Cook County Board of Review v. Property Tax Appeal Board ( 2010 )

FIFTH DIVISION
July 30, 2010
No. 1-08-2060
THE COOK COUNTY BOARD OF REVIEW, ) Petition for Review of an
) Order of the Illinois
Petitioner, ) Property Tax Appeal Board.
)
v. )
)
THE PROPERTY TAX APPEAL )
BOARD, an Administrative Agency, )
and CRESTWOOD CONDOMINIUM )
ASSOCIATION, Taxpayer, )
)
Respondents. )
JUSTICE HOWSE delivered the opinion of the court:
Following a hearing, the Illinois Property Tax Appeal Board
(PTAB) issued a decision modifying the assessed value of the
properties at issue for 2004 and 2005. The Cook County Board of
Review (Board) petitioned for review of the PTAB’s order. On
appeal, the Board contends: (1) the PTAB erred as a matter of law
in holding the Crestwood Condominium Association (Crestwood)
proved a violation of uniformity by clear and convincing
evidence; (2) the PTAB erred as a matter of law by setting
assessments that are not equitable or supported by the evidence;
and (3) the PTAB’s findings were against the manifest weight of
the evidence. For the following reasons, we affirm the PTAB’s
decision.
FACTS
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Crestwood is a 30-year-old residential community located in
Des Plaines, Illinois. The Crestwood property consists of 154
buildings, each of which has the same floor plan layout and
square footage. One hundred and fifty-two of the buildings are
configured identically, each being divided into three 2-bedroom
units, two large one-bedroom units and a smaller one-bedroom
unit. The remaining two buildings are each divided into two 2-
bedroom units and four larger one-bedroom units. When they were
developed, all 154 buildings received an individual property
identification number (PIN).
In 2002, 12 of the 154 buildings were legally subdivided
into 72 individual dwelling units. In 2004, 12 additional
buildings out of the remaining 142 buildings were subdivided into
72 individual dwelling units. Each individual unit received its
own separate PIN for property tax assessment purposes.
For the year 2003, all of the buildings were assessed the
same, at $36,879 a piece. As of January 1, 2004, the subdivided
individual units were assessed at $6,959, $6,185, $5,670, or
$5,669, depending on their size, for an average of $37,628 per
subdivided building. The remaining unsubdivided buildings
received total assessments of $55,350, or an average of $9,225
per living unit. Two exceptions applied to the assessments:
first, the county valued one entire unsubdivided building at
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$37,637; second, the county valued some of the other subdivided
buildings at $55,343 per building. The assessments remained the
same in 2005.
Crestwood appealed the 2004 and 2005 assessments to the
PTAB. In its briefs in support of the appeals and in its summary
judgment motions, Crestwood alleged all of the buildings in the
development were substantially similar, and the fact that 13 of
the 154 buildings were assessed lower violated the Illinois
Constitution’s requirement that property tax assessments be
uniform. Crestwood alleged the county assessor and the board of
review allowed for the disparate treatment in the assessment of
the various buildings in the development based on whether or not
the buildings were subdivided into individual condominium units.
Crestwood requested that the assessed values of the 141 buildings
assessed at $55,350 be reduced to the same assessment as the 13
buildings assessed at $37,628.
The Board submitted its “Board of Review Notes on Appeal,”
wherein the subject properties’ 2004 and 2005 final total
assessments were disclosed. The assessment summary noted 124
buildings were assessed at $55,350; 1 building was assessed at
$37,637; 11 individual condominium units were assessed at $5,670;
10 individual condominium units were assessed at $5,669; 22
individual condominium units were assessed at $6,959; and 22
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individual condominium units were assessed at $6,185. The
Board’s representative presented an analysis prepared by the
Board outlining the properties’ market values before and after
being subdivided. A summary of the sales of the properties’
subdivided individual units was also submitted by the Board.
According to the Board’s evidence, the average selling price for
the six individual condominium units in each of the subdivided
buildings indicated the aggregate value of the subdivided
buildings averaged $697,500 in 2004 and 2005. All of the
unsubdivided buildings and individual units in the subdivided
buildings were classified as 299 condominiums, the only
recognized class of condominiums in Cook County.
During the hearing before a PTAB hearing officer, Crestwood
called Sandra Hannon, Crestwood’s property manager. Hannon
testified there is no difference in the overall square footage in
the buildings or the units. She said the six-unit buildings were
selling for between $550,000 and $575,000 during 2004 and 2005.
Individual units sold for an average of $110,000. Hannon
testified the monthly assessment and percentage of common
ownership in the condominium community (.64935%) were the same
for each building. Hannon said the tax increases had caused a
lot of the unsubdivided building owners a “great financial
hardship.”
