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Frank v. Village of Barrington Hills

OPINION FILED JUNE 2, 1982.

WILLIAM E. FRANK ET AL., PLAINTIFFS-APPELLEES,

v.

THE VILLAGE OF BARRINGTON HILLS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of McHenry County; the Hon. JAMES H. COONEY, Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 24, 1982.

Defendant, the village of Barrington Hills, appeals from an order of the McHenry County circuit court disconnecting plaintiffs' property from it. The village takes issue with the sufficiency of the evidence but also questions the procedure by which the Franks sought to correct the errors allegedly contained in the transcript of the trial.

Disconnection was sought pursuant to section 7-3-6 of the Illinois Municipal Code (Ill. Rev. Stat. 1965, ch. 24, par. 7-3-6), which provides that owners of land within a municipality may have such territory disconnected if it meets certain requirements. The parties' dispute arose over two of these: the territory may not be "contiguous in whole or in part to any other municipality"; and if the territory is disconnected, "the growth prospects and plan and zoning ordinances, if any, of such municipality will not be unreasonably disrupted." Ill. Rev. Stat. 1965, ch. 24, par. 7-3-6(1), (6).

Before we turn our attention to the findings of the court's final order regarding these two requisites, we must first consider whether it was proper to permit the filing of what the village describes the Franks' "second post-trial motion" requesting amendment of the transcript.

The history of this action begins on October 19, 1966, when the Franks filed a petition seeking disconnection of 82.75 acres from the village. A hearing was held on the petition on April 28, 1972. On August 23, 1973, the court dismissed the petition and on February 8, 1974, the court entered judgment for the village. The order entering judgment stated that the Franks failed to prove that if the tract were disconnected the growth prospects and the planning and zoning ordinances of the village would not be unreasonably disrupted. The court added that it made no finding as to whether the tract was contiguous to another municipality.

On March 8, 1974, the Franks filed a post-trial motion. In it they argued that there was substantial evidence that disconnection would not unreasonably disrupt the growth prospects and zoning and planning ordinances of the village. The Franks also contended that there was sufficient evidence to show their property was not contiguous with another municipality.

On August 3, 1977, the trial court circulated to the parties a document entitled "Rulings" denying the Franks' post-trial motion. In this document the court noted that the statute requires that growth prospects and planning and zoning ordinances must not be "unreasonably disrupted." The court noted that an expert witness had testified on behalf of the Franks that disconnection would not "disturb" the growth of the village. The court suggested it found the evidence lacking because the witness stated growth would not be disturbed, instead of using the statutory word, disrupt. The court added, however, that the witness gave an opinion only on the effect disconnection would have on the village's growth and not on its planning and zoning ordinances. The court then stated that considering the growth and the planning and zoning ordinances separately it found the weight of the evidence is that growth prospects would not be disrupted. However, it found the Franks had presented no evidence that the planning and zoning ordinances would not be unreasonably disrupted. The court found that the Franks failed to prove that "if disconnected, the growth prospects and plan and zoning ordinances * * *, of such municipality will not be unreasonably disrupted." Ill. Rev. Stat. 1965, ch. 24, par. 7-3-6(6).

The court then made a finding about contiguity of the property with another municipality. It found the boundary of the Franks' land joined the boundary of the village of Algonquin for 40 to 50 feet within the intersection of Algonquin and County Line (Lake-Cook) Roads. Aside from the common boundary in the roadway the only contact between the village of Algonquin and the Franks' property was at a corner. The court found that the property was not contiguous with the neighboring municipality.

The court concluded that it was not shown the growth prospects and zoning and planning ordinances would not be unreasonably disrupted and ruled "The post trial motion is denied and the evidence stands dismissed." The court added, "Counsel for the village is requested to furnish for entry by the Court, a final order."

In September 1979 the attorney for the village withdrew and the firm presently representing it was substituted. On October 10, 1979, the village moved that the court enter an order denying the Franks their 1974 post-trial motion. That same day the Franks filed without notice a document entitled "Answer to Motion to Enter Judgment and Petition." The petition requested reconsideration of the August 3, 1977, ruling, alleging that the court reporter had discovered an error in a transcript of the hearing: what had been transcribed as "disturb" in the witness' testimony should have been "disrupt." The testimony of plaintiffs' expert witness, therefore, should have read that "[disconnection] in no way would disrupt said growth." Submitted with the petition was an affidavit by the court reporter acknowledging the error.

On October 10, 1979, the court entered its "Final Judgment." Having considered the Franks' post-trial motion and having reviewed the record the court found that the growth prospects and planning and zoning ordinances of the village would not be unreasonably disrupted by disconnection of the property, and that the property was not contiguous with any other municipality. The court did not state whether it considered the transcript of testimony as originally transcribed or as "corrected" by the court reporter's affidavit. The court then ordered the Franks' property disconnected from the village.

The village filed a post-trial motion on November 9, 1979, contending that the court had no jurisdiction to consider the Franks' October 10, 1979, "Answer to Motion to Enter Judgment and Petition" and that even if the court had such authority and considered the record as "corrected" the ...


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