                               2018 IL App (3d) 160713

                            Opinion filed May 18, 2018
_____________________________________________________________________________

                                       IN THE

                         APPELLATE COURT OF ILLINOIS

                                  THIRD DISTRICT

                                        2018

CHICAGO TITLE LAND TRUST COMPANY,)                 Appeal from the Circuit Court

as Trustee and as Successor to North Star Trust )  of the Twelfth Judicial Circuit,

Company, Successor to Harris Bank, Successor )     Will County, Illinois.

to First National Bank, Under a Trust           )

Agreement Dated October 21, 1979 and Known )

as Trust No. 1689, by HENRY E. JAMES,           )

the Holder of the Power of Direction and the    )

Owner of the Beneficial Interest of the Land    )

Trust,                                          )

                                                )

         Plaintiff-Appellant,                   )

                                                )

         v.                                     )  Appeal No. 3-16-0713
                                                )  Circuit No. 15-MR-2972
THE COUNTY OF WILL, a Body Politic and )
Corporate, THE WILL COUNTY PLANNING )
AND ZONING COMMISSION, an Agency of )
Will County, LENARD VALLONE, an                 )
Individual, BARBARA PETERSON, an                )
Individual, KIMBERLY MITCHELL, an               )
Individual, HUGH STIPAN, an Individual,         )
SCOTT LAGGER, an Individual, MICHAEL )
CARRUTHERS, an Individual, and THOMAS )
WHITE, an Individual,                           )
                                                )
         Defendants                             )  Honorable
                                                )  Roger D. Rickmon,
(Village of Bolingbrook, Intervenor-Appellee). )   Judge, Presiding.
_____________________________________________________________________________
            JUSTICE WRIGHT delivered the judgment of the court, with opinion. 

            Justice O’Brien concurred in the judgment and opinion. 

            Justice Holdridge dissented, with opinion. 

_____________________________________________________________________________
                                                OPINION


¶1          Plaintiff, Henry E. James, appeals from the trial court’s November 17, 2016, order

     granting the Village of Bolingbrook’s motion for summary judgment in plaintiff’s quo warranto

     action against the Village of Bolingbrook. Plaintiff contends that the Village of Bolingbrook

     entered into a sham voluntary annexation agreement with an adjacent property owner in order to

     create contiguous boundaries to reach his property, in violation of Illinois annexation law and

     public policy. Further, plaintiff argues that the Village of Bolingbrook lacked statutory authority

     to involuntarily annex plaintiff’s property because plaintiff’s property was not “wholly bounded”

     by one or more municipalities at the time of the passage of the May 10, 2016, ordinance

     attempting to involuntarily annex plaintiff’s property. We reverse and remand with directions.

¶2                                                FACTS

¶3          This case involves a quo warranto action to invalidate the involuntary annexation of

     plaintiff Henry E. James’s land into the Village of Bolingbrook (the Village). Plaintiff is the

     beneficial owner of two separate land trusts, each containing a parcel of real property located in

     unincorporated Du Page Township, in Will County (collectively, the “James property”).

¶4          One parcel consists of a 3.08-acre vacant lot (the “three-acre parcel”), situated along the

     Interstate I-55 south frontage road, east of Veterans Parkway. The other parcel consists of an

     approximately two-acre lot with a farmhouse (the “two-acre parcel”).

¶5                            I. ComEd’s Petition for Voluntary Annexation

¶6          On November 4, 2015, the Village’s counsel drafted a letter to a senior real estate

     representative of Commonwealth Edison (ComEd), addressing the Village’s proposal to

     voluntarily annex a parcel of land owned by ComEd (ComEd property). The Village’s counsel

     explained that “[a]nnexing this property will allow the Village to annex the adjacent properties.”




                                                     2

¶7          On February 29, 2016, ComEd submitted a petition for voluntary annexation pursuant to

     section 7-1-8 of the Illinois Municipal Code (65 ILCS 5/7-1-8 (West 2016)) to the Village.

     ComEd’s petition requested that the ComEd property be annexed “subject to the satisfaction of

     the Conditions Precedent and the Condition Subsequent in the ComEd Annexation Agreement.”

     ComEd also requested that the Village take such further action as may be necessary or

     appropriate to effect, in accordance with the law, the annexation of the ComEd property into the

     Village “only so long as it is subject to the Annexation Agreement.”

¶8          On March 8, 2016, the Village approved the terms of the ComEd annexation agreement,

     referenced in ComEd’s petition for voluntary annexation. The recitals to the approved ComEd

     annexation agreement state as follows, in relevant part:

                    “At the request of the Village, ComEd has agreed to have the Property

            annexed to the Village as an accommodation to the Village and in reliance upon

            the representations and assurances of the Village, as documented herein, that (i)

            annexation of the Property will not result in any additional restrictions (including

            without limitation any municipal regulations) or any financial burdens of any kind

            or nature whatsoever being imposed by the Village or third parties on the

            ownership, use, and operation of the Property by ComEd or the ComEd

            Companies (except for generally applicable property tax levies, but not special

            assessments or levies attributable to special service areas), and (ii) the Village will

            fully and faithfully perform and observe during the term of this Agreement of all

            of the terms and conditions to be performed or observed by the Village

            hereunder.”

