Board of Education of Richland School District No. 88A v. City of Crest Hill , 2021 IL 126444 ( 2021 )

2021 IL 126444IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 126444)
THE BOARD OF EDUCATION OF RICHLAND SCHOOL DISTRICT NO. 88A,
Appellee, v. THE CITY OF CREST HILL, Appellant.
Opinion filed September 23, 2021.
JUSTICE OVERSTREET delivered the judgment of the court, with opinion.
Chief Justice Anne M. Burke and Justices Garman, Theis, Neville, Michael J.
Burke, and Carter concurred in the judgment and opinion.
OPINION
¶1 The appellee, the Board of Education of Richland School District No. 88A
(School Board), sought equitable relief in the Will County circuit court from
ordinances enacted by the appellant, the City of Crest Hill (Crest Hill), creating a
real property tax increment financing (TIF) district and attendant redevelopment
plan and project, pursuant to the Tax Increment Allocation Redevelopment Act
(TIF Act) (65 ILCS 5/11-74.4-1 et seq. (West 2018)). The School Board
complained that Crest Hill created the district in violation of the TIF Act by, among
other things, including parcels of realty in the redevelopment project area that were
not contiguous. Both parties filed cross-motions for summary judgment, and the
circuit court granted summary judgment in favor of Crest Hill. The School Board
appealed, and the Appellate Court, Third District, reversed the circuit court’s order.
For the following reasons, we affirm the judgment of the appellate court and reverse
the judgment of the circuit court.
¶2 I. BACKGROUND
¶3 We limit our review of the facts to those relevant to our determination on
appeal. In 2017, Crest Hill sought to establish the Weber Road Corridor TIF District
(Weber TIF District) pursuant to the provisions of the TIF Act (id.) and adopted
corresponding TIF ordinances (City of Crest Hill Ordinance Nos. 1758, 1759, 1760
(eff. Nov. 20, 2017)). TIF ordinance number 1758 provided, inter alia, that Crest
Hill had determined that the parcels of real property proposed to form the
redevelopment project area of the Weber TIF District were contiguous as required
by the TIF Act (65 ILCS 5/11-74.4-4(a) (West 2018)).
¶4 On January 2, 2018, the School Board filed suit requesting the circuit court to
declare Crest Hill’s TIF ordinances invalid, illegal, and void ab initio and to enjoin
Crest Hill’s implementation of the Weber TIF District and execution of its
redevelopment project and plan. The School Board alleged that Crest Hill’s TIF
ordinances were invalid due to noncompliance with the statutory mandates of the
TIF Act (65 ILCS 5/11-74.4-1 et seq. (West 2018)). The School Board asserted,
inter alia, that the northwestern portion of the Weber TIF District did not touch or
adjoin in any substantial physical sense the remainder of the Weber TIF District
and, therefore, the parcels in the redevelopment project area were not contiguous,
as required by section 11-74.4-4(a) of the TIF Act. Id. § 11-74.4-4(a). For context,
we have included notated maps of the Weber TIF District, previously published in
the appellate court’s opinion, immediately below.
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Map 1—TIF District Map
234.9 foot 68 feet of
portion or the Randlch
Natural Gas Road
Rlght or Way
Parcel B
Parcel C --+-f"ll!l!I
Intersection
of Weber
Road and
W. Division
Street
Map 2—Enlarged TIF District Map with Measurements and Highlighted Boundary
Parcel B RAt· 01( ~ 90
• ~ + - - - -234,9toot
~,on of ne
Nalun:u Gas
RlgJ;I o1 Way
Parcel C n1e~ctlon of Wi>ber Road and W. Division St,eet
-3-
¶5 Parcels A, B, and C in the depictions were annexed to Crest Hill in 2000 and
2002. City of Crest Hill Ordinance No. 1149 (eff. July 17, 2000); City of Crest Hill
Ordinance No. 1150 (eff. July 17, 2000); City of Crest Hill Ordinance No. 1245
(eff. May 20, 2002). The strip of land running parallel and adjacent to parcels A
and B for 234.9 feet, as shown in the depictions, is owned by Natural Gas Pipeline,
a utility company located in Houston, Texas. See 2019 Levy Real Estate Tax
Information, Will County Treasurer, http://willtax.willcountydata.com/maintax/
ccgis52?1104203000080000 (last visited July 22, 2020) [https://perma.cc/X2C6-
AC33]; see also People v. Johnson, 2021 IL 125738, ¶ 54 (“Illinois courts often
take judicial notice of facts that are readily verifiable by referring to sources of
indisputable accuracy” such as court records or public documents, including
records on government website). 1
¶6 The School Board attached to its complaint the “Weber Road Corridor TIF
Redevelopment Plan and Project” prepared for Crest Hill in July 2017 by Camiros,
Ltd., a planning firm dealing in tax increment allocation and redevelopment
financing in Illinois. This document noted that the “triangular-shaped area of land
located north of Division Street [wa]s excluded from the [Weber TIF District]
because it [wa]s *** unincorporated and *** not being annexed into *** Crest Hill
at [the] time. This excluded area include[d] a natural gas utility pipeline right-of-
way that extend[ed] through the northeast quadrant of the [p]roject [a]rea.”
