                                                      FIFTH DIVISION
                                                      July 30, 2010




No. 1-08-2060


THE COOK COUNTY BOARD OF REVIEW,        )   Petition for Review of an
                                        )   Order of the Illinois
     Petitioner,                        )   Property Tax Appeal Board.
                                        )
            v.                          )
                                        )
THE PROPERTY TAX APPEAL                 )
BOARD, an Administrative Agency,        )
and CRESTWOOD CONDOMINIUM               )
ASSOCIATION, Taxpayer,                  )
                                        )
     Respondents.                       )


     JUSTICE HOWSE delivered the opinion of the court:

     Following a hearing, the Illinois Property Tax Appeal Board

(PTAB) issued a decision modifying the assessed value of the

properties at issue for 2004 and 2005.      The Cook County Board of

Review (Board) petitioned for review of the PTAB’s order.     On

appeal, the Board contends: (1) the PTAB erred as a matter of law

in holding the Crestwood Condominium Association (Crestwood)

proved a violation of uniformity by clear and convincing

evidence; (2) the PTAB erred as a matter of law by setting

assessments that are not equitable or supported by the evidence;

and (3) the PTAB’s findings were against the manifest weight of

the evidence.    For the following reasons, we affirm the PTAB’s

decision.

                                FACTS
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     Crestwood is a 30-year-old residential community located in

Des Plaines, Illinois.   The Crestwood property consists of 154

buildings, each of which has the same floor plan layout and

square footage.    One hundred and fifty-two of the buildings are

configured identically, each being divided into three 2-bedroom

units, two large one-bedroom units and a smaller one-bedroom

unit.   The remaining two buildings are each divided into two 2-

bedroom units and four larger one-bedroom units.     When they were

developed, all 154 buildings received an individual property

identification number (PIN).

     In 2002, 12 of the 154 buildings were legally subdivided

into 72 individual dwelling units.     In 2004, 12 additional

buildings out of the remaining 142 buildings were subdivided into

72 individual dwelling units.   Each individual unit received its

own separate PIN for property tax assessment purposes.

     For the year 2003, all of the buildings were assessed the

same, at $36,879 a piece.   As of January 1, 2004, the subdivided

individual units were assessed at $6,959, $6,185, $5,670, or

$5,669, depending on their size, for an average of $37,628 per

subdivided building.   The remaining unsubdivided buildings

received total assessments of $55,350, or an average of $9,225

per living unit.   Two exceptions applied to the assessments:

first, the county valued one entire unsubdivided building at

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$37,637; second, the county valued some of the other subdivided

buildings at $55,343 per building.     The assessments remained the

same in 2005.

     Crestwood appealed the 2004 and 2005 assessments to the

PTAB.   In its briefs in support of the appeals and in its summary

judgment motions, Crestwood alleged all of the buildings in the

development were substantially similar, and the fact that 13 of

the 154 buildings were assessed lower violated the Illinois

Constitution’s requirement that property tax assessments be

uniform.    Crestwood alleged the county assessor and the board of

review allowed for the disparate treatment in the assessment of

the various buildings in the development based on whether or not

the buildings were subdivided into individual condominium units.

Crestwood requested that the assessed values of the 141 buildings

assessed at $55,350 be reduced to the same assessment as the 13

buildings assessed at $37,628.

     The Board submitted its “Board of Review Notes on Appeal,”

wherein the subject properties’ 2004 and 2005 final total

assessments were disclosed.   The assessment summary noted 124

buildings were assessed at $55,350; 1 building was assessed at

$37,637; 11 individual condominium units were assessed at $5,670;

10 individual condominium units were assessed at $5,669; 22

individual condominium units were assessed at $6,959; and 22

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individual condominium units were assessed at $6,185.    The

Board’s representative presented an analysis prepared by the

Board outlining the properties’ market values before and after

being subdivided.    A summary of the sales of the properties’

subdivided individual units was also submitted by the Board.

