Forest Preserve District v. First National Bank ( 2011 )

ILLINOIS OFFICIAL REPORTS
Supreme Court
Forest Preserve District v. First National Bank of Franklin Park, 2011 IL 110759Caption in Supreme THE FOREST PRESERVE DISTRICT OF Du PAGE COUNTY,
Court: Appellant, v. FIRST NATIONAL BANK OF FRANKLIN PARK et al.,
Appellees (The State of Illinois ex rel. Lisa Madigan, Intervenor-
Appellant).
Docket Nos. 110759, 110760 cons.
Filed December 1, 2011
Rehearing denied January 23, 2012
Held A condemnation action which, pursuant to statute, evaluated the property
(Note: This syllabus in 2007 as of the complaint’s 1999 filing date was remanded to determine
constitutes no part of if there had been a value increase, and if so, for a jury trial as to current
the opinion of the court fair market value–fifth amendment.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Appellate Court for the Second District; heard in that
Review court on appeal from the Circuit Court of Du Page County, the Hon.
Stephen J. Culliton, Judge, presiding.
Judgment Appellate court judgment affirmed; cause remanded.
Counsel on Scott M. Day and Rachel K. Robert, of Day & Robert, of Naperville
Appeal (Robert G. Black, of counsel), for appellant.
Lisa Madigan, Attorney General, of Springfield (Jane Elinor Notz,
Deputy Solicitor General, and Richard S. Huszagh, Assistant Attorney
General, of Chicago, of counsel), for intervenor-appellant.
James M. Wagner, Mary Elizabeth Damitio and Patrick J. Kelly, of Helm
& Wagner, of Naperville, for appellees.
Justices JUSTICE THOMAS delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, Burke,
and Theis concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, the Forest Preserve District of Du Page County (the District), filed a
condemnation action against defendants on December 21, 1999. At that time, section 7-121
of the Eminent Domain Act provided that the date of filing the complaint was to be
considered the valuation date for purposes of determining just compensation. See 735 ILCS
5/7-121 (West 1998). At a trial held December 12, 2007, nearly eight years after the case was
filed, a jury determined that the fair market value of the property on December 21, 1999, was
$10.725 million. The circuit court entered judgment on the jury’s award for that amount. The
appellate court affirmed in part, but vacated the jury’s verdict as to the value of the property
and remanded for further proceedings to determine if the current value of the property is
materially different from the amount of the jury’s verdict so that it could be said that the
verdict does not reflect just compensation as of the actual date of taking. 401 Ill. App. 3d
966, 1005-06.
¶2 Before this court, the parties raise the following questions: (1) whether the date of
“taking” is considered the date of valuation listed by statute or instead the date that a plaintiff
is given title and the right to possess the property; (2) whether the fifth amendment as
interpreted by the United States Supreme Court in Kirby Forest Industries, Inc. v. United
States, 467 U.S. 1 (1984), requires a remand under the circumstances of the present case to
determine if the value of the property has materially changed despite the traditional date-of-
filing rule of valuation applied in Illinois; (3) whether defendants forfeited their right to argue
that they were denied just compensation where they did not file a “speedy trial demand” at
the outset of the litigation and a significant delay subsequently ensued between the time of
the filing of the complaint and the condemnation trial; (4) whether defendants forfeited their
right to claim a lack of just compensation in reliance upon Kirby by failing to argue prior to
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trial that the jury should be instructed to base its assessment on a more current date of
valuation; (5) whether the appellate court erred in ruling that the District could abandon the
condemnation case on remand if it chose; and (6) whether the District failed to negotiate in
good faith prior to filing its condemnation complaint.
¶3 BACKGROUND
¶4 The facts in this case were thoroughly set forth by the appellate court in its opinion
below. We summarize only those facts necessary for the resolution of the issues before us.
In 1978, Naper Venture, in which defendant Robert Krilich held a dominant interest, applied
for the annexation into Naperville of a 456-acre planned unit development (PUD) to be
called Country Lakes. The PUD was approved as a special use in connection with the
annexation agreement. The PUD contained an existing 150-acre public golf course. Around
the golf course were seven areas that were to be developed as residential areas of varying
density. Area 1 was already developed at the time of the annexation agreement. By December
1999, areas 2 through 5 had been developed or were in the process of being developed. Areas
6 and 7, which consisted of approximately 54 total acres, had not been developed, and the
Summit Development Corporation had a contract pending to purchase these areas (the
Summit parcel) for development.
¶5 In November 1999, the District decided to acquire the 204 acres comprising the golf
course and the Summit parcel. On November 23, 1999, the District’s board of commissioners
approved an ordinance authorizing the District to negotiate acquisition of the property. The
District then sent letters to the two trusts it determined owned the property, offering the
trustees a total of $9.27 million and giving them 10 business days to respond before pursuing
condemnation proceedings. After a meeting between the two sides, the owners, including
Krilich, who was the majority beneficiary under both trusts, rejected the District’s offer, but
did not make a counteroffer.
¶6 The District’s board of commissioners then met on December 7, 1999, and considered
the negotiations for the property. Noting that neither side had made any further offers or
counteroffers since the offer letters on November 23, 1999, the board of commissioners
adopted an ordinance finding an inability to agree, revoking authority to negotiate further,
and authorizing condemnation of the property. The District sent letters to the two trustees and
Summit Development Corporation, enclosing a copy of the December 7 ordinance.
¶7 On December 21, 1999, the District filed a complaint to condemn the property. At the
time the complaint was filed, there was a dispute over ownership of the property and separate
litigation was being conducted to determine ownership. Proceedings in this case were stayed
until October 2001 when the ownership suit was resolved. A further delay ensued when
Krilich and Edward White disputed among themselves about who had a right to control the
defense in the condemnation action. That dispute was finally resolved in Krilich’s favor in
November 2004.
¶8 Once the issues of ownership and control of the litigation were settled, defendants filed
a second amended traverse and a motion to dismiss on March 28, 2005, arguing that the trial
court lacked jurisdiction and that the condemnation complaint should be dismissed for
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several reasons. The parties conducted discovery on the issues raised in the traverse. In
September 2006, the District filed several motions for partial summary judgment relative to
the second amended traverse. One of those motions concerned whether the District had
engaged in good-faith negotiations prior to the filing of the condemnation complaint. On
December 4, 2006, the trial court granted the District’s motions for partial summary
judgment, and on January 9, 2007, the court denied defendant’s second amended traverse and
motion to dismiss.
