Oakridge Development Company v. The Property Tax Appeal Board

No. 2-09-0737 Filed: 9-17-10 Modified 11-15-10
_________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________________________

OAKRIDGE DEVELOPMENT COMPANY, ) Petition for Review of the Order of the
ALGONQUIN RANDALL, LLC, and ) Illinois Property Tax Appeal Board.
MILLER FAMILY PARTNERSHIP, )
)
Petitioners, )
)
v. ) No. 06-01901.001-F-3.
)
THE PROPERTY TAX APPEAL BOARD, )
THE McHENRY COUNTY BOARD OF )
REVIEW, and COMMUNITY UNIT )
SCHOOL DISTRICT No. 300, )
)
Respondents. )
_________________________________________________________________________________

Modified Upon Denial of Rehearing

JUSTICE O'MALLEY delivered the opinion of the court:

Petitioners, Oakridge Development Co. (Oakridge); Algonquin Randall, LLC; and Miller

Family Partnership (the Miller Family), appeal for review of the decision of respondent, the Illinois

Property Tax Appeal Board (Board), upholding the rejection by respondent, the McHenry County

Board of Review, of petitioners' property tax appeal. (Their appeal also names a third respondent,

Community Unit School District No. 300.) On appeal, petitioners argue that the Board erred in

concluding that the subject property was not eligible for farmland classification for property tax

purposes. For the reasons that follow, we confirm the decision of the Board.
No. 2--09--0737

The parties do not dispute the relevant facts. The Miller Family owned the subject property

at all pertinent times prior to 2006, and for the eight years preceding 2006 it used the property for

farming in each year. According to an affidavit filed by Oakridge's president, "[i]n early 2006 the

[Miller Family] and their tenant readied the land for cultivation by using a herbicide," but, when the

time to plant crops came, "the family concluded that Oak Ridge would close a sale, so they

abandoned their plans to plant crops." According to an affidavit of the Miller Family's managing

partner, the land was used as farmland in 2004 and 2005 and was "spray[ed] *** for weeds in

anticipation of planting a 2006 crop" in April 2006. However, according to the same affidavit, in

anticipation of the sale to Oakridge the Miller Family declined to plant a crop that year. The sale to

Oakridge closed in December 2006. Although the property had been assessed as farmland for the

2004 and 2005 tax years, it was assessed as urban land for tax year 2006. The change in

classification caused the assessed value of the subject property to rise from approximately $11,000

to over $3 million. Petitioners appealed the change in assessment to the McHenry County Board of

Review. They argued to the board of review that the subject property qualified for farmland

assessment in tax year 2006 because it had been used as a farm the previous two years and because

that use had not discontinued as of January 1, 2006. The board of review, however, rejected

petitioners' claim. The Illinois Property Tax Appeal Board likewise rejected petitioners' claim, on

the basis that the relevant statutes required that, in order to be assessed as farmland for a particular

tax year, property must have been used as a farm during that year. Petitioners now appeal directly

to this court.1

1
Petitioners say in their opening brief that the land could not be developed and in fact was

not developed after January 1, 2006. The Board responds in its brief by asking us to take judicial

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Section 16--195 of the Property Tax Code (Code) (35 ILCS 200/16--195 (West 2008))

provides that "[f]inal administrative decisions of the [Board] are subject to review under the

provisions of the Administrative Review Law [(735 ILCS 5/3--101 et seq. (West 2008))], except that

in every case where a change in assessed valuation of $300,000 or more was sought, that review shall

be afforded directly in the Appellate Court *** and not in the circuit court." The parties do not

dispute that petitioners seek a change in valuation greater than $300,000, and, therefore, direct appeal

to this court is proper.

In an administrative review action, we will reverse administrative findings of fact only if they

are against the manifest weight of the evidence, but we will consider de novo any legal issues. Cook

County Board of Review v. Property Tax Appeal Board, 395 Ill. App. 3d 776, 784 (2009). Out of

deference to an agency's expertise in applying the laws it administers, a reviewing court will not

disturb the agency's determination of mixed questions of law and fact--those issues in which the facts

and law are settled and all that remains is their application--unless the determination is clearly

erroneous. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380,

391 (2001); City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998).

