Rule 23 Order filed
August 8, 2000;
Motion to publish granted
September 13, 2000.
Opinion filed
September 13, 2000.                           NO.5-99-0233                                   

                              APPELLATE COURT OF ILLINOIS

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JUSTICE HOPKINS delivered the opinion of the court:

The petitioners, 697 voters of Madison County (petitioners), appeal the trial court'sorder dismissing their petition for incorporation as a village. On appeal, petitioners contendthat the trial court erred in reducing the population of the proposed Village of Mitchell tobelow 7,500 because of annexation activities of the City of Edwardsville (Edwardsville) andthe City of Granite City (Granite City), thereby requiring the consent of the municipalitieslocated within a mile and a half of the boundary of the proposed Village of Mitchell understatutory law. See 65 ILCS 5/2-3-5a (West 1998). Petitioners contend that the twoannexation ordinances were defective and that the trial court erred in not adjusting theboundary lines of the proposed village, to the extent that any of the annexations by GraniteCity or Edwardsville were valid, to eliminate those territories from the proposed village.

On their cross-appeal, the Village of Pontoon Beach, Edwardsville, and Granite Citycontend that the trial court erred in not granting their motion for judgment on the petitionof incorporation because of jurisdictional defects in the petition and because the petition forincorporation failed to meet statutory requirements in its legal description and boundaries. We affirm.

Petitioners filed a petition for incorporation for the proposed Village of Mitchell onAugust 20, 1998. Prior to the filing of the petition, Granite City and Edwardsville filedannexation petitions and numerous annexation ordinances. Specifically, Granite City passed74 annexation ordinances that pertained to land located inside the boundaries of theproposed village. In addition, Edwardsville passed an annexation ordinance pertaining toproperty owned by Charles and Helen Mueller (the Mueller property). A portion of theMueller property was included in the boundary of the proposed Village of Mitchell. UnionElectric Development Company (Union Electric) filed a petition for annexation with GraniteCity, and Granite City passed annexation ordinance number 7033 annexing the UnionElectric property to the city. Gateway Commerce Center Investment Company, L.L.C.(Gateway) filed a petition for annexation with Edwardsville.

After the petition for incorporation was filed, Pontoon Beach, Granite City, Edwardsville, Union Electric, William and Fannie Jennings, Virgil and Trudy Jennings, andGateway filed motions to intervene and objections to the petition for incorporation. Theobjections varied but encompassed the following: that the petition for incorporation isdefective in that it did not contain a sufficient legal description; that the area to beincorporated contains less that 7,500 people; that the surrounding municipalities within amile and a half of the boundaries of the proposed village do not consent to the petition forincorporation; that the area of the proposed village is not contiguous; that the legaldescription of the proposed village contains property already located within othermunicipalities; and that the area to be incorporated is in excess of the map approved by theMadison County Land Use Commission. The court granted the motions for leave tointervene.

At the hearing on the petition for incorporation, James Marty testified that he is alicensed professional land surveyor and engineer. Marty prepared the map for thepetitioners' petition for incorporation. He stated that the area included in the proposedVillage of Mitchell is 7.28 square miles and that the estimated population of the proposedvillage, based upon 1990 federal census figures, is 8,039 people. Marty did not consider anyof the annexation ordinances of Granite City or Edwardsville in his tally of the populationfor the area. However, Marty stated that if Edwardsville's annexation ordinance for theMueller property is valid, then the population of the area commonly known as Poag, whichis affected by the Mueller annexation, is 305 people. Marty did not believe that thepopulation of the proposed village should be reduced by this amount, as the Poag area is stillconnected to the Mitchell area by a railroad right-of-way that is approximately 126 feet wideand 1600 feet long.

Marty acknowledged that the population reduction for the Village of Mitchell wouldbe 370 if the Lindsay annexation by Granite City was considered valid. Similarly, if theGranite City annexation ordinances were considered valid, then the annexation ordinancesnot associated with the Maryville Road annexation ordinance would reduce the populationof the proposed village by 113 people. Lastly, Marty stated that if the Union Electricproperty was validly annexed, the population of the proposed village would be reduced by97 people.

