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The Town of Cicero, An Illinois Municipal v. the Metropolitan Water Reclamation District of Greater Chicago

August 10, 2012


Appeal from the Circuit Court of Cook County 10 CH 034318 Honorable Michael B. Hyman, Judge Presiding.

The opinion of the court was delivered by: Justice Palmer

JUSTICE PALMER delivered the judgment of the court, with opinion. Justices Garcia and Lampkin concurred in the judgment and opinion.


¶ 1 Plaintiff, the town of Cicero, on its own behalf and on behalf of its residents and property owners (Cicero), filed suit against defendant, the Metropolitan Water Reclamation District of Greater Chicago (the District), seeking monetary damages and injunctive relief after its residents allegedly sustained property damage as a result of flooding and sewage backup. The circuit court of Cook County dismissed the complaint pursuant to section 2-615 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2010)). Cicero appeals that dismissal.*fn1 For the reasons that follow, we affirm.


¶ 3 The issues in this case arise from the Metropolitan Water Reclamation District Act (the Act) (70 ILCS 2605/1 et seq. (West 2010)), which was passed in 1889, as "An Act to create sanitary districts and to remove obstructions in the Des Plaines and Illinois Rivers" (1889 Ill. Laws 126). We find that a review of the undisputed facts and circumstances leading to the passage of this statute is necessary to an understanding of the issues raised in this appeal.*fn2 In the 1800s, one of the challenges facing the City of Chicago (the City) was the development of systems to ensure a safe water supply and the disposal of sewage and waste. The custom at the time was to draw water from Lake Michigan for the City's municipal needs. The water was taken only a short distance from the mouth of the Chicago River, which was the City's main sewer. As the population and industry in the City grew, drainage and sewage were increasingly carried into Lake Michigan, thereby contaminating the waters of the lake. In the mid-1800s, the state constructed the Illinois and Michigan Canal (the Canal), which extended from the Chicago River to Peru, Illinois. For many years, the City made numerous efforts to keep sewage and drainage out of Lake Michigan by pumping it into the Canal so that it would flow into the Illinois River system. However, the problem of sewage and drainage flowing from the Chicago River into Lake Michigan continued as the population of the City grew.

¶ 4 To remedy this problem, the Illinois legislature passed the Act in 1889. The Act created what is now known as the District in order to preserve the public health by improving the facilities for the disposal of sewage and the supply of pure water. Although the Act created various districts of contiguous territory, it was principally concerned with the needs of the City and the creation of the District. To prevent the City's drainage and sewage from being carried into Lake Michigan and to provide a common outlet for the sewage of the incorporated municipalities within the limits of the District, the Act authorized the District to reverse the flow of the Chicago River and to issue bonds to fund the construction of the "Drainage Canal," now known as the Sanitary and Ship Canal (the main channel). The Act also authorized the District to build any adjuncts and additions necessary to connect all of the sewers and drains of the municipalities within the District to the main channel. The main channel was completed in 1899 and ran from the Chicago River to Lockport, Illinois. The main channel connected the Chicago and Calumet River systems to the Des Plaines River, reversing the flow of those rivers away from Lake Michigan and into the Illinois and Mississippi Rivers.

¶ 5 The legislature was aware that construction of the main channel and reversal of the Chicago River would cause a large amount of sewage to flow through the main channel into the Illinois and Des Plaines Rivers. Because of the potential effects that this sewage could have on people living near those rivers, the main channel was also intended to cause a large amount of water to flow from Lake Michigan though the main channel and into the Illinois and Des Plaines Rivers in order to dilute the sewage and render it innocuous. The legislature was also aware that such a large amount of water would cause flooding in the Illinois and Des Plaines River valleys and thereby damage the property of those living near the rivers. To address concerns about health effects and property damage resulting from construction of the main channel, and to gain support for the passage of the Act, the legislature included a provision in the Act that imposed strict liability on the District and required it to pay for all damages to private property that were caused by construction of the main channel. See 70 ILCS 2605/19 (West 2010).

¶ 6 With this background in mind, we now turn to a consideration of the issues raised in this appeal. In 2010, Cicero filed a three-count complaint against the District. Cicero made the following allegations in its complaint.

¶ 7 Under the Act, stormwater management in Cook County is under the exclusive control of the District. The Act authorizes the District to prescribe rules and regulations for floodplain and stormwater management and for governing the location, size and release rate of all stormwater runoff channels, streams and basins in Cook County. The District's service area includes the town of Cicero and approximately 125 other municipalities. To achieve its public purpose in Cicero, the District's structures connect with Cicero's local sewage system in order to receive, treat and dispose of Cicero's sewage. The District has also created the "Tunnel and Reservoir Plan" (TARP) to, among other things, provide an outlet for floodwaters to reduce street and basement sewage backup flooding. TARP is comprised of a system of plants, canals, reservoirs, pumping stations, locks, rivers, tunnels, connecting structures and flow control devices. The District also maintains and controls a system to anticipate heavy rainfall in order to prepare for the safe and expeditious drainage of stormwater and sewage to prevent street and basement flooding.

