Aurora Beacon-News
October 6, 2005
¥ Rejected three times: Plaintiffs contest power to regulate, take property
By David Garbe
STAFF WRITER
The Illinois State Supreme Court this week agreed to consider a lawsuit filed by homeowners on the proposed path of the Prairie Parkway who say the state's efforts to limit development on the highway are unconstitutional.
The suit targets the corridor of protection that the Illinois Department of Transportation established in 2002.
Property owners are required to notify the state if they intend to change anything that lies inside the corridor, a 400-foot-wide swath of rural land running between Interstate 88 and Interstate 80, in Kane and Kendall counties. IDOT can then either permit the changes or use eminent domain to buy the property.
"The benchmark (for state seizure of private property) then becomes what the owner wants to do with the property rather than what the state intends to do with the property," said Tim Dwyer, a St. Charles attorney who is representing the landowners.
Eminent domain should be allowed only when the state can demonstrate a public need for property, the suit argues, not to safeguard a potential public need.
Of the 196 properties affected by the protected corridor, 56 owners have joined in the lawsuit.
The suit was first filed in 2003 in the Kendall County Circuit Court, which dismissed the case three separate times after finding that IDOT has the right to establish the protected corridor and that the corridor did not financially harm the landowners.
When Dwyer appealed the court's final decision, the state appellate court upheld the lower court's ruling.
This week, the State Supreme Court said that it would hear Dwyer's latest appeal. Dwyer said he expected the case would come before the state's highest court sometime in early 2006.
The Supreme Court's acceptance coincides with IDOT's announcement this week that it has concluded that a major new freeway will indeed be built on or near the original protected corridor, although the route will be subjected to several years of further study before an exact footprint for the road is determined.
IDOT officials said that the protected corridor was necessary to keep at least one potential route for the road from being permanently blocked by private developments, which can be built much faster than a major new road.
Illinois law has granted IDOT the power to establish protected corridors since 1967. Although not common, the measure has been used multiple times since then, said Prairie Parkway project manager Rick Powell, including for another project currently being planned near St. Louis.
Neither Powell nor Dwyer have been able to find evidence that the corridor protection statute has been legally challenged in the past.
Powell said that, so far, IDOT has purchased three properties along the protected corridor in response to landowners who were planning to make improvements.
Two of the properties were farms near Minooka, and were purchased by IDOT to prevent the owner from selling the land to a subdivision developer.
The other property was a residential lot on the Fox River between Plano and Yorkville, and IDOT purchased it when the owner requested permission to build a home on the corridor.
In a "handful" of other cases, property owners have asked and been granted permission to go ahead with private improvement plans that IDOT felt would not interfere with the potential for road-building.