Malec v. City of Belleville, Illinois

MALEC,Plaintiff-Appellant, STEPHEN T. v. THE CITY OF BELLEVILLE et

al., Defendants-Appellees. Fifth District No. 5 — 09—0533 Opinion February filed 2011. Rabin, EC., Myers Diego, Myers Hanken,

John M. and Nick both of & San Livingston, Livingston Firm, Springfield, Penni S. of Law of Fairview appellant. Heights, for Sprague, Sprague Urban, Belleville, J. & appellee

Robert Belleville. Winters, Bradley Sonnenschein, Rosenthal, Louis, A. Nath & of St. LLI?

Missouri, GMCR, LLC, appellees Development, and THF Green Mount LLC. court, judgment

JUSTICE WEXSTTEN delivered the with opinion.

Presiding Chapman Justice concurred in judgment opinion. dissented, opinion. Spomer

Justice

OPINION Malee, declaratory Stephen seeking filed an action plaintiff, injunctive defendants, THF Mount against relief Green (the GMCR, Developers), LLC, LLC Development, (the court. The County circuit Belleville, City), in St. Clair (1) tax-increment-financing district the formation of a challenged suit (TIF District) Redevelopment Tax Increment Allocation pursuant Act) (65 (TIF Code the Illinois Act —d i vision 74.4 of (West (2) 2006)), the formation of et seq. ILCS 5/11 — 74.4—1 District) (Business pursuant District Carlyle/Green Business Mount (Business District Divi Code Municipal of the Illinois division 74.3 sion) (3) (West 2006)), of the use et and seq. ILCS 5/11 — 74.3—1 development project to generated by the sales taxes municipal improvements Developers regional for infrastructure reimburse under section agreement an incentive pursuant made to economic (West (65 ILCS of Code 8 — 11—20 5/8 — 11—20 2006)). for trial, judgment court entered a After a bench the circuit the circuit court’s order. all the counts. We affirm defendants on

BACKGROUND 2003, of Developers began evaluating In corner Green Carlyle shopping for a new Mount Road and Avenue Belleville acres in size approximately center. TIF area measured 150 project The ap- parcels: undeveloped parcels totaling and contained three two The proximately parcel 130 acres and one with rundown structures. 18 and five latter included acres contained parcel approximately farm which were buildings, structures —one mobile home and four purchased grouped together parcel. Developers on 2.5 acres of the $50,000 for a of mil- approximately per $7.5 acre total 2004, negotiated Corp., with and Cen- Developers lion. In Centex property totaling ap- tex of the Corp. purchased portion northern units, leaving Developers proximately 83 acres for residential and approximately project private 64 acres of the area for commercial development. retail Land

Subdivision of tax parcels corresponding TIF area’s three had 00—009, 09—19.0—100—005, identification numbers of — 1 09—19.0 009, 010, 005, respectively). and Two (parcels and 09 — 19.0—100—010 by deeds 009 010 owned Charles from 1937 show that were 1958, Biebel deeded Biebel in 1937. In and Hilda Edward Charles 005, land south of 009, 010, along another tract of parcels 1961, Avenue, 27, Carlyle joint to themselves as tenants. On December Biebel, half widower, conveyed an eastern of Charles then a (the east 75 acres Carlyle totaling approximately area south of Avenue 19) daughter his quarter of section one-half of southwestern In Carolyn Febru- granddaughter, Jean Biebel Moore. Moore 1968, ary Biebel, Charles with Jean Biebel Moore and Edward Moore guardians Moore, as the Carolyn conveyed the southwest quarter 19, Carlyle section the area south of Avenue (approximately acres), Chicago Title and Company. Trust December Charles conveyed Biebel the west 20 acres quarter southwest quarter 005), (parcel northwest section 19 portion a western Carlyle Avenue, land north of along with the set of farm buildings old, years more than 60 5, 1973, to Jean Biebel Moore. January On (a Biebel conveyed Charles portion eastern of the land part quarter southwest fractional of section 18 and a part the northwest acres) quarter of section which amounted to more than five located 010) Carlyle north of (parcel Avenue Jean Biebel Moore.

Parcels 009 and 010 the same tax kept identification numbers they from until conveyed the time family the Moore Developers in 2005. conveyance, At the time of the they parcel ownership Carolyn 005 were under the Moore Miller and Ernest Amann, Miller. Harold him, and his father parcels before farmed these years single farm, approximately land, as a pursu- 143 acres of ant family. to an oral lease with Moore Amann farmed the land profitably Developers, having purchased until property, terminated his lease October 2005.

Underground Mine 2005, Throughout Developers 2004 and negotiated with Lowe’s potential Walmart as tenants of the area. Both Lowe’s and satisfactory Walmart indicated concern regarding the remediation of underground an portion mine located under the property. of On 4, 2004, June Developers preliminary obtained a geologic site consultant, evaluation of geologic from its Midwest Test- 4, 2004, ing. In its June explaining preliminary analysis, letter its Testing Midwest noted that the commercial site roughly a 56-acre rectangular-shaped parcel proposed development included a strip shopping composed center of anchors. The Lowe’s Walmart preliminary evaluation, geologic Developers’ site addressed (an officer, principal equity Alan in THE Green Bornstein holder that, LLC), Development, relayed maps Mount from the according Geological Survey, Illinois the site probably underlain (mined by abandoned coal mine Company) the Little Oak Coal at a depth 120 to of 150 feet. Testing subsidence, collapse, “[t]he

Midwest noted that risk of of the mined principal [the] [was] voids beneath site concern of areas,” constructing por- over mined is a similar “[t]here risk that, immediately beyond mapped tions located undermined area subsidence coal, be influenced on intact would although located surface- areas,” that one occurrence adjacent undermined reported. had been subject property near the reflected subsidence following: Testing stated the letter, Midwest also the evaluation surround- knowledge, development in the “[T]o the best our without accomplished has years or so ing past area over the the risk have assumed Obviously,many owners mine remediation. versus the cost of remediation of subsidence concluded Additionally, subsid- high remedial action. risk is too to warrant and, they have region in the have been isolated when ence events occurred, they very tiny percentage of the structures affected a have exceptions overlying abandoned mines. Known and infrastructure Trail, Lincoln Depot Home on Square, possibly, are the Clair St. & recently, Appliance the American TV Store Green and more O’Fallon, approximately in one mile north of Mount Road subject site. 1) undermining proceed- include: regarding the

Options apparent 2) undertaking a exploration, more detailed ing without further maps through state and local search available and data various 3) have conducting evaluation. We agencies, and a mine subsidence you have you and we understand options discussed these site your budget at this time for grouting elected to include costs development.”1 Malloy, previous testimony of Michael

According to trial City, planning director of economic for 4, 2004, Midwest Test- copy did the June letter from not receive 2005, TIE ing. city eligibil- an initial approved On June council Norber, City’s TIE consult- ity study by Eugene was the prepared who (EDR). The president Development ant and of Economic Resources 2004, letter, Testing’s June eligibility study characterized Midwest stating follows: geological preliminary Inc. evalua- Testing, prepared a

“Midwest 16Í of State Route tion for located at the northeast corner Avenue) Belleville, (Carlyle and Green Mount Road in might determining geologic conditions that purpose Testing, reported by Midwest impact proposed development. As 4, 2004, ‘this site was Realty THE dated June Inc. a letter to coal, originally by the Little Oak Coal mined the Herrin No. 6 Little Oak formerly named Company.’ Green Mount Road was impact of such [Testing] Road. Midwest has determined from coal was mining activity require grouting of areas which will underground prevent col 1Grouting filling to involves mined-out voids lapses the surface. that can cause subsidenceat

extracted, or provide construct columns support additional for ” the coal ‘roof.’ trial, At the failing city Norber admitted to inform the council 4, 2004, about and, contents of June letter specifically, the statements mine being therein about remediation uncommon in the surrounding area. independently Norber admitted that he did not study required whether mine remediation was in the upon that he relied the Developers’ representation develop the project, there would have be to mine remediation. 1, July 2005,

On City’s submitted for the consider- Norber/EDR ation a TIF “Redevelopment contained, Plan” verbatim, 4, 2004, same characterization of the June from letter Midwest Test- ing as had been set in eligibility study. forth

In a mine study subsidence submitted Testing, Midwest dated July Testing Midwest noted that the conditions the Herrin seam, 6 coal Mine, No. and the underlay associated Little Oak which proposed area, explored by drilling were further borings 30 test at the locations shown. In the report, Testing Midwest stated follow- ing: presence of

“The a mine a developed poses beneath site the inher- ent collapse, ground risk of a mine can result in surface *** (i.e., subsidence collapse drop). sudden or site, judging past reported

At this from subsidence events in the area, trough likely and, subsidence be would form if it oc- curred, would be evident at the dish-shaped depressions. surface as period mining may The time between vary subsidence from days decades, may large hours or subsidence event one occurring movement a series of smaller over movements time.

* * * The mine borings, coupled void information obtained from with video, suggests degradation the downhole degree that some mine already has occurred over most of the site. Surface subsidence has reported region at several locations elsewhere similar conditions.

