Davis v. Brown ( 2006 )

Docket No. 100624.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
MARVEL DAVIS et al., Appellants, v. KIRK BROWN et al.,
Appellees.
Opinion filed June 2, 2006.
JUSTICE McMORROW delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald,
Kilbride, Garman, and Karmeier concurred in the judgment and
opinion.
OPINION
Section 4B510 of the Illinois Highway Code (605 ILCS
5/4B510 (West 2004)) authorizes the Illinois Department of
Transportation to prepare and record maps that Aestablish
presently the approximate locations and widths of rights of way
for future additions to the State highway system.@ Pursuant to
this statute, the Department of Transportation prepared and
recorded a map that set forth a right-of-way for a proposed
highway, known as the Prairie Parkway, located in northern
Illinois. Plaintiffs, over 40 landowners whose property falls
within the right-of-way, filed an action for declaratory judgment,
seeking to have section 4B510 declared unconstitutional. The
circuit court of Kendall County dismissed plaintiffs= complaint,
primarily on the basis that plaintiffs had not shown any injury
and, therefore, lacked standing. On appeal, the appellate court
reversed the circuit court=s judgment that plaintiffs lacked
standing, but rejected plaintiffs= constitutional arguments on the
merits. 357 Ill. App. 3d 176. For the reasons that follow, we
affirm the judgment of the appellate court.
BACKGROUND
On October 14, 2003, plaintiffs filed a second amended
complaint for declaratory relief in the circuit court of Kendall
County. In their complaint, plaintiffs alleged the following. In
1999, the defendants, the Illinois Department of Transportation
and its then-director, Kirk Brown 1 (collectively, the
Department), began feasibility studies for a proposed highway
that would connect Interstate 80 with Interstate 88 in northern
Illinois. The proposed highway, which was named the Prairie
Parkway, would run north and south through portions of
Kendall, Kane and Grundy Counties.
Under the enabling authority granted by section 4B510 of
the Illinois Highway Code (605 ILCS 5/4B510 (West 2004)), the
Department began preparing a map to establish a right-of-way
for the Prairie Parkway. A public hearing was held on
December 11, 2001, at which time testimony was heard
regarding various proposed locations for the right-of-way.
1
The current director of the Illinois Department of Transportation is
Timothy Martin. He is substituted for Kirk Brown as a defendant in this
action. See 735 ILCS 5/2B1008(d) (West 2004).
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Sometime after the hearing, the Department selected a right-
of-way and completed a final map. The map was filed with the
relevant county authorities on July 31, 2002.
As required by section 4B510, the Department notified
those landowners with property in the Prairie Parkway right-of-
way, including plaintiffs, that the final map had been approved
and filed. After receiving notice, plaintiffs commenced the
present action.
Plaintiffs= second amended complaint challenges the
constitutionality of section 4B510. In relevant part, section
4B510 provides:
AThe Department may establish presently the
approximate locations and widths of rights of way for
future additions to the State highway system to inform
the public and prevent costly and conflicting
development of the land involved.
***
The Department shall make a survey and prepare a
map showing the location and approximate widths of the
rights of way needed for future additions to the highway
system. The map shall show existing highways in the
area involved and the property lines and owners of
record of all land that will be needed for the future
additions and all other pertinent information. Approval of
the map with any changes resulting from the hearing
shall be indicated in the record of the hearing and a
notice of the approval and a copy of the map shall be
filed in the office of the recorder for all counties in which
the land needed for future additions is located.
Public notice of the approval and filing shall be given
in newspapers of general circulation in all counties
where the land is located and shall be served by
registered mail within 60 days thereafter on all owners
of record of the land needed for future additions.
***
After the map is filed and notice thereof given to the
owners of record of the land needed for future additions,
no one shall incur development costs or place
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improvements in, upon or under the land involved nor
rebuild, alter or add to any existing structure without first
giving 60 days notice by registered mail to the
Department. This prohibition shall not apply to any
normal or emergency repairs to existing structures. The
Department shall have 45 days after receipt of that
notice to inform the owner of the Department=s intention
to acquire the land involved; after which, it shall have
the additional time of 120 days to acquire such land by
purchase or to initiate action to acquire said land
through the exercise of the right of eminent domain.
