Board of Education of Sycamore Community Unit School District No. 427 v. Silverthorne Development Co.

2023 IL App (2d) 220170-UNo. 2-22-0170
Order filed July 25, 2023
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
BOARD OF EDUCATION OF SYCAMORE ) Appeal from the Circuit Court
COMMUNITY UNIT SCHOOL DISTRICT ) of De Kalb County.
NO. 427, )
)
Plaintiff-Appellee, )
)
v. ) No. 15-L-105
)
SILVERTHORNE DEVELOPMENT CO., ) Honorable
) Bradley J. Waller,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court.
Justices Hutchinson and Schostok concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in granting plaintiff school district partial summary
judgment on: (1) an ordinance violation count, where it alleged that defendant
developer misrepresented the number of bedrooms in its properties in order to pay
lower impact fees; and (2) on a counterclaim alleging a municipal plaintiff
improperly used impact fees. Affirmed.
¶2 Plaintiff, the Board of Education of Sycamore Community Unit School District No. 427
(District), sued defendant, Silverthorne Development Co., alleging that defendant (1) violated an
ordinance requiring it, as a condition of approval of a plat of subdivision or planned unit
development, to pay impact fees (also known as contribution or development fees) based on the
2023 IL App (2d) 220170-Unumber of bedrooms in properties it built (count I), where defendant allegedly misrepresented the
number of bedrooms in its properties; and (2) submitted fraudulent building permit applications
and blueprints (count II). Defendant, in a fourth amended counterclaim, sought a declaratory
judgment that the District used the fees for improper purposes. The District moved for partial
summary judgment, and the trial court granted the District partial summary judgment on count I
of its complaint and on the fourth amended counterclaim and found that there was no just reason
to delay enforcement or appeal of its ruling. Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). Defendant
appeals. We affirm.
¶3 I. BACKGROUND
¶4 A. Ordinances
¶5 Section 6.11.3 of the City of Sycamore’s Unified Development Ordinance (Unified
Development Ordinance) (City of Sycamore Unified Development Ordinance § 6.11.3 (adopted
May 1, 2005)), effective as of October 1, 2005, addressed cash contributions in lieu of land for
school sites as a condition of approval of a final plat of subdivision or planned unit development.
The ordinance, which is the city’s zoning code, provided:
“The cash contributions in lieu of school sites shall be held in trust by the [District][.] The
funds collected by the [District] pursuant to this ordinance shall be used only for (1) the
purchase of real estate or structures for the use as schools or educational facilities for
students in Sycamore, Illinois[,] and the [District]; (2) the construction of new buildings
for use as schools or educational facilities for students in Sycamore, Illinois[,] and the
[District]; or (3) the modification of existing school buildings or educational facilities for
-2-
2023 IL App (2d) 220170-Ustudents in Sycamore, Illinois[,] and the [District]. No other use shall be made of the funds
so collected.” (Emphases added.) Id. § 6.11.3(I)(B)(2)(a). 1
The estimated cash contributions were “determined at the time the final plat” was approved by the
city, and, “prior to the issuance of any building permit,” any developer or subdivider paid the
District the impact fee attributable to the land relating to the building permit. Id. §
6.11.3(I)(B)(2)(b). Payments were made directly to the District, which, in turn, issued a receipt
and release of lien as evidence of payment. Id. § 6.11.3(I)(D)(b). (Between 2009 and 2015, the
District received impact fees directly from developers and home builders that built new homes in
the District.) A building permit was not issued unless a copy of the receipt was submitted with the
application. Id. The Unified Development Ordinance further provided that “[i]ssuance of the
building permit without such payment shall not be construed as a waiver.” Id.
¶6 The impact fees were based on the number of bedrooms in the property. For example, for
a detached single-family home, the fees were: $817 for a two-bedroom home; $3,269 for a three-
bedroom home; $5,560 for a four-bedroom home; and $4,310 for a five-bedroom home. The
ordinance defined a “bedroom” as “any room designed, intended, or used principally for sleeping
purposes.” Id. § 1.3.3.
¶7 Section 9-4-1 of the city’s municipal code, which is its building code, regulates “the
conditions and maintenance of all property, buildings, and structures; by providing the standards
for supplied utilities and facilities and other physical things and conditions essential to ensure that
1
The school contributions provision of the Unified Development Ordinance amended
section 10-3-4 of the city’s municipal code. Id. § 6.11.3. Title 10 of the city’s code contained
general subdivision regulations.
-3-
2023 IL App (2d) 220170-Ustructures are safe, sanitary and fit for occupation and use; and *** providing for the issuance of
permits and collection of fees therefore[.]” Sycamore City Code § 9-4-1 (2015). 2
¶8 The International Residential Code for One- and Two-Family Dwellings – 2015 Edition,
which was part of the municipal code and one of the codes adopted by the city at the time relevant
to this appeal, contained the following provisions. First, in section R310, it addressed emergency
escape and rescue openings:
“Basements, habitable attics and every sleeping room shall have not less than one operable
emergency escape and rescue opening. Where basements contain one or more sleeping
rooms, an emergency escape and rescue opening shall be required in each sleeping room.
Emergency escape and rescue openings shall open directly into a public way, or to a yard
or court that opens to a public way.” (Emphases added.) International Residential Code,
§ R310.1 (2015).
¶9 Second, section R314.3 addressed the location of smoke alarms and provided that “smoke
alarms shall be installed in *** each sleeping room” and “[o]utside each separate sleeping area in
the immediate vicinity of the bedrooms.” (Emphases added.) Id. § R314.3. Finally, section 315
addressed carbon monoxide alarms and provided that such alarms “in dwelling units shall be
installed outside of each separate sleeping area in the immediate vicinity of the bedrooms.”
(Emphases added.) Id. § R315.3.
¶ 10 B. District’s Complaint
¶ 11 On October 7, 2015, the District sued defendant, asserting claims for an ordinance violation
(count I) and fraud (count II). The District alleged that, since at least 2012, defendant had
2
Title nine of the city’s municipal code is entitled “Building Regulations.”
-4-
2023 IL App (2d) 220170-Usubmitted building permit applications that misrepresented the number of bedrooms in some of its
residential properties to show fewer bedrooms than were actually built in each house in order to
pay smaller cash contributions. (The District listed 24 properties.) It noted that defendant’s
marketing materials demonstrated that the homes it sold were all at least three-bedroom, single-
family detached homes. Defendant’s misrepresentations, according to the District, deprived the
District of at least $66,649 in impact fees to which it was entitled.
¶ 12 Defendant denied the allegations, raised several affirmative defenses, and pleaded four
counterclaims. As relevant here, in its fourth amended counterclaim, defendant brought a
declaratory judgment action, seeking restitution and alleging that the District was depositing
impact fees (including fees received from defendant) into its master account and general fund (First
Midwest Bank account No. 513572). The account, defendant asserted, is used to fund the District’s
general operations, and the District impermissibly spent impact fees defendant and other
developers paid on general operations from its master fund. The fees were not segregated in an
account other than the master fund account. Further, defendant asserted that it paid the impact
fees “under protest.”