The sole question presented in this appeal is whether the property tax statutes governing farmland

notice of the current substantial shopping development on the property. Petitioners reply by

objecting to the Board's raising facts not included in the appellate record; they also argue that any

activity on the property after January 1, 2006, is irrelevant. We suspect that the Board mentioned

the current development on the property only to correct what seem to be inaccurate statements in

petitioners' opening brief regarding the present state of the property. However, in any event, we

disregard any factual assertions, from either side, not relevant to this appeal.

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assessment require land to be used as a farm in the relevant tax year, or whether use for the prior two

years suffices. This matter of statutory interpretation is an issue of law, and we will review it de

novo. Davis Bancorp, Inc. v. Board of Review of Department of Employment Security, 393 Ill. App.

3d 135, 142 (2009).

For a court charged with interpreting a statute, the primary goal is to ascertain and give effect

to the legislative intent underlying the statute, and the best indicator of that intent is the statute's

language, given its plain, ordinary, and popularly understood meaning. DeRose v. City of Highland

Park, 386 Ill. App. 3d 658, 660 (2008). Indeed, where statutory language is unambiguous, a court

must give the language effect without resort to other, extrinsic aids of construction. DeRose, 386

Ill. App. 3d at 660. However, as we examine the statutory language, we must "give effect to the

entire statutory scheme rather than looking at words and phrases in isolation from other relevant

portions of the statute." Primeco Personal Communications, L.P. v. Illinois Commerce Comm'n, 196

Ill. 2d 70, 87-88 (2001). "In other words, statutes should be construed as a whole, with each

provision evaluated in connection with every other section." Primeco Personal Communications,

196 Ill. 2d at 88. We therefore begin our analysis by examining the language from the several

sections of the code that comprise the legislature's property tax assessment scheme for farmland.

Section 9--155 of the Code describes generally how property should be assigned a value and

how property tax should be assessed based on that value:

"On or before June 1 in each general assessment year in all counties with less than

3,000,000 inhabitants, and as soon as he or she reasonably can in [more populous counties

and specially subdivided counties,] the assessor *** shall actually view and determine as

near as practicable the value of each property listed for taxation as of January 1 of that year

*** and assess the property at 33a% of its fair cash value, or in accordance with Sections

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10--110 through 10--140 [or other specialized sections not applicable here]." 35 ILCS 200/9-

-155 (West 2008).

In any year, including non-general-assessment years, the proper authorities may "revise and correct

an assessment as appears to be just," so long as they give the owner notice of the revision, as

described in sections 12--10 and 12--30 (35 ILCS 200/12--10, 12--30 (West 2008)). 35 ILCS 200/9--

75 (West 2008). Those notices--a public notice that must be issued by December 31 (35 ILCS

200/12--10 (West 2008)) and a notice mailed to the taxpayer (35 ILCS 200/12--30 (West 2008))--

must, among other things, inform the taxpayer of the revision and of the right to appeal the revision.

Before taxes are levied on the assessed value derived under section 9--155, the assessed value may

be equalized under section 9--205 of the Code (35 ILCS 200/9--205 (West 2008)) to ensure parity

among or within townships or to conform assessments to legal qualifications.

Sections 10--110 through 10--140 set out a different valuation and assessment process for

farmland. Section 10--115 sets out a several-step process by which authorities use a five-year

average of the net return on farmland (its income minus its costs) to calculate its "proposed

agricultural economic value," which in turn must be converted to "the equalized assessed value" per

acre of farmland based on soil productivity classifications in each county. See 35 ILCS 200/10--115

(West 2008). Farmland used for crops is then assessed based on that "equalized assessed value."

35 ILCS 200/10--125(a) (West 2008).

Eligibility for the farmland valuation and assessment procedure is governed by section 10--

110, which provides that "[t]he equalized assessed value of a farm, as defined in Section 1--60 and

if used as a farm for the 2 preceding years, *** shall be determined as described in Sections 10--115

through 10--140." 35 ILCS 200/10--110 (West 2008). (Section 1--60 sets forth the definition of a

farm as "any property used solely" for various farm activities. 35 ILCS 200/1--60 (West 2008).) The

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parties to this appeal disagree as to precisely what this language requires: petitioners argue that

property need have been used as a farm only for the two prior years in order to qualify for farmland

valuation and assessment, while respondents argue that the land must be used as a farm also during

the assessment year.

