Village of Chatham v. County of Sangamon

OF CHATHAM, v. THE COUNTY Plaintiff-Appellee, THE VILLAGE OF SANGAMON, Defendant-Appellant. District No. 4 — 03 — 0878

Fourth August 2004. April 14, Opinion filed Argued 2004. Schmidt, Attorney, Bradley John E State’s and J. William and D. Roberts Culbertson, Blodgett (argued), Springfield, both of Hinshaw & ap- both of for pellant. Myers (argued), Rabin, Myers, Durr, P.C.,

John M. Hanken & Springfield, appellee. for

PRESIDING JUSTICE KNECHT delivered the of the opinion court:

Defendant, (County), Sangamon appeals the trial court’s grant judgment of summary plaintiff, Village in favor of of Chatham (65 (Village), finding and its that Division ILCS 15.1 5/11 —15.1—1 (West 2002)) through Municipal 11—15.1— 5 of the Illinois Code) (West 2002)) (65 (Municipal through 11—152—4 5/1—1—1 granted building-code jurisdiction Village zoning over lands (1) argues Specifically, agreements. subject to building-code zoning and had finding the court erred (2) special is unconstitutional 11— 15.1— 2.1 section jurisdiction; an 15.1 (3) of Division made interpretation legislation; the court’s (4) existed to material fact issues of police power; invalid exercise (5) judgment was declaratory summary judgment; preclude affirm. improper. We

I. BACKGROUND Law Statutory and Case A. of Relevant Overview 15.1 legislature passed Division In the Illinois an enter into power Code, granting municipalities Municipal provid territory, unincorporated owners of agreements nexation it became once annexed to ing that the land could be (eff. 1963) July 1963 Ill. Laws 2157 contiguous property. to the 11— through 11—15.1—1 pars. Ill. Stat. ch. (adding Rev. the land to these District held 15.1— In the Second concerning agreements Annexation contiguous. had to be Lisle v. Action declared invalid. noncontiguous land were (1989) Co., Advertising Outdoor (Second District). 11— In amended section municipal for provide 15.1—1 of the Code to permit and an subject agreements the lands to annexation to over noncontiguous lands as follows: agreements nexation to cover agreement adopted “Property subject of an annexation is the control, ordinances, and subject to the [s]ection under this is property jurisdiction municipality respects the same as of the all corporate limits. municipality that lies within its owned property that contiguity of Lack of validity affect the of subject agreement of an annexation does not corporate authorities agreement approved whether amendatory of Act of 1990.” or after the effective date this before (1990 1611, 1, 1169, 1,§ 1991 Ill. Laws January Act eff. Pub. 86— 1612-13). moved to a new sec 1993, paragraph quoted In above was first (section 2.1) Code, provision and Municipal tion 11—15.1— jurisdiction County, of Cook mandating contiguity as condition counties, Act 87— was added. Pub. the collar metro-east area (1992 amended, 3091); see as January § Ill. Laws eff. (West Supp. 65 ILCS 11—15.1—2.1 5/11—15.1— City Springfield v. Judith April In this court decided (2001), Trust, 321 Ill. 3d App. Jones Dietsch Village jurisdic- had City Springfield or determine whether regulate tion to the subdivision of property contiguous to Springfield statutory jurisdiction within its planning subject but to an an- agreement nexation the property between owner and the Village. This court held in property subject cases where conflicting claims jurisdiction, the annexing municipality’s zoning subdivision and jurisdiction overrides another municipality’s statutory grant plan- jurisdiction ning formerly over unincorporated its planning area.

In January 2002 and July this City court held the Springfield statutory rights had superior to both the and the County regulate septic systems extraterritorially, even over lands subject to an agreement, pursuant to section 11—125—2 the Municipal Code and section City 96.019 of of Springfield Code City Ordinances. Springfield Hashman, No. 4—01—0002 2002) (January (unpublished Supreme 23), order under Court Rule vacated & reconsidered, (2002); 774 N.E.2d 427 Ordinances, Springfield 96, § Code of ch. 96.019 In its later resolution, this court did not discuss Judith Dietsch Jones Trust City’s arguments consider the concerning agreement the annexation zoning ordinances. B. Background Procedural of This Controversy In March the Village against filed a complaint County for declaratory judgment jurisdic- that it had and building-code subject tion over the lands agreements pursuant to annexation to sec- tion Municipal 11—15.1—2.1 of the In May County Code. filed a for declaratory it, counterclaim judgment Village, not the legal had over the lands in zoning, issue for building-code, (765 (West 2002)) through and Plat Act purposes. The 205/1 County later dropped portion the Plat Act of the counterclaim. County filed Village’s also two affirmative defenses to the County claim. The claimed section 11— 15.1— 2.1 of the Code was unconstitutional It Divi- special legislation. also claimed 15.1 an of police powers. sion was invalid exercise May 2002, awaiting

In while litigation, the outcome this the Vil- lage stipulation whereby entered into a both the building for to annexation permits could issue lands only charge but would fee. Those fees are of county maintained the clerk the and held in escrow until the of resolution this case.

