DON A. PEEPLES et al., Plaintiffs-Appellees, v. THE VILLAGE OF JOHNSBURG et al., Defendants-Appellants.
No. 2-09-0516
Second District
July 9, 2010
333
Michael J. Smoron, Kevin G. Costello, and Gregory P. Preves, all of Zukowski, Rogers, Flood & McArdle, of Crystal Lake, for appellants.
Don A. Peeples, Josephine M. Peeples, Christopher L. Morris, Colette D. Zanko, and Ron W. Zanko, all of Johnsburg, appellees pro se.
JUSTICE SCHOSTOK delivered the opinion of the court:
This case involves an ordinance enacted by the defendants (collectively, the Village), establishing Special Service Area 23 in the Village of Johnsburg. After the Village proposed the special service area, the plaintiffs and other residents of the area (Objectors) filed an objection petition. The Village determined that the Objectors had not collected enough signatures to meet the statutory threshold to veto the special service area (see
In 2007, the Village identified a certain area that it wished to designate as Special Service Area 23, in order to create a wastewater treatment system and facility. The Village contended that waste leaching from septic fields in that area was contributing to the deterioration of the Fox River. On June 5, 2007, the Village approved an ordinance proposing the special service area. The project was to be financed with special tax bonds that would result in each resident of the special service area paying additional taxes each year for 20 years. On June 9, 2007, the Village published notice of the proposal and announced a public hearing to be held on June 25, 2007. The Village also mailed notices to taxpayers living within the proposed special service area.
The Village held public hearings on the proposal on June 25 and 27, 2007. On August 22, 2007, the Objectors submitted a petition containing the signatures of owners of record and electors in the special service area who opposed the proposal. Section 27-55 of the Property Tax Code (Code) (
“§27-55. Objection petition. If a petition signed by at least 51% of the electors residing within the special service area and by at least 51% of the owners of record of the land included within the boundaries of the special service area is filed with the municipal clerk *** within 60 days following the final adjournment of the public hearing, objecting to the creation of the special service district, *** the district shall not be created ***.”
Section 27-55 defines “electors” as all “resident[s] of the special service area registered to vote.”
After receiving the petition, the village clerk reviewed the signatures to determine whether the statutory 51% thresholds were met. In addition, the clerk obtained from the McHenry County
Thereafter, the plaintiffs filed suit, seeking a declaration that Ordinance No. 07-08-11 was void pursuant to section 27-55 and an injunction preventing the Village from proceeding with the special service area plans. After a seven-day bench trial, the trial court found that there were only 1,210 owners of record within the special service area, that 51% of that number was 617, and that the Objectors had collected 619 valid signatures. As to electors, the trial court found that there were only 946 electors within the special service area, that 51% of that number was 483, and that the Objectors had collected 489 valid signatures. Thus, as the Objectors had collected more than the statutory threshold for both electors and owners, Ordinance No. 07-08-11 was void. The Village filed a timely notice of appeal.
Preliminary Issues
On appeal, the Village raises several arguments. In evaluating these arguments, we note that the plaintiffs did not retain counsel on appeal. Instead, they appeared pro se and filed five identical briefs containing argument and citations to the record on appeal, but no citations to legal authority. We take these briefs as we find them and do not make special allowances for the fact that the plaintiffs are pro se. “While reviewing courts are open to all persons who seek redress of their grievances, a party‘s decision to appear pro se does not relieve that party from adhering as nearly as possible to the requirements of the rules of practice enunciated by our supreme court.” McCutcheon v. Chicago Principals Ass‘n, 159 Ill. App. 3d 955, 960 (1987).
The Administrative Review Law governs “every action to review judicially a final decision of any administrative agency” where the statute creating the agency expressly adopts either the Administrative Review Law or its predecessor, the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 262 et seq.).
