What’s this, a court invalidating an attempted taking because it isn’t necessary? What gives, Appellate Court of Illinois?

Well, in City of West Chicago v. Pietrobon, No. 2-20-0174 (Apr. 28, 2021) (unpub.), the court affirmed the trial court’s determination that the taking of a strip of the owner’s property might qualify as a future public purpose, but the facts showed otherwise.

A taking of property for a road seems like one of those “classic” public uses, no?  Here, the city and the developer (the neighbor of Pietrobon) apparently believed that the property on which the road was contemplated was public property. Not so. It turned out that Pietrobon actually owned the land. So condemnation followed.

The first time the case went up to the appellate court, it concluded that the condemnor had established a prima facie public purpose taking. Yes, the taking was for the benefit of the neighbor developer, but in the future (the complaint alleged) the city would get the road. The court sent the case back down to see if the property owner had rebutted these prima facie allegations.

The trial court agreed with the owner, concluding that the city’s condemnation was an abuse of discretion:

The trial court noted that plaintiff had established that condemned property “would be converted to a public street, meaning it would be publicly owned and controlled.” Thus, the issue became “whether the acquisition is necessary for a public purpose.” The trial court acknowledged that a taking could be justified by the future needs of the condemnor. However, it also noted that the existence of detailed development plans  was a factor that a court could consider in determining that the taking served a legitimate public purpose and that such plans were absent here. Moreover, it noted that an annexation agreement between plaintiff and adjoining landowner A&A Conte required A&A Conte to construct a road on the land plaintiff was seeking to condemn. Given the absence of any concrete development plans and the existence of plaintiff’s contractual obligation to A&A Conte, the trial court found that there was no public purpose underlying the proposed condemnation and that the road plaintiff intended to build would serve only a single private party. The trial court therefore granted defendant’s traverse and motion to dismiss.

Slip op. at 3.

The Appellate Court affirmed:

  • These issues are fact-bound. (“Both parties can muster evidence in support of their respective positions.” Slip op. at 4.)
  • The court noted that “[r]ecognizing the difference between a valid public use and a sham can be challenging.” Slip op. at 5. Boy howdy! 
  • Both parties put in evidence, and it was a close call.
  • The law in Illinois says that future public use can be a public use (law), provided there’s a plan that the taking is a part of (fact).
  • But unlike the Illinois Supreme Court case that held that (currently being challenged in SCOTUS), here there was no plan (fact).
  • Moreover, there was a contract between the city and the developer, which cuts against public use, even though the relationship was not as symbiotic as in other cases where the takings were invalidated (SWIDA). 
  • In the end, “[t]he trial court … resolved both factors [plan and relationship] in the defendant’s favor.” Slip op. at 8.
  • In these fact-bound matters, even if the evidence is close, an appellate court is going to defer to the trial court’s evaluation of things like weight and credibility. Slip op, at 9.
  • “Here, in light of the totality of the evidence in the record, the trial court determined that it did not, and we cannot say that an opposite conclusion to the one reached by the trial court is clearly apparent.” Slip op. at 11.

We wish this one was published, not a Rule 23 opinion. More courts should view these issues the same way (questions of fact, not resolved by blanket legal rules).

Will the city take this further up the chain? We’ll let you know if it tries.

City of West Chicago v. Pietrobon, No. 2-20-0174 (Ill. Ct. App. Apr. 28, 2021) (unpub.)