In Village June 2002 and October the and the filed summary In judgment. cross-motions for June the trial court granted summary judgment Village. in favor of the The found court Municipal grants jurisdiction “Division 15.1 of the Code over lands

893 this court’s on relied The court agreements.” subject to annexation agreed with the and Trust Jones Dietsch holding in Judith 15.1] fol- [Division amendments legislature’s “the intent of the legislatively that decision attempt to overrule an overt lowing Lisle was over zoning jurisdiction building and full extraterritorial give and followed. appeal This agreements.” lands to annexation

II. ANALYSIS zoning has whether We must determine property within jurisdiction unincorporated building-code subject to an an- County but statutory jurisdiction of the zoning appeal on from Village. This case is agreement with nexation in favor summary judgment for of a motion grant trial court’s Village. deposi the pleadings, when

Summary judgment appropriate is affidavits, genuine issues as to admissions, any, if show no tions, judgment moving entitled to party and the any appear material fact 1005(c)(West 2002); America First a matter of law. 735 ILCS 5/2 — (1995). 165, 176, 651 1110 Netsch, N.E.2d Bank v. question be decided as a the trial court can Where the matter before Netsch, Ill. 2d at law, summary judgment appropriate. question is a interpretation The of a statute 651 N.E.2d at 1110. Hall law, interpretation de novo. v. we the trial court’s review (2003). Henn, Ill. 2d A. Jurisdiction Zoning Building-Code section 11— zoning jurisdiction it has under argues pursuant building-code jurisdiction Municipal Code and 13—1 (West 2002)) (55 of the Illinois ILCS to section 5—1063 5/5 —1063 (55 Code) (Counties through 7—1001 Code Counties 5/1—1001 (West 2002)). Municipal Village contends 15.1 of the Division zoning building-code grants municipalities Code controls and agreements. governed by in areas granted legislature, municipalities have expressly Unless City Na jurisdiction beyond corporate limits. Petterson no their Section Il perville, 9 Ill. 2d power grants municipality zoning ls—1 territory not more corporate contiguous and within within its limits municipality’s corporate limits and beyond than miles lVa (West 65 ILCS belonging municipality. to another 5/11—13—1 municipalities limits counties power This section zoning plan as follows: any forth this Division power shall exercise set “No thereof, county if the in which such corporate limits 13 outside 894

municipality is situated adopted has ‘An in county Act relation to zoning’, approved 12, 1935, June as amended.” 65 ILCS 5/11— (West2002). 13—1 Section 5—1063 of the grants Counties building-code counties power over buildings located municipality’s outside a corporate limits as follows:

“For the purpose promoting and of safeguarding the public health, safety, comfort!,] welfare, county may a prescribe board *** or resolution ordinance regulations reasonable rules and *** governing the construction and buildings alteration of all where *** buildings such are cities, villages!,] located outside of the limits towns, and incorporated excluding agricultural but those for purposes including farms on farm residences.” 55 ILCS 5/5—1063 (West2002). 2(b) Pursuant Code, section of Municipal an 11—15.1— agreements for, nexation can provide among other things: “(b) effect, amendment, The continuation in or continuation amended, in effect of any as relating ordinance to subdivision controls, zoning, plan, building, housing!,] official and related restrictions; provided, however, any public hearing required any law to be held before the adoption of ordinance amendment provided the agreement prior such shall be held of the execution