¶7 In its answer to the School Board’s argument that the Weber TIF District lacked
contiguity, Crest Hill asserted that “[t]he property north of Division Street ha[d] a
common border with the property to the west of the excluded utility pipeline, which
[was] a 100[-]foot[-]wide public utility right-of-way, of 234.9 feet.” Crest Hill
noted that parcels A and B were found to be contiguous when annexed by excluding
this public utility right-of-way. Crest Hill further noted that “[t]he width of
Longmeadow Drive [also referred to as Randich Road], immediately east and west
of the public utility right-of-way [wa]s 66 feet.” Crest Hill argued that, by excluding
the pipeline as permitted during annexation and by combining the right-of-way and
1
In its brief, Crest Hill states that it did not annex this strip of property because Natural Gas
Pipeline did not consent to annexation and the conditions required for forcible annexation did not
exist.
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Randich Road border measurements, parcels A and B would touch by a length of
over 300 feet.
¶8 On December 21, 2018, Crest Hill and the School Board filed cross-motions for
summary judgment. In its motion and memorandum in support of its motion for
summary judgment, the School Board noted that the excluded area between parcels
A and B included privately owned, unincorporated property. The School Board
further noted that, to establish contiguity, Crest Hill sought to rely solely on a 234.9-
foot section of property to connect the 74-acre-plus parcel to the southeastern
portion of the Weber TIF District.
¶9 In response, Crest Hill acknowledged that the sole contiguity between parcels
A and B was established by excluding a public utility right-of-way. Crest Hill
argued that the annexation provisions of the Illinois Municipal Code expressly
permitted it to “jump” over the public utility right-of-way for purposes of the prior
annexation of parcel B. See 65 ILCS 5/7-1-1 (West 2018). Crest Hill argued that,
if contiguity existed for the purpose of annexation, it must also exist for the same
parcels in creating the Weber TIF District.
¶ 10 The School Board rejected Crest Hill’s contentions. The School Board
maintained that the area northwest of the excluded area (parcels B and C) was not
contiguous to the remainder of the redevelopment project area in the Weber TIF
District (parcel A). The School Board argued that the portion of the Municipal Code
governing TIF districts did not allow Crest Hill to “jump” the 234.9-foot portion of
the utility parcel to establish contiguity between parcels A and B. The School Board
pointed out that, because annexations and TIF districts are governed by independent
provisions of the Municipal Code, reliance on the express statutory exemption
contained in the annexation provisions of the Municipal Code, and not contained in
the TIF Act, was improper. The School Board further argued that section 11-74.4-
4 of the TIF Act (id. § 11-74.4-4), expressly allowing redevelopment project areas
separated by a public right-of-way to share revenues, supported the School Board’s
contention that contiguity of a single redevelopment project area cannot be
established by excluding a public right-of-way. The School Board argued that, if
the court accepted Crest Hill’s argument that the statutory exemptions from the
annexation statute could be used to establish contiguity for the Weber TIF district,
section 11-74.4-4 of the TIF Act would be rendered meaningless.
