dissenting:
I agree with the majority that in the instant tax assessment objection case the Code of Civil Procedure rather than the Property Tax Code regulates intervention. I respectfully disagree, however, with the majority’s conclusion that the trial court’s denial of the petitions to intervene must be reversed and the case remanded with directions to hold a hearing to determine whether petitioners have satisfied the intervention requirements under section 2 — 408(a)(2) or section 2 — 408(a)(3) of the Code of Civil Procedure. 735 ILCS 5/2 — 408(a)(2), (a)(3) (West 2002) (Civil Code). The petitions to intervene filed by petitioners fail to adequately allege a basis for intervention under either section 2 — 408(a)(2) or section 2 — 408(a)(3) of the Civil Code. The circuit court did not deny intervention based on a finding that the allegations in the petitions were insufficient. However, a reviewing court can sustain the decision of the circuit court on any grounds that are supported by the record “regardless of whether the circuit court relied on the grounds and regardless of whether the circuit court’s reasoning was correct.” Bell v. Louisville & Nashville R.R. Co., 106 Ill. 2d 135, 148 (1985).
Sections 2 — 408(a)(2) and 2 — 408(a)(3) of the Civil Code state:
“Intervention, (a) Upon timely application anyone shall be permitted as of right to intervene in an action: *** (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or a court officer.” 735 ILCS 5/2 — 408(a)(2), (a)(3) (West 2002).
“Although it is well settled that the intervention statute is remedial and should be liberally construed [citation], the petitioner is nevertheless required to allege specific facts that demonstrate that he has a right to intervene.” Warbucks Investments Ltd. Partnership v. Rosewell, 241 Ill. App. 3d 814, 817 (1993). “Allegations that are conclusory in nature and merely recite statutory language are insufficient to meet the requirements of section 2 — 408.” Rosewell, 241 Ill. App. 3d at 817.
In order to state a basis for intervention under section 2 — 408(a)(2), petitioners were required to allege specific facts demonstrating that the State’s Attorney’s representation is or may be inadequate. The allegations included in the petitions to intervene are insufficient to meet the requirements of section 2 — 408(a)(2).
The petitions allege that “[t]he State’s Attorney’s Office devotes 17 to 18 assistant state’s attorneys to its Real Estate Tax Division,” and that “[o]n average, each assistant must handle over 300 specific objection cases in addition to their share of the tax appeals filed before the Property Tax Appeal Board and in addition to their other civil property tax caseload.” The petitions, however, do not state what the objection cases concern, how simple or complex those cases are, or whether they involve the same or related issues. Without such information, petitioners’ allegations regarding caseload lack specific facts that demonstrate the representation provided by the State’s Attorney in the instant case is or may be inadequate.
The petitions further allege that “[t]he sheer volume of the State’s Attorney’s caseload” combined with “the magnitude of the property tax refunds during the past two years ($382.0 million) and the magnitude of the Petitioners’ interest (70% of every refunded tax dollar) leads [sic] inexorably to the conclusion that the State’s Attorney’s representation of the Petitioners’ interest in this matter is or may be inadequate.” (Emphasis in original.) Contrary to petitioners’ allegations, the size of the State’s Attorney’s caseload, the magnitude of property tax refunds during the previous two years, and the magnitude of petitioners’ interest do not lead “inexorably” to the conclusion that the State’s Attorney’s representation is or may be inadequate. First, the alleged magnitude of petitioners’ financial interest in the outcome of the instant cases has no bearing on the adequacy of the State’s Attorney’s representation. Secondly, as previously mentioned, the size of the State’s Attorney caseload alone, without allegations regarding the nature of those cases, provides an insufficient factual basis in support of the allegation that the State’s Attorney’s representation is or may be inadequate. Third, with respect to the amount of the refunds during the previous two years, the petitions do not allege that those receiving the refunds were not entitled to them. Nor do the petitions identify any shortcomings in the State’s Attorney’s representation that may have led to those refunds.
Finally, the petitions allege that “[o]n information and belief, the State’s Attorney’s Office lacks the financial resources to obtain appraisal reports in defense of the current assessment on all but a small percentage of tax objection complaints filed each year.” The petitions, however, do not allege specific facts, such as the size of the budget of the State’s Attorney’s office or the average cost of appraisal reports, to support petitioners’ belief that the State’s Attorney’s office lacks financial resources sufficient to obtain appraisal reports. Indeed, the fact that the Cook County tax collector was successful in the proceedings before the Board of Review giving rise to the instant tax objection cases reflects that petitioners’ position regarding the assessment of the subject properties has prevailed up to this point.
In addition to failing to state a basis for intervention under section 2 — 408(a)(2) of the Civil Code, the petitions fail to sufficiently allege a basis for intervention under section 2 — 408(a)(3) of the Civil Code. Petitioners were required under section 2 — 408(a)(3) to allege specific facts showing that they are “so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court.” 735 ILCS 5/2— 408(a)(3) (West 2002). The allegations included in the petitions to intervene are insufficient to satisfy this requirement.
