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May 7, 2001

No. 2--99--1235

JUSTICE GROMETER delivered the opinion of the court:

This appeal arises from a quo warranto action challenging theannexation of two areas of land in Lake County by defendant, theVillage of Lake Bluff. Plaintiffs consist of two distinct groups(collectively plaintiffs): N. David Graf, William S. Price, andRichard W. Surkamer (the Village plaintiffs), who are residents ofthe Village of Lake Bluff (the Village), and Elmer L. Gottschalk,Jr., who resides in the second parcel annexed by the Village, whichis known as the Sanctuary. This action comes to this courtfollowing the trial court's denial of plaintiffs' application forleave to file a complaint in quo warranto. For the reasons thatfollow, we affirm in part, reverse in part, and remand the causefor further proceedings.

BACKGROUND

On November 24, 1980, the Village annexed a parcel of land,commonly referred to as the Triangle. This parcel consisted of atriangle-shaped area located west of the Village. As part of thisannexation, the Village also annexed a railroad right-of-wayrunning from the Triangle to the Village. The right-of-way ranparallel to the borders of the Village and the Triangle. Theright-of-way was 1,000 feet long and 100 feet wide. The Villageannexed a portion of this right-of-way such that 102 feet of theright-of-way overlapped the border of the Village. As part of theannexation process, Judge Strouse, of the circuit court of LakeCounty, issued an order dated November 7, 1980, approving theannexation. This order included findings that the petition forannexation conformed with the applicable statutory requirements(see Ill. Rev. Stat. 1979, ch. 24, par. 7--1--4). This order wasnot appealed. The Triangle has remained undeveloped since the 1980annexation.

In 1998, the Village sought to annex a parcel of land known asthe Sanctuary. The Sanctuary bordered the western edge of theTriangle but was not otherwise contiguous with the Village. TheVillage board adopted an ordinance initiating this process onAugust 10, 1998. The Village's board of trustees consists of sixtrustees and a president. One of the trustees voting in favor ofthe ordinance was not physically present and participated bytelephone. The ordinance passed by a four to two vote. TheVillage then sought the approval of the circuit court of LakeCounty. See 65 ILCS 5/7--1--4 (West 1998). The court found theannexation to comply with the statutory requirements and directedthat the annexation be submitted by referendum to the electorsresiding in the Sanctuary. A majority of the electors voted infavor of the annexation.

On June 2, 1999, plaintiffs filed their application for leaveto file a complaint in quo warranto. Plaintiffs challenged bothannexations, contending, inter alia, that the annexation of theSanctuary cannot stand, for it is dependent upon the earlier,illegal annexation of the Triangle. The trial court deniedplaintiffs' request for leave to file a complaint in quo warranto. Two bases were articulated for this denial. First, the trial courtfound that all plaintiffs lacked standing to challenge theseannexations. The trial court held that plaintiffs' status asresidents and taxpayers was insufficient to confer standing uponthem. Second, the court found that it was foreclosed fromconsidering plaintiffs' challenge to the two annexations based ontheir allegations that the parcels annexed were not contiguous tothe Village. According to the trial court, contiguity is aquestion of fact. Since both annexations were approved by trialcourts, plaintiffs' current action amounts to an impermissiblecollateral attack upon the findings rendered in the earlierannexation proceedings. Plaintiffs also contended that the meetingof the board of trustees where the annexation of the Sanctuary wasapproved violated the Open Meetings Act (5 ILCS 120/1 et seq. (West1998)); however, the trial court did not base its decision uponthis ground.

STANDING 

Plaintiffs contend that the trial court erred in finding thatthey lacked standing to bring a quo warranto action. In reviewinga trial court's decision on a matter of standing, we apply theabuse of discretion standard. People ex rel. Vuagniaux v. City ofEdwardsville, 284 Ill. App. 3d 407, 416 (1996). The defendantbears the burden of demonstrating that a plaintiff lacks standingto bring an action. Vuagniaux, 284 Ill. App. 3d at 416. In a quowarranto action, a specific personal interest of the plaintiff mustappear in the pleadings. People ex rel. Hanrahan v. Village ofWheeling, 42 Ill. App. 3d 825, 833 (1976). Conclusional pleadingof such an interest is not sufficient. Hanrahan, 42 Ill. App. 3dat 833.

