Davis v. Brown

Docket No. 100624.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

MARVEL DAVIS et al., Appellants, v. KIRK BROWN et al.,

Appellees.

Opinion filed June 2, 2006.

JUSTICE McMORROW delivered the judgment of the court,

with opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald,

Kilbride, Garman, and Karmeier concurred in the judgment and

opinion.

OPINION

Section 4B510 of the Illinois Highway Code (605 ILCS

5/4B510 (West 2004)) authorizes the Illinois Department of

Transportation to prepare and record maps that Aestablish

presently the approximate locations and widths of rights of way

for future additions to the State highway system.@ Pursuant to

this statute, the Department of Transportation prepared and

recorded a map that set forth a right-of-way for a proposed

highway, known as the Prairie Parkway, located in northern

Illinois. Plaintiffs, over 40 landowners whose property falls

within the right-of-way, filed an action for declaratory judgment,

seeking to have section 4B510 declared unconstitutional. The

circuit court of Kendall County dismissed plaintiffs= complaint,

primarily on the basis that plaintiffs had not shown any injury

and, therefore, lacked standing. On appeal, the appellate court

reversed the circuit court=s judgment that plaintiffs lacked

standing, but rejected plaintiffs= constitutional arguments on the

merits. 357 Ill. App. 3d 176. For the reasons that follow, we

affirm the judgment of the appellate court.

BACKGROUND

On October 14, 2003, plaintiffs filed a second amended

complaint for declaratory relief in the circuit court of Kendall

County. In their complaint, plaintiffs alleged the following. In

1999, the defendants, the Illinois Department of Transportation

and its then-director, Kirk Brown 1 (collectively, the

Department), began feasibility studies for a proposed highway

that would connect Interstate 80 with Interstate 88 in northern

Illinois. The proposed highway, which was named the Prairie

Parkway, would run north and south through portions of

Kendall, Kane and Grundy Counties.

Under the enabling authority granted by section 4B510 of

the Illinois Highway Code (605 ILCS 5/4B510 (West 2004)), the

Department began preparing a map to establish a right-of-way

for the Prairie Parkway. A public hearing was held on

December 11, 2001, at which time testimony was heard

regarding various proposed locations for the right-of-way.

1

The current director of the Illinois Department of Transportation is

Timothy Martin. He is substituted for Kirk Brown as a defendant in this

action. See 735 ILCS 5/2B1008(d) (West 2004).

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Sometime after the hearing, the Department selected a right-

of-way and completed a final map. The map was filed with the

relevant county authorities on July 31, 2002.

As required by section 4B510, the Department notified

those landowners with property in the Prairie Parkway right-of-

way, including plaintiffs, that the final map had been approved

and filed. After receiving notice, plaintiffs commenced the

present action.

Plaintiffs= second amended complaint challenges the

constitutionality of section 4B510. In relevant part, section

4B510 provides:

AThe Department may establish presently the

approximate locations and widths of rights of way for

future additions to the State highway system to inform

the public and prevent costly and conflicting

development of the land involved.

***

The Department shall make a survey and prepare a

map showing the location and approximate widths of the

rights of way needed for future additions to the highway

system. The map shall show existing highways in the

area involved and the property lines and owners of

record of all land that will be needed for the future

additions and all other pertinent information. Approval of

the map with any changes resulting from the hearing

shall be indicated in the record of the hearing and a

notice of the approval and a copy of the map shall be

filed in the office of the recorder for all counties in which

the land needed for future additions is located.

Public notice of the approval and filing shall be given

in newspapers of general circulation in all counties

where the land is located and shall be served by

registered mail within 60 days thereafter on all owners

of record of the land needed for future additions.

***

After the map is filed and notice thereof given to the

owners of record of the land needed for future additions,

no one shall incur development costs or place

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improvements in, upon or under the land involved nor

rebuild, alter or add to any existing structure without first

giving 60 days notice by registered mail to the

Department. This prohibition shall not apply to any

normal or emergency repairs to existing structures. The

Department shall have 45 days after receipt of that

notice to inform the owner of the Department=s intention

to acquire the land involved; after which, it shall have

the additional time of 120 days to acquire such land by

purchase or to initiate action to acquire said land

through the exercise of the right of eminent domain.

