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Peo. Ex Rel. Hanrahan v. Vil. of Wheeling

OPINION FILED SEPTEMBER 28, 1976.

THE PEOPLE EX REL. EDWARD

v.

HANRAHAN, STATE'S ATTORNEY OF COOK COUNTY, PLAINTIFF,

v.

THE VILLAGE OF WHEELING, DEFENDANT-APPELLEE. — (FREDERICK DARMSTADT ET AL., INTERVENORS-PLAINTIFFS-APPELLANTS; LA SALLE NATIONAL BANK, TRUSTEE, INTERVENOR-DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.

MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:

Rehearings denied November 12, 1976.

On 31 March 1971, 41 days after the recordation of the relevant annexation ordinance, the State's Attorney of Cook County, on behalf of the People of the State of Illinois, brought a complaint in quo warrantor which sought to declare void the annexation of a certain subject property to the Village of Wheeling (hereinafter Village) and to oust the Village from exercising jurisdiction over the subject property. The property was described as follows:

"The Northwest quarter of the Southwest quarter of Section 23, Township 42 North, Range 11 East of the Third Principal Meridian in Cook County, Illinois."

The property is owned by the La Salle National Bank (hereinafter Bank) as trustee for the sole beneficiary of Land Trust No. 38971, who is Arnold Leibling. The property consists of 40 acres of land which touched the then existing Village boundaries (prior to the said annexation) at only a single point located on the northeast corner of the subject property. Immediately east of the subject property and south and west of the Village boundary is property belonging in part to the Arlington Heights Township High School District No. 214. The Archdiocese of Chicago owns the land immediately north of the subject property and west of the Village boundary. A public thoroughfare, Wheeling Road, runs alongside the western boundary of the subject property for a distance of 1320 feet. This roadway meets the then existing limits of the Village only at the northern boundary of the Archdiocesan property. The following diagram is included for clarification:

• 1 A city or village has no power to extend its corporate limits except as authorized by statute. (People ex rel. Marre v. Countryside Sanitary District (1972), 5 Ill. App.3d 747, 284 N.E.2d 308.) The statute governing the instant voluntary annexation is section 7-1-8 of the Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 7-1-8), which provides as follows:

"Any territory which is not within the corporate limits of any municipality but which is contiguous to a municipality and which territory has no electors residing therein, or any such territory with electors residing therein, may be annexed to the municipality in the following manner: a written petition signed by the owners of record of all land within such territory, or if such territory is occupied, by the owners of record and by all electors residing therein, shall be filed with the municipal clerk. The petition shall request annexation and shall state that no electors reside therein (or that all such electors residing therein join in the petition, whichever shall be the case) and shall be under oath. The corporate authorities of the municipality to which annexation is sought shall then consider the question of the annexation of the described territory. A majority vote of the corporate authorities then holding office is required to annex. The vote shall be by `yeas' and `nays' entered on the legislative records. A copy of the ordinance annexing the territory together with an accurate map of the annexed territory shall be recorded with the recorder of deeds and filed with the County Clerk within the county wherever the annexed territory is located."

In its answer to the complaint in quo warrantor, the Village alleged compliance with the above-quoted voluntary annexation statute. It alleged that, on 12 January 1971, a petition submitted by the Bank, in its capacity as trustee, voluntarily to annex the subject property was filed with the Village Clerk. The petition averred that the subject property was vacant; that there were no electors residing therein; that the property was contiguous to the then existing Village corporate boundaries; that the petitioner desired to use the property for multifamily purposes as provided in an B-4 multifamily district of the Village Zoning Ordinances; that application for said zoning was being made simultaneously with the instant petition; and that petitioner, as trustee and not individually, was the sole owner of record of the subject property. The answer further alleged that the Village corporate authorities had, on 8 February 1971 by a vote of six "yeas" and no "nays", enacted an ordinance annexing the subject property. On 18 February 1971, a copy of the annexation ordinance, together with an accurate map of the annexed territory, had been recorded with the Recorder of Deeds of Cook County and filed with the Cook County Clerk. On 8 March 1971, the Village had adopted an ordinance zoning the subject property as R-4.

The answer filed by the Village also pleaded the affirmative defenses of laches, alleging that, in the 41-day interval between the recordation of the annexation ordinance and the filing of the instant quo warrantor action, the Village had incurred expense in extending certain services to the subject property.

On 16 June 1971, the Bank was granted leave to intervene as a party defendant. In its answer to the complaint in quo warrantor, the Bank alleged that it and its beneficiary, in reliance upon the annexation ordinance, had incurred substantial expenses in connection with the zoning hearings and with the installation of utilities on the subject property. The Bank further alleged that the Village had changed its position in reliance upon the annexation ordinance by supplying water, sanitary sewers, police and fire protection to the subject property.

