2014 IL App (2d) 130813
No. 2-13-0813
Opinion filed December 11, 2014
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
ROCK RIVER WATER RECLAMATION ) Appeal from the Circuit Court
DISTRICT, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 12-ED-2
)
THE SANCTUARY CONDOMINIUMS OF )
ROCK CUT, )
)
Defendants-Appellants ) Honorable
) J. Edward Prochaska,
(Unknown Owners, Defendants). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court, with opinion.
Presiding Justice Schostok and Justice Zenoff concurred in the judgment and opinion.
OPINION
¶1 The instant dispute concerns a proposal by plaintiff, Rock River Water Reclamation
District, to build a sanitary sewer extension (Oak Crest project) to a residential development
known as the Oak Crest subdivision. In October 2010, plaintiff adopted an ordinance providing
for construction of the Oak Crest project. Connecting the Oak Crest project to the existing
sanitary sewer system would require installation of a “trunk line” running beneath property
belonging to defendant The Sanctuary Condominiums of Rock Cut. As a result, plaintiff sought
to obtain from defendant both a permanent easement and a temporary construction easement. In
2014 IL App (2d) 130813
April 2011, after discussions to acquire the easements broke down, plaintiff filed in the circuit
court of Winnebago County a complaint for condemnation. On defendant’s motion, the trial
court dismissed plaintiff’s complaint on the bases that the ordinance authorizing construction of
the Oak Crest project failed to state that a taking of defendant’s property was necessary and
failed to describe with reasonable certainty the property sought to be taken.
¶2 Thereafter, plaintiff enacted another ordinance in an effort to cure the deficiencies
identified by the trial court. Plaintiff then offered defendant $2,700 for the easements, double
their appraised value. Defendant rejected plaintiff’s offer, and, in January 2012, plaintiff
initiated a new condemnation action. Defendant unsuccessfully moved to dismiss the second
condemnation action on the grounds of res judicata and improper notice. Defendant then filed a
traverse and motion to dismiss, which the trial court denied following a bench trial. The court
subsequently determined that $1,350 was just compensation for the easements. Defendant then
filed a notice of appeal. On appeal, defendant raises three principal issues. First, defendant
contends that the trial court erred in denying its motion to dismiss plaintiff’s second
condemnation action on the ground of res judicata. Second, defendant challenges the trial court
order denying its traverse and motion to dismiss. Third, defendant argues that the trial court
erred in refusing to compensate it for any damage that installation of the proposed trunk line
would cause to its property. For the reasons set forth below, we affirm the judgment of the
circuit court.
¶3 I. BACKGROUND
¶4 Plaintiff is an Illinois unit of local government that is organized under the Sanitary
District Act of 1917 (Sanitary Act) (70 ILCS 2405/0.1 et seq. (West 2010)) and provides
wastewater conveyance and treatment services to certain properties located in and around
-2-
2014 IL App (2d) 130813
Rockford. On July 26, 2010, plaintiff’s committee on local improvements (Committee) adopted
a resolution to build the Oak Crest project and to levy a special assessment to pay for it (First
Resolution). See 70 ILCS 2405/22a.5 (West 2010). The First Resolution set forth a legal
description of the property to be served by the Oak Crest project. The First Resolution also
called for a public hearing on the Oak Crest project and directed that notice of the hearing “shall
be sent by mail to the person or entity shown by the County Collectors current warrant book to
be the party in whose name the general real estate taxes were last assessed on each lot, block,
tract or parcel of land fronting on the proposed improvement.” See 70 ILCS 2405/22a.5 (West
2010).
¶5 On August 23, 2010, the public hearing was held to allow comments and questions
regarding the Oak Crest project. The Committee met immediately after the hearing and adopted
another resolution (Second Resolution). See 70 ILCS 2405/22a.6 (West 2010). The Second
Resolution noted that a public hearing had been held “on the question of the desirability of the
proposed local improvement to be paid for by special assessment” and that “no sufficient
objection was made to the proposed improvement.” Accordingly, the Committee recommended
“that the proposed improvement be made in accordance with an ordinance authorizing the same.”