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¶ 11 In support of its argument, the School Board relied on the deposition testimony
of Jeanne Lindwall, principal consultant for Camiros, Ltd., who prepared the TIF
eligibility study and plan for Crest Hill. Lindwall agreed that the contiguity of the
northwestern portion of the Weber TIF District (parcels B and C) and the remainder
of the Weber TIF District (parcel A) was “solely based” on Crest Hill’s ability to
“jump” the 100.4-foot-wide by 234.9-foot-long portion of the utility parcel.
Lindwall agreed this was “the only way” to get contiguity to parcel B from parcel
A. Lindwall explained that 66 feet of Randich Road would also be included to
establish contiguity, but the “primary contiguity” originated from excluding the
public utility right-of-way. Lindwall admitted that she had relied upon legal
counsel’s explanations of contiguity under “the annexation statute” and that, if her
understanding of contiguity were incorrect, “there would be no contiguity” between
parcels A and B. Lindwall acknowledged that the utility parcel split the Weber TIF
District, had not been incorporated into city limits, and had not been included in the
Weber TIF District.
¶ 12 On February 15, 2019, the circuit court held a hearing on the parties’ motions
for summary judgment, before taking the matter under advisement. On March 28,
2019, the circuit court granted Crest Hill’s motion for summary judgment and
denied the School Board’s motion. With regard to contiguity, the circuit court found
that “over 400 feet of contiguity” connected parcels A and B so that contiguity
existed between the northwestern portion (parcels B and C) and the remainder
(parcel A) of the Weber TIF District. The circuit court determined that the existence
of the public utility right-of-way “easement” between parcels A and B was “of no
legal consequence.” The circuit court thus concluded that Crest Hill had satisfied
the contiguity requirement to establish the Weber TIF District. The School Board
timely appealed to the appellate court.
¶ 13 The appellate court addressed the legal question of whether the parcels
contained within the Weber TIF District were contiguous pursuant to the TIF Act
(see id. § 11-74.4-4(a)). 2020 IL App (3d) 190225, ¶ 30. The appellate court stated
that the appeal “boil[ed] down to one question—does the [TIF] Act allow [Crest
Hill] to ‘jump’ the 234.9[-]foot portion of the natural gas right-of-way, located in
the unincorporated ‘excluded area’ of the [Weber] TIF district, to establish
contiguity between parcels A and B?” Id. The appellate court answered this
question in the negative. Id.-6-
¶ 14 The appellate court found well-suited for TIF cases the common-law definition
of “contiguity” applicable in annexation cases. Id. ¶ 28. The appellate court noted,
however, that in annexation cases, section 7-1-1 of the annexation division of the
Municipal Code expressly expands contiguity to include territory separated from
the municipality by a public utility right-of-way (see 65 ILCS 5/7-1-1 (West 2018)).
2020 IL App (3d) 190225, ¶ 28. The appellate court held that, if the legislature had
intended to create a TIF district by considering real parcels contiguous even if
separated by a public utility right-of-way, it would have said so. Id. ¶ 33. The
appellate court held that because the legislature did not signal such an intention
Crest Hill was prohibited from “jump[ing]” the public utility gas right-of-way to
establish contiguity between parcels A and B. Id. ¶ 34. Because no other basis
supported a finding of contiguity between parcels A and B, the appellate court held
that the Weber TIF District lacked the contiguity required by section 11-74.4-4(a)
of the TIF Act (65 ILCS 5/11-74.4-4(a) (West 2018)). 2020 IL App (3d) 190225,
¶ 34. Thus, the appellate court reversed the circuit court’s order finding contiguity
and granting summary judgment in favor of Crest Hill. Id.¶ 15 Justice Holdridge specially concurred, noting that parcels A and B were
physically separated by the utility parcel of land that prevented contiguity. Id. ¶ 41
(Holdridge, J., specially concurring). Justice Holdridge asserted that the utility
parcel of land appeared to be owned in fee simple so that, even if Crest Hill could
“jump” the natural gas right-of-way that existed on the border of parcel A and the
utility parcel, Crest Hill could not establish contiguity with the remaining land
within the utility parcel that stretched beyond the gas right-of-way up to parcel B.
Id. ¶¶ 41-42.
