Nos. 2--08--0349, 2--08--0350, 2--08--0356, 2--08--0357, 2--08--0358 cons. Filed: 10-15-08 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________ In re PETITION TO DISCONNECT ) Appeal from the Circuit Court CERTAIN TERRITORY FROM THE ) of Kane County. VILLAGE OF CAMPTON HILLS, KANE ) COUNTY, ILLINOIS ) No. 07--MC--12 ) (Scott Horton, Michele Horton, Stephanie ) Fahey, Paul Fahey, Donald Krause, Bonnie ) Krause, Dorothy A. White, Robert E. White, ) Harold Broten, Karen Broten, Wayne Lange, ) Robert A. Klock, Denise M. Klock, Jean ) Francissen, Kathleen M. Champion, Patrick ) Francissen, and Vernon W. Francissen, ) Honorable Petitioners-Appellees, v. The Village of ) Michael J. Colwell, Campton Hills, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________
In re PETITION TO DISCONNECT ) Appeal from the Circuit Court CERTAIN TERRITORY LOCATED IN ) of Kane County. KANE COUNTY, ILLINOIS FROM THE ) VILLAGE OF CAMPTON HILLS ) No. 07--MC--4 ) (Walter Kold, et al., Petitioners-Appellees, v. ) Honorable The Village of Campton Hills, ) Michael J. Colwell, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________
In re PETITION TO DISCONNECT ) Appeal from the Circuit Court CERTAIN TERRITORY COMMONLY ) of Kane County. KNOWN AS THE CHEVAL DE SELLE ) SUBDIVISION AND ADJOINING ) No. 07--MR--474 PROPERTIES FROM THE VILLAGE ) OF CAMPTON HILLS ) ) (M.R. Sanborn, et al., Petitioners-Appellees, v. ) Honorable The Village of Campton Hills, Respondent- ) Michael J. Colwell, Nos. 2--08--0349, 2--08--0350, 2--08--0356, 2--08--0357, 2--08--0358 cons.
Appellant). ) Judge, Presiding. ______________________________________________________________________________
In re PETITION TO DISCONNECT ) Appeal from the Circuit Court CERTAIN TERRITORY LOCATED IN ) of Kane County. KANE COUNTY, ILLINOIS FROM THE ) VILLAGE OF CAMPTON HILLS ) No. 07--MC--5 ) (Gene Miceika, et al., Petitioners-Appellees, v. ) Honorable The Village of Campton Hills, ) Michael J. Colwell, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________
In re PETITION TO DISCONNECT ) Appeal from the Circuit Court CERTAIN TERRITORY LOCATED IN ) of Kane County. KANE COUNTY, ILLINOIS FROM THE ) VILLAGE OF CAMPTON HILLS ) No. 07--MC--11 ) (Dawn Chantos, et al., Petitioners-Appellees, v. ) Honorable The Village of Campton Hills, ) Michael J. Colwell, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________
JUSTICE BURKE delivered the opinion of the court:
The Village of Campton Hills (the Village) was incorporated in 2007. Pursuant to section
7--3--1 of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/7--3--1 (West 2006)), property
owners who meet certain criteria may disconnect from a newly formed municipality within one year
of incorporation. This consolidated appeal involves five groups of property owners (petitioners) who
filed petitions to disconnect from the Village, pursuant to section 7--3--1: (1) case No. 07--MR--12
(Campton Farms); (2) case No. 07-- MC--4 (Prairie Lakes); (3) case No. 07--MR--474 (Cheval de
Selle); (4) case No. 07--MC--5 (Hidden Oaks); and (5) case No. 07--MC--11 (Moraines). Except
in the Prairie Lakes and Hidden Oaks cases, which were tried together, the circuit court of Kane
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County conducted separate evidentiary hearings to determine whether petitioners met the statutory
criteria for disconnection. On March 20, 2008, the court entered judgments in favor of petitioners
and ordered all five territories to be disconnected from the Village.
The Village appeals, raising several arguments. In general, it contends that the judgments
must be reversed because: (1) section 7--3--1 is not applicable to petitioners' disconnection claims;
(2) section 7--3--1 requires that each individual parcel in a disconnecting territory "touch" the
municipality's border; (3) petitioners failed to provide adequate notice; (4) disconnection abridged
the due process rights of unnamed property owners; (5) the trial court abused its discretion by
admitting or refusing to admit certain evidence; (6) the trial court erred in qualifying petitioners'
expert witnesses and allowing them to present their opinions, because they lacked adequate
foundations; (7) the judgments were against the manifest weight of the evidence; and (8) the trial
court failed to account for the cumulative impact of additional pending disconnection suits. For the
following reasons, we affirm.
BACKGROUND
The record is voluminous and the evidence is well known to the parties. Accordingly, we
will refer only to evidence that is relevant to our analysis.
