I-57 & Curtis, LLC v. Urbana & Champaign Sanitary District

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Appellate Court Date: 2021.03.11
09:48:41 -06'00'
I-57 & Curtis, LLC v. Urbana & Champaign Sanitary District,
2020 IL App (4th) 190850
Appellate Court I-57 AND CURTIS, LLC, a Florida Limited Liability Company,
Caption Plaintiff-Appellant, v. THE URBANA AND CHAMPAIGN
SANITARY DISTRICT, an Illinois Special District; THE CITY OF
URBANA, an Illinois Body Politic and Corporate; THE CITY OF
CHAMPAIGN, an Illinois Body Politic and Corporate; THE
VILLAGE OF SAVOY, an Illinois Body Politic and Corporate; and
THE VILLAGE OF BONDVILLE, an Illinois Body Politic and
Corporate, Defendants-Appellees.
District & No. Fourth District
No. 4-19-0850
Filed August 26, 2020
Decision Under Appeal from the Circuit Court of Champaign County, No. 18-MR-
Review 867; the Hon. Jason Matthew Bohm, Judge, presiding.
Judgment Affirmed.
Counsel on Matthew R. Trapp and Jason E. Brokaw, of Giffin, Winning, Cohen &
Appeal Bodewes, P.C., of Springfield, and Kristina M. Swanson, of Wooden
McLaughlin LLP, of Indianapolis, Indiana, for appellant.
James A. Martinkus, of Erwin, Martinkus & Cole, Ltd., of Champaign,
for appellee Urbana and Champaign Sanitary District.
Thomas S. Yu and Frederick Stavins, of Champaign, for appellee City
of Champaign.
James D. Green, of Thomas Mamer LLP, of Champaign, for appellee
Village of Savoy.
Joseph P. Chamley and Amanda Riess, of Evans, Froehlich, Beth &
Chamley, of Champaign, for appellee Village of Bondville.
James L. Simon and Curt S. Borman, of Urbana, for appellee City of
Urbana.
Panel JUSTICE CAVANAGH delivered the judgment of the court, with
opinion.
Justices Knecht and Turner concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, I-57 and Curtis, LLC, a Florida limited liability company, brought this action
against the Urbana and Champaign Sanitary District (Sanitary District), the City of
Champaign, and other municipal defendants, seeking to invalidate an intergovernmental
contract and some related ordinances. The contract, to which the Sanitary District and the
municipal defendants are signatories, governs annexations of territory to the Sanitary District
and (by virtue of such annexations) new connections to the sewer lines of the Sanitary District.
Plaintiff considers itself to be wronged by the contract and related ordinances in essentially
two ways. First, as the contract and an implementing ordinance require, the board of trustees
of the Sanitary District (Board) will allow plaintiff to annex its land to the Sanitary District
and will allow plaintiff to connect to a sewer line of the Sanitary District only if plaintiff enters
into a municipal annexation agreement with the City of Champaign—which plaintiff is
unwilling to do because then the land would be subject to the City of Champaign’s zoning
regulations. Second, pursuant to an ordinance of its own, the City of Champaign will approve
the development of plaintiff’s land as a subdivision (which would require connection to the
sewer line of the Sanitary District) only if plaintiff enters into a municipal annexation
agreement with the City of Champaign.
¶2 Against this annexation leverage, the first amended complaint advances several legal
theories. Plaintiff claims that the intergovernmental contract is statutorily unauthorized, if not
positively forbidden by statutory law. Also, plaintiff claims that, by effectively stymieing the
development of plaintiff’s land, defendants have deprived plaintiff of a valuable property
interest without the due process of law. Finally, plaintiff claims that “coerced annexation”
violates plaintiff’s constitutional right to freely and voluntarily choose whether and how to
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participate in the electoral process of municipal annexation. On those theories, the first
amended complaint seeks declaratory relief, damages, attorney fees, and injunctive relief.
¶3 After answering the first amended complaint, defendants moved for a judgment on the
pleadings. See 735 ILCS 5/2-615(e) (West 2018). The circuit court of Champaign County
granted the motion. Plaintiff appeals.
¶4 We have reviewed de novo (see Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446, 455 (2010))
the uncontroverted well-pleaded facts in the first amended complaint (see Village of Worth v.
Hahn, 206 Ill. App. 3d 987, 990 (1990)), any fair and reasonable inferences that can be drawn
from those facts (see Wilson, 237 Ill. 2d at 455), the exhibits attached to the first amended
complaint (see State Farm Fire & Casualty Co. v. Young, 2012 IL App (1st) 103736, ¶ 11),
the matters subject to judicial notice (see M.A.K. v. Rush-Presbyterian-St.-Luke’s Medical
Center, 198 Ill. 2d 249, 255 (2001)), and the judicial admissions in the record (see id.). In our
review, we find no genuine issue of material fact, and we conclude that defendants are entitled
to a judgment as a matter of law. See Gillen v. State Farm Mutual Automobile Insurance Co.,
215 Ill. 2d 381, 385 (2005). Therefore, we affirm the judgment.
¶5 I. BACKGROUND
¶6 Boneyard Creek is about three miles long and runs through the cities of Champaign and
Urbana, Illinois, before flowing into the Saline Branch drainage ditch, north of downtown
Urbana. The creek drains the stormwater that runs off from Champaign and Urbana.
¶7 On January 31, 1949, the Sanitary District entered into an “indenture” (an archaic word for
a contract) in which the Sanitary District agreed to assume full responsibility for Boneyard
Creek. In re Saline Branch Drainage District, 172 Ill. App. 3d 574, 575 (1988). The parties to
this contract—let us call it “the Boneyard Indenture”—were the Sanitary District, the Saline
Branch Drainage District (Drainage District), the City of Urbana, and the City of Champaign.
Id. In the Boneyard Indenture, they “recognized the jurisdiction of the Sanitary District over
the Boneyard and its existing open tributaries, draining such lands, and over the rights-of-way,
improvements, drains[,] and drainage structures in the Boneyard.” Id.; see 70 ILCS 2405/7
(West 2018) (empowering the board of trustees of a sanitary district to “provide for the
drainage of such district by laying out, establishing, constructing[,] and maintaining one or
more channels *** for carrying off and disposing the drainage (including the sewage) of such
district”). The Sanitary District agreed to accept “ ‘full and complete responsibility for the
improvements and maintenance of the Boneyard and its existing open tributaries, and it
[agreed] to provide and keep in repair an adequate system of storm water drainage therein and
to correct any sanitary and unhealthful conditions existing therein.’ ” In re Saline, 172 Ill. App.
3d at 575. The Drainage District, for its part, agreed that lands lying within the boundaries of
both the Drainage District and the Sanitary District would be detached from the Drainage
District and would cease to be included in it. Id. at 576.
¶8 On March 16, 1992, the Sanitary District entered into another contract, this one titled
“Agreement re Boneyard Drainage District” (hereinafter, “Municipal Assumption
Agreement”). The contracting parties were the Sanitary District, the City of Champaign, and
the City of Urbana. In this contract, they acknowledged some persistent problems: pollutants
still were getting into Boneyard Creek, and the creek still was unable to handle all the
stormwater from Champaign and Urbana. Therefore, the City of Champaign and the City of
Urbana wanted to take over the management of these problems. To that end, the Sanitary
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District assigned to the City of Champaign and the City of Urbana all of its rights and powers
under the Boneyard Indenture, and the City of Champaign and the City of Urbana assumed all
of the duties of the Sanitary District under the Boneyard Indenture. Within their respective
geographical boundaries, the City of Champaign and the City of Urbana agreed to take over,
from the Sanitary District, full responsibility for the improvement and maintenance of
Boneyard Creek.
¶9 This municipal assumption of responsibility, however, was tied to another agreement,
which the Sanitary District executed at the same time:
“This [Municipal Assumption] Agreement is being executed concurrently with the
execution of a certain agreement entitled [‘]Agreement Concerning [S]anitary
[S]ewers[’] [(hereinafter, ‘Sewer Agreement’),] which is being executed by the City of
Champaign, City of Urbana, Village of Savoy, and [the] Sanitary District. If a court of
competent jurisdiction declares that the [Sewer] [A]greement ***, or any provision
therein, is invalid or otherwise unenforceable in whole or in part, or declares this
[Municipal Assumption] Agreement to be invalid or otherwise unenforceable in whole
or in part, the obligations of the Parties to this [Municipal Assumption] Agreement
shall forthwith cease and terminate at the date of the exhaustion of the last appeal from
such declaration of invalidity or unenforceability.”
(Later, the Village of Bondville joined in the Sewer Agreement.) Thus, if the Sewer Agreement
were toppled in judicial proceedings, the Municipal Assumption Agreement would go down
with it, and there would be a return to the status quo ante: the Sanitary District once again
would be saddled with its obligations in the Boneyard Indenture.
¶ 10 The contractually indispensable Sewer Agreement was executed on March 16, 1992.
Therein, the Sanitary District made the following promise (among others) to the City of
Champaign and the City of Urbana, referred to as the “Municipalities”:
“(b) New Sewer Connections. After the effective date of this [Sewer] Agreement,
the [Sanitary] District shall not allow any new sanitary sewer service connections to
Collector or Interceptor or District Approved Collector or Municipal Approved
Collector Sewers to serve properties outside of the Municipalities unless the property
to be served by such connection is the subject of a written annexation or development
agreement with the Municipality in whose Annexation Boundary Limits the land to be
served by the sewer lines, or the property is a lot within a legally recorded final plat
which plat has been approved by a Municipality prior to the effective date of this
Agreement.”
That paragraph uses some technical terms. A “collector sewer” carries wastewater from a
source to an “interceptor sewer,” a larger sewer line that in turn carries the wastewater to the
treatment plant. The term “Annexation Boundary Limits” means “the annexation boundaries
agreed to by and between the Municipalities.” Thus, the Sanitary District agreed as follows in
the Sewer Agreement. From March 16, 1992, onward, the Sanitary District would not allow
property outside the cities of Champaign or Urbana to connect to its collector or interceptor
sewers unless either of two conditions were met: (1) the property was the subject of a written
annexation agreement or development agreement with the municipality within whose
annexation boundary limits the property was located or (2) when the Sewer Agreement was
executed, the property already was a lot in a legally recorded final plat approved by the
municipality.
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¶ 11 On or about March 1, 2011, pursuant to section 11-12-6 of the Illinois Municipal Code (65
ILCS 5/11-12-6 (West 2010)), the City of Champaign adopted a comprehensive plan, the
“Champaign Tomorrow Comprehensive Plan.” Because of the City of Champaign’s adoption
of this comprehensive plan, section 11-12-5 of the Illinois Municipal Code (id. § 11-12-5)
allowed the City of Champaign to exercise subdivision control (not to be confused with zoning
control) over properties within one and a half miles outside its corporate boundaries, including
plaintiff’s property. The comprehensive plan contemplated the development of the area near
the I-57 and Curtis Road interchange, of which plaintiff’s property was a part.
