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04/07/88 the Village of Kildeer, v. the Village of Lake Zurich

April 7, 1988

THE VILLAGE OF KILDEER, PLAINTIFF-APPELLEE

v.

THE VILLAGE OF LAKE ZURICH, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

521 N.E.2d 1252, 167 Ill. App. 3d 783, 118 Ill. Dec. 559 1988.IL.496

Appeal from the Circuit Court of Lake County; the Hon. Fred A. Geiger, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

Plaintiff, the Village of Kildeer, brought this quo warranto action to challenge an annexation ordinance adopted by defendant, the Village of Lake Zurich. Lake Zurich's ordinance purported to annex territory included in annexation ordinances previously filed by Kildeer. Lake Zurich appeals from the trial court order which denied its motion for summary judgment and granted Kildeer's motion for summary judgment. Defendant contends that the trial court Disposition was error because (1) Kildeer lacked standing to maintain a private quo warrantor action, (2) the court failed to determine the validity of Kildeer's annexation ordinances, (3) Kildeer's ordinances were invalid, and (4) Lake Zurich's own ordinance was valid. Upon review we find that this matter must be reversed and remanded.

In February 1986 Kildeer, acting pursuant to section 7-1-2 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 7-1-2), filed three separate ordinances seeking to annex certain territory. The trial court found the ordinances valid and set the matters for referenda. On July 21, 1986, Lake Zurich adopted an ordinance annexing territory which partially overlapped Kildeer's proposed annexation. Lake Zurich adopted its ordinance pursuant to section 7-1-8 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 7-1-8), which provides for a voluntary petition for annexation by property owners to the proper corporate authorities.

During September and October 1986, in response to motions by affected property owners, the trial court vacated all three of the March 1986 orders which had approved Kildeer's ordinances and set them for referenda. Kildeer appealed and the cases were consolidated.

In December 1986, while its ordinance cases were pending before this court, Kildeer filed an application for leave to file the instant complaint. Lake Zurich moved for judgment on the application alleging that plaintiff lacked standing because its ordinances were invalid. In March 1987 Kildeer was granted leave to file its complaint. Instead of ruling on defendant's motion for judgment on the application, the court indicated that the pending motion would stand as Lake Zurich's motion for summary judgment. Subsequently, the parties formally filed cross-motions for summary judgment. Lake Zurich again challenged Kildeer's standing to bring the quo warrantor action alleging that its annexation ordinances were invalid.

After a hearing on the motions the trial court found that Lake Zurich's annexation was invalid because the Kildeer annexation ordinances had been previously filed, were as yet undefeated, and thus enjoyed priority. Kildeer's motion for summary judgment was granted and Lake Zurich's was denied. Lake Zurich then filed this timely appeal.

During the time for filing briefs in the instant matter, we decided the consolidated cases involving Kildeer's ordinances. In two of the cases we affirmed the trial court's vacation of its prior orders and remanded to the lower court for further proceedings. In the third case we reversed the trial court and remanded with direction to allow Kildeer to answer the property owners' motion to vacate. (In re Petition of the Village of Kildeer to Annex Certain Property (1987), 162 Ill. App. 3d 262, 514 N.E.2d 1020.) Kildeer has now been granted leave to appeal those matters to our supreme court. In re Petition of the Village of Kildeer to Annex Certain Property (1988), 118 Ill. 2d 544.

On appeal in the instant case Lake Zurich again contends, as a threshold issue, that plaintiff lacks standing to seek relief in a quo warranto action. This contention is based on defendant's argument that Kildeer's ordinances were invalid at the outset and, therefore, Kildeer has no interest whatsoever in the territory annexed by Lake Zurich. Absent an interest, defendant argues, Kildeer has no standing. Defendant insists that the trial court should have determined the validity of Kildeer's ordinances and, assuming they were held invalid, found that Kildeer lacked standing and dismissed its suit. Kildeer responds that the trial court properly exercised its discretion in granting Kildeer leave to file a quo warrantor complaint since the village's prior annexation proceedings were still pending and had neither been terminated nor defeated.

We cannot agree with defendant that Kildeer lacks standing on the basis defendant asserts. Standing to bring a quo warrantor action cannot be made to depend upon resolution of an issue raised within the quo warrantor action itself. On the contrary, a plaintiff's standing to sue must be determined from the allegations of his complaint and as of the time the action is commenced. (People ex rel. Lee v. Kenroy, Inc. (1977), 54 Ill. App. 3d 688, 692, 370 N.E.2d 78.) Thus, a party either has standing at the time the suit is brought or it does not. In this case defendant has raised the issue of the validity of Kildeer's ordinances in response to the quo warrantor complaint. Defendant now asks us to resolve that issue and then apply our Conclusion to the question of plaintiff's standing. This we cannot do. If plaintiff lacked standing to bring its suit in the first place, questions about its ordinances could never be reached.

Plaintiff's standing in this case does not appear to present a real issue. It is well established that a city whose territory has allegedly been annexed by another city has a sufficient interest to give it standing to initiate a quo warrantor action. (People ex rel. Village of Long Grove v. Village of Buffalo Grove (1987), 162 Ill. App. 3d 340, 345, 515 N.E.2d 438; People ex rel. City of North Chicago v. City of Waukegan (1983), 116 Ill. App. 3d 88, 92-93, 451 N.E.2d 293.) While the territory claimed to be annexed by Lake Zurich in the present case did not include part of the incorporated Village of Kildeer, it is undisputed that Kildeer had adopted and filed ordinances seeking to annex part of that same territory. It is also undisputed that Kildeer initiated its annexation proceedings several months before Lake ...


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