By way of background, we note the following. The Village filed its first petition to
incorporate as the Village of Campton Hills in August 2005. Under Illinois law, the Village could
not be incorporated unless the Kane County Board (Board) found that the proposed incorporation
was compatible with the official plan for the development of the county and that the Village would
have a tax base sufficient to provide all the necessary municipal services to its inhabitants. The
incorporators, a committee that included chairperson Patsy Smith, who is now Village president, and
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that was represented by William Braithwaite and the law firm of Arnstein & Lehr, presented their
first petition to the Kane County Regional Planning Commission (Planning Commission) and the
Board. During those proceedings, the incorporators argued that the proposed Village had a sufficient
tax base and that the sufficiency of that tax base should be measured by the Village's equalized
assessed value (EAV). Braithwaite informed the Board that, "[a]lthough we enclose as part of this
Petition additional information as to the adequacy of budgeting for the new Village without any tax
levy, that is not the test. Rather, the test is whether there is a sufficient tax base which, if it becomes
necessary to levy a tax, we can provide municipal services at a realistic tax rate." Braithwaite added
that the Village could generate significant funds with "a modest levy of $.10 per $100 of equalized
assessed valuation."
The Kane County Development Department (Department) agreed with that approach. Philip
Bus, the Department's executive director, concluded that the proposed Village had a total EAV of
$604,179,886 and an EAV per capita of approximately $40,000, which was "among the highest in
Kane County." On the basis of those figures, he found that the Village's tax base was sufficient. The
Department, however, found that the proposed incorporation was incompatible with Kane County's
long-range plans, in part because the Village would include significant amounts of agricultural land
that were within Lily Lake's planning jurisdiction. Accordingly, the Board declined to make the
requisite findings.
The incorporators filed a second petition for incorporation on November 6, 2006,
contemplating a smaller land area, which did not include the agricultural land surrounding Lily Lake.
The incorporators argued again that the Village's tax base was sufficient because of the high EAV
and EAV per capita. On November 6, 2006, Smith informed the Board that the new proposed
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Village would have "an estimated Equalized Assessed Value of approximately $50,000 per capita."
The Department agreed with that approach and found that the new proposed Village had a sufficient
tax base and that incorporation was compatible with Kane County's long-range plans. Accordingly,
the trial court authorized a referendum on the question of whether to incorporate the Village. On
April 17, 2007, the voters approved the ballot initiative and on May 14, 2007, the trial court
authorized the incorporation.
The newly incorporated Village is very large. It encompasses 20.3 square miles and includes
102 miles of road. Based on figures from the 2000 census, the Village has certified 10,504 residents.
However, the Village estimates that its population has increased by approximately 2,500 persons
since 2000, and the Village has commissioned a special census to determine the actual population.
In May 2007, petitioners began filing petitions to disconnect from the Village pursuant to
section 7--3--1, which provides:
"Within one year of the organization of any municipality *** any territory which has
been included therein may be disconnected from such municipality if the territory sought to
be disconnected is (1) upon the border, but within the boundary of the municipality, (2)
contains 20 or more acres, (3) if disconnected will not result in the isolation of any part of
the municipality from the remainder of the municipality, and (4) if disconnected will not be
a territory wholly bounded by one or more municipalities or wholly bounded by one or more
municipalities and a river or lake, (5) if disconnected, the growth prospects and plan and
zoning ordinances, if any, of such municipality will not be unreasonably disrupted, (6) if
disconnected, no substantial disruption will result to existing municipal service facilities such
as, but not limited to, sewer systems, street lighting, water mains, garbage collection and fire
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protection, (7) if disconnected the municipality will not be unduly harmed through loss of
tax revenue in the future." 65 ILCS 5/7--3--1 (West 2006).
Prairie Lakes consists of 197.48 acres and 170 platted single-family lots. It is populated by
166 residents who occupy 51 homes. Hidden Oaks consists of 35 single-family lots totaling 59.96
acres. Approximately 98 residents occupy 30 homes. Only five of Hidden Oaks' tracts of land are
located directly on the border of the Village. Cheval de Selle includes approximately 351 residents.
It consists of 102 parcels, all of which are zoned for single-family homes. The Moraines has 24
parcels ranging from 1 to 2.5 acres and zoned for single-family homes, and all but 2 parcels are
developed with single-family homes. The population is estimated at 72 persons. Campton Farms
consists of 87.1 acres, which are owned by 17 individuals, and has 21 residents.
The Village presented the following common assertions throughout the disconnection cases.
The Village argued that it was in its infancy and most formative period with respect to its growth
prospects, planning, and zoning and that any change resulting from these disconnections would
unreasonably disrupt and negatively impact the newly formed Village. The Village further argued
that it levied no real estate property tax and did not plan to and, therefore, its sources of revenue were
limited to state-shared funds, a portion of the township road fund tax, and sales tax. It further argued
that it did not receive tax revenue based on the average assessed or equalized assessed valuation for
all property within the Village. Therefore, the Village maintained, it was likely to suffer great loss
of tax revenue if the court granted the disconnections. Based on the evidence, the trial court rejected
these and other arguments and granted the disconnections. The Village timely appealed and we
granted motions to consolidate.
ANALYSIS
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I. Burden
In disconnection cases, the petitioners have the burden of proving the statutory requirements.
City of DeKalb v. Town of Cortland, 233 Ill. App. 3d 307, 310 (1992). However, the disconnection
statute is to be liberally construed in favor of disconnection (Harris Trust & Savings Bank v. Village
of Barrington Hills, 133 Ill. 2d 146, 154-55 (1989)), regardless of the petitioners' purpose. Indian
Valley Golf Club, Inc. v. Village of Long Grove, 135 Ill. App. 3d 543, 547 (1985). The common
theme is to allow disconnection absent a hardship or impairment to the municipality. Indian Valley
Golf Club, 135 Ill. App. 3d at 547.