When the right of way is acquired by the State no

damages shall be allowed for any construction,

alteration or addition in violation of this Section unless

the Department has failed to acquire the land by

purchase or has abandoned an eminent domain

proceeding initiated pursuant to the provisions of this

paragraph.@ 605 ILCS 5/4B510 (West 2004).

Plaintiffs= complaint is in three counts. Count I, though

captioned Aviolation of due process,@ is more accurately read

as alleging a takings clause violation. As the Department noted

in its memorandum of law in response to plaintiffs= second

amended complaint, A[u]nderlying/permeating Count I is the

notion that the Defendants improperly used the sovereign=s

police powers, resulting in a regulatory taking.@ Specifically,

plaintiffs allege in count I that under section 4B510, those

landowners whose property falls within the right-of-way

established by a map must give notice to the Department if

they plan to develop their property; that once a landowner has

so notified the Department, the Department has the option to

commence eminent domain proceedings against the

landowner; that this Aoption to take@ has Ano time constraints@;

and that no compensation is provided to landowners under the

statute for the creation of the Aoption to take.@ Two plaintiffs,

Marvel Davis and Rojean Gum, further allege in the complaint

that they would like to develop their property but have not done

so for fear that if they give notice to the Department, as

required by section 4B510, the Department will commence

eminent domain proceedings against them.

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In count II of their complaint, plaintiffs allege that section

4B510 violates separation of powers principles. Plaintiffs allege

that under the state constitution, as interpreted by this court, a

showing of necessity must be made before the power of

eminent domain may be lawfully exercised. According to

plaintiffs, section 4B510 negates this requirement, thus

effectively changing Athe judicial interpretation of the Illinois

Constitution by way of legislative fiat@ in violation of the

separation of powers clause of the state constitution.

Finally, in count III, plaintiffs allege that section 4B510

violates principles of substantive due process. Plaintiffs

contend that section 4B510 Ais an attempt by the State to

freeze property values in anticipation of possible, future land

acquisitions@ and, as such, is Aan impermissible exercise of the

State=s police power.@

After plaintiffs filed their second amended complaint, the

Department filed a motion to dismiss pursuant to section 2B615

of the Code of Civil Procedure (735 ILCS 5/2B615 (West

2004)). The circuit court granted this motion, primarily on the

ground that the plaintiffs had not yet been injured by section

4B510 and so had no standing to pursue their action for

declaratory judgment. On appeal, the appellate court reversed

the circuit court=s judgment with respect to standing. The

appellate court concluded that plaintiffs had sufficiently pled a

threatened injury to their interests so as to meet the pleading

requirements necessary to maintain an action for declaratory

relief. Having reached this conclusion, the appellate court then

accepted plaintiffs= invitation to reach the merits of their facial

challenges to the constitutionality of section 4B510. Citing to

Shortridge v. Sherman, 84 Ill. App. 3d 981, 986 (1980), the

appellate court noted that it had the authority to render any

judgment that ought to have been made in the circuit court (see

155 Ill. 2d R. 366(a)(5)), and that plaintiffs= facial challenges to

the validity of section 4B510 could be addressed on appeal

because they presented pure questions of law. Effectively

treating the case as if the parties had filed cross-motions for

summary judgment, the appellate court rejected plaintiffs=

arguments and upheld the facial validity of section 4B510. We

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subsequently granted plaintiffs= petition for leave to appeal. 177

Ill. 2d R. 315.

ANALYSIS

At the outset, we note that neither party to this appeal

contests the appellate court=s decision to reach the merits of

plaintiffs= facial challenges to the constitutionality of section

4B510. Further, the Department concedes that both Marvel

Davis and Rojean Gum, the two plaintiffs who allege that they

have forgone developing their property because of a fear that

the Department will begin eminent domain proceedings, have

standing to contest the facial validity of section 4B510.

