KT Winnenburg, LLC v. Roth

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Appellate Court Date: 2021.05.28
14:04:53 -05'00'
KT Winneburg, LLC v. Roth, 2020 IL App (4th) 190274Appellate Court KT WINNEBURG, LLC, a Missouri Limited Liability Company
Caption Registered to Do Business in the State of Illinois, Plaintiff-Appellant,
v. LISA ROTH, in Her Official Capacity as Collector and Treasurer
of Calhoun County, Illinois, and CALHOUN COUNTY, Defendants-
Appellees (The Board of Education of Brussels Community Unit
School District No. 42, Intervenor-Appellee).
District & No. Fourth District
No. 4-19-0274
Filed April 7, 2020
Decision Under Appeal from the Circuit Court of Calhoun County, No. 14-TX-7; the
Review Hon. Robert Adrian, Judge, presiding.
Judgment Affirmed in part and reversed in part.
Counsel on Elliott L. Turpin, of Carrollton, for appellant.
Appeal
Richard J. Ringhausen, State’s Attorney, of Hardin (Patrick Delfino,
of State’s Attorneys Appellate Prosecutor’s Office (Christopher E.
Sherer and John M. Gabala, of Giffin, Winning, Cohen & Bodewes,
P.C., of Springfield, of counsel), for appellee Lisa Roth.
H. Allen Yow and Koert J. Brown, of Rammelkamp Bradney, P.C., of
Jacksonville, for other appellee.
Panel JUSTICE CAVANAGH delivered the judgment of the court, with
opinion.
Presiding Justice Steigmann and Justice Knecht concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff, KT Winneburg, LLC, owns some platted and subdivided land in Calhoun County,
Illinois. For the 2013 tax year, the Calhoun County Board of Review classified the land as
entirely residential, even though the land was unimproved and, to the extent it was not
timberland, had been used for the growing and harvesting of crops. Plaintiff filed a tax
objection complaint in the Calhoun County circuit court, naming, as defendant, Lisa Roth, in
her official capacity as Collector and Treasurer of Calhoun County, Illinois. Also, the Board
of Education of Brussels Community Unit School District No. 42 obtained leave to intervene,
and on plaintiff’s motion for joinder, Calhoun County, Illinois (the county), was added as a
defendant. Against those three entities (collectively, defendants), plaintiff maintained that the
land should have been classified in the 2013 tax year as farmland—a classification that would
have resulted in a lower assessment and, hence, a lower property tax.
¶2 After granting a section 2-619 motion by defendants to dismiss, with prejudice, count II of
plaintiff’s amended complaint (see 735 ILCS 5/2-619 (West 2016)), the circuit court held a
bench trial on the remaining count. In its written decision, the court found, pursuant to a
stipulation by the parties, that 5 of the 89 parcels should be classified as common ground. See
35 ILCS 200/10-35 (West 2018). As for the remaining 84 parcels, the court found a failure to
prove, by clear and convincing evidence, that the residential classification was incorrect.
Plaintiff appeals on two grounds.
¶3 First, plaintiff argues that the circuit court erred by granting defendants’ motion to dismiss
count II of the amended complaint. In count II, plaintiff sought to enforce an alleged settlement
agreement with the county—as plaintiff previously tried to do, without success, in litigation
before the Property Tax Appeal Board. Because of the unappealed final decision in that
administrative litigation, we find plaintiff to be collaterally estopped from asserting the
enforceability of the settlement agreement. Thus, we affirm the dismissal of count II.
¶4 Second, plaintiff argues that the circuit court clearly erred by confirming the county board’s
assessments of the non-common-ground parcels as residential property. We agree. No one
lived on the land or built a house on it. To the extent the land was used at all, it was used only
as farmland. To be assessed as farmland, land must be used as farmland for three consecutive
years, that is, not only for the tax year in question but also for the preceding two years. 35 ILCS
200/10-110 (West 2012). To the extent that the 84 non-common-ground parcels were not
timberland, the only use to which they were put from 2011 to 2013 was the growing and
harvesting of crops. The cropland and the timberland alike met the statutory definition of
farmland. See id. §§ 1-60, 10-110, 10-125(a), (c).
¶5 Therefore, we affirm in part and reverse in part the circuit court’s judgment.
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¶6 I. BACKGROUND
¶7 The amended complaint had two counts.
¶8 In count I, plaintiff alleged that, for the 2013 tax year, the Calhoun County Board of Review
assessed the land as residential property whereas the land always had been used, and continued
to be used, as farmland. Plaintiff also claimed to be entitled to a developer’s exemption. (We
will explain all these terms in a moment.)
¶9 In count II, plaintiff accused the county of reneging on an oral settlement agreement.
Allegedly, the county and plaintiff reached the agreement in February 2014, in a hearing before
the Property Tax Appeal Board on the 2010 assessments. (Again, the present case concerns the
2013 assessments, which, this time, plaintiff chose to challenge in the circuit court instead of
before the Property Tax Appeal Board. If a taxpayer is dissatisfied with a decision by the board
of review, the taxpayer may either appeal to the Property Tax Appeal Board or file a tax
objection complaint in the circuit court. Dumas v. Pappas, 2014 IL App (1st) 121966, ¶ 17.)
The alleged settlement covered not only the 2010 tax year but succeeding tax years. According
to count II, the county, through Special Assistant State’s Attorney Christopher E. Sherer,
agreed as follows: “[F]or the tax years 2010 through 2013, the total assessment for the
aggregate of all of the lots *** would be $20,000.00; then beginning in tax year 2014, the
property would be assessed as farmland or timber, whichever was the current use on each lot
in question, until the use of the lots changed.”
¶ 10 Pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2016)),
defendants moved to dismiss count II of the amended complaint. One of the grounds for the
requested dismissal was collateral estoppel. The estopping decision, according to defendants,
was the final decision by the Property Tax Appeal Board in the administrative litigation over
the 2010 assessments. In its decision, the Property Tax Appeal Board adopted and incorporated
its administrative law judge’s denial of plaintiff’s motion to enforce the settlement agreement.
The rationale for the denial was that the oral agreement was nonbinding on the county because
when Sherer presented the agreement to the county board, the agreement was voted down.
