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SIXTH DIVISION

June 30, 2004

PRESIDING JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Plaintiff, the Board of Education of Dolton School District 149 (the Board), appeals from anorder of the circuit court directing it to build sidewalks or walkways on land owned by the ThorntonTownship Road District. The Board contends that the circuit court's order violates the separationof powers doctrine, was issued without any authority or jurisdiction, and lacks any legal or factualbasis. The Board also contends that none of the requirements for the entry of injunctive relief weremet in this case. For the reasons that follow, we reverse the judgment of the circuit court.

Dolton School District 149 planned to construct a new elementary school building on about15.4 acres of property at the northeast corner of the intersection of 158th Street and Clyde Avenuein Thornton Township. The school was scheduled to open in January 2004.

On October 29, 2002, the general contractor responsible for constructing the school andrelated improvements applied for a permit to perform construction activities in the 158th Street andClyde Avenue rights-of-way that bordered District 149's property. The application requestedpermission to work on the rights-of-way from November 4, 2002, to August 1, 2003. George Miller,the highway commissioner of the Thornton Township Road District, issued a permit on March 27,2003. The permit indicated that work was permitted through September 2003.

Relying on the probability of the issuance of the permit, and later, the actual issuance of thepermit, Dolton School District 149 contracted for and proceeded to pay for about $500,000 worthof improvements to the 158th Street and Clyde Avenue rights-of-way that bordered its property. OnNovember 7, 2003, Miller appeared at the construction site and ordered all workers to cease workon the Clyde Avenue and 158th Street rights-of-way. According to Frank Cordetti, an employee ofthe architecture firm that designed the school, Miller stated he would not allow an extension of thepermit for the completion of the improvements to the rights-of-way until District 149 paid him$25,000.

On November 10, 2003, the Board of Education of Dolton School District 149 filed a three-count complaint for declaratory and injunctive relief, naming Miller as the defendant. In count I, theBoard asserted that as a public entity, District 149 could only expend taxpayer funds upon approvalby a vote of the Board. The Board alleged that the $25,000 payment demanded by Miller wasunconstitutional, illegal, unreasonable, arbitrary, and capricious because it was never approved bythe Board and did not meet the "specifically and uniquely attributable to" test that is applied toevaluate the legality of conditions imposed for governmental permits. In count II, the Board allegedthat because District 149 had incurred expenditures and obligations under the permit issued by Milleron March 27, 2003, it had a vested property right to complete the work authorized by the permit. The Board contended that Miller's demand for a $25,000 payment and refusal to extend the permitto allow completion of the approved improvements unconstitutionally deprived District 149 of avested property right. Finally, in count III, the Board alleged that Miller had no authority to frustrateor control District 149's governmental purposes of providing facilities for the education of childrenby demanding $25,000 as a condition for the extension of the permit for the completion ofimprovements to the 158th Street and Clyde Avenue rights-of-way.

On November 14, 2003, the Board filed a motion for a temporary restraining order preventingMiller from interfering in the completion of the construction improvements to the 158th Street andClyde Avenue rights-of-way. In response, Miller filed two unauthenticated documents. The firstwas an untitled, hand-written four-page document that was not dated or signed. It provided, inrelevant part, as follows:

"The school to be constructed for Dist. 149 located @ 157th& Clyde in the unincorp. Area of Thornton Twsp. will impact the areaw/ substantial expenses, that are not being covered.

In agreeing to allow permitee the right of way for ditches &driveways & new road construction, the Highway Commissionerrequests & asks certain considerations.

9. The School Dist. will allocate the sum of $25,000 cash tothe Thornton Township Road & Bridge, for any future use towardstreet improvements, as the Highway Commissioner deems necessary. Such monies to be held in an escrow acct by the HighwayCommissioner."

The second unauthenticated document filed by Miller was a letter to Miller's attorney fromthe Board's attorney, dated April 3, 2003. The letter included spaces for signatures on behalf of the"Thornton Township Highway Commissioner" and "Dolton School District 149" and a space for thedate "agreed to," but those spaces were left blank. The letter included the following paragraph:

"The parties have agreed that in lieu of extending the walkingpath (at the west side of Chappel Avenue) south to the Village Greensand Sand Ridge Condominiums with a new asphalt path, the SchoolDistrict will allocate Twenty-five Thousand and 00/100 Dollars($25,000.00) from the contract sum to the Highway Commissionerfor future use towards street improvements as he deems necessary,with such allocation to be held in an escrow account."

On November 14, 2003, the circuit court entered an order on the motion for a temporaryrestraining order, directing that construction of the road improvements should not be stopped byMiller. The court enjoined Miller from preventing or interfering with the construction "until ahearing on the extension of the temporary restraining order scheduled for November 25, 2003."

On November 24, 2003, the Board filed a memorandum challenging the significance of thedocuments Miller filed with the court. The Board also asserted that because it had never approvedor authorized a payment of $25,000 to Miller, no such payment was owed. In support, the Boardattached affidavits from Beverly Dohman, the Board clerk, who stated that nothing in the minutesof the Board meetings indicated that the Board approved a $25,000 payment to Miller; from DarleneGray Everett, the Board president, who stated that the April 3, 2003, letter was never presented toher or approved by her; and from Traci Brown, the superintendent of Dolton School District 149,who stated that the April 3, 2003, letter was never presented to her and that the letter was neverplaced on a meeting agenda for consideration or approval by the Board. Finally, the Board arguedthat Miller's demand for $25,000 for future street improvements "as he deems necessary" was anillegal permit condition because it was not specifically and uniquely attributable to District 149'sconstruction of a school.

