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03/23/95 NORTHERN ILLINOIS HOME BUILDERS

March 23, 1995

NORTHERN ILLINOIS HOME BUILDERS ASSOCIATION, INC., ET AL., APPELLANTS,
v.
THE COUNTY OF DU PAGE, ET AL., APPELLEES.



The Honorable Justice Harrison delivered the opinion of the court:

The opinion of the court was delivered by: Harrison

JUSTICE HARRISON delivered the opinion of the court:

In this case of first impression in Illinois, plaintiffs, Northern Illinois Home Builders Association, Inc., et al., challenge the constitutionality of two State enabling statutes and three Du Page County ordinances adopted pursuant thereto which impose transportation impact fees on new development. Plaintiffs filed a complaint for mandamus in the circuit court of Du Page County which in effect sought a declaratory judgment that the legislation and ordinances are unconstitutional. Following a bench trial, the circuit court denied plaintiffs' complaint and they appealed. The appellate court, while holding that both enabling acts are constitutional, found a provision of one ordinance to be violative of due process but severable from the remainder of the ordinance (251 Ill. App. 3d 494). We granted plaintiffs' petition for leave to appeal (145 Ill. 2d R. 315).

In this court, plaintiffs contend that the enabling legislation and/or Du Page County ordinances are unconstitutional because they: (1) violate the takings clauses of the United States and Illinois Constitutions; (2) constitute special legislation; (3) impose taxes on real property in violation of the Illinois Constitution; (4) violate the uniformity clause of the Illinois Constitution; and (5) violate the right to travel. Plaintiffs also argue that the appellate court erred in holding that the Du Page County ordinances comply with the requirements of the second enabling act, that the unconstitutional forfeiture provision of the current ordinance is severable from the rest of the ordinance and that the appeals provisions do not violate procedural due process. Finally, plaintiff Joe Keim Builders, Inc., contends it is entitled to a refund for certain impact fees previously paid.

The first transportation impact fee enabling statute passed by the Illinois legislature was former section 5-608(a) of the Illinois Highway Code, which became effective January 1, 1988. That act provided:

"The county board of any county of over 400,000 population but less than 1,000,000 population may establish transportation impact districts and may collect transportation impact fees from persons constructing new developments in those districts, if such developments require direct or indirect access to the county highway system or State highway system. The fees shall be in addition to any amounts otherwise required to be paid by the developer and shall be collected at the time a building permit is issued or at such other time that the county board directs. The county board shall establish by ordinance or rule the amount of such fees, which shall be based on the amount of estimated traffic generated by various land uses and the amount of improvements needed to maintain a reasonable level of service on the existing and proposed highway systems in light of expected traffic growth." (Ill. Rev. Stat. 1987, ch. 121, par. 5-608(a), repealed by Pub. Act 86-97, § 2, eff. July 26, 1989.)

Under the first enabling act, all fees collected were to be retained in a special fund established for each district and used in the same manner as motor fuel tax monies, except that all expenditures were to be made for improvements within or immediately adjacent to the district from which the monies were collected. Ill. Rev. Stat. 1987, ch. 121, par. 5-608(b), repealed by Pub. Act 86-97, § 2, eff. July 26, 1989.

Pursuant to the first enabling act, Du Page County passed ordinance ODT-016-88 on or about November 22, 1988. The stated purpose of this ordinance was "to ensure that new development * * * pays a fair share of the costs of transportation improvements needed to serve new development." (Du Page County Ordinance ODT-016-88, § 2(3).) The ordinance divided the county into 11 districts, and set forth a formula for the calculation of fees to be paid, taking into consideration the cost of road construction and providing credits for taxes and developer-financed improvements. The ordinance contained fee tables for residential, commercial and other types of land use in each district. On June 27, 1989, Du Page County passed an amended ordinance, ODT-021-89, which made certain textual changes and corrected computational errors made in the first ordinance, providing a new set of impact fee tables. The third Du Page County ordinance, ODT-021A-89, passed on July 25, 1989, changed the fee tables to reflect increases in the gas tax.