(After the settlement negotiations, Sherer reported back to the administrative law judge: “ ‘I
have been informed by the County Board Chairman that the Intervenor (Calhoun County) will
not be agreeing to stipulate in this matter.’ ”) Therefore, the Property Tax Appeal Board
decided, there was no meeting of the minds. Plaintiff never sought judicial review of the
Property Tax Appeal Board’s final decision. As a result, defendants argued in their section 2-
619 motion, plaintiff now was collaterally estopped from asserting the enforceability of the
settlement agreement. See id. § 2-619(a)(4). Defendants had a fallback argument for
dismissing count II: they argued that Sherer had lacked authority from the county to enter into
the oral settlement agreement.
¶ 11 In March 2018, the circuit court granted defendants’ motion to dismiss count II with
prejudice. While the court disagreed with defendants that Sherer lacked authority to settle for
the 2010 tax year, the court agreed that he lacked authority to settle for tax years after 2010.
The insufficiency of his authority, the court reasoned, lay in the open-endedness of the
settlement agreement. The agreement purported to bind all the taxing districts, even though
they had received no notice that any tax years other than 2010 were in dispute in the
administrative litigation. Two further reasons the court gave for the dismissal of count II were
collateral estoppel and (a point none of the defendants had raised) the lack of consideration to
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support a settlement contract. So, count II of the amended complaint was stricken, and count I
was left standing.
¶ 12 In November 2018, a bench trial on count I commenced. The evidence tended to show the
following.
¶ 13 In 2008, in a sheriff’s sale, plaintiff bought some land that already had been platted and
subdivided. The land was made up of 89 parcels organized into four subdivisions: Winneburg
Estates, Deer Trail, Fox Run, and Eagle’s Nest.
¶ 14 All of this land was zoned as residential, specifically, R-2, for single-family residences.
There had been some development to prepare the land for residential use. Water lines and
telephone lines ran along some of the streets. A water line ran part of the way into Deer Trail
subdivision, but there were no water meters. There were some electrical boxes near Fox Run
and Deer Trail subdivisions, but none of the parcels had electrical service. Thirty-five houses
had been built adjacent to plaintiff’s land. No houses stood on plaintiff’s land. Even so,
restrictive covenants required that plaintiff’s land be used only in ways that would keep it
attractive for residential purposes. The covenants forbade any commercial use of the land.
From 2011 to 2013, plaintiff had been marketing the land as ideal for the construction of single-
family residences. Plaintiff, however, had built no gutters, sidewalks, or sewers.
¶ 15 Instead, from 2011 to 2013, Bobby Weischaar, with plaintiff’s permission, had been
planting and harvesting corn and soybeans on 14 of the 89 parcels—even though, under the
Calhoun County zoning ordinances, farming was impermissible in R-2 zones. Plaintiff had no
crop share lease with Weischaar. Plaintiff bore none of the expenses of the farming and shared
none of the profits. Plaintiff allowed Weischaar to farm the 14 parcels for free, to keep down
the Johnson grass and to save on mowing. Crops looked better than weedy, overgrown parcels.
¶ 16 The 14 parcels in cultivation were in Winneburg Estates subdivision. They were farmed
right up to the point where the terrain sloped down steeply into timber. The parties stipulated
that the other three subdivisions—Deer Trail, Fox Run, and Eagle’s Nest—were substantially
timberland. This timberland, the parties further stipulated, was not being managed under a
forestry management plan approved by the Illinois Department of Natural Resources.
¶ 17 After the presentation of the evidence, including an onsite viewing of the land and the
submission of written arguments, the circuit court entered a judgment in favor of the defendants
and against plaintiff on the remaining count of the amended complaint, count I.
¶ 18 In its written decision, the circuit court first considered the 14 parcels that had been under
cultivation, for if those parcels failed to qualify as farmland, the remaining non-common-
ground parcels would not be “other farmland.” (“Other farmland” is a type of farmland, as we
soon will explain.) The court found that the 14 parcels were not farmland. In so finding, the
court relied on section 1-60 of the Property Tax Code (35 ILCS 200/1-60 (West 2012)), which
excluded from the definition of a farm any property that, though used for the growing and
harvesting of crops, was used primarily for residential purposes. The court reasoned:
“The parcels in question are platted as residential lots. The parcels were developed as
residential lots. The parcels are zoned as single family residential. The parcels are being
marketed as single family residential lots. Additionally, the crops were actually being
grown to further the parcel’s use as residential property. Ken Howard [(plaintiff’s
owner)] testified that the crops were being planted to keep down the Johnson grass and
weeds, and the crops looked better than the weeds. He did not receive any income from
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the crops because he did not want the local person who farmed the property to lose any
income. (Goodwill helpful to market the lots.) All of these facts show that the primary
use of these parcels is as residential lots.”
Having found that the parcels with growing crops were not a farm, the court concluded that
the rest of the lots could not possibly be “other farmland.” Nor, without a farm, could there be
any “wasteland” (another type of farmland).
¶ 19 The circuit court next addressed plaintiff’s claim to a developer’s exemption pursuant to
section 10-30 of the Property Tax Code (id. § 10-30). Because plaintiff, instead of being the
developer, was a buyer of the property after it was developed, the court held the developer’s
exemption to be inapplicable. The court wrote:
“The purpose of the statute is to encourage owners to develop their properties. Plaintiff
did not develop the property in question. Plaintiff purchased the property after it was
already developed. The property had already been platted. Utilities were already
installed throughout the development, and roads were already built. The only
developing plaintiff did to the property was to extend some existing roadway and cut
some minor roads. The statute was never intended to grant relief to a subsequent
purchaser of the property. The intent is shown by subsection (c) of the statute [(35 ILCS
200/10-30(c) (West 2012))] which states that this provision no longer applies after the
initial sale of any lot, including a lot which is vacant. The property in question was sold
several times since it was platted and developed. Plaintiff is a subsequent purchaser,
not the developer. Plaintiff does not qualify for relief under the statute.”
¶ 20 In sum, then, the circuit court found that the five parcels subject to the common-ground
stipulation should be assessed at $100 apiece. As for the remaining 84 parcels, however, the
court found a failure to prove, by clear and convincing evidence, that the residential
assessments were incorrect.
¶ 21 This appeal followed.
¶ 22 II. ANALYSIS
¶ 23 A. Collateral Estoppel and Count II
¶ 24 The logical first step in this appeal is to address the claim that plaintiff makes in count II
of the amended complaint, namely, that on February 24, 2014, in litigation before the Property
Tax Appeal Board, plaintiff and the county entered into a settlement agreement. If, as plaintiff
claims in count II, the county settled with plaintiff by agreeing that, “for the tax years 2010
through 2013, the total assessment for the aggregate of all of the lots *** would be $20,000,”
it seemingly would make no difference how the lots should have been classified for the tax
year 2013. But see 86 Ill. Adm. Code 1910.72 (2005) (providing that settlement negotiations
are “subject to any further review and/or approval by the [Property Tax Appeal] Board”).
