No. 2--06--0676 Filed: 10-10-07

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ LEL AND STAHELI

N and JES VENTURES, ) Appeal f rom the Cir

cuit L.L .C., ) Co ur t o f D u P ag e C ou nt y. ) Plaintiff s-Appell ants, ) ) v. ) No. 05--MR--1426 ) THE FOREST PRESERVE DISTRICT ) OF DU PAGE COUNTY and MORTON ) ARBORET

UM, ) Honorab le ) Bonnie M. Wheaton, Defend ants-App ellees. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE BYRNE de livered

the opinion of the c ourt: Plaintiff s, Leland Stahelin and JES Ventures, L .L.C., are owners of a n 18-acre parcel of land bordered onthree sides by de fendant Morton Arboretum (Morton). Plaintiffs wish to develop the pr op er ty, and defe

ndant the Forest Preserv e Dis trict of D

u Page Co

unty (the Dist rict) wishes to preserve the property in its curr ent state, for the benefit of the public. Following negotiations to buy the subject

property, whic

h negotiations fell apart, and a suit for condemnation, which was dismissed by the Distr ict, plain tiffs bro ught this action a gainst d efenda nts, seek ing: ( 1 ) a findin

g of inve rse condemnation

and the issuance of a writ of mandamus to initiate condemnation proceedings; (2) a finding of a viola

tion of pla

intiffs' substantiv e due pro cess rig hts as a result of an alleged conspiracy between Morton and the District; (3) a de clarati on that ce rtain ordinances approved by

the District
were ultra vires acts; and (4) t he elimina

tion of the cloud on p laintiff

s' title t o the property. The

trialNo. 2--06--0676

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court grante d defend

ants' motions to dismiss the complaint pursuant to sections 2--615 and 2--619 of the Cod e of C ivil Procedure (735 ILCS 5/2--615, 2--619 (West 2006)). Plaintiffs appeal the dismissal of their complaint against defendants. We affir m. BACKGROUND The following fa

cts are taken from the allegations in plaintiffs' complaint and the attached documents. The 18-acre parcel of land owne d by plaintiffs is in unincorporated D u Pa ge Co un ty, 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 neg otiations with plaintiffs for the purchase of their land. Mortonpreviously had petitioned the District to consider condemning plaintiffs' land for the purpose of creatin g a for est pres erve. A ccordin

g to plai ntiffs'complain

t, in the pa st

Morton had attempted to purcha se the pr

operty from plai ntiffs. The Phase I ordinan ce provided that plaintiffs could retain a life estate in the land if they wished. T

he Phase I ordinance

set forth the public purpose and necessity for the acquisition. The ordinance provided

that "if negotia tions to ac quire the

subject propertie s throug h voluntar

y e fforts
are not successful, then the [District's] Director, staff, an d attorneys ar e directed to prepare an ordinance authoriz ing acquisit ion of the s ubject prop erty by condemnation." The ordinance further prov ided: "[I]f

the natur al flora and faun a of the s ubject pr operty is threat ened by demolition o r destructionduring good faith negotia tions, the Forest Preserve District Executive Director, staff , an d at to rn eys ar e a ut ho ri ze d t o t ak e a ll st ep s n ec es sa ry ( in cl ud in g t em po ra ry restrainin g order and/or prelimina ry injunction) to preserve the pr operty to the benefit of the publ ic in its cu rrent state. "No. 2--06--0676

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The good-faith negotiations did not result in agre em ent for acquisition of the land. On August 21, 200 1, t he D is tri ct e nac ted ano th er o rdi nan ce, No. 01- -01 7 (P has e II ordinance), authorizing acquisition of the property thro ugh ne gotiation or condemnation. The Phase II ordinance also set forth the public purpose and necessity for the acquisition of plaintiffs' land. Onthe same

date, the District filed a complaint for condemnation (Forest Preserve District of Du Page County

v. JES Ventur

es, L.L .C., No. 01--ED--84 (Cir. Ct. Du Page Co.)). The District filed a lis pendens as well. According to plaintiffs, law enforce ment officials entered

the prope rty and informed plaintiffs not to remove any trees from the land. OnSeptember 20, 2001, plaintiffs filed a traver se and mot

ion to dismiss the condemnation complain t. This filing challenged the public purpose for w hich the District

was condemning the land. The District c ontested

the conte ntions in the

traver se and mot

ion to dismis s. OnApril 20, 2004, the District voluntarily dismissed its condemnation action. I n addition, the District enacted a third ordinance, No. 04--113 (Abandonment ordinance ), which authorized the voluntary dismissal. The District board did not aba ndon the condemnation action because of lack of necessity for