II. Applicability of Section 7--3--1
The Village first contends that section 7--3--1 is not applicable to petitioners' disconnection
petitions. The Village asserts that section 7--3--1 applies only to single-parcel disconnections
whereas section 7--3--6 applies to multiple-parcel disconnections. See 65 ILCS 5/7--3--6 (West
2006). The Village argues that, because the present disconnection petitions involve multiple parcels
and were filed under section 7--3--1 instead of section 7--3--6, the cases should have been dismissed.
In support of its argument, the Village contrasts the language in section 7--3--1 that permits
disconnection of "any territory" (emphasis added) (65 ILCS 5/7--3--1 (West 2006)) with the
language in section 7--3--6 that permits disconnection of "any area of land consisting of one or more
tracts" (emphasis added) (65 ILCS 5/7--3--6 (West 2006)). The Village maintains that section 7--3--
1's omission of the emphasized text in section 7--3--6 should be construed to mean that the
legislature wanted to limit section 7--3--1 to single parcels. Because this issue involves statutory
interpretation, our review is de novo. In re Marriage of Best, 228 Ill. 2d 107, 116 (2008).
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We find that this argument lacks merit. Clearly, section 7--3--1 is not limited to single
parcels. Section 7--3--1 requires that the "territory" to be disconnected must be 20 or more acres and
must not be wholly bounded by one or more municipalities and a river or lake. It makes no sense
to infer that the legislature intended a "single parcel" limitation when it did not simply state such a
limitation in section 7--3--1. Regardless, section 7--3--1 allows a petition for disconnection to be
signed by a "majority" of property owners, which clearly implies that the legislature intended that
this section apply to multiple-parcel disconnections. We agree with petitioners that it is difficult to
imagine a scenario where a "majority" of property owners could exist in the absence of multiple
parcels.
In addition, both section 7--3--1 and section 7--3--6 permit disconnection of a "territory."
It is clear that a "territory" may include "multiple parcels," and Illinois courts have consistently
permitted the annexation and disconnection of multiple-parcel "territories" under section 7--3--1 and
7--3--6. See, e.g., In re Disconnection of Certain Territory from the Village of Machesney Park, 122
Ill. App. 3d 960, 972 (1984) (wherein we affirmed the disconnection of a multiple-parcel territory
under section 7--3--1); see also La Salle National Trust, N.A. v. Village of Mettawa, 249 Ill. App.
3d 550, 578 (1993) (affirming the disconnection of an 11-tract territory under section 7--3--6).
III. Bordering Territories
The Village next contends that the trial court erred in ruling that the disconnecting territories
are located "on the border" of the Village. The Village asserts that section 7--3--1 requires that a
disconnecting territory cannot be "on the border" unless each and every individual parcel in the
disconnecting territory also lies on the border.
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In Village of Mettawa, 249 Ill. App. 3d at 564-65, and Indian Valley Golf Club, Inc. v.
Village of Long Grove, 135 Ill. App. 3d 543, 552, 554 (1985), we held that, where there is
reasonable contiguity among parcels in a territory to be annexed, even extreme irregularity of
boundaries does not bar annexation. The Village suggests that these decisions were premised on the
commonality of ownership. However, we find nothing in those decisions to suggest that they were
premised on the commonality of ownership.
Similarly, nothing in the disconnection statute draws a distinction based on common
ownership. Section 7--3--1 states only that land to be disconnected must be located on the border
of the municipality from which it is being disconnected; it does not state that all parcels in the
disconnecting land must be on borders, and it could not reasonably be interpreted in that manner if
it were ever to be given any effect. 65 ILCS 5/7--3--1 (West 2006). The principal object in
construing a statute is to ascertain and give effect to the intention of the legislature. Indian Valley
Golf Club, 135 Ill. App. 3d at 552. The plain meaning of the language used by the legislature is the
safest guide to follow in construing any act, as the court has no right to read into the statute words
that are not found therein either by express inclusion or by fair implication. Indian Valley Golf Club,
135 Ill. App. 3d at 552. Therefore, we also reject this argument.
IV. Notice Requirement
The Village next contends that petitioners failed to provide adequate notice to all
nonpetitioner taxpayers and property owners under the notice provisions set forth in sections 7--3--2
and 7--3--6.1 of Article 7 of the Municipal Code. 65 ILCS 5/7--3--2, 7--3--6.1 (West 2006). The
Village contends that petitioners were required to publish the dates of the public hearings and to send
certified letters to all nonpetitioner taxpayers and property owners notifying them of the very first
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court appearance, even if the first court appearance was a routine motion presentment call rather than
the public hearing. The Village claims that any failure to provide such notice of the very first court
appearance was incurable and required immediate dismissal. We note that the Village stipulated that
petitioners provided proper notice in the Cheval de Selle case. Similarly, in the Campton Farms
case, petitioners obtained waivers of notice from the only two nonpetitioner taxpayers and property
owners. Thus, the Village's argument applies only to the remaining three cases.
