Court of Appeals of Illinois, First District, Fourth Division
In re APPLICATION OF THE PARK DISTRICT OF LA GRANGE, A BODY POLITIC AND CORPORATE ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF ILLINOIS, TO SELL A PARCEL OF LAND LESS THAN THREE ACRES IN AREA, (The Park District of La Grange, Petitioner-Appellee,
The La Grange Friends of the Parks, Respondent-Appellant).
Appeal from the Circuit Court of Cook County. No. 09 CH 09421 Honorable Susan Fox Gillis, Judge Presiding.
Justices McBride and Taylor concurred in the judgment and opinion.
HOWSE, PRESIDING JUSTICE
¶ 1 Gordon Park is an approximately 17-acre park near the intersection of La Grange Road and Ogden Avenue in La Grange, Illinois. On March 3, 2009 petitioner the park district of La Grange (Park District) filed an application to the circuit court of Cook County under the Park Commissioners Land Sale Act (Act) (70 ILCS 1235/1 et seq. (West 2008)) to sell two parcels of land in Gordon Park. Respondent the La Grange Friends of the Parks (Objector) filed an objection pursuant to the Act. Following a trial on the application, on October 8, 2010 the circuit court granted the application. For the following reasons, we affirm.
¶ 2 BACKGROUND
¶ 3 1. Procedural History
¶ 4 The Park District filed an application for sale of land under section 1 of the Act (70 ILCS 1235/1 (West 2008)). The application stated that the board of commissioners of the Park District (Board) determined by resolution that property comprising 2.82 acres, commonly referred to as Parcel 2 and Parcel 3 of Gordon Park in La Grange, Illinois (collectively, Parcel 2 and Parcel 3 are referred to as West Gordon Park), are no longer needed, necessary, or useful for the purposes of the Park District and that the Board found the sale of the property to be in the public interest. The Board is not a party to these proceedings. The Board's resolution states that the land was previously used by the Park District for various maintenance activities that were transferred to its main recreation center and offices.
¶ 5 The Park District stated it had negotiated the sale of the land to Atlantic Realty Partners, Inc. (ARP), and that the sale was contingent on the trial court's approval of the sale. ARP is not a party to these proceedings. The application listed reasons the parcels are "unnecessary" and listed the benefits of the sale of the land. The benefits included a list of proposed uses of the proceeds of the sale. The application stated that in addition to the Board's legislative determination in its resolution making findings of fact and authorizing the sale of the property, the voters of the park district approved the sale in a referendum in the November 4, 2008 general election.
¶ 6 In September 2007 the Park District had filed a petition for sale of land no longer needed for park purposes. The trial court found that the September 2007 application encompassed a vacated portion of Shawmut Avenue in La Grange (hereinafter vacated Shawmut Avenue) that the park district owned and which is appurtenant to the land at issue in this case. The inclusion of vacated Shawmut Avenue took the total amount of land embraced in the application above three acres and, therefore, the court lacked jurisdiction under the Act. The Park District stated that in November 2008 it exchanged vacated Shawmut Avenue for land owned by the Village of La Grange (Village) pursuant to an agreement for transfers of property by the Park District to the Village (exchange agreement). The Park District transferred vacated Shawmut Avenue to the Village by warranty deed, and the Village became sole owner before the Park District filed the March 2009 application. The Village dedicated vacated Shawmut Avenue for use as a public right of way and granted the Park District a temporary easement to remove a maintenance shed that encroaches on vacated Shawmut Avenue and to perform environmental testing and remediation.
¶ 7 The exchange agreement contains a reverter clause. The reverter clause acknowledges that pursuant to a village ordinance vacated Shawmut Avenue is to be constructed as a public roadway owned by the Village, and the Village's transfer property is to be developed as part of a renovated Gordon Park, "if the Developer [ARP], builds a proposed redevelopment." The reverter clause provides that the properties will revert to their original owners if ARP "has not (1) posted performance security with the Village in a form satisfactory to the Village and (2) commenced earthmoving activity for the Redevelopment by December 31, 2009, or some later date certain to which the Park District and the Village may agree in writing." The Park District and the Village agreed to extend the time limit to January 31, 2010, and agreed to a second extension to December 31, 2010. Subsequently, the Park District and the Village executed a first amended exchange agreement extending the time limit to December 31, 2012 and removing the reference to ARP as the developer.
