Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

County of Lake v. Fox Waterway Agency

November 20, 2001

THE COUNTY OF LAKE, BY AND THROUGH ITS LAKE COUNTY STORMWATER MANAGEMENT COMMISSION, PLAINTIFF-APPELLEE,
v.
FOX WATERWAY AGENCY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 00--OV--3827 Honorable Michael J. Fritz, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

Ordered published January 2, 2002.

THE COUNTY OF LAKE, BY AND THROUGH ITS LAKE COUNTY STORMWATER MANAGEMENT COMMISSION, PLAINTIFF-APPELLEE,
v.
FOX WATERWAY AGENCY, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Lake County. No. 00--OV--3827 Honorable Michael J. Fritz, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

Defendant, Fox Waterway Agency (FWA), appeals the denial of its motion for summary judgment and the grant of summary judgment for plaintiff, the County of Lake, by and through its Lake County Stormwater Management Commission. Defendant asserts that the trial court erred by finding that the Lake County Stormwater Management Commission (the Commission) has authority over a project that has been under defendant's control. Defendant argues that, since the project property is owned by the State of Illinois and because the property is not located in a designated floodway, the circuit court erred in finding that the Commission had the authority to require defendant to apply for and obtain a permit from the Commission. For reasons not directly asserted by the parties, we reverse summary judgment for plaintiff and grant summary judgment for defendant.

I. FACTS

Grass Island is located in Grass Lake, which in turn is located within the Chain O Lakes in Lake County. Over the past 25 years, Grass Island has lost great amounts of its square area. In August 1999, defendant became engaged in "the geotube project," designed to rebuild the island. The geotube project involves the use of large fabric tubes into which dredge spoil from lake bottom sediment or materials is inserted. The tubes are laid end to end on top of each other, apparently in a square design, thereby creating an enclosure, into which additional dredge material is added. When enough material has been added to bring the area up to the specified grade levels, native vegetation is planted, and the area becomes a refuge for birds and plants. The defendant's plans specify that the island should reach an elevation of 738.50 feet. The floodplain elevation (or base flood elevation) on Grass Lake, as designated by the Federal Emergency Management Agency (FEMA), is 741.8 feet. The normal summer water level on Grass Lake, as fixed and artificially maintained by the Illinois Department of Natural Resources (IDNR) by means of the use of locks and dams is 737.30 feet. Prior to beginning the project, defendant obtained permits from IDNR and the Chicago District of the United States Army Corps of Engineers (ACOE). Defendant did not apply for a permit from the Commission.

The Commission notified defendant several times of its failure to obtain a permit in violation of its watershed development ordinance (ordinance) (Lake County Watershed Development Ordinance art. IV, §1 (eff. October 18, 1992)). These warnings culminated in a stop-work order issued to the defendant and the filing of a complaint in the circuit court of Lake County on June 7, 2000. Plaintiff sought a declaration that defendant must obtain a $340 permit from the Commission and asserted that the construction of the island with a portion above the water level of Grass Lake would displace floodplain water storage volume. Defendant admitted in its answer that the land will be above the mean summer normal water levels but denied that displacement would occur, because the water levels of Grass Lake are artificially controlled by the Algonquin Dam and the Stratton Lock and Dam, which are controlled by the IDNR and the ACOE. The parties submitted a joint statement of stipulated facts and filed cross-motions for summary judgment.

In its motion for summary judgment, plaintiff asserted that its authority to regulate defendant's activities arose from its agreement with the Illinois Department of Transportation (IDOT) and later, the IDNR, which took over IDOT's authority. This agreement delegated permit authority to the Commission in the 100-year floodway. Plaintiff also asserted that the Counties Code (55 ILCS 5/--1001 et seq. (West 1998)) gave it the authority to regulate zoning and floodplains. Since the reconstructed Grass Island would be located 6 to 12 inches above the normal summer water level of 737.30 feet, plaintiff asserted that "a substantial number of acres of floodplain water volume will be displaced." Further, plaintiff argued that neither the IDNR's nor ACOE's exemption for state projects applied to defendant and that both permits recognized the permittee's responsibility to obtain local approval. Plaintiff argued that, since both parties are units of local government, Wilmette Park District v. Village of Wilmette, 112 Ill. 2d 6 (1986), required that cooperation between them be given great emphasis, and in that spirit, its ordinance should be enforced against defendant.

In its own motion for summary judgment, defendant asserted that, since the water in Grass Lake was artificially manipulated by the IDNR's control over a dam located on Grass Lake, the water could not fall below the FEMA's base floodplain elevation. Defendant argued that the project will not reach the floodplain base elevation, is not in the 100-year floodway and, thus, is outside the Commission's authority over a floodplain.

The trial court granted plaintiff's motion for summary judgment and denied defendant's. The court found that the part of the new island that would rise above the normal water level of Grass Lake was in the floodplain and that the Commission had jurisdiction over the geotube project through Lake County's ordinance. The court found no statutory exemption available to defendant and ordered defendant to apply for and obtain a permit. By agreement of the parties, the project was allowed to continue.

Defendant filed a motion for reconsideration, arguing that, in accordance with the court's order, it had forwarded the application for the permit to the IDNR for signature and that the IDNR had responded by asserting this was a state project and was not, therefore, subject to the Commission's permit process. Plaintiff argued in response that defendant's assertion that this was a state project conflicted with the joint statement-of-facts' provision that it was an FWA project. Plaintiff characterized this attempt as a "make over" and argued against defendant's motion on the basis that defendant had not offered any new evidence. The circuit court agreed that the defendant's motion for reconsideration raised no new evidence, but it ruled on the merits in order to do substantial ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.