IN THE CIRCUIT COURT OF THE SIXT

IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT

DEKALB COUNTY, ILLINOIS

DEKALB COUNTY BUILDING AND DEVELOPMENT ASSOCIATION, ) an Illinois not-for-profit ) corporation, in its business capacity and as Assignee of 146 HOMEOWNERS listed in Exhibit 1 and on behalf of others similarly situated to said Assignors	) ) ) ) ) ) ) ) )
	)
Plaintiffs,	)
	)
vs.	)
	)
THE SYCAMORE PARK DISTRICT, a duly organized public entity, DAVID PEEK, as Executive Director and Individually, LAWRENCE STECZO, as President and Individually, MARLYN BURKART, as Vice President and Individually, RICHARD WAGLEY, as Treasurer and Individually, MARTIN JAHNEL, as Secretary and Individually, JOHN OWENS, as Commissioner and Individually and THE CITY OF SYCAMORE, an Illinois Municipal Corporation,	) ) ) ) ) ) ) ) ) ) ) ) ) )
	)
Defendants.	)

COMPLAINT

NOW COMES the Plaintiffs, DEKALB COUNTY BUILDING AND DEVELOPMENT ASSOCIATION, an Illinois not-for-profit corporation, in its business capacity and as Assignee of 146 HOMEOWNERS listed in Exhibit 1, and on behalf of others similarly situated to said Assignors; by and through their attorney, MICHAEL P. COGHLAN, of the firm of SMITH & TUCKER, seeking Class Action Certification (735 ILCS 5/2-801), Mandamus (735 ILCS 5/14-101), Declaratory Relief (735 ILCS 5/2-701), Injunctive Relief (735 ILCS 5/11-101 and 5/11-303), Freedom of Information Act Relief (5 ILCS 140/2), declaration of the unconstitutionality of the Sycamore Park Impact Fee Ordinance, violations of the Annexation Agreement, and other relief and for their Complaint against Defendants state as follows:

1. Plaintiff DEKALB COUNTY BUILDING AND DEVELOPMENT ASSOCIATION (hereafter “DCBDA”) is a trade association and an Illinois not-for-profit corporation. DCBDA represents the interests of the homebuilding industry in accordance with the provisions of 805 ILCS 105/104.05. DCBDA is also the assignee of the claims and causes of action it asserts in this case from 146 individual homeowners pursuant Assignments of Claims from the individual homeowners listed in Exhibit “1” (hereafter, collectively the “Homeowners”).

2. Defendant THE SYCAMORE PARK DISTRICT (hereafter, “PARK DISTRICT”), is a duly organized public entity and an Illinois unit of local government located in DeKalb County, Illinois.

3. Defendant THE CITY OF SYCAMORE (hereafter, the “CITY”), is an Illinois Municipal Corporation and an Illinois unit of local government located in DeKalb County, Illinois.

4. On June 24, 1996 the CITY adopted and began to enforce an ordinance No. 10-3-5 (the “Impact Fee Ordinance”), a current copy of which is attached hereto and incorporated herein as Exhibit “2”, that required parties seeking to subdivide land or to construct a development for residential purposes on land situated in or contiguous with both the CITY and PARK DISTRICT boundaries or within the CITY’S planning jurisdiction and not within any municipality, to pay Impact Fees to the PARK DISTRICT; these Impact Fees were to be held by the PARK DISTRICT and used to acquire park and recreation land. City of Sycamore Ordinance, 10-3-5 paragraph B.4.a.

5. The Impact Fee Ordinance specified that “no other use shall be made of the funds so collected.” City of Sycamore Ordinance, 10-3-5 paragraph B.4.a.

6. From and after the date the Impact Fee Schedule was promulgated and until the date of filing this Complaint, the PARK DISTRICT has collected $620,944.75 in Park Impact Fees pursuant to the Impact Fee Ordinance; $354,033.50 of the total fees collected were paid for new homes in the Townsend Wood and Landahl North subdivisions. See Exhibit “3” as the Park Impact Fee summary fees collected and spent from 1997 to present, per Park District.

7. The PARK DISTRICT has violated the laws by using the funds paid for Impact Fees for uses other than the acquisition of park and recreation land. Specifically, the PARK DISTRICT spent $138,750.86 of the one-time impact fee payments for rent of the Community Center, an on-going operating expense. See Exhibits “3”, “4” and “5” including the rental lease and monthly rent payments.

8. The Impact Fee Ordinance specified that the PARK DISTRICT, as a part of its fulfillment of its intergovernmental agreement with the CITY of Sycamore, was to “conduct an annual audit, pursuant to generally accepted accounting practices, of the funds collected and spent under this section and publish the audit in a newspaper of general circulation within the city of Sycamore, Illinois.” City of Sycamore Ordinance, 10-3-5 paragraph B.4.a.