Accordingly, the only matter at issue before this court is the

appellate court=s judgment that section 4B510 is facially

constitutional. 2

Statutes are presumed constitutional. Arangold Corp. v.

Zehnder, 187 Ill. 2d 341, 351 (1999). The party challenging the

validity of a statute has the burden of rebutting this

presumption and clearly establishing a constitutional violation.

In re R.C., 195 Ill. 2d 291, 296 (2001). Moreover, A >it is our

duty to construe acts of the legislature so as to uphold their

constitutionality and validity if it can reasonably be done, and,

further, that if their construction is doubtful, the doubt will be

resolved in favor of the validity of the law attacked.= [Citations.]@

People v. Inghram, 118 Ill. 2d 140, 146 (1987).

Plaintiffs contend that section 4B510 is facially invalid under

three constitutional provisions: the takings clause of the federal

constitution, the separation of powers clause of the state

constitution and the due process clause of the state

constitution. In raising these facial challenges, plaintiffs

2

The Department also asks this court to hold that, aside from Davis and

Gum, no other plaintiff has standing to challenge the facial validity of

section 4B510. In light of our holding that section 4B510 is constitutional on

its face, this issue need not be considered here.

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Amust overcome considerable hurdles:

>A facial challenge to a legislative Act is, of

course, the most difficult challenge to mount

successfully, since the challenger must establish

that no set of circumstances exists under which the

Act would be valid. The fact that the [statute] might

operate unconstitutionally under some conceivable

set of circumstances is insufficient to render it wholly

invalid, since we have not recognized an

Aoverbreadth@ doctrine outside the limited context of

the First Amendment.= @ In re C.E., 161 Ill. 2d 200,

210-11 (1994), quoting United States v. Salerno,

481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct.

2095, 2100 (1987).

Because the appellate court=s judgment that section 4B510 is

constitutional on its face involves only questions of law, our

review is de novo. In re R.C., 195 Ill. 2d at 296.

Takings Clause

The takings clause of the fifth amendment provides that

private property shall not Abe taken for public use, without just

compensation.@ U.S. Const., amend. V. The takings clause is

made applicable to the states through the fourteenth

amendment. Chicago, Burlington, & R.R. Co. v. City of

Chicago, 166 U.S. 226, 41 L. Ed. 979, 17 S. Ct. 581 (1897).

The clearest example of a taking which requires just

compensation under the fifth amendment Ais a direct

government appropriation or physical invasion of private

property.@ Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537,

161 L. Ed. 2d 876, 887, 125 S. Ct. 2074, 2081 (2005).

However, the Supreme Court has recognized that

Agovernment regulation of private property may, in

some instances, be so onerous that its effect is

tantamount to a direct appropriation or ousterBand that

such >regulatory takings= may be compensable under

the Fifth Amendment. In Justice Holmes= storied but

cryptic formulation, >while property may be regulated to

a certain extent, if regulation goes too far it will be

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recognized as a taking.= [Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 415, 67 L. Ed. 322, 326, 43 S. Ct.

158, 160 (1922).] The rub, of course, has beenBand

remains- how to discern how far is >too far.= @ Lingle, 544

U.S. at 537-38,161 L. Ed. 2d at 887, 125 S. Ct. at 2081.

