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The County of Lake and the Lake County Stormwater Management v. Campus Investments

January 27, 2012

THE COUNTY OF LAKE AND THE LAKE COUNTY STORMWATER MANAGEMENT
COMMISSION, PLAINTIFFS AND COUNTERDEFENDANTS-APPELLEES,
v.
CAMPUS INVESTMENTS, INC., AND ZERO ENERGY ESTATES, LLC, DEFENDANTS AND
COUNTERPLAINTIFFS-APPELLANTS.



Appeal from the Circuit Court of Lake County. No. 08-CH-2376 Honorable Mitchell L. Hoffman, Judge, Presiding.

The opinion of the court was delivered by: Justice Hutchinson

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.

Presiding Justice Jorgensen and Justice Bowman concurred in the judgment and opinion.

OPINION

¶ 1 In May 2008, defendants, Campus Investments, Inc., and Zero Energy Estates, LLC, began developing a residential community on an approximately 30-acre parcel of undeveloped land, which included 15 acres of wetland, in the Village of Grayslake (the Village). Plaintiffs, the County of Lake (the County) and the Lake County Stormwater Management Commission (the Commission), subsequently filed a verified complaint seeking injunctive relief, claiming that defendants violated the Lake County Watershed Development Ordinance (amended Oct. 10, 2006) (the ordinance) and the Lake County Highway Access Regulation Ordinance (amended Nov. 12, 2002) (the Highway Access ordinance) by not obtaining the permits required for development of wetlands and use of an access road. Defendants filed a counterclaim and, after a bench trial, the trial court entered a judgment granting a permanent injunction preventing defendants from further developing the property until they obtained the necessary permits and granting other relief. Defendants now appeal, contending that the trial court erred by holding that section 5-1062 of the Counties Code (55 ILCS 5/5-1062 (West 2008)) authorized plaintiffs to regulate wetlands and therefore the injunction was improper. We affirm.

¶ 2 I. BACKGROUND

¶ 3 The County created the Commission pursuant to section 5-1062 of the Counties Code. The Commission consisted of six county board officials and six mayors of municipalities located within the County and was responsible for implementing a countywide system of floodplain and stormwater management. Thereafter, the ordinance was adopted, establishing minimum floodplain and stormwater standards and regulations for the County. As revised, article IV of the ordinance requires a watershed development permit before the commencement of any development that would create a wetlands impact on an area defined as isolated waters within the County.

¶ 4 Campus Investments owned a parcel of undeveloped land located at 21157 West Rollins Road in the Village. Zero Energy Estates was the contract purchaser of the property. The property consists of approximately 30 acres, including 15 acres of wetland. The wetland portion of the property is adjacent to a 316-acre tributary and serves as a natural drainageway for the tributary. On May 24, 2008, defendants began developing the property by bringing in fill material, which was dumped and bulldozed on to the wetland on the property.

¶ 5 On June 20, 2008, plaintiffs filed their verified complaint. Count I alleged that defendants violated the ordinance by failing to obtain a watershed development permit before developing the property. Count I sought injunctive relief, enjoining defendants from further development until they obtained the proper permit and ordering them to restore the filled or impacted wetland. Count II alleged that defendants violated the Highway Access ordinance by using an access road to bring construction equipment to the property without first obtaining a permit to use the access road. Count II sought injunctive relief, enjoining defendants from accessing the property through the access road until they obtained a permit.

¶ 6 On August 26, 2008, defendants answered the complaint, denied the allegations, and asserted three affirmative defenses. On August 28, 2008, defendants filed their verified counterclaim, alleging that the provisions of the ordinance regulating isolated wetlands were improper extensions of the power granted to the County and were therefore unenforceable. The basis of defendants' counterclaim was that section 5-1062 of the Counties Code did not authorize plaintiffs to regulate isolated wetlands within incorporated villages.

¶ 7 A trial commenced on December 9, 2009. The trial record reflects that plaintiffs first called Glenn H. Westman to testify. Westman works for the Commission as a principal wetlands specialist. Westman testified that defendants' development activity impacted approximately 2.8 acres of wetland. Westman further testified that the wetland on the property was approximately 15 acres and that the total wetland, including the area not on the property, was approximately 16.5 acres. Westman testified that he inspected the property on May 27, 2008, because there was a report of earth activity occurring on the property. Westman testified that he took a series of photographs documenting the activity on the property. On cross-examination, Westman acknowledged that the primary benefit of wetlands was providing flood control by storing stormwater. Westman acknowledged that wetlands provided other benefits, such as providing a habitat for wildlife and aesthetic appeal. Westman further acknowledged that, of the 52 municipalities in the County, 14 have a person who is certified by the Commission to review and approve wetlands. The Commission would conduct the review and approval for the other municipalities.

¶ 8 Plaintiffs next called Darcy Hertel, an executive administrative assistant for the Commission. Her responsibilities include handling permit letters and sending out permits. Hertel testified that she was familiar with the subject property because her boyfriend owned farmland in the surrounding area, including across the street. Hertel testified that on May 24, 2008, her boyfriend called, telling her that defendants were unloading bulldozers on the property. Hertel then went to her boyfriend's farm, where she boards a horse, and noticed bulldozers working on the subject property.

¶ 9 Plaintiffs next called Mike Warner, executive director and chief engineer for the Commission. Warner testified that one of the purposes of the Commission was to establish minimum standards for countywide stormwater regulations. Warner testified that pursuant to a Supreme Court decision that changed the Army Corps of Engineers' authority over wetlands, the ordinance was amended to cover wetlands no longer under the jurisdiction of the Army Corps of Engineers. Warner testified that the property was part of tributary consisting of 316 acres, of which 16.5 acres was wetland. The property had 15 acres of wetland located at the base of the tributary. Warner testified that the 16.5 acres of wetland served as a drainageway for surrounding properties. Warner also explained how wetlands benefit drainage systems by acting as sponges and catching and holding stormwater.

ΒΆ 10 Warner further testified that the Village entered into an intergovernmental agreement ceding authority to the Commission to enforce the wetlands provisions of the ordinance. Warner testified that, although the Village was certified to enforce the ordinance, it was not certified to administer the wetlands provisions of the ordinance. According to Warner, the ordinance applied to wetland on the property, because the wetland was isolated waters within the County, the wetland was not under the Army Corps of Engineers' jurisdiction, and the development of the ...


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