request that this court reversed the judgment of the trout court granting the defendants traverses motion to dismiss it as it is against the manifest weight of the evidence as justice hudson knows this action comes to the court for a nd time and that he wrote the property is being taken so that the city can have constructed a public road which will be known as rectory road the public road it will be sixty six feet in width from side to side and it will extend a length of one thousand four hundred feet property in the city agreed as many developers do to to promote development it agreed that it would construct the public road that the city had a lot of plans to be built in this property so as part of the annexation agreement a count own development the road where well the plants have not been submitted for the roadway but we know that they probably have to be just has to be constructed to city standards so while there might not be engineering plans for the road it's very clear that the city standards for public roads do you do require in will be required for this roadway so it's it's actually not necessary at this time in my belief that actual construction plans exist what is necessary is for the understanding that the road will be built to city standards and the city standards will be as the city engineers determines best for the city because it is going to be a public road now the road as a fence will argue the road w in the public domain but secondarily the ripley road and served as the ingress egress to the thirty seven acre development and that is because it does provide the best access to north avenue and now particularly because i doubt has alighted to be a full access interchange it with the potential to be a signal east intersection it only makes sense if you're going to have thirty seven acres under development as a business park in the city you want it to have the  pursuant to the agreement the city is contractually obligated to acquire the street so the county may develop and use the road for its own business purposes and he makes a statement that a tool from a disability to fulfill their obligations too only to benefit mr conti and the development of that property in fact if you look back into the public record which we've addressed the city to the city had learned believe that this property was property to be developed as a public road and seeking to acquire the property now that was to realize the city's long held belief that this was public property eligible to be developed as a major roadway which could serve the county development as it does with many developers when a developer comes in and needs public infrastructure to be built to serve its development it's not unusual for minutes appellate e to put the financial burden of the construction of the public infrastructure on the developer that doesn't mean that the  structure is solely for that private developer it means that the developer is recognizing the public infrastructure will serve its development and the city as a whole so in this case it's not unusual for the city in the developer to agree that it  would build the road but it would build a road within right of way owned by the city according to city standards that the use of the property would be public in all nature and not solely for their own private property and that the use the road would be no there will be as opposed to that you know that trial court in its opinion relied on three cases and one of the cases was one that i have cited which the city of chicago versus  which i cited for general reasons in which the court held that if the right of kind of mission is that being abused the court cannot deny the right to condemn on the grounds that the exercise of power unnecessary not expedient that's one of the arguments that defendants made we don't have a current use for the roadway that's not good enough because that power to determine need is tested in the legislature or the legislature of the legislative branch of government in different i've argued this continuously in st at one of the major differences between sweden and our case is that in sweden at that condemning authority was clearly and unequivocally acquiring private property solely to transfer title to that private property to a private developer to use for a parking lot that parking lot may have been open to the public to access the raceway but they were going to have to pay a fee to be able to do that so when you look at the facts there are public acquisition of crime it property merely to serve a private developer who is going to charge a fee for the use of the land that had been acquired by the  sweet and the space to do that it's different here the city is seeking to condemn private property so that it can can it can have constructed on its property a road the title to the road will remain in the city it was chicago when the road is built the road itself becomes part of the city's title property there will be no fee to anyone to be able to access this property and it will be able to be used by argument that the absence of a well developed plan supports the inference that the taking his hat or public use well i suppose that depends on what develops plans we believe need to be in place if it's a row if it's the plan for the roadway there is a plan for the roadway it doesn't have to be a court i don't have a single court case that says you have to have a fully engineered constructed  sir ok even in that we know many things about that property it's thirty seven dollars acres it's to be built as a private does there is a business park in the city west a condo within the enix ation illinois law that it be more than that is a matter of fact one of the cases that we cite which is the current district case in that case the court clearly says that you you actually don't need the city in that case i do want to separate that case a little bit because meccas the court was concerned about the development plan for the property being taken which was to pay for part and the court said well  require the public road so it really doesn't the only time neck i'm going to play is if a court could say you don't have a current need for the route but illinois law also holds relative to planning for  point all talk about we can't hobble i condemn nor to present facts you can't say to a legislator your planning has to be static at the moment the cases say and condemn any authority has the right in the application to its  ma'am what if the a group chooses not to develop that thirty seven acres their antics ation agreement suggests that they show it and that was their intention but does it say they must develop it though there is always you know as we know from particularly the last year there are always just outside influences that affect development the city is doing what it believes that's through the city which is with the development with the developer in place we know that the development has to be a business part we're trying to provide a road that will serve well that business park in its development the customers all the future owners trades that might be going in  happen but you do always have to plan for it for growth in your community its properties