{ "id": 4286039, "name": "HARTZ CONSTRUCTION COMPANY, INC., et al., Plaintiffs-Appellants, v. THE VILLAGE OF WESTERN SPRINGS, Defendant-Appellee (Gurrie Rhoads, Indiv., et al., Defendants)", "name_abbreviation": "Hartz Construction Co. v. Village of Western Springs", "decision_date": "2009-05-04", "docket_number": "No. 1-08-1895", "first_page": "75", "last_page": "88", "citations": [ { "type": "official", "cite": "391 Ill. App. 3d 75" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "617 N.E.2d 1310", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "recapture costs could not be awarded where the recapture agreement was executed after the defendants connected to the improvement at issue" } ], "opinion_index": 0 }, { "cite": "248 Ill. App. 3d 854", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2942168 ], "year": 1993, "pin_cites": [ { "page": "858", "parenthetical": "recapture costs could not be awarded where the recapture agreement was executed after the defendants connected to the improvement at issue" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/248/0854-01" ] }, { "cite": "523 N.E.2d 36", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "168 Ill. App. 3d 763", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3514093 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0763-01" ] }, { "cite": "617 N.E.2d 178", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "247 Ill. App. 3d 25", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2930703 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/247/0025-01" ] }, { "cite": "641 N.E.2d 435", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "using an acreage formula to calculate recapture costs" } ], "opinion_index": 0 }, { "cite": "161 Ill. 2d 321", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783187 ], "weight": 12, "year": 1994, "pin_cites": [ { "page": "328-29" }, { "page": "329" }, { "page": "332" }, { "parenthetical": "using an acreage formula to calculate recapture costs" }, { "page": "328-29" }, { "page": "328-30" }, { "page": "332" }, { "page": "332" }, { "page": "332" }, { "page": "331" }, { "page": "332-33" }, { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0321-01" ] }, { "cite": "878 N.E.2d 821", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "377 Ill. App. 3d 631", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4273382 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "635" }, { "page": "635", "parenthetical": "we will not read in exceptions, limitations, or conditions" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/377/0631-01" ] }, { "cite": "837 N.E.2d 74", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "216 Ill. 2d 334", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3827828 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "346" }, { "page": "346" }, { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/216/0334-01" ] }, { "cite": "826 N.E.2d 951", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "356 Ill. App. 3d 668", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3750268 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "670" }, { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/356/0668-01" ] }, { "cite": "893 N.E.2d 975", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "opinion_index": 0 }, { "cite": "384 Ill. App. 3d 494", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4279673 ], "year": 2008, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/384/0494-01" ] }, { "cite": "836 N.E.2d 95", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "361 Ill. App. 3d 180", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4258719 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "183" }, { "page": "183" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/361/0180-01" ] } ], "analysis": { "cardinality": 1021, "char_count": 30343, "ocr_confidence": 0.767, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14396437784596708 }, "sha256": "b46b55660576da23fe395c42ab10eca5533825b03e8c06c727ecb97d15041ab0", "simhash": "1:f90df4e6d81a0457", "word_count": 4673 }, "last_updated": "2023-07-14T21:50:16.782503+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HARTZ CONSTRUCTION COMPANY, INC., et al., Plaintiffs-Appellants, v. THE VILLAGE OF WESTERN SPRINGS, Defendant-Appellee (Gurrie Rhoads, Indiv., et al., Defendants)." