Cook County Record

Thursday, December 5, 2019

Appeals court: Winnetka stormwater fee not an illegal tax

State Court

By Scott Holland | Jul 29, 2019


CHICAGO — A state appeals panel has sided with the village of Winnetka, rejecting a homeowner's contention the village's stormwater runoff fee was actually an illegal tax.

The dispute goes back to March 2014, when the village enacted a stormwater utility fee to cover debt service on 30-year municipal bonds worth $61.5 million. The next year, when costs for a tunnel under Willow Road were projected to exceed $80 million, the village changed course.

Resident Mark Green sued the village, alleging the fee actually is a property tax in violation of the uniformity in taxation clause of the Illinois Constitution and Illinois Municipal Code. Cook County Circuit Court Judge Kathleen Kennedy dismissed the initial complaint but the Illinois First District Appellate Court overturned that decision in May 2016.

Illinois Appellate Justice Sheldon Harris |

Green amended his complaint, and eventually both he and the village filed motions seeking summary judgment. 

Cook County Judge Pamela Meyerson on Sept. 14 granted summary judgment in favor of the village. Green again appealed to the First District Appellate Court.

Justice Sheldon Harris wrote the panel’s opinion issued July 26. Justices Mathias Delort and Joy Cunningham concurred. Both Harris and Cunningham were on the panel that revived Green’s complaint in 2016.

Since the origin, Green’s underlying allegation has been that Winnetka’s fee scale “bears no relation to a property owner’s actual use of the existing stormwater system … and the village concedes, no attempt is made to measure the actual stormwater discharged into the system by any property owner.”

In granting summary judgment, Meyerson held up a 2005 Illinois Third District Appellate Court ruling in Church of Peace v. City of Rock Island in which the court upheld Rock Island’s stormwater fee because the record “established that there was a direct and proportional relationship between imperviousness and stormwater runoff, 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.”

The panel found “several significant similarities” between the Winnetka and Rock Island fees assessment process “in terms of the impervious area of a parcel, and both ordinances define impervious area substantially identically,” Harris wrote. “Both ordinances provide that property owners who do not use the municipal stormwater system may obtain a 100 percent credit of the fees at issue. Both ordinances provide that the revenue from the fees at issue is dedicated to a fund used solely to finance the municipal stormwater system. Both ordinances exempt public roads or rights-of-way from the fees at issue.”

Green maintained the Winnetka situation is different because the fee was only enacted to pay bonds, but the panel said only the base fee is intended for that purpose, while property owners fund the entire stormwater system through “other rates, fees and charges that the village council determines are necessary to recover all costs related to operating, maintaining and improving the stormwater system utility,” according to the ordinance.

The court found that the village established a reasonable relationship between impervious surfaces and runoff into the stormwater system, pointing to work from the Winnetka’s engineering department that incorporated a third-party consultant’s study.

“We do not find that the village failed to establish a reasonable relationship to support the Ordinance and Fee because (the engineer) or another Village officer did not personally confirm that water soaks into earth and flows across pavement,” Harris wrote.

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