The evidence deposition of Joseph M. Juneau was introduced into evidence. Juneautestified that his calculation of the population of the proposed village, based on 1990 federalcensus figures, is 7,980. Juneau considered the completed and pending annexations toEdwardsville and Granite City and made five adjustments to the proposed village'spopulation. The first adjustment was based upon the Mueller-property annexation. Juneaureduced the proposed village's population because the Mueller-property annexation severedthe Poag area from the Mitchell area, making the Poag area noncontiguous to the Mitchellarea. The population of the Poag area reduced the proposed village population by 305people. The second adjustment made by Juneau was based upon the Lindsay-propertyannexation. Again, the Lindsay-property annexation completely severed the southeastportion of the proposed village, making that area noncontiguous. According to Juneau, theLindsay-property annexation reduced the proposed village's population by 479 people. Juneau's third adjustment to the population was based upon the annexations by Granite Cityon August 18, 1998, as these annexations were completed before the petition forincorporation was filed. The annexations by Granite City, including the Maryville Roadannexation and the annexations associated with Maryville Road, reduced the population forthe proposed village by 192 people. The fourth adjustment, based upon Union Electric'spreannexation agreement with Granite City and the proposed annexation of the Jennings'sproperty, would reduce the proposed village's population by 97 people. Juneau's lastadjustment was based upon a number of preannexation agreements filed with Granite City;however, the properties involved were not contiguous with Granite City, so he did notreduce the population for the proposed village because of these adjustments. If thesepreannexation agreements are considered, the population of those areas is 255. By Juneau'scalculations, he determined that the total population of the proposed village after theadjustments is 6,653. The trial court determined in its written order of January 28,1999, that the Granite City annexation petitions were filed prior to the incorporation petitionand take priority over the incorporation petition. The court held that Granite City'sannexation ordinances were effective and that the Granite City and Edwardsville ordinancesreduced the population of the proposed Village of Mitchell to 7,251. The court further heldthat since the population of the proposed village is below 7,500, the statutory requirementsof section 2-3-5a of the Illinois Municipal Code (65 ILCS 5/2-3-5a(a) (West 1998)) werenot met. The court also determined that the boundary of the proposed village wasinaccurately described and platted because the properties annexed by the cities of GraniteCity and Edwardsville were not reflected in the plat map for the proposed village. Therefore, the trial court denied the petition for incorporation, found the petition forincorporation to be invalid, and dismissed the petition for incorporation with prejudice. Petitioners filed a timely appeal, and the municipalities cross-appeal.

Petitioners contend that the trial court erred in dismissing the petition forincorporation. Petitioners claim that the court should not have reduced the population andshould not have found that the boundary of the proposed Village of Mitchell was inaccuratedue to Granite City's and Edwardsville's annexation ordinances. Under this issue, petitionerspresent five subissues: (1) that the Granite City annexation ordinances, passed on August18, 1998, two days before the petition of incorporation was filed, were ineffective andshould not have been considered by the trial court; (2) that the court should not have deletedthe population of the Poag area because the railroad right-of-way made the Poag area andthe Mitchell area contiguous; (3) that Granite City's annexation ordinance concerningMaryville Road was invalid; (4) that various Granite City preannexation agreements shouldnot reduce the population; and (5) that the annexation petitions filed by Union Electric andGateway were abandoned and the court should not have considered that the areas coveredby these two petitions for annexation changed the boundary of the proposed Village ofMitchell.

Case law has established that on the issue of the priority between competingannexation or incorporation proceedings, jurisdictional priority is established by whicheverpetition is initiated or filed first. See In re Petition to Annex Certain Property to City ofWood Dale, 244 Ill. App. 3d 820 (1993); People ex rel. Village of Long Grove v. Village ofBuffalo Grove, 160 Ill. App. 3d 455 (1987). Jurisdictional priority between an annexationpetition and a petition for incorporation does not depend on the validity or the correctnessof the petitions. See In re Petition to Annex Certain Property to City of Wood Dale, 244 Ill.App. 3d at 827. A later petition filed during the pendency of an earlier petition does notlawfully come into being while the earlier petition remains pending and unresolved. See Inre Petition to Annex Certain Property to City of Wood Dale, 244 Ill. App. 3d at 828.

