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Ceres One Corp. v. The Naperville Township Road District

September 30, 2003

CERES ONE CORPORATION; ABN AMRO SERVICES COMPANY, INC.; ADVENTIST HEALTH RESOURCES, INC.; ANVIL OFFICE CENTER (DAVID MCCOY AND ASSOCIATES); BABSON BROTHERS COMPANY; BANK ONE; BEACON HILL; BERNARD M. SUSMAN AND COMPANY, INC.; BRUCHER MACHINING, INC.; CALAMOS PROPERTY HOLDINGS, INC.; CATHOLIC ORDER OF FORESTERS; CEP INVESTORS VI LP; CHICAGO TITLE AND TRUST 1099828; CIMAR CORPORATION; COOKE, RAYMOND, COLLEGE SQUARE MANAGEMENT; COPLEY VENTURES, INC.; THE DONMAR PARTNERS, INC.; DUPAGE PROPERTIES VENTURE; EASTMAN KODAK COMPANY; ECD COMPANY; EVERPURE, INC.; FIRST BANK OF SCHAUMBURG TRUST 96-1295; FIRST CHICAGO BUILDING CORPORATION; 437 WRIGHTWOOD JOINT VENTURE; GARY WHEATON BANK TRUST 6621 (LIBERTY PROPERTIES PS); GENERAL BINDING CORPORATION; GLENDALE JOINT VENTURE; HARRIS BANK HINSDALE L-1212; HARRIS BANK HINSDALE L-2525; HARRIS BANK NAPERVILLE 4732; HARRIS BANK NAPERVILLE 4736; HARRIS BANK NAPERVILLE 4804; HBH TRUST L1769; HBH TRUST L3311; HINSDALE SANITARIUM - HOSPITAL; HUNTINGTON SPRINGS APARTMENTS; HUNTINGTON APARTMENTS I; HUNTINGTON APARTMENTS II; J.C. PENNEY COMPANY, INC.; KLEFSTAD COMPANIES, INC.; KOHL'S DEPARTMENT STORE NUMBER 65; KOHL'S DEPARTMENT STORE NUMBER 77; KOHL'S ILLINOIS, INC.; MICHAEL, AND PERLA KOHOUTEK; LAGRANGE BANK AND TRUST 7246; METROPOLITAN LIFE (NAPER/DEIHL); MIDAMERICA FEDERAL SAVINGS BANK; ANTHONY MOUREK; MS MANAGEMENT SERVICES LP (MET LIFE -COMMERCE PLAZA - METRO WEST); NATURAL GAS PIPELINE; NORCOR AUTOCARE ASSOCIATES, L.P.; NORCOR INVESTMENTS, INC., LLC; NORTH PARK MALL (MET LIFE); OHIO POLICE AND FIREMAN FUND; OFFICE PARK OF HINSDALE; OLD KENT BANK TRUST 94-1252; PARK PLACE OF NAPERVILLE; PONDS OF PEMBROKE; PROGRESSIVE PROPERTIES; SATHER BUILDERS (OLGA BANCROFT); SATHER AND SON (OLGA BANCROFT); SEARS ROEBUCK AND COMPANY; SIDCOR WESTMONT ASSOCIATES; 619 PARTNERS; WILLIAM L. SMITH, JR.; TIRE AND AUTO HOLDINGS, INC.; TRISIS TRUST; USGI, INC.; WINDSOR PARK MANOR OBJECTORS-APPELLEES,
v.
THE NAPERVILLE TOWNSHIP ROAD DISTRICT, INTERVENOR-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 97--TO--0004 Honorable Edward R. Duncan, Jr., Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley

UNPUBLISHED

Ceres One Corporation and others (objectors) filed tax objections in the circuit court of Du Page County challenging the 1996 tax levy of the Naperville Township Road District (District). Objectors brought nine objections labeled (A) through (I). The trial court granted objectors' motion for summary judgment on objection (H), which challenged the portion of the 1996 levy designated for the "permanent road fund." The District appeals, and we affirm.

In 1996, the District levied a general tax at a rate of $.01072 on every $100 of assessed valuation. Part of this general tax was specifically designated for the "permanent road fund" and was purportedly authorized by a special hard road tax levy that was approved by the District in 1979 and authorized an annual tax for road improvements. The record shows that a levy for a special hard road tax indeed was approved by referendum in the District on April 10, 1979, pursuant to the provisions of the Illinois Highway Code (Code) (Ill. Rev. Stat. 1977, ch. 121, par. 1--101 et seq.).

