BBP Wins Another Du Page Eminent Domain Case

October 9, 2015


      In eminent domain law, few tasks are more difficult for a jury than calculating the amount of “damages to the remainder.”  Often the jury has to deal with competing testimony from experts on both sides offering vastly different views on how much the taking will affect the remainder of the property beyond the value of the land and structures taken by the government.  Mere speculation must be discounted.

     A DuPage County jury lived up to this challenge on October 9, 2015, finding in favor of the Illinois Department of Transportation (“IDOT”) in a dispute with a corporate landowner over the fair market value of property needed for a highway improvement project.

     The 11.7-acre parcel at issue, located at North Aurora Ave. and Route 59 in Naperville, included a gas station/car wash, a convenience store, an oil change facility, a retail strip mall, and associated parking lots.  At issue was the extent of damages caused by two reductions in the setback from the right of way from 20 feet and 10 feet in, respectively, before the taking to five feet in after the taking.  As part of this reduction in the setback, several improvements on the property also would become non-conforming with the Naperville zoning requirements. 

     Finding no significant damages beyond the cost to cure for the movement of certain improvements, IDOT’s appraisers estimated the damages to be roughly $80,000.  The owner’s appraiser, however, concluded the damages would be substantially higher at nearly $1.2 million due to the loss of future adaptability that would arise if Naperville were to require future additions or modifications to the improvements on the property to conform to the zoning setbacks. IDOT’s appraisers, however, countered by showing that Naperville had an established history of being flexible in allowing non-conformities to exist, or granting variances, for any improvements short of a total redevelopment of the whole property.

     Finding the testimony of IDOT’s appraisers to be more persuasive than that of the owner’s appraiser, the jury awarded $108,000 to the property owner for damages.  The verdict represented an amount 90 percent lower than the owner-appraiser’s opinion of the damages to remainder while coming in much closer to IDOT’s valuation.  In addition, the jury found the value of the property taken by IDOT ($393,345) to be consistent with the opinions of IDOT’s appraisers ($355-389,000) rather than the owner’s appraiser, Michael MaRous ($460,000).

     “It was evident from the verdict that the jury did an excellent job of weighing the credibility of the expert witnesses presented by both sides,” said Burke Burns & Pinelli, Ltd., partner Vincent D. Pinelli, who tried the case with BBP associate Christopher J. Hales.  “We selected an attentive group who absorbed the nuances of appraisals and engineering issues absent any experience in either field.”

     The case, IDOT v. Ronald Benderson, et al., 11-ED-57, was heard before Judge Kenneth Popejoy in the Circuit Court of DuPage County from October 5-9, 2015.

     For Pinelli and Hales, who represent IDOT as Special Assistant Attorneys General, it is not the first time they have prevailed on a complex damage-to-remainder jury trial.  In July 2014, they successfully represented IDOT in the case of IDOT v. Chicago Title and Trust Co., a case involving similar damage to remainder claims for the same highway project.  They also  successfully represented IDOT in IDOT v. V-6 Corp., et al., in February 2015 in a case involving valuation of a parcel of land in McHenry County that had been used for a gas station/auto repair shop.  In that case, the jury returned a verdict that was more than $600,000 below the owner’s valuation opinions and required the Defendants to refund $290,000 to IDOT from the preliminary just compensation award.