APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
513 N.E.2d 438, 160 Ill. App. 3d 302, 112 Ill. Dec. 24 1987.IL.1154
Appeal from the Circuit Court of Lake County; the Hon. John L. Hughes, Judge, presiding.
Rehearing Denied October 7, 1987.
JUSTICE WOODWARD delivered the opinion of the court. LINDBERG, P.J., and HOPF, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD
Plaintiffs, John L. Kaltsas, Fred Engbrecht, Diana Engbrecht, Bruce L. Felknor, Edith J. Felknor, James E. Ward, Kevin Calahan, and Gabrielle Calahan, appeal from a trial court order dismissing their complaint for failure to state a cause of action.
Plaintiffs are residents of an area located in unincorporated Lake County, Illinois. They sought to incorporate the area as a village to be known as Forest Knolls. The area is more than four square miles and contains more than 2,500 residents but less than 7,500 residents. Lake County has a population of more than 150,000. Based upon those facts, the proposed incorporation is controlled by section 2-3-5a of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 2-3-5a), which provides in pertinent part as follows:
"If the area contains fewer than 7,500 residents and lies within 1 1/2 miles of the limits of any existing municipality, the consent of that municipality must be obtained before the area may be incorporated." (Ill. Rev. Stat. 1985, ch. 24, par. 2-3-5a.)
The area in question here is within 1 1/2 miles of the city of Park City and the defendants, city of North Chicago, city of Lake Forest, city of Waukegan, village of Lake Bluff, village of Green Oaks, and village of Mettawa.
On November 18, 1985, pursuant to section 2-3-5a, plaintiffs filed a petition with the circuit clerk of Lake County to call an election on the question of incorporating the village of Forest Knolls. However, while Park City consented to the proposed incorporation, the defendants refused to consent. On January 2, 1986, on motions for judgment on the pleadings filed by the defendants, the trial court dismissed the petition. The plaintiffs appealed, and on review by this court, we reversed the trial court's decision on the basis that the trial court had not complied with section 2-3-18 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 2-3-18) and, therefore, was premature in dismissing the petition on the basis of failure to secure the necessary consents. In re Petition to Call an Election (1986), 148 Ill. App. 3d 436.
In the meantime, on April 2, 1986, the plaintiffs filed the present complaint against the same defendants, setting forth the facts surrounding the dismissal of the petition to incorporate and alleging in pertinent part as follows:
"26. By failing and refusing to consent to the incorporation of Forest Knoll pursuant to the municipal consent provision of section 2 -- 3 -- 5a, which is void, invalid and unconstitutional on its face, Defendants have deprived Plaintiffs of their constitutionally protected rights to vote and to petition and of essential government services and have caused a diminution of Plaintiff's property values in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. sec. 1983."
The relief sought by the plaintiffs included a finding that section 2-3-5a was unconstitutional, that the consent of the surrounding municipalities was unnecessary, and that the trial court should proceed with the hearing authorized ...