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In Department
of Transportation v. 151 Interstate Road Corp., 777 N.E.2d
369 (Ill. App. Ct. 2002), DOT filed a condemnation action to take a part
of the owners' land. The owners moved to dismiss the action for lack of
a statutorily required good-faith pre litigation offer. The trial
court denied the motion and entered an order of taking. On an
interlocutory appeal, the court held: reversed with directions to the
trial court to vacate its order fixing preliminary just compensation
and vesting title in DOT, and to address the issue of the owners'
statutory fees and costs.
The Staff at Liston & Lafakis, P.C.
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DOT offered the owners $8,000 but about a week later upped that figure
to $90,000. The owners informed DOT that they were having the property
appraised and would not be able to respond within 60 days. DOT then
reduced that take area and reduced the offer by $7,000. When DOT filed
the condemnation action, the owners moved to dismiss for lack of a good
faith offer required by statute. At the hearing which both sides'
appraisers presented their opinions of value, it became clear that
DOT's appraiser's appraisal (he opined to $10/sq. ft. whereas
comparables ran to over $16/sq. ft.) was deficient. [Ed.
Note: The opinion of the Appellate Court dissects the appraisal
testimony in detail and at length and spotlights the many deficiencies
in DOT's appraisal.]
The court reviewed the Illinois condemnation procedure and concluded
that a filing of a condemnation action must be preceded by a good faith
effort to reach an agreement on compensation. While DOT's failure to
respond to the owners' counteroffer did not in itself demonstrate bad
faith, by relying uncritically on "a patently suspect
appraisal" combined with its "one offer" policy it
failed to establish good-faith, particularly in light of the fact that
DOT was that particular appraiser's largest customer, which also raised
concerns over bias. Thus, the trial court's ruling was contrary to the
manifest weight of the evidence.
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The owners were entitled to the statutory 60-day period to consider and
respond to DOT's second offer, which they did not get; the statute
makes no distinction between initial and later prelitigation offers.
However, the court rejected the owners' argument that DOT was required
to plead its compliance with the good-faith offer statute.
Responding to DOT's petition for rehearing (in which DOT conceded that
its initial briefing was deficient and rightly branded as such in the
opinion), the court stuck to its guns, and in an unequivocally worded
supplemental opinion reiterated its position that it was DOT's
responsibility to police its appraisers.
DOT's subjective
absence of bad faith would in no way address the statutory requirement
that prospective condemnees receive good-faith offers. To do otherwise
would improperly shift the burden and cost of maintaining quality
control of DOT's appraisals to the condemnees. Citing numerous cases
from other states, the court stressed that the mere absence of bad
faith is not indicative of good faith. Being ignorant of deficiencies
in DOT's own appraisal was not good faith. "At most," said
the court, "our decision will require [DOT] to wait an additional
60 days when it is necessary to make a new offer." There would be
nothing unreasonable about that. The fact that large sums were being
expended for construction of public works did not justify placing the
condemnation process beyond judicial scrutiny.
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O'HARE INTERNATIONAL AIRPORT
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AREAS OF POTENTIAL LAND
ACQUISITION - OVERALL
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