When the right of way is acquired by the State no
damages shall be allowed for any construction,
alteration or addition in violation of this Section unless
the Department has failed to acquire the land by
purchase or has abandoned an eminent domain
proceeding initiated pursuant to the provisions of this
paragraph.@ 605 ILCS 5/4B510 (West 2004).
Plaintiffs= complaint is in three counts. Count I, though
captioned Aviolation of due process,@ is more accurately read
as alleging a takings clause violation. As the Department noted
in its memorandum of law in response to plaintiffs= second
amended complaint, A[u]nderlying/permeating Count I is the
notion that the Defendants improperly used the sovereign=s
police powers, resulting in a regulatory taking.@ Specifically,
plaintiffs allege in count I that under section 4B510, those
landowners whose property falls within the right-of-way
established by a map must give notice to the Department if
they plan to develop their property; that once a landowner has
so notified the Department, the Department has the option to
commence eminent domain proceedings against the
landowner; that this Aoption to take@ has Ano time constraints@;
and that no compensation is provided to landowners under the
statute for the creation of the Aoption to take.@ Two plaintiffs,
Marvel Davis and Rojean Gum, further allege in the complaint
that they would like to develop their property but have not done
so for fear that if they give notice to the Department, as
required by section 4B510, the Department will commence
eminent domain proceedings against them.
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In count II of their complaint, plaintiffs allege that section
4B510 violates separation of powers principles. Plaintiffs allege
that under the state constitution, as interpreted by this court, a
showing of necessity must be made before the power of
eminent domain may be lawfully exercised. According to
plaintiffs, section 4B510 negates this requirement, thus
effectively changing Athe judicial interpretation of the Illinois
Constitution by way of legislative fiat@ in violation of the
separation of powers clause of the state constitution.
Finally, in count III, plaintiffs allege that section 4B510
violates principles of substantive due process. Plaintiffs
contend that section 4B510 Ais an attempt by the State to
freeze property values in anticipation of possible, future land
acquisitions@ and, as such, is Aan impermissible exercise of the
State=s police power.@
After plaintiffs filed their second amended complaint, the
Department filed a motion to dismiss pursuant to section 2B615
of the Code of Civil Procedure (735 ILCS 5/2B615 (West
2004)). The circuit court granted this motion, primarily on the
ground that the plaintiffs had not yet been injured by section
4B510 and so had no standing to pursue their action for
declaratory judgment. On appeal, the appellate court reversed
the circuit court=s judgment with respect to standing. The
appellate court concluded that plaintiffs had sufficiently pled a
threatened injury to their interests so as to meet the pleading
requirements necessary to maintain an action for declaratory
relief. Having reached this conclusion, the appellate court then
accepted plaintiffs= invitation to reach the merits of their facial
challenges to the constitutionality of section 4B510. Citing to
Shortridge v. Sherman, 84 Ill. App. 3d 981, 986 (1980), the
appellate court noted that it had the authority to render any
judgment that ought to have been made in the circuit court (see
155 Ill. 2d R. 366(a)(5)), and that plaintiffs= facial challenges to
the validity of section 4B510 could be addressed on appeal
because they presented pure questions of law. Effectively
treating the case as if the parties had filed cross-motions for
summary judgment, the appellate court rejected plaintiffs=
arguments and upheld the facial validity of section 4B510. We
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subsequently granted plaintiffs= petition for leave to appeal. 177
Ill. 2d R. 315.
ANALYSIS
At the outset, we note that neither party to this appeal
contests the appellate court=s decision to reach the merits of
plaintiffs= facial challenges to the constitutionality of section
4B510. Further, the Department concedes that both Marvel
Davis and Rojean Gum, the two plaintiffs who allege that they
have forgone developing their property because of a fear that
the Department will begin eminent domain proceedings, have
standing to contest the facial validity of section 4B510.