* * * borings, on conditions opinion Based encountered it is our subsidence, ‘squeezing’ the mine has void occurred. Squeezing portions collapse occurs when of mine is indica- susceptible collapse. tive of a mine that is to further

sji ijt tfi On risk negligible-slight-moderate-severe, judge scale of we majority category of this at the site moderate subsidence potential for pillar conditions. With event under current collapse,it our deterioration, independent roof is and associated end of the moder- upper into the the risk level moves opinion that (estimated years). building 50at range the life of the ate within Bel- portions in the undermined development The extent O’Fallon) Heights and (e.g., Fairview surrounding and areas leville or are within the developed areas overlie significant. These coal mines.” abandoned of influence of a number of potential zone “many have assumed Testing reiterated that owners Midwest versus the cost of remediation risk of or concluded that the subsidence and that “subsidence high warrant remedial action” risk is too occurred, and, they have have region events in the been isolated when very tiny structures they percentage [sic] have effected Testing again overlying abandoned mines.” Midwest infrastructure past surrounding stated that “the in the over years has mine remediation with accomplished or so without of,” others, facility, mine exception among the American TV for which geotechni- completed Testing and Midwest lead grouting was consultant, concluding cal the risk was also the moderate as category. Testing Midwest further stated follows: opinion projected “It is that the current risk level for mine our suggests mitigation subsidence that risk measures should be minimum, specialty At a we that a considered. recommend contrac- specializes grouting tor who of subsurface mines be contacted voids, prepared filling and a the mine either cost estimate partially completely, facility.” beneath the from Testing options ranging “[d]o Midwest listed the available as within the nothing accept “[flully grout the risk” to mines eliminate the protection zone of influence of desired area of trial, At the testified that the also did Malloy subsidence risk.” Malloy study July 29, the mine dated 2005. receive subsidence its acknowledged City generally reports relied on EDR’s as respect it the TIF and findings sole basis for the that made with Business Districts. 16, 2005, intercompany

On December in an e-mail from Lowe’s expressed grout to review test geotechnical engineer, Lowe’s need grouting program should opinion results formed zone the Lowe’s include the mined within the influence areas road, Center, and front entrance ramps, Garden truck truck access driveway. “prudent” it to conduct an additional Lowe’s considered verify building. beneath the investigation the reserve area Study

Traffic Impact Crawford, (CBB), Bunte, transportation Brammeier traffic 10, 2005, engineers, impact study February prepared traffic dated evaluating the Green Mount Road/Carlyle Avenue intersection. In this study, CBB noted that the developed 147-acre site ap- would proximately acres commercial and 83 acres of residential development and that access to the residential and com- mercial provided sites would on both Illinois (Carlyle Route 161 Avenue) and North study Green Mount Road. noted CBB’s purpose “was forecast the gener- amount traffic that would be ated proposed development, impact evaluate upon adjoin- its ing system, road and determine the roadway need for traffic and/or improvements.” control (LOS) impact study noted, traffic “Levels of traffic service are

quantifiable flow, measures traffic which consider such factors as speed time, interruptions, and travel traffic safety, driving comfort, and convenience.” The impact study traffic noted that level C represents a roadway operating approximately at its capacity 80% of and that D level is considered acceptable peak period conditions in urban areas.

In impact study, the traffic existing CBB concluded that the operat- ing at conditions the intersection acceptable the during morning peak operations degraded considerably hour but during the afternoon peak hour and that right-turn “an exclusive southbound lane [was] already provide needed at the to acceptable intersection conditions for existing study, traffic.” In the traffic impact CBB rated the northbound approach intersection, the approach southbound to the intersec- tion, and the explained intersection overall as LOS F. As in the “Highway Capacity Manual,” prepared Transportation Research Board of the National and Academies offered into evidence trial, at the F LOS unacceptable is considered most drivers and often with oversaturation, occurs when flow arrival rates exceed the capacity lane groups. I

Phase Environmental Assessment In I a “Phase prepared Environmental Assessment” Midwest Testing Developers, 17, 2005, for Walmart and the dated August Testing dumping Midwest noted “minor and yard household waste *** portion limited to the existing western site near the mobile home Testing and barns.” Midwest found no evidence of hazardous storage. Testing waste disposal concluded that Midwest its recognized investigations “revealed no evidence of environmental subject property.” conditions in connection with the TIF Ordinances 2006, January 11, On City property qualified found that the (65 (West 2006)), under TIF Act seq. ILCS et 5/11 — 74.4—1 (West (65 2006)), et seq. ILCS District Division Business 5/11 — 74.3—1 in the agreement provisions the economic incentive and 2006)). (West Accordingly, the Code ILCS 5/8 — 11—20 Ill., (Belleville, 6814, 6815, and 6816 City enacted Ordinances (eff. 2006)) TIF (collectively, 6814, 6815, 6816 Nos. Jan. Ordinance ordinances), District, adopted approved TIF and created the Plan), ap (Redevelopment Redevelopment TIF Plan”2 “Revised Developers financing to reimburse the tax-increment-allocation proved costs the TIF District. project redevelopment (eff. (Belleville, Jan. Ill., Ordinance No. 6814 In Ordinance 6814 11, 2006)), Mount Road Carlyle found Avenue/Green not been blighted and had redevelopment project as whole growth development through by private investment subject to developed reasonably anticipated to be enterprise would City adopted Plan. adoption Redevelopment without dated October 2005. approved Redevelopment Plan Plan, through EDR, found that Redevelopment City, area, the five blighted” TIF “improved portion parcel deterioration, obsolescence, structures, dilapidation, included rundown vacancies, code, below minimum a lack of ventila- structures excessive facilities, utilities, tion, land light, sanitary inadequate deleterious layout, community declining equal- use or a lack of total planning, ized assessed value. regard Redevelopment undeveloped parcels,

With to the two parcels portion Plan described this as vacant because within Plan, In the found Redevelopment area had been subdivided. because, information “blighted” pursuant by Resources, the Illinois State provided Department Natural Inc., coal Testing, mining and Midwest had Geological Survey, redevelopment project portion proposed conducted beneath Plan, City Carlyle Redevelopment area north of Avenue. extent and meaningful concluded that factor was this redevelop- portion reasonably throughout distributed the vacant ment project area. City, Redevelopment Plan, through Norber

Specifically,in the EDR, indicated, [Testing] has determined “Midwest from activity of areas impact mining require grouting of such will 2“ ‘Redevelopment comprehensive plan’ program means the municipality by payment intended redevelopment for redevelopment project to reduce those the exis costs or eliminate conditions qualified redevelopment ‘blighted area’ tence of which aas 74.4—3(n) (West 2006). ***.” 65 ILCS 5/11 — extracted, which coal was or construct provide columns to additional ” support for the coal ‘roof.’ Pursuant to the Redevelopment Plan, City found that the abandoned coal mine beneath the northern and portions eastern of the site “[vjirtually rendered the entire Area north *** Carlyle Avenue at risk due to the fact that subsidence can occur beyond the area actually mined.” Pursuant to the Redevelopment Plan, City further found that “the unused impairs mine the sound growth substantially all of the Area.”

In the Redevelopment Plan, the City, through EDR, concluded that the redevelopment project area on the whole had not been growth and development through by private investment enterprise and would not reasonably be anticipated to attract new development without the adoption of the Redevelopment Specifically, City Plan. concluded that the area was “characterized both disinvestment and neglect,” that “all vacant, structures obsolescent, deteriorated, [were] code,” and below minimum and that “[Reinvestment within the Area [had] been limited many decades.” The further concluded the public infrastructure, including public rights-of-way, was inadequate due to functional obsolescence and significant por- tions of the area consisted of abandoned coal mines.

The City, through EDR, concluded in the Redevelopment Plan as follows: “Given the lack of investment within the Area [and] the $19.8 million budgeted to implement remediation, the mine infrastructure improvements, management, storm water and other TIE eligible expenditures, it is clear that ‘but for’ the use of tax increment financ- ing the Area will not be redeveloped.”

In the Redevelopment Plan, City, through EDR, also concluded as follows: infrastructure,

“Public including public rights-of-way, inadequate is due Significant to functional obsolescence. portions of the Area consist of abandoned coal mines. municipal Absent a commitment including of this updating public area — infrastructure, and remediating posed hazards the unused private mine—the likelihood growth investment and new remote.” Creating

Ordinance 6818 the Business District (Belleville, Ill., Pursuant to Ordinance 6818 Ordinance No. 6818 (eff. 11, 2006)), passed day ordinances, Jan. the same the TIE District, created the approved “Carlyle/Green Business Mount (Business Plan) Development Business District Plan” District EDR, prepared by imposed business district tax to reimburse the Developers project redevelopment pursuant costs to section 74.3—3(12) Code ILCS 11 — 5/11 — 74.3— 2006)). 3(12) (West depicted In Ordinance of the TIF District District, part is a of the Business boundaries redevelopment TIF (the 150-acre approximately half of the southern area) of two in size and consists 70 acres approximately and is parcels. 74.3—5(3) Code of the Illinois

Pursuant to section 11 — 74.3—5(3) (West following 2006)), made the ILCS 5/11 — Plan: District forth in the Business findings, on the facts set based that, area; by reason of blighted District is a “The Business unsanitary layout, inadequate street predominance of defective or or the conditions, improvements, site deterioration of or unsafe by fire or endanger life or conditions which existence of factors, an causes, of those constitutes combination other health, safety, liability public or a menace economicor social morals, and use. in its condition or welfare District, whole, subject to has not been

The Business on by private enterprises growth developmentthrough investment reasonably anticipated developed to be without or would Belleville,Ill., Ordinance Plan.” adoption of the Business District 2006). (eff. Jan. No. 6818 1, 2005, Plan, July EDR noted

In the Business District dated by property, bounded on the north vacant the Business District was Avenue, YMCA, Carlyle and on by on the south east of the Business District Mount Road. In the section west Green the district EDR noted that involving blight, Plan the basis for 010) parcel 005 and 18.75-acre parcels (parcels contained two — an and four farm build structures, including one mobile home with five purposes. agricultural ings, unimproved parcel and a 42-acre used that, its two- Plan, EDR concluded In the Business District accom- adequately Mount Road could not configuration, lane Green volumes, Department traffic which the modate current 16,300 day. EDR 15,500 per vehicles Transportation reported as level of service study identified the roads’ impact noted that the traffic F traffic volumes peak F the afternoon hour and that level during at as “breakdown and are classified capacity exceed the intersection removed, roadway must EDR also noted that an interior flow.” redevelop- inadequate to accommodate disrepair because it layout inadequate Thus, that the street ment. EDR concluded Business within the impediment represented District. unsafe Plan, unsanitary or EDR found the Business District failed to on the

conditions, noting that all five structures district was virtually the entire building requirements, meet code subsidence, to mine an unsafe condition that endangers property itself, and that the level of service F identified in the traffic impact study connoted traffic congestion that had reached unsafe during levels the afternoon peak hours. Plan, the Business District EDR found deterioration of site

improvements, noting major defects of the five structures in the district. EDR also found the existence of conditions which endanger property life or by fire or other regard causes with to the structures and noted that the undermining and potential subsidence within the Business District was also unsafe endangering condition property. EDR concluded that the combination of the factors above constituted an liability economic or social or a menace to the public health, safety, morals, or welfare in its condition and use. EDR concluded that the Business District on the whole was not growth and development through private investment and would not reasonably be anticipated to be developed without a Business District Plan.

