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07/23/87 In Re Proposed Incorporation of Village of Beach Park

July 23, 1987

IN RE PROPOSED INCORPORATION OF VILLAGE OF BEACH PARK, LAKE


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

COUNTY (Waukegan Port District et al., Objectors and

Intervenors-Appellants, v.

Petitioners of Proposed Village of Beach Park,

Petitioners-Appellees)

511 N.E.2d 858, 158 Ill. App. 3d 207, 110 Ill. Dec. 681 1987.IL.1049

Appeal from the Circuit Court of Lake County; the Hon. Wallace B. Dunn, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. HOPF and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

The Waukegan Port District and the city of Waukegan appeal pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) from orders of the circuit court dismissing their objections to a petition to incorporate the village of Beach Park and denying their motions to intervene in the incorporation proceeding.

The Port District contends that the village incorporation statute in issue (Ill. Rev. Stat. 1985, ch. 24, par. 2-3-5a) is unconstitutional as it arbitrarily fails to require the consent of or the right to object by existing nearby municipalities in order to incorporate a village containing more than 7,500 residents, thus denying the Port District fundamental due process. The District also contends that the trial court erred in denying it intervention in the incorporation proceeding pursuant to section 2-408 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-408).

The city of Waukegan contends that it has a right to file objections or to intervene in the incorporation of proceedings of a village adjacent to its corporate boundaries.

On March 13, 1986, a petition containing the names of more than 250 persons was filed in the circuit court pursuant to section 2-3-5a of the Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 2-3-5a). The petition alleged, inter alia, that the area described in an attached exhibit was sought to be incorporated as the village of Beach Park and was contiguous territory of at least four square miles, no part of which lay within any existing city or village. It also alleged that petitioners were electors who reside in the area, which has approximately 12,000 residents, more than 2,500 of whom reside in permanent dwellings. The petition prayed that the court rule that the area proposed to be incorporated is a village in fact and certify the question of incorporation for submission to the electors residing therein at the general election held in November 1986. The trial court set July 1, 1986, for a hearing of the incorporation petition.

Prior to the hearing date, on June 24, 1986, the Port District filed objections to the petition (termed alternatively as a complaint for declaratory judgment) in which it alleged the petition was defective in certain respects. It also asserted that section 2 -- 3 -- 5a of the Municipal Code was illegal and unconstitutional as applied to the petition, in violation of the fourteenth amendment to the United States Constitution and section 2 of article 1 of the Illinois Constitution as it deprived the Port District of due process. The Port District alleged it was entitled to notice and participation in planning the proposed village; to be permitted to consent to or reject the proposed village, as it would had the population of the proposed village been less than 7,500; and that such incorporation was contrary to certain zoning regulations adopted ...


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