Chicago Park District v. City of Chicago

PRESIDING JUSTICE RIZZI,

dissenting:

I concur in the majority opinion to the extent that it holds that the appeal is not moot, that the Park District has standing to sue, and that the city, as a home rule unit, has the power to impose the tax at issue here. However, I disagree with the conclusion of the majority that the Park District has failed to show that it is entitled to the issuance of a preliminary injunction. Accordingly, I would reverse the order of the trial court denying the issuance of a preliminary injunction, and remand the case for the entry of a preliminary injunction and further proceedings to determine whether a declaratory judgment that the Chicago boat-mooring tax is unconstitutional should be entered in favor of the Park District.

In order to obtain a preliminary injunction, the movant must establish irreparable injury and the likelihood of success on the merits. Likelihood of success on the merits does not mean a showing which will in all events warrant relief in the final hearing. Rather, it means that the movant must demonstrate that he is probably entitled to the relief prayed for if the proof should sustain his allegations. In addition, the movant must establish that the granting of the preliminary relief outweighs any possible injury which the opposing party might suffer by its issuance. (The Packaging House, Inc. v. Hoffman (1983), 114 Ill. App. 3d 284, 287, 448 N.E.2d 947, 949; Booth v. Greber (1977), 48 Ill. App. 3d 213, 217, 363 N.E.2d 6, 9.) Finally, there must be no adequate remedy at law. Best Coin-Op, Inc. v. Old Willow Falls Condominium Association (1983), 120 Ill. App. 3d 830, 834, 458 N.E.2d 998, 1001.

I believe that the Park District has adequately demonstrated that it will be irreparably harmed by the city’s boat-mooring tax, which imposes upon any watercraft moored or docked in the Park District’s harbor system a tax equal to 50% of the fee charged by the Park District. Although the tax is imposed on those who dock and moor their vessels and not on the Park District itself, I believe that the record sufficiently establishes that the 50% tax will unconstitutionally usurp the Park District’s fee authority and unreasonably interfere with its statutory obligation to provide harbors for the recreational use and benefit of the public. See Ill. Rev. Stat. 1983, ch. 105, par. 333.23m.

The Chicago Park District is a unit of local government (Ill. Const. 1970, art. VII, sec. 1), and it has only those powers granted by law (Ill. Const. 1970, art. VII, sec. 8). The powers are enumerated in that portion of the Park District Code which specifically concerns the Chicago Park District (Ill. Rev. Stat. 1983, ch. 105, par. 333.1 et seq.). In particular, sections 26.1 through 26.10 (Ill. Rev. Stat. 1983, ch. 105, pars. 333.231 through 333.23u) relate to the Park District’s powers in regard to harbors for recreational purposes. Among the general powers granted to the Park District are the rights and powers to furnish complete harbor facilities and services, including mooring and docking facilities (Ill. Rev. Stat. 1983, ch. 105, par. 333.23n(a)) and to establish and collect fees for all facilities and services (Ill. Rev. Stat. 1983, ch. 105, par. 333.23n(g); see MacNeil v. Chicago Park District (1948), 401 Ill. 556, 82 N.E.2d 452).

The Park District is authorized to borrow money by issuing bonds in anticipation of its revenue from its harbors for recreational purposes and related facilities. The bonds must be authorized by ordinance. (Ill. Rev. Stat. 1983, ch. 105, par. 333.23q.) This section further provides that:

“No holder of any bond issued under this law shall ever have the right to compel any exercise of taxing power of the Chicago Park District to pay the bond or interest thereon. Each bond issued under this section is payable solely from the revenue derived from the operation of the harbor and facilities. The bond shall not in any event constitute a debt of the Chicago Park District within any statutory or constitutional limitations, and this shall be plainly stated on the face of each bond.”

In adopting the ordinance necessary for the issuance of bonds, the Park District may provide for covenants which shall be part .of the contract between the Park District and the bondholders. In general, the covenants pertain to obligations to be undertaken by the Park District “as may be deemed necessary or desirable to assure a successful and profitable operation of the harbor and facilities, and prompt payment of the principal of and interest upon the bonds ***.” Ill. Rev. Stat. 1983, ch. 105, par. 333.23r(l).

The statutory scheme further provides that when the revenue bonds are issued, “the revenues received from the operation of the harbor or facilities shall be deposited in a separate fund which shall be used only in paying the principal and interest of these revenue bonds and reserves therefor and the cost of maintenance, operation and depreciation of the harbor and facilities ***.” (Ill. Rev. Stat. 1983, ch. 105, par. 333.23s.) Any revenues in excess of those necessary to fulfill these requirements “may be used for rehabilitation of the harbor and facilities, necessary reconstructions and expansion, construction of new facilities or for retirement of any outstanding bonds issued for harbor purposes.” (Ill. Rev. Stat. 1983, ch. 105, par. 333.23s.) Revenues remaining after all such bonds have been paid may be transferred to the Park District’s general corporate fund. (Ill. Rev. Stat. 1983, ch. 105, par. 333.23s.) Finally the Park District may sell or pledge its revenue bonds to secure grants or loans from the Federal government or its agencies. Ill. Rev. Stat. 1983, ch. 105, par. 333.23t.

