Tech Alloy Co. v. Property Tax Appeal Board
State: Illinois
Court: 2nd District Appellate
Docket No: 2-96-0966
Case Date: 07/31/1997
No. 2--96--0966
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
TECHALLOY COMPANY, INC. ) Petition for Review of an
) Order of the Property Tax
Petitioner-Appellant, ) Appeal Board.
)
v. ) No. 93--1281--R--1
)
THE PROPERTY TAX APPEAL BOARD; )
MAX COFFEY, SHARON THOMPSON, )
CHARLES CAIN, HOMER HENKE, )
MICHAEL BROWN, as Chairman and )
Members of the Property Tax )
Appeal Board; THE McHENRY )
COUNTY BOARD OF REVIEW; MARENGO )
FIRE PROTECTION DISTRICT; )
MARENGO-UNION CONSOLIDATED )
SCHOOL DISTRICT No. 165; and )
MARENGO COMMUNITY HIGH SCHOOL )
DISTRICT No. 154, )
)
Respondents-Appellees. )
________________________________________________________________
JUSTICE INGLIS delivered the opinion of the court:
Petitioner, Techalloy Company, Inc., appeals the decision of
respondent, Illinois Property Tax Appeal Board (PTAB), denying
petitioner's request to reduce the assessed value of its property
to zero for taxation purposes. We affirm.
Petitioner is a wire products manufacturer. Its manufacturing
facility, consisting of several masonry, steel, and wood buildings
totaling 107,600 square feet, is located on a 41.38 acre parcel of
land in Union, Illinois. For the tax year 1993, the Coral Township
assessor assessed petitioner's property at $731,220, reflecting a
fair market value of $2,193,660. Petitioner appealed the
assessment to the McHenry County Board of Review (Board of Review).
The Board of Review denied petitioner's appeal. On March 16, 1994,
petitioner appealed the Board of Review's decision with the PTAB.
In its appeal to the PTAB, petitioner filed an appraisal of
its property asserting that the correct assessment for its property
was $0, reflecting a fair market value of $0 due to the costs to
remove contamination caused by pollution. Petitioner's appraisal
also indicated that the fair market value of the property in the
absence of the pollution was $1,360,000 and that cleanup monitoring
costs were $1,710,000, which, when subtracted from the fair market
value, resulted in a negative market value.
Respondents, Marengo-Union Consolidated School District No.
165, Marengo Community High School District No. 154, and Marengo
Fire Protection District (intervenors), requested leave to
intervene in petitioner's appeal based on their interest as taxing
districts. Intervenors filed their own appraisal of petitioner's
property which determined that, assuming no environmental
contamination, the property had a fair market value of $1,600,000.
Intervenors' appraisal specifically noted that the impact of
environmental contamination was not included in the analysis of the
property. It also noted that petitioner had not given intervenors
any information concerning the severity of the environmental
contamination or the cost of curing it.
The matter proceeded to a hearing before the PTAB on March 20,
1996. The parties stipulated that the correct tax assessment,
excluding contamination, was $493,333, reflecting a fair market
value of $1,480,000. The only issues before the PTAB were whether
the alleged contamination warranted a reduction in the fair market
value and tax assessment of the facility and, if so, the amount of
the reductions.
Petitioner called Carlos Serna (Serna), a hydrogeologist, as
its first witness. Intervenors objected to Serna's testimony
because petitioner had not provided the intervenors' appraisers
with any information regarding contamination despite the
appraisers' repeated attempts to obtain the information to use in
preparing their appraisal. The PTAB hearing officer reserved his
ruling and permitted Serna to testify.
Serna testified that he was employed by Weston Corporation
(Weston), an environmental consulting firm. Serna first became
involved with petitioner in 1989 when Weston was hired to study
petitioner's problem. Serna's responsibility was solving the
problem of groundwater contamination, his area of expertise as a
hydrogeologist.
Serna's first task was to close certain "RCRA units" at
petitioner's facility. RCRA (an acronym for the federal Resource
Conservation and Recovery Act (42 U.S.C. 6921 et seq. (1988))) is
a regulatory process by which the federal government and the state
control the management and disposal of hazardous waste. Serna
recounted that petitioner's property had previously been used as a
hazardous waste treatment facility. He estimated that the
contamination began during the 1950s and probably stopped during
the mid-1970s. Serna stated that petitioner had no immediate
intention to close the facility, which had been fully operational
since 1989. He indicated that only one residential property had
been affected by the groundwater contamination; no other properties
had been affected, and petitioner installed a deep well for the
affected homeowner. Serna noted that petitioner's property was not
listed in the CERCLA (the federal Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601
et seq. (1988))) database, but was listed as an RCRA corrective
action facility. While petitioner's property was no longer used to
treat hazardous waste, according to federal procedures, it was
required to close certain hazardous waste treatment units of the
facility. Serna's own involvement began with the closure of the
treatment units regulated by the Illinois Environmental Protection
Agency.