Accordingly, the only matter at issue before this court is the
appellate court=s judgment that section 4B510 is facially
constitutional. 2
Statutes are presumed constitutional. Arangold Corp. v.
Zehnder, 187 Ill. 2d 341, 351 (1999). The party challenging the
validity of a statute has the burden of rebutting this
presumption and clearly establishing a constitutional violation.
In re R.C., 195 Ill. 2d 291, 296 (2001). Moreover, A >it is our
duty to construe acts of the legislature so as to uphold their
constitutionality and validity if it can reasonably be done, and,
further, that if their construction is doubtful, the doubt will be
resolved in favor of the validity of the law attacked.= [Citations.]@
People v. Inghram, 118 Ill. 2d 140, 146 (1987).
Plaintiffs contend that section 4B510 is facially invalid under
three constitutional provisions: the takings clause of the federal
constitution, the separation of powers clause of the state
constitution and the due process clause of the state
constitution. In raising these facial challenges, plaintiffs
2
The Department also asks this court to hold that, aside from Davis and
Gum, no other plaintiff has standing to challenge the facial validity of
section 4B510. In light of our holding that section 4B510 is constitutional on
its face, this issue need not be considered here.
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Amust overcome considerable hurdles:
>A facial challenge to a legislative Act is, of
course, the most difficult challenge to mount
successfully, since the challenger must establish
that no set of circumstances exists under which the
Act would be valid. The fact that the [statute] might
operate unconstitutionally under some conceivable
set of circumstances is insufficient to render it wholly
invalid, since we have not recognized an
Aoverbreadth@ doctrine outside the limited context of
the First Amendment.= @ In re C.E., 161 Ill. 2d 200,
210-11 (1994), quoting United States v. Salerno,
481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct.
2095, 2100 (1987).
Because the appellate court=s judgment that section 4B510 is
constitutional on its face involves only questions of law, our
review is de novo. In re R.C., 195 Ill. 2d at 296.
Takings Clause
The takings clause of the fifth amendment provides that
private property shall not Abe taken for public use, without just
compensation.@ U.S. Const., amend. V. The takings clause is
made applicable to the states through the fourteenth
amendment. Chicago, Burlington, & R.R. Co. v. City of
Chicago, 166 U.S. 226, 41 L. Ed. 979, 17 S. Ct. 581 (1897).
The clearest example of a taking which requires just
compensation under the fifth amendment Ais a direct
government appropriation or physical invasion of private
property.@ Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537,
161 L. Ed. 2d 876, 887, 125 S. Ct. 2074, 2081 (2005).
However, the Supreme Court has recognized that
Agovernment regulation of private property may, in
some instances, be so onerous that its effect is
tantamount to a direct appropriation or ousterBand that
such >regulatory takings= may be compensable under
the Fifth Amendment. In Justice Holmes= storied but
cryptic formulation, >while property may be regulated to
a certain extent, if regulation goes too far it will be
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recognized as a taking.= [Pennsylvania Coal Co. v.
Mahon, 260 U.S. 393, 415, 67 L. Ed. 322, 326, 43 S. Ct.
158, 160 (1922).] The rub, of course, has beenBand
remains- how to discern how far is >too far.= @ Lingle, 544
U.S. at 537-38,161 L. Ed. 2d at 887, 125 S. Ct. at 2081.