Regardless of which classifications the lots deserved under statutory law, the total assessment
would be $20,000, as the settlement agreement stipulated. So, we will begin by scrutinizing,
de novo, plaintiff’s claim that, in the litigation before the Property Tax Appeal Board, plaintiff
reached a settlement binding on the county. See Palos Bank & Trust Co. v. Illinois Property
Tax Appeal Board, 2015 IL App (1st) 143324, ¶ 10 (“We review a section 2-619 dismissal
de novo.”).
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¶ 25 In their motion to dismiss count II pursuant to section 2-619 of the Code of Civil Procedure
(735 ILCS 5/2-619 (West 2016)), defendants did not dispute that plaintiff had settled with the
supervisor of assessments, Patricia Langland, and the special assistant state’s attorney,
Christopher E. Sherer. Plaintiff, Langland, and Sherer orally agreed that the total assessment
of plaintiff’s lots would be $20,000 for each of the four tax years from 2010 to 2013.
Defendants did not dispute the existence of this oral agreement between plaintiff, Langland,
and Sherer. See Better Government Ass’n v. Illinois High School Ass’n, 2017 IL 121124, ¶ 21
(noting that “[a] motion to dismiss under section 2-619 admits well-pleaded facts”).
Nevertheless, in defendants’ view, plaintiff was collaterally estopped from seeking to enforce
this agreement.
¶ 26 According to defendants, there were two reasons for the collateral estoppel. First, on May
6, 2015, an administrative law judge with the Property Tax Appeal Board denied plaintiff’s
motion to enforce the settlement agreement. The administrative law judge ruled, on the
authority of Meade v. City of Rockford, 2015 IL App (2d) 140645, that because the county
board had voted to reject the oral settlement agreement, the Property Tax Appeal Board “[could
not] mandate enforcement of the settlement against the [county board].” Second, in its final
unappealed decision of May 20, 2016, the Property Tax Appeal Board “adopted” the
administrative law judge’s ruling on plaintiff’s motion to enforce the settlement agreement and
“incorporated [the ruling] in full as if set forth in [its] decision.”
¶ 27 If this final decision by the Property Tax Appeal Board was “adjudicatory, judicial, or
quasi[-]judicial in nature” (Village of Bartonville v. Lopez, 2017 IL 120643, ¶ 71), it can have
issue-preclusive effect: in subsequent litigation, it can collaterally estop a party (see Village of
Alsip v. Portincaso, 2017 IL App (1st) 153167, ¶ 27). “Collateral estoppel precludes the
relitigation of any matter in issue which was actually or necessarily decided in a previous claim
or cause of action between the same parties or their privies.” Schratzmeier v. Mahoney, 246
Ill. App. 3d 871, 875 (1993). The matter in issue can be factual or legal; collateral estoppel
applies not only to findings of fact but also to conclusions of law. Du Page Forklift Service,
Inc. v. Material Handling Services, Inc., 195 Ill. 2d 71, 79 (2001).
¶ 28 In a nutshell, then, the rule of administrative collateral estoppel is this: if in a quasi-judicial
proceeding an administrative agency issues a final decision, the legal and factual findings in
the decision will, in future civil litigation, bind the parties and their privies, provided that the
findings were necessary to resolve the issues before the administrative agency (Terry v. Watts
Copy Systems, Inc., 329 Ill. App. 3d 382, 389 (2002)) and provided that issue-preclusion would
work no injustice (see Restatement (Second) of Judgments § 28 (1982)).
¶ 29 Plaintiff does not dispute that the Property Tax Appeal Board acted in a quasi-judicial or
adjudicatory capacity; that its decision of May 20, 2016, was final; and that plaintiff was a
party to the administrative litigation. Even so, for three reasons, plaintiff disputes that it is
collaterally estopped from asserting the enforceability of the settlement agreement.
¶ 30 First, plaintiff denies that the issue raised in count II of the amended complaint is identical
to an issue the Property Tax Appeal Board decided. The procedural vehicles in the two cases
were different. Consequently, plaintiff reasons, the issues were different. Plaintiff filed a
motion with the Property Tax Appeal Board, whereas count II was an action in and of itself.
The elements of a motion to enforce a settlement agreement, plaintiff argues, are different from
the elements of an action to enforce a settlement agreement. A party moving to enforce a
settlement agreement during the pendency of a case must prove (1) the liability of the other
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party, (2) the agreement as to the amount to be paid, and (3) the acceptance of the offer in
settlement of the dispute. McAllister v. Hayes, 165 Ill. App. 3d 426, 427 (1988). But when
bringing an independent action to enforce a settlement, the party must prove (1) the existence
of a contract, (2) the plaintiff’s performance of the contract, (3) the defendant’s breach of the
contract, and (4) damages resulting from the breach. Law Offices of Colleen M. McLaughlin v.
First Star Financial Corp., 2011 IL App (1st) 101849, ¶ 40. Plaintiff reasons that because
“[t]he elements of a suit to enforce a settlement agreement present different issues of law and
proof than a motion to enforce a settlement agreement,” the issue the Property Tax Appeal
Board decided is different from the issue raised in count II. (Emphases in original.)
¶ 31 Assuming, for the sake of argument, that the elements are essentially different depending
on whether a party moves to enforce a settlement agreement or sues to enforce one, collateral
estoppel does not require an identity of elements. Collateral estoppel does not require that the
claim in the first litigation have the same elements as the claim in the subsequent litigation.
Instead, a party is collaterally estopped when an “issue decided in the prior adjudication is
identical with the one presented in the suit in question.” Gumma v. White, 216 Ill. 2d 23, 38
(2005).
¶ 32 The issue in count II, plaintiff informs us, was whether plaintiff and the county had a
settlement contract. A contract is “a promise or set of promises for breach of which the law
gives a remedy, or the performance of which the law in some way recognizes as a duty.” 1
Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 1:1, at 2-3 (4th ed.
1990). If, as the Property Tax Appeal Board decided, plaintiff had no enforceable settlement
agreement with the county, plaintiff now is collaterally estopped from asserting the existence
of a contract—because a contract is, by definition, a promise or set of promises that the law
will enforce (id.). Whether a settlement contract existed was an issue the Property Tax Appeal
Board resolved against plaintiff. That issue cannot be relitigated. “Collateral estoppel, or issue
preclusion, prevents relitigation of issues of law or fact that have previously been litigated and
decided in an action involving the same parties or their privies.” In re Huron Consulting
Group, Inc., 2012 IL App (1st) 103519, ¶ 22.
