HARRIS TRUST & SAVINGS BANK et al., Appellee, v. THE VILLAGE OF BARRINGTON HILLS, Appellant.
No. 68158
Supreme Court of Illinois
December 21, 1989
Rehearing denied January 29, 1990
133 Ill. 2d 146
CHIEF JUSTICE MORAN; RYAN, J., concurring
Schain, Firsel & Burney, Ltd., of Chicago (Thomas R. Burney and Matthew M. Klein, of counsel), for appellee.
John M. Mullen, of Waukegan, for amicus curiae Village of Long Grove.
Fred L. Foreman, State‘s Attorney, and Mitchell L. Hoffman, Assistant State‘s Attorney, of Waukegan, for amicus curiae County of Lake.
Kelly R. Welsh, Acting Corporation Counsel, of Chicago (Ruth M. Moscovitch and John D. McDonough, Assistant Corporation Counsel, of counsel), for amicus curiae City of Chicago.
Erwin W. Jentsch, Corporation Counsel, of Elgin, for amicus curiae City of Elgin.
Thomas W. Kelty, of Pfeifer & Kelty, P.C., of Springfield, for amicus curiae Illinois Municipal League.
CHIEF JUSTICE MORAN delivered the opinion of the court:
Harris Trust & Savings Bank, Faith Lutheran Church of Meadowdale, Caryl C. Wilder, Jonathan T. Wilder and Phillip E. Bash (collectively, plaintiffs) originally filed a petition in the circuit court of Cook County pursuant to
The question to be decided is whether disconnection of the subject parcel will unreasonably disrupt the growth prospects and plan and zoning ordinances of the village. (
The village covers nearly 27 square miles, 25% of which is forest preserves and other permanent open space, and over 90% of the village, including the preserves and open spaces, is zoned R-1 (single-family residence district), which requires a minimum lot size of five acres. Plaintiffs are the owners of record of approximately 95 acres situated on the village‘s western limit at its border with Carpentersville. The property, resembling an inverted “L,” is located on the south side of Helm Road about a quarter of a mile east of Route 25.
At trial both sides presented expert witnesses. Plaintiffs’ experts were John Coleman and Steven Lenet. Coleman, a realtor and real estate appraiser, stated the impact of disconnection would be minimal because the residential properties to the east were all developed and the Kane County forest preserve would not be affected at all. On cross-examination, Coleman stated that he was asked to appraise the property assuming a number of scenarios ranging from five-acre lots to development of multiple-family housing at a density of 12 units per acre. He thought development at 12 units per acre was unrealistic, but said that type of development would have a greater impact on the surrounding area than development of five-acre lots, as there would be more people, traffic and activity. He concluded, however, that the impact would be cushioned because of the buffer provided by the forest preserve and other existing properties in the area.
Lenet, a land-use consultant, testified that disconnection would not unreasonably disrupt the plan or zoning ordinances nor would it unreasonably disrupt the village‘s growth prospects, because under the current zoning only 14 or 15 lots could be developed. He said the property was unlikely to develop under that zoning, and
Robert Kosin, Donald Klein, Lane Kendig and Richard Roddewig testified for defendant. Kosin, the village‘s director of administration, said the comprehensive plan set forth objectives which the village would like to maintain in planning unit seven, the unit in which the subject parcel is located. He testified about the usage of Helm Road, but was not asked if disconnection would disrupt the village‘s growth prospects, plan or zoning ordinances; however, he said the village opposed disconnection because it “circumvents our planning and zoning.” On cross-examination, he said disconnecting the property would not affect the majority of objectives set forth in the comprehensive plan for planning unit seven.
Klein, executive director of the Barrington Area Council of Governments, said disconnection was simply a way of avoiding the planning and zoning process. He said disconnection would unreasonably disrupt: the village‘s growth prospects, because it would fragment its western edge; the planning ordinance, because planning implies continuity and disconnection would upset that continuity; and the zoning ordinance, because disconnection would fragment the village limits. He said the property could be developed at its current zoning using “mitigating devices” to shield it from “the Barbary Coast” of Carpentersville. On cross-examination, Klein stated that if the property were disconnected the village limits would be less fragmented than at present.
Kendig, a land-use consultant, stated disconnection would unreasonably disrupt the village‘s growth prospects because it would remove the property from the village, thereby making it unavailable for village growth, and would undermine the land market in the village. He said that disconnection would unreasonably
On cross-examination, Kendig said the threat disconnection posed was in serving as a precedent for future disconnections. He admitted, however, that there had been two prior judicial disconnections over the past 25 years; that those cases were known within the village and there had been no rush to disconnect. He also said this was “basically” a zoning case, that if the property were disconnected the village could still use its extraterritorial zoning powers to influence the parcel‘s development, and that he was unqualified to determine market value.
