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August 7, 2022

Shelby County farm lease back on the agenda with the weakest argument yet.

By Kirk Allen & John Kraft

On May 12, 2021

Shelby Co. (ECWd) –

During a recent Shelby County Farm Committee, the State’s Attorney Nichole Kroncke provided some very interesting comments regarding the legal questions surrounding the leasing of farm ground for private purposes.  A recording of the meeting can be listened to at this link.

Specifically, she is now relying on a perceived legislative intent regarding the counties code on leasing property. (55 ILCS 5/5-1049.2), (floor transcript)

For those not familiar with statutory construction, the courts have consistently pointed to the plain reading of the law to be the intent of the legislature.

“The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. People v. Ward, 215 Ill. 2d 317, 324 (2005). The best evidence of legislative intent is the language of the statute, and when possible, the court should interpret the language of a statute according to its plain and ordinary meaning. In re D.F., 208 Ill. 2d 223, 229 (2003).”

For those that missed it, the courts have said the legislative intent is the language of the statute.  If the court believes they should interpret the language of a statute according to its plain and ordinary meaning and that the best evidence of legislative intent is that very language of the statute, we believe State’s Attorney should do the same.

The State’s Attorney has focused on the word “private” found in an amendment proposed when the law was being debated.  We note we have yet to locate the actual full text of the amendment, which may or may not be close to what was actually discussed in 1993.

“My understanding is the language is drafted so they can lease either to a government agency or to a private interests that may be interested in additional office space……”

What she is doing is relying on one person’s understanding of an amendment that more interestingly never resulted in being actual language found in the law. Even if the law was adopted as worded in the discussion, private interests do not mean private purpose.  There are plenty of examples of private interest entities operating in a fashion that has a public purpose, which is the real measure of the legality when leasing to a private interest.  The Attorney General has made it crystal clear as it relates to the County government. There is no public purpose with leasing to a private farmer.

What she avoided pointing out was the alleged purpose behind the amendment was to allow Kankakee County Board to lease surplus property.

We make a special note that if legislative intent is to be relied upon, the debate language should at least be close to what ended up in the actual law, which in this case is far short of that mark. The short discussion on the amendment pointed to the desire to permit the Kankakee County Board certain powers over surplus property, which we note never became law as it makes no mention of Kankakee County nor surplus property!

If the State’s Attorney believes legislative intent carries the weight of law, maybe she should fire Ed Flynn from further representation of the county?  The legislative debate language in the law that permitted the hiring of a Special Assistant State’s Attorney said it was for complex litigation and clearly Flynn was not hired for complex litigation.

We also must emphasize, Shelby County farm ground is not surplus property, which is an important distinction when reading the plain language of the law.

What does the statute say?

55 ILCS 5/5-1049.2) Sec. 5-1049.2. Lease of county property. The county board may lease real estate acquired or held by the county for any term not exceeding 99 years and may lease the real estate when, in the opinion of the county board, the real estate is no longer necessary, appropriate, required for the use of, profitable to, or for the best interests of the county. The authority to lease shall be exercised by an ordinance passed by three-fourths of the county board members then holding office, at any regular meeting or at any special meeting called for that purpose. However, the county board may authorize any county officer to make leases for terms not exceeding 2 years in a manner determined by the Board. Source: P.A. 88-526.)

There does not appear to be any confusion in what the law says.  The county can lease their real estate but only under very specific conditions and considering there is zero references to leasing for a private purpose, Article VIII Section 1 of our State Constitution still applies, which requires the use of the public property to be for a public purpose.  Simply making money from the farm does not meet the public purpose threshold.

“may lease the real estate when, in the opinion of the county board, the real estate is no longer necessary, appropriate, required for the use of, profitable to, or for the best interests of the county.”

It is clear Shelby County believes the property is necessary, appropriate, required for the use of, profitable to, or for the best interest of the county.  We say it’s clear because they are going out of their way to justify why they can lease it so they can continue making money from it.

Clearly, the plain reading of the law, as well as Article VIII Section 1 of our State Constitution, are being ignored in their new attempt to ignore the standing Attorney General Opinion on County Government leasing farm ground.

We now find that two ordinances have been prepared for Thursday’s county board meeting and I have to admit that I am shocked to see what was actually drafted because it defies all logic in this situation.

“WHEREAS, the Shelby County Board has determined by three-fourths of its members that the County Farm is no longer necessary, appropriate, required for the use of, profitable to, or for the best interests of Shelby County;”

The simple questions must be asked and answered.

  • If the farm is no longer necessary, why not declare it surplus property and sell it?
  • If the farm ground is no longer appropriate, why not declare it surplus property and sell it?
  • If the farm ground is no longer required for the use of the county, why not declare it surplus property and sell it?
  • If the farm ground is no longer profitable to the County, why not declare it surplus and sell it?

And the elephant question in the room….

  • If we lease the farm ground, what is the public purpose?

The truth of the matter is the farm ground has value to the county in the form of making money and that is why they wish to keep it and continue as they have for years.

If these ordinances end up passing, which will require 17 votes of the 22 members, we are confident the action will be challenged in court through a declaratory judgment action.

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2 Comments
  • E. Norma Stitz
    Posted at 22:06h, 13 May

    Sell the Courthouse. Sell everything the county owns. Get rid of the entire governing body. Then you sorry SOB’s won’t have a reason to come to Shelby County anymore. Keep the Dog Catcher though, he might come in handy when the Edgar County strays show up.
    #Mangy #Wormy #KeepItStirred #BiteBack

  • NMWTLS
    Posted at 07:11h, 15 May

    Re: “Get rid of the entire governing body” ……not a bad idea at that. Attention everyone! Check your property tax bill and see just how many government entities you are supporting. How can we truly keep an eye on them? Think how many meetings you would have to attend monthly! Thank goodness for ECW to help keep an eye on them!

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