BBP Prevails in Eminent Domain Case

In a significant victory for a public agency, a DuPage County jury found 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 the Route 59 highway reconstruction and remodeling 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).

Burke Burns & Pinelli, Ltd., partner Vincent D. Pinelli represented IDOT in the case, along with associate Christopher J. Hales.

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.

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