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Local Government Q&A Ancel Glink attorneys each month post a new question and answer on the website. Many of these questions have been edited and collected in a pamphlet in the Ancel Glink Library: 230 Questions that have Actual Answers. Set out below are a series of recent questions and answers. Test your knowledge of questions and answers about local governmental bodies with those listed below. Many of these questions are directed to municipalities, but others specifically deal with municipalities with some questions concern legal issues in the context of other governmental bodies. Many of these answers apply to all governments in Illinois. Click here to submit a question to Ancel Glink. Municipal Q&A - February 2005 May a local government require a developer to pay the cost of review of development plans?
ANSWER:
Yes. In the case of Inland Land Appreciation Fund, L.P.,et al. vs. County of Kane, 279 Ill.Dec. 649 (2003), a corporation which owned land in Kane County submitted a proposed subdivision plan to the County for review. The County retained an outside consultant to perform preliminary storm water engineering review. Kane County subdivision regulations permit the plat officer to engage professional assistance in order to provide a more timely review of the preliminary plans. The developer was notified of this provision of the County ordinance, and did not object. In fact, the letter asked for its return with a line for acceptance executed. The developer did this. A private engineering firm did the work and charged almost $7,000.00 in fees.
The owner of the property reimbursed the County in the amount of $2,800.00, but refused to make any further payments after the development plan was rejected. The County sued and the developer filed a counterclaim seeking reimbursement for the $2,800.00 arguing duress.
The court reviewed the provisions of the County subdivision code, which authorized the employment of outside consultants subject to reimbursement. The court found that "although there is no specific authorization in the County Code for such reimbursement agreements, they fall within the broad contractual powers conferred by Section 5-1005(3), which authorizes counties to "make all contracts and do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate powers." The court went on to describe the facts of the case under which the developer accepted the position of the County that it required outside help and paid fees until its application was rejected.
The court also found that the developer was not put in a situation of duress because it did not pursue the alternative approach which might result in a longer and less professionally-reviewed opinion. The court also said that the developer probably waived any duress argument by receiving the benefits of the review during the period of eight months, but then refusing to pay when the final decision was contrary to its interests.
This case is very similar to a case of a number of years ago in which a developer attempted to upset impact fee payments to a governmental body which were specified in an annexation agreement and which had been paid for some period of time. In that case the court said that the developer had been well represented in the negotiations, had taken the benefit of the annexation agreement, and could not simply choose one adverse part of the agreement for judicial review.
The opinion in the Kane County case contains the specific provision of the County's subdivision code, along with a copy of the letter sent to the developer before the consultant had done any significant work on this matter. Municipalities may include such a provision in their own subdivision codes, and utilize the same process for plan review in complex cases.
Previous Questions
May a governmental body give money to a charitable or religious organization?
What is the new Illinois law regarding terms of office of elected public officials?
Are religious institutions entitled to special treatment in zoning cases?
What Must Municipal Officials Do To Comply With The New Federal and State Overtime Regulations?
What Must Municipal Officials Do To Comply With The New State Ethics Acts?
Can a special use or variance be granted only to a particular person for for a limited time?
Does charging a fee for private use of public property destroy its tax-exempt status?
Does the one-year tort statute of limitations always apply against governmental bodies?
Do fire protection district codes supercede municipal codes?
Are Courts Especially Hard On Governmental Bodies?
What Are the New Rules About Recording Closed Meetings?
What Does a Municipality Need to Know About Extending
Utility Lines?
Are Courts Especially Hard On Governmental Bodies?
How Can You Achieve Flexibilty in
Health Care Coverages in a Collective Bargaining Agreement?
Are political discussions subject to the Open Meetings Act?
What can be done about IMRF Overfunding?
How can a municipality regulate wireless internet service providers?
How can governments counter unionization?
Where can I find an outline of zoning and planning issues?
How are closed session Minutes taken, approved and reviewed?
Will insurance companies and governmental pools cover claims
for "regulatory takings?"
Who gets to choose the municipal attorney?
How are the Open Meetings Act and FOIA impacted by municipal
elections?
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