If you hear that property owners should not worry too much when their homes, land, or businesses are targeted for eminent domain because the government has their best interest in mind and will treat them fairly, pay attention to this case.
Most understand government's power to take property by eminent domain. (Note: we don't like the term "right" when speaking of eminent domain, since governments don't possess "rights" only those powers delegated to them by the people. So while we often use the convenient shorthand "right to take," it is a misnomer.) But when can the government stop taking property? How about after it settles a case? After it stipulates to judgment?
In Village of Bellwood v. American National Bank & Trust Co., No. 1-09-3115 (June 7, 2011), the Illinois Court of Appeals held that an Illinois statute that prohibits a condemnor from unilaterally abandoning a taking after it takes possession allowed the village to abandon its eminent domain lawsuits even after it had settled the cases with the property owners and a final order and judgment had been filed with the court. The Illinois eminent domain statute provides:
After the plaintiff has taken possession of the property pursuant to the order of taking, the plaintiff shall have no right to dismiss the complaint or to abandon the proceeding, as to all or any part of the property so taken, except upon the consent of all parties to the proceeding whose interests would be affected by the dismissal or abandonment.
735 ILCS 30/20 5 40.
Bellwood condemned seven properties as part of a redevelopment project, and eventually entered into an "Agreed Stipulation and Final Judgment Order" in which the village agreed with the property owners. The village agreed to deposit compensation with the country treasurer, which would vest the village with fee simple title to the properties, and the villlage and the property owners agreed to waive their rights to appeal.
Apparently, the revitalization project "became financially unfeasible." Slip op. at 3. So the day before Bellwood was to deposit just compensation with the treasurer and take title to the properties," the village filed a motion to dismiss. Id. Without prejudice of course -- it needed to keep those options open in case revitalization became feasible again.
The trial court denied the motion "you can't just go out and make agreements and then all of a sudden back out on them. I mean, and that's the long and the short of it right there. I realize that I'm treading on some very thin ice, primarily because as a matter of law, it makes it very clear that there can be a voluntary dismissal, abandonment." Slip op. at 4. (Barista's note: when an appellate court quotes things like this from the trial judge, you don't need to read to the end of the opinion to know which way the court will rule, do you?)
The court of appeals reversed. The statute prohibiting abandonment of a taking after the condemnor takes possession "is plain and clear," and "provides that abandonment of the condemnation proceeding is precluded only after the plaintiff has taken possession of the property." Slip op. at 9-10. Because Bellwood had not yet done so, it could stop the taking. The court held it did not matter that the trial court entered judgment, or that in the order, Bellwood seemed to agree the statute did not apply. "Had the agreed orders included a waiver of Bellwood's right to abandon the eminent domain proceeding, we would have reached a different conclusion." Slip op. at 11.
The court also rejected the property owners' estoppel claim. At least one of the seven property owners had relied on the taking and Bellwood's agreement to his severe detriment -- he closed his business and moved it elsewhere -- but the court concluded that any reliance by the property owners was not "reasonable reliance" because "Bellwood retained the statutory right to dismiss or abandon those proceedings until the actual taking of the properties occurred." Slip op. at 15. In other words, it was not reasonable for the owners to rely on the government's promise in the agreement, since the mere existence of the statute meant that the government still reserved the right to quit and the owners should have known that.
And that contractual provision in which each side waived appeal rights?
[W]e cannot construe the parties' waiver of the right to appeal in the agreed orders as a waiver of Bellwood's right to appeal from the denial of its motion to abandon. Bellwood is not attacking or contesting the agreed orders; rather, Bellwood is contesting only the denial of its motion to abandon, an order separate and distinct from the agreed orders. Therefore, the parties' waiver of the right to appeal as provided for in the agreed orders does not affect Bellwood's right to appeal the denial of its motion to abandon.
Slip op. at 6-7.
So let's see if we understand the court's reasoning: if the parties to the agreement wanted to make it clear that the village was foregoing its right to unilaterally abandon the taking they needed the order to expressly say so, but express language in the order that "each party waives its rights of appeal in this cause" only meant that the parties waived their right to appeal that order, and not all orders "in this cause."
Bottom line: the power to take includes the power to quit taking (at least in Illinois), even when the government agrees that it is taking. Remember that next time you hear "we're from the government, and we're here to help."
Village of Bellwood v. American National Bank & Trust Co., No. 1-09-3115 (June 7, 2011)<
