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Mckenzie v. Mcintosh

JULY 2, 1964.

MAX E. MCKENZIE, HIGHWAY COMMISSIONER OF MILTON TOWNSHIP, APPELLANT,

v.

ARTHUR T. MCINTOSH AND COMPANY, A DELAWARE CORPORATION, APPELLEE, AND THE COUNTY OF DUPAGE, A BODY POLITIC AND CORPORATE.



Appeal from the Circuit Court of DuPage County; the Hon. WILLIAM C. ATTEN, Judge, presiding. Affirmed.

CARROLL, J.

Rehearing denied July 31, 1964.

Plaintiff, Max E. McKenzie, Highway Commissioner of Milton Township in DuPage County, brought suit against Arthur T. McIntosh & Company, a subdivider under a DuPage County subdivision regulation requiring subdividers to deposit bonds or other securities with the Highway Commissioner in order to insure construction of streets in accordance with the County's regulations.

The complaint, which was filed in August of 1962, alleges that on January 20, 1956, the defendant deposited with the Highway Commissioner a bond in the sum of $85,000 to insure performance of street construction in Unit Two of a certain subdivision and that on February 18, 1957, defendant posted another bond, this one in the sum of $75,000, to insure performance of street construction in Unit Three of said subdivision. The above County regulation provides that the amount of the bond shall be an amount equal to the estimated cost of completion of road, etc. work, and this amount shall be estimated by a registered professional engineer approved by the County Board. The complaint goes on to allege that, "engineering estimates are that the cost of constructing said streets in accordance with the standards contained in the Subdivision Regulations is $300,000." After alleging that there is a deficiency in the amount of $140,000 in the bonds presently posted by the defendant, the plaintiff prays that the defendant be required to post with the plaintiff an additional $140,000 in bonds, certified checks or cash.

The defendant filed a motion to dismiss the complaint on the following grounds: (1) that plaintiff, as a matter of law, lacked the authority to seek the relief sought in the complaint, and (2) that the exclusive remedy for the enforcement of the ordinance is by the State's Attorney, under the terms of the ordinance, or by suit on the bonds. The trial court allowed plaintiff's motion and dismissed the complaint. Appeal was taken to the Supreme Court, however, the Supreme Court transferred the case to this court.

The statute which enables the County Board to regulate subdivisions reads in pertinent part as follows:

". . . and to provide by resolution that the map, plat or subdivision shall be submitted to the county board or to some officer to be designated by the county board for their or his approval. The county board shall have a qualified engineer make an estimate of the probable expenditures necessary to enable any person to conform with the standards of construction established by the board pursuant to the provisions of this Section. Each person who seeks the county board's approval of a map, plat or subdivision shall post a good and sufficient bond with the county clerk, in a penal sum sufficient to cover the estimate of expenditures made by the estimating engineer. The bond shall be conditioned upon faithful adherence to the rules and regulations of the county board promulgated pursuant to the authorization granted to it by this section. And in such cases no such map, plat or subdivision shall be entitled to record in the proper county or have any validity until it has been so approved." Ill Rev Stat 1955, chap 34, sec 29.05.

The sections of the DuPage County Subdivision Regulations pertinent to this case are:

"Section VII. Agreements

The final plat to be placed of record shall be accompanied by a statement signed by the owner or subdivider, setting forth the following: . . .

3. Surety bonds or certified checks shall be deposited with the Highway Commissioner for street grading, pavements, ending, sidewalks, trees and signs, alley improvements and storm sewer systems; and the County Clerk for sewerage systems and water supply systems; in amounts equal to the estimated cost of completion of all land improvements under their jurisdiction required to be installed by the owner or subdivider. The cost of improvements shall be in accordance with cost estimates prepared by a Registered Professional Engineer approved by the County Board.

If improvements are not completed within a two-year period of time by the subdivider, owner, or his contractor, the Surety Company shall be responsible for the completion of the work within the next 12 month-period. Cash bonds shall be used for the completion of the work as arranged by the County Board. Any unexpended balance shall be returned to the subdivider, or owner."

"Section XI. Required Land Improvements

No final plat shall be approved by the County Board without first receiving a report signed by the Highway Commissioner, Superintendent of Highways, and Health Officer certifying that the plans and specifications for improvements described therein have been prepared by a registered Professional Engineer and conform with the requirements under Section VII of this resolution, and meet the minimum ...


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