¶ 13 C. District’s Partial Summary Judgment Motion
¶ 14 On December 17, 2019, the District moved for partial summary judgment on count I
(ordinance violation) of its complaint and as to defendant’s third and fourth amended
counterclaims. 3 It alleged that defendant submitted building plans for 24 properties showing, for
the most part, that the homes contained two bedrooms, whereas they were sold as three- and four-
3
On July 26, 2017, the trial court dismissed defendant’s first and second amended
counterclaims.
-5-
2023 IL App (2d) 220170-Ubedroom homes. The District submitted affidavits from home purchasers addressing the number
of bedrooms in their properties. It also noted that it had served Illinois Supreme Court Rule 216
(eff. July 1, 2014) requests to admit, asking defendant to admit or deny that each property at issue
contained the number of bedrooms the District had alleged in its complaint. However, defendant
objected to the requests, asserting that they sought legal conclusions. Finally, the District noted
that it had obtained deposition testimony, affidavits, marketing documents, and appraisals that it
alleged confirmed the number of bedrooms for the properties at issue.
¶ 15 The District argued that the Unified Development Ordinance contained the relevant
definition of “bedroom,” which, it further asserted, defendant had admitted constituted a legal
determination. The District also took the position that the Unified Development Ordinance’s
definition was the same as the term’s commonly used and understood definition. It further asserted
that the undisputed facts showed that defendant itself listed and advertised its properties as
containing three or four bedrooms and that the affidavits showed that the homeowners and
appraisers confirmed the number of bedrooms as alleged in the District’s complaint. As to the
fourth amended counterclaim, the District asserted that the undisputed facts showed that it was not
required to deposit impact fees into a separate account and that it nevertheless used the fees in
accordance with the law.
¶ 16 In its response to the District’s partial summary judgment motion, defendant noted the
city’s building inspector’s deposition testimony that the presence of a closet was irrelevant to
whether a room was a bedroom and that a bedroom must qualify as a sleeping room under the
International Building Code. Defendant asserted that a sleeping room, per the building code,
required smoke detectors (both inside and just outside the room), an emergency egress window,
and a carbon monoxide detector. It noted that the city’s ordinance stated that only the zoning
-6-
2023 IL App (2d) 220170-Uadministrator can enforce the Unified Development Ordinance. Defendant also pointed to its
expert’s affidavit statements that the District’s accounting practices do not comply with applicable
accounting standards, the master fund where impact fees were being deposited carried a negative
balance, and there was no interest income on any impact fee deposits. Defendant also argued that
the District’s director of finance’s deposition testimony was contrary to her affidavit and reflected
that impact fees were accounted for in the education fund, which was not the fund listed in her
affidavit and does not “deal with” capital improvements.
¶ 17 D. Depositions and Affidavits
¶ 18 1. John Sauter
¶ 19 John Sauter, the city’s director of community development (formerly called the director of
building and engineering) since 2010, is also a certified residential building inspector and the
zoning administrator. Sauter testified that he oversees building inspections for the city and reports
to the city manager.
¶ 20 In 2010, the impact fee amount was determined at the initial stage when a developer such
as defendant submitted a permit application and indicated on the application the number of
bedrooms. That is, the fees were paid upon application. The information was sent to the city
clerk’s office, which is where monies were paid for the permit. If a builder changed a two-bedroom
house to a three-bedroom house, the city required the builder to pay the fee for a three-bedroom
house. It was “an accounting function” and not something in which Sauter was involved. There
was no procedure in place to change the number of bedrooms after the house was permitted.
¶ 21 When a permit application is received by the city, it also includes building plans and an
energy code certification. Sauter’s office reviews the material. If rooms are listed improperly,
Sauter’s office notifies the developer. Once a permit is issued, a home is inspected about 12 to 15
-7-
2023 IL App (2d) 220170-Utimes during the build. The final occupancy inspection concerns the final product and involves an
inspector going through every room in the house.
¶ 22 When asked for this definition of a “bedroom” in the scope of his role as building director,
Sauter replied that, under the International Residential Code, a “sleeping room” must have an
emergency egress window, a smoke detector in the room and just outside the room, and a carbon
monoxide detector. Sauter stated that he has never been given an answer as to what is a “bedroom”
for purposes of impact fees. He explained that he knows what the International Residential Code
requires. He believes that the District should supply him with that information, but it has not done
so.
¶ 23 Sauter acknowledged, however, that the building code could be different from the Unified
Development Ordinance in terms of defining a bedroom. “If someone were to say a bedroom
needs to have a closet or it can have an armoire and that serves as the closet, that’s not for me to
decide. That’s not a code issue or a code concern.” “From a code perspective, a closet has no
bearing on whether a room is a considered a sleeping room or not.” The building code does not
define “bedroom.”
¶ 24 Sauter informed the District that, in 2015, a builder applied for a permit for a two-bedroom
home and then, after final inspection, added a closet and called it a three-bedroom home. Sauter
was at the final inspection and observed that a closet was framed but not drywalled. He asked
Keith Almady, a former partner in defendant’s business, what was going on, and Almady replied
that the city charged more for three-bedrooms than it did for two-bedrooms, so the builder waited
until the city was “done” and the builder added a closet to make the room the bedroom.
¶ 25 Sauter further testified that, between the Multiple Listing Service (MLS), the code, and
Google, there is no single “clear-cut definition” of “bedroom.” Sauter offered to the city his
-8-
2023 IL App (2d) 220170-Usuggested definition: if a room has a closet and it does not have a smoke detector, an emergency
egress window, etc., then it should not be considered a bedroom. It can be a den or something
else. A closet alone, in his opinion, does not determine whether a room is a bedroom.
¶ 26 The District relies on the city’s building department for permit application determinations,
“inspection, adequacy, and then final occupancy.” Sauter reviewed blueprints submitted with
permit applications for several properties at issue in this case and noted that the properties were
permitted as two-bedroom homes along with a closet attached to the study/office. If a home has a
certificate of occupancy, that means the building was inspected and found to comply with the
building and zoning ordinances.
¶ 27 The definition of “bedroom,” in Sauter’s view, is precise from a code enforcement
perspective, but it is “unclear” regarding impact fees. The impact fee ordinance language for a
bedroom could be more precise. Sauter would not blame Jim Work, defendant’s owner and
president, if he did not have a fair understanding of what constituted a bedroom under the impact
fee ordinance. Sauter is unaware of the process for changing a two-bedroom home to a three-
bedroom home. On July 30, 2015, Sauter responded to an inquiry from defendant, stating that he
was unsure of the process for changing the number of bedrooms for purposes of impact fees. He
reached out to the District for an answer and never received one.
¶ 28 The labeling of a room as a study/office, for example, on a blueprint is irrelevant for
purposes of whether it is a sleeping room under the International Building Code or whether it is a
bedroom under the city ordinance.
