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Salvi v. Village of Lake Zurich

Court of Appeals of Illinois, Second District

October 31, 2016

MARITA WILLIAMS SALVI, as Successor Trustee of the Albert S. Salvi Family Trust, Plaintiff-Appellant,
THE VILLAGE OF LAKE ZURICH, and THE ELA AREA PUBLIC LIBRARY DISTRICT, Defendants The Village of Lake Zurich, Defendant-Appellee The Chapel, Inc.; Good Shepherd Bible Church, Inc.; Alpine Business Partnership, LLC; Barrington Christopher Club; and Zurich Meadows Apartments, LLC, Respondents in Discovery.

         Appeal from the Circuit Court of Lake County. No. 13-L-750 Honorable Christopher C. Starck, Judge, Presiding.

          McLAREN JUSTICE delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.



         ¶ 1 Plaintiff, Marita Williams Salvi, as successor trustee of the Albert S. Salvi Family Trust (Trust), appeals the dismissal of her claims against defendant the Village of Lake Zurich (Village). Plaintiff's amended complaint alleged that the Village's renovation of a detention pond (Pond) near an office building (Building) on property (Property) owned by plaintiff caused the Pond to overflow during a heavy rain, flooding the bottom floor of the Building. The trial court dismissed the claims as barred by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2014)). For the reasons that follow, we affirm in part, reverse in part, and remand the cause for further proceedings.

         ¶ 2 I. BACKGROUND

         ¶ 3 Plaintiff filed her amended complaint in January 2014, naming as defendants the Village and the ELA Area Public Library District (Library). She also named several respondents in discovery. The Library and the respondents were dismissed pursuant to a settlement before plaintiff filed her notice of appeal.

         ¶ 4 The general allegations in the complaint are as follows. Plaintiff was the current trustee of the Trust and the current owner of the Property, which was in the Village and improved with the Building. The Property and the Building were held by the Trust. Prior to 1989, the Federal Deposit Insurance Corporation (FDIC) owned the Property as well as a contiguous parcel, later known as the Good Shepherd Subdivision (Subdivision). In 1989, Albert S. Salvi, plaintiff's predecessor in interest, purchased the Property from the FDIC and placed it with the Trust. The Pond was situated in the Subdivision. The Property "extend[ed] in part onto the slopes of the Pond." At the time of the purchase, "the Pond had no history of overflowing." Sometime after 1989, Good Shepherd Church (Church) purchased the Subdivision from the FDIC. The Subdivision was later divided into four parcels. One parcel was purchased by the Library (Library Parcel) and another parcel by the Village (Village Parcel). The remaining two parcels were retained by the Church. On one of these parcels (Church Parcel), the Church constructed a church building. On the remaining parcel was the Pond (Pond Parcel). All four parcels were located north and west of the Property. The only parcel contiguous to the Property was the Pond Parcel.

         ¶ 5 In the summer of 2000, the Church, the Village, and the Library signed an "Easement Agreement" (Agreement), a copy of which was attached to the complaint. The Agreement characterized the Pond as a "storm water detention basin *** serving the storm water management requirements of the Library Parcel, the Village Parcel, the Church Parcel, and the Pond Parcel ***." The stated purpose of the Agreement was to "permanently protect the establishment, use, and maintenance of the [Pond] for its intended purposes." To this end, the Church granted two types of easements over the Pond Parcel. First, to both the Village and the Library, the Church granted "a perpetual, nonexclusive easement over, across, under, upon, along, and through *** [the Pond Parcel] *** for the purpose of discharging storm water into the [Pond]." In connection with the discharge easement, the Village was granted "a perpetual, nonexclusive easement over, across, under, upon, along, and through *** [the Pond Parcel] *** for the purpose of maintaining, repairing and replacing the storm water laterals, culverts, drains, and associated laterals, lines, and devices ***, such work to be at the Village's cost." Second, the Agreement granted the Village "a perpetual, nonexclusive easement over, across, under, upon, along, and through *** [the Pond Parcel] *** for the purpose of rehabilitation and maintenance of [the Pond] ***."

         ¶ 6 Plaintiff alleged that subsequent improvements to the Village and Library Parcels and renovation of the Pond contravened requirements set forth in the Agreement and in Lake County's Watershed Development Ordinance (Watershed Ordinance) (Lake County Watershed Development Ordinance (amended Aug. 14, 2001)). According to plaintiff, the violations led ultimately to the overflow of the Pond and the flooding of the Building.

