No Case Law on D204 Land Purchase SUN 3/18

[sushi]

No case law on D204 land purchase

March 18, 2008
By Jennifer Golz [e-mail]
WHEATON -- It's rare that attorneys for Indian Prairie School District 204 and the Brach-Brodie trusts can agree.

But all sides seem to agree there isn't any case law that would support the court ordering the district to purchase the 55-acre parcel it had once sought in a condemnation suit for the future Metea Valley High School.

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That's why Brach-Brodie trust attorney Steve Helm says whatever Circuit Court Judge Robert Kilander rules will be a landmark decision.

"There really isn't any similar precedent that I am aware of where there's been a ruling either way," Helm said. "The judge will have to hear some type of evidence on this.

"We'll see what happens and hopefully whatever is decided is fair to everyone."

The district had planned to add the 55-acre site to an adjacent 25 acres already owned to make an 80-acre campus for the district's third high school. But District 204 officials abandoned the eminent domain suit after a jury valued the property at $31 million - more than twice what the district had thought the land to be worth.

Now District 204 officials are looking to purchase an 87-acre site at Eola and Molitor roads for a reported $16.5 million and build the 3,000-seat high school there.

Helm told The Sun he intended to ask Kilander to require the school district to purchase the 55-acre cite, jointly owned by the Brach-Brodie land trusts, at the jury's $31 million price.

But citing the delay of an appraisal report of damages, he failed to do so during Monday's court appearance in DuPage County Circuit Court in Wheaton.

Attorney for District 204 Rick Petesch called Monday's court appearance a "waste of time" and does not feel there's any merit to Helm's request.

"I think a lot of what's been put out in the papers or set forth by Mr. Helm is designed to scare the residents of 204 into thinking they have to buy Brach-Brodie," Petesch said. "I think it's a bit unfortunate and improper."

Kilander gave the attorneys for the Brach-Brodie trusts 28 days to file claims for their fees, something Helm said he will do by week's end.

If the request to order the district to purchase the property is denied, Helm will be seeking $12 million in damages, which includes about $3 million in attorney fees and witness costs, and the $6 million to $8 million estimated differential from when the trust could have sold the property in 2005, when the condemnation was initiated, than what it can in today's market.

That's only representative of the Brodie trust, as the Brach trust is expected to file its claim for reimbursement next month. Combined, Helm said the damages being sought could top $20 million.

All three sides will reconvene May 13 in DuPage County Circuit Court in Wheaton, when a hearing date on the matter will be set.

[d204mom]

So it sounds like a long shot to force the district to buy the property for $31 million.

However, no mention on the $20 mil they want just for the trouble.

It's actually probably a better deal for them to take $20 mil from us AND keep the land. More profitable anyway.

Oh, and where's our 25 acres? We were told that we'd have an answer on that in 30 days - easy peasy. Just send a letter and it's ours. That was back in January.

Now what happens if the district was wrong about that too and BB can tie up the 25 acres indefinately?

[d204mom]

One other note. We know we're in for attorney fees - definately.

Brodie is going to ask for 3.5 m. What is Brach going to ask for? We've only got 5 mil budgeted for the whole thing. Not including additional damages. Not including damage to remainder nor the decline in value.

[Avenging Eagle]

d204mom said:

On other note. We know we're in for attorney fees - definately.

Brodie is going to ask for 3.5 m. What is Brach going to ask for? We've only got 5 mil budgeted for the whole thing. Not including additional damages. Not including damage to remainder nor the decline in value.

All the fees would be waived if the SB took BB for 31 mm. Although the price is ridiculous(thank a jury of ourselves for that), this still sounds like a compromise to me.

It is simple math, regardless of when the SB keeps saying "we can't afford it", or others say that we can stay on budget at AME IF the penalties are 5mm and we wait until 2010....But BB is over budget.