¶ 29 Sauter further testified that the Unified Development Ordinance’s definition of bedroom
did not apply to the city’s impact fees. The Unified Development Ordinance is the zoning code
and contains regulations concerning setbacks and coverage. For safety compliance purposes, the
-9-
2023 IL App (2d) 220170-Ubuilding code’s requirements for smoke detectors and emergency egress windows apply instead.
The definition of “bedroom” in the Unified Development Ordinance is broader than the definition
of “sleeping room” in the International Building Code. If a developer submits a building permit
application and the number of bedrooms change, they are still required to comply with the impact
fee ordinance and pay the additional amount of bedrooms, regardless of whether the city approved
the initial building permit application.
¶ 30 In Sauter’s view, if a room does not qualify under the International Residential Code for a
sleeping room, it cannot be a bedroom. The definition of “bedroom” under the impact fee
ordinance does not provide much guidance as to what is a bedroom. However, there is nothing in
the Unified Development Ordinance that states it would be illegal for a bedroom to not meet the
sleeping room requirements.
¶ 31 2. Nicole Stuckert
¶ 32 Nicole Stuckert, a certified school business official, testified that she began working for
the District in 2009 as an accountant and became its director of finance (now called assistant
superintendent for business services) in 2013. In 2013, Stuckert reported impact fees to the school
board on a monthly basis, including the number of homes being built within the District and the
money collected. She also conducted an annual audit. Stuckert’s data came from her department’s
financial software, which was where deposits were recorded. The District’s accountant recorded
the deposits coming into the bank account. Developers paid each taxing body separately. Impact
fees were paid at the beginning of the build. (The city has since changed the process for collecting
impact fees. It now collects them once a home is completed.) The District was not involved in
determining how many bedrooms should be permitted. Stuckert was unaware who was
responsible.
- 10 -
2023 IL App (2d) 220170-U¶ 33 Stuckert is unaware of the definition of a bedroom as required by the MLS or the Sycamore
ordinance. She is also unaware how a developer could change a two-bedroom permitted house to
a three-bedroom permitted house. The District would not be involved in making that change.
There was no corroboration by anyone with the District to determine whether the bedrooms on a
permit stub/payment voucher were consistent with the actual house being built.
¶ 34 The District’s complaint was brought about after Stuckert’s staff noticed that one builder
was consistently representing that it was building two-bedroom homes. The District reached out
to the city and asked for “final blueprints” to determine the final number of bedrooms when final
occupancy paperwork was issued. During this process, the District discovered that there was a
discrepancy in the number of bedrooms. Stuckert determines the number of bedrooms in a
blueprint by the presence of closets.
¶ 35 In addition to blueprints, Stuckert’s office reviewed MLS listings on a realtor’s website or
defendant’s website. In defendant’s case, closets were added after the initial blueprints were
submitted. When asked if the city ordinance requires a room to have a closet in order to be a
bedroom, Stuckert replied that it does not, but “common sense” requires it.
¶ 36 Turning to accounting, Stuckert testified that the District has several bank accounts,
including the master fund, money market fund, a payroll account, student activity checking
account, and food service checking account. Impact fees are deposited into the master fund at First
Midwest bank. The master fund is used for operating purposes to pay District bills. Money is
transferred from the master fund to other accounts as needed.
¶ 37 In her affidavit, Stuckert averred that impact fees were accounted for in the District’s
operations and maintenance fund (Fund 20). She also noted that school districts are required to
use fund accounting to account for various revenue sources that can be used only for specific
- 11 -
2023 IL App (2d) 220170-Ustatutory purposes, and the procedures account for multiple State education board funds, all under
a single bank account; there is no statutory requirement to maintain a separate bank account for
each fund. She also averred that, in the last 10 years, the District had used impact fees only for
two projects: modification of Sycamore Middle School 4 during fiscal year 2012 and the purchase
of real estate adjacent to the school in fiscal year 2015.
¶ 38 At her deposition, Stuckert explained that school districts have nine funds (i.e., accounting
concepts, not bank accounts) that contain restricted monies that can be spent on only certain items.
These funds consist of the education fund, operations and maintenance fund, debt service fund,
transportation fund, retirement fund, capital outlay fund, working cash, tort fund, and life safety
fund. In the case of impact fees, a cash deposit appears as revenue in the fund. Under the
operations and maintenance fund (Fund 20), there is an account called impact fees for revenue,
and all cash deposits appear in that account. The District’s financial software and accounts listed
in its general ledger trace impact fee funds versus property tax dollars being deposited into a
revenue account. The software prevents the money from being transferred to an unrelated purpose.
Every month, the District runs a bank reconciliation (i.e., reconciles cash and investments to its
general ledger) that shows the money it has and what is restricted. Once an impact fee is deposited,
the account restricts that money so that it cannot be spent out of the master fund, and the District,
through a third party, conducts an audit every year to determine how much money is in the account
so that money does not get spent on other items.
4
Sycamore Middle School is the only school in the District and serves all students that live
in the District.
- 12 -
2023 IL App (2d) 220170-U¶ 39 The District is not required to have a separate bank account for impact fees. Pursuant to
the city’s ordinance, Stuckert conducts an impact fee audit in January. As an additional accounting
method, the District prepares a spreadsheet listing the builder, subdivision, and impact fee total.
¶ 40 The District uses tax anticipation warrants to make payroll, which is a form of short-term
borrowing. Schools receive tax payments in June and September, and the warrants address the
cash flow issue. That is, districts borrow money in the short-term to pay their operating costs.
¶ 41 The educational fund does not deal with capital improvements. Its sources of revenue are
the tax levy, instructional fees, lunch fees, miscellaneous revenue, and corporate personal
replacement tax. The District must follow GAAP practices.
¶ 42 Stuckert reviewed an exhibit (No. 15) (not moved into evidence) of a fiscal year 2014
budget prepared by Mr. Glowiak, her predecessor, and was asked why $230,000 in impact fees
were listed under the education fund and nothing was listed in the operations and maintenance
fund. She replied that she did not know why this was the case because she did not prepare the
budget, although she submitted it (because Glowiak left). She became responsible for budgets
beginning in fiscal year 2015.
¶ 43 Reviewing an exhibit (also not moved into evidence) of a fiscal year 2019 budget that she
prepared (a year not at issue in this case), Stuckert testified that it showed impact fees from
municipal or county governments (code 1930, the code for development contribution fees) under
the educational fund and not the operations and maintenance fund. The impact fees are listed
under the education fund. This could have been a mistake, she stated, but does not indicate that
they were actually used for education fund purposes. Nor would it indicate that impact fees were
used because of any short-term cash shortfall. The tax warrants were a short-term loan because
funds in the account are for restricted purposes, such as for impact fees.
- 13 -
2023 IL App (2d) 220170-U¶ 44 At the time relevant to this case, defendant was the only developer in the District that
routinely submitted two-bedroom impact fee payment vouchers. The District calculated that
defendant owed it $69,101 in impact fees.
¶ 45 The city’s ordinance, Stuckert testified, does not require that impact fees be kept in any
specific account. It requires an annual audit and that they be used only for renovation of existing
buildings, purchase of real estate, and new construction. The District used impact fees for only
these purposes.