The Village presents a question of statutory interpretation. The principles guiding our
analysis are familiar. The primary objective in construing a statute is to ascertain and give effect to
the legislature's intent, with the best indication of that intent being the plain and ordinary meaning
of the statute's language. Wisniewski v. Kownacki, 221 Ill. 2d 453, 460 (2006). All other rules of
statutory construction are subordinate to this cardinal principle. In re Detention of Lieberman, 201
Ill. 2d 300, 312 (2002). In construing statutes, courts will presume that the legislature did not intend
absurdity, inconvenience, or injustice. Alvarez v. Pappas, 229 Ill. 2d 217, 228 (2008). The
construction of a statute presents a question of law, which we review de novo. In re Marriage of
Best, 228 Ill. 2d 107, 116 (2008).
The first notice provision of the disconnection statute is in section 7--3--2, which provides,
in relevant part:
"Upon the filing of the petition as provided in Section 7--3--1, the court shall set the
same for public hearing which date of public hearing shall be within 30 days of the date of
the filing of the petition. The court shall give at least 10 days notice of such hearing by
publishing notice thereof once in a newspaper published in the municipality from which the
territory is sought to be detached, or if there is no such newspaper published in such
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municipality, then such notice shall be published once in a newspaper having a general
circulation within such municipality, the date of such publication to be not less than 10 days
prior to the date set for the public hearing." 65 ILCS 5/7--3--2 (West 2006).
The trial court complied with the public hearing and notice requirements under section 7--3--2.
The other notice provision is in section 7--3--6.1, which follows the disconnection provision
of section 7--3--6. Section 7--3--1 applies to a disconnection from a newly formed municipality,
whereas a petition seeking disconnection from an established municipality would be filed under
section 7--3--6. Section 7--3--6.1 provides, in relevant part:
"When territory is proposed to be disconnected by court order under this Article, the
corporate authorities or petitioners initiating the action shall notify each person who pays real
estate taxes on property within that territory unless the person is a petitioner. The notice
shall be served by certified or registered mail, return receipt requested, at least 20 days before
a court hearing or other court action. If the person who pays real estate taxes on the property
is not the owner of record, then the payor shall notify the owner of record of the proposed
disconnection." 65 ILCS 5/7--3--6.1 (West 2006).
We do not find that the notice requirements of section 7--3--6.1 also apply to disconnection
actions brought pursuant to section 7--3--1. Clearly, when the legislature placed section 7--3--6.1
after section 7--3--6, it intended that section 7--3--6.1 apply only to actions for disconnections
brought pursuant to section 7--3--6. Although section 7--3--6.1 contains language stating that it
applies to all petitions for disconnection "under this Article," the scheme of Article 7 clearly
identifies separate notice requirements for each method of disconnection, and the notice
requirements for a section 7--3--1 petition are expressly provided for in section 7--3--2.
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Moreover, section 7--3--6.1's 20-day requirement makes it incompatible with actions brought
under section 7--3--1. As the trial court noted, section 7--3--6 and section 7--3--6.1 contemplate
court proceedings with no time limitations. See 65 ILCS 5/7--3--6 (West 2006). By contrast, section
7--3--2 requires a "public hearing" within 30 days. Complying with the 30-day public hearing
requirement would be difficult if petitioners were required to provide 20 days' notice of the public
hearing via certified mail. We further note that it would be impossible to comply with the 30-day
requirement if section 7--3--6.1 required 20 days' notice of the very first court appearance at which
the public hearing was scheduled. Regardless, as the trial court held, petitioners provided proper
notice of the relevant "public hearings" and "court actions" by timely publishing notices in the
newspapers and by sending certified letters to all nonpetitioner taxpayers and owners within the
disconnecting territories.
The Village contends that such efforts were useless in any event because section 7--3--6.1
required petitioners to provide notice of the very first court appearance in each case, and it contends
that the failure to do so was incurable. First, we do not find that section 7--3--6.1 controls. Even
if it were controlling, we find nothing in the statute that requires notice of the first court appearance.
Section 7--3--6.1 simply states that notice must be given 20 days before "a court hearing or other
court action." 65 ILCS 5/7--3--6.1 (West 2006). We construe such language to mean that notice is
required before a substantive "court hearing" or "court action," not a routine motion call of no
consequence to a nonpetitioner taxpayer or owner. Finally, the time limitations in section 7--3--6.1
are directory only, because the statute does not provide a penalty for noncompliance. Therefore, any
failure to strictly comply with such notice does not invalidate the petition to disconnect. See Village
of Machesney Park, 122 Ill. App. 3d at 966. In sum, we find the Village's arguments unavailing.
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V. Due Process
The Village next argues that disconnection abridged the due process rights of unnamed
property owners. The Village claims that petitioners were permitted to directly and materially affect
the status of literally hundreds of nonpetitioners by seeking disconnection of their property. The
Village ignores the purpose of the notice requirements of section 7--3--2, which is to protect
nonpetitioners' rights to be heard. Accordingly, we also reject this argument.
VI. Evidentiary Rulings
The Village next takes issue with several of the trial court's evidentiary rulings. Evidence
is relevant where it tends to prove a matter in controversy or has a legitimate bearing on a disputed
matter. Northern Illinois Medical Center v. Home State Bank of Crystal Lake, 136 Ill. App. 3d 129,
152 (1985). The determination of whether particular evidence is relevant is within the discretion of
the trial court and will not be disturbed absent an abuse of discretion. In re Estate of Hoover, 155
Ill. 2d 402, 420 (1993).
