big case or a lot of issues it's very interesting well briefed by both parties i should add so we're going to remove any time restrictions and if you want to go on just feel free to go on we'll always make sure that you have five minutes for rebuttal and  if there's a natural to have you want to stop just go ahead and stop it if we get tired of listening to you foolish i'll start living lunch at noon and i'm hungry but you know the other thing that should be noted for the record is that killing it is not able to be with us here today but she is thoroughly engaged in the in the battle so to speak and will listen to the oral tape of the orals and will be engaged in the final product that we up sending your way so let's not proceed from that basis chocolate factory to its immediate south to its immediate east is a thirty four story residential apartment tower when was that was it in place as of the time that this holds the string of events began yes your honor ok there's a bomber chocolate factory which is been there since i don't know the thirty's or earlier and the thirty four story residential apartment building had been completed i'm going to say around the turn of the millennium the turn of the century something like that but it had been in place yes in light of the fact that the facts here are very detail i mean if if he only a case through the trial court and bring in the appellate court to sort of like raising a child you were dealing with a teenager here we are indeed give us give us a brief outline from the goes back to the tribune company's desire to adopt planned manufacturing district zoning on an area surrounding the building the printing building was called the freedom or center correct if you may recall a plan held that there could be a proper zoning challenge from any increase in the value of property caused by residential properties coming into industrial areas the city took the position you and have that you can't be harmed by an increase in value if the court said no because you have to pay higher taxes and it might for shit you out in any of it the city through mayor daley then adopted is what's called plan manufacturing district zoning  zoning category and the fact is that there has not yet been an instance in which plan manufacture district zoning has been changed from industrial to residential there's nothing in new orleans that forbids it but that's a simple fact you know the testimony that's right i get yes you're right i think that's undisputed everybody agrees with that the tribune company decided that they want to plan manufacturing district to cover the freedom center  proposed development or a proposed district was created it went to a public hearing and it would have extended to the blong a chocolate factory which is approximately two or three blocks to the south all right so it would go south across grand want to be stuck with plan manufactured district zoning because we're afraid that when the case station development is completed when the residences are completed they're not going to like the smell of chocolate so people don't and we're concerned that  some point in time we will be forced to leave and when we leave we want to be able to sell our property for the high side as useful when was that in place when you just described took place in two thousand roughly two thousand years after the  and said you know we object to this that's when well i won't use of profanity your honor but a lot of things happened things with the family thank you and at that point there was intense between the city and former chocolate essentially i think i think this is a fair inference from the evidence politically the plan then a federal district was not going to fly with the oppositional blom or chocolate and the city and i think this is reflected this because one would think that the boundary of it could end that grand avenue but in fact it went across graham and went up to kinsey which is interesting in light of the fact that right across the street from kinsey you've now got the big tower there and you've got k two over there so the question i asked was was the southern boundary from the beginning given that the recommendation stage in november of two thousand when it was recommended and when it was approved a few months later january tenth or one will always go all the way up to kinsey it always went all the way to kenzie the the explanation for it in and you at the edge of my memory your honor so so there bear with me i believe the explanation i believe the question was asked nevertheless from a political perspective it appeared that unless they could get the support of bomber chocolate they were not going to go through with the p m t zoning and that then gave rise to the series of negotiations between former chocolate and the city which eventually resulted in a deal by which the dollar chocolate would receive round figure twenty million dollars in ticket subsidies because as part of this  disagree with you there's a statement from a member of the planning department that explicitly tied the p n d and the chief planned together the statement ok so when will a statement but we're with it made subject here and then approval by the city council on one ten zero one it was determined that this was necessary to preserve this as a conservation area right conservation area that's the that's the  river west if plan ok how do you square the f n council with the fact that the city council in june of zero two when they authorized this eminent domain action against your client did  so according to the record saying that it was necessary to improve quote commercially a commercially blighted area how do we know there are things you can't i don't think you can there's no evidence to suggest that it was blighted the city council never made a determination that it was i disagree because while eminent domain is authorised in a conservation area under the act the taking of private property to give it to a private individual where does not s i would say you are correct i do not believe it is good law after sweden gutnick was argued