Find Legal Information

Third Division
June 30, 2003

No. 1-02-0363

JUSTICE HALL delivered the opinion of the court:

On September 28, 1998, defendant-appellant, the Village of Burr Ridge(Village), adopted ordinances numbers 854, 855, and 856, establishing a taxincrement financing (TIF) district, along with a redevelopment plan andproject, for approximately 85 acres of vacant land (Subject Property) locatedwithin the Burr Ridge Corporate Park in Burr Ridge, Illinois. It is undisputedthat this tract of land is located in one of the wealthiest communities inIllinois.

On February 16, 1999, plaintiff-appellee, the Pleasantdale SchoolDistrict No. 107 (School District), filed a complaint for injunctive anddeclaratory relief against the Village. In the complaint, the School Districtclaimed that the Village's ordinances did not comply with the provisions of theTax Increment Allocation Redevelopment Act (TIF Act) (65 ILCS 5/11-74.4-1 etseq. (West 1994)), because the Village's legislative findings made in theordinances that the statutory criteria necessary to establish the SubjectProperty as a blighted area were met was erroneous and not supported in fact. The School District claimed that if the TIF ordinances were implemented and theattendant redevelopment plan and project allowed to proceed, the SchoolDistrict and other overlying taxing districts would be irreparably harmed bythe illegal and improper diversion of tax revenues from their taxing districts. The School District sought an order declaring that the ordinances were void asa matter of law and an injunction preventing the Village from implementing theordinances and selling bonds or undertaking any obligations or makingexpenditures pursuant to the ordinances.

On March 15, 2000, the trial court entered an order denying the Village'smotion for summary judgment. Thereafter, on September 17, 2001, the trialcourt entered an order granting the School District's motion for summaryjudgment on the ground that the Subject Property did not contain any of theblighting factors necessary to qualify it for TIF designation under the TIFAct. The trial court subsequently denied the Village's motion for rehearing toallow introduction of alleged new facts. The Village now appeals from thetrial court's entry of summary judgment in favor of the School District andfrom denial of its motion for rehearing.

On appeal, the Village contends that: (1) the trial court erred infinding that the Subject Property did not contain any of the blighting factorsnecessary to qualify it for TIF designation under the TIF Act; (2) the trialcourt's "but-for" finding was in error; (3) in ruling on the School District'smotion for summary judgment, the trial court erred by considering evidence thatafter the Village adopted the ordinances establishing the TIF district, two newdevelopments were commenced in the proposed TIF district without the aid of TIFfinancing; and (4) the trial court erred by denying the Village's motion forrehearing to introduce newly discovered evidence. For the reasons that follow,we affirm.

FACTUAL BACKGROUND

The relevant facts are not in dispute. The Subject Property consists ofapproximately 85 acres of vacant land located immediately south of Interstate55 and east of the County Line Road interchange, which divides Cook and DuPageCounties. The Village of Burr Ridge lies in both counties, but the SubjectProperty lies solely in Cook County. There is no dispute that establishing theSubject Property as a TIF district would enable the Village to more rapidlydevelop the Subject Property by allowing the Village to provide variousfinancial incentives to selected developers to offset the higher Cook Countycommercial real estate taxes.

Prior to the present litigation, the Village had been advised that theSubject Property did not qualify as a TIF district. Steven Stricker, theVillage administrator, sent a memo dated December 8, 1995, to the Villagepresident and board, stating that he had spoken with Phil McKenna from theconsulting firm of Kane, McKenna & Associates in order to "once again discussthe possibility of implementing a T.I.F. District in the Burr Ridge CorporatePark." In the memo, Stricker informed the Village that, "[a]fter reviewing thestatutes we have determined once and for all that the Village of Burr Ridgewould not be eligible to implement a T.I.F. District on the Corporate Parkproperty."

