Eminent domain debated: Edwardsville (IL) Intelligencer, 3/3/05

Hot topic addressed by local law firm during seminar

By Norma Mendoza

Rene Bassett Butler wasted no time in getting to the point about eminent domain.

"Can the Illinois Department of Transportation take your land?" she said. "Yes, they can. Can you do anything to stop them? No, you can't."

Bassett was opening a free seminar about eminent domain sponsored by the Bassett Law Office at the Collinsville Holiday Inn last week. Rene and her father and law partner, Merle Bassett, were the presenters. Advertised in several issues of local newspapers, the seminar promised to discuss the rights of owners of farmland, residential and business properties.

As it turns out, when the issue is the power of eminent domain by IDOT, property owners have few rights. They do have the right to be represented by an attorney in their bid to be justly compensated for the property and they have the right to a trial by jury in determining what is just compensation.

Governmental bodies are given the power of eminent domain in the Fifth Amendment to the U.S. Constitution. However, the Constitution requires that property owners must be given "just compensation." It also states that the intent of the government must be to use the land for the public good.

That is often a bone of contention in eminent domain cases — just what is the "public good?" Many claim it should be for a road, but in some cases it could be for a school. When there is a dispute about whether it is for the public good, the issue is usually decided in the courts.

An extreme form of eminent domain is the power to quick-take property. Outside of Chicago, only the state of Illinois (IDOT) and the Southwestern Illinois Development Authority have the power of quick take.

The Illinois Supreme Court ruled in 2002 that SWIDA overstepped its authority when it agreed to the request from Gateway International Raceway in Madison to use its power to quick take the property of National City Environmental for Gateway to use for a parking lot. SWIDA temporarily lost its quick-take power over that one.

Last year, closer to home, Sunnyside Nurseries lost its battle to keep IDOT from quick taking six acres of the nursery land for Governor's Parkway.

The difference in the two quick takes was that SWIDA tried to take property from one private entity for the benefit of another private entity and the Sunnyside property was taken for a road.

The road was deemed to be for the public good while the parking lot was deemed to be for private gain even though SWIDA claimed it would ultimately benefit the public.

The issue of eminent domain has come to the forefront as local governments discuss the I-55 Corridor Plan and the 158 Connector Road. Property owners have become nervous about whether their land will be taken. Many remember when land was taken for Interstate 270 and again for Interstate 255.

In both cases, several property owners put up fights to save their land, but in the end the highways were built.

Bassett Butler advised the three dozen or so attendants at the seminar to get prepared if they believe their land is in the way of an IDOT project. She said not much can be done until they are notified by the agency that it proposes to take their land. She said they should wait until that point to have an appraisal done and contact an attorney.

Bassett Butler noted that she and her father have been representing landowners for the past seven years. Before that, Merle Bassett was a special assistant attorney general and handled land acquisition for the state in Southern Illinois. It is this experience, she said that gives the Bassetts familiarity with the state's procedures.

"Aren't you walking both sides of the fence?" one man said.

Bassett said he only worked with SWIDA on behalf of the municipalities that hired SWIDA to help them with eminent domain issues.

Bassett Butler also touted the law firm's network of appraisers who are also experts in the field of eminent domain.

"We're finding out that the state appraisers are doing this on contract and they're what we call windshield appraisers," Merle Bassett said, indicating they do "drive-bys."

One man asked if anything can be done about land that was taken in 1955, but never used by IDOT. Merle Bassett said there is recourse when the state abandons an eminent domain claim.

"A landowner went to court over land taken in 1965 and won," he said.

He told another questioner that if a new highway comes within 10 feet of a landowner's house, the state has to buy the entire property, but if it's an already established road and is being widened, the state only has to buy a portion of the property.

Some criticized the Bassett Law Office for presenting the seminar. Bassett Butler was up front about welcoming new clients, but presented a straightforward informational seminar.

Edwardsville Intelligencer: www.goedwardsville.com