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07/27/87 the People Ex Rel. the v. the Village of Buffalo

July 27, 1987

THE PEOPLE EX REL. THE VILLAGE OF LONG GROVE, PLAINTIFF-APPELLANT

v.

THE VILLAGE OF BUFFALO GROVE, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

513 N.E.2d 408, 160 Ill. App. 3d 455, 111 Ill. Dec. 965 1987.IL.1062

Appeal from the Circuit Court of Lake County; the Hon. Lawrence D. Inglis, 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

This is an appeal by the plaintiff, village of Long Grove, from a judgment entered by the circuit court in favor of the defendant, village of Buffalo Grove, in a proceeding in quo warrantor involving competing annexations by the two villages. On appeal, Long Grove contends that the Buffalo Grove annexation is invalid: (1) as Long Grove had previously annexed part of the territory sought to be annexed by Buffalo Grove; (2) for failure of the petition for annexation to disclose the beneficial owners under a land trust; (3) for including within the description of property sought to be annexed certain highways within the corporate boundaries of the plaintiff; and (4) for lack of contiguity of the territory sought to be annexed to Buffalo Grove.

Long Grove's proceeding in quo warrantor against Buffalo Grove challenging its purported annexation of the territory in question proceeded to bench trial on May 5, 1986, and the facts are not in dispute. The record discloses that in 1968, the village of Long Grove purchased a five-acre tract of land in unincorporated Lake County, where it operated a sewer treatment plant until 1971. On March 13, 1973, Long Grove annexed two tracts of land located south and north of the sewer plant site (Otis annexations), and then purported to annex the sewer plant site. However, the ordinance annexing the sewer plant site was never recorded, and its location at the time of trial was unknown. The trial court refused to admit into evidence both an unexecuted carbon copy of the purported 1973 ordinance and a photocopy which had been executed and recorded in October 1985.

On October 1, 1985, the owners of a nearby 90-acre tract of land, which was not itself contiguous to Buffalo Grove, filed a petition to annex to that village and added to their land for annexation the five-acre sewer site tract owned by the village of Long Grove, which was contiguous to Buffalo Grove. The total 95-acre tract sought to be annexed is almost completely surrounded by the village of Long Grove except for an approximately 600-foot common boundary with the village of Buffalo Grove along the creek line on the east perimeter of the sewer plant site. The petition states that the petitioner's property was owned in part by two land trusts, but it does not disclose the owners of the beneficial interests. The petition included a plat showing the territory to be annexed as including the south one-half of the right-of-way of Route 53 on the north boundary of the subject property, and the east one-half of the right-of-way of Schaefer Road on its west boundary. Evidence at the trial disclosed that at the time the petition was filed, the zoning maps of both Long Grove and Buffalo Grove depicted Route 53 and Schaefer Road as completely within the corporate boundaries of Long Grove, and a county map depicted Route 53 as completely within unincorporated Lake County. See attached plat.

On October 29, 1985, Long Grove adopted two ordinances, No. 85 -- 0 -- 23, by which it sought to ratify its 1973 annexation of the five-acre sewer plant site, and No. 85 -- 0 -- 24, by which it reannexed the site; both ordinances were recorded on October 30, 1985. On November 4, 1985, Buffalo Grove adopted an ordinance annexing the total 95-acre tract, which it recorded on November 13, 1985.

The circuit court determined that the purported 1973 Long Grove annexation ordinance was invalid. The court also found that the 1985 Long Grove annexation ordinance was valid, but had been preempted by the prior filing of the petition for annexation to the village of Buffalo Grove on October 1, 1985, whereupon the court entered judgment in favor of Buffalo Grove and this appeal followed.

Long Grove first contends that its annexation of the five-acre sewer plant site in 1973 was valid and that Buffalo Grove could not thereafter annex the 95-acre tract which included that territory. At trial, Long Grove sought to prove that on March 13, 1973, it had adopted an ordinance annexing the sewer site which it owned; however, it could neither account for nor produce the original ordinance, and the trial court refused to admit into evidence purported copies tendered by Long Grove. The issue whether the circuit court erred in its evidentiary ruling is raised for the first time in Long Grove's reply brief and, therefore, has been waived. 107 Ill. 2d R. 341(e)(7).

The validity of the 1973 annexation by Long Grove turns on the undisputed fact that the ordinance was never recorded. A municipality has no power to extend its boundaries unless and except in the manner authorized by the legislature. (City of East St. Louis v. Touchette (1958), 14 Ill. 2d 243, 249, 150 N.E.2d 178; People ex rel. City of Des Plaines v. Village of Mount Prospect (1975), 29 Ill. App. 3d 807, 813, 331 N.E.2d 373.) The relevant annexation statute directs that a municipality annexing its own property record a copy of the ordinance to that effect. (Ill. Rev. Stat. 1973, ch. 24, par. 7-1-9.) In the present case, it was not shown that Buffalo Grove received notice of the 1973 annexation by Long Grove, and considering its subsequent attempt to annex the same territory, we cannot say that failure to record the ordinance did not prejudice the rights of others. (See Village of North Barrington v. Village of Lake Barrington (1972), 8 Ill. App. 3d 50, 288 N.E.2d 242, appeal denied (1973), 53 Ill. 2d 605.) We conclude that the circuit court correctly found that the 1973 ordinance was invalid.

Long Grove also contends that the 1973 annexation of the sewer site was validated by the adoption of its ordinance No. 85 -- 0 -- 23 on October 29, 1985, and its subsequent recordation of that ordinance on October 30, 1985. Ordinance No. 85 -- 0 -- 23 purported to readopt and ratify the 1973 ordinance, and the issue is raised whether Long Grove could retroactively validate its attempted annexation of the sewer plant site so as to defeat the priority obtained in the interim by the filing of a petition to annex the property to the village of Buffalo Grove. While there are means by which a public body may amend its records in cases of error or omissions (People ex rel. City of North Chicago v. City of Waukegan (1983), 116 Ill. App. 3d 88, 94, 451 N.E.2d 293, appeal denied (1983), 96 Ill. 2d 550), it is not necessary to address whether ordinance No. 85 -- 0 -- 23 had this effect. As the 1973 ordinance was never recorded, it could not relate back in any event. Moreover, this question is moot, as on the same day, Long Grove adopted ordinance No. 85 -- 0 -- 24 reannexing the sewer site property, which it recorded on October 30. The trial court found that this accomplished a valid annexation and no cross-appeal has been taken from that judgment.

Long Grove also contends that it had jurisdiction over the sewer plant site by virtue of de facto annexation, since it owned the property and had designated it as open space under its zoning ordinance since 1973. The record shows that the sewer plant was dismantled in 1971, and the property has remained vacant and devoted to no use since then. In People ex rel. Knaus v. Village of Hinsdale (1969), 111 Ill. App. 2d 368, 374, 250 N.E.2d 309, appeal denied (1970), 42 Ill. 2d 584, the court held that long continued use and public acquiescence may give rise to a finding of de facto annexation; however, in Knaus, the subject property was improved and shared in ...


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