Temporary flooding caused by government action can be illegal taking of property, appellate panel rules

By Dan Churney | Aug 24, 2015

A state appellate panel has ruled the U.S. Supreme Court’s opinion, and not that of the state’s highest court, should hold sway in a case in which a group of Chicago area homeowners have argued a decision by the Metropolitan Water Reclamation District of Greater Chicago to release flood waters, resulting in backed-up sewers, flooded creeks and extensive damages to surrounding homes, constitutes an illegal taking of their property under the Illinois Constitution.

The Aug. 14 ruling from the Illinois First District Appellate Court in Chicago backed a Cook County judge’s finding the U.S. Supreme Court supersedes the Illinois Supreme Court when it comes to determining whether a temporary flooding of property can violate the Illinois Constitution.

More than 30 northwest suburban residents filed two chancery class action suits in July 2011 in Cook County Circuit Court against the Reclamation District. The suits were later consolidated into one case. Plaintiffs claimed that during heavy rainfall July 23-24, 2010, the District, which maintains operations on regional waterways, sought to prevent flooding in parts of the Chicago area, but in the process caused flooding to plaintiffs’ property.

Specifically, plaintiffs maintained the District’s actions caused sewers to back up and the Addison and Salt Creeks to overflow, damaging or destroying homes, basements and other personal property. According to plaintiffs, the District did not compensate plaintiffs for the “deprivation or damage” to their homes.

The first count of the suit sought damages under the Metropolitan Water Reclamation District Act and the second count alleged plaintiffs’ property was “taken and damaged by the defendant for public use without just compensation, violating the Illinois Constitution.”

The District filed a motion to dismiss both counts. Judge Neil H. Cohen granted the motion to dismiss the first count, but denied the second count, rejecting the District’s contention the temporary flooding of plaintiffs’ property was not a “taking” under the Illinois Constitution, as held by the Supreme Court of Illinois in its decision in the case of People ex. rel. Pratt v. Rosenfield in 1948.

Rather, Cohen pointed to the U.S. Supreme Court’s 2012 ruling in Arkansas Game & Fish Commission v. U.S. as overriding the Pratt decision. In the Arkansas case, the U.S. Supreme Court said temporary flooding could be considered a taking and deserving of compensation, depending on the facts.

In summer 2013, the Reclamation District asked the First District Appellate Court to give its opinion as to whether the federal Arkansas decision overrules the state Pratt decision, while not weighing in on the merits of the case.

The appellate justices, noted the U.S. Supreme Court concluded the temporary duration of a government-induced flood did not affect compensation and there is no “blanket temporary-flooding exception,” as maintained in Pratt.

“Like other taking cases, flooding cases should be assessed on their facts and not by resorting to blanket exclusionary rules,” the state appellate justices said.

According to the Appellate Court, the U.S. Supreme Court laid out in the Arkansas case the following factors for determining if a taking deserves compensation: the duration, the foreseeable result of the government action, the character of the land and the owner’s reasonable economic expectations for the property.

The Appellate Court pointed out that a single instance of flooding, as in the Metropolitan Water Reclamation District case, may not constitute a taking. However, the Appellate Court found Pratt’s position - that a temporary flooding can never be a taking worthy of compensation - is superseded by the ruling in the Arkansas case.

Justice Robert E. Gordon authored the opinion, with justices Stuart E. Palmer and Jesse Reyes concurring.

Plaintiffs are represented by Glen J. Dunn & Associates, of Chicago. The District is defended by in-house attorneys.

A status hearing on the case is slated for Oct. 20.

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