People ex rel. Village of Long Grove v. Village of Buffalo Grove

• Citation: 113 Ill.Dec. 629,162 Ill.App.3d 340,515 N.E.2d 438
• Decision Date: 30 October 1987
• Docket Number: No. 2-86-1165,2-86-1165
• Parties: , 113 Ill.Dec. 629 The PEOPLE of the State of Illinois ex rel. VILLAGE OF LONG GROVE, an Illinois Municipal Corporation, Plaintiff-Appellant, v. VILLAGE OF BUFFALO GROVE, an Illinois Municipal Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 438

515 N.E.2d 438

162 Ill.App.3d 340, 113 Ill.Dec. 629

The PEOPLE of the State of Illinois ex rel. VILLAGE OF LONG GROVE, an Illinois Municipal Corporation Plaintiff-Appellant, v. VILLAGE OF BUFFALO GROVE, an Illinois Municipal Corporation Defendant-Appellee.

No. 2-86-1165.

Appellate Court of Illinois Second District.

Oct. 30, 1987.

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

Bloche, French & Raysa, William G. Raysa, Oak Park, James S. Gordon, Ltd., James S. Gordon (argued), Edward Slovick, Chicago, Russell L. Engber, Highland Park, for Village of Buffalo Grove.

Justice UNVERZAGT delivered the opinion of the court:

Plaintiff, the village of Long Grove, appeals from summary judgment entered for the defendant, village of Buffalo Grove, on Long Grove's complaint in quo warranto arising out of competing annexations by the two villages. The court found as a matter of law that Long Grove did not have standing to bring the action. Long Grove contends (1) it had sufficient private interest to warrant leave to file its complaint in quo warranto; (2) genuine issues of material fact precluded summary judgment in favor of Buffalo Grove; and (3) Buffalo Grove's annexation ordinance was invalid.

On February 12, 1980, the village of Long Grove adopted ordinance No. 80-0-3, in which it expressed its desire to annex certain property and to hold a referendum thereon pursuant to section 7-1-2 of the Illinois Municipal Code (Code). (Ill.Rev.Stat.1985, ch. 24, par. 7-1-2.) A certified copy of the ordinance was filed with the Lake County circuit clerk on February 14, 1980, under case No. 80 MC 4.

On February 5, 1986, Buffalo Grove gave notice of a public hearing to be held on February 24, 1986, to consider an annexation agreement and zoning for certain property known as the Fiore Nursery. A parcel known as the Seidl Nursery was also included in the proposed annexation. Notice of this hearing was given to the appropriate library and fire protection districts on February 7, 1986.

Long Grove's president pro tem was present at the Buffalo Grove public hearing on February 24, and he read a prepared statement expressing 10 areas of concern to Long Grove regarding the development proposed for the territory to be annexed by Buffalo Grove. At the conclusion of the hearing, the Buffalo Grove trustees approved the preparation of appropriate ordinances and annexation agreements to be considered at its March 3, 1986, meeting.

On that date in March, Buffalo Grove adopted an annexation ordinance which annexed property overlapping the property involved in the Long Grove annexation proceeding filed in 1980. The Long Grove annexation proceedings had not at that time been either terminated or defeated. The Buffalo Grove annexation ordinance was specifically made subject to the terms and conditions of an annexation agreement approved on that same date, and the annexation ordinance was adopted pursuant to a petition for annexation executed by all of the owners of the property annexed and 51% of the electors residing thereon. Ill.Rev.Stat.1985, ch. 24, par. 7-1-8.

On March 19, 1986, a hearing was held in case No. 80 MC 4 on objections to Long Grove's 1980 ordinance seeking to annex a portion of the property which had just been annexed by Buffalo Grove. At the conclusion of the hearing, the trial court sustained two categories of objections: those based on Long Grove's delay in acting on its ordinance, and those based on lack of contiguity of the proposed annexation. Accordingly, the court dismissed Long Grove's proceedings for annexation in case No. 80 MC 4. Long Grove appealed, and, although the case had not been decided at the time the parties here submitted briefs, we have recently affirmed the court's judgment in that case. (In re Petition of Village of Long Grove (1987), 156 Ill.App.3d 1056, 109 Ill.Dec. 202, 509 N.E.2d 1041.) We denied a petition for rehearing, and the matter is currently pending on a petition for leave to appeal to the supreme court.

On May 22, 1986, after dismissal of its annexation proceeding, Long Grove filed an application for leave to file a complaint in quo warranto challenging Buffalo Grove's annexation. Inter alia, Long Grove alleged in its complaint that it had priority over Buffalo Grove with respect to certain of the territory by virtue of its 1980 annexation ordinance. Buffalo Grove filed a response in opposition to the application, and Long Grove filed a reply. The court heard arguments and on July 10, 1986, granted Long Grove leave to file its complaint in quo warranto. Long Grove's complaint filed that same day was essentially a copy of its petition for leave to file and alleged that the Buffalo Grove annexation proceedings were null and void for numerous reasons. Buffalo Grove's motion for reconsideration of the court's ruling granting Long Grove leave to file its complaint in quo warranto was denied. Long Grove subsequently filed an amended complaint in quo warranto challenging the validity of Buffalo Grove's annexation, and Buffalo Grove answered.

