Landmarks Illinois v. Rock Island County Board ( 2021 )

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Appellate Court Date: 2021.02.10
13:20:18 -06'00'
Landmarks Illinois v. Rock Island County Board, 2020 IL App (3d) 190159Appellate Court LANDMARKS ILLINOIS, NATIONAL TRUST FOR HISTORIC
Caption PRESERVATION, ROCK ISLAND PRESERVATION SOCIETY,
MOLINE PRESERVATION SOCIETY, BROADWAY HISTORIC
DISTRICT ASSOCIATION, FREDERICK SHAW, and DIANE
OESTREICH, Plaintiffs-Appellants, v. THE ROCK ISLAND
COUNTY BOARD and THE ROCK ISLAND COUNTY PUBLIC
BUILDING COMMISSION, Defendants-Appellees.
District & No. Third District
No. 3-19-0159
Filed July 16, 2020
Decision Under Appeal from the Circuit Court of Rock Island County, No. 2019-CH-
Review 40; the Hon. Jodi M. Hoos, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded.
Counsel on Randall E. Mehrberg, Thomas E. Quinn, and Charles W. Carlin, of
Appeal Jenner & Block LLP, of Chicago, for appellants.
William P. Rector and Daniel F. Hardin, of Bozeman, Neighbour,
Patton & Noe, LLP, of Moline, for appellee Rock Island County
Board.
William Stengel and Sarah Gorham, of Stengel, Bailey & Robertson,
of Rock Island, for other appellee.
Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,
Solicitor General, and Paul Racette, Assistant Attorney General, of
counsel), for amicus curiae Illinois Department of Natural Resources.
Panel JUSTICE HOLDRIDGE delivered the judgment of the court, with
opinion.
Justices Carter and Schmidt concurred in the judgment and opinion.
OPINION
¶1 This action was brought to halt the demolition of the Rock Island County courthouse
(courthouse), which the plaintiffs claim the defendants are attempting to accomplish in
violation of the law. The courthouse was constructed in 1896 and opened in 1897. After
constructing new courtrooms and other judicial facilities as an annex to the nearby Rock Island
County jail (Annex), defendants Rock Island County Board (the Board) and Rock Island
County Public Building Commission (PBC) entered into an intergovernmental agreement to
demolish the courthouse. In order to complete the demolition project, the defendants must
obtain a permit from the Illinois Environmental Protection Agency (IEPA) to discharge
stormwater associated with the demolition site.
¶2 The Illinois Department of Natural Resources (IDNR), which has filed an amicus brief in
support of the plaintiffs’ position in this appeal, has determined that the courthouse is eligible
for listing on the National Register of Historic Places and is therefore a “historic resource”
triggering the protections of the Illinois State Agency Historic Resources Preservation Act
(Preservation Act) (20 ILCS 3420/1 et seq. (West 2016)). Pursuant to the Preservation Act’s
requirements, the IDNR initiated a consultation process with the IEPA to discuss alternatives
to the proposed demolition that could eliminate, minimize, or mitigate the adverse impact that
the demolition would have upon a historic resource. The IDNR directed the defendants to halt
the planned demolition until that consultation process has been completed. The defendants
defied the IDNR’s directive and announced their intention to proceed with the demolition
immediately.
¶3 Plaintiffs Landmarks Illinois, the National Trust for Historic Preservation, the Rock Island
Preservation Society, the Moline Preservation Society, the Broadway Historic District
Association, Frederick Shaw (Shaw), and Diane Oestreich (Oestreich) are local and national
organizations and individuals “who appreciate (or whose members appreciate) the cultural,
aesthetic, and historic value of the Historic Courthouse.” Plaintiffs Landmarks Illinois and
Shaw are also owners of bonds issued by the PBC for the construction of the Annex, the
proceeds of which the defendants intend to use to finance the demolition. The plaintiffs filed a
complaint in the circuit court of Rock Island County seeking declarative relief, a temporary
restraining order (TRO), and an injunction halting the demolition. They alleged that the
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defendants’ plan to demolish the courthouse violated two Illinois statutes—the Preservation
Act and the Public Building Commission Act (Commission Act) (50 ILCS 20/1 et seq. (West
2016))—and the PBC’s covenants with plaintiff bondholders Landmarks Illinois and Shaw.
¶4 The defendants moved to dismiss the plaintiffs’ complaint under section 2-615 of the Code
of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2018)), arguing that the allegations in the
plaintiffs’ complaint failed as a matter of law because the planned demolition of the courthouse
was immune from the Preservation Act, did not violate the Commission Act, and did not breach
the PBC’s bond covenants with Landmarks Illinois and Shaw. The Board also moved to
dismiss the complaint under section 2-619 of the Code (id. § 2-619), arguing that the plaintiffs
lacked standing to bring their claims against the defendants.
¶5 On March 19, 2019, the trial court issued an oral ruling denying the defendants’ section 2-
619 motion to dismiss for lack of standing but granting the defendants’ section 2-615 motions
to dismiss all of the plaintiffs’ claims for failure to state a claim. The circuit court granted
plaintiffs Landmarks Illinois and Shaw leave to replead their bond claims but barred any future
claims seeking equitable relief under the Preservation Act or the Commission Act. The
plaintiffs asked the trial court to keep the TRO in place for seven days while they decided
whether to file an appeal. The trial court denied the plaintiffs’ request. Two days later, the
plaintiffs filed an interlocutory appeal of the trial court’s order pursuant to Illinois Supreme
Court Rule 307(d) (eff. Nov. 1, 2017) and an emergency petition to stay the trial court’s order
pending resolution of the appeal.
¶6 On March 22, 2019, we granted the plaintiffs’ emergency petition for stay. That same day,
the trial court issued a written order memorializing its dismissal of counts I, II, and III of the
plaintiffs’ complaint with prejudice. The trial court’s written order included a finding, pursuant
to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), that “an appeal may be taken from
its final judgment on counts I, II, and III because there [was] no just reason for delaying an
appeal.” Thereafter, the plaintiffs filed a Notice of Appeal appealing the court’s written
judgment order and asked this Court to consolidate that appeal with their prior Rule 307(d)
interlocutory appeal.
¶7 On April 1, 2019, we granted plaintiffs’ Rule 307(d) petition and ordered that both the stay
that we had previously entered and the TRO issued by the trial court would remain in full force
and effect until we have issued a decision on the appeal at issue in this case.
¶8 FACTS
¶9 The following facts are taken from the allegations of the plaintiffs’ complaint and
documents attached to the complaint. The PBC was established by the Board on October 1,
1981, for the “sole purpose *** of exercising the powers and authority of [the Commission
Act] to provide a good and sufficient jail for the use of Rock Island County.” In or around
1998, the PBC added courtrooms to the Rock Island County jail building in a facility that was
referred to as the jail’s “Justice Center.”
¶ 10 In 2013, the Board sought to build a new courthouse and administration center as an annex
to the jail and Justice Center. Acknowledging that building a courthouse and county
administration center was outside the scope of the PBC’s existing authorization, the Board
planned a referendum asking local citizens to expand the PBC’s authority so that it could
legally build the proposed Annex. An informational voter guide on the proposed referendum
stated that the county could not use the existing PBC to build the proposed Annex because
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(1) “[w]hen this PBC was established in the 1980s, it was limited to just jail purposes.—That
has severely limited [the county’s] ability to repair/replace the aging courthouse”; (2) “[a]
Courthouse and County Administration Center are outside the scope of the present PBC
authorization”; and (3) “[i]t takes voter approval to expand the scope of the PBC.” On April 9,
2013, the Board placed the question of whether to expand the powers of the PBC beyond the
provision of a jail to the electorate at a referendum. The ballot provision read:
“Shall the County Board of Rock Island County be authorized to expand the purpose
of the Rock Island County Building Commission, Rock Island County, Illinois, to
include all the powers and authority prescribed by the Public Building Commission
Act?”
The referendum failed to pass, with 61% of voters voting against the proposal.
¶ 11 Following the failure of the referendum, the Board passed a resolution on June 17, 2015,
authorizing the PBC to build a new courthouse as an annex to the jail, which would include
additional civil courtrooms, circuit clerk space, and a law library. The chief judge of the
Fourteenth Judicial Circuit (Judge Walter Braud) subsequently appointed a special prosecutor
to file a quo warranto lawsuit against the PBC within the Fourteenth Judicial Circuit (the 2015
Litigation) in order to test whether the PBC had the authority to build the Annex pursuant to
its original purpose of building a jail.
¶ 12 In the 2015 Litigation, the circuit court of Henry County held that the Annex project was
“within and consistent with” the PBC’s purpose of providing for a good and sufficient jail and
was therefore within the scope of the PBC’s existing authority. In support of its ruling, the
court found, inter alia, that (1) the PBC’s June 17, 2015, resolution for the construction of the
Annex “is consistent with the previous actions taken by [the PBC] for the construction of the
original Justice Center, which included the jail facilities and secure detention areas for
transport and temporary confinement, and court security for proceedings in both civil and
criminal matters”; (2) the June 17, 2015, resolution “does not expand upon that purpose, but
on the contrary, enhances it and is therefore a proper exercise of the authority under which the
[PBC] was formed in 1981”; and (3) the June 17, 2015, resolution “does not contemplate a
totally separate structure, but rather, one that is totally integrated and connected to the existing
structure.” No appeal was taken from the circuit court’s judgment.
¶ 13 Although the circuit court’s order terminating the 2015 Litigation interpreted the PBC’s
purpose, it did not address the defendants’ compliance with section 14(a)(2) of the Commission
Act. That section provides that, where a public building commission selects and designates an
“area” as the “site *** to be [used] for the erection, alteration or improvement of a building or
buildings,” and the original resolution for the creation of the commission has been adopted by
the governing body of the county, “the site or sites selected *** are subject to approval” either
by three-fourths of the members of the governing body of the county seat or through an election
referendum. 50 ILCS 20/14(a)(2) (West 2016). 1 Nor did the 2015 Litigation address whether
the PBC had the authority to demolish the prior courthouse. That is not surprising because, at
the time of the 2015 Litigation, no one had proposed that the PBC could or should demolish
the old courthouse; the only issue presented in the 2015 Litigation was whether building the
Annex was within the scope of the original resolution creating the PBC.
1
The defendants did not seek approval of the Rock Island City Council (the governing body of the
Rock Island County seat) before proceeding with the Annex project.
