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Continental Ill. Nat. Bank v. Vil. of Park Forest

MARCH 16, 1972.

CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS TRUSTEE UNDER SEVERAL TRUST AGREEMENTS, ET AL., PLAINTIFFS-APPELLANTS,

v.

THE VILLAGE OF PARK FOREST, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Will County; the Hon. ROBERT J. IMMEL, Judge, presiding.

MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 17, 1972.

Plaintiffs in this action, suing as taxpayers, water users and bond holders, filed a complaint (in 8 counts) asking for a declaratory judgment and ancillary injunctive relief. The complaint asserts that an agree-between the defendant Village of Park Forest and Desa Industries was invalid, and also sought a declaratory judgment that defendant Village of Park Forest had not properly complied with enabling legislation enacted by the Illinois General Assembly with respect to a contemplated sewer extension outside its municipal boundaries. Plaintiffs requested that defendant Village be permanently enjoined from proceeding with the project. The Circuit Court dismissed all of the counts of the complaint, pursuant to motion of the defendant, with the exception of Count III. Following a bench trial on the merits of Count III, the trial court entered judgment thereon for defendant.

On appeal in this Court, plaintiffs contend that the Circuit Court erred in dismissing Counts I, II, IV and V of the complaint and likewise erred in entering judgment for defendant as to Count III. No issues are raised as to the court's action on the remaining counts and it will not be necessary that we discuss such counts in this opinion.

It is apparent from the record that defendant Village of Park Forest entered into a contract with Desa Industries, Inc., a corporation, which owned a tract of and about one-half mile south of defendant's corporate limits. The contract provided that defendant would extend its sanitary sewer to the Desa Industries' tract and that the industry would pay for the sewer service substantially in the same manner or amount as other taxpayers within the defendant's corporate limits were taxed for such service. The agreement also specified that Desa Industries would not petition or agree or permit the annexation of the tract involved to any other municipal corporation without first petitioning for annexation to defendant Village of Park Forest. The Village trustees on October 14, 1969, unanimously authorized the defendant Village to enter into the agreement and so ratified such agreement.

The complaint of plaintiff was filed in the Circuit Court on December 17, 1969. After the filing of the complaint, in furtherance of the intention of the Village to provide the industry tract with sanitary sewer facilities, construction and maintenance easements were obtained from record owners of the real estate through which the proposed facility was to be built. In three of such easements the grantors were given a unilateral right to tap into the sewer facility at such time as it was constructed but subject to the provisions of relevant local ordinances. A petition for service was received from Barbara Z. Slaney. Such petition for service together with the agreement from Desa Industries involved the only requests or petitions for sewer service which were sought to be introduced before the trial court prior to the time when the taking of evidence was originally closed in the trial court. On motion of defendant, however, and over objection of plaintiffs, the case was subsequently reopened for the purpose of admitting evidence of certain additional petitions for service which had been obtained after the hearings had been closed.

Defendant Village enacted its Ordinance No. 792 on December 2, 1970, which provided for an extension of a sanitary sewer system along a specified route beyond its corporate limits (along Western Avenue from a point where Western Avenue intersects the corporate limits of the Village on the south, southward to Norfolk Road). Thereafter, on December 28, 1970, defendant enacted Ordinance No. 794 which specified the legal description of the Desa Industries tract and another tract of real estate outside the corporate limits of the Village which was owned by Barbara Z. Slaney, as the area to be served outside the corporate limits by the contemplated sewer extension. The ordinance recited that defendant Village had received petitions from these two property owners requesting sewer service. (It appears from the record that defendant Village regarded the agreement with Desa Industries as that corporation's petition for service. The petition for service of Barbara Z. Slaney had been obtained on February 17, 1970.)

At the trial, testimoney was presented with respect to the feasibility of the project (from an economic and ecological standpoint), the construction costs, and the areas which could be served by the extension given its contemplated physical capacity. It appears from such evidence that a much larger area could be served by the proposed extended sewer facilities than that actually specified in Ordinance No. 794. Since the stay order preserving the status quo pendente lite had been granted by the trial court pending disposition of this cause on appeal, defendant has not yet commenced construction of the sewer facilities referred to outside the corporate limits.