¶ 33 The second reason why plaintiff contests the applicability of collateral estoppel is that,
according to plaintiff, “there was no final judgment on the issue of the settlement agreement
in the 2010 *** case [before the Property Tax Appeal Board].” Plaintiff admits that “there was
ultimately a final judgment in the [Property Tax Appeal Board] case.” Nevertheless, that “final
judgment,” plaintiff argues, “did not concern the settlement agreement, but merely concerned
the 2010 tax assessments.” We disagree. The text of the Property Tax Appeal Board’s decision
addresses both questions: first, whether the settlement agreement was enforceable against the
county, and, second, what the amounts of the assessments for 2010 should be.
¶ 34 Plaintiff suggests that the Property Tax Appeal Board’s refusal to enforce the settlement
agreement was like the denial of a motion for summary judgment (see City of Chicago v.
Ramirez, 366 Ill. App. 3d 935, 945-46 (2006)), which case law regards as a nonfinal,
nonappealable decision (Direct Auto Insurance Co. v. Koziol, 2018 IL App (1st) 171931, ¶ 19).
The reason, however, why the denial of a motion for summary judgment is nonappealable is
that “[a]ny error in the denial of a motion for summary judgment merges into the final judgment
rendered by the trial court[ ] and it is from that final judgment that an appeal is taken.” Id.Thus, in an appeal from a final judgment, a party could challenge the refusal to enforce a
settlement agreement (provided that the party has done everything necessary to preserve the
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issue). See id. It is just that the refusal must be appealed at the right time—after the final
judgment. See id. Plaintiff could have sought and obtained administrative review of the
Property Tax Appeal Board’s final decision. See Cook County Board of Review v. Property
Tax Appeal Board, 403 Ill. App. 3d 139, 143 (2010) (holding review of the Property Tax
Appeal Board’s decisions is governed by the Administrative Review Law (735 ILCS 5/3-101
et seq. (West 2008))). In such an action for administrative review, plaintiff could have argued
that, instead of deciding what the assessed values of the 89 parcels should have been for the
2010 tax year, the Property Tax Appeal Board simply should have imposed an aggregate
assessment of $20,000 in accordance with the settlement agreement. Plaintiff never brought
such an action for administrative review. Therefore, plaintiff is collaterally estopped by the
Property Tax Appeal Board’s decision that the settlement agreement is unenforceable against
the county.
¶ 35 The third reason why plaintiff contests the applicability of collateral estoppel is that the
Property Tax Appeal Board’s denial of the motion to enforce the settlement agreement was,
plaintiff argues, “not essential to its final decision as to the tax assessments for the year 2010.”
For an administrative finding to collaterally estop a party, the finding must be “essential or
necessary to the question before the [agency].” Terry, 329 Ill. App. 3d at 389-90. The American
Law Institute explains the requirement of essentiality this way:
“If issues are determined but the judgment is not dependent upon the determinations,
relitigation of those issues in a subsequent action between the parties is not precluded.
Such determinations have the characteristics of dicta, and may not ordinarily be the
subject of an appeal by the party against whom they were made. In these circumstances,
the interest in providing an opportunity for a considered determination, which if
adverse may be the subject of an appeal, outweighs the interest in avoiding the burden
of relitigation.” Restatement (Second) of Judgments § 27 cmt. h (1982).
¶ 36 The refusal to enforce a settlement agreement is not a throwaway dictum. Such a refusal is
quite consequential and can legitimately be a subject of an appeal (see In re Marriage of Frank,
2015 IL App (3d) 140292, ¶ 1; Ramirez, 366 Ill. App. 3d at 946; Kandalepas v. Economou,
269 Ill. App. 3d 245, 247 (1994))—as, come to think of it, the present appeal demonstrates.
The enforceability or nonenforceability of the settlement agreement was, in the administrative
litigation, an essential threshold issue. As such, it was ultimately an appealable issue. See 735
ILCS 5/3-110 (West 2008) (“The hearing and determination shall extend to all questions of
law and fact presented by the entire record before the court.”). The Property Tax Appeal Board
needed to determine 2010 assessments only if it declined to enforce the asserted settlement
agreement that the aggregate assessment for 2010 would be $20,000. In other words, before
adjudicating the dispute, the Property Tax Appeal Board had to decide whether the dispute had
been settled, and hence, whether there still was a dispute to be adjudicated. A valid settlement
would have ended the case, making an evaluation of the merits unnecessary. The same would
be true of the present case. Thus, we conclude, contrary to plaintiff’s argument, that the
enforceability of the settlement agreement was “material to the determination of both causes.”
Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 159 Ill. 2d 137, 153-
54 (1994).
¶ 37 According to the final, unappealed decision of the Property Tax Appeal Board, the
settlement agreement is unenforceable. That means there will be no relitigation of the
enforceability of the settlement agreement. The doorway to that issue is bricked up.
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Consequently, we affirm the dismissal of count II of the amended complaint on the ground of
collateral estoppel.
¶ 38 The rest of the controversy over count II is academic. It does not matter whether Sherer
had authority to bind the county. Right or wrong, the administrative law judge’s ruling, adopted
by the Property Tax Appeal Board, is final and unassailable. See Lady v. Montgomery Ward
& Co., 80 Ill. App. 3d 69, 73 (1980).
¶ 39 B. Cropland
¶ 40 1. Use Solely for the Growing and Harvesting of Crops
¶ 41 Plaintiff claims that, from 2011 to 2013, 14 parcels were “used solely for the growing and
harvesting of crops” (35 ILCS 200/1-60 (West 2012)) and that, accordingly, those parcels
should have been assessed as “[c]ropland” (id. §§ 10-110, 10-125(a)). See also id. § 10-110
(providing that, to be assessed as farmland, the land must have been used as farmland for the
two preceding years). In his testimony before the circuit court, Howard identified the 14 parcels
by the numbers they had in plaintiff’s exhibit No. 2: parcel Nos. 1, 2A, 2B, 5, 6, 8, 10, 11, 33A,
33B, 34A, 34B, 35A, and 35B. (Defendants, apparently referring to a different exhibit, identify
the 14 parcels as parcel Nos. 50 to 56 and 79 to 85 in the Winneburg subdivision. Evidently,
though, the parties mean the same 14 parcels.) Howard testified that in 2011, 2012, and 2013,
crops were grown and harvested on the 14 parcels—either corn or soybeans. Therefore,
plaintiff argues, those parcels met the statutory definition of a farm.