¶ 16 On November 18, 2020, this court allowed Crest Hill’s petition for leave to
appeal (Ill. S. Ct. R. 315 (eff. Oct. 1, 2019)). This court also granted the Illinois
Municipal League leave to submit an amicus curiae brief in support of Crest Hill.
This court granted the Illinois Association of School Boards, the Illinois
Association of School Administrators, and the Illinois Association of School
Business Officials leave to submit an amicus curiae brief in support of the School
Board (Ill. S. Ct. R. 345 (eff. Sept. 20, 2010)).
¶ 17 II. ANALYSIS
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¶ 18 In this appeal, we must determine whether a statutory exception to the
contiguity requirement for annexation, found in the annexation division, division 1
of article 7 of the Municipal Code (65 ILCS 5/7-1-1 et seq. (West 2018)), applies
as an exception to the contiguity requirement of the TIF Act, found in division 74.4
of article 11 of the Municipal Code (id. § 11-74.4-1 et seq.). The parties in this case
agree that contiguity is established here only if the public-utility-right-of-way
exception to contiguity required for annexation also applies as an exception to
contiguity required by the TIF Act.
¶ 19 A. Standard of Review
¶ 20 “When parties file cross-motions for summary judgment, they agree that only a
question of law is involved and invite the court to decide the issues based on the
record.” Pielet v. Pielet, 2012 IL 112064, ¶ 28. Summary judgment motions are
governed by section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005
(West 2018)) and should be granted only where the pleadings, depositions,
admissions, and affidavits on file, when viewed in the light most favorable to the
nonmoving party, show that there is no genuine issue as to any material fact and
that the moving party is clearly entitled to judgment as a matter of law. Id. § 2-
1005(c). “Where a case is decided through summary judgment, our review is
de novo.” Pielet, 2012 IL 112064, ¶ 30. De novo review is also appropriate to the
extent that this case turns on the application of law to undisputed facts (General
Motors Corp. v. Pappas, 242 Ill. 2d 163, 172-73 (2011)) and the statutory
construction of the TIF Act’s provisions (Pielet, 2012 IL 112064, ¶ 30).
¶ 21 B. TIF Act and Contiguity
¶ 22 “Our primary goal when interpreting the language of a statute is to ascertain
and give effect to the intent of the legislature.” Maksym v. Board of Election
Commissioners, 242 Ill. 2d 303, 318 (2011). “The plain language of a statute is the
best indication of the legislature’s intent.” Id. “Where the statutory language is clear
and unambiguous, we will enforce it as written and will not read into it exceptions,
conditions, or limitations that the legislature did not express.” Id.-8-
¶ 23 Likewise, to ascertain the legislative intent underlying the TIF Act, we look
first to the statutory language, examining the language of the statute as a whole and
considering each part or section in connection with every other part or section. See
generally In re Petition to Annex Certain Territory to Village of North Barrington,
144 Ill. 2d 353, 362 (1991). The legislature alone authorized the creation of TIF
districts, and thus, the court’s function is to determine whether Crest Hill has
complied with the statutory requirements set forth by the legislature. Id.¶ 24 Pursuant to the TIF Act, the legislature determined that many municipalities
within this State encompass blighted areas and that, to promote and protect the
health, safety, morals, and welfare of the public, the blighted conditions found in
these areas need to be eradicated and conservation measures instituted. 65 ILCS
5/11-74.4-2 (West 2018). A “ ‘blighted area’ means any improved or vacant area
within the boundaries of a redevelopment project area located within the territorial
limits of the municipality where” certain factors are present. See id. § 11-74.4-3(a).
¶ 25 Section 11-74.4-4(a) of the TIF Act states that a redevelopment project area
“shall include only those contiguous parcels of real property and improvements
thereon substantially benefited by the proposed redevelopment project
improvements.” Id. § 11-74.4-4(a). Although the TIF Act requires contiguity of
parcels within the redevelopment project area, contiguity is not defined by the TIF
Act. Nevertheless, this court has held that, to reach statutory contiguity in the
context of village incorporation, “the tracts of land in the territory must touch or
adjoin one another in a reasonably substantial physical sense.” Western National
Bank of Cicero v. Village of Kildeer, 19 Ill. 2d 342, 352 (1960) abrogated on other
grounds by People ex rel. County of Du Page v. Lowe, 36 Ill. 2d 372, 379-80
(1967). Likewise, this court has applied this definition in the context of statutory
annexation by a municipality. See In re Petition to Annex Certain Territory to
Village of North Barrington, 144 Ill. 2d at 365 (“purpose of the contiguity
requirement in the annexation statute is to permit the natural and gradual extension
of municipal boundaries to areas which adjoin one another in a reasonably
substantial physical sense” (internal quotation marks omitted)).
