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11/10/94 PETITION FOR ANNEXATION CERTAIN PROPERTY

November 10, 1994

IN RE: THE PETITION FOR ANNEXATION OF CERTAIN PROPERTY TO THE VILLAGE OF PLAINFIELD, ILLINOIS, PETITIONERS-APPELLEES,
v.
VILLAGE OF BOLINGBROOK, PAUL CLARKSON, JANICE CLARKSON, ALICE FERN BROWN AND IONE ELIZABETH BUSHNELL, OBJECTORS-APPELLANTS.



Appeal from the Circuit Court for the 12th Judicial Circuit, Will County, Illinois. No. 93-MC-5953. Honorable Thomas Ewert, Judge, Presiding

Rehearing Denied December 2, 1994. Released for Publication December 2, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Peg Breslin, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Barry

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT.

Objectors appeal from the decision of the circuit court finding that a petition to annex land was valid. We affirm.

I. FACTS

Five petitioners filed a petition to annex territory to the Village of Plainfield, Illinois (Plainfield). The petition alleged that the petitioners were more than 51% of the owners of record of the territory sought to be annexed; that there were no electors residing in the territory; that the territory was not situated within the limits of any municipality; and that the territory was contiguous to the Village of Plainfield. The petition was signed by the attorney representing the petitioners. Attached to the petition was an affidavit containing the same statements found in the petition. The affidavit was signed by all five petitioners. The petitioner's attorney also attached an affidavit of his own stating that the petitioners were a majority of the property owners of record and no electors lived within the territory.

The Village of Bolingbrook (Bolingbrook), Paul Clarkson, Janice Clarkson, Alice Fern Brown and Ione Elizabeth Bushnell asserted an interest in the property to be annexed and objected to the petition. The objectors asserted that an elector who did not sign the annexation petition resided on their land; that the owners of fee title underlying the roads contained within the territory to be annexed should be considered owners of record, as should the Village of Bolingbrook by virtue of its ownership of an easement for an outfall sewer for a treatment plant under construction; and that the territory was not contiguous to the Village of Plainfield. On the day of the hearing in the circuit court, the objectors also asserted that the petition was insufficient on its face and requested that the petition should be dismissed.

At the hearing in the circuit court the evidence showed, inter alia, that some of the objectors owned the parcel designated as "832186." The portion of this parcel located west of Naperville Road was included in the territory to be annexed; the eastern portion of parcel "832186" was not included within the annexation petition. Also it must be noted that after the filing of the instant petition, some of the objectors filed a voluntary petition to annex property known as the Clarkson-Steigle property to the Village of Bolingbrook. Additionally, the evidence indicated that objectors owned fee title under some of the roadways included in the instant petition; also, the Village of Bolingbrook owned a small sewer easement of which 25 feet is included in the territory to be annexed. For the sake of clarity, a map of the proposed annexation has been appended to this opinion.

The trial court found that the petition was valid. The objectors then filed this appeal.

II. ANALYSIS

As aforesaid, on appeal, the objectors assert (a) the petition was insufficient on its face and therefore the motion to dismiss should have been granted; (b) the territory was not contiguous to Plainfield; (c) the circuit court improperly determined the number of electors residing in the territory; and (d) the circuit court erred in finding that fee title owners of roadways and the Village of Bolingbrook were not owners of record.

A. SUFFICIENCY OF THE PETITION

Initially, the objectors assert that the trial court erred in refusing to dismiss the petition. Objectors assert that the petition failed to identify the property which petitioners claimed to own in the territory, and the petition did not state what number of signatures was necessary to form a majority of owners of record. Absent these allegations, the objectors argue, the petition should have been dismissed, and thereafter the Clarkson-Steigle petition to annex to Bolingbrook would have assumed priority. We disagree.

Appellants-objectors' argument is premised upon the decision of the Illinois Appellate Court, Second District, in In Re Petition to Annex Certain Property to the City of Wood Dale (1993), 244 Ill. App. 3d. 820, 183 Ill. Dec. 343, 611 N.E.2d 606. In Wood Dale, the objectors complained that the petition for annexation was deficient. The appellate court agreed, stating,

"* * * the petition has signatures, but contains no specific facts regarding the addresses or residences of the signatories and whether they are in fact registered voters residing within the territory. In the absence of supporting facts, the designations "owner," or "property owner," or "voter" are insufficient to provide the facts needed to satisfy the statute. The petition does not state what number of signatures is required to form a majority and what number qualified in any category. There is no circulator's certification of the signatures. While a conclusory affidavit itself may be sufficient if it tracks the ...


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