Davis v. Brown

• Decision Date: 13 April 2005
• Docket Number: No. 2-04-0397.,2-04-0397.
• Citation: 827 N.E.2d 508,292 Ill.Dec. 979,357 Ill. App.3d 176
• Parties: Marvel DAVIS, Jeff Holland, Phyllis Pierson, Steve Michael, Virginia Souders, Roger and Blanca Souders, Menachem and Omarjorie Ardon, Bruce Riemenschneider, Douglas Zeifheit and Norma Zeifheit, Rojean Gum, Clarence R. Michael, Burton and Lois Scott, Byron and Roberta Scott, Royce and Marilyn Thompson, Harry Schoger, James J. and Roseann Buhle, Kathryn A. Weiss, Ruth A. Lawson, Daniel W. McKinney, Leonard Hansen, Ronald H. Nauman, Harold W. Marti, Bruce C. Devick, Lois Weeks, Chester Scott, The Poor Clares of Joliet, The Wayne Peacock Family Trust, Joseph J. Ritchie, Charles Anzelel, Jr., Lonna Moellering (Boyce Farm), Bruce C. and Shirley L. Thompson, Charlene J. Davis, Ann L. Breen, Jeanene Sipos, Priscilla and Kenneth W. Jorstad, Ellen Bolte, Austin S. Weeks, Vera A. Long, Gerald R. Long, Douglass H. Long, Rebecca L. Aldrich, Kirk Friestad, Jesse Dale, Carole Monson, Nancy McCarthy, The Heap Family Partnership, and Mary Moss, Plaintiffs-Appellants, v. Kirk BROWN and The Department of Transportation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

827 N.E.2d 508

357 Ill. App.3d 176

292 Ill.Dec. 979

Marvel DAVIS, Jeff Holland, Phyllis Pierson, Steve Michael, Virginia Souders, Roger and Blanca Souders, Menachem and Omarjorie Ardon, Bruce Riemenschneider, Douglas Zeifheit and Norma Zeifheit, Rojean Gum, Clarence R. Michael, Burton and Lois Scott, Byron and Roberta Scott, Royce and Marilyn Thompson, Harry Schoger, James J. and Roseann Buhle, Kathryn A. Weiss, Ruth A. Lawson, Daniel W. McKinney, Leonard Hansen, Ronald H. Nauman, Harold W. Marti, Bruce C. Devick, Lois Weeks, Chester Scott, The Poor Clares of Joliet, The Wayne Peacock Family Trust, Joseph J. Ritchie, Charles Anzelel, Jr., Lonna Moellering (Boyce Farm), Bruce C. and Shirley L. Thompson, Charlene J. Davis, Ann L. Breen, Jeanene Sipos, Priscilla and Kenneth W. Jorstad, Ellen Bolte, Austin S. Weeks, Vera A. Long, Gerald R. Long, Douglass H. Long, Rebecca L. Aldrich, Kirk Friestad, Jesse Dale, Carole Monson, Nancy McCarthy, The Heap Family Partnership, and Mary Moss, Plaintiffs-Appellants, v. Kirk BROWN and The Department of Transportation, Defendants-Appellees.

No. 2-04-0397.

Appellate Court of Illinois, Second District.

April 13, 2005.

Timothy P. Dwyer, Law Office of Timothy P. Dwyer, St. Charles, for Rebecca L. Aldrich, Charles Anzelel, Jr., Menachem Ardon, Omarjorie Ardon, Ellen Bolte, Ann L. Breen, James J. Buhle, Roseann Buhle, Jesse Dale, Charlene J. Davis, Marvel Davis, Bruce C. Devick, Kirk Friestad, Rojean Gum, Leonard Hansen, Jeff Holland, Kenneth W. Jorstad, Priscilla Jorstad, Ruth A. Lawson, Douglass H. Long, Gerald R. Long, Vera A. Long, Harold W. Marti, Nancy McCarthy, Daniel W. McKinney, Clarence R. Michael, Steve Michael, Lonna Moellering (Boyce Farm), Carole Monson, Mary Moss, Ronald H. Nauman, Phyllis Pierson, Bruce Riemenschneider, Joseph J. Ritchie, Harry Schoger, Burton Scott, Byron Scott, Chester Scott, Lois Scott, Roberta Scott, Jeanene Sipos, Blanca Souders, Roger Souders, Virginia Souders, The Heap Family Partnership, The Poor Clares of Joliet, The Wayne Peacock Family Trust, Bruce C. Thompson, Marilyn Thompson, Royce Thompson, Shirley L. Thompson, Austin S. Weeks, Lois Weeks, Kathryn A. Weiss, Douglas Zeifheit and Norma Zeifheit.

Lisa Madigan, Attorney General, Gary S. Feinerman, Solicitor General, Carl J. Elitz, Assistant Attorney General, Chicago, for Kirk Brown, Illinois Department of Transportation and Timothy Martin, Current Director.

