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02/23/87 the Town of Libertyville, v. Bank of Waukegan

February 23, 1987

THE TOWN OF LIBERTYVILLE, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

BANK OF WAUKEGAN, AS TRUSTEE, ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

504 N.E.2d 1305, 152 Ill. App. 3d 1066, 105 Ill. Dec. 787 1987.IL.217

Appeal from the Circuit Court of Lake County; the Hon. Charles F. Scott, Judge, presiding.

Rehearing Denied April 1, 1987.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. NASH and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiff, the town of Libertyville (township), filed a complaint for condemnation pursuant to the Township Open Space Act (Act) (Ill. Rev. Stat. 1985, ch. 139, par. 321 et seq.) seeking to condemn a "less than fee simple" interest in certain real property held in trust by defendant, the Bank of Waukegan, under trust No. 666 for the benefit of defendants, Mario R. Egidi and Blanche E. Egidi. Other parties having an interest in the property were also named as defendants although they did not participate in this appeal and are not further referred to herein as defendants. The complaint stated that a majority of the registered voters of the township had approved a resolution allowing the town board to enter an open space program, and that the town board had adopted a resolution which authorized the purchase for $96,000 or condemnation of the subject property as part of its open space plan. The "less than fee simple" interest was described in the resolution as "that interest, the acquisition of which will restrict and limit the development of the property to the activities for which it is presently used, subject to certain conservation and other restrictions necessary to accomplish the purposes of the Open Space Act." The township in its complaint for condemnation expressly alleged that it was authorized under the Act to acquire the fee simple title or such lesser interest as may be desired and that it was seeking a "less than fee simple" interest in the subject property.

Defendants filed a motion to dismiss the complaint pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-615, 2-619) contending, inter alia, that the complaint failed to state a cause of action as the subject property was exempt from condemnation under the statute because of its use for farming or agricultural purposes and because it is not "open land" or "open space" as defined by the statute, as the property was less than 50 acres.

At a hearing on the motion to dismiss, the parties stipulated that the underlying fee of the property qualified for farmland assessment and would be exempt from condemnation under the Act. The township did not stipulate that the future development rights are used for agricultural or farming purposes or qualify for the agricultural or farmland exemption from condemnation under the statute. Witnesses for the township testified that the parcel of land from which development rights were sought to be acquired in this action was 46.073 acres and was to be part of the township's open space plan, which was authorized by the voters in a referendum in November 1985. Other areas around the subject property were characterized as open land and open space and, including the subject property, the area of open land and open space was at least 50 acres. The purpose of the condemnation was to safeguard the rural interests of the township, to provide scenic vision to persons travelling along Route 21, and to preserve the environment by generating green space to cleanse the air and by absorbing rainfall. There was testimony that the subject property was annexed to the city of Waukegan subsequent to the institution of these proceedings.

The trial court, in interpreting the Act, found that the exemption from condemnation of real estate used for farming or agricultural purposes under the Act applied to the fee and any other interest in the subject property, and that the piece of property being condemned must be 50 acres or more. For these reasons, the complaint was dismissed by the trial court. An application for attorney fees and costs pursuant to section 7-123 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 7-123) was filed by defendants after the filing of the township's notice of appeal from the dismissal order. The trial court found it had lost jurisdiction to hear the matter upon the filing of the notice of appeal and would not have jurisdiction on this question until completion of the appeal and remandment. Defendants have cross-appealed from this order.

The township raises three issues in its appeal: (1) whether the trial Judge misinterpreted the stipulation; (2) whether the township is authorized under the Act to condemn a conservation easement, extinguishing future development rights, which is appurtenant to land that is used for farming or agricultural purposes; and (3) whether the township is required by the Act to condemn land in units of 50 acres or more. We have allowed an amici curiae brief by the Trust for Public Land and the Land Trust Exchange to be filed in support of the township's brief as to the latter two contentions. Defendants' cross-appeal raises the single issue of the circuit court's jurisdiction to hear their application for attorney fees and costs.

The township's initial contention is that the trial Judge erred when he found that the parties had stipulated that the real estate interest to be acquired is farmland. We summarily reject this argument based upon an examination of the entire record of the proceedings below. While the trial Judge perhaps inartfully reiterated the stipulation, it is evident from all his comments that he understood the distinction the township was making, that the township was seeking to condemn the future development rights to the subject property which it did not stipulate would qualify for the agricultural or farmland exemption. The township made it very clear that the stipulation was only that the underlying fee was used for agricultural or farming purposes.

The township next contends that the trial court erred in determining that the interest they sought to acquire, now described as a conservation easement on the property, which would extinguish the right to develop the land in the future, was exempt from condemnation under the Act. Section 4.02 of the Act permits townships which have been authorized by the voters to establish an open space program:

"[t]o acquire by gift, legacy, purchase, condemnation in the manner provided for the exercise of the right of eminent domain under Article VII of the Code of ...


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