NO. 5-95-0655
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
THE PEOPLE ex rel. EARL L. VUAGNIAUX ) Appeal from the
and ALICE G. VUAGNIAUX, ) Circuit Court of
) Madison County.
Plaintiffs-Appellants, )
)
v. ) No. 94-MR-325
CITY OF EDWARDSVILLE, A Municipal )
Corporation of the State of Illinois, ) Honorable
) David Herndon,
Defendant-Appellee. ) Judge, presiding.
_________________________________________________________________
JUSTICE MAAG delivered the opinion of the court:
The plaintiffs, the People of the State of Illinois ex rel.
Earl L. Vuagniaux and Alice G. Vuagniaux, appeal the trial court's
grant of summary judgment in favor of defendant, the City of
Edwardsville (City).
The relevant facts are as follows. In 1968, the City
purchased a parking lot located at Second and St. Louis Streets.
This parking lot was used for public parking. In December of 1987,
the City's planning department prepared a tax-increment-financing
(TIF) redevelopment plan. This plan was revised on January 20,
1988. The City then adopted ordinance No. 4162-3-88 approving the
central-area tax-increment redevelopment plan and redevelopment
project on March 15, 1988. It is undisputed that the subject
parking lot is located within the physical boundaries of the TIF
district and is within the redevelopment project area. In May of
1988, ordinance No. 4177-5-88 was passed, authorizing the City's
issuance of central-area redevelopment-project-area general
obligation bonds in the principal amount of $1,400,000 for the
purpose of funding the tax-increment redevelopment plan and project
approved by City ordinance No. 4162-3-88 and providing for a tax
levy for the payment of said bonds. In July 1988, the redevelop-
ment plan was amended. On July 28, 1988, Garrett A. Balke, Inc.
(Korte-Balke), sent a letter to Nina Baird, the City's clerk,
stating its development concept. Within its development concept,
Korte-Balke stated that it intended to relocate Earl Vuagniaux "to
a new building of approximately 10,000 square feet in the City
Parking Lot at Second and St. Louis Streets." The letter also
requested the City to "[v]acate Second Street between St. Louis and
Vandalia [and] [c]onvey to [Korte-Balke] fee simple title to Lot 55
(the City parking lot) for $1.00 and other considerations." The
City then passed ordinance No. 4197-8-88 on August 16, 1988,
authorizing the transfer of certain real property pursuant to the
Tax Increment Allocation Redevelopment Act (Ill. Rev. Stat. 1987,
ch. 24, par. 11-74.4-1 et seq. (now see 65 ILCS 5/11-74.4-1 et seq.
(West 1994))). This ordinance stated as follows:
"Section II: Prior to the execution and delivery of
title instruments, the City, District and the developers
shall execute an agreement setting forth the terms upon
which the City and the Tax Increment Financing District
shall transfer the real estate to the developers and the
developer's agreement for development and purchase of the
parcels. Said terms shall include, but not be limited
to:
A. Purchase price: One Dollar ($1.00) per parcel.
***
C. Developers shall, upon the Second and St. Louis
Street parking lot site, construct at least 10,000 square
feet of office, retail or compatible general commercial
space within two years of said parcel being transferred
to developer."
The City then solicited and received proposals for the parking lot
in 1989. One of those proposals was submitted by the Vuagniauxes.
In August of 1989, a report on the TIF district was prepared
by the City's TIF committee. This report discussed the fact that
there had been considerable debate over parking in the downtown
area and the fact that the new county administration building was
going to worsen the problem. The report stated, inter alia, as
follows:
"L. Conversion of Free Parking
In order to enhance district revenue, the City
should consider temporarily transferring title to the
Second and St. Louis Street parking lot to the district.
The lot could then be upgraded and converted into a
leased parking lot. I believe that the market downtown
would support $25-50 per month fees for each spot."
On October 12, 1989, Terry Smith, Edwardsville's City Planner,
prepared a letter to the City's finance committee regarding the
"TIF Update" and stated as follows:
"The district should consider the disposal of the parking
lot at St. Louis and Second Street. At the present time
no official action has been taken ***. I would like to
recommend that serious consideration be given to the
development of this city owned lot. I am making this
recommendation in light of the recent notification of the
cancellation of the Michael's Chevrolet redevelopment
project. I believe that the development of this lot
would greatly enhance the overall financial stability of
the TIF district. I believe that the potential financial
gains through the development of this lot far exceeds
[sic] the effects of the loss of 24 public parking
spaces. The Council should consider the possibility of
making a counteroffer to the offer made by the Vaugniaux
[sic]/Winfield Partnership. It would be interesting to
have their reaction to the city's offer of the City
Parking lot *** [at] Second Street for free if they would
construct [a] 15,400 square foot building. If this type
of an arrangement could be made[,] *** the district would
profit by obtaining a greatly increased tax increment as
well as the elimination of the existing Vaugniaux [sic]
building. [The] Vaugniaux[sic]/Winfield Partnership
would benefit by obtaining the property at no cost."