The petitions allege that a portion of petitioners’ revenue is generated from real estate taxes collected by the Cook County treasurer and note that refunds of property tax revenues are paid by the county treasurer from a taxing district’s current collections. The petitions allege that to the extent the subject properties’ assessed values are reduced, petitioners “will suffer a combined direct revenue loss of $.70 for every dollar refunded to the property owner[s].” The petitions further allege that such a loss “directly reduces the revenue that is available to the City to provide City services” and “reduces the programs and educational opportunities the Board of Education is able to offer the children of the City of Chicago.” Accordingly, the petitions conclude, “[t]he petitioners are so situated as to be adversely affected by any settlement or trial of this action that calls for any reduction in the assessed value of the subject property.”
If the trial court ultimately concludes that the plaintiffs’ properties have been overassessed, it will have the ability to direct the collector to distribute a refund to plaintiffs, and such a refund “shall be made *** from the next funds collected after entry of the final order until full payment of the refund and interest thereon has been made.” 35 ILCS 200/23 — 20 (West 2002). However, this fact — that the trial court could potentially enter an order requiring the tax collector to use future funds she collects to pay a refund — does not provide a sufficient basis to demonstrate that petitioners will be “adversely affected.” As plaintiffs in case Nos. 02 CT 2168, 02 CT 2180, and 02 CT 2192 point out in their response brief on appeal, “[t] axing district revenue is not derived from assessments, but from levies and the corresponding rates.” See People ex rel. Ingram v. Wasson Coal Co., 403 Ill. 30, 36 (1949) (“The amount of tax extended upon any assessment is not determined by the amount of the assessment, but by the demands of the local taxing authorities”). Furthermore, as plaintiffs in case Nos. 02 CT 2168, 02 CT 2180, and 02 CT 2192 observe, “the City’s ability to levy additional taxes for legitimate governmental purposes is unlimited.” Moreover, plaintiffs in those cases correctly observe that “[b]y providing for refund suits after the first tax has been paid and distributed, the legislature avoided remedies such as injunctions against collection, which could threaten severe disruption to taxing district revenues while the taxpayers’ claims were litigated.” See Clarendon Associates v. Korzen, 56 Ill. 2d 101, 108 (1973). Indeed, petitioners received and have had possession of their proportionate share of the taxes paid under protest by plaintiffs throughout the instant proceedings.
In their reply brief on appeal, petitioners do not dispute that taxing districts have the ability to levy additional taxes and that such levies determine the amount of revenue which they receive. Instead, petitioners respond in their reply brief that “the injury at issue here is based on the loss occasioned by the inevitable delay between the time the tax collector withholds revenue from taxing districts to pay a court-ordered tax refund and the time taxing districts can recoup that lost revenue from the subsequent tax levy or some other revenue source.” Petitioners argue that plaintiffs “ignore the fact that a taxing district is ‘adversely affected’ by a tax refund within the meaning of section 2 — 408(a)(3) precisely because it is deprived of tax revenues, even if only temporarily.”
As plaintiffs in case Nos. 02 CT 2168, 02 CT 2180, and 02 CT 2192 point out in their response brief, the instant appeal marks the first time that petitioners have argued that “delay” involved in waiting for additional revenue is an “adverse effect” giving them an interest in assessment objection refunds. The petitions to intervene do not identify “delay” as a factual basis demonstrating that any refunds awarded in the instant case would adversely affect them. In short, the petitions fail to allege specific facts pursuant to section 2 — 408(a)(3) of the Civil Code indicating how a delay in the receipt of revenue occasioned by a possible refund in the instant case would adversely affect them.
As a final matter, it should be noted that although the petitioners did not expressly seek an increase in the valuation of plaintiffs’ respective properties in the prayers for relief included in their petitions for leave to intervene, petitioners did reserve the right to seek such an increase in their “Brief in Support of Joint Petition for Leave to Intervene” filed with the trial court in case No. 03 COTO 0359. In that brief petitioners state:
“Petitioners will submit one or more appraisal reports from independent appraisers that will aid [the trial] court in establishing the market value of the property and will, in all likelihood, indicate that the Cook County Assessor has fairly, accurately and legally assessed the subject property. Should the evidence indicate that the Subject Property is undervalued, Petitioners will ask this Court to increase the 2001 assessment above the Board of Review’s final 2001 assessment.” (Emphasis added.)
Petitioners do not have a right on remand to seek an increase in the valuation of plaintiffs’ respective properties. Section 23 — 10 of the Property Tax Code provides that “[a]n objection to an assessment for any year shall not be allowed by the court, however, if an administrative remedy was available by complaint to the board of appeals or board of review under Section 16 — 55 or Section 16 — 115, unless that remedy was exhausted prior to the filing of the tax objection complaint.” 35 ILCS 200/23 — 10 (West 2002). Section 16 — 115 of the Property Tax Code, in turn, confers a right upon taxing districts to file a complaint with the Board of Review. It states that “[cjomplaints that any property is overassessed or underassessed or is exempt may be made by a taxing district that has an interest in the assessment to a board of review.” 35 ILCS 200/16 — 115 (West 2002). In the instant case, petitioners did not file a complaint with the Board of Review seeking an increase in the assessments of plaintiffs’ respective properties, and accordingly, they are barred under the exhaustion doctrine codified in section 23 — 10 of the Property Tax Code from now asking the trial court to increase the valuation of the subject properties.
For the reasons previously discussed, I would affirm the trial court’s order denying petitioners’ petitions to intervene. I respectfully dissent.