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¶ 14 In February 2016, the PBC issued public revenue bonds for the purpose of acquiring,
constructing, improving, altering, equipping, repairing, maintaining, operating, and securing
the Justice Center, including the construction of the Annex.
¶ 15 In July 2017, the Board passed a resolution finding that the courthouse was in a functional
state of decrepitude. It also found that the county lacked the funds to rehabilitate the courthouse
and that the county had not identified any realistic way to preserve the courthouse. The
courthouse is located approximately 40 feet from the Justice Center and Annex. The Board
found that demolishing the courthouse was “necessary for the maintenance and security” of
the Justice Center and Annex.
¶ 16 On July 17, 2017, the Board and the PBC entered into an intergovernmental agreement that
provided that the courthouse’s current state of decrepitude and its lack of security posed a risk
to the safety and maintenance of the adjacent Justice Center and Annex, as well as to those
using it. For that reason, the Board found that the demolition of the courthouse fell within the
“[p]roject scope requirements” of the Annex project. The intergovernmental agreement stated
that the county shall direct the PBC to demolish the courthouse once all county offices and
functions ceased being conducted from the courthouse, “as approved by resolution passed by
the *** Board.” Demolition was defined to include “the improvement of the site as necessary
to protect the new Courthouse.” Regarding the county and PBC’s obligations under the
Commission Act, the intergovernmental agreement found that the area for the PBC’s existing
work on the Annex would be expanded to cover the location of the courthouse. The PBC would
pay for the design of the demolition plan and site improvement, including all costs of
construction and demolition, from funds available to it. If the PBC found that it lacked
sufficient funds to accomplish this, it had the discretion to notify the county administrator, at
which point the intergovernmental agreement would become ineffective.
¶ 17 On November 9, 2017, Chief Judge Braud announced his intention to ask the PBC to
demolish the courthouse using excess proceeds from the bonds that had been issued to finance
the Annex. The chief judge stated that if the PBC refused to “do what [he thought] need[ed] to
be done,” he would issue “an administrative order to say, you will tear it down.” The chief
judge maintained that he could issue such an order based on his authority as chief judge to
“manage courthouses,” which, he indicated, meant that “he can build them, he can erect them,
and he can tear them down.”
¶ 18 On November 13, 2017, Chief Judge Braud sent a letter to the Board outlining his proposal
and asking the Board to “respond favorably to [his] proposal on or before January 1, 2018.”
The chief judge indicated that “any delay past January 1 [would have] a cost associated with
it, not in your favor,” because the chief judge would reallocate the $1.6 million in PBC bond
funds he had set aside for the demolition. In his letter, the chief judge reiterated what he had
said to the media one week earlier, namely, that he had the authority to administratively order
the courthouse razed, but he preferred not to resort to “litigation to force [the Board and PBC]
to pay for razing” the courthouse.
¶ 19 On July 17, 2018, the Board approved the demolition of the courthouse and contracted with
the PBC to undertake the demolition. The courthouse is adjacent to, but not within, the existing
Justice Center and Annex. (As noted above, the courthouse is located approximately 40 feet
from the Annex.) The defendants did not seek or obtain approval from the Rock Island City
Council or Rock Island voters for a new site before agreeing to undertake the demolition of the
courthouse.
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¶ 20 On December 7, 2018, the PBC’s contractor, Missman Inc., wrote to the IDNR informing
the agency that “[t]he [PBC] is now proposing the demolition of the Rock Island County Court
House located at 210 15th Street in Rock Island” and is “requesting a determination as to
whether the project has satisfied all applicable requirements of Illinois law with respect to
Historic Preservation.” On December 11, 2018, the defendants submitted a revised application
to the IEPA for a permit to discharge stormwater associated with the demolition site, which
the defendants were required to secure before proceeding with the demolition of the
courthouse. 2 The IEPA permit application form required the applicant to certify that it had
submitted the project proposal to the “Historic Preservation Agency” (which the General
Assembly has folded into the IDNR as part of the recent amendments to the Preservation Act)
in compliance with Illinois law. The IEPA’s website states that no stormwater permits will be
effective until a project has received “sign-off” from IDNR that the project complies with
historic preservation laws.
¶ 21 On December 11, 2018, the IDNR advised the PBC that the courthouse is a “historic
resource” within the meaning of the Preservation Act and that the PBC’s proposed demolition
would result in an adverse impact on a historical resource and was therefore subject to review
under section 4 of the Preservation Act (20 ILCS 3420/4 (West 2016)). The IDNR stated that
the PBC should participate in the statutorily mandated consultation process between IDNR and
IEPA to determine if there was a way to avoid the adverse effect (i.e., the demolition). The
IDNR also directed the PBC not to conduct any demolition activities until the process
prescribed by the Preservation Act was complete. However, on December 13, 2018, the PBC
informed the IDNR that it did not believe that the courthouse was subject to the executive
demands of the IDNR and that it planned to proceed with the demolition.
¶ 22 On January 25, 2019, Chief Judge Braud issued an administrative order directing the
defendants to demolish the courthouse pursuant to his administrative authority as chief judge.
In his administrative order, Chief Judge Braud made findings of fact and conclusions of law.
Specifically, Chief Judge Braud found that, given the close proximity of the courthouse to the
Annex, it posed a security risk to judicial personnel and to those visiting the Annex. The chief
judge also found that the courthouse’s condition of disrepair posed risks to those who would
be in the area of the courthouse. The chief judge issued the administrative order without notice,
without conducting a hearing, and without affording any party the opportunity to present
evidence or legal argument. On February 8, 2019, the plaintiffs filed a petition to intervene in
the administrative action and a motion to vacate the court’s administrative order. The Rock
Island County Circuit Clerk’s office refused to accept the plaintiffs’ petition to intervene and
motion to vacate, stating that there was no pending case in which the plaintiffs could intervene.
¶ 23 On February 6, 2019, the plaintiffs filed their verified complaint in this action seeking a
TRO halting the demolition of the courthouse. The complaint alleged that (1) the proposed
demolition is subject to the Preservation Act and would violate that act (count I), (2) the
proposed demolition project violates the site approval requirements in the Commission Act
(count II) and falls outside the limited purpose of the PBC (count III), and (3) the PBC’s plan
to use excess bond proceeds from the Annex project to pay for the demolition of the courthouse
2
Under the terms of the IEPA’s general stormwater permit, an applicant submits a notice of intent
(NOI) to use the permit, and the applicant may proceed to discharge stormwater 30 days after submitting
the NOI unless the IEPA informs the applicant otherwise.
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violates the Commission Act (count IV) and the PBC’s covenants with bondholders (counts V
through VI), which require the PBC to deposit all excess bond proceeds into a sinking fund
dedicated solely to the retirement of the bonds. The defendants filed motions to dismiss the
plaintiffs’ complaint under section 2-615. The Board also filed a section 2-619 motion to
dismiss the complaint for lack of standing.
¶ 24 On March 8, 2019, the circuit court granted the plaintiffs’ motion for a TRO and directed
the defendants to refrain from demolishing the courthouse until the circuit court addressed the
defendants’ pending motions to dismiss. The circuit court held that the plaintiffs had
demonstrated (1) a “clearly ascertainable right in need of protection,” (2) “irreparable harm”
in the absence of a TRO, (3) that there was “no adequate remedy at law,” and (4) that plaintiffs
had demonstrated a “likelihood of success” for purposes of obtaining a TRO.
¶ 25 On March 19, 2019, after hearing arguments from the parties, the circuit court orally
granted the defendants’ motions to dismiss for failure to state a claim pursuant to section 2-
615 of the Code. The trial court dismissed the plaintiffs’ claim under the Preservation Act
(count I) because it found that the Preservation Act exempted local government agencies and
their officers from its requirements and because IEPA’s granting a permit for stormwater
drainage did not constitute an “undertaking” by a state agency subject to the Preservation Act.
¶ 26 The trial court also dismissed counts II and III of the plaintiffs’ complaint, which asserted
claims under the Commission Act. In dismissing count II, the court held that the PBC had the
authority to demolish the courthouse under section 14(c) of the Commission Act (50 ILCS
20/14(c) (West 2016)), which authorizes a public building commission to “demolish, repair,
alter or improve any building or buildings within the area” that the commission had previously
selected for a building project. In dismissing count III, the trial court found that the demolition
of the courthouse would not constitute an unauthorized enlargement of the PBC’s purpose,
even though the courthouse was not structurally connected to the jail or part of the physical
site including the jail and the Annex, because (1) the 2015 Litigation had already determined
that the PBC’s construction of the Annex (which included a new courthouse) was within the
PBC’s purpose and authority to build a jail and (2) “common sense tells you if it is the purpose
of the commission to building [sic] the new courthouse, how is it not the same purpose to tear
the old one down?”
¶ 27 The trial court also dismissed counts IV through VI of the plaintiffs’ complaint (the bond
agreement counts). Count IV alleged that the defendants had violated the Commission Act by
using excess proceeds from the sale of the Annex bonds to finance the demolition of the
courthouse and the construction of a park instead of transferring those monies into the sinking
fund after the Annex was constructed and declared ready for occupancy. In count V, the
plaintiff bondholders alleged that the PBC had breached the bond agreements by modifying
the terms of the bond resolution to allow bond proceeds to be used to finance a demolition
project separate and apart from the Annex project set forth in the transaction documents. In
count VI, the plaintiff bondholders alleged that the PBC had breached the bond agreements
and associated transaction documents by misappropriating bond proceeds for a separate project
rather than depositing such proceeds in the bond and interest fund.
¶ 28 The court dismissed counts I, II, and III (claims brought under the Preservation Act and
the Commission Act) with prejudice and dismissed counts IV through VI (the bond contract
counts) without prejudice. Although the court granted the plaintiffs leave to replead the bond
contract counts, it barred them from repleading any claims relating to the purpose of the PBC
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under the Commission Act. The circuit court dissolved the existing TRO because it determined
that counts IV through VI, if repleaded, would have an adequate remedy at law.
¶ 29 The plaintiffs orally moved the court to reconsider its order vacating the TRO and asked
the court to leave the TRO in place for seven days while the plaintiffs decided whether to take
an appeal. The defendants objected. The trial court denied the plaintiffs’ motion.