The Village first asserts that the trial court erred in including evidence regarding EAV,
property taxes, and other potential revenue sources. Petitioners pointed out that the Village had the
ability to generate revenue through property taxes. In all of the cases, except Cheval de Selle,
petitioners also noted that the Village had other untapped sources of revenue, such as utility taxes
and franchise taxes. The Village claims that such evidence was irrelevant and argues that the trial
court's analysis of the Village's future tax revenues should be limited to those sources that the Village
is currently utilizing. We disagree.
We first find that any error by the trial court regarding this issue was harmless, as in each
case the trial court specifically found that disconnection would not "unduly harm" the Village, even
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if the Village continued to operate on only its current revenue sources. For example, the trial court
found in the Moraines case that the Village's disclosed 2008 revenues were at least $1,955,755, and
its anticipated 2008 expenses were only $1,484,770. Therefore, the Village was projecting a surplus
of nearly $500,000, which was more than enough to accommodate all five disconnections. The trial
court found that the Village could have a cumulative surplus through 2017. The trial court made
similar findings in the other four cases.
Furthermore, section 7--3--1 allows an analysis of the impact on a municipality's "future" tax
revenue, not its "current" tax revenue. Thus, a trial court may consider revenue sources that may be
available in future years even if they are not currently being utilized. See, e.g., Village of Mettawa,
249 Ill. App. 3d at 571 (court "may take into account the availability of other sources of revenue to
replace the revenue lost to the municipality").
The Village also asserts that the trial court improperly considered statements and analyses
regarding the Village's EAV and EAV per capita that were made before it became incorporated. As
stated, during preincorporation hearings, the Village's current president, Smith, and its counsel,
Braithwaite, mentioned the Village's EAV and EAV per capita as evidence that the Village had a
sufficient tax base. During each case, evidence of preincorporation conduct and statements were
admitted in several contexts: (1) through Philip Bus's testimony (in the Cheval de Selle and
Campton Farms cases); (2) through various documents; and (3) through Steven Hovany's testimony.
The Village asserts that such evidence should have been excluded as irrelevant.
We observe first that the Village forfeited many of its objections by failing to raise them
before the trial court. Regardless of forfeiture, the evidence was relevant because it tended to prove
a matter in controversy. One of the Village's primary arguments was that EAV and property taxes
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could not be used to evaluate the Village's tax base. In response to that argument, petitioners were
entitled to show that Smith, Bus, and Braithwaite all previously advocated the consideration of that
revenue source. Such evidence bolstered Hovany's and Steven Lenet's analyses and called Smith's
credibility into question by demonstrating that she took a contrary position when it was in her
interest to do so.
VII. Qualifications and Opinions of Expert Witnesses
The Village next contends that the trial court erred by qualifying petitioners' expert witnesses
and, even if the trial court did not err in qualifying them, by allowing them to present their opinions,
because the witnesses failed to present adequate foundations.
Expert testimony is admissible if it assists the trier of fact in understanding the evidence or
deciding a fact in issue and if the witness is qualified by reason of knowledge, skill, experience,
education, or training to give said testimony. Village of Plainfield v. American Cedar Designs, Inc.,
316 Ill. App. 3d 130, 139 (2000). If the expert's opinion is without proper foundation, particularly
where he or she fails to take into consideration an essential factor, that opinion " 'is of no weight and
must be disregarded.' " People v. Wilhoite, 228 Ill. App. 3d 12, 21 (1991), quoting 32 C.J.S.
Evidence §569(1), at 609 (1964). Decisions regarding the admissibility of evidence and the
sufficiency of the qualifications of an expert rest within the sound discretion of the trial court.
Sobczak v. Flaska, 302 Ill. App. 3d 916, 929 (1998). Such decisions will not be reversed on appeal
unless an abuse of discretion has occurred. Village of Plainfield, 316 Ill. App. 3d at 140.
During the course of the evidentiary hearings, the trial court heard testimony from several
expert witnesses, including Hovany, Joseph Abel, Lenet, Bus, and Ronald Lanz. The trial court
qualified each as an expert in his respective field and ultimately agreed with their conclusions.
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We observe that the Village forfeited much of this argument by failing to make objections
before the trial court. The Village did not object to Bus's testimony or to Hovany's and Abel's
qualifications. The Village also did not object to Lenet's qualifications. Having failed to object in
the trial court, the Village is barred from raising many of its objections before this court.
Moreover, we do not find that the trial court abused its discretion in qualifying the witnesses
to render expert testimony. Abel has over 40 years of experience in land planning and was Du Page
County's lead planner for 17 years. Hovany has a master's degree in urban planning, was the lead
planner for Naperville and Schaumburg, and had performed hundreds of municipal tax base studies
during his career. Bus is Kane County's director of development, has over 30 years of experience
in land use, and was very familiar with Kane County and the Village. Lenet has a master's degree
in urban planning, has over 40 years of experience in urban planning, and had been qualified as an
expert in numerous disconnection cases. Lanz has a master's degree in urban planning and has 10
years of experience as a municipal planner and private consultant.
