Daily Development for
Monday, October 28, 1995

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

MUNICIPAL GOVERNMENT; IMPROVEMENT DISTRICTS; PROCEDURE; NOTICE: Notice to one spouse of a pending special service district affecting property owned by both spouses does not satisfy statutory notice requirement, and remedy is exclusion of the unnotified spouse's property from the district.

Village of Lake Barrington v. Hogan, 649 N.E.2d 1366 (Ill. 1995).

The municipality mailed notices of the creation of a special service area to persons in whose names the general taxes for the preceding year had been paid rather than to all persons named on the actual tax bills for parcels in the affected area. In consequence, not all owners of record received a mailed notice. The court does not make clear whether the individual landowner who did not receive notice owned a cotenancy interest with her husband or a separate parcel from that owned by her husband. It does indicate that her husband received notice.

The Illinois Supreme Court, applying Grais v. City of Chicago, 601 N.E.2d 745 (Ill. 1992), to the facts of the case found that the clear import of the Grais decision is that notice under Section 5 of the Special Service Area Tax Act is not jurisdictional, and the lack of notice to some taxpayers within the special service area does not invalidate the entire service area. The reasoning of Grais, however, further requires that the parcel of land owned by a taxpayer who did not receive mailed notice must be excluded from the special service area if that party contests its validity. Furthermore, the court held that to the extent that Andrews v. County of Madison , 369 N.E.2d 532 (Ill App. 1977), is inconsistent with Grais and the holding in the present case the court declined to follow Andrews.

Note: The court also held ruled that the Village did not err in including certain detail in the content of the notice, holding that lack of detail would not invalidate the notice itself. Although this is a dangerous ruling, the court goes on to analyze the content of the notice at some length and apparently was satisfied that the notice fairly appraised those receiving it of the full nature of the proceeding and its impact on their interests.

Comment 1: What about the rest of the landowners in the service area? With a smaller area, the potential financial impact on the remaining participants will be greater. Should they now have an opportunity to a new hearing due to the new facts? The answer, as a legal matter, probably is no, since the original hearing conceivably could have changed the boundaries in any event. Politically, however, there is an argument that a new hearing would be appropriate if the excluded land resulted in a significant change in the economics. The politics of this case, in fact, are truly bizarre. See further discussion under the heading: "Constitutional Law; Free Speech; SLAPP Suits."

Comment 2: One basic lesson that lawyers and other notice givers have to learn these days is that spouses are independent actors. One notice to a household may not be enough, even though as a practical matter this will appraise both spouses of the event noticed. All lawyers should adopt a basic "two envelope" procedure when providing formal legal notices to spouses who each have an interest in the proceeding.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Laprica Mims at the ABA. (312) 988 6233 or LaPricaMims@staff.abanet.org

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