condemnation, stat ing in th e Abandonment ord inance: "[A]lthoug

h the For est Preserve Dis trict continu es to believe the fee simple acquisition of the property is important and necessary for the furtherance of the purpose s set forth in this Ordinance, the [District] has determined that at this time, it is in the best inter est of the [District] to

abandon the acqu isition of t

he prope rty and dismiss the conde mnati on pro ceedin gs currently pe nding." The ordinance furthe r provides that "the abandonment

of the pr operty from ac quisition a s grant ed by this Ordinance sha

ll not cons titute
a finding that t he [District] does not 'need' this property , and the [District] hereby expressly statesNo. 2--06--0676

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that the acqui sition o f the property in the future would be important to furthering the statutory purposes of

the [Dist rict]." After the complaint for condemnation was filed on August 21 , 20 01, plaintiffs made no improveme

nt to the la

nd, such a s subdivision or deve lopment. " Fearin g" the purposes set forth in the Abandonment ordinance, plaintiff s reques t ed that the District delete that language from the Abandonment ordinance. The District refused to do so. Five months after the District voluntarily dismissed the con demna tion action, plaintiffs sought leave in the conde

mnation a ction to fi le claims

agains tthe District for declaratory relief, for lost use, and to quiet title. The trial court denied plaintiffs' motion. Thereafter, on November 21, 2005, plaint iffs filed the instant act ion, consi sting of four cou nts agains tthe District and Morton, seeking: (1) i nverse condemnation and the issuance of a wr it of mandamus to initiate condemnation proceedings (count I); (2) a finding that plaintiffs' substantive due process rights were violated as a r esult of an alleged conspiracy

between Morton and the District (count II ); (3) a d eclara tion that c erta i n ordinances approved by the District were ultra vires acts (count II I); and (4) an e limination of the cloud on plaintiffs' title to the property (count IV). Defend ants filed motions to dismiss pursuant to sections 2--615 and 2--619. In particular, Mortonsought dismissal of count II , pursuant to section 2--619(a)(9) (7 35 IL CS 5/ 2--619(a)(9) (West 2006)), on groun

ds that the

actions it took rela tive to the

District' s acquisi

tion of pla

intiffs' prope rty were privileged and protecte d under the first amendment right to petition and the Noerr
Pennington

doctrine. See Eastern R.R. Presidents Conference v. Noerr Motor Fr eight, Inc. , 365 U.S. 127, 5 L. E d. 2d 464, 8 1 S. Ct. 523 ( 1961); United Mine Workers v. Pennington , 381 U.S. 657, 14 L. Ed. 2d 626, 85 S. Ct. 1585 (1 965). Mor ton also arg ued , pu rsu ant to sec ti on 2 --6 15, th at c oun t IINo. 2--06--0676

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did not properly state a

claim for relief u nder sec tion 1983 of

the Civil Rig

hts Act of 1964 (42 U .S.C. §1983 (2000)), due to a failure to sufficiently allege a deprivation of proper ty rights or allege that Mortonacted under color of state law. Morton further argu ed that plaintiffs' claim should be dismissed f

or failur e to exhaus t state re

medies. The District sought

dismissal o f all cou

nts, pursuant to section 2--615, on grounds that: (1)
no ph ys ic al ta ki ng oc cu rr ed ; ( 2) pl ai nt if fs fa il ed to al le ge a d ep ri va ti on of th e u se of

th e p ro pe rt y; (3) plaintiffs failed to allege a deprivat ion of property r ights; (4) the disputed District ordinances
were facially va

lid; and (5) plaintiffs failed t o a llege t hat the or

dinance s gave

the Distr

ict a semblance of

ti tl e t o t he pr op er ty. The District sought dismissal pursuant to section 2--619(a)(9) on grounds that the D istric t's actions were protected by its first amendment right and the Noerr
Pennington

doctrine. Following briefing and a hearing , the trial court g ranted d efenda nts' motions to dismiss. The trial court dis mis s ed count I , stating : "I don't be lieve the

re could possibly be an inve

rse condemnation

where the use of the property is essentially unchanged; and at some future time, even thou gh there is a specter of condemnation in the future a nd as suchtime as the property is subject to ord in anc e, I think the strong presumption has to be that the p laintiff

s will be a

ppropria tely 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 unde r the first amendment right to petition. As to the District, the trial court stated: " There c annot be a conspira cy to commit a