     Section 2B of the ComEd annexation agreement provided as follows:




                                                      3

                   “2B. Conditions Precedent and Subsequent. ComEd’s obligation to

            execute and file the Petition described in Section 2A hereof and maintain it on file

            with the Village, and the annexation of ComEd’s Property pursuant to the Petition

            and this Agreement are hereby expressly made conditional upon the occurrence or

            fulfillment of the conditions precedent set forth below. The conditions precedent

            (collectively the ‘Conditions Precedent’) are as follows:

                   ***

                   (b) The absence of any change in circumstances which in ComEd’s

            reasonable judgment is likely to have a material adverse effect on ComEd or the

            ComEd companies.

                   (c) The absence of any change in circumstances which in ComEd’s

            reasonable judgment obviates the need for the annexation of the Property by the

            Village in light of the Village’s stated municipal objectives.”

¶9          Immediately following the list of conditions precedent, section 2B of the ComEd

     annexation agreement provides as follows:

            “In the event that each and all of the Conditions Precedent have not occurred or

            been fulfilled on or before June 30, 2016, this Agreement, at the option of ComEd

            exercisable by written notice to the City, shall terminate and ComEd shall have no

            obligation to file the Petition or consent to the annexation of the Property or any

            other portion of ComEd’s property. The parties may extend the deadlines set forth

            in this Section by mutual assent without the necessity of amending this

            Agreement. Assent by the Village may be given by the Village Attorney or Senior




                                                      4

              Administrator without additional authorization or direction from the Corporate

              Authorities.”

¶ 10          According to section 3(b) of the ComEd annexation agreement, the ComEd property is

       not subject to any ordinances, regulations, or codes. Further, the Village expressly agreed not to

       permit any of the Village regulations to be applied or enforced against the ComEd property in

       section 3(c) of the ComEd annexation agreement “irrespective of the source of the Village’s

       authority.”

¶ 11          Section 5(a) of the ComEd annexation agreement provides, in relevant part:

                      “The Village hereby agrees to cooperate fully with ComEd and to exercise

              all reasonable efforts with the appropriate township assessor’s office in order to

              ensure that the tax parcel(s) for the Property shall be classified for assessment

              purposes as vacant agricultural land or as any classification otherwise available

              for vacant land that results in the lowest possible assessed value.”

       Section 5(b) of the ComEd annexation agreement provides that “[t]he Village agrees to abate all

       taxes and assessments (other than generally applicable property taxes) that may otherwise be

       levied by the Village upon the [ComEd] Property.”

¶ 12          As part of the approved ComEd annexation agreement, the Village agreed to waive any

       fees and charges that could be imposed on ComEd for annexations or for processing applications

       for zoning amendments in section 6 of the ComEd annexation agreement. Section 7 of the

       ComEd annexation agreement contains the Village’s promise to indemnify ComEd from and

       against any and all losses, damages, and claims incurred by ComEd that arise from the

       annexation or from the disconnection of the ComEd property.




                                                        5

¶ 13          Section 10 of the approved ComEd annexation agreement, titled “Right to Disconnect,”

       provides that ComEd may elect to disconnect from the Village all or any portion of the annexed

       property after one year has passed from the date of the property’s annexation and if the

       disconnection of the property would not, under section 7-1-1 of the Municipal Code (65 ILCS

       5/7-1-1 (West 2016)), disrupt the contiguity of the territory within the Village. Section 10 also

       provides that ComEd has a right to disconnect after six months from the date of the agreement if

       there is a territory immediately adjoining the ComEd property remaining under the jurisdiction

       of Will County and outside the boundaries of any municipality. Finally, section 10 states, in

       relevant part, that “[t]he Village will cooperate fully and in good faith to achieve such

       disconnection and will have no defense or objection to the form or substance of any action taken

       to effect such disconnection.”

¶ 14                          II. Ordinance No. 16-019 Annexing ComEd Property

¶ 15          In addition to approving the terms of the ComEd annexation agreement on March 8,

       2016, on the same date, the Village also enacted ordinance No. 16-019, titled, “Ordinance 16­

       019 Annexing Certain Territory to the Village for Commonwealth Edison Company Consisting

       of +5.12 Acres and Located South of I-55 and East of Veterans Parkway.” Ordinance No. 16-019

       provided, in relevant part:

                      “WHEREAS, the Owner and the Village have entered into a valid and

              binding annexation agreement related to the Subject Property; and

                      WHEREAS, all public hearings, submissions and other legal requirements

              have been accomplished in full compliance with the terms of said annexation

              agreement and with statutes of the State of Illinois and the ordinances of the

              Village of Bolingbrook[.]”




