SIXTH DIVISION

February 5, 1999

1-97-3703

JUSTICE QUINN delivered the opinion of the court:

The Department of Transportation of the State of Illinois (IDOT) appeals from a denial of its motion for judicial declaration of whole property and its motion for reconsideration. IDOT also appeals from a jury verdict awarding Chicago Title and Trust Company (Chicago Title), as trustee under trust No. 1066693, damages for a certain parcel of property it held in trust which was condemned.

By its motion, IDOT sought a declaration that three other parcels of property, all contiguous with the parcel at issue in this case, constituted a single piece of property for purposes of determining remainder damages. However, during the pendency of this action, IDOT condemned portions of two of these other parcels of property and obtained final judgment in those separate cases.

The issue in this case is whether evidence of valuation and remainder damages submitted to the jury in the instant case was correctly confined to the parcel in this case, or should the jury have been given evidence that the other contiguous parcels were part of a larger tract of property that allowed access, thereby reducing remainder damages?

Statement of Facts

Beginning in 1988, IDOT acquired several lots of property in northwestern Cook County at the intersection of Route 59 and Route 20. IDOT condemned three parcels of property at that location for the purpose of improving the flow of traffic on an entrance/exit ramp. For purposes of this appeal, these parcels will be designated as the "East Parcel," the "Starview Parcel," and "West Parcel 1." Prior to the condemnation of portions of these parcels, Route 20 had four lanes of traffic each 10 feet wide with no shoulders on the side of the road. Route 59 had two lanes, each 11 feet wide. After the take, Route 59 still went under Route 20, but the connecting ramps were modernized and traffic signals were placed on Route 59. Route 20 remained a four-lane thoroughfare, but the lanes were widened to 12 feet, and a median dividing traffic was installed. Route 59 was widened to four lanes.

The first parcel that was the subject of condemnation proceedings filed by IDOT, the East Parcel, was located immediately north of Route 20 and immediately west of Route 59. On September 7, 1988, IDOT filed a petition to condemn part of the East Parcel, pursuant to the "quick-take" provision of the Illinois Eminent Domain Act (Eminent Domain Act) (735 ILCS 5/7-103 (West 1994)). The East Parcel was comprised of a 10.197-acre lot immediately west of Route 59, immediately north of Route 20, and contiguous to the Starview Parcel on the East Parcel's west and north boundaries. Department of Transportation v. Alex, No. 88 L 51075. Pursuant to a "quick-take" proceeding, IDOT was vested with fee simple title to two strips of land, parcels 07U0004A and 07U0004B, on the East Parcel comprised of 3.229 acres, as well as a 0.801-acre temporary easement, parcel 07U0004TE, over the East Parcel. See 735 ILCS 5/7-103 (West 1994). Parcel 07U0004A was adjacent to Route 59, and parcel 07U0004B was on the corner of Route 20 and Route 59.

As of the date of the petition, the East Parcel was not improved with sewer and water lines, but had a private well and septic system. The East Parcel is located in unincorporated Cook County and was zoned as commercial property. At the time the petition was filed, the East Parcel was vacant, except for a small diner located in the southeast corner of the property. Ten acres of the East Parcel were used as a restaurant/truck stop called "Connie's," the Starview Parcel at the time was used as a drive-in movie theater, and West Parcel 1 was used as an auto salvage company.

Prior to April 19, 1988, title to the East Parcel was held by Marco J. Muscarello, as trustee of a land trust under trust number 1. On April 19, 1988, Muscarello and the Boulevard National Bank Association (Boulevard Bank) trust entered into articles of agreement for a trustee's deed to sell the East Parcel to the Boulevard Bank trust. The terms of the agreement were that possession was to be delivered within 90 days of the "initial closing," on or about November 15, 1988. The court entered an order vesting title in IDOT to the condemned portion of the property on February 9, 1989. On February 28, 1989, the court entered an order finding that Muscarello, as trustee, was the owner of the East Parcel, and ordering the State Treasurer to pay Muscarello $615,700 for preliminary just compensation. On January 23, 1991, Muscarello and the Boulevard Bank trust completed the "Final Closing" under the articles of agreement for trustee's deed.

