Defendant-appellee, the Village of Robbins (Village or Robbins), established a tax increment financing(TIF) district for land that was to house an incinerator. Plaintiff-appellant, the Board of Education of High SchoolDistrict No. 218 (Board or plaintiff), along with coplaintiffs, a local elementary school district and a communitycollege district, challenged the adoption of TIF by the Village, claiming that the proposed site violated both the TaxIncrement Allocation Redevelopment Act (65 ILCS 5/11-74.4-1 et seq. (West 1994)) (the TIF Act), and theIndustrial Project Revenue Bond Act (65 ILCS 5/11-74-1 et seq. (West 1994)) (the Bond Act).(1) The circuit courtentered summary judgment in favor of defendant on counts II through VI and count IX of plaintiff's amendedcomplaint and conducted a bench trial on the remaining counts I, VII, VIII, and X. The court then entered finaljudgment on all counts in favor of defendant, and the Board now appeals the court's disposition of all 10 counts. Theonly question on the pleadings is whether the defendant should have been allowed to amend its answer to plaintiff'scomplaint after the trial was completed. For the reasons that follow, we affirm the trial court's dismissal of all 10 ofplaintiff's claims.

Robbins is an impoverished community located south of Chicago in Cook County, Illinois. Plaintiff is aschool board whose taxing district includes parts of the Village, including some of the real property at issue. In thecase below, plaintiff challenged the Village's use of TIF in connection with the financing and construction of a $400million waste-to-energy facility on a site located west of Kedzie Avenue and south of the Cal Sag channel (the CalSag site). Mainly, it argued that it was adversely affected by the Village's designation of the site as aredevelopmentproject area (RPA).

"Under the TIF Act and city ordinances, taxes on incremental increases in the equalized assessed value ofproperty within the TIF district are to be collected by the county treasurer, remitted to the city treasurer, depositedinto a special allocation fund and spent on statutorily approved expenses of the TIF district."In re Application of theCounty Treasurer & ex officio County Collector of McDonough County, 283 Ill. App. 3d 913, 914 (1996). In otherwords, the TIF Act authorizes municipalities to encourage redevelopment of blighted property by freezing real estatetaxes and offering the developer the value of future incremental property taxes to be generated as a result ofimprovements to the property. As the trial court noted, "[w]hile the TIF Act speaks in terms of depositing theincremental taxes in a special fund and using them to pay eligible project costs, the practical effect of using TIF is tocap -at pre-improvement levels- the real estate taxes on the property for up to 20 years." The plaintiff, which wouldotherwise be receiving a portion of the incremental taxes from the Cal Sag site, sought a declaratory judgment thatthe Village's ordinance designating the property as an RPA violated the TIF Act.

Most of the relevant facts are undisputed. In as early as 1983, the Village sought to bring a waste-to-energyfacility to the Cal Sag site. In its efforts to attract such a facility, the Village began offering TIF and other economicincentives. After one developer failed to proceed, the Village began to negotiate with Reading Energy (Reading)and, in 1988, entered into a written development agreement. In that agreement, the Village agreed to provideReading with economic incentives, including TIF, to induce the construction of an incinerator at the Cal Sag site. The Village passed, by resolution, the 1988 development agreement on December 27, 1988.

In the next few years, Reading (with the Village's assistance) conducted a significant amount of work thatneeded to be completed before the facility could be financed and built. Some of this work included acquiring theapproximately 100 parcels of land comprising the site, obtaining siting permits, developing engineering andarchitectural plans, securing environmental approvals, pursuing waste tipping contracts with other municipalities andwaste haulers, and entering into conditional electricity and recycling contracts.

However, even with the Village's promise to provide TIF (along with millions of dollars of municipal bondfinancing), it became apparent that Reading could not finance or construct the facility on its own. Consequently,Reading contracted with Robbins Resource Recovery Partners (RRRP), a subsidiary of Foster Wheeler Corporation(FW, and collectively, FW/RRRP or the developer). FW/RRRP's involvement was necessary because it had therequired technology, the engineering and operations expertise, adequate capital, and the necessary experience andreputation to attract an estimated $300 million from the financial community. Plaintiff never disputed that Readingcould not have completed the project on its own.

