Pseudoscience and the Reification Fallacy in Minneapolis
America was a collective eyewitness to the death of George Floyd in Minneapolis on the evening of May 25th, 2020. Next to a confession, eyewitness testimony is considered to be the most robust class of evidence in criminal courts.
Should we all look again at the tragedy? Philosophy, Medicine, Law, and Theology cannot all be mastered by any single person. Goethe’s Dr. Herman Faust did so, but only as a fictional character. In Faust, Part 1 it was the comedian, not the scholarly physician, who observed… “then one while this, and one while that, is stirred up; each one sees what he carries in his heart.“
Geneva’s Mayor and his minions received a free “preplay” “call” from an industry expert on how Emma’s Landing would score using IHDA’s Qualified Allocation Plan score sheet. They buried this preplay and used various forms of “stick em” (2494) Pitching Trick – Legal Stick Em For Pitchers – YouTube to defraud other applicants and Geneva voters and taxpayers.
From: Hume An Sent: Monday, July 1, 2019 12:02 PM To: DeGroot, David; Tymoszenko, Cathleen Subject: Thank you and follow up Hi David and Cathleen: Thank you for taking the time to meet with me on Friday. I found the meeting highly productive. After the meeting, I had a chance to drive the sites you suggested, and I had a chance to score them based on IHDA’s 2019 application. I have strong interest in the two City-owned sites, particularly the site along the river (I believe it’s 306 Crissey). That site scores very well, and I think would be suitable for workforce housing. I also like the City-owned site on Lewis Rd. near the townhome development. It scores a little lower as it’s a little further from amenities and public transportation, but I think it still scores pretty well. After the two City sites, I really like the site behind the Walgreens. I would love to explore how to advance discussions on the two City sites. What is the best way to do so? Should I send LOIs for the two properties? Would you like to set up a call to discuss further? Best, Hume An Senior Vice President of Development [MVAH] Upper Midwest Region
“Pretty well” may not have made the cut in an un-rigged process. Remember that IHDA announced Geneva/Burton as a “winner” but believed the site was donated to the Burton Foundation by Geneva’s taxpayers. The Mayor and City Council did nothing to disabuse IHDA of its mistaken belief. Or IHDA employed the “wink and nod” gambit that is deeply embedded in the “Geneva Way.” How long will the “Geneva Way” set the ethical standard for how we “play ball” in Geneva?
The answer lies in the tenets of the “Geneva Way:” ambush, smoke and mirrors, sleight-of-hand, distortions, selective and restricted dissemination of information, cheating, abuse and unlawful usurpation of municipal powers, and outright fraud.
During an illegal secret City Council meeting on August 26, 2019, [Geneva Economic Development Director] DeGroot informed the Council that Geneva had been “approached by two developers regarding affordable housing sites; namely the Lewis Road site. Burton Foundation offered a letter of intent to build 49, 2-story townhome units with an initial offer of $700,000 for the City’s property. An earlier, additional letter of interest from MVAH Partners out of Ohio was also received, for the same property but with I-story units and a more diverse mix of income levels. Discussion centered on what type of development would be more attainable.”
About a week later, Degroot sent this message to a disappointed Hume An, an executive vice president for MVAH Holding, LLC, a large developer of LIHTC housing. An had expressed “surprise” at the turn of events that resulted in a rejection of MVAH’s offer and asked if a counteroffer would be possible. An indicated that flexibility was integral to MVAH’s approach.
From: DeGroot, David>
Sent: Wednesday, September 4, 2019 8:41 AM To: Hume An >; Tymoszenko, Cathleen > Subject: RE: ? Re: ? Re: ? Re: ? Re: ? Re: Conference Call on Lewis Road
Good morning Hume,
I understand your surprise. We did not intend to mislead you in any way. We honestly received the other offer as we were preparing the agenda for the Council to discuss your interest in the property. I would be happy to discuss in more detail with you. I am available this morning until about 9:45 am, tomorrow afternoon around 4 pm, or any time Friday afternoon. Please let me know what works for you.
David DeGroot, AICP
Director of Community Development
City of Geneva, Illinois
Remember the City of Geneva published a “Just the Facts” sheet on Emma’s Landing that stated that only one proposal for the site had been received in 2019. This was a pure canard. Oddly, the minutes of the secret meeting did not include the MVAH proposal. The reader is left to believe that the secret meeting was already set to (illegally) consider the MVAH proposal and that the agenda was being drafted at the very moment the Burton Foundation “honestly” arrived.
The above letter also acknowledges that illegal action was taken in secret to select the Burton application and reject the MVAH proposal. Obviously, MVAH was “surprised” by the ambush, but then they were not familiar with Geneva’s fondness for ambush as a political weapon. MVAH submitted a formal “Letter of Proposal” for the Emma’s site on July 30, 2019 (the reader is re-reminded of Geneva’s public prevarication claiming Burton’s was the only proposal). If any member of the City Council was aware of the MVAH proposal, evidence of this awareness has not yet been found. Call your alderman and inquire about this. Please see the FOIA file below for details. The author apologizes for the snail’s pace of this investigation. Geneva has imposed a 21-business day impoundment for the author’s FOIA requests – yet another example of the “Geneva Way.”