what we're planning and that's exactly what the city has done in this case since it's so does what it's for one more question then wes chicago may not have miracle of communication yes the development plan is for a business part that is what the city and the owner of the property and vision and that's what this plan inc is in hopes of becoming reality are maybe minor modifications to the plan in the future but most developers want to proceed with development that brings back the benefit to themselves and the city of course wants to foster development that's a benefit to the city and its residents so it while we might face this face some hurdles because the economic downturn and every team unity faced problems with them but it didn't stop forward planning and it didn't it didn't stop the city from wanting to make sure that we had proper infrastructure in place to be able to address all of the development that we hope occurs to most cases we do hope that it country goes forward with its development and we would be encouraging that is the city projecting any specific income via tax revenue or anything from that property that they put of record at this point there was nothing put in record relative looking to foster development of the land to bring in more businesses more growth more you know more if we are a community seeking to grow and this is a good place for development and it was say it if the enix ation was based upon the fact that this road was a public road or was designated as a public road and in fact it is not  and that is why it's not necessarily to satisfy contrary that the city has such a queer the property but it is too to do what the city thought which is to bring this property into the public domain and as a result of the property being within the public domain it can't you then does the contractual obligation to construct a public road for the city that will allow for expansion and development of the property so i think that the city is w make is the important thing here is the court has to determine whether the defendants did provide clear and convincing evidence at the man at the evidence  hearing that there was an abuse of discretion by the city were chicago in determining that this property was necessary that's that's key to what the reasons for judge hudson justice had his decision they didn't then the court should not look into the purview or the legality of the city's legislative determination that the property is in fact subject to kind of mission has been necessary for a public road and that's that's a perfect spot to tell you your time is up and mr simpson can i ask i assume can answer or answer the question for his client on his reply so you will have an opportunity for   he was asked about why was this property taken and the st thing that repeatedly came out of his mouth was we had an obligation per an annexation agreement with the property owner to the west the counties that the road would be constructed his answer was repeatedly that this taking was to fulfill a private contractual obligation and then he was asked repeatedly about economic development and he admitted on the witness stand that there were no development plans for this property when kaante approached the city about annexation and you would agree that there is no legal requirement is there as a prerequisite you must have in all cases development plans to justify the thinking you may not need to have a written out fully executed development plan but you do have to have a plan you have to have some concept you have to be able to articulate what the development is in mr gutman could not he was asked repeatedly and he admitted repeatedly that no development plan has ever been submitted in this case he admitted the stand that there wasn't even a concept plan for the development of this property he admitted that no end users had been identified for this property he even said that he was not aware of any development plans in the narry stages he could offer nothing about an economic plan or a development plan in this case and i don't know if he was really disputed by anybody but isn't a court in title looking at the case but the take into consideration the future needs in the future developmental requirements even without a plan if somebody can articulate a future need and they it need is supported like in the cases that with some sort of study or finding or concept sure but in this case there was none of them the best at the city could muster is to offer a single sheet of paper from two thousand  color coded man that listed different areas of the city of west because i go and different uses that might be applied to those different areas under that map they could take any any part of the of any road in any city to date or any part of the city before for four eminent domain and i think what is critical is that if you look at pages are sixty and sixty one of the record after gutman s answered the initial question why do you want to take the property and he said well we have an obligation of a private contractual obligation with the property owner to the west and we need to fulfill when he said if we don't take it that could make it problematic with the property owner and then mystics and ask her own witness did it also fulfill any future land planning for the city of west the congo to have their property under public control a very leading eating easy question for mr gutman to answer and you know what he said in response he said yes we hoped for there to be a nice business park there at some point in time we hoped it would happen   hope is not a public purpose it is not in furtherance of the public purpose it is constitutionally infirm to argue that a hope is a public purpose and i heard repeatedly dixon argued with all due respect the word hope throughout her argument that we hope to do this and we hope to do that but justice hutchinson asked the very pertinent in pointed question what if they choose not to develop the property because it seems like right now this could go either way and that was a very good question to which an answer has not been provided because yesterday and i hope i have another very good question and that is how exactly are you out well west chicago attract these businesses that the a group is going to  make class or make pads for the development if they can't see how they're going to get into that property don't they need that road somehow right now it has a gate on it at least that's my understanding but don't they need a road to get in there to see what that property holds for them well st of all the county the evidence at trial was that the conti property already has a road they already have a road for ingress and egress to their property as far as taking someone's private driveway there needs to be a public purpose attached to it and the only arguments that were advanced here was one that there was some sort of economic development in the future that would be served by this and that wasn't presented and the evidence you're hearing and then the other argument was that well d we're going to make it a public road and everybody can use it and the city claims that what we can take the driveway because all the members of the public