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09/22/95 PETITION TO INCORPORATE VILLAGE GREENWOOD

September 22, 1995

IN RE PETITION TO INCORPORATE THE VILLAGE OF GREENWOOD (CHICAGO TITLE & TRUST COMPANY, AS TRUSTEE, RESPONDENT-APPELLANT AND CROSS-APPELLEE,
v.
THE VILLAGE OF GREENWOOD, PETITIONER-APPELLEE AND CROSS-APPELLANT).



Appeal from the Circuit Court of McHenry County. No. 94-MC-5. Honorable Haskell M. Pitluck, Judge, Presiding.

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Bowman delivered the opinion of the court: Thomas and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Petitioners filed a petition pursuant to section 2-3-5 of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/2-3-5 (West 1994)) in the circuit court of McHenry County seeking to incorporate certain territory as the Village of Greenwood. The Village of Wonder Lake (Wonder Lake) and Chicago Title and Trust Company (CT&T) (collectively, the objectors) filed objections to the petition, contending that section 2-3-5 was unconstitutional. The circuit court overruled the objections and entered an order calling for an election to determine whether the territory should be incorporated as the Village of Greenwood. The objectors appeal from that order. We dismiss the objectors' appeal for lack of jurisdiction.

Petitioners are 35 electors residing in the territory sought to be incorporated as the Village of Greenwood (Greenwood), located in McHenry County. CT&T is the trustee for Trust No. 1095386, which holds legal title to a 180 acre parcel of land located primarily outside Greenwood. However, this land includes a right-of-way underlying Wondermere Road, which is part of Greenwood. Wonder Lake is an incorporated village bordering Greenwood.

On November 23, 1994, petitioners filed a petition to incorporate Greenwood pursuant to section 2-3-5 of the Municipal Code (65 ILCS 5/2-3-5 (West 1994)), as amended by Public Act 88-544, eff. June 14, 1994. Petitioners also filed a motion to set a hearing on the petition. CT&T and Wonder Lake objected to the petition. On December 7, 1994, CT&T filed its objections, claiming that section 2-3-5 was unconstitutional special legislation. CT&T also asserted that section 28-4 of the Illinois Election Code (Election Code) (10 ILCS 5/28-4 (West 1994)) was unconstitutional as applied in the present case because it violated due process and the separation of powers doctrine. On December 9, 1994, Wonder Lake intervened and filed its objections to the petition. Wonder Lake's objections mirrored those of CT&T. Petitioners filed responses to both sets of objections. The parties then stipulated that the facts in the petition were true and that the petition satisfied the requirements of section 2-3-5.

Also on December 9, 1994, the circuit court heard testimony and arguments regarding the objections. The circuit court then continued the proceedings until December 12, 1994. On that day, the circuit court ruled that section 2-3-5 was constitutional and that petitioners had satisfied its requirements. The circuit court then called for an election on the public question of the incorporation of Greenwood. The circuit court declined to rule on whether section 28-4 of the Election Code was constitutional.

On December 13, 1994, the circuit court issued a written order effective, nunc pro tunc, as of December 12, 1994. The order stated that section 2-3-5 of the Municipal Code was constitutional. The order overruled the objections filed by CT&T and Wonder Lake and called for an election submitting to the electors of Greenwood the question of incorporation to be held on April 4, 1995. The order also required the county clerk of McHenry County to "make returns" of the election to the circuit court.

On January 6, 1995, CT&T filed a notice of appeal from the circuit court's December 13, 1994, order. On January 9, 1995, Wonder Lake filed a notice of appeal. On January 17, 1995, petitioners filed a notice of cross-appeal. On petitioners' motion, this court consolidated the objectors' appeals.

On April 4, 1995, a majority of the electors in the territory sought to be incorporated as the Village of Greenwood voted in favor of incorporation. On April 11, 1995, the county clerk of McHenry County canvassed the electoral votes and certified the election results. In an April 25, 1995, order, the circuit court found that a majority of the votes cast in the election favored incorporation. This order also decreed that pursuant to section 2-3-6 of the Municipal Code, "the territory described in the petition is incorporated as a Village under the Illinois Municipal Code with the name 'Village of Greenwood.'"

There are two issues raised by the objectors' appeal: (1) whether section 2-3-5 of the Municipal Code (65 ILCS 5/2-3-5 (West 1994)), as amended by Public Act 88-544, eff. June 14, 1994, constitutes unconstitutional special legislation; and (2) whether section 28-4 of the Election Code (10 ILCS 5/28-4 (West 1994)) is invalid as applied to the case at bar. There are three issues raised by petitioners' cross-appeal: (1) whether the December 13, 1994, order is a final order for purposes of appellate review; (2) whether the case is moot; and (3) whether the objectors have standing to object to the petition. Because we hold that the December 13, 1994, order is not a final order for purposes of appellate review, we need not address the remaining issues.

Initially, however, we must address certain motions ordered taken with the case. Wonder Lake moved to strike portions of petitioners' brief and appendices because they present information not contained in the record on appeal. Specifically, Wonder Lake objects to: appendix A (the circuit court's April 25, 1995, order entering into the record the results of the election and ordering that the territory described in the petition is incorporated as a village under the Municipal Code); appendix B (April 11, 1995, certificate of canvass results and abstract of votes by McHenry County Clerk); appendix C (selected pages of the McHenry County Land Use Plan Year 2010 Update); appendix D (Illinois 1990 census data); appendix E (circuit court's May 1, 1995, order appointing certain individuals to fill certain vacancies in elective offices of the Village of Greenwood); and appendix F (Senate Bill 949). Petitioners have filed a motion pursuant to Supreme Court Rule 329 (134 Ill. 2d R. 329) for leave to amend the record. Wonder Lake has objected to this motion. The material subject to Wonder Lake's motion to strike is the same material with which petitioners seek to supplement the record.

We grant in part and deny in part both Wonder Lake's and petitioners' motions. We grant petitioners leave to supplement the record with appendices A, B, and E, since the documents contained therein are court documents entered subsequent to the December 13, 1994, order which will help this court to decide this case. However, we deny petitioners leave to supplement the record with appendices C, D, and F, since the circuit court apparently did not consider this information prior to issuing its December 13, 1994, order. (See Knight's Prairie Hunting Club, Inc. v. Holmes (1994), 263 Ill. App. 3d 455, 458, 200 ...


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