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