No Case Law on D204 Land Purchase SUN 3/18

[d204mom]

doctorwho said:

gumby said:

You've already said more than I know. Wish Icould be more helpful.

I was looking through the Illinois statutes very briefly and I think you're right aout the tort act applying only to punitives, etc. I can't seem to find anywhere that the damages are limited only to actual attorneys costs.

I know the SB is banking on that given the low dollar amount that they seem to have set aside. But, I can't find any statute that confirms it.

Should be in here or could lead you there:

www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2819&ChapAct=735%26nbsp%3BILCS%26nbsp%3B30%2F&ChapterID=56&ChapterName=CIVIL+PROCEDURE&ActName=Eminent+Domain+Act%2E

Isn't Helm an eminent domain specialist ? Let's hope it's not another case of the SB firm in an area not their specialty as far as their guidance on what could be due.

I don't know, do eminent domain specialists give lectures at "An Advanced Two-Day Conference On Eminent Domain"? I didn't see Whitt Law on the list of experts.

www.lawseminars.com/section_details/05EDIL.htm

An Advanced Two-Day Conference on
Eminent Domain
New court decisions and regulations are changing the traditional rules
August 29 & 30, 2005
The Mid-America Club in Chicago, IL

What You Will Learn
*Is There Any "Quick" to Quick Take? *New Federal Relocation Regulations and Their Application *Development vs. Hydrology *The Kelo Case *Choosing the Date of Valuation: Kirby Forest Industries, Inc. v. U.S. *TIFs, Blight and New Challenges *Franchises and Licenses *Valuing Cemeteries and Other Wasting Resources *Special Address: "Six Months in Eminent Domain" ~ The Honorable Rita M. Novak *Special Issues in Relocating Cemeteries *Acquisition for Development: New Prospects and Opportunities
---------------------------------------------
3:45 pm Choosing the Date of Valuation: Kirby Forest Industries, Inc. v. U.S.

Advocate for changing valuation date
Stephen D. Helm, Esq.

Steve Helm & Associates / Naperville, IL
------------------------------------------

Stephen D. Helm has concentrates his practice in eminent domain and land use litigation. His primary practice through the early 1990's was representing public bodies, while the current emphasis at Steve Helm & Associates is representing private parties in eminent domain and inverse condemnation cases in DuPage, Will, Kendall, Kane, and Cook Counties in Illinois.

[JB]

steckmom said:

Here’s my quick research, mostly off the top of my head, legal analysis of the damages situation. First there is the Illinois Local Government and Government Employees Tort Immunity Act, which limits damages paid by municipalities and local governments. This case is not a tort, but the IL Supreme Court has held that the statute may apply to non-tort cases. From what I could tell though, the Immunity Act only provides only that municipalities are not liable for punitive or exemplary damages. I didn’t see anything else.

Second, to me it looks like under a traditional eminent domain proceeding, the government has the right to reject the land if the jury price is too high. However, it looks like there were a couple of federal cases out there that hold that the taking begins at the time the government tied up the land, not at the time the price was set. In other words, BB could have legitimate arguments that they are entitled to compensation for the land being tied up.

I don’t know, I’m not an expert, but the answer doesn’t look clear to me. I think BB has a case. Gumby, any other lawyers, or anyone that just knows, feel free to correct me if I’m wrong.

OK, I hate to admit this, but this is kind of interesting (it would be more so if it wasn't happening to us )

So I have a question - is the SB, in effect, somewhat shielded from legal damages?

eta - here's the real question:

Big Company A sells to Local Gov B through an "as is, no liability" sale. Someone gets hurt on Local Gov B's land by something left there by Big Company A. If Local Gov B is "shielded", does that paint a bigger target on Big Company A?

[steckmom]

jb said:

steckmom said:

Here’s my quick research, mostly off the top of my head, legal analysis of the damages situation. First there is the Illinois Local Government and Government Employees Tort Immunity Act, which limits damages paid by municipalities and local governments. This case is not a tort, but the IL Supreme Court has held that the statute may apply to non-tort cases. From what I could tell though, the Immunity Act only provides only that municipalities are not liable for punitive or exemplary damages. I didn’t see anything else.

Second, to me it looks like under a traditional eminent domain proceeding, the government has the right to reject the land if the jury price is too high. However, it looks like there were a couple of federal cases out there that hold that the taking begins at the time the government tied up the land, not at the time the price was set. In other words, BB could have legitimate arguments that they are entitled to compensation for the land being tied up.

I don’t know, I’m not an expert, but the answer doesn’t look clear to me. I think BB has a case. Gumby, any other lawyers, or anyone that just knows, feel free to correct me if I’m wrong.

OK, I hate to admit this, but this is kind of interesting (it would be more so if it wasn't happening to us )

So I have a question - is the SB, in effect, somewhat shielded from legal damages?

eta - here's the real question:

Big Company A sells to Local Gov B through an "as is, no liability" sale. Someone gets hurt on Local Gov B's land by something left there by Big Company A. If Local Gov B is "shielded", does that paint a bigger target on Big Company A?

I don't know, but I suppose it probably does.

