Village of Woodridge v. Board of Education of Community High School District 99

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-08-0593 Rel

Case Date: 07/26/2010

Preview:No. 2-08-0593

Filed: 7-26-10

IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

THE VILLAGE OF WOODRIDGE, Plaintiff-Appellee, v. THE BOARD OF EDUCATION OF COMMUNITY HIGH SCHOOL DISTRICT 99, Defendant-Appellant (The County Board of School Trustees of Du Page County and Unknown Owners, Defendants).

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Appeal from the Circuit Court of Du Page County.

No. 05--ED--64

Honorable John T. Elsner, Judge, Presiding.

JUSTICE HUDSON delivered the opinion of the court: Defendant, the Board of Education of Community High School District 99 (hereinafter defendant or the district), appeals the Du Page County circuit court's order denying the traverse and motion to dismiss1 (hereinafter the traverse) it filed in response to an eminent domain proceeding initiated by plaintiff, the Village of Woodridge (hereinafter plaintiff or the village), as well as the court's denial of its subsequent motion to reconsider that order. The district also appeals the denial

1

A traverse and motion to dismiss is a procedural device that the target of an eminent domain

proceeding may file to challenge the right of the condemnor to take the property at issue. Village of Cary v. Trout Valley Ass'n, 282 Ill. App. 3d 165, 169 (1996).

No. 2--08--0593 of its posttrial motion. The district raises a number of issues relating to both the traverse and the valuation of the property taken by the village. A number of school districts have filed a brief as amici curiae, which we have reviewed and considered. For the reasons that follow, we affirm. I. BACKGROUND The instant case commenced when the village filed an eminent domain action on May 23, 2005. The village sought to acquire a parcel (hereinafter the property) adjacent to its village hall and owned by the district. The district, whose territorial boundaries lie within seven municipalities, acquired most of the property in 1967 in a voluntary, negotiated sale. It subsequently acquired the balance of the property in 1995 in a land swap with the village. When the parties made this agreement in 1995, they included a provision that would require the village to grant the district a special-use permit for the property. In 1971, the district and the Woodridge Park District entered into an agreement under which the park district leased the property for park and recreation purposes. The lease was for a one-year term, and it automatically renewed each year. The district could terminate the lease with 60 days' notice. On August 15, 2005, the district adopted a resolution regarding its need for the property. The resolution provided, inter alia, that the property is "necessary, suitable and convenient for school facilities"; that the taking "will materially impair or interfere with the uses already existing, such current uses including but not limited to providing for outdoor educational opportunities and the real estate needs of the district;" that the district will be deprived of the ability to use the property in the future for school facilities; that the district will not realize full value of the property in an eminent domain action; that the district will not be able to purchase comparable property with the proceeds of an eminent domain action; and that the "future taxable value of the [p]roperty will be lost." The

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No. 2--08--0593 district asserts that we owe deference to the legislative findings it made in the course of adopting the resolution. During the hearing on the traverse, the following evidence was presented. The village first called Julia Beckman, who was the president of the district. She acknowledged that the district had solicited bids for the property, through a company called Newcastle. She agreed that the district had "potential uses for the property," and she explained that the district had drawn up plans for athletic fields. It had "studied various uses for the property," but it "had no money." Previously, it had planned to build a third high school on the site, but that was not an "immediate option" due to the failure of a referendum in 1997. She agreed with the village's counsel that "there weren't any particular plans in place and there were just potential uses for the property in May 2005." Beckman was unaware of any school-sponsored educational activity that had ever taken place on the property, though one was planned for the summer of 2007. To her knowledge, the property had never been used for any classes. She testified that the district lacked classroom space, as the State continued to mandate new classes. Beckman stated that she was aware of the opinion of the district's

superintendent that the district could accommodate "a few hundred more students." She agreed that, "narrowly construed," the opinion was valid. She was also aware of Dr. John Casarda's demographic report, which concluded that enrollment was at a peak and would decline through 2020. She was aware of no study that concluded otherwise. Beckman further testified that the district would be unable to purchase an acceptable replacement if it received the fair market value of the property. On the other hand, she agreed that the proceeds from a sale of the property could be used to meet "significant needs for capital improvement." The district had considered selling the property.

