Supreme Court of Illinois.
NORTHERN ILLINOIS HOME BUILDERS ASSOCIATION, INC., et al.,
Appellants,
v.
The COUNTY OF DU PAGE et al., Appellees.
No. 76503.
649 N.E.2d 384
March 23, 1995.
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., *29
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, 190 Ill.Dec. 559, 621 N.E.2d
1012). 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 **388 ***332 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 *30
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-*31 021-89, 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 "[a]n 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.
[1][2][3] 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 *32 which, in all fairness and
justice, should be borne by the public as a whole.' " (Dolan
v. City of Tigard
(1994), 512 U.S. 374, ----, 114 S.Ct. 2309, 2316, 129 L.Ed.2d 304, 315-16, quoting **389***333Armstrong
v. United States
(1960), 364 U.S. 40, 49, 80 S.Ct. 1563,
1569, 4 L.Ed.2d 1554, 1561.) 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 ----, 114 S.Ct. at 2316, 129 L.Ed.2d at 316; Agins
v. Tiburon
(1980), 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106, 112.) In Nollan
v. California Coastal Comm'n
(1987), 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677, 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, 107 S.Ct., at 3148-49. 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 ----, 114 S.Ct. at 2317, 129 L.Ed.2d at 317.
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 ----, 114 S.Ct. at 2317-18, 129 L.Ed.2d at 318; 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 *33 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, 271 N.Y.S.2d 955, 218 N.E.2d 673 (1966). * * *
Other state courts require a very exacting correspondence,
described as the 'specifi[c] 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 ----, 114 S.Ct. at 2318-19, 129 L.Ed.2d at 319.
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, 190 Ill.Dec. 559, 621 N.E.2d 1012, 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 attributable to the traffic demands generated
by the new development paying the fee."
(605
ILCS 5/5-906(a)(1) (West 1992).) The second enabling act further provides, in
its definitional section:
*34
" 'Specifically and uniquely attributable' means that a new development
creates the need, or an identifiable portion of the need, for additional
capacity to be provided by a road improvement.
Each new development paying impact fees used to fund a road improvement
must receive a direct **390 ***334 and material benefit from the
road improvement constructed with the impact fees paid. The need for road improvements funded by
impact fees shall be based upon generally accepted traffic engineering
practices as assignable to the new development paying the fees." (605
ILCS 5/5-903 (West 1992).)
We believe that this language comports with
the dictates of Pioneer Trust, wherein this court indicated that an
exaction which required a developer to provide for improvements " 'which
are required by [his] activity,' " would be permissible, but one which
required him to provide for improvements made necessary by " 'the total
activity of the community,' " would be forbidden. Pioneer
Trust,
22 Ill.2d at 380, 176 N.E.2d 799, quoting Rosen
v. Village of Downers Grove
(1960), 19 Ill.2d 448, 453, 167 N.E.2d 230.
On the other hand, it appears clear that the
first enabling act was not written with the specifically and uniquely
attributable test in mind, where no such language is contained anywhere in its
three-paragraph text. Indeed, the first
act directs that the fees paid by new developments be used to fund all
road improvements "needed to maintain a reasonable level of service,"
with the single proviso that "all expenditures must be made for
improvements within, or in areas immediately adjacent to, the transportation impact
district from which the expended monies were collected." (Ill.Rev.Stat.1987,
ch. 121, pars. 5- 608(a), (b).) We agree with the appellate court that, in
order for Du Page County to comply with the "specifically and uniquely
attributable" test, "it can only impose impact fees for the road
improvements made necessary by the additional traffic generated by new
development * * * [and] the new development paying the impact fee must receive
a direct *35 and material benefit from the improvement
financed by the impact fee."
(Emphasis in original.) (251
Ill.App.3d at 502, 190 Ill.Dec. 559, 621 N.E.2d 1012.) However, it is only Du Page
County's current impact fee scheme, developed in accordance with the second
enabling act, which complies with both of these requirements.
[4] There is nothing in the first enabling act, or the
ordinances based upon it, which restricts the expenditure of funds collected
thereunder to deficiencies created by the
new development providing those funds. Additionally, the fact that funds could
be used for areas outside the transportation impact district prevents the new
development from receiving the direct and material benefit of the road
improvements financed by its fees. Although we agree with the appellate court
that there is no requirement that the improvements financed by impact fees must
be used exclusively or overwhelmingly by the development paying the fee (251
Ill.App.3d at 503, 190 Ill.Dec. 559, 621 N.E.2d 1012), the funds collected from new development in a particular
district must be used to finance improvements in that same district. [FN1] We are satisfied that a carefully drawn
district system, such as that adopted by Du Page County, can successfully limit
a geographic area so that fee payers receive a direct and material benefit.
FN1. Evidence at
trial established that fee payers in a district do benefit from the decrease in
congestion resulting from the improvements made in that district, because the
districts were drawn to reflect transportation and development corridors and
municipal boundaries and to link improvements to the area in which travel from
new development is expected.
In sum, we hold that the first enabling act is
constitutionally flawed because of its
failure to meet the "specifically and uniquely attributable" test set
forth in Pioneer Trust.
Consequently, the Du Page County ordinances passed pursuant to the first
enabling act are invalid and the monies collected thereunder should be *36
returned. (See Mills
v. Peoples Gas Light & Coke Co.