¶ 42 Section 1-60 of the Property Tax Code defines the term “[f]arm” as follows:
Ҥ 1-60. Farm. When used in connection with valuing land and buildings for an
agricultural use, any property used solely for the growing and harvesting of crops; for
the feeding, breeding and management of livestock; for dairying or for any other
agricultural or horticultural use or combination thereof; including, but not limited to,
hay, grain, fruit, truck or vegetable crops, floriculture, mushroom growing, plant or tree
nurseries, orchards, forestry, sod farming and greenhouses; the keeping, raising and
feeding of livestock or poultry, including dairying, poultry, swine, sheep, beef cattle,
ponies or horses, fur farming, bees, fish and wildlife farming. The dwellings and parcels
of property on which farm dwellings are immediately situated shall be assessed as a
part of the farm. Improvements, other than farm dwellings, shall be assessed as a part
of the farm and in addition to the farm dwellings when such buildings contribute in
whole or in part to the operation of the farm. For purposes of this Code, ‘farm’ does
not include property which is primarily used for residential purposes even though some
farm products may be grown or farm animals bred or fed on the property incidental to
its primary use. The ongoing removal of oil, gas, coal or any other mineral from
property used for farming shall not cause that property to not be considered as used
solely for farming.” Id. § 1-60.
¶ 43 In statutory interpretation—a task we perform de novo (see City of Charleston v. System of
Administrative Hearing of the City of Charleston, 2019 IL App (4th) 180634, ¶ 25)—we give
the words of the statute their ordinary meanings unless the statute specially defines words (and
then we give the words in the special definitions their ordinary meanings) (Turner v.
Orthopedic & Shoulder Center, S.C., 2017 IL App (4th) 160552, ¶ 64). Section 1-60 does not
specially define the word “used.” Thus, we give that word its ordinary meaning, which can be
found in a dictionary. See id. To “use” something means to “put [it] into action or service.”
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Merriam-Webster Dictionary 795 (2004). Another dictionary defines “use” as follows when
the word is used with reference to land: “To make use of (land, ground, etc.) by working,
tilling, or occupying.” 19 Oxford English Dictionary 354 (2d ed. 1989).
¶ 44 Zoning unimproved land as residential, platting it as residential, covenanting it as
residential, and marketing it as residential are not the same as putting the land into service, or
occupying it, for residential purposes—especially if, instead of residences, only crops and
timber are on the land. See 35 ILCS 200/1-60 (West 2012). The residential zoning,
covenanting, and marketing of vacant lots envision that the lots shall or will be used for
residential purposes, not necessarily that they are being so used right now. They are not
determinative of present use. Even if the present nonresidential use violates a zoning ordinance
or restrictive covenant, ought is not the same as is. Section 1-60, by its terms, cares only about
is: how the land now is being “used.” See id.¶ 45 The distinction between the ideal or projected use of unimproved land and its present use
is illustrated by Santa Fe Land Improvement Co. v. Illinois Property Tax Appeal Board, 113
Ill. App. 3d 872 (1983). In Santa Fe, the landowner bought some land, zoned as industrial, that
already had “industrial capacity water and sewer lines.” Id. at 873. The landowner built some
roads on the land, and Santa Fe Railway built a railway spur line to serve the land. Id.“[I]ndustrial park sites [were] marketed” (id.), and the landowner even succeeded in selling off
some portions of the land “as industrial sites” (id. at 873-74). The remaining, unsold land, to
the extent it was tillable, was planted in soybeans, corn, and wheat. Id. at 873. But the crop
share leases “contain[ed] provisions for the purchase of crops and conversion of the leaseholds
to industrial use” (id.) as soon as such an industrial opportunity arose. Even though every
tillable acre of the unsold land was farmed and the only buildings on the unsold land were farm
buildings (id. at 873-74), it was obvious that the landowner’s vision for the land was industrial.
¶ 46 Given the substantial steps taken to realize that vision, the issue was “whether the land in
question [was] used for farming.” Id. at 874. The defendants, the Illinois Property Tax Appeal
Board and the Will County Board of Review, argued that the potential and intended use of the
land disqualified the land from an agricultural classification. See id. at 875. It was undisputed,
the defendants observed, that “the property can be used for industrial development sites” and
that the landowner “intends to so use the property.” (Emphases added.) Id. The crop share
leases were written “to facilitate such use.” Id. Such facts, in the defendants’ view,
“compel[led] the conclusion that the land [was] not used solely for the growing and harvesting
of crops.” (Emphasis added.) Id. To be sure, the land was farmed, but the farming was merely
a place-filler, a temporary expedient. There was a primary, underlying use of the land, the
defendants insisted, and that use was industrial.
¶ 47 The appellate court disagreed with the defendants because, despite the expensive
preparations for industrial use, the land presently was used only for the growing and harvesting
of crops. The appellate court wrote:
“We therefore conclude that the present use of land determines whether it receives an
agriculture or nonagricultural valuation. This being the case, the lands in question
which in 1978 were farmed and had not been sold as industrial development sites were
used solely for the growing and harvesting of crops. In so holding, we recognize that
lands which were not farmed in 1978 and which were improved primarily to serve
industrial landowners may appropriately be valued on a nonagricultural basis.
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As we have concluded the property in question was used solely for the growing and
harvesting of crops, it follows that it also was devoted primarily to the raising and
harvesting of crops.” Id. at 875-76.
Thus, it is not the landowner’s ambition for the land, the highest and best use of the land, or
the preparation for future use that counts when determining whether the land deserves an
agricultural valuation. What counts, instead, is the present use of the land.
¶ 48 The statute designates “the growing and harvesting of crops” as a bona fide agricultural
use—period. 35 ILCS 200/1-60 (West 2012). The statute does not require that the landowner
have a particular motive in cultivating the land or that the landowner have a long-term grand
plan that is agricultural. All the statute requires is “[f]arm” activities, such as growing and
harvesting crops, cultivating orchards, or raising livestock, poultry, or bees. See id. That is it.
