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Residents could have vote on drainage districts : News : Oswego Ledger-Sentinel : Hometown Newspaper for Oswego and Montgomery, Illinois
Residents could have vote on drainage districts
Attorneys for Oswego, association have differing views; court hearing Monday

by John Etheredge


Would proponents of an effort to reactivate the Morgan Creek Drainage District in Oswego need to pass a referendum before the long-dormant agency could levy a property tax?

Attorneys for the Village of Oswego and the Illinois Association of Drainage Districts have differing opinions.

The drainage district was established in 1903 to provide funds to pay for improvements to assure the proper draining of farmland within the district but has been inactive since the late 1940s.

Currently, the Kendall County Farm Bureau is seeking to reactivate the Morgan Creek Drainage District and three others in the county: Robb Roy, which includes parts of the far northwest side of Yorkville and the far east side of Plano; Big Slough, south of Newark in Big Grove Township; and Raymond, which encompasses an area on the far north side of Yorkville and a portion of the west side of Montgomery.

Farm bureau officials are seeking to reactivate the drainage districts to improve stormwater drainage on county farmlands. They note that drainage facilities built decades ago by the drainage districts are now handling significantly more water as a result of the subdivisions and streets that have been built in the county over the past several years. In some areas, the facilities are unable to handle the increased flows resulting in costly flooding problems on some farms.

A petition to reactivate the drainage districts will be the subject of a court hearing next Monday, Aug. 18 at 9 a.m. in the county courthouse in Yorkville. Judge Robert Pilmer will preside.

A few weeks ago, the farm bureau, in accordance with state law, mailed legal notices to approximately 8,700 owners of homes and other properties within the four drainage districts to inform them of the pending court hearing.

Karl Ottosen, an attorney for the Village of Oswego, told the village board last week the Morgan Creek Drainage District has been dormant since about 1947. As a result, he said, the agency has not been levying annual property taxes.

Ottosen said he believes the Morgan Creek and other drainage districts would now have to secure voter approval of referendums in order to have the county levy property taxes on their behalf since Kendall County is subject to the state's Property Tax Extension Limitation Act, also known as the "tax cap."

Referring to the Morgan Creek Drainage Districts, Ottosen said, "So even if they get it reactivated, they have to have a referendum to get some approval to do a property tax extension...Good luck with that is my initial thought, especially if everybody in the proposed district area gets to vote on it."

"So they can't do the district and levy a tax without a referendum?" asked Gail Johnson, a board member.

"Not as I read it," Ottosen said of the law, adding, "It's a taxing body under the property tax extension law and it has to establish an aggregate (tax) base first."

However, Jim Ayers, the legal counsel for the Illinois Association of Drainage Districts, which is working with the Kendall County Farm Bureau, said the process to re-establish a drainage district in a county is unique, even if the county is a tax cap county.

"Once a drainage district is formed, it can only be dissolved by court process," Ayers said. "If it goes dormant due to lack of activity, it still exists and then to reactivate it, we have simply filed petitions and get it in front of the judge for approval. Starting a district from scratch is a slow, deliberate process because I have done it only a couple of times."

He continued, "The drainage levy is not subject to the tax cap because the levy is not based on the value of the property but it is based on the benefit received by the landowner. To increase a levy, one would either look to see if one had been approved before, then you could use that or file a new petition for the approval of an annual maintenance assessment or additional assessment. Drainage districts are special purpose governmental bodies supervised by the courts. This is unlike other types of governmental bodies."

According to the Illinois Department of Revenue, "If a new district is formed that does not have an aggregate extension base, or if a district does not have an aggregate extension base because it has never levied for the funds subject to the PTELL, then the voters must approve the aggregate extension by referendum before it levies for the first time. This question may be placed on a ballot at the same election as the referendum creating the new district."

'Multiple concerns'

Ottosen told the board that he has multiple concerns with the petition to re-activate the Morgan Creek Drainage District.

"Until we can get an accurate description of the district and the ownership interest of the petitions we cannot tell you whether this is a valid petition or not in our legal opinion," he said.

Ottosen said the effort to reactivate the district could both positively and negatively affect the village and its residents who live within the drainage districts. He said on the positive side residents could benefit from the better stormwater drainage that could result from the improved drainage facilities, while negatively residents may be taxed to pay for those improvements.

The board agreed to hire Ottosen and his law firm to-in the words of Johnson-"watchdog" the effort to reactivate the drainage district on the behalf of the village and its residents.

Ottosen noted residents also have the option of retaining their own attorneys.

When questioned by Village President Brian LeClercq, Ottosen estimated the cost to the village for his firm's legal services at no more than $5,000 to $10,000.

Board member Tony Giles voiced support for the village retaining Ottosen to represent the village and its residents.

"I think it is important that we have our attorney more or less protect our residents here," Giles said.

Ottosen said he expects a full courtroom for next Monday's hearing before Judge Pilmer.

"There are likely going to be a lot of people in that courtroom with a lot of questions," he said.

Ottosen said the drainage districts, which were established in the early years of the 20th century, were created to pay for drainage improvements that were intended to last 50 to 100 years.

He said the farm bureau is now seeking to reactivate the drainage districts to improve the drainage facilities to correct flooding issues now being experienced on some county farms as a result of development of subdivisions and roadways.

If the drainage districts can be reactivated, Ottosen said temporary commissioners would be appointed to each of the district's governing boards and they would, in turn, hire engineers to study and make recommendations on what improvements are needed to improve drainage.

"They're following the statute," he said.

Ledger-Sentinel reporter Tony Scott contributed to this story.

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