Aurora Beacon-News
March 23, 2006
Landowners make case to Illinois Supreme Court
By Matt Hanley
STAFF WRITER
SPRINGFIELD — In the cozy and ornate room that houses the
Illinois State Supreme Court, the argument over the Prairie Parkway
came down to an unlikely test case: sun rooms.
Specifically, if someone who owned land in the proposed path of the highway wanted to build one of these hypothetical sun rooms, could the Illinois Department of Transportation force them to sell their property?
And if the land can be seized over a new sun room, is that unfair?
Wednesday morning, attorneys representing IDOT and the landowners who oppose the highway that would connect Interstates 80 and 88 made their best case to the seven judges on the state's highest court.
St. Charles attorney Tim Dwyer, arguing on behalf of the landowners, appealed the case on two constitutional complaints: separation of powers and due process.
That second condition — due process — is where the sun rooms became part of the argument.
According to Dwyer, when IDOT marked 193 land parcels as possible roadway sites, then limited the owner's rights to build on that land, it went beyond eminent domain laws. In typical eminent domain cases, the government must show a public need for taking the land, and the owner must be fairly compensated.
But when IDOT laid out the 35-mile highway path through Kane, Kendall and Grundy counties, the state required all property owners to notify it if they make any substantial change to the property, which would include the infamous sun room.
"You submit to IDOT that you want to add a sun room, and they can take your house," Dwyer said. "It's quite unusual."
Dwyer contended IDOT is blocking the landowner's right to develop and profit from their land. And, he emphasized, it's being done without the state outlining any criteria for when or why it might buy land.
Obviously, plans for a golf course would force IDOT to take action, but what about smaller projects? That cloud looms over the head of landowners, Dwyer said, and violates their right to due process.
"There's no criteria; there's no appeal process; there's no give and take," said Dwyer, who was arguing his fourth case before the state Supreme Court. "It's their sole discretion."
Chief Justice Robert Thomas questioned IDOT's barometer for when it
might decide to buy land. Was a sun room enough, he wondered?
"If there's a public need for their land, eminent domain is coming,"
said Assistant Attorney General Robert Elitz, representing IDOT.
But, Elitz stressed, "it's a 'please;' it's not a 'must' — it's a negotiation."
Dwyer argued that restricting property development based on a plan that does not have a budget or definite path is unjust.
"This is a case where they're bullying people in a proposed roadway, which may or may not happen," Dwyer said.
Wednesday's debate could be the final step in a long legal battle that's gone on since plans for the highway were introduced in 2002.
As the case moved through circuit court, then appellate court, engineers since have settled on a route and set aside funding for some of the preliminary steps in building the road.
It could be months before the Supreme Court issues its decision.
03/23/06