In August of 1994, FW/RRRP informed the Village in writing that it was relying upon, and could notreasonably anticipate proceeding without, the TIF support that had been promised to Reading. Similarly, Smith-Barney, which underwrote the bond financing for the project, informed the Village in writing that there was asignificant risk that the project could not be financed even with the TIF support and that such a risk would be"materially greater" without the pledged TIF revenues.

No other developers ever expressed an interest in the Cal Sag site or any other site in Robbins. In fact, as of1994, the Village had no commercial or industrial businesses and could not, despite substantial efforts, attract even agas station, convenience store, or dry cleaner. Accordingly, on August 30, 1994, the Village passed the TIFordinance. In so doing, the Village relied upon, inter alia, (i) the blighted condition of the Cal Sag site and the restof the Village; (ii) the poor economic condition of the Village; (iii) the absence of any growth and development, orreasonable prospects of growth and development, at the site or in the rest of the Village; (iv) the 1988 developmentagreement and the developer's reliance thereon; (v) the lack of any other interest in the site; and (vi) the writtencommunications from the developer and the underwriter confirming the need for the TIF. The Village also reliedupon numerous consultants and attorneys, including nationally recognized TIF experts, who all concluded that TIFwas necessary and proper.

Thereafter, the Village issued $385 million in industrial development bonds, pursuant to the Bond Act, tofinance the construction of the facility. It then entered into a mortgage agreement under which it pledged theincremental revenues it would have received to pay principal and interest on the bonds. Included in that pledge was"the present and continuing right to make claim for, collect, receive and receipt for any Incremental Taxes, and tobring actions and proceedings for the enforcement of its rights with respect thereto." Further, Robbins covenanted asfollows:

"As long as any Series 1994A Bonds are Outstanding, the Issuer will continue to deposit theIncremental Taxes into the Special Tax Allocation Account. The Issuer covenants and agrees withthe Series 1994A Bondholders that so long as any Series 1994A Bonds remain outstanding, theIssuer will not take any action or fail to take any action which in any way would adversely affectthe ability of the Issuer to collect the Incremental Taxes."

The bond proceeds were used to finance the construction of the facility, the outfitting of the facility, and thereimbursement to RRRP for prior development costs.

Robbins then entered into several leases and agreements with RRRP whereby RRRP agreed to pay rent andother benefits to the Village, all of which were dated September 15, 1994, and adopted by resolution. The rents thedeveloper agreed to pay the Village for the period under TIF (1997 through 2016), as determined by the Village'sfinancial consultant, added up to $65,950,280.

Plaintiff brought suit on September 28, 1994, and in its amended 10-count complaint it argued: that theVillage's finding that the RPA was not subject to growth and development through investment by private enterpriseand would not reasonably be anticipated to be adopted without TIF was erroneous (count I); that the redevelopmentplan approved and adopted by the Village did not satisfy the statutory requirements of the TIF Act for redevelopmentplans in general (count II); that the leases and other agreements between the Village and the developer were void(count III); that the facility is a tax-exempt facility, and as such, the Village's redevelopment plan would not enhancethe tax base of the underlying districts (count IV); that the Joint Review Board was not provided with sufficientinformation by the Village to make its statutory determination as to whether the proposed redevelopment satisfied therequired eligibility criteria (count V); that the Village did not hear and determine the objections at the public hearing,as required by statute (count VI); that section 11-74.4-7.1 of the TIF Act required the Village to agree to pay theother taxing districts 25% of the cost of the building (count VII); that the Village has improperly utilized TIF becauseit failed to adopt an ordinance and provide for the distribution of surplus in the special TIF fund, because the facilityis a private building and is not eligible for TIF, and because tax increment revenues cannot be used to cover priordevelopment costs (count VIII); that the Village never had a comprehensive plan, as required under by statute (countIX); and that under section 11-74.4-10 of the TIF Act, the Village was required to deposit revenues received from itsleases with the developer into the special TIF fund (count X).

