Stahelin v. Forest Preserve Dist.

• Decision Date: 10 October 2007
• Docket Number: No. 2-06-0676.,2-06-0676.
• Citation: 877 N.E.2d 1121,376 Ill. App.3d 765
• Parties: Leland STAHELIN and JES Ventures, L.L.C., Plaintiffs-Appellants, v. The FOREST PRESERVE DISTRICT OF DU PAGE COUNTY and Morton Arboretum, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

877 N.E.2d 1121

376 Ill. App.3d 765

Leland STAHELIN and JES Ventures, L.L.C., Plaintiffs-Appellants, v. The FOREST PRESERVE DISTRICT OF DU PAGE COUNTY and Morton Arboretum, Defendants-Appellees.

No. 2-06-0676.

Appellate Court of Illinois, Second District.

October 10, 2007.

Stephen D. Helm, Steven D. Helm & Associates, James M. Wagner, Helm & Wagner, Naperville, for JES Ventures LLC, Leland Stahelin.

James H. Knippen, Adam C. Kruse, Walsh, Knippen, Knight & Pollock, Chtd., Wheaton, for Forest Preserve District of Du Page County.

James R. Daly, Jason G. Winchester, Adam W. Wiers, Jones Day, Chicago, for Morton Arboretum.

Justice BYRNE delivered the opinion of the court:

Plaintiffs, Leland Stahelin and JES Ventures, L.L.C., are owners of an 18-acre parcel of land bordered on three sides by defendant Morton Arboretum (Morton). Plaintiffs wish to develop the property, and defendant the Forest Preserve District of Du Page County (the District) wishes to preserve the property in its current state, for the benefit of the public. Following negotiations to buy the subject property, which negotiations fell apart, and a suit for condemnation, which was dismissed by the District, plaintiffs brought this action against defendants, seeking: (1) a finding of inverse condemnation and the issuance of a writ of mandamus to initiate condemnation proceedings; (2) a finding of a violation of plaintiffs' substantive due process rights as a result of an alleged conspiracy between Morton and the District; (3) a declaration that certain ordinances approved by the District were ultra vires acts; and (4) the elimination of the cloud on plaintiffs' title to the property. The trial court granted defendants' motions to dismiss the complaint pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2006)). Plaintiffs appeal the dismissal of their complaint against defendants. We affirm.

BACKGROUND

The following facts are taken from the allegations in plaintiffs' complaint and the attached documents. The 18-acre parcel of land owned by plaintiffs is in unincorporated Du Page County, and it is bordered on three sides by Morton, a private arboretum located in Lisle. On December 12, 2000, the District passed an enabling ordinance, No. 00-583 (Phase I ordinance), which authorized agents of the District to begin good-faith negotiations with plaintiffs for the purchase of their land. Morton previously had petitioned the District to consider condemning plaintiffs' land for the purpose of creating a forest preserve. According to plaintiffs' complaint, in the past Morton had attempted to purchase the property from plaintiffs.

The Phase I ordinance provided that plaintiffs could retain a life estate in the land if they wished. The Phase I ordinance set forth the public purpose and necessity for the acquisition. The ordinance provided that "if negotiations to acquire the subject properties through voluntary efforts are not successful, then the [District's] Director, staff, and attorneys are directed to prepare an ordinance authorizing acquisition of the subject property by condemnation." The ordinance further provided: "[I]f the natural flora and fauna of the subject property is threatened by demolition or destruction during good faith negotiations, the Forest Preserve District Executive Director, staff, and attorneys are authorized to take all steps necessary (including temporary restraining order and/or preliminary injunction) to preserve the property to the benefit of the public in its current state."

The good-faith negotiations did not result in agreement for acquisition of the land. On August 21, 2001, the District enacted another ordinance, No. 01-017 (Phase II ordinance), authorizing acquisition of the property through negotiation or condemnation. The Phase II ordinance also set forth the public purpose and necessity for the acquisition of plaintiffs' land.

On the same date, the District filed a complaint for condemnation (Forest Preserve District of Du Page County v. JES Ventures, L.L.C., No. 01-ED-84 (Cir. Ct. Du Page Co.)). The District filed a lis pendens as well. According to plaintiffs, law enforcement officials entered the property and informed plaintiffs not to remove any trees from the land.