In order to contest an annexation in quo warranto, a plaintiffmust assert a special interest. People ex rel. First National Bankv. City of North Chicago, 158 Ill. App. 3d 85, 98 (1987). Theinterest alleged to be invaded must be a private right of theplaintiff, rather than an injury common to the public. FirstNational Bank, 158 Ill. App. 3d at 98. It must be a personalinterest; however, the fact that members of the community share alike interest does not defeat standing. People ex rel. Nelson v.Village of Long Grove, 169 Ill. App. 3d 866, 871 (1988). Furthermore, the challenged action must have a direct, substantial,and adverse effect upon the interest asserted. People ex rel.Durst v. Village of Germantown Hills, 51 Ill. App. 3d 969, 971(1977). Mere status as a resident has been held an insufficientbasis to challenge an annexation (People v. Wood, 411 Ill. 514, 521(1952)), as has the bare allegation of one's status as a taxpayer(People ex rel. Vanderhyden v. Village of Elwood, 5 Ill. App. 3d590, 592-93 (1972)).

However, where one can show a direct, substantial, and adverseimpact upon one's taxes as a result of the challenged action,standing exists. Vanderhyden, 5 Ill. App. 3d at 593. Individuals'interest in the taxes collected from them personally is distinct,in many ways, from the public's general interest in the enforcementof the law. People ex rel. McCarthy v. Firek, 5 Ill. 2d 317, 324(1955). This interest is both personal and substantial, and it isnot diminished simply because other taxpayers share a similarinterest. People ex rel. Hamer v. Board of Education of SchoolDistrict No. 113, County of Lake, 132 Ill. App. 2d 46, 49 (1971);People ex rel. McCarthy, 5 Ill. 2d at 324; cf. People ex rel.Henderson v. City of Bloomington, 38 Ill. App. 2d 9, 12 (1962)("Furthermore, it may be properly observed that all members of thegeneral public do not pay school taxes. Those upon whom such taxesfall certainly do have a personal interest in the amount they areto pay"). Plaintiffs must show a high probability or certaintythat their taxes will increase. Hamer, 132 Ill. App. 2d at 48-49. Thus, the mere fact that one is a taxpayer is insufficient toconfer standing; however, where a demonstrable adverse tax effectexists, standing does as well. Hanrahan, 42 Ill. App. 3d at 833-34.

Applying the foregoing principles to the Village plaintiffs,it becomes clear that they lack standing to bring this challenge. In their petition for leave to file a quo warranto complaint, theseplaintiffs allege that the annexation of the Sanctuary will causetax revenue generated from sales tax paid by three automobiledealerships to be diverted to provide municipal government for theSanctuary. These revenues, according to these plaintiffs, wouldhave been used either to provide them services or to reduce orprevent future tax increases. These speculative allegations areinsufficient. First, plaintiffs have not alleged that theSanctuary consists of tax-exempt property or that the tax revenuegenerated from this parcel will be insufficient to offset the costof providing governmental services. In People ex rel. Kirby v.City of Effingham, 43 Ill. App. 3d 360, 361-62 (1976), an argumentwas advanced similar to that asserted here. However, in Kirby, theannexed land was to be used for a school and was exempt from taxes. Plaintiffs have not established that the Sanctuary will burden themin the same manner that the property annexed in Kirby burdened theplaintiffs in that case. Second, with respect to sales taxrevenues being used for future property tax relief, plaintiffs havenot pleaded anything beyond mere conclusions to indicate eitherthat property taxes would increase or that sales tax revenues wouldbe used to ameliorate such an increase if it, in fact, occurred. Third, to the extent plaintiffs' allegations can be read asasserting a diminution of services, plaintiffs have not pleadedanything regarding any specific service that has been diminished asa result of the annexation of the Sanctuary.

The Village plaintiffs also allege that they were denied theirpersonal right to vote on the annexation of the Sanctuary and claimthis as an alternative basis for standing. However, the procedureset forth in the Illinois Municipal Code (the Code), the statutegoverning this annexation, provides no such right to theseplaintiffs. 65 ILCS 5/7--1--1 et seq. (West 1998). We do not readplaintiffs' attack upon the annexation as a challenge to theconstitutionality of the annexation statute itself. Therefore,this argument is without merit.

