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Allegis Realty Investors v. Novak

September 21, 2006

ALLEGIS REALTY INVESTORS ET AL., APPELLEES,
v.
JOHN LOTUS NOVAK, COUNTY TREASURER AND EX-OFFICIO COUNTY COLLECTOR OF DU PAGE COUNTY, ET AL., APPELLANTS.



The opinion of the court was delivered by: Justice Karmeier

Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, and Garman concurred in the judgment and opinion.

Justice Burke took no part in the decision.

OPINION

Plaintiffs, Allegis Realty Investors and other taxpayers from Du Page County, filed objections under section 23-10 of the Property Tax Code (35 ILCS 200/23-10 (West 1998)) to various taxes imposed in 1997 by several units of local government. Among the taxes challenged, and the only one at issue in this case, was the 1997 permanent road (hard-road) tax levied by Naperville Township Road District (the Road District). The Road District intervened in the case and moved for summary judgment. Its motion was granted, and the challenge to its 1997 hard-road tax levy was rejected.

Plaintiffs subsequently brought an interlocutory appeal pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). The appellate court reversed and remanded, concluding that there was a genuine issue of fact, precluding summary judgment, with respect to whether the statutory requirements for the tax levy had been satisfied. 356 Ill. App. 3d 887. The Du Page County treasurer and the Road District filed separate petitions with our court seeking leave to appeal. 177 Ill. 2d R. 315. We granted those petitions and consolidated them. While the matter was pending in our court, the General Assembly enacted amendatory legislation specifically validating the tax authorization methods challenged in this case. The primary issue now before us is whether this new legislation may be applied retroactively to validate the tax levy at issue here. For the reasons that follow, we hold that it can. The judgment of the appellate court is therefore reversed, the judgment of the circuit court granting summary judgment in favor of the Road District is affirmed, and the cause is remanded to the circuit court for further proceedings.

BACKGROUND

The Illinois Highway Code (605 ILCS 5/1-101 et seq. (West 1998), formerly Ill. Rev. Stat. 1977, ch. 121, par. 1-101 et seq.), authorizes local road districts to levy permanent-road taxes for the purpose of constructing and maintaining gravel, rock, macadam or other hard roads (see 605 ILCS 5/6-601 et seq. (West 1998)). Where a county is organized into townships, as Du Page County is, the township is considered to be and is called the road district for "all purposes relating to the construction, repair, maintenance, financing and supervision" of township roads, except in circumstances not present here. 605 ILCS 5/6-102 (West 1999). Accordingly, Naperville Township, which is located in Du Page County, is the Road District referred to in this case and the entity responsible for the hard-road tax levy involved in this appeal.

The Road District has levied hard-road taxes for many years, both before and after 1979. During that time, however, the statutory authorization schemes governing road district tax levies changed. Prior to 1979, the law limited authority to levy hard-road taxes to no more than five years. After the expiration of the five-year period, townships were required to reauthorize the levy at the annual township meeting or through a road district election. See Ill. Rev. Stat. 1977, ch. 121, pars. 6-601, 6-602. The Road District received authority for a hard-road tax levy in accordance with these provisions at Naperville Township's 1979 annual township meeting.

After the 1979 hard-road tax levy was approved, the General Assembly amended the law governing hard-road tax levies to repeal the five-year authorization limit. Effective January 1, 1980, authority to levy hard- road taxes, once obtained, would remain permanent until repealed by referendum. See Ceres One Corp. v. Naperville Township Road District, 343 Ill. App. 3d 382, 385 (2003).

Between April 1979 and February 1997, the Road District levied a hard-road tax every year without holding a new referendum for its reauthorization. Several objections were filed against the tax. Most were settled. The Road District did not, however, settle objections filed by a group of objectors which included Ceres One Corporation (see Ceres One Corp. v. Naperville Township Road District, 343 Ill. App. 3d 382 (2003)). That matter, which was addressed to the Road District's 1996 hard-road levy, remained pending when plaintiffs filed the objections underlying the present appeal.

As part of its challenge to the 1996 levy, Ceres One Corporation asserted that the 1979 authorization on which the 1996 tax levy was based had long since expired and that the statutory amendments eliminating the five-year authorization limit could not be applied retroactively to validate it. In light of that challenge, a decision was made by the Road District to seek authorization of the tax for 1997. Signatures were obtained from 50 registered voters in support of a petition to hold a referendum to obtain the necessary authorization. The signatures were collected in February of 1997, and the petition was received by the Road District's clerk on March 13, 1997. In accordance with statutory requirements, notice of the referendum was subsequently published in a newspaper of general circulation on March 26, 1997. The proposition was duly submitted for a vote at the township meeting on April 8, 1997, and passed. By a vote of 51 to 0, authorization for the tax was granted.