¶6 On October 25, 2010, plaintiff’s board of trustees adopted Ordinance No. 10/11-S-02
(2010 Ordinance) (Rock River Water Reclamation District Ordinance No. 10/11-S-02 (adopted
Oct. 25, 2010)). See 70 ILCS 2405/22a.5 (West 2010). The 2010 Ordinance provided that “[a]
local improvement *** to be paid for by special assessment shall be constructed in the Rock
River Water Reclamation District *** consisting of sanitary sewers benefiting and potentially
serving” the properties legally described therein, which properties were designated collectively
as the “Oak Crest Sanitary Sewer Area.” Rock River Water Reclamation District Ordinance No.
-3-
2014 IL App (2d) 130813
10/11-S-02 (adopted Oct. 25, 2010). The 2010 Ordinance authorized a levy upon the property
owners in said area to pay for the improvement and incorporated by reference a plat map of the
Oak Crest project.
¶7 To connect the Oak Crest project to the existing sanitary sewer system, plaintiff proposed
running a “trunk line” beneath defendant’s property, thereby requiring plaintiff to obtain a
permanent easement and a temporary construction easement. Between January 17, 2011, and
March 24, 2011, representatives for the parties met on at least three occasions to discuss the
acquisition of the easements, but they were unable to reach an agreement. As a result, on April
7, 2011, plaintiff filed its first complaint for condemnation against defendant (2011 Complaint or
first condemnation action). Citing section 15 of the Sanitary Act (70 ILCS 2405/15 (West
2010)), the 2011 Complaint provided that “[p]laintiff may acquire by condemnation, all real
property, right of way in privilege, either within or without its corporate limits, which may be
required for its corporate purposes.” The 2011 Complaint alleged that to proceed with the Oak
Crest project it was necessary to acquire a permanent easement and a temporary construction
easement. Attached to the 2011 Complaint was an unexecuted easement describing the land to
be taken and a plat map. Defendant moved to dismiss the 2011 Complaint on two grounds.
First, defendant argued that the 2010 Ordinance failed to state that the Oak Crest project required
the taking of defendant’s property. Second, defendant argued that the plat map attached to the
2010 Ordinance failed to reasonably describe the portion of defendant’s property to be taken.
¶8 In a memorandum of decision and order entered on September 22, 2011, the trial court
granted defendant’s motion to dismiss the 2011 Complaint. The court reasoned as follows:
“Under the [Sanitary Act], in order to proceed with a sewer construction project,
[plaintiff] must prepare and approve an ordinance describing the improvement. 70 ILCS
-4-
2014 IL App (2d) 130813
2405/22a.6. The statute requires that ‘if the improvement requires the taking or
damaging of property, the ordinance shall so state . . .’ Id. Illinois caselaw has further
held that whenever a proposed improvement will require that private property be taken or
damaged, it is required that the enabling ordinance ‘shall describe the property to be
taken or damaged with reasonable certainty.’ City of Kankakee vs. Dunn, 337 Ill. 391,
393 (1929).
In the present case, the Court finds that neither the [2010 Ordinance] nor the
attached plat map state[s] that a taking of Defendant’s property is necessary, nor do they
describe the portion of [defendant’s] property to be taken with reasonable certainty. The
ordinance itself fails to mention the Defendant’s property or the fact that the proposed
improvement will require that easements be obtained by [plaintiff]. The Plaintiff ***
argues that this information is provided by the plat map referred to by the [2010]
Ordinance. However, the plat map does not state that Defendant’s property will be taken.
Moreover, it is the Court’s opinion that the plat map fails to reasonably describe the
portion of [defendant’s] property to be taken for several reasons. First, the map is not
drawn to scale. Second, the map does not state the length, width or total amount of the
land to be taken. Third, the map does not state whether [defendant’s] land is to be taken
by easement, fee simple, or some other method. The map simply shows the path of the
proposed off-site sewer as it progresses through [defendant’s] property with dotted lines
on each side of the sewer lines’ path which is labeled ‘project area’.
