Board of Education of Richland School District No. 88A v. City of Crest Hill

2020 IL App (3d) 190225

Opinion filed July 24, 2020

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE BOARD OF EDUCATION OF ) Appeal from the Circuit Court RICHLAND SCHOOL DISTRICT NO. 88A, ) of the 12th Judicial Circuit, an Illinois Public School District, ) Will County, Illinois, ) Plaintiff-Appellant, ) ) Appeal No. 3-19-0225 v. ) Circuit No. 18-CH-19 ) THE CITY OF CREST HILL, an Illinois ) Non-Home Rule Municipal Corporation, ) Honorable ) John C. Anderson, Defendant-Appellee. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE WRIGHT delivered the judgment of the court, with opinion. Presiding Justice Lytton concurred in the judgment and opinion. Justice Holdridge specially concurred, with opinion. ____________________________________________________________________________

OPINION

¶1 Plaintiff filed a verified complaint challenging the tax increment financing (TIF)

ordinances approved by defendant to establish the Weber Road Corridor TIF District (TIF District)

under the Tax Increment Allocation Redevelopment Act (Act), 65 ILCS 5/11-74.4-1 et seq. (West

2016). Each party filed a cross-motion for summary judgment. The circuit court granted summary

judgment for defendant. Plaintiff appeals. *2 ¶2 I. BACKGROUND ¶3 The material facts are undisputed on appeal. Our resolution turns on an application of those

facts to the Act. Before beginning this task, a brief overview of the events culminating in the

establishment of the TIF District and the parties’ arguments in the circuit court is appropriate. ¶4 A. Establishment of the TIF District ¶5 In July 2017, defendant, the City of Crest Hill (City), requested and received a TIF

Redevelopment Plan and Project (Plan), prepared by Camiros, Ltd., under the Act. The Plan

included a conclusion that the proposed project area qualified as a redevelopment project area

because it was a “blighted area” under the Act. See id. § 11-74.4-3(a). 1 ¶6 Consistent with its obligation under section 11-74.4-5(b) of the Act, the City convened a

joint review board (JRB). See id. § 11-74.4-5(b). Section 11-74.4-5(b) states a JRB shall include:

“a representative selected by each community college district, local elementary

school district and high school district or each local community unit school district,

park district, library district, township, fire protection district, and county that will

have the authority to directly levy taxes on the property within the proposed

redevelopment project area at the time that the proposed redevelopment project area

is approved, a representative selected by the municipality and a public member.”

Id. ¶7 Further, section 11-74.4-5(b) states that a JRB reviews “(i) the public record, planning

documents and proposed ordinances approving the redevelopment plan and project and

(ii) proposed amendments to the redevelopment plan or additions of parcels of property to the

1 Five statutory conditions for “blighted area” existed for the proposed project area’s 339 acres of improved property. See 65 ILCS 5/11-74.4-3(a)(1) (West 2016). Three statutory conditions for “blighted area” existed for the proposed project area’s 74 acres of vacant property. See id. § 11-74.4-3(a)(2), (3).

redevelopment project area to be adopted by the municipality.” Id. The JRB then renders “an

advisory, non-binding recommendation” on the redevelopment plan and project. See id. ¶8 Plaintiff, Board of Education of Richland School District No. 88A (School Board), selected

Joe Simpkins as its representative on the JRB convened by the City in this case. The JRB met for

the first time on October 10, 2017, in the City’s council chambers, where a vote to approve the

TIF District failed. Thus, the City’s attorney suggested that the JRB “prepare a statement setting

forth the reasons that [the] Plan either failed to comply with the Act or how the property did not

meet the [TIF] eligibility requirements.” The JRB continued the meeting until November 6, 2017,

at which time the JRB reconvened and adopted a written statement that the TIF District

“not be created because the proposed Redevelopment Project Area does not meet

the criteria for designation as a TIF District under the TIF Act. The [JRB] finds that

[TIF] is not needed to encourage redevelopment within the Redevelopment Project

Area, and the Redevelopment Project Area would experience redevelopment in the

absence of [TIF]. The [JRB] finds that the creation of the *** [TIF] District would

have a significant negative impact on the affected taxing districts, by the redirection

of critical property taxes away from the affected taxing districts into a TIF fund for

up to twenty three (23) years.” ¶9 According to the transcript of the November 6, 2017, meeting of the JRB, the City’s

attorney asked for more “specificity on how [the TIF District] fails to meet the criteria.” Regarding

an obligation of the City to respond to the JRB’s written statement, the City’s attorney stated, “I’m

not quite sure, frankly, what we’re responding to because it sounds like *** the TIF [D]istrict

doesn’t meet the criteria, but there is no specificity as to which criteria aren’t met and whether it

is needed.” In response, the School Board’s attorney stated that if the City

“takes the position that it has met all its obligations with regard to [JRB] proceedings and

it is going to go ahead any way [sic], it can do that *** [but] [t]he more conservative

approach for the City would be to interact with the JRB as called for under the TIF [A]ct.”