Approximately two years later, Stricker sent a memo dated February 13,1998, to the Village's economic development committee, informing the committeethat developer Richard A. Barton sought to develop a Radisson Hotel andConference Center (Burr Ridge Inn) on the Subject Property. The memo statedthat Barton and his attorney had suggested that due to the tax disparitiesbetween Cook and DuPage Counties, the Village should look into the possibilityof qualifying the Subject Property as a TIF district. The memo went on toremind the committee that, "[o]n at least three occasions over the past 8years, the Village of Burr Ridge has looked seriously into the possibility ofcreating a Tax Increment Financing District for the Burr Ridge Corporate Parkand, on all three occasions, the consultants hired to look into this issuedetermined that the Village did not qualify. The last discussion of this issuewas in the fall of 1995."

Thereafter, the economic development committee recommended that theVillage consider creating a TIF district for the Subject Property in order tocreate parity between Cook and DuPage Counties real estate taxes. Thecommittee generated a chart illustrating the inequities of the tax structurebetween commercial property in Cook County and DuPage County, showing thatbusinesses locating in Cook County pay almost double in taxes what they wouldpay in DuPage County. On April 13, 1998, the Village accepted Barton's requestand awarded Camiros, Ltd., a contract to prepare a TIF eligibility study and aredevelopment plan and project for the Subject Property.

The Camiros eligibility study was undertaken in April and May 1998, andcompleted in July 1998. The Camiros study found that pursuant to the TIF Act,growth and development of the Subject Property had been impeded by fourblighting factors: diversity of ownership, flooding, obsolete platting, and taxdelinquencies. After reviewing the Camiros study, the Village's legal counselsent a letter dated July 10, 1998, to the Village president stating, "[i]n ouropinion, this is a 'good' TIF in that it will encourage desired developmentwhich will be in the best interests of the Village and all of the underlyingtaxing districts. However, at the same time it is our opinion that this is a'weak' TIF in terms of meeting the required statutory criteria. The reason forthis opinion is that compliance with each of the statutory criteria identifiedin the Camiros report appears to be rather marginal."

On August 3, 1998, a joint review board hearing was convened to determinewhether the four blighting factors identified in the Camiros eligibility studywere present on the Subject Property. The hearing was attended byrepresentatives from some of the taxing districts that would be affected by theproposed TIF. At the conclusion of the hearing, the board found by a formalvote that the eligibility factors necessary to establish the Subject Propertyas blighted under the TIF Act were not present.

On September 14, 1998, a public hearing was held regarding the proposedTIF district. On September 28, 1998, the board of trustees of the Villagevoted to adopt ordinances numbers 854, 855, and 856, establishing a TIFdistrict and a redevelopment plan and project for the Subject Property.

ANALYSIS

I. TIF Act - Statutory Blighting Factors

On January 10, 1977, the TIF Act became effective in Illinois. See Peopleex rel. City of Canton v. Crouch, 79 Ill. 2d 356, 360, 403 N.E.2d 242 (1980). The Illinois legislature adopted the TIF Act to provide municipalities with themeans to eradicate blighted conditions by developing or redeveloping areas soas to prevent the further deterioration of the tax bases of these areas and toremove the threat to the health, safety, morals, and welfare of the public thatblighted conditions present. 65 ILCS 5/11-74.4-2(a),(b),(c) (West 1994); Peopleex rel. City of Canton, 79 Ill. 2d at 360; Castel Properties, Ltd. v. City ofMarion, 259 Ill. App. 3d 432, 433-34, 631 N.E.2d 459 (1994); Board of Educationof Community High School District No. 218 v. Village of Robbins, 327 Ill. App.3d 599, 602, 765 N.E.2d 449 (2001). The TIF Act enables a municipality toeliminate blighted conditions existing within its boundaries by allowing themunicipality to collect real property tax increment revenues from local taxingdistricts such as schools, park, sanitary and fire districts located within theTIF district and divert these revenues to fund TIF development projects orother ancillary expenses within the TIF district. 65 ILCS 5/11-74.4-2(a), (c),11-74.4-3(t) (West 1994); People ex rel. City of Canton, 79 Ill. 2d at 369;Henry County Board v. Village of Orion, 278 Ill. App. 3d 1058, 1060, 663 N.E.2d1076 (1996). In essence, TIF allows a municipality to use incremental taxdollars or public funds to fund redevelopment of blighted areas.

