People ex rel. Nelson v. Village of Long Grove

• Decision Date: 06 May 1988
• Docket Number: No. 2-87-0859,2-87-0859
• Citation: 169 Ill.App.3d 866,523 N.E.2d 656
• Parties: , 119 Ill.Dec. 900 The PEOPLE, Illinois ex rel. Robert NELSON, et al., Plaintiffs-Appellants, v. The VILLAGE OF LONG GROVE, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 656

523 N.E.2d 656

169 Ill.App.3d 866, 119 Ill.Dec. 900

The PEOPLE, Illinois ex rel. Robert NELSON, et al Plaintiffs-Appellants, v. The VILLAGE OF LONG GROVE, Defendant-Appellee.

No. 2-87-0859.

Appellate Court of Illinois Second District.

May 6, 1988.

Rehearing Denied June 14, 1988.

C. Jeffrey Thut, Ray & Glick, Ltd., Libertyville, for Robert and Lois Nelson, American Nat. Bank & Trust, Norman and Andrea Cutler, and Bernard Harlan.

Fred L. Foreman, Lake County State's Atty., Waukegan, for People, ex rel. Nelson.

John M. Mullen, Conzelman, Schultz, Snarski & Mullen, Waukegan, for Village of Long Grove.

Justice UNVERZAGT delivered the opinion of the court:

Plaintiffs, Robert Nelson et al., appeal from the trial court's denial of their amended petition for leave to file a complaint in quo warranto against defendant, Village of Long Grove, in order to challenge the validity of a territorial annexation by Long Grove. On appeal, plaintiffs contend that the trial court abused its discretion by denying them leave to file their complaint in quo warranto or to further amend their petition for leave to file the complaint. We reverse and remand.

On August 14, 1986, certain landowners in unincorporated Lake County filed a petition in the circuit court to annex territory to Long Grove. The territory included land plaintiffs owned. The trial court set a hearing date of September 3 for the petition and any objections. A notice was published in the Chicago Tribune on August 18 concerning the petition and the hearing. On September 3, the trial court ruled that the annexation petition was sufficient and ordered the corporate authorities of Long Grove to vote on the proposed annexation. The next day, the village trustees of Long Grove approved an ordinance annexing the territory.

Plaintiffs filed a petition pursuant to section 2-1401 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-1401) to vacate the judgment on December 31, 1986. Plaintiffs alleged in the petition that they never received notice of the proposed annexation and did not learn until December 2, 1986, that their property had been annexed. The trial court denied the petition on April 23, 1987, on the basis that a completed annexation can only be challenged by means of a complaint in quo warranto. Plaintiffs' motion to reconsider was denied on June 1. This court recently affirmed the denial of the section 2-1401 motion. In re Petition of Certain Citizens to Annex Certain Territory to the Village of Long Grove (No. 2-87-0629, 2d Dist.1988) (unpublished Rule 23 order).

Plaintiffs filed their original petition for leave to file a complaint in quo warranto on May 22, 1987. They filed an amended petition on August 3 which included a copy of their proposed complaint. Plaintiffs alleged in the amended petition and proposed complaint that the purported September 1986 annexation of their land was illegal and invalid because of fraud and noncompliance with the notice provisions of section 7-1-2 of the Illinois Municipal Code (Code) (Ill.Rev.Stat.1985, ch. 24, par. 7-1-2). Plaintiffs further alleged that they informed Long Grove officials prior to the inception of the annexation proceedings that they did not wish to have their land annexed to the village. The petitioners in the annexation proceedings and certain Long Grove officials told plaintiffs that their land would not be annexed without their consent. When the annexation petitions were circulated in the region to be annexed, plaintiffs were deliberately bypassed so they would not receive notice of the proposed annexation. Notice of the September 3, 1986, hearing on the annexation petition was published in the Chicago Tribune, rather than a newspaper published in Long Grove as required by section 7-1-2 of the Code, in a deliberate attempt to conceal the proposed annexation from plaintiffs.

The amended petition and proposed complaint allege additionally that Long Grove has exercised jurisdiction over plaintiffs' land since September 3, 1986, and that, if the annexation proceedings had not been fraudulently concealed, plaintiffs could have raised a valid objection to the annexation of their land, since their land is on the perimeter of the annexed territory. (See Ill.Rev.Stat.1985, ch. 24, par. 7-1-3(4).) The amended petition states that the value of plaintiffs' land as commercial property has diminished greatly as a result of the annexation and that Long Grove has no ordinance which would permit plaintiffs to use their land in the same manner as they had prior to the annexation, with the exception of an ordinance concerning nonconforming uses. The amended petition also states that on or about April 8, 1987, petitioners sent written requests to the Illinois Attorney General and the Lake County State's Attorney to bring a quo warranto action against Long Grove, but they refused to do so.