Thereafter, the JRB voted to reconvene on the tentative date of December 4, 2017. Also on

November 6, 2017, after receiving the JRB’s written statement, the City held and adjourned a

public hearing on the TIF District. ¶ 10 On November 20, 2017, the City’s mayor, Raymond Soliman, wrote a letter to the School

Board’s JRB representative, Simpkins, asserting that the JRB did not cite “any specific challenges

to the [P]lan” and any determination regarding the need for redevelopment was “a finding to be

made by the municipality.” In the letter, the mayor stated, “there is no reason for the City to meet

with the JRB members on December 4th.” According to the mayor, the JRB’s written statement

recommending a rejection of the TIF District was “legally deficient to the point that there [we]re

no amendments the City c[ould] make to address the JRB objections.” On this same day, the City

unanimously approved three TIF ordinances establishing the TIF District. ¶ 11 When the members of the JRB arrived at Crest Hill City Hall on December 4, 2017, they

were informed that the scheduled meeting was cancelled. The JRB conducted a meeting in the

hallway of Crest Hill City Hall to affirm the recommendation to reject the TIF District. ¶ 12 B. The School Board’s Verified Complaint ¶ 13 On January 2, 2018, the School Board filed a verified complaint against the City, alleging

that the three TIF ordinances approved by the City were invalid due to noncompliance with the

statutory mandates of the Act. First, the School Board stated that the northwestern portion and the

remainder of the TIF District were not contiguous, as required by section 11-74.4-4(a) (see id. *5 § 11-74.4-4(a)). For context, we have included maps of the TIF Disti·ict, with court notations, immediately below.

Map 1-TIF Disti·ict Map

234.9 foot 66 feet of Aandich Road

Parcel B - - ~ Parcel A Parcel C

Intersection of Weber Road and W. Division Street

Map 2-Enlarged TIF Disti·ict Map with Measurements and Highlighted Boundaiy

.a I feai of .I l •.

d RANDICt "ID : . - : - t - ~ - 2~19 1001 i!'. -4)01tlo~ OTllle o Natural~s ~ • R;gt,tofWav a,

The School Board's complaint also alleged that the City failed to comply with ce1tain procedural requirements of the Act Specifically, the School Board alleged that (1) the City failed to provide administi·ative suppo1t to the JRB by publishing agendas and providing meeting space and administi·ative staff on October 10, November 6, and December 4, 2017; (2) the City improperly adjourned a public hearing on the TIF Disti·ict before the JRB held its meeting scheduled for December 4, 2017; (3) the City failed to meet and confer with or resubmit a revised Plan to the JRB after receiving the written statement recollllllending a rejection of the TIF Disti·ict;

and (4) the City improperly approved the ordinances establishing the TIF District before meeting

and conferring with, resubmitting a Plan to, or allowing the December 4, 2017, meeting to be held

by the JRB. As a result of the City’s noncompliance with the Act, the School Board requested that

the City be enjoined from advancing its TIF District. ¶ 15 C. Cross-Motions for Summary Judgment ¶ 16 On December 21, 2018, the City and the School Board filed cross-motions for summary

judgment. Thereafter, the parties filed responses and replies to the cross-motions for summary

judgment. The parties’ respective motions and responses are summarized separately below. ¶ 17 1. The City’s Cross-Motion for Summary Judgment ¶ 18 In its motion for summary judgment, the City addressed the verified complaint’s allegation

that the TIF District was not contiguous, as required by section 11-74.4-4(a). The City pointed out

that the School Board’s allegation was based on “a map with the superimposed markings

[‘noncontiguous’] of an unknown person.” In contrast, the City provided official Will County

maps, which revealed that the northwestern portion of the TIF District, parcels B and C, share an

1175 foot common boundary along Weber Road that was sufficient during the annexation of parcel

C. Likewise, the City relied on “jumping” the natural gas right of way for purposes of the prior

annexation of parcel B, as it claimed was expressly allowed by section 7-1-1 of the Illinois

Municipal Code (id. § 7-1-1). In addition, the City’s motion for summary judgment addressed the

allegations pertaining to the Act’s procedural requirements. ¶ 19 2. The School Board’s Motion for Summary Judgment ¶ 20 The School Board’s motion for summary judgment addressed the issue of contiguity.