¶9 The case then proceeded through case management and discovery. Several months prior
to trial, on August 3, 2007, defendants filed a motion asking the trial court to schedule a
posttrial evidentiary hearing under Kirby Forest Industries, Inc. v. United States, 467 U.S.
1 (1984). The motion alleged that the area in which the property is located had substantially
increased in value in the period that had elapsed from the date the condemnation complaint
was filed in 1999. In order to afford defendants their constitutional right to just
compensation, a posttrial hearing under Kirby would be required, they argued, to determine
whether the value of the subject property had materially changed from 1999 until the time
that the amount of the condemnation award is eventually placed on deposit by the District
sometime after trial.
¶ 10 The trial court heard oral argument on the Kirby motion on November 13, 2007.
Defendants’ counsel argued that Illinois has a “system in place that does not allow for just
compensation.” Counsel explained that the statute requires valuation as of the date of filing,
but the constitution provides that just compensation be measured as of the date of the taking,
which is the date that the government chooses to deposit the amount of the jury award.
Counsel argued that Kirby provides a remedy for the problem by allowing for a posttrial
hearing to modify the value awarded if a substantial delay has caused a material change in
the value of the land.
¶ 11 At the conclusion of the hearing, the trial court denied the motion for a Kirby hearing
without taking it under advisement. From the court’s comments and questioning of counsel,
it is clear that the court believed that Kirby should not be applied to Illinois law where there
was no wrongful delay caused by the governmental entity seeking condemnation.
¶ 12 The case was thereafter tried by a jury on December 12, 2007. The jury determined that
the fair market value of the property on December 21, 1999 (the date the condemnation
complaint was filed), was $10.725 million. On December 19, 2007, the trial court entered
judgment on the jury award. However, the trial court did not grant the District the right to
take title and possession of the property. Instead, it only allowed the District to deposit the
amount of the jury award with the Du Page County treasurer in order to toll the statutory
interest due on the award that would accrue from the date of the jury award to the date the
payment was placed on deposit. See 735 ILCS 5/7-108 (West 1998). Noting that “defendants
intend to file various post-trial and appellate court pleadings, inclusive of a motion to stay
the judgment pending appeal,” it found that the District could not take immediate possession
of the property and that the vesting of title would have to await a future order of the court.
On December 20, 2007, the district paid the judgment and interest to the county treasurer,
and those funds have remained on deposit earning interest to defendants since that date.
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¶ 13 Defendants subsequently filed a posttrial motion, which again raised the constitutional
argument that the just compensation clause of the fifth amendment as interpreted in Kirby
required the trial court to hold a hearing to determine the appropriate adjustment to the jury
verdict to accommodate for the increase in value from the valuation date of December 19,
1999, to the date of the deposit of the condemnation award on December 20, 2007. In support
of their motion, defendants attached as an exhibit an appraisal stating that, as of December
20, 2007, the property was worth a minimum of $25.5 million. The trial court denied
defendants’ posttrial motion on May 22, 2008. However, nothing in the record indicates that
the trial court ever ruled that the District could take title and possession to the property, nor
did the court rescind its previous order stating that transfer of title and possession would have
to wait for a future order of the court.
¶ 14 Defendants timely appealed to the appellate court, arguing that the trial court erred in
denying their posttrial motion for a Kirby hearing. They also argued, inter alia, that the trial
court erred in granting the District summary judgment on the issue of whether the District
engaged in good-faith negotiations prior to filing the condemnation complaint.
¶ 15 The appellate court noted that defendants’ appeal of the Kirby issue raised the following
additional issues:
“First, what measure of compensation for the taking of property constitutes ‘just
compensation’ under the fifth amendment? Second, were the defendants denied just
compensation in this case? Third, if the defendants were denied just compensation,
was this the result of their own choices or actions such that the denial does not offend
the constitution? In addition, we asked the parties to submit supplemental briefs on
two other issues: are the recent amendments to the Act applicable in this case, and,
if they are not, is the old version of the statute constitutional as applied?” 401 Ill.
App. 3d at 980-81.
After the appellate court ordered supplemental briefing, defendants served notice on the
Attorney General that they were challenging the constitutionality of section 7-121 of the Act
as applied. The Attorney General was then granted leave to intervene in the appeal and
thereafter filed a brief addressing the supplemental issues.
¶ 16 The appellate court’s decision first addressed the issue of good-faith negotiations and
concluded that the trial court did not err in granting summary judgment in the District’s favor
on that issue. 401 Ill. App. 3d at 976. With respect to the Kirby issue, the court held that a
hearing was required to determine whether “application of section 7-121 did not provide just
compensation in this case.” See 401 Ill. App. 3d at 1004. The appellate court vacated the
jury’s verdict as to the value of the property, subject to a possible reinstatement by the trial
court following a hearing on just compensation on remand. 401 Ill. App. 3d at 1006. It found
that the District remained free to abandon the condemnation proceeding and withdraw its
deposit because the date of taking had not yet occurred. 401 Ill. App. 3d at 1005. It further
found that in setting the valuation date to be used in determining just compensation on
remand, the date of any new trial, rather than the December 20, 2007, date of deposit, will
more closely approximate the date of taking. 401 Ill. App. 3d at 1005.
¶ 17 In resolving the Kirby issue and those related to it, the appellate court began its analysis
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by discussing the development of the Illinois rule that the date of the filing of the
condemnation complaint be used for measuring just compensation. The origins of the rule
can be traced to South Park Commissioners v. Dunlevy, 91 Ill. 49, 53 (1878), and it was
“firmly established” by the time of this court’s 1907 decision in Sanitary District of Chicago
v. Chapin, 226 Ill. 499, 503 (1907). This court last addressed the rule in Trustees of Schools
of Township No. 37 v. First National Bank of Blue Island, 49 Ill. 2d 408, 411 (1971), one
year before the rule was codified in 1972 (Ill. Rev. Stat. 1973, ch. 47, ¶ 9.7).
