Forest Preserve Dist. v. Brown Family Trust

• Decision Date: 17 July 2001
• Docket Number: No. 2-00-0289.,2-00-0289.
• Parties: The FOREST PRESERVE DISTRICT OF DU PAGE COUNTY, Plaintiff-Appellant and Cross-Appellee, v. Loren and Gisela BROWN FAMILY TRUST, Defendant-Appellee and Cross-Appellant (Bruce Gordon, Dartmoor Homes Acquisition Corporation, and Unknown Others, Defendants-Appellees).
• Court: United States Appellate Court of Illinois

753 N.E.2d 1110

323 Ill. App.3d 686

257 Ill.Dec. 484

The FOREST PRESERVE DISTRICT OF DU PAGE COUNTY, Plaintiff-Appellant and Cross-Appellee, v. Loren and Gisela BROWN FAMILY TRUST, Defendant-Appellee and Cross-Appellant (Bruce Gordon, Dartmoor Homes Acquisition Corporation, and Unknown Others, Defendants-Appellees).

No. 2-00-0289.

Appellate Court of Illinois, Second District.

July 17, 2001.

Scott M. Day, Rachel K. Robert, Day & Robert, P.C., Robert G. Black, Law Offices of Robert G. Black, Naperville, for Forest Preserve District of Du Page County.

Stephen D. Helm, Jacqueline J. Casey, David W. Krula, Steve Helm & Associates, Naperville, for Loren and Gisela Brown Family Trust.

Gary M. Vanek, Schwarz, Vanek & Weiler, P.C., West Dundee, for Bruce Gordon.

Samuel G. Harrod IV, Meltzer, Purtill & Stelle, Schaumburg, for Dartmoor Homes Acquisition Corp.

Michael M. Roth, Wildman, Harrold, Allen & Dixon, Lisle, for County of Du Page, Homewood-Flossmoor Park District, McHenry County Preservation District, City of Naperville, Amici Curiae.

Bryan E. Mraz, Law Offices of Bryan E. Mraz & Associates, Roselle, for Village of Bartlett, Amicus Curiae.

James E. Ryan, Attorney General, Joel D. Bertocchi, Solicitor General, George J. Sotos, Mary T. Nagel, Assistant Attorneys General, Chicago, for the People ex rel. James Ryan, Amicus Curiae.

Justice O'MALLEY delivered the opinion of the court:

Plaintiff, the Forest Preserve District of Du Page County (the District), appeals the trial court's entry of summary judgment in favor of defendants, the Loren and Gisela Brown Family Trust (the Browns), Bruce Gordon, Dartmoor Homes Acquisition Corp. (Dartmoor), and unknown others. On appeal, the District argues that the trial court erred in granting summary judgment in favor of defendants.

In the nonpublishable portion of this opinion, we address the District's contention that the trial court erred in denying the District's motion to disqualify the Browns' counsel. We also address therein the Browns' cross-appeal of the trial court's orders striking portions of their traverse and motion to dismiss and denying their motion to reconsider.

FACTS

On May 19, 1998, the District passed Ordinance No. 98-206, which authorized the District's executive director, staff, and attorneys (collectively, the staff) to enter into negotiations for the acquisition of property owned by the Browns. The ordinance provided in relevant part:

"WHEREAS, the Forest Preserve District of DuPage County, Illinois has determined a valuation for said fee simple parcel which it believes to represent a fair amount to be offered to the owners of said property.

NOW, THEREFORE, BE IT ORDAINED by the President and the Board of Commissioners of the Forest Preserve District of DuPage County, Illinois, as follows:

1. That it is necessary and desirable that the real estate described in Exhibit A and depicted in Exhibit B attached hereto, be acquired in fee simple by the said Forest Preserve District for one or more of the purposes set forth.

2. That the Executive Director, his staff and the Forest Preserve District attorneys be, and hereby are, authorized to negotiate for the acquisition of the property in fee simple described in Exhibit A and depicted in Exhibit B 3. That the Executive Director, his staff, and the Forest Preserve District attorneys be, and are hereby authorized, to respond to each individual property owner who expresses a desire to convey less than fee simple, either by less than the entire parcel of real estate or by conservation easement, by fully receiving the property owners proposal and submitting a report to the Forest Preserve District Land Acquisition Committee evaluating the extent to which said lesser acquisition compromises the need and desire for the fee simple acquisition, and the cost of effectiveness of said compromise. No fee simple acquisition shall be reduced or altered without approval of the President and Forest Preserve District Board of Commissioners." Forest Preserve District of Du Page County, Ordinance No. 98-206 (eff. May 19,1998).

The District and the Browns did not reach an agreement.

On June 2, 1998, the District passed Ordinance No. 98-228, which provided in relevant part:

"WHEREAS, on the 19th day of May, 1998, Ordinance No. 98-206 was adopted providing for the negotiation for the acquisition of the property described in Exhibit A and depicted in Exhibit B attached hereto; and

WHEREAS, the Forest Preserve District of DuPage County, Illinois, has attempted to negotiate the purchase of said property but has been unable to agree with the owners of the property concerning just compensation.