n unlawf ul act whe

n one par ty i s certain ly within its rights to do exactly what it did ; and I

previous ly

found that Morton ArboretumNo. 2--06--0676

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was within its rights to pet ition the gov ernment . *** And I think the governme

ntal body *** is charged with the obligation to listen to its constituents." Indismissing

count II I, the trial cou

rt stated : "I

think it' s quite cle ar that the ordina nce is within the lawf ul parameters of

the statut e by a llowing t he [Distric

t] to desig nate par cels of property whichit believes [are] in the best inter est to be ta

rgete d or plac ed on a wi sh list or however y

ou want to describe it." As to count IV , the trial court said, "I be lieve that there has to be some color of title asserte d in order for

a quiet tit

le action to be vali dly

pled; and

here, there is no

assertion of title which could even remotely be constituted as a cloud upon the title." The trial court granted plaintiffs 21 days in which to file an a mended complaint. Plaintiffs did not file an amend ed compla

int. Base d on plaint

iffs' d ecision to stand on their complaint, the trial court entered final judgment and dismi ssed plaintiffs' complaint with prejudice. Plaintiffs filed a timely notice of appea

l. ANA LYSIS Onappeal, plaintiffs contend that the trial court

erred i n dismissing

their co mplaint ag ainst Mortonand the Distri ct. The legal theories differ for proceeding on a motion to dismiss under section2--615 and section 2--619. "A section 2--615 motion a t tacks the legal sufficiency of the complaint by a sserting

that it fails to st ate a cause of acti on upon whi ch relief can be gran ted." T&S Signs, Inc. v. Village

of Wadswo rth , 261 Ill. App. 3d 1080, 1083 (1994). "Under section 2--619, a party admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter whichavoids or de feats the clai m." T&S Sign s, Inc. , 261 Ill. App. 3d at 1083. Similar to a motion brought under section2--615, a

motion to dismiss under

section 2 --619 ad

mits all we ll-plead

ed fact s. Geick v. Kay , 236 I ll. App. 3d 868, 874 (1992). Whether the trial court has dismissed a complaintNo. 2--06--0676

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pursuant to section 2--615 or section 2--6 19, our standa rd of re view is de novo . Provenzale v. Forister , 318 Ill. App. 3d 869, 874 (2001). Mindful of the legal theories and the standar d of review, we turn to the contentions raised by plaintiffs under each count. Count I--I nverse Condemnation CountI of plaintiffs' complaint see ks inverse condemnation. Plaintiffs allege that the District' s enactment of the Phase I ordinance and the Abandonment ordinance resulted in a taking of plaintiff s' prop erty

without jus t compens ation. We f ind that pla

intiffs f ail to stat e a cause of action for inverse condemna

tion beca use neith er ordinance re sults in aco gn iz ab le "t ak in g" of th e p ro pe rt y. Aninverse condemnation act ion is a pr

oceedin g by a landow

ner ag ainst a re sponsible government

en ti ty to compel

t he institution of eminent domain proceedings where there ha s been
a taking without just compensation. Luperiniv. Co unty of Du Page , 265 Ill. App. 3d 84, 89 (1994). The takings clause of the fifth amendme nt p rovides that private property shall not "be taken for public use, withou t just comp ensation." U.S. Const., amend. V. The takings clause is made applica ble to the states through the fourteenth amendment. Chicago, Burlington & Quincy R.R. Co. v. Ch icago , 166 U.S. 226, 41 L. Ed. 979, 17 S. Ct. 581 (1897). "A governmental taking of private pr oper ty for p ublic use can occur in different way s." Forest Preserve District of Du Page County v. West Suburban Bank , 161 Ill. 2d 448, 456 (1994). One manner of taking occurs whe n there is an

actual phys ical inva sion by the gov ernment

onto an indi vidu al's property. Where there is even the slightest physical intrusion onto the property by

the gover nment, and despite any le gitimate public purpose, a taki ng requiring just compensation has occurred. Lucas v. South Carolina Coastal Council , 505 U.S. 1003, 1015, 120 L. Ed. 2d 798, 812, 112 S. Ct. 2886, 2893 (1992).No. 2--06--0676

