Opinion
No. 2-13-1251
09-22-2014
DWG CORPORATION, SADDLEBROOK FARMS, LLC, SADDLEBROOK FARMS PHASE 5C, LLC, and SADDLEBROOK FARMS PHASE 5F, LLC, Plaintiffs-Appellants, v. THE COUNTY OF LAKE, Defendant-Appellee.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Lake County.
No. 12-L-0371
Honorable Christopher C. Starck, Judge, Presiding.
JUSTICE HUTCHINSON delivered the judgment of the court.
Presiding Justice Burke and Justice Birkett concurred in the judgment.
ORDER
¶ 1 Held: The relocation of Peterson Road 400 feet to the southeast, with plaintiffs' property retaining the same access, did not materially impair plaintiffs' property despite plaintiffs' property now being located on a secondary access road. Therefore, we affirmed the trial court's determination to grant defendant's motion for summary judgment.
¶ 2 In 2012, plaintiffs, DWG Corporation, Saddlebrook Farms, LLC, Saddlebrook Farms Phase 5C LLC, and Saddlebrook Farms Phase 5F, LLC filed a complaint for damages against defendant, the County of Lake. Plaintiffs alleged that, as a result of defendant's construction
project, a property development owned by plaintiffs for residential and commercial use no longer had frontage or direct access from Peterson Road in the Village of Round Lake. According to plaintiffs, the property incurred damages.
¶ 3 In 2013, the trial court granted defendant's motion for summary judgment after concluding that defendant's construction project did not result in plaintiffs' property being materially impaired. Plaintiffs now appeal, contending that the trial court erred in concluding their property did not suffer a material impairment. We affirm.
¶ 4 The pleadings, affidavits, depositions, and admissions on file reflect that plaintiff DWG Corporation is a property developer based in Winnetka. Plaintiffs Saddlebrook Farms, LLC, Saddlebrook Farms Phase 5C, LLC, and Saddlebrook Farms Phase 5F, LLC are Delaware corporations who are primarily owned by DWG. Defendant Lake County is a body politic.
¶ 5 Plaintiffs own a 686-acre parcel of property located in the Village of Round Lake Park (the village). The property is located north of Peterson Road, west of Alleghany Road, and east of Route 60. The village approved the property as a planned-unit development to include both commercial and residential uses. The village approved the property to include 4,800 age-restricted residential units and a 40-acre commercial area, as well as various spaces, lakes and recreational amenities. The property's commercial area was located at the intersection of Peterson Road and Route 60.
¶ 6 Thereafter, defendant undertook a construction project which relocated Peterson Road approximately four hundred feet to the southeast. The original Peterson Road was renamed Behm Lane. Defendant removed a portion of Behm Lane, located east of its former intersection with Route 60, and replaced that portion with a dead-end cul-de-sac.
¶ 7 Prior to the construction project, primary access to the property was via Peterson Road, which had a "T" intersection with Saddlebrook Road, located inside the property. Vehicles could access Peterson Road directly from Route 60. Following the construction project, and as a result of the cul-de-sac, vehicles could no longer access Behm Lane (formerly Peterson Road) via Route 60. Instead, vehicles must use the relocated Peterson Road, turn left or right (depending on the direction of travel) onto a connector road, and turn left on Behm Lane to access Saddlebrook Road.
¶ 8 On May 14, 2012, plaintiffs filed a single-count complaint against defendant. Plaintiffs alleged that defendant's relocation of Peterson Road materially impaired access to the property and, therefore, constituted a compensable "damaging" pursuant to article 1, section 15 of the Illinois constitution. Plaintiffs alleged that the property is more difficult to locate because it was no longer visible from a major highway, and that access to and from Route 60 "is both more convoluted and farther away (more than 3000 [feet]) than it was before [defendant's] construction project."
¶ 9 On August 16, 2013, defendant filed a motion for summary judgment. Defendant argued that, pursuant to Department of Public Works and Buildings v. Wilson & Co., 62 Ill. 2d 131 (1957), damages that resulted from the state exercising its police power to regulate and control traffic, as opposed to damages that resulted from a taking or from a material impairment of existing access rights, are not compensable. Defendant argued that, while the construction project resulted in a changed traffic pattern, it did not impair access to the property. In response, plaintiffs argued that defendant's relocation constituted a material impairment. Plaintiffs noted that vehicles no longer have access to the property directly from Peterson Road and that Behm Lane is a double dead-end road without direct access to Route 60. Plaintiffs further argued that,
once the trial court makes the threshold determination that a property owner's access to property has been materially impaired, a jury should determine the appropriate damages.
¶ 10 On October 1, 2013, after entertaining oral arguments, the trial court granted defendant's motion for summary judgment. The trial court concluded that it did not "believe that [the] new access point is any different than the actual access point that the landowners had to start with." The trial court opined that "there might be a little more of a circuitous route to get to Route 60, but it's not substantially different *** as far as distance goes." Plaintiffs timely appealed after the trial court denied their motion to reconsider.