                                                      6

       Section one of ordinance No. 16-019 declares that “[t]he Mayor and Board of Trustees find as

       facts the recitals hereinabove set forth.” Ordinance No. 16-019 provides the annexation of the

       ComEd property was effective and in full force on the date the ordinance was passed on

       March 8, 2016.

¶ 16                            III. Involuntary Annexation of the James Property

¶ 17          On April 12, 2016, the Village enacted ordinance No. 16-033, titled “Ordinance 16-033

       Authorizing Notice of Contemplated Involuntary Annexation of Certain Unincorporated

       Territory.” Thereafter, notice was published in The Bugle, a newspaper of general circulation in

       Will County, not less than 10 days before the passage of the annexation ordinance. Not less than

       15 days before the passage of the ordinance annexing the James property, the Village served

       written notice on the taxpayers of record for the property and gave all required notices to the

       applicable government bodies entitled to notice by statute.

¶ 18          On May 9, 2016, plaintiff sent a written objection to the Village. This written objection

       alleged that the Village’s prior annexation of the ComEd property constituted a gross abuse of

       the annexation process because the sole purpose of the annexation of the ComEd property was to

       enable the Village to force annex the James property by manipulating the boundaries of the

       Village to create contiguity. The objection alleged the preceding annexation of the ComEd

       property, at the Village’s request, violated Illinois public policy.

¶ 19          On May 10, 2016, the Village involuntarily annexed the James property into the Village

       by adopting and passing ordinance No. 16-047, titled, “Ordinance 16-047 Involuntarily

       Annexing Certain Unincorporated Territory.” Ordinance No. 16-047 stated that the Village was

       proceeding under section 7-1-13 of the Municipal Code (65 ILCS 5/7-1-13 (West 2016)) to




                                                         7

       annex unincorporated territory containing 60 acres or less that is wholly bounded by one or more

       municipalities.

¶ 20                                    IV. The Quo Warranto Action

¶ 21           On June 28, 2016, plaintiff filed his complaint in quo warranto in case No. 15-MR-2972

       in the circuit court of Will County, contesting the involuntary annexation of the James property.

       On August 1, 2016, the Village filed a motion for summary judgment as to the complaint in quo

       warranto.

¶ 22           On August 1, 2016, plaintiff filed a motion for judgment on the pleadings in the quo

       warranto action. In the motion, plaintiff asserted that the James property was not wholly

       bounded by one or more municipalities on the date of the involuntary annexation on May 10,

       2016. Further, plaintiff argued that the voluntary annexation of the ComEd property, a necessary

       precursor to the involuntary annexation of the James property, was a sham transaction that

       violated the purpose of the annexation statute and was contrary to public policy.

¶ 23           According to the Village’s response in opposition to plaintiff’s motion for judgment on

       the pleadings in the quo warranto action, filed on September 8, 2016, the Village sought to

       annex the ComEd property because “[t]he addition of the previously unincorporated ComEd

       property to the Village had the effect of wholly bounding the James property by municipal

       territory, thereby satisfying one of the prerequisites for involuntarily annexation” under section

       7-1-13 of the Municipal Code (65 ILCS 5/7-1-13 (West 2016)).

¶ 24           Both parties agreed that the trial court should treat their motions as cross-motions for

       summary judgment. After the motions were fully briefed, the trial court heard arguments on the

       motions on October 7, 2016. At the hearing, plaintiff’s counsel argued as follows, in relevant

       part:




                                                       8

                       “And what they’ve done here is they’ve created a total sham by giving

               Com Ed not [sic] a right to leave the Village or disconnect at any time after one

               year elapsed. So what they did was they didn’t—and this is—they didn’t naturally

               extend their boundaries, bring in a property that would be subject to their

               ordinances, and generate tax revenue for the, for the taxpayer.

                       What they did is they made an agreement to get the property that would

               wholly bound and force-annex our property by making an agreement that’s

               clearly a sham.

                                                            ***

                       So what they did is they temporarily brought in a property owner, not into

               the Village, because it’s really not in the Village. It’s not subject to its ordinances.

               It’s not zoned. It’s not a taxpayer. And that is a complete sham.

                       And that invalidates the, the forced annexation because if you think about

               that, what are the implications of that? They could do—any village could then

               make any deal with anybody and let ‘em walk later, and then force annex the

               property and extend its boundaries. And then after that property leaves, we’re in

               the Village and we’re force annexed against our will.”

¶ 25           Next, the Village’s counsel argued that “the terms of the annexation agreement [between

       the Village and ComEd] are not relevant for this Court to look at.” Further, the Village’s counsel

       stated, in relevant part:

                       “The courts aren’t gonna get down on that. They’re just gonna look at the

               face of the ordinance. Have the Article VII steps been properly taken? If they

               have, it’s a valid annexation.




