enough speaking council thank you very much for being available this morning to proceed with your oral argument remote like this is something new for all of us before we begin our word or two about our format this morning just as if you were in the courthouse in elgin you will each have up to fifteen minutes for your arguments the appellate will also have up to five minutes for about all you've heard m kaplan let you know that there will be a bus there indicating when your time is up i also will let you know you certainly don't have to use all of the time allotted i would like to remind you as is the practice of the nd appellate district we have all read your brief ahead of time what will be different this morning is that we will not interrupt your argument with our questions as we usually do we felt that since this is being done remotely it would be too difficult to proceed in that manner so we will save our questions for each of you until you have completed your arguments that is after the appellant completes argument then we will ask her questions and when the police finishes his argument we will ask him the question i would like to remind you that no one except the clerk is permitted to record this proceeding today and this deal you indicated your associate is also on the line but is mute it is that correct yes that is correct all right and what is her name or his name and her name is holly campbell ok thank you do either of you counsel have any questions before we officially begin the why is the proof of the objection and a petition is not insufficient for failing to allege the why but even here we did allege the why we've alleged that the resolution applied to a gun or g s evil ledge how we're entitled to it and how it runs the land we've full year of operation of the power generation facility just even admitted actually in its brief on page twenty two dollars that the legislative intent which for the ten year period to begin when the texan body orders the clerk to abate and that's what never happened here remotely and we can't see you either obviously we don't have video so i think if you slow down just a little bit it be easier to follow your argument so if you'd be kind enough to do that thank you sure yet instead it's a number you have to have a comparable number which we are given done after the property was completed which is evident by our tax bills that were paid and attached to the complaint which show also of substantial increase  when the resolution to be passed by the district and when the basement begins so of those qualify under the code for an abatement overarching that i want to point out the resolution itself found that the project qualified for debate so that's what we did in the body of the resolution  ability to run the land and i think the fact ok but how would you balance that against the presumption in favor of taxation that if the resolution is not specific and granting it runs with the land does the presumption in favor of taxation and i think that in this case there's no language in the two thousand resolution saying that the abram of the land or that intended or on the land is there and doesn't have to there is no language in there that it wrong with the land but i would think that it doesn't have to have language in very land and it had does have language in there that was said that it's focused more on the subject property and the improvement there and then any particular business or party or develop r if the point of the statute is to develop and to bring in additional tax and to you know ease the tax burden otherwise then i don't know if it should be an issue if for the development of the land whether that date but that's improper understanding of the statute i mean obviously the the appointment here to she was only five years wasn't you know beyond the ten years of a maximum is only for five years but the abatement never started ticking whenever the district in the business determined hearing that clock started ticking at the resolution is after the st full year of operations there wasn't any restriction built in as to when the construction had to be completed and when the abatement of if i don't hear that your or your argument is that the trial court found that the resolution or that that it began to run prior to the property even being completed as opposed to the st full year of the operation that was the trial court ruling was such that we were sixteen years ok i don't have any questions other questions at this time this is just the sing off i do do you have any or have you found any legal precedent in brixton a tax objection complaint was used to challenge an a batement decision an earlier rules that protect the basement and in that case they found that the center like we had hearing which is expressed in the resolution here that an expansion of the stability and building a new facility in a county qualifies under the code   how can this corner a trial court take judicial notice of the two thousand and seven resolution as it is not generally a generally known fact not capable of  s now we've obviously documented clearly not part of the record here and we've noted but the court you know the court could be inclined to take judicial notice of it if they could determine that this was even if the court were to take judicial notice of it district actually already agreed that it's a policy that when created was going forward resolution and the actual document itself that they attached to their response silent as to anything concerning the two thousand resolution or any other resolution that predates that policy there's nothing in the policy or the district are provided any  and steve richard for the board of education of rock falls township high school real on this case in the high school approach is about a company that tried to purchase in a big but out ever confirming with the school board that it was available for purchase it is about a company that delayed claiming the abatement for sixteen years and it is about a school board that reasonably declined an abatement were no written agreement was in place fifteen years had passed no application was made under the board's then current policy and the abatement was being claimed by a stranger to the board the original resolution your honour's the trial court in this case correctly dismissed the plaintiff complain because the complaint did not state illegally cognize will