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 The majority has affirmed the trial court on this issue in the unpublished portion of its opinion.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.” 323 Ill. App. 3d at 696. 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.