Sorrells v. City of Macomb

• Decision Date: 23 October 2015
• Docket Number: No. 3–14–0763.,3–14–0763.
• Citation: 44 N.E.3d 453
• Parties: Duane SORRELLS and Mildred Sorrells, Plaintiffs–Appellants, v. CITY OF MACOMB, a Municipal Corporation, Defendant–Appellee (DK Linde Construction, Inc., Defendant).
• Court: United States Appellate Court of Illinois

44 N.E.3d 453

Duane SORRELLS and Mildred Sorrells, Plaintiffs–Appellants

v.CITY OF MACOMB, a Municipal Corporation, Defendant–Appellee (DK Linde Construction, Inc., Defendant).

No. 3–14–0763.

Appellate Court of Illinois, Third District.

Opinion Filed Oct. 23, 2015.

Rehearing Denied Nov. 30, 2015.

Stanley L. Tucker (argued) and Carissa Ann Bryant, both of Hartzell, Tucker & Hartzell, Carthage, for appellants.

Bhairav Radia (argued), of O'Halloran, Kosoff, Geitner & Cook LLC, Northbrook, for appellee.

OPINION

Justice CARTER

delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, Duane and Mildred Sorrells, filed a complaint against defendant, DK Linde Construction, Inc., (DK Linde), for flooding that occurred on their property allegedly caused by DK Linde developing the adjacent property. Plaintiffs amended the complaint to add a claim for inverse condemnation against defendant, the City of Macomb (City), who owned the streets that had been developed by DK Linde. The trial court granted the City's section 2–615 motion to dismiss the plaintiffs' inverse condemnation claim with prejudice. 735 ILCS 5/2–615 (West 2012)

. The plaintiffs appealed the dismissal of their inverse condemnation claim. We affirm the trial court's judgment.

¶ 2 FACTS

¶ 3 I. Original Complaint Against DK Linde

¶ 4 On August 30, 2007, plaintiffs filed a one-count complaint for an injunction against DK Linde, who was developing a residential complex adjacent to their property known as the Scotch Pine Planned Unit Development (Scotch Pine). Plaintiffs alleged that non-percolating surface water had naturally drained from defendant's property onto their property until 1997 when DK Linde installed a detention basin that altered the natural flow of the surface water drainage. Since the installation of the basin, DK Linde acquired additional property to develop Phase 2 of Scotch Pine, which included a new and expanded detention basin and drain. The plaintiffs alleged that DK Linde diverted the natural flow of water and caused an increased amount of surface water to drain onto their property. Plaintiffs requested that DK Linde be enjoined from unreasonably increasing the surface water that drained onto their land and that DK Linde be ordered to install and maintain appropriate drainage facilities.

¶ 5 After DK Linde answered the complaint, plaintiffs filed a motion for partial summary judgment with the affidavit of plaintiff, Duane Sorrells, attached thereto. Sorrells attested to the allegations of the complaint and attested to the fact that defendant had moved the point at which water discharged onto plaintiffs' land. In response, DK Linde filed the affidavit of the engineer who had planned the development. The engineer attested that: (1) defendant did not unreasonably divert water; (2) the rate of surface water flow onto plaintiffs' land would decrease; (3) the discharge from Scotch Pine had not been relocated; (4) the development complied with applicable engineering standards and the subdivision ordinance; and (5) the defendant's storm water management plan did not alter the point of discharge.

¶ 6 II. Amended Complaint against DK Linde and the City

¶ 7 On March 15, 2012, with leave of court, plaintiffs filed an amended complaint, alleging two additional counts against DK Linde and two counts against the City. In count II against DK Linde, the plaintiffs alleged that the construction of Phase 2 of Scotch Pine would unreasonably discharge water onto their property that had not previously drained onto their property and the drainage system, as designed, would create an unnatural channel on their property and cause an increase of surface water that was diverted from other drainage basins to flow toward their land. For count II, plaintiffs requested a permanent injunction against DK Linde. In count III against DK Linde for negligence, plaintiffs realleged the allegations of count II and that defendant's trespass and other conduct would damage their property. For count III, plaintiffs requested money damages.

¶ 8 In count IV for inverse condemnation against the City, the plaintiffs alleged that DK Linde was developing a residential complex adjacent to the their property called Phases 1 & 2 of Scotch Pine, which included the installation of residential structures, streets, lawns, drainage ways, and other improvements, with the streets having been dedicated to the City. Plaintiffs alleged that the surface water from the streets and the development on Phase 1 was directed into unnatural channels on their land and that the surface water from Phase 2 had not previously drained naturally onto their land. Plaintiff claimed that the drainage design would cause water from the development to unreasonably discharge from two storm water detention basins onto their property where there had been no natural drainage, causing erosion, creating an unnatural channel, and increasing the amount of surface water drainage.