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A second ma

nner of t aking property

occurs where governme

ntal regula

tion radic ally

curtails
a propert y ow ner's r ights such that

"all ec onomical ly b enefic ial or pro ductive u se of land" is denied. Lucas , 505 U.S. at 1015, 120 L. Ed. 2d at 813, 112 S. Ct. at 2893. Und

er this standar

d, only the most
severe gover

nmental r egulat ion amount s to a takin

g requ iring ju st compen sation. The Supreme Courthas recognized

that governmental regulation of priva te property ma

y, in some instances, be
so onerous that its effect is tantamount to a direct appropriation or ouster, a nd such "regulatory takings " may be compe

nsable under the fifth amendment. Pe nnsylvania Coal Co. v. Mahon , 260 U.S. 393, 415, 67 L. Ed. 322, 326, 43 S. Ct. 158, 160 (1922). Plaintiffs allege neither a direct g overnmental appropriation nor a physical invasion

of their pr op er ty. They

point to certain language in the ordinanc es and assert that it amounts to a regulatory taking of thei r property because it p laces "drastic limitat ions *** u pon the prop erty." Plaintiffs complain of the following section of the Phase I ordinance: "[I ]f the natur al flora and faun a of th e subject property is thre atened by de molition
or destruction during good faith neg otiations, t he [Di strict] Executive Director, staff, and at to rn eys are directed to take all steps necessar y (including te

mporary re straini ng orde r and/or preliminary injunc tion ) to pres erve the propert y to the bene fit of the

public in it s current stat e." Plaintiffs complain of the following sections of the Abandonment ordinance: "[A] ltho ugh the [District] cont inue s to believe the fee simple acquisition of the propert y is imp ortant and n ecessa ry for the f urthera nce of the purpose s set fort h in this Ordinance, the [Distri ct] has determined that at thi s time, it is i

nthe be st interest of the [District] to abandon the acq uisition of

the prope

rty and dismiss

th e condemna tionNo. 2--06--0676

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procee dings currently pe

nding. *** [T]he abandonment of the property f

rom acquisition as granted by this Ordinance, shall not constitute a finding that the [Distri ct] does no t 'need ' this pr op er ty, 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]." Pl aintif fs percei ve that th e ordina

nces prohibit them f

rom deve loping the proper ty a t its highest and best use without

facing condemnation proceeding s and losing title to the property; for ce themto maintain the status quo and refra in from an

y de velopmen t; freeze the use of

the prope rty to its existing use by render

ing any deve lopment impossible; and freeze the use of the property to that of one single-family

residence as opposed to an 18-acre residential subdivision. Although plaintiffs perceived and pled that the ordinances are drastic limitations, the interpretation of an ord inance i s
a question of law. See Haw thorne v. Village of Oly mpia Fields , 204 Ill. 2d 243, 252-53 (2003). Ac co rd in gl y, we need not accept as true pla

intiffs' subjectiv e descr

iption of the ordina

nces' effec ts uponthem. We ne ed deter mine only

whether the ordinances'

regula tion of pla

inti ffs' propert

y is tantamount to a direct appropriation or ouster. We first find that the Phase I ordinance is no longer operative. I t authorized good-f

ai th negotiations to be conducted prior to condemnation proceeding s and, by i t s own language, it was limited in sc ope to the period in which such negotiations were ong oing. The sentence authorizing the procurement of a preliminary injun ctio n or temporary

restraining order specifically limits that authorization to a situat

ion in which "the natural flora and fauna of the subject prope rty is threatene d by demolition or destruction during good faith negotiations
. " (Empha si s added. ) Good-f aith negotia tions ende d when the

District f iled a condemnati on suit.No. 2--06--0676

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Further, by ne ces sar y imp li cat io n, t he P has e I or di nan ce w as r epe ale d by t he P has e II ordinance, enacted August 21, 2001, and aga in by the Abandonment ordinanc e, enacted April 20, 2004. The Phase II

ordinance authorized the filing of the condemnation action and therefore ended the good-faith negotiation phase previously authorized. The Abandonment ordinance directed the Dist rict's a gent s to formally abandon a cquisition of plaintiffs' property . Because the District abandoned

all efforts to acquire plaintiff s' prop erty , includin

g good -faith negotiations, the Phase I ordinance that authorized an injunction "during good faith negotiations" was re ndered inoperative. See Provenzano v. City of Des Plaines , 256 Ill. App. 3d 458, 460 (1993) ("[g]ene rally, the effect of repeal of an ordinance is to eliminate that ordinance as if it had never be en en ac te d" ). Ac co rd in gl y, the Phase I ordinance doe s not give the District any standing

authorization to seek an

injunction

if plaintiffs choose to develop the land. A land-use regulation does not constitute a taking if it substantially adva nces legitima

te state interest s and does not deny a ny owner e conomically viable use of its land. National Advertising Co.
v. Village of Downers Grove , 204 Ill. Ap p. 3d 499, 512 (1990). Although the Abandonment ordinance is, strictly speaking, not the same as a legislative reg ulation, we will analyze it under the same standard for determining whether a taking has occurred. The Abandonment ordinance do es not amo unt to a re gulator

y ta king of p laintiff

s' pr op er ty. It does not give the District

any power

to regulate, limit, or control plaintiffs' ability to use their land. It doe s not have

any direct e ffect on plaintif

fs' abi lity to develo p their pr operty . The stat

ements in the ordinance that abandonment was not for lack of

necessity or that a

cquisition of the land in the future would

be impo rtant to f

urtherin g the sta tutory purposes of the Dis trict do not amount to anything the District can enforce aga inst plaintiffs. Despite their apparent apprehension about theNo. 2--06--0676