Hence, a review of the record shows that the parking lot was
a part of the "redevelopment project area" and the "redevelopment
plan." See 65 ILCS 5/11-74.4-3(n),(p) (West 1992). The record
also shows, however, that the parking lot never became a "rede-
velopment project." See 65 ILCS 5/11-74.4-3(o) (West 1992). On
July 19, 1994, the City passed ordinance No. 4735-7-94. This
ordinance authorized a lease of the aforementioned parking lot to
Florists' Mutual, one of Edwardsville's largest employers. The
ordinance states that the lease of the parking lot to Florists'
Mutual would economically benefit the City's TIF district.
According to the ordinance, all of the income generated by the
lease of the parking lot was to be deposited into the City's motor
fuel tax fund.
On July 21, 1994, the plaintiffs filed a petition for leave to
file a complaint in quo warranto, alleging that the City failed to
comply with certain statutes of the State of Illinois when it
leased the aforementioned City parking lot, located 52 feet from
the Vuagniauxes' property, to tenants of Mark Twain Plaza, a TIF
development. The City filed an answer and motion to dismiss,
raising the Vuagniauxes' lack of standing to file a quo warranto
action. On July 29, 1994, the court determined that plaintiffs had
standing, and the court granted plaintiffs leave to file a
complaint in quo warranto and denied the City's motion, made under
section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615
(West 1992)), to dismiss plaintiffs' complaint due to lack of
standing. On September 7, 1994, the plaintiffs filed a motion for
leave to file a first amended complaint to add an additional count
for injunctive relief. The next day, the court granted this
motion. The City filed its answer on December 12, 1994, and its
motion for summary judgment on December 15, 1994. In support of
its motion, the City filed the affidavits of John Brancaglione, an
urban planner employed by a private firm of architects and
planners, and Gary Niebur, the City's mayor. On March 23, 1995,
the plaintiffs filed a motion for summary judgment. That same day,
the plaintiffs also filed a motion to strike the City's two
supporting affidavits and deny the City's motion for summary
judgment. The court entered an order on May 30, 1995, granting the
City's motion for summary judgment, denying plaintiffs' motion to
strike the affidavits filed by the City, and denying plaintiffs'
motion for summary judgment. In its order, the court stated,
"Nothing in the TIF statutes prohibits the City['s] *** leasing of
the subject parking lot *** [and] [n]othing in Section [11-]76-1
[of the Illinois Municipal Code (65 ILCS 5/11-76-1 (West 1992))]
prohibits the City['s] *** leasing of the subject parking lot."
The plaintiffs filed a motion to reconsider, which was denied on
July 31, 1995. Plaintiffs then filed a notice of appeal on August
30, 1995.
The plaintiffs claim that the City's two affidavits, filed in
support of its motion for summary judgment, violated Supreme Court
Rule 191 (145 Ill. 2d R. 191), and that they should have been
stricken. Pursuant to Supreme Court Rule 191(a) (145 Ill. 2d R.
191(a)):
"Affidavits in support of *** a motion for summary
judgment *** shall be made on the personal knowledge of
the affiants; shall set forth with particularity the
facts upon which the claim, counterclaim, or defense is
based; shall have attached thereto sworn or certified
copies of all papers upon which the affiant relies; shall
not consist of conclusions but of facts admissible in
evidence; and shall affirmatively show that the affiant,
if sworn as a witness, can testify competently thereto."
When reviewing a summary judgment order, the reviewing court
should construe the pleadings, depositions, admissions, and
affidavits in support of the motion strictly against the moving
party and liberally in favor of the opponent. Rinchich v. Village
of Bridgeview, 235 Ill. App. 3d 614, 627, 601 N.E.2d 1202, 1210-11
(1992). Because summary judgment is a drastic means of disposing
of litigation, it should be allowed only when the right of the
moving party is clear and free from doubt. Rinchich, 235 Ill. App.
3d at 627, 601 N.E.2d at 1211.
In a summary judgment proceeding, the purpose of affidavits is
to show whether the issues raised are genuine and whether each
party has competent evidence to support his position. Wiszowaty v.
