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Mead v. Board of Review

OPINION FILED JUNE 3, 1986.

JOHN T. MEAD, PLAINTIFF-APPELLANT,

v.

THE BOARD OF REVIEW OF MCHENRY COUNTY ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of McHenry County; the Hon. Roland Herrmann, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 7, 1986.

The plaintiff taxpayer, John T. Mead, sought from the McHenry County board of review a reduction in the amount of the 1979 assessment of his real property located in Barrington Hills from $39,900 to $33,530 which was the 1978 assessed valuation. The $33,530 assessed value reflected land valued at $13,290 and buildings valued at $20,240; the $39,900 assessed value reflected an increase in land value to $19,810 and a decrease in building value to $20,090. The board denied the reduction and also denied his application for a homestead improvement exemption as provided in section 19.23-2 of "An Act to revise the law in relation to the assessment of property and the levy and collection of taxes" (the Act) (Ill. Rev. Stat. 1979, ch. 120, par. 500.23-2).

He appealed to the Property Tax Appeal Board (PTAB), and a hearing was held on July 29, 1980. With respect to the exemption issue, the hearing officer explained that the PTAB was without jurisdiction to entertain the taxpayer's appeal. As to the assessed value of his property, it was plaintiff's contention that his 10-acre site was no more valuable than a similarly situated 5-acre site, because "approximately half of it is swamp and lowland." According to a flood susceptibility analysis report dated July 30, 1980, which the parties had agreed to obtain the day after the hearing, it showed plaintiff's land was free from flood "except for a small depression area to the west side of this parcel (approximately 16% of the parcel)." During the hearing, the taxpayer had conceded only that his additional acreage over the minimum five acres required for a building site might yield a "slight premium" upon a sale of his land. However, he introduced no evidence to clarify that statement, nor did he refute the flood susceptibility analysis, although the PTAB provided him time to do so before issuing a final decision. At the hearing, plaintiff submitted evidence for comparison purposes of one sale of nearby property for $79,000; that property consisted of a vacant five-acre site, and it had an assessed value of $12,000.

The McHenry County deputy assessor testified at the hearing that land parcels in Barrington Hills were assessed on the basis of size, regardless of the number of building sites on a particular parcel. The first five acres of this taxpayer's land were assessed at approximately $12,800 per acre. The deputy assessor testified that the minimum assessment for land in excess of the five acres required for a building site is $8,000 per acre; this taxpayer's additional five acres were assessed at slightly more than that minimum rate. No adjustment had been made for swampy areas of the parcel. The deputy assessor indicated at the hearing that such adjustments possibly had been made on some other parcels, and the parties agreed the records would be checked the following day to ascertain whether this was true or not. The PTAB's decision reflects that no records were later submitted by the deputy assessor to support her impression that boggy, waterlogged land was assessed at a very low rate in that area.

The PTAB made no finding with respect to the claimed homestead improvement exemption, but affirmed the assessed valuation of $39,900 in its August 26, 1980, decision. On September 30, 1980, plaintiff filed this action for administrative review. He filed an amended count II on December 1, 1980, and count I of his complaint was stricken by order dated January 19, 1981. The PTAB filed its answer on February 2, 1981; thereafter, the case remained dormant for over three years, until the PTAB moved for a hearing on the merits in March 1984. The plaintiff filed an affidavit purporting to clarify an "inaudible" portion of the PTAB transcript concerning the assessment of his pole barn and noting that he was informed that the PTAB discussion of his case continued after he had left the hearing. Plaintiff also filed a "trial memorandum" setting forth his position as to the assessment and the homestead improvement exemption. Based on the parties' arguments, the PTAB record, the pleadings, affidavits and memorandum on file, the McHenry County circuit court entered its order affirming the final decision of the PTAB on January 3, 1985, and plaintiff filed the instant appeal.