Regarding Gottschalk, the plaintiff residing in the Sanctuary,we reach a different result. Some of the bases for standingasserted by Gottschalk are speculative. For example, he assertsthat he is now subject to the taxing discretion of anothergovernmental body as well as the regulations and ordinances of theVillage. These allegations demonstrate no adverse or substantialdetriment in themselves. In the absence of some showing that theapplication of the ordinances or the exercise of the discretioncomplained of has some tangible effect on a personal interest ofGottschalk, these allegations are insufficient to confer standing. Gottschalk has, however, alleged more. Specifically, he complainsthat, as a result of the annexation, he must now purchase vehiclestickers from the Village, that he has been assessed with Villageproperty taxes, and that he must now pay for a garbage collectionservice regardless of whether he chooses to use it. Theseallegations flow directly from the annexation, are adverse in thatthey result in an increased financial burden, and, unlike beingsubjected to the Village's ordinances and taxing discretion, arethings of substance.

Thus, we conclude that Gottschalk has standing to bring a quowarranto action, while the Village plaintiffs do not.

CONTIGUITY

Plaintiffs also argue that the trial court erred in findingthat the current action would constitute an impermissiblecollateral attack upon the prior orders of the two trial courtsthat approved the two annexations. We will overturn a denial ofleave to file a complaint in quo warranto only if the trial courtabused its discretion in denying the petition. Nelson, 169 Ill.App. 3d at 871. The application of the incorrect legal standardconstitutes an abuse of discretion. Zavell & Associates, Inc. v.CCA Industries, Inc., 257 Ill. App. 3d 319, 322 (1993). In thepresent case, plaintiffs challenge both annexations because they donot meet the legal definition of "contiguous" (see, e.g., People exrel. Adamowski v. Village of Streamwood, 15 Ill. 2d 595 (1959)) asrequired by the Code. The trial court found contiguity to be aquestion of fact and not subject to attack in a quo warrantoaction. Plaintiffs contend that contiguity is a jurisdictionalprerequisite in an annexation and thus is subject to review by quowarranto. The resolution of this issue also disposes of many ofthe related issues raised by the parties.

Before turning to the precise issue raised, a review of thenature and purposes of a quo warranto action is required. Quowarranto is the only appropriate vehicle for challenging acompleted annexation. People ex rel. Foreman v. Village of RoundLake Park, 171 Ill. App. 3d 443, 455 (1988). The only issueproperly raised in such an action is whether the annexation, due toa lack of power or jurisdiction, is a nullity. People ex rel. Townof Richwoods v. City of Peoria, 80 Ill. App. 2d 359, 363 (1967). A quo warranto action requires a defendant to explain by whatauthority it acts. City of Highwood v. Obenberger, 238 Ill. App.3d 1066, 1079 (1992). Conversely, the propriety of a givenexercise of a properly vested power is not reviewable in such aproceeding. People ex rel. Chillicothe Township v. Board ofReview, 19 Ill. 2d 424, 427 (1960). The latter may be raised ondirect review. Town of Richwoods, 80 Ill. App. 2d at 363. Thus,unless contiguity is a jurisdictional prerequisite, as plaintiffsassert, a challenge based on contiguity is beyond the scope of aquo warranto action.

Further, it must be recognized that a municipality's power toannex land derives entirely from the statute granting that power,and no comparable right existed at common law. People ex rel.Brzica v. Village of Lake Barrington, 268 Ill. App. 3d 420, 423(1994). When the legislature creates a statutory right unknown atcommon law or equity, it may limit a court's jurisdiction over thesubject matter of the newly created right. Brzica, 268 Ill. App.3d at 422. The legislature may impose conditions precedent thatmust be satisfied before a court gains the power to act pursuant tothe statute. Brzica, 268 Ill. App. 3d at 423. These preconditionscannot be waived, and strict compliance with the statute isrequired. Brzica, 268 Ill. App. 3d at 423. When any requiredconditions precedent are not met, jurisdiction does not exist, andany act taken pursuant to the jurisdiction purportedly conferred bythe statute is void. Brzica, 268 Ill. App. 3d at 423. Void orders"can be attacked at any time, in any court, either directly orcollaterally, provided the party is properly before the court." Brzica, 268 Ill. App. 3d at 424. In annexation cases, it has longbeen held that a petition that fails to comply with the necessarystatutory requirements is insufficient to confer jurisdiction uponthe court reviewing the petition. People ex rel. Jordan Co. v.Village of Forest View, 21 Ill. 2d 384, 390 (1961).

