APPEAL from the Circuit Court of Lake County; the Hon. HENRY
H. CALDWELL, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
This case arises out of the annexation and rezoning of certain previously unincorporated property by the Village of Lake Zurich, Illinois. On September 11, 1968, the village signed a pre-annexation agreement with Mueller-Groscup, Inc., the owner of the property in question, which provided that part of the property zoned for single-family homes by Lake County would be rezoned as a multiple dwelling district by the village after the annexation. The annexation became final when an annexation ordinance, together with the related zoning, was passed by the village on February 3, 1969. The ordinance was recorded on April 1, 1969.
The procedural history of this case is quite involved. Four years after the annexation and rezoning, on January 31, 1973, plaintiff, Echo Lake Concerned Citizens Homeowners Association, Inc. (hereinafter Association), filed a two-count complaint against the village, Mueller-Groscup and two individual officers of Mueller-Groscup. The Association represents a group of homeowners whose property is near the property in question. The complaint sought an injunction and declaratory judgment that the pre-annexation agreement had no legal effect and asked the trial court to restrict the use of the property in question to single family homes. The Association alleged that the defendants had not followed the proper procedures in passing the annexation ordinance and allowing the rezoning and also that multiple-family zoning on the property in question was unconstitutional.
The defendants moved to dismiss the complaint and the trial court struck count I of the complaint with leave to amend. An amended two-count complaint (hereinafter the first amended complaint) was filed on May 15, 1973. Count I of the first amended complaint, which again named the Association as plaintiff and the village, Mueller-Groscup and its two officers as defendants, challenged the constitutionality of the rezoning but did not directly seek to void the annexation. The second count was brought solely in the name of a new plaintiff, Echo Lake Community Corp., another not-for-profit Illinois corporation (hereinafter the Corporation), and added the County of Lake to the original group of defendants. This count asked that the plaintiffs be declared to be the sole owners of Echo Lake and "that the defendants be enjoined from using said lake for any purpose whatsoever." Defendant officers of Mueller-Groscup filed two counterclaims. The first was against the plaintiff Echo Lake Concerned Citizens Homeowners Association, the village and the Building Commissioner of the village and asked for relief to enable the construction of multiple-family units on the property in question. The second counterclaim was brought solely against the Echo Lake Community Corp. Like count II of the complaint, it involved the right to use Echo Lake. Both counterclaims were dismissed but defendants were given leave to amend the second counterclaim and did so on February 26, 1974.
Count I of plaintiffs' first amended complaint was subsequently dismissed as to the defendant village. Plaintiff Association appealed. By order we dismissed the appeal because the trial court did not find "no reason for delaying enforcement or appeal therefrom," as required for our jurisdiction under Supreme Court Rule 304(a) (Ill. Rev. Stat. 1973, ch. 110A, par. 304(a)). We indicated at that time, however, that if the trial court were to subsequently make the required finding we would hear the appeal on the original briefs.
On January 28, 1976, plaintiffs moved for leave to file a second amended complaint in the trial court. On February 5, 1976, the remaining individual defendants and Mueller-Groscup moved that count I of the first amended complaint be dismissed as to them. On the same day the trial court dismissed count I with regard to all defendants and found "no just cause for delaying enforcement or appeal therefrom." In a separate order the trial court denied plaintiffs' motion for leave to file a second amended complaint but without including the "just cause" language cited above. Plaintiff Association filed a notice of appeal asking that we reverse the trial court's order dismissing count I with regard to all defendants. Subsequently, plaintiffs have questioned the order denying leave to file a second amended complaint. By order we permitted amendment of the record to include the text of the second amended complaint. Plaintiffs then moved in our court for leave to dismiss count II of the complaint or for alternative relief. Defendants objected to such a dismissal on the grounds that counterclaims were still pending.
There are three questions before us. The dismissal of count I of plaintiffs' first amended complaint; the denial of plaintiffs' motion for leave to file a second amended complaint; and plaintiffs' motion in this court to dismiss count II of the first amended complaint.
In its motion to dismiss count I, defendant village alleged that the count was barred by time limitations set forth in section 7-1-46 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 7-1-46), and also that plaintiffs were guilty of laches. The trial court agreed that the action was barred by statute. Count I was dismissed as to the Village on that basis but no ruling was made on the question of laches.
Plaintiffs raise three claims in connection with this dismissal. They begin by contending that the count is not barred by the statute of limitations for contesting annexations. The Illinois Municipal Code includes the following:
"§ 7-1-46. Neither the People of the State of Illinois nor any person, firm or corporation, public or private, nor any association of persons shall commence an action contesting either directly or indirectly the annexation of any territory to a municipality unless initiated within one year after the date such annexation becomes final or within one year of the effective date of this amendatory Act of 1965 whichever date occurs latest." (Ill. Rev. Stat. 1973, ch. 24, par. 7-1-46.)
Plaintiffs' action was begun more than one year after the date of annexation became final. Therefore, if count I falls within the scope of this statute, the trial court ruled correctly.
Plaintiffs make two separate arguments in an attempt to circumvent the effect of the one-year statute of limitations. First, they stress that the first amended complaint, unlike the original complaint, was directed only at the rezoning and did not expressly challenge the validity of the pre-annexation agreement or the annexation. Defendants argue in response that "the annexation is specifically conditioned upon the establishment and approval by the Village of the requested multiple family zoning."
Thus, at issue is whether plaintiffs can successfully attack the rezoning without at least indirectly contesting the annexation. Several parts of the pre-annexation agreement emphasize that the rezoning of the property was a prerequisite to the annexation. The preamble to the agreement includes the following.
"WHEREAS, the Owner has previously filed with the Village a Petition for Annexation to the Village of the property described herein, which annexation is subject, however, to the approval by proper Village authorities of ...