                                                    FIRST DIVISION
                                                  November 9, 2009




No. 1-08-2315


AUSTIN BANK OF CHICAGO, as      )        Appeal from the
Trustee under Trust No. 4261,   )        Circuit Court of
                                )        Cook County.
          Petitioner-Appellee,  )
                                )
          v.                    )        No. 01 CH 7882
                                )
THE VILLAGE OF BARRINGTON       )
HILLS, an Illinois Municipal    )
Corporation,                    )        The Honorable
                                )        Peter Flynn,
          Respondent-Appellant. )        Judge Presiding.


     JUSTICE GARCIA delivered the opinion of the court.

     The Village of Barrington Hills (the Village) appeals from

an order granting the petition of Austin Bank of Chicago to

disconnect a 145-acre parcel of land (the subject property) from

the Village's jurisdiction pursuant to section 7-3-6 of the

Illinois Municipal Code (the Code) (65 ILCS 5/7-3-6 (West 2006)).

The Village contends the disconnection of the subject property

leaves two adjacent "barrier parcels"1 at the southeastern corner

of the Village isolated from the remainder of the Village in

violation of section 7-3-6.   Because the record supports the

circuit court's ruling that the Village retained jurisdiction

over the barrier parcels as a legal gimmick to prevent

disconnection of the subject property, we affirm Judge Peter

Flynn's order granting Austin Bank's disconnection petition.

     1
         We adopt this term used by the parties at trial.
1-08-2315


                              BACKGROUND

     Prior to 1997, the southeast boundary of the Village's

jurisdiction was a 45-acre parcel of land directly east of Route

59 (1997 boundary parcel).    The 1997 boundary parcel was part of

a larger 600-acre tree nursery owned and operated by the Klehm

family (Klehm property), which extended farther north and east.

At the time, the remainder of the Klehm property was in
unincorporated Cook County.    Immediately west of the 1997

boundary parcel and Route 59 is the subject property.

     In 1997, Mesirow-Stein, a real estate development firm,

purchased the entire Klehm property, including the 1997 boundary

parcel.   Mesirow-Stein sought to develop all of the Klehm

property for high-density residential housing, a type of housing

not permitted under the Village's zoning laws.    To avoid the

Village's restrictive zoning laws, Mesirow-Stein sought and

obtained a disconnection of the 1997 boundary parcel from the

Village's jurisdiction.
     Had the entire 1997 boundary parcel been disconnected from

the Village, the subject property would have become the

easternmost point remaining under the Village's jurisdiction.

However, two parcels within the 1997 boundary parcel were not

disconnected.   Under a Village ordinance granting the

disconnection of the 1997 boundary parcel, two "barrier parcels,"

each 301 feet in width and less than 2 acres in area, directly


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east of Route 59 and the subject property, remained within the

Village's jurisdiction.   These two parcels became the easternmost

points of the Village's border.

     The central issue in the litigation below was the

significance of the barrier parcels remaining within the

Village's jurisdiction vis-a-vis the petition for disconnection

filed by Austin Bank.   The Village took the position that because
the barrier parcels are the easternmost point still within its

jurisdiction, adjacent to the subject property across from Route

59, the disconnection of the subject property would leave those

barrier parcels isolated from the remainder of the Village in

violation of section 7-3-6 of the Code.   Austin Bank asserted

that the Village only retained the barrier parcels as a

subterfuge to block disconnection of the subject property and,

under existing case law, the circuit court, in giving a liberal

reading to section 7-3-6, which favors disconnection, could find

that disconnection is not defeated based on the isolation of the
artificially created barrier parcels.   We set out at length the

evidence adduced at trial concerning the Village's decision to

retain the barrier parcels.

                Retention of the Barrier Parcels

     On February 9, 1998, Mesirow-Stein representatives and

Village officials met to discuss the possible disconnection of

the 1997 boundary parcel.   The next day, Michael Szkaltukski, a


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developer with Mesirow-Stein, wrote a memo describing "issues

brought to the table by [the Village]" at the meeting.    The memo

discussed the possibility of disconnecting most of the 1997

boundary parcel from the Village, while leaving a small area

within the Village's jurisdiction.    The memo noted, "The

dimensions of the remaining parcel must be sufficient in size to

prohibit the disconnection of [the subject property]."    According
to the memo, Village officials "suggested a minimum of 300 feet"

