dissenting:
I respectfully dissent from the opinion of the majority because I believe the trial judge was correct in denying defendants’ motion to admit valuation testimony based upon the reasonable probability of obtaining an EPA permit.
I agree that valuation testimony, based on the reasonable probability of obtaining an EPA permit for the operation of a sanitary landfill, may be admitted by the trial court if the evidence presented outside the presence of the jury is sufficient. However, as is true in the rezoning context, proof of impending government action must be more than speculative before valuation testimony based on such action can be admitted into evidence. Lombard Park District v. Chicago Title & Trust Co. (1968), 103 Ill. App. 2d 1, 6.
In order to show the reasonable probability of the grant of an EPA permit for a sanitary landfill, examples of properties which have been granted such permits must compare favorably physically with the subject property and/or dissimilarities between the properties must be shown to be amenable to technical modifications which would meet the requirements of the EPA. Further, EPA approvals of such other sites must additionally be shown to have occurred proximately in time to the date of filing of the petition for condemnation. As in rezoning and comparable sales cases, the burden of proof rests with the party seeking to establish the enhanced value by reason of the EPA permit. Department of Transportation v. Western National Bank (1976), 63 Ill. 2d 179.
It seems to me that the correct test for the admission of such evidence is whether sufficient evidence as a matter of law has been adduced. As this court pointed out in Lombard Park District v. Chicago Title & Trust Co. (1968), 103 Ill. App. 2d 1, 9:
“It normally has been held that the burden of proof of the reasonable probability of a change of zoning is on the landowner, at least where such change would enhance the value of the property. 9 ALR 3d 291, 323. As to the rest of the expert witnesses’ testimony: it is for the court to make the preliminary determination of whether there is sufficient evidence of a reasonable probability of rezoning to permit them to testify to market value based on such a probability. If so, it is for the jury to determine the weight to be given such expert’s conclusions as to value based upon the reasonable probability of such rezoning. If the court determines that the evidence falls short, as a matter of law, of showing any reasonable probability of rezoning within the reasonably near future, it must then exclude all such evidence and opinions of value based upon a use permitted only by the rezoning.”
Plaintiff called three witnesses, all of whom testified in essence that the subject property was not suitable for a sanitary landfill, and that issuance of an EPA permit was unlikely.
The subject property was used as a sand and gravel pit. It was adjacent to the Des Plaines River, over a major aquifer, within a flood plain, and in proximity to a residential area. Soil borings did not establish conclusively that the clay bottom was continuous, or that sand and gravel intrusions would not present a pollution threat to nearby well water supplies. Due to the physical characteristics and location of the site, the clay liner proposed for the site was not demonstrated to be adequate protection against potential environmental contamination by the leachate which results from a landfill operation.
The majority points out that the Kankakee landfill site, which received a landfill developmental permit from the EPA one week prior to filing of the instant condemnation petition, was similar enough to the subject property so as to establish the reasonable probability that the EPA would likewise grant a permit for the subject property.
I think one significant difference between the two sites is that Kankakee was an existing landfill operation at the time the developmental permit was granted. There was testimony that the EPA sometimes issues permits for sites where there are inadequate or noncontinuous clay bases and sand and gravel intrusions if the site is already being used for landfill purposes, and further environmental pollution will be prevented by the approval of such remedial measures as a clay liner, leachate drainage system and soil berms. As such, this evidence established only a possibility, not a probability, that such design methods would be approved by the EPA for a proposed new landfill site.
I conclude that the trial court’s decision not to allow the submission to the jury of the evidence of the reasonable probability of the grant of an EPA landfill permit was correct and should be affirmed.