agreement, provided and all ordinance amendments such agreement according shall be enacted to law.” 65 ILCS 5/11—15.1— 2(b) (West2002). property subject “subject ordinances, to these to the control, annexing of the municipality in all respects the same as property annexing lies within the municipality’s (West 2.1(a) 2002). corporate limits.” 65 ILCS 5/11 —15.1— law, of interpretation a statute a matter of and we review the trial court’s County decision de novo. v. The Highlands, Knox of L.L.C., 260 “The rule statutory interpretation give fundamental is to effect to Knox, legislature.” County intention of the 188 Ill. 2d at N.E.2d at 263. We first look to the statute words best Knox, legislative indication of intent. 188 Ill. 2d at clear, plain language N.E.2d at 263. If the of the statute is be must given looking statutory effect other tools of construction. without Knox, Ill. 2d at at N.E.2d 263. We will not language exceptions, and find depart plain from the the statute limitations, legislative or conditions that conflict with the clear intent. Knox, Language 188 Ill. 2d at 723 N.E.2d at 263. free given consequences if ambiguity from and doubt will be effect even the absurd, harsh, County Knox, are or unwise. 188 Ill. 2d at 263. 11—13—1 Code sections Looking language to the find the we Code section 11— 15.1—2.1 and Counties 5— 11— unambiguous. Under section clear and provisions language has zoning ordinance county a county adopted a that has 13— county land within zoning jurisdiction over authority to exercise limits. 65 corporate municipality’s a 5/11 —13—1 and outside 2002). county board to (West permits 5—1063 section Counties Code outside building construction governing rules and ordinances adopt (West 55 ILCS corporate limits. municipality’s 5/5 —1063 jurisdic- grants 11—15.1—2.1 Municipal Code section the property as if agreement subject to an annexation tion an area over limits. 65 ILCS corporate municipality’s 5/11 —15.1— were within (West 2002). 2.1(a) statutes, acted enacting different legislature, in presume

We judicial deci knowledge of statutes and and with full other rationally Secretary State concerning law. State Illinois existing sions (1990). 242, 247-48, We Mikusch, 138 Ill. 2d 562 N.E.2d completely presume would not enact law further expressly repealing without statute. contradicts an earlier statute A construction allow Mikusch, 138 Ill. 2d at 562 N.E.2d at 170. Mikusch, 138 Ill. 2d at ing both statutes to stand will be favored. 562 N.E.2d at 170. in question these we find the statutes

Despite presumptions, another, one and now must determine which directly conflict we Cope, Agreements- R. Annexation generally See prevails. statute Map Walking a Fine Line Into the Future —A Boundary Agreements: Traveler, Ill. U. Rev. Unwary Use 17 N. L. to the Land Dangers (1997) property not annexed within (noncontiguous 380-82 conflicting present problems regard in to period may short of time concepts county municipality). and zoning between argues statutory relating to the County specific provisions The general zoning building-code jurisdiction control over the county’s and Further, concerning jurisdictional agreements. annexation provisions pari in relating zoning to can be construed provision 15.1’s Division Specifically, specific zoning statutes. long-standing materia with the by Third District’s deci County argues is controlled this issue City Naperville, Will v. sion (1992). Will, city zoning jurisdiction county disputed In city contiguous to the by

over lands but not within owned jurisdic- county zoning it had city. argued The corporate limits Code, while the to section 11—13—1 of the pursuant tion jurisdiction language 7—4—2. Similar to the city claimed under section in the case, statute at issue in this section provided 7—4—2 that land by owned the municipality but corporate outside its limits “shall be ordinances, control, to the the municipality respects in all same the property owned the added.) which lies within the corporate limits (Emphasis thereof.” Rev. 24, par. Stat. ch. 7—4—2. The Third District held the inconsistent, statutes were not but that section general 7—4—2 was a provision jurisdic describing the tional scope of a municipality’s authority, while section 11—13—1 specifically a municipality’s detailed zoning powers. The court held section 11—13—1 controlling was could not be broadened general jurisdiction provisions Will, of section 7—4—2. Ill. App. 3d at 589 N.E.2d at 1092. The Village argues County controlling Will is not because the Third jurisdictional District noted the specifically statute at issue never mentioned zoning, whereas section 11—15.1—1 specifically permits incorporate zoning-, subdivision-, and building-regulation provisions. argues provi- these sions are nonsensical building-control without jurisdiction. argn.es also Division 15.1 of Municipal Code is control- ling because it was enacted after long section 11—13—1 and therefore represents legislature’s pronouncement most recent on this issue.

