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 takings clause.

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 conflict.

“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 improper takings.

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 further proceedings.

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.  

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