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07/17/87 the Greater Chillicothe v. William R. Prather

July 17, 1987





510 N.E.2d 628, 157 Ill. App. 3d 1086, 109 Ill. Dec. 760 1987.IL.1015

Appeal from the Circuit Court of Peoria County; the Hon. Thomas G. Ebel, Judge, presiding.


JUSTICE GREEN delivered the opinion of the court. SPITZ, P.J., and LUND, J., concur.


Section 7 of the Sanitary District Act of 1917 (Act) states in part:

"Every [district created under the Act] 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 the sewage harmless, insofar as is reasonably possible to animal, fish and plant life." (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 42, par. 306.)

This case concerns a sanitary district organized under the Act within the boundaries of which are a single city and a substantial unincorporated area which is not as densely populated. The district has provided a treatment plant, a pumping station and an interceptor sewer within the city. The city has provided lateral sewers providing service to the entire city. The crucial question presented concerns the duty, if any, of the district to provide sewers to service the unincorporated areas of the district.

On January 24, 1984, plaintiff, the Greater Chillicothe Sanitary District of Peoria County, Illinois (District), organized under the Act, brought suit in the circuit court of Peoria County against defendant, William R. Prather. The complaint alleged that defendant had demanded that the District build a sewer to his property which lies outside the city of Chillicothe (city), the District's only municipality. The District requested the court to make a declaration as to its obligation to build such a line and as to the manner in which such a project should be financed if it were so ordered. After issue was joined, the court held a bench trial at which most of the evidence consisted of stipulations.

On February 5, 1986, the court entered a judgment declaring that the District had no duty to build such a line. Then, on defendant's motion, the judgment was vacated. After hearing further evidence, the court entered a judgment on May 7, 1986, declaring that the District was obligated "to provide sewer lines for the defendant, and all other unserviced residents within the sanitary district, as rapidly as is reasonably possible." The judgment also declared that the defendant pay a "fair and reasonable charge for connection" to the District's sewer in an amount to be fixed by the District but not to exceed $200.

The District has appealed contending: (1) any declaration in regard to unserviced persons other than defendant was improper, because no showing was made that a controversy existed as to them; (2) only defendant should pay for an extension to his property because such an extension was in the nature of a local improvement; (3) the District has delegated the responsibility of constructing lateral sewers to the city, and the defendant has recognized that delegation by a request that a line to his property connect to lateral sewers belonging to the city; (4) defendant is estopped to claim a right for the installation of a sewer to his property because his predecessor in title previously rejected an offer of the District to build such a sewer; and (5) even if the District is required to build such a sewer, the court improperly ruled as to the amount the District might charge defendant to connect to the sewer. Upon leave being granted, the Illinois Association of Sanitary District has filed a brief amicus curiae asking us to hold that the District had no duty to construct the line in question.

The problem faced by the circuit court and now facing us arises from the following set of facts which the parties agree to exist. As we have indicated, the area of the District consists not only of that within the corporate limits of the city but a substantial, less densely populated area on three sides of the city. The sewers built by the District are all interceptor sewers, and none exist beyond the corporate limits of the city. The city has then provided lateral sewers to various parcels of property within the city. The owners of property in the District, both inside and outside of the city, have paid property taxes and fees inuring to the District. These funds have been used to retire the bond issue for the construction of the treatment plant, pumping station and interceptor sewer and have been used for the operation of those facilities. Property owners in the area outside the city have not been required to pay for the construction or operation of the lateral sewers serving property within the city.

The parties further agree that the following facts are also pertinent to the instant dispute. Defendant's premises are outside the city but are bounded on United States Route 29, which is a boundary of the city. His property has no direct access to a District or city sewer, but a city lateral sewer runs on the side of Route 29 opposite to his property. The city has agreed that a sewer from defendant's land may be attached to that lateral sewer. The cost of installing such a sewer under Route 29 would have been approximately $21,000. The closest District interceptor lies approximately one-half of a mile from defendant's tract and the approximate cost of installing a sewer from defendant's property to that interceptor would have been $100,000.

We agree with the District that the question of its duty to its other unserved property owners was not properly before the circuit court. The proceeding before the court was one for a declaratory judgment, the basic predicate for which is an actual dispute between the parties. (Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 362 N.E.2d 298; Ill. Rev. Stat. 1983, ch. 110, par. 2-701.) Clearly such a situation existed between the District and defendant, who had demanded the construction of a sewer line. No showing was made of a similar demand by others. Defendant maintains that we cannot determine whether the District has a duty to build a line to defendant's property without determining the District's duty ...

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