NOW, THEREFORE, BE IT ORDAINED by the President and board of Commissioners of the Forest Preserve District of DuPage County, Illinois, as follows:

1. That it is necessary and desirable that the real estate described in Exhibit A and depicted in Exhibit B attached hereto, be acquired in fee simple by the said Forest Preserve District for one or more of the purposes set forth.

2. That the Executive Director, his staff and the Forest Preserve District attorneys be, and hereby are, authorized to take the necessary steps, either by negotiation or condemnation, to acquire title to the real estate described in Exhibit A and depicted in Exhibit B attached hereto, and to continue to negotiate for the acquisition of the property described in Exhibit A and depicted in Exhibit B." Forest Preserve District of Du Page County, Ordinance No. 98-228 (eff. June 2, 1998).

On July 8, 1998, the District filed a complaint for condemnation. The complaint named the Browns as owners of the real estate and listed defendants Bruce Gordon and Dartmoor Homes Acquisition Corp. as other interested parties. In response, the Browns filed a traverse and motion to dismiss, asserting, among other things, that the complaint for condemnation was filed without proper and lawful authority.

[The following material is nonpublishable under Supreme Court Rule 23.]

MATERIAL REMOVED

[The preceding material is nonpublishable under Supreme Court Rule 23.]

Both sides moved for summary judgment on the traverse and motion to dismiss. On November 29, 1999, the trial court granted summary judgment in favor of the Browns, holding that Ordinance No. 98-228, which authorized the initiation of the condemnation proceedings, was invalid. In its memorandum opinion and order, the trial court found that the Ordinance "improperly delegates the decision to condemn to the District's attorneys and staff." The trial court further found:

"The language of Ordinance [No.] 98-228 lacks any proper direction or limitation to the [District's] staff and attorneys regarding the specific authority to condemn. The broad language authorizing the District's staff to `take the necessary steps' to acquire the property, `either by negotiation or condemnation' fails to meet the specificity mandated for a proper execution of condemnation authority. Ordinance No. 98-228 is void because it unlawfully delegates discretionary power to staff and attorneys. The power to condemn is specifically vested by the Illinois Legislature in the Commissioners of the [District] only."

The District's motion to reconsider was subsequently denied.

Nonpublishable material removed here

Amicus curiae briefs in support of the District have been filed in this matter by the Village of Bartlett, the People of the State of Illinois, the Illinois Department of Transportation, the Illinois State Toll Highway Authority, the County of Du Page, the City of Naperville, the McHenry County Preservation District, and the Homewood-Flossmoor Park District.

Nonpublishable material removed here

WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS

The District argues that the trial court erred in entering summary judgment in favor of the Browns. Summary judgment should only be granted when the pleadings, depositions, affidavits, and admissions show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Largosa v. Ford Motor Co., 303 Ill.App.3d 751, 753, 237 Ill.Dec. 179, 708 N.E.2d 1219 (1999). In ruling on a summary judgment motion, a court must construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Largosa, 303 Ill.App.3d at 753, 237 Ill.Dec. 179, 708 N.E.2d 1219. Our review of a trial court's order granting summary judgment is de novo. Largosa, 303 Ill.App.3d at 753,

237 Ill.Dec. 179,

708 N.E.2d 1219.

As a sovereign, the State has the inherent power to condemn property for public use. Forest Preserve District v. West Suburban Bank, 161 Ill.2d 448, 453, 204 Ill.Dec. 269, 641 N.E.2d 493 (1994). "The necessity or propriety of exercising the right of eminent domain is a political question,—one which belongs exclusively with the legislature to determine." Village of Hyde Park v. Oakwoods Cemetery Ass'n, 119 Ill. 141, 149, 7 N.E. 627 (1886). However, the legislature may delegate the power of eminent domain to other governmental bodies (City of De Kalb v. Anderson, 43 Ill.App.3d 915, 917, 2 Ill.Dec. 617, 357 N.E.2d 837 (1976)), and it is the province of the courts to determine whether that power has been exercised within that grant (Forest Preserve District, 161 Ill.2d at 453, 204 Ill.Dec. 269, 641 N.E.2d 493).

A governmental body has only such powers of eminent domain as are conferred upon it by the appropriate legislative body, and a statute or ordinance conferring the power of eminent domain must be strictly construed. Village of Round Lake v. Amann, 311 Ill.App.3d 705, 712, 244 Ill.Dec. 240, 725 N.E.2d 35 (2000); Forest Preserve District v. Estes, 222 Ill. App.3d 167, 175, 164 Ill.Dec. 724, 583 N.E.2d 640 (1991). The right of eminent domain by a department of government can be exercised only when such grant is specifically conferred by legislative enactment, and then only in the manner and by the agency so...