To be eligible for tax increment allocation financing, a municipalitymust first establish that the proposed redevelopment area meets the statutorycriteria for designation as a "blighted area," a "conservation area," or acombination thereof or an "industrial park conservation area." 65 ILCS 5/11-74.4-3(a), (b), (c), (d), (n) (West 1994). In the present case, the issueconcerns whether the Subject Property qualifies as a "blighted area." Here,the Subject Property consists entirely of vacant land. Before vacant land canbe deemed blighted, a number of statutory blight factors must be established,some of which are not applicable under the factual circumstances in this case.See 65 ILCS 5/11-74.4-3(a) (West 1994).

Under the facts in this case, in order for the Subject Property to bedeemed blighted, the Village was required to establish that the growth anddevelopment of the property as a taxing district was impaired by a combinationof two or more statutory blight factors. These blight factors are: "obsoleteplatting of the vacant land; diversity of ownership of such land; tax andspecial assessment delinquencies on such land; flooding on all or part of suchvacant land; deterioration of structures or site improvements in neighboringareas adjacent to the vacant land." 65 ILCS 5/11-74.4-3(a) (West 1994). TheVillage also claimed that the Subject Property should be deemed blighted on theground that immediately prior to becoming vacant it qualified as a blightedimproved area under the statute. Thus, under the factual circumstances in thiscase, the Subject Property would be eligible for TIF financing if at least twoor more of the blight factors were established or the Subject Propertyqualified as a blighted improved area before becoming vacant.

The Village first contends that in granting the School District's motionfor summary judgment, the trial court failed to give appropriate deference tothe Village's legislative findings in the ordinances and erroneously ignoredthe ordinances' presumed validity. We must reject this contention.

The Village confuses the effect of a presumption with the standard ofjudicial review in the circuit court. See Reed-Custer Community Unit SchoolDistrict No. 255-U v. City of Wilmington, 253 Ill. App. 3d 503, 508, 625 N.E.2d381 (1993), citing to In re Estate of Kline, 245 Ill. App. 3d 413, 424, 613N.E.2d 1329 (1993) (stating that, "[o]nce a party introduces sufficientevidence to rebut a presumption, the 'bubble bursts' and the presumptiondisappears"). In the instant case, based upon the findings supporting theVillage's ordinances, presumptions existed that the Subject Property wasblighted, had not been subject to growth and development through privateinvestment, and would not reasonably be anticipated to develop without TIFfinancing. Once the School District introduced evidence to the contrary, thepresumptions vanished from the case. Reed-Custer, 253 Ill. App. 3d at 508.

The record indicates that the trial court was fully aware of the standardof deference given to a municipality's legislative findings made in anordinance. For example, in denying the Village's motion for summary judgment,the trial court's order stated, "[a]lthough great deference is given tomunicipalities in enacting TIF legislation, if summary judgment were granted inthis case, it is difficult to imagine a situation where it would beinappropriate." On these facts, it is clear that the trial court took intoconsideration the presumption set forth by the Village. See City of Aurora v.Navar, 210 Ill. App. 3d 126, 131, 568 N.E.2d 978 (1991).

The Village next contends that the trial court erred in granting theSchool District's motion for summary judgment where the conflicting expertopinion testimony created issues of fact regarding whether the four statutoryblighting factors were established. In addition, the Village maintains thatthere is a genuine issue of fact regarding whether the Subject Propertyqualified as a blighted area before it became vacant. Again, we must rejectthe Village's contentions.

