Since the agenda for Monday night's meetings, commencing at 6:30, reflect a determination to proceed with the TIF, particulary the item "TIF Timetable", I am publishing this letter originally intended as an FYI for the consideration of the Board. I did not wish to escalate it publicly at this time. As you all know, I am not a lawyer so this is not legal advice; I am just someone who has focused my attention on this issue. It would seem to present at least an ethical problem, if not more.
1. The But For Test
The TIF Act provides that no municipality may enact a TIF unless the municipality finds that the project area on the whole has not been subject to growth and development through investment by private enterprise and would not reasonably be anticipated to be developed without the adoption of the redevelopment plan. A municipality's finding to this effect is not sufficient evidence of its accuracy. This “but for— test is a stand-alone requirement and a sine qua non of qualifying for a TIF.
a. Pleasantdale School District v. Village of Burr Ridge concluded that development in areas next to the TIF as causing failure to meet the test as well as, of course, development within the TIF area. The fact that development has already occurred within the TIF district (the condominiums on Quincy street and the tracks, the Arcade commenced prior to the TIF; the Village Center some might consider artificially carved out of the TIF district, as well as development near the TIF district —“ the purchase of buildings on Pine Street and their conversion to condominiums at 100 Pine and 62-64 Pine, the condo conversions on Forest Avenue; the construction of Delaplaine Crossing and the large project underway on the north side of Burlington near Delaplaine - all might well support a finding that the village does not meet the test that development or private investment has not or would not reasonably be anticipated to occur absent a TIF.
2. The Blighting Factors Standard
The TIF Act requires that a conservation area has three blighting factors and that each blighting factor claimed must be present to a meaningful extent such that a municipality could reasonably find that each factor is clearly evident and reasonably distributed throughout the redevelopment area. Kane McKenna has not yet provided a list of which three blighting factors are present to a meaningful extent and clearly evident and reasonably distributed throughout the redevelopment area, the combination of which factors are detrimental to the public safety, health, welfare or morals and such that the area may become blighted, nor have they proved this point. This requirement is not a stand-alone test. It must be met together with the other two requirements raised in sections 1 and 3, as well as others enumerated in the TIF Act.
a. Henry County Board v. Village of Orion found that this must be more than “the routine disrepair common to many communities— and that the issuance of a number of building permits in the area argued against a finding that it was blighted.
b. Castel Properties v. City of Marion found blighting factors present in insufficient degree to impede development absent a TIF.
c. Pleasantdale v. Burr Ridge found that not only must the blighting factors be present in conformance with the requirements, but that they must also be the cause of the failure of private investment in the area.
It is highly arguable whether the proposed TIF area could meet this standard.
3. The Comprehensive Plan requirement
The TIF Act provides that no municipality may enact a TIF if the municipality does not have a redevelopment plan that conforms to a comprehensive plan for the development of the municipality as a whole. Like the “but for— test, this a stand-alone requirement, without the meeting of which no TIF may be enacted. Riverside has no such comprehensive plan and therefore may not be eligible for a TIF. This is a stand-alone requirement that must be met.
a. Kane McKenna reportedly has advised that the TOD plan may serve as that comprehensive plan. I think it cannot. Bills presently under review in the Illinois Assembly and supported by the Illinois Tax Increment Financing Association, HB 0256 and HB 1884, seek to qualify TODs as allowable redevelopment plans under the TIF Act. If a TOD does not yet qualify as a redevelopment plan, it cannot then qualify as the greater, comprehensive plan for the village that the TIF Act requires. These bills under consideration also define the transit-oriented redevelopment area as encompassing a one-half mile radius from the train depot, and this would not therefore qualify a TOD as a comprehensive plan for the entire village.