On August 14, 2013, the Daily Herald reported that “Gov. Pat Quinn has signed a new state law giving DuPage County the ability to impose a countywide stormwater utility fee.” Derided by some as a “tax on rain” or “rain tax,” Public Act 98-0335 allows DuPage County and Peoria County – and only DuPage and Peoria counties – to impose a stormwater utility fee “on all real property within the county which benefits from the county’s stormwater management facilities and activities.” While Peoria County and DuPage County are both given authority to impose a stormwater utility fee, Peoria County is required to conduct a public referendum; in contrast, no such referendum is necessary in DuPage County.1 This article addresses whether the stormwater utility fee may be unconstitutional under Illinois law.
This article addresses whether the stormwater utility fee portions of section 5-1062.3 constitute special legislation under Section 13 of Article IV of the Illinois Constitution of 1970. If the answer is affirmative, that portion of the statute would be unconstitutional and any fees adopted by the enabling statute would be at risk of being struck down by the courts.
Illinois Public Act 98-0335 was codified as section 5-1062.3 of the Counties Code.2 What is also interesting about section 5-1062.3 is the authority it grants to fund stormwater management with “fees” rather than with “taxes.” To the extent such charges constitute a fee rather than a tax; the fee can be imposed on non-profit entities that would otherwise be exempt from property taxes. For example, churches may be subject to a “fee” but might otherwise be exempt if it were a “tax.”
This author suggests that two core issues can be framed. First, whether there is a rational difference of situation or condition in DuPage and Peoria Counties causing these two counties to be unlike the remainder of the state with respect to the necessities and benefits of funding countywide stormwater management efforts through utility fees rather than real estate taxes; and second, whether there is a rational difference of situation or condition in DuPage County versus Peoria County which justifies requiring a referendum to impose a stormwater utility fee in Peoria County while waiving the referendum requirement in DuPage County. Special Legislation under the Constitution of 1870 and the Constitution of 1970 Section 13 of article IV of the Illinois Constitution of 1970 provides as follows:
“The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination.”
This brief section replaces a much lengthier section 22 which was found in the Constitution of 1870. The Illinois Supreme Court compared sections 22 and 13 in the case In Re Belmont Fire Protection District3: Section 13 of article IV of the 1970 Constitution eliminated the obsolete “laundry list” in the 1870 Constitution and retained the principle that the General Assembly may not pass a special or local act when a general act is or can be made applicable. Section 13, however, rejected the previous practice of deferring to legislative discretion in determining whether a general law could be made applicable. Under the 1970 Constitution, whether a general law is or can be made applicable is specifically provided to be a matter for judicial determination.4
The court also stated that general principles guiding the resolution of special legislation controversies did not change upon the adoption of the constitution of 1970. In Bridgewater v. Hotz (citation omitted) this court, for the first time, decided the constitutionality of a statute on the basis of section 13 of article IV of the 1970 Constitution. After noting that the 1970 Constitution rejected the rule enunciated in earlier decisions of this court which held that whether a general law can be made should be a legislative rather than a judicial determination, this court concluded that “although the scope of judicial review of legislation is to that extent enlarged, section 13 requires no change in our definition of when a law is ‘general and uniform,’ ‘special,’ or ‘local.’”
A Two-Prong Test for Evaluating Special Legislation Challenges Belmont Fire Protection District articulated a two-prong test for evaluating assertions of special legislation. The first prong is: In order for a legislative classification by population to withstand constitutional scrutiny, it cannot be arbitrary. The legislature cannot create a class through the medium of an arbitrary statutory declaration in order that the class may be the recipient of special and exclusive legislative favors.
[Citation omitted] To render a statutory classification valid, the classification must be based upon a rational difference of situation or condition found to exist in the persons or objects upon which the classification rests. [Citations omitted]5 The second prong of the test is:
[I]n addition to a reasonable basis for the classification, the classification must also bear a rational and proper relation to the evil to be remedied and the purpose to be attained by the legislation.6
Applied to the stormwater fee enabling legislation, the issue becomes whether there is a rational difference of situation or condition in DuPage and Peoria counties that does not exist elsewhere to justify allowing these two counties to impose a stormwater utility fee. Since answering this question would require examination of legislative history and consideration of statistical and demographic data, the answer to that specific question is beyond the scope of this article. However, a brief review of select Illinois Supreme Court cases establishes the framework for resolving the issues.