Also on November 24, 2003, Miller filed a written response to the Board's motion for atemporary restraining order in which he asserted that he had sought the $25,000 for the constructionof walkways or sidewalks near the new school and that such walkways around the school werereasonable, sought for the safety of students, and "specifically and uniquely attributable to theBoard's activities." Miller explained that District 149 intended to install sidewalks only on its ownproperty immediately surrounding the new school. Miller urged that for the safety of the students,sidewalks should be installed on adjacent property. In an accompanying affidavit, Miller stated thatthese additional sidewalks would be located on property owned by the Thornton Township RoadDistrict.

Miller further alleged in his response that "conditions for the permit have been undernegotiation between the parties for many months and the attorney for [the Board] has specificallyoffered, in writing, to pay $25,000 into an escrow account 'in lieu of extending the walkway path'which was suggested by [Miller] as a condition for the permit." In support, Miller attached the hand-written four-page document noted above, which Miller identified as a rider to the construction permitthat he wrote suggesting conditions for the permit, and the above-noted April 3, 2003, letter toMiller's attorney from the Board's attorney. Miller asked the court to deny the Board's motion fora temporary restraining order outright or, in the alternative, to deny the motion until the Board agreedor was ordered to install walkways "for the safety of the children"; to find that the additionalwalkways are a reasonable and necessary condition for the permit to build the new school; and toorder the school to install the additional walkways.

On November 25, 2003, the circuit court entered two separate orders based on the writtenpleadings and affidavits. In the first, the court ordered that the temporary restraining order enteredon November 14, 2003, be continued until the completion of the improvements on the 158th Streetand Clyde Avenue rights-of-way and enjoined Miller from preventing or interfering with theconstruction of those improvements. In the second order, the court directed as follows:

"1. The plaintiff is ordered to build sidewalks or walkways[:]

(1) on the east side of Clyde Avenue from the end of the plaintiff'sproperty north to 154th Street; and (2) on the north side of 158thStreet from the end of the plaintiff's property east to Paxton Avenue.

2. The order and finding of the court is based on public healthand safety.

3. The issue of the ultimate responsibility for payment for the

sidewalks referenced in par. 1 above will be determined at a later datebased on further pleadings.

[4.] The case is continued for further status to 9:45 a.m. onJanuary 21, 2004."

On December 1, 2003, the Board filed a notice of interlocutory appeal from the circuit court'ssecond order of November 25, 2003, citing Illinois Supreme Court Rules 307(a) and 307(d) (188 Ill.2d Rs. 307(a), (d)). On December 17, 2003, this court entered an order determining that ourjurisdiction attaches pursuant to Rule 307(a)(1), which provides that an appeal may be taken froman interlocutory order granting, modifying, refusing, dissolving, or refusing to dissolve or modifyan injunction. 188 Ill. 2d R. 307(a)(1).

Miller has not appealed the entry of the circuit court's first order of November 25, 2003,which continued the temporary restraining order until the completion of the improvements on the158th Street and Clyde Avenue rights-of-way and enjoined Miller from preventing or interferingwith the construction of those improvements. At issue in the instant case is the Board's appeal fromthe second order entered by the circuit court directing the Board to build sidewalks and walkways.

The parties disagree on the proper standard of review in this case. Miller argues that thestandard of review is abuse of discretion. See Lucas v. Peters, 318 Ill. App. 3d 1, 15 (2000). TheBoard, in contrast, asserts that the facts are undisputed and that therefore our review is de novo. SeeHawrelak v. Marine Bank, Springfield, 316 Ill. App. 3d 175, 179 (2000). We note that this court hasapplied the de novo standard of review in cases where a trial court ruled on a preliminary injunctionwithout making any findings as to factual issues. See, e.g., Peregrine Financials and Securities v.Hakakha, 338 Ill. App. 3d 197, 202 (2003); LAS, Inc. V. Mini-Tankers, USA, Inc., 342 Ill. App. 3d997, 1001 (2003). Here, the circuit court found that sidewalks should be built "based on publichealth and safety." While this may not be a classic finding of fact, we cannot say that it is adetermination of law. Accordingly, we review the circuit court's order for abuse of discretion.

On appeal, the Board contends that the circuit court's order requiring it to build sidewalksor walkways on property which the Board does not own violates the separation of powers doctrine,was issued without any authority or jurisdiction, and lacks any legal or factual basis. The Board alsocontends that the order was in error because Miller failed to establish any of the requirements forinjunctive relief. We address these arguments in turn.

The circuit court specified that its order requiring the Board to build sidewalks or walkwayson land owned by the Thornton Township Road District was "based on public health and safety." However, the authority to determine appropriate public policy is vested in the legislature, not thecourts. Morris v. William L. Dawson Nursing Center, Inc., 187 Ill. 2d 494, 499 (1999); ChampaignTownship v. County of Champaign, 331 Ill. App. 3d 582, 590 (2002). This court has explained thereason that courts should be very cautious in establishing public policy:

"Courts are ill equipped to determine what the public policy shouldbe. Seldom are all interested parties, all facts, and all issues presentin a single case, where the court can rationally balance all the factorsnecessary to establish a policy good for society. Further, establishingpublic policy may entail the balancing of political interests. This isa function of the legislature, not the courts." Dixon Distributing Co.v. Hanover Insurance Co., 244 Ill. App. 3d 837, 852 (1993).

It is through the use of the police power that a government may mandate publicimprovements such as the one at issue in this case. See Village of Algonquin v. Tiedel, 345 Ill. App.3d 229, 234-35 (2003) (compelling homeowners to connect to municipal water supply). However,not all branches of the government may exercise the police power: "It is for the legislative branchof the government - not the judicial branch - to determine when and where conditions existrequiring an exercise of the police power to meet existing evils." County of Knox ex rel. Mastersonv. Highlands, L.L.C., 188 Ill. 2d 546, 559 (1999), citing 11 Ill. L. & Prac. Constitutional Law