by the agency in that case and it was cited by justice freeman in dissent as saying that it was ok to do what they were doing ted in the agreement and that the agreement was first documented if you will in the letters from the planning commissioner which indicated we will acquire the i can of property and to others in return for your public support for the p m t ordinance and that's what happened and they drafter objection right they dropped their rejection at the same public hearing that mr eichner asserted his objection to the taking as well as one of the other property owners  yet been conveyed to blom or chocolate pending just position of this case and they don't have to actually make a decision as to whether to take it until after the property is put to them but the principle remains the same specifically brackets objection that is agree on a price or what it eventually went to eminent domain and i believe that was resolved i am not one hundred percent certain that it is your position that the conservation district was given to get the land for bloomer ah are you suggesting the primary purpose or sole purpose is judge no effect will you tell me what your position not look i would agree that there is not evidence of primary purpose or sole purpose on like some of the cases that we cited in our brief where that was the primary purpose driving that the rezoning but i don't think that's the test i think as long as there was a proximate cause between the aspect of the two aspects of the project then the depreciation in value caused by one aspect i eat the pine manufacturing district causes a depreciation in value that's barred by the statute by the illinois project influence rule so yeah i would agree with you that there was not a sole purpose or primary something under nine hundred thousand now there was a statute there was an offer made prior to the jurisdictional eminent domain offer so is it a necessary thing in these sorts of cases the jurisdictional offer is the private attempt to acquire is not however the testimony was that the offer was made by bombers because quote that's the way the city wanted it to go ok so yeah that's what was going on  the the deal was reached the lawyer wrote removed its objection the plan manufacturing district zoning was adopted subsequently the city council move forward on the  pendency of all this i mean this case has taken a long time your honor i don't you know i was wondering before i got up here you know what if they asked me how long it's taken and i hate it's taken a long time i don't think anybody is particularly to blame in that regard the property is vacant we're not complaining about the late winter still the same now as it was before as somebody said god is not making any more of it it it that it hasn't been converted into this this new use which is going to be what landscaping and parking employee parking is what it shows on the plan no it is not it's still but there's again this is just a half acre of much the four and a half acres that there are some roughly four and a half acre campus that as i put in the brief there was a lot of of consolidation that went into the whole blama project include vacating streets etc etc this property is on the extreme north end of what will be the bomber industrial campus and the only use that's designated is employee parking now the size of it twenty five thousand some square feet you've made mention of the tower that's across the street on jefferson on the south side of gran is the land owned by or something that would accommodate a building like that on the short answer is yes to a lot of some a longer answer is i'm not sure if that's actually in the record but certainly one of one of the things that i asked my planner to do was to tell me if the footprint for that building would fit on the i can or site and the answer is yes it was like thirty stories thirty four ok residential tower all right so moving forward then there's a complaint to condemn in  eminent domain is according to the case law sui generous and the exact of click ability of the code of civil procedure is a little unclear under the case law a traverse is a responsive pleading filed by a defendant which puts to the test the authority and necessity of the taking by the condemning body the case law is pretty clear that you don't have to have much to a traverse there's actually things run the facts are disputed with respect to the to the traverse we didn't have to have a hearing you can't have an evidentiary hearing on a traverse we don't really need to hear because everybody knows why it's being reconsider she deny it there was a motion to certify for you know like a tory appeal she granted it she defined the issue which i would accept as the issue on this on this point and this court said no discord said no so we go you go back so we can have your trial we go back and that takes us to about two thousand and eight i want to say it took us araya well to get things together various  all way up until thirteen when you have the trial correct with what's happened i know you're not blaming either side for it would give us just some sense of what was going to pulling together evidence looking at comparable sales getting witnesses expert witnesses lined up prepared deposed took a long time with this is an expert witness really this is an issue in this case there's no question about that in addition there was another long exten the city had to respond to that they filed a bunch of stuff ok the basis for it how would you articulate and tell us what the court did why you disagree i would take elated as the fact that the p m t zoning is barred by the project influence rule project inference rule basically says it's a commonsense approach if the project causes an impact on value you can consider that impact on value when valuing property for eminent domain purposes you look at it with blinders on ignoring the project for wh exchange national bank cases here that's the one that the california courts have used has cited as a good example of the project influence rule can you explain why you believe