¶ 9 Plaintiffs further alleged that the City failed to follow applicable drainage standards, engineering standards, and ordinances in approving the construction and design of Phases 1 and 2. Plaintiffs alleged that the unnatural and diverted drainage of surface water had and would in the future result in a permanent, continuing, and substantial physical interference with the use and enjoyment of their land, amounting to a taking of a drainage easement by the City for its streets and public ways, which would continue in the future as further streets and public ways were developed in Phase 2. Plaintiffs claimed that the taking was “by invasion by taking drainage rights and by permanently taking [their] lands due to an increase in the water level of plaintiffs' lake.” Plaintiffs requested, inter alia, money damages for damage to their land not taken and an order of mandamus requiring the City to initiate condemnation proceedings for the portion of their property that had been taken. In count V, plaintiffs alleged negligence against the City based on the City's alleged breach of duty to refrain from altering the natural flow of water.

¶ 10 In response, the City filed a motion to dismiss counts IV and V pursuant to section 2–619 of the Code of Civil Procedure

(735 ILCS 5/2–619 (West 2012) ). The City argued, inter alia, that the plaintiffs' claim regarding Phase 1 should be dismissed pursuant to the applicable one year statute of limitations. The City also argued that it was immune from liability under section 2–104 of the Local Governmental and Governmental Employees Tort Immunity Act (Illinois Tort Immunity Act) (745 ILCS 10/2–104 (West 2012) ) (providing immunity to a local public entity for issuing a permit, license, certificate, approval, or similar authorization), section 2–105 of the Illinois Tort Immunity Act (745 ILCS 10/2–105 (West 2012)

) (providing immunity to a local public entity for the failure to inspect or for an inadequate or negligent inspection), and section 2–103 of the Illinois Tort Immunity Act (745 ILCS 10/2–103 (West 2012) ) (providing immunity to a local public entity for adopting or failing to adopt an enactment or failing to enforce a law).

¶ 11 In support of its motion to dismiss, the City provided the affidavit of Ed Basch, who had been the Community Development Coordinator for the City. According to Basch's affidavit, the City would transmit proposed engineering plans to a professional engineer for review. The engineering plans for Phase 1 were prepared by McClure Engineering, Inc., and reviewed by Benton & Associates, Inc., who found the Phase 1 drainage calculations complied with the Macomb Municipal Code and Illinois drainage requirements. The City Council approved the final subdivision plans for Phase 1. The engineering plans for Phase 2 were prepared by McClure Engineering and reviewed by Hutchison Engineering, Inc., who offered suggestions for improvements to the detention basin. The City Council approved Phase 2 in a 5 to 3 vote.

¶ 12 The trial court granted the City's motion to dismiss “on the immunity grounds,” with leave granted to plaintiffs to amend their complaint.

¶ 13 III. Second–Amended Complaint

¶ 14 The plaintiffs filed a second-amended complaint, asserting claims of inverse condemnation in count IV and negligence in count V. In response, the City filed a section 2–619

motion to dismiss, attaching the Basch affidavit in support thereof.

¶ 15 On July 17, 2013, the trial court found that the City was immune from tort liability for the alleged negligence count, which was dismissed with prejudice. The trial court also dismissed the inverse condemnation count, with leave granted to amend, if possible, to allege that “it is the streets in and of themselves that's causing the taking not th[e] entire subdivision.” The plaintiffs filed a motion for the trial court to reconsider its dismissal of counts IV and V, which the trial court denied.

¶ 16 IV. Third–Amended Complaint

¶ 17 On August 5, 2013, plaintiffs filed a third-amended complaint, alleging an inverse condemnation claim against the City in count IV. Plaintiffs alleged that they owned real estate adjacent to land on which DK Linde was developing a residential complex known as Phases 1 & 2 of Scotch Pine, which included “residential structures, street, lawns, drainage ways, and other improvements, which streets have been dedicated to the City.” The surface water from the streets and the development on Phases 1 and 2 was being channeled and directed, by the streets, into unnatural channels onto their land and surface water from Phase 2 had not previously drained naturally onto their land. Plaintiffs alleged the water from the development, including from the streets, was channeled and directed by the streets to unreasonably discharge from two storm water detention basins onto the land: (1) where there had been no natural drainage channel; (2) where their land would be eroded into an unnatural channel on their property; (3) at a point where there had not been any natural...