                                                          9

                                                          ***

                      So that’s—counsel’s doing his job, and doing an excellent at it, trying to

              throw some mud around and call this a sham and attribute evil motives on the

              Village, which clearly are not present. It’s—I understand it’s his job.

              Inappropriate to, to allege some sort of fraudulent activity, though [sic] those

              terms around. It is not appropriate.

                      It’s a valid—we followed the Article VII steps to the T for both properties.

              And unfortunately for counsel, that’s the end of the discussion.”

¶ 26          In response to the Village’s counsel’s argument, the trial court commented, “I think what

       he meant to say was ‘clever,’ not ‘fraudulent.’ ” The trial court later elaborated, “That’s why I

       said ‘clever.’ It works.”

¶ 27          The trial court took the matters under advisement until November 17, 2016. On

       November 17, 2016, the trial court granted the Village’s motion for summary judgment and

       denied plaintiff’s motion for judgment on the pleadings with prejudice. The trial court also made

       a finding under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) that there was no just

       reason to delay enforcement or appeal of the decision. Plaintiff filed a notice of appeal on that

       same date, November 17, 2016.

¶ 28                                                 ANALYSIS

¶ 29          The trial court granted summary judgment in favor of the Village concerning plaintiff’s

       complaint in quo warranto. On appeal, plaintiff submits that the trial court’s decision must be

       overturned because the undisputed facts reveal that ComEd did not have an independent desire to

       have its property annexed to the Village, but submitted the petition for voluntary annexation at

       the request of the Village. Plaintiff contends that the annexation of the ComEd property was a




                                                        10 

       sham proceeding desired by the Village, not ComEd, in order to fulfill the statutory requirements

       for the Village to go forward with the involuntary annexation of the James property once the

       James property was newly and “wholly bounded” by one or more municipalities, as required by

       section 7-1-13(a) of the Municipal Code. 65 ILCS 5/7-1-13(a) (West 2016).

¶ 30           Relying on the holding in In re Petition for Annexation to the Village of Bull Valley, 392

       Ill. App. 3d 577 (2009), the Village requests this court to ignore any events that took place before

       March 8, 2016, the date the ComEd property was annexed to the Village, and focus solely on the

       legality of the Village’s actions that took place after that date.

¶ 31           Summary judgment should be granted only where the pleadings, depositions, and

       admissions on file, together with any affidavits and exhibits, when viewed in the light most

       favorable to the nonmoving party, show that there is no genuine issue of material fact and the

       moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016);

       Pekin Insurance Co. v. Pulte Home Corp., 404 Ill. App. 3d 336, 339 (2010). An appellate court

       reviews summary judgment orders de novo. People ex rel. Alvarez v. Price, 408 Ill. App. 3d 457,

       461 (2011).

¶ 32           Our supreme court has stated: “It is fundamental that a municipality has no power to

       extend its boundaries unless and except in the manner authorized by the legislature so to do.”

       City of East St. Louis v. Touchette, 14 Ill. 2d 243, 249 (1958). Hence, the outcome determinative

       issue in this appeal is whether evidence of subterfuge may be considered by this court in

       determining the validity of the ComEd annexation.

¶ 33           First, we observe that the trial court described the Village’s course of conduct concerning

       the annexation proceedings as “clever” but “not fraudulent.” We agree there is no evidence of

       fraud on the Village’s part. However, we reject the Village’s contention that this court may not




                                                         11 

       properly consider the Village’s conduct prior to the March 8, 2016, annexation of the ComEd

       property because this approach is contrary to well established case law interpreting the plain

       language of section 7-1-3 of the Municipal Code (65 ILCS 5/7-1-3 (West 2016)) and section 7-1­

       4 of the Municipal Code (65 ILCS 5/7-1-4 (West 2016)).

¶ 34          Our supreme court, in City of East St. Louis v. Touchettee, concluded from a reading of

       the entire annexation statute that the statute contemplates “the filing of objections to the petition

       or ordinance for any matter going to the validity thereof ***, as well as for the four specific

       objections set forth in section [7-1-3].” (Emphasis added.) City of East St. Louis, 14 Ill. 2d at

       248. Moreover, Illinois courts have repeatedly and consistently considered evidence of

       subterfuge in determining the validity of a particular annexation. For example, in In re Petition

       to Annex Certain Real Estate to the City of Joliet, 144 Ill. 2d 284 (1991), our supreme court

       stated that it was appropriate for the court “to inquire into the circumstances surrounding

       conveyances accomplished immediately prior to the filing of the petition for annexation,” which

       would allow the court to determine if the petitioners were “attempt[ing] to manipulate the

       [annexation] statute in ways the legislature never intended.” Id. at 292. Additionally, courts have

       scrutinized the sometimes creative attempts of municipalities to annex property, particularly

       where these attempts are “merely a subterfuge to reach outlying areas.” (Internal quotation marks

       omitted.) People ex rel. Village of Forest View v. Village of Lyons, 218 Ill. App. 3d 159, 166

       (1991); see also In re Petition to Annex Certain Real Estate to the City of Joliet, 144 Ill. 2d at

       290-92 (considering petitioners’ alleged “bad faith and subterfuge” in determining the validity of

       an annexation); People ex rel. Village of Long Grove v. Village of Buffalo Grove, 160 Ill. App.