Prior to trial, the court considered plaintiff's motion for summary judgment on counts II, III, and V throughIX, and defendant's motion for summary judgment on counts I through IX. Plaintiff also moved to strike the affidavitof the mayor of Robbins. The court struck the affidavit, granted summary judgment to defendant on counts IIthrough VI and count IX, but denied defendant's motion with respect to counts I, VII, and VIII. Plaintiff's motionwas denied as to all counts. Consequently, the only issues raised at trial were with respect to counts I, VII, VIII, andX. The case was tried in October and November of 1999. On July 12, 2000, the court entered an order finding forthe Village on the remaining counts. In the proceedings before us, defendant has appealed the court's entry ofsummary judgment on counts II through VI and count IX, as well as its July 12, 2000, judgment on the remainingcounts. Moreover, plaintiff now argues that the Village's expert witness, Patricia Curtner, should not have beenallowed to contribute to counsel's closing argument after trial and that Robbins should not have been allowed toamend its answer to plaintiff's complaint after trial. In the interests of economizing space, our opinion will addressonly those issues that have the most direct impact on the trial court's decision. Accordingly, our discussion of theremaining issues will be nonpublishable under Supreme Court Rule 23. (166 Ill. 2d R. 23).

[Nonpublishable material under Supreme Court Rule 23 omitted here.]

Regarding the issues that were decided at trial, we first note that the parties disagree as to our standard ofreview. Plaintiff argues that because these issues all entail the trial court's interpretation of the relevant statutes andtheir application to the facts, the trial court was engaged in questions of law, which are subject to ade novo review. See Department of Public Aid ex rel. Davis v. Brewer, 183 Ill. 2d 540, 554 (1998). As further support for thisstandard, plaintiff continues, this court is being asked to construe several provisions of the TIF Act and the Bond Act- in many instances as a matter of first impression.

Defendant responds that with respect to the remaining issues, they were decided after a trial in which thecourt made numerous findings of fact. Specifically, the court found that the Cal Sag site was blighted, had not beensubject to growth and development through investment by private enterprise, and would not be reasonably anticipatedto be developed without the adoption of the TIF redevelopment plan. Moreover, it citesCity of Chicago v.Boulevard Bank National Ass'n, 293 Ill. App. 3d 767 (1997), for the proposition that the Village's ordinances have apresumption of validity. There, this court stated:

"When a party challenges a municipality's TIF ordinances, that party is required toovercome the ordinances' presumptive validity by clear and convincing evidence. CastelProperties, Ltd. v. City of Marion, 259 Ill. App. 3d 432, 439 (1994). Clear and convincingevidence is that 'quantum of proof that leaves no reasonable doubt in the mind of the fact finder asto the truth of the proposition [stated].' Bazydlo v. Volant, 164 Ill. 2d 207, 213 (1995)."Boulevard Bank, 293 Ill. App. 3d at 780.

Accordingly, defendant claims that the proper standard of review is for this court to determine whether the trialcourt's findings were against the manifest weight of the evidence.

While the defendant is correct as to the proper standard, it is only partially accurate as to why it is to beapplied. To be sure, the trial court made findings of fact in rendering its decision. It is well established that onappeal, a trial court's findings will not be set aside unless clearly contrary to the manifest weight of the evidence.Reed-Custer Community Unit School Dist. No. 255-U v. City of Wilmington, 253 Ill. App. 3d 503, 508 (1993). However, in both parties' arguments regarding whether the ordinances are otherwise presumptively valid, it appearsthat they have confused the effect of a presumption with the standard of judicial review in the circuit court. Plaintiffargues that "[o]nce a party introduces sufficient evidence to rebut a presumption, the 'bubble bursts' and thepresumption disappears." Reed-Custer, 253 Ill. App. 3d at 508, citing In re Estate of Kline, 245 Ill. App. 3d 413, 424(1993). Nonetheless, to overturn a TIF ordinance, plaintiff must prove by clear and convincing evidence an abuse ofdiscretion by the municipality. City of Batavia v. Sandberg, 286 Ill. App. 3d 991, 1003-04 (1997).

Such propositions, however, have nothing to do with the standard of review before this court. In the presentcase, the presumption existed that Cal Sag site was blighted, had not been subject to growth and developmentthrough investment by private enterprise, and would not be reasonably anticipated to be developed without theadoption of the TIF redevelopment plan. Regardless of whether plaintiff was able to introduce evidence to thecontrary to vanquish that presumption, the trial court determined that plaintiff had not met its burden of proof inshowing, through clear and convincing evidence, that the municipality had abused its discretion in passing therelevant TIF ordinances. And, with regard to this court, "[t]he fact finder's determinations will not be disturbedunless clearly contrary to the manifest weight of the evidence." Boulevard Bank, 293 Ill. App. 3d at 780, citingReed-Custer, 253 Ill. App. 3d at 508. Accordingly, "[t]he decision of the trial court is against the manifest weight ofthe evidence if a review of the record clearly establishes that the decision opposite to the one reached by the trialcourt was the proper result [citations]." Boulevard Bank, 293 Ill. App. 3d at 780.