¶ 30 On March 21, 2019, the plaintiffs filed an interlocutory appeal of the circuit court’s ruling
dissolving the TRO pursuant to Illinois Supreme Court Rule 307(d) (eff. Nov. 1, 2017) (appeal
No. 3-19-0146) and an emergency petition to stay the circuit court’s March 19, 2019, order in
its entirety pursuant to Illinois Supreme Court Rule 305(d) (eff. July 1, 2017) pending appeal
on the merits of the trial court’s dismissal of the plaintiffs’ complaint. On March 22, 2019, we
granted the plaintiffs’ emergency petition to stay pending appeal.
¶ 31 That same day, the circuit court entered a final written order memorializing its March 19,
2019, oral ruling. The circuit court’s order included a written finding, pursuant to Rule 304(a),
that “an appeal may be taken from its final judgment on counts I, II, and III because there is
no just reason for delaying an appeal.” Later that day, after the circuit court entered its written
ruling (including its special finding pursuant to Rule 304(a)), plaintiffs filed their notice of
appeal in this case (appeal No. 3-19-0159).
¶ 32 On April 1, 2019, we granted plaintiffs’ Rule 307(d) petition and ordered that both the stay
we had previously entered and the TRO issued by the circuit court shall remain “in full force
and effect” until we have issued a decision in the instant appeal.
¶ 33 ANALYSIS
¶ 34 The plaintiffs argue that the trial court erred in granting the defendants’ motion to dismiss
because the defendants’ proposed demolition of the courthouse violates both the Preservation
Act and the Commission Act. Before reaching the merits of the plaintiffs’ statutory claims, we
must address two threshold issues raised by the defendants. The defendants contend that our
appellate court “may” lack jurisdiction over this interlocutory appeal because the circuit court
did not issue its Rule 304(a) finding of immediate appealability until after the plaintiffs filed
their initial notice of interlocutory appeal under Rule 307(d). In addition, the defendants
maintain that the plaintiffs lacked standing to bring their claims in the circuit court. We address
each of these issues in turn.
¶ 35 1. Appellate Jurisdiction
¶ 36 The defendants suggest that our appellate court “may lack jurisdiction” to decide this
appeal under Rule 304 because the plaintiffs did not obtain a Rule 304(a) finding from the trial
court until after they filed their notice of interlocutory appeal under Rule 307(d). The filing of
an interlocutory appeal divests the trial court of jurisdiction to change or modify the
interlocutory order that is on appeal or to make any ruling that would affect the subject matter
or substance of that interlocutory order. R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill.
2d 153, 162 (1998); Brownlow v. Richards, 328 Ill. App. 3d 833, 836-37 (2002). The Board
argues that the trial court’s addition of Rule 304(a) language to its written judgment order after
the plaintiffs filed their Rule 307(d) notice of interlocutory appeal in this case “substantively
altered the nature of the pending Rule 307 appeal” because it enabled the plaintiffs to obtain
the relief from the appellate court that they had sought in the Rule 307 appeal, i.e., a stay of
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the trial court’s dismissal order or a TRO preventing the demolition of the courthouse pending
the disposition of an interlocutory appeal under Rule 304(a). The Board argues that the
plaintiffs could not have obtained any such relief from the appellate court at the time they filed
the Rule 307 appeal because they had not yet obtained a Rule 304(a) finding of appealability
from the circuit court at that time. From this premise, the defendants argue that (1) the circuit
court “may have lacked jurisdiction” to enter the Rule 304(a) finding in its March 22, 2019,
order because the plaintiffs “may have already divested the Circuit Court of jurisdiction by
filing a Rule 307(d) appeal,” (2) the trial court’s written order containing the Rule 304(a)
finding is therefore a nullity, and (3) this court therefore lacks jurisdiction to decide this appeal
pursuant to Rule 304.
¶ 37 We do not find these arguments to be persuasive. Although the filing of a notice of appeal
transfers jurisdiction from the trial court to the appellate court instanter, “the trial court retains
jurisdiction on matters collateral or supplemental to the judgment” (In re N.L., 2014 IL App
(3d) 140172, ¶ 23), and “orders entered after the filing of the notice of appeal are valid if the
substantive issues on appeal are not altered so as to present a new case to the reviewing court”
(emphasis added) (R.W. Dunteman Co., 181 Ill. 2d at 162; see also N.L., 2014 IL App (3d)
140172, ¶ 23; In re Estate of Goodlett, 225 Ill. App. 3d 581, 587 (1992); Chavin v. General
Employment Enterprises, Inc., 222 Ill. App. 3d 398, 405 (1991)). Here, the trial court’s March
22, 2019, written judgment order did not alter the substance of its March 19, 2019, oral ruling
(which was the subject of the plaintiffs’ prior Rule 307(d) appeal) in any way. To the contrary,
the trial court’s written order merely memorialized and confirmed its prior oral rulings.
Specifically, the March 22, 2019, written order confirmed the dissolving of the TRO, the
dismissal of counts I through III of the plaintiffs’ complaint with prejudice, and the dismissal
of counts IV through VI of the complaint without prejudice. Contrary to the Board’s
contention, the trial court’s inclusion of Rule 304(a) language in the written judgment order
did not substantively alter the nature of the court’s prior judgment in any way. It merely
rendered the court’s preexisting judgment immediately appealable under Rule 304(a). The
defendants cite no authorities holding or suggesting that the mere entry of a finding of
appealability under Rule 304(a), without more, substantively alters a preexisting interlocutory
order that was previously appealed pursuant to a different rule. Nor have we found any such
authority.
¶ 38 In sum, the trial court’s written order did not alter the substance or subject matter of the
pending Rule 307(d) appeal in any way, much less present a “new case” to our appellate court.
The trial court’s finding of immediate appealability under Rule 304(a) was therefore valid and
within the trial court’s continuing jurisdiction. Accordingly, we find that we have jurisdiction
to decide the plaintiffs’ appeal under Rule 304.
¶ 39 2. Standing
¶ 40 The defendant Board further maintains that the plaintiffs “lack standing to challenge
whether the *** Board’s decision to demolish the [c]ourthouse violates either the ***
Preservation Act or the *** [Commission Act].” According to the Board, private organizations
like Landmarks Illinois, Rock Island Preservation Society, and Moline Preservation Society
do not have a legally cognizable interest in the demolition of the courthouse and therefore lack
standing to challenge the demolition. Moreover, the Board argues that the plaintiffs do not
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have “taxpayer standing” to challenge the Board’s decision because none of the plaintiffs is
alleged to have paid taxes in Rock Island County. 3
¶ 41 A party has standing to bring a claim only when that party has a real interest in the outcome
of the controversy. Chicago Teachers Union, Local 1 v. Board of Education of the City of
Chicago, 189 Ill. 2d 200, 206 (2000); see also Hill v. Butler, 107 Ill. App. 3d 721, 725 (1982)
(“The concept of standing to bring suit requires that parties before the court seeking relief have
a sufficiently protectable interest pursuant to statute or common law which is alleged to be
injured.”). A self-proclaimed concern about a matter of public interest does not grant standing,
no matter how sincere. Landmarks Preservation Council of Illinois v. City of Chicago, 125 Ill.
2d 164, 175 (1988); Lombard Historical Comm’n v. Village of Lombard, 366 Ill. App. 3d 715,
717 (2006). However, members of the public have a protectable interest in ensuring that public
officials follow the requirements of public statutes. Lombard Historical Comm’n, 366 Ill. App.
3d at 718; Hill, 107 Ill. App. 3d at 725.
¶ 42 Lack of standing is an affirmative defense. Lombard Historical Comm’n, 366 Ill. App. 3d
at 718; Hill, 107 Ill. App. 3d at 725; Greer v. Illinois Housing Development Authority, 122 Ill.
2d 462, 494 (1988). Accordingly, a plaintiff need not allege facts establishing standing; rather,
it is the defendant’s burden to plead and prove lack of standing. Chicago Teachers Union,
Local 1, 189 Ill. 2d at 206. Here, the Board challenged the plaintiffs’ standing in its motion to
dismiss the plaintiffs’ complaint under section 2-619 of the Code. The trial court rejected the
Board’s argument and found that the plaintiffs had standing to bring their claims. In ruling on
a section 2-619 motion, a court must accept as true all well-pleaded facts in plaintiff’s
complaint and all inferences that can reasonably be drawn in plaintiff’s favor. Chicago
Teachers Union, Local 1, 189 Ill. 2d at 206; Hermitage Corp. v. Contractors Adjustment Co.,
166 Ill. 2d 72, 85 (1995). The court should grant the motion only if the plaintiff can prove no
set of facts that would support a cause of action. Chicago Teachers Union, Local 1, 189 Ill. 2d
at 206. Our review of a trial court’s disposition of a section 2-619 motion is de novo. Id.;
Carver v. Nall, 186 Ill. 2d 554, 557 (1999).
¶ 43 We agree with the trial court that the plaintiffs have standing to bring their claims under
the Preservation Act and the Commission Act. As an initial matter, members of the public,
including private parties, have a protectable interest in ensuring that public officials follow the
requirements of public statutes. Lombard Historical Comm’n, 366 Ill. App. 3d at 718; Hill,
107 Ill. App. 3d at 725. Thus, the private party plaintiffs in this case, including both the
individuals and the associations named as plaintiffs, have standing to challenge the Board’s
demolition of a publicly owned courthouse where such demolition is alleged to violate the
requirements of the Preservation Act and the Commission Act. See Lombard Historical
3
On February 22, 2019, the plaintiffs moved to file a proposed verified amended complaint that
added Oestreich as a party and identified her as a Rock Island County taxpayer. The defendants argue
that Oestreich is not a proper party to this appeal because the trial court never issued an order granting
the plaintiffs’ motion. However, the trial court’s March 15, 2019, order granting the TRO listed
Oestreich as a party in the case caption and temporarily enjoined the defendants from carrying out any
demolition activities “with regard to the building identified in Plaintiffs’ Verified Amended Complaint
as the Historic Courthouse.” This suggests that the trial court allowed the plaintiffs to file its verified
amended complaint adding Oestreich as a party. In any event, the plaintiffs have not argued, either
before the trial court or on appeal, that their standing to file the instant lawsuit derives from any
plaintiff’s status as a Rock Island County taxpayer.