Long Grove filed pleadings objecting to both the original petition for leave to file a complaint in quo warranto and the amended petition. Attached to one of those pleadings was the affidavit of Robert Cimo, owner of one of the parcels of land that was annexed by Long Grove in September 1986. Cimo stated in his affidavit that he entered into an agreement to purchase this parcel on July 2, 1986, for $340,000. He agreed to pay this sum because the property was located in an unincorporated area of Lake County which was zoned highway commercial. If the property had been zoned residential, it would have been worth no more than $40,000. Cimo intended to develop the property for commercial use with Goodyear Tire and Rubber Company as the primary tenant. He discovered early in November 1986, however, that the property had been annexed by Long Grove and was now zoned residential. Cimo filed a declaratory judgment action against Long Grove in the circuit court of Lake County. On December 18, 1986, the circuit court entered an agreed judgment order incorporating the terms of a settlement agreement between Cimo and Long Grove. Under the terms of this agreement Cimo was permitted to develop the property for use as an automotive service and shopping center with Goodyear Tire and Rubber Company as the primary tenant. Cimo agreed to construct this facility in substantial compliance with a site plan to which the parties agreed. Cimo also agreed to certain limitations with respect to operating hours, signs, and lighting fixtures and to abide by certain other restrictions.

Cimo stated in the affidavit, which he executed on July 14, 1987, that he was personally liable for an amount in excess of $550,000 for a construction loan and other obligations that he would have to pay if he was unable to develop the land quickly. Cimo stated that he closed on the property on January 20, 1987, in reliance on the Long Grove annexation and the agreed circuit court order of December 18, 1986. According to Cimo's affidavit, there was more than a reasonable probability that the filing of a quo warranto complaint would cause Countryside Bank of Mount Prospect to refuse to make any further disbursements on his construction loan until the termination of the litigation. Cimo would then be unable to complete the project and could be forced into bankruptcy. Cimo also stated that if the annexation was declared void and the property again became part of unincorporated Lake County, he would be required to make substantial expenditures in order to comply with county zoning requirements. These expenditures were set forth in detail in the affidavit.

One of Long Grove's pleadings also contained the affidavit of the village administrator, Dwayne Doughty. Doughty stated that Long Grove expected to receive at least $19,000 per year in sales tax revenue from the Cimo property. Doughty also stated that from August 18, 1986, through and including July 17, 1987, no newspaper of general circulation was published in Long Grove.

Long Grove asserted in the trial court that leave to file a complaint in quo warranto should be denied because the public interest would not be served through the filing of a complaint, there were no defects in the annexation proceedings, plaintiffs failed to set forth specific facts demonstrating a private interest which was harmed by the annexation, and failed to set forth facts showing the necessity of the relief sought. Long Grove also argued that plaintiffs should be barred from filing a complaint in quo warranto under the doctrines of laches and estoppel. On September 1, 1987, the trial court denied plaintiff's amended petition for leave to file a complaint in quo warranto and refused to grant plaintiffs leave to further amend the petition. The instant appeal ensued.

The question of whether leave should be granted to file a complaint in quo warranto is a matter which lies within the sound discretion of the trial court which may consider all surrounding circumstances and conditions, the motives of the petitioner in having the proceeding instituted, and whether the public interest will be served by permitting the action. (People ex rel. Koplin v. Village of Hinsdale (1976), 38 Ill.App.3d 714, 718, 348 N.E.2d 483.) The petition for leave to file the complaint must be full, positive, and convincing and show the interest of the petitioner; it must recite facts sufficient to satisfy the court that there are competent grounds for proceeding. (People ex rel. Vanderhyden v. Village of Elwood (1972), 5 Ill.App.3d 590, 592, 284 N.E.2d 668.) The complaint itself need not expressly set forth the grounds for an attack on defendant's claimed right. Ill.Rev.Stat.1985, ch. 110, par. 18-102; Koplin, 38 Ill.App.3d at 718, 348 N.E.2d 483.

Long Grove asserts that plaintiffs failed to allege sufficient facts in their amended petition for leave to file their complaint to demonstrate the existence of a personal interest which was harmed by the annexation. An individual only has standing to initiate a quo warranto proceeding if he or she...