On June 18, 2019, MVAH wrote this to DeGroot: “Based on initial research, I’ve identified Geneva as a good place in which to develop senior and/or workforce housing. I would really appreciate the opportunity to meet with you in person, provide further information about MVAH and what we do, and learn more about your specific housing needs.” “Senior and/or workforce” LIHTC housing was taken by the woke Geneva mayor and his administration as a dog-whistle phrase for “insufficiently attainable.”
Can there be any serious belief that the mayor and his staff did not inform the Burton Foundation of the MVAH proposal well in advance of the secret illegal closed-session meeting?
Geneva had an opening offer from MVAH of $400,000 cash for the site (at a time when gifting the site to Burton was the hidden plan, and IHDA’s ultimate mistaken belief) and 50 units of LIHTC affordable housing from a large, experienced, multi-state organization that is highly rated. Geneva threw the MVAH opportunity in the trash. Rather, Geneva chose a small Fellhauer husband and wife firm, an outfit with controversial ties to Geneva. Increasing evidence is accumulating that Emma’s Landing is a product of coordinated fraud. However, The “Geneva Way” dovetails perfectly with the “Illinois Way.” Maybe this explains why Illinois has the second-highest property taxes in the country. Growing out of control: Property taxes put increasing burden on Illinois taxpayers | Illinois Policy
“If I’m a neighbor and I have small children, I’d be pretty concerned,” said Dr. Gabriel Filippelli, a professor, and executive director of Indiana University’s Environmental Resilience Institute. “Once you burn [a] home, the paint degrades and turns into ash. And if there was lead in the bottom layer, for example, that does have the potential then to scatter around and be potentially quite harmful to children.” Bloomington fire exercise believed to have spread lead debris | wthr.com
Site Control Requirements and Deadlines: The Illinois Housing Development Authority’s Distorted View of the Emma’s Landing Application that Genevans Never Saw
The “bait and switch” gambit is alive and well in Geneva. Provided here is the Illinois Housing Development Authority file concerning the required “Site Control” documents for the LIHTC Application #11831 (Emma’s Landing).
The claim that the City of Geneva would donate the land and waive fees for a fraudulent Planned Unit Development Special Use that was granted via Geneva Ordinance 2021-03. Then the PUD Plan was filed with Kane County with the sworn statement by Joy Nelson certifying herself as the owner. The real owner was the City of Geneva. AFTER the Emma’s Landing LIHTC application was approved, AND after the credits were distributed and sold, Mayor Burns WITHOUT authorization from the City Council filed a “correction” that claimed both the City of Geneva AND Joy Nelson owned the PUD parcel.
The improper letter of DeGroot to Manning (page 22 – the red box is on the IHDA document as it was received) relays the Council’s decision to approve the project and donation. This decision was made in a closed session in violation of the Illinois Open Meetings Act so Genevans were left in the dark.
On page 20 of the document is the message from Quigley (for Burton) to Radovich (for Geneva) that says “On Monday, April 13, 2020, 09:43:35 AM CDT, Peter Quigley email@example.com wrote: I realize this is coming at you last minute but the deadline is at 12:00 Is there any way that this can be expedited? Thanks” Mayor Burns and his administrator found “a way” – The “Geneva Way.”
” All of the IAHTCs generated by the City Parcel/ permit fee waivers will be allocated back to the project to obtain equity to fund the projects costs (page 1).” The developer’s fee (and General contractor’s fee) is based on a percentage of the costs. Essentially this is a way of laundering cash equivalents donated by the City to the Burton Foundation, which has one employee, Tracy Manning Fellhauer, and to Deer Creek Construction of which Bryan Fellhauer was one of three controlling managers. The parcel was ultimately sold to Burton for $576,000 but this still put more cash in Fellhauer developer/general contractor pockets since the parcel was valued by IHDA at over $1 mil for purposes of arriving at a project cost total.
Finally, please note that AFTER the successful Emma’s preliminary application, IHDA/Gov. Pritzker announced on July 17, 2020 the LIHTC winners, stating that the City of Geneva donated the Emma’s PUD parcel. IHDA was either duped or resorted to the “wink and nod” tactic embedded in the “Geneva Way.”
“Emma’s Landing (Geneva): A new-construction project by the Burton Foundation will bring 45 units of affordable housing to the western suburbs. The apartments will be spread across 12 townhomes with attached garages built on land donated by the City of Geneva.”21827-LIHTC_Announcement.pdf (illinois.gov)
In the FOIA’ed papers I have in my possession from IHDA I find nothing that alters the “Site Control” contained in the IHDA document attached above. In other words, the City of Geneva was played like a cheap violin by the Burton Foundation to beat an IHDA deadline. The puppet Plan Commission’s ceremonial but meaningless hearings wasted everyone’s time, and the City Council looks like the Ten Stooges groping in the dark. The villains were the Mayor and his personally appointed administrator, who orchestrated the fraud while usurping authority they did not possess.
