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Ciacco v. City of Elgin

OPINION FILED JUNE 25, 1980.

FRANK CIACCO ET AL., PLAINTIFFS-APPELLANTS,

v.

THE CITY OF ELGIN ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Kane County; the Hon. MARVIN D. DUNN, Judge, presiding.

MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

The plaintiffs, who are taxpayers in the city of Elgin, appeal from the judgment of the circuit court denying an injunction sought by the plaintiffs to enjoin the collection of certain taxes and the purchase of property pursuant to a city ordinance creating a service district known as Special Service Area Number Two. The purpose of Special Service Area Number Two is to build and maintain a downtown parking lot. The authority for a special tax to be imposed within Special Service Area Number Two, in addition to the general city taxes, is found in the Illinois Constitution of 1970, article VII, section 6, and the subsequent enabling legislation passed by the General Assembly being section 1 et seq. of "An Act to provide the manner of levying or imposing taxes for the provision of special services to areas within the boundaries of home rule units and non-home rule municipalities and counties" (Ill. Rev. Stat. 1977, ch. 120, par. 1301 et seq.).

The Constitution gives general authority for the creation of such a special district under article VII, section 6, but the supreme court held in Oak Park Federal Savings & Loan Association v. Village of Oak Park (1973), 54 Ill.2d 200, that that section of the Constitution was not self-executing and that enabling legislation was required to be enacted by the General Assembly. This was done by special statute as cited above, the Act providing for the manner of levying taxes for the provision of special service areas (Ill. Rev. Stat. 1977, ch. 120, par. 1301 et seq.). The Act defines the special service area and prescribes the proceedings to be followed for establishing such area, including notice and public hearing and the method of filing objections to the creation of such area.

The complaint filed by the plaintiffs in this case prayed for (1) an injunction to halt the spending of any money pursuant to the ordinance authorizing the creation of the special service area, and (2) a declaration that the ordinance was void because properly objected to by at least 51% of the electorate residing in the area and 51% of the owners of record therein, and because the ordinance creating the special service area was not enacted in accordance with the enabling legislation and violated due process.

After an extensive hearing the trial court denied the injunction prayed for and held the ordinance was properly enacted and was valid and that the required percentage of owners of record had not filed valid petitions objecting to the creation of the special service area. The trial court also found that 51% of the electors residing within the area had properly objected to the creation of the special service area, and as to that finding the defendants have cross-appealed.

The plaintiffs in this appeal raise the following issues: (1) Whether the ordinance creating the special service area was passed in accordance with the provisions of the enabling act; (2) whether or not at least 51% of the owners of record of land within the proposed area filed valid objections to the creation of the special service area; (3) whether the passage of the ordinance in creating the special service area and the levy of the taxes therefor violated the equal protection and due process clauses of the constitutions of the United States and the State of Illinois; (4) whether or not the enabling statute (sections 1-11) is contrary to the constitutions of the United States and the State of Illinois and (5) whether the trial court erred in refusing to admit certain testimony offered by the plaintiffs.

The plaintiffs raise several points in support of the contention that the ordinances creating the special service area and levying the taxes therefor were not passed in accordance with the enabling legislation: (a) That proper notice of the hearing on the ordinance was not given; (b) that the boundaries of the area were not designated by a proper and correct legal description; (c) that the city clerk did not file a certified copy of the ordinance with the county clerk within the time required by law and moreover failed to file an accurate map of the area with the county clerk; (d) there was also a contention that the corporation counsel and others induced certain taxpayers to suppose that their property — of a religious or charitable nature — would be exempt from the tax imposed by the service area. Inasmuch as the ordinances as enacted did not provide for such exemptions and no owners of religious or charitable property have complained, this contention may be disregarded insofar as it affects the validity of the ordinance.