in width.    Village officials added "that the area which remains

in [the Village] will be reviewed based on their requirement for

storm detention and run off."    Szkaltukski wrote that leaving an

area under the jurisdiction of the Village would prevent

disconnection of the subject property under section 7-3-6 of the

Code because disconnection would make the barrier parcels "an

island."    Szkaltukski testified that there was no engineering

reason to leave some of the 1997 boundary parcel in the Village's

jurisdiction.
     Anthony Iatarola, a beneficiary of the Austin Bank trust

that holds title to the subject property, testified that in the

summer of 1998 he attended a public meeting conducted by Mesirow-

Stein to outline its development plans of the Klehm property,

including the 1997 boundary parcel.    At the meeting, Iatarola

asked Mesirow-Stein's attorney, Ted Novak, whether the 1997

boundary parcel would be disconnected in its entirety.    Novak


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said that remnants of the parcel would remain under the Village's

jurisdiction to act as "legal spite strips," a term commonly used

to describe artificial strips of land created to frustrate a

neighboring landowner's land use right.   See, e.g., J.C. Penney

Co. v. Andrews, 68 Ill. App. 3d 901, 904-05, 386 N.E.2d 923

(1979) (county code "prohibits 'spite' strips in 'new

subdivisions' ").
     Village officials expressed similar reasons for carving out

the barrier parcels from the disconnection of the 1997 boundary

parcel.   Bruce Trego, an administrator from neighboring South

Barrington, testified that Robert Kosin, the director of

administration in the Village, told Trego in the summer of 1998

that the Village planned to maintain jurisdiction over the

barrier parcels to prevent future disconnection of the subject

property.   James Kempe, the president of the Village when the

barrier parcels were retained, testified that he decided to "go

along" with the barrier parcel proposal because he would "rather
lose 43 acres [of the 1997 boundary parcel] than lose the 145 [of

the subject property] across the street."

     In 2000, Mesirow-Stein formally presented a petition to the

Village's zoning board of appeals to disconnect 42 acres of the

1997 boundary parcel, leaving only the barrier parcels under the

Village's jurisdiction.

     Jack Train, the chairman of the Village's zoning board of


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appeals, conducted a public hearing on the petition on June 19,

2000.   In the circuit court below, Train testified that prior to

the hearing, Kosin informed him that the disconnection petition

had been approved by the Village's attorneys to give the Village

a legal ground to oppose any future effort to disconnect the

subject property.   The zoning board hearing focused primarily on

the storm water management benefits the Village would retain by
maintaining jurisdiction over the barrier parcels; protection of

the Village's borders was not expressly raised at the hearing.

     Mesirow-Stein did not file a disconnection petition in the

circuit court.   Instead, on June 26, 2000, the board of trustees

passed an ordinance that disconnected from the Village the 1997

boundary parcel except for the two barrier parcels.

     Some time after the zoning board hearing on the

disconnection of the 1997 boundary parcel, Iatarola met with

Train to express an interest in disconnecting the subject

property.   Train informed him that because the Village retained
jurisdiction over the barrier parcels, the barrier parcels would

legally prevent disconnection of the subject property.

                      Storm Water Management

     In the circuit court, the Village sought to demonstrate the

benefits of its retention of the barrier parcels as part of the

storm water management for the Village.   Robert Gudmundson, a

Mesirow-Stein engineer, testified that the barrier parcels were


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intended to function as storm water detention ponds controlling

the flow of water toward the Village through two culverts that

ran underneath Route 59, immediately east of the subject

property.   Gudmundson also testified that because the Village

retained jurisdiction over the barrier parcels, Mesirow-Stein was

required to submit storm water management plans in the course of

its development of the 1997 boundary parcel within the Klehm
property for the Village's approval.

     To rebut Gudmundson's testimony, Austin Bank introduced

testimony from engineering expert Christopher Burke.   Burke

testified that only 12 acres of the approximately 600 in Mesirow-

Stein's development drained to either of the barrier parcels; the

remainder drained through approximately seven other culverts that

ran under Route 59.   In Burke's opinion, the barrier parcels

provided the Village with no benefit "from a storm water

management perspective."

                  The Petition for Disconnection
     In May 2001, Austin Bank filed its petition in the circuit

court to disconnect the subject property, alleging it satisfied

all six disconnection factors set forth in section 7-3-6 of the

Code.   65 ILCS 5/7-3-6 (West 2006).   The Village filed a motion

to dismiss based on Austin Bank's failure to allege a challenge

to the disconnection ordinance.   Judge Robert V. Boharic granted

the motion, reasoning that because the disconnection of the 1997


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boundary parcel occurred by way of an ordinance, Austin Bank was

required to demonstrate that the ordinance itself was "arbitrary,

capricious, or unreasonable," which it failed to do.

