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Bollweg v. Richard Marker Associates

November 4, 2004

MICHAEL J. BOLLWEG, PLAINTIFF-APPELLEE,
v.
RICHARD MARKER ASSOCIATES, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kendall County. No. 03-CH-187. Honorable Leonard J. Wojtecki, Judge, Presiding.

The opinion of the court was delivered by: Justice Callum

PUBLISHED

I. INTRODUCTION

Plaintiff, Michael J. Bollweg, obtained a preliminary injunction preventing defendant, Richard Marker Associates, Inc., from changing the existing flow of water from defendant's property across plaintiff's property. Defendant has brought this interlocutory appeal. We affirm.

II. BACKGROUND

On November 5, 2003, plaintiff filed a complaint for damages and injunctive relief. He and defendant own adjoining properties. Plaintiff's property lies between defendant's property and the Fox River. Defendant began developing its property, once agricultural, into a residential development. Plaintiff alleged that, before the development, the storm water that fell onto defendant's property either seeped into the ground or flowed across plaintiff's property in a natural sheeting fashion. According to plaintiff, the development altered the natural flow of storm water and caused excess water, silt, and debris to flow onto his property. Defendant raised the affirmative defenses that (1) its storm water management system complied with the relevant municipal ordinances; (2) the "unclean hands" doctrine barred relief because plaintiff refused defendant's reasonable request to install at its cost an underground pipe to transport storm water across plaintiff's property; and (3) after learning of defendant's plans, plaintiff waited over one year, until after defendant began constructing the storm water management system, to file suit.

On January 26, 2004, plaintiff moved for a preliminary injunction. The hearing on the motion took place during eight sessions between March 15, 2004, and April 14, 2004. The evidence reveals the following. Plaintiff's and defendant's properties were once part of the Taus farm. In 1986, plaintiff purchased 17 acres from the Taus family trust. He had the property rezoned for residential use and constructed his home on the property. Also, plaintiff uses his property as a commercial nursery. Plaintiff's property is in unincorporated Kendall County. The remainder of the Taus property continued to be used as a farm.

In October 2001, defendant contracted to purchase, for $4.28 million, 129 acres from the Taus family trust for the purpose of constructing 262 single-family homes. The final subdivision plat was recorded in July 2002, and the City of Yorkville (City) annexed the property. Defendant closed on the sale in January 2003. The City approved the final engineering plans during the summer of 2003, and construction began in August 2003. Defendant's property is immediately north of plaintiff's property. Nearby, south of plaintiff's property, is the Fox River.

Surface water from the southeast side of the Taus farm flowed into catchment No. 10, a tributary near plaintiff's property line. From there, the water flowed into culverts underneath plaintiff's gravel driveway, which runs along the property line. After exiting the culverts, the water flowed for some distance over grassy swale, over a wooded area, and then into a small stream on plaintiff's property. When both plaintiff's and defendant's properties were part of the Taus farm, an agricultural drain tile ran along the eastern edge of the property. The tile currently carries water under plaintiff's property and empties into the stream. The stream leaves plaintiff's property and flows into a pond. The pond empties into a canal lined with wood beams. The canal runs under a gravel road and eventually empties into the Fox River. Plaintiff's home sits on the northeast corner of the property, about 150 feet from the path of drainage.

Surface water from the southwest side of the Taus farm flowed into catchment No. 17. From there, it moved onto plaintiff's property and flowed through a culvert underneath plaintiff's driveway. The water flowed over open ground and then into plaintiff's woods.

Steven Roake, a civil engineer, testified that his firm, Roake and Associates, designed the storm water management system for the development. Roake designed the system to comply with the applicable Yorkville ordinances. Before defendant purchased its property, water from 62.7 acres of the Taus farm flowed into catchment No. 10. The engineering plans called for modifying the topography of defendant's property so that more water will flow in the direction of catchment No. 10. When the development is completed, surface water from 81 acres of defendant's property will flow into catchment No. 10. Roake testified that the development will result in an increase in the amount of storm water flowing into catchment No. 10, but he could not quantify the increase.