The Marison Mills Burton Foundation building appears to be under the same management as Emma’s Landing, also a Burton Foundation building. The City of Geneva’s logo is on the Emma’s Landing website, indicating City sponsorship/endorsement.
An attempt will be made to get further information on this situation. However, here is how Mayor Burns views transparency when it comes to “curious” people, even aldermen:
Apparently among Council’s “goals and objectives” are to exploit and violate the Open Meetings Act by secretly setting Emma’s Landing as a goal and appointing Burton Foundation as the developer while cloaking the fact that another developer (MVAH) was interested. MVAH was black-balled because its proposal wasn’t sufficiently “attainable,” which is dog-whistle for insufficiently “woke.”
Now the Council is “permitted” under the “Geneva Way” to submit anonymous questions before each meeting. This, of course, permits the “professional staff” to answer without an opportunity for further probing, or rebuttal. This practice should cease, since it kills deliberation and debate, which is the Council’s primary duty. The above article demonstrates Mayor Burns’ “Geneva Way” of bullying any opposition. He seems to have forgotten that the staff are paid by the people of Geneva and the people are represented by the Council. Although they act the part, the staff members are not the Mayor’s minions.
The City of Geneva has governing and police powers that are limited and defined by the Illinois Municipal Code. 65 ILCS 5/ Illinois Municipal Code. (ilga.gov) The basic form in Geneva is that of a weak mayor/strong council. The mayor has no veto power and only votes in a few situations, including casting a tie-breaking vote (see Dunkin’ Special Use, as an example.) The City Administrator has very limited executive authority and even more limited legislative authority. The mayor and administrator have employed Scope Creep to expand their authority. The Council is either too disinterested or too intimidated to reel in the usurpations.
Examples are the administrator granting unauthorized changes in ordinance-based contracts as seen with the extensions of the government contingency provisions (a free call option) and the reverter provision (a free put option) in the Emma’s Landing sales agreement. Another example is the mayor’s unilateral filing of a major revision in the Ordinance (2021-03) granting Emma’s Landing Planned Unit development special use. The mayor “corrected” the sworn and notarized ownership certifications, but only after the document in question was used to obtain Federal LIHTC Funds. He also did this without the requisite authority created by a majority vote in open session or even the knowledge of all the council members.
By virtue of his very long tenure (into his 6th 4-year term) the mayor has appointed many aldermen and virtually all the upper echelons of professional staff. Many of these people were advanced from within rather than seeking fresh perspectives. Such entrenchment presents risks of fraud and abuse of power. We have seen evidence of both.
How did the City of Geneva Seal get on the Emma’s Landing web page? Who authorized it and when? Was it the same person, Mayor Burns, who upon his own authority fraudulently altered the Final Plat of Emma’s Landing contained in Geneva Ordinance 2021-03? Who owns the management company for Emma’s Landing? Does the owner’s name rhyme with Fellhauer?
The above single-page document 2021K062993 purports to “correct” 2021K033144. The latter document, of course, is the fraudulent Plat of Emma’s Landing Planned Unit Development that certifies in two separate places that Joy Nelson is the owner of the PUD. Document 2021K062993 is a clumsy attempt to retroactively “paper over” a fraud.
If you think the Illinois Housing Development Authority was keeping track of all this, think again. From IHDA’s Press release of July 17, 2020: “Emma’s Landing (Geneva): A new-construction project by the Burton Foundation will bring 45 units of affordable housing to the western suburbs. The apartments will be spread across 12 townhomes with attached garages built on land donated by the City of Geneva.” The Burton Foundation got $18 mil from IHDA and had $576K in spare change to buy the site, albeit at a steep discount to the site’s real value. 21827-LIHTC_Announcement.pdf (illinois.gov)
IHDA uses a 1-100 scoring system in deciding which applications will receive approval. Did Emma’s Landing get points for the land donation? The twenty-one applicants who did not receive grants were defrauded because the City of Geneva duped IHDA into believing the land would be donated until that changed at the last possible moment in a procedural ambush.
Remember that the Fellhauer couple, (aka The Burton Foundation and Door Creek Construction), the developer and general contractor for Emma’s Landing, will each pocket seven-figure fees while putting zero capital at risk. Joy Nelson pocketed $650,000 (more than double the price per acre paid by Burton to Geneva for Emma’s parcel) from her sale of the access road property. That deal was also contingent on Emma’s approval by the City.
Sure, fraud and ambush were necessary to meet deadlines. But this is Kane County where the death of an unleashed dog shot while assaulting a neighbor on his own property is presented to a grand jury, but helpless human victims of official fraud get only added angst amidst the throes of an unprecedented pandemic while being taxed out of their once-affordable homes.