The PTAB asserts the plaintiff's brief is not in compliance with supreme court rules governing appellate review and urges that his appeal be dismissed. The PTAB also asserts the plaintiff's argument that the actions of the board of review were "tainted and voidable" because the review board chairman was also a McHenry County commissioner is an issue which was not presented to the administrative agency and, thus, should be considered waived by this court.

We agree plaintiff's brief evidences a notable disregard for the supreme court rules governing appellate review (87 Ill.2d Rules 341, 342). Even a lack of appellate experience, if that were the case perhaps, would not suffice to explain the inclusion by plaintiff in his "Statement of Facts" of not only argumentatively framed out-of-context excerpts improperly referenced to his "Appendix" rather than the record, but also citations to cases and to opinions of the Attorney General. Supreme Court Rule 341 clearly delineates what is and what is not to be included in the statement of facts. (87 Ill.2d R. 341(e)(6).) In contrast, his 2 1/2 page "Argument" section is devoid of citations to supporting authority, and once again includes references to his "Appendix" rather than the record on appeal. The "Table of Contents" provided does not purport to index the record on appeal but, rather, indexes the many items included in plaintiff's "Appendix," the majority of which are improperly included there.

• 1 The nonconformity of plaintiff's brief and the three-year period during which this case lay dormant in the trial court cannot help but be viewed as a measure of the relative importance afforded the instant cause by plaintiff himself. Although we have the authority to dismiss an appeal for the appellant's failure to show substantial compliance with the rules of procedure (Bank of Ravenswood v. Maiorella (1982), 104 Ill. App.3d 1072; Biggs v. Spader (1951), 411 Ill. 42, cert. denied (1952), 343 U.S. 956, 96 L.Ed. 1356, 72 S.Ct. 1051), and we are entitled to have the issues clearly defined and to have cited pertinent authority (Fuller v. Justice (1983), 117 Ill. App.3d 933, 943), we believe a determination of the merits of the appeal, to the extent they are presented here by the plaintiff, may serve to conclude this long-standing litigation. We note, however, that to the extent plaintiff's statement of facts or other matters in his brief and reply brief are not supported by the record, we will disregard, rather than strike, them (Schroeder v. Meier-Templeton Associates, Inc. (1984), 130 Ill. App.3d 554, 558), and a contention which is supported by some argument but by no authority whatsoever will be considered waived (In re Marriage of Anderson (1985), 130 Ill. App.3d 684, 689). Accordingly, although the PTAB's assertion that this appeal should not be entertained due to the deficiencies of plaintiff's brief described above is well founded, we choose instead to dispose of the matters raised by this opinion.

• 2 At the outset, we agree that the plaintiff has waived the issue of the "taint" which may have attended the actions of the board of review because its chairman was also a McHenry County commissioner. Plaintiff did not raise the issue of a possible conflict of interest at the hearing before the PTAB at all, and although he included the allegation concerning only the chairman of the board of review in his complaint for administrative review, he did not include any argument on the matter in his "Trial Memorandum" filed in the circuit court.

In Commonwealth Edison Co. v. Department of Local Government Affairs (1984), 126 Ill. App.3d 277, 288, it was stated:

"`[W]here a party has presented his case or defense to a commission upon a certain and definite theory, he will not be permitted to change in court and prevail upon another theory and issue not presented to the commission.' Robert S. Abbott Publishing Co. v. Annunzio (1953), 414 Ill. 559, 565-66; accord, Environmental Protection Agency v. Pollution Control Board (1976), 37 Ill. App.3d 519, 521."

Considering a similar waiver issue, the court in E & E Hauling, Inc. v. Pollution Control Board (1985), 107 Ill.2d 33, 38-39, wrote:

"`A claim of disqualifying bias or partiality on the part of a member of the judiciary or an administrative agency must be asserted promptly after knowledge of the alleged disqualification.' (Duffield v. Charleston Area Medical Center, Inc. (4th Cir. 1974), 503 F.2d 512, 515.) The basis for this can readily be seen. To allow a party to first seek a ruling in a matter ...


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