Ordinance 6819 Pursuant (Belleville, Ill., Ordinance 6819 Ordinance No. (eff. 11, 2006)), Jan. passed January 11, 2006, also on City noted (65 that it had authority under the Illinois Code ILCS (West 2006)) portion any to share a occupa retailer’s 5/8 — 11—20 tion occupation taxes and service generated by taxes a development project with the Developers. Accordingly, City authorized the use general revenues, sales tax in addition to the TIF and business financing, district tax Developers to reimburse the for project develop ment through costs an economic agreement pursuant incentive to section (65 8— 1 1—20 of the Illinois Municipal Code ILCS 5/8 — 11—20 (West 2006)). Pursuant Code, found, the Illinois Municipal alia, project inter that the area was vacant and had remained vacant year, for at least one development project cre expected job opportunities ate or retain City, within the and that without the “Redevelopment Agreement,” the development project would not be possible. Attached as exhibit B to Ordinance 6819 was EDR’s October findings, property which also indicated that the was vacant and had year. remained vacant for at one findings least EDR’s further indicated the following: portion Project’s currently

“For that area that developed: (A) buildings property longer on the comply no with current building codes. Field investigations by EDR and the in 2005 have shown ***005) developedparcel (parcel

that the five structures on the do building comply with current codes. less than remained (B) have property buildings at least one period or underutilized occupied significantly to enter thereby authorized that it was City concluded year. The Agreement.” Redevelopment into the Agreement

Redevelopment (65 Act the TIE under qualified Having found (West District Division 2006)), the Business seq. et ILCS 5/11 — 74.4—1 (West (65 2006)), and section 8 — 11—20 seq. et ILCS 5/11 — 74.3—1 (West 2006)), the ILCS Municipal Code the Illinois 5/8 — 11—20 Agreement.” “Redevelopment Developers executed City and the provide City agreed to Agreement, the Redevelopment Pursuant to incremen project from Developers for funding to the taxes sales taxes, municipal taxes, district business tal project. generated costs” “redevelopment Agreement, Redevelopment

In the actually incurred necessary costs defined as “all reasonable Redevelop- incidental to the costs such performing Work include, were to Project.” Those costs Redevelopment ment Plan or pursuant authorized for reimbursement alia, “all other costs inter Redevelopment Act.” In the Plan and the TIE Redevelopment the following definition: agreed to the Agreement, parties the Project All sums advanced Redevelopment Costs. “Reimbursable Reimburs- under Article II shall constitute by Developer this to the to be reimbursed Redevelopment Project Costs able provided Obligations issued as proceeds Developer from herein, permitted to the extent law.” to reimburse City agreed Redevelopment Agreement, In the Project Redevelopment “Reimbursable for the verified Developers to exceed in an amount not redevelopment project Costs” of the “Nothing Agree- in this as follows: $19,800 aggregate. in the It stated to reimburse Obligations obligate ment to issue shall TIE Act or to the pursuant not incurred Developer any cost TIE under the project cost’ qualify ‘redevelopment as a that does provide itemized Developers agreement required Act.” City to by the requested information invoices, receipts, or other cost project redevelopment as a qualified such cost confirm Agreement, Redevelopment II of the under the TIE Act. In article make a contribution things, to Developers agreed, among other $250,000. amount of in the Streetscape Program” City’s “Main Street 18, 2005, Developers from the dated October summary report, In a of the commercial a line item Bornstein, Developers listed as At $250,000. amount of Funding” in the “City development project $250,000 as “one of several trial, Bornstein characterized payments disbursements or that [the Developers] made for the for the community” to good be “a corporate citizen in community.” Bornstein testified that the Developers regularly sought to contribute to the community and asked the suggestions, for some and the City noted that it had been working on its redevelopment, downtown for which the Developers happy $250,000. to contribute the Born- stein testified that the Developers also made payments to local school districts for curriculum development. Bornstein testified that contribution Developers’ followed the intention of making long-term investment and being long-term participant in the community.

Pursuant to the Redevelopment Agreement, the Developers purchased the property, spent more than million to widen and $20 restructure Road, Green Mount Carlyle Avenue, widen rebuild and resignalize the Green Mount Road/Carlyle Avenue intersection, install and improve service, water gas, utilities, natural sewers, electric regional create storm water detention to the property serve and over it, 400 acres around part and remediate underground coal mine.

The Plaintiffs Action February 17, 2006, On plaintiff, a City as paying resident property and sales taxes levied City,8 filed a complaint, and thereafter an amended complaint, against the City and the Develop ers. The plaintiff sought an order invalidating 6814, 6815, Ordinances 6816, 6818, (Belleville, Ill., and 6819 6814, 6815, 6816, Ordinance Nos. (eff. 2006)). Jan. I plaintiffs count of the complaint, the plaintiff alleged that the formation the TIF District resulting and the tax increment financ ing violated provisions because, of the TIF alia, Act inter the land included within the TIF District did not qualify “blighted” as that 74.4—3(a)(West 2006)). term is defined in the TIF Act ILCS 5/11 — (1) Specifically, the plaintiff alleged that agricultural area of the TIF qualify District did not District, as “vacant” for inclusion a TIF (2) a producing farm field with an abandoned mine underneath did (3) not qualify as an “unused purposes Act, mine” for of the TIF the land would have developed the absence of tax increment financ 74.4—3(a) (West 2006). ing. See 65 ILCS 5/11 — previous appeal court, 8In a plaintiff, to this taxpayer we held that the as a municipality, standing challenge of a has municipality’s that exercise of tax (65 ing spending power under the TIF seq. Act ILCS et 5/11 — 74.4—1 (West 2006)) (65 Municipal and division 74.3 of the Illinois Code ILCS 5/11— (West 2006)) seq. making 74.3 — 1 et as well as its of an economic incentive (65 agreement pursuant Municipal section 8 — 11—20 of the Illinois Code (West 2006)). City Belleville, ILCS App. Malec v. Ill. 384 3d 465 5/8 — 11—20 (2008). referenced plaintiff complaint, plaintiffs In count II of the (eff. (Belleville, Ill., Jan. Ordinance No. Ordinance 2006)) to section pursuant tax of the sales alleged imposition (65 .3—3(12) ILCS Municipal Code of the Illinois 11— 5/11— 7 4 3(12) (West 2006)) of section 11 — 74.3— the provisions violated 74.3 — 5(3) (West 74.3—5(3) (65 ILCS Municipal Code of the Illinois 5/11 — 2006)) 6818, did District, created Ordinance the Business because 2006). 74.3—5(3)(i)(West “blighted.” as See 65 ILCS qualify not 5/11 — alleged that complaint, plaintiff II Specifically, in count li or an “economic “blighted cannot be a area” producing farm field ILCS Division. See 65 ability” by the Business District required (West 2006). 74.3—5(3)(i) alleged also plaintiff 5/11 — there District Division because Business District violated Business in develop not that the Business District would was reason to believe tax. See 65 imposition of a business district sales absence 74.3—5(3)(ii)(West 2006). ILCS 5/11 — complaint, plaintiff III referenced Ordinance count (eff. 2006)) (Belleville, Ill., and the Ordinance No. 6819 Jan. allege procedural

corresponding Redevelopment Agreement Redevelopment Agree defects approval substantive (65 Municipal ment 8 — 11—20 of the Illinois Code violated section (West 2006)), incen making resulting ILCS economic 5/8 — 11—20 general sales tax agreement, tive which allows the share alleged Developers, illegal. Specifically, plaintiff revenues with the to section producing pursuant that a farm field is not “vacant” (West Municipal 8 — 11—20 of the Illinois Code ILCS 5/8 — 11—20 2006)) $250,000 City by Developers, and that the to the payment bonus,” “signing which the characterized as a Division, Act, authorized the TIE District or section Business plaintiff prayed 8 — 11—20 of the Code. The enjoin circuit court declare all the ordinances invalid expending public carry from funds to out their terms. 24, 2009, ad- August following,

On additional evidence was duced at the trial. years property, he had farmed the

Amann testified that all the property. he on the Amann had not witnessed mine subsidence however, mine acknowledged, that he had witnessed subsidence area, i.e., next farm at had settled a house located issue acknowledged that he had sold about a foot and a half. Amann also subsidence, $12,000 an local had mine parcel, experienced acre, here, he had not and noted that the at issue on which subsidence, $50,000 an acre. yet seen evidence of mine sold for Amann testified that he at experienced no time traffic problems traveling that, when to the site. Amann testified other than the lack of code enforcement on the buildings they deteriorated, he did not society witness menace to property. located on the Amann testi- fied, however, home, to the north persons of the mobile had dumped “truckloads” of trash onto the property. Amann also acknowledged that redevelopment, during before a rain downpour, Avenue) (Carlyle State Route 161 experienced flooding.

Amann testified that in the previous years, ap- to 10 proximately occasions, four to five approached by he was a potential buyer property, if he asking was the Amann owner. development area, testified that he witnessed in the additions to the station, gas corner buildings, including new the credit union build- ing. Amann testified that the YMCA built its on the property approximately years ago. Greenwood,

Daniel geotechnical engineer/project manager who previously employed Testing, at Midwest testified that once surface, subsidence is observed at the judged risk is to be severe. opined, decay Greenwood “Once the mine begins occurs and the roof collapse such that arching begins you collapse have a propagates through surface, into exposed rock the soil and is at the point many at that sources of are in strain motion.” Greenwood testi- very fied that it becomes difficult and to terminate expensive subsid- begun ence once a site has to subside at the surface. Greenwood testi- Developers grouting fied that selected full saturation buildings surrounding and the immediate area. geologists,

Greenwood testified that in discussions with state vicinity, learned that a in the Testing Midwest site immediate north of site, had experienced subsidence event a farmer’s cross-examination, driveway. On testified a risk of a Greenwood subsidence, 12-inch like the one that occurred at a Grandpa local establishment, if Pigeons catastrophic, could be even fatal someone building collapsed. was in the when it Greenwood described the mine project properly in the area as abandoned and sealed. Greenwood used, explained being that because the mine was not he would consider it an unused mine. Carlyle parts

When asked whether Avenue and Green Mount they Road were within the zone of influence over the mine so that threatened, Greenwood stated that the northwest corner of Lowe’s, mine extended near west and that the mine extended to encroached under Green Mount Road Carlyle testified that he visited the the south Avenue. Greenwood in either build- previous site in the weeks and did not see crack two ing. he had seen or heard of Greenwood testified that never subsi- building grouted. dence in a that had properly that, Bornstein testified that he had advised Norber based on Testing’s Midwest agents information conversations with Lowe’s, Walmart and the site mine remediation. Born- require would however, acknowledged, study stein that before a subsidence had been completed, Developers they had determined that would include mine remediation costs in the development budget. Bornstein testified that the Developers purchased would not have area without remediation, mine explaining that a subsidence event caused values to decrease and would negatively Developers have affected the as the owners of the property. Bornstein testified that under the terms with, of the site development agreement Lowe’s, for example, Developers required to remediate the mine so that Lowe’s would be willing operate building to a on the site. Bornstein testified that paid Walmart for its mine remediation.

