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12/07/89 the People Ex Rel. Fred L. v. the Village of North

December 7, 1989

LAKE COUNTY, PLAINTIFF-APPELLANT

v.

THE VILLAGE OF NORTH BARRINGTON ET AL., DEFENDANTS (SUBURBAN NATIONAL BANK OF PALANTINE, AS TRUSTEE, ET AL., INTERVENING DEFENDANTS-APPELLEES); -- THE PEOPLE EX REL.

FRED L. FOREMAN, STATE'S ATTORNEY OF LAKE COUNTY, PLAINTIFF-APPELLEE

v.

THE VILLAGE OF NORTH BARRINGTON, DEFENDANT-APPELLANT (LLOYD RASMUSSEN, HIGHWAY COMMISSIONER OF CUBA TOWNSHIP, LAKE COUNTY, DEFENDANT; SUBURBAN NATIONAL

BANK OF PALATINE, AS TRUSTEE, ET AL., INTERVENING, DEFENDANTS); -- DONALD L. KLASS ET AL., PLAINTIFFS-APPELLANTS

v.

LLOYD RASMUSSEN, HIGHWAY COMMISSIONER OF CUBA TOWNSHIP, LAKE COUNTY, DEFENDANT-APPELLEE (SUBURBAN NATIONAL BANK OF PALATINE, AS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

THE PEOPLE ex rel. FRED L. FOREMAN, STATE'S ATTORNEY OF

Trustee, et al., Intervening Defendants-Appellees; THE VILLAGE OF NORTH BARRINGTON, Amicus Curiae)

Nos. 2-88-1055, 2-89-0003, 2-89-0050 cons.

547 N.E.2d 1327, 191 Ill. App. 3d 544, 138 Ill. Dec. 706 1989.IL.1907

Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Jr., Judge, presiding.

Rehearing Denied January 12, 1990.

APPELLATE Judges:

PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. REINHARD and McLAREN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

This matter concerns a challenge to annexation of vacant property to the Village of North Barrington (Village) and an action against Cuba Township in Lake County wherein the vacant property is located, for failure to vacate a road on the boundary of that property.

In the first of these three consolidated appeals (2-88-1055) Lake County appeals the summary judgment entered on its complaint in quo warranto in favor of the Village of North Barrington and Suburban National Bank of Palatine as trustee under trust No. 5168 and Daniel Light (collectively referred to as developer). The trial court found valid the Village's July 13, 1987, annexation of the developer's property (Grassmere Farm) located at the southeast corner of Routes 22 and 59 in unincorporated Lake County, and the annexation by operation of law (Ill. Rev. Stat. 1987, ch. 24, par. 7-1-1) of a township road known as Scott Road, which is adjacent to the southern boundary line of Grassmere Farm. The court also found the validity of the annexation rendered moot the question concerning a petition to vacate Scott Road.

In the second appeal (No. 2-89-0003), the Village appeals the trial court's denial of its motion for summary judgment filed in the county's quo warrantor proceeding. The Village's motion for summary judgment adopted the ground set forth in the developer's motion for summary judgment but included the additional ground that the Village's subsequent reannexation of Grassmere Farm on April 11, 1988, rendered moot all the issues relating to the validity of the first annexation of the property.

In the third appeal (No. 2-89-0050), the Scott Road homeowners appeal the dismissal of their petition for writ of mandamus seeking to command Lloyd Rasmussen, the Cuba Township highway commissioner in Lake County, to complete proceedings and grant their petition to vacate Scott Road. The petition for writ of mandamus was dismissed as moot in light of the circuit court's finding that the Village's first annexation of Grassmere Farm was valid.

The quo warrantor and mandamus actions (along with the homeowners' complaint for injunctive relief against the developer seeking to prevent the annexation of the subject property which is not involved in this appeal (88-CH-216)) were consolidated in the trial court upon the homeowners' motion asserting that all the causes involved the validity of certain of the Village's ordinances. The developer's motion in this court to consolidate the first and second appeals was granted, as was the homeowners' motion to consolidate their appeal with the first two.

These issues are presented: (1) whether this court has jurisdiction of the Village's appeal; (2) whether the county's and the homeowners' appeals are moot and should be dismissed due to the Village's unchallenged reannexation of the subject property; (3) whether the Village's first annexation of the subject property was invalid because the deed to the subject property was not recorded on the date the petition for annexation was filed with the Village; and (4) whether the homeowners' petition for writ of mandamus was improperly dismissed for mootness.

A chronology of the events preceding the instant appeals is essential. The following is a distillation of the pertinent facts:

June 5, 1986. Developer enters into a contract to purchase the subject property (Grassmere Farm) comprising 125 acres of land in unincorporated Lake County which is contiguous to the Village of North Barrington. Scott Road, a township road, is the southern boundary of the subject property. It separates the subject property on the north from three single-family houses on the south which are owned and occupied by the homeowners appealing dismissal of the petition for writ of mandamus.

December 1, 1986. The Village board and plan commission of North Barrington hold a public hearing to consider a proposed annexation agreement relative to Grassmere Farm. No action on the annexation agreement is taken at this meeting.

June 29, 1987. Homeowners and nine other persons, all legal voters residing in Cuba Township, Lake County, Illinois, file a petition for the vacation of Scott Road adjacent to the homeowners' lots with Lloyd Rasmussen, the Cuba Township Highway Commissioner. The petition is filed pursuant to section 6-301 of the Illinois Highway Code (Ill. Rev. Stat. 1987, ch. 121, par. 6-301 et seq.), covering the laying out, widening, altering or vacating of township and district roads. The petitioners represent that they are the sole owners of all the lots in the Rolling Meadows subdivision adjacent to Scott Road, that the roadway is not needed for public use, that there is no public need, necessity, nor interest in the roadway, and that they are prepared to undertake to maintain the roadway and grant easements for ingress and egress to each parcel presently having an entrance on the roadway. Pursuant to statute (Ill. Rev. Stat. 1987, ch. 121, par. 6-305), the commissioner publishes a notice of public hearing on the petition to be held July 13, 1987, at 3 p.m.

July 1, 1987. Developer closes on the purchase of the Grassmere Farm, and title is conveyed by deed delivered to and accepted by Daniel Light as a beneficiary of Palatine National Bank land trust No. 5168. Light turns the deed over to his attorney for recording of same.

July 3, 1987. Developer files a petition for annexation of Grassmere Farm to the Village of North Barrington pursuant to section 7-1-8 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 7-1-8), which provides, inter alia, that any territory not within the corporate limits of any municipality but which is contiguous to a municipality at the time of annexation may be annexed upon the filing with the municipal clerk of a written petition signed by the "owners of record" of all land within such territory. Inter alia, the legal description of the property to be annexed includes the portion of Scott Road which is the subject of the homeowners' petition to vacate. (Section 7-1-1 of the Municipal Code provides that when territory contiguous to a municipality is annexed, the new boundary "shall extend to the far side of any adjacent highway . . . even though [such highway is] not included in the legal descriptions set forth in the petition for annexation." (Ill. Rev. Stat. 1987, ch. 24, par. 7-1-1.)) The annexation petition is signed by Palatine National Bank as trustee under its trust No. 5168, which states therein that it "constitutes the sole owner of record of all land in the [subject] territory." The annexation petition is supported by an affidavit dated July 3, 1987, signed by developer Daniel Light in which he identifies himself as a beneficial owner of trust No. 5168, states he read the annexation petition subscribed to by the bank and that the facts stated therein are true.

Per an affidavit of the North Barrington Village clerk included in the record, notice is given to the Cuba Township board and Cuba Township highway commissioner that the proposed annexation is to be ...


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