         ¶ 7 We note that, in various places, the complaint describes the Agreement as granting the Village "the perpetual right to possess, manage and control the Pond Parcel." Plaintiff also alleged that the Village "acquired *** the Pond Parcel, " and she characterized the Pond as "the Village's Pond." Though the Village did not file an answer below (having filed a motion to dismiss in lieu of an answer), it challenges on appeal the accuracy of the complaint's description of the Village's interest in the Pond and the Pond Parcel.

         ¶ 8 The Agreement contains the following provision relating to the Pond's capacity:

"Section 3. Capacity of Detention Pond. [The Pond] was designed and constructed to accommodate maximum storm water flows (the 'Pond Capacity') from the Library Parcel, the Village Parcel, the Church Parcel, and the Pond Parcel, with a maximum of 60 percent impervious surface coverage (the 'Maximum Coverage') per parcel. [The parties] agree that they shall take no action that inhibits, impairs, or interrupts the function of [the Pond] or results in discharge in excess of the Maximum Coverage. In protecting the function of [the Pond], the Village shall not approve or permit additional or increased storm water discharge into [the Pond] by or for the benefit of any user not a party to this Agreement beyond use which currently exists."

         The Agreement notes that the Village had approved plans for the construction of a library facility on the Library Parcel and a police station on the Village Parcel. In this connection, the Agreement specifies that "[n]o development of the Village Parcel, the Church Parcel, the Pond Parcel, or the Library Parcel shall be permitted in excess of the Maximum Coverage except only if the Church, the Library, the Village, or other developer of such parcel, as the case may be, shall provide for an increase in the Pond Capacity at such developer's cost and in a manner and amount satisfactory to the Village Engineer, whose approval shall not be unreasonably withheld."

         ¶ 9 The Agreement not only grants the Village an easement for rehabilitation and maintenance of the Pond, but requires the Village to perform that work when necessary and provides for the sharing of costs associated with the work. The Agreement notes that the Village had submitted to the Church and the Library "a preliminary analysis and estimate of the work related to the rehabilitation and future maintenance of [the Pond]." An attachment to the Agreement sets forth the proposed work, which includes excavation and reshaping of the Pond's slopes.

         ¶ 10 The Watershed Ordinance was enacted in October 1992 and has since been amended several times. Plaintiff's complaint makes extensive reference to the Watershed Ordinance. The complaint contains two significant block quotations from the Watershed Ordinance. The first is from the "purpose" section of the ordinance (Lake County Watershed Development Ordinance, art. IB. (amended Aug. 14, 2001)). Several specific purposes are listed, including the objectives of preventing flooding and drainage hazards, specifically those stemming from "development, " and protecting buildings and improvements from flood damage "to the greatest extent possible." Lake County Watershed Development Ordinance, art. IB.6. (amended Aug. 14, 2001). The complaint also quotes a section stating that "[n]o person, firm, corporation or governmental agency" may commence certain developments without obtaining "a Watershed Development Permit from the Stormwater Management Commission or, if applicable, the Certified Community." Lake County Watershed Development Ordinance, art. IVA.1. (amended Aug. 14, 2001). The Watershed Ordinance grants certified communities the power to enforce its requirements. Lake County Watershed Development Ordinance, art. III (amended Aug. 14, 2001). At all times relevant here, the Village was a certified community.

         ¶ 11 Following the complaint's quotations from the Watershed Ordinance is a three-page enumerated list of mandates from the Watershed Ordinance. Plaintiff alluded to, inter alia, (1) platting and reporting requirements relating to runoff and base flood elevation (BFE); (2) design dictates for stormwater detention facilities; and (3) limits on detention release rates. After each requirement is a specific citation to a provision of the Watershed Ordinance.

         ¶ 12 The general allegations of the complaint proceed to state that, in addition to "having the legal duty to comply with" the Watershed Ordinance, the Village and the Library "had a common law duty to refrain from collecting water and discharging it onto [the Property]."