On September 20, 2001, plaintiffs filed a traverse and motion to dismiss the condemnation complaint. This filing challenged the public purpose for which the District was condemning the land. The District contested the contentions in the traverse and motion to dismiss.

On April 20, 2004, the District voluntarily dismissed its condemnation action. In addition, the District enacted a third ordinance, No. 04-113 (Abandonment ordinance), which authorized the voluntary dismissal. The District board did not abandon the condemnation action because of lack of necessity for condemnation, stating in the Abandonment ordinance: "[A]lthough the Forest Preserve District continues to believe the fee simple acquisition of the property is important and necessary for the furtherance of the purposes set forth in this Ordinance, the [District] has determined that at this time, it is in the best interest of the [District] to abandon the acquisition of the property and dismiss the condemnation proceedings currently pending." The ordinance further provides that "the abandonment of the property from acquisition as granted by this Ordinance shall not constitute a finding that the [District] does not `need' this property, and the [District] hereby expressly states that the acquisition of the property in the future would be important to furthering the statutory purposes of the [District]."

After the complaint for condemnation was filed on August 21, 2001, plaintiffs made no improvement to the land, such as subdivision or development. "Fearing" the purposes set forth in the Abandonment ordinance, plaintiffs requested that the District delete that language from the Abandonment ordinance. The District refused to do so.

Five months after the District voluntarily dismissed the condemnation action, plaintiffs sought leave in the condemnation action to file claims against the District for declaratory relief, for lost use, and to quiet title. The trial court denied plaintiffs' motion.

Thereafter, on November 21, 2005, plaintiffs filed the instant action, consisting of four counts against the District and Morton, seeking: (1) inverse condemnation and the issuance of a writ of mandamus to initiate condemnation proceedings (count I); (2) a finding that plaintiffs' substantive due process rights were violated as a result of an alleged conspiracy between Morton and the District (count II); (3) a declaration that certain ordinances approved by the District were ultra vires acts (count III); and (4) an elimination of the cloud on plaintiffs' title to the property (count IV).

Defendants filed motions to dismiss pursuant to sections 2-615 and 2-619. In particular, Morton sought dismissal of count II, pursuant to section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 2006)), on grounds that the actions it took relative to the District's acquisition of plaintiffs' property were privileged and protected under the first amendment right to petition and the Noerr-Pennington doctrine. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). Morton also argued, pursuant to section 2-615, that count II did not properly state a claim for relief under section 1983 of the Civil Rights Act of 1964 (42 U.S.C. § 1983 (2000)), due to a failure to sufficiently allege a deprivation of property rights or allege that Morton acted under color of state law. Morton further argued that plaintiffs' claim should be dismissed for failure to exhaust state remedies.

The District sought dismissal of all counts, pursuant to section 2-615, on grounds that: (1) no physical taking occurred; (2) plaintiffs failed to allege a deprivation of the use of the property; (3) plaintiffs failed to allege a deprivation of property rights; (4) the disputed District ordinances were facially valid; and (5) plaintiffs failed to allege that the ordinances gave the District a semblance of title to the property. The District sought dismissal pursuant to section 2-619(a)(9) on grounds that the District's actions were protected by its first amendment right and the Noerr-Pennington doctrine.

Following briefing and a hearing, the trial court granted defendants' motions to dismiss. The trial court dismissed count I, stating: "I don't believe there could possibly be an inverse condemnation where the use of the property is essentially unchanged; and at some future time, even though there is a specter of condemnation in the future and as such time as the property is subject to ordinance, I think the strong presumption has to be that the plaintiffs will be appropriately compensated if and when it actually takes place."

The trial court dismissed count II as to Morton on grounds that Morton's action of petitioning the government was privileged under the first amendment right to petition. As to the District, the trial court stated: "There cannot be a conspiracy to commit an unlawful act when one party is certainly within its rights to do exactly what it did; and I previously found that Morton Arboretum was within its rights to petition the government. * * * And I think the governmental body * * * is charged with the obligation to listen to its constituents."

In dismissing count III, the trial court stated: "I think it's quite clear that the ordinance is within the lawful parameters of the statute by allowing the [District] to designate parcels of property which it believes [are] in the best interest to be targeted or placed on a wish list or however you want to describe it." As to count IV, the trial court said, "I believe that there has to be some...