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"Developers'
Interest in Land Undercuts Bid to Condemn"
By Barry A. Springer
Chicago Law Bulletin, 1994: September 19
In a case tried for property owners by the author and
others, the Village of Skokie sued to take land for
redevelopment purposes. The alleged bases in law for the
condemnation were the village's ordinances and home-rule
powers.
The defendants all filed and otherwise joined in traverses and
motions to dismiss the case, alleging that the taking was
excessive, unnecessary and an abuse of discretion by the
village. The parcels were a gas station, three vacant lots
and a partially vacant building located on the southwest
corner of Dempster Street and McCormick Boulevard.
Cook County Circuit Judge Mary Conrad directed a finding that three
lots, which were zoned residential, should be stricken from
the complaint to condemn, as they were outside the
redevelopment project's physical boundaries. After the
village amended its redevelopment plan to include those
lots, the court denied the village's motion to reconsider.
After a hearing, the trial court also allowed the traverses and
motions to dismiss. Village attorneys appealed, but the 1st
District Appellate Court affirmed. Village of Skokie v.
Harry P. Gianoulis, 632 N.E.2d 106 (1st Dist. 1994).
The first issue before the appeals court was the correctness of the
trial court's striking of the three vacant lots from the
complaint.
Writing for a unanimous 1st Division panel, Justice Robert Chapman
Buckley discussed the village's 1984 ordinance that created
the redevelopment plan and defined the public purpose and
need for the project. Buckley wrote that the initial
ordinance (not the 1989 one that merely authorized
acquisition of the lots) was the one from which the village
derived its authority, if any, to take.
Coupled with the law of strict construction of the underlying
authority for a taking ordinance and the facts that the
three lots were outside the project area and not part of the
redevelopment study the village conducted, the appeals court
held that the three lots were properly held to be outside
the village's eminent domain power.
The court also held that the defendants did not waive this issue by
failing to raise the objection at the close of the village's
case. Buckley wrote that the defendants' filing of the
traverses and motions to dismiss alone, which contested the
right of the village to take and the need for the attempted
taking, acted to negate this contention.
As for the defendants' challenge to the necessity for the attempted
taking, the court cited numerous points showing that the
village had abused its discretion. For example, the appeals
court pointed to the defendants' attempts to correct alleged
problems on the property and their submission of a
renovation plan that the village rejected in attempting to
appropriate the property.
"The instant case is one in which a municipal body acting in a
legislative capacity clearly abused its power, " Buckley
wrote. "A review of the record indicates that the [village
and others] have deliberately denied defendants the means to
correct the problems which are being used as evidence in
favor of condemnation."
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