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Sweis v. City of Chicago

OPINION FILED APRIL 3, 1986.

ISSA SWEIS ET AL., PLAINTIFFS-APPELLANTS,

v.

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



Appeal from the Circuit Court of Cook County; the Hon. Earl Arkiss, Judge, presiding.

PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

This is an appeal from the dismissal of plaintiffs' complaint attacking the validity of a city ordinance creating a special service tax area and three subsequent tax levy ordinances enacted to fund the operation of a public parking facility.

Plaintiffs are citizens residing within the boundaries of the special service area complained of in this case. Plaintiffs' seven-count complaint was dismissed by the trial court for failing to state a cause of action. This complaint sought the following relief: (1) declaratory judgment as to the validity of the ordinances in question; (2) an injunction against the execution of the ordinances; (3) a writ of mandamus compelling a recount of electors objecting to creation of the area; (4) a refund of all taxes paid as a result of taxes paid as a result of the levies for the area; and (5) damages and attorney fees.

On appeal, plaintiffs contend that the trial court erred by dismissing their complaint in that they are entitled to: (1) declaratory judgment that the ordinances are invalid because the special service area was created in violation of the special services act (Ill. Rev. Stat. 1981, ch. 120, par. 1301 et seq.), and that all tax levies for the area are therefore invalid; (2) an injunction against the levying, collection, and disbursements of taxes for the area because there exists no adequate remedy at law; (3) a writ of mandamus compelling a recount of the number of electors eligible to challenge the ordinances because they have a clear legal right to this extraordinary writ; (4) a refund of all taxes paid to fund the special service area because they followed their available remedies; and (5) an award of money damages and attorney fees.

We affirm the decision of the trial court dismissing plaintiffs' complaint.

BACKGROUND

On June 28, 1982, pursuant to public notice, the committee on finance (finance committee) of the city council of the city of Chicago (city council) conducted a public hearing in order to consider the creation of "City of Chicago Special Service Area No. 2" (Area). This Area was to be a differential taxing district centered in the vicinity of the intersection of Belmont and Central avenues in Chicago. The purpose of the Area was to levy additional taxes on the property owners within its boundaries to fund the operation, maintenance, and upkeep of a public parking facility (garage) located at 3140 North Central Avenue. The city-built garage was leased by the city to the Belmont-Central chamber of commerce (chamber of commerce), which enlisted voluntary contributions from Area merchants in order to provide free parking at the garage. The chamber of commerce petitioned the finance committee to establish the Area because it was unable to enlist the necessary voluntary contributions from Area merchants in order to insure continued free parking at the garage. At the time of the public meeting, plaintiffs, residents of the proposed Area, objected to the establishment of the Area.

On June 30, 1982, the city council adopted an ordinance establishing the Area "to provide special services to that area in addition to the services [already] provided [to that Area] by the City generally." The ordinance also established the Belmont-Central parking commission (commission), giving the commission the power to recommend to the city council annual budgets and tax levies to fund the garage, and to generally supervise and regulate the operation of the garage.

After objecting to the creation of the Area at the public hearing, and pursuant to section 9 of the special services act (Ill. Rev. Stat. 1981, ch. 120, par. 1309), plaintiffs began to solicit signatures from electors and record owners of land residing in the Area in an effort to challenge the law. On August 27, 1982, plaintiffs filed with the clerk of the city of Chicago (city clerk) 60 sheets of signatures of persons claiming to be either record owners of property located in the newly created Area, or electors residing therein. Plaintiffs claim that these petitions successfully abolished the Area and the tax because they contained signatures of at least 51% of the record owners and 51% of the electors referred to above, as is required to successfully veto the tax under the provisions of the special services act (Ill. Rev. Stat. 1981, ch. 120, par. 1309).

On September 17, 1982, despite plaintiffs' claim that the Area was abolished, the city council levied an ad valorem tax for the year 1983 on all taxable real property in the Area. This original levy was amended on March 25, 1983, levying the property taxes for the year 1982, making them collectible in 1983. This amendatory ordinance also added four parcels of land to the Area.

After considerable review by the corporation counsel of the city of Chicago of the boundaries of the Area and the names of the signatures appearing on plaintiffs' petition to abolish the tax, the city determined that plaintiffs failed to obtain the requisite number of signatures to successfully challenge the ordinances in question. Plaintiffs were informed of the city's decision by a letter from the corporation counsel to one of the plaintiffs, Harry Mazzoni. Although the letter stated that it was the city's final position on the matter, city attorneys continued to discuss with plaintiffs their complaints regarding the city's conclusion. By letter dated August 22, 1983, plaintiffs were advised that the city stood by its decision delineated in the June 14, 1983, letter to Harry Mazzoni. A subsequent tax levy for the 1983 tax year in the amount of $61,568 was unanimously approved by the city council on September 15, 1983.

On June 29, 1984, two years after creation of the Area, and one year after disbursement of the funds began, plaintiff Mazzoni and two others filed this action, purporting to represent a class of persons similarly situated. The city filed a motion to dismiss plaintiffs' complaint which was granted by the trial court on September 14, 1984. This appeal followed.

OPINION

Before addressing the merits of this case, we briefly discuss the city's authority to levy differential taxes through the creation of the Area:

The authority for establishing the Area is firmly grounded in our State Constitution, which allows home rule units, counties, and municipalities to levy additional taxes upon areas within their boundaries. These taxes are used to provide those areas with special services not provided to other areas situated within the boundaries of the particular home rule unit, county, or municipality. (See generally, Ill. Const. 1970, art. VII, secs. 6(1), 7.) These provisions, however, are not self executing and must be enacted through "enabling legislation" adopted for ...


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