It is within this narrow statutory framework that the Park District must seek to secure its revenues for its recreational harbors. For this reason, I believe that taxes imposed by the city must be reasonable so they do not interfere with the Park District’s statutory right, granted pursuant to the constitution, to generate revenue. In my opinion, the Park District has adequately shown that it will be irreparably harmed in its fund raising abilities by the city’s 50% boat-mooring tax. As the Park District argues, the tax has the effect of limiting the fees that it can charge boat owners who moor or dock their boats .in the Park District’s recreational harbors. Each fee increase approved by the Park District as being an appropriate charge for its facilities is automatically increased by 50% pursuant to the tax. Thus, as the Park District states, if it decides that “this unanticipated acceleration of [its] fee schedule is too substantial of a burden on the public’s right to enjoyment of the waters, [one of its] only alternative^] would be to reduce the base fee ***” to an amount that would compensate for the 50% tax increase, but this in turn would reduce the Park District’s revenue.

Alternatively, the Park District contends, if it determines that a reduction in its fees is not feasible, then the effect of the city’s 50% tax will be to inhibit the Park District’s ability to raise funds through the issuance of bonds. The likely result of the boat-mooring tax will be that boat owners will no longer seek to moor or dock their vessels in Park District harbors. In this regard, it should be pointed out that it is the policy of the Park District to grant a full refund of payments made for mooring fees if it receives the request prior to May 15 and. to reimburse 50% of the fee paid if the request for a refund is made between May 15 and June 30. Moreover, according to the Park District, the waiting list for mooring spots has already been significantly reduced by the construction of additional harbor facilities. Absent a substantial waiting list, potential bondholders are not likely to be attracted, since the bonds are issued on the basis of anticipated revenues of a harbor and its facilities. Thus, if it appears that harbors may not be utilized to the fullest extent possible, the Park District’s potential bond market may evaporate, especially since the bonds do not constitute a debt of the Park District (Ill. Rev. Stat. 1983, ch. 105, par. 333.23q).

In addition, I believe that the Park District has adequately demonstrated for the purpose of the issuance of a preliminary injunction that the city’s 50% tax is so oppressive that it unreasonably interferes with the Park District’s statutory authority to maintain and operate harbors for the recreational use and benefit of the public. The 50% tax may well serve to eliminate from the Park District’s harbors those boat owners who have channeled limited discretionary income into the purchase of a pleasure boat but who will no longer be able to afford the exorbitant cost of mooring or docking. Plainly, the legislature did not intend that the Park District harbors become solely the province of the wealthy.

While the city, like the Park District, is a unit of local government (Ill. Const. 1970, art. VII, sec. 1), the city is also a home rule unit (Ill. Const. 1970, art. VII, sec. 6). As such, it is imbued with extensive powers, including a broad revenue-raising power. (Ill. Const. 1970, art. VII, sec. 6; Paper Supply Co. v. City of Chicago (1974), 57 Ill. 2d 553, 572, 317 N.E.2d 3, 12.) I do not believe, however, that the city can run rampant with its taxing power so as to encroach upon the more restricted fund raising avenues available by statute to another coordinate unit of local government or to unreasonably interfere with the function of another coordinate unit of local government. Accordingly, I can only conclude that the Park District has adequately alleged that the burden imposed on it by the city’s 50% boat-mooring tax is not merely incidental (see Board of Education v. City of Peoria (1979), 76 Ill. 2d 469, 477, 394 N.E.2d 399, 403) and that the tax impermissibly frustrates the statutory rights and powers granted to the Park District by the legislature pursuant to the constitution.

For all of the above stated reasons, I would find that the Park District has sufficiently established that it will be irreparably harmed if the preliminary injunction is not issued and that it has a likelihood of success on the merits in the declaratory judgment action. As for the remaining two prerequisites for the issuance of a preliminary injunction, it is clear that both have been met. The lack of an adequate legal remedy is evident from the fact that the 50% tax will not only affect potential bond sales but will also affect the Park District in regard to its obligations to the public to provide and maintain recreational harbors. Clearly, this is a situation where the injury cannot be measured by pecuniary standards. (Best Coin-Op, Inc. v. Old Willow Falls Condominium Association (1983), 120 Ill. App. 3d 830, 834, 458 N.E.2d 998, 1001.) Regarding the last requirement, the Park District has sufficiently demonstrated that the granting of the preliminary relief outweighs any possible injury which the city may suffer by its issuance. No harm is accruing to the city other than that which would be inherent whenever the assessment or collection of any tax is enjoined.

Although the decision to grant or deny a preliminary injunction rests within the sound discretion of the trial court, there must be a sufficient showing to sustain the order of the trial court granting or denying the relief sought. (The Packaging House, Inc. v. Hoffman (1983), 114 Ill. App. 3d 284, 287, 448 N.E.2d 947, 949.) I do not believe that the record before us presents a sufficient basis on which to sustain the order of the trial court denying the relief sought. Rather, the Park District has sufficiently shown that the 50% tax will unconstitutionally encroach upon the Park District’s limited fund-raising abilities and unreasonably interfere with its statutory responsibility for providing recreational harbors for the use and benefit of the public. I would therefore reverse the order of the trial court and remand the case with directions to grant the preliminary injunction sought by the Park District, and for further proceedings to determine whether a declaratory judgment declaring the Chicago boat-mooring tax unconstitutional should be entered in favor of the Park District.