¶ 12 In accordance with its comprehensive plan, the City of Champaign adopted subdivision
regulations, Chapter 31 of the City of Champaign’s municipal code (Champaign Municipal
Code § 31-101 et seq. (adopted Mar. 5, 2002)). Section 31-111 of the subdivision regulations
conditions subdivision plat approval on a municipal annexation agreement if the subdivision
would connect to the sewer system of the Sanitary District:
“A final plat shall not be approved where the approved engineering plans provide
for connection to any part of the sanitary sewer system of the City or the *** Sanitary
District, unless the land is within the City, or the owner of the subdivision has submitted
to the City a legally sufficient petition to annex, or the City and owner have executed
an Annexation Agreement.” Champaign Municipal Code § 31-111 (amended Oct. 7,
2003) (hereinafter Subdivision Ordinance).
In its first amended complaint, plaintiff observes that any plat of subdivision for the
development of plaintiff’s property necessarily would contemplate a connection to the sewer
system of the Sanitary District. Consequently, before approving any final plat related to the
property, the City of Champaign, pursuant to its Subdivision Ordinance, would require plaintiff
to sign an agreement to annex the property to the City of Champaign. Plaintiff further notes,
in the first amended complaint, that annexing the property to the City of Champaign would
cause a substitution in the governing zoning regulations: whereas plaintiff’s property now is
subject to the zoning regulations of Champaign County, the property would become subject to
the zoning regulations of the City of Champaign. (More precisely, we note, the execution and
adoption of a municipal annexation agreement would immediately subject the property to the
zoning regulations of the City of Champaign, regardless of whether the property ultimately
were annexed. See 65 ILCS 5/11-15.1-1, 11-15.1-2.1(a) (West 2018).)
¶ 13 On December 12, 2012, to further strengthen the tie between Sanitary District annexation
and municipal annexation, the Sanitary District adopted its own ordinance providing as
follows:
“The [Sanitary] District shall not allow any new sanitary sewer service connections
to Collector or Interceptor Sewers to serve properties outside the corporate limits of
one of the municipalities located within the [Sanitary] District, unless the property to
be served by such connection is the subject of a written Annexation, or Development
Agreement, with the Municipality in whose Annexation Boundary Limits the land to
be served by the sewer [lines], or the property is a lot within a legally-recorded final
Plat, which Plat had been approved by the Municipality prior to June 11, 1990.” Urbana
& Champaign Sanitary District Ordinance No. 678, § 210 (adopted Dec. 6, 2012)
(hereinafter Sanitary District Ordinance).
See also 70 ILCS 2405/4 (West 2010) (empowering the board of trustees of a sanitary district
to “pass all necessary ordinances *** for the proper management and conduct of the business
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of the board and the corporation, and for carrying into effect the objects for which the sanitary
district was formed”). Thus, both the City of Champaign and the Sanitary District have adopted
ordinances calculated to give their Sewer Agreement the force of law.
¶ 14 On June 19, 2018, Peter Creighton, plaintiff’s managing director, petitioned the Board of
the Sanitary District to annex to the Sanitary District the land in question: about 99.136 acres
at the northeast quadrant of Interstate 57 and Curtis Road, in unincorporated Champaign
County. See 70 ILCS 2405/23.4 (West 2018). Because the land was larger than 60 acres and
was not “wholly bounded” in the manner described by section 7-1-13 of the Illinois Municipal
Code (65 ILCS 5/7-1-13 (West 2018)), the land was ineligible for unilateral annexation to the
City of Champaign, that is, annexation by the City of Champaign without plaintiff’s consent.
But, notwithstanding the unfulfilled conditions of section 7-1-13, the land could be annexed to
the City of Champaign by agreement. See id. § 11-15.1-1.
¶ 15 The Sanitary District put plaintiff’s petition on the agenda for the board meeting scheduled
for July 5, 2018. In that meeting, the proposed annexation of plaintiff’s property to the Sanitary
District was discussed. It appears, however, from the minutes of the meeting, that the Board
neither approved nor denied plaintiff’s petition.
¶ 16 On July 18, 2018, the executive director of the Sanitary District, Rick Manner, sent an e-
mail to plaintiff’s engineer, Chris Billing, the vice president of Berns, Clancy and Associates,
P.C. In the e-mail, Manner advised Billing that the lack of annexation to the City of Champaign
prevented the property from being developed with sewer service provided by the Sanitary
District.
¶ 17 Later that same day, counsel for plaintiff, Patrick T. Fitzgerald, e-mailed counsel for the
Sanitary District, Mike McCormick, asking: “Is Peter Creighton’s entering into an annexation
agreement with the City of Champaign a condition precedent to his annexing to the [Sanitary
District], accessing sanitary sewer service[,] or both?” McCormick replied:
“Our concern is that Mr. Creighton understand and agree that no service can be
provided and no connection can be made until a development agreement or an
annexation agreement with the City is entered into. I don’t think there is a problem with
annexing so long as we are in agreement relating the property not being able to connect
until such an agreement with the City is established. I thought we might enter into a
very short annexation agreement memorializing this.”
¶ 18 Also on July 18, 2018, McCormick e-mailed Billing as follows:
“There is an outstanding issue regarding annexation into [the Sanitary District]. We
have been in contact with Mr. Creighton’s attorney, Pat Fitzgerald. We have been
waiting some feedback regarding Mr. Creighton’s willingness to annex into the City of
Champaign.
While Mr. Creighton has petitioned to annex into [the Sanitary District], my
understanding is that he has not made any arrangements to annex into the City of
Champaign. If [Berns, Clancy and Associates, P.C.,] has been involved in anything to
facilitate that annexation, please let us know[,] as that could restart the process for [the
Sanitary District’s] annexation.
As you are probably aware, the [Sewer] Agreement *** contains a prohibition of
[the Sanitary District’s] issuing connection permits or extending sewers without an
annexation or development agreement approved by the City. So[,] the lack of
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annexation into the City is a serious concern that would prevent development of the
site with sewers and thereby what is possible for the site.”
¶ 19 On August 30, 2018, Manner wrote a memorandum to the Board of the Sanitary District
regarding the petitioned-for annexation of the land to the Sanitary District. It was Manner’s
understanding that Creighton, “the property owner,” “was not at all interested in annexing into
the City of Champaign,” even though the Sewer Agreement “prevented [the Sanitary District]
from approving sewer extensions or connections to many unincorporated subdivisions.”
Manner had conferred with the Board’s counsel, McCormick, who had explained to Manner
that, although most annexations to the Sanitary District went forward without question, the
Board “still ha[d] a choice regarding annexations.” In McCormick’s opinion, the Board had
“complete freedom to either annex, or not, based upon what the Board fe[lt] [was] in the best
interest of the [Sanitary District].” For example, “the Board ha[d] the option to reject annexing
any parcel that [did not] already conform to the [Sewer] Agreement.” After talking with
McCormick, Manner had “confirmed with the Board that[,] if the [Sewer] Agreement’s
restrictions were somehow removed, *** there was general concurrence that staff should
intend to follow the [Sewer] Agreement’s restrictions, regardless of the legal standing of the
agreement itself.” In other words, even if, for whatever reason, the Sewer Agreement were not
legally binding on the Board, the Board was of the view that the Sewer Agreement was good
policy that still should be followed.
¶ 20 After informing the Board of Creighton’s objection to submitting the land to the
jurisdiction of the City of Champaign, Manner suggested that “[n]o action [was] required” of
the Board at this time. Instead, he passed along McCormick’s recommendation that the staff
negotiate a sewer annexation agreement with Creighton:
“With these unique facts surrounding this request, Mike McCormick feels it is
prudent to negotiate an Annexation Agreement for this parcel with the owner. The
Annexation Agreement will explicitly review the development restrictions in the
[Sewer] Agreement and obtain a commitment that the owner will annex into
Champaign before requesting sewer service from [the Sanitary District]. This will also
allow [the Sanitary District] staff to proceed with the annexation, giving everybody a
path forward to turn this into a normal development. Staff agrees with this approach.
***
There will be no need for action by the Board until a draft Annexation Agreement
is written and available for consideration—this will not occur until the October Board
Meeting or later.”
¶ 21 Afterward, the Sanitary District tendered to plaintiff a proposed annexation agreement
between plaintiff and the Sanitary District. Therein, plaintiff would agree, among other things,
“not to make an application to connect to sanitary sewer until an annexation agreement or
development agreement with the City of Champaign ha[d] been signed and approved.” Also,
in the proposed agreement, plaintiff would acknowledge that,
“pursuant to the [Sewer] Agreement, the Sanitary District shall not connect the Property
to sanitary sewer nor will the Sanitary District provide sanitary sewer services to the
Property until such time as Plaintiff has entered into an Annexation Agreement or a
Development Agreement with the City of Champaign as contemplated by the [Sewer]
Agreement.”
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(We quote here from the first amended complaint.)
¶ 22 According to the first amended complaint, “[p]laintiff negotiated in good faith to
voluntarily annex into the City of Champaign for two years, despite that [p]laintiff [was] not
required by law to do so.” But “[t]he City of Champaign unilaterally ended the negotiations
with [p]laintiff, thereby eliminating [p]laintiff’s ability to voluntarily annex into the City of
Champaign.”
¶ 23 To substantiate that allegation, plaintiff has attached to the first amended complaint an e-
mail of January 10, 2018, from Robert Kowalski, the assistant director of the Planning and
Development Department of the City of Champaign, to Fitzgerald and Creighton. The e-mail
from Kowalski reads as follows: “I should have added in my previous emails that it is the
consensus of our Staff that this draft agreement is as far as Staff can go in supporting flexibility
from existing regulations/practices—especially as it pertains to access and zoning. We can
support processing this agreement but cannot support further negotiating the terms. Thank
you.” (The draft agreement to which Kowalski refers does not appear to be attached to, or
substantively described in, the first amended complaint. Apparently, it was a proposed
agreement drafted by the City of Champaign, as distinct from the proposed agreement drafted
by the Sanitary District. That is to say, there was a proposed municipal annexation agreement,
as well as a proposed agreement for annexation to the Sanitary District.) Plaintiff alleges:
“Since the January 10, 2018[,] e[-]mail, no further negotiations between [p]laintiff and the City
of Champaign have taken place.”
¶ 24 Not only that, but “[t]he Sanitary District refused to take further action on [p]laintiff’s
request for annexation into the Sanitary District without [p]laintiff[’s] entering into an
agreement with the City of Champaign.” It seems, then, that plaintiff and the City of
Champaign are at an impasse—and that plaintiff and the Sanitary District, therefore, are at an
impasse.