that that really applies here project and here i called the city to take in your likeness property is part of a larger effort to maintain and encourage manufacturing within the city through the river west to explain a project in p m t number five that's not me that's the city so that kind of defines everything as one linked set of facts that's what i used to say that it's all together and that's not me that's the city so because of  statutory exception in seven thirty five miles yes thirty sliced ten days five days sixty says such appreciation or depreciation shall not be excluded when property is condemned for a separate project conceived independently of what i'm saying is that the statutory exception defines the scope of the rule in other words if you have a separate project conceived independently the project influence rule doesn't apply that the one day out and then a separate taking for something different and this we're talking about just one and they are really talking about one entire set of facts so that the language that you are referring to from the statute that would  slightly ahead of that in the statute your honor it states quote in the condemnation of property for a public improvement there should be excluded from the fair cash market value of the property any appreciation in value approximately purposes are so for that reason just the time and that's why i think the project influence rule applies and that's what we argued judge no back said no and i think sure in that regard this is they have separate this probably sounds simplistic to a sophisticated practitioner but is that separate from the denial of your travers yes ok so that gets into what kind of evidence is going to be heard at the  trial involving the condemnation right as far as i'm concerned if you rule on issue one for me we're done ok and and had justice know that rule for me back in two thousand and whatever it was seven or eight we should have been done at that point in time broken down in that way we could analyze it first as to whether nafta taking was appropriate under the cast intuition of the relevant case law swayed a cetera and if we decided to go against you on that then we visit the separate issue of whether a natural trial itself was fair and if there's enough of a basis to remember for neutrals it fair to say that's really for the circuit they're very fair to say the second aspect and the reverse aspect of the project influence rule and the plan then a factoring district zoning is leading up to the adoption of the p m t zoning to show that it indeed was an ad hoc sony decision to serve the interests of bomber chocolate company in the tribune company rather than some kind of wasn't proper if this is not a collateral attack on down zoning this is an attempt to tell the jury hey putting encounters put this in context in one of the charges to the jury is to determine value by virtue of the highest and best use of the property the background of this square with this city's decision shortly before trial that it was going to get into evidence of what the value would be if this zoning was changed rob i'm trying to figure that one out i'm not i'm not dart and givens mr givens and they both had a opinions of value of approximately a million five a million six with the highest and best use of simply industrial saying that there is no reasonable probability of rezoning under any circumstance race for travis said well no we're going to get into it but we're to do it by grabbing one of your guys the grammar rules right they actually grabbed too much of my guys although i had disavowed them all we head abandoned if you will them as witnesses a lot of this had to do with the availability of the missing witness instruction ok and so press council can explain the tactics of the city because i formally abandoned the use and sort of a no which opened the door for them to be able to well he didn't open the door or the door was always open for them to designate them that's meal versus when they gotta be prevented the adverse inference from the five hundred one from big deal was actually it was actually after judge brennan ruled on the missing witness instruction that all of this happened ok and because the missing witness instruction shouldn't be given in that instance for the reasons that i cited in my brief so she was correct in that the consequence of that was this tactical interplay of who was going to call home which we've asserted as error for the reasons i said comes in and on direct examination gives  value that winds up being really really close to what the jury ultimately comes up with right two percent yes like two point five five jury comes back or two point five correct and you would argue that they were there for heavily influenced by the fact that reduces opinion two point five is a good one and it just so happened that they get in the fact that there was the one who retired i think the facts speak for themselves in that regard judge but what's important is that a couple of other things are important about mr rivers number one he never should have been allowed to testify for the reasons that we say but number two when we win the city so we don't agree with you on that right but what should have happened i'm cross examining what should have happened on cross examination is defendant should have been allowed to say to mr  moussaoui you put force under rick examination an opinion of two million five hundred fifty thousand dollars under a quote extraordinary assumption yes well you mean by extraordinary and he would explain it now do you have an opinion of value without the extraordinary assumption yes i do and your position is that that would forgetting about whether or not it's within or outside right of the scope of examination that it would impeach his testimony if the value was only x because he doesn't believe that they had assumption is correct correct his opinion of value which the jury heard is not his opinion of value it's his opinion of value in an artificially constrained universe of no reasonable probability of  that because i asked