The purpose of summary judgment is not to try a question of fact, but todetermine whether any genuine issues of material fact exist that would precludethe entry of judgment as a matter of law. Land v. Board of Education of theCity of Chicago, 202 Ill. 2d 414, 421, 781 N.E.2d 249 (2002). A motion forsummary judgment should be granted only when "the pleadings, depositions, andadmissions on file, together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving party is entitled tojudgment as a matter of law." 735 ILCS 5/2-1005(c) (West 1998). A triableissue of fact exists where there is a dispute regarding a material fact orwhere, although the facts are not in dispute, reasonable minds might differ indrawing inferences from those undisputed facts. Wortel v. Somerset Industries,Inc., 331 Ill. App. 3d 895, 899, 770 N.E.2d 1211 (2002). In ruling on themotion, the trial court is required to construe all evidentiary materialstrictly against the movant and liberally in favor of the nonmovant. Tolve v.Ogden Chrysler Plymouth, Inc., 324 Ill. App. 3d 485, 489, 755 N.E.2d 536(2001). Appellate review of an order granting summary judgment is de novo.Rice v. Board of Trustees of Adams County, Ill., 326 Ill. App. 3d 1120, 1122,762 N.E.2d 1205 (2002).

In the present case, the trial court, in ruling on the School District'smotion for summary judgment, was required to interpret various provisions ofthe TIF Act and weigh the conflicting expert opinion testimony regardingwhether the Subject Property was blighted within the meaning of the TIF Act. Interpreting or construing a statute is a question of law properly resolved ina summary judgment proceeding. American National Bank v. Powell, 293 Ill. App.3d 1033, 1038, 691 N.E.2d 1162 (1997). With regard to expert witnesses, thetrial court is in the best position to resolve conflicts in their testimony.City of Marseilles v. Radke, 307 Ill. App. 3d 972, 977, 718 N.E.2d 1052 (1999). Moreover, an expert's opinion is only as valid as the basis and reasons forthat opinion. Wilson v. Bell Fuels, Inc., 214 Ill. App. 3d 868, 875, 574 N.E.2d200 (1991). "When there is no factual support for an expert's conclusions, hisconclusions alone do not create a question of fact." Wilson, 214 Ill. App. 3dat 875-76.

In the instant case, the facts did not support the Village expert'sopinion testimony that four statutory blight conditions existed on the SubjectProperty. The Village asserted that four statutory blighting factors existedon the Subject Property: diversity of ownership, flooding, obsolete platting,and tax delinquencies. In support of these assertions, the Village presentedthe Camiros eligibility study and the expert testimony of urban planner JohnBrancaglione. To counter the Village's assertions, the School Districtpresented the expert testimony of urban planner Theodore R. Johnson, who inturn relied on the guidelines promulgated by the Illinois Department of Revenueas set forth in the 1988 TIF compliance manual (TIF Guide).⁽¹⁾

At oral argument, counsel for the Village argued that if a municipality'slegislative body found any evidence supporting the presence of a statutoryblight factor, this would be sufficient evidence of that factor under the TIFAct. We disagree. The Department of Revenue guidelines suggest that thequalifying statutory blighting factors should be present to a meaningful extentand reasonably distributed throughout a proposed TIF district so thatreasonable persons will conclude that public intervention is necessary. HenryCounty Board, 278 Ill. App. 3d at 1063. In the instant case, the followinganalysis shows that none of the four qualifying statutory blighting factors atissue were present to a meaningful extent on the Subject Property.

A. Obsolete Platting

Under the TIF Act, obsolete platting is one of the relevant factors indetermining whether vacant land is blighted within the meaning of the Act. 65ILCS 5/11-7.4-3(a)(1) (West 1994). The TIF guide defines obsolete platting ofvacant land as follows:

"Obsolete platting of vacant land would include parcels of limitedor narrow size and configuration or parcels of irregular size or shapethat would be difficult to develop on planned basis and in a mannercompatible with contemporary standards and requirements."