The general principles to be applied in determining whether
a regulation goes Atoo far,@ and thus becomes a taking, are
found in Penn Central Transportation Co. v. City of New York,
438 U.S. 104, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978). In Penn
Central, the Supreme Court observed that, although there was
no A >set formula= @ to apply to regulatory-takings claims, there
are Aseveral factors that have particular significance.@ These
factors include A[t]he economic impact of the regulation on the
claimant and, particularly, the extent to which the regulation
has interfered with distinct investment-backed expectations.@
Penn Central, 438 U.S. at 124, 57 L. Ed. 2d at 648, 98 S. Ct. at
2659. In addition, the A >character of the governmental
action=Bfor instance whether it amounts to a physical invasion
or instead merely affects property interests through >some
public program adjusting the benefits and burdens of economic
life to promote the common good=Bmay be relevant in
discerning whether a taking has occurred.@ Lingle, 544 U.S. at
539, 161 L. Ed. 2d at 888, 125 S. Ct. at 2082, quoting Penn
Central, 438 U.S. at 124, 57 L. Ed. 2d at 648, 98 S. Ct. at
2659. See also Lingle, 544 U.S. at 540, 161 L. Ed. 2d at 889-
90, 125 S. Ct. at 2082 (Athe Penn Central inquiry turns in large
part, albeit not exclusively, upon the magnitude of a
regulation=s economic impact and the degree to which it
interferes with legitimate property interests@).
In the case at bar, plaintiffs concede that the mere filing of a
map setting forth a right-of-way does not, by itself, constitute a
regulatory taking. See, e.g., City of Chicago v. Loitz, 61 Ill. 2d
92, 97 (1975) (Amere planning or plotting in anticipation of a
public improvement does not constitute a >taking= or damaging
of the property affected@); Bauman v. Ross, 167 U.S. 548, 596,
42 L. Ed. 270, 290, 17 S. Ct. 966, 984 (1897); see generally J.
Kemper, Annotation, Plotting or Planning in Anticipation of
Improvement as Taking or Damaging of Property Affected, 37
A.L.R. 3d 127, 132 (1971). Plaintiffs contend, however, that
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section 4B510 does more than just authorize the filing of a
right-of-way map. Plaintiffs point out that, under section 4B510,
once a landowner notifies the Department of any development
plans, the Department is granted what is, in effect, an Aoption
to take@ the landowner=s property. Further, no compensation is
provided the landowner under the statute for the option. In
plaintiffs= view, it is this Aoption to take@ that Acontains the hook
which amounts to a regulatory taking.@
The Department, however, maintains that section 4B510
imposes no economic restrictions on any landowner=s property.
According to the Department, section 4B510 Aneither involves a
physical invasion of property, nor deprives the plaintiffs of any
economically beneficial or productive use of their land. *** The
statute merely requires that if a property owner, within the
boundaries of a highway corridor map, desires to rebuild, alter,
add to or make improvements to an existing structure, or to
create a new structure, the Department must be given prior
notice of such intention and the fair opportunityBif
appropriateBto acquire the property through voluntary purchase
or through its eminent domain power.@
The Department=s contention that section 4B510 places no
economic restriction on any landowner=s property is incorrect.
Once a landowner gives notice to the Department as required
by section 4B510, the Department has 45 days to inform the
landowner whether it intends to acquire the property. 605 ILCS
5/4B510 (West 2004). The Department then has an additional
120-day period either to purchase the property in a voluntary
transaction or to initiate eminent domain proceedings. If the
property is not acquired during this time, the landowner may
proceed with development without restriction under the statute.
However, during the time the Department decides what to do
with the propertyBa reservation period that may last up to 165
daysBdevelopment may not be pursued by the landowner.
Thus, contrary to the Department=s assertions, there is a
potential economic restriction imposed on a landowner=s
property under section 4B510.
However, it has been held that such a restriction does not
amount to a regulatory taking. In Kingston East Realty Co. v.
State, 133 N.J. Super. 234, 336 A.2d 40 (1975), the New
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Jersey appellate court considered the effect of a statutory
scheme similar to section 4B510. In that case, a landowner
applied for a permit to develop its property. Because the
property fell within a highway planning map, the landowner
could not be granted a permit under the applicable New Jersey
law without first obtaining permission from the commissioner of
the state department of transportation. As with section 4B510,
the commissioner had, in total, as much as 165 days either to
acquire the property voluntarily or to commence an action to
condemn the property. Kingston East Realty Co., 133 N.J.
