A judge has shot down -- for now -- a lawsuit by East Dundee to prevent Walmart from getting funding from a special taxing district to help the company build a new store in Carpentersville.
Kane County Judge David Akemann issued his order late Thursday dismissing the lawsuit, but giving East Dundee 30 days to refile its litigation, this time with Walmart added as a defendant.
"At this stage and presently no actual justiciable controversy exists that would allow this court to provide the plaintiff with the remedy it seeks," read part of Akemann's ruling.
Carpentersville Village President Ed Ritter said East Dundee made the wrong assumptions about Carpentersville.
"We understand the law and we did not intentionally or unintentionally entice Walmart to consider Carpentersville as a place to open the store," Ritter said. "It's never good when one governmental body has to go toe to toe with another governmental body."
The world's largest retailer announced last year it plans to erect a 108,000-square-foot supercenter in Carpentersville off Route 25 and close a 22-year-old store in East Dundee.
East Dundee sued last month, arguing that Walmart should not be allowed funding from a Tax Increment Financing District to help build a new store because the new site is three miles away from the existing location and state law mandates a distance of at least 10 miles.
In a TIF District, property tax levels are frozen for a period up to 23 years in a "blighted" area. As redevelopment occurs, the increased taxes from the land, or the "increment," are used to pay for new streets or infrastructure or given to a company or builder to help defray development costs.
East Dundee Village President Jerald Bartels said the village should keeping fighting for the taxpayers.
"It's my belief or my opinion that the village should resubmit and continue on," Bartels said, adding that a closed meeting to discuss the issue will be held Monday. "We'll probably regroup as a board, have a conference about it and decide officially how to move forward from here."
Richard Gleason, an attorney representing East Dundee, noted the judge didn't totally close the book on the village's lawsuit.
Gleason contended that Walmart has taken its plan to Carpentersville's plan commission and that village trustees have approved a resolution indicating their conceptual support of TIF funding.
"It shows they're pretty serious," he said, also arguing that TIF laws are to help villages and ensure municipalities don't take businesses from each other. "Everybody ought to play on a level playing field. We feel that (10-mile distance) section of the TIF statute, that's what it's there for."
James Wargo, an attorney representing Carpentersville, agreed with Akemann's ruling and called East Dundee's lawsuit "premature."
"It's obviously a very favorable decision on our end," Wargo said. "At this point in time, there's no controversy for the court to rule on. There hasn't even been a (TIF) application from Walmart."
The two sides return to court March 22.