2021 IL App (2d) 200174-U No. 2-20-0174 Order filed April 28, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ____________________________________________________________________________
THE CITY OF WEST CHICAGO, a ) Appeal from the Circuit Court municipal corporation, ) of DuPage County. ) Plaintiff-Appellant, ) ) v. ) No. 16-ED-27 ) VIRGINIA R. PIETROBON AS TRUSTEE ) OF JOHN F. PIETROBON FAMILY TRUST, ) DATED DECEMBER 19, 1990, AS TO AN ) UNDIVIDED 22.93 PERCENT INTEREST ) and VIRGINIA R. PIETROBON AS ) TRUSTEE OF THE JOHN F. PIETROBON ) MARITAL TRUST DATED DECEMBER 19, ) 1990, AS TO AN UNDIVIDED 77.07 ) PERCENT INTEREST, UNKNOWN ) OWNERS, and NON-RECORD ) CLAIMANTS, ) Honorable ) Kenneth L. Popejoy, Defendants-Appellees. ) Judge, Presiding. _____________________________________________________________________________ JUSTICE HUDSON delivered the judgment of the court. Justices Hutchinson and Brennan concurred in the judgment.
ORDER ¶1 Held: The trial court’s finding that defendant-trustee successfully rebutted plaintiff’s prima facie case that condemnation was authorized was not contrary to the manifest weight of the evidence. 2021 IL App (2d) 200174-U
¶2 I. INTRODUCTION
¶3 Plaintiff, the City of West Chicago, appeals an order of the circuit court of Du Page County
granting the traverse and motion to dismiss of defendant Virginia R. Pietrobon (as Trustee of the
John F. Pietrobon Family Trust, dated December 19, 1990, as to an undivided 22.93 percent
interest, and as Trustee of the John F. Pietrobon Marital Trust dated December 19, 1990, as to an
undivided 77.07 percent interest). For the reasons that follow, we affirm.
¶4 II. BACKGROUND
¶5 This case arises out of an attempt by plaintiff to condemn a strip of defendant’s property
to construct a city street. Previously, plaintiff entered into an annexation agreement with a
landowner that neighbored defendant’s property, A&A Conte Joint Venture Limited Partnership
(A&A Conte). As part of the agreement, the neighboring landowner was to construct a street on
the border between it and defendant’s property. At the time this agreement was consummated, it
was believed that the roadway upon which the street was to be constructed was public land.
However, it was later learned that the land in question actually belonged to defendant, despite it
being referred to on various documents as Reque Road. Plaintiff then sought to acquire a right of
way, ultimately via its power of eminent domain.
¶6 This is the second time that this case has come before this court (the evidence presented
during the proceedings below is discussed in detail in our earlier disposition and will not be
repeated here (See City of West Chicago v. Pietrobon, 2019 IL App (2d) 180850-U, ¶¶ 3-34)).
During the earlier appeal, we held that the trial court erred in determining that plaintiff had not set
forth a prima facie case authorizing the proposed taking. Id. ¶ 42. We remanded the case so that
the trial court could clarify its findings regarding whether defendant fulfilled its burden of rebutting
plaintiff’s prima facie case. Id. ¶ 46.
-2- 2021 IL App (2d) 200174-U
¶7 On remand, the trial court held that defendants “have met their high burden of showing that
the City has abused its discretion in condemning [defendant’s property known as] Reque Road.”
It explained its rationale via a letter opinion. The trial court noted that plaintiff had established
that condemned property “would be converted to a public street, meaning it would be publicly
owned and controlled.” Thus, the issue became “whether the acquisition is necessary for a public
purpose.” The trial court acknowledged that a taking could be justified by the future needs of the
condemnor. However, it also noted that the existence of detailed development plans was a factor
that a court could consider in determining that the taking served a legitimate public purpose and
that such plans were absent here. Moreover, it noted that an annexation agreement between
plaintiff and adjoining landowner A&A Conte required A&A Conte to construct a road on the land
plaintiff was seeking to condemn. Given the absence of any concrete development plans and the
existence of plaintiff’s contractual obligation to A&A Conte, the trial court found that there was
no public purpose underlying the proposed condemnation and that the road plaintiff intended to
build would serve only a single private party. The trial court therefore granted defendant’s traverse
and motion to dismiss. This appeal followed.
