Billie v. Vill. of Channahon
| Decision Date | 07 June 2021 |
| Docket Number | Case No. 20-cv-3294 |
| Parties | CRAIG BILLIE, et al, Plaintiffs, v. VILLAGE OF CHANNAHON, et al, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Plaintiffs Craig Billie, Dawn Billie, Sara DeLucio, Janet Hopman, Andrew Kittl, Sharon Kittl, Donald Mladic, Susan Mladic, Gerard Sabo, Donna Sabo, Todd Stonitsch, and Rebecca Stonitsch allege the Village of Channahon ("the Village"), as well as several of its Trustees and employees (James Bowden, Wayne Chesson, Joseph Cook, Jr., Edward Dolezal, Thomas Durkin, Samuel Greco, Chantal Host, Scott McMillian, Thomas Pahnke,1 Patricia Perinar, Mark Scaggs, Janet Schumacher, David Silverman, and Scott Slocum, Jr., together "the individual Defendants") violated their federal constitutional and statutory rights under the Takings Clause of the Fifth Amendment, the National Flood Insurance Act of 1968 ("NFIA"), 42 U.S.C. § 4001 et seq., and the Flood Disaster Protection Act of 1973 ("FDPA"), 42 U.S.C. § 4002. Count I is a Monell claim brought pursuant to 42 U.S.C.§ 1983 alleging that the Village had a policy or practice of violating the federal statutory rights and the Fifth Amendment rights of the Plaintiffs. Count II and III, brought under § 1983, assert that the individual Defendants deprived Plaintiffs of their Fifth Amendment rights to compensation for a taking and deprived the Plaintiffs of federal statutory rights, respectively. Plaintiffs also raise state law claims of inverse condemnation (Count IV), nuisance (Count V), and trespass (Count VI) against the Village. Finally, Plaintiffs bring a claim for deprivation of the right of access to the courts against all Defendants pursuant to § 1983 (Count VII). For the reasons stated herein, Defendant's motion to dismiss (Dkt. 41) is granted.
The following factual allegations are taken from the corrected Amended Complaint (Dkt. 35) and are accepted as true for purposes of this motion to dismiss. See W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016). Plaintiffs own homes in a Channahon, Illinois subdivision called Indian Trails North. Plaintiffs' homes are located in or around the FEMA-designated DuPage River Special Flood Hazard Area ("SFHA").2 When the water table around the DuPage River rises, their basements are flooded with water for several reasons. First, the basements were constructed at a depth of between 518 and 520 feet above the National Geodetic Vertical Datum (a standardized measure of elevation based on sea level) in an area where the base flood elevation is only 524 feet and the water table is only eight to tenfeet below ground. Second, the Channahon Dam impedes the flow of the river. And third, the soil is porous. The Plaintiffs' basements flooded in 1996, 2001, 2007, twice in 2008, 2009, 2013, 2017, and 2020.
Plaintiffs invoke various statutes as the bases for their claims. The National Flood Insurance Act of 1968 ("NFIA") codified at 42 U.S.C. § 4001 et seq. created a national flood insurance program and empowered a Federal Insurance Adjuster to enact regulations that would reduce future losses to flood damage. At all times relevant to this case the Village participated in the National Flood Insurance Program.
Congress later passed the Flood Disaster Protection Act of 1973 ("FDPA") codified at 42 U.S.C. § 4002, which required "[s]tates or local communities, as a condition of future Federal financial assistance, to participate in the flood insurance program and to adopt adequate flood plan ordinances with effective enforcement provisions consistent with Federal standards to reduce or avoid future flood losses." § 4002(b)(3). These "adequate ordinances" would require that participating municipalities "[r]eview all permit applications to determine whether proposed building sites will be reasonably safe from flooding" and require certain construction standards in flood-prone areas, 44 C.F.R. § 60.3(a)(3) 51 Fed. Reg. 30,307 (Aug. 25, 1986), "[o]btain the elevation (in relation to mean sea level) of the lowest floor (including basement) of all new and substantially improved structures" in areas designated as flood-prone by the federal government, and "[m]aintain a record of allsuch information with the official designated by the community." 44 C.F.R. § 60.3(b)(5) 51 Fed. Reg. 30,307 (Aug. 25, 1986). Participating municipalities also had to require that any construction in flood-prone areas be above certain depths, 44 C.F.R. § 60.3(c)(7), and prohibit new construction in some flood-prone areas without hydrologic studies. 44 C.F.R. § 60.3(d)(3).
