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City of Peoria v. Keehner

OPINION FILED JUNE 3, 1983.

THE CITY OF PEORIA, PLAINTIFF-APPELLEE,

v.

CLARENCE W. KEEHNER ET AL., DEFENDANTS-APPELLANTS — (THE TOWNSHIP OF MEDINA ET AL., INTERVENING APPELLANTS). — THE CITY OF PEORIA, PLAINTIFF-APPELLEE,

v.

COMMERCIAL NATIONAL BANK OF PEORIA, TRUSTEE, ET AL., DEFENDANTS — (THE TOWNSHIP OF MEDINA ET AL., INTERVENING APPELLANTS).



Appeal from the Circuit Court of Peoria County; the Hon. Calvin R. Stone, Judge, presiding.

PRESIDING JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

This appeal arises out of condemnation proceedings filed by the city of Peoria for the purpose of acquiring 495 acres of land outside the boundaries of the city for park and recreation purposes.

In 1977 the city of Peoria and the Pleasure Driveway and Park District of Peoria entered into an intergovernmental cooperation agreement whereby the city agreed to use its powers of condemnation to acquire certain land north and east of the city and to convey the land to the Peoria Park District for development and operation as an extension of Robinson Park. Although Robinson Park was totally within the boundaries of both the city and the park district, the 495-acre tract to be condemned was all outside the boundaries of both the city and the park district and was neither contiguous nor adjacent to the city borders. The property in question is located within Medina Township and Chillicothe Township Park District, and is partly bluff land, partly productive farm land.

After the condemnation action was filed Medina Township and Chillicothe Township Park District were allowed to intervene. The landowners and the intervenors filed motions to dismiss and traverses. Following a 10-day evidentiary hearing, the trial court ruled that the city had the authority to bring these condemnation actions, and motions to dismiss were denied. Subsequently a jury trial was held to fix compensation for the land to be taken. The jury awarded $334,318.80 to the Keehners for their land. No appeal is taken from the amount of compensation. Instead, the owners and the intervenors have perfected this appeal from those orders of the trial court denying the motions to dismiss the petitions for condemnation.

Although the appellants advance a number of arguments in support of their contention that these condemnation actions should have been dismissed, we believe the determinative issue is whether the city has authority to condemn land outside its boundaries under either its general home-rule powers or under section 11-95-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11-95-1), or both, in the absence of a referendum.

In its amended petition for condemnation the city alleged, inter alia, that it is a home rule unit pursuant to article VII, section 6(a), of the Illinois Constitution of 1970 and may exercise any power and perform any function pertaining to its government and affairs; that this petition is brought pursuant to the authority granted under section 11-95-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 11-95-1), and the city's general home rule powers; that section 11-95-1 authorizes the city to acquire and develop land within or beyond its corporate boundaries for playgrounds and recreational centers; and that the land to be condemned is necessary for a recreational center which the city seeks to construct for the residents of the city and surrounding area.

The general power of a municipality to condemn property contained in section 11-61-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11-61-1) provides as follows:

"The corporate authorities of each municipality may exercise the right of eminent domain by condemnation proceedings in conformity with the provisions of the constitution and statutes of the State of Illinois for the acquirement of property useful, advantageous or desirable for municipal purposes or public welfare including property in unincorporated areas outside of but adjacent and contiguous to the municipality where required for street or highway purposes by the municipality."

Obviously, this section does not specifically authorize municipalities to condemn lands beyond their borders for park or playground purposes. The city contends that the broad grant of power under section 11-61-1, when considered together with the authorization for extraterritorial condemnation for playground and recreation center purposes contained in section 11-95-1 of the Illinois Municipal Code, is sufficient to permit a home-rule municipality to engage in extraterritorial condemnation for the desired purpose without a referendum.

• 1 Section 11-95-1 of the Illinois Municipal Code provides in part as follows:

"The corporate authorities of every municipality with a population of less than 500,000 may dedicate and set apart for use as playgrounds, or recreation centers, any land or buildings which are owned or leased by the municipality and are not dedicated or devoted to another and inconsistent public use. Such a municipality, in such manner as provided by law for the acquisition of land or buildings for public purposes by the municipality, may acquire or lease land or buildings, or both, within or beyond the corporate limits of the municipality, for playgrounds and recreation centers. * * * But no land or buildings shall be so acquired or leased for a playground or recreation center nor shall any appropriation be made for the acquisition * * * of a playground or recreation center unless the question of such acquisition or appropriation has been * * * submitted * * * to the voters at an election in the municipality * * * and a majority of the votes cast on the proposition were or are in favor of that action." (Ill. Rev. Stat. 1981, ch. 24, par. 11-95-1.)

This statute permits extraterritorial acquisition of land for playground and recreation center purposes by municipalities but only after referendum approval by the voters of the municipality. No referendum was held in the case at bar.

The city argues that a home rule unit need not hold a referendum prior to exercising a function pertaining to its government and affairs and that authorization by ordinance adopted by the city council here was sufficient.

The grant of powers to home rule units in section 6(a) of article VII of the 1970 Illinois Constitution states that "a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt."

However, for obvious reasons, the requirement that the home rule powers must pertain to the government and affairs of the municipality was intended to restrict home rule powers to local subjects, not those of State or regional concern. (See Baum, A Tentative Survey of Illinois Home Rule (Part I): Powers and Limitations, 1972 U. Ill. L.F. 137, 153.) And the language of the constitutional provision has been held "not to confer extraterritorial sovereign or governmental powers directly on home-rule units," but rather "that whatever extraterritorial governmental powers ...


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