Salvi v. Vill. of Lake Zurich

• Decision Date: 31 October 2016
• Docket Number: No. 2–15–0249.,2–15–0249.
• Parties: Marita Williams SALVI, as Successor Trustee of the Albert S. Salvi Family Trust, Plaintiff–Appellant, v. The VILLAGE OF LAKE ZURICH, and The Ela Area Public Library District, Defendants (The Village of Lake Zurich, Defendant–Appellee; The Chapel, Inc.; Good Shepherd Bible Church, Inc.; Alpine Business Partnership, LLC; Barrington Christopher Club; and Zurich Meadows Apartments, LLC, Respondents in Discovery).
• Court: United States Appellate Court of Illinois

66 N.E.3d 894
408 Ill.Dec. 889

Marita Williams SALVI, as Successor Trustee of the Albert S. Salvi Family Trust, Plaintiff–Appellant,
v.
The VILLAGE OF LAKE ZURICH, and The Ela Area Public Library District, Defendants (The Village of Lake Zurich, Defendant–Appellee; The Chapel, Inc.; Good Shepherd Bible Church, Inc.; Alpine Business Partnership, LLC; Barrington Christopher Club; and Zurich Meadows Apartments, LLC, Respondents in Discovery).

No. 2–15–0249.

Appellate Court of Illinois, Second District.

Oct. 31, 2016.

66 N.E.3d 898

Michael J. Salvi and Kimberly A. Regan, of Salvi, Salvi & Wifler, P.C., of Lake Zurich, for appellant.

Rebecca A. Fozo and Jon Yambert, of Chilton, Yambert & Porter LLP, of Chicago, for appellee.

OPINION

Justice McLAREN delivered the judgment of the court, with opinion.

408 Ill.Dec. 893

¶ 1 Plaintiff, Marita Williams Salvi, as successor trustee of the Albert S. Salvi Family Trust (Trust), appeals the dismissal of her claims against defendant the Village of Lake Zurich (Village). Plaintiff's amended complaint alleged that the Village's renovation of a detention pond (Pond) near an office building (Building) on property (Property) owned by plaintiff caused the Pond to overflow during a heavy rain, flooding the bottom floor of the Building. The trial court dismissed the claims as barred by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (

408 Ill.Dec. 894

66 N.E.3d 899

745 ILCS 10/1–101 et seq. (West 2014)). For the reasons that follow, we affirm in part, reverse in part, and remand the cause for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 Plaintiff filed her amended complaint in January 2014, naming as defendants the Village and the ELA Area Public Library District (Library). She also named several respondents in discovery. The Library and the respondents were dismissed pursuant to a settlement before plaintiff filed her notice of appeal.

¶ 4 The general allegations in the complaint are as follows. Plaintiff was the current trustee of the Trust and the current owner of the Property, which was in the Village and improved with the Building. The Property and the Building were held by the Trust. Prior to 1989, the Federal Deposit Insurance Corporation (FDIC) owned the Property as well as a contiguous parcel, later known as the Good Shepherd Subdivision (Subdivision). In 1989, Albert S. Salvi, plaintiff's predecessor in interest, purchased the Property from the FDIC and placed it with the Trust. The Pond was situated in the Subdivision. The Property "extend[ed] in part onto the slopes of the Pond." At the time of the purchase, "the Pond had no history of overflowing." Sometime after 1989, Good Shepherd Church (Church) purchased the Subdivision from the FDIC. The Subdivision was later divided into four parcels. One parcel was purchased by the Library (Library Parcel) and another parcel by the Village (Village Parcel). The remaining two parcels were retained by the Church. On one of these parcels (Church Parcel), the Church constructed a church building. On the remaining parcel was the Pond (Pond Parcel). All four parcels were located north and west of the Property. The only parcel contiguous to the Property was the Pond Parcel.

