Village of Kildeer v. Village of Lake Zurich

• Decision Date: 07 April 1988
• Docket Number: No. 2-87-0646,2-87-0646
• Citation: 167 Ill.App.3d 783,521 N.E.2d 1252
• Parties: , 118 Ill.Dec. 559 The VILLAGE OF KILDEER, Plaintiff-Appellee, v. The VILLAGE OF LAKE ZURICH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1252

521 N.E.2d 1252

167 Ill.App.3d 783, 118 Ill.Dec. 559

The VILLAGE OF KILDEER, Plaintiff-Appellee, v. The VILLAGE OF LAKE ZURICH, Defendant-Appellant.

No. 2-87-0646.

Appellate Court of Illinois,

Second District.

April 7, 1988.

Rehearing Denied May 11, 1988.

James S. Gordon, Ltd., Chicago, James S. Gordon, Edward Slovick, James S. Gordon, Ltd., Joseph N. Sikes, Grayslake, for Village of Lake Zurich.

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

Justice HOPF delivered the opinion of the court:

Plaintiff, the Village of Kildeer, brought this quo warranto action to challenge an annexation ordinance adopted by defendant, the Village of Lake Zurich. Lake Zurich's ordinance purported to annex territory included in annexation ordinances previously filed by Kildeer. Lake Zurich appeals from the trial court order which denied its motion for summary judgment and granted Kildeer's motion for summary judgment. Defendant contends that the trial court disposition was error because (1) Kildeer lacked standing to maintain a private quo warranto action, (2) the court failed to determine the validity of Kildeer's annexation ordinances, (3) Kildeer's ordinances were invalid, and (4) Lake Zurich's own ordinance was valid. Upon review we find that this matter must be reversed and remanded.

In February 1986 Kildeer, acting pursuant to section 7-1-2 of the Illinois Municipal Code (Ill.Rev.Stat.1985, ch. 24, par. 7-1-2), filed three separate ordinances seeking to annex certain territory. The trial court found the ordinances valid and set the matters for referenda. On July 21, 1986, Lake Zurich adopted an ordinance annexing territory which partially overlapped Kildeer's proposed annexation. Lake Zurich adopted its ordinance pursuant to section 7-1-8 of the Illinois Municipal Code (Ill.Rev.Stat.1985, ch. 24, par. 7-1-8), which provides for a voluntary petition for annexation by property owners to the proper corporate authorities.

During September and October 1986, in response to motions by affected property owners, the trial court vacated all three of the March 1986 orders which had approved Kildeer's ordinances and set them for referenda. Kildeer appealed and the cases were consolidated.

In December 1986, while its ordinance cases were pending before this court, Kildeer filed an application for leave to file the instant complaint. Lake Zurich moved for judgment on the application alleging that plaintiff lacked standing because its ordinances were invalid. In March 1987 Kildeer was granted leave to file its complaint. Instead of ruling on defendant's motion for judgment on the application, the court indicated that the pending motion would stand as Lake Zurich's motion for summary judgment. Subsequently, the parties formally filed cross-motions for summary judgment. Lake Zurich again challenged Kildeer's standing to bring the quo warranto action alleging that its annexation ordinances were invalid.

After a hearing on the motions the trial court found that Lake Zurich's annexation was invalid because the Kildeer annexation ordinances had been previously filed, were as yet undefeated, and thus enjoyed priority. Kildeer's motion for summary judgment was granted and Lake Zurich's was denied. Lake Zurich then filed this timely appeal.

During the time for filing briefs in the instant matter, we decided the consolidated cases involving Kildeer's ordinances. In two of the cases we affirmed the trial court's vacation of its prior orders and remanded to the lower court for further proceedings. In the third case we reversed the trial court and remanded with direction to allow Kildeer to answer the property owners' motion to vacate. (In re Petition of the Village of Kildeer to Annex Certain Property (1987), 162 Ill.App.3d 262, 113 Ill.Dec. 108, 514 N.E.2d 1020.) Kildeer has now been granted leave to appeal those matters to our supreme court. In re Petition of the Village of Kildeer to Annex Certain Property (1988), 118 Ill.2d 544, 117 Ill.Dec. 225, 520 N.E.2d 386.