Here's some light reading on the issue of immunity:

tinyurl.com/343uw7

The short answer though is that although the SD wouldn't be liable for punitive damages, but they could be liable for other damages.

[d204mom]

I thought the BB damages were actual damages due to the school district's condemnation actions, not punitive... ?

The same kind of damages that the jury awarded them earlier during the trial (2.5 million). Those weren't punitive, either.

So there is already precedence in awarding damages to BB. If actual damages aren't allowed against a school district the judge would have thrown out the 2.5 M damage to remainder award.

[macy]

d204mom said:

I thought the BB damages were actual damages due to the school district's condemnation actions, not punitive... ?

I think so as well. Punitive damages, I've been able to get an answer on, actual damages are still very questionable.

Anyone?

[Avenging Eagle]

d204mom said:

I thought the BB damages were actual damages due to the school district's condemnation actions, not punitive... ?

The same kind of damages that the jury awarded them earlier during the trial (2.5 million). Those weren't punitive, either.

So there is already precedence in awarding damages to BB. If actual damages aren't allowed against a school district the judge would have thrown out the 2.5 M damage to remainder award.

The pump has been primed to suck all the money out of our pockets and into BB's, so what makes you think it will stop now?

All they have to do is push the lever up and down a few times to keep it comin.

The only way to stop it, is to give them some bottled water and convince them not to go back to the well anymore.

[d204mom]

jb said:

steckmom said:

Here’s my quick research, mostly off the top of my head, legal analysis of the damages situation. First there is the Illinois Local Government and Government Employees Tort Immunity Act, which limits damages paid by municipalities and local governments. This case is not a tort, but the IL Supreme Court has held that the statute may apply to non-tort cases. From what I could tell though, the Immunity Act only provides only that municipalities are not liable for punitive or exemplary damages. I didn’t see anything else.

Second, to me it looks like under a traditional eminent domain proceeding, the government has the right to reject the land if the jury price is too high. However, it looks like there were a couple of federal cases out there that hold that the taking begins at the time the government tied up the land, not at the time the price was set. In other words, BB could have legitimate arguments that they are entitled to compensation for the land being tied up.

I don’t know, I’m not an expert, but the answer doesn’t look clear to me. I think BB has a case. Gumby, any other lawyers, or anyone that just knows, feel free to correct me if I’m wrong.

OK, I hate to admit this, but this is kind of interesting (it would be more so if it wasn't happening to us )

So I have a question - is the SB, in effect, somewhat shielded from legal damages?

eta - here's the real question:

Big Company A sells to Local Gov B through an "as is, no liability" sale. Someone gets hurt on Local Gov B's land by something left there by Big Company A. If Local Gov B is "shielded", does that paint a bigger target on Big Company A?

Google Love Canal. Big Company A still had to pay up, even after they wrote crazy legaleeze goblygook "we're not liable" into the contract:

Prior to the delivery of this instrument of conveyance, the grantee herein has been advised by the grantor that the premises above described have been filled, in whole or in part, to the present grade level thereof with waste products resulting from the manufacturing of chemicals by the grantor at its plant in the City of Niagara Falls, New York, and the grantee assumes all risk and liability incident to the use thereof. It is therefore understood and agreed that, as a part of the consideration for this conveyance and as a condition thereof, no claim, suit, action or demand of any nature whatsoever shall ever be made by the grantee, its successors or assigns, against the grantor, its successors or assigns, for injury to a person or persons, including death resulting therefrom, or loss of or damage to property caused by, in connection with or by reason of the presence of said industrial wastes. It is further agreed as a condition hereof that each subsequent conveyance of the aforesaid lands shall be made subject to the foregoing provisions and conditions.

en.wikipedia.org/wiki/Love_Canal

[steckmom]

d204mom said:

I thought the BB damages were actual damages due to the school district's condemnation actions, not punitive... ?

The same kind of damages that the jury awarded them earlier during the trial (2.5 million). Those weren't punitive, either.

So there is already precedence in awarding damages to BB. If actual damages aren't allowed against a school district the judge would have thrown out the 2.5 M damage to remainder award.

Yes, as far as I know, there are no punitive damages at issue in the BB case. My earlier point was just that I only could see immunity for punitive damages, and why I think that the concept of governmental immunity that some have claimed, doesn't apply.

I was moving on to the other question about future liability for the MWGEN site.

[d204mom]

steckmom said:

d204mom said:

I thought the BB damages were actual damages due to the school district's condemnation actions, not punitive... ?

The same kind of damages that the jury awarded them earlier during the trial (2.5 million). Those weren't punitive, either.

So there is already precedence in awarding damages to BB. If actual damages aren't allowed against a school district the judge would have thrown out the 2.5 M damage to remainder award.

Yes, as far as I know, there are no punitive damages at issue in the BB case. My earlier point was just that I only could see immunity for punitive damages, and why I think that the concept of governmental immunity that some have claimed, doesn't apply.

I was moving on to the other question about future liability for the MWGEN site.

OK got it.

[macy]

steckmom said:

d204mom said:

I thought the BB damages were actual damages due to the school district's condemnation actions, not punitive... ?