       3d 455, 462 (1987) (“strip or corridor annexations, point-to-point touching, and cornering do not

       satisfy the contiguity requirement because they are merely a subterfuge to reach outlying areas”).




                                                        12 

       Our supreme court has stressed that “[i]t is axiomatic that a party cannot circumvent the purpose

       of the [annexation] statute by doing indirectly what he cannot do directly.” In re Petition of the

       Village of Kildeer to Annex Certain Territory, 124 Ill. 2d 533, 547 (1988).

¶ 35          In this case, the record contains undisputed evidence that the Village initiated contact

       with ComEd by letter on November 4, 2015, when the Village’s counsel addressed the topic of

       voluntary annexation to a senior real estate representative of ComEd. In the letter, the Village’s

       counsel explained that, “[a]nnexing this property will allow the Village to [involuntarily] annex

       the adjacent properties.”

¶ 36          Thereafter, acting on the Village’s desires, ComEd submitted a petition for voluntary

       annexation to the Village on February 29, 2016. However, this petition included a contingency

       that ComEd would seek voluntary annexation of ComEd’s property into the Village “only so

       long as it is subject to the Annexation Agreement” to be considered by the Village on March 8,

       2016. Importantly, the recitals in the approved ComEd annexation agreement, dated March 8,

       2016, reveal both parties contractually agreed that ComEd’s petition for voluntary annexation

       was a product of “the request of the Village” and undertaken by ComEd “as an accommodation

       to the Village.”

¶ 37          In addition, the record does not contain any evidence or testimony establishing a basis for

       this court to conclude that ComEd had any independent interest to become a part of the Village.

       This fact alone distinguishes the facts of Bull Valley from the case at bar. Bull Valley, 392 Ill.

       App. 3d at 587. In Bull Valley, the property owners seeking voluntary annexation provided

       testimony in the trial court regarding their independent reasons for their request for voluntary

       annexation. Id. On this basis, the court in Bull Valley concluded the property owners, not the

       Village, had been the precipitating force for the voluntary annexation. Id. at 587-88.




                                                       13 

¶ 38          Further, in Bull Valley, the property owners and the Village did not formalize their pre­

       annexation discussions into a formal written annexation agreement. Any caveats expressed by

       the property owners prior to the voluntary annexation proceedings in that case were withdrawn

       before the property owners submitted their petition to the Village in that case. Id. at 581. Here,

       unlike in Bull Valley, the Village and ComEd reached a formal written annexation agreement

       containing caveats and then referenced the formal, but contingent, agreement between the

       Village and ComEd as part of the voluntary annexation ordinance approved by the Village on

       March 8, 2016. These distinguishing facts render the Village’s reliance on Bull Valley to be

       unpersuasive.

¶ 39          Having concluded that the existing case law allows this court to consider the

       circumstances prior to March 8, 2016, we focus on the undisputed language of the ComEd

       annexation agreement dated March 8, 2016. This approved formal agreement contained the

       Village’s unusual promise not to tax ComEd or subject ComEd to the enforcement of the

       Village’s regulations and zoning requirements once voluntary annexation occurred. It is even

       more curious that the Village also promised to allow ComEd to disconnect from the Village

       within one year after the annexation date, according to section 10 of the ComEd annexation

       agreement. Further, as evidence of the Village’s true goal, we cannot ignore the undisputed fact

       that section 10 of the ComEd annexation agreement had the effect of allowing ComEd to

       disconnect from the Village in as little as six months if the Village was unsuccessful in force

       annexing the James property. This fact is very telling in our view.

¶ 40          Plaintiff argues public policy becomes intertwined in the issues raised in this appeal

       because disconnection is a matter of statewide concern. See La Salle National Trust, N.A. v.

       Village of Mettawa, 249 Ill. App. 3d 550, 577 (1993). In section 10 of the ComEd annexation




                                                       14 

       agreement, the Village agrees to “cooperate fully and in good faith to achieve such disconnection

       and will have no defense or objection to the form or substance of any action taken to effect such

       disconnection.” Plaintiff relies on section 7-3-6 of the Municipal Code (65 ILCS 5/7-3-6 (West

       2016)) to support the public policy argument by pointing out that the statutory scheme prohibits

       disconnection of less than 20 or more acres but ComEd agrees to not raise an objection if ComEd

       requests to disconnect the 5.12 acres.