     In May 2002, Austin Bank filed an amended two-count petition

for disconnection.   Count I alleged that the Village's decision

to retain jurisdiction over the barrier parcels was "arbitrary,

capricious, and a sham."   Count II, as an alternative basis for
relief, sought disconnection by leaving a 7.77-acre strip of the

subject property connecting the barrier parcels and the Village

under the Village's jurisdiction.    The Village filed a motion to

dismiss, which Judge Flynn, who had replaced the recently retired

Judge Boharic, denied.

     After discovery, the parties filed cross-motions for summary

judgment.   Judge Flynn granted the Village's motion as to count

II, which argued that the proposed strip to remain within the

Village was "too long and narrow to be 'contiguous.' "   Austin

Bank's motion sought partial summary judgment, contending that
four of the six elements of section 7-3-6 of the Code were

satisfied: (1) the subject property is more than 20 acres in

area; (4) disconnection will not unreasonably disrupt the

Village's plan and growth prospects; (5) disconnection will not

substantially disrupt municipal services facilities such as

sewers and lighting; and (6) the Village will not lose

significant tax revenue from disconnection.   See 65 ILCS 5/7-3-6


                                 8
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(West 2006) (numbering the factors for disconnection).      Judge

Flynn granted Austin Bank's motion, finding that no material

question of fact existed as to factors (4) and (6) and that the

parties were in agreement that factors (1) and (5) were

satisfied.   See 735 ILCS 5/2-1005(d) (West 2006).

     Austin Bank amended count II to propose that the Village

retain jurisdiction over a larger, 24.99-acre strip of the
subject property adjacent to the barrier parcels.      Judge Flynn

denied the Village's motion to dismiss count II as amended.      The

case proceeded to trial on factors (2) and (3) for disconnection

under counts I and II.   See 65 ILCS 5/7-3-6 (West 2006).

     Based on the evidence summarized above, Judge Flynn issued

detailed findings on the record.       Judge Flynn reaffirmed that the

subject property satisfied factors (1), (4), (5), and (6) of

section 7-3-6.   He also found that factor (2) was satisfied as

the subject property "is located on the border of the

municipality."   65 ILCS 5/7-3-6 (West 2006).     With regards to
factor (3), that no "isolation of any part of the municipality"

will result if disconnection is allowed, Judge Flynn found "that

the [only] purpose of the barrier parcels was to block

disconnection of the [subject property]."      Judge Flynn found that

"water management was at best an after-the-fact rationalization,"

and that the testimony suggesting that the barrier parcels gave

the Village significant water management benefits "was just not


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credible."   Noting that cases addressing the factors under

section 7-3-6 "have inveighed against mere subterfuge in

attempting to *** frustrate disconnection," Judge Flynn held that

"the barrier parcels were in fact a sham or subterfuge."     As

such, the isolation of the barrier parcels is "insufficient to

defeat disconnection of the [subject property]."     Judge Flynn

granted Austin Bank's petition for disconnection on count I and,
"in the alternative," on count II.

     The Village timely appeals.

                             ANALYSIS

     The Village first contends that "[b]ecause the Village's

decision to maintain control over the Barrier Parcels was done

pursuant to the Klehm Disconnection Ordinance, *** its decision

is 'presumptively valid,' " citing Village of Algonquin v.

Village of Barrington Hills, 254 Ill. App. 3d 324, 328, 626

N.E.2d 329 (1993).   According to the Village, absent a finding

that the ordinance is invalid, Judge Flynn erred as a matter of
law in finding that the creation of the barrier parcels was a

"sham and subterfuge."   In other words, a presumptively valid

disconnection ordinance forecloses a factual finding that goes

behind the passage of the disconnection ordinance to find the

true intention of the ordinance.     The Village argues that only

upon a finding that the ordinance creating the barrier parcels is

invalid, which Judge Flynn did not enter, can Austin Bank's


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petition be granted.   We disagree.