¶ 8 On April 3, 2009 Objector filed an appearance as objectors to the application.
¶ 9 On June 22, 2009, in separate proceedings not involved with this appeal, the circuit court of Cook County entered an order finding that an auction of the property that was the subject of the September 2007 application (the land at issue here) is void and without legal effect and enjoining the Park District and ARP from carrying out any sale of the property. This court dismissed the appeal of that judgment as moot because the Park District is no longer attempting to sell the subject property pursuant to the referendum.
¶ 10 On September 10, 2009 Objector filed its response to the application. On September 14, 2009, the trial court permitted Objector to engage in discovery.
¶ 11 On March 31, 2010 the Park District and Objector each filed a motion for summary judgment. On April 26, 2010, Objector filed a motion to strike affidavits attached to the Park District's motion for summary judgment, a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2010)), and a notice of constitutional challenge. Objector's motion to dismiss argues the Act is unconstitutional in that it violates the separation of powers clause of the Illinois Constitution. On June 4, 2010, the trial court entered an order on the parties' cross-motions for summary judgment and Objector's motion to dismiss on constitutional grounds. The court made the following findings: (1) the burden of proof is on the Park District; (2) the Park District has the burden to prove its decision was not arbitrary and capricious; (3) the Act is constitutional; (4) the motion to dismiss is denied; and (5) the cross-motions for summary judgment are denied.
¶ 12 On June 9, 2010, Objector filed a motion for an order to certify a question pursuant to Illinois Supreme Court Rule 308 (Ill. S.Ct. R. 308 (eff. Feb. 26, 2010)). On June 10, 2010 the trial court granted the motion and ordered Objector to provide the court with its comments on the proposed questions contained in the court's proposed order. On June 29, 2010, the court entered an order vacating the June 10, 2010 order and denying Objector's motion to certify question. The court rescinded its earlier order and set the matter for trial beginning on July 23, 2010.
¶ 13 On July 20, 2010, Objector filed a notice of motion for clarification. The motion states that its purpose is to obtain a statement of the relevant law for this matter, the current posture, and guidance on how the court intends to proceed in the area of (1) the scope of authority granted to a park district, (2) how statues are to be construed, and (3) constitutionality of these statutes. On July 26, 2010, the Park District filed its response to Objector's motion for clarification and on August 2, 2010, Objector replied. On August 27, 2010, the trial court entered an order on Objector's motion to clarify. The court found that (1) the Park District bears the burden of proof and shall present its evidence first; and (2) the court shall apply the arbitrary and capricious standard. The court's order set the matter for trial beginning on October 5, 2010.
¶ 14 On September 23, 2010, the Park District filed a motion for leave to file an amended application under the Act. The motion stated that the Board's resolution determined that it was in the public interest to sell the land pursuant to the terms of a sales contract in place with ARP, but that due to changes in real estate values, the Board determined to modify the terms of sale. The Board adopted a new resolution to modify the terms to sell Parcel 2 and Parcel 3 for $2, 985, 000 or the average of three valuations of the property from three different Member of the Appraisal Institute (MAI) appraisals and in-kind services related to the sale of the property and/or the improvement and development of Gordon Park, to be agreed upon and accepted by the Board. The Park District sought to amend the application to specifically state the modified terms of the proposed sale. The Board's second resolution "re-adopts the findings of fact contained in [the first resolution, ] and makes the legislative determination that said findings of fact support the adoption of the minimum terms of sale set forth in *** this Resolution." The resolution also specifically found that "It is the legislative determination of the Board *** that the sale of the Property *** will be for the public interest" and "there is a rational relationship between the proposed sale *** and the generation of revenue to support the proposed improvements for Gordon Park described in [the original resolution]."
