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In re Incorporation of a Village to be Known as the Village of Mitchell

September 13, 2000

IN RE INCORPORATION OF A VILLAGE TO BE KNOWN AS THE VILLAGE OF MITCHELL (PETITIONERS FOR INCORPORATION, PETITIONERS-APPELLANTS; THE VILLAGE OF PONTOON BEACH, THE CITY OF EDWARDSVILLE, AND THE CITY OF GRANITE CITY, OBJECTORS-APPELLEES AND CROSS-APPELLANTS; UNION ELECTRIC DEVELOPMENT COMPANY AND GATEWAY COMMERCE CENTER INVESTMENT COMPANY, L.L.C., OBJECTORS-APPELLEES).


Appeal from the Circuit Court of Madison County. No. 98-MR-384 Honorable Randall A. Bono, Judge, presiding.

The opinion of the court was delivered by: Justice Hopkins

Rule 23 Order filed August 8, 2000; Motion to publish granted September 13, 2000.

The petitioners, 697 voters of Madison County (petitioners), appeal the trial court's order dismissing their petition for incorporation as a village. On appeal, petitioners contend that the trial court erred in reducing the population of the proposed Village of Mitchell to below 7,500 because of annexation activities of the City of Edwardsville (Edwardsville) and the City of Granite City (Granite City), thereby requiring the consent of the municipalities located within a mile and a half of the boundary of the proposed Village of Mitchell under statutory law. See 65 ILCS 5/2-3-5a (West 1998). Petitioners contend that the two annexation ordinances were defective and that the trial court erred in not adjusting the boundary lines of the proposed village, to the extent that any of the annexations by Granite City or Edwardsville were valid, to eliminate those territories from the proposed village.

On their cross-appeal, the Village of Pontoon Beach, Edwardsville, and Granite City contend that the trial court erred in not granting their motion for judgment on the petition of incorporation because of jurisdictional defects in the petition and because the petition for incorporation failed to meet statutory requirements in its legal description and boundaries. We affirm.

FACTS

Petitioners filed a petition for incorporation for the proposed Village of Mitchell on August 20, 1998. Prior to the filing of the petition, Granite City and Edwardsville filed annexation petitions and numerous annexation ordinances. Specifically, Granite City passed 74 annexation ordinances that pertained to land located inside the boundaries of the proposed village. In addition, Edwardsville passed an annexation ordinance pertaining to property owned by Charles and Helen Mueller (the Mueller property). A portion of the Mueller property was included in the boundary of the proposed Village of Mitchell. Union Electric Development Company (Union Electric) filed a petition for annexation with Granite City, and Granite City passed annexation ordinance number 7033 annexing the Union Electric property to the city. Gateway Commerce Center Investment Company, L.L.C. (Gateway) filed a petition for annexation with Edwardsville.

After the petition for incorporation was filed, Pontoon Beach, Granite City, Edwardsville, Union Electric, William and Fannie Jennings, Virgil and Trudy Jennings, and Gateway filed motions to intervene and objections to the petition for incorporation. The objections varied but encompassed the following: that the petition for incorporation is defective in that it did not contain a sufficient legal description; that the area to be incorporated contains less that 7,500 people; that the surrounding municipalities within a mile and a half of the boundaries of the proposed village do not consent to the petition for incorporation; that the area of the proposed village is not contiguous; that the legal description of the proposed village contains property already located within other municipalities; and that the area to be incorporated is in excess of the map approved by the Madison County Land Use Commission. The court granted the motions for leave to intervene.

At the hearing on the petition for incorporation, James Marty testified that he is a licensed professional land surveyor and engineer. Marty prepared the map for the petitioners' petition for incorporation. He stated that the area included in the proposed Village of Mitchell is 7.28 square miles and that the estimated population of the proposed village, based upon 1990 federal census figures, is 8,039 people. Marty did not consider any of the annexation ordinances of Granite City or Edwardsville in his tally of the population for the area. However, Marty stated that if Edwardsville's annexation ordinance for the Mueller property is valid, then the population of the area commonly known as Poag, which is affected by the Mueller annexation, is 305 people. Marty did not believe that the population of the proposed village should be reduced by this amount, as the Poag area is still connected to the Mitchell area by a railroad right-of-way that is approximately 126 feet wide and 1600 feet long.

