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J. Norman Young, As Trustee of the J. Norman Young Trust, Dated September 16 v. Christine J. Johnson

December 29, 2011

J. NORMAN YOUNG, AS TRUSTEE OF THE J. NORMAN YOUNG TRUST, DATED SEPTEMBER 16,
AND AS SUCCESSOR TRUSTEE OF THE NADYNE H. YOUNG TRUST, DATED SEPTEMBER 16, 1993,
PLAINTIFF-APPELLANT,
v.
CHRISTINE J. JOHNSON, DE KALB COUNTY COLLECTOR; SHARON HOLMES, DE KALB COUNTY CLERK; KATHLEEN HOLLONBECK, D/B/A KGH INVESTMENTS; DOUGLAS JOHNSON AND SUSAN JOHNSON, D/B/A TAX LIEN INVESTMENTS;
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of De Kalb County. 1993, and THE TOWN OF CORTLAND, Honorable Melissa S. Barnhart, Judge, Presiding. No. 10-MR-122

The opinion of the court was delivered by: Presiding Justice Jorgensen

PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Bowman and Hutchinson concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, J. Norman Young, appeals the dismissal under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2010) (affirmative defense)) of his complaint. For the following reasons, we affirm the dismissal.

¶ 2 I. BACKGROUND

¶ 3 This is plaintiff's third appeal before this court concerning the imposition and collection of a special service area tax (SSA tax) imposed upon property known as the Young Farm. See Young v. Holmes, No. 2-09-0151 (modified upon denial of rehearing July 9, 2010) (unpublished order under Supreme Court Rule 23) (affirming the trial court's dismissal of plaintiff's challenge to the constitutionality and validity of the SSA); Young v. Johnson, No. 2-10-0020 (2010) (unpublished order under Supreme Court Rule 23) (remanding plaintiff's tax objection challenge to 2008 SSA taxes on limited grounds such as technical errors or miscalculations-not constitutionality and validity). To recap this court's prior rulings, we found the SSA tax to be lawful overall, but we allowed plaintiff to challenge any miscalculations through tax objection proceedings.

¶ 4 Plaintiff, along with 11 other owners, planned to develop the farm and the surrounding area into a residential subdivision. The proposed development needed a sewage treatment facility, which would be paid for with the SSA tax. Each owner would pay for the treatment facility based on how many lots each planned to develop (at a cost of $8,000 per lot for access to the treatment facility). Because plaintiff alone planned to develop over 500 lots, his share of the SSA tax was quite large, totaling over $4 million to be paid in amounts of approximately $270,000 per year over a number of years. Initially, the new treatment facility would be funded by the sale of special revenue bonds, structured under a trust indenture between the Town of Cortland and Wells-Fargo Bank. The bonds would be paid for from revenues generated by the SSA tax. Plaintiff purchased $420,000 in bonds issued in conjunction with the SSA, putting him in the unique position of being both an owner of property subject to the SSA tax and a bondholder who would receive a portion of the SSA tax proceeds.

¶ 5 Due to economic conditions, such as the decline in the housing market, the residential development was never completed. However, plaintiff was still obligated to pay the SSA tax for the treatment facility (which was completed). Plaintiff paid the 2008 general real estate taxes for his undeveloped lots (approximately $2,000), but he did not pay the 2008 SSA tax for his undeveloped lots (approximately $286,867).

¶ 6 As a result of plaintiff's failure to pay the 2008 SSA tax, the county collector pursued the statutory remedy of a tax sale. The statute authorizing SSA taxes states that "[t]he lien and foreclosure remedies provided in Article 9 of the Illinois Municipal Code shall apply upon non-payment of the special tax." 35 ILCS 200/27-75 (West 2008). The Illinois Municipal Code (the Code), article 9, division 2, under which the county levied the SSA tax, states:

"When the ordinance under which a local improvement is ordered provides that the improvement shall be made wholly or in part by specialtaxation of contiguous property, that special tax shall be levied, assessed, and collected, as nearly as may be, in the manner provided in the section of this Division 2 providing for the mode of making, assessing, and collecting special assessments." (Emphasis added.) 65 ILCS 5/9-2-41 (West 2008). Under division 2, delinquent special assessments or special taxes may be included in the county collector's annual tax sale. The county collector designates a day on which an application shall be made to the court for an order of sale (65 ILCS 5/9-2-83 (West 2008)), advertises the sale of delinquent taxes (65 ILCS 5/9-2-84 (West 2008)), and mails notice to the delinquent property owners (65 ILCS 5/9-2-88 (West 2008)). Thereupon, the "general revenue laws" of the state, i.e., the Property Tax Code (35 ILCS 200/1-1 et seq. (West 2008)), apply to the unpaid special taxes and to unpaid general taxes, with respect to the annual tax sale. 65 ILCS 5/9-2-97 (West 2008); see also People v. Taylorville Sanitary District, 371 Ill. 280, 283 (1939) (legislature intended collection of special taxes to be enforced under general revenue law); People v. Forest Park Methodist Church, 408 Ill. 431, 434 (1951) (same). Under this authority, county officials sold the 2008 SSA tax on the farm to a tax lien investment business.

¶ 7 In August 2010, plaintiff filed a three-count complaint, challenging the sale of the 2008 SSA tax. In count I, plaintiff sought a declaratory judgment that selling the 2008 SSA tax was not a remedy available to the county in the face of plaintiff's admitted nonpayment of the SSA tax. Plaintiff insisted that the Town of Cortland was required, under article 9, division 3, of the Code, to foreclose on the tax delinquent parcels. Skipping to count III, which is closely related to count I, plaintiff sought a writ of mandamus to compel the Town of Cortland to foreclose on the tax delinquent parcels. In count II, plaintiff sought an injunction on the sale of SSA taxes based on a partial payment of the total tax obligation (i.e., payment of the general real estate taxes). The trial court dismissed the complaint and denied a motion to reconsider. This appeal followed.

¶ 8 II. ANALYSIS

ΒΆ 9 Plaintiff challenges the section 2-619 dismissal of his complaint. We review de novo the trial court's dismissal. Van Meter v. Darien Park ...


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