A Chicago federal judge has dampened a lawsuit by a group homeowners, who claimed their village should pay for allowing their homes to be built in a flood-prone area, leading to repeated flooding in their homes.
The judge said citizens cannot sue municipalities on grounds the municipalities allegedly did not follow federal flood protection laws.
The June 7 ruling was issued by U.S. District Judge Mary Rowland. The decision went against 12 homeowners who filed suit in May 2020 against the Village of Channahon and a number of its trustees and officials. Channahon straddles the county line between Will and Grundy counties, southwest of Chicago.
The suit alleged the village violated the residents' rights under the National Flood Insurance Act, the Flood Disaster Protection Act and the private property Takings Clause of the U.S. Constitution's Fifth Amendment.
In 1992, the village passed an ordinance directing pertinent village officials, principally Building and Zoning Officer Thomas Pahnke, to ensure federal flood regulations were heeded during construction of homes in the then-developing Indian Trails North subdivision. The first basements flooded in 1996, and have done so several other times through 2020, according to plaintiffs. Pahnke died in August 2020 and his estate administrator has substituted for him as a defendant.
In their suit, residents said the floods occurred because basements were too deep, the soil was too porous and water flow was impeded at the Channahon Dam, which is on the Illinois River. Specifically, residents alleged village officials failed to require hydrological analysis, special inspections and other precautionary steps be taken before the houses were erected.
Channahon lodged a motion to dismiss the suit, which Judge Rowland granted.
Rowland threw out most of the federal claims on the basis the National Flood Insurance Act and Flood Disaster Protection Act do not allow for private suits.
"Congress intended to protect a special class of plaintiffs that includes the Plaintiffs, but [there is] no evidence that this protection would take the form of a private cause of action. "[The] legislative history contains no language to suggest that Congress intended to create a private right of action for homeowners against municipal governments based on flooding," Rowland concluded.
Rowland added, "Plaintiffs cite to no cases in which a court has found that the FDPA or the NFIA impliedly created a private cause of action. More importantly, they can point to no part of these statutes or their legislative histories supporting the existence of such a right."
As far as the claim the village breached the Fifth Amendment by taking away the residents' full use of their homes, Rowland found the residents pointed to an unpersuasive 2012 U.S. Supreme Court decision to back their argument.
In that case, Arkansas Game & Fish Commission v. United States, Rowland said the high court ruled flooding must be "government-induced" in order to sustain a flood suit based on the Fifth Amendment. However, the Channahon residents have not presented evidence the village caused the high waters, Rowland said.
Rowland told the residents they may amend their suit, in line with her findings, by July 6, or the case will be closed.
The residents have been represented by Steven Fuoco, of Fuoco Law Group, of Highland Park.
Channahon has been defended by James A. Murphy and Marron Ann Mahoney, of Mahoney, Silverman & Cross, of Joliet.