¶ 15 On October 5, 2010, Objector moved to dismiss the amended application. The motion to dismiss argued that the Park District was seeking to sell more than three acres because vacated Shawmut Avenue is involved in and necessary to the transaction to sell Parcel 2 and Parcel 3. On October 5, 2010, the trial court entered an order on Objector's motion to dismiss. The court found that "the land which [the Park District] is applying to sell under its amended application is less than 3 acres." The court found that it has jurisdiction over the amended application and denied the motion to dismiss. The same day the court entered a separate order granting the Park District's motion for leave to file an amended application and granted the Park District leave to file the amended application instanter.
¶ 16 On October 8, 2010, following a trial, the trial court entered a written order authorizing the Park District to sell all or part of 2.88 acres of land commonly known as Parcels 2 and 3 in Gordon Park at a price to be established by calculating the average of three MAI appraisals. On November 8, 2010 Objector filed a posttrial motion to vacate judgment. On December 22, 2010, the Park District filed a response to Objector's posttrial motion, and on January 18, 2011, Objector filed a reply. On January 20, 2011, the trial court denied Objector's posttrial motion with prejudice. In the same order, the court granted the Park District's motion to strike an answer and objection to the Park District's amended application, which Objector filed after the court entered the judgment.
¶ 17 On January 25, 2011, Objector filed a notice of appeal. The notice of appeal specified the following orders: (1) the June 4, 2010 finding that the Act is constitutional, and the arbitrary and capricious standard applies, and denying Objector's motion for summary judgment; (2) the June 29, 2010 order reversing the June 10, 2010 order granting interlocutory appeal; (3) the August 27, 2010 order denying Objector's motion to clarify; (4) the October 8, 2010, judgment authorizing the sale of the land; and (5) the January 20, 2011 order denying Objector's posttrial motion to vacate.
¶ 18 2. Evidence at Trial
¶ 19 The parties adduced the following evidence at the trial on the Park District's application pertinent to the resolution of this appeal.
¶ 20 A. Park District
¶ 21 Don Robertson, a member of the board of the American Youth Soccer Organization (AYSO) testified he plans which players play on which fields in La Grange based on player age and the size of the field. AYSO formerly played games in the area of the park occupying the northwest corner–which is included in the land at issue in this case–but stopped. He stopped using West Gordon Park because the land slopes to the east, there is a tree in the area that collects bees, presenting a problem for the younger soccer players who used that portion of the park. The most severe problem for the young and inexperienced soccer players who played there was the severe slope of the property. The areas in the eastern portion of Gordon Park could accommodate a field for younger players, who make up the majority of children in his program. Robertson testified he does not use the "main" portion of Gordon Park–which is not included in the proposed sale and is at times referred to as East Gordon Park–because it holds water, which might result in the cancellation of games. The eastern portion of Gordon Park will not accommodate full-sized soccer field. He testified that having a full-sized soccer field at Gordon Park would benefit his program. Robertson testified the west area could be used for other recreational activities.
¶ 22 Thomas Cushing, president of the La Grange Little League, testified Gordon East was used for ladies' softball within the past year on a reduced basis. In April 2009 18 of the first 24 ladies' softball games scheduled at Gordon Park were rained out on the same nights games were being played at other parks in the area. The south baseball fields retain water and would be unplayable for up to five days after a rain. In 2010 Cushing pulled one boys' baseball league's games from Gordon East, as well as 96 out of 125 ladies' softball games. Gordon Park has no permanent bleachers, no permanent bathroom, and no concession stand. Cushing does not know what is causing the south fields in Gordon East to gather water.
