Du Page County Board of Review of Property Tax Appeal Board

No. 2--95--1534

________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

THE DU PAGE COUNTY BOARD OF ) Appeal from the Circuit Court
REVIEW, ) of Du Page County.
)
Plaintiff-Appellant, )
) No. 94--TX--07
v. )
)
THE PROPERTY TAX APPEAL BOARD, )
DENNIS SKOGSBERGH, KAREN )
SKOGSBERGH, THE MILTON TOWNSHIP )
ASSESSOR, and L.H. LABUS, ) Honorable
) John W. Darrah,
Defendants-Appellees. ) Judge, Presiding.
________________________________________________________________

JUSTICE THOMAS delivered the opinion of the court:

Plaintiff, the Du Page County Board of Review (the Board),
appeals the judgment of the circuit court which affirmed on
administrative review the decision of defendant, the Property Tax
Appeal Board (PTAB), lowering the assessment of property owned by
defendants Dennis and Karen Skogsbergh. The Board contends that
(1) as a matter of law the property owners failed to present clear
and convincing evidence that their property was not assessed
uniformly with other parcels where their evidence consisted solely
of four adjusted comparables; and (2) the decision of the PTAB
lowering the assessment is against the manifest weight of the
evidence.
The Skogsberghs own a single-family residence in Glen Ellyn,
in Milton Township. The house is a tri-level constructed primarily
of brick. The Skogsberghs purchased the house in March 1990 for
$405,000. The Board established a final assessment for the
property of $127,960, reflecting a fair market value of $385,073.
The Skogsberghs appealed to the PTAB, claiming that the
assessment was excessive compared to those of similar properties.
Tax consultant Lawrence Labus was the Skogsberghs' witness before
the PTAB. As part of his testimony, he discussed the assessments
of four comparable properties. All four were similar homes located
in the same subdivision as the Skogsberghs' house.
According to Labus, the Milton Township assessor had placed
the following per-square-foot assessed values on the comparable
properties: $23.81, $24.15, $22.43, and $23.99. Labus
acknowledged that the Skogsberghs' home had more amenities than the
others. His spreadsheet shows that, among other things, the
property at issue had more plumbing fixtures, a larger garage, and
a larger patio than some or all of the comparables. Therefore, he
made cost adjustments to the comparables which raised their
respective values to $24.91, $24.50, $23.37, and $24.72 per square
foot.
Labus testified that he neglected to take into account the
differences in basement size between the subject property and the
comparables. Upon doing so at the hearing, he concluded that the
Skogsberghs' house should be assessed at $24.42 per square foot,
resulting in a total improvement assessment for 1991 of $92,724.
Labus did not make any cost adjustment for the fact that the
Skogsberghs' home is primarily brick while the comparable houses
are primarily frame. He stated that he did not do so because
increases in lumber prices had made frame construction nearly as
expensive as brick construction.
Labus also believed that the land assessment of the subject
property was too high relative to the comparables. The area of the
subject parcel was 13,200 square feet. It was assessed at $26,090,
or $1.977 per square foot. The comparable parcels ranged in size
from 11,700 to 19,740 square feet and had assessments ranging from
$21,490 to $25,020, or from $1.267 to $1.899 per square foot.
The Board of Review presented a grid analysis comparing the
Skogsberghs' property to the comparables. The Board also
introduced the comparables' property cards. In addition, the Board
placed into evidence a fifth comparable, another property from the
same subdivision that had an improvement assessment of $25.68 per
square foot.
The Board's witnesses pointed out that there will be
differences among the properties within a subdivision in terms of
construction and amenities. The subject property is primarily
brick while the comparables are predominantly frame. In addition,
the subject property has an 812-square-foot garage while the
garages of the five comparables range from 506 to 669 square feet.
The subject has 3« bathrooms while the other properties have either
2 or 2« bathrooms. Finally, the subject property has a full
basement, while the comparables have only half or three-quarter
basements.
Board member Lawrence Kearney explained that the assessor
attempts to establish median levels of assessed values based on the
assessor's experience in the real estate market. As an aid to
maintaining median levels of assessments, the assessor rates each
property on the record cards under the category "Building Class."
The subject property has a 1.9 rating, while Labus' comparables are
rated 1.7 and the assessor's comparable is rated 1.7+. The higher
a property's rating, the higher its value.
Land assessments are established on a per-front-foot basis
with an adjustment for a depth factor, Kearney explained. The base
value for each parcel in the subdivision was $135 per front foot.
The Board argued that the comparables established the fairness
of the subject property's assessment. This opinion was based on
the fact that the subject property and the comparables were treated
as uniformly as possible, the fairness and equity of the assessment
were established, and the property owners did not prove their
contention of lack of uniformity by clear and convincing evidence.
The PTAB found that a reduction in the land assessment was not
warranted since all the parcels were assessed uniformly at $135 per
front foot with an adjustment for depth. However, the PTAB reduced
the improvement assessment from $101,870 to $84,650, thus reducing
the total assessment from $127,960 to $110,740.
The Board filed a complaint for administrative review in the