Baumgard, 257 Ill. App. 3d 812, 819, 629 N.E.2d 624, 630 (1994).
An affidavit should meet the same requirements as competent
testimony since it actually substitutes for trial testimony.
Wiszowaty, 257 Ill. App. 3d at 819, 629 N.E.2d at 630. Hence, any
evidence that would not be admissible at trial cannot be considered
in a summary judgment proceeding. Wiszowaty, 257 Ill. App. 3d at
819, 629 N.E.2d at 630.
We have reviewed both affidavits, and although we find several
statements in Mr. Brancaglione's affidavit and one statement in Mr.
Niebur's affidavit to be improper for making legal conclusions, we
decline to strike the affidavits in their entirety. Where improper
material appears in an affidavit, only the tainted portion should
be excised, as opposed to the entire affidavit. Wiszowaty, 257
Ill. App. 3d at 820, 629 N.E.2d at 631. Therefore, we can only
consider those facts which were properly included in the affida-
vits. See Wiszowaty, 257 Ill. App. 3d at 820, 629 N.E.2d at 631.
The plaintiffs claim that the City violated sections 11-74.4-
3(n), 11-74.4-4(c), 11-74.4-5(c), and 11-74.4-6(a) of the Tax
Increment Allocation Redevelopment Act (the Act) (65 ILCS 5/11-
74.4-3(n), 11-74.4-4(c), 11-74.4-5(c), 11-74.4-6(a) (West 1992))
when it leased the aforementioned parking lot to Florists' Mutual.
More specifically, the plaintiffs argue that section 11-74.4-4(c)
of the Act mandates that the City notify the public and property
owners within the TIF district of any redevelopment plan or project
and give them the opportunity to bid on the use and/or development
of property located within the district. The City argues that even
if the property was proposed as part of the plan, if no additional
action was taken by the City to adopt a proposal for its develop-
ment as a redevelopment project, it was not necessary for it to
conduct the type of hearing required by the TIF statutes before
leasing it. We agree.
We have thoroughly examined the TIF statutes and find that the
leasing of the subject parking lot did not violate any of the
aforementioned TIF statutes.
The City claims that it was granted the power to enter into
the lease with Florists' Mutual pursuant to section 11-76-1 of the
Illinois Municipal Code. 65 ILCS 5/11-76-1 (West 1992). Section
11-76-1 states that "[a]ny city or village *** which acquires or
holds any real estate for any purpose whatsoever *** has the power
to lease the real estate for any term not exceeding 99 years ***."
65 ILCS 5/11-76-1 (West 1992). Section 11-76-2 (65 ILCS 5/11-76-2
(West 1992)) states, however:
"Before the corporate authorities of the city ***
make a lease of real estate for a term in excess of 20
years, they shall give notice of intent to adopt such an
ordinance. The notice must be published at lease once in
a daily or weekly newspaper published in the city ***,
and if there is none, then in some paper published in the
county in which the city *** is located. The publication
must be not less than 15 nor more than 30 days before the
date on which it is proposed to adopt such an ordinance.
*** Nothing in this Section prevents the corporate
authorities from determining to sell or lease such
property to the highest responsible bidder. The corpo-
rate authorities may provide by ordinance for the
procedure to be followed in securing bids for the sale or
lease of the *** property." 65 ILCS 5/11-76-2 (West
1992).
The City argues that "[sections 11-76-1 and 11-76-2] are contra-
dictory in that one requires a bidding procedure and one makes no
mention of it." The City claims that because the provisions are
contradictory, it should not be required to comply with both. The
City argues that only section 11-76-1 applies to this case. We
disagree.
Statutes in pari materia should be construed together. People
ex rel. Bell v. New York Central R.R. Co., 10 Ill. 2d 612, 621, 141
N.E.2d 38, 43 (1957). This is especially true where the statutes
were passed the same day and are to take effect the same day.
People ex rel. Funk v. Hagist, 401 Ill. 536, 541, 82 N.E.2d 621,
623 (1948). Statutes adopted at the same session of the General
Assembly ordinarily should be so construed, if possible, as to
harmonize (Funk, 401 Ill. at 541, 82 N.E.2d at 623) and to give
force and effect to the provisions of each. People ex rel. Little
v. Peoria & Eastern Ry. Co., 383 Ill. 79, 88, 48 N.E.2d 518, 523
(1943). Two statutes that are passed at the same session of the
General Assembly should not be construed as being inconsistent if
it is possible to construe them otherwise. Little, 383 Ill. at 88,
48 N.E.2d at 523.
Sections 11-76-1 and 11-76-2 were both passed at the same
session of the General Assembly on the same day and deal with the
same matter. These statutes can be harmonized simply by reading
them together, that is, the City may enter into a lease for a term
not exceeding 99 years; however, if the duration of the lease is in
excess of 20 years, the corporate authorities shall give notice of
its intent to adopt such an ordinance. As section 11-76-2 states,
the notice must be "published at least once in a *** newspaper."