Remember that the fraudulent PUD Plat was statedly “Made for the Burton Foundation” (not Joy Nelson or the City of Geneva)* by David M. Riendeau, a surveyor. Mr. Riendeau signed his Surveyor’s Certificate on the PUD Plat on 9 March 2021. The only other signatures on the fraudulent Plat by 9 March 2021 were those of Mayor Burns and City Clerk Godeskesin. The latter two signatures were dated 22 February 2021. (See excerpt from the fraudulent PUD Plat below.) How, and by whom was Riendeau induced to “find” an owner’s “certificate error” that had nothing to do with the actual survey, the only thing that he personally certified? How was he qualified to decide what constituted an “error” – no supporting evidence was provided. Was he paid for his services related to the “error”? Who, exactly, brought the “error” to his “attention? And, what did this informant have to gain?” Fraud is not an “error” to be corrected by a cover-up, it is a crime to be punished.
Many problems with the “stricken/replaced” document of Burns/Godeskesin/Riendeau exist. The fraudulent Plat of PUD document was a required element in Ordinance 2021-03 passed by the Geneva City Council to grant the Planned Unit Development Special Use. That Ordinance along with the fraudulent PUD Plat were also both required before the deadline set by the Illinois Housing Development Authority for it to fund Emma’s LIHTC grant. The “stricken/replaced” document appeared after IHDA approved Emma’s Landing for funding. The fraudulent document accomplished what its framers wanted.
The “stricken/replaced” document is not a wispy cloud in an otherwise sunny sky that cast a momentary shadow on the real estate title to Emma’s Landing. Now the title is engulfed in a dense fog. Two different owners, the City of Geneva and Joy Nelson, are now certified on the PUD Plat. (Burns/Godeskesin forgot to “change” Joy Nelson’s certification as “owner” for the statute-required identification of School District 304.)
Here is the requirement for City Council Approval of changes in the PUD Plat contained in Ordinance 2021-03:
“SECTION 2: PRELIMINARY/FINAL PLAT OF SUBDIVISION APPROVAL The plans and specifications for this application that are listed below and attached hereto at Group Exhibit “Β” are hereby approνed. Any modifications, changes, updates, or refinements made to any plans and/or specifications after the date of this approνal, except those that are required conditions of approval as set forth in Section 5, or those that are minor or technical in nature, shall require approval by the City Council.” [emphasis added]
Note that the Burns/Godeskesin signatures on the “stricken/replaced” document does not contain the “BY THE CITY COUNCIL” phrase that was included in the fraudulent original PUD Plat City Certification. If a complete change in the identity of the owner is a “minor or technical” “refinement” in a real estate deal, then God save the Republic.
Once again, the mayor and his posse of quislings have ignored the law, including a directly applicable Geneva Ordinance. When was the ownership change in the Emma’s PUD Plat and the “modification” of Ordinance 2021-03 on the City Council’s agenda and what was the vote? Or was it done illegally in a secret session? If you own property in Geneva, be very afraid. You may be the next to be put through the Burns/Dawkins kangaroo process and have your taxes raised and your home made unaffordable.
Where did the City Council and the Mayor plus his puppet Plan Commission find the authority and ethical grounds to make an application to themselves for a Special Use PUD in order to advance a political agenda they themselves created?
A “Special Use” requires the City Council to apply criteria designed to consider adverse effects of an approval, direct and indirect, on nearby Genevans and on all Genevans. Now we learn that the Geneva City Council “…caused the same [Emma’s Landing “property”] to be subdivided and platted.” City of Geneva approved the special use PUD Plat that City of Geneva (caused to be) created???? This is government of the government, by the government, and for the government (plus for the Fellhauers and Joy Nelson (and as yet unknown others?) to the tune of millions of dollars).
The Geneva City Council was inept or was duped if it did not know about the “stricken/replaced” document 2021K062993. The “stricken/replaced” document is not accompanied by an amendment to Geneva Ordinance 2021-03 that had been filed prior and includes the original Plat. The only valid Plat both when the Ordinance was passed and when it was officially recorded with the County was the one existing with Joy Nelson’s certification as the owner. If a Council member knew of the filing of the “correction” without a Council vote, that one member of the City Council is an accomplice to fraud. The title to real estate is not marketable if it includes the product of zoning fraud. Geneva taxpayers “enjoy” that liability.
Who knew about all this, and when did they know it? Call your aldermen and ask them when they approved by majority vote in an open session the “stricken/corrected” document? Ask them if they even knew about it.
*The Geneva Planned Unit Development Code begins with this: 11-9-3: – INITIATION: The owner of the property for which a planned unit development is sought may initiate a request for a special use planned unit development. (Ord. 95-28, 5-1-1995)
Burton Foundation was not the owner of Emma’s Landing until long after the PUD Special Use was approved. The purchase agreement between the City of Geneva and Burton was sweetened “administratively” with a time extension without a Geneva City Council vote taken in an open meeting, although the topic was discussed in an unlawful closed secret session. Many closed session meeting minutes and audio tapes during this time frame have not been released. Why?