¶8 III. ANALYSIS
¶9 The central question presented in this appeal is whether the trial court properly determined
that defendant met her burden of showing that the taking at issue in this case was not legally
justified. As we determined in the previous appeal in this case, plaintiff established a prima facie
case authorizing the taking of the subject property. See City of Chicago v. Midland Smelting Co.,
385 Ill. App. 3d 945, 965 (2008). By introducing the ordinance authorizing the taking, plaintiff
raised a presumption that the taking was valid. See Enbridge Pipeline (Illinois) v. Murfin, 2020
IL App (5th) 160007, ¶ 84. Therefore, the burden shifted to defendant to establish that the
-3- 2021 IL App (2d) 200174-U
condemnor abused its discretion in determining that the taking was necessary to serve a public
purpose. Enbridge Energy (Illinois) v. Kuerth, 2016 IL App (1st) 150519, ¶ 145. A defendant
must carry this burden by clear and convincing evidence. Village of Wheeling v. Exchange
National Bank of Chicago, 213 Ill. App. 3d 325, 335 (1991). If defendant produces sufficient
evidence to rebut the presumption, the presumption vanishes and the trial court “considers
evidence submitted by both parties during the evidentiary phase as if the presumption of necessity
never existed.” Murfin, 2020 IL App (5th) 160007, ¶ 84.
¶ 10 We review this issue employing the manifest-weight standard. Trotter v. Spezio, 349 Ill.
App. 3d 959, 963 (2004). Therefore, we will reverse only if an opposite conclusion is clearly
apparent. Gerber v. Hamilton, 276 Ill. App. 3d 1091, 1093 (1995). That is, we will reverse here
only if it is clearly apparent that defendant failed to carry its burden of showing that plaintiff abused
its discretion in determining that the ordinance was necessary to serve a public purpose. Moreover,
“[d]uring the hearing on a traverse and a motion to dismiss, the credibility of the witnesses and the
weight to be given to their testimony are to be determined by the trial court.” City of Naperville
v. Old Second National Bank of Aurora, 327 Ill. App. 3d 734, 739 (2002).
¶ 11 As noted, the trial court here determined that defendant successfully rebutted plaintiff’s
prima facie case and demonstrated that plaintiff abused its discretion in enacting the condemnation
ordinance. Both parties can muster evidence in support of their respective positions. For example,
plaintiff can point to the testimony of Arturo Conte (an owner of A&A Conte) stating that he
intended to “develop the property as light industry” and that grading plans existed. In fact, some
grading and construction of a detention basin had already commenced. It is undisputed that Reque
Road will be constructed to standards set by plaintiff and title will remain with plaintiff. Michael
Guttman (the City Administrator of West Chicago) described how the property would be
-4- 2021 IL App (2d) 200174-U
developed and testified that development in West Chicago had “picked up tremendously in the last
year and a half.” Moreover, the A&A Conte property is zoned for manufacturing. Plaintiff points
to the fact that Reque Road had been identified as a public road on various plats in support of its
position; however, we also note that Guttman acknowledged that it had usually been gated, so it
was not, in fact, used by the public, making any reliance on its historical status questionable.
¶ 12 Gutmann testified that they “hoped for there to be a nice business park at some point in
time.” The trial court discounted Guttman’s testimony, noting that he had no “knowledge of any
specific concrete plans for any of these [development] projects.” Moreover, as the trial court
observed, “Guttman admitted that ‘no end users have been identified.’ ” We also note that A&A
Conte has submitted nothing beyond grading plans regarding the development of the property.
Guttman also acknowledged that A&A Conte “owns the whole property” to be developed, though
he stated that “it is possible [it] could divide it.” The trial court characterized testimony regarding
Conte’s intention to subdivide the land as “speculation.” When asked why plaintiff wished to
acquire the subject property, Guttman’s first response was that plaintiff had “a development
obligation with the property owner to the west” (i.e., the annexation agreement).
¶ 13 The trial court relied on City of Chicago v. Eychaner, 2015 IL App (1st) 131833, ¶ 71,
where it was held: “Recognizing the difference between a valid public use and a sham can be
challenging. But a telling feature of sound public use in the context of economic redevelopment
is the existence of a well-developed, publicly vetted, and thoughtful economic development plan.”
Similarly, it also pointed to Southwestern Illinois Development Authority v. National City
Environmental, LLC, 199 Ill. 2d 225, 240 (2002), where the absence of any sort of “study” or
“economic plan” was cited in support of the proposition that a taking was not in furtherance of a
public use. Plaintiff distinguishes these cases on their facts, and we agree that they are not so
-5- 2021 IL App (2d) 200174-U
analogous as to be controlling. However, they do provide some guidance here. Notably, both (in
part) stand for the proposition that the absence of plans for development provides a basis for the
trier of fact to discount the possibility that the development will actually occur. In its reply brief,
plaintiff argues that there is no requirement that development plans must be submitted to justify a
taking. We have no quarrel with this proposition; however, these cases do indicate that the trier
of fact may infer from the absence of such plans that the development is not actually intended and,
in turn, the taking is intended to solely benefit a private landowner. Cases like Village of Round
Lake v. Amann, 311 Ill. App. 3d 705, 714-15 (2000), which hold that the fact that a taking benefits
a private party does not render it invalid so long as it also benefits the public are not on point,
because the trial court found that “there is no evidence whatsoever to suggest that the taking of
Reque Road is necessary to serve any public purpose whatsoever.”