We agree with respondents' reading of the statute. The above-quoted language confers

farmland valuation on "a farm, *** and if used as a farm for the 2 preceding years." As respondents

point out, unless doing so would frustrate legislative intent, courts generally understand the "use of

the word 'and' between two statutory elements [to] indicate[] that both of the elements must be

satisfied in order to comply with the statute." County of Du Page v. Illinois Labor Relations Board,

231 Ill. 2d 593, 606 (2008). In the passage at issue, the word "and" links two statutory elements: the

element that the property be "a farm," as that term is defined elsewhere in the Code, and the element

that the property have been used as a farm for the two preceding years. This language, then, requires

both use as a farm during the assessment year and use as a farm for the two preceding years.

Petitioners urge a contrary reading of the statute's plain language on several grounds. First,

petitioners invoke section 9--155, the section of the Code that deals with valuation and assessment

generally, to argue that the determination as to whether property is farmland must be made as of

January 1. The statutory language on which petitioners rely, quoted above, provides that the assessor

should "determine as near as practicable the value of each property listed for taxation as of January

1 of that year ***, and assess the property at 33a% of its fair cash value, or in accordance with

Sections 10--110 through 10--140." 35 ILCS 200/9--155 (West 2008). Petitioners argue that section

9--155 thus "specifically ties farmland assessments to the 'as of January 1' assessment date." We

disagree. Under our reading of section 9--155, the legislature set out distinct tracks, separated by the

disjunctive "or," for valuation and assessment of farm property and of property generally. Thus, the

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No. 2--09--0737

assessor may "determine *** the value *** as of January 1 *** and assess the property at 33a%"

(the first track, for property generally) "or" the assessor may value and assess the property "in

accordance with Sections 10--110 through 10--140" (the second track, for farmland). 35 ILCS

200/9--115 (West 2008). This second, farmland track is not tethered to the January 1 valuation date.

Indeed, such a valuation date would make no sense under the statutory farmland valuation and

assessment scheme, which determines value not by estimating the cash value of the property, but

rather by using a formula based on a five-year average of farm income for each soil productivity

classification. See 35 ILCS 200/10--115 (West 2008).

The second reason petitioners offer for their contrary reading rests on the interpretive

principle of expressio unius est exclusio alterius. That principle holds that "the enumeration of one

thing in a statute implies the exclusion of all others" (Baker v. Miller, 159 Ill. 2d 249, 260 (1994)).

Petitioners assert that the Code enumerates only two exceptions to the rule that an assessment should

be based on valuation as of January 1; section 9--180 of the Code allows for pro-rata, or

proportional, changes in valuation in the event of either the construction of new buildings or the

destruction of buildings. 35 ILCS 200/9--180 (West 2008). The difficulty with petitioners' second

reason is the same as the difficulty with their first: the language they cite pertains to the valuation

and assessment procedures for property generally, not to the procedures for farmland.2

2
Although they provide no analysis of the case, petitioners cite In re Application of Rosewell,

120 Ill. App. 3d 369 (1983), in their discussion of the expressio unius principle. In Rosewell, the

court held that the classification of property for purposes of a county classification ordinance (which

imposed different assessment levels for different classifications of property) must be determined as

of January 1 of the assessment year, because that type of classification was not among the Code's

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The third reason petitioners offer for their interpretation of the statute is their reading of the

overarching legislative intent underlying the Code. Citing Paciga v. Property Tax Appeal Board, 322

Ill. App. 3d 157, 162 (2001), petitioners argue that the legislature enacted additional sections of the

Code with the express purpose of "prevent[ing] developers from having to pay increased taxes on

farmland or vacant land in the beginning of the development process." Petitioners are correct that

we have interpreted section 10--30 of the Code (35 ILCS 200/10--30 (West 2008)) to protect

developers from increases in property taxes just after they purchase former farmland but before they

are able to finish development and begin to sell lots. See Paciga, 322 Ill. App. 3d at 162-63.