Brief Overview of Existing Case Law. Taken together, five decisions of the Illinois Supreme Court provide a concise introduction of this area of the law. They are Christen v. County of Winnebago , 7 Chicago National League Ball Club, Inc. v. Thompson 8, In Re Belmont Fire Protection District 9, Cutinello v. Whitle10 and Petition of the Village of Vernon Hills.11 Christen v. County of Winnebago involved House Bill 1684, which authorized all county boards, by resolution and without referendum, to issue general obligation bonds for the construction, reconstruction or remodeling of courthouses. The bill was amended to apply only to counties having a population between 200,000 and 1,000,000. The issue was whether the statute, as enacted, created an arbitrary classification of counties in violation of the state and federal constitutions.
The court explained:
“The unmistakable purpose of House Bill 1684 is to eliminate, in those counties that fall within the specified population limits, the requirement of a referendum which in all other counties is a prerequisite to the issuance of general obligation bonds for the construction, reconstruction or remodeling of courthouses. The question for decision, therefore, is whether in the six counties included within the statutory limits, (DuPage, Lake, St. Clair, Madison, Winnebago and Kane), conditions exist which justify the removal of the requirement of a referendum in those counties, while retaining it in all others.”12
The court then resolved the issue in its finding of an arbitrary classification:
“While the findings of the General Assembly as to the need for improved facilities for governmental operations generally, and the reports of the Judicial Conference committees with respect to courtrooms and related facilities, clearly establish a critical need for improved facilities in most of the 102 counties in the State, they do not establish that the need is any greater in the counties included within the statutory limits than in other counties.”13
It is important to note that Christen looked closely at statistical data and drew its own conclusions from that data even though the case was governed by Section 22 of the Illinois Constitution of 1870, a provision that gave greater deference to the determinations of the legislature rather than Section 13 of article IV of the Illinois Constitution of 1970.
Chicago National League Ball Club, Inc. v. Thompson involved a special legislation challenge to noise pollution regulations prohibiting night baseball at Wrigley Field. The regulations were clearly intended to apply specifically and only to Wrigley Field. The regulations were upheld and the court found they did not violate the constitutional prohibition against special legislation. The court noted:
“Only stadia in cities with more than one million inhabitants are subject to the regulations. Chicago is the only city in our State that has a population of more than one million. A legislative classification based upon population will be sustained “where founded on a rational difference of situation or condition existing in the persons or objects upon which [the classification] rests and there is a reasonable basis for the classification in view of the objects and purposes to be accomplished.” [Citation omitted]”14
The court went on to explain:
“Considering the terms of this amendment, there is a rationally founded difference between a less populous city and a city with a greater population. It might be reasonably anticipated that in a typical urban setting more people would be affected in the larger city by the noise from spectators in a stadium for a nighttime event. The problems attending a densely populated area would be exacerbated: limited areas for parking would become overburdened; neighborhood streets would become busier and thus potentially more dangerous to residents of the area and their children; and thoroughfares to and from the area would become more congested. Too, a rational basis may be found in the concern that there would be less open space in an area with a highly concentrated population that could serve as a buffer zone against the noise generated.”15
Although the classification was limited to a single site – Wrigley Field – the Illinois Supreme Court concluded that there was “a rational difference of situation or condition” and a “reasonable basis for the classification in view of the objects and purposes to be accomplished.”
