                                    2018 IL App (1st) 170340 


                                          No. 1-17-0340


                                   Opinion filed May 23, 2018 


                                                                             Third Division


                                             IN THE


                              APPELLATE COURT OF ILLINOIS


                                        FIRST DISTRICT



OPENLANDS, an Illinois Not-for-Profit       )                Appeal from the
Corporation, and SIERRA CLUB, a California  )                Circuit Court of
Not-for-Profit Corporation,                 )                Cook County.
                                            )
         Plaintiffs-Appellants,             )
                                            )
                        v.                  )
                                            )
THE DEPARTMENT OF TRANSPORTATION, )
an Illinois State Agency; ANN L. SCHNEIDER, )                No. 14 CH 6630
Her Official Capacity as Secretary of       )
Transportation; THE BOARD OF THE CHICAGO )
METROPOLITAN AGENCY FOR PLANNING, )
an Illinois Municipal Corporation; and      )
THE METROPOLITAN PLANNING                   )
ORGANIZATION POLICY COMMITTEE, an           )
Illinois Public Agency,                     )                The Honorable
                                            )                David B. Atkins,
         Defendants-Appellees.              )                Judge Presiding.
                                            )


       JUSTICE LAVIN delivered the judgment of the court, with opinion.
       Justices Fitzgerald Smith and Howse concurred in the judgment and opinion.

                                            OPINION

¶1     Plaintiffs-appellants Openlands, an Illinois not-for-profit, and the Sierra Club, a

California not-for-profit, appeal from the trial court’s order granting summary judgment to the
No. 1-17-0340


Illinois Department of Transportation (Transportation Department), the Chicago Metropolitan

Agency for Planning (Chicago Metro Planning Agency), and the Metropolitan Planning

Organization Policy Committee (MPO Policy Committee). In granting defendants’ motion, the

court thereby denied plaintiffs’ dueling summary judgment motion and sanctioned further

progress on the Illiana Tollway project, a proposed 47-mile, billion-dollar tollway, running from

Interstate 55 in Illinois to Interstate 65 in Indiana. Plaintiffs have objected on the basis of their

taxpayer status and argument that the tollway expenditures violate Illinois law. Their reason for

the challenge, however, is that the tollway development and accompanying traffic would

allegedly jeopardize the Midewin National Tallgrass Prairie, which runs near the southern

boundary of the proposed tollway project. Plaintiffs ask that we reverse the trial court’s judgment

and grant their motion instead. For the reasons to follow, we affirm.

¶2                                      BACKGROUND

¶3      The Chicago Metro Planning Agency and its governing board (Chicago Metro Planning

Agency Board or Board) is a special district “unit of government,” which was created by the

Regional Planning Act (70 ILCS 1707/1 et seq. (West 2014)) to address transportation

challenges in northeastern Illinois. The other key player in this case is the MPO Policy

Committee, a federally designated organization under the Federal-Aid Highway Act (23 U.S.C.

§ 101 et seq. (2012)) that also addresses local transportation matters. Metropolitan planning

organizations (MPOs) exist in urban areas with a population of over 50,000 people and are

formed generally by agreement with the governor and units of local government, or otherwise by

state or local law. Id. § 134(d).

¶4      Pursuant to the aforementioned transportation statutes, in March 2007, the Chicago Metro

Planning Agency and the MPO Policy Committee entered into a memorandum of understanding



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No. 1-17-0340


identifying the “working relationship between the two boards” with respect to the northeastern

transportation system, acknowledging that both state and federal law controlled. The agreement

covered the geographic “metropolitan planning area as defined by the Regional Planning Act”

and by federal regulations and thus included northeastern counties, plus additional counties

under the MPO Policy Committee’s authority. See id. § 134(b)(1), (e); 23 C.F.R. § 450.104

(2014) (defining “metropolitan planning area” as that defined by the MPO and governor to

identify where the metropolitan transportation planning is carried out); 23 C.F.R. § 450.312(a)

(2014) (the metropolitan planning area encompasses the entire urbanized area plus any

contiguous area expected to become urbanized within a 20-year period and the metropolitan

planning area may be further expanded to encompass a statistical area defined by the federal

budget office). 1

¶5      Consistent with the statutes, the parties agreed that the Chicago Metro Planning Agency

Board would develop “an integrated comprehensive regional plan” and the MPO Policy

Committee would develop “long-range transportation plans and transportation improvement” for

the Chicago metro area. Indeed, federal statutes provide that an MPO must adopt both long-range

“metropolitan transportation plans,” with a planning horizon of 20 years, known as MTPs, and

short-range “transportation improvement programs,” known as TIPs, which are updated every

four years, in metropolitan areas. See 23 U.S.C. § 134(c)(1) (2012); 23 C.F.R. §§ 450.322(a),

450.324(a) (2014). For federal funding, the transportation project must be included in both the

long- and short-range planning for the region. See 23 U.S.C. § 134(c) (2012).