Malloy testified here, that before the proposed development no one expressed had in interest and no requested one had a building permit. Likewise, Eckert, Mark mayor who had been the Belleville since 2004 and previously a member of city council, testified that he was unaware of interest in building permits or interest in the area before the project at issue here. Mayor Eckert testified that the redevelopment site had remained empty since he was a young Mayor man. Eckert testified that Developers approached Malloy Mayor Kern in late 2003 or early 2004, indicating that looking Walmart was to build a supercenter, and the City made it clear that it wanted part to be a of the partnership to locate the supercenter in Belleville. Mayor Eckert Carlyle testified that the Mount Road Avenue/Green experienced

intersection a “fair amount of traffic” and that the road experienced flooding west of the YMCA toward the intersection with Mayor Green Mount Road. Eckert testified that proposed project area had also been the location spring sexual assault in the Mayor 2005. Eckert testified that he was also familiar with local mine events, subsidence including the incident at Grandpa Pigeons in Belle- ville. Mayor Eckert testified that he had property destroyed witnessed subsidence, mine including buildings. Mayor area school Eckert testified that subsidence issues City were addressed because the did not want to a development see that it relied on for sales tax have major subsidence event.

Mayor Eckert testified that at one time Southwestern Illinois Col- (SWTC) lege had issues, indicated there were storm drainage but SWIG changed YMCA their minds about the need remedy those is- Mayor sues. Eckert testified as follows: things changed that all one of the that was mentioned

“So when well, doing green space [for YMCA] now since we’re not all this on, anything going im- you any capital projects, do and we have well, process trying jump in start our mediately said we’re scape project project had started a with—a street downtown on about a 13 block area we that has turned downtown Belleville very And very expensive. It was that’s when out to be successful. Norber, Malloy and Mr. came Mr. Norber—not Mr. Mr. Bornstein [C]ity’sproject.” up with this contribution towards the included an evalu- responsibilities of EDR testified that his Norber the TIE Act and the eligibility ation of the areas to determine under Division and to review the area for economic Business District there no reason to agreement. incentive Norber testified that develop without assistance. anticipate expect would City put together TIE District was Norber testified this respondent induce and that had one project. its Norber request proposals, respondent and the built and the Developers 2005 he and the acknowledged April year and a half and that working had been on the acknowledged also had the land under contract. Norber Developers LLC, Development, preferred is a Walmart that THE Green Mount developer. of subsidence af- underground that an mine’s risk

Norber testified occurs, the land’s value value, in that once subsidence fects land however, that in the Green acknowledged, greatly. decreases Norber Corridor, along Mount Road north Mount Road the area Green develop- Shiloh, in there was a trend of residential Highway 64/40 undermined. ment, Mount Road Corridor is though even Green safety problem F a implicates that the LOS level of Norber testified ir- aggravated [and] act longer, people get “cars sit because as rationally.” Dr. expert testimony Ronald presented

The plaintiff geology program emeritus who instituted Yarbrough, professor is Yarbrough grouting University. Dr. testified at Southern Illinois Dr. event. experienced a mine has subsidence necessary only when Little above the limestone overburden Yarbrough testified that the extremely strong. Mine and beneath the Oak Coal construction would impact that the of surface Yarbrough Dr. concluded that, should a subsidence underneath negligible geology the surface. Dr. or be observed at occur, might impact it event in involved where he was that in the instances Yarbrough testified in the near he observed subsidence backfilling building, grouting or oc- occurred, subsidence and additional grouting vicinity after undamaged homes. to previously curred Department that the of Natural Resources Yarbrough

Dr. testified the term “unused mine” but instead refers purposefully does not use testified that there Yarbrough to a mine as “active” or “abandoned.” thing underground Yarbrough no coal mine. such as unused it from explained: “[W]hen we abandon a coal mine we seal off Now, a mine can be unused because people getting strip ever into it. being it’s a lot of mines that are used strip on the surface we have today.” other than something else mines Johnson, architect Theodore testified that plaintiffs expert, spent development manager he of his time as a for Costco 75% Wholesale, remaining consulting municipalities with the 25% letter, school into evidence a dated districts. offered 19, 2008, blighting November wherein that the factors opined Johnson dilapidation, obsolescence, deterioration, presence of structures code, vacancies, ventilation, below minimum a lack of light, excessive facilities, sanitary utilities were to the five inadequate specific composed structures which on the improved parcel. farmstead opined blighting relating Johnson factors to the structures were limited to approximately improved 2.5 acres of the 18-acre parcel. Thus, opined Johnson the seven factors were not to a meaningful extent and reasonably throughout distributed area, improved required TIE Act. analysis,

In his Johnson also evaluated the undeveloped two parcels used for commercial agricultural purposes. Johnson concurred that a portion of the redevelopment project area contained an abandoned underground mine below the surface of the farm fields. opined Johnson underground that the existence of the mine did not impair growth the sound redevelopment project area. Johnson noted that the occurrence of surface-reflected subsidence was extremely general limited in the area. regard

With to the TIE provision Act’s “but for” ILCS 5/11— 3(n) (West 2006)), report Johnson his noted that there had 74.4 — adjacent considerable investment in the private sector developers, including directly the residential subdivision west subject property, Mart, the Moto Realty, Community Strano Catholic & Bank, Greenmount Road Church of Christ located the southwest quadrant, directly and the YMCA property. opined east of the Johnson that mine remediation was not required for the to occur and that the redevelopment project area did not meet the “but for” provision of the TIE Act. regard Division,

With opined Business District Johnson the private driveway to the existing July 70-acre farmstead in was sufficient to serve the in present farmstead its condition and use existing adjacent Carlyle and that the Mount Road and Green Avenue Thus, capable serving property were in its use. he found inadequate layout” no “defective or street to find that the Business blighted. District was agreed buildings likely that the 2.5-acre farmstead

Johnson sanitary unsafe and lacked facilities but noted that this area represented only 3.5% of the total 70 acres of the Business District. thereby predominance that there not a opined Johnson improvements. opined deterioration of site Johnson also because in the and the region subsidence events were isolated intersection no safety, level classifications were not a determination of there was predominance “unsanitary or unsafe conditions” to find that the blighted. Business District was

Johnson testified that because the farmstead structures were region in limited to 2.5 acres and because the subsidence events isolated, of conditions predominance had been there was not a endangered regard life fire or other causes. With property (65 ILCS “but for” test of the Business District Division 5/11 — 74.3— 5(3) (West 2006)), have Johnson testified that the area would had, many adjacent adoption areas without the developed, Plan. a Business District for the economic incentive regard

With to the factors involved for commercial agreement property proposed Plan, that the was not opined the Business District Johnson contained a farmstead and was under cultivation vacant —it would reason- agricultural crops. Johnson also stated of an economic ably anticipated develop adoption without the development agreement. testimony findings report. trial reiterated his his

Johnson’s ground, Johnson a mine could be above When asked whether thought I got “An mine? me there. ground answered: above You’ve *** most mines were impression were[ ] I was under mines — underground.” Testing reports by Midwest

Johnson testified that he had reviewed 4, 2004, the June of subsidence and that indicating slight risk opinion. for his Testing formed the basis analysis prepared Midwest from Midwest Test- that, report based on the acknowledged Johnson testified that undermined. Johnson ing, parcel 60% of the 70-acre July 29, study dated Testing seen the Midwest subsidence he had not the site was in Testing judged that most of 2005, in which Midwest answering a subsidence event. category the moderate asked, excerpts reading after in which he was hypothetical question property, on the Costco should build report, the 2005 whether from “to Johnson Costco walk.” advise that he would testified Johnson to take would not want and is self-insured testified that Costco type. that risk of were overstated. factors blighting testified

Johnson illegal dump- predominance not a that there was Johnson testified the area within photographs noted the series although Johnson ing, in the area. dumped materials that were showing of the five structures report prepared the environmental noted Johnson also area where very small there was commented that Testing Midwest subject property. portion occurred on the western dumping had site, i.e., the on present the conditions testified that Johnson also liability in its an economic land, did not constitute agricultural condition. the Business within development regard growth

With not neces- District was that the Business District, testified Johnson testi- of the area. Johnson development sary growth for the future area, growth and there had been general fied that in the SWIG, YMCA, and various public investment —the private both Mount Road Corridor. occurring in the Green residential SWIG, subdivision, and the acknowledged that the Graceland Johnson of the Green quadrant in the southwest other located businesses YMCA, were intersection, other than the Road/Carlyle Avenue Mount not undermined. incen- to the economic findings regard with report

Similar to his qualify did not agreement, Johnson testified that tive was not vacant. sharing. sales tax Johnson testified develop- means void of testified, planning “In vacant Johnson land use instead, that, the site was ment, activity.” Johnson testified void of considered vacant. farm and could not be active commercial por- residential that the 80-acre at the trial revealed The evidence Develop- “Planned Unit developed as a being tion the land was (PUD). City in November was by the approved ment” The PUD for or had oc- planned mine remediation was for 374 residences. No site, notwithstanding Midwest portion curred on the residential portion in the residential risks Testing’s report that subsidence portion. to those in the commercial equal the site were judgment entered a 16, 2009, circuit court September On complaint. the amended all the counts of against conclusions. following findings and included the opinion circuit court’s allegations plaintiff’s complaint, count I of the Referencing that, regard found ordinances, the circuit court involving the TIP District, the evidence showed area of the TIP improved that the build- “blighting” factors: of more than 5 of the 13 existence ings were dilapidated, obsolete, standards, below minimum code service, without electric utility sanitary without utility service, sewer without gas utility service, natural potable without utility water service; that the parcel entire suffered from excessive vacancies and sanitary without utility service, sewer storm utility service, sewer natural gas utility service, potable utility service; water and that major intersection failing (i.e., was obsolete with a deleterious layout). The circuit court concluded that the blight factors were present to a meaningful extent reasonably distributed throughout the improved part of the area.

