree” requirement by seeking to acquire
the property through an undisclosed agent. Pittsburgh, C., C., & St. L. Ry. v. Gage, 280 Ill. 639,
117 N.E. 726 (1917).
A refusal of one of the owners to agree to sell will generally excuse the condemnor from
making any further effort to agree. In St. Louis & C.R. Co. v. Postal Tel. Co. of Illinois, 173 Ill.
508, 51 N.E. 382, 387 (1898), the lessee was unwilling to agree to the construction of a telegraph
line on its property. The court stated:
As the Mobile & Ohio Railroad Company had a lease of the right of way, which was
not to expire for 34 years, a refusal on its part to allow the appellee to construct its
telegraph line rendered such construction impossible, without reference to what the
lessor, the St. Louis & Cairo Railroad Company, might have to say in the
matter. . . . Where an owner refuses to sell altogether, negotiation as to the amount
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of compensation is thereby cut off. . . . It is not necessary that there should be a
series of efforts, or a prolonged negotiation, in order to agree upon compensation;
an effort to agree is all that is required.
The condemnor is not required to wait for an unlimited period of time to allow the owner to
make up his or her mind. In Mercer County v. Wolff, 237 Ill. 74, 86 N.E. 708, 711 (1908), the
court stated:
The appellants object that it is essential to allege and prove that the petitioner
cannot agree with the owners upon the compensation to be paid, and that the
evidence shows that they could agree with Prentiss, and that Wolff was negotiating
with the county when the petition was filed. Whether or not the petitioner could
agree with Prentiss did not affect the appellants. Wolff had declined to accept the
offer of the county; and, while it is true that he stated that he could not give an
answer within a week, the county board was not compelled to wait that length of
time. If he would not accept the offer, that was a failure to agree.
An offer to purchase extended by the condemning body’s attorney is considered bona fide
even though the amount offered by the attorney is subject to later approval by the governing
board of the condemnor. The Eminent Domain Act simply requires an attempt to agree, and
Illinois courts have never held that a condemnation offer must be the same as a legally binding
offer in private estate cases. Lake County Forest Preserve District v. First National Bank of
Waukegan, 200 Ill.App.3d 354, 558 N.E.2d 721, 146 Ill.Dec. 758 (2d Dist. 1990).
The time in which the owner has to react to the condemnor’s offer may be as little as 10 days.
The court so held in Forest Preserve District of DuPage County v. First National Bank of
Franklin Park, 2011 IL 110759, 961 N.E.2d 775, 356 Ill.Dec. 386. Whatever may be an
acceptable time under Illinois law for an agency to allow an owner to consider the offer, 30 days
is the minimum under the Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970. 49 C.F.R. pt. 24, app. A, Section 24.102(f) Basic negotiation procedures.
Whether the condemnor used a flawed appraisal report as the basis for negotiating
compensation is relevant to the issue of good-faith negotiation. People ex rel. Department of
Transportation v. Kotara, L.L.C., 379 Ill.App.3d 276, 884 N.E.2d 1235, 318 Ill.Dec. 964 (3d
Dist. 2008). An appraisal may not satisfy the good-faith requirement if it does not follow the
Uniform Standards for Professional Appraisal Practice or does not comply with the state’s own
Land Acquisition Manual. Id.
The condemnor is only required to conduct negotiations with the owner of the property. Other
parties having in interest in the property, even those having an interest in the eventual award of
just compensation, need not be brought into the negotiations. Department of Transportation v.
Anderson, 384 Ill.App.3d 309, 892 N.E.2d 116, 322 Ill.Dec. 869 (3d Dist. 2008), noting that §105-10 of the Eminent Domain Act only requires negotiation with the “owner of the property.” The
Anderson court also held that an interested party, other than the owner, may not contest the
amount of preliminary just compensation in a quick-take proceeding, a dubious proposition.
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11. [2.44] Good-Faith Offer — Reasonableness of the Amount
A mere difference of opinion as to value will not disqualify an offer. Department of
Transportation ex rel. People v. Brownfield, 221 Ill.App.3d 565, 582 N.E.2d 209, 164 Ill.Dec. 1
(3d Dist. 1991). Nevertheless, Illinois courts continue to frown on lowball offers. In City of
Naperville v. Old Second National Bank of Aurora, 327 Ill.App.3d 734, 763 N.E.2d 951, 261
Ill.Dec. 702 (2d Dist. 2002), the court affirmed a dismissal of the complaint for condemnation
because of the condemnor’s failure to make a good-faith offer. The City of Naperville had offered
the owners $200,000 despite the value of $500,000 determined by the city’s own appraiser. The
court all but said that the appraisal value must be offered: “[G]ood faith requires that the
condemning authority offer a price that correlates to the fair market value of the property as
determined by the condemning authority.” [Emphasis added.] 763 N.E.2d at 957. By this
reasoning, the condemnor would have to show why market value of the property was less than its
appraisal in order to justify offering a lesser amount.
The offer must be carefully drawn and must be supported by an appraisal or other substantial
indication of value. Caselaw has interpolated the requirements of bona fides and good faith into
the simple “attempt to agree” language of §10-5-10(a) of the Eminent Domain Act, 735 ILCS
30/10-5-10(a). In the past, virtually any offer transmitted by the condemnor could be considered
acceptable, even under the standards of bona fides and good faith. However, off-the-wall offers
without a sufficient basis in fact violate the standard and will be subject to a motion to dismiss. In
Forest Preserve District of Will County v. Marquette National Bank, 208 Ill.App.3d 823, 567
N.E.2d 635, 638, 153 Ill.Dec. 677 (3d Dist. 1991), the forest preserve district’s offer was held to
be insufficient. The district submitted a “windshield” appraisal. The so-called appraisal ignored
recent rezonings, offers to purchase, and investments of capital. The amount offered was grossly
insufficient. The court upheld the dismissal based on the district’s failure to meet the statutory
requirements. See also City of Chicago v. Zappani, 376 Ill.App.3d 927, 877 N.E.2d 17, 315
Ill.Dec. 530 (1st Dist. 2007).
There are no fixed guidelines for judging how high an offer must be in order for it to meet the
requirement of good faith. For example, in City of Oakbrook Terrace v. LaSalle National Bank,
186 Ill.App.3d 343, 542 N.E.2d 478, 134 Ill.Dec. 299 (2d Dist. 1989), the court found valid an
offer that was almost one fifth the value sought by the property owner. It should be noted that in
Oakbrook Terrace, the city’s offer was supported by an appraisal. But see City of Springfield,
Illinois v. West Koke Mill Development Corp., 312 Ill.App.3d 900, 728 N.E.2d 781, 245 Ill.Dec.
699 (4th Dist. 2000), in which a $200 offer, even in light of a $54,925 jury verdict, was not,
without more, evidence of the city’s failure to negotiate in good faith.
The Illinois Supreme Court has clarified what is required for a good-faith offer. Although
many appellate courts have held that the condemnor’s attempt to agree must be in good faith, the
Illinois Supreme Court has stated definitively that “the Eminent Domain Act requires the
condemnor to negotiate with the landowner in good faith over the amount of compensation to be
paid before it initiates proceedings to take the landowner’s property through eminent domain.”
Department of Transportation ex rel. People v. 151 Interstate Road Corp., 209 Ill.2d 471, 810
N.E.2d 1, 7, 284 Ill.Dec. 348 (2004). The court further noted that a disparity between the owner’s
and the condemnor’s views does not indicate that an offer was not made in good faith. In 151
Interstate Road, the court rejected the owner’s argument that the offer, based on an appraisal, was
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not in good faith because the appraiser lacked credentials, there was weakness in the appraiser’s
analysis, and the appraiser did substantial business with the state. Since the appraisal was
performed by a licensed appraiser with 15 years of experience who followed accepted
methodology and did not deviate from professional standards, the offer was not lacking in good
faith despite the appraiser’s opinion being substantially lower than that of the owner. Thus, an
offer based on a competent appraisal meets the standard of good faith.
The issue was clarified somewhat by the Illinois Supreme Court in Forest Preserve District
of DuPage County v. First National Bank of Franklin Park, 2011 IL 110759, ¶63, 961 N.E.2d
775, 356 Ill.Dec. 386, in which the court held that an offer “based on the advice of an experienced
appraisal consultant” establishes a good-faith attempt to agree. It would seem to offer a safe
harbor if the condemnor offers to purchase at the full appraised value. In Forest Preserve District
of DuPage County, the court approved an offer that was ten percent below the condemnor’s
appraisal (although the district received a lower appraisal after it submitted its offer).
In Forest Preserve District of DuPage County, the court held that there is no need for the
condemnor to submit its appraisals to the owner when it transmits its offer to purchase.
PRACTICE POINTER

Although the state is not required to furnish them when it sends its offer to purchase, the
state’s appraisals are frequently available for the asking. The owner’s attorney should
request a copy of the appraisals, including any review appraisals. The attorney
representing the state should have no problem with this request, since the appraisals
would be subject to disclosures in discovery and pursuant to the Freedom of Information
Act, 5 ILCS 140/1, et seq.
12. [2.45] Successful Negotiations — Acquisition by Agreement
After successful negotiations, the property may be acquired by contract to convey. The
contract may be in the usual form of a real estate buy-sell agreement. The closing of the sale may
be accomplished as in ordinary private transactions. It is customary (required in federal cases) for
the condemnor to pay the owner’s closing costs.
PRACTICE POINTER
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An owner’s voluntary sale may not convey all interests in the property. In certain
circumstances, it may not be advisable for the condemnor to acquire property through a
buy-sell agreement even if the parties are in agreement as to the price. An owner may not
be able to furnish good title or may be unable to deliver all of the interests in the
property. This is particularly true when the property is burdened by easements, tenants, or
other occupants. In these cases, the condemning authority succeeds to the position of the
seller. The condemnor becomes the landlord and must still deal with the holders of
easements, tenants, and other occupants.
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INITIAL PROCEDURES AND PLEADINGS OF THE STATE AND OTHER CONDEMNING BODIES
§2.46
13. [2.46] Voluntary Conveyance
Even if negotiated under the threat of condemnation, voluntary sales by the owner have the
attributes of an ordinary conveyance, not a condemnation. In Patrick Media Group, Inc. v.
DuPage Water Commission, 258 Ill.App.3d 1068, 630 N.E.2d 958, 196 Ill.Dec. 793 (1st Dist.
1994), the Illinois appellate court held that the commission’s termination of a lease on purchased
property was not a taking for which compensation was due. Under threat of condemnation, the
water commission purchased land that had been leased for use by the billboard company. After
the conveyance, the water commission sent a termination notice pursuant to the lease. The court
held that the lease was terminated by contract law, not condemnation.
Relying on Patrick Media, the court in Kleinschmidt Inc. v. County of Cook, 287 Ill.App.3d
312, 678 N.E.2d 1065, 223 Ill.Dec. 57 (2d Dist. 1997), held that the question of the condemnor’s
authority to condemn was irrelevant to the validity of a voluntary conveyance. Cook County
purchased the plaintiff’s property under threat of condemnation. It later conveyed part of the
property to a third party to substitute for property taken from that party. The plaintiff sued to undo
the original conveyance because the county’s reconveyance of the property was not for public
use. The court found that the public-use argument was not relevant because the conveyance was
considered voluntary despite having occurred under threat of condemnation.
A consent judgment in a condemnation case is treated differently than a contract to convey.
In City of Marseilles v. Radke, 287 Ill.App.3d 757, 679 N.E.2d 125, 223 Ill.Dec. 181 (3d Dist.
1997), the parties agreed to a consent judgment in a condemnation case. The property owner had
a change of heart and moved to vacate the consent judgment on the ground that the city had no
authority to condemn since the subject property was outside the boundaries of the project for
which condemnation was being exercised. The appellate court agreed, holding that the boundary
question was jurisdictional, so the trial court had no jurisdiction to entertain condemnation or to
enter a consent decree.
These cases suggest that a voluntary conveyance (but not necessarily a consent judgment),
even under threat of condemnation, trumps any procedural errors or substantive questions of the
authority to condemn.
The Public Officer Prohibited Activities Act, 50 ILCS 105/0.01, et seq., requires that
“[b]efore any contract relating to any ownership or use of real property is entered into by and
between the State or any local governmental unit . . . the identity of every owner and beneficiary
having any interest . . . in such property . . . must be disclosed.” 50 ILCS 105/3.1. The Act
provides the details concerning the size of interest that must be disclosed and how disclosure
should be made. The disclosed property ownership interests include those of any parent entity.
The settlement amount of a voluntary conveyance is not admissible at trial. The condemning
body need not avoid a voluntary conveyance for fear that the amount might be used to establish
compensation at the trial of other parcels in a project. Compensation paid under threat of
condemnation is not considered a voluntary sale. Board of Trustees of University of Illinois v.
Shapiro, 343 Ill.App.3d 943, 799 N.E.2d 383, 389, 278 Ill.Dec. 665 (1st Dist. 2003), citing Forest
Preserve District of Cook County v. Krol, 12 Ill.2d 139, 145 N.E.2d 599 (1957), and Oak Brook
Park District v. Oak Brook Development Co., 170 Ill.App.3d 221, 524 N.E.2d 213, 120 Ill.Dec.
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§2.47
ILLINOIS EMINENT DOMAIN PRACTICE
448 (2d Dist. 1988). Even if not admissible at trial, the amount paid is a matter of public record
and is likely to be considered by both sides in negotiations for the acquisition of subsequent
parcels.
PRACTICE POINTER

The Public Officer Prohibited Activities Act also makes it unlawful for any appointed or
elected official to have a financial interest in a contract that the officer might be called on
to vote for. 50 ILCS 105/3. In the contract of conveyance for the acquisition of any real
property, it is useful to have the owner disclaim any interest in the property or its
proceeds by a public officer. This can be done by inserting in the contract a section that
paraphrases the relevant portions of §3 of the Act.
14. [2.47] Alternate Acquisition by Purchase of Mortgage or Other Lien Rights
In addition to condemnation and voluntary sale, a governmental body may acquire real
property by nontraditional or innovative means. For example, for distressed property, a
governmental body may deem it advisable to take over a creditor’s or lienholder’s position, such
as by purchasing a mortgage in foreclosure. These alternate methods have received court
approval. The manner by which the forest preserve district may acquire land for its purposes is
“by gift, grant, legacy, purchase or condemnation.” 70 ILCS 810/8. The power to create forest
preserves is exercised in order to “protect[] and preserv[e] the flora, fauna, and scenic
beauties . . . and to restore, restock, protect and preserve the natural forests . . . for the purpose of
the education, pleasure, and recreation of the public.” Baker v. Forest Preserve District of Cook
County, 2015 IL App (1st) 141157, ¶40, 33 N.E.3d 745, 393 Ill.Dec. 1 (approving forest preserve
district’s acquisition through purchase and foreclosure of mortgage), quoting 70 ILCS 810/7.
Note that such a purchase gives the government no greater rights than the mortgagor or other
lienholder. The mortgage, for example, could be subject to the mortgagor’s defenses and the
delays attendant to foreclosure.
15. [2.48] Statements by Public Officials — Are They Binding?
Public officials may have opinions of value or the highest and best use of property being
acquired. Is a public body bound by these expressions? In County of St. Clair v. Wilson, 284
Ill.App.3d 79, 672 N.E.2d 27, 219 Ill.Dec. 712 (5th Dist. 1996), the condemnee tried to introduce
the statement of the county board chairman concerning highest and best use. The statement was
asserted to be the admission of the condemning body. One of the problems with this assertion was
that a single person’s “admission” cannot be binding as official policy of a public body. The court
found the chairman’s statement too general and not specifically related to the property at issue in
the case. Therefore, it was not admissible as documentation of the highest and best use in the
acquisition proceeding.
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INITIAL PROCEDURES AND PLEADINGS OF THE STATE AND OTHER CONDEMNING BODIES
§2.50
III. COMPLAINT FOR CONDEMNATION
A. [2.49] Source and Purpose
If the parties cannot agree on the compensation to be paid for the acquisition of property, the
Eminent Domain Act permits the court to determine compensation upon the filing of a complaint
for condemnation. 735 ILCS 30/10-5-10(a). The EDA governs the substance and procedure of
eminent domain proceedings. What is now correctly denominated the “complaint for
condemnation” had traditionally been known as a “petition to condemn.”
It has been said that the sole object of a complaint for condemnation of property for public
use is to ascertain the compensation to be paid for taking or damaging the property, and the
amount of compensation is the only issue. Department of Public Works & Buildings of State of
Illinois v. Sohm, 315 Ill. 478, 146 N.E. 518 (1925). Nevertheless, a complaint for condemnation
has several other practical effects. Upon judgment and deposit of the award, the petition
establishes title in the condemnee as against all persons properly made parties who appear or have
been served and defaulted. In addition, the same court that had jurisdiction to establish the
amount of just compensation may retain jurisdiction to grant the condemnee possession of the
property.
The foregoing functions are frequently sought in the complaint’s prayers for relief. Another
function of the complaint for condemnation is to apportion the award among interested parties. In
the condemnation action, just compensation is established for the property as a whole. When the
award of just compensation is deposited with the county treasurer, the court, upon application of
the parties, has the authority to order distribution of the award among interested parties, such as
the owner of the fee, lessees, mortgagees, lienholders, and the treasurer acting as tax collector.
The power to distribute the award is implicit in 735 ILCS 30/10-5-10, which requires that all
interested parties be joined in the action. Distribution among interested parties also appears
expressly in 735 ILCS 30/10-5-90.
B. [2.50] Elements of the Complaint for Condemnation
The complaint for condemnation is the initial pleading filed by the condemnor and must
follow certain strict requirements. The basic outline and requirements are found in §10-5-10(a) of
the Eminent Domain Act:
The complaint shall set forth, by reference, (i) the complainant’s authority in the
premises, (ii) the purpose for which the property is sought to be taken or damaged,
(iii) a description of the property, and (iv) the names of all persons interested in the
property as owners or otherwise, as appearing of record, if known, or if not known
stating that fact; and shall pray the court to cause the compensation to be paid to
the owner to be assessed. 735 ILCS 30/10-5-10(a).
Caselaw has interpreted and broadened these requirements.
A sample form of a complaint for condemnation is found in §2.76 below. This form may be
used for ordinary as well as quick-take condemnation. Quick-take has been said to be a
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§2.51
ILLINOIS EMINENT DOMAIN PRACTICE
“proceeding within a proceeding.” Department of Public Works & Buildings v. Dust, 19 Ill.2d
217, 166 N.E.2d 36, 38 (1960). After filing a complaint for condemnation, the condemning body
may file a motion for immediate vesting (735 ILCS 30/20-5-5(b)) to gain early title and use of the
property. Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co., 250
Ill.App.3d 665, 619 N.E.2d 1321, 189 Ill.Dec. 272 (2d Dist. 1993). The complaint might also
specify which of the standards of 735 ILCS 30/5-5-5 the condemnor chooses to proceed under, as
does the sample form in §2.76 below. The EDA does not appear to force an election at the time of
filing the complaint, however, and it might preserve the condemnor’s flexibility to avoid making
the choice until the owner raises an objection.
While local practice and the practitioner’s style may alter the suggested wording, §§2.51 –
2.62 below may be considered a checklist of the required elements of a condemnation petition.
1. [2.51] Name in Which the Action Is Brought
The case should be filed under the corporate name of the condemnor, such as “The Board of
Trustees of the University of Illinois,” “The Department of Transportation, State of Illinois,” or
“The City of Kankakee, an Illinois municipal corporation.” Under the School Code, 105 ILCS
5/1-1, et seq., when a school district is the condemning body, the case is brought in the name of
the school board for the use of the condemning school district. 105 ILCS 5/16-6. In Chicago, the
suit would be in the name of “The City of Chicago in Trust for the Use of Schools.”
2. [2.52] Necessary Parties Defendant
The Eminent Domain Act requires that the complaint name as defendants “all persons
interested in the property as owners or otherwise, as appearing of record, if known, or if not
known stating that fact.” 735 ILCS 30/10-5-10(a). This statement is deceptively simple. If a party
is not named, the action is a nullity to this party. Chicago & N.W. Ry. v. Miller, 251 Ill. 58, 95
N.E. 1027 (1911). Therefore, the list of defendants should include any person or entity known to
the condemnor who has any interest in the subject property. In some cases the condemnor will be
aware of a party not shown of record, such as a tenant under an unrecorded lease. Any such party
should be named. The following is a list of types of parties that should be included as defendants:
a. parties revealed of record, including spouses;
b. lienholders and judgment creditors when the judgment has been recorded as a lien against
the property;
c. beneficiaries of trusts, if known (If not known, they should be included as “unknown
owners.” Beneficiaries of land trusts need not be included. Chicago Land Clearance
Commission v. Darrow, 12 Ill.2d 365, 146 N.E.2d 1 (1957); Department of Conservation
v. Franzen, 43 Ill.App.3d 374, 356 N.E.2d 1245, 1 Ill.Dec. 912 (2d Dist. 1976). Under
the older holdings, executors and administrators having no legal title to land were not
necessary parties. Highway Com’rs of Town of Ross v. Chambers, 265 Ill. 113, 106 N.E.
492 (1914). However, under §20-1(a) of the Probate Act of 1975, 755 ILCS 5/1-1, et
seq., which places possession of real estate in the personal representative during the
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INITIAL PROCEDURES AND PLEADINGS OF THE STATE AND OTHER CONDEMNING BODIES
§2.53
period of administration or until possession is granted to the rightful heir or devisee by
the court (755 ILCS 5/20-1(a)), it would appear better practice to make the personal
representative a party to condemnation actions.);
d. guardians of incompetents whose interests in the property are affected;
e. remaindermen, if known, otherwise listed as “unknown owners,” when the record
indicates a remainder interest; and
f.
parties in possession.
NOTE: The above list is intended to be illustrative rather than exhaustive.
PRACTICE POINTER

While a party in possession may not be revealed in the title search, the interest is obvious
and should be revealed to the condemnor through the process of viewing the property and
negotiations prior to the filing of the petition.
It is common, although probably not necessary, to have as a party the county collector, who
has an interest in the property with respect to real estate taxes.
3. [2.53] Unknown Owners
Section 10-5-10(d) of the Eminent Domain Act provides: “Any interested persons whose
names are unknown may be made parties defendant by the same descriptions and in the same
manner as provided in other civil cases.” 735 ILCS 30/10-5-10(d). Unknown owners are named
as parties to avoid the problem of ascertaining parties in interest when the record is not clear or
when either the state of the record or the use and possession of the subject property indicate to the
condemnor that not all interests are shown in the record. The use of the term “unknown owners”
does not relieve the pleader from ascertaining the necessary parties according to the definition in
the EDA. The burden of naming the right parties is on the condemnor, which will be bound by its
pleading on this point. Department of Public Works & Buildings of State of Illinois v. Sohm, 315
Ill. 478, 146 N.E. 518 (1925).
As in other civil cases, in order to serve unknown owners, an affidavit must be filed, and then
service must be obtained by publication. 735 ILCS 30/10-5-25, 5/2-206, 5/2-207, 5/2-413. Note,
however, that if the complaint for condemnation omits the name of an interested party whose
name is actually known or whose name could reasonably have been ascertained, service on this
person cannot be obtained by publication.
Pursuant to 735 ILCS 5/2-401(c), all parties must be named in the body of the complaint.
It is essential that all interested persons be made parties; otherwise, the condemnor risks
having an unnamed party appear after the termination of the proceedings to ask for possession
and compensation. See Wehde v. Regional Transportation Authority, 237 Ill.App.3d 664, 604
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§2.54
ILLINOIS EMINENT DOMAIN PRACTICE
N.E.2d 446, 178 Ill.Dec. 190 (2d Dist. 1992). Even in case of a judgment by agreement, unknown
owners are not bound unless it appears on record that they were properly served but did not
appear and an order of default was entered.
An affidavit as to unknown owners pursuant to 735 ILCS 5/2-206 stating in conclusory terms
that there are persons who have an interest in the property but whose identities are unknown will
not support an order of default in which the identities of the defaulted persons can be learned with
the exercise of diligence. In Algonquin v. Lowe, 2011 IL App (2d) 100603, 954 N.E.2d 228, 352
Ill.Dec. 368, persons with interest in the property had been defaulted after being served by
publication. The appellate court held that the condemnor had not made an effort to find the
property owners; therefore, the affidavit as to unknown owners was insufficient to permit service
by newspaper publication.
Nevertheless, failure to join all parties has no effect on the proceedings with respect to the
persons who have been joined. In Department of Transportation v. Collins, 69 Ill.App.3d 269,
387 N.E.2d 6, 9, 25 Ill.Dec. 549 (3d Dist. 1979), the court stated:
It has long been the rule that the omission of a necessary party does not invalidate a
condemnation proceeding as against those who are made parties, but rather the only
consequence is that, as against the omitted party, the proceeding is nugatory.
4. [2.54] Statement of Authority
The Eminent Domain Act provides that the petition must set forth clearly the authority under
which the condemnor is exercising the right of eminent domain: “The complaint shall set forth,
by reference . . . the complainant’s authority in the premises.” 735 ILCS 30/10-5-10. This may be
satisfied by specific reference to the enabling legislation or statutory grant of authority in cases
involving the State of Illinois, its departments, or a political subdivision of the state. For
condemning bodies other than the state and its departments, the complaint should state, in
addition to the state constitutional or statutory authority, the specific resolution or ordinance
adopted by the corporate authorities or governing body that authorizes the acquisition. For
utilities under the jurisdiction of the Illinois Commerce Commission, reference must be made to
the order of the Commission granting authority to file the proceedings. Peoples Gas Light & Coke
Co. v. Buckles, 24 Ill.2d 520, 182 N.E.2d 169 (1962).
In Trotter v. Spezio, 349 Ill.App.3d 959, 812 N.E.2d 577, 285 Ill.Dec. 757 (3d Dist. 2004),
the court rejected the owner’s contention that the taking was improper because the complaint
failed to cite one of the statutes authorizing the acquisition. Reference to a particular statute was
omitted in the complaint, but the court held nevertheless that the record showed that “[t]here was
no surprise to the landowners” regarding the basis for the take. 812 N.E.2d at 580. Despite this, it
is wise to refer to all statutes and ordinances that authorize the take.
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INITIAL PROCEDURES AND PLEADINGS OF THE STATE AND OTHER CONDEMNING BODIES
§2.56
PRACTICE POINTER

Note the consequences if the owner succeeds in traversing the complaint. If the owner
wins a dismissal for want of authority, it is entitled to attorneys’ fees. Village of Cary v.
Trout Valley Ass’n, 297 Ill.App.3d 63, 696 N.E.2d 1154, 231 Ill.Dec. 583 (2d Dist.
1998).
5. [2.55] Statement of Purpose
The statement of purpose requirement in 735 ILCS 30/10-5-10(a) is met by an allegation that
the taking is for an allowable public use. The exact nature of the proposed use is not required
(East Peoria Sanitary Dist. v. Toledo, P. & W. R.R., 353 Ill. 296, 187 N.E. 512 (1933)), but the
petition may set forth the plan in detail to limit the remainder damages the landowner may seek as
a result of the proposed use. The risk here is that the petition binds the condemnor on this point.
Trunkline Gas Co. v. O’Bryan, 21 Ill.2d 95, 171 N.E.2d 45 (1960).
6. [2.56] Statement of Necessity
The petition must allege that the taking is necessary for the public use intended. It is not
required that the allegation be supported by such facts as would be required to make a prima facie
case (Department of Public Works & Buildings v. Lewis, 411 Ill. 242, 103 N.E.2d 595 (1952)),
but the courts reserve the right to question necessity when challenged (Deerfield Park District v.
Progress Development Corp., 22 Ill.2d 132, 174 N.E.2d 850 (1961); Forest Preserve District of
DuPage County v. Illinois Commerce Commission, 12 Ill.2d 319, 146 N.E.2d 27 (1957)
(determination of necessity was questioned by Commerce Commission when permission of
Commission was required before property under its jurisdiction could be condemned)).
In a quick-take proceeding, the condemning body must establish, as a preliminary matter, the
right and necessity to exercise eminent domain, just as in an ordinary condemnation action.
Pursuant to 735 ILCS 30/20-5-5(b), the condemning body must allege the necessity for the
taking. The court must determine as a threshold matter “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 that
right, and that the right of eminent domain is not being improperly exercised in the particular
proceeding.” 735 ILCS 30/20-5-10(b). Quick-take does not involve a stricter standard of
necessity than an ordinary eminent domain action. In City of Chicago v. First Bank of Oak Park,
178 Ill.App.3d 321, 533 N.E.2d 424, 427, 127 Ill.Dec. 552 (1st Dist. 1988), the court noted that
there were no differences between the two proceedings in this respect:
[O]ther than the burden upon the condemnor of showing immediate need for the
property sought, there is no stricter standard applicable in a quick-take proceeding.
The First District Appellate Court’s holding in First Bank of Oak Park was approved by the
Illinois Supreme Court in Department of Transportation v. First Galesburg National Bank &
Trust Co., 141 Ill.2d 462, 566 N.E.2d 254, 152 Ill.Dec. 567 (1990).
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§2.57
ILLINOIS EMINENT DOMAIN PRACTICE
It is essential that the complaint allege all of the elements necessary to establish the
condemnor’s right to acquire the property. If it does, it will obviate the need to present evidence
on the issue of the right to acquire. The government may be required to present a prima facie
showing of reasonable public necessity only if the property owner files a traverse. City of
Chicago v. American National Bank & Trust Company of Chicago, 146 Ill.App.3d 784, 497
N.E.2d 413, 100 Ill.Dec. 435 (1st Dist. 1986). The well-pleaded allegations of necessity are
conclusive and may not be challenged in the same proceeding absent a traverse.
At the same time, if a traverse (motion to dismiss) is filed, some objections may be cured
later. It is clearly the safer course for both the condemnation complaint and the governing body of
the condemnor by law to describe specifically the purpose and necessity for the acquisition.
Nevertheless, the absence of a legislative finding of necessity would not be fatal if it is otherwise
unequivocally established by the evidence in the record that the property is necessary for a public
purpose. People ex rel. Director of Finance v. Young Women’s Christian Association of
Springfield, 86 Ill.2d 219, 427 N.E.2d 70, 55 Ill.Dec. 950 (1981); State of Illinois Medical Center
Commission v. United Church of Medical Center, 142 Ill.App.3d 498, 491 N.E.2d 1327, 96
Ill.Dec. 867 (1st Dist. 1986). Thus, insufficient legislative findings may sometimes be cured in an
evidentiary hearing on the owner’s traverse.
7. [2.57] Necessity — Replacement Property
It seems settled that for certain purposes, the authority to condemn includes the power to
condemn replacement property. “Replacement property” is property not related to the project for
which the power is exercised but acquired to replace land condemned for a project. The necessity
for replacement often occurs in highway projects and is specifically authorized. See §4-509 of the
Illinois Highway Code, 605 ILCS 5/4-509, authorizing the replacement of public property taken
for a project. Thus, if a school must be acquired for a highway, the Illinois Department of
Transportation is authorized to condemn other lands for use as a replacement school. Similarly,
IDOT may condemn a conservation easement for another agency (e.g., the Illinois Department of
Natural Resources) to replace a nature reserve taken for a highway. Department of Transportation
of State of Illinois v. Callender Construction Co., 305 Ill.App.3d 396, 711 N.E.2d 1199, 238
Ill.Dec. 538 (4th Dist. 1999). It is not certain whether the same authority exists to condemn
replacement property for the use of a private party, outside of special statutory authority. For
example, §4-511 of the Illinois Highway Code, 605 ILCS 5/4-511, permits the acquisition of land
to replace such buildings as factories taken for a highway, provided that the replacement is within
one mile. Similar authority exists in the Metropolitan Pier and Exposition Authority Act, 70 ILCS
210/1, et seq., and the O’Hare Modernization Act, 620 ILCS 65/1, et seq. (see 70 ILCS 210/2;
620 ILCS 65/15), but it is questionable whether the authority to condemn private property to
replace other private property is valid. In Southwestern Illinois Development Authority v.
National City Environmental, L.L.C., 199 Ill.2d 225, 768 N.E.2d 1, 263 Ill.Dec. 241 (2002), the
Illinois Supreme Court found that the condemnation of land from one person for development by
another (private) person is not a public use and therefore violated the Fifth Amendment. Perhaps
this principle will not apply when the condemnation supports an acquisition for a governmental
use such as a highway, a convention center, or an airport.
In City of Chicago v. Midland Smelting Co., 385 Ill.App.3d 945, 896 N.E.2d 364, 324 Ill.Dec.
578 (1st Dist. 2008), the appellate court approved the concept of replacement or substitute
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INITIAL PROCEDURES AND PLEADINGS OF THE STATE AND OTHER CONDEMNING BODIES
§2.59
condemnation. It approved the city’s acquisition of the owner’s property to convey it to another
person to replace property that the city had condemned in an earlier proceeding, noting Illinois
precedent for the practice. The court also distinguished Southwestern Illinois Development
Authority, supra, on the ground that the city’s acquisition was for the benefit of the public.
8. [2.58] Failure To Agree on Compensation
Failure to agree on compensation is jurisdictional; failure to agree through negotiation is a
prerequisite to maintaining an eminent domain action in Illinois. 735 ILCS 30/10-5-10(a). The
complaint should allege that the condemnor has attempted to agree as to compensation but has
been unsuccessful.
9. [2.59] Description of Property Sought
The description of the property to be taken must not leave doubt as to the boundaries or the
nature and extent of the interest taken; a verdict based on an uncertain description may be held
void. Central Illinois Public Service Co. v. Rider, 12 Ill.2d 326, 146 N.E.2d 48 (1957). While the
landowner is to raise any objection to the legal description (Chicago, O. & P. Ry. v. Rausch, 245
Ill. 477, 92 N.E. 300 (1910)) and cannot raise such an objection for the first time on appeal
(Forest Preserve District of Cook County v. Lehmann Estate, Inc., 388 Ill. 416, 58 N.E.2d 538
(1944)), the burden rests on the condemnor, for if the land is not described, it is not condemned.
Therefore, the legal description should be reviewed with the surveyor or plan engineer before
preparing the complaint. Numerous parcels may be included in a single complaint for
condemnation.
It perhaps goes without saying that the property described in the complaint must lie within the
area authorized for acquisition. In City of Marseilles v. Radke, 287 Ill.App.3d 757, 679 N.E.2d
125, 223 Ill.Dec. 181 (3d Dist. 1997), the property sought to be condemned was neither alleged in
the complaint nor proved at trial to be within the tax increment financing district for which it was
being acquired. Since there was no authority to acquire property outside the boundaries of the TIF
district, the appellate court held that there was no jurisdiction for the condemnation; therefore, a
consent condemnation judgment could be vacated.
However, in Village of Round Lake v. Amann, 311 Ill.App.3d 705, 725 N.E.2d 35, 244
Ill.Dec. 240 (2d Dist. 2000), the court held that a description is not inaccurate if it is less than the
fee (such as a public right-of-way) or if it reserves certain interests.
An erroneous legal description may not be corrected after the complaint is filed. In Forest
Preserve District of DuPage County v. Miller, 339 Ill.App.3d 244, 789 N.E.2d 916, 273 Ill.Dec.
742 (2d Dist. 2003), the forest preserve district enacted an ordinance to acquire the Rodenburg
Marsh. The ordinance contained both a metes and bounds description and a plat map. Although
the metes and bounds description described the marsh, the plat map omitted a portion of the
marsh. The court held that the ordinance could not authorize the taking of the marsh because of
the discrepancy between the two legal descriptions.
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§2.60
ILLINOIS EMINENT DOMAIN PRACTICE
After the complaint to condemn was filed, the forest preserve district discovered the error and
passed a new ordinance fully describing the area to be acquired. The court held that the new
ordinance was ineffective because the complaint had no proper condemnation authority when it
was filed, and the subsequent ordinance correction could not cure the error.
10. [2.60] Description of Interest Sought
The interest taken — whether fee simple or a lesser estate — must be specified. In most
cases, the condemning body will be seeking a fee interest. Frequently, however the condemnation
will be for a lesser interest, such as a construction easement, an easement for a transmission line,
or the extinguishment of access rights. In any condemnation, the petition should clearly set forth
the exact estate or interest to be acquired. Again, the condemnor will be bound by the allegation
in the complaint, and the landowner is not required to make the determination. Department of
Public Works & Buildings v. Finks, 10 Ill.2d 20, 139 N.E.2d 242 (1956).
11. [2.61] Jury Demand
To avoid having to make a separate demand (and to prevent forgetting to make the demand
entirely), a demand for trial by jury may be included in the complaint for condemnation.
12. [2.62] Prayer for Relief
As the sole issue to be determined in an eminent domain trial is the compensation to be paid
for the land or interests taken, the complaint must include a prayer to the court “to cause the
compensation to be paid to the owner to be assessed.” 735 ILCS 30/10-5-10(a). This requirement
is statutory. In addition, the prayer may ask the court to retain jurisdiction following payment of
the judgment to award possession to the condemnor or to apportion the award among interested
parties.
C. [2.63] Summons
The standard summons form should not be used. While 735 ILCS 30/10-5-25 provides that
“[s]ervice of summons and publication of notice shall be made as in other civil cases,” because of
the nature of eminent domain, the form of summons provided by Supreme Court Rule 101(d)
should be modified. The following is a suggested form of modification:
You are summoned and required to file an answer to the complaint in this case, a copy
of which is hereto attached, or otherwise file your appearance, in the office of the clerk of
this court within 30 days after service of this summons, not counting the day of service. If
you fail to do so, a judgment by default may be entered against you for the relief asked in
the complaint.
PRACTICE POINTER

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Modification of the usual civil case summons is necessary because answers are
considered an improper pleading in eminent domain. Even though an answer may contain
jurisdictional challenges or raise other issues such as damages to the remainder, it is
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INITIAL PROCEDURES AND PLEADINGS OF THE STATE AND OTHER CONDEMNING BODIES
§2.67
properly stricken on motion of the condemnor. Department of Public Works & Buildings
v. Lewis, 344 Ill. 253, 176 N.E. 345 (1931). The proper form of summons will contain no
reference to an answer and will merely require the landowner or interested party to
appear.
D. [2.64] Service by Publication
Unknown owners and parties who cannot be served by summons may be made parties by
publication as in other cases (with the same exceptions as to form as for the summons itself).
Sample forms of an affidavit for publication and an affidavit as to unknown owners are set forth
in §§2.78 and 2.79 below, respectively.
E. [2.65] Service of Summons; Special Process Servers
Not only is it essential to name all interested parties in the complaint; it is also essential to
ensure that each is properly served. Named but unserved parties will not be bound by any
judgment establishing compensation, and neither can their possession of the property be
terminated.
PRACTICE POINTER

The attorney must check the sheriff’s return of service to ensure that the named parties
have been served and have been properly served in accordance with statute. Unsuccessful
service should be cured by obtaining and serving an alias summons. In stubborn cases, a
private investigator may be appointed as a special process server to ensure that service is
made.
F. [2.66] Excusing Service of Complaint for Condemnation
S.Ct. Rule 104(c) provides that, for good cause shown, a court may excuse the service of the
pleadings with the summons. In cases in which a great number of parcels are combined in a single
complaint, the burden of serving copies of the complaint may be avoided by ex parte application
to the court pursuant to Rule 104(c).
G. [2.67] Motions for Appointment of Guardians ad Litem
Practice regarding guardians ad litem is similar to other civil cases and is provided for in 735
ILCS 30/10-5-10(b), when there may be a person “not in being” or under disability who may
have an interest in the property to be acquired. When the title search raises the possibility of the
need for a guardian, the motion should be prepared for filing with the petition.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
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§2.68
ILLINOIS EMINENT DOMAIN PRACTICE
H. [2.68] Lis Pendens Notice
Under 735 ILCS 5/2-1901, a condemnation suit
shall, from the time of the filing in the office of the recorder in the county where the
real estate is located, of a notice signed by any party to the action or his attorney of
record or attorney in fact, on his or her behalf, setting forth the title of the action,
the parties to it, the court where it was brought and a description of the real estate,
be constructive notice to every person subsequently acquiring an interest in or a lien
on the property affected thereby, and every such person and every person acquiring
an interest or lien as above stated, not in possession of the property and whose
interest or lien is not shown of record at the time of filing such notice, shall, for the
purposes of this Section, be deemed a subsequent purchaser and shall be bound by
the proceedings to the same extent and in the same manner as if he or she were a
party thereto. If in any such action plaintiff or petitioner neglects or fails for the
period of 6 months after the filing of the complaint or petition to cause notice to be
given the defendant or defendants, either by service of summons or publication as
required by law, then such notice shall cease to be such constructive notice until
service of summons or publication as required by law is had.
A sample form of a lis pendens notice is found in §2.77 below. The lis pendens warns subsequent
purchasers about the pending action.
Under the Clerks of Courts Act, 705 ILCS 105/0.01, et seq., filing fees are waived for circuit
court filings by a local government or school district. 705 ILCS 105/27.2a(dd)(2).
I. [2.69] Amendments to the Complaint for Condemnation
In Department of Transportation of State of Illinois v. LaSalle National Bank, 102 Ill.App.3d
1093, 430 N.E.2d 286, 58 Ill.Dec. 344 (2d Dist. 1981), the Illinois Department of
Transportation’s initial petition sought to acquire 21 acres of a 274-acre tract plus the access
rights to the remaining 253 acres. Two years later, after the owner had constructed an $80 million
hotel and office facility on the 253 acres, IDOT amended the petition to condemn, deleting the
access rights from the property to be acquired. The owner’s counsel claimed that the deletion of
the request for the access rights was “tantamount to the filing of a new petition” that entitled the
owner to attorneys’ fees and defense costs as well as a two-year advancement of the valuation
date. 430 N.E.2d at 290. The court ruled that the mere deletion of access rights, without any
addition or substitution of property, does not equal the filing of a new petition and does not,
therefore, require a new valuation date. See also City of Crystal Lake v. LaSalle Nat’l Bank, 121
Ill.App.3d 346, 459 N.E.2d 643, 648, 76 Ill.Dec. 728 (2d Dist. 1984), in which the condemnor
amended its original petition by reducing the take from 236 acres to 27 acres with easements over
the remaining 209 acres.
J. [2.70] Abandonment — Condemnor’s Dismissal of the Complaint
The condemnor may abandon the proceedings at any time, even after entry of the judgment,
until possession is taken or the award is paid. In these cases, the landowner is entitled to
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§2.70
reasonable attorneys’ fees and costs. 735 ILCS 30/10-5-70(a). The abandonment or dismissal of
the case prior to the entry of a final judgment does not bar a subsequent attempt to acquire the
same property provided that the abandonment or dismissal was in good faith. It would appear
from the cases on this point that the courts will examine the question of good faith. Abandonment
is a decision that must be carefully weighed due to its severe consequences.
PRACTICE POINTERS

When quick-take is exercised, the improvement may have been demolished for a public
works project or conveyed to a developer who changed it from its original condition.
Courts may deem that a jury’s view of the premises may be prejudicial if the condition at
the date of its view does not correspond to its condition on the valuation date. See, e.g.,
Illinois State Toll Highway Authority v. Grand Mandarin Restaurant, Inc., 189 Ill.App.3d
355, 544 N.E.2d 1145, 136 Ill.Dec. 370 (2d Dist. 1989).

In order to demonstrate the condition of the premises at the valuation date, the
condemnor’s attorney should arrange to have the property photographed or videotaped at
the time the complaint is filed or as soon thereafter as possible. The photos or video may
demonstrate to the jury the appearance of the property, even if the improvement has long
since been demolished. Obtaining this evidence will require the cooperation of the
property owner and tenants. In difficult cases, however, application may be made to the
court to permit the preservation of this evidence.
Abandonment is permitted even after deposit of the award of the amount of just compensation.
Unlike ordinary judgments, a judgment or a verdict in condemnation need not be paid. See §2.21
above.
Abandonment may occur even after the award is paid if the condemnor has not yet taken
possession of the property. In City of Chicago v. Harris Trust & Savings Bank, 346 Ill.App.3d
609, 804 N.E.2d 724, 281 Ill.Dec. 759 (1st Dist. 2004), the City of Chicago acquired the fee
interest in a downtown property, and a separate judgment for just compensation was determined
for the leasehold interest for a billboard. After depositing the just compensation award for the
billboard, the city realized that the billboard lease would have expired by its own terms. The city
had not taken possession of the billboard but permitted it to remain for an interim period. Since
the city had not yet taken possession of the billboard, it was permitted to abandon taking, despite
having deposited the amount of just compensation.
The court noted the express terms of the abandonment statute (now 735 ILCS 30/20-5-40):
“[A]fter the plaintiff has taken possession of the property pursuant to the order of taking, the
plaintiff shall have no right to dismiss the complaint or to abandon the proceeding.” [Emphasis
added.] 804 N.E.2d at 730, quoting 735 ILCS 5/7-110 (2002). Since the statute speaks of
possession as terminating the right to abandon, the court held that it made no difference that the
city had deposited the award, as long as it had not yet taken possession of the property.
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§2.71
ILLINOIS EMINENT DOMAIN PRACTICE
K. [2.71] Immediate Right of Entry by Necessity
In an extraordinary decision, the Fourth District Appellate Court held that a condemnor could
be granted an immediate right of entry by showing compelling need, even before just
compensation is determined and paid to the owner. Enbridge Pipelines (Illinois), L.L.C. v. Troyer,
2015 IL App (4th) 150334, 38 N.E.3d 1282, 395 Ill.Dec. 526. In that case, the pipeline companycondemnor had been authorized by the Illinois Commerce Commission to exercise eminent
domain power to acquire easements to install a subterranean pipeline. The company was unable
to agree with the landowners as to just compensation and filed a condemnation complaint. The
landowners refused to give the company permission to enter their premises to begin installation of
the pipeline. The company then requested the court to enjoin the landowners from interfering
with the company’s entering the land to install the pipeline. The company claimed that to await a
determination of just compensation would delay the pipeline and increase construction cost. It
offered to deposit with the court an amount equal to the landowners’ compensation demand.
Pipeline companies do not have quick-take powers. Nevertheless, the appellate court affirmed
the trial court’s grant of immediate entry, evaluating the pipeline company’s claim by the
standards for issuing a temporary restraining order. The appellate court found the allegations of
irreparable harm sufficient to justify the injunction. In addition, it noted that money deposited
with the court, together with a bond, assured that just compensation would be paid.
There is no indication that the compensation award would be available to the landowners
until the conclusion of the condemnation case, long after the pipeline company entered their
property. Query whether this is inconsistent with Kirby Forest Industries, Inc. v. United States,
467 U.S. 1, 81 L.Ed.2d 1, 104 S.Ct. 2187, 2195 (1984) (“owner is protected by the rule that title
does not pass until compensation has been ascertained and paid”), and Forest Preserve District of
DuPage County v. First National Bank of Franklin Park, 2011 IL 110759, 961 N.E.2d 775, 356
Ill.Dec. 386, which requires that just compensation be determined and paid before the condemnor
takes possession of an owner’s land.
IV. APPENDIX
A. [2.72] Additional Authorities
For further information on the topic of this chapter, see Frank S. Righeimer, Jr., EMINENT
DOMAIN IN ILLINOIS (3d ed. 1986) (an excellent reference but now somewhat dated,
particularly because it predates the Eminent Domain Act); Julius L. Sackman et al., NICHOLS’
THE LAW OF EMINENT DOMAIN (rev. 3d ed.) (multivolume set, year varies by volume); and
Thomas F. Geselbracht et al., ILLINOIS ZONING, EMINENT DOMAIN, AND LAND USE
MANUAL (1997).
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INITIAL PROCEDURES AND PLEADINGS OF THE STATE AND OTHER CONDEMNING BODIES
§2.73
B. Sample Forms
1. [2.73] First-Contact Letter
[letterhead of state agency]
[date]
[name and address of recipient]
Dear [name of recipient]:
Public records indicate that you own or have an interest in the following property:
[legal description] [common address] [PIN]
Please be advised that the Illinois Department of [name of department] seeks to acquire
the above-described property in [fee simple or other interest]. The purpose of the proposed
acquisition is to furnish a site for [project description]. The type of facility to be constructed
on the property is [type of facility].
If you have any questions concerning this acquisition, please contact [contact name] at
[contact information]. Please be advised that the person designated above shall respond to
the property owner’s questions about the authority and procedures of the [name of entity] in
acquiring property by condemnation and about the property owner’s general rights under
those procedures. However, the designated person is unable to provide property owners
with specific legal advice or specific legal referrals.
Very truly yours,
_____________________________________
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§2.74
ILLINOIS EMINENT DOMAIN PRACTICE
2. [2.74] Sixty-Day Notice Letter
[letterhead of state agency]
[date]
Certified Mail No. ________
Return Receipt Requested
[name and address of recipient]
Dear [name of recipient]:
The public records indicate that you are the owner of or have an interest in the
following described property:
Parcel [parcel number]
[legal description]
[common address, if applicable]
[interest to be acquired]
The Illinois Department of [name of department] has ordered and directed that the
above-described property be acquired for [reason for acquisition] purposes.
The Illinois Department of [name of department] hereby offers the sum of $__________
for the interest in the above-described property free and clear of all claims of other parties,
liens, taxes, and encumbrances.
The compensation hereby offered has been established pursuant to appraisals
conducted by independent appraisers. The appraisers considered the size, shape, location,
topography, and zoning of the subject property. The appraisers also considered one or more
of the following measures of value: recent sales of comparable properties; reproduction or
replacement cost, less depreciation; and the income generated by the subject property.
If you wish to discuss this offer, please make an appointment with the undersigned for
that purpose at the above address. We will continue to seek a negotiated agreement for a
period of 60 days. Unless we hear from you or your attorney, we shall assume that you have
rejected this offer. If we are unable to reach an agreement after 60 days, we will file a court
proceeding to acquire the property pursuant to the Illinois Eminent Domain Act.
Very truly yours,
______________________________________
By: __________________________________
Attorney for Condemnor
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INITIAL PROCEDURES AND PLEADINGS OF THE STATE AND OTHER CONDEMNING BODIES
§2.75
3. [2.75] Letter To Request Inspection
[letterhead of municipality]
[name and address of recipient]
Re: Property Location:
PIN Numbers:
Legal Description:
Dear [name of recipient]:
Public records indicate that you are the owner of the property referred to above.
The subject property is located at [location]. In furtherance of the village’s
redevelopment plan for this area, the village has recently sought proposals from developers.
The plans of the village call for the eventual acquisition of property within the development
area.
In order to begin the development process, the village will be appointing appraisers to
provide expert valuations of the subject property.
For the appraisers to value your property accurately, it will be necessary for them to
conduct an interior inspection and obtain helpful information from the owner. We would
appreciate the opportunity to obtain a mutually convenient date so that you can accompany
our appraiser on such an inspection. Naturally, you, your appraiser, and your attorney may
be present during such an inspection.
Our attorneys, [name of attorneys], will be representing the village in the development
process. Kindly get in touch with the attorneys listed below in order to arrange an appraisal
inspection.
Please contact: [attorney information]
Very truly yours,
______________________________________
Village Manager
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§2.76
ILLINOIS EMINENT DOMAIN PRACTICE
4. [2.76] Complaint for Condemnation
IN THE CIRCUIT COURT OF
[name of county] COUNTY, ILLINOIS
[COUNTY DEPARTMENT, LAW DIVISION]
DEPARTMENT OF TRANSPORTATION, )
STATE of Illinois,
)
)
Plaintiff,
)
)
v.
)
)
[name of defendants];
)
and UNKNOWN OWNERS,
)
)
Defendants.
)
No. ________
Parcel No. ________
COMPLAINT FOR CONDEMNATION
THE DEPARTMENT OF [name of department] OF THE STATE OF ILLINOIS,
Plaintiff herein, by [name of Attorney General], Attorney General of the State of Illinois, and
[name of Special Assistant Attorney General], Special Assistant Attorney General, respectfully
states:
1. Plaintiff, Department of [name of department], State of Illinois, is a Department of
the State government of the State of Illinois, as created and provided for in an Act known as
the Civil Administrative Code of Illinois.
2. Under and by virtue of Article 2 and Article 4, Division 5, of the Illinois Highway
Code, 605 ILCS 5/2-101 through 5/2-220 and 605 ILCS 5/4-501 through 5/4-512, and all
other applicable provisions of the Illinois Highway Code, and §5-5-5(b) and other provisions
of the Eminent Domain Act, plaintiff is engaged in the relocating, reconstructing, extending,
widening, straightening, improving, repairing, and maintaining of the roadway known as
[name of roadway] in [name of county] County, a highway under the control and jurisdiction
of plaintiff; and for such purposes, and the providing of natural deposits and road materials
therefor, that highway has been surveyed, laid out, and projected over certain lands and
premises situated in [name of county] County, Illinois; and those lands and premises, which
are the subject of this complaint, are in Section [number of section], which is concerned with
widening and improving the existing roadway in [name of county] County, Illinois.
3. The land, rights, or other property hereinafter described is private property, and
the persons hereinafter mentioned in connection therewith are, as far as appears of record,
and as far as plaintiff has been able to learn, the persons who own or otherwise are
interested in them or claim to have some interest therein.
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§2.76
4. The work and improvement described above is a public work, is for public use, and
constitutes a public purpose, namely, a public highway; and it is necessary that plaintiff
have and acquire for the use of the people of the State of Illinois for highway purposes the
land, rights, or other property hereinafter described.
5. Plaintiff, under the provisions of §4-501 of the Illinois Highway Code (referred to
above), is authorized to acquire for the purposes aforesaid the fee-simple title, or such lesser
interest as may be desired, to the lands, rights, or other property hereinafter described.
6. The compensation to be paid by plaintiff for or in respect to each tract of property
sought to be appropriated or damaged for the above-mentioned purposes cannot be agreed
on between plaintiff and the parties interested therein although plaintiff has attempted to
effect such an agreement; and plaintiff, therefore, is authorized to proceed to acquire said
lands, rights, or other property through the exercise of the right of eminent domain under
the eminent domain laws of this State.
7. Plaintiff now seeks to acquire under the Eminent Domain Act, for the uses and
purposes described above, the fee-simple title to the real property in [name of county]
County, Illinois, hereinafter described in numbered parcel [parcel number]. The names of all
persons interested in each numbered parcel as owners or otherwise, as appearing of record,
or as far as is known to plaintiff, all of whom are hereby made parties defendant to this
complaint, are as follows:
Parcel [parcel number]
[That part of the Southeast quarter of Section 12, Township 42 North, Range 10 East of
the Third Principal Meridian, in (name of county) County, Illinois, described as follows]:
[legal description]
Interest Sought: Fee Simple
Owner of Record:
[Name of financial institution], as Trustee under Trust Agreement dated [date],
known as Trust Number [trust number].
Parties Otherwise Interested:
[Name of mortgagee], as mortgagee under mortgage dated [date of mortgage], and
recorded [date of recording], as doc. No. [doc. number].
Unknown Owners
8. In addition to persons designated by name herein, there are other persons who are
interested in this action and who have or claim some right, title, interest, or lien in, to, or on
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§2.76
ILLINOIS EMINENT DOMAIN PRACTICE
the real estate, or some parts thereof, described in this petition, and the name of each of
those other persons is unknown, and all such persons are, therefore, made parties defendant
to this action by the name and description of Unknown Owners.
9. In addition to persons designated by name herein, there are or may be other persons
occupying or in possession of a portion of the building or structures on the real property
described, and the name of each of those other persons is unknown, and all such persons
are, therefore, made parties defendant to this action by the name and description of
Unknown Owners.
WHEREFORE, your plaintiff prays that the usual process of summons be issued
against each and all of the above-described defendants according to law, commanding them
to be and appear before this court on the return day of the summons, and that due notice
according to the law may be given to the owners of and parties interested in and to the
Unknown Owners of the real property described above. Your plaintiff further prays the
Court to cause compensation to be ascertained and determined according to the statute for
the fee-simple title to the property sought to be acquired and to take such proceedings and
enter such orders as necessary, ordering that plaintiff enter on the property and use it upon
payment of full compensation to the parties entitled thereto, or to the County Treasurer,
within such reasonable time as is fixed by the Court and that the Court retain jurisdiction
of this cause to enter such further orders as may be necessary, including such orders as may
be necessary to put plaintiff into possession of the subject property.
PLAINTIFF DEMANDS TRIAL BY JURY.
DEPARTMENT OF TRANSPORTATION,
STATE OF ILLINOIS
______________________________________
Governor of the State of Illinois
______________________________________
Secretary of the Department of
Transportation
______________________________________
Attorney General of the State of Illinois
_______________________________________
Special Assistant Attorney General
[attorney information]
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§2.78
5. [2.77] Lis Pendens Notice
[Caption]
LIS PENDENS NOTICE
I, the undersigned, do hereby certify that the above-entitled cause was filed in the above
Court on the [day] of [date], for [Condemnation] and is now pending in said Court and that
the property affected by that cause is described as follows:
[legal description]
[party names]
[interest to be acquired]
Signature:
(Check one)
__________________________________________  Party to said Cause
__________________________________________  Attorney of Record
[Type or print name for clarification.]
__________________________________________
[address]
Mail to:
Name: ___________________________________
Address: _________________________________
OR
Deposit in Box No. ______________________________________
Recorder’s Office
6. [2.78] Affidavit for Publication
[Caption]
AFFIDAVIT FOR PUBLICATION
[Name of attorney], attorney for the plaintiff in the above-entitled cause, being first duly
sworn, states that the defendants in this cause herein named reside or have gone out of
state, on due inquiry cannot be found, or are concealed within this state so that process
cannot be served on them; that upon diligent inquiry their places of residence cannot be
ascertained; and that their last known places of residence are as herein shown:
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§2.79
ILLINOIS EMINENT DOMAIN PRACTICE
Parcel [parcel number]
Name:
Last Known Place of Residence:
Owners and holders of indebtedness
secured by trust deed.
Unknown
Unknown Others
Unknown
FURTHER affiant saith not.
______________________________________
SUBSCRIBED AND SWORN
to before me this [date].
____________________________________
Notary Public
[expiration date]
Expiration Date
7. [2.79] Affidavit as to Unknown Owners
[Caption]
AFFIDAVIT AS TO UNKNOWN OWNERS
[Name of attorney], attorney for the plaintiff in the above-entitled action and the duly
authorized agent of the plaintiff in its behalf, being first duly sworn, on oath deposes and
states that there are persons who are interested in this action whose names are unknown,
and all such persons are made parties defendant to this action by the name and description
of “Unknown Owners.”
Affiant further states that upon due and diligent inquiry it cannot be ascertained
whether the persons whose names are set forth in the complaint filed herein as persons
interested as owners or otherwise are living or dead and that the names of such persons who
would be their heirs or devisees are unknown, and all such persons are made parties
defendant to this action by the name and description of “Unknown Owners.”
Affiant further states that there are persons who are or may be interested in this action
as the heirs or devisees of certain deceased persons and that the names of such persons are
unknown. Therefore, all such persons are made parties defendant to this action by the name
and description of “Unknown Owners.”
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INITIAL PROCEDURES AND PLEADINGS OF THE STATE AND OTHER CONDEMNING BODIES
§2.80
FURTHER affiant saith not.
______________________________________
SUBSCRIBED AND SWORN
to before me this [date].
____________________________________
Notary Public
[expiration date]
Expiration Date
8. [2.80] Letter of Final Good-Faith Offer
[date]
Certified Mail No. ________
Return Receipt Requested
[name and address of recipient]
Dear [name of recipient]:
The public records indicate that you are the owner of or have an interest in the
following described property:
Parcel [parcel number]
[legal description]
[common address, if applicable]
[Condemnor] has ordered and directed that this property be acquired for [reason for
acquisition] purposes.
[Condemnor] hereby offers you the sum of $__________ for the above-described
property, free and clear of all claims of other parties, liens, taxes, and encumbrances.
If you wish to discuss this offer, please make an appointment with the undersigned for
that purpose at the above address. Unless we hear from you or your attorney within ten
days from the date of this letter, we shall assume you have rejected the offer, and
condemnation proceedings to acquire the property will be instituted by [condemnor].
Very truly yours,
______________________________________
By: __________________________________
Attorney for Condemnor
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
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3
Pleadings and Procedures
by the Condemnee
B. JAY DOWLING
Clayborne, Sabo & Wagner LLP
Belleville
®
IICLE gratefully acknowledges the contributions of Harry J. Sterling to previous
editions of this chapter.
®
©COPYRIGHT 2016 BY IICLE .
3—1
ILLINOIS EMINENT DOMAIN PRACTICE
I. [3.1] Scope of Chapter
II. [3.2] Initial Considerations
III. [3.3] Early Discovery
IV. Traverse and Motion To Dismiss
A. [3.4] Purpose
B. [3.5] Time of Filing
C. [3.6] Grounds
1. [3.7] Necessity
2. [3.8] Public Purpose
3. [3.9] Bona Fide Attempt To Agree
4. [3.10] Condemnor’s Authority
5. [3.11] Property Subject to Condemnation
6. [3.12] Proper Description
D. [3.13] When Traverse Does Not Lie
E. [3.14] Trial of a Traverse
F. [3.15] If the Traverse Is Denied
G. [3.16] If the Traverse Is Granted
V. [3.17] Counterclaim
VI. [3.18] Right To Open and Close
VII. [3.19] View of Premises
VIII. [3.20] Later Motions
IX. [3.21] Significant Decisions
X. [3.22] Final Concerns
XI. Appendix — Forms
A.
B.
C.
D.
E.
3—2
[3.23]
[3.24]
[3.25]
[3.26]
[3.27]
Motion for Production of Witnesses, Documents, Etc.
Traverse and Motion To Dismiss
Counterclaim
Motion To Open and Close
Motion for View of Premises
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PLEADINGS AND PROCEDURES BY THE CONDEMNEE
§3.2
I. [3.1] SCOPE OF CHAPTER
Much has been written with respect to the appropriate steps for the condemnor in eminent
domain actions, with a lesser emphasis on steps the condemnee can or should take. This chapter
provides a thumbnail sketch of the courses of action that are available to a condemnee. It should
be emphasized to the individual who has never handled a condemnation case that such a case is
different from others. The procedures and rules of evidence are different. A wise attorney once
explained to an eager novice that the only way to adequately prepare any case was to do so from a
360-degree perspective. This includes asking, “What will the other side do? What would you do
if you were on the other side?”
II. [3.2] INITIAL CONSIDERATIONS
Eminent domain proceedings are governed by the provisions of the Eminent Domain Act
(EDA), 735 ILCS 30/1-1-1, et seq.
At the outset of the initial consultation with the client, the lawyer should determine what the
client wants by asking the following questions:
•
Does the client want to oppose the project? Is there a valid basis to oppose the project? Is
the basis to oppose the project procedural or substantive? Is the project for a “public
purpose” and for a “public use”? Will the opposition to the project change the ultimate
outcome or merely delay the inevitable condemnation? Is the opposition to the project a
waste of the client’s money? Is the only issue “just compensation” (money)?
•
Is there a question about the size of the property to be taken?
•
Where is the property located?
•
What is the “highest and best use” of the property? Are there questions of access?
•
Are there questions of drainage, noise, etc.?
•
Are there questions about the remaining property and damages to the remainder?
•
Are there other factors to which consideration should be given?
Once these initial questions are answered, the attorney can determine the correct steps to follow.
If the client has already been served with process, a careful review of the complaint is the
next step. The complaint should be compared with 735 ILCS 30/10-5-10 to verify that it contains
all of the necessary elements. Further, the attorney should consider whether the complaint
satisfies the standards set forth in 735 ILCS 30/20-5-10. If not, a traverse and motion to dismiss
should be filed. See §§3.4 – 3.16 below. The legal description also should be checked to verify
exactly what property and what rights (i.e., fee simple, a permanent or temporary easement,
access, etc.) are to be taken. Village of Round Lake v. Amann, 311 Ill.App.3d 705, 725 N.E.2d 35,
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244 Ill.Dec. 240 (2d Dist. 2000); Forest Preserve District of DuPage County v. Miller, 339
Ill.App.3d 244, 789 N.E.2d 916, 273 Ill.Dec. 742 (2d Dist. 2003); Illinois State Toll Highway
Authority v. Chicago Title & Trust Co., 37 Ill.App.3d 355, 345 N.E.2d 516 (2d Dist. 1976); Lake
County Forest Preserve v. Frecska, 85 Ill.App.3d 610, 407 N.E.2d 137, 40 Ill.Dec. 906 (2d Dist.
1980); Department of Transportation v. HP/Meachum Land Limited Partnership, 245 Ill.App.3d
252, 614 N.E.2d 485, 185 Ill.Dec. 351 (2d Dist. 1993); Lieberman v. Chicago & S.S.R.T.R. Co.,
141 Ill. 140, 30 N.E. 544 (1892); Forest Preserve District of Cook County v. City of Chicago, 159
Ill.App.3d 859, 513 N.E.2d 22, 111 Ill.Dec. 776 (1st Dist. 1987).
The condemnor and its attorney have the burden of proving fair market value (i.e., the
amount of money a willing buyer would pay to a willing seller/owner when neither party is
obligated to buy or sell). Forest Preserve District of DuPage County v. First National Bank of
Franklin Park, 2011 IL 110759, 961 N.E.2d 775, 356 Ill.Dec. 386; Public Building Commission
of Chicago v. Yellen, 2013 IL App (1st) 112638, 986 N.E.2d 706, 369 Ill.Dec. 393; County of St.
Clair v. Wilson, 284 Ill.App.3d 79, 672 N.E.2d 27, 28 – 29, 219 Ill.Dec. 712 (5th Dist. 1996);
Department of Transportation v. Drury Displays, Inc., 327 Ill.App.3d 881, 764 N.E.2d 166, 261
Ill.Dec. 875 (5th Dist. 2002). However, it is the job of the condemnee’s attorney to make certain
that the property owner is made whole. Department of Transportation v. Chicago Title & Trust
Co., 303 Ill.App.3d 484, 707 N.E.2d 637, 236 Ill.Dec. 510 (1st Dist. 1999). A property owner
should be, as much as monetarily possible, restored to the position he or she would have been in
had the property not been taken. Franklin Park, supra; Yellen, supra; Illinois Cities Water Co v.
City of Mt. Vernon, 11 Ill.2d 547, 144 N.E.2d 729 (1957); Meachum, supra; United States v.
Reynolds, 397 U.S. 14, 25 L.Ed.2d 12, 90 S.Ct. 803, 805 (1970). This includes compensating the
owner not only for the highest and best use of the land but also for any future use that may be
anticipated with reasonable certainty. City of Quincy, Illinois v. Diamond Construction Co., 327
Ill.App.3d 338, 762 N.E.2d 710, 261 Ill.Dec. 141 (4th Dist. 2002).
The right of eminent domain by a department of government can be exercised only when a
grant of the right is specifically conferred by legislative enactment and then only in the manner
and by the agency so empowered. City of Chicago v. St. John’s United Church of Christ, 404
Ill.App.3d 505, 935 N.E.2d 1158, 343 Ill.Dec. 930 (2d Dist. 2010); Forest Preserve District of
DuPage County v. Brown Family Trust, 323 Ill.App.3d 686, 753 N.E.2d 1110, 257 Ill.Dec. 484
(2d Dist. 2001); Department of Transportation of State of Illinois v. Callender Construction Co.,
305 Ill.App.3d 396, 711 N.E.2d 1199, 238 Ill.Dec. 538 (4th Dist. 1999); Amann, supra; City of
Batavia v. Sandberg, 286 Ill.App.3d 991, 677 N.E.2d 1010, 222 Ill.Dec. 476 (2d Dist. 1997);
Board of Trustees of University of Illinois v. Shapiro, 343 Ill.App.3d 943, 799 N.E.2d 383, 278
Ill.Dec. 665 (1st Dist. 2003); Illinois Department of Natural Resources v. Pedigo, 348 Ill.App.3d
1044, 811 N.E.2d 761, 285 Ill.Dec. 274 (4th Dist. 2004). However, if the property is not
necessary for the project, condemnation of the property is improper, regardless of what is asserted
in the enabling legislation. Village of Bensenville v. City of Chicago, 389 Ill.App.3d 446, 906
N.E.2d 556, 329 Ill.Dec. 358 (2d Dist. 2009).
III. [3.3] EARLY DISCOVERY
While the general concept of discovery is discussed in Chapter 6 of this handbook, a short
reference to this area must be made in connection with the initial steps to be taken by the
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condemnee’s attorney. In most cases, even if the landowner wants to file a traverse and motion to
dismiss, the condemnee’s attorney may not have sufficient facts to prepare for the hearing or trial
of these actions. Given the immediacy with which the condemnor may file quick-take
proceedings, if available (discussed in Chapter 4 of this handbook), the attorney for the
condemnee must immediately prepare and file requests for production and interrogatories
directed to the engineering as well as the appraisal aspects of the proposed acquisition.
A very specific request for production should be prepared, requesting copies of appraisals,
appraisal reviews, plans, engineering drawings, drainage drawings, plats, aerials, comparable
sales information, parking diagrams, etc., so that the condemnee’s attorney is in an equal position
to the condemnor’s attorney with respect to initial documentation. The condemnee’s attorney
should know that the governmental agency will have staff appraisers, independent fee appraisers,
and reviewing appraisers. All of their appraisals are discoverable under Illinois Supreme Court
Rules 214 or 201 (unless, of course, when dealing with a “consultant” (S.Ct. Rule 201(b)(3))).
Other discovery rules may also be useful. The condemnee’s attorney should also take the
deposition of “the person in charge” for other discovery leads.
Once the appraisal and engineering drawings are obtained, a careful review must be made of
this documentation to determine whether any cross-references are made to documents not
produced. For example, Illinois Department of Transportation contract appraisers generally
prepare a “sales data book” of all of the sales they may use in any series of parcels assigned to
them. The condemnee’s attorney should obtain that book so that if the appraiser uses only a few
of the comparables that have been submitted, questions may be posed as to why other
comparables that were submitted were not considered. Another example of cross-references made
in standard state appraisals is to a document titled “land economic studies.”
Land economic studies are prepared for the purpose of showing the actual damage
or benefit, occurring to the remainder of a property as the result of the acquisition
of land for a public improvement. They are used primarily by staff and fee
appraisers to assist in determining adjustments to the comparable sales used to
value the remaining property in a partial taking in connection with appraisals for
transportation projects. Illinois Department of Transportation, LAND ACQUISITION
POLICIES AND PROCEDURES MANUAL, §3.13.1 (Nov. 2015) (continually updated
resource).
These records are retained by the Illinois Department of Transportation. They are used to justify
the appraisers’ numbers on diminution in value based on the later sale.
When the condemnor is using federal funding, the condemnee may want to request and
review the documentation that the condemning authority must submit to the federal government.
For this purpose, counsel should refer to S.Ct. Rules 201 and 214 and note the holding in
Department of Transportation v. Beeson, 137 Ill.App.3d 908, 485 N.E.2d 511, 92 Ill.Dec. 700 (2d
Dist. 1985), adopting the application of Federal Rules of Evidence 703 and 705 to eminent
domain cases. See also City of Chicago v. Anthony, 136 Ill.2d 169, 554 N.E.2d 1381, 144 Ill.Dec.
93 (1990).
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Another important resource to consider is the taking of early depositions under S.Ct. Rule
202, et seq. It may be helpful to have completed depositions, particularly when pressed to an
early hearing by way of the quick-take procedure. In addition, should counsel elect to proceed
with a traverse and motion to dismiss (discussed in §§3.4 – 3.16 below), an actual trial will be
held on the issues in the complaint (except valuation); therefore, any well-prepared attorney
would have the deposition phase of the trial preparation completed in advance of that trial.
Of particular note is the fact that condemning authorities may change their plans as the
project progresses. See Department of Public Works & Buildings of State of Illinois v. Vogt, 51
Ill.App.3d 770, 366 N.E.2d 310, 9 Ill.Dec. 53 (5th Dist. 1977), in which a petition for leave to
appeal was first granted and then dismissed after oral argument. In Department of Transportation
v. Schien, 72 Ill.2d 287, 381 N.E.2d 241, 21 Ill.Dec. 163 (1978), the appellate court and the
Illinois Supreme Court affirmed the trial court’s dismissal of the condemnation complaint, even
after a quick-take hearing had been held and an order vesting title had been entered when the state
made several modifications to its construction plans requiring reappraisal. For an interesting
follow-up to Vogt, supra, see Vogt v. Bartelsmeyer, 264 Ill.App.3d 165, 636 N.E.2d 1185, 201
Ill.Dec. 753 (5th Dist. 1994).
When the condemnor seeks to acquire additional acreage, counsel may be able to argue to
change the valuation date. See Department of Transportation v. HP/Meachum Land Limited
Partnership, 245 Ill.App.3d 252, 614 N.E.2d 485, 185 Ill.Dec. 351 (2d Dist. 1993); Forest
Preserve District of DuPage County v. First National Bank of Franklin Park, 401 Ill.App.3d 966,
930 N.E.2d 477, 341 Ill.Dec. 267 (2d Dist. 2010). See also 735 ILCS 30/10-5-60.
Sometimes a sale used as a comparable sale sells again. Any adjustments made by the
appraiser might or might not prove to be correct. Be prepared.
IV. TRAVERSE AND MOTION TO DISMISS
A. [3.4] Purpose
If in the initial conference with the landowner a decision is made to challenge the eminent
domain action, the pleading designed to do this is a traverse and motion to dismiss. If the
allegations required in the complaint by 735 ILCS 30/10-5-10 are not contained therein or are
untrue, these points must be raised in this pleading — which is really a trial within a trial. See
Southwestern Illinois Development Authority v. Vollman, 235 Ill.App.3d 32, 600 N.E.2d 926, 175
Ill.Dec. 683 (5th Dist. 1992); Department of Transportation v. 151 Interstate Road Corp., 209
Ill.2d 471, 810 N.E.2d 1, 284 Ill.Dec. 348 (2004). See §3.24 below for a sample form of traverse
and motion to dismiss
In Garry v. Geils, 82 F.3d 1362 (7th Cir. 1996), the court held that the federal court lacked
jurisdiction, in an action initiated under 42 U.S.C. §1983, on a theory that the property was
chosen as an act of political retaliation. The court held that inferior federal courts do not have the
power to exercise appellate review over state court decisions.
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When a property owner contests a condemnor’s right to condemn through a traverse the
burden is on the condemnor to maintain its right to condemn by sufficient proof. Forest Preserve
District of DuPage County v. Miller, 339 Ill.App.3d 244, 789 N.E.2d 916, 273 Ill.Dec. 742 (2d
Dist. 2003); Trustees of Schools of Township No. 37 v. First National Bank of Blue Island, 49
Ill.2d 408, 274 N.E.2d 56 (1971); Board of Trustees of Southern Illinois University v. Lange, 28
Ill.2d 229, 190 N.E.2d 789 (1963); City of Evanston v. Piotrowicz, 20 Ill.2d 512, 170 N.E.2d 569
(1960); City of Benton v. Odom, 123 Ill.App.3d 991, 463 N.E.2d 785, 79 Ill.Dec. 231 (5th Dist.
1984); County of DeKalb v. Smith, 213 Ill.App.3d 775, 572 N.E.2d 379, 157 Ill.Dec. 310 (2d
Dist. 1991); City of Batavia v. Sandberg, 286 Ill.App.3d 991, 677 N.E.2d 1010, 222 Ill.Dec. 476
(2d Dist. 1997). However, once the condemnor makes a prima facie case, the burden shifts to the
property owner to produce evidence to support the allegations set forth in the traverse. Trustees of
School Township No. 37, supra. See also City of Chicago v. Boulevard Bank National Ass’n, 293
Ill.App.3d 767, 688 N.E.2d 844, 228 Ill.Dec. 146 (1st Dist. 1997), when a party challenges a
municipality’s ordinance, the party is required to overcome the ordinance’s presumptive validity
by clear and convincing evidence, which is the quantum of proof that leaves no reasonable doubt
in the mind of the fact-finder as to the truth of the proposition stated.
A condemnor must establish a prima facie case and offer some proof on the disputed
averments. Department of Public Works & Buildings v. Keller, 61 Ill.2d 320, 335 N.E.2d 443
(1975); Lake County Forest Preserve District v. First National Bank of Waukegan, 154
Ill.App.3d 45, 506 N.E.2d 424, 106 Ill.Dec. 717 (2d Dist. 1987); MCI WorldCom
Communications, Inc. v. Metra Commuter Rail Division of Regional Transportation Authority,
337 Ill.App.3d 576, 786 N.E.2d 621, 272 Ill.Dec. 82 (2d Dist. 2003). Since the issues raised are
questions of law, the determination is made by the court without a jury. The Eminent Domain Act
states the following with respect to the quick-take hearing:
[I]f 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 that right, and that the right of
eminent domain is not being improperly exercised in the particular proceeding, then
the court shall first hear and determine those matters. 735 ILCS 30/20-5-10(b).
The above statement refers to a determination by the court of those issues in the hearing on the
traverse and motion to dismiss or to a trial when no motion for immediate vesting of title has been
filed and heard. See Illinois State Highway Authority v. South Barrington Office Center, 2016 IL
App (1st) 150960-U (discussion of purpose and procedure of traverse).
If a property owner files a motion to dismiss and not a traverse or a combined motion to
dismiss and traverse, the burden of proof remains on the property owner to prove all matters
asserted in the motion. Town of Libertyville v. Connors, 185 Ill.App.3d 317, 541 N.E.2d 250, 133
Ill.Dec. 413 (2d Dist. 1989).
B. [3.5] Time of Filing
If a landowner wishes to contest the right of the condemnor to proceed with the project, it
goes without saying that the appropriate pleadings should be filed immediately. A number of
cases have questioned the timing in the filing of a traverse and motion to dismiss, so the safest
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course of action is to file it immediately. City of Chicago in Trust for Use of Schools v. Albert J.
Schorsch Realty Co., 95 Ill.App.2d 258, 238 N.E.2d 434 (1st Dist. 1968); Chicago Housing
Authority v. Berkson, 415 Ill. 159, 112 N.E.2d 620 (1953); City of Chicago v. Chicago Title &
Trust Co., 331 Ill. 322, 163 N.E. 17 (1928).
A landowner can be deemed to have waived the right to contest the right to condemn by filing
a cross-petition (now called a “counterclaim”). Chicago, N.S. & M.R. Co. v. Chicago Title &
Trust Co., 328 Ill. 610, 160 N.E. 226 (1928); Alton & S.R.R. v. Vandalia R. Co., 271 Ill. 558, 111
N.E. 531 (1916); Towne v. Town of Libertyville, 190 Ill.App.3d 563, 546 N.E.2d 810, 137 Ill.Dec.
865 (2d Dist. 1989); Forest Preserve District of Kane County v. Estes, 222 Ill.App.3d 167, 583
N.E.2d 640, 164 Ill.Dec. 724 (2d Dist. 1991).
For a novel (albeit unsuccessful) attempt to challenge a proposed taking as unconstitutional in
a separate action (later consolidated in an eminent domain case), see Kassnel v. Village of
Rosemont, 135 Ill.App.3d 361, 481 N.E.2d 849, 90 Ill.Dec. 49 (1st Dist. 1985).
C. [3.6] Grounds
Any of the allegations contained in the complaint to condemn can provide fertile ground to
challenge the complaint. Since no formal answer is required in a condemnation action
(Department of Public Works & Buildings v. Lewis, 344 Ill. 253, 176 N.E. 345 (1931)), the
correct method to put in issue the allegations in the complaint desired to be challenged is to
include them in the traverse and motion to dismiss. Some of the particular areas of challenge are
discussed in §§3.7 – 3.12 below.
1. [3.7] Necessity
In Department of Transportation of State of Illinois v. Keller, 127 Ill.App.3d 976, 469 N.E.2d
262, 82 Ill.Dec. 728 (5th Dist. 1984), the precise question of what “necessary” means was
addressed. The court stated:
The court’s remarks imply that the term “necessary,” and consequently the issue of
whether the acquisitions are “necessary,” are subject to two meanings, one of which
forms the basis of an inquiry which is properly before the court, and one of which is
not. This is another way of stating that the term “necessary,” for purposes of
condemnation proceedings, is subject to a definition other than that to which the
term is subject in common discourse. This distinction was recognized implicitly by
the [S]upreme [C]ourt of Illinois in Department of Public Works & Buildings v. Lewis
(1952), 411 Ill. 242, 245 – 46, 103 N.E.2d 595:
“The word ‘necessary’ in statutes such as the [Eminent Domain Act] ‘should
be construed to mean “expedient,” “reasonably convenient,” or “useful to
the public,” and cannot be limited to an absolute physical necessity.’ . . .
Conversely, the word ‘necessary’ does not mean ‘indispensable’. . . or ‘an
absolute necessity.’ The general rule is that, where the right of eminent
domain is granted, the necessity for its exercise, within constitutional
restrictions, is not a judicial question, and its exercise is not a proper subject
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for judicial interference or control unless to prevent a clear abuse of such
power. . . . This Court . . . in Smith v. Claussen Park and Levee Drainage
District, 229 Ill. 155, 163, 82 N.E. 278, stated, ‘If the court finds that the use
for which the property is to be taken is a public one, then the court will not
inquire into the extent to which the property is necessary for such use unless
it appears that the quantity of property taken is grossly in excess of the
amount necessary for the use.’ ”
The question of whether a public taking is “necessary,” then, may be an inquiry
directed to one of two fields of reference. It may, first, constitute an attempt to
determine the veracity of that proposition of which the petitioner is obliged to make
a prima facie showing in the first instance — i.e., that the purpose for which the land
is sought is one of public convenience, and the acquisition, reasonable in scope, is an
expedient means of accomplishing the purpose. It may, second, constitute an
attempt to determine whether, given the legitimacy of the project, a given
acquisition is “indispensable” — i.e., the only means of accomplishing a purpose, the
public convenience and reasonable scope of which are not at issue. According to the
rule set forth in Lewis, the first question would fall within the scope of judicial
inquiry and the second question would not. The resolution of the issue presented in
the instant case thus depends on a determination of precisely what questions the
witnesses were not allowed to answer. [Citations omitted by Keller court.] 469 N.E.2d
at 266.
See also City of Chicago v. First Bank of Oak Park, 178 Ill.App.3d 321, 533 N.E.2d 424, 127
Ill.Dec. 552 (1st Dist. 1988); City of Elgin v. Elgin National Bank, 174 Ill.App.3d 1061, 529
N.E.2d 639, 124 Ill.Dec. 658 (1st Dist. 1988); Department of Transportation v. First Galesburg
National Bank & Trust Co., 141 Ill.2d 462, 566 N.E.2d 254, 152 Ill.Dec. 567 (1990); Forest
Preserve District of DuPage County v. Brown Family Trust, 323 Ill.App.3d 686, 753 N.E.2d
1110, 257 Ill.Dec. 484 (2d Dist. 2001).
The court in City of Chicago v. St. John’s United Church of Christ, 404 Ill.App.3d 505, 935
N.E.2d 1158, 343 Ill.Dec. 930 (2d Dist. 2010), is in accord with the holding in Keller, supra. In
St. John’s United Church, the court noted that an ordinance containing the legislative finding of
necessity is prima facie evidence of necessity and that the court’s inquiry into the existence of
necessity in an eminent domain case is “limited but crucial.” 935 N.E.2d at 1170. The court
further explained its rationale by noting:
The general rule is that where the legislature has delegated to a corporation the
authority to exercise the power of eminent domain, the corporation has also the
authority to decide on the necessity for exercising the right, and its decision will be
conclusive in the absence of a clear abuse of the power granted. . . . An abuse of such
power, however, will not be tolerated, and if no necessity for its exercise exists, or if
it appears that the quantity of the property sought to be taken is grossly in excess of
the amount necessary for the public use, the Court will not permit the land to be
taken. [Citations omitted by St. John’s United Church court.] Id., quoting City of
Chicago v. Vaccarro, 408 Ill. 587, 97 N.E.2d 766, 771 – 772 (1951).
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However, the Illinois Supreme Court condemned the practice of a governmental agency
seeking to acquire more than what it actually “needed” in People ex rel. Director of Finance v.
Young Women’s Christian Association of Springfield, 86 Ill.2d 219, 427 N.E.2d 70, 55 Ill.Dec.
950 (1981). See also Village of Bensenville v. City of Chicago, 389 Ill.App.3d 446, 906 N.E.2d
556, 329 Ill.Dec. 358 (2d Dist. 2009). Generally speaking, once the legislature has granted the
authority to condemn to a governmental body, it has included in that authority the right to decide
the necessity for the use of the condemnation power. Only the abuse of the exercise of that power
can be challenged. Department of Transportation v. 151 Interstate Road Corp., 209 Ill.2d 471,
810 N.E.2d 1, 284 Ill.Dec. 348 (2004); Department of Public Works & Buildings v. Keller, 61
Ill.2d 320, 335 N.E.2d 443 (1975); Lewis, supra; Department of Conservation of State of Illinois
v. Harold’s Farm, Inc., 68 Ill.App.3d 148, 385 N.E.2d 1097, 24 Ill.Dec. 807 (3d Dist. 1978). For
an excellent discussion of when the court found an abuse of power, see Village of Skokie v.
Gianoulis, 260 Ill.App.3d 287, 632 N.E.2d 106, 198 Ill.Dec. 47 (1st Dist. 1994). See also City of
Batavia v. Sandberg, 286 Ill.App.3d 991, 677 N.E.2d 1010, 222 Ill.Dec. 476 (2d Dist. 1997). In
County of St. Clair v. Faust, 278 Ill.App.3d 152, 662 N.E.2d 584, 214 Ill.Dec. 1018 (5th Dist.
1996), the court held that the county’s taking of 200 acres was grossly excessive in view of the
fact that the project took approximately 80 acres of wetland forest out of service. The court stated
that when the amount of property sought to be taken is grossly in excess of the amount necessary
to the public use, the taking must be stopped.
2. [3.8] Public Purpose
Prior to January 1, 2007, 735 ILCS 5/7-102 had established the requirement that eminent
domain be used only for a public purpose, which it referred to as a “public use.” The standards as
to what constituted a public use were set forth in People ex rel. Tuohy v. City of Chicago, 394 Ill.
477, 68 N.E.2d 761 (1946), and later confirmed in Southwestern Illinois Development Authority
v. National City Environmental, L.L.C., 199 Ill.2d 225, 768 N.E.2d 1, 263 Ill.Dec. 241 (2002).
Some of the standards are as follows:
a. The public must, to some extent, be entitled to use or enjoy the property, not as a mere
favor or by permission of the owner, but by right.
b. The benefit may be confined to a particular district but must be directly beneficial to a
considerable number of inhabitants and must be controlled by law for the advantage of that
particular portion of the community to be benefited.
c. All persons must have an equal right to the use of the property and land may not be
acquired by condemnation for private use. Poole v. City of Kankakee, 406 Ill. 521, 94 N.E.2d 416
(1950). However, the court held that the fact that the acquisition of land by eminent domain
proceedings must be for a public purpose does not mean that the land subsequently sold to a
private developer could not have been taken and cleared for a public purpose. City of Chicago v.
Midland Smelting Co., 385 Ill.App.3d 945, 896 N.E.2d 364, 324 Ill.Dec. 578 (1st Dist. 2008);
Southwestern Illinois Development Authority v. Al-Muhajirum, 318 Ill.App.3d 1005, 744 N.E.2d
308, 253 Ill.Dec. 26 (5th Dist. 2001). In Lake Louise Improvement Ass’n v. Multimedia
Cablevision of Oak Lawn, Inc., 157 Ill.App.3d 713, 510 N.E.2d 982, 109 Ill.Dec. 914 (1st Dist.
1987), a cable television system was found to be for a public purpose rather than a private
purpose. See also Village of Skokie v. Gianoulis, 260 Ill.App.3d 287, 632 N.E.2d 106, 198
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Ill.Dec. 47 (1st Dist. 1994); Alsip Park District v. D & M Partnership, 252 Ill.App.3d 277, 625
N.E.2d 40, 192 Ill.Dec. 80 (1st Dist. 1993); County of Wabash v. Partee, 241 Ill.App.3d 59, 608
N.E.2d 674, 181 Ill.Dec. 601 (5th Dist. 1993).
d. Revenue expansion through increased revenues, standing alone, is insufficient to
establish a public purpose. National City Environmental, supra.
In the event that a question arises as to whether the purpose for which the action is filed is a
public purpose, it is suggested that the attorney for the condemnee might find additional
authorities in National City Environmental, supra; Friends of Parks v. Chicago Park District,
203 Ill.2d 312, 786 N.E.2d 161, 271 Ill.Dec. 903 (2003); People v. Chicago Transit Authority,
392 Ill. 77, 64 N.E.2d 4 (1945); Poole, supra; Department of Public Works & Buildings v.
Farina, 29 Ill.2d 474, 194 N.E.2d 209 (1963); Department of Public Works & Buildings of State
of Illinois v. Koch, 62 Ill.App.2d 182, 210 N.E.2d 236 (4th Dist. 1965); Village of Long Grove v.
First National Bank of Lake Forest, 164 Ill.App.3d 253, 517 N.E.2d 729, 115 Ill.Dec. 318 (2d
Dist. 1987). In County of St. Clair v. Faust, 278 Ill.App.3d 152, 662 N.E.2d 584, 214 Ill.Dec.
1018 (5th Dist. 1996), the court held that the taking of acreage for wetland mitigation was
authorized and was an appropriate use of eminent domain. In City of Chicago v. Boulevard Bank
National Ass’n, 293 Ill.App.3d 767, 688 N.E.2d 844, 228 Ill.Dec. 146 (1st Dist. 1997), the court
affirmed the trial court’s decision that redevelopment in a commercially blighted area is a proper
public purpose in the use of a tax-increment financing (TIF) ordinance. See also Al-Muhajirum,
supra. In contrast, see Kleinschmidt Inc. v. County of Cook, 287 Ill.App.3d 312, 678 N.E.2d
1065, 223 Ill.Dec. 57 (2d Dist. 1997).
Notwithstanding the foregoing standards on public purpose/public use, the following
provisions of the Eminent Domain Act define public purpose/public use: 735 ILCS 30/5-5-5,
30/10-5-10, 30/10-5-105, 30/15-1-5, 30/15-5-1 through 30/15-5-40, 30/20-5-5, and 30/25-7-103.1
through 30/25-7-103.149. Despite the definition of public purpose/public use as set forth in the
Eminent Domain Act, a question that has not yet been tested with the courts is whether the
legislative determination of public purpose/public use constitutionally prevails over what the
Illinois Supreme Court has said is a judicial determination. National City Environmental, supra.
However, consideration should be given to the pronouncement of the U.S. Supreme Court in Kelo
v. City of New London, Connecticut, 545 U.S. 469, 162 L.Ed.2d 439, 125 S.Ct. 2655 (2005), in
which the Court held that each state is free to legislatively or judicially define “public purpose.”
For an interesting discussion of whether “substitution of uses,” which occurs when the
condemnor seeks to relocate a property owner from the pathway of an improvement and
condemns the property to provide replacement land, constitutes a public purpose/public use see:
Department of Transportation of State of Illinois v. V.I.P. Manor, Inc., 117 Ill.App.3d 137, 453
N.E.2d 44, 72 Ill.Dec. 739 (5th Dist. 1983); Illinois State Toll Highway Authority v. Karn, 9
Ill.App.3d 784, 293 N.E.2d 162 (2d Dist. 1973); Department of Public Works & Buildings of
State of Illinois v. Bozarth, 101 Ill.App.2d 99, 242 N.E.2d 54 (4th Dist. 1968).
Following the appellate court ruling in National City Environmental, supra, however, that
same appellate court decided Al-Muhajirum, supra, finding that the elimination of slums and
blighted property is a proper use for a valid public purpose despite the property’s ultimate transfer
to a private third party. But see Kleinschmidt, supra.
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§3.9
ILLINOIS EMINENT DOMAIN PRACTICE
3. [3.9] Bona Fide Attempt To Agree
The Eminent Domain Act requires that before an eminent domain action can be filed, an
effort must be made to agree on compensation unless the owner of the property is incapable of
consenting, the owner’s name or residence is unknown, or the owner is a nonresident of the state.
735 ILCS 30/10-5-10. Although at first blush it would appear that the legislature intended that
there be some “negotiations” between the condemnor and the condemnee, that may not be the
case. As a practical matter, what generally happens is that the condemning authority, which has
much longer to prepare than the condemnee, has an appraisal in hand, makes an offer based on
that appraisal, and gives the individual a limited number of days within which to accept or reject
it. The failure to accept the offer within that time period generally leads to the filing of the
complaint. (However, the property owner now receives the advance warnings required by 735
ILCS 30/10-5-15 giving 60 days within which to start preparation in state cases.) Exhaustive
negotiations are, therefore, not required. If there is a wide disparity in the relative positions of the
parties, the courts have concluded that futile negotiations are not required. County Board of
School Trustees of DuPage County v. Boram, 26 Ill.2d 167, 186 N.E.2d 275 (1962). In Forest
Preserve District of DuPage County v. Brookwood Land Venture, 229 Ill.App.3d 978, 595
N.E.2d 136, 172 Ill.Dec. 73 (2d Dist. 1992), the court held that when circumstances demonstrate
that an agreement is unreachable, no further negotiations are necessary. In Illinois State Toll
Highway Authority v. DiBenedetto, 275 Ill.App.3d 400, 655 N.E.2d 1085, 211 Ill.Dec. 702 (1st
Dist. 1995), both the majority and the dissent engaged in a good discussion of what constitutes
good faith.
It is a condition precedent to the exercise of the power of eminent domain that the acquiring
authority make a good-faith attempt to reach an agreement on compensation. Lake County Forest
Preserve District v. First National Bank of Waukegan, 200 Ill.App.3d 354, 558 N.E.2d 721, 146
Ill.Dec. 758 (2d Dist. 1990). “Good faith” includes the obligation of the condemning authority to
provide to the condemnee a copy of the condemning authority’s complete appraisal. Department
of Transportation v. Hunziker, 342 Ill.App.3d 588, 796 N.E.2d 122, 277 Ill.Dec. 407 (3d Dist.
2003). However, see Department of Transportation of State of Illinois v. Tucker, 366 Ill.App.3d
739, 853 N.E.2d 749, 304 Ill.Dec. 672 (3d Dist. 2006), wherein the Third District reversed itself
and held that good-faith negotiation does not require that the condemnee be provided with a copy
of the condemning authority’s appraisal. For an example of a bad-faith offer, see Forest Preserve
District of Will County v. Marquette National Bank, 208 Ill.App.3d 823, 567 N.E.2d 635, 153
Ill.Dec. 677 (3d Dist. 1991). See also City of Springfield, Illinois v. West Koke Mill Development
Corp., 312 Ill.App.3d 900, 728 N.E.2d 781, 245 Ill.Dec. 699 (4th Dist. 2000).
For additional information on this point, see Department of Transportation of State of Illinois
v. Marsh, 54 Ill.App.3d 890, 368 N.E.2d 172, 10 Ill.Dec. 686 (4th Dist. 1977); County Board of
School Trustees of Macon County v. Batchelder, 7 Ill.2d 178, 130 N.E.2d 175 (1955); City of
Chicago v. Harrison-Halsted Building Corp., 11 Ill.2d 431, 143 N.E.2d 40 (1957); Patrick Media
Group, Inc. v. DuPage Water Commission, 258 Ill.App.3d 1068, 630 N.E.2d 958, 196 Ill.Dec.
793 (1st Dist. 1994); County of Wabash v. Partee, 241 Ill.App.3d 59, 608 N.E.2d 674, 181
Ill.Dec. 601 (5th Dist. 1993); Department of Transportation, State of Illinois v. Anderson, 384
Ill.App.3d 309, 892 N.E.2d 116, 322 Ill.Dec. 869 (3d Dist. 2008); Forest Preserve District of
DuPage County v. First National Bank of Franklin Park, 401 Ill.App.3d 966, 930 N.E.2d 477,
341 Ill.Dec. 267 (2d Dist. 2010).
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§3.10
4. [3.10] Condemnor’s Authority
The Eminent Domain Act provides, inter alia,
When the right . . . to take private property for public use, without the owner’s
consent . . . has been or is conferred by general law or special charter . . . the party
authorized to take or damage the property so required . . . may apply to the circuit
court of the county where the property or any part of the property is situated, by
filing with the clerk a complaint. The complaint shall set forth, by reference . . . the
complainant’s authority in the premises. 735 ILCS 30/10-5-10(a).
A traverse and motion to dismiss places in issue all of those points that could otherwise be
raised by way of an answer to the complaint for condemnation. Inasmuch as §10-5-10 sets forth
that the condemnor must in its complaint state its authority, the traverse, by disputing that fact,
places the burden on the condemnor to prove its authority. Department of Public Works &
Buildings v. Keller, 61 Ill.2d 320, 335 N.E.2d 443 (1975); Forest Preserve District of DuPage
County v. Miller, 339 Ill.App.3d 244, 789 N.E.2d 916, 273 Ill.Dec. 742 (2d Dist. 2003).
Once a traverse has been filed, the burden of proof is on the condemnor to make a prima facie
showing to support the allegations set forth in the condemnation complaint including the
condemnor’s authority for the condemnation action. Miller, supra; Board of Trustees of Southern
Illinois University v. Lange, 28 Ill.2d 229, 190 N.E.2d 789 (1963).
A condemnor has only the powers of eminent domain that are conferred on it by the
appropriate legislative body if a statue or ordinance conferring the power of eminent domain must
be strictly construed. Forest Preserve District of DuPage County v. Brown Family Trust, 323
Ill.App.3d 686, 753 N.E.2d 1110, 257 Ill.Dec. 484 (2d Dist. 2001). Note, however, although an
ordinance delegating the power of eminent domain is to be strictly construed, the ordinance is
presumed valid and the burden of establishing the invalidity of the ordinance is on the condemnee
challenging the ordinance. Id.
For an interesting discussion of an attempt by the Illinois Department of Transportation to
expand its authority and the limitation created thereon by the Fifth District, see Department of
Transportation of State of State of Illinois v. V.I.P. Manor, Inc., 117 Ill.App.3d 137, 453 N.E.2d
44, 72 Ill.Dec. 739 (5th Dist. 1983). However, when a highway commissioner failed to plead
allegations meeting the statutory requirements, it was held that it was not a condition precedent to
the exercise of the power of eminent domain. Town of Cotton Hill Road District v. Hockenyos,
130 Ill.App.3d 379, 474 N.E.2d 422, 85 Ill.Dec. 694 (4th Dist. 1985); Trotter v. Spezio, 349
Ill.App.3d 959, 812 N.E.2d 577, 285 Ill.Dec. 757 (3d Dist. 2004).
A municipality can exercise the power of eminent domain only when it has been specifically
conferred by legislative enactment (City of Oakbrook Terrace v. LaSalle National Bank, 186
Ill.App.3d 343, 542 N.E.2d 478, 134 Ill.Dec. 299 (2d Dist. 1989)) and then only in the manner
and by the agency so empowered (Village of Long Grove v. First National Bank of Lake Forest,
164 Ill.App.3d 253, 517 N.E.2d 729, 115 Ill.Dec. 318 (2d Dist. 1987); Brown Family Trust,
supra). See also Forest Preserve District of DuPage County v. West Suburban Bank, 161 Ill.2d
448, 641 N.E.2d 493, 204 Ill.Dec. 269 (1994). However, if the property is not necessary for the
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§3.11
ILLINOIS EMINENT DOMAIN PRACTICE
public project, there is no constitutional authority to take the property despite what the legislature
has asserted in the authorizing statute. Village of Bensenville v. City of Chicago, 389 Ill.App.3d
446, 906 N.E.2d 556, 329 Ill.Dec. 358 (2d Dist. 2009).
In City of Marseilles v. Radke, 287 Ill.App.3d 757, 679 N.E.2d 125, 223 Ill.Dec. 181 (3d Dist.
1997), the appellate court held that the record failed to establish that the easement sought by the
city was within the legal description of the tax-increment financing district contained in the notice
published prior to the adoption of the ordinance establishing the TIF district and that, therefore,
the circuit court did not have subject-matter jurisdiction. See City of Chicago v. Boulevard Bank
National Ass’n, 293 Ill.App.3d 767, 688 N.E.2d 844, 228 Ill.Dec. 146 (1st Dist. 1997). In City of
Batavia v. Sandberg, 286 Ill.App.3d 991, 677 N.E.2d 1010, 222 Ill.Dec. 476 (2d Dist. 1997), the
court held that the city had followed the Tax Increment Allocation Redevelopment Act (TIA), 65
ILCS 5/11-74.4-1, et seq., and its own ordinances, and that the city thus had authority to acquire
the building by eminent domain. In Village of Cary v. Trout Valley Ass’n, 282 Ill.App.3d 165,
667 N.E.2d 1082, 217 Ill.Dec. 689 (2d Dist. 1996), the court held that the village did not have
authority to condemn when its ordinance did not contain the necessary requirements. In Illinois
State Toll Highway Authority v. DiBenedetto, 275 Ill.App.3d 400, 655 N.E.2d 1085, 211 Ill.Dec.
702 (1st Dist. 1995), the court held that the resolution authorizing condemnation had not
adequately identified the property. For an interesting examination of what happens when a village
attempts to require an exaction, see Amoco Oil Co. v. Village of Schaumburg, 277 Ill.App.3d 926,
661 N.E.2d 380, 214 Ill.Dec. 526 (1st Dist. 1995).
5. [3.11] Property Subject to Condemnation
Regarding property subject to condemnation, the Eminent Domain Act provides that:
[n]o property, . . . belonging to a railroad or other public utility subject to the
jurisdiction of the Illinois Commerce Commission may be taken or damaged,
pursuant to the provisions of this Act, without the prior approval of the Illinois
Commerce Commission. 735 ILCS 30/10-5-10(g).
Property already devoted to a public purpose cannot be condemned without specific
authority. See Department of Public Works & Buildings v. Ells, 23 Ill.2d 619, 179 N.E.2d 679
(1962); Village of Elmwood Park v. Forest Preserve of Cook County, 21 Ill.App.3d 597, 316
N.E.2d 140 (1st Dist. 1974). See also City of Evanston v. Regional Transportation Authority, 202
Ill.App.3d 265, 559 N.E.2d 899, 147 Ill.Dec. 559 (1st Dist. 1990); Village of Woodridge v. Board
of Education of Community High School District 99, 403 Ill.App.3d 559, 933 N.E.2d 392, 342
Ill.Dec. 806 (2d Dist. 2010).
For a discussion regarding property condemned under the Public Utilities Act, 220 ILCS 5/1101, et seq., see Kreutzer v. Illinois Commerce Commission, 404 Ill.App.3d 791, 936 N.E.2d 147,
344 Ill.Dec. 5 (2d Dist. 2010).
For a discussion regarding the condemnation of tax increment financing bonds, see City of
Chicago v. Prologis, 236 Ill.2d 69, 923 N.E.2d 285, 337 Ill.Dec. 726 (2010).
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§3.13
For an interesting discussion on what property constitutes the “whole property” for purposes
of determining the fair market value of the property sought to be taken and damage to the
remainder, see Illinois Department of Natural Resources v. Pedigo, 348 Ill.App.3d 1044, 811
N.E.2d 761, 285 Ill.Dec. 274 (4th Dist. 2004).
6. [3.12] Proper Description
Although it is too often taken for granted, the legal description of the property to be acquired
is an important element of the complaint and should be examined by the condemnee’s attorney.
The Eminent Domain Act requires that a legal description be included in the complaint. 735 ILCS
30/10-5-10. The condemnor is responsible for an accurate description. Department of Public
Works & Buildings v. Finks, 10 Ill.2d 20, 139 N.E.2d 242 (1956); Department of Conservation of
State of Illinois v. Harold’s Farm, Inc., 68 Ill.App.3d 148, 385 N.E.2d 1097, 24 Ill.Dec. 807 (3d
Dist. 1978). See Illinois State Toll Highway Authority v. DiBenedetto, 275 Ill.App.3d 400, 655
N.E.2d 1085, 211 Ill.Dec. 702 (1st Dist. 1995). However, the long-standing caselaw holds that the
property description in a condemnation complaint is sufficient if a competent surveyor can locate
the land sought to be condemned. Union Electric Power Co. v. Sauget, 1 Ill.2d 125, 115 N.E.2d
246 (1953); Smith v. Claussen Park Drainage & Levee Dist., 229 Ill. 155, 82 N.E.278 (1907);
City of Winchester v. Ring, 312 Ill. 544, 144 N.E. 333 (1924). See also Department of Public
Works & Buildings v. Watson, 340 Ill 342, 172 N.E. 718 (1930) (blueprints attached to complaint
for condemnation provide sufficient property description).
D. [3.13] When Traverse Does Not Lie
There are a number of areas in which a traverse has been held not to lie. Failing to name a
necessary party is not fatal but, rather, means only that the action is not binding on the omitted
party. Department of Transportation of State of Illinois v. Collins, 69 Ill.App.3d 269, 387 N.E.2d
6, 25 Ill.Dec. 549 (3d Dist. 1979); Department of Transportation of State of Illinois v. Marsh, 54
Ill.App.3d 890, 368 N.E.2d 172, 10 Ill.Dec. 686 (4th Dist. 1977).
Failure to have the funds on hand with which to pay for the project is not a proper basis to
challenge the action of the condemning authority. However, this issue may be raised in an inquiry
concerning lack of diligence since the condemning authority cannot obtain title until the funds are
deposited with the county treasurer. City of Chicago v. McCluer, 339 Ill. 610, 171 N.E. 737
(1930).
In an interesting discussion concerning the term “final” as it relates to plans, the Fifth
District, in Department of Transportation of State of Illinois v. Keller, 127 Ill.App.3d 976, 469
N.E.2d 262, 82 Ill.Dec. 728 (5th Dist. 1984), held that the Illinois Department of Transportation
can use alternative definitions of the term “final” at various stages of the construction planning
and construction itself. Logically, one would think that the plans should be final before the
condemning authority proceeds with land acquisition, but such is not the case. See Department of
Public Works & Buildings of State of Illinois v. Vogt, 51 Ill.App.3d 770, 366 N.E.2d 310, 9
Ill.Dec. 53 (5th Dist. 1977). See also City of Chicago v. Albert J. Schorsch Realty Co., 127
Ill.App.2d 51, 261 N.E.2d 711 (1st Dist. 1970).
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§3.14
ILLINOIS EMINENT DOMAIN PRACTICE
Unless the condemnee can show a clear abuse of power, the condemnee is not permitted to go
into the discretion of the condemning agency in its determination to acquire the subject property.
Department of Transportation of State of Illinois v. Keller, 149 Ill.App.3d 829, 500 N.E.2d 982,
102 Ill.Dec. 881 (5th Dist. 1986); Department of Transportation v. Sunnyside Partnership, L.P.,
337 Ill.App.3d 322, 785 N.E.2d 1018, 271 Ill.Dec. 824 (5th Dist. 2003). The Illinois Supreme
Court, in People ex rel. Director of Finance v. Young Women’s Christian Association of
Springfield, 86 Ill.2d 219, 427 N.E.2d 70, 55 Ill.Dec. 950 (1981), however, held that from the
facts presented in that case, the Capital Development Board was seeking to acquire more land
than it needed.
E. [3.14] Trial of a Traverse
The trial of a traverse is no different than any other trial. Often the parties believe that the
hearing is similar to that of a motion hearing. However, the traverse is, in fact, a trial of the
allegations raised in the pleading filed by the condemnee’s attorney. Southwestern Illinois
Development Authority v. National City Environmental, L.L.C., 304 Ill.App.3d 542, 710 N.E.2d
896, 238 Ill.Dec. 99 (5th Dist. 1999), aff’d, 199 Ill.2d 225 (2002). The burden is on the
condemnor on each of the points raised in the traverse. Trustees of Schools of Township No. 37 v.
First National Bank of Blue Island, 49 Ill.2d 408, 274 N.E.2d 56 (1971); Board of Trustees of
Southern Illinois University v. Lange, 28 Ill.2d 229, 190 N.E.2d 789 (1963); City of Evanston v.
Piotrowicz, 20 Ill.2d 512, 170 N.E.2d 569 (1960). The condemnor must make a prima facie case
on each of the disputed allegations before the burden shifts to the condemnee. Department of
Public Works & Buildings v. Keller, 61 Ill.2d 320, 335 N.E.2d 443 (1975). After the condemnor
establishes its prima facie case, the burden then shifts to the condemnee. Lake County Forest
Preserve District v. First National Bank of Waukegan, 154 Ill.App.3d 45, 506 N.E.2d 424, 106
Ill.Dec. 717 (2d Dist. 1987). See also City of Oakbrook Terrace v. LaSalle National Bank, 186
Ill.App.3d 343, 542 N.E.2d 478, 134 Ill.Dec. 299 (2d Dist. 1989); Department of Transportation
v. First Galesburg National Bank & Trust Co., 189 Ill.App.3d 797, 545 N.E.2d 770, 137 Ill.Dec.
117 (3d Dist. 1989), rev’d, 141 Ill.2d 462 (1990).
As a tactical matter, it would not seem to serve any purpose to “save” any information since
the hearing on the traverse is the only opportunity when the disputed questions of necessity,
public purpose, bona fide attempt to agree, authority, and legal description can be raised. The
condemnee’s attorney should be prepared with evidence on the disputed points. If in fact the
traverse is simply a broad-range attack on the complaint, the trial court may very well limit the
scope of the traverse hearing to only those contested points. A condemnee’s attorney who has
done an adequate job of preparation and discovery should not be surprised. Because of the
importance of the hearing on the traverse, counsel for the condemnee should not be rushed into a
proceeding without an adequate opportunity to prepare. Once the traverse is decided, the only
remaining issue is valuation, and if the condemnee is serious in its opposition to the allegations of
the complaint, the traverse trial will be its only chance to try these issues. See City of Chicago v.
Anthony, 136 Ill.2d 169, 554 N.E.2d 1381, 1383, 144 Ill.Dec. 93 (1990); Village of Cary v. Trout
Valley Ass’n, 282 Ill.App.3d 165, 667 N.E.2d 1082, 217 Ill.Dec. 689 (2d Dist. 1996); City of
Batavia v. Sandberg, 286 Ill.App.3d 991, 677 N.E.2d 1010, 222 Ill.Dec. 476 (2d Dist. 1997).
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§3.17
F. [3.15] If the Traverse Is Denied
An order denying the traverse is not a final and appealable order. Village of River Forest v.
Ash Realty Co., 23 Ill.App.3d 645, 321 N.E.2d 68 (1st Dist. 1974). The findings in a motion for
immediate vesting of title are final and appealable (735 ILCS 30/20-5-10(b)), under S.Ct. Rule
307(a)(7). While at first blush it would appear that some of the same points are involved, no
appeal of the order denying the traverse can be taken under S.Ct. Rule 301. See Southwestern
Illinois Development Authority v. Vollman, 235 Ill.App.3d 32, 600 N.E.2d 926, 175 Ill.Dec. 683
(5th Dist. 1992); Department of Transportation v. 151 Interstate Road Corp., 209 Ill.2d 471, 810
N.E.2d 1, 284 Ill.Dec. 348 (2004). NOTE: 151 Interstate, supra, overruled Southwestern Illinois
Development Authority v. National City Environmental, L.L.C., 199 Ill.2d 225, 768 N.E.2d 1, 263
Ill.Dec. 241 (2002), by holding that the issue of whether a condemnor negotiated in “good faith”
can be raised in an interlocutory appeal.
G. [3.16] If the Traverse Is Granted
If the traverse and motion to dismiss are granted and if the condemnor cannot rectify the
errors in its complaint, then the court’s order is treated the same way as any other order
dismissing a complaint. Counsel for the condemnee should review the provisions of the Eminent
Domain Act regarding the possibility of moving for an order assessing costs, expenses, and
reasonable attorneys’ fees. 735 ILCS 30/20-5-45. See Town of Libertyville v. Bank of Waukegan,
152 Ill.App.3d 1066, 504 N.E.2d 1305, 105 Ill.Dec. 787 (2d Dist. 1987).
V. [3.17] COUNTERCLAIM
Starting with the Illinois Pattern Jury Instructions — Civil (2000), the term “counterclaim”
has been used for what was previously called a “cross-petition.” See 735 ILCS 5/2-608 for the
rules on counterclaims. The courts in Department of Transportation ex rel. State of Illinois v.
First National Bank of Arcola, 241 Ill.App.3d 601, 609 N.E.2d 389, 182 Ill.Dec. 86 (4th Dist.
1993), and Department of Transportation v. HP/Meachum Land Limited Partnership, 245
Ill.App.3d 252, 614 N.E.2d 485, 185 Ill.Dec. 351 (2d Dist. 1993), also used the term
“counterclaim” referring to what previously was referred to as a “cross-petition.”
A counterclaim alleges that property not described in the complaint to condemn is damaged
by virtue of the taking (also known as “damage to the remainder”) and that the condemnee is
entitled to compensation for that damage. For an example of a counterclaim, see §3.25 below. See
also Chapter 7 of this handbook.
While some cases have held that a counterclaim is not required when the complaint describes
the defendant as the owner of a parcel of property and states that only a part of the property is
required for the condemnor’s purposes, the safer course of action is to file the counterclaim.
Central Illinois Public Service Co. v. Rider, 12 Ill.2d 326, 146 N.E.2d 48 (1957).
Although efforts have been made to challenge the Illinois Department of Transportation by
including in the subject matter of the counterclaim elements other than simply damage to the
remainder, at least the Fifth and Fourth Districts have limited the scope of the counterclaim. In
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§3.18
ILLINOIS EMINENT DOMAIN PRACTICE
Department of Transportation v. McGovern, 103 Ill.App.3d 461, 431 N.E.2d 437, 59 Ill.Dec. 152
(5th Dist. 1982), the optionees filed a counterclaim for damage alleging that the Department
failed to comply with §4-510 of the Illinois Highway Code, 605 ILCS 5/1-101, et seq. They
sought to recover damages alleged to have resulted from their failure to exercise an option to
purchase real estate after expending large sums in reliance on the Department’s representation
that it did not intend to acquire the land in question. The court held that a counterclaim was not
the appropriate remedy for such damage, but rather, the exclusive remedy was found in the Court
of Claims Act, 705 ILCS 505/1, et seq. Likewise, in Evans v. Brown, 267 Ill.App.3d 662, 642
N.E.2d 1335, 205 Ill.Dec. 218 (4th Dist. 1994), the court held that the Court of Claims has
exclusive jurisdiction. As an interesting aside, see Vogt v. Bartelsmeyer, 264 Ill.App.3d 165, 636
N.E.2d 1185, 201 Ill.Dec. 753 (5th Dist. 1994), in which the court upheld the lower court’s
enforcement of an agreement reached in an earlier action. See the earlier related decision
Department of Transportation v. Schien, 72 Ill.2d 287, 381 N.E.2d 241, 21 Ill.Dec. 163 (1978).
The Eminent Domain Act provides that any person who has not been made a party may
become one by filing an intervening complaint setting forth the interests of the intervenor in the
property sought to be taken or damaged. 735 ILCS 30/10-5-75. This complaint may be in the
nature of a counterclaim, but needless to say, if a proper party is not added initially to the
complaint, the burden is not on the condemnee to supply information to the plaintiff since, under
735 ILCS 30/10-5-10, the burden is on the condemnor to list in the complaint the names of all
persons interested in the property.
Remember that by filing a counterclaim the right to file a traverse and motion to dismiss may
be treated as waived (see §3.5 above), so the better practice would be to file the traverse initially.
Harvey v. Aurora & G. Ry., 174 Ill. 295, 51 N.E. 163 (1898). A proper counterclaim should
include a description of the property alleged to have been damaged by the taking, the ownership
thereof, and the reason for the claim of damage. Rider, supra.
From a timing standpoint, it is best to file the counterclaim after an adverse ruling on the
traverse simply to make certain that jurisdictional questions are not waived. Harvey, supra.
If a condemnee’s attorney is confronted with the need for a late filing of a counterclaim,
reference should be had to the following cases: Rider, supra; Forest Preserve District of Cook
County v. Krol, 12 Ill.2d 139, 145 N.E.2d 599 (1957); Lake County Forest Preserve District v.
Continental Illinois National Bank & Trust Company of Chicago, 35 Ill.App.3d 942, 343 N.E.2d
6 (2d Dist. 1976).
As to the question of the possible waiver of any deficiency in a counterclaim, see City of
Chicago v. Chicago City Bank & Trust Co., 129 Ill.App.3d 410, 472 N.E.2d 827, 84 Ill.Dec. 690
(1st Dist. 1984).
VI. [3.18] RIGHT TO OPEN AND CLOSE
In Department of Business & Economic Development v. Brummel, 52 Ill.2d 538, 288 N.E.2d
392, 395 (1972), the court set forth the various scenarios as to which party proceeds first in the
trial of the cause, concluding that when a cross-petition (now counterclaim) has been filed, the
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§3.20
landowner may file a motion to proceed first and the court may order the landowner to so
proceed. Since Brummel, a number of courts have addressed the issue. In Department of Public
Works & Buildings of State of Illinois v. Roehrig, 45 Ill.App.3d 189, 359 N.E.2d 752, 3 Ill.Dec.
893 (5th Dist. 1976), the court held that it was error, although not reversible error, to permit the
landowner to open and close even though there was no cross-petition. In Department of
Transportation ex rel. State of Illinois v. First National Bank of Arcola, 241 Ill.App.3d 601, 609
N.E.2d 389, 390 – 391, 182 Ill.Dec. 86 (4th Dist. 1993), citing Brummel, supra, the court held
that when there is a counterclaim, the determination as to which party proceeds first is in the
sound discretion of the court. In First National, actions involving two separate parcels were
consolidated for trial. In only one of the cases was a counterclaim filed.
The preferred course is to file a motion to open and close and urge the court that the party
who has the real burden of proof is the owner, who must prove damage to the remainder.
Although the condemnor has the burden of proving the fair cash market value of the part taken,
the instructions, unlike the typical instructions defining burden of proof, simply direct the jury to
find within the range of the evidence.
For a sample motion to open and close, see §3.26 below.
VII. [3.19] VIEW OF PREMISES
The Eminent Domain Act requires that the jury be permitted to view (inspect) the property
sought to be taken or damaged upon the request of either party. 735 ILCS 30/10-5-45. Viewing
the premises is a good way to educate the jury to counsel’s theory of the value of the property,
including damages to the remainder, as it gives the jury a real sense of the lay of the condemnee’s
land, as well as the surrounding area. See §3.27 below for a motion for view of the premises.
VIII. [3.20] LATER MOTIONS
Counsel should not feel limited to the motions presented thus far in this chapter. The possible
course of action for the condemnee’s attorney is limited only by his or her imagination. In
Department of Transportation v. Schien, 72 Ill.2d 287, 381 N.E.2d 241, 21 Ill.Dec. 163 (1978),
the complaint was dismissed for failure to diligently pursue the project, although the court
converted the finding of preliminary just compensation to a finding of final just compensation. In
Department of Transportation v. Catholic Diocese of Belleville, 63 Ill.App.3d 683, 379 N.E.2d
1343, 20 Ill.Dec. 275 (5th Dist. 1978), the date of valuation was changed and no comment was
made about this in the appellate court decision. In Department of Public Works & Buildings of
State of Illinois v. Roehrig, 45 Ill.App.3d 189, 359 N.E.2d 752, 3 Ill.Dec. 893 (5th Dist. 1976),
the Fifth District made certain pronouncements concerning abusive discovery. All of these areas,
and others, can provide fertile ground for the imaginative attorney. Roehrig was cited in the noneminent domain case, Lundell v. Citrano, 129 Ill.App.3d 390, 472 N.E.2d 541, 84 Ill.Dec. 581
(1st Dist. 1984), in a discussion on in limine motions — often a good trial tactic. See also In re
Estate of Loesch, 134 Ill.App.3d 766, 481 N.E.2d 32, 89 Ill.Dec. 680 (1st Dist. 1985), for a
similar discussion.
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§3.21
ILLINOIS EMINENT DOMAIN PRACTICE
In People ex rel. Department of Transportation v. Birger, 155 Ill.App.3d 130, 507 N.E.2d
1321, 107 Ill.Dec. 952 (5th Dist. 1987), the Department’s attorney permitted a state appraiser to
read daily transcripts even though a motion to preclude witnesses had previously been granted.
Although the trial court permitted wide cross-examination and although no mention of the error
was made in the appeal because it was the Department rather than the landowner who appealed,
attention should be addressed to such abusive possibilities. See Illinois State Toll Highway
Authority v. West Suburban Bank, 208 Ill.App.3d 923, 567 N.E.2d 730, 153 Ill.Dec. 772 (2d Dist.
1991), in which the court held that even when an expert had testified at a previous quick-take
hearing, that expert must still be later disclosed to comply with former S.Ct. Rule 220, now S.Ct.
Rule 213(f). But see Illinois State Toll Highway Authority v. Dicke, 208 Ill.App.3d 158, 566
N.E.2d 1003, 153 Ill.Dec. 153 (2d Dist. 1991), for certain pitfalls. The court held it was error for
the owners’ counsel to argue and their expert witness to testify concerning a post-filing offer to
purchase the subject property. Further, alleged comparable properties are, in fact, not comparable
and are inadmissible if the alleged comparable property is not similar in kind, character, use,
zoning, and locale. See Board of Trustees of University of Illinois v. Shapiro, 343 Ill.App.3d 943,
799 N.E.2d 383, 278 Ill.Dec. 665 (1st Dist. 2003); DuPage Bank & Trust Co. v. Property Tax
Appeal Board of Illinois Department of Revenue, 151 Ill.App.3d. 624, 502 N.E.2d 1250, 104
Ill.Dec. 590 (2d Dist. 1986); Department of Conservation of State of Illinois v. Strassheim, 92
Ill.App.3d 689, 415 N.E.2d 1346, 48 Ill.Dec. 62 (2d Dist. 1981).
If the attorney can be successful in a dismissal later in the proceedings, this would, of course,
necessitate the refiling by the condemnor and the use of a new valuation date. See Trustees of
Schools of Township No. 37 v. First National Bank of Blue Island, 49 Ill.2d 408, 274 N.E.2d 56
(1971); Department of Public Works & Buildings of State of Illinois v. American National Bank
& Trust Co., 36 Ill.App.3d 439, 343 N.E.2d 686 (2d Dist. 1976); Sanitary Dist. of Chicago v.
Chapin, 226 Ill. 499, 80 N.E. 1017 (1907); Department of Transportation of State of Illinois v.
Schien, 50 Ill.App.3d 73, 365 N.E.2d 702, 8 Ill.Dec. 464 (4th Dist. 1977), aff’d, 72 Ill.2d 287
(1978).
When the condemnor uses the quick-take procedure, the condemnee is entitled to interest on
the difference between the amount found to be preliminary just compensation and the amount
found to be final just compensation. Although quick-take is treated extensively in Chapter 4 of
this handbook, it should be noted that the condemnee’s attorney may want to establish the
applicable interest rate. The issue of interest has been refined in Illinois State Toll Highway
Authority v. American National Bank & Trust Company of Chicago, 162 Ill.2d 181, 642 N.E.2d
1249, 205 Ill.Dec. 132 (1994).
IX. [3.21] SIGNIFICANT DECISIONS
Forest Preserve District of DuPage County v. First National Bank of Franklin Park, 2011 IL
110759, 961 N.E.2d 775, 356 Ill.Dec. 386, held that a taking occurs on the date that the
condemnor (a) deposits the amount of compensation that has been ascertained and awarded and
(b) acquires title and the right to possess the property. The court also noted that the Fifth
Amendment mandates that a land owner be awarded just compensation, which is the fair market
value of the property on the date of the taking. Potential conflict exists between the cases that
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PLEADINGS AND PROCEDURES BY THE CONDEMNEE
§3.22
hold that the value of the property taken is to be determined as of the date of the filing of the
complaint and the constitutional mandate, as stated in this case, to pay just compensation (the fair
market value of the property taken) as of the date of the taking.
Public Building Commission of Chicago v. Yellen, 2013 IL App (1st) 112638, ¶33, 986
N.E.2d 706, 369 Ill.Dec. 393, quoting Department of Public Works & Buildings v. Metropolitan
Life Insurance Co., 42 Ill.App.2d 378, 192 N.E.2d 607, 615 (1st Dist. 1963), held that the fair
market value of the property is ascertained as of the date of the filing of the condemnation action
and does not include “any element resulting subsequently to or because of the taking.” This case
also discusses leasehold values.
Village of North Pekin v. Adams Outdoor Advertising, 2013 IL App (3d) 120249-U, held that
a local ordinance of North Pekin is invalid because it mandates the removal of billboards without
just compensation to the sign owners and is contrary to the Eminent Domain Act.
Pedigo v. Flood ex. rel. People, 2013 IL App (4th) 120023-U, discusses the difference
between a taking of property giving rise to a claim for just compensation under the EDA and a
damaging of property that does not give rise to a claim under the EDA.
Village of Bellwood v. American National Bank & Trust Company of Chicago, 2011 IL App
(1st) 093115, 952 N.E.2d 148, 351 Ill.Dec. 775, permitted the condemnor to abandon the eminent
domain proceedings after a settlement agreement had been reached in the pending lawsuits but
before the condemnor took possession of the properties, as the condemnor had a statutory right to
abandon eminent domain proceedings and the settlement agreement did not constitute a waiver of
the statutory right.
Village of Algonquin v. Lowe, 2011 IL App (2d) 100603, 954 N.E.2d 228, 352 Ill.Dec. 368,
held that an eminent domain action is not an “in rem” proceeding and the court must have
personal jurisdiction over the parties having an interest in the property.
X.
[3.22] FINAL CONCERNS
Efforts should be made throughout the case to remain prepared and to review the case
continuously. A change in plans with inactivity on the part of the condemnor could result in
a. a change in valuation date (Department of Transportation v. Catholic Diocese of
Belleville, 63 Ill.App.3d 683, 379 N.E.2d 1343, 20 Ill.Dec. 275 (5th Dist. 1978); 735
ILCS 30/10-5-60); or
b. even a dismissal (Department of Transportation v. Schien, 72 Ill.2d 287, 381 N.E.2d 241,
21 Ill.Dec. 163 (1978)).
Other efforts should be made to make certain that the condemnor complies with discovery
requests. See Department of Public Works & Buildings of State of Illinois v. Roehrig, 45
Ill.App.3d 189, 359 N.E.2d 752, 3 Ill.Dec. 893 (5th Dist. 1976).
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§3.22
ILLINOIS EMINENT DOMAIN PRACTICE
As in any case, an attorney also might consider a stipulation and agreement as to an issue in
the case to expedite the trial. City of Crystal Lake v. LaSalle Nat’l Bank, 121 Ill.App.3d 346, 459
N.E.2d 643, 76 Ill.Dec. 728 (2d Dist. 1984).
In County of St. Clair v. Wilson, 284 Ill.App.3d 79, 672 N.E.2d 27, 219 Ill.Dec. 712 (5th Dist.
1996), the court reversed the trial court’s refusal to admit into evidence bona fide offers to
purchase adjacent property when all of the appraisers testified that such offers are the kind of data
that appraisers would rely on in preparing appraisals. The presence of comparable sales data does
not automatically exclude evidence of offers to purchase on the issue of just compensation. The
court also noted that the prior employment of the appraiser may be admissible. See also
Department of Transportation v. Beeson, 137 Ill.App.3d 908, 485 N.E.2d 511, 92 Ill.Dec. 700 (2d
Dist. 1985) (adopting Federal Rules of Evidence 703 and 705).
In City of Quincy, Illinois v. Diamond Construction Co., 327 Ill.App.3d 338, 762 N.E.2d 710,
715, 261 Ill.Dec. 141 (4th Dist. 2002), the appellate court affirmed the trial court’s decision to
exclude a second appraisal on the subject tract that considered that the asphalt plant on the
property was in the process of being moved because of the taking, citing “principles of
fundamental fairness.” Consider that as a basis, if possible!
PRACTICE POINTERS