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The hearing officer then questioned the Board’s
representative at the hearing, Matt Panush. When asked why the
County had two sets of assessments for the buildings, Panush
explained:
“It seems that out of the 154 buildings,
according to, you know –- there are six
buildings that are assessed at this lower
number. *** And that leaves us with 148 of
the buildings being uniform. So for some
reason –- And most of the time we sit here,
and of the many condo units, there’s one that
seems to have been, you know, misunderstood
or misclassified or misassessed. It would
seem here that the majority of these
buildings –- of these six-unit buildings –-
are correct in their assessment and that we
do not have a problem with the four. I
cannot tell you why they have the $37,000.
*** I’m not sure why the assessor chose to
put the number at $37,000, but I do know that
a majority –- 148 or of the 154 –- are
uniform in this complex and I think, you
know, that’s –- that is what we are –- we
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strongly stress here in this case.”
Panush further explained that the Board believed 96% of the
development was currently correct or assessed fairly, “and
somehow 4 percent of this entire development is somehow
incorrect.” Panush specifically stressed, however, that the
Board was not asking the PTAB to increase the assessments on the
other 4% of the buildings to make the whole development uniform.
Crestwood’s counsel responded to Panush’s answer to the
hearing officer’s question by noting:
“It is clearly not a mistake because they’ve
continued it. There were assessment appeals
filed advising the assessor of what we
believed to be a lack of uniformity. The
assessment relief was denied. *** This is
ongoing. Every time a unit is sold the
assessors reduce the assessment. This didn’t
just happen in 2004, it happened in 2005 as
well. So every time a building was converted
and sold as individual condos, the assessor’s
pattern and practice has been to reduce the
assessments to this $37,000 level.”
On August 12, 2009, the PTAB issued a modified decision
finding a reduction in the assessment of the property at issue
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was warranted based on the facts and exhibits presented.
Specifically, the PTAB found the record was clear that “an
inequity exists in the assessment process between the subject’s
subdivided and un-subdivided buildings.” The PTAB noted the
evidence demonstrated that although the buildings had the same
physical characteristics and percentage of ownership in the
common elements, the assessments of the buildings differed
depending on whether or not the buildings had been subdivided
into individual units. The PTAB found there was “no market data
demonstrating that the buildings had differing overall values
depending on whether or not the buildings had been subdivided.”
Without such market data, the PTAB found there was no basis for
assessing the similar buildings differently. The PTAB found
Crestwood had “adequately demonstrated that the subject was
inequitably assessed by clear and convincing evidence and
reductions are warranted for 2004 and 2005.”
The Board appeals the PTAB’s decision.
ANALYSIS
Our review of a PTAB decision is governed by the
Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2008)).
35 ILCS 200/16-195 (West 2008); Cook County Board of Review v.
Property Tax Appeal Board, 395 Ill. App. 3d 776, 784, 918 N.E.2d
1174 (2009). Our scope of review extends to “all questions of
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law and fact presented by the entire record.” 735 ILCS 5/3-110
(West 2008). The PTAB’s findings and conclusions on questions of
fact “shall be held to be prima facie true and correct.” 735
ILCS 5/3-110 (West 2008); Cook County Board of Review, 395 Ill.
App. 3d at 784. We will not reweigh the evidence or substitute
our judgment for that of the administrative agency. Cinkus v.
Village of Stickney Municipal Officers Electoral Board, 228 Ill.
2d 200, 210, 886 N.E.2d 1011 (2008). Accordingly, we will not
reverse the PTAB’s factual findings unless they are against the
manifest weight of the evidence, meaning an opposite conclusion
is clearly evident. Cook County Board of Review, 395 Ill. App.
3d at 784, citing Cinkus, 228 Ill. 2d at 210. The PTAB’s
determination on a question of law, however, is not binding on
us, “rendering our review ‘independent and not deferential.’ ”
Cook County Board of Review, 395 Ill. App. 3d at 784, quoting
Cinkus, 228 Ill. 2d at 210.
I. Standard of Review
Initially, the parties disagree as to what standard of
review should apply to the PTAB’s decision on appeal.
Administrative review proceedings present three types of
questions: those of fact, those of law, and mixed questions of
fact and law. Cook County Board of Review, 395 Ill. App. 3d at
784, citing Cook County Republican Party v. Illinois State Board
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of Elections, 232 Ill. 2d 231, 243, 902 N.E.2d 652 (2009).
Factual determinations should only be reversed if they are
against the manifest weight of the evidence. Republican Party,
232 Ill. 2d at 243. A de novo standard of review applies to an
agency’s determination of a question of law. Republican Party,
232 Ill. 2d at 243. Lastly, mixed questions of law and fact will
only be reversed if the agency’s decision is “clearly erroneous.”
Republican Party, 232 Ill. 2d at 243-44.
