APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
544 N.E.2d 1151, 188 Ill. App. 3d 809, 136 Ill. Dec. 376 1989.IL.1556
Appeal from the Circuit Court of Lake County; the Hon. Ward S. Arnold, Judge, presiding.
JUSTICE LINDBERG delivered the opinion of the court. UNVERZAGT, P.J., and WOODWARD, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG
Plaintiff, Town of Libertyville, filed an eminent domain action against defendants, Northwest National Bank of Chicago, as trustee under trust No. 2402, et al., seeking to condemn a 40-acre parcel of land pursuant to the Township Open Space Act (the Act) (Ill. Rev. Stat. 1987, ch. 139, par. 321 et seq.). The trial court, finding that the 40-acre parcel was not "open land" or "open space" under the Act (Ill. Rev. Stat. 1987, ch. 139, par. 322(b)), dismissed plaintiff's complaint with prejudice. Plaintiff appeals from this dismissal.
The property at issue is a square 40-acre parcel located in southeastern Libertyville Township. It is bounded on the west by St. Mary's Road. Directly across St. Mary's Road from the property are 570 acres owned by the Lake County Forest Preserve District. The property is bounded on the east by a 200-acre property owned by Edward H. Bennett, Jr. (Bennett). It is bounded on the north by a subdivision and on the south by properties having various owners.
Bennett has applied to the Village of Mettawa (Mettawa) for "approval of a Preliminary Plat Cluster R-1 Development." In an affidavit filed in the trial court, Bennett indicated that "[i]f the Preliminary Plat is approved by the Village of Mettawa, he intends to donate to the Town of Libertyville for open space purposes" 151.08 acres of his property contiguous to the 40-acre parcel at issue in the case at bar., Plaintiff has established an open-space program pursuant to the Act. (Ill. Rev. Stat. 1987, ch. 139, par. 321 et seq.) Plaintiff therefore has the power:
"To acquire by gift, legacy, purchase, condemnation . . ., lease, agreement or otherwise the fee or any lesser right or interest in real property that is open land, as defined in Section 2, and to hold the same . . .." (Ill. Rev. Stat. 1987, ch. 139, par. 324.02.)
The parcel of land at issue is only 40 acres in area and so cannot be acquired by plaintiff as open land unless it can be combined with other property to meet the 50-acre minimum requirement of the Act. Plaintiff essentially argues three different theories under which this might be done., Plaintiff states one theory as follows:
"he Legislature's choice of language shows that it intended for the 50-acre minimum to apply only to the aggregate area of the various parcels acquired as part of a township's open space program and not to the individual parcels themselves."
This theory is untenable because, as we held in Town of Libertyville v. Ypma :
"he statutory language of section 2(b) of the Act is clear and . . . it provides that a parcel of land with an area of less than 50 acres cannot be considered open land. Consequently, we find the subject property here, which consists of less than 50 acres, cannot be condemned merely because at the time of the eminent domain action against defendants, Libertyville's openspace program was comprised of well over 50 acres." (Town of Libertyville v. Ypma (1989), 181 Ill. App. 3d 305, 309, 536 N.E.2d 1275, 1278.)
Thus, the mere fact that plaintiff has acquired more than 50 acres for its open-space program as a whole does not permit plaintiff to acquire individual tracts less than 50 acres in area under the Act. See ...