¶ 46 After her deposition, in a second affidavit, Stuckert addressed the documents defendant’s
counsel asked her to review at her deposition, which had not previously been produced in discovery
and which counsel suggested showed that impact fees were being deposited into the District’s
education fund. Stuckert averred that, after her deposition, she reviewed the District’s records to
determine which funds the impact fees were deposited into and verified that they were
appropriately deposited into the operations and maintenance fund. She also noted that the
District’s account activity details report recorded the land cash payments from various developers,
including defendant, and identified the date of payment, the developer that made the payment, and
the amount thereof. She averred that these were the same payments (i.e., impact fees) at issue in
this case, and she attached a copy of the reports for the periods July 2012 through June 16, 2016,
along with transfer taxes from the city quarterly payments. Next, Stuckert also noted that she
attached the District’s annual financial reports, which accounted for its revenues and expenses.
She noted that a section titled “Other Revenue from Local Sources” identified on line 96
“contributions and donations from private sources,” which was the same as “land cash payments”
set forth in the account activity details report, were the impact fees that developers were required
to pay the District under the city’s ordinance. The exhibit, she stated, reflected that the
- 14 -
2023 IL App (2d) 220170-Ucontributions and donations from private sources were deposited into the District’s operations and
maintenance fund (and these deposits were also reflected in the District’s comprehensive annual
financial reports posted on its website and attached). Another entry, on line 97 and labeled “impact
fees from municipal or county governments,” was the same total of all transfer taxes from the city
as set forth in the second exhibit, were not the payments from developers, and were deposited into
the District’s education fund.
¶ 47 3. Nancy Edwards
¶ 48 Nancy Edwards was the exclusive real estate agent for defendant in 2013 and 2014.
Afterwards, her firm “decided to part ways” with defendant. Edwards testified that Work was very
difficult to work with and very demanding. According to Edwards, there were issues and corners
were being cut, i.e., workmanship on the homes.
¶ 49 Edwards had also worked with Work in a development in Cortland and, in her opinion, he
was “not a man of his word.” Under that agreement, Edwards was to receive money for every
home sold but that never happened due to issues with the limitations of the sewage system.
Edwards terminated her relationship with Work.
¶ 50 Edwards believes that Work intentionally misrepresented the number of bedrooms to try
to pay lower impact fees. Work, according to Edwards, sells a lot of homes in Sycamore.
¶ 51 Edwards testified that the MLS definition of a bedroom is a room with a closet and a
privacy door; also, the room must be above grade and have a window. Around 2013 or 2014,
Work stated that he could sell for a lower price than other builders by building a three-bedroom
home for less and then build the closets after the closing. He would also add a door.
¶ 52 Edwards is unaware how the city defines a bedroom for permitting purposes. While
working with defendant, Work sent Edwards floor plans, and she completed the MLS listing forms.
- 15 -
2023 IL App (2d) 220170-UThe listings were based on the information, including the number of bedrooms, that defendant
provided. Edwards’ definition of a bedroom is based on how it is designed, and she received the
designs from defendant.
¶ 53 Edwards also reviewed defendant’s marking materials. She was not aware of any two-
bedroom homes that she ever listed for defendant or that defendant built. Two-bedroom homes in
the Sycamore region are not common.
¶ 54 4. Jim Work
¶ 55 Jim Work testified that, initially, Keith Almady was his partner in the business. Work
denied ever misrepresenting the number of bedrooms when permitting homes in order to avoid
impact fees. Based on his discussions with Sauter, Work’s understanding of the definition of a
bedroom is the building code definition.
¶ 56 At some point, Work began writing on impact fee checks “paid under protest,” partly based
on the District’s use of the impact fees. According to Work, the District had informed him that
they did not have an accounting of where the money was spent. Work further testified that there
were a number of transfers of funds that he was concerned about because the District ran a deficit
and monies went from one fund to another.
¶ 57 Work disputed the amount claimed in the District’s complaint for impact fees, specifically,
the number of bedrooms. Addressing a home sold to the Knautz family, Work explained that the
home initially was permitted as a two-bedroom home, but the buyers asked defendant to change it
to a three-bedroom home. Defendant asked city personnel for guidance on required filings, and
the city replied that nothing needed to be done. No permits, additional blueprints, etc., were
required to be submitted.
- 16 -
2023 IL App (2d) 220170-U¶ 58 Edwards represented features in certain homes that were not actually present or entered
incorrect listing dates on listing agreements. Work denied having any conversations with Edwards
where he stated that defendant would add the closet after the building inspection to pay a lower
impact fee. Work fired Edwards, and she has a “bone to pick with” defendant. Edwards’ incentive,
according to Work, was to add more bedrooms in order to sell at a higher price. Work testified
that defendant already had buyers and focused on building what the buyers wanted.
¶ 59 Defendant, for example, applied for permits for two-bedroom homes that eventually
became four-bedroom homes, but did not pay any additional impact fee after the initial payment.
However, Work explained that there was no process to do that. “We had asked previously, and
we were told as long as it’s nonstructural, it doesn’t matter.” That is, so long as the wall is
nonstructural and no electrical was involved, no additional permit or blueprints were needed. To
Work’s knowledge, there is no process in the city to change the number of bedrooms for impact
fee purposes after the building process begins. Addressing the homeowner affidavits (addressed
below), Work stated that some homes have changed ownership several times since defendant built
the homes and that homeowners have made modifications to the homes to add rooms they consider
to be bedrooms or count basement bedrooms as bedrooms.
¶ 60 A closet, he explained, has no bearing on whether a room is a bedroom for impact fee
purposes. The building code requires a wired smoke detector, egress window of a certain size, etc.
Fair housing laws limit builders’ discussions with customers concerning family planning and
children.
¶ 61 Defendant used a customer portal system, whereby customers entered their desired home
features. Work testified that an office, loft, or playroom was referred to as a bedroom in the system.
- 17 -
2023 IL App (2d) 220170-U¶ 62 Work testified that he attempted to determine the definition of a bedroom and was told it
did not exist. The city, according to Work, stated that basement bedrooms do not qualify as a
bedroom for impact fee purposes.
¶ 63 After final inspection, a certificate of occupancy is issued. Defendant received a certificate
of occupancy for all lots upon which it built in the city. Further, upon final inspection, the city
never issued correction orders relating to how the bedrooms were permitted or built.
¶ 64 5. Ronda Perri
¶ 65 Ronda Perri lives at 2313 Celerity Drive and purchased her home from defendant in
November 2014. She testified that her home is the Revere ranch model, the plan for which had
two bedrooms and an office/den. As built, Perri’s home has three bedrooms on the main level and
an unfinished basement. Initially, Perri asked defendant to build a home with two bedrooms and
an office, but afterwards, informed defendant that she wanted a three-bedroom home. The only
change defendant made to the room to make it a bedroom was to add a closet.
¶ 66 6. Dominic Perri
¶ 67 Dominic Perri, Ronda’s husband, lived with Ronda at the Celerity Drive residence and later
married her. He testified that Ronda purchased the home, but Dominic was present for the home
search and meetings with defendant. They picked the Revere model, which had two bedrooms
and an office, but they made changes. When they moved in, the home had three bedrooms. The
Perris requested the change in the fall of 2014. The home was in the drywall stage. Dominic did
not use defendant’s portal to communicate his preferences.