However, petitioners by their own admission do not qualify for special treatment under section 10--

30. The public policy they cite could be read to support an expansive interpretation of section 10--

30, but their public policy statements are irrelevant where, as they concede, section 10--30 cannot

apply.

Petitioners' fourth, and final, argument regarding the interpretation of the statute combines

two more principles of statutory construction: the ideas that a statute should be read as a whole (Paris

v. Feder, 179 Ill. 2d 173, 177 (1997)) and that a court should not interpret a statute to allow an

absurd result (Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000)).

Petitioners direct us to section 9--175 of the Code, which dictates that "[t]he owner of property on

January 1 in any year shall be liable for the taxes of that year." 35 ILCS 200/9--175 (West 2008).

Based on this provision, they argue that a rule allowing farmland status to be determined after

limited exceptions to the January 1 valuation rule. Here, however, we hold that the January 1

valuation rule does not apply because the farmland valuation rules apply instead. Thus, an exception

is not required.

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January 1 could cause an owner who sold property midyear to suffer increased tax liability due to

the subsequent actions of the purchaser. We do not agree that this result is absurd; it seems a rational

means of providing needed administrative convenience for assessing bodies. It also seems quite

rational that a property owner who is receiving special valuation and assessment would realize that

he sells his property with the risk that the new owner will not qualify for the same favorable tax

treatment. Sellers in real estate transactions may accept this risk or negotiate whatever terms they

deem necessary to manage its effect. Further, the alternative interpretation petitioners espouse--that

under the Code land may be considered farmland, even if it is not actually farmland, because it has

been farmland in the past--seems to us more absurd than the scheme we describe above.

Indeed, our courts have long held that property cannot qualify for farmland valuation under

the Code unless it has "present use" as farmland, even when the Code has contained the same

January 1 tax liability provision. In Santa Fe Land Improvement Co. v. Illinois Property Tax Appeal

Board, 113 Ill. App. 3d 872 (1983), the Third District considered an appeal in which the landowner

sought valuation and assessment as agricultural land for the 1978 tax year despite indications that

the owner intended to use the land for industrial purposes. The court concluded that "it is the use

of real property which determines whether it is to be assessed at an agricultural valuation" and that

"the present use of land determines whether it receives an agricultural or nonagricultural valuation."

Santa Fe, 113 Ill. App. 3d at 875. Accordingly, since the land in Santa Fe was agricultural, and had

not been turned into an industrial site in the assessment year, the court held that the owner was

entitled to agricultural valuation. Santa Fe, 113 Ill. App. 3d at 875. In so holding, the court rejected

the position that the Code allowed for "transitional" valuation periods; it held that a "recapture"

provision in the Code, which retroactively imposed three years' full tax on property that ceased to

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be farmland (Ill. Rev. Stat. 1975, ch. 120, par. 501a--3) "illustrated" that the Code based its

classifications on present use. Santa Fe, 113 Ill. App. 3d at 875.

Santa Fe supports our interpretation of the Code for two reasons. First, Santa Fe is precedent

that coincides with our interpretation, and no court has overruled it. Its holding has also not been

repudiated by the legislature. "Where terms in a statute have acquired a settled meaning in judicial

construction, the legislature will be presumed to know and adopt that construction unless it clearly

indicates otherwise." Du Page County Airport Authority v. Department of Revenue, 358 Ill. App.

3d 476, 490 (2005). Although the Code has been amended since 1975 (the Code year applied in

Santa Fe), we see nothing in those amendments to indicate an intent to overrule Santa Fe.

In 1975, the Code's provision on farm valuation and assessment applied to "real property

which is used for farming or agricultural purposes and has been so used for the 3 years immediately

preceding the year when the assessment is made" (Ill. Rev. Stat. 1977, ch. 120, par. 501a--1), a

formulation that plainly requires that the present use be as a farm. The legislature later amended the

Code to excise this section, as well as the section that set forth the "recapture" provision described

in Santa Fe. Pub. Act 83--347, §1, eff. September 14, 1983 (repealing Ill. Rev. Stat. 1981, ch. 120,

pars. 501a--1 through 501a--3). At roughly the same time, the legislature moved all Code provisions

governing farmland assessment and valuation to section 20e of the Code (Ill. Rev. Stat. 1983, ch.