The circuit court concluded that the commercial farmland had been subdivided into more than three smaller tracts between 1950 and 1990 and was therefore “vacant.” The circuit rejected court plaintiff’s contention the land was to the recording requirements (West 2006)) of the Plat Act ILCS seq. et 205/0.01 and plat had not been properly certified, acknowledged, ap- proved, and recorded or filed in accordance with the Plat Act. The circuit court held that the land was considered vacant because it had that, subdivided and accordingly, it need not qualify also under the second method described the section.

The circuit court concluded that the 130-acre portion of the TIF District mine,” also “consisted of an unused noting that mine maps proved that the mine was more than reasonably throughout distributed part the vacant of the TIF District. The circuit court concluded that City did not abuse its discretion when it found that the sound growth of the TIF District area had been impaired by the mine.

The circuit court found that no development virtually no inter- est in development had existed for many decades and that the Developers were the only parties to respond City’s to the request for development proposals. stated, The circuit court “Decades of non- growth and non-development, finally by broken the enactment of ordinances that permitted private financing indispensable regional [,] infrastructure are compelling city confirmation of the council’s determination that the land would remain as it had been without the municipal assistance.” The court City concluded that the did not abuse its discretion when it found that had not occurred and was not reasonably anticipated to occur on the subject TIF without assistance and subject property that therefore TIF satisfied the Act’s “but for” test. regard plaintiff’s

With allegations involving the Business Division, District the circuit court found that blight conditions currently present. The circuit court found that there were problems that safety constituted a menace to in their current condi- code, that were below intersection structures failing and use: tion areas; illegal accessible; overgrown easily unsound, dangerous, The court property. endangered life that and conditions dumping; to had not been Business District that further found reasonably be it would that growth District Business of the the assistance without develop anticipated Division. involving the III in count allegations regard plaintiffs

With court noted circuit agreement, incentive economic (eff. 11, Jan. (Belleville, Ill., No. 6819 Ordinance Ordinance in the economic area involved 2006)), determined held that court The circuit “vacant.” agreement was incentive treatment delineate the did not Municipal Illinois Code although the relatively buildings and a no large part with that has correct conclu reached the buildings, had part smaller letter of the spirit and the and met both the sions on the any bearing have use did not held that a land’s Code. The court considered to that, therefore, may farmland vacancy analysis and defendants and in favor of the thereby found The court “vacant.” all the counts. on their behalf on judgment entered a

ANALYSIS TIF Act (West 2006)) became seq. et The TIF Act ILCS 5/11 — 74.4—1 City Canton People ex rel. January 1977. effective in Illinois on (1980). TIF Act is to Crouch, purpose v. 79 Ill. 2d condi blighted eradicate the means to “provide municipalities with further prevent areas so as by developing redeveloping tions the threat and to remove of these areas deterioration of the tax bases blighted morals, public health, safety, and welfare Education, District Pleasantdale School Board present.” conditions of (2003) 1004, 1010 App. Ill. 3d Ridge, Burr 341 Village No. 107 v. of 1994)). (c) (West TIF Act The 74.4—2(a), (b), (citing 65 ILCS 5/11 — by collecting conditions blighted to eliminate municipality enables a districts within taxing local from real tax increment revenues TIF District to fund diverting the revenues the TIF District and Education, District School Pleasantdale Board development projects. of 74.4—2(a), (citing 65 ILCS 3d at 1010-11 App. No. 341 Ill. 5/11 — 1994)). 74.4—3(t) (West (c), 11 — must municipality financing, a increment eligible To for tax be is a redevelopment project proposed the first establish that 2006). 74.4—3(a) (West land Vacant area. 65 ILCS “blighted” 5/11 — more unused of one or if the area consists may blighted be considered 632 74.4—3(a)(3)(A)(West 2006). mines. ILCS more one or 5/11 — (1)

unused be mines found to must existence be to a meaningful extent may so that municipality reasonably find that the (2) is clearly present factor within of the intent the TIF Act and reasonably throughout distributed part the vacant of the redevelop 74.4—3(a)(3) ment pertains. area to which it 65 ILCS 5/11 — (West 2006). The TIF Act provides also no redevelopment plan adopted municipality shall be unless a redevelopment finds project area on the has not growth develop whole and through by private ment investment enterprise would not reason ably anticipated developed to be without of adoption 74.4—3(n)(J)(1)(West 2006). redevelopment plan. ILCS This 5/11 — requirement commonly latter is referred to as “but for” test. a municipality approves findings When in an blight ordinance, a presumption municipality’s findings exists that the blight River, were valid. v. Geisler Wood 383 Ill. App. 3d (2008). overcome, It is the plaintiff’s burden to clear and evidence, convincing presumption city’s findings blight Geisler, were valid. Ill. App. appellate 3d at 850. An not court will finding set aside a trial court’s failed to meet his contrary weight burden unless it is to the manifest of the evidence. Geisler, 383 Ill. A App. judgment contrary 3d at 850. circuit court’s to the manifest weight only evidence when an opposite conclu apparent unreasonable, sion is its findings appear when arbitrary, Volant, or not based on the v. Bazydlo evidence. 164 Ill. 2d (1995). 207, 215 plaintiff argues misrepresentations that various made proof

defendants should shift burden of to the defendants and the presumptive power legislative findings. remove Specifically, alia, plaintiff argues by, that the ordinances induced inter (1) following TIF misrepresentations: eligibility study the TIF and the Redevelopment Testing’s Plan’s mischaracterization of Midwest June (2) 4, 2004, letter, City regarding Norber’s failure to inform 4, 2004, June letter statements therein about mine remedia- (3) being uncommon, the alleged tion contradiction between Norber’s undermining, congestion, “[t]he conclusion that extensive traffic dumping, easily accessed deteriorated and unsafe site improve- ments, conditions, problems attendant to these constitute to safety menace in their current condition and use” and the conclu- “no sion in Phase I Environmental Assessment that there was (4) conditions,” recognized alleged evidence environmental regarding in the Business District Plan the unsafe mischaracterization study at the when the CBB traffic did conditions intersection so state. explicitly

633 Developers’ that neither the the record and find have reviewed We level intentional to the City’s nor conduct rose conduct fraud, plaintiffs suggestion reject we misrepresentation basis. of review on that a different standard requires this case

Unused Mine Act, legislature TIF in the plaintiff The contends mines, fac- blighting features, strip as only such as designated surface intend did not legislature land and that the agricultural tors also plaintiff factor. The blighting mine as underground include an 100 mine more than there is an abandoned though that even submits of an farm, does not “consist” the farm producing feet below the say contends, mine.” makes no sense “[I]t The plaintiff “unused feature mine, ‘consists of a when dominant property here mine, rather underground the closed but is not working farm on the surface.” there is statutory interpretation and

Because this issue involves resolved, novo. See review this issue de question no fact to we Geisler, 383 Ill. 3d at 839. App. following: supreme

The court has stated the give ef statutory interpretation “The rule of is to fundamental A court legislature. fect to the intention of the first looks indica language words of the statute. The of the statute is the best clear, statutory legislative language tion of the intent. is When interpreta given it must be effect without resort to other tools of statute, proper a court to interpreting tion. it is never depart language reading exceptions, into a plain from statute limitations, clearly expressed or conditions which conflict with legislative County Highlands, rel. intent.” Knox ex Masterson v. (1999). L.L.C., 546, 188 2d 556 Ill. intent legislative plain Because the indication of is the best dictionary used, may ordinary language we refer to a meaning phrase. undefined meaning to determine the otherwise word (2007). Dictionary Fort, People App. v. 373 Ill. 3d 885 Black’s Law coal, ores, from “mine” excavation in the earth which “[a]n defines by digging mining are or other mineral substances removed or other (6th Dictionary 1990); ed. also Web methods.” Black’s Law 994 see (2003) (“mine” made large “a excavation Dictionary ster’s New earth, ores, coal, deposit in the from etc.” or “a extract etc.”). “not ore, coal, Dictionary defines “unused” as Webster’s New (2003). Dictionary in use.” Webster’s New unused, mine credulity underground It strains to characterize the meaning mine” as falling plain in this case as outside “unused in the TIF to include “domi- used Act. seeks the word statute, nant” in arguing that “the dominant feature of the mine, is not the closed underground working but rather the farm on state, however, surface.” statute does not so and we have no right to read into a statute words not found therein. See Ha (1959). gen v. Island, 2d Rock 18 Ill. We therefore reject argument. the plaintiffs Vacant Land plaintiff contends that and the circuit court improperly that portion concluded the farmland the TIF of District was through vacant blighted, subdivision and therefore that the City and the Developers improperly failed to file a plat of subdivision before approving District, that, the TIF they and even if not required so, do the farmland was under common use control and when the TIF formed, District negating any land subdivision of the intrafam- ily dating deeds back to 1937. statutory

Because issue interpretation this also involves and there question resolved, is no of fact to be we circuit review the court’s Geisler, resolution issue of this de novo. 383 Ill. 3d at App. 839. The TIF in provides, pertinent part, Act as follows: “(v) (a) As in of Act, used subsection Section of 11 — 74.4—3 this

