Appeal from the Circuit Court of Kane County, Sixteenth
Judicial Circuit; the Hon. DAN B. WITHERS, JR., Judge, presiding.
Reversed and remanded with directions.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
The Aurora Sanitary District, plaintiff, filed a complaint demanding certain connection fees from the defendant Randwest Corporation, and subsequently filed a similar separate complaint against defendant New-Mark Builders, Inc. in connection with its subdivision known as Heritage Green. The cases were consolidated, and an amended complaint filed against the defendant New-Mark Builders, Inc., demanding connection charges for a subdivision known as Beau Ridge. Motions for summary judgment supported by affidavits and depositions were filed by both plaintiff and defendants. This appeal is from a judgment order granting plaintiff's motion for summary judgment and dismissing the defendants' motions.
Both defendants challenge the validity of the ordinance of the sanitary district under which the charges were levied. Defendant New-Mark Builders also raises an issue on the pleadings in the denial of its defense based upon the Statute of Limitations.
There are no disputed questions of fact. The Aurora Sanitary District was organized under an act passed in 1917 and which provided, as material at the time the questioned connection fee was imposed:
Every such sanitary district shall proceed as rapidly as is reasonably possible to provide sewers and a plant or plants for the treatment and purification of its sewage, which plant or plants shall be of suitable kind and sufficient capacity to properly treat and purify such sewage so as to conduce to the preservation of the public health, comfort and convenience and to render said sewage harmless, insofar as is reasonably possible to animal, fish and plant life. . . ." (Ill Rev Stats 1957, c 42, § 306.)
The district encompasses an area of approximately 35 square miles and collects and treats sewage for a population of approximately 87,000 persons.
In 1931 the district passed its Ordinance No. 38, regulating connections with the use of its sewers. The ordinance requires that a permit be obtained from the sanitary district for any connections being made to a "District Sewer," which is defined:
"(c) `District Sewer' shall mean any sewer constructed, maintained and/or operated by The Aurora Sanitary District, including any and all manholes, intercepting chambers or other appurtenances connected therewith.
On March 7th, 1958 the district passed its Ordinance No. 204, which required payment of a connection fee in certain instances before any permit required under its Ordinance No. 38 will be issued. The ordinance divided the district into two geographic areas designated as Class One and Class Two. The ordinance provided that before a connection permit for connection of buildings located in Class Two will be issued a connection fee of $160 for each single-family unit must first be paid to the plaintiff. It is expressly provided in the ordinance that no connection fee is required for the connection of buildings located in the Class One area. However, an inspection fee of $15 per single-family unit is required for connections made in the Class One area. Defendants' property was within the Class Two area.
The corporate boundaries of the City of Aurora are located within the corporate limits of the Aurora Sanitary District. The city has a sewer system of its own.
The defendants are engaged in the development of dwelling units in the City of Aurora. The defendant New-Mark Builders built 486 single-family homes, and the defendant Randwest built 37 multiple-family units, containing 232 single-family units, during the time material here.
Both defendant corporations are taxpayers of the plaintiff district.
Subsequent to the passage of plaintiff's Ordinance No. 204, both defendants connected numerous single-family units to the sewer system of the City of Aurora. The sewers to which the connections were made were installed and paid for by the defendants and were then accepted by, and became the property of, the City of Aurora. The sewers have since been maintained exclusively by the City.
The sewer system of the City is tributary to the Aurora Sanitary District sewer system and that part of the City sewer system to which the defendants connected their buildings joins the Sanitary District sewer system by connection to an interceptor constructed by the plaintiff in 1931 or 1932. The plaintiff has provided no new connection, interceptor or ...