The Illinois Supreme Court has held that a line on a map is not sufficient to
provide a reasonable description of the condemned property. City of Kankakee vs. Dunn,
337 Ill. at 395. The Court does not find that the inclusion of more lines cures the
-5-
2014 IL App (2d) 130813
deficiency. The word ‘easement’ does not appear in the [2010 Ordinance] or on the map.
There are no estimates regarding the amount of land to be taken. The plat map simply
shows the scope of the project. The Court does not believe that it was ever intended to
describe with reasonable certainty the amount of Defendant’s land needed to be taken by
[plaintiff]. While it is not improper to attach a map to an enabling ordinance, neither the
[2010 Ordinance] nor the map contain[s] a statement that [plaintiff] requires the taking or
damaging of Defendant’s *** land in order to proceed with the Oak Crest Subdivision
Sanitary Sewer Project. The [2010 Ordinance] is silent on the subject while the map
simply shows a series of lines going through Defendant’s property.
Statutes conferring and ordinances enabling the power of eminent domain must be
strictly construed in order to protect the rights of property owners. Forest Preserve
District of DuPage County vs. Miller, 339 Ill. App. 3d 244, 254 (2d Dist. 2003). In the
present case, the Court finds that the [2010 Ordinance] and attached map violate[] 70
ILCS 2405/22a.6 by failing to state that the project requires the taking of Defendant’s
land, and that the [2010 Ordinance] and map also fail to reasonably describe that portion
of Defendant’s land to be taken.”
¶9 Plaintiff did not appeal the trial court’s ruling of September 22, 2011. Instead, plaintiff
enacted Ordinance No. 11/12-M-08 (2011 Ordinance), titled “Oak Crest Sanitary Sewer
Extension, Special Assessment No. 118 Ordinance Authorizing Condemnation Proceedings”
(Rock River Water Reclamation District Ordinance No. 11/12-M-08 (approved Nov. 28, 2011)).
The 2011 Ordinance incorporated a description of defendant’s property by reference and
provided that “an easement for construction of said sewer is required across and through
[defendant’s] property.” Rock River Water Reclamation District Ordinance No. 11/12-M-08
-6-
2014 IL App (2d) 130813
(approved Nov. 28, 2011). Noting that plaintiff had made several unsuccessful attempts to
negotiate with defendant for the easements, the 2011 Ordinance authorized plaintiff’s attorney to
obtain them by condemnation.
¶ 10 In a letter dated December 6, 2011, plaintiff offered defendant $2,700 for the easements,
double their value as set forth in an appraisal obtained by plaintiff in May 2011. Through its
attorney, defendant rejected plaintiff’s offer but advised that it would consider any other offer
plaintiff wished to make. On January 17, 2012, plaintiff filed its second complaint for
condemnation against defendant (2012 Complaint or second condemnation action). The 2012
Complaint alleged that, pursuant to section 15 of the Sanitary Act (70 ILCS 2405/15 (West
2010)), plaintiff “may acquire by condemnation all real property, right of way in privilege, either
within or without its corporate limits, which may be required for its corporate purposes.” The
2012 Complaint further alleged that to proceed with the Oak Crest project it was necessary to
acquire a permanent sanitary-sewer easement and a temporary construction easement. The 2012
Complaint stated that by virtue of the 2011 Ordinance plaintiff was authorized to exercise the
right of eminent domain to acquire defendant’s property for the Oak Crest project. Finally, the
2012 Complaint prayed for the court to provide just compensation to defendant for plaintiff’s
acquisition of defendant’s property. Attached to the 2012 Complaint was an unexecuted
easement describing the land to be taken, a plat of the easement, and a copy of the 2011
Ordinance.