The statute does not require a crop share lease. Nor does the statute require that the crops be
grown and harvested for the landowner’s profit. Nor does the statute require the lack of a desire
to sell the land to housebuilders and a lack of preparations toward that end. Nor does the statute
require any particular zoning classification. Nor does the statute require that the land be free
of restrictive covenants or nonadjacent to dwellings. Nor does the statute require that the farm
activities be permissible under any existing zoning ordinances and restrictive covenants. None
of those conditions are in the text of section 1-60. “We must not depart from the plain language
of the [statute] by reading into it exceptions, limitations, or conditions that conflict with the
express legislative intent.” Barnett v. Zion Park District, 171 Ill. 2d 378, 389 (1996).
¶ 49 The express legislative intent is the statute as written, which unconditionally equates
farming with the growing and harvesting of crops. See 35 ILCS 200/1-60 (West 2012). It
appears to be undisputed that the 14 parcels were in cultivation from 2011 to 2013, they had
no dwelling on them, and they were not appurtenant to any dwelling. Those parcels were used
only for the growing and harvesting of corn and soybeans. Although the 14 parcels were
marketed as sites suitable for the construction of single-family residences and although some
preparations had been made for their future potential use as residential sites, the parcels were
not yet used for residential purposes. No one was living on any of the 14 parcels. No one had
built a garage on them. No one had erected a swing set or a swimming pool on them or
otherwise was using them as an extended backyard. The 14 parcels were used only to grow
and harvest soybeans and corn.
¶ 50 This is not to deny that, despite the growing of crops on a parcel, the parcel can have a
primary nonagricultural use. A small garden of sweet corn behind a house does not make a
farm. Also, plants typically regarded as crops can serve a different purpose. For example, in
Senachwine Club v. Putnam County Board of Review, 362 Ill. App. 3d 566, 568-69 (2005), a
duck hunting club planted corn, buckwheat, and sudax on its land—all plants that “[could] be
grown and harvested extensively for profit or subsistence” (Merriam-Webster’s Collegiate
Dictionary 276 (10th ed. 2000) (definition of “crop”)). The purpose of planting those crops,
however, was to create a habitat attractive for ducks. Senachwine Club, 362 Ill. App. 3d at 569.
The club allowed the crops to remain in the field, or the club intentionally flooded the crop
area. Id. Despite the planting of the crops, the primary use of the land was recreational. See id.The land had no agricultural use. The club never harvested the corn, buckwheat, and sudax any
more than the club would have harvested cattails. See id. There was no “growing and
harvesting of crops.” (Emphasis added.) See 35 ILCS 200/1-60 (West 2012).
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¶ 51 By contrast, in this case, the only present use of the 14 parcels from 2011 to 2013 was the
growing and harvesting of crops—activities that are statutory indicia of a “[f]arm.” See id. The
cropland, as far as we know, was not used as commercial hunting grounds.
¶ 52 2. Conventional Farming Versus Intensive Farming
¶ 53 Defendants contend that because the 14 parcels were not “intensively farmed” and because
none of the lots were more than five acres in size, they were ineligible to be assessed as
farmland. Defendants base this contention on an interpretation of the penultimate sentence of
section 1-60 by the Illinois Department of Revenue (Department): “For purposes of this Code,
‘farm’ does not include property which is primarily used for residential purposes even though
some farm products may be grown or farm animals bred or fed on the property incidental to its
primary use.” Id.¶ 54 The Department has a duty to “issue guidelines and recommendations for the valuation of
farmland to achieve equitable assessment within and between counties.” Id. § 10-115. To that
end, the Department issued Publication 122, which suggests a method for “mak[ing] primary-
use determinations on parcels that contain both farm and residential uses.” Ill. Dep’t of
Revenue, Publication 122, Instructions for Farmland Assessments, at 5 (Jan. 2013), https://
web.archive.org/web/20121030045517/http:/tax.illinois.gov/Publications/Pubs/Pub-122.pdf
[https://perma.cc/56BN-PQXV] (Publication 122). The key, the Department explains, is
determining whether the farm use is “intensive” or “conventional.” Once the assessor makes
that determination, he or she should compare the size of the farmed portion of the parcel to the
size of the residential portion of the parcel:
“According to this guideline, the primary use of a parcel containing only intensive
farm and residential uses is residential unless the intensively-farmed portion of the
parcel is larger than the residential portion of the parcel. For purposes of this guideline,
‘intensive farm use’ refers to farm practices for which the per acre income and
expenditures are significantly higher than in conventional farm use. Intensive farm use
is typically more labor-intensive than conventional farm use. According to this
guideline, the primary use of a parcel containing only conventional farm and residential
uses is residential unless the conventionally-farmed portion of the parcel is larger than
the residential portion of the parcel and it is not less than five acres in area. These
presumptions may be rebutted by evidence received that the primary use of the parcel
is not residential. For purposes of this guideline, ‘conventional farm use’ refers to the
tending of all major and minor Illinois field crops, pasturing, foresting, livestock, and
other activities associated with basic agriculture.” Id.
¶ 55 Defendants’ invocation of this passage from Publication 122 makes no sense. In none of
the 14 parcels was there a farmed “portion” as opposed to a residential “portion.” See id. One
could not point to any of the 14 parcels and say that so many square feet were planted in
soybeans and so many square feet were taken up by a house and yard and then compare the
sizes of the two areas. One could not legitimately say that the 14 lots were “primarily used for
residential purposes even though some farm products may be grown *** on the property
incidental to its primary use.” (Emphasis added.) 35 ILCS 200/1-60 (West 2012). The entire
area of those lots, except for timberland, was taken up by the growing and harvesting of crops.
Therefore, denying the 14 parcels a “[c]ropland” classification (id. § 10-125) for the tax year
2013 was a clear error. See AFM Messenger Service, Inc. v. Department of Employment
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Security, 198 Ill. 2d 380, 391 (2001); Santa Fe, 113 Ill. App. 3d at 875-76.
¶ 56 C. “Other Farmland”
¶ 57 The parties stipulated that the parcels in Eagle’s Nest subdivision, Fox Run subdivision,
and Deer Trail subdivision were substantially timberland. Howard testified that there had been
no residential or commercial use of those parcels—they were idle woodland, nothing more.
His testimony in that respect was uncontradicted. Hence, plaintiff argues, the parcels in those
three subdivisions should have been assessed as “[o]ther farmland.” 35 ILCS 200/10-125(c)
(West 2012).
