Department of Transportation v. Sunnyside Partnership, L.P.

Case Date: 02/20/2003
Court: 5th District Appellate
Docket No: 5-02-0434 Rel

               NOTICE
Decision filed 02/20/03.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-02-0434

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


THE DEPARTMENT OF TRANSPORTATION,

     Plaintiff-Appellee,

v.

THE SUNNYSIDE PARTNERSHIP, L.P.,

     Defendant-Appellant.

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Appeal from the
Circuit Court of
Madison County.

No. 02-ED-3

Honorable
Ralph J. Mendelsohn,
Judge, presiding.


 

JUSTICE KUEHN delivered the opinion of the court:

By Supreme Court Rule 307(a)(7) (166 Ill. 2d R. 307(a)(7)), The SunnysidePartnership, L.P. (Sunnyside), files this interlocutory appeal as of right from the trial court'sJune 7, 2002, order finding that the Illinois Department of Transportation (IDOT) has theauthority to exercise the right of eminent domain over property owned by Sunnyside, thatSunnyside's property is subject to IDOT's exercise of eminent domain, and that IDOT is notimproperly exercising its right of eminent domain. We affirm.

FACTS

Sunnyside owns an 80-acre nursery in Glen Carbon, Illinois. The nursery has beenin the Foucek family for approximately 60 years. The nursery is located just west ofHighway 159-a road that runs in a north-south direction in that area. The land has beenfarmed for more than 200 years. In recent years, the area surrounding the nursery hasbecome rather extensively, commercially developed.

For 40 years, there has been discussion about possible road construction across aportion of the nursery. IDOT's initial conception was a project labeled the "South Bypass." That bypass would not have stopped at Highway 159 but would have gone some miles pastit. The bypass project contemplated taking the same nursery land sought in this case. Environmental studies were conducted, and much land was obtained by purchase, althoughthe nursery land was not included in what was purchased. However, funding for the projectnever fully materialized, and IDOT abandoned its bypass plans.

Highway 159 is a state highway that, in part, traverses Glen Carbon andEdwardsville. That corridor has been the sight of incredible expansion in recent years. Thatgrowth has resulted in renewed interest in road projects in the area. During 1995 and 1996,IDOT decided that it was necessary to relocate Highway 159 to the west, running parallelto the existing Highway 159. This relocation was deemed necessary to ease trafficcongestion. The relocated Highway 159 will abut the west side of the Sunnyside nursery.

The relocation plans include four roads that will connect old Highway 159 with newHighway 159. One of these roads, Center Grove Road, is located approximately 2,000 feetsouth of the nursery property at issue in this case. Early in its highway relocation planning,IDOT investigated the possibility of constructing an additional connector road-called the"East-West Connector." Several options were considered, studied, and rejected. Finally,IDOT settled upon a location that ran between the nursery and land owned by MadisonCounty. This property line alignment became known as the "Kmart alignment," because ofits alignment with the entrance to a Kmart shopping center on the opposite side of oldHighway 159. IDOT sought and obtained design approval for this Kmart alignment.

While IDOT felt that the decision was complete, Madison County and the City ofEdwardsville maintained larger-scale plans for this connector road. They wanted to resurrectthe bypass option originally contemplated 40 years ago. Constructing a bypass would alsogreatly serve to alleviate traffic congestion. They met with IDOT officials and sought tohave this alignment road constructed in the location originally considered for the bypass,south of the proposed Kmart alignment and directly through the nursery property. TheMadison County property would not abut or otherwise have direct access to this newlyproposed connector road.

IDOT was willing to be involved with this project but did not want the projectidentified as a bypass. IDOT's agreement was related to a connector road and not a fullbypass. The foundation for IDOT's concern is unknown. Perhaps IDOT's trepidation wasgrounded in the fact that its environmental studies were now 40 years old and would haveto be completely redone in order for IDOT to participate in the bypass project. PerhapsIDOT lacked the funding to fully participate in the bypass project. We do not know thereason, but we do know that IDOT required the omission of the word "bypass" fromdocumentation relative to this connector road. IDOT required written concurrencesregarding the project change. IDOT needed concurrences from the Village of Glen Carbonand the City of Edwardsville, as well as from Madison County. All three entities expressedtheir concurrences with reference to the bypass project. IDOT asked all three entities torewrite the concurrences and omit the word "bypass" and substitute the word "connector." All three entities resubmitted revised concurrences in keeping with IDOT's wishes.

While Madison County and the City of Edwardsville desired this major change in theIDOT project, neither the county nor the city had legislatively granted quick-take power, andso neither of them could have taken the property from Sunnyside if Sunnyside was unwillingto sell. IDOT did have quick-take authority. Sunnyside was unwilling to sell. IDOT wasforced to exercise its quick-take power.

By agreement, after IDOT completes the construction of this connector road, IDOTwill turn the road over to the county so that Madison County remains responsible for allnecessary maintenance. Testimony adduced at the hearing explained that transferring theroad to county control made sense in light of the fact that the remainder of the bypassproject, after completion, would be owned and maintained by Madison County.

The Madison County land that would have been impacted by the Kmart alignmentwill now be isolated from the connector-road project. After IDOT finalized its plans tomove the connector road from the Kmart alignment to the location through the Sunnysidenursery, the City of Edwardsville and Madison County teamed up in an intergovernmentalagreement to market and sell this property to private real estate developers.

On February 14, 2002, IDOT filed its complaint for condemnation. On March 1,2002, IDOT also filed a quick-take motion seeking the immediate vesting of title to theproperty. IDOT filed an essentially identical motion on March 12, 2002. On March 7, 2002,Sunnyside filed a traverse and motion to dismiss raising numerous issues. Those issues weretaken up by the court at the quick-take hearing, which began on May 28, 2002. Ninewitnesses, including representatives of IDOT, Madison County, the City of Edwardsville,and the Village of Glen Carbon, as well as Joanne Foucek, Sunnyside's sole living partner,testified at the hearing. On June 7, 2002, the circuit court denied Sunnyside's motion, foundthat IDOT had the authority to take the nursery property, and concluded that IDOT hadproperly exercised its authority.

Sunnyside appealed this order and sought a stay of proceedings in the circuit court. The circuit court denied Sunnyside's motion. Sunnyside then asked this court to stay theproceedings. We granted that motion on July 24, 2002.

EMINENT DOMAIN AND QUICK-TAKE LAW IN GENERAL

Eminent domain is a term that refers to the state's power to take private property. Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 304Ill. App. 3d 542, 546, 710 N.E.2d 896, 899 (1999) (citing E. Meidinger, The "Public Uses"of Eminent Domain: History & Policy, 11 Envtl. L. 1, 2 (1980)), aff'd, 199 Ill. 2d 225, 768N.E.2d 1 (2002). Our state and federal constitutions prohibit the taking of private propertyfor public use without just compensation. Ill. Const. 1970, art. I,