120, par. 501e). Pub. Act 82--121, §1, eff. August 11, 1981; Pub. Act 82--1028, §1, eff. January 1,

1983; Pub. Act 82--1033, §1, eff. December 22, 1982. Section 20e's new statutory provisions

regarding farmland had no recapture provision, but they applied farmland valuation to "real property

constituting a 'farm' *** which has been used as a farm for the two preceding years." Ill. Rev. Stat.

1983, ch. 120, par. 501e.

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Even though Santa Fe relied on the "recapture" provision of the 1977 version of the Code,

we do not interpret the legislature's repeal of that provision as indicating the required clear intent to

overrule Santa Fe, for two reasons. First, the recapture provision, although relied on in Santa Fe, was

attenuated from the question of whether farmland must be farmland in the tax year at issue. Thus,

the legislature's removing the recapture provision--a provision it could have reconsidered for a

number of reasons unrelated to Santa Fe--does not constitute a direct comment on Santa Fe's holding.

Cf. Du Page County Airport Authority, 358 Ill. App. 3d at 496 (change to a definition in the Airport

Authorities Act "too far attenuated" from the Code to indicate a legislative intent to overrule case

law interpreting the Code). Second, although the legislature removed the recapture provision, it

included language that quite clearly indicates an intent that present use and two years' prior use as

a farm were both required to qualify property for farmland valuation and assessment. In the new

language, the legislature applied farmland valuation to "real property constituting a 'farm' *** which

has been used as a farm for the two preceding years." (Emphasis added.) Ill. Rev. Stat. 1983, ch.

120, par. 501e. Far from indicating an intent to overrule Santa Fe, this "constituting a farm"

language actually indicates an intent to follow it.

The legislature later amended the Code's farmland valuation procedures once more (see Pub.

Act 88--455, art. 10, §§10--100 through 10--145, eff. January 1, 1994), this time to divide them into

several sections. That amendment changed the "constituting a farm" language to the language used

in the current version of the Code. See 35 ILCS 200/10--110 (West Supp. 1993) ("The equalized

assessed value of a farm, as defined in Section 1--60 and if used as a farm for the 2 preceding years,

*** shall be determined as described in Sections 10--115 through 10--140"). In this context, the

current language appears to mark no substantive departure from the former version. Thus, in total,

we see nothing to indicate that the legislature has acted to repudiate Santa Fe's holding that property

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must have a present use as a farm in order to qualify for farmland valuation and assessment under

the Code.

The second, and closely related, reason Santa Fe supports our ruling is that, in the time since

Santa Fe was decided, the legislature has had ample opportunity to overrule it. As respondents

observe in their briefs, the Third District's statement in Santa Fe that "present use" controls the

classification of farmland under the Code has been repeated many times in our case law. See

Senachwine Club v. Putnam County Board of Review, 362 Ill. App. 3d 566, 568 (2005); Bond

County Board of Review v. Property Tax Appeal Board, 343 Ill. App. 3d 289, 292 (2003); Kankakee

County Board of Review v. Property Tax Appeal Board, 305 Ill. App. 3d 799, 802 (1999); Du Page

Bank & Trust Co. v. Property Tax Appeal Board, 151 Ill. App. 3d 624, 627 (1986). Two of these

decisions applied the "present use" requirement. See Bond County Board of Review, 343 Ill. App.

3d at 293 ("If the subdivided farmland continues to be used as a farm, *** then it shall be assessed

as a farm ***. [Citation.] If the subdivided farmland's use changes to residential, *** then the

assessor shall reassess the land as residential ***"); Du Page Bank & Trust Co., 151 Ill. App. 3d at

627 ("No evidence was presented to establish that the property had been farmed in 1981, the tax year

in question"). However, as discussed above, the legislature has not acted to repudiate the statement.

Where judicial interpretation of a statute has not evoked an amendment, the legislature will be

presumed to have acquiesced in the interpretation. People v. Marker, 233 Ill. 2d 158, 178 (2009),

citing People v. Downs, 371 Ill. App. 3d 1187, 1191 (2007). The fact that the legislature has let

these cases stand further indicates that their interpretations match legislative intent.