Motions for summary judgment were filed both by the State's Attorney and by the Village. In an order dated 18 November 1971, then Circuit Court Judge Edward Egan denied the cross-motions for summary judgment. The order stated that, although the subject property was not contiguous to the Village as a matter of law, the remaining issue of laches involved a material question of fact which precluded entry of a summary judgment. A trial was set solely on the question of fact relating to the laches issue.

Several continuances were granted by the respective judges who presided over the case. On 8 July 1974, Judge Raymond K. Berg ordered the issue of contiguity taken under advisement and further ordered that evidence on the laches issue be submitted at a hearing set for the following week.

At that hearing, the following evidence was adduced from a filed stipulation of facts and from the testimony of Arnold Leibling, the sole beneficiary of the land trust. During the time interval between the recordation of the annexation ordinance and the filing of the instant quo warrantor action, Leibling had paid a land planner $750 for services rendered in connection with zoning hearings held by the Village. An engineering firm had also been retained by Leibling, at a cost of $1090.62, to prepare plans for the installation of sewer and water main extensions on the subject property and for the hookup to Village mains. These plans had been drawn prior to 31 March 1971, the date on which the complaint in quo warrantor had been filed by the State's Attorney. Because Leibling had no knowledge of the instant lawsuit until the first week of June of 1971, installation of the said sewer and water main extensions had begun on 5 May 1971 pursuant to permits issued by the Village. The cost of the said installation was $13,632.75, paid by Leibling. No evidence was presented at the hearing of any substantial actual expenditures by the Village in connection with the purported annexation; the affidavit of Paul Hamer (the Village Attorney of Wheeling), is conclusional in nature and does not demonstrate that a judgment of ouster would involve any substantial public detriment.

Judge Berg, on 16 July 1974, entered an order that judgment be granted in favor of defendants. The order contained two findings: (1) that, as a matter of law, the subject property is contiguous to the village; and (2) that plaintiff was guilty of laches in instituting the action.

On 13 August 1974, Frederick Darmstadt and Judith L. Fogerty (hereinafter intervenors-plaintiffs) filed a petition to intervene as parties plaintiff and a motion to vacate the judgment order of 16 July 1974. The intervenors-plaintiffs were then also petitioners in a separate proceeding to incorporate the city of Prospect Heights, which city, as proposed, would include the Archdiocesan and the School District property and would therefore surround the subject property on all four sides except for Wheeling Road itself and except for the single point at which the subject property touched the Village. The petition to intervene alleged three special interests of the intervenors-plaintiffs in the quo warrantor action which were described as greater than the interests of the general public. The first was that Fogerty is the owner and resident of land located within 500 feet of the subject property. The second was that both intervenors-plaintiffs would be residents of the proposed city of Prospect Heights. The third was that, as petitioners to incorporate the proposed city, intervenors-plaintiffs should be able to represent the proposed city, which city, had it been in existence, would have had standing to intervene.

Attached as an exhibit to the petition to intervene was a letter from the office of the State's Attorney of Cook County. This letter informed intervenors-plaintiffs of the decision of the said State's Attorney not to appeal Judge Berg's ruling, but expressed the desire that intervenors-plaintiffs intervene for the purpose of pursuing the said appeal. Also attached to the petition was a letter from the Attorney General of Illinois declining to intervene in the instant action, either at the trial or appellate level. *fn1

The trial court granted the petition to intervene but denied the motion to vacate the judgment. Intervenors-plaintiffs thereupon filed a notice of appeal from the judgment order and from the order denying the motion to vacate. The Bank filed a notice of cross-appeal from the order granting intervenors-plaintiffs' petition to intervene.

Subsequently, the Bank moved in the trial court for leave to file an amendment to the affidavit of Paul Hamer which had been previously filed in support of the Village's motion for summary judgment. The amended affidavit averred that the water mains extended to the subject property cannot be used other than on the subject property. The affidavit also recited a resolution of the Village, adopted on 3 December 1962, which prohibited the Village from supplying water to real estate outside of its own corporate limits. The trial court refused to permit the filing of the amended affidavit as additional evidence, but allowed it to be submitted as an offer of proof.

The Bank has moved in this court to dismiss the appeal of intervenors-plaintiffs owing to lack of standing. We ordered that motion to be taken with the appeal. The issue raised by the motion will be resolved in this opinion.

The following issues, therefore, are raised for our consideration:

(1) Do intervenors-plaintiffs have standing to intervene in the trial court for the purpose of ...


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