Response from Build Smart inquiry

[player]

In my quest to understand what is real and what is speculation I decided to investigate one of the many statements in the NSFOC filing, and one that I have seen often in these boards. The statements in question are in

nsfoc.org/pdf/NSFOC_2nd_Amended_Complaint.pdf

Specifically,
"62. (f) The Eola/Molitor property would be disqualified from consideration under guidelines established by the State of Illinois Capital Development Board"

and

"70. ....
For example, and in addition to the guidelines of the Capital Development Board previously identified, 71 Ill. Adm. Code 40.130 prohibhits Defendants from obtaining school construction grants for the site. ..."

My approach was simple - to check with the State of Illinois CDB if this was indeed the case. So I wrote to Karen Shoup, Administrator School Construction, Capital Development Board by email. The letter I wrote is below, and represents the best knowledge I have of the issues at hand.

----------------------------------------------------------------------------------

"Dear Ms. Shoup,

I am writing this as a parent in School District 204 covering parts of
Naperville, IL and Aurora, IL where a third high school has been
proposed, land acquired and construction is expected to start on May 13
2008, and slated for completion in time for the 2009 school year. The
funding for this school is exclusively from local tax monies, and does
not require any State funding at this point.

Recently, several citizens have raised the concern that the site may
disqualify the District from receiving State funds construction funds
due to perceived non-conformance with Build Smart guidelines. I say
"perceived" as this is controversial in the community.

Specifically, the concerns that some citizens have are:

A) The site has several natural gas transmission pipelines at a closest
distance of 220 ft from it. The widest is a 36" pipeline running at a
pressure of roughly 800psi, operated by Kinder Morgan. Kinder Morgan has
made an official statement on this, and I am enclosing this for your
reference.
<<news_18004_2.pdf>>
B) There are high tension voltage lines and a substation visible from
the school site. EMF testing measurements revealed fields in the 2-11 mG
range, with the field in proposed populated areas within commonly
understood safety guidelines.

C) A parcel of land adjoining the site was operates as a peaker plant
and Phase II testing revealed some contaminants, mainly due to prior
diesel spills on the site. The parts adjoining the peaker plant site
from proposed site has undergone Phase I testing with no concerns of
contaminants.

D) There is a train line in the proximity of the site visible from the
site.

These are somewhat at variance with the "Site Selection" criteria set
forth in the Build Smart documentation (Chapter 3 on "Site Selection"),
and there are concerns that this would disqualify us from any future
site funding from the State, should that be required.

While I have studied the Build Smart guidelines, what is not clear to me
is how this is connected to statute for School construction grants. The
section below is from the statute I found addressing this, and while it
appears to lay some guidelines for site selection to qualify for State
School Grants, it is not clear to me if there is any connection with
Build Smart guidelines. See
Below:

PART 40 STANDARDS FOR AWARD OF GRANTS: SCHOOL CONSTRUCTION PROGRAM
SECTION 40.130 CONSTRUCTION GRANTS ....
c) School Site Selection
1) The local school district shall select the sites for all new
projects.
2) Suitability for Development and Construction
A) The site should be free of physical structures, topographical
features or subsurface physical conditions that would preclude necessary
construction, present insurmountable obstacles to safety or normal
utilization, shorten building life, cause excessive delays in project
completion, or cause costs to exceed the funds available. "Necessary
construction" shall include but not necessarily be limited to:
buildings, utility lines, storm water disposal arrangements and paving.
B) The site should not be subject to existing or foreseeable, harmful or
disruptive environmental hazards and nuisances. Such hazards and
nuisances may include, but are not necessarily limited to: excessive
dust, smoke, noise, odors, air pollutants, soil pollutants, floods,
ground water incursions, vibrations, explosions, and electrical
discharges. Site acquisition shall be subject to the Farmland
Preservation Act [505 ILCS 75], Interagency Wetland Policy Act of 1989
[20 ILCS 830], Illinois State Agency Historic Resources Preservation Act
[20 ILCS 3410], Archaeological and Paleontological Resources Protection
Act [20 ILCS 3435], the Illinois Endangered Species Protection Act [520
ILCS 10], and the Environmental Protection Act [415 ILCS 58.15], as may
be applicable.

This statute does not reference Build Smart. Given the site
environmentals, I would really appreciate guidance on:

1. Are Build Smart guidelines binding to obtain State funding for School
Construction in the future?
2. If not, is the statute to be interpreted as disqualifying the school
for future State funding based on the information I have presented?
3. Is this insufficient information to make a determination? If so, what
is the process and information needed to be able to make such a
determination?