        1
         While a 1981 document signed by the Illinois governor designated the MPO’s geographic
metropolitan planning area to be “the urbanized areas of Chicago, Aurora-Elgin, and Joliet,” we presume
the metropolitan planning area identified in the 2007 memorandum of understanding eclipsed this
document.
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No. 1-17-0340


¶6      The memorandum of understanding between the parties stated that “federal regulations

require the MPO to approve various plans, programs and related documents” but that the

Chicago Metro Planning Agency Board would be the body to develop those plans, programs, and

documents. The Chicago Metro Planning Agency Board was to receive input and

recommendations from various groups/committees, and the Board “will then forward its

recommendation with comments to the [MPO] Policy Committee, which will act upon that

recommendation. The [MPO] Policy Committee will take final action as required by federal

law.” A footnote in the memorandum of understanding document states it was subsequently

reaffirmed in 2009, 2010, 2012, 2013, and 2015. Finally, the footnote says it was revised and

affirmed in March 2015 as well (although it is unclear as to what was revised). 2

¶7      Here, in 2010, the MPO Policy Committee adopted a long-range metropolitan

transportation plan, which apparently also encompassed a short-range forecast, called the “GO

TO 2040” plan, which the Chicago Metro Planning Agency Board likewise determined would

serve as its comprehensive regional plan. According to a federal report, the “GO TO 2040” was

Chicago’s first comprehensive regional plan in more than 100 years, addressing an array of

issues like transportation, housing, economic development, open space, the environment, and

quality-of-life matters in the region’s 284 communities.

¶8      Several years later, in 2013 and 2014, the Transportation Department sought to amend

the “GO TO 2040” plan to include the Illiana Tollway project. See 23 C.F.R. § 450.104 (2014)

(an “amendment” is a “revision to a long-range statewide or metropolitan transportation plan,

        2
          The 2014 agreement echoed earlier agreements from 1955 and 1968 between the City of
Chicago, Cook County, and the State of Illinois, through the Department of Public Works and Buildings.
In those memorandums of understanding, the parties likewise aimed to study traffic patterns so as to
relieve the Chicago metro area of traffic and congestion problems. The 1955 agreement stated the parties
would take a 50% portion of federal aid via the federal highway program, and in the 1968 agreement, a
75% portion. The MPO in the Chicago region was previously called the Chicago Area Transportation
Study (or CATS).
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No. 1-17-0340


[and] TIP” and includes “the addition *** of a project,” requiring public review and comment).

The Chicago Metro Planning Agency voted against this amendment, while the MPO Policy

Committee voted contrarily to include the Illiana Tollway in the “GO TO 2040” plan and also

voted to approve the short-term plan to include the Illiana Tollway. 3 In addition, the head of the

Transportation Department similarly voted in favor of the amendments, having obligated about

$40 million in state funds towards the Illiana Tollway with a proposed investment of much more

and with the concomitant goal of obtaining federal financial aid. In their briefs, the parties have

not parsed out exactly how the “GO TO 2040” plan or the tollway project would be funded.

Nonetheless, they have stated that the Illiana Tollway is a “fiscally constrained” capital project,

meaning that both the long- and short-term federal plans contain “sufficient financial information

for demonstrating that projects” in the plan “can be implemented using committed, available, or

reasonably available revenue sources.” See id. The parties likewise have not identified exactly

how the tollway project would be constructed, such as who would oversee the building project,

actually build the tollway, or the exact role of the Transportation Department in the project. Nor

have they detailed exactly how the governing boards plan to negotiate transportation matters

with Indiana. In short, the briefs give short shrift on details in this very niche area of law.

