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Orland Park v. First Federal S & L Ass'n

OPINION FILED JULY 23, 1985.

THE VILLAGE OF ORLAND PARK ET AL., PLAINTIFFS-APPELLANTS,

v.

FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHICAGO ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Joseph M. Wosik, Judge, presiding.

JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

This appeal proceeds from a Cook County Circuit Court order striking and dismissing plaintiffs' amended complaint on defendant's motion. The issues presented here involve the legal sufficiency of the pleadings and will therefore require a somewhat extended description.

A five-count complaint was filed jointly by the village of Orland Park (village) and Cook County School District No. 135 (school district), seeking to enforce the provisions of a preannexation agreement (agreement) against First Federal Savings and Loan Association of Chicago (First Federal). *fn1 First Federal's motion to strike and dismiss under section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-615) (Code) was granted and the village and school district within the 30 days allowed filed a five-count, verified amended complaint, to which was attached 11 exhibits. Ford City Bank and Trust Company as Trustee under Trust No. 2145 (Ford City) and Lamplighter Construction Company (Lamplighter) were named as additional defendants. The village also attached a copy of the agreement to the amended complaint, signed by the village, Ford City and Lamplighter by November 17, 1978. The agreement was recorded on June 29, 1982. It is entitled "Pre-Annexation Agreement." Within its preamble it purported to be written pursuant to "Section 11-15,1-1 [sic]," et seq. of the Illinois Municipal Code (Ill. Rev. Stat. 1977, ch. 24, par. 11-15.1-1 (Municipal Code).

Count I of the amended complaint alleged that the village performed all the terms and conditions of the agreement, including: adopting the requisite annexation ordinance; notifying the Orland fire protection district, public library district, board of township trustees and township commissioner of highways of the annexation; adopting R3 zoning classification for the subject property, including zoning map classification and plat approval; assisting defendant developers in obtaining approvals of the metropolitan sanitary district and other governmental bodies; granting defendant developers permission to connect to the village water and sewer system; and approving plans and specifications for public improvements to be built by defendant developers. The village also alleged that First Federal became owner of the subject property on January 27, 1982, pursuant to a sheriff's deed in a foreclosure case. Count I further alleged that the agreement required construction of certain village approved public improvements, which defendants have not completed, including two streets, street pavement and final lift on other streets, sidewalks, storm sewers, detention pond, and installation of street lights as described in exhibits attached to the amended complaint. The real estate was asserted to have been included in the plat of subdivision of the real estate entitled, "Lamplighter," which was approved by the village authorities on May 14, 1979, and signed July 23, 1979.

Count I also alleged that: Ford City and Lamplighter were to furnish a certificate or irrevocable letter of credit to unqualifiedly guarantee the completion of the involvements in question within two years from the date of approval of the final plat of subdivision; First National Bank of Oak Lawn (First National) issued two such letters of credit, one in 1979 and one in 1980; shortly before expiration of the second letter of credit, the village served notices of default upon Lamplighter and Ford City, on March 9, 1981, and March 7, 1981, respectively, as required in said letter; on April 6, 1981, the village passed a resolution in accordance with the terms of the second letter of credit, served the same on First National, and said letter was extended through April 12, 1982, but on April 8, 1982, First National refused to honor two sight drafts of the second letter of credit presented by the village. The village asserted that for it to complete the improvements in question would require eliminating or reducing essential village services because money for the costs of these improvements are not part of the budget allocation, and increasing taxes for the citizens of the village to pay for such improvements would be inequitable since the benefits of the improvements would inure primarily to the land which was the subject of the agreement.

In count II of its amended complaint, the village alleged that: defendants failed to convey certain real estate and pay taxes to the village as required by the agreement and were obligated to pay $9,450 to the school district by delivering the money to the village for forwarding, all within a time limit no later than 4 1/2 years from the date of the agreement, but failed to do so; and the transfer of the real estate and payment of monies were part of the consideration for execution of the agreement by the village.