(Emphasis added.) 65 ILCS 5/11-76-2 (West 1992). We see nothing
inconsistent between these statutes when we give force and effect
to the provisions of each of them regarding the duration of a lease
and the requirements of publishing notice in a newspaper depending
upon the duration of the lease.
On July 19, 1994, the City passed ordinance No. 4735-7-94.
This ordinance stated that the City would enter into a lease for a
period of less than 99 years with Florists' Mutual on the terms and
conditions as provided in the lease attached thereto as exhibit A.
The parking space lease agreement, dated that same day, states:
"2. The lease term hereof shall be for a period of
five (5) years *** ending on the last day of August, 1999
***. *** LESSEE shall have the option, in its sole
discretion, to extend the term of this Lease for any
period that it leases office space in Mark Twain Plaza
***. *** In the event LESSEE purchases office space in
Mark Twain Plaza ***, LESSEE may extend the term of this
Lease by so notifying LESSOR in writing and this Lease
shall thereafter continue until terminated on thirty (30)
days['] advance written notice by LESSEE to LESSOR, and
in such case LESSOR may not terminate this Lease except
upon a material breach of the terms hereof by LESSEE.
3. The lease payment (rent) during the term hereof,
including any extension or renewal, shall be five dollars
($5.00) per space totaling One Hundred Ten Dollars
($110.00) per month for 22 spaces.
* * *
12. This Lease shall be binding upon and shall
inure to the benefit of the parties hereto and their
respective successors and assigns."
Pursuant to section 2-1005 of the Code of Civil Procedure (735
ILCS 5/2-1005 (West 1992)), the sole function of the court
reviewing the trial court's entry of summary judgment is to
determine whether the lower court correctly ruled that no genuine
issue of fact had been raised and, if none was raised, whether
judgment was correctly entered as a matter of law. Maxton v.
Garegnani, 255 Ill. App. 3d 291, 294, 627 N.E.2d 723, 726 (1994).
We believe that the trial court erred in granting summary judgment
in favor of the City in the instant case because the question of
the duration of the lease is a mixed question of law and fact that
was never resolved by the trial court. It could be argued that the
lease was a five-year lease or that it was a lease not exceeding 99
years, since only the lessee can request renewal for up to 99
years. Even the City's brief states, "in examining the terms of
the lease no specific period of time is provided." If the court
determines after consideration of the evidence and the terms of the
lease that the lease is a 99-year lease, then the City has violated
section 11-76-2 by not giving notice of its intent to adopt such an
ordinance and not complying with the remaining requirements of that
section. If the court determines that the lease is a five-year
lease, then the City appears to have complied with both sections
11-76-1 and 11-76-2.
Since a mixed question of law and fact remains, namely, the
duration of the lease between the City and Florists' Mutual, we
must reverse the trial court's order granting summary judgment in
favor of the City and remand for further proceedings consistent
with this opinion.
Finally, we note that the City questions the Vuagniauxes'
standing to file a quo warranto action. The City apparently made
this argument in the event that we reverse the trial court's grant
of summary judgment in its favor. As we previously stated, on July
29, 1994, the court determined that plaintiffs had standing,
granted plaintiffs' leave to file a complaint in quo warranto, and
denied the defendant's section 2-615 motion to dismiss (735 ILCS
5/2-615 (West 1992)). The record contains no notice of cross-
appeal as required by Supreme Court Rule 303 (155 Ill. 2d R. 303).
Ordinarily, when an appellee does not file a cross-appeal, the
reviewing court will be confined to the issues presented by the
appellant and will not consider issues presented by the appellee,
except to the extent that they are related to the appellant's
issues. Simmons v. Union Electric Co., 121 Ill. App. 3d 743, 760-
61, 460 N.E.2d 28, 40 (1984), aff'd, 140 Ill. 2d 444, 473 N.E.2d
946 (1984). This rule, however, does not prevent us from consider-
ing the City's assignment of error against the plaintiff. We
should be mindful that the City was an entirely successful litigant
in the court below, and its claim that the Vuagniauxes do not have
standing does not seek the reversal or modification of the judgment
as entered in the trial court. This claim is akin to an alternate
argument, directed against a possible modification of the judgment
by this court, which is precisely what we have done. "We do not
see that any purpose would be served in requiring an appellee to
file a cross-appeal in order to preserve conditional arguments
against action which may be ordered by this court." Simmons, 121
Ill. App. 3d at 761, 460 N.E.2d at 40. Thus, the City's standing
argument is properly before us.
