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The People of the State of Illinois Ex Rel. T-Mobile Usa, Inc v. the Village of Hawthorn Woods

March 8, 2012

THE PEOPLE OF THE STATE OF ILLINOIS EX REL. T-MOBILE USA, INC.,
PLAINTIFF-APPELLEE,
v.
THE VILLAGE OF HAWTHORN WOODS, DEFENDANT-APPELLANT
(ROSS HUGI, DEFENDANT)



Appeal from the Circuit Court of Lake County.No. 09-MR-26 Honorable Christopher C. Starck, . Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

JUSTICE BOWMAN delivered the judgment of the court, with opinion.

Presiding Justice Jorgensen and Justice Schostok concurred in the judgment and opinion.

OPINION

¶ 1 At issue in this case is the validity of ordinances passed by defendant the Village of Hawthorn Woods (Village), that forcibly annexed land adjacent to the Village in unincorporated Lake County. Part of the land was owned by defendant Ross Hugi, who was added to the case as a necessary party. Prior to the passage of the ordinances, Hugi had leased a portion of his property to plaintiff, T-Mobile USA, Inc. (T-Mobile), to construct a wireless communications tower. T-Mobile filed suit against the Village, alleging that two of the ordinances were invalid because they improperly used as a boundary a water feature that did not constitute a "creek," in violation of section 7-1-13 of the Illinois Municipal Code (65 ILCS 5/7-1-13 (West 2008)). The trial court agreed and entered judgment in T-Mobile's favor. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On July 23, 2008, T-Mobile entered into a lease with Hugi to construct a wireless communications tower on his property. On October 15 and 21, 2009, Lake County issued T-Mobile permits to construct the tower. However, construction did not begin because on November 22, 2008, the Village adopted three separate ordinances sequentially annexing three parcels of land in unincorporated Lake County, including the land on which the tower was to be built. Each parcel was less than 60 acres, in conformance with section 7-1-13. Ordinance No. 1263-08 annexed a 16.5-acre parcel of land bounded by the Village and the centerline of the west branch of Indian Creek. Ordinance No. 1264-08 annexed a 44.4-acre parcel bounded by the newly incorporated Village land under the previous ordinance and the "CENTERLINE OF AN UNNAMED CREEK TRIBUTARY OF THE WEST BRANCH OF INDIAN CREEK." Last, ordinance No. 1265-08 annexed a 39.4-acre parcel bounded by the centerline of the unnamed creek tributary and the Village. Hugi owned about 44 acres within the first and second parcels, and the property leased to T-Mobile was within the second parcel.

¶ 4 According to documents in the record, the alleged creek tributary (hereinafter referred to as "water feature") at issue begins at Gilmer Road, which is a two-lane highway running northwest to southeast. The water feature begins at a culvert in the road and runs somewhat perpendicular to the road. The water feature then turns sharply and heads east until it intersects with a pond. The water feature can be roughly described as having a "hockey stick" shape, with the portion beginning at Gilmer Road being the blade and the east-west leg being the shaft.

¶ 5 A. T-Mobile Files Suit

¶ 6 On January 12, 2009, T-Mobile filed a petition for leave to file a complaint to challenge the annexation. The trial court granted T-Mobile leave to file the complaint on January 21, 2009. T-Mobile filed an amended, two-count complaint on July 14, 2010. Count I, sounding in quo warrantor, alleged as follows. Shortly after the annexation, the Village advised T-Mobile that its Lake County permits were no longer valid and that T-Mobile would need Village permission before constructing the tower. Lake County similarly advised T-Mobile that, in light of the annexation, it was abdicating jurisdiction over the parcel and ceding it to the Village. T-Mobile requested that the Lake County State's Attorney or the Illinois Attorney General bring a quo warrantor action against the Village, but those offices declined. The water feature referenced in the subject ordinances did not form a legal boundary because it was not a "creek" within the meaning of section 7-1-13. Therefore, the Village's adoption of the ordinances violated the statutory requirement that municipalities cannot forcibly annex contiguous parcels of more than 60 acres. Count I sought an order finding the ordinances void. Count II sought a declaratory judgment that, regardless of the ordinances' validity, T-Mobile had a vested right to build its tower based on the building permits previously issued by Lake County, which established a nonconforming use under the Village's code.

¶ 7 On August 31, 2010, the trial court ordered that the trial would proceed only on count I, with count II being stayed pending further order.

¶ 8 B. Trial

¶ 9 1. Village's Expert

¶ 10 The trial took place on November 1 and 3, 2010. Christopher Burke was accepted as an expert for the Village and provided the following testimony. He had a Ph. D. in civil engineering and was the president of Christopher Burke Engineering, which had about 200 employees. He and his firm had provided engineering services to about 45 municipalities. The Village hired him in fall 2008 as a consulting engineer, and he prepared plats of annexation for the subject ordinances. Prior to annexation, the 100.3 acres at issue were totally surrounded by incorporated land in the Village. The plats referred to the water feature as the "APPROXIMATE CENTERLINE LOCATION OF AN UNNAMED CREEK TRIBUTARY OF THE WEST BRANCH OF INDIAN CREEK FROM AERIAL PHOTOGRAPHY." The firm used three or four aerial photographs from Lake County's Geographic Information System in identifying the approximate centerline. The firm had prepared many plats of annexation and had never, to his knowledge, specifically noted on the plat itself which aerial photograph was relied on. In his experience, it was appropriate and reasonable to rely on such aerial photographs.

¶ 11 The water feature currently drained the roadside ditches of Gilmer Road and the Rambling Hills Subdivision across the street. The water feature was present in a Lake County aerial photograph dating from 1939; it may also have been present before that time, but aerial photographs of the site before 1939 did not exist. The water feature also appeared in subsequent Lake County aerial photographs from 1946, 1974, 1993, 2000, 2002, and 2004 to 2008. In 1939, the water feature was much shorter because it ran from Gilmer Road directly to the west branch of Indian Creek, and the water feature did not have its east-west leg. The west branch of Indian Creek was subsequently relocated sometime between 1939 and 1946. After that, the water feature ran under Gilmer Road, across the property, close to the "remnants of the west branch of Indian Creek," and eventually flowed to and met the west branch of Indian Creek. It became more pronounced in the photographs over time. There were "improvements" to the water feature to accommodate the "180 some odd acres that [were] trying to drain downhill into the site." The Rambling Hills subdivision would have further increased the volume of water in the water feature. The water feature was "not carved by the glaciers" and "man has been involved with the modification of it," the same way that the relocation of the west branch of Indian Creek had "taken place by man." Over time, the water feature had "been maintained and drenched [sic]."

ΒΆ 12 Burke originally viewed the site from the ground, without entering the property, to make sure that he was comfortable calling it a creek. He later visited the site in person in 2010 and took ...


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