¶9      In any event, following the MPO Policy Committee’s vote in favor of the Illiana Tollway,

plaintiffs filed suit, ultimately landing on an amended complaint for declaratory and injunctive

relief to preclude the tollway’s development in an effort to protect the Midewin National

Tallgrass Prairie and other natural resources they claimed would be adversely impacted by the

tollway project. Plaintiffs alleged that the Chicago Metro Planning Agency Board violated


        3
        The Federal Highway Administration, in its 2014 report certifying the Chicago transit region’s
compliance with federal requirements, acknowledged that the parties had reached conflicting decisions on
whether to include the Illiana Tollway project in the “GO TO 2040” plan. In spite of this, the review
found the Chicago metro area to be in compliance with federal requirements.
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No. 1-17-0340


section 60(c) of the Regional Planning Act (70 ILCS 1707/60(c) (West 2014)) by failing to adopt

a regional transportation decision-making process to ensure that all MPO plans, reports, and

programs were approved by the Chicago Metro Planning Agency Board prior to final approval

by the MPO Policy Committee. As a result, the MPO Policy Committee had “no authority to

consider or approve” the Transportation Department’s amendments to the “GO TO 2040” plan to

include the Illiana Tollway as a “fiscally constrained” capital project. Accordingly, they claimed

the MPO Policy Committee’s vote to amend the plan was not authorized under section 60(c) and

hence any development was not authorized. Plaintiffs claimed they would be harmed as

taxpayers due to the illegal use of public funds and their use of natural resources adversely

affected.

¶ 10   The Transportation Department filed an amended answer to the complaint and asserted

affirmative defenses. It contended the metropolitan transportation plan amendment was proper

and valid, while also admitting to continue state fund expenditures in planning for the Illiana

Tollway.

¶ 11   The parties then filed cross-motions for summary judgment. As in their complaint,

plaintiffs claimed the amendments to the “GO TO 2040” plan violated the Regional Planning Act

and were unauthorized, void, and without legal effect. They argued the Transportation

Department was barred from developing the tollway and asked that the trial court declare the

MPO Policy Committee vote void and Transportation Department expenditures unauthorized

with an injunction against further spending.

¶ 12   The Transportation Department filed a motion for summary judgment in response. The

Chicago Metro Planning Agency Board together with the MPO Policy Committee also filed a

separate summary judgment motion. As with its affirmative defense, the Transportation



                                                 6

No. 1-17-0340


Department asserted that plaintiffs’ state law claims were preempted by the Federal-Aid

Highway Act. It contended section 60(c) of the Regional Planning Act could not limit the MPO

Policy Committee’s federally-prescribed procedure of adopting long- and short-range plans for

the Chicago metro area. As such, it argued section 60(c) was unenforceable. The Chicago Metro

Planning Agency Board and the MPO Policy Committee added that the approval power

conferred through section 60(c) was “advisory” and not binding. They argued this interpretation

preserved the constitutionality of the statute and avoided any possible preemption problem.

Citing the 2007 memorandum of understanding, which was reaffirmed in 2015, the Chicago

Metro Planning Agency Board argued it would defer to the MPO Policy Committee’s authority

in relationship to approving the Illiana Tollway project.

¶ 13   In the trial court’s written order addressing the parties’ summary judgment motions, the

trial court first noted that in January 2015, the governor had halted the Illiana Tollway by

executive order but that, according to the Transportation Department, the tollway was still

identified in the long-range plan and the Transportation Department would be prepared to move

forward with the project at any time. Finding the issue was not moot, the trial court proceeded in

its analysis, ultimately siding with the defendants. The court declared the issue before it was

whether section 60(c) of the Regional Planning Act was preempted by federal law. After noting

that the MPO Policy Committee was a creature of federal law, the court found that “Permitting

[the Chicago Metro Planning Agency] to have unfettered power to screen off transportation

projects that receive federal money would necessarily impede on the MPO’s federally

empowered discretion in approving highway projects.” The court concluded the plaintiffs’

interpretation of the Regional Planning Act would conflict with the Federal-Aid Highway Act.




                                                 7

No. 1-17-0340


The court held the Transportation Department’s disbursal of funds for the tollway project would

not be illegal.

¶ 14    Plaintiffs appealed. 4

¶ 15                                   ANALYSIS

¶ 16    Plaintiffs now challenge the trial court’s judgment denying their summary judgment

motion and granting that in favor of defendants. The Transportation Department filed a response

brief, as did the Chicago Metro Planning Agency Board together with the MPO Policy

Committee. Where, as here, parties file cross-motions for summary judgment, they agree that

only a question of law is involved and invite the court to decide the issues based on the record.

