I-57 & Curtis, LLC v. Urbana & Champaign Sanitary District , 2020 IL App (4th) 190850 ( 2020 )

FILED
2020 IL App (4th) 190850 August 26, 2020
Carla Bender
NO. 4-19-0850 4th District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
I-57 AND CURTIS, LLC, a Florida Limited Liability ) Appeal from the
Company, ) Circuit Court of
Plaintiff-Appellant, ) Champaign County
v. ) No. 18MR867
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 ) Honorable
VILLAGE OF BONDVILLE, an Illinois Body Politic ) Jason Matthew Bohm,
and Corporate, ) Judge Presiding.
Defendants-Appellees.
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 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
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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
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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 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
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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.”
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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.
¶ 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:
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“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
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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 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.
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¶ 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.
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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 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,
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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
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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.”
(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
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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
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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.”
¶ 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
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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 petition. Regardless
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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
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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.’ ” Rajterowski, 405 Ill. App. 3d at 1119 (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. at 1123. 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
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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 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
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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
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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
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
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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
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¶ 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 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
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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))].” Chicago Title, 2018 IL App (3d)
160713, ¶ 42. 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
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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.”
¶ 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.
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¶ 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.
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¶ 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 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.
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¶ 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
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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 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
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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]
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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 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
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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
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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 “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.” Id. § 11-15.1-2.1(a). So, it
is true, after the execution and adoption of the annexation agreement, the zoning of plaintiff’s
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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.
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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.” 1976 Ill. Att’y Gen. Op. No. S-1029, at 8,
https://illinoisattorneygeneral.gov/opinions/1976/S-1029.pdf [https://perma.cc/UA7U-5LAN].
The facts and issues in the present case are significantly 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 (65 ILCS 5/11-13-1 (West 2018))
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
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¶ 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
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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.
¶ 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.
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¶ 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.
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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 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
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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—
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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 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.
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¶ 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 Park District of La Grange, 2013 IL
App (1st) 110334, ¶ 75. 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,
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the Sewer Agreement is “a rational means to accomplish a legitimate purpose.” (Internal quotation
marks omitted.) Id.¶ 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
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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 populated fringe
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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
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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 art. VII)] 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.
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¶ 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
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,
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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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No. 4-19-0850
Cite as: I-57 & Curtis, LLC v. Urbana & Champaign Sanitary District,
2020 IL App (4th) 190850Decision Under Review: Appeal from the Circuit Court of Champaign County, No. 18-MR-
867; the Hon. Jason Matthew Bohm, Judge, presiding.
Attorneys Matthew R. Trapp and Jason E. Brokaw, of Giffin, Winning,
for Cohen & Bodewes, P.C., of Springfield, and Kristina M. Swanson,
Appellant: of Wooden McLaughlin LLP, of Indianapolis, Indiana, for
appellant.
Attorneys James A. Martinkus, of Erwin, Martinkus & Cole, Ltd., of
for Champaign, for appellee Urbana and Champaign Sanitary
Appellee: 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.
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