Roddewig, a real estate appraiser, said the parcel could be developed as zoned because of the strong market for residential development in the village. He added that disconnection would disrupt the growth prospects because it would affect property values. On cross-examination he said he was unable to assign a dollar value to the disruption that disconnection would have on market values.
The village argues that: the appellate court erred by giving the disconnection statute (
It is universally recognized that municipal corporations are creatures of the State and that, absent constitutional restraints (e.g., voting rights (Gomillion v. Lightfoot (1960), 364 U.S. 339); “home rule” (
Here, the owners had their choice between two methods of disconnection: petitioning the corporate authorities (
The requirements for this type of petition are set forth in the statute. (
The village maintains that the appellate court erred in applying a liberal construction to the disconnection
The legislature has determined that a need exists for disconnection proceedings, and it has fixed the calculus and set the ground rules for the proper invocation and exercise of that power. Since this court‘s decision in Punke v. Village of Elliott (1936), 364 Ill. 604 (which upheld the constitutionality of the 1935 judicial disconnection statute), the appellate court has consistently construed the disconnection statutes liberally. See, e.g., Indian Valley Golf Club, Inc. v. Village of Long Grove (1988), 173 Ill. App. 3d 909, 915; In re Disconnection of Certain Territory from the Village of Machesney Park (1984), 122 Ill. App. 3d 960, 965; In re Petition to Disconnect Certain Territory from the City of Palos Heights (1961), 30 Ill. App. 2d 336, 342; Van Bebber v. Village of Scottville (1957), 13 Ill. App. 2d 458, 465; Wolbach v. Village of Flossmoor (1946), 329 Ill. App. 528, 531.
During this same time the legislature had occasionally amended the disconnection statute, but the purpose, to facilitate the disconnection of property where the requisite factors have been met, has remained the same. Significantly, the legislature has not altered the liberal construction given the statute by the appellate court.
Nor can it be said that a liberal construction of the statute shifted the burden of proof. As plaintiffs acknowledged, the requirements of the statute must still be borne by the party seeking disconnection. (
The village maintains that the appellate court erred by adopting a “simplistic and narrow definition of the term ‘growth prospects.‘” It asserts that the appellate court limited growth prospects to geographic growth through annexation. A reading of the opinion discloses that the term “growth prospects” was not limited to a geographic plane. (177 Ill. App. 3d at 677-78.) This contention is therefore without merit.
The village also contends that a court should consider the effect disconnection will have on the growth prospects of land remaining in the municipality. It is beyond dispute that the court should be permitted to examine the reasonableness of the disruption that disconnection will have on the growth prospects of the village. That is, after all, one of the elements of factor four.
Factor four focuses on the disruption a disconnection will have on the growth prospects and plan and zoning
Accordingly, the appellate court correctly found that by using “the term ‘growth prospects,’ the legislature did not intend that courts should look to development that would occur in the remaining part of the municipality but for *** disconnection.” (177 Ill. App. 3d at 678.) Neither the future development of the site nor the future development of the village are proper considerations under this prong of the statute. Cf.
The village argues next that the trial court‘s finding was not against the manifest weight of the evidence. It reasons that there was conflicting testimony, the trial court saw and heard the witnesses testify and was entitled to make evidentiary and credibility determinations and, consequently, its finding should have been affirmed if there was any evidence in the record to support it. Plaintiffs argue that the trial court‘s finding was erroneous in that their evidence satisfied each factor of the disconnection statute.
One of the purposes of appellate review is to determine whether the lower court committed reversible er-
In ruling on the plaintiffs’ petition, the trial court relied upon the fact that disconnection would adversely affect the land market in the village as a reason to deny it. The appellate court found that the trial court erred in considering market reaction to the disconnection.
The only evidence presented to support the village‘s claim that market reaction would “unreasonably” disrupt its growth prospects and plan and zoning ordinances was the testimony of two of its witnesses. No evidence, economic or otherwise, was presented to support that assertion. The two witnesses testifying to the adverse consequences of disconnection on the market were incapable of rendering an informed opinion regarding the market reaction: Kendig stated he was not trained to determine value, and Roddewig said he did not know the economic impact that disconnection of the site would have on any other property. Hence, their testimony on this point was without foundation and could not be deemed credible. Therefore, the trial court‘s finding was against the manifest weight of the evidence.
Nevertheless, the village argues that there was “plenty” of evidence in the record to support the trial court‘s finding. The record reveals plaintiffs’ experts testified that disconnection would not unreasonably disrupt the village‘s growth prospects and plan and zoning ordinances, as only 14 to 15 lots could be developed, the property was separated from the village by the Helm Woods Forest Preserve, and disconnection would only minimally impact the surrounding area. The village‘s experts opposed disconnection because it would: alter or fragment the village‘s character and boundaries; circum-
The legislature has recognized that some disruption to a municipality‘s growth prospects and plan and zoning ordinances may occur as a result of a disconnection. That alone is no reason to deny a disconnection petition. The test created by the legislature is whether disconnection will “unreasonably disrupt” the growth prospects and plan and zoning ordinances of the municipality.