Initially, the School Board rejected as irrelevant the City’s contention that “there exists 1,175 linear

feet of common boundary establishing contiguity” between parcels B and C. The School Board

contended parcels A and B, not parcels B and C, were noncontiguous under the Act. ¶ 21 Likewise, the School Board rejected the City’s contentions with respect to past

annexations. The School Board pointed out that annexations and TIF are governed by independent

sections of the Illinois Municipal Code. In the School Board’s view, the portion of the Illinois

Municipal Code governing TIF did not allow the City to “jump” the 234.9 foot portion of the

natural gas right-of-way to establish contiguity between parcels A and B. Again, the School Board

argued that these parcels, not parcels B and C, were noncontiguous under the Act. 2 ¶ 22 In support of this argument, the School Board relied on the deposition testimony of Jeanne

Lindwall, principal consultant for Camiros, Ltd., who prepared an eligibility study and the Plan

for the City. Lindwall agreed that the contiguity of the northwestern portion of the TIF District

(i.e., parcels B and C) and the remainder of the TIF District (i.e., parcel A) was “solely based” on

the City’s ability to “jump” the 234.9 foot portion of the natural gas right-of-way. Being even more

precise, Lindwall agreed this was “the only way” to get contiguity to parcel B from parcel A. Sixty-

six feet of Randich Road would also be included, but the “primary contiguity” came from the right-

of-way. Lindwall admitted that she relied upon legal counsel’s explanations of contiguity under

“the annexation statute.” She agreed that if her understanding of contiguity was incorrect, “there

would be no contiguity” between parcels A and B. The School Board also argued that the City

failed to comply with the Act’s procedural requirements.

2 City Administrator and JRB chairwoman, Heather McGuire, said in her deposition that the City’s contiguity “discussion point was always focused around the northern portion of [the] pipeline.”

¶ 23 D. Judgment of the Circuit Court ¶ 24 The circuit court held a hearing on the parties’ motions for summary judgment on

February 15, 2019, before taking the matter under advisement. On March 28, 2019, the circuit

court granted the City’s, and denied the School Board’s, motion for summary judgment. Regarding

contiguity, the circuit court found there was “over 400 feet of contiguity” connecting parcels A

and B and “well over 1000 feet of contiguity” connecting parcels B and C. Thus, contrary to the

School Board’s allegations, the circuit court found contiguity existed between the northwestern

portion and the remainder of the TIF District. Even if there were only 234.9 feet of contiguity

between parcels A and B (i.e., between the northwestern portion and the remainder of the TIF

District), the circuit court would have found that distance was sufficient under the case law, as the

existence of the natural gas right-of-way was “of no legal consequence.” ¶ 25 With respect to administrative support, the circuit court found the City “provided sufficient

meeting space, clerical support, and notice of meetings and agendas.” The circuit court also

rejected the contention that the City “improperly closed the public hearing before the JRB

concluded its work and further failed to satisfy the ‘meet and confer’ requirements,” stating that

the City

“made reasonable efforts to conform to the JRB’s recommendations, but the JRB’s

position lacked specificity. Moreover, [the City]’s counsel requested additional

specificity, but did not receive it. If anything, the evidence suggests that the school

board took an obstructionist position but [the City] did everything it was required

to do, and everything that was reasonable to do. In short, [the City] complied with

the TIF Act.”

For these reasons, the circuit court granted the City’s, and denied the School Board’s, motion for

summary judgment. The School Board filed a timely notice of appeal on April 25, 2019. ¶ 26 II. ANALYSIS ¶ 27 On appeal, the School Board presents the same issues as it did in the circuit court. However,

we address only the legal question of whether the parcels contained within this TIF District were

contiguous, as required by statute. See id. § 11-74.4-4(a). Relevantly, section 11-74.4-4(a) states:

“No redevelopment project area shall be designated unless a plan and project are approved prior

to the designation of such area and such area shall include only those contiguous parcels of real

property and improvements thereon substantially benefited by the proposed redevelopment project

improvements.” (Emphasis added.) Id. ¶ 28 In the past, our court recognized that the Act does not define “contiguous.” See Henry

County Board v. Village of Orion, 278 Ill. App. 3d 1058, 1067 (1996). We acknowledged that

“[c]ontiguity has long been defined in annexation cases as tracts of land that touch or adjoin one

another in a reasonably substantial physical sense.” Id. (citing Western National Bank of Cicero v.