According to the Board’s evidence, the average selling price for

the six individual condominium units in each of the subdivided

buildings indicated the aggregate value of the subdivided

buildings averaged $697,500 in 2004 and 2005.    All of the

unsubdivided buildings and individual units in the subdivided

buildings were classified as 299 condominiums, the only

recognized class of condominiums in Cook County.

     During the hearing before a PTAB hearing officer, Crestwood

called Sandra Hannon, Crestwood’s property manager.    Hannon

testified there is no difference in the overall square footage in

the buildings or the units.    She said the six-unit buildings were

selling for between $550,000 and $575,000 during 2004 and 2005.

Individual units sold for an average of $110,000.    Hannon

testified the monthly assessment and percentage of common

ownership in the condominium community (.64935%) were the same

for each building.    Hannon said the tax increases had caused a

lot of the unsubdivided building owners a “great financial

hardship.”

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     The hearing officer then questioned the Board’s

representative at the hearing, Matt Panush.     When asked why the

County had two sets of assessments for the buildings, Panush

explained:

            “It seems that out of the 154 buildings,

            according to, you know –- there are six

            buildings that are assessed at this lower

            number.   *** And that leaves us with 148 of

            the buildings being uniform.   So for some

            reason –- And most of the time we sit here,

            and of the many condo units, there’s one that

            seems to have been, you know, misunderstood

            or misclassified or misassessed.   It would

            seem here that the majority of these

            buildings –- of these six-unit buildings –-

            are correct in their assessment and that we

            do not have a problem with the four.   I

            cannot tell you why they have the $37,000.

            *** I’m not sure why the assessor chose to

            put the number at $37,000, but I do know that

            a majority –- 148 or of the 154 –- are

            uniform in this complex and I think, you

            know, that’s –- that is what we are –- we

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            strongly stress here in this case.”

Panush further explained that the Board believed 96% of the

development was currently correct or assessed fairly, “and

somehow 4 percent of this entire development is somehow

incorrect.”    Panush specifically stressed, however, that the

Board was not asking the PTAB to increase the assessments on the

other 4% of the buildings to make the whole development uniform.

     Crestwood’s counsel responded to Panush’s answer to the

hearing officer’s question by noting:

            “It is clearly not a mistake because they’ve

            continued it.   There were assessment appeals

            filed advising the assessor of what we

            believed to be a lack of uniformity.   The

            assessment relief was denied.   *** This is

            ongoing.   Every time a unit is sold the

            assessors reduce the assessment.   This didn’t

            just happen in 2004, it happened in 2005 as

            well.   So every time a building was converted

            and sold as individual condos, the assessor’s

            pattern and practice has been to reduce the

            assessments to this $37,000 level.”

     On August 12, 2009, the PTAB issued a modified decision

finding a reduction in the assessment of the property at issue

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was warranted based on the facts and exhibits presented.

Specifically, the PTAB found the record was clear that “an

inequity exists in the assessment process between the subject’s

subdivided and un-subdivided buildings.”   The PTAB noted the

evidence demonstrated that although the buildings had the same

physical characteristics and percentage of ownership in the

common elements, the assessments of the buildings differed

depending on whether or not the buildings had been subdivided

into individual units.   The PTAB found there was “no market data

demonstrating that the buildings had differing overall values

depending on whether or not the buildings had been subdivided.”

Without such market data, the PTAB found there was no basis for

assessing the similar buildings differently.   The PTAB found

Crestwood had “adequately demonstrated that the subject was

inequitably assessed by clear and convincing evidence and

reductions are warranted for 2004 and 2005.”

     The Board appeals the PTAB’s decision.

                             ANALYSIS

     Our review of a PTAB decision is governed by the

Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2008)).

35 ILCS 200/16-195 (West 2008); Cook County Board of Review v.

Property Tax Appeal Board, 395 Ill. App. 3d 776, 784, 918 N.E.2d

1174 (2009).   Our scope of review extends to “all questions of

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law and fact presented by the entire record.”   735 ILCS 5/3-110

(West 2008).    The PTAB’s findings and conclusions on questions of

fact “shall be held to be prima facie true and correct.”     735

ILCS 5/3-110 (West 2008); Cook County Board of Review, 395 Ill.

App. 3d at 784.   We will not reweigh the evidence or substitute

our judgment for that of the administrative agency.   Cinkus v.

Village of Stickney Municipal Officers Electoral Board, 228 Ill.

2d 200, 210, 886 N.E.2d 1011 (2008).   Accordingly, we will not

reverse the PTAB’s factual findings unless they are against the

manifest weight of the evidence, meaning an opposite conclusion

is clearly evident.   Cook County Board of Review, 395 Ill. App.

3d at 784, citing Cinkus, 228 Ill. 2d at 210.   The PTAB’s

determination on a question of law, however, is not binding on

us, “rendering our review ‘independent and not deferential.’ ”

Cook County Board of Review, 395 Ill. App. 3d at 784, quoting

Cinkus, 228 Ill. 2d at 210.

                       I. Standard of Review

     Initially, the parties disagree as to what standard of

review should apply to the PTAB’s decision on appeal.

     Administrative review proceedings present three types of

questions: those of fact, those of law, and mixed questions of

fact and law.   Cook County Board of Review, 395 Ill. App. 3d at

784, citing Cook County Republican Party v. Illinois State Board

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1-08-2060


of Elections, 232 Ill. 2d 231, 243, 902 N.E.2d 652 (2009).

Factual determinations should only be reversed if they are

against the manifest weight of the evidence.   Republican Party,

232 Ill. 2d at 243.   A de novo standard of review applies to an

agency’s determination of a question of law.   Republican Party,

232 Ill. 2d at 243.   Lastly, mixed questions of law and fact will

only be reversed if the agency’s decision is “clearly erroneous.”

Republican Party, 232 Ill. 2d at 243-44.

     The Board contends the PTAB erred as a matter of law when it

held Crestwood proved a violation of uniformity, necessitating a

de novo review.   The Board also contends the PTAB erred as a

matter of law by setting assessments that are not equitable or

supported by the evidence.   The Board further contends, however,

that the PTAB’s findings were against the manifest weight of the

evidence.   Both the PTAB and Crestwood counter that no question

of law is presented here, and, therefore, the proper standard of

review is the manifest weight of the evidence standard.   We agree

with Crestwood and the PTAB.

     A review of the record and briefs submitted by the Board

indicates the PTAB did not address a question of law in reaching

its decision.   Instead, the PTAB’s decision was based solely on a

factual determination that the assessments at issue here lacked

uniformity.   Therefore, we review the PTAB’s factual

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determinations and ultimate conclusion using the manifest weight

of the evidence standard.    See Cook County Board of Review, 395

Ill. App. 3d at 785, citing Cinkus, 228 Ill. 2d at 210.

                         II. PTAB’s Decision

     The Board contends the PTAB’s findings were against the

manifest weight of the evidence.        Specifically, the Board

contends the “uncontested and uncontroverted” evidence in the

record established the parcels subject to the PTAB’s reduction

were uniformly assessed and valued at their fair market value.

     Contrary to several of the superfluous arguments the Board

raises on appeal, the only issue properly pending before the PTAB

was Crestwood’s claim that 141 unsubdivided buildings in the

Crestwood development were assessed at $55,350 and 13 almost

identical subdivided buildings were assessed at $37,628, in

violation of the property tax uniformity provision in the

Illinois Constitution.

     Matt Panush, the Board’s representative at the hearing,

specifically stressed the Board was not asking the PTAB to

increase the assessments on the other 4% of the buildings to make

the whole development uniform.    Instead, the Board’s sole

argument before the PTAB was that the 13 “misclassified or

misassessed” buildings should not impact the other 141 buildings

that were fairly assessed.   Panush was unable to offer a reason

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to explain the differences in the assessments.   To the extent the

Board now attempts to raise other arguments to support the

difference in assessments for the first time in this appeal, we

find those arguments are waived and need not be considered here.

See Cook County Board of Review, 395 Ill. App. 3d at 786 (“We

recognize that arguments or objections that are not made during

the course of the administrative hearing process but instead are

raised for the first time on review are deemed waived”).

     The Illinois property tax scheme is grounded in article IX

of the Illinois Constitution of 1970, which provides in pertinent

part that real estate taxes “shall be levied uniformly by

valuation ascertained as the General Assembly shall provide by

law.”   Ill. Const. 1970, art, IX, §4(a); Walsh v. Property Tax

Appeal Board, 181 Ill. 2d 228, 234, 692 N.E.2d 260 (1998).

Because uniformity requires equality in the burden of taxation,

taxing officials may not value the same kinds of properties

within the same taxing boundary at different proportions of their

true value.   Walsh, 181 Ill. 2d at 234, citing Kankakee County

Board of Review v. Property Tax Appeal Board, 131 Ill. 2d 1, 20,

544 N.E.2d 762 (1989).   The constitutional provision does not

call for mathematical equality, however.   Apex Motor Fuel Co. v.

Barrett, 20 Ill. 2d 395, 401, 169 N.E.2d 769 (1960).   “The

requirement is satisfied if the intent is evident to adjust the

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burden with a reasonable degree of uniformity and if such is the

effect of the statute in its general operation.     A practical

uniformity, rather than an absolute one, is the test.”     Apex

Motor Fuel Co., 20 Ill. 2d at 401.

     “The party objecting to an assessment on lack of uniformity

grounds bears the burden of proving the disparity by clear and

convincing evidence.”    Walsh, 181 Ill. 2d at 234; Cook County

Board of Review v. Property Tax Appeal Board, 345 Ill. App. 3d

539, 543,, 803 N.E.2d 55 (2003), citing 86 Ill. Adm. Code

§1910.63(b), amended at 24 Ill. Reg. 1233, 1247, eff. January 5,

2000 (“Under the burden of going forward, the contesting party

must provide substantive, documentary evidence or legal argument

sufficient to challenge the correctness of the assessment of the

subject property”).    The PTAB’s rules provide:

                 “Proof of unequal treatment in the

            assessment process should consist of

            documentation of the assessments for the

            assessment year in question for the subject

            property and of the suggested comparable

            properties, and documentation of the

            similarity, proximity and lack of

            distinguishing characteristics of the

            assessment comparables to the subject

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            property.”   86 Ill. Adm. Code §1910.65(b)

            (1996).   See Du Page County Board of Review

            v. Property Tax Appeal Board, 284 Ill. App.

            3d 649, 654-55, 672 N.E.2d 1309 (1996).

“[T]he critical consideration is not the number of allegedly

similar properties, but whether they are in fact ‘comparable’ to

the subject property.”     Du Page County Board of Review, 284 Ill.

App. 3d at 655, citing Kankakee County Board of Review, 131 Ill.

2d at 22.

     Here, the PTAB found the evidence demonstrated that even

though each of the buildings had the same physical

characteristics and the same percentage of ownership in the

common elements of the development, the assessments of the

buildings differed depending on whether or not there had been a

further subdivision of the buildings into individual units.

Accordingly, the PTAB found Crestwood had adequately demonstrated

the subject property was inequitably assessed by clear and

convincing evidence.     We find the record before us clearly

supports the PTAB’s finding of a lack of uniformity, and the

Board has failed to establish the PTAB’s ruling was against the

manifest weight of the evidence.

     Hannon, Crestwood’s property manager, specifically testified

at the hearing that there is no difference in the overall square

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footage in the buildings or the units between the subdivided and

unsubdivided buildings.   Hannon also testified the monthly

community assessment and percentage of ownership in the

community’s common elements were the same for each building,

regardless of whether it had been divided or not.

     Notwithstanding, the Board contends the PTAB erred in

reassessing the higher-valued properties to be in line with the

lower-valued assessments because “[t]he overwhelming majority of

the buildings in this development were assessed uniformly.”     The

Board made a similar argument before the PTAB hearing officer.

     Although the County’s representative, Matt Panush, could not

explain why 4% of the buildings had been misclassified or

misassessed, he argued to the PTAB that the assessor’s mistake in

assessing the 13 buildings at a lower assessment did not justify

lowering the assessments on the 96% that had been assessed

fairly.   Panush admitted in his opening comments to the hearing

officer that all 154 buildings were “pretty much identical.”

Panush offered absolutely no explanation during the hearing for

why the alleged “mistake” in assessing the subdivided buildings

at a lower rate had occurred.   Panush argued the assessments

imposed on the 142 units were justified under the market value of

the buildings.   Panush also stressed the Board was not seeking to

reassess the 13 subdivided buildings at the higher rate.

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     Crestwood’s counsel responded to Panush’s argument by noting

the lower assessments for the subdivided buildings were still

ongoing and clearly not a mistake.       Crestwood noted the

individual units when totaled up sold for an average of $697,000

per subdivided building, which was more than the buildings sold

for as individual buildings.     Crestwood argued that,

nevertheless, the assessor saw fit to actually reduce the

assessment on the subdivided individual units rather than

increase it.     Crestwood also noted the assessors reduced the

assessment every time a building was sold and converted into

individual condos, even after the Board was made aware of the

lack of uniformity between the assessments.

     Based on the totality of the evidence presented, we find

Crestwood proved by clear and convincing evidence a lack of

uniformity between the assessments imposed on the almost

identical buildings.     Accordingly, we cannot say PTAB’s findings

in this case were against the manifest weight of the evidence.

                              CONCLUSION

     We affirm the PTAB’s decision.

     Affirmed.

     TOOMIN, P.J., and LAVIN, J., concur.




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                  REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                      (Front Sheet to be Attached to Each Case)

  Please use               THE COOK COUNTY BOARD OF REVIEW,
following form:
                                         Petitioner,

  Complete                       v.
    TITLE
   of Case                 THE PROPERTY TAX APPEAL BOARD, an Administrator
                           Agency, and CRESTWOOD CONDOMINIUM ASSOCIATION,
                           Taxpayer,

                                         Respondents.


  Docket Nos.                             No. 1-08-2060

    COURT                             Appellate Court of Illinois
                                      First District, 5th Division
   Opinion
    Filed                                 July 30, 2010

                                      (Give month, day and year)

  JUSTICES                 JUSTICE HOWSE delivered the opinion of the court:

                           TOOMIN, P.J., and LAVIN, J., concur.



APPEAL from the              Petition for Review of an Order of
Circuit Court of             the Illinois Property Tax Appeal Board.
Cook County; the
Hon.___________,
Judge Presiding.


For APPELLANTS,      Indicate if attorney represents APPELLANTS or APPELLEES and
John Doe, of         include attorneys of counsel. Indicate the word NONE if
Chicago.             not represented.

For APPELLEES,             For Petitioner, Anita Alvarez, State's Attorney of
Smith and Smith,           Cook County, of Chicago. (Patrick T. Driscoll, Jr.,
of Chicago.                Deputy State's Attorney, Chief, Civil Actions Bureau;
                           Benjamin R. Bilton and Tatia C. Gibbons, Assistant
                           State's Attorneys, of Counsel.)

                           For Respondent - Crestwood Condominium Association,
Joseph Brown,              Donald T. Rubin, Rubin & Norris, LLC, of Chicago.
of Counsel).
                           For Respondent - Property Tax Appeal Board,
                           Lisa Madigan, Attorney General, Michael A. Scodro,
                           Solicitor General, and Evan Siegel, Assistant Attorney
Also add attor-            General, of Chicago.
neys for third-
party appellants
and/or appellees.
                             (USE REVERSE SIDE IF NEEDED)


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