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language, the fact remains that the ordina nce provides

the Distr ict no enf orceme nt mecha nism to regula te plaintiffs' property
. Plaintiffs' present possible uses of their land simply are not affected by the Abandonment ordinance. In By ron Dra gway , Inc . v. County

of Ogle , 326 Ill. App. 3d

70 (2001), an ordinance restricted the plaintiff's racetrack

from operating during

the evenings and on weekends, when c onducting races
was most profitable. We held that this constituted a regulatory taking becau se, " [a ]lthough a part of a busines s licensing scheme, the ordinance ha s the pra ctical e ffect o f limiting

plaintiff 's use o f its property." Byron Dra gway , 326 Ill. App. 3d at 76. Unlike the Abandonment ordinanc e, which imposes no limitations on plaintiffs' use of their property , the cou nty in Byron Dragway could enforce a limitation on use by refusing to license the racetra ck. The Abandonment ordinance is similar to other regulations that courts have found n ot to effect regulatory

takings. For example, in Davis v. Brown , 221 Ill. 2d 435 (2006), the supreme cour t considered

whether section 4--510 of theIllinois Highway Code (605 IL CS 5/4--510 (West 2004)) constituted

a regulatory

taking. Section 4--510 authorizes the Illinois Depa rtment of Transportation (IDOT) to prepare and record maps that establish approximate locations of rights-of-way for future additions to the State highway system. Davis , 221 Ill. 2d at 438-39. The statute further prohibits any person who owns la

nd on whic

h a futur e right-of-wa

y is located from dev eloping

or improving his
or her land without

first giving 60 days' notice to IDOT. Davis , 221 Ill. 2d at 439. I DOT then has 45 days to inform the

landowne

r of I DOT's i ntention to

acquire the land t hrough purchas e or eminent domain procee dings. I

DOT then

has an ad

ditional 12 0-day

period e ither to pu

rchase the prope

rty ina voluntary tra

nsaction or to initiate eminent domain proceedings. I f the propert y is not acquired during this time, the landowner may proc eed with development without restriction. Howeve r, whileNo. 2--06--0676

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IDOT decides what to do with the property --a reservation period tha t may last up to 165 days--de velopment

may not be pursued by th e landow ner. The supreme court he ld that this

process did not constitut e a regulatory taking. Davis , 221 Ill. 2d at 447. Relevant to the present ca se, the supreme court noted that IDOT' s filing of a map indicating future rights-of-way

was not a regulatory takin g. Davis , 221 Ill. 2d at 448. L ike the map, the statements in the Abandonment ordinance are at most plann

ing in an ticipation of a poss ible futur e taking and do not

effec t a taking itself. Further, unlike section 4--510, the Abandonment ordinance does not require plaintiffs to provide the District with notice before developing or improving their land. It does not give the Di strict an y option to purchas e the lan

d or acqu ire it thr ough em inent doma

in proce edings. Likewise, in Groenings v. City of St. Charles , 215 Ill. App. 3d 295 (1991), the plaintiffs owned land that they wanted the City

of St. Charles to annex. St. Charles denied their petition and simultane ously

entered into a

boundary ag

reement with the Village of Way ne, where the plaintif

fs' propert y was situated. The plaintiffs sued St. Charles, alleging that St. Charles's conduct, including the boundary ag

reement, constituted a taking of the plaintiffs' pr operty by depri ving them of the
re as on ab le us e o f t he ir pr op er ty. We held that the boundary agreement did not constitute a taking because "the *** agreement af

fected only the

way plaintiffs hoped to incorporate their land, notits present possible uses." (Emphasis in original.) Groeni ngs , 215 Ill. App. 3d at 311. Similar to the boundary agreement in Groeni ngs , the Abandonment ordinance does not affect the present

possible uses of plaintiffs' property
. Furthe rmore, ge nerally

, "the a doption of

a resolu tion or the

enterin g into ne gotiations to acquire land does no t pass any interest in that lan d." Griffin v. City of Nor th Ch icago , 112 Ill. App. 3d 901, 905 (1983). "The fact that at some future time a municipal corporation, with power ofNo. 2--06--0676

