APPEAL from the Circuit Court of Cook County; the Hon. HARRY
G. COMERFORD, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Mr. PRESIDING JUSTICE DOWNING delivered the opinion of the court:
The appellee, North Maine Fire Protection District (hereinafter "District"), filed a petition under section 20 of "An Act in relation to fire protection districts" (Ill. Rev. Stat. 1971, ch. 127 1/2, par. 38.3), seeking to prevent the automatic disconnection of certain of its territory (hereinafter called "Ballard Gardens"), which had been annexed by the City of Park Ridge. The appellants are the City of Park Ridge and the property owners of the disputed Ballard Gardens area. Following a hearing on the petition, the court below entered an order granting the petition and finding that the automatic disconnection of Ballard Gardens from the District would not materially impair the District's ability to render fully adequate fire protection services, but that it would cause a portion of the District's territory to become noncontiguous with the remainder. The appellants appeal from the trial court's finding with respect to contiguity. The District has filed a cross appeal from the trial court's findings with respect to material impairment.
On October 2, 1972, the City of Park Ridge annexed an unincorporated area known as Ballard Gardens (area "C" on the following diagram). *fn1 Previous to the annexation, Ballard Gardens was located within the boundaries of the North Maine Fire Protection District. Under section 20 of "An Act in relation to fire protection districts" (Ill. Rev. Stat. 1971, ch. 127 1/2, par. 38.3), the Ballard Gardens area would have become automatically disconnected from the fire protection district on January 1, 1973, unless a petition to prevent such automatic disconnection was filed by the District within 60 days after the annexation.
The District did file such a petition within the 60-day limit, alleging both that the disconnection of Ballard Gardens would materially impair its ability to provide fully adequate fire protection to the area remaining, and that it would cause a parcel of property within the District to become noncontiguous with the remainder. The following is a rough diagram of so much of the area pertinent to this case:
On February 5, 1973, Park Ridge annexed another portion of the fire protection district (area "B") which would become disconnected on January 1, 1974, unless the District filed an objection by way of a petition within the 60-day statutory period. No petition having been filed, area "B" was automatically disconnected from the District on January 1, 1974.
The hearing on the District's petition to prevent automatic disconnection of Ballard Gardens began on December 26, 1973. A final order was not entered by the trial court until December 30, 1975.
• 1 The basis for the appellants' argument is that by the date of the hearing on the District's petition, the tract of land (area "B") which would have made the District noncontiguous had been annexed by the city and had already become automatically disconnected from the District. The appellants contend that the trial court, in considering the issue of contiguity, must assess the facts as they exist on the date of the hearing and final order. We agree. Section 20 of "An Act in relation to fire protection districts" provides, in relevant part:
"Any territory within a fire protection district that is * * * annexed to a city * * * that provides fire protection for property within such city * * * is, by operation of law, disconnected from the fire protection district as of January first after such territory is annexed to the city, * * *. Such disconnection by operation of law does not occur if, within sixty days after such annexation * * * the fire protection district files with the appropriate court a petition alleging that such disconnection will cause the territory remaining in the district to be noncontiguous or that the loss of assessed valuation by reason of such disconnection will impair the ability of the district to render fully adequate fire protection service to the territory remaining with the district. When such a petition is filed, the court shall set it for hearing, * * *. At such hearing, the district has the burden of proving the truth of the allegations in its petition. * * *" (Emphasis added.)
In Winfield Fire Protection District v. City of Wheaton (2d Dist. 1975), 29 Ill. App.3d 630, 332 N.E.2d 43, the Second District of this court interpreted the aforesaid section to require that questions of contiguity and impairment must be based on facts existing at the time of hearing and final disposition. The Winfield District had filed a petition under section 20 in July of 1965, objecting to the automatic disconnection of certain of its territory annexed by the City of Wheaton on grounds that the disconnection would result in noncontiguity of certain geographical areas and would impair its ability to render fully adequate fire protection to the remainder of the district. A hearing was not held on the petition until July of 1973. In the interval, other areas of the District were annexed by the city. The District filed objections to the automatic disconnection of some, but not all, of these areas. When the hearing on the petition was held in 1973, the court consolidated the hearing on the original petition with those filed in the interval, and found that the District had waived the issue of noncontiguity by its failure to file a petition on each and every disconnection.
On appeal, the Winfield District contended that it was error for the trial court to consolidate the petitions for hearing and that the relevant facts for consideration were those existing on the dates on which each petition was filed. The appellate court disagreed, noting that the legislature, in referring to the defenses of noncontiguity and impairment in section 20 used words of futurity ("will cause the territory remaining," "will impair the ability of the district"), and provided for automatic disconnection after the passage of the specified time, except where a petition is filed within the 60-day limit, in which case the disconnection would not take place until ordered by a court following a hearing. The court stated:
"Since a hearing is contemplated in order to determine whether disconnection should take place and since disconnection does not occur until it is in fact ordered by the court, the facts at the time of the hearing and final disposition must control the court's decision. This interpretation is in accord with the usual holdings in other disconnection proceedings where it has been concluded that the determination of whether certain territory may be deemed disconnected from a city must be based on the state of facts existing at the time of the hearing rather than at the time the petition to disconnect was filed. [Citations.]" 29 Ill. App.3d 630, 633.
In the case at bar, when the District filed its petition to prevent automatic disconnection in November of 1972, it effectively prevented the disconnection of Ballard Gardens on January 1, 1973. When the petition was finally heard in 1974, intervening events had made impossible the District's burden of proving that the ...