No. 3-03-0282

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE LYTTON delivered the opinion of the court:

The Illinois Department of Transportation (IDOT) filed acomplaint for condemnation against Mary Kelley, as Trustee under aland trust, to acquire 1.047 acres of land for the purpose ofwidening an intersection in Plainfield. Defendants' two appraisersvalued different portions of land separately, claiming that thecondemned acreage should not be subject to the unit rule ofvaluation. IDOT filed two pretrial motions to bar their testimony,claiming that their appraisal methods violated the unit rule. Thecourt denied the motions. Plaintiff filed a motion forcertification of questions under Supreme Court Rule 308, which thecourt allowed. We answer the certified questions and remand,finding that dividing indistinct portions of the whole violates theunit rule of valuation.

I. FACTS

IDOT filed a complaint against the defendant land trust tocondemn part of the land pursuant to the "[Fiscal Year] 2000Highway Improvement Project." IDOT intended to take a 1.047 acreportion of the 289 acre land trust to widen the intersection ofRoute 59 and 127th Street in Plainfield. The land trust includes ahome valued at over $1,000,000 and a second farm residence. Theremainder of the property includes farmland and a small segment ofwetland along the DuPage River.

The court held a quick take hearing to determine a preliminaryvaluation. IDOT's appraiser argued that the entire parcel's highestand best use was mixed-use development. He regarded the whole to bethe entire 289 acres owned by the trust. Defendants' appraiser,Arthur Sheridan, used the "sales comparison approach," in which heassigned different square foot values to areas of the property thathad different highest and best uses. Sheridan assigned a highervalue to the area from which IDOT was taking the property because,in his opinion, it had commercial potential and was more valuablethan the other areas. He did not combine the different values intothe whole property. The trial court found the preliminary valuationequal to the amount determined by IDOT's expert.

Defendants then retained a second expert, Andre Brorsen. Inhis appraisal, Brorsen divided the 289 acre parcel and determinedwhat he considered the most commercially viable 80 acres to be thewhole of the property.

IDOT filed a motion for a judicial determination of whatconstituted the whole property, arguing that Brorsen was violatingthe "unit rule" of valuation in his appraisal. The trial courtagreed with IDOT and held that the whole property included theentire 289 acres. Defendants then moved for leave to amendBrorsen's appraisal based on the judicial determination. The courtgranted the motion.

Brorsen then filed a second appraisal in which he divided the289 acre whole into separate parts according to what he termedthree "zones of use:" (1) an 80 acre zone of commercial use, (2) a201 acre zone of residential subdivision use, and (3) a 10 acrezone of residential estate use. Each discrete zone then had its ownvalue and never became part of the whole. Brorsen claimed thatmodern appraisal and development trends supported this type ofdividing the whole.

IDOT filed a motion to bar Brorsen and Sheridan fromtestifying, claiming that their appraisals violated the unit ruleof valuation. The trial court denied the motion. IDOT filed a Rule308(a) motion for interlocutory appeal, and the court certified twoquestions for our review. Both questions present the same generalissue: in a partial taking eminent domain action, does the unitrule of valuation prohibit appraisers from valuing portions of thewhole differently and separately from the whole?⁽¹⁾ We believe theunit rule generally prohibits such valuations, except when theproperty has clearly delineated different highest and best uses.

ANALYSIS

The fifth amendment to the United States Constitution providesthat private property shall not be "taken for public use, withoutjust compensation." U.S. Const., amend. V. Similarly, our Stateconstitution provides that "private property shall not be taken ordamaged for public use without just compensation as provided bylaw." Ill. Const. 1970, art. I,