Where appear conflict, two statutes specific be the more general. Mikusch, controls over the more 138 Ill. 2d at 562 N.E.2d general A applies 173. statute is one that generally cases while a specific particular only statute is subject. relates one Hernon v. Corrigan Co., E.W. Construction time,

563 At the same where two are equally ap statutes plicable facts, to a of particular Mikusch, set the more recent controls. 173; 138 Ill. 2d at Singer, N.E.2d see Sutherland on N. (6th 2000) (“Where § Statutory 51.02, at Construction 186-87 ed. two statutes are involved each of applies which its terms to the facts court, before the the statute which is the more recent of the ir two reconcilably conflicting prevails or statutes one of the statutes can be enunciated”). general deemed an exception rule Although Will, similar to the in provisions considered of we find the in this provisions considerably specific. case to be more Municipal zoning provisions Division 15.1 of the Code clear the makes agreements period of annexation are enforceable for the effective agreement years. City Urbana, up Langendorf to 20 v. 197 Ill. (2001). Further, N.E.2d 323-24 section 11— permits municipality 15.1—1 of the Code a to enter into an Municipal contiguous of land not to the nexation with owners (West 11—13—1 Section 65 ILCS municipality. 5/11—15.1—1 (55 Code 5—1063 of the Counties section Municipal Code and (West 2002)) zoning building- concern specifically ILCS 5/5—1063 specifi- Code Municipal of the 15.1 jurisdiction, while Division code question agreements. subject to annexation cally lands concerns building-code jurisdiction zoning and concerns in this case at issue of each specifics thus agreements; subject annexation over lands pronounce- legislative recent find the most implicated. are We statute 15.1, controlling. ment, Division Municipal of the 11—13—1 assuming section

Even to the issues specific more are of the Counties Code section 5—1063 appears control where case, will not specific a more statute this controlling. act Stone general to make the legislature intended Review, Ill. 2d Security Board Department Employment (1992). that is the By providing “[pjroperty *** ordinances, subject is to the subject agreement of an annexation annexing municipality respects in all control, jurisdiction of the annexing municipality’s property that lies within the the same 2.1(a) (West added) (65 corporate (emphasis limits” 5/11—15.1— general provi intent to make this 2002)), manifested its subject land is to an annexation controlling sion in cases where the agreement. 246-47, Trust,

Further, Jones Dietsch 3d at Judith property held in cases where 746 N.E.2d at we claims jurisdiction, annexing municipality’s subdivi conflicting statutory jurisdiction municipality’s overrides another zoning sion formerly unincorporated plan grant planning over its statutory grant of zon county’s can of a ning area. same be said unincorporated property municipality’s ing jurisdiction over outside Municipal find Division 15.1 of the Accordingly, limit. we corporate subject to building property construction of Code controls agreements. pari the rule of in ambiguous, a statute is not We also note when An Board Firemen’s materia Kozak v. Retirement applicable. Fund, 211, 219, 447 nuity & Benefit B. Special Legislation section 11—15.1— defense, contends As an affirmative special- it violates the 2.1 of the Code is unconstitutional as Illinois legislation Constitution provision article section (Ill. 13), § as follows: I\( provides art. which Const. special Assembly pass no or local law when

“The General shall general law is general applicable. is or can be made Whether law or applicable can be made judicial shall be a matter for determina- tion.”

Specifically, argues the County the following language violates the constitution: “(b) (i) This [s]ection shall apply county not a popula- with a (ii) 3,000,000, tion of more county than a county borders (iii) population 3,000,000[,] with a of more than a county or with a population 246,000 of more than according to the 1990 federal census bordered MississippiRiver, parties unless the have, agreement at agreement the time the is signed, ownership or control of all property that would make the

property that subject is the agreement contiguous to the an- nexing municipality, in property which case the subject that is the agreement of the annexation ordinances, is control, to the jurisdiction of the municipality in all respects the same as property owned that lies within its corporate (West2002). limits.” 65 ILCS 5/11—15.1—2.1 county A or government other local unit of standing has to assert a legislative classification is invalid under the Illinois Constitution if county ais member of the being class discriminated against. John Troy District, Fire Protection 933, 936, 255 Ill. App. 3d 627 N.E.2d (1994) (Third District). 1216, 1219 Because is treated dif ferently than the classified counties its and building-code affected, is we find the standing bring has this claim.

The special-legislation provision prohibits the legislature from conferring special rights, privileges, or immunity imposing specific burden on a specified portion population excluding while others similarly who are District, situated. In re Belmont Fire Protection (1986). 373, 379, special-legislation 489 N.E.2d prevents legislature creating clause arbitrary from classifications that discriminate in favor of a group selected without a reasonable Works, Taylor basis. Best v. Machine 179 Ill. 2d 689 N.E.2d (1997). not, however, prohibit legislative 1069-70 It does all clas Hills, sifications. In re Petition Vernon 168 Ill. 2d (1995). permitted is to clas sify counties municipalities population on the basis or territo differences, long rial so arbitrary the classification is not or does grant particular special legislative class or exclusive Bel favors. District, mont Fire Protection 111 Ill. 2d at 489 N.E.2d at 1388. A statute is not invalid in a simply operates because it limited area of the Langfelder, state. Nevitt v. 623 N.E.2d 281, 285 special-legislation challenge generally judged