him to do it because to witness a hypothetical question right which is what it was done even though he disagreed with the basis for the hype of exactly when i instructed mr marusya i said look mr bruce give me two opinions give me your real opinion and then if the judge says we can't go into reasonable probability of rezoning i want to back up i want to know what your backup opinion is fine he did the sitting here's the back up but not his full story ok what about the  sir is what particular case would you rely on for the proposition that you should have been able to i think in the most isn't a god and i think there's a couple of other sided it's within the confines of this type of litigation more than there you go but in this case in the city quoted cited i think is the murder realty case where they were not allowed to read the cross examine i was not allowed to bring up an opinion on a different piece of property why would they not i can understand that but this is the subject property i think you want to be able to get into that with the expert witness so you would suggest that because it is the subject property that it's the furthest thing from harmless air yes absolutely and you would pick that up by its pointing out the coincidence that the jury came back with the almost the exact number of them the person you retain had come up with on the low a striking coincidence are from bringing out a high striking coincidence your his his opinion on the high end was one three six really not reasonably probable that it would stay in place if you had objectives we adopted zoning pursuant to careful planning principles which is what the city's planning expert tried to testify to that's right and tried to say right then the jury might come to the conclusion that well there's no reasonable probability it's ever going to be is ever going to be opposed or ever going to be changed here the history is different here it's an ad hoc response hoc deal to favor a preferred developer and i think the jury was entitle to use its common sense to say ok i understand what's going on here if indeed we had a didn't you're kind of forgetting the whole reason the city went into this i mean and you can we can say is there the tribune whatever because it was good for the city the city had many other p m t other tiffs i mean the whole idea was the city had a big plan to keep manufacturing in the city in certain areas residential certain areas and no p m t has other ever been there as a surprise that all these things come together and it seems that what you're suggesting is the jury should have heard from the city at the same time that it heard from meet the counter argument and then the jury would decide but that's not an issue for the jury that this your for the jury the issue of the value of the property the fact is if the city h absolutely they were instructed on it and they were instructed in this case so and again judge it's not a question of legitimacy it's not a question of a collateral attack on the constitutionality of the zoning it goes to  on the picture and he says this the only case where we have a domain lawyers get to you know get popular things because it really knows about this everybody knows about the kilo case swedish was one of the triggers to the  taking from national city environmental to give it to the racetrack so that the racetrack could get hurt street level parking us so that it could qualify for nascar races that's what it was all about the governmental entity the thing that seems to have animated the supreme court's decision that it was funny how it got there but the thing that seems to have animated the supreme court's decision in that case was that the governmental entity was looking for money i mean they were brokering the deal right  think the court went to great lengths to say that this is you know this right different still exists that this is factually based and in this case that the entity was acting as a broker looking for money but advertising but i disagree with that your hon in madison and st clair counties a very laudable public goal i will admit just as stimulating economic development in the city of chicago is a very laudable goal now in the swedish case they were looking for development they were looking for people that would bring money to madison st clair counties and that they said that they were willing to use their eminent domain powers which by statute they have to assist those efforts but that purpose does not equal public use and that is a debate that goes all the way back to burning versus parker in the united states supreme court and the illinois supreme court came to a different conclusion justice freiman in dissent have stricter rules than the federal constitution requires right so your position would be that the takings clause in illinois constitutional science is different from their the us and therefore when that obliged to  follow correct and that's what carroll said just to see even said look you know states are free to make their own and that's why sweet is still very good law takings must or the power of eminent domain must be exercised with restraint not with abandon the public purpose is like public use but you can't conflate the two if it's still very good line and that's saying that it isn't but let's just argue it out here if it is still a very good law can you cite to us any cases that have used it favorably as precedent the only one that would come close is the and i'm going to pronounce this in correctly they all know how regina case which coincidentally also came out from the fifth district it was bloomers bloomers this it seems that lead is do something good for the city in here is private developers using for private use judge respectfully i can agree with you on that i  bought my chocolate companies a totally for profit private entity they are the ones that are the primary beneficiary of this take a guy twenty million dollars and a piece of land that they offered nine hundred that the jury believed it two point five they got a for a buck right correct so much respect for your honor