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nHow much statutory authority does a non-home-rule village have when it contracts with a developer to recapture from a third party the costs of improvements which benefit that third party? To answer that question we examine the applicable statute to determine what it says and what it does not say about recapture agreements.\nPlaintiff Hartz Construction Co., Inc., filed a suit for injunctive relief against defendants Village of Western Springs (the Village), Cur-rie Rhoads, Commonwealth Properties Co., LLC, and Rhoads Development Co., seeking a declaratory judgment that a 2002 recapture agreement adopted by the Village was invalid under section 9 \u2014 5\u20141 of the Illinois Municipal Code (Code) (65 ILCS 5/9 \u2014 5\u20141 (West 2002)). Plaintiff and the Village filed cross-motions for partial summary judgment. The trial court granted the Village\u2019s partial summary judgment motion, finding the recapture agreement was valid under the Code. It denied Hartz\u2019s motion for partial summary judgment. Plaintiff appeals. We affirm the trial court and remand for further proceedings.\nFACTS\nRhoads, Rhoads Development Co., and Commonwealth Properties Co., LLC (Rhoads), are the developers of the \u201cCommonwealth RPUD,\u201d which is part of a residential planned unit development in the Village of Western Springs known as the \u201cCommonwealth Development.\u201d Plaintiff owns three noncontiguous parcels known as the \u201cWaterford PUD,\u201d which were intended to be developed in conjunction with the overall Commonwealth Development. Plaintiff\u2019s north and middle parcels are surrounded by Rhoads\u2019 properties and the south parcel forms the southern boundary of the Commonwealth Development. The Commonwealth Development is zoned \u201cR-4 Multi-Family Residence District.\u201d The Waterford PUD is a proposed single-family townhouse development.\nPursuant to a Village ordinance passed on August 10, 1992, Rhoads was required to make several improvements as a condition for approval to develop the Commonwealth Development. The improvements included constructing a sanitary sewer system, storm water sewer system, water distribution system, roadways, streets, the 53rd Street bridge, sidewalks, right-of-way landscaping, and street lighting. Rhoads also was required to build several water detention ponds. By 2000, Rhoads\u2019 development was 75% to 80% complete.\nOn October 28, 2002, after private negotiations between plaintiff and Rhoads regarding reimbursement for the improvements did not succeed, Rhoads and the Village entered into a recapture agreement pursuant to section 9 \u2014 5\u20141 of the Code. The stated purpose of the agreement was to reimburse Rhoads for the costs incurred in making improvements that benefitted properties other than his own. The preamble to the recapture agreement specifically noted Rhoads\u2019 public improvements benefitted plaintiff\u2019s three noncontiguous parcels. Plaintiffs three parcels were the only \u201cbenefitted properties\u201d subject to the recapture agreement. Rhoads owned 88% of the property at issue in the recapture agreement, while plaintiff owned 12%. The total cost of public improvements included in the recapture agreement was $3,513,057. The agreement also provided that, if any term or provision was found illegal, the remaining terms and provisions continued to have full force and effect.\nThe Village passed Ordinance No. 05 \u2014 2358, which approved plaintiffs request for a permit to develop the middle and south parcels of its Waterford PUD, a total of 10 units. The ordinance noted plaintiff planned to \u201chold off on preliminary and final approval\u201d of its north parcel. Under the terms of the ordinance, approval of the permit was conditioned on plaintiff paying the Village a per-unit cost of $24,915 to reimburse Rhoads pursuant to the statute. The recapture agreement provided that upon approval of additional units, plaintiff is required to pay $24,915 per each additional unit. The recapture agreement does not require Rhoads to pay an additional fee if he constructs more units.\nPlaintiff filed a complaint for declaratory judgment and injunctive relief, seeking a declaration that the recapture fees imposed by the ordinance are arbitrary, capricious, and unlawful. The Village filed the affirmative defenses of estoppel and waiver, alleging plaintiff participated in the recapture agreement negotiations with full knowledge of the terms.