There is little law on the issue of the type of review to be given to a municipality‘s decision to proceed with an ordinance establishing a special service area despite the filing of an objection petition. The counting of electors, owners of record, and signatures does not appear to us to be inherently either a quasi-judicial or administrative task, or a legislative task. Although the Village cites case law stating that zoning decisions about special use permits are quasi-judicial or administra-
The structure of the special service area statute supports the trial court‘s decision here to examine the sufficiency of the Objectors’ signatures as an initial matter, without deferring to the Village‘s conclusions or limiting the evidence to be considered. The sections of the Code relating to special service areas do not provide for any particular procedure for review of a special service area proposal and objections thereto. See
The Village raises a second issue regarding the trial court‘s conduct of the trial, complaining that the trial court first admitted, but then struck, two of its exhibits. Defendants’ Exhibit 33 was a collection of deeds and other property records that the Village contended both supported its initial determination that there were 1,240 owners of record within the special service area and established that there were an additional 23 owners of record who had not been counted in the village clerk‘s initial determination. Defendants’ Exhibit 34 was a summary of Exhibit 33. The village clerk testified that the exhibits contained updated and complete documentation relating to 833 parcels that she determined were within the special service area. The trial court asked her whether the exhibits contained any documentation relating to parcels that were not included in defendants’ Exhibit 23 (the list of owners as determined by her at the time she evaluated the Objectors’ petition). The village clerk stated that she had not numbered the parcels in Exhibit 23 and therefore did not know whether there were any differences in the parcels included in each exhibit. On the penultimate day of trial, the Village moved to admit Exhibits 33 and 34, and the plaintiffs stated that they would agree to the exhibits’ admission subject only to possible objections if any of the specific deeds had not previously been produced to them, and they said that the parties could probably work out a stipulation of disputed and undisputed deeds. The trial court admitted the exhibits subject to any such specific objections. The next day, however, the plaintiffs raised an overall objection to the admission of the two exhibits on the basis of “irrelevancy,” arguing that both they and the Village had relied on 1,240 as the total number of owners in evaluating the sufficiency of the Objectors’ petition. The trial court agreed that the exhibits were irrelevant, because “it is beyond what the Village relied on and what anyone relied on.” It also noted that the village clerk had
The determination of whether evidence is admissible is within the sound discretion of the trial court, and we will not reverse that determination unless there has been a clear abuse of that discretion. People v. Sutton, 349 Ill. App. 3d 608, 615 (2004). A trial court abuses its discretion when its ruling is arbitrary, fanciful, or unreasonable or where no reasonable person would take the view adopted by the trial court (People v. Anderson, 367 Ill. App. 3d 653, 664 (2006)), or where its ruling rests on an error of law (Cable America, Inc. v. Pace Electronics, Inc., 396 Ill. App. 3d 15, 24 (2009)). In this case, it is undisputed that the exhibits at issue were admissible in the sense that they were not hearsay and that a proper foundation had been laid for their admission. The trial court reversed its initial admission of the exhibits on the ground that they were “irrelevant” because they were not relied on by the Village before it adopted Ordinance No. 07-08-11. However, the trial court permitted the plaintiffs to offer a substantial amount of evidence that was not presented to the Village before it adopted Ordinance No. 07-08-11. The trial court did not err in admitting this evidence, because, as we concluded above, the trial court was not reviewing the Village‘s findings but, rather, was determining as an initial matter whether the Objectors’ petition contained the signatures of 51% of the electors and owners of record in the special service area as of June 25, 2007, and the plaintiffs’ new evidence was relevant to the determination of this issue. In re A.W., 231 Ill. 2d 241, 256 (2008) (“Evidence is relevant if it tends to prove a fact in controversy or render a matter in issue more or less probable“). By the same token, however, the Village‘s new evidence (specifically, Exhibits 33 and 34) was equally relevant to show the total number of owners of record of parcels within the special service area. The fact that evidence was not relied on by the Village in deciding to adopt Ordinance No. 07-08-11 cannot be used to bar the admission of the Village‘s evidence where that fact was not used to bar the admission of similar evidence proffered by the plaintiffs. We find that the trial court‘s decision to reverse the admission of defendants’ Exhibits 33 and 34 was arbitrary in light of its acceptance of similar evidence offered by the plaintiffs and was therefore an abuse of discretion.
Sufficiency of the Objectors’ Petition
We turn to the question of whether the Objectors obtained enough signatures to veto the establishment of the special service area and render Ordinance No. 07-08-11 void. The Objectors bore the burden
Electors
We begin by reviewing the trial court‘s conclusion that the Objectors’ petition contained the signatures of at least 51% of the “electors residing within the special service area,” that is, the “resident[s] of the special service area registered to vote.”
In admitting and considering this evidence, the trial court erred as a matter of law. The statute refers to electors as those who were registered to vote on the date of the public hearing. Section 27-55 contains no further definition of “electors” or “registered voters.” However, the General Assembly has decided that the meaning of these terms as used in any statute is supplied by section 3-1.2 of the Election Code (
“For the purpose of determining eligibility to sign *** a petition proposing a public question the terms ‘voter‘, ‘registered voter‘,
*** [and] ‘elector‘, *** as used in this Code or in another Statute shall mean a person who is registered to vote at the address shown opposite his signature on the petition ***.” 10 ILCS 5/3-1.2 (West 2006).