¶ 41          As noted by Justice Holdridge in his dissent, this public policy argument is defeated by

       section 7-3-4 of the Municipal Code (65 ILCS 5/7-3-4 (West 2016)). Section 7-3-4 of the

       Municipal Code allows the corporate authorities of a municipality the discretion to disconnect an

       area of any size, including a 5.12 acre area, under certain circumstances. Thus, the Village’s

       promise to cooperate fully by not raising a defense to disconnection of a parcel does not appear

       contrary to the statute. Nonetheless, ComEd’s petition makes it abundantly clear that ComEd

       was not interested in pursuing voluntary annexation unless the Village could promise effortless

       future disconnection proceedings once the forced annexation of the James property became final.

¶ 42          Here, we conclude that the voluntary annexation of the ComEd property, subject to

       certain “clever” contingencies, represents a sham transaction created exclusively for the purpose

       of allowing the Village to reach the James property. On this basis, we ignore this sham

       transaction and conclude that the James property was not “wholly bounded” by one or more

       municipalities, as required by section 7-1-13 of the Municipal Code, on May 10, 2016, when

       ordinance No. 16-047 was adopted. Thus, the Village failed to meet its burden of proving

       compliance with section 7-1-13 of the Municipal Code at the time the ordinance purporting to

       involuntarily annex the James property was enacted. 65 ILCS 5/7-1-13 (West 2016).




                                                      15 

¶ 43            Next, in the interest of a complete analysis, we address plaintiff’s second argument on

       appeal regarding the premature enactment of ordinance No. 16-019 to voluntarily annex the

       ComEd property on March 8, 2016. In support of this argument, plaintiff submits section 2B of

       the ComEd annexation agreement included a timetable for certain contractual conditions that

       prevented the Village from taking any action on the ComEd annexation petition prior to June 30,

       2016. Consequently, we focus on section 2B of the ComEd annexation agreement set forth

       below:

                       “In the event that each and all of the Conditions Precedent have not

                occurred or been fulfilled on or before June 30, 2016, this Agreement, at the

                option of ComEd exercisable by written notice to the City, shall terminate and

                ComEd shall have no obligation to file the Petition or consent to the annexation of

                the Property or any other portion of ComEd’s property.”

¶ 44            Based on the plain language of section 2B of the ComEd annexation agreement set forth

       above, we conclude that the ComEd annexation agreement did not become contractually binding

       on both parties until June 30, 2016, at the earliest. Therefore, we conclude that the voluntary

       annexation ordinance No. 16-019, which was subject to the terms of the ComEd annexation

       agreement, was prematurely approved by the Village in March 2016. The case law requires our

       court to treat the premature annexation of the ComEd property as a nullity. See People ex rel.

       Village of Forest View, 218 Ill. App. 3d at 164. Consequently, we hold that the undisputed facts

       do not establish the James property was “wholly bounded” by one or more municipalities on

       May 10, 2016, when ordinance No. 16-047 was adopted, as required by section 7-1-13 of the

       Municipal Code for an involuntary annexation. 65 ILCS 5/7-1-13 (West 2016).




                                                        16 

¶ 45          Contrary to the Village’s position on appeal, the continuity of boundaries cannot be

       established retroactively to justify a prior attempt to force annex a property. See People ex rel.

       Hopf v. Village of Bensenville, 132 Ill. App. 2d 907, 910 (1971) (holding that the burden is on

       the Village “to prove compliance with the statute at the time the annexation ordinance was

       passed”). We conclude that the subsequent fulfillment of the conditions of the preannexation

       agreement on June 30, 2016, did not relate back to March 8, 2016, in order to make the ComEd

       annexation effective.

¶ 46          Therefore, in light of our conclusion that the ComEd annexation was a sham transaction,

       we hold that the ComEd annexation is a nullity and cannot be used to create contiguous

       boundaries with the James property. In addition, we conclude that the annexation of the ComEd

       property was premature and ineffective because the conditions precedent to the ComEd

       annexation agreement had not occurred or been fulfilled. For these reasons, we conclude that

       plaintiff’s property was not “wholly bounded” by one or more municipalities, as required by

       section 7-1-13 of the Municipal Code, at the time of the passage of the May 10, 2016, ordinance

       attempting to involuntarily annex plaintiff’s property. Hence, ordinance No. 16-047, purporting

       to annex the James property, is a nullity. We reverse and remand to the trial court with directions

       to enter judgment in favor of plaintiff on his complaint in the quo warranto action.

¶ 47                                            CONCLUSION

¶ 48          The judgment of the circuit court of Will County is reversed and remanded with

       directions.

¶ 49          Reversed and remanded with directions.

¶ 50          JUSTICE HOLDRIDGE, dissenting:




                                                       17 

¶ 51          I dissent. In my view, the ComEd annexation and the Village’s subsequent annexation of

       the James property were both valid and effective. None of the facts recounted by the majority

       suggests otherwise. The majority erroneously reverses the trial court’s grant of summary

       judgment in favor of the Village on two separate grounds.

