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10/20/88 In Re Petition of the Village of Kildeer To Annex Certain

October 20, 1988

IN RE PETITION OF THE VILLAGE OF KILDEER TO ANNEX CERTAIN


SUPREME COURT OF ILLINOIS

TERRITORY (The Village of Kildeer, Appellant, v.

Robert Schwake et al., Appellees)

530 N.E.2d 491, 124 Ill. 2d 533, 125 Ill. Dec. 333 1988.IL.1546

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County, the Hons. Jack Hoogasian, Fred Geiger, Jr., and John L. Hughes, Judges, presiding.

APPELLATE Judges:

CHIEF JUSTICE MORAN delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

In three separate proceedings in the circuit court of Lake County (86-MC-2, 86-MC-3, and 86-MC-4), the Village of Kildeer (Kildeer) petitioned to annex certain unincorporated territories pursuant to the annexation provisions of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 7-1-1 et seq.). The three petitions were assigned to three different circuit court Judges. In March 1986, each circuit court Judge approved the annexation ordinance pending before him and ordered a referendum for November 4, 1986. (Ill. Rev. Stat. 1985, ch. 24, pars. 7-1-4, 7-1-6.) In August 1986, the American National Bank as trustee, the Mount Prospect State Bank as trustee, and affected property owners (objectors) filed in each case a verified petition, together with supporting affidavits, to vacate the three orders pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401). The petitions allege, inter alia, that Kildeer adopted invalid annexation ordinances and caused improper notice of each hearing to be published.

In each of the three proceedings, the circuit court granted objectors' petition to vacate. However, in 86 -- MC -- 3 and 86 -- MC -- 4, the circuit court held that Kildeer complied with the statutory notice requirements. Furthermore, in 86 -- MC -- 3, the circuit court did not allow Kildeer the opportunity to answer the motion to vacate. In 86 -- MC -- 2, the circuit court held that although Kildeer technically complied with the statutory notice requirement, notice was inadequate as to objectors because it was designed to circumvent the purpose of the statute.

Kildeer appealed all three of the decisions granting the petitions to vacate. Objectors cross-appealed the findings in 86 -- MC -- 3 and 86 -- MC -- 4 that Kildeer complied with the statutory notice requirement. The appellate court consolidated the three causes.

In 86 -- MC -- 4, the appellate court affirmed the petition to vacate and reversed the decision regarding notice. It held that although Kildeer technically complied with the statutory notice requirement, the notice was inadequate as to objectors. In 86 -- MC -- 2, the appellate court affirmed the decision in its entirety. In 86 -- MC -- 3, the appellate court reversed and remanded the case in order to allow Kildeer the opportunity to file an answer. The appellate court instructed the circuit court to conduct a new evidentiary hearing on the petition only if Kildeer's answer alleges facts controverting the central allegations of objectors' section 2 -- 1401 petition. The appellate court did not rule on the cross-appeal in 86 -- MC -- 3 because it was not timely filed. (162 Ill. App. 3d 262.) We granted Kildeer's petition for leave to appeal (107 Ill. 2d R. 315).

The issues presented on review are: (1) whether an interested party can petition to vacate, pursuant to section 2-1401, a final order approving an annexation ordinance under section 7-1-4 of the Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 7-1-4); and (2) if so, whether the vacation of each of the final orders was a proper exercise of the circuit court's discretion.

The record reveals the following uncontroverted facts. Kildeer filed three petitions to annex certain unincorporated territories on February 26, 1986. The petitions had been initiated by three municipal ordinances. The petitions were thereafter assigned to separate circuit court Judges. Each Judge was unaware of the petitions pending before the other two Judges. Kildeer then caused a separate notice to be published in the Chicago Sun-Times for each hearing. Notice was published on March 3, 1986, for 86 -- MC -- 4; March 6, 1986, for 86 -- MC -- 3; and March 7, 1986, for 86 -- MC -- 2. None of the objectors were aware of the notices and none appeared at the subsequent hearings. Consequently, on March 20, 24 and 25, 1986, in 86 -- MC -- 4, 86 -- MC -- 3 and 86 -- MC -- 2, respectively, each Judge approved the ordinance pending before him and ordered a referendum for November 4, 1986.

The three ordinances, taken together, form a hollow, irregular rectangle and embrace certain properties which lie in an unincorporated area between the Village of Kildeer and the Village of Lake Zurich. The relevant properties are known as the "Schwake property," which totals approximately 117 acres; the "Grethe property," which totals approximately 60 acres; and the "Riley property," which totals approximately 12 acres. The three ordinances include portions of these properties, while the remaining portions of these properties fall inside and around the rectangle. In 86 -- MC -- 2, the property described in the ordinance is divided into six parcels: parcels 2 and 3 encompass a portion of the Schwake property, parcels 4 and 6 encompass a portion of the Grethe property, and parcel 5 encompasses a portion of the Riley property. In 86 -- MC -- 3, the property described in the ordinance is divided into eight parcels: parcels 2, 3, 4, 5 and 7 encompass a portion of the Schwake property and parcel 8 encompasses a portion of the Grethe property. In 86 -- MC -- 4, the property described in the ordinance is divided into five parcels: parcel 4 encompasses a portion of the Schwake property. The remaining parcels are not relevant for the purposes of this review. The map appended at the end of this opinion is demonstrative.

On August 11, 12 and 14, 1986, in 86 -- MC -- 3, 86 -- MC -- 2 and 86 -- MC -- 4, respectively, objectors filed their petitions to vacate each of the orders.

The following facts were adduced at the three hearings on the petitions to vacate. Jack Squardo, the president of the Village of Kildeer, testified that he met with Henry Paulus, the president of the Village of Lake Zurich, in February of 1986 to discuss rumors that Lake Zurich was planning to annex the Schwake and Grethe properties. Squardo stated that he then convened with the counsel for Kildeer to discuss Lake Zurich's interest in the unincorporated area, and at that meeting, they drew a rough sketch on a cocktail napkin of a possible annexation by Kildeer. He further testified that he then retained Dean R. Crouse and Associates to prepare plats of annexation of the disputed areas. Once the plats were completed, he called a special meeting of the Kildeer board of trustees for February 22, 1986. After an executive session in which they discussed Lake Zurich's interest in the Schwake property, Kildeer voted on and passed its three annexation ordinances.

Squardo also testified that it was his decision to publish notice of each hearing in the Chicago Sun-Times. He stated that Kildeer customarily published its notices in the Frontier Enterprise and the Lake Zurich Herald, and it had never before published any notice in the Chicago Sun-Times.

Thomas Walsh, district manager of the circulation department of the Chicago Sun-Times, testified, on behalf of Kildeer, that the circulation of the Sun-Times was 55 copies per day in Kildeer and 415 copies per day in Lake Zurich.

Delmar Hosler, village administrator of Lake Zurich, testified that as part of his duties he monitored the local newspapers for legal notices. He stated that, to the best of his knowledge, Kildeer never published any notice in any of the Chicago newspapers. He further testified that, as a matter of procedure, he would inform the appropriate ...


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