Russell v. Lorenz

592 N.E.2d 628, 229 Ill. App. 3d 321, 170 Ill. Dec. 192, 1992 Ill. App. LEXIS 705
CourtAppellate Court of Illinois
DecidedMay 7, 1992
DocketNo. 2—91—0303
StatusPublished
Cited by1 cases

This text of 592 N.E.2d 628 (Russell v. Lorenz) 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
Russell v. Lorenz, 592 N.E.2d 628, 229 Ill. App. 3d 321, 170 Ill. Dec. 192, 1992 Ill. App. LEXIS 705 (Ill. Ct. App. 1992).

Opinion

JUSTICE NICKELS

delivered the opinion of the court:

On June 25, 1990, petitioners Burnell Russell and other owners of land and electors residing in an unincorporated area of Lake County filed in the circuit court of Lake County a petition to incorporate certain territory as the Village of Volo (Volo) pursuant to the Illinois Municipal Code (Municipal Code) (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3— 5). The Village of Lakemoor and certain property owners in the proposed area of incorporation sought to intervene with objections to the incorporation. Lakemoor was not allowed to intervene; however, respondents David John Lorenz (objectors) and others were allowed to file their objections. After a hearing on the petition, the trial court determined that the area was not contiguous and therefore was not a village in fact. (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—6.) Petitioners appealed and raise the issue whether the finding that the area was not contiguous is against the manifest weight of the evidence. Objectors filed a cross-appeal, claiming the trial court used the wrong census to determine the population of McHenry County.

Petitioners filed a certified copy of the resolution of the Lake County Board relating to the proposed incorporation of Volo. Pursuant to section 2 — 3—18 of the Municipal Code, the resolution provided that the proposed incorporation was compatible with the official plan for development of Lake County and that the lands to be embraced in Volo constituted a sufficient tax base to insure the ability of Volo to provide all necessary municipal services to its inhabitants. Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—18.

On January 28, 1991, a hearing was held on the petition to incorporate. The parties made the following stipulations: (1) The petition was signed by more than 35 electors who resided within the territory proposed for incorporation; (2) the signatures on the petition were genuine; (3) the territory proposed for incorporation was in Lake County; (4) Lake County had a population in excess of 150,000; (5) there had been no special census for McHenry County since 1980; (6) there had been special censuses for the Cities of McHenry and Woodstock and the Villages of Crystal Lake and Cary, all located in McHenry County; (7) none of the territory sought to be incorporated was within the corporate limits of any other municipality; (8) the territory to be incorporated was owned by at least 30 different owners; (9) all of the territory to be incorporated was situated within 10 miles of McHenry County; (10) the name “Volo” had not been adopted by any other municipality; and (11) the Lake County Board passed a resolution pursuant to section 2 — 3—18 of the Municipal Code, finding that the incorporation conformed with the comprehensive plan of Lake County and that there was a sufficient tax base to support the village.

Under section 2 — 3—5 of the Municipal Code, any contiguous territory in a county of 150,000 or more population may be incorporated under that section if any part of the territory is situated within 10 miles of a county with a population of less than 150,000. (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—5.) Petitioners filed a motion in limine to preclude the admission of any municipal census and estimate of population as purported proof of the population of McHenry County. The motion provided a memorandum from the United States Department of Commerce, Bureau of Census which showed the official population of McHenry County at 147,897. This number was from the 1980 United States Federal census.

During argument on the motion in limine, the trial court took judicial notice of the 1980 Federal census. Objectors sought to show an increase in the McHenry County population from the 1980 Federal census by using special censuses of five municipalities in McHenry County which were conducted since 1980. These censuses showed an increase in population for Cary, McHenry, Crystal Lake, Woodstock and Oakwood Hills (Oakwood Hills was not included in the stipulation). Objectors also sought to use a population total for McHenry County from the 1990 Federal census which results were released about one week prior to the hearing.

Although the documents were not certified, the court took judicial notice of them. It indicated that they were being filed as offers of proof because the court had previously ruled against their admission. Apparently, arguments were already heard on the motion in limine which are not in the record on appeal. However, the trial court noted that an increase in a part of the county did not legally constitute a census for the whole referring to the objectors’ argument to supplement the 1980 census with the municipal censuses. The court observed that the document regarding the 1990 census provided that “the population counts set forth here are subject to possible correction for undercount or overcount. The United States Department of Commerce is considering whether to correct these counts and will publish corrected counts, if any, not later than July 15, 1991.” Based on this information, the court concluded that the 1990 census was not an official and final census. The court granted petitioners’ motion in limine and used the 1980 Federal census as determinative of McHenry County’s population.

Objectors also sought to challenge the Lake County Board resolution. They argued that the trial court had to make a separate finding that the proposed incorporation was compatible with the comprehensive plan of Lake County and that there was a sufficient tax base for the proposed village. The court reserved ruling on the matter and allowed objectors to present the testimony of Robert Hosteller. Hosteller was the deputy director of the Lake County Department of Planning, Zoning and Environmental Quality. The court subsequently determined that it was not required to make such findings and struck Hosteller’s testimony in its entirety. It was allowed only as an offer of proof.

At the hearing, petitioners presented testimony regarding the number of inhabitants living in dwellings in the territory: 212 people. These people lived in dwellings other than those designed to be mobile. William Doland, a civil engineer and registered land surveyor, prepared the plat of the territory. He testified that the territory to be incorporated equalled 1.6 square miles. (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—5.) He explained the scale for exhibit No. 8, an aerial photograph of the territory, was 600 feet for every inch. Doland said the narrowest width of any of the tracts, east to west and north to south, was 350 feet. There was a typographical error in the legal description of the territory according to Doland. However, the court ruled that the error was cured by the plat. A copy of the plat of the proposed incorporation of Volo is found on the following page.

PLAT OF THE PROPOSED INCORPORATION OF VOLO

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Objectors called Lorenz to testify. He said his stepson had moved from Lorenz’ house in the first week of June 1990. Lorenz did not recall anyone coming to his house to take a count of residents.

Following the hearing, the trial court concluded that all the requirements of section 2 — 3—5 of the Municipal Code were met except one. The court found that the territory was not contiguous as required by section 2 — 3—5 and therefore was not a village in fact. (Ill. Rev. Stat. 1989, ch. 24, pars.

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Related

In Re Proposed Incorporation of Village of Volo
592 N.E.2d 628 (Appellate Court of Illinois, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
592 N.E.2d 628, 229 Ill. App. 3d 321, 170 Ill. Dec. 192, 1992 Ill. App. LEXIS 705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-lorenz-illappct-1992.