Thus, in order to resolve the present matter, we mustdetermine whether the legislature intended contiguity to be ajurisdictional prerequisite to an annexation. For several reasons,we conclude that it did. We turn first to section 7--1--14 of theCode, which sets forth the procedures to be followed in a hearingupon a petition for annexation. 65 ILCS 5/7--1--4 (West 1998). This statute provides that the court reviewing the petition shallfirst determine whether any landowners on the perimeter of the areato be annexed object to the annexation and can be excluded. 65ILCS 5/7--1--4 (West 1998). Once this preliminary matter isaddressed, the statute states that "the only matter fordetermination shall be the validity of the annexation petition orordinance." (Emphasis added.) 65 ILCS 5/7--1--4 (West 1998). Thereafter, the court is directed that if it finds "(1) theannexation petition is not signed by the requisite number ofelectors or property owners of record; or (2) that the describedproperty is not contiguous to the annexing municipality; or (3)that the description is materially defective; or (4) that thepetition or ordinance, as the case may be, is otherwise invalid,the court shall dismiss the petition or ordinance." (Emphasisadded.) 65 ILCS 5/7--1--4 (West 1998). In interpreting a statute,its plain language is the best indication of the legislature'sintent. Premier Property Management, Inc. v. Chavez, 191 Ill. 2d101, 121 (2000). Words are to be given their ordinary meaningunless another meaning is indicated. Fort Dearborn Life InsuranceCo. v. Holcomb, 316 Ill. App. 3d 485, 492 (2000). In the presentstatute, the legislature spoke in terms of validity and invalidity. These terms suggest that a petition that does not meet the criteriaset forth in the statute (65 ILCS 5/7--1--4 (West 1998)) is withoutany legal force or effect. See Gonzales-Blanco v. Clayton, 120Ill. App. 3d 848, 850 (1983). In other words, any action basedupon a petition that is deficient with regard to these criteria isvoid ab initio. See Brzica, 268 Ill. App. 3d at 423 ("If, in fact,the petition does not satisfy all of the statutory jurisdictionalrequirements, then the petition may be declared invalid or void asthe court would not have had the authority to act").

In Brzica, this court considered whether the requirement thata petition be signed by a requisite number of property owners andelectors was a jurisdictional prerequisite to an annexation andconcluded that it was. Brzica, 268 Ill. App. 3d at 423. Thesignature requirement appears in the same sentence, quoted above,as the contiguity requirement. 65 ILCS 5/7--1--4 (West 1998). Given this close relationship, nothing warrants interpreting one asa factual matter and the other as jurisdictional matter. Cf. Moranv. Katsinas, 16 Ill. 2d 169, 174 (1959) (holding that the same wordappearing in different places in a statute should be given aconsistent meaning absent contrary intent of the legislature). Byincluding both requirements in the same portion of the statute(section 7--1--4), the legislature manifested its intent that bothwere to serve the same function.

An additional indication that the legislature intendedcontiguity to be a jurisdictional prerequisite appears in thestatute of limitations for challenging an annexation (65 ILCS 5/7--1--46 (West 1998)). Normally, void orders may be attacked at anytime. Brzica, 268 Ill. App. 3d at 424. However, the legislaturehas provided that a one-year limitations period applies inannexation cases:

"The limitation set forth in this section shall apply to anyannexation, even where the judge, body or officer annexing theterritory did not at the time of such annexation havejurisdiction of the subject matter, and irrespective ofwhether such annexation may otherwise be defective or void,except that the limitation of this Section shall not apply toannexations of territory which was not contiguous at the timeof annexation and is not contiguous at the time an action isbrought to contest such annexation." 65 ILCS 5/7--1--46 (West1998).

Again, in this section, contiguity is treated in the same portionof a statute that deals with jurisdictional matters. Moreover,that contiguity provides the only exception to the application ofthe statute of limitations indicates that the legislatureconsidered it a very basic defect.