¶ 5 In the summer of 2000, the Church, the Village, and the Library signed an "Easement Agreement" (Agreement), a copy of which was attached to the complaint. The Agreement characterized the Pond as a "storm water detention basin * * * serving the storm water management requirements of the Library Parcel, the Village Parcel, the Church Parcel, and the Pond Parcel * * *." The stated purpose of the Agreement was to "permanently protect the establishment, use, and maintenance of the [Pond] for its intended purposes." To this end, the Church granted two types of easements over the Pond Parcel. First, to both the Village and the Library, the Church granted "a perpetual, nonexclusive easement over, across, under, upon, along, and through * * * [the Pond Parcel] * * * for the purpose of discharging storm water into the [Pond]." In connection with the discharge easement, the Village was granted "a perpetual, nonexclusive easement over, across, under, upon, along, and through * * * [the Pond Parcel] * * * for the purpose of maintaining, repairing and replacing the storm water laterals, culverts, drains, and associated laterals, lines, and devices * * *, such work to be at the Village's cost." Second, the Agreement granted the Village "a perpetual, nonexclusive easement over, across, under, upon, along, and through * * * [the Pond Parcel] * * * for the purpose of rehabilitation and maintenance of [the Pond] * * *."

¶ 6 Plaintiff alleged that subsequent improvements to the Village and Library Parcels and renovation of the Pond contravened requirements set forth in the Agreement and in Lake County's Watershed Development Ordinance (Watershed Ordinance) (Lake County Watershed Development Ordinance (amended Aug. 14, 2001)).

408 Ill.Dec. 895

66 N.E.3d 900

According to plaintiff, the violations led ultimately to the overflow of the Pond and the flooding of the Building.

¶ 7 We note that, in various places, the complaint describes the Agreement as granting the Village "the perpetual right to possess, manage and control the Pond Parcel." Plaintiff also alleged that the Village "acquired * * * the Pond Parcel," and she characterized the Pond as "the Village's Pond." Though the Village did not file an answer below (having filed a motion to dismiss in lieu of an answer), it challenges on appeal the accuracy of the complaint's description of the Village's interest in the Pond and the Pond Parcel.

¶ 8 The Agreement contains the following provision relating to the Pond's capacity:

"Section 3. Capacity of Detention Pond. [The Pond] was designed and constructed to accommodate maximum storm water flows (the ‘Pond Capacity’) from the Library Parcel, the Village Parcel, the Church Parcel, and the Pond Parcel, with a maximum of 60 percent impervious surface coverage (the ‘Maximum Coverage’) per parcel. [The parties] agree that they shall take no action that inhibits, impairs, or interrupts the function of [the Pond] or results in discharge in excess of the Maximum Coverage. In protecting the function of [the Pond], the Village shall not approve or permit additional or increased storm water discharge into [the Pond] by or for the benefit of any user not a party to this Agreement beyond use which currently exists."

The Agreement notes that the Village had approved plans for the construction of a library facility on the Library Parcel and a police station on the Village Parcel. In this connection, the Agreement specifies that "[n]o development of the Village Parcel, the Church Parcel, the Pond Parcel, or the Library Parcel shall be permitted in excess of the Maximum Coverage except only if the Church, the Library, the Village, or other developer of such parcel, as the case may be, shall provide for an increase in the Pond Capacity at such developer's cost and in a manner and amount satisfactory to the Village Engineer, whose approval shall not be unreasonably withheld."

¶ 9 The Agreement not only grants the Village an easement for rehabilitation and maintenance of the Pond, but requires the Village to perform that work when necessary and provides for the sharing of costs associated with the work. The Agreement notes that the Village had submitted to the Church and the Library "a preliminary analysis and estimate of the work related to the rehabilitation and future maintenance of [the Pond]." An attachment to the Agreement sets forth the proposed work, which includes excavation and reshaping of the Pond's slopes.

¶ 10 The Watershed Ordinance was enacted in October 1992 and has since been amended several times. Plaintiff's complaint makes extensive reference to the Watershed Ordinance. The complaint contains two significant block quotations from the Watershed Ordinance. The first is from the "purpose" section of the ordinance (Lake County Watershed Development Ordinance, art. IB. (amended Aug. 14, 2001)). Several specific purposes are listed, including the objectives of preventing flooding and drainage hazards, specifically those stemming from "development," and protecting buildings and improvements from flood damage "to the greatest extent possible." Lake County Watershed Development Ordinance, art. IB.6. (amended Aug. 14, 2001). The complaint also quotes a section stating that "[n]o person, firm, corporation or governmental agency" may commence certain developments without

408 Ill.Dec. 896

66 N.E.3d 901

obtaining " a Watershed Development Permit from the Stormwater Management Commission or, if applicable, the Certified Community." Lake County Watershed Development Ordinance, art. IVA.1. (amended Aug. 14, 2001). The Watershed Ordinance grants certified communities the power to enforce its requirements. Lake County Watershed Development Ordinance, art. III (amended Aug. 14,...