Farmland was properly blighted for TIF, appellate court rules

By Steve Korris | Feb 10, 2011



MOUNT VERNON – Belleville city council members properly declared a farm blighted in order to build a shopping center, Fifth District appellate justices have decided.

On Feb. 7, Presiding Justice Melissa Chapman and Justice James Wexstten upheld the redevelopment of 64 acres at Green Mount Road and Carlyle Avenue.

They affirmed St. Clair County Circuit Judge Lloyd Cueto, who dismissed a claim that the project shouldn't have qualified for tax increment financing.

Wexstten wrote that the Tax Increment Financing Act necessarily contemplates new buildings that increase the value of property.

"While we recognize that farming is an important basic component of the economy, we must give effect to the plain language of a legislative enactment, even though the consequences may be harsh, unjust, absurd or unwise," Wexstten wrote.

Wexstten wrote that evidence supported a conclusion that the property failed to develop due to the risk of subsidence from an underground coal mine.

He wrote that Stephen Malec, who challenged the project, couldn't produce evidence that anyone other than the city's developer intended to invest in the property.

Dissenting Justice Stephen Spomer wrote that Malec rebutted the finding of blight by clear and convincing evidence.

"The sound growth of this area was not impaired by the mine because the mine did not interfere with the land's ability to be used as a productive and profitable farm," he wrote.

"Given the extensive evidence in the record that growth and development were occurring in the vast undermined areas surrounding the subject property and given the residential development that was occurring in the immediate vicinity, which is also undermined, I would find that the circuit court's approval of the TIF ordinance at issue was against the manifest weight of the evidence," he wrote.

In 2003, developers Green Mount Development and GMCR paid $7.5 million for 130 undeveloped acres and an 18 acre parcel with run down structures.

In 2004, they sold 83 acres to Centex Corporation for residential development.

In 2005, they terminated an oral lease between the former owners and Harold Amann, who had farmed the land for many years.

They hired a geologist, who reported that squeezing had occurred.

"Squeezing occurs when portions of a mine collapse and is indicative of a mine that is susceptible to further collapse," Wexstten wrote.

In 2006, the city council found the property qualified for tax increment financing.

The council declared blight because of the mine.

The council also created a business district to impose a tax for reimbursement of the developer's project costs.

The council also authorized the use of general sales taxes to reimburse the developers.

Wexstten wrote that developers spent more than $20 million to widen both roads, rebuild the intersection, install utilities, and partially remediate the mine.

The developers and Wal-Mart paid for remediation of the mine.

Malec sued the city and the developers, seeking to invalidate their ordinances.

At a bench trial before Cueto in 2009, mayor Mark Eckert testified he was unaware of any previous interest in developing the area.

He said he had witnessed destruction of property by mine subsidence.

Southern Illinois University geology professor Ronald Yarbrough testified for Malec that the limestone above the mine was extremely strong.

Cueto entered judgment against Malec on all counts, finding blight factors were present to a meaningful extent.

He concluded the city didn't abuse its discretion in finding the mine impaired growth.

He concluded the city didn't abuse its discretion in finding development was not reasonably anticipated to occur without tax increment financing.

Robert Sprague, of Sprague and Urban in Belleville, represented the city.

Bradley Winters, of Sonnenschein, Nath and Rosenthal in St. Louis, represented Green Mount Deveolopment and GMCR.

John Myers and Nick San Diego, of Rabin, Myers and Hanken in Springfield, and Penni Livingston of Fairview Heights represented Malec.

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