9. The PARK DISTRICT has violated the ordinance by failing and/or refusing to prepare or publish the audit as required by its intergovernmental agreement with the CITY.

10. The CITY has been notified that the PARK DISTRICT has violated City, State and Federal law, and its intergovernmental agreement with the CITY of Sycamore. The CITY of Sycamore has failed to enforce its intergovernmental agreement with the Sycamore PARK DISTRICT by its failure to demand the audit described above, among other violations, and has therefore failed to protect the payers of the required impact fees from misuse of these special use funds.

11. The residents of the subdivisions and developments where Impact Fees have been paid have immediate need for the acquisition of park and recreation land See Exhibit “6” plat showing development over prime park land.

12. The misappropriation of the Impact Fees and failure to prepare and publish the required audits of those fees by the PARK DISTRICT is without any basis in fact, without any justification in law and is in violation of City of Sycamore Ordinance 10-3-5.

13. The PARK DISTRICT’S continued failure and/or refusal to acquire park land with the Impact Fees, failure to cease using Impact Fees for operating expenses, and failure to return the rent payments to the Impact Fee fund violate duties imposed on it by the United States and Illinois Constitutions as well as Illinois Supreme Court case authority.

14. At all times relevant, Plaintiffs have complied with the laws of the State of Illinois, paid Impact fees timely and in-full, and have a clear legal right to acquire park land with and application of the Impact Fees for the acquisition of park and recreation land. See Exhibit “7” showing payment of Impact Fees.

15. The PARK DISTRICT has neither valid reason nor discretionary power or authority to refuse to acquire park land with the Impact Fees received pursuant to Ordinance 10-3-5. In fact, the PARK DISTRICT had plenty of reserve funds on-hand to pay the Community Center rent without using the Impact Fees. See Exhibit “8” Park District Budgets showing reserves exceeding the annual rent for the Community Center.

16. During the past 9 years most of the land available for parks in Townsend Woods and Landahl North has been developed with houses, roads, utilities and other structures. During the past 9 years the price of land available for parks continues to increase, such that the Impact Fees will purchase less and less land. As the PARK DISTRICT continues to use Impact Fees for operating expenses, the Impact Fee fund is diminishing resulting in fewer dollars being available for the purchase of land. Homeowners in Townsend Woods and Landahl North will have far less park land or no park land at all, despite full timely payment of all Park Impact Fees. Furthermore, the Park breached a fiduciary duty by asking the CITY to increase in the cost of land before attempting to purchase park land as required by the Impact Fee laws and by using impact fees to pay for a land use plan.

17. Any refund or other remedy runs with the property. Unlike taxes, which are imposed for societal rather than individual benefits, impact fees provide a benefit in relation to the payment. Impact fees are collected in order to provide a direct and material benefit, and are based on the use or need for service generated by the individual fee payer. Thus, because the owners of property subject to an impact fee are the beneficiaries of the service and improvements the fees provide, it is appropriate for those fees to be applied to the homes from which the fee was paid.

COUNT I

CLASS ACTION 735 ILCS 5/2-801

18. Plaintiffs re-allege and incorporate paragraphs 1 through 17 immediately preceding this Count.

19. The Plaintiffs, pursuant to §5/2-801 et. seq. of the Illinois Civil Practice Act (735 ILCS 5/2-801 et. seq.), bring this action each on their own behalf and on behalf of all Class Members. The Class may include all homeowners in Townsend Woods and Landahl North ($354,033.05), or the Class may include all homeowners throughout the Sycamore area for who Park Impact Fees were paid ($620,944.75).

20. Class Members could include all individuals and entities who were required by the CITY to pay and did pay Impact Fees to the PARK DISTRICT pursuant to the Impact Fee Ordinance and the Impact Fee Schedule, and which desire to have all such fees placed into a trust for the purchase of park and recreation land to satisfy the intent of the State, Federal and Local Fee laws, which group of individuals and entities fulfills the requirements of §5/2-801 of the Code of Civil Procedure in that:

a) The class is so numerous that a joinder of all the members is impracticable;

b) There are common questions of fact and law that are common to the class which predominate over any questions that may affect any individual member including, but not necessarily limited to, i) whether the Impact Fees are illegal, ii) the amount of Impact Fees paid pursuant to the Impact Fee Ordinance and Impact Fee Schedule, iii) whether the CITY and PARK DISTRICT are now obligated to acquire park land with the Impact Fees, iv) whether to cease the expenditure of Impact Fees for operating expenses, v) and whether to replace the $138,750.86 Impact Fees spent for operating expenses;

c) The Class Representatives will fairly and adequately represent the interest of the class by retaining experienced counsel to prosecute this action. None of these Class Representatives or their counsel has any interests which would lead then not to vigorously prosecute this action.

d) A class action is an appropriate method for the fair and efficient adjudication of the controversy in that most Class Members are unaware of the wrongs alleged in the Complaint or their right to legal redress; the individual litigation of individual claims is not economically feasible and would be a unnecessarily time consuming to the Court; the common claims are of a pubic rather than a private nature and in the absence of a class action, the common public interests, created by the illegality of the Impact Fees Ordinance and the Impact Fee Schedule and the Impact Fees imposed thereunder (as alleged below), would go unredressed.