i disagree it is an undeniable aspect of the case and the supreme court did not look kindly on it but i don't believe that's the shouldering of the case the whole thing is that you cannot take is definitely public that this is a bridge and takes money this is helping residential developments on the other side this is helping more manufacture stay in the city this is going to build the city center for commercial use and that is know you're if you're saying public use and public in the public sector use this parking lot your honor i think you look to the friends of the earth friends or your friends or the park case the soldier field case because that's what justice freeman said in that case he said if you can spend public money to support the passkey family he didn't say this but it's a we all know what was going on odd then then you can do anything in the name of public purpose and because of that swedish requirement of public use must be a dead letter where it does the family in the where it appeared to read me the words where it says that specific so as you this court to explicitly overrule the public impediment requirement advanced in southwestern illinois development authority so there is where the public purpose public use distinction becomes open it's not a  is how much public use is enough and that's a very interesting question you played the justices in oregon in the killer case you don't have to answer it here because the simple fact is there is no public use when you give the property to be on the chocolate because it's an employee parking right and there are create some sort of landscaping buffer right you know there's nothing in the redevelopment agreement that binds it to being employed parking or anything else it's becomes a better chocolate's feast simple ownership to use as they like that is not respectfully a public use and whatever the boundaries of public use may be we're way beyond the pale and i just i can read reiterate the only other case that i'm aware of that has to has addressed that issue is the ninety nine cents only store out of lancaster california which was cited in our brief and that was just rejected and it's rejected because it's common sense because if you can't use eminent domain in the name of economic development preventing future blight is nothing more than that it's an economic development by another name so that if you allow good next to be an exception to would swallow the sweeter rule completely is there a case in illinois that says that hilo is that by being authority now ok now that would potentially be this that would be this ok let's get  record that boy it sure looks like that's what the swedish case said that's what you're saying that's that's how i read suite it now how much possessory use you know museums in the park have to be open to the public for what is it fifteen if i take property from you just a sign then because of a proper public projects say a highway and justice live and you've got a piece of property the justice hymen wants i require justice livens piece of property and i give it to justice hein and that's called substitute condom substitute condemnation and that's what happened in midland smelting and the court in midland smelting said well this isn't like sweet at all because this is substitute condemnation and sweeter wasn't substitute condemnation so it's just it's apples and oranges you can't use middle and smelting to you know in any way justify a a a a a a retrenching from from sweden in addition that the statement as the city argues that takings to eliminate blight pass constitutional muster which is what the court said in the middle it's nothing i completely agree but this isn't right what is interesting in middle and smelting is that you focus on the motives excuse me is the primary intended and you know everything goes down to this this is all done for that that's where we go this we did so it was all down to what the racetrack what that's not here that's there the dog was a racing here the dog what the city wanted to do this is only to tell it's a mix purpose and you're trying to see the need to say well no it's only private private private to private you know that then you're ignoring everything and the primary intended beneficiary of the taking here islama chocolate now are your incidental public benefits yes no question about it that's true in every economic development taking and there are economic development taking public purpose is not sufficient it's only sufficient if you're spending money not if you're taking somebody's private property and somebody asked me once what quit right is that a distinction right is there a different test for for public purpose and public use from the expenditure of public funds versus taking a private property and i believe the answer is because private property is different and this is one of those protections that we have in our system for private property all right let's now give me your best five minutes shall we say and the trial issues the testimony that was not allowed that you think should have been allowed and the limitation the other issues that you bring up regarding what happened a trap separate from whether or not it was an appropriate taking under the constitution because i think we've already discussed most of the judge clearly the project influence rule we should not have tried this case under this restrictive p m t zoning which was part of the of the of the overall project it's almost a scenic one on you've got to understand in order to determine what's the reasonable probability of rezoning and thus the value you got to understand the nature and context in which the restricted zone was adopted so they were allowed to hear the figure but if this were a personal injury case they weren't allowed to hear the testimony about the nature the extent of the duration of the damages and you know how would have impacted on the person's life i think that's correct but i've never tried a piano case judge so i've never done  got the jury who certainly appears to be adopting the the opinion of an expert witness who