Department of Public Works and Bldgs. v. Rogers

• Decision Date: 29 December 1966
• Docket Number: Gen. No. 66--4
• Citation: 78 Ill.App.2d 141,223 N.E.2d 177
• Parties: The DEPARTMENT OF PUBLIC WORKS AND BUILDINGS of the State of Illinois, Appellee, v. Herbert M. ROGERS et al. Appeal of CITY NATIONAL BANK AND TRUST COMPANY OF CHICAGO, Trustee under the Last Will and Testament of George Pierantoni, deceased, and Lillian Pierantoni Nannini, beneficiary under said Trust.
• Court: United States Appellate Court of Illinois

Page 177

223 N.E.2d 177

78 Ill.App.2d 141

The DEPARTMENT OF PUBLIC WORKS AND BUILDINGS of the State of

Illinois, Appellee, v. Herbert M. ROGERS et al.

Appeal of CITY NATIONAL BANK AND TRUST COMPANY OF CHICAGO,

Trustee under the Last Will and Testament of

George Pierantoni, deceased, and Lillian

Pierantoni Nannini,

beneficiary under said Trust.

Gen. No. 66--4.

Appellate Court of Illinois, Second District.

Dec. 29, 1966.

Rehearing Denied Feb. 15, 1967.

Snyder, Clarke, Dalziel, Holmquist & Johnson, Waukegan, for appellants.

Donald T. Morrison, Sp. Asst. Atty. Gen., Waukegan, William G. Clark, Atty. Gen., Chicago, for appellee.

ATTEN, Justice.

This is a condemnation proceeding under the Eminent Domain Act of Illinois, (Chapter 47, Sec. 1 et seq., Ill.Rev.Stats., 1965) to acquire a one acre tract of vacant land at the corner of Berkeley Road and Skokie Highway in the City of Highland Park, Lake County, Illinois, for the purpose of constructing a separated, grade intersection at Deerfield Road and Skokie Highway (U S Route 41), wherein the jury awarded appellant $17,500.00.

A jury trial was held on the issue of compensation. The jury viewed the premises. The subject property was taken in its entirety. The low testimony as to value was $13,350 and the high testimony was $82,500. The low value was applied to the property as zoned for residential purposes and the high value was placed on the property, if said property could have been used for a gasoline service station, which would have required a change in zoning. Appellants' theory was that there was a strong probability that the property could be zoned for gasoline service station purposes.

The sole issues presented to this Court by the appellants is the propriety of the rulings of the trial court in (1) excluding the testimony of one Paul Behanna, an attorney with 35 years experience, who in the offer of proof taken out of the presence of the jury, would have testified that from his experience there was a strong probability of obtaining a rezoning of the property in question, and (2) a special ordinance passed by the City of Highland Park evidencing a variance from the residential zoning classification to a shopping center classification of approximately 50 acres of land located some 1000 feet north of the property in question on Skokie Highway and on the same side of said highway.

The law of eminent domain allows the owner of property condemned for public use to be compensated by valuing his property at the highest and best use to which the property is presently adapted. Housing Authority of City of East St. Louis v. Kosydor, 17 Ill.2d 602, 162 N.E.2d 357 (1959); City of Chicago v. Equitable Life Assur. Soc., 8 Ill.2d 341, 345, 134 N.E.2d 296 (1956). We held in the case of Park Dist. of Highland Park v. Becker, 60 Ill.App.2d 463, 468, 208 N.E.2d 621 (1965), that the reasonable probability of rezoning in the near future can be taken into consideration in a determination of just compensation.

With reference to the first assignment of error, the evidence shows that the witness, Paul C. Behanna, was a lawyer with some 35 years of practice dealing in main with litigation involving zoning, eminent domain and real estate. He had drafted the ordinance involved in this litigation as Corporation Counsel for the City of Highland Park. He served for 16 years as a Corporation Counsel of that City, handling all zoning variations and amendments to the zoning code, as well as all litigation resulting from it. In addition he was fully familiar with all zoning on both sides of U S 41 and on property across the highway from the property taken, as well as other property on the highway including a filling station on the east side of U S 41, three-quarters of a mile north of the property taken. After being qualified as an expert on zoning, appellants offered to prove by this witness that in his opinion there was a strong probability that the property would be zoned for a gasoline station. We believe that the Court did not abuse its discretion in excluding this witness's opinion...