The Subject Property consists of seven vacant parcels ranging in sizefrom approximately 3 acres to 31 acres. At his deposition, the Village'sexpert, Brancaglione, testified that the Subject Property satisfied theobsolete platting criteria for blighted property because two of the sevenparcels were too large. Brancaglione conceded that these large parcels couldbe readily subdivided, but opined that this was not a reasonable solutionbecause it would be inconvenient and expensive to accomplish.

In an affidavit dated January 1, 2000, the School District's expert,Theodore R. Johnson, averred that the Subject Property was not affected byobsolete platting. He stated that the two parcels at issue were not of limitedor narrow size and were accessible from Frontage Road. He further stated thatthe fact that these parcels had not been subdivided into smaller parcels didnot represent an impediment to development. In addition, at the joint reviewboard hearing, Jeanne Lindwall of Camiros, who spoke at the hearing in supportof the Village's redevelopment plan, agreed that the Subject Property was notcurrently the victim of obsolete platting and that she had no evidenceindicating that obsolete platting interfered with the development of theSubject Property.

The trial court determined that Brancaglione's opinion regarding obsoleteplatting ignored the definition set forth in the TIF guide. The trial courtstated that if Brancaglione's opinion were given any weight, "one would have toaccept the conclusion that the entire country is blighted."

The facts in this case do not show that obsolete platting interfered withthe development of the Subject Property. No evidence was presented that theshape or size of the parcels at issue ever interfered with the economicdevelopment of the Subject Property. B. Diversity of Ownership

The TIF Act also identifies diversity of ownership as one of the relevantfactors in determining whether vacant land is blighted within the meaning ofthe Act. 65 ILCS 5/11-7.4-3(a)(1) (West 1994). The TIF guide defines diversityof ownership of vacant land as follows:

"Diversity of ownership of vacant land refers to a situation wheredifferent ownerships and interests in the land are sufficient in numberto retard or impede the ability to assemble the land for developmentmeeting contemporary development standards."

In this case, there are two owners of the Subject Property. The Bank ofMontreal owns six parcels, totaling approximately 50 acres. Mr. Avgeris ownsone parcel, totaling approximately 31 acres. Thus, the diversity of ownershipissue actually relates to only the single parcel.

At his deposition, Brancaglione testified that there was diversity ofownership on the Subject Property within the meaning of the TIF Act because theseven tax parcels within the Subject Property were held by two differentowners, each with different land use objectives. Brancaglione testified thatsince the bank obtained its six parcels in a foreclosure, it might want toquickly sell this property, whereas since the owner of the single parcelobtained it for investment purposes he might want to hold on to this property,and therefore these two divergent interests could potentially create animpediment to development of the Subject Property. Brancaglione, however,acknowledged that this scenario would create a potential impediment to only oneportion of the Subject Property, since if the bank was in a hurry to sell itssix parcels this would actually encourage development. Brancaglione alsoconceded that he had never been involved with any eligibility studies under theTIF Act wherein diversity of ownership was found based upon just two owners.

In finding that the presence of two owners was insufficient to creatediversity of ownership with respect to the Subject Property, the trial courtdetermined that Brancaglione's opinion testimony regarding diversity ofownership based upon two owners ignored the definition of "diversity ofownership" contained in the TIF guide. The trial court concluded thatBrancaglione's opinion testimony on this issue was entitled to no weight,noting that on one hand Brancaglione argued that the Subject Property shouldhave more owners of smaller parcels to avoid the obsolete platting problem,while on the other hand in relation to the diversity of ownership issue, heargued that two owners were too many. The trial court determined that suchcontradictory testimony was entitled to no weight. We agree.

As previously pointed out, the Bank of Montreal owns six parcels and Mr.Avgeris owns one parcel. Thus, the diversity of ownership issue actuallyrelates to only a single parcel. Such diversity does not satisfy the TIF guideon diversity of ownership, which "refers to a situation where differentownerships and interests in the land are sufficient in number to retard orimpede the ability to assemble the land for development meeting contemporarydevelopment standards." No evidence was presented that the two ownershipinterests in this case have impeded the economic development of the SubjectProperty.