Memorial Day is about remembering the individuals who knew where the devil lived and their duty lay. They knew that a single individual’s effort was unlikely to be acknowleged. Richard Best sank the IJN’s premier carrier, Akagi, at Midway on June 4, 1942 with a single one thousand pound bomb dropped from his Scout Bomber Douglas 4 (SBD4) dive bomber (“Slow But Deadly” to its pilots). Best accomplished this with a little luck but primarily by following his Navy doctrine and training coupled with skill and courage. Many other anonymous bombs and bullets also hit their marks that day.
Over the weekend, I visited the final resting place of another WWII Navy Vet who went from Brisbane in ’42 to Tokyo Bay in ’45. He was a meticulous man who believed that details mattered. The Navy made him the ship’s bookkeeper aboard Haddo (SS-255, Gato class submarine). She and several other U.S. submarines were tied up to the Poseidon, a submarine tender, near Missouri when War II ended on 2 September 1945. The Pacific submarine crews suffered a higher mortality rate (20%) than did the 8th Army Air Corps (7.5%) over Europe. Jack made it home and got a job as a record-keeper at the Mark 15 torpedo factory on Roosevelt Road in Forest Park.
Today the assaults on our liberty that earlier generations created and preserved for us are often subtle, difficult to identify, and easier to ignore. An urban myth holds that if you put a frog in a pot of boiling water, it will instantly leap out. But if you put it in a pot filled with pleasantly tepid water and gradually heat it, the frog will remain in the water until it boils to death.
“Fraud” is any activity that relies on deception in order to achieve a gain. Fraud becomes a crime when it is a “knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment” (Black’s Law Dictionary). Frauds committed and then covered up by elected officials and their employees, whether out of personal avarice or for political gain, are acts of sedition and insurrection that destroy liberty.
Here is an example of a “knowing misrepresentation of fact:”
Above the self-proclaimed owner of the Emma’s Landing Planned Unit Development certifies that she is the owner of the PUD parcel and “caused same to be subdivided and platted…” But the City of Geneva owned the PUD parcel and caused (and then self-approved) the PUD to be platted.
Then consider that Joy Nelson was the owner of parcel 12-08-224-00 that abuts the Emma’s PUD and provided the access from Lewis Road for the Emma’s PUD that was actually owned by the City of Geneva on April 21, 2021. Also consider that Joy Nelson sold that abutting parcel to James Bergman on June 29, 2021 for $650,000. Mr. Bergman’s address on the deed is given as 2090 Larkin Ave, Suite 5A-1, Elgin. This happens to be the address of the Burton Foundation that is now listed on the tax bill as the owner of the former Joy Nelson property.
Geneva taxpayers sold the PUD to the Burton Foundation for less than $100,000 per acre while Joy Nelson received over $200,000 per acre, well above the City’s appraisal for Emma’s Landing. The City’s appraisal put the value of the Emma’s site at about $120,000/acre. No doubt Joy Nelson’s sale was contingent upon the approval of the Burton Foundation’s successful application for LIHTC funds which she improperly facilitated by a “knowing misrepresentation of fact.” Most Genevans were victims of that fraud, but some benefitted. Big losers were the 22 applicants for LIHTC funds whose applications were denied in favor of a fraudulent one.
But this could become much worse for Geneva property tax payers. Both buyer (Burton/Bergman) and seller (City of Geneva) knew that the required PUD Plat was fraudulent but the PUD Plat was also a required time-critical element for success in getting LIHTC funding from the Illinois Housing Development Authority’s once-a-year cyle. So the parties winked and nodded simultaneously, as per the “Geneva Way.'” The IRS, IHDA, the Kane State’s Attorney, HUD, the Illinois Attorney General and the HUD IG may not deign to take notice of the “irregularities” in violation of the Illinois Open Meetings Act, unauthorized changes in contracts, and the blatant falsehood that is represented by the Emma’s Landing Planned Unit Development Special Use Zoning Plat.
Ominously, a violation of a city’s zoning ordinance can render the title to Emma’s property unmarketable. https://www.tourolaw.edu/Academics/uploads/pdfs/5_Marketable_WWW.pdf The lenders for the Emma’s Landing project and the underwriters for the LIHTC income tax credits will not go quietly into the good night should the project go into default. Real estate held as collateral that turns out to have an unmarketable, clouded title could make those third parties, including the title insurer, anxious to be made whole by the purveyor of the bad title. Ultimately, that seller’s liability falls upon the Geneva voters and taxpayers.
Geneva has a city government focused more on what it can get away with than on what the statutes and ordinances require. Not one elected, appointed, or employed official has attempted to explain why this fraud was perpetrated. We have descended into local vigilanteism, and likely worse. The devil often now dwells in the “minor” details, and so does the danger to life, liberty, and the pursuit of happiness.
On March 21, 2022, the City of Geneva released some closed session minutes. These minutes recently obtained via a FOIA request raise disturbing questions. This essay compares and contrasts prior City of Geneva declarations with what was said in secret. Two annotated documents and a meeting video are posted here as references.