¶ 11 On appeal, plaintiffs contend that the trial court erred in granting defendant's summary judgment motion. Plaintiffs argue that access to the property has been materially impaired as a result of Peterson Road being relocated. Plaintiffs further argue that they are entitled to compensation due to the physical changes to the roadway configuration and the resulting practical impact.
¶ 12 The sole function of a trial court in acting upon a motion for summary judgment is to determine whether a material question of fact exists. Fritzsche v. LaPlante, 399 Ill. App. 3d 507, 516 (2010). Summary judgment is proper when the pleadings, depositions, and affidavits on file demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Nelson v. Aurora Equipment Co., 391 Ill. App. 3d 1036, 1038 (2009). In reviewing a grant of summary judgment, we must construe the pleadings, depositions, admissions, and affidavits strictly against the moving party and liberally in favor of the nonmoving party. Mills v. McDuffa, 393 Ill. App. 3d 940, 948 (2009). Summary judgment is a drastic means of disposing of a case and should not be granted unless the movant's right to
judgment is clear and free from doubt. Id. at 948. We review de novo an order granting summary judgment. Nelson, 391 Ill. App. 3d at 1038.
¶ 13 Section 15 of article I of the 1970 constitution provides: "private property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law." Ill. Const. 1970, art. I, § 15. The words "or damaged" make it possible for a property owner to be compensated " 'for destruction or disturbance of easements of light and air, and accessibility, or of such other intangible rights as he enjoys in connection with, and as incidental to, the ownership of the land itself.' " Department of Transportation v. Rasmussen, 108 Ill. App. 3d 615, 621 (1982) (quoting Horn v. City of Chicago, 403 Ill. 549, 554-55 (1949)). Thus, where a property owner's right of access has been materially impaired by State action, the owner is entitled to compensation. Streeter v. County of Winnebago, 85 Ill. App. 3d 116, 119 (1980). Whether a property owner's access has been materially impaired is a question of law. Department of Public Works and Buildings v. Wilson & Co., Inc., 62 Ill. 2d 131, 141 (1975).
¶ 14 In Wilson, the State sought to acquire part of a tract of land that consisted of 5.24 acres, with 151.2 feet of frontage abutting the north side of Roosevelt Road in Du Page County. Id. at 134. Roosevelt Road, via the frontage, provided the only access to the property from a public street. Id. The State sought to acquire land in connection with constructing an exit ramp from Route 83 to Roosevelt Road. Id. The project would have eliminated direct access from Roosevelt Road to the property, but the State proposed to construct a new paved frontage road on the property. Id. The new frontage road would run west on the defendant's remaining property to Monterrey Avenue, 85 feet north of its intersection with Roosevelt Road. Id. at 134-35. The trial court awarded the defendant $85,000 in damages. Id. at 136.
¶ 15 On review, our supreme court noted that "[n]ot every limitation of access is compensable." Id. at 140. In discussing prior cases, the Wilson court noted that a property owner is not entitled to damages that resulted from the vacation of a street in a block other than in which his property is located where the free access is not impaired; a property owner has no property right in the traffic flow on a street that abuts his property, and the owner has not suffered a material impairment when public improvements divert traffic to other avenues. Id. The Wilson court emphasized "[t]he significance of the retention of direct access." See id. The Wilson court opined:
"The decisions thus indicate that the 'right of access' with which we are here concerned is a private property right inherent in ownership of real estate abutting a highway. When such access is taken or materially impaired by action of the State[,] the property owner is entitled to compensation. If, however, there is no physical disturbance of the right of access vis-à-vis the abutting highway, then any damages which may result to the property owner as a consequence of a change of use of the highway by the public are damnum absque injuria even though such damages may be very substantial. This distinction can be illustrated by a rather common situation which occurs when a limited-access highway is constructed in a new location leaving a property owner's place of business still fronting as it was before on the old highway which has become a secondary road or access road for a new highway. In such a case there can be no question that serious economic consequences may result to the property owner, and it is quite possible that the highest and best use of his property would be changed. The consequential damages which occur do not result from any taking or material impairment of existing
access rights but solely from the State's exercise of police power to regulate and control traffic on the highways." Id. at 140-41.
The supreme court held that the "inevitable conclusion" in the case before it was that the partial taking resulted "in a material impairment of existing direct access *** ." Id. at 145.