On appeal in the instant case Lake Zurich again contends, as a threshold issue, that plaintiff lacks standing to seek relief in a quo warranto action. This contention is based on defendant's argument that Kildeer's ordinances were invalid at the outset and, therefore, Kildeer has no interest whatsoever in the territory annexed by Lake Zurich. Absent an interest, defendant argues, Kildeer has no standing. Defendant insists that the trial court should have determined the validity of Kildeer's ordinances and, assuming they were held invalid, found that Kildeer lacked standing and dismissed its suit. Kildeer responds that the trial court properly exercised its discretion in granting Kildeer leave to file a quo warranto complaint since the village's prior annexation proceedings were still pending and had neither been terminated nor defeated.

We cannot agree with defendant that Kildeer lacks standing on the basis defendant asserts. Standing to bring a quo warranto action cannot be made to depend upon resolution of an issue raised within the quo warranto action itself. On the contrary, a plaintiff's standing to sue must be determined from the allegations of his complaint and as of the time the action is commenced. (People ex rel. Lee v. Kenroy, Inc. (1977), 54 Ill.App.3d 688, 692, 12 Ill.Dec. 455, 370 N.E.2d 78) Thus, a party either has standing at the time the suit is brought or it does not. In this case defendant has raised the issue of the validity of Kildeer's ordinances in response to the quo warranto complaint. Defendant now asks us to resolve that issue and then apply our conclusion to the question of plaintiff's standing. This we cannot do. If plaintiff lacked standing to bring its suit in the first place, questions about its ordinances could never be reached.

Plaintiff's standing in this case does not appear to present a real issue. It is well established that a city whose territory has allegedly been annexed by another city has a sufficient interest to give it standing to initiate a quo warranto action. (People ex rel. Village of Long Grove v. Village of Buffalo Grove (1987), 162 Ill.App.3d 340, 345, 113 Ill.Dec. 629, 515 N.E.2d 438; People ex rel. City of North Chicago v. City of Waukegan (1983), 116 Ill.App.3d 88, 92-93, 71 Ill.Dec. 578, 451 N.E.2d 293.) While the territory claimed to be annexed by Lake Zurich in the present case did not include part of the incorporated Village of Kildeer, it is undisputed that Kildeer had adopted and filed ordinances seeking to annex part of that same territory. It is also undisputed that Kildeer initiated its annexation proceedings several months before Lake Zurich acted and that Kildeer's ordinances, even to the present time, are undefeated. We find Kildeer's interest in the overlapping territory to be sufficient to give it standing in a quo warranto proceeding.

Defendant's reliance on People ex rel. Village of Worth v. Ihde (1961), 23 Ill.2d 63, 177 N.E.2d 313, and People ex rel. Saam v. Village of Green Oaks (1965), 55 Ill.App.2d 51, 204 N.E.2d 149, is misplaced. While both cases involved quo warranto actions challenging competing annexations, standing was not an issue in either of them. In fact, in Ihde every single issue raised by the plaintiff was examined and resolved, including issues which challenged the validity of the defendant's subsequent annexation. Consideration of defendant's argument that plaintiff's annexation was itself invalid was merely one part of the court's overall review. That plaintiff's ordinance was ultimately judicially determined to be invalid obviously did not deprive the village of standing to come into court in the first place.

In Saam, plaintiff's application for leave to file a quo warranto challenge to an annexation by Green Oaks was dismissed because its own annexation ordinance, although initiated prior to defendant's, was invalid. However, Saam did not involve an attempt to bar plaintiff's quo warranto action altogether. On the contrary, the court indicated that the "parties agree and concur in the principle that the Court can determine the issues completely in an action involving a petition for leave to file a quo warranto proceeding [when the facts are before the court and no further proceedings are necessary]." ( Saam, 55 Ill.App.2d at 56, 204 N.E.2d 149.) The court then reviewed the issues raised by the parties and determined that Green Oaks' annexation was valid. Thus, even though plaintiff's prior petition had been found invalid it did not prevent plaintiff's pursuit of defendant in quo warranto. Neither Ihde nor Saam is of help to Lake Zurich on the issue of standing.

Since we have decided the quo warranto challenge was properly brought before the court by Kildeer, we must now determine whether the trial court should have addressed Lake Zurich's attack on Kildeer's ordinances. There can be no doubt that the question of the validity of the ordinances was presented to the court. Lake Zurich raised the issue over and over again through its various motions, pleadings, exhibits, and arguments. The trial court, however, did not reach the question. Rather, it merely found that since Kildeer's ordinances were already pending and undefeated, the subsequent Lake Zurich annexation ordinance was invalid.

Defendant...