¶ 58 Under section 10-125 of the Property Tax Code, the term “[o]ther farmland” must be
“defined according to U.S. Census Bureau definitions in use during [the] assessment year.” Id.§ 10-125. The Department defines “[o]ther farmland” to include “woodland” (Publication 122,
supra, at 1). The complete definition reads as follows: “Other farmland includes woodland
pasture; woodland, including woodlots, timber tracts, cutover, and deforested land; and farm
building lots other than homesites.” Id. This definition of “other farmland,” the Department
assures the reader, “compl[ies] with [the] requirement” that “ [‘]other farmland[’] *** be
defined according to US Bureau of Census definitions.” Id. None of the parties have ever
questioned the Department in that respect.
¶ 59 Nevertheless, the circuit court found the definition of “[o]ther farmland” (35 ILCS 200/10-
125(c) (West 2012)) to be unmet. The court’s reason was that “the parcels with growing crops
[did] not constitute a farm” and, “[w]ithout a farm, there [could not] be ‘other farmland.’ ” As
we have discussed, however, there was a “[f]arm” (id. § 1-60), and there was “[c]ropland” (id.
§ 10-125(a)), in addition to the timberland. Fourteen parcels, to the extent they were
unwooded, were “used solely for the growing and harvesting of crops.” Id. § 1-60.
¶ 60 Defendants note that, even if some of plaintiff’s parcels were cropland during the 2013 tax
year, the 70 parcels in Eagle’s Nest subdivision, Fox Run subdivision, and Deer Trail
subdivision fail to meet the definition of “ ‘other farmland’ ” in section 10-150 of the Property
Tax Code (id. § 10-150) because they were not being managed under a forestry management
plan. That section provides as follows:
Ҥ 10-150. Property under forestry management plan. In counties with less than
3,000,000 inhabitants, any land being managed under a forestry management plan
accepted by the Department of Natural Resources under the Illinois Forestry
Development Act [(525 ILCS 15/1 et seq. (West 2012))] shall be considered as ‘other
farmland’ and shall be valued at 1/6 of its productivity index equalized assessed value
as cropland. In counties with more than 3,000,000 inhabitants, any land totalling 15
acres or less for which an approved forestry management plan was in effect on or before
December 31, 1985, shall be considered ‘other farmland’. The Department of Natural
Resources shall inform the Department and each chief county assessment officer of
each parcel of land covered by an approved forestry management plan.” Id.
The parties stipulated that the “wooded parcels do not qualify for reduced assessments for
being enrolled in an IDNR Forestry Management Plan under Section 10-150 of the Property
Tax Code.” Consequently, defendants dispute that the wooded parcels qualify as “other
farmland.”
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¶ 61 Section 10-150 does not say, however, that only timberland being managed under a forestry
management plan shall be considered as “other farmland.” Instead, section 10-150 says that
land being managed under a forestry management plan shall be considered as “other farmland.”
See id. There is a difference. Land that would not qualify as “other farmland” under section
10-125 can qualify as “other farmland” under section 10-150.
¶ 62 How could land qualify as “other farmland” under section 10-150 but not under section 10-
125? The answer is that not all the land being managed under a forestry management plan
necessarily would meet any of the descriptions in the United States Census Bureau’s definition
of “other farmland.” Up to 10% of the land being managed under a forestry management plan
can be “[l]and not supporting forest or growing timber” (provided that “up to 10% of Plan
acreage *** is a compatible conservation use or important to conservation and timber
management and occurs as an integrated, inseparable[,] or adjacent natural resource”). 17 Ill.
Adm. Code 1537.5(a) (2017). So, if 90 acres of timberland merged into 10 acres of land that
was too wet or swampy for trees and if the 100 acres were being managed under a forestry
management plan accepted by the Illinois Department of Natural Resources, the 10 acres
would qualify as “other farmland” under section 10-150. That would be the case even if the 10
acres failed to meet the definition of “other farmland” in section 10-125 (which adopts the
United States Census Bureau’s definition). That is, even if the 10-acre swamp were not a
woodland pasture, a woodland, a woodlot, a timber tract, a cutover, deforested land, or a farm
building lot (see Publication 122, supra, at 1), it nevertheless would qualify as “other farmland”
under section 10-150. In that way, section 10-150 adds to section 10-125 instead of taking
away from it.
¶ 63 A contrary interpretation would put the two statutory sections in conflict. By accepting
defendants’ interpretation of section 10-150—by reading section 10-150 as meaning that only
land being managed under a forestry development plan qualifies as “other farmland”—we
would put that section on a collision course with section 10-125. On the one hand, section 10-
125 would say that “farm building lots other than homesites” qualify as “other farmland.” Id.
On the other hand, section 10-150 would say that farm building lots do not qualify because
“[l]ands used as *** commercial farmland *** are not eligible for enrollment” (17 Ill. Adm.
Code 1537.5(a)(1) (2017)) and “[n]o acre on which a permanent building is located shall be
included in calculations of acreage for the purpose of determining eligibility” (id. § 1537.5(b)).
On the one hand, section 10-125 would say that “deforested land” qualifies as “other
farmland.” Publication 122, supra, at 1. On the other hand, section 10-150 would say that “[a]
minimum of 90% of lands designated in the Plan must physically and biologically support
forests and timber.” 17 Ill. Adm. Code 1537.5(a) (2017). On the one hand, section 10-125
would say that a “timber tract[ ]” of any size, left to its own devices, qualifies as “other
farmland.” Publication 122, supra, at 1. On the other hand, section 10-150 would say that the
timber tract must be big enough and must be skillfully managed. It must be “at least 10
contiguous acres of land that is systematically managed for the production of timber and
natural resource conservation.” 17 Ill. Adm. Code 1537.5(b) (2017).
¶ 64 “[I]f there be two affirmative statutes or two affirmative sections in the same statute, on
the same subject, the one does not repeal the other if both may consist together, and the courts
will seek for such a construction as will reconcile them.” Schneider v. Board of Appeals, 402
Ill. 536, 545 (1949). By construing section 10-150 as meaning merely what it says—that “land
being managed under a forestry management plan *** shall be considered as ‘other farmland’ ”
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(35 ILCS 200/10-150 (West 2012))—and as not meaning what it does not say—that only such
land shall be considered as “other farmland”—we easily reconcile section 10-125 (id. § 10-
125) and section 10-150 (id. § 10-150).
¶ 65 Because we reject defendants’ interpretation of section 10-150 and because the circuit
court’s denial of an “other farmland” classification relied on the mistaken premise that there
was no farm, we hold that the parcels in Eagle’s Nest subdivision, Fox Run subdivision, and
Deer Trail subdivision were “other farmland.” The circuit court’s finding to the contrary was
clearly erroneous. See AFM, 198 Ill. 2d at 391.