¶ 8 According to the complaint, on two occasions in June and July 2010, Cook County experienced heavy rainfall that required the District to use its systems and devices to assist Cicero's systems in the disposal of sewage and stormwater. Cicero's sewage system reached capacity and then overflowed into the streets and homes in the area. Shortly after this occurred, the flow of sewage out of the system reversed itself and drained back down into the system.

¶ 9 Cicero alleged that the District failed to use its systems and historical data to adequately anticipate the need to open its devices to receive and treat sewage collected within Cicero. Cicero also alleged that the District failed to use its systems before flooding occurred and sewage began to back up into the streets and homes of Cicero. Cicero alleged that during these occurrences of heavy rainfall, the District opened locks in Wilmette, Illinois, to release sewage from its storage facilities to prevent flooding and sewage backup in the north shore of the Chicagoland area. However, the District did not open the locks in Lockport, Illinois, to prevent flooding in the western and southern suburbs of the Chicagoland area.

¶ 10 Cicero further alleged that during the periods leading up to the heavy rainfall, it unsuccessfully attempted to contact the District for help. Only a general complaint number was available and no help was offered when Cicero's officials reached someone at that number. Aside from this general number, Cicero's officials do not have a means to contact the District in emergency situations to coordinate efforts before flooding occurs.

¶ 11 In count I of its complaint, titled "Action for Accountability," Cicero sought an order compelling the District to communicate and cooperate with Cicero to avoid backup sewage and flooding. Count II sought a permanent injunction ordering the District to anticipate heavy rainfall and to handle excess stormwater before backup sewage flooding occurred. Count III sought monetary damages under section 19 of the Act (70 ILCS 2605/19 (West 2010)), based on the District's alleged failure to accurately predict and manage sewage backup flooding, which resulted in damage to real and personal property during the periods of heavy rainfall mentioned above.

¶ 12 The circuit court granted the District's motion to dismiss the complaint pursuant to section 2-615 of the Code. The court dismissed count I with prejudice, ruling that there was no cause of action for "accountability" and that Cicero therefore failed to state a claim upon which relief could be granted. The court dismissed count II without prejudice, ruling that Cicero had failed to sufficiently allege a clear and ascertainable right in need of protection. Finally, the court dismissed count III with prejudice, ruling that the legislative history of section 19 of the Act demonstrated that it did not apply to the type of claims asserted by Cicero and that count III therefore failed to state a claim on which relief could be granted.

¶ 13 Cicero filed an amended complaint, repleading count II and alleging that, under the Act, its residents had a clear and ascertainable right to the continued use and enjoyment of their property free from interference from backup sewage flooding. Cicero requested that the trial court permanently order the District to properly anticipate heavy rainfall, to implement and activate procedures for handling excess stormwater before backup flooding occurs, and to create a communication system with Cicero so that it could be kept informed of the threat of heavy rainfall and so that the District and Cicero could coordinate efforts to prevent backup flooding. The trial court dismissed this count under section 2-615 of the Code, ruling that the sections of the Act relied upon by Cicero did not provide it with a clear and ascertainable right in need of protection. This appeal followed.


¶ 15 Cicero contends that the trial court erred by dismissing its complaint pursuant to section 2-615 of the Code. "A motion to dismiss pursuant to section 2-615 attacks the legal sufficiency of the complaint. [Citation.] A court reviewing an order granting a section 2-615 motion takes all well-pled facts as true. [Citation.] On review of a section 2-615 dismissal, the court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, sufficiently set forth a cause of action on which relief may be granted. [Citation.]" Uhlich Children's Advantage Network v. National Union Fire Co. of Pittsburgh, PA., 398 Ill. App. 3d 710, 714 (2010).

¶ 16 We review a circuit court's dismissal of a complaint pursuant to section 2-615 de novo. Uhlich Children's Advantage Network, 398 Ill. App. 3d at 714. This appeal also raises questions of statutory interpretation, which are reviewed de novo. Taddeo v. Board of Trustees of the Illinois Municipal Retirement Fund, 216 Ill. 2d 590, 595 (2005).

ΒΆ 17 Cicero first contends that the trial court erred when it dismissed count III of its complaint, which sought monetary ...

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