¶ 68 7. Paul Anderson
¶ 69 Paul Anderson has lived at 418 Northgate Drive in Sycamore since October 2013. He
testified that his family purchased the home from defendant. They were looking for (and asked
- 18 -
2023 IL App (2d) 220170-Utheir realtor to show) either a three- or four-bedroom home. A listing from his realtor, created in
August 2013, lists the property as having three bedrooms. When Anderson signed the contract,
the home had already been built. Anderson did not use defendant’s portal. Anderson further
testified that the blueprint defendant used showed a study/office. When he bought his home, he
and his wife did not have children. They intended to sleep only in the master bedroom.
¶ 70 8. Homeowner Affidavits
¶ 71 In several affidavits, homeowners averred that the homes they purchased from defendant
were either three- or four-bedroom homes. For example, Matthew Arnold purchased 625 Brighton
Way from defendant and averred that the home was a four-bedroom home and that defendant
represented it in conversations as such. KC Brox averred that she owns 609 Brighton Way in
Sycamore and purchased the property from defendant. The property is a three-bedroom home and,
during conversations with defendant, defendant represented it as such.
¶ 72 9. Barry Grant’s Affidavit
¶ 73 Barry Grant, defendant’s expert, is a certified public accountant (CPA) also certified in
financial forensics. In his affidavit, he averred that he has been a CPA for over 42 years, and his
clients include schools, universities, cities, and states. Grant averred that he is familiar with
generally accepted accounting principles (GAAP) and government accounting standards. He
reviewed the documents and depositions in this case. As to Stuckert, Grant averred that she is not
a CPA and is not legally qualified to audit a third party or her own work. Her auditing of self-
prepared accounting records, he averred, violated accounting standards.
¶ 74 Grant disputed that the impact fees were accounted for in the District’s operations and
maintenance fund (Fund 20). Based on his review, the impact fees were not being placed in Fund
20, but were placed in other funds, such as the education fund. Grant noted Stuckert’s testimony
- 19 -
2023 IL App (2d) 220170-Uthat there is no statutory requirement to maintain separate bank accounts for each fund, and he
opined that the “simplest” fund accounting would be a separate bank account for the impact fees.
This would provide a “clean audit trail and would earn interest income that would offset the
banking fees.” Instead, he noted, “the funds appear to be an interest free loan to the fund holding
the money.” Grant took issue with Stuckert’s assertion that the funds were only used for the
purposes set forth in the city’s ordinance, stating that this was “difficult to verify” and the fact that
she audited her own accounting rendered her opinions “questionable” and they “may not be
reliable.”
¶ 75 Grant addressed Stuckert’s testimony that the District borrowed funds, i.e., her reference
to tax anticipation warrants. He opined that this could “only mean the fund was utilizing the
contribution fees for working capital[.]” Thus, he further concluded, the impact fees were being
used to pay down debt and fund operations associated with general operations and the education
fund. “When the [D]istrict is short of funds, they use the contribution fees, and when the [D]istrict
has excess funds collecting interest income the [D]istrict keeps the interest income.”
¶ 76 E. Trial Court’s Ruling
¶ 77 On January 6, 2022, and via an order entered on January 11, 2022, the trial court granted
the District partial summary judgment on count I of its complaint and on defendant’s fourth
amended counterclaim. The court found that the building code was not relevant to the question of
impact fees and that the relevant definition of “bedroom” is in the city’s Unified Development
Ordinance. Relying on the dictionary definition of terms in the ordinance, the court found that the
rooms at issue were designed and ultimately used principally or primarily for sleeping purposes.
¶ 78 In granting the District summary judgment on defendant’s fourth amended counterclaim,
the court noted that Grant did not attach to his affidavit copies of the generally accepted accounting
- 20 -
2023 IL App (2d) 220170-Uprinciples to which he referred. The court found that Grant’s opinion that a separate bank account
for impact fees should have been used was not based upon any statute or ordinance. The court
also took issue with Grant’s opinion that Stuckert’s claim that the District used the fees only for
purposes set forth in the city’s ordinance was not reliable. The court noted that Grant did not
specify why Stuckert’s claims lacked objectivity, and he did not specify a factual basis for
disputing that the District was not using fees for working capital. In all, the court found Grant’s
opinions conclusory and unsupported by facts and it gave “no weight” to his exhibits or affidavit.
Accordingly, it determined there was no factual issues precluding summary judgment in the
District’s favor. 5
¶ 79 Defendant moved to reconsider, arguing that the trial court weighed affidavits against
Work’s deposition testimony and did not consider the city’s certification of the homes at issue as
meeting all ordinances. Defendant also argued that Stuckert’s self-serving testimony was
contradicted by her own admissions that monies were put in the wrong fund—one for education,
not operations and maintenance. The District responded that the court did not weigh the evidence,
and Work’s conclusory and self-serving statements did not raise material factual questions. As to
the fourth amended counterclaim, the District responded that, even if defendant had raised a factual
issue about where the District had deposited the impact fees, the District would still be entitled to
summary judgment because defendant failed to offer any facts that the District improperly used
the fees. In any event, it further argued, Grant’s affidavit did not raise factual issues concerning
5
The court denied the District’s motion for partial summary judgment as to defendant’s
third amended counterclaim.
- 21 -
2023 IL App (2d) 220170-Uthe use of the District’s impact fees, and he instead made conclusory statements unsupported by
facts based on his personal knowledge.
¶ 80 On April 21, 2022, the court denied defendant’s motion to reconsider. It noted that the
affidavits were irrelevant because the request to admit framed the issue as a legal question on count
I. As to the fourth amended counterclaim, the court determined that there were no allegations that
the District violated any laws in depositing the impact fees. As to the allegation that it used the
monies for improper purposes, the court found that no material factual issues existed to support
this allegation. It corrected its initial finding and clarified that it “did not weigh” Stuckert’s and
Grant’s affidavits. “That was not my intent to use that term.” The court reiterated that Grant’s
affidavit statements were conclusory and “completely devoid of any factual basis,” including his
conclusion that it “can only mean” that the District was using the impact fees for working capital.
The court specifically noted that Grant did not provide a factual basis for his conclusory statement
that the District improperly used the impact fees. Turning to Stuckert’s statements, the court found
that they were not substantively inconsistent. The court also found that there was no just reason
to delay appeal of judgment in the District’s favor. Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016).
Defendant appeals.
¶ 81 II. ANALYSIS
¶ 82 Defendant argues that the trial court erred in granting the District summary judgment on
the ordinance violation count (count I) of the District’s complaint and on defendant’s fourth
amended counterclaim. For the following reasons, we reject defendant’s arguments.
¶ 83 Summary judgment “shall be rendered without delay if the pleadings, depositions, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law.” 735 ILCS
- 22 -
2023 IL App (2d) 220170-U5/2-1005(c) (West 2020). In deciding a summary judgment motion, the court must construe the
pleadings, affidavits, depositions, and admissions on file strictly against the moving party and
liberally in favor of the opponent. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004).