(1927), 327 Ill. 508, 535, 158 N.E. 814 (an
unconstitutional act confers no rights, affords no protection, imposes no
duties, and is, in legal contemplation, as inoperative as though it had never
been passed).) However, we believe the second enabling act has rectified the
constitutional deficiencies of the first act.
Therefore, fees imposed on new development under an ordinance which
conforms to the requirements of the second enabling act are not a confiscation
of private property in violation of the takings clauses of our State and
Federal Constitutions, but are instead a "reasonable **391 ***335
regulation under the police power."
Pioneer
Trust,
22 Ill.2d at 380, 176 N.E.2d 799.
[5] We next address plaintiffs' related contention that the
current Du Page County ordinance, ODT-021C-89, does not comply with the second
enabling act. [FN2] Plaintiffs claim
that the second enabling act requires that individual impact fee calculations
be made with respect to each proposed development within a county, and that the
Du Page County ordinance does not comply because it predetermines areawide fees
without considering the particular characteristics of a specific
development. However, the second enabling act states that the "need for
road improvements funded by impact fees shall be based upon generally
accepted traffic engineering practices as assignable to the new development
paying the fees." (Emphasis
added.) (605
ILCS 5/5-903 (West 1992).) Our review shows that testimony presented at
trial established that the fee calculation method used by Du Page County
complies with generally accepted traffic engineering practices and that a
majority of *37 impact fee ordinances nationwide use averages to
predetermine impact fees.
FN2. Because we have
held the first enabling act to be unconstitutional for authorizing an impermissible
taking, and the ordinances passed pursuant to it to be invalid, we find it
unnecessary to consider plaintiffs' remaining challenges to this legislation.
Plaintiffs correctly note that under section
5-906(b) of the second enabling act, the unit of local government imposing the
impact fee shall consider eight factors in determining the proportionate share
of the cost of road improvements to be paid by the developer, including
"[t]he extent to which the new development should be credited for providing
road improvements." (605
ILCS 5/5-906(b)(5) (West 1992).) However, this requirement is met by the
current Du Page County ordinance, which provides mechanisms by which a developer may obtain credits against his fees
for his individual contributions to the cost of road improvements. (See Du Page County Ordinance ODT-021C-89,
§ 9(1) ("the Fee Payer may enter
into a Fair Share Fee Agreement with the County providing for * * * reduction
of the fee through transportation systems management strategies, recapture
payments for construction credits, credit and security arrangements and other
matters relating to the fee"); see
also § 13(1) (
"[a]ny person who initiates development may apply for an improvement
credit against the fair share impact fee imposed by this Ordinance for any
contribution, payment, recapture, construction, or dedication of land accepted
and received by Du Page County for system improvements in accordance with the
provisions of this Section").)
Thus, Du Page County's use of a fee formula coupled with credits against
the fee for individual developers complies with the requirements of the second
enabling act.
[Analysis of
other challenges omitted]
[13][14] Next we address plaintiffs' argument that an appeals
provision of the current Du Page County ordinance violates procedural due
process by making it "practically and financially impossible for a fee
payor to contest the computations."
It is clear that the fundamental requirement of procedural due process
is the opportunity to be heard at a meaningful time and in a meaningful
manner. (Mathews
v. Eldridge
(1976), 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 32; People
v. R.G.
(1989), 131 Ill.2d 328, 353, 137 Ill.Dec. 588, 546 N.E.2d 533.) However,
"[t]he concept of *46 due process is 'flexible and calls for such
procedural protections as the particular situation demands.' " (People
v. P.H.
(1991), 145 Ill.2d 209, 235,
164 Ill.Dec. 137, 582 N.E.2d 700, quoting Mathews,
424 U.S. at 334, 96 S.Ct. at 902, 47 L.Ed.2d at 33.) Section 12 of ODT-021C-89 allows a developer
to provide an individual assessment of the impact of the proposed development
upon the transportation system in the county.
Plaintiffs specifically argue that compliance with this section, which
requires that an individual assessment use trip-generation data collected from
local empirical surveys, would be so difficult and time-consuming as to
preclude any meaningful appeals.
Although plaintiffs' expert testified that the time and effort involved
in contesting the fee computation would "add up to a significant cost,"
without a more precise estimate of the expense, this argument is purely
speculative. We find that when the
current Du Page County ordinance is examined as a whole, it provides sufficient
mechanisms whereby a fee payer may be meaningfully heard.
* * *
In conclusion, we hold that: (1) the first enabling act is
unconstitutional; (2) the Du Page County
ordinances passed pursuant to the first enabling act are invalid and the monies
collected thereunder should be returned;
(3) the second enabling act is constitutional; (4) Du Page County ordinance ODT-021C-89
complies with the requirements of the second enabling act; and
(5) section 11(2) of ODT-021C-89 is unconstitutional but severable from the
remainder of the ordinance.
The judgment of the appellate court is
affirmed in part and reversed in part, and the judgment of the circuit court is
affirmed in part and reversed in part. *51
The cause is remanded to the circuit court for proceedings consistent with this
opinion.
Appellate court affirmed in part and
reversed in part; circuit court affirmed
in part and reversed in part; cause
remanded.
165 Ill.2d 25, 649 N.E.2d 384, 208 Ill.Dec.
328
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