circuit court of Du Page County. The court held that the PTAB's
decision was neither contrary to law nor against the manifest
weight of the evidence. The Board filed a timely notice of appeal.
On appeal, the Board first contends that the PTAB's decision
was legally erroneous. The Board argues that a lack of uniformity
in assessment must be proved by clear and convincing evidence and
that, as a matter of law, four comparables taken from the same
subdivision as the subject property cannot constitute clear and
convincing evidence.
The Illinois Constitution requires uniformity of taxation.
Ill. Const. 1970, art. IX, 4(a). The principle of uniformity
requires equality in the burden of taxation. Kankakee County Board
of Review v. Property Tax Appeal Board, 131 Ill. 2d 1, 20 (1989).
This requires equality of taxation in proportion to the value of
the property taxed. Apex Motor Fuel Co. v. Barrett, 20 Ill. 2d 395, 401 (1960). It prohibits taxing officials from valuing one
kind of property within a taxing district at a certain proportion
of its true value while valuing the same kind of property in the
same district at a substantially lesser or greater proportion of
its true value. Kankakee County Board of Review, 131 Ill. 2d at
20. The taxpayer who objects to an assessment on the basis of lack
of uniformity bears the burden of proving the disparity of the
assessments by clear and convincing evidence. Kankakee County
Board of Review, 131 Ill. 2d at 22.
Under the Administrative Review Law, judicial review of agency
decisions extends to all questions of law and fact presented by the
record. 735 ILCS 5/3--110 (West 1994). An agency's factual
findings are deemed prima facie true and correct and should not be
disturbed on review unless they are against the manifest weight of
the evidence. Lake County Board of Review v. Property Tax Appeal
Board, 192 Ill. App. 3d 605, 613 (1989). However, an agency's
conclusions on questions of law are not binding on the courts.
Consequently, review of legal issues is de novo. Illini Country
Club v. State Property Tax Appeal Board, 263 Ill. App. 3d 410, 416-
17 (1994).
The Board contends that we should review the PTAB's decision
de novo. According to the Board, since the essential facts were
undisputed, the PTAB and the trial court were faced with only a
question of law: whether the four adjusted comparables constituted
clear and convincing evidence that the subject property was not
uniformly assessed.
In Kankakee County Board of Review, the supreme court noted
that the uniform assessment requirement mandates that property not
be assessed at a substantially greater proportion of its value when
compared to similar properties located within the taxing district.
Kankakee County Board of Review, 131 Ill. 2d at 21. The Board
argues that the relevant "taxing district" is Milton Township,
which contains approximately 37,000 tax parcels. According to the
Board, the use of four comparables, all located in the same
subdivision as the subject property, cannot, as a matter of law,
provide clear and convincing evidence that the subject parcel is
not uniformly assessed within the township as a whole. We
disagree.
Initially, we reject the Board's underlying contention that
the PTAB committed an error of law by relying on Labus' four
comparables. The Appellate Court, Fourth District, recently
rejected a similar contention in Illini Country Club. There, the
taxpayers had to prove by clear and convincing evidence that the
assessments of their golf courses were excessive. In attempting to
do so, the taxpayers presented the testimony of an appraiser who
identified sales of 10 and 15 comparable properties, respectively.
The plaintiffs contended that the case involved a determination of
whether an improper method of valuation was used, a question of
law. Illini Country Club, 263 Ill. App. 3d at 417. The court
rejected this argument, stating:
"Even though when facts are undisputed a question of law is
created and the agency's findings are not binding on the
courts [citation], in the case at bar, there is dispute over
the fair cash value of the subject properties. The [PTAB] had
to assess the credibility of the witnesses and resolve the
conflicts in the evidence. Therefore, a question of fact
based on the difference of opinion of the fair cash value is
the issue here." Illini Country Club, 263 Ill. App. 3d at
417.
Similarly, here, the only issue is whether the PTAB placed the
proper valuation on the property. The question whether the four
comparable sales did or did not establish that the subject property
was not uniformly assessed was a factual issue for the PTAB to
resolve. Although the facts were undisputed in the sense that the
parties agreed about the physical dimensions and characteristics of
the subject property and the comparables, both parties presented
expert testimony to the effect that the comparables supported their
respective valuations. This required the PTAB to assess the
credibility of the witnesses and the weight of the evidence. For
example, Keating testified that the fact that the Skogsberghs' home
was constructed primarily of brick while the comparable properties
were largely frame was a significant factor in valuing the
property. On the other hand, the Skogsberghs' expert, Labus,
testified that he did not adjust for this factor because increases
in the price of lumber had rendered frame construction nearly as
expensive as brick. The PTAB's decision turned largely on the
resolution of these types of factual questions.
Moreover, we note that the Board fails to cite any authority
for its related contentions that four comparables are simply too
few to establish a lack of uniformity and that the comparables must
be drawn from throughout the township rather than from the
immediate vicinity of the subject property. The PTAB responds that