Super. at 241, 336 A.2d at 43-44. Ultimately, the commissioner
took no action against the landowner=s property. The
landowner thereafter contended that the time during which the
commissioner reviewed the matter, and a building permit was
withheld, constituted a taking for which it was entitled to
compensation. Kingston East Realty Co., 133 N.J. Super. at
242, 336 A.2d at 44.
The New Jersey appellate court rejected this argument. The
court acknowledged that the actions of the state in the case
Aconstituted a restriction upon the use of plaintiff=s property,
which can be analogized to an option to purchase since its
imposition was to enable the State, during the period of its
existence, to determine whether or not to acquire the property
for a public purpose.@ Kingston East Realty Co., 133 N.J.
Super. at 243, 336 A.2d at 45. Nevertheless, the court
concluded that the restriction did not amount to a taking. In so
holding, the court emphasized both the beneficial policy behind
the reservation period and its limited time frame:
A[T]he period during which plaintiff was unable to secure
a building permit was substantially less than the one
year period involved in [previous cases]. Moreover, the
restriction thus imposed was reasonably designed to
reduce the cost of public acquisitions. *** [T]he
legislation is based upon a salutary recognition by the
State of its responsibilities for persons displaced by
highway improvements. It seeks to minimize such
economic injury and grave inconveniences by avoiding
these consequences through a restriction against the
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physical improvement of affected property for a limited
period of time ***.
***
*** [T]he restrictions here are for a considerably
lesser period time [than one year], and are not a blanket
reservation. Under this statute, the Commissioner is
required to act affirmatively and promptlyBby making a
decision initially with 45 days and then, if need be,
taking specific action within 120 daysBin order to
conclude the questions of whether the land is to be
acquired for transportation purposes. These statutory
steps are designed to provide some assurance that the
temporary restriction upon the use of the property by the
State shall be expeditiously and carefully reviewed and
shall not last any longer than reasonably necessary to
reach a sound decision on the need for the property for
transportation purposes.@ Kingston East Realty Co., 133
N.J. Super. at 243-44, 336 A.2d at 45.
We find the reasoning of the New Jersey appellate court
persuasive. Applying that reasoning here, we conclude that
under section 4B510 the limited reservation period which
follows a landowner=s notification to the Department does not
constitute a regulatory taking.
Further, we note that even assuming, arguendo, that a 165-
day reservation period could, in some instance, amount to a
taking, plaintiffs have failed to demonstrate the facial invalidity
of section 4B510. Plaintiffs Aface an uphill battle in making a
facial attack on [a statute] as a taking.@ Keystone Bituminous
Coal Ass=n v. DeBenedictis, 480 U.S. 470, 495, 94 L. Ed. 2d
472, 495, 107 S. Ct. 1232, 1247 (1987). To establish the facial
invalidity of section 4B510, plaintiffs must show that the statue
has an effect on the economic viability of every parcel of land
that might fall under a right-of-way map. See Hodel v. Virginia
Surface Mining & Reclamation Ass=n, 452 U.S. 264, 295, 69 L.
Ed. 2d 1, 28, 101 S. Ct. 2352, 2370 (1981) (in a facial takings
challenge, the question is whether the A >mere enactment= @ of
the statute constitutes a taking). Plaintiffs have not met this
standard.
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Consider, for example, that those landowners located within
a right-of-way map who never develop or alter their property
will never be required to notify the Department under section
4B510. These landowners will not trigger the Aoption to take@
provision of section 4B510 or the 165-day restriction period. For
these landowners, the only effect of section 4B510 will be the
creation and filing of the right-of-way map. And, as noted
previously, the filing of a map, by itself, does not constitute a
taking. See, e.g., Loitz, 61 Ill. 2d at 97. Given these facts, the
most that can be said with respect to the facial impact of
section 4B510, that is, the impact the statute has on every
landowner in every right-of-way map, is that the statute creates
the possibility of a 165-day reservation period. We cannot say,
as a matter of law, that the mere potential of a 165-day
reservation period amounts to a per se regulatory taking for
every landowner who falls within a right-of-way map.
