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07/09/87 Kennedy Brothers, Inc., v. the Property Tax Appeal

July 9, 1987





510 N.E.2d 1275, 158 Ill. App. 3d 154, 110 Ill. Dec. 244 1987.IL.974

Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Jr., Judge, presiding.


JUSTICE REINHARD delivered the opinion of the court. UNVERZAGT and NASH, JJ. concur.


Plaintiff, Kennedy Brothers, Inc., appeals from the judgment of the circuit court of Lake County, on administrative review, affirming the decision of the Property Tax Appeal Board that section 20g-4 of the Revenue Act of 1939 (Ill. Rev. Stat. 1983, ch. 120, par. 501g-4) did not apply to plaintiff's 1983 property assessment.

Plaintiff raises two issues on appeal: (1) whether section 20g -- 4 is applicable in determining the 1983 real estate assessment of plaintiff's property, and (2) whether the PTAB acted properly in denying plaintiff tax relief even if section 20g -- 4 is not applicable.

Plaintiff filed a petition before the Lake County board of review (board) alleging that 48 lots which it owned in Vernon Township were overassessed for the year 1983. Plaintiff argued that the subject property met the requirements of section 20g -- 4 of the Revenue Act of 1939 (Act), which became effective September 26, 1983, and that the section applied to 1983 assessed valuations, thereby entitling plaintiff to a lower assessed valuation on the property. The board, in a decision mailed March 8, 1984, determined that there should be no change in the assessed value of plaintiff's property as section 20g -- 4 should not be implemented until the tax year 1984. The board stated that to implement the section in 1983 would create inequity in assessments between townships resulting in unfair taxation.

On April 11, 1984, plaintiff filed a petition before the PTAB again arguing that section 20g-4 applied to the 1983 assessed valuations. Plaintiff stated that the fair market value of the property was $6,600 per acre, the current fair market value of "open space" land in Lake County which closely approximated "the estimated price such land currently would bring at a fair voluntary sale for use by the buyer for the same purposes for which such land was used when last assessed prior to its platting" as provided by section 20g-4(b) of the Act (Ill. Rev. Stat. 1983, ch. 120, par. 501g-4(b)). Plaintiff requested that the total assessed valuation be reduced from $842,710 to $54,667.

The board filed a letter with the PTAB on July 10, 1984, explaining how its opinion was derived. The board stated that the bill creating section 20g -- 4 was not signed until September 1983 and that the

"Board had already concluded about 50% of our work by that time so many of the townships in the County had already been closed and taxpayers in these areas who qualified under this bill did not have the opportunity to request relief. Therefore, this Board concluded that to implement this bill as of Sept., 1983 would create inequity of assessments county wide and result in unfair taxation."

Plaintiff filed a supplemental memorandum with the PTAB on November 9, 1984. Plaintiff again argued the applicability of section 20g -- 4 and that the fair market value of the property was $6,600 per acre, but also stated that the maximum fair market value was $25,000 per acre. Plaintiff attached an appraisal of the property which determined that $25,000 per acre was the fair market value of the property as of January 1, 1983, assuming the applicability of section 20g -- 4 and based in part on six recent sales of raw and undeveloped land in Vernon Township. Plaintiff requested that the 1983 assessed valuation be established at $54,667, as previously requested, but that the assessed valuation in no event be established at greater than $209,176, a figure based on the appraiser's determination of the property's fair market value.

The PTAB affirmed the board's decision on November 4, 1985, stating that, although plaintiff and the board stipulated that the subject property conforms to the requirements of the statute, section 20g -- 4 was intended to first apply to the 1984 assessment year. Specifically, the PTAB's decision stated that: (1) the date of valuation of the 1983 assessment is January 1, 1983; (2) section 20g -- 4 was signed into law on September 26, 1983; (3) a statute operates prospectively absent a clear expression of retroactivity; and (4) no clear expression of retroactivity was made in the section of the Act at issue here.

Plaintiff then filed a three-count complaint for administrative review, requesting that its 1983 assessments be revised pursuant to section 20g -- 4 and arguing for the first time that, even if section 20g -- 4 does not apply, the assessment of the property was against the manifest weight of the evidence because of the appraisal submitted to the PTAB and because the county imposed an improvements assessment on two of the 48 lots which were vacant and should have had a "zero" improvements assessment. Following a hearing, the circuit court affirmed the PTAB's decision and this appeal followed.

Plaintiff's first contention is that the PTAB's determination that section 20g -- 4 of the Act did not apply until the 1984 assessment year is based on an erroneous construction of the statute and should have been reversed by the trial court. Section 20g -- 4 provides, in pertinent part:

"(a) In all counties containing less than 2,000,000 inhabitants, the platting and subdivision of land into separate lots and the development of such subdivided land with streets, sidewalks, curbs, gutters, sewer, water and utility lines shall not increase the assessed valuation of all or any part of the land so platted and subdivided provided that:

(1) Such land is platted and subdivided in accordance with "An Act to revise the law in relation to plats", approved March 31, 1874, ...

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