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eminent domain, may require

the land of a private owner, is one of the conditions on which the
owner holds land in this State. Entering into negotiations for the purchase, and filing of a petition to condemn, ves ts no int erest in lan d." Eckhoff v. Fore st Preserv e District of Cook Cou nty , 377 I ll. 208, 214 (1941). Additionally, the " taking *** of land by eminent domain" is not accomplished by passing resolutions or ordinances or by neg otiating with the owner for the purchase of it or by servingnotice to the owner that land may be required for public purposes. Eckhoff , 377 Ill. at 214. Accordingly , we are not persuaded that count I states a taking cause of action. Count I I-- Constitution

al Depri vation of Property Rights Incount II , brought pursuant to section 1983, plaintiffs alleged that the District and Morton violated their substantiv e due pro cess rig hts by acting

together to use the District's power of e minent domain to deprive plaintiff

s of property rig

hts. The trial court found that Morton's action of petitioning the District was privileged under the first amendment and the Noerr
- Pennington doctrine right to petition and that there could not be a conspiracy to commit an unlawful act when Morton was within its right to petition

the Distr ic t and the District, a governmental body , is charged with the obligation

to listen to

its constit

uents. Pla

intiffs do not dispute

that Mo rton's a

lle ged action is gener ally entitled to protection under the first amendment and the Noerr
- Pen nington doctrine. Rather, they

argue that Morton's and

the Distr ict's c onspirat

orial conduct fa

lls within the very

narrow "sham" exception to Noerr
- Pennington immunity. T he Noerr
- Pennington

doctrine stems from Supreme

Court opini ons holding

that parties wh o petition the gov ernment

for gov ernment

al action favora ble to themselves cannot be sued under the Sherman Anti trus t Act (15 U.S.C. §1 et seq. (2000)), even though their actions are motivated by anticompetitive intent. Pennington , 381 U.S. at 670, 14 L. Ed. 2d at 636, 85 S. Ct. at 159 3. Thi sNo. 2--06--0676

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doctrine has been extended to section 1983 actions. See Tarpley v. K eistler , 188 F.3d

788, 794 ( 7th Cir. 1999). "This doctrine has [also] been extended to local governmental bodies to immunize them fr om suit." Village of La ke Barrington v. Hoga

n , 272 Ill. App. 3d 225, 236 (1995); see Monar c h Entertainment

Burea u, Inc. v. New

Jersey Highwa y A uthority , 7 15 F. Supp. 1290, 1301-03 (D.N.J.1989). Courts have carved out an exception to the doctrine, fo r " sh am " p et it io ni ng ac ti vi ty. Californ ia Motor Transport Co. v. Trucking Unlimited , 404 U.S. 508, 513, 30 L. Ed. 2d 642, 648, 92 S. Ct. 609, 61 3 (1972); Harrison v. Springdale Water & Sewer C omm'n , 780 F.2d 1422, 1428 (8th Cir.1986). T o constitute a "sham," the activity must be "objectively ba seless in the sense that no
reasona ble [petitio ner] cou ld realist ically expect succe ss on the m erits." Professi onal Rea l Estate Investors, I

nc. v. Columbia Pictures Industries, I nc. , 508 U.S. 49, 60, 123 L. Ed. 2d 611, 624, 113 S. Ct. 1920, 1928 (1993); see Hometown Properties, Inc. v. F leming , 680 A.2d 56, 60-61 (R.I. 1996). The shamexception applies only when a de fendant petitions the government with no realisti c expectationof a favorable result, but me rely to forc e expense and delay on the other party . An example is the filing of a f

riv olous objection to a competitor's license application, with no expectationof achie

ving de nial of the license but simply

to impose expense and delay. See City of Columbia v. Omn i Out door A dvert isin g, Inc. , 49 9 U. S. 365 , 38 0, 1 13 L. Ed. 2d 382, 398, 111 S. C t. 1344, 1354 (1991). We find the sham excep tion inapp licable here. Plaintiffs alleged that Morton petitioned the District to acquire the subject property for the private benefit of Morton and to tra nsfer th e proper

ty to Morton for management after acquisition was accomplished; that Morton suggested to the District that it use its c ondemnat

ion power

to have Morton undertake possession and management; that Mortonmet

with repr esentat ives of th e District to discuss having the District use its condemnation power with the in

tent that t he Distri ct would u

ltimately have the propert y transfe rred toMorton; andNo. 2--06--0676

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that the purpose of

the condemnation action

was to have the subject property turned over to Morton. Plaintiffs assert that the complaint for condemnation was ultimately filed by the District at the ur ging of Morton and for