Use your imagination. You may not always be successful in advancing certain theories,
but why not try? See People ex rel. Department of Transportation v. Birger, 155
Ill.App.3d 130, 507 N.E.2d 1321, 107 Ill.Dec. 952 (5th Dist. 1987) (number of interesting
factual materials offered into evidence); Department of Transportation of State of Illinois
v. Gass, 165 Ill.App.3d 562, 519 N.E.2d 90, 116 Ill.Dec. 500 (5th Dist. 1988)
(unsuccessful attempt made to include adjoining leaseholds in counterclaim); Department
of Transportation of State of Illinois v. Keller, 149 Ill.App.3d 829, 500 N.E.2d 982, 102
Ill.Dec. 881 (5th Dist. 1986) (horseradish was deemed specialty crop and income
approach thereby admissible); Department of Transportation v. Shell Oil Co., 156
Ill.App.3d 304, 509 N.E.2d 596, 108 Ill.Dec. 900 (1st Dist. 1987) (decrease in volume of
gasoline sold at service station was admissible not as to raw data but as to foundation for
decrease in market value).

If you continue to prepare your case the same way you would prepare one in which a
large personal injury claim is at stake, the condemnee will be adequately represented.
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PLEADINGS AND PROCEDURES BY THE CONDEMNEE
§3.24
XI. APPENDIX — FORMS
A. [3.23] Motion for Production of Witnesses, Documents, Etc.
[Caption]
NOTICE PURSUANT TO SUPREME COURT RULE 237
TO:
DEPARTMENT OF TRANSPORTATION
AND: Special Assistant Attorney General
[address]
Comes now the defendant, [defendant’s name], by and through [his] [her] attorney,
[attorney’s name], and pursuant to Rule 237 directs that the plaintiff produce at the hearing
on the Motion for Immediate Vesting the following: names of people at the Department
with knowledge of the case; all books, documents, and records relating to the construction
plans for the proposed improvement; all books, documents, records, transcripts, and
memoranda relating to any and all public hearings held on said proposed improvement; all
books, documents, and records relative to the preparation of the Environmental Impact
Statement for said project and all of its drafts; all invoices and bids on the preparation of
the Environmental Impact Statement for the proposed improvement; a list of the names
and addresses of all parties with whom the plaintiff has settled for the acquisition of
properties for the proposed improvements, including the amounts paid and the acreages
acquired; and the names and addresses of all landowners from whom the plaintiff seeks to
acquire property for the proposed improvement and the acreages to be acquired.
______________________________________
[defendant]
By:
______________________________________
[attorney]
[address]
B. [3.24] Traverse and Motion To Dismiss
[Caption]
TRAVERSE AND MOTION TO DISMISS
Comes now the defendant herein, [defendant’s name], by and through [his] [her]
attorney, [attorney’s name], and for [his] [her] Traverse and Motion To Dismiss states:
1. That the plaintiff is not vested with authority to acquire the property of the
defendant by proceeding in eminent domain.
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§3.25
ILLINOIS EMINENT DOMAIN PRACTICE
2. That the property sought to be acquired in this proceeding is not necessary or
convenient for the purpose for which it is sought to be taken.
3. That the amount of property sought to be taken by the plaintiff herein is in excess of
the plaintiff’s needs.
4. That the plaintiff does not seek to use the property sought to be acquired by this
proceeding for a public purpose.
5. That there has been no bona fide attempt to agree with the defendant as to the just
compensation and damages to be paid for the property sought to be taken.
6. That the project for which the plaintiff seeks to acquire the lands of the defendant is
not necessary.
7. That there has been no hearing on the necessity of the improvement.
8. That there has been no public hearing on the legitimacy of locating the
improvement on the location as designated by the plaintiff.
______________________________________
[defendant]
By:
______________________________________
[attorney]
[address]
C. [3.25] Counterclaim
[Caption]
COUNTERCLAIM
Comes now the defendant, [defendant’s name], by and through [his] [her] attorney,
[attorney’s name], and for [his] [her] Counterclaim represents to the court as follows:
1. The real property legally described in the Complaint To Condemn is a part only of
the real estate, the legal description for which is as follows:
[legal description]
2. The whole tract, as described above, is owned and used in common with the
property legally described in the Complaint To Condemn.
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PLEADINGS AND PROCEDURES BY THE CONDEMNEE
§3.26
3. The taking of the real property by the plaintiff will result in damages to the
remainder of the real property not taken.
WHEREFORE, the defendant prays that [his] [her] damages to the remainder of the
real property not taken be assessed in these proceedings against the plaintiff and that a
judgment for damages and costs of suit be entered for the defendant.
______________________________________
[defendant]
By:
______________________________________
[attorney]
[address]
D. [3.26] Motion To Open and Close
[Caption]
MOTION TO OPEN AND CLOSE
Comes now the defendant, [defendant’s name], by and through [his] [her] attorney,
[attorney’s name], and moves this Honorable Court for an order permitting the defendant to
open and close during the trial of this cause, and in support thereof, states:
1. That the defendant has filed a counterclaim as to lands not taken.
2. That, pursuant to Department of Public Works & Buildings of State of Illinois v.
Roehrig, 45 Ill.App.3d 189, 359 N.E.2d 752, 3 Ill.Dec. 893 (5th Dist. 1976), Department of
Transportation ex rel. State of Illinois v. First National Bank of Arcola, 241 Ill.App.3d 601,
609 N.E.2d 389, 182 Ill.Dec. 86 (4th Dist. 1993), and Department of Business & Economic
Development v. Brummel, 52 Ill.2d 538, 288 N.E.2d 392 (1972), subject to the discretion of
the court, the landowner when a counterclaim has been filed should be permitted to open
and close inasmuch as the landowner has the burden of proof on the question of damages to
the remainder.
______________________________________
[defendant]
By:
______________________________________
[attorney]
[address]
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§3.27
ILLINOIS EMINENT DOMAIN PRACTICE
E. [3.27] Motion for View of Premises
[Caption]
MOTION FOR VIEW OF PREMISES
Comes now the defendant, [defendant’s name], by and through [his] [her] attorney,
[attorney’s name], and pursuant to 735 ILCS 30/10-5-45, moves this Honorable Court for a
view of the premises during the trial of this cause, and in support thereof states:
1. That 735 ILCS 30/10-5-45 provides that the jury “shall, at the request of either
party, go upon the land sought to be taken or damaged and examine the same.”
2. That the defendant desires a view of [his] [her] property pursuant to that section.
WHEREFORE, the defendant prays that this Honorable Court enter an Order
directing a view of the premises.
______________________________________
[defendant]
By:
______________________________________
[attorney]
[address]
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4
Quick-Take
VALERIE M. MOEHLE
Moehle, Swearingen & Assoc., Ltd.
Pekin
®
©COPYRIGHT 2016 BY IICLE .
4—1
ILLINOIS EMINENT DOMAIN PRACTICE
I. [4.1] Scope of Chapter
II. [4.2] Purpose of Quick-Take
III. Who Has Quick-Take Powers?
A. [4.3] Source of Quick-Take Powers
B. [4.4] Entities Granted Quick-Take Powers
C. [4.5] Limits on Quick-Take Powers
IV. How Is Quick-Take Commenced?
A.
B.
C.
D.
E.
[4.6] Time for Filing of Motion
[4.7] Contents of Motion
[4.8] Setting the Hearing
[4.9] Service of Motion and Notice of Hearing
[4.10] Necessary Proofs at Quick-Take Hearing
1. [4.11] Plaintiff’s Right To Acquire the Property by Condemnation
a. [4.12] Plaintiff Has Authority To Acquire the Property by Condemnation
b. [4.13] The Property Is Subject to the Right or Authority of Condemnation
c. [4.14] The Right Is Being Exercised Properly
2. [4.15] Necessity for Use of Quick-Take Procedures
3. [4.16] Amount of Preliminary Just Compensation
V. [4.17] Order Fixing Preliminary Just Compensation
VI. [4.18] Deposit of Funds and Vesting of Title
VII. [4.19] Withdrawal of Preliminary Just Compensation
VIII. Ancillary Issues
A.
B.
C.
D.
E.
4—2
[4.20]
[4.21]
[4.22]
[4.23]
[4.24]
Discovery
View of Premises at Quick-Take
Interest
Valuation Date
Alternative to Quick-Take
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QUICK-TAKE
IX. Appeals
A. [4.25] Appealable Issues
B. [4.26] Stay Pending Appeal
C. [4.27] Dismissal of Complaint on Appeal
X. Subsequent Proceedings
A. [4.28] Matters at Quick-Take Not Admissible at Trial
B. [4.29] Dismissal or Abandonment by the Plaintiff
XI. Sample Pleadings and Documents
A.
B.
C.
D.
E.
F.
G.
H.
[4.30]
[4.31]
[4.32]
[4.33]
[4.34]
[4.35]
[4.36]
[4.37]
Sample Motion for Immediate Vesting of Title
Sample Publication Notice
Sample Order Setting Hearing on Motion for Immediate Vesting of Title
Sample Order Fixing Preliminary Just Compensation
Sample Treasurer’s Receipt
Sample Order Vesting Title
Sample Motion To Withdraw Preliminary Just Compensation
Sample Order Authorizing Withdrawal of Preliminary Just Compensation
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
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§4.1
ILLINOIS EMINENT DOMAIN PRACTICE
I. [4.1] SCOPE OF CHAPTER
The statutory method to obtain early possession of property in a condemnation action is
referred to as “quick-take.” Quick-take is authorized by §20-5-5(b) of the Eminent Domain Act
(EDA), 735 ILCS 30/1-1-1, et seq., which provides:
[T]he plaintiff, at any time after the complaint has been filed and before judgment is
entered in the proceeding, may file a written motion requesting that, immediately or
at some specified later date, the plaintiff either: (i) be vested with the fee simple title
(or such lesser estate, interest, or easement, as may be required) to the real
property, or a specified portion of that property, which is the subject of the
proceeding, and be authorized to take possession of and use the property; or (ii)
only be authorized to take possession of and to use the property, if possession and
use, without the vesting of title, are sufficient to permit the plaintiff to proceed with
the project until the final ascertainment of compensation. 735 ILCS 30/20-5-5(b).
This chapter discusses the procedure and the proofs required to use quick-take.
II. [4.2] PURPOSE OF QUICK-TAKE
Quick-take is intended to be quick.
In recognizing the fact that the greatest potential for delay in eminent domain is
ascertaining the value of the property to be taken, the legislature designed quicktake proceedings to avoid delay in needed construction. The purpose of the
proceeding is to pass possession and title in the condemnor prior to final
determination of just compensation and yet protect the interest of the condemnee.
City of Chicago v. First Bank of Oak Park, 178 Ill.App.3d 321, 533 N.E.2d 424, 426, 127
Ill.Dec. 552 (1st Dist. 1988).
See also Department of Public Works & Buildings v. Dust, 19 Ill.2d 217, 166 N.E.2d 36, 39
(1960).
“Quick,” of course, can be a relative term. The larger the project, the earlier the public body
should commence quick-take proceedings to complete all acquisitions and secure possession in
advance of the letting date for the construction contract. Court calendars, attorney and witness
schedules, the time needed for the owner to vacate the property, and the time it takes to receive
preliminary compensation checks from the public body can also necessitate that quick-take be
commenced far in advance of the letting date for the construction contract to have sufficient time
to acquire title and secure possession.
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QUICK-TAKE
§4.5
III. WHO HAS QUICK-TAKE POWERS?
A. [4.3] Source of Quick-Take Powers
Eminent domain power is inherent in the state, with limits placed on the power by the
Constitution. This power can be exercised only as prescribed by the legislature. Illinois State
Trust Co. v. St. Louis, I.M. & S. Ry., 208 Ill. 419, 70 N.E. 357, 358 (1904); Department of Public
Works & Buildings v. Schlich, 359 Ill. 337, 194 N.E. 587, 590 (1935); ILL.CONST. art. I, §15.
The legislature has adopted the quick-take statute to provide a special procedure to expedite
condemnation within the confines of the Constitution. A predecessor statute similar to the present
quick-take statute has been held constitutional. Department of Public Works & Buildings v. Butler
Co., 13 Ill.2d 537, 150 N.E.2d 124 (1958). See also Central Illinois Public Service Co. v. Gibbel,
65 Ill.App.3d 890, 382 N.E.2d 846, 22 Ill.Dec. 456 (4th Dist. 1978).
B. [4.4] Entities Granted Quick-Take Powers
Because the quick-take power may be exercised only as permitted by the legislature, it must
be specifically granted by the legislature, and such grants are strictly construed. Department of
Transportation of State of Illinois ex rel. People v. V.I.P. Manor, Inc., 117 Ill.App.3d 137, 453
N.E.2d 44, 46, 72 Ill.Dec. 739 (5th Dist. 1983). It is therefore important for both the plaintiff and
the defendant to identify the specific statutory section under which the power is granted.
Historically, quick-take powers have been granted by the legislature for broad purposes, such as
to the State of Illinois, the Illinois State Toll Highway Authority, and the St. Louis Metropolitan
Area Airport Authority for highway purposes. 735 ILCS 30/25-7-103.1. The legislature has also
granted powers to special groups or specific public bodies for limited purposes, such as local road
projects, waste treatment facilities, municipal airports, waterway maintenance, and numerous
other projects. See, e.g., 735 ILCS 30/25-7-103.5, et seq. The legislature has granted
condemnation and quick-take powers for redevelopment purposes, and a general grant of quicktake power is given to home-rule municipalities for properties in an enterprise zone. 735 ILCS
30/25-7-103.13. Specific grants have also been given for specific tax-increment financing
districts or redevelopment projects. See, e.g., 735 ILCS 30/25-7-103.62, 30/25-7-103.68, 30/25-7103.69. Additional grants are contained outside the quick-take statute. See, e.g., 70 ILCS 520/8,
3205/12; 735 ILCS 30/15-5-1, et seq., contains a list of all eminent domain statutes and notes if
quick-take powers are included. These special grants have survived challenges to their
constitutionality as “special legislation.” See, e.g., City of Chicago v. Boulevard Bank National
Ass’n, 293 Ill.App.3d 767, 688 N.E.2d 844, 854, 228 Ill.Dec. 146 (1st Dist. 1997).
Under the statutory organization, grants prior to the 2007 Eminent Domain Act are located
under 735 ILCS 30/25-7-103.1, et seq., and grants after the Eminent Domain Act are located
under 735 ILCS 30/25-5-5, et seq.
C. [4.5] Limits on Quick-Take Powers
Some landowners are protected from immediate use of quick-take powers. If the State of
Illinois, the Illinois State Toll Highway Authority, a sanitary district, the St. Louis Metropolitan
Area Airport Authority, or the Board of Trustees of the University of Illinois seeks to acquire the
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
4—5
§4.6
ILLINOIS EMINENT DOMAIN PRACTICE
property of a common carrier engaged in interstate commerce or a public utility subject to the
Illinois Commerce Commission (ICC) by quick-take, it must first obtain approval of the ICC. 735
ILCS 30/20-5-5. The requirement of preapproval from the ICC prior to condemnation in 735
ILCS 30/10-5-10(g) and the requirements for contents of the motion for quick-take recited in §205-5 do not mirror this language.
IV. HOW IS QUICK-TAKE COMMENCED?
A. [4.6] Time for Filing of Motion
A quick-take motion can be filed only in an existing condemnation case. 735 ILCS 30/20-55(b). The quick-take motion, usually titled a “Motion for Immediate Vesting of Title” (see the
sample in §4.30 below), may be filed at any time after the complaint, including immediately
thereafter. Id. If the circuit clerk’s office’s file stamp includes the date and the time, the plaintiff
should make certain that one minute has passed between the filing of the complaint and the
motion so that no question of timing can arise.
B. [4.7] Contents of Motion
The contents of the motion for immediate vesting of title are dictated by the legislature in 735
ILCS 30/20-5-5:
1. The motion must include an accurate description of the property. The property must be
“described with reasonable certainty.” Forest Preserve Dist. of Cook County v. Lehmann Estate,
Inc., 388 Ill. 416, 58 N.E.2d 538, 540 (1944). At a minimum, this should include the legal
description by subdivision or metes and bounds. This is the same legal description used in the
complaint unless quick-take is needed or authorized for only a lesser tract. It is also helpful, but
not required, to include a common address, property identification number, or survey.
2. The motion must include the estate or interest sought to be acquired. This might be fee
simple, right-of-way, permanent easement or temporary easement for a set time, or any other
estate or interest recognized by law.
3. The motion must also state the formally adopted schedule or plan of operation for the
execution of the plaintiff’s project. This schedule or plan may be appended as an exhibit to the
motion and explained generally within the body of the motion. See Department of Transportation
of State of Illinois ex rel. People v. Collins, 69 Ill.App.3d 269, 387 N.E.2d 6, 10, 25 Ill.Dec. 549
(3d Dist. 1979). In cases filed for the Illinois Department of Transportation (IDOT), some courts
have permitted the plaintiff to file with the court one complete plan (covering the entire state of
Illinois) and serve the parties with only the relevant excerpts from the plan relating to the project
at issue. If, however, a party requests the entire plan, the plaintiff should provide it immediately,
if practical or not unduly burdensome. In City of Chicago v. St. John’s United Church of Christ,
404 Ill.App.3d 505, 935 N.E.2d 1158, 343 Ill.Dec. 930 (2d Dist. 2010), the court held that the city
was not required to attach the schedule for the entire O’Hare modernization project (a massive,
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multistage project) but, instead, could supply the proposed schedule for that part of the project
requiring the property being condemned.
4. The motion must discuss the situation of the property to which the motion relates with
respect to the schedule or plan. In other words, the motion should state that the property is
necessary for the project. It is also helpful to state the specific use intended for the property, such
as construction of a school building, new road construction, grading and shaping, or equipment
storage and staging during the project.
5. The motion must state the necessity for taking the property by quick-take. The plaintiff
should state that it has been unable to acquire the property by negotiation and what the impact of
further delay in acquisition will be, such as an increase in construction costs and a delay in the
elimination of traffic hazards.
6. For property subject to Interstate Commerce Commission approval, the plaintiff must
state that such approval has been obtained, and a certified copy of the order must be attached.
See §4.30 below for a sample quick-take motion.
C. [4.8] Setting the Hearing
The hearing must be set at least five days after the filing of the motion, and the statute
requires that the “court” set the date. 735 ILCS 30/20-5-10(a). Thus, most condemnation
attorneys, in addition to a notice of hearing, also prepare an order setting the hearing on the
motion for immediate vesting of title. See the sample in §4.32 below. This order is presented ex
parte to the court after obtaining a date and time from the scheduling clerk.
If there are more than a few parcels involved in the project, the plaintiff’s attorney should
take time before the cases are filed to explain the volume of upcoming filings and the scheduling
needs to the scheduling clerk so that any scheduling issues may be worked out before the orders
are presented to the court.
D. [4.9] Service of Motion and Notice of Hearing
Section 20-5-10(a) of the Eminent Domain Act states that the court “shall require due notice
to be given to each party to the proceeding whose interests would be affected by the taking
requested, except that any party who has been or is being served by publication and who has not
entered his or her appearance in the proceeding need not be given notice unless the court so
requires, in its discretion and in the interests of justice.” 735 ILCS 20/5-10(a). In the eminent
domain context, due process requires only a postdeprivation hearing, which can be provided in an
inverse condemnation case brought by the landowner. Department of Public Works & Buildings
v. Butler Co., 13 Ill.2d 537, 150 N.E.2d 124, 130 (1958); Times Mirror Cable Television of
Springfield, Inc. v. First National Bank of Springfield, 221 Ill.App.3d 340, 582 N.E.2d 216, 220,
164 Ill.Dec. 8 (4th Dist. 1991); Muscarello v. Village of Hampshire, 644 F.Supp. 1016, 1017 –
1019 (N.D.Ill. 1986); Bieneman v. City of Chicago, 662 F.Supp. 1297, 1301 (N.D.Ill. 1987).
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Thus, compliance with the notice provisions of the quick-take statute exceeds the requirements of
due process.
Therefore, it appears that notice of the quick-take hearing may be served in any manner
permitted for the service of motions and notices by the Civil Practice Law, 735 ILCS 5/2-101, et
seq., Illinois Supreme Court Rule 11, and local court rule. A party who has been or is being
served by publication (and who has not entered his or her appearance) does not have to be given
notice of the hearing unless required by the court. 735 ILCS 30/20-5-10(a); Butler, supra (failure
to give notice to publication defendant is not violation of due process). See §4.31 below for a
sample publication notice that includes a notice of the quick-take hearing.
However, some trial courts have required proof of jurisdiction over all parties prior to
proceeding to a quick-take hearing. This requires that the complaint and summons in the
underlying case have been served according to statute, either personally or by publication. If there
is difficulty obtaining prompt service on a party, the plaintiff can use the procedure provided in
735 ILCS 5/2-203.1 to obtain a special order of the court for service. See In re Marriage of
Schmitt, 321 Ill.App.3d 360, 747 N.E.2d 524, 254 Ill.Dec. 484 (2d Dist. 2001). It has been held
that such an order can only be prospective in nature. See Hotel Employees & Restaurant
Employees International Union Welfare Fund v. Printer’s Row, LLC, No. 06 C 4630, 2008 WL
5142187 (N.D.Ill. Dec. 5, 2008).
It can be advantageous to file the motion immediately after the complaint so that the
documents can be served together, thereby saving the cost and extra effort of serving the motion
while also eliminating issues of proper service of the motion or proper notice.
If the motion is not served with the summons and complaint, many plaintiffs’ attorneys
choose to serve it by certified and regular mail, again to eliminate any issues of notice and
service. It is also a good idea to include a copy of the complaint with the mailing of the motion if
the complaint has not yet been served.
The goal of the plaintiff in quick-take is a prompt and fair proceeding that will not be
overturned on appeal. A few extra precautions at the notice stage can help accomplish that result.
E. [4.10] Necessary Proofs at Quick-Take Hearing
Normally, a quick-take hearing is the first hearing held in the case. Thus, the plaintiff must
prove up its complaint at the hearing (Department of Public Works & Buildings v. Dust, 19 Ill.2d
217, 166 N.E.2d 36 (1960)) and then present evidence as to just compensation. Under some
circumstances, the prove-up may have occurred earlier, and the only issue for the quick-take
hearing is just compensation. Sections 4.11 – 4.16 below, however, assume that the quick-take
hearing is the first hearing in the case.
The 2007 enactment of the Eminent Domain Act has created some special proofs and
requirements for certain types of condemnations. Any special proofs or prerequisites for
condemnation of a parcel must also be met at the quick-take hearing. Examples of some of these
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requirements are included in §§4.11 – 4.16 below, but the examples are not intended to be
exhaustive.
At the quick-take hearing, the plaintiff must make a prima facie case that (1) it has a right to
acquire the property by condemnation, (2) use of the quick-take procedure is necessary, and (3)
establishes the amount of preliminary just compensation. 735 ILCS 30/20-5-10(b), 30/20-5-10(c).
See Department of Transportation v. First Galesburg National Bank & Trust Co., 141 Ill.2d 462,
566 N.E.2d 254, 257 – 258, 152 Ill.Dec. 567 (1990). This is a three-stage proceeding in which the
plaintiff must prove each stage before moving on to the next. Id. The burden of proof in a quicktake proceeding is the same as in a condemnation proceeding; no heightened burden is imposed
due to the expedited nature of the proceeding. Id. However, the EDA may require a heightened
level of proof in the underlying condemnation proceeding, which would appear to carry over to
the quick-take proceeding. See, e.g., 735 ILCS 30/5-5-5(c).
1. [4.11] Plaintiff’s Right To Acquire the Property by Condemnation
The plaintiff’s right to acquire the property by condemnation includes three elements: (a) the
plaintiff has authority to acquire the property by condemnation; (b) the property is subject to the
right or authority of condemnation; and (c) the right or authority is being properly exercised. 735
ILCS 30/20-5-10(b); Department of Public Works & Buildings v. Dust, 19 Ill.2d 217, 166 N.E.2d
36, 39 (1960). See §§4.12 – 4.14 below.
After the plaintiff has presented its proof on these issues, the plaintiff should request a finding
that it has proved that it has the authority to exercise the right of condemnation. While the
plaintiff often tenders the witness for cross-examination at this point, such a tender should be
required only if a traverse has been filed; otherwise, the plaintiff may find itself in a de facto
traverse hearing without advance notice or preparation. This issue was presented in People ex rel.
Department of Transportation v. Kotara, L.L.C., 379 Ill.App.3d 276, 884 N.E.2d 1235, 318
Ill.Dec. 964 (3d Dist. 2008). The defendant filed its traverse the day before the quick-take
hearing; the trial court refused to hear the traverse until proper notice was given to the plaintiff,
and the quick-take proceeded as scheduled. The trial court then prohibited the defendant from
cross-examination on issues raised in its traverse, including the issue of whether the plaintiff
negotiated in good faith. The appellate court reversed this ruling, finding that because good-faith
negotiations are an element of the plaintiff’s proofs, the defendant should have been permitted to
cross-examine on this issue. The appellate court did not discuss the issue of surprise or the
underlying legal principles of proof of a prima facie case. Cf. Commonwealth Edison Co. v.
Danekas, 104 Ill.App.3d 907, 433 N.E.2d 736, 740, 60 Ill.Dec. 694 (2d Dist. 1982); Department
of Business & Economic Development v. Brummel, 52 Ill.2d 538, 288 N.E.2d 392 (1972) (court
considers element of surprise when determining whether party is prejudiced by last-minute
change in order of proceeding).
a. [4.12] Plaintiff Has Authority To Acquire the Property by Condemnation
The court may take judicial notice of the authority to exercise the right of eminent domain
when granted by statute, and no other proof is needed. Department of Public Works & Buildings
v. Dust, 19 Ill.2d 217, 166 N.E.2d 36, 40 (1960). However, eminent domain statutes are in
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derogation of the rights of citizens and are strictly construed. Department of Public Works &
Buildings v. Ryan, 357 Ill. 150, 191 N.E. 259, 261 – 262 (1934); County of DeKalb v. Smith, 213
Ill.App.3d 775, 572 N.E.2d 379, 382, 157 Ill.Dec. 310 (2d Dist. 1991). The plaintiff is not
required to allege or to place the authorizing resolution or ordinance into evidence, but the
property owner, on a traverse, can question the authority of the plaintiff to proceed under the
statute, and if the ordinance or resolution is not produced, the court will find a lack of authority.
City of Mound City v. Mason, 262 Ill. 392, 104 N.E. 685, 686 (1914).
b. [4.13] The Property Is Subject to the Right or Authority of Condemnation
Only private property is subject to the right of condemnation. ILL.CONST. art. I, §15;
Pittsburgh, Ft. W. & C. Ry. v. Sanitary Dist. of Chicago, 218 Ill. 286, 75 N.E. 892, 895 (1905).
The plaintiff should prove up, through a title commitment and other evidence, the ownership and
other interests in the property.
In MCI WorldCom Communications, Inc. v. Metra Commuter Rail Division of Regional
Transportation Authority, 337 Ill.App.3d 576, 786 N.E.2d 621, 272 Ill.Dec. 82 (2d Dist. 2003),
MCI WorldCom contended that §4 of the Telephone Company Act, 220 ILCS 65/0.01, et seq.,
granted it authority to condemn railroad property regardless of whether the railroad was a private
or public entity. The court held that any power to condemn public property must be expressly
granted by statute and found no such express grant in the Telephone Company Act.
One of the apparent impetuses for the Eminent Domain Act was the continued blurring of the
line between public and private use. This gray area may gravitate to the private property analysis,
as these public-private entities find themselves the subject of eminent domain suits. See, e.g.,
Illinois Clean Energy Community Foundation v. Filan, 392 F.3d 934 (7th Cir. 2004) (Illinois
Clean Energy Community Foundation was private entity, not public entity, and thus any attempt
by state to confiscate funds of Foundation would be violation of takings clause).
c. [4.14] The Right Is Being Exercised Properly
Proof that the right of eminent domain is being exercised properly requires proof of the
following:
The use is a public use. Department of Public Works & Buildings v. Dust, 19 Ill.2d 217, 166
N.E.2d 36, 40 (1960); Southwestern Illinois Development Authority v. National City
Environmental, L.L.C., 199 Ill.2d 225, 768 N.E.2d 1, 263 Ill.Dec. 241 (2002). While the court
makes the determination of public use, great deference is given to the legislative finding of public
purpose. 768 N.E.2d at 8. The elimination of slums and blight for redevelopment is a public use.
768 N.E.2d at 9; Village of Wheeling v. Exchange National Bank of Chicago, 213 Ill.App.3d 325,
572 N.E.2d 966, 157 Ill.Dec. 502 (1st Dist. 1991). The acquisition of land for a gas station near a
toll road is a valid public purpose because it serves the purpose of a limited access road and
provides necessary services to travelers at the access points. Illinois State Toll Highway
Commission v. Eden Cemetery Ass’n, 16 Ill.2d 539, 158 N.E.2d 766, 768 – 769 (1959). However,
the acquisition of land to sell to a private racetrack for a parking lot was not a public purpose
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because the court found no elimination of blight or slums and because the public was not the
primary beneficiary of the taking. National City, supra, 768 N.E.2d at 9. The court, in this case,
took a more activist approach and appeared to give less deference to the legislative finding of a
public use.
The public-use analysis has gained more public scrutiny as the public, legislatures, and courts
have reacted to the Supreme Court’s decision in Kelo v. City of New London, Connecticut, 545
U.S. 469, 162 L.Ed.2d 439, 125 S.Ct. 2655 (2005). A full discussion of Kelo and its implications
is beyond the scope of this chapter; however, it should be noted that the Eminent Domain Act has
different types of proofs for various levels of public use. Thus, proving the type of public use at
issue will determine what other proofs are necessary in the case. Examples from the EDA are as
follows:
Public ownership and control. The plaintiff “must prove that (i) the acquisition of the
property is necessary for a public purpose and (ii) the acquired property will be owned and
controlled by the condemning authority or another governmental entity.” [Emphasis added.] 735
ILCS 30/5-5-5(b). The public-ownership component usually has been presumed in traditional
condemnations for roadways, fire stations, etc. The statute now, however, would require proof of
the final intended owner. The benefit of proving the public ownership and control under this
section is that the plaintiff then avoids many of the requirements and burdens imposed by the
2007 changes to eminent domain law.
Private ownership or control or both. If the public use involves private ownership or control
or both, then the plaintiff “must prove by clear and convincing evidence that the acquisition of the
property for private ownership or control is (i) primarily for the benefit, use, or enjoyment of the
public and (ii) necessary for a public purpose.” [Emphasis added.] 735 ILCS 30/5-5-5(c). This
heightened level of proof is not required if the acquisition falls under subsections (a-5), (a-10),
(d), (e), or (f) of §5-5-5. The Act contains various rebuttable presumptions to aid in the proofs
required by subsection (c). By exempting itself from subsection (c), the plaintiff, however, does
not eliminate the necessity for special proofs; it is then required to follow the special-proof
requirements of the subsection under which it is proceeding.
The location is a proper location. See Department of Public Works & Buildings of State of
Illinois ex rel. People v. Neace, 13 Ill.App.3d 982, 301 N.E.2d 509, 512 (2d Dist. 1973). Cf.
Department of Public Works & Buildings v. Schlich, 359 Ill. 337, 194 N.E. 587 (1935). See also
Department of Transportation v. Sunnyside Partnership, L.P., 337 Ill.App.3d 322, 785 N.E.2d
1018, 1024, 271 Ill.Dec. 824 (5th Dist. 2003) (court found property necessary for intended
purpose and refused to review alternate plans considered and rejected by Illinois Department of
Transportation).
The amount of land taken is not excessive. The condemning authority is “permitted a large
discretion in determining for itself the amount of land to be taken” (City of Chicago v. Vaccarro,
408 Ill. 587, 97 N.E.2d 766, 772 (1951)), and “the court will not inquire into the extent to which
the property is necessary for such use unless it appears that the quantity of property taken is
grossly in excess of the amount necessary for the use” (Smith v. Claussen Park Drainage & Levee
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Dist., 229 Ill. 155, 82 N.E. 278, 281 (1907)). See People ex rel. Director of Finance v. Young
Women’s Christian Association of Springfield, 86 Ill.2d 219, 427 N.E.2d 70, 79 – 80, 55 Ill.Dec.
950 (1981) (court found taking was excessive when only half of land was necessary for valid
public use).
The plaintiff has made a reasonable, good-faith attempt to agree with the owner, the
owner is incapable of consenting to an amount of compensation, the owner is unknown or
cannot be found, or the owner is not a resident of the State of Illinois. 735 ILCS 30/10-5-10.
The plaintiff should introduce its final offer to the landowner. If the plaintiff is the State of
Illinois, the 60-day letter should be introduced. See 735 ILCS 30/10-5-15(d). For discussion, see
Chapter 2 of this handbook. In addition, the State of Illinois should also be prepared to prove that
it complied with the introductory letter requirements of §10-5-15(c).
In Department of Transportation ex rel. People v. 151 Interstate Road Corp., 209 Ill.2d 471,
810 N.E.2d 1, 7, 284 Ill.Dec. 348 (2004), the court stated: “[W]hether a condemnor has
negotiated in good faith bears directly on whether the condemnor was exercising its right of
eminent domain improperly.” The court analyzed the 60-day letter very closely in conjunction
with a later offer by IDOT. The court found that the amount of land to be acquired and the
amount paid per acre changed, resulting in a less advantageous offer to the landowner in the final
offer before trial. The court found that this required a new 60-day letter on the less advantageous
offer; otherwise, there was a failure to negotiate in good faith. Thus, the state needs to be
prepared to explain or justify any discrepancies between the 60-day letter and the information
presented at the quick-take hearing. 810 N.E.2d at 10.
For a discussion of who qualifies as an “owner,” see Department of Transportation, State of
Illinois v. Anderson, 384 Ill.App.3d 309, 892 N.E.2d 116, 322 Ill.Dec. 869 (3d Dist. 2008).
For an analysis by the Supreme Court of a negotiation found to be in good faith as a matter of
law, see Forest Preserve District of DuPage County v. First National Bank of Franklin Park,
2011 IL 110759, 961 N.E.2d 775, 356 Ill.Dec. 386.
The interest sought is proper for the purpose. The plaintiff will typically seek fee simple
title or a temporary or permanent easement. When the public body has determined the interest in
land to be acquired, that determination is binding on the court. But if the legislation is silent, then
the plaintiff must show what interest is needed to serve the public purpose. Department of
Transportation v. First Galesburg National Bank & Trust Co., 141 Ill.2d 462, 566 N.E.2d 254,
258, 152 Ill.Dec. 567 (1990). The landowner cannot compel the condemning body to take more
than the condemning body determines is necessary for its purpose. The landowner’s remedy is a
claim for damages to the remainder. Department of Conservation of State of Illinois ex rel.
People v. Harold’s Farm, Inc., 68 Ill.App.3d 148, 385 N.E.2d 1097, 1101, 24 Ill.Dec. 807 (3d
Dist. 1978).
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2. [4.15] Necessity for Use of Quick-Take Procedures
The plaintiff must prove that the expedited procedure is necessary. “Necessary,” by analogy
to the other uses of “necessary” under the condemnation statutes, means “ ‘expedient,’
‘reasonably convenient,’ or ‘useful to the public.’ ” See Department of Public Works & Buildings
v. Lewis, 411 Ill. 242, 103 N.E.2d 595, 597 (1952). It is best for the plaintiff to use one witness
for this proof who can testify to the following:
a. the formally adopted schedule or plan that was described in or attached to the quick-take
motion — this document can be proved up as a public record;
b. the plan includes acquisition of the property of the defendant, and a portion of the project
will be constructed on the property;
c. the letting date for the construction contract;
d. that the property cannot be acquired by negotiation;
e. that the project will be delayed if the property is not acquired promptly; and
f.
the effect of delay in the acquisition of the property, such as an increased cost of
construction, a possible loss of funding, a delay in the elimination of traffic hazards, or a
delay in the decrease in accidents that the improvements will bring about.
In Department of Transportation v. Sunnyside Partnership, L.P., 337 Ill.App.3d 322, 785
N.E.2d 1018, 1024, 271 Ill.Dec. 824 (5th Dist. 2003), the court found the following irrelevant to
the issue of immediacy: (a) the fact that the project was being let in sections and one portion had
already been let; and (b) the fact that a participating local government had not secured all of its
funding for a larger related project because the project for which the land was being acquired was
necessary regardless of whether the larger project went forward.
There is no requirement that the issues surrounding possession be litigated at this stage of the
proceeding, and, in fact, the proper time for litigation is at the entry of the order vesting title. See
735 ILCS 30/20-5-15(a). However, it has been the practice of plaintiffs and the courts to consider
the evidence at the quick-take hearing if it is generally uncontroverted so that the order vesting
title may be presented ex parte to the court. If there is a complicated issue of possession, then the
plaintiff should follow statutory procedure and give notice of presentation of the order vesting
title to have a hearing on a defendant’s request for postponement of possession under §20-515(b).
Thus, if there are no complicated issues surrounding possession, the plaintiff should state
whether it is requesting immediate possession upon deposit of the quick-take amount or is
requesting postponement of possession. The plaintiff may know that the defendant will need
additional time to relocate or remove some improvements (e.g., growing crops on the land), and
this evidence should be presented at this time. If the plaintiff is concerned about delay in
removing the improvements, it may be necessary to present evidence of the cost to remove the
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improvements and then ask that that amount be held by the treasurer pending proof that the
defendant has removed the improvements.
At the conclusion of its evidence, the plaintiff should tender the witness for crossexamination, since the issue of the necessity of quick-take is raised by the motion, not the
complaint, and thus is not subject to a traverse. Upon completion, the plaintiff should ask the
court for a finding that the necessity of quick-take has been proved.
3. [4.16] Amount of Preliminary Just Compensation
In establishing proof of preliminary just compensation, the plaintiff may use a staff appraiser
or an outside appraiser. This is the same proof that is required at the jury trial, except that if the
matter is not contested at this stage, the appraiser can present minimum testimony needed to
prove the valuation. The Eminent Domain Act requires payment of relocation costs in certain
circumstances. 735 ILCS 30/10-5-62. These costs, however, are not included in the definition of
“value” (735 ILCS 30/10-5-60) and thus should not be a part of the appraiser’s opinion or a proof
at the quick-take hearing. The amount to be paid is the amount that would be paid under the
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA),
Pub.L. No. 91-646, 84 Stat. 1894. 735 ILCS 30/10-5-62. The Illinois Department of
Transportation has adopted policies and procedures for applying the URA. See 92 Ill.Admin.
Code pt. 518.
Plaintiffs often have their appraiser testify to damage to the remainder, even though the
defendant has not yet filed a counterclaim for damages. See Commonwealth Edison Co. v.
Danekas, 104 Ill.App.3d 907, 433 N.E.2d 736, 739, 60 Ill.Dec. 694 (2d Dist. 1982) (it is
defendant’s burden to prove damage to remainder if pleaded by defendant). This is certainly
helpful to expedite an uncontested proceeding or to accomplish a settlement. However, in a
contested proceeding, by including damage to the remainder in the offer and proofs, the plaintiff
can open itself to challenges to its negotiation in good faith based on an item that is the
defendant’s proof. See, e.g., People ex rel. Department of Transportation v. Kotara, L.L.C., 379
Ill.App.3d 276, 884 N.E.2d 1235, 318 Ill.Dec. 964 (3d Dist. 2008).
Since the compensation to be paid is the fair market value of the property as of the date of the
filing of the complaint (§10-5-60), the appraiser should testify as to the value as of that date. If at
all possible, the appraiser should update his or her appraisal to the date of filing prior to attending
the quick-take hearing. Updating the appraisal usually involves another view of the property. This
update can result in an adjustment in value, depending on the age of the appraisal and what has
happened to the property, the market, and the neighborhood in the meantime, or the appraisal
methodology may change because of new analysis made in changing from a summary appraisal
to a complete appraisal or because the original appraiser may not be available. This reevaluation
can present a catch-22 for the plaintiff because the appraiser may be testifying to an amount
greater than the plaintiff’s last offer, which may raise questions about negotiating in good faith.
On the other hand, the appraisal can be two years old or more by the time the complaint is filed,
and if the appraiser does not adjust the values, his or her credibility can be called into question if
there has been clear market inflation or changes in the property or neighborhood.
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Often, the defendant will not present valuation evidence at the quick-take hearing because the
expense is not justified. However, the defendant may use the hearing as an opportunity for
discovery and engage in extensive cross-examination of the plaintiff’s appraiser. Thus, the
appraiser needs to be prepared for this possibility.
There is also the possibility that the court will use the court-appointed appraiser method set
out in 735 ILCS 30/20-5-10(c). This procedure is not often used. However, it can be a significant
setback for the plaintiff because of the time involved. The plaintiff should strongly object if the
defendant has already hired an appraiser, as the only result will be delay and added expense for
the plaintiff.
At the conclusion of the quick-take hearing, the court then makes a finding of the amount of
preliminary just compensation. See §4.17 below.
V. [4.17] ORDER FIXING PRELIMINARY JUST COMPENSATION
At the conclusion of the quick-take hearing, the plaintiff should present a written order to the
court containing all the necessary findings. The order should find that the plaintiff has the
authority to exercise the right of eminent domain, the property is subject to the authority, the
authority is not being improperly exercised, and reasonable necessity exists for the taking of the
property by quick-take. The order should also state the value of the property taken and the
damage to the remainder, if any. It should describe the property taken and the interest acquired
(such as fee simple). Finally, it should provide that, upon deposit of the compensation with the
treasurer, the court will enter an order vesting title in the plaintiff. If the date and terms of
possession have been determined, they should be set out in this order and then repeated in the
order vesting title. The order should also contain any condition of performance on the plaintiff.
For example, for temporary easements for grading and shaping, the order should provide that
construction work on the easement must be completed as specified in the plans prepared by the
plaintiff in a good and workmanlike manner and must be paid for by the plaintiff.
See §4.33 below for a sample order fixing preliminary just compensation.
VI. [4.18] DEPOSIT OF FUNDS AND VESTING OF TITLE
After entry of the order fixing preliminary just compensation, the plaintiff deposits the funds
with the county treasurer and obtains a written receipt. See the sample in §4.34 below. The
treasurer should also receive a copy of the order fixing preliminary just compensation. The
receipt is filed with the court, and an order vesting title (see the sample in §4.35 below) may be
presented ex parte to the court with the proof of payment if the issue of possession has been
determined. This order should contain a legal description of the property, state the type of title
that vests, and state whether the plaintiff obtains immediate possession or the conditions of
possession if it is not immediate. Some of the compensation may be withheld if the plaintiff has
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to remove improvements that were the defendant’s responsibility. If possession has not been
previously determined, then, under 735 ILCS 30/20-5-15(a), it must be determined at this stage.
The court may enter an order requiring the defendant to pay a reasonable rental to the
plaintiff if there is a delay in possession of more than ten days. 735 ILCS 30/20-5-15(b). The
plaintiff is entitled to injunctive or other appropriate relief (such as forcible entry and detainer) to
obtain possession. Id.
VII. [4.19] WITHDRAWAL OF PRELIMINARY JUST COMPENSATION
A party interested in the property may petition for withdrawal of the funds if (a) the plaintiff
has taken possession and (b) no appeal of the court order finding that the plaintiff has the power
to acquire the property by condemnation has been or will be taken or such an appeal has been
determined in favor of the plaintiff. 735 ILCS 30/20-5-20.
The party must give notice to each party whose interests would be affected by the
withdrawal. Id. This section is written the same as the quick-take section (735 ILCS 30/20-510(a)), requiring that the court “fix a date” and that due notice be given to each party whose
interest would be affected by the taking. In practice, many defendants set their own hearing
without court order and give notice to the plaintiff and all defendants.
Although the plaintiff is not interested in who receives the money, it is still a party “affected
by the withdrawal” and should receive notice to make sure that the two preconditions to
withdrawal have been met, i.e., that possession has been secured and that no appeal has been or
will be filed. 735 ILCS 30/20-5-20.
All defendants who have not been defaulted should also be given notice. The party seeking to
withdraw the funds will have to prove that it is entitled to the funds “according to the fair value of
[its] legal or equitable interests.” 735 ILCS 30/10-5-90. Disputes between landlords and tenants,
contract buyers and sellers, and landowners and mortgagees might have to be litigated at this
stage. There are applicable standards for contract buyers and sellers. Id. The defendant may need
to present releases from named parties, title insurance, or evidence of the terms of a lease,
mortgage, or contract to purchase to establish its claim to the funds. In a simple case, a verified
petition setting forth that the preconditions have been met and setting out the interests of the
parties may suffice.
Because the defendants may or may not earn interest on their funds while on deposit with the
treasurer, depending on what the treasurer does with the funds (see Morton Grove Park District v.
American National Bank & Trust Co., 78 Ill.2d 353, 399 N.E.2d 1295, 35 Ill.Dec. 767 (1980)),
the defendants may agree to withdraw the funds and place them in an interest-bearing escrow,
subject to distribution according to the final ruling of the court. See, e.g., Village of Palatine v.
Palatine Associates, LLC, 2012 IL App (1st) 102707, ¶¶14 – 20, 966 N.E.2d 1174, 359 Ill.Dec.
486.
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The order authorizing withdrawal of funds is then presented to the treasurer with written
instructions for delivery of the check.
See §§4.36 and 4.37 below for a sample motion to withdraw, and an order authorizing
withdrawal of preliminary just compensation.
VIII. ANCILLARY ISSUES
A. [4.20] Discovery
Because quick-take is intended to be quick and discovery is not quick, there is an inherent
tension between quick-take procedures and discovery rules. Plaintiffs will want to object to any
attempt to delay the quick-take procedure to conduct discovery. The two key issues to be
addressed in a discovery objection are timing and whether the matter on which discovery is
sought is subject to judicial review. Department of Transportation of State of Illinois ex rel.
People v. Collins, 69 Ill.App.3d 269, 387 N.E.2d 6, 9, 25 Ill.Dec. 549 (3d Dist. 1979). An
objection to discovery on the issue of valuation should be well-taken because that issue is not
subject to judicial review (Department of Public Works & Buildings v. Dust, 19 Ill.2d 217, 166
N.E.2d 36, 40 – 41 (1960)), the issue can be fully and fairly litigated at a later date, and the
defendant will be compensated with interest for any difference between the quick-take award and
the final award (735 ILCS 30/20-5-30(1)). Discovery requests “related solely to the design and
engineering portions of the project” have met the same result. Collins, supra, 387 N.E.2d at 9.
Discovery on issues surrounding a traverse is more complicated. Plaintiffs should attempt to limit
discovery to requests for production of documents and then should produce immediately.
B. [4.21] View of Premises at Quick-Take
No statute or caselaw prohibits or requires a judge’s view of the premises at quick-take. See
735 ILCS 30/10-5-45 (jury view of premises is mandatory if requested by either party);
Department of Business & Economic Development v. Phillips, 43 Ill.2d 28, 251 N.E.2d 170, 174
(1969) (no constitutional right to jury view of premises prior to quick-take). Due to the
preliminary nature of the proceeding, it is not common for either party to request such a view.
C. [4.22] Interest
The statutes do not provide for the payment of interest on the quick-take award between the
dates of the order fixing preliminary just compensation and the order vesting title. There are
likely two key reasons for this. First, the defendant has generally continued in use and possession
of the property during that time (see, e.g., 735 ILCS 30/20-5-30(1), whereby interest on excess of
the final award over the preliminary award is calculated back to the day that possession is
surrendered), and second, the order is not a judgment that the plaintiff is required to pay because
the plaintiff can dismiss its complaint between the entry of the order fixing preliminary just
compensation and the vesting of title. See 735 ILCS 30/20-5-40; Department of Public Works &
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Buildings of State of Illinois ex rel. People v. Vogt, 51 Ill.App.3d 770, 366 N.E.2d 310, 315, 9
Ill.Dec. 53 (5th Dist. 1977).
If the final award exceeds the preliminary award, interest runs “from the date on which the
parties interested in the property surrendered possession of the property in accordance with the
order of taking, to the date of payment of the excess by the plaintiff.” 735 ILCS 30/20-5-30(1).
While the statute calls for interest at six percent and excludes additional postjudgment interest
under 735 ILCS 5/2-1303 or any other law (§20-5-30), the six-percent rate merely sets the floor
as established by the legislature. Because the interest is a part of the just compensation
contemplated by the Constitution, the amount of interest is ultimately determined by the judge or
the jury, not the legislature. Illinois State Toll Highway Authority v. American National Bank &
Trust Company of Chicago, 162 Ill.2d 181, 642 N.E.2d 1249, 1254 – 1255, 205 Ill.Dec. 132
(1994).
The plaintiff does not have to pay any interest on the award once it is deposited with the
treasurer, except as stated below. However, the treasurer will be required to pay the defendant the
interest that it earns on the defendant’s money. Morton Grove Park District v. American National
Bank & Trust Co., 78 Ill.2d 353, 399 N.E.2d 1295, 35 Ill.Dec. 767 (1980).
If the plaintiff objects to the authority of the party to withdraw the preliminary compensation
(other than due to a pending or contemplated appeal under 735 ILCS 30/20-5-10) and the plaintiff
prevails, then the plaintiff must pay interest from the date of deposit to the date of payment to the
petitioning party. 735 ILCS 30/20-5-30(2). When the plaintiff prevents the party from
withdrawing the funds, even when the party eventually prevails and is able to withdraw the funds,
the interest must be paid. While the language of the statute makes no exception for when the
plaintiff prevails on a possession issue, it would seem that fairness would dictate that a possession
issue be treated the same as an appeal issue, since the plaintiff’s objection was not wrongful. See
Department of Public Works & Buildings v. Schon, 42 Ill.2d 537, 250 N.E.2d 135, 137 (1969)
(stating in dicta that predecessor to §20-5-30 applied when plaintiff wrongfully contested petition
to withdraw). Note that, unlike interest on an excess award, this interest is payable from the date
of deposit, not the date of possession.
If the final compensation is less than the preliminary compensation, then interest is paid
according to §2-1303, which provides that interest runs from the date of judgment and that
interest between the verdict and the judgment is calculated and included in the judgment. There is
no right to interest from the date of the withdrawal by the defendant. Department of
Transportation v. New Century Engineering & Development Corp., 97 Ill.2d 343, 454 N.E.2d
635, 640 – 641, 73 Ill.Dec. 538 (1983). The obligation to pay interest on the judgment continues
during the pendency of an appeal as in any other civil case. Illinois State Toll Highway Authority
v. Heritage Standard Bank & Trust Co., 157 Ill.2d 282, 626 N.E.2d 213, 220, 193 Ill.Dec. 180
(1993).
D. [4.23] Valuation Date
Under the Eminent Domain Act, when there is a quick-take proceeding, if the trial
commences more than two years after the date of filing the complaint, then the court may move
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the valuation date to any date between the filing date and the date of the vesting of title. 735 ILCS
30/10-5-60(ii).
E. [4.24] Alternatives to Quick-Take
An interesting line of cases has arisen in both the federal and state context in relation to the
acquisition of easements for pipeline construction. Under both systems, the pipeline companies
have condemnation authority granted through a regulatory framework but do not have quick-take
authority. Instead, the acquiring entities have used a preliminary injunction process to obtain
possession prior to an award and payment of final compensation.
In the federal system, once the pipeline company obtains a judgment for condemnation,
thereby resolving all issues other than the amount of compensation to be paid, the courts have
permitted the pipeline company to take possession of the easement by granting a preliminary
injunction for immediate possession of the property. See Rockies Express Pipeline LLC v. 77.620
Acres More or Less, No. 08-3127, 2008 WL 3849911 (C.D.Ill. Aug. 15, 2008) (and cases cited
therein); Northern Border Pipeline Co. v. 64.111 Acres of Land, 125 F.Supp.2d 299 (N.D.Ill.
2000).
In the state system, the Illinois appellate court applied a similar analysis in Enbridge
Pipelines (Illinois), L.L.C. v. Troyer, 2015 IL App (4th) 150334, 38 N.E.3d 1282, 395 Ill.Dec.
526, granting a preliminary injunction for possession of the property prior to the jury
determination of just compensation. While the court states that the only remaining issue is the
amount of compensation, it is not clear how the case has come to that procedural posture. There is
no reference in the opinion to a judgment of condemnation (like in the federal system) or the
denial of a traverse. The court refers to its prior Rule 23 opinion affirming the grant of eminent
domain under the regulatory framework, but, in the federal system, the mere fact that the plaintiff
has cleared the regulatory requirements to acquire the authority to condemn is not enough. See
Northern Border Pipeline Co. v. 86.72 Acres of Land, 144 F.3d 469 (7th Cir. 1998). This federal
analysis is consistent with the Illinois procedure whereby the condemnation right can be tested
through the traverse process.
Troyer, supra, makes no mention of the quick-take statute or the process required thereunder.
There is no analysis of how the court has authority to circumvent a clear and long-established
statutory framework through the exercise of its equitable injunctive powers. It appears that under
the analysis of Troyer, entities without quick-take powers may be able to obtain a similar result
without following the statutory quick-take process.
IX. APPEALS
A. [4.25] Appealable Issues
The only appealable issues in a quick-take proceeding are the court’s findings that the
plaintiff has authority to exercise the right of eminent domain, that the property taken is subject to
the exercise of that right, and that the right is not being improperly exercised. 735 ILCS 30/20-5-
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10(b). In Department of Transportation ex rel. People v. 151 Interstate Road Corp., 209 Ill.2d
471, 810 N.E.2d 1, 284 Ill.Dec. 348 (2004), the Supreme Court resolved a conflict among the
districts, holding that the issue of whether the condemnor negotiated in good faith is directly
related to the proper exercise of the right of eminent domain under former 735 ILCS 5/7-104(b)
(now 735 ILCS 30/20-5-10(b)) and, therefore, is appealable under S.Ct. Rule 307(a)(7). The
issues of the necessity of the quick-take and the amount of preliminary just compensation,
however, are interlocutory orders and are not appealable. Department of Public Works &
Buildings v. Dust, 19 Ill.2d 217, 166 N.E.2d 36, 38 (1960).
The appeal must be taken within 30 days, which may be extended by the court for good
cause. Id. In Department of Public Works & Buildings of State of Illinois ex rel. People v.
Exchange National Bank of Chicago, 40 Ill.App.3d 623, 356 N.E.2d 376, 380, 1 Ill.Dec. 250 (2d
Dist. 1976), the court held that in a proceeding in which a quick-take order had been entered, the
defendant could not appeal the issue of authority after the trial on final compensation.
B. [4.26] Stay Pending Appeal
If the plaintiff appeals, then further proceedings are stayed. 735 ILCS 30/20-5-10(b). If the
defendant appeals, then the proceedings are stayed only if the court so orders. Id. Absent a stay,
the court may continue the hearing and determine the necessity for quick-take and the amount of
preliminary just compensation. Department of Public Works & Buildings v. Dust, 19 Ill.2d 217,
166 N.E.2d 36, 38 (1960).
C. [4.27] Dismissal of Complaint on Appeal
If the appellate court, on appeal of the quick-take order, finds that the plaintiff did not have
the authority to acquire the property by eminent domain, then the trial court shall enter an order
revesting title in the appropriate parties. The plaintiff must also pay any damages from its
possession and use of the property and shall pay the defendant’s costs, expenses, and attorneys’
fees. 735 ILCS 30/20-5-45.
X. SUBSEQUENT PROCEEDINGS
A. [4.28] Matters at Quick-Take Not Admissible at Trial
Because quick-take “is a proceeding within a proceeding” and clearly expedited and
preliminary in nature, in general, neither party is judicially bound by what takes place at the
hearing as to evidentiary matters. See Department of Transportation v. Quincy Coach House,
Inc., 64 Ill.2d 350, 356 N.E.2d 13, 17, 1 Ill.Dec. 13 (1976), quoting Department of Public Works
& Buildings v. Dust, 19 Ill.2d 217, 166 N.E.2d 36, 38 (1960). The amount awarded at the quicktake hearing and the amount deposited cannot be evidence in the hearing to ascertain the final
compensation “and shall not be disclosed in any manner to a jury impaneled in the proceedings.”
735 ILCS 30/20-5-10(d). The appraisers’ report ordered under §20-5-10(c) is also not admissible,
but the parties may call the appraisers as witnesses. 735 ILCS 30/20-5-10(d). However, an
appraiser cannot disclose that he or she was appointed by the court to appraise the property for
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the quick-take hearing. Department of Business & Economic Development v. Baumann, 56 Ill.2d
382, 308 N.E.2d 580, 582 (1974); Department of Public Works & Buildings of State of Illinois ex
rel. People v. First National Bank of Waukegan, 61 Ill.App.2d 78, 209 N.E.2d 21, 23 (2d Dist.
1965). Furthermore, a failure to object to evidence at a quick-take hearing is not a waiver of the
right to object to the evidence at the final hearing. Quincy Coach House, supra, 356 N.E.2d at 17.
However, whether an appraiser’s testimony at quick-take can be used for purposes of
impeachment is untested. The impeachment, if permissible, would have to be conducted without
running afoul of the restrictions listed above.
B. [4.29] Dismissal or Abandonment by the Plaintiff
At any time before the plaintiff takes possession after the vesting of title, the plaintiff may
dismiss the complaint and thereby abandon the proceedings. 735 ILCS 30/20-5-40; Department
of Public Works & Buildings of State of Illinois ex rel. People v. Vogt, 51 Ill.App.3d 770, 366
N.E.2d 310, 9 Ill.Dec. 53 (5th Dist. 1977). In City of Chicago v. Harris Trust & Savings Bank,
346 Ill.App.3d 609, 804 N.E.2d 724, 281 Ill.Dec. 759 (1st Dist. 2004), the court permitted the
condemnor to abandon the proceedings as to the lessee of the property after the order vesting title
had been entered when the order provided for delayed possession and the petition to abandon was
filed before the possession date in the order vesting title. The court also emphasized that the
condemnor had never taken actual possession, even after the possession date allowed in the order,
indicating that actual possession, not permitted possession, may be the determining factor. 804
N.E.2d at 732. Upon dismissal, the plaintiff must pay the defendant’s attorneys’ fees and costs.
735 ILCS 30/10-5-70(a). Once the plaintiff has taken possession pursuant to the order vesting
title, it cannot dismiss the complaint or abandon the proceedings without the consent of all parties
affected and shall pay appropriate damages, attorneys’ fees, and costs. 735 ILCS 30/10-5-70,
30/20-5-40, 30/20-5-45.
XI. SAMPLE PLEADINGS AND DOCUMENTS
A. [4.30] Sample Motion for Immediate Vesting of Title
This motion is prepared as if the condemning authority is the State of Illinois and contains
alternative language in the event the current fiscal year program is not yet published by the state.
It also attaches relevant portions of the program and requests waiver of service of the entire
program book.
MOTION FOR IMMEDIATE VESTING OF TITLE
Plaintiff, Department of Transportation, State of Illinois, by [name of plaintiff attorney],
Attorney General, for its Motion for Immediate Vesting of Title under 735 ILCS 30/20-5-5
and 30/20-5-10 states:
1. Plaintiff requests that it be immediately vested with [fee simple] title to the following
described property:
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§4.30
ILLINOIS EMINENT DOMAIN PRACTICE
[Lots ___ and ___ in ____________ Subdivision, ____________] [name of county], Illinois,
commonly known as [address].
Property Identification Number: [PIN number]
Parcel [parcel number]
[2. Plaintiff has adopted a schedule for a project that calls for the acquisition of this and other
Parcels of land in [name of county] County and the construction of the proposed improvements in
Plaintiff’s ___ fiscal year. The Secretary of the Department of Transportation submitted this
schedule to the Governor of the State of Illinois under the laws of the State. The project is
contained in the Department’s fiscal year ___ improvement program. The project is included in
the Department’s fiscal year ___ appropriation budget and improvement program attached as
Exhibit A and entitled “FY ___ Proposed Highway Improvement Program.” Portions of Exhibit
A that refer to this Parcel are attached as Exhibit B.]
[or]
[2. Plaintiff has adopted a schedule for a project that calls for the acquisition of this and other
Parcels of land in [name of county] County and the construction of the proposed improvements in
Plaintiff’s ___ fiscal year. The Secretary of the Department of Transportation submitted this
schedule to the Governor of the State of Illinois under the laws of the State. The project is
contained in the Department’s fiscal year ___ improvement program. The project is included in
the Department’s ___-year plan entitled “FY ___ Proposed Highway Improvement Program,”
attached as Exhibit A. Portions of Exhibit A that refer to this Parcel are attached as Exhibit B.
The Department’s fiscal year ___ appropriation budget and improvement program are not yet
available in printed form.]
3. Plaintiff seeks to acquire the Parcel for the following project: [Improvement of FAP
Route A.]
4. This Parcel is necessary to complete the project and will specifically be used for
[construction of additional lanes].
5. Plaintiff has been unable to acquire, and has reason to believe it will be unable to
acquire, the Parcel by negotiation.
6. Further delay in the acquisition of the Parcel will delay the planned work and
improvements, all of which are public works, and will imperil the acquisition and
construction schedule of Plaintiff. This, in turn, will cause increased construction costs and
[delay the elimination of traffic hazards by the proposed improvements].
PLAINTIFF REQUESTS THAT THIS COURT:
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a. Set a date for a hearing on this Motion not less than five days after the filing of this
Motion.
b. Enter an Order at the conclusion of the hearing vesting immediate [fee simple] title
to Parcel [parcel number] to Plaintiff.
c. Waive service of Exhibit A entitled [“FY ___ – ___ Proposed Highway Improvement
Program,”], a copy of Exhibit A having been placed on file with the Clerk of the Court.
Department of Transportation
State of Illinois
By: ____________, Attorney General
B. [4.31] Sample Publication Notice
This publication notice contains notice of the quick-take hearing.
PUBLICATION NOTICE
The requisite Affidavits for Service by Publication having been filed in the abovecaptioned cause, NOTICE is hereby given to [name of Defendants] and Unknown Owners,
Defendants in this cause, that this condemnation action is now pending in the Circuit Court
of [name of county] County, against you and other Defendants, praying for the
condemnation of certain real estate as follows:
[Lots ___ and ___ in ____________ Subdivision,] [name of county] County, Illinois,
commonly known as [address].
Property Identification Number: [PIN number]
The names of the titleholders of record, other interested parties, and the interest sought are
as follows:
A. Name or names of present owner or owners of the premises:
B. Names of other interested parties:
C. Interest sought:[Fee simple].
You are further notified that unless on or before [date], you file or otherwise make your
appearance in this suit, a trial may be held and judgment entered against you for the relief
asked for in the Complaint.
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§4.32
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You are further notified that on [date and time], in Courtroom ___ at the [name of
county] County Courthouse, the Plaintiff’s Motion for Immediate Vesting of Title will be
heard before Judge [name of judge] or any judge sitting in [his] [her] stead.
Dated: [date]
Attorney for Plaintiff:
[attorney information]
_______________________________________
Clerk of the Circuit Court
[name of county] County, Illinois
C. [4.32] Sample Order Setting Hearing on Motion for Immediate Vesting of Title
This order provides additional paragraphs that may be used if the court orders notice to the
publication defendants and waives the service of the entire program book or plan.
ORDER SETTING HEARING ON MOTION FOR IMMEDIATE
VESTING OF TITLE
This cause heard on Plaintiff’s Motion for Immediate Vesting of Title for Parcel [parcel
number], the Court orders:
1. Plaintiff is granted leave to file the Motion instanter.
2. The Motion for Immediate Vesting of Title for Parcel [parcel number] is set for
hearing on the [date and time], before Judge [name of judge] or any other judge sitting in
[his] [her] stead.
3. Plaintiff shall serve the Motion and this Order on each party to the proceeding
whose interests would be affected by the taking requested and whose address is known to
Plaintiff in compliance with 735 ILCS 5/1-108, Supreme Court Rule 11, and Local Court
Rules.
[4. Plaintiff shall give notice by publication to each party whose address is unknown.]
[5. Service of Exhibit A to the Motion is waived.]
ENTER: _______________________________
_______________________________________
JUDGE
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D. [4.33] Sample Order Fixing Preliminary Just Compensation
ORDER FIXING PRELIMINARY JUST COMPENSATION
This cause heard on Plaintiff’s Motion for Immediate Vesting of Title, with Plaintiff
present by its attorney, [name of attorney], the following Defendants appearing:
[names of defendants appearing]
and the following Defendants not appearing:
[Name of County Treasurer] [name of county] County Treasurer, and Unknown Owners.
The Court finds that notice was given to all parties as required by the Court in its Order
setting this matter for hearing. The Court, having considered the evidence, arguments,
pleadings, and other filings of the parties, finds:
1. Plaintiff has authority to exercise the right of eminent domain in these proceedings.
2. The property sought to be taken is subject to Plaintiff’s authority, and the authority
is not being improperly exercised.
3. Reasonable necessity exists for the taking of the property in the manner requested.
4. $____________ is the amount constituting preliminary just compensation for the
taking of [fee simple] title to:
[Lots ___ and ___ in ____________ Subdivision], [name of county], Illinois.
Property Identification Number: [PIN number]
IT IS ORDERED:
A. Upon Plaintiff’s presenting evidence to this court that Plaintiff has deposited the
sum of $____________ with the [name of county] County Treasurer in this cause, this Court
will enter an Order vesting fee-simple title in Plaintiff to the real estate described in
paragraph 4 of this Order [and granting Plaintiff immediate possession].
[B. The construction work on the easement must be completed as specified in the plans
prepared by Plaintiff in a good and workmanlike manner and must be paid for by Plaintiff.]
[C. Defendant is to remove ____________ by [date]. $____________ of the preliminary just
compensation represents the cost to remove ____________, which shall be held by the County
Treasurer until Defendant has complied with the condition. If Defendant fails to remove
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____________, Plaintiff may, after [date], remove ____________, and funds so withheld shall be
returned to Plaintiff.]
ENTER: _______________________________
_______________________________________
JUDGE
E. [4.34] Sample Treasurer’s Receipt
This form should be printed with a court caption so that it may be filed in the court file.
TREASURER’S RECEIPT
The undersigned, County Treasurer of [name of county] County, Illinois, acknowledges
receipt of [State of Illinois Warrant No. ____________], in the amount of $____________,
paid by Plaintiff in this matter as preliminary just compensation due to the owners and
parties in interest for the taking of title to Parcel [parcel number] according to the Order
Fixing Preliminary Just Compensation entered by the Court on [date].
[date]
_______________________________________
County Treasurer of
[name of county] County, Illinois
F. [4.35] Sample Order Vesting Title
ORDER VESTING TITLE
This Court previously ordered on [date], that $____________ was the preliminary
compensation to be paid for Plaintiff to acquire [fee simple] title to:
Lots [lot numbers] in [name of subdivision] Subdivision, [name of county] County, Illinois.
Property Identification Number: [PIN number]
The Court finds that Plaintiff has deposited the sum of $____________ with the [name of
county] County Treasurer and has filed the Treasurer’s Receipt with the Court.
IT IS ORDERED:
A. Plaintiff is vested with [fee simple] title to the following described property:
[Lots ___ and ___ in ____________ Subdivision], [name of county] County, Illinois.
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Property Identification Number: [PIN number]
[B. Plaintiff is authorized to take immediate possession of this property.]
[C. Defendant shall remove ____________ by [date]. $____________ of the above
preliminary just compensation represents the cost of removal of ____________, which shall be
held by the County Treasurer until Defendant has complied with the condition. If Defendant fails
to remove ____________, Plaintiff may, after [date], remove ____________, and the funds so
withheld shall be returned to Plaintiff.]
ENTER: _______________________________
_______________________________________
JUDGE
G. [4.36] Sample Motion To Withdraw Preliminary Just Compensation
MOTION TO WITHDRAW PRELIMINARY JUST COMPENSATION
Defendants, [names of defendants], by their attorneys, [name of attorney], request this
Court to enter an Order authorizing them to withdraw the sum of $____________, which
has been deposited with the [name of county] County Treasurer by Plaintiff pursuant to the
Order Fixing Preliminary Just Compensation for the taking of Parcel [parcel number], and
state:
1. The complaint for condemnation was filed in this cause on [date], and Defendants
are the owners of the land in question and were the owners of the land on the date the
complaint was filed.
2. A Motion for Immediate Vesting of Title was filed and heard by the Court, and on
[date], the Court entered an Order Fixing Preliminary Just Compensation for the taking of
fee-simple title to Parcel [parcel number] in the amount of $____________.
3. Plaintiff has deposited the sum of $____________ with the [name of county] County
Treasurer pursuant to the Order of the Court.
4. Plaintiff has taken possession of Parcel [parcel number], an appeal has not been filed,
and no appeal will be filed by Defendants.
5. The release of the mortgagee, [name of mortgagee], is attached hereto as Exhibit A.
There are no other parties interested in the property other than the [name of county] County
Treasurer. Therefore, Defendants are entitled to withdraw the funds without notice to any
party other than Plaintiff and the [name of county] County Treasurer.
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6. If an Order is entered at a later date requiring a refund of any part of the amount
withdrawn as excess compensation, Defendants will refund any amount so ordered.
WHEREFORE, Defendants request this Court to enter an order authorizing
Defendants to withdraw the sum of $____________ from the [name of county] County
Treasurer on the condition that Defendants will refund any excess compensation as ordered
by the Court.
[name of defendants], Defendants
By: ___________________________________
Their Attorneys
Verification
I, ____________, under penalty of perjury as provided in 735 ILCS 5/1-109, state that I
have read the foregoing Motion, that I know its contents, and that the facts stated therein
are true and correct.
_______________________________________
H. [4.37] Sample Order Authorizing Withdrawal of Preliminary Just Compensation
ORDER AUTHORIZING WITHDRAWAL OF
PRELIMINARY JUST COMPENSATION
On Motion of Defendants, [names of defendants], for Withdrawal of Preliminary Just
Compensation, due notice having been given, the Court, being fully advised in the premises,
ORDERS:
A. The Motion To Withdraw Preliminary Just Compensation is allowed.
B. The [name of county] County Treasurer shall issue payment to [name of defendant(s)]
in the amount of $____________ after deducting ad valorem taxes.
C. This sum shall be held by Defendants, [names of defendants], subject to refund under
final Court order if the preliminary just compensation exceeds the final compensation.
Enter: _________________________________
_______________________________________
JUDGE
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5
Eminent Domain Proceedings
by Government Authorities
Other than the State
JOHN W. DAMISCH
Damisch & Damisch Ltd.
Chicago
®
©COPYRIGHT 2016 BY IICLE .
5—1
ILLINOIS EMINENT DOMAIN PRACTICE
I. [5.1] Introduction
II. Preliminary Considerations
A. [5.2] Attorneys Should Consider the Overall Project
B. Both the Public Body and the Landowner Should Adopt a Plan
1. [5.3] The Condemnor’s Plan
2. [5.4] The Condemnee’s Plan
C. [5.5] Tax Consequences
D. Should Owners Support or Oppose the Project?
1. [5.6] Condemnation Could Be a Benefit
2. If the Owners Oppose the Project
a. [5.7] Start Early
b. [5.8] Seek Political and Legislative Support
c. [5.9] Oppose the Condemnation at the Pre-Resolution Stage
d. [5.10] Should the Condemnor or Condemnees Seek Early Resolution of the
Condemnation Action?
III. Issues For Both Sides To Consider in Prosecution or Defense of a Condemnation
A.
B.
C.
D.
E.
F.
[5.11]
[5.12]
[5.13]
[5.14]
[5.15]
[5.16]
A Correct Legal Description
The Eminent Domain Act
A Traverse Could End the Condemnation
The Condemnation Resolution
Failure To Follow the Law Will Lead to Dismissal
Extending the Take Date
IV. [5.17] Transferring Property from One Private Owner to Another by
Condemnation
A. [5.18] History: Tax Increment Financing, the Tax Increment Allocation
Redevelopment Act, and Redevelopment Authorities
B. Challenges
1. [5.19] Elimination of Slums
2. [5.20] Parking for Racetracks
3. [5.21] Municipality’s Change in Plans
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EMINENT DOMAIN PROCEEDINGS BY GOVERNMENT AUTHORITIES OTHER THAN THE STATE
V.
Other Condemnation Issues
A. [5.22] Excessive Taking
B. [5.23] Inverse Condemnation
1. [5.24] When Is a Regulation a Taking and Not a Permissible Regulation?
2. [5.25] Downzoning
3. [5.26] Flooding
4. [5.27] Public Body Is the Only Possible Buyer
5. [5.28] Streets and Parkways
6. [5.29] Airports
C. [5.30] Mortgage Foreclosures
D. [5.31] Condemnation and Interplay Among Public Bodies
E. [5.32] Lessees’ Claims to Part of the Award
F. [5.33] Home Rule
G. [5.34] Abandonment of a Condemnation Action
H. [5.35] Notice
I. [5.36] Good-Faith Attempt To Settle Before Suit
1. [5.37] What Is the Date of a Taking?
2. [5.38] What Are the Landowners Rights During Pending Condemnation?
J. [5.39] Casinos vs. Horse Tracks
K. [5.40] Oil Wells
L. [5.41] No Money for Bondholders
M. [5.42] Interest on Abandoned Property
N. [5.43] Billboards
O. [5.44] Who Acts for the Condemnor?
P. [5.45] Forest Preserves and Easements
Q. [5.46] Parking Lots and Driveways
VI. [5.47] Conclusion
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§5.1
ILLINOIS EMINENT DOMAIN PRACTICE
I. [5.1] INTRODUCTION
Counties, cities, municipalities, forest preserves, conservation districts, airport authorities,
public building commissions, and a host of other entities from levees to sports authorities have
been granted the power of eminent domain. Quasi-public bodies such as public utilities for gas,
electric, telephone, pipelines, and the like have also been given the right to take private property
by condemnation. The general law of condemnation for all condemning bodies applies in
condemnation proceedings and is covered in other chapters of this book. Condemnation actions
brought in the federal courts mirror state actions except the condemnee/owner is not entitled to a
jury that would set the compensation for the taking of the property. Efforts to enact legislation
requiring a jury in federal takings have failed. See Chapter 11 of this handbook, Federal Eminent
Domain Practice, for information regarding local public bodies faced with federal takings.
There has been little condemnation activity in the eminent domain field in the past decade.
Municipalities, sports authorities, and tax increment financing (TIF) districts have not had the
funds to develop new projects. Developers are not interested in making investments in TIF
district shopping malls. Some shopping malls are in financial difficulties. Attempts have been
made to expand condemnation into areas outside the taking of real estate by the use of inverse
condemnation. Most inverse condemnation cases fail because there is no actual taking of land for
a public use.
This chapter deals with some of the special considerations that can arise when the
condemnation is brought, not by the State of Illinois or a public utility, but by one of the many
other entities that have been granted the right of eminent domain.
II. PRELIMINARY CONSIDERATIONS
A. [5.2] Attorneys Should Consider the Overall Project
Attorneys for the public body and owner should consider the entire condemnation project. Is
the project going to increase or decrease the value of the owner’s land? Does the public body
have quick-take rights? How soon does the public body need the land? Has the Eminent Domain
Act been followed to the letter? The following are some of the issues that both sides should
consider.
On January 1, 2007, the Eminent Domain Act (EDA), 735 ILCS 30/1-1-1, et seq., became law.
This legislation had its greatest impact on the condemnation powers of local governments and
particularly municipal governments taking land for tax increment financing districts. Some of the
changes in condemnation proceedings brought about by the EDA are discussed in this chapter.
Attorneys are cautioned to be careful citing cases that pre-date 2007 if the EDA has modified any
issues in the proposed condemnation proceedings. The EDA attempted to level the playing field
for owners, particularly in the area of TIF districts. Before the EDA, municipalities formed TIF
districts that were in place for over 20 years. Property was subject to a taking during that entire
period. The burden was on the landowner to prove that the TIF district was not properly formed
or was otherwise defective. The landowner usually lost this battle.
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§5.3
The EDA shifted the burden of proof to the municipality to show that the TIF district was
properly formed for public purposes. Condemnation became more favorable to landowners after
the United States Supreme Court’s decision in Kelo v. City of New London, Connecticut, 545 U.S.
469, 162 L.Ed.2d 439, 125 S.Ct. 2655 (2005). That decision brought about the EDA as well as
substantial legislative changes in condemnation laws in over 20 states. Kelo brought a strong
dissent by Supreme Court Justice Sandra Day O’Connor, followed by her resignation. A
postscript to Kelo is that the hotel/shopping TIF project was never completed.
Both the public body and the landowner should consider any change in legislation that may
affect the prosecution or defense of a condemnation action.
B. Both the Public Body and the Landowner Should Adopt a Plan
1. [5.3] The Condemnor’s Plan
The condemning body, with the advice of its attorneys, should develop an overall plan for the
project and condemnation proceedings. The public body’s plan for a project usually begins years
before condemnation. The project often has political, financial, and public acceptance
considerations. Financing the project out of bond proceeds, taxes, or user fees may ultimately
impact condemnation proceedings. The public body could incur substantial planning,
engineering, attorney, appraisal, and trial costs only to find, after a jury verdict, that the public
body is unable to fund the acquisition. An abandonment of the project will result in the payment
of all the owners’ fees and costs as well as fees and expenses spent by the public body. From the
initial concept of the project to the final condemnation judgment, the political and economic
climate may have changed. In Oak Brook Park District v. Oak Brook Development Co., 170
Ill.App.3d 221, 524 N.E.2d 213, 120 Ill.Dec. 448 (2d Dist. 1988), the jury award was over $17
million. The park district abandoned the project and paid very substantial attorneys’ fees and
costs.
Failure to follow the statute to the letter will probably result in the court granting a traverse
and dismissing the condemnation action. Such dismissal will also subject the condemning body to
the payment of the landowners’ attorneys’ fees and costs. If the appeal is unsuccessful, the
condemning body will be required to pay additional fees and costs for the defendant’s appeal. If
the condemning body has to start over with a new suit, the financial costs could be devastating.
The stricter rules of the Eminent Domain Act could make the acquisition impossible. The
valuation date could be advanced. New appraisals, engineering, land planners, etc., would be
required to comport with a much later valuation date. All of these expenses (damages) could be
laid at the door of the parties (including attorneys) who caused the traverse to be granted.
Although political and economic conditions may change for a project, usually the financing
of the project is most critical and directly impacts local projects. The question of quick-take
usually arises. The public body that is ready to acquire private property has political and public
approval, preliminary plans and financing are in place, construction costs have been determined,
and the project is ready to move to completion. In those cases, it is important that the private
property be acquired immediately so the project proceeds, opportunity and civic efforts are not
lost, and the current mayor and board of trustees’ names are forever emblazoned on the bronze
tablet that adorns the public improvement. If the public body had the right to quick-take, the
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§5.4
ILLINOIS EMINENT DOMAIN PRACTICE
owner’s property may be acquired in less than 30 days after filing of the suit to condemn. The
current mayor will have his or her picture in the paper at the ground-breaking ceremony for the
new civic center or swimming pool. Quick-take is granted only by the Illinois legislature and is
not a home-rule power. The quick-take powers given to non-state entities are usually limited as to
time and scope.
Municipalities have powerful lobbies in the legislature. Individual owners usually have a
single voice. Over years, municipalities have extended their power of eminent domain and quicktake to the extent that nearly every piece of property could be designated as a tax increment
financing or development district, condemned, and turned over to a private developer.
In spite of the EDA and the backlash of Kelo v. City of New London, Connecticut, 545 U.S.
469, 162 L.Ed.2d 439, 125 S.Ct. 2655 (2005), the elimination of true blight and continual
upgrading of homes and cities are important missions of state and local governments. These
benefits are set out in Northwestern University professor Carl Smith’s in THE PLAN OF
CHICAGO: DANIEL BURNHAM AND THE REMAKING OF THE AMERICAN CITY
(2006). This book demonstrates the importance of planning and the constant rebuilding of the
great cities of the world. Time will tell whether the EDA is a blessing or a detriment to state and
local governments.
With the substantial drop in real estate values, and the lack of developers, it is more important
than ever to have a plan in place. If the proposed land to be taken is to be used for a park, a
school, or a sports authority is the project feasible? Does the population support a new school or
park? Will the project be a financial success? Will the bonds financing the project sell and hold
their value? These are business, and not legal, decisions. The attorney should only advise, not
make the final decision on these matters.
NOTE: A lis pendens notice should always be filed by condemnor’s attorney upon the filing of a
condemnation case. This gives all future owners, and interested parties notice of the pending
taking of the property by the public body.
2. [5.4] The Condemnee’s Plan
If the owner expects to have a maximum return for his or her property, the owner should also
have a plan. Is there a reasonable probability that the subject land could be annexed and rezoned
into a municipality for a higher use? Has the owner taken any steps in securing a land plan,
engineering a study, or consulting with municipal officials that might lead to annexation and
rezoning? The owner’s attorney should explore with the owner, alternate uses of the property that
might result in a higher valuation on the date of the filing of the condemnation. Usually, the
owner knows of a threatened condemnation years in advance. It is not sufficient for the owner to
have only a dream for the use of the property as was held in Southwestern Illinois Development
Authority v. Al-Muhajirum, 348 Ill.App.3d 398, 809 N.E.2d 730, 284 Ill.Dec. 164 (5th Dist.
2004). In Al-Muhajirum, the owner was a mosque. The Muslim community had acquired the land
near their mosque with the hope of building the community. The mosque’s real estate appraiser
made his appraisal of the subject property based on various land improvements that the mosque
“planned to make at some undetermined time in the future.” 809 N.E.2d at 733. The mosque’s
appraisal was made based on various buildings the mosque hoped to build, even though ground
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EMINENT DOMAIN PROCEEDINGS BY GOVERNMENT AUTHORITIES OTHER THAN THE STATE
§5.6
had never been broken. At trial, the appraisal testimony was stricken. The mosque had no other
appraiser to support its date-of-taking value. The appellate court opined that the value of the
mosque’s property might have been worth more but the attempt to set value of the property on
some distant future hope or dream was not admissible. Without a viable, legal plan for the
property being condemned, the party lacking a plan will not be successful.
From the landowner’s prospective, should he or she make an early settlement? The valuation
date is an important consideration. In past years, real estate values have continued to rise. When
the take date was two or three years ago, the landowner was taking a “hit” on the increase in land
values while he or she waited for the case to come to trial. Now, if the case is not tried within two
years, the court may (or may not) advance the take date. No appellate court cases have addressed
this issue directly under the Eminent Domain Act. In Forest Preserve District of DuPage County
v. First National Bank of Franklin Park, 401 Ill.App.3d 966, 930 N.E.2d 477, 341 Ill.Dec. 267
(2d Dist. 2010), there was an eight-year delay between the filing and the trial. The appellate court,
in its remand, directed the trial court to address the issue of the date of taking.
C. [5.5] Tax Consequences
Tax consequences are an important consideration for the landowner. Under Internal Revenue
Code §1033, the landowner has two years to “roll over” the condemned property proceeds to
“like-kind” property. 26 U.S.C. §1033. The rules for like-kind property have been liberalized.
The landowner’s attorney should discuss with the landowner whether the condemnation proceeds
should be reinvested in other real estate. Advice from a tax attorney should be considered. The
final decisions regarding settlement, reinvestment, the type of reinvestment, the tax consequences
of the award, costs of the proceedings, and similar issues are business decisions to be made by the
landowner with the advice of his or her attorney. The attorney should be cautious about advising
the client to reinvest the proceeds in replacement real estate. The replacement property value may
sky rocket or nosedive. The lawyer taking on the role of “investment” advisor could be held
responsible for bad investment advice.
D. Should Owners Support or Oppose the Project?
1. [5.6] Condemnation Could Be a Benefit
In developing the owner’s plan, consideration should be given to whether the owner should
oppose, or welcome, the project and condemnation. If the village proposes a sewer and water line
through a farmer’s 160-acre farm, the value of the farm may increase tenfold. The farmer might
be able to negotiate a free tap-on with no recapture costs if the sewer and water line are being
paid for by the developer. See Village of Cary v. Trout Valley Ass’n, 282 Ill.App.3d 165, 667
N.E.2d 1082, 217 Ill.Dec. 689 (2d Dist. 1996) (Cary I) and 297 Ill.App.3d 63, 696 N.E.2d 1154,
231 Ill. Dec. 583 (2d Dist. 1998) (Cary II); Illinois State Toll Highway Authority v. DiBenedetto,
275 Ill.App.3d 400, 655 N.E.2d 1085, 211 Ill.Dec. 702 (1st Dist. 1995). The widening of a street
from two to four lanes might put the farm on Main Street. Perhaps the condemning body is the
only possible buyer. There are dozens of 100-foot abandoned railroad rights-of-way where
salvagers have acquired these rights-of-way, removed and sold the rails, granted pipeline and
public utility crossings, and now have only a 100-foot strip of land left that is unbuildable and
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§5.7
ILLINOIS EMINENT DOMAIN PRACTICE
still subject to real estate taxes. Condemnation by a park district for a biking/hiking trail would be
a windfall to the owner. See Department of Natural Resources of State of Illinois v. Brauer, 339
Ill.App.3d 723, 791 N.E.2d 120, 274 Ill.Dec. 324 (3d Dist. 2003).
A valuable corner property fronting on two busy four- or six-lane streets loses its commercial
appeal when un-mountable medians are erected on both fronting streets. The owner’s problem of
access may be solved when the village condemns the commercial corner for a beautification
program and the jury returns with a generous award.
2. If the Owners Oppose the Project
a. [5.7] Start Early
If the owner wishes to defeat the taking, he or she should start early and use all political
prowess that can be mustered both at the local and state levels. At the local level, schools and
other taxing bodies may not want their tax base diminished by a public or semipublic body. The
public/taxpayers do not want property taken off the tax rolls with the erection of a sports stadium.
Neighborhoods may not want the high school or sewer plant built in their neighborhood. Local
opposition may kill the project before the village mayor has his or her pet project off the ground.
The admonition to start early in an attempt to defeat a condemnation action has been
confirmed in Kreutzer v. Illinois Commerce Commission, 404 Ill.App.3d 791, 936 N.E.2d 147,
344 Ill.Dec. 5 (2d Dist. 2010). In that case, the property owners objected before the Illinois
Commerce Commission (ICC) to Commonwealth Edison Company (ComEd) building a high line
through southern McHenry and northern Kane Counties. The ICC granted ComEd the right to
proceed with condemnation for the line. The property owners sought administrative review before
the appellate court. The appellate court held that the evidence before the ICC did not demonstrate
the need for the amount of property ComEd sought to take by condemnation. If the owners had
waited until ComEd filed the condemnation action and then filed a traverse challenging the extent
of the taking, the objection would have been too late and the traverse denied.
A postscript to Kreutzer: Several condemnation cases were filed and settled, and there were
no further appellate decisions. The line was built as planned but on a reduced take.
b. [5.8] Seek Political and Legislative Support
Quick-take laws were initially enacted so tollways could be built. For many years, highways
were the main beneficiaries of quick-take laws. Gradually quick-take was extended to politically
charged projects such as sports authorities and the like. After seeing highways and sports
authorities granted quick-take, municipalities, transportation authorities, and a host of other
public bodies sought and were granted quick-take condemnation rights. Now, quick-take
authority is traded among legislators similar to other legislative “horse trading.” Public bodies
hire lobbyists to promote their quick-take legislation. Those opposed to the condemnation project
should make early contact with their legislators and urge them to actively oppose quick-take for a
particular project. The larger the opposition, the less likely quick-take legislation will pass.
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§5.9
However, like every rule, there are exceptions. In Enbridge Pipelines (Illinois) L.L.C. v.
Troyer, 2015 IL App (4th) 150334, 38 N.E.3d 1282, 395 Ill.Dec. 526, Enbridge Pipeline had
Illinois Commerce Commission condemnation authority over a set “take” line but did not have
“quick-take” authority. Only the Illinois legislature, not the ICC, has the power to grant quicktake in condemnation cases. In early 2015, Enbridge sought access to the landowner’s property to
commence the installation of the pipeline. The McLean County jury trial for determination of just
compensation was set for the fall of 2015. Enbridge wanted to commence construction of the
pipeline in the spring and not wait for a fall 2015 trial. Enbridge filed a motion for an injunction
and right of access to the landowner’s land and to enjoin the landowner from interfering with the
pipeline construction. The trial court granted the injunction, and the landowner appealed. The
appellate court affirmed the granting of the injunction and held Enbridge had set forth the
necessary factors that support Illinois injunctions.
Based on Enbridge, legislatively mandated “quick-take” may not always be required if the
public body is able to present to the trial court the necessary factors supporting injunctive relief.
Certainly the condemnor should be required to post a bond. If the trial court is going to grant an
injunction similar to Enbridge, the attorney for the landowner should insist on preliminary just
compensation for the take and damage to the remainder, if any. The landowner’s attorney should
be prepared with a written, detailed appraisal complete with a detailed opinion of the value of the
property taken and damages to the remainder. The landowner’s attorney should also insist that the
injunction order provide that preliminary just compensation be deposited with the county
treasurer before the public body enters the landowner’s land and that upon deposit with the
county treasurer, the land owner shall have the right to withdraw the funds on deposit with the
treasurer. Other language regarding final just compensation would be appropriate in the order of
injunction. If Enbridge is to be extended to other condemnation matters, perhaps legislative
quick-take will no longer be a “horse trading” feature in the Illinois legislature.
c. [5.9] Oppose the Condemnation at the Pre-Resolution Stage
If there is no supporting resolution by the condemning body, there will be no condemnation.
The condemnation may be opposed at the village or school board meeting stage. If the project is
for a public utility or pipeline project, there must be an approval of the right to condemn granted
by the Illinois Commerce Commission (or in a federal taking, by the Federal Energy
Commission).
Kreutzer v. Illinois Commerce Commission, 404 Ill.App.3d 791, 936 N.E.2d 147, 344 Ill.Dec.
5 (2d Dist. 2010), is an example of how the affected owners may seek to limit the route and/or
take of a proposed right-of-way and condemnation. The case is also a map of how the objectors
may pursue their objections at the early stages before the ICC. The condemning body (whether
village, county, forest preserve, or other) must pass the resolution to “get the ball rolling” for
condemnation. The condemning public body will have location, size, public purpose, and many
other exhibits available for public comment. Often there are public meetings that are held where
public comment is invited concerning the route, size, cost, and impact the proposed project may
have. The results of these public meetings and the objections are passed on to the regulatory
authority that must ultimately pass the condemnation resolution.
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§5.10
ILLINOIS EMINENT DOMAIN PRACTICE
Lakehead Pipeline Co. v. Illinois Commerce Commission, 296 Ill.App.3d 942, 696 N.E.2d
345, 231 Ill.Dec. 353 (3d Dist.), appeal denied, 179 Ill.2d 586 (1998), is a good example of how
those opposed to a project were able to defeat the right of condemnation. Lakehead sought
construction of a pipeline from the Wisconsin state line to the Indiana state line. Those opposed
to the pipeline retained counsel and fought the certification of the pipeline for condemnation
authority. The ICC hearing officer recommended granting condemnation rights to Lakehead. The
ICC, on a divided vote, refused to follow the hearing officer’s recommendation and denied
Lakehead the right to condemn, finding that there was no need for a new pipeline for crude oil.
Lakehead unsuccessfully appealed the ICC’s ruling that denied it the right of eminent domain.
Lakehead built the pipeline by buying a right-of-way from private landowners from Wisconsin to
Indiana. In some instances, Lakehead purchased whole farms, installed the pipeline, and resold
the farms subject to the pipeline easements.
There has been a great demand to turn abandoned railroad rights-of-way into jogging and
biking trails. The “rail to trails” programs are anathemas to farmers and the adjacent property
owners who do not want to have their privacy and seclusion invaded, while hikers and bikers
want the trails expanded. Federal, state, and local money is available for acquisition and
improvement of these trails. Forest Preserve District of Kane County v. Estes, 222 Ill.App.3d
167, 583 N.E.2d 640, 164 Ill.Dec. 724 (2d Dist. 1991), demonstrates legislation supported by
farmers. In Estes, the forest preserve district sought to link up park land with a bike and hiking
trail. Farmers had lobbied for, and secured, passage of legislation that provided that forest
preserve districts could not condemn a linear park without the concurrence of the township in
which the property was located. See 60 ILCS 1/115-5, et seq. The appellate court affirmed the
dismissal of the case, holding that the forest preserve district failed to prove that a long, common,
narrow parcel of land along the Fox River was not being acquired to link up a park since the
forest preserve district did not have township approval.
Libertyville Township was active in securing special legislation for its extensive open lands
program. The township had legislation passed giving townships the right to acquire land for open
space under the former Township Open Space Act. The township passed a referendum and bond
issue to fund the acquisitions. The statutory authority was very narrow. The former Township
Open Space Act provided that the total property to be acquired could not be less than 50 acres
unless part of the project was already owned by the township. In Town of Libertyville v.
Northwest National Bank of Chicago, 188 Ill.App.3d 809, 544 N.E.2d 1151, 136 Ill.Dec. 376 (2d
Dist. 1989), the parcel sought to be acquired was only 40 acres. The trial court dismissed the
complaint to condemn, which was affirmed on appeal. There is a series of Libertyville Township
condemnation cases that strictly follow the statutory powers granted to the township.
d. [5.10] Should the Condemnor or Condemnees Seek Early Resolution of the
Condemnation Action?
If there are sufficient legal grounds, a traverse may substantially delay the condemnation
action. The granting of a traverse, even for some technical omission, may doom the project. If the
project crashes due to a technical omission, hopefully the public body’s attorney’s malpractice
insurance will be in place.
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§5.10
With the exception of open lands, most public bodies want an early acquisition of land for the
project; thus, time is a bargaining point for the landowner. The public body must consider this
time element and how it will affect the project. The public body may pay a premium to acquire
needed private land quickly. It was reported that the Illinois Sports Authority paid owners a
premium to quickly acquire U.S. Cellular Field. By paying the owners the appraised value, it
acquired the land for the new ballpark with few condemnation suits and jury trials. Condemnors
should consider that often land acquisition is the smallest part of the costs of a major public
project. Delay in the project may increase construction and bond costs and the loss of the use of a
needed facility. Proposed condemnors and their attorneys should look to the timing of private
acquisitions such as the Chicagoland Speedway in Will County. The Indianapolis 500 owners put
the over-500-acre Chicago/Joliet racetrack land under contract in about four days. Construction
was timely completed, and the racetrack was an immediate success. At the trial level of
Department of Natural Resources of State of Illinois v. Brauer, 339 Ill.App.3d 723, 791 N.E.2d
120, 274 Ill.Dec. 324 (3d Dist. 2003), multiple speedway racetrack sales were offered and denied
admittance as evidence of comparable sales. The court held that these sales were an
“assemblage.” Assemblage sales are inadmissible. Trustess of Schools of Township 37 North
Range Number 13 East, Cook County, Illinois v. Chicago City Bank & Trust Co., 126 Ill.App.2d
302, 262 N.E.2d 80 (1st Dist. 1970); People ex rel. Department of Transportation v. Birger, 155
Ill.App.3d. 130, 507 N.E.2d 1321, 107 Ill.Dec. 952 (5th Dist. 1987). (CAVEAT: A chicken
farmer with five acres refused to sell his chicken farm to the speedway at any price. This small
chicken farm may be seen on the Google map of the racetrack).
If the public body has a long-range plan to acquire open space for a forest preserve,
conservation districts, or parks and the financing will come from taxes over future years, quicktake and the speed of the acquisition are not priorities. The filing date of the condemnation suit
sets the valuation date of the property to be acquired. Filing suit for land in an area of upwardly
spiraling market will set the value of the open space at filing date values. The forest preserve
district may not be called on to pay for the land for many years until all of the court proceedings,
trial, post-trial motions, and possible appeals have concluded. In Forest Preserve District of
DuPage County v. West Suburban Bank, 249 Ill.App.3d 900, 621 N.E.2d 215, 190 Ill.Dec. 346
(2d Dist. 1993), rev’d, 161 Ill.2d 448 (1994), suit to condemn was filed January 15, 1988. The
matter concluded after the Illinois Supreme Court ruled seven years later. In those seven years,
DuPage County land values at North Avenue and Prince Crossing Roads increased substantially,
all to the financial benefit of the forest preserve district and the detriment of the owner, Harry W.
Kuhn, Inc.
The delay in condemnation proceedings and the claimed abuse to owners are issues that the
Eminent Domain Act addresses. The valuation date of property condemned is the date of the
filing of the suit to condemn. Therefore, in Forest Preserve District of DuPage County, since the
property went up in value, the owner was paid compensation based on a value of the land seven
years prior. The EDA provides that if the condemnation case does not go to trial within two years
of the filing of the suit to condemn, the trial judge, in his or her discretion, may change the
valuation date to a date closer to the start of the trial. 735 ILCS 30/10-5-60. Advancing the
valuation date may (or may not) increase the value of the property being taken and will cost both
the condemnor and condemnee new expenses in appraisal, engineering, land planning,
depositions, and the like. The entire spectrum of the land taken may have changed. Comparable
sales may be different. Adjoining properties may have been developed. A host of other variables
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may have made the subject property more (or less) valuable. This EDA will affect the “green
grass” cases in which the public body does not need the property for a forest preserve, park, or
even for expected school expansions in the immediate future. A threatened change in valuation
date will give condemning bodies greater incentive to seek an early resolution of the
condemnation by trial or settlement.
III. ISSUES FOR BOTH SIDES TO CONSIDER IN PROSECUTION OR
DEFENSE OF A CONDEMNATION
A. [5.11] A Correct Legal Description
Often the legal description in a condemnation case is inaccurate. Whether the error is with the
surveyor, engineer, land planner, municipal manager, title insurer, or attorney, an inaccurate legal
description usually leads to having a traverse granted and condemnation dismissed.
It is mandatory that the property be precisely legally described. A survey and current title
should be acquired. On the eve of filing the condemnation suit, an update of the title should be
ordered to make certain that the proposed condemnee has not conveyed title.
The enabling ordinance should set out the exact legal description of the property sought to be
acquired, the purpose of the acquisition, the authority of the condemning body and staff, and that
attempts should be made to acquire the property by good-faith negotiation, but if negotiations fail,
the condemning body’s attorney is directed to commence a condemnation action for the
acquisition of the property.
It seems fundamental that if the area being condemned is not in the area described for the tax
increment financing district, or Illinois Commerce Commission order, it is not subject to
condemnation. In Village of Skokie v. Gianoulis, 260 Ill.App.3d 287, 632 N.E.2d 106, 198
Ill.Dec. 47 (1st Dist. 1994), the village brought a condemnation action (under its claimed home
rule) to condemn a gasoline station, three vacant lots, and a partially vacant building for
redevelopment. The owners filed a traverse, claiming the taking was excessive, unnecessary, and
an abuse of discretion. The vacant lots were not included in the described TIF area. The trial court
struck the three vacant lots from the taking. The village passed another ordinance including the
three lots in the redevelopment area. In the hearing on the traverse, it was brought out that the
owners of the gasoline station had sought to renovate their property, and the village denied the
renovation attempts. The actions of the village and the statements of its trustees were properly
admitted as statements against interest in defeating the village’s condemnation efforts. The trial
court granted the traverse in favor of the owners of the gasoline station and the commercial
building. The appellate court affirmed the dismissal of the proceedings against the owners,
declaring that redevelopment alone by a municipality is not a purpose for taking provided by
statute. The court held that the village “clearly abused its power.” 632 N.E.2d at 113. The actions
of public bodies in denying owners’ attempts to renovate their property are discussed in the
paragraphs below.
In City of Marseilles v. Radke, 287 Ill.App.3d 757, 679 N.E.2d 125, 223 Ill.Dec. 181 (3d Dist.
1997), a consent judgment was entered transferring ownership of a rail easement to the city. The
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owner then discovered that the rail easement was not within the legal description of the TIF
district. The owner sought to vacate the consent judgment, and the trial court denied the vacation.
The appellate court reversed, holding that if the rail easement was not within the TIF district, then
the trial court had no jurisdiction to enter the consent judgment. The matter was remanded to the
trial court to determine whether the rail easement was within the TIF district.
Radke should be compared with Kleinschmidt Inc. v. County of Cook, 287 Ill.App.3d 312,
678 N.E.2d 1065, 223 Ill.Dec. 57 (2d Dist. 1997). In 1985, Kleinschmidt Inc. owned land along
Lake Cook Road. Cook County sought to improve the road and passed a resolution to condemn
the Kleinschmidt property if it could not be acquired by purchase. With condemnation imminent,
the owners sold the property to Cook County. Cook County filed for tax exemption for the
property, stating that the property had been acquired for road purposes. Instead of building a road,
Cook County sold a portion of the property to a private party. The original owners filed a
declaratory judgment action claiming that the conveyance to the private party was illegal and
sought to have the property reconveyed to the original owners. The trial court held that because
the parties had agreed to the amount of compensation and no condemnation action was ever filed,
there was no taking, hence, no reconveyance. The appellate court affirmed. QUERY: Would the
property have been returned to the owners if they had entered into a consent judgment of
condemnation instead of a sale under the threat of condemnation?
It is embarrassing to go through an entire condemnation suit and trial only to find that the
property condemned had the wrong section number in the legal descriptions, including the
complaint, quick-take petition, and vesting order. The attorney’s malpractice carrier also takes a
dim view of the attorney not having condemned the right property. The property owner will be
joyous that he or she did not lose the property and that the condemning body, its title company,
surveyor, or attorney and their malpractice carriers will step forward with a bundle of cash to
have the problem go away.
City of Chicago v. Boulevard Bank National Ass’n, 293 Ill.App.3d 767, 688 N.E.2d 844, 228
Ill.Dec. 146 (1st Dist. 1997), was a suit for the acquisition of the Oliver Building, which is
contiguous to the Oriental Theater on Randolph Street and diagonal from the Richard J. Daley
Civic Center. The Oliver Building had been designated to be rehabilitated and not condemned.
The Oriental Theater’s stage was too shallow for the musical productions the owners wished to
present. It needed the property next door — the Oliver Building — to expand the Oriental’s stage.
The city filed suit to condemn the Oliver Building. The Oliver Building’s owners filed a traverse,
claiming the Oliver Building was designated in the enabling ordinance to be rehabilitated, not
condemned. The trial court denied the traverse. The appellate court held that Chicago need not
amend its enabling TIF ordinance before assembling the needed real estate. The appellate court
held that the TIF project had not changed to the extent that a new approval process was required
to condemn the Oliver Building next door to add to the Oriental Theater stage.
However, Illinois State Toll Highway Authority v. DiBenedetto, 275 Ill.App.3d 400, 655
N.E.2d 1085, 211 Ill.Dec. 702 (1st Dist. 1995), held that failure to specifically identify the
property being condemned in the enabling ordinance was fatal to the condemnation action. In
DiBenedetto, Sears entered into an agreement with the Village of Hoffman Estates calling for an
interchange on the Northwest Tollway at Beverly Road near the new Sears headquarters.
Hoffman Estates was to acquire needed interchange property in the name of the tollway authority.
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The enabling ordinance of Hoffman Estates identified the interchange location but did not
specifically identify the property to be acquired with a precise legal description. The tollway
authority commenced suit. The tollway authority’s initial enabling resolution authorized
acquisition and construction of the interchange on “property . . . at the intersection of Beverly
Road and the Northwest Tollway” where the various parcels of property were located. 655
N.E.2d at 1088. The tollway authority passed subsequent resolutions specifically identifying the
properties to be condemned. The resolutions setting out the precise legal descriptions were passed
before the condemnation suits were filed.
The trial court held that the initial enabling resolution generally, and not specifically,
identifying the property was insufficient and subsequent efforts to cure the defect and specifically
identify the property to be condemned were also insufficient. The appellate court affirmed the
granting of the traverse, holding that “when considering whether a resolution or ordinance
contains a description of the property, stringent standards will be applied.” 655 N.E.2d at 1090.
It is difficult to square Village of Cary v. Trout Valley Ass’n, 282 Ill.App.3d 165, 667 N.E.2d
1082, 217 Ill.Dec. 689 (2d Dist. 1996); DiBenedetto, supra; and Boulevard Bank, supra. In
Boulevard Bank, a traverse claiming failure to comply with all the technicalities of condemnation
was overruled. In DiBenedetto, there were preliminary agreements and resolutions to acquire a
tollway interchange at a particular crossroads. The tollway authority adopted a general resolution
that would keep Sears’ headquarters in Illinois. When Hoffman Estates could not acquire the land
by negotiation, the tollway authority passed resolutions that specifically identified the property to
be condemned.
The federal procedures for condemnation are covered in Chapter 11 of this handbook. Federal
rules do not require such specificity in identifying proposed condemnation takings. In Guardian
Pipeline, L.L.C. v. 529.42 Acres of Land, 210 F.Supp.2d 971 (N.D.Ill. 2002), Judge James B.
Moran, Sr. ruled that the legal description of the farm, and not the precise location of the pipeline
course through the farm, was sufficient to defeat a motion to dismiss the pleadings for lack of
legal specificity.
B. [5.12] The Eminent Domain Act
The power of condemnation is inherent in the sovereign. The State of Illinois, as the
sovereignty, has the power to acquire property for public use by condemnation. This power is set
out in the federal and state Constitutions and is implemented by state statute and court decisions.
U.S.CONST. amend. V; ILL.CONST. art. 1; §15, 735 ILCS 30/1-1-1, et seq. It is only through
the statutory implementation that various political subdivisions or entities acquire the right of the
power of condemnation. Failure of the attorney for the condemnor/public body may be
devastating to the public body, owner, their respective attorneys, and their attorneys’ malpractice
carrier if they have one. Thus, the first step in representing a condemnor (public body) or the
condemnee (owner) is a very careful study of the enabling statute granting the public body the
right to condemn. The condemning public body is limited to condemning only to the extent, for
the purposes, and for the uses provided by statute
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C. [5.13] A Traverse Could End the Condemnation
A traverse is the method of challenging the condemnor’s right to bring a condemnation action
for the taking of private land. Failure of the owner to file a traverse will be deemed a waiver of
any objections to the taking. Only by filing a traverse setting forth all the legal objections will
those objections be reserved for appeal. It is best to set forth all specific objections. However, see
Forest Preserve District of DuPage County v. Miller, 339 Ill.App.3d 244, 789 N.E.2d 916, 273
Ill.Dec. 742 (2d Dist. 2003), in which the forest preserve district condemned a 35-acre parcel near
the Schaumburg Flyers’ baseball field. The owner filed a pro se one-sentence traverse that said, “I
Jack Miller am filing . . . this traverse/counterclaim formally objecting to the condemnation of my
property at 7 N 601 Rodenburg Road Roselle Illinois by the Du Page County Forest Preserve.”
789 N.E.2d at 919.
The trial court denied the traverse, tried the case, and entered judgment. The trial court then
set aside the judgment and dismissed the case. The trial court was affirmed on appeal. The forest
preserve district conceded that the legal description was faulty and had filed an amended
complaint with an amended legal description two years after the commencement of the
proceedings. The appellate court held that the owners had preserved their right to challenge the
condemnation by filing the one-sentence objection in the nature of a traverse. The one-sentence
challenge was deemed good even though 735 ILCS 5/2-603(a) provides that a traverse must be a
plain and concise statement of the pleader’s cause of action. The appellate court gave the same
admonition that is given here, that the condemning body “can exercise the power of eminent
domain only when such grant is specifically conferred by legislative enactment, and then only in
the manner and by the agency so authorized.” 789 N.E.2d at 924.
Rock River Water Reclamation District v. Dimke, 2016 IL App (2d) 150926-U, is a good
primer for all condemnation actions to be taken by a local body. In this case, Rock River sought a
sanitary sewer easement outside its municipal limits and across a private 29-acre parcel. Rock
River had a plan that included engineering and planning the proposed route of the sanitary sewer;
estimates of costs of the project; appraisals of the easement rights to be taken; consideration of
the needs and requests of the land owner; the determination that Rock River had the authority and
the right to condemn the easement even though it was not within the village limits; an enabling
ordinance to exercise eminent domain; and the ability to finance the litigation and pay an award
of compensation.
Rock River is also a good primer on actions that the condemnee/owner should avoid. The
condemnee should concentrate on those matters that may be sustained by a court and avoid
matters that the owner will surely loose. Dimke made numerous objections that had little legal
merit. The lack of “good-faith” settlement negotiations is often a good challenge. In Rock River, it
appears that some of the demands were “off the wall.” An appraisal of $650,000 for an
underground easement across 29 rural acres is unreasonable. A seven page single-spaced demand
letter is highly unusual. Dimke’s property had a septic system, the removal of which was one of
Dimke’s demands. Dimke should have sought the right to hook his property up to the sewer line
and fill in the septic tank with dirt. A sewer for Dimke’s 29 acres would have increased the value
of his real estate. Demands, such as $10,000 credit towards future sewer bills, were not legally
possible. Other demands were equally outrageous. When Dimke was approached for a proposed
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sewer, Dimke should have welcomed the opportunity to have the sewer brought to his property
with the right to hook on and provide a public sanitary sewer to the 29 acres.
D. [5.14] The Condemnation Resolution
Every condemnation action must be based on a properly enacted enabling resolution.
Condemnation by a public body must be based on a resolution by the condemning body calling
for the condemnation of specific land. The lawyer for the public body should prepare the
condemnation resolution for the public body. That resolution should stand against any future legal
objection or traverse by the condemnee. The lawyer must also follow up that the ordinance is
legally adopted by the public body. In Forest Preserve District of Cook County v. Chicago Title
& Trust Co., 2015 IL App (1st) 131925, 42 N.E.3d 440, 397 Ill.Dec. 525, in 2000, the district
filed suit to condemn an owner’s land based on an ordinance allegedly passed by the district’s
Board of Commissioners in 1991. The district and owners agreed to a settlement of $1.7 million.
An agreed order of settlement was entered on March 6, 2013. It is assumed the owners withdrew
the settlement money from the deposit made by the district to the county treasurer. After the
settlement had been made, the owners learned that in other litigation — the 1991 resolution of the
District to acquire the owners’ (and other owners’) lands — had not actually and formally been
adopted. In February 2014, the owners filed a 735 ILCS 5/2-1401 petition to have the agreed
order of March 2013 vacated. The owners claimed the district had falsely represented that a valid
ordinance authorizing condemnation had been passed when, in fact, the enabling ordinance had
not been voted on.
The district filed a motion to dismiss the §2-1401 petition claiming that the owners never
filed a traverse challenging the district’s right to condemn and that they had agreed (and paid) the
$1.7 million settlement. The court granted the district’s motion to dismiss but also granted the
owners the right to file an amended petition, which the owners did. The district moved to dismiss
the owner’s amended petition. While the motion to dismiss was pending, the appellate court
affirmed the granting of a motion to dismiss in Forest Preserve District v. First National Bank of
Evergreen Park, 383 Ill.App.3d 1138, 968 N.E.2d 215, 360 Ill.Dec. 136 (1st Dist. 2008), finding
that the district could not acquire the property and did not pass the required condemnation
ordinance.
The district claimed the owners had entered into an agreed order in 2013. The trial court
found that since there was no valid resolution of condemnation, the court lacked jurisdiction to
enter the “agreed order” of condemnation. The agreed order was vacated. The appellate court
affirmed the vacation of the agreed order of $1.7 million. It was modern day video of the public
meeting of the district’s board meeting in 1991 that convinced a court in 2015 that no valid
ordinance had been passed by the commissioners and, therefore, was not legally adopted.
Lawyers are warned that videos are everywhere, including public meetings.
Every public body lawyer should consider the fall out of Forest Preserve, supra. It should be
assumed that the forest preserve district must start over with a valid resolution of condemnation if
the district still needs the condemned land. The take date would be advanced from 2000, when the
case was first filed, to a current date. Would the issue of res adjudicata be raised as it was in City
of Chicago v. Midland Smelting, 385 Ill.App.3d 945, 896 N.E.2d 364, 324 Ill.Dec. 578 (1st Dist.
2008)? What are the malpractice consequences? When does the statute of limitations run on
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possible malpractice? Who had the obligation to confirm that a valid ordinance of condemnation
had, or had not, been adopted? The answer to most of these questions is to pay the owner more
money and hope the problem will go away. The money may come from the district (and its
taxpayer’s), the attorneys’ malpractice carrier (or the attorneys’ personal account if there is no
malpractice coverage), and a lower demand by the owner to solve the case and have settlement
money now rather than after an expensive trial.
In County of St. Clair v. Caseyville Rifle & Pistol Club, Inc., No. 5-09-0100, 2011 WL