WHEREFORE, the plaintiffs respectfully pray this Court to Certify as a class, and as Plaintiffs herein, those individuals and entities who were required to pay and did pay (but did not receive park land) Impact Fees pursuant to the Impact Fee Ordinance and Impact Fee Schedule, appoint the Class Representatives as representatives of such class and appoint the Class Representatives’ current counsel for the class;

a) Enjoin the CITY and PARK DISTRICT from expending Impact Fees they wrongfully collected pursuant to the Impact Fee Ordinance and Impact Fee Schedule;

b) Award Plaintiffs their costs;

c) Award Plaintiffs their reasonable attorney fees; and

d) Award Plaintiffs any other relief the Court deems just and proper.

COUNT II

INJUNCTION 735 ILCS 5/11-101

21. Plaintiffs re-allege and incorporate paragraphs 18 through 20 immediately preceding this Count.

22. Proper Notice has been provided to the adverse parties.

23. The facts clearly shown by the complaint show that immediate and irreparable injury, loss, or damage will result to the applicant if an injunction does not issue.

24. The Complaint defines the injury and states why the injury is irreparable. Specifically, limited land and monies are being used-up.

25. Plaintiff is requesting that a Motion for a Preliminary Injunction be set for hearing at the earliest possible time and take precedence over all matters except older matters of the same character.

WHEREFORE, the Plaintiffs pray that the Court:

a) Enjoin the CITY and PARK DISTRICT from expending Impact Fees for rent and operating expenses or other purposes other than the acquisition of Park Land that they wrongfully collected pursuant to the Impact Fee Ordinance and Impact Fee Schedule;

b) Award Plaintiffs their costs;

c) Award Plaintiffs their reasonable attorney fees; and

d) Award Plaintiffs any other relief the Court deems just and proper.

COUNT III

DECLARATORY RELIEF 735 5/2-701

26. Plaintiffs re-allege and incorporate paragraphs 21 through 25 immediately preceding this Count.

27. This is a case of actual controversy because relief has been demanded and refused.

28. The Plaintiffs are interested in the controversy because their families will never have a community park or neighborhood park if all the land and funds are used-up.

29. The Plaintiffs are asking the Court to make binding declarations of rights, having the force of final judgments, including the determination, of the construction of the Sycamore Impact Fee ordinance.

30. The Plaintiffs are asking the Court to make a declaration of the rights of the parties interested.

31. The judgment or order would terminate the controversy or some part thereof, giving rise to the proceeding.

32. For reasons hereinabove set forth, an actual case or controversy exists between the parties with respect to the constitutionality of the Impact Fee Ordinance, the Impact Fee Schedule, and the use of Impact Fees to pay rent for the Community Center, and pursuant to §2/701 of the Code of Civil Procedure (735 ILCS 5/2-701), it is reasonable and desirable for the court to determine the constitutionality and validity of the Impact Fee Ordinance, Impact Fee Schedule, and use of the Fees, and to declare them to be unconstitutional and void, on their face and as applied, because they failed to meet the Illinois constitutional standard for developer exactions.

33. The instant action is not an action or proceeding for a declaratory judgment or order involving any political question where the defendant is a State officer whose election is provided for by the Constitution.

WHEREFORE, Plaintiffs respectfully pray that the Court:

a) Declare the Impact Fee Ordinance, Impact Fee Schedule, and Sycamore PARK DISTRICT’S use of the Impact Fees for operating expenses to be unconstitutional under the provisions of the Constitution of the State of Illinois, and case authority of the Illinois Supreme Court and that the Sycamore ordinance is intended to provide Homeowners in Townsend Woods and Landahl North subdivisions with i) park land, ii) cessation of the use of Impact Fees for rent payments, and iii) replace the Impact Fees previously used for rent payments;

b) Declare that CITY was without authority to have required payment of Impact Fees pursuant to the Impact Fee Ordinance and Impact Fee Schedule;

c) Award Plaintiffs their costs; and

d) Award Plaintiffs any other relief the Court deems just and proper.

COUNT IV

MANDAMUS 735 5/14-101

34. Plaintiffs re-allege and incorporate paragraphs 26 through 33 immediately preceding this Count.

35. The CITY and PARK DISTRICT’S continued refusal to acquire park land with the Impact Fees laws is arbitrary and capricious, without any justification in law, and in violation of the provisions of the law.

