dissenting:
In Egidi v. Town of Libertyville (1989), 181 Ill. App. 3d 542, 537 N.E.2d 369, this court considered an issue quite similar to that present in this case: whether two parcels, each less than 50 acres but when added together equal more than 50 acres, separated by a 270-foot right-of-way could be acquired under the Township Open Space Act (Act) (Ill. Rev. Stat. 1987, ch. 139, par. 321 et seq.). We held that, because the separate areas of land purchased did not adjoin or abut each other, the two parcels cannot be considered “an area of land” within the statutory definition contained in section 2(b) of the Act. (Egidi, 181 Ill. App. 3d at 545, 537 N.E.2d at 372.) The majority’s attempt to distinguish factually Egidi from the case at bar is not convincing. The court in Egidi further determined that “[t]he fact that these parcels would be considered contiguous under certain provisions of the Illinois Municipal Code [citation] is of no relevance here,” a holding which is also not followed in the majority opinion. (See Egidi, 181 Ill. App. 3d at 545, 537 N.E.2d at 372.) While the majority cites a recent amendment to section 4.02 of the Act which sets forth that “contiguous” shall mean contiguous for purposes of annexation under article 7 of the Illinois Municipal Code, the amendment was neither in effect at the time of the commencement of this condemnation suit, nor is that definition applicable to section 2(b) of the Act, but is expressly limited to the purposes of section 4.02 of the Act. Accordingly, the Town of Libertyville failed to establish that it sought to acquire an area of 50 acres or more within the meaning of section 2(b), and the circuit court correctly dismissed the suit.
One final note. This court has heard appeals in a series of cases in which the Town of Libertyville has sought to acquire land under the Open Space Act (see, e.g., Town of Libertyville v. Ypma (1989), 181 Ill. App. 3d 305, 536 N.E.2d 1275; Town of Libertyville v. Blecka (1989), 180 Ill. App. 3d 677, 536 N.E.2d 1271; Herbes v. Graham (1989), 180 Ill. App. 3d 692, 536 N.E.2d 164; Town of Libertyville v. First National Bank (1988), 178 Ill. App. 3d 591, 533 N.E.2d 54), and our decisions have not always been consistent (compare Town of Libertyville v. First National Bank (1988), 178 Ill. App. 3d 591, 533 N.E.2d 54 with Town of Libertyville v. Blecka (1989), 180 Ill. App. 3d 677, 536 N.E.2d 1271), which is further illustrated by the majority decision in this case and the decision in Egidi. Perhaps the issues raised in these cases are ripe for resolution by our supreme court as, in all candor, the interpretation of the Open Space Act and its constitutionality should be reexamined.