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Comm’n, 366 Ill. App. 3d at 718 (holding that the Lombard Historical Commission, The
Friends of the Du Page Theatre, and an individual had standing to challenge the Village of
Lombard’s (Village) plan to demolish the Du Page Theatre, where the Village owned the
theatre and the plaintiffs alleged that the demolition would violate a Village ordinance); 4 Hill,
107 Ill. App. 3d at 725 (ruling that, where the object of a mandamus action is the enforcement
of a public right, a private plaintiff has standing to bring the action due to his “interest[ ] as a
citizen in having the laws properly executed” (internal quotation marks omitted)).
¶ 44 Moreover, certain of the plaintiffs have standing for additional reasons. Two of the
plaintiffs, Landmarks Illinois and Shaw, are bondholders. Section 16 of the Commission Act
provides that bondholders may, “[b]y civil action, sue to enjoin any acts or things which may
be unlawful, or in violation of any of the rights of the bondholder” or
“[b]y mandamus, injunction or other civil action, compel the Commission, and the
member or members, officers, agents or employees thereof, to perform each and every
term, provision and covenant contained in any resolution, trust agreement or contract
with or for the benefit of such bondholder, and to require the carrying out of any or all
such covenants and agreements of the Commission and the fulfillment of all duties
imposed upon the Commission by this Act.” 50 ILCS 20/16 (West 2016).
In this case, plaintiffs Landmarks Illinois and Shaw have alleged that the defendants’ planned
demolition of the courthouse would violate the terms of their bond agreements with the
defendants because the defendants have misappropriated excess bonds from the Annex project
to fund the demolition. Thus, plaintiffs Landmarks Illinois and Shaw have alleged that the
demolition of the courthouse would cause them to suffer an injury in fact to a legally
recognized interest, both under the terms of the bond agreements themselves and under section
16 the Commission Act. As bondholders, Landmarks Illinois and Shaw have standing to file
suit to prevent the planned demolition and to compel the defendants to discharge their
obligations under the bond agreements and the Commission Act.
¶ 45 In addition, the National Trust for Historic Preservation (National Trust), a congressionally
chartered not-for-profit corporation, has standing to challenge the defendants’ demolition of
the courthouse pursuant to the federal Historic Sites, Buildings, and Antiquities Act (16 U.S.C.
§ 468 et seq. (2012)). In that statute, Congress gave the National Trust broad authority to sue
in state courts to prevent the unlawful demolition of buildings it “deems of national historic
significance,” even buildings that have not been officially designated as national landmarks,
and even when the demolition would violate state law, rather than federal law. Landmarks
Preservation Council of Illinois, 125 Ill. 2d at 176-77. In Landmarks, our supreme court found
4
The Board attempts to distinguish Lombard Historical Comm’n on the ground that the plaintiffs
in that case were held to have standing as taxpayers of the Village of Lombard, whereas in this case
“there is no Plaintiff alleged to be a taxpayer of Rock Island County.” However, the court in Lombard
addressed taxpayer standing as an alternative basis for standing in addition to a private party’s
protectable interest in ensuring that public officials follow the requirements of public statutes. Lombard
Historical Comm’n, 366 Ill. App. 3d at 718. It did not hold that the later interest was dependent on any
plaintiff’s status as a taxpayer. See also Hill, 107 Ill. App. 3d at 725. But even assuming arguendo that
only taxpayers may assert a protectable interest in ensuring that public officials follow the law, that
would not eliminate the plaintiffs’ standing in this case. In their verified amended complaint, which the
trial court implicitly granted, the plaintiffs added Oestreich as a plaintiff and alleged that she paid taxes
to the City of Rock Island.
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that the National Trust had standing to bring a declaratory judgment action against the City of
Chicago (City) and a private owner of a building to challenge the City’s rescinding of the
building’s landmark status. Id.
¶ 46 The Board argues that Landmarks is distinguishable because, in Landmarks, the building
at issue was at one time included in the National Register of Historic Places, whereas, in this
case, there is no allegation in the complaint that the National Trust has deemed the courthouse
to be of national historic significance. (The plaintiffs have merely alleged that IDNR has
determined that the courthouse is eligible for listing in the National Register.) However,
Landmarks does not hold or imply that the National Trust has standing to file a lawsuit to
prevent the destruction of a historic building only if it has previously listed the building on the
National Registry of Historic Places. To the contrary, in Landmarks, our supreme court
recognized that (1) Congress “intended the National Trust’s functions to be extremely broad”;
(2) Congress created the National Trust, in part, “to preserve for public use historic sites,
buildings, and objects of national significance for the inspiration and benefit of the people of
the Unites States”; and (3) “in order to perform its congressionally mandated functions, the
National Trust must be allowed to maintain suits in State courts to prevent unlawful destruction
of buildings it deems of national historic significance,” even if those buildings do not have
national landmark status. (Emphasis added and internal quotation marks omitted.) Id. By
joining the lawsuit at issue in this case, the National Trust has shown that it deems the
courthouse to be of historic significance. That is all that is required to confer standing on the
National Trust under 16 U.S.C. § 468. Id. Such standing includes the right to sue the defendants
to halt the proposed demolition of the courthouse and to enforce the requirements of the
Preservation Act and the Commission Act. 5
¶ 47 3. Plaintiffs’ Claim Under the Preservation Act
¶ 48 In count I of their complaint, the plaintiffs’ alleged that the demolition of the courthouse is
subject to the Preservation Act and may not proceed until the IDNR and IEPA have completed
the consultation process prescribed by the Preservation Act. The trial court rejected the
plaintiffs’ claim and dismissed count I with prejudice pursuant to section 2-615 of the Code.
The plaintiffs contend that this was error and urge us to reverse the trial court’s dismissal of
their claim under the Preservation Act.
5
The plaintiffs further argue that all of the private party plaintiffs have standing to challenge the
demolition under the Preservation Act because section 4(c) of the Preservation Act grants “private
organizations” the right to participate in the statutorily mandated consultation process in an effort to
obviate harm to a historically significant building, and the plaintiffs “have standing to protect that
statutory right.” In Landmarks, our supreme court rejected a similar argument with respect to a
municipal ordinance that provided a similar right of participation. See Landmarks Preservation Council
of Illinois, 125 Ill. 2d at 175 (“we [are not] prepared to recognize as a basis for standing an alleged right
to participate in a public hearing for participation’s sake, at least where, as here, a municipality has
bestowed that alleged procedural right apparently not as a legal entitlement but as a tool to assist the
municipality in performing its legislative function”). Because we find that the plaintiffs have standing
for other reasons, we need not determine whether the legislature intended the right of participation it
granted to private parties under the Preservation Act to be a legal entitlement sufficient to confer
standing on such parties.
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¶ 49 A motion to dismiss under section 2-615 challenges the legal sufficiency of a complaint
based upon defects that are apparent on the face of the complaint. Heastie v. Roberts, 226 Ill.
2d 515, 531 (2007); Sandholm v. Kuecker, 2012 IL 111443, ¶ 54. In determining whether a
complaint is legally sufficient, a court must accept as true all well-pleaded facts, draw all
reasonable inferences from the well-pleaded facts in favor of the nonmoving party, and
construe the allegations in the complaint in the light most favorable to the plaintiff. Heastie,
226 Ill. 2d at 531; Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006); Board of
Directors of Bloomfield Club Recreation Ass’n v. The Hoffman Group, Inc., 186 Ill. 2d 419,
424 (1999). The dispositive question is whether the allegations of the complaint, when
considered in a light most favorable to the plaintiff, are sufficient to state a cause of action
upon which relief can be granted. Hoffman Group, Inc., 186 Ill. 2d at 424. A trial court should
not dismiss a claim under section 2-615 “unless it is clearly apparent that no set of facts can be
proved that would entitle the plaintiff to recovery.” Heastie, 226 Ill. 2d at 531; Marshall, 222
Ill. 2d at 429.
¶ 50 The purpose of the Preservation Act is to provide Illinois state government leadership in
preserving, restoring, and maintaining certain historic resources of the state. 20 ILCS 3420/1
(West 2016). Toward that end, the Preservation Act requires state agencies, in consultation
with the Director of Natural Resources, to “institute procedures to ensure that State projects
consider the preservation and enhancement of both State owned and non-State-owned historic
resources.” (Emphasis added.) Id. The Preservation Act defines a “historic resource” as “any
property which is either publicly or privately held” and that meets one of four specified criteria,
including that the property is eligible for listing in the National Register of Historic Places as
determined by the Director of Natural Resources. Id. § 3(c).
¶ 51 The Preservation Act’s requirements apply to any “undertaking” that will potentially affect
the character or use of a historic property. Id. §§ 3(f), 4. The Act defines an “undertaking” as
“any project, activity or program that can result in changes in the character or use of historic
property, if any historic property is located in the area of potential effects,” where such project,
activity, or program is “under the direct or undirect jurisdiction of a State agency or licensed
or assisted by a State agency.” (Emphasis added.) Id. § 3(f). Under the statute, an
“undertaking” includes, but it not limited to, actions “(1) directly undertaken by a State agency;
(2) supported in whole or in part through State *** funding assistance; or (3) carried out
pursuant to a State lease, permit, license, certificate, approval, or other form of entitlement or
permission.” (Emphases added.) Id.
¶ 52 The Act imposes various mandatory procedural requirements upon such state agency
“undertakings.” First, written notice of the project must be given to the Director of Natural
Resources either by the state permitting agency or by the recipients of the state agency’s funds,
permits, or licenses. Id. § 4(a); see also 17 Ill. Adm. Code 4180.200(a) (1993). Such written
notice must be given to the director before the state agency approves the final design or plan
of any undertaking, funds the undertaking, or takes any action of approval or entitlement as to
any private undertaking. 20 ILCS 3420/4(a) (West 2016); 17 Adm. Code 4180.200 (1993).
¶ 53 Within 30 days of receiving notice of the proposed undertaking and any documentation
that the director deems necessary, the director must review and comment to the state agency
on the likelihood that the undertaking will have an “adverse effect” on the historic resource.
20 ILCS 3420/4(b) (West 2016). An “adverse effect” includes the destruction of the historic
resource. Id. § 3(d)(1). If the director determines that there will be no adverse effect, he must
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inform the state agency to that effect and the project may proceed. 17 Ill. Adm. Code
4180.300(b) (1993). However, if the director finds that an undertaking will adversely affect a
historic resource, the state agency shall consult with the director and shall discuss alternatives
to the proposed undertaking that could eliminate, minimize, or mitigate the undertaking’s
adverse effect. 20 ILCS 3420/4(c) (West 2016); see also 17 Ill. Adm. Code 4180.300(c),
4180.350(a) (1993). During the consultation process, the state agency must explore all feasible
and prudent plans that eliminate, minimize, or mitigate adverse effects on historic resources.
