BBP Prevails in DuPage Co. Eminent Domain Case

Computing the value of damages to the remainder in an eminent domain taking can be a difficult task for a jury. The jury has to come up with a fair solution, based on the competing testimony of experts while discounting any excessive speculation on the part of those experts.

A Du Page County jury illustrated this principle on July 30, 2014, siding squarely in favor of the Illinois Department of Transportation (“IDOT”) in a dispute with a bank trustee over the fair market value of property needed for a highway improvement project.

The 1.7-acre parcel at issue, located off Route 59 in Naperville, included two retail/commercial buildings, an asphalt parking lot for 119 cars and business signs. At issue was the extent of damages caused by a reduction to the setback from the right of way from 20 feet in before the taking to two feet in after the taking. As part of this reduction in the setback, a business sign on the property also would become non-conforming.

Conceding that the taking did affect the usefulness of the business sign because of its new proximity to the right of way, IDOT’s appraisers estimated the damages to be in the range of $7,500 to $9,000. The owner’s appraiser, however, concluded the damages would be substantially higher at $124,000 because of “possible” impacts to the parking lot as well as the business sign. Specifically, the owner’s appraiser testified that the owner would face increased risk of damages to cars in the parking lot and might have to remove up to 19 parking spaces if Naperville were ever to renege on its pledge to suspend enforcement of sign setback for all businesses affected by the Route 59 project.

Finding the testimony of IDOT’s appraisers to be more persuasive than that of the owner’s appraiser, the jury awarded only $19,000 to the property owner for damages. The verdict represented an amount 85 percent lower than the owner-appraiser’s opinion of the damages to remainder ($124,000) while coming in much closer to IDOT’s valuation ($9,000). In addition, the jury found the value of the property taken by IDOT ($76,000) to be consistent with the opinions of IDOT’s appraisers ($70-80,000) rather than the owner’s appraiser ($106,000).

“In speaking with the jurors afterward, it was evident that IDOT’s witnesses were able to present the appraisal issues in a way that they could understand, even though none of the jurors had any experience with appraisals of commercial properties.” said Burke Burns & Pinelli, Ltd., partner Vincent D. Pinelli, who tried the case with BBP associate Christopher J. Hales.

The case, IDOT v. Chicago Title and Trust Co., 11-ED-29, was heard before Judge Kenneth Popejoy in the Circuit Court of DuPage County.

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 October, 2013, they successfully represented IDOT in the case of IDOT v. V-6 Corp., et al., 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 over a half a million dollars ($500,000) below the owner’s valuation opinions.