The Starview Parcel is the subject of the underlying condemnation proceeding, which was filed on August 18, 1989, pursuant to the "quick-take" provision (735 ILCS 5/7-103(West 1994)). Department of Transportation v. Chicago Title & Trust Company, No. 89 L 51015. The Starview Parcel was owned by Chicago Title, as trustee of a land trust under trust number 1066693. The Starview Parcel is contiguous to the East Parcel on the East Parcel's west and north sides. The Starview Parcel is immediately north of Route 20, and the majority of the property is 715 feet west of Route 59, but a small northeast portion extends eastward along the northern boundary of the East Parcel to Route 59. At the time of the condemnation petition, the Starview Parcel consisted of 26.324 acres located in unincorporated Cook County near the villages of Bartlett and Streamwood. The Starview Parcel was also zoned as commercial property by Cook County. At the time of the petition, the Starview Parcel was vacant, improved only with a drive-in movie theater, the Starview Drive-in Theater, that was no longer in operation. The Starview Parcel had no sewer or water lines, but had a private well and septic system.

Pursuant to a "quick-take" proceeding, IDOT was vested with fee simple title to a 0.315 acre-strip of frontage property along Route 20, parcel 07U0003A, and a 0.126 acre-strip of frontage property along Route 59, parcel 07U0003B. See 735 ILCS 5/7-103 (West 1994). IDOT also acquired all access rights to Route 20 from the Starview Parcel.

Frank Marsico was the sole benficiary of the land trust of the Starview Parcel. On March 1, 1988, Marsico entered into an agreement with Highland Development Company (Highland Development), an Illinois corporation, pursuant to a trustee's deed to allow Highland Development to purchase the Starview Parcel. The shares of Highland Development were held entirely by three people: Gregory Matic, John Wilson, and Francis Wilson. Matic testified at his deposition that Highland Development had obtained numerous engineering site plans, reports, and a plat of survey depicting all four parcels, for planning the development of the East Parcel, Starview Parcel, and West Parcel 1 as a single, unified commercial retail shopping center.

On August 15, 1988, Chicago Title entered into an agreement with Boulevard Bank, as trustee under a land trust under trust number 8767, and executed a "Memorandum of Articles of Agreement for Deed" (articles of agreement), which was intended to evidence the Boulevard Bank Trust's interest and right to purchase the Starview Parcel in accordance with the March 1, 1988, trustee's deed. The Articles of Agreement document was recorded with the Cook County recorder of deeds. Under the Articles of Agreement, possession of the Starview Parcel was to be delivered to the Boulevard Bank Trust at the time of the "Initial Closing," or about August 3, 1988. Subsequently, on January 23, 1991, Chicago Title and the Boulevard Bank Trust completed the "Final Closing" under the Articles of Agreement, at which time legal title to the Starview Parcel was transfered to the Boulevard Bank Trust.

On October 24, 1989, the court entered an order vesting title to the parts taken of the Starview Parcel, the frontage along Route 20 and Route 59 and the access rights to Route 20, in IDOT. On December 5, 1989, the court entered an order finding Chicago Title to be the owner of the Starview Parcel, as trustee, and ordering payment of preliminary just compensation to Chicago Title.

Also at issue in the present appeal are two additional parcels. The first of these additional parcels, West Parcel 1, consists of approximately nine acres located north of Route 20 and immdiately west of Parcel 1. IDOT filed a complaint to condemn a portion of West Parcel 1 on August 10, 1989. Department of Transportation v. LaSalle National Bank, No. 89 L 50967. West Parcel 1 was zoned as commercial property and consisted of vacant land, with a barn at the southern boundary of the property. On October 13, 1989, title to the part taken vested in IDOT. The court entered a final judgment order on May 22, 1990, for a preliminary and final just compensation award to Gershon Hammer, as sole beneficiary of LaSalle National Bank land trust 10-027764-90. Hammer withdrew the award, and the award was then made payable to LaSalle National Bank.