With regard to count I of its complaint, plaintiff asserts that the finding by the Village that the RPA was notsubject to growth and development through investment by private enterprise and would not reasonably be anticipatedto be developed without the adoption of the redevelopment plan was erroneous, arbitrary, unreasonable, and false. Presumably, therefore, plaintiff is also asserting that the trial court's affirmation of the municipality's grant of the TIFordinances is against the manifest weight of the evidence. The TIF Act prohibits the adoption of a redevelopmentprogram unless the municipality can make such a finding. See 65 ILCS 5/11-74.4-3(n) (West 1994). As a result, it iscommonly referred to as the "but-for" finding. Plaintiff argues that, as a matter of law, when a project has beenunder prior development for six years and a developer has been obtaining permits, acquiring property, enteringcontracts, and investing millions of dollars into the site, a municipality cannot find that the area has not been subjectto growth and development or would not reasonably be anticipated to be developed without TIF. Ultimately, the cruxof plaintiff's argument is that the developer would have proceeded with the facility even if it had not received TIF.

Plaintiff stresses the facts that show that,at the time that the Village made its "but-for" finding, theincinerator project had already been under development for more than six years. Specifically, the site for theincinerator had been selected in 1988, and as of September 15, 1994, RRRP represented that it had invested$37,418,200 in the proposed area. Plaintiff also points to the many permits obtained, that FW started to clear theland on August 1, 1994, and that construction started immediately after the TIF ordinances were passed. TheVillage's own TIF ordinance states that Robbins and the developer have "continuously attempted to implement theconstruction, acquisition, installation, and operation of the Facility" since December 27, 1988.

Plaintiff also argues that a determination that an area is "blighted" will not satisfy the requirements of the"but-for" test. While blight is one of the prerequisites to the adoption of TIF (65 ILCS 5/11-74.4-3 (West 1994), theRPA must also meet the "but-for" requirement mentioned in section 11-74.4-3(n)(J)(1) of the Act:

"No development plan shall be adopted unless a municipality complies with all of the followingrequirements:

(1) the municipality finds that the [RPA] on the whole has not been subject to growth anddevelopment through investment by private enterprise and would not reasonably be anticipated tobe developed without the adoption of the redevelopment plan." 65 ILCS 5/11-74.4-3(n)(J)(1)(West 1994).

Plaintiff argues that it never contested that the Village was blighted, but that a blighted community may still besubject to a great deal of growth and development through investment by private enterprise. Accordingly, it asks thiscourt to look beyond the Village's portrayal of itself as the victim, and to instead look to what the "but-for" testactually requires.

Finally,(2) plaintiff argues that the TIF revenue was really diverted directly to the Village in the form of rent-something even more damning than the evidence of private investment. Put another way, the TIF revenue, which is aproperty tax revenue that would normally belong to the Village's neighboring taxing bodies, was intended to be usedas a source of funds from which Robbins could be paid rent under the leases. Plaintiff claims that the Village had noexplanation for this correlation other than "coincidence."

Plaintiff points to the testimony of its expert, Kevin McCanna, to bolster its claims. At trial, he testified thatit was his opinion that TIF was not necessary for the project, that it was not necessary to sell the bonds, and that itwas not necessary for the developer. Further, it was his opinion that the project would have gone forward withoutTIF. According to the projected revenues and cash flows that were supplied to Mr. McCanna, he opined that theadditional revenue from TIF was not necessary to the project, and that those revenues were sufficiently high tosupport debt service on the bonds without TIF.