20 ILCS 3420/4(c) (West 2016); see also 17 Ill. Adm. Code 4180.350(a) (1993). Permittees,
representatives of national, state, or local units of government, and other interested parties may
participate in the consultation process. 20 ILCS 3420/4(c) (West 2016); 17 Ill. Adm. Code
4180.350(b) (1993). The consultation process may involve on-site inspections and public
informational meetings pursuant to IDNR regulations. 20 ILCS 3420/4(c) (West 2016); see
also 17 Ill. Adm. Code 4180.350(b) (1993).
¶ 54 If the director and the state agency agree that there is a feasible and prudent alternative that
eliminates, minimizes, or mitigates the adverse effect of the undertaking, or if they agree that
there is no such alternative, the director must prepare a memorandum of agreement describing
the alternatives or stating the finding. 20 ILCS 3420/4(d) (West 2016); see also 17 Ill. Adm.
Code 4180.350(d) (1993). The state agency may proceed with the undertaking once the
memorandum has been signed by both the director and the state agency. 20 ILCS 3420/4(d)
(West 2016).
¶ 55 If the director and the state agency fail to agree on the existence of a feasible and prudent
alternative that eliminates, minimizes, or mitigates the adverse effect of an undertaking on a
historic resource, the state agency must hold a public meeting in the county where the
undertaking is proposed within 60 days. 20 ILCS 3420/4(e) (West 2016); see also 17 Ill. Adm.
Code 4180.400, 4180.450 (1993). If the director and the state agency do not agree on a feasible
and prudent alternative within 14 days following conclusion of the public meeting, the
proposed undertaking must be submitted to the Historic Preservation Mediation Committee
(Committee). 20 ILCS 3420/4(e) (West 2016); see also 17 Ill. Adm. Code 4180.500(b) (1993).
Within 30 days after submission of the proposed undertaking to the Committee, the Committee
must meet with the director and the state agency to review each alternative and to evaluate
whether a feasible and prudent alternative exists. 20 ILCS 3420/4(f) (West 2016); see also 17
Ill. Adm. Code 4180.500(c) (1993). In the event that the director and the state agency continue
to disagree, the Committee must provide a statement of findings or comments setting forth an
alternative to the proposed undertaking or finding that there is no feasible or prudent
alternative. 20 ILCS 3420/4(f) (West 2016). The state agency must consider the written
comments of the Committee and must respond in writing before proceeding with the
undertaking. Id.; see also 17 Ill. Adm. Code 4180.500(c) (1993).
¶ 56 In this case, the plaintiffs have alleged in their complaint that (1) the demolition of the
courthouse may not proceed until the PBC has obtained a state agency permit (specifically, a
stormwater drainage permit from the IEPA), (2) the courthouse is a “historic resource” because
the IDNR has determined that it is eligible for listing in the National Register of Historic
Places, and (3) the IDNR has concluded that the proposed demolition threatens the courthouse.
These allegations are sufficient to state a claim that the proposed demolition is a state agency
“undertaking” subject to the requirements of the Preservation Act. 20 ILCS 3420/3(f) (West
2016) (defining a state agency “[u]ndertaking” as “any project, activity, or program that can
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result in changes in the character or use of historic property” where such project, activity, or
program is “carried out pursuant to a State *** permit *** or other form of entitlement or
permission”). Accordingly, the demolition of the courthouse may not proceed until the
Preservation Act’s procedural requirements, including the act’s mandatory consultation
process, have been completed.
¶ 57 The plaintiffs have further alleged that (1) through its contractor, the PBC asked the IDNR
to provide a “determination as to whether the [proposed demolition] project has satisfied all
applicable requirements of Illinois law with respect to Historic Preservation”; (2) four days
later (well within the 30-day time period prescribed by section 4(b) of the Preservation Act),
the IDNR advised the PBC that the courthouse is a “historic resource” within the meaning of
the Preservation Act, that the PBC’s proposed demolition would result in an adverse impact
on a historical resource and was therefore subject to review under section 4 of the Preservation
Act, and that the PBC should participate in the statutorily mandated consultation process
between IDNR and IEPA to determine if there was a way to avoid the adverse impact (i.e., the
demolition); (3) The IDNR also directed the PBC not to conduct any demolition activities until
the consultation process prescribed by the Preservation Act was complete; and (4) two days
later, the PBC informed the IDNR that it did not believe that the courthouse was subject to the
executive demands of the IDNR and that it planned to proceed with demolition. These
allegations are sufficient to state a claim for a threatened violation of the Preservation Act.
Accordingly, the trial court erred in dismissing count I of the plaintiffs’ complaint to enjoin
the demolition pending the completion of the Preservation Act’s mandatory consultation
process.
¶ 58 The trial court dismissed the plaintiffs’ claim for several reasons, none of which has merit.
First, the trial court noted that the Preservation Act expressly exempts “units of local
government and their officers” from its definition of “State agency.” From this, the trial court
concluded that the defendants in this case, both of whom are units of local government, are not
required to follow the Preservation Act’s requirements. Similarly, the defendants argue that,
although section 4 of the Preservation Act imposes consultation obligations upon the IDNR
and any state agency that approves or licenses certain “undertakings,” it imposes no obligations
upon nonstate actors like the defendants. Interested parties other than state agencies may, but
are not required to, take part in the consultation process prescribed by the Preservation Act. 20
ILCS 3420/4(c) (West 2016); 17 Ill. Adm. Code 4180.350(b) (1993). Thus, the defendants
contend, the statute creates no private right of action against nonstate actors, and nonstate
parties cannot be liable for violations of the Preservation Act and may not be sued under the
Preservation Act.
¶ 59 We disagree. While it is true that the Preservation Act exempts “units of local government
and their officers” from its definition of “State agency,” 6 that does not mean that units of local
government may not participate in “undertakings” that are subject to the act’s requirements.
To the contrary, section 3(f) of the Preservation Act unambiguously defines an “undertaking”
as “any project, activity or program that can result in changes in the character or use of historic
property” where such project, activity, or program is “licensed or assisted by a State agency,”
6
Section 3(b) of the Preservation Act defines “[a]gency” as having “the same meaning as in Section
1-20 of the Illinois Administrative Procedure Act” (20 ILCS 3420/3(b) (West 2016)), which excludes
“units of local government and their officers” (5 ILCS 100/1-20 (West 2016)).
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including actions “carried out pursuant to a State *** permit *** or other form of entitlement
or permission.” (Emphases added.) 20 ILCS 3420/3(f) (West 2016). “Undertakings” conducted
by units of local government like the PBC are not excluded from this definition. To the
contrary, the legislature’s use of the broadly inclusive phrase “any project, activity, or
program” plainly evinces its intent to include “undertakings” conducted by units of local
government. Where the language of a statute is clear, we may not read into its exceptions,
limitations, or conditions that the legislature did not express, and we will give it effect as
written. Harrisonville Telephone Co. v. Illinois Commerce Comm’n, 212 Ill. 2d 237, 251
(2004); In re County Treasurer & ex officio County Collector, 373 Ill. App. 3d 679, 685
(2007). Accordingly, an “undertaking” under the statute (which includes any project requiring
a state agency permit that threatens a historic resource) may not commence until the
Preservation Act’s consultation requirements have been satisfied, regardless of whether it is
carried out by the state, by a private party, or, as here, by a unit of local government.
¶ 60 We have reached this conclusion based upon the Preservation Act’s plain and unambiguous
language. However, we note that we would reach the same conclusion even if we were to find
the Preservation Act to be ambiguous as to this issue. In its amicus brief, the IDNR argues that
the defendants’ proposed demolition of the courthouse is an “undertaking” under the
Preservation Act because it would be carried out pursuant to a state permit (i.e., the IEPA’s
water discharge permit). The IDNR notes that applying the Preservation Act to all
“undertakings” conducted pursuant to state permits, even those conducted by units of local
government, is consistent with the IDNR’s longstanding practice. Because the IDNR is the
state agency charged with administering and enforcing the Preservation Act, its interpretation
of an ambiguous provision in the Preservation Act is entitled to substantial weight and
deference. Crittenden v. Cook County Comm’n on Human Rights, 2013 IL 114876, ¶ 19;
People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 46 (2002); Abrahamson v. Illinois
Department of Professional Regulation, 153 Ill. 2d 76, 97-98 (1992). 7 That is so even if the
IDNR has articulated its interpretation for the first time in an amicus brief (instead of a formal
rulemaking proceeding or agency adjudication), unless there is reason to believe that the
interpretation is merely a post hoc, self-interested litigation position that does not reflect the
agency’s considered judgment on the matter or the interpretation conflicts with prior agency
decisions or clearly conflicts with the statute at issue. Christopher v. SmithKline Beecham
Corp., 567 U.S. 142 (2012); see also Chase Bank USA, N.A. v. McCoy, 562 U.S. 195 (2011);
Auer v. Robbins, 519 U.S. 452, 461-62 (1997). None of those circumstances exist here. As the
IDNR notes, the interpretation of the Preservation Act advanced in its legal brief is consistent
with the IDNR’s past practice. The defendants do not deny this. Accordingly, the IDNR’s
position in this case represent its considered judgment rather than a post hoc, self-interested
litigation position. Further, as noted above, the IDNR’s position is consistent with the act’s
plain language. Thus, even if there were some ambiguity about the Preservation Act’s
application to the demolition as issue in this case, which there is not, we would defer to the
IDNR’s interpretation that the Preservation Act applies.
7
The defendants argue that the plaintiffs forfeited this argument by not raising it before the trial
court. However, forfeiture is a limitation on the parties, not on the court, and a reviewing court may
ignore forfeiture in order to achieve a just result. In re Amanda H., 2017 IL App (3d) 150164, ¶ 33.
