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Peo. Ex Rel. Vil. of Northbrook v. Highland Pk.

OPINION FILED JANUARY 19, 1976.

THE PEOPLE EX REL. VILLAGE OF NORTHBROOK, PLAINTIFF-APPELLEE,

v.

THE CITY OF HIGHLAND PARK, DEFENDANT-APPELLANT. — (NORTHBROOK COURT ASSOCIATES, INTERVENOR-RELATOR-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

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

This appeal is the culmination of long and bitter litigation between two thriving municipalities; Village of Northbrook (Northbrook) and City of Highland Park (Highland Park). Their legal battle rivals in intensity, although not quite in duration, the internecine strife among the ancient Greek city states. Northbrook Court Associates (Intervenor), owner of certain of the real estate here involved, has joined the fray by intervention. Northbrook commenced these proceedings by filing in the circuit court of Cook County, with leave obtained from that court, a complaint in quo warrantor, challenging the validity of a previous annexation by Highland Park of three parcels of real estate in Cook County abutting and directly south of Lake Cook Road. The trial court entered judgment of ouster against Highland Park, which appeals.

In this court, Highland Park contends that the annexations which it accomplished and which are here attacked were in accordance with all statutory requirements; the trial court erred in denying the motion of Highland Park to change the venue to another judge and the venue of this quo warrantor action is contrary to law because the suit should have been brought in Lake County. Northbrook contends that its own prior annexation of the property here involved was valid; the motion of Highland Park for change of venue to a different judge was untimely and therefore improper and the suit was properly commenced in Cook County. In a separate brief, the Intervenor contends that Highland Park failed to justify its annexation of the property and the previous annexation thereof by Northbrook was valid; the motion for change of venue to a different judge was properly denied and the suit was properly filed in Cook County. These contentions will be considered in the order stated by Highland Park.

All of the facts are virtually undisputed. Most of them appear from certified copies of recorded documents and ordinances. In fact, Highland Park did not call any witnesses and all of its evidence consisted of various documents.

The cause involves three parcels of real estate. All of these parcels are bounded on the north by Lake Cook Road. Two of them are contiguous and the third is farther to the east. The two parcels to the west are owned by the Intervenor. In this area, Lake Cook Road, a county highway running in an easterly and westerly direction, constitutes the boundary between Lake County on the north and Cook County on the south. Prior to the occurrences hereinafter related, Lake Cook Road formed the southern boundary of Highland Park and in some areas the northern boundary of Northbrook.

On April 20, 1964, Highland Park adopted and duly published an ordinance by which it annexed the south 33 feet of Lake Cook Road. Prior thereto the southern boundary of Highland Park included the north 33 feet of the highway. This annexation was completed by recordation of a certified copy of the ordinance, including a surveyor's plat, in the office of the Recorder of Deeds of Cook County, Illinois, on April 30, 1964.

On July 13, 1971, and on November 9, 1971, Northbrook adopted and duly published ordinances for annexation of all of the property herein; the two parcels owned by the Intervenor and the parcel to the east. Certified copies of these ordinances were recorded in Cook County on August 24, 1971, and on February 3, 1972. Each of the ordinances and notices which accomplished this annexation included the south 33 feet of Lake Cook Road previously annexed to Highland Park. This area is a strip on the northern border of all of the property here involved.

Thereafter, all of the subject property, which had been unincorporated prior to the annexation by Northbrook, was considered a part of Northbrook and Cook County for taxing purposes for 1972 and 1973. General taxes for those years were duly levied, extended and paid by and to the officials of Cook County. The property was also included as part of Northbrook by the Cook County clerk in providing for taxes to pay principal and interest on the bond issues for a public library building and a public safety building upon the property. Northbrook has provided fire and police protection for all of the real estate and has included this property in its zoning maps for 1972, 1973 and 1974.

Various steps were taken by the authorities of Northbrook for rezoning of a large parcel of real estate in the area, including all of the property involved in this cause. Highland Park had representatives present at certain of the public hearings held in Northbrook in connection with this rezoning. The Intervenor purchased a portion of the real estate after this had been accomplished. The Intervenor has spent approximately $9 million in acquisition of a large parcel of real estate which includes two of the parcels here involved. The Intervenor is now in the process of completing a large commercial development on this land which has an approximate valuation of from $20 million to $25 million. These improvements are constructed upon a portion of the real estate here involved.

By ordinances adopted on May 29, 1973, Highland Park annexed all of the real estate herein involved. This annexation was completed by publication and by recordation of the necessary ordinances and plats of survey in Cook County. It is agreed that these documents all included in their description of the annexed property the south 33 feet of Lake Cook Road which had theretofore been annexed to Highland Park in 1964 and to Northbrook in 1971. All of the publication notices were erroneous as regards one parcel of the real estate herein involved. These notices actually described a piece of real estate approximately one-half mile west of the property proposed to be annexed. The filing of these quo warrantor proceedings by Northbrook followed on June 12, 1973.

• 1 As a matter of law, in a quo warrantor action to test the validity of annexation by a municipality, the burden of proving validity of the purported annexation rests upon the defending municipality which has the burden of proving its title or additional facts upon which it relies to bar prosecution of the suit. People ex rel. Knaus v. Village of Hinsdale, 111 Ill. App.2d 368, 373, 374, 250 N.E.2d 309, leave to appeal denied, 42 Ill.2d 584.

Highland Park seeks to justify its position here by its own annexation steps taken in 1973. It has been held repeatedly that the exclusive method of attacking the validity of an annexation is by quo warrantor proceedings. (Village of Bridgeview v. City of Hickory Hills, 1 Ill. App.3d 931, 934, 274 N.E.2d 925, cert. denied, 407 U.S. 921, 32 L.Ed.2d 806, 92 S.Ct. 2460.) Thus, Highland Park's entire case depends upon the validity of its own subsequent annexation. It is the law of Illinois that a quo warrantor proceeding instituted more than one year after an annexation has become final is barred by the statute of limitations. Ill. Rev. Stat. 1973, ch. 24, par. 7-1-46; People ex rel. City of Burbank v. City of Chicago, 16 Ill. App.3d 184, 305 N.E.2d 656 (abstract opinion), leave to appeal denied, 55 Ill.2d 607, citing Flynn v. Stevenson, 4 Ill. App.3d 458, 281 N.E.2d 438, and People ex rel. Village of Lake Bluff v. City of North Chicago, 5 Ill. App.3d 142, 282 N.E.2d 780, cert. denied, 410 U.S. 955, 35 L.Ed.2d 688, 93 S.Ct. 1421.

Although the parties before us did not cite People ex rel. City of Des Plaines v. Village of Mt. Prospect, 29 Ill. App.3d 807, 331 N.E.2d 373, we find it necessary to consider that case. The facts are best stated in chronological order:

1. April 30, 1968 — complete annexation of the property by Des Plaines.

2. March 4, 1969 — Mt. Prospect approves ordinance for annexation of parts of the same territory.

3. April 3, 1969 — action in quo warrantor by Des Plaines attacking the Mt. Prospect annexation of March 4, 1969.

4. May 7, 1969 — answer by Mt. Prospect attacking the Des Plaines annexation of April 30, 1968.

This court held that the filing of the answer by Mt. Prospect, attacking the earlier Des Plaines annexation, was equivalent to the filing of a counterclaim in quo warrantor. The court also held that since the one-year period from the Des Plaines ordinance (April 30, 1968) had not expired when the quo warrantor complaint was filed on April 3, 1969, the answer was timely filed even after one year from the attacked annexation. (29 Ill. ...


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