    We find Village of Algonquin, as the principal authority for

the Village's contention that Austin Bank was "required to prove

'by clear[,] affirmative [and admissible] evidence' that the

Klehm Disconnection Ordinance 'constitutes arbitrary, capricious

and unreasonable municipal action," inapposite to the issue

before us.
     Village of Algonquin involved a direct challenge to the

"validity of a resolution adopted by defendant, the Village of

Barrington Hills" closing a road at Barrington Hills' municipal

border with neighboring Algonquin.    Village of Algonquin, 254

Ill. App. 3d at 326.   As part of its legal efforts to challenge

the Barrington Hills ordinance, Algonquin claimed the ordinance

"was void ab initio because it was adopted for an improper

purpose."    Village of Algonquin, 254 Ill. App. 3d at 328.

Algonquin acknowledged that Barrington Hills "has the right,

pursuant to statute, to regulate the use of its streets.
[Citation.]"    Village of Algonquin, 254 Ill. App. 3d at 328.    In

the context of Barrington Hills' right to regulate the use of its

streets, Algonquin also "recognize[d] the well-established rule

that a municipal enactment, adopted pursuant to statutory

authority, is presumptively valid."    Village of Algonquin, 254

Ill. App. 3d at 328.   Ultimately, the Second District ruled that

the ordinance was not void as "adopted for purely private


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purposes."   Village of Algonquin, 254 Ill. App. 3d at 329.     We

find Village of Algonquin offers no guidance to the issue before

us, whether the six factors for disconnection under section 7-3-6

were satisfied.   See La Salle National Bank v. Village of Burr

Ridge, 81 Ill. App. 2d 209, 225 N.E.2d 33 (1967) (under section

7-3-6, if the circuit court's finding that the requirements for

disconnection have been met is not contrary to the manifest
weight of the evidence, disconnection follows).   Either the

factors are satisfied or they are not.

      Absent direct authority, we reject the Village's implied

argument that because the barrier parcels came into existence by

way of an ordinance that allowed the disconnection of the 1997

boundary parcel (see 65 ILCS 5/7-3-4 (West 2006)), Austin Bank's

petition seeking disconnection by judicial procedure is subject

to factors different than those set forth in section 7-3-6.     We

find no authority under the Municipal Code for the Village's

implied claim that a disconnection petition in the context of
this case should trigger a heightened scrutiny greater than that

required under the express terms of section 7-3-6.   The relief

sought by Austin Bank does not require that it challenge the

Village's Klehm disconnection ordinance.   That the ordinance is

considered to be presumptively valid has no impact on whether the

petition of Austin Bank satisfied the six factors of section 7-3-

6.   Regardless of the outcome of Austin Bank's petition, the


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Village will retain jurisdiction over the barrier parcels, at

least until it decides otherwise.      We reject the Village's effort

to conflate these separate issues.

                       Standard of Review

     Because this is a review of Judge Flynn's decision to grant

a disconnection petition, the standard on review is whether Judge

Flynn's finding that Austin Bank "established the statutory
requirements for disconnection *** is clearly contrary to the

manifest weight of the evidence."      JLR Investments, Inc. v.

Village of Barrington Hills, 355 Ill. App. 3d 661, 668, 828

N.E.2d 1193 (2005), citing City of De Kalb v. Town of Cortland,

233 Ill. App. 3d 307, 310, 599 N.E.2d 153 (1992).

                    Factors for Disconnection

     Under section 7-3-6 of the Code, the owner of record of any

area of land within an Illinois municipality may file a petition

in circuit court to disconnect that property from the

municipality's jurisdiction.   65 ILCS 5/7-3-6 (West 2006).       To
win disconnection, the petitioner must prove that the subject

property satisfies six factors.    65 ILCS 5/7-3-6 (West 2006).

Although a petitioner has the burden to prove that his property

meets each of the statutory factors, "the disconnection statute

is to be liberally construed in favor of disconnection."      JLR,

355 Ill. App. 3d at 668, citing Harris Trust & Savings Bank v.

Village of Barrington Hills, 133 Ill. 2d 146, 154-55, 549 N.E.2d


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578 (1989).   "The common theme is to allow disconnection absent a

hardship or impairment to the municipality."   JLR, 355 Ill. App.

3d at 668.

     In its direct challenge to the judgment below, the Village

contends that Judge Flynn's finding that the isolation factor

does not defeat disconnection is in direct conflict with the

literal language of factor (3) of section 7-3-6: disconnection of
the subject property "will not result in the isolation of any

part of the [Village] from the remainder of the [Village]."    65

ILCS 5/7-3-6 (West 2006).   Austin Bank contends that the manifest

weight of the evidence supports Judge Flynn's finding that the

technical "isolation came about through a sham transaction

engineered by lawyers for the developer and the Village for the

very purpose of preventing Petitioner from exercising its

statutory rights."