‘vacant any parcel parcels land’ means or of combination of real commercial, industrial, without buildings and residential which has not been used agricultural purposes for commercial years prior designation within redevelopment project 5 to the area, parcel park in an unless included industrial conserva subdivided; parcel tion area or the if provided has been that parcel larger of a part tract has been divided into 3 or accepted recording during more smaller tracts that were for period parcel from 1950 to then the shall deemed to have subdivided, proceedings been and all of the municipal actions ity any respect previously taken in that with ap connection proved designated redevelopment area project or or amended hereby are redevelopment hereby validated and legally purposes declared to sufficient for all of this Act. For only purposes of this Section and for land to the subdivi Act, requirements sion of the Plat land is subdivided when the original Project plat proposed Redevelopment Area or certified, properly acknowledged, thereof portion relevant has been in approved, recorded or accordance the Plat Act filed with plat, if preliminary any, subsequent phases proposed Project relevant thereof has Redevelopment portion Area or in properly applicable and filed accordance approved with 74.4—3(v)(West municipality.” 65 ILCS ordinance 5/11 — 2006). part or Dictionary por- “[a] in as defined Black’s Law “Parcel” is possession of land in the land,” contiguous quantity tion of “a of, owner,” by, land owned contiguous possession in quantity “[a] or company.” person claimant or recorded as of the same 1990). (6th of land” is defined Dictionary Black’s ed. “Tract Law land, greater lot, Dictionary piece parcel in “[a] Black’s Law dimension, itself, any precise not size, importing, or less the term Law large piece of land.” Black’s though generally term refers to (6th 1990). “synonymous ed. “Tract of land” is Dictionary 1492 to contiguous does reference to size but parcel of land and not have 1990). (6th Dictionary Black’s ed. quantity of land.” Law under the TIF parcel qualifies Whether the here as “vacant land” This section depend Act on how the land was controlled. does clearly parcel means a plainly provides that “vacant land” has been the deeds evidence demonstrate subdivided. Because had been parcel larger was a of a tract that divided part relevant dur accepted recording into or more smaller tracts that were three ing parcels are deemed have period from TIF pursuant been subdivided and therefore “vacant” Act. See 74.4—3(v) 2006). (West 65 ILCS 5/11 — argues unaccompanied by that “recordation a deed 3(v) plat purposes cannot be a ‘subdivision’ for of Section of the TIF

Act.” also when TIF plaintiff argues The that ordinances were land adopted, if the been subdivided to the recorded pursuant even had deeds, certified, had not been plat “properly nevertheless acknowledged, approved, and recorded or filed in accordance with the 74.4—3(v) Act,” Plat in of TIF Act. See violation 65 ILCS 5/11 — (West 2006). (West 2006); 765 ILCS 205/1 that the relevant were never

The defendants counter subdivisions of Act requirements to the subdivision the Plat because the “[t]he Plat Act an or of provides exception division subdivision land into or tracts of 5 acres or more in size which does not parcels 205/1(b)(1) involve or any new streets easements access” ILCS (West 2006)). this argue exception applied The defendants to each four subdivisions that occurred between 1950 which into or did not were subdivisions “tracts of 5 acres more” and “involve any new streets or easements of access.” provides, part, Act in follows: pertinent

The Plat as (b) “(a) this Except provided subparagraph as in otherwise Section, land it into or more whenever the owner of subdivides acres, surveyed it any which he must have parts, is less than plat by Registered Land and a subdivision thereof made an Illinois plat particularly describe and set forth all Surveyor, which must *** streets, public facilities alleys, ways for service ***. public [and] (b) (c) Except provided Section, provi- as subsection this apply sions of plat this Act do and no subdivision required is any following of the instances:

1. The or parcels division subdivision of land into or of 5 tracts acres or more in size does not involve or new streets (b)(1) (West2006). 205/1(a), access!.]” easements of 765 ILCS agree We with the defendants that the Plat Act apply does not the relevant land divisions of that occurred between 1950 and 1990 parcels size; because thus, involved divisions of five acres or more in “subject the land requirements was not to the subdivision of the 74.4—3(v)(West Act.” 2006); Plat See 65 ILCS 765 ILCS 205/1 5/11 — (West 2006). agree that, We further with the circuit court’s conclusion having qualified pursuant as subdivided to the deeds recorded between qualify need not under also the second method subdivision described in the See 65 section. ILCS 5/11— 3(v) (West 2006). 74.4 — The plaintiff next contends that if Act the Plat does not apply, land was under control common and use the TIF was when District formed, “negating any ‘subdivision’ of land intrafamily deeds dating back to 1937.”

While we recognize might evidence have supported inference that the was under land the common control and use family formed, the TIF plain when District “[t]he Biebel/Moore meaning language always guide [in used statute] safest any act[,] in construing to follow and the have no read right courts by express into statute found therein words not either inclusion 179). implication” (Hagen, 18 Ill. 2d The TIF fair at Act does not describe subdivision in terms of “use” “control.” TIF Act The parcel instead deems land subdivided “the of a part when larger tract that had divided more into 3 or smaller tracts accepted recording during from period 1950 to 1990.” land TIF clearly the criteria under Act meets considered subdivided and therefore vacant. Mine Impaired Redevelopment Sound Growth Area developed could argues have did,

residentially fact, develop and northern it in that the half of residentially. argues that, considering The that Bel- plaintiff most of undermined, municipalities County and other are leville St. Clair alike, commercial and mine noncommercial structures remediation Thus, argues development. plaintiff and not for the necessary rare impair the the of the growth redevelopment that mine did not sound area. growth mine impaired

The found that the abandoned City did court concluded area. The circuit redevelopment growth it that the sound found not abuse its discretion when court The circuit impaired by the mine. area had been TIF District undermined, only one corner, had was the been noted that this which had been serious there never developed, that had not that of four assistance, governmental and that even with development, interest development City’s request responded one only group as- concluded, municipal “Without Thus, the circuit court proposals. Division,] and TIF, [economic [the Business District using sistance have [,] never this would agreement] incentive assistance developed.” by the findings supported were City’s

The circuit court’s study Testing’s example, at trial. For Midwest evidence adduced Johnson, subsidence; risk had a moderate indicated that the mine that, moderate risk of considering the plaintiffs expert, testified subsidence, client not to build he have advised his commercial would site; that both Walmart and Lowe’s on the and Bornstein testified The impairment required the mine as an which remediation. viewed mine supported City’s that clearly evidence conclusion City and impaired growth redevelopment of the area. The the sound subject near the the consultants were aware of mine subsidence events subject property over the property including event north of — Likewise, that correctly mine. the circuit court concluded same mine, 1940s, impaired 100-year-old which had been unused since the result, redevelopment area. As a we growth project the sound findings circuit against cannot conclude court’s weight manifest of the evidence.

The TIF Act’s “But For” Test redevelopment on the contends that the area subject growth development through private invest- whole was farm in working profitable ment the area consisted of a because heavily year year. contrary, To the Amann invested after on the whole had not argue redevelopment defendants area through subject growth investment and the lack of develop failure private enterprise, shown its inquiry building permits requested property. 74.4—3(n)(J)(1) provides Section TIF Act as follows: 11 — redevelopment adopted municipality unless a plan “No shall be requirements: all complies following (1) redevelopment project finds municipality growth has not been the whole by private enterprise and would not reason- through investment 638 ably be anticipated developed to be adoption without the of the 74.4—3(n)(J)(1)(West2006).

redevelopment plan.” 65 ILCS 5/11 — Plan, In the Redevelopment City, EDR, the through concluded area, that the redevelopment project whole, on the had not been growth to development through by private and investment enterprise and not reasonably anticipated would be to attract new development the adoption without of the Redevelopment Plan. The City concluded that the area “is characterized both disinvestment and neglect,” that “all vacant, obsolescent, structures are deteriorated, “[rjeinvestment code,” and below minimum and that within the area [had] been limited many City for decades.” The further concluded that public infrastructure, the including public rights-of-way, was inadequate due to functional obsolescence and that significant por- tions of area the consisted of abandoned coal mines. In the Redevelop- Plan, ment City concluded, the “Given the lack of investment within Area, the the budgeted $19.8 million to implement the mine remedia- tion, improvements, infrastructure storm management, water and other eligible TIE expenditures, it is clear that ‘but for’ the use of tax increment financing the Area will not be redeveloped.” concluded, “Both public private anticipated activities within the Area will unable occur ‘but for’ tax assistance from incre- financing.” ment

As mentioned previously, City’s findings are entitled to a Geisler, presumption validity. of See App. 383 Ill. at 850. 3d plaintiff had the presumption by burden overcome this clear and Geisler, convincing App. evidence. See 383 Ill. 3d at We 850. will not set finding plaintiff aside the circuit court’s did not meet his burden, contrary unless the circuit decision court’s to the manifest weight Geisler, of the Ill. App. evidence. 383 3d at 850.

Although plaintiff argues growing and developing by Amann, as a farm leased find construing we that in plain Act, TIE language “growth and development through by private enterprise” “anticipation] investment develop [of] necessarily ment]” contemplates buildings improvements that increase the value and tax basis See property. Board Educa tion Community Robbins, School 218 v. High Village District No. (2001) (the 327 Ill. 3d 610 trial App. court concluded “ term “growth” in TIE ‘necessarily section 11 — 74.4—3 Act buildings contemplates improvements new the value increase ”). property’ recognize the tax basis of the While we that farming give is an important component economy, basic we must effect enactment, though of a plain language legislative even harsh, absurd, Masterson, consequences may unjust, or unwise. See “ by a only can be avoided consequences Ill. 2d at 557. ‘Such ” Masterson, 188 ***.’ law, by judicial construction change of the Misevic, Ill. 2d v. (quoting Pauling 2d ex rel. People Ill. at 557 (1964)). no case, had commercial In there Malloy testified decades, Mayor Eckert on the for 2006, the property. no developer that there had been interest request proposals issued a whose interest only response, Developers’, and received one Redevelopment Plan. conditioned Indeed, the assistance identified any potential produce was unable evidence in the investors, Developers, intended to invest other than who Com of the site. See Board Education growth development and of of The munity App. No. 327 Ill. 3d at 614. High School District Walmart, and Developers, that the evidence at trial demonstrated of the expressed Lowe’s a concern and need for the remediation all only had of mine. A of the Little Oak mine subsided hundreds portion north, of had oc yards to the and the value where subsidence vicinity immediate The in the of development curred decreased. YMCA, had except over areas that not been property, occurred supported property, undermined. The evidence the conclusion that the mine a risk of underground with an unremediated with moderate subsidence, develop underground had mine failed because of presented. and the it risks developed