In Re Belmont Fire Protection District is a case that involves a statute enacted to permit consolidation of fire protection districts to conform to municipal boundaries. As stated by the court:
Section 19a creates a mechanism whereby fire protection services within a given municipality may be consolidated into a single fire protection district. The relevant provisions of section 19a are:
“(a) In any county having a population of more than 600,000 but less than 1,000,000, territory located within the corporate limits of any municipality and which is included within the limits of any fire protection district may be disconnected from the district and transferred to another district providing fire protection service within such municipality and to which the territory is contiguous, in the manner hereinafter set forth * * *.”16
The Illinois Supreme Court struck down section 19a as special legislation using the following analysis: “[W]e agree with respondents that there is no reasonable basis for the population classification, since there is no basis, in reason and principle, for regarding DuPage County as a distinct and separate class for the purpose of this particular legislation. The record demonstrates that there is no substantial difference between the situation existing in DuPage County, and the conditions which exist in Kane, McHenry, De Kalb, Lake, Will, Sangamon, Winnebago, and Champaign counties insofar as municipalities that are served by multiple fire protection districts is concerned. We can perceive of no rational reason why a municipality served by multiple fire protection districts in a county with a population between 600,000 and 1 million can be said to differ from a municipality which is served by multiple fire protection districts in a county with less than 600,000 or more than 1 million inhabitants. If a real need exists to eliminate the alleged disadvantages and dangers of multiple fire protection districts serving one municipality, then the same need to remedy this evil also exists in other counties as well, regardless of the level of the population of the county.”17
The court held that because section 19a denied municipalities with similar needs in other similar counties the privilege of consolidating fire protection services into a single fire protection district, the population classification was an arbitrary distinction not founded upon any rational or substantial difference of situation or condition and therefore violated the constitution.18
In 1994, Cutinello v. Whitley clarified that it is the “plaintiffs’ burden to show that a classification is unreasonable, not the [defendants] Counties’ burden to show that the classification is reasonable.”19 Further “a reviewing court will determine only whether a rational basis exists for the legislative action, not the wisdom of the classification.”20 At issue in Cutinello was a statute that authorized the counties of DuPage, Kane and McHenry to impose a motor fuel tax. The purpose of the tax was to fund highway construction, maintenance and repair in the targeted counties. The statute was challenged on special legislation grounds:
“Plaintiffs argue that, in any event, the statute should have included Lake and Will Counties. Lake and Will Counties, like the three counties named in the statute, are adjacent to Cook County in northeastern Illinois and, according to plaintiffs, were similarly experiencing rapid population growth at the time the legislation was passed. Plaintiffs therefore argue that all five counties are similarly situated and that the difference in treatment by the legislature is irrational. Plaintiffs do not argue that Cook County should have been included in the statute. Cook County is a home rule unit with its own authority to pass a motor fuel tax.”21
The court rejected this argument. “Under the rational basis test, mathematical precision in creating a classification is not required”22 and:
“Ultimately, it is plaintiffs’ burden to show that a classification is unreasonable, not the Counties’ burden to show that the classification is reasonable. Plaintiffs have failed to rebut the Counties’ population argument. Plaintiffs argue that the legislature could better address transportation needs by basing its classification on congestion factors, not population growth. Under the rational basis test, however, a reviewing court will determine only whether a rational basis exists for the legislative action, not the wisdom of the classification.”23
Petition of the Village of Vernon Hills resolved a challenge to fire protection districts that was remarkably similar to the facts in Belmont. The court stated, “Given the overwhelming similarities, we find Belmont to be dispositive of the case at bar.”24 Vernon Hills is necessary reading, however, as it reconciles numerous cases with one another and summarized Cutinello by stating:
Statistical evidence was presented showing that those three counties were the three fastest growing counties in the State in terms of percentage growth, which created a greater need for the building, maintenance, and repair of their highway systems. The court held that the legislature could have rationally concluded that a greater need for transportation financing existed in those three counties than in other areas of the State.25
Conclusion. Applying these cases to Public Act 98-0335 suggests that the statute should be upheld if a rational basis can be articulated to distinguish DuPage and Peoria counties from other counties within the state with respect to the benefits and necessities of allowing the imposition of a stormwater utility fee. A second issue, however, is whether a rational basis can be articulated for requiring Peoria County to conduct a referendum while waiving that requirement for DuPage County. Regardless of the outcome of a special legislation challenge, the DuPage County Board should consider the probability of a successful challenge before choosing to rely upon stormwater utility fees as a revenue source for county stormwater management.
2 55 ILCS 5/5-1062, et seq.
3 111 Ill.2d 373, 489 N.E.2d 1385 (1986)
4 Id. at 378.
5 Id. at 379-80.
6 Id. at 380.
7 34 Ill.2d 617, 218 N.E.2d 103 (1966)
8 108 Ill.2d 357, 483 N.E.2d 1245 (1985)
9 111 Ill.2d 373, 489 N.E.2d 1385 (1986)
10 161 Ill. 2d 409, 641 N.E.2d 360 (1994)
11 168 Ill.2d 117, 658 N.E.2d 365 (1995)
12 34 Ill.2d at 619-20.
13 Id. at 620.
14 108 Ill.2d at 369.
15 Id. at 369-70.
16 111 Ill.2d at 376.
17 Id. at 381-82.
18 Id. at 382.
19 161 Ill.2d at 422,
21 Id. at 420.
22 Id. at 421.
23 Id. at 422.
24 168 Ill.2d at 126.
25 Id. at 128.
Bill White has practiced law in Downers Grove since 1984. He received his college degree from the University of Chicago and his law degree from Loyola University of Chicago. In 1985, he represented the petitioners in the case In re Belmont Fire Protection District which is cited in this article.