On July 26, 1989, the legislature repealed the first enabling act and passed the Road Improvement Impact Fee Law (605 ILCS 5/5-901 et seq. (West 1992)), which provided a comprehensive scheme for the enactment of impact fee ordinances in counties with a population of over 400,000 and all home rule municipalities. This second enabling act included the requirement that "an impact fee payable by a developer shall not exceed a proportionate share of costs incurred by a unit of local government which are specifically and uniquely attributable to the new development paying the fee * * *." (605 ILCS 5/5-904 (West 1992).) Du Page County subsequently passed ODT-021B-89, effective January 1, 1990, which amended the fee schedules to reflect changes in the motor fuel and property tax credits. The county's current impact fee ordinance, ODT-021C-89, became effective July 25, 1990. This ordinance provided new fee tables which reflected the elimination of charges to developers for their impact on State roads. This change resulted in three "zero impact fee districts" where no impact fees are due because there are fewer miles of county road in those districts and the credits exceed the fees that would be owed.

We first examine plaintiffs' claim that the enabling acts and ordinances violate the takings clauses of the fifth amendment of the United States Constitution and section 2 of article I of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 2). "One of the principal purposes of the Takings Clause is 'to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'" (Dolan v. City of Tigard (1994), 512 U.S. , , 129 L. Ed. 2d 304, 315-16, 114 S. Ct. 2309, 2316, quoting Armstrong v. United States (1960), 364 U.S. 40, 49, 4 L. Ed. 2d 1554, 1561, 80 S. Ct. 1563, 1569.) However, a land use regulation does not effect a taking if it substantially advances legitimate State interests and does not deny an owner economically viable use of his land. (Dolan, 512 U.S. at , 129 L. Ed. 2d at 316, 114 S. Ct. at 2316; Agins v. Tiburon (1980), 447 U.S. 255, 260, 65 L. Ed. 2d 106, 112, 100 S. Ct. 2138, 2141.) In Nollan v. California Coastal Comm'n (1987), 483 U.S. 825, 97 L. Ed. 2d 677, 107 S. Ct. 3141, and recently in Dolan, the United States Supreme Court discussed the standards for determining what constitutes a "legitimate state interest" and the type of connection which would satisfy the requirement that the regulation "substantially advance" the State interest.

"In evaluating petitioner's [taking] claim we must first determine whether the 'essential nexus' exists between the 'legitimate state interest' and the permit condition exacted by the city. Nollan, 483 U.S., at 837. If we find that a nexus exists, we must then decide the required degree of connection between the exactions and the projected impact of the proposed development." Dolan, 512 U.S. at , 129 L. Ed. 2d at 317, 114 S. Ct. at 2317.

In the instant case, it is clear that the need to minimize or reduce traffic congestion is a legitimate State interest (Dolan, 512 U.S. at , 129 L. Ed. 2d at 318, 114 S. Ct. at 2317-18; see also Devon Bank v. Department of Transportation (1981), 95 Ill. App. 3d 690, 697, 51 Ill. Dec. 191, 420 N.E.2d 605 (State has interest in promoting safety and efficient road use)), and it is equally clear that a nexus exists between preventing further traffic congestion and providing for road improvements to ease that congestion. However, the second part of the analysis, whether the degree of the exactions demanded bears the required relationship to the projected impact of the new development, is not as easily determined. As the Supreme Court noted in Dolan:

"In some States, very generalized statements as to the necessary connection between the required dedication and the proposed development seem to suffice. See, e.g., Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 394 P.2d 182 (1964); Jenad, Inc. v. Scarsdale, 18 N.Y.2d 78, 218 N.E.2d 673, 271 N.Y.S.2d 955 (1966). * * *

Other state courts require a very exacting correspondence, described as the 'specific and uniquely attributable' test. The Supreme Court of Illinois first developed this test in Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill. 2d 375, 380, 176 N.E.2d 799, 802 (1961). Under this standard, if the local government cannot demonstrate that its exaction is directly proportional to the specifically created need, the exaction becomes 'a veiled exercise of the power of eminent domain and a confiscation of private property behind the defense of police regulations.' Id., at 381, 176 N.E.2d, at 802." Dolan, 512 U.S. at , 129 L. Ed. 2d at 319, 114 S. Ct. at 2318-19.

The appellate court correctly found, and the parties agree, that Pioneer Trust sets forth the standard applicable in this case. Thus, "in order for the impact fees to pass constitutional muster the need for road improvement impact fees must be 'specifically and uniquely attributable' to the new development paying the fee." (251 Ill. App. 3d at 501, quoting Pioneer Trust & Savings Bank v. Village of Mount Prospect (1961), 22 Ill. 2d 375, 380, 176 N.E.2d 799.) However, our examination reveals that only the second of the two enabling acts complies with the stringent requirements of Illinois' Pioneer Trust test. As previously noted, the second enabling act mandates that the road improvements for which impact fees are imposed must be "specifically and uniquely ...


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