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No. 2--08--0593 During cross-examination, Beckman testified that she was a realtor and was familiar with the local market. Though the district considered selling the property, it had never decided to do so. It had never determined that the property was "surplus." The property itself could not be replaced, as there was no comparable property within the district. She also testified that, in 1997, the district had voted to construct a third high school on the property. She noted that the mere fact that a third high school was not currently a possibility did not foreclose building one in the future. Beckman explained that the reason bids were solicited for the property in 2005 was to ascertain its value. She believed that it was better to solicit bids than to simply get an appraisal, because the property was unique and previous appraisals "just didn't seem to capture its uniqueness." During redirect examination, Beckman agreed that the effect of the condemnation concerned "the future use of the property"--uses that "may or may not occur." She acknowledged that her real estate practice consisted primarily of single-family residences and that she had never sold a parcel the size of the property. Further, one of the purposes of having Newcastle determine the value of the property was to see if it was high enough to warrant a sale. The village next called Dr. David Eblen, the superintendent of the district. Eblen denied that the district had no intention of seeking another referendum to construct a third high school, though he agreed that the district had no specific plan to do so as of May 2005. Previously, there had been three similar referendums, the most recent occurring in 1997, and all three had failed. Eblen agreed that the district did not have the resources to fund such a project. Moreover, the district had never made a decision to develop the property or otherwise use it to meet the district's needs. Eblen acknowledged that the district solicited bids for the property to establish a value so the district could determine whether to sell it and that the district was still considering selling the property. Eblen

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No. 2--08--0593 identified an e-mail authored by him that stated, "the Community High School District 99 Board of Education has agreed to offer for sale and solicit bids for the district's 44 acre parcel land [sic] located in Woodridge." The e-mail (which was released as part of Newcastle's marketing effort) stated that the district was selling the property to fund capital improvement projects. The marketing release also quoted the district's comptroller as stating that, due to a 2004 study of projected growth in the district, it was determined that a third high school was unnecessary. The release also stated that a majority of the district's constituents believed that the property should be sold. During cross-examination, Eblen explained that there had been a recent school board election where three incumbents were reelected. All three were opposed by candidates who advocated selling the property. He explained that, though he believed that the district could absorb a "couple of hundred more students," it would be difficult in that it would require "classes to be held in less than appropriate areas." Eblen noted that the first line under the heading in the solicitation for bids stated that the district was not obligated to accept any of the bids it received (he later agreed that this was a standard reservation in the district's solicitations for bids). He added that the fact that the district had determined what it would do with the proceeds of a sale did not mean that it had actually decided to proceed with a sale. Eblen identified plans an architectural firm had drawn up for athletic fields on the property. The district never went ahead with this work due to the "incredible amount of capital" needed. Eblen further testified that the district had never determined that the property was not needed. During redirect examination, Eblen acknowledged that he was unaware of any "outdoor educational activities" or classes taking place on the property. He had, however, heard that it had been used for classes--though he had no personal knowledge to that effect.

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No. 2--08--0593 The next witness called by the village was Theresa Pavesich, a member of the district's board. Pavesich voted for the district's resolution regarding the need for the property. She explained that Casarda's enrollment projections were only one factor she considered in voting for the resolution. She had not independently ascertained whether there were any viable replacement properties within the district. She agreed that the district had no present need for a third high school. Pavesich testified that she was unaware of any use to which the property was put, with the exception of uses by the village. In May 2005, the district had no "specific use [to which] it intended to put the property." During cross-examination, Pavesich stated that the lawsuit by the village was a factor in her voting for the resolution. She also testified that a "band camp" was scheduled to take place on the property in August 2007. Finally, Pavesich stated that the district had never determined that the property was not needed. Michael Adams next testified for the village. He is the director of parks and recreation for the Woodridge Park District. He has held that position since 2006 and has been employed by the park district since 1990. In 1991, Adams was charged with creating a conceptual master plan for use of the property for park district purposes. In 2004, the park district and the village hired Hitchcock Design Group to prepare a conceptual master plan for the town-center area, which included the property. The park district leased the property from the district. The lease allows the park district to use the property for parks, recreation, and park services. The park district maintains the property. The property is used for soccer practices, hay wagon rides, garden plots, a mulch site, and special events, such as the "summertime jubilee." The park district operates a soccer league that is open to nonresidents. Further, a person does not have to be a resident of the park district to have a garden plot. The mulch site and the summertime jubilee are organized jointly by the park district and the

