March 14, 2001

No. 2--00--0306

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

This appeal arises from a dispute over the annexation andrezoning of a parcel of land located in unincorporated Kane County. Plaintiffs,Matthew Stroick and Glen De Costa, filed suit in an effort to block defendant,the Village of West Dundee (West Dundee), from annexing and rezoning theproperty, thereby preventing the development of the property by intervenor,Pulte Home Corporation (Pulte). Following a bench trial, the circuit court ofKane County entered judgment in favor of West Dundee and dismissed plaintiffs'first amended complaint with prejudice. Plaintiffs appeal from the trial court'sorder, arguing that (1) West Dundee may not annex the property under the"forest preserve exception" to the annexation statute, and (2) thetrial court incorrectly determined that West Dundee legally rezoned theproperty.

The property at issue consists of 239 acres of unimprovedland located east of Randall Road, south of Route 72, and west of Sleepy HollowRoad. It is contiguous to the Village of Sleepy Hollow (Sleepy Hollow) on thesouth and east sides and the City of Elgin on the west side. The property isseparated from West Dundee by an approximately 130-acre parcel of land that theparties refer to as the Schweitzer property. Plaintiff Stroick resides in SleepyHollow, adjacent to the subject property. Plaintiff De Costa is a resident ofWest Dundee who lives about one-half mile from the subject property.

In April 1997, Pulte contracted to purchase the property fromGalvin Partnership. The contract was conditioned upon West Dundee annexing andrezoning the property. Pulte planned to build homes on most of the property, andoffices and commercial buildings on a portion of the property.

Late in May and early in June 1999, Galvin Partnership andPulte filed petitions to annex and rezone the property. On May 14, 1999, WestDundee and Pulte published notice of a public hearing for the proposed rezoningin the Daily Herald newspaper. The notice did not correctly describe theproperty. The next day, a new notice was published, which contained two legaldescriptions of the property. One of the descriptions was accurate, and theother one was the same inaccurate description that had been published theprevious day. The new notice did not indicate which description was the correctone.

West Dundee also mailed notices of the public hearing tothose persons who, according to the county tax collector's records, residedwithin 250 feet of the property. When more than one name appeared on the taxcollector's records for a particular property, West Dundee sent notice to onlyone of the named individuals. Thus, plaintiffs alleged, 70 individuals whosenames were in the tax collector's records were not sent notice of the publichearing. Both plaintiffs attended and participated in the public hearing.

On July 1, 1999, West Dundee passed ordinances annexing andrezoning the property. West Dundee annexed the property pursuant to section7--1--1 of the Illinois Municipal Code (65 ILCS 5/7--1--1 (West 1998)), whichprovided, in relevant part:

"Except in counties with a population of more than 500,000 but less than 3,000,000, territory which is not contiguous to a municipality but is separated therefrom only by a forest preserve district may be annexed to the municipality pursuant to Sections 7--1--7 or 7--1--8 ***." 65 ILCS 5/7--1--1 (West 1998).

Prior to the annexation and rezoning, plaintiffs filed averified motion for a temporary restraining order and preliminary and permanentinjunctions and a verified complaint seeking injunctive and declaratory relief.The trial court entered a temporary restraining order but, following a hearing,denied the motion for a preliminary injunction. After the annexation, plaintiffsfiled an amended complaint that added an action against West Dundee in quowarranto and also sought declaratory and injunctive relief.

At trial, plaintiffs argued that West Dundee's annexation wasinvalid because the Schweitzer property, which separated the subject propertyfrom West Dundee, was not a "forest preserve district." Plaintiffsasserted that the Kane County Forest Preserve District (district) did not followproper procedures for accepting conveyance of the Schweitzer property.

The evidence showed that Emily Schweitzer transferred titleto the district by a quitclaim deed that was dated August 29, 1990, and recordedon September 19, 1990. The conveyance was subject to the reservation of a lifeestate for Schweitzer's benefit. The deed also incorporated certain perpetualconservation restrictions. In addition to the deed, Schweitzer and districtpresident Phil Elfstrom signed a "Conservation and PreservationAgreement," which provided in part that the district could not possess orcontrol the property while Schweitzer was still alive.

Schweitzer did not want anyone to know about the conveyancewhile she was alive. Accordingly, when the district's executive committee met,Elfstrom advised the committee of a large donation of land but did not identifythe land or the donor. Because of the requirement that the conveyance remainsecret, the committee did not vote on whether to accept the donation of theSchweitzer property.

The trial court also heard evidence on whether the districtever met with the mayors or village presidents of the surrounding communitiesregarding the acquisition of the Schweitzer property. Elfstrom testified that hehad no recollection of doing so. The village presidents of Sleepy Hollow andCarpentersville and the village manager of West Dundee testified that they hadno record or recollection of any such meeting. Steven Sullivan, the district'sattorney, testified that he advised the district that it was required to meetwith the corporate authorities of the municipalities within 1