dissenting:
I dissent from the conclusions severally reached in this case.
The order of the trial court finds that defendant’s property is devoted to community and charitable functions. It appears that this finding is not questioned in the trial court, upon appeal, or in the opinions of the members of this court.
Mr. Justice Webber concludes that there is no special use as a matter of law and that the measure of damages is the fair market value of privately owned property. He appears to conclude that a “special use” exists only when the owner of the condemned property is legally obligated to replace the existing facility or there is some “necessity” which requires replacement. With the law so established, it is difficult to discover a reason for the legislature to enact legislation in 1972 which excepts from a market value measure of damages that “property designated as possessing a special use.” Ill. Rev. Stat. (1975), ch. 47, par. 9.7.
As a second approach, Mr. Justice Webber determines that the existing structure does not possess “special capabilities” which make it unmarketable at its true value due to “unique improvements.”
Mr. Justice Green concludes that the building has structural and design qualities which produce “special capabilities” from its “unique improvement” which renders it unmarketable at its true value because there are no prospective purchasers who can utilize those capabilities or improvements.
For such reason he would allow replacement costs but subtract from those costs the percentage of the depreciation of the existing building. This is actually a formula for determining compensation for a privately owned single purpose building. See Note, Cost of Substitute Facilities As A Measure Of Just Compensation When There Is A Private Condemnee, 1975 Duke L.J. 1133, 1142.
As I understand Mr. Justice Green he speaks essentially of a building having a particular design for a single purpose. The opinion in City of Chicago v. G. F. Harding Collection (1965), 70 Ill. App. 2d 254,257 n. 1, 217 N.E.2d 381, 382 n. 1, distinguishes property designed for a special purpose from property having a special use. A “special purpose” structure is of the character of a power generating station, a gas storage facility, or a system of railway tracks.
It cannot be said that the opinion in City of Chicago v. G. F. Harding Collection (1965), 70 Ill. App. 2d 254, 217 N.E.2d 381, is either an authority in or properly applicable to, the question here. The evidence there presented was directed to “special purpose” buildings which the reviewing court distinguished from an award for a “special use.” At most, the property is described as a “private museum.” There is neither evidence nor suggestion that the property played any part as a community venture or use. As that opinion states, counsel had agreed upon the means of computing damages and the court merely found it acceptable. No issue of the proper measure of damages for the facility’s use for a special use was presented or reviewed. I cannot agree that the formula provides guidance upon the question presented here.
We note that depreciation formulae function essentially as an accounting maneuver employed in computing income taxes, and perhaps, as a means of showing a profit. It has no relation to use and function. It is commonly observed that historic and public buildings which have been reasonably maintained may serve the chosen function admirably despite an age exceeding 100 years.
Each colleague turns to the cited Kosydor and Buckles. In neither opinion did the supreme court approach the issues found here. In Kosydor it was agreed that the highest and best use of the property was as an automobile junk yard. The method of valuation and compensation was not an issue. The question was whether the owner was entitled to compensation for moving his machinery and merchandise. In Buckles there was condemnation of an underground easement for the storage of gas. The owner claimed that his measure of compensation was the value of the use of the easement to the condemnor. That position was rejected.
The “special use” here concerned has been described as a “service type property” which is rarely abandoned or sold. Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authority (1956), 335 Mass. 189, 138 N.E.2d 769.
The determinative question is whether the public has a sufficient interest in having such nonprofit service facilities continued so that the condemnor should be required to provide an amount adequate to insure such continuation. The loss being compensated is the deprivation of the benefit of the facilities and the cost of substituted facilities is provided to insure their continued availability. Thus, the objective is not that of compensating the owners, but in indemnifying those that have an interest in the continuing existence of the facilities so used. So it is said that:
“[I]f a condemned facility is reasonably necessary for public welfare, then ‘compensation is measured not in terms of “value” but by the loss to the community occasioned by the condemnation.’ ” 1975 Duke L.J. 1133, 1140.
The rationale of United States v. 564.54 Acres of Land (3d Cir. 1974), 506 F.2d 796 (Lutheran Synod case), is persuasively relevant to the use here presented. That opinion points out that in the context of “substitute facilities” compensation has no relationship to valuation. Rather, the community entity is “entitled to be made whole and sufficient damages must be awarded to finance a replacement facility as anything less would not afford just compensation.” That opinion speaks of the obligation of the Federal Government to indemnify the not-for-profit charitable organization, and quoted from United States v. Fuller (1973), 409 U.S. 488, 490, 35 L. Ed. 2d 16, 20, 93 S. Ct. 801, 803:
“The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness [citation], as it does from technical concepts of property law.”
In interpreting the “taking clause” of the Constitution, the court said that there was no basis for distinguishing between government uses and the community uses of not-for-profit entities in determining the measure of just compensation. 506 F.2d 796, 801.
So the court said:
“The community entity is entitled to be made whole, and making it whole means more than forcing it to abandon its non-profit community use and accept what it could obtain in the marketplace from a profit motivated purchaser. Simply stated this method insures that sufficient damages will be awarded to finance a replacement for the condemned facility. Nothing less would afford just compensation. * * *” 506 F.2d 796, 800.
We note that in Lutheran Synod the government contended that the measure of damages was the market value of the property, or alternatively, the depreciated replacement cost. Rejecting each of the alternatives, the court adopted the view that fair compensation reasonably necessary to public welfare means:
“[C]ompensation * * * measured not in terms of‘value’but by the loss to the community occasioned by the condemnation.” 506 F.2d 796, 800.
So it was said:
“Fair indemnification in such circumstances requires compensation sufficient to provide a substitution for the unique facilities so that the functions carried out by or in behalf of the members of the community may be continued. Depreciated replacement cost often will not permit continuation of such functions.” 506 F.2d 796, 799, 800.
My colleagues express concern that the Association may be enriched by obtaining a new improvement or that there will be claim for enlarged or additional facilities. The objective to be obtained in providing a substitute facility is to provide the “functional equivalent” of the facility presently available. (United States v. Certain Property (2d Cir. 1968), 403 F.2d 800, 803.) There is no requirement of exact duplication. (1975 Duke L.J. 1133, 1136.) Each of the asserted hazards may be controlled by the court upon the evidence presented and the issues raised by counsel. Such method is more likely to achieve fairness in procuring the survival of the community use than a predetermined formula constructed without consideration of any facts which are relevant to the issue.
I would affirm the determination of the trial court that defendant’s property functions as a special use and that just compensation requires an award sufficient to provide substitute facilities. I would reverse in so far as the trial court’s order may be interpreted to fix compensation as the cost of replacing the existing brick building.