The Board contends the PTAB erred as a matter of law when it
held Crestwood proved a violation of uniformity, necessitating a
de novo review. The Board also contends the PTAB erred as a
matter of law by setting assessments that are not equitable or
supported by the evidence. The Board further contends, however,
that the PTAB’s findings were against the manifest weight of the
evidence. Both the PTAB and Crestwood counter that no question
of law is presented here, and, therefore, the proper standard of
review is the manifest weight of the evidence standard. We agree
with Crestwood and the PTAB.
A review of the record and briefs submitted by the Board
indicates the PTAB did not address a question of law in reaching
its decision. Instead, the PTAB’s decision was based solely on a
factual determination that the assessments at issue here lacked
uniformity. Therefore, we review the PTAB’s factual
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determinations and ultimate conclusion using the manifest weight
of the evidence standard. See Cook County Board of Review, 395
Ill. App. 3d at 785, citing Cinkus, 228 Ill. 2d at 210.
II. PTAB’s Decision
The Board contends the PTAB’s findings were against the
manifest weight of the evidence. Specifically, the Board
contends the “uncontested and uncontroverted” evidence in the
record established the parcels subject to the PTAB’s reduction
were uniformly assessed and valued at their fair market value.
Contrary to several of the superfluous arguments the Board
raises on appeal, the only issue properly pending before the PTAB
was Crestwood’s claim that 141 unsubdivided buildings in the
Crestwood development were assessed at $55,350 and 13 almost
identical subdivided buildings were assessed at $37,628, in
violation of the property tax uniformity provision in the
Illinois Constitution.
Matt Panush, the Board’s representative at the hearing,
specifically stressed the Board was not asking the PTAB to
increase the assessments on the other 4% of the buildings to make
the whole development uniform. Instead, the Board’s sole
argument before the PTAB was that the 13 “misclassified or
misassessed” buildings should not impact the other 141 buildings
that were fairly assessed. Panush was unable to offer a reason
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to explain the differences in the assessments. To the extent the
Board now attempts to raise other arguments to support the
difference in assessments for the first time in this appeal, we
find those arguments are waived and need not be considered here.
See Cook County Board of Review, 395 Ill. App. 3d at 786 (“We
recognize that arguments or objections that are not made during
the course of the administrative hearing process but instead are
raised for the first time on review are deemed waived”).
The Illinois property tax scheme is grounded in article IX
of the Illinois Constitution of 1970, which provides in pertinent
part that real estate taxes “shall be levied uniformly by
valuation ascertained as the General Assembly shall provide by
law.” Ill. Const. 1970, art, IX, §4(a); Walsh v. Property Tax
Appeal Board, 181 Ill. 2d 228, 234, 692 N.E.2d 260 (1998).
Because uniformity requires equality in the burden of taxation,
taxing officials may not value the same kinds of properties
within the same taxing boundary at different proportions of their
true value. Walsh, 181 Ill. 2d at 234, citing Kankakee County
Board of Review v. Property Tax Appeal Board, 131 Ill. 2d 1, 20,
544 N.E.2d 762 (1989). The constitutional provision does not
call for mathematical equality, however. Apex Motor Fuel Co. v.
Barrett, 20 Ill. 2d 395, 401, 169 N.E.2d 769 (1960). “The
requirement is satisfied if the intent is evident to adjust the
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burden with a reasonable degree of uniformity and if such is the
effect of the statute in its general operation. A practical
uniformity, rather than an absolute one, is the test.” Apex
Motor Fuel Co., 20 Ill. 2d at 401.
“The party objecting to an assessment on lack of uniformity
grounds bears the burden of proving the disparity by clear and
convincing evidence.” Walsh, 181 Ill. 2d at 234; Cook County
Board of Review v. Property Tax Appeal Board, 345 Ill. App. 3d
539, 543,, 803 N.E.2d 55 (2003), citing 86 Ill. Adm. Code
§1910.63(b), amended at 24 Ill. Reg. 1233, 1247, eff. January 5,
2000 (“Under the burden of going forward, the contesting party
must provide substantive, documentary evidence or legal argument
sufficient to challenge the correctness of the assessment of the
subject property”). The PTAB’s rules provide:
“Proof of unequal treatment in the
assessment process should consist of
documentation of the assessments for the
assessment year in question for the subject
property and of the suggested comparable
properties, and documentation of the
similarity, proximity and lack of
distinguishing characteristics of the
assessment comparables to the subject
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property.” 86 Ill. Adm. Code §1910.65(b)
(1996). See Du Page County Board of Review
v. Property Tax Appeal Board, 284 Ill. App.
3d 649, 654-55, 672 N.E.2d 1309 (1996).
“[T]he critical consideration is not the number of allegedly
similar properties, but whether they are in fact ‘comparable’ to
the subject property.” Du Page County Board of Review, 284 Ill.
