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In Re Incorporation of City of Prospect Heights

OPINION FILED DECEMBER 12, 1979.

IN RE INCORPORATION OF THE CITY OF PROSPECT HEIGHTS. — (JOHN E. GILLIGAN ET AL., PETITIONERS-APPELLEES,

v.

GEORGE J. PRIESTER ET AL., OBJECTORS-APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. HARRY G. COMERFORD, Judge, presiding.

MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

The objectors-appellants, George J. Priester, Veta L. Priester and Waukee Realty Company, Inc. (appellants), appeal from an order entered on December 18, 1975, in the Circuit Court of Cook County directing that an election be held within the limits of the proposed City of Prospect Heights, Illinois, on the question of incorporation. The appellants argue on appeal that the boundaries of the proposed city are grossly unreasonable, arbitrary and capricious. In addition, they assert that the area sought to be incorporated is not contiguous territory as required by statute.

The Illinois Municipal Code provides in pertinent part that:

"Whenever any area of contiguous territory, not exceeding 4 square miles, and not already included within the corporate limits of any municipality has residing thereon a population of not less than 2,500 persons, including 2,000 living in immobile dwellings, it may be incorporated as a city as follows. If such area contains fewer than 7,500 residents and lies within 1 1/2 miles of the boundary line of any existing municipality, the consent of such existing municipality must be obtained before such area may be incorporated." (Ill. Rev. Stat. 1973, ch. 24, par. 2-2-5.)

The incorporation process is commenced when 200 electors residing within the area to be incorporated file a petition with the circuit clerk of the county in which the area is situated. The petition must set forth a definite description of the lands intended to be embraced in the proposed city, the number of inhabitants residing therein, the name of the proposed city and a prayer that the question of incorporation of the proposed city be submitted to the electors residing within its limits. (Ill. Rev. Stat. 1973, ch. 24, par. 2-2-6.) If the area contains less than 7,500 residents, the petition must contain a statement that no part of the proposed city lies within 1 1/2 miles of the boundary line of any existing municipality which has not consented to such incorporation. Ill. Rev. Stat. 1973, ch. 24, par. 2-2-6.

On February 8, 1974, the petitioners filed their petition to call an election on the question of incorporating the city of Prospect Heights. Objections to the petition were filed by various municipalities, individuals and others. George J. Priester, Veta L. Priester and Waukee Realty Company, Inc., are the only objectors who are parties to this appeal.

The appellants allege that they are the owners of approximately 270 acres of land commonly known as Pal-Waukee Airport, a publicly used airport controlled by a control tower leased by the Federal Aviation Administration. They assert that the proposed City of Prospect Heights includes a substantial portion, but not all, of their land, and they contend that there exists no contiguity between their land and the proposed area of incorporation as required by the Municipal Code.

Subsequent to the numerous hearings on the objections of all parties, the trial court entered an order on December 18, 1975, finding that the petitioners had proved the allegations of the petition and directed that an election be held on the question of incorporating the City of Prospect Heights. It is from this order that the appellants have appealed.

The appellants first argue that the boundaries of the proposed city, which bisect Pal-Waukee Airport and thereby include only a portion of it, constitute grossly unreasonable, arbitrary and capricious action. They point out that the north boundary line of the northeast portion of the city is an artificial line which bisects two of the airport's runways. The appellants assert that this artificial boundary was arbitrarily created so that the proposed area of incorporation, consisting of 3.9 square miles, would satisfy the 4-square-mile statutory limit.

The appellants claim that placing a portion of Pal-Waukee Airport within the proposed city while leaving a portion within the unincorporated area of the county would create serious problems and confusion in the assessment and collection of use taxes and municipal retailer's occupation taxes. In addition, they foresee difficulties concerning conflicting city and county zoning and building ordinance requirements. The appellants also point out the national and local importance of the airport and characterize the attempted bifurcation of its facilities as grossly unreasonable.

The appellants cite a decision of the Idaho Supreme Court in which the court held that an annexation which bisected certain buildings of the plaintiff's drivein theater was unreasonable. The court ordered that the city must exclude the plaintiff's land from the annexation, noting that pursuant to Idaho law such an annexation must be reasonable. Batchelder v. City of Coeur D'Alene (1962), 85 Idaho 90, 375 P.2d 1001.

• 1 Illinois courts>, however, have not required reasonableness in annexation proceedings. In Spaulding School District No. 58 v. City of Waukegan (1960), 18 Ill.2d 526, 165 N.E.2d 283, the school district objected to a proposed annexation of certain territory to the City of Waukegan. After determining that the requirement of contiguity was satisfied, the supreme court addressed the school district's argument that the proposed annexation was unreasonable and unfair. Although the court expressed sympathy with the school district's argument, it noted that the legislature had not enacted a requirement of reasonableness, but had left that question to the city council and the electors rather than the courts>. The court explained that:

"Since we find that the territory sought to be annexed is contiguous to the city of Waukegan within the meaning of the statute, we have no authority to question the wisdom of either the legislative enactment or the ordinance." 18 Ill.2d 526, 530.

In In re Annexation to Village of Buffalo Grove (1970), 128 Ill. App.2d 261, 261 N.E.2d 746, the court directed the trial court to grant a petition for annexation which included a portion of the objectors' farm. The court admitted that the objectors' argument, that it was unjust to permit annexation of a portion of the farm, had considerable persuasion. However, citing ...


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