On April 6, 1992, the Village Board of Trustees passed Ordinance 703, requiring that the Village "comply with the rules and regulations of the National Flood Insurance Program codified at 44 CFR 59-79, as amended." Defendant Thomas Pahnke, the Building and Zoning Officer, was tasked with enforcing this ordinance. He was required to "[e]nsure that all development activities within the [flood-prone areas] of the jurisdiction of the Village meet the requirements of this Ordinance" and "[i]nspect all development projects before, during and after construction to assure proper elevation of the structure and to ensure they comply with the provisions of this Ordinance." Ordinance 703, § 505.0-506.0.
On September 29, 1992, the Village Board of Trustees voted to approve construction of the Indian Trails North subdivision.3 A few months later Village Attorney Silverman either drafted or approved an agreement annexing the subdivision to the Village, and on November 16, 1992 that annexation was approved by the Board. Between September of 1993 and August of 1994 building permit applications were filed for each of the Plaintiffs' homes. Defendants Pahnke andSilverman, the Building and Zoning Officer and the Village Attorney, reviewed these applications. They did not require any hydrological analyses, any special inspection, permitting, or certification for construction in flood-prone areas, and Plaintiffs assert that their actions were not in compliance with the federal regulations that Ordinance 703 was designed to implement. Each of the Plaintiffs (or their predecessors in interest) were granted a building permit.
In 1996, the basements at Indian Trails flooded for the first time. Former Village President Chesson, Trustee Greco, and several FEMA representatives visited the subdivision to view the damage. The Amended Complaint alleges that during conversations with these FEMA representatives Chesson and Greco "came to believe [. . .] the basement floor elevations may have been too deep." (Dkt. 35 at ¶ 76).
In March of 1998, the Village asked FEMA to remove several empty Indian Trails lots from the SFHA so that they could be developed.4 Village President Chesson received a response from FEMA on March 29, 1998. It partially approved the Village's request, removing certain empty lots from the SFHA. The letter also noted that construction on those empty lots "remain[ed] subject to Federal, State, and local regulations for floodplain management." (Id. at ¶ 79). FEMA "encourage[d]" the Village to "require that the lowest adjacent grade and lowest floor (including basement / crawl space) elevations of any structure placed on [the empty lots that had been removed from the SFHA] be elevated to a level at or above the base flood elevation of 525.5 feet." (Id. at ¶ 79). FEMA also denied the Village's request in part,keeping some empty lots in the SFHA. Plaintiffs allege that this letter caused former Village President Chesson, Attorney Silverman, Village Administrator Bowden, Trustee Greco, Building and Zoning Officer Pahnke, and Director of Public Works Dolezal to "kn[ow] [. . .] that Lot 11-17 basement floor elevations were too deep and violated Ordinance 703 and 44 C.F.R. §§ 59.1-60.26." (Id. at ¶ 82). Plaintiffs also allege that these Defendants therefore knew that the Plaintiffs' homes "would continue without end to have basement flooding." (Id. at ¶ 83). Plaintiffs assert that despite this knowledge Defendants engaged in a "conspiracy of silence" and failed to alert Plaintiffs or their predecessors in interest of the danger of continued flooding. (Id. at ¶ 84). Various other Defendants not then in office, including Trustee McMillian, Trustee Slocum, former Village President Cook, Village President Schumacher, Trustee Host, Trustee Perinar, Trustee Scaggs, and Village Administrator Durkin are also alleged to have participated in this conspiracy of silence after learning of the ongoing danger of flooding.
After experiencing flooding in 2001, 2007, and 2008 Indian Trails residents asked the Village to investigate the problem. The Village hired an engineering firm "to determine the causes for significant basement flooding" and "propose potential solutions." (Id. at ¶ 96). The resulting report was received by then-Village President Cook and Director of Public Works Dolezal in 2009. It noted that a combination of factors including the low elevations of the basements, downstream impediments to water flow at the Channahon Dam,5 and porous soil were responsible for the flooding.The report did not investigate the permitting process or the conduct of any Village officials. It recommended that the Village work with the Illinois Department of Natural Resources ("IDNR") to divert water from the Dam, and that the Village construct a concrete barrier to stop surface runoff from reaching the water table. On October 5, 2009 the Board voted to have the engineering firm create a hydraulic model of these proposed solutions.
On October 9, 2009, Plaintiff Dawn Billie wrote to then-Village President Cook asking that the Village buy Dawn and Craig Billie's home, on the grounds that it had approved construction of a basement that was deeper than 524 feet base flood elevation. President Cook replied, copying Attorney Silverman (who may also...
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