No. 2--00--0289

______________________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

______________________________________________________________________________

THE FOREST PRESERVE DISTRICT OF	)	Appeal from the Circuit Court

DU PAGE COUNTY,	)	of Du Page County.

	)

	Plaintiff-Appellant and	)	

	Cross-Appellee,	)

	)

v.	                )  No. 98--ED--17

	)

LOREN AND GISELA BROWN FAMILY	)

TRUST,	)

	)

	Defendant-Appellee and	)

	Cross-Appellant	)

	)

(Bruce Gordon, Dartmoor Homes 	)	

Acquisition Corporation, and	)	Honorable

Unknown Others,	)	Hollis L. Webster,

Defendants-Appellees).	)	Judge, Presiding. 

______________________________________________________________________________

	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.

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	MATERIAL REMOVED

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	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.

	nNonpublishable 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.

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	MATERIAL REMOVED

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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 (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 novo. Largosa, 303 Ill. App. 3d at 753.  

	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 (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 (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 (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).   	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 (2000); Forest Preserve District v. Estes, 222 Ill. App. 3d 167, 175 (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 empowered.  Forest Preserve District v. City of Chicago, 159 Ill. App. 3d 859, 861 (1987).  

	Section 6 of the Downstate Forest Preserve District Act (the Act) (70 ILCS 805/6 (West 1998)) grants the District the power to acquire land by purchase or

condemnation.  70 ILCS 805/6 (West 1998).  The Browns do not contend that section

6 vested in the District undue discretion to condemn land; rather, they assert

that the District, in enacting Ordinance No. 98--228, unlawfully delegated

legislative power to its staff.  Agreeing with the Browns, the trial court

declared that the language of the ordinance left "the decision to condemn up to

the executive director, his staff and the Forest Preserve District attorneys." 

Further, the ordinance failed "to set forth any specific directions or

limitations regarding the specific decision to condemn; therefore, legislative

power has been improperly delegated to the District’s staff."

	A law vesting discretionary power in an administrative officer must

properly define the terms under which the discretion is to be exercised.  In re Application for Judgment & Sale of Delinquent Properties for the Tax Year 1989, 167 Ill. 2d 161, 176 (1995).  Intelligible standards must be provided to guide

the officer in the  execution of the delegated power.  Hoogasian v. Regional Transportation Authority, 58 Ill. 2d 117, 130 (1974).  However, criteria so narrow as to govern every detail necessary in the execution of the delegated

power is not necessary.  See East St. Louis Federation of Teachers, Local 1220 v. East St. Louis School District No. 189 Financial Oversight Panel, 178 Ill. 2d 399, 423 (1997).  

	In construing the challenged ordinance, we set forth and apply the same

principles of construction that we would in construing a statute.  See Katz v. City of Chicago, 177 Ill. App. 3d 305, 310 (1988) ("the rules governing the construction and interpretation of statutes also apply to the construction of

ordinances").  Although mindful that an ordinance delegating the power of eminent

domain is to be strictly construed (Amann, 311 Ill. App. 3d at 712), we are as much aware that an ordinance is presumed valid and that the burden of

establishing invalidity rests upon those who challenge the ordinance (Village of Spring Grove v. Doss, 202 Ill. App. 3d 858, 863 (1990)).  Furthermore, statutes and ordinances should be construed in such a manner as to avoid doubts as to

their validity.  Triple A Services, Inc. v. Rice, 131 Ill. 2d 217, 227 (1989).  	The cardinal rule of statutory construction is to ascertain and effectuate

the intent of the legislature.  Lulay v. Lulay, 193 Ill. 2d 455, 466 (2000); Paris v. Feder, 179 Ill. 2d 173, 177 (1997).  The best evidence of legislative intent is the language employed in the statute itself, which must be given its

plain and ordinary meaning.  Lulay, 193 Ill. 2d at 466; Paris, 179 Ill. 2d at 177.  The statute should be construed as a whole, with each section  read in conjunction with every other section.  Lulay, 193 Ill. 2d at 466; Paris, 179 Ill. 2d at 177.  A court is not permitted to ignore the plain meaning of the statute by reading into it exceptions, limitations, or conditions that the legislature

did not express.  Lulay, 193 Ill. 2d at 466; Eagan v. Chicago Transit Authority, 158 Ill. 2d 527, 532 (1994).  Where the statutory language is clear and

unambiguous, a court must give it effect without resort to other aids of

construction.  Lulay, 193 Ill. 2d at 466; Paris, 179 Ill. 2d at 177.

