Petition to Annex Certain Property to City of Wood Dale, In re

• Citation: 244 Ill.App.3d 820,611 N.E.2d 606,183 Ill.Dec. 343
• Decision Date: 08 April 1993
• Docket Number: No. 2-92-0407,2-92-0407
• Parties: , 183 Ill.Dec. 343 In re PETITION TO ANNEX CERTAIN PROPERTY TO the CITY OF WOOD DALE (John E. Matulis et al., Petitioners-Appellants, v. Montalbano Builders, Inc., et al., Objectors-Appellees).
• Court: United States Appellate Court of Illinois

Page 606

611 N.E.2d 606

244 Ill.App.3d 820, 183 Ill.Dec. 343

In re PETITION TO ANNEX CERTAIN PROPERTY TO the CITY OF WOOD DALE (John E. Matulis et al Petitioners-Appellants, v. Montalbano Builders, Inc., et al Objectors-Appellees).

No. 2-92-0407.

Appellate Court of Illinois Second District.

April 8, 1993.

Patrick M. Loftus, Law Offices of Patrick M. Loftus, Addison, Erwin W. Jentsch, Mount Prospect, for John Mattulis, et al.

Barry L. Moss, Stuart D. Gordon, George A. Marchetti, Moss & Bloomberg, Ltd., Bolingbrook, for Village of Addison.

Michael N. Schwartz, Thomas J. Bamonte, Sachnoff & Weaver, Ltd., Chicago, for Montalbano Builders, Inc.

Justice GEIGER delivered the opinion of the court.

The petitioners, John E. Matulis and others, appeal from the circuit court's judgment of March 6, 1992, striking and dismissing their annexation petition. We affirm.

On October 7, 1991, petitioner-affiant John E. Matulis and numerous other petitioners (petitioners) filed in the circuit court a petition to annex a certain described tract of land to the City of Wood Dale, Illinois (Matulis petition). The petition requested the entry of an order of the court submitting the question of annexation to the corporate authorities of that city, presumably according to the provisions of section 7-1-2 of the Illinois Municipal Code (Code) (Ill.Rev.Stat.1991, ch. 24, par. 7-1-2). The petition alleged that the tract of land was contiguous to the City of Wood Dale; that the tract was not within the corporate limits of any municipality; and that the undersigned petitioners were a majority of the record owners and a majority of the electors residing on the tract of land.

Next to the signatures appended to the petition were various handwritten designations such as: "property owner," "property reg. voter," "owner-voter," "owner," "owner reg voter," "owner registered," "voter, property owner," and "homeowner voter." No addresses of the signatories were placed on the petition itself. The attached affidavit of John E. Matulis recited that he was one of the petitioners; that the persons signing the petition constituted a majority of the property owners of record and a majority of the electors of the territory described; that he had personal knowledge of the allegations contained in the petition; and that the allegations were true. In the record, there is also a typed list of names and street addresses allegedly corresponding to those of the signatories. The list was filed on October 16, 1991, without comment; there is no indication in the record that it was filed by motion or incorporated into the petition by amendment.

The objectors, Montalbano Builders, Inc. (Montalbano), and the Village of Addison (Addison), filed motions to dismiss the petition. (See Ill.Rev.Stat.1991, ch. 24, par. 7-1-3.) Montalbano filed its emergency motion to dismiss on October 16, 1991; the motion averred that the Matulis petition lacked priority and was jurisdictionally defective because, in July 1991, Montalbano had previously filed a voluntary petition (see Ill.Rev.Stat.1991, ch. 24, par. 7-1-8) to annex its property, located in unincorporated Du Page County, to Addison (Addison petition). Montalbano's property was also included in the property described in the Matulis petition. According to the Montalbano motion, its property, together with a contiguous parcel of land for which Montalbano had entered into a purchase agreement, was commonly known as the "Moose Lodge Property" and was already the subject of public hearings; Addison's Plan Commission had approved a pre-annexation agreement. A copy of the Addison petition is included in the record.

On October 16, 1991, Addison also moved to strike and dismiss the Matulis petition on the ground that it was facially invalid because it did not clearly show that the signatories were the record owners of property in the territory or that they were registered voters within that territory (electors). Among other things, Addison objected that many of the signatures were illegible; that there were no addresses given for the signatories, nor were specific lots or parcels identified as belonging to the signatories; there were no facts showing that the signatories were registered voters ("electors") in the territory; and that it was impossible to tell from the petition itself the total number of record owners and electors who would constitute the majority necessary for annexation under section 7-1-2 of the Code. Addison's motion concluded that the petition was factually deficient, was conclusory, and was therefore invalid on its face.