In support of Count III of the complaint, plaintiffs initially contend that defendant had not at the time of the trial, or to date complied with the enabling legislation permitting municipalities to extend and maintain sewer facilities outside their geographical corporate limits. The statute involved (in its relevant part) is as follows:

"The corporate authorities of a municipality may provide by ordinance for the extension and maintenance of municipal sewers * * * in specified areas outside the corporate limits. Such service shall not be extended, however, unless a majority of the owners of record of the real property in the specified area petition the corporate authorities for the service." (1969 Illinois Revised Statutes, ch. 24 par. 11-149-1).

• 1 Since Ordinance No. 792 enacted on December 2, 1970, merely establishes the route of the contemplated sewer extension, and since the resolution of October 14, 1969, merely ratified the agreement with Desa Industries, there was no specific compliance with the statute prior to the enactment of Ordinance No. 794. Ordinance No. 794, however, specifies certain areas to be served outside the corporate limits (viz., the Desa Industries property and that owned by Barbara Z. Slaney) and such ordinance likewise recites that petitions for service had been obtained prior thereto from those property owners. As we have observed previously, it was shown that a petition for service had been obtained from Barbara Z. Slaney and we also conclude that the agreement between defendant and Desa Industries amounted to a petition for service by Desa Industries and would suffice for such purpose. It, therefore, appears that defendant Village had duly complied with enabling legislation requiring the specification of the areas to be served and the aquisition of the petitions for service from a majority of the owners of record in the specified area.

• 2 Plaintiffs maintain that Desa Industries and Slaney properties only comprise a small fraction of the area which can be served by the sewer facilities of the capacity contemplated, and that defendant had already agreed to service a larger area than that area specified in Ordinance No. 794 by virtue of the Village having permitted certain grantors of construction and maintenance easements and others to tap into the sewer line when the same is constructed. We do not believe that this argument is sound. In our judgment the enabling legislation permits the corporate authorities to exercise legislative discretion to determine, in the judgment of such authorities, the area to be served by the extended facilities. Under the General Assembly Act, it is only after such discretionary determination is made publicly, through enactment of an ordinance, that the authorities are required to obtain petitions for service from a majority of the owners of record of the area specified by the corporate authorities and then only before such service is actually extended. There is nothing to prevent the corporate authorities who are thus vested with a substantial discretion, to determine the means of accomplishing the objective in extending sewer facilities to specified areas. With respect to the capacity of the contemplated facilities, it is apparent that the municipality clearly has a right to determine the means of accomplishing the objective in extending its service facilities to specified areas. Any other conclusion would subject the municipality to limitations by adversary proceedings so as to thwart the exercise of its discretion in an area where the Illinois General Assembly has, in our judgment, granted municipalities plenary power. The Act, we believe, was to give citizens of municipalities public notice of the intentions of the governing bodies, and, also, to prevent a municipality from physically extending sewer facilities beyond its corporate boundaries where such facilities are not desired by a majority of those owning real estate in the area specified by the municipal authorities. It is apparent that the General Assembly recognized the need for vesting municipalities with the power to extend sewer facilities beyond the municipal boundaries. The broad discretion granted municipal authorities was a practical recognition of the need for efficient planning in light of increasing suburban and industrial development and growth and of the need for sewage disposal in a most efficient and effective manner. Both economic and ecological considerations clearly motivated the broad grant of authority to extend sewer facilities, limited only by the need to obtain the assent of a majority of real estate owners in the area to be served. Apprehensions expressed by plaintiffs we do not believe are realistic, particularly in view of the fact that corporate authorities are always, sooner or later, made subject to the wishes of the electorate. We read nothing in the Act which would give individuals or groups of taxpayers a power to limit the exercise of municipal legislative discretion in expanding sewer facilities in compliance with the Act.

• 3 We, therefore, conclude that by enacting Ordinance No. 794 and by obtaining petitions for service from all of the owners of the real estate specified in the Ordinance, defendant Village of Park Forest has complied adequately with the mandate of the enabling legislation involved. The circumstance that it granted unilateral "tap-in" rights to certain others along the route of the new facility from whom construction and maintenance easements had been obtained, would not affect our determination since Ordinance No. 794 was obviously not enacted with their properties in mind. The legislative determination was made to serve Desa Industries and the Slaney properties with sewer facilities, and any other agreements made with other owners along the line of the facility were necessarily incidental to and in support of that objective.

• 4 Since we have determined that defendant's Ordinance No. 794 complied with the requirements of the enabling legislation, it would not have been necessary to deal with plaintiffs' contention that the trial court abused its discretion in allowing reopening of proof to receive additional evidence on behalf of defendant. We should observe, however, that the opening of the case for the purpose of introducing further evidence obviously ...


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