The same kind of damages that the jury awarded them earlier during the trial (2.5 million). Those weren't punitive, either.

So there is already precedence in awarding damages to BB. If actual damages aren't allowed against a school district the judge would have thrown out the 2.5 M damage to remainder award.

Yes, as far as I know, there are no punitive damages at issue in the BB case. My earlier point was just that I only could see immunity for punitive damages, and why I think that the concept of governmental immunity that some have claimed, doesn't apply.

I was moving on to the other question about future liability for the MWGEN site.

Ok, I'm the first to admit, I'm a legal dumb a**.

If you could be so kind to explain, punitive damages (I thought they were already awarded at $2.5 mil for the damage to the remainder of the BB property).

What about further damages to holding the property from being sold from 12/05 til 12/07? Nothing?

[d204mom]

macy said:

steckmom said:

Yes, as far as I know, there are no punitive damages at issue in the BB case. My earlier point was just that I only could see immunity for punitive damages, and why I think that the concept of governmental immunity that some have claimed, doesn't apply.

I was moving on to the other question about future liability for the MWGEN site.

Ok, I'm the first to admit, I'm a legal dumb a**.

If you could be so kind to explain, punitive damages (I thought they were already awarded at $2.5 mil for the damage to the remainder of the BB property).

What about further damages to holding the property from being sold from 12/05 til 12/07? Nothing?

I think smom was saying BB's damage claims might stick.

[macy]

d204mom said:

macy said:

Ok, I'm the first to admit, I'm a legal dumb a**.

If you could be so kind to explain, punitive damages (I thought they were already awarded at $2.5 mil for the damage to the remainder of the BB property).

What about further damages to holding the property from being sold from 12/05 til 12/07? Nothing?

I think smom was saying BB's damage claims might stick.

Sorry, you are all speaking well above my head here.

Thanks for clarifying. Like I said, I spent all day trying to find a similar eminent domain case to compare our situation. Couldn't find one.

Thanks smom and gumby for your thoughts.

[steckmom]

macy said:

d204mom said:

I think smom was saying BB's damage claims might stick.

Sorry, you are all speaking well above my head here.

Thanks for clarifying. Like I said, I spent all day trying to find a similar eminent domain case to compare our situation. Couldn't find one.

Thanks smom and gumby for your thoughts.

That is what I meant.

Macy, I knew you were looking for cases, so here's a couple. They're federal cases, not state, so not exactly what you're looking for, but if there really is no state law...

from the 9th circuit-

bulk.resource.org/courts.gov/c/F2/671/671.F2d.336.79-4547.html

and

from the 5th circuit-

bulk.resource.org/courts.gov/c/F2/696/696.F2d.351.81-2471.81-2402.html

The cases disagree with each other.

Here's an excerpt from one of them:

Until taking, the condemnor may discontinue or abandon his effort. The determination of the award is an offer subject to acceptance by the condemnor and thus gives to the user of the sovereign power of eminent domain an opportunity to determine whether the valuations leave the cost of completion within his resources. Condemnation is a means by which the sovereign may find out what any piece of property will cost. "The owner is protected by the rule that title does not pass until compensation has been ascertained and paid, ..." A reduction or increase in the value of property may occur by reason of legislation for or the beginning or completion of a project. Such changes in value are incidents of ownership. They cannot be considered as a "taking" in the constitutional sense.

Despite this, I still think it could go either way on the damages, and given the strength off the BB attorneys, my money is on them. Well, I guess it actually will be.

[steckmom]

And here is the what I think is the specific Illinois statute wording on the situation where the government decides not to purchase the land (thank you, Gumby):

If the plaintiff dismisses the complaint before the entry of the order by the court first mentioned in this subsection (a) or fails to make payment of full compensation within the time named in that order or if the final judgment is that the plaintiff cannot acquire the property by condemnation, the court shall, upon the application of the defendants or any of them, enter an order in the action for the payment by the plaintiff of all costs, expenses, and reasonable attorney fees paid or incurred by the defendant or defendants in defense of the complaint, as upon the hearing of the application shall be right and just, and also for the payment of the taxable costs.

(735 ILCS 30/10‑5‑70)

[yeson321]

steckmom said:

And here is the what I think is the specific Illinois statute wording on the situation where the government decides not to purchase the land (thank you, Gumby):

If the plaintiff dismisses the complaint before the entry of the order by the court first mentioned in this subsection (a) or fails to make payment of full compensation within the time named in that order or if the final judgment is that the plaintiff cannot acquire the property by condemnation, the court shall, upon the application of the defendants or any of them, enter an order in the action for the payment by the plaintiff of all costs, expenses, and reasonable attorney fees paid or incurred by the defendant or defendants in defense of the complaint, as upon the hearing of the application shall be right and just, and also for the payment of the taxable costs.

(735 ILCS 30/10‑5‑70)

Please help me understand what this means in relation to Brach-Brodie and their request for compensation for the decreased land value. I can't follow the language above as to whether this case fits the statute (i.e., since SD 204 went through all of the proceedings and didn't abandon the property until the last possible moment based on the judgment, is this statute applicable).

Thanks!