\nPlaintiff moved for partial summary judgment, seeking a declaration that the recapture agreement is invalid because: (1) the per-unit recapture calculation method is unreasonable and beyond the Village\u2019s power: (2) only \u201cover-sized\u201d improvements that were done \u201cprimarily\u201d to benefit plaintiff may be subject to recapture; (3) the definition of benefitted properties violates section 9 \u2014 5\u20141 of the Code; (4) a recapture agreement cannot seek the recapture of improvement costs which already have been incurred; and (5) the recapture agreement does not recapture actual costs proportionate to plaintiffs use of the public improvements. The Village filed a cross-motion for summary judgment, requesting plaintiffs motion be denied and the entry of a judgment in favor of the Village and Rhoads upholding the validity of the recapture agreement.\nThe trial court entered partial summary judgment in favor of the Village, finding the recapture agreement and ordinance, except for the inclusion of Rhoads\u2019 landscaping costs, were valid under section 9 \u2014 5\u20141 of the Code. The trial court removed the landscaping costs from the recapture agreement because reimbursement for such costs was not specifically provided for under section 9 \u2014 5\u20141. Hartz\u2019s motion for partial summary judgment was denied. Plaintiff appeals.\nDECISION\nI. Material Questions of Fact\nPlaintiff contends material questions of fact prevented the trial court from entering summary judgment in favor of the Village in this case. Specifically, plaintiff contends the trial court adopted the Village\u2019s version of the facts in their entirety in reaching its decision, ignoring several inconsistencies raised by plaintiff. We disagree.\nSummary judgment is appropriate where the pleadings, depositions, admissions, and affidavits on file, when taken in the light most favorable to the nonmovant, show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. 735 ILCS 5/2 \u2014 1005(c) (West 2002); Midland Properties Co. v. Acme Refining Co., 361 Ill. App. 3d 180, 183, 836 N.E.2d 95 (2005). Our review of the trial court\u2019s grant of summary judgment is de novo. Midland Properties Co., 361 Ill. App. 3d at 183.\nWhen parties file cross-motions for summary judgment, as here, they agree no genuine issue of fact exists, only a question of law is involved, inviting the trial court to decide the issues based on the record before it. State Farm Fire & Casualty Co. v. Martinez, 384 Ill. App. 3d 494, 498, 893 N.E.2d 975 (2008).\nIn this case, the record reflects no genuine issues of material fact remained to preclude the trial court from entering a judgment as a matter of law.\nDespite plaintiffs contentions to the contrary, we fail to see an instance where Village engineer Jeffrey Ziegler\u2019s affidavit testimony was materially incompatible with, or contradictory to, his earlier deposition testimony. Instead, Ziegler\u2019s affidavit merely expounded on several of the points he previously testified to in his deposition, including why he considered estimated costs instead of actual costs when determining the recapture fee, why he did not include several off-site properties in the recapture agreement, and why he believes plaintiff benefitted from the interior-street improvements built by Rhoads.\nMoreover, the record reflects the trial court did not rely on contested or improper facts when entering a judgment as a matter of law. The trial court\u2019s written memorandum and order indicates it carefully analyzed and applied the evidence presented by both parties in this case. We see no reason to disturb the trial court\u2019s determination that the questions presented in the cross-motions for summary judgment could be properly determined as a matter of law. We adopt the trial court\u2019s factual findings.\nII. Section 9 \u2014 5\u20141 of the Code\nBecause plaintiff\u2019s appeal involves the question of whether the recapture agreement adopted by the Village violates section 9 \u2014 5\u20141 of the Code, we find it useful to discuss the legislative intent behind the recapture statute before addressing plaintiffs main contentions.\nThe primary rule in statutory interpretation is to determine and give effect to the intent of the legislature. In re Application of the County Collector, 356 Ill. App. 3d 668, 670, 826 N.E.2d 951 (2005). The best indication of legislative intent is the plain language of the statute. U.S. Bank National Ass\u2019n v. Clark, 216 Ill. 2d 334, 346, 837 N.E.2d 74 (2005).