Elimination of parking spaces in front of my duplex

[bose1954]

Hello,
This is my first time using The Law.com. I hope I am doing everything correctly.

I live in Stephenson County, in Illinois. I own a duplex that is on Highway 20. My problem is this. The State of Illinois decided to widen the highway and when they did that they eliminated the parking spaces in front of my property. I relied on those spaces. There is nowhere nearby to park. They have eliminated the parking the south side of the street. My duplex is on the south side of the street. Previously, there was no parking allowed on the north side of the street.

By eliminating the parking spaces, my duplex no longer has adequate parking. Property with adequate parking is more valuable than property without adequate parking. By eliminating the parking spaces, the State has caused me to suffer a loss in the value of my property. This case is now pending and is set for pre-trial hear on June 28th, 2001. I have an appraisal showing a loss in value of $6000.00 . The State file a Motion in Limine to keep me from being able to use the appraisal in a jury trial.
It is going to be my argument that the appraisal is necessary to show that there has been a damage to my property in the first place. The State cited several cases as case law to back up their position.
I need to know how to look up the cases cited by the State so that I can read through them and see if they are really lilke my case or if there are differences that may cause them to be irrelevant.
Please let me know what you think about this and if you know how I can find those cases. My e-mail address is bose1954@yahoo.com

Thank you for your help,
Sincerely,
bose1954

 

[brian]

What cases are cited. If they are state of federal cases that aren't very current you could probably gain access at a law library that may be made available at your courthouse or at a law school in your area. The bar association is a good place to contact. Here is their web site, which also contains links to search case law online for free.

http://www.illinoisbar.org/illinoiscaselaw.asp

Depending upon how many cases there are and what court issued them, it may be cost effective to use some of the pay services -- they can get expensive. Cheaper rates may be available on the phone.

http://web.lexis.com/xchange/ccsubs/cc_prods.asp
http://www.westdoc.com/help/faq.wl#cost
http://www.loislaw.com/info/f_free.htm

 

[bose1954]

Thanks for your help Brian,

Here are some of the cases cited by the State of Illinois in their motion in Limine. They are trying to stop me from being able to show my appraisal to the jury. They are saying that my damages fall under the category of "damnum absque injuria".

Rigney v. City of Chicage, 102. Ill. 64 (1881)
I beleive this case was heard by the Illinois Supreme Court.

Department of Public Works and Buildings v. Wilson and Company, Inc. (1975) 62 Ill.

Department of Transportation v. Shaw, (1977) 68 Ill. 2d 342, 369 N.E. 2d 884

Id. at 887. What is this, is this a case, I don't know? It is in the motion in Limine.

Department of Public Works and Buildings v. Greenwell (1977), 45 Ill. App. 3d 359 N.E. 2d 780.

Brian, I will try to find these cases at the URL that you gave me in your answer.
I am scheduled to go to court on the 28th of June. This is for a hearing on the motion in Limine and also a pre-trial hearing. If I can't present a good enough argument to get the motion in limine denied, I think I will not have a very good chance before the jury since I will have no evidence that I have sustained damages to my property.

Let me know if you have any ideas for me.
Thanks Brian,
Sincerely,
bose1954

 

[Michael Wechsler]

I don't know all the facts of your case but that literally means "damages without injury." Examples of this include building a house next door to another on one's property but, in building the foundation of that house, it causes the foundation of the neighbor's house to be weakened. The builder isn't liable to the damage done indirectly to the neighbor's foundation for what he did on his property. Another is the "slandering" of another by publishing the truth, it is said to cause damages without injury (no legal remedy for the damages caused to the slandered).

You can view information about a case which cites Rigney (which seems to be a very old case and legal research would probably be in order using "Shepard's" books) here http://www.kentlaw.edu/7circuit/1998/aug/95-1293A.html which states that:

"The Illinois courts have long required a plaintiff seeking compensation for a governmental damaging of his property rights to demonstrate "an actual physical invasion by the government onto [his] property."

Perhaps what they are trying to argue is that, if the parking spaces are not on your property and the government changes something on not on your property, you aren't necessarily entitled to any damages simply because the property is devalued as a result since there hasn't be an actual physical invasion onto your property which may be required under law. Are the parking spaces part of your complex or are in the street and not actually owned by the complex?

Note, there are many facts in your case and I can't tell you if this is actually what is being argued. Nevertheless, hope it helps.

 

[bose1954]

Hello Michael,
Thank you for answering my question. Here is a little more information about my case. I own a duplex that is situated on Highway 20 in Freeport, Illinois. I only have off-street parking for one unit. The other unit parks on the street in front of the house. This parking has been available for at least 70 yrs. Just as it is in many residential areas of the city.
Now, the Illinois Department of Transportation decided to widen the highway within the municipality of Freeport. They widened about a 5 or 6 block stretch of road. When they did that they eliminated the parking in front of my house. Now I have a rental unit with nowhere for tenants to park. The closest place would be at least one or more blocks away.
In my argument at a previous hearing I argued that Illinois statute (605 ILCS 5/4-402) sec. 4-402 I will type the statute below.

Sec.402. When any State highway route through a municipality has been designated, the Department shall supervise any construction performed on such streets by the municipality with funds received from the State. Such construction shall be either with or without continuous grade separation and of such type and width as is required, in the judgment of the Department, to care for traffic and parking needs. (Source: Laws 1959, p.196)

I have argued that this shows a statutory obligation of the Department to care for parking needs. By not doing so they have caused me to suffer a loss in the value of my property. They must have been aware of the parking needs since they provided the spaces for more than 70 yrs.
At a previous hearing, the Judge said " This is a matter for a jury to decide. I have an appraisal showing that I have suffered a $6000.00 loss. People don't want to live where they can't park their car. It is that simple.