Prior to this final judgment order, Hammer had contracted to sell West Parcel 1 in a purchase agreement dated May 19, 1988, to the Boulevard Bank Trust. The purchase agreement provided as a condition precedent to closing that the sellers of the Starview Parcel and the East Parcel must be ready, willing, and able to convey those properties at the time of the closing of West Parcel 1. The closing was held on February 1, 1991, at which time legal title to West Parcel 1 passed to the Boulevard Bank Trust.

The second of these additional parcels, West Parcel 2, was not subject to a condemnation proceeding. West Parcel 2 is a 9.3-acre plot of undeveloped property, also zoned as commercial property, located north of Route 20 and immediately west of West Parcel 1. Thus, on the plat of survey, the lots are contiguous, from east to west, with the East Parcel being the easternmost parcel, then the Starview Parcel, West Parcel 1, and West Parcel 2 being the westernmost parcel. West Parcel 2 was sold on September 19, 1989. The seller was the Jel Sert Company, an Illinois corporation, and the buyers were the Boulevard Bank Trust and Highland Development. The real estate sales contract closed on July 30, 1990, at which time legal title to West Parcel 2 passed to the Boulevard Bank Trust.

In the condemnation proceedings for the East Parcel, the Boulevard Bank Trust filed a cross-petition for remainder damages on November 16, 1988, alleging that the condemned portions of the East Parcel were "part and parcel of a larger tract of land," described in an attached legal description consisting of the East Parcel, Starview Parcel, and West Parcel 1.

On November 28, 1989, the same counsel representing the Boulevard Bank Trust in the condemnation litigation for the East Parcel also appeared in the condemnation proceedings for the Starview Parcel on behalf of defendants Chicago Title, the Boulevard Bank Trust, and Starview Theater (defendants). On May 17, 1990, the Boulevard Bank Trust filed a cross-petition for remainder damages in the condemnation litigation for the Starview Parcel, alleging that the condemned portions of the Starview Parcel were part of a larger tract consisting only of the whole of the Starview Parcel.

On September 25, 1992, IDOT filed a motion to consolidate the condemnation proceedings for the Starview Parcel and the East Parcel. The trial court granted the motion for purposes of discovery, but denied the motion to consolidate the cases for trial. In a written ruling issued January 19, 1993, the trial court found that consolidation for discovery would be proper because it would serve the purpose of judicial economy and because the cases involved similar issues and evidence, but found that a consolidated trial of the two parcels would confuse the jury, particularly with respect to valuation evidence.

On April 2, 1993, IDOT filed a motion for judicial declaration of whole property, seeking a judicial finding that the remainder property for purposes of determining remainder damages included not only the Starview Parcel, but also the East Parcel, West Parcel 1 and West Parcel 2. IDOT alternatively argued that, at the least, the Starview Parcel, the East Parcel, and West Parcel 1 constituted the remainder property. IDOT argued that the four parcels were subject to common ownership and that discovery had revealed that defendants intended to develop the four parcels as a unified commercial development. The trial court denied this motion on August 3, 1993. Defendants were granted leave to file an amended cross-petition for damages, which sought remainder damages for the Starview Parcel only, instead of the larger tract comprised of all four parcels.

On November 22, 1996, IDOT filed a motion to reconsider the August 3 order in the East Parcel litigation and adopted the same motion in the Starview Parcel litigation. IDOT argued that if the four parcels were not declared to be a single remainder tract, the Boulevard Bank Trust could claim that the Starview Parcel had reduced access to Route 59 and a total loss of access to Route 20, when the Starview Parcel had access to Route 59 across the East Parcel and had access to Route 20 across either West Parcel 1, West Parcel 2, or both. After hearing argument on the motion, the trial court denied IDOT's motion to reconsider. Thus, only the Starview Parcel was considered in determining remainder damages at trial.

At trial, defendants presented evidence as to remainder damages as to the Starview Parcel's purported total lack of access to Route 20 and reduced access to Route 59 due to the taking of the frontage portions of the Starview Parcel.