gives a still to back up opinion but we're not entitle to explore his real pinion and we've also got to what i consider to be the reversible error of him saying that he had been hired by the stryker you have let's talk about that for moment was was there the subject of emotion and limit it to prevent them from bringing that up yes and what was the court's basis in  the court strike the testimony of the court did not strike the test in a few stricken actually nic let me back up on that judge because this has been a while and i have to remember exactly what i said if i remember correctly  the final point i would make is that the last refuge in every eminent domain case is just trust the verdict as long as it's within the range of the evidence go higher than the highest no lower than the lowest that it's going to be ok i think that general rule does not apply here because of what is a clear mistaken approach by the jury with respect to the values and i've laid out here for all these reasons that we don't think this case ever should have been allowed to proceed  and for those reasons we would ask you to reverse the judgment of the circuit court and dismiss the case with prejudice if you don't agree with that we ask you to reverse the judgment of the circuit court and remand for a new trial ok thank you very much you need a break in between or anything counsel you're going to go the benefits by the creation of this shift in this p m t allowing this manufacturers who remain there and have a mixed use sort of environment the public benefits from that i don't think anybody disagrees with you but can you  public use as opposed to public benefit and that same thing you say it's required but can you articulate any public by the general public as of this property you know your honor but i would say that there are public public benefits beyond the are you suggesting then that the spite of the language of the constitution itself that the case law in this limited regard that interprets the constitution suggests that it can be an either or proposition either is it the city's position here then the cases that have interpreted the constitution on public use have suggested that it is an either or proposition of the public benefit or public use respectfully i would not define it that way because i believe that the case law before so i had to find public use in terms of public benefit and so it was not an either or it was the public use and then some public benefit it was broader than use by the public that was  definition if you look at it for example in hilo the us supreme court actually went through a very detailed this discussion of the development of the meaning of that term public use and said that state courts and federal courts in the early going the nation center in particular had limited public use to access to the public as that as the definition but i recognize that that was really not the right distinction to draw and that as a practical matter it was almost impossible of soon put into place and that over time the definition of public use had become broader supreme court case law was also consistent with that approach to stroke lead to the definition of public use you say historically mean priests one that's correct and i believe it has the difficulty of smythe it only rises with the fact that this why the court side that really gave your case and that particular that's the case then why wasn't this jury given all of the evidence to determine what the actual motive was that your colleague would suggest they ought to be able to get all of the intrigue for lack of a better word in to be considered it's still a change a fact that the determination of the purpose is a question of law for the court and not for the jury i mean that a clear case of all the case all says that but that's the question fourth quarter not the jury but wouldn't the question of motive in the evidence related to motive also animate the issue of the value of the property when you're talking about rezoning you know changing from one to another no respect yet particularly in this case because all the evidence here shows that the zoning was already proposed and developed from the for the opposition was ever in the picture that the admission didn't motivate the zoning you're absolutely correct about that but there's something a little bit different here i think and that is that the principal objector to this overall tiffin this pm he i climb or this was a significant objector whose voice was only silence after they received certain concessions that may be true your honor but  in the city did that they came up with the plan but we're talking about whether or not have the taking within it there was something that was you know part of the grease that got this thing done you know plumbers you get this other land and you get in the city put in evidence of what the value would be if there was a probability of some a zoning change so if if the jury hears that how can you just give them like this much in atlanta understand the context in which that was acquisition of the property to bloggers and that that's what that's what they were there to try they were there to try whether or not or if they were there to try how much time the owner was entitled to for this caking that the government  power so if that's if that's what they're there to try why were they prevented from hearing the evidence of how climbers was able to get something for a dollar when they had offered nine hundred thousand and four when your own experts said it was worth two and a half million dollars seems like seems like they were you know just pigeonholed you only get this much information you're not allowed to hear the rest or the relevance of that the circuit court in terms of the relevance of that information was at best minimal to the issue of reasonable probability result and given everything else that came in and that the prejudice of the city from the jury potentially reacting to the idea that bombers being given property being taken from ikea and given to a different to bromberg but that would be potentially