Appeal from the Circuit Court of McHenry County; the Hon.
Roland A. Herrmann, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 11, 1983.
This appeal arises from the levy of a special assessment for an improvement in the city of Woodstock (hereinafter city). Following a hearing on objections to the special assessment, the trial court reapportioned the percentage of public and private assessment for the improvement, reducing the amount that the property owners who had objected would pay. The city appeals that decision. The property owners who had objected (hereinafter objectors) cross-appealed. Other property owners who had not objected to the special assessment until after the objectors' challenges had been heard and ruled on (hereinafter defaulters) also appealed.
In February 1982, the city enacted an ordinance providing for the construction of a storm sewer, curb and gutter, sidewalk, gravel base course, and bituminous concrete surface on a certain section of Calhoun Street. The improvements had been duly recommended by the board of local improvements. Thereafter, the city filed a petition in the circuit court of McHenry County seeking the levy of a special assessment for those improvements. A commissioner was appointed to make an assessment of the cost of the improvement. He found the total cost to be $523,512.69 and designated the amount for the public benefit as $366,433.72 and the private benefit as $157,078.97. He filed an assessment roll in accordance with those figures.
Objections were filed by owners of certain properties included in the assessment roll, including the 27 objectors now appealing and others. In March 1982, an order of partial confirmation was entered against lots whose owners had not appeared or objected, noting that proper notice had been published. The legal objections were tried before the court on May 4, 1982. The court entered an order on May 14, 1982, overruling all objections, reducing the percentage proportion of the total cost of the improvement to 15% as to the objecting properties and raising to 85% the public benefit, and denying the objectors' request for a jury trial. The assessment roll was revised, objections to it and a jury trial on those objections were denied, and on June 10, 1982, the revised assessment roll was confirmed.
On July 8, 1982, other property owners included on the assessment roll, who had not previously objected, filed a motion to vacate the order of confirmation and for leave to file objections to the revised assessment roll. That motion was denied.
The city appealed the reduction of the percentage proportion as to the objectors, the objectors cross-appealed, and the defaulters appealed. The issues presented for review are as follows: (1) whether the improvement for which the special assessment was sought was a local improvement within the meaning of article VII, section 7 of the Illinois Constitution; (2) whether the objectors were entitled to a jury trial on certain objections they raised; (3) whether certain benefited property was erroneously omitted from the assessment roll; (4) whether the trial court has the authority to reduce the amount of private benefit to the objectors' property; (5) whether there was a proper basis in the evidence for the amended apportionment ordered by the trial court; (6) whether it was error for the trial court to limit the amended distribution of private and public benefit to only those parcels for which objections had been filed; and (7) whether the defaulters should have been permitted to challenge the revised assessment roll, notwithstanding the order of default and partial confirmation entered against them.
• 1 Article VII, section 7 of the Illinois Constitution of 1970 gives municipalities that are not home rule units the powers to make local improvements by special assessments. In their cross-appeal, the objectors challenge the characterization of the proposed improvement as a "local improvement." They contend that the improvement contemplated is not a local one in that its primary purpose is to benefit the public and it only incidentally benefits the private properties affected.
Local improvement was defined in City of Chicago v. Blair (1894), 149 Ill. 310, 314-15, as a public improvement that, by reason of its being confined to a locality, enhances the value of adjacent property, as distinguished from benefits diffused by it throughout the municipality. In Loeffler v. City of Chicago (1910), 246 Ill. 43, 52, the court noted that the test for whether an improvement is local is whether it specially benefits the property assessed; in addition, an improvement may be local even when of some general benefit to the public if the substantial benefits to be derived from it are local in their nature and the portion of the city where the improvement is made will be specially and peculiarly benefited in the enhancement of the property. The court also stated that the test of a local improvement is not its locality or intended use, but whether it will specially enhance the value of the property in its locality. 246 Ill. 43, 46.) In City of Edwardsville v. Jenkins (1941), 376 Ill. 327, 330, the court found that whether an improvement is local depends upon whether the benefits arising therefrom are special and local and specially benefit the property assessed, not upon the character of the improvement or the kind of service to be rendered.
The objectors rely on the rule of City of Waukegan v. DeWolf (1913), 258 Ill. 374, 381, where the court stated that if the purpose and effect of an improvement are to improve a locality, it is a local improvement even though there is incidental benefit to the public; but if the primary purpose and effect are to benefit the public, it is not a local improvement although it may incidentally benefit property in a particular locality. That rule was reiterated by this court in Village of Hinsdale v. Lowenstine (1974), 23 Ill. App.3d 357.
The city responds that, under article 9 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, pars. 9-1-1 through 9-5-3), the "benefit" is to be interpreted in terms of the total cost of the improvement and is equal to the assessment. Section 9-2-45 provides that there be an estimate of what proportion of the total cost of an improvement will benefit the public and what proportion will benefit the property to be benefited and then an apportionment of the total cost between the municipality and that property so that each bears its relative equitable proportion. (Ill. Rev. Stat. 1981, ch. 24, par. 9-2-45.) The amount benefiting the property is then apportioned among the several parcels in the proportion in which they will be severally benefited by the improvement, no parcel being assessed a greater amount than it will actually be benefited. The city's argument equating benefit and assessment suggests that if there is any calculable private benefit, a special assessment may be levied. However, the objectors are correct in their argument that there must first be an improvement that falls within the constitutional definition of a local improvement before the levy of a special assessment is warranted.
