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In Re Organization of Algonquin Pk. Dist.

OPINION FILED FEBRUARY 19, 1982.

IN RE ORGANIZATION OF GREATER ALGONQUIN PARK DISTRICT. — (CITIZENS' COMMITTEE FOR A PARK DISTRICT ET AL., PETITIONERS-APPELLANTS,

v.

THE VILLAGE OF LAKE IN THE HILLS, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of McHenry County; the Hon. ROLAND A. HERRMANN, Judge, presiding.

JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

This appeal arises from the dismissal of a petition filed in the circuit court of McHenry County for organization of the Greater Algonquin Park District upon objections raised by several individuals, a municipal corporation, and a bank as trustee. We allowed an expedited appeal and on January 22, 1982, issued a brief decision reversing the trial court and finding the objections to the form of the petition to be without merit. We remanded with directions to the trial court to determine forthwith whether the boundaries as defined in the petition are reasonable, and if so, to place the question of the formation of the park district for submission to the voters on March 16, 1982. In this opinion we set forth the reasons for that decision.

The petition for formation of a park district was filed on November 4, 1981, in the circuit court of McHenry County. The petition consisted of 146 separate sheets signed by 618 residents of Algonquin, Illinois. The petitions set forth the legal description of the proposed park district and represented that the territory lies within McHenry County, closely approximates the community served by Algonquin, Illinois, and contains no territory contained in any other incorporated park district. Also filed with the petition was the affidavit of David Haraburda stating that on or about November 4, 1981, he caused notice of intention to file a petition for formation of the Greater Algonquin Park District to be published in The Cardunal Free Press, a newspaper of general circulation within the territory of the proposed park district. Attached to the affidavit was the actual notice of petition to form a new park district.

On November 18, 1981, a publisher's certificate was filed signed by the publisher of The Free Press. *fn1 The certificate stated that The Free Press is a triweekly, secular newspaper of general circulation regularly published in the city of Carpentersville, Kane County, Illinois. It further certified that the notice of petition for formation of the park district, a copy of which was attached to the certificate, was published in the newspaper on November 6, 1981. Another publisher's certificate, also filed on November 18, 1981, certified that notice of public hearing regarding the petition to form the park district was published in The Free Press on November 16, 1981.

On December 3, 4, 7, 9, and 10, 1981, various objections to the petition were filed respectively by the village of Lake in the Hills, Robert and Karen Boncosky, Home State Bank of Crystal Lake as trustee under trust number 2674 and its various beneficiaries, Raymond E. Plote, and Melvin L. Boncosky and William P. Caveny, praying that the petition be dismissed. Each objection set forth a statement of interest. The objection of the village of Lake in the Hills alleged that portions of the proposed park district are either already part of that village or in the process of being annexed. Other objections alleged ownership, either legal or beneficial, of certain real property located within the proposed park district. The nature of the objections of the village of Lake in the Hills, Robert and Karen Boncosky, and Home State Bank essentially were that the petitions did not contain a legally sufficient description of the proposed district and that the boundaries were not reasonable. The objection of Raymond Plote alleged, inter alia: that the petition violated section 2-3 of the Park District Code in that the petition was not accompanied by a request that the circuit judge set a date for public hearing and that the circuit judge did not set a date for public hearing; the petition violated section 28-3 of the Election Code in that it did not state the question of public policy to be submitted and the proper certification of signatures was not made; and that the publication of notices did not meet the requirements of Illinois law. The objection of Melvin L. Boncosky and William Caveny alleged inter alia: notice was insufficient in that it violated section 2-3 of the Park District Code since it was published in a Kane County newspaper; notice of publication violated section 2-2 of the Park District Code in various respects; and the petition was in violation of section 28-3 of the Election Code in that the statement at the bottom of the petition did not certify that it was signed by a registered voter.

A hearing set for December 7 was continued to December 10. No evidence was presented on December 10, and after listening to arguments of counsel, the trial judge dismissed the petition stating that "it is defective publication." The court below also denied petitioner's oral motion to strike certain of the objections for lack of legal standing to file objections to the petition.

Formation of a park district is governed by provisions of the Park District Code (Ill. Rev. Stat. 1979, ch. 105, par. 1-1 et seq.). Section 2-2 (Ill. Rev. Stat., 1980 Supp., ch. 105, par. 2-2) and section 2-3 (Ill. Rev. Stat. 1979, ch. 105, par. 2-3) provide for the contents of the petition to organize a park district and the filing, notice, and hearing on the petition. The "time and manner of conducting" the referendum to organize a park district are to be in accordance with the general election law of the State. (Ill. Rev. Stat., 1980 Supp., ch. 105, par. 1-5.) Article 28 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 28-1 et seq.) deals with the submission to the voters of questions of public policy, and certain of its provisions, particularly sections 28-1, 28-2 and 28-4, are relevant to the resolution of some of the objections to the petition raised below.

The objectors first contend that section 2-2 of the Park District Code (Ill. Rev. Stat., 1980 Supp., ch. 105, par. 2-2) was not complied with in two respects: the publication of the notice of intent to petition for formation of a park district was not effectuated prior to the filing of the petition as required by law; and the publication of notice was in The Free Press, which, according to the publisher's certificate, was a newspaper of general circulation published in the city of Carpentersville, Kane County, and is not in conformance with the statute requiring publication in a newspaper published within the proposed political subdivision, or if none, in a newspaper of general circulation within the territory of the proposed political subdivision. In this case, the proposed park district is entirely within McHenry County.

Section 2-2 provides, inter alia, as follows:

"The petition must include an affidavit attesting that notice of intent to petition for formation of a park district has been published as required by the general election law. * * *" (Ill. Rev. Stat., 1980 Supp., ch. 105, par. 2-2.)

The relevant provision of the Election Code is section 28-2 (Ill. Rev. Stat., 1980 Supp., ch. 46, par. 28-2), which provides in pertinent part:

"A petition for the creation of a political subdivision whose officers are to be elected rather than appointed must have attached to it an affidavit attesting that at least 108 days and no more than 138 days prior to such election notice of intention to file such petition was published in a newspaper published within the proposed political subdivision, or if none, in a newspaper of general circulation within the territory of the proposed political subdivision in substantially the following form:

NOTICE OF PETITION TO FORM A NEW ____

Residents of the territory described below are notified that a petition will or has been filed in the Office of ____ requesting a referendum to ...


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