prejudicial to that through the city and obviously that could point that reason probably rezoning would come in and that was and that it was an issue for the jury so it was coming in the only part of it that wasn't coming in was the one particular piece looking that potentially prejudicial evidence and the purpose of the zoning of the acquisition itself to the zoning and the zoning had already been proposed it was already out there blowers and i know were proposed to be and that's only from the start so the there was only minimal relevance to that evidence and there was a high potential predators and for that reason that it was put in the trial course discretion to zoning the reason probably of resigning and the city my understanding is that the city called him just for completeness sake because they one of the jury to hear all of the opinions there was already an opinion coming in on the other side at a higher value of five five point five or some opinion i'm not going to call him he didn't have to do it he could have told him if he wanted to get in that other testimony and that opinion and he have to really be chosen out in order to accept that i know what you're saying in order to accept that we would have to al rather hypertechnical view number one of what the scope of the direct examination was and number two we would have to accept a representation there feet opinion testimony that your colleague wanted to get out was not impeaching of the opinion testimony that you put mr morris on the witness stand for respectfully i don't believe in quite a hyper technical definition at all because there was one particular opinion that was going to be asked by the city this is a separate and different opinion it's not the same opinion it's a different set on he didn't agree with that wasn't it wasn't just his opinion that it was an extraordinary assumption it was his opinion there the contrary was true he was of legal opinion they had the zoning would likely be changed it was the apis if he said if i assume the hypothetical it's worth two point five but i don't think the hypothetical is true i think the contrary is true and it would be worth three point six or more and he was free to testify to that other opinion if you can call them direct by i don't think you can put your opponent in a box like they have him and expect it to be called fair respectfully our opponent put himself in that box that is his choice when he was an art he was an architect of part of it you know which allows you to call this person but when you finish no doubt but even after he became aware of what was going to happen he chose to stand by the decision at that point became the circuit courts discretionary decision whether to limit the scope of cross examination based on the record that's an issue of discretion the circuit court decided that that would be beyond the scope of this direct and discretion opinions whether it's different opinions that are not the same opinion and that big discussion or you can imagine that you could ever find this a case that says they have witnessed gives an opinion that direct examination that he doesn't believe is at all likely and  was that with this i didn't call him why does it have to be done later when he calls them on direct examination when what is being offered is clearly impeaching of his opinion that you put on and direct examination because especially was outside the scope of direct examination which made it his indiscretion the circuit court i you know how it could be called outside the scope when it's impeaching i'd like to see a case and they have to because they have to make a lick of sense to me with all due respect one of the other of the other issues that your colleague raised as to the fairness of the trial what about the issue of violation of the order  refrain from soliciting from the witness that he was initially retained by mr pike or respect leon or to me again it's clear and from the circuit court itself it's clear that that the city was and did not soli that's out you can ask everything else you want about the source of this opinion who we met with who developed it all the things we said to see them pay for it all it comes in that's the one thing you can ask so the city did not before the witness took the stand and this is all the records the city's lawyers went out with subject that he's rearranging a little bit so she said sidebar i'd like to talk to him and say mr aris please listen to the question answer only the questions are being specifically targeted to avoid filing my roomies this on direct examination is on direct by the city so then the city consumes examinations as all the things that is allowed to ask about the source of his of his opinion then on cross examination there are questions specifically asked about his c v about his resume and here's a list of people who have employed you in the past goes through that that believe it's right or so i simply don't stand for the proposition that mr eichner suggests which is that property can only be taken to give to a private owner if it's blighted and if it will be ultimately open to the public so i didn't say that i think the smelting says that as well so you would you would in order to get them out let me ask a specific question about the middle in case and i think i'll be done with you how do you read the following quote from midland and how would you analyze its application to this particular case this is just this case should therefore knapp be viewed in the context of a typical taking of private property by the government in order to give their property to another private enterprise to do so would be to view this case to merely and to ignore its unique nature well ok i believe there are several different issues going on in that case one of them was the purpose that was put for the public purpose put forth in that case of the substitute column combinations that made it unique and different from spice that was one ground for distinguishing it from sw because the factual circumstances of that substitute kind of basic case was that there was it