September 12, 2018
Author: John W. Damisch
Organization: Damisch & Damisch Ltd.
I. Condemnation Comes in Contact with Municipal Contiguity
A. A platted subdivision lot is more valuable than an acre of soy beans but it must be contiguous to a municipality
B. In condemnation if land being condemned is a soy bean field there must be a Reasonable Probability that the soy bean field might have been annexed and rezoned into a municipality on the date of the filing suit to condemn. (See: Lake County FPD v. Reliance Standard Life Ins 29 Ill. App. 3, 145 (1975)….(Must be Reasonable Probability not speculation).
1. If the field is already contiguous there is usually many other annexations that show the contiguous land could be added to the municipality.
2. If the land is not contiguous and no other land brings about contiguity there is no legal reasonable probability that the subject land could be annexed and rezoned. The soy bean field is valued as farm land and not city lots.
3. If there is intervening land that is not contiguous maybe the land could be considered reasonably probable that the condemned soy bean field could be annexed ( In Lake County PD v. Reliance Standard conversation and consideration of annexations was admissible in an attempt to show Reasonableness and not speculation). (See also Lake County FPD v. Bank & Trust of A.Hts. ( where held no reasonable probability of development due lack of sewer. No proof was permitted in an attempt to show that a stand alone sewer plant could serve the property.
a. If there is an intervening forest preserve there might be a reasonable probability of the soy bean field being annexed if the soy bean field had additional owners join in the proposed annexation.
i. The Department of Public Works et.al. v.s Kelly, 40 Ill. App.3d 396 held that where there was an intervening forest preserve between the condemned property and the municipality, there was no reasonable probability of annexation because the proposed subject property needed a “majority vote” of the property owners to seek annexation. The forest preserve could not vote and the subject property being only one vote a one vote is not a “majority” hence no qualification under the Illinois statute.
ii. Targeted proposed condemnee should consider seeking abutting contiguous property and at least two other real estate owners to join him/her in seeking annexation;
iii. Seek to have the municipality adopt an ordinance of desirability of annexing contiguous along with the non-contiguous soy bean field.
C. The Importance of Starting Early.
1. As soon as Client suspects that his soy bean field will be condemned he/she should start building a file with dates, exhibits, municipal recorded contacts all towards building a reasonable probability of annexation and rezoning.
a. Consult with: Land planner, engineer, surveyor, municipal mayor and trustee; Put all contacts in writing and submitted to municipality;
b. Maintain a diary of all dates, person contacted that may lead to a case of contiguity either by request from land owners or by a desire of the municipality;
c. Municipal services. Are there sufficient municipal sewer and water available to service the proposed developed soy bean acreage? An engineer should be considered to be on the team;
d. Traffic pattern. Does the proposed plat of subdivision to be annexed comply with municipal traffic patterns and extensions? The municipal traffic engineer might be consulted;
e. Village manager should be on the list of consultees. Would the Village Manager support the proposed plan?
1. Condemnor (Public Body) will resist the Reasonable Probability that the soy bean could ever be contiguous, annexed and rezoned to a platted subdivision;
a. Not a chance that there is Reasonable or Probably that this soy bean field could ever be annexed to this municipality;
b. The claim others would join to make a “majority” of those seeking annexation is a “ruse” and “ploy” to get around the statute;
c. Mayor Richard J. Daley annexed O’Hare International Airport to Chicago securing contiguity by annexing Route 72 leading several miles from Chicago’s city limits to vacant truck gardens farm from the northwest corner of Chicago to what is now O’Hare. Illinois was changed so that would never happen again. (an exception was City of Woodstock annexed part of Route 14 details are sketchy but annexation held with additional annexations).
2. Motion in Limine.
a. Seek an early determination of your right of contiguity. Your appraisal of the subject property makes a difference in valuation
i. If no Reasonable Probability of Annexation it is better to determine that early than later. The valuation by both your appraiser and condemnor’s appraisal will be that the highest and best use of the soy bean field is Agriculture and for the growing of corn and beans;
ii. If there is no contiguity the showing of Reasonable Probability of annexation is extremely difficult and many appraisers will not consider that there is a reasonable probability…but you may be able to show reasonable probability by showing plans, conferences with the municipality and with other contiguous owners.
iii. Plan B. You should have a back up plan if the court denies there is a reasonable probability of annexation and rezoning. To protect your record an offer of proof should be given….with all the written proof and an offer of proof of the appraisal at the highest and best use. The appraiser must be then prepared to testify as to the value without the annexation…
3. OTHER ISSUES OF PLATS AND SUBDIVISIONS
A. Petitions for Modification before Zoning Boards of Appeals. Petitions are to modify the conditions of the plat as it relates to a single lot;
i. Side and rear yard variations
j. Other zoning modifications
a. How to present them before the ZBA
b. How to resist modifications before the ZBA
4. DISCONNECTION OF LAND FROM A MUNICIPALITY (La Salle National Bank v. The Village of Mettawa, 249 Ill. App. 3d 556 (1993); Ill Municipal Code Ch.. 24, Sec. 7 For Disconnection:
a. At least 20 acres
b. On the border of town;
c. Will not isolate any other part from town;
d. Growth prospects will not be impacted;
e. No disruption of municipal services;
f. Will not unduly affect tax revenue.
Conclusion: If you do not have 20 or more acres on the edge of town do not consider disconnection. If you have 20 acres on the edge of town in one of the high rent municipalities be prepared for a long expensive fight in an attempt to get out of town.