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¶ 61 We also reject the defendants’ argument that they may not be enjoined from violating the
Preservation Act’s requirements. In this case, the IDNR timely advised the PBC that the
courthouse is a “historic resource” within the meaning of the Preservation Act and that the
PBC’s proposed demolition would result in an adverse impact on a historical resource and was
therefore subject to review under section 4 of the Preservation Act. The IDNR also directed
the PBC not to conduct any demolition activities until statutorily mandated consultation
process between IDNR and IEPA was completed, and it encouraged the PBC to participate in
that consultation process (as contemplated by the Preservation Act). Nevertheless, despite
initially notifying the IDNR (through its contractor/agent) of the proposed demolition and
seeking the IDNR’s input as to the Preservation Act’s requirements, the PBC ignored the
IDNR’s directive and planned to conduct the demolition before the consultation process had
been completed, in clear violation of the Preservation Act. Under these circumstances, the
plaintiffs properly sued to enjoin the defendants from demolishing a publicly owned historic
resource before the statutorily required consultation between IDNR and IEPA had occurred.
The issuance of an injunction is proper to prevent public officials, including units of local
government and their officers, from taking actions that are outside the scope of their authority
or otherwise unlawful. Village of Westmont v. Lenihan, 301 Ill. App. 3d 1050, 1060 (1998);
see also Lindsey v. Board of Education of the City of Chicago, 127 Ill. App. 3d 413, 422 (1984).
Here, defendants intend to defy the IDNR’s directive that they halt the proposed demolition of
the courthouse until the consultation process mandated by the Preservation Act has taken place.
The defendant’s plan to demolish the building in defiance of the IDNR’s directive would
circumvent, and therefore thwart, the Preservation Act’s mandatory procedural requirements
that govern the undertaking at issue in this case. If the demolition planned by the defendants
in this case cannot be enjoined until the statute’s consultation requirements have been satisfied,
then those requirements would be rendered so toothless as to be meaningless.
¶ 62 Moreover, it is significant that the plaintiffs are seeking only injunctive relief, not tort
damages. They are merely seeking to enforce their protectable right to ensure that the public
entity defendants do not act in a manner that would frustrate the proper operation of the law.
Accordingly, the plaintiffs do not need to demonstrate that the Preservation Act creates an
implied right of action for damages in order to proceed with their claims for injunctive relief.
See generally Village of Westmont, 301 Ill. App. 3d at 1060; Lindsey, 127 Ill. App. 3d at 422;
Lombard Historical Comm’n, 366 Ill. App. 3d at 718; Hill, 107 Ill. App. 3d at 725; Noyola v.
Board of Education of the City of Chicago, 179 Ill. 2d 121 (1997).
¶ 63 The defendants concede that no published Illinois cases address whether nonstate agency
defendants may be enjoined from destroying a historic building pending the conclusion of the
Preservation Act’s mandatory consultation process where, as here, that process is alleged to
have been properly instituted by the IDNR. In arguing for that proposition, the defendants rely
upon three federal cases applying the National Historical Preservation Act (NHPA) (54 U.S.C.
§ 306108), which the defendants assert is “analogous” to the Preservation Act. The cases cited
by the defendants, all of which were decided by the United States Court of Appeals for the
Second Circuit, hold that only federal agencies may be sued for violating the NHPA. See
Preservation Coalition of Erie County v. Federal Transit Administration, 356 F.3d 444, 455
(2d Cir. 2004); Western Mohegan Tribe & Nation of New York v. New York, 246 F.3d 230 (2d
Cir. 2001); Vieux Carre Property Owners, Residents & Associates, Inc. v. Brown, 875 F.2d
453, 457-58 (2d Cir. 1989). However, federal decisions applying the NHPA are split on the
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question of whether parties other than federal agencies may be enjoined from harming a
historic property protected by the NHPA pending the completion of consultation and review
procedures mandated by the NHPA. In contrast to the Second Circuit cases cited by the
defendants, the United States Court of Appeals for the Third Circuit affirmed a federal district
court order enjoining a unit of local government from destroying a building under
circumstances similar to those presented here. Morris County Trust for Historic Preservation
v. Pierce, 714 F.2d 271 (3d Cir. 1983) (affirming district court’s order permanently enjoining
the demolition of a protected building by the Town of Dover Redevelopment Authority, which
owned the building, until such time as the federal Department of Housing and Urban
Development conducted a historical and cultural resource review of the building pursuant to
NHPA); see also D.C. Federation of Civic Associations v. Adams, 571 F.2d 1310 (4th Cir.
1978) (stating that the court would be willing to enjoin nonagency actions if it were not ruling
that the agency had in fact complied with the NHPA).
¶ 64 The trial court dismissed the plaintiffs’ complaint for an additional reason. Specifically,
the trial court held that the proposed demolition in this case does not constitute an
“undertaking” under the Preservation Act because the IEPA would merely be approving “how
they decide to run the water when [the courthouse] is ultimately taken down” and would not
be approving the demolition itself. That was error. As noted above, the Preservation Act plainly
defines an “[u]ndertaking” to include “any project, activity or program that can result in
changes in the character or use of historic property” where such project, activity, or program
is “licensed or assisted by a State agency,” including actions “carried out pursuant to a State
*** permit *** or other form of entitlement or permission.” (Emphasis added.) 20 ILCS
3420/3(f) (West 2016). The Preservation Act does not require that the permit authorize the
ultimate proposed undertaking (such as the actual demolition of the building in this case).
Rather, the Preservation Act’s provisions are triggered whenever an “undertaking” is “carried
out pursuant to a State *** permit.” Id. Here, the demolition project will be “carried out
pursuant to” the IEPA’s storm water drainage permit because the defendants must obtain that
permit in order to complete the demolition project. The Preservation Act therefore applies. The
trial court’s conclusion that the Preservation Act applies only if the entire proposed project is
subject to state agency approval represents an unduly narrow construction that contradicts the
Preservation Act’s plain terms and would frustrate the Preservation Act’s expressed purposes.
¶ 65 Echoing the trial court’s reasoning, the defendants argue that (1) section 4(a) of the
Preservation Act provides, in relevant part, that prior to the approval of the “final design or
plan” of any undertaking by a state agency, “written notice of the project shall be given to the
[IDNR] Director by the State agency or by the recipients of its *** permits or licenses” and
(2) here, the IEPA is not affirmatively “approving” anything, much less the “final design and
plan” of the demolition or the demolition site plan. The defendants maintain that, because of
the unique nature of the IEPA permitting process, the IEPA does not need to affirmatively give
permission for the PBC to use the water permit; rather, the PBC files a NOI to use the IEPA’s
general stormwater drainage permit, and unless the IEPA informs the PBC within 30 days that
it may not use the permit (which was not alleged to have happened in this case), the PBC may
use the permit and proceed with demolition without any “sign off” from the IEPA. Moreover,
the defendants argue that, because the PBC’s use of the water permit would not occur until
after the demolition, the IEPA’s permitting authority in this case could have no effect on the
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actual demolition. Thus, according to the defendants, the Preservation Act’s consulting
requirements were not triggered by the IEPA’s permitting process in this case.
¶ 66 We do not find these arguments to be persuasive. As noted above, by its plain terms, the
Preservation Act applies to any project that threatens a historic resource where the project is
“carried out pursuant to” a state permit. In their complaint, the plaintiffs alleged that proposed
demolition at issue here must be carried out pursuant to a state permit because the demolition
necessitates “a permit from the *** IEPA *** to discharge storm water associated with the
construction site.” The plaintiffs attached to their complaint the IEPA’s permit form, which
contains a section for the applicant to certify that the project has been submitted to the “Historic
Preservation Agency.” The plaintiffs also provided URL of the “Construction Permit
Requirements” listed on the IEPA’s website that state that IEPA permit applicants are not
authorized to proceed as if they have a permit until “the project has received sign-off from
IDNR and IHPA that the project complies with *** historic preservation laws.” See NPDES
Permit for Construction Activities, Ill. Envtl. Prot. Agency, https://www2.illinois.gov/epa/-
topics/forms/water-permits/storm-water/Pages/construction.aspx (last visited July 9, 2020)
[https://perma.cc/6R6S-443T] (stating that, unless the permit applicant receives a notice of
incompleteness letter from the IEPA, the permit applicant receives coverage under the
stormwater general NPDES permit automatically, and operators are authorized to discharge
stormwater from construction sites under the terms and conditions of the permit 30 days after
the date the NOI is received by the agency, “provided the project has received sign-off from
IDNR and IHPA that the project complies with endangered species and historic preservation
laws and the appropriate application fee has been received by the Agency” (emphasis added)).
Accordingly, the plaintiffs have sufficiently alleged that the IEPA’s permitting process triggers
the application of the Preservation Act to the demolition at issue in this case. The defendants’
argument that the defendants may use the IEPA permit and proceed with the demolition
without receiving any affirmative “approval” from the IEPA, IDNR, or other state agency is
belied by the documents that the plaintiffs submitted with their complaint. Moreover, the fact
that the IEPA’s permission is presumed upon the filing of a NOI by the permit applicant unless
the IEPA says otherwise (or unless the applicant fails to obtain the IDNR’s authorization
pursuant to the Preservation Act) does not change the fact that IEPA permission is required for
the “undertaking” at issue. At most, the arguments raised by the defendants present an issue of
fact that may not be appropriately resolved on a motion to dismiss.
¶ 67 As an additional reason for its dismissal, the trial court suggested that the plaintiffs’
interpretation of the Preservation Act was so broad that it would “overtake the statute” and
lead to absurd results. The court noted that, if it were to find that merely applying for the type
of permit issued by the IEPA would trigger the Preservation Act, than the Preservation Act
would apply to “[e]very individual who had to get a permit to remove their shed from their
back yard or get a permit to take something down that happened to be in the way” and
“whenever the County was building a road and *** had to get a particular permit for something
that occurred afterwards.” These concerns are grossly exaggerated, however, because the
Preservation Act would apply in such cases only if the project at issue both threatens a historic
resource and requires a permit from a state agency to proceed. Obviously, removing a shed
from one’s backyard is unlikely to do either of these things, and the vast majority of permits
relating to road construction will not involve threats to historic resources. Thus, we find the
trial court’s concerns to be unfounded.
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¶ 68 The defendants further argue that using the Preservation Act to “override” Chief Judge
Braud’s administrative order directing the defendants to demolish the courthouse would
infringe upon the chief judge’s constitutional authority and violate the separation of powers.