The proper standard in determining whether a party has
standing is whether the trial court abused its discretion. Amtech
Systems Corp. v. Illinois State Toll Highway Authority, 264 Ill.
App. 3d 1095, 1101, 637 N.E.2d 619, 623 (1994). "Although standing
is a component of justiciability [citation], it is not jurisdic-
tional. Rather, the lack of standing is an affirmative defense."
Contract Development Corp. v. Beck, 255 Ill. App. 3d 660, 664, 627
N.E.2d 760, 764 (1994); see Greer v. Illinois Housing Development
Authority, 122 Ill. 2d 462, 494, 524 N.E.2d 561, 582 (1988). It is
the defendant's burden to show that the plaintiffs do not have
standing to sue. The issue is not properly presented in a section
2-615 motion to dismiss because this motion tests whether the com-
plaint is sufficient to state a claim for which relief might be
granted. See Noyola v. Board of Education, 227 Ill. App. 3d 429,
433, 592 N.E.2d 165, 168 (1992).
We need not decide if the defendant waived this issue by
failing to properly raise it as an affirmative defense because the
outcome of our decision remains the same--the plaintiffs had
standing to file a quo warranto action for the following reasons.
In order to maintain an action in quo warranto, the Vuag-
niauxes had to demonstrate that they had a distinct personal
interest that was not common to the general public. See People v.
Wood, 411 Ill. 514, 522, 104 N.E. 2d 800, 804 (1952). Further, we
recognize that mere allegations of a status as a nearby resident of
the subject property and as a taxpayer are insufficient to invoke
the trial court's discretion. See People ex rel. Van Cleave v.
Village of Seneca, 165 Ill. App. 3d 410, 412, 519 N.E.2d 63, 65
(1988). The quo warranto complaint alleged the following distinct
personal interests of the Vuagniauxes:
"2. *** [T]he Relators were and still are ***
owners of fee simple title to commercial real estate in
the City, described as *** Lot Numbered *** 220 *** in
the *** City ***.
7. That the City has executed a Parking Space Lease
Agreement, *** and that the said Lease is of a certain
public parking lot, *** situated fifty-two feet West of
the Relators' hereinabove described real estate ***.
8. That public parking is provided for the
Relators' hereinabove described real estate by the public
parking lot the City proposes to lease for up to ninety-
nine years; and that the termination of the public's use
of the said public parking lot for any period of time
directly and adversely affects the Relators in a way that
is not shared in common with the public at large in that
it deprives the Relators of the benefit of a convenient
off street public parking lot ***." (Emphasis added.)
Based upon the foregoing allegations in the Vuagniauxes' com-
plaint, we cannot find that the trial court abused its discretion
in finding that the Vuagniauxes had standing to file the quo
warranto complaint. The facts that the Vuagniauxes own commercial
real estate located 52 feet from the said public parking lot and
that they have alleged that the leasing of this public parking lot
has deprived them of convenient off-street parking show that they
have a personal interest sufficiently distinct from the general
public's interest.
For all of the foregoing reasons, we affirm the trial court's
order granting plaintiffs leave to file a complaint in quo warran-
to, we reverse the trial court's order granting summary judgment in
favor of the City, and we remand for further proceedings.
Affirmed in part and reversed in part; cause remanded.
HOPKINS, P.J., and GOLDENHERSH, J., concur.
___________________________________________________________________________
___________________________________________________________________________
Opinion Filed:
___________________________________________________________________________
Justices: Honorable Gordon E. Maag, J.
Honorable Terrence J. Hopkins, P.J., and
Honorable Richard P. Goldenhersh, J.,
Concur
___________________________________________________________________________
Attorney Earl L. Vuagniaux, Earl L. Vuagniaux, A Professional
for Corporation, 118 St. Louis Street, P.O. Drawer 446,
Appellant Edwardsville, IL 62025-0446
___________________________________________________________________________
Attorneys Debra J. Meadows, Reed, Armstrong, Gorman, Coffey, Gilbert &
for Mudge, P.C., 125 N. Buchanan, P.O. Box 247, Edwardsville, IL
Appellee 62025
___________________________________________________________________________