It states a truism that disconnection will alter the village‘s borders and, following disconnection, the property will not support any growth within the municipality. Similarly, disconnection of one parcel does not serve as precedent for any other disconnection petition. Each case must turn on its own facts and merits. (Indian Valley Golf Club, Inc. v. Village of Long Grove (1985), 135 Ill. App. 3d 543, 550.) Moreover, this is a disconnection case (
Here, the village has planned and zoned its growth prospects for large lot residential development, limiting population and other nongeographic growth. Also, the subject property is zoned R-1, as is over 90% of the 27 square mile village. As the map highlights, the site is surrounded by Carpentersville and virtually isolated from the village by the Helm Woods Forest Preserve, which would buffer any disruption to the village. Applying the “unreasonable disruption” test to the facts of this case leads to the compelling conclusion that disconnection will not unreasonably disrupt the village‘s growth prospects and plan and zoning ordinances.
Judgment affirmed.
JUSTICE RYAN, concurring:
I concur with the holding of the court in this case. However, I write this concurrence to avoid a possible misconstruction of the language of the opinion referring to liberal construction of the disconnection statute. The General Assembly enacted laws which make it possible for territories to be detached from municipal bodies. This, of course, was a recognition by the legislature that when certain conditions prevail, owners of property who desire to have that property detached from the municipality should be permitted to do so. The statute should not be viewed as favoring or disfavoring such detachments, but should be viewed only as a vehicle for doing so.
The opinion in this case finds that the provisions of the statute should be construed liberally in favor of disconnection. The appellate court, in this case, made a one-sentence declaration that “[c]ourts have liberally construed disconnection statutes in favor of disconnection.” (177 Ill. App. 3d 673, 677.) What does that statement mean? What does the opinion of this court, in this case, mean when it proclaims that the liberal construction standard should be applied in favor of disconnection in this case? I fear that the language in this opinion may be construed as lessening the burden of the petitioners in a disconnection proceeding.
Neither case cited by the appellate court in support of its statement that courts have liberally construed disconnection statutes in favor of disconnection concern the burden of proof which the petitioners must bear. In In re Disconnection of Certain Territory from the Village of Machesney Park (1984), 122 Ill. App. 3d 960,
Indian Valley Golf Club, Inc. v. Village of Long Grove (1988), 173 Ill. App. 3d 909, 915, cited in our opinion in this case, is another appeal involving the same detachment proceedings which were involved in the case referred to above, cited by the appellate court and reported at 135 Ill. App. 3d 543. Here again, in speaking of liberal construction, it appears that the court was referring to liberal construction of the disconnection statute and not of evidence supporting disconnection. In re Certain Territory of Palos Heights (1961), 30 Ill. App. 2d 336, 340, also cited in this court‘s opinion, concerns whether the city should have been estopped from raising a defense to the disconnection proceedings. After reciting the liberal construction rule, the appellate court found that the trial court‘s finding that the city officials procured the delay in filing the disconnection petition was supported by the evidence. Thus, it is not clear, in this case, in what context the liberal construction rule was applied. In Van Bebber v. Village of Scottville (1957), 13 Ill. App. 2d 458, 465, the court applied the liberal construction rule to the lan-
In reading the above cases, and indeed in reading the opinion of the court in this case, one may be led to believe that the evidence in the case must be construed liberally in favor of disconnection. I write this concurrence only to prevent a possible misconstruction of the holding in this case to that effect. The liberal construction rule should apply to construing the terms or requirements of the statute and should not be applied to the evidence presented in favor of disconnection. As noted in Van Bebber, the owner seeking disconnection has the burden of presenting a case which brings the property within the requirements of the statute. The person seeking detachment must prove his case; that is, that the property falls within the requirements of the statute, by a preponderance or a greater weight of the evidence. As in any judicial proceeding, the scales should not be tilted, but should be evenly balanced; that is, the evidence presented in favor of disconnection should not be liberally construed to favor disconnection and the evidence opposing disconnection should not be strictly construed against those who oppose the petition to disconnect.
ZONING DISTRICTS
BARRINGTON HILLS
- R-1 SINGLE FAMILY 5 ACRES
- R-2 SINGLE FAMILY 2 ACRES
- B-3 GENERAL BUSINESS DISTRICT
- LID LIGHT INDUSTRIAL DISTRICT
CARPENTERSVILLE
- R-2 SINGLE FAMILY RESIDENTIAL
- R-4 MULTI FAMILY RESIDENTIAL
- C-1 NEIGHBORHOOD COMMERCIAL
- C-2 GENERAL COMMERCIAL