Petitioners also argue that, if our interpretation is correct, the Code's treatment of the subject

property is unconstitutional for two reasons. First, they assert that the higher assessment violates the

uniformity clause of the Illinois Constitution. See Ill. Const. 1970, art. IX, §4 (real estate taxes "shall

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be levied uniformly by valuation ascertained as the General Assembly shall provide by law").3

However, as respondents observe, the uniformity clause prevents taxing officials from "valu[ing] the

same kinds of properties within the same taxing boundary at different proportions of their true

value." Walsh v. Property Tax Appeal Board, 181 Ill. 2d 228, 234 (1998). There is no allegation

here that the relevant taxing bodies somehow taxed the subject property differently than other

nonfarmland. We therefore reject petitioners' uniformity argument.

Petitioners' second constitutional argument is that the $3 million assessment for the subject

property "is so extreme and excessive as to amount to an unconstitutional confiscation of [the]

property." For this proposition, petitioners refer us to two Supreme Court cases: Department of

Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 128 L. Ed. 2d 767, 114 S. Ct. 1937 (1994), and

Nichols v. Coolidge, 274 U.S. 531, 71 L. Ed. 1184, 52 S. Ct. 710 (1927). In Kurth Ranch, however,

the Supreme Court held that a "tax" on the possession of dangerous drugs, imposed after a person's

arrest for possession of drugs, was actually a punitive measure that violated constitutional protections

against double jeopardy. Kurth Ranch, 511 U.S. at 777-85, 128 L. Ed. 2d at 777-82, 114 S. Ct. at

1944-49. Here, there is no allegation, or implication, that the tax was meant to be punitive, so Kurth

Ranch has no application. Nichols, on the other hand, involved a tax the Supreme Court considered

"so arbitrary and capricious as to amount to confiscation and offend the Fifth Amendment" (Nichols,

274 U.S. at 542, 71 L. Ed. at 1193, 52 S. Ct. at 714), but petitioners offer no argument why a

3
Petitioners also reference the United States Constitution in their argument, but they make

no effort to apply it separately from their uniformity argument. We therefore do not analyze any

federal constitutional claims separately.

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generally applicable property tax should be deemed so arbitrary and capricious here. We therefore

reject petitioners' arguments that our interpretation of the Code is unconstitutional.

After we issued our opinion, petitioners filed a petition for rehearing raising several

challenges to our holding. Petitioners subsequently moved to supplement the petition for rehearing

with additional authority. We grant that motion. Many of the points petitioners raise, however,

could have been raised in their initial briefs and were therefore forfeited. See 210 Ill. 2d R.

341(h)(7). We address only a couple of those points. First, petitioners argue at length that our

decision allows a taxing body to select a "random" valuation day and that thus our holding violates

the uniformity clause of the Illinois Constitution. We disagree with this interpretation of our

decision. Our opinion holds that the definition of "farmland" requires use as a farm throughout the

year. If property does not meet that definition, it will be taxed based on its value as of January 1 of

that year. If property does meet that definition, it will be taxed based on the farmland-valuation

formula.

Petitioners also argue in their petition for rehearing that our decision violates the uniformity

clause by failing to set forth a valuation date for farm property. The problem with this argument is

that it assumes the normal valuation process, which applies to nonfarmland. Under that process, the

value of the nonfarmland is determined as of January 1, and the property owner is taxed accordingly.

It makes sense that, in order for the tax to be uniform, the "as of" date used for valuation would have

to be uniform. As we explain above, however, "a valuation date would make no sense under the

statutory farmland valuation and assessment scheme, which determines value not by estimating cash

value of the property, but rather by using a formula based on a five-year average of farm income for

each soil productivity classification." Slip op. at 7.

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Petitioners point out in their petition for rehearing that the statute governing coal assessments

provides for just the type of valuation system they think should apply to farmland, but, notably, each

of the sections of the coal statute they quote has language that differs from the farm statute we

interpreted in our opinion. The fact that the coal statute explicitly lists the features that petitioners

emphasize, while the farm statute does not, further supports our interpretation that the farm statute

does not have those features.

For the foregoing reasons, we agree with the Board that petitioners' property was not entitled

to valuation and assessment as farmland. We therefore confirm the Board's decision.

Confirmed.

BOWMAN and SCHOSTOK, JJ., concur.

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