During the process of closing the RCRA units, Weston
identified the extent of the groundwater contamination problems by
performing on- and off-site studies. After closing the RCRA units,
the United States Environmental Protection Agency (USEPA) became
involved in an enforcement action against petitioner resulting in
the entry of a 50-page consent order requiring petitioner to
investigate and remedy the groundwater and soil contamination.
Serna's testimony turned to five pages from reports he had
prepared and which petitioner's appraiser used in his determination
of the fair market value of the facility. The first two pages
contained a map showing concentrations of various groundwater
contaminants taken from various sampling sites on and off the
facility and a legend explaining the symbols on the map. Serna
testified that, from the sampling sites, boundary lines had been
drawn on the map indicating the areas in which the concentrations
of various contaminants exceeded the maximum allowable levels set
by the United States Environmental Protection Agency.
Serna testified that the next two documents concerned the
projected schedule and estimated costs for the implementation of
the consent order. The consent order consisted of three phases:
(1) interim measures; (2) a facility investigation pursuant to RCRA
regulations; and (3) a corrective measure study. Serna explained
that petitioner was planning to install an extraction well to
collect contaminated groundwater which had moved off-site and pump
it to a treatment plant. Petitioner had 270 days in which to
install the system in order to comply with the consent order.
Petitioner had incurred approximately $112,000 in design costs for
the system and would incur additional costs for the operation and
maintenance of the system after it was installed. Serna testified
that the total costs for the interim measures would be
approximately $1.3 million, with $1 million to be incurred within
the year. The costs for the remaining phases of the consent order
would be about $1.8 million incurred over 25 years.
On cross-examination, Serna stated that he did not remember
any telephone conversations with intervenors' appraiser in 1994,
nor did he recall any attempts by intervenors' appraiser to obtain
information from Weston regarding environmental contamination at
petitioner's facility. He also testified that the contamination
did not affect the water supply at the facility because it drew
water from a deeper, uncontaminated source and that it posed no
threat to petitioner's employees. Serna admitted that none of the
documents used by petitioner's appraiser contained any information
concerning the permissible concentrations of the relevant
contaminants around petitioner's facility under either federal or
state standards, nor were they contained in the appraiser's report.
Serna also testified on cross-examination that petitioner
purchased the facility in 1989 or 1990 and afterwards learned of
the contamination. He stated, however, that petitioner had hired
another consultant to perform an environmental assessment of the
facility before it was purchased in 1989.
Serna testified that he did not know who was responsible for
paying for the cleanup. He agreed that there were no invoices or
other supporting documents concerning the costs of the components
of the corrective action; the documents he had provided to
petitioner's appraiser were simply estimates of the costs.
Petitioner introduced no documentary evidence with Serna, such as
copies of his reports, or the consent order with the United States
Environmental Protection Agency.
Petitioner next called Michael Lipowsky, who performed the
appraisal analysis of petitioner's property. Lipowsky stated that,
in preparing his appraisal, he had relied upon two articles
concerned with the effect of environmental contamination on fair
market value and the five pages of documentation contained in
Addendum G to his appraisal. Lipowsky also testified that he had
relied on conversations with petitioner in order to perform his
evaluation of the contamination. Lipowsky's appraisal did not
cover what, if any, post-cleanup procedures are required by the
United States Environmental Protection Agency; he stated that he
relied on conversations with Weston for that information. He had
not reviewed the consent order, nor was a copy attached to his
appraisal. Lipowsky did not know whether any of the estimated
cleanup costs had actually been expended, nor could he say who was
ultimately responsible for the cleanup costs. He had not obtained
verification of the contamination from either the United States or
Illinois Environmental Protection Agencies. Petitioner rested its
case following Lipowsky's testimony.
