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12/19/95 JOSEPH ROMANO v. VILLAGE GLENVIEW

December 19, 1995

JOSEPH ROMANO, FRANK CHIODO, LESTER HAGAN, RICHARD BECKER, PAUL KANZER AND JAN GRODECKI, PLAINTIFFS-APPELLANTS,
v.
VILLAGE OF GLENVIEW, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE, AND AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS TRUSTEE UNDER TRUST NO. 100875-02 DATED DECEMBER 15, 1986, WEDGEWOOD DRIVE ASSOCIATES, LTD., AN ILLINOIS LIMITED PARTNERSHIP, AND THOMAS W. STREY, DEFENDANTS. (THE GLENVIEW PARK DISTRICT, INTERVENING DEFENDANT-APPELLEE.)



Appeal from the Circuit Court of Cook County. Honorable Albert Green, Judge Presiding.

The Honorable Justice Hartman delivered the opinion of the court: Scariano, P.j., and Burke, J., concur.

The opinion of the court was delivered by: Hartman

The Honorable Justice HARTMAN delivered the opinion of the court:

Plaintiffs, homeowners within a subdivision developed by Wedgewood Drive Associates, Ltd. (Wedgewood), initiated an action for injunctive and declarative relief, seeking to prevent the Village of Glenview (Glenview) from abusing easements granted to it for "underground utilities, water, sewer and drainage easements." The circuit court granted Glenview's motion for judgment on the pleadings, pursuant to section 2-615(e) of the Code of Civil Procedure (735 ILCS 5/2-615(e) [improperly denominated "2-615(b)"] (West 1994) (section 2-615(e))). Plaintiffs appeal.

The issues presented are whether (1) Glenview is immune from liability; (2) plaintiffs have standing to contest Glenview's use of the drainage easement; and (3) additional grounds exist to affirm the decision of the circuit court.

Plaintiffs' amended complaint alleged that they are owners of various real estate parcels located in a subdivision in Glenview, adjacent to the Glenview Park District Golf Course ("Golf Course"). Wedgewood was the developer of the subdivision. Prior to the development, the natural flow of surface water went from the development towards the Golf Course. In its subdivision development plan approved by Glenview, Wedgewood granted Glenview easements, at the rear and sides of plaintiffs' properties for "underground utilities, water, sewer and drainage ***."

During development, Glenview instructed Wedgewood to dig swales on the easements, in order to detain and pond water above ground to a depth of four feet, on plaintiffs' properties. By November 1987, plaintiffs had either signed contracts to purchase their homes or had moved into them. After that time, Glenview and Wedgewood changed the plans for the swales by making them deeper. The deeper swales are alleged to have altered the natural flow of surface water so that water from the development no longer flows onto the Golf Course, but have resulted in erosion and flooding on plaintiffs' properties, as well as safety hazards for the children who reside in the subdivision.

In May 1989, plaintiffs filed an amended complaint, which sought to enjoin defendants from performing additional work on the drainage system, an order that the swales be removed and replaced by underground drainage systems, and an order that the natural flow of the water be restored towards the Golf Course. Plaintiffs also sought a finding that the deepened swales were a misuse of the easements.

The Glenview Park District (Park District) filed a petition to intervene when it discovered that plaintiffs wished to redirect water onto the Golf Course. The petition to intervene was granted.

In September 1989, Glenview answered the amended complaint setting forth the following affirmative defenses: plaintiffs failed to state a cause of action, injunctive relief was not proper, the drainage easements had not been misused, and plaintiffs lacked standing. Plaintiffs did not file a reply to these affirmative defenses.

In February 1994, Glenview moved for judgment on the pleadings pursuant to section 2-615(e) on the grounds that it was immune from liability, plaintiffs lacked standing, and plaintiffs failed to state a cause of action for injunctive relief. The Park District adopted Glenview's motion to dismiss. On June 7, 1994, the circuit court granted the motion for judgment on the pleadings and entered a finding that there was no just reason to delay enforcement or appeal of the order. (See 155 Ill. 2d R. 304(a).) The court denied plaintiffs' motion to vacate the order and to reconsider. Plaintiffs timely filed a notice of appeal.

A motion for judgment on the pleadings admits the truth of all well-pleaded facts in the complaint and challenges only the legal sufficiency of the pleading. ( Bulatovic v. Dobritchanin (1993), 252 Ill. App. 3d 122, 127, 625 N.E.2d 26, 192 Ill. Dec. 66.) The issue raised is whether the challenged portion of the complaint, considered in the light most favorable to plaintiffs, is sufficient to state a claim upon which relief may be granted. Bulatovic, 252 Ill. App. 3d at 127.

I

Plaintiffs assert that the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (Ill. Rev. Stat. 1989, ch. 85, par. 1-101 et seq. (now 745 ILCS 10/1-101 et seq. (West 1994))) does not prohibit injunction suits against municipalities. The Park District responds that plaintiffs seek a form of ...


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