The general principles to be applied in determining whether

a regulation goes Atoo far,@ and thus becomes a taking, are

found in Penn Central Transportation Co. v. City of New York,

438 U.S. 104, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978). In Penn

Central, the Supreme Court observed that, although there was

no A >set formula= @ to apply to regulatory-takings claims, there

are Aseveral factors that have particular significance.@ These

factors include A[t]he economic impact of the regulation on the

claimant and, particularly, the extent to which the regulation

has interfered with distinct investment-backed expectations.@

Penn Central, 438 U.S. at 124, 57 L. Ed. 2d at 648, 98 S. Ct. at

2659. In addition, the A >character of the governmental

action=Bfor instance whether it amounts to a physical invasion

or instead merely affects property interests through >some

public program adjusting the benefits and burdens of economic

life to promote the common good=Bmay be relevant in

discerning whether a taking has occurred.@ Lingle, 544 U.S. at

539, 161 L. Ed. 2d at 888, 125 S. Ct. at 2082, quoting Penn

Central, 438 U.S. at 124, 57 L. Ed. 2d at 648, 98 S. Ct. at

2659. See also Lingle, 544 U.S. at 540, 161 L. Ed. 2d at 889-

90, 125 S. Ct. at 2082 (Athe Penn Central inquiry turns in large

part, albeit not exclusively, upon the magnitude of a

regulation=s economic impact and the degree to which it

interferes with legitimate property interests@).

In the case at bar, plaintiffs concede that the mere filing of a

map setting forth a right-of-way does not, by itself, constitute a

regulatory taking. See, e.g., City of Chicago v. Loitz, 61 Ill. 2d

92, 97 (1975) (Amere planning or plotting in anticipation of a

public improvement does not constitute a >taking= or damaging

of the property affected@); Bauman v. Ross, 167 U.S. 548, 596,

42 L. Ed. 270, 290, 17 S. Ct. 966, 984 (1897); see generally J.

Kemper, Annotation, Plotting or Planning in Anticipation of

Improvement as Taking or Damaging of Property Affected, 37

A.L.R. 3d 127, 132 (1971). Plaintiffs contend, however, that

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section 4B510 does more than just authorize the filing of a

right-of-way map. Plaintiffs point out that, under section 4B510,

once a landowner notifies the Department of any development

plans, the Department is granted what is, in effect, an Aoption

to take@ the landowner=s property. Further, no compensation is

provided the landowner under the statute for the option. In

plaintiffs= view, it is this Aoption to take@ that Acontains the hook

which amounts to a regulatory taking.@

The Department, however, maintains that section 4B510

imposes no economic restrictions on any landowner=s property.

According to the Department, section 4B510 Aneither involves a

physical invasion of property, nor deprives the plaintiffs of any

economically beneficial or productive use of their land. *** The

statute merely requires that if a property owner, within the

boundaries of a highway corridor map, desires to rebuild, alter,

add to or make improvements to an existing structure, or to

create a new structure, the Department must be given prior

notice of such intention and the fair opportunityBif

appropriateBto acquire the property through voluntary purchase

or through its eminent domain power.@

The Department=s contention that section 4B510 places no

economic restriction on any landowner=s property is incorrect.

Once a landowner gives notice to the Department as required

by section 4B510, the Department has 45 days to inform the

landowner whether it intends to acquire the property. 605 ILCS

5/4B510 (West 2004). The Department then has an additional

120-day period either to purchase the property in a voluntary

transaction or to initiate eminent domain proceedings. If the

property is not acquired during this time, the landowner may

proceed with development without restriction under the statute.

However, during the time the Department decides what to do

with the propertyBa reservation period that may last up to 165

daysBdevelopment may not be pursued by the landowner.

Thus, contrary to the Department=s assertions, there is a

potential economic restriction imposed on a landowner=s

property under section 4B510.

However, it has been held that such a restriction does not

amount to a regulatory taking. In Kingston East Realty Co. v.

State, 133 N.J. Super. 234, 336 A.2d 40 (1975), the New

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Jersey appellate court considered the effect of a statutory

scheme similar to section 4B510. In that case, a landowner

applied for a permit to develop its property. Because the

property fell within a highway planning map, the landowner

could not be granted a permit under the applicable New Jersey

law without first obtaining permission from the commissioner of

the state department of transportation. As with section 4B510,

the commissioner had, in total, as much as 165 days either to

acquire the property voluntarily or to commence an action to

condemn the property. Kingston East Realty Co., 133 N.J.

