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Commonwealth Edison Co. v. Elston Avenue Properties, LLC

Court of Appeals of Illinois, First District, First Division

March 31, 2017

COMMONWEALTH EDISON CO., Plaintiff-Appellee,
ELSTON AVENUE PROPERTIES, LLC, DEVELOPMENTAL RESOURCES, INC., MARIA PAPPAS, Treasurer and County Collector of Cook County, DAVID ORR, County Clerk of Cook County, and UNKNOWN OWNERS, Defendants-Appellants.

         Appeal from the Circuit Court of Cook County. No. 06 L 50404 Honorable Alexander P. White Judge Presiding.

          JUSTICE SIMON delivered the judgment of the court, with opinion. Justices Harris and Mikva concurred in the judgment and opinion.



         ¶ 1 This appeal follows drawn-out negotiations and proceedings precipitated by eminent domain. Commonwealth Edison needed to dig on private property to run underground wires. The parties reached an agreement on compensation and on the specifications for digging and restoring the property. ComEd did not specifically follow the agreed-upon specifications for refilling the dig sites, resulting in nonconforming work. Nonetheless, ComEd asked the court to approve its performance and rule that its obligations had been satisfied. After the parties presented evidence, the trial court issued an order of satisfaction from which the property owner now appeals. We affirm.

         ¶ 2 BACKGROUND

         ¶ 3 Plaintiff Commonwealth Edison filed an eminent domain suit to take underground easements on property owned by defendant Elston Avenue Properties, LLC ("Elston Properties"). The purpose of the taking was to construct deep vaults beneath the surface of the property in order to ultimately carry electric transmission lines under the Chicago River. The easements were part of plans for the "West Loop Project" designed to reinforce the electrical capacity provided to the Chicago Central Business District. After the case was filed and after Elston Properties filed a traverse, [1] the parties negotiated the easements and entered an agreed judgment. The agreed judgment, as amended (referred to as the "Final Order"), stipulated the compensation to be paid for the easements and the specifications for construction. Judgment was entered on the Final Order terminating the eminent domain proceedings.

         ¶ 4 Construction began and ComEd excavated four shafts over 57 feet deep. The shafts were approximately 14 feet wide and 35 feet long. They were reinforced with steel bracing. ComEd then tunneled from the shafts under the river and ran the transmission lines through conduits to their destination. The shafts were then backfilled and the surface was restored. However-and this is the genesis of the dispute-ComEd deviated from the agreed specifications and filled a portion of the vaults with sand where the Final Order called for concrete.

         ¶ 5 Following construction, ComEd tendered "as-built plans" to Elston Properties. ComEd then filed a motion in the trial court for an order of satisfaction. That motion stated that all compensation had been paid and that all work had been completed and, therefore, that ComEd was seeking a determination that its obligations under the Final Order were satisfied.

         ¶ 6 Elston Properties noticed a deviation between the as-built plans and the specifications set forth in the Final Order and alerted ComEd. The as-built plans indicated (as was actually the case) that sand had been used instead of concrete in some areas. After being notified of the deviation, ComEd prepared "revised" as-built plans that depicted concrete in much of the area where it was supposed to be according to the Final Order, but where the original as-built plans indicated (again, as was actually the case) that sand had been used. During the eight months between Elston Properties notifying ComEd about the deviation and ComEd tendering the revised plans, Elston Properties had performed its own testing on the composition of the vaults. The testing demonstrated that the originally-tendered as-built plans actually reflected the true method of construction-that sand had been used in areas where concrete was called for. Elston Properties therefore believed that ComEd was attempting to deceive it with the revised as-built plans.

         ¶ 7 There are two components of the construction that are important to distinguish-the duct banks and the shafts themselves. The duct banks consist of the conduits that run horizontally underground and the shafts are the vertical cavities descending from ground level to reach the conduits. The specifications originally stated that the ducts were to be encased with 3000 psi concrete and then, using stair-stepping, 1500 psi concrete was to be placed on top to fill the shaft excavation. However, after construction began, the parties agreed to modify that backfilling specification. Because the stair-stepping required for placing the 1500 psi concrete over the 3000 psi concrete was time-consuming and expensive, the parties agreed to just use 3000 psi concrete throughout.[2] During the course of construction, however, ComEd gave the instruction to the contractor to perform the duct backfilling with lifts of 3000 psi concrete "and then backfill with compacted thermal sand." The parties had agreed to modify the original agreement so that some sand could be used as backfill in the duct banks, but they never agreed to such a modification for backfilling the vaults in the manner it was done. There is no genuine dispute that the backfilling was not done in accordance with the Final Order.

         ¶ 8 The specifications for construction set forth in the parties' Statement of Conditions and Restrictions and incorporated into the Final Order are intended "to assure ability of the Owner to build over the ComEd facilities." To that end, the Final Order states that:

"Upon completion of the installation of the Project Facilities in the Permanent Subterranean Easement Areas, the Owner shall have the right to construct improvements, including buildings, or grant easements above, or between, or beyond the Project Facilities, provided only that the concrete encasement around the Project Facilities (the 1500 psi lean concrete at the vault excavations and the 100 psi flowable fill concrete at the duct bank excavations) will not be penetrated by the foundations. The Owner may install deep foundations (bearing elevation below -9.00 CCD) having a maximum bearing pressure of up to 20, 000 pounds per square foot anywhere within the Permanent Subterranean Easement Area. Deep foundations located directly above the 6' diameter reinforced concrete pipe casing shall be designed so that they do not exceed the load carrying capability of the pipe. Shallow foundations (bearing elevation above -9.00 CCD) located directly above Project Facilities cannot exceed a net bearing pressure of 4, 000 pounds per square foot. ***"

         The parties dispute the interpretation of that paragraph as to what type of foundations are allowed in what locations.

         ¶ 9 ComEd's position is that the parties' understanding was always that the easement construction would allow Elston Properties to construct low-rise construction with shallow foundations on top of the vaults. In contrast, Elston Properties' position is that the agreement was premised on the expectation that it would be able to build just about anything on the property that it could have built before the easement construction. The parties dispute whether the ...

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