The intervenors called the two appraisers who prepared their
appraisal of petitioner's property. Dennis Hawkinson (Hawkinson)
was called first and testified that one of petitioner's employees
briefly mentioned the contamination to him as he was inspecting
petitioner's plant. Hawkinson asked the plant manager if he could
obtain any documentation or reports about the contamination at the
facility. The plant manager referred Hawkinson to Serna. When
Hawkinson telephoned Serna requesting environmental reports and
other information about the contamination, Serna maintained that he
was not at liberty to release any of the requested information and
referred him to Mr. Lopes, another of petitioner's employees.
Hawkinson repeatedly attempted to obtain information about
environmental audits, cleanup schedules, and projected costs. On
August 4, 1994, Hawkinson requested the information from Lopes and
was informed it would be mailed to him. After a couple of weeks
had passed with no information, Hawkinson again telephoned Lopes,
leaving a number of messages. On August 31, 1994, Hawkinson wrote
to Lopes, requesting the environmental documentation in order to
complete his appraisal. Hawkinson never received a response.
Hawkinson testified that the only information about the
contamination at petitioner's facility was that contained in
petitioner's appraisal. Hawkinson stated that the Uniform
Standards of Professional Appraisal Practice prohibited him from
relying on that information. He stated that there simply was
insufficient information available to him to properly analyze the
effect of the contamination on the value of petitioner's property.
He indicated that had the information been provided to him, it
would take about 60 days to analyze it.
Next, intervenors called Frank Harrison (Harrison), who
testified that Lipowsky had not complied with the standard
appraisal rules with respect to the contamination issues as his
appraisal contained only a very small amount of documentation
relating to the environmental issues raised by the contamination at
petitioner's facility. Harrison stated that he "wouldn't dare"
render an appraisal on the issue of contamination using only the
information presented in the Lipowsky appraisal. He noted that
Lipowsky had apparently relied on conversations and other
information not included in the appraisal report. He was unable to
conclude whether Lipowsky had complied with the standard appraisal
rules. Nevertheless, Harrison stated that he believed giving an
appraisal based only on the information contained in the Lipowsky
document would be negligent and possibly a violation of the ethics
rules governing appraisers as the report could be misleading.
Harrison also noted that, if a property were contaminated to the
extent that it had no value, then it would be condemned and shut
down.
After the close of evidence, the parties submitted post-
hearing briefs. Petitioner attached a copy of a letter dated
February 19, 1996, which it delivered to intervenors' counsel
offering finally to supply intervenors' appraisers with the
environmental contamination information they had requested in the
summer of 1994. Petitioner did not, however, include any of the
offered information in the letter.
The PTAB issued its decision on July 12, 1996. The PTAB
accepted the stipulation of the parties and, without taking account
of the alleged contamination, lowered the petitioner's assessment
from $731,220 to $493,333. The PTAB concluded, however, the
evidence did not support petitioner's contention that contamination
had reduced the market value of the property to zero. Noting the
paucity of the evidence of contamination at petitioner's facility,
the PTAB found the "evidence to be unsupported and
unsubstantiated." The PTAB based its finding on petitioner's
failure to produce the entire environmental report, the consent
decree, or any substantive evidence of actual costs incurred in
1993 for the cleanup of the contamination. Petitioner's timely
petition for direct review in this court followed.
We first review the legal standards by which the PTAB rendered
its decisions and the principles of judicial review of an
administrative decision. The PTAB "is required to decide the
correct assessment of the subject property on the basis of the
evidence received at the hearing." Illini Country Club v. Property
Tax Appeal Board, 263 Ill. App. 3d 410, 416 (1994). The taxpayer
(in this case, petitioner) has the burden of proving that the
assessment is excessive, and the proof must be by clear and
convincing evidence. Illini Country Club, 263 Ill. App. 3d at 416.
When conducting an administrative review, the reviewing court
accepts the agency's finding and conclusions on questions of fact
as prima facie true and correct. 735 ILCS 5/3--110 (West 1994).
The reviewing court's scope of review is limited to determining
whether the administrative agency's findings of fact are against
the manifest weight of the evidence. Abrahamson v. Illinois
Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992).
The reviewing court's function is not to reweigh the evidence or
reassess the credibility of the witnesses, nor may it substitute
its judgment for that of the administrative agency; rather, the
reviewing court's function is to insure that the administrative
agency arrived at an objective, rational decision after a fair
hearing at which competent evidence was introduced. Mead v. Board
of Review, 143 Ill. App. 3d 1088, 1095 (1986).
The administrative agency's decision is against the manifest
weight of the evidence if "all reasonable and unbiased persons,
acting within the limits prescribed by law and drawing all
inferences in support of the finding, would agree that the finding
is erroneous and that the opposite conclusion is clearly evident."