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No. 2--08--0593 village. Approximately 10,000 people attend the summertime jubilee, which has been held since 1984. People also use the property for "passive park use," such as picnicking, walking, or playing frisbee. Adams later clarified that a passive park use is an actual physical use of the property, that is, there is actually someone on the property using it. Any member of the public can use the property in this fashion. Adams testified that he observes the property on a daily basis and has never seen the district using it. Adams also stated that he expects no adverse impact from the village's taking of the property and that there would "actually [be] an enhancement in the development of that site." During cross-examination, Adams acknowledged that portions of the park district lie outside the district. The lease, which goes back to 1971, can be cancelled with 60 days' notice. In 1991, the park district became interested in obtaining a longer-term commitment regarding the property so it could expend resources on longer-term projects. A report from the Hitchcock Design Group indicated that the district's needs would have to be considered. Adams told Hitchcock that he was unaware of any potential needs that the district might have. He made no effort to get any input from the district. Adams agreed that building a third high school or athletic fields on the property would comport with the park district's developmental plan. Adams denied any knowledge regarding the purpose for which the district was holding the property. The village next called John Perry, the administrator for the village. He testified that he had held that position since 1989. His job is to administer the "[v]illage government on a day to day [sic] basis." He also has a role in "strategic management." Perry has a degree in public administration from the University of Chicago and is credentialed by the International City/County Management Association. Perry is familiar with the property. From 1992 to 2000, he coached a soccer team there. Perry recounted the activities the park district conducted on the property. He had never observed

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No. 2--08--0593 or been made aware of any formal uses of the property by the district. The village intends to ensure that the existing uses of the property continue and, perhaps, are enhanced. Perry testified that the relationship between the village and the park district was "probably one of the outstanding governmental cooperation arrangements that you will find anywhere." Perry added that the existing uses of the property would be allowed to continue after the village acquires the property. Use of the property is not restricted to village residents, and Perry did not expect that it would be so restricted in the future. Perry also testified that the village had had discussions with the district regarding the property. The village believed that the district would make a decision regarding the property in 2004 or 2005. The district, however, did not do so. Instead, the property was "put on the market for development as multi-family townhomes." This prompted the village to "involve itself more actively in proposed acquisition of the subject property." Perry stated that developing the property for multifamily housing or any use other than that which has been planned by the village would be detrimental to the village's residents. The village has included the property in its plans for its town center since 1971. During cross-examination, Perry agreed that, at numerous points in planning for the use of the property, it had been recognized that the property might be used for a third high school. In 1999, he attended a meeting at the high school administrative center regarding developing the property with athletic fields. At the meeting the district sought funds from other parties for this purpose. Perry met with Eblen in 2004 to discuss establishing a process by which the village could purchase the property. On April 15, 2005, the district and the village met. The village was dissatisfied with the district's failure to make a decision with regard to the property. The village "didn't agree with the process that [the district] wanted to follow." It requested good-faith progress by April 19. The village also

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No. 2--08--0593 wanted the district to take the property off the market. The district offered a long-term lease, but that was not acceptable to the village as it would preclude certain investments in the property. Perry acknowledged that a potential use of the property would be expansion of other village facilities; however, he later clarified that such expansion would not preclude public use of the property. The village rested after the conclusion of Perry's testimony. The district moved for a directed finding. The trial court denied that motion. The district then called Robert Lemke. Lemke testified that he is a member of the district's board. He was first elected in 2003. The district had never determined that it did not need the property or that the property constituted a surplus. Instead, it adopted a resolution reaffirming the need for the property. The property has been the subject of discussion between the district and the village since before Lemke was on the board. Lemke opined that the district retaining ownership of the property best served the community in that it allowed the district to serve its current and future needs without being required to acquire new property at premium prices. Lemke explained that the district solicited bids for the property in 2005 to ascertain its market value in order to determine what to do with it. During cross-examination, Lemke acknowledged that a 2004 survey indicated that a majority of the district's residents believed that the district should sell the property. Lemke stated that plans existed regarding the property in 2005; however, he added that the district had taken no action to "move on any one of those plans." He acknowledged that, after the distirct determined the value of the property by soliciting bids, selling it was "certainly one of the possible next steps." The district next called Allyn Barnett, another member of the district's board. He had held that position since 2005 and had previously sat on the boards of two other school districts. He has been on a school board for 20 years. Barnett testified that the district never declared either formally