The Illinois Open Meetings Act begins with the premise that all public business should be transacted in the open for public scrutiny. For understandable and good reasons some discussions should be confidential, but closed meetings are never required. One absolute requirement is that any action must be taken by a formal vote in an open session. The Act requires that the exceptions be construed strictly and narrowly: “The Provisions for exceptions to the open meeting requirement shall be strictly construed against closed meetings.” 5 ILCS 120/ Open Meetings Act. (ilga.gov)
Two OMA exceptions focus on public body property transactions: “5) The purchase or lease of real property for the use of the public body, including meetings held for the purpose of discussing whether a particular parcel should be acquired.” and, “6) The setting of a price for sale or lease of property owned by the public body.” Clearly, exception 5 has no relevance to the sale of the Emma’s Landing City-owned parcel. The motion made to enter a closed session on August 26, 2019, was recorded in the minutes as this: “Closed Session on the Setting of a Price for Sale or Lease of Property Owned by the Public Body.” This was a good start, but it was a Trojan Horse.
The ultimate irony in all this is that when the Ordinance creating the Planned Unit Developed Special Use that is Emma’s Landing was formally passed by the Geneva City Council and duly recorded with the Kane County Recorder, the City listed Joy Nelson as the owner of the parcel, not the City. This is inexplicably bizarre and still stands, rendering the whole process suspect. The solution to the riddle involves a procedural grease gun (vide infra).
The City of Geneva does not take the Open Meetings Act seriously. A motion to enter closed session should cite the exact chapter and verse of the Act’s exemption being invoked. Two issues should be considered: does the exemption cited meet the “strictly construed against” test. If it does, is secrecy needed or desirable? Secrecy is never required by the Act. An example from the set of closed session minutes here presented is the discussion about the old library building. Exemption 5 clearly is applicable. But the old library building is owned by another public body. An open deliberation would have better served the public’s interest. The old building remains as a sunk public asset and is a public liability.
Below are two questions the City posed to itself in July 2020 in a document titled “Just the Facts: Lewis Road Property Donation for Affordable Housing, Updated July 10, 2020.”
“When did the City declare the Lewis Road parcel [Emma’s Landing] surplus and decide to make the property available for affordable housing? On Nov. 18, 2019, the City passed Resolution 2019-97 reconfirming the determination from 2013 and authorized the City Administrator to advertise and negotiate any proposals for the purchase of the property, including monetary and in-kind considerations, subject to acceptance of any contract proposal by the City Council. The Resolution further stated that “Contract proposals that proffer an ‘affordable housing’ project are encouraged and will be evaluated as a City preference.” A Notice of Sale was published and posted on the City’s website requesting proposals for the property by Dec. 4, 2019. “
False. On August 26, 2019, The Geneva City Council held a closed session during which, from the minutes, “The Mayor indicated the consensus tonight is whether the council is willing to consider selling the land, selling the land at a reduced value, or using the land as an investment to encourage development. [City Administrator] Dawkins indicated that it appeared there were no objections from the council regarding any of the options and staff could begin conversations with the Burton Foundation.” The Mayor and City administrator inferred that two City Council actions (one was the “willing to sell,” the other the “to the Burton Foundation”) occurred during the secret meeting. Neither conclusion can be construed as “setting a price for sale or lease.”
“How many proposals did the City receive for the Lewis Road property? In 2019, the Burton Foundation was the only proposal received for the property.”
False. During the same secret meeting of August 26, 2019, referenced above is this: “[Economic Development Director] DeGroot stated that the City has been approached by two developers regarding affordable housing sites; namely the Lewis Road site. Burton Foundation offered a letter of intent to build 49, 2-story townhome units with an initial offer of $700,000 for the City’s property. An additional letter of interest from MVAH Partners out of Ohio was also received, for the same property but with I-story units and a more diverse mix of income levels. Discussion centered on what type of development would be more attainable.” The concept of selling a public real property asset does not meet the “strictly construed against” requirement of the “sell or lease price” exemption 6.
Finally, during the June 7, 2021, City Council Meeting, the extension of the Burton Foundation contract arose. Mayor Burns said this per the minutes: “Burns clarified that, to correct the record, that the city administrator did not grant the extension without consultation with the city council as Nelson had alleged.” Here is the video – begin at about the 50 min mark to get the flavor.
This is what actually happened on the contract extension issue according to the Closed Session Minutes of January 19, 2021 (see document 1 above):
“The meeting’s goal was to determine if there were objections from the Council to granting this extension before Administrator Dawkins granted it, which she had authority to do… Mayor Burns noted that the meeting’s goal was to determine if there were objections that constituted a majority to extending the contract. Ald. Marks objected, several other Ald. stated they did not object, and no other objections were noted. Ald. Kaven asked what specific reason was given for the delay. Burns and Dawkins related that a 180-day limit is standard in such contracts and that the city has extended it in other contracts when the need arose. Burns added that a variety of issues had arisen, most notably the Covid pandemic which has impacted most aspects of doing business.”