Finally, we note that many reported cases have involvedcontiguity challenges to annexations brought in quo warrantoactions. See People ex rel. Village of Long Grove v. Village ofBuffalo Grove, 160 Ill. App. 3d 455 (1987); People ex rel. Villageof Hazel Crest v. Village of Homewood, 132 Ill. App. 3d 632 (1985);Kirby, 43 Ill. App. 3d 360; People ex rel. Bowman v. Village ofBensenville, 64 Ill. App. 3d 857 (1978); Hanrahan, 42 Ill. App. 3d825; People ex rel. Cherry Valley Fire Protection District v. Cityof Rockford, 120 Ill. App. 2d 275 (1970); People ex rel. CoojarRealty Corp. v. Village of Burr Ridge, 81 Ill. App. 2d 203 (1967);People ex rel. Village of South Barrington v. Village of HoffmanEstates, 30 Ill. 2d 385 (1964); Henderson, 38 Ill. App. 2d 9;People ex rel. Adamowski v. Village of Streamwood, 15 Ill. 2d 595(1959). It has long been established that, in a quo warrantoaction, a party may only raise the question of whether an action bya governmental body was performed without the proper jurisdictionor authority. Town of Richwoods, 80 Ill. App. 2d at 363; People exrel. Cash v. Wells, 291 Ill. 584, 586 (1920). Given this long-standing and well-established limitation on quo warranto actions,the above-cited cases implicitly recognize that a challenge basedon contiguity is a challenge to the authority through which anannexation is accomplished. While they do not expressly pass uponthe issue of whether the lack of contiguity is a jurisdictionaldefect, their very existence demonstrates that attacks like the onebrought by plaintiffs have long been accepted in Illinois. Inlight of this long history, absent some compelling justification,we will not now exclude contiguity challenges from the scope of thequo warranto action.

Accordingly, taking the language of various sections of theCode pertaining to annexations into account, as well as the historyof quo warranto proceedings and annexation challenges, we concludethat contiguity is a jurisdictional prerequisite, and its absencecan be raised in a quo warranto action.

Having determined that contiguity is jurisdictional, we maynow address the Village's arguments. The Village contends that the five-year limitations period contained in section 13--205 of theCode of Civil Procedure bars this action. 735 ILCS 5/13--205 (West1998). This limitation applies to all actions "not otherwiseprovided for." 735 ILCS 5/13--205 (West 1998). However, a voidjudgment may be attacked at any time. Brzica, 268 Ill. App. 3d at424. Thus, the Village's reliance on section 13--205 is misplaced. For the same reason, the Village's argument that plaintiffs havewaived the issue by failing to object during the annexationproceeding must be rejected. Because we have determined contiguityis a jurisdictional prerequisite, an objection based on the lack ofcontiguity cannot be waived. People ex rel. Brzica, 268 Ill. App.3d at 423.

The Village relies on People ex rel. Village of Lake Bluff v.City of North Chicago, 5 Ill. App. 3d 142 (1972), in support of theproposition that the lack of contiguity is not a jurisdictionaldefect. In that case, the court held that a challenge based oncontiguity was barred by the one-year statute of limitationscontained in 7--1--46 of the Cities and Villages Act (see Ill. Rev.Stat. 1969, ch. 24, par. 7--1--46 (now, as amended, 65 ILCS 5/7--1--46 (West 1998))). Village of Lake Bluff, 5 Ill. App. 3d at 147. At the time, jurisdictional defects were excluded from theoperation of the statute of limitations. See Ill. Rev. Stat. 1969,ch. 24, par 7--1--46. Thus, by finding the contiguity challengesbarred, the court necessarily found they were not jurisdictional. However, subsequent to that case, the statute was amended to applyto jurisdictional matters, although contiguity was specificallyexcluded from the limitations period. See 65 ILCS 5/7--1--46 (West1998). The decision in Village of Lake Bluff was based on astatute that has been amended in a manner relevant to the presentcase. Thus, it is of dubious precedential value here.