     Our primary objective in interpreting section 7-3-6 is to

"ascertain and give effect to the intent of the legislature."
People ex rel. Madigan v. Kinzer, 232 Ill. 2d 179, 184, 902

N.E.2d 667 (2009).   "The best indication of legislative intent is

the statutory language given its plain and ordinary meaning."

Kinzer, 232 Ill. 2d at 184.   However, reviewing courts should

guard against a statutory interpretation that conflicts with the

spirit of a statute.   Where "a literal interpretation of a

particular clause would defeat the [legislature's] obvious


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intent," it does not control.   Grever v. Board of Trustees of the

Illinois Municipal Retirement Fund, 353 Ill. App. 3d 263, 266-67,

818 N.E.2d 401 (2004), citing In re Detention of Lieberman, 201

Ill. 2d 300, 312, 776 N.E.2d 218 (2002).   Thus, reviewing courts

should not literally apply a statute if the result is a "great

injustice that was not contemplated by the General Assembly."

Grever, 353 Ill. App. 3d at 267, citing Robinson v. Meadows, 203
Ill. App. 3d 706, 710, 561 N.E.2d 111 (1990).   Each case under

section 7-3-6 "presents its own problems, and the court can only

adopt a common sense interpretation" of the statute.   Indian

Valley Golf Club, Inc. v. Village of Long Grove, 135 Ill. App. 3d

543, 551, 481 N.E.2d 277 (1985).

     Although disconnection of the subject property would isolate

the barrier parcels, we decline to begin and end our analysis

with a literal interpretation of the isolation factor of section

7-3-6.   In the context of this case, we are compelled to examine

whether such a literal application would reward blatant
manipulation of the factor, as Austin Bank contends.   We examine

the circuit court's findings of fact to determine whether an

injustice would occur should the disconnection be disallowed,

where it appears the Village is unable to demonstrate any

hardship or impairment.   See Grever, 353 Ill. App. 3d at 266-67.

In the context of this case, we consider whether the Village's

actions, as found by Judge Flynn, in creating the barrier parcels


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unduly frustrated the legislative intent behind section 7-3-6,

favoring disconnection.    See Indian Valley, 135 Ill. App. 3d at

550 (condemning a "deliberate attempt to preclude [a petitioner]

from satisfying the [factors] of the disconnection statute");

Village of Fox River Valley Gardens v. Lake County Forest

Preserve District, 224 Ill. App. 3d 919, 934-35, 586 N.E.2d 813

(1992).    Thus, we decline the Village's invitation to limit our
analysis to a "black-and-white" or literal interpretation of the

statute.    We agree with Judge Flynn that a liberal construction

of the factors of section 7-3-6 favoring disconnection requires

that we examine whether the Village's actions amounted to a

deliberate frustration of the statute's intent.

     The legislature intended section 7-3-6 to liberally permit

disconnection "absent a hardship or impairment to the

municipality."    JLR, 355 Ill. App. 3d at 668, citing Indian

Valley, 135 Ill. App. 3d at 547.      While courts have consistently

applied this liberal interpretation of section 7-3-6, "the
legislature has not altered the liberal construction given the

statute."    Harris Trust, 133 Ill. 2d at 154.    It is against the

backdrop of this liberal construction that courts have warned

against the use of "mere subterfuge" or a "legal gimmick" to

frustrate the purpose of statutes concerning municipal borders.

See Wild v. People ex rel. Stephens, 227 Ill. 556, 561, 81 N.E.

707 (1907); Fox River, 224 Ill. App. 3d at 935.


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     Judge Flynn expressly found that "the purpose of the barrier

parcels was to block disconnection of the [subject property]."

This purpose triggered a direct conflict with the legislature's

intent favoring disconnection.   The manifest weight of the record

evidence supports Judge Flynn's finding and his ruling that the

tension between the isolation of the barrier parcels and the

intent favoring disconnection embodied in section 7-3-6 should be
resolved in favor of disconnection.

