Forest Preserve District v. Loren & Gisela Brown Family Trust

753 N.E.2d 1110, 323 Ill. App. 3d 686, 257 Ill. Dec. 484
CourtAppellate Court of Illinois
DecidedJuly 17, 2001
Docket2-00-0289
StatusPublished
Cited by20 cases

This text of 753 N.E.2d 1110 (Forest Preserve District v. Loren & Gisela Brown Family Trust) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Forest Preserve District v. Loren & Gisela Brown Family Trust, 753 N.E.2d 1110, 323 Ill. App. 3d 686, 257 Ill. Dec. 484 (Ill. Ct. App. 2001).

Opinions

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 Du Page 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 Du Page 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 ánd 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 Du Page 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 Du Page 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.

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.

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.

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

•1 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 (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. Our review of a trial court’s order granting summary judgment is de nova. Largosa, 303 Ill. App. 3d at 753.

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Forest Preserve District v. Loren & Gisela Brown Family Trust
753 N.E.2d 1110 (Appellate Court of Illinois, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
753 N.E.2d 1110, 323 Ill. App. 3d 686, 257 Ill. Dec. 484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forest-preserve-district-v-loren-gisela-brown-family-trust-illappct-2001.