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07/07/89 the Town of Libertyville, v. Patrick Connors Et Al.

July 7, 1989





541 N.E.2d 250, 185 Ill. App. 3d 317, 133 Ill. Dec. 413 1989.IL.1079

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


PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. LINDBERG J., concurs. JUSTICE REINHARD, Dissenting.


Pursuant to the Township Open Space Act (the Act) (Ill. Rev. Stat. 1985, ch. 139, par. 321 et seq.) plaintiff, Town of Libertyville (Libertyville), brought this condemnation action in the circuit court of Lake County against defendants, Patrick Connors, Cosmopolitan National Bank of Chicago, as trustee of trust No. 12398, and unknown owners. Libertyville sought to acquire the "future development rights" to two parcels of land owned by defendants and totaling 68.45 acres in size. The two parcels were separated by Guerin Road. Pursuant to section 2-619 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-619), defendants filed a motion to dismiss, asserting that Libertyville lacked the authority to acquire an interest in the parcels. Following an evidentiary hearing, the trial court granted defendants' motion. This appeal followed.

The property in question consists of two parcels of land separated by Guerin Road. The parcel on the south side of Guerin Road equals approximately 40 acres and adjoins property on the south and west owned by the Lake County Forest Preserve District. The parcel on the north side of Guerin Road is approximately 28.45 acres. Defendant Patrick Connors and his wife have resided on the subject property for 33 years. Connors keeps horses on the property, and at the time of the hearing on defendants' motion to dismiss, he had 33 horses.

In connection with his horse operation Connors had two large barns, a tack room, two loafing sheds for protecting the horses in bad weather, two electric horse-walking operations, five outside pen-type stall buildings, 15 electric water tanks, several small paddock areas, and three major pasture areas on the parcel south of Guerin Road. The Connors' home was located on one acre of this southern parcel. The northern parcel of Connors' property consisted of one pasture with a paddock and a loafing-shed area. At the hearing, Connors presented photographs depicting the various facilities and equipment he used in his horse operation.

Connors also put into evidence applications he had made in 1974, 1975, and 1976 to the county assessor for farm valuation of his property and the notices of the establishment of that valuation. Additionally, Connors presented evidence of applications he had made to the Lake County building department in 1965 and in 1970 for construction of barns and the receipts he received, indicating that each building permit pertained to buildings with a farm or agricultural exemption. Connors testified that since 1971, as indicated on the 1974 application for farm valuation, the property was exempt for farm use. Connors related that because of the farm exemption, his taxes on the property were based on a much lower rate than what he would have to pay if he did not have the exemption.

The evidence showed that Connors had extensive experience playing polo and that he trained most of his horses for polo. Those horses that were unsuitable for polo Connors sold as jumpers or pleasure horses. Connors testified that he did not advertise the sale of his horses in the telephone book, in periodicals, or with a sign. According to Connors, advertising would not generate any buyers because those who purchase polo ponies either return to the same seller with whom they have previously done business or contact one to whom they have been referred. Connors related that any local polo players knew him and knew he sold polo ponies. Connors stated that income he derived from his horse farm was strictly due to the sale of horses. That income amounted to $5,500 in 1983, $6,500 in 1984, $11,200 in 1985, and $12,000 in 1986. With the exception of 1985, Connors' expenses for maintenance of his horses during these years were greater than the income derived from the sale of horses. Connors presented no bills of sale, income tax returns, or other written records evidencing the sale of his horses.

Connors' testimony revealed that he is the sole owner of an insurance business which he operates out of his home. The business has salaried employees. Connors stated that he maintained separate bank accounts for his insurance business. Connors had no separate bank accounts for his horse operation and stated that he commingled any finances from that operation with his personal finances. Connors had no salaried employees for the horse operation. When asked if he utilized a business return to report to the Internal Revenue Service the income from the sale of his horses, Connors invoked the fifth amendment privilege against self-incrimination. Connors also invoked the fifth amendment in refusing to answer how he reported to the IRS his expenses for the horse operation.

Libertyville tried to introduce into evidence a petition for annexation to Waukegan filed by Connors a few weeks before the hearing on Connors' motion to dismiss. Connors' objection to the petition was sustained. Later in the hearing, Libertyville introduced the petition by way of an offer of proof. The petition showed that Connors as petitioner described both the parcel north of Guerin Road and the parcel south of Guerin Road as contiguous to the City of Waukegan. When Connors presented his case, he referred to the annexation on direct examination and testified that the annexation allowed him to continue all operations he had pursued in the past on his property, including his horse operation. On cross-examination Connors admitted that both parcels were contiguous for annexation purposes.

Subsequent to the hearing on Connors' motion to dismiss, the trial court granted the motion, finding that the subject property, consisting of two parcels separated by Guerin Road, could not be considered as one area. According to the court, neither parcel, therefore, met the 50-acre requirement of the Act. (Ill. Rev. Stat. 1985, ch. 139, par. 322(b).) The court also found that the land owned by the Lake County Forest Preserve District adjacent to the parcel south of Guerin Road could not be used to compute the 50-acre minimum for that parcel. The court stated that if the acres of open land already acquired by Libertyville and lying adjacent to the parcel north of Guerin Road were added to Connors' northern parcel, the total acreage of the northern parcel would still be less than 50 acres.

Additionally, the court determined that Connors' property was exempt from acquisition by Libertyville because Connors' use of the land as a horse farm constituted a farming and agricultural use within the meaning of the Act. Ill. Rev. Stat. 1985, ch. 139, par. 324.02.

Libertyville appeals, contending that: (1) the trial court erred in finding that the Act requires Libertyville to acquire land in individual parcels of at least 50 acres; (2) the trial court's finding that Connors' property is devoted to farming or agricultural use and therefore exempt from condemnation was against the manifest weight of the evidence; and (3) Connors failed to meet his burden of proving that the subject property qualified for exemption from condemnation under the Act.

We first address Libertyville's contention that by bringing his motion to dismiss under section 2 -- 619 of the Code, defendant Connors assumed the burden of proving that the subject property qualified for exemption from condemnation under the Act. Connors argues that the burden of proof was on Libertyville to show that it had the power to acquire Connors' land. Had Connors filed a traverse and motion to dismiss we would agree with his contention. When a traverse is filed challenging a condemnor's authority to condemn, the burden is on the condemnor to demonstrate its authority. (Department of Public Works & Buildings v. Keller (1975), 61 Ill. 2d 320, 324.) However, Connors filed only a motion to dismiss, and the party bringing a motion to dismiss has the burden of proving the affirmative ...

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