As to the lack of foundation, the Village claims that the witnesses relied solely on irrelevant
preincorporation statements. We found that the preincorporation statements were relevant. Thus,
the Village's argument lacks merit. In any event, Abel's, Lenet's, and Lanz's opinions on
comprehensive planning were not based on preincorporation statements. Similarly, Hovany's and
Lenet's opinions regarding the Village's future tax revenues were based on their analyses of financial
and population information provided by the Village. While they referred to certain preincorporation
statements to buttress their opinions, their opinions were not based on those statements. In addition,
they relied on other sources of tax revenues to buttress their opinions.
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The Village complains that the witnesses lacked experience to give opinions about the
Village. We find this argument unavailing also. The Village certainly has some unique
characteristics; however, its land use, zoning, and comprehensive and financial planning operate
under the same laws and rules as those of other similar municipalities. There is no reason why
professionals with vast experience in dealing with municipalities similar to the Village cannot use
their experience to render opinions regarding the Village. We note too that some of the witnesses
did have experience with the Village. Bus was present at the creation of the Village and analyzed
its tax base twice. Hovany's analysis included a review of Bus's work regarding the Village.
VIII. Manifest Weight of the Evidence
The Village first asserts that the trial court "construed the evidence in favor of disconnection
as if petitioners had to meet a 'lowered' standard." It is unclear whether the Village takes issue with
the trial court's evidentiary rulings or its construction of the disconnection statute. The Village
argues that, by analyzing the effect of disconnection on an 11-month old municipality as though it
were a long-established and mature community, the trial court failed to take into account the unique
circumstances facing the Village and thus lessened the petitioners' burden of proof. The Village
appears to take issue with the statute's "unduly harmed" standard, because of its "unique" status as
a rural, newly-established community. It suggests that the trial court should have crafted a new
standard to account for the "unique confluence of issues" in this case.
The Village offers no authority to support its claim that a different standard should be applied
to new municipalities. The "unduly harmed" standard applies to new municipalities, under section
7--3--1, and also applies to established municipalities, under section 7--3--6 (65 ILCS 5/7--3--1, 7--
3--6 (West 2006)). The Village does not identify what it believes to be the correct standard or how
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the correct standard differs from the current standard. The Village also offers no evidence to suggest
that the trial court construed the evidence in favor of disconnection as if petitioners had to meet a
lower standard. Accordingly, we reject this argument.
Next, the Village contends that the trial court's judgments should be reversed because they
were against the manifest weight of the evidence. The Village complains that petitioners failed to
establish the necessary seventh requirement of section 7--3--1 that "if disconnected the municipality
will not be unduly harmed through loss of tax revenue in the future." 65 ILCS 5/7--3--1 (West
2006). The Village points out that the experts relied almost entirely on the EAV, which was
irrelevant because the Village did not have the legal right to levy a property tax and it was unlikely
that it would in the future. The Village also asserts that petitioners did not establish that there would
be any revenues to offset the losses from the disconnections.
With respect to the seventh requirement, the plain language of the statute makes it clear that
disconnection should be allowed unless it "unduly" harms a municipality through loss of tax revenue
in the future. 65 ILCS 5/7--3--1 (West 2006); Mettawa, 249 Ill. App. 3d 571; City of De Kalb v.
Town of Cortland, 233 Ill. App. 3d 307, 313-14 (1992) (analyzing the same language under section
7--3--6). Thus, the legislature recognized that a municipality will likely suffer some loss of tax
revenue in the future because it will no longer receive the taxes generated by the disconnected
property, and that loss, by itself, is not necessarily sufficient to bar disconnection. City of De Kalb,
233 Ill. App. 3d at 313-14. A determination of whether the loss of tax revenue in the future will
unduly harm a municipality may take into account the availability of other sources of revenue to
replace the lost revenue. Mettawa, 249 Ill. App. 3d 571. We will not disturb the trial court's finding
that petitioners established the statutory requirements for disconnection unless the finding is clearly
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contrary to the manifest weight of the evidence. JLR Investments, Inc. v. Village of Barrington Hills,
355 Ill. App. 3d 661, 668 (2005). A decision is against the manifest weight of the evidence only
when the opposite conclusion is apparent or when findings appear to be arbitrary, unreasonable, or
not based on the evidence. JLR Investments, 355 Ill. App. 3d at 668.
We first observe that, in each case, contrary to the Village's assertion, the trial court did not
just rely on the experts' analyses of the EAV and the levying of property taxes in concluding that the
proposed disconnection would not unduly harm the Village through the loss of tax revenue in the
future. The trial court also relied on other potentially available sources of revenue, such as utility
taxes, telecom taxes, vehicle sticker taxes, franchise taxes, and transfer taxes.
Second, the trial court disapproved of the Village's argument that the expert witnesses could
not rely on EAV per capita and the implementation of property taxes in analyzing whether the
proposed disconnection would unduly harm the Village. The court observed that, during its
incorporation phase, the Village used the same methodology in its successful effort to persuade the
Board to approve the petition for incorporation, and the court was troubled by the Village's apparent
about-face on this issue. The court would not credit the Village's repeated protestations that it could
not impose a property tax without a referendum. The court commented that the Village incorporators
were aware of that obstacle when they presented their case to the Board. In addition, the court
remarked that virtually all property tax increases require some type of political process prior to
implementation. The court opined that the mere fact that such a process might encounter political
opposition was not extraordinary and that the Village had not introduced any evidence to suggest that
a referendum to impose a property tax presented any sort of "insurmountable obstacle." The court
was not persuaded that it could simply disregard such alternate sources of funding simply because
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the Village had not attempted to utilize those sources, or because its elected officials feared it would
be politically inexpedient to do so. We agree with the trial court's assessment.