In count III, the village alleged that: the agreement required the payment of $50,175 for water and sewer connection privileges under paragraph 6A, of which only $30,105 has been paid, leaving $20,070 still due and owing; the agreement provided that all monies pursuant to paragraph 6A shall be paid no later than 4 1/2 years from the date of the execution of the agreement, or March 11, 1983; the agreement in paragraph 6G provided that the developers will reimburse the village for its attorney fees incurred for "all other services that will be required to be rendered relative to [the] subject property"; the village has pending a bill from a law firm for $665.50 for legal services and obtaining easements for the property and for matters relating to the review of the proposed plat of subdivision; the village has received a bill from a law firm in the amount of $2,964 for representation of the village from March of 1982 until the summer of 1983 regarding legal services in attempting to settle this annexation matter; defendants have failed to pay the village the sum of $3,629.50 for its attorney fees; and the village has sustained damages in the amount of $23,699.50.

Count IV set forth the village's requested entry of a judgment in the amount of $20,070 which is the balance of the $50,175 originally due the village under paragraph 6A of the agreement and, in the event that the judgment is not paid, so much of the real estate should be sold as is necessary to satisfy the judgment.

In count V, the school district requested entry of a money judgment in its favor for $9,450, which it alleged defendants agreed to pay to the village for the school district's use under the agreement.

First Federal filed another section 2-615 motion to strike and dismiss the amended complaint, which the circuit court granted. The village and school district pursue this appeal.

Although First Federal maintains at the threshold of its responses that the village and school district failed to preserve their arguments for appeal, citing Burdin v. Jefferson Trust & Savings Bank (1971), 133 Ill. App.2d 703, 706-07, 269 N.E.2d 340 and Williams v. City of Gibson (1970), 129 Ill. App.2d 431, 433, 263 N.E.2d 138, First Federal overlooks the village and school district's responses to its motion to dismiss the amended complaint, which essentially raised the arguments in the circuit court now presented on appeal. These arguments, therefore, will be considered on their merits.

The village and school district assert that counts I and II of the amended complaint state causes of action for specific performance and were dismissed improperly by the circuit court because the terms of the annexation agreement sought to be enforced are sufficiently clear (Chicago Investment Corp. v. Dolins (1981), 93 Ill. App.3d 971, 974, 418 N.E.2d 59), and they have alleged the satisfaction of all conditions precedent, pursuant to Supreme Court Rule 133(c) (87 Ill.2d R. 133(c)).

• 1 Preannexation agreements, such as the one at issue, whereby a municipality agrees with the record owners of real estate to annex the owner's land, and freeze zoning fees and ordinances in return for contributions of land and money, are authorized by section 11-15.1-2 of the Municipal Code. Pursuant to section 11-15.1-4 of the Municipal Code, similar agreements have been judicially specifically enforced. (Elm Lawn Cemetery Co. v. City of Northlake (1968), 94 Ill. App.2d 387, 237 N.E.2d 345; Long Grove Country Club Estates, Inc. v. Anderson (1977), 47 Ill. App.3d 449, 362 N.E.2d 374; Union National Bank v. Village of Glenwood (1976), 38 Ill. App.3d 469, 348 N.E.2d 226.) The preannexation agreement here, between the village, Ford City and Lamplighter, for the construction of public improvements, conveyance of land, and payment of funds to the school district, is clearly one contemplated and authorized by the statute and cases. Accepting as true for purposes of review all well-pleaded facts and fair inferences which may be drawn from them (Wilczynski v. Goodman (1979), 73 Ill. App.3d 51, 391 N.E.2d 479), counts I and II of the amended complaint state causes of action and the order dismissing them must be reversed.

Authorities relied upon by First Federal (Bissett v. Gooch (1980), 87 Ill. App.3d 1132, 409 N.E.2d 515; Yonan v. Oak Park Federal Savings & Loan Association (1975), 27 Ill. App.3d 967, 326 N.E.2d 773; Besinger v. National Tea Co. (1966), 75 Ill. App.2d 395, 221 N.E.2d 156) are altogether inapposite, since none of them involved annexation agreements such as the one at bar, nor did they proceed under statutory authority, as here. The authorization of preannexation agreements by statute, such as section 11-15.1-1, serves to further important governmental purposes, such as the encouragement of expanding urban areas and to do so uniformly, economically, efficiently and fairly, with optimum provisions made for the establishment of land use controls and necessary municipal improvements including streets, water, sewer systems, schools, parks, and similar installations. This approach also discourages fragmentation and proliferation of special districts. Additional positive effects of such agreements include controls over health, sanitation, fire prevention and police protection, which are vital to governing communities. (See Comment, 1973 U. Ill. L.F. 582.) The ...


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