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Flex-O-Glass v. City of Dixon

October 01, 1999

FLEX-O-GLASS, INC., AND AMCORE INVESTMENT GROUP, N.A., AS TRUSTEE UNDER THE PROVISIONS OF A TRUST AGREEMENT DATED DECEMBER 20, 1971, AND KNOWN AS TRUST NO. 766, PLAINTIFFS-APPELLANTS,
V.
THE CITY OF DIXON, DEFENDANT-APPELLEE.



Appeal of the Circuit Court of Lee County No. 98--CH--14 Honorable David T. Fritts, Judge, Presiding.

The opinion of the court was delivered by: Justice Geiger

JUSTICE GEIGER delivered the opinion of the court:

The plaintiffs, Flex-O-Glass, Inc., and Amcore Investment Group, N.A. (Amcore), appeal from the September 4, 1998, order of the circuit court of Lee County dismissing their complaint for declaratory judgment. In their complaint, the plaintiffs sought a declaration that the defendant, City of Dixon (City), was obligated to continue to provide sewer service to Flex-O-Glass's manufacturing plant, which was located outside of the City's boundaries. The plaintiffs also sought an injunction preventing the City from terminating sewer service. The trial court dismissed the action, finding that the City had no duty to provide utility services to a nonresident. We affirm.

The plaintiffs' complaint alleges the following facts. Since 1971, Flex-O-Glass has operated a large manufacturing plant on a piece of property outside the City's corporate limits. Amcore is the owner of the real property as the designated trustee under the provisions of a trust agreement executed on December 20, 1971. Although the complaint fails to indicate the precise size of the property, the complaint does indicate that the property is larger than 10 acres.

From 1971 until the present, the City has supplied water and sewer service to Flex-O-Glass's manufacturing plant. Flex-O-Glass has paid the City for these services according to the City's rate schedule for nonresident customers. Since 1971, Flex-O-Glass has paid the City an amount in excess of $20,000 for water and sewer service. During this same period, Flex-O-Glass has expended over $1,000,000 in the establishment and improvement of the manufacturing facilities at the plant.

Since Flex-O-Glass commenced operations at the plant, the City has sought to annex the property. However, under section 7--1--2(a) of the Illinois Municipal Code (65 ILCS 5/7--1--2(a) (West 1998)), involuntary annexation proceedings on tracts in excess of 10 acres can be commenced only if the tract has been subdivided into lots or blocks or if the tract is bounded on at least three sides by lands subdivided into lots or blocks. Because the instant property has not been subdivided and is not bound on at least three sides by subdivided lands, the City cannot pursue annexation without the plaintiffs' consent. See 65 ILCS 5/7--1--2(a) (West 1998). Despite the City's repeated requests, the plaintiffs have refused to give their consent to annexation.

On July 6, 1981, the City enacted Ordinance No. 1094 relating to the provision of sewer service to nonresidents. This ordinance was codified as section 3--15--2 of the City's municipal code (Dixon Municipal Code §3--15--2 (eff. July 6, 1981)) and provided as follows:

"CONNECTION RESTRICTION: No hook up shall be allowed outside the corporate limits except where annexation is legally impossible. The property must be annexed immediately when possible. Connection to the public sewerage system of the City by a user located outside the corporate limits of the City shall be allowed only under the following conditions:

(A) The user is unable to annex to the City because the user's territory is not adjacent or contiguous to the City;

(B) The user agrees in writing to petition the City for annexation to the City when its territory becomes adjacent and contiguous to the City ***."

Following the passage of this ordinance, the plaintiffs continued to refuse to give their consent to be annexed into the City. Despite this refusal, the City continued to provide water and sewer services to the plant without interruption.

On July 30, 1990, the City filed suit against the plaintiffs in the circuit court of Lee County. City of Dixon v. Flex-O-Glass, Inc., No. 90--MC--1 (Cir. Ct. Lee Co.). The suit sought to compel the annexation of the plaintiffs' property. Alternatively, the City sought an order that it was no longer obligated to provide water and sewer services to the premises. On October 9, 1990, the plaintiffs answered the complaint, reasserting their right not to be annexed under section 7--1--2(a) of the Illinois Municipal Code. The City apparently chose not to pursue the litigation, and the case was dismissed for want of prosecution on August 22, 1994. During the pendency of this suit, the City continued to provide water and sewer service to the property.

On March 23, 1998, the City sent Flex-O-Glass written notice indicating its intention to terminate sewer service to the premises on April 10, 1998. In its written notice, the City explained that Flex-O-Glass was in violation of section 3--15--2 of the Dixon Municipal Code because it had "not yet petitioned for annexation of [its] property to the City." On April 7, 1998, Flex-O-Glass sent a written objection to the City, indicating that it did not intend to consent to annexation.

On April 8, 1998, the plaintiffs filed a complaint for declaratory judgment. In their complaint, the plaintiffs alleged that the threatened termination of sewer service was an unlawful attempt by the City to coerce annexation. The plaintiffs alleged that the termination of sewer service would also constitute an unconstitutional "discriminatory violation of the [City's] duty to fairly provide such essential services to nonresident property owners." The plaintiffs also alleged that the City was estopped from enforcing section 3--15--2 of the Dixon Municipal Code because the plaintiffs had expended substantial funds for capital improvements to the plant in reliance upon the City's forbearance in enforcing the ordinance for the previous 18 years. The plaintiffs requested a declaration that ...


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