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In Re Emmett-chalmers Fire Prot. Dist.

OPINION FILED APRIL 10, 1978.

IN RE PETITION TO CREATE EMMETT-CHALMERS FIRE PROTECTION DISTRICT. — (JOHN CALHOUN MITCHEL ET AL., PETITIONERS-APPELLANTS,

v.

EMMETT-CHALMERS FIRE PROTECTION DISTRICT, RESPONDENT-APPELLEE. — (FREDERICK E. FOSS ET AL., INTERVENORS.))



APPEAL from the Circuit Court of McDonough County; the Hon. CHARLES H. WILHELM, Judge, presiding.

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

This is an appeal from an order of the Circuit Court of McDonough County allowing disconnection as to some parties and denying disconnection as to other parties, of properties within a fire protection district.

The actions were brought pursuant to section 15 of "An Act in relation to fire protection districts" (Ill. Rev. Stat. 1975, ch. 127 1/2, par. 35). The parties sought disconnection of certain properties from the Emmett-Chalmers Fire Protection District (hereinafter referred to as "E-CFPD"). Consolidated hearings were held on the 135 petitions for disconnection. The trial court allowed disconnection as to some properties and denied as to other properties, as we have indicated.

Approximately 50 petitioners have appealed from the order of the Circuit Court. On appeal, the petitioners argue (1) that the findings of the circuit court are against the manifest weight of the evidence, (2) that the circuit court erred in not entering findings of fact as to each individual property, (3) that the trustees of the Emmett-Chalmers Fire Protection District lacked standing to respond in the action on behalf of the district, and that, as a consequence, the district could not object to the disconnection, (4) that the election to create the district is void, and, consequently, the district should be declared a nonentity and the action for creation of the district should be dismissed, and (5) that section 11b of "An Act in relation to fire protection districts" (Ill. Rev. Stat. 1975, ch. 127 1/2, par. 31b) is unconstitutional as applied to petitioners.

The record discloses that in late 1975 petitions were filed in the Circuit Court of McDonough County for the creation of the Emmett-Chalmers Fire Protection District, and that following the election on the issue of creation of a fire protection district, the trial court entered an order establishing the E-CFPD. From January of 1976 through April 1976, some 135 petitions for disconnection of property from the E-CFPD were filed in the circuit court pursuant to section 15 of "An act in relation to fire protection districts" (Ill. Rev. Stat. 1975, ch. 127 1/2, par. 35). By agreement of counsel for the parties, hearings on the petitions were consolidated and held on June 23 and 24, 1976.

At the consolidated hearing, testimony was presented from the trustees of the E-CFPD, who were, at that time, in the process of initially organizing and budgeting for the ongoing operation of the fire protection district. The testimony of the trustees established that the E-CFPD would be a volunteer fire department, and that, at that time, the trustees knew of 40 individuals interested in joining the eventual 25-person volunteer fire company. Arrangements were being made for the training of volunteers in the University of Illinois Firemanship Training Program. The trustees had planned for the procurement of pumper trucks, with a total capacity of 4,750 gallons, together with equipment to take the water out of streams and ponds; also to buy hoses, nozzles, uniforms for the volunteers, a siren, communications systems, ladders and additional equipment. Provision had been made for construction of a fire station on land leased for that purpose at a rent of $10 per year. The projected operating expense for the E-CFPD was $10,819.32 per year. Testimony from the trustees indicated that taxes levied by the district at the rate of $1.25 per $1,000 assessed valuation (the maximum permissible assessment rate which would avoid the possibility of a requirement of a voter referendum), would produce approximately $10,500 per year in tax revenues.

Some of the petitioners seeking disconnection from the E-CFPD were currently obtaining, or desired to obtain fire protection from the Macomb Fire Department, the Colchester Fire Department or the Industry Fire Department. Testimony at the hearing indicated that the Macomb Fire Department is a nonvolunteer fire department with 22 paid fire fighters, and that the department provides fire protection to property outside of Macomb on a contract basis. The Macomb Fire Department apparently had three trucks used in connection with rural fires with a total capacity of 3,250 gallons of water. Additional testimony established that the Colchester Fire Department is a volunteer fire department with 26 volunteer firefighters, and this department responded to rural fires, charging a set fee for each rural call. Testimony was also heard from various petitioners, indicating the position of their particular properties with respect to the City of Macomb and the proposed site of the E-CFPD fire station, and reflected the petitioners' desires with respect to fire protection services.

Following the hearing of evidence in this cause, the circuit court on October 6, 1976, entered an order granting disconnection to certain properties and denying disconnection to other properties involved in the petitions. Motions for post-judgment relief were filed by various petitioners and on December 30, 1976, the circuit court entered an order allowing post-judgment relief to some petitioners and denying such relief to other petitioners, and, also, noting the reasons in a memorandum opinion. On January 3, 1977, the trial court entered its formal order allowing disconnection to certain petitioners, and denying disconnection to other petitioners. Fifty of the petitioners whose requests were denied have appealed, as we have indicated.

It is first contended, on appeal, that the order of the Circuit Court of McDonough County denying disconnection of petitioners' property is against the manifest weight of the evidence. On this issue, we note the well-settled principle, as stated in Tomasek v. City of Des Plaines (1976), 64 Ill.2d 172, 181, 354 N.E.2d 899:

"* * * that a trial court, sitting without a jury, is to weigh conflicting testimony and that its findings will not be disturbed unless they were contrary to the manifest weight of the evidence."

As also stated in General Grocer Co. v. Bachar (3d Dist. 1977), 51 Ill. App.3d 907, 911, 365 N.E.2d 1106:

"A reviewing court may not reverse the judgment of a trial court merely because different conclusions could be drawn. An opposite conclusion must be clearly evidenced from all the evidence before the trial court's judgment can be reversed."

The petitioners in the instant case were seeking to disconnect their properties from the E-CFPD pursuant to section 15 of "An Act in relation to fire protection districts" (Ill. Rev. Stat. 1975, ch. 127 1/2, par. 35), which provides in part:

"Whenever any property within a fire protection district, organized under the provisions of this Act, does not have the territorial qualifications described in Section 1 of this Act [Ill. Rev. Stat. 1975, ch. 127 1/2, par. 21], or is not reasonably protected by the district from the hazards of fire or would receiver greater benefit of service from another such district or other municipal corporation, * * * the owner or owners of such property may detach and disconnect such ...


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