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07/22/94 MARIO LUPERINI AND FILOMENA LUPERINI v.

July 22, 1994

MARIO LUPERINI AND FILOMENA LUPERINI, PLAINTIFFS-APPELLANTS,
v.
THE COUNTY OF DU PAGE AND DOWNERS GROVE TOWNSHIP HIGHWAY COMMISSION, DEFENDANTS-APPELLEES (DU PAGE COUNTY DEPARTMENT OF ENVIRONMENTAL CONCERNS, DEFENDANT).



Appeal from the Circuit Court of Du Page County. No. 91-MR-657. Honorable John S. Teschner, Judge, Presiding.

Petition for Leave to Appeal Denied December 6, 1994.

Doyle, McLAREN, Quetsch

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Plaintiffs, Mario and Filomena Luperini, filed a complaint for a writ of mandamus in the circuit court of Du Page County against defendants, the County of Du Page (County), Du Page County Department of Environmental Concerns, and Downers Grove Township Highway Commission (Commission), seeking to compel the institution of condemnation proceedings. In their complaint, plaintiffs alleged that defendants' installation of a storm sewer on an adjoining parcel of land caused a diversion of runoff water onto their property resulting in a physical invasion of their property tantamount to an unconstitutional taking. Du Page County Department of Environmental Concerns was dismissed as a defendant, and the parties subsequently filed cross-motions for summary judgment. Following a hearing on the parties' respective motions, the circuit court denied plaintiffs' motion and granted defendants' motion.

Plaintiffs timely appeal, raising the following issues: (1) whether the trial court erred in determining as a matter of law that defendants' diversion of runoff water onto plaintiffs' property was not a taking; and (2) whether the trial court erred in denying plaintiffs' motion for summary judgment. The Commission has filed with this court a motion to strike portions of plaintiffs' statement of facts and certain documents contained in the record.

Having reviewed plaintiffs' statement of facts, the pertinent portions of the record, and the Commission's alternative statement of facts, we agree that plaintiffs' use of the term "continuous" to describe the state of flooding on their property and their characterization of the trial court's December 22 order as a denial of their motion to file complete depositions are both arguably imprecise and potentially misleading. Because our review, however, is not otherwise hindered by these discrepancies, and in light of the fact that the Commission has not otherwise moved to strike the plaintiffs' entire statement of facts or brief, we will proceed to consider plaintiffs' brief while ignoring any inappropriate content. See City of Highwood v. Obenberger (1992), 238 Ill. App. 3d 1066, 1073, 179 Ill. Dec. 65, 605 N.E.2d 1079.

Turning to the merits, although the parties have raised several substantive and procedural issues related to the propriety of the trialcourt's grant of summary judgment in favor of defendants, we find it unnecessary to reach all of the issues because the determinative issue on appeal is whether the trial court correctly determined as a matter of law that plaintiffs had no clear right to compel the initiation of condemnation proceedings.

In their complaint, plaintiffs alleged that they owned the subject property, and a house located thereon, since 1946. Sometime in 1987, a storm sewer was installed adjacent to Timber Lake. As a result of the storm sewer installation, runoff water, which previously flowed away from plaintiffs' property, was diverted and flowed from Timber Lake onto and over plaintiffs' property. The diverted runoff water has caused substantial damage, including the creation of artificial wetlands and floodplain, and flooding of plaintiffs' basement and garage. The complaint alleged further that "the artificial designation as a wetland and floodplain has resulted in a diminution in value of plaintiffs' property."

Additionally, sometime in 1987 and thereafter, the failure of one or more of the defendants to control erosion in the Sawmill Creek caused water to back up onto plaintiffs' property. Because of the water back up, "a damaging of plaintiffs' property" occurred, resulting in "an excessive determination of floodplain and floodway."

The Commission moved for summary judgment, contending that plaintiffs' complaint did not set forth a clear right to mandamus. Attached to the Commission's motion were two letters to plaintiff's counsel from R.W. Lindley, plaintiffs' expert. Plaintiffs apparently raised no objection in the trial court to the attachment of these letters. The letters generally attribute the flooding on plaintiffs' property to two sources: water diverted from Sawmill Creek because of inadequate erosion controls; and additional storm water runoff diverted from Timber Lake because of the storm sewer installation. In addition to identifying the sources of water, Lindley determined that the sustained flow of storm water, which resulted from the installation of the storm sewer, radically altered the stream hydroperiod. An environment, therefore, was provided for species of materials that produce conditions suitable for the designation of a portion of plaintiffs' property as wetlands. According to Lindley, the unnatural condition produced by the diverted water "seriously damaged" the subject property to the extent that as much as 40% of the property was encumbered with restrictions which denied plaintiffs reasonable use of their property.

The Commission maintained that Lindley's concession that there were two sources of water showed, at best, that the installation of the storm sewer only contributed to the flooding and was not the solesource. Therefore, because no clear right was demonstrated, the Commission was entitled to summary judgment.

In its motion for summary judgment, the County maintained, in part, that mandamus was an improper remedy because Lindley determined that the source of flooding was not a single source attributable solely to the County; that plaintiffs neither alleged nor established that the County had a duty to maintain the main channel of Sawmill Creek adjacent to their property; and that plaintiffs' property historically had been floodplain and wetlands prior to the installation of the storm sewer.

Attached to the County's motion were three exhibits: (1) a copy of a floodplain and wetlands report for the subject property prepared by Christopher Burke, a defense expert; (2) a copy of a letter, dated August 18, 1992, from Lindley to plaintiffs' counsel; and (3) one page of a deposition transcript, which, according to the County's motion, purports to be the testimony of Jeff Dailey, a county employee. The record ...


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