¶ 18 The appellate court then noted that Blue Island relied upon Chapin and Winkelman v.
City of Chicago, 213 Ill. 360, 364 (1904), as support for the rule that the property taken must
be valued as of the date of filing unless the government is at fault in causing substantial
delay, during which time the value of the land rises substantially. It is only when the
government is wholly at fault that the landowner could obtain relief by either seeking
damages or moving to dismiss the suit so that the government would have to refile if it still
wanted the property, thereby establishing a new valuation date. See 401 Ill. App. 3d at 984-
85 (citing Blue Island, 49 Ill. 2d at 411). The appellate court also noted that Blue Island
suggested that the landowner might have been able to obtain just compensation that included
the four years of delay in the case if he had made a request for a “speedy trial.” But the
appellate court noted that it was unclear what the phrase “speedy trial” request referred to in
the context of a condemnation case. 401 Ill. App. 3d at 996.
¶ 19 The appellate court then found that the fifth amendment, as interpreted in Kirby, required
modification of the “fault-based exception” set forth in Blue Island. See 401 Ill. App. 3d at
987. In addressing when a taking occurs, Kirby held that “because the federal government
retains its right to decide not to acquire land even after a trial setting the amount of just
compensation, the ‘date of taking’ is the date on which the government actually pays the
owner and takes title to the land.” 401 Ill. App. 3d at 986 (citing Kirby, 467 U.S. at 12).
Kirby further held that “ ‘[h]owever reasonable it may be to designate the date of trial as the
date of valuation, if the result of that approach is to provide the owner substantially less than
the fair market value of his property on the date the [government] tenders payment, it
violates the Fifth Amendment.’ ” (Emphasis added.) 401 Ill. App. 3d at 987 (quoting Kirby,
467 U.S. at 17).
¶ 20 The appellate court concluded that under Illinois law a taking also does not occur until
the date the condemning authority tenders payment for the land and gains the right to title
and possession. See 401 Ill. App. 3d at 990. It then rejected the claim that Kirby does not
apply to Illinois condemnation law. It found that the fifth amendment to the United States
Constitution applies to the states through the due process clause of the fourteenth amendment
and requires not only that the process for setting just compensation afford the landowner due
process, but also that the result of the process actually yield just compensation. 401 Ill. App.
3d at 988-89 (citing Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 241
(1897)).
¶ 21 The appellate court then found that the remedies provided by Blue Island for correcting
for long delays were “not sufficiently ‘[reasonable,] certain and adequate’ ” under the United
States Supreme Court’s decision in Williamson County Regional Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985), to serve as a viable alternative
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method for seeking just compensation. 401 Ill. App. 3d at 997. Finally, it noted that equitable
considerations may play a part in setting just compensation. 401 Ill. App. 3d at 997. But
because there was no indication that defendants engaged in any intentional or deliberate
dilatory conduct or frivolous legal tactics, the delay in this case due to defendants mounting
a vigorous defense could not be a basis to deny them just compensation, especially where
such “a ‘sanction’ *** in this case, might be equal to more than half of the current value of
their property.” 401 Ill. App. 3d at 998.
¶ 22 Both the District and the Attorney General filed petitions for leave to appeal to this court,
raising several issues. This court allowed both petitions and consolidated them for review.
Additionally, defendants raise two arguments in their cross-appeal.
¶ 23 ANALYSIS
¶ 24 The issues presented in this appeal raise purely legal questions without any factual
disputes. We will therefore conduct de novo review of the issues presented. See, e.g., People
v. Brown, 225 Ill. 2d 188, 198 (2007).
¶ 25 I. No Forfeiture or Invited Error
¶ 26 We first address the Attorney General’s argument that defendants forfeited their right to
have just compensation valued using any point in time other than the date of the filing of the
condemnation action. In particular, the Attorney General argues that defendants invited error
by (1) asserting to the circuit court that the valuation date should be the date of the filing of
the condemnation action in accordance with section 7-121 of the Act and (2) agreeing to jury
instructions based on that section, and (3) only arguing for the first time on appeal that the
statute was unconstitutional as applied.
¶ 27 In support of her argument, the Attorney General relies on the following general
principles. A party may not urge a trial court to follow a course of action, and then, on
appeal, be heard to argue that doing so constituted reversible error. In re Detention of Swope,
213 Ill. 2d 210, 217-18 (2004). A party cannot seek reversal of a judgment entered on a jury
verdict based on an argument that the instruction was improper where that party tendered or
agreed to the instruction. J.L. Simmons Co. ex rel. Hartford Insurance Group v. Firestone
Tire & Rubber Co., 108 Ill. 2d 106, 116 (1985). A party’s failure to challenge the
constitutionality of a statute in the circuit court normally forfeits that challenge on appeal in
a civil case. See In re Liquidations of Reserve Insurance Co., 122 Ill. 2d 555, 567-68 (1988).
¶ 28 The Attorney General acknowledges, however, that we may overlook general forfeiture
principles in a civil case and consider an issue not raised below if the issue is one of law, is
fully briefed and argued by the parties, and the public interest favors considering the issue
now. See Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 73 (2002). Additionally,
we may also consider an issue of law that was not decided by the trial court if it was decided
by the appellate court. In re Marriage of Rodriguez, 131 Ill. 2d 273, 279 (1989). The
doctrines of forfeiture and waiver, however, should not be ignored if it is clear that the party
claiming forfeiture would have been able to refute or overcome the arguments if it had been
given the opportunity to do so in the trial court. Id. at 279.