¶ 23 Jim Farnan, who was president of the La Grange Little League in 2007 and 2008, testified the fields in East Gordon Park were unreliable because they would flood after rain. Other fields would be back in use two or three days after rain, but Gordon Park would still be shut down, resulting in cancelling or rescheduling games. The fields have very little shade and some teams' managers brought tarps to cover dugouts to provide shade. The parking lots are a long distance from the ball fields, and there is no running water and no water fountains. Farnan agreed West Gordon Park could be used for various recreational activities like Frisbee or bocce ball. His children did not use the playground in West Gordon Park because it was out of sight of the ball fields. Farnan testified rain-outs happen often in Gordon East and more frequently than at other parks. He first noticed problems with the fields in Gordon Park in 2006.
¶ 24 Kate Gronan has worked as a marketing consultant for the Park District, working with it to draft news releases and to prepare information about the proposed sale. Gronan founded a political action committee (PAC) to encourage citizens to vote in favor of the referendum to sell the land in Gordon Park. That PAC's primary source of funds was private contributions by ARP. Gronan has lived in La Grange for 19 years and testified that West Gordon Park was "not that usual a place to go." She primarily went to Gordon Park for specific events. Between 1997 and 1998 Gronan arranged play groups at local playgrounds but never used West Gordon Park, but in the area in which she lives, Gordon Park would not be a "natural destination." Gronan has attended community events in the eastern portion of the park.
¶ 25 Richard Aaronson is the president of ARP. ARP was selected through a competitive bid process to develop a mixed use community at the corner of La Grange Road and Ogden in La Grange. ARP's original bid was to purchase only the former YMCA site, which is adjacent and to the south of the Park District's property in West Gordon Park. But discussions with the Village lead to the incorporation of "surplus property" belonging to the Park District. The Park District informed ARP what "surplus property" it had at the site of the proposed development, and the parties entered a purchase agreement in 2006 for a purchase price of $4.5 million dollars and services related to the renovation of the eastern portion of Gordon Park. Aaronson testified ARP would be purchasing Parcel 2 and Parcel 3 and not vacated Shawmut Avenue.
¶ 26 ARP never completed the purchase. Aaronson testified ARP later made a revised proposal for $2, 985, 000 and services related to the redevelopment of the eastern portion of Gordon Park. ARP never reached a final agreement with the Park District to purchase the subject property and has no binding agreement to build the proposed development. ARP is still interested in buying the property, if the Park District can sell it.
¶ 27 Bradley Belcaster is a member of the Board. Parcel 2 contains an unused maintenance shed and a small play area. The rest of Parcel 2 is paved area. Parcel 3 consists of trees, grass, and a small gazebo, and two tennis courts. The agreed to price of $4, 555, 866 included coordinating with ARP's development work to bring utilities into Gordon Park and re-engineering the park for storm water drainage. Coordinating the work in this manner would result in savings to the Park District from having to complete that work independently. The Park District was unable to complete the sale because it was unable to deliver title. The Board received ARP's revised proposal by letter dated October 14, 2009. The Board agreed to accept the revised proposal after discussing issues regarding earnest money and the enumeration of the additional services. Belcaster testified the zoning for ARP's project had expired. The Park District has had no discussions with ARP since October 2009.
¶ 28 Robert Metzger testified that he was a Park District commissioner in La Grange for eight years, ending in June 2010. The Park District had discussions as to why to sell the subject property. When the decision was made, Parcel 2 was mostly consumed by a vacant maintenance facility. The Park District had purchased a recreation center and one-third of that new facility was used as a larger maintenance facility. Metzger described Parcel 3 as "not part of the main part of the park." During soccer season Parcel 3 was used as a very small soccer field for very small children. The playground was "challenging" because it was out of sight. The Park District discussed whether Parcel 2 and Parcel 3 were useful and necessary. Metzger testified Parcel 2 "was an easy one because of the fact that the maintenance facility sat on there and clearly that no longer was *** there." As to Parcel 3, Metzger testified, it "was really not very useful for any particular benefit." Parcel 3 had no significant use other than as a soccer field, but there is a playground on Parcel 3. The last time Metzger was on Parcel 3, a year before his testimony, the playground was surrounded by a fence because it was in disrepair. The Park ...