Defendant constructed retention ponds at the southwest and southeast corners of its property. A diaphragm regulates the release of water from the ponds. Water from the southeast pond is discharged through a pipe that empties into a stilling basin containing a level spreader, which creates a "waterfall" rather than a "shooting" effect. The basin is lined with large rocks that help to filter out sediment before the water flows onto plaintiff's property. Water from the stilling basin flows across the ground onto plaintiff's property and then into the culverts underneath plaintiff's driveway.

Underneath the stilling basin is perforated field drainage tile that allows residual water in the basin to drain away. The perforated field tile is connected to an existing eight-inch agricultural tile that ran across defendant's and plaintiff's properties. Defendant removed the agricultural tile on its property except for a small segment that connects to the new perforated field tile. Defendant did not obtain plaintiff's consent to connect to the agricultural tile.

Roake testified that, because the flow from the pond will be regulated, it will take about three times as long for storm water to flow off of defendant's property. He acknowledged that the soil on plaintiff's property could become more saturated as a result. Roake opined, however, that defendant's storm water management system will benefit plaintiff because it will reduce the flow during peak discharge periods. Before the development, 110 cubic feet of water flowed onto plaintiff's property per second. After the development, the flow will be reduced to 12 or 13 cubic feet per second. The primary effect the development will have on plaintiff's property is related to the duration of flow instead of the amount of water.

Sometime before the preliminary approval of the project in November 2002, Roake met with plaintiff and viewed plaintiff's property. Roake proposed having defendant install at its own cost an underground pipe across plaintiff's property, beginning at the southeast retention pond discharge point. Roake brought up structuring the arrangement as either an easement or a license. Plaintiff asked Roake to leave behind some wood stakes, which plaintiff used to mark where he wanted the pipe to be installed. Roake's crew surveyed plaintiff's property and incorporated the proposed location of the underground pipe into the engineering plans.

During the hearing to approve the annexation and the development, plaintiff spoke and stated that he no longer desired any activity on his property. Roake testified that, at some point, plaintiff expressed concern about his property being burdened by an easement.

James Koziol, a licensed public engineer, testified as plaintiff's expert. His firm is involved in about 100 storm water management projects per year, about half of which involve the design of storm water management facilities. He performed a comparative analysis of the flow from defendant's property onto plaintiff's property before and after the development. For a 100-year storm event, an additional 1.49 million gallons of water, or 4.59 acre-feet, will flow across plaintiff's property after defendant's property is developed. This represents a 15% increase in the volume of runoff, which, according to Koziol, is typical for a development like the one defendant proposed.

Koziol's report states that he assumed that a 100-year storm produces 7.58 inches of rain. The computer-generated figures attached to the report appear to be based on an assumption of 8.47 inches. Koziol acknowledged that the use of the higher figure would change his calculations.

Koziol also calculated flow durations for various storm events. For example, before the development, it took 19 hours for the water resulting from a one-year storm to drain across plaintiff's property. After the development, the flow duration will be 134 hours. According to Koziol, soil that is exposed to water for a longer time tends to become more saturated. He acknowledged, however, that, because of the reduced flow rate, the runoff after the development presented less risk of erosion, and it was less likely that the watercourses on plaintiff's property would overflow.

Koziol based his calculations on the assumption that, both before and after the development, water from 81 acres of defendant's property flowed onto plaintiff's property. When presented with the information that, before the development, water from only 62.7 acres of defendant's property flowed onto plaintiff's property, Koziol testified that the change in flow would be greater.

Joseph Wywrot, Yorkville's city engineer, testified that the development will result in an increase in the volume and duration of the flow across plaintiff's property. He reviewed the storm water management plan to determine whether it complied with the Yorkville subdivision control ordinance but did not calculate the amount or duration of flow resulting from the development. According to Wywrot, the increase in the volume of storm water was not something that he needed to consider when determining whether the plan complied with the ordinance. To Wywrot's knowledge, the agricultural tile left in place had not been inspected.

During the construction of the development, plaintiff called Wywrot more than once to complain of excess water flowing onto his property as a result of dewatering activities on defendant's property. Wywrot contacted defendant's contractors, who remedied the problems. Wywrot testified that the incidents ...


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