The lllinois Supreme Court has thrown cold water on a
lawsuit brought by a group of northwest suburban Cook County homeowners who
claimed the state’s largest stormwater management agency unconstitutionally violated
their property rights when the agency, taking action to prevent flooding
elsewhere during a heavy rainfall six years ago, diverted water into creeks
near the plaintiffs’ homes, flooding their neighborhoods in the process.
On July 8, the state’s high court tossed the rulings of a
Cook County judge and state appellate justices, who had found the residents
should be allowed to press their case against the Metropolitan Water
Reclamation District of Greater Chicago, as the judges said the temporary flooding
caused by the water district’s actions could be considered an improper taking
of the residents’ property under the Illinois constitution’s private property
Specifically, the lower courts had determined a 2012 U.S.
Supreme Court ruling should supersede an Illinois Supreme Court precedent which
other state courts had previously held established a rule stating temporary
flooding caused by government action can never be considered a violation of the
state constitution’s private property protections.
On review, the Illinois Supreme Court said courts which had
interpreted its prior decision in such a stringent way had erred. But, the
state high court justices said, just as it did not mean to establish a bright
line ruling out such cases, neither does the U.S. Supreme Court decision mean
anyone whose property has flooded because of a government agency’s action
necessarily should be allowed clear sailing to sue governmental bodies, like
the Metropolitan Water Reclamation District, under the takings clause.
The case first landed in court in 2011, when a group of more
than 30 homeowners from the suburban communities of Bellwood, Hillside and
Westchester sued the water district in Cook County Circuit Court. The homeowners had asserted the water district
had, during a heavy rain storm in late July 2010, diverted water away from O’Hare
International Airport and other sections of Chicago and the surrounding area,
causing the flood waters to pour over the banks of the Salt and Addison creeks
and the Lower Des Plaines River. This resulted in significant damage to their
homes, the plaintiffs said.
The District asked the court to dismiss the lawsuit. But
Cook County Judge Neil Cohen rejected the District’s contention Illinois case
law, and specifically the Illinois Supreme Court’s 1948 ruling in Pratt v.
Rosenfeld, held such temporary flooding could not be considered an improper
taking of private property.
The District appealed, and a three-justice panel of the
Illinois First District Appellate Court upheld Cohen’s reasoning, citing the
U.S. Supreme Court’s 2012 ruling in Arkansas Game & Fish Commission vs U.S.
In that case, the nation’s high court had held temporary flooding caused by a
government decision could be considered a taking and deserving of compensation,
depending on the facts.
The appellate panel said the Arkansas decision superseded
the state decision in Pratt.
However, the District again appealed, this time to the state
Supreme Court, and justices there said the lower courts had misapplied both the
legal rationale in Pratt and the relationship of the U.S. Supreme Court’s
findings in the Arkansas case to the Pratt decision.
In the opinion authored by Chief Justice Rita B. Garman, the
court’s majority said the state and federal decisions on the question do not
“The holding in Arkansas Game & Fish Comm’n does not
conflict with the holding in Pratt to any extent, because the court in Pratt
did not hold that temporary flooding can never constitute a taking,” Garman
wrote. “The court in Pratt merely held that the flooding that occurred in that
case did not rise to the level of a taking.”
Rather than issuing any sort of blanket rule on the
question, Garman said the precedent meant courts should evaluate such flooding
cases on an individual basis.
And the facts of this case, she said, do not hold up when
analyzed in light of the state constitution, as Garman said the homeowners have
not yet demonstrated the one-time flooding event “’radically interfered’ with
plaintiffs’ use and enjoyment of their properties.”
Garman was joined in her opinion by justices Robert R.
Thomas, Lloyd A. Karmeier and Mary Jane Theis.
The court’s other three justices, led by Anne M. Burke,
concurred in the decision. But in a special concurring opinion, they said they
believed the Pratt and Arkansas cases “cannot be reconciled,” and the court’s
majority should have “explicitly overruled Pratt,” allowing the determinations
of the U.S. Supreme Court’s Arkansas decision to be incorporated into Illinois
law to solely determine whether such flooding events could be considered
In the special concurrence, Burke, backed by justices
Charles E. Freeman and Thomas L. Kilbride, said the plaintiffs should be
allowed to try again in Cook County court, this time to address the factors
required under the Arkansas decision.
The case was remanded to the Cook County Circuit Court for
Plaintiffs had been represented in the case by attorneys
with the firm of Glen J. Dunn & Associates, of Chicago. The District was
represented by its staff attorneys.