     Szkaltukski's memo indicated that even in its earliest

discussions with Mesirow-Stein, the Village desired to retain

jurisdiction over a portion of the 1997 boundary parcel

sufficient in size to prevent disconnection of the subject

property.   Mesirow-Stein's attorney Novak reflected the Village's

intent to frustrate future attempts at disconnection by referring

to the barrier parcels as "legal spite strips."   The evidence

demonstrates that the Village officials, Kosin and Kempe, knew

that the barrier parcels were intended as a legal barrier to the
disconnection of the subject property, as they explained in

voicing their support for the disconnection ordinance.    Kosin

informed Train that the barrier parcels were intended to prevent

the possible disconnection of the subject property prior to the

public hearing on Mesirow-Stein's disconnection petition.

     Unable to rebut the persuasiveness of the evidence as to the

Village's motivation for passing the ordinance, the Village


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points to the water management benefits the Village would derive

from the creation of the barrier parcels.2    The Village argues

that Judge Flynn's finding that "water management was at best an

after-the-fact rationalization" is against the manifest weight of

the evidence.     We disagree.

     Both Kempe and Kosin testified that they did not have

engineers assess the significance of any storm water management
of the barrier parcels prior to the enactment of the

disconnection ordiance.     Although the public hearing on Mesirow-

Stein's disconnection petition focused primarily on water

management, the public hearing was held after Train was told by

Kosin of the barrier parcels' role as a means of protecting the

Village's border.

     The claimed value of the barrier parcels as aiding storm

water management was a point of factual dispute before Judge

Flynn.     While Gudmundson, the Mesirow-Stein engineer, testified

that the barrier parcels were intended to provide storm water
retention ponds that would divert water through culverts under

Route 59, he offered no opinion as to the efficacy of the water

retention ponds in serving that purpose.     Austin Bank's

engineering expert Burke testified that only 12 acres of the


     2
         Of course, there is no "benefit" to the Village from the

existence of the barrier parcels if the subject property is

disconnected.

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approximately 600 in Mesirow-Stein's development drained to the

barrier parcels.   According to Burke, the barrier parcels had

little or no role in managing storm water.   It was well within

Judge Flynn's role as finder of fact to find the Village's

claimed need for the barrier parcels for storm water management

as no more than an "after-the-fact" rationale.    See La Salle

National Bank, 81 Ill. App. 2d at 215-16 (it was for the trial
court to resolve conflicting opinions presented by the parties'

expert witnesses).   Our review of the record finds Judge Flynn's

characterization of this offered purpose for the barrier parcels

consistent with the manifest weight of the evidence.

     The Village argues that even if carving out the barrier

parcels from the disconnection of the 1997 boundary property was

motivated by its desire to "protect its borders," protection of a

municipality's border is a legitimate concern in accord with the

spirit of section 7-3-6.   Whether border protection is a proper

consideration under section 7-3-6, our review of two cases,
Indian Valley and Fox River, leads us to conclude that border

protection may not occur by any means.

     In Indian Valley, the Indian Valley Golf Club sought to

disconnect property from the corporate limits of Long Grove.

"[N]early a year and a half after Indian Valley filed its

original petition to disconnect," Long Grove annexed a lot on the

northern border of Indian Valley's property.     Indian Valley, 135


                                19
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Ill. App. 3d at 548.   To avoid isolating the annexed lot, Indian

Valley filed an amended petition carving out a portion of the

proposed land to be disconnected to avoid violating the isolation

factor regarding the annexed lot.    Indian Valley, 135 Ill. App.

3d at 548.

     On review of the dismissal of the amended petition to

disconnect, the appellate court reversed, concluding "that the
proposed disconnection met the requisites of the statute."

Indian Valley, 135 Ill. App. 3d at 551.    The Indian Valley court

rejected Long Grove's claim that the annexed lot was "isolated"

within the meaning of section 7-3-6 "because it is inaccessible

to the village by road and, thus, incapable of being provided

with police services by the village."     Indian Valley, 135 Ill.

App. 3d at 548.   While the holding of the case turns on the

annexed lot sharing a sufficient boundary with the carved out

portion of the subject property not disconnected from Long Grove

"to establish contiguity," the appellate court found Long Grove's
post-petition annexation of the lot was an "offensive *** attempt

to preclude Indian Valley from satisfying the [factors] of the

disconnection statute."   Indian Valley, 135 Ill. App. 3d at 550.

"Giving the statute the liberal construction the courts have

advocated," the Indian Valley court found no isolation under

section 7-3-6 to preclude disconnection.    Indian Valley, 135 Ill.

App. 3d at 551.