10483334 (5th Dist. 2011) (unpublished), the Caseyville Rifle and Pistol Club had a shooting
range at, or near, land that was in a flight pattern approach to Scott Air Force Base located in St.
Clair County. The United States Air Force opposed the rifle club’s shooting range near the
airport’s flight approach. The St. Clair County Board entered into an executive session to discuss
“potential litigation.” When the board returned to its regular session, it voted to approve “the
recommendation as presented by Council in Executive Session regarding Potential Litigation.”
2011 WL 10483334 at *8. No mention was made of condemnation, a resolution for
condemnation, or other action leading up to the filing of the suit to condemn the gun club land.
The Rifle Club filed a traverse that was granted by the court and affirmed on appeal. The trial
court awarded the Rifle Club $80,000 in attorneys’ fees and costs. The rule of law in
condemnation is simple: No resolution, no condemnation and payment to the owner of attorney
fees and costs.
E. [5.15] Failure To Follow the Law Will Lead to Dismissal
The importance of carefully following the enabling statue granting the public body the right
to condemn is found in Village of Cary v. Trout Valley Ass’n, 282 Ill.App.3d 165, 667 N.E.2d
1082, 217 Ill.Dec. 689 (2d Dist. 1996) (Cary I) and 297 Ill.App.3d 63, 696 N.E.2d 1154, 231
Ill.Dec. 583 (2d Dist. 1998) (Cary II). The Village of Cary commenced a condemnation action for
easements to extend a sewer line adjacent to, but outside, its corporate limits. The sewer line
would serve a new subdivision within the village. Trout Valley was in a “no growth” mode and
filed a traverse and motion to dismiss contending that the village had not complied with 65 ILCS
5/11-139-1, et seq. This statute provides that the municipal ordinance should set out the estimated
cost of the contemplated project, the period of usefulness, and the method of defraying the cost.
The statute also provided for publication in the local newspaper of the enabling ordinance within
ten days of its enactment. 65 ILCS 5/11-139-6.
At the hearing on the traverse, the Village of Cary did not present any evidence that the
ordinance had been published, as required by statute, since the developer of the subdivision was
paying for the sewer project, including acquisition costs. The estimated costs, length of usefulness
of the sewer, and the method of defraying the costs of the project were not included in the
ordinance. Cary I, 667 N.E.2d at 1087. The trial court denied Trout Valley’s defense, and the
matter proceeded to trial. The jury awarded Trout Valley $50,000 in compensation for the
easements, and Trout Valley appealed. The village claimed it need not comply with the statutory
provisions relating to costs, sewer life, and publication since the developer was paying all the
bills. The appellate court reversed the denial of the traverse, holding that the “statutory
language . . . is clear and unambiguous” and that any municipality availing itself of eminent
domain must comply with all statutory requirements. Cary I, 667 N.E.2d at 1088. The case was
remanded to the trial court for the entry of an order of dismissal.
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On remand, Trout Valley sought attorneys’ fees and costs not only for the trial of the case,
but for the appeal of Cary I. The trial court awarded Trout Valley $52,988 in fees and costs for
the trial but denied Trout Valley any fees and costs for the appeal of Cary I. On appeal (and
cross-appeal), the appellate court affirmed the award of $52,988 for the trial fees. The appellate
court also remanded the case for the second time with directions to enter judgment of $18,020 for
Trout Valley’s fees and costs for the appeal in Cary I. Cary II, 696 N.E.2d at 1159. The appellate
court denied Trout Valley fees and costs for the appeal of Cary II. It is not clear in the published
opinion why Trout Valley was not awarded fees and costs in the second appeal since the court
found that the trial court erred in failing to award fees and costs for the appeal of Cary I and Trout
Valley had to take the second appeal.
F. [5.16] Extending the Take Date
The valuation date of condemnation is the date the condemnation suit is filed. Often the jury
trial setting just compensation may be years later. If the value of the condemned property and
comparable sales support a new valuation, consideration should be made to have the court set a
later take date. This resetting a take date must be made by petition setting forth sufficient grounds
for advancing the valuation date. As of this writing, no appellate citations have addressed
advancing the take date under the Eminent Domain Act. If there has been a long delay in having a
condemnation action being tried, the owner should consider seeking a new updated take date. If
the delay has been caused by the owner, such a plea will probably be denied. The owner and
public body must consider the costs of new appraisers, land planners, engineers, and depositions.
IV. [5.17] TRANSFERRING PROPERTY FROM ONE PRIVATE OWNER TO
ANOTHER BY CONDEMNATION
Although there are fewer tax increment financing and redevelopment districts now, some TIF
and redevelopment districts are still alive and active. An attorney must be alert that if blight
should come to a residential or an industrial zoned use, and the public body seeks to change this
zoned district to another use, the public body, with condemnation power, is standing at the ready
to serve the public’s wishes and make the change. No man’s or woman’s land is secure from
condemnation!
A. [5.18] History: Tax Increment Financing, the Tax
Redevelopment Act, and Redevelopment Authorities
Increment
Allocation
Following World War II, there was a shortage of housing for the “Greatest Generation.”
Housing authorities were established in many Illinois communities to provide housing for the
elderly and low-income families. Private property was condemned and public housing was
erected under public housing authorities. During the depression of the 1930s followed by no new
construction during World War II, many Illinois cities had become run down and blighted. Cities
wanted to tear down blighted and slum areas and redevelop. Illinois adopted the Tax Increment
Allocation Redevelopment Act (TIA), 65 ILCS 5/11-74.4-1, et seq. The TIA is a complex
statutory scheme for municipalities to establish redevelopment districts called “TIF (tax
increment financing) districts.” The TIA provides for the condemnation of properties within a
redevelopment area of a TIF district. The redevelopment area must be in an area that is blighted
or about to become blighted. Many TIF districts failed due to opposition from schools, libraries,
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and other taxing bodies; the complexity of financing the project; and most frequently, the length
of time required to acquire the key pieces of the development area by condemnation. Many
municipalities hired TIF specialists to put together the boundaries of the redevelopment area and
prepared analyses to support the claims that the TIF district qualified as a blighted area and was
subject to acquisition by condemnation. Many owners claimed these analyses were flawed and
untrue. The TIF specialist usually found enough factors to qualify the redevelopment area for a
TIF district even though the area was an upscale, prestigious community. The TIF specialist’s fee
depended on the TIF district going forward with a bond issue. The redevelopment area might
have been a single parcel of land or an entire area. Redevelopment areas were gerrymandered to
take in certain properties and avoid properties where substantial opposition might develop from
the owners, other taxing bodies, and taxpayers.
The TIF district stays on the tax rolls at its current value while the new hotel or shopping mall
is developed. The redeveloped district does not come back onto the tax rolls at its new
redeveloped value for many years. The difference in the real estate taxes saved by the developer
is used to help finance the new hotel or shopping center.
A development authority has similar purposes as a TIF district, covers a larger area, and
comes about by specific Illinois legislation. The Southwestern Illinois Development Authority
Act (SWIDA), 70 ILCS 520/1, et seq., is an example of such an authority. The stated purpose of
SWIDA 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).
SWIDA was formed to promote development in Madison and Clinton counties in southwestern
Illinois near St. Louis.
Many TIF districts, SWIDA, and other redevelopment programs have the right to take private
property from one private owner and transfer it to another private owner by condemnation.
B. Challenges
1. [5.19] Elimination of Slums
There have been many constitutional challenges to the state permitting a public body to take
by condemnation the private property of one person and transfer the property to a developer so
the developer may make a profit. Until the 2007 enactment of the Eminent Domain Act, most tax
increment financing districts have been able to survive constitutional challenge.
In Southwestern Illinois Development Authority v. Al-Muhajirum, 318 Ill.App.3d 1005, 744
N.E.2d 308, 253 Ill.Dec. 26 (5th Dist. 2001), SWIDA condemned a mosque in order to transfer
ownership of the mosque to private investors who sought the land to build a new, multimilliondollar residential complex. The mosque challenged the trial court’s decision that approved
SWIDA’s eminent domain quick-take action and argued that the taking of the mosque property
violated both the United States and Illinois Constitutions. The trial court found that the mosque
was located in the heart of a blighted area that included unoccupied and unattended slums. The
exercise of condemnation powers for the purpose of eliminating slums or blighted property was a
proper use for a valid public purpose. The trial court found that the transfer of the mosque
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property to the residential developer would bring about the kind of positive change that was
contemplated by the legislation, which was to eliminate slums and blight. The trial court denied
the mosque’s traverse and motion to dismiss. The mosque was permitted an interlocutory appeal
to the appellate court, which affirmed the trial court’s denial of the traverse and motion to
dismiss.
2. [5.20] Parking for Racetracks
On April 4, 2002, the Illinois Supreme Court rendered an opinion in Southwestern Illinois
Development Authority v. National City Environmental, L.L.C., 199 Ill.2d 225, 768 N.E.2d 1, 263
Ill.Dec. 241 (2002). The case is important because of the numerous turns this case has taken from
the trial court to the final decision of the Illinois Supreme Court. SWIDA brought a condemnation
action to acquire 148.5 acres of land owned by National City Environmental so an automobile
racetrack could expand its operations by creating an open parking lot on 148.5 adjacent acres.
SWIDA had earlier issued $21.5 million in revenue bonds to finance the construction of the
racetrack. The racetrack was an overwhelming success and had brought over 400,000 people to
see stock cars zip around the track. These spectators contributed to the erection of hotels,
restaurants, and tourism in the St. Clair County area. The large number of racetrack patrons also
contributed to horrendous traffic jams. The racetrack requested that SWIDA acquire the 148-acre
adjacent National City Environmental property for a parking lot by SWIDA’s power of
condemnation. The racetrack agreed to pay all of SWIDA’s expenses and costs, including the
compensation for the property. SWIDA proceeded with the condemnation. National City
Environmental challenged SWIDA’s right to take private property for a racetrack parking lot. The
trial court denied National City Environmental’s traverse, entered a quick-take order in favor of
SWIDA, and denied a motion to stay the vesting of title in SWIDA pending appeal. National City
Environmental filed an interlocutory appeal. The appellate court reversed the trial court, holding
that SWIDA did not have the authority to condemn the property and that the condemnation was
for a private use in violation of the constitutional limitation against taking private property except
for public purposes. The appellate court held that a private racetrack parking lot was not a public
purpose.
SWIDA appealed the appellate court’s reversal to the Illinois Supreme Court. Numerous
amicus curiae were submitted, including the farm bureau, municipal leagues, counties, cities
(including the City of Chicago), and even the Institute for Justice from Washington, D.C. On
April 19, 2001, the Supreme Court, in a four-to-three decision, reversed the appellate court and in
a lengthy opinion written by Justice Freeman, reinstated SWIDA’s condemnation action to
acquire the vacant land for the racetrack’s private parking lot. Southwestern Illinois Development
Authority v. National City Environmental, L.L.C., No. 87809, 2001 WL 403340 (Apr. 19, 2001).
Justice Miller concurred with the majority as did Justices McMorrow and Fitzgerald. Justices
Thomas, Kilbride, and Harrison dissented, with Justice Harrison writing an extensive dissent.
After the decision was rendered, but before the decision was final, Justice Miller retired from
the Supreme Court and Appellate Court Justice Rita Garman was appointed to fill Miller’s
vacancy. After Justice Garman took her seat on the Supreme Court, National City
Environmental’s motion for rehearing was granted. Nearly a year later, the Supreme Court
withdrew the preliminary opinion of Justice Freeman and with freshman Justice Garman writing
the new majority opinion, affirmed the appellate court and held that the taking was for a private,
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rather than a public, use and therefore not permissible. The court noted that the racetrack could
have built a parking structure rather than expanded ground parking. Justice Freeman, who had
originally written the majority opinion in which Justices Fitzgerald and McMorrow joined, now
wrote the dissenting opinion. Justice McMorrow stayed on board with Justice Freeman in his
dissent. Justice Fitzgerald, who had originally favored the condemnation, now joined Justice
Garman’s opinion that the condemnation for a private parking lot was improper. Justices
Kilbride, Thomas, and Harrison retained their positions that the condemnation for a private
parking lot was improper, thereby making the final decision five to four in favor of National City
Environmental, the owner.
While SWIDA was wrestling with the issue of taking land from a private owner and handing
it over to another private owner for a stock car racetrack that boosted the economy of the entire
southwestern Illinois area, the issue of taking private land from one person and delivering it to
another under the guise of condemnation was getting national attention. CBS television aired an
episode about the issue on 60 Minutes. The Wall Street Journal published an extensive article on
the pros and cons of transferring property from one private owner to another by condemnation.
Owners deemed it unfair and unconstitutional to take their property and turn it over to a developer
for a profitable venture. Municipalities consider single-family/hold-out owners as blocking
progress and economic development of an entire community.
Like Illinois, other states were facing these issues, including the state of Connecticut. New
London, Connecticut, had been a submarine base for the United States Navy. The submarine base
closed. The city of New London created a TIF district that included the submarine base together
with contiguous land including older single-family homes. The plan was to develop the area into
a hotel/office/retail shopping center complex next to a new Pfizer pharmaceutical installation.
Kelo v. City of New London, Connecticut, 545 U.S. 469, 162 L.Ed.2d 439, 125 S.Ct. 2655 (2005).
The New London project was similar in many respects to Glenview, Illinois’ development of the
closed Glenview Naval Air Station of over 1,000 acres. Glenview acquired the air station from
the federal government, established a tax increment financing district, developed a long-range
development plan, and is in the process of developing an upscale community complete with all
municipal services, including a Metra commuter rail station. Fortunately, Glenview did not have
to resort to condemnation to flesh out its development.
The Eminent Domain Act divides condemnation takings into five different categories with
similar requirements for most of the categories and additional burdens on condemning authorities
for other categories. The most significant part of the EDA is the shifting of the burden of proof
from the owner to the condemning body, particularly in the TIF area.
EXAMPLE: a TIF district could be formed and last for over 20 years. The condemnation might
be filed 10 years after the formation of the TIF district. If the owner challenged the municipality,
claiming that there was no basis for the finding of blight as a foundation for the TIF district, the
burden previously was on the owner to show that there was no blight 10 years before the
condemnation suit was filed. The analysis of the TIF specialist’s report prepared several years
earlier showing that there were vacancies, building violations, and crime in the TIF district was
prima facie evidence that there was a blight basis for the creation of the TIF district.
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§5.21
ILLINOIS EMINENT DOMAIN PRACTICE
City of Batavia v. Sandberg, 286 Ill.App.3d 991, 677 N.E.2d 1010, 222 Ill.Dec. 476 (2d Dist.
1997), Village of Deerfield v. Chicca, 293 Ill.App.3d 1141, 718 N.E.2d 1092, 241 Ill.Dec. 238
(2d Dist. 1998) (Rule 23), and Village of Wheeling v. Exchange National Bank of Chicago, 213
Ill.App.3d 325, 572 N.E.2d 966, 157 Ill.Dec. 502 (1st Dist. 1991), challenged the finding that
there was blight as a basis for the TIF district. Due to the change in the EDA, these cited cases are
no longer a basis for defeating a traverse and should not be relied on.
The upper hand of the municipality has been changed by the EDA. The condemnor must
prove the necessity of the taking and also must prove that (a) the condemnor has a written
agreement with the developer to develop the property with a certain plan and give the reasons
why the owner’s property is necessary for the development; (b) the condemnation is in
accordance with a regional plan established under a county code, municipal code, or local land
resource management plan; or (c) the taking is pursuant to a comprehensive plan in accordance
with the state statute authorizing condemnation and the use of the property will remain in place in
accordance with the plan for 40 years, with the 40-year restriction recorded to run with the land.
Attorneys must carefully review the EDA and make many decisions as to the application of the
EDA to proposed TIF projects.
3. [5.21] Municipality’s Change in Plans
Tax increment financing districts often take many years to assemble as seen in the ten-year
delay in Village of Deerfield v. Chicca, 293 Ill.App.3d 1141, 718 N.E.2d 1092, 241 Ill.Dec. 238
(2d Dist. 1998) (Rule 23), set out in §5.20 above. Municipal priorities change, and financing
becomes unavailable or extinct. New ideas are developed and attempts are made to change the
redevelopment plan for the TIF district. This change was seen in City of Chicago v. Boulevard
Bank National Ass’n, 293 Ill.App.3d 767, 688 N.E.2d 844, 228 Ill.Dec. 146 (1st Dist. 1997),
when an additional building was added to the plan. In Chicca, supra, legislation was granted for a
“comprehensive” plan and not a “redevelopment” plan. Neither the trial nor appellate courts
deemed the difference in these cases significant enough to warrant the granting of a traverse in
either Boulevard Bank or Chicca.
In Henry County Board v. Village of Orion, 278 Ill.App.3d 1058, 663 N.E.2d 1076, 215
Ill.Dec. 562 (3d Dist. 1996), the Village of Orion changed its redevelopment plan and added an
industrial park without giving the statutory notice. Other taxing bodies objected and the
objections were sustained. The appellate court held that there must be compliance with the notice
requirements for a TIF district. The appellate court also upheld the lower court’s finding that the
TIF area was not sufficiently blighted, some parcels were not contiguous, and there was
insufficient notice of the changes in the TIF plan.
If the public body is determined to have a redevelopment plan that includes condemnation, it
should follow the enabling statute to the letter, precisely define a purpose that comports with the
statute, and establish the necessity and purpose for the creation of the redevelopment plan. If the
areas are blighted, or about to be blighted, the public body should have a documented survey
made by professionals familiar with TIF districts and determine whether the documented survey
of the proposed development area comports with the many legislative requirements in
establishing such blighted areas to qualify for redevelopment. Once the TIF district is established,
the public body should seek quick-take power from the legislature. If all is in place, the public
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body should proceed with acquisition of the redevelopment area by usual acquisition methods,
including purchase and condemnation, if necessary, and be prepared at trial to shoulder the
burden of proving that the area was in fact blighted, or about to be blighted, at the adoption of the
development plan.
The United States Seventh Circuit Court of Appeals case, City of Joliet, Illinois v. New West,
L.P., No. 15-2183, 2016 WL 3361519 (7th Cir. June 17, 2016), was a taking by the City of Joliet
to raze certain old residential buildings and replace them with new buildings in a redevelopment
district. The case affirmed an action to condemn two buildings in Joliet to make way for new
housing. The action was brought pursuant to the federal Fair Housing Act and other federal
statutes. Unlike the pipe line cases in which three commissioners are appointed to take testimony
and recommend compensation for pipeline easements, this case was tried on 100 different days
over a year and half. The Seventh Circuit Appellate judges suggested that the district court should
have empaneled a jury to try the issues and set fair compensation for the taking. The issues set out
in Joliet are similar to the TIF cases of which there are few. The impaneling a federal jury is
contrary to jury demands in federal pipeline cases. Guardian Pipeline, LLC v. 529.42 Acres of
Land, 210 F.Supp.2d 971 (N.D.Ill. 2002).
In City of Chicago v. Eychaner, 2015 IL App (1st) 131833, 26 N.E.3d 501, 389 Ill.Dec. 411,
the defendant, Eychaner, owned real estate that was zoned manufacturing. The City of Chicago,
under the Tax Increment Allocation Redevelopment Act, brought condemnation under its
redevelopment plan to take Eychaner’s land and transfer it to Blommer Chocolate Company.
Eychaner filed a traverse challenging the taking as unconstitutional. The trial court denied the
traverse, and the appellate court affirmed the denial of the traverse. However, the appellate court
(with Justice Hyman writing the opinion) found there was error in denying testimony on the
reasonable probability of rezoning the subject property to a higher use. The constitutional issues
claimed by the owners were denied by the trial court, and this denial was affirmed. The case was
remanded for a new trial on the issue of just compensation with the probability of rezoning now
being admitted in evidence.
In Village of East Dundee v. Village of Carpentersville, 2016 IL App (2d) 151084, Walmart
sought to move its store from a shopping center in East Dundee to a new Walmart Supercenter in
Carpentersville. Carpentersville had created a TIF district near this East Dundee border. East
Dundee filed a declaratory judgment action against Carpentersville claiming Carpentersville had
failed to meet certain provisions of the TIA (65 ILCS 5/11-74.4-3(q)(13)). East Dundee sought a
prohibition, injunction, and mandamus preventing the Walmart store’s move. At the outset of the
case, East Dundee sought a substitution of judges that the trial court (Judge Akemann) denied.
The appellate decision does not address the TIF issues and only reversed the denial of East
Dundee’s request for substitution of judges. The underlying issue that was not addressed was East
Dundee’s loss of sales tax revenues and real property tax receipts. The case was remanded to the
Circuit Court of Kane County to substitute judges and continue with the case.
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§5.22
ILLINOIS EMINENT DOMAIN PRACTICE
V. OTHER CONDEMNATION ISSUES
A. [5.22] Excessive Taking
The claim by owners that the public body is taking more land than the public body needs
usually falls on deaf ears. Public bodies have the power to determine their future needs for parks,
schools, sports authorities, and other projects. Kreutzer v. Illinois Commerce Commission, 404
Ill.App.3d 791, 936 N.E.2d 147, 344 Ill.Dec. 5 (2d Dist. 2010) (court held Commonwealth
Edison Company’s taking was excessive).
In Village of Woodridge v. Board of Education of Community High School District 99, 403
Ill.App.3d 559, 933 N.E.2d 392, 342 Ill.Dec. 806 (2d Dist. 2010), the village filed a
condemnation action against the school district. The school district filed a traverse that was
denied. The school district appealed. The appellate court affirmed the denial of the traverse,
holding that the school district’s holding of land for a future, and not an existing, use would not
preclude condemnation. The court further held that the school district’s holding of land for
“investment purposes” was not an existing use that would preclude condemnation. 933 N.E.2d at
409 – 410. The ruling in this case is contrary to school’s and park district’s past actions in
acquiring land for the future based on anticipated population growth.
In City of Chicago v. Midland Smelting Co., 385 Ill.App 3d 945, 896 N.E.2d 364, 324 Ill.Dec.
578 (1st Dist. 2008), the City of Chicago filed a suit to condemn Midland’s land, and landowner
sought to dismiss the condemnation on the basis of an excessive taking. There had been a
previous condemnation of a neighboring property that had caused a loss of parking. The Midland
taking was to replace the neighbor’s lost parking. A traverse was granted in the first case filed,
holding that there had been an excessive taking. The city then filed a second condemnation
seeking to take only one-half of the land sought to the original suit. Midland filed a traverse
claiming the second action was barred by the doctrine of res adjudicata. The trial court certified
two questions to be answered by the appellate court: (1) whether the judgment in the original
condemnation action bars the present action under the doctrine of res judicata; and (2) whether
the city’s proposed taking of Midland’s property is a proper exercise of the city’s power of
eminent domain.
The appellate court, in a lengthy opinion, determined that res adjudicata did not bar the
second action. The first action was found to have been an “excessive taking.” It is inferred that if
the city took the proper amount of land in the second action for its redevelopment program, this
take would be legal. This opinion points out that each case depends on the facts and
circumstances that exist at the time of the taking. Facts may change from the first action to a
subsequent taking. A lawyer faced with the problem of an excessive taking (or some other
deficiency in a condemnation) should pick himself or herself up from the loss, dust off the file,
find additional facts that support the taking, and file another condemnation for part, or perhaps
all, of the same property based on the new supporting facts and circumstances. After answering
the first question that there was no bar to the new action based on res adjudicate, the court
answered the second question that the city was properly exercising its power of eminent domain.
In planning a condemnation action, the public body is limited to taking only the land needed
for the proposed project. If the taking is excessive, the trial court, on the filing a traverse by the
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owner, will grant the traverse, dismiss the action, and assess fees and costs of the condemnation
against the public body. It is important that the public body’s lawyer have sufficient facts to
support the size of the proposed taking. This may call for affidavits from engineers, land planners,
and other experts to support the size of the taking. The lawyer for the public body should consider
whether the proposed taking is excessive and, if it is, file an amended petition reducing the size of
the take to an area that will pass “muster” against any claim that the taking is excessive. The trial
court might not permit the filing of an amended complaint changing the size of the take. If the
trial court grants the owners traverse and finds the taking excessive, the public body’s lawyer
must make a decision of what steps should be taken at that point. The lawyer may ask the trial
judge to include in the order granting the traverse, Supreme Court Rule 304(a) language that the
order is a final appealable and no just reason that order is enforceable may be appealed. The
public body’s lawyer may also consider, upon a claim that the taking is excessive, to voluntarily
dismiss the condemnation action and file a new suit with a reduced size of the take. Midland
Smelting’s hold that a claim of res adjudicate against a second reduced size suit will be denied.
If a traverse is granted due to an excessive taking, the attorney for the condemning body must
consider several options. An amended complaint might be filed with more supporting facts and
circumstances for filing suit for the same or smaller amount of land, or the attorney may decide to
file a new action with supporting facts and a smaller take. In either case, if the condemning body
dismisses or reduces the size of the take, the landowner will probably claim an abandonment of
the property not taken and seek attorneys’ fees and costs for the successful traverse. These fees
and costs might consist of appraisers, land planners, surveyors, engineers, depositions and, of
course, attorneys’ fees.
Inadequate available public sewer and water are often factual grounds for (1) reduction in fair
market value of the subject property, or (2) a claim that the proposed take is too large to be
adequately served by existing sewer and water. Other lack of public services might be added to
support a claim of excessive taking. Changing facts and circumstances are the foundation for
admission or denial of a traverse claiming excessive taking.
B. [5.23] Inverse Condemnation
Inversion condemnation is when the property owner brings a mandamus, or injunctive, action
against a public body seeking to have the public body file a condemnation for the taking of the
owner’s land. The mandamus action seeks a court order directing the public body to file a
condemnation against the owner. The injunction will seek to restrain the public body from
causing damage to the owner’s property. Both actions seek a monetary award from the public
body. The owner claims the public body is taking the owner’s land without compensating the
owner for the taking pursuant to the federal and state constitutions. Most inversion condemnation
actions have been unsuccessful for many reasons.
1. [5.24] When Is a Regulation a Taking and Not a Permissible Regulation?
Many local governments have been prone to thwart development by putting roadblocks in
front of property owners. These hurdles take many forms, including changes in zoning,
moratoriums on building; numerous appearances before a host of planning, zoning, and
architectural commissions; and just plain sitting on applications for building permits and
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§5.25
ILLINOIS EMINENT DOMAIN PRACTICE
inspections. Government bodies who have engaged in these activities have had their actions
approved by the Illinois and United States Supreme Court as discussed below. Owners claim that
such activity is a taking of their property in derogation of the Fifth Amendment of the United
States Constitution and most state constitutions, including that of Illinois. This claimed taking is
often challenged by the owners filing an inverse condemnation action against the public body that
is charged with the wrongful taking.
The United States Supreme Court has held that each set of facts must stand on its own.
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 216 F.3d 764 (9th
Cir. 2000), aff’d, 122 S.Ct. 1465 (2002). In Tahoe-Sierra, the owners owned lots around Lake
Tahoe on the California/Nevada line with the intent of building homes on hillside lots that sloped
down to the lake. The municipal newly formed planning agency imposed a moratorium on
building on the lots for fear that water runoff from the homes would pollute Lake Tahoe. When
the moratorium was about to be lifted, environmentalists filed suit to freeze further development.
The landowners filed suit in federal court, claiming that their properties were being taken for
public use without just compensation in violation of the Fifth Amendment of the United States
Constitution. The federal trial judge held that the original three-year moratorium was a taking that
entitled the property owners to compensation. The Tahoe Planning Agency (the public body)
appealed. The court of appeals reversed, holding that the three-year delay was not a taking since
the property owners had not been deprived of all of the use of their property. The court of appeals
found the moratorium in the use of the land was only a small fraction of the total useful life of the
Tahoe properties. The United States Supreme Court in a six-to-three decision affirmed the court
of appeals. The Supreme Court did not go as far as the court of appeals, holding instead that
lower courts should consider the facts of each case when evaluating whether there has been a
taking. Lawyers and trial courts are left to determine when the local government steps over the
line of taking in its use of red tape.
Some local governments stall and delay planning and zoning meetings, hold up the issuance
of building permits, require multiple revisions and submissions of plans, and enact development
moratoriums similar to Lake Tahoe’s. Even though considered unfair by owners, such a delay is
not a taking, and developers may see more government intervention with development that does
not fit the local governments’ plans. Zeitz v. Village of Glenview, 277 Ill.App.3d 891, 592 N.E.2d
384, 169 Ill.Dec. 897 (1st Dist. 1992) (discussed in §5.25 below).
2. [5.25] Downzoning
The changing of a zoning classification or “downzoning” has not been considered a taking.
Zeitz v. Village of Glenview, 277 Ill.App.3d 891, 592 N.E.2d 384, 169 Ill.Dec. 897 (1st Dist.
1992). The downzoning in Zeitz was upheld against the owner. In LaSalle National Bank Ass’n v.
City of Oakbrook Terrace, 393 Ill.App.3d 905, 913 N.E.2d 130, 332 Ill.Dec. 535 (2d Dist. 2009),
the beneficial land trust owners brought suit against the municipality claiming downzoning and
an attempt to restrict billboard use was a taking. The owners had not exhausted their remedies
with the city before filing suit. The trial court dismissed the complaint, holding that the owner
must make a showing that the municipality had gone “too far” in attempting to take the claimant’s
interest in land. 913 N.E.2d at 136. The appellate court affirmed the dismissal.
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If a claim of taking by a municipality is to be made, the attorney for the owner should take all
reasonable steps to attempt to resolve the dispute before seeking inverse condemnation.
Objections must be raised to the issuance of citations, attendance, and written objections to
downzoning hearings. Even under Zeitz, inverse condemnation actions probably will not preempt
downzoning ordinances.
In Cribben v. City of Chicago, 384 Ill.App.3d 878, 893 N.E.2d 1016, 323 Ill.Dec. 542 (1st
Dist. 2008), the landowners expended funds developing a parcel of property based on existing
zoning. The city downzoned the property. The trial court held that the landowners relied on the
existing zoning in the development of the property and ruled in the landowners’ favor. The
appellate court affirmed the win. It is difficult to square Cribben with Zeitz. Any downzoning will
result in a claim of an unconstitutional inverse condemnation taking.
Actions for violations of the owner’s civil rights under 42 U.S.C. §1983 are joined in inverse
condemnation actions against the public body. Section 1983 authorizes a party who has been
deprived of a federal right under the color of state law to seek relief through “an action at law,
suit in equity, or other proper proceeding for redress.” These actions are for injunctive relief as
well as damages.
In Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422 (9th Cir. 1996),
aff’d, 119 S.Ct. 1624 (1999), the developer, Del Monte Dunes, sought to develop land within the
City of Monterey, California. The city, in a series of repeated rejections, denied proposals to
develop the property. At each rejection the city imposed more rigorous demands on the
developers until Del Monte Dunes filed suit in federal court under §1983. The case went to trial
and resulted in a jury award in favor of Del Monte Dunes. The Ninth Circuit Court of Appeals
affirmed the judgment, and the United States Supreme Court affirmed the award of damages. The
city claimed that its land use decisions were immune from judicial scrutiny. The courts rejected
this argument. The court drew similarities between a civil rights action under §1983 against a
public body and inverse condemnation.
The Del Monte property was 37.6 acres of Pacific Ocean frontage that had been an
abandoned oil tank farm terminal. Trash, broken concrete, pieces of pipe, and oil-soaked sand
covered the property. In 1981, the landowners submitted an application to clean up and develop
the property in conformance with the city’s zoning and general plan requirements. Although the
city zoning would permit 1,000 housing units on the site, the owners’ proposal was limited to 344
units. In 1982, the plan commission denied the application but suggested 264 units might be
acceptable. The owners submitted a 264-unit plan. In 1983, the plan commission denied the plan
but indicated that 224 units might pass. The landowners submitted a 224-unit plan for the site,
and, in 1984, the 224-unit plan was denied. They owners went to the city council, which referred
the matter back to the plan commission with instructions to consider 190 units. The owners came
back with a 190-unit plan that was rejected by the plan commission. Appeal was made to the city
council, which approved the 190-unit plan subject to a long list of conditions, including 17.9
acres devoted to public open space, a public beach and public access thereto, preservation of
certain plants, buffer areas so the buildings could not be seen from the highway, and many other
requirements.
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§5.25
ILLINOIS EMINENT DOMAIN PRACTICE
Del Monte Dunes met most of the conditions imposed, and the plan commission again
rejected the plan. Suit followed. The federal district court dismissed the claims as unripe on the
grounds that Del Monte Dunes had not exhausted its review process. The court of appeals
affirmed. The Supreme Court accepted the case and, with Justice Kennedy writing the decision,
affirmed the dismissal. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687,
143 L.Ed.2d 882, 119 S.Ct. 1624 (1999).
In Palazzolo v. Rhode Island, 533 U.S. 606, 150 L.Ed.2d 592, 121 S.Ct. 2448 (2001), the
landowners brought an inverse condemnation action against the State of Rhode Island, claiming
the state was taking the owners’ land without paying just compensation in violation of the
owners’ constitutional rights. The owners sought $3.5 million in damages for the claimed taking.
The owners owned 20 acres on the Atlantic Ocean coast of Rhode Island. In 1971, Rhode Island
established the Rhode Island Coastal Resources Management Council, granting the council power
to protect the coastal wetlands. With the establishment of the council, the development of coastal
areas, salt marshes, and wetlands along the Atlantic coast was severely limited. The owners
petitioned the council to install a wooden bulkhead at the sea and fill the entire marsh area. The
council rejected the request. The owners filed a new application with the council to fill 11 of the
property’s 18 acres of wetlands in order to build a beach club. The council denied this application
as well, and the owners filed the inverse condemnation suit, claiming that the council’s actions
and the state’s wetlands regulations had taken the property without compensation in violation of
the Fifth and Fourteenth Amendments of the United States Constitution. The owners claimed that
the council’s actions were a total taking of the land requiring compensation under Lucas v. South
Carolina Coastal Council, 505 U.S. 1003, 120 L.Ed.2d 798, 112 S.Ct. 2886 (1992). Rhode
Island’s trial and Supreme Courts ruled against the owners, and the United States Supreme Court
granted certiorari. Rhode Island claimed that there was not a total taking since there was a small
portion of the 20 acres that was upland property, not in the wetlands, and buildable. The owners
did not dispute that a portion of the property was buildable uplands, but they claimed for the first
time that the upland portion of the property was separate from the wetland marsh. The Supreme
Court remanded the case to the lower court to determine whether there was a total taking, citing
Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 57 L.Ed.2d 631, 98 S.Ct.
2646, 2659 (1978), which held that when “a regulation places limitations on land that fall short of
eliminating all economically beneficial use, a taking nonetheless may have occurred, depending
on a complex [set] of factors including the regulation’s . . . investment-backed expectations, and
the character of the government action.” Palazzolo, supra, 121 S.Ct. at 2457. The inquiry then
focuses on whether the regulation was a total taking of the land.
In Amoco Oil Co. v. Village of Schaumburg, 277 Ill.App.3d 926, 661 N.E.2d 380, 214
Ill.Dec. 526 (1st Dist. 1995), Amoco filed suit for declaratory judgment, injunction, and damages
against the village. The village had issued a permit for Amoco to redevelop its service station and
then revoked the permit. The village and the Illinois Department of Transportation had entered
into an agreement for the widening of the roads at the intersection location of the Amoco station.
Amoco sought to improve the property by razing the old station and replacing it with a modern
station and mini-mart. As a condition for Amoco’s redevelopment, the village required a
dedication of 1,600 square feet of Amoco’s land at the corner of the intersection. The trial court
ruled against Amoco, holding that the village had not physically invaded Amoco’s property and
that the required dedication of the 1,600 square feet did not constitute a compensable taking. The
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appellate court reversed the trial court, holding that the dedication requirement imposed by the
village on Amoco constituted a taking.
In Zeitz, supra, the owner, Zeitz, filed an action for declaratory judgment, injunction, and
inverse condemnation against Glenview claiming that the zoning ordinances of Glenview were a
wrongful taking of Zeitz’s land.
Zeitz presented a plan to Glenview to build 10 homes on 10 acres of land near an 82-acre
national historic landmark known as “The Grove.” The 10-home development plan was not acted
on, and Glenview adopted a moratorium on subdivision applications and approvals. Glenview
then rezoned the Zeitz property, reducing the number of buildable lots from 10 to 5. The trial
court dismissed the case on Glenview’s motion. The appellate court reversed and remanded the
case for trial. After full hearing from land planners, appraisers, owners, and village officials, the
court again entered judgment for Glenview. The appellate court affirmed the judgment, holding
that Zeitz failed to prove that the change in the zoning ordinance reducing the number of
buildable sites from 10 to 5 deprived Zeitz of all economically viable uses of the property.
Rezoning, moratoriums on development, and delay of plan commission hearings are not the
only ways of thwarting land use and possibly incurring a civil rights and inverse condemnation
action against the public body. Limiting the hours a business may operate is another control of the
use of real property by the public body. In Byron Dragway, Inc. v. County of Ogle, 326 Ill.App.3d
70, 759 N.E.2d 595, 259 Ill.Dec. 815 (2d Dist. 2001), Byron Dragway operated a commercial
drag strip in Ogle County. The drag strip raced cars on Friday and Saturday nights until about
midnight, and all day Sunday, Memorial Day, and Labor Day until 9:00 p.m. Byron Dragway had
spent hundreds of thousands of dollars constructing the racetrack and attracting drag strip
competitors and spectators to the track. The track competed with drag strips throughout the
Midwest and attracted national competitors and spectators.
Ogle County passed an ordinance eliminating auto racing on Fridays and reducing the closing
time on Saturday, Sunday, Memorial Day, and Labor Day from midnight and 9:00 p.m. to 6:00
p.m. Byron Dragway filed a suit for declaratory judgment, asserting that the ordinance reducing
the days and hours the drag strip could be open for racing resulted in a taking of Byron
Dragway’s property without just compensation in violation of the state and federal Constitutions.
Byron Dragway claimed with the elimination of Friday and evening hours, the drag strip would
no longer be competitive with other drag strips. Races would be canceled, thereby substantially
reducing Byron Dragway’s income and permanently damaging Byron Dragway’s national
reputation as a racetrack. The trial judge of Ogle County dismissed the complaint, and Byron
Dragway appealed.
The appellate court held that the racetrack could be regulated, but if the regulation went too
far, the regulation would be declared a taking for inverse condemnation purposes. Since the case
had been dismissed on motion, there had been no factual findings about whether the regulation
went too far. The appellate court remanded the case to the trial court for factual determinations
regarding whether the regulation of the hours of the drag strip went too far and became a taking
as an inverse condemnation of Byron Dragway’s property.
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Byron Dragway quoted liberally from several United States Supreme Court cases. The
appellate court stated that “[a] land use regulation does not result in a taking if it substantially
advances legitimate governmental interests and does not deny an owner an economically viable
use of its land.” 759 N.E.2d at 599, citing Nollan v. California Coastal Commission, 483 U.S.
825, 97 L.Ed.2d 677, 107 S.Ct. 3141, 3147 (1987). Although property may be regulated to a
certain extent, if the regulation “goes too far,” it will be recognized as a taking. Lucas, supra, 112
S.Ct. at 2893, quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 67 L.Ed. 322, 43 S.Ct.
158, 160 (1922). No set formula determines when a regulation goes too far. 112 S.Ct. at 2893.
In City of Oakbrook Terrace v. Suburban Bank & Trust Co., 364 Ill.App.3d 506, 845 N.E.2d
1000, 301 Ill.Dec. 135 (2d Dist. 2006), Oakbrook Terrace passed an ordinance eliminating
billboards. The city gave the billboard owners nearly 10 years to amortize and remove the signs
and did not seek enforcement of removal for another 10 years. After nearly 20 years, the city
started enforcement action to remove the signs, and the billboard owners countered claiming that
the enforcement was a taking without just compensation. The trial and appellate courts held that
the enforcement of the ordinance was a taking that required the award of just compensation even
though the ordinance gave the sign board owners a nearly 20-year reprieve from sign elimination.
Since there is no magic formula showing when a regulation goes too far and creates an
inverse condemnation situation, it is important that attorneys for public bodies, businesses, and
property owners affected by regulations be fully prepared to support or challenge proposed
regulation.
3. [5.26] Flooding
An attorney faced with a flooding case must consider the recent Illinois Supreme Court case
Hampton v. Metropolitan Water Reclamation District of Greater Chicago, 2016 IL 119861. This
case could be a candidate for certiorari to the United States Supreme Court. In Hampton, the
plaintiffs filed suit seeking inverse condemnation against the Metropolitan Water Reclamation
District (MWRD) for flooding their land. The Hamptons claimed MWRD caused flooding of
their property by using certain flood relief mechanisms to keep other parts of the city from
flooding. The Hamptons brought a class action on behalf of property owners in the western
suburbs of Chicago claiming MWRD closed certain dams and floodgates on the DesPlaines
River, locks to Lake Michigan, and other water level controls. It was claimed that some of the
MWRD actions were taken so O’Hare International Airport would not flood. The MWRD moved
to dismiss the complaint based on People ex rel. Pratt v. Rosenfield, 399 Ill. 247, 77 N.E.2d 697
(1948). MWRD claimed that based on Pratt, temporary flooding can never constitute a taking
under the Illinois Constitution. However, based on Arkansas Game & Fish Commission v. United
States, ___ U.S. ___, 184 L.Ed.2d 417, 133 S.Ct. 511 (2012), temporary flooding might be
compensable under the United States Constitution. The question then was whether Arkansas
Game & Fish overrules Pratt. The trial court dismissed Hampton, and the Illinois Appellate Court
affirmed the dismissal. The Illinois Supreme Court granted leave to appeal. The case examines
the difference between the United States and Illinois Constitutions as it relates to compensation
for taking and compensation for damages in the event of flooding that is temporary.
The Hampton Supreme Court decision reversed the trial and appellate courts and remanded
the case back to the trial court to grant the plaintiffs leave to amend their taking clause claim. The
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trial court was directed to consider the entirety of the plaintiffs’ claim in light of the Supreme
Court opinion, which held that the trial court must consider whether there was a taking by the
closing of certain locks and dams. The factors that the trial court must consider “include the time
and duration of the flooding, whether the invasion of the property was intentional or whether it
was a foreseeable result of an authorized government action, and the character of the land and the
owner’s reasonable investment-backed expectations regarding the land’s use.” Arkansas Game &
Fish, supra, 133 S.Ct. at 522 – 523. The Hampton court noted that the complaint alleged only one
instance of flooding and queried whether the flooding was recurring and/or the water remained on
their properties for a prolonged period of time. It also noted that the complaint did not allege
whether damages caused by the flooding could be repaired.
All of the suggested allegations that the Supreme Court set out for a possible amended
complaint by the Hamptons are not set out in this chapter; however, these allegations should be
considered by a lawyer seeking a flooding taking or damages when there is no actual taking of
real estate. These factors should be considered in the defense of flooding claims. Because of the
great impact that Hampton may have on public bodies that control locks and dams on Illinois
rivers, legislation is inevitable. Attorneys representing or defending flooding issues must
carefully follow any legislative actions.
Hampton appears to be contrary to Sorrells v. City of Macomb, 2015 IL App (3d) 140763, 44
N.E.3d 453, 398 Ill.Dec. 424, which held that generally flooding does not lend itself to inverse
condemnation by the property owner against a municipality or public body. In Sorrells, the
property owners claimed the abutting property owner was developing its land and the
development activities were causing an unnatural flow of water onto their land. Sorrells added the
City of Macomb as an additional defendant claiming the city permitted the development of the
abutting residential complex that caused the flooding. Sorrells sought inverse condemnation
against the city claiming the city failed to follow applicable drainage and engineering standards in
approving the abutting development. The trial court dismissed Sorrells’ inverse condemnation
complaint, and the appellate court affirmed the dismissal citing Arkansas Game & Fish as one
basis for its decision.
Public bodies open and close flood control structures regularly when there is a heavy rain.
Opening and closing flood control gates will relieve flood waters in one part of an area but cause
flooding in another part of the community. If the opening and closing of flood control gates is a
basis for inverse condemnation, perhaps the law of Illinois will have permanently changed and
inverse condemnation for flooding will be permitted. Because of the U.S. Supreme Court’s
decision in Hampton, Arkansas Game & Fish could be modified or overturned. If Arkansas Game
& Fish is changed, there might be substantial inverse condemnation cases from the flooding of
crop land from dams and locks on the Mississippi River and other streams and rivers. The
Wilmette lock is frequently opened during heavy rain storms permitting water to flow into Lake
Michigan. Locks and dams on other Illinois rivers are open and closed causing regular flooding
up or down stream from the lock or dam. Attorneys are advised to keep abreast of this possible
changing landscape of inverse condemnation in this area.
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4. [5.27] Public Body Is the Only Possible Buyer
Sometimes the landowner seeks to have the public body take their land provided the owner is
compensated for the taking. It is usually the price demanded by the owner that shies away the
public body from taking. That is what was played out in Stahelin v. Forest Preserve District of
DuPage County, 376 Ill.App.3d 765, 877 N.E.2d 1121, 315 Ill.Dec. 792 (2d Dist. 2007).
Stahelin’s 18 acres of land was bordered on three sides by the Morton Arboretum. The Morton
Arboretum is a large semipublic forested area in mid-DuPage County. It is devoted to the study
and preservation of forests and trees. It was founded as a charitable foundation by the Morton
family known for Morton’s Salt. Morton wished to add the Stahelin land to their arboretum and
entered into an agreement with the forest preserve district that the district condemn the land and
make it available as open lands and forest for the arboretum. The forest preserve district filed a
condemnation against Stahelin to acquire the land and then voluntarily dismissed the
condemnation action. The forest preserve district and Morton were unable to reach an agreement
on compensation for the 18 acres. After the condemnation was dismissed, Stahelin filed an action
for inverse condemnation charging the forest preserve district and Morton with conspiracy,
violation of due process, and that certain ordinances were invalid and for an elimination of a
cloud on Stahelin’s property due to the lis pendens filed in the previous condemnation action. The
forest preserve district filed a motion to dismiss Stahelin’s inverse condemnation request. The
appellate court affirmed the dismissal and also held that there was no cloud on the Stahelin real
property when the condemnation action, which was the basis for the lis pendens, was voluntarily
dismissed. Stahelin was left with his 18 acres next to the arboretum with no potential buyer,
except the forest preserve district and Morton Arboretum.
5.
[5.28] Streets and Parkways
In Village of Algonquin v. Lowe, 2011 IL App (2d) 100603, 954 N.E.2d 228, 352 Ill.Dec.
368, many streets of the village had been designated on a plat but the streets were never built (and
assumed never formally dedicated as required by statute). The village took steps to acquire the fee
interest in these streets and parkways by filing a suit to condemn the streets and parkways. In the
suit, “unknown owners” were added as defendants as is the custom in condemnation actions.
Summons was issued and publication was made for unknown owners in the local paper. (Why
publications are not made in this modern world on Facebook or Twitter is a puzzle to many
Illinois lawyers). Terrence and Bonnie Nagel filed a §5/2-1401 petition (735 ILCS 5/2-1401) to
set aside the judgment of condemnation as it affected their real estate. Nagels claimed the
condemnation took part of their driveway. Nagels provided supporting affidavits that they lived at
1109 Pioneer Road, they had not been personally served, they used the driveway (land taken) as
their primary access from the street to their garage, and they purchased their property in 1975 and
had lived there since. The village had sent the Nagels several letters concerning the use of the
driveway. The Nagels claimed their property by reason of adverse possession since they had been
in open and notorious adverse possession of the land in question for more than 20 years. The trial
court granted the Nagels’ §5/2-1401 petition and vacated the judgment. The village appealed, and
the appellate court affirmed the dismissal. The trial court vacated the condemnation judgment as
it affected the Nagels and their real property.
The lesson learned in Algonquin is that all possible defendants, tenants, heirs, or any known
party that may have an interest in the real property being condemned should be named as a
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defendant/interested party in the complaint and served personally with summons. It may be a
little expensive and time consuming, but lack of jurisdiction over a party that shows up after the
property has been acquired by the public body and the improvement is on the property may be a
much more expensive and time consuming problem. As suggested above, the Internet is the
modern way to find “unknown owners.” Judges may well inquire of the public body’s
condemnation lawyer if an Internet search has been made for unknown owners and possible heirs.
6.
[5.29] Airports
The O’Hare International Airport expansion of runways has made a lot of employment for
condemnation lawyers, appraisers, engineers, trial judges, and even appellate court justices.
O’Hare land was once land owned and operated primarily by vegetable farmers north of, and
not contiguous to, the City of Chicago. The late Mayor Richard J. Daley determined that Midway
Airport was too small for large planes. Midway was penned in, up to its borders, with commercial
and residential homes. Transportation at Midway was insufficient to handle a modern airport.
Mayor Daley annexed State Route 72 (Higgins Road) as a corridor to the proposed O’Hare Field
thereby making O’Hare contiguous to, and part of, the City of Chicago. O’Hare grew by
purchase, condemnation, and other acquisitions until it spread out of Cook County into the
northeastern part of DuPage County. In the late 20th century, it was determined that O”Hare
needed additional runways to accommodate large passenger and freight flying jet planes. There
were many municipalities, commercial, residential, and manufacturing entities who were strongly
in favor of, and bitterly opposed to, the expansion. Nevertheless the expansion slowly took place.
There was still some lingering litigation to be addressed in the second decade of the 21st century.
The more recent O’Hare case and other airport cases are discussed below.
In Philip v. Daley, 339 Ill.App.3d 274, 790 N.E.2d 961, 274 Ill.Dec. 188 (2d Dist. 2003),
Illinois Senate President James Philip sued Mayor Richard M. Daley challenging Chicago’s
attempt to acquire property by condemnation to expand O’Hare International Airport. Chicago
had not obtained a “certificate of approval” from the Illinois Department of Transportation
(IDOT) as required by the Illinois Aeronautics Act (620 ILCS 5/47; 92 Ill.Admin. Code §14.640).
Chicago claimed (as did the Village of Cary in Village of Cary v. Trout Valley Ass’n, 282
Ill.App.3d 165, 667 N.E.2d 1082, 217 Ill.Dec. 689 (2d Dist. 1996) (Cary I) and 297 Ill.App.3d
63, 696 N.E.2d 1154, 231 Ill. Dec. 583 (2d Dist. 1998) (Cary II) discussed in §§5.11, 5.15, and
5.16 above) that it did not need approval since the expansion was being done under the auspices
of the Federal Aviation Administration. Chicago claimed federal preemption. The appellate court
ruled against Chicago. This issue over an insignificant permit delayed the O’Hare International
Airport expansion, a delay that could have been avoided by following the statute and obtaining
the permit before commencing any land acquisition process.
A condemnation lawyer must be prepared to meet and solve unusual issues that may arise. In
City of Chicago v. St. John’s United Church of Christ, 404 Ill.App.3d 505, 935 N.E.2d 1158, 343
Ill.Dec. 930 (2d Dist. 2010), cemetery land in Chicago western suburbs was taken for the
Congress Street Expressway. Instead of going straight, the Kennedy Expressway wraps around an
established church just north of Chicago’s loop. Interstate 355 was diverted west of the Village of
Downers Grove and was also moved slightly westward north of Route 20. St. John’s United
Church of Christ’s cemetery was in the path of the O’Hare International Airport’s expansion. The
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City of Chicago brought condemnation proceedings against St John’s Church for the acquisition
of its church cemetery. St. John’s Church, its members, the owner of the cemetery lots, and
descendants of those buried in the cemetery intervened in the condemnation action and filed a
traverse seeking to dismiss the condemnation. They claimed numerous objections to the taking of
the cemetery, including the taking was a violation of their religious rights contained in the federal
and Illinois Constitution and the right to exercise their religion, improper notice had been
published, and the taking was unnecessary. These same and similar claims of St. Johns, and some
of the intervenors, had been made in the United States District Court challenging the city’s right
to condemn for the airport expansion (St. John’s Church of Christ v. City of Chicago, 502 Fed.3d
616 (7th Cir. 2007). The trial and appellate court held that the city had the right to condemn, but
res judicata barred the intervenors from raising the same objections in the case at bar that had
been made in the federal court proceedings. The appellate court affirmed the DuPage County trial
court’s denial of the traverse.
In County of St. Clair v. Caseyville Rifle & Pistol Club, Inc., No. 5-09-0100, 2011 WL
10483334 (5th Dist. 2011) (unpublished), discussed in §5.14 above, the proposed gun club and
shooting range was in the landing path of the airport. The condemnation had federal as well as
local opposition. The condemnation failed for lack of enabling county resolution. Had St. Clair
County had a proper resolution, the condemnation of the rifle and gun club would have been in
order.
C. [5.30] Mortgage Foreclosures
A mortgage foreclosure is not usually an issue in the appeal of a condemnation case. As set
out above, every party having a “stake” in the property being condemned must be made a party
defendant to the suit. Often the holder of a first and second mortgage have a mortgagee’s interest
in the condemnation and its award. In Baker v. Forest Preserve of Cook County, 2015 IL App
(1st) 141157, 33 N.E.3d 745, 393 Ill.Dec. 1, Richard and Meryl Cannon (and their entities)
owned a horse farm known as Horizon Farms on Algonquin Road in Barrington, Illinois. There
was a $14 million outstanding loan on the farm with BMO Harris Bank. The bank had foreclosed
on the mortgage when payments were not made current. The forest preserve district bought
Horizon Farms at the foreclosure sale and acquired title to the property by sheriff’s deed. The sale
was confirmed by the mortgage foreclosure court. The forest preserve district paid the bank $14
million for the sheriff’s deed. The crux of a taxpayers’ suit, in which the Cannons participated,
claimed that the district did not have the legal power to acquire land from an assignment of
mortgage and foreclosure sale. The trial court dismissed the Cannons’ complaint, and the
appellate court affirmed the dismissal. The appellate court opined that the forest preserve district
had a right to acquire property “by gift, grant, legacy, purchase or condemnation.” (70 ILCS
810/8. (Postscript to Baker: In June 2016, the Chicago Tribune stated that the issue of the forest
preserve district’s acquisition of the Horizon Farm is still in court, and the Cannons have not
given up yet. Robert McCoppin, New forest preserve provides natural beauty, but land dispute
gets ugly, Chicago Tribune, June 24, 2016.)
D.
[5.31] Condemnation and Interplay Among Public Bodies
Most public bodies must cooperate with their counterpart since the two public bodies must
“live together” forever after. Occasionally, the two public parties are unable to agree. In Village
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of Woodridge v. Board of Education of Community High School District 99, 403 Ill.App.3d 559,
933 N.E.2d 392, 342 Ill.Dec. 806 (2d Dist. 2010), the City of Woodridge sought to acquire a
parcel of vacant land that was next to the village hall. This adjoining land was owned by the high
school district, which refused to sell, and the village commenced condemnation to acquire the
parcel. The high school district claimed the land was being held for possible future expansion.
The trial court denied the traverse and permitted the condemnation to proceed. The high school
district appealed, and the appellate court affirmed the dismissal of the high school district’s
traverse.
In Trotter v. Spezio, 349 Ill.App.3d 959, 812 N.E.2d 577, 285 Ill.Dec. 757 (3d Dist. 2004),
the township highway commissioner filed a condemnation citing as authority 605 ILCS 5/6-303,
et seq. The owner filed a traverse claiming that using the statutory designation of “et seq.” was an
insufficient citing of legal authority to support the condemnation action. The court held that the
cited authority of “et seq.” was sufficient.
The interplay of local, state, and federal bodies must be considered in a condemnation
proceeding. This conflict was raised in MCI Worldcom Communications, Inc. v. Metra Commuter
Rail Division of Regional Transportation Authority, 337 Ill.App.3d 576, 786 N.E.2d 621, 272
Ill.Dec. 82 (2d Dist. 2003). MCI condemned Metra to install an underground fiber-optic cable in
the Metra rail line. Metra filed a traverse claiming that Metra was a public body and statutory
approval was required for one public body to condemn another. The trial court ruled in favor of
Metra, and MCI appealed, claiming that the denial of its right to install the cable, which was part
of a nationwide communications system, was a violation of the Federal Telecommunications Act
of 1996, 47 U.S.C. §253. The appellate court affirmed the ruling in favor of Metra, holding that
MCI had a right to condemn private property but the language of the Federal
Telecommunications Act did not extend to public property. This MCI decision could be an
important decision for many public bodies when communications, pipelines, high lines, and other
interstate carriers seek easement rights through public lands.
E. [5.32] Lessees’ Claims to Part of the Award
In a condemnation action, the public body seeks to take the whole fee interest in the real
estate. The interest taken includes rights of the owner, tenants, lien and mortgage holders, and any
unknown owners or descendants. Once the public body deposits the award with the county
treasurer and takes possession of the property, the public body has no further interest in the
distribution of the funds. The parties of interest will petition the court for an order on the county
treasurer for distribution. Notice of the petition to withdraw must also be given to all parties of
record and the state’s attorney as the attorney for the county treasurer. A title report will be
required by the state’s attorney. Usually the condemnor has a recent title report and will furnish
the condemnee with a copy of the report for use in the distribution. The lessees/tenants have been
parties to the proceedings. If the lease has expired, or there is a condemnation clause in the lease,
the tenant should remove his or her trade fixtures and move on. If the lease does not have a
condemnation clause and there is substantial time to run on the lease, the tenant might be
successful in receiving a portion of the award. However the lease often expires while the
litigation is pending thus leaving the lessee with no piece of the condemnation proceeds. The
owner should consider that while litigation with a tenant over the distribution of moneys on
deposit with the county treasurer is pending, no moneys will be disbursed by the treasurer until
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the trial court rules and all time for appeals has passed. The best for both parties is a
compromised settlement so the funds may be disbursed. Perhaps a petition and court order might
be entertained by the trial judge to permit a partial distribution to the owner pending a final
resolution of the matter.
Assume there is a ten-year lease on a restaurant and there are still five years to go on the lease
when the award moneys are deposited with the county treasurer and possession has been
surrendered. What can the tenant expect from the moneys on deposit? If the lease was for $1,000
per month and comparable restaurant space is now leased for $2,000 per month, the tenant’s
claim would be at least $1,000 per month for the balance of the five years of the original lease
term, or $60,000, discounted to present value. If the tenant has an option for an additional ten
years, the law is a little hazy whether the tenant may have a recovery for a future option period.
The above caselaw indicates that the tenant is entitled to part of the award for a future option or
extension period. The tenant may have never exercised the option. The other side of that
argument is that the fair market value of the lease space is double the set option rent. That
argument does not seem to carry much weight under present caselaw. If the lease is to pursue a
claim for part of the award, the proof must be by competent evidence that is difficult to obtain.
One of the difficulties in proving these leasehold damages is securing comparable lease data of a
like business. The real estate appraiser (expert witness) may be able to make a case for the lessee,
but it may all be in vain if the lessee has no stake in the award and options do not count.
Relocation assistance under the Eminent Domain Act may help in taking the sting out of
moving a business. Many businesses have unique problems that make relocation nearly
impossible. A cleaning business is a good example. Because of serious environmental problems
in the past due to cleaning businesses disposing cleaning fluids on premises, cleaning businesses
are nearly impossible to relocate. Many other businesses that have been in place for many years
may face similar difficulties in relocating and go out of business.
In Public Building Commission v. Yellen, 2013 IL App (1st) 112638, 986 N.E.2d 706, 369
Ill.Dec. 393, there was a condemnation award of $1,950,000. The tenant sought an apportionment
of the award. The lease had expired but the tenant had issues of whether the option to extend the
lease was still in place. The trial court (Judge White) awarded the tenant $380,000 for the tenant’s
interest in the award. The appellate court reversed any payment to the tenant, the tenant’s
appraiser, or any other offsets against the owner from the final award. This case appears to hold
that, even if there were possible options to extend, once a lease has expired the tenant is entitled
to no part of the award.
In Village of Palatine v. Palatine Associates, LLC, 2012 IL App (1st) 102707, 966 N.E.2d
1174, 359 Ill.Dec. 486, the village acquired a shopping center for a police station. The jury award
was $6 million. The tenants sought part of the award. The shopping center owner filed a motion
declaring that the tenant had no interest in the award. The tenants claimed they had options to
extend the lease for two additional option periods of five years each. The trial court (Judge
Alexander P. White) denied any apportionment of the award to the tenants. The tenants appealed
and the denial of recovery for the option periods was affirmed.
An earlier decision of this same Palatine case, Village of Palatine v. Palatine Associates,
LLC, 406 Ill.App.3d 973, 942 N.E.2d 10, 347 Ill.Dec. 177 (1st Dist. 2010), concerned the trade
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fixtures in the Palatine shopping center. One of the tenants, One Hour Cleaners, filed a petition
seeking compensation for its trade fixtures. The owners filed a motion to dismiss One Hour
Cleaners’ claim. One Hour Cleaners claimed it had improved the property with “substantial
cleaning fixtures” that contributed to the value of the property. 942 N.E.2d at 14. One Hour
Cleaners filed a petition for “just compensation,” claiming it had a compensable interest in the
award. Id. The trial judge, Alexander P. White, ruled that at the time of the award, the lease had
terminated and One Hour Cleaners had no interest in the final award and was entitled to no just
compensation. An appeal followed.
The appellate court in this earlier decision said a trade fixture is personal property and is
affixed to the real estate to carry out the tenant’s business. There is a three-part test to determine
whether a trade fixture is part of the real estate: (1) the means by which the item has been affixed
to the real estate; (2) whether the item is adapted to and necessary for the intended use of the
property; and (3) the intent of the parties. 942 N.E.2d at 16. A trade fixture is the tenant’s
property and may be removed by the tenant as long as the removal does not damage the realty.
The court said that “a trade fixture remains the property of the tenant and compensation for a
trade fixture taken by eminent domain is owed to the tenant.” Id.
One Hour Cleaners’ problem went to basic landlord-tenant law. The lease provided that in the
event of condemnation, the compensation for the taking belonged exclusively to the landlord. The
lease had expired in 2004, but One Hour Cleaners stayed on as a holdover tenant, which put it on
a month-to-month tenancy. The decision points out that parties may contract governing their
rights to compensation in the event of condemnation. Since the shopping center was being torn
down to make way for a police station, One Hour Cleaners was entitled to remove any removable
trade fixtures. Usually, if the property is to be razed, the condemnor will permit the tenant to
remove fixtures attached to the real estate including heating, plumbing, and light fixtures.
Lessees’ claims in condemnation cases are most difficult in many respects. The EDA has
attempted to take some of the “sting” out of lessees’ losses by providing for relocation assistance.
Time will tell how well that program will work out. The owner of the family hardware store or
cleaners that has been on a year-to-year lease for 50 years has no stake in the condemnation
award. The goodwill that was established by that family business is not transportable to the mall
where Home Depot or Walgreens is located. Most commercial leases provide that in the event of
condemnation, the entire condemnation award belongs to the owner. The tenant owes rent to the
end of the current year or prorated to the date of possession by the condemning body.
Lamar Advantage G.P. Co. v. Addison Park District, 354 Ill.App.3d 130, 820 N.E.2d 626,
289 Ill.Dec. 850 (2d Dist. 2004), also confirmed that when a lease expires there is no
compensation available for the lessee. Lamar had a 15-year billboard lease on land that was
acquired by the park district and annexed to the Village of Addison. The billboard lease expired,
and the park district refused to renew or extend the lease due to Addison’s no billboard stand.
Lamar filed suit claiming inverse condemnation. The trial court dismissed the complaint, and
Lamar appealed. The appellate court affirmed, finding that there was no compensable
condemnation action since the billboard leases had expired.
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If there is even a remote possibility of any condemnation action, attorneys for owners should
include a standard condemnation clause that provides that in the event of condemnation, no part
of any condemnation award will be paid to the tenant.
F. [5.33] Home Rule
Home rule in condemnation is virtually dead in Illinois. In 1970, the Illinois Constitution
provided for home rule power to certain local governmental units. ILL.CONST. art 7, §6. Using
home rule as a basis, the City of Carbondale enacted its own quick-take ordinance, but the Illinois
Supreme Court held the quick-take statute invalid. City of Carbondale v. Yehling, 96 Ill.2d 495,
451 N.E.2d 837, 71 Ill.Dec. 683 (1983). The same rationale that a municipality, under home rule,
may not enact ordinances in derogation of state statutes has been followed in disconnection
proceedings. In LaSalle National Trust, N.A. v. Village of Mettawa, 249 Ill.App.3d 550, 616
N.E.2d 1297, 186 Ill.Dec. 665 (2d Dist.), appeal denied, 153 Ill.2d 560 (1993), the Village of
Mettawa enacted stringent requirements that practically prohibited any property owner from
disconnecting from the village. The Mettawa ordinance was contrary to the state statute that sets
out simple requirements for disconnection, including that property sought to be disconnected is in
excess of 20 acres and at the border of the municipality. Several other villages, such as Barrington
Hills and Long Grove, joined Mettawa in the appeal. These municipalities wanted to enact their
own requirements for disconnections in derogation of state statutes and sought appellate court
approval. The appellate court affirmed the striking down of the Mettawa ordinance. The Illinois
Supreme Court denied leave to appeal.
Schillerstrom Homes, Inc. v. City of Naperville, 317 Ill.App.3d 1168, 783 N.E.2d 243, 270
Ill.Dec. 668 (2d Dist. 2000) (Rule 23), reaffirms the rule that even though a municipality has
home rule, the state statute must be followed when there is a conflict with the local ordinance. In
Schillerstrom, the developer submitted plans to raze a house and build two new homes. The city
did not act on the plans within 60 days as required by state statute (65 ILCS 5/11-12-8).
Naperville had passed a similar ordinance, except the state statute provided for damages to the
builder if the plans were not acted on within the 60 days, while the ordinance did not. Naperville
claimed its ordinance trumped the state statute and the ordinance complemented the state statute.
If there is a conflict regarding whether a municipal ordinance “complements” or “supersedes” the
state statute, the state statute interpretation takes precedence.
There is a caveat to the statement that home rule in condemnation is dead. A spark of life may
still be in home rule for the City of Chicago. In City of Chicago v. Boulevard Bank National
Ass’n, 293 Ill.App.3d 767, 688 N.E.2d 844, 846, 228 Ill.Dec. 146 (1st Dist. 1997) (discussed in
§5.11 above), when the city realized it needed the Oliver Building, it passed an ordinance
authorizing condemnation “pursuant to the City’s home rule power in a quick take proceeding.”
[Emphasis added.] The appellate court affirmed the right of the city to condemn the Oliver
Building. There is no further reference in the opinion concerning the city’s home-rule power.
Neither the Supreme Court’s earlier decision in Yehling, supra, nor the Second District’s decision
in Mettawa, supra, is mentioned in the First District’s opinion. Perhaps the City of Chicago has
home-rule quick-take powers that are not granted other municipalities.
Although the death knell was rung in the opening sentence of this section, State Bank of
Waterloo v. City of Waterloo, Illinois, 339 Ill.App.3d 767, 792 N.E.2d 329, 275 Ill.Dec. 98 (5th
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Dist. 2003), held that the city could deny a driveway cut even though the Illinois Department of
Transportation had granted the owner access points. IDOT had brought condemnation for a
bypass around Waterloo. As part of a settlement with the owner, IDOT granted two access points
on the bypass. The City of Waterloo denied the access permits, claiming that the access failed to
meet safety standards and did not comply with the city’s comprehensive plan and subdivision
ordinances that were passed after IDOT had granted the owner the permits. The owner claimed
that the state permits preempted the city’s denials. The trial court held that IDOT’s granting of the
permit did not preempt the local control over the access points. The owner appealed, and the
appellate court affirmed the denial of the two access points. At the conclusion of the case, the
appellate court indicated that the battle may not be over. The case was remanded to the trial court
to determine whether the refusal to grant access by the city was a taking or a mere regulatory
restriction. If the refusal was a taking, the owner may be entitled to damages for loss of access. If
the denial of access is a regulatory taking, similar to erecting an unmountable median in the front
of commercial property, then there are no damages. The issue of municipal regulatory taking is
discussed further below.
In City of Oakbrook Terrace v. Suburban Bank & Trust Co., 364 Ill.App.3d 506, 845 N.E.2d
1000, 301 Ill.Dec. 135 (2d Dist. 2006), Oakbrook Terrace brought a zoning enforcement action
against a billboard company to enforce its 1980 zoning ordinance prohibiting off-premises,
freestanding signs and requiring them to be removed by 1988. The enforcement action was not
commenced until 1999. The billboard owner claimed that the enforcement of the zoning
ordinance was an unlawful taking without just compensation. The city was a home-rule
municipality, and under its authority, it had a right to regulate signs as it determined to be in the
best interests of the city and its residents. The city claimed it derived its home-rule powers under
ILL.CONST. Art. VII, §6, which provides for municipal home-rule authority. The trial court
granted summary judgment in favor of the billboard company, holding that the city’s action was a
compensable taking even though the ordinance was in effect for nearly 20 years, giving the
defendants plenty of time to remove their signs. The court held, and the appellate court affirmed,
that “[w]here an ordinance contravenes a state statute . . . the courts have not hesitated to find it
an invalid exercise of home rule authority.” 845 N.E.2d at 1010. The appellate court concluded
that the city’s attempt to replace “just compensation” for a taking of the signs with an
amortization program “infringes on the state judiciary and is an impermissible exercise of its
home rule authority.” 845 N.E.2d at 1011. There was a dissent, but the case did not reach the
Illinois Supreme Court.
In condemnation, conflict between local and state regulations may be avoided by following
state statute and caselaw. The condemnor should avoid attempts at adopting its own rules and
regulations contrary to state statutes.
Boulevard Bank National Ass’n, supra, was based on a home-rule ordinance power. The issue
of home rule was not addressed in the opinion. Other Illinois cases have clearly set out that there
is no condemnation power except under state statues. In City of Berwyn v. Ryczek, No.
2008-L-50663 (Cook Cty.Cir. 2008), the plaintiff pled home rule as one of Berwyn’s bases for a
tax increment financing condemnation. Berwyn claimed it was bringing the action, in part, based
on its home-rule powers. The claimed home-rule basis was challenged. The trial court denied the
challenge, but the parties settled the cause, leaving no appellate ruling on this issue.
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§5.34
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Home rule is touched on in the Lamar Whiteco Outdoor Corp. v. City of West Chicago, 355
Ill.App.3d 352, 823 N.E.2d 610, 291 Ill.Dec. 318 (2d Dist. 2005), billboard case. The City of
West Chicago attempted to control billboards through its home-rule power. The lower court
rejected the municipality’s home-rule taking. See §5.32 above for a discussion on Lamar.
Attorneys representing municipalities should be cautioned on pleading home rule as one of
their bases for a condemnation. Pleading home rule as a basis for taking private property only
opens the door for the granting of a traverse and a trip to the appellate court. The EDA is a
lengthy statute that is adequate to support a legally sufficient condemnation proceeding without
resorting to home rule and possible appeal.
G.
[5.34] Abandonment of a Condemnation Action
The condemnor has the right to abandon a condemnation action any time up until the moment
the condemnor takes possession of the subject property. In City of Chicago v. Harris Trust &
Savings Bank, 346 Ill.App.3d 609, 804 N.E.2d 724, 281 Ill.Dec. 759 (1st Dist. 2004), Chicago
condemned the northeast corner of State and Randolph Streets as part of a tax increment
financing district. The building across from Marshall Fields had several retail stores, including
Walgreens. A large leased space for an outdoor billboard was on the building’s roof. Chicago
petitioned for quick-take in February 2001 and deposited $92,400 with the county treasurer as
preliminary compensation for the billboard lessee’s rights, which expired November 30, 2001.
The billboard lessee petitioned to withdraw the $92,400 deposit. Chicago decided it did not need
the property before the November lease expired. Chicago sought to abandon the take, withdraw
the deposit, let the lease run out, and pay the billboard lessee’s attorneys’ fees and costs. The trial
court held that a condemnor may abandon the condemned property at any time prior to taking
possession of the property. The appellate court affirmed.
H. [5.35] Notice
Notice of the suit by summons is not the only important notice in a condemnation case.
Before the municipality, public development authority, or even the O’Hare Modernization
Program, there are public hearings, and notice of those hearings is published in newspapers of
general circulation. In some cases, notice of the project must be personally served on the
landowner affected. A good example of the issue of notice and problems that might arise is a tax
increment financing district. Some TIF districts were formed over twenty years ago. Prior to the
formation of a TIF district, the municipality must have had public hearings at which citizens
could voice objections. Those hearings must have had public notice published in a local
newspaper. Twenty years later, the local paper may have gone out of business, and certification of
the publication is no longer available. Twenty years after the claimed public meeting, the
condemnation is commenced, and the landowner challenges by traverse the failure of the
municipality to produce the certificate of publication.
In Passalino v. City of Zion, 237 Ill.2d 118, 928 N.E.2d 814, 340 Ill.Dec. 567 (2009), the
Illinois Supreme Court addressed the issue of notice of public hearings. In 1971, Zion zoned a
parcel of real estate that permitted 8 single-family and 142 multiple-unit dwellings for a total of
150 units on the parcel. In 1996, Zion determined to eliminate the multiunit dwelling zoning and
permit only single-family units on the property. In 2001, the owner sought to develop the
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§5.36
property and learned for the first time of the zoning change. Zion claimed it published the notice
for hearing of the proposed zoning change in the local newspaper pursuant to the Illinois
Municipal Code, 65 ILCS 5/11-13-2. The owner (Passalino) filed suit claiming the notification by
publication was not sufficient notice to satisfy the due-process requirements of the state and
federal Constitutions. The owner filed a motion for summary judgment that was granted by the
Lake County Circuit Court. The court held that the provision of the Municipal Code was
unconstitutional and void as to the owner’s parcel. Since there was a challenge of the
constitutionality of a state statute, appeal was directly to the Illinois Supreme Court. The trial
court was affirmed. In the Passalino opinion, Chief Justice Fitzgerald quoted and relied on
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652 (1950),
stating:
An elementary and fundamental requirement of due process in any proceeding
which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections. 928 N.E.2d at 819, quoting Mullane,
supra, 70 S.Ct. at 657.
Justice Fitzgerald said:
[T]he Mullane Court held that notice by publication is not sufficient with respect to
an individual whose name and address are known and easily ascertainable. . . .
Hence, notice by publication was inadequate “not because in fact it fails to reach
everyone, but because . . . it is not reasonably calculated to reach those who could
easily be informed by other means at hand.” [Citation omitted.] 928 N.E.2d at 820,
quoting, Mullane, supra, 70 S.Ct. at 660.
Publication in local newspapers of proposed public projects, foreclosures, and probate notices
for heirs and claimants was adequate 150 years ago. Such publication of legal notices in the
Chicago Law Bulletin or in a downstate newspaper in the help wanted and used car ads does not
comport with present day federal or state constitutional due process. This is particularly true
when the Internet will reach the missing heir who left for Alaska 30 years ago. Attorneys for
condemnors should make a concerted effort to notify any potential landowner whose property
might be subject to a condemnation taking early in the proceedings. Attorneys for landowners
should carefully investigate all hearing and legislative requirements, including the claimed
notices, and challenge the proceeding with a traverse if the constitutionally mandated due-process
notice has not been met.
I. [5.36] Good-Faith Attempt To Settle Before Suit
The Eminent Domain Act (and prior legislation) requires the condemning body to enter into
good-faith negotiations with the landowner before suit is filed. In the past, most condemning
bodies treated the acquisition of private property for a public use as an arm’s-length transaction.
The negotiations for purchase were similar to bargaining for a used car except the public body
held the “club” of condemnation in the other arm if the landowner did not sell. In those past
good-faith negotiations, the condemning body did not furnish the owner a copy of the appraisal.
Often the offer to purchase was less than the condemning body’s own appraisal. All public bodies
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§5.37
ILLINOIS EMINENT DOMAIN PRACTICE
now follow the legally accepted procedure of furnishing the public body’s appraisal and entering
into good-faith attempts to settle the issue of just compensation before suit. It is surprising to read
City of Chicago v. Zappani, 376 Ill.App.3d 927, 877 N.E.2d 17, 315 Ill.Dec. 530 (1st Dist. 2007),
which confirms the necessity of furnishing the landowner a copy of the appraisal before suit is
filed. In Zappani, the city sent several letters along with a settlement offer to the owner. No
appraisal was furnished. The owner failed to respond. Suit was filed, and the owner filed a
traverse claiming no appraisal was furnished, and no good-faith attempt to negotiate a settlement
was made before suit was filed. The trial court granted the traverse, and the appellate court
affirmed, holding that furnishing the appraisal report to the owner prior to filing suit to condemn
is mandatory to meet the good-faith negotiation statutory requirement. The law is clear: No
appraisal report, no condemnation.
Bona fide offers to settle are covered in other chapters in this handbook, but a word here is
important as it relates to condemning bodies. Negotiations may become clouded as in Illinois
State Toll Highway Authority v. DiBenedetto, 275 Ill.App.3d 400, 655 N.E.2d 1085, 211 Ill.Dec.
702 (1st Dist. 1995). Until DiBenedetto, a written offer to the owner based on a written appraisal
of the property at its highest and best use was sufficient. Lake County Forest Preserve District v.
First National Bank of Waukegan, 200 Ill.App.3d 354, 558 N.E.2d 721, 146 Ill.Dec. 758 (2d Dist.
1990). In DiBenedetto, the developer for Sears had a $2.5 million offer on the table at the same
time the tollway had offered the owners only $1 million. The court found that the tollway was not
bound by Sears’ offer and the trial court erred in finding that the tollway had not made a goodfaith offer of settlement. To avoid any possible adverse traverse ruling, the attorney for the
condemning body should send a final written offer of settlement to the owners prior to filing the
suit to condemn.
1. [5.37] What Is the Date of a Taking?
The standard recognized rule of condemnation for the date of taking and valuation of
property being condemned is the date of the filing of the suit to condemn. However, the Eminent
Domain Act has a rule that if the condemnation case does not go to trial within two years, the
court, in its discretion, may set a new valuation date that may be a date between the original filing
and the trial date. The appraisals, all reasonable probabilities of rezoning, annexation, utilities
available, traffic counts, comprehensive plans in place, and other matters that might affect value
are as of the date of the taking, which is the date of filing the suit or such later date if the trial is
not commenced within two years. In an inverse condemnation proceeding, the date of the taking
may be a critical valuation issue. 735 ILCS 30/10-5-60.
Department of Transportation v. Chicago Title & Trust Co., 303 Ill.App.3d 484, 707 N.E.2d
637, 236 Ill.Dec. 510 (1st Dist. 1999), addressed the date of taking and valuation as of the date of
the filing the suit, finding that how the remainder is used or assembled after the take has no effect
on the value of the original parcel of the property. The Illinois Department of Transportation
condemned three lots at Routes 59 and 20 near Bartlett for widening and improvement of the
grade separation. The three lots were on the north side of Route 20. The middle lot was the
Starview Drive-In Theater. The other two lots were on the east and west sides of the Starview.
The east parcel was ten acres and was condemned first. Part of the parcel was taken by quick-take
in 1991, leaving a seven-acre remainder. The parcel west of Starview was an auto salvage yard.
The three contiguous properties were in unincorporated Cook County without sewer or water.
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Prior to the condemnation of the east parcel, the then-owner of the east parcel had entered into
articles of agreement to sell the east parcel to a Boulevard Bank land trust. The closing on the sale
to Boulevard Bank was completed in January 1991.
The Starview middle parcel condemnation was filed in August 1989. The Starview parcel
was owned by Chicago Title under a land trust and was 26 acres. IDOT took about half an acre of
frontage from Starview, including all of Starview’s access to Route 20. In March 1988, Chicago
Title (Starview) had entered into an agreement with Boulevard Bank for the sale of the Starview
to Boulevard Bank. The closing took place in January 1991, at the same time the east parcel
owner closed and conveyed the east parcel to Boulevard Bank.
The west parcel (an auto salvage lot) was condemned by IDOT on August 10, 1989. The west
parcel was nine acres, and title to the property was in a land trust with LaSalle National Bank. In
May 1989, the owner of the west parcel had entered into a contract to sell the west parcel to
Boulevard Bank, as trustee. The same attorney appeared for Boulevard Bank for the west parcel
as well as the Starview parcel. In 1992, IDOT filed a motion to consolidate the condemnation
proceedings for the Starview and west parcels. The court denied the motion to consolidate the two
parcels for trial. In 1993, IDOT filed a motion for judicial declaration that the remainder of the
Starview property (which was now otherwise landlocked) was part of the remainder of the east
and west remainders. IDOT had found out that the owners intended to develop the three lots into
a unified commercial development and that, with the east and west parcel remainders, the
Starview parcel would not be landlocked but would have road access through the east and west
parcels. If the Starview parcel stood alone, there would be substantial damages to the remainder
for the loss of access. If the Starview parcel remainder was part of the remainder of the other lots,
the Starview parcel would not be landlocked and the damage to the remainder would be
substantially less. Presiding Judge Alexander P. White denied IDOT’s motion to consider
Starview’s remainder part of the remainder of the adjoining lots. The case proceeded to trial on
the Starview parcel standing alone with damages due to loss of access, and the jury awarded
$1,114,312 for damages to Starview’s remainder.
On appeal, the appellate court held that on the date of the filing of the Starview condemnation
suit (August 18, 1989), title to the three parcels was with different holders of title. Any activity or
transfer of title after the filing of the complaint to condemn was irrelevant as to valuation in an
eminent domain proceeding. The only question for the jury was the determination of the just
compensation to be paid to the owner of the property being condemned at the property’s value on
the date of the filing of the action to condemn.
The appellate court went on to say that “[t]o hold that the remainder value of the parcels
should have been determined after the [owners of the adjoining east parcel] acquired title to the
parcels would require that the value of the parcels be determined at a time later (by approximately
two years) [when the closing took place in 1991] than when the complaint was filed. This would
be in violation of the Eminent Domain Act. See 735 ILCS 5/7-121.” [Emphasis added.] 707
N.E.2d at 647. The appellate court affirmed Judge Alexander White’s ruling.
Chicago Title & Trust must be compared with City of Quincy, Illinois v. Diamond
Construction Co., 327 Ill.App.3d 338, 762 N.E.2d 710, 261 Ill.Dec. 141 (4th Dist. 2002). The
Diamond property was an asphalt plant. Diamond was aware of the imminence of the taking of its
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ILLINOIS EMINENT DOMAIN PRACTICE
property. Quincy wanted the land but not an asphalt plant. Diamond, anticipating being
dispossessed of its asphalt plant by condemnation, started disassembling and relocating the
asphalt plant. With the asphalt plant disassembled, Quincy had the property appraised by its
appraiser on the day before the condemnation suit was filed. The appraiser appraised the property,
not as a working asphalt plant in place, but as property minus the asphalt plant. The trial court
held that the property had to be appraised as a working asphalt plant as of the date of the taking
even though the asphalt plant no longer existed on the date of the filing. The appellate court
affirmed the lower court’s ruling.
2. [5.38] What Are the Landowners Rights During Pending Condemnation?
In Department of Natural Resources of State of Illinois v. Brauer, 339 Ill.App.3d 723, 791
N.E.2d 120, 274 Ill.Dec. 324 (3d Dist. 2003), Brauer purchased a ten-mile abandoned Milwaukee
Road rail line from the bankruptcy court. The right-of-way ran north and south from Joliet cutting
across the corner of the new Chicago/Joliet NASCAR racetrack, along the western border of the
small rural village of Manhattan, and ending on the north edge of the Joliet Arsenal. Brauer
removed and sold the rails and ties. Because many pipelines run east and west to go around Lake
Michigan, Brauer sold many pipeline and underground easements across the rail line. The Illinois
Department of Natural Resources (DNR) filed suit to condemn the ten-mile rail line for a
hiking/biking trail in January 1999. The matter went to trial in 2001, and the jury awarded Brauer
over $1 million for his 100-foot strip of land ten miles long. After the trial, the DNR determined
that after the filing of the suit to condemn in January 1999, Brauer continued to sell pipeline,
water, and sewer line easements along with an annexation agreement that a developer sought so
he could be contiguous to the Village of Manhattan. Brauer was paid $35,000 for the easements
and annexation agreement. These easements joined the many other easements that had been
granted precondemnation. None of the underground easements or the annexation agreement
would affect the proposed hiking/biking trail. DNR sought a setoff of $35,000 from the award.
The $35,000 setoff was granted by the trial court, and an appeal followed. The appellate court in a
two-to-one decision reversed the setoff of the $35,000 against Brauer’s award. The appellate
court found that there was no order during the pendency of the suit barring Brauer from selling
easements and that the selling of the easements was not double compensation for the owner. DNR
claimed that it was entitled to receive title to the property unencumbered with additional
easements. DNR had filed lis pendens giving notice to the whole world, including the developers
and grantees of easements, of the condemnation action. DNR could have filed a petition evicting
those persons claiming rights in the hiking/biking trail. It would have been politically incorrect
for DNR to cut off gas, water, sewer, and cable TV to those new village homeowners who were
annexed to the Village of Manhattan by the annexation and contiguity that was established over
and under the hiking/biking trail.
There was a dissent in Brauer. The dissenting justice opined that the sale of valuable
easement rights, “like any other valuable asset in the land, depreciated its value.” 791 N.E.2d at
124. When there is no quick-take, the property owner, unless enjoined, may deal with his or her
property without restriction. Farmers plant and harvest crops. Oil fields and gravel pits continue
to be pumped and mined. The granting of a setoff may materially change the law of the date of
valuation. Should the owner convey, transfer, encumber, or even grant easements after the filing
of the condemnation action the condemnor has the legal right to seek to quiet title and evict the
subsequent grantee from the condemned property, provided the condemnor has recorded a lis
pendens notice and successfully completes the condemnation action.
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§5.39
If the condemnor learns that the owner is changing the landscape of the property to be
condemned and that such changes will affect the proposed anticipated use of the condemnor, suit
for condemnation should be immediately filed. In addition to standard condemnation language
the complaint should also contain a count for a temporary restraining order and temporary and
permanent injunctions to restrain the owner from destroying the property for the use intended by
the condemnor.
In Forest Preserve District of DuPage County v. West Suburban Bank, 249 Ill.App.3d 900,
621 N.E.2d 215, 190 Ill.Dec. 346 (2d Dist. 1993), rev’d, 161 Ill.2d 448 (1994) (also discussed in
§5.10 above), Harry W. Kuhn, Inc., was the beneficial owner. Kuhn was a large road contractor
with many pieces of construction equipment. The forest preserve district sought to condemn his
construction yard he had operated for many years. Kuhn believed that newly arrived neighbors on
the bluff overlooking the construction yard had lobbied the forest preserve district to eliminate the
construction yard from their view. When condemnation was filed, Kuhn, with all of his
construction equipment, in a weekend, changed the landscape of the construction yard and built a
huge mountain of dirt. The forest preserve district was in court immediately for a temporary
restraining order and emergency injunction, which were granted. Kuhn appealed the granting of
the injunction, and the appellate court reversed the injunction. The forest preserve district
appealed to the Supreme Court, which reversed the appellate court and put the injunction back in
place.
The same or similar stories abound in Illinois when the owner, upon learning of the proposed
condemnation, will cut down all the trees in the proposed park, permit the land to be flooded, or
take other steps to hinder or eliminate the desire of the condemning body to acquire the site.
When a change in the property is contemplated, or happens, the attorneys for both sides must be
prepared to meet the challenge of the seeking and defense of temporary restraining and injunction
actions. Emotions run high when an owner of many years sees his or her property, home, or
business being taken by condemnation. Counsel for both sides must be prepared for unexpected
actions.
Parties to condemnation should follow the majority and dissenting opinions in Brauer, supra,
if faced with a conveyance, change in the property’s condition, or use of the property after the
filing of the suit to condemn and before the title and possession vests in the condemnor.
J. [5.39] Casinos vs. Horse Tracks
Illinois has passed legislation requiring that for two years riverboat casinos that had over
$200 million in receipts were required to pay three percent of the overage to a fund that was
distributed to the Illinois licensed horse racing tracks. See Riverboat Gambling Act, 230 ILCS
10/1, et seq.
In Empress Casino Joliet Corp. v. Giannoulias, 231 Ill.2d 62, 896 N.E.2d 277, 324 Ill.Dec.
491 (2008), the Illinois Racing Board was in charge of the distribution of the money. The casinos
filed suit in Will County, challenging the constitutionality of the statute. The casinos claimed the
State of Illinois and Illinois Racing Board were taking money from the casinos in violation of the
federal and state Constitutions. The Will County trial judge declared the taking unconstitutional.
The defendants appealed directly to the Illinois Supreme Court since the constitutionality of
Illinois legislation was at stake.
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§5.40
ILLINOIS EMINENT DOMAIN PRACTICE
The court held (l) the three-percent tax on all Illinois casinos was not arbitrary or
unreasonable and was not unconstitutional; (2) the Takings Clauses of the United States and
Illinois Constitutions were not applicable; and (3) the three-percent tax served a public purpose as
required under the Public Clause of the Illinois Constitution. In short, there was no inverse
condemnation.
K. [5.40] Oil Wells
In Leavell v. Department of Natural Resources, 397 Ill.App.3d 937, 923 N.E.2d 829, 337
Ill.Dec. 978 (5th Dist. 2010), the operator of oil wells filed a complaint for judicial review of a
decision of the Department of Natural Resources finding the operator had abandoned the wells
and permitting the wells to be transferred to another oil company. On review, the trial court
entered judgment in favor of DNR. The operator, in its appeal, asserted that the declaration of
abandonment of the oil wells was an unconstitutional taking of the operator’s interest in the wells.
The appellate court, in affirming the trial court and DNR’s position, held that the transfer of the
operator’s interest in the oil wells to another oil well company did not constitute an
unconstitutional taking.
L. [5.41] No Money for Bondholders
In City of Chicago v. Prologis, 236 Ill.2d 69, 923 N.E.2d 285, 337 Ill.Dec. 726 (2010), the
City of Chicago brought a condemnation action to acquire property. Part of the property was in a
tax increment financing district. The project had been financed by the issuance of bonds. The
value of the bonds was less than the value of the property. The landowners and bondholders filed
counterclaims for inverse condemnation seeking compensation for the bonds. The trial court
denied the inverse condemnation, and the landowners and bondholders appealed. The appellate
court affirmed, and the Supreme Court granted leave to appeal. The Supreme Court, in affirming
the trial and appellate courts, held that the city was not required to pay just compensation to the
bondholders of the TIF bonds for the loss of the bonds’ value. The TIF bonds were secured solely
by the possible increase in real estate taxes. The acquisition by the city caused the real estate to
become tax exempt.
M. [5.42] Interest on Abandoned Property
In Cwik v. Topinka, 389 Ill.App.3d 21, 905 N.E.2d 300, 328 Ill.Dec. 766 (1st Dist. 2009), the
owners of abandoned property brought a class action against the Illinois State Treasurer claiming
the state was taking and retaining the interest on unclaimed property that had been deposited with
the State Treasurer. On this issue, the appellate court held that retention by the state of interest
actually earned on the abandoned property did not constitute a taking when the properties were
not earning interest at the time the properties were abandoned.
N. [5.43] Billboards
Lamar Whiteco Outdoor Corp. v. City of West Chicago, 355 Ill.App.3d 352, 823 N.E.2d 610,
291 Ill.Dec. 318 (2d Dist. 2005), subsequent appeal, 395 Ill.App.3d 501 (2d Dist. 2009), arose
when West Chicago amended its ordinance to ban billboards over a seven-year amortization
period. The city did not enforce the ordinance for many years, and when the city sought to
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EMINENT DOMAIN PROCEEDINGS BY GOVERNMENT AUTHORITIES OTHER THAN THE STATE
§5.44
enforce the ordinance, Lamar filed suit claiming the enforcement was an unconstitutional taking
and a violation of Lamar’s civil rights. The trial court dismissed the claims. The appellate court
reversed and remanded. On remand, Lamar sought attorneys’ fees, claiming it was the prevailing
party under the Civil Rights Act of 1871, 42 U.S.C. §1983. The parties agreed that Lamar was the
prevailing party and entitled to fees and costs, but the trial court failed to set an amount of fees
and costs. The appellate court held that without an award of fees, there was no final appealable
order pursuant to S.Ct. Rule 304(a). The appeal was untimely, and the appellate court dismissed
the appeal for lack of jurisdiction.
LaSalle National Bank Ass’n v. City of Oakbrook Terrace, 393 Ill.App.3d 905, 913 N.E.2d
130, 332 Ill.Dec. 535 (2d Dist. 2009), touches on a claim affecting billboards. This case is
primarily a claimed “downzoning” case that is reviewed in §5.25 above.
O.
[5.44] Who Acts for the Condemnor?
Attorneys for condemnors should counsel their clients regarding the role of representatives of
the public body in condemnation matters. In the tax increment financing district cases in §5.6
above, the municipality was bringing the condemnation, but usually the developer is anxious to
start the development and may get involved in the attempted acquisition of the property from the
owner. In Village of Cary v. Trout Valley Ass’n, 282 Ill.App.3d 165, 667 N.E.2d 1082, 217
Ill.Dec. 689 (2d Dist. 1996), the developer was paying all of the acquisition costs and directing
the condemnation action, yet the case crashed for failure to publish a notice. Often the
municipality or state may seek to acquire property to give a developer access to property, as in
Illinois State Toll Highway Authority v. DiBenedetto, 275 Ill.App.3d 400, 655 N.E.2d 1085, 211
Ill.Dec. 702 (1st Dist. 1995). DiBenedetto went off the track because Sears, the Village of
Hoffman Estates, and the Illinois State Toll Highway Authority were all involved in attempts to
acquire the condemned property. Different offers were made, and the owner claimed that
negotiations were not in good faith, which is a prerequisite to a condemnation action. Early on,
the public body bringing the condemnation action and its attorneys should designate the point
person for all dealings with the owner. All offers, negotiations, and settlements should pass
through the public body’s condemnation attorney(s).
In Forest Preserve District of DuPage County v. Brown Family Trust, 323 Ill.App.3d 686,
753 N.E.2d 1110, 257 Ill.Dec. 484 (2d Dist. 2001), the forest preserve district sought to acquire
land from the Brown family trust. The trust filed a traverse, a motion to dismiss, and a motion for
summary judgment. The forest preserve district had passed an ordinance authorizing the
executive director, staff, and attorneys to “take the necessary steps, either by negotiation or
condemnation,” to acquire the land. 753 N.E.2d at 1113. The trust claimed in its traverse and
summary judgment motions that the district did not have the right to delegate the power of
condemnation to the executive director, staff, and attorneys. The trial court entered summary
judgment for the trust, holding that the ordinance authorizing the condemnation proceedings was
invalid in that the ordinance “improperly delegates the decision to condemn to the District’s
attorneys and staff.” 753 N.E.2d at 1114. The appellate court reversed the trial court, holding that
the ordinance was not an improper delegation of the district’s condemnation powers.
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
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§5.45
ILLINOIS EMINENT DOMAIN PRACTICE
The adage that “too many cooks may spoil the broth” is true in condemnation. One person
should be in charge, and it is recommended that this person should be an attorney who is well
acquainted with all the mountains and pitfalls of the statutory scheme and caselaw of eminent
domain.
There will be a lot of questions as to the meaning and application of this program. The
Illinois Department of Transportation has had policies and relocation programs in place for over
30 years. Relocation specialists are on IDOT staff in all of IDOTs’ district offices. Assistance and
guidance from those relocation specialists are available. Private agencies are also available for
those condemning bodies that do not have sufficient condemnations to warrant having a
relocation specialist on staff. With the enactment of the Eminent Domain Act, other relocation
services will crop up and be available with policies and guidelines already in place to assist the
condemning bodies.
P. [5.45] Forest Preserves and Easements
Most public bodies with the power of eminent domain may seek easements instead of taking
an entire fee. With more public pressure from antidevelopment and zero-growth groups, Illinois
may see more acquisition of “development” easements. Owners are entitled to just compensation
for the taking of an easement similar to a taking for a fee. The taking of an easement often results
in claims of damage to the remainder of the property.
A good discussion of the law of easements is found in Village of Round Lake v. Amann, 311
Ill.App.3d 705, 725 N.E.2d 35, 244 Ill.Dec. 240 (2d Dist. 2000). Round Lake was working with a
developer to provide access to property held by a family trust. Amann and one other property
owner (Pittelkow) claimed a prescriptive easement over the trust property. The prescriptive
easement was a gravel driveway across the property that served only the two residential
properties. The gravel driveway had been in place for over 70 years. The trust property was to be
developed as residential and a public road built on the prescriptive easement. Amann and her
neighbor claimed that if the easement were turned into a public highway, they would lose their
seclusion and privacy. The appraiser for Amann and her neighbor opined that making the
easement a public road would reduce the value of their respective properties by ten percent. The
court awarded only nominal damages of $50 and granted the Village of Round Lake the right to
have the developer build a public road and develop the property. The appellate court affirmed.
In Benno v. Central Lake County Joint Action Water Agency, 242 Ill.App.3d 306, 609 N.E.2d
1056, 182 Ill.Dec. 522 (2d Dist. 1993), Benno brought an action against the water district for
installing a water main beyond the public easement. The appellate court held that the owner had a
right of action for trespass. Benno (a lawyer) should have brought an action for inverse
condemnation in order to be entitled to reasonable attorneys’ fees and costs.
Forest Preserve District of Kane County v. Estes, 222 Ill.App.3d 167, 583 N.E.2d 640, 164
Ill.Dec. 724 (2d Dist. 1991), touches on hiking/biking/jogging easements. This author believes
that there will be more condemnation actions for trail easements as the state and nation develop a
nationwide system of trails. Landowners will resist these types of trails, claiming a violation of
their privacy and seclusion.
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§5.46
In Village of Fox River Valley Gardens v. Lake County Forest Preserve District, 224
Ill.App.3d 919, 586 N.E.2d 813, 166 Ill.Dec. 855 (2d Dist. 1992), suit was filed against the forest
preserve district for declaratory judgment that the forest preserve district did not have the power
to condemn property in Fox River Valley Gardens. The Illinois statute provides that municipal
land may not be condemned without the prior approval of the municipality unless that land is
“contiguous to an existing park or forest preserve.” 586 N.E.2d at 816, quoting 70 ILCS 805/6.
The trial court dismissed the condemnation, and the forest preserve district appealed. The
appellate court reversed, holding that a conveyance of a strip of land by the owner to the village
would not frustrate and thwart the forest preserve district’s efforts to acquire the land by eminent
domain.
Q. [5.46] Parking Lots and Driveways
Condemnation law is statutory, and many grants of the power of eminent domain are subject
to a variety of requirements, purposes, and special provisions and restrictions. It is paramount that
an attorney be completely versed in the statutory authority and the cases interpreting the
condemnation authority before proceeding with a condemnation action. For example, in our
motorized world, one would think that a county would have the right to condemn property for a
parking lot near the courthouse. However, in County of DeKalb v. Smith, 213 Ill.App.2d 775, 572
N.E.2d 379, 157 Ill.Dec. 310 (2d Dist. 1991), the appellate court held otherwise. DeKalb County
filed a condemnation action to acquire Smith’s commercial property across the street from the
DeKalb County courthouse in Sycamore. Smith filed a traverse challenging the county’s right to
condemn property for a parking lot. The trial court denied the traverse, and the case went to trial.
After the verdict and the deposit of the award with the county treasurer, Smith’s commercial
building was razed and the parking lot built. Smith appealed, and the appellate court held that
Illinois counties have not been granted the power of eminent domain for the acquisition of land
for parking lots. Now DeKalb County had a problem. The county had wrongfully taken the Smith
property, razed the buildings, and paved the parking lot. The problem was solved by paying
Smith her asking price for the property.
In McHenry County Building Commission v. Harvard State Bank, No. 90 ED 4 (McHenry
Cty.Cir.) (Rule 23), aff’d, No. 2-93-1114 (2d Dist. 1994) (Rule 23), McHenry County was faced
with the same parking problem at its courthouse in Woodstock. McHenry County had established
a public building commission pursuant to 50 ILCS 20/1, et seq. The legislature had specifically
granted public building commissions the power of eminent domain to acquire private land for
parking to serve their public buildings. When the McHenry County Building Commission filed
condemnation proceedings to acquire land across the road from the courthouse for parking, the
owners (Klehm Nursery) filed a traverse challenging the commission’s right to condemn, citing
Smith, supra. The trial court denied the traverse, and the matter proceeded to trial. On appeal, the
court in a S.Ct. Rule 23 decision affirmed the denial of the traverse, holding that the legislature
had granted the Commission the power to acquire the parking lot.
A county has the right to condemn for a jail. Mercer County v. Wolff, 237 Ill. 74, 86 N.E. 708
(1908). It would seem that parking lots are as important to a county as its jail. If the state
legislature has not granted the power of condemnation to the local body for what may seem a
proper governmental function, a traverse dismissing the case will be granted.
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§5.47
ILLINOIS EMINENT DOMAIN PRACTICE
In addition to finding places to park cars in parking lots, there is the ongoing attempt by
public bodies, at both the state and local levels, to limit driveway and curb cuts. Loss of access is
subject to just compensation. See Department of Transportation v. Chicago Title & Trust Co.,
303 Ill.App.3d 484, 707 N.E.2d 637, 236 Ill.Dec. 510 (1st Dist. 1999). The tollway takes access
on the main line as well as its approaches. Owners and developers continue to seek more
driveways as population and development increases. Good traffic engineering continues to
require driveways be built farther and farther away from major intersections. In Key Outdoor, Inc.
v. Illinois Department of Transportation, 322 Ill.App.3d 316, 750 N.E.2d 709, 255 Ill.Dec. 792
(4th Dist. 2001), an outdoor sign company was denied a commercial driveway permit, and the
appellate court affirmed. The state, many counties, and many municipalities have definite written
policies regarding driveway access to streets and highways. Most local governments follow
closely guidelines set out in the Illinois Department of Transportation’s Policy on Permits for
Access Driveways to State Highways. 92 Ill.Admin. Code pt. 550. In addition to curb cuts, most
local governments (as well as the state) have standards for the grades of driveways and
approaches to streets and highways. When a public road or street is widened and the driveway is
cut back, the driveway may become a steeper grade if the abutting property is above or below the
grade of the adjoining street. Many property owners will claim this greater difference in grade as
damages to the remainder of the property if the new grade deviates from good traffic engineering
standards. Condemnees and condemnors should consider retaining qualified traffic engineers to
advise them on these possible claims.
VI. [5.47] CONCLUSION
Attorneys for condemnors and condemnees, when considering a condemnation, should take
the following steps: (a) read and thoroughly understand the statute and supporting caselaw, read
the Eminent Domain Act, and follow the changes in this law; (b) develop a definite plan; (c)
retain qualified opinion witnesses to advise the parties on valuation, engineering, and any
technical aspects of the project; and (d) treat the owner fairly at all stages and attempt to acquire
the property sought at the fair market value at its highest and best use. Following these simple
rules will avoid a dismissal of the proceedings. The owner will be justly compensated, the project
will be promptly built, and the public body will not be assessed with the owner’s costs and
expenses for the condemnation action being dismissed.
Attorneys should not take any past legal position for granted. The courts change with the
times. Newer judges may see an issue in a different light, particularly with the tightening of
public budgets and increase in taxes. More deference and protection have been given to
landowners’ rights. The downturn in the economy has impacted condemnation for both public
bodies and landowners. Legislation will be enacted in the future changing condemnation laws.
New and old legislation will be challenged and either upheld or overturned. There will be plenty
of future opportunities for attorneys in this ever-changing field.
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6
Pretrial Procedure
LEO N. CINQUINO
Righeimer Martin & Cinquino, P.C.
Chicago
®
©COPYRIGHT 2016 BY IICLE .
6—1
ILLINOIS EMINENT DOMAIN PRACTICE
I. [6.1] Scope of Chapter
II. Initial Preparation
A. [6.2] Owner’s Attorney
1. [6.3] Traverse and Motion To Dismiss
2. [6.4] Owner’s Acquisition
3. [6.5] Property Uses
4. [6.6] Documents, History, and Experts
5. [6.7] Offers To Purchase
6. [6.8] Other Litigation, Tax Assessment, or Appraisal
7. [6.9] Owner’s Plans for the Property
8. [6.10] Owner’s Offer To Sell Property
9. [6.11] Materials Received from Condemning Authority; Sample Notice To
Produce at Quick-Take
10. [6.12] Sales of Properties in Area
11. [6.13] Leasehold Interests or Other Encumbrances
12. [6.14] Environmental Contamination
13. [6.15] Precondemnation Offer
14. [6.16] In Summary
B. [6.17] Condemnor’s Attorney
C. [6.18] Determining the Types of Opinion Witnesses Needed
D. [6.19] Factors in Selecting a Valuation Consultant or Witness
III. Quick-Take Proceedings
A. [6.20] Owner’s Attorney
B. [6.21] Condemnor’s Attorney
C. [6.22] Withdrawal of the Quick-Take Award
IV. Discovery
A.
B.
C.
D.
E.
F.
6—2
[6.23]
[6.24]
[6.25]
[6.26]
[6.27]
[6.28]
Supreme Court Rules Regarding Discovery
Interrogatories Under S.Ct. Rule 213
Discovery in Addition to S.Ct. Rule 213
Use of Interrogatories
Deposition of Valuation Witnesses
Discovery Outline
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PRETRIAL PROCEDURE
V. Pretrial Motions and Issues
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
[6.29]
[6.30]
[6.31]
[6.32]
[6.33]
[6.34]
[6.35]
[6.36]
[6.37]
[6.38]
Issues of Title
New Valuation Date
Leasehold Interest
Damage to the Remainder
Bill of Particulars
Inspection of Real Estate; Sample Agreed Protective Order
Motion in Limine
Case Management Conference
Offers To Settle Before Trial
Pretrial Appeals
ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION
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§6.1
ILLINOIS EMINENT DOMAIN PRACTICE
I. [6.1] SCOPE OF CHAPTER
This chapter provides information regarding the initial steps in preparing to handle an
eminent domain case, examines the options available at a quick-take hearing, reviews available
discovery, and discusses some pretrial motions that can be made.
The eminent domain practitioner is urged to review carefully the Eminent Domain Act, 735
ILCS 30/1-1-1, et seq., which became effective January 1, 2007, and applies to complaints to
condemn filed after that date. Among other differences, the Eminent Domain Act changed the
burden of proof to show need and necessity for a municipality with regard to a taking for
economic development. Given the economic downturn from 2006 to 2008 there have been few
new tax-increment financing (TIF) areas that need to be analyzed by an owner’s attorney.
II. INITIAL PREPARATION
A. [6.2] Owner’s Attorney
Most landowners are misinformed as to their rights and as to the government’s power in an
eminent domain proceeding. At the initial client interview, the attorney should be prepared to
inform the landowner as to what “fair cash market value” means in terms of an eminent domain
proceeding. Landowners generally have a preconceived idea as to the value of their property.
However, in some instances, the owner’s concept of value includes elements that are noncompensable in an eminent domain proceeding. A review of other chapters in this handbook will
illustrate the many methods and elements of value commonly used by real estate people or
landowners that may not be proper in an eminent domain proceeding. The attorney should be
prepared to distinguish what is and what is not compensable in an eminent domain proceeding.
If the condemnor is the Illinois Department of Transportation (IDOT) or another body with
the power of quick-take, the attorney should be prepared to inform the client regarding quicktake. See §§6.20 – 6.22 below and Chapter 4 of this handbook. An early decision must be made
as to the position the landowner will take regarding quick-take. If the owner is a small business
person who will need funds to begin a new operation, the owner’s attorney must begin preparing
for a quick-take hearing immediately. In a partial-take case this requires hiring a competent
eminent domain engineer to analyze the IDOT (or other condemning authority) plans to form a
basis for determining damage to the remainder. A valuation witness cannot properly evaluate
damage to the remainder or issues such as loss of parking, difficult access, drainage, or
nonconforming use without an engineering report.
A difficult issue exists for an owner’s attorney regarding a small partial taking. Remember an
owner can only recover damages to the remainder at this time and not after the case is complete
after the owner accepts the original offer. If, during the initial negotiations IDOT pronounces
certain remedies for damage to the remainder, those representations are not binding on IDOT. See
Department of Transportation v. Western National Bank of Cicero, 63 Ill.2d 179, 347 N.E.2d
161, 164 – 165 (1997).
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§6.2
PRACTICE POINTER