¶ 52          First, the majority concludes that the Village’s annexation of ComEd’s property was

       “invalid” because it was a “sham” transaction initiated by the Village for the sole purpose of

       facilitating the Village’s subsequent annexation of the James property. In assessing the validity

       of an annexation, a reviewing court’s sole function is to “determine whether the petitioners have

       complied with the procedures” prescribed by the legislature in the Illinois Municipal Code

       (Code) (65 ILCS 5/1-1-1 et seq. (West 2016)). In re Petition to Annex Certain Territory to the

       Village of North Barrington, 144 Ill. 2d 353, 361 (1991); see also In re Annexation of Certain

       Territory to the Village of Deer Park, 358 Ill. App. 3d 92, 100 (2005) (“Generally the court’s

       role is limited in annexation proceedings to determining whether there has been compliance with

       the statutory requirements for annexation ***.”).

¶ 53          In this case, it is undisputed that (1) ComEd voluntarily submitted a petition for

       annexation pursuant to section 7-1-8 of the Code (65 ILCS 5/7-1-8 (West 2016)), (2) the Village

       subsequently passed an ordinance to annex the ComEd property, as required by section 7-1-8 of

       the Code, (3) the Village subsequently passed a separate ordinance to involuntarily annex the

       James property, as required by section 7-1-13(a) of the Code (65 ILCS 5/7-1-13(a) (West 2016)),

       (4) the Village authorities published timely notice to the impacted landowners as directed by

       section 7-1-13(b) of the Code (65 ILCS 5/7-1-13(b) (West 2016)), and (5) the Village’s

       annexation of the ComEd property, if effective, would have created contiguity with the James

       property sufficient to allow the Village’s subsequent involuntary annexation of the James




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       property under section 7-1-13 of the Code. It is also undisputed that James had the opportunity to

       file objections to the Village’s annexation of his property, and did so. Accordingly, the parties do

       not dispute that the letter of all the applicable statutory requirements were observed.

¶ 54          Nevertheless, James argued, and the majority holds, that the spirit of those statutory

       requirements was violated because the intent of the parties to the ComEd annexation agreement,

       and the Village’s purpose in instigating that annexation, rendered the annexation invalid.

       Specifically, the majority concludes that the ComEd annexation was an invalid “sham”

       annexation because (1) the ComEd annexation proceedings were initiated by the Village, and

       ComEd agreed to voluntarily annex its territory to the Village purely as an “accommodation” to

       the Village; (2) there is no evidence suggesting that ComEd had “any independent interest to

       become part of the Village”; (3) the Village initiated the ComEd annexation solely to achieve

       contiguity with James property, which enabled the Village to involuntarily annex the James

       property; and (4) ComEd agreed to annex its property to the Village only upon certain

       conditions, including the Village’s contractual agreement not to tax or regulate ComEd after the

       annexation and the Village’s agreement not to object to ComEd’s disconnection from the Village

       within one year of the annexation agreement (or within six months if the Village did not succeed

       in annexing the James property).

¶ 55          None of these facts renders the ComEd annexation invalid. When a landowner submits an

       annexation petition knowingly and of his own volition, as ComEd did here, the fact that a

       municipality instigated or encouraged the petition is of no legal significance. In re Petition for

       Annexation to the Village of Bull Valley, 392 Ill. App. 3d 577, 587 (2009) (rejecting the

       argument that an annexation petition signed by the appropriate landowners but “facilitated and

       encouraged by an interested municipality” may be considered valid “only if the landowners

       make first contact with the municipality,” and ruling that “we see nothing in the Code to prohibit


                                                        19 

       a landowners’ annexation petition, even if encouraged by a municipality that could not directly

       annex the subject territory, where the landowners voluntarily execute the petition”); see also

       Deer Park, 358 Ill. App. 3d at 100 (“it is difficult to conceive that the circuit court could ***

       deny an otherwise valid [annexation] petition merely because [a municipality] encouraged

       petitioners’ efforts to secure annexation of the property”). The intentions of the parties to an

       annexation agreement (i.e., a municipality’s reasons for encouraging the annexation and a

       landowner’s reasons for filing an annexation petition) are legally irrelevant. Bull Valley, 392 Ill.

       App. 3d at 587 (rejecting the argument that, for an annexation petition to be valid, the

       municipality encouraging or facilitating the annexation and the landowners must “have identical

       interests” and ruling that “[t]he process that led the landowners to their knowing and voluntary

       decision to execute the [annexation] petition has no relevance under the Code”). All that matters

       is whether the landowner knowingly and voluntarily submits an annexation petition and, if so,

       whether the statute’s procedural requirements for voluntary annexation are met. As noted above,

       it is undisputed that each of these requirements were met in this case.