¶ 11 On February 17, 2012, defendant filed a motion to dismiss with prejudice the 2012
Complaint as barred by a prior judgment, pursuant to section 2-619(a)(4) of the Code of Civil
Procedure (Code) (735 ILCS 5/2-619(a)(4) (West 2010)). In a memorandum accompanying its
motion, defendant argued that res judicata barred the 2012 Complaint because the 2011
-7-
2014 IL App (2d) 130813
Ordinance did not cure the defects of the 2010 Ordinance. According to defendant, “a resolution
to take property does not fix a resolution that authorizes a public improvement but fails to state
the need to take private property for that improvement.” Stated differently, it was defendant’s
position that a declaration to take private property must be made in the same ordinance that
authorizes the public purpose for which the property will be taken. Defendant posited that, in the
absence of a single ordinance authorizing the Oak Crest project, indicating that the taking of
defendant’s property was necessary, and describing with reasonable certainty the land to be
taken, the 2011 Ordinance “ha[d] no effect.” Thus, defendant reasoned, the 2012 Complaint was
not a new cause of action, because (1) the trial court already ruled that the 2010 Ordinance does
not enable plaintiff to take defendant’s property; (2) that ruling was a final judgment on the
merits; and (3) there was an identity of parties.
¶ 12 On June 27, 2012, the trial court denied defendant’s motion to dismiss pursuant to section
2-619(a)(4) of the Code. The court noted that the doctrine of res judicata serves as an absolute
bar to a subsequent action between the same parties or their privies on the same cause of action,
provided that a final judgment on the merits was rendered by a court of competent jurisdiction.
See City of Chicago v. Midland Smelting Co., 385 Ill. App. 3d 945, 955 (2008). The court
concluded, however, that not all of the elements of res judicata were present. The court
explained:
“This Court finds that all of the conditions of res judicata have not been satisfied
because while the identity of the parties or their privies is the same as the previous cause
of action *** the ordinances involved in the new cause of action *** and the previous
action are not identical, and thus the two cause of actions [sic] differ. Specifically, the
[2010 Ordinance] was an Ordinance of the Rock River Water Reclamation District
-8-
2014 IL App (2d) 130813
Providing for the Constr. of Sanitary Sewers in the Oak Crest Sanitary Sewer Area to be
Paid for by Special Assessment No. 118, 10/11-S-02 (Oct. 25, 2010) and the [2011
Ordinance] is Rock River Water Reclamation Dist. Oak Crest Sanitary Sewer Extension,
Special Assessment No. 118 Ordinance Authorizing Condemnation Proceedings, 11/12-
M-08 (Nov. 28, 2011) ***. The [plaintiff’s] new ordinance is applicable to the
Defendant, and unlike the previous ordinance, this ordinance properly describes the land
sought to be condemned by the [plaintiff] under its right of eminent domain granted by
the Sanitary Act pursuant to the Eminent Domain Act (735 ILCS 30/1-1-1 et seq.). 70
ILCS 2405/8; 70 ILCS 2405/15. The [plaintiff’s] curing of the defects of the original
ordinance precludes the dismissal of the current condemnation action under the doctrine
of res judicata because the two ordinances are not identical and are therefore separate
issues.”
¶ 13 The trial court also addressed defendant’s contention, raised for the first time at the
hearing on its motion to dismiss, that it did not receive proper notice of the “special assessment
resolution and the resulting ordinance which preceded [plaintiff’s] condemnation action.” The
court held that defendant could not challenge the special assessment. The court explained that
the condemnation case and the proceedings involving the special assessment were separate
matters governed by different provisions of the Sanitary Act. The court held that sections 22a.5
and 22a.6 of the Sanitary Act (70 ILCS 2405/22a.5, 22a.6 (West 2010)), the notice provisions on
which defendant relied, govern special assessments and “refer to notice requested to be given to
persons who are subject to a special assessment.” Because defendant was not subject to a special
assessment, it was not entitled to mailed notice of the special assessment proceedings. Finally,
the court held that, to the extent that its “prior order” referenced sections 22a.5 and 22a.6, those
-9-
2014 IL App (2d) 130813
citations were made in error. Thereafter, defendant moved for reconsideration of the denial of its
motion to dismiss. Defendant also moved to have questions related to the res judicata and
improper-notice issues certified for interlocutory appeal pursuant to Illinois Supreme Court Rule
308 (eff. Feb. 26, 2010). The trial court denied both the motion to reconsider and the motion to
certify.