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No. 2--08--0593 or informally that the property is not needed or is unsuitable for school purposes. The subject had, however, been discussed frequently. Barnett voted for the resolution regarding the district's need for the property because he did not wish the village to take the property through an eminent domain action. He believed that there was an "apparent need" for the land. He felt that the district's current facilities were inadequate. Barnett understood that the property was being held for either the construction of a third high school or athletic fields. Barnett opined that there was adequate substitute property within the district, and he identified a potential site. He added that attempts to acquire property around one of the district's high school campuses had proved "extremely costly." Barnett was asked on cross-examination whether he was aware of the district's attempt to market the property. He replied that he was aware of the attempt to establish its value, but he could identify no specific question that would be answered solely by knowing the value of the property. Barnett acknowledged that he was unaware of any outdoor classes taking place on the property. Barnett agreed that there might be a price at which the district would sell the property (he later clarified that he was not aware what that price would be). While Barnett had been a board member, "no specific use of the property had been decided upon." This was because the district "didn't have the money to do that." During redirect, he explained: "[O]bviously there are needs that could be addressed by the property but have there been any specifics that have been determined? That was what I was answering 'no' to." He also opined that "academic and athletic" facilities "could be put on the property" and that the loss of the property would result in an "inability to use that property to meet those needs" and thus would be detrimental to the public. However, no specific plans currently existed.

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No. 2--08--0593 The district next called Megan Schroeder, a realtor who typically deals with residential property and is familiar with large tracts of land. She has also been a member of the district's board since 2003. The board has never determined that the property is not needed or is inconvenient for school purposes. Schroeder testified that the district's "existing use of the property" was that it was "being held to answer the needs of the schools, whether it be for athletic [use] or for building a third high school or for *** building [some] other *** kind of a facility." She added, "[W]e're holding on to it, hoping that some day we [will] be able to financially use it." She voted for the resolution regarding the district's need for the property, because she believed that it would be detrimental for the village to take it. She explained that "we were finally poised in a position where we were able to look at what we really needed for the schools and to determine the value" and "answer the needs of the whole community." Schroeder testified that bids were solicited for the property because it was unique. An appraisal, on the other hand, would "be based on past sales and it wouldn't be reflective of what the market is today." Schroeder, being familiar with the area by virtue of her being a realtor, did not believe that suitable replacement property existed within the district. She stated that the district is "woefully low in property." During cross-examination, Schroeder acknowledged that the district had acquired some property adjacent to one of its campuses, but she pointed out that it was a much smaller area than that of the property. She stated that she had no "definitive answers" with regard to the district's needs. She agreed that "a few hundred more students" could "fit in the building," but added that it would not be desirable. Outside of the band camp that was to use the property in the summer of 2007, Schroeder was not aware of any outdoor educational activity that took place on the property. During redirect examination, Schroeder noted the possibility that the population of the district would grow.