It has been established that whether a given improvement is a local improvement within the meaning of the constitution is primarily a matter for determination by the corporate authorities. While whether such an improvement is local or general is a question of law, the question of whether the facts in a particular case bring an improvement within the definition of a local improvement is one of fact to be determined by the circumstances established by the evidence. However, the corporate authority's determination that a given improvement is a local improvement within the meaning of the constitution is subject to review by the courts>. (Johnson v. Village of Bellwood (1930), 338 Ill. 605, 608-09.) The objectors contend that the standard of establishing that a municipality was arbitrary and unreasonable, when challenging a special assessment, applies to the issue of whether an improvement is necessary but not to the issue of whether an improvement is local. However, in Illinois Central R.R. Co. v. City of Decatur (1894), 154 Ill. 173, 176, the court found that the power of a city council or board of trustees to declare what shall be local improvements is necessarily implied from the power to make the same in the mode and by the means prescribed in the statute and that a municipality may not declare such an improvement arbitrarily and unreasonably and without reference to benefit. Thus, since deciding when particular circumstances bring an improvement within the definition of a local improvement is a legislative function, as the city urges, that determination will not be overturned unless arbitrary or unreasonable.
Several cases dealing with street improvements have characterized such improvements as local. In Village of Marissa v. Jones (1927), 327 Ill. 180, 189, the paving of the village's main road was deemed a local improvement. While a benefit to the public generally (particularly the part connecting the State hard road through the village), it would also be a particular advantage to the immediate locality and increase the value assessed. In Village of Glencoe v. Hurford (1925), 317 Ill. 203, 206, widening a street and taking off sharp angles at certain intersections was found to increase the value of the property specially assessed and therefore to be a local improvement. Those cases followed Illinois Central R.R. Co. v. City of Decatur (1894), 154 Ill. 173, 176, where paving a street with brick was considered a local improvement. In City of Peoria v. Peoria Ry. Co. (1916), 274 Ill. 48, 50-51, although the widening of a street would improve it for general travel, it would necessarily be a particular advantage to the immediate locality and was therefore a local improvement. In City of Chicago v. Lord (1917), 277 Ill. 397, 400, the widening of a street so narrow as to be inconvenient for street uses in connection with private property was a particular and immediate advantage to the locality.
In the instant case, despite the conceded benefit to the public, there was sufficient specific private benefit directed to the objectors' property as distinguished from the municipality as a whole to be derived from the street improvements. There was evidence that the improvement was for a portion of Calhoun Street between Jefferson Street on the west and Country Club/Route 47 on the east. It crossed railroad tracks between Jefferson Street and Seminary Avenue and was to be widened to 28 feet there and conformed to the Illinois Commerce Commission regulations. East of Seminary, it was to be widened to 34 feet from a width of 20 feet, with a new storm sewer, curb, gutter, and sidewalk installed. The project would improve the condition of Calhoun Street and also improve access to the downtown area. In light of this evidence, it cannot be said that the private benefit was only incidental to the public benefit or that the characterization of the improvement as local was unreasonable or arbitrary.
The objectors had filed several objections to the original assessment roll. They contended that the proposed improvement was not a local improvement; that even if the proposed improvement was partially a local improvement, the commissioner's apportionment between public and private benefit was inequitable; that the subject properties would not be benefited to the amount assessed thereon; and that the subject properties were assessed more than their proportionate share of the cost of the improvement. When the hearing commenced on May 4, 1982, it was correctly established by the court and counsel that there was to be a jury trial, preceded by an evidentiary hearing as to legal objections. At the hearing before the court, the city presented a prima facie case by introducing into evidence exhibits reflecting the earlier municipal proceedings and the assessment roll. The objectors then introduced testimony as to the nature, effect, purpose, extent, and cost of the improvement, as well as evidence that the commissioner's division of public and private benefit was incorrect. On rebuttal, the city offered evidence of the local nature and necessity of the improvement and evidence as to how the commissioner arrived at the assessment roll.
Following the hearing, and after much discussion as to the province of the court versus that of the jury, the court ruled orally that the assessment rate be amended from approximately 70% public and 30% private to 85% public and 15% private, that there was no disproportionate assessment as to the assessment roll, and that all objections were disposed of and the request for a jury trial was denied. This was confirmed by written order. Later requests for a jury trial regarding the revised assessment roll were also denied.
• 2 In this cross-appeal, the objectors urge as error the denial of the request for a jury trial on the objections that their property would not be benefited to the amount assessed against it and that the property was assessed more than its proportionate share of the cost of the improvement. The city's response is that if this court reverses the trial court's amendment of the assessment roll, thus reinstating the original assessment roll, then the objectors would be entitled to a hearing before a jury; ...