Super. at 241, 336 A.2d at 43-44. Ultimately, the commissioner

took no action against the landowner=s property. The

landowner thereafter contended that the time during which the

commissioner reviewed the matter, and a building permit was

withheld, constituted a taking for which it was entitled to

compensation. Kingston East Realty Co., 133 N.J. Super. at

242, 336 A.2d at 44.

The New Jersey appellate court rejected this argument. The

court acknowledged that the actions of the state in the case

Aconstituted a restriction upon the use of plaintiff=s property,

which can be analogized to an option to purchase since its

imposition was to enable the State, during the period of its

existence, to determine whether or not to acquire the property

for a public purpose.@ Kingston East Realty Co., 133 N.J.

Super. at 243, 336 A.2d at 45. Nevertheless, the court

concluded that the restriction did not amount to a taking. In so

holding, the court emphasized both the beneficial policy behind

the reservation period and its limited time frame:

A[T]he period during which plaintiff was unable to secure

a building permit was substantially less than the one

year period involved in [previous cases]. Moreover, the

restriction thus imposed was reasonably designed to

reduce the cost of public acquisitions. *** [T]he

legislation is based upon a salutary recognition by the

State of its responsibilities for persons displaced by

highway improvements. It seeks to minimize such

economic injury and grave inconveniences by avoiding

these consequences through a restriction against the

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physical improvement of affected property for a limited

period of time ***.

***

*** [T]he restrictions here are for a considerably

lesser period time [than one year], and are not a blanket

reservation. Under this statute, the Commissioner is

required to act affirmatively and promptlyBby making a

decision initially with 45 days and then, if need be,

taking specific action within 120 daysBin order to

conclude the questions of whether the land is to be

acquired for transportation purposes. These statutory

steps are designed to provide some assurance that the

temporary restriction upon the use of the property by the

State shall be expeditiously and carefully reviewed and

shall not last any longer than reasonably necessary to

reach a sound decision on the need for the property for

transportation purposes.@ Kingston East Realty Co., 133

N.J. Super. at 243-44, 336 A.2d at 45.

We find the reasoning of the New Jersey appellate court

persuasive. Applying that reasoning here, we conclude that

under section 4B510 the limited reservation period which

follows a landowner=s notification to the Department does not

constitute a regulatory taking.

Further, we note that even assuming, arguendo, that a 165-

day reservation period could, in some instance, amount to a

taking, plaintiffs have failed to demonstrate the facial invalidity

of section 4B510. Plaintiffs Aface an uphill battle in making a

facial attack on [a statute] as a taking.@ Keystone Bituminous

Coal Ass=n v. DeBenedictis, 480 U.S. 470, 495, 94 L. Ed. 2d

472, 495, 107 S. Ct. 1232, 1247 (1987). To establish the facial

invalidity of section 4B510, plaintiffs must show that the statue

has an effect on the economic viability of every parcel of land

that might fall under a right-of-way map. See Hodel v. Virginia

Surface Mining & Reclamation Ass=n, 452 U.S. 264, 295, 69 L.

Ed. 2d 1, 28, 101 S. Ct. 2352, 2370 (1981) (in a facial takings

challenge, the question is whether the A >mere enactment= @ of

the statute constitutes a taking). Plaintiffs have not met this

standard.

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Consider, for example, that those landowners located within

a right-of-way map who never develop or alter their property

will never be required to notify the Department under section

4B510. These landowners will not trigger the Aoption to take@

provision of section 4B510 or the 165-day restriction period. For

these landowners, the only effect of section 4B510 will be the

creation and filing of the right-of-way map. And, as noted

previously, the filing of a map, by itself, does not constitute a

taking. See, e.g., Loitz, 61 Ill. 2d at 97. Given these facts, the

most that can be said with respect to the facial impact of

section 4B510, that is, the impact the statute has on every

landowner in every right-of-way map, is that the statute creates

the possibility of a 165-day reservation period. We cannot say,

as a matter of law, that the mere potential of a 165-day

reservation period amounts to a per se regulatory taking for

every landowner who falls within a right-of-way map.