Accordingly, we reject plaintiffs= facial takings challenge to
section 4B510.
Separation of Powers
Plaintiffs contend that section 4B510 violates the separation
of powers provision of the state constitution. That provision
provides, with respect to the various branches of state
government, that A[n]o branch shall exercise powers properly
belonging to another.@ Ill. Const. 1970, art. II, '1.
Plaintiffs contend that it is the province of the courts, not the
General Assembly, to interpret the state and federal
constitutions. Plaintiffs further emphasize that this court has
required that there be a showing of Anecessity@ before the
power of eminent domain may be constitutionally exercised.
See, e.g., People ex rel. Director of Finance v. Young
Women=s Christian Ass=n of Springfield, 86 Ill. 2d 219, 232-34
(1981). Plaintiffs maintain that section 4B510 Aallows
condemnation without any legislative finding of need.@ In
plaintiffs= view, all that is required to condemn, under the
authority of section 4B510, is a landowner=s notification of
development or alteration of its property. Thus, according to
plaintiffs, section 4B510 violates the separation of powers
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provision because Athe legislature cannot dispense with the
constitutional requirement of necessity.@
Contrary to plaintiffs= contentions, section 4B510 does not
change the requirement that the Department must prove
necessity to lawfully condemn property. Section 4B510 requires
landowners in the right-of-way to give notice to the Department
if they plan to develop or alter their properties. This notice is
required to enable the Department to determine whether it
wants to negotiate for the land, exercise eminent domain
power, or refrain from taking any action. The notice
requirement does not, however, alter eminent domain law. As
the appellate court below observed, section 4B510 does
nothing to reduce the obligations that the Department must
satisfy if it is to lawfully condemn property. See also
Department of Transportation v. McGovern, 103 Ill. App. 3d
461, 465 (1982) (AIt is essential to observe that section 4B510
of the Illinois Highway Code is not a provision of the Eminent
Domain Act@). Plaintiffs= contention that section 4B510
circumvents the requirements of eminent domain law is
incorrect.
Plaintiffs further argue that, under section 4B510, the
Astandards and criteria by which the [Department] makes a
determination to proceed with the taking process are non-
existent.@ Citing to In re Application for Judgment & Sale of
Delinquent Properties for the Tax Year 1989, 167 Ill. 2d 161,
176-77 (1995), plaintiffs maintain that section 4B510 Aconfers
unfettered discretion upon an administrative agency@ and,
therefore, Aconstitutes an unlawful delegation of power by the
legislature@ in violation of separation of powers principles. We
disagree.
The Department=s eminent domain authority is established
and governed by several provisions under the Highway Code,
including, most notably, section 4B501 (605 ILCS 5/4B501
(West 2004)). Section 4B510 does nothing to alter the eminent
domain requirements set forth in section 4B501 or any other
provision of the Highway Code. These provisions provide the
Department with constitutionally sufficient standards to govern
its discretion. See also Department of Transportation v. First
Galesburg National Bank & Trust Co., 141 Ill. 2d 462, 466-68
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(1990) (rejecting the argument that the Department=s failure to
adopt rules to guide its discretionary power to condemn land
amounts to a due process violation). Accordingly, we reject
plaintiffs= separation of powers claim.
Substantive Due Process
Plaintiffs also contend that section 4B510 violates principles
of substantive due process. In cases that do not concern
fundamental rights, such as the present one, a statute which is
challenged as violating substantive due process need only
survive rational basis review, i.e., the statute must bear a
rational relationship to a legitimate state interest. Tully v.
Edgar, 171 Ill. 2d 297, 304 (1996).