¶ 25 By this litigation, plaintiff seeks to break the impasse. Count I of the first amended
complaint seeks a declaratory judgment against defendants that the Sewer Agreement is
“invalid and unenforceable insofar as it prohibits any new connection prior to an annexation,
an annexation agreement, or a development agreement with a municipality.”
¶ 26 Count II seeks a declaratory judgment against two of the defendants, the City of Champaign
and the Sanitary District, that the Sewer Agreement is, to repeat the language from count I,
“invalid and unenforceable insofar as it prohibits any new connection prior to annexation, an
annexation agreement, or a development agreement with a municipality.”
¶ 27 Count III seeks a declaratory judgment against the Sanitary District that the Sanitary
District Ordinance “is invalid and unenforceable insofar as it conflicts with the Sanitary
District Act of 1917 [(Sanitary Act) (70 ILCS 2405/0.1 et seq. (West 2018))] and constitutes
an unauthorized transfer of the Sanitary District’s power to select who can connect to the
Sanitary District’s sewers to the City of Champaign because it prohibits any new connection
prior to annexation, an annexation agreement, or a development agreement with a
municipality.”
¶ 28 Count IV seeks a declaratory judgment against the City of Champaign that “the Subdivision
Ordinance [is] invalid and unenforceable in so far as it requires annexation, an annexation
agreement, or a development agreement with a municipality prior to final plat approval of any
plat where the approved engineering plans provide for connection to any part of the sanitary
sewer system of the City of Champaign or the Sanitary District.”
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¶ 29 Count V seeks a declaratory judgment against the City of Champaign and the Sanitary
District that the Sewer Agreement, the Sanitary District Ordinance, and the Subdivision
Ordinance are “invalid and unenforceable in so far as they, individually and collectively,
improperly coerce [p]laintiff to annex into the City of Champaign or enter into an annexation
or a development agreement with the City of Champaign in order to receive sanitary service.”
¶ 30 On a theory of “substantive due process,” count VI seeks from the City of Champaign and
the Sanitary District compensatory damages, punitive damages, and attorney fees. Also, this
count seeks “an order permanently enjoining the [d]efendants from requiring annexation, an
annexation agreement or final plat approval which is contingent on annexation prior to
approval of connection to the Sanitary District’s sewers.”
¶ 31 Count VII seeks “an order permanently enjoining [d]efendants from conditioning any
sewer connection with the Sanitary District, including those tributary to the Sanitary District,
upon annexation, an annexation agreement[,] or development agreement with the City of
Champaign or the other municipal [d]efendants, and for such other relief as the court deems
appropriate.”
¶ 32 II. ANALYSIS
¶ 33 A. The Power of the Contracting Parties to Enter Into the Sewer Agreement
¶ 34 Plaintiff claims that the Sewer Agreement is illegal under section 3 of the
Intergovernmental Cooperation Act (5 ILCS 220/3 (West 2018)), which provides as follows:
“Any power or powers, privileges, functions, or authority exercised or which may be exercised
by a public agency of this State may be exercised, combined, transferred, and enjoyed jointly
with any other public agency of this State *** except where specifically and expressly
prohibited by law.” By plaintiff’s reasoning, because the Sewer Agreement prohibits any new
sewer connection permits for unincorporated land prior to the forging of an annexation
agreement between the landowner and the municipality, the Sewer Agreement effectively
transfers to the municipality the power to rule on petitions for annexation to the Sanitary
District—a power that section 23.4 of the Sanitary Act (70 ILCS 2405/23.4 (West 2018))
bestows only upon the Board of the Sanitary District. Such a transfer of power, plaintiff argues,
is unauthorized by section 3 of the Intergovernmental Cooperation Act, which allows power
to be transferred from one unit of local government to another only on condition that the
transfer is not “specifically and expressly prohibited by law.” 5 ILCS 220/3 (West 2018).
¶ 35 Contrary to plaintiff’s contention, the Sewer Agreement transfers no power from the
Sanitary District to the City of Champaign. The Board of the Sanitary District retains its
statutory power to approve or deny plaintiff’s petition for the annexation of territory to the
Sanitary District. See 70 ILCS 2405/23.4 (West 2018). The City of Champaign cannot exercise
that power.
¶ 36 Granted, the Sewer Agreement contractually bars the Board from approving plaintiff’s
petition unless plaintiff and the City of Champaign agree to the annexation of plaintiff’s land
to the City of Champaign. It takes two, however, to make such an agreement—the City of
Champaign and plaintiff—and plaintiff can stymie the contractual negotiations just as the City
of Champaign can. And yet plaintiff does not contend that the Board has transferred its power
to plaintiff. The Board has transferred its power to no one. By making its decision partly
contingent on the contractual negotiations between plaintiff and the City of Champaign, the
Board has not relinquished its power under section 23.4 (id.) to vote aye or nay on plaintiff’s
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petition. Regardless of the reasons or constraints that will drive the voting, it still will be the
Board that votes, not the City of Champaign. And even if plaintiff and the City of Champaign
succeed in concluding a municipal annexation agreement, the Board may nevertheless deny
plaintiff’s petition for other reasons. The Board retains its power under section 23.4. No one
but the Board members will vote on plaintiff’s petition.
¶ 37 This is not to deny that the Sanitary District and the City of Champaign have entered into
an intergovernmental contract that can force the Board’s hand when it considers a petition for
annexation to the Sanitary District. See 5 ILCS 220/5 (West 2018) (intergovernmental
contracts). But a forcing of the hand is what contracts are all about. See Polytechnical
Consultants v. Lind Plastic Products, Inc., 82 Ill. App. 3d 472, 474 (1980) (defining a contract
as “an agreement between competent parties, based upon sufficient consideration, to do or to
refrain from doing a particular thing [citation], for the breach of which the law gives a
remedy”). Through an intergovernmental contract, one unit of local government, A, can bind
another unit of local government, B, to exercise B’s statutory power in a certain way even
though A itself lacks the statutory power that B binds itself to exercise in a certain way. For an
illustration of this truth, we need look no further than a case that plaintiff cites, Rajterowski v.
City of Sycamore, 405 Ill. App. 3d 1086 (2010).
¶ 38 Here are the facts in Rajterowski. A referendum was passed authorizing the City of
Sycamore, Illinois, a home rule municipality, to impose a tax on real property transferred
within its municipal boundaries. Id. at 1090. Accordingly, the city adopted an ordinance
establishing the transfer tax. Id. The purpose of the ordinance was to create a new source of
funding for Sycamore Community Unit School District No. 427. Id. An intergovernmental
contract between the city and the school district described how the transfer-tax revenues, minus
the city’s administrative expenses, would be calculated and provided to the school district. Id.
¶ 39 The plaintiffs in Rajterowski were home buyers in the city who had incurred the transfer
tax. Id. at 1091. Count V of their complaint challenged the school district’s authority to enter
into an intergovernmental contract whereby the city would collect a transfer tax and give the
tax revenues to the school district. Id. at 1118. In support of their claim that the circuit court
had erred by dismissing count V as legally insufficient (see id. at 1091), the plaintiffs made the
following argument to the appellate court. Under section 17-2 of the School Code (105 ILCS
5/17-2 (West 2008)), the school district had authority to levy only ad valorem (translated as
“according to value”) taxes on real property. Rajterowski, 405 Ill. App. 3d at 1118. Therefore,
the plaintiffs argued, the school district, a non-home-rule entity, lacked the statutory authority
to impose a transfer tax, either directly or through the city, or to receive transfer tax revenues
from the city. Id. at 1119.
¶ 40 Much like plaintiffs in the present case, the plaintiffs in Rajterowski sprinkled their
argument with citations to Attorney General opinions to the effect that “non-home-rule entities
may not, by entering into intergovernmental agreements, circumvent statutory requirements or
limitations.” Id. Or, as one Attorney General opinion put it: “ ‘[T]he Intergovernmental
Cooperation section of the Constitution [(Ill. Const. 1970, art. VII, § 10)] and its statutory
counterpart, the Intergovernmental Cooperation Act [(5 ILCS 220/1 et seq. (West 2004))], are
not grants of authority to undertake jointly functions that the cooperating entities cannot
undertake individually.’ ” Id. (quoting 2005 Ill. Att’y Gen. Op. No. 05-010, https://
illinoisattorneygeneral.gov/opinions/2005/05-010.pdf [https://perma.cc/M39P-X2GP]).
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¶ 41 The appellate court found the Attorney General opinions to be well reasoned (id. at 1120)
but inapposite (see id. at 1123). While it was true that the school district lacked authority to
impose a transfer tax, it was the city and not the school district that imposed the transfer tax—
and it was undisputed that the city could impose a transfer tax. See id. Thus, no statutory
limitation was circumvented. See id. The city, as opposed to the school district, had the
constitutional and statutory authority to impose the transfer tax. Id. at 1092-93. And none of
the School Code provisions upon which the plaintiffs relied forbade a school district to receive
transfer tax revenues from the city. Id. at 1123.
¶ 42 Likewise, in the present case, plaintiffs fail to identify any statutory requirement or
limitation that the Sewer Agreement circumvents. Specifically, plaintiffs fail to identify any
power the contracting parties are expected to exercise under the Sewer Agreement that they
would lack the authority to exercise apart from the Sewer Agreement. This point is driven
home by the consensus of the Board of the Sanitary District that the Sewer Agreement should
continue to be followed even if it were judicially invalidated. The Board of the Sanitary District
has the statutory power to approve or deny petitions for annexation to the Sanitary District,
and the Board, freely and on its own initiative, can make the presence or absence of a municipal
annexation agreement the deciding factor. See 70 ILCS 2405/23.4 (West 2018). “Any ***
powers, *** functions, or authority *** which may be exercised by a public agency of this
State may be exercised, combined, *** and enjoyed jointly with any other public agency of
this State *** except where specifically and expressly prohibited by law.” 5 ILCS 220/3 (West
2018); see also Ill. Const. 1970, art. VII, § 10(a) (providing that “[u]nits of local government
*** may contract *** among themselves *** to exercise *** any power or function, in any
manner not prohibited by law or by ordinance”). We are unaware of any law “specifically and
expressly prohibit[ing]” the Board of the Sanitary District from conditioning its approval of a
petition for annexation to the Sanitary District upon the petitioner’s entering into a municipal
annexation agreement, as the Sewer Agreement requires. 5 ILCS 220/3 (West 2018). The
Board will exercise its statutory power in a certain way, as it agreed to do in its
intergovernmental contract with the City of Champaign and the City of Urbana, just as
Sycamore exercised its statutory power in a certain way, as it agreed to do in its
intergovernmental contract with the school district. That does not mean that the City of
Champaign itself will vote on plaintiff’s petition for annexation to the Sanitary District any
more than the school district itself imposed the transfer tax. Therefore, on the authority of
Rajterowski, 405 Ill. App. 3d at 1123, we reject plaintiff’s challenge to the validity of the Sewer
Agreement.