¶ 14 On December 27, 2012, defendant filed a traverse and motion to dismiss. Defendant
argued that plaintiff failed to properly invoke its power of eminent domain before attempting to
take defendant’s property. Defendant further argued that the Oak Crest project was not
necessary, the amount of property sought to be taken was excessive, and plaintiff did not make a
good-faith attempt to reach an agreement with defendant on just compensation. Plaintiff moved
to dismiss the traverse or, alternatively, for summary judgment on it. Subsequently, the trial
court certified for interlocutory appeal under Rule 308 the questions related to defendant’s res
judicata and improper-notice arguments. This court denied defendant’s application for leave to
appeal. See Rock River Water Reclamation District v. Sanctuary Condominiums of Rock Cut,
2013 IL App (2d) 130396-U.
¶ 15 On June 17, 2013, a bench trial was held on defendant’s traverse and motion. At the
hearing, plaintiff called three witnesses: Frank Hood, Dana Carroll, and Debbie Lyons. Hood
testified that he is a resident of the Oak Crest subdivision and has been the president of the
subdivision’s homeowner’s association for the past 13 years. Hood testified that none of the
homes in the Oak Crest subdivision have sanitary sewer service. Instead, they use septic
systems. Hood testified that some homeowners experience continual problems with the septic
systems. He noted, for instance, that, as a result of clay soil in the area, some residents are
required to frequently replace their septic tanks. According to Hood, it costs $10,000 “every
- 10 -
2014 IL App (2d) 130813
couple of years” to have the septic systems fixed. Hood testified that other methods to dispose of
sanitary waste were explored, such as pump systems. However, the pumps freeze in the winter,
causing backups into the homes. Hood also pointed out that some parcels in the Oak Crest
subdivision cannot be developed because they will not support septic systems. Hood represented
that land could be developed only if sanitary sewers were installed.
¶ 16 Carroll is employed as plaintiff’s engineering manager. Carroll testified that the Oak
Crest subdivision is currently served by septic systems, most of which date back to the sixties or
early seventies. Carroll stated that these septic systems are regulated by the county health
department. According to Carroll, the health department “recognizes the benefits of a sanitary
sewer over septic system for public waste disposal.” Carroll noted that the health department has
regulations in place that require residents to connect to sanitary sewer service if their septic
system fails or needs repair and if sanitary sewer is available within 200 feet of the property.
¶ 17 Carroll testified that gravity sewer service is the most convenient, reliable, and cost-
effective way to serve property. As a result, it is plaintiff’s policy to install gravity sewer service
wherever possible. Carroll noted that gravity sewer service requires plaintiff to take into account
the area’s topography. He explained that the sewer lines need to be placed deep enough so that
gravity will move the wastewater without pumps. Carroll testified that topographically the Oak
Crest subdivision sits on a high-ground ridge line. To determine the route that would provide the
best service to the Oak Crest subdivision, Carroll analyzed the properties that needed to be
served and their proximity to existing sewer lines in the vicinity. Carroll noted that an existing
sewer line in the Colville Heights area is not deep enough to serve all of the Oak Crest
subdivision. Carroll determined, however, that a line running south from the Oak Crest
subdivision and then west to an existing sewer line at Briar Patch Lane can be made deep enough
- 11 -
2014 IL App (2d) 130813
to serve the Oak Crest subdivision. Carroll stated that the identified route is the most direct, the
one that will serve the greatest number of properties, and the most cost-effective.