Brian Bottomly, a condemnation engineer, testified for IDOT. Bottomly was a full-time employee of IDOT for 12 years. Bottomly testified that the whole property was 26.324 acres, the part taken was 0.441 acres, and the remainder property was 25.883 acres. Bottomly testified that IDOT was acquiring all of the property rights of access from the remainder property to Route 20.

Gerald Lindgren, a transportation engineer, also testified for IDOT. Lindgren had 34 years of experience in the design of access to numerous shopping centers, industrial parks, public facilities, and residential areas. Lindgren testified that IDOT's taking eliminated all of the rights of access to Route 20. Lidgren testified that, after the taking, one could not get to or from the Starview Parcel onto Route 20. Lindgren further testified that the East Parcel separated the remainder of the Starview Parcel from the corner of Route 20 and Route 59. However, Lindgren testified that access to the Starview Parcel via Route 59 was better after the take. In Lindgren's opinion, access to the Starview Parcel was safer, and the property could function after losing its Route 20 access. On cross-examination, Lindgren testified that if the Starview Parcel had been developed as a shopping center before the take, it could have had three driveways on Route 20 and that there could be no driveways after the take.

IDOT next presented the testimony of two land-planning experts.

First, Rolf Campbell testified. Campbell testified that the Starview Parcel's highest and best use before the take was the development of a 240,000-square-foot shopping center on the whole property of the Starview Parcel. After the take, with all access to Route 20 eliminated, the Starview Parcel's highest and best use would be limited industrial. An industrial use would not generate traffic like a shopping center would, and such a use was allowed under the commercial zoning of the area.

Campbell opined that there was a need and demand for a shopping center before the take because of the existing and projected population statistics. Campbell testified that he planned the Villa Olivia 2,000-residential-unit development in 1989 across Route 20 and a half mile west of the Starview Parcel. Immediately north of the Starview Parcel were two townhouse projects, which began in 1990. Within five miles of the Starview Parcel, the population was 160,000 people. There was no other community shopping center until four or five miles west in Elgin and 2.2 miles south on Route 59 at Stearns Road.

Alan Kracower was IDOT's other land-planning expert. Kracower had been a land planner for 37 years, with experience in planning shopping centers and residential and industrial developments. Kracower had been familiar with the Starview Parcel for 20 years. Kracower testified that there was a lack of development in the area, using exhibits of aerial photographs of the area. Kracower opined that the Starview Parcel could not be used for a shopping center because there was no demand for such a use on the Route 20 corridor. Kracower testified that the best use for the Starview Parcel before the take, based on the demographics, his review of Lindgren's report, his experience, and the trend of development, was a mixed use of "destination" commercial and low-intensity industrial and residential. After the take, the highest and best use for the property was residential and industrial. Any destination commercial use was lost because of the loss of access to Route 20.

IDOT's valuation opinion witness, Douglas Adams, testified that the highest and best use of the Starview Parcel before the take was commercial, such as office-research or office-warehouse. Adams testified that the fair market value of the portion taken was $33,600, or $1.75 per square foot. Adams considered four comparable sales in the area in arriving at that figure. In Adams' opinion, the highest and best use after the take was the same as before, despite the loss of all access rights to Route 20, and the value of the remainder was $1.50 per square foot. Adams testified that the damages to the remainder of the Starview Parcel were $281,900. On cross-examination, Adams testified that the 15% figure constituting damage to the remainder was based on the fact that accessibility had been reduced by 15%.

Joseph E. Zgonina, a traffic and civil engineer, testified for defendant. Zgonina had prepared the design and supervised the extension of a sewer system to the interchange of Route 20 and Route 59 in the 1980s and was familiar with the Starview Parcel. Zgonina testified that Route 59 is one of the major north/south collector arterial highways in the Chicagoland area, with large volumes of traffic. Route 20 is a major east/west four-lane highway. According to the state and local highway department maps, which list traffic flow statistics for 1989, Route 59 carried between 24,000 to 25,000 cars per day past the Starview Parcel, and Route 20 carried between 26,000 to 29,000 cars per day past the Starview Parcel.