\nWords in the statute should be construed in context and given their plain and ordinary meaning. Clark, 216 Ill. 2d at 346; In re Application of the County Collector, 356 Ill. App. 3d at 670. We will not read into a statute any exceptions, limitations, or conditions not expressed by the legislature. Hudson v. YMCA of Metropolitan Chicago, LLC, 377 Ill. App. 3d 631, 635, 878 N.E.2d 821 (2007).\nThrough the imposition of a recapture agreement, a municipality is able to apportion the cost \u201cof local improvements among those of its constituents who will use the improvements.\u201d Beneficial Development Corp. v. City of Highland Park, 161 Ill. 2d 321, 328-29, 641 N.E.2d 435 (1994). Illinois courts have consistently upheld the use of recapture agreements in home-rule municipalities. Beneficial Development Corp., 161 Ill. 2d at 329, citing SBL Associates v. Village of Elk Grove, 247 Ill. App. 3d 25, 617 N.E.2d 178 (1993); Woodfield Lanes, Inc. v. Village of Schaumburg, 168 Ill. App. 3d 763, 523 N.E.2d 36 (1988). Section 9 \u2014 5\u20141 of the Code provides the statutory requirements for recapture in non-home-rule municipalities, such as the Village of Western Springs. See 65 ILCS 5/9 \u2014 5\u20141 (West 2002); Beneficial Development Corp., 161 Ill. 2d at 332.\nThe plain language of section 9 \u2014 5\u20141 tells us the legislature intended to make a broad grant of authority to municipalities in order to recapture a portion of the costs a developer expends on improvements that \u201cmay be used for the benefit of property not in the subdivision or planned unit development.\u201d 65 ILCS 5/9 \u2014 5\u20141 (West 2002). The statute does not refer to \u201cexclusive\u201d use for the benefit of the adjoining property.\nPhrases such as \u201cin the opinion of the corporate authorities\u201d and \u201cmay be used for the benefit of property\u201d indicate the legislature intended to place very few restrictions on non-home-rule municipalities\u2019 power to recapture costs under the section. With this broad grant of authority to the Village in mind, we address plaintiffs contentions that the instant recapture agreement violated the terms of the recapture statute.\nIII. Per-Unit Method\nPlaintiff contends the per-unit method used to calculate its recapture costs was \u201cinherently irrational\u201d and a violation of the statute because it provided fluctuating recapture costs as opposed to a fixed formula like that in Beneficial Development Corp. v. City of Highland Park, 161 Ill. 2d 321, 641 N.E.2d 435 (1994) (using an acreage formula to calculate recapture costs). Plaintiff contends Rhoads would receive a windfall because the per-unit method essentially punished plaintiff for building more units while decreasing Rhoads\u2019 financial obligation.\nThe Village authorized Hartz to build 12 units under the recapture agreement. Rhoads was approved to build 129 units. Later, Hartz and Rhoads proposed to build more units than approved under the recapture agreement: 18 for Hartz and 133 for Rhoads. The recapture amount per unit ($24,915) was obtained by dividing the total cost of the Commonwealth Development improvements ($3,513,015) by the total number of units provided in the recapture agreement (141). The recapture amount was not adjusted after the proposal of the additional units.\nIn calculating the recapture costs, Ziegler said in his affidavit he included amounts for improvements required for any development that would eventually be part of the Commonwealth Development: water mains, sanitary and storm sewers, street work, engineering, surveying, and related legal and planning work for the improvements. To calculate the recapture amount, Ziegler said he used both the amounts provided by Rhoads as his actual costs and the estimates of costs used in Rhoads\u2019 letter of credit. Ziegler said both amounts \u201cappeared reasonable according to [his] experience as an engineer.\u201d Based on that prior experience, Ziegler decided to use a per-unit method to apportion the recapture costs. In his deposition, Ziegler explained he arrived at the recapture amount by considering the total expenditure on improvements for the entire Commonwealth Development. Ziegler said that a frontage calculation method was reasonable as well.