Well the math adds up as follows:

1. BB would cost us $31 million. (Total = 31 mm)

2. AME/MWGEN would cost us 16 mm + 20 mm BB fees + extra remediation fees + many nights lost sleep wondering about the site's safety + potential health risks to our kids. (Total: much greater than 36 mm)

How come nobody will look at or think about these numbers?

[rural]

Asking for damages is akin to your kids asking for everything they see on tv at Christmas time.

Do they get everything they want? Most commonly no because there's a grownup there (the judge) to say, "No, that's just ridiculous. You deserve this and nothing more."

Of course, from here it's a crapshoot because sometimes you can get millions of dollars for spilling your coffee in your lap and sometimes you'll get nothing but a severe tounge lashing from the judge for trying to be too greedy.

This judge seems to be sensible and, I believe, will be fair to both the District and BB.

[gumby]

It was mentioned on the other board that damages that BB may be able to recover are only for attorneys fees. The SD (being a government entity) isn't subject to other ones.

Does anyone know if that's true? I could look it up, I suppose, but if anyone knows off-hand, that would be good.

[Avenging Eagle]

rural said:

Asking for damages is akin to your kids asking for everything they see on tv at Christmas time.

Do they get everything they want? Most commonly no because there's a grownup there (the judge) to say, "No, that's just ridiculous. You deserve this and nothing more."

Of course, from here it's a crapshoot because sometimes you can get millions of dollars for spilling your coffee in your lap and sometimes you'll get nothing but a severe tounge lashing from the judge for trying to be too greedy.

This judge seems to be sensible and, I believe, will be fair to both the District and BB.

I thought that last time, but again and again the judge and jury ruled against us. We have been continuously smoked, sauteed, and fricasseed. We have been beaten down enough to say 'no mas'.

Please look at the numbers above and realize that we should take the deal.

[WeBe204]

avengingeagle said:

rural said:

Asking for damages is akin to your kids asking for everything they see on tv at Christmas time.

Do they get everything they want? Most commonly no because there's a grownup there (the judge) to say, "No, that's just ridiculous. You deserve this and nothing more."

Of course, from here it's a crapshoot because sometimes you can get millions of dollars for spilling your coffee in your lap and sometimes you'll get nothing but a severe tounge lashing from the judge for trying to be too greedy.

This judge seems to be sensible and, I believe, will be fair to both the District and BB.

I thought that last time, but again and again the judge and jury ruled against us. We have been continuously smoked, sauteed, and fricasseed. We have been beaten down enough to say 'no mas'.

Please look at the numbers above and realize that we should take the deal.

I would have to agree with AE on this. I think even the threat of this situation going wrong should lead the school district to create a back-up plan.

What if (and this is a what if) one of the land holders decides they no longer what to sell. For instance, maybe having their name dragged through the press is not really worth the few pieces of silver they get for the land. Or is it possible there is nothing wrong with the remediation reports, but one of the sellers is not convinced that at the bargain basement price they gave the district they want to be on the hook for the remediation costs. What is the back-up plan? Or another bigger what if. What if the BB ruling does not go in our favor. What do we do?

I am not so fearful these things are going to go wrong. But I would like some planning ahead of time so we are not sitting around staring at each other if something goes really wrong.

(I am using we to mean the school district)

[d204mom]

rural said:

Asking for damages is akin to your kids asking for everything they see on tv at Christmas time.

Do they get everything they want? Most commonly no because there's a grownup there (the judge) to say, "No, that's just ridiculous. You deserve this and nothing more."

Of course, from here it's a crapshoot because sometimes you can get millions of dollars for spilling your coffee in your lap and sometimes you'll get nothing but a severe tounge lashing from the judge for trying to be too greedy.

This judge seems to be sensible and, I believe, will be fair to both the District and BB.

No. SB has continually mislead us on this very topic.

Back in January Daescher says "Oh, judge dismissed damage claim. No more damage claim. No more problems."

That was only half of the story.

The judge dismissed the damage claim because the district hadn't abandoned yet. Judge did not address "the district can't be sued for damages" as some are now claiming. Judge did not rule on the validity of the claim.