¶ 14 On the other hand, evidence in the record also supports defendant’s position. In finding
defendant had carried her burden, the trial court relied heavily on plaintiff’s contractual agreement
with A&A Conte in determining that there was no public purpose underlying the taking. It
expressly cited Southwestern Illinois Development Authority, 199 Ill. 2d 225. As plaintiff points
out, that case differs from this one in that the condemnor there took land and transferred it to
another private party to construct a parking lot whereas here, Reque Road was to remain in
municipal control. Despite this difference, Southwestern Illinois Development Authority provides
sound guidance here.
¶ 15 One of the factors the Southwestern Illinois Development Authority court relied on was the
existence of a contractual relationship between the condemnor and the third party to whom the
land was transferred. Southwestern Illinois Development Authority, 199 Ill. 2d at 240. The
Southwestern Illinois Development Authority (SWIDA) “advertised that, for a fee, it would
-6- 2021 IL App (2d) 200174-U
condemn land at the request of ‘private developers’ for the ‘private use’ of developers.” Id. It
entered into a contract with Gateway (a racetrack) to condemn whatever land Gateway desired.
Id. SWIDA attempted to condemn land from a neighboring landowner for Gateway to use to build
a parking lot. Id. at 229. The Southwestern Illinois Development Authority court held that this did
not serve a public purpose:
“Clearly, the foundation of this taking is rooted not in the economic and planning process
with which SWIDA has been charged. Rather, this action was undertaken solely in
response to Gateway’s expansion goals and its failure to accomplish those goals through
purchasing [the adjacent property owner’s] land at an acceptable negotiated price. It
appears SWIDA’s true intentions were to act as a default broker of land for Gateway’s
proposed parking plan.” Id. at 240-41.
Thus, the contractual relationship between the condemnor and the beneficiary of the taking
provided a reason for the Southwestern Illinois Development Authority court to call the
condemnation into question.
¶ 16 Admittedly, in this case, the relationship between A&A Conte and plaintiff was not nearly
as overt as the relationship between SWIDA and Gateway. Here, in 2004, A&A Conte and
plaintiff entered into an annexation agreement. The agreement was good for 20 years and specified
that the A&A Conte property was to be zoned for manufacturing. At the time, Reque Road was
believed to be a public road, albeit undeveloped. Part of the annexation agreement required A&A
Conte to “install and construct roadway improvements within the Reque Road right-of-way.”
Based on these facts, the trial court found, “Similar to the facts presented in Southwestern, the
agreement here suggests that the City’s true motivations behind the taking is to satisfy its
-7- 2021 IL App (2d) 200174-U
contractual obligations to Conte, a private party.” Hence, given the existence of the annexation
agreement, the trial court’s finding has support in the record.
¶ 17 Indeed, two considerations have been identified as being particularly relevant to
ascertaining whether a taking is in furtherance of a public purpose: “(1) the actual motives behind
the taking and (2) whether the taking was an independent and legitimate decision to further a
planned public use.” BNSF Ry. Co. v. Grohne, 2019 IL App (3d) 180063, ¶ 59. Evidence of record
provided bases for the trial court to resolve both of these considerations in favor of defendant. As
noted, the existence of plaintiff’s contractual obligation to A&A Conte provides a reason to
conclude that the actual motive behind the taking was to benefit a private party. Furthermore, the
absence of well-developed plans documenting an intended public use allows an inference that this
proposed taking is not in furtherance of a “planned public use.” The trial court, in fact, resolved
both factors in defendant’s favor.
