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09/08/89 Stanley Cameron Et Al., v. Richard Hughes Et Al.

September 8, 1989

STANLEY CAMERON ET AL., PLAINTIFFS-APPELLANTS

v.

RICHARD HUGHES ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

548 N.E.2d 8, 191 Ill. App. 3d 557, 138 Ill. Dec. 778 1989.IL.1397

Appeal from the Circuit Court of Madison County; the Hon. Horace Calvo, Judge, presiding.

APPELLATE Judges:

JUSTICE GOLDENHERSH delivered the opinion of the court. HOWERTON and RARICK, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GOLDENHERSH

Plaintiffs Stanley Cameron, Donna J. Cameron, Charles W. Johnson, Mary M. Johnson, Kenneth E. Cook, and Kay F. Cook appeal from an order of the circuit court of Madison County dismissing count VI of their amended complaint because the complaint failed to state a duty owed by defendant City of Troy to plaintiffs. The crux of plaintiffs' appeal is whether the trial court erred when it dismissed count VI of plaintiffs' amended complaint. Only defendant City of Troy is involved in this appeal. The original property owners, the developers and builders are not parties to this appeal. We affirm.

The record reveals the following facts. Each of the plaintiffs purchased lots in the Summertree First Addition in the City of Troy. Prior to the execution of each contract, the original owners of the property allegedly submitted a preliminary plat and final plat of the Summertree First Addition to be reviewed and approved by defendant. The original property owners then subdivided and sold the property to various developers and builders who eventually sold their lots to plaintiffs. Neither the original owners nor the developers or builders furnished copies of the studies and plats of the proposed subdivision to the Soil and Water Conservation District. Defendant approved the plat without such reports.

Plaintiffs alleged that "had a report and opinion been obtained from the District, and the unstable condition of the soil and ground water ascertained, the plat approval process would either have been altered to impose reasonable construction requirements on the owner and developer to compensate for the water and soil problem or the proceedings terminated." Plaintiffs specifically alleged that the property was unsuitable for construction and development of residential buildup because the water table was near the surface of the land, making the land incapable of support footings, foundations and concrete flatwork. Eventually, water seeped into plaintiffs' basements and the lower level of the houses cracked and settled. The flat concrete floors, driveways and porches cracked and crumbled. Plaintiffs also alleged that defendant had a duty to regulate the planning design and feasibility of subdivisions as well as the contents of preliminary and final plats. (Ill. Rev. Stat. 1985, ch. 5, par. 127.2a; Ill. Rev. Stat. 1985, ch. 109, pars. 2, 3; Comprehensive Plan Ordinance, Zoning Ordinance & Building Code of the City of Troy.) Plaintiffs further alleged that the city had a duty to consider reports of the Soil and Water Conservation District concerning the submission of the preliminary and final plats of their subdivision.

Defendant filed a motion to dismiss. On May 6, 1987, the circuit court entered its order granting defendant's motion to dismiss count VI because "no facts are alleged that would give rise to any duty on the part of the defendant toward the plaintiffs."

The only issue before this court is whether the trial court erred when it dismissed count VI of plaintiffs' amended complaint. Resolution of this issue depends upon the interpretation and interrelationship of section 22.02a of the Soil and Water Conservation Districts Act (Ill. Rev. Stat. 1985, ch. 5, par. 127.2a) and sections 1 and 2 of "An Act to revise the law in relation to plats" (the Plat Act) (Ill. Rev. Stat. 1985, ch. 109, pars. 1, 2).

Plaintiff argues the public policy of the State and the duty of each person is to provide and maintain a healthful environment. (Ill. Const. 1970, art. XI, § 1.) Plaintiff points out that the General Assembly has emphasized the economic and environmental advantages from subdivision control and all incidental standards for approval of a proposed subdivision plat, and as such, the statutes in question establish standards which impose responsibility on the regulatory authorities charged with approval of plats. Thus, the statutes in question specifically establish a duty upon defendant to submit the proposed plat to the Soil and Water Conservation District prior to approval.

Defendant argues that this court must accept as true all well-pleaded facts and reasonably drawn inferences. (Bond v. Dunmire (1984), 129 Ill. App. 3d 796, 804, 473 N.E.2d 78, 84.) Although plaintiffs must allege facts which would demonstrate a duty on the part of defendant to protect plaintiffs, liability only arises when a municipality owes a special duty to a particular plaintiff different from the duty owed the public at large. (Swaw v. Ortell (1984), 137 Ill. App. 3d 60, 67, 484 N.E.2d 780, 785.) In this case, defendant argues, the Plat Act does not confer a special duty in favor of plaintiffs but rather the duty expressed in the Act is public in nature.

Whether a duty is owed to plaintiffs from defendant is a matter of statutory interpretation. Plaintiffs argue that defendant had a duty to seek and use a report from the Soil and Water Conservation District because defendant has a duty to protect the general health and safety of the public. However, this court finds that after ...


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