A triable issue precluding summary judgment exists where the material facts are disputed or where,
the material facts being undisputed, reasonable persons might draw different inferences from the
undisputed facts. Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 162-63 (2007). Although
summary judgment can aid in the expeditious disposition of a lawsuit, it remains a drastic means
of disposing of litigation and, therefore, should be allowed only where the right of the moving
party is clear and free from doubt. Id. at 163. We review de novo the granting of a motion for
partial summary judgment. Sinclair Oil Corp. v. Allianz Underwriters Insurance Co., 2015 IL
App (5th) 140069, ¶ 34.
¶ 84 The rules of statutory construction apply to the interpretation of municipal ordinances.
Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008). The fundamental objective of
statutory construction is to ascertain and give effect to the drafter’s intent. Hubble v. Bi-State
Development Agency of the Illinois-Missouri Metropolitan District, 238 Ill. 2d 262, 268 (2010).
The statutory language, given its plain and ordinary meaning, is the best indication of legislative
intent. In re Andrew B., 237 Ill. 2d 340, 348 (2010). If the language is clear and unambiguous, it
will be given effect without using any other aids of statutory construction. Henderson Square
Condominium Ass’n v. LAB Townhomes, LLC, 2015 IL 118139, ¶ 67. We review de novo
questions of statutory construction. Ries v. City of Chicago, 242 Ill. 2d 205, 216 (2011).
¶ 85 A. Count I - Ordinance Violation
¶ 86 Defendant argues that the trial court should have construed the Unified Development
Ordinance and the city’s building code in harmony and determined that a legal “bedroom” must
- 23 -
2023 IL App (2d) 220170-Uhave an egress window, smoke detector, and a carbon monoxide detector. Alternatively, it argues
that, regardless of whether the city’s building code applies, factual questions exist concerning
whether the rooms at issue were designed and/or intended principally for sleeping purposes, such
as whether a basement bedroom was intended or used principally for sleeping purposes or whether
a home sold to a couple with no children was designed or used as a four-bedroom home and where
smoke detectors were not installed in two of the bedrooms. In defendant’s view, factual questions
existed as to whether it misrepresented the number of rooms intended principally for sleeping
purposes on its permit applications. Defendant finally notes that a builder must abide by all laws
and that, by issuing a certificate of occupancy, the city acknowledged that construction complied
with all of its laws, including the Unified Development Ordinance.
¶ 87 Preliminarily, defendant argues that its response to the District’s request to admit does not
automatically turn what constitutes a “bedroom” into a pure question of law, because Rule 216
requests to admit do not permit the admission of legal conclusions. Further, defendant contends
that, while what constitutes a “bedroom” under the Unified Development Ordinance is a legal
question, resolution of that question under the District’s definition is grounded in factual issues—
for example, whether a bedroom is intended for sleeping purposes is a factual question. Defendant
maintains that the District’s interpretation of sleeping purpose is subjective, while defendant’s
interpretation is objective. We reject this claim. The definition of a “bedroom,” which requires
us to construe an ordinance, presents a legal question. Furthermore, defendant is bound by its
response to the request to admit.
¶ 88 Turning to the central issue, we conclude that the trial court did not err in granting the
District summary judgment on count I of its complaint. First, the court correctly determined that
the Unified Development Ordinance is the only relevant statute. The Unified Development
- 24 -
2023 IL App (2d) 220170-UOrdinance addresses impact fees, contains a definition of “bedroom,” and nowhere reflects that it
must be harmonized with the city’s building code. The Unified Development Ordinance focuses
on the needs of an area with a growing population for, as relevant here, adequate school facilities.
Unified Development Ordinance § 6.11.3. It does not address building safety. The city determined
that cash contributions (i.e., contribution/impact fees) in lieu of the dedication of land for school
sites will be assessed on all final plats of residential subdivisions and planned unit developments,
the amount of which is determined at the time of final platting. Id. The city’s municipal code,
which is its building code, in contrast, addresses building standards to ensure safety. Sycamore
City Code § 9-4-1 (2015). It does not address or regulate contribution/impact fees. The ordinance
and code, therefore, are not related. Furthermore, they each contain their own definitions of
bedroom-type rooms. The Unified Development Ordinance defines a “bedroom” as “any room
designed, intended, or used principally for sleeping purposes.” Unified Development Ordinance
§ 1.3.3. The municipal code, incorporating the International Residential Code, contains safety
requirements for a “sleeping room,” specifying that it must have a smoke alarm therein, there must
be an alarm outside each sleeping area, a carbon monoxide alarm in the sleeping room, and a means
of egress therefrom. International Residential Code §§ R310.1, R315.3 (2015). Nowhere do the
enactments indicate that the definitions must be harmonized, nor can we contemplate any policy
reason to do so where there is no relationship between building safety and school funding.
Accordingly, the Unified Development Ordinance is the relevant enactment and its definition of
“bedroom” is the proper focus of this appeal.
¶ 89 Having determined the proper source of the definition of a “bedroom,” we turn next to the
evidence presented supporting the number of such rooms. We conclude that no material factual
questions were raised concerning the number of bedrooms in the properties at issue. The affidavits
- 25 -
2023 IL App (2d) 220170-Uand depositions the District obtained from homeowners reflected that defendant represented that
their homes contained either three or four bedrooms, not two bedrooms, which defendant
represented in calculating its impact fees. (These documents were further supported by real estate
listings.) Relying on the dictionary definition of “bedroom,” the trial court found that the rooms
at issue were designed and used principally or primarily for sleeping purposes. We agree with the
trial court that the commonly understood and dictionary definition of “bedroom” is the same as
that in the Unified Development Ordinance and, thus, it is the same as the homeowners’
understanding of such (in the absence of any indication that the homeowners meant otherwise
when they categorized their homes as either three- or four-bedroom homes). See Unified
Development Ordinance § 1.3.3 (a “bedroom” is “a room furnished with a bed and intended
primarily for sleeping”); see also Websters Ninth New Collegiate Dictionary 139 (1985) (a
“bedroom” is “a room furnished with a bed and intended primarily for sleeping”).
¶ 90 We need not espouse on whether specific features need be present to transform a room into
a bedroom because we disagree with defendant that Work’s testimony raised a factual issue
concerning the number of bedrooms in the properties at issue. Work offered no support for his
opinions, and we agree with the District that his dispute was based on the definition of a bedroom,
as he testified that he attempted to determine the definition of a bedroom and was told it did not
exist. He also acknowledged applying for permits for two-bedroom homes that eventually became
four-bedroom homes, but did not pay additional impact fees after the initial payment because there
was no process in place to do that. His statements otherwise consisted of self-serving opinions
insufficient to raise a factual question. See Parker v. House O’Lite Corp., 324 Ill. App. 3d 1014,
1029-31 (2001) (“When determining whether factual issues exist for purposes of a summary
- 26 -
2023 IL App (2d) 220170-Ujudgment motion, we must ignore personal conclusions, opinions and self-serving statements and
consider only facts admissible in evidence.”). (Internal quotation marks omitted.)