Pielet v. Pielet, 2012 IL 112064, ¶ 28. That said, however, the mere filing of cross-motions for

summary judgment does not establish that there is no issue of material fact, nor does it obligate a

court to render summary judgment. Id. Summary judgment should be granted only where the

pleadings, depositions, admissions, and affidavits on file, when viewed in the light most

favorable to the nonmoving party, show that there is no genuine issue as to any material fact and

that the moving party is clearly entitled to judgment as a matter of law. Id. ¶ 29; 735 ILCS 5/2­

1005(c) (West 2014). Where a case is decided through summary judgment, our review is

de novo, and we may affirm the trial court’s decision for any reason in the record. Moline School

District No. 40 Board of Education v. Quinn, 2016 IL 119704, ¶ 15; Parker v. House O’Lite

Corp., 324 Ill. App. 3d 1014, 1020 (2001).



        4
         In June 2015, plaintiffs won a summary judgment motion in federal court declaring that the
Federal Highway Administration’s approval of a tier 1 environmental impact statement for the proposed
Illiana Expressway was arbitrary and capricious and in violation of the National Environmental Policy
Act. See Openlands v. United States Department of Transportation, 124 F. Supp. 3d 796, 810 (N.D. Ill.
2015). The matter was remanded for further administrative proceedings. Id. at 810-11.



                                                  8

No. 1-17-0340


¶ 17   As below, plaintiffs’ primary contention on appeal is that the MPO Policy Committee

lacked the authority to amend the “GO TO 2040” plan to include the Illiana Tollway project. To

address this contention, we first turn to the statutes themselves.

¶ 18   Metropolitan transportation planning falls under section 134 of the Federal-Aid Highway

Act (23 U.S.C. § 134 (2012)). As set forth above, the MPO for the northeastern Chicago region

was created by agreement pursuant to state law, as both the Chicago Metro Planning Agency and

the MPO Policy Committee entered into a memorandum of understanding. See id. § 134(d)(1).

Each MPO consists of local elected officials, officials of public agencies involved with major

metro transportation modes, and appropriate state officials, and moreover, to effect transportation

planning, states can enter into interstate compacts. See id. § 134(d)(2), (f). The MPO for the

Chicago region is specifically made up of a member from the Council of Mayors, the Regional

Transportation Authority, the Chicago Department of Transportation, the Transportation

Department, the Metra, the Illinois State Toll Highway Authority, the Chicago Transit Agency,

northeastern counties (identified infra ¶ 22), Pace, private providers, railway companies, the

Federal Transit Administration, the Federal Highway Administration, and two members from the

Chicago Metro Planning Agency.

¶ 19   Each MPO retains a national interest in promoting safe and efficient management,

operation, and development of transportation between states and urbanized areas. 23 U.S.C.

§ 134(a)(1) (2012). Generally, an MPO’s goal is to plan projects that support economic vitality

in the region, increase transportation safety, and protect and enhance the environment, among

other things. See id. § 134(h)(1). The planning process is “performance-based” consistent with

the national goals of safety, infrastructure maintenance, congestion reduction, and environmental

sustainability, et cetera. See id. §§ 134(h)(2), 150(b). MPOs may deal with more than one metro



                                                  9

No. 1-17-0340


planning area and also must coordinate and consult with officials responsible for other

transportation matters on the state or local level. Id. § 134(g)(3). In addition, they must integrate

other states’ transportation plans into their own. Id. § 134(h)(2)(d).

¶ 20    As stated, to accomplish its interstate and intrastate transportation goals, the MPO, while

cooperating with state and public transportation operators, 5 must adopt both a 20-year long-range

and a 4-year short-range transportation plan in metropolitan areas. See id. § 134(c)(1); 23 C.F.R.

§§ 450.322(a), 450.324(a) (2014). The long-range transportation plan must include such things

as a performance report, a financial plan identifying public and private funding sources available,

and coordinate with Clean Air Act (42 U.S.C. § 7401 et seq. (2012)) agencies. 23 U.S.C.

§134(i)(2), (3) (2012). The long-range plan requires coordination with various state and local

agencies, and the MPO also must allow for public comment, in addition to publishing the plan

for all to review. Id. § 134(i)(6). A short-range plan similarly must have a financial forecast, be

consistent with the long-range plan, provide for notice and comment by interested parties, and be

published for public review. Id. § 134(j). For federal funding, the transportation project must be

included in both the long- and short-range planning for the region, and the federal secretary of

transportation must certify that the planning process of each MPO is being carried out in

accordance with federal law and that the short-term plan has been approved by the MPO and

governor. See id. § 134(c), (j), (k).

