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Chicago Title Land Trust Co. v. The County of Will

Court of Appeals of Illinois, Third District

May 18, 2018

CHICAGO TITLE LAND TRUST COMPANY as Trustee and as Successor to North Star Trust Company, Successor to Harris Bank, Successor to First National Bank, Under a Trust Agreement Dated October 21, 1979 and Known as Trust No. 1689, by HENRY E. JAMES, the Holder of the Power of Direction and the Owner of the Beneficial Interest of the Land Trust, Plaintiff-Appellant,
THE COUNTY OF WILL, a Body Politic and Corporate, THE WILL COUNTY PLANNING AND ZONING COMMISSION, an Agency of Will County, LENARD VALLONE, an Individual, BARBARA PETERSON, an Individual, KIMBERLY MITCHELL, an Individual, HUGH STIPAN, an Individual, SCOTT LAGGER, an Individual, MICHAEL CARRUTHERS, an Individual, and THOMAS WHITE, an Individual, Defendants Village of Bolingbrook, Intervenor-Appellee.

          Appeal from the Circuit Court of the Twelfth Judicial Circuit, Will County, Illinois. Circuit No. 15-MR-2972, Honorable Roger D. Rickmon, Judge, Presiding.

          WRIGHT JUSTICE delivered the judgment of the court, with opinion. Justice O'Brien concurred in the judgment and opinion. Justice Holdridge dissented, with opinion.



         ¶ 1 Plaintiff, Henry E. James, appeals from the trial court's November 17, 2016, order granting the Village of Bolingbrook's motion for summary judgment in plaintiffs quo warranto action against the Village of Bolingbrook. Plaintiff contends that the Village of Bolingbrook entered into a sham voluntary annexation agreement with an adjacent property owner in order to create contiguous boundaries to reach his property, in violation of Illinois annexation law and public policy. Further, plaintiff argues that the Village of Bolingbrook lacked statutory authority to involuntarily annex plaintiffs property because plaintiffs property was not "wholly bounded" by one or more municipalities at the time of the passage of the May 10, 2016, ordinance attempting to involuntarily annex plaintiffs property. We reverse and remand with directions.

         ¶ 2 FACTS

         ¶ 3 This case involves a quo warranto action to invalidate the involuntary annexation of plaintiff Henry E. James's land into the Village of Bolingbrook (the Village). Plaintiff is the beneficial owner of two separate land trusts, each containing a parcel of real property located in unincorporated Du Page Township, in Will County (collectively, the "James property").

         ¶ 4 One parcel consists of a 3.08-acre vacant lot (the "three-acre parcel"), situated along the Interstate I-55 south frontage road, east of Veterans Parkway. The other parcel consists of an approximately two-acre lot with a farmhouse (the "two-acre parcel").

         ¶ 5 I. ComEd's Petition for Voluntary Annexation

         ¶ 6 On November 4, 2015, the Village's counsel drafted a letter to a senior real estate representative of Commonwealth Edison (ComEd), addressing the Village's proposal to voluntarily annex a parcel of land owned by ComEd (ComEd property). The Village's counsel explained that "[a]nnexing this property will allow the Village to annex the adjacent properties."

         ¶ 7 On February 29, 2016, ComEd submitted a petition for voluntary annexation pursuant to section 7-1-8 of the Illinois Municipal Code (65 ILCS 5/7-1-8 (West 2016)) to the Village. ComEd's petition requested that the ComEd property be annexed "subject to the satisfaction of the Conditions Precedent and the Condition Subsequent in the ComEd Annexation Agreement." ComEd also requested that the Village take such further action as may be necessary or appropriate to effect, in accordance with the law, the annexation of the ComEd property into the Village "only so long as it is subject to the Annexation Agreement."