Zgonina testifed that before the taking of access rights to Route 20, the Starview Parcel was a viable commercial site and could have had a safe and efficient ingress and egress to Route 20. Zgonina testified that "based on the length of the property and the presence of other driveways in close proximity to the site or on adjacent properties," the Starview Parcel could have been developed with a full access point on Route 20. In Zgnonina's opinion, prior to the take, the Starview Parcel could have had one full driveway and two right in/right out driveways along its frontage on Route 20, with one full driveway along the frontage on Route 59. Zgonina testified that the Starview Parcel did not have commercially viable access after the take. Without the access to Route 20, all traffic into the property would be forced onto the intersection ramps. Zgonina testified that, given the location of left-turn lanes on the adjoining residential developments, the Starview Parcel could not have had a safe left-turn lane from Route 59 for either a commercial or industrial use. According to Zgonina, a 25-acre shopping center would generate a high volume of cars that would need to turn left into the Starview Parcel and would back up traffic along Route 59. The same would be true for an industrial or residential development. There would be no protected left-turn lane on Route 59, thus making such access unsafe and inefficient. On cross-examination, Zgonina testified that the location of Connie's Restaurant on the East Parcel along Route 20 could have reduced the number of driveways into the Starview Parcel before the take of the access rights.

Defendants' valuation opinion witness was Arthur Sheridan, a real estate broker and appraiser. Sheridan testified that the Starview Parcel's highest and best use before the take was a shopping center, given the ingress and egress to two major highways, the potential for growth in the area, the zoning, availability of utilities, and the trend of development. IDOT later cross-examined Sheridan as to the lack of any shopping center for several miles in the area. However, Sheridan testified that the fact that shopping centers of over 200,000 square feet were developed at Stearns Road and Route 59 showed that the area's population was sufficient for a shopping center before the take. Sheridan valued the whole of the Starview Parcel as of August 18, 1989, at $2,580,000, or $2.25 per square foot. Sheridan valued the taken portion of the property also at $2.25 per square foot, which, for 0.441 acres or approximately 19,000 square feet, rounded to a figure of $43,200. In calculating the fair market value of the Starview Parcel, Sheridan considered four comparable sales in the area. Sheridan valued the remainder of the Starview Parcel at $1.10 per square foot, with damages to the remainder in the amount of $1,296,586. Thus, the value of the remainder before the take was $2,536,800; after the take, the value was $1,240,214.

The jury returned a verdict awarding defendant $43,222.50 for the property taken, which represents the calculation of the value of $2.25 per square foot times 0.441 acres, which is 19,210 square feet. The jury also awarded $1,071,089.85 in remainder damages. This figure is between the estimations of IDOT's and defendants' witnesses as to the value per square foot of the remainder. IDOT's witness, Adams, valued the damages to the remainder at $281,900, and defendants' witness, Sheridan, valued the damages to the remainder at $1,296,586. Thus, the total compensation to defendant was $1,114,312.35.

DISCUSSION

I. RULING ON MOTION FOR JUDICIAL DECLARATION OF WHOLE PROPERTY

The issue presented by the instant case is whether the valuation evidence on remainder damages was correctly confined by the trial court to the Starview Parcel only, or whether the valuation evidence should have included the other parcels, which were condemned separately and valued on different dates. IDOT alternatively argues that evidence of the remainder damages should have included all of the four parcels, including the Starview Parcel. IDOT argues that, at a minimum, the Starview Parcel, the East Parcel, and West Parcel 1 constituted a single remainder tract. In essence, to accept IDOT's argument, we would have to rule that the valuation of remainder property may be changed after other contiguous parcels are obtained by the owner of the condemned parcel.

The United States Constitution provides that private property shall not be "taken for public use without just compensation." U.S. Const., amend. V. The Illinois Constitution provides that this state is prohibited from taking or causing damage to private property without just compensation. Ill. Const. 1970, art. I,