Village of Kildeer, 19 Ill. 2d 342, 352 (1960), disapproved of on other grounds by People ex rel.

County of Du Page v. Lowe, 36 Ill. 2d 372, 379-80 (1967); accord Geisler v. City of Wood River,

383 Ill. App. 3d 828, 848 (2008). After citing statutory interpretation principles, we found this

definition “well suited to determine questions arising under the Act.” Henry County Board, 278

Ill. App. 3d at 1067; accord Geisler, 383 Ill. App. 3d at 849. Another definition might “allow

municipalities to circumvent the Act’s legislative intent by creating TIF districts where physical

eligibility may not otherwise exist.” Henry County Board, 278 Ill. App. 3d at 1067; accord Geisler,

383 Ill. App. 3d at 849. Further, the touching requirement “ensures a municipality has properly

constructed a TIF district and is legitimately reaping tax increment financing benefits under the

Act.” Henry County Board, 278 Ill. App. 3d at 1067; accord Geisler, 383 Ill. App. 3d at 849. ¶ 29 Consistent with Henry County Board’s contiguity definition, we recognize “point-to-point

touching or cornering is generally not sufficient to satisfy the requirement of contiguity.” La Salle

Bank National Ass’n v. Village of Bull Valley, 355 Ill. App. 3d 629, 637 (2005); accord In re

Annexation to the Village of Downers Grove, 92 Ill. App. 3d 682, 685 (1981); see also People

ex rel. Freeport Fire Protection District v. City of Freeport, 58 Ill. App. 3d 314, 317 (1978)

(stating that validly annexed roads may lead to further annexations if the roads “form a new

boundary with the next annexation, [and do] not merely touch it in the manner of a ‘T’ or at a

corner”). As one court has noted, “point-to-point touching[ ] and cornering *** are merely a

subterfuge to reach outlying areas.” People ex rel. Village of Long Grove v. Village of Buffalo

Grove, 160 Ill. App. 3d 455, 462 (1987). ¶ 30 Based upon the deposition testimony of Lindwall, “the only way” to get contiguity to parcel

B from parcel A was by jumping the 234.9 foot portion of the natural gas right-of-way. Thus, this

appeal boils down to one question—does the Act allow the City to “jump” the 234.9 foot portion

of the natural gas right-of-way, located in the unincorporated “excluded area” of the TIF district,

to establish contiguity between parcels A and B? For the reasons discussed below, we conclude

the answer to this question is “no.” ¶ 31 Initially, the circuit court, presumably in reliance on Will County maps contained in the

record, found “over 400 feet of contiguity” connecting parcels A and B. In doing so, the circuit

court failed to account for the difference between the boundaries of parcels A and B and the

boundary of the TIF District. When this difference is considered, it becomes clear that this case

turns on the City’s inability to “jump” the 234.9 foot portion of the natural gas right-of-way. *11 ¶ 32 We are not persuaded by the City’s argument that “contiguous” has the same meaning

under both section 11-74.4-4(a) of the Act, at issue here, and section 7-1-1 of the Illinois Municipal

Code, pertaining to annexations. The City makes this argument because the first paragraphs of

section 11-74.4-4(a) of the Act and section 7-1-1 of the Illinois Municipal Code both use the Henry

County Board definition of “contiguity” for “contiguous.” See 65 ILCS 5/11-74.4-4(a) (West

2016); id. § 7-1-1; Henry County Board, 278 Ill. App. 3d at 1067 (citing Western National Bank

of Cicero, 19 Ill. 2d at 352); accord Geisler, 383 Ill. App. 3d at 849. ¶ 33 However, the City’s position requires us to ignore the second sentence of section 7-1-1,

which expands “contiguous” to mean, “[f]or the purposes of [that] Article[,] any territory to be

annexed to a municipality *** notwithstanding that the territory is separated from the municipality

by a *** public utility right-of-way.” See 65 ILCS 5/7-1-1 (West 2016) (Emphasis added.); but cf.