On December 6, 1991, petitioners filed a motion to strike the objectors' motions to dismiss. Among other things, the petitioners urged that the circuit court was required to enter an order setting a hearing and, thereafter, interested persons could file objections (see Ill.Rev.Stat.1991, ch. 24, pars. 7-1-2, 7-1-3); that the cause was to be heard without further pleadings; that the petition was to be supported by affidavit of one of the petitioners that the signatures represented a majority of the property owners and a majority of the electors of the territory; and that a petition so verified must be accepted as prima facie evidence Alternatively, the petitioners argued that their petition was sufficient where it included an affidavit conforming literally to the language of the Code (see Ill.Rev.Stat.1991, ch. 24, par. 7-1-4). Additionally, in response to the motions attacking the jurisdictional requisites of their petition, the petitioners argued that Montalbano's voluntary petition filed with Addison (Addison petition or second petition) on July 11, 1991 (according to Montalbano's supplemental corrected affidavit filed by it controller, Richard P. Brandstatter), did not enjoy priority because on the same day, July 11, Montalbano still had pending and undefeated a prior petition Montalbano had filed with the City of Wood Dale (Wood Dale petition or first petition) which it had not yet withdrawn. Appended was an unsigned affidavit of Geraldine Jacobs, city clerk of the City of Wood Dale; the affidavit stated that she received a letter dated July 11 from Richard L. Wexler withdrawing the pending Wood Dale petition to annex the Moose Lodge Property.

[183 Ill.Dec. 347] of such facts (see Ill.Rev.Stat.1991, ch. 24, par. 7-1-4). The petitioners characterized the objectors' motions as improper and premature.

The petitioners also argued that the Addison petition was not valid because the subject property was not yet contiguous to Addison or was not part of a larger annexation proceeding. The petitioners also characterized the Addison petition as an unauthorized "conditional" petition. On December 10, 1991, the petitioners filed the signed affidavit of Geraldine Jacobs and the Wexler letter of July 11. The Wexler letter was dated July 11, 1992; on it was typewritten the statement "VIA MESSENGER DELIVERY," and it was file-stamped "Received July 12, 1991 City of Wood Dale." In his letter of withdrawal, Wexler explained that another opportunity to annex with Addison pursuant to an annexation agreement would save his clients in excess of $250,000, and he concluded that the prior Wood Dale petition to annex the Moose Lodge Property "shall hereby be deemed to be and shall be null and void."

The supplemental affidavit of Richard P. Brandstatter filed in February 1992 stated that, on November 18, 1991, Addison's village board had passed an ordinance approving the annexation agreement covering the Moose Lodge Property and a rezoning of the property to a B-3 service district; on November 18, Montalbano and Addison had also signed the annexation agreement. Additionally, two landowners in the area between Addison and the Moose Lodge Property had voluntarily agreed to annexation. On November 20, 1991, the owners of certain property between Addison's boundary and the Moose Lodge Property filed their petition to annex the remaining intervening property to Addison (the connecting property petition), and an order of the court approved the connecting property petition on February 6, 1992. After the final action on this connecting property petition, the Moose Lodge Property would have a common boundary with Addison. The village was scheduled to take final action on this connecting property petition on February 18, 1992.

Montalbano's March 5, 1992, reply memorandum in support of its motion to dismiss petitioners' petition and in response to their countermotion argued that, as a result of the court's ruling of February 6 upholding the connecting property petition, the Moose Lodge Property was now contiguous with the Village of Addison and the annexation of the Moose Lodge Property was part of a larger, orderly effort by Addison to lawfully expand its municipal boundaries. According to the memorandum, from July through October 1991, Addison held public hearings and meetings on the annexation of the Moose Lodge Property. On November 18, 1991, Addison passed an ordinance approving the annexation agreement covering the Moose Lodge Property, and the agreement was executed by the parties. The 33-page annexation agreement was appended. Montalbano pointed out that amended section 7-1-8 of the Code provides that the property may be annexed if it is "contiguous to a municipality at the time of annexation." (Emphasis added.) Ill.Rev.Stat.1991, ch. 24, par. 7-1-8. Montalbano also pointed out that section 11-15.1-1 provides that a municipality may enter into an annexation agreement with one or more owners of record and may annex land in the manner provided by article 7 of the Code "at the time the land is or becomes contiguous to the municipality"; the agreement is valid for a period of up to 20 years from the date of execution. (Ill.Rev.Stat.1991, ch. 24, par. 11-15.1-1.) Montalbano urged that the law provided that contiguity did not have to exist at the time it initiated its petition, but contiguity must...