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Thompson v. Village of Newark

May 03, 2002

DAVID E. THOMPSON AND MARCITA A. THOMPSON, PLAINTIFFS-APPELLANTS,
v.
THE VILLAGE OF NEWARK, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kendall County. No. 00-MR-12 Honorable James R. Edwards, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

Released for publication May 7, 2002.

DAVID E. THOMPSON AND MARCITA A. THOMPSON, PLAINTIFFS-APPELLANTS,
v.
THE VILLAGE OF NEWARK, DEFENDANT-APPELLEE.

Appeal from the Circuit Court of Kendall County. No. 00-MR-12 Honorable James R. Edwards, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

PUBLISHED

 Plaintiffs, David and Marcita Thompson, appeal the circuit court's order granting summary judgment for defendant, the Village of Newark, in their suit for declaratory relief. Plaintiffs had sought a ruling that defendant's ordinance assessing developmental impact fees for school construction was not authorized by statute and was unconstitutional. On appeal, plaintiffs contend that the court erred in holding that the village's ordinance is valid. They contend that the ordinance is not authorized by a section of the Illinois Municipal Code authorizing the village plan commission to provide for "school grounds" (65 ILCS 5/11--12--5 (West 2000)) or any other provision. They also contend that the ordinance is not supported by a specific grant of authority in the Illinois Constitution and also violates the equal protection clauses of the state and federal constitutions.

The facts are simple and not disputed. The Village of Newark is a small, non-home-rule municipality in a rapidly developing area of Kendall County. In 1995, the village passed Ordinance No. 1995--12--1, authorizing the village to impose school impact fees on new development within the village. Newark Ordinance No. 1995--R--1 (1995). The ordinance imposes both a land acquisition fee and a school district capital improvement development impact fee and includes formulae for calculating each fee for each new development. Newark Ordinance No. 1995--12--1, §§00.04.010, 00.04.020 (1995).

Plaintiffs own a lot in the village. In 1988 they attempted to obtain a permit to build a single-family home on their property but were told that they could not receive a permit until they paid the impact fees required by the ordinance. In order to proceed with the construction, plaintiffs paid the fees under protest and wrote the village two checks totaling $3,924.54.

When the village refused plaintiffs' demand to return the money, they instituted this action. Their five-count, first amended complaint alleges that the impact fee ordinance is authorized by neither the Illinois Constitution nor a state statute (count I), that it violates the equal protection clauses of the federal and state constitutions (counts II and III), and that it results in an uncompensated taking of property in violation of the federal and state constitutions (counts IV and V).

Both parties moved for summary judgment. After considering the parties' stipulation of facts and some additional materials, the court granted the village's motion and denied plaintiffs' motion. Plaintiffs timely appeal.

Plaintiffs first contend that the court erred in holding that the village's ordinance is statutorily authorized. They maintain that, as a non-home-rule municipality the village can exercise only the powers the constitution or an enabling statute specifically grants it and that no such provision allows the village to impose impact fees for the construction of new schools. Plaintiffs do not now contest the village's authority to impose fees to purchase land for school sites.

Plaintiffs appeal from an order entering summary judgment. Summary judgment is appropriate when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2--1005(c) (West 1998). The parties agree that there were no contested issues of material fact to be resolved. Therefore, summary judgment was unquestionably appropriate. Plaintiffs' first issue is one of statutory construction, a question of law. In re Estate of Andernovics, 197 Ill. 2d 500, 507 (2001). Our review is thus de novo. Primeco Personal Communications, L.P. v. Illinois Commerce Comm'n, 196 Ill. 2d 70, 83 (2001).

Development exactions, or impact fees, are one of the most innovative and potentially burdensome mechanisms for funding public facilities made necessary by increased local growth. 3 C. Sands, M. Libonati & J. Martinez, Local Government Law §16.23.50 (2001); 8 McQuillin on Municipal Corporations §25.118.50, at 381 (hereinafter McQuillen) (3d rev. ed. 2000). Rapidly growing municipalities have increasingly turned to impact fees in an attempt to bridge the gap between the increased demand for services brought on by rapid growth and the stagnant or shrinking amount of revenue available from traditional sources. See A. Nelson, Development Impact Fees: The Next Generation, 26 Urb. Law. 541, 542 (1994); Comment, School Impact Fees in Colorado: Gone, but Hopefully Not Forgotten, 70 U. Colo. L. Rev. 257, 288-89 (1999). The fees are intended to finance local improvements necessitated, at least in part, by the development. McQuillin, §25.118.50, at 381. However, the use of such funding devices remains quite controversial. Impact fees are subject to criticisms that, among other ...


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