A petition for annexation or for incorporation must allege facts that bring it withinthe statute. See In re Petition to Annex Certain Property to City of Wood Dale, 244 Ill. App.3d at 834. Because a petition is a pleading, it must conform to the statute and show all thefacts necessary to state a legally recognized cause of action; otherwise, the petition will bedismissed. See In re Petition to Annex Certain Property to City of Wood Dale, 244 Ill. App.3d at 834. In dismissing a petition for incorporation, the pleadings are strictly construedagainst the pleader. See In re Petition to Annex Certain Property to City of Wood Dale, 244Ill. App. 3d at 834-35. Because the dismissal of a petition of incorporation is essentially aruling on a motion to dismiss under section 2-619 of the Code of Civil Procedure (735 ILCS5/2-619 (West 1998)), our review of the petition's dismissal is de novo. See In re Petitionfor Submittal of Question of Annexation to Corporate Authorities of the City of Joliet, 282Ill. App. 3d 684 (1996).

Under section 2-3-5a(a) of the Illinois Municipal Code, petitioners must allege in apetition to incorporate that the area to be incorporated is contiguous, contains at least foursquare miles, and has 2,500 inhabitants residing in permanent dwellings. 65 ILCS 5/2-3-5a(a) (West 1998). Further, the petition must allege whether the proposed area forincorporation contains more or less than 7,500 residents. See 65 ILCS 5/2-3-5a(a) (West1998). If the proposed area of incorporation contains less than 7,500 residents and the areais within a mile and a half of the limits of any existing municipality, then the petitioners mustobtain the consent of the municipality before the area is allowed to be incorporated. See 65ILCS 5/2-3-5a(a) (West 1998). The failure to comply with the consent provision of thestatute is a legal defect that will defeat a petition for incorporation of a village. See In reProposed Incorporation of Village of Frankfort Square, Will County, 166 Ill. App. 3d 146(1988).

Here, petitioners' assertion that Granite City's 74 annexation ordinances wereineffective because they were not published is irrelevant. The validity and correctness of theordinances or their initiating petitions for annexation do not matter. What is crucial is whenthe petitions for annexation to Granite City were filed. The record in this case is silent asto when the petitions for annexation to Granite City were filed or initiated; however, sincethe ordinances were passed by the city council of Granite City on August 18, 1998, two daysbefore the petition for incorporation for the Village of Mitchell was filed in the circuit court,the petitions for annexation were filed prior to the petition for incorporation. Because theGranite City petitions for annexation were filed before the petition for incorporation, thepetition for incorporation did not have jurisdictional priority and the territory covered by thepetitions for annexation cannot be considered in the population base for the proposedvillage. At trial, the population involved in the 74 annexation ordinances was asserted tobe 113 people. Therefore, the proposed village's population was properly reduced by thetrial court for this amount.

The statute governing the incorporation of a village also requires that the incorporatedarea be contiguous. See 65 ILCS 5/2-3-5a(a) (West 1998); see also In re ProposedIncorporation of Village of Volo, 229 Ill. App. 3d 321 (1992). " 'Contiguity' has the samemeaning under the disconnection statutes, the annexation statutes, and the incorporationstatutes. [Citation.]" In re Proposed Incorporation of Village of Volo, 229 Ill. App. 3d at327. Contiguity means an actual touching or adjoining of property in a reasonablysubstantial physical sense. See In re Proposed Incorporation of Village of Volo, 229 Ill.App. 3d at 327. Contiguity is determined from the facts of each case; however, point-to-point touching or cornering is not sufficient to satisfy the requirement of contiguity. See Inre Proposed Incorporation of Village of Volo, 229 Ill. App. 3d at 328. Similarly, a narrow"strip" of land used to connect a parcel with the rest of the territory is also not sufficient tomeet the requirement of contiguity. See In re Proposed Incorporation of Village of Volo,229 Ill. App. 3d at 328. There is no fixed rule as to how wide a common boundary must beto establish contiguity, and courts have adopted a liberal construction of the contiguityrequirement. See In re Petition for Annexation of Certain Property to Village of Plainfield,Illinois, 267 Ill. App. 3d 313 (1994); In re Proposed Incorporation of Village of Volo, 229Ill. App. 3d at 328. A trial court's determination as to contiguity will not be overturned onreview unless it is against the manifest weight of the evidence. See In re ProposedIncorporation of Village of Volo, 229 Ill. App. 3d at 327.