\nHartz contends an acreage or frontage calculation method is most appropriate. We disagree. If an acreage method were used here, Hartz would have been responsible for 12% of the total acreage of Commonwealth Development. Twelve percent of the total cost of improvements would be approximately $421,561. Using the per-unit method and Hartz\u2019s 18 proposed units yields a total of $448,470, which is just over 12% of the total cost of improvements. However, if Hartz builds anything less than 18 units, its per-unit percentage would be less thati 12% and, thus less than its total acreage. The per-unit method provides the potential for lower recapture costs. Hartz has not proposed any specific method that would benefit it more.\nIn addition, Rhoads testified at his deposition that he and Frank Benak, the Village assistant manager and director of fire and inspection services at the time, analyzed several calculation methods, including the acreage method proposed by plaintiff on appeal. They determined the fairest method was the per-unit method. Rhoads said the per-unit method produced the lowest cost for Hartz.\nMoreover, while not rising to the level of a judicial admission, Hartz, at one time, offered to pay $19,196 per-unit recapture cost. We recognize the offer was made while the parties were privately negotiating the terms of a potential joint venture. The parties were unable to settle on the terms; however, at that time, Hartz did submit a per-unit offer.\nThe statute gives the Village a broad grant of authority. It does not restrict the method for calculating recapture costs. 65 ILCS 5/9\u2014 5 \u2014 1 (West 2002). The statute:\n\u201cwhere, in the opinion of the corporate authorities, the facilities, roadways, or improvements may be used for the benefit of property not in the subdivision or planned unit development or outside the property for which a building permit has been issued, and the [improvements] are to be dedicated to the public, the corporate authorities may by contract with the subdivider or permittee agree to reimburse and may reimburse the subdivider or permittee for a portion of the costs of [the improvements] from fees charged to owners of property not within the subdivision, planned unit development, or property for which a building permit has been issued ***. The contract shall describe the property outside the subdivision, planned unit development, or property for which a building permit has been issued that may reasonably be expected to benefit from [the improvements] that are required to be constructed under the contract and shall specify the amount or proportion of the cost of the facilities, roadways, or improvements that is to be incurred primarily for the benefit of that property.\u201d (Emphasis added.) 65 ILCS 5/9 \u2014 5\u20141 (West 2002).\nWhen the improvements may be used for the benefit of the adjoining property, the recapture agreement must name the property and provide \u201cthe amount or proportion\u201d of cost \u201cto be incurred primarily for benefit of that property.\u201d 65 ILCS 5/9 \u2014 5\u20141 (West 2002). So long as the calculation method provides an amount or proportion of the overall improvement costs to which the adjoining property primarily benefits, the method is not restricted. We see no reason why a per-unit method is not within the confines of the statute. See Hudson, 377 Ill. App. 3d at 635 (we will not read in exceptions, limitations, or conditions).\nWe recognize the per-unit method differs from that applied in Beneficial Development Corp.-, however, the recapture agreement at issue there concerned a home rule village. Beneficial Development Corp., 161 Ill. 2d at 328-29. A village with home rule power can impose recapture costs without relying on an ordinance. Beneficial Development Corp., 161 Ill. 2d at 328-30. A home rule village is exempt from the recapture statute. Beneficial Development Corp., 161 Ill. 2d at 332. Western Springs is not a home rule village. It must follow the recapture statute.\nThe supreme court said its holding was \u201cnot inconsistent\u201d with the statute. Beneficial Development Corp., 161 Ill. 2d at 332. It held a \u201crecapture agreement is enforceable to the extent that it provides for recovery of the [adjoining] property owners\u2019 pro rata share of the costs involved in making the improvements that would be used by them.\u201d Beneficial Development Corp., 161 Ill. 2d at 332. We are bound by the supreme court\u2019s holding. Therefore, the test for whether a recapture method is valid is whether it recaptures the proportion of the adjoining property\u2019s use of the improvements.\nHere, the more units Hartz builds, the more it uses the improvements. We find the per-unit method used in this case satisfies the test.