Daily Herald
March 16, 2005

Expressway violates land rights, foes say

By Patrick Waldron
Daily Herald Staff Writer

Opponents of the proposed Prairie Parkway took their case to an Illinois appellate court Tuesday, arguing that a state-designated transportation corridor violates their rights as property owners.

Tim Dwyer, an attorney for more than 50 landowners in Kane and Kendall counties, argued that a law allowing the Illinois Department of Transportation to demand owners notify the agency about any property upgrades is unconstitutional.

"You can't tie up somebody's property rights based on something that may or may not happen," Dwyer, said in his oral argument before the 2nd District Appellate Court in Elgin.

Back in 2002, Illinois transportation officials stamped the proposed expressway's path onto the deeds of landowners along that route, protecting the 33-mile-long, 400-foot-wide strip of land from future development.

Individual property owners still own the land and they still can build inside the corridor, which snakes north from I-80 in Grundy County near Minooka, through Kendall County, ending at I-88 in western Kane County, near Kaneville. Any development inside the corridor, however, requires notification of IDOT.

In the months after the corridor was put on the deeds, 56 property owners sued the state attempting to get rid of the proposal. A Kendall County judge eventually dismissed the original suit and two other revisions.

The appeal argued Tuesday rose out of the second Kendall County case revision and deals specifically with what Dwyer calls the law's violation of the owner's due process rights.

Carl J. Elitz, an assistant state attorney general working for IDOT, argued that the agency isn't using the corridor law for a land grab or to inhibit the rights of property owners.

"The state is doing nothing but telling them to give us notice," Elitz said.

If an owner wanted to build a barn or other structure, Elitz said, all that the state needs is notification of that project. That gives the state room to negotiate with the owners about possible land sales.

In the event the state wants to buy a property and a negotiated deal can't be reached, then IDOT can rely on its traditional eminent domain powers to forcibly buy land.

During the arguments, Justice Jack O'Malley questioned how the corridor law violates owners' rights because the state would have to follow traditional condemnation laws before being able to forcibly buy property.

Dwyer argued that eminent domain is based on public need. This corridor law, Dwyer maintained, creates a situation in which public need arises because, for example, someone wants to build a barn and that could someday cost IDOT more money.

In that case, the need doesn't arise because a road is being built anytime soon.

The three-judge panel took the argument under advisement and is expected to issue a ruling on the case in the next month or two.