A as an same equal-protection challenge, controlling question and the is whether state legitimate to a rationally related legislative classification at 367- Hills, 168 Ill. 2d Vernon interest. of a upon rational must be based test, “the classification Under this 68. or persons exist in the found to or condition difference of situation Protection Fire classification rests.” Belmont upon which the objects Additionally, the clas 380, at 1388. District, at 489 N.E.2d 111 Ill. 2d remedied to the evil to be relationship a rational sification must bear District, Fire legislation. Belmont Protection purpose and the of facts can be 380, any 1388. “If set 111 Ill. 2d at 489 N.E.2d at to which justifies distinguishing the class reasonably conceived that inapplicable, the statute the statute from class which applies and constitutionally classify persons Assembly may then the General control, may and regulation or legislative objects purpose for the objects.” Village Ver only persons law to those applicable enact Hills, 122, 168 Ill. 2d at 658 N.E.2d at 367. non “ clearly ‘Only unreason if it can be said that classification arbitrary classify the courts act to hold palpably

able and will ing requirement There is no [Citation.] enactment invalid.’ *** [citation] precision be mathematical classifications drawn with degree, only, may one be suf ‘[e]ven for if the difference be municipal ficiently great require a difference in methods 130, Nevitt, 2d at 287. [Citation.]” action.’ 157 Ill. constitutionally be Legislative presumed classifications are valid, any upholding reasonable doubt be resolved in favor of will Hills, 168 Ill. 2d at the classification. Vernon reviewing presume A also N.E.2d at 367. court will in the conscientiously prevailing acted and considered the conditions Dis enacting the Belmont Fire Protection legislation. counties before However, trict, 380, appropri at 1389. where 111 Ill. 2d at 489 N.E.2d Best, 179 Ill. ate we will declare statute unconstitutional invalid. 378, at2d 689 N.E.2d at 1064. party attacking validity of the statute must demonstrate Belmont

the unreasonableness or arbitrariness of classification. District, Fire Protection 111 Ill. 2d at 489 N.E.2d at 1388. County based on points us to a number of cases where a classification Fire population arbitrary. was See Belmont alone struck down (a District, based Protection 111 Ill. 2d 489 N.E.2d 1385 statute only Page on Du was held invalid population affected population and the because other counties faced similar situations evil); Vernon remedying classification did not aid Hills, (essentially as in 168 Ill. 2d 658 N.E.2d 365 the same issue affected); District, only Belmont Fire but was Protection Will (1966) 34 Ill. 2d 218 N.E.2d 103 County Winnebago, Christen (found unconstitutional an act applicable only to counties with a population 200,000 between and 1 million that eliminated the requirement referendum for general obligation bonds, the issuance of great where need for improvements courthouse throughout existed proof greater state no showed the need was in the six counties falling classification); Cook, within the Hunt v. 398 Ill. (1947) (invalidated Act, Domestic Relations intended to combat “the attending evils the breaking family relationships,” that posed a serious general welfare, threat health, moral, and safety of the applicable only state but was in Cook County); Lacny Board, v. Police 683 N.E.2d 1265 (1997) (First District) (classification based on population affecting only Chicago held invalid because the court could find no rational dif ference between the situation existing or condition complaints between Chicago filed in complaints filed Chicago); compare Nevitt, outside 623 N.E.2d 281 (upheld provision of the Public Employee Disability distinguished Act that between home rule municipalities million); in excess of less County and than Cham of (1978) Adams, paign (upheld 375 N.E.2d 184 Cristen). population 80,000 classification distinguished set at and legislative history concerning scant this suggests amendment the stop law was enacted to municipalities from leapfrogging over unincorporated entering lands and preannexation into annexation and agreements. Assem., Proceedings, 87th Gen. House June (statements Hoffman). Senate, at 16 of Representative In the Senator John Cullerton noted problem this had been a in the classified coun ties and explained purpose the of the amendment as follows: posed problem up area,

