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03/29/89 the Town of Libertyville, v. Edward E. Ypma

March 29, 1989

THE TOWN OF LIBERTYVILLE, PLAINTIFF-APPELLANT

v.

EDWARD E. YPMA, EX'R OF THE ESTATE OF CATHERINE YPMA, ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

536 N.E.2d 1275, 181 Ill. App. 3d 305, 130 Ill. Dec. 64 1989.IL.438

Appeal from the Circuit Court of Lake County; the Hon. Wallace B. Dunn, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. DUNN and McLAREN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Plaintiff, Town of Libertyville (Libertyville), brought this eminent domain action, pursuant to the Township Open Space Act (the Act) (Ill. Rev. Stat. 1987, ch. 139, par. 321 et seq.), in the circuit court of Lake County against defendants, Edward E. Ypma, executor of the estate of Catherine Ypma, and unknown owners. Libertyville sought to acquire an approximately 19-acre parcel of land located on the southwest corner of the intersection of O'Plaine Road and Buckley Road in Libertyville Township. Defendants filed a traverse and motion to dismiss which the trial court granted. This appeal is taken from that judgment.

On appeal, Libertyville contends: (1) that the 19-acre subject property is "open land" within the meaning of the Act; (2) that the plain language of the Act does not contain a contiguity requirement; (3) that even if the Act contained a contiguity requirement, the subject property is part of a contiguous area of more than 50 acres of open land; and (4) that the trial court erred in disregarding uncontroverted expert testimony and in rendering a decision inconsistent with the uncontested facts established in that testimony.

Libertyville instituted this eminent domain proceeding pursuant to the Township Open Space Act (Ill. Rev. Stat. 1987, ch. 139, par. 321 et seq.), which authorizes Illinois townships to establish open-space programs. Under the Act, a township with an open-space program has the power to acquire interests in open land or open space by purchase, condemnation, or other means. (Ill. Rev. Stat. 1987, ch. 139, par. 324.02.) Section 2(b) of the Act defines "open land" or "open space" as "any space or area of land or water of an area of 50 acres or more" which meets certain open-space criteria. Ill. Rev. Stat. 1987, ch. 139, par. 322(b).

In response to the condemnation complaint, defendants filed a motion to dismiss, alleging that Libertyville had failed to state a claim and that the subject property may not be condemned pursuant to the authority granted under the Act since the property was less than 50 acres in size. The trial court denied defendants' motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-615) and struck defendants' motion to dismiss pursuant to section 2-619 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2-619). The trial court granted defendants leave to amend the latter motion.

In their amended section 2 -- 619 motion defendants asserted that Libertyville's condemnation complaint should be dismissed because the subject property "consists of 19 acres which is an amount clearly not contemplated by the Township Open Space Act." The trial court denied defendants' amended section 2 -- 619 motion, finding that "the fact that the subject parcel is less than 50 acres does not, in and of itself, preclude plaintiff from condemning the subject parcel."

Defendants' motion for reconsideration was denied, but the court granted defendants leave to file a traverse and motion to dismiss. In support of their motion, defendants argued that other parcels of open land could not be combined with the subject property to reach the 50-acre requirement of section 2(b) of the Act. The trial court considered defendants' argument in a hearing limited, pursuant to an agreed prehearing order, to the "fifty acre issue."

At the hearing Libertyville offered the testimony of a private land planner, Lane Kendig, whose firm drafted the Libertyville township open-space plan. Kendig's testimony established that the subject property is located at the southwest corner of the intersection of Buckley Road and O'Plaine Road; that to the north of the parcel and across Buckley Road is Ascension Cemetery, owned by the Catholic Archdiocese of Chicago; that on the east, west, and south sides of the subject property are residential developments in the Village of Green Oaks; and that located kitty-corner, but across Buckley Road, from the subject property is a three-acre parcel. At the time of the hearing this parcel was also under condemnation by Libertyville.

During his testimony, Kendig opined that the subject property met the criteria for open land as defined by the Act and that the preservation or restriction of the development of the subject property would advance the open-space criteria. Kendig testified that Ascension Cemetery also met the open-space criteria and that land planners considered it "borrowed open space" which, by its very nature, is likely to be preserved as open space.

At the Conclusion of the hearing, the court stated that although the subject property was less than 50 acres, it could be considered open space under certain circumstances. By use of example, the court implied that if the subject property was contiguous to existing open space owned by Libertyville or at least to property under condemnation, so that combined, the subject property and the other property totaled at least 50 acres in area, Libertyville could condemn the subject property. In the court's opinion the subject property did not adjoin any open land owned ...


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