Moreover, it was Mr. McCanna's opinion that the real purpose of TIF was to provide a source of revenuefrom which the developer could pay the Village its rent under the leases. Using the data from the J.P. Morgan studythat the Village commissioned, McCanna added up the rents and found that the amount the Village was to receiveduring the life of the TIF was $65,952,090, and the projected TIF revenues were $66,153,000. This similarity(which is within $50,000) indicated to McCanna that the rents were based on the property taxes, which in turnindicated that the Village was the party that really wanted TIF. He also noted that the jump in property taxes after2008 and the corresponding jump in the rent to the Village after 2008 indicated that rent was fashioned to reflect thesame pattern as the property taxes. It was McCanna's opinion that, at the time that TIF was adopted in 1994, thedeveloper and Robbins were using TIF to divert the property taxes away from the other taxing bodies to the Village.

The Village responds that the developer's activities before August 30, 1994, were only undertaken pursuantto the Village's promise of TIF support. According to the 1988 development agreement, the Village promised toprovide TIF support in connection with the development of a waste-to-energy facility at the Cal Sag site. The Villageclaims that almost all of the development activities and expenditures came about after the promise of TIF supportand were carried out in reliance upon it. Accordingly, it claims that plaintiff's argument ignores the 1988development agreement and the developer's reliance on it. Also, it asserts that plaintiff offered no facts to explainwhy the 1998 development agreement did not legally obligate the Village to make good on its promise of TIFsupport, as the law is clear that a municipality has a "duty to take reasonable steps to prevent the contracts it signscontingent on formal approval from collapsing." Heritage Commons Partner v. Village of Summit, 730 F. Supp. 821,825 (N.D. Ill. 1990) (holding that a municipal contract to be financed out of a special fund, such as TIF is valid).

Such a contention, it continues, has ample evidentiary support. Two of its witnesses, Mr. DiBiassi -ofReading- and Mr. Karpenski -the president of development at that time for FW- repeatedly testified that all of theirefforts prior to August 30, 1994, were designed to obtain the financing to build the plant. Moreover, the Villageclaims, plaintiff offered no contrary evidence or any evidence whatsoever of an irrevocable or predeterminedcommitment of the developers that the project would be built without financing. As the plaintiff points out in itsreply brief, however, the 1988 development agreement contemplated, through reference to the 1988 lease, a privatelyowned facility. TIF revenue cannot be used to finance the construction of privately owned buildings. See 65 ILCS5/11-74.4-3(q)(12) (West 1994). Accordingly, when the 1988 agreements were entered, it would have been legallyimpossible to use TIF revenue for what the developer then intended to be a private facility. Thus, plaintiff concludes,the purported promise of TIF was illegal and void, and the Village cannot abide by a "promise" of TIF that would beinvalidated by its own terms.

Alternatively, the Village asserts, since it is undisputed that the "but-for" finding would have been proper in1988 when the Village agreed to provide TIF support, the fact that the developer engaged in predevelopmentactivities in reliance on such promise cannot be used to question the validity of the Village's determination. Otherwise, it argues, municipalities would be unable to offer TIF support before formally approving TIF, whichwould undermine the use of TIF to develop blighted areas - the true purpose of the TIF Act.

The Village also responds that the trial court was correct in affirming the municipality's conclusion that theCal Sag site had not been subject to growth and development prior to the adoption of TIF because such efforts wouldnot have amounted to anything had the Village not obtained the financing to build the project. Specifically, it notesthe trial court's finding that "[w]ith the possible exception of a foundation for a stack (that was poured in order tomaintain a permit), there [were] no improvements to, and therefore no growth at, the Cal Sag site before August1994." It also notes the testimony of Phil McKenna, a nationally known TIF expert who visited the site immediatelyprior to August 1994 to prepare a report on whether it qualified for TIF. McKenna testified that the site was vacantexcept for junk and abandoned buildings.

The Village admits that while the developer spent substantial sums on land acquisition, site clearing,architectural and engineering plans, and local state and federal permitting, the TIF Act focuses not only on"investment" but also on whether that investment has resulted in actual "growth." Accordingly, it points to the trialcourt's conclusion that the term "growth" in section 11-74.4-3 of the TIF Act "necessarily contemplates newbuildings or improvements that increase the value and the tax basis of the property." Here, there is no evidence, andplaintiff does not dispute, that the value of the Cal Sag site had not increased prior to the adoption of TIF. Obviously, defendant concludes, if the Cal Sag site remained blighted prior to the August 1994 enactment of TIF, asplaintiff has stipulated, the site has not been subject to any meaningful growth and development.