Accordingly, we reject plaintiffs= facial takings challenge to

section 4B510.

Separation of Powers

Plaintiffs contend that section 4B510 violates the separation

of powers provision of the state constitution. That provision

provides, with respect to the various branches of state

government, that A[n]o branch shall exercise powers properly

belonging to another.@ Ill. Const. 1970, art. II, '1.

Plaintiffs contend that it is the province of the courts, not the

General Assembly, to interpret the state and federal

constitutions. Plaintiffs further emphasize that this court has

required that there be a showing of Anecessity@ before the

power of eminent domain may be constitutionally exercised.

See, e.g., People ex rel. Director of Finance v. Young

Women=s Christian Ass=n of Springfield, 86 Ill. 2d 219, 232-34

(1981). Plaintiffs maintain that section 4B510 Aallows

condemnation without any legislative finding of need.@ In

plaintiffs= view, all that is required to condemn, under the

authority of section 4B510, is a landowner=s notification of

development or alteration of its property. Thus, according to

plaintiffs, section 4B510 violates the separation of powers

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provision because Athe legislature cannot dispense with the

constitutional requirement of necessity.@

Contrary to plaintiffs= contentions, section 4B510 does not

change the requirement that the Department must prove

necessity to lawfully condemn property. Section 4B510 requires

landowners in the right-of-way to give notice to the Department

if they plan to develop or alter their properties. This notice is

required to enable the Department to determine whether it

wants to negotiate for the land, exercise eminent domain

power, or refrain from taking any action. The notice

requirement does not, however, alter eminent domain law. As

the appellate court below observed, section 4B510 does

nothing to reduce the obligations that the Department must

satisfy if it is to lawfully condemn property. See also

Department of Transportation v. McGovern, 103 Ill. App. 3d

461, 465 (1982) (AIt is essential to observe that section 4B510

of the Illinois Highway Code is not a provision of the Eminent

Domain Act@). Plaintiffs= contention that section 4B510

circumvents the requirements of eminent domain law is

incorrect.

Plaintiffs further argue that, under section 4B510, the

Astandards and criteria by which the [Department] makes a

determination to proceed with the taking process are non-

existent.@ Citing to In re Application for Judgment & Sale of

Delinquent Properties for the Tax Year 1989, 167 Ill. 2d 161,

176-77 (1995), plaintiffs maintain that section 4B510 Aconfers

unfettered discretion upon an administrative agency@ and,

therefore, Aconstitutes an unlawful delegation of power by the

legislature@ in violation of separation of powers principles. We

disagree.

The Department=s eminent domain authority is established

and governed by several provisions under the Highway Code,

including, most notably, section 4B501 (605 ILCS 5/4B501

(West 2004)). Section 4B510 does nothing to alter the eminent

domain requirements set forth in section 4B501 or any other

provision of the Highway Code. These provisions provide the

Department with constitutionally sufficient standards to govern

its discretion. See also Department of Transportation v. First

Galesburg National Bank & Trust Co., 141 Ill. 2d 462, 466-68

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(1990) (rejecting the argument that the Department=s failure to

adopt rules to guide its discretionary power to condemn land

amounts to a due process violation). Accordingly, we reject

plaintiffs= separation of powers claim.

Substantive Due Process

Plaintiffs also contend that section 4B510 violates principles

of substantive due process. In cases that do not concern

fundamental rights, such as the present one, a statute which is

challenged as violating substantive due process need only

survive rational basis review, i.e., the statute must bear a

rational relationship to a legitimate state interest. Tully v.

Edgar, 171 Ill. 2d 297, 304 (1996).