36. Plaintiffs each have demanded the acquisition of land, cessation of rent payments and replacement of fees spent for rent and each of such demands has been denied by refusal of delay of the CITY and PARK DISTRICT. In addition, and in the alternative, the CITY and PARK DISTRICT have no intention to acquire park land, stop rent payments or replace the impact fees spent for rent and an any further demand will be futile.

37. Acquisition of park land cessation of rent payments using Impact Fees and replacement of misappropriated Impact Fees do not require the exercise of the CITY or PARK DISTRICT’S discretion and, therefore, the CITY and PARK DISTRICT have no right to continue to retain and use improperly the Impact Fees collected from Plaintiffs, or the Class Members.

38. The CITY and PARK DISTRICT’S refusal to acquire park land with the Impact Fees is without any basis in fact, without any justification in law and is in violation of Illinois law.

39. The CITY and PARK DISTRICT’S arbitrary and capricious refusal to acquire park land with the Impact Fees causes and continues to cause Plaintiffs and the Class Members financial hardship and substantially interferes with their fundamental rights.

40. At all times relevant, Plaintiffs have complied with the laws of the State of Illinois and have a clear legal right to the park land for which they paid.

WHEREFORE, Plaintiffs individually, and on behalf of the Class Members, respectfully pray that the Court:

a) Issue a writ of Mandamus requiring the Defendants to aquire park land specifically and uniquely attributable to homeowners in Townsend Woods and Landahl North, cease payments of rent using Impact Fees, and replace the $138,750.89 paid for rent;

b) Award Plaintiffs their reasonable attorneys’ fees and costs incurred by, and to be incurred, by Plaintiffs in prosecuting these claims for mandamus and acquire park land; and,

c) Award such other and further relief in law and in equity as this Court deems appropriate and just.

(seeking leave to file)

COUNT V

PUBLIC FUNDS DISBURSEMENT VIOLATIONS

735 ILCS 5/11-301 AND 303

41. Plaintiffs re-allege and incorporate paragraphs 34 through 40 immediately preceding this Count.

42. This action is being prosecuted by Homeowners who are also citizens and taxpayers of the State of Illinois.

43. This action is being commenced by petition for leave to file an action to restrain and enjoin the defendant or defendants from disbursing the public funds of the State.

44. The petition has attached thereto a copy of the complaint, leave to file for which was thereby petitioned.

45. The petition is being presented to the court.

46. The petition requests that the court enter an order stating the date of the presentation of the petition and fixing a day, which shall not be less than 5 nor more than 10 days thereafter, when such petition for leave to file the action will be heard.

47. Petitioner has provided notice in writing to each defendant named therein and to the Attorney General, specifying in such notice the fact of the presentation of such petition and the date and time when the same will be heard.

48. Said notice will be served upon the defendants and upon the Attorney General, at least 5 days before the hearing of such petition.

49. There is reasonable ground for the filing of such action as set forth herein.

WHEREFORE, the Plaintiff asks this Court to enjoin the further disbursement of Park Impact Fees for operating expenses including rent for the Community Center.

a) Enjoin the CITY and PARK DISTRICT from expending Impact Fees for rent;

b) Award Plaintiffs their costs;

c) Award Plaintiffs their reasonable attorney fees; and

d) Award Plaintiffs any other relief the Court deems just and proper.

COUNT VI

CONSTITUTIONAL VIOLATION -

TAKING WITHOUT JUST COMPENSATION

50. Plaintiffs re-allege and incorporate paragraphs 41 through 49 immediately preceding this Count.

51. The Park Impact Fee is unconstitutional in so far as the fee does not bear a rational relationship to the individual homes for which the fee was paid and the CITY lacks statutory authority to impose impact fees for payment of rent.

52. The Fee is unconstitutional in that the park “impact” is less than the amount of the fee actually paid.

53. The excess payment results in an unconstitutional “taking” pursuant to the State and Federal provisions relating to just compensation for governmental takings.

54. On June 24, 1996 the CITY adopted and began to enforce an ordinance (the “Impact Fee Ordinance”) that required parties seeking to subdivide land or to construct a development for residential purposes on land situated in or contiguous to both the CITY and PARK DISTRICT boundaries or within the CITY’S planning jurisdiction and not within any municipality, to pay development impact fees for the acquisition of park and recreation land. The relevant provisions of the Impact Fee Ordinance are attached hereto and incorporated herein by this reference. Among other things, the Impact Fee Ordinance required a cash contribution from each subdivider or developer “[a]s a condition of approval of a final plat of a residential subdivision…”

55. On February 21, 2005, the CITY in cooperation with the PARK DISTRICT promulgated a development impact fee schedule (the “Impact Fee Schedule”). Pursuant to the Impact Fee Schedule, parties seeking to construct residential dwelling units were required to pay an Impact Fee per dwelling unit, which varied based on the type of residence and number of bedrooms per unit. A copy of the Impact Fee Schedule is attached hereto and incorporated herein by this reference.