My problem now is to fight the Motion in limine.
Section 15 of Article 1 of the Illinois Constitution says "Private property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law."

I am thinking that I should argue that to not allow me to show my appraisal to the jury deprives me of my constitutional rights. How can a jury make an intelligent decision on whether or not I have sustained damage if I can't show them my evidence?

Let me know what you think.

Thanks for your help Michael,

bose1954

 

[erika]

Seems to me that while the law has to take into account parking needs, it doesn't necessarily mean that you have to be compensated. So while you may be able to fight Section 402 to prevent the highway from creating an impossible situation, you might still be prevented from introducing your evidence of damages because that question is not an issue. The only issue is whether parking needs have been accomodated under Section 402.

 

[brian]

Originally posted by erika:
Seems to me that while the law has to take into account parking needs, it doesn't necessarily mean that you have to be compensated. So while you may be able to fight Section 402 to prevent the highway from creating an impossible situation, you might still be prevented from introducing your evidence of damages because that question is not an issue. The only issue is whether parking needs have been accomodated under Section 402.

That sounds like a pretty good argument that you may want to add to the argument of compensation. If you lose on compensation hopefully you'll win on the space and have a net loss of zero, or at least close to it!!!

 

[bose1954]

Hello Erika,
Thank your for responding to my question. Let me state my argument again and then you can tell me what you think.

OK, I beleive that the State has a statutory obligation under sec. 402 to care for parking needs as well as traffic needs. When they widened the highway in front of my property, they eliminated the parking spaces that have been provided for over 70 years. The need for those parking spaces has not changed. They didn't care for parking need, they chose to ignore the need for parking. By doing so, they have caused the value of my property to decrease. My house is a duplex that relied on those parking spaces for the tenants. The only way to prove that the actions of the State have caused me to suffer a loss is by having an appraisal done. I did that and the appraisal showed that the property is now worth $6000.00 less. As I stated before, rental property with adequate parking is worth more than rental property with inequate parking.

The Illinois State Constitution, Section 12 says:
Right to Remedy And Justice
Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly.

Now, it is the States argument that the damages I have suffered fall under the category of "Damnum Absque Injuria" since I have surrered no greater loss than that of the general public. Therefore, the loss is noncompensable and the appraisal is irrelevant. This is their ground for their Motion in Limine.

It is my counter-argument that I have suffered a much greater loss than that of the general public. The vast majority of the general public doesn't even know that those spaces have been eliminated. They never used those spaces. Just as I have not ever used tens of thousands of the other spaces in the city. To eliminate 2 other spaces somewhere else in front of someone else's property would have absolutely no affect on my or the value of my property whatsoever.

Now, I would be very happy if the State would just allow parking in front of my property again, as it was for over 70 years. But, if they won't do that then I beleive under the constitution of the State of Illinois, I must be comensated justly and fairly. And, under the constitution of the State of Illinois, Section 15, "Such compensation shall be determined by ajury as provided by law."
If a jury is to decide whether or not I shall be compensated, and what the compensation should be, I must be allowed to use my appraisal as evidence to prove that I have suffered a loss in the first place. How could a jury possibly decide what "just compensation" is without an appraisal?

Also, at a previous hearing, the Judge said that the matter of whether or not my damages are compensable is a matter for a jury to decide.

Well, let me know what you think about all this and if you have any suggestions for me.
Thank you for your help Erika,

Sincerely,
bose1954

 

[Michael Wechsler]

I took a look at the excerpt from the Rigney case which deals with eminent domain and the state of Illinois' "takings" clause. Here is the excerpt:

Although it is true that the Illinois Takings
Clause provides protection greater than that
provided by its federal counterpart, the
application of that clause to this case is clear.
The greater protection provided by the Illinois
Takings Clause stems from the fact that the clause
not only guards against a governmental taking of
private property but also guards against
governmental "damage" to private property. See Ill.
Const. art. I, sec. 15 ("Private property shall not
be taken or damaged for public use without just
compensation as provided by law."). The Illinois
courts have long required a plaintiff seeking
compensation for a governmental damaging of his
property rights to demonstrate "an actual physical
invasion by the government onto [his] property."
Forest Preserve Dist. v. West Suburban Bank, 641
N.E.2d 493, 497 (Ill. 1994); Equity Assocs., Inc.
v. Village of Northbrook, 524 N.E.2d 1119, 1124
(Ill. App. Ct.) (holding that plaintiff asserting
that governmental action amounted to a "damaging"
of his property rights must show a "'direct
physical disturbance'" (quoting Rigney v. City of
Chicago, 102 Ill. 64, 81 (Ill. 1881)), appeal
denied, 530 N.E.2d 243 (Ill. 1988). If the
plaintiff cannot make this showing, then his claim
is analyzed under the same standard employed under
the federal constitution--whether the governmental
regulation at issue "radically curtails a property
owner's rights such that 'all economically
beneficial or productive use of [the] land' is
denied." Forest Preserve Dist., 641 N.E.2d at 497
(quoting Lucas v. South Carolina Coastal Council,
505 U.S. 1003, 1015 (1992)).