The Village further responds that the TIF Act's "but-for" test is whether a site would reasonably beanticipated to be developed without TIF, not whether a particular developer might have proceeded without TIF. TheVillage argues that "the touchstone for adopting TIF is the physical and economic condition of the property, not thepeculiar circumstances of an individual developer." Even the language of section 11-74.4-3(n)(J)(1) of the TIF Act(the "but-for" test), on which plaintiff relies, focuses on the condition of the site, not the internal decision-making ofthe developer. As the trial court concluded:

"[T]hat a municipality must focus upon the blighted nature of the site in adopting a redevelopmentplan (i.e., in adopting TIF) is further confirmed by the [TIF] Act's definition of such a plan. Aredevelopment plan is a program to eliminate those conditions the existence of which qualified theredevelopment project area as a 'blighted area.' TIF Act [section 11-74.4-3(n)(1)]. Thus, themunicipality must consider the 'blighted' nature of the property in order to 'reasonably anticipate'whether a redevelopment plan, and therefore TIF, is warranted. Rather than being irrelevant, theblighted nature of the site is the thread that ties the TIF Act together."

Thus, despite plaintiff's entreaty, the Village argues that the primary job of the municipality -and therefore the trialcourt- was to consider the condition of the land, not the condition of the developer.

The Village next responds that since TIF was necessary to the developer and to the financing of the project,the "but-for" test, even as suggested by the plaintiff, is satisfied. For this, it points to the trial court's conclusion thatthe developer needed TIF to meet its minimal investment return threshold and to eliminate the risk of a crippling taxassessment:

"TIF was necessary to the developer for at least two reasons. First, the lowest projections of futureincremental property taxes for the improved property start at $1.5 million and increase to over $6million a year, totaling $66 million over the 20-year life of a TIF. (PX 69.) Based upon thisestimate, the TIF would have increased RRRP/FW's projected net profits by approximately 20%,raising its after-tax rate of return from about 12% to 15%. Since 12% was significantly lower thanany previous Foster-Wheeler project, and 15% was as low as management was willing to go, TIFmade the difference on the project proceeding. This was particularly true in light of the evidencethat RRRP/FW believed there was a significant risk that these projections would not be met, asindeed it had turned out. In this regard, the project is failing even with the TIF, due in part to[plaintiff's successful effort to cause the legislature to repeal] the Retail Rate Law, which loweredactual electric revenues 50% below projections, thereby resulting in over $200 million in losses anda project that is destined for bankruptcy.

Second, TIF was necessary to the developer because no one knew what the taxes wouldbe. There was no way to obtain a preassessment from the assessor; there were no incinerators touse as comparables, which limited the validity of any valuation; and there was no way to know ifthe huge boilers, which incinerate the trash, would be considered personal property, and since therewas at least one prior instance in another state where the boilers were assessed as real property, TIFeliminated what easily could have been a doubling or tripling of estimated taxes. For example,RRRP/FW ordered an appraisal in 1994, which determined that the fair market value of the facilityapproximated the cost of construction, i.e., $400 million. Any assessment based upon such a fairmarket value would have eliminated any possibility of profits. [Accordingly, the TIF wasnecessary] to channel any large tax assessment back to the project to pay eligible costs."

The Village notes that the evidence adduced by plaintiff at trial demonstrates factual support for this findingas well. Mr. Karpenski, as a witness called by the plaintiff, testified that TIF raised the expected after tax rate returnfrom 12% to15%. Not only was this a 25% increase due to TIF, but Karpenski's testimony also revealed thatRRRP/FW would not have accepted a lower rate of return on its $100 million equity investment because of the risksassociated with the project.

Moreover, the Village asserts that for the project to occur, third-party financing had to be obtained. Toobtain such financing, the Village issued industrial development revenue bonds (IRBs) to be repaid from projectrevenues and partially secured by incremental property taxes, i.e., the TIF revenues. Obviously, the only way for theunderwriters to sell the bonds was to be able to convince buyers that the debt would be repaid, namely, that netrevenues from the facility would exceed the principal and interest due on the bonds. As stated above, however, noone knew what the tax assessment was going to be. This led to Smith-Barney's specific advice to the Village that itshould adopt TIF. It stated:

"If the Series A bonds were not secured by the pledged TIF revenues, the risk of failure to obtainfinancing would be materially greater. Availability of the Pledged TIF revenues raises thecoverage of the project revenues over debt service, and reduces the disposal fee at which the 80%of uncontracted disposal capacity can be sold. *** The project is economically unfeasible without asuccessful sale of the Series A tax exempt bonds."