Moreover, the alleged diversity in this case does not satisfy thestandard announced in the TIF guide, which requires that the factors causingblight be present to a meaningful extent and reasonably distributed throughouta proposed TIF district so that reasonable persons will conclude that publicintervention is necessary. Henry County Board, 278 Ill. App. 3d at 1063. Forexample, in Castel Properties, the appellate court affirmed a trial courtfinding that diversity of ownership under the TIF Act was not met where 90% ofthe subject property was owned by one entity. Castel Properties, 259 Ill. App.3d at 441. In the present case, out of seven parcels, Mr. Avgeris owns asingle parcel, totaling approximately 31 acres. On these facts, diversity ofownership is not present with respect to the Subject Property.

The Village also maintains that diversity of ownership is a potentialblighting factor because, under an annexation agreement, the two owners mustagree to any land use changes proposed within the Subject Property. We mustreject this argument. Neither the TIF guide, TIF Act, nor case law recognizespotential disagreements between two land owners under an annexation agreementas a blighting factor. Moreover, the TIF Act does not provide a means toeliminate this potential factor. The Village contends that the TIF Act wouldoffer a solution to the potential problems the annexation agreement mightcreate, since the TIF Act authorizes the exercise of condemnation in designatedTIF districts. However, under the TIF Act, a municipality can only bring aneminent domain action against a property located within a TIF district. 65 ILCS5/11-74.4-4(c) (West 1994); City of Marseilles, 307 Ill. App. 3d at 974. Here,the trial court determined that the statutory requirements for the SubjectProperty to be classified as a blighted area under the TIF Act had not beenmet. Consequently, the Village could not authorize acquisition of the SubjectProperty pursuant to its eminent domain powers under the TIF Act because thetrial court determined that the Subject Property did not qualify as a blightedarea. In the instant case, neither the presence of two owners nor theannexation agreement created the necessary type of diversity of ownership thatwould hinder the economic development of the Subject Property under the TIFAct.

C. Flooding

Under the TIF guide, evidence to support a finding of flooding on all orpart of the vacant land may be derived from, "municipal engineering records,U.S. Army Corps of Engineers or other federal or State agency documents, andother secondary source information which satisfactorily documents the conditionof flooding." In the present case, evidence indicates that portions of theproposed TIF district are located in a flood plain. However, the only reportof flooding regarding the Subject Property came from a 1933 report by theDepartment of Corrections which indicated that some flooding occurred on theproperty in the 1930s, more than 50 years before the Burr Ridge Corporate Parkwas developed.

The evidence shows that the Subject Property was developed as part of theBurr Ridge Corporate Park in the early 1980s by EMRO, a unit of the MarathonOil Company. The EMRO development included, among other things, sewers andinfrastructure improvements relating to drainage and flood detention. TheSubject Property contains a storm water management easement around theretention areas that was designed to account for the 100-year flood plain.

In concluding that there was sufficient evidence of flooding to support afinding of blight with respect to the Subject Property, the Village relied onBrancaglione's opinion that if any portion of the Subject Property appeared ona FEMA (Federal Emergency Management Agency) or FIRM (Flood Insurance Rate Map)flood plain map, the flooding criterion of the TIF Act was satisfied. Theevidence, however, reveals that the flood plain maps Brancaglione relied on informing his opinion had not been updated to reflect drainage improvements onthe Subject Property.

In addition, the TIF guide does not provide that the inclusion ofproperty on a flood map is per se evidence of flooding. Rather, the TIF guideprovides that evidence of flooding may be derived from secondary sourceinformation that satisfactorily documents the condition of flooding. Here, theflood plain maps did not document any conditions of flooding on the SubjectProperty and the maps did not include several drainage improvements on theSubject Property. The TIF guide refers to conditions of flooding and not themere possibility of future flooding.

