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Elburn Herald
January 15, 2003

Parkway opponents lose battle

Judge dismisses suit against IDOT, gives 30 days to amend complaint.

by Susan O'Neill

Opponents to the Prairie Parkway called the recent Kendall County court decision to dismiss their lawsuit against the Illinois Department of Transportation (IDOT) a "skirmish" in their battle against the project.

The Prairie Parkway is a proposed 33-mile highway that would connect Interstates 80 and 88.

The 56 plaintiffs named in the suit, filed in September, claimed that the statute IDOT used to site the Parkway corridor is unconstitutional.

IDOT Secretary of Transportation Kirk Brown announced last July that IDOT was recording a 400-foot wide corridor stretching 36 miles from Interstate 80 near Minooka to Interstate 88 east of Kaneville. As a result of the IDOT designation, the owners of the 193 property parcels, mostly farmland, crossed by the corridor cannot make improvements to their property without first seeking the state's approval. If the state denies the owner's request, it must then begin proceedings to acquire the property.

The plaintiffs stated that the recording process is unfair, and places a restriction on their property rights.

"The state is imposing an unpaid option on the property, and in some cases without them having any notice whatsoever," said Tim Dwyer, attorney for the property owners. "Taking or not, that's just not fair."

IDOT filed a motion in November to dismiss the suit, stating that the facts provided in the lawsuit "do not demonstrate a taking by the government and that therefore the plantiffs (property owners) have not been injured."

"Of course we were disappointed," said Marvel Davis, one of the affected property owners, "but the word defeated never enters our vocabulary. We do intend to respond, and I hope that we prove our case. We still can challenge this roadway at a variety of levels, and we intend to do so."

Dwyer explained that the issue is broader than whether individual properties have been taken by the state.

"The state is focusing solely on the taking issue, and is acting as if there is not a taking, that the constitutional issues don't come into play. The issues are broader than that," he said.

Meanwhile, IDOT attorney Richard Christopher explained that the court decision shows that nothing improper has occurred.

"First of all, we're pleased the judge (Leonard Wojtecki) understood our argument and he bought it," Christopher said. "IDOT has not hurt anybody. All we did was file a map."

Christopher noted the judge's opinion that the property owners did not show sufficient facts demonstrating they were financially damaged.

"If we start interfering with people's right to develop their property, that would be a different story," Christopher said.

He went on to explain that if a property owner wished to make an improvement on his or her property, IDOT would have to make a decision within three months to either buy the property or say it doesn't have the money for the purchase. If IDOT decides against purchasing the property, the owner would be free to make that improvement.

It's the option to purchase based on the owner's decision to develop his or her property that has caused the property owners damage, Dwyer explained.

"It's our view that there has been an impact on property values and on people's property rights, so we need to present that more clearly," Dwyer added. "Common sense tells you if there's a restriction on the property, that (action) diminishes its value compared to an unrestricted piece of property."

Davis explained that the naming of the corridor already has influenced the way peoples' property can be handled, but that Wotjecki said they didn't provide enough anecdotal information to show that. He has given the landowners 30 days to amend their complaint and resubmit it.

"We are now assembling anecdotal records so we can respond to him," Davis

said. "We won't have a lot of anecdotal examples, but we will have some."

Davis said the plaintiffs can share information on the properties that would have sold in the area but have fallen through. She told of a neighbor's granddaughter who was going to build a house on a nearby property, and had even planted trees on the property. Then she found out about the plans for the Parkway.

"She sold that land to a neighbor and dug up all her trees," Davis said. "She didn't want to build a house if it would be right next to a super-highway."

Davis explained, however, that she and the other plantiffs are limited to examples that are in the corridor, and not just close to it.

"Unfortunately, if you're not directly within the corridor, that's not good enough," she said.

Davis said that knowing a property will be turned into a highway at some point directly affects that property's value.

"If you know that your house will be demolished, what does that do to the property value of your house," she asked. "Who's going to want to buy it? Also, if you want to build an addition to your house, you can't do it without going to IDOT.

She added, "He's (the judge has) got to know what a burden that places on that homeowner."

Jan Strasma, head of the grassroots organization opposing the Parkway, Citizens Against the Sprawlway, said the lawsuit was one aspect of a larger issue.

"We'll continue to oppose the state on all fronts, not just this issue," Strasma said. "We'll be looking over the state's shoulder to make sure that they are honest and thorough in studying the needs, and that they consider all the options, not just the outer beltway."

Dwyer said the legality of the statute allowing IDOT to record the property has yet to be debated.