If an attorney agrees to represent an owner in this type of case, the author recommends
(1) informing the owner in writing that there is an issue of damage to the remainder that
cannot be fully explored without filing suit and obtaining IDOT plans by court order; and
(2) hiring an engineer to review the IDOT plans. This is in no way an attack on IDOT or
its negotiators. The author has never experienced an intent to deceive by IDOT, but
mistakes and changes in construction plans can occur. In the author’s recent experience
there are more construction plan changes than in past years.
A successful eminent domain proceeding requires teamwork among the attorney, the owner,
and the experts. While the landowner is usually not aware of the legal implications of an eminent
domain proceeding, he or she usually does know a great deal about the property and the
surrounding area. One key to success in eminent domain litigation is an intimate familiarity with
the subject property. A thorough discussion and view of the property with the client is very
important.
In the initial interview of the owner, the attorney should cover the following points:
Attorney’s compensation. If a contingent fee is agreed on, it must be in writing. If interest
payments by the condemnor are to be part of the contingency, this should be spelled out. Since
abandonment is always possible, the contract should include an hourly rate if final just
compensation is not paid and the case is abandoned. Keep hourly records daily to insure payment
after abandonment. The unique right of a condemnor to abandon, even after a jury verdict (except
if there is a quick-take and the condemnor takes possession), should be explained to the client.
Key information. If the owner has recently purchased the property be sure to get
1. the contract for purchase;
2. the closing documents; and
3. a detailed list of changes to the subject since purchase (e.g., new improvements,
extension of utilities, annexation and zoning, dramatic changes in the area, unusual
circumstances (such as was the client the leasee when the purchase occurred)).
It is very important to know this key evidence in order to make the best argument to keep the
purchase price out of evidence. Also, this information is critical to give to the owner’s valuation
witness. The owner has the facts; it is the job of the owner’s attorney to compile the facts to make
the best case possible and to give these facts to the owner’s experts.
Offers to purchase the subject property. The owner’s attorney should be very thorough
from the beginning in analyzing pending offers. Points to consider include the following:
1. Was the offeror capable of purchasing the property?
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§6.3
ILLINOIS EMINENT DOMAIN PRACTICE
2. What are the contingences in the offer?
3. Was the offer made in good faith?
PRACTICE POINTER