Moreover, the single reported incident of flooding occurring on or nearthe Subject Property during the 1930s was not sufficient to support a findingof blight with respect to the Subject Property. For example, in CastelProperties, the reviewing court affirmed the trial court's finding that therewas insufficient evidence of flooding so as to constitute a blighting factor,where there was only a single instance of flooding involving a small number ofacres and there was no record evidence that the flooding ever interfered withthe ongoing farm operation on the property. Castel Properties, 259 Ill. App. 3dat 441. In the instant case, no evidence was presented that conditions offlooding impeded the development of the Subject Property. If there were suchevidence, it is highly unlikely that Barton would have chosen to construct hishotel near the detention ponds that were installed on the Subject Property in1984.

D. Tax Delinquencies

Under the TIF Act, tax and special delinquencies on a parcel of vacantland is one of the relevant factors in determining whether the parcel of landis blighted within the meaning of the Act. 65 ILCS 5/11-74.4-3(a)(1) (West1994). In regard to tax and special delinquencies, the TIF guide provides that"[e]vidence of nonpayment of real estate property taxes and/or specialassessments for an unreasonable period of time must be shown to document thepresence of this factor. This could also include evidence of forfeiture."

The TIF guide does not specify the period of time tax delinquencies mustexist on a property before the time period becomes "unreasonable" under the TIFAct. Furthermore, we do not attempt to define the precise boundaries of whatis or is not a reasonable time. Nonetheless, in this case, no evidence waspresented that the previous tax and special assessment delinquencies on theSubject Property existed for an unreasonable period of time. In addition, noevidence was presented that the previous tax delinquencies impaired thedevelopment of the Subject Property. Rather, the evidence shows that no taxdelinquencies existed on the Subject Property at the time the Village enactedthe TIF ordinances.

Brancaglione opined that he did not believe that tax delinquencies wererequired to currently exist on the Subject Property on the date the ordinanceswere adopted before this blight factor could be established. In Brancaglione'sopinion, the "history" of tax delinquencies indicated that, absent TIFintervention, the Subject Property would continue to stagnate and future taxdelinquencies would occur. Brancaglione, however, fails to address the factthat there is no evidence that the previous tax delinquencies existed for anunreasonable period of time as required by the TIF guide. More importantly, hefails to account for the fact that no evidence was presented that the previoustax delinquencies impaired the development of the Subject Property.

E. Qualified as Blighted Before Becoming Vacant

Alternatively, the Village maintains that the Subject Property wasproperly designated as a TIF district because it qualified as a blighted areabefore it became vacant. 65 ILCS 5/11-74.4-3(a)(2) (West 1994). We must rejectthis contention. The evidence indicates that the buildings which wereallegedly blighted before they were razed and the property became vacant werenever located on any of the seven parcels that comprise the proposed TIFdistrict. These buildings were part of the Bridewell prison farm and werelocated south of the proposed TIF district.

II. But-For Finding

The trial court also found that development of the Subject Property wouldoccur without the aid of TIF designation. The TIF Act requires a showing thatthe Subject Property "would not reasonably be anticipated to be developedwithout the adoption of the redevelopment plan." 65 ILCS 5/11-74.4-3(n)(J)(1)(West 2002). This is the but-for test.

The Village contends that the trial court's but-for finding was in errorbecause the court failed to consider that the development of property withinthe proposed TIF district has been stagnated while properties outside the TIFarea have continued to develop. The Village is incorrect. An examination ofthe trial court's order granting the School District's motion for summaryjudgment shows that the court was aware that economic development in theproposed TIF district had been stagnated. The trial court, however, determinedthat this stagnation was not attributable to any alleged blighting factors onthe Subject Property but, rather, was due to the tax disparities between Cookand DuPage Counties. The trial court also noted that, in spite of the largetax impediment, a 30-screen movie complex and a residential townhomedevelopment had been proposed for the Subject Property but were denied by theVillage planning commission after a large number of residents activelycampaigned against the two projects.