¶ 43 B. The Board’s Power to Require Plaintiff to Enter Into an
Annexation Agreement With the City of Champaign as a Condition of
Granting Plaintiff’s Petition for Annexation to the Sanitary District
¶ 44 The Sanitary District, plaintiff observes, is not a home rule unit of government. See Ill.
Const. 1970, art. VII, § 6. Therefore, the Sanitary District “may exercise only those powers
granted to [it] by the constitution or by statute, together with such implied powers as are
essential, not merely convenient, to carry out their express powers.” Rajterowski, 405 Ill. App.
3d at 1121. Special districts, such as the Sanitary District, “are creations of the legislature ***
and their powers are not to be enlarged by construction.” (Internal quotation marks omitted.)
Baker v. Forest Preserve District of Cook County, 2015 IL App (1st) 141157, ¶ 39. Plaintiff
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asserts that the Sanitary District lacks “express authority anywhere in its enacting statutes to
withhold services based upon the jurisdiction, whether county or municipal, of the property to
be served.”
¶ 45 We disagree. The express authority is in section 17 of the Sanitary Act, which provides as
follows: “Any district formed hereunder shall have the right to permit territory lying outside
its limits *** to drain into and use any channel or drain made by it, upon such *** terms and
conditions as may be mutually agreed upon ***.” (Emphasis added.) 70 ILCS 2405/17 (West
2018). Section 17 places no limits upon the terms or conditions for connection to the sanitary
district.
¶ 46 Nor does section 23.4 of the Sanitary Act prescribe or limit any conditions on the denial of
a petition for annexation to the Sanitary District:
Ҥ 23.4. Any territory which is not within the corporate limits of any sanitary
district but which is contiguous to a sanitary district and which territory has no electors
residing therein; or any such territory with electors residing thereon; may be annexed
to the sanitary district in the following manner: a written petition signed by the owners
of record of all land within such territory, or if such territory is occupied, by the owners
of record and by all electors residing thereon, shall be filed with the clerk of the sanitary
district, which petition shall request annexation and shall state that no electors reside
thereon (or that all such electors residing thereon join in the petition, whichever shall
be the case) and shall be under oath. The board of trustees of the sanitary district to
which annexation is sought shall then consider the question of the annexation of the
described territory. A two-thirds vote of the board of trustees is required to annex. A
copy of the ordinance annexing the territory together with an accurate map of the
annexed territory, certified as correct by the Clerk of the District, shall be filed with the
County Clerk of the county in which the annexed territory is located.” Id. § 23.4.
¶ 47 Thus, section 23.4 specifies conditions in which territory may be annexed to the sanitary
district, as follows: the territory is contiguous to the sanitary district and a sworn petition for
annexation signed by all the owners of the territory and the resident electors, if any, has been
filed with the clerk of the sanitary district. Id. Other than those minimal conditions for
considering the question of annexing the territory to the sanitary district, section 23.4 leaves
the discretion of the board of trustees untrammeled. See Krautsack v. Anderson, 223 Ill. 2d
541, 554 (2006) (remarking that “the word ‘may’ ordinarily connotes discretion”). (At some
places in the record, there is a discussion of annexation to the Sanitary District, and at other
places in the record, there is a discussion of being allowed to connect to the sewer. By our
understanding, annexation to the Sanitary District is a precondition of being allowed to connect
to the interceptor sewer of the Sanitary District. Even after annexation, the landowner still must
meet the technical requirements for connection, whereupon the landowner is issued a
connection permit.) Section 23.4 has nothing to say about when the Board must approve a
petition for annexation to the Sanitary District and when the Board must deny the petition. It
is entirely up to the Board—which, therefore, may rationally decide that a certain class of
petitions should be, in the best interest of the public, denied. Once the conditions for
consideration of the petition are met, there are no statutory curbs on the Board’s discretion.
See 70 ILCS 2405/23.4 (West 2018). From that point on, the text of section 23.4 is wide open.
¶ 48 A case that plaintiff cites reminds us that “[a] court may not add provisions that are not
found in a statute, nor may it depart from a statute’s plain language by reading into the
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law exceptions, limitations, or conditions that the legislature did not express.” (Internal
quotation marks omitted.) Baker, 2015 IL App (1st) 141157, ¶ 39. Section 23.4 places no
exception, limitation, or condition on the power of the board of trustees to deny a petition for
annexation to the sanitary district. Nowhere does section 23.4 say that the Board is forbidden
to deny the petition on the ground that the territory is outside the boundaries of a municipality.
Instead, once the minimal conditions in section 23.4 are met, that section gives the Board the
absolute discretion to approve or deny a petition for annexation to the sanitary district—for
any reason that seems fitting to the Board. See 70 ILCS 2405/23.4 (West 2018).
¶ 49 Looking beyond section 23.4, we find no statutory provision that limits or qualifies this
absolute discretion. Section 7-1-13 of the Illinois Municipal Code (65 ILCS 5/7-1-13 (West
2018)) does not do so. Essentially, all that section says is that unincorporated territory
containing 60 acres or less that is “wholly bounded” as described in that section “may be
annexed by any municipality by which it is bounded in whole or in part, by the passage of an
ordinance to that effect after notice is given.” (Emphasis added.) Id. Section 7-1-13 has nothing
to say, however, about annexing territory to a sanitary district. See id.
¶ 50 In sum, then, we reject plaintiff’s claim that the Board of the Sanitary District lacks
statutory power to condition the approval of plaintiff’s petition for annexation to the Sanitary
District on plaintiff’s entering into a municipal annexation agreement with the City of
Champaign. Once the prerequisites for consideration are met, section 23.4 gives the Board the
unqualified discretionary power to approve or deny plaintiff’s petition.
¶ 51 Plaintiff might think that the Sewer Agreement is unfairly coercive to developers and ill-
advised as public policy. But the reason for denying a petition is not to be confused with the
power to deny the petition. “[T]he power to decide carries with it the power to decide wrong[ly]
as well as to decide right[ly].” (Internal quotation marks omitted.) Steinbrecher v.
Steinbrecher, 197 Ill. 2d 514, 532 (2001). In its open-ended statutory discretion (see 70 ILCS
2405/23.4 (West 2018)), the Board of the Sanitary District has the power to refuse the
annexation of unincorporated territory to the Sanitary District unless the territory is the subject
of an annexation agreement with the City of Urbana or the City of Champaign.
¶ 52 C. An Alleged Subterfuge or Circumvention of Section 7-1-13
¶ 53 Plaintiff contends that, by “[b]locking access to the Sanitary District sewer unless the
[p]laintiff annexes the [p]roperty into the City of Champaign,” defendants perpetrate “a mere
subterfuge to allow the City of Champaign to force annexation” in circumvention of section 7-
1-13 of the Illinois Municipal Code (65 ILCS 5/7-1-13 (West 2018)). Plaintiff quotes from
Chicago Title Land Trust Co. v. County of Will, 2018 IL App (3d) 160713, ¶ 34: “[C]ourts
have scrutinized the sometimes creative attempts of municipalities to annex property,
particularly where th[o]se attempts are merely a subterfuge to reach outlying areas.” (Internal
quotation marks omitted.)
¶ 54 A “subterfuge,” though, is a “deception by artifice or stratagem in order to conceal, escape,
or evade.” Merriam-Webster Online Dictionary, https://www.merriam-webster.com/
dictionary/subterfuge (last visited Aug. 18, 2020) [https://perma.cc/XD9M-UN7Z]. We do not
see how the present case involved any deception. In their correspondence with plaintiff, the
City of Champaign and the Sanitary District never gave any reasons that were pretextual.
Annexation (or connection) to the Sanitary District was stalled because of the lack of a
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municipal annexation agreement. Subdivision approval was stalled for the same reason. There
was no different reason that the stated reason concealed.
¶ 55 By contrast, in Chicago Title, 2018 IL App (3d) 160713, ¶ 42, the appellate court found
deception. The village in that case talked Commonwealth Edison (ComEd) into voluntarily
annexing its land to the village so that other properties would become contiguous to the village,
thereby enabling the village to annex those other properties unilaterally. Id. ¶¶ 6-7. The
majority in Chicago Title found some “unusual” and “curious” features in the annexation
agreement between the village and ComEd. Id. ¶ 39. The village promised, for example, not to
tax ComEd and not to enforce its zoning requirements and other regulations against ComEd.
Id. Also, the village promised to allow ComEd to disconnect from the village within one year
or even within six months if the annexation of the other property fell through. Id. The majority
concluded that the voluntary annexation of ComEd’s property was “a sham transaction,” a
trick, and a counterfeit transaction that was practically devoid of substance. Id. ¶ 42. It was a
subterfuge having no purpose other than to enable the village to reach the other property. Id.
Consequently, the majority in Chicago Title chose to “ignore this sham transaction and
conclude[d] that the [other] property was not ‘wholly bounded’ by one more or more
municipalities, as required by section 7-1-13 of the [Illinois] Municipal Code [(65 ILCS 5/7-
1-13 (West 2016))].” Id. It followed that the village lacked statutory authority to unilaterally
annex the other property, or so the majority held. Id.
¶ 56 Justice Holdridge dissented. He argued that, in assessing the validity of an annexation, the
reviewing court’s sole concern should be whether the procedures in the Illinois Municipal Code
were followed. Id. ¶ 52 (Holdridge, J., dissenting). If the landowner submitted to the
annexation knowingly and voluntarily, it was, in Justice Holdridge’s view, “of no legal
significance” that the municipality had “instigated or encouraged” the landowner to submit to
the annexation. Id. ¶ 55. The promises the village had made in the annexation agreement with
ComEd were explicitly authorized by statutory law. Id. ¶ 56. Far from engaging in “trickery,
manipulation, fraud, concealment, or subterfuge,” the village had “acted transparently and
[had] complied with all applicable statutory requirements.” Id. ¶ 58.
¶ 57 Assuming that the majority in Chicago Title was right—assuming that the village in that
case had engaged in deception or subterfuge to circumvent section 7-1-13 of the Illinois
Municipal Code—the present case is different. We see no subterfuge by the Sanitary District
and the City of Champaign to circumvent section 7-1-13 (65 ILCS 5/7-1-13 (West 2018)).
Notwithstanding the requirements that section 7-1-13 imposes for unilateral annexation, any
“land in unincorporated territory,” contiguous or not, can be the subject of an annexation
agreement between the record owners of the land and a municipality. Id. § 11-15.1-1. Using
section 11-15.1-1 is not a circumvention of section 7-1-13.