Thus, by statute, the total number of “electors” in a designated area such as Special Service Area 23 is the same as the total number of persons registered to vote at addresses in that area. See
Accordingly, the trial court erred in considering the testimony and affidavits regarding persons on the list of registered voters who may have moved out of the special service area and in adjusting the Village‘s total downward as a result. Although the Election Code does permit people who have moved out of the district to be removed from the list of registered voters through the use of affidavits submitted by other registered voters, the affidavits and testimony submitted by the plaintiffs did not comply with the required procedure for such removal. Instead, under the Election Code, removal may be accomplished only by following a specified procedure, which includes the submission of a particular form of affidavit to the county clerk; notification of the proposed removal mailed by the clerk to the registered voter whose removal is sought, along with a demand to appear at a specified date and time and show cause why the removal should not proceed; and the appearance of the person seeking the removal, before the clerk on that specified date, to show cause why removal is proper.
We note that, although section 27-55 also states that the relevant electors are those “residing within the special service area,” this residency requirement is itself included in the Election Code‘s requirements to register to vote in that area. Thus, by law, anyone who is a registered voter in a given area is also presumed to be a resident of that area, as explained in Shapiro v. Regional Board of School Trustees, 116 Ill. App. 3d 397, 407-08 (1983). In that case, the plaintiffs filed a petition to detach a certain area from a school district. The school
“The problem here is that plaintiffs attempt to read ‘registered voter’ and ‘residing in the detachment area’ as two separate and unrelated tests. They then argue that they are only concerned with the latter prong of the test, and assert that the Election Code is inapplicable thereto. *** [P]laintiffs sought to remove names from the official register under the guise of determining who ‘resided in’ the detachment area. However, that official register tells them who resides in the area, because residency is one of the requirements of registration. If plaintiffs wish to challenge that official registry, they must do so in the manner provided by statute, i.e., section 4-12 of the Election Code [(Ill. Rev. Stat. 1979, ch. 46, par. 4-10 (now see
10 ILCS 5/4-12 (West 2006)))].” Shapiro, 116 Ill. App. 3d at 407-08.
It is undisputed that, in this case, the Objectors did not apply to the county clerk to remove from the list of registered voters those persons whom they believed had moved out of the special service area, and the county clerk did not remove any names from the registered voter list between the public hearings and the Village‘s adoption of Ordinance No. 07-08-11. Thus, the trial court erred in deducting from the total number of electors the 62 persons who, according to the plaintiffs’ witnesses, had moved.
Inasmuch as the Objectors did not identify anyone the Village counted as an “elector” who was not in fact listed as a registered voter in the special service area, the Village‘s total of 1,014 electors was the relevant starting point for determining whether the Objectors had obtained the signatures of at least 51% of the total number of electors. The Village conceded that two of the persons listed were dead and should not have been counted in the total. The trial court also found that three electors were listed at addresses that were not within the special service area, and the Village has not contested this finding on appeal. Thus, the total number of electors in the special service area was 1,009. The trial court found that the Objectors had gathered
Owners of Record
In order to successfully veto the proposed special service area, the Objectors needed to obtain the signatures of both 51% of the electors and 51% of the owners of record, and so their failure to get the required number of electors’ signatures means that they cannot prevail in their suit seeking a declaration that Ordinance No. 07-08-11 is void. We acknowledge that the margin of defeat on the number of electors’ signatures is narrow, however, and thus we also address the issue of whether the Objectors obtained the necessary number of signatures of owners of record.
In its brief, the Village identified several instances in which, it contended, the trial court erred in its calculations and should not have reduced the total number of owners of record, or should have reduced the number of signatures that it accepted as valid. In reviewing the trial court‘s determinations, we will not reverse unless they are against the manifest weight of the evidence; that is, unless “the opposite conclusion is clearly evident or the finding is arbitrary, unreasonable, or not based in evidence.” Samour, 224 Ill. 2d at 543. However, on all of the Village‘s contentions of error relating to owners of record, the plaintiffs’ response brief contains no opposition or dispute. Rather, the plaintiffs simply state that they “concur” with the trial court‘s reasoning. Thus, the plaintiffs have forfeited their opportunity to raise any argument related to these alleged errors. 210 Ill. 2d R. 341(h)(7). Nevertheless, we have conducted our own review of the record as to each specific alleged error, and we find in the Village‘s favor only where the record confirms the Village‘s argument.
