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12/21/88 the Town of Libertyville, v. First National Bank of

December 21, 1988

THE TOWN OF LIBERTYVILLE, PLAINTIFF-APPELLANT

v.

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

"'OPEN LAND' . . . MEANS ANY . . . AREA OF LAND . . . OF AN AREA OF 50 ACRES OR MORE . . .." (ILL. RE

v.

STAT. 1987, CH. 139, PAR. 322(B).)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

533 N.E.2d 54, 178 Ill. App. 3d 591, 127 Ill. Dec. 436 1988.IL.1845

Appeal from the Circuit Court of Lake County; the Hon. Alvin I. Singer, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. NASH, J., concurs. JUSTICE DUNN, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Plaintiff, Town of Libertyville (township), filed an eminent domain action against defendants, First National Bank of Lake Forest, as trustee under trust No. 6756, et al. Plaintiff sought to acquire a 2.985-acre parcel of land from defendants pursuant to the Township Open Space Act (Act) (Ill. Rev. Stat. 1987, ch. 139, par. 321 et seq.). The circuit court dismissed plaintiff's complaint, ruling that the parcel does not constitute open land as that term is defined in section 2(b) of the Act (Ill. Rev. Stat. 1987, ch. 139, par. 322(b)). The primary issue on appeal is whether, under certain circumstances, a parcel of land with an area of less than 50 acres can be considered open land. We hold that it cannot, and we affirm the circuit court's dismissal order.

For purposes of defendants' motion to dismiss, the parties stipulated that plaintiff was authorized by means of a resolution to purchase a 90-acre parcel of land and an 18-acre parcel, both of which adjoined defendants' property. Plaintiff had made offers to purchase both parcels, but had not initiated eminent domain proceedings against either of them.

It is undisputed that plaintiff was authorized in an election held pursuant to section 3 of the Act (Ill. Rev. Stat. 1987, ch. 139, par. 323) to institute an open space program. Plaintiff's board of trustees thereby received the authority pursuant to section 4.02 of the Act (Ill. Rev. Stat. 1987, ch. 139, par. 324.02) to acquire the fee or any lesser interest in open land as that term is defined in section 2 of the Act (Ill. Rev. Stat. 1987, ch. 139, par. 322). Under section 4.02, open land may be acquired by gift, legacy, purchase, or through the exercise of the right of eminent domain.

We cannot appreciate the ambiguity ascribed to section 2(b) of the Act (Ill. Rev. Stat. 1987, ch. 139, par. 322(b)) by plaintiff. Our reading of the relevant statutes, stripped of irrelevant references, empowers the township:

"To acquire by . . . condemnation . . . the fee . . . in real property that is open land, as defined in Section 2 [Ill. Rev. Stat. 1987, ch. 139, par. 322(b)] . . .." (Ill. Rev. Stat. 1987, ch. 139, par. 324.02.)

And, the Act defines "open land":

Defendants contend that under these provisions, only areas of land consisting of 50 acres or more can qualify for condemnation as open space. Plaintiff argues that these provisions were only intended to impose a minimum acreage requirement upon a township's entire open space program.

When a court interprets a statutory provision, it must attempt to ascertain and give effect to the intent of the legislature in enacting the provision. (Town of Libertyville v. Bank of Waukegan (1987), 152 Ill. App. 3d 1066, 1070, 504 N.E.2d 1305, 1308.) If this can be done solely by examining the language of the provision, the court may not resort to other aids for construction. (Maloney v. Bower (1986), 113 Ill. 2d 473, 479, 498 N.E.2d 1102, 1104.) When a statute contains language with an ordinary and popularly understood meaning, the courts will assume that is the meaning intended by the legislature. (People v. Haywood (1987), 118 Ill. 2d 263, 515 N.E.2d 45.) When interpreting a statute, the courts must give the language of the statute its plain and ordinary meaning. (Maloney v. Bower (1986), 113 Ill. 2d 473, 479, 498 N.E.2d 1102, 1104.) The legislature has the power to define terms within a statute in any reasonable manner. (Commonwealth Edison Co. v. Property Tax Appeal Board (1984), 102 Ill. 2d 443, 468 N.E.2d 948.) If the statutory language is clear and unambiguous, the court must give effect to that language. Maloney, 113 Ill. 2d at 479, 498 N.E.2d at 1104.

We conclude that the statute in effect at the time of the attempted taking was not ambiguous. It provided that any real property to be acquired must be open land, which is defined as any area of land of an area of 50 acres or more. Plaintiff would require us to disregard the limiting clause of section 4.02 of the Act (Ill. Rev. Stat. 1987, ch. 139, par. 324.02) by holding that the statute empowers the township "to acquire by . . . condemnation . . . the fee . . . in any real property." But, the statute qualifies "real property" by providing further that it applies to real property "that is open land as defined in Section 2." In ...


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