¶ 91 For example, Work was questioned about four affidavits. First, with respect to 625
Brighton, Work asserted that he “disputed” that a home was a four-bedroom home because one of
the bedrooms was in the basement, but he did not testify that it was a two-bedroom home (as
represented when defendant calculated its impact fees). Second, with respect to 609 Brighton
Way, he conceded the home was a three-bedroom home and complained only about an unanswered
question from the City about where to direct a check. Third, with respect to 2349 Pioneer Way,
Work acknowledged the home contained three bedrooms and a loft and then noted his dispute with
the definition of bedroom: “Is it a basement? Is it a loft? I don’t know.” Finally, with respect to
2325 Pioneer Way, Work conceded adding drywall in the basement to create a bedroom in the
four-bedroom home; he did not assert it was a two-bedroom home.
¶ 92 Defendant argues that the homeowners’ testimony that they were sold homes with a certain
number of bedrooms does not undisputedly establish that the alleged bedrooms were going to be
principally used for sleeping purposes. Defendant also argues that, regardless of the definition of
“bedroom,” and drawing all reasonable inferences in its favor, the following evidence showed that
factual questions exist as to whether the bedrooms referenced in the homeowners’ affidavits were
intended to be used principally for sleeping purposes: Sauter was clear that the bedrooms at issue
could not be used for sleeping purposes because they lacked life-safety equipment; Work testified
that many of the bedrooms at issue were not going to be used for sleeping purposes; Work testified
that defendant constructs homes beyond what it advertises; and Sauter testified that rooms without
proper safety equipment cannot be a sleeping room, and a closet is not relevant to whether it will
be used for sleeping purposes. We disagree that this evidence raises any factual questions
- 27 -
2023 IL App (2d) 220170-Uconcerning the number of bedrooms. Sauter’s statements concerning safety equipment were based
on his belief that the building code contains the proper definition of a bedroom-type room, which
we reject. Further, Work’s testimony concerning the actual or intended use of particular bedrooms
misreads the definition of “bedroom” in the Unified Development Ordinance. Whether a room is
“designed, intended, or used principally for sleeping purposes” does not require that a given family
use it as a bedroom, as that term is commonly understood. The definition incorporates rooms
“designed *** for sleeping purposes” and, therefore, it is not dependent on its specific occupants’
actual use of the room.
¶ 93 Finally, we note that whether the city issued a certificate of occupancy is not relevant to
determining the number of bedrooms. Defendant added closets after final inspections. Further,
the building permit application states that the city’s approval of plans does not relieve a builder
from complying with all city ordinances and laws.
¶ 94 In summary, under the narrow circumstances presented, the trial court did not err in
granting the District summary judgment on count I of its complaint.
¶ 95 B. Fourth Amended Counterclaim
¶ 96 Next, defendant argues that the trial court erred in granting the District summary judgment
on the fourth amended counterclaim. It notes that the Unified Development Ordinance limits the
use of impact fees for the purchase of real estate or structures for the use as schools or educational
facilities, the construction of new buildings for use as schools or educational facilities, or the
modification of existing school buildings or educational facilities. Unified Development
Ordinance § 6.11.3(I)(B)(2)(a). Impact fees, it further notes, cannot be used for general operations,
but Stuckert’s testimony and the District’s financial records, it asserts, shows that they were being
used for such. Defendant asserts there are factual questions as to whether the impact fees are
- 28 -
2023 IL App (2d) 220170-U“void” based on actual expenditures made in contravention of the Unified Development
Ordinance. As evidence that the fees were being spent for purposes other than those authorized
by the Unified Development Ordinance, it points to the alleged deposit of impact fees into the
education fund.
¶ 97 Defendant primarily bases its arguments on Stuckert’s testimony. Specifically, it contends
that her affidavits contradict her deposition testimony and, thus, raise factual questions as to
whether the District deposited impact fees into its educational fund. Defendant contends that a
party’s later submission of an affidavit inconsistent with that party’s deposition testimony cannot
raise a factual dispute. Here, it asserts, Stuckert’s second, post-deposition affidavit attempted to
alter her deposition testimony by removing a factual question as to whether the fees were
accounted for in the wrong fund. Just as a party cannot submit a later affidavit to create a factual
question, defendant posits, it follows that a party cannot submit a later affidavit to remove a
question of fact. Defendant also argues that, by choosing to credit Stuckert’s attestations that the
funds were not improperly spent, the trial court erroneously weighed the evidence and the
credibility of her attestations against her deposition testimony and the objective financial records.
¶ 98 Defendant also takes the position that the “deposit” of impact fees into the incorrect
restricted fund is direct evidence that the fees were misspent. The fact that they were deposited
into the education fund (which it asserts Stuckert’s deposition testimony shows), it asserts, raises
the reasonable inference that the fees were not spent on new school buildings or improvement of
existing school buildings. Thus, a factual question exists, defendant argues, as to whether it is
entitled to a refund.
¶ 99 Defendant also relies on Grant’s affidavit, arguing that it raised a factual question as to
whether the District misspent the impact fees it received. It points to Grant’s conclusion that the
- 29 -
2023 IL App (2d) 220170-UDistrict was utilizing the impact fees for working capital and placing them in improper funds. The
trial court, defendant asserts, erred in placing no “weight” in Grant’s affidavit, where weighing
and assessing evidence is improper in deciding a summary-judgment motion. Defendant also takes
issue with the court’s determination that Grant’s affidavit consisted of statements unsupported by
facts. It argues that Grant’s affidavit reflects that he relied on documents and Stuckert’s testimony
as support for his conclusions.
¶ 100 We conclude that the trial court did not err in granting the District summary judgment on
defendant’s fourth amended counterclaim. No material factual issue existed concerning the
District’s use of the contribution/impact fees.
¶ 101 The Unified Development Ordinance provides:
“The cash contributions in lieu of school sites shall be held in trust by the [District][.] The
funds collected by the [District] pursuant to this ordinance shall be used only for (1) the
purchase of real estate or structures for the use as schools or educational facilities for
students in Sycamore, Illinois[,] and the [District]; (2) the construction of new buildings
for use as schools or educational facilities for students in Sycamore, Illinois[,] and the
[District]; or (3) the modification of existing school buildings or educational facilities for
students in Sycamore, Illinois[,] and the [District]. No other use shall be made of the funds
so collected.” (Emphases added.) Unified Development Ordinance § 6.11.3(I)(B)(2)(a).
¶ 102 The ordinance precludes the “use” of funds for purposes other than the three enumerated
therein.
¶ 103 In her first affidavit, Stuckert averred that impact fees were accounted for in the District’s
operations and maintenance fund (Fund 20) and that the District only used the fees for the purposes
set forth in the ordinance. She also averred that, in the last 10 years, the fees had been used for
- 30 -
2023 IL App (2d) 220170-Uonly two projects: the modification of the middle school in 2012 and the purchase of real estate
adjacent to the middle school in 2015. At her deposition, she similarly testified that the District
used impact fees only for the purposes set forth in the ordinance.