¶ 56          The majority further suggests that the ComEd annexation was invalid because the

       annexation agreement provided that the Village would not tax or regulate ComEd after

       annexation and would not object to ComEd’s subsequent disconnection from the Village.

       However, none of these promises by the Village invalidated the ComEd annexation. To the

       contrary, the Code expressly authorizes a municipality to agree to such terms in an annexation

       agreement. See 65 ILCS 5/11-15.1-2(b), (e-5) (West 2016) (stating that an annexation agreement

       may provide for the abatement of taxes and the amendment of certain existing regulatory

       requirements). Moreover, the Code authorizes a municipality to consent to disconnection (65

       ILCS 5/7-3-4 (West 2016)), and an annexation agreement may include an enforceable promise

       by a municipality to allow for disconnection if the conditions of the proposed annexation are not


                                                       20 

       met. Elm Lawn Cemetery Co. v. City of Northlake, 94 Ill. App. 2d 387, 393-94 (1968) (holding

       that a municipality’s promise in an annexation agreement to allow for disconnection if an event

       contemplated by the parties did not occur was enforceable and did not render the annexation

       invalid). Thus, the promises the Village made in the annexation agreement did not flout either

       the letter or the spirit of the Code.

¶ 57           The majority further maintains that the Village’s promise not to object to disconnection

       in this case was against public policy because section 7-3-6 of the Code authorizes the

       disconnection of territory within a municipality only if the territory contains 20 or more acres,

       whereas the ComEd territory at issue in this case contains only 5.12 acres. Supra ¶ 40. However,

       section 7-3-6 addresses land that is disconnected by court procedure, i.e., without the

       municipality’s consent. 65 ILCS 5/7-3-6 (West 2016). A different section of the Code (section 7­

       3-4) addresses land disconnected by corporate authorities (i.e., disconnection with the consent of

       a municipality). 65 ILCS 5/7-3-4 (West 2016). The latter section gives a municipality the

       discretion to disconnect “any territory” within its boundaries and on its border (subject to certain

       procedural requirements) without regard to the size of the territory to be disconnected.

       Accordingly, the Village’s consent to disconnection of the ComEd property in this case did not

       contravene the Code or otherwise violate public policy.

¶ 58           The cases upon which the majority relies are distinguishable. See supra ¶ 34. In each of

       those cases, the party seeking annexation engaged in some type of subterfuge or chicanery in

       order to circumvent statutory requirements or to thwart other landowners from blocking the

       annexation. See In re Petition to Annex Certain Real Estate to the City of Joliet, 144 Ill. 2d 284

       (1991); In re Petition of the Village of Kildeer to Annex Certain Territory, 124 Ill. 2d 533

       (1988); City of East St. Louis v. Touchette, 14 Ill. 2d 243 (1958); People ex rel. Village of Forest

       View v. Village of Lyons, 218 Ill. App. 3d 159, 166 (1991); People ex rel. Village of Long Grove


                                                       21 

        v. Village of Buffalo Grove, 160 Ill. App. 3d 455, 462 (1987). In each of these cases, the

        reviewing court held that one or more of the statutory requirements for annexation (e.g., notice to

        affected landowners, contiguity, statutory limits on the size of the parcel to be annexed) were not

        satisfied. Here, by contrast, the Village acted transparently and complied with all applicable

        statutory requirements. It did not engage in trickery, manipulation, fraud, concealment, or

        subterfuge. The most the Village can be accused of doing is enticing ComEd to agree to annex its

        property to the Village in order to create contiguity with the James property so the Village could

        involuntarily annex the latter. As noted above, such enticement does not render the ComEd

        annexation invalid. Whether this conduct was good policy is a matter left to the municipality’s

        discretion and is beyond the scope of this court’s review.

¶ 59	          As a second ground for reversal, the majority contends that the annexation of the ComEd

        property was “premature and ineffective” because the conditions precedent to the ComEd

        annexation agreement had not occurred or been fulfilled at the time the Village passed an

        ordinance to annex the ComEd property. See supra ¶¶ 43-46. I disagree. The ComEd annexation

        agreement provided that the conditions precedent to ComEd’s obligations under the agreement

        could be satisfied at any time “on or before June 30, 2016” and that satisfaction of those

        conditions was based on ComEd’s judgment alone. ComEd did not object when the Village

        passed an ordinance to annex the ComEd property on March 8, 2016. Nor has ComEd ever

        argued that the agreement’s conditions precedent have not been fulfilled to ComEd’s

        satisfaction. It appears that ComEd implicitly found the conditions precedent satisfied before

        June 20, 2016, as was its right under the agreement. Accordingly, neither the agreement, nor the

        ordinance which incorporated the agreement’s terms, was invalid or ineffective.




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¶ 60          For the reasons set forth above, I conclude that the Village’s annexations of both the

       ComEd and the James properties were valid and effective. I would therefore affirm the trial

       court’s grant of summary judgment in favor of the Village.




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