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In Re Disconnection of Territory

OPINION FILED MARCH 22, 1984.

IN RE DISCONNECTION OF CERTAIN TERRITORY FROM THE VILLAGE OF MACHESNEY PARK (ILLINOIS NATIONAL BANK AND TRUST COMPANY OF ROCKFORD, PETITIONER-APPELLEE,

v.

THE VILLAGE OF MACHESNEY PARK, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Winnebago County; the Hon. Alford R. Penniman, Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

The village of Machesney Park (Village) appeals from a judgment of the circuit court of Winnebago County which granted a petition to disconnect two tracts of real property from the Village pursuant to sections 7-3-1, 7-3-2, and 7-3-3 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, pars. 7-3-1, 7-3-2, 7-3-3). The Village contends on appeal that: (1) the trial court lacked jurisdiction to disconnect because the notice and hearing requirements of section 7-3-2 were not met; (2) the court lacked jurisdiction to disconnect because the original petition did not contain the signatures of a majority of the owners of the land described in the petition, as required by section 7-3-1; (3) the court's finding that disconnection would not unreasonably disrupt the growth prospects and plan and zoning ordinances of the Village was against the manifest weight of the evidence; and, (4) the court's finding that disconnection would not unduly harm the Village through loss of tax revenue in the future was against the manifest weight of the evidence.

The Village was a newly organized village incorporated on February 24, 1981. The Illinois National Bank & Trust Company of Rockford (petitioner), as trustee, filed the instant petition to disconnect on February 19, 1982, within one year of the Village's incorporation, as required by section 7-3-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 7-3-1). A hearing on the petition was set for March 12, 1982, and notice of the hearing was published on February 27, 1982. However, the notice failed to describe the property proposed to be disconnected, and failed to indicate that the municipality and any owners or residents of the territory to be disconnected or the municipality shall have an opportunity to be heard, as required by sections 7-3-2(2) and 7-3-2(4) of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, pars. 7-3-2(2), (4)).

On March 12, 1982, the Village was ordered to respond to the petition, and the response, filed March 19, 1982, admitted in relevant part that the petition was filed within one year of the Village's organization.

The cause was subsequently continued on numerous occasions until November 18, 1982, pursuant to section 7-3-3 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 7-3-3). On that date petitioner moved to amend its petition to correct the legal description of the property in the petition. Petitioner's counsel explained at the hearing that it discovered that the legal description of Tract I included property to the north which was not owned by petitioner. The court granted the motion, which was not objected to by the Village, and the petition was subsequently amended to exclude the encroached-upon property.

At the November 18 hearing the parties also filed a written stipulation which stated, in relevant part, that petitioner is the owner of the real property sought to be disconnected, that there are no electors residing on the property in question, and that the petition was properly filed within one year of the Village's organization. Subsequently, the Village's attorney stated that he was not admitting that the notice requirements of section 7-3-2 had been complied with, noting that they were not alleged in the petition and he had not yet seen the published notice. The deficiencies in the original notice were then discovered by the court and petitioner stated that the notice was prepared by it at the court's direction. The Village expressed its willingness to waive notice as to itself; however, the court ordered that it be republished and the hearing reset on the belief that the notice requirements may be jurisdictional. The hearing was set for December 9, 1982, and the notice was republished on November 26, 1982, in proper form. The Village stipulated to service of the notice upon it.

On November 30, 1982, the Village filed a motion to dismiss the petition on the jurisdictional grounds raised in this appeal, which motion was argued on December 1, 1982. At the hearing on the motion, the Village requested leave to withdraw its previous waiver of notice, stating that the jurisdictional requirements of notice cannot be waived. The motion to dismiss was denied and the cause was continued for a hearing on the merits on December 9, 1982. Just prior to the December 9 hearing, the Village moved to amend its response to the petition to deny that the petition was properly filed within one year of the Village's incorporation, and to strike that portion of the stipulation stating that the petition was properly filed within the one-year limitation period. The motion was granted.

At the hearing on the merits of the petition to disconnect, it was established that the territory sought to be disconnected contains 523 acres which represents approximately 10% of the 5,234 acres contained within the Village. This 523-acre parcel is comprised of two tracts of land. Tract I contains 350 acres of land presently zoned for planned community development under a special use permit. Under the permit, 73.3 acres of this tract is approved for commercial use, 50.8 acres for industrial use, and 227 acres for residential use. However, if by November 1984 the owner of the property, Alden Orput, has not undertaken development pursuant to the special use permit, it will terminate and the zoning will revert back to agricultural use. As of the date of the hearing, on December 9, 1982, no construction had yet been commenced on the property, and there were no plans for its development. Additionally, various other conditions of the special use permit, which are not relevant here, had not been met.

Tract II, which is just east of Tract I, contains 173 acres zoned agricultural, and is owned by Brian Hutchins. This tract is designated under the Winnebago County Year 2000 Plan as low and medium density housing. However, at the time of the hearing, no one was residing on any of the property in Tracts I or II.

It was also established at the hearing that disconnection of these tracts would result in a loss of $6,300 from the township road and bridge sharing fund. Receipts from this fund in 1982-83 fiscal year totaled approximately $63,500. However, disconnection would also result in the loss of a road annexed to the property and thus would presumably save the Village these maintenance costs. No property tax had ever been levied upon the subject property.

The Village first contends that the trial court was deprived of jurisdiction to grant the disconnection petition because proper notice was not published within the time prescribed in section 7-3-2 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 7-3-2), and because the original petition was not signed by a majority of the owners of the land described therein, as required by section 7-3-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 7-3-1).

Section 7-3-2 of the Illinois Municipal Code states, in relevant part:

"Sec. 7-3-2. Upon the filing of the petition as provided in Section 7-3-1, the court shall set the same for public hearing which date of public hearing shall be within 30 days of the date of the filing of the petition. The court shall give at least 10 days notice of such hearing by publishing notice * * * not less than 10 days prior to the date set for the public hearing. The notice (1) shall refer to the petition filed with the court, (2) shall describe the territory proposed to be disconnected, (3) shall indicate the prayer of the petition and the date, time and place at which the public hearing will be held and (4) shall further indicate that the municipality and any persons residing in or owning property in the territory involved or in the municipality from which such territory is sought to be disconnected shall have an opportunity to be heard on the prayer of the petition." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 24, par. 7-3-2.)

It is undisputed that the original notice, published February 27, 1982, was defective under section 7-3-2 for failing to describe the territory in question and for failing to indicate that the Village and residents of the Village had an opportunity to be heard on the disconnection petition. (Ill. Rev. Stat. 1981, ch. 24, par. 7-3-2.) It is also undisputed that these defects were removed in the republication of notice on November 26, 1982, which republication was 13 days prior to the actual hearing date on December 9, 1982. However, the Village argues that the time limitations contained in the above statute are jurisdictional. Thus, it argues that although the hearing was "set" within 30 days of the filing of the original petition, the defects in the notice deprived the court of jurisdiction to proceed, and made it impossible to have proper notice 10 days in advance of the original date set for public hearing, as ...


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