Attorneys have an obligation to check out all evidence. There is potential for an offer to
have been manufactured high or low, and if that is the situation, no reliance should be
placed in the offer.
Specific and detailed questions for discussion at the initial client interview should include the
points covered in §§6.3 – 6.15 below.
1. [6.3] Traverse and Motion To Dismiss
Does the owner want to attempt to defeat the taking through a traverse and motion to
dismiss? A general traverse may be sufficient to challenge the plaintiff’s authority to condemn
and need not conform to all of the pleading requirements of the Code of Civil Procedure, 735
ILCS 5/1-101, et seq. Forest Preserve District of DuPage County v. Miller, 339 Ill.App.3d 244,
789 N.E.2d 916, 923 – 924, 273 Ill.Dec. 742 (2d Dist. 2003) (note that this traverse was filed pro
se). Counsel should be aware of the apparently limited scope of judicial review of even an
excessive taking (see City of Elgin v. Elgin National Bank, 174 Ill.App.3d 1061, 529 N.E.2d 639,
124 Ill.Dec. 658 (1st Dist. 1988)) and the broad definition of a “public purpose.”
However, note that the Eminent Domain Act, effective January 1, 2007, provides that “a
condemning authority may not take or damage property by the exercise of eminent domain unless
it is for a public use, as set forth in this Section.” 735 ILCS 30/5-5-5(a). See also 735 ILCS 30/55-5(b) through 30/5-5-5(e).
In Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 199
Ill.2d 225, 768 N.E.2d 1, 263 Ill.Dec. 241 (2002), aff’g 304 Ill.App.3d 542 (5th Dist. 1999),
Southwestern Illinois Development Authority (SWIDA) sought to acquire the 148.5-acre subject
property owned by the defendant pursuant to quick-take. The subject property was adjacent to a
racetrack owned by Gateway International Motorsports Corporation and was needed to
accommodate additional parking for the racetrack. The county board approved the use of quicktake, adopting a resolution finding that the parking facility was needed and necessary. SWIDA
held a public meeting and adopted a resolution like the county’s resolution. SWIDA entered into
an agreement with Gateway to convey the property after its acquisition. The trial court denied the
traverse and motion to dismiss and also denied the motion to strike the quick-take. At the hearing,
Gateway testified that it was cheaper to acquire the property by eminent domain than to build a
parking structure.
The court held that SWIDA exceeded the boundaries of constitutional principles and its
authority by transferring the property to a private party for a profit when the property was not put
to a public use. The court found no public use although SWIDA argued that the taking fostered
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PRETRIAL PROCEDURE
§6.3
economic development, the promotion of public safety, and the prevention or elimination of
blight. SWIDA also argued that there is no distinction between “public purpose” and “public use”
and that the proper test is simply to ask whether a public purpose is served by the taking.
The court stated that a public use requires that the 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. The
court distinguished cases dealing with the elimination of blight or slums or in which there were
public safety concerns. See also Southwestern Illinois Development Authority v. Al-Muhajirum,
318 Ill.App.3d 1005, 744 N.E.2d 308, 253 Ill.Dec. 26 (5th Dist. 2001). The court stated that the
facts of National City Environmental, supra, did not satisfy the public-use requirement, especially
in light of evidence that Gateway could have built a public garage on its existing property. While
recognizing that economic development is an important public purpose, the court stated that to
constitute a public use, something more than a mere benefit to the public must flow from the
contemplated improvement.
See City of Chicago v. Midland Smelting Co., 385 Ill.App.3d 945, 896 N.E.2d 364, 368, 324
Ill.Dec. 578 (1st Dist. 2008), which distinguishes and explains National City Environmental in
denying a traverse.
National City Environmental has not yet been interpreted; therefore, it is unclear whether the
courts will give it a broad or narrow interpretation. A broad interpretation could eliminate many
condemnation cases.
National City Environmental does not hold that an admission fee charged to the public
eliminates a public purpose. See Friends of the Parks v. Chicago Park District, 203 Ill.2d 312,
786 N.E.2d 161, 271 Ill.Dec. 903 (2003).
The subsequent transfer of property to a private entity does not transform a taking for public
use into a taking for private use. Kelo v. City of New London, Connecticut, 545 U.S. 469, 162
L.Ed.2d 439, 125 S.Ct. 2655 (2005). See also Hawaii Housing Authority v. Midkiff, 467 U.S. 229,
81 L.Ed.2d 186, 104 S.Ct. 2321 (1984); Berman v. Parker, 348 U.S. 26, 99 L.Ed. 27, 75 S.Ct. 98
(1954); People ex rel. Adamowski v. Chicago Railroad Terminal Authority, 14 Ill.2d 230, 151
N.E.2d 311, 314 – 315 (1958); Illinois State Toll Highway Commission v. Eden Cemetery Ass’n,
16 Ill.2d 539, 158 N.E.2d 766 (1959); People ex rel. City of Urbana v. Paley, 68 Ill.2d 62, 368
N.E.2d 915, 921, 11 Ill.Dec. 307 (1977). But see 735 ILCS 30/5-5-5(b) through 30/5-5-5(e).
Furthermore, nowhere in National City Environmental does the Illinois Supreme Court
require that the public must have access to all parts of a project to qualify as a valid public use.
The National City Environmental court stated that it did not require a bright-line test to determine
whether the taking lacks a showing of public purpose. 768 N.E.2d at 10.
The condemning body must make a reasonable attempt to agree, and, if it has an appraisal,
the offer may have to be based on that appraisal. City of Naperville v. Old Second National Bank
of Aurora, 327 Ill.App.3d 734, 763 N.E.2d 951, 261 Ill.Dec. 702 (2d Dist. 2002). Good-faith
negotiations may be challenged in an interlocutory appeal. State agencies, such as the Department
of Transportation, must send a letter of offer at least 60 days before filing suit. If the taking is
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§6.4
ILLINOIS EMINENT DOMAIN PRACTICE
amended to either increase the area to be acquired or decrease the compensation to be paid, then
the state agency must wait another 60 days before filing suit. Department of Transportation ex
rel. People v. 151 Interstate Road Corp., 209 Ill.2d 471, 810 N.E.2d 1, 284 Ill.Dec. 384 (2004).
The condemning body may delegate negotiations, settlement with the owners, and filing a
complaint to condemn if a settlement is not reached. Forest Preserve District of DuPage County
v. Brown Family Trust, 323 Ill.App.3d 686, 753 N.E.2d 1110, 257 Ill.Dec. 484 (2d Dist. 2001).
The enabling ordinance must adequately describe the property to be condemned. Miller,
supra. In Miller, the plaintiff sought to pass a second ordinance with the proper legal description
in conformance with the amended complaint after the posttrial motion was filed. The court found
that the subsequent ordinance did not cure the insufficiencies of the first ordinance on which the
complaint to condemn was based.
The plaintiff is not required under 735 ILCS 30/10-5-5 to cite every statute granting the
authority to condemn the property in its complaint. See Trotter v. Spezio, 349 Ill.App.3d 959, 812
N.E.2d 577, 285 Ill.Dec. 757 (3d Dist. 2004).
In Board of Education, Pleasantdale School District No. 107, Cook County, Illinois v. Village
of Burr Ridge, 341 Ill.App.3d 1004, 793 N.E.2d 856, 276 Ill.Dec. 97 (1st Dist. 2003), a school
district successfully challenged a municipality’s tax-increment financing by filing a complaint for
injunctive relief. The trial court found that obsolete platting, diversity of ownership, flooding, and
tax delinquencies did not apply, and there was no error in the trial court’s consideration of new
developments in the TIF area that occurred without TIF funding.
Any challenge to the condemnor’s authority to condemn must be filed in a timely fashion and
cannot be raised for the first time on appeal. Board of Trustees of University of Illinois v. Shapiro,
343 Ill.App.3d 943, 799 N.E.2d 383, 278 Ill.Dec. 665 (1st Dist. 2003).
There is a very limited review on IDOT’s acquisition for highway purposes. See Department
of Public Works & Buildings v. Lewis, 411 Ill. 242, 103 N.E.2d 595, 599 (1952). The client
should know that it is virtually impossible to have a court find that IDOT’s plans are so abusive
that the case will be dismissed. At most IDOT’s taking can be delayed for technical issues such as
bona fide attempt to agree, etc. It is highly unlikely that the owner will permanently defeat an
IDOT taking.
2. [6.4] Owner’s Acquisition
When and how did the owner acquire the subject property? Under certain circumstances, the
purchase price may be admissible. Department of Conservation v. Aspegren Financial Corp., 72
Ill.2d 302, 381 N.E.2d 231, 21 Ill.Dec. 153 (1978). But see Illinois State Toll Highway Authority
v. Grand Mandarin Restaurant, Inc., 189 Ill.App.3d 355, 544 N.E.2d 1145, 136 Ill.Dec. 370 (2d
Dist. 1989); Illinois State Toll Highway Authority v. American National Bank & Trust Company
of Chicago, 236 Ill.App.3d 696, 606 N.E.2d 147, 179 Ill.Dec. 315 (2d Dist. 1992), aff’d in part,
rev’d in part on other grounds, 162 Ill.2d 181 (1994).
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3. [6.5] Property Uses
What uses have been and are being made of the property? Counsel must remember, though,
that a property is valued at its highest and best use, which may be a use other than the present use.
Department of Public Works & Buildings v. Lambert, 411 Ill. 183, 103 N.E.2d 356 (1952).
Generally, highest and best use is a question of fact for the jury. However, a witness’s testimony
as to highest and best use may be so improbable that it should be excluded from the jury. City of
Quincy, Illinois v. Diamond Construction Co., 327 Ill.App.3d 338, 762 N.E.2d 710, 714 – 715,
261 Ill.Dec. 141 (4th Dist. 2002).
4. [6.6] Documents, History, and Experts
What maps, plats, aerial photographs, land use studies, engineering studies, and soil borings
does the owner have? What is the history of the property and the surrounding area in terms of
development, land use, sales, etc.? What real estate people or experts such as engineers or land
planners does the owner feel have some unique knowledge about the property or area?
5. [6.7] Offers To Purchase
Have any offers been made to purchase the property? The Illinois Supreme Court has held
that offers are admissible only if there are no comparable sales in the area and if the offers were
bona fide and made before the property was designated for acquisition. City of Chicago v.
Lehmann, 262 Ill. 468, 104 N.E. 829 (1914). See also City of Chicago v. Anthony, 136 Ill.2d 169,
554 N.E.2d 1381, 144 Ill.Dec. 93 (1990); City of Chicago v. Blanton, 15 Ill.2d 198, 154 N.E.2d
242 (1958); Department of Public Works & Buildings v. Lambert, 411 Ill. 183, 103 N.E.2d 356
(1952); Jefferson Park District v. Sowinski, 336 Ill. 390, 168 N.E. 370 (1929). Appellate courts
have also so held. Illinois State Toll Highway Authority v. Dicke, 208 Ill.App.3d 158, 566 N.E.2d
1003, 153 Ill.Dec. 153 (2d Dist. 1991); Department of Public Works & Buildings of State of
Illinois ex rel. People v. Lankford, 65 Ill.App.2d 133, 212 N.E.2d 14 (4th Dist. 1965). However,
offers made by the present owner to purchase the subject property are admissible as an admission
against interest. Lake County Forest Preserve District v. O’Malley, 96 Ill.App.3d 1084, 421
N.E.2d 980, 52 Ill.Dec. 117 (2d Dist. 1981). In County of St. Clair v. Wilson, 284 Ill.App.3d 79,
672 N.E.2d 27, 219 Ill.Dec. 712 (5th Dist. 1996), the court held that bona fide offers to purchase
adjacent property similar in size, location, and use to the subject property were admissible. All
experts had testified that such offers were the type of evidence they would have considered in
forming their opinions of value. Based on Federal Rules of Evidence 703 and 705, the court held
that such offers are admissible and are not contingent on the presence or absence of comparable
sales. However, the offers must be bona fide.
6. [6.8] Other Litigation, Tax Assessment, or Appraisal
Has any other litigation, such as attempts at rezoning, occurred that may affect the property?
Have there been any attempts to lower the tax assessment? Have any appraisals been made of the
property?
When requested by the owner, the state must produce the appraisal on which it based its offer.
Department of Transportation ex rel. People v. Hunziker, 342 Ill.App.3d 588, 796 N.E.2d 122,
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277 Ill.Dec. 407 (3d Dist. 2003). But see Department of Transportation of State of Illinois v.
Tucker, 366 Ill.App.3d 739, 853 N.E.2d 749, 304 Ill.Dec. 672 (3d Dist. 2006), which appears to
overrule Hunziker.
7. [6.9] Owner’s Plans for the Property
What plans does the owner have for the property? Market value, not the value to the owner for
his or her purposes, is the measure of compensation (Peoples Gas Light & Coke Co. v. Buckles,
24 Ill.2d 520, 182 N.E.2d 169, 176 (1962)), but the owner’s plan may represent the highest and
best use. The attorney should recognize, however, that the owner’s proposed use and value may
need to be adapted to fit the existing rules of valuation.
8. [6.10] Owner’s Offer To Sell Property
Has the owner ever offered the property for sale? An offer could be an admission against
interest if a higher value is sought at trial. Williamson County v. Brock, 367 Ill. 159, 10 N.E.2d
654, 655 (1937).
9. [6.11] Materials Received from Condemning Authority; Sample Notice To Produce
at Quick-Take
Have materials such as sales, plats, appraisals, or redevelopment plans been received from the
condemning authority? Plans for the proposed public use are critical if the case involves a partial
taking and damage to the remainder.
Counsel should serve the Supreme Court Rule 213 interrogatories and request to produce
when filing the appearance. Before the quick-take hearing, counsel should request that the
engineer be present with the plat of taking and the plans. Below is a sample notice to be served on
the plaintiff’s attorney.
[City],
a municipal corporation,
Plaintiff,
v.
[Landowner], et al.,
Defendants.
)
)
)
)
)
)
)
)
Case No. ____
NOTICE TO PRODUCE AT QUICK-TAKE
TO:
[Plaintiff’s attorney]
YOU ARE HEREBY NOTIFIED to produce [name of person to produce] or the
plaintiff’s engineer at the quick-take hearing in this matter together with the following:
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1. the full-scale drawing of the plat of taking and the engineering with regard to the
subject property;
2. the construction plans regarding the subject property;
3. any surveys, aerials, and photos of the subject property;
4. any appraisals of the subject property;
5. any letters of offer; and
6. any Minutes of Condemnation.
This notice is pursuant to Supreme Court Rule 237.
[defendant’s name]
By: ___________________________________
Attorneys for Owners
10. [6.12] Sales of Properties in Area
Does the owner know of any sales of properties in the area? The test for admissibility of sales
evidence appears to be whether it is reasonably relied on by experts in the field and not excluded
by eminent domain law. City of Chicago v. Anthony, 136 Ill.2d 169, 554 N.E.2d 1381, 144
Ill.Dec. 93 (1990).
11. [6.13] Leasehold Interests or Other Encumbrances
Are there any leasehold interests or other encumbrances on the title? An owner of an offpremises outdoor advertising sign is entitled to compensation. See Department of Transportation
v. Drury Displays, Inc., 327 Ill.App.3d 881, 764 N.E.2d 166, 261 Ill.Dec. 875 (5th Dist. 2002).
12. [6.14] Environmental Contamination
Is the owner aware of any environmental contamination on the property? In Department of
Transportation ex rel. People v. Parr, 259 Ill.App.3d 602, 633 N.E.2d 19, 198 Ill.Dec. 557 (3d
Dist. 1994), the court held that, absent adherence to the administrative procedure under the
Environmental Protection Act, 415 ILCS 5/1, et seq., for recovery of environmental remediation
costs, the condemning body cannot introduce evidence of remediation costs at an eminent domain
proceeding. But see 735 ILCS 30/10-5-50 stating that proof of any violation of any environmental
law or regulation, its effect on the fair market value of the property, and the cost of compliance
are admissible as evidence in a trial on just compensation.
NOTE: Whether or not this evidence is admissible, it is important to review any environmental
report that exists.
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13. [6.15] Precondemnation Offer
Is there a precondemnation offer? Evaluate the precondemnation offer if there is one. If there is
a partial take, determine whether the condemnor has offered damage to the remainder, and, if so,
identify the elements of these damages.
14. [6.16] In Summary
Some elements of damage to the remainder are obvious such as the taking of access rights,
bisection of the property leaving uneconomic remnants, or a material change in size or shape.
Some elements of damage to the remainder cannot be analyzed without a complete set of the
condemnor’s construction plans. More difficult issues involve drainage, reduced or relocated
driveways, nonconforming use, loss of parking, and traffic flow through the remainder.
Given the current real estate market, the owner’s attorney should carefully analyze the value of
the land taken as set forth in the initial offer. Both in a rapidly rising market and in an uncertain
market, the assistance of a valuation expert many be necessary at the initial analysis of the offer.
Recommending a settlement without a supporting valuation consultation may not be the best
approach.
The owner should be encouraged to tell counsel everything about the property, good or bad.
The attorney must know as much as possible about the property, and the owner is an excellent
source of direct information and leads to other people with information. Be sure to pass all
information, good or bad, to the owner’s experts.
B. [6.17] Condemnor’s Attorney
The condemnor’s attorney also must learn about the subject property. At the initial stage, the
condemnor’s attorney ordinarily will not interview the owner (although the owner’s deposition
can be taken once the suit is filed) but will usually receive appraisals from the condemning
authority that have been prepared in anticipation of the condemnor’s offer to purchase. (An
attempt to agree is required by 735 ILCS 30/10-5-10.) The public body will have maps, plats,
photographs, construction plans, and sales information. The condemnor’s attorney should review
these materials and should view the subject property with the appraiser.
If the case involves a partial taking and/or the construction of a public improvement, the
attorney should meet with the engineer for the condemnor to review the plans for the
improvement. The appraiser should be present at a meeting with the engineer to make sure the
appraisal is based on the latest plans for the improvement. A checklist for the condemnor’s
attorney at the initial stage includes the following steps:
1. Review the written appraisal, map, plats, and studies.
2. Meet with the appraiser and engineer to review the plans for the improvement.
3. Inspect the property with the appraiser and the engineer.
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4. View sales used in the appraiser’s report.
5. Check out the facts in the appraisal (size, take, improvement, zoning, etc.) to make sure
they are correct. Forest Preserve District of DuPage County v. Miller, 339 Ill.App.3d 244, 789
N.E.2d 916, 923 – 924, 273 Ill.Dec. 742 (2d Dist. 2003).
6. Check the legal description in the pleadings against that in the parcel plat. Also check the
legal description contained in the parcel plat. Both a legal description and a plat can be used in
defining a tax-increment financing area. City of Marseilles v. Radke, 307 Ill.App.3d 972, 718
N.E.2d 1052, 241 Ill.Dec. 198 (3d Dist. 1999).
7. Check the legal description in the enabling ordinance (if the condemnor is not an agency
of the State). Illinois State Toll Highway Authority v. DiBenedetto, 275 Ill.App.3d 400, 655
N.E.2d 1085, 211 Ill.Dec. 702 (1st Dist. 1995).
Furthermore, the condemnor’s attorney must be prepared in the event a traverse is filed at the
quick-take. If it is, the issues in the traverse must be tried first. See Department of Public Works
& Buildings of State of Illinois ex rel. People v. Neace, 13 Ill.App.3d 982, 301 N.E.2d 509 (2d
Dist. 1973).
A condemnor’s attorney must have evidence of need and necessity (a certified copy of an
ordinance) and a bona fide attempt to agree. In People ex rel. Department of Transportation v.
Kotara, L.L.C., 379 Ill.App.3d 276, 884 N.E.2d 1235, 318 Ill.Dec. 964 (3d Dist. 2008), the trial
court was reversed and the quick-take order set aside because the owner was improperly restricted
in attempting to prove that a bona fide attempt to agree was not made. Note that if the taking is
for economic redevelopment, the burden of proof may change. See 735 ILCS 30/5-5-5(b) through
30/5-5-5(e). The attempt must be made in good faith. See Forest Preserve District of Will County
v. Marquette National Bank, 208 Ill.App.3d 823, 567 N.E.2d 635, 153 Ill.Dec. 677 (3d Dist.
1991); City of Naperville v. Old Second National Bank of Aurora, 327 Ill.App.3d 734, 763
N.E.2d 951, 261 Ill.Dec. 702 (2d Dist. 2002). The offer on a full taking may also need to include
relocation costs under 735 ILCS 30/10-5-62.
A condemnor’s attorney may also have to prove that all requirements under the statute have
been fulfilled. See Village of Cary v. Trout Valley Ass’n, 282 Ill.App.3d 165, 667 N.E.2d 1082,
217 Ill.Dec. 689 (2d Dist. 1996). But see also City of Oakbrook Terrace v. LaSalle National
Bank, 186 Ill.App.3d 343, 542 N.E.2d 478, 134 Ill.Dec. 299 (2d Dist. 1989). If representing a
municipality, is it a home-rule entity? If it is not home rule, then an ordinance that conflicts with
state law must fall. Hawthorne v. Village of Olympia Fields, 204 Ill.2d 243, 790 N.E.2d 832, 274
Ill.Dec. 59 (2003) (not eminent domain case). But see the Eminent Domain Act, in which the
powers of a home-rule municipality are limited by the Act.
C. [6.18] Determining the Types of Opinion Witnesses Needed
An appraisal license from the State of Illinois is necessary for an expert to render an opinion
of fair cash market value in a document entitled an appraisal. 225 ILCS 458/5-5(a). Also, an
engineer must be a licensed professional engineer with the State of Illinois to render engineering
opinions in Illinois. 225 ILCS 325/39(b)(4). However, these statutes alone are not grounds to bar
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§6.19
ILLINOIS EMINENT DOMAIN PRACTICE
an engineer (and presumably a valuation expert) since it is up to the trial court to determine what
type of expert will assist a jury. See Thompson v. Gordon, 221 Ill.2d 414, 851 N.E.2d 1231, 303
Ill.Dec. 806 (2006) (reversing trial court for barring engineer solely on 225 ILCS 325/39).
After taking the steps listed in §6.17 above, the attorney should have some idea as to what
issues will affect valuation in the case. Supreme Court Rule 201(b)(3) protects a party from
having to disclose consultants’ opinions or their work product unless there is a showing of special
hardship. The owner’s attorney may wish to delay consulting an opinion witness until after
receiving an answer to a notice to produce and/or initial interrogatories. A review of the
condemnor’s written appraisal, sales information, and construction plans may be helpful in the
selection of opinion witnesses or consultants.
Before retaining an opinion witness, the attorney must first decide which issues in the case
require opinion testimony. In all cases, the attorney needs to consult a person familiar with
valuation. Other opinion witnesses may be necessary. For example, if highest and best use or
rezoning is at issue, a land planner may be necessary. An engineer may be necessary (1) to
address issues such as availability of utilities, delineation of flood plain, size of parcel,
reconstruction estimates, drainage, environmental factors, traffic flow, soil conditions, or parking;
or (2) to review the plan for the proposed public improvement. If the existence or size of wetlands
is at issue, it is necessary to hire an expert in that area to testify and consult with the valuation
witnesses. In Department of Transportation v. LaSalle National Bank, 251 Ill.App.3d 901, 623
N.E.2d 390, 191 Ill.Dec. 145 (2d Dist. 1993), the court held that it is for the jury to determine the
extent of wetlands on the subject property in arriving at an opinion of final just compensation. See
Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531
U.S. 159, 148 L.Ed.2d 576, 121 S.Ct. 675 (2001) (narrows use of “Migratory Bird Rule” when
wetlands may be one issue).
The revisions to the Federal Rules of Civil Procedure that took effect on December 1, 2006,
provided for discovery of electronically stored information. At present, the Illinois Supreme
Court Rules do not specifically address this issue. It is well to remember that there is no privilege
with regard to an attorney’s communication with an expert or the expert’s notes. One
commentator has suggested placing a legend on all notes, stating:
THESE NOTES ARE INCOMPLETE AND HAVE BEEN PREPARED FOR
PERSONAL USE ONLY. NO ONE MAY RELY ON THEM FOR ANY PURPOSE.
ALL VIEWS ARE SUBJECT TO CHANGE AS ADDITIONAL INFORMATION
BECOMES AVAILABLE OR IS CLARIFIED. Gregory P. Joseph, Engaging Experts,
Nat’l L.J., Apr. 18, 2005, at 12, www.josephnyc.com/articles/viewarticle.php?24.
D. [6.19] Factors in Selecting a Valuation Consultant or Witness
Illinois courts apply liberal standards in determining who may give an opinion of value. A
witness does not have to be an “expert” or even engaged in buying and selling land to give an
opinion of value. Department of Public Works & Buildings v. Bohne, 415 Ill. 253, 113 N.E.2d
319, 325 (1953). These liberal standards give an attorney wide leeway in selecting a valuation
witness. In many instances, professional appraisers who have impressive qualifications and
experience in condemnation matters may be helpful, especially if the case at hand involves
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§6.19
complex elements of damage to the remainder. In a case involving valuation of a large tract of
vacant land in an undeveloped area, a local broker who has sold similar land may be an important
valuation witness or consultant.
In selecting a valuation witness or consultant, some general factors to consider are
1. specific experience in the area of the subject property as an appraiser, broker, or
developer;
2. general background, experience, and qualifications (note that the statutes discussed in
§6.18 above should be considered and discussed with non-licensed valuation witnesses
since possible criminal sanctions are included);
3. specific experience with the type of issues the case will involve;
4. professional reputation; and
5. experience as a witness.
In order to select the best qualified witness or consultant, the attorney must be able to
determine the issues in the case. Selection of witnesses should be made with the realization that a
jury may be necessary. The attorney should consider what type of witness a jury will believe and
what type of witness will fit his or her final argument.
In Thompson v. Gordon, 221 Ill.2d 414, 851 N.E.2d 1231, 303 Ill.Dec. 806 (2006), the
Supreme Court held that an expert witness testifying to engineering opinions does not need to be
licensed by the state. The court overruled the previous decision in People v. West, 264 Ill.App.3d
176, 636 N.E.2d 1239, 201 Ill.Dec. 807 (5th Dist. 1994). West had held that licensing is a
prerequisite to the admissibility of expert testimony, rather than a factor to be weighed in
considering expert qualifications. The reasoning in Thompson is in line with the prior line of
cases that held that anyone who is acquainted with the property being condemned and has
knowledge of value, either in the sale or ownership of property nearby, is competent to testify,
and the question of the degree of his or her experience is one of weight and not of competency.
See Department of Public Works & Buildings v. Pellini, 7 Ill.2d 367, 131 N.E.2d 55, 57 – 58
(1955); Trustees of Schools of Township No. 44 v. Kirane, 5 Ill.2d 64, 124 N.E.2d 886, 888 – 889
(1955); City of Chicago v. Vaccarro, 408 Ill. 587, 97 N.E.2d 766 (1951); Forest Preserve Dist. of
Cook County v. Kercher, 394 Ill. 11, 66 N.E.2d 873, 879 (1946); Department of Public Works &
Buildings v. Diggins, 374 Ill. 11, 27 N.E.2d 826 (1940); Department of Public Works & Buildings
v. Foreman State Trust & Savings Bank, 363 Ill. 13, 1 N.E.2d 75, 79 (1936); Kankakee Park Dist.
v. Heidenreich, 328 Ill. 198, 159 N.E. 289 (1927); Illinois State Toll Highway Authority v.
Humphrey Estate, 62 Ill.App.3d 316, 379 N.E.2d 626, 19 Ill.Dec. 754 (2d Dist. 1978);
Department of Public Works & Buildings of State of Illinois ex rel. People v. American National
Bank & Trust Co., 36 Ill.App.3d 439, 343 N.E.2d 686 (2d Dist. 1976).
The trial court may exercise its discretion in barring the admission of an appraiser’s
testimony. See Southwestern Illinois Development Authority v. Al-Muhajirum, 348 Ill.App.3d
398, 809 N.E.2d 730, 284 Ill.Dec. 164 (5th Dist. 2004) (trial court affirmed, no abuse of
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§6.20
ILLINOIS EMINENT DOMAIN PRACTICE
discretion); City of Springfield, Illinois v. West Koke Mill Development Corp., 312 Ill.App.3d
900, 728 N.E.2d 781, 784 – 785, 245 Ill.Dec. 699 (4th Dist. 2000) (trial court affirmed for
allowing appraisal testimony that did not use uniform value for entire property); Department of
Transportation, State of Illinois v. Kelley, 352 Ill.App.3d 278, 815 N.E.2d 1214, 287 Ill.Dec. 411
(3d Dist. 2004) (trial court reversed for allowing appraisers to value different portions of whole
property at different values); Board of Trustees of University of Illinois v. Shapiro, 343 Ill.App.3d
943, 799 N.E.2d 383, 278 Ill.Dec. 665 (1st Dist. 2003) (trial court affirmed for barring appraiser
testimony when comparable sales were either under threat of condemnation or zoned differently);
People ex rel. Department of Transportation v. Firstar Illinois, 365 Ill.App.3d 936, 851 N.E.2d
682, 303 Ill.Dec. 495 (2d Dist. 2006) (trial court’s refusal to reopen discovery on remand was
affirmed when original appraiser had improperly relied on map).
PRACTICE POINTER

Always remember to give your valuation witness the reports from non-valuation experts.
There is no point in having an engineer or land planner if the valuation witness does not
consider the expert’s opinions. Also, give your valuation witness unfavorable
nontestifying expert reports your client has in his or her possession and that will be
turned over to your opponent. Nothing is worse than allowing your own expert to be
surprised by cross-examination that you, as an attorney, should have anticipated. Expert
reports obtained by your own client — that you have hidden from your expert — are
much more dangerous when the valuation witness has no prepared answer to the coming
cross.
III. QUICK-TAKE PROCEEDINGS
A. [6.20] Owner’s Attorney
Prior to commencement of discovery, certain condemnors have a right to exercise the power
of quick-take. See Chapter 4 of this handbook; 735 ILCS 30/25-7-103.1, et seq.; Department of
Transportation of State of Illinois ex rel. People v. Collins, 69 Ill.App.3d 269, 387 N.E.2d 6, 25
Ill.Dec. 549 (3d Dist. 1979). At the quick-take, the condemnor must prove not only the necessity
of the condemnation but also that it is necessary to use the quick-take procedure. Times Mirror
Cable Television of Springfield, Inc. v. First National Bank of Springfield, 221 Ill.App.3d 340,
582 N.E.2d 216, 164 Ill.Dec. 8 (4th Dist. 1991). If the owner wants to contest the condemnor’s
right to acquire its property by filing a traverse and motion to dismiss, this pleading must be filed
prior to the quick-take hearing since in that hearing the court determines the condemnor’s right to
acquire the property. Department of Transportation of State of Illinois ex rel. People v.
Roodhouse, 104 Ill.App.3d 880, 433 N.E.2d 703, 60 Ill.Dec. 661 (4th Dist. 1982). If the owner
does file a traverse and motion to dismiss, it is reversible error not to try that issue prior to the
plaintiff’s quick-take. Department of Public Works & Buildings of State of Illinois ex rel. People
v. Neace, 13 Ill.App.3d 982, 301 N.E.2d 509 (2d Dist. 1973).
Quick-take gives the owner preliminary compensation for the taking of its property. If quicktake is not employed and the case proceeds to trial, the owner can lose possession of the property
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without any payment if either party appeals the jury verdict. See 735 ILCS 30/10-5-80;
Department of Public Works & Buildings, State of Illinois v. Forbeck, 118 Ill.App.2d 231, 254
N.E.2d 182 (3d Dist. 1969); County of Cook v. Malysa, 39 Ill.2d 376, 235 N.E.2d 598 (1968);
Central Illinois Public Service Co. v. Gibbel, 65 Ill.App.3d 890, 382 N.E.2d 846, 22 Ill.Dec. 456
(4th Dist. 1978). The condemnor cannot appeal if it pays the jury verdict, and the condemnee
cannot appeal if it withdraws the money deposited.
When quick-take is used, the owner always retains the preliminary compensation until a final
determination of just compensation. The question of what interest is applicable on the difference
between the preliminary just compensation and final just compensation is for the jury if a jury
demand is made by either party. Illinois State Toll Highway Authority v. American National Bank
& Trust Company of Chicago, 162 Ill.2d 181, 642 N.E.2d 1249, 205 Ill.Dec. 132 (1994). In any
event, the six-percent statutory rate set by the Eminent Domain Act, 735 ILCS 30/20-5-30, is not
binding, and the owner can present evidence entitling it to a higher interest rate. Id. If the
preliminary amount withdrawn by a party exceeds that party’s share of the final just
compensation, the party will be required to return the difference with interest accruing from the
date of the jury verdict. Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust
Co., 157 Ill.2d 282, 626 N.E.2d 213, 193 Ill.Dec. 180 (1993).
When faced with a quick-take, the owner can
1. simply attend the quick-take hearing and not contest the condemnor’s power, in effect,
making the hearing the beginning of the discovery process;
2. contest the taking generally;
3. contest the exercise of the power of quick-take;
4. at the discretion of the trial court (735 ILCS 30/20-5-10(c) states that “then the court shall
hear such evidence as it may consider necessary and proper for a preliminary finding of
just compensation”), offer evidence as to the amount of preliminary compensation; or
5. request the trial court to appoint an independent appraiser or appraisers, which also is a
matter of judicial discretion. Heritage Standard Bank & Trust, supra.
In determining what course to take, the following factors, among others, should be
considered:
1. A valuation witness presented at this point may not be fully prepared, which may
decrease the witness’s effectiveness at the trial on final compensation.
2. Contesting the value at the quick-take hearing will give the condemnor’s attorney an
early view of the owner’s theory of the case.
3. The owner must return any amount by which the preliminary compensation withdrawn
exceeds the final compensation due that owner. An unrealistically high quick-take award may
make the ultimate settlement of the case more difficult.
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4. As discussed above (see American National Bank & Trust, supra), interest on the
difference between preliminary just compensation and final just compensation is for the jury to
determine. While interest applies to the owner’s award from the date of possession (735 ILCS
30/20-5-30), the state receives interest only from the date of the jury verdict (Heritage Standard
Bank & Trust, supra).
5. There will be added witnesses’ fees involved in contesting value at the quick-take.
6. In most counties, an eminent domain matter can be set for trial at an early date; therefore,
a condemnor’s attorney may seek an early date instead of facing a high quick-take deposit. As
pointed out above, this could ultimately hurt the owner since the condemnor can gain possession
during the appeal of a jury verdict without the owner receiving any money.
7. There may not be time to put on a credible valuation case at the quick-take hearing.
8. The result of the quick-take cannot be put in evidence at the trial of final compensation.
735 ILCS 30/20-5-10(d).
If the decision is to present evidence as to preliminary compensation, the owner’s attorney
should present a valuation witness to give an opinion of fair cash market value and damage to the
reminder. See Chapter 8 of this handbook on presenting valuation witnesses. If the decision is to
present no evidence at the quick-take hearing, the owner’s attorney should attend anyway since
he or she will probably have the opportunity to cross-examine the plaintiff’s appraiser and
engineer and will gain an early prediscovery view of the government’s case and the exact nature
of the public improvement. Most trial courts will also require the government to furnish to the
owner a copy of its written appraisal and construction plans at the quick-take hearing. If the court
appoints independent appraisers, they can testify at a subsequent trial, but their appointment by
the court cannot be disclosed. In Southwestern Illinois Development Authority v. Al-Muhajirum,
348 Ill.App.3d 398, 809 N.E.2d 730, 284 Ill.Dec. 164 (5th Dist. 2004), the trial court did not
abuse its discretion in striking the owners’ appraisals and barring expert opinions when the
appraiser’s opinion was based on the value of the various improvements to the land that were
planned in the future but had not been built.
After the determination of preliminary just compensation and the deposit of the award with
the county treasurer, upon entry of the appropriate order, the title vests in the condemnor. The
owner’s attorney may delay the condemnor’s right to possession after vesting of title upon proof
of undue hardship, but the owner may be required to pay rent for the period possession is
withheld. 735 ILCS 30/20-5-15(b).
B. [6.21] Condemnor’s Attorney
The condemnor’s attorney has to produce evidence necessary to prove the statutory
requirements for a quick-take. 735 ILCS 30/20-5-10(b). Ordinarily, this is accomplished by
presenting the testimony of the condemnor’s real estate appraiser and condemnation engineer
along with exhibits illustrating the construction plans for the project, the construction plans for
the subject property, the parcel plat, and the proposed scheduling of the improvement.
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After the attorney has filed the motion for quick-take and the date for the hearing has been
set, he or she should notify the appraiser and condemnation engineer. It usually is necessary for
the appraiser to update the opinion of value to the date the petition to condemn was filed.
Some points for counsel to cover to ensure a smooth quick-take hearing include the
following:
1. Review the improvement plans and quick-take exhibits. These exhibits should include the
overall project plan, the part of the overall plan that involves the parcel in question, the parcel
plat, and some evidence of the scheduling of the project to show the need for quick-take. See City
of Chicago v. St. John’s United Church of Christ, 404 Ill.App.3d 505, 935 N.E.2d 1158, 1172 –
1173, 343 Ill.Dec. 930 (2d Dist. 2010).
2. Be sure that the appraiser has considered the latest plans for the improvement. The only
way to be sure of this is to have the appraiser and engineer review the plans together. Any
discrepancy between the plans used originally by the appraiser and those to be used at the quicktake hearing should be reflected in the appraiser’s updated appraisal.
3. Review the comparable sales the appraiser has considered. The court may want this type
of collateral evidence to illustrate that the witness’s opinion is credible.
4. Check the size of the whole parcel, both the part taken and the remainder, as depicted in
the engineer’s plans and exhibits. Be sure the appraiser uses the correct sizes in his or her quicktake testimony. Check these exhibits against the legal description used in pleadings.
5. If possible, The attorney should inspect the subject property with the engineer and
appraiser to familiarize himself or herself and the witnesses with the property. This inspection
will also ensure that no major changes have occurred to the property between the date of the
original appraisal and the date of valuation. If any changes have occurred, the appraiser should
consider them in an updated appraisal.
If exhibits are marked prior to hearing and if the attorney, engineer, and appraiser are all
prepared, the condemnor’s case at a quick-take hearing should take no more than 15 minutes
(assuming the owner does not contest the issue). While the appraiser must value the property
according to valuation rules, it is not necessary to spend a great deal of time in proving the
appraiser’s familiarity with the property or expertise or the basis for his or her opinion. The extent
of the evidence that should be presented at quick-take can vary according to the trial court, the
nature of the taking, or the position of the opposing attorney. However, if counsel has met with
the witnesses beforehand, counsel should be able to answer any inquiries by the trial court or the
opponent.
C. [6.22] Withdrawal of the Quick-Take Award
After entry of the necessary orders and deposit of preliminary compensation, the interested
parties are entitled to withdraw the preliminary compensation. 735 ILCS 30/20-5-20. A verified
petition should be prepared. The withdrawing party should give notice of the petition to withdraw
to all parties in the case and the state’s attorney of the venue county. The state’s attorney
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§6.23
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represents the treasurer of the county, who is usually holding the award. The trial court
determines who among the interested parties is entitled to the award. Since the award must be
distributed based on the owner’s direction and an attorney’s lien should not prevail against the
owner’s intention, all withdrawal petitions must be executed by the owner. Also, the mortgagee
has first rights to an award so the attorney should be sure the mortgagee agrees to the distribution.
The condemnor’s attorney has an interest in the withdrawal of quick-take funds since it is
possible that the final award may be less than the preliminary award. Id. The condemnor’s
attorney should seek language in any withdrawal order requiring a refund if the preliminary
amount is more than the final compensation. If there are several interested parties sharing in the
award, it is advisable for counsel to seek a determination of which party is responsible for
returning what part of any excess.
IV. DISCOVERY
A. [6.23] Supreme Court Rules Regarding Discovery
Supreme Court Rule 213(f) differentiates among a “lay witness,” who is giving only factual
information; an “independent expert witness,” who is rendering expert testimony but who is not a
party, a party’s current employee, or a retained witness; and a “controlled expert witness,” who is
rendering expert testimony and is a party, a party’s current employee, or the party’s retained
witness. The disclosure required is based on the category in which a witness may be found.
S.Ct. Rule 218 controls case management and requires that opinions be disclosed. This rule
also implies that discovery should close 60 days before trial.
S.Ct. Rule 201(b)(3) contains the provision regarding disclosure of consultants.
The rules also contain the following provisions:
1. No depositions will be over three hours unless by court order or stipulation. S.Ct. Rule
206(d).
2. No discovery depositions may be taken 21 or fewer days from the trial date. S.Ct. Rule
202.
3. In reviewing the deposition, the deponent may address only typographical errors; no
substantive changes will be allowed. S.Ct. Rule 207(a).
4. Only 30 interrogatories (including subparts) may be served unless by court order. S.Ct.
Rule 213(c).
5. All documents produced must be produced as kept in the ordinary course of business or
organized and labeled. S.Ct. Rule 214. (Note that production of new documents cannot be
required through a S.Ct. Rule 237 notice to produce at trial. All documents requested under S.Ct.
Rule 237 must have been requested previously in discovery.)
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6. Written discovery between parties should not be filed. S.Ct. Rule 201(m).
7. Production of documents in lieu of appearance at deposition is governed by S.Ct. Rule
204(a)(4). The requesting party can still take a deposition of a party or other deponent if needed
even after the documents are produced.
8. There is an ongoing duty to supplement responses to interrogatories and production
requests. S.Ct. Rules 213(i), 214.
9. There is a duty, if asked, to disclose all trial witnesses and their testimony. S.Ct. Rule
213(f).
A discovery deposition of a nonparty or a witness other than a controlled expert witness may
be used as evidence at trial if the witness is unavailable due to death or infirmity. S.Ct. Rule
212(a)(5).
PRACTICE POINTER

Unfortunately, S.Ct. Rule 213 has taken the place of S.Ct. Rule 220. The revisions to
S.Ct. Rule 213, effective July 1, 2002, may or may not assist the eminent domain
practitioner. It is well to remember that discovery is not a tactical game; rather, it “is
intended to be a mechanism for the ascertainment of truth, for the purpose of promoting
either a fair settlement or a fair trial.” Ostendorf v. International Harvester Co., 89 Ill.2d
273, 433 N.E.2d 253, 257, 60 Ill.Dec. 456 (1982). The purpose of the discovery rules
requiring timely disclosure of expert witnesses and their opinions is to avoid surprise and
to discourage tactical gamesmanship. Warrender v. Millsop, 304 Ill.App.3d 260, 710
N.E.2d 512, 519, 237 Ill.Dec. 882 (2d Dist. 1999).
In Department of Transportation, State of Illinois v. Crull, 294 Ill.App.3d 531, 690 N.E.2d
143, 228 Ill.Dec. 834 (4th Dist. 1998), the trial court was reversed for allowing the owner’s
appraiser to testify to the fair cash market value of the remainder after the taking. The owner’s
appraiser testified during his deposition to a value of the whole based on the income approach and
rendered an opinion of damage to the remainder based solely on costs to cure. The trial court
struck the opinion on damage to the remainder but found that in the interests of justice, the
defendant’s appraiser should be allowed to testify to his opinion of the fair cash market value of
the remainder before and after the taking. The appellate court reversed, holding that the trial court
abused its discretion in admitting the opinion on damage to the remainder based on a valuation
for the owners of the fair cash market value of the remainder after the taking because that opinion
was not previously disclosed pursuant to S.Ct. Rule 213. The appellate court stated that S.Ct.
Rule 213 is mandatory and must be followed by courts and counsel.
It appears that if the opponent fails to ask counsel’s opinion witness the appropriate questions
during a deposition, counsel has a duty to rectify by asking the questions himself or herself.
NOTE: Be advised to check the pocket parts and legislative updates for further revisions of
discovery rules.
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There is no right to open discovery after a reversal and remand unless the appellate court so
directs. In People ex rel. Department of Transportation v. Firstar Illinois, 365 Ill.App.3d 936,
851 N.E.2d 682, 303 Ill.Dec. 495 (2d Dist. 2006), the trial court found that the reopening of
discovery would prejudice the owner and would deprive the owner of just compensation in a
relatively expeditious manner. The appellate court agreed, stating that when a condemnation suit
continues for several years, the right to just compensation is infringed. The issue of a new trial
date is addressed in the Eminent Domain Act. See 735 ILCS 30/10-5-60.
B. [6.24] Interrogatories Under S.Ct. Rule 213
S.Ct. Rule 213(f) states:
(f) Identity and Testimony of Witnesses. Upon written interrogatory, a party must
furnish the identities and addresses of witnesses who will testify at trial and must
provide the following information:
(1) Lay Witnesses. A “lay witness” is a person giving only fact or lay opinion
testimony. For each lay witness, the party must identify the subjects on which the
witness will testify. An answer is sufficient if it gives reasonable notice of the
testimony, taking into account the limitations on the party’s knowledge of the facts
known by and opinions held by the witness.
(2) Independent Expert Witnesses. An “independent expert witness” is a person
giving expert testimony who is not the party, the party’s current employee, or the
party’s retained expert. For each independent expert witness, the party must
identify the subjects on which the witness will testify and the opinions the party
expects to elicit. An answer is sufficient if it gives reasonable notice of the testimony,
taking into account the limitations on the party’s knowledge of the facts known by
and opinions held by the witness.
(3) Controlled Expert Witnesses. A “controlled expert witness” is a person giving
expert testimony who is the party, the party’s current employee, or the party’s
retained expert. For each controlled expert witness, the party must identify: (i) the
subject matter on which the witness will testify; (ii) the conclusions and opinions of
the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any
reports prepared by the witness about the case.
(g) Limitation on Testimony and Freedom to Cross-Examine. The information
disclosed in answer to a Rule 213(f) interrogatory, or in a discovery deposition,
limits the testimony that can be given by a witness on direct examination at trial.
Information disclosed in a discovery deposition need not be later specifically
identified in a Rule 213(f) answer, but, upon objection at trial, the burden is on the
proponent of the witness to prove the information was provided in a Rule 213(f)
answer or in the discovery deposition. . . .
Without making disclosure under this rule, however, a cross-examining party can
elicit information, including opinions, from the witness. This freedom to cross-
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examine is subject to a restriction that applies in actions that involve multiple
parties and multiple representation. In such actions, the cross-examining party may
not elicit undisclosed information, including opinions, from the witness on an issue
on which its position is aligned with that of the party doing the direct examination.
Under S.Ct. Rule 213(i), a party has a continuing duty to supplement answers to
interrogatories as additional information becomes known to the party or counsel. Rule 213(k)
states that the rule is to be liberally construed.
At least one court has found that S.Ct. Rule 213 establishes more exacting standards for
disclosure than former S.Ct. Rule 220 did. Department of Transportation, State of Illinois v.
Crull, 294 Ill.App.3d 531, 690 N.E.2d 143, 228 Ill.Dec. 834 (4th Dist. 1998).
An attorney or trial court wanting to ensure complete discovery of witnesses in an eminent
domain proceeding and ensure against a last-minute continuance can do so by
1. making a motion requiring that each side disclose its witnesses by a date certain (S.Ct.
Rule 218);
2. propounding the interrogatories permitted by S.Ct. Rule 213;
3. filing, after review of the answers to the above-referenced interrogatories, a second notice
to produce any documents relating to the opinions disclosed in the answers; and
4. deposing all appropriate witnesses.
C. [6.25] Discovery in Addition to S.Ct. Rule 213
Rules for discovery apply in eminent domain as in other civil proceedings. City of
Bloomington v. Quinn, 114 Ill.App.2d 145, 252 N.E.2d 10, 14 (4th Dist. 1969).
Each side may serve a notice to produce on the other. Some items that may be requested,
depending on the issues in a particular case, include
1. all written appraisals (Department of Transportation v. Western National Bank of Cicero,
63 Ill.2d 179, 347 N.E.2d 161, 165 – 166 (1976));
2. project sales books (Department of Business & Economic Development of State of Illinois
ex rel. People v. Pioneer Trust & Savings Bank, 39 Ill.App.3d 8, 349 N.E.2d 467, 473 (2d
Dist. 1976));
3. all surveys of the whole property or part taken, parcel plats, and plans for the construction
of the improvements (Sanitary Dist. of Rockford v. Johnson, 343 Ill. 11, 174 N.E. 862,
864 (1931));
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4. all engineering studies on the property, including but not limited to floodplain studies,
reconstruction estimates, soil reports, soil borings, cost estimates for proposed
improvements, and environmental studies;
5. all land use studies or plans;
6. all drawings depicting a possible use of the subject property or the remainder;
7. all maps, photographs, or aerial photographs depicting the subject property or the
immediate area;
8. all ordinances, resolutions, or minutes of meetings generated by various public bodies
regarding acquisition of the subject property by the condemnor;
9. all contracts, deeds, closing statements, or transfer tax declaration sheets regarding
comparable sales or the purchase of the subject property;
10. all leases involving the subject property;
11. all traffic studies and parking studies; and
12. the title report involving the subject property.
Since the condemnor usually has at least one written appraisal and other information,
including photographs, plats, and engineering studies dealing with the subject property and the
pending public project, it is advisable for the owner’s attorney to file a notice to produce
immediately upon appearing in the case. These documents probably will give the owner’s
attorney a good starting point in understanding the plaintiff’s case. However, S.Ct. Rule
201(b)(3) exempts the work product of consulting experts from discovery unless there is a
showing of exceptional circumstances, which may limit the duty to turn over some material. It
should be remembered that there is an ongoing duty to supplement responses to a notice to
produce.
D. [6.26] Use of Interrogatories
Interrogatories in an eminent domain proceeding require a party to disclose the identity of its
witnesses and various information about their testimony. Interrogatories are helpful in
determining an opponent’s position on certain collateral facts that affect the opinions experts may
render. Some specific areas of inquiry include
1. for each lay witness who will testify at trial, the witness’s identity and address and the
subject on which the lay witness will testify;
2. for each independent expert witness who will testify at trial, the witness’s identity and
address, the subjects on which the witness will testify, and the opinions counsel is
expecting to elicit;
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3. for each controlled expert witness, the identity and address of the witness and the subject
matter on which the witness will testify;
4. for each controlled expert witness, any and all reports prepared by the witness about the
case;
5. for each controlled expert witness, all conclusions and opinions of the expert and the
bases therefore;
6. for each controlled expert witness, all qualifications of the expert;
7. the size of the whole property, the part taken, and the remainder;
8. any area contended to be in a floodplain;
9. the zoning of the subject property;
10. the comparable sales data on which counsel’s opponent relies;
11. whether the property has been offered for sale in the last seven years;
12. whether the owner acquired the property within the last seven years;
13. whether an attempt has been made to rezone the property within the last five years; and
14. whether the owner has petitioned to have real estate taxes lowered in the last five years.
E. [6.27] Deposition of Valuation Witnesses
The heart of an eminent domain case is the testimony of the valuation witnesses. If an
attorney wants as full a disclosure as possible of the opponent’s case and wants to limit testimony
at trial to the fair scope of that presented during discovery, then a deposition should be taken of
each valuation witness. It is best to review the expert’s file before the depositions. Mutual
exchange of each side’s experts’ files prior to deposition is advisable. Some general areas of
inquiry should include
1. a general personal background, including general education, present employment, and
employment history;
2. a general summary of expertise (i.e., memberships in professional organizations, real
estate courses taken, practical experience, and training);
3. an identification of specific areas of expertise or experience that may relate to the issues
in the case (e.g., if the property is a farm, how many farms the witness has appraised or
sold in the last year);
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ILLINOIS EMINENT DOMAIN PRACTICE
4. an identification of experience in the area of the subject property (such as appraisals in
the area or estate sales or properties developed);
5. a listing of the steps taken to appraise the subject property;
6. a description of the subject property;
7. an opinion of highest and best use;
8. an identification of the factors considered in arriving at the opinion of the highest and
best use;
9. an opinion of fair cash market value of the property;
10. an identification of the factors considered in arriving at the opinion of fair cash market
value;
11. an identification of the comparable sales considered in arriving at the opinion of value;
12. an opinion of the amount of damage to the remainder;
13. an identification of the factors considered in arriving at the opinion of the damage to the
remainder;
14. an identification of other opinions, if any, the witness has regarding this case; and
15. an identification of other expert opinions relied on by the witness.
The above list is a bare-bones outline of general areas of inquiry of valuation witnesses.
Specific follow-up questions must be developed in the area of issues contested at trial. Also,
answers to interrogatories propounded under S.Ct. Rule 213 can provide a further outline of
questions.
PRACTICE POINTER

An attorney should distinguish between cross-examination at trial and a deposition. A
deposition is to find out your opponent’s case. Cross-examination is to find weaknesses
before the jury. The author recommends consulting with your experts and getting your
experts’ input on specific inquiries. You can choose to use a deposition for a practice
cross, but then you give up the best advantage of cross — surprise.
F. [6.28] Discovery Outline
A checklist of “steps” to take regarding discovery includes
1. a notice to produce;
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2. the interrogatories (limited to 30);
3. a motion under S.Ct. Rule 218 to schedule disclosure of witnesses;
4. the depositions of all appropriate witnesses with production of the files; and
5. the subpoena of documents and witnesses.
In addition, other tools for discovering information that may be especially helpful when a
traverse has been filed include
1. any information obtained pursuant to the Freedom of Information Act (FOIA), 5 ILCS
140/1, et seq. (FOIA may be utilized by an owner before or after filing a complaint to
condemn in order to ascertain whether a traverse might be filed. Requests under FOIA
must comply with discovery rules if filed after a condemnation suit.);
2. a bill of particulars pursuant to 735 ILCS 5/2-607; and
3. requests to admit pursuant to S.Ct. Rule 216.
V. PRETRIAL MOTIONS AND ISSUES
A. [6.29] Issues of Title
The only issue for the jury in an eminent domain proceeding is the amount of just
compensation. All other questions are to be determined by the court. Sanitary Dist. of Rockford v.
Johnson, 343 Ill. 11, 174 N.E. 862, 864 (1931). Ordinarily, the trial court determines the right of
each interested party to just compensation after final judgment. 735 ILCS 30/10-5-70(a). In most
properties, there are several parties with interests in the real estate. If these parties wish, it is
proper to have the trial court determine their competing rights before trial. City of Chicago v.
Gage, 268 Ill. 232, 109 N.E. 28, 31 (1915).
B. [6.30] New Valuation Date
Under the Eminent Domain Act, an owner may be entitled to a new valuation date if the trial
of the matter does not occur within two years of the complaint for condemnation or if there is a
quick-take within two years of the complaint. The decision is at the court’s discretion. See 735
ILCS 30/10-5-60. The Illinois Constitution requires a new valuation date if there has been a
material increase in value. See Forest Preserve District of DuPage County v. First National Bank
of Franklin Park, 2011 IL 110759, 961 N.E.2d 775, 356 Ill.Dec. 386.
C. [6.31] Leasehold Interest
If there is a full taking, a lessee can have the value of its leasehold determined separately by
the jury. This right is perfected by filing a petition demanding a separate valuation. Alternatively,
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the lessee may wait until final compensation is determined and seek a portion of the final award
as determined by the trial court. Department of Public Works & Buildings v. Bohne, 415 Ill. 253,
113 N.E.2d 319 (1953); 735 ILCS 30/10-5-70(a).
If the lessee seeks a separate valuation by the jury, the petitioner has the burden of proof as to
the value of the leasehold. When there is a partial taking, the tenant has the burden of proving
damage to the leasehold. Central Illinois Electric & Gas Co. v. Scully, 17 Ill.2d 348, 161 N.E.2d
304, 308 (1959). One court has held that the process should be bifurcated, with the jury first
determining the fair cash market value of the property and then subsequently determining each
party’s interest in the award. Department of Transportation v. White, 264 Ill.App.3d 145, 636
N.E.2d 1204, 201 Ill.Dec. 772 (5th Dist. 1994).
D. [6.32] Damage to the Remainder
A cross-petition is the proper method for an owner to seek compensation for damage to land
not taken or described in the petition to condemn (Johnson v. Freeport & Mississippi River Ry.,
111 Ill. 413, 416, 417 (1884)), and this is the proper procedure when a purchaser has received an
assignment of the just compensation (Department of Transportation of State of Illinois v.
Heritage-Pullman Bank & Trust Co., 254 Ill.App.3d 823, 627 N.E.2d 191, 194 Ill.Dec. 75 (1st
Dist. 1993)).
A cross-petition should include a description of the land alleged to be damaged and
allegations of common ownership with the part taken and damage to the land not taken. Central
Illinois Public Service Co. v. Rider, 12 Ill.2d 326, 146 N.E.2d 48 (1957). There is also a
requirement that the cross-petition include an allegation of unity of use. Department of
Conservation of State of Illinois v. Franzen, 43 Ill.App.3d 374, 356 N.E.2d 1245, 1251, 1 Ill.Dec.
912 (2d Dist. 1976). The unity of title and use and the contiguity needed to sustain a crosspetition for damage to the remainder are determined at the time the complaint to condemn is filed
and not when the judgment is entered. Department of Transportation v. Chicago Title & Trust
Co., 303 Ill.App.3d 484, 707 N.E.2d 637, 236 Ill.Dec. 510 (1st Dist. 1999). See also Illinois
Department of Natural Resources v. Pedigo, 348 Ill.App.3d 1044, 811 N.E.2d 761, 285 Ill.Dec.
274 (4th Dist. 2004) (Department of Natural Resources sought to condemn 0.147 acres for
bicycle trail). In Pedigo, the part taken by the Department of Natural Resources connected the
defendants’ sod farm and landscaping business to Lake Springfield. In times of drought, water
from the lake was used in the sod and landscaping business. The cross-petition filed by the
defendants alleged damages for 58.89 acres. The Department of Natural Resources claimed that
the whole consisted of 0.9 acres. The Department of Natural Resources moved for a judicial
declaration of whole property. The trial court found that the whole property was 0.9 acres and
was reversed. The appellate court found that to recover damages to the remainder, the defendants
must also show that the taking would effectively damage or destroy the principal use for which
the remainder of the property was designed. In this case, the water was needed for the sod farm
and landscaping business.
If the petition to condemn does not describe the entire property, a cross-petition is necessary
to vest the court with jurisdiction on the issue of damage. Rider, supra.
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The trial court has discretion to allow the filing of a cross-petition on the day of trial,
particularly if the plaintiff will not be unfairly surprised, as in a case in which damages are found
at the quick-take proceeding. Id.; Department of Public Works & Buildings of State of Illinois v.
Hall, 30 Ill.App.3d 831, 333 N.E.2d 701, 705 (2d Dist. 1975).
Conversely, the trial court may deny a late filing of a cross-petition if it appears that the trial
will be delayed. Lake County Forest Preserve District v. Continental Illinois National Bank &
Trust Company of Chicago, 35 Ill.App.3d 942, 343 N.E.2d 6, 12 (2d Dist. 1976); Forest Preserve
District of Cook County v. Krol, 12 Ill.2d 139, 145 N.E.2d 599, 605 (1957); Heritage-Pullman
Bank, supra.
E. [6.33] Bill of Particulars
If a cross-petition alleging damage to the remainder is filed, the owner may be required, at the
discretion of the trial court, to answer a demand for a bill of particulars seeking the amount of
damages claimed and the elements of such damage. 735 ILCS 5/2-607; City of Chicago v.
Callender, 396 Ill. 371, 71 N.E.2d 643, 645 – 646 (1974).
A bill of particulars is useful in clarifying pleadings and can eliminate questions as to what
elements of damage are before the jury. Department of Transportation of State of Illinois v.
Association of Franciscan Fathers of State of Illinois, 93 Ill.App.3d 1141, 418 N.E.2d 36, 40, 49
Ill.Dec. 392 (2d Dist. 1981).
F. [6.34] Inspection of Real Estate; Sample Agreed Protection Order
The condemnor has a right to make an inspection of the subject property for the purpose of
obtaining information, including appraisals, surveys, and soil borings. S.Ct. Rule 214.
If the condemning body will be performing the test, it is in the best interests of both the
condemnor and condemnee to enter into a protective order setting forth liability, insurance, and
disclosure of information issues. Following is an example of a protective order:
[Caption]
AGREED PROTECTIVE ORDER
THIS CAUSE COMING ON to be heard on Plaintiff’s motion for inspection of
property and the court being advised of the premises,
IT IS HEREBY ORDERED:
1. Defendant shall allow access to the property by Plaintiff’s contractors or
subcontractors, including Plaintiff’s engineer, for the purpose of conducting certain
subsurface tests. The tests to be conducted shall consist of borings and any temporary
monitoring well(s) to be placed at locations previously disclosed to Defendant.
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2. Plaintiff and its contractors and subcontractors recognize that the activities
authorized herein will occur at an operating business. Any contractor, subcontractor, or
representative of Plaintiff present at the property shall comply with any workplace safety
requirements of Defendant and shall not unreasonably interfere with the operations or
customers of Defendant’s business.
3. Plaintiff and its contractors and subcontractors shall secure in their own names and
at their own cost all necessary permits and authorizations in order to undertake the abovementioned activities and tests. Plaintiff and its contractors and subcontractors shall inspect
the property and the immediate surrounding area prior to the start of any activities
hereunder to ensure that those activities will not damage surrounding structures, utility
lines, or any other subsurface lines or cables.
4. Upon completion of the access provided for herein, Plaintiff and its contractors and
subcontractors shall restore the property, normal wear and tear excepted, to the condition
existing prior to the entry on the property authorized herein, including the removal of the
temporary monitoring well. Plaintiff and its contractors and subcontractors shall be solely
responsible for the proper removal from the property of any and all equipment and any
materials generated or produced as the result of the sampling authorized herein, including
drill cuttings, water or groundwater, and sampling equipment. Plaintiff, its contractors, and
its subcontractors shall not treat, dispose of, or release any such materials on the property.
5. Plaintiff shall require any contractor or subcontractor entering onto the property
pursuant hereto to procure and maintain, at its sole cost and expense, a policy or policies of
insurance as follows: workers’ compensation at statutory coverage; comprehensive form
(including independent contractor, contractual, and automobile liability) with coverage of
at least [required amount of coverage] per event and combined limit; and insurance providing
for damage to the property caused by the contractor or subcontractor with coverage of at
least [required amount of coverage] per event and combined limit. The contractor or
subcontractor shall provide Plaintiff and Defendant with certificates of insurance indicating
that the above coverages have been obtained, with endorsements naming Plaintiff and
Defendant as additional insureds.
6. Plaintiff shall be solely responsible for the cost of the sampling activities to be
conducted by its contractors and subcontractors. Plaintiff shall keep the property free and
clear from any and all liens and encumbrances arising out of any work performed,
materials furnished, or obligations incurred by or for Plaintiff.
7. The results of any tests or analyses performed by Plaintiff or its agents, contractors,
or subcontractors on the subject property or samples from the subject property pursuant to
this Agreed Protective Order, including any and all reports written or oral, shall be and
remain the property of Plaintiff. Plaintiff shall supply any such reports to Defendant.
8. In the event any person, other than those previously disclosed to Defendant, shall
seek to obtain such information from Plaintiff or its employees, agents, contractors, or
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§6.34
subcontractors, whether by way of a Freedom of Information Act request or an
administrative or judicial demand or order, Plaintiff shall immediately provide written
notice to Defendant.
9. If counsel or engineer for any party intends to be present on the property at any of
the testing provided for under Paragraph 1 hereof, counsel for that party shall give every
other party’s counsel [hours’ notice required] hours’ prior notice. If Defendant intends to
perform split sampling, it shall do so at its own expense. Plaintiff shall provide a copy of this
Agreed Protective Order to every person who will have access to the property pursuant
hereto, and all such persons shall by receipt of this Agreed Protective Order and entry upon
the property have consented to comply with the terms hereof.
10. Any party may, by motion, request an order of the Court seeking enforcement of the
terms of this Agreed Protective Order.
DATED: ______________
ENTERED:
____________________________________
Judge
AGREED TO:
_______________________________
Defendant
By: ____________________________
Attorney for Defendant
_______________________________
Plaintiff
By: ____________________________
Attorney for Plaintiff
PRACTICE POINTER

