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12/30/88 the People of the State of v. Merlin Harris Et Al.

December 30, 1988

BAISE, SECRETARY OF THE DEPARTMENT OF TRANSPORTATION, PLAINTIFF-APPELLEE

v.

MERLIN HARRIS ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS ex rel. GREGORY W.

532 N.E.2d 1065, 177 Ill. App. 3d 1027, 127 Ill. Dec. 236 1988.IL.1949

Appeal from the Circuit Court of McLean County; the Hon. Wayne C. Townley, Jr., Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

Plaintiff, the Illinois Department of Transportation (Department), filed a complaint for injunctive relief against the defendants, Merlin and Eilene Harris, in the circuit court of McLean County. The complaint alleged that the defendants violated section 23 of "An Act in relation to the regulation of the rivers, lakes and streams of the State of Illinois" (Act) (Ill. Rev. Stat. 1985, ch. 19, par. 70), by constructing a stream enclosure on their property without approval or a permit from the Department. Following a hearing, the circuit court issued an order of mandatory injunction, compelling the defendants to remove the stream enclosure and restore the stream and overbank area to its original condition. Defendants now appeal.

For the following reasons, we affirm.

The salient facts are uncontested. Defendants Merlin and Eilene Harris, husband and wife, are owners of a city lot located at 103 North Center Street in Colfax, Illinois. An unnamed tributary of the Mackinaw River flows through the defendants' property. The parties agree that this stream is located in an urban area and drains more than one square mile of land.

On August 28, 1985, the Department became aware that the defendants had installed pipe culverts in the stream on their property. On August 29, 1985, Dennis L. Kennedy, a professional engineer with the Department's Bureau of Resource Management, Division of Water Resources, spoke with Eilene Harris. Ms. Harris informed Kennedy that she and Mr. Harris were doing work in the stream, but she assured Kennedy that no additional work would be performed until the Department had conducted an inspection of the site.

On September 6, 1985, Kennedy and Mike Diedrichsen, also a professional engineer with the Department, inspected the defendants' construction pursuant to the duties of the Department as set forth in section 23 of the Act (Ill. Rev. Stat. 1985, ch. 19, par. 70). During the inspection, the defendants informed Kennedy and Diedrichsen that they intended to enclose the stream running through their property with tubes measuring five feet in diameter, which would be placed in the stream bed and covered with dirt. Following their inspection of the site, Kennedy and Diedrichsen advised Ms. Harris that it would be necessary for the Department to evaluate the project pursuant to section 23 of the Act (Ill. Rev. Stat. 1985, ch. 19, par. 70) to determine whether the project would exacerbate existing flood problems in the area. They asked Ms. Harris to do no additional filling along the stream until the Department had made a determination.

Kennedy sent a letter to the defendants dated September 17, 1985, informing them that the stream enclosure project came under the jurisdiction of the Department and as the project had not received authorization, the construction was in violation of the Act. He advised the defendants to do no further construction on the project unless and until authorization was granted by the Department. The defendants were further informed that in the Department's opinion, placement of fill material and/or the elevation of the yard with fill would likely create an obstruction to flood flows. Kennedy stated that due to the significant flooding problems which currently existed in the vicinity of the project, no additional construction could be allowed without a detailed engineering analysis demonstrating that the proposed enclosure would not result in additional flood damage to neighboring properties. Kennedy enclosed an application for a permit but indicated that in the Department's opinion, an engineering analysis of the project would likely confirm that it would not be permissible.

Over the next several months, the defendants had a number of conversations with the Department about their proposed project and were repeatedly advised that little or no fill could be approved at the site due to existing flood problems in the area. In a letter dated October 21, 1985, Kennedy enclosed another permit application and again advised the defendants that any proposed fill should be kept to a minimum.

Then on October 28, 1985, the defendants submitted a permit application to the Department. The defendants signed the application as the applicants; however, the body of the document listed the City of Colfax as the applicant. Kennedy returned the application to the defendants in a letter dated November 7, 1985, and advised the defendants that they would have to submit a new application, correcting certain deficiencies. He also informed the defendants that they were required to submit surveyed cross-sections of specific locations and a complete set of project plans. Kennedy ...


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