cause of action the complaint did not plead facts stating entailment to an abatement the plaintiff needs a valid theory of recovery here but has none and rather has pled itself out of court let's review briefly the plainest relevant allegations concerning entitle me to an abatement the complaint alleges that a separate company and previous owner of the property l s p nelson applied to the school board for the abatement in two thousand independent reasons and if any one of these grounds a successful it requires a firm and moreover the plaintiff has chosen not to amended complaint and has stood on a defective completes the granting leave to amend would not be proper at this point are four major arguments as set forth in our brief are that the complaint st demonstrates that there were unfulfilled condition in the two thousand resolution and the property tax code in regards to this claimed abatement nd that the two thousand  occurred more than ten years ago when the property tax code limits abatements to a ten year period rd inventor g e as an outside party and a stranger to the two thousand resolution in forth the allegations simply do not show that the board used its discretion or that the courts should interfere in this matter but showed just the opposite turning st to argument one and the unfulfilled conditions in the property tax code and the two thousand resolution let me be clear that the two thousand resolution is not an order to evade taxes the two thousand resolution merely was a statement of the school board's intent to order abatement of taxes for l s p nelson upon fulfillment of certain conditions section eighteen dash one hundred and sixty five of the property tax code unambiguous lee requires in order to abate in reply the plant is now admits that the two thousand resolution is not in order to  interest or entitlement under the resolutions terms plate of treats the two thousand resolution is some sort of option to abate but there's no support in the property tax code that such a thing exists further face is not self executing and requires further district orders to the county clerk which are not alleged to have been requested by inverting the plan is complete brushes aside the conditions in the two thousand resolution and turns  relief here is based exclusively on a one sided statement signed by one party and not the other a one party resolution that was not a promise but a statement of intent to abate as a resolution that ha no force of law like a policy and by its timing it couldn't be in order to abate under section eighteen thousand one hundred and sixty five dollars there's an order of operation st the preconditions in the development must occur by the owner in terms of locating within the taxing district or expanding the existing facility then the taxing body determines its assessed value and then and only then the taxing body votes and orders the court to abate that is not what happened in this case but instead the board adopted a statement of intent to abate to induce the development and because a one party resolution like this is not enforceable in advance the development developers frequently do ask for a written agreement that is not allege have taken place in this case and abatement agreement would be a two party understanding that the board would upon certain conditions order abatement the complaint does not allege an abatement agreement in this case so the two thousand resolution is neither an abatement no an order of abatement it is instead a statement of intent and it is not enforceable now our ten year argument or their property tax code really is just assuming our un though that the two otherwise abatement could tie the hands of future boards in gresini versus the page township the court stated that is contrary to the effective administration of political subdivision to allow elected officials the tie the hands of their successor years of taxes there's no support in the statute for a board being bound by a resolution adopted sixteen years earlier concerning abatement and i want to arse another rd separate independent reviews and why the completely dishonest and that is that inventor g e is an outside party and a stranger to the two thousand revolution such meeting on sixty five allows abatement for property of a commercial industrial firm and this language imposes an ownership addition to use requirement section eighteen thousand one hundred and sixty five does not allow abatement of any commercial or industrial property rather it is property of a commercial or industrial firm and it is a firm that meets  certain conditions such as expanding as a society or locating within the district during the immediately preceding calendar year now a new owner would require a different determination by attacks in district whether they are expanding a facility or locating within the ask for these appropriate findings so the fact that the abatement was offered to alice b nelson and not in liturgy is a separate an independent reason for dismissal of the complaint i'd like to speak to the plaintiff's running with  theory for a moment and that theory appears to be based on the two thousand resolution itself there are no further allegations in the complaint that go to this issue and the two thousand resolution that the justice noted  during the play this oral argument is that it doesn't state it doesn't state at all that it runs with the land and in fact our position is an agreement can't run with the land under section eighteen as one hundred and sixty five dollars where that section requires fulfilment of conditions by the owner however even if it could the complete state's no facts concerning the running with the land theory outside of the resolution itself and the construction of the resolution is a matter of law for this court to decide again the resolution didn't say it runs with the land and it's not even filed for record like the deed that is attached to the complaint to give notice to property owners or title company and set it's just filed with the county clerk but when his theory is essentially that it runs with the land because it describes the property and it's filed with the county cricket but that is clearly insufficient and that would apply in fact to any abatement no cases have ever held that in the basement could run with the land and the only only case the plaintiff relies on bank of america versus cannonballs he did not