After doing a complete discovery job, it is then your responsibility to give the
information obtained to your experts in a form that can help your experts (1) to prepare
for deposition and cross and (2) to prepare rebuttal opinions. While you should not dilute
information, neither should you inundate the expert with tons of paper. Analyze the
information, filter out makeweight discovery, and give the heart of your opponent’s case
to your experts. You, as the attorney, are responsible for preparing your experts for
deposition and trial. You must be realistic as to what the expert will do and edit discovery
for the witness. You have the right to subpoena, take depositions, and propound
interrogatories — your experts do not have these rights. Use this information to prepare
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§6.35
ILLINOIS EMINENT DOMAIN PRACTICE
your witness completely for both deposition and trial. Even the most experienced
witnesses do not know eminent domain valuation rules as well as a knowledgeable
attorney. Be sure to filter all opinions before deposition for possible violations of
valuation law. Discovery should help you do all of the above.
G. [6.35] Motion in Limine
A motion in limine seeks a ruling by the trial court on an evidentiary question prior to
presentation of that evidence at trial. No statute or Supreme Court Rule provides for its use, but it
has been approved by reviewing courts. Department of Public Works & Buildings of State of
Illinois v. Roehrig, 45 Ill.App.3d 189, 359 N.E.2d 752, 3 Ill.Dec. 893 (5th Dist. 1976). Although
one of the purposes of a motion in limine is to relieve the attorney from having to object to
evidence in the presence of the jury, the attorney still must object to any disputed evidence
introduced at trial — even if the court has denied a motion in limine — in order to preserve the
issue. Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co., 163 Ill.2d
498, 645 N.E.2d 896, 206 Ill.Dec. 644 (1994). A motion in limine can also prevent an opponent
from putting prejudicial evidence before the jury even if a subsequent objection is sustained.
Some general areas in which a motion in limine may be helpful include the following:
Admission of comparable sales or the purchase price of the subject property. In many
eminent domain trials, admission or denial of comparable sales or the purchase price of the
subject property is the key to the case. If the trial court rules on the admissibility of sales evidence
in advance of the trial, it may shorten the time for the jury trial and give each side a more realistic
settlement position.
Valuation problems. In many eminent domain proceedings, issues arise as to the
admissibility of evidence regarding the valuation of the property, expert testimony, or damage to
the remainder. A motion in limine can raise these issues prior to trial. See Department of Public
Works & Buildings of State of Illinois ex rel. People v. Sun Oil Co., 66 Ill.App.3d 64, 383 N.E.2d
634, 22 Ill.Dec. 826 (5th Dist. 1978); City of Rock Island, Illinois v. Moline National Bank, 54
Ill.App.3d 853, 368 N.E.2d 1113, 11 Ill.Dec. 505 (3d Dist. 1977); Department of Public Works &
Buildings of State of Illinois v. Exchange National Bank, 31 Ill.App.3d 88, 334 N.E.2d 810 (2d
Dist. 1975).
Whether there is sufficient evidence to allow the issue of reasonable probability of
rezoning, annexation, or access to go to the jury. This issue must be ruled on by the trial court
in camera. Department of Transportation v. Western National Bank of Cicero, 63 Ill.2d 179, 347
N.E.2d 161, 164 (1976). A hearing on this issue prior to trial can be helpful.
H. [6.36] Case Management Conference
Case management or pretrial conferences are discussed in S.Ct. Rule 218, which
contemplates that more than one case management conference may be held. Disclosure of
witnesses and completion of discovery are contemplated at least 60 days before trial.
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Most counties have forms for case management orders and required dates for exchanging
reports, answering written discovery, completing depositions, and setting pretrial and settlement
conferences. Some forms provide that the parties may waive the 60-day disclosure requirement
before trial. If the parties agree to entry of a final judgment order containing the stipulation of the
parties, the provisions must be clearly set forth. See Timothy Christian Schools v. Village of
Western Springs, 285 Ill.App.3d 949, 675 N.E.2d 168, 221 Ill.Dec. 261 (1st Dist. 1996). The
parties cannot confer subject-matter jurisdiction on the court. See City of Marseilles v. Radke, 287
Ill.App.3d 757, 679 N.E.2d 125, 223 Ill.Dec. 181 (3d Dist. 1997). If the state breaches a
settlement agreement, the owner’s remedy is in the circuit court and not the Court of Claims. See
Vogt v. Bartelsmeyer, 264 Ill.App.3d 165, 636 N.E.2d 1185, 201 Ill.Dec. 753 (5th Dist. 1994).
In Southwestern Illinois Development Authority v. Al-Muhajirum, 348 Ill.App.3d 398, 809
N.E.2d 730, 284 Ill.Dec. 164 (5th Dist. 2004), the trial court was affirmed for denying the
owners’ motion to continue trial for the fifth time based on the judges’ inherent powers to
administer their dockets in a manner designed to ensure the efficient and economic disposition of
cases. There was sufficient time for the owners to prepare for trial. Although the plaintiff had
taken the property by quick-take and the improvement had been built, the plaintiff was prejudiced
by a continuance because it had to pay attorneys’ fees.
I. [6.37] Offers To Settle Before Trial
Under the Eminent Domain Act, an owner whose property is being acquired for elimination
of blight may serve a written offer to settle a case after discovery closes under an S.Ct. Rule 218
order up to 14 days before trial. 735 ILCS 30/10-5-110. The condemnor then has 10 days to
accept the offer. If no acceptance is received after 10 days, the offer is considered withdrawn. If
the offer is accepted, the condemnor must serve written notice of acceptance within the 10 days.
The offer and acceptance, along with proof of notice, may then be filed with the court by either of
the parties and a final judgment order is entered in accordance. If the condemnor does not accept
the offer and the jury returns a verdict equal to or in excess of the owner’s offer, the condemnor
must pay costs — including all expert witness fees incurred between the date of the offer and the
conclusion of the trial — and attorneys’ fees based on the net benefit to the owner.
It appears that the best time to serve an offer would be soon after discovery closes so that all
the opinions are disclosed and a suitable offer can be made after consultation with the client. If
the offer is not accepted, the fees incurred in trial preparation would be recoverable.
J. [6.38] Pretrial Appeals
If a question of law arises as to whether an expert is using a proper valuation method, S.Ct.
Rule 308(a) allows the trial court to certify a question for appellate review. In Department of
Transportation, State of Illinois v. Kelley, 352 Ill.App.3d 278, 815 N.E.2d 1214, 287 Ill.Dec. 411
(3d Dist. 2004), the Department of Transportation took 1 acre from a 289-acre, mostly vacant
tract. The owner’s valuation witnesses valued this 1 acre as commercial, based on 80 acres of the
289-acre whole having a highest and best use of commercial. The plaintiff moved to bar this
testimony as a violation of the unit rule. The trial court allowed the testimony, but the appellate
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§6.38
ILLINOIS EMINENT DOMAIN PRACTICE
court reversed, holding that the unit rule prohibited this testimony. A specially concurring opinion
was filed by Justices Holdridge and Schmidt and stated in part:
The purpose to be accomplished in condemnation proceeding is to provide “just
compensation” to the landowner as determined by the fair cash market value of the
property at its highest and best use. City of Chicago v. Anthony, 136 Ill.2d 169, [554
N.E.2d 1381, 144 Ill.Dec. 93] (1990). The “unit rule” almost never achieves that
purpose. Simply put, the “unit rule” ignores realities of land valuation and should
give way. The approach articulated in HP/Meachum [Department of Transportation v.
HP/Meachum Land Limited Partnership, 245 Ill.App.3d 252, 614 N.E.2d 485, 185
Ill.Dec. 351 (2d Dist. 1993)] is not an extension of the unit rule, but an exception that
should be allowed to swallow up the rule. Our supreme court should revisit the
issue. 815 N.E.2d at 1219.
It is beyond the scope of this chapter to analyze the unit rule.
Current Illinois law limits judicial review of the admissibility of expert testimony to whether
the expert is relying on a commonly accepted technique in that field of expertise. See Donaldson
v. Central Illinois Public Service Co., 199 Ill.2d 63, 767 N.E.2d 314, 262 Ill.Dec. 854 (2002).
There are, however, a number of Illinois court decisions, rendered decades ago, that impede
valuation experts from testifying to established valuation techniques. A practitioner could use
S.Ct. Rule 308(a) as a means to raise such issues and attempt to bring Illinois law in line with
expert valuation techniques. Using Rule 308(a) would allow appellate review before the expense,
risk, and time of a jury trial.
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7
Valuation of Property in
Eminent Domain
RICHARD A. REDMOND
CHRISTOPHER J. MURDOCH
Holland & Knight LLP
Chicago
®
©COPYRIGHT 2016 BY IICLE .
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ILLINOIS EMINENT DOMAIN PRACTICE
I. Introduction
A. [7.1] Scope of Chapter and Importance of Valuation Rules
B. [7.2] Historical Background
C. [7.3] Eminent Domain Act
1. [7.4] Background of Illinois’ Current Eminent Domain Act
2. [7.5] Effective Date and Exceptions
D. [7.6] Illinois Pattern Jury Instructions and Uniform Eminent Domain Act
E. [7.7] Appellate Review
II. [7.8] Use of Experts To Prove Valuation Issues
A.
B.
C.
D.
[7.9]
[7.10]
[7.11]
[7.12]
Appraisers as Expert Witnesses
Bases of Appraisers’ Opinions
Facts and Data Reasonably Relied On and Admissibility
Gatekeeper Role of Trial Judge
III. Valuation in Complete Acquisitions
A. Just Compensation
1. [7.13] Just Compensation as Fair Cash Market Value
2. [7.14] Date of Valuation
3. Highest and Best Use
a. [7.15] Definitions
b. [7.16] Reasonable Probability of Rezoning
4. [7.17] Unit Rule
a. [7.18] Partial Takings
b. [7.19] Unit Rule and Expert Cross-Examination
B. Other Aspects of Just Compensation
1. [7.20] Interest as Just Compensation
2. [7.21] Attorneys’ Fees and Litigation Costs
3. [7.22] Relocation Assistance
C. Fair Cash Market Value
1. [7.23] Determining Fair Cash Market Value
a. [7.24] Market or Comparable-Sales Approach
b. [7.25] Cost Approach
c. [7.26] Income Approach
2. [7.27] Elements Excluded from Fair Cash Market Value
a. [7.28] Appreciation or Depreciation Caused by Project
b. [7.29] Illegal Use
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VALUATION OF PROPERTY IN EMINENT DOMAIN
3.
4.
5.
6.
7.
c. [7.30] Business Done on Property
d. [7.31] Cost of Moving
e. [7.32] Taxation
f. [7.33] Replacement Costs
g. [7.34] Existing Right-of-Way
[7.35] Environmental Issues
[7.36] Minerals, Timber, and Farm Property
[7.37] Subdivision Property
[7.38] Billboards
[7.39] Special-Use Property
IV. Valuation in Partial Acquisitions
A.
B.
C.
D.
E.
F.
[7.40] General Principles
[7.41] Cross-Petition
[7.42] Valuation of Part Taken
[7.43] Stipulations
[7.44] Definition of “Remainder Property”
[7.45] Proper Elements of Damages
1. [7.46] Cost To Cure
2. [7.47] Reduction in Size
3. [7.48] Noise
4. [7.49] Unsightliness
5. [7.50] Access
G. [7.51] Improper Elements of Damage
H. [7.52] Benefits
V. Valuation in Easement Acquisitions
A. [7.53] Permanent Easement
B. [7.54] Temporary Easement
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§7.1
ILLINOIS EMINENT DOMAIN PRACTICE
I. INTRODUCTION
A. [7.1] Scope of Chapter and Importance of Valuation Rule
This chapter examines the rules governing the valuation of property acquired in proceedings
under the Eminent Domain Act (EDA), 735 ILCS 30/1-1-1, et seq. Because almost all
acquisitions involve real estate, this chapter discusses real estate valuation only. However, since
the word “property” in Article I, §15, of the Illinois Constitution, “includes every interest anyone
may have in any and everything which is the subject of ownership” (Morton Grove Park District
v. American National Bank & Trust Co., 78 Ill.2d 353, 399 N.E.2d 1295, 1299, 35 Ill.Dec. 767
(1980)), the power of eminent domain extends to all types of property. See also Demos v. Pappas,
2011 IL App (1st) 100829, 956 N.E.2d 533, 353 Ill.Dec. 671. In an acquisition of property other
than real property, many of these same principles will apply.
While Article I, §15, of the Illinois Constitution provides that “[p]rivate property shall not be
taken or damaged for public use without just compensation,” it does not provide any guidelines
for determining the actual amount of compensation to be paid for the property. The rules for
valuing property in an eminent domain proceeding have been developed through hundreds of
court decisions, a limited number of statutory provisions, and application of the Illinois Rules of
Evidence. These rules determine how the property will be valued and, based on this valuation,
how much the condemnor must pay and how much the owner may receive. Although the jury
determines, as a question of fact, the compensation to be paid, the judge determines, as a question
of law, the principles governing valuation and, as a result of this determination, the type of
evidence that may be presented to the trier of fact. Sanitary Dist. of Rockford v. Johnson, 343 Ill.
11, 174 N.E. 862 (1931).
On a theoretical level, the principles of valuation provide the means for socializing the cost of
public projects by requiring the public, in the form of the condemnor, to pay those property
owners who stand in the path of the project. The importance of these principles is expressed in a
quotation from Olson v. United States, 292 U.S. 246, 78 L.Ed. 1236, 54 S.Ct. 704, 708 (1934):
The judicial ascertainment of the amount that shall be paid to the owner of private
property taken for public use through exertion of the sovereign power of eminent
domain is always a matter of importance for, as said in Monongahela Navigation Co.
v. United States, 148 U.S. 312, 324, 13 S.Ct. 622, 625, 37 L.Ed. 463: “In any society
the fullness and sufficiency of the securities which surround the individual in the use
and enjoyment of his property constitute one of the most certain tests of the
character and value of the government.”
On a practical level, an attorney who represents either the condemnor or the owner must
know the valuation rules and advise any experts who will testify of the applicable rules. If a
witness does not testify in accordance with these rules, e.g., if the witness considers improper
elements of damage to the remainder, the testimony may be stricken and the valuation opinion
excluded. Illinois Power & Light Corp. v. Talbott, 321 Ill. 538, 152 N.E. 486 (1926); City of
Chicago v. Central National Bank in Chicago, 5 Ill.2d 164, 125 N.E.2d 94 (1955).
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VALUATION OF PROPERTY IN EMINENT DOMAIN
§7.2
In both Board of Trustees of University of Illinois v. Shapiro, 343 Ill.App.3d 943, 799 N.E.2d
383, 278 Ill.Dec. 665 (1st Dist. 2003), and Southwestern Illinois Development Authority v. AlMuhajirum, 348 Ill.App.3d 398, 809 N.E.2d 730, 284 Ill.Dec. 164 (5th Dist. 2004), the appellate
court affirmed the trial court’s decision to bar the testimony of appraisers who had failed to
follow the proper rules of valuation. Shapiro involved the improper use of comparable sales and
an improper highest and best use analysis. Al-Muhajirum involved a failure to appraise the
subject property as it existed on the valuation date.
Moreover, the principles governing valuation of property in eminent domain proceedings are
unique and not necessarily the same as the principles used in valuing property for other purposes.
For example, the same property may be valued differently for inheritance tax purposes than for
condemnation purposes (Department of Transportation of State of Illinois v. Prairie Travler, Inc.,
52 Ill.App.3d 799, 368 N.E.2d 144, 10 Ill.Dec. 658 (4th Dist. 1977)), or it may be valued
differently for real estate tax purposes than it would be for condemnation purposes (City of
Chicago v. Harrison-Halsted Building Corp., 11 Ill.2d 431, 143 N.E.2d 40 (1957)).
The careful lawyer should determine the exact nature of the property being acquired. For
example, in Department of Transportation ex rel. People v. Farnsworth, 273 Ill.App.3d 631, 653
N.E.2d 423, 210 Ill.Dec. 518 (3d Dist. 1995), the Illinois Department of Transportation (IDOT)
took fee simple title to a pile of waste material from mining operations rather than fee simple title
to the land itself. The appellate court held that the unit rule (see §7.17 below) did not apply under
these precise circumstances because waste material, not land, was being acquired.
The actual evidence used to establish value depends on the circumstances of each case. The
parties may introduce evidence describing the property itself, such as its size, location, and
zoning; evidence of sales of comparable properties; and evidence of experts, such as appraisers,
brokers, and engineers. The procedure for presenting this evidence is discussed elsewhere in this
handbook. See especially Chapter 8.
Chapter 12 of this handbook discusses the valuation problems encountered when dealing with
the application of environmental laws to real estate. With the advent of intensive environmental
regulation of the use of real estate and the complexity of this body of law, a separate discussion of
the unique issues posed by contaminated property is warranted.
B. [7.2] Historical Background
The contemporary legal doctrine that requires a condemnor to compensate the owner for
taking or damaging property evolved over several centuries. Prior to 1215, the English king
maintained an absolute right to seize property without either specific legal authority or payment
of compensation. However, as part of the grant of rights given to the English nobles at
Runnymede in 1215, King John agreed, in Article 39 of the Magna Carta (Article 29 of the 1225
version confirmed by Henry III), that “[n]o freeman shall be taken or [and] imprisoned or
disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except
by the lawful judgment of his peers or [and] by the law of the land.” William Sharp McKechnie,
MAGNA CARTA: A COMMENTARY ON THE GREAT CHARTER OF KING JOHN, Ch. 39,
p. 375 (2d ed. 1914).
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§7.2
ILLINOIS EMINENT DOMAIN PRACTICE
An early explanation of the role of compensation in eminent domain was given by Hugo
Grotius, a Dutch jurist who studied Roman civil law. In 1625, he wrote:
A king may two ways deprive his subjects of their right, either by way of
punishment or by virtue of the eminent domain power. But if he does it the last way,
it must be for some public advantage, and then the subject ought to receive, if
possible, a just satisfaction for the loss he suffers, out of the common stock. Hugo
Grotius, DE JURE BELLE AC PACIS, Ch. XIV, §VII (1625).
In his commentary on the common law of England, written and published between 1765 and
1769, William Blackstone also recognized an obligation to pay for public acquisitions:
If a new road, for instance, were to be made through the grounds of a private
person, it might perhaps be extensively beneficial to the public; but the law permits
no man, or set of men, to do this without consent of the owner of the land. In vain
may it be urged, that the good of the individual ought to yield to that of the
community; for it would be dangerous to allow any private man, or even any public
tribunal, to be the judge of this common good, and to decide whether it be expedient
or no. Besides, the public good is in nothing more essentially interested, than in the
protection of every individual’s private rights, as modeled by the municipal law. In
this, and similar cases the legislature alone can, and indeed frequently does,
interpose and compel the individual to acquiesce. But how does it interpose and
compel? Not by absolutely stripping the subject of his property in an arbitrary
manner; but by giving him a full indemnification and equivalent for the injury
thereby sustained. The public is now considered as an individual, treating with an
individual for an exchange. All that the legislature does is to oblige the owner to
alienate his possessions for a reasonable price; and even this is an exertion of power,
which the legislature indulges with caution, and which nothing but the legislature
can perform. 1 William Blackstone, COMMENTARIES ON THE LAWS OF
ENGLAND, p. 135 (1979).
Blackstone’s strong influence on the founding fathers is reflected in that part of the Fifth
Amendment to the United States Constitution that states “nor shall private property be taken for
public use, without just compensation.”
Through most of the 19th century, however, the United States Supreme Court refused to
apply this section of the Bill of Rights to state, as opposed to federal, interference with private
property. Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 8 L.Ed. 672 (1833); West River
Bridge Co. v. Dix, 47 U.S. (6 How.) 507, 12 L.Ed. 535 (1848). In 1897, the Supreme Court
reversed its position and held that taking private property for public use without payment of just
compensation violates the Fourteenth Amendment’s prohibition against taking property without
due process of law. Since the Fourteenth Amendment’s guarantees apply to state action, the
Supreme Court effectively made the Fifth Amendment’s right to compensation applicable to state
proceedings. Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 41 L.Ed. 979, 17 S.Ct.
581 (1897). The Illinois Supreme Court has acknowledged the Fifth Amendment’s applicability
to Illinois condemnation proceedings. Morton Grove Park District v. American National Bank &
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VALUATION OF PROPERTY IN EMINENT DOMAIN
§7.2
Trust Co., 78 Ill.2d 353, 399 N.E.2d 1295, 35 Ill.Dec. 767 (1980); Davis v. Brown, 221 Ill.2d
435, 851 N.E.2d 1198, 303 Ill.Dec. 773 (2006).
In Illinois, the Constitution of 1848 provided: “nor shall any man’s property be taken or
applied to public use without the consent of his representatives in the general assembly, nor
without just compensation being made to him.” ILL.CONST. (1848) art. XIII, §11. The Illinois
Supreme Court construed this provision to require compensation only when there had been an
actual physical injury to the property. If no physical invasion had occurred, the Supreme Court
ruled, no taking had occurred and therefore no compensation need be paid. Nevins v. City of
Peoria, 41 Ill. 502 (1866).
The 1870 Illinois Constitution enlarged the right of recovery and gave greater security to
private property rights by adding the words “or damaged” to the condemnation article. The
revised article read: “Private property shall not be taken or damaged for public use without just
compensation.” ILL.CONST. (1870) art. II, §13. Following the passage of the 1870 Constitution,
the state legislature enacted the Eminent Domain Act of 1872, Laws 1871 – 1872, p. 402, §1
(formerly Ill.Rev.Stat., c. 47, ¶1), which contained the same language. The Illinois Supreme
Court then interpreted the change in wording in Rigney v. City of Chicago, 102 Ill. 64, 75 (1881),
by stating that the addition of the words “or damaged” constituted a significant change in the law
that granted new rights to property owners. While the new constitutional provision would not
require compensation in all cases of injury to property, it would warrant recovery if
there has been some direct physical disturbance of a right, either public or private,
which the plaintiff enjoys in connection with his property, and which gives to it an
additional value, and that by reason of such disturbance he has sustained a special
damage with respect to his property in excess of that sustained by the public
generally. 102 Ill. at 81.
Although Rigney was a four-three decision, the Supreme Court reaffirmed its holding in Chicago
& Western Indiana R.R. v. Ayres, 106 Ill. 511 (1883), and the case has been cited extensively ever
since.
In 1970, Illinois adopted a new Constitution. Despite a recommendation from the Bill of
Rights Committee to change the 1870 constitutional provision by adding the words “or the use
thereof impaired” after the word “damaged,” and by adding the words “to the full extent of the
loss” after the word “compensation,” the delegates to the Constitutional Convention decided not
to change this part of the 1870 Constitution. Article I, §15, of the Illinois Constitution states:
“Private property shall not be taken or damaged for public use without just compensation as
provided by law.” Therefore, the decisions construing this language in the 1870 Constitution
remain relevant to the 1970 Constitution.
By adding the words “or damaged” to its constitutional provisions, Illinois provides a greater
guarantee for compensation than that found in the Fifth Amendment to the United States
Constitution, which refers only to property taken, not to property damaged. Equity Associates,
Inc. v. Village of Northbrook, 171 Ill.App.3d 115, 524 N.E.2d 1119, 121 Ill.Dec. 71 (1st Dist.
1988).
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§7.3
ILLINOIS EMINENT DOMAIN PRACTICE
The Illinois Supreme Court explained the difference between the federal and Illinois takings
clause in Hampton v. Metropolitan Water Reclamation District of Chicago, 2016 IL 119861, ¶14:
A review of the transcripts from the Constitutional Convention of 1870, when the
“damage” prong of the Illinois takings clause was added, indicates no intent on the
part of the convention delegates to deviate from the federal definition of a taking.
The amendment was made to provide broader protection and establish a
constitutional remedy for property owners whose real estate is damaged but not
taken as a result of public improvements.
Most of the rules of valuing property developed under the 1870 or 1970 constitutional
provisions have evolved on a case-by-case basis. The predominant common-law development has
led to some inconsistencies in Illinois law but certainly no more than occur in federal eminent
domain law that commentators have described as a “crazy-quilt pattern of Supreme Court
doctrine” (Allison Dunham, Griggs v. Alleghany County in Perspective: Thirty Years of Supreme
Court Expropriation Law, 1962 Sup.Ct.Rev. 63) or as a “massive body of case law, irreconcilable
in its inconsistency, confusing in its detail and defiant of all attempts at classification” (The
Public Use Limitation on Eminent Domain: An Advance Requiem, 58 Yale L.J. 599, 605 – 606
(1949)).
The Illinois Supreme Court codified the rules of evidence by adopting the Illinois Rules of
Evidence, effective January 1, 2011. Many of the rules may be applicable in eminent domain
cases, and therefore may affect the introduction of valuation evidence. For example, Rules 702 –
705 govern expert opinions and testimony.
Both the federal and Illinois courts have extensively explored the field of regulatory takings.
At issue most often in these cases is the question of when a land use regulation becomes a taking
of property rights that triggers an owner’s constitutional right to receive just compensation. A
discussion of these cases is beyond the scope of this chapter.
C. [7.3] Eminent Domain Act
Although the judiciary finally determines whether the rules for valuation conform to the
constitutional requirement of just compensation (Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2
L.Ed. 60 (1803); United States v. Commodities Trading Corp., 339 U.S. 121, 94 L.Ed. 707, 70
S.Ct. 547 (1950)), the Illinois legislature codified the general rule of valuation in §10-5-60 of the
Eminent Domain Act:
Value. Except as to property designated as possessing a special use, the fair cash
market value of property in a proceeding in eminent domain shall be the amount of
money that a purchaser, willing, but not obligated, to buy the property, would pay
to an owner willing, but not obliged, to sell in a voluntary sale.
***
In the condemnation of property for a public improvement, there shall be excluded
from the fair cash market value of the property any appreciation in value
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proximately caused by the improvement and any depreciation in value proximately
caused by the improvement. However, such appreciation or depreciation shall not
be excluded when property is condemned for a separate project conceived
independently of and subsequent to the original project. 735 ILCS 30/10-5-60.
The Illinois legislature enacted this part of the EDA in 1972 to conform to the mandate of the
federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970
(URA), Pub.L. No. 91-646, 84 Stat. 1894, that each state must comply with the URA’s
requirements to avoid a moratorium on its federally financed projects. City of Rock Island, Illinois
v. Moline National Bank, 54 Ill.App.3d 853, 368 N.E.2d 1113, 11 Ill.Dec. 505 (3d Dist. 1977).
The EDA contains many other provisions affecting valuation, which are analyzed
subsequently in this chapter.
1. [7.4] Background of Illinois’ Current Eminent Domain Act
The government’s use of the eminent domain power became a highly publicized and debated
topic following the United States Supreme Court’s decision in Kelo v. City of New London,
Connecticut, 545 U.S. 469, 162 L.Ed.2d 439, 125 S.Ct. 2655 (2005). This led the Illinois state
legislature to examine and revise, in part, the state’s eminent domain statute.
P.A. 94-1055 (eff. Jan. 1, 2007) created the Eminent Domain Act, which replaced the former
eminent domain statute located in Article VII of the Code of Civil Procedure, 735 ILCS 5/7-101,
et seq. The EDA also attempts to consolidate in one place all statutory provisions relating to the
exercise of the eminent domain power. Should a conflict arise between the provisions of the EDA
and other statutory provisions, the EDA controls. The EDA states that it is a denial and limitation
of home-rule powers and functions pursuant to Article VII, §6(h), of the Illinois Constitution. See
735 ILCS 30/90-5-20. While the EDA restates most of Article VII of the Code of Civil Procedure
and other eminent domain statutes, it does make several important changes. Because Kelo, supra,
and the subsequent public debate focused primarily on the issue of whether a taking met the
public-use constitutional standard rather than the just compensation constitutional standard, most
of the statutory changes focus on establishing a more precise public-use standard. However, some
changes also affect compensation. For example, as discussed in §7.14 below, the date of valuation
may change during the pendency of a condemnation proceeding.
2. [7.5] Effective Date and Exceptions
It is important to know what the Eminent Domain Act does not affect. The effective date was
January 1, 2007. Section 90-5-5 states that the EDA applies only to complaints to condemn filed
after January 1, 2007. 735 ILCS 30/90-5-5. The rationale supporting the January 1, 2007,
effective date was to give governmental agencies adequate forewarning to the change in the law
so that projects could be planned or changed accordingly. The effective date of the EDA means
that practitioners may need to refer to Article VII of the Code of Civil Procedure for some cases.
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The EDA does not apply to land acquisition under the O’Hare Modernization Act, 620 ILCS
65/1, et seq. Nor do some of the EDA’s provisions, particularly the proof standards in §5-5-5,
apply to land acquisition in furtherance of an existing “tax increment allocation redevelopment
plan,” defined as
a redevelopment plan that was adopted under the Tax Increment Allocation
Redevelopment Act (Article 11, Division 74.4 of the Illinois Municipal Code) prior to
April 15, 2006 and for which property assembly costs were, before that date,
included as a budget line item in the plan or described in the narrative portion of
the plan as part of the redevelopment project. 735 ILCS 30/5-5-5(a-10).
The rationale supporting the exception for existing tax increment financing (TIF) projects is that
municipalities have planned and invested in these projects in accordance with assumptions about
the ability to acquire land and the cost of land acquisition, and it would be unfair to change the
rules in the middle of the project. In some situations, the rules could have derailed an ongoing
project. The existing TIF exception to the provisions of the EDA is qualified in four ways. A
condemnation case filed after January 1, 2007, is subject to the EDA’s provisions even if in
furtherance of an existing TIF project, it involves (a) any additional area added to the TIF plan
after April 15, 2006; (b) any subsequent extension after April 15, 2006, of the plan’s completion
date; (c) any acquisition in a conservation TIF if the case is filed after January 1, 2019; or (d) any
acquisition of property in an industrial park conservation area. Id.
D. [7.6] Illinois Pattern Jury Instructions and Uniform Eminent Domain Act
The attorney handling a condemnation case also should be familiar with the standard eminent
domain jury instructions contained in the Illinois Pattern Jury Instructions — Civil
(I.P.I. — Civil). They provide a useful codification of the law, and the comments to each
instruction are helpful. In addition, Illinois Supreme Court Rule 239(a) provides an I.P.I. “shall be
used, unless the court determines that it does not accurately state the law.” Compliance with the
I.P.I. recommendations usually provides a safe harbor and eliminates the risk of an appellate
reversal due to improper instructions. Illinois State Toll Highway Authority v. Heritage Standard
Bank & Trust Co., 196 Ill.App.3d 5, 552 N.E.2d 1151, 142 Ill.Dec. 410 (2d Dist. 1990).
The specific jury instructions directed to condemnation cases are I.P.I. — Civil Nos.
300.01 – 300.87.
Use of the I.P.I. undoubtedly has reduced the number of appeals arising out of jury
instruction disputes. However, reliance on the I.P.I. should not be blind. The law can change after
the issuance of the pattern instructions, rendering them unreliable. That is what occurred in
Department of Public Works & Buildings v. Association of Franciscan Fathers of State of
Illinois, 69 Ill.2d 308, 371 N.E.2d 616, 13 Ill.Dec. 681 (1977), in which the Supreme Court held
that former I.P.I. — Civil No. 300.85 (2d ed. 1971) did not accurately state the law and, as a
result, the trial court had erred when, relying on former I.P.I. — Civil No. 300.85, it refused to
instruct the jurors that they could consider the reasonable probability of rezoning in ascertaining
just compensation.
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If non-I.P.I. instructions are proposed, the careful lawyer should note that the jury instruction
not only must correctly state the law but also must be clear and comprehensible to the jury. Oak
Brook Park District v. Oak Brook Development Co., 170 Ill.App.3d 221, 524 N.E.2d 213, 120
Ill.Dec. 448 (2d Dist. 1988). And even if the non-I.P.I. instruction correctly states the law, an
appellate court may reverse on the grounds the trial court unduly highlighted one segment of the
case by giving the non-I.P.I. instruction. Illinois State Toll Highway Authority v. Dicke, 208
Ill.App.3d 158, 566 N.E.2d 1003, 153 Ill.Dec. 153 (2d Dist. 1991).
In 1974, the National Conference of Commissioners on Uniform State Laws approved the
Uniform Eminent Domain Code and recommended it for enactment by the states. Unlike the
Uniform Commercial Code, 810 ILCS 5/1-101, et seq., the Uniform Eminent Domain Code
received very little positive response. Illinois did not enact any of its provisions. However, in
Department of Natural Resources of State of Illinois v. Brauer, 339 Ill.App.3d 723, 791 N.E.2d
120, 274 Ill.Dec. 324 (3d Dist. 2003), both the majority and dissent opinions refer to the Uniform
Eminent Domain Code for guidance.
E. [7.7] Appellate Review
The appellate courts will uphold the jury’s determination of just compensation unless the
verdict is more than the maximum testimony or less than the minimum testimony (Central
Illinois Public Service Co. v. Rider, 12 Ill.2d 326, 146 N.E.2d 48 (1957); Department of
Transportation v. Chicago Title & Trust Co., 303 Ill.App.3d 484, 707 N.E.2d 637, 236 Ill.Dec.
510 (1st Dist. 1999)) or unless the verdict is based on an erroneous ruling that might have misled
the jury, on a clear and palpable mistake, or on passion and prejudice (City of Chicago v.
Vaccarro, 408 Ill. 587, 97 N.E.2d 766 (1951); Department of Transportation v. Bolis, 313
Ill.App.3d 982, 730 N.E.2d 1152, 246 Ill.Dec. 687 (3d Dist. 2000)).
The limitations of appellate review and the influence of the harmless error doctrine were
highlighted when the appellate court refused to reverse a substantial jury verdict even though it
ruled the trial court had abused its discretion and erred by excluding evidence of an owner’s
statements concerning the value of the subject property. Oak Brook Park District v. Oak Brook
Development Co., 170 Ill.App.3d 221, 524 N.E.2d 213, 120 Ill.Dec. 448 (2d Dist. 1988).
Both the appellate court in Illinois State Toll Highway Authority v. Heritage Standard Bank
& Trust Co., 250 Ill.App.3d 665, 619 N.E.2d 1321, 1326, 189 Ill.Dec. 272 (2d Dist. 1993), and
the Supreme Court in Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust
Co., 163 Ill.2d 498, 645 N.E.2d 896, 899, 206 Ill.Dec. 644 (1994), restated the limited nature of
appellate review. Citing Oak Brook Park District, supra, the appellate court noted that “in case of
trial court error, a reversal is called for only if the evidence improperly admitted was sufficiently
prejudicial to change the outcome of the trial.” 619 N.E.2d at 1326. When the Supreme Court
considered the property owners’ contention that one of the numerous experts for the condemnor
had been permitted to testify erroneously about the contents of zoning board minutes, the
Supreme Court stressed the alleged error must be placed in the perspective of the entire case. 645
N.E.2d at 899 (“The law of this State is well established that the improper admission or exclusion
of value evidence does not constitute reversible error when there are other witnesses and evidence
as to value on both sides and the jury has the opportunity of viewing the property and weighing
the conflicting evidence.”).
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On the other hand, one month before issuing its opinion in Heritage Standard Bank, the
Supreme Court handed down an opinion specifically rejecting an argument that any error in
excluding an appraiser’s testimony does not require reversal. The Supreme Court asserted that
reversal and a new trial are warranted “if the trial court made an erroneous ruling which might
have misled the jury and which amounts to prejudicial error.” Illinois State Toll Highway
Authority v. American National Bank & Trust Company of Chicago, 162 Ill.2d 181, 642 N.E.2d
1249, 1256, 205 Ill.Dec. 132 (1994).
As a result of the appellate court’s reluctance to disturb a verdict within the range of the
evidence, frequently the only basis for appealing an adverse verdict lies in a claim that the verdict
was based either on an erroneous interpretation of the valuation rules or on an erroneous
application of these rules to the specific property being acquired.
II. [7.8] USE OF EXPERTS TO PROVE VALUATION ISSUES
Most eminent domain cases involve the use of real estate appraisers who testify as to their
opinion of market value of the property, the value of the property being taken, and, when
appropriate, the damage to the remaining property caused by the taking. Appraisers normally will
use one or more of the following three traditional methods of appraisal to arrive at an opinion of
the fair cash market value of the property:
a. the market or comparable-sales approach, in which the appraiser obtains recent sales of
comparable properties, compares the sales to the subject property, makes adjustments,
and forms an opinion of what price the subject property would bring;
b. the cost approach, in which the appraiser forms an opinion of the value of the land as if
vacant and then adds to it the depreciated reproduction costs of the improvements; and
c. the income approach, in which the appraiser measures the present value of the future
benefits of property ownership by capitalizing the income stream and value of property
reversion into a present, lump-sum value.
See American Institute of Real Estate Appraisers, THE APPRAISAL OF REAL ESTATE (14th
ed. 2013).
Illinois courts have accepted each approach “if the proper circumstances are present” (People
ex rel. Director of Finance v. Young Women’s Christian Association of Springfield, 74 Ill.2d 561,
387 N.E.2d 305, 310, 25 Ill.Dec. 649 (1979)), but they also have imposed strict requirements on
the use of each approach due to the unique nature of eminent domain proceedings. As a result, an
attorney should always review any legal barriers to a particular approach with the valuation
experts. If the appraiser considers improper elements, his or her testimony is incompetent and on
motion may be stricken. City of Chicago v. Giedraitis, 14 Ill.2d 45, 150 N.E.2d 577 (1958);
Chicago & Illinois Midland Ry. v. Crystal Lake Industrial Park, Inc., 225 Ill.App.3d 653, 588
N.E.2d 337, 167 Ill.Dec. 696 (3d Dist. 1992) (appraiser excluded for using valuation theories
previously barred by motions in limine and expert discovery rules).
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A. [7.9] Appraisers as Expert Witnesses
Initially, real estate valuation witnesses were not considered expert witnesses because their
opinions were not presented in the usual form as an answer to a hypothetical question. City of
Chicago v. Lehmann, 262 Ill. 468, 104 N.E. 829 (1914). The courts also may have felt that
appraisal testimony was based on opinion rather than scientific fact.
Subsequent Illinois decisions overturned these cases, and an appraiser is now considered to
be an expert witness. As a result, the rules governing the testimony of expert witnesses are
applied to the testimony of appraisers. Because an appraiser is normally retained by the client or
the attorney, the appraiser most often is a “controlled expert witness” as defined by S.Ct. Rule
213(f)(3).
The Illinois Supreme Court in Wilson v. Clark, 84 Ill.2d 186, 417 N.E.2d 1322, 49 Ill.Dec.
308 (1981), mandated the application of Fed.R.Evid. 703 and 705 to the testimony of expert
witnesses in Illinois state courts. The Second District then held that real estate appraisers were
expert witnesses as contemplated by the federal rules and, therefore, that their testimony should
be governed by these rules. Department of Transportation v. Beeson, 137 Ill.App.3d 908, 485
N.E.2d 511, 512, 92 Ill.Dec. 700 (2d Dist. 1985). The Supreme Court confirmed the applicability
of Fed.R.Evid. 703 and 705 to the testimony of a real estate appraiser in City of Chicago v.
Anthony, 136 Ill.2d 169, 554 N.E.2d 1381, 144 Ill.Dec. 93 (1990).
The Illinois Supreme Court adopted the Illinois Rules of Evidence, effective January 1, 2011.
Article VII of the Illinois Rules of Evidence is entitled “Opinions and Expert Testimony.” It
includes Ill.R.Evid. 702 (“Testimony by Experts”), 703 (“Bases of Opinion Testimony by
Experts”), 704 (“Opinion on Ultimate Issue”), and 705 (“Disclosure of Facts or Data Underlying
Expert Opinion”). All of these rules may affect testimony by appraisers.
B. [7.10] Bases of Appraisers’ Opinions
Fed.R.Evid. 703 permits an expert to base an opinion on facts or data from one of three
sources:
1. evidence admitted in court;
2. personal observation outside court; or
3. data presented to the expert outside court and outside his or her own perception.
By allowing the last category, Fed.R.Evid. 703 broadens the base for expert opinions. However,
to avoid problems that may occur because of the enlargement of the permissible data on which an
expert can rely, the rule requires that the facts or data must “be of a type reasonably relied upon
by experts in the particular field.” Advisory Committee Notes, 1972 Proposed Rules, Fed.R.Evid.
703. According to the Advisory Committee Notes:
If it be feared that enlargement of permissible data may tend to break down the
rules of exclusion unduly, notice should be taken that the rule requires that the facts
or data “be of a type reasonably relied upon by experts in the particular field.” Id.
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While Ill.R.Evid. 703 does not duplicate the words of its federal counterpart, it reflects
similar concepts. The Illinois rule permits an appraiser to base an opinion on facts or data known
at or before the hearing. And it provides that if the facts or data are “of a type reasonably relied
upon by experts in the particular field in forming opinions or inferences upon the subject, the
facts or data need not be admissible in evidence.” Id.
C. [7.11] Facts and Data Reasonably Relied On and Admissibility
Whether the facts or data are of a type reasonably relied on is a preliminary question for the
trial court. Department of Transportation ex rel. State of Illinois v. First National Bank of Arcola,
241 Ill.App.3d 601, 609 N.E.2d 389, 182 Ill.Dec. 86 (4th Dist. 1993); Bauman v. Centex Corp.,
611 F.2d 1115 (5th Cir. 1980); United States v. Lawson, 653 F.2d 299 (7th Cir. 1981); Barrel of
Fun, Inc. v. State Farm Fire & Casualty Co., 739 F.2d 1028 (5th Cir. 1984). In determining
whether the expert’s reliance is reasonable, the trial courts must make a two-step analysis that
determines whether (1) the information is of the type normally relied on by experts in the field
and (2) the particular information used by this expert is sufficiently trustworthy to make such
reliance reasonable. Michael H. Graham, Expert Witness Testimony and the Federal Rules of
Evidence: Insuring Adequate Assurance of Trustworthiness, 1986 U.Ill.L.Rev. 43, 75.
Ill.R.Evid. 703 specifically permits an expert to base an opinion on facts or data that “need
not be admissible in evidence.” The Illinois Rules of Evidence became effective on January 1,
2011. But evidentiary decisions before 2011 may still be relevant in construing the meaning of
these rules, particularly in determining their application to expert testimony. See, e.g., Solis v.
BASF Corp., 2012 IL App (1st) 110875, 979 N.E.2d 419, 365 Ill.Dec. 815.
In People v. Anderson, 113 Ill.2d 1, 495 N.E.2d 485, 99 Ill.Dec. 104 (1986), the Supreme
Court expanded on its decision in Wilson v. Clark, 84 Ill.2d 186, 417 N.E.2d 1322, 49 Ill.Dec.
308 (1981), and held that an expert could testify on direct examination as to the underlying basis
of his or her expert opinion, despite the fact that such basis was independently inadmissible due
to the hearsay evidentiary rule. The Supreme Court held that a psychiatrist should have been
permitted to testify on direct examination regarding the content of hearsay records he had used in
forming his opinion. The court held that the testimony regarding the facts in the underlying
reports was not admissible if offered for its truth, but it was admissible for the limited purpose of
explaining the basis for the expert witness’s opinion. The court noted, however:
A trial judge, of course, need not allow the expert to recite secondhand information
when its probative value in explaining the expert’s opinion pales beside its likely
prejudicial impact or its tendency to create confusion. 495 N.E.2d at 490.
Thus, while Wilson and its progeny abolish some of the traditional requirements as to the
underlying basis of foundation testimony, they do not eliminate others, such as relevancy.
The tension between those advocating the full elucidation of an expert’s opinion and those
concerned with the presentation of inadmissible evidence under the guise of the basis for an
expert opinion is apparent in many decisions. For example, in Melecosky v. McCarthy Bros., 115
Ill.2d 209, 503 N.E.2d 355, 104 Ill.Dec. 798 (1986), a divided Supreme Court held that a nontreating physician could render an expert opinion at trial even if it was based on the subjective
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statements of pain by the plaintiff. In so doing, the Supreme Court reversed the opinion of the
appellate court and overruled its prior holding in Jensen v. Elgin, Joliet & Eastern Ry., 24 Ill.2d
383, 182 N.E.2d 211 (1962). Justices Ryan and Miller filed a sharp dissenting opinion, stating
that “the majority opinion expands Rules 703 and 705 to the point that the accepted principles
governing the admissibility of evidence are abandoned.” 503 N.E.2d at 359.
This dissent forms the background for the subsequent decision by the Second District in
Lovelace v. Four Lakes Development Co., 170 Ill.App.3d 378, 523 N.E.2d 1335, 120 Ill.Dec. 424
(2d Dist. 1988), which upheld the exclusion of purported foundation testimony. Drawing a
distinction between the exclusion of the expert’s entire opinion, as in Melecosky, supra, and the
exclusion only of testimony explaining the basis for the opinion, the appellate court held that the
proponent of the foundation testimony must prove that the evidence is of a type customarily
relied on by experts and that the evidence is trustworthy so as to make the reliance reasonable.
In the eminent domain field, the tension arises when an appraiser is asked to describe the
sales of comparable properties that were used as the basis for the expert’s opinion. Information
concerning sales of other properties could be presented to the jury as independent evidence of
value by having a comparable-sales hearing or as foundation information leading to an expert
opinion of value. When used only as foundation evidence, the courts formerly placed constraints
on an appraiser’s ability to describe to the jury his or her use of sales evidence in formulating an
opinion of value based on the market approach. For example, in Lake County Forest Preserve
District v. Bank & Trust Company of Arlington Heights, 106 Ill.App.3d 856, 436 N.E.2d 237, 62
Ill.Dec. 487 (2d Dist. 1982), the appellate court ruled that an appraiser could describe in general
terms the sales that were considered but could not mention the actual sales price unless the sale
had previously been introduced in evidence as a comparable sale.
Whether the prohibition barring mention of the price of foundation sales survived the
adoption of Fed.R.Evid. 703 in Wilson, supra, was the issue before the appellate court in
Department of Transportation v. Beeson, 137 Ill.App.3d 908, 485 N.E.2d 511, 92 Ill.Dec. 700 (2d
Dist. 1985). In Beeson, the condemnor filed a motion in limine to preclude valuation witnesses
from testifying to the dollar amounts of sales they had considered in making their appraisal. The
trial court granted the motion. Finding that valuation witnesses are expert witnesses, that the
rationale of Wilson applies to valuation witnesses, and that, as a result, Fed.R.Evid. 703 and 705
govern the testimony of valuation witnesses, the appellate court reversed, stating:
The defendant claims that since Wilson did not limit the application of Rules 703
and 705 to any particular type of case, the Rules should be applied to the testimony
of valuation witnesses, with the result being that all sales considered by valuation
witnesses now are admissible. We agree. 485 N.E.2d at 512.
Later in the opinion, responding to the argument that appraisals are not made in accordance
with uniform standards and, lacking standards, valuation witnesses are unable to use information
“of a type reasonably relied upon by experts in the particular field,” as required by the Advisory
Committee Notes, 1972 Proposed Rules, Fed.R.Evid. 703, the appellate court stated:
We disagree with the plaintiff’s argument. The rule only requires that the facts or
data be of a type reasonably relied on. It is common knowledge that valuation
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witnesses routinely consider different comparable sales when determining the value
of a particular piece of property. There is no requirement in the rule that a uniform
standard exists. The ultimate decision of comparability rests with the trier of fact.
Although more responsibility will be placed on a jury if more evidence is admitted
than traditionally, a juror should be able to synthesize the information he or she
received in order to understand the differences between the proffered sales and the
subject property. 485 N.E.2d at 513.
Because neither party contested the comparability of the sales used by the appraiser (the only
contest centered on the method of their introduction in evidence), the Beeson court was not
presented with a challenge to the validity of the foundation of evidence. This challenge arose in
Department of Transportation ex rel. People v. Amoco Oil Co., 174 Ill.App.3d 479, 528 N.E.2d
1018, 124 Ill.Dec. 127 (2d Dist. 1988), when the condemnor presented a motion in limine seeking
to exclude evidence of certain sales on the basis that the sales were not comparable. In its
opinion, the appellate court, relying on Beeson, upheld the trial court’s decision to permit
appraisers to testify fully about sales. However, it qualified the Beeson opinion in two key
respects. First, whereas in Beeson, the appellate court stated “that all sales considered by
valuation witnesses now are admissible” (485 N.E.2d at 512), in Amoco, the appellate court
qualified this by stating “that all sales reasonably relied upon by experts in the field are
admissible” [emphasis added] (528 N.E.2d at 1025). Second, Amoco grants the trial court the
discretion to hold a separate hearing to “determine whether the expert’s opinion utilizes material
reasonably relied upon by experts in the field.” 528 N.E.2d at 1026.
Following Beeson and Amoco in the Second District, the First District confronted the issue of
the extent to which an appraiser may testify concerning comparable sales as a basis for an opinion
in Department of Conservation of State of Illinois v. Dorner, 192 Ill.App.3d 333, 548 N.E.2d 749,
139 Ill.Dec. 364 (1st Dist. 1989). The appellate court stated, in dicta, that an appraiser could
testify concerning sales that had not been admitted in evidence if the sales were in fact
comparable. However, if the sales were not comparable, the Dorner court held that they would
not qualify as sales of the type normally relied on by an expert, and thus the trial court could use
its discretion to exclude testimony concerning the sales even if the appraiser had relied on them.
While it cited Amoco and Beeson with approval in its decision, the Dorner court actually
contradicted Beeson’s dicta “that all sales considered by valuation witnesses now are admissible”
(485 N.E.2d at 512).
In City of Chicago v. Anthony, 136 Ill.2d 169, 554 N.E.2d 1381, 1391, 144 Ill.Dec. 93 (1990),
the Illinois Supreme Court decided the issue and specifically disagreed with the Beeson court’s
statement that Wilson, supra, had “altered the rule of judicial discretion in the admissibility of
comparable sales” (485 N.E.2d at 512). The Supreme Court outlined the following analysis to be
undertaken by a trial judge when confronted with an objection to an expert’s proposed testimony
of the facts or data underlying his or her opinion:
We hold that it is for the circuit court, in the exercise of its discretion, to determine
whether the underlying facts or data upon which an expert bases an opinion are of a
type reasonably relied upon by experts in the particular field. Such a determination
shall not be disturbed unless there has been an abuse of discretion.
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The opinion of an expert that the underlying facts or data upon which he or she
seeks to base an opinion are of a type reasonably relied upon by experts in the
particular field is a factor to be considered by a circuit court in the exercise of its
discretion. This, however, does not allow the circuit court to “abdicate its
independent responsibilities to decide if the bases meet minimum standards of
reliability as a condition of admissibility.” [In re “Agent Orange” Product Liability
Litigation, 611 F.Supp. 1223, 1245 (E.D.N.Y. 1985), aff’d, 818 F.2d 187 (2d Cir. 1987).]
The reason for the substantive inadmissibility of the facts or data upon which an
expert relies must be considered by the circuit court. If another rule of law
applicable to the case excludes the information sought to be relied upon by the
expert, the information may not be permitted to come before the jury under the
guise of a basis for the opinion of the expert.
* * *
In this case, it is eminent domain law which controls the admissibility of evidence
for its truth as well as for the limited purpose of explaining the basis for an expert’s
opinion pursuant to Rule 703. 554 N.E.2d at 1389.
In support of its approach, the Supreme Court cited with approval “Agent Orange” and
Barrel of Fun, supra. Both of these decisions emphasize that the trial court, rather than the expert,
has the ultimate responsibility to independently determine whether the bases for the expert’s
opinion meet the reliability standard. In addition, even if the bases for the expert’s opinion meet
the reliability standard, the trial court may have to make a further determination as to whether the
bases are subject to exclusion due to the application of other rules of evidence that outweigh the
interests of revealing these particular facts or data to the jury. The Anthony court held the trial
court’s determination of these questions should not be overruled unless there has been an abuse of
discretion.
If an appraiser fails to fully describe the bases for the valuation opinion on direct
examination, the trial court should permit the cross-examiner to question and elicit all the facts,
data, and opinions that form the appraiser’s opinion. City of Chicago v. Eychaner, 2015 IL App
(1st) 131833, 26 N.E.3d 501, 389 Ill.Dec. 411.
The ground rules established by Anthony led the appellate court to reverse the trial court in
Illinois State Toll Highway Authority v. Dicke, 208 Ill.App.3d 158, 566 N.E.2d 1003, 1011, 153
Ill.Dec. 153 (2d Dist. 1991). During trial, the owner’s appraisers testified they had considered, in
arriving at their opinion of market value, an offer to purchase made to the owner after the
valuation date. The trial court, over objection, permitted reference to the offer on the basis that
the appraiser had relied on it in forming an expert opinion. Reversing the trial court’s decision to
permit testimony about the offer, the appellate court noted the general rule barring evidence of
offers to purchase after filing the complaint. Department of Public Works & Buildings v. Finks,
10 Ill.2d 15, 139 N.E.2d 267 (1956). Then, relying on Anthony, the appellate court in Dicke
noted:
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The mere fact that an expert has based his opinion on some information or data
does not automatically ensure its admissibility under Rule 703. . . .
Within the context of the instant cause, it is eminent domain law which controls the
admissibility of evidence that is offered either for its truth or for the limited purpose
of explaining the basis for an expert’s opinion. 566 N.E.2d at 1011.
Adhering to the Anthony rule, the appellate court held the trial court has the responsibility to
determine whether sales used by an appraiser are of the type that would be reasonably relied on
by an expert in the field. First National Bank of Arcola, supra.
If an appraiser attempts to rely on the testimony or information provided by another expert,
such as an engineer, the appraiser must be prepared to prove that such reliance is reasonable and
the information, or expert opinion, is relevant to the appraiser’s opinion of market value.
Department of Transportation v. LaSalle National Bank, 251 Ill.App.3d 901, 623 N.E.2d 390,
191 Ill.Dec. 145 (2d Dist. 1993) (upholding admissibility of engineer’s testimony regarding
existence of wetlands on site); Chicago & Illinois Midland Ry. v. Crystal Lake Industrial Park,
Inc., 225 Ill.App.3d 653, 588 N.E.2d 337, 167 Ill.Dec. 696 (3d Dist. 1992) (error to permit
appraiser to testify regarding sand and gravel content of property when source of appraiser’s
information was not adequately documented).
D. [7.12] Gatekeeper Role of Trial Judge
As explained in §7.11 above, the Illinois Supreme Court empowered the trial judge to
determine whether the expert’s opinion was based on facts or data that were of a type reasonably
relied on by experts in the relevant field. City of Chicago v. Anthony, 136 Ill.2d 169, 554 N.E.2d
1381, 144 Ill.Dec. 93 (1990). Federal courts have taken a similar approach.
The United States Supreme Court emphasized the gatekeeper role of the trial judge when
presented with an objection to proposed expert testimony in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed.2d 469, 113 S.Ct. 2786, 2799 (1993), stating that
“the Rules of Evidence — especially Rule 702 — do assign to the trial judge the task of ensuring
that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.”
The expert testimony at issue in Daubert concerned scientific testimony, i.e., whether the drug
Bendectin caused birth defects. But federal courts have applied a Daubert analysis to valuation
testimony in cases such as Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d 183 (7th Cir. 1993),
and United States v. 14.38 Acres of Land, More or Less, Situated in Leflore County, State of
Mississippi, 884 F.Supp. 224 (N.D.Miss. 1995), vacated, 80 F.3d 1074 (5th Cir. 1996).
Six years after Daubert, supra, the United States Supreme Court extended the federal judge’s
gatekeeper role to examine for reliability and relevance to all expert testimony in Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 143 L.Ed.2d 238, 119 S.Ct. 1167, 1174 – 1175 (1999). Upholding a
trial court’s exclusion of a tire failure analyst’s expert testimony because his methodology was
unreliable, the Supreme Court held:
We conclude that Daubert’s general principles apply to the expert matters described
in Rule 702. The Rule, in respect to all such matters, “establishes a standard of
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evidentiary reliability.” 509 U.S., at 590, 113 S.Ct. 2786. It “requires a valid . . .
connection to the pertinent inquiry as a precondition to admissibility.” Id., at 592,
113 S.Ct. 2786. And where such testimony’s factual basis, data, principles, methods,
or their application are called sufficiently into question . . . the trial judge must
determine whether the testimony has “a reliable basis in the knowledge and
experience of [the relevant] discipline.” 509 U.S., at 592, 113 S.Ct. 2786. 119 S.Ct. at
1175.
Federal district courts have applied the Kumho Tire directives for reviewing expert testimony
to real estate valuation testimony. E.g., Cayuga Indian Nation of New York v. Pataki, 83
F.Supp.2d 318 (N.D.N.Y. 2000); Adams v. NVR Homes, Inc., 141 F.Supp.2d 554 (D.Md. 2001);
Rockies Express Pipeline, LLC v. Burtle, 492 Fed.Appx. 666 (7th Cir. 2012) (upholding exclusion
of appraisal testimony because seven of ten alleged comparable sales were too dissimilar).
Although it did not cite either Daubert, supra, or Kumho Tire, supra, the Illinois appellate
court upheld the trial court’s exclusion of an appraisal because the appraiser’s highest and best
use opinion “lacked a proper evidentiary foundation and, given the unique facts of this case, the
trial court properly barred its introduction as evidence under principles of fundamental fairness.”
City of Quincy, Illinois v. Diamond Construction Co., 327 Ill.App.3d 338, 762 N.E.2d 710, 715,
261 Ill.Dec. 141 (4th Dist. 2002).
How the gatekeeper theme squares with the Illinois Supreme Court’s decision in Donaldson
v. Central Illinois Public Service Co., 199 Ill.2d 63, 767 N.E.2d 314, 262 Ill.Dec. 854 (2002), is
an interesting question. Donaldson reaffirmed the Illinois Supreme Court’s position that the
admissibility of expert testimony that uses new or novel scientific principles or techniques in
Illinois is governed by the Frye test (Frye v. United States, 293 F. 1013 (D.C.Cir. 1923)). In so
doing, the court expressly rejected submitting expert testimony to the Frye-plus-reliability
standard. This standard, which was best articulated in Harris v. Cropmate Co., 302 Ill.App.3d
364, 706 N.E.2d 55, 235 Ill.Dec. 795 (4th Dist. 1999), incorporates some of the factors raised in
Daubert, supra. Ill.R.Evid. 702 follows the Donaldson rationale. However, despite its indirect
renunciation of a Daubert-type approach to expert testimony, the Donaldson opinion also
contains a footnote that states: “[t]he parties have not argued, and we have not considered, the
adoption of a new standard consistent with . . . Daubert . . . . We will not raise this issue sua
sponte.” 767 N.E.2d at 325 n.1.
There is no doubt cases will test the meaning and parameters of Donaldson’s effect on expert
testimony in condemnation cases. Some commentators believe the Donaldson approach provides
a more limited “gatekeeping” role for the trial court. See Michael H. Graham, GRAHAM’S
HANDBOOK OF ILLINOIS EVIDENCE §702.10 (2016 ed.). But, even after Donaldson, an
experienced expert may not present an opinion based on pure conjecture. People v. Ceja, 204
Ill.2d 332, 789 N.E.2d 1228, 273 Ill.Dec. 796 (2003). The Supreme Court in Anthony, supra,
made clear that it is the trial court, not the expert, who has the final word in determining what
testimony a jury will hear.
In a condemnation case decided two years after Donaldson, supra, the appellate court
referred with approval to the trial court’s role as a gatekeeper having an independent
responsibility to decide if the bases of an appraiser’s opinion are of a type reasonably relied on
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and meet minimum standards of reliability. Southwestern Illinois Development Authority v. AlMuhajirum, 348 Ill.App.3d 398, 809 N.E.2d 730, 284 Ill.Dec. 164 (5th Dist. 2004). The appellate
court in Al-Muhajirum cited Anthony, supra, as authority for its opinion but did not mention
Donaldson. 809 N.E.2d at 732 – 733.
The appropriate role of the trial court when ruling on the basis of an expert’s opinion is still
somewhat uncertain. Compare Snelson v. Kamm, 204 Ill.2d 1, 787 N.E.2d 796, 272 Ill.Dec. 610
(2003), with In re Commitment of Simons, 213 Ill.2d 523, 821 N.E.2d 1184, 290 Ill.Dec. 610
(2004).
A 2014 invocation of the trial judge’s gatekeeper role in a condemnation case is Department
of Transportation ex rel. People v. Raphael, 2014 IL App (2d) 130029, ¶16, 9 N.E.3d 1120, 381
Ill.Dec. 1, in which the appellate court stated, when reviewing the admissibility of appraisal
opinions:
Whether the facts and data relied upon by a given appraiser are of a type
reasonably relied upon by experts in the field of real estate appraisals is a
determination left to the sound discretion of the trial court. City of Chicago v.
Anthony, 136 Ill.2d 169, 186, 144 Ill.Dec. 93, 554 N.E.2d 1381 (1990). Thus, we will
not disturb a trial court’s decision to bar an appraiser’s testimony absent a clear
abuse of discretion.
III. VALUATION IN COMPLETE ACQUISITIONS
A. Just Compensation
1. [7.13] Just Compensation as Fair Cash Market Value
The constitutional mandate to pay just compensation gives the courts freedom to determine
what would be appropriate compensation in each case. As Justice Black stated in United States v.
Commodities Trading Corp., 339 U.S. 121, 94 L.Ed. 707, 70 S.Ct. 547, 549 (1950):
This Court has never attempted to prescribe a rigid rule for determining what is
“just compensation” under all circumstances and in all cases. Fair market value has
normally been accepted as a just standard. But when market value has been too
difficult to find, or when its application would result in manifest injustice to owner
or public, courts have fashioned and applied other standards. . . . Whatever the
circumstances under which such constitutional questions arise, the dominant
consideration always remains the same: What compensation is “just” both to an
owner whose property is taken and to the public that must pay the bill?
In United States v. Norwood, 602 F.3d 830 (7th Cir. 2010), Judge Posner elaborated on the
distinction between “just compensation,” which is based on market value, and “common-law
compensation” or “full compensation,” which can include additional items, such as moving
expenses.
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The Illinois state courts have accepted fair market value as the standard for determining just
compensation. In 1977, the Illinois Supreme Court, through Justice Clark, observed: “Just
compensation is the fair market value of the property at its highest and best use on the date of
filing of the petition.” Department of Public Works & Buildings v. Association of Franciscan
Fathers of State of Illinois, 69 Ill.2d 308, 371 N.E.2d 616, 618, 13 Ill.Dec. 681 (1977). This
pronouncement follows a long line of cases reaching back to the first case decided under the
Eminent Domain Act of 1872 in the September 1872 term of the Illinois Supreme Court, in which
the court stated: “Of course the true test as to the damages to be paid, is the market value of the
land.” Haslam v. Galena & Southern Wisconsin R.R., 64 Ill. 353, 355 (1872).
In City of Chicago v. Cunnea, 329 Ill. 288, 160 N.E. 559, 562 (1928), the Supreme Court
elaborated on the meaning of “just compensation”:
Just compensation means the payment of such sum of money as will make the owner
whole, so that on receipt of the compensation he will not be poorer by reason of his
property being taken. . . . The measure of compensation is a sum of money that is
the equivalent of the value of the property. That means such a sum as the property
would sell for cash under ordinary circumstances, assuming that the owner is
willing to sell and the purchaser willing to buy. [Citations omitted.]
Cunnea not only sets forth the standard of fair market value for ascertaining just
compensation but also serves to illustrate the limits created by this standard. In this case, the City
of Chicago condemned property on three lots. At trial, the owners’ attorney argued the owners
were entitled to receive enough money to purchase the same type of house after the acquisition as
they had before. Holding that the attorney’s argument was directed toward the replacement value
of the house, rather than its market value, the Supreme Court reversed.
As is discussed in §§7.27 – 7.32 below, the fair market standard excludes several aspects of
value, such as replacement value, particular value to the specific owner, sentimental value, or
ongoing business value, which, at first glance, might be considered to be a part of just
compensation. The courts created these restrictions on compensation for two reasons. First, the
fair market rule provides a neutral or objective method of determining just compensation and
therefore achieves a balance between the rights of the public and the rights of the individual.
Second, and more important, the fair market rule focuses on the property itself — what is being
condemned — rather than on the person who owns the property or the public body that is
acquiring it. Both the Fifth Amendment to the United States Constitution (“nor shall private
property be taken for public use, without just compensation”) and Article I, §15, of the Illinois
Constitution (“[p]rivate property shall not be taken or damaged for public use without just
compensation as provided by law”) are directed to the property itself, not to the rights of the
individual, as are the other portions of the federal Bill of Rights and the Illinois Bill of Rights. If
one keeps in mind that an eminent domain proceeding is brought to ascertain the compensation to
be paid for the acquisition of property, not for the loss to an individual, the valuation rules make
more sense.
The federal and state constitutional requirements to pay just compensation do not include any
requirement, unless specifically authorized by statute, to pay the property owners’ legal fees or
litigation expenses. Thus, the American rule, which requires each side to shoulder its own
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attorneys’ fees and expenses, remains the default rule in eminent domain litigation. Department
of Transportation of State of Illinois v. Carriage Hills Kennels, 255 Ill.App.3d 43, 627 N.E.2d
303, 194 Ill.Dec. 187 (1st Dist. 1993); Illinois State Toll Highway Authority v. American National
Bank & Trust Company of Chicago, 162 Ill.2d 181, 642 N.E.2d 1249, 205 Ill.Dec. 132 (1994).
However, the Eminent Domain Act includes an offer-of-judgment procedure in certain types of
condemnation cases. 735 ILCS 30/10-5-110. Loosely patterned after Fed.R.Civ.P. 68, the
procedure could require the condemnor to pay the owners’ legal fees and expenses.
A second statutory exception to the American rule exists when either the condemnor is
judged not to have the right to acquire the property or the condemnor abandons the proceedings.
Under 735 ILCS 30/20-5-45 and 30/10-5-70(a), the owner in such cases may recover its
reasonable attorneys’ fees, costs, and expenses. Village of Cary v. Trout Valley Ass’n, 297
Ill.App.3d 63, 696 N.E.2d 1154, 231 Ill.Dec. 583 (2d Dist. 1998).
Should “just compensation” include the full market value of the property if, between the date
of filing the condemnation case and the date title is conveyed to the condemning authority, the
owner sells easements over the property to nonparties to the litigation? This interesting question
drew a two-one decision by the appellate court in Department of Natural Resources of State of
Illinois v. Brauer, 339 Ill.App.3d 723, 791 N.E.2d 120, 274 Ill.Dec. 324 (3d Dist. 2003). Because
the condemning authority did not explicitly prove the easements had diminished the value of the
property, the majority held the condemning authority was not entitled to a setoff and had to pay
full market value for the property on the date of filing the condemnation case.
2. [7.14] Date of Valuation
Until 2007, both Illinois statutes and caselaw uniformly directed that the date for valuing
property in an Illinois eminent domain proceeding was the date of filing the complaint to
condemn. But the Eminent Domain Act and the Illinois Supreme Court’s decision in Forest
Preserve District of DuPage County v. First National Bank of Franklin Park, 2011 IL 110759,
961 N.E.2d 775, 356 Ill.Dec. 386, created exceptions to the “date of value is the date of filing”
rule.
The Eminent Domain Act of 1972 provided that the fair cash market value of property in a
condemnation proceeding “shall be determined and ascertained as of the date of filing the
complaint to condemn.” Ill.Rev.Stat. (1973), c. 47, ¶9.7. The legislature restated this provision
when it enacted the Illinois Code of Civil Procedure (former 735 ILCS 5/7-121).
Section 10-5-60 of the EDA restates the normal rule that the date of filing the complaint is the
date of valuation but then offers the following two exceptions:
(i) in the case of property not being acquired under Article 20 (quick-take), if the
trial commences more than 2 years after the date of filing the complaint to
condemn, the court may, in the interest of justice and equity, declare a valuation
date no sooner than the date of filing the complaint to condemn and no later than
the date of commencement of the trial; and
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(ii) in the case of property that is being acquired under Article 20 (quick-take), if the
trial commences more than 2 years after the date of filing the complaint to
condemn, the court may, in the interest of justice and equity, declare a valuation
date no sooner than the date of filing the complaint to condemn and no later than
the date on which the condemning authority took title to the property. 735 ILCS
30/10-5-60.
The standard for granting a new valuation date imposed on the trial court — “in the interest of
justice and equity” — apparently grants broad, but not unfettered, discretion. Id. On a practical
level, changing the valuation requires the parties to expend additional costs in new appraisers, etc.
It probably also requires entry of a new case-management schedule to conform with the
requirement in S.Ct. Rule 218(c) that discovery must be completed no later than 60 days before
trial. 735 ILCS 30/90-5-5 provides that this change applies to complaints filed after the effective
date of the EDA, January 1, 2007.
In 2011, the Illinois Supreme Court introduced a constitutional perspective to the date of
valuation question when it published its opinion in First National Bank of Franklin Park. The
forest preserve district had filed its complaint in 1999, but the jury trial did not occur until 2007.
The owner asserted that his constitutional right to receive just compensation had been violated
because the jury’s award was based on the market value of the property in 1999 — as directed by
the applicable statute (former 735 ILCS 5/7-121, now 735 ILCS 30/10-5-60) — even though the
property’s value had allegedly substantially increased between 1999 and 2007, the date of trial.
Holding that the Fifth Amendment’s Just Compensation Clause required the date of valuation to
be the date of taking rather than the date of filing, the appellate court vacated the jury’s verdict
and remanded for further proceedings by the trial court to determine if the current value of the
property was equivalent to the value on the filing date. Forest Preserve District of DuPage
County v. First National Bank of Franklin Park, 401 Ill.App.3d 966, 930 N.E.2d 477, 341 Ill.Dec.
267 (2d Dist. 2010).
While the Supreme Court acknowledged that its analysis does not consider the effect of the
changes in the date of valuation provisions in the EDA, the Supreme Court based its opinion on
constitutional requirements. Therefore, its reasoning applies to cases filed after the January 1,
2007, changes to §10-5-60.
The Supreme Court’s reasoning is relatively straightforward, but the practical effects of its
decision are not. The court correctly assumes the Fifth Amendment’s requirement that just
compensation be paid to an owner is applicable to state eminent domain proceedings. The court
then attempts to apply to Illinois eminent domain proceedings the interpretation of the Fifth
Amendment’s just compensation requirement made by the United States Supreme Court in Kirby
Forest Industries, Inc. v. United States, 467 U.S. 1, 81 L.Ed.2d 1, 104 S.Ct. 2187 (1984). In
Kirby, the United States Supreme Court held that property must be valued as of the date of taking
to meet constitutional standards.
The Illinois Supreme Court reviewed Illinois law to determine when a taking occurs in an
Illinois eminent domain case and concluded:
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We find that a taking in Illinois for the purposes of applying Kirby occurs on the
date that the government (1) deposits the amount of compensation that has been
ascertained and awarded, and (2) acquires title and the right to possess the
property. [Emphasis in original.] First National Bank of Franklin Park, supra, 2011 IL
110759 at ¶40.
Because First National Bank of Franklin Park did not involve use of quick-take proceedings, the
taking would not occur until after the jury had rendered its verdict and the forest preserve district
had deposited the jury award. The Supreme Court concluded that the jury’s award, which was
based on a 1999 valuation date, would not necessarily represent the market value of the property
on the taking date, which would now be in 2011, because the forest preserve district had yet to
take title and possession. The Supreme Court ruled:
The appellate court also correctly vacated the jury’s verdict as to the value of the
property, subject to a possible reinstatement by the trial court following a hearing
on just compensation using the current value of the property. 2011 IL 110759 at ¶70.
First National Bank of Franklin Park leaves unanswered a host of practical questions,
including the following:
a. How does the “date of value is the date of taking” requirement square with the valuation
provisions in §10-5-60?
b. If the trial judge has the right to vacate a jury’s verdict because the judge concludes that
the jury’s verdict does not represent the correct value, how does this right square with the Illinois
constitutional right to have just compensation determined by a jury?
c. In a non-quick-take situation, the date of taking will always occur after the jury trial.
What valuation date is to be used to guide valuation testimony at the jury trial?
d. How does the trial court proceed during the posttrial hearing in a partial takings case
because in that situation the jury has not determined the value of the whole property?
e. How does the trial court handle the case-management requirements in S.Ct. Rule 218 if
the valuation date is to be the date of trial, as Kirby, supra, proclaims?
The First District Appellate Court relied on First National Bank of Franklin Park to
determine whether a person was a lessee as of the date of taking and therefore could claim a
portion of the just compensation. Holding that the lease had expired after the date of filing the
condemnation case but before the date of taking, the appellate court construed the Supreme
Court’s decision, stating:
The court emphasized that prior rulings and comments placing the time of a taking
as of the date of the filing of the petition for condemnation merely held that the date
of filing was the date used for determining the value of the property and did not
disturb these rulings on that issue. Public Building Commission of Chicago v. Yellen,
2013 IL App (1st) 112638, ¶31, 986 N.E.2d 706, 369 Ill.Dec. 393.
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Because the EDA retains the former statutory provision that property is to be valued “as of
the date of filing the complaint to condemn” (735 ILCS 30/10-5-60) and because Yellen seems to
support the date of filing rule, prior caselaw discussing the valuation date remains relevant.
Enacted in 1982, the statutory directive on when to value the condemned property merely
codified the previous common-law rule. From the Illinois Supreme Court decision in South Park
Commissioners v. Dunlevy, 91 Ill. 49 (1878), to First National Bank of Franklin Park, supra,
every Illinois court but one has upheld the date of filing valuation rule. The single exception
involved the acquisition of a utility company required by its operating authority to make
improvements to the utility after the filing date. The Supreme Court ruled it should be
compensated for the required additional improvements. Illinois Cities Water Co. v. City of Mt.
Vernon, 11 Ill.2d 547, 144 N.E.2d 729 (1957).
Invoking the date of filing rule in City of Chicago v. Farwell, 286 Ill. 415, 121 N.E. 795, 796
(1918), the Supreme Court denied the owners’ request for a later valuation date due to an increase
in property value after the condemnation complaint had been filed by referring to the rule as a
“fixed rule” that “passed beyond the stage of discussion.” Conversely, in Forest Preserve Dist. of
Cook County v. Eckhoff, 372 Ill. 391, 24 N.E.2d 52 (1939), the Supreme Court rejected the
owner’s request for a jury instruction that would have directed the jury to consider the decrease of
property values due to prevailing economic conditions on the date of filing the complaint, which
was during the Great Depression.
This rule prevailed even when the owners had strong equitable arguments. In cases such as
Chicago Housing Authority v. Lamar, 21 Ill.2d 362, 172 N.E.2d 790 (1961), the Supreme Court
refused to grant the owners’ motion to value the property before the condemnation petition was
filed. The date of filing remained the date of valuation even though the condemnor’s
precondemnation activities had adversely affected real estate values and had contributed to the
property’s depreciation. It is noteworthy that the Illinois legislature solved this problem when it
enacted former 735 ILCS 5/7-121 in 1982, not by giving the trial court discretion to change the
valuation date, but by providing that any appreciation or depreciation in a property’s value caused
by the condemnor’s improvement should be excluded from the valuation on the date of filing the
complaint to condemn. City of Rock Island, Illinois v. Moline National Bank, 54 Ill.App.3d 853,
368 N.E.2d 1113, 11 Ill.Dec. 505 (3d Dist. 1977).
In Department of Transportation of State of Illinois ex rel. People v. Zabel, 29 Ill.App.3d
407, 330 N.E.2d 878 (3d Dist. 1975), the appellate court prohibited the trial court from setting a
date of valuation other than the filing date. In Trustees of Schools of Township No. 37 v. First
National Bank of Blue Island, 49 Ill.2d 408, 274 N.E.2d 56 (1971), the Supreme Court held that,
due to the date of filing rule, mere delay in bringing a case to trial did not warrant recovery of
damages for the delay.
A somewhat indirect exception to the date of filing valuation rule was created by the
appellate court in City of Quincy, Illinois v. Diamond Construction Co., 327 Ill.App.3d 338, 762
N.E.2d 710, 261 Ill.Dec. 141 (4th Dist. 2002). The owner of an asphalt plant started to relocate
equipment before the city filed its condemnation case because the owner needed to be operational
at its new site by a certain date to meet contractual obligations for the next construction season.
Both the city and the owner had had communications about the proposed taking before the owner
decided to start the relocation process. The appraiser for the city originally appraised the property
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with a highest and best use as an asphalt plant. However, as of the date of filing the condemnation
case, the city’s appraiser opined the highest and best use was not an asphalt plant but vacant
industrial. The revised appraised value of the entire tract was approximately one sixth of the
earlier value as an asphalt plant.
Responding to a motion in limine, the trial court barred use of the vacant industrial appraisal.
The appellate court acknowledged the date of filing valuation rule but nevertheless affirmed the
trial court’s decision to exclude the vacant industrial appraisal, holding:
[W]e conclude the issue of highest and best value may be a question of law for the
trial judge when the evidence is so inherently improbable it should be excluded from
the jury.
Whether the issue in this case is fundamental fairness to [the owner] or the inherent
improbability of the evidence of highest and best use as stated in Briggs’ second
appraisal, the trial judge correctly ruled to exclude the evidence of Briggs’ second
appraisal. [Emphasis in original.] 762 N.E.2d at 716.
The “inherent improbability” referred to the fact that the owner would not have started to
dismantle the asphalt plant had it not been for the city’s impending acquisition. Id.
When the date of filing rule worked an injustice, the Illinois courts formerly responded by
dismissing the complaint to condemn rather than by changing the date of value. Once the case
had been dismissed, the condemnor had to refile and thereby receive a later valuation date.
Sanitary Dist. of Chicago v. Chapin, 226 Ill. 499, 80 N.E. 1017 (1907).
Should the condemnor increase the size of the acquisition, the date of valuing the new or
additional property would be the date of filing the amended complaint. Lieberman v. Chicago &
S.S.R.T.R. Co., 141 Ill. 140, 30 N.E. 544 (1892); Department of Transportation v. HP/Meachum
Land Limited Partnership, 245 Ill.App.3d 252, 614 N.E.2d 485, 185 Ill.Dec. 351 (2d Dist. 1993).
Should the condemnor decrease the size of the acquisition, the date of valuing the remaining
property would remain the date of filing the original complaint. Department of Transportation of
State of Illinois v. LaSalle National Bank, 102 Ill.App.3d 1093, 430 N.E.2d 286, 58 Ill.Dec. 344
(2d Dist. 1981). In LaSalle National Bank, the Second District carefully distinguished the First
District’s decision in People v. Northern Trust Co., 59 Ill.App.3d 1053, 376 N.E.2d 286, 17
Ill.Dec. 287 (1st Dist. 1978).
The date of filing rule does not preclude evidence of actions occurring after the filing date as
long as they relate to valuation on the filing date. For example, in People ex rel. Department of
Transportation v. Birger, 155 Ill.App.3d 130, 507 N.E.2d 1321, 107 Ill.Dec. 952 (5th Dist. 1987),
evidence was admitted of a sale occurring two months after the valuation date when no
substantial change in the area took place during this period. The proponent of the post-valuation
date sale has the burden of proving that the public project did not influence the sales price. Illinois
State Toll Highway Authority v. Heritage Standard Bank & Trust Co., 250 Ill.App.3d 665, 619
N.E.2d 1321, 189 Ill.Dec. 272 (2d Dist. 1993). Similarly, in Oak Brook Park District v. Oak
Brook Development Co., 170 Ill.App.3d 221, 524 N.E.2d 213, 223, 120 Ill.Dec. 448 (2d Dist.
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1988), the trial court admitted evidence of DuPage County’s “Master Plan,” even though it was
adopted nine months after the filing date. Upholding its admissibility, the appellate court noted
the plan was based on facts and circumstances that existed on the valuation date.
On the other hand, a significant change in the condition of the property after the date of filing
the complaint to condemn may foreclose evidence of the property’s condition in its postcomplaint state or even a jury view of the property. Illinois State Toll Highway Authority v.
Grand Mandarin Restaurant, Inc., 189 Ill.App.3d 355, 544 N.E.2d 1145, 136 Ill.Dec. 370 (2d
Dist. 1989) (upholding exclusion of videotape of restaurant taken after filing date and after
owners had removed personal property and fixtures).
The owners’ ability to encumber the subject property with easements after the date of filing
the condemnation case but before the condemnor obtained title by paying the jury verdict led to
an interesting discussion of the proper valuation date in Department of Natural Resources of State
of Illinois v. Brauer, 339 Ill.App.3d 723, 791 N.E.2d 120, 274 Ill.Dec. 324 (3d Dist. 2003). After
the Illinois Department of Natural Resources (DNR) filed its complaint to condemn but before
DNR obtained title to the property, the owners sold easements over the property for $35,000. In a
two-one decision, the appellate court refused to uphold a $35,000 setoff against the jury’s
compensation award on the basis that DNR had not proved the easements had decreased the
property’s value.
3. Highest and Best Use
a. [7.15] Definition
Property must be valued at its highest and best use. This term of art means the use that would
give the property its highest cash market value on the date of filing the condemnation complaint
or on the date of valuation set by the court. Often, this is the actual and existing use of the
property. However, the highest and best use may also be a use other than the existing use,
provided the property was adaptable to the prospective use and provided the prospective use
“would be anticipated with such reasonable certainty that it would enhance the market value on
that date.” I.P.I. — Civil No. 300.84. See Pittsburgh, C., C. & St. L. Ry. v. Gage, 286 Ill. 213, 121
N.E. 582 (1918). In Crystal Lake Park Dist. v. Consumers’ Co., 313 Ill. 395, 145 N.E. 215, 219
(1924), the Supreme Court stated:
The owner of property appropriated for public use is entitled to its market value for
the most profitable use for which it is available, and any capacity for future use
which may be anticipated with reasonable certainty, though dependent upon
circumstances which may possibly never occur, is competent to be considered by the
jury if it in fact enhanced the market value of the land in its present condition and
state of improvement. The future prospective use affecting value must be a present
capacity for a use which may be anticipated with reasonable certainty and made the
basis of an intelligent estimate of value.
Proving the adaptability of property for another use may include, as in Crystal Lake Park
Dist., proving that the property (swampland on the date of valuation) could be filled and would
then be suitable for residential development. Conversely, a party may introduce evidence showing
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a particular highest and best use is not feasible due to the need to assemble other properties,
obtain permits, and incur prohibitive development costs. Department of Conservation of State of
Illinois v. Dorner, 192 Ill.App.3d 333, 548 N.E.2d 749, 139 Ill.Dec. 364 (1st Dist. 1989). Other
sources of proof may include introducing development plans for the property that were prepared
prior to the condemnation case (Department of Conservation of State of Illinois ex rel. People v.
Kyes, 57 Ill.App.3d 563, 373 N.E.2d 304, 15 Ill.Dec. 34 (2d Dist. 1978)) or demonstrating that
the location of the property is appropriate for the prospective use and had so been considered
prior to the condemnation case (Illinois Light & Power Co. v. Bedard, 343 Ill. 618, 175 N.E. 851
(1931)).
The prospective use cannot be so remote, speculative, or conjectural that it would not affect
the market value on the date of valuation. The key is still what amount the property would sell for
on this date. If additional money would be paid for the possibility of developing the property, the
court should admit this evidence. If additional money would probably not be paid for a
prospective venture, the court should not admit the evidence of the prospective use.
In Peoples Gas Light & Coke Co. v. Buckles, 24 Ill.2d 520, 182 N.E.2d 169 (1962), the
owners predicated value on a theory that their property could be combined with several other
properties to form a gas storage reservoir. But the Supreme Court ruled that any potential value
for such a use was too remote because the use depended on too many speculative factors.
Therefore, testimony based on this use could not be admitted in evidence. Even though the
prospective use may never occur, there must be a present capacity for a use that may be
anticipated with reasonable certainty. City of Chicago v. Lord, 276 Ill. 571, 115 N.E. 397 (1917).
The potential development must be reasonably probable, rather than merely desirable, and must
be likely to occur within a reasonably proximate time, rather than in the future. Lake County
Forest Preserve District v. Bank & Trust Company of Arlington Heights, 106 Ill.App.3d 856, 436
N.E.2d 237, 62 Ill.Dec. 487 (2d Dist. 1982).
If the proposed highest and best use involves a different use than the present use of the
property, and if the different use would require a zoning change, the appraiser must be able to
demonstrate that there was a reasonable probability of obtaining the zoning change. Board of
Trustees of University of Illinois v. Shapiro, 343 Ill.App.3d 943, 799 N.E.2d 383, 278 Ill.Dec. 665
(1st Dist. 2003).
Each side may adopt its own theory of highest and best use. Cook County v. Holland, 3 Ill.2d
36, 119 N.E.2d 760 (1954). A party’s theory of highest and best use is normally conveyed to the
jury through the testimony of its experts. While a party can, no doubt, make pretrial admissions of
highest and best use through its actions or statements, the courts have reviewed these carefully.
See Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co., 196 Ill.App.3d
5, 552 N.E.2d 1151, 142 Ill.Dec. 410 (2d Dist. 1990) (Illinois State Toll Highway Authority’s
(ISTHA) statement of highest and best use of property in environmental impact statement held
not to be admission).
A jury normally decides the highest and best use as a question of fact. However, in an
unusual case, the appellate court held that the question of highest and best use “may be a question
of law for the trial judge when the evidence is so inherently improbable it should be excluded
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from the jury.” [Emphasis in original.] City of Quincy, Illinois v. Diamond Construction Co., 327
Ill.App.3d 338, 762 N.E.2d 710, 716, 261 Ill.Dec. 141 (4th Dist. 2002).
Different parts of a property can also have different highest and best uses. For example, on a
large tract, one part may have a highest and best use of commercial development, and the other
part may be better suited to residential development. Department of Public Works & Buildings of
State of Illinois ex rel. People v. First National Bank of Joliet, 9 Ill.App.3d 633, 292 N.E.2d 487
(3d Dist. 1973). Physical conditions, such as the existence of wetlands on a portion of the
property, may result in different highest and best uses for different portions of the property.
Department of Transportation v. HP/Meachum Land Limited Partnership, 245 Ill.App.3d 252,
614 N.E.2d 485, 185 Ill.Dec. 351 (2d Dist. 1993). The different portions of the property should be
“recognizably distinct from each other” to warrant assigning different highest and best uses.
Department of Transportation, State of Illinois v. Kelley, 352 Ill.App.3d 278, 815 N.E.2d 1214,
1217, 287 Ill.Dec. 411 (3d Dist. 2004).
b. [7.16] Reasonable Probability of Rezoning
Sometimes property may be adaptable for a more profitable use, but it may not be put to that
use on the valuation date because it does not conform to governmental regulations, such as
zoning, permit requirements, etc. In these situations, the courts nevertheless permit the jury to
consider the more profitable use as long as there exists a reasonable probability of obtaining
legislative or administrative relief in the near future. As stated in Lake County Forest Preserve
District v. Petersen, 93 Ill.App.3d 731, 417 N.E.2d 862, 864 – 865, 49 Ill.Dec. 172 (2d Dist.
1981): “The rationale underlying the concept of reasonable probability is that a jury should have
available to it all the facts which private parties would consider in negotiating a sale on the open
market.” If a prospective purchaser would likely give weight to the reasonable probability of
lifting certain government restrictions, then the jury should also be able to consider what effect
this would have on market value. In Petersen, the owner submitted evidence of market value
based on the reasonable probability of obtaining an Environmental Protection Agency permit for
a sanitary landfill.
As far back as 1912, the Supreme Court permitted valuation based on a highest and best use
of property for warehouse purposes that was dependent on the reasonable probability of obtaining
permission from the city council to bring railroad switch tracks across a street to service the
property. Chicago & W.I.R. Co. v. Heidenreich, 254 Ill. 231, 98 N.E. 567 (1912). See also Board
of Trustees of University of Illinois v. Shapiro, 343 Ill.App.3d 943, 799 N.E.2d 383, 278 Ill.Dec.
665 (1st Dist. 2003).
However, most of the developments in this area have been of more recent vintage, and most
reflect contests over the reasonable probability of rezoning or annexing and rezoning property. In
1968, the Supreme Court faced, for the first time, the issue of whether evidence of probability of
rezoning is admissible to determine the value of property in a condemnation proceeding. Citing
with approval the appellate court’s decision in Park District of Highland Park, Illinois v. Becker,
60 Ill.App.2d 463, 208 N.E.2d 621 (2d Dist. 1965), the Supreme Court held a party could adopt a
theory of valuation based on a highest and best use that could be contemplated but that would not
be permitted under existing zoning restrictions. Department of Public Works & Buildings v.
Rogers, 39 Ill.2d 109, 233 N.E.2d 409 (1968). In Department of Transportation v. Western
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National Bank of Cicero, 63 Ill.2d 179, 347 N.E.2d 161, 165 (1976), the Supreme Court followed
this decision by permitting valuation based on a use allowed only under a different zoning
classification “where there is reasonable probability of the granting of such zoning in the near
future.” As a result of the law’s development in this area, the Supreme Court later held that
I.P.I. — Civil No. 300.85 (2d ed. 1971) did not accurately state the law. Department of Public
Works & Buildings v. Association of Franciscan Fathers of State of Illinois, 69 Ill.2d 308, 371
N.E.2d 616, 13 Ill.Dec. 681 (1977). The Illinois Supreme Court Committee on Jury Instructions
in Civil Cases proposed, and in November 1990 the Supreme Court promulgated, a revised
instruction (I.P.I. — Civil No. 300.85):
300.85 Reasonable Probability of Rezoning
If you find that on [insert date complaint was filed] there was a reasonable
probability of rezoning the property, then you may consider the effect of such
rezoning in determining just compensation in this case.
The concept of reasonable probability has been extended to embrace valuation based on
annexation and rezoning. Lake County Forest Preserve District v. Reliance Standard Life
Insurance Co., 29 Ill.App.3d 145, 329 N.E.2d 344 (2d Dist. 1975). Introducing annexation into a
highest and best use theory, though, adds another layer of problems to overcome to demonstrate
the reasonable probability of obtaining government permission for the proposed use and, thus,
adds to the danger of speculation. Lake County Forest Preserve District v. Bank & Trust
Company of Arlington Heights, 106 Ill.App.3d 856, 436 N.E.2d 237, 62 Ill.Dec. 487 (2d Dist.
1982). The Second District rejected an objection of speculation and upheld admission of the
property owners’ reasonable probability of obtaining alternate means of access to the subject
property. Forest Preserve District of DuPage County v. Brookwood Land Venture, 199 Ill.App.3d
973, 557 N.E.2d 980, 146 Ill.Dec. 38 (2d Dist. 1990).
An attorney who attempts to present a case based on a reasonable probability theory must
understand what type of evidence may be introduced to establish the theory and what type of
evidence may not be introduced. If the proper foundation is not laid, the expert may not opine on
the reasonable probability of obtaining a variation, etc. Department of Transportation v. First
Bank of Schaumburg, 260 Ill.App.3d 490, 631 N.E.2d 1145, 197 Ill.Dec. 686 (1st Dist. 1992).
The trial court will not permit a government official’s or attorney’s opinion testimony as to
the reasonable probability of rezoning or as to what the exact rezoning classification would be.
Department of Conservation v. Aspegren Financial Corp., 72 Ill.2d 302, 381 N.E.2d 231, 21
Ill.Dec. 153 (1978). Thus, an attorney cannot present the village president or the head of a plan
commission to testify a zoning change would be granted. Lombard Park District v. Chicago Title
& Trust Co., 103 Ill.App.2d 1, 242 N.E.2d 440 (2d Dist. 1968); Morton Grove Park District v.
American National Bank & Trust Company of Chicago, 39 Ill.App.3d 426, 350 N.E.2d 149 (1st
Dist. 1976). Nor can a party introduce evidence of the intent of officials when they enacted
ordinances or adopted comprehensive plans, although the party can introduce the ordinances and
comprehensive plans themselves. Oak Brook Park District v. Oak Brook Development Co., 170
Ill.App.3d 221, 524 N.E.2d 213, 120 Ill.Dec. 448 (2d Dist. 1988). A party can introduce evidence
of minutes of public hearings when necessary to resolve an ambiguity in a zoning ordinance or an
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apparent conflict between a comprehensive plan and a zoning ordinance. Illinois State Toll
Highway Authority v. Heritage Standard Bank & Trust Co., 250 Ill.App.3d 665, 619 N.E.2d
1321, 189 Ill.Dec. 272 (2d Dist. 1993).
Among the items that may be offered to support such a theory, according to the opinions in
Rogers, supra, Franciscan Fathers, supra, Lombard Park District, supra, and Oak Brook Park
District, supra, are
1. the physical characteristics of the subject property;
2. available utilities to serve the proposed use;
3. the location of the subject property;
4. the change of actual uses in the area;
5. growth patterns in the area;
6. the demand for certain uses in the area;
7. sales of similar properties at prices reflecting anticipated rezonings;
8. the age of the zoning ordinance;
9. the provisional nature of the subject property’s zoning classification;
10. rezonings of nearby properties to show the flexibility of the zoning ordinance;
11. comprehensive and master plans; and
12. ordinances or deed restrictions affecting the property.
Relying on any one of these items, such as the mere submission of other zoning changes to prove
flexibility of the ordinance, may not be sufficient if other items, such as geographic and economic
factors, militate against the proposed use. Bank & Trust Company of Arlington Heights, supra.
Of course, the party opposing the theory may offer evidence to show the possibility of
rezoning cannot be anticipated with reasonable certainty within the reasonably near future and is
too speculative. If a contest develops, the burden of proving the reasonable probability falls on
the proponent of the theory. The accepted procedure is for the trial judge to adopt a two-stage
procedure. Franciscan Fathers, supra. In the first stage, which is held outside the presence of the
jury, the trial judge considers the evidence and decides whether there is sufficient evidence to
make a determination that a reasonable probability exists. If there is, then the second stage
commences, the jury is brought back, and the party presents evidence of reasonable probability
and then presents evidence of market value based on the reasonable probability.
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Since the jurors are the ultimate triers of fact, they make the final determination of whether
there is a reasonable probability of rezoning and whether this would affect market value. The
judge’s determination in the first stage merely permits the evidence to be presented to the jury; it
does not bind the jury. According to the opinion in Petersen, supra:
The underlying reason for this preliminary procedure is that the right to have
compensation determined by a jury contemplates that the jury will be presented
only competent evidence. If the court correctly determines that the evidence is not
competent, there is no right to have such evidence heard by the jury. . . . As a
general rule, the probability of rezoning or other governmental relief is admissible if
the prospect is sufficiently likely so as to have an appreciable influence upon present
market value. . . .
In seeking just compensation the property owner is entitled to consideration by the
jury of evidence which is material, relevant and competent to support his theory of
the case. . . . In the final analysis the question of the trial court’s role in initially
determining whether a sufficient foundation has been laid for the evidence to be
considered by the jury is thus whether it is material, relevant, and competent for
that purpose. [Citations omitted.] 417 N.E.2d at 865.
Petersen, a split decision, also demonstrates the problems of proof that arise in these
considerations.
Whether a party can prove that a reasonable probability of rezoning exists, the condemnor
cannot adopt or rely on an ordinance that denies the rezoning of a property to a more intense use
or downzones a property to a less intense use on the basis that the property may be acquired by a
public body someday. Department of Public Works & Buildings of State of Illinois v. Exchange
National Bank, 31 Ill.App.3d 88, 334 N.E.2d 810 (2d Dist. 1975).
4. [7.17] Unit Rule
As a corollary of the rule requiring a witness to value property as a whole and not as the sum
of its parts, and as a means of preventing the introduction of collateral issues at trial, the Illinois
courts have adopted the unit rule, which prohibits a witness from breaking down his or her
testimony. The unit rule has become one of the more unique, controversial, and misunderstood
elements in eminent domain practice.
In an opinion discussing the unit rule, two of the three appellate judges wrote a concurring
opinion that urged the Supreme Court to “revisit” the unit rule and asserted the unit rule “ignores
realities of land valuation and should give way.” Department of Transportation, State of Illinois
v. Kelley, 352 Ill.App.3d 278, 815 N.E.2d 1214, 1219, 287 Ill.Dec. 411 (3d Dist. 2004)
(Holdridge, P.J., and Schmidt, J., specially concurring). Unfortunately, the Supreme Court did not
accept their invitation. The appellate court held the unit rule bars an appraiser from valuing a
large parcel by “dividing indistinct portions of the whole” and assigning a separate value to each
portion. 815 N.E.2d at 1215. The rule does not bar appraisers from valuing some portions of the
whole property differently than other portions, provided the different parts “are recognizably
distinct from each other.” 815 N.E.2d at 1217. The appellate court attempted to explain the unit
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rule in Department of Transportation v. East Side Development, L.L.C., 384 Ill.App.3d 295, 892
N.E.2d 136, 322 Ill.Dec. 889 (3d Dist. 2008).
In an effort to clear some of the cloud surrounding the unit rule controversy, it may be helpful
to examine the origin and development of the rule. Article I, §15, of the Illinois Constitution and
the Fifth Amendment to the United States Constitution require the payment of just compensation
to an owner for a taking. The measure of just compensation is most often the “fair [cash] market
value of” the property. Housing Authority of City of East St. Louis v. Kosydor, 17 Ill.2d 602, 162
N.E.2d 357, 359 (1959). Section 10-5-60 of the Eminent Domain Act defines “fair cash market
value” as the “amount of money that a purchaser, willing, but not obligated, to buy the property,
would pay to an owner willing, but not obliged, to sell in a voluntary sale.” 735 ILCS 30/10-5-60.
Thus, the focus of an eminent domain case is the market value of the property itself, not what the
owner has lost or what the condemnor has gained.
From these principles comes the unit rule — a rule of valuation that is often misunderstood.
There are two elements of the unit rule:
a. The property should be valued as if sold as a single entity and not as if sold as individual
parts.
b. The property should be valued as if title were held by a single person even if there are
multiple interests.
The unit rule prohibits an appraiser from aggregating the values of separate parts of the
property to reach a value of the whole property. The appraiser can consider the value of the
property’s constituent parts only insofar as they affect the value of the whole property. This
application of the unit rule is reflected in Standards Rule 1-4(e) of the UNIFORM STANDARDS
OF PROFESSIONAL APPRAISAL PRACTICE (Appraisal Foundation, 2016 – 2017),
www.uspap.org, which states:
When analyzing the assemblage of the various estates or component parts of a
property, an appraiser must analyze the effect on value, if any, of the assemblage.
An appraiser must refrain from valuing the whole solely by adding together the