The trial court took the Village‘s initial total of 1,240 owners of record as its starting point. We do the same: although the trial court wrongly excluded the defendants’ Exhibits 33 and 34 (which purportedly showed that there were actually 1,263 owners of record), the Village has not argued on appeal that we should use this higher number in our calculations, and thus we begin, as the trial court did, with 1,240 owners of record. The trial court then made the following deductions: 10 properties that were duplicates of other listings according to their property index numbers (PINs); 17 properties that were owned by land trusts, corporations, or living trusts, which properties the Village listed as having more than one owner; and 3 “unknown” proper-
On appeal, the Village challenges two aspects of this calculation. First, as to the three “unknown” properties, the Village contends that the trial court erred in stating that they had no owner of record. There were PINs for these properties, and it is undisputed that they are within the special service area. (In one of their exhibits, the plaintiffs listed these properties as being among the allegedly “unbuildable” properties in the special service area.) The Village also contends that a subdivision plat contained in Exhibit 33 shows the properties as being owned by the subdivider, Peter Niesen. As noted, the plaintiffs did not respond to this argument. Our own review of the record shows that these properties are listed in the defendants’ Exhibits 7 and 23 (which were admitted into evidence) with the owner of record as “Niesen, Peter/Subdivider.” The village clerk testified that although the addresses of these properties were unknown, the owner (based on records from the county treasurer‘s office) was listed. The record establishes that these three properties each had an owner of record and that the trial court erred in reducing the total number of owners by three for these properties.
Second, the trial court subtracted 17 owners on the basis that the Village had improperly counted these properties as having more than one owner, but they were owned by land trusts, corporations, or living trusts. Section 27-55 provides that “[I]and owned in the name of a land trust, corporation, estate or partnership shall be considered to have a single owner of record.”
The Village contends that the trial court‘s ruling and its deductions relating to land held by trusts resulted in errors in the total number of owners of record with regard to two parcels, the Diedrich property (PIN 10—18—102-001) and the property at 2125 Fairview (PIN 09-13-477-028). The Village initially believed, based on the county treasurer‘s records, that the Diedrich property was owned by a single trust. It therefore counted the property as having only one
The property at 2125 Fairview was co-owned by two living trusts, the Thiessen Trust and the Hurst Trust, and thus should have been counted as having two owners of record. Moreover, the Village asserts that the trial court accidentally compounded its error in deducting one owner of this property, because the Village had inadvertently listed the property as having only one owner to begin with, and thus the trial court‘s action in deducting one owner meant that no owners were counted for the property.
As to this second point, it is evident from the record that the Village is correct that, as a result of the trial court‘s ruling, the property at 2125 Fairview was erroneously counted as having no owners. It is uncontested that the property should be listed as having at least one owner. We therefore add the one owner mistakenly deleted to the total number of owners of record. The Village‘s first point is also sound. The plaintiffs do not dispute that property owned jointly by more than one individual (such as husbands and wives) should be treated as having more than one owner of record. But, contrary to the trial court‘s holding, nothing in the plain language of section 27-55 suggests a legislative intent to disqualify multiple owners of the same land from being counted as “owners of record” merely because they are not individuals. The language of a statute is the most reliable indicator of the legislature‘s objectives in enacting it. Yang v. City of Chicago, 195 Ill. 2d 96, 103 (2001). Section 27-55 states that “[I]and owned in the name of a land trust, corporation, estate or partnership shall be considered to have a single owner of record.” (Emphases added.)
Taking into account the three owners of record improperly deducted for the “unknown” properties, the two owners improperly counted as one for the Diedrich property, and the two owners improperly deducted for 2125 Fairview, we find that the total number of owners of record was 1,216. The Objectors thus needed at least 620 valid signatures to veto the proposed special service area (51% of 1,216). The trial court found that the Objectors had obtained 619 valid signatures. In addition, the Village argues (and its argument is supported by the record) that the trial court erred in counting as valid the signature of Jean Schulien for the property at 2406 West Johnsburg Road, because that property was owned by a living trust for which her husband was the trustee; Jean Schulien testified that she was the beneficiary, not the trustee, of this trust. Thus, even accepting the trial court‘s premise that an individual could sign on behalf of the living trust that owned the property if that person was the trustee (even if the person did not so indicate on the petition), Jean Schulien‘s signature on behalf of her husband‘s trust was invalid. Once again, the plaintiffs have not submitted any evidence or argument to the contrary. We therefore find that there were at most 618 valid signatures of owners of record, or less than the 51% necessary to veto the proposed special service area. In summary, we find that the Objectors did not obtain the signatures of 51% of either the electors or the owners of record, and that Ordinance No. 07-08-11 therefore is not void and the plaintiffs are not entitled to injunctive relief.
For all of the foregoing reasons, the judgment of the circuit court of McHenry County is reversed.
Reversed.
O‘MALLEY and BURKE, JJ., concur.
JUSTICE SCHOSTOK
JUSTICE O‘MALLEY
JUSTICE BURKE