¶ 58 Plaintiff argues, however, that, if plaintiff entered into a municipal annexation agreement
with the City of Champaign on pain of being denied access to the sewer system of the Sanitary
District—access that would be indispensable to developing the property—the annexation
agreement would not be truly voluntary. Instead, the annexation would be, in plaintiff’s view,
a “force[d] annexation of the [p]roperty in violation of [section] 7-1-13.” But if a landowner
and a municipality proceed under section 11-15.1-1, section 7-1-13 is inapplicable. Being
inapplicable, section 7-1-13 could not be circumvented. And as for section 11-15.1-1, it has
nothing to say about “forced annexations.”
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¶ 59 Again, we must not “depart from a statute’s plain language by reading into [it] exceptions,
limitations, or conditions” that lack a basis in the statutory text. (Internal quotation marks
omitted.) Baker, 2015 IL App (1st) 141157, ¶ 39. Section 11-15.1-1 provides that “[t]he
corporate authorities of any municipality may enter into an annexation agreement with one or
more of the owners of record of land in unincorporated territory”—period. 65 ILCS 5/11-15.1-
1 (West 2018). The statute does not condition that authority on the agreement’s being
unmotivated by economic incentives or annexation leverage. As Justice Holdridge notes in his
dissent in Chicago Title, “[t]he intentions of the parties to an annexation agreement (i.e., a
municipality’s reasons for encouraging the annexation and a landowner’s reasons for filing an
annexation petition) are legally irrelevant.” (Emphasis in original.) Chicago Title, 2018 IL
App (3d) 160713, ¶ 55 (Holdridge, J., dissenting). He is right.
¶ 60 To be sure, in a case on which plaintiff relies, Austin Bank of Chicago v. Village of
Barrington Hills, 396 Ill. App. 3d 1 (2009), the courts took account of the municipality’s reason
for retaining two narrow strips of land on its eastern boundary when granting a disconnection.
The true reason—an impermissible one, the appellate court agreed—was to prevent a further
disconnection of territory. But the disconnection statute, section 7-3-6 of the Illinois Municipal
Code (65 ILCS 5/7-3-6 (West 2006)) drove the analysis in Austin Bank, whereas the present
case has nothing to do with the disconnection statute.
¶ 61 In Austin Bank, there were two petitions for the disconnection of territory from the village:
an initial petition to disconnect 45 acres and a subsequent petition to disconnect 145 acres. In
the first petition, a developer petitioned for the disconnection of a 45-acre parcel from the
village. Austin Bank, 396 Ill. App. 3d at 2. The village granted the requested disconnection by
passing an ordinance—except that the ordinance retained, within the village’s jurisdiction, two
narrow “ ‘barrier parcels,’ ” as the parties to the litigation called them. Id. In the circuit court,
the village insisted that its reason for retaining these two strips of land was stormwater
management. Id. at 4. The circuit court was unconvinced. It found that the real reason why the
village had retained the barrier parcels was to prevent a disconnection of a 145-acre tract farther
to the west, beyond the barrier parcels. Id. at 6. Under the disconnection statute, disconnection
of territory was impermissible if it would cause one part of the municipality to become isolated
from another part of the municipality. See 65 ILCS 5/7-3-6(3) (West 2006). Thanks to the
village’s retention of the barrier parcels, disconnection of the 145 acres farther to the west
would have been, under the black-and-white terms of section 7-3-6(3), impermissible because
such a disconnection would have left the barrier parcels isolated from the rest of the village.
¶ 62 Even so, a bank petitioned for the disconnection of the 145 acres, characterizing the
village’s decision to retain jurisdiction over the barrier parcels as “ ‘arbitrary, capricious, and
a sham.’ ” Austin Bank, 396 Ill. App. 3d at 5. The circuit court agreed with that
characterization: the retention of the barrier parcels was “ ‘a sham or subterfuge’ ” by the
village to prevent the disconnection of the 145 acres to the west. Id. at 6. Therefore, declining
to recognize the barrier parcels, the circuit court granted the bank’s petition to disconnect the
145 acres. Id. The village appealed. Id.
¶ 63 The appellate court acknowledged that “disconnection of the subject property would isolate
the barrier parcels.” Id. at 9. The disconnection statute clearly stipulated that disconnecting
territory from a municipality was allowed only if the disconnection would “not result in the
isolation of any part of the municipality from the remainder of the municipality.” 65 ILCS 5/7-
3-6(3) (West 2006). Nevertheless, the appellate court reasoned, if “a literal interpretation of a
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particular clause would defeat the [legislature’s] obvious intent” and inflict a “great injustice”
that the legislature could not possibly have contemplated, the statute should not be interpreted
(or applied) according to its literal terms. (Internal quotation marks omitted.) Austin Bank, 396
Ill. App. 3d at 9. “The legislature intended section 7-3-6 to liberally permit disconnection
absent a hardship or impairment to the municipality.” (Internal quotation marks omitted.) Id.
The appellate court deferred to the circuit court’s factual finding that “the isolation of the
barrier parcels was the result of a legal gimmick by the [v]illage to improperly defeat [the
bank’s] disconnection petition.” Id. at 14. Countenancing such a gimmick would have been
inconsistent with a liberal construction of section 7-3-6. See id. at 9-10. Not only that, but the
village was unable to show any hardship or impairment that would result from the
disconnection of the 145 acres. Id. at 13. Therefore, the appellate court affirmed the circuit
court’s judgment in the bank’s favor. Id. at 14.
¶ 64 For two reasons, we are unconvinced that Austin Bank would justify a reversal of the circuit
court’s judgment in the present case.
¶ 65 First, whereas the village in Austin Bank had engaged in a sham or subterfuge, defendants
in the present case are innocent of any such wrongdoing. As far as we can see, they have never
misrepresented their reasons or intentions. They have been up front about their objectives.
Plaintiff argues in its brief: “The City of Champaign expressly acknowledges that it desires to
zone and tax the Property, and Sanitary District services will be withheld to further that
objective. [Citation.] This is a transparent and unlawful attempt to conduct an end run around
the prohibition on extraterritorial zoning ***.” Thus, the City of Champaign expressly and
transparently acknowledges its objectives of zoning and taxing plaintiff’s land. Also, the City
of Champaign expressly and transparently acknowledges its use of the annexation leverage in
its Subdivision Ordinance to achieve those objectives. Whatever criticisms could be leveled
against the City of Champaign, pretense or deceit would not be among them.
¶ 66 Second, in Austin Bank, the appellate court rejected a “ ‘black-and-white’ or literal
interpretation of the statute.” Id. at 9. We agree that, sometimes, following the literal terms of
a statute would frustrate the legislative intent that is evident in the statute. But courts must be
very careful about departing from the unambiguous language of a statute in the name of
avoiding “injustice,” “absurdity,” or supposed offenses against “common sense.” That sort of
logic is perilous. It can easily turn into a rationalization for a judicial rewriting of the statute:
“[T]o maintain the separation of the legislative and judicial branches and avoid
compromising our fidelity to the text, we should be extremely reluctant to second-guess
the clear language of legislation ***. [Citation.] Whenever a court disregards the clear
language of legislation in the name of ‘avoiding absurdity,’ it runs the risk of
implementing its own notions of optimal public policy and effectively becoming a
legislature. Interpreting legislation to mean something other than what it clearly says is
a measure of last resort, to avoid ‘great injustice’ or an outcome that could be
characterized, without exaggeration, as an absurdity and an utter frustration of the
apparent purpose of the legislation. [Citation.]” (Internal quotation marks omitted.)
Illinois State Treasurer v. Illinois Workers’ Compensation Comm’n, 2015 IL 117418,
¶ 39.
¶ 67 We see no compelling reason to depart from the plain terms of the governing statutes in
this case. We decline to effectively rewrite the statutes by inserting exceptions, conditions, or
limitations that lack any basis in the statutory text. See Home Star Bank & Financial Services
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v. Emergency Care & Health Organization, Ltd., 2014 IL 115526, ¶ 24. Under section 23.4 of
the Sanitary Act (70 ILCS 2405/23.4 (West 2018)), the Board of the Sanitary District has the
discretionary power to approve or deny a legally sufficient petition for annexation of territory
to the Sanitary District. Section 23.4 places no limits on that discretion. Under section 3 of the
Intergovernmental Cooperation Act (5 ILCS 220/3 (West 2018)), the Sanitary District may
agree to exercise its power “jointly”—that is, collaboratively or cooperatively—with the City
of Champaign by approving annexations to the Sanitary District only on the condition that the
owner of the territory to be annexed enters into a municipal annexation agreement with the
City of Champaign. Such coordination or cooperation between the Sanitary District and the
City of Champaign is allowable, section 3 says, “except where specifically and expressly
prohibited by law.” Id. We are unaware of any law “specifically and expressly prohibit[ing]”
the Board of the Sanitary District from conditioning its approval of a petition for annexation
to the Sanitary District upon the petitioner’s entering into a municipal annexation agreement,
as the Sewer Agreement requires. Id. Nowhere does the Illinois Municipal Code specifically
prohibit such an intergovernmental contract. Section 11-15.1-1 (65 ILCS 5/11-15.1-1 (West
2018)) allows an annexation agreement regardless of whether the requirements in section 7-1-
13 for a unilateral annexation are met. No condition, limitation, or exception written into the
text of section 11-15.1-1 or any other statute, as far as we know, forbids the Sanitary District,
the City of Urbana, and the City of Champaign from incentivizing or leveraging owners of
unincorporated territory to enter into a municipal annexation agreement as a condition of being
allowed to annex the territory to the Sanitary District.
¶ 68 This is not to ignore or minimize plaintiff’s predicament. Undeniably, plaintiff has been
subjected to coordinated annexation leverage. As plaintiff points out, plaintiff cannot even
build a single residence on the 100 acres and install a private septic system. Champaign County
has passed an ordinance providing as follows: “No CONSTRUCTION PERMIT shall be
issued for construction of a PRIVATE SEWAGE DISPOSAL SYSTEM where a PUBLIC
SEWER SYSTEM is available unless a physical barrier or local ordinance exists which
prevents connection to the PUBLIC SEWER SYSTEM.” Champaign County Ordinance No.
969, § 6.2.5(A) (eff. Sept. 1, 2015). Defendants, however, have not exceeded their statutory
powers, and if such annexation leverage is undesirable, the remedy is with the legislature.
¶ 69 D. The Claim of Extraterritorial Zoning
¶ 70 In March 2011, pursuant to section 11-12-6 of the Illinois Municipal Code (65 ILCS 5/11-
12-6 (West 2010)), the City of Champaign adopted a comprehensive plan, the “Champaign
Tomorrow Comprehensive Plan.” Because of its adoption of this comprehensive plan, section
11-12-5 (id. § 11-12-5) allowed the City of Champaign to pass ordinances “exercis[ing]
subdivision control over properties within one and one-half (1.5) miles from the City of
Champaign’s corporate boundaries” (to quote from the first amended complaint).