In the Cheval de Selle case, the trial court credited the testimony of expert witnesses Hovany
and Bus regarding the appropriate method to use in determining whether a municipality could meet
future revenue needs. The court also found that examining the EAV per capita was amply supported
by the record. Moreover, the court found that Hovany's testimony regarding the impact of
disconnection on the Village's EAV per capita was well supported and was not contested by the
Village. Based on Hovany's testimony, the court found that the Village currently had an EAV per
capita of between $46,000 and $51,000, which was significantly higher than those in surrounding
municipalities and would be increased, not decreased, by disconnection.
In any event, the trial court further found that disconnection would not unduly impair the
Village's non-property-tax sources of revenue. For 2008, the Village had budgeted expenses of
$1,484,770. During that same year, the Village projected non-property-tax revenues well in excess
of $2 million, including per capita funds that, based on its census, will increase every year through
2017, road and bridge funds, sales taxes, and building permits. The fact that this was "speculative"
was of no moment, as it was obvious that the Village had untapped sources of revenue available.
Moreover, the evidence revealed that the loss from disconnection would be approximately 2% to 3%
of the Village's revenue. Undoubtedly, the loss of approximately 2% to 3% of the Village's revenue
would be short-lived because of the numerous other sources of revenue available to the Village. See
Sun Electric Corp. v. Village of Prairie Grove, 59 Ill. App. 3d 608, 614 (1978). Based on the facts
of this case, we conclude that the trial court's finding, that the disconnection of the Cheval de Selle
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territory would not cause the Village to suffer undue harm through the loss of tax revenue in the
future, was not against the manifest weight of the evidence.
In the Prairie Lakes case, Hovany determined, using conservative assumptions, that the
Village would be able to generate between $437,118 and $512,898 in additional tax revenues from
the other sources named above. He determined that those additional tax revenues far exceeded the
potential loss of tax revenue resulting from the disconnection, which he calculated to be only
$38,746. On the basis of his analysis, Hovany concluded that the proposed disconnection would not
unduly harm the Village through the loss of tax revenue in the future.
Kathy Catalano, the Village's treasurer, admitted that, when she calculated losses from the
proposed disconnection, she included all portions of state-shared revenue, including a road and
bridge tax, but, when she calculated the Village's total revenues, she did not include the road and
bridge tax portion of the state-shared revenue. She admitted that, if the Village properly included
all revenues, including road and bridge tax revenue, the Village would operate at a surplus of
$392,799 in its first full fiscal year of operation. Catalano further admitted that, if the Village
operated with that surplus, the Village would not suffer undue harm through the loss of tax revenue
in the future. Based on the facts of this case, we conclude that the trial court's finding, that the
disconnection of the Prairie Lakes territory would not cause the Village to suffer undue harm through
the loss of tax revenue in the future, was not against the manifest weight of the evidence.
In the Hidden Oaks case, which was tried at the same time as the Prairie Lakes case, Hovany
performed an analysis of potential tax revenues that would be available to the Village from those
sources listed above. He determined, using conservative assumptions, that the Village would be able
to generate between $440,951 and $516,731 in additional tax revenues from those limited sources.
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The trial court concluded that those potential additional revenues far exceeded the potential losses
resulting from the disconnection, which Hovany calculated to be only $20,174. Further, the trial
court considered the testimony of Catalano, who admitted that, if the Village properly included all
revenues, including road and bridge tax revenue, the Village would operate at a surplus in its first
full fiscal year of operation. She further admitted that, if the Village operated with that surplus, it
would not suffer undue harm through the loss of tax revenue in the future. Based on the facts of this
case, we conclude that the trial court's finding, that the disconnection of the Hidden Oaks territory
would not cause the Village to suffer undue harm through the loss of tax revenue in the future, was
not against the manifest weight of the evidence.
In the Moraines case, the trial court found that Hovany was the only expert who offered an
opinion on the specific issue of undue harm. The court credited his testimony, finding that he was
well qualified to offer expert analysis on the issue and that his testimony regarding the appropriate
method to use in determining whether a municipality could meet future revenue needs was amply
supported by the record. The court found that Hovany's testimony regarding the impact of
disconnection on the Village's EAV per capita was well supported and was not contested by the
Village. Based on Hovany's testimony, the court found that the Village currently had an EAV per
capita of between $46,600 and $50,000, that the figure was significantly higher than those in
surrounding municipalities and would be increased, not decreased, by disconnection, and that the
EAV per capita for the disconnecting territory was $39,556.