¶ 21    Thus, as has been stated, each state-designated MPO holds the sole responsibility for

developing via solicitation of member municipalities, endorsing, and submitting to the federal

secretary of transportation all project requests for the use of Highway Trust Funds apportioned to



        5
         A “public transportation operator” is “the public entity which participates in the continuing,
cooperative, and comprehensive transportation planning process” under section 134 and “is the
designated recipient of Federal funds” generally for transportation. 23 C.F.R. § 450.104 (2014).
                                                    10 

No. 1-17-0340


the subdivisions within the MPOs’ regional jurisdiction. County of Los Angeles v. Coleman, 423

F. Supp. 496, 498 (1976).

¶ 22    Turning to the state provisions at issue, the purpose of the Regional Planning Act is to

describe the powers and responsibilities of the Chicago Metro Planning Agency, “a unit of

government” created to address transportation challenges in northeastern Illinois (including

Cook, DuPage, Kane, Kendall, Lake, McHenry, and Will Counties). 70 ILCS 1707/5, 10 (West

2014). A unit of local government includes counties, municipalities, townships, special districts,

and units designated by law as having limited governmental powers. Ill. Const. 1970, art. VII,

§ 1 6; Blanchard v. Berrios, 2016 IL 120315, ¶ 41. Here, the Regional Planning Act is included in

Chapter 70, entitled “special districts,” of the Illinois statutes, presumably because the Chicago

Metro Planning Agency provides a single service of regional transportation planning and serves

as a “political subdivision, body politic, and municipal corporation.” 70 ILCS 1707/15(a) (West

2014); see Pace v. Regional Transportation Authority, 346 Ill. App. 3d 125, 142 (2003) (a

special district is a relatively autonomous local government that provides a single service).

Special districts, like the Chicago Metro Planning Agency, are creations of the legislature and

thus the statutes granting them power are to be strictly construed; their powers are not to be

enlarged by construction. Baker v. Forest Preserve District, 2015 IL App (1st) 141157, ¶ 39.

While plaintiffs appear to consistently suggest that the Chicago Metro Planning Agency is a

“state agency,” and cite various cases with regard to agency law, the statutes make clear that it is

a special district unit of local government.

¶ 23    The Chicago Metro Planning Agency Board, which is the legislative body responsible for

funding and implementing the transportation planning, consists of 15 voting members from the

        6
         Also, by its terms, the 1970 Illinois Constitution recognizes three categories of state and local
government in Illinois—the State and its agencies, units of local government, and school districts. Ill.
Const. 1970, art. VII, § 1.
                                                     11 

No. 1-17-0340


various northeastern-region counties and City of Chicago, appointed by local government for

four-year terms. 70 ILCS 1707/15, 25 (West 2014). The Chicago Metro Planning Agency’s

duties include providing a “policy framework under which all regional plans are developed,”

coordinating “regional transportation and land use planning,” and identifying and promoting

“regional priorities.” Id. § 20. The Board’s jurisdiction is limited to the northeastern region,

although the board can enter into agreements with other units of local government outside but

contiguous to its jurisdiction. Id. § 30. However, the Regional Planning Act states that, “For

activities related to the MPO, the jurisdiction of the MPO shall be that area defined by federal

requirements.” Id. The Board can sue and be sued; enter into agreements with local governments,

transportation agencies, state agencies, federal agencies, and people in order to implement the

Regional Planning Act; accept and expend funds and moneys; enter into contracts; purchase real

or personal property; and exercise any implied powers that are necessary or convenient for the

Board to accomplish its purposes and that are not inconsistent with its express powers, among

other things. Id. § 35.

¶ 24    One of the Board’s primary duties is to create a regional comprehensive plan every five

years (or consistent with federal law) for land use and transportation while also identifying and

advocating for regional priorities. Id. §§ 45, 50. To that end, the Board must work cooperatively

with other entities including units of local government, citizens, and environmental groups, and

the plan must include forecasts for the overall growth and change in the region, land use, and

transportation policies, along with a 20-year planning forecast, and a listing of public investment

priorities, among other things. Id. § 45. The plan is to “present the goals, policies, guidelines, and

recommendations to guide the physical development of the Region,” and any “elements” of the

plan relating “to transportation shall be developed cooperatively with the [MPO] Policy



                                                 12 

No. 1-17-0340


Committee.” Id. Each local government, transportation agency, and state agency must cooperate

with the Board, providing any information requested. Id. § 51. This, for example, is to create

consistency between municipal or county plans and the Board’s regional plan. Id. In cooperation

with the MPO Policy Committee, the Board must adopt a transportation financial plan. Id. § 55.

To carry out the powers and purposes of the Chicago Metro Planning Agency, the Board can

seek federal funding from the MPO or nontraditional federal funds, as well as from state,

regional, and local sources. Id. § 62.