	We see no ambiguity in the language of Ordinance No. 98--228.  In

construing the ordinance as a whole, we of course look to all sections of the

ordinance, including the section that references Ordinance No. 98--206.  Thus,

to read Ordinance No. 98--228 in its entirety, we in turn examine Ordinance No.

98--206.  We conclude that, although the District therein "authorized" its staff

to  negotiate with the Browns for the acquisition of their property, the District

clearly was directing its staff to negotiate.  The Browns do not suggest that the District formally decided that it was necessary to acquire the property,

proceeded to determine a fair price for the property, and then gave its staff the

choice of whether to negotiate.  Giving, as we must, the same meaning to the term

"authorize" in both ordinances (see In re Application for Tax Deed, 311 Ill. App. 3d 440, 444 (2000)), we read Ordinance No. 98--228 as directing the District's

staff to acquire the Brown's property either through negotiation or condemnation. 

	We also note the District's statement in Ordinance No. 98--206 that it had

determined what it viewed as a fair price for the Brown's property.  This of

course means, and the Browns do not dispute, that, throughout the course of the

negotiations authorized by Ordinance No. 98--206, there was an upper limit on the

price the District staff could offer for the property.  We further observe that

Ordinance No. 98--206 permitted the District's staff to entertain an offer by the

Browns to convey less than a fee simple interest and required the staff to submit

an evaluation of such an offer to the District's land acquisition committee. 

Lastly, we note that the acceptance of such an offer was conditioned on the approval of the District.  There is no dispute that these guidelines remained in

force during the continued negotiations authorized by Ordinance No. 98--228. 

	We emphasize that the failure of the Browns and the District staff to agree

upon a price for the property was expressed as a reason for the adoption of

Ordinance No. 98--228.  Significantly, while authorizing the use of condemnation

proceedings, Ordinance No. 98--228 did not order that negotiations cease between

the Browns and the District staff.  The Browns recognize that the "the District's

staff is always free to attempt to settle a condemnation case without litigation"

and that "[t]here is always an implied right to negotiate towards settlement." 

Indeed, had Ordinance No. 98--228 simply directed the District's staff to

institute condemnation proceedings, and, before the complaint was filed, had the

Browns contacted the staff with an acceptance of the last offer made by the

District's staff before the ordinance was passed, reading the ordinance as

requiring the staff to reject the acceptance and file a lawsuit simply because

the ordinance  directed it to file a condemnation complaint would be absurd. 

Statutes are to be construed in a manner that avoids absurd or unjust results. 

Croissant v. Joliet Park District, 141 Ill. 2d 449, 455 (1990).  In authorizing  negotiations with the added recourse of condemnation, Ordinance No. 98--228

merely makes explicit the implied authority to negotiate that the Browns concede

exists. 

	Although the Browns recognize that the District's staff is always

authorized to negotiate to seek the settlement of a condemnation suit without

litigation, they insist that Ordinance No. 98--228 is invalid because it leaves

to the staff the decision whether to condemn the Browns' property without further

negotiation, even though negotiations following the decision to condemn might

dispense with the need for adjudication.  We confess to having some difficulty

in grasping precisely the nature of the Browns' argument on this point.  At one point, the Browns argue that Ordinance No. 98--228 is invalid because it granted

the District's staff "the power to determine whether to negotiate a purchase of

the Brown's property or to file condemnation [sic] to acquire the property." (Emphasis added.)  At another point, they assert that the problem is that

"Ordinance 98--228 did not contain an unequivocal direction to condemn; it

contained a grant of discretion to decide whether to condemn the Brown property."  (Emphasis added.)  At yet another point, they maintain that the ordinance is

flawed because "elected officials that make up the District's Board of

Commissioners must make the determination that negotiations have failed and

direct condemnation," and "the District never made a definitive finding that it was necessary to acquire the property through the use of the condemnation power."  (Emphases added.)   