Thus, almost a year after “Nelson” raised concern over the Burton contract extension, “Nelson” learns that Dawkins (allegedly) “had the authority to do so” and did it, then asked for permission illegally during a secret session called under a motion citing a non-existent OMA exemption: “CLOSED SESSION REGARDING THE SALE OF REAL ESTATE PROPERTY, Moved by Ald. Bruno seconded by Ald. Marks to adjourn to closed session.” ONLY THE SALE PRICE CAN BE LEGALLY DISCUSSED IN SECRET. Only official action by the City Council taken in open session can materially alter a governmental contract. “Consultation” ratification by a “majority” not objecting is not an action defined in state statute or municipal code. Geneva’s City Hall has been infested with January insurrectionists.
A “consultation” cannot abrogate Illinois law. A city administrator does not rule with the advice and consent of the City Council. In fact, a city administrator serves at the pleasure of the city council. Unauthorized alteration of a City of Geneva contract has Rita Crundwell vibes, even if it was done the “Geneva Way” with a wink and a nod from the mayor.
The mayor’s reference to Covid is shamefully reminiscent of Rahm Emanuel’s “You never let a serious crisis go to waste. And what I mean by that it’s an opportunity to do things you think you could not do before.” In his perpetual emergency proclamations, the Governor advised postponing non-urgent actions until normal face-to-face open meetings could resume.
Geneva had an offer on the table of $700,000 for the land and 49 units. MVAH Partners, a much larger LIHTC housing developer with many more than one employee, never came to Genevan’s attention until now. The City Council finessed the $700,000 down to $586,000 and sweetened the deal with fee and permit kickbacks and a grease gun in the form of an all-Burns-appointees puppet plan commission. Obviously, Burton also got an early secret guarantee that the “process was greased” since speed was of the essence to meet the Illinois Housing Development Authorities’ required deadlines for awarding millions in Low Income Housing Tax Credit grants. Hence the series of ambushes over the land donation issue and the myriad of procedural violations and improper secret decisions not allowed under the Open Meetings Act.
For the record, the Geneva City Council, in the process of breaking the community’s trust, gave away for nothing its most valuable asset, its credibility.
“The owner of the property for which a planned unit development is sought may initiate a request for a special use planned unit development. (Ord. 95-28, 5-1-1995)”
The above quote is from the Geneva Municipal Code. The provision describes how a Planned Unit Development Special Use is to be lawfully considered in Geneva. In less than 60 days between early March and early May of 2022, a 250-unit LIHTC affordable housing project was floated and withdrawn by an out-of-state developer identified as “Cornerstone” for the SW corner of State Street and Kirk Road.
The process was initiated in violation of the plain language of the Geneva Municipal Code. The would-be developer was not “the owner of the property.” Several reasons make this trip-over-the-starting-line comedic pratfall less than hilarious.
First, if rules matter then those who intend to obey them and those who must enforce them should agree on their meanings. Statutes and Codes provide specific meanings for words that their framers judged to be so important that ambiguity should be removed. An example is that the Geneva Code defines “shall” as “must.” For non-defined words, a standard Mirriam Webster dictionary is cited.
The “Geneva Way” of applying words and rules is a wink and a nod.
“Common law” (also known as “case law”) is established by courts of law when a dispute cannot be resolved by reaching a mutual agreement on both the law and the facts. Few ordinary citizens can afford the keys to the courthouse if they believe their rights have been violated by the City of Geneva.
Zoning and land use disputes have given rise to the colloquialism: “In Geneva, you have all the rights you can afford.” This is because the Geneva City Council treats stop signs as suggestions while Illinois law 625 ILCS 5/11-1204(b), “requires drivers to obey all stop signs. Drivers must stop at any intersection with a stop sign before entering the crosswalk or, if there is no crosswalk, at a clearly marked stop line.”
In fact, Geneva Mayor Burns was formerly so zealous in his passion for code-related public welfare that he was a vocal supporter of red-light cameras in Geneva. Or at least he was until the political backlash changed his reasoning. The problem for Geneva property owners now is that the mayor-for-life believes that when the Municipal Code reads “shall” it really means “maybe,” and entire provisions may be totally ignored when they are inconvenient. The mayor orders his appointed and employed underlings to adopt his definitions and unscrupulous tactics.
So, a Genevan whose property rights are ignored by the Geneva City Council when it misapplies its own code has few affordable options. Trust in the process evaporates, ratifying the ever more widely held proposition that rules are only made to be broken.
Second, the Cornerstone application demonstrates a reason the Geneva Municipal Code requires the owner of the property in question to initiate a Planned Unit Development Special Use. The applicant must have “skin in the game” so that the taxpayers are not on the hook to pay for the staff time and expense when a tire-kicker comes to town. The Batavia experience with its One Washington Place project should be a learning experience. Batavia incurred hundreds of thousands of dollars in expenses over many years only to have the developer walk away literally the day before construction was to begin.
Third, if the provision that only allows the property owner the privilege of initiating a Planned Unit Development Special Use is ignored (as it was in the case of Cornerstone) the process will just end with an Approved Planned Unit Development Special Use like Emma’s Landing. Emma’s developer “initiated” the privileged process, and the “official” “owner” never owned the property. The Emma’s Landing fraud, where the City was the real owner and partner in the crime, also literally began with the first step.