Presiding Justice O'MALLEY delivered the opinion of the court:

Plaintiffs appeal the order of the circuit court of Kendall County dismissing their declaratory judgment action against defendants, Kirk Brown and the Illinois Department of Transportation (Department). In their second amended complaint, plaintiffs sought to have section 4-510 of the Illinois Highway Code (Highway Code) (605 ILCS 5/4-510 (West 2002)) declared unconstitutional as improperly taking or interfering with plaintiffs' property without just compensation or due process of law. The trial court dismissed plaintiffs' complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2002)), holding that it failed to state a claim. On appeal, plaintiffs contend that their second amended complaint for declaratory relief properly stated a claim sufficient to avoid dismissal under section 2-615 of the Code; substantively, plaintiffs contend that section 4-510 of the Highway Code violates due process by allowing the State to effect a taking of plaintiffs' property without just compensation. We affirm.

To provide an understanding of the issues raised by plaintiff, we first turn to the language of the provision at issue. Section 4-510 of the Highway Code provides:

"The Department may establish presently the approximate locations and widths of rights of way for future additions to the State highway system to inform the public and prevent costly and conflicting development of the land involved.

The Department shall hold a public hearing whenever approximate locations and widths of rights of way for future highway additions are to be established. The hearing shall be held in or near the county or counties where the land to be used is located and notice of the hearing shall be published in a newspaper or newspapers of general circulation in the county or counties involved. Any interested person or his representative may be heard. The Department shall evaluate the testimony given at the hearing.

The Department shall make a survey and prepare a map showing the location and approximate widths of the rights of way needed for future additions to the highway system. The map shall show existing highways in the area involved and the property lines and owners of record of all land that will be needed for the future additions and all other pertinent information. Approval of the map with any changes resulting from the hearing shall be indicated in the record of the hearing and a notice of the approval and a copy of the map shall be filed in the office of the recorder for all counties in which the land needed for future additions is located.

Public notice of the approval and filing shall be given in newspapers of general circulation in all counties where the land is located and shall be served by registered mail within 60 days thereafter on all owners of record of the land needed for future additions.

* * *

After the map is filed and notice thereof given to the owners of record of the land needed for future additions, no one shall incur development costs or place improvements in, upon or under the land involved nor rebuild, alter or add to any existing structure without first giving 60 days notice by registered mail to the Department. This prohibition shall not apply to any normal or emergency repairs to existing structures. The Department shall have 45 days after receipt of that notice to inform the owner of the Department's intention to acquire the land involved; after which, it shall have the additional time of 120 days to acquire such land by purchase or to initiate action to acquire said land through the exercise of the right of eminent domain. When the right of way is acquired by the State no damages shall be allowed for any construction, alteration or addition in violation of this Section unless the Department has failed to acquire the land by purchase or has abandoned an eminent domain proceeding initiated pursuant to the provisions of this paragraph.

Any right of way needed for additions to the highway system may be acquired at any time by the State or by the county or municipality in which it is located. The time of determination of the value of the property to be taken under this Section for additions to the highway system shall be the date of the actual taking, if the property is acquired by purchase, or the date of the filing of a complaint for condemnation, if the property is acquired through the exercise of the right of eminent domain, rather than the date when the map of the proposed right-of-way was filed of record. The rate of compensation to be paid for farm land acquired hereunder by the exercise of the right of eminent domain shall be in accordance with Section 4-501 of this Code [(605 ILCS 5/4-501 (West 2002))]." 605 ILCS 5/4-510 (West 2002).

In September 2002, plaintiffs filed their original complaint for declaratory relief. Following dismissal of that complaint and their amended complaint for declaratory relief, plaintiffs filed their second amended complaint for declaratory relief. In this complaint, plaintiffs alleged that, in March 1999, defendants began a feasibility study pertaining to constructing a roadway to connect Interstates 80 and 88 in Kane, Kendall, and Grundy Counties. Defendants complied with the requirements of the Highway Code, holding a public hearing in December 2001 regarding the corridor the new roadway was to occupy. On July 31, 2002, defendants recorded a map showing the proposed roadway, pursuant to the requirements of section 4-510 of the Highway Code. Plaintiffs alleged that, before the map was finally created and recorded, defendants failed to carry out any needs analysis regarding whether the properties through which the proposed roadway was to travel needed to be condemned or purchased. Further, defendants repeatedly acknowledged that they did not know if the proposed road would be necessary in the future.

At some time after the December 2001 public hearing, but before the map was finalized and recorded, defendants changed the location of the planned roadway, adding 61 new properties to those that would be affected by the proposed road. Plaintiffs alleged that section 4-510 of the Highway Code prohibited them from developing or using their properties, essentially granting to the State an option to condemn by virtue of the provision requiring an owner to contact defendants first before initiating any development or use of the property affected by the reservation map. Moreover, plaintiffs specifically alleged that Marvel Davis and Rojean Gum had abandoned plans to construct improvements on their properties in light of the possibility that defendants would seek to condemn their properties upon notification.

Plaintiffs raised three counts in their second amended complaint. The first count alleged that section 4-510 violated due process in that it did not require that defendants make a determination that the land is necessary for the public good and, instead, granted an option to defendants to condemn the land at some indeterminate time in the future and gave no compensation for this option to any plaintiffs. Count II alleged that section 4-510 of the Highway Code violated the separation of powers by eliminating the requirement of a finding of necessity before land is earmarked for use in a proposed roadway and thus improperly infringing on the judicial interpretation of the constitutional requirements necessary for the State to exercise its right of eminent domain. In count III, plaintiffs alleged...