Posted by: Patricia Salkin | April 3, 2012

Illinois Appeals Court Invalidates Annex Ordinance Finding Water Feature was Not a Creek as Required Under Illinois Law

Ross Hugi owned about forty-four acres of land in Lake County.  Hugi had leased part of his land to T-Mobile to build a wireless communications tower.  In 2009, Lake County issues a permit to T-Mobile to build the towers.  In 2008, however, the Village of Hawthorn Woods had passed three ordinances that annexed three parcels of land in Lake County.  The property leased by T-Mobile was part of the land purportedly annexed.  The village informed T-Mobile that they would need village permission before constructing the tower.  

T-Mobile sued the village, alleging first, that the ordinances were invalid, and second, even if there were valid, T-Mobile had a vested right to build their towers.  The trial court dealt only with the first issue, whether the ordinance was valid, and stayed the second.  Under the Illinois Municipal Code, a municipality may not annex property under sixty acres unless it is bounded by a legal boundary, such as a creek.  There was a water feature on the land that the village asserted was a creek and, thus, constituted a legal boundary.  T-Mobile argued that the water feature was not a creek, therefore, it could not constitute a legal boundary. 

During the trial, each side offered expert testimony on whether or not the water feature was a creek.  The village expert submitted aerial photographs that showed the creek developing over time.  T-Mobile’s expert presented evidence, including pieces of drainage tile, that the water feature was manmade and appeared only recently on the aerial maps.  The trial court distinguished between natural and artificial water feature and ultimately agreed with the T-Mobile’s expert that the water feature at issue was manmade and, thus, did not comply with the state statute. 

The village appealed to the Illinois appeals court.  The appeals court began by identifying the first  issue: what constitutes a creek and, thus, a legal boundary for purposes of the municipal code.  The court explains that since the statute does not define creek, the court should construe it as its popular meaning.  The court found that the dictionary defines creek as a “natural” flow of water.  The appellate court dismisses various arguments given by the village that a creek could be manmade.  The court ultimately finds that the word creek requires it to be natural. 

Next, the court must decide whether the water feature at issue was natural or manmade.  The court explains that there was disputed testimony on whether or not the water feature was natural.  Ultimately, the court finds there was enough evidence in the record to support the trial court’s finding that the water feature was not natural, including photographs that the water feature developed over time and the drainage tile.  Thus, the court defers to the lower court’s finding and affirms their decision, holding that the water feature is not a creek and consequently, the ordinance void. 

People ex rel. T-Mobile USA, Inc. v. Village of Hawthorn Woods, 2012 WL 776076 (Ill. App. 2 Dist. 3/08/2012) 

The opinion can be accessed at: http://www.state.il.us/court/Opinions/AppellateCourt/2012/2ndDistrict/2110192.pdf


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