On November 13, 1998, plaintiffs filed a complaint in the circuit court of Du Page County objecting to various taxes levied by several county taxing districts in 1997 and seeking refunds of those taxes. Plaintiffs' Objection H specifically attacked the Road District's 1997 hard-road tax levy on the ground that the 1979 referendum authorizing the tax in question was void because proper notice was not provided per section 6-601 of the Illinois Highway Code (Ill. Rev. Stat. 1977, ch. 121, par. 6-601). The Road District was granted leave to intervene to dispute that objection.

While plaintiff's cause of action was pending in the circuit court, our appellate court entered judgment in the case arising from Ceres One Corporation's challenge to the Road District's 1996 hard-road tax levy. The appellate court's decision affirmed the judgment of the circuit court which had held the 1996 hard-road tax levy invalid. In the appellate court's view, the 1979 hard-road tax authorization, which served as the predicate for the 1996 tax levy, was subject to the five- year authorization contained in the statute at the time the 1979 levy was approved. That period had expired and no new authorization had been sought or granted. Although the General Assembly subsequently repealed the five-year limitation, the court noted that additional legislative action had the effect of partially restoring the five-year limitation. In the appellate court's view, that partial restoration applied to the 1979 hard-road tax. The statutory provision eliminating the five-year limitation applied only to levies approved after January 1, 1980, and could not be applied retroactively to the Road District's 1979 levy. Ceres One Corp. v. Naperville Township Road District, 343 Ill. App. 3d at 387.

The appellate court filed its opinion in Ceres One Corp. v. Naperville Township Road District on September 30, 2003. On January 27, 2004, the Road District filed a motion for summary judgment in this case with respect to plaintiffs' Objection H, which pertained to the 1997 hard-road tax levy. The Road District's motion contended that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law because, unlike the 1996 hard-road tax levy struck down in Ceres One Corp. v. Naperville Township Road District, the 1997 levy was not based on the original 1979 authorization. Rather, as outlined earlier in this opinion, the Road District had obtained new authorization for the levy through a properly called referendum at the annual township meeting held April 8, 1997.

Plaintiffs objected to the Road District's motion for summary judgment on the grounds that the 1997 referendum was invalid. Plaintiffs pointed out that while the proposition to approve the 1997 hard-road tax was presented as a measure to extend, reauthorize and reaffirm a hard- road tax levy already in existence, there was no valid hard-road tax levy then in existence. The original 1979 authorization had lapsed years earlier without being renewed, and the 1996 tax levy based on that authorization had been declared invalid. There being no valid existing hard-road tax, plaintiffs argued that the 1997 measure was, instead, an attempt to establish and increase township taxes. Such measures are governed by section 30-20(b) of the Township Code (60 ILCS 1/30-20(b) (West 1998)). That statute precludes electors at annual township meetings from establishing or increasing township taxes unless the proposal to take such action is supported by a petition containing the signatures of not less than 10% of the registered voters in the township. 60 ILCS 1/30-20(b) (West 1998). According to plaintiffs, the 50 signators to the petition submitted at the April 8 township meeting represented far less than 10% of Naperville Township's registered voters. The electors present at the annual township meeting therefore had no authority to approve the 1997 hard-road tax levy.

Plaintiffs argued that the 1997 hard-road tax levy was also fatally infirm because the notice requirements of section 6-601(a) of the Illinois Highway Code (605 ILCS 5/6-601(a) (West 1998)) were not satisfied. Under that statute, notice by publication is not sufficient. Where propositions for or against hard-road taxes are to be taken up at an annual township meeting, notices that the proposition will be voted upon must be posted in at least 10 of the most public places in the town at least 10 days prior to the meeting. 605 ILCS 5/6-601(a) (West 1998). Plaintiffs contended that the Road District had failed to show that the requisite notice had, in fact, been given in this case.

In reply to plaintiffs' objections, the Road District argued that plaintiffs were improperly attempting to raise new objections to the 1997 tax levy beyond those contained in their original pleadings. The Road District also disputed plaintiffs' arguments on the merits. First, it contended that section 30-20(b) of the Township Code (60 ILCS 1/30-20(b) (West 1998)) did not apply to the permanent-road tax because, contrary to plaintiffs' characterization, the referendum in question reauthorized an existing tax. It did not establish or increase a tax rate. Second, the Road District argued that it had, in fact, complied with the notice requirements set forth in section 6-601(a) (605 ILCS 5/6-601(a) (West 1998)). In support of that argument, the Road District submitted a fax from the township clerk to the township attorney listing the places where the notices were posted. Finally, the Road District urged the circuit court to reject a request submitted by plaintiffs to permit further discovery prior to disposition of the motion for summary judgment.

Following a hearing, the circuit court found the Road District's arguments to be meritorious and entered summary judgment in favor of the Road District and against plaintiffs with respect to plaintiffs' objections to the 1997 hard-road tax.*fn1 In so doing, the court made an express written finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d ...


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