56. The Impact Fee Ordinance required parties seeking to subdivide land or to construct a development on land for residential purposes in the areas described in paragraph 6 above to pay Impact Fees to the PARK DISTRICT, to be held by the PARK DISTRICT and used to acquire park and recreation land that would serve the respective subdivision or development.

57. From and after the date the Impact Fee Schedule was promulgated and from and after the date of adoption of the Impact Fee Ordinance and until the date of filing this Complaint, the PARK DISTRICT has collected Impact Fees from parties seeking to construct residential dwelling units pursuant to the Impact Fee Schedule and the Impact Fee Ordinance.

58. The Plaintiffs are Homeowners within the area subject to the Impact Fee Ordinance.

59. At various times after the effective date of the Impact Fee Ordinance, because they believed that they had no choice but to satisfy the requirements of the Impact Fee Ordinance in order to develop their property, Plaintiffs paid Impact Fees to the PARK DISTRICT.

60. After receipt of evidence of the respective payments of the Impact Fees, the CITY issued building permits thereby authorizing the construction of one or more residences on their respective properties.

61. Without producing evidence of the aforesaid payments, the CITY would not have issued the aforesaid approvals of final plat of a residential subdivision or approvals of a final special use permit for a residential planned unit development.

62. Plaintiffs paid the Impact Fees under duress and under the mistaken belief that the Impact Fee ordinance was constitutional as written and as applied.

63. On information and belief, the CITY, since the date of adoption of the Impact Fee Ordinance, has never knowingly issued an approval of final plat of a residential subdivision or approval of a final special use permit for a residential planned unit development to a party unless evidence of payment of Impact Fees has been presented to the CITY.

64. Plaintiffs demanded that the Defendants a) acquire park land, b) cease the use of Impact Fees for payment of operating expenses, and c) replace the Impact Fees already used to pay rent for the Community Center and said demands were denied.

65. The Constitution of the United States, Fifth Amendment specifies that private property shall not be taken for public use, without just compensation.

66. Compensation is mandated in this case, under the Just Compensation Clause, because the government held the property for its own purposes, even though that use is temporary.

67. No subsequent action by the PARK DISTRICT can relieve the Defendants of the duty to provide compensation for the period during which the taking was effective.

68. In general the Park District may not interfere with the Plaintiffs’ use and continued possession of property without affording the Plaintiff’s due process.

69. ILCS Constitution, Article 1, Section 2 specifies that “No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.”

70. In order for the City of Sycamore to comply with the “specifically and uniquely attributable” test, it can only impose impact fees for the improvements made necessary by the additional park traffic generated by new development. Furthermore, the new development paying the impact fee must receive a direct and material benefit from the improvement financed by the impact fee otherwise the fee is unconstitutional.

WHEREFORE, the Plaintiff asks this Court to:

a) Declare the Park Impact Fee unconstitutional;

b) Declare the Defendants taking of the Impact Fees unconstitutional;

c) Award Plaintiffs their costs;

d) Award Plaintiffs their reasonable attorney fees; and

e) Award Plaintiffs any other relief the Court deems just and proper.

COUNT VII

CONSTITUTIONAL VIOLATION

DENIAL OF PROCEDURAL DUE PROCESS

71. Plaintiffs re-allege and incorporate paragraphs 50 through 70 immediately preceding this Count.

72. The Illinois Supreme Court and the Illinois Constitution mandate that any governmental requirement for the payment of money in lieu of land, as a condition to the subdivision of land be “specifically and uniquely attribute to” the demands on the public created by the particular subdivision.

73. Throughout the period of time during which the Impact Fee Ordinance and Impact Fee Schedule were in force and effect, the Impact Fee amounts set forth on the Impact Fee Schedule did not measure, in accordance with the aforesaid constitutional standard, the impact of the construction upon the Park Districts needs for new park and recreational lands. Specifically, such fee amounts failed to recognize and take into account the fact that the purported impact of residential development on the area will vary depending upon, inter alia, the assessed value of such dwelling units or the number of school-aged children anticipated to live within such dwelling units. Furthermore, in addition to the monies collected under the Impact Fee Ordinance, the CITY and the PARK DISTRICT acquired or will acquire land, and have collected and will collect impact fees, under the ordinances of other units of local government – a fact that was not taken into account by the CITY in establishing the fee amounts set forth on the Impact Fee Schedule.

74. The Park Impact Fee violates the uniformity clause because the Ordinance failed to require that the classification of a fee or tax must be based on a real and substantial difference between those persons assessed and those who are not, and must bear some reasonable relationship to the object of the legislation or to public policy.