OPEN MEETINGS ACT

Plaintiffs also contend that the annexation of the Sanctuaryis invalid because the meeting of the Village board of trusteesthat adopted the annexation ordinance did not comport with the OpenMeetings Act (Act) (5 ILCS 120/1 et seq. (West 1998)). One of thetrustees who voted in favor of the annexation participated in themeeting by telephone. According to plaintiffs, this prevented thetrustee from fully participating in the meeting and also deniedplaintiffs the ability to fully express their views to thistrustee. Because of this alleged defect, plaintiffs ask us toinvalidate the annexation. Plaintiffs also assert that the Villagefailed to ratify this vote. According to plaintiffs, the Villagehas adopted Robert's Rules of Order, and these rules require theratification of any vote conducted by telephone. However,plaintiffs have provided no case law or statutory authority tosupport their contention that the violation of a municipal body'sinternal rules of procedure must be remedied by the invalidation ofany resulting actions, and it is thus waived. See Smagala v. Owen,307 Ill. App. 3d 213, 219 (1999).

Plaintiffs argue that the purpose of the Act is to "allow fullpublic participation" in meetings. However, the Act itself statesthat its purpose is to ensure that the actions of public bodies "betaken openly and that their deliberations be conducted openly." 5ILCS 120/1 (West 1998). No reasonable construction of the Act'sstatement of purpose confers a right upon the plaintiffs toparticipate in a public hearing. Rather, the Act's purpose issatisfied so long as meetings are not conducted in secrecy. Plaintiffs do not argue that they were unable to perceive what wastaking place in the meeting.

Only one case has considered the question of whethertelephonic participation in a meeting violates the Act. SeeFreedom Oil Co. v. Pollution Control Board, 275 Ill. App. 3d 508(1995). In finding no violation of the Act, the Freedom Oil courtnoted that "[t]here is nothing within the Open Meetings Act whichspecifically prohibits conducting a meeting by telephone conferenceor requires members of a public body to be in each other's physicalpresence to establish a quorum." Freedom Oil Co., 275 Ill. App. 3dat 515. We see no reason to conclude otherwise here. Plaintiffsattempt to distinguish Freedom Oil because the meeting in questionthere involved the correction of a clerical error in an order ofthe board. However, this is a distinction that the Act does notmake (see 5 ILCS 120/1 et seq. (West 1998)), and we do notinterpret the Act as applying with any less force because theaction taken at a meeting was relatively mundane.

Furthermore, relief under the Act is completely discretionary. 5 ILCS 120/3(c) (West 1998). Even where a meeting has been closedto the public, the actions taken at it are not necessarily void. Betts v. Department of Registration & Education, 103 Ill. App. 3d654, 663 (1981). De minimis violations of the Act have been heldnot to support nullification of actions taken at such meetings. See Chicago School Reform Board of Trustees v. Martin, 309 Ill.App. 3d 924, 936 (1999). Assuming arguendo, that telephonicparticipation in a meeting violates the Act in some way, plaintiffsfail to demonstrate why the extreme remedy of nullification isappropriate in the present case.

Therefore, we must reject plaintiffs' challenge to theannexation of the Sanctuary based upon the Open Meeting Act.

CONCLUSION

For the foregoing reasons, we affirm the order of the courtwith respect to the Village plaintiffs, reverse with regard toGottschalk, and remand this cause for further proceedings. Inpassing on these issues, we offer no opinion as to whether leave tofile a quo warranto complaint should be granted in this case. Aswe read the trial court's reasoned and articulate decision, itsdenial of plaintiffs' petition was based solely on the questions ofwhether plaintiffs have standing and whether contiguity isjurisdictional. However, in determining whether to grant leave tofile a quo warranto action, trial courts possess broad discretion. People ex rel. Nelson, 169 Ill. App. 3d at 871 ("The question ofwhether leave should be granted to file a complaint in quo warrantois a matter which lies within the sound discretion of the trialcourt, which may consider all surrounding circumstances andconditions, the motives of the petitioner in having the proceedinginstituted, and whether the public interest will be served bypermitting the action"). While the trial court did find lachesinapplicable, we do not read its decision as being based in any wayupon the discretion it possesses in these matters. In thisopinion, we conclude only that Gottschalk has standing and that thelack of contiguity is a jurisdictional defect that may be assertedin a quo warranto action.

Affirmed in part and reversed in part; cause remanded.

RAPP and CALLUM, JJ., concur.