         ¶ 8 On March 8, 2016, the Village approved the terms of the ComEd annexation agreement, referenced in ComEd's petition for voluntary annexation. The recitals to the approved ComEd annexation agreement state as follows, in relevant part:

"At the request of the Village, ComEd has agreed to have the Property annexed to the Village as an accommodation to the Village and in reliance upon the representations and assurances of the Village, as documented herein, that (i) annexation of the Property will not result in any additional restrictions (including without limitation any municipal regulations) or any financial burdens of any kind or nature whatsoever being imposed by the Village or third parties on the ownership, use, and operation of the Property by ComEd or the ComEd Companies (except for generally applicable property tax levies, but not special assessments or levies attributable to special service areas), and (ii) the Village will fully and faithfully perform and observe during the term of this Agreement of all of the terms and conditions to be performed or observed by the Village hereunder."

         Section 2B of the ComEd annexation agreement provided as follows:

"2B. Conditions Precedent and Subsequent. ComEd's obligation to execute and file the Petition described in Section 2A hereof and maintain it on file with the Village, and the annexation of ComEd's Property pursuant to the Petition and this Agreement are hereby expressly made conditional upon the occurrence or fulfillment of the conditions precedent set forth below. The conditions precedent (collectively the 'Conditions Precedent') are as follows:
(b) The absence of any change in circumstances which in ComEd's reasonable judgment is likely to have a material adverse effect on ComEd or the ComEd companies.
(c) The absence of any change in circumstances which in ComEd's reasonable judgment obviates the need for the annexation of the Property by the Village in light of the Village's stated municipal objectives."

         ¶ 9 Immediately following the list of conditions precedent, section 2B of the ComEd annexation agreement provides as follows:

"In the event that each and all of the Conditions Precedent have not occurred or been fulfilled on or before June 30, 2016, this Agreement, at the option of ComEd exercisable by written notice to the City, shall terminate and ComEd shall have no obligation to file the Petition or consent to the annexation of the Property or any other portion of ComEd's property. The parties may extend the deadlines set forth in this Section by mutual assent without the necessity of amending this Agreement. Assent by the Village may be given by the Village Attorney or Senior Administrator without additional authorization or direction from the Corporate Authorities."

         ¶ 10 According to section 3(b) of the ComEd annexation agreement, the ComEd property is not subject to any ordinances, regulations, or codes. Further, the Village expressly agreed not to permit any of the Village regulations to be applied or enforced against the ComEd property in section 3(c) of the ComEd annexation agreement "irrespective of the source of the Village's authority."

         ¶ 11 Section 5(a) of the ComEd annexation agreement provides, in relevant part:

"The Village hereby agrees to cooperate fully with ComEd and to exercise all reasonable efforts with the appropriate township assessor's office in order to ensure that the tax parcel(s) for the Property shall be classified for assessment purposes as vacant agricultural land or as any classification otherwise available for vacant land that results in the lowest possible assessed value."

         Section 5(b) of the ComEd annexation agreement provides that "[t]he Village agrees to abate all taxes and assessments (other than generally applicable property taxes) that may otherwise be levied by the Village upon the [ComEd] Property."

         ¶ 12 As part of the approved ComEd annexation agreement, the Village agreed to waive any fees and charges that could be imposed on ComEd for annexations or for processing applications for zoning amendments in section 6 of the ComEd annexation agreement. Section 7 of the ComEd annexation agreement contains the Village's promise to indemnify ComEd from and against any and all losses, damages, and claims incurred by ComEd that arise from the annexation or from the disconnection of the ComEd property.

         ¶ 13 Section 10 of the approved ComEd annexation agreement, titled "Right to Disconnect, " provides that ComEd may elect to disconnect from the Village all or any portion of the annexed property after one year has passed from the date of the property's annexation and if the disconnection of the property would not, under section 7-1-1 of the Municipal Code (65 ILCS 5/7-1-1 (West 2016)), disrupt the contiguity of the territory within the Village. Section 10 also provides that ComEd has a right to disconnect after six months from the date of the agreement if there is a territory immediately adjoining the ComEd property remaining under the jurisdiction of Will County and outside the boundaries of any municipality. Finally, section 10 states, in relevant part, that "[t]he ...

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