75. There is no real and substantial difference between home owners in the new development which generates additional park traffic, and existing homes which do not. Yet, the home owners in Landahl North and Townsend Woods are apparently paying more than half of the community center rent. This is an unconstitutional violation. Further, the expenditure of impact fees from the new development does not bear a reasonable relationship to the legislative purpose of assuring that new development supports its fair share of the cost of meeting the demand for park land.

76. Holding impact fees and spending park impact fees on community center rent violates procedural due process by making it practically and financially impossible for a fee payer to contest the payments.

77. The fundamental requirement of procedural due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Due process is calls for such procedural protections as the particular situation demands. In this case the Homeowners were deprived of Due Process for a period of up to 9 years.

WHEREFORE, the Plaintiff asks this Court to

a) Declare the Park Impact Fees, their collection and application to be unconstitutional;

b) Enjoin the CITY and PARK DISTRICT from expending Impact Fees for operating expenses;

c) Award Plaintiffs their costs;

d) Award Plaintiffs their reasonable attorney fees; and

e) Award Plaintiffs any other relief the Court deems just and proper.

COUNT VIII

CONSTITUTIONAL VIOLATION

DENIAL OF SUBSTANTIVE DUE PROCESS

78. Plaintiffs re-allege and incorporate paragraphs 71 through 77 immediately preceding this Count.

79. The Plaintiffs were denied substantive due process because the Park Impact Fee ordinance failed to adequately specify the following:

(a) The acquisition of new or existing park land for which an impact fee is imposed must be specifically and uniquely attributable to the traffic demands generated by the new development paying the fee.

(b) The impact fee imposed must not exceed a proportionate share of the costs incurred or the costs that will be incurred by the unit of local government in the provision of park land to serve the new development.

(c) The proportionate share is the cost specifically attributable to the new development after the unit of local government considers the following: (i) any appropriate credit, offset or contribution of money, dedication of land, acquisition of land, or construction of park improvements; (ii) payments reasonably anticipated to be made by or as a result of a new development in the form of user fees, debt service payments, or taxes which are dedicated for park land acquisition or park facilities for the area of the new development; and (iii) all other available sources of funding road improvements.

(d) In determining the proportionate share of the cost of park land to be paid by the new home builder, the following 8 factors shall be considered by the unit of local government imposing the impact fee: (1) The cost of existing parks and park facilities within the service area or areas, (2) The means by which existing parks and park facilities have been financed to cure existing deficiencies. (3) The extent to which the new development being assessed the impact fees has already contributed to the cost of park land and park facilities through taxation, assessment, or developer or landowner contributions paid in prior years. (4) The extent to which the new development will contribute to the cost of acquiring and improving existing park land or parks and park facilities in the future. (5) The extent to which the new development should be credited for providing park improvements, without charge to other properties within the service area or areas. (6) Extraordinary costs, if any, incurred in servicing the new development.

(7) Consideration of the time and price differential inherent in a fair comparison of fees paid at different times. (8) The availability of other sources of funding park land and park facilities including but not limited to user charges, general tax levies, intergovernmental transfers, and special taxation or assessments.

(e) The impact fee ordinance or resolution shall provide for the calculation of an impact fee in accordance with generally accepted accounting practices.

WHEREFORE, the Plaintiff asks this Court to

a) Declare the Park Impact Fees, their collection and application to be unconstitutional;

b) Enjoin the CITY and PARK DISTRICT from expending Impact Fees for operating expenses;

c) Award Plaintiffs their costs;

d) Award Plaintiffs their reasonable attorney fees; and

e) Award Plaintiffs any other relief the Court deems just and proper.

COUNT IX

CONSTITUTIONAL VIOLATION

DENIAL OF EQUAL PROTECTION

80. Plaintiffs re-allege and incorporate paragraphs 78 through 79 immediately preceding this Count.

81. The Park Impact Fees paid by Plaintiffs effected unconstitutional taking because the impact fees were not specifically and uniquely attributable to new development paying fees and the fees were to be used to fund parks facilities in areas immediately adjacent to, the area from which expended monies were collected. U.S.C.A. Const.Amend. 5; S.H.A. Const. Art. 1, § 2;

82. The assessment of Impact Fees to pay for rent of the Community Center is unconstitutional because the fee is being applied for the total activity of the community rather than improvements necessitated by the new homes in the Townsend Woods and Landahl North subdivisions.

83. The Plaintiffs were denied equal protection of the laws when the PARK DISTRICT failed or refused to a) acquire park land as required by law, b) failed or refused to cease the payments of operating expenses with Park Impact Fees, and c) failed or refused to replace park Impact Fees used to pay rent for the Community Center.