will be on it but that begs the ultimate question of whether the general public's unfettered right to use the driveway is necessary info in furtherance of any public purpose in the st place and is this the circuit court found here public travel on the driveway is not necessary because the driveway leads to nowhere as victor peter upon testified it's basically the front door of our farm it leads from north they have a new to our front door in under the city's argument anybody could come in and take anybody's private driveway that leads to my garage or my front door simply because they say well everybody can use it we can have people park on it we can have people drive on it we can have people walk on it we can have people walk through your living room after the driveway too because it's easier to get to the neighbor's property we don't have to take the streets and go around the block there has to be a public purpose the taking has to be necessary to further the public purpose and that wasn't articulated at the hearing in another put important point in furtherance of that is the standard of review in the lens with which this poor reviews the circuit court's decision the standard is manifest weight of the evidence in an order any bench trial is against the manifest weight of the evidence only if the opposite conclusion is clearly evident or stated another way if i'm hearing of the evidence no reasonable person would reach the court did that is a highly highly deferential standard and it's highly deferential because as this court has said over and over again and the supreme court has said over and over again the trial court is in a superior position to judge and observe the credibility of the witnesses what testifying and determined their credibility and that's what judge popejoy did here is not this court's function to hold a trial down the hall and look at the evidence and say well we think that maybe a different conclusion could have been reached it's only if no reasonable person could agree with the trial court's findings i may have didn't see that here it was highly probable that this taking was not necessary for a public purpose and a reviewing court will not overturn a truck court's finding merely because it does not agree with the lower court or because it might have reached a different conclusion and that's important because i repeatedly hear arguments in this case as i read the city's brief and i listen to mystics since arguments that are an attempt to essentially retry this case in re wavey evidence judge popejoy did that in his weighing of the conti property to manufacturing or like manufacturing and the need of the need of a road to access this light manufacturing a sufficient purpose i mean i know there's other ways into the  property but they aren't going to be access to the manufacturing from both east and west bound north they have news of clearly the road we're talking about is more desirable and more likely to foster manufacturing development why isn't the rezoning enough to show a plan for purposes of suggesting this is for public use because the rezoning is not linked to anything that would serve the public at large or the public in general i can have my property rezoned from residential to business and it may just benefit me as a private landowner it still makes me but clearly clearly if we have thirty seven dollars acres of light manufacturing jobs in sales tax in an increased property tax because of a higher use that does benefit the public in ways that the case law contemplates well i would respectfully disagree they generally benefits the public it may benefit mr conti's concrete crushing business which he wanted to hopper it on on the property it may benefit a road may benefit his property by getting his trucks in and out of there but but it did there's no economic plan and by the way at the trial the zoning wasn't wasn't used or argued or  part of the public purpose that they were advancing the the argument in the in the briefs is ben well this is being taken for a public purpose because we're going to let everybody use the road and  there's some sort of economic development afoot here and the evidence at trial just didn't add up to that in city of chicago versus i can hear a case that actually allowed the condemnation to go forward and was cited by polls judge popejoy sort of telling feature of south public use in the context of economic redevelopment is the existence of a while default public voted and thoughtful economic plan there wasn't any evidence at the trial in this case presented of that there was a single sheet of paper that was prepared in two thousand and six but nothing has been done with and the testimony of the city's own witness said this was a hole this was a hope that they maybe someday would have a business park but there were no traffic studies done with this road there were no there was no planned unit development there was nothing in  way of showing even a conceptual design or plan for a business park this was lip service and the evidence really pointing to the real reason for taking this property was because the city did make a mistake and the energy into a private agreement with county thinking that this road or his driveway to the beach or ponds front door was a public road and they promised conti to build a road and when in when mr government was asked why did you take the property said well we own this private contractual obligation if we don't fulfill it it could be problematic and there is not a constitutional basis for going in and taking private property and you know the court in swe purpose here it is inflated in in over exaggerated and again we're not really trying the case here but just look to this whole notion that while mr conti was grading the property and he was preparing for stormwater detention and that was in furtherance of a development well when he was asked at trial about the plans for the stormwater detention and he was asked about commitment to develop the property he said that the grading plans depiction of the building was not a commitment to develop any buildings he answered no to that question and he said that those buildings are merely there to show the amount of impervious soil to do the storm water and flood calculations once again mr gutman their own witness rejected the notion that there was any sort of plan here and that there was any sort of public purpose or economic development that would be furthered by taking the private driveway for the peter bones property and yes there was an ordinance in this case was remanded in order to determine whether the presumption created by the ordinance was overcome but as we cited in the read custard to susan once a party introduces evidence contrary to a presumption bubble bursts and the presumption vanishes and after the presumption vanishes with the court must do and what judge popejoy did in this case is evaluate the evidence from both parties during the evidence three phase as if the presumption never existed presumptions are never indulged in against established facts there were established facts here at trial and the bubble burst once mr gutman was cross examined and mr g admitted that there was no type