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12/31/87 the Village of Long Grove, v. First National Bank of

December 31, 1987

THE VILLAGE OF LONG GROVE, PLAINTIFF-APPELLANT

v.

FIRST NATIONAL BANK OF LAKE FOREST, AS TRUSTEE, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

517 N.E.2d 729, 164 Ill. App. 3d 253, 115 Ill. Dec. 318 1987.IL.2004

Appeal from the Circuit Court of Lake County; the Hon. John L. Nickels, Judge, presiding.

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 Village of Long Grove (Long Grove), appeals from an order of the circuit court of Lake County dismissing its petition for condemnation proceedings. The sole issue on appeal is whether Long Grove has statutory authority to condemn property outside of but adjacent to its corporate border for the purpose of creating parks and open spaces.

The facts are not in dispute. On December 16, 1985, Long Grove filed a condemnation petition seeking to condemn three contiguous parcels of land all lying adjacent to property within Long Grove and along the easterly edge of Illinois Route 83. The petition stated that the purpose of the condemnation was for the "creation and maintenance of a park and open space" and cited section 11-61-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 11-61-1) as its sole source of statutory authority. Defendants, the various owners of the three parcels, filed a traverse and motion to dismiss the condemnation petition. The bases argued for dismissal were, inter alia, no authority to file the petition and failure to properly proceed under the statute. In a memorandum in opposition to defendants' motion, Long Grove stated that it was also relying on sections 11-61-2, 11-94-1, and 11-98-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, pars. 11-61-2, 11-94-1, 11-98-1) as indicated in the village's enabling ordinance which was attached to the condemnation petition.

Following an evidentiary hearing, the circuit court entered an order granting defendants' traverse and motion to dismiss. The circuit court, relying on Village of Deerfield v. Rapka (1973), 54 Ill. 2d 217, 296 N.E.2d 336, ruled that section 11 -- 61 -- 1 does not, by itself, confer the authority upon a municipality to condemn property outside its corporate boundaries for the purposes set forth in Long Grove's petition. The court further ruled that, although the petition cited only section 11 -- 61 -- 1, sections 11 -- 61 -- 2, 11 -- 94 -- 1, and 11 -- 98 -- 1 do not provide such authority either.

Long Grove subsequently filed a post-trial motion to vacate in which it cited sections 11 -- 61 -- 1, 11 -- 94 -- 1, 11 -- 98 -- 1, and 11 -- 105 -- 1 as authority to condemn in this situation. The motion was denied and this appeal followed.

On appeal, Long Grove contends, relying on Village of Deerfield v. Rapka (1973), 54 Ill. 2d 217, 296 N.E.2d 336, that section 11 -- 61 -- 1 of the Illinois Municipal Code provides the statutory authority for the condemnation in this case. Alternatively, it argues that sections 11 -- 61 -- 1, 11 -- 94 -- 1, 11 -- 98 -- 1 and 11 -- 105 -- 1, either individually or jointly, give it the power to condemn the property in question.

We begin our analysis by noting that the legislature may authorize the power of eminent domain by statute. (People ex rel. Director of Finance v. YWCA (1981), 86 Ill. 2d 219, 232-33, 427 N.E.2d 70; Department of Public Works & Buildings v. Keller (1975), 61 Ill. 2d 320, 324, 335 N.E.2d 443.) While our constitution does not confer, but recognizes, the inherent right of the State to exercise eminent domain, the power of eminent domain can only be exercised by a municipality or department of government when such grant is specifically conferred by legislative enactment, and then only in the manner and by the agency so empowered. (Forest Preserve District v. City of Chicago (1987), 159 Ill. App. 3d 859, 860-61, 513 N.E.2d 22.) It is within the province of the court to decide whether a particular statute grants such authority, and in making this determination, the court must strictly construe the statutory grant so as to protect the rights of property owners. YWCA, 86 Ill. 2d at 233, 427 N.E.2d 70; Keller, 61 Ill. 2d at 324, 335 N.E.2d at 447.

In Village of Deerfield v. Rapka (1973), 54 Ill. 2d 217, 296 N.E.2d 336, a case relied on by both parties, as well as the circuit court, our supreme court held that section 11 -- 95 -- 1, when read in conjunction with section 11 -- 61 -- 1, provides the authority for a municipality to condemn property outside but immediately adjacent to a municipality's corporate limits for the purpose of establishing a playground or recreational facility. A clear understanding of that decision is necessary to the proper Disposition of this case. Although Long Grove urges that Rapka interprets section 11 -- 61 -- 1 in such a fashion as to make its terms applicable in this case, we interpret Rapka as being decided more narrowly.

In Rapka, the municipality attempted to condemn acreage for establishment of a playground or recreational center outside but adjacent to its corporate boundaries pursuant to section 11-95-1. (Rapka, 54 Ill. 2d at 219, 296 N.E.2d at 337.) Section 11-95-1 does not expressly provide for condemnation, but does provide for the acquisition of property for such use outside a municipality's corporate limits "in such manner as provided by law." (See Ill. Rev. Stat. 1985, ch. 24, par. 11-95-1.) On appeal, the municipality argued that section 11-95-1, combined with section 11-61-1, gave it the power to condemn property outside but adjacent to its corporate boundaries. Rapka, 54 Ill. 2d at 220, 296 N.E.2d at 338.

Although the supreme court recognized that section 11-61-1 does confer a broad power of condemnation upon a municipality, it limited its holding to a condemnation of property under the requirements of section 11-95-1. (Rapka, 54 Ill. 2d at 223, 296 N.E.2d at 339.) There is no language in Rapka to support Long Grove's contention that section 11-61-1, alone, gives a municipality general authority to condemn property outside its corporate limits. It is essential to note that section 11-95-1 specifically refers to other means provided by law in reference to the acquisition of property by a municipality (see Ill. Rev. Stat. 1985, ch. 24, par. 11-95-1), and it was that language which the court in Rapka focused on when combining sections 11-95-1 and 11-61-1 to arrive at its Conclusion that the ...


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