Ann Maher Feb. 3, 2014, 11:59am

The Illinois Department of Transportation (IDOT) made a good-faith attempt to purchase less than an acre of land from Petroleum Fuel and Terminal Company prior to condemning it, according to the Fifth District Appellate Court.

The court ruled in a dispute over .7208 acres of land that IDOT needed to expand Illinois Route 3 in East St. Louis in conjunction with the Stan Musial Veterans Memorial Bridge being built over the Mississippi River.

(The bridge will be open for public viewing this Saturday from noon to 4 p.m. and will open to traffic for the first time on Sunday, Feb. 8).

In a Rule 23 decision entered Jan. 29, the Court affirmed St. Clair County Associate Judge Ellen Dauber who granted quick taking of the land located between the Eads and Martin Luther King Bridge with compensation in the amount of $63,000.

Petroleum Fuel and Terminal Co. appealed Dauber’s June 13, 2013 decision, raising the issue of whether IDOT engaged in good-faith negotiations.

Justice Richard Goldenhersh, writing for the panel, held that “the record indicates that IDOT did not approach negotiation in a take-it-or-leave-it fashion.”

Justices Melissa Chapman and James Wexstten concurred.

According to the appellate court order, IDOT at first made an offer of $33,000 for the property on Aug. 29, 2012. When the defendant’s attorney did not respond by Oct. 12, 2012, the matter was referred to condemnation proceedings, the decision states.

The amount paid for the land was nearly double what was initially offered because an updated appraisal reflected a higher value, according to the decision.

In finding in favor of IDOT, Goldenhersh cited Forest Preserve District of Du Page County v. First National Bank of Franklin Park, a decision which holds that an offer congruent with an appraisal is sufficient to establish good faith on the part of a taking authority.

In Franklin Park, a county forest preserve district sought condemnation of approximately 204 acres which included a golf course. The District obtained an appraisal estimating the value at $10.2 million, and made an offer of $9.27 million with 10 days to respond before proceeding to condemnation.

The chief negotiator for the District testified that the practice of the District was to make an initial offer 10 percent below the appraisal value and that he had the authority to go to 10 percent above the appraised value without any further approval by the board, the decision states. A few weeks after making the initial offer, the original appraiser verbally updated the value to $11.2 million, but a separate appraiser retained by the District placed the value at $8.99 million. The owners rejected the District's $9.27 million offer and did not respond with any counteroffers. The District sought condemnation.

“In many ways, IDOT's claim of good-faith bargaining is stronger than the District's in Franklin Park,” Goldenhersh wrote.

“The variance of close to $900,000 between the preliminary estimate and updated appraisal in Franklin Park dwarfs the $30,000 difference between appraisals in the case at hand. In contrast, defendant's case rests not on the sum of the variance, but its ratio. IDOT's updated appraisal of $63,000 nearly doubled the $33,000 estimate of initial appraisal issued just a few months earlier.

“Nonetheless, IDOT presented testimony from its appraiser that the initial assessment used comparables of land-only sales of small acreage because the taking was minor and that once a complaint was filed an updated appraisal based on a proportional valuation of comparable sales of multiacreage property, including improvements in the form of structures, was conducted in contemplation of litigation.

“In Franklin Park, the District's offer was seen as bona fide even though it was based on a preliminary estimate that would not likely have met the rigors of proof for establishing just compensation in condemnation proceedings. Likewise, the record here does not suggest any bad faith by IDOT in obtaining the initial appraisal. Given the small scale of the property sought by IDOT, the practice seems prudent.”

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