Morton' s benefit and that it ultimately serve d Morton's goal of stalling and preventingthe propo sed deve lopment of the subje ct prope

rty . Moreove

r, plainti ffs as sert that the voluntary dismissal o f the s uit serve s as evide nce that neither Morton nor

the Distr ict ever truly desired to physically

acquire the subjec t prope rty but that they conspired to forever preclude development of the property and to harm and harass plaintiffs by forcing them to sel l the prop erty to the District or by destroy ing the developmental potential of the property
. Plaintiff s' claim ag ainst

Mortonalleges the ty

pe of governmental petitioning that is protected by the Noerr
- Pennington

doctrine . Plaintiff

s' clai m that Morton petitioned the District to take action either to acquire the pro pe rt y f or Morton

or to pre clude de

velopmen t of the pr

operty is simply another way of describing an attempt by

Mortonto preserve open space, which nec essarily involves preventingdevelopment. Mort on's re quest tha

t the Distr

ict exerc ise emine

nt d omai n against the prop erty was not " objectiv ely

baseles s." I

t was Mort

on's rig ht to petiti on the Dist

rict to exe

rcis e eminent domain. It was the District's rig ht to listen to Morton' s petition, as it is wi thin the Di stri ct's statutory authority to exercise eminent domain (se e 70 IL CS 805/5 (West 2006) ). These actions certainly do not constitute a sha m. Moreover, plaintiffs did not, and cannot, allege that the District's condemnation proceeding
was "objectively

baseless," because, asplaintiffs acknowledge: the District has "powe rs of eminent domain to acquire involuntarily re al estate within Du P ag e C ou nt y f or forest preserve purposes." Thu s, t he District had a realistic expectation of succeeding in its condemnation action, thereby rendering the "sham" exception

inapplicable. Because of the District' s statutor

y r ight to c ondemn pr op er ty, there was substantial likelihood of the District s ucceed ing on the

merits in it sNo. 2--06--0676

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condemnation

action. Thus, Morton was protected by the Noerr
- Pennington doctrine to petition the District, and the doctrine reciprocally protects the District, which had a right to act on the petition of its constituent. We find that count II was properly

dismissed. Count III
-- Ultra Vires Acts Plaintiffs next contend that the Phase I ordinance a nd the Abandonment ordinance are ultra vires acts, beyo nd the sco pe of pow ers expre ssly

grante d to the Dis trict in th e Downsta te Fore st Preserve District Act (Act) (70 IL CS 805/0.001 et seq. (West 2006)). The trial court dismissed count III, finding that the ordinances are within the lawful parameters of the statute. Plaintiffs arg ue that the ordinances are ultra vires because the Act does not conspicuously g rant forest preserve

districts p ower to seek precondemnation injunctions or to state in abandonment ordinances that abandonmen t is not for lack of necessity and that acquisition is important in the future. Section3(a) of the Act provides that t he affa irs of a d istrict sh all be managed by a board of commissioners. 70 IL

CS 805/3(a) (West 2006). "The board shall be the corporate a uthority of such forest preserve district

and shall have power to pass and enforce a ll necessary

ordinances, rules and regulations for the ma

nageme nt of the property

and cond uct of the business o f such di strict." 70 IL CS 805/8(a) (West 2006). The court in Houston v. Village of May wood , 11 Ill. App. 2d 433, 437-38 (1956), interprete d section8(a) as a broad provision that necessarily implies that the board is vested with the discretion to determine what course of action will achieve the most successful and efficient mana gement of the district' s proper

ty. Becau se "manageme

nt of the d

istrict' s proper

ty" is one of t

he powers vested i

n
a forest preserv e district's boar d of commis sioners, it logically follows that the interpretation applied by Houston should be t

rue of th e other p owers ve sted in the board. T

hus, sect ion 8(a)also
necessa rily implies that the board is vested with the discretion to determine what cours e of actionNo. 2--06--0676