The Department maintains that section 4B510 is rationally
related to numerous legitimate state purposes including, as the
statute itself states, Ainform[ing] the public@ of the proposed
highway by recording a map setting out its proposed path and
preventing Acostly and conflicting@ land development. 605 ILCS
5/4B510 (West 2004). Plaintiffs, however, contend that section
4B510 is nothing more than Aan attempt by the State to freeze
property values in anticipation of possible, future land
acquisitions@ and, as such, is Aan impermissible exercise of the
State=s police power.@
As plaintiffs correctly note, there is a well-established line of
authority, often addressing instances of spot zoning, which
holds that it is an illegitimate state interest to purposefully
depress property values in anticipation of future land
acquisition:
AIn a number of instances it has appeared that although
the zoning ordinances involved therein were ostensibly
adopted in order to regulate land usage in the public
interest, the real purpose for their enactment was to
depress or limit property values in order to minimize the
costs of acquisition of such property in anticipated
condemnation proceedings. Where the evidence has
been sufficient to establish such an ulterior motive, the
courts have not been reluctant to declare such
ordinances unconstitutional and void.@ J. Kemper,
Annotation, Eminent Domain: Validity of AFreezing@
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Ordinances or Statutes Preventing Prospective
Condemnee From Improving, or Otherwise Changing,
the Condition of His Property, 36 A.L.R. 3d 751, 755-56
(1971).
An Illinois case which illustrates this principle is Galt v.
County of Cook, 405 Ill. 396 (1950). In Galt, the plaintiff=s
property adjoined North Avenue, a heavily traveled, four-lane
road. The plaintiff=s property had been zoned residential under
a Cook County ordinance, despite the fact that the surrounding
properties were predominantly commercial. Evidence at trial
showed that the land was worth about $20 a front foot as
zoned under the challenged ordinance, and would be worth
from $150 to $300 if zoned for business uses. Galt, 405 Ill. 2d
at 405. In addition, plaintiff=s property was burdened with a
special setback provision that forbid development within 130
feet of North Avenue, a distance far greater than customary.
Evidence at trial established that the setback provision had
been enacted specifically because of plans to widen North
Avenue. The chairman of the commission which drafted the
ordinance testified that the setback was A >in the interest of the
public, [so] that when an improvement does come along as is
planned in this case, the State or the county will not be obliged
to pay excessively for removing improvements which are in the
way of ultimate highway improvement.= @ Galt, 405 Ill. at 402-
03.
On appeal, this court struck down both the residential
zoning and the setback provision. Noting the unusually large
distance of the setback, the court determined that the setback
provision was Aunreasonable, capricious and discriminatory.@
Galt, 405 Ill. 2d at 405-06. In addition, this court stated:
AFurthermore, the record makes it abundantly clear that
the primary purpose of the special setback restriction
was to hold down the cost of acquiring additional land
for the widening of North Avenue and that this was to be
accomplished at the expense of a few individual
landowners. In both purpose and extent the restriction
involved bears no perceptible relation to the public
health, safety, comfort and general welfare. It destroys,
rather than conserves, land values, and being designed
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to conserve public funds in the purchase of land, has, at
the most, only a remote and incidental effect upon the
reduction of traffic congestion. The chancellor correctly
determined that the special setback restriction is
unconstitutional and void in its application to plaintiffs=
property.@ Galt, 405 Ill. at 406.
The present case is unlike Galt and the additional cases
cited by plaintiffs. Section 4B510 is not a zoning regulation and
the acquisition of land is not a hidden or ulterior motive behind
the statute. To the contrary, a right-of-way map filed under
section 4B510 provides a landowner with explicit notification
that the Department may eventually seek to acquire their land.
To the extent that such a map works to depress the value of
land within a right-of-way, this is simply the unavoidable
consequence of the public announcement that a highway will
be built. And, clearly, the announcement of the building of a
highway is not an impermissible governmental purpose. Unlike
Galt, there is no indication that section 4B510 was enacted as a
means to purposefully and improperly drive down the value of
landowners= properties. For these reasons, we reject plaintiffs=
facial, substantive due process claim.
CONCLUSION
Plaintiffs have failed to establish the facial invalidity of
section 4B510. Accordingly, the judgment of the appellate court
is affirmed.
Affirmed.
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