The Village also claims that McCanna's testimony that TIF "was not necessary for the developer" was simply a baldassertion and was not based on any calculation or analysis that disputes RRRP/FW's expected rate of return.

Lastly, the Village states that the rent paid to it by the developer was proven to be fair and reasonable and inno way undermines the TIF adoption. The Village argues that plaintiff cannot argue that the amount of the lease isunreasonable or unnecessary. As the trial court found, the only evidence concerning the propriety of these paymentswas an independent study performed by J.P. Morgan that established:

"[T]hat the payments to the Village under the Facility Site Lease and Host Benefits agreement are'fair and reasonable.' The study was based on a review and analysis of payments by developers ofhost benefits to governmental units in 26 similar situations, and has nothing to do with the adoptionof TIF."

The Village points to section 11-74.4-4(g) of the TIF Act which allows a municipality "within a development projectarea [to], fix charge and collect fees, rents, and charges for the use of any building or property owned or leased by itor any part thereof, or facility therein." 65 ILCS 5/11-74.4-4(g) (West 1994). Given the evidence regarding thereasonableness of the rent payments, the Village concludes the trial court's finding conforms to the manifest weightof the evidence. As the court held, "since plaintif[f] presented no evidence that these lease payments to the Villagewere not necessary, fair, and reasonable, and since such lease payments are expressly allowed under [section 11-74.4-4(g)] of the TIF Act, plaintiff's argument fails."

We agree with the trial court that, under plaintiff's theory, if a city promises to provide TIF support and adeveloper relied on such a promise by proceeding with predevelopment activities, the city could never make good onits promise. In reviewing the TIF Act, we also do not find it apparent that the legislature intended to create such a"Catch-22." Moreover, with regard to the contention that the 1988 agreement was invalidated by its own internalreference to a privately owned building, the final 1994 agreements eventually provided for a facility that was publiclyowned. Accordingly, because the plaintiff has provided only minimal affirmative evidence that the 1988agreement/promise of TIF was invalid or that the statute specifically forbids any investment in a potential RPA, weaffirm the trial court's finding that the Village properly considered the developer's reliance on the promise in makingits "but-for" determination as not being against the manifest weight of the evidence.

Secondly, with respect to plaintiff's contention that the trial court implemented defendant's improperinterpretation of the "but-for" test, we believe that it would be impossible to determine whether a possible RPA hasthe potential to be developed by private investors without looking at the condition of the land itself. Plaintiff'ssuggestion that a determination that an area is "blighted," by itself, will not satisfy the requirements of the "but-for"test is well taken. However, section 11-74.4-3(n) of the TIF Act specifically states that a municipality mustdetermine whether a redevelopment plan would reasonably be anticipated to "reduce or eliminate those conditions theexistence of which qualified the [site] as a blighted area." This includes both an assessment of the possible RPAitself as well as other economic factors surrounding and impacting the site.

In the present case, the undisputed facts show that the Village of Robbins was, and currently is, aneconomically depressed community that was without any growth and development for many years. Between 1980and 1990, the Village's population decreased by over 15%, and its level of home ownership by 6%. The Village'spercapita income of $8,117 in the 1990 census put it in the five poorest communities in the Chicago Metropolitan area. Additionally, the Village's inadequate infrastructure, such as an antiquated water system and unreliable police andfire protection, resulted in a poor insurance rating that had been unattractive to businesses. Indeed, plaintiff wasunable to produce evidence of any potential investors other than RRRP/FW that intended to invest in the growth anddevelopment of the Cal Sag site.