The Illinois Constitution provides the chief judge with “general administrative authority over
his court,” including “the authority to provide *** for appropriate times and places of holding
court.” Ill. Const. 1970, art. VI, § 7(c). The defendants argue that this includes the authority to
demolish the adjacent dilapidated and vacant courthouse, if, as both the chief judge and the
Board found, such demolition is necessary to ensure that the new judicial facilities in the Annex
are safe and suitable to carry out the court’s judicial functions. According to the defendants, if
the IDNR (an agency of the executive branch) were able to contravene these decisions by Chief
Judge Braud and the Board, it would infringe the powers of both the judicial and legislative
branches, thereby offending separation of powers principles.
¶ 69 The Illinois Constitution provides that no branch of government shall exercise powers
properly belonging to another. Ill. Const. 1970, art. II, § 1. In addition, separation of powers
principles mandate that “[a] statute cannot conflict with court rules or unduly infringe upon
inherent judicial powers.” Morawicz v. Hynes, 401 Ill. App. 3d 142, 150 (2010); see also
People v. Bainter, 126 Ill. 2d 292, 302-03 (1989). Moreover, there is “no basis to doubt the
inherent power of the courts to protect themselves and require production of the facilities,
personnel and resources reasonably necessary to enable them to perform their judicial
functions with efficiency, independence and dignity.” (Internal quotation marks omitted.)
Knuepfer v. Fawell, 96 Ill. 2d 284, 292 (1983). However, because “the public interest requires
that the three branches in our system of government work cooperatively and in harmony,” these
inherent powers of the judiciary must be exercised “sparingly” and only in “exigent
circumstances,” particularly when the exercise of judicial power would intrude on the
prerogatives of the executive or legislative branches of government. Id.¶ 70 Chief Judge Braud’s administrative order cannot prevent the application of the Preservation
Act’s requirements to the proposed demolition of the courthouse in this case. As an initial
matter, contrary to the defendants’ assertion, the IDNR’s initiation of the consultation process
required by the Preservation Act and its directive to the defendants to halt the demolition
pending the completion of that process was not an attempt to “override” the chief judge’s order.
The chief judge’s order was not issued until after the IDNR directed the defendants to stop the
demolition. Thus, if anything, the chief judge’s order was an attempt to override the actions
the IDNR took pursuant to the Preservation Act.
¶ 71 Moreover, it is unlikely that a chief judge’s constitutional authority to determine the
“appropriate times and places to hold court” includes the authority to demolish a publicly
owned building where court is not held. Nor does a court’s authority to “protect [itself]” and
to “require production of the facilities, personnel and resources reasonably necessary to enable
[it] to perform [its] judicial functions with efficiency, independence and dignity” include the
power to order a nonjudicial branch of government to destroy a historical resource that is not
owned or used by the judiciary, and to declare the demolition immune from the Preservation
Act or from other applicable laws on the basis of separation of powers. Such an overly
expansive construction of judicial powers would infringe upon the rightful authority of the
legislative and executive branches.
¶ 72 But even assuming arguendo that Chief Judge Braud would have had the inherent authority
under certain circumstances to order the demolition of a historically significant former
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courthouse to promote the safety of the Annex, the manner in which he exercised his purported
authority in this case was unlawful. Chief Judge Braud’s administrative order was procedurally
deficient. “[I]t is essential that any such administrative orders be entered only after a hearing
of which adequate notice is given and at which all interested parties are afforded an opportunity
to present their views.” Id. at 294-95. That did not occur here. Chief Judge Braud issued his
administrative order requiring the demolition of the courthouse in this case without conducting
a hearing, without allowing plaintiffs or other interested parties to intervene or to challenge the
administrative order in any way, and without even considering the courthouse’s historic status
or the application of the Preservation Act. Accordingly, the chief judge’s administrative order
was improperly issued.
¶ 73 Because the inherent powers of the judiciary must be exercised “sparingly” and only in
“exigent circumstances,” particularly when the exercise of judicial power would intrude on the
prerogatives of the executive or legislative branches of government, the most prudent course
of action would have been for the chief judge to have refrained from issuing an administrative
order to demolish the courthouse until the relatively brief consultation process mandated by
the Preservation Act had run its course. In any event, the chief judge was required to hold a
proper hearing on the matter before ordering the demolition. Because the chief judge failed to
do so in this case, we need not defer to his demolition order. Under the circumstances presented
here, halting the demolition pending the completion of the consultation process prescribed by
the Preservation Act would not violate the separation of powers or be otherwise improper.
¶ 74 Accordingly, we reverse the trial court’s dismissal of the plaintiffs’ claim under the
Preservation Act, and we remand for further proceedings on that claim. Pursuant to our
authority under Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994), we direct the trial
court on remand to reinstate and extend the TRO until the consultation process required by the
Preservation Act has been completed.
¶ 75 4. The Plaintiffs’ Commission Act Claims
¶ 76 The plaintiffs also allege that the defendants’ plans to demolish the courthouse would
violate the Commission Act in two respects. In count II of their complaint, the plaintiffs allege
that the defendants have resolved to demolish the courthouse without satisfying the
Commission Act’s requirements for the approval of a new “site” (i.e., without obtaining
approval of the demolition either by three-fourths of the Rock Island City Council or by a
majority of voters in a referendum, as required by section 14(a)(1) of the Commission Act (50
ILCS 20/14(a)(1) (West 2016)). In count III of their complaint, the plaintiffs allege that the
demolition of the courthouse would constitute an illegal and unwarranted expansion of the
Commission Act’s purpose to “provide a good and sufficient jail.” The trial court dismissed
both counts pursuant to section 2-615 for failure to state a claim. We will address each claim
in turn.
¶ 77 A. Whether the Proposed Demolition Comports
With the Commission Act’s Site Approval Requirements
¶ 78 The Commission Act grants a public building commission the power “[t]o select, locate,
and designate *** one or more areas *** as the site or sites to be acquired for the erection,
alteration or improvement of a building or buildings, public improvement or other facilities.”
Id. § 14(a). Where the original resolution for the creation of the public commission has been
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adopted by the governing body of the county, as here, “the site or sites selected *** are subject
to approval by a majority of the members of the governing body of the county and to approval
by 3/4 of the members of the governing body of the county seat.” Id. § 14(a)(2).
¶ 79 “[I]f such site or sites so selected *** are not approved by 3/4 of the members of the
governing body of the county seat the Commission may by resolution request that the approval
of the site or sites so selected *** be submitted to a referendum at the next general election in
accordance with the general election law.” Id. If a majority of the electors voting on the
proposition vote in favor of the proposition, the site or sites so selected shall be approved. Id.
The Commission Act further provides that, “[e]xcept where approval of the site or sites has
been obtained by referendum, the area or areas may be enlarged by the Board of
Commissioners, from time to time, as the need therefor arises.” (Emphasis added.) Id.
¶ 80 The Commission Act also gives a public building commission the power “[t]o demolish,
repair, alter or improve any building or buildings within the area or areas” and to “maintain
and operate” any new buildings it constructs with the area or areas so as to effectuate the
purposes of the Commission Act. Id. § 14(c).
¶ 81 Applying these statutory provisions, the plaintiffs argue that the defendants may not
demolish the courthouse without first obtaining approval of a new “site” in the manner
prescribed by section 14(a)(1) of the Commission Act. Specifically, the plaintiffs maintain that
the demolition must be approved by the Board and by either a majority of voters in a
referendum or three-fourths of the members of the governing body of the county seat, i.e., the
Rock Island City Council (Council). Neither the voters nor the Council have approved the
proposed demolition in this case. Accordingly, the plaintiffs argue that they are entitled to an
injunction barring the demolition pursuant to the Commission Act.
¶ 82 The trial court rejected the plaintiffs’ argument and dismissed count II of their complaint
with prejudice under the Commission Act because it found that section 14(c) of the
Commission Act authorized the PBC to “demolish *** any building or buildings” within the
“area” of a previously approved site without having to seek and obtain approval for a new
“site” pursuant to section 14(a) of the Commission Act.
¶ 83 We agree. Although the Commission Act requires a PBC to obtain approval for a new “site
or sites to be acquired for the erection, alteration, or improvement of a building or buildings,
public improvement or other facilities,” the Commission Act clearly indicates that, once a
project “site” has been selected, acquired, and properly approved under section 14(a), the
project “area” “may be enlarged *** as the need arises” unilaterally by the Board, without the
need for the Board to seek prior approval of such enlargement from the Council, the public, or
any other entity, unless the initial approval of the site was obtained by referendum. Id.
§ 14(a)(2). The plaintiffs have not alleged that the initial approval of the project site for the
provision of a new jail was obtained by referendum. Nor have they alleged that the Annex
project was approved by referendum. To the contrary, they concede that it was not. 8
8
The plaintiffs argue that the defendants were “statutorily required to” (but did not) seek approval
for the Annex project through a referendum because they failed to obtain approval for that project from
a supermajority of the Council, as required by section 14(a)(2) of the Commission Act. The plaintiffs
maintain that, “[b]y claiming authority to enlarge an area that needed to be approved through a
referendum—but was not—the *** PBC attempts to bootstrap one statutory violation to permit
another.” This argument presumes that the Annex project required prior approval of a new “site” under
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Accordingly, even assuming that the initial project “area” for work on the jail and Annex
needed to be “enlarged” in order to cover the adjacent courthouse, the Board was clearly
authorized to make such an enlargement pursuant to the Commission Act. Id. And, once the
Board enlarges the work area, the Commission Act expressly authorizes it to “demolish” any
building in the enlarged area. Id. § 14(c). Thus, the trial court properly dismissed count II of
the plaintiffs’ complaint because the demolition proposed in this case would not violate the
Commission Act.
¶ 84 The plaintiffs argue that, because the Commission Act uses the terms “site” and “area”
interchangeably throughout section 14 (and because the terms are not defined in the
Commission Act), the legislature must have intended the two terms to mean the same thing.