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No. 2--08--0593 She also pointed out that during one year, the Catholic schools raised their tuition, and, as a result, the district had an increase in enrollment of 160 students. A larger student body would increase the need for the property. The last witness called by the village was Mark Staehlin, the district's comptroller. He testified that he is "basically the chief financial officer of the district." He has held this position since 1994. Staehlin testified that the property was purchased from private landowners in the late 1960s. Staehlin identified the "Downers Grove north and south high school masters facility plan." The plan included a provision to build a third high school on the property. A referendum to issue bonds for this purpose failed in 1997. The district also contemplated using the property for soccer fields. A 2004 referendum concerning an operating rate increase also failed. In 2004, the district requested its architect to update plans for a sports complex. Staehlin considered various options concerning the property, including selling it in its entirety, developing the whole parcel, or breaking it up into smaller units that could be developed or sold off independently. Another potential use that was discussed was a transportation facility, which would reduce the cost of busing students. Staehlin testified that Newcastle solicited bids for the property in an effort to ascertain its value. Regarding the band camp that was to be held on the property, Staehlin stated that it was the idea of an associate principal from the district's southern campus. According to Staehlin, as of May 2005, the district's existing use of the property was holding it for future use. During cross-examination, Staehlin acknowledged that one possible outcome when Newcastle marketed the property was that it would be sold (he clarified on redirect that the district wanted to reserve the right not to sell the property). He agreed that from 1994 until 2005, the district had the

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No. 2--08--0593 financial resources to build athletic fields on the property. Staehlin also testified that no one had ever told him that the district could not continue to hold a band camp on the property after the taking. After the submission of certain documentary evidence, the district rested. The district called Perry in rebuttal, and he testified that a transportation center would ruin the prospect of using the property as the "hub of the town center." After argument by the parties, the trial court ruled. The trial court first noted that the statute it had to apply, section 11--61--2 of the Illinois Municipal Code (Code) (65 ILCS 5/11--61--2 (West 2004)), was not ambiguous and did not need to be construed. Thus, the inquiry before it was whether the taking would materially interfere with an existing use or would be detrimental to the public. The trial court noted that the public had rejected the referendums that would have allowed the construction of a third high school on the property. It also observed that the property had been leased to the park district for over 30 years, and it found that the district had never used it for an "existing educational purpose." The trial court stated that its role was not to determine the best use of the property; rather, it was limited to applying the statute. The court then found that there was "no present use of that property." Accordingly, it ruled that the taking would not materially interfere with an existing use. It further determined that the taking would not be detrimental to the public. In addition to disputing the trial court's ruling on the traverse, the district also contests two evidentiary rulings that the trial court made in the course of the hearing on just compensation. We will not set forth in detail the testimony presented at that hearing; instead, we will discuss the evidence only as it pertains to those two rulings. We now turn to the district's arguments. II. ANALYSIS

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No. 2--08--0593 On appeal, the district raises five main arguments. First, it contends that the trial court should not have intervened and resolved the competing legislative determinations made by the village and the district, asserting that this question is not justiciable. Second, it argues that the trial court erred in denying the district the same discovery that it allowed the village. Third, it contends that the taking was not authorized under section 11--61--2 of the Code (65 ILCS 5/11--61--2 (West 2004)). Fourth, it complains of the trial court's decision to limit cross-examination of the village's appraisers regarding an offer to buy the property that was made to the district after the village instituted this action. Fifth, it alleges error in the trial court's refusal to permit one of its appraisers to testify in the justcompensation hearing. We will address these arguments in turn. As a threshold matter, we will accept the trial court's factual findings unless we determine that they are contrary to the manifest weight of the evidence. Chicago Investment Corp. v. Dolins, 107 Ill. 2d 120, 124 (1985). A decision is contrary to the manifest weight of the evidence only if an opposite conclusion is clearly apparent. Vino Fino Liquors, Inc. v. License Appeal Comm'n, 394 Ill. App. 3d 516, 523 (2009). Questions of law, including matters of statutory construction, are reviewed de novo. LaSalle Bank National Ass'n v. Cypress Creek 1, LP, 398 Ill. App. 3d 592, 597-98 (2010). Decisions lying within the discretion of the trial court, such as the admission of evidence, will be reversed only if the trial court abuses that discretion. U.S. Bank v. Lindsey, 397 Ill. App. 3d 437, 456 (2009). An abuse of discretion occurs only where no reasonable person would take the trial court's view. Bauer v. Memorial Hospital, 377 Ill. App. 3d 895, 912 (2007). A. Whether This Case is Justiciable The district first contends that this case is not justiciable because it requires the court to resolve two competing legislative determinations. The district first correctly points out that a