-17-

will most successfully and efficiently c onduct the business of the district. We agree with the District that its board of commiss ioners wa s proper ly e xercising its discre tion in con

ducti ng the Dist rict's business when it enacted the Abandonment ordinance and the Phase I ordinance. Alth ough statutes gran ting powers t o forest pres erve distri cts are strict ly construed, "a power may be implied

even thou

gh it is no t absolute ly in

dispensa ble to th e effective ex ercise of those powers exp ressly granted." Houston , 11 Ill. App. 2d at 437. If a particu lar course of con

duct will help achieve the purposes of a fores t preser

ve distric t by aiding i n the conduct of the business of the district, and will not be inconsistent with any of the provisions of the Ac t, "then such course of conduct cannot be said to b e outside t he implied powers of the district board." Houston , 11 Ill. App. 2d at 438. Here, the Distr

ict's e nactmen t of neith er the Abandonment ordinance nor the Phase I ordinance was outside the bro ad grant of implied powers vested with the District's boa rd, and therefore neither

was ultra vires . The board decided that it cou

ld most success fully

and eff iciently conduct the business of the D is trict by including in the Aba ndonment ordinance a statement that abandonment

was not for lack of necessity and that acquisition of the land in the future would be importantto furthering the statutory purposes of the District. This decisionis not inconsistent with any provision of the Act, and the Act does not prohibit such a statement . Moreov er, it is w ell established

that a board of commissioners has the power to deci de whether it is "necessary " that certain land be taken

for forest preserve

district purposes. See, e.g. , Goldman v. Moore , 35 Ill. 2d 450, 453 (1966). A district has the power to abandon a condemnation action for re asons other than lack of necessity f

or the taking. See Department of Transportation v. Veach Oil Co. , 22 Ill. App. 3d 229, 231 (1974). Furthermore, a board of commiss ioners ha s the powe r to deci de to initiate a new condemnation

actioneven though a previous condemnation action had be en dismissed. See ForestNo. 2--06--0676

-18-

Preserve District of Will County v. Vanderlaan , 226 Ill. App. 3d 692, 695 (1992). Thus, where the Dist rict's board of commissioners decided to abandon the condemnation action for a reason other thanlack of necessity , it was not unreasonable for the boar d to state so in the Abandonment ordinance. Nor was it unreasonable for the board to state that it is reserving the power tha t it has under the Act to po ssibly

acquir e the property

in the future. See People ex rel. Kucharski v. McGovern , 42 Ill. 2d 119, 127-28 (1969) ( "[l] ong- range planning is a nece ssary aspe ct of proper overall development of forested

lands"). Accordingly , we find that count II I was properly

dismissed. Count I V--Quie t Title Count IV of plaintiffs' complaint sought to quiet title to plaintiffs land. The trial cour t dismissedcount IV, finding that " there was no assertion of title which cou ld even remotely be constituted

as a cloud upon the title." Nevertheless, plaintiffs assert that the Phase I ordinance and the Abandonment ordinance constitute "an ass ertion of

title by t he [Distric

t] to owner ship of some rights over t he property and are suffi cient to ser ve as a semblan ce of title t o the propert y." Anac ti on to qu ie t t it le in pr op er ty i s an equitab le proce eding in which a p arty

seeks to
remove a cloud on his title to the property. Illinois District of American Turners, I nc. v. Rieger , 329 Ill. App. 3d 1063, 1071 (2002). To constitute a cloud, there must be a s emblanc e of title that is, in fact, unfounde d and ca sts a doubt upon the v alidity

of th e record title. Rieger , 329 Ill. App. 3d at 1072. "[A] quiettitle action does not lie where the defendant has not made a n adverse claim to an interest i n the plain tiff's propert y." Rieger , 329 Ill. App. 3d at 1072. Plaintiffs do not allege that either the Phase I ordinance or the Abandon ment o rdinance purports to give the District a semblance of title that casts doubt upon the validity of the ir recor d title. Nor do pla

intiffs a llege t hat the Di strict ha s made an adverse claim to a

n inte rest in their pr op er ty. The Phase I ordinance is inoperative and cannot constitute a semblance of title or a nNo. 2--06--0676

-19-

adverse claim. The Abandonment ordinance does not assert that the District has any right or claim to the prope

rty . As t he District points out, if plaintiffs would obtain the proper permits, plaintiffs could begin bulldozing trees on their property at any time and the D istrictwould be powerless to stop thembased on

either of the ordinances. Neither ordinance has the lega l effect that plaintiffs ascribe to it, i nclud ing con stit utin g a se mb la nc e o f t it le or an ad ve rs e c la im to pl ai nt if fs ' p ro pe rt y. We agree with the trial court and find that count IV wa s properly dismissed. For the foregoing

reasons, the judgment of

the circuit court of Du Page County is affirmed. Affirmed. HUTCHINSON and GI

LLERAN JOHNSON, JJ., concur.