“This has in the so suburban and what done change respect we’ve witl: this bill is to not the law with State, counties, most the of but for certain and those counties are Lake, Cook, Will, Kane, Clair[,] McHenry, Page, Du and St. say only parties Madison. if provision apply We that that shall the have, agreement agreement to this annexation at the time the of signed, ownership property or control of all that make the would subject agreement, contiguous property that is the —the Assem., annexing municipalities.” to the 87th Ill. Gen. Senate (statements Proceedings, of Senator June at 47-48 Culler ton). County argues problem leapfrogging jurisdiction the exists state, only throughout

not in the but the classified counties planning the the by Knight, evidenced affidavit of Bruce director for City County’s professional expert. and land-use Champaign the Knight opined by that lands covered because “[t]his boundary, corporate contiguous municipality’s to a not be need limits corporate away from for islands land potential creates the of the lands the distance limitation as to without municipality, irregular and Further, patchwork “[t]he municipality.” from the conditions in these be created under may inconsistent [prin- [l]and[-][u]se [professional violate[s] unincorporated areas in a urban areas expanding encourage growth which ciples, existing limits.” corporate manner contiguous uniform and added.) problems, potential to a number of Knight pointed (Emphasis with zoning not consistent including sprawl, inappropriate urban zoning, proper for county’s plan, little incentive comprehensive services, bound- quality municipal compromised and increased cost application uniform of land- confusion, inconsistency in the ary and use controls. arise in problems could County potential agree

We not this legislature, an issue for any county Illinois, but this is in the clas- problems actual existed court. Cullerton indicated Senator to show clas- counties, this distinction alone is sufficient sified supported by a rational basis. arbitrary sification was was the evils Further, inapposite are because the cases cited parts of actually existed in other sought to be remedied the laws here has failed to demonstrate such is case the State. The the classification was showing to meet its burden of failed arbitrary and unreasonable.

C. Police Powers defense, 15.1 County argues Division In its second affirmative by the police powers is an use of invalid relationship public it does not bear a reasonable because morals, Specifically, or convenience. health, safety, general welfare principles the sound land-use contends the division defeats jurisdiction and unity contiguity corporate in the extension of to government interest municipalities with no valid permits concerned with away legitimately the interest of those bargain public zoning. the land’s has broad discretion to legislature the police powers,

Under its morals, health, safety, public to the legislation protect enact City State. Carbondale or convenience of the general welfare (1979). 829, A valid 114-15, 831 Brewster, 111, 398 N.E.2d 78 Ill. 2d a reasonable legislation to bear police requires the power exercise of means and the sought protected, to be relationship to the interest an accomplish such a reasonable method adopted must constitute 115, Brewster, 398 at 831. objective. 78 Ill. 2d at N.E.2d Although question of reasonableness by will be determined court, legislature “the has broad discretion to determine only what interests of public require welfare but what measures are necessary Brewster, secure such interest.” 78 Ill. 2d at N.E.2d at 831. Where the has considered a problem and legislation, presume enacted we the law evidences a valid exercise of Brewster, power. 78 Ill. 2d at 398 N.E.2d at 831. We will not disturb an merely enactment over difference of opinion concerning wisdom, necessity, its Brewster, and expediency. 78 Ill. 2d at N.E.2d at The party 831. challenging validity of the law has the burden to show the law is entirely arbitrary and without reasonable Brewster, basis. 78 Ill. 2d at 398 N.E.2d at 831. recognized

This court has the requirement that land be contigu ous before it can be annexed promotes gradual and natural exten sion of municipal limits. In re Annexation Certain Territory Chatham, Illinois, 786, 790-91, “ (1993). 1278, 1282 explained, This court ‘delivery of services more city convenient for the and more efficient for lines, its citizens. Sewer fire, policet,] services, and other as far practicable, should not ” pass have to under or over lands not within municipal boundaries.’ Territory, Certain 245 App. 3d at quot 614 N.E.2d at ing People ex rel. City Belleville, St. Clair v. However, this court recognized also ‘‘[p]reannexation agreements serve to important governmental further purposes, encouragement such as the of expanding urban areas uniformly, economically, efficiently, fairly, optimum provi sions made for the land[-]use establishment of controls necessary municipal improvements” rejected argument a similar by City Springfield. Trust, Judith Jones Dietsch 321 Ill. App. 3d at N.E.2d at 1276. The County’s concerns are neither borne out evidence in the sufficiently record nor supported by the affidavit of its expert. land-use The County prove had the burden the law was entirely arbitrary basis, and without reasonable but it failed to do so. findWe Division 15.1 of the Municipal Code to be a valid use of the legislature’s police powers.

