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11/21/94 COUNTY DU PAGE v. RWS DEVELOPMENT

November 21, 1994

THE COUNTY OF DU PAGE, PLAINTIFF-APPELLEE,
v.
RWS DEVELOPMENT, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. Nos. 92-AR-3451, 92-AR-3452. Honorable Ann B. Jorgensen, Judge, Presiding.

Released for Publication December 29, 1994.

Inglis, McLAREN, Colwell

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

In this appeal of two cases consolidated by the trial court, defendant, RWS Development, Inc., appeals the order of the circuit court of Du Page County entering judgment in favor of plaintiff, the County of Du Page, in the amounts of $12,336.91 and $9,051 for unpaid transportation impact fees. The issue on appeal is whether plaintiff may assess and collect impact fees after the issuance of a building permit. We reverse.

Defendant obtained building permits and then built and sold 50 single-family residences in the City of Aurora. Sometime after the City of Aurora issued the building permits, plaintiff learned that the building permits had been issued without the payment of the transportation impact fees required by the Du Page County Fair Share Transportation Impact Fee Ordinance, No. ODT-021-89 (the ordinance).

Plaintiff brought an action against defendant to collect impact fees pursuant to the ordinance. The ordinance provides in relevant part:

"Section Six. Timing of Payment of Fee.

1. Except as may be provided in subsection three hereof, fair share transportation impact fees for residential development imposed pursuant to this Ordinance shall be assessed and collected in full prior to the issuance of a building permit by either a municipality or the county.

Section Twenty. Penalties.

1. The Superintendent of Highways may initiate, through the State's Attorney, judicial proceedings to remedy or correct any violation of this Ordinance, including the issuance of a mandatory or prohibitory injunction or order of abatement, and any other appropriate action, proceeding, or remedy to prevent unlawful development without payment of the fee required by this Ordinance. Each day that a violation continues shall be deemed a separate offense."

Larry H. Bolman testified that he is the manager of Transportation Financial Services of the finance department of the Du Page County department of transportation and that one of his duties is to monitor the payment of county impact fees by builders in Du Page County. As part of these duties, he receives information from the highway department with respect to the issuance of building permits to make sure that they match up with the payment of impact fees.

Bolman was not able to find a match with respect to the properties at issue in the present case. He sent a letter to defendant at the address contained on the building permit. The address was one of the houses defendant built, but it was not defendant's office or place of business.

On cross-examination, Bolman testified that he had no knowledge when the building permits were issued by the City of Aurora. He also testified that plaintiff did not collect or attempt to collect the fees prior to the issuance of the building permits because plaintiff had no knowledge that the building permits had been issued until after the fact. He further ...


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