	The Browns confuse two vitally distinct claims: first, the claim that

Ordinance  No. 98--228 is invalid because it leaves to the District's staff the

decision to file condemnation proceedings against the Browns' property and,

second, the claim that the ordinance is invalid because it leaves to the

District's staff the political decision of whether the exercise of the power of

eminent domain against the Browns' property is appropriate.      

	Surely, the District could not permissibly have delegated to its staff the

sensitive policy decision of whether a particular parcel of property should be

seized under the power of eminent domain.  As we noted above, "[t]he 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, 119 Ill. at 149.  In our view, in adopting Ordinance No. 98--228, the District did not abdicate that crucial political role.  Ordinance No. 98--228 was

adopted expressly because the negotiations for the Browns' property had

theretofore failed.  The negotiations had failed, yet it remained "necessary and desirable" to acquire the Browns' property.  To the end of acquiring the

property, the District gave its staff an additional means of acquisition:

condemnation proceedings.  We do no violence to the plain language of the

ordinance in concluding that, in light of the failure of previous negotiations

and the continued necessity of acquiring the Browns' property, the District

authorized its staff to institute condemnation proceedings to acquire the

property.  We further decide, consistent with the language of the ordinance, that

the District would not have authorized condemnation proceedings had it not

concluded that it was politically appropriate to condemn the Browns' property--

or, in the words of the ordinance itself, that it was "necessary and desirable"

to acquire the Browns' property "for one or more of the purposes" set forth in

the ordinance.  By the time the District staff was given the power to institute

condemnation proceedings, the District had already determined the political

propriety of exercising the power of eminent domain against the Browns' property. 

	In giving its staff the additional recourse of condemnation proceedings,

the District did not empower it to decide the political issue of whether it was

appropriate to condemn the Browns' property, for the District itself had already

made that determination.  Granted, the staff was given the discretion of 

instituting condemnation proceedings immediately or negotiating further, but, as

we noted above and as conceded by the Browns, the option of negotiating would be

implied had the District simply ordered the staff to condemn.  The negotiating

discretion granted the staff by Ordinance No. 98--228 was not without bounds,

however.  In negotiating further with the Browns, the staff would be guided by

discrete parameters consisting of a maximum price it could offer as well as

specific requirements concerning the acceptance of an offer of less than a fee

simple conveyance.

	Ordinance No. 98--228 leaves no doubt of the District's steadfast intention

to acquire the property--through either negotiation or condemnation--and its

belief in the propriety of either means of acquisition.  We find the District's

staff was given appropriate guidelines to execute the directive to acquire the

property.  

	To say that the District staff could not properly be vested with the power

to determine the political propriety of exercising  the power of eminent domain

against a particular parcel of property is not to imply that it could not, under

any scenario, be given the discretion to decide when to institute condemnation

proceedings against a parcel of property that the District had already determined

could properly be seized under the power of eminent domain.  The Browns cite no

authority for the proposition that a governmental body that has been accorded the

condemnation power by statute cannot entrust to its staff the decision to

institute condemnation proceedings against a particular parcel of property  that

the condemning authority already determined could be seized under the power of

eminent domain, as long as the decision to institute such proceedings is bounded

by reasonably definite standards.  On the contrary, the Browns concede the

legitimacy of such a delegation.  They assert that "Ordinance 98--228 must

contain specific directions or limitations regarding the specific decision to

condemn in order to insure that this legislative power [of eminent domain] is not

being exercised by the District's staff and its attorneys."  At another point,

they complain that "[n]o guidelines were given on the face of Ordinance 98--228

to guide [the District's staff] in determining when attempts to purchase the

property through negotiations should end and condemnation should be filed."  We

are provided no reason to believe that a governmental body entrusted with the

power of eminent domain cannot strive for efficiency in its operations. 

"Government could not be carried on if nothing could be left to the judgment and discretion of administrative officers ***."  Block v. City of Chicago, 239 Ill. 251, 262 (1909).  

