Village of Riverwoods v. Untermyer

• Decision Date: 21 November 1977
• Docket Number: No. 76-339,76-339
• Citation: 54 Ill.App.3d 816,12 Ill.Dec. 371,369 N.E.2d 1385
• Parties: , 12 Ill.Dec. 371 The VILLAGE OF RIVERWOODS, Plaintiff-Appellee, v. Ethel UNTERMYER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1385

369 N.E.2d 1385

54 Ill.App.3d 816, 12 Ill.Dec. 371

The VILLAGE OF RIVERWOODS, Plaintiff-Appellee, v. Ethel UNTERMYER, Defendant-Appellant.

No. 76-339.

Appellate Court of Illinois, Second District.

Nov. 21, 1977.

Paul E. Hamer, Northbrook, for defendant-appellant.

Alfred W. Lewis, Waukegan, for plaintiff-appellee.

BOYLE, Justice:

The Village of Riverwoods (hereinafter the "village") brought this action against Ethel Untermyer (hereinafter the "defendant") to recover a fine for defendant's violation of the village's Ordinance No. 187, entitled "An Ordinance Regulating the Use of Septic Tanks and Fields and Connection to the Sanitary Sewage System of the Village of Riverwoods." The village's complaint alleged that it had been feasible since June 1, 1973, for the defendant to connect her premises into the village's sanitary sewer system, but that the defendant had continued to dispose of sewage from her premises by means of a septic tank and septic field. Defendant filed an answer and 12 affirmative defenses to the village's complaint. The village filed a response and a motion to strike some of defendant's affirmative defenses. The trial court allowed the village's motion and struck 11 of the 12 affirmative defenses.

A trial was held and defendant's final affirmative defense was litigated. At the trial, the village presented the testimony of its engineer who supervised the construction of the sanitary sewer system in the village. His testimony established that as late as three weeks before trial the defendant's property was serviced by a stub and that he (the village engineer) knew the defendant had never connected her property to the sanitary sewer system provided by the village. The trial court entered judgment in favor of the village and fined the defendant $350 and costs for defendant's daily violation of the ordinance from June 1, 1973, to the entry of its order, at $25 per day. Defendant appeals from the entry of this order and the orders dismissing her affirmative defenses.

The ordinance, which was enacted on February 19, 1973, noted on its face that it was published on February 22, 1973. The ordinance stated that there was a serious health problem created by the use of septic systems in poor soil areas of the village and that the village was constructing sanitary sewer systems in those areas to alleviate this problem. Under the village's ordinance the disposal of any sewage by means of septic tanks and septic fields from premises in the village which were serviced by its sanitary sewer system was declared a nuisance. However, the ordinance was inapplicable to premises where the connection with the sewer system was not feasible. The ordinance further provided that after June 1, 1973, connection was feasible for any premises which were serviced by a stub or "T" opening into the village's lateral sewage lines. Section 2 of the ordinance required all premises in the village to abandon the use of any but approved sewage disposal systems where the premises were serviced by a stub or "T" opening into the village's lateral sewage lines by June 1, 1973. Section 3 provided for a fine not to exceed $25 per day for each day a violation continued.

Defendant presents two issues for review by this court. First, defendant contends this ordinance is unconstitutional because it violates the due process and equal protection clauses of both the Federal and State constitutions. Secondly, defendant argues that the trial court erred in striking the affirmative defenses asserted by the defendant. We disagree. We will discuss first the merits of defendant's due process and equal protection arguments.

Defendant's due process contention is that the ordinance is vague and indefinite because the terms "feasible" and "water-closet or privy", as well as the phrase "by processing by means of Illinois Environmental Protection Agency licensed process (specifically excluding without limiting the generality of the foregoing, septic tanks and fields) is hereby declared to be a nuisance", convey no reasonably clear and definite meaning and therefore the ordinance is void. Defendant's equal protection argument is that the ordinance in question denied her equal protection of the law because it only applied to a portion of the village, while septic tanks and fields were permitted in the rest of the village.

