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09/15/94 FOREST PRESERVE DISTRICT DU PAGE COUNTY v.

September 15, 1994

FOREST PRESERVE DISTRICT OF DU PAGE COUNTY, PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF REVENUE, BOARD OF REVIEW OF DU PAGE COUNTY, C. GORDON SHULTES, LISLE TOWNSHIP, AND NAPERVILLE COMMUNITY UNIT SCHOOL DISTRICT 203, DEFENDANTS-APPELLEES (WASTE MANAGEMENT OF ILLINOIS, DEFENDANT-APPELLANT).



Appeal from the Circuit Court of Du Page County. No. 92-MR-361. Honorable John S. Teschner, Judge, Presiding.

Rehearing Denied October 14, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Doyle, Inglis, Woodward

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

This case raises the principal question of whether a certainparcel of land, which is located within the Greene Valley Forest Preserve, is exempt from taxation as property being used for a public purpose under either section 19.6 or section 19.9 of the Revenue Act of 1939 (35 ILCS 205/19.6, 19.9 (West 1992)). Section 19.6 exempts from taxation "all property owned by a county, village, taxing district, or city that is being held for future expansion or development, except property that has been leased or may be leased by a county, village, taxing district, or city to lessees for use other than public purposes." (35 ILCS 205/19.6 (West 1992).) Section 19.9 generally exempts "other public grounds owned by a municipal corporation and used exclusively for public purposes." 35 ILCS 205/19.9 (West 1992).

In 1990, the Du Page County board of review determined that the tax-exempt status of the subject property, which was being operated as a sanitary landfill within a larger area known as the Greene Valley Forest Preserve, remained unchanged for the 1989 tax year. The Department of Revenue (Department), however, subsequently denied the District's application for property tax exemption on the subject property.

Following the Department's denial, the Forest Preserve District of Du Page (District) applied for a formal hearing before the Department, contending that the property was being used for a tax-exempt purpose and should continue to be exempt. A formal hearing before a Department administrative law Judge (ALJ) was held, and the Department ultimately approved the ALJ's determination that the subject property was not tax exempt because its primary use was the operation of a landfill for profit by Waste Management of Illinois, Inc. Prior to 1989, the subject property had been exempt from taxation.

The District then filed a complaint for administrative review in the circuit court of Du Page County against the Department, the board of review of Du Page County, C. Gordon Shultes, Lisle Township assessor, Lisle Township, Naperville Community School District 203, and Waste Management of Illinois, Inc. (WMI). District 203 and Lisle Township counterclaimed against the supervisor of assessments of Du Page, the Du Page County board of review, the Du Page County clerk, and the Du Page County treasurer. The trial court dismissed the counterclaim, and, following further hearing, it dismissed the District's complaint and affirmed the Department's denial of the District's application. The District timely appeals, and WMI, although originally postured as a defendant, joins, as an appellant, in the District's appeal.

The principal issue germane to both the District and WMI's positionon appeal is whether the trial court erred in affirming the Department's determination that the subject property was not being used for a public purpose. WMI contends further that even if it were determined that the property was not used for a public purpose the operating agreement entered into between the District and WMI was merely a license and not a lease. Additionally, WMI contends that this appeal is moot because the 1989 tax assessment for the subject property was zero.

The following relevant facts are undisputed. The subject property is an approximately 16.8-acre parcel located within the 210 acre Greene Valley Forest Preserve. Since 1974 the property has been operated as a sanitary landfill under an agreement between the District, as owner of the property, and WMI.

The agreement recites that the District "desires the partial development of the Greene Valley Forest Preserve for scenic and recreational hill development through modification of the ground form using the techniques of sanitary landfill." The District expressly granted WMI the exclusive right and privilege to have ingress and egress to the subject property.

Additionally, WMI retained overall management of the landfill, and its operation was to be put in a separate division and cost center of WMI with an individual set of books. WMI's operating personnel were further required to conform to certain requirements as set forth by the District.

The agreement further provided that the District would receive compensation. WMI was obligated to pay to the District 10% of the amount charged by WMI for all waste material received and deposited during the first 10 years of the contract. For each additional two-year period, an additional 1% was to be added "to the preceding period's royalty." Additionally, the District would receive 25% of the amount received for the sale of material recovered from the waste stream.

Also contained in the record on appeal was a 1988-year-end statement of revenue and royalties for the Greene Valley landfill. For the year ending 1988, a "net revenue for royalty calculation" of $10,533,039.57 was shown. The District was paid $1,331,715.35 in royalty payments and the "landfill expense fund" showed $1,871,475.80 in remittances to the District. ...


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