¶ 25   Section 60 of the Regional Transportation Act recognizes that the MPO Policy

Committee is “federally designated” for the Chicago region to approve “all plans, reports, and

programs required of an MPO.” Id. § 60(a). Section 60 also states that its intent is for federal

transportation and investment decisions to be “fully integrated into the regional planning

process.” Id. § 60(b). At issue in this case is subsection 60(c), which specifically states:

       “The Board, in cooperation with local governments and transportation providers, shall

       develop and adopt a process for making the transportation decisions that require final

       MPO approval pursuant to federal law. That process shall comply with all applicable

       federal requirements. The adopted process shall ensure that all MPO plans, reports, and

       programs shall be approved by the CMAP Board prior to final approval by the MPO.” Id.

       § 60(c).

¶ 26   Plaintiffs hang their hat on the language of section 60(c) requiring that the Chicago Metro

Planning Agency Board approve all MPO plans, reports, and programs prior to final approval by

the MPO Policy Committee. Plaintiffs argue that the language of this clause, which utilizes

“shall,” is clear and unambiguous. Thus, in this case, they argue the MPO Policy Committee’s

vote to include the Illiana Tollway in the short- and long-range regional planning was nullified



                                                  13 

No. 1-17-0340


by the Chicago Metro Planning Agency Board’s vote to exclude it. Plaintiffs assert that further

development of the Illiana Tollway is prohibited. Defendants respond that plaintiffs’

interpretation of section 60(c) renders the statute ambiguous and internally inconsistent, and they

further assert that the language delineating the groups’ separate responsibilities is directory.

¶ 27   The word “shall” generally indicates the legislature’s intent to impose a mandatory

obligation. People v. Robinson, 217 Ill. 2d 43, 50 (2005); Pace, 346 Ill. App. 3d at 140. The term

does not have a fixed or inflexible meaning, however, and may be given a permissive or

directory interpretation depending on the legislative intent. Pace, 346 Ill. App. 3d at 140. “If the

provision merely directs a manner of conduct to guide officials or is designed to secure order,

system, and dispatch in proceedings, it is generally directory.” Id. In other words, we presume

commands to government officials regarding procedure are usually directory, but this

presumption is overcome when there is negative language prohibiting further action in the case

or when the official’s failure to follow the procedure will generally injure the right the procedure

was designed to protect. People v. Delvillar, 235 Ill. 2d 507, 517 (2009); Robinson, 217 Ill. 2d at

56. As such, when a statute expressly prescribes a consequence for failure to obey a statutory

provision, that is very strong evidence the legislature intended that consequence to be mandatory.

Robinson, 217 Ill. 2d at 54.

¶ 28   Whether a statutory command is mandatory or directory is a question of statutory

construction, which we will also review de novo. Id. The answer is a matter of legislative intent,

for which we turn to the language of the statute, which must be read in its plain and ordinary

meaning while keeping in mind the subject the statute addresses and apparent intent of the

legislature in enacting it. Id.; In re M.I., 2013 IL 113776, ¶ 15; Wauconda Fire Protection

District v. Stonewall Orchards, LLP, 214 Ill. 2d 417, 430 (2005). We also must presume that



                                                 14 

No. 1-17-0340


several statutes relating to the same subject—in this case, regional transportation planning—are

governed by one spirit and a single policy, and that the legislature intended the several statutes to

be consistent and harmonious. Uldrych v. VHS of Illinois, Inc., 239 Ill. 2d 532, 540 (2011).

Moreover, when the spirit and intent of the legislature are clearly expressed and the objects and

purposes of a statute are clearly set forth, courts are not bound by the literal language of a

particular clause of the statute that might defeat such clearly expressed legislative intent. Id.

¶ 29    Here, reading the federal and state statutes together, considering their overall intent and

the language of section 60(c), we conclude that the legislature’s use of the word “shall” with

regard to the Chicago Metro Planning Agency Board’s approval process was directory, rather

than mandatory. 7 First, there is no negative language prohibiting further action if the Chicago

Metro Planning Agency Board does not first approve of all MPO plans, reports, and programs. In

fact, the Regional Planning Act contains numerous directives employing the word, “shall,”

without identifying consequences for failing to enforce the obligatory language. For example, the

Board “shall be responsible for developing and adopting a funding and implementation strategy

for an integrated land use and transportation planning process”; the Board “shall create a

