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.

Who would trust this puppet Geneva City Council?

 

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.

https://kaneil.devnetwedge.com/parcel/view/1202355001/2021#Exemptions3

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

500 South 2nd Street

Springfield, IL 62706

Fax: 217-782-1396

E-mail: publicaccess@atg.state.il.us

RE: Appeal of Recurrent Requester Determination

Dear P.A.C. Counselor:

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.

Rod’s Ramblings and Ruminations – Lore & Legend of Geneva, Fox Valley, Illinois & Beyond (genevanotes.com)

Thank you for considering my appeal.

Sincerely,

Rodney B, Nelson, M.D., F.A.C.P., Former Major, USAF

Most Geneva real estate property owners received their property tax bills within the last week. 

Here is what Genevans were told about property tax on Emma’s Landing – presented in a “Just the Facts” publication on July 10, 2020, by the Geneva City Council as an incontrovertible “fact.”

“Do affordable housing developments pay real estate taxes? If so, are affordable housing developments assessed at the same rate as market-rate developments?”

Affordable and market-rate developments are taxed at the same rate as determined by the Geneva Township Assessor.”

True or False?

Correct Answer: FALSE.

Parcel 12-08-225-002 is the Emma’s Landing Low Income Housing Tax Credit project on Lewis Road in Geneva. 

This morning at 5:03 am a Geneva Tax Assessor search-by-parcel returned this: There is no record for parcel 12-08-225-002. This morning at 5:04 am a Geneva Tax Assessor search-by-name “Burton Foundation” returned this: Internal Server Error.

However, a search of the property tax map yields a 2021 tax bill for Burton Foundation for parcel 12-08-225-002. The link is here: Parcel Details for 1208225002 (devnetwedge.com)

The owner is listed as “Burton Foundation” and the legal description is listed as “EMMAS LANDING PUD LT 14.” The details are:

Property Class8000 – Exempt	Tax CodeGE005 –	Tax StatusExempt
Net Taxable Value0	Tax Rate0.000000	Pay TaxesPrint Tax BillTotal Tax$0.00

Here is the “Sales History:”

2021 2021K067794 Special Warranty Deed 7/2/2021 CITY OF GENEVA THE BURTON FOUNDATION $576,000.00

The Mayor signed the warranty deed authorized by the City Council by passing Ordinance 2021-03 in March 2021. That Ordinance contains a fraudulent Final Plat of Planned Unit Development. The officially recorded Plat of Survey was not signed by the owner of the property as required. The owner was the City of Geneva in March 2021. The person who certified that she was the owner was not then, nor ever, the owner.

Special Warranty Deed 2021K067794 is invalid as it is based upon a fraudulent document.

Eventually, a non-zero-dollar property tax bill will be created for Emma’s Landing, but the City Council’s “TAX FACT” will still be false, because the Council’s assertion that “Affordable and market-rate developments are taxed at the same rate as determined by the Geneva Township Assessor” is false.

LIHTC affordable housing is taxed under a totally different statute and procedure than “market rate” homes like yours and mine. Call your alderperson and ask for a detailed explanation of how this mess came about (and who benefitted?) and what is planned to correct the fraudulent basis of Emma’s LIHTC affordable housing project.