individual values of the various estates or component parts.
Most often, questions about this part of the unit rule arise when the property has valuable
mineral or agricultural interests. The first case discussing this application is Peoria, B. & C.
Traction Co. v. Vance, 234 Ill. 36, 84 N.E. 607 (1908). The Supreme Court expanded on the
application of the unit rule 13 years later, in 1921, when it decided Forest Preserve Dist. of Cook
County v. Caraher, 299 Ill. 11, 132 N.E. 211, 213 (1921), and stated:
The rule is that compensation must be estimated for the land as land, with all its
capabilities, and if there is timber on it, or coal, oil, or other minerals under the
surface, they are to be considered so far as they affect the value of the land, but they
cannot be valued separately.
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This is the classic statement of the unit rule in this context and was later reiterated by the
Supreme Court in such cases as Department of Public Works & Buildings v. Oberlaender, 42
Ill.2d 410, 247 N.E.2d 888 (1969) (property with valuable sand deposits), and Department of
Transportation v. Toledo, Peoria & Western R.R., 75 Ill.2d 436, 389 N.E.2d 546, 27 Ill.Dec. 482
(1979) (property with fill material). Note, however, the interesting refusal to apply the unit rule
when the condemnor acquires not the fee simple title to the property but only title to the mineral
deposits themselves. Department of Transportation ex rel. People v. Farnsworth, 273 Ill.App.3d
631, 653 N.E.2d 423, 210 Ill.Dec. 518 (3d Dist. 1995).
The other classic application of the unit rule is that the property is to be valued as a whole
even if its ownership is divided into various interests. The most common situation in which this
occurs is when the property is subject to a lease. Here, the court should follow a two-step process.
First, the trier of fact needs to determine the market value of the property irrespective of the
ownership rights in it. Then, if the holders of the various ownership interests cannot agree on how
to split up the award of just compensation, the trier of fact needs to determine who is entitled to
what. Department of Transportation v. White, 264 Ill.App.3d 145, 636 N.E.2d 1204, 201 Ill.Dec.
772 (5th Dist. 1994).
There is one exception to this rule. When the property is subject to a public easement (e.g.,
when a portion of the property has been previously dedicated for a public right-of-way), then an
appraiser can take that fact into account and attribute a value to that part of the fee subject to the
dedication. City of Springfield, Illinois v. West Koke Mill Development Corp., 312 Ill.App.3d 900,
728 N.E.2d 781, 245 Ill.Dec. 699 (4th Dist. 2000).
a. [7.18] Partial Takings
The Illinois courts have extended the concept of the unit rule to the valuation of the part taken
in a partial taking situation. On the surface, the rule seems straightforward. I.P.I. — Civil No.
300.44 provides: “In arriving at the fair cash market value of the property taken, you should
determine its value considered as a part of the whole tract before the taking and not its value as a
piece of property separate and disconnected from the rest of the tract.” Frequently cited cases
discussing this approach include Department of Public Works & Buildings v. Lotta, 27 Ill.2d 455,
189 N.E.2d 238 (1963), and Department of Transportation ex rel. People v. Central Stone Co.,
200 Ill.App.3d 841, 558 N.E.2d 742, 146 Ill.Dec. 779 (4th Dist. 1990). A 2014 decision involving
the application of the unit rule in partial taking situations is Department of Transportation ex rel.
People v. Raphael, 2014 IL App (2d) 130029, 9 N.E.3d 1120, 381 Ill.Dec. 1.
However, as a practical matter, the valuation of a part taken, especially a part taken that
includes improvements such as landscaping, signs, and pavement, is not so easy for an appraiser.
The reason is there are no sales of such property to use as a basis for a market approach to
valuation. Who would buy a 17-foot-wide strip of land at the edge of a gasoline service station? It
may be easy to find sales of comparable service stations but impossible to find sales of 17-footwide strips at the edge of a service station. Most appraisers attempt to estimate a value for such a
partial taking by looking at vacant land values (to get an idea of the value of land in the area) and
the depreciated value of the improvements in the part taken (to get an idea of the value of the
improvements in the area). At most, they come up with a hypothetical value for a piece of
property that really has no market value.
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This reality, the lack of any market value for most strip takings, seems to have been
overlooked by the appellate court in Department of Transportation v. First Bank of Schaumburg,
260 Ill.App.3d 490, 631 N.E.2d 1145, 197 Ill.Dec. 686 (1st Dist. 1992). The court frowned on an
approach to valuing the part taken that included valuing the land based on sales of comparable
vacant land and adding to it the “contributory value of those improvements” within the part taken.
631 N.E.2d at 1149. Citing the unit rule, the court concluded that the value of improved property
must be undertaken without assignment of separate costs and values. How an appraiser is to do
this in a partial taking is not explained.
At issue in Raphael, supra, was whether the appraiser had properly considered the
contributory value of the improvement located on the remainder property when valuing the part
taken. The appellate court described the unit rule in partial takings as follows:
The unit rule provides that, in partial takings, the part taken must be valued as part
of the whole, considering its best use. . . . However, not every part of a tract will be
as valuable as other parts. . . . Thus, the unit rule does not require the whole
property to be valued on a single proportionate per-square-foot basis, ignoring the
difference between the values of the part taken and the remainder. [Citations
omitted.] 2014 IL App (2d) 130029 at ¶18.
While the appellate court’s summary of the unit rule appears to be straightforward, the
application of the unit rule to actual takings remains difficult. The Raphael court held both the
owner’s appraiser and the Illinois Department of Transportation’s appraiser had violated the unit
rule: the owner’s appraiser for assigning a uniform square-foot value over the whole property,
and IDOT’s appraiser for failing to consider the contributory value of improvements on the
remainder when valuing the part taken.
b. [7.19] Unit Rule and Expert Cross-Examination
Several court decisions attempted to invoke the unit rule in support of limitations on the
scope of cross-examination of appraisal witnesses. For example, in Metropolitan Sanitary District
of Greater Chicago v. Industrial Land Development Corp., 121 Ill.App.2d 393, 257 N.E.2d 532
(1st Dist. 1970), the appellate court affirmed the trial court’s ruling that barred the crossexamination of an appraiser as to how he had appraised the property using the income approach.
Acknowledging that the Supreme Court had approved use of the three classic valuation
techniques (the comparable-sales approach, the income approach, and the cost approach) under
appropriate circumstances, the appellate court nevertheless stated that “the separate values or
results under such methods are not admissible and cannot be made the sole basis of valuation.”
257 N.E.2d at 535. See also Department of Transportation of State of Illinois ex rel. People v.
Schlechte, 94 Ill.App.3d 187, 418 N.E.2d 1000, 50 Ill.Dec. 6 (5th Dist. 1981). This limitation
seems grounded in the concern of courts that introducing the underlying computations of the
appraiser could confuse the jury and possibly lead the jury to conclude the value of the property
was merely the sum of the different component elements in the appraiser’s analysis. See
Department of Public Works & Buildings v. Lotta, 27 Ill.2d 455, 189 N.E.2d 238 (1963).
However, this restriction on cross-examination is inconsistent with the modern approach to
expert testimony, which permits extensive cross-examination, and pronouncements in other
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Supreme Court cases. Ill.R.Evid. 705 expressly permits cross-examination of an expert on the
underlying facts or data. Previously, in City of Chicago v. Anthony, 136 Ill.2d 169, 554 N.E.2d
1381, 144 Ill.Dec. 93 (1990), the Illinois Supreme Court reaffirmed its earlier adoption of
Fed.R.Evid. 703 and 705, which clearly contemplate a full exposition of the basis of an expert’s
testimony, whether through direct or cross-examination. Often, the objectionable nature of expert
testimony may not become apparent until it is subject to cross-examination. See Central Illinois
Public Service Co. v. Gibbel, 65 Ill.App.3d 890, 382 N.E.2d 846, 22 Ill.Dec. 456 (4th Dist. 1978).
See also Department of Transportation ex rel. People v. Central Stone Co., 200 Ill.App.3d 841,
558 N.E.2d 742, 750, 146 Ill.Dec. 779 (4th Dist. 1990) (Green, J., specially concurring) (pointing
out that basis for objection to expert testimony became clear only from cross-examination). The
drafters of the Illinois and Federal Rules of Evidence had faith in the intelligence of jurors and
their ability to understand expert testimony. The unit rule, originally a rule of valuation, does not
easily translate into a rule of cross-examination.
The Illinois Supreme Court in Anthony, supra, cited the unit rule with approval in support of
its decision to uphold a trial court’s exclusion of testimony concerning the future rental income
that could be derived from leasing a small portion of the subject property to a billboard company.
The Supreme Court stated:
The motion judge found the property must be valued as a whole, and a lease may
not be separately valued as one part to be added to another part. This ruling is
consistent with the unit rule of valuation in eminent domain cases, which requires
that property be valued as a whole. Because the “measure of recovery for damage to
private property caused by a public improvement is the loss which concerns the
property itself . . . the fair market value of improved property is not the sum of the
value of the building and the value of the land computed separately.” [Lotta, supra,
189 N.E.2d at 240.] The unit rule is applied in eminent domain cases to avoid
misleading the jury. 554 N.E.2d at 1384.
In decisions following Anthony, the appellate courts have reasserted the unit rule. Department
of Transportation v. First Bank of Schaumburg, 260 Ill.App.3d 490, 631 N.E.2d 1145, 197
Ill.Dec. 686 (1st Dist. 1992) (held error for appraiser to value part taken by merely adding value
of land and contributing value of improvements on part taken); Department of Transportation v.
White, 264 Ill.App.3d 145, 636 N.E.2d 1204, 201 Ill.Dec. 772 (5th Dist. 1994). In a third decision
following Anthony, the appellate court cited the unit rule but held that the appraiser had valued
the property as a whole. County of St. Clair v. Wilson, 284 Ill.App.3d 79, 672 N.E.2d 27, 219
Ill.Dec. 712 (5th Dist. 1996). A more recent decision, in which the appellate court held that
valuing different portions of a property differently would not necessarily violate the unit rule, is
Department of Transportation, State of Illinois v. Kelley, 352 Ill.App.3d 278, 815 N.E.2d 1214,
287 Ill.Dec. 411 (3d Dist. 2004).
Despite the appellate courts’ reaffirmation of the unit rule, several questions remain
unanswered arising out of the tension between the unit rule, which may preclude examination of
an expert on certain subjects to avoid jury confusion, and the Illinois and Federal Rules of
Evidence, which seek to widen the scope of expert examination.
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The decisions in both Anthony, supra, and Department of Transportation v. Beeson, 137
Ill.App.3d 908, 485 N.E.2d 511, 92 Ill.Dec. 700 (2d Dist. 1985), applied Fed.R.Evid. 703 and 705
to valuation testimony. One of the policies underlying the federal rules governing expert witness
testimony is “to broaden the basis for expert opinions beyond that current in many jurisdictions
and to bring the judicial practice into line with the practice of the experts themselves when not in
court.” Advisory Committee Notes, 1972 Proposed Rules, Fed.R.Evid. 703.
The drafters of the Federal Rules of Evidence decided the counterweight to loosening the
artificial constraints on expert testimony was expanding the scope of cross-examination of the
expert. Fed.R.Evid. 705 specifically provides: “[T]he expert may be required to disclose those
facts or data on cross-examination.” If the expert actually made calculations in arriving at an
opinion of value, then the policy stated in Fed.R.Evid. 703 and in the accompanying Advisory
Committee Notes would appear to justify revelation of the calculations.
For example, cross-examination on the underlying figures in an income approach was
prohibited in Metropolitan Sanitary District, supra, 257 N.E.2d at 535 – 536. This decision also
demonstrates the difficulty, and some would say the contradiction, in applying the unit rule.
Although the appellate court upheld the trial court’s decision to sustain an objection, based on the
unit rule, to the question, “How did you appraise the property with regard to the income method
of appraising?,” in another part of the same opinion the appellate court approved crossexamination as to the lease on the subject property by citing the Supreme Court’s decision in
Spohr v. City of Chicago, 206 Ill. 441, 69 N.E. 515, 516 – 517 (1903), which stated, “the crossexaminer is entitled in every instance to demand a free disclosure, minutely and in detail. . . . [S]o
far as the cross-examination . . . relates either to facts in issue or facts relevant to the issue, it may
be pursued as a matter of right.” 257 N.E.2d at 535 – 536.
Since the adoption of Fed.R.Evid. 703 and 705 by judicial fiat in Wilson v. Clark, 84 Ill.2d
186, 417 N.E.2d 1322, 49 Ill.Dec. 308 (1981), the Supreme Court has emphasized the importance
of wide-ranging cross-examination. Trower v. Jones, 121 Ill.2d 211, 520 N.E.2d 297, 299, 117
Ill.Dec. 136 (1988) (“Cross-examination has been made more difficult in part by the increased
latitude given experts when rendering their opinions. . . . Although we view this expansion as
prudent, we do recognize the added burden which these changes place upon a party during crossexamination in attempting to discredit his opponent’s expert, and we also recognize that these
changes heighten the importance of such cross-examination.”). In People v. Pasch, 152 Ill.2d
133, 604 N.E.2d 294, 178 Ill.Dec. 38 (1992), the Supreme Court approved cross-examination on
the contents of reports and conclusions of other experts regardless of whether the expert relied on
them, cross-examination with respect to material reviewed by the expert but on which he or she
did not rely, and cross-examination to ascertain what factors the expert took into account and
what factors the expert disregarded in arriving at an opinion. No doubt future courts will be called
on to square these principles with the restrictive cross-examination espoused in some unit rule
cases. See First Bank of Schaumburg, supra, 631 N.E.2d at 1149 (“Accordingly, it is improper to
cross-examine a witness regarding the separate values of land and improvements, and the
admission of specific figures for these components constitutes palpable and reversible error.”).
Ill.R.Evid. 705, similar to Fed.R.Evid. 705, states, in relevant part: “The expert may in any
event be required to disclose the underlying facts or data on cross-examination.” The Illinois
Supreme Court’s adoption of Ill.R.Evid. 705 would appear to encourage, rather than limit, full
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and complete cross-examination of a witness. Although not a unit rule case, the appellate court’s
opinion in a 2015 case, City of Chicago v. Eychaner, 2015 IL App (1st) 131833, 26 N.E.3d 501,
389 Ill.Dec. 411, emphasizes the need for full cross-examination directed to all the facts and data
supporting an appraiser’s opinion.
B. Other Aspects of Just Compensation
1. [7.20] Interest as Just Compensation
The constitutional right to be paid just compensation includes not only compensation based
on the fair market value of the property but also payment of interest at a fair rate for any delay
between the condemnor’s taking of the property and the condemnor’s payment of full and final
compensation for the taking. Illinois State Toll Highway Authority v. American National Bank &
Trust Company of Chicago, 162 Ill.2d 181, 642 N.E.2d 1249, 205 Ill.Dec. 132 (1994).
In Illinois eminent domain proceedings, this delay between the taking and full payment can
occur when the condemnor uses the quick-take power. For example, in American National Bank,
the Illinois State Toll Highway Authority obtained title and possession of property in 1987 and
1988 by depositing with the county treasurer the total preliminary just compensation award of
$176,300. However, the trial to determine the final just compensation did not take place until
later, and then the jury determined that the market value for the property being taken was
$603,571. Thus, the difference between the preliminary and final just compensation for the taking
was $427,271. Section 20-5-30 of the Eminent Domain Act (former 735 ILCS 5/7-105 and
former Ill.Rev.Stat. (1991), c. 110, ¶7-108) directs the condemnor to pay a six-percent statutory
rate of interest on the difference between the preliminary and final compensation. 735 ILCS
30/20-5-30. However, what if the prevailing market rates of interest exceed six percent during
this period? If there is a substantial difference between the statutory interest rate of six percent
and the prevailing market rate, the owner would not be fully compensated for the $427,271
shortfall during the period between the condemnor’s taking and the condemnor’s full payment.
In American National Bank, the Supreme Court held that both the Fifth Amendment of the
U.S. Constitution and Article I, §15, of the Illinois Constitution mandate the payment of interest
when the state takes property before making full payment. Further, the Supreme Court ruled that
the six-percent statutory interest rate acted only as a floor, not a ceiling. To determine the
appropriate rate of interest to apply to the difference between the preliminary and final
compensation, the Supreme Court rejected any reliance on the rate of return on real estate
investments; instead, it referred to yields from high-grade corporate bonds and yields from
government securities, such as Treasury bonds.
Finally, American National Bank held that the parties have a right to a jury determination of
the amount of interest to be paid on the difference between the preliminary and final just
compensation. This pronouncement settled the apparent discrepancy between the appellate
court’s opinion in Department of Transportation of State of Illinois ex rel. People v. Rasmussen,
108 Ill.App.3d 615, 439 N.E.2d 48, 64 Ill.Dec. 119 (2d Dist. 1982), which appeared to require a
jury determination of the issue, and the appellate court’s opinion in Department of Transportation
of State of Illinois ex rel. People v. Gass, 165 Ill.App.3d 562, 519 N.E.2d 90, 116 Ill.Dec. 500
(5th Dist. 1988), which ruled the trial court, rather than the jury, must determine the proper rate of
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interest as a supplemental question of law. The Supreme Court’s American National Bank
opinion establishes the right to a jury trial, thereby overruling the apparent opinion in Gass and
portions of the appellate court’s opinion in Department of Transportation of State of Illinois v.
Carriage Hills Kennels, 255 Ill.App.3d 43, 627 N.E.2d 303, 194 Ill.Dec. 187 (1st Dist. 1993).
American National Bank also states that if the parties do not request a jury trial on the interest
issue, they have waived their right, and the trial court can determine the proper rate of interest.
However, the Supreme Court does not give satisfactory guidance on the procedures to be
followed in obtaining a jury determination of the appropriate rate of interest. The Supreme
Court’s opinion states:
In the matter before us, the Highway Authority did make an appropriate jury
demand, and a jury trial was held to obtain a final determination of the amount of
just compensation owed to the landowners. Based on the authorities we have just
discussed, it is clear that the amount of interest due on the difference between the
amount of just compensation finally adjudicated and the amount preliminarily
found by the court to be just compensation could therefore have been submitted to
the jury at that trial as part of its final determination as to just compensation. 642
N.E.2d at 1254.
This is easier said than done because determination of the proper rate of interest may vary with
the size of the sum involved, i.e., large sums typically earn higher rates than small sums.
Therefore, to make this determination, the jury must know the size of the difference between the
final just compensation set by it and the preliminary just compensation set by the trial court. Such
knowledge of the preliminary just compensation, though, runs squarely against the statutory
prohibition against advising the jury of the amount of preliminary just compensation. 735 ILCS
30/20-5-10(d). The only ways to avoid this problem are to have a bifurcated trial or a separate
trial.
Rasmussen, supra, which is favorably cited by the Supreme Court in American National
Bank, held the constitutional right to be paid a market rate of interest applies only to the payment
for the part taken, not for damages to the remainder. By contrast, the statute directing payment of
six-percent interest on the difference between the preliminary and final just compensation does
not distinguish payment for the part taken from damages. That part of the Supreme Court’s
opinion in American National Bank relating to interest does not address the question of whether
the Rasmussen court drew a proper constitutional distinction between just compensation for the
part taken and damages to the remainder.
The Second District refused to apply the Rasmussen reasoning to a non-quick-take situation.
Waukegan Port District v. Kyritsis, 128 Ill.App.3d 751, 471 N.E.2d 217, 83 Ill.Dec. 918 (2d Dist.
1984).
As the size of condemnation awards and, hence, the size of interest earned on those awards
have increased, the courts have been confronted with questions concerning the right to interest
earned by the county treasurer on the award after the condemnor has deposited it. After receiving
the deposit in accordance with 735 ILCS 30/10-5-85, the county treasurer may place the funds in
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an interest-bearing account. Note, however, that the treasurers of some counties may not do so
unless specifically directed by court order. Who is entitled to the interest earned between the date
of deposit and the date of withdrawal: the county treasurer or the property owner?
Traditionally, the county treasurer kept the interest. In Locasio v. Rosewell, 50 Ill.App.3d
704, 365 N.E.2d 949, 8 Ill.Dec. 563 (1st Dist. 1977), the appellate court upheld the county
treasurer’s right to the interest on the grounds that (a) the predecessor to §10-5-85 (entitled
“Interest Payments”) did not provide for payment of interest after deposit to the property owner
and (b) the relationship between the property owner and the county treasurer was akin to a debtorcreditor relationship rather than a fiduciary relationship, and as a result the county treasurer owed
the property owner only the duty to preserve the deposit.
Three years after Locasio, the Illinois Supreme Court rejected the appellate court’s rationale,
although it did not explicitly overrule the case, in Morton Grove Park District v. American
National Bank & Trust Co., 78 Ill.2d 353, 399 N.E.2d 1295, 1299, 35 Ill.Dec. 767 (1980). The
park district condemned the defendant’s property. After a jury verdict established final just
compensation, the park district deposited with the county treasurer the sum of the jury’s award
and statutory interest on that award from the date of judgment to the date of deposit. The park
district then took possession of the property. The owner appealed the amount of the verdict, but
during the course of the appeal the owner could not withdraw the deposited funds, for to do so
would render the appeal moot under the holding in County of Cook v. Malysa, 39 Ill.2d 376, 235
N.E.2d 598 (1968). Upon completion of the appellate proceedings, the owner filed a petition to
withdraw that sought not only the funds the condemnor had deposited but also the interest earned
on those funds.
In its opinion, the Supreme Court noted that since the condemnor’s deposit with the county
treasurer acts as a substitute for the condemned property, the deposit constitutes the owner’s
property, and the interest earned on these funds is “a mere incident of ownership of the fund
itself.” Morton Grove Park District, supra, 399 N.E.2d at 1299. To allow the county treasurer to
keep this interest would constitute a taking of private property for public use without just
compensation. As a result, the owner was entitled to the full amount of interest that had been
earned on the deposited funds.
Undoubtedly, the inequity involved in having the condemnee lose the use of both the property
and the condemnation award during the pendency of the appeal concerned the Supreme Court.
Since the Supreme Court had not mentioned Locasio, supra, in its opinion, the question remained
as to whether Morton Grove Park District applied to situations other than appeals and, by
extension, whether Locasio retained any life.
In O-Kay Shoes, Inc. v. Rosewell, 129 Ill.App.3d 405, 472 N.E.2d 883, 84 Ill.Dec. 746 (1st
Dist. 1984), the appellate court examined this issue and read the Morton Grove Park District,
supra, reasoning as being applicable to all interest earned on condemnation funds, regardless of
whether an appeal was involved. Holding that the county treasurer must pay all interest earned on
a condemnation award from the time of deposit to the time of withdrawal, the appellate court
concluded the Morton Grove Park District opinion had, by implication, overturned Locasio,
supra.
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This line of reasoning finds support in non-condemnation situations. For example, in Canel v.
Topinka, 212 Ill.2d 311, 818 N.E.2d 311, 288 Ill.Dec. 623 (2004), the Supreme Court ruled that
dividends earned on stock held by the State Treasurer under the Uniform Disposition of
Unclaimed Property Act, 765 ILCS 1025/0.05, et seq., belong to the stock owner rather than the
state.
2. [7.21] Attorneys’ Fees and Litigation Costs
Section 10-5-110 of the Eminent Domain Act opens up the possibility for owners or tenants
to recover their attorneys’ fees and certain litigation expenses in the condemnation proceeding.
735 ILCS 30/10-5-110. Prior Illinois law, following the American rule, required each side to pay
its own attorneys’ fees and expenses in condemnation litigation, regardless of the outcome. This
is true in most other states. A very limited number of states, including Florida, have fee- and costshifting provisions that can require the condemning authority to bear the owner’s and tenant’s
attorneys’ fees and expenses. Section 10-5-110 takes a middle road and is based on the fee- and
cost-shifting provisions found in Federal Rule of Civil Procedure 68, entitled “Offer of
Judgment.”
This section of the EDA applies to takings only when the acquired property will be owned or
controlled by a private entity, i.e., those takings classified in 735 ILCS 30/5-5-5(c) through 30/55-5(f). This section does not apply to takings in which the acquired property will be owned and
controlled by a public entity, i.e., those takings classified in §5-5-5(b).
If §10-5-110 is applicable to a condemnation proceeding, it operates in the following fashion:
a. After the conclusion of discovery but at least 14 days before trial, the owner may submit
a written offer of settlement to the condemning authority to settle the case for a specific amount.
735 ILCS 30/10-5-110(b).
b. If the condemning authority accepts the offer, the case is settled.
c. If the condemning authority rejects the offer, the case goes to trial.
d. If the trier of fact at the trial (the jury or the judge) determines that the just compensation
(fair market value of taken property plus damages to the remainder in a partial acquisition) is
equal to, or in excess of, the offer of settlement, then the owner is entitled to recover attorneys’
fees and certain litigation costs.
e. The attorneys’ fees awarded to the owner are calculated in a contingent-fee fashion by
applying a sliding percentage to the difference between the condemning authority’s last offer
before filing the condemnation case and the just compensation award at trial. For example, if the
condemning authority had offered $100,000 before filing the condemnation case and the jury
verdict for the taking was $160,000, the difference would be $60,000. The section requires the
condemning authority to pay one third of that difference, in this case $20,000, to the owner for
attorneys’ fees. 735 ILCS 30/10-5-110(f).
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f. If the just compensation award exceeds the offer of settlement, the condemning authority
must also pay to the owner the reasonable costs and litigation expenses, such as appraisal fees,
incurred by the owner after making the offer of settlement.
Again, this section is triggered only when the just compensation award at trial exceeds the
owner’s rejected offer of settlement. If the just compensation award at trial is less than the offer
of settlement, the owner is responsible for all of his or her attorneys’ fees and litigation costs, as
usual under the American rule.
3. [7.22] Relocation Assistance
The payment of fair cash market value meets the constitutional standard of just
compensation. United States v. General Motors Corp., 323 U.S. 373, 89 L.Ed 311, 65 S.Ct. 357
(1945); City of Chicago v. Cunnea, 329 Ill. 288, 160 N.E. 559 (1928). But governmental bodies
may voluntarily provide for payments to owners in excess of the constitutional standard if they
conclude as a matter of public policy that the fairness of making such additional payments to an
owner outweighs the additional costs placed on the condemning authority. Congress reached such
a conclusion when it enacted the federal Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970. This statute mandates the payment to displaced persons —
whether owners or tenants — of certain expenses, such as relocation costs, rent differentials,
replacement housing differentials, etc., that the person may incur with moving from a property
that has been acquired. The condemning authority pays these expenses through administrative
proceedings separate and apart from the compensation paid in the condemnation case. State and
local condemning authorities must follow the reimbursement provisions of the URA when they
are using federal funds in their projects.
Illinois formerly did not have a state version of the URA. As a result, prior to the 2007
adoption of the Eminent Domain Act, relocation assistance was not available to owners or tenants
if the condemnation was for a project not using federal funds.
Section 10-5-62 of the EDA requires that all condemning authorities, regardless of whether
federal funds are involved, pay to displaced persons relocation costs determined in accordance
with the federal URA. 735 ILCS 30/10-5-62. This removes the former discrepancy in treatment of
owners and tenants. This provision applies regardless of whether the taking is for public
ownership or for private ownership or control. Illinois has adopted the relocation assistance
provisions of the federal URA. While the determination of the amount of relocation assistance is
made on an administrative basis outside the condemnation proceeding, an attorney representing
an owner should be aware of this additional source of compensation.
C. Fair Cash Market Value
1. [7.23] Determining Fair Cash Market Value
Section 10-5-60 of the Eminent Domain Act defines the term “fair cash market value” as “the
amount of money that a purchaser, willing, but not obligated, to buy the property, would pay to
an owner willing, but not obliged, to sell in a voluntary sale.” 735 ILCS 30/10-5-60. This
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definition is consistent with the Supreme Court’s prior construction of the term. In Housing
Authority of City of East St. Louis v. Kosydor, 17 Ill.2d 602, 162 N.E.2d 357, 359 (1959), the
Supreme Court observed:
The value to the owner of the property taken or damaged for his particular
purposes, or its value to the condemnor for some special use, [has] been rejected in
favor of the “market value” of the property at the highest and best use to which it is
adapted. . . . This objective standard has been adopted in most jurisdictions. . . .
Market value is the price which property would bring if it were offered for sale by a
willing seller to a willing buyer. . . . In most instances the condemnee’s investment is
compensated by valuing his property at the highest and best use to which it is
presently adapted, even though it is not being applied to that use. . . . At times he
will even turn a profit on his investment. . . . But the constitution requires only that
the owner obtain the fair market value of his property. . . . [I]t it does not guarantee
him a return of his investment. [Citations omitted.]
The focus is on the property itself. The market value concept excludes any special value to
the owner for his or her particular purpose or any special value to the condemnor for its special
use. City of Chicago v. Harrison-Halsted Building Corp., 11 Ill.2d 431, 143 N.E.2d 40 (1957);
Chicago & Illinois Midland Ry. v. Crystal Lake Industrial Park, Inc., 225 Ill.App.3d 653, 588
N.E.2d 337, 167 Ill.Dec. 696 (3d Dist. 1992).
Market value also means that the property must be valued in its physical condition on the
valuation date. An appraiser may not assume a proposed, but not constructed, improvement has
actually been constructed on the valuation date. Southwestern Illinois Development Authority v.
Al-Muhajirum, 348 Ill.App.3d 398, 809 N.E.2d 730, 284 Ill.Dec. 164 (5th Dist. 2004).
Although the law determines what elements may be considered in proving market value, the
actual proof is a question of fact and must be proved like any other fact. Peoples Gas Light &
Coke Co. v. Buckles, 24 Ill.2d 520, 182 N.E.2d 169 (1962). Among the elements that may be
considered are the size, shape, location, topography, zoning, utilities, use, and improvements on
the property. Admissions as to the value of property made by the owner are also admissible if
sufficiently near the valuation date to be of use to the jury. Oak Brook Park District v. Oak Brook
Development Co., 170 Ill.App.3d 221, 524 N.E.2d 213, 120 Ill.Dec. 448 (2d Dist. 1988). The
parties may also submit sales of comparable properties and offer the opinion testimony of real
estate experts.
As discussed in the following sections, there are three classic approaches to appraising real
estate: (a) the market or comparable-sales approach; (b) the cost approach; and (c) the income
approach. UNIFORM STANDARDS OF PROFESSIONAL APPRAISAL PRACTICE
(Appraisal Foundation, 2016 – 2017), www.uspap.org, Standards Rule 1-4(a) through 1-4(c).
Appraisers should use the comparable-sales approach whenever possible. However, there is no
requirement that an appraiser use all three approaches CNB Bank & Trust, N.A. v. Rosentreter,
2015 IL App (4th) 140141, 39 N.E.3d 337, 395 Ill.Dec. 870.
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a. [7.24] Market or Comparable-Sales Approach
At the outset, a confusion in terminology exists between the fair cash market value of
property and the market approach to determining value. The market approach is simply one of
three methods, the other two being the cost and income approaches, that may be used to reach an
opinion of the fair cash market value of property. But the Illinois courts strongly prefer the
market approach to any other method of determining value. Sometimes the market approach is
referred to as the comparable-sales approach.
Use of the market approach involves identifying sales of other properties and then comparing
those sales to the condemned property to arrive at an opinion of the fair cash market value of the
condemned property. Information about the sales may be presented to the jury either as
independent evidence of market value by separately introducing the sale through the testimony of
a person who participated in the sale or as part of the basis for the expert’s opinion by having the
expert describe the sale and compare it to the condemned property.
When evidence of another sale is offered as independent evidence of the value of the
condemned property, the party offering the evidence has the burden of demonstrating that the sale
property is comparable to the subject property. City of Evanston v. Piotrowicz, 20 Ill.2d 512, 170
N.E.2d 569 (1960). If the other side contests the sale’s comparability, then the trial court must
conduct a hearing outside the jury’s presence, at which time the proponent presents direct
evidence of the sale through a broker, attorney, or other person involved in the sale. If the trial
court finds that the proffered sales were “voluntary sales of similar parcels occurring in the same
vicinity at or about the time of filing” (City of Chicago ex rel. Schools v. Blanton, 15 Ill.2d 198,
154 N.E.2d 242, 244 (1958)), the trial court admits the sales as collateral evidence of value. The
proponent then directly presents the sales evidence to the jury. The decision to admit or exclude
comparable-sales evidence is within the court’s discretion. Further, even if the court improperly
admits or excludes sales, this may be harmless error. Department of Transportation v. Chicago
Title & Trust Co., 303 Ill.App.3d 484, 707 N.E.2d 637, 236 Ill.Dec. 510 (1st Dist. 1999).
The opposing party may object to the introduction of evidence concerning a sale on the basis
that it is not comparable. But if the objection is made and overruled, the party must preserve the
objection throughout the trial to base an appeal on the ruling. In Kassnel v. Village of Rosemont,
135 Ill.App.3d 361, 481 N.E.2d 849, 855, 90 Ill.Dec. 49 (1st Dist. 1985), the owner’s counsel
objected to the introduction of comparable-sales evidence during the trial; however, in final
argument, the owner’s counsel advised the trial court: “So, you can consider these sales and you
can to the extent necessary to figure out what you believe are the similar factors or screen out the
others and come to a decision as to what is fair and just for this land owner.” The appellate court
held that, by reason of this statement, the owner had waived any objection to the admission of the
sales evidence.
Some sales of properties are not admissible even if the sales properties themselves are
comparable to the condemned property. Sales made under the threat of condemnation are
considered to be the result of forced transactions, rather than voluntary ones. South Park Com’rs
v. Ayer, 237 Ill. 211, 86 N.E. 704 (1908); Oak Brook Park District v. Oak Brook Development
Co., 170 Ill.App.3d 221, 524 N.E.2d 213, 120 Ill.Dec. 448 (2d Dist. 1988). Evidence of
assemblage sales may also be inadmissible if the buyer pays a premium to acquire the property to
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complete the assemblage. Trustees of Schools of Township Number 37 North Range Number 13
East, Cook County, Illinois v. Chicago City Bank & Trust Co., 126 Ill.App.2d 302, 262 N.E.2d 80
(1st Dist. 1970). In both these situations, the sale price may not reflect true market value, and,
therefore, the sale is not relevant to determining the market value of the condemned property. If
the sale price reflects the market value of the property, then evidence of the sale, even if an
assemblage, may be admitted. People ex rel. Department of Transportation v. Birger, 155
Ill.App.3d 130, 507 N.E.2d 1321, 107 Ill.Dec. 952 (5th Dist. 1987).
For an example of the use of poor comparable sales that led to the barring of an appraiser’s
opinion, see Board of Trustees of University of Illinois v. Shapiro, 343 Ill.App.3d 943, 799
N.E.2d 383, 278 Ill.Dec. 665 (1st Dist. 2003). Here, the appraiser improperly used sales made
under the threat of condemnation and sales of improved property when the subject property was
vacant. The appellate court denounced the use of improved comparable sales in a vacant land
appraisal “unless the properties are otherwise closely comparable in size, use, zoning and locale.”
799 N.E.2d at 390.
A prior sale of the subject property is usually the best evidence of market value. But if the
real estate market has significantly changed since the sale or if the property itself has undergone
substantial change, then the prior sale of the subject property may not be admitted in evidence.
Illinois State Toll Highway Authority v. Grand Mandarin Restaurant, Inc., 189 Ill.App.3d 355,
544 N.E.2d 1145, 136 Ill.Dec. 370 (2d Dist. 1989) (property substantially improved after sale,
thereby rendering sales price inadmissible); Illinois State Toll Highway Authority v. American
National Bank & Trust Company of Chicago, 236 Ill.App.3d 696, 606 N.E.2d 147, 179 Ill.Dec.
315 (2d Dist. 1992) (property assembled after sale, thereby rendering sales price inadmissible).
The fact that the sale occurred after the valuation date does not act as a per se bar to
admissibility. The proponent of the sale must prove the sales price was not affected by the public
project involved in the case. Illinois State Toll Highway Authority v. Heritage Standard Bank &
Trust Co., 250 Ill.App.3d 665, 619 N.E.2d 1321, 189 Ill.Dec. 272 (2d Dist. 1993).
In the absence of sales evidence, offers to purchase may be admitted as evidence of market
value provided they are bona fide and made before the valuation date. Blanton, supra;
Department of Public Works & Buildings v. Lambert, 411 Ill. 183, 103 N.E.2d 356 (1952). In
County of St. Clair v. Wilson, 284 Ill.App.3d 79, 672 N.E.2d 27. 30, 219 Ill.Dec. 712 (5th Dist.
1996), the appellate court held the trial court erred when it excluded testimony regarding offers to
purchase property adjacent to the property being acquired. According to the opinion, all experts
on both sides had agreed that in making their valuation they would reasonably rely on bona fide
offers to purchase the adjacent property. Based on this concession, and based on the rationale for
Fed.R.Evid. 703 and 705, the appellate court concluded that “[t]he admission of testimony about
offers to purchase is not dependent upon the presence or absence of evidence of comparable sales
figures.” 672 N.E.2d at 30. The appellate court cited, but did not discuss, how its ruling squared
with the Illinois Supreme Court’s ruling in Lambert, supra, that offers to purchase are admissible
only in the absence of evidence of actual sales. Offers made after the valuation date, even offers
for the subject property, are not admissible. Illinois State Toll Highway Authority v. Dicke, 208
Ill.App.3d 158, 566 N.E.2d 1003, 153 Ill.Dec. 153 (2d Dist. 1991); Village of Woodridge v.
Board of Education of Community High School District 99, 403 Ill.App.3d 559, 933 N.E.2d 392,
342 Ill.Dec. 806 (2d Dist. 2010). Under no circumstances will a trial court admit evidence of
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settlements made by the condemnor with other property owners in the area. Illinois State Toll
Highway Authority v. Heritage Standard Bank & Trust Co., 196 Ill.App.3d 5, 552 N.E.2d 1151,
142 Ill.Dec. 410 (2d Dist. 1990). To be admissible, the offer must be for a definite price and
cannot be contingent. Village of Woodridge, supra.
An expert witness may also present sales information to the jury by describing the sales relied
on in forming his or her opinion of value. The appraiser could rely on sales of property that were
not admitted as independent, comparable sales. Department of Public Works & Buildings of State
of Illinois ex rel. People v. Lankford, 65 Ill.App.2d 133, 212 N.E.2d 14 (4th Dist. 1965);
Department of Public Works & Buildings of State of Illinois ex rel. People v. Seeber, 93
Ill.App.2d 271, 235 N.E.2d 269 (4th Dist. 1968). Formerly, when describing these “foundation”
sales, the appraiser could not directly mention the actual sales price or otherwise attempt to
structure the testimony to indicate the sales price if the foundation sale had not been previously
admitted as a comparable sale. Lake County Forest Preserve District v. Bank & Trust Company
of Arlington Heights, 106 Ill.App.3d 856, 436 N.E.2d 237, 247, 62 Ill.Dec. 487 (2d Dist. 1982).
With the advent of Fed.R.Evid. 703 and 705 as well as Ill.R.Evid. 703, an appraiser may
relate the price and other details of comparable sales, even if not previously independently
admitted in evidence, provided the trial court concludes an expert could reasonably rely on them
and another rule of evidence does not bar them. Department of Conservation of State of Illinois v.
Dorner, 192 Ill.App.3d 333, 548 N.E.2d 749, 139 Ill.Dec. 364 (1st Dist. 1989); City of Chicago v.
Anthony, 136 Ill.2d 169, 554 N.E.2d 1381, 144 Ill.Dec. 93 (1990). See §§7.11 and 7.12 above for
a more detailed discussion of this issue.
b. [7.25] Cost Approach
Use of the cost approach is fraught with danger because the courts have on occasion
permitted valuation testimony that considered the cost approach and on other occasions have
stricken valuation testimony based on the cost approach. As a general rule, an appraiser may use
the cost approach as a check on or in conjunction with the market approach but may not rely on it
exclusively. Department of Public Works & Buildings v. Divit, 25 Ill.2d 93, 182 N.E.2d 749
(1962). The replacement or reproduction cost of buildings is only one element a witness may
consider. Department of Public Works & Buildings v. Pellini, 7 Ill.2d 367, 131 N.E.2d 55 (1955).
When using this approach, one must recognize that the value of the entire property as a whole,
not the separate value of the land and buildings, is the controlling issue. Chicago Land Clearance
Commission v. Darrow, 12 Ill.2d 365, 146 N.E.2d 1 (1957). Thus, the appraiser may add the
value of the land and the contributory value of the improvements only if the final valuation is
based on the property as a whole. Department of Transportation of State of Illinois ex rel. People
v. Gass, 165 Ill.App.3d 562, 519 N.E.2d 90, 116 Ill.Dec. 500 (5th Dist. 1988). See also County of
St. Clair v. Wilson, 284 Ill.App.3d 79, 672 N.E.2d 27, 219 Ill.Dec. 712 (5th Dist. 1996).
The courts resist the cost approach for two reasons. The first concerns a potential misuse of
the approach by emphasizing the value of the property to the owner rather than the market value.
In City of Chicago v. Giedraitis, 14 Ill.2d 45, 150 N.E.2d 577, 580 (1958), the Supreme Court
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upheld the trial court’s refusal to permit the owner to introduce the cost of certain improvements
made to the property by stating:
Neither do we believe that the trial court erred in excluding Dorothy Giedraitis’
testimony concerning amounts which she had expended since 1948 in improving the
premises. Although replacement or reproduction costs may under certain
circumstances be material, this proffered proof was not designed for that purpose
but sought only to show the appellant’s investment and was therefore clearly
inadmissible. The test is not what the improvements originally cost or the sum that
the owner has expended therein, but rather it is the amount for which the entire
property would voluntarily sell. . . . Furthermore, even were we to consider this as
an attempt to prove replacement costs, the testimony would be equally objectionable
since no evidence of reasonable depreciation was ever offered. [Citation omitted.]
The second and more frequent reason for excluding testimony based on the cost approach
arises when the witness misuses the approach by simply adding the value of the vacant land to the
value of the building without making any adjustment. In Department of Public Works &
Buildings v. Lotta, 27 Ill.2d 455, 189 N.E.2d 238, 240 (1963), the Supreme Court upheld the trial
court’s decision to strike an appraiser’s testimony on the following basis:
We have consistently held that the fair market value of improved property is not the
sum of the value of the building and the value of the land computed separately. For
this purpose, the whole does not necessarily equal the sum of the parts. The value of
unimproved land, adaptable for any use, may diminish, as land, when improved by
the construction of a building and so committed to a particular use. For similar
reasons, the construction of a building may not produce an increment in value equal
to its cost, since the improvement may not be desirably situated. To avoid
misleading and confusing the jury, the evidence may properly be confined to the
value directly at issue, that is, the value of the improved land as a whole.
A 1976 Supreme Court decision considering the cost approach is Department of
Transportation v. Quincy Coach House, Inc., 64 Ill.2d 350, 356 N.E.2d 13, 1 Ill.Dec. 13 (1976).
At the trial, the owner’s appraiser reached an opinion of value that was the exact sum of its land
value and reproduction cost of buildings but testified that the “improvements were ‘compatible’
with the land.” 356 N.E.2d at 19. Based on this assertion, both the trial court and the Fourth
District Appellate Court upheld admission of the testimony. People ex rel. Department of
Transportation v. Quincy Coach House, Inc., 29 Ill.App.3d 616, 332 N.E.2d 21 (4th Dist. 1975).
The Supreme Court reversed. Holding that the term “compatible” may refute the existence of a
gross disparity between the market value of the property and the total value of land and
improvements, the Supreme Court nevertheless stated this vague term “is too indefinite to provide
the necessary showing that the market value was enhanced to the extent of the cost of reproducing
the improvements.” 356 N.E.2d at 19. Presumably a much more specific analysis would be
required.
Although decided before Quincy Coach House, the Fifth District’s opinion in Department of
Transportation of State of Illinois ex rel. People v. Gallay, 20 Ill.App.3d 32, 312 N.E.2d 759 (5th
Dist. 1974), demonstrates an acceptable use of the cost approach. An unacceptable use, which
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like the Quincy Coach House situation featured vague and uncertain testimony, is found in
Central Illinois Public Service Co. v. Gibbel, 65 Ill.App.3d 890, 382 N.E.2d 846, 22 Ill.Dec. 456
(4th Dist. 1978).
c. [7.26] Income Approach
Like the cost approach, the income approach is also subject to pitfalls. If the property is
subject to a valid, arm’s-length lease with a third party, an appraiser may consider the rental
income. City of Chicago v. Lord, 276 Ill. 544, 115 N.E. 8 (1916). The parties may also introduce
in evidence the actual lease, provided it was negotiated and executed in good faith prior to
commencement of the case. Department of Public Works & Buildings v. Kirkendall, 415 Ill. 214,
112 N.E.2d 611 (1953). In Forest Preserve District of Cook County v. Krol, 12 Ill.2d 139, 145
N.E.2d 599 (1957), the Supreme Court even upheld admission of a lease that had expired prior to
commencement of the case. However, a different result occurred in Illinois State Toll Highway
Authority v. Grand Mandarin Restaurant, Inc., 189 Ill.App.3d 355, 544 N.E.2d 1145, 136 Ill.Dec.
370 (2d Dist. 1989). The appellate court upheld exclusion of a lease on the subject property that
had been terminated five years prior to the valuation date because the lease was too remote in
time and the owner had substantially improved the property after termination of the lease.
In Department of Transportation of State of Illinois ex rel. People v. Bouy, 69 Ill.App.3d 29,
386 N.E.2d 1163, 25 Ill.Dec. 499 (4th Dist. 1979), the appellate court approved the use of an
income approach to value a cemetery, while in Department of Public Works & Buildings of State
of Illinois ex rel. People v. Brockmeier, 128 Ill.App.2d 395, 262 N.E.2d 345 (5th Dist. 1970), the
appellate court approved an income valuation of a sod farm because there were no comparable
sales and the property had a special value, although it was not special-use property. Relying on
Brockmeier, the appellate court also approved an income valuation of a horseradish farm in
Department of Transportation of State of Illinois ex rel. People v. Keller, 149 Ill.App.3d 829, 500
N.E.2d 982, 102 Ill.Dec. 881 (5th Dist. 1986). Both Brockmeier and Keller were premised on a
finding that each property had a special value arising out of the unique capabilities of the soil, not
the capabilities of the farmers.
When the property is not actually leased, however, the income approach becomes much more
suspect. Without actual rent receipts, determining anticipated rentals and projected expenses may
become very speculative. In those situations, the Supreme Court considers the results to be too
theoretical and uncertain to be accepted as evidence of market value. City of Chicago v.
Giedraitis, 14 Ill.2d 45, 150 N.E.2d 577 (1958); Department of Transportation v. Quincy Coach
House, Inc., 64 Ill.2d 350, 356 N.E.2d 13, 1 Ill.Dec. 13 (1976). Similarly, the appellate court
disapproved of an income approach for a hotel that was based on speculative projections of future
income. Reynolds v. Coleman, 173 Ill.App.3d 585, 527 N.E.2d 897, 123 Ill.Dec. 259 (1st Dist.
1988).
The Supreme Court addressed the proper treatment of proposed but unexecuted leases for the
subject property as well as actual leases of other property in City of Chicago v. Anthony, 136
Ill.2d 169, 554 N.E.2d 1381, 1391, 144 Ill.Dec. 93 (1990). The First District held the trial court
had erred when it precluded an expert from testifying as to the potential income from a proposed
but unexecuted lease for a billboard on the condemned property and when it precluded evidence
of the average billboard rental income produced by other signs at other properties. City of
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Chicago v. Anthony, 174 Ill.App.3d 288, 528 N.E.2d 298, 123 Ill.Dec. 753 (1st Dist. 1988).
Referring to Fed.R.Evid. 703, as interpreted in Department of Transportation v. Beeson, 137
Ill.App.3d 908, 485 N.E.2d 511, 92 Ill.Dec. 700 (2d Dist. 1985), the appellate court found this
evidence neither too speculative nor too futuristic and, therefore, reasonably relied on by the
expert. The Supreme Court disagreed. It reversed the appellate court, held the trial court acted
within its discretion when it found the sign lease proposal to be too speculative, and restricted the
reach of Fed.R.Evid. 703 by approving the exclusion of the expert’s testimony that he relied on
this proposal. The court determined such reliance would not be reasonable. The Supreme Court
also approved the exclusion of the expert’s testimony concerning average sign rental income of
other properties, stating:
Under the eminent domain law of this State, there may be circumstances where an
expert may be permitted to state the particulars of a rental agreement as a basis for
an opinion of fair cash market value. [See Kirkendall, supra, 112 N.E.2d at 615.] Each
eminent domain case, however, must be decided on its facts. Even if it might be
proper, under the appropriate circumstances, to allow an expert to testify about the
average sign rental income received on comparable properties in a condemnation
case as an underlying fact or data upon which the expert relied in reaching an
opinion of the fair cash market value of the subject property, such circumstances
are not present here. The circuit court correctly prohibited defendant’s expert from
stating the specifics of the rental income contained in the sign lease proposal as a
basis for his opinion of the fair cash market value of the subject property. As a
result, the actual dollar amounts of income received pursuant to other sign leasing
agreements on other parcels of property would not serve to “shed light” upon the
basis for the expert’s opinion regarding rental income set out in the sign lease
proposal. Anthony, supra, 554 N.E.2d at 1391.
As for the valuation of billboards themselves, the appellate court upheld use of the income
approach, as well as the cost and market approaches, in Department of Transportation v. Drury
Displays, Inc., 327 Ill.App.3d 881, 764 N.E.2d 166, 172, 261 Ill.Dec. 875 (5th Dist. 2002). The
appellate court based its ruling, in part, on the 1993 amendment to former 735 ILCS 5/7-101 now
735 ILCS 30/10-5-5, which the court “rephrased colloquially as: Billboard owners have a right to
just compensation for any condemned sign.” Id. The Third District Appellate Court held that if a
billboard lease is condemned as part of the acquisition of fee simple title to the property on which
the billboard is located, the measure of compensation for the billboard lease is based on the bonus
value of the lease rather than on lost income. Department of Transportation v. East Side
Development, L.L.C., 384 Ill.App.3d 295, 892 N.E.2d 136, 322 Ill.Dec. 889 (3d Dist. 2008).
In a close decision, the Supreme Court approved testimony of experts based on a combination
of actual and estimated expenses and rentals when the appraisers were knowledgeable and the
property that was appraised, an apartment building, was typically rented. Department of Public
Works & Buildings v. Pellini, 7 Ill.2d 367, 131 N.E.2d 55 (1955). See also Department of Public
Works & Buildings of State of Illinois v. Camboni’s Inc., 90 Ill.App.2d 421, 232 N.E.2d 747 (2d
Dist. 1967); City of Chicago ex rel. Schools v. Exchange National Bank of Chicago, 64 Ill.App.2d
455, 212 N.E.2d 494 (1st Dist. 1965).
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The courts also prohibit an owner from introducing evidence of gross sales from an owneroccupied property in an attempt to establish the property’s rental value. City of Chicago v.
Central National Bank in Chicago, 5 Ill.2d 164, 125 N.E.2d 94 (1955). Not only do ownergenerated gross sales involve speculative factors, but they also depend on the owner’s ability to
generate sales and thus reflect the peculiar value of the property to the owner instead of its market
value. In Chicago Land Clearance Commission v. Darrow, 12 Ill.2d 365, 146 N.E.2d 1, 5 – 6
(1957), the Supreme Court adopted the following reasoning in rejecting an owner’s argument that
the net income was derived from the property itself and not from the business conducted on the
property:
In every case where real estate is a necessary part of the business, income from the
business can be said in some measure to derive from the property itself. Surely there
is nothing magical about this property which enables it to produce income without
the invested capital and managerial skill of the Chroman brothers, not to mention
the economic vicissitudes attendant with any endeavor for profit. Whether it is
described as a business operated on the property or a business of operating the
property, the profits derived therefrom are too uncertain and depend on too many
contingencies to safely be accepted as any evidence of the fair, cash market value of
the property. Thus, the trial court properly excluded defendants’ offer to prove the
gross income, expenses and net income from the operation of the Ford Hotel.
An expert who desires to employ the income approach should use it as one method among
others in arriving at the ultimate conclusion of fair market value. The other factors should include
the expert’s experience, the property itself, and sales of similar properties, if there are any. Like
the cost approach, the income approach should not be used as the sole approach to valuation to
conform to the Supreme Court’s position in Quincy Coach House, supra.
Finally, use of the income approach does not warrant admission of the market value of the
leasehold interest when there is a fee simple taking. Department of Transportation v. White, 264
Ill.App.3d 145, 636 N.E.2d 1204, 201 Ill.Dec. 772 (5th Dist. 1994). The value of the leasehold
interest comes into play under these circumstances when it comes time to allocate the just
compensation award. The trial judge conducts the apportionment hearing after the jury has
established the just compensation. This process should be distinguished from situations in which
only the leasehold interest is being condemned. See, e.g., Drury Displays, supra.
2. [7.27] Elements Excluded from Fair Cash Market Value
An appraiser may not consider certain elements in arriving at an opinion of market value.
Sometimes, the courts or the General Assembly decided to exclude the improper elements for
public policy reasons even though they may actually affect the market value. In other instances,
the courts determined the improper elements were not relevant to the market value of the
property. Sections 7.28 – 7.34 below consider some of the most frequently encountered improper
elements.
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a. [7.28] Appreciation or Depreciation Caused by Project
In many cases, the public project for which the property is being acquired will affect the
market value of property in the area. For example, if the Illinois Department of Transportation
announces plans to construct a new interchange on a highway, land values in the area of the new
interchange may rise drastically. Reasoning that the state should not be required to pay for
additional value it has created when it acquires property for projects such as an interchange, the
General Assembly enacted §10-5-60 of the Eminent Domain Act, which excludes “any
appreciation in value proximately caused by the improvement and any depreciation in value
proximately caused by the improvement” unless the appreciation or depreciation is caused by a
separate project. 735 ILCS 30/10-5-60.
Under this statute, an owner may establish the amount of depreciation in the value of the
property attributable to the public improvement itself. City of Rock Island, Illinois v. Moline
National Bank, 54 Ill.App.3d 853, 368 N.E.2d 1113, 11 Ill.Dec. 505 (3d Dist. 1977). But the
witness must clearly identify the specific project as the cause of either appreciation or
depreciation; the witness cannot merely refer to the general activities of the condemnor in the
area. Forest Preserve District of DuPage County, Illinois v. Valente, 61 Ill.App.3d 887, 378
N.E.2d 345, 18 Ill.Dec. 881 (2d Dist. 1978). If the proposed use by the condemnor will not
change the character of the property, the witness may consider the condemnor’s activity in the
area. Department of Conservation of State of Illinois ex rel. People v. Strassheim, 92 Ill.App.3d
689, 415 N.E.2d 1346, 48 Ill.Dec. 62 (2d Dist. 1981).
If an appraiser fails to follow the “scope of project” rule, the trial court should bar the
appraiser’s opinion. City of Chicago v. Eychaner, 2015 IL App (1st) 131833, 26 N.E.3d 501, 389
Ill.Dec. 411.
These restrictions parallel the same rules that prohibit appraising the property on the basis of
the condemnor’s need for the property to construct the improvement. For example, an owner
whose property is being acquired for landfill for a bridge to be constructed in the area cannot
predicate value on the market for landfill created by the condemnor. Department of
Transportation v. Toledo, Peoria & Western R.R., 75 Ill.2d 436, 389 N.E.2d 546, 27 Ill.Dec. 482
(1979). See also Peoples Gas Light & Coke Co. v. Buckles, 24 Ill.2d 520, 182 N.E.2d 169 (1962).
On the other hand, if the owner proves that a market exists for the property independent of the
needs of the condemnor, the owner may predicate value based on that market. Department of
Transportation ex rel. People v. Farnsworth, 273 Ill.App.3d 631, 653 N.E.2d 423, 210 Ill.Dec.
518 (3d Dist. 1995).
b. [7.29] Illegal Use
Section 10-5-50 of the Eminent Domain Act states:
Evidence is admissible as to: . . . (2) any unsafe, unsanitary, substandard, or other
illegal condition, use, or occupancy of the property, including any violation of any
environmental law or regulation; (3) the effect of such condition on income from or
the fair market value of the property; and (4) the reasonable cost of causing the
property to be placed in a legal condition, use, or occupancy, including compliance
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with environmental laws and regulations. Such evidence is admissible
notwithstanding the absence of any official action taken to require the correction or
abatement of the illegal condition, use, or occupancy. 735 ILCS 30/10-5-50.
The appellate court considered the scope of §10-5-50 (former 735 ILCS 5/7-119 and former
Ill.Rev.Stat. (1989), c. 110, ¶7-119) for the first time in Illinois State Toll Highway Authority v.
West Suburban Bank, 208 Ill.App.3d 923, 567 N.E.2d 730, 153 Ill.Dec. 772 (2d Dist. 1991). In a
case that involved the partial acquisition for an intersection widening from a Firestone tire
franchise that serviced semitrailer trucks, the Illinois State Toll Highway Authority sought to
introduce evidence that the Firestone dealer might have illegally used the adjoining state and
county right-of-way for parking trucks being serviced. The appellate court made two important
rulings: (1) this section applies only to the illegal use of the subject property, not to the illegal use
of adjacent property by the owner of the subject property; and (2) evidence of any illegal
encroachments on adjacent rights-of-way must clearly affect the fair market value of the subject
property to be relevant and admissible.
The necessity of establishing a close nexus between the asserted illegal condition and the
market value was reinforced by the appellate court in Department of Transportation ex rel.
People v. Parr, 259 Ill.App.3d 602, 633 N.E.2d 19, 198 Ill.Dec. 557 (3d Dist. 1994). The Illinois
Department of Transportation invoked the precursor to §10-5-50, former 735 ILCS 5/7-119, as it
was written prior to the 1998 amendment, in an attempt to introduce evidence of environmental
remediation costs. However, both the trial and appellate courts found that IDOT had failed to
prove the existence of an underlying illegal condition to justify the proffered costs. Lacking proof
of such an illegal condition, IDOT could not use the prior version of the statute as a basis for
admitting environmental remediation costs. The 1998 amendment to former §7-119 specifically
provided for the admission of evidence relating to any violation of environmental laws or
regulations and the violation’s effect on a property’s market value. The question remains whether
this statutory amendment overcomes the Parr court’s concern with the due-process rights of
property owners.
The Parr court’s decision to bar evidence of environmental remediation costs is the minority
position. A good example of the majority position that evidence of environmental contamination
and remediation costs is admissible and a thorough discussion of this issue may be found in
Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 256 Conn. 813, 776 A.2d 1068
(2001). See also 260 North 12th Street, LLC v. State of Wisconsin Department of Transportation,
338 Wis.2d 34, 808 N.W.2d 372 (2011).
Section 10-5-50 expresses a public policy that owners should not receive any compensation
arising out of illegal uses. Along similar lines, the First District upheld a cause of action seeking
to impose a constructive trust on funds received in a condemnation proceeding in which the
plaintiff contended the value of the property was inflated as a result of bribes paid to obtain
rezoning. Chicago Park District v. Kenroy, Inc., 107 Ill.App.3d 222, 437 N.E.2d 783, 63 Ill.Dec.
134 (1st Dist. 1982). The Second District upheld a trial court’s exclusion of the value of
improvements that were constructed on the property between the date of notification of the taking
and the date of filing the petition to condemn. The appellate court held the improvements were
not constructed in good faith. Waukegan Port District v. Booras, 55 Ill.App.3d 790, 371 N.E.2d
321, 13 Ill.Dec. 604 (2d Dist. 1977). On the other hand, if the owner acts in good faith in
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anticipation of the taking and starts to dismantle improvements, the court may exclude an opinion
that the highest and best use of the property had changed by the valuation date. City of Quincy,
Illinois v. Diamond Construction Co., 327 Ill.App.3d 338, 762 N.E.2d 710, 261 Ill.Dec. 141 (4th
Dist. 2002).
Booras, supra, should be read carefully because in both Department of Transportation v.
Newmark, 34 Ill.App.3d 811, 341 N.E.2d 133 (5th Dist. 1975), and Illinois State Toll Highway
Authority v. Humphrey Estate, 62 Ill.App.3d 316, 379 N.E.2d 626, 19 Ill.Dec. 754 (2d Dist.
1978), the appellate courts ruled the condemnor could not offer evidence establishing the owner’s
awareness of the proposed improvement at the time of purchasing the property. Obviously, there
are some tensions between these decisions (foreknowledge is admissible) and Diamond
Construction, supra (foreknowledge is inadmissible).
c. [7.30] Business Done on Property
Since the market value standard attempts to achieve an objective or a neutral method of
valuing property, the courts have rejected any valuations that consider the amount of business
conducted on the site or the profits from that business. The reasons for this position are succinctly
expressed in one of the first decisions to preclude such evidence, Jacksonville & Southeastern Ry.
v. Walsh, 106 Ill. 253, 256 (1883):
Again, one person can do a greatly larger business in the same calling, at the same
place, and under the same circumstances, than another. It may be that appellee
could, in that saloon, do double the amount of business that any other person could
do. Such considerations are purely contingent, and altogether speculative, and can
not form the basis for fixing the price of the property, and its market value was the
question involved, and which the jury were required to find.
For these reasons, parties cannot introduce evidence of the going value of the property based
on the conduct of business, the value of the products produced, or the costs of production. City of
Chicago v. Farwell, 286 Ill. 415, 121 N.E. 795 (1918). Similarly, the volume of business or the
profits generated by the business are inadmissible. Forest Preserve Dist. of Cook County v. Hahn,
341 Ill. 599, 173 N.E. 763 (1930); Reynolds v. Coleman, 173 Ill.App.3d 585, 527 N.E.2d 897,
123 Ill.Dec. 259 (1st Dist. 1988). See also Department of Transportation v. East Side
Development, L.L.C., 384 Ill.App.3d 295, 892 N.E.2d 136, 322 Ill.Dec. 889 (3d Dist. 2008) (with
respect to compensation for acquisition of billboard lease); Department of Transportation v.
Singh, 393 Ill.App.3d 458, 914 N.E.2d 511, 333 Ill.Dec. 92 (2d Dist. 2009) (with respect to full
acquisition of gasoline service station); Al’s Service Center v. BP Products North America, Inc.,
599 F.3d 720 (7th Cir. 2010) (with respect to partial taking of property improved with gasoline
service station).
This rule works both ways: the owner cannot show increased value as a result of his or her
financial status or successful business, and the condemnor cannot show decreased value as a
result of the owner’s financial problems or unprofitable business. Department of Public Works &
Buildings v. Lambert, 411 Ill. 183, 103 N.E.2d 356 (1952). Since the book value of property is
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not the same as its market value, the courts will also exclude the balance sheet of the corporation
owning the property. County of Cook v. Vulcan Materials Co., 16 Ill.2d 385, 158 N.E.2d 12
(1959).
The emphasis on market value precludes evidence of value based on an owner’s ability to
obtain financing commitments for a particular project or the owner’s outlay of capital for future
planning. City of Chicago v. Provus, 415 Ill. 618, 114 N.E.2d 793 (1953); City of Chicago ex rel.
Schools v. American National Bank & Trust Company of Chicago, 7 Ill.App.3d 1006, 288 N.E.2d
627 (1st Dist. 1972).
Evidence of business operations at the property may be admissible to prove changes created
by a partial acquisition if it tends to prove damage to the remainder caused by the acquisition. In
Department of Transportation v. Shell Oil Co., 156 Ill.App.3d 304, 509 N.E.2d 596, 108 Ill.Dec.
900 (1st Dist. 1987), the appellate court approved evidence of the decrease in volume of gasoline
sold after a partial acquisition of a gasoline service station for a road widening on the grounds this
evidence related to the difference in ease of access to the pump islands before and after the
taking. In turn, the change in ease of access related to the diminution in value of the remainder
after the taking. The court expressly took note that ownership of the station remained the same,
that no changes in laws or licensing had occurred, and that the ease of access to the station bore
relevance to the market value of the property after the acquisition.
d. [7.31] Cost of Moving
If the condemnor does not acquire the owner’s equipment or stock in trade, the cost of
moving these items and other personal property is not considered to be part of the just
compensation required to be paid in the condemnation case. Housing Authority of City of East St.
Louis v. Kosydor, 17 Ill.2d 602, 162 N.E.2d 357 (1959). However, the owner may recover some
of these costs outside the condemnation proceeding under the provisions either of the Eminent
Domain Act’s relocation costs section (735 ILCS 30/10-5-62) or of the federal Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970.
e. [7.32] Taxation
Property may be valued for several different purposes, not all of which are aimed at
determining market value. Appraisals made for other than market purposes may incorporate
different standards and be misleading.
The assessor’s valuation for tax purposes is inadmissible (City of Chicago v. HarrisonHalsted Building Corp., 11 Ill.2d 431, 143 N.E.2d 40 (1957)), as is the amount of real estate taxes
on the property (Department of Public Works & Buildings of State of Illinois ex rel. People v.
Cohen, 9 Ill.App.3d 85, 291 N.E.2d 883 (3d Dist. 1972)). An inheritance tax return may also be
formulated under different standards and not be indicative of fair market value. Department of
Transportation of State of Illinois v. Prairie Travler, Inc., 52 Ill.App.3d 799, 368 N.E.2d 144, 10
Ill.Dec. 658 (4th Dist. 1977). Attempting to show that the property was sold for taxes constitutes
reversible error. City of Chicago ex rel. Schools v. Pridmore, 12 Ill.2d 447, 147 N.E.2d 54 (1957).
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Inasmuch as the only duty of the jury is to determine just compensation, the method of
financing the improvement is irrelevant, and therefore the jury should not be advised of the
source of the condemnor’s funds. City of Quincy v. V.E. Best Plumbing & Heating Supply Co., 17
Ill.2d 570, 162 N.E.2d 373 (1959).
f.
[7.33] Replacement Costs
Market value does not include the cost of replacing improvements that have been acquired. A
witness may not use replacement cost either to determine the value of a building as part of an
opinion of the value of the subject property (Forest Preserve Dist. of Cook County v. Chilvers,
344 Ill. 573, 176 N.E. 720 (1931)) or to determine the money that the owner needs to purchase
similar property after the subject property has been acquired (City of Chicago v. Cunnea, 329 Ill.
288, 160 N.E. 559 (1928)).
g. [7.34] Existing Right-of-Way
If a portion of the property to be taken is already encumbered by a right-of-way, the portion is
excluded from the fair cash market value. The General Assembly amended §4-501 of the Illinois
Highway Code, 605 ILCS 5/1-101, et seq., in 1979 to add a provision directed to the valuation of
farmland when a portion of the land had already been a part of a highway’s right-of-way. In
Department of Transportation of State of Illinois ex rel. People v. Lawler, 113 Ill.App.3d 105,
446 N.E.2d 863, 68 Ill.Dec. 692 (3d Dist. 1983), the appellate court held this amendment merely
restated the existing common-law rule for valuing property that had been dedicated for public
use. Since the common law awarded no compensation other than nominal compensation to the
underlying fee simple owner, the appellate court ruled the trial court had erred when it required
the condemnor to pay full value for the property as if it had not been encumbered by the right-ofway.
3. [7.35] Environmental Issues
Section 10-5-50 of the EDA (former 735 ILCS 5/7-119) governs the admissibility of certain
types of evidence. The state legislature amended the original statute by P.A. 90-393 (eff. Jan. 1,
1998). The current statute, with the language added by P.A. 90-393 in italics, states:
Admissibility of evidence. Evidence is admissible as to: (1) any benefit to the
landowner that will result from the public improvement for which the eminent
domain proceedings were instituted; (2) any unsafe, unsanitary, substandard, or
other illegal condition, use, or occupancy of the property, including any violation of
any environmental law or regulation; (3) the effect of such condition on income from
or the fair market value of the property; and (4) the reasonable cost of causing the
property to be placed in a legal condition, use, or occupancy, including compliance
with environmental laws and regulations. Such evidence is admissible
notwithstanding the absence of any official action taken to require the correction or
abatement of the illegal condition, use, or occupancy. [Emphasis added.] 735 ILCS
30/10-5-50.
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The amendment to former 735 ILCS 5/7-119 raises an issue as to the continued viability of
the holding in Department of Transportation ex rel. People v. Parr, 259 Ill.App.3d 602, 633
N.E.2d 19, 22, 198 Ill.Dec. 557 (3d Dist. 1994). The appellate court in Parr construed this statute,
in its pre-amendment form, as not permitting the admission of environmental remediation costs
unless the court found an underlying illegal condition justifying such costs.
In addition, the appellate court’s opinion suggests “that even if environmental remediation
costs were admissible under [§10-5-50], such admission would violate the procedural due process
rights of the owners of condemned property.” Id. How, and whether, the amendatory language in
the statute squares with procedural due-process rights remain to be decided. See the discussion of
Parr in §7.29 above, and see Chapter 12 of this publication for a more thorough discussion of
environmental issues.
4. [7.36] Minerals, Timber, and Farm Property
When property contains valuable natural resources such as minerals, timber, or crops, the
parties may attempt to predicate value on the price for which the resources would sell. Such an
approach violates both the rule against valuing the business done on the property and the rule
against totaling the independent value of the land, as vacant, and the improvements, whether
man-made or natural.
In Forest Preserve Dist. of Cook County v. Caraher, 299 Ill. 11, 132 N.E. 211 (1921), the
condemnor acquired an acreage parcel that included heavily forested land. At trial, the owner
presented a professional forester who valued the timber by ascertaining how much timber was on
the property, figuring the cost to harvest the timber through construction of a sawmill, estimating
the expenses of marketing the timber, and finally estimating the price that the cut timber could
command on the market. Holding the trial court had erred in allowing this testimony, the
Supreme Court explained that the owner could take into account the valuable timber’s effect on
the property’s market value, but could not consider the value of the timber as separate and distinct
from the land. Permitting evidence of the value of trees when converted to lumber would
introduce such collateral issues as the amount of expenses, probability of sales, etc., before the
jury. The timber could be valued as part of the land but not separately from it. See also
Department of Public Works & Buildings v. Hubbard, 363 Ill. 99, 1 N.E.2d 383 (1936).
The courts adopted the same approach to land that has valuable minerals under the surface.
Faced with an appeal involving property containing valuable sand deposits, the Supreme Court
stated in Department of Public Works & Buildings v. Oberlaender, 42 Ill.2d 410, 247 N.E.2d 888,
892 (1969):
Putting it somewhat differently, where, as here, the property is not taken for the
purpose of obtaining the minerals or a going business . . . it is improper to appraise
separately the mineral deposit and add its value to the value of the land without the
deposits. . . . It is proper, however, for the owner to establish the existence of
valuable mineral deposits on the real estate being valued and in doing this to show
the character of the deposit(s) and to what extent it enhances the land’s market
value. [Citations omitted.]
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The Supreme Court reaffirmed this position in Department of Transportation v. Toledo,
Peoria & Western R.R., 75 Ill.2d 436, 389 N.E.2d 546, 27 Ill.Dec. 482 (1979), and the appellate
court applied the same rule to valuation of a shale pit (Department of Transportation of State of
Illinois ex rel. People v. Mullen, 120 Ill.App.3d 268, 457 N.E.2d 1362, 75 Ill.Dec. 803 (4th Dist.
1983)) and a limestone quarry (Department of Transportation ex rel. People v. Central Stone Co.,
200 Ill.App.3d 841, 558 N.E.2d 742, 146 Ill.Dec. 779 (4th Dist. 1990)). The appellate court
distinguished the holding in Toledo, Peoria & Western when it decided Department of
Transportation ex rel. People v. Farnsworth, 273 Ill.App.3d 631, 653 N.E.2d 423, 210 Ill.Dec.
518 (3d Dist. 1995). Because the Illinois Department of Transportation was acquiring only title to
fill material, and not title to the property on which the fill material was located, the appellate
court in Farnsworth held the fill material could be valued based on a fixed price per cubic yard.
The amount of minerals, sand, or gravel on the property must be proven by competent
evidence. The owner cannot testify before first establishing the requisite knowledge and
competence. Similarly, an appraiser may not testify about the sand and gravel content of property
without having first established that the source of information concerning the sand or gravel
content is reasonably reliable. Chicago & Illinois Midland Ry. v. Crystal Lake Industrial Park,
Inc., 225 Ill.App.3d 653, 588 N.E.2d 337, 167 Ill.Dec. 696 (3d Dist. 1992).
Although the Fifth District permitted an income appraisal of a sod farm when the property
was characterized as having a special value and no comparable sales were available (Department
of Public Works & Buildings of State of Illinois ex rel. People v. Brockmeier, 128 Ill.App.2d 395,
262 N.E.2d 345 (5th Dist. 1970)) and also permitted an income appraisal of a horseradish farm
(Department of Transportation of State of Illinois ex rel. People v. Keller, 149 Ill.App.3d 829,
500 N.E.2d 982, 102 Ill.Dec. 881 (5th Dist. 1986)), the same rules that apply to timber or
minerals should also apply to farm crops. Of course, if the crops are completely grown and near
harvest, they could be considered personal property and outside the scope of the real estate
acquisition.
The General Assembly amended §4-501 of the Illinois Highway Code to cover situations in
which the condemnor is acquiring farmland that had been previously dedicated for public use.
605 ILCS 5/4-501. However, this amendment merely restates the common law and does not
impose any new compensation requirements. Department of Transportation of State of Illinois ex
rel. People v. Lawler, 113 Ill.App.3d 105, 446 N.E.2d 863, 68 Ill.Dec. 692 (3d Dist. 1983).
5. [7.37] Subdivision Property
The rule requiring compensation to be based on the land as land and not on its separate
components has been extended to apply to the valuation of vacant property that has a highest and
best use for subdivision development. If the land is vacant and unimproved, the witnesses may
not reach their opinion of value by dividing the property into individual lots, determining the cost
of developing the subdivision, and estimating the market value of the individual lots. Forest
Preserve Dist. of Cook County v. Wing, 305 Ill. 194, 137 N.E. 139 (1922); Forest Preserve Dist.
of Cook County v. Eckhoff, 372 Ill. 391, 24 N.E.2d 52 (1939). This subdivision theory of value
was specifically rejected in Department of Public Works & Buildings of State of Illinois ex rel.
People v. Huffeld, 68 Ill.App.2d 120, 215 N.E.2d 312 (3d Dist. 1966).
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For similar reasons, sales of subdivision lots are not considered comparable to sales of unsubdivided property. Waukegan Park District v. First National Bank of Lake Forest, 22 Ill.2d
238, 174 N.E.2d 824 (1961). Also, sales of lots in an improved subdivision, i.e., in which streets
and utilities have already been constructed, cannot form the basis for valuing unimproved
subdivision property according to the appellate court in Department of Conservation of State of
Illinois v. Dorner, 192 Ill.App.3d 333, 548 N.E.2d 749, 139 Ill.Dec. 364 (1st Dist. 1989).
Although the subdivision theory of value was rejected in Huffeld, supra, courts have
permitted cross-examination of witnesses as to the costs of development and even direct
testimony of the costs of development. In Forest Preserve District of Cook County v. Galt, 412
Ill. 500, 107 N.E.2d 682 (1952), the forest preserve district acquired a large acreage parcel that
both parties agreed had a highest and best use of subdivision purposes even though it was vacant
and not subdivided. During the trial, the owner’s witnesses testified that they considered the cost
of laying out a subdivision in reaching their opinion of value. The condemnor’s attorney then
cross-examined the appraiser on the actual costs and, on rebuttal, put its own witness on the stand
to testify to the costs of subdivision. The Supreme Court upheld the trial court’s decision to
permit both the cross-examination on costs and rebuttal testimony since the appraiser’s theory of
value involved the sale of lots for subdivision purposes. In so holding, the Supreme Court cited
Smith v. Sanitary Dist. of Chicago, 260 Ill. 453, 103 N.E. 254 (1913), in which it held the
condemnor should have been permitted to cross-examine witnesses on the cost of removing trees
in an effort to prove that wooded property was worthless because it would cost more to remove
the trees than the land would bring when cleared. The court also cited City of Chicago v.
Lehmann, 262 Ill. 468, 104 N.E. 829 (1914), in which it held a party could test the opposing
expert’s opinion that the property could be improved with apartments at a moderate cost by crossexamination directed to the cost of erecting the apartments and the expected rental income.
Cross-examination of a witness on the costs of subdivision and use of rebuttal testimony to
show the actual costs was also approved in Forest Preserve District of Cook County v. Krol, 12
Ill.2d 139, 145 N.E.2d 599 (1957). Use of non-appraisal witnesses to establish these costs was
denounced in Forest Preserve District of Cook County v. Tabin, 115 Ill.App.2d 267, 253 N.E.2d
99 (1st Dist. 1969). However, at the same time it prohibited comparable sales of subdivided lots,
the same court approved testimony as to the number of proposed buildable lots if the market
value is dependent on the feasible number of buildable lots.
Once again, the question arises whether the judicial adoption of Fed.R.Evid. 703 and 705 in
Wilson v. Clark, 84 Ill.2d 186, 417 N.E.2d 1322, 49 Ill.Dec. 308 (1981), and the application of
these rules to appraisal testimony in Department of Transportation v. Beeson, 137 Ill.App.3d 908,
485 N.E.2d 511, 92 Ill.Dec. 700 (2d Dist. 1985), and City of Chicago v. Anthony, 136 Ill.2d 169,
554 N.E.2d 1381, 144 Ill.Dec. 93 (1990), affect the scope of both the direct examination and
cross-examination of experts in subdivision cases. The trial court still has an obligation to control
the introduction of irrelevant, collateral, or misleading evidence, but the rules anticipate wideranging direct examination and cross-examination. Specifically, Fed.R.Evid. 705 provides that
the “expert may be required to disclose those facts or data on cross-examination.” See also Piano
v. Davison, 157 Ill.App.3d 649, 510 N.E.2d 1066, 110 Ill.Dec. 35 (1st Dist. 1987). If the
underlying facts or data for the appraisal include a subdivision analysis, this would be subject to
disclosure on cross-examination. If subject to cross-examination, it follows that disclosure might
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be permitted on direct examination. This result would be consistent with Ill.R.Evid. 705, which
states, in relevant part: “The expert may in any event be required to disclose the underlying facts
or data on cross-examination.”
6. [7.38] Billboards
Due to the hybrid nature of billboards — sometimes thought of as personal property,
sometimes as fixtures, and other times as part of the real estate — the valuation of them in
condemnation proceedings has taken many twists and turns. See 1 Julius Sackman et al.,
NICHOLS ON EMINENT DOMAIN §1.42[10][a] (rev. 3d ed. 2012). See also 8A Patrick J.
Rohan and Melvin A. Reskin, NICHOLS ON EMINENT DOMAIN, Ch. G23 (3d ed. 2009).
Further, governmental bodies acquired many signs pursuant to separate statutory powers set forth
in the federal Highway Beautification Act of 1965, Pub.L. No. 89-285, 79 Stat. 1028, and the
Highway Advertising Control Act of 1971, 225 ILCS 440/1, et seq. Section 9 of the Highway
Advertising Control Act provides:
Just compensation shall include payment for the taking from the owner of any sign
required to be removed under this Act of all right, title, leasehold and interest in
such sign and for the taking from the owner of the real property on which the sign is
located of the right to erect and maintain such sign. 225 ILCS 440/9.
Many times, compensation for these takings has been made pursuant to administrative schedules
that considered only the depreciated reproduction cost of the sign.
In 1993, the state legislature amended former 735 ILCS 5/7-101, now §10-5-5(b) of the
Eminent Domain Act, which reads:
The right to just compensation, as provided in this Act, applies to the owner or
owners of any lawfully erected off-premises outdoor advertising sign that is
compelled to be altered or removed under this Act or any other statute, or under
any ordinance or regulation of any municipality or other unit of local government,
and also applies to the owner or owners of the property on which that sign is
erected. The right to just compensation, as provided in this Act, applies to property
subject to a conservation right under the Real Property Conservation Rights Act.
The amount of compensation for the taking of the property shall not be diminished
or reduced by virtue of the existence of the conservation right. The holder of the
conservation right shall be entitled to just compensation for the value of the
conservation right. 735 ILCS 30/10-5-5(b).
The Fifth District Appellate Court construed this language to grant billboard owners a right to
just compensation for any condemned sign in Department of Transportation v. Drury Displays,
Inc., 327 Ill.App.3d 881, 764 N.E.2d 166, 172, 261 Ill.Dec. 875 (5th Dist. 2002):
Looking at the plain language of the statute, we think the first part of the pertinent
sentence might be rephrased colloquially as: Billboard owners have a right to just
compensation for any condemned sign. We believe that meaning is unmistakably
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clear. We reject the Department’s interpretation that “just compensation” means
only [lease] bonus value. Just compensation is the fair market value of the property
at its highest and best use on the date the complaint is filed.
The court rejected the Illinois Department of Transportation’s contention that its
condemnation of the sign company’s leasehold interest only entitled the sign company to be paid
the bonus value of its lease. Instead, the court affirmed a verdict based on appraisal testimony
using the cost, income, and market approaches to value the improved leasehold interest.
The Third District Appellate Court addressed the billboard amendment but came to a
different conclusion than the Fifth District in Department of Transportation v. East Side
Development, L.L.C., 384 Ill.App.3d 295, 892 N.E.2d 136, 322 Ill.Dec. 889 (3d Dist. 2008).
Holding that the 1993 amendment to former 735 ILCS 5/7-101, now §10-5-5, did not create an
exception to the unit rule, the appellate court required property that was improved with a
commercial billboard to be valued as one unit. As a result, the compensation to be paid for
acquisition of the billboard is based on the same measure of compensation to be paid any other
lessee, i.e., the bonus value of the lease rather than the lost profits of the lessee.
However, a condemning authority may acquire fee simple title subject to the existing
billboard lease and then, when the lease expires, require the billboard to be removed without
paying compensation. In this situation, the condemning authority is in the same position as any
other fee simple holder who can let a lease terminate without having to renew it. Patrick Media
Group, Inc. v. DuPage Water Commission, 258 Ill.App.3d 1068, 630 N.E.2d 958, 196 Ill.Dec.
793 (1st Dist. 1994); Lamar Advantage G.P. Co. v. Addison Park District, 354 Ill.App.3d 130,
820 N.E.2d 626, 289 Ill.Dec. 850 (2d Dist. 2004). This approach does not work when the
condemnation complaint seeks to acquire not only the fee simple interest but also the leasehold
interest. Drury Displays, supra.
A property owner is barred from introducing evidence of a proposal from a sign company to
lease a portion of the property for construction of a billboard. Evidence of specific rental income
from other billboard sites is also barred when no lease exists. These elements were considered too
speculative because a lease had not been executed and a sign had not been constructed in City of
Chicago v. Anthony, 136 Ill.2d 169, 554 N.E.2d 1381, 144 Ill.Dec. 93 (1990).
7. [7.39] Special-Use Property
Pursuant to §10-5-60 of the Eminent Domain Act, special-use property need not be valued
according to the market value standard. 735 ILCS 30/10-5-60. This merely codifies the commonlaw rule, expressed in City of Chicago v. Farwell, 286 Ill. 415, 121 N.E. 795, 797 (1918), that
“[a]s to such property the law permits a resort to any evidence available to prove value, such as
the amount of business done or the use made of the property, and the like.”
Farwell also shows the limitations of the special-use concept, for the Illinois courts have
given it a very narrow and specific meaning. Special-use property, in the legal sense, refers only
to property that “is of such nature and applied to such special use that it cannot have a market
value.” Id. Dicta in the Farwell opinion indicates that a church, college, cemetery, clubhouse, or
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terminal of a railroad may be considered special-use property. Since Farwell was decided in
1918, the changing nature of the real estate market, especially as related to sales of school
property, calls into question the validity of the court’s dicta.
More recently, the appellate courts in effect upheld an agreement to consider a cemetery to be
a special-use property in Department of Transportation of State of Illinois ex rel. People v. Bouy,
69 Ill.App.3d 29, 386 N.E.2d 1163, 25 Ill.Dec. 499 (4th Dist. 1979). Drawing a distinction
between special-use and special-purpose property, the Fifth District deemed a sod farm to be a
special-purpose property, which may be valued solely on an income approach. Department of
Public Works & Buildings of State of Illinois ex rel. People v. Brockmeier, 128 Ill.App.2d 395,
262 N.E.2d 345 (5th Dist. 1970). It also deemed a horseradish farm to have special value due to
the inherent nature of the soil. Department of Transportation of State of Illinois ex rel. People v.
Keller, 149 Ill.App.3d 829, 500 N.E.2d 982, 102 Ill.Dec. 881 (5th Dist. 1986).
The Supreme Court reemphasized the limited nature of the special-use category in People ex
rel. Director of Finance v. Young Women’s Christian Association of Springfield, 74 Ill.2d 561,
387 N.E.2d 305, 25 Ill.Dec. 649 (1979). The Supreme Court refused to grant special-use status to
the Springfield YWCA, which had a gymnasium, an indoor swimming pool, locker rooms, a
chapel, meeting rooms, and three kitchens. A witness also testified there was no known sale of a
structure similar to the YWCA building.
The Supreme Court also rejected the approach developed by the Third Circuit Court of
Appeals in United States v. 564.54 Acres of Land, More or Less, Situated in Monroe & Pike
Counties, Commonwealth of Pennsylvania, 576 F.2d 983 (3d Cir. 1978), rev’d on other grounds,
99 S.Ct. 1854 (1979), which requires the condemnor to value the property according to the
replacement or substitute facilities’ measure of compensation if the owner is a private, nonprofit
organization whose functions are reasonably necessary to the community.
Reinforcing the market value rule, the United States Supreme Court held that when a market
exists for the condemned property, the market value rule must be followed even if the condemned
property was owned by a public body, in this case, a sanitary landfill owned by the city of
Duncanville, Texas, that had the obligation to provide substitute facilities. United States v. 50
Acres of Land, 469 U.S. 24, 83 L.Ed.2d 376, 105 S.Ct. 451 (1984). The Supreme Court rejected
the city’s request to have its landfill valued in relation to the cost of acquiring a substitute facility
by ruling the same principles of just compensation presumptively apply to both private and public
condemnees under the Fifth Amendment.
The courts’ narrow application of the term “special use” contrasts with the somewhat broader
application generally given to it in the real estate profession. See American Institute of Real
Estate Appraisers, THE APPRAISAL OF REAL ESTATE (14th ed. 2013). As a result, when
reading a valuation report or discussing a tract with an appraiser, an attorney cannot simply
accept the appraiser’s conclusion that the property is special-use property.
If the property can be considered a special use and if the replacement theory of valuation is
used, the condemnor must be willing to pay for replacement of the entire building. The
condemnor cannot base its valuation on a proposed replacement building that has substantially
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less square footage than the building being acquired. City of Chicago v. George F. Harding
Collection, 70 Ill.App.2d 254, 217 N.E.2d 381 (1st Dist. 1965).
IV. VALUATION IN PARTIAL ACQUISITIONS
A. [7.40] General Principles
When a public body undertakes a partial acquisition, taking only a portion of the property and
leaving a remainder, three issues arise. First, what must be paid for the part taken? Second, has
the remaining property been damaged by the taking? Third, if the remainder has been damaged,
what is the amount of damage? Not only must the complete property be valued, thus raising the
same issues as in any complete acquisition, but also the question of damages raises additional
issues.
The Illinois Constitution of 1870 amended the 1848 Constitution by adding the words “or
damaged” to the eminent domain article. As a result, Article II, §13, of the Illinois Constitution of
1870 read: “Private property shall not be taken or damaged for public use without just
compensation.” The same language is repeated in Article I, §15, of the Illinois Constitution of
1970.
In the first case to construe the meaning of the additional words “or damaged,” the Supreme
Court stated: “[T]hey declare a new rule of civil conduct, from which spring new rights which did
not exist under the constitution of 1848.” Rigney v. City of Chicago, 102 Ill. 64, 75 (1881). The
new language overturned the old rule that authorized compensation only for an actual physical
taking. Further construing the extent of this change, the Supreme Court went on to say:
The question then recurs, what additional class of cases did the framers of the new
constitution intend to provide for which are not embraced in the old? While it is
clear that the present constitution was intended to afford redress in a certain class of
cases for which there was no remedy under the old constitution, yet we think it
equally clear that it was not intended to reach every possible injury that might be
occasioned by a public improvement. There are certain injuries which are
necessarily incident to the ownership of property in towns or cities which directly
impair the value of private property, for which the law does not, and never has,
afforded any relief. For instance, the building of a jail, police station, or the like, will
generally cause a direct depreciation in the value of neighboring property, yet that is
clearly a case of damnum absque injuria. So as to an obstruction in a public
street, — if it does not practically affect the use or enjoyment of neighboring
property, and thereby impair its value, no action will lie. In all cases, to warrant a
recovery it must appear there has been some direct physical disturbance of a right,
either public or private, which the plaintiff enjoys in connection with his property,
and which gives to it an additional value, and that by reason of such disturbance he
has sustained a special damage with respect to his property in excess of that
sustained by the public generally. In the absence of any statutory or constitutional
provisions on the subject, the common law afforded redress in all such cases, and we
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have no doubt it was the intention of the framers of the present constitution to
require compensation to be made in all cases where, but for some legislative
enactment, an action would lie by the common law. 102 Ill. at 80 – 81.
Subsequently, the Supreme Court elaborated on the meaning of these words in Illinois Iowa
Power Co. v. Rhein, 369 Ill. 584, 17 N.E.2d 582, 588 (1938), by stating that damages may arise if
the right to enjoy the remainder “is disturbed by physical means consisting of structures or actual
taking, or by originating results directly affecting the land not taken.”
The Supreme Court has repeatedly used this language in subsequent cases to define the type
of damages that must be compensated. For example, in County Board of School Trustees of Ogle
County v. Elliott, 14 Ill.2d 440, 152 N.E.2d 873 (1958), the court noted the physical disturbance
need not be tangible but only need be a disturbance of a right in the remainder. As indicated in
Rigney, supra, the owner’s right to recover damages may be asserted either in an action at law, if
no property is taken, or in a claim made as a defendant in a condemnation case. In either instance,
the right to damages is the same and is based on this constitutional provision. Illinois Power &
Light Corp. v. Peterson, 322 Ill. 342, 153 N.E. 577 (1926); Horn v. City of Chicago, 403 Ill. 549,
87 N.E.2d 642 (1949). When the damages do not involve a physical taking, for example, a taking
of access rights only, and the State of Illinois is involved, the appropriate forum may be the Court
of Claims rather than the circuit court. See Patzner v. Baise, 133 Ill.2d 540, 552 N.E.2d 714, 142
Ill.Dec. 123 (1990).
Despite the uncomplicated wording of the constitutional provision and the authoritative
interpretation of that wording in Rigney, supra, the courts have not always had an easy time in
deciding whether a specific claim of damage is compensable. For example, in 1901, the Supreme
Court indicated in dicta that an owner could claim damage based on the unsightliness of telegraph
poles that were to be erected on the part taken. Board of Trade Tel. Co. v. Darst, 192 Ill. 47, 61
N.E. 398 (1901). In 1927, the Supreme Court, rejecting its statement in Darst, refused to
recognize the unsightliness of poles as a proper element of damage. Illinois Power Co. v.
Wieland, 324 Ill. 411, 155 N.E. 272 (1927). The question of whether the unsightliness of power
poles is a proper, compensable item of damage is still unresolved, as evidenced by the different
positions adopted by the Second District in Commonwealth Edison Co. v. Danekas, 104
Ill.App.3d 907, 433 N.E.2d 736, 60 Ill.Dec. 694 (2d Dist. 1982), and the Third District in IowaIllinois Gas & Electric Co. v. Hoffman, 127 Ill.App.3d 496, 468 N.E.2d 977, 981, 82 Ill.Dec. 323
(3d Dist. 1984), which stated: “In so concluding, we respectfully disagree with the Second
District in the Danekas case.”
Because caselaw often determines whether a particular damage is compensable, the law may
change over time. In Rockstead v. City of Crystal Lake, 486 F.3d 963 (7th Cir. 2006), the court of
appeals was confronted with the question of whether Illinois required compensation to be paid to
an owner if government action led to intermittent flooding of the owner’s property. The court of
appeals acknowledged that prior Illinois decisions had precluded recovery for damages caused by
intermittent flooding. People ex rel. Pratt v. Rosenfield, 399 Ill. 247, 77 N.E.2d 697 (1948). But
since Rosenfield, the change in laws relating to flooded property, such as wetlands regulation,
caused the court of appeals to suggest Illinois may now recognize that certain types of
intermittent flooding may be deemed compensable. The United States Supreme Court
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subsequently ruled that government-induced temporary flooding may constitute a taking.
Arkansas Game & Fish Commission v. United States, ___ U.S. ___, 184 L.Ed.2d 417, 133 S.Ct.
511 (2012).
The court of appeals decision in Rockstead, supra, proved to be prophetic because the Illinois
Supreme Court subsequently held the Illinois takings clause may support claims arising out of
intermittent flooding in certain circumstances. Hampton v. Metropolitan Water Reclamation
District of Greater Chicago, 2016 IL 119861. Because Illinois follows the “lockstep” approach to
interpreting Illinois constitutional provisions, which are the same as federal constitutional
provisions, the Illinois Supreme Court applied the United States Supreme Court’s analysis to
takings claims in Arkansas Game & Fish, supra. The four concurring justices in Hampton argued
the recognition of possible takings claims for intermittent flooding did not overrule the court’s
previous position in Rosenfield, supra. However, the three concurring justices argued that
Hampton should explicitly overrule Rosenfield, because it does so implicitly.
The issues presented by damage to the remainder cases were set forth by the Supreme Court
in Department of Public Works & Buildings v. Barton, 371 Ill. 11, 19 N.E.2d 935, 937 – 938
(1939):
In ascertaining the compensation to be paid to an owner of land in eminent domain
proceedings, the rules are comparatively simple. The owner must first be
compensated for the full value of the land actually taken, without diminution in any
manner; he is entitled to damages, if shown by the evidence, for the remaining land
not taken, and should there be any special benefit to any part of the land not taken,
brought about by the improvement, such special benefit may be offset against
damages to land not taken. . . .
. . . The damage, if any, to land not taken, is ascertained by the difference between
the fair cash market value of the property, unaffected by the improvement, and its
fair cash market value as affected by it. . . . The special benefits, if any, accruing to
the property may not be set off against the land taken, but may be taken into
consideration as reducing or completely offsetting any damages to the remaining
part of the land. . . . In general, the effect upon land not taken is fixed by proving
the difference between the fair cash market value of the property, unaffected by the
improvement, and as affected by it, as this will necessarily embody not only any
damage but also any special benefit brought about by the improvement. [Citations
omitted.]
Under this formulation, the owner receives compensation for the property taken and for any
damage to the remaining property caused by the taking. Damage to the remainder is calculated by
subtracting the value of the remainder after the taking from the value of the remainder before the
taking. If the taking benefits the remainder property, these benefits are set off against damages to
the remainder only. They are not set off against the value of the property taken. In some other
states, benefits arising out of the taking can be set off against both the value of the part taken and
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the damage to the remainder. Under this approach, the benefits could offset both the part taken
and damages, yielding zero compensation.
The Illinois appellate court failed to distinguish these approaches when it decided City of
Springfield, Illinois v. West Koke Mill Development Corp., 312 Ill.App.3d 900, 728 N.E.2d 781,
245 Ill.Dec. 699 (4th Dist. 2000). The court approved use of a truncated “before-and-after”
approach, asserting that an appraiser could first value the entire parcel before the taking, then
value the remainder after the taking and subtract the value of the remainder from the value of the
entire property to determine the value of the area condemned. 728 N.E.2d at 785. In its opinion,
the court failed to discuss the long line of Illinois caselaw requiring a different formula.
The market value standard applies as equally to the determination of damage to the remainder
as to the determination of the value of the part taken. To claim damage, the owner must relate the
particular element of damage to the market value of the remaining property. Sanitary Dist. of
Rockford v. Johnson, 343 Ill. 11, 174 N.E. 862 (1931). Thus, the rules determining the valuation
date control the determination of the amount to be paid for damages as well as the amount to be
paid for the part taken. East St. Louis Light & Power Co. v. Cohen, 333 Ill. 218, 164 N.E. 182
(1928).
Since the issue of damage involves an assessment of the value of the remaining property after
the acquisition, it is necessary to make a complete appraisal of both the part taken and the entire
remaining property. Barton, supra; Central Illinois Light Co. v. Nierstheimer, 26 Ill.2d 136, 185
N.E.2d 841 (1962). Even if the owner does not claim any damage to the remainder, a complete
appraisal of the entire site, including any buildings on the site, must be made in all partial
acquisition cases. Lake County Forest Preserve District v. Kerrigan, 58 Ill.App.3d 249, 374