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¶ 29 Applying the above-mentioned precepts to the circumstances here, we find that
defendants did not forfeit their argument, but that even if they did, this court would
nevertheless choose to consider it. First, it does not appear that any error was actually caused
by defendants’ actions. Defendants correctly identified the constitutional right at stake some
four months before the jury trial on valuation in their motion seeking a Kirby hearing. As the
appellate court pointed out, defendants argued in that motion that the just-compensation
guarantee of the fifth amendment applied to Illinois condemnation cases, and under Kirby,
just compensation required that the owner receive what the property was worth on the date
the government tendered payment. Defendants asserted that the value of their land had
increased since the date of valuation in this case, December 19, 1999. The motion analyzed
Kirby in detail, noted that Illinois law (especially, section 7-121) required that the date of
filing be considered the valuation date, and requested a posttrial hearing to determine if the
value of the property had “materially changed” after such a long delay. In support of their
request, defendants also cited recent amendments to the Act, which allow for a different date
of valuation for cases filed after its effective date of January 1, 2007. See 735 ILCS 30/10-5-
60 (West 2008) (“[I]f the trial commences more than 2 years after the date of filing the
complaint to condemn, the court may, in the interest of justice and equity, declare a valuation
date no sooner than the date of filing the complaint to condemn and no later than the date of
commencement of the trial ***.”); 735 ILCS 30/90-5-5 (West 2008) (“This Act applies only
to complaints to condemn that are filed on or after its effective date.”); 735 ILCS 30/99-5-5
(West 2008) (effective date of new act is January 1, 2007).
¶ 30 At the hearing on the Kirby motion conducted a month prior to trial, defendants arguably
raised the constitutionality of the statute as applied when they argued that the Illinois
statutory scheme in effect at the time of the filing of this condemnation action “does not
allow for just compensation” because it requires valuation as of the date of filing, but the
Constitution requires that just compensation be measured as of the date of taking, which is
the date the amount of the jury award is deposited. To remedy the situation, defendants
looked to the relief applied in Kirby and asked for a posttrial hearing to determine whether
there had been an increase in the value of the land since 1999, and if so, set just
compensation based on the date of the taking. The one snag in the remedy requested by
defendants is that Illinois allows for the right to a jury trial in condemnation cases. Thus, it
would not have been as simple as having the trial court modify the jury’s award to reflect just
compensation as of the date of deposit.
¶ 31 We can understand why one might be “appalled at the waste of judicial resources
inherent in the defendants’ request that the jury be asked to determine the 1999 value of the
[p]roperty but that the determination should then be set aside and the current value of the
[p]roperty be determined” by the court, and if the value had materially increased, to order a
second jury trial using a current valuation date. 401 Ill. App. 3d at 993. However, it appears
from the record that defendants’ failure to request a different valuation date for the jury to
consider or to more precisely argue the unconstitutionality of the statute as applied would not
have ultimately kept the trial court from proceeding to a jury trial based on the 1999
valuation date in this case.
¶ 32 At the hearing on defendants’ Kirby motion, the District strenuously argued both that
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Kirby did not apply in Illinois because it was limited to federal procedural rules governing
eminent domain and that, in any event, Kirby could not be applied to Illinois law where there
was no indication that there was any wrongful delay on the part of the government in
bringing the case to trial. The trial court was persuaded by the argument that Kirby could not
be applied in any application where there was no governmental delay. It is elementary
therefore that even if defendants had argued for a jury instruction using a 2007 valuation date
based on Kirby or specifically argued that the statute was unconstitutional as applied in the
absence of using a 2007 valuation date, it would have made no ultimate difference here. The
court would have denied any such request based on its belief that Kirby could not be applied
at all where there was no allegation that any of the eight-year delay was caused by the actions
of the District. Under all of the above noted circumstances–including the fact that defendant
raised in the trial court the general constitutional question involved here–we find no
forfeiture or waiver that would preclude our consideration of the merits of the Kirby issue,
which was fully briefed and argued in the appellate court and then resolved by that court.
¶ 33 II. Application of Kirby
¶ 34 Finding no forfeiture, we turn now to the issue of whether the appellate court correctly
applied Kirby to order a hearing on remand to determine if the property has materially
increased in value, and if so, to hold another jury trial on valuation. In Kirby, the government
filed a condemnation complaint on August 21, 1978, to take timber company land for a forest
preserve. Trial began before a commission on March 6, 1979, which was also the date of
valuation used for assessing just compensation. The commission entered a report
recommending compensation of roughly $2.3 million. Both parties filed objections in federal
district court, and that court entered judgment on the commission’s report. However, a period
of three years and three weeks elapsed between the date of the trial (the valuation date) and
the date of the taking (the date the government made payment for the land and acquired title).
¶ 35 The United States Supreme Court granted certiorari in the case to determine the date on
which a taking occurs and to consider whether there was any obligation of the government
to pay interest from the date of trial to the date of deposit. Kirby, 467 U.S. at 9. The Court
began by noting that the fifth amendment does not preclude the government from taking land
and paying for it later. But the fifth amendment requires that if disbursement of the award
is delayed, the owner is “entitled to interest thereon sufficient to ensure that he is placed in
as good a position pecuniarily as he would have occupied if the payment had coincided with
the appropriation.” Kirby, 467 U.S. at 10-11. Thus, the court found identification of the time
of the taking of a tract of land crucial to the amount of compensation to which an owner is
constitutionally entitled. Id. at 11.
¶ 36 Kirby then noted that Danforth v. United States, 308 U.S. 271, 284 (1939), had held that
unless a taking has occurred “previously in actuality or by a statutory provision,” a taking in
a condemnation suit takes place upon the payment of the money award by the condemnor.
Kirby noted that justification for the rule was based on the understanding that the “owner is
protected by the rule that title does not pass until compensation has been ascertained and
paid.” (Internal quotation marks omitted.) Kirby, 467 U.S. at 12 (quoting Danforth, 308 U.S.
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at 284-85). Kirby further cited a federal rule that permits the government “to dismiss a
condemnation suit at any time before ‘compensation has been determined and paid,’ unless
the [g]overnment previously has ‘acquired the title or a lesser interest ... or taken
possession.’ ” Kirby, 467 U.S. at 12 (quoting Fed. R. Civ. P. 71A(i)). The Court observed
that the government’s ability to abandon the proceeding in this fashion would be difficult to
understand if a taking were effectuated any time prior to tendering payment. See Kirby, 467
U.S. at 12. Kirby also looked to a federal provision equivalent to our state quick-take
procedure (see 735 ILCS 5/7-103 (West 1998)) as support for its holding that a taking could
not have occurred prior to payment and the government’s acquiring of title and the right to
possess the land. The Court observed that “the option of peremptorily appropriating land
prior to final judgment, thereby permitting immediate occupancy and improvement of the
property[,] *** would have been superfluous if, as petitioner contends, a taking occurred
upon the filing of the complaint in a [straight-condemnation] suit.” Kirby, 467 U.S. at 12-13.
