APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
536 N.E.2d 1271, 180 Ill. App. 3d 677, 130 Ill. Dec. 60 1989.IL.380
Appeal from the Circuit Court of Lake County; the Hon. Ward S. Arnold, Judge, presiding.
JUSTICE McLAREN delivered the opinion of the court. DUNN and WOODWARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN
Plaintiff, Town of Libertyville (Libertyville), appeals from an order of the trial court which dismissed its complaint for condemnation against defendants, Lawrence Blecka et al. Libertyville sought to acquire a 10-acre parcel of land from defendants pursuant to the Township Open Space Act (Act) (Ill. Rev. Stat. 1987, ch. 139, par. 321 et seq.). On appeal, Libertyville contends that the trial court erred in determining that, under the Act, open land or open space means a parcel of land which has a size of 50 acres or more.
Libertyville has acquired the fee simple or a lesser interest in 650 acres of land as part of its open-space program and is seeking to acquire an additional 1,300 acres. On September 16, 1987, Libertyville filed an eminent domain action against defendants to acquire a 10-acre parcel of land. On its eastern border, the 10-acre parcel abutted 285 acres of existing township open space. On its western border, the parcel adjoined a 70-acre tract of land which Libertyville made the subject of a separate condemnation action.
In their motion to dismiss Libertyville's complaint, defendants alleged that (1) under the Act, Libertyville did not have the authority to condemn a parcel of land which was less than 50 acres, and (2) Libertyville did not make a bona fide attempt to compensate defendants for their property prior to instituting eminent domain proceedings. After it conducted a hearing on defendant's motion, the trial court dismissed Libertyville's complaint. In a written order, the trial court made the following findings:
"1. Plaintiff Town of Libertyville made a bona fide attempt to agree on the compensation to be paid to Defendants prior to the filing of the Complaint, and the parties were not able to agree on compensation.
2. The property that is the subject of the Complaint for Condemnation ('the Subject Property') is approximately ten (10) acres and is therefore not open land within the meaning of Ill. Rev. Stat. ch. 139, 322(b) because it is less than 50 acres.
3. Because the Court finds that the Subject Property is not open land, Plaintiff does not have authority to condemn the Subject Property under Ill. Rev. Stat. ch. 139, § 324.02."
From that order, Libertyville has timely brought this appeal.
"'Open land' or 'open space' means any space or area of land or water of an area of 50 acres or more, the preservation or the restriction of development or use of which would maintain or enhance the conservation of natural or scenic resources; protect natural streams or water supply; promote conservation of soils, wet lands or shores; afford or enhance public outdoor recreation opportunities; preserve flora and fauna, geological features, historic sites or other areas of educational or scientific interest; enhance the value to the public of abutting or neighboring highways, parks or other public lands; implement the plan of development adopted by the planning commission of any municipality or promote orderly urban or suburban development." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 139, par. 322(b).
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 ...