¶ 71 Specifically, section 11-12-5(1) provides:
“The plan, as recommended by the plan commission and as thereafter adopted in any
municipality in this state, may be made applicable, by the terms thereof, to land situated
within the corporate limits and contiguous territory not more than one and one-half
miles beyond the corporate limits and not included in any municipality. Such plan may
be implemented by ordinances (a) establishing reasonable standards of design for
subdivisions and for resubdivisions of unimproved land and of areas subject to
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redevelopment in respect to public improvements as herein defined; (b) establishing
reasonable requirements governing the location, width, course, and surfacing of public
streets and highways, alleys, ways for public service facilities, curbs, gutters,
sidewalks, street lights, parks, playgrounds, school grounds, size of lots to be used for
residential purposes, storm water drainage, water supply and distribution, sanitary
sewers, and sewage collection and treatment; and (c) may designate land suitable for
annexation to the municipality and the recommended zoning classification for such
land upon annexation.” Id. § 11-12-5(1).
It appears, then, that “subdivision control,” as plaintiff terms it, can cover a lot of things. And,
besides, in the absence of a statute expressly and specifically giving the State exclusive control
over subdivision regulation (see Better Government Ass’n v. Village of Rosemont, 2017 IL App
(1st) 161957, ¶ 32), the City of Champaign, as a home-rule unit (Johnny Bruce Co. v. City of
Champaign, 24 Ill. App. 3d 900, 902 (1974)), may adopt any subdivision ordinance it sees fit
to adopt. The City of Champaign, “a home rule unit, may exercise any power pertaining to its
government and affairs,” including the power of requiring a municipal annexation agreement
as a condition of approving a subdivision plat. Better Government Ass’n, 2017 IL App (1st)
161957, ¶ 32.
¶ 72 And yet, plaintiff points out in the first amended complaint, “subdivision control,”
extensive as it is, must not be confused with zoning. All that the City of Champaign’s
comprehensive plan can do is recommend a zoning classification for the land, upon annexation.
See id. Plaintiff further points out that, because Champaign County has adopted its own zoning
ordinance (Champaign County Zoning Ordinance (as amended through Aug. 23, 2018)),
section 11-13-1 of the Illinois Municipal Code (65 ILCS 5/11-13-1 (West 2018)) forbids the
City of Champaign to extend its zoning regulations outside its corporate limits. Therefore,
plaintiff’s property is not subject to the zoning ordinances of the City of Champaign, although
(as we understand plaintiff to acknowledge) plaintiff’s property is subject to the subdivision
ordinances of the City of Champaign—the “subdivision control” to which plaintiff refers in its
first amended complaint.
¶ 73 Under the Subdivision Ordinance adopted by the City of Champaign, if the property to be
subdivided is outside city limits and will connect to the city’s sewer system or to the sewer
system of the Sanitary District, approval of a final plat is conditional on the owner’s
(1) petitioning for annexation to the city or (2) executing an annexation agreement with the
city. Specifically, the Subdivision Ordinance provides as follows:
“A final plat shall not be approved where the approved engineering plans provide for
connection to any part of the sanitary sewer system of the City or the Urbana-
Champaign Sanitary District, unless the land is within the City, or the owner of the
subdivision has submitted to the City a legally sufficient petition to annex, or the City
and owner have executed an Annexation Agreement.” Champaign Municipal Code
§ 31-111 (adopted Oct. 7, 2003).
¶ 74 Plaintiff observes in the first amended complaint: “Any plat of subdivision necessary to
develop [plaintiff’s] [p]roperty will necessarily include plans that provide for connection to a
part of the sanitary sewer system of the Sanitary District.” Consequently, the City of
Champaign, which has “subdivision control” over plaintiff’s property, “will require [p]laintiff
to submit to annexation or execute an annexation agreement” before the city approves a
subdivision plat. Plaintiff complains that annexation of the property to the City of Champaign
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“will result in [p]laintiff being subject to the City of Champaign’s zoning regulations upon the
[p]roperty rather than being subject to the zoning regulations of Champaign County as the
[p]roperty currently is.”
¶ 75 In its brief, plaintiff asserts: “An intergovernmental agreement that results in the expansion
of zoning authority outside city limits to an area within one and one-half miles beyond the city
limits is expressly forbidden by [section 11-13-1 of the Illinois Municipal Code (65 ILCS 5/11-
13-1 (West 2018))].” The intergovernmental agreement at issue in this case is the Sewer
Agreement. It is unclear how the Sewer Agreement is even relevant in this context. Sewer
Agreement or no Sewer Agreement, the Subdivision Ordinance requires plaintiff to agree to
the municipal annexation of the land as a condition of obtaining approval of a final plat. After
plaintiff enters into an annexation agreement with the City of Champaign, the land will be
“subject to the ordinances, control, and jurisdiction of the annexing municipality in all respects
the same as property that lies within the annexing municipality’s corporate limits.” 65 ILCS
5/11-15.1-2.1(a) (West 2018). So, it is true, after the execution and adoption of the annexation
agreement, the zoning of plaintiff’s property by the City of Champaign would be
extraterritorial—but it would be extraterritorial zoning authorized by section 11-15.1-2.1(a).
¶ 76 For that reason, an Attorney General opinion from 1976 on which plaintiff relies is
inapplicable. It answered a question that is not raised in the present case. The state’s attorney
of McHenry County asked the Attorney General whether McHenry County and the City of
Crystal Lake could enter in an intergovernmental cooperation agreement whereby McHenry
County would transfer its zoning authority to the City of Crystal Lake. 1976 Ill. Att’y Gen.
Op. No. S-1029, at 7, https://illinoisattorneygeneral.gov/opinions/1976/S-1029.pdf [https://
perma.cc/UA7U-5LAN]. The Attorney General’s answer was no. He gave a three-pronged
rationale for his negative answer. First, McHenry County had adopted its own zoning
ordinance. Id. at 5. Second, section 11-13-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1973,
ch. 24, ¶ 11-13-1) forbade a municipality to exercise zoning powers outside its corporate limits
if the county had adopted its own zoning ordinance or, more precisely, “ ‘if the county ***
ha[d] adopted “AN ACT in relation to county zoning,” approved June 12, 1935[,] as amended’
[(Ill. Rev. Stat. 1973, ch. 34, ¶ 3151 et seq.)].” 1976 Ill. Att’y Gen. Op. No. S-1029, at 3-4,
https://illinoisattorneygeneral.gov/opinions/1976/S-1029.pdf [https://perma.cc/UA7U-5LAN]
(quoting Ill. Rev. Stat. 1973, ch. 24, ¶ 11-13-1). Third, under article VII, section 10(a), of the
Illinois Constitution (Ill. Const. 1970, art. VII, § 10(a)) and sections 3 and 5 of the
Intergovernmental Cooperation Act (Ill. Rev. Stat. 1973, ch. 127, ¶¶ 743, 745), an
intergovernmental cooperation agreement could not transfer power from one unit of local
government to another if statutory law forbade the transferee from exercising that power. 1976
Ill. Att’y Gen. Op. No. S-1029, at 7, https://illinoisattorneygeneral.gov/opinions/1976/S-
1029.pdf [https://perma.cc/UA7U-5LAN]. In short, statutory law forbade the City of Crystal
Lake to exercise extraterritorial zoning since McHenry County had adopted its own zoning
ordinance. Therefore, McHenry County could not enter into an intergovernmental agreement
with the City of Crystal Lake whereby McHenry County would transfer its zoning powers to
the City of Crystal Lake.
¶ 77 Although plaintiff neglects to so mention, the Attorney General wrote: “This opinion is
limited to the facts and issues of this instance and should not be construed as defining or
interpreting the sweep of section 10(a) of article VII [(Ill. Const. 1970, art. VII, § 10(a))] in
other factual situations.” Id. at 8. The facts and issues in the present case are significantly
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different from those the Attorney General addressed. The crucial difference is this. In the event
that plaintiff and the City of Champaign entered into an annexation agreement, section 11-
15.1-2.1(a) of the Illinois Municipal Code (65 ILCS 5/11-15.1-2.1(a) (West 2018)) would
make plaintiff’s land “subject to the ordinances, control, and jurisdiction of the annexing
municipality in all respects the same as property that lies within the annexing municipality’s
corporate limits.” In that event, the general statutory prohibition in section 11-13-1 of the
Illinois Municipal Code (id. § 11-13-1) would still exist. But section 11-15.1-2.1(a), being
specific to annexation agreements, would serve as an exception to the general prohibition in
section 11-13-1. See People v. Penrod, 316 Ill. App. 3d 713, 718 (2000) (“Where there is one
statute or a provision thereof dealing with a subject in general and comprehensive terms and
another statute or provision dealing with a part of that same subject in a more minute and
particular way, the particular enactment is held to qualify and to be operative as against the
general provisions.”).
¶ 78 E. Plaintiff’s Due Process Theory
¶ 79 Plaintiff argues that “[c]oerced annexation violates due process.” The fourteenth
amendment to the United States Constitution prohibits states from “depriv[ing] any person of
life, liberty, or property, without due process of law.” U.S. Const., amend. XIV, § 1. Likewise,
the Illinois Constitution provides that “[n]o person shall be deprived of life, liberty[,] or
property without due process of law.” Ill. Const. 1970, art. I, § 2. In both of those constitutional
provisions, the protectable interests are life, liberty, and property.
¶ 80 “The starting point, in any due process analysis, is a determination of whether one of these
protectable interests—life, liberty or property—is present, for if there is not, no process is due.”
(Internal quotation marks omitted.) Balmoral Racing Club, Inc. v. Illinois Racing Board, 151
Ill. 2d 367, 405 (1992). Plaintiff claims that “[c]oerced annexation violates [p]laintiff’s
property rights.” In plaintiff’s view, “units of local government [have] band[ed] together” to
deprive plaintiff of property without due process of law. Citing Groenings v. City of St.
Charles, 215 Ill. App. 3d 295, 308 (1991), plaintiff argues that “[t]he application of land use
regulations offends substantive due process rights related to property if the application is
arbitrary, unreasonable, or capricious and does not bear a substantial relationship to the public
welfare.”
¶ 81 Groenings, however, tends to undercut plaintiff’s argument. For, in Groenings, the
appellate court concluded that “[d]eprivation of mere hoped-for economic gain” failed to
qualify as a deprivation of property in the constitutional sense. Id. at 309. The factual context
of that holding in Groenings was essentially as follows. The plaintiffs owned 80 acres of
unincorporated territory in Kane County, Illinois, between the city of St. Charles and the
village of Wayne. Id. at 298. Because the property would have been more valuable inside St.
Charles than outside (id. at 308), the plaintiffs petitioned St. Charles to annex the property (id.
at 299). St. Charles denied the plaintiffs’ petition for annexation, and the same day that St.