¶ 26 Noting that “[c]ontiguity has long been defined in annexation cases as tracts of
land which touch or adjoin one another in a reasonably substantial physical sense,”
the appellate court has determined that this definition of contiguity is also well
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suited to determine questions arising under the TIF Act. Henry County Board v.
Village of Orion, 278 Ill. App. 3d 1058, 1067 (1996); accord Geisler v. City of
Wood River, 383 Ill. App. 3d 828 (2008). We agree that this definition of contiguity
is well suited to determine questions arising under the TIF Act, in order to create
redevelopment project areas with physical eligibility that are legitimately reaping
tax increment financing benefits under the TIF Act. Henry County Board, 278 Ill.
App. 3d at 1067. Applying this definition to the case sub judice, we find that parcel
A does not touch or adjoin the remaining parcels in the Weber TIF District in a
reasonably substantial physical sense and, therefore, parcel A and the remaining
parcels (parcels B and C) in the Weber TIF District are not contiguous.
¶ 27 To circumvent the lack of contiguity, Crest Hill argues that the parcels are
separated by a public utility right-of-way, running parallel and adjacent to both
properties for a length of 234.9 feet, and that contiguity may therefore be
established pursuant to the annexation provisions of the Municipal Code (65 ILCS
5/7-1-1 (West 2018)), which allow territory to be considered contiguous and
annexed to a municipality notwithstanding that the territory is separated by a public
utility right-of-way. Crest Hill argues that, because the TIF Act found in article 11
and the annexation division found in article 7 are both codified within the Municipal
Code and reference “contiguous” in the same context, i.e., to determine whether
parcels of real property adequately touch, the uses of the term “contiguous” should
be construed in harmony with one another if reasonably possible.
¶ 28 The School Board counters that, while contiguity for purposes of the TIF Act
looks to the common-law definition of contiguity commonly applied in annexation
cases, Crest Hill cannot rely on a statutory exception found only within the
annexation division of the Municipal Code. The School Board argues that Crest
Hill’s reliance on a statutory exception found in the annexation division is
particularly improper considering that the public utility right-of-way here is not
included within the redevelopment project area of the Weber TIF District or within
the incorporated boundaries of Crest Hill.
¶ 29 Pursuant to the statutory provisions for annexation, territory located outside the
corporate limits of a municipality may be annexed to the municipality, if contiguous
to the municipality. Id. Nevertheless, section 7-1-1 of the annexation division of
article 7 of the Municipal Code provides exceptions to contiguity, stating:
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“For the purposes of this Article any territory to be annexed to a municipality
shall be considered to be contiguous to the municipality notwithstanding that
the territory is separated from the municipality by a *** public utility right-of-
way *** but upon annexation the area included within that *** right-of-way[ ]
or former right-of-way shall not be considered to be annexed to the
municipality.” Id.
¶ 30 Notably, this case does not involve contiguous properties running parallel and
adjacent to each other in a reasonably substantial physical sense, wherein a public
utility owns a right-of-way, or easement, to pass through one or both of the
physically adjacent properties. See Black’s Law Dictionary 1440 (9th ed. 2009)
(describing a right-of-way as a “strip of land subject to a nonowner’s right to pass
through”); see also Kurz v. Blume, 407 Ill. 383, 385 (1950) (“[i]t is settled that a
right[-]of[-]way is an easement”); Fallon v. Illinois Commerce Comm’n, 402 Ill.