Any guidance will be deeply appreciated! If it is more convenient to
chat about this over the phone, I would be more than happy to if you
could indicate a time that works for you.

Sincerely,"

-----------------------------------------------------------------------------------

The verbatim response from the CDB to my letter:

-----------------------------------------------------------------------------------
"Build Smart is a guide for school districts and not binding

The school construction grant program does not currently have funding
for grants, funding is included in the introduced budget, but funding
has not been available since 2003

The State of Illinois has worked cooperatively with school districts on
many challenging sites, includeing the development of brownfield sites
in land locked communities where industries have left communities. All
statutory requirements are met. "

-----------------------------------------------------------------------------------

I deliberately left the third question open, so all the CDB had to say was "insufficient information to make a determination" and not commit - but thats not what I got back.

My interpretation of this response is:

a) Build Smart is not binding for School construction funding
b) There are no statutory reasons why there would be a problem with funding.
c) There hasn't been any funding available since 2003.

This means that the statements in 62(f) and 70 are incorrect.

My interest is to try to determine what the legal consequences of the actions in front of the court are. I am a firm believer that the District has bright, concerned parents, and with the proper information they can make appropriate decisions. While there is plenty of emotion and rhetoric on both sides, I am deliberately taking a fact based posture in this matter, as I genuinely sympathize with the predicament of many of the sides in this mess.

But, when I see a lawsuit, I expect that every accusation is well researched and verified. It amazes me that when I do a spot check and find that this is not so. I respect everyones right to file a law suit to address their grievances, but I believe that insufficient homework was done for the NSFOC lawsuit. The opponents can rip this and cast doubt on other possibly valid statements.

Now I have to check every single claim in the lawsuit before I am convinced that any of the statements will hold up.


Cheers.

[specailneedsmom]

What does all statutory requirements are met refer to?

[player]

May 1, 2008 19:44:34 GMT -6 @specailneedsmom said:

What does all statutory requirements are met refer to?

Response to Question 2 -

"2. If not, is the statute to be interpreted as disqualifying the school
for future State funding based on the information I have presented?"

[specailneedsmom]

Thanks for the clarification.

[Arch]

Any 'guideline' can be scooted around legally.

For example:

There isn't a statutory reason why you should not repeatedly stick a fork into your circuit breaker box when the panel cover is removed, but it's still not a great idea to do so.

[snerdley]

Player, the judge wil rule based on the law.

I'll be glad when we reach that point. All the posturing prior to then is irrelevant.

[player]

May 1, 2008 19:56:17 GMT -6 Arch said:

Any 'guideline' can be scooted around legally.

For example:

There isn't a statutory reason why you should not repeatedly stick a fork into your circuit breaker box when the panel cover is removed, but it's still not a great idea to do so.

Arch: True. Which is why this is relavant to the litigation, and I claim nothing as far as good sense goes! ;D

Factual mistakes will not help the lawsuit, especially as the going mantra is "Only what Popejoy thinks matters". The lawsuit loses credibility with such errors.

Cheers.

[momind204]

Player, what is a "brownfield site"?

[d204mom]

May 1, 2008 19:33:37 GMT -6 player said:

The verbatim response from the CDB to my letter:

-----------------------------------------------------------------------------------
"Build Smart is a guide for school districts and not binding

The school construction grant program does not currently have funding
for grants, funding is included in the introduced budget, but funding
has not been available since 2003

The State of Illinois has worked cooperatively with school districts on
many challenging sites, includeing the development of brownfield sites
in land locked communities where industries have left communities. All
statutory requirements are met. "

OK based on what you posted I have a completely different interpretation, but would have to read the entire response.

I think we all knew that the Build Smart guidelines are not enforceable by the state. Yes, they are guidelines developed by the state to ensure that schools don't build on bad sites.

Since there is no money in IL for construction grants right now, there is not a monetary incentive. However, if funding would become available, there would be a monetary incentive. But there remains a health, safety and operating cost concern that should encourage districts to follow the guidelines.

Why aren't we? It doesn't make any sense unless the health and safety of the students is NOT the #1 concern.

And something else - that's fine if other people want to send their kids to schools on former brownfield sites but FOR CRYING OUT LOUD we are spending $150 M AND THERE IS OTHER LAND available!! It is BEYOND ME why the board and Daeschner are taking unnecessary risks with my kids when THERE ARE OTHER OPTIONS AVAILABLE.

eta - I just noticed that the response says that funding is included in the budget. So we are walking away from available funding? Unbelievable.

[player]

May 1, 2008 20:01:13 GMT -6 snerdley said:

Player, the judge wil rule based on the law.