Judge expects the damage claim to be filed shortly. HE GRANTED BB 28 DAYS TO PREPARE IT. BB argued YESTERDAY that they need more time to complete their appraisals FOR DAMAGE. AND THE JUDGE GRANTED the continuance.

[doctorwho]

rural said:

Asking for damages is akin to your kids asking for everything they see on tv at Christmas time.

Do they get everything they want? Most commonly no because there's a grownup there (the judge) to say, "No, that's just ridiculous. You deserve this and nothing more."

Of course, from here it's a crapshoot because sometimes you can get millions of dollars for spilling your coffee in your lap and sometimes you'll get nothing but a severe tounge lashing from the judge for trying to be too greedy.

This judge seems to be sensible and, I believe, will be fair to both the District and BB.

Of course when's the last time an entity filed a condemnation suit on a piece of property , won the verdict to buy the land, then turned down taking the property.

[gumby]

doctorwho said:

rural said:

Asking for damages is akin to your kids asking for everything they see on tv at Christmas time.

Do they get everything they want? Most commonly no because there's a grownup there (the judge) to say, "No, that's just ridiculous. You deserve this and nothing more."

Of course, from here it's a crapshoot because sometimes you can get millions of dollars for spilling your coffee in your lap and sometimes you'll get nothing but a severe tounge lashing from the judge for trying to be too greedy.

This judge seems to be sensible and, I believe, will be fair to both the District and BB.

Of course when's the last time an entity filed a condemnation suit on a piece of property , won the verdict to buy the land, then turned down taking the property.

I agree. I don't think the judge is going to be too terribly congenial here. I don't know about these judges, but federal judges get ticked off if you waste the court's time for even a few minutes, let alone for as long as the SD was involved in the BB matter.

Heck, even Judge Judy starts yelling pretty quickly when she's mad.

[Arch]

gumby said:

Heck, even Judge Judy starts yelling pretty quickly when she's mad.

"So, you took this party to court because you wanted their land. Fine. Now, years later after you said you could afford it, the court grants you the right to purchase the land. AND YOU TURN IT DOWN!




"YOU'RE A MORON!"

[rural]

The judge also understands that the school district is working with a fixed budget. The land came back almost double what the district was anticipating.

I'm in the "oh, crap" boat, too. If the damages come back that BB is a more financially suitable property, I as a taxpayer, would expect the SB to go in that direction.

Can we still go in that direction? Do both sides of BB want to sell to the SD? Weren't we ready to make a deal before the quick-take and one side decided to pull out at the last minute?

I don't see the AME closing going through tomorrow, though.

[d204mom]

doctorwho said:

rural said:

Asking for damages is akin to your kids asking for everything they see on tv at Christmas time.

Do they get everything they want? Most commonly no because there's a grownup there (the judge) to say, "No, that's just ridiculous. You deserve this and nothing more."

Of course, from here it's a crapshoot because sometimes you can get millions of dollars for spilling your coffee in your lap and sometimes you'll get nothing but a severe tounge lashing from the judge for trying to be too greedy.

This judge seems to be sensible and, I believe, will be fair to both the District and BB.

Of course when's the last time an entity filed a condemnation suit on a piece of property , won the verdict to buy the land, then turned down taking the property.

You forgot to add... "When the jury returned an award that was in the prenegotiated range set earlier."

[d204mom]

rural said:

The judge also understands that the school district is working with a fixed budget. The land came back almost double what the district was anticipating.

Too bad they didn't tell Judge Kilander that. Instead they agreed to a valuation range of $300 - $600K an acre. In his court.

Jury award came back within that range.

After claiming repeatedly that we could and would pay up to $600K an acre, even offering to put $33 million in escrow to prove that we could and would pay that much (this was at the end of June), the "Oh, judge, we can't afford it" rings pretty hollow.

Then if the BB attorneys bring up the $91 million dollars we are sitting on in excess operating funds, the "Oh judge, we just can't afford it" rings really hollow.