WHEREFORE, the Plaintiff asks this Court to

a) Declare the Park Impact Fees, their collection and application to be unconstitutional;

b) Enjoin the CITY and PARK DISTRICT from expending Impact Fees for operating expenses;

c) Award Plaintiffs their costs;

d) Award Plaintiffs their reasonable attorney fees; and

e) Award Plaintiffs any other relief the Court deems just and proper

COUNT X

SYCAMORE ORDINANCE VIOLATIONS

84. Plaintiffs re-allege and incorporate paragraphs 80 through 83 immediately preceding this Count.

85. Defendants failed to provide an audit as required by the Ordinance.

86. Defendants failed to acquire park land as required by the Ordinance.

87. Defendants spent Park Impact Fees on operating expenses contrary to the Ordinance.

WHEREFORE, the Plaintiff asks this Court to

a) Find the Defendant in violation of the Sycamore Park Impact Fees Ordinance; require Defendants to acquire park land, cease payment of rent with Impact Fees and replace the Impact Fees spent on rent;

b) Award Plaintiffs their costs;

c) Award Plaintiffs their reasonable attorney fees; and

d) Award Plaintiffs any other relief the Court deems just and proper.

COUNT XI

ANNEXATION AGREEMENT VIOLATION

88. Plaintiffs re-allege and incorporate paragraphs 84 through 87 immediately preceding this Count.

89. The Park Impact Fee imposed pursuant to the Annexation Agreement(s) relative to Townsend Woods and Landahl North subdivisions are and were improper because CITY based the fee amount on citywide property values and characteristics rather than on specific property at issue.

90. The Park Impact Fee provided for in the Townsend Woods and Landahl North Annexation Agreement is unconstitutional for the same reasons specified above for the Park Impact Fee Ordinance.

91. The Park Impact Fee specified in the Annexation Agreement did not establish site-specific relationship between amount and value of specific land that would have been dedicated.

92. The burden is on the City to demonstrate that Park Impact Fee is related to value of land that might otherwise be dedicated.

93. The Park Impact Fee, imposed by city on land owner as condition of approval of subdivision, does not meet constitutional requirements for fees, should not be upheld as lawful condition on annexation, even though subdivision property was originally in unincorporated county and developer entered into the Annexation Agreement with CITY.

94. Once the CITY agreed to annex subdivision property, the CITY and PARK DISTRICT were bound by statutory fee requirements and Illinois law.

95. The City of Sycamore conditioned approval of a subdivision on the payment of a per-lot fee for park land. The methodology for calculating the fee does not satisfy the Federal or State Constitutions for lots in Townsend Woods and Landahl North.

96. A fee in lieu of dedication is only permissible if it is based on the value of land which the developer could be required to dedicate. Because Sycamore did not determine in a site-specific manner the value of the land in Townsend Woods and Landahl North, the fee is invalid.

97. The CITY OF SYCAMORE reviewed the Annexation Agreement and proposed amendments and found that the land available for parks in Townsend Woods and Landahl North was diminishing, and the price of land was increasing.

98. The developer paid the required Park Impact Fees in full and complied with the responsibilities under the Annexation Agreement.

99. The fact that the fee may have been part of an Annexation Agreement does not excuse the violation.

COUNT XII

UNJUST ENRICHMENT

100. Plaintiffs re-allege and incorporate paragraphs 88 through 99 immediately preceding this Count.

101. Plaintiffs, in good faith and pursuant to the requirements of the Impact Ordinance, paid Impact Fees to the PARK DISTRICT as a necessary precondition to an approval of final plat of a residential subdivision or approval of a final special use permit for a residential planned unit development for their respective properties.

102. For the reasons set forth above, and because the Impact Fee Ordinance was unconstitutional, invalid and void, all Impact Fees imposed and collected thereunder were illegally collected and should be replaced.

103. Notwithstanding that the Impact Fees were illegal and that the Impact Fee Ordnance was unconstitutional and void as a matter of law, since the effective date of the Impact Fee Ordinance, the CITY and PARK DISTRICT have retained all amounts paid by Plaintiffs as Impact Fees and have denied demands to replace the misappropriated Fees.

104. The CITY and PARK DISTRICT have unjustly retained, and have been unjustly enriched by their retention of, the Impact fees paid by Plaintiffs to the detriment of Plaintiffs.

105. The retention of the illegal Impact Fees by the CITY and PARK DISTRICT violates fundamental principals of justice, equity and good conscience.

WHEREFORE, Plaintiffs respectfully pray that the Court:

a). Require the defendants to facilitate the acquisition of park land in the Townsend Woods and Landahl North subdivisions;

b). Order the defendants to stop paying rent with impact fees;

C. Replace the Impact Fee funds used for rent payments.

COUNT XIII

PUBLIC POLICY VIOLATION

106. Plaintiffs re-allege and incorporate paragraphs 100 through 105 immediately preceding this Count.

107. The PARK DISTRICT violated public policy by accumulating excess Park Impact Fees.

108. The defendants violated public policy by requiring the payment of Park Impact Fees for the purpose of accumulating funds for the remote future or contingencies which may never occur.