The trial court further found that disconnection would not impact the Village's non-property-
tax sources of revenue. Catalano estimated the annual shortfall in revenue from the disconnecting
territory at between $11,500 and $15,500 over a 10-year period. She stated that the Village was
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currently $40,000 in the black. The court found that the revenue that the Village received from the
disconnecting territory was a tiny fraction of the total revenue available to it, since the Village was
receiving considerable revenue from various other sources. In 2008, the court noted, the Village will
receive $132.45 in "per capita" revenue from the State for each of its 10,504 certified residents, a
total of $1,391,255. If the Village's census reveals 2,500 new residents and a new population of
13,004, the Village's total revenue at the 2008 rates will grow to $1,722,380. The Village also
projected that it would receive approximately $450,000 in road and bridge funds. Catalano estimated
that the Village had over 200 businesses within its boundaries that would potentially generate
sales-tax revenue. Hovany projected that just 18 to 24 of those businesses would annually generate
$130,000 in sales taxes for the Village. The Village currently imposed fees for liquor licenses and
expected to receive $12,500 per year. Building permits cost between $30,000 and $37,000. These
sources of revenue do not include sales taxes from the other roughly 180 businesses or revenue from
other sources such as vehicle stickers, utility taxes, fines and penalties. However, as the court
pointed out, even the Village's disclosed revenue was enough to create a surplus in 2008 and the
ensuing years. "When Ms. Catalano's projections regarding future growth are applied to the 2008
figures for the entire Village (and not just to revenue figures for the Disconnect Territory) it paints
a rosy picture for the Village of Campton Hills." In fact, the court found that, under Catalano's
projections, the Village should have a budget surplus in each year through 2013, and a cumulative
budget surplus through 2017. While these were projections based on the Village's figures and
methodology, they showed that the loss of $11,500 to $15,500 of annual revenue would be
inconsequential to the Village. Based on the facts of this case, we conclude that the trial court's
finding, that the disconnection of the Moraines territory would not cause the Village to suffer undue
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harm through the loss of tax revenue in the future, was not against the manifest weight of the
evidence.
Finally, in the Campton Farms case, Catalano estimated that the Village's loss of state-shared
revenue from the disconnection would be $3,444 in 2008, and $37,304 over a 10-year period.
Catalano stated that the loss of $3,444 would "unduly harm" the Village. However, she also stated
that the loss of even $1 would unduly harm the Village. Clearly, the Village failed to make a
distinction between a disconnection that causes some harm and one that causes "undue harm." As
stated, virtually every disconnection will cause some harm to the municipality through the loss of
some tax revenue. However, the loss must be so substantial that it will "unduly" harm the
municipality in the future. In Sun Electric, we found that the loss of 26% of a municipality's tax
revenue did not cause "undue" harm, sufficient to prevent the disconnection. Sun Electric, 59 Ill.
App. 3d at 614.
In the present case, the trial court noted that there would be a loss of only .002319% of the
Village's projected revenue in 2008, which is approximately two-tenths of one percent of the
Village's revenue. The actual loss, though, would be even less of the Village's revenues. Catalano
calculated that the total income for the Village in 2008 would be in excess of $1.8 million, and that
its expenses would be only $1,484,770. Thus, it would have a surplus in excess of $350,000.
Moreover, this figure did not take into account the expected increase in population, which would
increase the revenue coffers, giving the Village a surplus of over $500,000.
Of course, these figures did not take into account other sources of revenue available to the
Village such as sales taxes, liquor licenses, vehicle registrations, and fees charged to developers for
annexations, preliminary plans, and final plat approvals. Based on the facts of this case, we conclude
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that the trial court's finding, that the disconnection of the Campton Farms territory would not cause
the Village to suffer undue harm through the loss of tax revenue in the future, was not against the
manifest weight of the evidence.
IX. Cumulative Impact of Pending Disconnection Cases
Last, the Village points out that there are currently 16 petitions for disconnection from the
Village still pending in the trial court. At trial, the Village attempted to present evidence regarding
the possible impact of these multiple cases. Specifically, the Village sought to introduce evidence
that granting multiple disconnections would unduly harm the Village through the loss of tax revenue
in the future. The trial court refused to consider such evidence, and the Village contends that its
refusal "ignored the economic reality presented by disconnection." The Village asserts that the
disconnection statute does not by its terms limit the scope of "undue harm" to a single, pending
disconnection but clearly looks to the "current and prospective" overall financial health and viability
of a village.
Contrary to the Village's argument, a court cannot speculate as to future events; it is the state
of affairs at the time of the hearing that controls, not the factual situation a litigant might desire. City
of De Kalb v. Town of Cortland, 233 Ill. App. 3d 307, 311 (1992). While any disconnection will
almost certainly deprive a municipality of some revenue, a village must show a significant loss. The
loss of future tax revenue of the pending cases has no bearing here. Even if the cases had been
decided, it might not necessarily be sufficient to bar disconnection. See Village of Mettawa, 249 Ill.
App. 3d at 571.
Furthermore, an attempt to introduce evidence relating to other disconnection cases amounts
to an attempt to rewrite the disconnection statute. Under the statute, a territory may disconnect if
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its disconnection will not "unduly harm" the municipality. To require a showing that all pending
disconnections, taken together, will not "unduly harm" the Village would saddle each petitioner with
a much heavier burden. The disconnection statute does not place such a burden on petitioners.
We further agree that the Village's argument would lead to absurd results. Petitioners would
be barred from disconnecting simply because another unrelated disconnection action would be
deemed to be "too large," and they therefore would be held hostage to other proceedings over which
they have no control. Also, administration in most cases would be impractical. The parties would
have to conduct discovery into the merits of all of the other cases, and, although the petitions most
likely would be staggered over many months, it would be difficult to conduct an evidentiary hearing
on any one petition until all of the petitions could be heard.
For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.
Affirmed.
McLAREN and BOWMAN, JJ., concur.
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