Accordingly, Kirby concluded that the taking of the petitioner’s land occurred on March 26,
1982, the date the award was paid, and therefore, petitioner was not due any interest.
¶ 37 Kirby further found that its conclusion did not dispose of the case because it still had to
determine whether the award itself satisfied the requirements of the fifth amendment. Kirby,
467 U.S. at 16. The Court agreed with the landowner’s argument that, to the extent that the
$2.3 million awarded by the jury is less than the value of the land on March, 26, 1982, the
date of the taking, it has been denied just compensation. The government had argued in
response that a general rule setting a date of valuation in all cases (like the rule setting the
time of trial as the date of valuation) was necessary so the trier of fact would know the date
on which the value of the land should be assessed. The Court, however, was insistent that the
government’s argument did not negate the landowner’s constitutional claim:
“The Government’s argument provides a plausible explanation for the valuation
procedure used in this case and other cases, but it does not meet [the landowner’s]
constitutional claim. However reasonable it may be to designate the date of trial as
the date of valuation, if the result of that approach is to provide the owner
substantially less than the fair market value of his property on the date the
[government] tenders payment, it violates the Fifth Amendment.” Kirby, 467 U.S. at
17.
¶ 38 Kirby’s solution to the problem was to allow the landowner on remand “to present
evidence pertaining to change in the market value of the tract during the period between
those two dates.” Kirby, 467 U.S. at 19. Finally, the Court opined that because a landowner
would be obliged to bear some litigation costs in bringing a claim that there had been a
change in value, it would have the healthy effect of dissuading landowners from lightly
deciding to undertake such claims. Kirby, 467 U.S. at 19 n.29.
¶ 39 In applying Kirby to the present case (or even deciding in the first instance whether it
should be applied to Illinois law), it is necessary to know the point in time a taking occurs
in Illinois. Because if a taking in Illinois occurs on the date the condemnation action is filed,
then the valuation date would correspond with the taking date and there would therefore be
no Kirby problem to speak of.
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¶ 40 We find that a taking in Illinois for the purposes of applying Kirby occurs on the date that
the government (1) deposits the amount of compensation that has been ascertained and
awarded, and (2) acquires title and the right to possess the property. The District relies
primarily upon Dunlevy, Blue Island, and City of Chicago v. Farwell, 286 Ill. 415 (1918),
to support its argument that a “taking” occurs upon the mere filing of the condemnation
complaint. We find that the District’s reliance upon Dunlevy and Blue Island is misplaced,
and to the extent that Farwell can be used to support the District’s argument, we find that it
was wrongly decided and must be overruled.
¶ 41 Dunlevy merely held that the value of land in a condemnation case should be measured
as of the date of the filing of the petition to condemn. Dunlevy, 91 Ill. at 53. It did not hold
that a “taking” occurred upon the filing of the petition to condemn. Instead it held just the
opposite:
“The filing of a petition to condemn property is not a taking of the same. If the
[government] took possession of defendant’s property before the damages were
assessed and paid, they were trespassers ***. *** The defendants had the right to the
possession and use of their property after the petition was filed, the same as before,
and we perceive no reason why they should have the use of the property, and at the
same time be allowed interest upon its value, before it was actually taken.” Dunlevy,
91 Ill. at 54.
¶ 42 The more recent decision of this court in Blue Island did not purport to address the
question of when a taking occurs. Rather, the court simply repeated the established rule that
the value of property to be taken in a condemnation proceeding is determined using the date
the petition for condemnation was filed. See Blue Island, 49 Ill. 2d at 411.
¶ 43 Thus, neither Dunlevy nor Blue Island supports the District’s argument, and Dunlevy
actually supports the landowners’ argument. That leaves the District to rely upon Farwell.
But we do not find that case persuasive here. In particular, the District relies upon the
following language from Farwell:
“The constitution provides that private property shall not be taken or damaged for
public use without just compensation, and it is always held that compensation is to
be determined as of the time of the taking. There is a diversity of rule in different
jurisdictions as to the time when a taking for public use occurs, but in this State that
question has passed beyond the stage of discussion and has become a fixed rule,
which is, that the compensation is to be determined as of the date of filing the
petition and not at the time of the trial.” Farwell, 286 Ill. at 417.
Farwell seems to have confused the date of valuation with the date of taking and equated the
two as necessarily being the same thing. In support of the above-quoted paragraph, Farwell
cited Dunlevy. But as we have noted, Dunlevy clearly held that the filing of a condemnation
complaint is not a taking. Rather, a taking does not occur in Illinois until the condemning
authority has paid the condemnation award and acquired the right to possess the property.
Dunlevy, 91 Ill. at 54.
¶ 44 Dunlevy is consistent with this court’s most recent decision grappling with the question
of the point in time when a taking occurs under Illinois law. In Forest Preserve District v.
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West Suburban Bank, 161 Ill. 2d 448, 455 (1994), this court noted that the issue of when a
taking occurs in a condemnation proceeding “is a somewhat amorphous question.” In one
sense, “as a matter of legal fiction,” it has been held that a taking occurs upon the filing of
a complaint because the title acquired upon payment of just compensation relates back to the
time of the filing of the complaint. See West Suburban, 161 Ill. 2d at 455 (discussing City
of Chicago v. McCausland, 379 Ill. 602 (1942)). But in a more “corporeal sense,” a taking
does not take place until compensation has been ascertained and paid, because until that
point, the owners “continue to enjoy title and the rights associated with possession of the
property.” West Suburban, 161 Ill. 2d at 455-56.
¶ 45 The appellate court here correctly noted that West Suburban’s discussion of cases finding
a taking dating back to the filing of the complaint concerned whether landowners were liable
for property taxes assessed after the condemnation complaints had been filed. See 401 Ill.
App. 3d at 989. A party is liable for taxes on the property until compensation is paid and the
landowner relinquishes title, but he may be reimbursed by the county for the taxes paid
dating back to the filing of the complaint. Yet, the condemning authority could abandon the
taking at any time before acquiring title, leaving the landowner liable for the taxes without
any hope of reimbursement. We agree with the appellate court that the discussion in West
Suburban of cases like McCausland does not inform our decision here regarding the time of
a taking for purposes of the holding in Kirby.