App. 3d at 655, citing Kankakee County Board of Review, 131 Ill.
2d at 22.
Here, the PTAB found the evidence demonstrated that even
though each of the buildings had the same physical
characteristics and the same percentage of ownership in the
common elements of the development, the assessments of the
buildings differed depending on whether or not there had been a
further subdivision of the buildings into individual units.
Accordingly, the PTAB found Crestwood had adequately demonstrated
the subject property was inequitably assessed by clear and
convincing evidence. We find the record before us clearly
supports the PTAB’s finding of a lack of uniformity, and the
Board has failed to establish the PTAB’s ruling was against the
manifest weight of the evidence.
Hannon, Crestwood’s property manager, specifically testified
at the hearing that there is no difference in the overall square
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footage in the buildings or the units between the subdivided and
unsubdivided buildings. Hannon also testified the monthly
community assessment and percentage of ownership in the
community’s common elements were the same for each building,
regardless of whether it had been divided or not.
Notwithstanding, the Board contends the PTAB erred in
reassessing the higher-valued properties to be in line with the
lower-valued assessments because “[t]he overwhelming majority of
the buildings in this development were assessed uniformly.” The
Board made a similar argument before the PTAB hearing officer.
Although the County’s representative, Matt Panush, could not
explain why 4% of the buildings had been misclassified or
misassessed, he argued to the PTAB that the assessor’s mistake in
assessing the 13 buildings at a lower assessment did not justify
lowering the assessments on the 96% that had been assessed
fairly. Panush admitted in his opening comments to the hearing
officer that all 154 buildings were “pretty much identical.”
Panush offered absolutely no explanation during the hearing for
why the alleged “mistake” in assessing the subdivided buildings
at a lower rate had occurred. Panush argued the assessments
imposed on the 142 units were justified under the market value of
the buildings. Panush also stressed the Board was not seeking to
reassess the 13 subdivided buildings at the higher rate.
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Crestwood’s counsel responded to Panush’s argument by noting
the lower assessments for the subdivided buildings were still
ongoing and clearly not a mistake. Crestwood noted the
individual units when totaled up sold for an average of $697,000
per subdivided building, which was more than the buildings sold
for as individual buildings. Crestwood argued that,
nevertheless, the assessor saw fit to actually reduce the
assessment on the subdivided individual units rather than
increase it. Crestwood also noted the assessors reduced the
assessment every time a building was sold and converted into
individual condos, even after the Board was made aware of the
lack of uniformity between the assessments.
Based on the totality of the evidence presented, we find
Crestwood proved by clear and convincing evidence a lack of
uniformity between the assessments imposed on the almost
identical buildings. Accordingly, we cannot say PTAB’s findings
in this case were against the manifest weight of the evidence.
CONCLUSION
We affirm the PTAB’s decision.
Affirmed.
TOOMIN, P.J., and LAVIN, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be Attached to Each Case)
Please use THE COOK COUNTY BOARD OF REVIEW,
following form:
Petitioner,
Complete v.
TITLE
of Case THE PROPERTY TAX APPEAL BOARD, an Administrator
Agency, and CRESTWOOD CONDOMINIUM ASSOCIATION,
Taxpayer,
Respondents.
Docket Nos. No. 1-08-2060
COURT Appellate Court of Illinois
First District, 5th Division
Opinion
Filed July 30, 2010
(Give month, day and year)
JUSTICES JUSTICE HOWSE delivered the opinion of the court:
TOOMIN, P.J., and LAVIN, J., concur.
APPEAL from the Petition for Review of an Order of
Circuit Court of the Illinois Property Tax Appeal Board.
Cook County; the
Hon.___________,
Judge Presiding.
For APPELLANTS, Indicate if attorney represents APPELLANTS or APPELLEES and
John Doe, of include attorneys of counsel. Indicate the word NONE if
Chicago. not represented.
For APPELLEES, For Petitioner, Anita Alvarez, State's Attorney of
Smith and Smith, Cook County, of Chicago. (Patrick T. Driscoll, Jr.,
of Chicago. Deputy State's Attorney, Chief, Civil Actions Bureau;
Benjamin R. Bilton and Tatia C. Gibbons, Assistant
State's Attorneys, of Counsel.)
For Respondent - Crestwood Condominium Association,
Joseph Brown, Donald T. Rubin, Rubin & Norris, LLC, of Chicago.
of Counsel).
For Respondent - Property Tax Appeal Board,
Lisa Madigan, Attorney General, Michael A. Scodro,
Solicitor General, and Evan Siegel, Assistant Attorney
Also add attor- General, of Chicago.
neys for third-
party appellants
and/or appellees.
(USE REVERSE SIDE IF NEEDED)
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