From this, the plaintiffs’ reason that the Board may not begin working in a new “area” without
obtaining prior approval for a new “site” in the manner prescribed by section 14(a). This
argument proves too much. If “site” and “area” mean the same thing, then section 14(a) must
be read as authorizing the Board to enlarge a previously approved “site” unilaterally without
getting further approval from the Council or from voters. Otherwise, on plaintiffs’ reading, the
provision in section 14(a)(2) authorizing the Board to enlarge an “area” unilaterally as the need
arises would have no application and would effectively be read out of the statute. If the Board
could enlarge the site/area only by satisfying section 14(a)’s new site approval requirements,
then section 14(a)(2)’s provision allowing the Board to “enlarge” the site/area would be
rendered superfluous at best and meaningless at worst. We will not interpret the Commission
Act in this manner. See Sylvester v. Industrial Comm’n, 197 Ill. 2d 225, 232 (2001) (ruling that
a reviewing court must read a statute as a whole and “construe the statute so that each word,
clause, and sentence, if possible, is given a reasonable meaning and not rendered superfluous
[citation], avoiding an interpretation which would render any portion of the statute meaningless
or void”); see also Board of Education of Gardner-South Wilmington High School District 73
v. Village of Gardner, 2014 IL App (3d) 130364, ¶ 16. Accordingly, even assuming arguendo
that the courthouse (which is located only 40 feet from the Annex) is not within the site/area
of either the jail or the Annex, the Board had the authority to enlarge the preexisting site/area
to encompass the courthouse. 9
the Commission Act. That presumption seems dubious because it is undisputed that the Annex building
is contiguous with the jail. In any event, the plaintiffs did not allege facts in their complaint supporting
their legal conclusion that Council or voter approval of a new site was required before the PBC was
authorized to enlarge the initial project area to include the building of the Annex. The plaintiffs point
to the PBC’s June 17, 2015, resolution approving the “site” to be acquired, altered, and improved by
the PBC for the Annex project. Contrary to the plaintiffs’ argument, however, this does not constitute
an admission by the PBC that the Annex project “site” required prior approval of the Council or the
public. To the contrary, the fact that the PBC approved the new area for the Annex project unilaterally
on June 17, 2015, without seeking such approval suggests that the PBC believed otherwise.
9
Because we find that the Board had the authority to enlarge the preexisting site/area under section
14(a)(2) without obtaining prior approval of the Council or the public, we do not need to address the
defendants’ alternative argument that the Board did not need to obtain the Council’s prior approval
because the project at issue was intended for use by the county.
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¶ 85 B. Whether the Demolition of the Courthouse
Is Within the PBC’s Existing Purpose
¶ 86 The PBC was established by the Board on October 1, 1981, for the “sole purpose *** of
exercising the powers and authority of [the Commission Act] to provide a good and sufficient
jail for the use of Rock Island County.” In count III of their complaint, the plaintiffs allege that
the PBC’s proposed demolition of the courthouse is outside of this express and limited purpose.
The Commission Act provides that a public building commission’s purpose may be expanded
only after such expansion has been approved by voters.
“The purpose of a public building commission created by the county board of any
county may not be expanded until the question of expanding the purpose of the public
building commission has been submitted to the electors of the county at a regular
election and approved by a majority of the electors voting on the question.” 50 ILCS
20/4a (West 2016)
In this case, the voters were never asked to decide whether the Commission Act’s existing
purpose of providing a good and sufficient jail should be expanded to include demolishing the
historic courthouse. Thus, the plaintiffs argue, the proposed demolition would be an improper
expansion of the PBC’s purpose in violation the Commission Act.
¶ 87 The trial court rejected the plaintiffs’ argument and dismissed count III of the plaintiffs’
complaint under section 2-615 for failure to state a claim. The trial court concluded that “[t]his
issue was already decided” in the 2015 Litigation “when it was determined that the [A]nnex
was under the umbrella of the PBC’s purpose” because “[c]ommon sense tells you if it is the
purpose of the commission to build[ ] the new courthouse, how is it not the same purpose to
tear the old one down?” The court further reasoned that “[t]o determine otherwise *** would
require counties to create multiple commission boards,” one “to erect every building they
wanted to” and “a subsequent board to tear down the building that it replaced.” The court ruled
that “[c]ertainly that’s not what the legislature had in mind.”
¶ 88 Given the circuit court of Henry County’s ruling in the 2015 Litigation, we have no choice
but to affirm the trial court’s dismissal of count III in this case. The quo warranto judgment
does not have res judicata or collateral estoppel effect in this case as to the question of whether
the demolition of the courthouse is within the PBC’s purpose because the issue of demolishing
the courthouse was not decided and was not and could not have been raised in the quo warranto
litigation. 10 Nevertheless, the quo warranto judgment does preclude the plaintiffs from
arguing that the building of the Annex was outside of the PBC’s existing purpose to build a
10
Under the doctrine of res judicata, “a final judgment rendered by a court of competent jurisdiction
on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes
an absolute bar to a subsequent action involving the same claim, demand, or cause of action.” J & R
Carrozza Plumbing Co. v. Industrial Comm’n, 307 Ill. App. 3d 220, 223 (1999). To establish
res judicata, a party must show, inter alia, that the former adjudication involved the same cause of
action and same subject matter of the later case. Id.; see also River Park, Inc. v. City of Highland Park,
295 Ill. App 3d 90 (1998); Hannigan v. Hoffmeister, 240 Ill. App. 3d 1065, 1075-76 (1992). Collateral
estoppel precludes the relitigation of a factual or legal issue decided in a prior adjudication only if,
inter alia, (1) the issue decided in the prior adjudication is identical to the issue in the current action,
(2) the issue was “necessarily determined” in the prior adjudication, and (3) the party had a full and fair
opportunity to contest the issue in the prior adjudication. City of Chicago v. Illinois Workers’
Compensation Comm’n, 2014 IL App (1st) 121507WC, ¶ 51.
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good and sufficient jail for the county of Rock Island. See In re Petition to Create Emmett-
Chalmers Fire Protection District, 58 Ill. App. 3d 897, 904 (1978) (judgment in a quo
warranto proceeding that a fire protection district was legally created was res judicata and
therefore barred petitioners in a subsequent lawsuit from challenging the legality of the
district’s existence, even though those petitioners were not parties in the prior quo warranto
action); see also People ex rel. Lewis v. Whittaker, 254 Ill. 537, 541-42 (1912). Because the
quo warranto judgment was not appealed, it may not be challenged here.
¶ 89 In its July 17, 2018, “Resolution of Authority to Enter Into An Intergovernmental
Agreement” with the PBC to demolish the courthouse, the Board made legislative findings that
(1) “the *** courthouse is currently in a state of functional decrepitude with insufficient
County funds to rehabilitate it,” (2) “to date[,] no realistic solution for the preservation of the
courthouse has been identified,” and (3) “the future demolition of the *** courthouse is
necessary for the maintenance and security of the Justice Center and the Justice Center Annex
project.” “[L]egislative fact finding authority is broad and should be accorded great deference
by the judiciary.” (Internal quotation marks omitted.) Empress Casino Joliet Corp. v.
Giannoulias, 231 Ill. 2d 62, 75 (2008). Courts are not empowered to adjudicate the accuracy
of legislative findings, and the legislature is not required to convince a reviewing court of the
correctness of its judgment. Id. Courts grant the same level of deference to legislative fact
findings done by municipalities in municipal ordinances. Independent Voters of Illinois
Independent Precinct Organization v. Ahmad¸ 2014 IL App (1st) 123629, ¶¶ 38, 41. Further,
“the county board is itself the judge of the necessity of building” and maintaining a county
courthouse. County of Coles v. Goehring, 209 Ill. 142, 166 (1904) (deference to a county
board’s decision). Because the quo warranto proceeding determined that the building of the
Annex was within the PBC’s purpose of building a good and sufficient jail, the Board’s
legislative finding that the demolition of the “decrepit[ ] courthouse is necessary for the
maintenance and security of the Justice Center Annex project” (a finding that is entitled to
deference) establishes that the demolition of the courthouse is within the PBC’s existing
purpose.
¶ 90 We consider the Henry County circuit court’s quo warranto judgment to be indefensible,
and if that judgment had been appealed, we would have reversed it. As a matter of simple logic,
we find it difficult to understand how the purpose of building a jail includes the purpose of
building a courthouse (which is what the Annex essentially is). Moreover, the circuit court of
Henry County expressly found that the building of the Annex “enhanced” the PBC’s existing
purpose of building a jail. By definition, that means that the building of the Annex was not
already included in the PBC’s existing purpose. See Merriam-Webster Online Dictionary,
www.merriam-webster.com/dictionary/enhance (last visited July 10, 2020) [https://perma.cc/
EX6Q-X5AX] (defining “enhance” as “heighten, increase”). We find the circuit court’s
expansion of the PBC’s purpose to include the building of a new courthouse particularly
inappropriate here because (1) the Board had already acknowledged that the PBC lacked the
authority to build a new courthouse under its initial purpose of providing a good and sufficient
jail for Rock Island County and (2) the Board therefore put the matter to the voters via
referendum (in order to follow the requirements of the Commission Act) and the voters
overwhelmingly rejected the proposal to expand the PBC’s purpose to build a courthouse.
However, because the quo warranto judgment was never appealed, and because of the Board’s
subsequent legislative findings, we are constrained to affirm the dismissal of count III. Emmett-
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Chalmers Fire Protection District, 58 Ill. App. 3d at 904; People ex rel. Lewis, 254 Ill. at 541-
42.
¶ 91 In addition, we note that the Board also made a legislative finding that the demolition of
the courthouse was necessary for the maintenance and security of the “Justice Center” itself,
which includes the jail building and some courthouses and other judicial facilities inside that
building. Maintaining the jail building and keeping it safe and secure would fall within the
PBC’s initial purpose of providing a good and sufficient jail, even without the highly
questionable 2015 quo warranto judgment. Moreover, maintaining and securing the Justice
Center (which was built to effectuate the purposes of the Commission Act), as well as
demolishing other buildings within the expanded “area” of the Justice Center, falls within the
PBC’s statutory authority under the Commission Act. 50 ILCS 20/14(c) (West 2016).
Accordingly, under the circumstances presented in this case, the plaintiffs can prove no set of
facts that would entitle them to relief on count III of their complaint. Dismissal of that count
was therefore proper.
¶ 92 CONCLUSION
¶ 93 For the reasons set forth above, we affirm the judgment of the circuit court of Rock Island
County dismissing the plaintiffs’ claims under the Commission Act (counts II and III). We
reverse the trial court’s dismissal of the plaintiffs’ claim under the Preservation Act (count I)
and remand for further proceedings on that claim. We direct the trial court on remand to enter
a TRO barring the demolition of the courthouse until the consultation process required by the
Preservation Act has been completed.
¶ 94 Affirmed in part and reversed in part; cause remanded.
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