Rock River Water Reclamation Dist. v. Sanctuary Condominiums of Rock Cut

30 N.E.3d 1081

ROCK RIVER WATER RECLAMATION DISTRICT, Plaintiff–Appellee

v.The SANCTUARY CONDOMINIUMS OF ROCK CUT, Defendants–Appellants (Unknown Owners, Defendants).

No. 2–13–0813.

Appellate Court of Illinois, Second District.

Dec. 11, 2014.

Richard B. Kirk, of Schirger Law Offices, LLC, of Rockford, for appellants.

Joshua G. Vincent and Thomas J. Lester, both of Hinshaw & Culbertson LLP, of Chicago, for appellee.

OPINION

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

¶ 1 The instant dispute concerns a proposal by plaintiff, Rock River Water Reclamation District, to build a sanitary sewer extension (Oak Crest project) to a residential development known as the Oak Crest subdivision. In October 2010, plaintiff adopted an ordinance providing for construction of the Oak Crest project. Connecting the Oak Crest project to the existing sanitary sewer system would require installation of a “trunk line” running beneath property belonging to defendant The Sanctuary Condominiums of Rock Cut. As a result, plaintiff sought to obtain from defendant both a permanent easement and a temporary construction easement. In April 2011, after discussions to acquire the easements broke down, plaintiff filed in the circuit court of Winnebago County a complaint for condemnation. On defendant's motion, the trial court dismissed plaintiff's complaint on the bases that the ordinance authorizing construction of the Oak Crest project failed to state that a taking of defendant's property was necessary and failed to describe with reasonable certainty the property sought to be taken.

¶ 2 Thereafter, plaintiff enacted another ordinance in an effort to cure the deficiencies identified by the trial court. Plaintiff then offered defendant $2,700 for the easements, double their appraised value. Defendant rejected plaintiff's offer, and, in January 2012, plaintiff initiated a new condemnation action. Defendant unsuccessfully moved to dismiss the second condemnation action on the grounds of res judicata and improper notice. Defendant then filed a traverse and motion to dismiss, which the trial court denied following a bench trial. The court subsequently determined that $1,350 was just compensation for the easements. Defendant then filed a notice of appeal. On appeal, defendant raises three principal issues. First, defendant contends that the trial court erred in denying its motion to dismiss plaintiff's second condemnation action on the ground of res judicata. Second, defendant challenges the trial court order denying its traverse and motion to dismiss. Third, defendant argues that the trial court erred in refusing to compensate it for any damage that installation of the proposed trunk line would cause to its property. For the reasons set forth below, we affirm the judgment of the circuit court.

¶ 3 I. BACKGROUND

¶ 4 Plaintiff is an Illinois unit of local government that is organized under the Sanitary District Act of 1917 (Sanitary Act) (70 ILCS 2405/0.1 et seq. (West 2010)) and provides wastewater conveyance and treatment services to certain properties located in and around Rockford. On July 26, 2010, plaintiff's committee on local improvements (Committee) adopted a resolution to build the Oak Crest project and to levy a special assessment to pay for it (First Resolution). See 70 ILCS 2405/22a.5 (West 2010). The First Resolution set forth a legal description of the property to be served by the Oak Crest project. The First Resolution also called for a public hearing on the Oak Crest project and directed that notice of the hearing “shall be sent by mail to the person or entity shown by the County Collectors current warrant book to be the party in whose name the general real estate taxes were last assessed on each lot, block, tract or parcel of land fronting on the proposed improvement.” See 70 ILCS 2405/22a.5 (West 2010).

¶ 5 On August 23, 2010, the public hearing was held to allow comments and questions regarding the Oak Crest project. The Committee met immediately after the hearing and adopted another resolution (Second Resolution). See 70 ILCS 2405/22a.6 (West 2010). The Second Resolution noted that a public hearing had been held “on the question of the desirability of the proposed local improvement to be paid for by special assessment” and that “no sufficient objection was made to the proposed improvement.” Accordingly, the Committee recommended “that the proposed improvement be made in accordance with an ordinance authorizing the same.”

