The Illinois Municipal Code in §5/7-1-2 provides a method by which a majority of the owners of record and electors in a defined territory can petition the circuit court to certify the question of annexation of the area to a municipality for approval. 65 ILCS 5/7-1-2. This so-called court controlled proceeding has been a valuable tool in boundary disputes because it permits a majority of owners and electors to ask the court to certify the annexation of other properties, provided all of the statutory elements are satisfied. This article addresses a split in Illinois Appellate Courts concerning the specificity required in pleading a §5/7-1-2 petition. The failure to properly plead a §5/7-1-2 petition could have the devastating impact of the loss of priority jurisdiction where competing annexation proceedings are involved. As a result, practitioners are strongly encouraged to plead specific facts under §5/7-1-2, regardless of the appellate district in which the property lies.
65 ILCS 5/7-1-2
- 5/7-1-2 of the Illinois Municipal Code provides in part:
(a) A written petition signed by a majority of the owners of record of land in the territory and also by a majority of the electors, if any, residing in the territory shall be filed with the circuit court clerk of the county in which the territory is located, or the corporate authorities of a municipality may initiate the proceedings by enacting an ordinance expressing their desire to annex the described territory…
The Second District’s decision in Petition to Annex Certain Property to the City of Wood Dale, 244 Ill.App.3d 820, 611 N.E.2d 606 (2d Dist. 1993), addressed the pleading requirements for a §5/7-1-2 petition filed by owners and electors. On October 7, 1991, the petitioners filed in the circuit court a petition to annex a tract of land to the City of Wood Dale. The petition alleged that the land was contiguous, was not in the corporate limits of a municipality, and that the petitioners were a majority of the record owners and electors residing in the territory. Next to the signatures appended to the petition were various handwritten designations of the respective signator as “owner” or “owner-voter”. No addresses of the signatories were placed on the petition itself.
Montalbano Builders (“Montalbano”) and the Village of Addison (“Addison”) filed motions to dismiss the petition alleging that it was jurisdictionally defective and lacked priority on account of Montalbano’s previously filed voluntary annexation petition for property also included in the Wood Dale petition. Wood Dale, 611 N.E.2d 606, 609. Addison later moved to strike and dismiss the Wood Dale petition on the grounds that it was facially deficient and conclusory because it did not show on its face (1) that the petitioners were record owners or registered voters within the territory; (2) addresses or specific lots or parcels; (3) facts showing that the signatories were registered to vote; and (4) facts showing the total number of record owners and electors that would constitute a majority under §5/7-1-2. The circuit court ruled in favor of the objectors, finding that the voluntary petition to Addison enjoyed priority over the petition to Wood Dale and that the petition was facially invalid and conclusory.
The Second District first addressed the rule of “jurisdictional priority” in determining whether Montalbano’s voluntary petition to Addison enjoyed priority over the later filed petition to Wood Dale. The general “priority” rule governing conflicting petitions to annex the same tract of land is that the first to initiate an annexation is entitled to priority over the territory against all other parties initiating such a proceeding at a later date. Priority in time, typically determined by the time of the “initiation” of the annexation proceeding, is conclusive. However, the later-filed annexation petition, even though initiated during the pendency of another petition, may become legally “initiated” for jurisdictional priority purposes if the prior petition is abandoned, defeated, or otherwise deemed invalid.
The Wood Dale Court affirmed the circuit court’s determination that Montalbano’s petition to Addison enjoyed jurisdictional priority over the petition to Wood Dale and in doing so rejected multiple arguments raised by the petitioners. As an additional ground in affirming the trial court, the Wood Dale Court held that the petition to Wood Dale was “deficient as to its jurisdictional facts and was therefore facially invalid”.
The Wood Dale Court recognized the following as “jurisdictional facts” under §5/7-1-2:
(1) the signatures of a majority of the owners of record of land in the territory; (2) the signatures of a majority of the electors, that is, registered voters residing in the territory; (3) the contiguity of the territory with the municipality to which annexation is requested; (4) the territory is not within the corporate limits of another municipality; and (5) an adequate legal description of the territory.
The Wood Dale Court agreed with the objectors that the petition was deficient in showing that the signatories were, in fact, the owners of record of specific property in the territory. This failure to allege specific facts violated the fundamental rule that Illinois is a fact-pleading state and a pleading must contain specific facts to bring the claim within a legally recognized cause of action, otherwise the pleading must be dismissed. Applying this standard, the Court noted that the petition contained no specific facts regarding the addresses or residences of the signatories and whether they are in fact registered voters residing within the territory. The petition also did not state what number of signatures is required to form a majority and what number qualified in either category. Finally, the Court found that the conclusory affidavit submitted pursuant to §7-1-4 could not cure the deficiencies in the petition. See 65 ILCS 5/7-1-4. The Wood Dale Court went on to state that an amended petition would not have “related back” to the time of the filing of the original petition.