Here, implicit in the trial court's ruling is that the areas of the proposed Village ofMitchell that were severed by annexation ordinances were no longer contiguous to theproposed village. Granite City's annexation ordinance concerning the Lindsay propertycompletely severed the southeast portion of the proposed Village of Mitchell from theproposed village, so there was no contiguity for that area. The lack of contiguity for thesoutheast corner of the proposed village required the court to further reduce the populationfor the proposed village by 370 people. The court's finding that the population was reducedby the area severed from the proposed village was not against the manifest weight of theevidence.

Similarly, the trial court reduced the proposed village's population due toEdwardsville's annexation of the Mueller property. Petitioners do not question theannexation ordinance but only contend that the annexation of the Mueller property did notdestroy the contiguity of the Poag area with the rest of the proposed village. Petitionersassert that because there is a 126-foot-wide by 1,600-foot-long strip of land, consisting ofa railroad right-of-way connecting the Poag area with the Mitchell area, the Poag area iscontiguous.

As stated earlier, "strip" annexations have been found to be insufficient to meet thecontiguity requirements under the annexation statute. See 65 ILCS 5/7-1-1 (West 1998); Inre Petition to Annex Certain Territory to Village of North Barrington, 144 Ill. 2d 353(1991). "The purpose of requiring contiguity is to permit the natural and gradual extensionof municipal boundaries to areas which adjoin one another in a reasonably substantialphysical sense." In re Petition for Annexation of Certain Property to Village of Plainfield,Illinois, 267 Ill. App. 3d 313, 318 (1994). The contiguity of an area assures that the deliveryof services is convenient for the city and efficient for its citizens, so that, as a practicalmatter, sewer, fire, police, and other services should not have to pass over or under lands notwithin municipal boundaries. See In re Petition for Annexation of Certain Property toVillage of Plainfield, Illinois, 267 Ill. App. 3d at 318-19.

Here, after the Mueller property was annexed by the City of Edwardsville, the Poagarea was only connected to the Mitchell area by a 126-foot-wide and a 1,600-foot-long stripof land that is a railroad right-of-way. Thus, the connecting ends of the strip of land madeonly a 126-foot common border, a very negligible common boundary. Further, the railroadright-of-way provides no access for the proposed village to provide services to the Poag areawithout going over or under the municipal boundary of Edwardsville. Because this striparea does not meet the requirements for contiguity, the Poag area could not be included inthe proposed area of the Village of Mitchell. The court's reduction of the population of theproposed village by 305 people, the population of the Poag area, is not against the manifestweight of the evidence.

Petitioners present other issues that concern the boundary of the proposed village andthe validity of one of Granite City's annexation ordinances. However, after reducing theproposed village's population by the foregoing amounts (113 for Granite City's August 18,1998, annexations, 370 for the area disconnected by annexation of the Lindsay property, and305 for the Poag area disconnected by the annexation of the Mueller property), thepopulation for the proposed Village of Mitchell is 7,251 people, below 7,500. Because thepopulation for the proposed village is under 7,500, the statute requires that the proposedvillage obtain the consent of the existing municipalities within a mile and a half of thevillage's proposed boundary. Here, the existing municipalities within a mile-and-a-half ofthe proposed Village of Mitchell are Granite City, Edwardsville, Pontoon Beach, Roxana,and Hartford. From the pleadings filed by the objectors, it is clear that Granite City, Edwardsville, and Pontoon Beach do not consent to the incorporation of the proposedvillage. Thus, the petition for incorporation is legally defective for not meeting the consentrequirement of the statute. The trial court was correct in dismissing the petition forincorporation.

Because we affirm the trial court's reduction of the population of the proposed villageand thereby affirm the dismissal of the petition for incorporation, we need not address theremaining issues presented by petitioners on appeal or by the objectors on cross-appeal.

For the foregoing reasons, the judgment of the circuit court of Madison Countydismissing the petition for incorporation of the proposed Village of Mitchell is affirmed.

Affirmed.

KUEHN, J., and MAAG, J., concur.