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       In Fox River, the Lake County Forest Preserve District

brought an eminent domain action to condemn property annexed by

Fox River Valley Gardens; the annexation was agreed to by the

private partnership that purchased the property.    Fox River, 224

Ill. App. 3d at 921-22.    The private partnership then donated to

Fox River Valley Gardens a 20-foot-wide strip of land within the

property the District sought to condemn, but lying "entirely
within[] the bed of the river."    Fox River, 224 Ill. App. 3d at

923.    As its defense to the eminent domain action, Fox River

argued that condemnation of this "public property" was prevented

by statute.    Fox River, 224 Ill. App. 3d at 922-23.    The trial

court dismissed the Forest Preserve District's eminent domain

action.    Fox River, 224 Ill. App. 3d at 924.

       On review, the Fox River court found the record left "no

doubt that the 20-foot strip was conveyed to the Village for the

immediate and specific purpose of blocking any attempt by the

District to condemn the [condemnation property.]"       Fox River, 224
Ill. App. 3d at 934.    As evidence supporting this finding, the

court quoted from correspondence from the attorney of the private

partnership that conveyed the strip of land to the village,

evidence much like the evidence before us in the instant appeal.

" 'The intent of the conveyances is to create an area of

discontiguity between [the condemnation property] and existing or

proposed publicly owned parks, forest preserves or conservation


                                  21
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areas.' "   Fox River, 224 Ill. App. 3d at 934.    At trial, the

attorney for the private partnership made clear the motivation

behind the conveyance: " 'We're here to tell you that the purpose

of the deeded 20 foot strip is to protect the municipal boundary

from being invaded by the Forest Preserve in the event they

somehow sought to achieve contiguity ***.' *** [T]he mayor of the

Village testified to essentially the same reason for the
Village's acceptance of the 20-foot strips."      Fox River, 224 Ill.

App. 3d at 934.   The court found Fox River's goal to protect its

borders through a "legal gimmick" was "repugnant to the clear

intent" of the legislature.    Fox River, 224 Ill. App. 3d at 934-

35.

      The Fox River court found fatal fault with the conveyance on

two grounds.   First, "the Village, which is a non-home-rule

municipality, may acquire and hold title to real property only

for a legitimate corporate purpose. [Citation.]     As a general

rule, when land is acquired by a municipality, the land itself
must be put to use.    Here, we can think of no way in which a 20-

foot-wide strip of river bottom could serve a corporate purpose

in the usual sense."   (Emphasis in original.)    Fox River, 224

Ill. App. 3d at 934.   Second, "the deed used to accomplish the

donation was subject to what we perceive to be, at the very

least, a questionable requirement for reconveyance at the

Partnership's request."    Fox River, 224 Ill. App. 3d at 936.


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Ultimately, the Fox River court concluded "that the conveyance

was a sham [that] cannot be used to prevent the exercise of the

District's power of eminent domain."      Fox River, 224 Ill. App. 3d

at 936.

       In each case, the reviewing court rejected the efforts of

each    municipality to protect its border through legal gimmickry.

In other words, border protection may not be accomplished by any
means.

       Likewise here, the evidence amply supports Judge Flynn's

finding that the Village's true purpose in retaining jurisdiction

over the barrier parcels was to prevent disconnection of the

subject property.    The Village's manipulation of factor (3) of

section 7-3-6 by creating "an island" of the barrier parcels from

the disconnection of the 1997 boundary parcel to preclude the

satisfaction of the isolation factor by Austin Bank contravenes

the intent of the legislature favoring disconnection.      Indian

Valley, 135 Ill. App. 3d at 550.      Based on the Judge Flynn's
findings, we reject the Village's contention that it engaged in

proper border protection.

       In an effort to distinguish its actions from the actions of

the municipalities in Fox River and Indian Valley, the Village

argues it did not gain any new rights in the barrier parcels when

the 1997 boundary parcel was disconnected; its actions did not

restrict or deprive Austin Bank of any rights to the subject


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property.    However, as Judge Flynn noted, it was the Village's

retention of jurisdiction over the barrier parcels that provided

a technical legal obstacle to the disconnection of the subject

property.    If the entire 1997 boundary parcel had been

disconnected, the Village "would not otherwise have had" a basis

to complain.

