Northern Illinois Home Builders Ass'n, Inc. v. County of Du Page

• Decision Date: 06 October 1993
• Docket Number: No. 2-92-0963,2-92-0963
• Citation: 190 Ill.Dec. 559,251 Ill.App.3d 494,621 N.E.2d 1012
• Parties: , 190 Ill.Dec. 559 NORTHERN ILLINOIS HOME BUILDERS ASSOCIATION, INC. et al., Plaintiffs-Appellants, v. The COUNTY OF DU PAGE et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1012

621 N.E.2d 1012

251 Ill.App.3d 494, 190 Ill.Dec. 559

NORTHERN ILLINOIS HOME BUILDERS ASSOCIATION, INC. et al., Plaintiffs-Appellants, v. The COUNTY OF DU PAGE et al., Defendants-Appellees.

No. 2-92-0963.

Appellate Court of Illinois,

Second District.

Oct. 6, 1993.

John C. Bartler (argued), McKenna, Storer, Rowe, White & Farrug, Wheaton, for N. Ill. Home Builders Assoc., Inc., R.A. Faganel, Builders, Inc., Joe Keim Builders, Inc., Springwood Builders, Inc., The Krughoff Com., DePaulo Builders, Inc., Dennis Rogers Builders, Inc., Primus Corp., IVCO, Inc. and Alec Gizzi.

James E. Ryan, Du Page County State's Atty., Barbara A. Preiner, Supervisor of Appeals, Du Page Co. State's Atty's. Office, Anna B. Harkins (argued), Asst. State's Atty., Siemon, Larsen & Marsh, Attys. at Law, Gerald P. Callahan, Siemon, Larsen & Marsh, Chicago, for County of Du Page and George Kouba.

Justice QUETSCH delivered the opinion of the court:

This case of first impression in Illinois involves a constitutional challenge to impact fees imposed on new development in Du Page County for the purpose of collecting a proportionate share of the road improvement costs made necessary by the additional traffic generated by the new development.

The plaintiffs, Northern Illinois Home Builders Association, Inc., et al., filed a complaint for mandamus, which in effect prayed for a declaratory judgment that the legislation enabling Du Page County to establish impact fees, and the ordinances passed pursuant thereto, be declared unconstitutional. Following a bench trial, the trial court denied the plaintiffs' complaint. The plaintiffs appeal, contending that the enabling legislation and ordinances are unconstitutional because they: (1) violate the takings clause of the fifth amendment; (2) impose taxes on real property in violation of section 4 of article IX of the Illinois Constitution of 1970 (Ill. Const.1970, art. IX, § 4); and (3) violate the right to travel, equal protection, and due process. The plaintiffs also argue that the enabling acts constitute special legislation.

The first act enabling Du Page County to establish an impact fee was former section 5-608(a) of the Illinois Highway Code. That act stated:

"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.

Du Page County passed ordinance DT0-016-88 on or about November 22, 1988. That ordinance divided the county into 11 districts and used a standard fee formula which took into consideration the cost of road construction and the number of motor vehicle trips generated by different types of land use. The formula also provided credits for taxes and developer-financed improvement. The ordinance provided fee tables for residential, commercial and other types of developments, subject to annual review. The fees varied between districts, and the funds collected from new development could only be spent in that district or in areas immediately adjacent to that district.

After DTO-016-88 was passed, an error was discovered in the fee calculations. On June 27, 1989, Du Page County passed its second impact fee ordinance, ODT-021-89. That ordinance again divided the county into 11 districts and used the standard fee formula. It corrected the computational errors made in the first ordinance and provided a new set of impact fee tables. On July 25, 1989, Du Page County passed ODT-021A-89, which 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).) This second enabling act authorized counties with a population of over 400,000 and all home rule municipalities to impose impact fees.