Jagielnik v. Board of Trustees of Police Pension Fund, 271 Ill.
App. 3d 869, 875 (1995). That the reviewing court might have ruled
differently or an opposite conclusion is reasonable will not
justify the reversal of the administrative agency's findings.
Sindermann v. Civil Service Comm'n, 275 Ill. App. 3d 917, 922
(1995). If the administrative agency's decision is supported by
evidence contained in the record, it should be affirmed.
Abrahamson, 153 Ill. 2d at 88.
The reviewing court may also reverse an administrative
agency's decision if it has erred as a matter of law. The
reviewing court does not give an administrative agency's legal
conclusions the same deference as it gives to the agency's factual
conclusions. Jagielnik, 271 Ill. App. 3d at 875.
With the foregoing principles in mind, we next turn to
petitioner's contentions. Petitioner's argument on appeal is that
the PTAB's decision was against the manifest weight of the
evidence. Petitioner contends that the PTAB raised its burden of
proof by requiring certain documentary evidence "above and beyond
the evidence produced at [the] hearing to establish the effect of
the contamination." Petitioner also asserts that the PTAB ignored
the uncontradicted and unimpeached evidence of environmental
contamination presented by its expert witness, Serna. In a related
vein, petitioner asserts that the testimony of intervenors'
appraisers also failed to controvert that of petitioner's
appraiser, and, thus, the PTAB ignored this evidence as well.
Finally, petitioner charges that the PTAB acted in an arbitrary and
capricious manner by noting the absence of substantive evidence
explaining the actual costs petitioner incurred during cleanup
activities and failing to require petitioner to present new or
additional evidence of actual cleanup costs incurred during 1993.
We first note that, in addition to arguing that the PTAB's
decision was not against the manifest weight of the evidence,
intervenors also argue that, on grounds of public policy, we should
reject petitioner's arguments. Intervenors urge that taxpayers
should not have to subsidize the cleanup of petitioner's pollution
through property tax reductions. The parties indicate that this
would be an issue of first impression for the courts of this State.
We do not need to reach this novel issue, however, because we
conclude that the PTAB's decision was not against the manifest
weight of the evidence.
Petitioner first points to three statements made by the PTAB
in its memorandum of decision. The PTAB stated that (1) petitioner
"failed to provide the entire environmental report which should
have been produced by Weston"; (2) petitioner "failed to produce
the consent decree, between [petitioner] and the USEPA ***. It
seems that this would be an important piece of documentation"; and
(3) petitioner failed to provide "documentation explaining what
party was genuinely responsible for the payment of the remediation
procedures." Petitioner contends that the PTAB erred as a matter
of law in making each of these three statements, asserting that the
PTAB impermissibly increased the petitioner's burden of proof by
requiring evidence in addition to that which petitioner produced at
the hearing. We disagree.
It is helpful to place the statements in the full context of
the PTAB's decision. The PTAB stated, in pertinent part:
"After hearing the testimony and reviewing the record,
the [PTAB] finds that it has jurisdiction over the parties and
the subject matter of this appeal. Based on all of the
evidence contained in the record, the [PTAB] further finds
that, based on the parties' stipulation agreement, a reduction
is warranted. The [PTAB] does not, however, find that a
further reduction was supported by [petitioner's] evidence of
the subject's site contamination. In support of its
contamination argument, [petitioner] presented the testimony
of two expert witnesses. The first witness offered by
[petitioner] was a geologist/hydrogeologist from the Weston
Corporation, a national/international environmental consulting
firm. The witness testified [that] the Weston Corporation
worked with companies to solve their environmental problems
dealing in the area of hazardous waste. The witness stated
his specialty was in the area of ground water contamination.
In summary, the substance of the witness'[] testimony included
information regarding [petitioner's] consent decree with the
USEPA, the chemicals present on the subject site[,] and the
three[-]step plan designed by Weston for the contamination
clean-up, which included the schedule and costs of the
operation.
The second witness offered by the appellant was the
preparer of [petitioner's] appraisal of the subject property.
He testified to the four forces affecting value and identified
one of those force[s] to be environmental forces such as
topography, climate conditions and toxic contaminants. As a
part of his appraisal, the witness performed an analysis of
the loss in value to the subject property caused by the
alleged contamination. Using the Assessment Digest, which
outlined a methodology to measure the impacts of environmental
conditions on real property, and the evidence provided by the
Weston Corporation, the witness analyzed the contamination
evidence and its effect on the subject's market value. The
appraiser concluded the cost to cure the contamination problem
at the subject site caused the subject property to have a
negative market value as of January, 1993.
