APPEAL from the Circuit Court of Kane County; the Hon. JOHN A.
KRAUSE, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Hinckley-Big Rock School District No. 429 (hereafter District) appealed from the judgment of the circuit court of Kane County dismissing its complaint for a declaratory judgment in which it asked that an annexation ordinance of the village of Sugar Grove and the consequent rezoning of certain property be declared invalid. The District also asked for an injunction enjoining a proposed development of certain land pursuant to such annexation ordinance.
The District has territory in Big Rock Township and in the village of Hinckley, and its territorial boundary is adjacent to the western boundary of the township of Sugar Grove, in which is situated the village of Sugar Grove.
In November of 1980, a tract containing 75 acres of land lying within the District and within Big Rock Township, which had previously been zoned F-Farming, was annexed to the village of Sugar Grove under an ordinance of that village authorizing such annexation and rezoning the tract for development into 83 residential lots and 11 acres of light industrial use. The District contends that this violates the official plan of Kane County, which calls for low density housing with lots of 40,000 square feet. In its complaint the District alleged that under the pre-annexation agreement between the village of Sugar Grove and the owner of the 75-acre tract, the landowner would try to disconnect the tract from the District and annex it to another school district, Kaneland School District No. 302, by which the plaintiff District would lose acreage which contributes substantial revenue to the District, since the disconnection would diminish the assessed valuation of the District.
The defendant, village of Sugar Grove, and the owner and developer of the tract of land in question, moved to dismiss the suit for declaratory judgment on the ground that the action was improper, since an annexation of contiguous territory by a municipality can only be questioned by a writ of quo warrantor, not, as here, by a declaratory judgment suit. The basis of this contention is found in Edgewood Park #2 Homeowners Association v. Countryside Sanitary District (1969), 42 Ill.2d 241, which was a suit in declaratory judgment by a homeowners' association to contest the act of the sanitary district in annexing certain residential territory and incorporating it into the sanitary district. The complaint, as here, sought a declaration that the annexation passed by the sanitary district was invalid and further sought an injunction to restrain the sanitary district from asserting jurisdiction over the territory and collecting service charges therein. The circuit court dismissed the suit and the appellate court affirmed, holding that the suit was improper because quo warrantor is the proper remedy for questioning an annexation by a municipal corporation. The supreme court on appeal upheld the decision of the appellate court, holding that the only form of action for questioning an annexation was by quo warrantor. The supreme court said that a declaratory judgment action is not a concurrent remedy.
In its motion to dismiss, the defendant, village of Sugar Grove, relies on the Edgewood Park case and other Illinois cases holding likewise. (See Schallau v. City of Northlake (1979), 82 Ill. App.3d 456; People ex rel. Kirby v. City of Effingham (1976), 43 Ill. App.3d 360.) The District counters with the argument that what it is actually aiming at in this suit is not to question the annexation — which it concedes can only be done by quo warrantor — but rather to question the Sugar Grove Zoning Ordinance and that the present suit is "a zoning suit patterned after the complaint and concept of Village of Barrington Hills v. Village of Hoffman Estates (1980), 81 Ill.2d 392." In that case, Barrington Hills brought a suit in declaratory judgment challenging the annexation of certain unincorporated land by the Village of Hoffman Estates and its rezoning for the purpose of building thereon a large outdoor theatre. Barrington Hills and South Barrington, also a plaintiff, are within 1 1/2 miles of the proposed construction. The appellate court affirmed the trial court's dismissal of the suit on the ground that the allegations of the plaintiffs that they would suffer additional expense, pollution of their air and diminution of property values was not sufficient to constitute them aggrieved persons having a real interest, since they did not allege that they would be required to furnish water, sewer or any other service to the proposed outdoor theatre and that, therefore, they lacked standing to maintain the suit. Upon review, the supreme court reversed, holding that the appellate court's view of the matter had been too narrow and that the effects of Hoffman Estates' rezoning on Barrington Hills and South Barrington portended "direct, substantial and adverse effects upon the plaintiff municipalities in the performance of their corporate obligations, thus giving them a real interest in the subject matter of the controversy." 81 Ill.2d 392, 398.
The District relies heavily on the Barrington Hills case; however, we see important differences between that case and the one we consider here While the District contends this suit is a zoning suit, it appears from the wording of the complaint itself that the District is primarily concerned with the question of annexation — specifically, with the prospect of the land in question being detached from the District. The annexation agreement is attached to and made a part of the complaint and one of the allegations in the complaint is as follows:
"The Pre-Annexation Agreement contemplates that the owner of the property in question will endeavor to disconnect the property from Hinckley-Big Rock School District 429 and annexing it to Kaneland School District 302. If successful, the Hinckley-Big Rock School District would lose acreage that contributes substantial revenue and no children to the District by diminishing the assessed valuation of the District. * * *"
Thus, it appears that the prospect of losing territory which produces tax revenue without any children to serve is a main concern of the District, and this is clearly not a zoning consideration.
Moreover, in Barrington Hills, the contemplated zoning was for a very intensive and unusual use which would clearly cause changes and dislocations in the community without any corresponding advantage to the plaintiff municipalities. In the case before us, the contemplated use is a reasonable and normal one — mostly single-family residential and a few acres of light industrial occupancy — not the intensive and possibly disruptive use anticipated in the Barrington Hills case.
We feel, therefore, that the Barrington Hills case is not a helpful precedent in deciding the question here before us, even if the present case is considered as a challenge to the zoning of the land in question, rather than as a challenge to the annexation. In its order dismissing the District's complaint in declaratory judgment, the trial court also ruled that as a matter of law the village's zoning ordinance "supercedes the County Zoning Plan and cannot be attacked by the Plaintiffs."
While contending that the present action was properly dismissed as a suit questioning an annexation through the impermissible method of a declaratory judgment suit, rather than by quo warrantor, the village raises the preliminary question of the District's standing to question the zoning ordinance of the village. The village relies on this court's decision in Dato v. Village of Vernon Hills (1965), 62 Ill. App.2d 274. In that case, we ruled that school districts had no right to intervene in a zoning case under the authority of section 26.1 of the Civil Practice Act (Ill. Rev. Stat. 1965, ch. 110, par. 26.1), which delineates the situations in which a party may intervene, and that a 1963 amendment to the Municipal Code — section 11-13-20 — giving the school district the right to appear and be heard in any hearing before a zoning commission, did not give the school district authority to intervene in a zoning suit. Two appellate court decisions since then have disagreed with this view. In Board of Education v. County of Woodford (1974), 19 Ill. App.3d 1078, the reviewing court noted that the Dato case had not considered a provision in the School Code of 1961 — section 10-2 (Ill. Rev. Stat. 1979, ch. 122, par. 10-2), which reads as follows:
"The directors of each district shall be a body politic and corporate, by the name of `school directors of district No. ____, county of ____ and State of Illinois,' and by that name may sue and be sued in all courts> and places where judicial proceedings are had."
The Woodford court, in a two-to-one decision, held that the above-quoted section of the School Code (which had not been discussed in the Dato case) was authority for the filing of a declaratory ...