The also contends the area could have plaintiff agree mine. We residentiary, underground the abandoned spite counter, however, qualities that the that made with the defendants’ (the to a development proximity the corner desirable commercial it residential major visibility) intersection and made undesirable for included a development. other three corners of the intersection The college, church, gas a a were not residential uses. and station and trial, upon presented during plaintiff

Based the evidence and evidence that convincing failed to establish clear redevelopment project that the abused its discretion when it concluded through subject growth development private area not to be reasonably anticipated enterprise and that the area would not Plan. Accord developed Redevelopment adoption without against not finding the circuit court’s ingly, we hold that Geisler, Ill. App. 3d at 850. weight manifest of the evidence. See Business District Division

Blight blight- respect to argues City’s findings The 95% of the Business ing compose in the farm fields that conditions District were improper because the referenced future uses as a commercial development then-present the land’s agriculture (a Geisler, use. See 383 Ill. App. 3d at 850 municipality may not an blighted consider area under the Business District based Division suitability its assessment area’s for future development). corporate may of a municipality designate, authorities after public hearings, area an municipality as Business District. 65 74.3—2(a) (West 2006). ILCS 5/11 —

“If corporate municipality impose authorities of a desire to (12) (13) pursuant tax ordinance to subsection or Section 74.3—3, following procedures apply additional shall 11 — designation approval business district and the busi redevelopment plan: ness district or

* * * (3) corporate of municipality authorities shall make (i) finding following: formal the business district is a blighted that, by the predominance reason of of defective inadequate layout, or unsanitary conditions, street unsafe or improvements, improper deterioration of site subdivision or or platting, obsolete the existence of conditions which endanger causes, life property by or fire or other or factors, provision combination of housing those retards the liability accommodationsor constitutes economic social health, public safety,morals, or a menace to the welfare (ii) use; its condition the business district on growth the whole has not been through by private enterprises investment or would not reasonably anticipated developed redeveloped or to adoption without the of the business district or 74.3—5(3)(West2006). redevelopment plan.” 65 ILCS 5/11 — Thus, the Municipal requirements Illinois Code sets out two before a may Business District a tax the TIF Act: impose sales under the blight Business District Division test and the “but for” test. City

Pursuant to Ordinance the created the Business District, Plan, the a approved imposed special Business District sales tax within area. District the TIF part the The Business is that of residentially District which 60 to 70 developed (approximately area). redevelopment project acres of the 150-acre overall Plan, City “virtually In the District concluded that Business subsidence, the entire is to mine a District condition endangers property unsafe and itself.” In the District Business Plan, found “unsafe conditions at the of also intersection Green Mount Service Carlyle Road Avenue” because “the Level of congestion traffic study connotes impact the traffic ‘F’ identified in during peak EM. hours.” reached unsafe levels [had] which District the Business findings blight of City adopted The as follows: Flan and concluded that, of the area; by reason blighted District is “The Business layout, unsanitary inadequate street or of defective predominance or the conditions, improvements, site or deterioration unsafe fire or endanger property life or of conditions existence factors, constitutes an causes, of those or combination other health, safety, public liability or a menace economicor social morals, condition and use.” present in its welfare ap Business District were findings blight in the Because the City’s findings ordinance, city presumption exists proved by Accordingly, the Geisler, 3d at 850. blight App. are valid. See 383 Ill. by clear and presumption this plaintiff had the burden overcome Geisler, appeal, Ill. 3d at 850. “On convincing App. evidence. See burden finding ] [his] did not meet plaintiff[ the circuit court’s clearly weight manifest contrary not be set aside unless will Geisler, at App. the evidence.” 383 Ill. 3d 850. City’s

The conclusions: supported evidence at the trial represented impediment layout inadequate street structures, district; underground five development within the mine, endangered and the traffic were unsafe and service itself; major structures demonstrated the defects of the five mine and underground and the improvements; deterioration of site subsidence, and the potential along with the traffic service structures, life fire or other dilapidated endangered predominance The of the combination of these factors causes. then-present condition liability constituted an economic in the land’s 74.3—5(3)(i)(West 2006). reject We and use. See 65 ILCS 5/11 — blight findings plaintiffs premised contention that the its Geisler, land, disapproved proposed future use of the Here, to the land’s then- City’s findings at relate App. Ill. 3d 836. and use. condition Business the old The concedes that farmstead plaintiff maintains, blighting District included conditions. corner of the were limited a small however, that these conditions the entire 80 throughout not “predominant” farmstead and were acres. provides Code language layout, factors, street i.e., inadequate defective or

combination conditions, improvements, of site unsanitary or deterioration unsafe must endanger property, life or and the of conditions which existence be predominant to constitute an liability present economic in its condi 74.3—5(3)(i)(West 2006). tion and use. See 65 ILCS The condi 5/11 — tions limited to the farmstead acted in combination with the fac other tors, including inadequate layout street and the existence of the underground mine with a subsidence, moderate risk of the predomi nance of which liability constituted an economic in the land’s 74.3—5(3)(i)(West 2006). condition and use. See 65 ILCS 5/11 — Business District’s “But For” Test plaintiff argues The that the Business District fails the “but for” it, whole, test subject because growth and development through by investment private enterprises, by as evidenced Amann’s private investment in past years the land over the and the result- ing thriving farming enterprise.

Pursuant to the “but for” Code, test the Illinois Municipal City made formal finding that “the business district on the whole has not been subject to growth development through investment by private enterprises reasonably or would not anticipated be be developed redeveloped adoption without the of the business district 74.3—5(3) development or redevelopment plan.” See 65 ILCS 5/11 — (West 2006).

As explained previously regard to the TIF Act’s “but for” provision, the evidence at the trial developer demonstrated the lack of interest in the property property’s develop and the failure to because underground presented. mine and the it sup risks evidence ported City’s redevelopment project conclusion that the area had growth through investment private enterprises reasonably or would not anticipated to developed or redeveloped adoption without the of the Business District 74.3—5(3) redevelopment plan. See 65 ILCS 5/11 — (West 2006).

The Economic Agreement Incentive argues The plaintiff court it circuit erred when determined did not violate section 8 — 11—20 (West 2006)) Code ILCS it entered when into 5/8 — 11—20 economic agreement Developers. incentive with the argues City’s (Belleville, Ill., finding Ordinance 6819 (eff. 2006)) Ordinance No. 6819 Jan. the property was “vacant” improper report, and was contradicted EDR’s part stated that a of the land was and a of it part vacant was not. statutory interpretation Because this issue involves and there no resolved, question of fact to be we review this issue de novo. See Geis ler, at App. 383 Ill. 3d 839. “as funds expenditure public may authorize the

Municipalities of execution[,] implementation necessary planning, may for the (West 2006). 74.3—3(9) 65 plans.” district ILCS the business 5/11 — agree an will involve “However, public of funds expenditure if the pursuant by City the collected occupation to retailer taxes ment share Act, findings set forth the Finance the State to section 6z — 18 Geis required.” are Municipal Code section 8 — 11—20 ler, at 847. App. 383 Ill. 3d Municipal Code 11—20, the Illinois to section Pursuant 8 — into to enter municipality of a corporate the authorities

authorizes redevelopment or agreements economic incentive the municipality. 65 ILCS corporate land limits of the within the 5/8— (West 2006). may municipality the agreement, 11 — 20 “Under this occupation taxes rebate a retailers’ agree portion to share or generated by that the by municipality received the 65 redevelopment period or over a finite of time.” ILCS 5/8 — 11—20 2006). (West corporate into the entering agreement, Before such findings. required to nine 65 ILCS up authorities must make 5/8— (West 2006). defendants, chal plaintiffs 11 — 20 As the the noted (2) (1) lenges findings the are limited subsections City’s (West 2006)). (2) 11—20(1), Subsec section 8 — 11—20 ILCS 5/8 — (2) (1) tions follows: provide as

“(1) subject agreement is property If the to the vacant:

(A) the vacant for at one property that has remained least year, or

(B) any building property was demol- that located on year building have ished the last and that the would within (2) Section; finding this qualified under (2) currently property agreement If is developed:

(A) buildings longer comply property that the no on building codes, with current

(B) less buildings property remained that on have period significantly unoccupied than or underutilized for 2006). (2) (West 11—20(1), year[.]” at least one ILCS 5/8 — (eff. (Belleville, Jan. Ill., In Ordinance No. 6819 Ordinance 6819 “[tjhat has Project Area 11, 2006)), found is vacant as at one Attached exhibit period year.” remained vacant for a least also findings, B to Ordinance 6819 was EDR’s October vacant for and had remained property indicated that the was vacant following: findings EDR’s indicated the year. at least one further developed: Project’s currently that area that portion “For (A) buildings longer comply no with current property on the building codes. investigations Field EDR and the in 2005 have shown ***005) five parcel structures on developed (parcel do

not comply building with current codes. (B) buildings on property have remained less than significantly occupied a period underutilized for of at least one year. EDR, investigations by

Field City, discussions shown all buildings parcel have have remained unoccupied period for a of at least year.” one “Vacant” is not explicitly defined in section 8 — 11—20 of the Il Code, clearly linois but the language characterizes “vacant” property buildings without and “developed” property as (2) (West 2006). property with buildings. 11—20(1), See 65 ILCS 5/8 — case, pursuant (1), City, through subsection EDR, held property had remained vacant for at one least year. (2), EDR, Pursuant City, through subsection further held buildings on the no longer complied with current building codes and had significantly remained less than or occupied period underutilized for a of at least year. By including one EDR’s specific with findings regard developed to both vacant and portions of property 6819, the into City sought satisfy Ordinance the to both sec tions.

Nevertheless, subject because the area the redevelopment agree to ment buildings, included it the plain language was deemed Municipal Illinois Code to be “developed.” Because the agreement to the “developed” was considered to the pursuant Code, Illinois Municipal City properly the evaluated build whether the ings on property “complied] building the with current or codes” buildings signifi whether the the than “remained less cantly or unoccupied period year” underutilized for a of at least one (West 11—20(2) 2006)). ILCS is undisputed It that the 5/8 — evidence at trial supported City’s findings regard. the the in this Ac cordingly, we find no error.