The [PTAB] finds the appellant failed to provide
substantive evidence to support its claim that the subject
property's market value was zero due to the contamination
located on the subject site. The only evidence contained in
the record concerning the contamination problem consists of
two letters explaining the potential costs which could be
incurred by [petitioner], a schedule of work to be done by
Weston which also detailed the time frame and costs to be
incurred, and a groundwater map survey detailing the types and
levels of chemicals present. This was the evidence
[petitioner's] appraiser relied on when he performed his loss
in value analysis of the subject property. The [PTAB] finds
this evidence to be unsupported and unsubstantiated.
[Petitioner] failed to provide the entire environmental report
which should have been produced by Weston. Instead,
[petitioner] only produced three pages of documentation which
does not explain the federal or state standards regulating the
types of chemicals and the acceptable levels of the chemicals
discussed by Weston's representative and expert witness.
Furthermore, [petitioner] failed to produce the consent
decree, between [petitioner] and the USEPA, which was
discussed by [petitioner's] expert witness. It seems that
this would be an important piece of documentation supporting
[petitioner's] claim. Lastly, the record is absent of any
substantive evidence explaining the actual costs incurred by
[petitioner] in 1993 for the clean-up program and is void of
any documentation explaining what party was genuinely
responsible for the payment of the remediation procedures."
Thus, contrary to petitioner's assertion, the PTAB simply found
that the evidence of the property value of petitioner's facility
was unsupported and unsubstantiated. The statements of which
petitioner complains relate to the types of evidence which
petitioner, had it so chosen, could have introduced to support its
claims. We do not see that the PTAB was raising the evidentiary
standard; rather it was commenting on the deficiencies of
petitioner's evidence. Accordingly, not only are the PTAB's
conclusions not errors of law, but also they are not against the
manifest weight of the evidence.
Petitioner also argues that, because the PTAB believed the
documentary evidence it found lacking in petitioner's presentation
of its case to be important, it should have compelled petitioner to
produce those documents. See 86 Ill. Adm. Code 1910.67(h)(1)(D)
(1996) (giving the PTAB authority to require production of
documentary evidence). Petitioner misconceives the PTAB's
responsibility in this matter. The PTAB adjudicates petitioner's
appeal; it does not also try petitioner's case for it. To hold
otherwise would turn the adversarial process on its head.
Petitioner made the strategic choice to introduce only its
appraiser's written report into the record. In hindsight,
petitioner cannot now bemoan its choice and blame the PTAB for
failing to save it from itself. We reject this argument.
Petitioner next argues that the PTAB ignored the
uncontradicted evidence presented by both Serna, the
hydrogeologist, and Lipowsky, the appraiser. In this, petitioner
concludes that the PTAB acted arbitrarily and capriciously. We
disagree.
We reiterate that the PTAB found that petitioner had not
proved the amount by which the contamination decreased the value of
petitioner's facility. Intervenors' witnesses both testified that
they believed contamination existed, but that they were not able to
obtain any information from petitioner which would allow them to
place a value on it. Intervenors' witnesses, both of whom were
appraisers, also testified that petitioner's appraiser did not have
enough information on which to base an opinion about the effect of
the contamination on the value of petitioner's property. In this,
they most certainly controverted the testimony of petitioner's
appraiser. The PTAB was entitled to accept this testimony over
that of petitioner's appraiser and to conclude that petitioner had
not proved its case regarding contamination. Oregon Community Unit
School District No. 220 v. Property Tax Appeal Board, 285 Ill. App.
3d 170, 175 (1996).
Finally, petitioner argues that the PTAB failed to require the
submission of new evidence of actual costs incurred during the
cleanup of the contamination. This is analogous to its earlier
argument that the PTAB should have compelled the production of
documents petitioner chose not to introduce, and we again reject
the argument. Petitioner contends that the costs projected in 1993
had become certain by the time that its appeal was heard by the
PTAB. But, in the intervening time between filing its appeal and
the hearing, petitioner never submitted any information regarding
the now-certain costs. Moreover, it did not even attempt to
include those actual costs in its proofs at the hearing.
Petitioner's argument is without merit.
For the foregoing reasons, the decision of the PTAB is
affirmed.
Affirmed.
McLAREN and HUTCHINSON, JJ., concur.
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