D. Genuine Issue of Material Fact argues also summary judgment appropri was not because, ate Village alleged in its into complaint, had entered alleged building- it claimed as the basis for its jurisdiction, date, code and zoning provide but it failed to proof, lands agreements. Village argues affected the annexation legal dispute between and the not concern does jurisdiction concern has but does who agreements annexation specific agreement. subject any any lands to over deposi pleadings, the when Summary appropriate judgment to genuine issues as affidavits, no admissions, any, if show tions, and aas judgment is entitled moving party the any fact and material 1005(c) (West 2002); Netsch, 166 Ill. 2d matter of law. 735 5/2 — strict case, although demanding 1110. In this 651 N.E.2d at the Vil dispute a with admitted the agreements, proof in its answer jurisdiction both building-code lage zoning and over Additionally, the in counterclaim. Village’s complaint and its the map showing a the location the trial court provided issue; this dispute as to this find no disputed of these lands. We some presented in legal issue material to the ultimate factual issue is not Village’s complaint. Judgment Declaratory E. prove up failed to Village County argues because allegedly and the lands the annexation

information about ruling was trial court’s agreements, the annexation covered parties. dispute between and will terminate abstract controversy did terminate the declaratory judgment a Village contends jurisdiction in areas case, has namely, which them at issue this Village and the agreements. We note both the subject to annexation zoning and judgment as to which has County sought declaratory subject agree to an annexation building-code over land ment. a validity of concerning the declaratory judgment a action

In (1) pleads if it rights statute, party is entitled to declaration clearly falling operative within the showing protectible facts interest (2) its adversely be affected it will language the statute O’Connor, App. 138 Ill. 3d Trucking, Boles Inc. v. enforcement. (1985). declaratory is the judgment Where 486 N.E.2d summary may be on a motion for only decided requested, relief 701(b) (West 2002); Bossman judgment. 735 ILCS 5/2 — (1997). Courts, 427, 434 Riverton, however, declaratory judgments appears if it refuse to enter should controversy nart thereof. or some judgment not terminate the would Ryan, Ill. 2d Illinois Press Ass’n v. and should in this case declaratory judgment proper was

We find controversy between terminate property jurisdiction over

concerning building-code preannexation agreements.

III. CONCLUSION The legislature’s statutory current provisions compelled the results recognize, this case. We however, this decision properly does not take County’s into account the Village’s competing goals. land-use county, This as well as other state, counties throughout has developed zoning building-code plans meant preserve the rural character of county protect rich farmland from development. legislature’s policy in permitting agreements annexation giv- ing municipalities zoning and building-code jurisdiction is meant to promote urbanization. Reconciling these competing considerations is properly legislature most left to the and not this court.

Thus, we the legislature carefully invite to review the statutes at carefully issue in this case and consider the implications granting municipalities zoning and building-code subject over lands contiguous but not municipality. We urge legislature standards, consider whether additional such as those required for annexation, school-district need to be met before a permitted is jurisdiction. to exercise this See Dukett v. Regional Trustees, Board 635, School (2003) (“[Pjetitions 342 Ill. App. 3d 795 N.E.2d 950-51 for detachment and annexation should granted only be where the overall benefit to the annexing district and the clearly detachment area outweighs resulting detri ment to the losing district and surrounding community aas whole”). Further, County’s we invite the to consider the argument municipality’s zoning building-code jurisdiction that a agreement should not attach until the land to the annexation actually annexed. stated, For the reasons we affirm the trial judgment. court’s Affirmed.

TURNER, J., concurs. MYERSCOUGH, JUSTICE dissenting: I respectfully determining In dissent. that section 11—15.1—2 of (65 (West 2002)) the Municipal Code ILCS “prevails,” 5/11—15.1—2 majority has statutes, rendered two Illinois section 11—13—1 of (65 (West 2002)) the Municipal Code and section 5/11—13—1 (55 (West 2002)), 5—1063 of the Counties ILCS 5/5 —1063 I invalid. am troubled such an approach “isolated” majority’s County’s of the suggestion dismissal that the three seem- (the ingly conflicting pari can be statutes constructed materia majority ambiguous, states: “We also note when a statute is not

905 Board Retirement Kozak v. applicable. is not of in materia pari rule Fund, Annuity & the Firemen’s Benefit (351 (1983)” agree I 3d at 394, mean that interpreted should be at issue the statutes that property effective when only becomes municipality’s power are construed involved annexed, that all the statutes actually so given effect. harmoniously and are long-established, fundamental materia is pari of in The doctrine construction, doctrine of “Under this principle.

