People ex rel. Village of Northbrook v. Village of Glenview
| Decision Date | 08 September 1989 |
| Docket Number | 1-88-3449,Nos. 1-88-3448,s. 1-88-3448 |
| Citation | 194 Ill.App.3d 560,551 N.E.2d 235,141 Ill.Dec. 242 |
| Parties | , 141 Ill.Dec. 242 The PEOPLE of the State of Illinois ex rel. VILLAGE OF NORTHBROOK, a municipal corporation, Plaintiff-Appellant Cross-Appellee, v. The VILLAGE OF GLENVIEW, a municipal corporation, Defendant-Appellee Cross-Appellant. |
| Court | United States Appellate Court of Illinois |
Burke, Bosselman & Weaver, Chicago (Clifford L. Weaver, Steven M. Elros, Victor P. Filippini, Jr., and David A. Lochbihler, of counsel), for plaintiff-appellant cross-appellee.
Klein, Thorpe & Jenkins, Ltd., Chicago, Jeffrey M. Randall, Randall, Gayle & Patt, Waukegan, for defendant-appellee cross-appellant.
Plaintiff, the Village of Northbrook, and defendant, the Village of Glenview, both sought to annex the same property, designated as parcels 7, 8, 9, 10, 11 and 12, and subsequently filed these quo warranto actions pursuant to Ill.Rev.Stat.1987, ch. 110, par. 18-101 et seq. The parties filed cross-motions for summary judgment. The trial court entered summary judgment in favor of Glenview with respect to parcels 9, 10, 11 and 12; and entered summary judgment in favor of Northbrook with respect to parcels 7 and 8. Northbrook appeals, and Glenview cross-appeals. Each seeks the right to annex all six parcels, and each contends that it attained exclusive jurisdictional priority over the property. Northbrook also contends that Glenview's annexation proceedings suffer from fatal procedural defects.
The unincorporated territory totals less than 60 acres and is surrounded by the village boundaries of Northbrook and Glenview, as shown in the diagram contained in the appendix to this opinion.
On February 1, 2 and 3, 1988, Northbrook published notices regarding the annexation On February 3, Northbrook notified the trustees of the Northbrook and Glenbrook Rural Fire Protection Districts in writing by certified mail that Northbrook's Board of Trustees would consider the annexation on February 15, 1988.
[141 Ill.Dec. 244] of the property at issue in the Chicago Tribune pursuant to section 7-1-13 of the Illinois Municipal Code. Ill.Rev.Stat.1987, ch. 24, par. 7-1-13 (involuntary annexation provision).
On February 11 and 12, Glenview received petitions signed by all owners and electors residing in the disputed territory, requesting annexation of the property by Glenview, pursuant to section 7-1-8. Ill.Rev.Stat.1987, ch. 24, par. 7-1-8 (voluntary annexation provision).
On February 15, Northbrook held its Board of Trustees meeting. By unanimous vote, the Board adopted an ordinance annexing the property. On February 16, Northbrook published the ordinance. On the same day, Northbrook recorded the ordinance and affidavits of service to the fire protection districts with the Recorder of Deeds.
On February 18 and 19, Glenview personally served the trustees of the Northbrook and Glenbrook rural fire protection districts with notice of Glenview's consideration of an ordinance to annex the disputed property.
On March 1, Glenview adopted four annexation ordinances, including all of the disputed property. On March 2, Glenview recorded the ordinances with certifications of notice signed by its village clerk. On March 2, Northbrook asked the Attorney General of Illinois and the Cook County State's Attorney to bring quo warranto actions against Glenview, but those officials refused to do so, stating it was a local matter.
On March 9, Northbrook sought leave to bring this action in the trial court. On March 25, Glenview sought leave to bring its action. The trial court granted both villages leave to file quo warranto actions. The parties entered a stipulation of facts, and filed cross-motions for summary judgment.
We first address several objections made by Northbrook regarding procedural defects in Glenview's annexation procedures.
Northbrook complains that Glenview failed to serve proper statutory notice on the trustees of the affected fire protection districts because it used personal service rather than certified or registered mail. The trial court agreed that the notices were not served in the manner prescribed by statute, but concluded that the service was sufficient because personal service is a better form of service than certified mail.
The statute provides that when land (Ill.Rev.Stat.1987, ch. 24, par. 7-1-1.) Glenview served the trustees of the Northbrook and Glenbrook fire protection districts by personal service, and not by certified or registered mail. None of the trustees contested the service.
