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Tuesday, May 22, 2018

"Sham" Annexation Violated Public Policy and is Invalid

State law authorizes a municipality to annex unincorporated territory to the municipality in a number of different ways. A municipality may annex a property voluntarily, when a property owner files an annexation petition requesting that its property be annexed. A municipality may also annex property involuntarily or forcibly, if certain statutory conditions are met. For example, a municipality may forcibly annex a property that is "wholly bounded" by one or more municipalities without the owner's consent. In Chicago Title Land Trust v. County of Will, the court considered the legality of a forcible annexation that was contingent upon the validity of a previous voluntary annexation.

The municipality had entered into an annexation agreement with ComEd to annex a 5 acre parcel to the municipality. Pursuant to the annexation agreement, ComEd agreed to file an annexation petition to voluntarily annex its property, subject to certain conditions. Those conditions included the ability to disconnect the property upon ComEd's request. The annexation agreement was approved, and the property annexed pursuant to its terms.

Subsequent to the annexation of the ComEd property, the municipality adopted an ordinance forcibly annexing property that became "wholly bounded" as a result of the ComEd annexation. Shortly thereafter, the property owner filed suit, challenging the forcible annexation as a "sham" based on the terms of the annexation agreement and the municipality's actions.

Although the trial court upheld the annexation, the appellate court did not, finding that the municipality's actions amounted to a "sham" annexation of the ComEd property that was for the sole purpose of bringing into the municipality the adjacent property without consent of the owner. The court determined that because the ComEd annexation was a "sham" it was invalid, meaning that the property forcibly annexed was not "wholly bounded" for purposes of the forcible annexation statute. The court concluded that this sham transaction violated public policy.

Post Authored by Julie Tappendorf


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