Still, the court found that the existence of the credit provision made the charge "voluntary."

The circuit court found the service charge to be a user fee and not a tax. The City's motion for summary judgment was granted, and the plaintiffs' motion for summary judgment was denied. Following the court's denial of the plaintiffs' motion for rehearing, the churches appealed to this court.

ANALYSIS

On appeal, the plaintiffs raise three issues: (1) under Illinois law, the definition of a tax upon real property clearly encompasses the ordinance at issue; (2) this is a matter of first impression in Illinois, but several other states have found similar ordinances to be a tax and not a user fee; and (3) the circuit court incorrectly applied the Bolt criteria. We address each arguments in the following manner.

Section 1-145 of the Illinois Property Tax Code (35 ILCS 200/1-145 (West 2002)) provides that a tax is "any tax, special assessment or costs, interest or penalty imposed upon property." Property is defined as "the land itself, with all things contained therein, and also all buildings, structures and improvements and other permanent fixtures thereon. * * * " 35 ILCS 200/1-130 (West 2002).

Taxes are "an enforced proportional contribution levied by the state by virtue of its sovereignty for support of the government." People ex rel. County of DuPage v. Smith, 21 Ill. 2d 572, 583 (1961). In contrast, a service charge or fees are "contractual in nature, either express or implied, and are compensation for the use of another's property, or of an improvement made by another, and their amount is determined by the cost of the property or improvement and the consideration of the return which such an expenditure should yield." Smith, 21 Ill. 2d at 583. The plaintiffs maintain that a tax is levied as a contribution "in return for the general welfare" while a fee gives a particular benefit to the property assessed." Northpole Corp. v. Village of Dundee, 263 Ill. App. 3d 327, 337 (2^nd Dist. 1994).

The plaintiffs argue that under the statutory definition of tax, and the application thereof in the above-cited cases, the ordinance at issue is a tax, not a fee. They note that the charge imposes a "cost" on property, thus tracking with the statutory definition of a tax. They also note that the service provided - storm water drainage - is a not a benefit to the particular parcel of property, but rather is a governmental service for benefit of the general common good.

However, we note that Northpole cites Crocker v. Finley, 99 Ill. 2d 444 (1984) for the proposition that a tax may be distinguished from a fee by observing that a tax is a charge having no relation to the service rendered and is assessed to provide general revenue rather than compensation. A fee, on the other hand, is proportional to a benefit or service rendered. Under this analysis, the storm water service charge is clearly a fee. The record herein established that there was a direct and proportional relationship between imperviousness and storm water run-off, thus creating a rational relationship between the amount of the fee and the contribution of a parcel to the use of the storm water system.

We agree with the plaintiffs that this is a matter of first impression in Illinois. However, we note that the weight of decided law from other jurisdictions favor a finding that the assessment at issue is a fee rather than a tax.

The plaintiffs cite Dennehy v. City of Gresham, 12 Ore. Tax 194 (Oregon Tax Court 1992) for the proposition that a similar ordinance was a tax. The City responds by citing Howard Jarvis Taxpayers Association v. City of Salinas, 121 Cal. Rptr. 2d 228 (Cal. Ct. App. 6^th dist. 2002), wherein the court held a similar service charge was a fee "for a public service having a direct relationship to the ownership of developed property." The City also cites several cases wherein a court held that a similar charge was a fee, not a tax. Most recently, the Georgia supreme court in McLeod v. Columbia County, 278 Ga. 242, 599 S.E.2d 152 (2004) rejected an argument almost identical to that posed by the plaintiffs in the instant matter. The McLeod court noted that a tax is "an enforced contribution exacted pursuant to legislative authority for the purpose of raising revenue to be used for public or governmental purposes, and not as payment for a special privilege or a service rendered." 278 Ga. at 244. In contrast, "a charge is generally not a tax if its object and purpose is to provide compensation for services rendered." 278 Ga. at 244. The court went on to find that a storm drainage assessment based proportionately upon the size of developed run-off surface was a fee, not a tax.

After reviewing the case law cited, we find that the more recent case law favors the position that storm water service charges are a fee.

Finally, the plaintiffs maintain that the trial court mis-applied the analysis of Bolt v. City of Lansing in finding that the assessment at issue was voluntary. We disagree. The trial court's determination that the opt-out provisions of the ordinance was sufficient to make the charge voluntary is sound. Clearly, if any of the plaintiffs chose to not avail themselves of the storm water drainage system provided by the City, it could do so and avoid paying the assessment. While it might be cost prohibitive for each plaintiff to construct its own storm water run-off containment system, each would certainly be able to calculate the cost of doing so versus the cost of paying for the use of the City's system. Voluntary participation involves nothing more than weighing the competing costs of participation.

For the foregoing reasons, we find that the storm water assessment imposed by the City is a fee, not a tax. We affirm the judgment of the circuit court of Rock Island.

Affirmed.

SLATER, P. J., and O'BRIEN, J., concur.