However, as defendant argues, even if the evidence of the blighted condition of the site and the Village isignored, the evidence still shows that RRRP/FW -the only potential developer- still needed TIF to finance theincinerator project. For without TIF, or at least the promise of TIF, no investors whatsoever were interested indeveloping the Cal Sag site. As previously stated, because the lowest projections of future incremental propertytaxes for the improved property totaled $60 million over the 20-year period of the TIF, RRRP/FW's projected netprofits would have increase by approximately 20%, increasing its after-tax rate of return from 12% to 15%. Becausetestimonial evidence at trial suggested that 12% was significantly lower than any previous FW project, and 15% wasas low as management was willing to go, TIF was the deciding factor in the proceeding. Mindful of the evidence inthe Smith-Barney appraisal suggesting that these projections might still not be met(3), even with TIF, we agree with thetrial court that defendant has satisfied the "but-for" test.

In addition to the evidence concerning projected returns, however, defendant also points to undisputedevidence that neither FW nor RRRP intended to self-finance the $400 million required for the development and theconstruction of the facility and, therefore, that third party financing had to be obtained. To get that financing, thebuyers had to be convinced that the bonds would be repaid, i.e., that revenues from the project would exceed theprincipal and interest on the bonds. Without TIF, the unknown property tax risk associated with the facility wouldhave, in all likelihood, threatened the sale of the bonds since there would have been a large and indeterminateexpense item.

This leads back to the plaintiff's last contention on this issue; that because the Village was to receive certainbenefit payments, like rent, from RRRP/FW over the life of the project, these payments set off the developer's needfor TIF. However, we find that Mr. McCann's testimony for the plaintiff regarding the correlation between the rentand the tax increment is not supported by any evidence. The undisputed testimony at trial revealed that no one wascertain what the property taxes would be. Consequently, there were no grounds to conclude that the rent wassomehow tied to the tax assessments. Moreover, as the trial court points out, the actual rent payments being receivedby the Village are considerably less than the $66 million posed by the plaintiff since roughly two-thirds of thosepayments were contingent upon the profitability of the plant.

In addition, the J.P. Morgan study established that the payments to the Village under the "Facility Site Leaseand Host Benefits Agreement" were "fair and reasonable." Again, as the trial court noted, the study was based on areview of payments by developers of host benefits to governmental units in 26 separate instances, and has nothing todo with the adoption of TIF. And because such lease payments are expressly allowed under section 11-74.4-4(g) ofthe Act, plaintiff's argument fails.

Without more evidence by the plaintiff, therefore, we hold that the trial court's decision that "the Villageproperly considered that both Reading and RRRP/FW had relied upon the Village's written promise of TIF support inpursuing the project and undertaking predevelopment activities" was not against the manifest weight of the evidence,as none of plaintiff's contentions is even borne out by the evidence in the record.

In count VII, plaintiff contended at trial that under section 11-74.4-7.1 of the TIF Act (65 ILCS 5/11-74.4-7.1(West 1994)) it is entitled to a portion of 25% of the cost of the incinerator because it is a municipal public buildingthat provides governmental services. That section states:

"After the effective date of this amendatory Act of 1994 a municipality with a populationof less than 1,000,000, prior to construction of a new municipal public building that providesgovernmental services to be financed with tax increment revenues as authorized in paragraph (4) ofsubsection (q) of Section 11-74.4-3, shall agree with the affected taxing districts to pay them, to theextent tax increment finance revenues are available, over the life of the redevelopment project area,an amount equal to 25% of the cost of the building, such payments to be paid to the taxing districtsin the same proportion as the most recent distribution by the county collector to the affected taxingdistricts of real property taxes from taxable real property in the redevelopment project area.

This Section does not apply to a municipality that, before March 14, 1994 (the effectivedate of Public Act 88-537), acquired or leased the land (i) upon which a new municipal publicbuilding is to be constructed and (ii) for which an existing redevelopment plan or a redevelopmentagreement includes provisions for the construction of a new municipal public building." 65 ILCS5/11-74.4-7.1 (West 1994).

During the hearings on the motions for summary judgment, the court found that facility was a municipal and publicbuilding. As such, the issue at trial was framed as whether the services were governmental.(4)

For this contention, plaintiff cites to extensive case law intimating that the collection and disposal of garbageis a governmental service that has been traditionally performed by governmental agencies. "The gathering of garbageis not a trade, business, or occupation, but it is a public duty, to be performed by a city in a manner that will bestpromote the health of the inhabitants." 7 McQuillin on Municipal Corporations