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Peo. Ex Rel. Cty. St. Clair v. City Belleville

OPINION FILED FEBRUARY 15, 1980.

THE PEOPLE EX REL. THE COUNTY OF ST. CLAIR ET AL., PLAINTIFFS-APPELLANTS,

v.

THE CITY OF BELLEVILLE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of St. Clair County; the Hon. DELMAR KOEBEL, Judge, presiding.

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

The People of the State of Illinois, upon the relation of the county of St. Clair, a township, a road district, and two fire protection districts, brought a quo warrantor action challenging the validity of three annexation ordinances passed by the city of Belleville pursuant to section 7-1-8 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 7-1-8). Following a bench trial, judgment was entered in favor of the defendant city upholding the validity of the ordinances and dismissing the People's complaint. On appeal four issues are raised. In general they relate to the contiguity of the annexed parcels with the annexing municipality and to the annexing municipality's compliance with statutory requirements in two respects, the giving of notice to constituent fire district trustees and the accuracy of the map of the annexed property which must be recorded with the annexation ordinance.

As a prelude to the statement of facts we supply a diagram showing some pertinent features of the tracts and boundaries involved. The diagram is not drawn to scale.

Within an unincorporated area just to the southwest of the city of Belleville lay a 90-acre tract located in Stookey township and owned by the Catholic Diocese of Belleville. It was proposed as the site of a new Venture store. The city of Belleville and the Catholic Diocese of Belleville subsequently entered into an annexation agreement whereby the city agreed, among other things, to extend its sanitary sewerage system to the proposed Venture store site, to authorize the owner of the site to have a road constructed near it, and to authorize the owner of the site to have both Illinois State Route 13, located on the northern boundary, and U.S. Route 460, located on the southern boundary, improved in order that access might be had from those routes to the site, all at the city's expense.

At the same time the city of Belleville proposed to annex two other tracts. One of these was the Illinois Central Gulf Railroad right of way which bordered the city of Belleville to the south, according to plaintiff, for 1,350 feet, and, according to defendant, for 1,158 feet. It was 100 feet wide and extended, still parallel with the southern municipal boundary, from the southwest corner of the city in a westerly direction into unincorporated territory for a distance of approximately 1,800 feet as far as South 74th Street which runs generally north and south. The other of these tracts proposed for annexation was a narrow strip of property, referred to as the Schaumleffel property, which lay immediately south of the Illinois Central Gulf Railroad right of way and parallel to it. It was approximately 25 feet wide and extended from a point near the southwest corner of the city limits almost to South 74th Street. Immediately south of the Schaumleffel property and parallel to it was Illinois State Highway 13, bordered on its other (south) side by the Catholic Diocese property. The highway was approximately 112 feet wide and, like the Schaumleffel property, extended from a point near the southwest corner of the city limits almost to South 74th Street. Plaintiff's portion of the diagram suggests that the Schaumleffel property and the pertinent part of Illinois State Highway 13 extended as far as South 74th Street although, according to the plat, they did not extend quite that far. The entire western edge of the Catholic Diocese property, however, would have touched South 74th Street if that street had extended so far. According to defendant in its brief, the Schaumleffel property adjoined the Illinois Central Gulf Railroad right of way for approximately 860 feet. The shortest distance between the southwest corner of the city of Belleville and the northeast corner of the Catholic Diocese property was approximately 275 feet.

On September 15, 1976, the Illinois Central Gulf Railroad filed a petition for annexation of the railroad right of way. The next day a copy of the proposed annexation agreement between the Catholic Diocese of Belleville and the city of Belleville was filed. Four days later, on September 20, 1976, owners of record of the Schaumleffel property filed a petition for annexation of that property. Ten days after that, on September 30, 1976, the Catholic Diocese of Belleville filed a petition for annexation of the 90-acre tract. On October 7, 1976, the Belleville City Council passed four ordinances relating to the annexations: (1) Ordinance No. 3390 annexing the Illinois Central Gulf Railroad right of way; (2) Ordinance No. 3391 annexing the Schaumleffel property; (3) Ordinance No. 3392 adopting the annexation agreement between the city and the Catholic Diocese of Belleville; (4) Ordinance No. 3393 annexing in three tracts the 90 acres of the Catholic Diocese. With the annexation of the Schaumleffel property, the portion of Illinois State Highway 13 adjacent to it was annexed by operation of law (Ill. Rev. Stat. 1975, ch. 24, par. 7-1-1).

At trial only two witnesses testified, both land surveyors registered in Illinois. The plaintiff's surveyor, Richard Weinel, testified to errors in both the Schaumleffel and the Catholic Diocese property descriptions which, he said, resulted in errors in the plat attached to the annexation ordinances. The principal error in the Schaumleffel property description arises out of the use of a call line of 437.9 feet which is short by at least 30 feet. The 437.9 feet specified in the description is to be measured from the intersection of the northeasterly right-of-way line of Illinois State Highway 13 with the east line of 74th Street. That call line was correct until Illinois State Highway 13 was widened some years before the annexations at issue. Although the highway was widened by only 12 feet, the road curves at the point of intersection at 74th Street. As a result the wider arc of the right-of-way line throws off the call line of 439.7 feet by 30 to 40 feet. If 439.7 feet is measured from the intersection of the east line of 74th Street with the new northeasterly right-of-way line, the description, according to plaintiff's brief, includes property owned not by the Schaumleffels, who petitioned for annexation, but by a veterinary clinic. The owner of that property did not petition for annexation, nor did the city suppose it was annexing that property. The description and accompanying plat then may include 30 to 40 feet more than the city intended to annex.