         ¶ 13 The general allegations go on to describe: (1) the development of the various parcels; (2) the work that the Village performed on the Pond; and (3) the flood that resulted from those activities. The allegations state as follows. In 2002, the Village commenced work on the Pond. The Village knew of its obligations under the Watershed Ordinance but "utterly disregarded the law" in "reconstructing and thereafter maintaining the Pond so that the Pond, upon overflowing, would spill onto" the Property. Subsequent to the Village's work on the Pond, the Village constructed a police station on the Village Parcel and the Library constructed a library facility on the Library Parcel. Both entities made their improvements without "obtain[ing] the necessary permits under [the Watershed Ordinance], " and the Village also "disregarded its own ordinance and [the Agreement] by building a police department with impervious surface coverage in excess of 60%." (As to the Village's alleged violation of "its own ordinance, " plaintiff provided more detail in count III against the Village.) Plaintiff alleged that, "[a]s the Village allowed additional private development of [the Subdivision] without compliance with [the Watershed Ordinance] and [the Agreement], the threat of flooding [the Building] grew." In April 2013, "after heavy rains, the shoreline of the Pond crept perilously close to [the Property]." Though the Village placed sandbags "along or near the property line of the Village-controlled Pond and [the Property], " the Pond overflowed on June 26, 2013, spilling water into the lower floor of the Building.

         ¶ 14 Plaintiff's complaint contains eight counts. Counts I, II, III, VI, and VII named the Village. Count I alleged "willful and wanton trespass, " count II alleged "negligent trespass *** breach of duties imposed by [the Watershed Ordinance], " and count III alleged "negligent trespass *** breach of common law duties." Counts I through III, like the remaining counts, incorporated all of the general allegations, including the allegation that the development of the Library Parcel contravened the Agreement and the Watershed Ordinance. The allegations specific to counts I through III, however, focused on the Village's rehabilitation of the Pond and the Village's later development of the Village Parcel. Both counts I and II alleged that the rehabilitation and development violated the Agreement and the Watershed Ordinance, but count I alleged that the violations were willful and wanton, while count II alleged that the violations were merely negligent. With specific citations to the Watershed Ordinance, counts I and II alleged the following ways in which the Village departed from the Watershed Ordinance in rehabilitating the Pond:

"(a) Failed to calculate, or properly calculate, the Base Flood Elevation (BFE) and failed to calculate BFE based on offsite tributary area ***.
(b) Failed to prepare plats and plans which depict, or accurately depict, the location of the Pond and the BFE and/or the Pond and the BFE in relation to [the
Property] ***.
(c) Failed to prepare run-off calculations based on intense rainfalls ***.
(d) Failed to calculate volume of detention storage in addition to existing storage ***.
(e) Failed to make proper determination of release rates and to calculate the release rates for the Pond based on offsite drainage area and the available capacity of the 30[-]inch outlet ***.
(f) Failed to plan, design and construct a safe overland flow route in case of emergency overflow so as to avoid damage to structures including [the Building] ***.
(g) Failed to plan, design and construct the Pond taking into account the area of offsite tributary ***.
(h) Failed to obtain [a] dam safety permit ***.
(i) Failed to plan, design and construct the Pond so that all structures in parcels containing or adjoining to an overland flow path have a lowest adjacent grade a minimum of one foot above the design high water elevation ***.
(j) Failed to prepare as[-]built designs that would reveal violations of [the Watershed Ordinance] ***.
(k) Constructed the Pond-a stormwater detention facility-within a regulatory flood plain and constructed the Pond without determinations of BFE and added a restricted outlet (without redesign of [the] Pond to a safe BFE) and with a high water elevation that extended onto the [Property] making the [Property] a de facto spillway for the Pond ***.
(1) Failed to inspect its own property (the Pond and the Village Parcel) or made an inspection not adequate to ascertain its condition as violative of [the] law."

         ¶ 15 Counts I and II alleged that the Village "was able to avoid having its illegal conduct detected by law enforcement authorities, including the Lake County Storm Water Management Commission (SMC), by failing to inform SMC or state authorities of its acquisition of the Pond Parcel, its illegal 'rehabilitation' of the Pond, and its later maintenance and repair to the Pond from 2003 through 2013." Plaintiff further alleged that the police station subsequently constructed on the Village Parcel "had an impervious surface area greater than 60%." According to plaintiff, "[t]his development created additional discharge of stormwater flowing into the Pond, making it more likely that [the Property] would become the Pond's spillway." Further, "despite the fact that the Village['s] development of the surrounding lands made the illegal rehabilitation even more dangerous with the addition of developments that did not comply with legal requirements, the Village never warned [p]laintiff that her property had been made a spillway to accommodate its development." The Village "failed to inspect its Pond, or failed to adequately inspect for the aforesaid violations[, ] and the Village never prepared plans compliant with [the Watershed Ordinance], thus making the illegal 'rehabilitation' more and more perilous to [the Property]."

         ¶ 16 Both counts I and II further alleged that, as a direct and proximate result of the Village's "acts and omissions *** and concealment [of them], " the Pond "received waters from a heavy rain, rose to such a level it would ...

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