Questions about Emma’s Landing, Dunkin’ Donuts, abuse of TIF Funds, Open Meeting Act Violations, ignoring Robert’s Rules, treating the Municipal Code as a list of suggestions, and many more actions of doubtful probity lurk in the shadowy back-rooms of Geneva City Hall. Fraud is too feeble a word to describe the clandestine fabrication of a fake deed land-plat to hustle through the Emma’s Landing swindle. The word fraud inadequately describes the “overlooking” by the City of the required Dunkin’ IDOT Route 38 permit. What about the $31,000 “refund” of electric hook-up fees made to the Dunkin’ developer who does not pay the property tax (in blatant violation of its contract with the City.) What about the corn-maze Special Use for Malone’s Funeral Home where illegal paved street parking encroaches on the public ROW to the sidewalk, handicapped parking encroaches, and code-mandated 2-way parking access is one-way? Much of this was fraudulently described by City Staff and accepted by the Plan Commission and City Council as “pre-existing non-conforming.” Code enforcement for public safety is a distant secondary priority when the political agenda is primary.
Above is a link to the 2021 Dunkin’ property tax bill. Note the “parcel taxes sold” red flag. Also, note that in spite of three years of tax-payer TIF investment “improvements” Dunkin’s taxes are falling. Mine aren’t. Dunkin’ paid $710,000 for the property before the “improvements.” $710,000 is about double the value of my home. The assessor has the Dunkin’ valued at $390,000, about 55% of the purchase price of the parcel in its “TIF” blighted state.
Dunkin’ is in violation of its contract with Geneva taxpayers. The City Council has a fiducial duty to move to void the contract and recover the taxpayer’s expenses in doing so.
Now the City wants to limit my access to information. They claim I am a burden. Yes, transparency can be annoying. They sent me 400 pages of redundant documents that include less than 40 unique pages, then claimed it cost the City hundreds of dollars and published their pull-a-rabbit-out-of-the-hat cost numbers to intimidate me.
“The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt.”
Here is my appeal letter to the Illinois Attorney General.
From: Rodney B. Nelson, M.D., F.A.C.P.
May 14, 2022
To: Public Access Counselor Office of the Attorney General
The City of Geneva has designated me as a “Recurrent Requester.” To that charge, I plead nolo contendere.
The value of many items of information decays exponentially. Actions of local governments often take place within a two-to-three-week period from first appearing on the agenda to final action. This makes standard F.O.I.A. procedures of limited usefulness. The City of Geneva has declined to respond to my informal questions, choosing instead to “ghost” me. Extending the response time to three weeks would render many of my inquiries moot.
Attached is a copy of my F.O.I.A. request that triggered the City’s determination (without due process) of my restricted F.O.I.A. status. Also attached is the City’s response. The issue involved is a successful applicant to the City for public subsidies (T.I.F. and sales tax rebates, etc.) to support a new “Dunkin'” store. The City also granted a special use to the applicant. The store is about 300 feet from my home.
I noted that the approved special use plan included (among many other code violations) encroachments into the public R.O.W. of a city street (Crissey Avenue) and an Illinois state highway (Illinois Route 38). Over a year ago, under F.O.I.A., I requested a copy from I.D.O.T. of the required State of Illinois R.O.W. permit. The Dunkin’ store’s construction was essentially complete, but an I.D.O.T. Permit was required even before the construction started. I.D.O.T. informed me that it had not received an application for a permit.
I.D.O.T., under F.O.I.A. or by phone, has declined to respond to my queries about the status of the permit. In the interim, the applicant has asked for an occupancy permit. My F.O.I.A. request that triggered this appeal is “recurrent,” as indicated in the request. The problem for me is that the letter from the City to the Dunkin’ applicant with a specific list of requirements before an occupancy permit will be considered does not include a due date. So, I cannot get timely information from either I.D.O.T. or the City of Geneva without recurrent F.O.I.A. requests.
The above is background information.
My appeal to P.A.C. is based on the fact that I am the owner, proprietor, editor, and writer of a Geneva-centered news media and non-profit, scientific, and academic entity known as “genevanotes.com.”
Among the purposes of genevanotes.com is to (i) to access and disseminate information concerning news and current or passing events, (ii) for articles of opinion or features of interest to the public, and (iii) for the purpose of academic historical, scientific, or public research or education.
As such, the following Illinois Statutory provision applies: “For purposes of this definition [recurrent requester] requests made by news media and non-profit, scientific, or academic organizations shall not be considered in calculating the number of requests made in the time periods in this definition when the principal purpose of the requests is (i) to access and disseminate information concerning news and current or passing events, (ii) for articles of opinion or features of interest to the public, or (iii) for the purpose of academic, scientific, or public research or education.
I believe reading a sample of the content on my media outlet over the years will demonstrate an honest attempt to provide the information described in the above statute.