	The Browns claim that "[n]o guidelines were given on the face of Ordinance

No. 98--228 to guide [the District's staff] in determining when attempts to

purchase the property through negotiations should end and condemnation should be

filed."  We reject the claim.  We noted above that it is clear from the language

of Ordinance No. 98--206, referenced in Ordinance No. 98--228, that the

District's staff was given a maximum price to offer the Browns and was subject

to specific requirements concerning the acceptance of offers of less than a fee

simple conveyance.  The parties do not dispute that these restrictions also

applied to the authority to negotiate granted by Ordinance No. 98--228.  In our

view, these restrictions adequately curtailed the staff's discretion.  Moreover,

as explained above, we read Ordinance No. 98--228's authorization of the staff

to acquire the Browns' property either by negotiation or condemnation as a clear

directive to the staff to acquire the property.  Thus, if, in the exercise of its

curtailed negotiating discretion, the staff concluded that further negotiations

were futile, it had no option but to file a condemnation suit.

	The Browns offer no authority to persuade us that the restrictions on the

staff's discretion were inadequate.  The cases they cite all concern delegated

power that was not circumscribed by even general mandates.  In People ex rel. Healy v. Clean Street Co., 225 Ill. 470, 480-81 (1907), the court struck down a statutory provision authorizing city authorities to  "take such steps as they

might deem effective to prevent the casting of waste paper and other litter upon

the streets" because the city officials "were not even given general directions

as to the manner in which they were to exercise the power conferred upon them." 

	In City of Sullivan v. Cloe, 277 Ill. 56, 61-62 (1917), the court invalidated an ordinance imposing a fine for affixing anything to any permanent fixtures previously installed on city property without first obtaining the

permission of the mayor and the members of the city's street and alley committee. 

The court observed that the ordinance did not attempt to "specify the

circumstances and conditions under which such permission shall be granted and

prescribe the rules and regulations that are to guide the officers in granting

or refusing such permission."  City of Sullivan, 277 Ill. at 62.

	In City of Kankakee v. New York Central R.R. Co., 387 Ill. 109, 117 (1944), the court invalidated an ordinance authorizing a city's building inspector to

summarily abate as a nuisance the emission of dense smoke from any locomotive,

tar kettle, steam machine, open fire, smoke stack, or chimney of any building. 

The court reasoned that there was "nothing in the ordinance which indicates that

full discretion was not given to the building inspector."  City of Kankakee, 387 Ill. at 117.  

	In City of Chicago v. Pennsylvania R.R. Co., 41 Ill. 2d 245, 252 (1968), the court invalidated a statutory provision permitting city highway authorities

to create exceptions to a general statutory bar on the placement of advertising

signs on or over highways because the legislature failed to supply "any rules or standards to guide the exercise of [the highway authorities'] discretion" in

making exceptions.  (Emphasis in original.)

	In City of Watseka v. Blatt, 320 Ill. App. 191, 200 (1943), the court held that an ordinance subjecting the location and operation of a junkyard in any

industrial district to the approval of a board of zoning appeals was invalid in

part because it "specifie[d] no terms or conditions for such approval, but [left]

it to the caprice of the board of zoning appeals."  

	In contrast to the authorizing provisions in the above cases, Ordinance No.

98--228 circumscribed the discretion of those it empowered.  The District's staff

could only offer the Browns up to a certain amount of money before the staff was required to institute condemnation proceedings.  Also, in addition to the

requirement that all offers of less than a fee simple conveyance were to be

conveyed to the District's land acquisition committee, the District itself had

to approve the acceptance of such offers.  Obviously, the District did not

attempt to govern the fine mechanics of the negotiations in passing the

ordinance, but, as indicated above and as conceded by the Browns themselves, such

control was not required.  

	The Browns criticize as too broad the ordinance's authorization for the

District's staff "to take the necessary steps" to acquire the land.  However, the

Browns do not offer a suggestion as to what step(s) the District's staff might

have taken other than the enumerated steps of negotiation and condemnation.  We

cannot think of any and, therefore, cannot declare that phrase confers undue

discretion.  Instead, we conclude that the District's staff was guided by

intelligible standards imposed by the District--namely, an upper limit on the

price it could offer the Browns for the property and specific requirements

concerning the acceptance of offers of less than a fee simple conveyance--in

deciding when to institute condemnation proceedings.

	Mindful that the aim of statutory construction is to divine and effectuate

the intent of the legislature, we determine that the District's intent in passing

Ordinance No. 98--228 clearly was to acquire the Browns' property.  The

negotiations authorized by Ordinance No. 98--206 had failed, yet the District

continued to consider it necessary and desirable to acquire the Browns' property. 