Wastewater Committee”; the Board “shall develop, implement, and maintain a process” for

public participation; the Chicago Metro Planning Agency “shall be the authoritative source for

regional data collection” and its “official forecasts shall be the foundation for all planning in the

region”; the Chicago Metro Planning Agency Board “shall be responsible for identifying


        7
          We reject plaintiffs' assertion that the mandatory-directory argument was forfeited because it was
not raised below. Contrary to this contention, the Chicago Metro Planning Agency Board and also the
MPO Policy Committee argued extensively in their summary judgment motion that the Chicago Metro
Planning Agency Board’s approval power under section 60(c) was advisory. Plaintiffs could easily
anticipate a directory reading of the statute from that argument. What’s more, plaintiffs have asked us to
interpret section 60(c) of the Regional Planning Act. We have done so using the mandatory-directory
dichotomy, which is a canon of statutory interpretation that cannot be forfeited. JPMorgan Chase Bank,
N.A. v. Earth Foods, Inc., 238 Ill. 2d 455, 462 (2010).
                                                    15 

No. 1-17-0340


regional priorities”; and, finally, each “local government, transportation agency, and State

agency shall cooperate with and assist the Board in carrying out its functions.” 70 ILCS

1707/15(a), 15(e)(1), 40(a), 44, 50(a), 51 (West 2014). The use of the word “shall” throughout

the statute thus directs the Chicago Metro Planning Agency and its Board in their conduct while

securing order and dispatch in how they are to proceed. The statute, as written, is clearly a blue

print for how government officials are to proceed. While we are not called upon to decide

whether the above-stated sections of the Regional Planning Act are mandatory or directory, we

observe that the frequent use of the word “shall” throughout the statute indicates that the word

cannot always be given a mandatory reading. No one has developed an argument that failure to

abide by these provisions would result in the cancellation or suspension of a planned project, let

alone a project approved by a federally-designated entity like the MPO Policy Committee. We

find section 60(c) no different in its governmental directives. There are no specific consequences

cited for the Chicago Metro Planning Agency Board’s failure to first approve the MPO’s plans,

reports, and programs. See In re M.I., 2013 IL 113776, ¶ 16 (noting a directory reading

acknowledges that no specific consequence is triggered by failure to comply with the statute).

¶ 30   Second, plaintiffs have not identified a right that is being injured by the Chicago Metro

Planning Agency’s failure to first approve of all MPO plans, reports, and programs. The

procedure in the Regional Planning Act sets forth that the Board is to act cooperatively with the

MPO Policy Committee in creating a process for making transportation decisions, while also

complying with all federal requirements. Those federal requirements, under the Federal-Aid

Highway Act, state that all MPOs are to offer final approval of long- and short-range

transportation plans. Nothing in the Regional Planning Act identifies what the Chicago Metro

Planning Agency’s “process” must entail, whether it be votes by the governing body or



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No. 1-17-0340


something more or less. Likewise, nothing in section 60(c) says that failure to obtain an

affirmative vote by the Chicago Metro Planning Agency Board prohibits the MPO Policy

Committee from reaching and implementing its own decision. We find that section 60(c), rather

than requiring first a positive yes vote for MPO plans from the Chicago Metro Planning Agency

Board, requires only that the two governing bodies act cooperatively together. A more

reasonable reading of the statute is that the Chicago Metro Planning Agency Board’s approval of

all MPO plans, reports, and programs is meant to ensure that the MPO Policy Committee is

aware of any local assent or dissent relating to MPO matters. The “approval” is not carried out

for the purpose of authorizing the MPO Policy Committee’s actions. See People ex rel. Illinois

Department of Corrections v. Hawkins, 2011 IL 110792, ¶ 23 (courts are not bound by a statute’s

literal language if it produces absurd or unjust results not contemplated by the legislature).

¶ 31   Our interpretation of the statute is consistent with the 2015 memorandum of

understanding that has been in place between the MPO Policy Committee and the Chicago Metro

Planning Agency for a number of years. Per that agreement, the Board is to forward

recommendations to the MPO Policy Committee, but the MPO Policy Committee is to “act” on

the recommendations and “take final action as required by federal law.” We also find it

persuasive that the Chicago Metro Planning Agency Board, the special district unit of local

government in charge of regional planning, interprets its own authority as secondary to the MPO

Policy Committee. It does not claim to have primacy over transportation decisions by the MPO

Policy Committee.

¶ 32   Examining the state and federal statutes more broadly, this makes sense. While MPOs are

created pursuant to state or local law, they are ultimately creatures of the federal government.