of plan a concrete hypothetical or or even conceptual for economic development of this property in fact i would say the bubble more than burst it exploded there was simply an overwhelming amount of evidence in this case that supported that this was a sweetheart deal so similar to the deal that was reached in sweden and yes the facts are different in each case but the point of suite a is that the government cannot come in and take property because it wants to benefit a private party and that's what judge popejoy found here in the lens with which court looks at that finding is it is not a trial than all the lens with which this court looks at that finding is was there evidence to support it and did he believe it was highly probable that what that was the case in judge po choice decision in that regard is well reasoned interact and the only way that this court can overrule that decision is to determine that no reasonable person could could could could agree with that finding based on the evidence that was presented and so i would urge particular to read the transcript i would say that's a very good summary because your time is up so if you want to finish that you may do so and then on the evidence in this case that it was highly probable that there was not any necessary public purpose for this taking and we would ask this court to respect as all trier of fact decision true that the city just not need the planned public road and done to fight as referees wrote there was no evidence submitted by the defendants in support of that that it was highly probably true that the city doesn't can liberties in his recitation of the testimony our city administrator michael got mr goutman testified to many facts st that the city has legislative authority under the own  out as a public road and then the city and based on how it records believe that the road was in the public domain how do you think getting a sweetheart deal as defendants and judge popejoy might think where is the sweetheart may reflect or may refer to if if we look at all of the evidence that with this road even though it's going to cost some money that thirty seven dollars acres now becomes much more valuable because instead of one gravel crushing or gravel business that's going on there there might be six hundred and seventy eight different light manufacturing pads that could be sold by mr gotti so there there is a significant benefit to him even though he's going to have some upfront cash outlay wouldn't you say well it's certainly there's a benefit to the private developer but let's think of the benefit to the city anwesha karo it was the city  that required the construction of a public road to city standards a sixty six dollars foot wide roadway the city want to get to occur and put a burden on the developer to do so because the city recognizes that access interstate which became an aflac center to intersection with north avenue it was the city that was driving this the whole time it's the city who determined that the development of thirty seven acres commanded this kind in this type of a roadway certainly if the city could have easily said well you've got a roadway it can to use that but in fact the city said no we want you to use this roadway this public roadway for entrance and exit and i do have to say it the city did not offer at as i i think i asked before and i just want to make sure i was clear the city didn't offer any income projections or possible proposals for the property even if they were in rudimentary form none of that was offered at the at the hearing was it in terms of revenue projections there was not evidence of that but  evidence clearly at trial that there was an exhibition agreement transferred when this revenues and it's to the city it would have come in as residential development by aberrational the city and the developer entered into a contractual agreement that the property was going to be developed in conformance with the city's comprehensive plan it was going to be a major manufacturing development it was going to offer a business park which was going to bring in more money hundred percent not on why because in action or again you have the condemning authority which is the city condemning private property to transfer that title of that private property to another private property act when that act is a play the city has to have and understanding of the economic development to be derived from development of property there's no similar requirement on a city when you're going to build a public road so when i church says you should look to the determination of whether there is a good sound economic development plan that makes sense because if you're going to take private property from one owner and give the private property to another private property developer you want to make sure that there is some economic benefit that's going to be derived here what the city is doing is realizing long held belief that this property was in the public domain that it was going to serve as a public roadway to serve both the development of the area the residents the business owners the employees anyone coming into this area a free and unfettered use of this public ro that there is just absolutely no evidence that this was some sweetheart deal solely for kaante or that the city awash a cargo abused its discretion in determining that the road was necessary to serve the city in this area and and based on that i have fully believed that there are other trout where it did its issues it decision is clearly against the run of the strain of the evidence there was absolutely no evidence to submitted a trial that it was highly probably true that the city didn't need the roadway if review of petra by one paragraph twenty four dollars to twenty seven forth what the defendants presented at trial and basically what they said is this wreck we rode is a private drive serving our property ok that might be true they testified to the development that it count was making to its land that might be true as well but what you did if you look at the evidence emitted by the defendants there is not a single shred of evidence that would show the city abused it in determining to acquire this property for a private for a public road nothing in fact what you do have is the road appears on a comprehensive plan a comprehensive plan shows the development that's to occur and th signing of the property is going to be which shows what the development of the property is going to be that there's thirty seven dollars acres that are going to be under development for a business park thirty seven acres of development that could use this public this route as well as in the public domain so now we have something that developers craigs that have full access interchange with nor that any of this will drive development in the area i see my time is up but i do with the exit i want to thank the court for taking the time to hear the skewness again i would i would ask that in review of the information provided in the proofs that the court realized that the trial court did decision in due course we are going to now recess so we can prepare for our next argument everyone have a nice day and let's hope there is no snow coming