I'll be glad when we reach that point. All the posturing prior to then is irrelevant.

snerdley: Agreed. The Build Smart posturing has been going on for months. Its just not true. I too will be glad when this gets decided where it should, in court, based on law.

Cheers.

[Arch]

May 1, 2008 20:08:22 GMT -6 player said:

May 1, 2008 20:01:13 GMT -6 snerdley said:

Player, the judge wil rule based on the law.

I'll be glad when we reach that point. All the posturing prior to then is irrelevant.

snerdley: Agreed. The Build Smart posturing has been going on for months. Its just not true. I too will be glad when this gets decided where it should, in court, based on law.

Cheers.

I'll grant you this, the 'posturing' that was done around it, quite frankly, sucked because it talked with absolutes.

It would have been better if they merely worded it as something like:

"The State of Illinois has as part of its funding criteria, certain guidelines that they strongly urge school systems to follow to help ensure a safe site for children to attend school. The Eola property goes directly against several of those site selection guidelines such as....."

[player]

May 1, 2008 20:07:56 GMT -6 d204mom said:

May 1, 2008 19:33:37 GMT -6 player said:

The verbatim response from the CDB to my letter:

-----------------------------------------------------------------------------------
"Build Smart is a guide for school districts and not binding

The school construction grant program does not currently have funding
for grants, funding is included in the introduced budget, but funding
has not been available since 2003

The State of Illinois has worked cooperatively with school districts on
many challenging sites, includeing the development of brownfield sites
in land locked communities where industries have left communities. All
statutory requirements are met. "

OK based on what you posted I have a completely different interpretation, but would have to read the entire response.

I think we all knew that the Build Smart guidelines are not enforceable by the state. Yes, they are guidelines developed by the state to ensure that schools don't build on bad sites.

Since there is no money in IL for construction grants right now, there is not a monetary incentive. However, if funding would become available, there would be a monetary incentive. But there remains a health, safety and operating cost concern that should encourage districts to follow the guidelines.

Why aren't we? It doesn't make any sense unless the health and safety of the students is NOT the #1 concern.

And something else - that's fine if other people want to send their kids to schools on former brownfield sites but FOR CRYING OUT LOUD we are spending $150 M AND THERE IS OTHER LAND available!! It is BEYOND ME why the board and Daeschner are taking unnecessary risks with my kids when THERE ARE OTHER OPTIONS AVAILABLE.

d204mom: As Arch mentioned as well, that which is legal may not be right. My only point is: if someone has decided to fight, make sure the weapons work. I personally sympathize with many opposing opinions on these boards, including yours. But the facts should be as non-controversial as possible. That is not the case for Build Smart.

Cheers.

[doctorwho]

May 1, 2008 20:12:30 GMT -6 Arch said:

May 1, 2008 20:08:22 GMT -6 player said:

snerdley: Agreed. The Build Smart posturing has been going on for months. Its just not true. I too will be glad when this gets decided where it should, in court, based on law.

Cheers.

I'll grant you this, the 'posturing' that was done around it, quite frankly, sucked because it talked with absolutes.

It would have been better if they merely worded it as something like:

"The State of Illinois has as part of its funding criteria, certain guidelines that they strongly urge school systems to follow to help ensure a safe site for children to attend school. The Eola property goes directly against several of those site selection guidelines such as....."

Agree that it should be viewed as a common sense document -- even though there are some items tied to it, it was written to provide guideance to those looking to build schools in case they had brain cramps. Common snese says why would one go against these items - and really, why would you go againsat mulitple items here.

[momind204]

May 1, 2008 20:07:56 GMT -6 d204mom said:

eta - I just noticed that the response says that funding is included in the budget. So we are walking away from available funding? Unbelievable.

It is included in the proposed budget - doesn't mean it will be included in the approved budget. Given the financial status of the State of Illinois, I highly doubt that funding will be approved for a program that hasn't been funded in 4 to 5 years.

[player]

May 1, 2008 20:12:30 GMT -6 Arch said:

May 1, 2008 20:08:22 GMT -6 player said:

snerdley: Agreed. The Build Smart posturing has been going on for months. Its just not true. I too will be glad when this gets decided where it should, in court, based on law.

Cheers.

I'll grant you this, the 'posturing' that was done around it, quite frankly, sucked because it talked with absolutes.

It would have been better if they merely worded it as something like:

"The State of Illinois has as part of its funding criteria, certain guidelines that they strongly urge school systems to follow to help ensure a safe site for children to attend school. The Eola property goes directly against several of those site selection guidelines such as....."

Arch: Yeah! That would be completely true and non-controversial!
Instead, an extreme possible consequence of this guideline is presented without verification!