We find that personal service satisfies the statutory requirement of notice by certified or registered mail. (See Matthiessen v. Board of Education of North Chicago Community High School District No. 123 (7th Cir.1988), 857 F.2d 404 (), citing Glover v. Board of Education (1975), 62 Ill.2d 122, 340 N.E.2d 4, and Donahoo v. Board of Education (1952), 413 Ill. 422, 109 N.E.2d 787.) Personal service constitutes full compliance with the intent of the statute, and in fact satisfies the statutory purpose even more fully than the precise methods of service listed in the statute. See Donahoo v. Board of Education (1952), 346 Ill.App. 241, 104 N.E.2d 833, rev'd. on other grounds (1952), 413 Ill. 422, 109 N.E.2d 787.
In arguing that the trial court erred in approving personal service, Northbrook cites People ex rel. Hopf v. Village of Northbrook next complains that Glenview's affidavit in the recorded notice was ineffective because the village clerk's oath was not notarized. The statute provides that an (Ill.Rev.Stat.1987, ch. 24, par. 7-1-1.) Glenview's village clerk signed an affidavit stating "under oath" that due notice was given to the trustees of the fire protection districts. The statement was not notarized, but the trial court found the affidavit was in accordance with the statute.
[141 Ill.Dec. 245] Bensenville (1971), 132 Ill.App.2d 907, 272 N.E.2d 50. However, in Hopf no service was made at all
A village clerk has the power to administer oaths and affirmations. (Ill.Rev.Stat.1987, ch. 24, par. 3-9-3; see also ch. 24, par. 3-108 (clerk certifies all papers filed in the clerk's office), and ch. 110, par. 8-1203 (clerk certifies municipal records).) The clerk is an officer, and his acts are official. (City of Chicago v. McCoy (1891), 136 Ill. 344, 26 N.E. 363.) Thus, the statute's requirements were sufficiently met here, despite the absence of the notarization. In view of our holding, we decline to consider Glenview's assertion that it subsequently recorded an amended notice which was sworn to before a notary public.
Having found no procedural defects which nullify Glenview's annexation proceedings, we proceed to address the heart of these actions, the issue of which village, Glenview or Northbrook, had jurisdictional priority in the annexation.
The general rule governing conflicting petitions to annex or incorporate the same tract of land is that the first to initiate an annexation is entitled to priority over the territory against all other parties initiating such a proceeding at a later date. In re Byron Park District (1978), 67 Ill.App.3d 61, 24 Ill.Dec. 300, 385 N.E.2d 67.
Thus, in jurisdictional priority issues, priority in time is conclusive. Priority is typically determined by the time of initiation of the annexation proceedings. In some jurisdictions, the initiation turns on the first public procedural step required by the statute for the particular method used, or upon some other rule. See generally, C.D. Sands, M.E. Libonati, 1 Local Government Law § 8.32 at 8-167 (1981).
Northbrook contends that it was first to initiate its proceeding to annex (10 days before the electors gave Glenview the voluntary petition to annex), and completed its annexation proceedings before Glenview even served notice of its proceedings. It maintains that jurisdiction becomes exclusive in the body before which proceedings are first instituted, and that its filing of notice of involuntary annexation served as the first mandatory public procedural step which caused jurisdiction to vest in Northbrook.
Glenview counters that Northbrook's publication of notice merely permitted the owners of the property which was to be annexed to respond to Northbrook's proposed annexation, and that publication did not give Northbrook jurisdiction. The property owners may choose to voluntarily annex to a municipality until such time as the first municipality actually adopts its annexation ordinance. Since the owners petitioned Glenview for annexation on February 11 and 12, Northbrook's February 15 adoption, and February 16 recording, of an ordinance annexing the property were ineffective.
The Illinois statute provide several different methods of annexation. (Ill.Rev.Stat.1987, ch. 24, par. 7-1-1 et seq.) Every method requires the approval of a certain percentage of owners and electors residing in the unincorporated territory proposed for annexation, except one. The owners and electors may initiate the annexation action (pars. 7-1-2, 7-1-5, 7-1-8, 7-1-11, 7-1-12), or when the municipality initiates the proceedings, the electors must vote in a referendum on the issue (par. 7-1-7).) However, when a tract of land is smaller than 60...
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