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Hawkins v. Far South CDC, Inc.

Court of Appeals of Illinois, First District, Second Division

November 26, 2013

RAYMOND E. HAWKINS, Individually and as a Representative of All Owners of Record in Special Services Area 45, Plaintiff-Appellant,
v.
FAR SOUTH CDC, INC., THE CITY OF CHICAGO, MARIA PAPPAS, in Her Capacity as Cook County Treasurer, Defendants-Appellees.

Held [*]

The dismissal of plaintiff’s amended complaint challenging the validity of an ordinance creating a special service area under article 27 of the Property Tax Code on the ground that the action was not brought under the provisions of the Code was reversed and the cause was remanded for further proceedings, since plaintiff’s declaratory judgment action was proper under the circumstances.

Appeal from the Circuit Court of Cook County, No. 11-CH-22804; the Hon. Alfred J. Paul, Judge, presiding.

Law Offices of John S. Xydakis, P.C., of Forest Park (John S. Xydakis, of counsel), for appellant.

Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and J. Mark Powell, Assistant Corporation Counsel, of counsel), for appellees.

Panel PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion. Justices Harris and Pierce concurred in the judgment and opinion.

OPINION

QUINN PRESIDING JUSTICE

¶ 1 The question before this court on appeal is whether a challenge to an ordinance creating a special service area (SSA) under article 27 of the Property Tax Code (Code) (35 ILCS 200/art. 27 (West 2010)) must be brought pursuant to the provisions of the Code. The circuit court in this case held that it must and dismissed plaintiff Raymond Hawkins' first amended class action complaint (amended complaint) pursuant to section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 2010)) on the grounds that it was not brought within the time limits for a tax objection under the Code. On appeal, plaintiff contends that the circuit court erred in dismissing his amended complaint pursuant to the provisions of the Code where SSA 45 is "unauthorized by law." For the following reasons, we reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 The record shows, in relevant part, that on December 2, 2009, the Chicago city council enacted an ordinance creating SSA 45 within the boundaries of "both sides of Halsted Street, between the north side of 115th Street and the south side of 99th Street; both sides of 103rd Street, between Morgan Street and Lowe Avenue; and along Vincennes Avenue, between North [sic] 115th Street and 111th Street." The ordinance authorized special services for the area including but not limited to: "recruitment of new businesses to the Area, rehabilitation activities, maintenance and beautification activities, security, coordination or promotional and advertising activities, strategic planning for the Area, and other technical assistance activities to promote commercial and economic development." To produce the revenue required to provide these services, it also authorized the levy of a "Services Tax" upon the taxable property within the area in an amount "not to exceed an annual rate of three percent (3%) of the equalized assessed value of the taxable property within the Area."

¶ 4 On June 27, 2011, plaintiff, on behalf of all owners of record within SSA 45, filed a two-count class action complaint in the chancery division of the circuit court of Cook County against Far South CDC, Inc. (Far South), the City of Chicago (City), and Maria Pappas (Treasurer). He alleged that the ordinance creating SSA 45 caused his and other property owners' real estate taxes to "skyrocket" and complained that "SSA 45 is duplicative of the services the City taxes for, and should be providing to, its residents." In count I, plaintiff sought to void the ordinance creating SSA 45 on two grounds. First, he claimed that the application for SSA 45 was not signed by an owner of record within the proposed special services area as required by section 27-20 of the Code (35 ILCS 200/27-20 (West 2010)). Second, he claimed that the ordinance was not recorded within 60 days after the date the ordinance was adopted as required by section 27-40 of the Code (35 ILCS 200/27-40 (West 2010)). In count II, alternatively, plaintiff raised a tax objection to the 2009 taxes paid by owners of record in SSA 45. In his prayer for relief, plaintiff requested, inter alia, an order that the ordinance creating SSA 45 was void, removal of the levy from tax bills, a refund of all funds collected under SSA 45, a declaration that the challenged tax rate was illegal or void, and a refund of any taxes adjudged to be illegal or void.

¶ 5 On July 22, 2011, the City filed a motion to transfer the case from the chancery division to the county division on the grounds that plaintiff's complaint was a "tax objection" under the Code and therefore properly heard in the county division. Plaintiff then filed a motion for class certification and a first amended complaint (amended complaint) in which he retained the count seeking to void the ordinance creating SSA 45, but omitted the tax objection count. In the prayer for relief of the amended complaint, plaintiff sought an order that the ordinance creating SSA 45 was void and did not request a refund of his taxes.

¶ 6 On October 24, 2011, the circuit court, after hearing argument, transferred the case to the county division. About that time, all three defendants also filed combined motions to dismiss plaintiff's amended complaint pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2010)). Each asserted, inter alia, that the amended complaint should be dismissed pursuant to section 2-619 because plaintiff did not timely file his claim under the Code. The City and Treasurer attached to their respective motions the affidavit of Patrick Nester, the director of operations in the office of the Cook County Treasurer. Nester averred that the second-installment real estate taxes for the 2009 tax year were due on December 13, 2010, and that penalties began to accrue for the second-installment real estate taxes on December 14, 2010.

ΒΆ 7 On May 1, 2012, the court heard argument on defendants' motions to dismiss. At the hearing, the City argued that "no matter what label you put on this case, it's a tax rate objection" because "[t]he essential allegations are that some part of the 2009 tax levy was illegal, which made the levy improper and the plaintiffs' taxes too high." Further, the City argued, it was "a legally defective rate objection" because "it was filed outside the ...


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