We will deal first with the merits of defendant's due process argument. Section 1 of the ordinance provides that:

"Disposal by means of septic tanks and septic fields of any sewage from premises in the Village of Riverwoods to be serviced by the system of sanitary sewers or disposal in any other manner other than by discharge of the same into the sewage system of said Village or by processing by means of Illinois Environmental Protection Agency licensed process (specifically excluding without limiting the generality of the foregoing, septic tanks and fields) is hereby declared to be a nuisance; every water-closet or privy not so disposing of sewage effluent is hereby declared to be a nuisance, provided this ordinance shall be inapplicable to premises where connection with the sewage system is not feasible. Such connection with the sewage system is hereby declared to be feasible on or after June 1, 1973, as to any premises serviced by a stub or 'T' opening into the Village lateral sewage lines."

We disagree with defendant's contention that the term "feasible" is vague and indefinite as used in this ordinance. The Supreme Court has held that "(t)o avoid the constitutional vice of vagueness, it is necessary at a minimum, that a statute give fair notice that certain conduct is proscribed." (Rabe v. Washington (1972), 405 U.S. 313, 315, 92 S.Ct. 993, 994, 31 L.Ed.2d 258, 260, rehearing denied, 406 U.S. 911, 92 S.Ct. 1604, 31 L.Ed.2d 822.) Here we think that the ordinance does give such fair notice. The village specifically states in the ordinance that connection with the village's sewer system will be "feasible for any premises serviced by a stub or 'T' opening into the Village lateral sewage lines." A person of ordinary intelligence would not guess at the meaning or applicability of "feasible" as used in this ordinance. Instead, a person of ordinary intelligence would have fair notice that it is feasible to connect his premises to the village's lateral sewage lines when his premises are serviced by a stub or "T" opening. Thus, the within term, "feasible", is not so vague or indefinite as to deny the defendant due process of law.

The defendant's second contention that the term "water-closet or privy" is vague or indefinite is also without merit. As used in this ordinance, every water-closet or privy which did not dispose of sewage effluent by either the village sewage system or by processing means approved by the Illinois Environmental Protection Agency was declared to be a nuisance where connection with the village's sewage system was feasible. The term "water-closet" is defined in Webster's New Collegiate Dictionary (1976) as "1: a compartment or room for defecation end excretion into a toilet bowl: bathroom 2: a toilet bowl and its accessories." "Privy" is likewise defined in Webster's New Collegiate Dictionary (1976) as "a: a small building having a bench with holes through which the user may evacuate and usu. lacking means of automatic discharge b: toilet." The terms "water-closet" and "privy" as defined by Webster's leave no room for amplification by this court. It is sufficient to note that these two terms as used in this ordinance are sufficiently clear that any person affected by this ordinance would have "a reasonably clear idea of what the law requires of them." (Franklin v. First Money, Inc. (E.D.La.1976), 427 F.Supp. 66, 67.) Thus, the term "water-closet or privy" is not so vague or indefinite as to deny the defendant due process of law.

Defendant's third argument that the phrase "by processing by means of Illinois Environmental Protection Agency licensed process (specifically excluding without limiting the generality of the foregoing, septic tanks and fields) is hereby declared to be a nuisance" is vague and indefinite, is also without merit. Defendant basically contends that the use of septic tanks has been approved by the Illinois Environmental Protection Agency and thus the village's exclusion of this approved process renders its ordinance vague and indefinite. Defendant further argues that she could have installed a cavitette for a fraction of the installation costs which defendant will ultimately have to pay to connect her premises to this sewage system. While these arguments are informative to this court, they are irrelevant as to whether this phrase in the ordinance is unconstitutionally vague or indefinite. An analysis of this clause clearly establishes that the village had determined that all sewage processing means which were approved by the Illinois Environmental Protection Agency would be permissible under this ordinance, except for septic tanks and fields. This clause of the ordinance is neither vague nor indefinite by any standard of evaluation because it gives the defendant "fair notice that certain conduct is proscribed" (Rabe v. Washington (1972), 405 U.S. at 315, 92 S.Ct. at 994, 31 L.Ed.2d at 260) and notes with specificity and clarity that certain means of processing sewage are permissible. Therefore we find that this phrase is neither vague nor indefinite and this ordinance does not violate defendant's rights to due process.

Defendant's equal protection argument is that the ordinance is invalid because it is only enforced in a portion of the village, while septic tanks and fields are permitted in the rest of the village. Defendant contends that the installation of a public sewage system in only her portion of the village amounts to discrimination against her and a violation of her equal protection rights under the law. Defendant cites Hawkins v. Town of Shaw (5th Cir. 1971...