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The Village of Lombard v. The Department of Transportation

Court of Appeals of Illinois, Second District

November 6, 2013

THE VILLAGE OF LOMBARD, Plaintiff-Appellee,
v.
THE DEPARTMENT OF TRANSPORTATION, Defendant-Appellant The County of Du Page, Defendant-Appellee.

Held [*]

In an action arising from a dispute over who, as between plaintiff village, defendant county or the State of Illinois, had the authority andresponsibility of maintaining a roadway running through the village, the trial court properly entered summary judgment for the village based on the evidence showing that the State had jurisdiction in 1971 and the State’s inability to show any transfer of responsibility to the village or the county since then.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and John P. Schmidt, Assistant Attorney General, ofcounsel), for appellant.

James W. Fessler and J. Allen Wall, both of Klein, Thorpe & Jenkins, Ltd., of Chicago, for appellee Village of Lombard.

Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman, Assistant State’s Attorney, of counsel), for appellee County of Du Page.

Panel JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice McLaren concurred in the judgment and opinion.

OPINION

SCHOSTOK JUSTICE

¶ 1 This case involves a dispute among the parties over which of them has jurisdiction (i.e., authority and responsibility) over that portion of Highland Avenue in Lombard running from Roosevelt Road south to 20th Street (the Subject Road). The plaintiff, the Village of Lombard (Village), sued the Illinois Department of Transportation (State or IDOT) and the County of Du Page (County), seeking a declaratory judgment that one of those bodies (and not the Village) had jurisdiction over the Subject Road. The trial court granted summary judgment in favor of the Village and the County, ruling that the evidence showed that the State had jurisdiction over the Subject Road and that there were no questions of material fact. The State appeals, and we affirm.

¶ 2 BACKGROUND

¶ 3 In 2009, the Village wrote to the County's director of transportation, asserting that the Subject Road was under the jurisdiction of the County and requesting that the County perform needed improvements. The County denied that it had jurisdiction over the Subject Road and suggested that the Village contact the State. The State likewise denied that it had jurisdiction over the Subject Road, contending that the Village had jurisdiction.

¶ 4 In 2010, the Village filed suit in the circuit court of Du Page County against the County and the State. The complaint contained three counts: count I sought a declaratory judgment that either the State or the County had jurisdiction and was responsible for reconstruction; count II sought an injunction directing the State to pay for reconstruction; and count III alternatively sought an injunction directing the County to pay for reconstruction. Count II was dismissed on the basis of sovereign immunity and is not at issue in this appeal.

¶ 5 In August 2011, both the Village and the County filed motions for summary judgment, asserting that the State had jurisdiction over the Subject Road. Evidence of the following facts was presented in the summary judgment proceedings, and these facts are undisputed except as noted.

¶ 6 Highland Avenue, extending 1.894 miles between Roosevelt Road and Butterfield Road in Lombard, was constructed of portland cement during the 1930s. The thoroughfare was known as State Aid Route 9, and all parties agree that the State had jurisdiction over it at that time.

¶ 7 In 1968, for reasons that do not appear in the record, the State and the Village agreed that jurisdiction over the southern half of Highland Avenue, running from 20th Street south to Butterfield Road, would be transferred to the Village. On April 15, 1968, the Village passed an ordinance approving the transfer. The ordinance was signed by the Village president and the director of the Illinois Department of Public Works and Buildings (the predecessor of IDOT). The ordinance did not mention the Subject Road (the northern half of Highland Avenue).

¶ 8 In September 1968, the County issued a contract for the reconstruction and widening of the Subject Road as a portland cement road. The construction was under the supervision and approval of the Illinois Department of Public Works and Buildings. At that time, section 5-404 of the Highway Code (Ill. Rev. Stat. 1967, ch. 121, ¶ 5-404) provided that, upon the State's approval and acceptance of previously authorized construction work on any county highway built of portland cement, the highway would "become part of the State highway system and such ...


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