Marty acknowledged that the population reduction for the Village of Mitchell would be 370 if the Lindsay annexation by Granite City was considered valid. Similarly, if the Granite City annexation ordinances were considered valid, then the annexation ordinances not associated with the Maryville Road annexation ordinance would reduce the population of the proposed village by 113 people. Lastly, Marty stated that if the Union Electric property was validly annexed, the population of the proposed village would be reduced by 97 people.

The evidence deposition of Joseph M. Juneau was introduced into evidence. Juneau testified that his calculation of the population of the proposed village, based on 1990 federal census figures, is 7,980. Juneau considered the completed and pending annexations to Edwardsville and Granite City and made five adjustments to the proposed village's population. The first adjustment was based upon the Mueller-property annexation. Juneau reduced the proposed village's population because the Mueller-property annexation severed the Poag area from the Mitchell area, making the Poag area noncontiguous to the Mitchell area. The population of the Poag area reduced the proposed village population by 305 people. The second adjustment made by Juneau was based upon the Lindsay-property annexation. Again, the Lindsay-property annexation completely severed the southeast portion of the proposed village, making that area noncontiguous. According to Juneau, the Lindsay-property annexation reduced the proposed village's population by 479 people. Juneau's third adjustment to the population was based upon the annexations by Granite City on August 18, 1998, as these annexations were completed before the petition for incorporation was filed. The annexations by Granite City, including the Maryville Road annexation and the annexations associated with Maryville Road, reduced the population for the proposed village by 192 people. The fourth adjustment, based upon Union Electric's preannexation agreement with Granite City and the proposed annexation of the Jennings's property, would reduce the proposed village's population by 97 people. Juneau's last adjustment was based upon a number of preannexation agreements filed with Granite City; however, the properties involved were not contiguous with Granite City, so he did not reduce the population for the proposed village because of these adjustments. If these preannexation agreements are considered, the population of those areas is 255. By Juneau's calculations, he determined that the total population of the proposed village after the adjustments is 6,653. The trial court determined in its written order of January 28, 1999, that the Granite City annexation petitions were filed prior to the incorporation petition and take priority over the incorporation petition. The court held that Granite City's annexation ordinances were effective and that the Granite City and Edwardsville ordinances reduced the population of the proposed Village of Mitchell to 7,251. The court further held that since the population of the proposed village is below 7,500, the statutory requirements of section 2-3-5a of the Illinois Municipal Code (65 ILCS 5/2-3-5a(a) (West 1998)) were not met. The court also determined that the boundary of the proposed village was inaccurately described and platted because the properties annexed by the cities of Granite City and Edwardsville were not reflected in the plat map for the proposed village. Therefore, the trial court denied the petition for incorporation, found the petition for incorporation to be invalid, and dismissed the petition for incorporation with prejudice. Petitioners filed a timely appeal, and the municipalities cross-appeal.

ANALYSIS

Petitioners contend that the trial court erred in dismissing the petition for incorporation. Petitioners claim that the court should not have reduced the population and should not have found that the boundary of the proposed Village of Mitchell was inaccurate due to Granite City's and Edwardsville's annexation ordinances. Under this issue, petitioners present five subissues: (1) that the Granite City annexation ordinances, passed on August 18, 1998, two days before the petition of incorporation was filed, were ineffective and should not have been considered by the trial court; (2) that the court should not have deleted the population of the Poag area because the railroad right-of-way made the Poag area and the Mitchell area contiguous; (3) that Granite City's annexation ordinance concerning Maryville Road was invalid; (4) that various Granite City preannexation agreements should not reduce the population; and (5) that the annexation petitions filed by Union Electric and Gateway were abandoned and the court should not have considered that the areas covered by these two petitions for annexation changed the boundary of the proposed Village of Mitchell.

Case law has established that on the issue of the priority between competing annexation or incorporation proceedings, jurisdictional priority is established by whichever petition is initiated or filed first. See In re Petition to Annex Certain Property to City of Wood Dale, 244 Ill. App. 3d 820 (1993); People ex rel. Village of Long Grove v. Village of Buffalo Grove, 160 Ill. App. 3d 455 (1987).

Jurisdictional priority between an annexation petition and a petition for incorporation does not depend on the validity or the correctness of the petitions. See In re Petition to Annex Certain Property to City of Wood Dale, 244 Ill. App. 3d at 827. A later petition filed during the pendency of an earlier petition does not lawfully come into being while the earlier petition remains pending and ...


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