¶ 46 Given that the condemning authority in an Illinois condemnation proceeding can abandon
the proceeding at any time prior to making payment and acquiring title and the right to
possession, we too find it difficult to fathom how a taking could occur any sooner. See Kirby,
467 U.S. at 12 (the government’s “capacity to withdraw from the proceeding *** would be
difficult to explain if a taking were effectuated prior to tendering of payment”); see also
Danforth, 308 U.S. at 284 (“Until taking, the condemnor may discontinue or abandon his
effort[;] [t]he determination of the award is an offer subject to acceptance by the condemnor
and thus gives to the user of the sovereign power of eminent domain an opportunity to
determine whether the valuations leave the cost of completion within his resources.”).
Moreover, the fact that Illinois has a quick-take statute is further support for our conclusion
that a taking did not occur upon the filing of the action. The option to file a quick-take
proceeding giving the condemnor immediate right of possession would be superfluous if a
taking had already occurred upon the filing of the complaint.
¶ 47 The District cites the United States Supreme Court’s decision in Danforth to argue that
the Supreme Court would recognize an exception to the “time of taking is the time of
payment rule” in state condemnation proceedings where a state statute defines a different
time of taking. We disagree that the exception noted in Danforth is applicable here. In
Danforth, the Court held that the date of taking is the date the government pays for the land
and acquires title. Danforth, 308 U.S. at 284. It found an exception to that holding exists for
jurisdictions in which the taking occurs “by a statutory provision, which fixes the time of
taking by an event such as the filing of an action.” Danforth, 308 U.S. at 284. The District
argues that Illinois has such a rule fixing the date of taking as the date the condemnation
action is filed. But we note that section 7-121 of the Illinois Eminent Domain Act does not
mention when a taking occurs. Rather, it addresses only the date of valuation for purposes
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of determining just compensation at the condemnation proceedings. Thus, Illinois does not
have a statute setting the date of taking earlier than the date of payment of the compensation
award. Furthermore, to the extent that the District is arguing that Illinois has a state judicial
rule setting the date of taking as the date of filing, we have already rejected that notion based
on our readings of Dunlevy and West Suburban.
¶ 48 The District cites Brown v. United States, 263 U.S. 78 (1923), as an example of the kind
of state statue that Danforth believed would qualify for the exception to the general rule that
a taking does not occur prior to payment. But the Idaho statutory scheme at issue in Brown
is clearly distinguishable from section 7-121 of our act. Among other differences, the scheme
in Brown required the payment of interest to the defendant from the date of summons. Our
statutory provisions do not require the payment of interest between the date of the filing of
the condemnation action and the date of the judgment.
¶ 49 If a “taking” truly occurs under Illinois law upon filing, such would render our taking
provisions unconstitutional in the absence of a statutory provision requiring the payment of
interest to the landowner from the date of filing to the date of judgment. See Kirby, 467 U.S.
at 11 & n.16 (citing United States v. 329.73 Acres of Land, Situated in Grenada & Yalobusha
Counties, 704 F.2d 800, 812 & n.18 (5th Cir. 1983) (en banc) (the fifth amendment mandates
not only that a landowner be awarded just compensation, represented by the fair market value
of the property on the date taken, but also that just compensation in the constitutional sense
is the fair market value of the property at the date of taking, plus interest from that date to
the date of payment)). We can easily avoid that result, however, because we find no doubt
that a taking does not occur for our purposes until, at the very earliest, the date the
government deposits the condemnation award and is given the right to take title and
possession.
¶ 50 III. Failure to Demand Speedy Trial
¶ 51 Both the District and the Attorney General argue that the appellate court failed to apply
the holding of Blue Island, which, they contend, provides that a condemnation defendant
who wishes to correct a situation where a case lingers for a long time and the property’s
value increases should either (1) move to dismiss the condemnation case or (2) file a
“demand for a speedy trial.” Failure to do so, they argue, results in forfeiture of any claim to
constitutional injury resulting from the delay. The Attorney General adds that the fifth
amendment does not prohibit states from requiring landowners to follow particular
procedures (such as those set forth in Blue Island) to perfect their right to just compensation;
all it demands is that the State’s procedures be “reasonable, certain and adequate”
(Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S.
172, 194 (1985)) and comport with due process.
¶ 52 We disagree that Blue Island controls the outcome here. First, the case is distinguishable
on its facts. In Blue Island, the landowner maintained that a four-year delay in the
condemnation proceeding had deprived him of just compensation because the value of the
land had increased from the date the complaint was filed to the date the judgment was
entered. This court noted that the defendant was represented by an experienced
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condemnation attorney during the four-year period that the case was pending, who did not
make a demand for a hearing, but instead agreed to 20 continuances that were requested by
the condemning authority. Blue Island limited its holding to the facts, finding that “[u]nder
these facts and the law as stated in Chapin and Winkelman we cannot say that the trial court
erred in denying the defendant’s traverse as to the constitutional issues involved in the
delay.” Blue Island, 49 Ill. 2d at 412.
¶ 53 We note that Blue Island seemed to assume that there was no constitutional problem with
a long delay where the landowner shared complicity in the delay. Here, in contrast to Blue
Island, it does not appear that defendants acquiesced to any unnecessary delay. Rather, it
appears that both sides in the proceedings below vigorously litigated the issues as they arose.
The District points to the delay incurred as a result of defendants’ efforts to resolve
ownership of the property and to gain control of the right to direct the litigation, but we do
not believe that these efforts were unnecessary or that they wrongfully prolonged the
litigation so that they could be said to result in holding defendants chargeable for delay and
denying them their constitutional right to just compensation.