involve an abatement but revolved a written agreement again an agreement which we don't even have in this case where parties specifically contract that a tax obligation of a private party would run with the land in veggie claims this is a factual issue but it is not there are no factual allegations in the complaint concerning this theory outside of the resolution and the players could  such as delegations as the trial court offered leave to amend but instead the plaintiff chose to stand on the complaint bottom line is that a new order or owner isn't automatically entitled to update mn and this is a separate reason to dismiss are legislative decisions and the courts are reluctant to interfere the cases of noted that texas can be retroactively changed and energies really from simply be through the political process even if the court wished to pass on whether the school board's  arbitrary the allegations show the board's action was within its sound judgement the allegations are that in two thousand the board resolved to grant an abatement to a previous owner there's no facts stating that the district induced in the nergy to rely on that resolution at all the reliance was not induced by the district and nor was it reasonable under the certain circumstances this case thus this is a th dispositive reason to dismiss the complaint really has to establish just sixteen and now it does is just to simply say it runs with the land and then the proof would come out later how do you respond to that we respond that th the the only allegation in the complaint concerning the intent of the parties is the resolution itself and the sec that it's that the turns around the the subject property to the construction of the resolution is a matter of law and it isn't our position is that an abatement can turn with the land and there's a big difference between an obligation of a private party running with the land versus an obligation allegedly of a public body running with the land and backing up we don't even do the resolution of those as effectively providing a convenient interest and that of course that the property runs of the land and i asked her what how we infer or read any intent into that in her in her statement basically i  think i'm repeating this correctly is that this was this is what you do in order to entice big companies to come in how is how is this company  any different than the bankrupt company with respect to enticing it's exactly the same type of business so how is it any different what they offered them for what they're offering here isn't  years but isn't it supposed to be a year after the property is completed i think the ten years but the decision whether to order abatement after the property is completed  our have the status of law and there's case law that was cited on that and yes so as a result of that the court can take judicial notice of the school board policy but it need not because the relevant information concerning the school board policy is attached to the complaint that's all located within the two thousand and seventeen resolution how did the board get the board in that resolution or whatever include have the school board could that language have been in the two thousand and seven policies or school board i suppose that that is possible but the two thousand action itself was not an abatement order it didn't of abatement then it must also trigger the ten year window under eighteen thousand one hundred and sixty five dollars and that's our position as it turns out the parties as i understand it don't particularly differ on this issue  after the two thousand resolution with where did they reasonable ness in that a future board for an unreasonable period and here you would have an unreal reasonable period of decision that impact the welfare of the subdivision argument you indicated that the point if the point is reliance on the two thousand resolution in purchasing that property wasn't set out in the complaint how is this not alleged resurrection was still there or attempting to confirm it or in any in any such sense i would argue that's one big problem with the reliance or even the nd big problem is that it simply w reasonable to rely on a one party resolution and again this is why developers frequently get agreement to abate two party agreements that spell out the opposition to the parties now you separate tax objection to be raised in the following year and then another tax objection to be filed the following year and so forth and so on but i don't really get the argument that that was that that was not available or that that was somehow not adequate that those are all the questions i have this time thank you sir this is just to say not i do not have any judgment you have to know that you have an interest they have an opposing interest and there's a dispute over those interests they are adding additional things that they claim must be alleged to state a claim here that the simply improper and beyond beyond what is required  orders were based on an erroneous understanding in application of the statute that you could if he's already decided health care she's going to work in his mind it's not going to be a clean issue at that point i think with the reasonableness of the already found inserted a rea that's not what the argument below the whole process is you find you have you the resolution starts you can't comply with the resolutions and you the properties a test and then the district orders it to be a clearly complied with that they could have prevented that if they had a contract there's no requirement in the resolution or the textbooks that we have to win this resolution to abate this enticement we can we relied on the part of the relied on the new the passing of this condition to actually abate further it's kind of flies in the face of being tired purpose of the resolution of the st place if you're going to put a resolution out there saying if you build this on this property we will take your taxes and then you do that and they say oh never mind we didn't mean it questions either so at this time we would like to very much thank counsel for your arguments this morning for your participation in this remote oral argument the court will take the matter under advisement and render a decision a course and the court stands adjourned for the day thank you again counsel we appreciate all the efforts that you have made you my hang up now thank you thank