had already been decided if it was an appropriate taking before and there was just one aspect of it that popped up later for the idea that all these cases have to be decided on a case by case basis and for that reason i think that's one reason the courts are not drawing a bright line for them as they're going to find different facts in all these different cases that doesn't mean that they're not political just because they had different facts and again one point thing is that regardless of the whether swayed exceeded the boundaries of constitutional authority principles and its authority by transferring the property to a private party for a profit when the property is not put to a it wasn't the legal definition of public use it was that only to reach a bright line because clearly there's no public benefit and it's why did did specifically say that it's would be justified to take slums and blight for the purpose of clearance and redevelopment regardless of the subsequent use of the property right absolutely but it didn't find any such purpose that in that particular fic yes that's exactly the court said that but because that's not before this court those cases really have nothing to say and foremost it is the same situation that mr permissible public purpose doesn't mean that's the only one the court certainly never goes anywhere near that is why it into there is here there are multiple public benefits and purposes to this taking beyond just the profit of the private company which is but the problem that the of was it that it was really just a profit but that the public purpose that you're talking about is not to get rid of blight or potential blight it's to maintain manufacturing surrounded by the residential but i believe that mix use preventing flights is one of the purposes and you'll see that in treating to prevent project area the city department plenty actually did have a study done that found three bryden factors under the act present which qualified the a conservation area which means that there is a risk of future blight under the statute and so therefore the by taking and you're seen in the city or in the ordinance the city council said that this will allow us to fund projects to redevelop under certainly under the test back and allowance to protection conservation areas from further blood and in light of the fact that we were dealing with a teenager here you know in terms of the litigation history we have the benefit of  retrospective vision to look back at what this plan was and what ultimately occurred here and now this neighborhood does have two additional towers of very high end residential rental apartment buildings right not within the p m t now with no buffer area that nature manufactures are not going to have any rowing incursion from residential into your area and residential you know you're going to have a certain vote for around you and in particular the acquisition of this particular property was specific for that reason brothers are saying look we don't want to be included here space as part of this and then put a buffer here and then promise that really helped us in sales or area and bring more of our traffic our trucks and our employees off the streets to be sure a lot of complaints from the neighbors about traffic and noise and so all of this was really for everyone to make this whole area work forever because i'm or benefit in staying was substantially enhanced would you agree by the fact that they got twenty million dollars in tips money and they get this piece of land which they had offered almost nine hundred thousand dollars for for an hour i doubt that's true but i don't think that the fact that a private party also benefits from something that serves the public in any way affects the constitutionality unless that's the primary beneficiary which is what you'll see an says you know the effect of a public improvement on the value of property when you have the taking can't be considered that little different rule that says that when there's evidence of down zoning to change the value that probably works in the city gets cheaper you take a city that either but other two different rules redevelopment project pursuit of a tiff act here that statutorily allowed the city to be authorized to take this property and as part of that there was a redevelopment agreement given to blah murs to allow it to redevelop this area and as part of that redevelopment project think you are just very briefly i listen with with quite a curiosity to council's explanation of the disk of the course of the examination with respect to mr eichner in the previous employment of mr i would refer your honour's to the record citations on page forty four of our brief i would certainly and i have argued that this didn't just get innocently blurted out this was an attempt by the city through innuendo to suggest that in fact mr eisner had been the previous employer of mr morris they got more than they asked for they tried to draw a very fine there's a long tradition of case law that is that it's either or and and i think that you need to look at that very carefully because the tradition of either or comes primarily from federal cases berman versus parker hawaii  chicago before the right of eminent domain may be exercised the law beyond a doubt requires that the use for which the land is taken shall be public as distinguished from a private use and then the court goes on in the same decision and  quotes the gaylord case quote the public must just must be to some extent entitle to use or enjoy the property not as a mere favor or by commission of the owner but by right so the  distinction has been strong in illinois in the state cases saying that while for public purpose you are required i'm sorry for the expenditure of money you are required to show public purpose for the taking of private land you required to show something more and that is private use for the reasons we stated there are no other questions your honor we respectfully request you to reverse and either dismiss this case with with prejudice or a new truck ok i like to think both