¶ 54 Second, we note that Blue Island looked at the case through the lens of Winkelman and
Chapin and saw the issue more in the nature of a tort-like action for damages to compensate
for the government’s wrongful delay, rather than as a simple constitutional question. Blue
Island, of course, did not have the benefit of the Kirby decision, as it was decided 13 years
before Kirby. In looking to Winkelman and Chapin, Blue Island began its analysis by noting
that the rule requiring valuation as of the date of filing “could be productive of injury to the
land owner.” Blue Island, 49 Ill. 2d at 411. It then cited Winkelman for the notion that the
condemning authority “should prosecute the suit with diligence and that it is liable to the land
owner for damages occasioned by a wrongful delay.” Blue Island, 49 Ill. 2d at 411;
Winkelman, 213 Ill. 360. It also cited Chapin for the proposition that a court may properly
dismiss a condemnation suit for failure of the plaintiff to prosecute it with diligence, “ ‘where
no sufficient excuse is presented.’ ” Blue Island, 49 Ill. 2d at 411 (quoting Chapin, 226 Ill.
at 501). Blue Island then observed that the right to recover damages for the delay is not based
simply upon the fact that there is a delay, but on the theory that there is a “wrongful” delay.
Blue Island, 49 Ill. 2d at 411. It also implied that a landowner confronted with the possibility
of delays caused by the government had a duty to request a speedy trial based on the
following language from Winkelman: “ ‘The defendant who stands by and makes no effort
to bring his cause to trial should be considered as waiving damages caused by the delay. If
he desires a speedy trial, it is his duty to advise the court of that fact.’ ” Blue Island, 49 Ill.
2d at 411 (quoting Winkelman, 213 Ill. at 364).
¶ 55 We find that the discussion in Blue Island with respect to wrongful delay and the need
for a speedy-trial request, which relies upon Winkelman and Chapin, is not applicable here.
Defendants are not seeking damages, but rather just compensation. We do not believe that
the holding of Kirby can only be applied where there is wrongful conduct on the part of the
government. Nor do we believe that defendants were required to demand a speedy trial under
the circumstances of the present case. A defendants’ need to push for a timely trial makes
sense in the context of a situation where a landowner is encountering problems with delay
in the government’s prosecution of the case, as was the case in Winkelman, Chapin and Blue
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Island. But if neither party is doing anything other than vigorously litigating the issues that
legitimately come up in the proceeding, we see no valid reason why a speedy-trial demand
would be required to preserve a landowner’s right to just compensation, nor can we envision
what practical good it would do to make such a demand. As the appellate court presciently
noted,
“Would such a request require the parties to cut short discovery? Would it require a
defendant to forgo its right to file a traverse opposing the condemnation, or prevent
the plaintiff from bringing motions for summary judgment on the issues raised in the
traverse, as the plaintiff did here? Would the trial court be required to grant such a
request for a speedy trial? If it did not, would that restore the defendant’s right to
seek a more current valuation for the property that the plaintiff seeks to take? What
about cases where, as here, the ownership of the property was the subject of a
pending legal dispute when the condemnation complaint was filed?
Illinois law provides no answers to these questions. Indeed, we have not found
any case in which a speedy condemnation trial was requested. Because it is unclear
what is meant by the ‘speedy trial’ remedy that [the District] and [the Attorney
General] argue the defendants should have sought, that remedy is not sufficiently
‘certain and adequate’ under Williamson County to serve as a viable alternate method
for seeking just compensation.” 401 Ill. App. 3d at 997.
We agree with the appellate court’s assessment. Accordingly, we do not believe that
defendants’ failure to follow the strictures of Blue Island constituted a forfeiture of its just
compensation claim.
¶ 56 IV. Option to Abandon the Condemnation Proceeding
¶ 57 We next consider two issues raised by defendants in their cross-appeal before this court.
Defendants first argue that the appellate court erred in holding that on remand the District
may choose to abandon this condemnation case, even though the District has already
deposited funds pursuant to the trial court judgment but has not taken possession. 401 Ill.
App. 3d at 1005. Defendant points out that earlier in its opinion, the appellate court held that,
“for the purposes of the fifth amendment, we believe that for Illinois takings just as for
federal takings, the date of the taking is the date on which the government actually acquires
the property by paying for it.” 401 Ill. App. 3d at 990. The District deposited the jury’s award
of just compensation on December 20, 2007. Defendants argue that title to the property
passed to the District on that date, and the District cannot now abandon that which it has
already taken. Moreover, defendants contend that the date of valuation for any new trial must
be December 20, 2007, and not, as the appellate court found, the date of any new trial.
¶ 58 The problem with defendants’ argument is that it ignores that the trial court in entering
judgment on the jury’s award and allowing the District to make the deposit, specifically
ordered that the District’s right to acquire title to the property and possession had to await
a future order from the court. The court did this to allow the District to perform due diligence
with respect to some environmental concerns with the property and also because defendants
were raising the Kirby issue and challenging the award as denying just compensation. The
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record does not reflect that the trial court ever rescinded its order deferring the right to
acquire title and possession. Moreover, the appellate court has now vacated the jury’s award
of compensation (subject to reinstatement), and we therefore do not yet know if the amount
deposited reflects payment of just compensation, which would effectuate a taking. We note
that normally a taking does occur upon deposit of the judgment amount awarded by the jury.
But under the special circumstances here that is not the case. The reason for the rule that the
taking occurs upon payment is because that is normally when the condemning authority
acquires title and the right to possession. See, e.g., West Suburban, 161 Ill. 2d at 455-56;
Dunlevy, 91 Ill. at 54. But because of the trial court’s order deferring the rights to title and
possession, which normally occur as a matter of law upon payment, we can only conclude
that the “taking” has not yet been consummated. For that reason, the appellate court was
correct to hold that “the date of any new trial, rather than the December 2007 time of the
[District’s] deposit, will more closely approximate the ‘date of taking.’ ” 401 Ill. App. 3d at
1005.
¶ 59 We also believe that it follows logically that if a taking has not yet occurred, then the
District is free to abandon the proceeding if it chooses. See West Suburban, 161 Ill. 2d at
456. We also agree with the following statement of the appellate court setting forth equitable
grounds for its finding that the District still had the option to abandon the condemnation
proceeding if it wishes to choose that course:
“Although the [District] here properly deposited the amount of the jury verdict
following the trial, it has not taken possession of the [p]roperty, due to the pendency
of this appeal. Our ruling in this case *** would cause prejudice to the [District] if
the [District] were not given the opportunity to abandon the taking now that the cost
of acquiring the [p]roperty might be substantially higher. Thus, in this case we hold
that the [District] may abandon the taking if it wishes and withdraw its deposit of the
amount of the jury’s verdict.” 401 Ill. App. 3d at 1005.