     Further, Fox River and Indian Valley make clear that actions
by a municipality to protect its borders are subject to challenge

when the actions constitute a sham or legal gimmick that stand in

the way of giving deference to the legislature's intent favoring

disconnection.    That the Village acted in anticipation of Austin

Bank's disconnection petition does not insulate its efforts from

challenge.    It is the improperly motivated actions that are

offensive to the legislative intent.    The Village's retention of

the barrier parcels clearly frustrated section 7-3-6's purpose to

liberally permit disconnection.    See JLR, 355 Ill. App. 3d at

668; Harris Trust, 133 Ill. 2d at 154.    The Village retained the
barrier parcels simply to create an artificial hardship, an

action we will not condone.

     As a last-ditch effort to have this court reverse Judge

Flynn's considered findings, the Village contends that Judge

Flynn improperly made additional findings on factors (4) and (6)

in his ruling following trial, even though findings under section

2-1005(d) of the Code of Civil Procedure (735 ILCS 5/2-1005(d)


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(West 2006)) were made by Judge Flynn prior to trial.

     We reject the Village's characterization of Judge Flynn's

recitation of his findings during his ruling after trial on

factors (4) and (6) as additional findings that went beyond what

he stated in his summary judgment ruling.   In its main brief, the

Village contends that Judge Flynn erred by restating his finding

as to factors (4) and (6) because he "barred the Village from
presenting any evidence on these issues by granting summary

judgment on these elements."   We find no error in Judge Flynn's

oral ruling that included mention of factors (4) and (6).   Nor

has the Village provided a single citation to authority for its

claim of error.   See Orzel v. Szewczyk, 391 Ill. App. 3d 283,

287, 908 N.E.2d 569 (2009) ("A party's failure to cite supporting

authority is a violation of Rule 341(e)(7) [now Rule 341(h)(7)],

and we may consider those issues forfeited").

     Because the manifest weight of the evidence supports Judge

Flynn's findings that the isolation of the barrier parcels was
the result of a legal gimmick by the Village to improperly defeat

Austin Bank's disconnection petition and that all other factors

under section 7-3-6 were established to warrant disconnection of

the subject property, we affirm Judge Flynn's order granting

Austin Bank's petition on count I.   Our holding reflects the

Village's inability to demonstrate any "hardship or impairment"

as a result of the disconnection.    JLR, 355 Ill. App. 3d at 668;


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see also Harris Trust, 133 Ill. 2d at 154.

     Finally, because we affirm Judge Flynn's ruling in favor of

Austin Bank on count I, we do not consider the Village's

contention of error in Judge Flynn's ruling in favor of Austin

Bank on count II, providing for relief to Austin Bank in the

alternative.

                              CONCLUSION
     Judge Flynn's finding that Austin Bank's disconnection

petition meets the factors of section 7-3-6 was not contrary to

the manifest weight of the evidence.       Although disconnection of

the subject property would result in the technical isolation of

the barrier parcels, the Village's preemptive efforts to

frustrate disconnection by retaining those parcels through legal

gimmickery defeats its attempt to overturn Judge Flynn's

decision.   We affirm the circuit court's order granting Count I

of Austin Bank's petition to disconnect the subject property from

the Village's jurisdiction.    Because we grant relief pursuant to
Count I, we do not address the grant of alternative relief in

Count II of Austin Bank's petition.

     Affirmed.

     HALL, P.J., and PATTI, J., concur.




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1-08-2315


           REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
______________________________________________________________________________
                  AUSTIN BANK OF CHICAGO, as
                  Trustee under Trust No. 4261,

                                Petitioner-Appellee,

                                v.

                  THE VILLAGE OF BARRINGTON
                  HILLS, an Illinois Municipal Corporation,

                                Respondent-Appellant.

       ________________________________________________________________

                                     No. 1-08-2315

                              Appellate Court of Illinois
                             First District, First Division

                           Filed: November 09, 2009
      _________________________________________________________________

               JUSTICE GARCIA delivered the opinion of the court.

                         HALL, P.J, and PATTI, J., concur.

      _________________________________________________________________

                  Appeal from the Circuit Court of Cook County
                     Honorable Peter Flynn, Judge Presiding
      _________________________________________________________________

For PETITIONER-          John B. Murphey
APPELLEE                 Rosenthal, Murphey & Coblentz
                         30 North LaSalle Street, Suite 1624
                         Chicago, Illinois, 60602

For RESPONDENT-          George J. Lynch
APPELLANT                Aaron H. Stanton

                                          27
1-08-2315


            Daniel S. Klapman
            Burke, Warren, MacKay & Serritella, P.C.
            330 North Wabash Avenue, 22nd Floor
            Chicago, Illinois 60611-3607




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