Considering it appropriate to exercise the power of eminent domain to acquire the

property, the District empowered its staff to acquire the property either through

continued negotiations  within certain guidelines imposed by the District or

through condemnation proceedings.  Because we decide that the challenged ordinance did not vest the District's staff with the power to determine the political propriety of condemning the Browns' property, but merely authorized the

staff to effectuate an already approved condemnation action or to negotiate

further with the Browns within definite guidelines set by the District, we

conclude that Ordinance No. 98--228 did not improperly delegate the power of

eminent domain to the District's staff.  Therefore, the trial court erred as a

matter of law in granting the Browns’ motion for summary judgment on the traverse

and motion to dismiss.

	Nonpublishable material removed here

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

	MATERIAL REMOVED

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

	In the nonpublishable portion of this opinion, we affirmed the portions of

the Du Page County Circuit Court's judgment that (1) denied the District's motion

to disqualify the Browns' counsel and (2) granted the District's motion to strike

portions of the Browns' traverse and motion to dismiss. 

	For the reasons stated above, we reverse the judgment of the circuit court

of Du Page County as to the granting of summary judgment, and the cause is

remanded.

	Affirmed in part and reversed in part; cause remanded.

	GEIGER, J., concurs.

	JUSTICE RAPP, dissenting:

	I respectfully dissent.  This case concerns two of the most significant acts

of government, the taking of private property for public use and the expenditure

of large sums of the taxpayers' money to do so.  

	In dissenting from the majority, I agree with the decision of the trial

court that Ordinance No. 98--228 is invalid because it amounts to an improper

delegation of discretionary authority.  I disagree with the trial court's

conclusion that section 7--102 of the Code of Civil Procedure (735 ILCS 5/7--102

(West 1998)) when applied to nonresident property owners is constitutional.  The majority has affirmed the trial court on this issue in the unpublished portion of

its opinion.  Therefore, I disagree with the majority on both of these issues.

	Section 6 of the Downstate Forest Preserve District Act (the Act) grants the

District the power to acquire land by purchase or condemnation.  70 ILCS 805/6

(West 1998).  The power granted under the Act is vested in the District, not in

its staff or attorneys.  Ordinances passed by a department of government may, of

course, be enforced or carried into effect by staff, attorneys, or others

designated for that purpose.  See People ex rel. Healy v. Clean Street Co., 225 Ill. 470, 479 (1907); see also City of Sullivan v. Cloe, 277 Ill. 56, 59 (1917).  However, a department of government cannot delegate discretionary authority vested

in it by statute. Clean Street Co., 225 Ill. at 479; City of Sullivan, 277 Ill. at 59.  This is because departments of government are creatures of the legislature

and can exercise such powers, and only such powers, as are expressly conferred

upon them by the law of their creation, or such powers as are necessary to carry

into effect the powers expressly granted to them.  City of Sullivan, 277 Ill. at 59.

	The ordinance passed by the District delegated the uncontrolled discretion

to its staff and attorneys to decide not only when but also whether to acquire the Browns' property by negotiation or condemnation.  Contrary to what the majority

reports, the ordinance gave no guidelines or direction to the District staff and

attorneys.  The majority attempts to "bootstrap" its argument by incorporating

into Ordinance No. 98--228, by reference, Ordinance No. 98--206 and its clauses

and directions.  Ordinance 98--206 was the prior adoption of the District that

authorized staff and counsel to negotiate for the acquisition of the Browns'

property.  Ordinance No. 98--228, which authorizes but does not direct the filing

of a lawsuit to condemn, merely recites that the previous ordinance (No. 98--206)

was adopted to provide for negotiation.  Using Ordinance No. 98--206, the majority finds reasonably definite standards in Ordinance No. 98--228 and adds that "[t]he

parties do not dispute that these restrictions also applied to the authority to

negotiate granted by Ordinance No. 98--228."  Slip op. at 19.  This statement is

not supported by the briefs or arguments of the Browns.  They have steadfastly

argued that Ordinance No. 98--228 lacks any guidelines or reasonably definite

standards to direct the District's staff and counsel.  