\nIV Benefitted Property\nPlaintiff contends the recapture fee failed to properly apportion the costs attributed to improvements primarily benefitting its property. Plaintiff contends the recapture cost was unreasonable because Rhoads did not have to \u201cover-size\u201d the improvements on its behalf and the east-west side streets did not primarily benefit its property.\nThe uncontradicted facts demonstrate plaintiffs property benefit-ted from the overall, development-wide public improvements included in the recapture cost. All of the included improvements, with the exception of the landscaping the trial court withdrew from the recapture fee, were authorized by the recapture statute. The statute says the \u201ccorporate authorities *** may reimburse\u201d the primary developer \u201cfor a portion of the cost of the facilities, roadways, or improvements,\u201d which include water mains, sanitary sewers, drains, installation of traffic signals, and other traffic-related improvements, from fees charged to the secondary developer. 65 ILCS 5/9 \u2014 5\u20141 (West 2002). The public improvements were completed for the proper functioning of the Commonwealth Development as a whole. Plaintiffs parcels were part of that development and, in turn, benefitted from those improvements. Plaintiff was responsible for repaying its per-unit share of the overall improvements.\nThe statute does not require the primary developer to \u201cover-size\u201d improvements in anticipation of future development. See 65 ILCS 5/9 \u2014 5\u20141 (West 2002). Plaintiff relies on Beneficial Development Corp. to support its \u201cover-size\u201d argument. The supreme court in Beneficial Development Corp. explained that \u201cover-sized\u201d improvements are those a municipality imposes during construction so future developers can utilize the preexisting improvements. Beneficial Development Corp., 161 Ill. 2d at 331.\nThat is exactly what happened here. Rhoads testified at his deposition that the public improvements were planned to accommodate Hartz\u2019s parcels from the outset. There was no need for imposed \u201cover-sizing\u201d because the improvements were designed to suit the entire Commonwealth Development, which included Hartz\u2019s parcels. However, Rhoads did testify the improvements \u201cvolume-wise and population-wise\u201d were planned \u201cfor more than what [he was] intending to put in,\u201d as a result of the Hartz parcels. Rhoads said he \u201cdid all kinds of reconfiguration to accommodate Hartz, and that was required by the Village.\u201d Rhoads also said the development\u2019s main roadway was chosen because it better served the Hartz parcels.\nPlaintiff claims the development\u2019s east-west interior streets do not \u201cprimarily\u201d benefit its properties. It contends it was not responsible for their repayment pursuant to the recapture statute.\nPlaintiffs contention fails to account for all of the relevant statutory language. Its argument is based on isolated language, taken out of context. See Clark, 216 Ill. 2d at 346. The statute requires the included improvements \u201cmay be used for the benefit of\u201d Hartz\u2019s parcels. 65 ILCS 5/9 \u2014 5\u20141 (West 2002). The benefit need not exclusively apply to Hartz\u2019s parcels; the benefit need not be crucial to Hartz\u2019s parcels. Rhoads\u2019 deposition and Ziegler\u2019s deposition and affidavit persuade us the improvements benefitted Commonwealth Development as a whole. There is no testimony or other evidence which lists the improvements and identifies their benefits. Ziegler said he \u201cadjusted [Rhoads\u2019] total submitted costs to reflect the amounts that actually benefitted the entire Commonwealth property area, not just site-specific improvements.\u201d\nIn its interpretation of the relevant statutory language, the trial court said:\n\u201cThis language does not mean that only improvements which were designed and made primarily for the benefit of property not in the subdivision or planned unit development can serve as a basis for a recapture agreement as argued by Hartz. Rather, under the Recapture Statute, once the corporate authorities determine in their opinion that another property may be benefitted by the improvements at issue, the corporate authorities must then identify the amount or percentage of the improvements which primarily benefit those properties. This is what the Village did here.