The Department maintains that section 4B510 is rationally

related to numerous legitimate state purposes including, as the

statute itself states, Ainform[ing] the public@ of the proposed

highway by recording a map setting out its proposed path and

preventing Acostly and conflicting@ land development. 605 ILCS

5/4B510 (West 2004). Plaintiffs, however, contend that section

4B510 is nothing more than Aan attempt by the State to freeze

property values in anticipation of possible, future land

acquisitions@ and, as such, is Aan impermissible exercise of the

State=s police power.@

As plaintiffs correctly note, there is a well-established line of

authority, often addressing instances of spot zoning, which

holds that it is an illegitimate state interest to purposefully

depress property values in anticipation of future land

acquisition:

AIn a number of instances it has appeared that although

the zoning ordinances involved therein were ostensibly

adopted in order to regulate land usage in the public

interest, the real purpose for their enactment was to

depress or limit property values in order to minimize the

costs of acquisition of such property in anticipated

condemnation proceedings. Where the evidence has

been sufficient to establish such an ulterior motive, the

courts have not been reluctant to declare such

ordinances unconstitutional and void.@ J. Kemper,

Annotation, Eminent Domain: Validity of AFreezing@

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Ordinances or Statutes Preventing Prospective

Condemnee From Improving, or Otherwise Changing,

the Condition of His Property, 36 A.L.R.3d 751, 755-56

(1971).

An Illinois case which illustrates this principle is Galt v.

County of Cook, 405 Ill. 396 (1950). In Galt, the plaintiff=s

property adjoined North Avenue, a heavily traveled, four-lane

road. The plaintiff=s property had been zoned residential under

a Cook County ordinance, despite the fact that the surrounding

properties were predominantly commercial. Evidence at trial

showed that the land was worth about $20 a front foot as

zoned under the challenged ordinance, and would be worth

from $150 to $300 if zoned for business uses. Galt, 405 Ill. 2d

at 405. In addition, plaintiff=s property was burdened with a

special setback provision that forbid development within 130

feet of North Avenue, a distance far greater than customary.

Evidence at trial established that the setback provision had

been enacted specifically because of plans to widen North

Avenue. The chairman of the commission which drafted the

ordinance testified that the setback was A >in the interest of the

public, [so] that when an improvement does come along as is

planned in this case, the State or the county will not be obliged

to pay excessively for removing improvements which are in the

way of ultimate highway improvement.= @ Galt, 405 Ill. at 402-

03.

On appeal, this court struck down both the residential

zoning and the setback provision. Noting the unusually large

distance of the setback, the court determined that the setback

provision was Aunreasonable, capricious and discriminatory.@

Galt, 405 Ill. 2d at 405-06. In addition, this court stated:

AFurthermore, the record makes it abundantly clear that

the primary purpose of the special setback restriction

was to hold down the cost of acquiring additional land

for the widening of North Avenue and that this was to be

accomplished at the expense of a few individual

landowners. In both purpose and extent the restriction

involved bears no perceptible relation to the public

health, safety, comfort and general welfare. It destroys,

rather than conserves, land values, and being designed

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to conserve public funds in the purchase of land, has, at

the most, only a remote and incidental effect upon the

reduction of traffic congestion. The chancellor correctly

determined that the special setback restriction is

unconstitutional and void in its application to plaintiffs=

property.@ Galt, 405 Ill. at 406.

The present case is unlike Galt and the additional cases

cited by plaintiffs. Section 4B510 is not a zoning regulation and

the acquisition of land is not a hidden or ulterior motive behind

the statute. To the contrary, a right-of-way map filed under

section 4B510 provides a landowner with explicit notification

that the Department may eventually seek to acquire their land.

To the extent that such a map works to depress the value of

land within a right-of-way, this is simply the unavoidable

consequence of the public announcement that a highway will

be built. And, clearly, the announcement of the building of a

highway is not an impermissible governmental purpose. Unlike

Galt, there is no indication that section 4B510 was enacted as a

means to purposefully and improperly drive down the value of

landowners= properties. For these reasons, we reject plaintiffs=

facial, substantive due process claim.

CONCLUSION

Plaintiffs have failed to establish the facial invalidity of

section 4B510. Accordingly, the judgment of the appellate court

is affirmed.

Affirmed.

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