After hearing on the parties' cross-motions for summary judgment and supporting memoranda, the court entered summary judgment for Buffalo Grove as noted above, finding that Long Grove did not have standing to prosecute the complaint in quo warranto.

The foremost issue to be decided is whether Long Grove had a sufficient private interest to warrant leave to file its complaint in quo warranto. Long Grove contends it had a sufficient private interest in that (1) its annexation ordinance had not yet been defeated at the time Buffalo Grove enacted its ordinance, and the subsequent dismissal of its ordinance was then pending on appeal; (2) a substantial portion of the territory was within its comprehensive plan area; (3) a substantial portion of the territory was subject to a sewer subarea agreement between itself and Lake County; and (4) the territory was directly adjacent to and coterminous with the existing boundaries of the village of Long Grove.

Long Grove contends at the outset that the issue of its standing should not have been readdressed by the court and that once it filed its complaint in quo warranto, the burden shifted to Buffalo Grove to plead and prove compliance with all applicable statutes.

Although Long Grove is correct that the burden is on the defendant in an annexation case to prove compliance with the statute at the time the annexation ordinance was passed (People ex rel. Hopf v. Village of Bensenville (1971), 132 Ill.App.2d 907, 910, 272 N.E.2d 50; People ex rel. Karns v. Village of Caseyville (1968), 99 Ill.App.2d 60, 63, 24 N.E.2d 23), those cases do not hold that the court may not reconsider its ruling granting leave to file the complaint in quo warranto. It has been held that the court's discretion is not exhausted by the granting of leave to file, and that it has the discretion to set aside its order (People ex rel. McMahon v. Davis (1917), 209 Ill.App. 117, 126; rev'd on other grounds (1918), 284 Ill. 439, 120 N.E. 326) where it appears that leave was inadvertently or improperly granted under a misapprehension of the law or the facts. (People ex rel. Naftzger v. Arnett (1925), 317 Ill. 425, 427, 148 N.E. 306; People ex rel. Outman v. Wanmer (1916), 276 Ill. 460, 463, 114 N.E. 1015.) A request to set aside the order granting leave to file has been acknowledged as the usual and approved method of testing the sufficiency of a complaint in quo warranto proceedings. People ex rel. McMahon v. Davis (1917), 209 Ill.App. 117, 126.

Although the parties here did argue the matter of whether leave to file should be granted, the issue unavoidably was renewed by virtue of Long Grove's complaint in quo warranto and the parties' cross-motions for summary judgment in that they raised the issue of the priority of Long Grove's 1980 annexation proceeding which, in turn, relates to the issue of standing.

It appears from the record that the court originally granted Long Grove leave to file the complaint upon the court's belief that there were unresolved questions involved in Long Grove's pending appeal from its order in No. 80 MC 4 dismissing Long Grove's annexation ordinance, and that it would not be in the best interest of justice to deny leave to file the complaint. Upon further argument and briefs of the parties after the filing of the complaint, the court acknowledged that an element of the cause of action in quo warranto is that the plaintiff be a citizen having standing to raise the challenge to the action in question. Consistent with its earlier ruling in No. 80 MC 4, the court concluded that Long Grove's annexation ordinance pending since 1980 had been abandoned and was not a "priority" bar in any way to Buffalo Grove passing its ordinance on March 3, 1986, and, thus, it granted Buffalo Grove summary judgment. We conclude the issue of Long Grove's standing properly was before the court.

Quo warranto is defined as "[a]n extraordinary proceeding, prerogative in nature, addressed to preventing a continued exercise of authority unlawfully asserted." (Black's Law Dictionary 1131 (5th ed. 1979).) Originally, the action could be brought only to correct public wrongs, but the action now is used to correct wrongs done to either public or private rights. People ex rel. Brooks v. Village of Lisle (1974), 24 Ill.App.3d 432, 434, 321 N.E.2d 65.

An action in quo warranto may be instituted by a citizen if he can (1) demonstrate that the Attorney General and the State's Attorney have been asked to proceed and have refused to pursue the matter and (2) show the invasion of a personal interest which is sufficiently distinct from the interest of the general public. (People ex rel. City of North Chicago v. City of Waukegan (1983), 116 Ill.App.3d 88, 92, 17 Ill.Dec. 578, 451 N.E.2d 293; Allen v. Love (1983), 112 Ill.App.3d 338, 341, 68 Ill.Dec. 66, 445 N.E.2d 514; Ill.Rev.Stat.1985,...