	I believe that the power vested in the District by the Act involves the

exercise of judgment and discretion and is of such a character that it cannot be

delegated by it to others, to be arbitrarily exercised by them.  An ordinance

vesting discretionary power in an administrative officer, without properly

defining the terms under which discretion is to be exercised, is void as an

unlawful delegation of legislative authority.  See City of Kankakee v. New York Central R.R. Co., 387 Ill. 109, 117 (1944).  To be valid, the ordinance should specify the circumstances and conditions under which the staff or attorneys should

proceed with negotiation or condemnation and provide directions to guide the staff

or attorneys in proceeding with negotiation or condemnation.  See City of Sullivan, 277 Ill. at 59.

	I agree with the majority when it reflects on the reality that cases of this

nature are settled both before and after the actual filing of the eminent domain

proceedings.  I also acknowledge, as the majority did, that several governmental

bodies actively engaged in condemnation proceedings have filed amicus briefs wherein they basically support the District because the District's Ordinance No.

98--228 is in essentially the same format that they use.  They urge that they

cannot all be in error.  Yet they have not faced the argument presented in this

case. 

	There is another compelling factor that emphasizes the District's

responsibility to both its constituents (the taxpayers) and the owner of the property to be taken.  Section 7--123 of the Code of Civil Procedure (735 ILCS

5/7--123 (West 1998)) provides that the District will become responsible for the

payment of all costs, expenses, and reasonable attorney fees of the Browns if the

District is not successful in acquiring the property by condemnation.  See Village of Cary v. Trout Valley Ass'n, 297 Ill. App. 3d 63 (1998).  It is apparent, then, that deciding whether and when to condemn is a very important act on behalf of the

District.  Ordinance No. 98--228 allows staff and counsel to decide whether and

when they will expose the District to the additional liabilities encompassed in

section 7--123.

	Accordingly, I believe that Ordinance No. 98--228, authorizing the

District's staff and attorneys to acquire the Browns' land by "negotiation or

condemnation," is void as an unlawful delegation of discretionary authority.  I

further believe that such provision is an inseparable part of the ordinance and

of such character that the ordinance would not have been adopted but for such

provision.  See City of Sullivan, 277 Ill. at 63.  Because I believe that the ordinance underlying the condemnation action was void, I would hold that the trial

court did not err in granting summary judgment in favor of defendants.

	The majority has chosen, in its opinion, not to publish its decision to deny

the Browns' cross-appeal.  The Browns had filed a traverse and motion to dismiss,

asserting no bona fide attempt by the District to negotiate and agree upon just compensation, an improper and unnecessary purpose in taking, and a taking in

excess of the District's needs.  Dartmoor filed a similar traverse and motion to

dismiss.  The trial court had dismissed the allegations that the District did not

make a bona fide attempt to agree on just compensation.  The dismissal was based upon the statutory provision that has been interpreted to require the District to

negotiate in good faith, but makes no such requirement when the owner is incapable

of consenting, the owner's name or residence is unknown, or the owner is a nonresident of this state (735 ILCS 5/7--102 (West 1998)).  The Brown Family Trust

is not a resident of this state, and the Browns were denied the right to argue

that, because the Browns had previously entered into a contract for the sale of

the same property for $3.25 million, the District's offer of $1.22 million as just

compensation was not in good faith.  Evidence was not taken on the issue of the

propriety of the District's offer because the Browns, being nonresidents, were not

entitled to be dealt with in the same good faith as an Illinois resident. 

	I believe that section 7--102 of the Code of Civil Procedure is

unconstitutional because it denies equal protection to out-of-state owners of

Illinois property (U.S. Const., amend. XIV).  Requiring good faith only as to

Illinois residents is arbitrary and capricious as applied in the year 2000. 

Perhaps it was a necessity in 1894, when our means of communication and

transportation would have placed a real barrier in the early condemnation

proceedings before the advent of the 20th Century.  Today there is no conceivable

rational basis for such a distinction.  Consider the present practices in place

to contact owners.  Tax bills are mailed to the owner's residence, wherever that

might be, and not just to the location of the property. The availability of modern

methods to locate property owners is almost limitless.  The use of wireless and

land phone lines for conversation, facsimile transmission, and e-mail are present

and used every day by millions of people.  In my opinion, it is a violation of

equal protection, and the traverse for failure to make a "good faith" effort to

negotiate an agreement before filing such an action to condemn should have gone

to a hearing on the factual issues presented.