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10/20/87 In Re Petition of the Village of Kildeer To Annex Certain

October 20, 1987

IN RE PETITION OF THE VILLAGE OF KILDEER TO ANNEX CERTAIN


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

PROPERTY (The Village of Kildeer,

Petitioner-Appellant and Cross-Appellee, v.

Robert Schwake et al., Objectors-Appellees and

Cross-Appellants)

514 N.E.2d 1020, 162 Ill. App. 3d 262, 113 Ill. Dec. 108 1987.IL.1566

Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, the Hon. Fred Geiger, Jr., and the Hon. John Hughes, Judges, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

In February 1986, petitioner-appellant, the village of Kildeer (Kildeer), adopted three separate ordinances to initiate three separate annexation proceedings. Each ordinance was filed before a different Lake County circuit Judge. In March 1986, each Judge entered an order finding the ordinance pending before him to be valid and setting the matters for referenda on the November 4, 1986, election.

In August 1986, certain property owners, appellees herein (objectors), filed a motion in each case, pursuant to section 2-1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401), to vacate the orders approving the ordinances. Each trial Judge granted the motion to vacate his prior order approving the ordinance, and Kildeer appeals. We affirm the orders Kildeer challenges in appeal numbers 2-86-0997 and 2-86-1011, but reverse and remand in number 2-86-0989 so that Kildeer may file an answer.

Cross-appeals have also been filed by certain of the objectors. Kildeer has moved to strike the notice of cross-appeal in number 2 -- 86 -- 0989, which motion was ordered taken with the case. For reasons set forth below, we grant the motion, but will consider the cross-appeal in number 2 -- 86 -- 1011.

The proposed annexations form a hollow quadrilateral shape surrounding much of the property owned by objectors and also annexing to Kildeer portions of the objectors' property. The Kildeer village president, in case numbers 2 -- 86 -- 0997 and 2 -- 86 -- 1011, indicated that the shape of the proposed annexation was designed to prevent the neighboring municipality of Lake Zurich from annexing and rezoning objectors' property. His testimony also indicated that the annexation was divided into three ordinances so that no one ordinance would annex more than 10 acres of any individual property owner's land.

The notices of hearing on the ordinances, required by section 7-1-2 of the Illinois Municipal Code (Municipal Code) (Ill. Rev. Stat. 1985, ch. 24, par. 7-1-2), were published separately in the Chicago Sun-Times on March 3, 6, and 7, 1986. It appears that Kildeer had never previously published legal notices in the Sun-Times, but had instead used local newspapers for that purpose. No objections were filed prior to the hearings, and in each case an order was entered approving the ordinance and setting it for referendum in November 1986. The orders were entered on March 20, 24, and 26, 1986.

On August 11, 12, and 14, the affected property owners filed a motion in each case under section 2-1401 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401) asking the courts to vacate the orders approving the ordinances. Each motion, with accompanying affidavits, alleged that the objectors had not learned of the pending annexations until July 5, 1986, when they were so informed by employees of Lexington Development Company. Lexington was the contract purchaser of one of the affected properties.

The motions alleged that Kildeer had concealed the existence of the ordinances in several ways, including publication of the notices of hearings in the Sun-Times rather than local papers. The motions also complained that the legal descriptions contained in the notices were indecipherable to laymen and that no map of the proposed annexations was ever provided by Kildeer, even after Lexington had filed a Freedom of Information request and even though Kildeer's counsel possessed such maps. The motions alleged that objectors were forced to hire a surveyor to ascertain the effect of the ordinances and that the surveyor had determined that each ordinance would annex small portions from tracts of objectors' land in excess of 10 acres.

The affidavit of a Lexington employee indicated that he first learned of the pending annexations when, at a June 16, 1986, meeting of the Lake Zurich board held to discuss annexation of the affected territory, the village clerk of Kildeer read a prepared statement advising that Kildeer had annexation proceedings in progress. The clerk stated she was not authorized to comment further, and no description of the affected property was given. It also appears that, on March 13, 1986, prior to the hearings on the validity of the ordinances, the same clerk had attended a meeting of the Lake Zurich Plan Commission which had met to discuss rezoning and annexation of the affected property. On orders of the Kildeer village president, the clerk remained silent throughout the meeting.

Kildeer moved to dismiss each section 2 -- 1401 motion, but Kildeer's motions were denied. Hearings were held in September and October 1986, on the section 2 -- 1401 motions, and in each case the trial court vacated its prior order approving the ordinance.

Kildeer first argues that a section 2-1401 motion was not a remedy available to movants. Kildeer contends that, since it had technically complied with the notice requirements of section 7-1-2 of the Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 7-1-2), the objectors were required to file any objections not less than five days before the hearings on the validity of the ordinances. Kildeer concludes that a section 2-1401 motion cannot be used to circumvent the statutory deadline for filing objections, citing In re Petition to Annex Certain Territory to Village of Mettawa (1961), 33 Ill. App. 2d 38. The court there strictly followed the language of the statute and disallowed late-filed objections, stating, "An orderly procedure has been outlined by the General Assembly and the meaning of the statute is clear." In re Petition to Annex Certain Territory to Village of Mettawa (1961), 33 Ill. App. 2d 38, 46.

Objectors respond that their objections were not time barred for two reasons. Objectors first argue that section 7-1-3 of the Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 7-1-3), which sets forth the deadline for objections, applies only to the specific objections set forth therein. That section provides:

"After the filing of the petition but not less than 5 days prior to the date fixed for the hearing, any interested person may file with the circuit clerk his objections (1) that the territory described in the petition or ordinance, as the case may be, is not contiguous to the annexing municipality, (2) that the petition is not signed by the requisite number of electors or property owners of record, (3) that the description of the territory contained in the petition or ordinance, as the case may be, is inadequate, or (4) that the objector's land is located on the perimeter of such territory, that he does not desire annexation, and that exclusion of his land will not destroy the contiguity of such described property with the annexing municipality." Ill. Rev. Stat. 1985, ch. 24, par. 7-1-3.

Objectors' objections did not pertain to those set forth in section 7 -- 1 -- 3, but rather they objected to the ordinances on the grounds that: (1) more than 10 acres were annexed without the owner's consent in violation of section 7 -- 1 -- 2; (2) the ordinances illegally annexed parcels of less than 10 acres carved from property in excess of 10 acres; and (3) the publication of notice failed to comply with the statutory requirements. Since their specific objections are not included in section 7 -- 1 -- 3, objectors argue that the time limitation applicable to the listed objections does not apply to their objections.

Objectors' first argument is not persuasive. Under the statutory scheme, all possible objections are to be presented at the section 7 -- 1 -- 4 hearing. Section 7 -- 1 -- 4 specifically provides:

"The cause shall be heard without further pleadings. At the hearing the objector may be heard ...


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