Just several months after the Wood Dale decision, the Second District ruled on the sufficiency of a disconnection petition in LaSalle National Trust v. Village of Mettawa, 249 Ill.App.3d 550, 616 N.E.2d 1297 (2d Dist. 1993). As will be discussed herein, the Mettawa decision resulted in a conclusion contrary to Wood Dale, and rationale that the Third District Appellate Court in the more recent Village of Plainfield case found to be more compelling.
VILLAGE OF PLAINFIELD
In Village of Plainfield, the Third District addressed the identical issue of the specificity required for a petition filed under §5/7-1-2. Petition for Annexation of Certain Property to the Village of Plainfield, 267 Ill.App.3d 313, 642 N.E.2d 502 (3d Dist. 1994). The petitioners filed a petition to annex territory to the Village of Plainfield alleging that they contributed more than 51% of the owners of record of the territory sought to be annexed; that there were no electors in the territory; that the territory was not situated in a municipality; and the territory was contiguous. The Village of Bolingbrook and several landowners asserted an interest in the territory subject to the annexation and objected to the petition, alleging in part that the petition was insufficient on its face.
On appeal, the Third District affirmed the trial court’s finding that the petition was valid. The Court first addressed the sufficiency of the petition and specifically the objector’s argument based on Wood Dale that the petition failed to identify the property that the plaintiffs claimed to own in the territory and the petition did not state the number of signatures necessary to form a majority of owners of record. The Plainfield Court chose to instead rely upon the Second District’s decision in Mettawa, 616 N.E.2d 1297.
In Mettawa, the Second District considered the sufficiency of a disconnection petition that recited the six statutory requirements for disconnection, without any specific facts in support thereof. In upholding the sufficiency of the petition, the Court provided several reasons why the pleading did not warrant reversal. First, the pleading cited all of the requirements from the statute. Second, while no specific facts were plead, it also did not clearly appear that no set of facts could be proved which would entitle petitioners to a judgment in their favor. Third, while the Mettawa Court noted that more than mere notice pleading was required in Illinois, by tracking the statute the petition alleged every “ultimate fact” to be proved for petitioners to prevail.
The Third District in Plainfield found the Mettawa rationale to be more persuasive than Wood Dale. Applying this rationale, and relying upon its conclusion that the Wood Dale discussion regarding the sufficiency of the petition was dicta, the Plainfield Court affirmed the trial court’s denial of the motion to dismiss. The Plainfield Court reasoned that while the §5/7-1-2 petition failed to allege specific facts it did not appear on its face that no set of facts could be proved which would entitle the petitioners to a judgment in their favor. Also, by tracking the statute, the petition alleged every ultimate fact to be proved in order for the petitioners to be entitled to judgment. Finally, the petition informed the respondents of what they must defend against.
The Plainfield Court did note that in that case, as in Mettawa, the circuit courts had denied the motion to dismiss while in Wood Dale the Court affirmed the dismissal of the petition, and “the disposition of a motion to strike and dismiss for insufficiency of the pleadings is largely within the sound discretion of the Circuit Court”.
Fact-Specific Versus Ultimate Facts
In pleading a §7-1-2 petition, a practitioner is faced with the decision of whether to comply with Wood Dale’s fact specific requirements or to simply track the statute as approved by the Mettawa and Plainfield Courts. A review of cases citing to Wood Dale, Mettawa and Plainfield reveals that all three decisions remain viable. While the Plainfield Court’s analysis that the Wood Dale Court’s decision concerning the sufficiency of the pleading is dicta has merit, the legal basis for the Wood Dale conclusion – that Illinois is a fact pleading state – is well settled. The pleader’s decision to allege specific facts versus ultimate facts, will most likely involve high stakes when the priority jurisdiction of competing petitions is involved. The importance of the viability of the petition is especially true in light of the Wood Dale Court’s assertion that an amendment to a petition would not relate back to the original filing.
In light of the foregoing, it is the view of this author that it is best to satisfy the Wood Dale fact specific requirements when pleading under §5/7-1-2. The specific facts in support of the statutory requirements should already be developed when the petition is filed, including: (1) the addresses of the petitioners; (2) a description of the property owned by the petitioners; (3) facts showing all electors in the territory or the registered voters list(s) for the territory; and (4) the number of petitioners needed to make up a majority of owners and electors. By pleading all of these matters with specificity and accuracy, the petition should withstand attack under the Wood Dale analysis and most importantly retain its jurisdictional priority.
Christian G. Spesia
Spesia, Ayers & Ardaugh
June 1, 2006