concurring in part and dissenting in part:
As stated by Mr. Justice Webber, I concur in the decision to reverse the interlocutory order of the trial court and to remand. I also concur in the decision to issue a certificate of importance. I agree with Mr. Justice Webber that the “substitute facilities” measure of just compensation is not correct for use in this case. I disagree with him, however, in his conclusion that “actual fair cash market value” is the correct measure.
The State constitutional authority for taking private property for public use (Ill. Const. 1970, art. I, §15) requires that the entity whose property is taken not end up poorer because of the taking. (City of Chicago v. Koff (1930), 341 Ill. 520, 173 N.E. 666.) Public policy also requires that the entity does not end up richer. (Department of Public Works and Buildings v. Hubbard (1936), 363 Ill. 99,1 N.E.2d 383.) In a case of this nature, the determination of a measure of damages that will meet both of these requirements is, obviously, most difficult.
I conclude that application of the fair cash market value rule to this case would inevitably result in the condemnee here ending up much poorer as a result of the condemnation. In the absence of an Illinois case directly in point, I consider the cited dictum from Kosydor to be the most definitive statement available. However, I do not agree that Mr. Justice Schaefer intended that only the very unusual church, school or terminal come within the exception to the market value rule. Rather I consider the opinion to clearly state that churches, schools and terminals are the types of buildings which, because of the “special capabilities” brought about by their “unique improvements” are “unmarketable” at “true value.” The obvious reason that such properties are unmarketable at their “true value” is the absence of prospective purchasers who can utilize the special capabilities of the properties. I recognize that most commercial structures, such as the factory in Farwell have improvements that few prospective purchasers can fully utilize but a reasonable use can usually be made and market value is a fair measure of compensation. I know of no ruling or dictum of a reviewing court that would limit the exception to the market value rule to properties of historical significance or those enjoying special legal privilege.
The Y.W.C.A. building in question had a swimming pool, a gymnasium, a chapel, and several large meeting rooms as well as three kitchens. The floors of several of the rooms were reinforced so that they could be used as a gymnasium. The capabilities of these unique improvements could only be utilized by an organization like the Y.W.C.A. which combines worship with athletic, cultural and community endeavors. Other than the Y.M.C.A., there are few, if any, organizations in most communities of similar size with a similar combined program. It is hard enough to sell most older downtown multistory buildings. It is obvious that on the open market this property would sell at a price that would have little, if any, reflection of the true value of the combined capabilities of the property. Its market value would be as unrelated to its true value as would be the case with a church, school or terminal.
No Illinois decisions have extended the “substitute facilities” rule for determining compensation to a charitable entity. I do not deem it to be constitutionally mandated and I agree with Mr. Justice Webber that determining fairly which of the many and ever growing number of charities are entitled to its aid would be a most difficult task. Moreover, requiring the trier of fact to determine the kind of facilities that would be necessary to replace the existing ones introduces another factor of uncertainty into an already speculative procedure. Great incentive would be placed upon the condemnee to contend that it requires the most extensive new facilities. Furthermore, the substitute facilities would almost always include a new structure and the condemnee and its users would thus be getting the benefit of a new facility in place of an old one.
In the absence of Illinois precedent as to the measure of just compensation in a case of this nature, I consider the fairest measure of damages to be that agreed upon by the parties in City of Chicago v. George F. Harding Collection (1965), 70 Ill. App. 2d 254, 217 N.E.2d 381, where, as has been stated, the city condemned a private museum and the land upon which it stood. The parties agreed that the measure of damages would be: (1) the market value of the land taken as a separate element and (2) the present cost of reproducing a like building minus the percentage of that cost determined to be the percentage of depreciation of the existing building.
Unlike cases where the market value is the measure of damages (Department of Transportation v. Quincy Coach House, Inc. (1976), 64 Ill. 2d 350, 356 N.E.2d 13), this rule would permit the condemnee the benefit of a separate valuation of the land and the reproduction cost of the building. Each valuation would be far less speculative than determining the cost of acquiring suitable substitute land and erecting a suitable substitute building upon that land. In most cases where the property is unmarketable at true value because of the nature of the facilities, permitting a separate valuation for the land would obviously be a substantial benefit to the condemnee. Consideration of depreciation, on the other hand, recognizes that the facility taken is ordinarily not the equivalent of a new one.
Upon obtaining a condemnation award, a condemnee charity is in the flexible position of being able to design a new facility to meet any changes in operations that are deemed desirable. A facility can be built having greater capacity for one type of activity and less for another type than the existing structure. Money spent on rebuilding a good heating system now may save fuel bills in the future. Ordinarily, some sort of change in the capital structure of the entity would be likely to take place. I conclude that the measure of damages agreed upon in Harding would make the condemnee here no poorer after the condemnation.
I would order that measure of damages to be used at trial.