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No. 2--08--0593 municipality has no general authority to condemn public land and that a municipality may take public land only when a statute expressly authorizes it. City of East Peoria v. Group Five Development Co., 87 Ill. 2d 42, 45 (1981). As we discuss later, however, that express grant of power is found in section 11--61--2 of the Code (65 ILCS 5/11--61--2 (West 2004)). The district continues that, in a normal eminent domain action where the condemnee is not a governmental body, the condemnor's determination that the taking is necessary establishes a prima facie case of authority and need. Trustees of Schools of Township No. 37 v. First National Bank of Blue Island, 49 Ill. 2d 408, 414 (1971). It notes that such a legislative determination is presumed to be valid and that the party challenging the enactment bears the burden of rebutting the presumption. City of Chicago v. Pooh Bah Enterprises, Inc., 224 Ill. 2d 390, 406 (2006); Poole v. City of Kankakee, 406 Ill. 521, 533 (1950). The district further points out that, in addition to the village's ordinance initiating the condemnation, the district passed a presumptively valid and competing resolution. The district then argues that the court system now faces a situation where it is required to choose between two competing legislative enactments and to choose which public need is greater. It contends that the trial court essentially sided with the village and determined that the village's needs were more compelling than those of the district. This issue, according to the district, is a political question beyond the power of the judiciary. Further, the district asserts, as there is no justiciable controversy, subject-matter jurisdiction is lacking. People v. Capitol News, Inc., 137 Ill. 2d 162, 16970 (1990). We disagree. The political-question doctrine is a recognition of the separation of powers between the various branches of our system of governance. Roti v. Washington, 148 Ill. App. 3d 1006, 1009 (1986), quoting Baker v. Carr, 369 U.S. 186, 210, 7 L. Ed. 2d 663, 682, 82 S. Ct. 691, 706 (1962).

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No. 2--08--0593 Questions that " 'lack of satisfactory criteria for a judicial determination' " and for which it is appropriate to attribute " 'finality to the action of the political departments' " are beyond the jurisdiction of the judicial branch. Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 28 (1996), quoting Baker, 369 U.S. at 210, 7 L. Ed. 2d at 682, 82 S. Ct. at 706. Neither criterion applies in the instant case. This case is governed by section 11--61--2 of the Code (65 ILCS 5/11--61--2 (West 2004)), which provides: "The corporate authorities of each municipality may vacate, lay out, establish, open, alter, widen, extend, grade, pave, or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks, and public grounds; and for these purposes or uses, to take real property or portions thereof belonging to the taking municipality, or to counties, school districts, boards of education, sanitary districts or sanitary district trustees, forest preserve districts or forest preserve district commissioners, and park districts or park commissioners, even though the property is already devoted to a public use, when the taking 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 (West 2004). Thus, there are clear criteria for the court to utilize to resolve this case. Specifically, the court must determine whether the property is committed to a public use and whether the taking will materially impair an existing use or be detrimental to the public. See 65 ILCS 5/11--61--2 (West 2004). Moreover, the legislature enacted this statute, thereby creating these criteria. Since the legislature has directed us regarding how to resolve this issue, it is difficult to discern, so long as we follow the statute, how our resolving this dispute would impermissibly intrude into the realm of the

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No. 2--08--0593 legislature. In other words, since the legislature has set forth criteria for resolving future disputes, its actions are not of a final nature. Further, contrary to the district's suggestion, there is no occasion for us to defer to the legislative enactments of the units of local government involved in this case. Units of local government are creatures of the legislature. See La Salle National Trust, N.A. v. Village of Mettawa, 249 Ill. App. 3d 550, 575 (1993) ("It is universally recognized that municipal corporations are creatures of the State and that, absent constitutional restraints, municipal corporations are subject to the will and discretion of the legislature"). With the exception of home rule, the authority of units of local government is dependent "upon the legislature, and, without a grant of power, the local government could not act." Groenings v. City of St. Charles, 215 Ill. App. 3d 295, 303 (1991). In fact, our state's constitution expressly provides that school districts "shall have only powers granted by law." Ill. Const. 1970, art. VII,

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