In the Zone: Appellate Court Addresses Annexation Challenge in Solar Farm Case
A company leased property in unincorporated Kane County intending to develop a solar farm. After the company applied for a special use permit from the county, the city council approved a resolution protesting the application and representatives of the city, as well as others, objected to the application at the county ZBA hearing on the application. Ultimately, the county board approved the special use permit, and shortly thereafter, the city adopted an ordinance to forcibly annex the subject property and adjacent parcels. The annexation ordinance stated that the property was "wholly bounded" by the city based on a previous voluntary annexation of railroad property.
The company filed a lawsuit against the City (in quo warranto) claiming that the annexations did not satisfy certain statutory requirements. First, the company argued that the annexation territory was not "wholly bounded" as required by section 7-1-13 of the Illinois Municipal Code because the adjacent ComEd property did not qualify as a "public utility right of way" to satisfy the contiguity exception under the annexation statute. Second, the company argued that the voluntary annexation of the railroad property was a "sham transaction" solely intended to meet the "wholly bounded" requirement of the annexation statute.
The circuit court dismissed the case, finding no deficiencies in either the forcible annexation of the annexation property or the previous voluntary annexation of the railroad property.
The company appealed, and the Appellate Court issued a ruling in RPIL Solar 10, LLC v. City of Aurora, agreeing with the circuit court that the challenge to the voluntary annexation of the railroad property as a "sham" was properly dismissed. However, the Appellate Court overturned the circuit court's dismissal of the company's challenge to the forcible annexation. The Court noted that in order for a municipality to forcibly annex property under section 7-1-13, the property must be "wholly bounded" by one or more municipalities and/or a forest preserve district. The Court acknowledged there were certain exceptions in the statute, including property that is separated from a city by a public utility right of way, which is what the city relied on in annexing the annexation property. The company responded that because ComEd owned the disputed property in "fee simple," it did not qualify as a public "right of way" under the limited exception. The Appellate Court agreed, finding that a fee simple interest is not the same as a right of way interest under the annexation statute. As a result, the Court held that the company did adequately allege a quo warranto claim to challenge the forcible annexation, and that claim should not have been dismissed by the circuit court. The case was sent back to the circuit court for further proceedings.
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