¶ 104 Stuckert also addressed the District’s accounting practices. Impact fees, she testified, are
deposited into the master fund. There is no statutory requirement to maintain separate bank
accounts for each fund. Pursuant to fund accounting practices, they are accounted for in the
operations and maintenance fund (Fund 20) and are restricted monies that can be spent only on
certain items. The District’s financial software traces impact fee funds versus property tax dollars
deposited into a revenue account and prevents the money from being transferred to an improper
purpose. Monthly, the District runs a reconciliation that shows the money it has and what is
restricted. Also, through a third party, the District conducts an annual audit to assess how money
is spent. Stuckert testified that she conducts an annual audit. The District also maintains a
spreadsheet showing the impact fees paid by each builder for every subdivision.
¶ 105 Turning to the focus of defendant’s argument, Stuckert was shown two exhibits during her
deposition, neither of which were moved into evidence. The first exhibit (No. 15) was a fiscal
year 2014 budget that was prepared by her predecessor; Stuckert became responsible for budgets
beginning in 2015. Stuckert explained that she did not prepare the budget and thus did not know
why $230,000 in contribution fees were listed under the education fund and nothing was listed in
the operations and maintenance fund. We cannot conclude from the foregoing that a material
factual question was raised that the District was improperly accounting for impact fees in the
education fund. Clearly, it is undisputed that Stuckert did not prepare the exhibit that she was
asked to review. Further, as noted, the primary inquiry concerning the counterclaim is whether
the impact fees were used for purposes other than those specified in the Unified Development
- 31 -
2023 IL App (2d) 220170-UOrdinance. The foregoing allegations do not sufficiently connect any deposits to impermissible
expenditures.
¶ 106 The second exhibit (No. 16) involved a fiscal year 2019 budget, which was a period which
is not at issue in this case. Nevertheless, Stuckert reviewed the exhibit and stated that it showed
impact fees under the education fund, not the operations and maintenance fund, and that this could
have been a mistake, but did not indicate that the funds were actually used for education fund
purposes. Nor would it, she continued, indicate that impact fees were used because of any short-
term cash shortfall. The foregoing, we conclude, does not raise a factual question concerning the
District’s use of the impact fees. The data at issue involved a year that is not at issue in this case,
and Stuckert explained that the budget did not reflect that the impact fee funds were improperly
used, which is the subject of the ordinance and the basis of defendant’s counterclaim. Further, in
all, Stuckert’s testimony did not contradict her affidavits.
¶ 107 Defendant did not produce evidence raising a material factual question. We agree with the
trial court that Grant’s affidavit contained conclusory and unsupported statements. Grant did not
provide facts showing that the District used the contribution/impact fees for general operating
purposes. Rather, he made unsupported and conclusory statements about where the District
deposited the fees, that it violated GAAP standards (without attaching copies of the relevant
standards), and opined that it should have invested the fees.
¶ 108 Affidavits, including expert’s affidavits, filed in the summary judgment context serve as
substitutes for trial testimony and must strictly comply with Illinois Supreme Court Rule 191(a)
(eff. Jan. 4, 2013). Robidoux v. Oliphant, 201 Ill. 2d 324, 335-336, 339 (2002). Rule 191(a)
provides that affidavits filed in support of or in opposition to a summary judgment motion:
- 32 -
2023 IL App (2d) 220170-U“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 documents 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. If all of the facts to
be shown are not within the personal knowledge of one person, two or more affidavits shall
be used.” Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013).
¶ 109 “An affidavit utilized in a summary judgment procedure is subject to a more stringent
admission standard than testimony at trial, where an expert can be cross-examined, the expert’s
underlying facts and data can be probed, and the expert’s conclusions can be tested.” Brettman v.
Virgil Cook & Son, Inc., 2020 IL App (2d) 190955, ¶ 61. Rule 191 bars conclusions for which the
affiant provides no specific factual support. Id. ¶ 63. The expert’s opinion cannot be based on
conjecture or speculation. Id. ¶ 64. Use of terms such as “likely” or “might” are not based on
facts, nor is an opinion on what a “typical” person would do. Id. ¶¶ 68-69.
¶ 110 Grant averred that Stuckert’s testimony reflected that the impact fees were deposited into
the education fund. In support of this opinion, he cited to Stuckert’s testimony concerning the
budget her predecessor prepared (the year is unspecified in her deposition) and her statement that
she did not know why certain funds were listed in the education fund and no monies were listed in
the operations and maintenance fund. We conclude that Grant provides an insufficient factual
basis for his opinion that the District was commingling funds. Without facts indicating the amount
of impact fees received in this particular year, for example, it is a great leap to conclude that the
funds were being commingled.
- 33 -
2023 IL App (2d) 220170-U¶ 111 Grant also took issue with the fact that the District did not maintain separate bank accounts
for each fund. However, he relied on no statutory authority for this proposition, whereas Stuckert
testified that there is no statutory requirement to maintain separate accounts. Indeed, Grant averred
that the “simplest fund accounting” was to maintain separate accounts, but he did not aver that this
was required. He also averred that the funds “should have been invested” (emphasis added), but
cited no authority that required that this be done.
¶ 112 As to the central question of how the District used the impact fees, Grant relied on his
opinion that the District commingled the impact fees with other funds to further opine that
Stuckert’s statement that the fees were used only for proper purposes under the ordinance was
“very difficult for her to verify” and that, because she audited her own accounting, “her opinions
are questionable and may not be reliable.” These statements, we believe, do not contradict
Stuckert’s statements and do not raise a factual question concerning how the District used the
impact fee monies.
¶ 113 Grant twice noted Stuckert’s testimony that the District was borrowing funds, opining:
“which can only mean the fund was utilizing contribution fees for working capital[.]” This
statement is conclusory, as the trial court determined, and unsupported by specific facts. Grant
did not explain in his affidavit how he arrived at this conclusion or point to facts reasonably
supporting it. It does not necessarily follow that the fact that the District takes short-term loans
means that the restricted impact fee monies have been misspent. Similarly, Grant opined, without
support, that, when the District was short of funds, it used contribution fees. The trial court did
not err in finding his statements and opinions unsupported. We agree with the trial court that Grant
did not provide a factual basis for his conclusory statement that the District improperly used the
impact fees.
- 34 -
2023 IL App (2d) 220170-U¶ 114 Finally, we note that, in its ruling on defendant’s motion to reconsider, the trial court
corrected its statement at the hearing on the summary judgment motion that it gave no weight to
Grant’s affidavit. “Weighing and appraising the evidence is improper in deciding a summary
judgment motion.” Jones v. Petrolane-Cirgas, Inc., 186 Ill. App. 3d 1030, 1034 (1989). The court
clarified that it had misspoken and had not actually weighed the parties’ affidavits.
¶ 115 In summary, the trial court did not err in granting the District summary judgment on the
fourth amended counterclaim.
¶ 116 III. CONCLUSION
¶ 117 For the reasons stated, we affirm the judgment of the circuit court of De Kalb County.
¶ 118 Affirmed.
- 35 -