¶ 6 On October 25, 2010, plaintiff's board of trustees adopted Ordinance No. 10/11–S–02 (2010 Ordinance) (Rock River Water Reclamation District Ordinance No. 10/11–S–02 (adopted Oct. 25, 2010)). See 70 ILCS 2405/22a.5 (West 2010). The 2010 Ordinance provided that “[a] local improvement * * * to be paid for by special assessment shall be constructed in the Rock River Water Reclamation District * * * consisting of sanitary sewers benefiting and potentially serving” the properties legally described therein, which properties were designated collectively as the “Oak Crest Sanitary Sewer Area.” Rock River Water Reclamation District Ordinance No. 10/11–S–02 (adopted Oct. 25, 2010). The 2010 Ordinance authorized a levy upon the property owners in said area to pay for the improvement and incorporated by reference a plat map of the Oak Crest project.

¶ 7 To connect the Oak Crest project to the existing sanitary sewer system, plaintiff proposed running a “trunk line” beneath defendant's property, thereby requiring plaintiff to obtain a permanent easement and a temporary construction easement. Between January 17, 2011, and March 24, 2011, representatives for the parties met on at least three occasions to discuss the acquisition of the easements, but they were unable to reach an agreement. As a result, on April 7, 2011, plaintiff filed its first complaint for condemnation against defendant (2011 Complaint or first condemnation action). Citing section 15 of the Sanitary Act (70 ILCS 2405/15 (West 2010) ), the 2011 Complaint provided that “[p]laintiff may acquire by condemnation, all real property, right of way in privilege, either within or without its corporate limits, which may be required for its corporate purposes.” The 2011 Complaint alleged that to proceed with the Oak Crest project it was necessary to acquire a permanent easement and a temporary construction easement. Attached to the 2011 Complaint was an unexecuted easement describing the land to be taken and a plat map. Defendant moved to dismiss the 2011 Complaint on two grounds. First, defendant argued that the 2010 Ordinance failed to state that the Oak Crest project required the taking of defendant's property. Second, defendant argued that the plat map attached to the 2010 Ordinance failed to reasonably describe the portion of defendant's property to be taken.

¶ 8 In a memorandum of decision and order entered on September 22, 2011, the trial court granted defendant's motion to dismiss the 2011 Complaint. The court reasoned as follows:

“Under the [Sanitary Act], in order to proceed with a sewer construction project, [plaintiff] must prepare and approve an ordinance describing the improvement. 70 ILCS 2405/22a.6. The statute requires that ‘if the improvement requires the taking or damaging of property, the ordinance shall so state ...’ Id. Illinois caselaw has further held that whenever a proposed improvement will require that private property be taken or damaged, it is required that the enabling ordinance ‘shall describe the property to be taken or damaged with reasonable certainty.’ City of Kankakee v. Dunn, 337 Ill. 391, 393 [169 N.E. 251] (1929).

In the present case, the Court finds that neither the [2010 Ordinance] nor the attached plat map state[s] that a taking of Defendant's property is necessary, nor do they describe the portion of [defendant's] property to be taken with reasonable certainty. The ordinance itself fails to mention the Defendant's property or the fact that the proposed improvement will require that easements be obtained by [plaintiff]. The Plaintiff * * * argues that this information is provided by the plat map referred to by the [2010] Ordinance. However, the plat map does not state that Defendant's property will be taken. Moreover, it is the Court's opinion that the plat map fails to reasonably describe the portion of [defendant's] property to be taken for several reasons. First, the map is not drawn to scale. Second, the map does not state the length, width or total amount of the land to be taken. Third, the map does not state whether [defendant's] land is to be taken by easement, fee simple, or some other method. The map simply shows the path of the proposed off-site sewer as it progresses through [defendant's] property with dotted lines on each side of the sewer lines' path which is labeled ‘project area’.

The Illinois Supreme Court has held that a line on a map is not sufficient to provide a reasonable description of the condemned property. City of Kankakee v. Dunn, 337 Ill. at 395 [169 N.E. 251]. The Court does not find that the inclusion of more lines cures the deficiency. The word ‘easement’ does not appear in the [2010 Ordinance] or on the map. There are no estimates regarding the amount of land to be taken. The plat map simply shows the scope of the project. The Court does not believe that it was ever intended to describe with reasonable certainty the amount of Defendant's land needed to be taken by [plaintiff]. While it is not improper to attach a map to an enabling ordinance, neither the [2010 Ordinance] nor the map contain[s] a statement that [plaintiff] requires the taking or damaging of Defendant's * * * land in order to proceed with the Oak Crest Subdivision Sanitary Sewer Project. The [2010 Ordinance] is silent on the subject while the map simply shows a series of lines going through Defendant's property.

Statutes conferring and ordinances enabling the power of eminent domain must be strictly construed in order to

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