Main Street Streetscape Program Contribution plaintiff payment City $250,000 that to asserts the the Streetscape Program” characterized the “Main Street is an plaintiff argues, “advance” of funds. The as Bornstein testified and as $250,000 is further summary report, payment shown this is specifically “eligible listed as an cost” intended to to be reimbursed Developers plaintiff argues payment Walmart. The that this to City nothing nothing bonus, is a signing more and less than Act, Division, pursuant is not allowed to the TIF the Business District The plaintiff section 8 — 11—20 of Code. argues illegal payment Redevelopment Agreement. that this voids the

645 $250,000 to donation Developers’ argue that the The defendants a community, not for the welfare a contribution was never Developers argue that “signing bonus.” The defendants s that the sought a reimbursement for their contribution $250,000 contribu- budget, to total which included reference costs, misplaced budget because among million is $34 tion some {i.e., lot, light- paving, parking many of the line-item costs listed Agree- ing) pursuant Redevelopment be reimbursable would not argue only that showed that ment. The defendants the evidence made, budgets, Developers’ it item in the payment that was line of reimbursable Developers and that advanced number indicating no argue that there was evidence costs. defendants any competition there payment, asked for the (such redevelopment project “signing that a shopping for the center unfair), payment was or that might bonus” considered Agreement. Redevelopment consideration for the “ illegal question upon ‘There a contract based can no contract immoral unenforceable and that a consideration is influence necessarily improperly services which would tend perform justice also action as to or the administration public contracts ” School, Inc., App. Ill. Buckley CoyneElectrical unenforceable.’ v. (1951) Co., (quoting Lewy Plunger v. Standard Elevator (1921)). find However, the defendants and agree Ill. we $250,000 “signing no evidence that the contribution was supporting not Streetscape Program would bonus.” The contribution to the under cost under the TIP Act or qualify as a reimbursable Agreement, support Redevelopment and the evidence did a reimbursable intended to be conclusion that contribution was Developers. Accordingly, we cost or it was reimbursed Agreement reject suggestion Redevelopment plaintiffs void on that basis.

CONCLUSION as this action in case governmental The dissent characterizes the dissent’s Despite “special legislation.” a “deal” derived from Code, Municipal of the Illinois disapproval provisions of relevant legislative enactment. give language we effect to the of plain must presumption considering language, along that with When review, we cannot conclude validity and the ordinance standard weight findings against the manifest circuit court’s evidence. reasons,

For the foregoing the order of the circuit court of St. Clair County is affirmed.

Affirmed. SPOMER, dissenting:

JUSTICE I respectfully dissent. The result governmental in action profitable this case is to take farmland and it declare to be vacant and blighted in order to facilitate a deal whereby developer can public reimbursed with millions of taxpayer dollars of funds for the costs associated commercial development of that property. follow, For the reasons I believe that financing the tax-increment District, (TIF), Business and economic agreement incentive ordinances enacted the City of Belleville this case fail to conform to the requirements applicable sections Code and should be invalidated.

1. TIF Ordinance (TIF district) The TIF redevelopment project area composed is acres, profitable, 143 which were producing farmland at the time of the creation of the TIF district. In order a TIF (TIF Act) (65 to create district under the Tax Increment Allocation Redevelopment Act (West 2006)), seq. must, ILCS et a municipality inter 5/11 — 74.4—1 alia, make a determination that the land it wishes to include in the TIF blighted district meaning is area within the of the TIF Act. 65 (West 2006). 74.4—3(p) ILCS The TIF Act sets forth different 5/11 — tests determining “blighted,” depending whether land whether the land “improved” is considered “vacant” or within the (West 74.4—3(a) 2006). meaning of the TIF Act. 65 ILCS 5/11 — At the enacted, time the TIF Act agricultural farmland in production specifically exempted from the definition of the term “vacant” in TIF subsequent Act. 1961 Ill. 576. Laws Two amend ments definition of “vacant” in the TIF Act have allowed that, farmland that has been if qualify “subdivided” to as “vacant” so qualifies “blighted,” it also as that term is defined in relation Act, vacant land can part TIF it become of a TIF district. (West 74.4—3(v) 2006). My legislative ILCS search of the his 5/11 — tory of these amendments in an reasoning effort ascertain the behind out an carving exception for subdivided farmland reveals nothing special legislation amendments were short of designed to specific pork projects See, e.g., validate barrel TIF in Illinois. Ill. 88th (statements Assem., January 13, 1994, Gen. Proceedings, Senate at 44 Weaver) of Senator that an definition of (explaining amendment

647 TIE to a annexations in TIE Act “validates some land” the “vacant Tuscola”). and because Nevertheless, the amendments exist district in into 3 has divided “a tract that been larger at issue was the farmland during the accepted recording for that or more smaller tracts were 1990,” to have been 143 acres are deemed 1950 to period from blight analysis property as vacant subject can to a and subdivided (West 2006). 74.4—3(v) Act. ILCS under the TIE 65 5/11 — of definition statutory meets the the land Having found that it found blighted because “vacant,” found the area Belleville impaired area is redevelopment project growth that the of sound quarries, unused of one or more the fact that the area consists by 74.4—3(a)(3) (West mines, strip ponds. mine See ILCS 5/11 — 2006). of presumption I find rebutted would that The sound convincing evidence. validity finding of that clear and mine not the mine because growth impaired of this area was and ability productive used a did not interfere with the land’s to be as Amann, family a farmer had leased profitable farm. Harold whose although mine subject years, farmed testified that property for parcels of ability his to farm other subsidence had interfered with subject land, had conditions on there never subsidence ability the mine did his farm property and not interfere with subject Interestingly, the mine did not interfere with profitably. land a property, residential subdivi development the residential district, over the TIE portion sion was built the northern of docu Although planning also undermined. Belleville claims its development, ments area commercial this court contemplate this a area requirement development has held that the mention, impaired under the TIE Act be does not and does conformity contemplate, necessarily being anticipated growth Properties, the city’s comprehensive plan development. Castel (1994). Marion, App. Ltd. v. 259 Ill. 3d Given growth extensive evidence in record surrounding undermined occurring in vast areas occurring in that was given the residential undermined, I would find vicinity, the immediate which is also against TIE at issue was approval the circuit court’s ordinance weight the manifest evidence.

2. Business District district, TIE half is the southern Business District acres acres, except 2.5 totaling 70 acres. All this 70 approximately located, the intersection of Green buildings where the farm are at farmland Carlyle Avenue, producing Mount Road consisted the time the area was declared business district. In order to declare this district, required business Belleville was to find that the predominance of various conditions on the provi “retards sion housing accommodations or constitutes an economic or social liability health, morals, or menace to the public safety, or welfare added.) its condition and (Emphasis use.” 65 ILCS 5/11— 5(3) (West 2006). According developer, to Belleville and the this 74.3 — standard met due to at safety intersection, traffic concerns the dilapidation dumping and the on 2.5 acres where the farm buildings located, are and the existence of the mine. The traffic concerns at the intersection and dilapidation buildings of the and dumping on the 2.5 simply predominate acres do not 70 compose acres that business predominate acres, district. While the mine does the 70 it does provision not retard the of housing accommodations because the evidence TIF shows that 83 acres of the that developed district residentially developed despite were the existence of the mine and without remediation of the mine. Neither did mine constitute an economic or liability health, social or a to public safety, menace morals, portion or welfare in the condition and use of that of the busi undermined, ness district that is it producing because was farmland and underground the evidence showed that the mine did not interfere use reasons, of the farmland. For these plaintiff rebutted the presumption validity of the business district by convincing evidence, ordinance clear and and circuit court’s finding contrary against the manifest weight evidence. Agreement

3. Economic Incentive (EIA) The economic agreement incentive covers the entire area of EIA, the TIF district. In order to have a valid the municipality must specific findings make based whether the is vacant or (West 2006). improved. above, 65 ILCS only As described 5/8 — 11—20 2.5 acres the TIF district and intersection of Green Mount Road Carlyle and Avenue were the time improved at the ordinances were remaining producing enacted. The acres profitable farmland at that time. The EIA found land ordinance this vacant. However, Act, in contrast the TIF where “vacant” is specifically defined, purposes “vacant” is not defined for of the section of the Il EIAs, linois Municipal Code that authorizes and we must therefore look plain ordinary meaning. Ward, to its v. 215 Ill. 2d People See (2005). dictionary It is to refer to a appropriate this (2008). Beachem, purpose. People See v. 229 Ill. 2d 244-45 Dictionary, specific Collegiate “vacant” has Merriam-Webster’s to use.” Merriam- land, put which is “not in the context meaning (11th 2006). to this Pursuant Dictionary ed. Collegiate Webster’s farmland were producing definition, profitable the 143 acres of enacted. the EIA ordinance was the time improved at vacant enacted allow Act, legislation no has been special the TIF Unlike to an EIA. Because farmland to be profitable producing qualify cannot as an of the overwhelming majority the EIA, challenging the met his burden of find that the I would evidence, and the circuit court’s convincing clear and ordinance weight of the against the manifest order the ordinance is upholding evidence.

CONCLUSION District, reasons, TIF, I find the Business foregoing For the case to violate EIA enacted of Belleville this ordinances provisions spirit respective letter and circuit judgment I would court of Municipal Code. reverse judgment that a County St. and would remand with directions Clair all three plaintiff, invalidating municipal entered in favor of the ordinances at issue this case. LORD, THE Plaintiff-Appellee, OF v. CITY OF

HARVEST CHURCH OUR ILLINOIS, LOUIS, Defendant-Appellant. EAST ST.

Fifth District No. 5 — 09—0675 February 10, Rehearing March Opinion filed denied 2011. 2011.

Case Details

Case Name: Malec v. City of Belleville, Illinois

Court Name: Appellate Court of Illinois

Date Published: Feb 7, 2011

Citation: 943 N.E.2d 243

Docket Number: 5-09-0533 Rel

Court Abbreviation: Ill. App. Ct.