109. The Park Impact Fees were not necessary to defray the expenses of the government.

110. The defendants required the payment of Park Impact Fees primarily for the purpose of enriching the PARK DISTRICT funds with little or no need for park impact due to new residential development.

111. The unnecessary accumulation of money in the public treasury was unjust to the homeowners in Townsend Woods and Landahl North subdivisions because it deprived them of the use of the money taken from them for a considerable period.

112. The unnecessary accumulation of Park Impact Fees had the tendency to tempt the PARK DISTRICT to use the funds improperly.

COUNT XIV

FREEDOM OF INFORMATION ACT VIOLATION

113. Plaintiffs re-allege and incorporate paragraphs 106 through 112 immediately preceding this Count.

114. Plaintiffs have requested documents pursuant to the Illinois Freedom of Information Act (FOIA) and are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of the Freedom of Information Act.

115. Plaintiff made the FOIA request to enable the Homeowners in Townsend Woods and Landahl North to fulfill their duties of discussing the use of Park Impact Fees fully and freely, making informed political judgments and monitoring the CITY and PARK DISTRICT governments to ensure that the Park Impact Fee expenditures are being made in the public interest.

116. Plaintiffs do not seek to violate individual privacy, further a commercial enterprise, or to disrupt the duly-undertaken work of any public body independent of the fulfillment of any of the fore-mentioned rights of the people to access to information.

117. Plaintiffs are not asking the PARK DISTRICT to maintain or prepare any public record which was not maintained or prepared by such public body at the time when this Act becomes effective, except as otherwise required by applicable local, State or federal law.

118. The Plaintiffs have a right to know the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of government and the lives of any or all of the people.

119. The FOIA requires the PARK DISTRICT to promptly provide, to any person who submits a written request, a copy of any public record required to be disclosed, and shall certify such copy if so requested.

120. THE PARK DISTRICT was required to promptly comply with or deny a written request for public records within 7 working days after its receipt.

121. The PARK DISTRICT’S failure to respond fully to a written request within 7 working days after its receipt is considered a denial of an important part of the request. The PARK DISTRICT failed or refused to provide “minutes of all executive session meetings relating to the collection and/or expenditure of funds in the Developer’s Contribution Fund “all records relating to all survey(s) concerning the use of park District facilities”, and “the description, contents, and dates of all guest sign-in sheets generated in the course of Sycamore Park District Business.” See attached FOIA request Exhibit “9”

122. Any person making a FOIA request for public records shall be deemed to have exhausted his administrative remedies with respect to such request if the head of the public body affirms the denial or fails to act within the time limit provided. PARK DISTRICT Executive Director Peek responded to the FOIA request and failed to provide the requested information specified in the paragraph above.

123. Any person denied access to inspect or copy any public record by the head of a public body may file suit for injunctive or declaratory relief.

124. The circuit court has jurisdiction to enjoin the public body from withholding public records and to order the production of any public records improperly withheld from the person seeking access.

125. The burden is on the PARK DISTRICT to establish that its refusal to permit public inspection or copying is in accordance with the provisions of this Act.

WHEREFORE, the Plaintiff respectfully requests an order compelling the PARK DISTRICT to

a). Produce the “minutes of all executive session meetings relating to the collection and/or expenditure of funds in the Developer’s Contribution Fund.”

b). Produce “all records relating to all survey(s) concerning the use of Park District facilities”,

c). Produce “the description, contents, and dates of all guest sign-in sheets generated in the course of Sycamore Park District Business,”

d). Award reasonable fees and costs of this proceeding.

Respectfully Submitted:

146 HOMEOWNERS AND DCDBA

By:________________________________

Michael P. Coghlan, Plaintiffs’ Attorney

CERTIFICATION

Under penalties as provided by law pursuant to Section 1-109 of the Illinois Code of Civil Procedure, the undersigned certifies that the statements set forth in the foregoing pleading, motion or other paper are true and correct, except as to matters therein stated to be on information and belief, and as to such matters, the undersigned certifies as aforesaid that he/she verily believes the same to be true.

DCBDA (Assignor)

By:________________________________

Its President

Michael P. Coghlan

ARDC# 6185266

SMITH & TUCKER

1958 Aberdeen Court

Sycamore, IL 60115

815-787-7033x25

Fax 815-748-1020

CERTIFICATE OF ATTORNEY

I, Michael P. Coghlan, certify that I have read the above pleading, motion or other paper; that to the best of my knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, in accordance with Supreme Court Rule 137.

_______________________________

Michael P. Coghlan

ARDC# 6185266

SMITH & TUCKER

1958 Aberdeen Court

Sycamore, IL 60115

815-787-7033x25

Fax 815-748-1020