Charles did so, it passed an ordinance authorizing the execution of a boundary agreement with
Wayne. Id. at 298. In the boundary agreement, St. Charles and Wayne agreed to neither annex
nor exercise zoning or subdivision control beyond their respective sides of the agreed-upon
boundary line. Id. The boundary agreement prohibited St. Charles from annexing the plaintiffs’
property. Id.
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¶ 82 Stung by the denial of their annexation petition and learning of the boundary agreement,
the plaintiffs sued St. Charles and Wayne. Id. at 299. The plaintiffs claimed that the boundary
agreement violated their right to substantive due process by “infring[ing]” on “their right to
the reasonable use of their property.” Id. at 308.
¶ 83 “This cannot be so,” the appellate court responded. Id. What had St. Charles and Wayne
done to change the present use of the plaintiffs’ property? Nothing. Id. The property always
had been, and still was, located in unincorporated Kane County. Id. The property still was
subject to the county zoning regulations, just as before. Id. “The uses of the property currently
possible within the county ha[d] not changed.” Id. The most that plaintiffs could say was that,
because of the boundary agreement, they might not have been able to get as much money out
of the property as they possibly could have gotten if the property were annexed to St. Charles.
Id. “What plaintiffs really seem to want,” the appellate court observed, “is for St. Charles to
act to increase the value of their property. This St. Charles is not obligated to do.” (Emphases
in original.) Id. In sum:
“[T]he action taken by St. Charles and Wayne had no effect on the [plaintiffs’] existing
rights to use their property. The present zoning and/or uses of the land remained exactly
as they had been before the agreement. No new regulations or restrictions were
imposed. No existing permissible uses were denied or limited.” Id. at 309.
¶ 84 In other words, it was not as if the passage of a new regulation had yanked the carpet out
from under the plaintiffs’ feet, depriving them of a valuable land use that they enjoyed before
the passage of the regulation. The plaintiffs’ discontent, rather, was that the boundary
agreement had shut the door to one option: not for the present use of their land but for a possible
future use. See id. But that possible future use—the use of the land as annexed territory within
the city limits of St. Charles—was never more than an expectation to begin with. Id. Even
without the boundary agreement, St. Charles might well have decided against annexation. Id.
The holding in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972), was
apropos: “To have a property interest[,] a person must have more than a unilateral expectation
of it; rather, he must have a legitimate claim of entitlement to it.” Groenings, 215 Ill. App. 3d
at 307. “Deprivation of mere hoped-for economic gain” was, in the appellate court’s view, “a
minimal incursion *** into [the] plaintiffs’ property rights”—“if it [was] an incursion at all.”
Id. at 309. The disappointment of a unilateral expectation was “not a deprivation in the
constitutional sense and [did] not raise due process concerns.” Id.
¶ 85 In the present case, plaintiff’s due process claim is even weaker than the due process claim
in Groenings. The plaintiffs in Groenings had the argument that the boundary agreement was
a change in the legal landscape that happened during their tenure as landowners. In the present
case, by contrast, plaintiff does not allege that the rules were changed after plaintiff bought the
property. Plaintiff’s case is not like City of Chicago v. Wells, 236 Ill. 129, 129-30 (1908), for
example, in which the appellant owned a tract of land that had never been subdivided and the
City of Chicago, on its own initiative and without the appellant’s consent, passed an ordinance
subdividing the land into strips of 25 feet each. Nothing comparable happened in this case. It
is not that plaintiff bought the land and that, afterward, a new set of land-use rules were
adopted. Instead, the story that plaintiff tells in the first amended complaint is essentially this.
Creighton, plaintiff’s managing director, having attended elementary school, junior high
school, and high school in Champaign, was “now seeking to further invest in his community.”
The contemplated investment would entail developing the land as a subdivision. To get the
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project started, plaintiff approached the local governmental agencies. It was then that plaintiff
discovered various ordinances and intergovernmental agreements, which have been in force
for decades and which plaintiff finds to be unpalatable. Given that narrative, the observations
that the appellate court made in Groenings likewise could be made in the present case. For all
that appears in the first amended complaint, ever since plaintiff bought the property, “[t]he
uses of the property currently possible within the county have not changed.” Groenings 215
Ill. App. 3d at 308. “No new regulations or restrictions were imposed. No existing permissible
uses were denied or limited.” Id. at 309. There has been no regulatory devaluation of what
plaintiff paid for. Since plaintiff’s purchase of the property, it is unclear how plaintiff has been
deprived of a property interest.
¶ 86 As the United States Supreme Court explained in Roth, 408 U.S. at 577, “[t]o have a
property interest in a benefit, a person clearly must have more than an abstract need or desire
for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate
claim of entitlement to it.” That is what a property interest is—a legitimate claim of
entitlement—and the legitimacy of the claim depends on a legal authority outside the
Constitution, such as state law. To quote again from Roth:
“Property interests, of course, are not created by the Constitution. Rather they are
created and their dimensions are defined by existing rules or understandings that stem
from an independent source such as state law—rules or understandings that secure
certain benefits and that support claims of entitlement to those benefits.” Id.
¶ 87 We are unaware of any Illinois case addressing a claim of entitlement to subdivision
approval. Therefore, we have looked for decisions from other jurisdictions that might be
informative. One decision that seems relevant and soundly reasoned is Bower Associates v.
Town of Pleasant Valley, 761 N.Y.S.2d 64 (App. Div. 2003). In that case, the plaintiff brought
a civil-rights action (see 42 U.S.C. § 1983 (2000)) against a town and its planning board on the
ground that they had denied the plaintiff’s application for subdivision approval. Bower
Associates, 761 N.Y.S.2d at 66. The essence of the plaintiff’s claim was a deprivation of
property without due process of law. Id. at 68.
¶ 88 Because the plaintiff in Bower alleged a deprivation of property, the plaintiff had to “show
the existence of a protectable property interest.” Id. “Protectable property interests arise,” the
reviewing court explained, “when there is a legitimate claim of entitlement pursuant to a State
or local law.” Id. A claim of entitlement would be legitimate, and a protectable property interest
would arise, only if “the municipal authority [were] required to grant the application upon
ascertainment that certain objectively ascertainable criteria ha[d] been met.” (Internal
quotation marks omitted.) Id. Under New York law, subdivision approval, instead of being an
entitlement, was “discretionary.” Id. “[T]he presence of *** discretion preclude[d] any
legitimate claim of entitlement.” (Internal quotation marks omitted.) Id. The reviewing court
concluded that, given the discretionary nature of municipal decision-making in this field, the
plaintiff lacked “a protectable property interest in subdivision approval.” Id. at 69.
¶ 89 In the present case, plaintiff fails to explain how, under objectively ascertainable criteria
set forth in state or local law—criteria that eliminate local governmental discretion—plaintiff
is entitled to subdivision approval. See Champaign Municipal Code § 31-104 (adopted Mar. 5,
2002) (providing that “[t]he provisions of this chapter [(chapter 31, ‘Subdivision
Regulations’)] shall be held to be the minimum requirements for the promotion of the public
health, safety and general welfare” (Emphasis added.)). Therefore, plaintiff has no protectable
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property interest in subdivision approval. It is true, as plaintiff notes, that “[l]egislative
decisions made by municipalities are subject to review only for arbitrariness as a matter of
substantive due process.” (Internal quotation marks omitted.) In re Application of the Park
District of La Grange, 2013 IL App (1st) 110334, ¶ 75. But there can be no arbitrary
deprivation in violation of due process unless there was, in the first place, a protectable interest
of which the person could be deprived. Plaintiff has a desire for subdivision approval but no
property interest in subdivision approval. The City of Champaign could not arbitrarily and
capriciously deprive plaintiff of a property interest that plaintiff lacked in the first place.
¶ 90 The same analysis applies to the question of annexation to the Sanitary District. Plaintiff
fails to explain how, under objectively ascertainable criteria set forth in state or local law,
plaintiff is entitled to an approval of its petition for annexation to the Sanitary District. Instead,
it appears that the Board of the Sanitary District has wide discretion to deny the petition. While
it is true that the Board’s discretion to approve the petition is limited by the Sewer Agreement,
the Board’s discretion to deny the petition appears to be unlimited. We are unaware of any
objective criteria, legally binding on the Board, that would bestow on plaintiff a property
interest in not being denied. Absent a property interest, plaintiff has no legally sufficient due
process claim against the Sanitary District any more than plaintiff has a legally sufficient due
process claim against the City of Champaign or any other of the municipal defendants.
¶ 91 Even if plaintiff had a property interest in subdivision approval by the City of Champaign
and in annexation to the Sanitary District, we would decline to hold that those defendants acted
arbitrarily and capriciously by insisting on plaintiff’s execution of a municipal annexation
agreement, as the Sewer Agreement required. See id. Such an insistence was a legislative
decision having a real and substantial relation to the public health, safety, and general welfare.
See id. The Sewer Agreement makes sense. The problems afflicting Boneyard Creek are
stubborn and, most likely, expensive to remedy. Every dollar that the Sanitary District spent
on Boneyard Creek was one dollar less that the Sanitary District had to spend on its core
mission of maintaining the sewer system. The City of Urbana and the City of Champaign,
whose residents were subjected to the toxic floodwaters of Boneyard Creek, offered the
Sanitary District a way out. These municipalities would assume responsibility for the
maintenance and improvement of Boneyard Creek, thereby relieving the Sanitary District of
that financial burden, if the Sanitary District would do something for them: if any owner of
unincorporated territory petitioned for annexation to the Sanitary District, the Board of the
Sanitary District would require, as a condition of granting the petition, that the landowner
execute an annexation agreement with the municipality. This agreed-upon condition seems
reasonably defensible. Taming Boneyard Creek and cleaning it up will undoubtedly be
expensive and an added financial burden to the City of Urbana and the City of Champaign. An
expansion of their tax base is, therefore, justifiable. Also, because the problem of Boneyard
Creek, which the City of Urbana and the City of Champaign are taking on, is largely a problem
of stormwater management, the City of Urbana and the City of Champaign understandably
want some control over the extent to which their outskirts will be paved with impervious
surfaces. Viewed that way, the Sewer Agreement is “a rational means to accomplish a
legitimate purpose.” (Internal quotation marks omitted.) Id.
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¶ 92 F. The Right to Choose Whether to Participate in the Political Process
¶ 93 1. Hoepker
¶ 94 Plaintiff quotes from the City of Champaign’s “Curtis Road Interchange Area Master
Plan”: “Without annexation into the City of Champaign, the development will not be approved
for sanitary sewer service or other necessary services.” Then quoting from a decision by the
Supreme Court of Wisconsin, Hoepker v. City of Madison Plan Comm’n, 563 N.W.2d 145,
151 (Wis. 1997), plaintiff contends that this coercive condition denies plaintiff its “political
right to participate in an annexation proceeding by voluntarily deciding whether to support or
oppose annexation.”