The record shows that the absence of TIF financing did not discourageother developers from being interested in the Subject Property. For example, acompany called Care Matrix was willing to proceed with a development on 19acres of the Subject Property without TIF financing. Moreover, the course ofdevelopment in the area immediately surrounding the Subject Property supportsthe trial court's finding that the lack of development on the Subject Propertyis due to the tax disparities between Cook and DuPage Counties rather than anystatutory blighting factors. The record shows that during the early to mid1990s, three banks, two office buildings and a restaurant were developed in theimmediate area of the Subject Property. The record also shows that Bartonproceeded with his project before the Village actually adopted the ordinancesestablishing the TIF district.

Given the evidence showing that developers were interested in the SubjectProperty without TIF financing and the evidence that growth and developmentwere occurring in the immediate area of the Subject Property, there is no basisin the record to overturn the trial court's finding that the Village failed tomeet the but-for test articulated in the TIF Act. See Castel Properties, 259Ill. App. 3d at 442-43 (affirming the trial court's finding that the citytherein failed to meet the but-for test, highlighting the extensive evidence ofgrowth and redevelopment occurring in the area and noting that a project wasbeing developed without the TIF issue having been determined).

III. Trial Court's Consideration of Post-Ordinance Developments

The Village next contends that in ruling on the School District's motionfor summary judgment, the trial court erred by considering evidence that afterthe Village adopted ordinances establishing the TIF district, two newdevelopments were commenced in the proposed TIF district without the aid of TIFfinancing. We disagree. When a court considers new information regarding amotion for summary judgment, "'the court must apply the same standards employedwhen the motion was considered for the first time, and determine the presenceor absence of a genuine issue of material fact.'" Gatlin v. Ruder, 137 Ill. 2d284, 293, 560 N.E.2d 586 (1990), quoting In re Estate of Garbalinski, 120 Ill.App. 3d 767, 771, 458 N.E.2d 1065 (1983). In the instant case, there is noevidence that in ruling on the School District's motion for summary judgment,the trial court employed an incorrect standard when it considered evidence thatdevelopments occurred without TIF financing in the proposed TIF district afterthe Village adopted the ordinances establishing the TIF district.

IV. Village's Motion for Rehearing

Lastly, the Village argues that the trial court erred in denying itsmotion for rehearing to introduce newly discovered evidence. Again, wedisagree. In order to justify a hearing based on new evidence, a party mustdemonstrate that the evidence is of such conclusive or decisive character as tomake it probable that a different judgment would be reached. Patrick MediaGroup, Inc. v. City of Chicago, 255 Ill. App. 3d 1, 8, 626 N.E.2d 1066 (1993). The decision to grant or deny a motion for rehearing or reconsideration restswithin the discretion of the trial court and will not be disturbed on appealabsent an abuse of that discretion. Patrick Media Group, 255 Ill. App. 3d at 8.

In its motion for rehearing, the Village sought to present evidence thattwo developments that were proposed after the Village enacted the ordinancesestablishing the TIF district failed due to the lack of TIF financing. This"new" evidence is not so conclusive that it probably would have changed theresult of the summary judgment motion. The trial court granted the SchoolDistrict's motion for summary judgment on the ground that the Subject Propertydid not contain any of the blighting factors necessary to qualify it for TIFdesignation under the TIF Act. Consequently, the fact that the twodevelopments might have failed due to a lack of TIF financing added nothing tothe Village's opposition to the motion for summary judgment. The trial courtdid not abuse its discretion in denying the Village's motion for rehearing.

Accordingly, for the reasons set forth above, the judgments of thecircuit court of Cook County are affirmed.

Affirmed.

SOUTH, P.J., with WOLFSON, J., concur.

1. The TIF guide is commonly relied on by experts and courts ininterpreting the TIF Act. See Henry County Board, 278 Ill. App. 3d at 1063.