The parties have not identified the number of MPOs that exist among the various urbanized areas



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in the United States, but we presume there are many. These MPOs are tasked with managing

transportation in the regional area but also maintaining consistency among the various MPOs

across the country and also with federal environmental regulations. They thus have broader

policy and jurisdictional reach than the Chicago Metro Planning Agency. This much is reflected

in the MPO Policy Committee’s governing body makeup, which includes among its board

members not just the northeastern counties that form the Chicago Metro Planning Agency, but

other state, local, and federal transportation agencies, as well as two members of the Chicago

Metro Planning Agency. The MPO Policy Committee thus represents the interests of the entire

State of Illinois and also interstate interests, while the Chicago Metro Planning Agency’s

interests are confined to the northeastern counties.

¶ 33    Given the intent of the Congress to offer MPOs long-standing, broad authority over their

regional urban planning areas, it would make little sense for the Illinois legislature to create a

statute allowing a special district unit of local government to effectively preempt the federal

provision. Were we to hold otherwise, any special district unit of local government could block

an interstate project, preventing MPOs from fulfilling their federal objective of providing

metropolitan transportation plans in their jurisdictional area. Rather than finding the Regional

Planning Act at odds with this objective, we find our interpretation of the statute shows it is

consistent with it.

¶ 34    Likewise, by holding that the statute is clear and unambiguous in providing that all

transportation plans require first and final approval only by the MPO, we need not address the

parties’ arguments that section 60(c) is constitutionally preempted by federal law. When state

law conflicts with a federal statute, state law is preempted by the supremacy clause and its

application is unconstitutional. Board of Education, Joliet Township High School District No.



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204 v. Board of Education, Lincoln Way Community High School District No. 210, 231 Ill. 2d

184, 195 (2008). However, we have a duty to avoid constitutional questions whenever possible.

In re E.H., 224 Ill. 2d 172, 180 (2006). Likewise, if it is reasonably possible to construe the

challenged statute in a manner that preserves its constitutionality, we have a duty to do so.

People v. Melongo, 2014 IL 114852, ¶ 20. Our directory reading of section 60(c) does just that,

while also strictly construing the Regional Planning Act so as not to enlarge the powers of the

special district, as required. See Baker, 2015 IL App (1st) 141157, ¶ 39.

¶ 35   In reaching this conclusion, we also reject plaintiffs’ claim that the MPO Policy

Committee is a “board within” the Chicago Metro Planning Agency. The statutes make clear that

these are two separate legal entities, as does the very evidence on which plaintiffs rely. The

Federal Transportation Administration certification review, for example, states “The MPO Policy

Committee and the Chicago Metro Planning Agency Board are independent entities but work at

the policy level to review staff and committee work to ensure consistency and consensus are

achieved.” Plaintiffs also maintain that the MPO Policy Committee’s use of the Chicago Metro

Planning Agency offices or resources somehow converts the MPO Policy Committee into a body

subject to the Chicago Metro Planning Agency. However the federal regulations specifically

contemplate that MPOs may use “the staff resources of other agencies, non-profit organizations,

or contractors to carry out selected elements of the metropolitan transportation planning

process.” 23 C.F.R. 450.310(f) (2014). That the Chicago Metro Planning Agency and the MPO

Policy Committee must act collaboratively does not make them one and the same entity under

the law, nor as plaintiffs suggest, does it make the Chicago Metro Planning Agency hold higher

authority over the MPO Policy Committee.




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¶ 36   Finally, we note that to the extent plaintiffs make certain assertions throughout their brief

without citation to legal authority or development of argument, we have declined to address

them. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2017) (an appellant must set forth contentions on

appeal and the reasons therefore, with citation to the authorities and the pages of the record relied

on); Marzouki v. Nagar-Marzouki, 2014 IL App (1st) 132841, ¶ 12 (issues must be clearly

defined and supported by pertinent authority and failure to develop an argument results in

waiver). Plaintiffs, for example, assert defendants violated the Public Private Agreements for the

Illiana Expressway Act (605 ILCS 130/1 et seq. (West 2014)), which was enacted in 2010, but,

aside from citing one section of the statute, have not developed any argument with supporting

legal authority for their claim. In addition, given our holding, we need not address plaintiffs’

remaining contention that the trial court erred in failing to specify its findings of

unconstitutionality.

¶ 37                                   CONCLUSION

¶ 38   For the foregoing reasons, we affirm the judgment of the circuit court granting summary

judgment in favor of defendants and against plaintiffs, albeit based on different grounds.

¶ 39   Affirmed.




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