\u201d\nWe agree. The statute requires a two-step analysis. See 65 ILCS 5/9 \u2014 5\u20141 (West 2002). Here, the \u201ccorporate authorities,\u201d Ziegler and Benak, determined plaintiffs properties may benefit from the public improvements provided to the Commonwealth Development as a whole, then structured plaintiffs recapture cost based on its per-unit portion of those benefits.\nWe find no merit in plaintiffs unsupported argument that the east-west streets were not subject to recapture because Rhoads originally constructed them as private streets. The statute does not restrict recapture to the original intent of the improvements. Rather, the statute says recapture may be imposed once the improvements \u201care to be dedicated to the public.\u201d 65 ILCS 5/9 \u2014 5\u20141 (West 2002). The streets have been or will be dedicated to the public. Moreover, the fact that the Village declined Rhoads\u2019 requested recapture agreement in 1992 is of no consequence.\nV Excluded Properties\nPlaintiff contends the trial court erred in finding it was reasonable for the recapture agreement to exclude off-site properties that reasonably benefit from the public improvements.\nAccording to Ziegler, the Village decided to exclude the commercially zoned area north of the Commonwealth Development in the recapture analysis because at the time the agreement was entered, poor soil conditions rendered development of the lot economically unfeasible. Two single-family residential developments north of the Commonwealth Development also were excluded from the recapture agreement. One was owned by plaintiff and one was owned by Rhoads. These developments required their own improvements.\nThere is nothing in the recapture statute to support plaintiff\u2019s contention. The statute does not impose that mandatory obligation. It does not require that all properties which could benefit from the improvements be included in the recapture calculation. Rather, the statute permits \u201ccorporate authorities\u201d to determine, based on their \u201copinion,\u201d which properties \u201cmay\u201d benefit from the improvements. 65 ILCS 5/9 \u2014 5\u20141 (West 2002). The statute then requires that the \u201ccorporate authorities\u201d name those properties. 65 ILCS 5/9 \u2014 5\u20141 (West 2002). Under the statute, \u201ccorporate authorities\u201d have the discretion to decide which properties to include.\nHere, Ziegler and Benak determined the improvements \u201cmay be used for the benefit of\u201d Hartz\u2019s parcels. 65 ILCS 5/9 \u2014 5\u20141 (West 2002). The parcels were named in the recapture agreement. Whether the complained-of properties enjoyed some benefit from the public improvements is of no consequence. The statutory obligations were fulfilled.\nVI. Timing of Improvements\n\u20225 Plaintiff contends the recapture cost impermissibly includes improvements constructed in 1994, well before the 2002 recapture agreement was signed. Plaintiff contends only prospective improvements may be included in the recapture cost.\nThe statute does not support plaintiffs contention. The statute says:\n\u201cThe contract shall provide that the municipality shall collect fees charged to owners of property not within the subdivision, planned unit development, or property for which a building permit has been issued at any time before the connection to and use of the [improvements] by the respective properties of each owner.\u201d (Emphasis added.) 65 ILCS 5/9 \u2014 5\u20141 (West 2002).\nThe only statutory requirement regarding timing of the improvements is that the recapture cost must be collected before the secondary developer connects to and uses the improvements.\nHere, the payment of its recapture costs was a threshold requirement for plaintiff to receive its building permits. Plaintiff has not connected to or used the Commonwealth Development improvements. Cf. Wiseman-Hughes Enterprises, Inc. v. Reger, 248 Ill. App. 3d 854, 858, 617 N.E.2d 1310 (1993) (recapture costs could not be awarded where the recapture agreement was executed after the defendants connected to the improvement at issue). The improvements constructed before the entry of the 2002 recapture agreement are permissibly included in plaintiffs recapture costs.\nThe statute requires that the improvements \u201care to be dedicated to the public.