• 1 Several questions under the general category of failure to comply with the enabling legislation are raised as to notice. It is contended that notice of the proposition to create a special service area was sent only to owners of real estate within the area, whereas the enabling act specifies that "all interested persons owning real estate or taxable personalty located within the special service area will be given an opportunity to be heard at the hearing regarding such tax levy." (Ill. Rev. Stat. 1977, ch. 120, par. 1304(3).) This indicates that notice should have been given to owners of personal property within the area, who would be taxed on its value. However, these personal property taxpayers do not appear to have objected to the ordinance on the ground invoked here — the objection comes from the plaintiffs in this action who are real property owners and who do not assert that no notice was given to them. It is not established that any personal property taxpayers were prejudiced by lack of notice, but whether they were or not, the plaintiffs here received notice and were not so prejudiced. They have no standing to complain that others were prejudiced by lack of notice. (City of Mattoon v. Jennings (1929), 336 Ill. 93.) We will not invalidate a city ordinance on the ground that persons who did not object to its procedural aspects would have had good grounds for doing so had they been so inclined.

• 2 Also, as to notice of the hearing, it is conceded by the city that there was an error made in designating the boundaries of the proposed area in the published notice describing the boundaries of the area to be created. This notice indicated that the area was partly in "the northeast quarter of section 13," whereas the northeast quarter of section 13 is actually entirely outside the boundaries of the proposed area of Special Service Area Number Two. No map was furnished with the notice, and when the map of the area was later filed by the city clerk with the county clerk it confirmed the fact that the northeast quarter of section 13 was outside the area designated on the map and otherwise described by block and subdivision in the ordinance. The assessment map supervisor for the county testified that the inadvertent error in including "the northeast quarter of section 13" in the legal description of the area did not prevent her from performing her function of preparing the tax code numbers, as she did not work from the map but from the subdivision and block description, working primarily from the list of tax parcels. While there was an error, it does not appear to have prevented the correct designation of the actual area involved or to have hindered the persons entitled to notice from receiving it, since the erroneous description was disregarded in practical effect, in favor of the subdivision and block designation which accurately designated the area in question. We do not regard this error as of such magnitude as to invalidate the notice and the ordinance. In Dowsett v. City of East Moline (1956), 8 Ill.2d 560, 569, the court said:

"Where electors have been given notice of the time and place of holding an election and the question submitted, substantial compliance with the statute regarding notice is sufficient where no prejudice is shown."

In People ex rel. Village of Worth v. Ihde (1961), 23 Ill.2d 63, 66, where there was a discrepancy between the petition for incorporation and the accompanying map, the court said:

"Descriptions of municipal boundaries are not construed with the same strictness as those contained in deeds and contracts (Dowsett v. City of East Moline, 8 Ill.2d 560), and if the incorporating petition and accompanying map, when viewed together, fairly apprise the public of the property involved, the description will be considered proper."

We do not think an interested person was unjustly deprived of notice or seriously misled by the error in referring to the northeast quarter of section 13 and this contention may be disregarded.

• 3 A further technical objection, based on noncompliance with the enabling legislation, is raised with regard to the requirement that the city clerk file an accurate map of the proposed service area with the county clerk at the time of filing the ordinance creating the special service area. It is contended that since the map furnished to the county clerk did not include "the northeast quarter of section 13" — erroneously referred to by the notice and ordinance — that the map did not comport with the ordinance and therefore was not accurate. Since the plaintiffs themselves assert that the ordinance is incorrect in its reference to the northeast quarter of section 13, obviously if the map is correct it must differ from the ordinance, but as we have indicated above, we are inclined to disregard this error in mentioning the northeast quarter of section 13 since its effect was otherwise negated. It is also pointed out that the city clerk did not file the ordinance with the county clerk by the third Tuesday of September — the 20th — as required by statute, but filed it on September 21, the next day. Since the ordinance authorizing the levy of taxes had been filed on September 20, as required, the levy was filed before the ordinance. However, it is not contended that the levy of taxes was made before the ordinance was passed but only that it was filed with the county clerk preceding the filing of the ordinance. We fail to ...


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