¶ 60 V. Good-Faith Negotiation
¶ 61 Defendants next argue that the appellate court erred in affirming the trial court’s grant
of summary judgment, finding that the District engaged in good-faith negotiations prior to
filing suit. Specifically, defendants argue that the District’s offer was not supported by
reasonable evidence of value, and its negotiations were therefore not conducted in good faith.
¶ 62 Summary judgment is proper when the pleadings, depositions and affidavits on file
demonstrate that no genuine issue of material fact exists, and that the moving party is entitled
to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1998). This court conducts a
de novo review of an order granting summary judgment. Millennium Park Joint Venture,
LLC v. Houlihan, 241 Ill. 2d 281, 309 (2010).
¶ 63 The Eminent Domain Act provided at the time of the negotiations at issue here that a
governmental body may exercise the power of eminent domain through a condemnation
proceeding only where, among other things, “the compensation to be paid for or in respect
of the property sought to be appropriated *** cannot be agreed upon by the parties
interested.” 735 ILCS 5/7-102 (West 1998). This provision has been interpreted by this court
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as requiring the condemnor to negotiate with the landowner in good faith over the amount
of compensation to be paid as a “condition precedent” before it initiates proceedings to take
the landowner’s property through eminent domain. Department of Transportation ex rel.
People v. 151 Interstate Road Corp., 209 Ill. 2d 471, 480 (2004). An offer made by a
governmental body based on the advice of an experienced appraisal consultant is normally
sufficient to establish a good-faith attempt to agree. See 151 Interstate, 209 Ill. 2d at 489-90;
Blue Island, 49 Ill. 2d at 413-14.
¶ 64 In the present case, the pleadings, depositions and affidavits on file indicate that the
District negotiated in good faith as a matter of law. When the District decided to acquire the
property in November 1999, it obtained a preliminary engineering report and, based on that,
a preliminary estimate of value. The Polach Appraisal Group (Polach) provided a verbal
estimate on November 23, 1999, that the property had a value of $10.3 million. The District’s
board of commissioners authorized the District to negotiate for the property. The District
subsequently sent letters offering $9.27 million and gave the owners 10 business days to
respond before the matter would proceed to condemnation. The District’s chief negotiator
testified in his deposition that it was the District’s policy to make its initial offer 10% below
the appraised value. If the landowner made a counteroffer, the negotiator could immediately
offer the full appraised value, and could go as high as 10% more than the appraised value
before having to seek further approval from the board.
¶ 65 On December 3, 1999, the District received an updated verbal appraisal from Polach of
$11.2 million. But on December 6, 1999, David W. Phillips, a second appraiser that the
District had hired, came back with his estimate stating that he believed the Polach appraisal
was too high, and it was his opinion that the property had a value of $8.995 million. The
owners rejected the District’s initial offer of $9.27 million, but did not bother to make any
counteroffers.
¶ 66 As the appellate court noted, the District’s decision to offer defendants slightly less than
the first appraisal it received as a starting offer–but more than that the second appraisal it
received prior to its decision to commence the condemnation proceedings–is not comparable
to the egregious behavior present in the two cases relied upon by defendants to support their
position. See 401 Ill. App. 3d at 974 (discussing City of Chicago v. Zappani, 376 Ill. App.
3d 927 (2007) (where the city offered between 45% and 60% of the appraised value of the
parcels it sought), and City of Naperville v. Old Second National Bank of Aurora, 327 Ill.
App. 3d 734 (2002) (where the city offered less than half of its own appraised value for the
property)). In contrast, the District’s offer here cannot “be viewed in the light of a
ridiculously low offer without foundation on a take-it or leave-it basis.” Blue Island, 49 Ill.
2d at 414. Under these circumstances, then, we find that the District’s negotiations were
clearly conducted in good faith and that there was an inability of the parties to agree on an
acceptable purchase price. Thus, the District’s filing of the condemnation action in this case
was allowable.
¶ 67 Defendants also argue that the District’s appraisal failed to take into account the Summit
parcel’s contract price and that this violated accepted appraisal industry standards.
Defendants, however, have forfeited the argument by failing to present it to the trial court,
and we will therefore not consider it here. See In re Application of the County Treasurer &
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ex officio County Collector, 373 Ill. App. 3d 679, 702 (2007).
¶ 68 Defendants make two additional arguments related to good faith. They argue that the
District’s lack of good faith is shown by its failure to attach an appraisal to its offer letters
and by setting a limit of 10 days for negotiations. The appellate court correctly found that
neither of these actions violated any constraints placed on condemning bodies. See 401 Ill.
App. 3d at 975. Under section 7-102.1 of the Act, the condemning authority’s offer letter to
the landowner must include “[t]he amount of compensation for the taking of the property
proposed by the agency, and the basis for computing it.” 735 ILCS 5/7-102.1(d)(1) (West
1998). No Illinois court has ever held that including “the basis for computing” the amount
of compensation means that the condemning authority must actually tender its own appraisal
to the landowner. Because plaintiff was not required by law to attach an appraisal to its offer
letter, we decline to find that the failure to do so constitutes a lack of good faith. Similarly,
we conclude that a condemning body is not legally constrained to provide more than 10 days
for negotiations in order to satisfy the good-faith requirement. See Blue Island, 49 Ill. 2d at
410, 414; County Board of School Trustees v. Batchelder, 7 Ill. 2d 178, 180-82 (1955).
¶ 69 CONCLUSION
¶ 70 For the foregoing reasons, we affirm the judgment of the appellate court. We find that
the appellate court correctly affirmed the circuit court’s order granting summary judgment
in the District’s favor on the issue of good-faith negotiations. The appellate court also
correctly vacated the jury’s verdict as to the value of the property, subject to a possible
reinstatement by the trial court following a hearing on just compensation using the current
value of the property. The cause is remanded to the circuit court of Du Page County for
further proceedings consistent with this opinion.
¶ 71 Appellate court judgment affirmed;
¶ 72 cause remanded.
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