by the Board's logic, since the township contains 37,000 parcels,
at least 19,000 comparables would be required to establish a lack
of uniformity by a preponderance of the evidence. Moreover, since
clear and convincing evidence is required, the Board's argument
would require at least 25,000 parcels to be compared before a lack
of uniformity could be established.
In its reply brief, the Board characterizes the PTAB's
argument as "preposterous and unfair." However, the Board never
indicates how many comparables would be sufficient, simply falling
back on its assertion that four are definitely too few.
This court has held that property selected for comparison must
in fact be similar in kind and character and must be similarly
situated to the property to be valued. Du Page Bank & Trust Co. v.
Property Tax Appeal Board, 151 Ill. App. 3d 624, 630 (1986). 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 of 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 property." 86 Ill. Adm.
Code 1910.65(b) (1991).
Under the PTAB's rules, and as a matter of common sense, one
of the factors which makes a given parcel comparable is its
proximity to the subject parcel. The Board fails to explain how,
if the subject parcel was not assessed uniformly compared to
properties within its immediate neighborhood, evidence of the
assessment of parcels in remote areas of the township would alter
this conclusion. Those parcels would almost necessarily be less
similar than the comparables already in evidence. In any event, if
the Board believed that evidence regarding other parcels would show
that the Skogsberghs' parcel was assessed uniformly compared with
the township as a whole, it could have presented this evidence at
the PTAB hearing. Instead, the Board presented only one additional
comparable--also in the same subdivision as the Skogsberghs'
property--and argued that these five comparables established that
the subject parcel was uniformly assessed.
For similar reasons, the Board cannot establish that four
comparable properties is an insufficient basis of comparison. As
noted, the Board presented only one additional comparable and
argued that those five supported the original assessment.
Generally, questions of the weight and sufficiency of the evidence
are for the trier of fact. "If there is any evidence which fairly
supports the agency's findings, the decision must be sustained on
review." Illini Country Club, 263 Ill. App. 3d at 417.
In Kankakee County Board of Review, the supreme court held
that the taxpayer, Riverwoods, failed to sustain its burden to show
that its property was not uniformly assessed. There, the taxpayer
presented evidence of only two comparable properties. Although the
court rejected the taxpayer's contention, it did not do so because
the number of allegedly comparable assessments was insufficient.
Rather, the court held that "[t]here is no evidence in the record
to suggest that the two subsidized projects are comparable to
Riverwoods' property." Kankakee County Board of Review, 131 Ill. 2d at 22. The clear implication of this holding is that the
critical consideration is not the number of allegedly similar
properties, but whether they are in fact "comparable" to the
subject property.
Here, Labus' comparables, as well as the assessor's
comparable, were all similar styles of homes with similar amenities
located in the same subdivision as the Skogsberghs' home. Labus
further adjusted the comparables' assessments to reflect
differences in amenities. Additional evidence regarding properties
outside the immediate vicinity would have been less relevant, not
more, to the question whether the Skogsberghs' property was
uniformly assessed. Thus, the PTAB's decision was not erroneous as
a matter of law.
The Board further contends, however, that the PTAB's decision
is against the manifest weight of the evidence. The Board
maintains that the PTAB's valuation translates to a rate of $22.30
per square foot, which is lower than any of the allegedly
comparable assessments and lower than the amount that Labus
requested.
To reiterate, an agency's findings of fact are prima facie
true and correct and should not be disturbed on review unless they
are against the manifest weight of the evidence. Lake County Board
of Review v. Property Tax Appeal Board, 192 Ill. App. 3d 605, 613
(1989). A mere difference of opinion as to value will not be
sufficient to warrant judicial interference in the assessment
process. Kankakee County Board of Review, 131 Ill. 2d at 14.
The PTAB concedes that on a square-foot basis its valuation is
lower than that of any of the comparables. However, it points out
that its overall assessment, $110,740, is within the upper range of
the comparables, which ranged from $91,750 to $114,480.
We agree with the PTAB that, while square footage is one
factor in determining value, it is not the only one. The
cornerstone of uniform assessment is the fair cash value of the
property in question. Kankakee County Board of Review, 131 Ill. 2d
at 10. The definition of fair cash value is the price at which
ready, willing, and able buyers and sellers would agree.
Springfield Marine Bank v. Property Tax Appeal Board, 44 Ill. 2d 428, 430 (1970). We note that, as a practical matter, few sales of
improved real property are conducted on a per-square-foot basis.
The overall value of a home may be affected by many factors other
than its physical size. For this reason, a one-square-foot
increase in the size of the home will not necessarily be reflected
in a proportional increase in its value. Because the PTAB's
overall assessment of the subject property was within the range
established by the comparables, it was not against the manifest
weight of the evidence, and the circuit court's judgment affirming
that decision was proper.
The judgment of the circuit court is affirmed.
Affirmed.
GEIGER and HUTCHINSON, JJ., concur.