Austin Bank v. Village of Barrington Hills

919 N.E.2d 88, 396 Ill. App. 3d 1
CourtAppellate Court of Illinois
DecidedNovember 9, 2009
Docket1-08-2315 Rel
StatusPublished
Cited by3 cases

This text of 919 N.E.2d 88 (Austin Bank v. Village of Barrington Hills) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Austin Bank v. Village of Barrington Hills, 919 N.E.2d 88, 396 Ill. App. 3d 1 (Ill. Ct. App. 2009).

Opinion

JUSTICE GARCIA

delivered the opinion of the court:

The Village of Barrington Hills (the Village) appeals from an order granting the petition of Austin Bank of Chicago to disconnect a 145-acre parcel of land (the subject property) from the Village’s jurisdiction pursuant to section 7 — 3—6 of the Illinois Municipal Code (the Code) (65 ILCS 5/7 — 3—6 (West 2006)). The Village contends the disconnection of the subject property leaves two adjacent “barrier parcels” 1 at the southeastern corner of the Village isolated from the remainder of the Village in violation of section 7 — 3—6. Because the record supports the circuit court’s ruling that the Village retained jurisdiction over the barrier parcels as a legal gimmick to prevent disconnection of the subject property, we affirm Judge Peter Flynn’s order granting Austin Bank’s disconnection petition.

BACKGROUND

Prior to 1997, the southeast boundary of the Village’s jurisdiction was a 45-acre parcel of land directly east of Route 59 (1997 boundary parcel). The 1997 boundary parcel was part of a larger 600-acre tree nursery owned and operated by the Klehm family (Klehm property), which extended farther north and east. At the time, the remainder of the Klehm property was in unincorporated Cook County. Immediately west of the 1997 boundary parcel and Route 59 is the subject property.

In 1997, Mesirow-Stein, a real estate development firm, purchased the entire Klehm property, including the 1997 boundary parcel. Mesirow-Stein sought to develop all of the Klehm property for high-density residential housing, a type of housing not permitted under the Village’s zoning laws. To avoid the Village’s restrictive zoning laws, Mesirow-Stein sought and obtained a disconnection of the 1997 boundary parcel from the Village’s jurisdiction.

Had the entire 1997 boundary parcel been disconnected from the Village, the subject property would have become the easternmost point remaining under the Village’s jurisdiction. However, two parcels within the 1997 boundary parcel were not disconnected. Under a Village ordinance granting the disconnection of the 1997 boundary parcel, two “barrier parcels,” each 301 feet in width and less than 2 acres in area, directly east of Route 59 and the subject property, remained within the Village’s jurisdiction. These two parcels became the easternmost points of the Village’s border.

The central issue in the litigation below was the significance of the barrier parcels remaining within the Village’s jurisdiction vis-a-vis the petition for disconnection filed by Austin Bank. The Village took the position that because the barrier parcels are the easternmost point still within its jurisdiction, adjacent to the subject property across from Route 59, the disconnection of the subject property would leave those barrier parcels isolated from the remainder of the Village in violation of section 7 — 3—6 of the Code. Austin Bank asserted that the Village only retained the barrier parcels as a subterfuge to block disconnection of the subject property and, under existing case law, the circuit court, in giving a liberal reading to section 7 — 3—6, which favors disconnection, could find that disconnection is not defeated based on the isolation of the artificially created barrier parcels. We set out at length the evidence adduced at trial concerning the Village’s decision to retain the barrier parcels.

Retention of the Barrier Parcels

On February 9, 1998, Mesirow-Stein representatives and Village officials met to discuss the possible disconnection of the 1997 boundary parcel. The next day, Michael Szkaltukski, a developer with Mesirow-Stein, wrote a memo describing “issues brought to the table by [the Village]” at the meeting. The memo discussed the possibility of disconnecting most of the 1997 boundary parcel from the Village, while leaving a small area within the Village’s jurisdiction. The memo noted, “The dimensions of the remaining parcel must be sufficient in size to prohibit the disconnection of [the subject property].” According to the memo, Village officials “suggested a minimum of 300 feet” in width. Village officials added “that the area which remains in [the Village] will be reviewed based on their requirement for storm detention and run off.” Szkaltukski wrote that leaving an area under the jurisdiction of the Village would prevent disconnection of the subject property under section 7 — 3—6 of the Code because disconnection would make the barrier parcels “an island.” Szkaltukski testified that there was no engineering reason to leave some of the 1997 boundary parcel in the Village’s jurisdiction.

Anthony Iatarola, a beneficiary of the Austin Bank trust that holds title to the subject property, testified that in the summer of 1998 he attended a public meeting conducted by Mesirow-Stein to outline its development plans of the Klehm property, including the 1997 boundary parcel. At the meeting, Iatarola asked Mesirow-Stein’s attorney, Ted Novak, whether the 1997 boundary parcel would be disconnected in its entirety. Novak said that remnants of the parcel would remain under the Village’s jurisdiction to act as “legal spite strips,” a term commonly used to describe artificial strips of land created to frustrate a neighboring landowner’s land use right. See, e.g., J.C. Penney Co. v. Andrews, 68 Ill. App. 3d 901, 904-05, 386 N.E.2d 923 (1979) (county code “prohibits ‘spite’ strips in ‘new subdivisions’ ”).

Village officials expressed similar reasons for carving out the barrier parcels from the disconnection of the 1997 boundary parcel. Bruce Trego, an administrator from neighboring South Barrington, testified that Robert Kosin, the director of administration in the Village, told Trego in the summer of 1998 that the Village planned to maintain jurisdiction over the barrier parcels to prevent future disconnection of the subject property. James Kempe, the president of the Village when the barrier parcels were retained, testified that he decided to “go along” with the barrier parcel proposal because he would “rather lose 43 acres [of the 1997 boundary parcel] than lose the 145 [of the subject property] across the street.”

In 2000, Mesirow-Stein formally presented a petition to the Village’s zoning board of appeals to disconnect 42 acres of the 1997 boundary parcel, leaving only the barrier parcels under the Village’s jurisdiction.

Jack Train, the chairman of the Village’s zoning board of appeals, conducted a public hearing on the petition on June 19, 2000. In the circuit court below, Train testified that prior to the hearing, Kosin informed him that the disconnection petition had been approved by the Village’s attorneys to give the Village a legal ground to oppose any future effort to disconnect the subject property. The zoning board hearing focused primarily on the storm water management benefits the Village would retain by maintaining jurisdiction over the barrier parcels; protection of the Village’s borders was not expressly raised at the hearing.

Mesirow-Stein did not file a disconnection petition in the circuit court.

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Cite This Page — Counsel Stack

Bluebook (online)
919 N.E.2d 88, 396 Ill. App. 3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-bank-v-village-of-barrington-hills-illappct-2009.