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12/21/87 In Re Proposed Incorporation of Liberty Lakes (Petitioners

December 21, 1987

IN RE PROPOSED INCORPORATION OF LIBERTY LAKES (PETITIONERS


SUPREME COURT OF ILLINOIS

Seeking to Incorporate Liberty Lakes, Appellants, v.

The Village of Lindenhurst et al., Appellees)

518 N.E.2d 132, 119 Ill. 2d 179, 115 Ill. Dec. 607 1987.IL.1884

Appeal from the Circuit Court of Lake County, the Hon. Harry D. Hartel, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE SIMON delivered the opinion of the court. JUSTICE CUNNINGHAM took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SIMON

The question to be answered here is whether a statute requiring two defined determinations by the county board of certain counties as a precondition to the incorporation of villages represents an unlawful delegation of judicial power. The answer is no.

Petitioners seeking to incorporate the village of Liberty Lakes (incorporators) filed a petition in the circuit court of Lake County to incorporate under section 2-3-5a of the Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 2-3-5a). Incorporators also requested the Lake County board to make certain determinations required by section 2-3-18 of the Code (Ill. Rev. Stat. 1985, ch. 24, par. 2-3-18) concerning the proposed village. While the matter was pending before the county board's planning and zoning committee, the incorporators withdrew their request for the board's determinations. The incorporators then sought a ruling in the circuit court that section 2-3-18 was unconstitutional. The villages of Lindenhurst and Lake Villa and the County of Lake had intervened and opposed the motion. The circuit Judge upheld the statute and dismissed the petition to incorporate. We allowed incorporators' appeal to be brought directly to this court. 107 Ill. 2d R. 302(b).

Consideration of the validity of section 2 -- 3 -- 18 is somewhat obscured by two legislative drafting errors. First, the 1985 edition of the Illinois Revised Statutes actually contains two sections denominated 2 -- 3 -- 18. Only the section added by Public Act 76 -- 676 is at issue here. Second, by its terms, section 2 -- 3 -- 18 comes into play when a petition for incorporation is filed under section 2 -- 3 -- 5. This statutory reference was obviously intended to be to section 2 -- 3 -- 5a, the section under which this petition was filed, not section 2 -- 3 -- 5. Section 2 -- 3 -- 5 only applies to counties of less than 150,000 population, while sections 2 -- 3 -- 5a and 2 -- 3 -- 18 apply only to larger counties. The drafting error was apparently occasioned by the fact that different acts passed on the same day adopted section 2 -- 3 -- 18 and split former section 2 -- 3 -- 5 into two distinct sections (see Pub. Acts 76 -- 676, 76 -- 677, eff. Aug. 7, 1969). In re Petition to Call an Election on the Question of Incorporating the Village of Forest Knoll (1986), 148 Ill. App. 3d 436.

Section 2 -- 3 -- 18 provides:

"In any county of between 150,000 and 1,000,000 population which has adopted an official plan under 'An Act to provide for regional planning and for the creation, organization and powers of regional planning commissions', approved June 25, 1929, as amended, the county board, by resolution, may provide that before the question of incorporating a village under this Division is submitted to the electors in response to a petition filed under Section 2-3-5 or 2-3-10 the county board must first determine that (1) the proposed incorporation is compatible with the official plan for the development of the county, and (2) the lands described in the petition as intended to be embraced in the village constitute a sufficient tax base as will insure the ability of the village to provide all necessary municipal services to its inhabitants. When such a resolution is in effect, the court in which such a petition is filed shall first require a showing that those determinations have been made by the county board. If no such showing is made, the court shall deny the petition. If such a showing is made, the court shall proceed as provided in Section 2-3-6 or 2-3-11, as the case may be. (Ill. Rev. Stat. 1985, ch. 24, par. 2-3-18.)

Lake County is within the prescribed population limits, has adopted an official plan under "An Act to provide for regional planning . . ." (see Ill. Rev. Stat. 1985, ch. 34, pars. 3001, 3006), and has also passed a resolution requiring that a petition to incorporate a village must contain the two statutory determinations by the county board. The only question is whether section 2-3-18 is constitutional.

Incorporators' argument is that the power to make the statutory determinations that the proposed incorporation is compatible with the county's official development plan and that the proposed village will have a sufficient tax base to provide all necessary services is "quasi-judicial" in nature. They then contend that the absence of time constraints on the county board's actions, the vagueness of the statutory standards, the fact that no procedures for discovery or a hearing are included, and the lack of any provision for judicial review render the delegation of this quasi-judicial power unconstitutional, ...


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