The city's witness, John Thompson, who had drawn the plat from the property description, testified that he did indeed use the figure of 439.7 feet from the right-of-way line. He was unable to say, though, whether he used the right-of-way line as it existed before or after the widening of the highway. If he used the old right-of-way line, the plat presumably is in error as to the width of Illinois State Highway 13 by essentially 12 feet. If he used the new right-of-way line, the plat presumably is in error as to the extent of the annexation by 30 to 40 feet.

Plaintiff's witness testified also to an ambiguity in the Schaumleffel property description occasioned by the 12-foot addition to the highway. The property description provided that the distance of 439.7 feet be measured from a point on the right-of-way line. Prior to the acquisition, no ambiguity existed because the distance could be measured from a point on the right-of-way line. Now that there is no longer a right-of-way line in that place, only the point remains, incapable of sufficiently precise location and, in the opinion of the witness, consequently ambiguous.

Plaintiff's witness testified further to errors in the descriptions of the Catholic Diocese property. By the use of an overlay he had drawn from the legal description in the ordinance of Tract No. 3 of the Catholic Diocese property, he showed that the plat accompanying the ordinance was inaccurately drawn with respect to the easterly line of the south portion of the Catholic Diocese property lying west of Oak Manor Subdivision. A major source of the difficulty appears to be that the plaintiff's witness who surveyed and platted part of the Oak Manor Subdivision used the center of the creek which flows there as the subdivision boundary line only in part. For the rest, instead of following the meanders along the center line, he ran straight lines in order to accord with the wish of the property owner that costs be cut. When the city's witness later attempted to draw the annexation plat, he used the property description contained in the annexation ordinance which was based not on any description of the plaintiff's witness but on older descriptions which follow the meanders. Once the city's witness became aware that the pieces of property did not abut according to the descriptions he was working from, he attempted to but could not discover the cause of the discrepancy either by searching the courthouse records or by consulting a title company. Given his research and the title company's assumption that the ownership and boundary lines were the same, he too assumed that the easterly line of the Catholic Diocese property coincided with the westerly line of Oak Manor Subdivision and drew the plat according to that assumption and not from the property description contained within the annexation ordinance. As a result the plat is inaccurate in that it does not reflect the property description of Tract No. 3, and the property description of Tract No. 3 is inaccurate in that it does not reflect the use of straight lines instead of meanders. If the plat had been drawn in accord with the property description of Tract No. 3 in the annexation ordinance, itself erroneous for following the meanders, the Catholic Diocese property and Oak Manor Subdivision would not abut as they appear to do on the plat accompanying the ordinance. Were the plat accurately drawn, the Catholic Diocese property at times would not quite abut Oak Manor Subdivision and at other times would encroach somewhat upon some lots within the subdivision. The city's witness seemed to indicate at one point in the testimony that the amount of the discrepancy along this boundary varied from about five to 15 feet. It seems a fair conclusion drawn from the testimony, though it was not expressly stated, that were the Catholic Diocese property description correct, the Catholic Diocese property and Oak Manor Subdivision would abut.

Plaintiff's witness also testified to an inconsistency between the property descriptions of Tracts Nos. 2 and 3 of the Catholic Diocese property and the plat. The property descriptions exclude part of the right of way of U.S. Route 460 while the plat includes the entire right of way.

With these facts in mind we turn to the issues raised on appeal. The plaintiff first contends that the annexation of the Illinois Central Gulf Railroad right of way constitutes strip or corridor annexation which is forbidden in Illinois. By the plaintiff's view the city annexed the railroad right of way for the purpose of attaining contiguity with property otherwise not contiguous to the city and not properly the subject of annexation by it.

• 1 The test of contiguity in cases relating to strip annexation of privately owned tracts generally has been whether there is a touching or adjoining of the property of the annexing body and the property sought to be annexed in "a reasonably substantial physical sense." (In re Annexation to Village of Buffalo Grove (1970), 128 Ill. App.2d 261, 265, 261 N.E.2d 746, 749; In re Annexation to Village of South Barrington (1972), 7 Ill. App.3d 958, 289 N.E.2d 1; Western National Bank v. Village of Kildeer (1960), 19 Ill.2d 342, 167 N.E.2d 169.) The width of the connector and the length of the projection beyond preannexation boundaries are also relevant to the determination of contiguity. (In re Annexation to Village of Buffalo Grove.) In Buffalo Grove, for example, the court found that where a strip of farmland 300 feet wide bounded the annexing municipality for a distance of 675 feet — approximately half the distance the railroad right of way bounds the annexing municipality in the instant case — and extended about 1,300 feet beyond the preannexation boundaries of the village to a large tract of property sought to be annexed, the contiguity requirement was met.

In the case from which courts> have derived their principal guidance in the matter of highway annexations, People ex rel. Adamowski v. Village of Streamwood (1959), 15 Ill.2d 595, 601, 155 N.E.2d 635, 638, the village had attempted to annex 75 contorted miles of roadway in order to reach the property sought to be annexed. That property was located several miles from the village limits and was not only not contiguous to the village but was, in fact, contiguous to another municipality. Annexation of roadway coextensive with the village boundary was not a subject of the Streamwood case. Finding insufficient contiguity, the court set forth the "adjacent and parallel" test of contiguity for highway annexations:

"The law * * * provides for the annexation of territory, even if it is dedicated for street or highway purposes, if the territory is contiguous to the municipality and is not part of any other municipality. The word `contiguous,' as used in that statute, must be defined in keeping with what was the obvious intention of the legislature, which was to make it permissible for a municipality to annex a roadway where, for example, a roadway separates a municipality from territory just the other side of the roadway, which the municipality needs for existing municipal purposes and for natural growth, even though no part of the roadway already lies within the municipality. Contiguous * * * must mean contiguous in the sense of adjacent to and parallel to the existing municipal limits and cannot, under any circumstances, permit a municipality by annexation ordinances to ...


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