statutory construction subject are considered with the same acts that address legislative two ef harmonious they may given be another, one so reference to Ill. 2d Chicago, 202 City Education Land v. Board fect.” 414, 422, Supreme States The United L. 237 U.S. Ewing, rel. Chott v. Court, in States ex United (1915), provisions, faced with two was 913, 915, 35 S. Ct. Ed. “[ljooked conflict between” isolatedly,” had “absolute which, at when stated as follows: approach and rejected Court the isolated them. The “[Ejven not otherwise consideration were if the method of isolated it af adopted since one, it follows that it cannot be a mistaken plainly controversy.” Ewing, 237 U.S. at possible fords no solution solu “[S]uch Court then held: S. Ct. at 572. The 59 L. Ed. rules, elementary sought by following the tion must therefore be secondarily is, of the section and by turning to the context primarily means for affording in materia as an efficient provisions pari to enacting thereby vivify discovering legislative intent in the statute ac adopted which it was ing enforcing purposes the remedial 915, 200, 35 S. Ct. at 572. U.S. at 59 L. Ed. at complish.” Ewing, 237 here. holding Ewing fully applies The Court’s in case, appear have three Illinois statutes that In the instant we would, essence, repeal in the oth conflict, and to hold one be in valid 11—15.1—2 validity of section majority uphold ers. The chose 11—13—1 of the rejecting of the Code section Municipal while (65 (West 2002)) and Code ILCS section Municipal 5/11 —13—1 (West 2002)). (55 The 5—1063 ILCS Counties Code 5/5—1063 394, Kozak, ignore majority relied on 95 Ill. 2d 447 N.E.2d States pari of in set forth above the United doctrine materia Illinois, stating “[w]e also Supreme Court Court of Supreme pari of in materia ambiguous, note when a statute is not the rule reliance is App. 351 Ill. 3d at 897. Such applicable. [Citation.]” here, misplaced as the statute section 11—15.1—2 (65 (West 2002)), unambigu is not clear and ILCS 5/11—15.1—2 ous. Jameson, People in Supreme Court of stated Illinois 282,

2d (1994), 642 N.E.2d a statute is ambiguous if it capable “is of being by reasonably understood persons well-informed in or two more know, different senses.” ambiguity As we is of a dual nature: may patent it be either or latent. A patent ambiguity arises themselves, out of the words while a latent ambiguity arises out of the results of a application literal of the words. In Stewart v. Industrial Comm’n, 115 Ill. 2d (1987), 504 N.E.2d for example, Supreme Court of Illinois may held statute contain a latent “ ambiguity. A latent ambiguity arises ‘where the language employed is clear intelligible suggests a single meaning, but but some extrinsic fact or extraneous evidence a necessity interpreta creates for (Black’s tion or a among choice possible two more meanings.’ Law (3d 1933).)” Dictionary 102 ed. Hoglund v. State Farm Mutual Co., Automobile Insurance 148 Ill. 2d (65 case,

In the instant section 11—15.1—2 of the Municipal Code (West 2002)) may interpreted be two ways: vil- 5/11—15.1—2 lage zoning jurisdiction has the any over property with which the vil- (as did) lage enters annexation majority or a municipality’s zoning power only becomes effective the property when actually annexed. The fact that there are possible interpreta- two tions the statute latently ambiguous, renders it ap- and we should ply principle pari of in interpreta- materia to determine the correct tion.

Last, majority I note the legislature’s “[t]he stated that current (351 statutory provisions compelled the App. results in this case” Ill. 904) “[Reconciling 3d at competing these considerations is most (351 properly legislature left to the and not this court” majority, however, placed itself in the role of the legislature prevailed when declared that one statute over the other two “conflicting” majority’s statutes. The holding also violates the statu tory principles construction Supreme stated Court of Illinois (1990): Mikusch, State v. statutes, presumed legislature, enacting “It is various acts rationally knowledge previous [Cita and with full of all enactments. tion.] It is further that the not enact a presumed will law completely prior express which contradicts a statute without an repeal of it and that statutes which relate to the are to be same governed by one spirit single policy” and a and “it is not unusual for passed two or more bills at the same the legislature to be session of pertain subject. operate which to the same For the later enactment to one, therefore, there must be repeal by implication as a of the earlier repugnance that the two cannot stand such manifest and total which allows statutes the two construction, possible, if A together. reasons, I reverse would these For favored.” stand will be both to trial court. Mammenga, CASE, Courtney L. COURTNEY

In MARRIAGE OF re n/k/a Case, Respondent-Appellant. R. Petitioner-Appellee, and Michael 4 — 03 — 0916 District No. Fourth August 2004. Opinion filed

Case Details

Case Name: Village of Chatham v. County of Sangamon

Court Name: Appellate Court of Illinois

Date Published: Aug 11, 2004

Citation: 814 N.E.2d 216

Docket Number: 4-03-0878

Court Abbreviation: Ill. App. Ct.