¶ 95 In Hoepker, the plaintiffs wanted to develop 49 acres into a residential subdivision. Id. at
146. Because the land was within three miles of the City of Madison, the city had
“extraterritorial plat approval jurisdiction over it.” Id. at 147. The city approved the plaintiffs’
preliminary plat—but only on condition that the plaintiffs agreed to an annexation of the
territory to the city. Id. at 148. (There was a second condition, irrelevant to our discussion, that
the plat be reconfigured to provide “an adequate open space corridor.” Id.) The city explained
to the plaintiffs that, without public water and a public sewage system, water quality problems
were likely to develop. Nitrates had been accumulating in Wisconsin wells. And it was much
cheaper to install water and sewer lines before the land was built on than afterward. Id. at 147.
¶ 96 Nevertheless, the plaintiffs balked at the condition of annexation, and they challenged the
condition in court. Ultimately, the case came before the Supreme Court of Wisconsin. Id. at
149. After identifying the applicable standards of review—deference to the city’s factual
reasons for conditionally approving the plat but a de novo determination of constitutional and
statutory authority (id.)—the supreme court scrutinized the statutory provision under which
the city claimed authority to impose its condition of annexation.
¶ 97 Section 236.45 of the Wisconsin statutory code (Wis. Stat. § 236.45 (West 1996)) pertained
to local subdivision regulation. Subsection (1) provided that the purpose of section 236.45 was
“ ‘to promote the public health, safety[,] and general welfare of the community’ ” and to
“ ‘further the orderly layout and use of land.’ ” Hoepker, 563 N.W.2d at 150 n.14 (quoting
Wis. Stat. § 263.45(1) (West 1996)). Subsection (2) provided as follows:
“ ‘To accomplish the purposes listed in sub[section] (1), any municipality, town[,] or
county which has established a planning agency may adopt ordinances governing the
subdivision or other division of land which are more restrictive than the provisions of
this chapter.’ ” Id. at 150 (quoting Wis. Stat. § 263.45(2) (West 1996)).
In reliance on subsection (2), the city had adopted a more restrictive ordinance, which provided
that the city might “require an annexation agreement as part of the preliminary plat approval
process.” Id. The crucial issue, as the supreme court saw it, was whether this ordinance was
truly authorized by section 236.45 (Wis. Stat. § 236.45 (West 1996)). Hoepker, 563 N.W.2d at
150.
¶ 98 The supreme court previously had interpreted section 236.45 as giving cities broad
discretion in subdivision control, provided that the ordinances were “not contrary, expressly or
by implication, to the standards set up by the legislature.” (Emphasis and internal quotation
marks omitted.) Id. “The legislature ha[d] set forth the standards for annexation in chapter 66”
of the Wisconsin statutory code (Wis. Stat., ch. 66 (West 1996)), a chapter titled “General
Municipality Law.” Hoepker, 563 N.W.2d at 150. Chapter 66 created “safeguards so that [n]o
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populated fringe area [might] become part of the city until the majority of electors and/or
property owners in a particular area desire[d] to annex.” (Internal quotation marks omitted.)
Id. Under chapter 66, the electors and property owners would signify such a desire by signing
a petition for annexation. See id. at 150-51; Wis. Stat. § 66.0217(2), (3)(a), (3)(b) (West 1996).
¶ 99 The signing of an annexation petition, the Supreme Court of Wisconsin held, was “more
than the exercise of a private right or of a property right.” (Internal quotation marks omitted.)
Hoepker, 563 N.W.2d at 150. It was, rather, the exercise of a political right, like voting. Id. at
150-51. Because the signing of an annexation petition was like voting, it should not be tainted
by crass commercialism: “The signing of an annexation petition, like voting, constituting
participation in a governmental process is governed by a higher standard of conduct than
prevails in the marketplace—votes are not a commodity of commerce.” (Internal quotation
marks omitted.) Id. at 151. In other words, under chapter 66 of the Wisconsin statutes, signing
an annexation petition was analogous to voting, and voting was not supposed to be degraded
to a contractual transaction, i.e., a signature on the annexation petition in return for subdivision
approval. Municipalities were forbidden to “coerce or unfairly induce an elector and/or
property owner into agreeing to annexation.” Id. at 150. By conditioning approval of the
plaintiffs’ preliminary plat on their agreement to sign an annexation petition, the city had had
“unduly” and “improper[ly]” tried to “influenc[e]” and “coerc[e]” the plaintiffs, “contrary to
the safeguards provided in ch[apter] 66.” Id. at 151.
¶ 100 In our perusal of chapter 66 of the Wisconsin statutes, we have been unable to find any
provision authorizing the execution of an annexation agreement between a landowner and a
municipal government. That would explain the Wisconsin Supreme Court’s conclusion that
the City of Madison was “unduly influencing a property owner to sign an annexation petition,
contrary to the safeguards provided in ch[apter] 66.” (Emphasis added.) Id.
¶ 101 Hoepker is distinguishable because Illinois statutory law, in contrast to Wisconsin statutory
law, explicitly authorizes the negotiation and execution of an annexation agreement between
a landowner and a municipality. Section 11-15.1-1 of the Illinois Municipal Code provides:
“The corporate authorities of any municipality may enter into an annexation agreement
with one or more of the owners of record of land in unincorporated territory. That land
may be annexed to the municipality in the manner provided in Article 7 [(65 ILCS
5/art. VII (West 2018))] at the time the land is or becomes contiguous to the
municipality. The agreement shall be valid and binding for a period of not to exceed 20
years from the date of its execution.
Lack of contiguity to the municipality of property that is the subject of an
annexation agreement does not affect the validity of the agreement ***.” 65 ILCS 5/11-
15.1-1 (West 2018).
Thus, the execution of an annexation agreement does not automatically annex the land to the
municipality: once the land becomes contiguous to the municipality, the annexation procedures
in article VII still have to be followed. An annexation agreement is not an annexation.
¶ 102 Even so, practical consequences could immediately follow from the municipal adoption of
an annexation agreement executed by the landowner. With exceptions for some counties and
properties (not relevant here), “property that is the subject of an annexation agreement adopted
under this Division [(Division 15.1, titled ‘Annexation Agreements’ (id. §§ 11-15.1-1 to 11-
15.1-5))] is subject to the ordinances, control, and jurisdiction of the annexing municipality in
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all respects the same as property that lies within the annexing municipality’s corporate limits.”
Id. § 11-15.1-2.1(a). This could be regarded as a significant concession to the municipality.
¶ 103 But the landowner can negotiate for concessions, too. For example, the landowner can
negotiate for changes to ordinances and the master plan (id. § 11-15.1-2(b)), a limitation upon
increases in permit fees (id. § 11-15.1-2(c)), or an abatement of property taxes (id. § 11-15.1-
2(e-5)).
¶ 104 In short, the give-and-take of commercialism is exactly what the Illinois General Assembly
envisions in division 15.1. “By definition, an annexation agreement is a contract between a
municipality and an owner of land in unincorporated territory.” Doyle v. Village of Tinley Park,
2018 IL App (1st) 170357, ¶ 28; see also United City of Yorkville v. Fidelity & Deposit Co. of
Maryland, 2019 IL App (2d) 180230, ¶ 74. Section 11-15.1-2 of the Illinois Municipal Code
(65 ILCS 5/11-15.1-2 (West 2018)) is broad and inexhaustive as to the contractual terms that
the landowner and the municipality can negotiate. The list of examples in section 11-15-1.2
ends with a catchall: “Any other matter not inconsistent with the provisions of this Code, nor
forbidden by law.” Id. § 11-15.1-2(f). To put it differently, section 11-15.1-2(f) authorizes any
term in an annexation agreement unless that term is incompatible with a provision of the
Illinois Municipal Code or unless the law positively forbids that term. We are aware of no
provision of the Illinois Municipal Code that necessarily would be violated if a landowner and
a municipality agreed to subdivision approval in return for a municipal annexation.
¶ 105 2. Hussey
¶ 106 On the authority of Hussey v. City of Portland, 64 F.3d 1260 (9th Cir. 1995), plaintiff
maintains that, by withholding subdivision approval unless plaintiff enters into an annexation
agreement, the City of Champaign unconstitutionally burdens plaintiff’s right to vote.
¶ 107 In Hussey, the City of Portland offered a sewer-connection subsidy to nonresident electors
in an area known as “Mid-County” who irrevocably consented to an annexation. Id. at 1262.
The consent forms stated that, if Portland attempted to annex Mid-County by election, “ ‘this
agreement [would] constitute[ ] a waiver of the right to vote *** [and] such persons [would]
count as yes votes.’ ” Id. at 1263.
¶ 108 The Ninth Circuit held that, “[b]ecause the consent forms [were] analytically like votes,
and [were] a substitute for them, legally they [had to] be treated as votes.” Id. at 1265. The
Portland ordinance “severely and unreasonably interfere[d] with the right to vote,”
“disproportionately affect[ing] the poor,” like a poll tax. Id. at 1266. Therefore, the restrictions
were subject to strict scrutiny. Id. The ordinance failed strict scrutiny and, hence, was “an
unconstitutional infringement on the fundamental right to vote.” Id.
¶ 109 But the right to vote can be infringed only if there are voters. That is why the Ninth Circuit
distinguished a case from the Sixth Circuit, Carlyn v. City of Akron, 726 F.2d 287 (6th Cir.
1984), and a case from the Fourth Circuit, Berry v. Bourne, 588 F.2d 422 (4th Cir. 1978). The
Ninth Circuit observed: “Neither of the annexation methods at issue in those cases [(Carlyn
and Berry)] granted electors any say in the proceedings; the consent of landowners alone was
required. Without the participation of voters, there can be no voting.” Hussey, 64 F.3d at 1264.
¶ 110 An “ ‘elector’ means anyone registered to vote.” 65 ILCS 5/7-1-1.1 (West 2018). Plaintiff,
being a Florida limited liability company, is not, and can never be, registered to vote. Thus,
plaintiff is not, and can never be, an elector. Plaintiff does not allege that any electors reside
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on the land. It seems unlikely that any electors would do so while the land is undeveloped and
lacks a sewer system. Consequently, plaintiff, the landowner, would be the only signatory to
an annexation petition, which would “state that no electors reside therein” (see id. § 7-1-8).
Hussey, by its own terms—by its own distinguishing of Carlyn and Berry—is distinguishable
from the present case.
¶ 111 III. CONCLUSION
¶ 112 The Sewer Agreement, the Sanitary District Ordinance, and the Subdivision Ordinance are
constitutionally and statutorily authorized and violate no constitutional right. Therefore, we
affirm the circuit court’s judgment.
¶ 113 Affirmed.
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