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In Re Annexation To City of Prospect Hts.





APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH SCHNEIDER, Judge, presiding.


Objector, Village of Arlington Heights, appeals from an order of the trial court overruling its objections to an annexation ordinance adopted by petitioner, City of Prospect Heights, and finding the ordinance to be valid. Arlington Heights also appeals from a second order declaring the territory to be annexed to Prospect Heights. On appeal Arlington Heights contends that the annexation was invalid because Prospect Heights failed to comply strictly with statutory requirements. Specifically, Arlington Heights argues that the ordinance was not validly adopted due to procedural defects and because of a prior pending petition in the circuit court; that the legal description was materially defective; that the territory was not contiguous; and that the notice was not properly given.

This proceeding was commenced pursuant to section 7-1-2 of the Illinois Municipal Code. (Ill. Rev. Stat. 1979, ch. 24, par. 7-1-2.) On February 6, 1980, an ordinance adopted by Prospect Heights on January 21, 1980, expressing its desire to annex certain described territory was filed with the clerk of the circuit court. A map of the territory proposed to be annexed was attached as part of the ordinance. The entire parcel comprised 74 acres and had common boundaries with both municipalities.

On February 8, 1980, the trial court set the date of March 4, 1980, for hearing on the validity of the ordinance. On February 14, 1980, notices were sent to the township trustees and highway commissioner. On February 28, 1980, Arlington Heights filed objections to the validity of the ordinance. After a hearing, on August 17, 1981, the trial court overruled the objections, determined the ordinance to be valid, and ordered that the question of annexation be submitted to the electors of the territory. Following an election in which a majority of the electors approved the annexation, the trial court, on November 12, 1981, entered an order declaring the described territory annexed to Prospect Heights.

Arlington Heights initially contends that the ordinance seeking annexation was invalid because the city council of Prospect Heights failed to follow its own procedural rules. Section 35.1 of the ordinance establishing rules of order and procedure for the council provides:

"Every ordinance shall be read when introduced and lie over until the next regular meeting of the City Council provided that this rule may be suspended and an ordinance read and passed at the same meeting of the Council at which it is introduced only by the concurrence of two-thirds of all the Aldermen elected, by a roll call vote."

In the present case a motion to waive the first reading of the ordinance was passed unanimously by voice vote. The ordinance was then passed at the same meeting by a two-thirds roll call vote. Arlington Heights argues that the council should have held a roll call vote specifically on the issue of suspension of the rules and that the roll call vote passing the ordinance was insufficient to suspend the rule and therefore ineffective to pass the ordinance.

• 1 The language of this rule is somewhat ambiguous. We find, however, that a more reasonable reading would require only one roll call vote both to suspend the first reading rule and pass the ordinance. Where statutory language is ambiguous, a court may look to the nature of the act and to the reason and necessity for its enactment. (Lee Lumber & Building Material Corp. v. Department of Revenue (1979), 79 Ill. App.3d 1015, 398 N.E.2d 933.) A single roll call vote would accomplish the obvious purpose of the rule by insuring that an ordinance would lie over unless two-thirds of the aldermen were in favor of passing it at the same meeting. We hold that the council followed its procedural rules.

Arlington Heights next contends that the ordinance was invalid because a petition for annexation of substantially the same territory was pending at the time this ordinance was adopted. The pending petition, to which Arlington Heights refers, filed by the landowners and electors of the territory in question, also sought annexation to Prospect Heights. The petition was dismissed by court order on the morning of February 6, 1980, prior to the filing of the present ordinance.

• 2 Arlington Heights correctly asserts that no annexation proceeding may be initiated legally where an annexation petition is pending with regard to the same territory. (City of Countryside v. Village of LaGrange (1962), 24 Ill.2d 163, 180 N.E.2d 488; (City of East St. Louis v. Touchette (1958), 14 Ill.2d 243, 150 N.E.2d 178.) An annexation proceeding commenced pursuant to section 7-1-2, by the adoption of an ordinance expressing a desire to annex, is not considered to be "initiated" for purposes of this rule, however, until the ordinance is filed in the circuit court. (Village of LaGrange; Touchette.) Since the ordinance in the present case was not filed until after the prior petition was dismissed, the annexation proceeding was legally initiated.

Arlington Heights' reliance on Village of Oak Lawn v. Village of Bridgeview (1968), 92 Ill. App.2d 284, 236 N.E.2d 293, and In re Incorporation of Village of Capitol Heights (1968), 41 Ill.2d 256, 242 N.E.2d 247, is misplaced. Although the court in Village of Oak Lawn found the ordinance to be invalid due to the pendency of a prior petition, the ordinance was of an entirely different nature than the ordinance in the present case. That ordinance was adopted under section 7-1-8 (Ill. Rev. Stat. 1979, ch. 24, par. 7-1-8), which provides for the initiation of annexation proceedings by the filing of a petition signed by the landowners of the territory sought to be annexed. Hence the ordinance subsequently adopted by the annexing entity serves to finalize the annexation process. Similarly, in Village of Capitol Heights the ordinance in question actually effected the annexation. The present case is obviously distinguishable since the ordinance in question, adopted pursuant to section 7-1-2, merely expressed Prospect Heights' desire to annex the property and thereby constituted only the first step in the annexation proceedings.

We next address Arlington Heights' argument that the legal description of the territory sought to be annexed as set forth in the ordinance was materially defective. (Ill. Rev. Stat. 1979, ch. 24, par. 7-1-4.) Arlington Heights maintains further that the trial court's attempt to amend the ordinance to correct one of the errors was not authorized by statute.

Although section 7-1-4 requires dismissal of an annexation ordinance where the legal description contained therein is materially defective, such descriptions are not construed with the same strictness as those contained in deeds and contracts. If the ordinance and accompanying map, when viewed together, fairly apprise the public of the property involved, the description will be considered proper. People ex rel. Cameron v. New (1905), 214 Ill. 287, 73 N.E. 362; People ex rel. Rogers v. City of Park Ridge (1967), 86 Ill. App.2d 82, 230 N.E.2d 289.

• 3 There were two errors in the legal description in question. The first error was contained ...

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