The Illinois Supreme Court has agreed to take up the question of whether U.S. Supreme Court precedent or that of the state’s highest court should hold serve when deciding whether a decision by a local water control agency to release flood waters and damage private homes in the process constitutes an illegal taking of property.

On Nov. 25, the Illinois Supreme Court granted leave to the Metropolitan Water Reclamation District of Greater Chicago to appeal the Illinois First District Appellate Court’s opinion that a group of homeowners in Chicago’s northwest suburbs should be allowed to continue with their legal action against the water reclamation district for not compensating them for damage caused to their homes by floodwaters, which they alleged were exacerbated by the water district’s actions during a heavy rainfall in July 2010.

The homeowners had argued a decision by the water district to release floodwaters into the Addison and Salt creeks – while carried out in a purported effort to forestall flooding in other parts of the Chicago area – caused private property to be “taken and damaged … for public use without just compensation, violating the Illinois Constitution.” Specifically, the homeowners said the water district’s floodwater release caused the creeks to rise, to back up sewers and then to damage and destroy homes, basements and other personal property.

In court, the Metropolitan Water Reclamation District had relied upon the Illinois Supreme Court’s findings in the 1948 case Pratt vs Rosenfield to argue the homeowners had no legal basis to contend the district’s actions could be construed as an illegal taking.

That reasoning, however, was rejected by Cook County Judge Neil H. Cohen, who pointed to a 2012 U.S. Supreme Court ruling in Arkansas Game & Fish Commission vs U.S., which he said overrides the Pratt decision.

On Aug. 14, the First District Appellate Court backed Cohen’s findings, declaring cases of alleged illegal taking brought on by property damage caused by flooding in which a public body’s actions played a role cannot rely upon “blanket temporary-flooding exception,” but must rather be assessed individually based on several factors, including the foreseeable results of the government action.

The case is Hampton et. al., etc. vs Metropolitan Water Reclamation District of Greater Chicago, No. 119861 (First District.)

The state high court also agreed to hear arguments to settle the question of whether a Moline aviation service can claim a special tax break designed by lawmakers to prevent the company from taking flight across the Mississippi River to Iowa.

The Illinois Third District Appellate Court in Ottawa had ruled in July that the tax break for Elliott Aviation was prohibited by state law. The Moline School District 40 had challenged the 2013 state law, signed by former Gov. Pat Quinn, declaring “fixed base operators” like Elliott, operating on land owned by the Metropolitan Airport Authority of Rock Island would be exempted from paying property taxes. The school district said it stood to lose $150,000 per year in tax revenue because of the law.

Elliott Aviation had appealed to the state Supreme Court.

The case is Moline School District No. 40 Board of Education vs. Hon. Pat Quinn, etc., et al., No. 119704 (Third District.)

The Illinois Supreme Court also granted leave to appeal in four more cases, including:

People State of Illinois vs. Cara M. Ringland et al., No. 119484 (Third District)

Ronald Bayer vs. Panduit Corporation et al., No. 119553 (First District)

People State of Illinois v. Eugene Wright, No. 119561 (First District)

People State of Illinois v. Josue Valdez, No. 119860 (Third District.)

In its Nov. 25 order, the court denied leave to appeal to 198 other cases, including 76 civil appeals.

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