A state appeals panel has ruled a land owner did not have to know an eminent domain ordinance was void, to continue his attempt to undo the forced sale of his property to the Cook County Forest Preserve District.
The Nov. 20 ruling was penned by Illinois First District Appellate Court Justice John Griffin, with concurrence from Justice Mary Mikva and Justice Maureen Connors. The decision was filed as an unpublished order under Supreme Court Rule 23.
The decision favored Allen Hoger in his action against the Forest Preserve District of Cook County.
In 1991, the Forest Preserve District tried to pass an ordinance to let the District take land, through eminent domain, between the Tampier Lake and McGinnis Slough Forest Preserves, near southwest suburban Orland Park. The aim was to connect the two preserves, according to court papers.
In 2003, Hoger and his wife agreed to sell 14.6 acres to the District for $1.7 million, after the District invoked its eminent domain ordinance in Cook County Circuit Court, court records said. However, several months later, the ordinance was invalidated, because a court found the procedure through which it was supposedly enacted was so flawed, the ordinance was considered to have never come into existence.
Hoger returned to court to rescind the sale, on grounds the District had never held any authority to invoke eminent domain, and in fact, allegedly knew the ordinance was invalid from day one.
The District countered Hoger was "tipped off" the ordinance was null, through statements the District made during the discovery process, as well as by the District's tender of a copy of the ordinance to Hoger that was unsigned and therefore defective. Hoger replied he trusted the ordinance was valid based on the District's use of it and statements to that effect.
The District asked Cook County Judge Michael Otto to hold an evidentiary hearing, at which the District said it would show Hoger knew the ordinance was invalid. Otto refused and the District appealed.
Justice Griffin determined, as did Judge Otto, no evidentiary hearing was needed
"Hoger was under no obligation to undertake further investigation to acquire knowledge of the Ordinance’s invalidity, beyond being 'tipped off,' to satisfy the requirements of due diligence. Hoger’s knowledge was deemed at the very least, irrelevant for due diligence purposes, and at most, excused in light of the District’s repeated misrepresentations as to the validity of the Ordinance," Griffin said.
Griffin added: "The District maintained with a vengeance that its eminent domain cases had the support of a valid enabling ordinance."
Griffin criticized the District for maintaining it was not its "misrepresentations, but Hoger's failure to recognize them as such," which was at the root of the case and that called for dismissal because Hoger did not exercise due diligence.
"We roundly reject the District’s contention that 'Hoger is not a victim, but a potential victimizer,' because it unjustifiably shifts the focus away from its own serious misrepresentations," Griffin wrote.
In addition, Griffin knocked the District for having "falsely represented" to Hoger the ordinance was bona fide. Griffin also called the procedure used to adopt the ordinance "glaringly invalid."
The District has been represented by the Chicago firms of Neal & Leroy and Simon & Griseta.
Hoger has been represented by Morrison & Morrison, of Waukegan and Tressler LLP, of Chicago.