Du Page County subsequently passed ODT-021B-89, effective January 1, 1990, which amended the fee tables to reflect changes in the motor fuel and property tax credits. On May 22, 1990, the county passed its current impact fee ordinance, ODT-021C-89, effective July 25, 1990. The same formula was used to compute the impact fees for each of the 11 districts as was used to calculate the fees in the prior ordinances. It also provided that the funds collected from new development in a particular district could only be spent in that district. However, the county decided to no longer charge developers for their impact on State roads. Accordingly, the fee tables were recomputed. There are now three districts where no impact fees are due because there are fewer miles of county roads in those districts and the credits exceed the fees that would be owed.

The plaintiffs brought a complaint for "mandamus," praying that the enabling statutes and ordinances be declared unconstitutional and that the impact fees previously paid be refunded. The trial court denied their complaint, and the plaintiffs appeal. Since the material facts pertinent to the constitutional issues are not disputed in this case, we may determine the correctness of the ruling on the question of law independently of the trial court's judgment. Midland Management Co. v. Helgason (1993), 241 Ill.App.3d 899, 903-04, 181 Ill.Dec. 570, 608 N.E.2d 643.

We first address the argument of plaintiff Joe Keim Builders, Inc. (Keim), that section 5-918 of the second enabling act requires Du Page County to refund $12,987 in impact fees which Keim paid from September 5, 1989, to March 10, 1990. Section 5-918 provides in relevant part:

"(a) Conformance of Existing Ordinances. A unit of local government which currently has in effect an impact fee ordinance or resolution shall have not more than 12 months from July 26, 1989 to bring its ordinance or resolution into conformance with the requirements imposed by this Act * * *.

(b) Exemption of Developments Receiving Site Specific Development Approval. No development which has received site specific development approval from a unit of local government within 18 months before the first date of publication by the unit of local government of a notice of public hearing to consider land use assumptions relating to the development of a comprehensive road improvement plan and imposition of impact fees and which has filed for building permits or certificates of occupancy within 18 months of the date of approval of the site specific development plan shall be required to pay impact fees for permits or certificates of occupancy issued within that 18 month period.

* * * * * *

(c) Exception to the Exemption of Developments Receiving Site Specific Development Approval. Nothing in this Section shall require the refund of impact fees previously collected by units of local government in accordance with their ordinances or resolutions, if such ordinances or resolutions were adopted prior to the effective date of this Act and provided that such impact fees are encumbered as provided in Section 5-916." 605 ILCS 5/5-918(a), (b), (c) (West 1992).

The parties agree that Keim received site-specific development approval for Wheaton Park Manor on April 17, 1989, which was within 18 months before the first date of publication by Du Page County of the notice of public hearing held to consider land-use assumptions relating to the development of a comprehensive road improvement plan and imposition of impact fees. Keim also filed for building permits within 18 months of the date of approval of the site-specific development plan. Therefore, Keim argues that pursuant to section 5-918(b) it is entitled to a refund of the impact fees it paid for the development of Wheaton Park Manor. However, Du Page County argues that the exception to the exemption is applicable and that Keim is not entitled to a refund.

The fundamental principle of statutory construction is to ascertain and give effect to the intention of the legislature. (Thomas v. Greer (1991), 143 Ill.2d 271, 278, 158 Ill.Dec. 1, 573 N.E.2d 814.) This intent is best determined by initially considering the language of the statute itself and giving the language its plain and ordinary meaning. DeClerck v. Simpson (1991), 143 Ill.2d 489, 492, 160 Ill.Dec. 442, 577 N.E.2d 767.

A plain reading of section 5-918 indicates that the legislature intended that counties which did not have impact fee ordinances prior to the effective date of the second enabling statute should not thereafter collect impact fees from developments which meet the criteria of section 5-918(b). However, subject to an exception set forth in section 5-916 which is not applicable here, counties with impact fee ordinances existing prior to the time the second enabling statute became effective are not required to refund any impact fees previously collected pursuant to those ordinances.

In this case, Du Page County had enacted impact fee ordinances prior to the time the second enabling act became effective. However, Keim paid $12,987 in fees from September 5, 1989, to March 10, 1990. Keim argues that it is entitled to a refund of those monies since it paid them after the July 26, 1989, effective date of the second enabling act.

However, section 5-918(a) of the...