¶ 16 Following Wilson, this Court considered whether the State materially impaired a gas station owner's property in Rochelle. In Rasmussen, 108 Ill. App. 3d at 615, the defendants owned property abutting Route 51. Originally, Route 51 ran directly past the defendants' property to the east with no impediment to traffic flow from both the north and south. Id. at 620. The State filed a petition to condemn a three-year construction easement along the eastern edge of the defendants' property. Id. at 618. The State constructed an overpass that elevated Route 51 over a distance stretching from approximately 1 block north of the defendants' property to approximately 900 feet south of their property. Id. at 615. While the defendants' property retained direct access to Route 51, the construction restricted travel to and from the defendants' property from both the north and south, which included the closing of a railroad crossing to the south that resulted in a dead end. See id. at 620-21. Thus, before the construction, traffic exiting the eastern portion of defendants' property had direct access to Route 51. Afterwards, vehicles exiting the defendants' property to the east had to drive north to Lincoln Avenue, proceed one block west, then north to a connecting street, and back east again to gain access to Route 51. Id. at 621. Vehicles exiting the property to the east could no longer proceed south on Route 51, but instead, had to head north. Further, vehicles which could have approached the property from the south on Route 51 were no longer able to do so. Rather, those vehicles were required to drive north and turn back south to gain access to the property. Id. The trial court had entered a
judgment in the defendants' favor and awarded them in excess of $30,000 in damages. Id. at 618.
¶ 17 On appeal, the reviewing court rejected the State's argument that mere circuity of travel, shared by the public generally, resulted from the construction of the overpass and therefore was not compensable. The court emphasized:
"Of particular importance to us in this case is the fact that it is not merely the public use of a highway which has changed; the physical characteristics of the adjoining highway in relation to the subject property have substantially changed as well. The effect of the reconstruction of Route 51 parallels that of erecting barricades along the railroad right-of-way and the north line of Lincoln Avenue. The road along the property's eastern boundary is blocked at one end and open, yet redundant with the northern boundary, on the other." Id. at 622.
The court concluded that, although the new overpass did not physically eliminate the defendants' access to Route 51, it had rendered that access "redundant and virtually valueless." Id. at 623. The court concluded that the "practical difference" to the defendants' property was "significant and material," and that the defendants were entitled to recover damages. Id. at 624.
¶ 18 In this case, we agree with the trial court that the relocation of Peterson Road 400 feet to the southeast, constructing a connector road, renaming the old Peterson Road "Behm Lane," and installing cul-de-sacs at each end of Behm Lane did not result in a material impairment. We find significant differences between this case and both Wilson and Rasmussen. In Wilson, the defendant's property no longer had direct access to and from Roosevelt Road, with the new access point being on an entirely different road, Monterrey Avenue. Wilson, 62 Ill. 2d at 135. Conversely, here, plaintiffs still had the same access point as before the relocation of Peterson
Road. The circumstances here are directly consistent with the hypothetical put forth by the Wilson Court, i.e., that constructing a new limited-access highway in a new location and turning an old highway into a secondary road, with the property now fronting the secondary road, is not compensable. Id. at 141. More succinctly, in Wilson, Roosevelt was not relocated, with the defendant's retaining the exact same access to the exact same road, which had turned into a secondary road.
¶ 19 Further, we believe that the impairment to the defendants' property in Rasmussen was much more significant compared to the impairment here. In that case, the new construction did not merely relocate Route 51, rendering the old portion of Route 51 as a secondary road under a new name. Instead, as the court in Rasmussen noted, not only did the public use of Route 51 change, "the physical characteristics of the adjoining highway in relation to the subject property have substantially changed as well." Rasmussen, 108 Ill. App. 3d at 615. That is, Route 51 became an elevated overpass from approximately 900 feet south of the property to approximately 1 block north. Conversely, in this case, no such substantial change in the physical characteristic of Peterson Road occurred. Rather, Peterson Road was merely relocated 400 feet to the southeast, while still retaining direct access to Route 60, as it had before being relocated.
¶ 20 Rasmussen looked to cases that dealt with street obstructions, vacations, dead ends and blind courts as relevant authority. Id. at 622 - 23. The court held that although the improvement did not physically eliminate the defendants' access to old Route 51, it "rendered that 'access' redundant and virtually valueless." Id. at 623. Significantly, as pointed out by our defendant, the improvement in Rasmussen reduced the points of access to the property. In our case, the effect of relocating Peterson Road neither placed plaintiffs' property on a blind court, nor did it reduce points of access to the property. Again, we find the circumstances here analogous to the
hypothetical outlined by our supreme court in Wilson, where a new limited-access highway is constructed that left the property fronting an old highway that had turned into a secondary road for a new highway. See Wilson, 62 Ill. 2d at 141.
¶ 21 Finally, we note that plaintiffs' property never had direct access to Route 60. Therefore, plaintiffs' access to Route 60 was not materially impaired by the relocation of Peterson Road. See Street v. City of Winnegabo, 85 Ill. App. 3d 116, 120 (1980) (holding that summary judgment in the defendant's favor was proper after noting that plaintiffs' direct access to Harrison Road was unaffected by the relocation of Bell School Road, and therefore, not materially impaired).
¶ 22 In sum, the relocation of Peterson Road 400 feet to the southeast, with plaintiffs' property retaining the same access to the old Peterson Road, did not materially impair plaintiffs' property despite the old Peterson Road becoming a secondary access road renamed Behm Lane. Therefore, defendant is entitled to summary judgment.
¶ 23 The judgment of the circuit court of Lake County is affirmed.
¶ 24 Affirmed.