\u201d 65 ILCS 5/9 \u2014 5\u20141 (West 2002). There is no evidence the remaining improvements will not be dedicated to the public in the same manner as those that have already been dedicated. Benak testified at his deposition that all of the improvements, including those yet to be approved in Phase II and Phase III, will be dedicated. There is no evidence to the contrary. Rather, the recapture agreement specifies the public improvements will be dedicated to the Village. The recapture agreement properly included the challenged improvements.\nVII. Engineer-Estimated Costs\nPlaintiff contends the recapture cost is based improperly on estimated costs instead of the actual costs required by the statute.\nThe recapture statute requires the contract \u201cspecify the amount or proportion of the cost\u201d of the improvements. 65 ILCS 5/9 \u2014 5\u20141 (West 2002). The statute does not restrict the determination of the \u201camount or proportion of the cost\u201d to actual costs. The statute does not prohibit the use of estimated costs. The supreme court in Beneficial Development Corp. found engineer-generated estimates were adequate for calculating recapture fees. Beneficial Development Corp., 161 Ill. 2d at 332-33. The supreme court did not criticize the use of estimated costs.\nHere, Ziegler submitted a cost estimate based on 20 years of civil engineering experience, estimates for yet-to-be constructed improvements, and Rhoads\u2019 calculation of costs for the completed improvements. The estimates used to formulate the recapture costs were permissible under the statute.\nPlaintiffs contention that estimates are impermissible in calculating recapture costs runs contrary to its contention that it can be responsible only for the repayment of prospective improvements. By definition, the costs of prospective improvements are estimates.\nAt oral argument, Hartz argued the use of estimated costs vitiates the recapture agreement because interest must be based on \u201cexpended\u201d costs pursuant to the statute. This contention was not raised in any of Hartz\u2019s briefs. It is waived. See 210 Ill. 2d R. 341(h)(7) (\u201c[ploints not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing\u201d).\nCONCLUSION\nThere is good reason for enforcing recapture agreements, even though the third party to the contract (here, Hartz) is bound by an agreement it did not consent to and did not bargain for. The supreme court said in Beneficial Development Corp.:\n\u201cMunicipalities frequently require that developers construct improvements so that the improvements are able to withstand larger capacities than the developers require. In this manner, municipalities facilitate future development because subsequent developers are able to utilize preexisting improvements. [Citation.] The facilitation of future development serves a public purpose, and any private benefit to the developers is merely ancillary.\u201d Beneficial Development Corp., 161 Ill. 2d at 331.\nThe case before us reflects the \u201cpublic purpose\u201d referred to in Beneficial Development Corp. The recapture contract looked to future development. The facilities built by Rhoads, at the Village\u2019s urging, assumed future development like the one Hartz has in mind. It was not a perfect recapture agreement, but it complied with the provisions of section 9 \u2014 5\u20141 of the Code and the requirements of Beneficial Development Corp. It was a reasonable recapture agreement. That is good enough.\nWe affirm the trial court\u2019s grant of partial summary judgment to the Village, and its denial of partial summary judgment to Hartz. We remand this cause to the trial court for further proceedings.\nAffirmed and remanded.\nR. GORDON, P.J., and HALL, J., concur.\nHartz Construction Co. is the beneficiary of the Chicago Title land trust no. 17472.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "John B. Murphey and Judith N. Kolman, both of Rosenthal, Murphey & Coblentz, of Chicago, for appellants.", "Michael T. Jurusik, Lance C. Malina, and Jacob Karaca, all of Klein, Thorpe & Jenkins, Ltd., of Chciago, for appellee." ], "corrections": "", "head_matter": "HARTZ CONSTRUCTION COMPANY, INC., et al., Plaintiffs-Appellants, v. THE VILLAGE OF WESTERN SPRINGS, Defendant-Appellee (Gurrie Rhoads, Indiv., et al., Defendants).\nFirst District (1st Division)\nNo. 1\u201408\u20141895\nOpinion filed May 4, 2009.\nJohn B. Murphey and Judith N. Kolman, both of Rosenthal, Murphey & Coblentz, of Chicago, for appellants.\nMichael T. Jurusik, Lance C. Malina, and Jacob Karaca, all of Klein, Thorpe & Jenkins, Ltd., of Chciago, for appellee." }, "file_name": "0075-01", "first_page_order": 89, "last_page_order": 102 }