Objectors argued before the trial court that the 1979 levy was invalid, and so, by extension, was the 1996 road tax. On objectors' motion for summary judgment, the trial court found several of the objections meritorious and declared the 1996 road tax invalid. In their appellees' brief, objectors raise an argument not brought before the trial court, viz., that the 1979 levy expired by force of law five years after it was approved, and thus the 1996 tax was ultra vires. In light of the fact that the five-year limitation was repealed shortly after the 1979 tax levy was approved, we directed the parties to address the specific question of whether the repeal applied retrospectively to the 1979 levy so as to eliminate the need to renew the levy after five years. In its supplemental brief, the District claims that objectors' new argument is waived because it was not raised in the trial court. Nonetheless, we may affirm the judgment of the trial court on any ground appearing in the record, regardless of whether that ground was relied upon by the trial court or whether its reasoning was correct. Hawkes v. Casino Queen, Inc., 336 Ill. App. 3d 994, 1005 (2003). We hold that, because the 1979 hard road tax levy expired five years after it was passed and the District never renewed it, the 1996 road tax was ultra vires.

At the time the 1979 levy was approved, section 6--601 of the Code (Ill. Rev. Stat. 1977, ch. 121, par. 6--601) provided:

"On the petition of 25 legal voters of any road district to the district clerk he shall, when giving notice of the time and place for holding the next annual town meeting or road district election, also give notice that a vote will be taken at such election or meeting for or against an annual tax not to exceed .167% of the value of the taxable property, as equalized or assessed by the Department of Local Government Affairs, for the purpose of constructing or maintaining gravel, rock, macadam or other hard roads, or for improving, maintaining or repairing earth roads by draining, grading, oil treating or dragging. Such petition shall state the location and route of the proposed road or roads, and shall also state the annual rate per cent not exceeding .167% of the value, as equalized or assessed by the Department of Local Government Affairs, and the number of years not exceeding 5 for which such tax shall be levied." (Emphasis added.)

Section 6--602 of the Code provided:

"If a majority of all the ballots cast at such election on such proposition are in favor of such special tax, then the township board of auditors or highway board of auditors, as the case may be, or the highway commissioner in a county not under township organization of the road district shall levy an annual tax in accordance with such vote and certify the same to the county clerk. *** The length of time for which the special tax may continue however, may not exceed 5 years." (Emphasis added.) Ill. Rev. Stat. 1977, ch. 121, par. 6--602.

Within five years after the 1979 special hard road tax levy was approved, the legislature adopted Public Acts 81--779 and 81--821, both effective January 1, 1980. Public Act 81--779, which was approved on September 16, 1979, deleted the above italicized language from sections 6--601 and 6--602, thus removing the five-year limitation. See Ill. Rev. Stat. 1979, ch. 121, pars. 6--601, 6--602. Public Act 81--779 also added section 6--602.1 (Ill. Rev. Stat. 1979, ch. 121, par. 6--602.1), which stated in relevant part:

"Any Road District voting after April 3, 1979 to levy a special tax for most purposes under the provisions of this Section shall establish such annual tax on a permanent basis unless on the Petition of 25 legal voters of any Road District to the District Clerk."

Public Act 81--821, approved three days after Public Act 81-- 779 on September 19, 1979, amended section 6--602 to clarify that, once passed, a special hard road tax levy remains in effect until repealed by the road district. See Ill. Rev. Stat. 1979, ch. 121, par. 6--602 ("Such special tax shall remain in effect until repealed by the legal voters of the road district as provided in Section 6--617 of the Code [(Ill. Rev. Stat. 1979, ch. 121, par. 6--617)]"). Public Act 81--821 also added section 6--617, which stated in relevant part:

"To repeal the special tax, once levied, 25 legal voters of the road district shall petition the district clerk. Such petition shall contain a request for an election. The district clerk shall then, when giving notice of the time and place for holding the next road district election, also give notice that a vote will be taken at such election for or against the repeal of the annual tax ***." Ill. Rev. Stat. 1979, ch. 121, par. 6--617.

Some months later, on September 26, 1980, Public Act 81--1509 was approved and made effective. Public Act ...


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