¶ 18 Moreover, these decisions were factual in nature. See Amann, 311 Ill. App. 3d at 712 (“Our
standard for reviewing a trial court’s decision on a traverse and motion to dismiss is whether the
order is against the manifest weight of the evidence presented.”). As the appellant, plaintiff bears
the burden of establishing error on appeal. Behrstock v. Ace Rubber Hose Co., 147 Ill. App. 3d
76, 86 (1986) (“On appeal, it is well settled that all reasonable presumptions are in favor of the
action of the trial court and that the burden is on the appellant to show affirmatively the errors
assigned on review; he has the burden of overcoming the presumption that the trial court’s
judgment was correct.”). Thus, for us to reverse, plaintiff would have to establish that an opposite
conclusion to the trial court’s regarding whether defendant carried its burden during the
proceedings below is clearly apparent. Gerber, 276 Ill. App. 3d at 1093. Given the conflicting
evidence outlined above, we simply cannot come to such a conclusion. Moreover, to the extent
-8- 2021 IL App (2d) 200174-U
the trial court’s decision rests on a rejection of Guttman’s testimony, we owe it significant
deference, as credibility determinations are matters for the trier of fact. Old Second National Bank
of Aurora, 327 Ill. App. 3d at 739. Plaintiff complains that the trial court “ignore[d] the plethora
of evidence” it submitted indicating Reque Road will benefit the public. However, it appears to
us that the trial court did not “ignore” plaintiff’s evidence—for example, it discussed Guttman’s
testimony in detail. Rather, the trial court simply chose not to assign much weight to it, as was its
prerogative. Id. A reviewing court may not simply substitute its judgment for that of the trier of
fact on such matters. Valasquez v. Yellow Cab Co., 32 Ill. App. 3d 934, 936 (1975). In short, after
considering all of the evidence and the applicable standard of review, we are compelled to hold
that the trial court’s decision is not against the manifest weight of the evidence.
¶ 19 Before closing, we will comment on plaintiff’s reliance on certain cases. Plaintiff
complains that the trial court did not give proper consideration to City of Chicago v. Vaccarro, 408
Ill. 587 (1951). Plaintiff asserts, correctly, that Vaccarro holds that a condemnor “has a right to
and should consider not only the present needs of the public, but those which may be fairly
anticipated in the future.” Id. at 772. Plaintiff then argues: “While immediate need for Reque
Road might not be present, Guttman testified that the City is recently experiencing a tremendous
growth in economy, spurring development, which the City expects to occur in the vicinity of the
Property. Defendants offered no rebuttal to this evidence.” The problem for plaintiff here, of
course, is that the trial court attributed little weight to Guttman’s testimony. Assuming, arguendo,
that plaintiff is correct in asserting that defendant offered no rebuttal evidence on this point, “the
trier of fact is always free to disbelieve any witness.” Franciscan Communities, Inc. v. Hamer,
2012 IL App (2d) 110431, ¶ 47; see also People v. Younge, 83 Ill. App. 3d 305, 309 (1980) (“The
-9- 2021 IL App (2d) 200174-U
defendant's testimony, even if unrebutted, need not be believed by the trier of fact.”). This is true
regardless of whether we are addressing Guttman’s testimony regarding a present or future need.
¶ 20 Plaintiff also cites Department of Public Works & Buildings v. Farina, 29 Ill. 2d 474, 480
(1963), where the supreme court sanctioned a taking of a strip of land connecting a parcel of private
property with a freeway. We note that the holding rested, in part, on the unique nature of limited
access highways. Id. at 478-79. More importantly, we do not read Farina as establishing a per se
rule that whenever condemned land is used to build a road that is open to the public, the taking is
justified. Such a rule would allow a condemnor to take land to build a road no one had any interest
in using by the simple artifice of allowing the public to use the road despite that fact that it was
unlikely that anyone actually would do so. Thus, Farina is no bar to the trial court concluding—
as a matter of fact—that the attempted taking in this case was not in furtherance of a public use.
¶ 21 Similarly, plaintiff’s reliance on Alsip Park District v. D & M Partnership, 252 Ill. App.
3d 277 (1993), is misplaced. In that case, the plaintiff wished to acquire the land in question for a
park. It is true that the Alsip court stated that the trial court’s grant of the defendant’s traverse and
motion to dismiss was erroneous, in part, because “plaintiff is not required to have a specific
development plan for the site prior to its acquisition.” Id. at 288. However, this was not the only
reason that the trial court’s finding was held to be contrary to the manifest weight of the evidence.
In addition to the absence of a concrete plan, the trial court made erroneous findings regarding
whether plaintiff had adequate land for parks within its borders. Id. Here, conversely, the trial
court did not make an additional finding that could be deemed erroneous; rather, it found, based
on the existence of the annexation agreement, that plaintiff’s true purpose in taking the land at
issue was to satisfy a private obligation. Thus, Alsip is distinguishable. Moreover, as in Farina,
we do not read Alsip as establishing a per se rule that the absence of a concrete plan is not relevant.
-10- 2021 IL App (2d) 200174-U
As we see it, it is a pertinent factor that a court may consider in ascertaining whether a taking
serves a bona fide public purpose. Here, in light of the totality of the evidence in the record, the
trial court determined that it did not, and we cannot say that an opposite conclusion to the one
reached by the trial court is clearly apparent.
¶ 22 IV. CONCLUSION
¶ 23 In light of the foregoing, the judgment of the circuit court of Du Page County is affirmed.
¶ 24 Affirmed.
-11-