id. § 11-74.4-4(a). The City asks us to read this sentence into section 11-74.4-4(a) so it can

establish contiguity between parcels A and B by “jumping” the natural gas right-of-way. This step

would require a “depart[ure] from the plain language of [the] statute by reading into it exceptions,

conditions, or limitations that the legislature did not express.” See Skaperdas v. Country Casualty

Insurance Co., 2015 IL 117021, ¶ 15. If our legislature intended “contiguous,” as used in section

11-74.4-4(a), to include parcels separated by a public utility right-of-way, as in section 7-1-1 of

the Illinois Municipal Code, it would have said so. ¶ 34 Since our legislature did not signal such an intention, we hold the City cannot “jump” the

natural gas right-of-way to establish contiguity between parcels A and B. 3 Since there is no other

3 It is telling, as the board notes, that section 11-74.4-4(q) of the Act expresses an intent to allow “one redevelopment project area” to “[u]tilize revenues *** received under [the] Act *** for eligible costs in another redevelopment project area that is: *** separated only by a public right of way,” but does not express an intent to allow the establishment of one redevelopment project area with parcels separated only by a public right of way, such as a public utility right of way. See 65 ILCS 5/11-74.4-4(q) (West 2016).

basis for contiguity between those parcels, we also hold the TIF District is not contiguous under

section 11-74.4-4(a). 4 Thus, we reverse the circuit court’s contiguity finding and grant of summary

judgment to the City. ¶ 35 By virtue of these holdings, we need not consider the School Board’s issues pertaining to

the Act’s procedural requirements. However, we observe the City’s casual approach towards its

procedural obligations and the JRB. Respectfully, a more deliberate “come to the table” approach

by the City under the Act could have avoided many of the issues present in this appeal. ¶ 36 III. CONCLUSION ¶ 37 The judgment of the circuit court of Will County is reversed. ¶ 38 Reversed. ¶ 39 JUSTICE HOLDRIDGE, specially concurring: ¶ 40 The majority concludes that the City cannot “jump” the natural gas right-of-way to

establish contiguity between parcels A and B. I believe we do not have to reach the issue as to

whether the City can “jump” the gas right-of-way to establish contiguity because parcels A and B

are physically separated by a parcel of land beyond the gas right-of-way that is excluded from the

TIF district, therefore preventing contiguity. ¶ 41 The focus in this case is on the 234.9 foot natural gas right-of-way that exists on the border

of parcel A and the parcel identified as “Utility.” The “Utility” parcel is associated with property

index number (PIN) 11-04-20-300-008-0000. The Will County Treasurer’s office website states

that the tax bill for this PIN is mailed to Natural Gas Pipeline. See Will County Treasurer,

http://willtax.willcountydata.com/maintax/ccgis52?1104203000080000 (last visited July 22,

2020) [https://perma.cc/X2C6-AC33]. We may take judicial notice of the Will County website

4 We expressly reject the notion that our holding invalidates any of the City’s prior annexations.

because, as a government website, information contained therein is sufficiently reliable. See

Kopnick v. JL Woode Management Co., 2017 IL App (1st) 152054, ¶ 26. I note that referencing

the “Utility” parcel as a right-of-way is a misnomer because it appears the utility company owns

the parcel in fee simple. ¶ 42 Nonetheless, it is clear that the “Utility” parcel is excluded from the TIF District and has

fee simple ownership separate from parcels A and B. Even if the City could “jump” the natural gas

right-of-way that exists on the border of parcel A and the “Utility” parcel, the City cannot establish

contiguity with the remaining land within the “Utility” parcel that stretches beyond the gas right-

of-way up to parcel B. The discussion of “jumping” appears to be nothing more than a red herring.

No. 3-19-0225

Cite as: Board of Education of Richland School District No. 88A v. City of Crest Hill, 2020 IL App (3d) 190225

Decision Under Review: Appeal from the Circuit Court of Will County, No. 18-CH-19; the Hon. John C. Anderson, Judge, presiding.

Attorneys Howard C. Jablecki, Gregory T. Smith, and Scott E. Nemanich, of for Klein, Thorpe & Jenkins, Ltd., of Chicago, for appellant. Appellant:

Attorneys Mary J. Riordan, of Mary Riordan, Ltd., of Chicago, and Scott for M. Hoster, of Castle Law, of Joliet, for appellee. Appellee: