Court to determine CID validity

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Briefs are in on the Down-town Springfield Community Improvement District case, and now it's up to the Court of Appeals to decide if the downtown special assessment district is still valid.|ret||ret||tab|

Notice of public hearings, the wording of the petition that requested establishment of the CID, and the legal description of the CID are the main issues in contention, according to the brief filed by Devon Sherwood, attorney for Jack L. Inman and others who opposed formation of the assessment district.|ret||ret||tab|

They claim the CID should be dissolved because the rules for creation of the district weren't strictly followed. Since the district is essentially a taxing district, the rules have to be followed strictly, according to Sherwood's brief. Sherwood is with the Sherwood, Honecker & Bender law firm.|ret||ret||tab|

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The opposition|ret||ret||tab|

Sherwood wrote that the facts of the trial weren't in dispute it's what the judge made of them that's the problem that is, his legal conclusion. Sher-wood wrote that the entire trial can be reviewed by the court of appeals as if being heard for the first time or in legal jargon, "de novo" without paying any attention to the trial judge's finding of facts and conclusions of law.|ret||ret||tab|

Sherwood states that the petition that sought to establish the CID was defective because it didn't list all the information about the property owners as is required by the law, wasn't properly signed and didn't contain required limiting language. |ret||ret||tab|

He also wrote that City Council violated due process of law because landowners didn't receive proper notice of the hearing or proper notification of the district boundaries. |ret||ret||tab|

Sherwood also argued that council didn't hold a public hearing within 45 days of the filing of the petition as is required by the CID-creating statute. The first hearing was held within a few weeks of the filing of the petition, but it was reset to nearly three months after the filing because some property owners didn't get the mailed notice. |ret||ret||tab|

A final important contention is that the legal description is improper it contains 17 approximations, or estimates, of distance, Sherwood wrote. |ret||ret||tab|

He stated the power of the city to create the district came from the legislature, and it must exercise that power in exactly the way the legislature sets out. If it doesn't, then any action by the city is void, including the ordinance that created the CID. |ret||ret||tab|

"Plaintiffs have a right to expect their government to follow the law before it places a financial heel on their necks," Sherwood wrote.|ret||ret||tab|

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History of the CID|ret||ret||tab|

On June 18, 1999, a group of 108 landowners, who represented more than two-thirds of the assessed valuation in the downtown area, filed a petition with the city of Springfield to create the CID as a political subdivision of the city. There are 203 property ownership groups in the assessment area. |ret||ret||tab|

The five-year plan for the district lists its mission: maintenance, parking management and safety, and image enhancement. |ret||ret||tab|

City Clerk Brenda Cirtin certified the petition July 2. A public hearing was set for July 6, but at that hearing two property owners, Virginia Kay Martin and Barbara Barnes, said they hadn't re-ceived the mailed notice. Council tabled the ordinance and later reset the hearing for Sept. 7, at which time it passed the ordinance establishing the district. |ret||ret||tab|

On Dec. 6, 1999, the challenge to the ordinance was filed asking the circuit court to declare the district void and to enjoin the levy of the special assessments. A trial was held Oct. 10, 2000, after which Circuit Judge Tim Perigo of Newton County ruled that the district was legally created.|ret||ret||tab|

Plaintiff William Graham testified at trial that he couldn't locate the boundary by street sign or monuments from the notice he received. Bob Burleson, also a plaintiff, said his property was listed on the map but not in the legal description. He also testified that his property tax went up 93 percent as a result of the district. |ret||ret||tab|

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City and CID response|ret||ret||tab|

Delay of the public hearing wasn't disputed, said attorney Frank Evans in his response brief. He represents the city and the CID, and he argued that "the delay was neither prejudicial nor harmful ..."|ret||ret||tab|

Evans, of Lathrop and Gage LC, wrote that the "explicit statutory time requirements that were not met are construed to be directory rather than mandatory." Because the statute didn't specify i.e. mandate what would happen if the law weren't followed precisely, then the time requirement didn't demand strict adherence. And even with the delay, there was no harm, no foul. |ret||ret||tab|

"The logical conclusion (for the purpose of the time requirement) ... resulted from a concern ... that the local legislative body would not respond to the CID petition and would let the CID petition languish without taking action," he wrote.|ret||ret||tab|

Evans, who was aided on the brief by Kathleen A. Hauser, said that basically the CID opponents didn't prove their case. |ret||ret||tab|

They "produced no evidence whatsoever that any of the claimed technical defects had any effect on the fairness of the process or the merits of the CID ordinance."|ret||ret||tab|

Evans wrote that the CID opponents were wrong when they argued the petition was defective because it didn't contain any limitation language in the areas of revenue generation or borrowing capacity. |ret||ret||tab|

He said such limiting language is logically only required if there is the intent to limit, which there is not.|ret||ret||tab|

As for imperfections in the petition most particularly the signature block portion for the landowners they didn't matter because the information requested on the signature blocks is in substantially the same form as set out in the statute. [[In-content Ad]]