516, 523 (1948) (“right[-]of[-]way is one kind of an easement”); Tallman v. Eastern
Illinois & Peoria R.R. Co., 379 Ill. 441, 445 (1942) (deed granting “right of way”
conveyed easement only, rather than a fee). Instead, the record reveals that the
parcel of land located between parcels A and B is owned by Natural Gas Pipeline,
is excluded from the redevelopment project area of the Weber TIF District and the
territorial limits of Crest Hill, and physically separates parcels A and B. Crest Hill
did not annex this excluded property and therefore could not include it in the Weber
TIF District because it was not within the “territorial limits” of Crest Hill, as
required by the TIF Act. See 65 ILCS 5/11-74.4-3(a) (West 2018) (“ ‘blighted area’
means any improved or vacant area within the boundaries of a redevelopment
project area located within the territorial limits of the municipality”). Indeed, the
School Board argues that, in forming a TIF district, a municipality may not exclude
utility-owned property that physically separates parcels in the redevelopment
project area, then rely on a statutory annexation exception to jump that property
and assert contiguity under the TIF Act. We agree.
¶ 31 Further, the plain language of section 7-1-1 of the annexation division, i.e.,
“[f]or the purposes of this [a]rticle,” clearly provides that the public-utility-right-
of-way exception to the contiguity requirement for annexation is limited to article
7 of the Municipal Code. The TIF Act is found in article 11 of the Municipal Code,
and thus, the plain language of the statute provides that this exception to contiguity
for purposes of article 7 does not apply here.
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¶ 32 Additional statutory language found in section 7-1-1 of the annexation division
of the Municipal Code supports this conclusion. In addition to setting forth a public-
utility-right-of-way exception to the contiguity requirement for annexation, section
7-1-1 also sets forth a strip-parcel exception, which thereby excludes a strip parcel
that prevents contiguity for purposes of annexation. Id. § 7-1-1 (to be annexed to
municipality, territory shall be considered contiguous notwithstanding that territory
is separated from municipality by a strip parcel). However, section 7-1-1’s
exception limits the measurement of the excepted strip parcel to “no wider than 30
feet between the territory to be annexed and the municipal boundary.” Id. Here,
however, Crest Hill seeks to apply the public-utility annexation provision to
exclude a parcel measuring 100.4 feet by 234.9 feet between the territories to be
included in the redevelopment project area of the Weber TIF District. As noted by
the School Board, the dimensional restriction reflected in the annexation provisions
of the Municipal Code, which Crest Hill seeks to apply here, buttresses the decision
to reject the significant leap requested by Crest Hill.
¶ 33 Moreover, the TIF Act itself reinforces our conclusion. Section 11-74.4-4(q) of
the TIF Act reveals that the legislature contemplated that distinct but contiguous
redevelopment project areas separated only by a public right-of-way may share
revenues received. See id. § 11-74.4-4(q) (municipality may utilize revenues
received under the TIF Act from one redevelopment project area for eligible costs
in another redevelopment project area that is contiguous to the redevelopment
project area from which the revenues are received and separated only by a public
right-of-way from the redevelopment project area from which the revenues are
received). We thus agree with the School Board that the plain language found in
the annexation division of article 7 of the Municipal Code and in the TIF Act reveals
the legislature’s expressed intent that the statutory public-utility-right-of-way
exception to contiguity for purposes of annexation was not contemplated for
purposes of establishing contiguity for a single redevelopment project area pursuant
to the TIF Act.
¶ 34 In sum, we recognize that the definition of contiguity, i.e., touching or adjoining
in a reasonably substantial physical sense, for purposes of designating a
redevelopment project area pursuant to the TIF Act, is consistent with the common-
law definition applicable in cases involving municipal annexation. However, this
definition does not incorporate the statutory public-utility-right-of-way exception
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for contiguity contained in the annexation division of the Municipal Code (id. § 7-
1-1), particularly, as in this case, when the parcel of property to be excluded is
owned by the utility company, is located outside the incorporated boundaries of the
municipality and the boundaries of the redevelopment project area, and physically
separates the parcels the municipality found to be contiguous for purposes of
including them in the redevelopment project area pursuant to the TIF Act.
¶ 35 III. CONCLUSION
¶ 36 For the foregoing reasons, the judgment of the appellate court is affirmed, and
the judgment of the circuit court is reversed.
¶ 37 Appellate court judgment affirmed.
¶ 38 Circuit court judgment reversed.
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