N.E.2d 27, 15 Ill.Dec. 734 (2d Dist. 1978). It is also necessary to specify the exact value of the
remainder after the acquisition. Department of Public Works & Buildings of State of Illinois ex
rel. People v. Crumbaugh, 1 Ill.App.3d 761, 274 N.E.2d 161 (4th Dist. 1971).
To determine the effect the taking will have on the remainder, either party may introduce
evidence of the proposed use of the part taken by the public body. Forest Preserve Dist. of Cook
County v. Eckhoff, 372 Ill. 391, 24 N.E.2d 52 (1939); Johnson, supra. Normally, this is done
through testimony or exhibits depicting the final plans for the project. However, in a case
involving a traverse and a motion to dismiss hearing in which the owner contested the
condemnor’s right to proceed, the appellate court denied the motion to dismiss even though the
condemnor’s plans were not final. Since the project would extend over several years, the court
authorized the acquisition based on plans that “were final to the extent that circumstances would
reasonably allow.” Department of Transportation of State of Illinois ex rel. People v. Keller, 127
Ill.App.3d 976, 469 N.E.2d 262, 265, 82 Ill.Dec. 728 (5th Dist. 1984). See also City of Chicago v.
First Bank of Oak Park, 178 Ill.App.3d 321, 533 N.E.2d 424, 127 Ill.Dec. 552 (1st Dist. 1988).
The parties may introduce the condemnor’s plans for construction on adjacent property as
long as the construction is reasonably certain to be done and the construction affects the value of
the remainder. Department of Transportation of State of Illinois ex rel. People v. Gass, 165
Ill.App.3d 562, 519 N.E.2d 90, 116 Ill.Dec. 500 (5th Dist. 1988) (permitting evidence of plans to
construct drainage ditches to alleviate drainage problems on remainder).
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The plans for the project may be introduced only for the limited purpose of advising the jury
of the nature of the improvement. The condemnor cannot introduce the plans or the history of the
plans’ development to indicate the owner knew of the project when the property was purchased
and thus should not be entitled to assert certain damages. Department of Transportation v.
Newmark, 34 Ill.App.3d 811, 341 N.E.2d 133 (5th Dist. 1975); Illinois State Toll Highway
Authority v. Humphrey Estate, 62 Ill.App.3d 316, 379 N.E.2d 626, 19 Ill.Dec. 754 (2d Dist.
1978).
Humphrey Estate demonstrates the effect that the plans for the improvement within the part
taken can have on an assessment of the market value of the remaining property. The case
involved an acquisition for the construction of an interchange on the East-West Tollway between
Aurora and Rock Falls, and the condemnor’s valuation witness testified that, due to the
construction of the interchange and the construction of new sewer and water lines, the highest and
best use of the remainder changed from farming to commercial purposes. The appellate court
approved valuation testimony based on this change.
Just as in complete acquisition cases, each party may adopt its own theory of the highest and
best use of the remainder and of damage to the remainder. As a consequence, neither party can
claim on appeal that the other party’s valuation witnesses failed to give due weight to a certain
element of damage. Department of Public Works & Buildings v. Finks, 10 Ill.2d 15, 139 N.E.2d
267 (1956). The determination of the weight to be given the valuation testimony and the resultant
damage that has or has not been sustained remains in the hands of the jury.
All elements of damage to the remainder must be presented in the trial of the condemnation
case. The doctrine of res judicata prevents the owner from claiming additional damage after
completion of the eminent domain proceeding. Lake Ka-Ho, Inc. v. Kramer, 131 Ill.App.3d 782,
475 N.E.2d 1379, 86 Ill.Dec. 812 (5th Dist. 1985).
When reviewing decisions or commentaries on the law respecting damage in eminent
domain, one will often encounter two different descriptions of damages: consequential and
severance. Although this terminology is not used consistently, “consequential damage” generally
refers to damage that is non-compensable, such as lost business opportunity, while “severance
damage” refers to compensable damage caused by the acquisition. In addition, in many of the
older Illinois decisions, the word “damages” is used to describe the compensation to be paid both
for the part taken and for depreciation in value of the remainder.
B. [7.41] Cross-Petition
If an owner intends to claim damage to the remainder and if the complaint filed by the
condemnor does not describe the remainder, then the owner must file a pleading known as a
“cross-petition.” In this pleading, the owner must describe the land that will be damaged by the
taking, state the ownership interest in the land, and allege that the taking will in fact damage the
remaining land. Filing a proper cross-petition is required to bring the remaining property within
the jurisdiction of the court, just as filing the original condemnation complaint is required to bring
the part taken within the jurisdiction of the court. If the remainder is not described in the original
complaint and if a cross-petition is not filed, the court cannot consider the question of damage to
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the remaining property. Central Illinois Public Service Co. v. Rider, 12 Ill.2d 326, 146 N.E.2d 48
(1957). However, a cross-petition can be used only to raise the issue of damage to the remainder.
It cannot be used in place of a traverse or motion to dismiss.
The owner should file the cross-petition as soon as possible. Although courts have granted an
owner’s motion to file a cross-petition on the date of trial provided there was no surprise
(Department of Public Works & Buildings of State of Illinois v. Hall, 30 Ill.App.3d 831, 333
N.E.2d 701 (2d Dist. 1975)), courts have, in other situations, refused motions to file the crosspetition on the date of trial (Forest Preserve District of Cook County v. Krol, 12 Ill.2d 139, 145
N.E.2d 599 (1957)) or even six days prior to the date of trial when the original condemnation
complaint had been on file for over one year (Lake County Forest Preserve District v.
Continental Illinois National Bank & Trust Company of Chicago, 35 Ill.App.3d 942, 343 N.E.2d
6 (2d Dist. 1976)).
Filing a cross-petition may also allow the owner to request that the trial court, pursuant to
S.Ct. Rule 233, exercise its discretion to grant the owner’s motion to proceed first at all stages of
the trial. Department of Business & Economic Development v. Brummel, 52 Ill.2d 538, 288
N.E.2d 392 (1972).
C. [7.42] Valuation of Part Taken
In a partial acquisition, the parties must value the part taken as part of the entire tract before
the taking. They cannot value it as a distinct entity unrelated to the rest of the tract. Chicago, B. &
N. Ry. v. Bowman, 122 Ill. 595, 13 N.E. 814 (1887); Tri State Park District v. First National Bank
of Cicero, 33 Ill.App.3d 348, 337 N.E.2d 204 (2d Dist. 1975). Thus, the condemnor may not ask
a witness if the irregular shape of the part to be acquired would affect its value. The owner is
entitled to have the part taken valued as a portion of the entire holding, not separately.
Department of Public Works & Buildings v. Griffin, 305 Ill. 585, 137 N.E. 523 (1922).
When the condemnor acquires a vacant strip that is part of a larger, improved tract, and when
the improvements on the remaining portion of the tract add to the value of the entire tract, the
condemnor must value the vacant strip as part of and in relation to this larger, improved tract and
not as separate, vacant land. Forest Preserve Dist. of Cook County v. Draper, 387 Ill. 149, 56
N.E.2d 410 (1944); Department of Public Works & Buildings of State of Illinois ex rel. People v.
Butler, 5 Ill.App.3d 134, 283 N.E.2d 109 (4th Dist. 1972). Conversely, if the existing
improvements on the whole property do not contribute to its market value because the highest and
best use is different from the existing use, the appraiser should not accord any contributory value
to the improvements on the part taken. Illinois State Toll Highway Authority v. Itasca Bank &
Trust Co., 216 Ill.App.3d 926, 576 N.E.2d 1221, 160 Ill.Dec. 267 (2d Dist. 1991).
Simply because the improvements on the remainder add to the value of the entire tract, it does
not follow that the vacant land to be acquired is as valuable as the remaining land that has
improvements on it, nor does it follow that every part of the vacant land is as valuable as every
other part. The part taken may be valued on a different basis than the remainder as long as the
valuation approach is consistent. Department of Public Works & Buildings v. Foreman State
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Trust & Savings Bank, 363 Ill. 13, 1 N.E.2d 75 (1936); Itasca Bank & Trust, supra; City of
Springfield, Illinois v. West Koke Mill Development Corp., 312 Ill.App.3d 900, 728 N.E.2d 781,
245 Ill.Dec. 699 (4th Dist. 2000).
However, the part taken may not be valued just by adding the value of the land, if vacant, and
the value of the improvements on the part taken. The appraiser must always consider how the part
taken relates to the value of the whole property. Department of Transportation v. First Bank of
Schaumburg, 260 Ill.App.3d 490, 631 N.E.2d 1145, 197 Ill.Dec. 686 (1st Dist. 1992). Should the
part taken include improvements, they must be valued as part of the part taken and not separately.
For example, in Peoria, B. & C. Traction Co. v. Vance, 234 Ill. 36, 84 N.E. 607 (1908), the
condemnor acquired a strip of property along one side of the owner’s farm. The strip included
trees, and the Supreme Court held that, although the owner could not prove the value of the trees
independent of the part taken, the owner could value the part taken so as to account for any
increased value by reason of the presence of the trees on the part taken. On the other hand, the
part taken may only have nominal value if it had previously been encumbered with an easement,
such as a public highway easement. Department of Transportation v. Bolis, 313 Ill.App.3d 982,
730 N.E.2d 1152, 246 Ill.Dec. 687 (3d Dist. 2000).
Relying on its understanding of the “unit rule,” the appellate court in Department of
Transportation, State of Illinois v. Kelley, 352 Ill.App.3d 278, 815 N.E.2d 1214, 1215, 287
Ill.Dec. 411 (3d Dist. 2004), held that although not every part of a tract may be as valuable as
other parts, when the property does not have “easily delineated” separate uses, “dividing
indistinct portions of the whole” into separate zones of value is improper.
A discussion of the unit rule in partial takings is in Department of Transportation ex rel.
People v. Raphael, 2014 IL App (2d) 130029, 9 N.E.3d 1120, 381 Ill.Dec. 1. At issue was
whether the appraiser had properly considered the contributory value of the improvement located
on the remainder property when valuing the part taken. The appellate court described the unit rule
in partial takings as follows:
The unit rule provides that, in partial takings, the part taken must be valued as part
of the whole, considering its best use. . . . However, not every part of a tract will be
as valuable as other parts. . . . Thus, the unit rule does not require the whole
property to be valued on a single proportionate per-square-foot basis, ignoring the
difference between the values of the part taken and the remainder. [Citations
omitted.] 2014 IL App (2d) 130029 at ¶18.
While the appellate court’s summary of the unit rule appears to be straightforward, the
application of the unit rule to actual takings remains difficult. The Raphael court held both the
owner’s appraiser and the Illinois Department of Transportation’s appraiser had violated the unit
rule: the owner’s appraiser for assigning a uniform square-foot value over the whole property,
and IDOT’s appraiser for failing to consider the contributory value of improvements on the
remainder when valuing the part taken.
In Illinois, unlike some other jurisdictions, benefits arising out of the proposed improvement
may be set off against claims of damage to the remainder to reduce the amount of damage but
cannot be set off against the value of the part taken. The condemnor must compensate the owner
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for the full value of the part taken without any deduction for benefits. Griffin, supra. Because
benefits cannot be set off against the part taken, the practitioner should view with caution the
“before-and-after” appraisal formula cited in West Koke Mill Development, supra, 728 N.E.2d at
785.
D. [7.43] Stipulations
When the owner files a cross-petition or otherwise claims damage to the remainder, either the
owner or the condemnor can show what use will be made of the part taken to demonstrate what
effect the taking will have on the remainder. Forest Preserve Dist. of Cook County v. Eckhoff,
372 Ill. 391, 24 N.E.2d 52 (1939). As a corollary of this rule, the condemnor has the absolute
right to stipulate to the use of the part taken or to the benefits that will be given to the owner as
part of the public project to mitigate a claim of damage to the remainder. Such a stipulation is
binding on the condemnor and must be considered by the jury. East Peoria Sanitary Dist. v.
Toledo, P. & W. R.R., 353 Ill. 296, 187 N.E. 512 (1933). The stipulation must accurately state the
proposed use of the property to be acquired; it cannot be misleading. West Skokie Drainage Dist.
v. Dawson, 243 Ill. 175, 90 N.E. 377 (1909).
Stipulations may cover such areas as the access to be provided to the remainder after
acquisition (Department of Public Works & Buildings of State of Illinois ex rel. People v. Kelly,
40 Ill.App.3d 896, 353 N.E.2d 195 (1st Dist. 1976)), the protective measures to be taken to avoid
disturbing the remaining property (Department of Transportation of State of Illinois ex rel.
People v. Mullen, 120 Ill.App.3d 268, 457 N.E.2d 1362, 75 Ill.Dec. 803 (4th Dist. 1983)), or the
landscaping provided by the condemnor (Illinois State Toll Highway Authority v. Heritage
Standard Bank & Trust Co., 196 Ill.App.3d 5, 552 N.E.2d 1151, 142 Ill.Dec. 410 (2d Dist.
1990)).
Since the condemnor has the right to alter and amend its plans for a public improvement as it
becomes aware of new facts, courts have encouraged stipulations to reduce damages. Not only do
stipulations give the condemnor needed flexibility, they also enable a jury to make its
determination of damages on the basis of what actually will be done by the condemnor. These
same reasons support the courts’ liberal exercise of their discretion to allow amendments to
condemnation complaints “in order that the real controversy might be presented and the issues
finally, and fairly, determined.” Department of Public Works & Buildings of State of Illinois ex
rel. People v. Greenlee, 63 Ill.App.2d 425, 211 N.E.2d 771, 774 (2d Dist. 1965).
E. [7.44] Definition of “Remainder Property”
An owner cannot claim damage to the remainder unless the property allegedly damaged
qualifies as remainder property. Whether property does qualify is a question of law for the court
to decide. Department of Conservation of State of Illinois v. Franzen, 43 Ill.App.3d 374, 356
N.E.2d 1245, 1 Ill.Dec. 912 (2d Dist. 1976); Illinois Department of Natural Resources v. Pedigo,
348 Ill.App.3d 1044, 811 N.E.2d 761, 285 Ill.Dec. 274 (4th Dist. 2004). In City of Chicago v.
Equitable Life Assurance Society of United States, 8 Ill.2d 341, 134 N.E.2d 296, 299 (1956), the
classic case defining “remainder property,” the Supreme Court stated:
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In order to recover damages in an eminent domain proceeding for property not
actually taken, it must appear that this and the condemned land are contiguous, that
is, they are either physically joined as a single unit or so inseparably connected in
use that the taking of one will necessarily and permanently injure the other.
This case involved the acquisition of a parking lot owned by the Equitable Life Assurance
Society but rented to Wieboldt Stores, Inc., for free customer parking to service a store. The store
was located in the same block as the parking lot but was separated from it by an alley 16 feet
wide. At trial, the lower court had refused to permit Equitable Life and Wieboldt to introduce
evidence of damage to the store arising from the acquisition of the parking lot. On appeal, the
Supreme Court affirmed the court’s ruling barring this evidence. Since the two properties were
not physically connected, the only question was whether they were “inseparably connected in
use.” Id. Holding that they were not, the Supreme Court pointed to the following factors:
1. Were the two properties acquired at the same time?
2. Were the two properties acquired for the same use?
3. Are the present uses of the two properties the same?
4. Do properties having similar uses also require both sites to operate?
5. Will the proposed use of the acquired property by the condemnor be the same as or
different than the present use?
6. Can substitute property be located in the area?
7. Does the alleged damage to the other property arise out of the present use of the
unacquired property, or does it stem from a proposed use of the unacquired property in
conjunction with the acquired property?
The court concluded by noting that, although the related use of the two properties was
“convenient or even beneficial,” the defendants failed to prove that the taking of the parking lot
would “necessarily and permanently injure the store property.” 134 N.E.2d at 300.
A similar case involving the acquisition of a parking lot separated by a street from an office
building under the same ownership yielded a similar result in Lake County Public Building
Commission v. LaSalle National Bank, 176 Ill.App.3d 237, 531 N.E.2d 110, 125 Ill.Dec. 931 (2d
Dist. 1988). The appellate court held that the property owner had failed to meet its burden of
proving that the two properties were so inseparably connected in use that the condemnation of the
parking lot necessarily injured the office building parcel. In an interesting case upholding the
principle of substitute condemnation (condemning one property for conveying it to another
property owner to reduce damage to the remainder), the appellate court ruled that a parking lot
located across the street from a commercial building was part of the whole property. The
beneficial owner of both properties was a partnership that “reaped all of the economic benefits
resulting from both properties, including rents collected from and improvements to either
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property . . . the partnership also incurred any economic losses resulting from both properties.”
City of Chicago v. Midland Smelting Co., 385 Ill.App.3d 945, 896 N.E.2d 364, 392 – 393, 324
Ill.Dec. 578 (1st Dist. 2008).
Lack of a unified use also precluded an owner from claiming damage to the remainder when
one property was separated from the other by a highway. Department of Transportation v. Shaw,
68 Ill.2d 342, 369 N.E.2d 884, 12 Ill.Dec. 177 (1977).
Lack of physical contiguity prevented consideration of damage to the remainder in City of
Quincy v. V.E. Best Plumbing & Heating Supply Co., 17 Ill.2d 570, 162 N.E.2d 373 (1959). The
City of Quincy acquired a lumberyard, and the owner filed a cross-petition alleging that because
of the unity of use, the owner’s mill, located three blocks from the lumberyard, would be
damaged. Even though the Supreme Court stated the operations on the two properties were an
integral part of one unified business and the use of the lumberyard was beneficial to the use of the
mill, since the owner failed to prove no other site was available to reestablish the lumberyard, it
could not claim damage to the mill.
On the other hand, the appellate court held lack of physical contiguity does not, by itself, bar
consideration of several parcels as the whole property if other factors establish a unity of use.
Pedigo, supra.
An owner cannot avoid these restrictions by artificially designating a parcel’s boundaries
(County of Cook v. LaSalle National Bank, 1 Ill.App.3d 579, 274 N.E.2d 919 (1st Dist. 1971)),
nor can the condemnor claim a lack of physical contiguity as a result of previous eminent domain
acquisitions that run through the middle of the property (Chicago & Pac. R.R. v. Hildebrand, 136
Ill. 467, 27 N.E. 69 (1891)).
If there is complete identity of the beneficial ownership of separate land trusts that own
adjacent properties, a claim for damage may be presented. Franzen, supra.
Unity of use, contiguity, and title need not occur on the date of filing the petition to condemn
to claim damage to the remainder, according to the rule in State of Illinois Medical Center
Commission v. United Church of Medical Center, 142 Ill.App.3d 498, 491 N.E.2d 1327, 96
Ill.Dec. 867 (1st Dist. 1986). The Medical Center Commission condemned three contiguous lots
used by the defendant as a parking lot for its employees and for parishioners who attended the
church located immediately adjacent to the three lots. At the time of filing the eminent domain
action, however, the parking lots were owned by a predecessor Methodist congregation, and,
later, title passed to a Presbyterian church. Not until after the complaint had been filed did the
defendant obtain formal legal title to the condemned property.
Nevertheless, the appellate court held the defendant was entitled to file a cross-petition
claiming damage to the remainder as a result of the condemnation. The court noted no statute or
previous Illinois case had discussed at what time in an eminent domain proceeding the unity of
title or interest in property taken or damaged is to be determined. Apparently, the elements of
contiguity, common use, control over the property at the date of filing, and eventual passage of
title after the date of filing overcame the initial lack of title.
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Thirteen years later, the First District Appellate Court qualified its prior decision in United
Church of Medical Center when it held unity of title must be determined as of the time the
complaint was filed. Department of Transportation v. Chicago Title & Trust Co., 303 Ill.App.3d
484, 707 N.E.2d 637, 236 Ill.Dec. 510 (1st Dist. 1999). The court specifically held:
Logically, the unity of title in a remainder case should be determined by examining
who the owner of the property was at the time the petition to condemn was filed,
because the valuation of the property is determined as of the date the complaint for
condemnation is filed. 707 N.E.2d at 646.
This approach provides more certainty to the outcome.
More recently, the appellate court drew back somewhat from an emphasis on assessing the
actual conditions on the valuation date in Pedigo, supra. The court determined there was
sufficient unity of use between parcels even though the condition that gave rise to that unity
apparently was not present on the valuation date. In an opinion that would be much easier to
understand if the appellate court had attached a plat of the property at issue, the unity of use was
based on the potential use of the property to serve as an access point for obtaining water from a
lake to service the sod farm located on the other parcels in drought conditions, even though a
drought had not occurred for many years.
Tenants may also claim damages under certain circumstances. In Chicago & Evanston R.R. v.
Dresel, 110 Ill. 89 (1884), the plaintiff railroad condemned Dresel’s leasehold interest in four lots
that were owned by the railroad. After the taking, Dresel continued to lease adjacent lots and to
own lots adjacent to the leased lots, all of which he used to operate a flower garden. Based on this
unity of use, the Supreme Court held Dresel could claim damage arising from the taking of his
leasehold rights and thus could show the extent to which his remaining leasehold interest and his
fee interest were damaged.
The lessee did not do as well in City of Lake Forest v. First National Bank of Lake Forest, 52
Ill.App.3d 893, 368 N.E.2d 156, 10 Ill.Dec. 670 (2d Dist. 1977), in which the tenant canceled his
lease to the parking lot to be acquired at the time of condemnation and could not prove that the lot
condemned and the lot owned in fee were so interrelated as to warrant their consideration as a
single parcel. Similarly, lack of unity of title prevented the owners of a farm that was partially
taken from claiming damage to the adjoining farm they did not own but merely leased. They
were, of course, permitted to claim damage to the remaining property they did own. Department
of Transportation of State of Illinois ex rel. People v. Gass, 165 Ill.App.3d 562, 519 N.E.2d 90,
116 Ill.Dec. 500 (5th Dist. 1988).
Single parcel status was also denied to a property that was under option to the owner of the
adjacent parcel in City of Chicago ex rel. Schools v. Albert J. Schorsch Realty Co., 127 Ill.App.2d
51, 261 N.E.2d 711 (1st Dist. 1970).
F. [7.45] Proper Elements of Damages
Since the measure of damages for land not taken is the difference between the fair cash
market value of the remainder before the taking and the fair cash market value of the remainder
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after the taking, any claim for damages must be related to the depreciation in the market value of
the remainder. Thus, the alleged damages must directly affect the market value and cannot be
merely possible or speculative. Department of Public Works & Buildings v. Hubbard, 363 Ill. 99,
1 N.E.2d 383 (1936); County Board of School Trustees of Ogle County v. Elliott, 14 Ill.2d 440,
152 N.E.2d 873 (1958).
As in any other contested proceeding, the party who alleges a specific element of damage
must not only relate that element in theory to the market value of the remainder but also must
prove that the element actually exists. A good example of the standard of proof required is found
in Hubbard, supra. The Department of Public Works and Buildings sought to acquire property
running through the defendant’s farmland to construct a new highway. At the trial, the defendant
alleged damage to the remaining property, which would be split by the highway, due to the
danger of crossing the road and the inconvenience of driving livestock from one field to another.
In assessing this claim, the Supreme Court stated that generally a claim for damage due to the
danger in crossing a highway was too remote and speculative. However,
where there is specific evidence of danger of loss by killing livestock or
inconvenience and expense in herding them across the highway, and where such
danger or inconvenience in fact depreciates the value of land not taken, such become
a proper element to be considered in determining the damage to land not taken. 1
N.E.2d at 385.
See also Department of Public Works & Buildings v. Caldwell, 301 Ill. 242, 133 N.E. 642 (1921),
and Department of Public Works & Buildings v. McBride, 338 Ill. 347, 170 N.E. 295 (1930), in
which the Supreme Court held the element of crossing the highway was improper in the first case
and proper in the second.
Another example of the required standard of proof appears in Department of Public Works &
Buildings of State of Illinois ex rel. People v. Bills, 66 Ill.App.2d 170, 213 N.E.2d 110 (3d Dist.
1965), in which the appellate court said an owner could not claim damage to the remainder for
resulting surface drainage problems if the owner did not offer proof that the drainage problems
would occur.
Application of the market value standard means that certain elements may, in one situation,
properly form the basis for a claim of damage and, in another situation, not form the basis for a
claim. For example, taking a 10-foot strip from the frontage of a lot may cause damage to the
remainder if the remaining lot is only 100-feet deep and is improved with a fast-food restaurant,
while taking the same strip may not cause damage to the remainder if the remaining lot is 400 feet
deep and vacant.
The location of the property, its use, and even the engineering standards governing the public
project may also determine whether certain damage claims are proper. In Trunkline Gas Co. v.
O’Bryan, 21 Ill.2d 95, 171 N.E.2d 45 (1960), the plaintiff acquired an easement across the
owner’s farm to install a gas pipeline. At trial, the owner claimed damage to the remainder due to
the danger of fire and explosion if a leak from the gas pipeline should occur. The trial court
excluded the testimony of those witnesses who based their opinions on the danger of fire and
explosion. Affirming the trial court, the Supreme Court noted that this element of damage would
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be proper if the pipeline had been located near buildings or residences or if the remaining
property had a highest and best use for factory or residential purposes. However, since a pipeline
running through farmland represents no proximity to real danger, the alleged element of fear of
fire and explosion was too speculative in this particular situation.
The Supreme Court also refused to accept the owner’s analogy to 19th- and early 20thcentury railroad rights-of-way cases in which the danger of fire from passing trains was
considered a proper element of damage. The court noted the engineering and technology of the
19th- and early 20th-century trains were such that fires arising from the emission of sparks from
the locomotives were common occurrences and distinguished that situation from the modern
engineering of a gas pipeline that presents little likelihood of frequent explosions.
In addition to requiring damage claims be related to market value and actually proven, the
courts also impose two additional requirements. The first is that the claim for damages be
consistent with the condemnor’s proposed use of the part taken and proposed stipulations. The
Supreme Court in O’Bryan held the owners could not allege damage based on the possibility the
pipeline would interfere with future tiling and drainage when the condemnor had agreed to restore
all drain tile to its precondemnation condition. It is improper to base damages on allegations of
what would occur that are contrary to the condemnor’s binding statement.
The second additional requirement stems from the principle that compensation must be fair to
both the public body and the owner. This requirement prohibits duplication of compensation by
including the same elements in determining the value of the part taken as are used in determining
the damage to the remainder. Peoria, B. & C. Traction Co. v. Vance, 234 Ill. 36, 84 N.E. 607
(1908); Department of Transportation of State of Illinois ex rel. People v. Bouy, 69 Ill.App.3d 29,
386 N.E.2d 1163, 25 Ill.Dec. 499 (4th Dist. 1979).
Due to the application of the market standard to damage claims, the suggested technique for
introducing evidence of damage to the remainder is to have the valuation witness testify
according to the following guidelines:
1. State the opinion of the market value of the whole property, e.g., $100,000.
2. State the opinion of the market value of the part taken as a part of the whole property, e.g.,
$15,000.
3. State the market value of the remainder as part of the whole property before the
acquisition (merely an artificial mathematical result reached by subtracting the value of the part
taken from the value of the whole property), e.g., $85,000.
4. State the elements of damage to the remainder and give an explanation of each element.
5. State an opinion of the market value of the remainder after the taking and as affected by
construction of the contemplated improvement, e.g., $55,000.
6. The difference between the market value of the remainder before and the market value of
the remainder after is the amount of damage to the remainder, e.g., $85,000 – $55,000 = $30,000.
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These general requirements are imposed on any claim of damage. However, there are as
many potential elements of damage as there are types of properties. While it would unduly
lengthen this chapter to review each decision that has considered damage to the remainder,
certain situations occur with such frequency or are so frequently misunderstood as to warrant the
short review in §§7.46 – 7.50 below.
1. [7.46] Cost To Cure
After a partial taking, an owner frequently must adapt the remaining property to the changed
conditions caused by the acquisition. For example, if the part taken includes paved parking
spaces, the owner may have to replace the lost spaces by constructing a new parking area on the
remaining property. The cost of replacing the lost spaces is known in the appraisal profession as
the “cost to cure.”
Cost to cure items may include relocation costs, as in the parking lot example, or
reconstruction costs when the part taken includes a portion of the building. These costs are treated
in the same fashion as any other element of damage to the remainder. If they are reasonable and
economical, expenditures made in adapting the remainder to use after the taking are admissible as
evidence of the depreciation in value of the remainder but they are not recoverable items in
themselves. Department of Public Works & Buildings v. Bloomer, 28 Ill.2d 267, 191 N.E.2d 245
(1963). The modern approach to costs to cure can be summarized:
The rule in Illinois for determining the diminution in market value of land not taken
allows consideration of expenses made necessary by reason of the improvement in
adjusting the property to the changed conditions brought about by the taking. Such
costs cannot be recovered specifically and are not the measure of damages but are
factors that can be considered in determining a reduction of the market value of the
whole. City of Freeport, Illinois v. Fullerton Lumber Co., 98 Ill.App.3d 218, 423 N.E.2d
924, 928, 53 Ill.Dec. 255 (2d Dist. 1981).
Since costs to cure must meet the same tests as other elements of damage, they cannot be too
speculative. Thus, in Department of Transportation v. Quincy Coach House, Inc., 64 Ill.2d 350,
356 N.E.2d 13, 1 Ill.Dec. 13 (1976), the Illinois Department of Transportation’s valuation
witnesses, faced with an acquisition that included a substantial portion of a restaurant’s parking
lot, employed a cost to cure approach that depended on obtaining replacement parking. However,
the cost of replacement parking did not involve repaving a portion of the available remaining
property; instead, the appraisers assumed that a lot across the street could be purchased for 125
percent of its appraised value, and they used this cost as a means of arriving at an opinion of the
depreciation of the remainder. While agreeing that an owner has a duty to mitigate damages, the
Supreme Court held there was no guarantee the owner could buy the lot for the assumed price,
and therefore, the cost to cure was too speculative. Other states have also barred elements of cost
to cure when the cure involved going outside the remainder property. Board of Lucas County
Commissioners v. Mockensturm, 119 Ohio App.3d 223, 695 N.E.2d 15 (1997).
Nor can costs to cure be used as guises for introducing a replacement theory of value. City of
Chicago v. Cunnea, 329 Ill. 288, 160 N.E. 559 (1928). Since the costs can be used only to
determine depreciation in value of the remaining property, the amount of costs cannot exceed the
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value of the remainder. Department of Transportation of State of Illinois v. Gonterman, 41
Ill.App.3d 62, 354 N.E.2d 76 (5th Dist. 1976). If the cost of reconstruction or mitigation of
damages is higher than the expert’s highest opinion of the diminution in market value of the
remainder, the court cannot allow these costs in evidence.
This becomes particularly troublesome when the taking involves a portion of a building. In
these cases, the jury must determine whether the remainder building has any value. If it does not,
or if the reconstruction costs are excessive, then the owner should receive the value of the entire
property plus the cost of removing the remaining portion of the building less the value of the
remainder after the building has been removed. If the jury determines the remaining building may
be rehabilitated according to a feasible plan, and if such rehabilitation will minimize the damage
to the remainder, then the jury may consider the reconstruction costs in determining damages to
the remainder. City of Chicago v. Callender, 396 Ill. 371, 71 N.E.2d 643 (1947). See also
Department of Public Works & Buildings v. McBride, 338 Ill. 347, 170 N.E. 295 (1930).
These costs must not only be economically reasonable but must also relate to the market
value of the remainder. A valuation witness cannot merely total the various costs and use that as
his or her opinion of damage. In Department of Transportation of State of Illinois ex rel. People
v. Jones, 44 Ill.App.3d 592, 358 N.E.2d 402, 405 – 406, 3 Ill.Dec. 235 (5th Dist. 1976), the court
stated: “Where it appears that an expert witness has based his valuation solely on specific
elements of damage without regard to what a willing buyer or seller would agree upon, that
testimony is improper and should be stricken.” See also Department of Public Works & Buildings
v. Caldwell, 301 Ill. 242, 133 N.E. 642 (1921); Department of Transportation v. Bolis, 313
Ill.App.3d 982, 730 N.E.2d 1152, 246 Ill.Dec. 687 (3d Dist. 2000); Rock River Water
Reclamation District v. Sanctuary Condominiums of Rock Cut, 2014 IL App (2d) 130813, 30
N.E.3d 1081, 391 Ill.Dec. 443.
Costs must also be related solely to the changed conditions caused by the taking; they cannot
include items that affected the property before the acquisition. For example, in Department of
Public Works & Buildings v. Hubbard, 363 Ill. 99, 1 N.E.2d 383 (1936), the owner’s damage
claim included the costs of constructing and maintaining new fences after a new road was built
across part of his property. Observing that the cost of additional fencing made necessary by the
improvement was a proper element of damage, the Supreme Court went on to note that if the
owner had originally been required to maintain a fence that was acquired in the part taken, then
“he is entitled to have considered as an element of damages to land not taken the cost and
maintenance of only such additional fence beyond the amount originally required of him as is
necessitated by the improvement.” 1 N.E.2d at 385.
When actually presenting cost to cure evidence, the following should be kept in mind:
a. A witness may introduce plans to reconstruct or adapt the property after the acquisition.
Fullerton Lumber, supra.
b. A witness may not introduce letters from contractors estimating various costs if the
authors are not present in court. Department of Public Works & Buildings v. Maddox, 21 Ill.2d
489, 173 N.E.2d 448 (1961). Query whether this decision remains valid in the face of Ill.R.Evid.
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705, Department of Transportation v. Beeson, 137 Ill.App.3d 908, 485 N.E.2d 511, 92 Ill.Dec.
700 (2d Dist. 1985), and City of Chicago v. Anthony, 136 Ill.2d 169, 554 N.E.2d 1381, 144
Ill.Dec. 93 (1990).
c. A witness may testify in line with the testimony of IDOT’s witness in Bloomer, supra, in
which the appraiser
1. appraised the entire property;
2. determined the value of the part taken;
3. determined the value of the remainder before the taking;
4. gave an opinion of the reduction in value of the remainder caused by the acquisition;
and
5. described each of the factors contributing to the reduction in value of the remainder
as “He testified that the factors causing this reduction were . . . the necessity for
additional fencing, which reduced the land value by its reasonable cost of $1,800.”
191 N.E.2d at 248.
This approach contrasts with the mere effort to collect specific amounts by itemizing claimed
elements of damage, which was disapproved in Department of Transportation of State of Illinois
v. Galley, 12 Ill.App.3d 1072, 299 N.E.2d 810 (5th Dist. 1973).
The strict disclosure requirements imposed by S.Ct. Rule 213 require the appraiser to
correctly use cost to cure items during discovery. In Department of Transportation, State of
Illinois v. Crull, 294 Ill.App.3d 531, 690 N.E.2d 143, 228 Ill.Dec. 834 (4th Dist. 1998), the
appellate court reversed the trial court for permitting an appraiser on the witness stand to
reformulate his opinion to delete his improper use of the cost to cure approach. Because his
reformulated opinion had not been disclosed during discovery, the trial court should have struck
the appraiser’s opinion.
In summary, there is no outright ban on the use of costs to cure in assessing damage to the
remainder. The ban that has been enforced is a ban against the practice of itemizing these costs
and attempting to collect specific amounts when no effort has been made to relate them to the
market value of the remainder.
2. [7.47] Reduction in Size
One of the most common elements of damage is the claim that the taking will reduce the size
of the property and therefore will make development or use of the remainder more difficult.
County Board of School Trustees of Ogle County v. Elliott, 14 Ill.2d 440, 152 N.E.2d 873 (1958);
Lake County Forest Preserve District v. Flood, 51 Ill.App.3d 32, 366 N.E.2d 1044, 9 Ill.Dec. 533
(2d Dist. 1977). However, unlike antitrust law, which features per se violations, there are no per
se damage elements in eminent domain law. As proof of this, the appellate court in Department of
Business & Economic Development of State of Illinois v. Brummel, 1 Ill.App.3d 683, 274 N.E.2d
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605 (2d Dist. 1971), rev’d on other grounds, 52 Ill.2d 538 (1972), held that the trial court
properly struck the testimony of an appraiser whose opinion of damage was based on the
reduction in size of the remainder when the part taken was used for an entirely different purpose
than the remainder and was separated from the remainder by a 25-foot easement for railroad
tracks. The lesson is clear: each element of damage must be proven to have a direct effect on the
remainder.
3. [7.48] Noise
In many old cases, the courts refused to acknowledge allegations of increased noise from the
improvement to be a proper element of damage. The courts reasoned this claim was too
speculative. However, two cases feature damage claims based on allegations of increased noise.
Department of Transportation ex rel. People v. Catholic Diocese of Belleville, 63 Ill.App.3d 683,
379 N.E.2d 1343, 20 Ill.Dec. 275 (5th Dist. 1978), contains a good review of the type of evidence
that might be presented in a dispute over whether noise from a road-widening will adversely
affect the remainder, in this case, a school. Even more interesting is the appellate court’s decision
in Iowa-Illinois Gas & Electric Co. v. Hoffman, 127 Ill.App.3d 496, 468 N.E.2d 977, 82 Ill.Dec.
323 (3d Dist. 1984), which upheld admitting evidence that noise from electric transmission lines
would likely create stress to the hogs on the remaining farm property and thus be a proper
element of damage.
4. [7.49] Unsightliness
Whether the unsightliness of the proposed improvement is a proper element of damage to the
remainder has long been and continues to be a source of controversy within the Illinois courts.
The history of the various approaches taken to this issue demonstrates the difficulty found in
construing the meaning of the term “or damaged” in the Illinois Constitution. See ILL.CONST.
art. I, §15.
Most of these cases arose when a utility company condemned an easement for a new power
line and the owners claimed the unsightliness of the proposed power poles would damage the
remainder. In dicta in Board of Trade Tel. Co. v. Darst, 192 Ill. 47, 61 N.E. 398 (1901), the
Supreme Court indicated that unsightliness of power poles was a proper element of damage to the
remainder. Shortly thereafter, in Sanitary District of Chicago v. Baumbach, 270 Ill. 128, 110 N.E.
331 (1915), the Supreme Court recognized a claim of damage for unsightliness due to
construction of high and unsightly spoil banks adjacent to property that could be subdivided for
residence or business purposes.
However, in 1926, 25 years after Darst, supra, the Supreme Court held an appraiser could not
base a claim for damage to the remainder on the unsightliness of the proposed power poles.
Illinois Power & Light Corp. v. Peterson, 322 Ill. 342, 153 N.E. 577 (1926). The Peterson court
believed this element was too speculative but did not mention Darst. One year later, the Supreme
Court specifically rejected the dicta in Darst and, citing Peterson, held the unsightliness of the
poles was not a proper element of damage. Illinois Power Co. v. Wieland, 324 Ill. 411, 155 N.E.
272 (1927). Citing Wieland, the Supreme Court reaffirmed its rejection of valuation opinions that
include unsightliness elements in Central Illinois Light Co. v. Nierstheimer, 26 Ill.2d 136, 185
N.E.2d 841 (1962).
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Fifteen years after Nierstheimer, the Supreme Court resurrected Darst, supra; referred to
Baumbach, supra; did not refer to Peterson, supra, Wieland, supra, or Nierstheimer; and held
that the trial court should have admitted evidence of unsightliness of the proposed power
structures and transmission lines. Central Illinois Public Service Co. v. Westervelt, 67 Ill.2d 207,
367 N.E.2d 661, 10 Ill.Dec. 208 (1977). In Westervelt, the power lines would be constructed next
to the property having a highest and best use of residential homesites. Justice Clark, writing for
the court, stated: “If the construction on the easement strip is aesthetically distasteful or unsightly
to potential buyers, the market value of the land is thereby reduced.” 367 N.E.2d at 663.
When the same issue of unsightliness of power structures and transmission lines confronted
the Second District five years later in Commonwealth Edison Co. v. Danekas, 104 Ill.App.3d 907,
433 N.E.2d 736, 741, 60 Ill.Dec. 694 (2d Dist. 1982), the appellate court called Westervelt, supra,
a “narrow exception” to the general rule of excluding evidence of unsightliness, refused to apply
the Supreme Court’s reasoning to property that was not residential, and held that the trial court
had properly excluded evidence of unsightliness of towers located next to farmland.
This restrictive reading of Westervelt was rejected by the Third District in Iowa-Illinois Gas
& Electric Co. v. Hoffman, 127 Ill.App.3d 496, 468 N.E.2d 977, 82 Ill.Dec. 323 (3d Dist. 1984).
Specifically disagreeing with Danekas, supra, the Third District held evidence of unsightliness,
as long as it was related to market value, could be admitted regardless of whether the remaining
property was residential, commercial, or agricultural.
5. [7.50] Access
The condemnor’s acquisition and improvement often cause changes in the access to the
remainder or the traffic flow past the remainder. Whether these changes give rise to compensable
elements of damage to the remainder has been frequently litigated.
Because private property rights do not include value attributable to government-related
activity, the government should not be required to compensate an owner for elements of value
that the government created and that the government can take away. United States v. Fuller, 409
U.S. 488, 35 L.Ed.2d 16, 93 S.Ct. 801 (1973). Thus, the government should not be required to
compensate an owner for any diminished property value caused by the exercise of the police
power. Since the police power includes such activities as traffic control, it then follows that an
individual has no property right in the flow of traffic past his or her property, and, therefore, a
modification of that flow is a valid exercise of the police power and does not result in
compensable damages.
For these reasons, the Supreme Court in Department of Public Works & Buildings v. Mabee,
22 Ill.2d 202, 174 N.E.2d 801 (1961), held that diminution in value of the remainder caused by
the installation of a barrier median in the center of the street, which created one-way traffic and
diverted the flow of traffic in front of the remainder, was a result of an exercise of the police
power and therefore was not a compensable damaging. It is important to realize that the reduction
in market value of the remainder in Mabee was very real — the property was a gasoline service
station. The key is that the reduction was caused by the police power, not the acquisition of the
part taken.
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When a partial taking changes access to the remainder, the consequent reduction in value of
the remainder may be compensable. In a case involving the acquisition of a corner of a gasoline
service station and the resulting relocation of driveways, the appellate court upheld introducing
evidence of the decrease in gasoline sold after the relocation of driveways as relevant to proving
difficulty of access to and consequent depreciation in value of the remainder. Department of
Transportation v. Shell Oil Co., 156 Ill.App.3d 304, 509 N.E.2d 596, 108 Ill.Dec. 900 (1st Dist.
1987).
On the other hand, by invoking the police power principle, the courts have held that an owner
is not entitled to damages for increased traffic flow past the property (Department of
Transportation of State of Illinois v. Reckamp, 9 Ill.App.3d 117, 291 N.E.2d 868 (5th Dist. 1973))
or for decreased traffic flow past the property caused by the improvement (Department of Public
Works & Buildings of State of Illinois ex rel. People v. Greenwell, 45 Ill.App.3d 159, 359 N.E.2d
780, 3 Ill.Dec. 921 (5th Dist. 1977)). See also Department of Public Works & Buildings of State
of Illinois ex rel. People v. Bills, 66 Ill.App.2d 170, 213 N.E.2d 110 (3d Dist. 1965). The
Greenwell court also refused compensation for alleged damage due to closing the road near the
remainder and diverting traffic to a new road north of the remainder. As long as the government’s
traffic restrictions are reasonable, depreciation caused by these restrictions is not compensable.
Ryan v. Rosenstone, 20 Ill.2d 79, 169 N.E.2d 360 (1960).
Cases discussing traffic flow gave rise to the principle that mere circuity of travel to and from
the remainder is not compensable. Streeter v. County of Winnebago, 85 Ill.App.3d 116, 404
N.E.2d 451, 39 Ill.Dec. 67 (2d Dist. 1980).
However, a private property owner has a right of access from his or her property to an
adjacent street. Section 4-210 of the Illinois Highway Code recognizes an owner’s right of ingress
and egress to and from abutting state highways, subject to reasonable restrictions. 605 ILCS 5/4210. This right of access is a valuable property right that cannot be taken without compensation.
Department of Public Works & Buildings v. Wolf, 414 Ill. 386, 111 N.E.2d 322 (1953).
There is then a question as to when the changes caused by the public improvement result in
mere circuity of travel and when they result in deprivation of the right of access. The Supreme
Court confronted this precise issue in Department of Public Works & Buildings v. Wilson & Co.,
62 Ill.2d 131, 340 N.E.2d 12, 17 (1975). In an important decision, the court held that while not
every limitation of access is compensable, when “access is taken or materially impaired,” the
condemnor must compensate the property owner. Id. In this case, the complete elimination of all
direct access by the substitution of a frontage road was held to be a material impairment of
access. As a result, the jury could consider whether the substituted frontage road equaled the
original access and whether the remaining property was damaged.
Wilson noted the trial court should make an initial determination of whether there has been an
actionable taking or impairment of access rights as a matter of law. Presumably, this would be
similar to a reasonable probability of rezoning hearing. Should the trial court determine there is
merely a reasonable limitation on access under the police power, the owner cannot present
evidence of damage due to the exercise of the police power. Should the trial court determine there
is an impairment or taking, the owner is entitled to seek damages before the jury based on the
impairment or taking of access. But even if the trial court determines that access rights have been
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taken or materially impaired, the jury still has the ultimate duty to decide whether the taking or
impairment caused any damage. Department of Transportation of State of Illinois ex rel. People
v. Gass, 165 Ill.App.3d 562, 519 N.E.2d 90, 116 Ill.Dec. 500 (5th Dist. 1988). A jury could
decide the substitute access is as good as the original and award no damages. Department of
Public Works & Buildings of State of Illinois ex rel. People v. Sun Oil Co., 66 Ill.App.3d 64, 383
N.E.2d 634, 22 Ill.Dec. 826 (5th Dist. 1978).
In Department of Transportation, State of Illinois v. Lowderman, LLC, 367 Ill.App.3d 502,
854 N.E.2d 261, 304 Ill.Dec. 919 (3d Dist. 2006), the appellate court drew a distinction between a
taking of all access rights to an adjacent road and a taking of only direct access rights to an
adjacent road. In the former case, the owner of the remainder simply has a license to use a
frontage road and may claim that he or she is left without any rights of access. In the latter case,
the owner has a right to use a frontage road and may not claim total loss of access. The owner,
however, can still claim damage based on circuity of travel.
If the trial court determines that access rights have been taken or materially impaired, the trial
court should refrain from giving a special, access jury instruction. In Illinois State Toll Highway
Authority v. Dicke, 208 Ill.App.3d 158, 566 N.E.2d 1003, 153 Ill.Dec. 153 (2d Dist. 1991), the
appellate court acknowledged the trial court’s non-I.P.I. instruction concerning loss of access was
an accurate statement of the law. But the appellate court held that giving the instruction was error
since it unduly highlighted one element of damage.
The decision of whether the improvement results in a reasonable restriction of access under
the police power or a material impairment and taking can be quite close. Department of
Transportation of State of Illinois ex rel. People v. Rasmussen, 108 Ill.App.3d 615, 439 N.E.2d
48, 64 Ill.Dec. 119 (2d Dist. 1982). If the owner had previously given up access rights, even if the
condemnor did not actually take access at the time it acquired the rights, the owner cannot claim
damage for the loss of the same rights in a subsequent condemnation case. Department of
Transportation v. Western National Bank of Cicero, 63 Ill.2d 179, 347 N.E.2d 161 (1976).
Conversely, the condemnor cannot attempt to acquire different access rights than it originally
took without payment of additional compensation. Department of Public Works & Buildings of
State of Illinois ex rel. People v. Mokres, 28 Ill.App.3d 422, 328 N.E.2d 357 (4th Dist. 1974).
Finally, counsel for both the condemnor and the landowner should ascertain whether the
circuit court has subject-matter jurisdiction to entertain a claim against the state for access
impairment. In Department of Transportation ex rel. People v. Interstate Brands Corp., 251
Ill.App.3d 785, 623 N.E.2d 771, 191 Ill.Dec. 181 (4th Dist. 1993), an unusual case, the appellate
court upheld dismissal of a counterclaim based on alleged damages due to the moving of a
driveway. The condemnation case involved acquisition of a temporary easement, but apparently
the Illinois Department of Transportation’s relocation of the access driveway was unrelated to the
temporary easement. Holding that the counterclaim did not seek damages resulting from the
temporary easement, the appellate court classified the access damage claim as a direct damage
claim against the state. As a result, the claim could be pursued only in the Court of Claims. See
705 ILCS 505/8.
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G. [7.51] Improper Elements of Damage
Although the Illinois courts have adopted the market value standard in assessing damage to
the remainder, for public policy reasons certain elements that may adversely affect market value
are nevertheless held to be non-compensable. These reasons were originally noted in Rigney v.
City of Chicago, 102 Ill. 64, 80 (1881), when the Supreme Court observed that certain injuries
“are necessarily incident to the ownership of property” and labeled them “damnum absque
injuria.” These injuries are suffered in common by all people in the neighborhood, do not
constitute “a special damage with respect to . . . property in excess of that sustained by the public
generally,” and are therefore non-compensable. 102 Ill. at 81.
Rigney used, as an example, depreciation caused by building a jail in the neighborhood. Other
courts have refused to allow damages attributed to constructing a smallpox hospital (Frazer v.
City of Chicago, 186 Ill. 480, 57 N.E. 1055 (1900)), building a cemetery (City of Winchester v.
Ring, 312 Ill. 544, 144 N.E. 333 (1924)), or constructing a school playground (Schuler v. Wilson,
322 Ill. 503, 153 N.E. 737 (1926)).
As discussed in §7.50 above, reduction in market value due to the exercise of the police
power is not compensated for public policy reasons. One way to analyze the police power
exception is to remember Blackstone’s observation that the eminent domain power substitutes the
sovereign itself in place of the owner, thus granting the sovereign the owner’s rights in the res and
requiring the sovereign to pay for those rights. 1 William Blackstone, COMMENTARIES ON
THE LAWS OF ENGLAND, p. 135 (1979). Therefore, if the owner had rights that are taken, the
sovereign must pay. However, if what is done is not subject to private ownership rights, as in the
case of actions taken under the police power, then the sovereign need not pay because it is not
succeeding to anything the owner had in the first place. Among the actions placed in the police
power category are
1. median strips (see Department of Public Works & Buildings v. Mabee, 22 Ill.2d 202, 174
N.E.2d 801 (1961));
2. traffic diversion (see City of Chicago v. Spoor, 190 Ill. 340, 60 N.E. 540 (1901));
3. circuitous travel (see Department of Public Works & Buildings of State of Illinois ex rel.
People v. Greenwell, 45 Ill.App.3d 159, 359 N.E.2d 780, 3 Ill.Dec. 921 (5th Dist. 1977));
4. driveway regulation (see City of Elmhurst v. Buettgen, 394 Ill. 248, 68 N.E.2d 278
(1946)); and
5. increase or decrease in traffic flow past property (see Village of Round Lake v. Amann,
311 Ill.App.3d 705, 725 N.E.2d 35, 244 Ill.Dec. 240 (2d Dist. 2000)).
Unfortunately, the extent of the police power is not well defined. In deciding whether the
application of New York City’s Landmarks Preservation Law to the Grand Central Terminal
constituted a taking or a police power restriction, the United States Supreme Court acknowledged
that “this Court, quite simply, has been unable to develop any ‘set formula’ for determining when
‘justice and fairness’ require that economic injuries caused by public action be compensated by
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the government, rather than remain disproportionately concentrated on a few persons.” Penn
Central Transportation Co. v. City of New York, 438 U.S. 104, 57 L.Ed.2d 631, 98 S.Ct. 2646,
2659 (1978).
Public policy additionally precludes consideration of damage dependent on an illegal use of
the property. Department of Public Works & Buildings v. Hubbard, 363 Ill. 99, 1 N.E.2d 383
(1936). Consistent with this policy is §10-5-50 of the Eminent Domain Act, which expressly
permits the introduction of evidence of “any unsafe, unsanitary, substandard, or other illegal
condition, use, or occupancy of the property.” 735 ILCS 30/10-5-50. The appellate court
restricted the scope of this statute to an illegal condition on the part taken or remainder in Illinois
State Toll Highway Authority v. West Suburban Bank, 208 Ill.App.3d 923, 567 N.E.2d 730, 153
Ill.Dec. 772 (2d Dist. 1991).
Certain other elements may not be used as the basis for a damage claim because they are not
relevant to market value. Loss of goodwill (City of Quincy v. V.E. Best Plumbing & Heating
Supply Co., 17 Ill.2d 570, 162 N.E.2d 373 (1959)) and loss of business during construction
(Department of Public Works & Buildings v. Maddox, 21 Ill.2d 489, 173 N.E.2d 448 (1961)) fall
into this category. Similarly, in City of Chicago v. Provus, 415 Ill. 618, 114 N.E.2d 793 (1953),
the Supreme Court refused to recognize a damage claim for loss of an appraisal fee with a
proposed loan to develop the property, for loss of the use of an architect’s plans for developing
the site, and for mortgage service charges. The court reasoned the market value standard does not
take into consideration as a measure of damages any peculiar value to the owner because of a
contemplated use. For the same reason, loss or frustration of business opportunity is noncompensable. United States ex rel. Tennessee Valley Authority v. Powelson, 319 U.S. 266, 87
L.Ed. 1390, 63 S.Ct. 1047 (1943).
Moving expenses are also non-compensable in a condemnation case. Housing Authority of
City of East St. Louis v. Kosydor, 17 Ill.2d 602, 162 N.E.2d 357 (1959). Note that the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970, in the case of certain
federally funded projects, the relocation costs provision in 735 ILCS 30/10-5-62, and 50 ILCS
20/14.2, in the case of acquisitions by a public building commission, afford outside payment of
moving expenses.
The final category of improper elements includes claims that are too speculative to assist the
jury in deciding whether the remainder has been damaged. In Illinois Power & Light Corp. v.
Peterson, 322 Ill. 342, 153 N.E. 577, 579 (1926), the Supreme Court reversed the trial court for
admitting evidence of possible trespasses by the condemnor’s employees and the like by stating:
The other elements of damage detailed by the witnesses involve no physical
disturbance of a right of property, but are so remote, speculative, and uncertain as
to afford no basis for the allowance of damages. If damage should result from the
opening of a fence to reach the tower site or from some trespass by appellant’s
employees, appellee will have his remedy. Damage from such sources may never
occur and cannot be anticipated in a condemnation proceeding. Since damages are
recoverable only where there is a physical disturbance of a right of property, the
fear of a remote and contingent injury which may possibly occur, but the happening
of which is altogether speculative and uncertain, is not regarded by the law as an
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element entering into the damages which may be allowed to the owner. The damage
must be direct and proximate and not such as is merely possible or may be
conceived by the imagination.
Other examples of speculative claims are
1. fear of injury from high-tension wires (see East St. Louis Light & Power Co. v. Cohen,
333 Ill. 218, 164 N.E. 182 (1928)); and
2. possible danger to persons crossing the proposed road (see Department of Public Works
& Buildings v. Griffin, 305 Ill. 585, 137 N.E. 523 (1922); Department of Public Works &
Buildings v. Caldwell, 301 Ill. 242, 133 N.E. 642 (1921)).
Finally, to be compensable, damages must be the direct and proximate result of the taking.
Department of Transportation of State of Illinois ex rel. People v. Lake Ka-Ho, Inc., 98
Ill.App.3d 1052, 425 N.E.2d 50, 54 Ill.Dec. 538 (4th Dist. 1981); Department of Public Works &
Buildings of State of Illinois v. Horejs, 78 Ill.App.2d 284, 223 N.E.2d 207 (1st Dist. 1966). The
appellate court rejected a claim for damages based on the placement of fill on adjoining property
and consequent drainage problems on the remainder of the subject property. Illinois State Toll
Highway Authority v. Dicke, 208 Ill.App.3d 158, 566 N.E.2d 1003, 153 Ill.Dec. 153 (2d Dist.
1991). While the condemnor’s contractor had placed fill on the adjoining property, the
condemnor had not been aware of it, the placement of fill was not part of the tollway’s design,
and the taking of a portion of the subject property was not directly linked to the placement of fill.
The appellate court held that the alleged damage was not recognizable in the eminent domain
proceeding. It directed the owner to the Court of Claims for any possible remedy. The owner was
also relegated to the Court of Claims to recover damages not arising out of the taking in
Department of Transportation ex rel. People v. Interstate Brands Corp., 251 Ill.App.3d 785, 623
N.E.2d 771, 191 Ill.Dec. 181 (4th Dist. 1993).
H. [7.52] Benefits
Since the extent of damage to the remaining property is determined by the depreciation in its
market value, if the public improvement on the part taken will benefit and enhance the market
value of the remainder, this benefit may be considered. The common-law rule in Illinois is that
benefits may be used to offset damages but may not be used to offset compensation due for the
part taken. Metropolitan West Side El. Ry. v. Stickney, 150 Ill. 362, 37 N.E. 1098 (1894). Because
benefits can be used only to offset damage to the remainder, the “before-and-after” formula
referred to in City of Springfield, Illinois v. West Koke Mill Development Corp., 312 Ill.App.3d
900, 728 N.E.2d 781, 785, 245 Ill.Dec. 699 (4th Dist. 2000), must be viewed with caution.
Stickney, supra, also acknowledged the distinction between general benefits, which are those
benefits that cannot be used to offset damages, and special benefits, which are those benefits that
can be used to offset damages. The court defined “general benefits” as “those general, intangible
benefits which are suposed to flow to the general public from a public improvement” (37 N.E. at
1100), and then defined “special benefits”:
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Special benefits are such benefits flowing from the proposed public work as
appreciably enhance the value of the particular tract of land alleged to be
benefited. . . . As already said, the fact that other property in the vicinity is likewise
increased in value from the same cause — that is, also specially benefited by the
improvement — furnishes no excuse for excluding the consideration of special
benefits to the particular property, in determining whether it has been damaged or
not, and, if it has, the extent of the depreciation in value. On the one hand, the
damages must be real and substantial; on the other, the benefits must be such as
affect the market value or use of the land, and such as are capable of measurement
and computation. Hence, all imaginary and merely speculative damages or benefits
are excluded from consideration. [Citations omitted.] 37 N.E. at 1103 – 1104.
Put in other terms, general benefits arise from the fulfillment of the public object that justified
the taking, while special benefits arise from the peculiar relation of the land in question to the
public improvement. United States v. 2,477.79 Acres of Land, More or Less, Situate in Bell
County, Texas, 259 F.2d 23 (5th Cir. 1958).
Section 10-5-55 of the Eminent Domain Act expressly recognizes special benefits by
providing:
In assessing damages or compensation for any taking or property acquisition under
this Act, due consideration shall be given to any special benefit that will result to the
property owner from any public improvement to be erected on the property. 735
ILCS 30/10-5-55.
Section 10-5-50 gives a somewhat broader definition of “special benefits,” stating, in relevant
part:
Evidence is admissible as to: (1) any benefit to the landowner that will result from
the public improvement for which the eminent domain proceedings were instituted.
735 ILCS 30/10-5-50.
Special benefits, like any alleged element of damage, must affect the market value of the
remainder. Objections based on speculation, conjecture, and remoteness are as applicable to
benefit claims as to damage claims. However, the fact that the value of other property in the area
will also be increased by the proposed improvement furnishes no basis for objecting to evidence
of the benefit. Department of Public Works & Buildings v. Griffin, 305 Ill. 585, 137 N.E. 523
(1922). Special benefits have been recognized in the following situations:
1. increased traffic, increased advertising value, and increased accessibility in Cuneo v. City
of Chicago, 400 Ill. 545, 81 N.E.2d 451 (1948);
2. a widened street, replaced curbs and sidewalks, and increased accessibility in Department
of Public Works & Buildings of State of Illinois ex rel. People v. Todaro, 90 Ill.App.2d
245, 233 N.E.2d 61 (5th Dist. 1967);
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3. increased exposure to public and improved access in Department of Public Works &
Buildings of State of Illinois v. Klehm, 6 Ill.App.3d 752, 286 N.E.2d 558 (1st Dist. 1972);
and
4. creation of a reasonable probability of rezoning to commercial use after the improvement
is completed in Department of Public Works & Buildings of State of Illinois v. Exchange
National Bank, 31 Ill.App.3d 88, 334 N.E.2d 810 (2d Dist. 1975).
Despite the long line of benefits cases, the courts still struggle to distinguish general and
special benefits. Three decisions from the Second District are evidence of this: Illinois State Toll
Highway Authority v. Heritage Standard Bank & Trust Co., 196 Ill.App.3d 5, 552 N.E.2d 1151,
142 Ill.Dec. 410 (2d Dist. 1990); Illinois State Toll Highway Authority v. Itasca Bank & Trust
Co., 216 Ill.App.3d 926, 576 N.E.2d 1221, 160 Ill.Dec. 267 (2d Dist. 1991); Illinois State Toll
Highway Authority v. American National Bank & Trust Company of Chicago, 236 Ill.App.3d
696, 606 N.E.2d 147, 179 Ill.Dec. 315 (2d Dist. 1992). In the appeal from the last of these, the
Supreme Court reversed that part of the appellate court’s ruling on special benefits in a four-three
decision. Illinois State Toll Highway Authority v. American National Bank & Trust Company of
Chicago, 162 Ill.2d 181, 642 N.E.2d 1249, 1256, 205 Ill.Dec. 132 (1994).
All these cases involved acquisitions arising out of construction of the North-South Tollway
in DuPage County. In Heritage Standard, supra, the appellate court classified the benefits as
special and therefore capable of offsetting damages, while in Itasca Bank & Trust, supra, and
American National Bank, the appellate court classified the benefits as general and not capable of
offsetting damages. As stated, the Supreme Court reversed the appellate court in American
National Bank by reclassifying the benefits as special.
The Heritage Standard acquisition consisted of 11.4 acres from a 40.5-acre parcel. The
Illinois State Toll Highway Authority’s land planner testified that, as a result of the remainder
being located adjacent to the North-South Tollway and close to the 75th Street interchange, the
remainder’s highest and best use changed from residential to office. One of the ISTHA’s
appraisers then testified that the proximity to the 75th Street interchange and the increased
visibility and advertising exposure of the remainder constituted benefits the value of which offset
any damage caused by the acquisition. Judge Dunn, writing for the appellate court, with the
concurrence of Judges Reinhard and McLaren, held these benefits were special despite the fact
that the interchange was not actually located on the property taken from the owner.
The Itasca Bank & Trust acquisition consisted of a small portion of a nursery located at the
northwest corner of Army Trail Road and Route 53 plus the access rights from the remaining
property to Army Trail Road. This property was located 150 feet of the northbound entrance ramp
of the Army Trail Road interchange to the North-South Tollway. ISTHA acquired the property in
accordance with an agreement with the Illinois Department of Transportation providing that
intersections near to and affected by the new toll road would be upgraded. ISTHA acquired the
property for these off-alignment improvements but then turned title to the acquired property over
to IDOT.
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Judge Nickels, writing for the appellate court, held that testimony of benefits to the remaining
property arising out of its proximity to the new toll road constituted general benefits, stating:
Section 7-120 of the Code requires that special benefits be considered from “any
public improvement to be erected on such property.” (Ill.Rev.Stat.1989, ch. 110,
par. 7-120.) Although plaintiff contends that, under Heritage Standard Bank, the
location of the property is unimportant as long as it is used or needed for part of the
public improvement project, we do not read Heritage Standard Bank so broadly.
This court reasoned in Heritage Standard Bank that the public improvement erected
on the property was the tollway, and the ramps, as part of the tollway project while
not on defendants’ property, were part of the public improvement erected on the
property taken from the defendants. Unlike Heritage Standard Bank, here the public
improvement, the tollway, is not being erected on any part of the defendants’
property. The ramp is part of the tollway project, and the property was taken in
connection with the tollway project; however, the actual public improvement is not
located on any part of defendants’ property. This fact distinguishes this case from
Heritage Standard Bank. Based upon this reasoning and section 7-120 of the Code,
the trial court erred as a matter of law in admitting evidence of special benefits from
the tollway. 576 N.E.2d at 1225.
Thus, off-alignment improvements, even if necessary for the project, do not qualify for special
benefits according to the Itasca Bank & Trust court.
As an interesting footnote, Judge Dunn, who wrote the Heritage Standard opinion, concurred
in Itasca Bank & Trust. However, Judge McLaren, who had concurred in Judge Dunn’s Heritage
Standard opinion, filed a dissent in Itasca Bank & Trust, asserting that the benefits were special,
not general. The Second District followed the approach set forth in Itasca Bank & Trust when it
issued its opinion in American National Bank. This case involved a partial acquisition of property
to construct compensatory wetlands to replace preexisting wetlands destroyed by the North-South
Tollway project and to provide access to an existing utility easement. The property was “situated
west of and adjoining the main line of the North-South Toll Road where it intersects with
Roosevelt Road.” 606 N.E.2d at 148. The trial court excluded any evidence of benefits to the
remainder property arising out of the construction of the North-South Tollway.
Upholding the trial court’s exclusion, the appellate court narrowly read Heritage Standard
and held that because no part of the public improvement (North-South Tollway) would be located
in the part taken, “the relationship between the North-South tollway and the defendants’
remainder is too tenuous to consider the special benefits of the tollway to it.” 606 N.E.2d at 150.
When the Supreme Court considered the appeal of the appellate court’s decision in American
National Bank, supra, the Supreme Court focused its analysis on the market value standard rather
than on whether the roadway was located on the part taken. The Supreme Court noted that
damages are to be awarded only when, in fact, the market value of the remainder has been
reduced. Under this analysis, if the benefits are not conjectural or speculative and do affect the
market value of the remainder, they should be admitted. The Supreme Court also criticized the
appellate court’s restrictive definition of the scope of the public improvement, noting that the
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compensatory wetlands were as much a part of the project as the roadway. The standard set by the
court is whether the part taken is for “necessary parts of the project.” 642 N.E.2d at 1256. The
Supreme Court held:
Under the clear and unambiguous language of this statute, evidence of benefits from
the improvement may be adduced regardless of where the improvement was
erected. Id.
The minority opinion criticizes the majority’s construction of the special-benefits statutes and
alleged overruling of the trial court’s factual determination that the alleged benefits were too
remote and speculative to be considered. The minority opinion also would require that the
condemnor be able to establish special benefits with evidence “free from doubt” before it could
be considered. 642 N.E.2d at 1260.
To determine whether the remainder has benefited, the parties must value the entire property.
An owner may not value only one portion of the remainder to avoid considering the benefit the
improvement may have on the other portion of the remainder. Department of Public Works &
Buildings v. Barton, 371 Ill. 11, 19 N.E.2d 935 (1939).
The method of proving benefits often determines whether they will be considered special or
general benefits. A good example of how the same claim of benefit — increased traffic after the
improvement — may be admitted in evidence if proven correctly and may be excluded if not
proven correctly can be seen in the contrasting results reached in Illinois State Toll Highway
Authority v. Humphrey Estate, 62 Ill.App.3d 316, 379 N.E.2d 626, 19 Ill.Dec. 754 (2d Dist.
1978), and Department of Public Works & Buildings v. Divit, 25 Ill.2d 93, 182 N.E.2d 749
(1962).
Another example of a special benefit is the use of “substitute condemnation” as exemplified
in City of Chicago v. Midland Smelting Co., 385 Ill.App.3d 945, 896 N.E.2d 364, 324 Ill.Dec.
578 (1st Dist. 2008). Here, the appellate court issued an opinion upholding the condemnation of
property for conveying the condemned property to the owner of other property. The other
property consisted of a commercial building and a parking lot located across the street but under
the same ownership as the commercial building. When the government condemned the parking
lot, the commercial building lot was left without parking. So, to mitigate the damage to the
commercial building lot, the government acquired part of an adjacent parcel to provide substitute
or replacement parking. This substitute condemnation is effectively a benefit to the owner of the
commercial lot. As part of the compensation being paid to the commercial lot owner, it can be
used to offset any damage claims.
V.
VALUATION IN EASEMENT ACQUISITIONS
A. [7.53] Permanent Easement
The acquisition of a permanent easement presents two valuation questions:
1. Does the imposition of the easement damage the property within the easement area and,
if so, how much?
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2. Does the imposition of the easement damage the remaining property outside the easement
area and, if so, how much?
Central Illinois Public Service Co. v. Lee, 409 Ill. 19, 98 N.E.2d 746 (1951); Village of Round
Lake v. Amann, 311 Ill.App.3d 705, 725 N.E.2d 35, 244 Ill.Dec. 240 (2d Dist. 2000). These
questions arise whether the easement is an aboveground easement for power lines (Illinois Power
& Light Corp. v. Barnett, 338 Ill. 499, 170 N.E. 717 (1930)) or an underground easement
(Peoples Gas Light & Coke Co. v. Buckles, 24 Ill.2d 520, 182 N.E.2d 169 (1962)).
Since an easement acquisition involves the determination of the depreciation of the property
within and without the easement area, the valuation rules in partial acquisitions apply to the
easement cases. For example, each party is entitled to show that the area within the easement strip
has a different highest and best use than the existing use and to base its valuation on such use.
City of Chicago v. Sexton, 408 Ill. 351, 97 N.E.2d 287 (1951).
I.P.I. — Civil Nos. 300.54 – 300.58 contain a very helpful summary of the issues created by a
permanent easement acquisition. Because most appraisers adopt a taking approach to the
valuation of an easement instead of the damage approach adopted by the Illinois courts, it is
important to make sure that the valuation witness testifies in accordance with the proposed jury
instructions. If the witness does not, at best the jury will have difficulty matching the appraiser’s
opinions to the jury instructions, and at worst the court may strike the testimony.
For an interesting approach to valuing permanent easements for underground pipelines, see
Judge Easterbrook’s discussion of multiple regression analysis in Guardian Pipeline, L.L.C. v.
950.80 Acres of Land, 525 F.3d 554 (7th Cir. 2008).
B. [7.54] Temporary Easement
Although temporary easement acquisitions share many of the same characteristics as
permanent easement acquisitions, the temporary nature of the easement creates some unique
problems. For example, in Housing Authority of City of East St. Louis v. Kosydor, 17 Ill.2d 602,
162 N.E.2d 357, 359 (1959), the Supreme Court indicated that the compensation for a temporary
easement could include moving expenses. Along the same lines, §10-5-20 of the Eminent
Domain Act provides:
Construction easement. If a taking is for a construction easement only, any
structure that has been removed or taken shall be repaired, reestablished or
relocated, at the option of the landowner, when the cost of the action does not exceed
the just compensation otherwise payable to the landowner. 735 ILCS 30/10-5-20.
The request for a temporary easement, like the request for a permanent easement, must
specify exactly what the condemnor intends to do with the property. Should the condemnor
request the use of property for a temporary period and then actually use the property for a longer
period, the condemnor is obligated to pay for the additional time needed to complete the project.
Department of Transportation of State of Illinois ex rel. People v. Gallay, 20 Ill.App.3d 32, 312
N.E.2d 759 (5th Dist. 1974). Should the parties fail to specify whether the easement is temporary
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ILLINOIS EMINENT DOMAIN PRACTICE
or permanent, subsequent litigation may ensue over the extent of the government’s property
interest. People ex rel. Peters v. O’Connor, 311 Ill.App.3d 753, 725 N.E.2d 391, 244 Ill.Dec. 280
(3d Dist. 2000).
Temporary easement or temporary taking cases rarely arise in the appellate courts, probably
because of the relatively nominal amount of compensation involved. As a result, there is little
direction from the courts for valuing a temporary easement. In Department of Transportation v.
First Bank of Schaumburg, 260 Ill.App.3d 490, 631 N.E.2d 1145, 197 Ill.Dec. 686 (1st Dist.
1992), the appellate court applied the same principles for valuing a permanent easement to
valuing a temporary easement. The appellate court disapproved using a rental approach; instead,
it cited a permanent easement case to support a before-and-after approach for appraising a
temporary easement. However, after the appellate court’s decision in First Bank of Schaumburg,
the Supreme Court issued its opinion in Illinois State Toll Highway Authority v. American
National Bank & Trust Company of Chicago, 162 Ill.2d 181, 642 N.E.2d 1249, 205 Ill.Dec. 132
(1994). In dicta commenting on a temporary easement, the Supreme Court stated:
The rate of return on real estate investments is a meaningful measure in setting the
value of the easement, for it helps establish how much Carriage Hills could have
earned on the property during the easement’s term. 642 N.E.2d at 1257.
This language more closely describes the reality of a temporary easement which, unlike the
permanent easement, is imposed for a limited term and in many respects resembles an imposed
leasehold situation. In federal acquisitions, temporary easements are valued by using the rental
value of the land for the term of the taking. See UNIFORM APPRAISAL STANDARDS FOR
FEDERAL LAND ACQUISITIONS §D-10 (Appraisal Institute, 2000), www.justice.gov/
sites/default/files/enrd/legacy/2015/04/13/Uniform-Appraisal-Standards.pdf (case sensitive).
In 1987, the United States Supreme Court issued its opinion in First English Evangelical
Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304, 96 L.Ed.2d
250, 107 S.Ct. 2378 (1987). Holding that temporary takings are no different from permanent
takings, the Supreme Court ruled that a regulation depriving an owner of all use of the property
entitles the owner to compensation for the period between the imposition of the regulation and the
date a court declares it to be a taking. This opens the door for recovery of damages for this period
in contrast to the prior rule that limited the owner’s remedy to invalidation of the regulation.
Making a money remedy available may lead to substantial litigation over the valuation of
damages arising from such temporary takings in the future.
Temporary takings may also occur when a governmental body floods property or otherwise
renders it uninhabitable by the owners for a period of time. While the temporary taking may be
compensable, compensation may be measured differently than in a normal temporary easement
situation. Pineschi v. Rock River Water Reclamation District, 346 Ill.App.3d 719, 805 N.E.2d
1241, 282 Ill.Dec. 224 (2d Dist. 2004). See also Arkansas Game & Fish Commission v. United
States, ___ U.S. ___, 184 L.Ed.2d 417, 133 S.Ct. 511 (2012).
In Hampton v. Metropolitan Water Reclamation District of Greater Chicago, 2106 IL
119861, the Supreme Court concluded temporary flooding could constitute a temporary taking,
but there is no blanket rule. The factors to be considered are (1) the duration of flooding, (2) the
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intended or foreseeable result of the government action, (3) the character of the property, and (4)
the owner’s reasonable economic expectations regarding use of the property. The court adopted
the same approach to takings claims based on intermittent flooding as was done by the United
States Supreme Court in Arkansas Game & Fish, supra.
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8
Trial Procedure and Technique
WILLIAM L. BROOM III
Barrett, Twomey, Broom, Hughes & Hoke, LLP
Carbondale
The contribution of George C. Hupp, Sr., to previous editions of this chapter is
gratefully acknowledged.
®
©COPYRIGHT 2016 BY IICLE .
8—1
ILLINOIS EMINENT DOMAIN PRACTICE
I. Trial Advocacy in Eminent Domain Cases
A. [8.1] Trial Atmosphere
B. [8.2] Condemnation Lawyer
II. General Procedural Rules
A. [8.3] General Constitutional and Statutory Provisions
B. [8.4] Severance and Consolidation
C. [8.5] Trial Setting
III. Jury
A.
B.
C.
D.
[8.6]
[8.7]
[8.8]
[8.9]
Right to Jury Trial
Number of Jurors; Peremptory Challenges
Voir Dire
Oath of Jurors
IV. [8.10] Opening Statement — General Theory
V. Jury View of Property
A.
B.
C.
D.
[8.11]
[8.12]
[8.13]
[8.14]
When Required
View as Evidence
Time for Request and Time of View
Conduct of the View
VI. [8.15] Collateral Evidence
VII. [8.16] Comparable-Sales Evidence — General Rules
VIII. [8.17] Voluntary Transactions for Cash
A. [8.18] Voluntary Sale
B. [8.19] Sale for Cash
C. [8.20] Assemblage Sales
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IX. [8.21] Similarity
A.
B.
C.
D.
E.
F.
G.
H.
[8.22]
[8.23]
[8.24]
[8.25]
[8.26]
[8.27]
[8.28]
[8.29]
Proximity
Size
Utilities
Zoning and Location in Municipality
Improved and Unimproved Properties
Subdivided Land as Opposed to Acreage
Date of Sale
Highest and Best Use
X. Purchase Price of the Subject Property
A. [8.30] In General
B. [8.31] Offers
XI. [8.32] Wilson v. Clark and Its Effect on Admission of Comparable-Sales Evidence
XII. [8.33] Conclusion Regarding Sales Evidence
XIII. Demonstrative Evidence — Maps, Plats, and Photographs
A. [8.34] Depicting Existing Conditions
B. [8.35] Depicting Proposed Highest and Best Use
XIV. Presenting Valuation Witnesses
A.
B.
C.
D.
[8.36]
[8.37]
[8.38]
[8.39]
For a Total Taking
The Owner as a Valuation Witness
Sample Questions for Valuation Witness
Partial Taking with Damages to the Remainder
XV. [8.40] Right To Open and Close
XVI. Jury Instructions
A.
B.
C.
D.
[8.41]
[8.42]
[8.43]
[8.44]
In General
Cautionary Instructions
Definitional Instructions
Rezoning
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ILLINOIS EMINENT DOMAIN PRACTICE
E. [8.45] Stipulations and Agreements
F. [8.46] Expert Testimony
XVII. [8.47] Closing Argument
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§8.3
I. TRIAL ADVOCACY IN EMINENT DOMAIN CASES
A. [8.1] Trial Atmosphere
The trial of eminent domain cases often presents an air of bitterness strangely different from
that present in the trial of other civil cases. Many times a governmental body, as a plaintiff, seeks
to acquire the defendant’s property in a situation in which the defendant never had any desire or
intention of selling. Even though the defendant may be adequately compensated for the taking
and any damage sustained by reason of the taking, the defendant nevertheless must pay his or her
own costs, attorneys’ fees, and expenses and also suffer the loss of the time and inconvenience
involved in preparing for and presenting the defense.
The trial lawyer who undertakes the representation of either side in such a case, however,
must guard carefully against this air of bitterness and not allow it to influence his or her handling
or judgment in the matter.
B. [8.2] Condemnation Lawyer
Only rarely do most trial lawyers become involved in an eminent domain case. There are few
lawyers or firms that can afford to specialize in this type of practice. The professional trial lawyer
who undertakes the trial of an eminent domain case must become familiar with the law of
eminent domain, and, having done so, he or she then must approach the case like any other,
employing the same ethics and standard of preparation.
II. GENERAL PROCEDURAL RULES
A. [8.3] General Constitutional and Statutory Provisions
The Fifth Amendment to the United States Constitution provides that “private property [shall
not] be taken for public use, without just compensation.” Similarly, Article I, §15, of the Illinois
Constitution provides that
[p]rivate property shall not be taken or damaged for public use without just
compensation as provided by law. Such compensation shall be determined by a jury
as provided by law.
The eminent domain statutes of Illinois are found in the Eminent Domain Act, 735 ILCS 30/11-1, et seq. They constitute the basic procedural law in eminent domain cases. The Code of Civil
Procedure, 735 ILCS 5/1-101, et seq., also applies to condemnation cases, as do the Supreme
Court Rules. S.Ct. Rule 1. When both the Eminent Domain Act and the Code of Civil Procedure
are silent, the practice in eminent domain cases is governed by common law. Department of
Public Works & Buildings v. Huff, 15 Ill.2d 517, 155 N.E.2d 563, 565 (1959). Counsel should
also consult the local rules of the circuit in which the case is pending.
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B. [8.4] Severance and Consolidation
735 ILCS 30/10-5-30 provides that “[a]ny number of separate parcels of property, situated in
the same county, may be included in one complaint, and the compensation for each shall be
assessed separately by the same or different juries, as the court may direct.” When more than one
parcel of property is included in one complaint, it is a matter of sound discretion of the trial court
as to whether any defendant or group of defendants will be granted a separate trial. See City of
Chicago v. Chicago Title & Trust Co., 331 Ill. 322, 163 N.E. 17 (1928); Martin v. Chicago & M.
Electric Ry., 220 Ill. 97, 77 N.E. 86, 88 (1906); Chicago & N.W. Ry. v. Chicago Mechanics’
Institute, 239 Ill. 197, 87 N.E. 933, 940 (1909); Department of Public Works & Buildings of State
of Illinois ex rel. People v. Seeber, 93 Ill.App.2d 271, 235 N.E.2d 269 (4th Dist. 1968).
C. [8.5] Trial Setting
The Illinois Supreme Court has characterized the eminent domain statutes as contemplating a
speedy trial without delays. See Moll v. Sanitary Dist. of Chicago, 228 Ill. 633, 81 N.E. 1147,
1148 (1907); Sanitary Dist. of Chicago v. Chapin, 226 Ill. 499, 80 N.E. 1017, 1018 (1907). This
fact indicates that eminent domain cases should have a preference over the setting of other civil
trials.
As a general rule, many of the witnesses who are to testify in a particular eminent domain
proceeding also have commitments in other similar cases. Consequently, every effort should be
made by counsel and the courts to schedule the trial of an eminent domain proceeding for a date
certain in order that those witnesses may avoid conflicts. This procedure will result in a more
expeditious trial and the avoidance of unnecessary delays and recesses.
III. JURY
A. [8.6] Right to Jury Trial
Article I, §15, of the Illinois Constitution provides:
Private property shall not be taken or damaged for public use without just
compensation as provided by law. Such compensation shall be determined by a jury
as provided by law.
735 ILCS 30/10-5-5(a) provides:
Private property shall not be taken or damaged for public use without just
compensation and, in all cases in which compensation is not made by the
condemning authority, compensation shall be ascertained by a jury, as provided in
this Act. When compensation is so made by the condemning authority, any party,
upon application, may have a trial by jury to ascertain the just compensation to be
paid. A demand on the part of the condemning authority for a trial by jury shall be
filed with the complaint for condemnation of the condemning authority. When the
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condemning authority is plaintiff, a defendant desirous of a trial by jury must file a
demand for a trial by jury on or before the return date of the summons served on
him or her or on or before the date fixed in the publication in case of defendants
served by publication. If no party in the condemnation action demands a trial by
jury, as provided for by this Section, then the trial shall be before the court without
a jury.
A question must be raised as to the constitutionality of that section, inasmuch as the
Constitution provides that compensation in eminent domain cases “shall” be determined by a jury
as provided by law, and inasmuch as the legislature under the present statute has taken the
position that, in those cases in which compensation is made by the condemning authority (e.g.,
the state, a county, or a municipality), a trial by jury must be affirmatively requested. While it
would seem axiomatic that any party to litigation may waive the right of a jury trial (Chicago, M.
& St. P. Ry. v. Hock, 118 Ill. 587, 9 N.E. 205, 207 (1886)), serious doubt must attend any attempt
by the legislature to regulate or procedurally deny the right. There are a number of cases that deal
with the right of the legislature to regulate the timeliness of requests for trials by jury and the
waiver thereof (Stephens v. Kasten, 383 Ill. 127, 48 N.E.2d 508, 510 (1943); First Bank of Oak
Park v. Carswell, 111 Ill.App.3d 71, 443 N.E.2d 755, 757, 66 Ill.Dec. 829 (1st Dist. 1982);
Westerfield v. Redmer, 310 Ill.App. 246, 33 N.E.2d 744, 746 (1st Dist. 1941); Chmielewski v.
Marich, 350 Ill.App. 379, 113 N.E.2d 69, 71 (1st Dist. 1953)), but none of these cases deal with a
situation in which a trial by jury is mandated by the Constitution. In Waukegan Port District v.
Booras, 55 Ill.App.3d 790, 371 N.E.2d 321, 326, 13 Ill.Dec. 604 (2d Dist. 1977), the court (in
construing then-applicable Ill.Rev.Stat. (1975), c. 47, ¶1, which was basically the same as the
statute dealt with here) mentioned that a jury trial will be provided only if it is demanded by a
party. The court noted that the demand for a jury by one of the defendants came nearly a month
after judgment had been rendered and thus was untimely. It does not appear, however, that the
constitutionality issue was raised in the case.
Therefore, the safe procedure would be for attorneys representing petitioners to demand a
jury at the time of the filing of the complaint and to follow by having a jury fix the award of
compensation and damages in all cases in which all of the defendants do not specifically waive
the right and, particularly, in all cases in which any defendant has been defaulted.
B. [8.7] Number of Jurors; Peremptory Challenges
735 ILCS 30/10-5-35 provides that the “plaintiff, and every party interested in the
ascertaining of compensation, shall have the same right of challenge of jurors as in other civil
cases in the circuit courts.”
735 ILCS 5/2-1105(b) was amended effective June 1, 2015, to provide that all jury cases shall
be tried by a jury of six. The amendment changing the number of jurors from twelve to six was
ruled unconstitutional by the Circuit Court of Cook County. Kakos v. Bauer, No. 2015 L 6691
(Cook Cty.Cir. Dec. 21, 2015). In May 2016, on a direct appeal, the Illinois Supreme Court heard
oral argument in Kakos. At the time of publication of this handbook, the Illinois Supreme Court
had not ruled.
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§8.8
ILLINOIS EMINENT DOMAIN PRACTICE
735 ILCS 5/2-1106(a) provides that each side shall be entitled to five peremptory challenges.
The section further provides that
[i]f there is more than one party on any side, the court may allow each side
additional peremptory challenges, not to exceed 3, on account of each additional
party on the side having the greatest number of parties. . . . If the parties on a side
are unable to agree upon the allocation of peremptory challenges among themselves,
the allocation shall be determined by the court. Id.
The courts generally are fairly liberal in granting additional challenges, but in most eminent
domain cases, more than one owner is designated as a defendant with respect to each parcel
sought to be taken. If the interest of the parties with respect to each parcel is the same, additional
peremptory challenges rarely will be allowed. When separate parcels are being tried together with
separate distinct ownership involved, each parcel is considered a separate party.
735 ILCS 5/2-1106(b) also provides that one or two jurors, in addition to the regular panel, be
selected to serve as alternate jurors. Attorneys generally agree to accept the verdict of eleven or,
in some cases, the verdict of as few as ten, in the case of incapacity of a juror or jurors during a
trial. Due to the expense involved in the trial of most eminent domain cases, at least one alternate
juror should be selected if the attorneys cannot make such a stipulation.
C. [8.8] Voir Dire
S.Ct. Rule 234 governs the conduct of the voir dire examination of the jurors. The rule
provides that the court shall conduct the voir dire examination of prospective jurors by putting to
them questions it thinks appropriate, touching on their competency to serve as jurors in the case
on trial. The rule further provides that the court may permit the parties to submit appropriate
additional questions to it for further inquiry or may permit the parties to supplement the
examination by such direct inquiry as the court determines proper. The rule also provides that
questions shall not directly or indirectly concern matters of law or instructions.
While S.Ct. Rule 234 provides that the court may conduct the entire voir dire, most trial
judges permit the attorneys for the parties on trial to ask additional questions after the initial
interrogation of the jury by the court. This questioning of the jurors is the opening gambit in the
attorney’s relationship with the jurors, a relationship that continues through the trial until
counsel’s concluding remarks in the final argument. To be an effective advocate for the client, the
attorney should be sure that this first contact with the jurors is a favorable one. Therefore, the
preparation and care in the voir dire can be as important, in many cases, as the trial of the case
itself. The method of conducting the voir dire is beyond the scope of this chapter. See Robert
Marc Chemers, Ch. 2, The Jury: The “Right” to It and the Selection of It, ILLINOIS CIVIL
PRACTICE: TRYING THE CASE (IICLE®, 2012). Simply stated, the voir dire should be
conducted so as to give the jurors a favorable impression of counsel and at the same time give
counsel the information needed to exercise — or not to exercise — a peremptory challenge or
challenge for cause. The luck of the draw, insofar as jurors are concerned, can certainly determine
the direction of the voir dire. Therefore, each trial attorney should have an outline of exactly the
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§8.10
kind of juror he or she would like to have try the case and, conversely, the type of juror he or she
would want to exclude. The petitioner’s attorney in an eminent domain action does not want, in
most cases, to have jurors who have had or who expect to have their property taken by a
governmental body. By the same token, counsel for a defendant will shy away from employees of
the condemning body or jurors similarly situated. Obviously, the circumstances of each case must
govern the jury selection.
Inasmuch as the trial of the eminent domain case is solely for the determination of the
compensation and damages to be awarded the defendants by reason of the taking, and inasmuch
as all matters pertaining to the right and necessity of the petitioner to condemn have already been
resolved as a matter of law by the court, any questions directed to the jurors concerning those
matters are improper.
D. [8.9] Oath of Jurors
735 ILCS 30/10-5-40 provides this supplemental oath to be administered to the jury in
eminent domain proceedings:
You and each of you do solemnly swear that you will well and truly ascertain and
report just compensation to the owner (and each owner) of the property which it is
sought to take or damage in this case, and to each person therein interested,
according to the facts in the case, as the same may appear by the evidence, and that
you will truly report such compensation so ascertained: so help you God.
IV. [8.10] OPENING STATEMENT — GENERAL THEORY
The opening statement in an eminent domain proceeding should be no different than in any
other lawsuit. The purpose of an opening statement is to give the jury an outline of what the
attorney for each side expects the evidence in the case to prove. It is improper for counsel to tell
the jury what each witness will say in detail. See Pietsch v. Pietsch, 245 Ill. 454, 92 N.E. 325, 326
(1910); 75 AM.JUR.2d Trial §204 (1991). Counsel should be as brief as possible, yet lengthy
enough to properly inform the jury of the client’s theory of the case affecting the valuation of the
taking and damages, if any.
In an eminent domain case, it is imperative that each side present its opening statement before
the jury view of the premises in question takes place because, if the view is to have any validity at
all in the case, the jurors should be prepared for it by the opening statements. Those physical
characteristics of the premises that counsel deems significant should be described with such
clarity that the jurors can readily recognize them when they view the property.
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V. JURY VIEW OF PROPERTY
A. [8.11] When Required
735 ILCS 30/10-5-45 provides that the “jury shall, at the request of either party, go upon the
land sought to be taken or damaged, in person, and examine the same.” The view is normally
considered to be mandatory, notwithstanding the fact that there has been a substantial change in
the condition of the premises between the date of the filing of the petition for condemnation and
the time of the jury view. See Springer v. City of Chicago, 135 Ill. 552, 26 N.E. 514, 517 (1891);
South Park Com’rs v. Livingston, 344 Ill. 368, 176 N.E. 546, 549 (1931). However, the Illinois
courts have recognized that, under the quick-take procedure or certain other situations involving a
substantial change in the appearance of the property, the requirement for a jury view of the
premises would result in an injustice. In these situations, a view by the jury is within the sound
discretion of the trial court. See Department of Public Works & Buildings v. Remmerie, 29 Ill.2d
40, 192 N.E.2d 877, 878 – 879 (1963); Department of Business & Economic Development v.
Phillips, 43 Ill.2d 28, 251 N.E.2d 170, 174 (1969); Illinois State Toll Highway Authority v. Grand
Mandarin Restaurant, Inc., 189 Ill.App.3d 355, 544 N.E.2d 1145, 1148, 136 Ill.Dec. 370 (2d
Dist. 1989); Department of Public Works & Buildings of State of Illinois ex rel. People v.
American National Bank & Trust Co., 36 Ill.App.3d 439, 343 N.E.2d 686, 691 (2d Dist. 1976). If
such a view is permitted under any situation in which there has been a change in the condition of
the property, the jury must be advised of the changes between the date of filing and the view. See
City of Chicago v. Shell Oil Co., 29 Ill.2d 136, 193 N.E.2d 759, 760 (1963).
If the case is tried before a court and without a jury, a view by the trial judge is not required
but is within his or her sound discretion. City of Chicago v. Lord, 279 Ill. 582, 117 N.E. 52, 55
(1917).
B. [8.12] View as Evidence
Although a view of the premises is evidence to be considered by the jurors (Cook County v.
North Shore Electric Co., 390 Ill. 147, 60 N.E.2d 855 (1945)), the jurors may not ignore the other
evidence of value in the case in arriving at their verdict. City of Chicago v. Callender, 396 Ill.
371, 71 N.E.2d 643 (1947); City of Chicago v. Koff, 341 Ill. 520, 173 N.E. 666, 668 (1930).
Specifically, the jury will be instructed that the evidence consists of testimony of the witnesses,
exhibits admitted by the court, and the jury’s view of the property.
C. [8.13] Time for Request and Time of View
The caselaw affords little guidance as to the time to make the request for the view. Good
practice would suggest that the request should be made promptly at the beginning of the trial and
out of the jury’s presence. The request should be made before the close of the proofs. See
Sanitary District of Chicago v. McGuirl, 86 Ill.App. 392, 399 (1st Dist. 1899).
Similarly, the view, as evidence, should be conducted before the close of the proofs. Most
lawyers in eminent domain cases find it best to hold the view either immediately after the opening
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statements or after or during the testimony of the petitioner’s engineer as to the contemplated
improvement. In the latter situation, plats, drawings, and other exhibits can be testified to and
admitted into evidence, thus making the jury’s view of the premises more meaningful. See United
States v. Meyer, 113 F.2d 387, 396 (7th Cir. 1940).
D. [8.14] Conduct of the View
The eminent domain statutes give little guidance for conducting the view. However,
considering that the view is part of the evidence in the case to be considered by the jury along
with all of the other evidence, both the court and counsel should take particular care to see that
the view is conducted in such a way that it will enhance the jury’s understanding of the case. It
behooves both the court and counsel for both sides to establish the conditions of the view at the
earliest possible time, probably at a pretrial conference. If the attorneys cannot agree on the
conditions of the view, the court should exercise its discretionary power and prescribe them.
One of the most important matters to consider is who can speak or testify during the jury
view. Specifically, the view will not be very helpful to the jurors if the boundaries of the whole
property, the taking, and matters of interest are not pointed out to them during the view. Counsel
should try to agree as to who will speak to the jury and what will be said to them. Obviously,
having a representative of the plaintiff who is familiar with these items placed under oath before
the view with a particular script or outline of topics to cover would be most helpful. In addition,
counsel may wish to consider whether a court reporter should be present at all times.
VI. [8.15] COLLATERAL EVIDENCE
Direct evidence on value is elicited through opinion testimony of valuation witnesses. In
many trials, the key to the process is the presentation of collateral evidence that supports,
explains, or rebuts the opinions of value. The main areas of collateral evidence, discussed in
§§8.16 – 8.35 below, are comparable sales, engineering testimony, land planning testimony, and
demonstrative evidence.
The jury’s sole task in a condemnation case is to decide “the just compensation to be paid to
the owner of the property sought to be condemned.” City of Chicago v. Anthony, 136 Ill.2d 169,
554 N.E.2d 1381, 1383, 144 Ill.Dec. 93 (1990); City of Quincy, Illinois v. Diamond Construction
Co., 327 Ill.App.3d 338, 762 N.E.2d 710, 715 – 716, 261 Ill.Dec. 141 (4th Dist. 2002). Just
compensation is “the fair cash market value of the subject property at its highest and best use on
the date of the filing of the complaint to condemn.” Anthony, supra, 554 N.E.2d at 1383. See also
Department of Transportation ex rel. People v. Central Stone Co., 200 Ill.App.3d 841, 558
N.E.2d 742, 744, 146 Ill.Dec. 779 (4th Dist. 1990). A defendant’s counterclaim for damage to the
remainder is also measured by calculating the fair market value of the defendant’s property, both
immediately before and after the taking. Department of Transportation v. First Bank of
Schaumburg, 260 Ill.App.3d 490, 631 N.E.2d 1145, 1150, 197 Ill.Dec. 686 (1st Dist. 1992).
Counsel may wish to emphasize the definitions of “just compensation,” “fair cash market
value,” and “damage to the remainder” by referring to the jury instructions in both the opening
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§8.16
ILLINOIS EMINENT DOMAIN PRACTICE
statement and closing arguments. Because just compensation is the only issue for the jury to
decide, all other collateral issues should be avoided. See Sanitary Dist. of Rockford v. Johnson,
343 Ill. 11, 174 N.E. 862, 864 (1931) (just compensation is “the only issue triable by jury” in
eminent domain case; “[a]ll other questions are preliminary and must be determined by the court”
before jury is empaneled); Department of Public Works & Buildings of State of Illinois v.
Guerine, 19 Ill.App.3d 509, 311 N.E.2d 722, 725 (2d Dist. 1974) (testimony should be barred if it
relates to collateral issues “that would unduly distract from the main issue of determining just
compensation”).
VII. [8.16] COMPARABLE-SALES EVIDENCE — GENERAL RULES
The price for which similar properties are sold (comparable sales) is, in many cases, the most
effective evidence in a condemnation case. The jury is instructed to find the fair cash market
value, i.e., the price the property would sell for on the open market if the buyer and the seller
were acting voluntarily and with knowledge. A jury may be skeptical of highly qualified
valuation witnesses with widely disparate opinions of value. Sales evidence is a key piece of
evidence for a jury to use to test the opinions of value.
Comparable-sales evidence is admissible if the transaction is bona fide, is voluntary, involves
land similar to the subject property, and was made at or about the same time as the valuation date.
City of Chicago v. Blanton, 15 Ill.2d 198, 154 N.E.2d 242 (1958). No fixed or general rules exist
to govern the degree of similarity necessary to make a sale admissible. City of Chicago v.
Vaccarro, 408 Ill. 587, 97 N.E.2d 766 (1951). Admission or exclusion of comparable-sales
evidence rests in the