specially concurring:
The doctrine of stare decisis requires this court to follow the unit rule where a partial taking occurs. For that reason, I concur in the majority’s answer to the certified question. I write separately in the hope that our supreme court would revisit this issue.
The unit rule, first articulated in Illinois in 1873, requires that the value of the property taken be determined, not based upon its own value, but only as a part of the whole tract held by the landowner. Page v. Chicago, Milwaukee & St. Paul Ry. Co., 70 Ill. 324, 327-28 (1873); see also Chicago & Evanston R.R. Co. v. Blake, 116 Ill. 2d 163, 168-69 (1886).
As the majority notes, the unit rule generally prohibits land, in partial takings, from being valued differently and separately from the whole. Forest Preserve District of Cook County v. Wing, 305 Ill. 194, 196 (1922). I am aware of no authority to establish that our supreme court has ever departed from the unit rule.
According to the majority, the Second District of the Appellate Court “extended” the unit rule in Department of Transportation v. HP/Meachum Land Limited Partnership, 245 Ill. App. 3d 242 (1993), to “allow for certain partial takings to be valued separately if there are clearly cognizable different highest and best uses for the land.” 352 Ill. App. 3d at 281. I disagree with this characterization of HP/ Meachum as a “narrow extension” of the unit rule. Focusing on the differing values of wetland and nonwetland throughout the entire parcel and noting that the taken parcel contained almost no wetland, the HP/Meachum court held that application of the unit rule misrepresented the true value of the specific portion taken. HP/ Meachum, 245 Ill. App. 3d at 254. The court then allowed valuation of the taken parcel in a manner that departed from the fundamental principle of the unit rule, i.e., “ ‘price per acre or price per square foot’ ” of the entire parcel. HP/Meachum, 245 Ill. App. 3d at 254. In clear contravention of the “unit rule,” the HP/Meachum court held that “[w]hen the highest and best use of the property is not uniform throughout the tract in question, an appraiser may testify to the highest and best use for the different portions of the full tract involved.” HP/Meachum, 245 Ill. App. 3d at 256. In other words, the HP/ Meachum court departed from the unit rule. I would characterize a departure from a rule as an “exception” to, not an extension of, that rule.
In the instant matter, the evidence clearly established that the highest and best use of the property was not uniform throughout the tract in question. Evidence established that there were tracts of commercial, residential, agricultural and wetlands throughout the whole tract. Reading HP/Meachum as an exception to the unit rule, I would hold that, where it is possible to differentiate the value of the land to be taken from the whole of the parcel, an appraiser may testify to the value of the different portions of the parcel, including the parcel to be taken.
The purpose to be accomplished in condemnation proceeding is to provide “just compensation” to the landowner as determined by the fair cash market value of the property at its highest and best use. City of Chicago v. Anthony, 136 Ill. 2d 169 (1990). The unit rule almost never achieves that purpose. Simply put, the unit rule ignores realities of land valuation and should give way. The approach articulated in HP/Meachum is not an extension of the unit rule, but an exception that should be allowed to swallow up the rule. Our supreme court should revisit the issue.
SCHMIDT, J., joins in this special concurrence.