¶ 66 Given our holding that those three subdivisions were “other farmland” in 2011, 2012, and
2013, we agree with the circuit court—though for a different reason—that they were not
“wasteland.” See 35 ILCS 200/10-125(d) (West 2012). The Department defines “[w]asteland”
as “that portion of a qualified farm tract that is not put into *** other farmland.” Publication
122, supra, at 1. Eagle’s Nest subdivision, Fox Run subdivision, and Deer Trail subdivision
were “other farmland” and, hence, not wasteland. See id.
¶ 67 D. The Developer’s Exemption
¶ 68 The circuit court found the developer’s exemption in section 10-30 of the Property Tax
Code (35 ILCS 200/10-30 (West 2012)) to be unavailable to plaintiff because the property
“was sold several times since it was platted and developed” and plaintiff was “a subsequent
purchaser of the property, not the developer.”
¶ 69 In our de novo interpretation of section 10-30 (see City of Charleston, 2019 IL App (4th)
180634, ¶ 25), particularly subsection (c) (35 ILCS 200/10-30(c) (West 2012)), we agree with
the circuit court that a sale of the property after it is platted and developed ends the developer’s
exemption. That conclusion flows from the plain language of section 10-30, which provides as
follows:
Ҥ 10-30. Subdivisions; counties of less than 3,000,000.
(a) In counties with less than 3,000,000 inhabitants, the platting and subdivision of
property into separate lots and the development of the subdivided property with streets,
sidewalks, curbs, gutters, sewer, water and utility lines shall not increase the assessed
valuation of all or any part of the property, if:
(1) The property is platted and subdivided in accordance with the Plat Act [(765
ILCS 205/0.01 et seq. (West 2012))];
(2) The platting occurs after January 1, 1978;
(3) At the time of platting the property is in excess of 5 acres; and
(4) At the time of platting the property is vacant or used as a farm as defined in
Section 1-60.
(b) Except as provided in subsection (c) of this Section, the assessed valuation of
property so platted and subdivided shall be determined each year based on the estimated
price the property would bring at a fair voluntary sale for use by the buyer for the same
purposes for which the property was used when last assessed prior to its platting.
(c) Upon completion of a habitable structure on any lot of subdivided property, or
upon the use of any lot, either alone or in conjunction with any contiguous property,
for any business, commercial or residential purpose, or upon the initial sale of any
platted lot, including a platted lot which is vacant: (i) the provisions of subsection (b)
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of this Section shall no longer apply in determining the assessed valuation of the lot,
(ii) each lot shall be assessed without regard to any provision of this Section, and
(iii) the assessed valuation of the remaining property, when next determined, shall be
reduced proportionately to reflect the exclusion of the property that no longer qualifies
for valuation under this Section. Holding or offering a platted lot for initial sale shall
not constitute a use of the lot for business, commercial or residential purposes unless a
habitable structure is situated on the lot or unless the lot is otherwise used for a business,
commercial or residential purpose.
(d) This Section applies before the effective date of this amendatory Act of the 96th
General Assembly and then applies again beginning January 1, 2012.” (Emphasis
added.) Id. § 10-30.
¶ 70 It is undisputed that plaintiff bought all of the platted lots in question after previous owners
did the platting and development. (By “development,” we mean the electrical service boxes,
water mains, and telephone lines.) In fact, when plaintiff bought the property in the sheriff’s
sale of 2008, the property already had been sold by previous developers several times. Before
plaintiff’s ownership, the “initial sale” of the platted lots (whenever that “initial sale” was)
should have ended the developer’s relief. See id. § 10-30(c). As the Department explains:
“When any sale occurs, the preferential assessment is removed. It does not matter that
one developer sold land to another developer.
***
If the entire development is sold to another developer, then that entire development
no longer qualifies for the preferential assessment. This applies even if no habitable
structures have been built or the area has not been used for any business, commercial,
or residential purpose.” Illinois Department of Revenue, Publication 134, Developer’s
Exemption, Property Tax Code, Section 10-30, at 3 (Mar. 2016), https://www2.illinois.
gov/rev/research/publications/pubs/Documents/pub-134.pdf, [https://perma.cc/FY7L-
HKK9] (Publication 134).
¶ 71 Plaintiff argues that, even though all the platted parcels have been sold several times over,
the developer’s exemption continues to be available “until and unless there is a change in the
use of the property from farmland to residential, business[,] or commercial use.” (Emphasis in
original.) In support of that argument, plaintiff cites Paciga v. Property Tax Appeal Board, 322
Ill. App. 3d 157, 162-63 (2001), in which the appellate court concluded as follows: “[T]he
language of subsection 10-30(c), interpreted with the aid of the legislative purpose, reveals that
no change in valuation will occur until a habitable structure is constructed on one of the lots or
one of the lots is used for any business, commercial, or residential purpose.”
¶ 72 We agree with that statement in Paciga, as far as it goes. But Paciga overlooks that an
initial sale likewise can change the valuation. “[U]pon the initial sale of any platted lot,
including a platted lot which is vacant,” the preferential assessment “shall no longer apply in
determining the assessed valuation of the lot.” 35 ILCS 200/10-30(c) (West 2012). Thus, if a
platted lot is sold, the lot no longer receives the preferential assessment. If all the platted lots
are sold, they no longer receive the preferential assessment.
¶ 73 In this case, all of the platted lots in question were sold after they were platted and
developed. “If the entire development is sold to another developer, then that entire
development no longer qualifies for the preferential assessment.” Publication 134, supra, at 3.
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Therefore, we find no clear error in the circuit court’s denial of a developer’s exemption. See
id.; AFM, 198 Ill. 2d at 391.
¶ 74 III. CONCLUSION
¶ 75 The circuit court was right to grant the section 2-619 motion to dismiss count II of the
amended complaint. Plaintiff is collaterally estopped from asserting the enforceability of the
settlement agreement. The decision on count I, however, should have been in plaintiff’s
favor—not because plaintiff is entitled to a developer’s exemption; the circuit court is correct
that the initial sale of the lots, after their development, ended that exemption. Rather, plaintiff
should have prevailed on count I because the only use to which the land was put in 2011, 2012,
and 2013 was the growing and harvesting of crops. It is true that the land had been prepared,
to some extent, for future residential use. But the land presently was used only as farmland,
not for residential purposes, and present use is what counts. Therefore, we affirm in part and
reverse in part the circuit court’s judgment.
¶ 76 Affirmed in part and reversed in part.
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