Chicago Tribune
March 16, 2005

Outer-belt appeal heard in court

Land owners fight corridor designation
By William Presecky
Tribune staff reporter

A state appeals court in Elgin on Tuesday heard a ground-breaking lawsuit that challenges the state's authority to protect indefinitely a 36-mile-long transportation corridor through parts of Kane, Kendall and Grundy Counties where a highway might someday be built.

The case was filed with the 2nd District Illinois Appellate Court after a Circuit Court judge in Yorkville dismissed the twice-amended complaint for the last time nearly a year ago.

The lawsuit by 56 property owners stems from the state's decision in mid-2002 to formally reserve a so-called Prairie Parkway corridor, a 400-foot-wide swath of land between Interstate Highways 88 and 80 to protect it from further encroachment.

Property owners are required to report to the Illinois Department of Transportation any substantial changes proposed for their land, which triggers an option by the state to buy it. The owners allege the corridor protection statute deprives them of their right to due process.

Assistant Atty. Gen. Carl J. Elitz, who argued on behalf of the state, declined to comment on the case after nearly an hour arguments before 2nd District Appellate Judges Jack O'Malley, Thomas Callum and Frederick Kapala.

Attorney Timothy Dwyer, of St. Charles, also declined to speculate afterward how the rather lengthy questioning by the judges might bode for his clients.

In court Tuesday, Dwyer reiterated his argument that no public need for his clients' land was shown before the state's action to include it in a protected corridor for as long as it chooses.

"They completely overstepped their bounds as to the actual [corridor protection] statute," Dwyer argued. "They can't possibly say there's a public need," he said. "The only rational reason is to reduce [future] condemnation costs. The process is completely flipped," said Dwyer.

"The state's not taking anything," Elitz said. "The state is doing nothing except that people [in the corridor] have to give us notice [of proposed changes to the land.]"

Elitz argued that the rights of the property owners, like any other property owners, are safeguarded because the process of eminent domain, or condemnation, requires IDOT to demonstrate that there is a public need for land.

"This whole discussion we're having is premature," Elitz said.

Kendall County Circuit Judge Leonard Wojtecki concluded last March that Dwyer's final, amended version of the lawsuit contained "fatal defects" that caused him to dismiss two earlier versions, in January and June 2003.

The potential transportation path includes more than 190 properties.

The original lawsuit challenging the corridor protection statute was filed in September 2002.