Kleinhans v. Callas

392 Ill. App. 3d 577
CourtAppellate Court of Illinois
DecidedJune 9, 2009
DocketNo. 2—08—0207
StatusPublished

This text of 392 Ill. App. 3d 577 (Kleinhans v. Callas) 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
Kleinhans v. Callas, 392 Ill. App. 3d 577 (Ill. Ct. App. 2009).

Opinion

PRESIDING JUSTICE ZENOFF

delivered the opinion of the court:

The objectors, Perry G. Callas and James L. Harrer, appeal in their capacities as trustees from an order of the circuit court of McHenry County dismissing their objections to petitioners’ petition for annexation to the Village of Bull Valley (Village). For the reasons that follow, we affirm the judgment of the circuit court.

BACKGROUND

On September 29, 2006, petitioners (Steven E Kleinhans, Linda J. Kleinhans, Peter St. Clair Manson,1 Adrienne C. Mahoney, Kamin E Mahoney, James A. Morgan, Jean B. Morgan, May Kay Azzarello, Frances T. Azzarello, Daniel L. Adams, Joyce S. Adams, and Rebecca U. Manson) filed a petition in the circuit court of McHenry County pursuant to section 7 — 1—2 of the Illinois Municipal Code (Code) (65 ILCS 5/7 — 1—2 (West 2006)) to annex parcels of property owned by them, and two other parcels for which Callas and Harrer acted as trustees, to the Village. The parcels sought to be annexed, known as the territory, were located at Ridge Road and Valley Hill Road in unincorporated McHenry County. The objectors filed objections to the petition for annexation, asserting, inter alia, that the petition for annexation was an improper attempt by the Village to annex property it could not legally annex in its own name and that the petition for annexation was brought for the improper purpose of subjecting the territory to the Village’s restrictive zoning in order to thwart a proposed one-acre development in the territory. At the hearing on the annexation petition, the Village took the position that the objections were not relevant. The trial court nevertheless allowed the following evidence.

Callas was the trustee of the Kaiser Trust, which owned 120 acres of farmland in the northern part of the territory (the Kaiser farm). In March 2006, he began discussions with the Village regarding voluntarily annexing the Kaiser farm to the Village if the Village would permit three-acre lot sizes on 40 buildable lots. Callas received some verbal encouragement from Village officials, so he had a sketch plan prepared and he deposited $5,000 with the Village, as required to reimburse the Village’s costs associated with the sketch plan review. However, Callas had altered his concept of three-acre lots to one-acre lots with more open space. In approximately June 2006 Callas’s negotiations with the Village halted when the Village ignored his requests to be placed on the zoning board’s agenda, despite his having paid the $5,000 for the review. In correspondence to the Village’s attorney in July 2006, Callas indicated his intention to go to the county with his plan, as the county would approve one-acre zoning. Unbeknownst to Callas, petitioners were in consultation with the Village to annex the Kaiser farm involuntarily, thus subjecting the property to five-acre zoning rather than the one-acre zoning Callas proposed. Callas did not find out about petitioners’ maneuvering until he received notice of the hearing on the petition for annexation in approximately early October 2006.

Harrer was a trustee of the Mary Harrer Trust and the Joseph Harrer Trust, which owned 100 acres, 80 acres of which were a subject of the petition for annexation. The Harrer property was the family farm, and Harrer testified that he felt a sentimental attachment to it and did not want a portion of it “sucked” into the Village.

Other evidence adduced at the hearing on the objections to the petition for annexation showed the following. Nancy Jung, who lived outside the territory, signed the section 7 — 1—2 petition for annexation and the accompanying affidavit, which were prepared by the Village’s attorney, and Emily Berendt, a lawyer and a member of the Village’s plan commission, assisted Jung in getting proper signatures on the petitions Jung circulated.2 The Village’s attorney, Michael Smoron, and Berendt also furnished Jung with deeds and voter records to review.

When Jung heard about Calias’s proposed development of the Kaiser farm, she contacted the Village president, Brian J. Miller, and asked if the Kaiser farm could be involuntarily annexed to the Village. Miller directed Jung to speak with Smoron. After speaking with Smoron, Jung began recruiting people to sign petitions to annex the Kaiser farm to the Village. Eventually Jung met with all of the petitioners and showed them how they could “force” the annexation of the Kaiser farm by voluntarily annexing their own to the Village. Miller and Berendt were in attendance when Jung met with the Morgans, two of the petitioners. Jung testified that the reason she recruited petitioners was to defeat Callas’s plan for the development of the Kaiser farm.

Berendt witnessed the signatures on a number of the petitions to annex the territory. She went to petitioners’ various homes in order to get their signatures. Berendt spoke with Jung and Miller about the proposed development of the Kaiser farm, and she also attended meetings at the Morgans’ home with other petitioners, the subject of which was the annexation of the territory to the Village. She was present when Miller explained the annexation procedure to those in attendance, and she later spoke with the Morgans regarding their ability to raise alpacas on their farm if they annexed to the Village.

Miller testified that he attended two meetings at the Morgans’ home at which other persons who lived near the Kaiser farm were present. Miller explained the cost of annexing to the Village as well as answered questions about zoning. Jung had invited Miller to the meetings, and Miller at that time knew that Jung was circulating petitions, getting signatures in support of annexing to the Village, although he denied he knew any details. In addition to those meetings, Miller visited individually with some of the petitioners and answered their questions about annexation. Specifically, Miller presented the Azzarellos with the section of the Village’s zoning ordinance that covered their alpacas, although Miller denied he promised the Azzarellos that their alpacas would be welcome in the Village. Miller testified that the Village was paying some of the petitioners’ attorney fees in connection with the annexation and that the Village’s attorneys were representing petitioners. According to Miller, the Village had always financially assisted individuals who wished to annex to the Village, “so [he] didn’t see anything different” about the current situation.

James A. Morgan, one of the petitioners, testified that his wife received a telephone call from Jung about annexing to the Village. Following that call, the Morgans hosted two meetings of what Morgan called the “Bull Valley group.” At these meetings, Miller explained that the Village’s attorneys would handle all of the “legalities,” and Berendt showed the group the plan Callas proposed for developing the Kaiser farm. Morgan assumed that the Village opposed the Callas plan. Jung was also present and explained how annexing to the Village would bring the Kaiser farm into the Village as well and defeat Callas’s plan. After these meetings, Berendt presented the Morgans with a petition to sign, and she suggested that they write in a caveat on the petition that would allow them to maintain their alpacas. Later, Berendt returned and asked the Morgans to sign a petition without the caveat.

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Bluebook (online)
392 Ill. App. 3d 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kleinhans-v-callas-illappct-2009.