¶ 18 Carroll further testified that, after plaintiff enacted the 2010 Ordinance, his department
drafted legal descriptions of all of the easements needed for the Oak Crest project, including the
permanent and temporary construction easements on defendant’s property. Carroll assigned his
employee Ken Kelley, a licensed surveyor, to the easement negotiations. Kelley made routine
reports to Carroll regarding the progress of the negotiations. Carroll noted that during
negotiations plaintiff typically offers to pay restoration costs. According to Carroll, during the
negotiations here, plaintiff made proposals to defendant, but defendant never tendered any
monetary demands in return. Carroll testified that a May 2011 appraisal obtained by plaintiff
concluded that just compensation for the easements was $1,350.
¶ 19 Carroll testified that, despite the dismissal of the 2010 Complaint, plaintiff opted to
proceed with the Oak Crest project. To that end, plaintiff enacted the 2011 Ordinance.
Thereafter, plaintiff directed its attorney to negotiate with defendant prior to commencing
another condemnation suit. Plaintiff offered defendant $2,700 for the easements, double the
appraised value of the property. According to Carroll, the $2,700 would be in addition to any
restoration costs. Carroll noted that defendant declined plaintiff’s offer and presented no
counteroffer.
¶ 20 On cross-examination, Carroll testified that the sewer line traversing defendant’s property
would be a 12-inch trunk line. Carroll allowed that the installation of a trunk line “will disturb a
lot of ground.” He explained that, to physically lay the trunk line, an excavator will dig a ditch
to the depth prescribed on the plans, the trunk line will be laid in, and the ditch will be backfilled.
Carroll acknowledged that, during the initial negotiations with defendant in the spring of 2011,
- 12 -
2014 IL App (2d) 130813
the parties discussed landscaping replacement and additional plantings. Carroll also testified that
he prepared a cost estimate of the Oak Crest project, which estimate included the cost of the
trunk line running beneath defendant’s property.
¶ 21 Lyons serves as plaintiff’s executive services coordinator. Lyons testified that her
responsibilities in that position include providing notice of public meetings and maintaining
permanent records of those meetings, including the minutes. Lyons noted that plaintiff’s board
meetings are open to the public. Lyons identified plaintiff’s exhibit No. 2 as the minutes of the
meeting on November 28, 2011, where the board approved the 2011 Ordinance. Lyons also
identified plaintiff’s exhibit No. 4 as the sign-in sheet for the November 28, 2011, meeting.
Lyons testified that the sign-in sheet indicates the members of the public who were present at the
meeting. The sign-in sheet shows that defendant’s attorney attended the meeting.
¶ 22 Defendant opted not to call any witnesses. Following closing arguments, the trial court
found that the Oak Crest project was necessary, that plaintiff negotiated in good faith, and that
the amount of property to be taken for the easements was not excessive. The court also
determined that plaintiff’s authority for the taking was established by the 2011 Ordinance.
Accordingly, the court denied defendant’s traverse and motion to dismiss.
¶ 23 On August 1, 2013, the trial court heard evidence on the question of just compensation.
Plaintiff called Matthew Magdziarz, a real estate appraiser. Magdziarz testified that he was hired
to prepare an appraisal of sanitary sewer easements across defendant’s property. Magdziarz
prepared an appraisal in May 2011, which he updated in July 2013 with a “retrospective” value
date of January 17, 2012. Magdziarz testified that the impressments of the easements would
have no effect on the highest and best use of defendant’s property and would not inhibit its
utility, size, or further development. Magdziarz concluded that the fair cash value of the
- 13 -
2014 IL App (2d) 130813
permanent easement was $1,200 and the fair cash value of the temporary construction easement
was $150, for a total value of $1,350.
¶ 24 Defendant called Nicola Bennett, a resident in the condominium complex and a former
officer in defendant’s homeowner’s association. Defendant sought to introduce testimony from
Bennett regarding a landscape architect’s estimate for restoring defendant’s property after
installation of the proposed trunk line. Plaintiff objected on the grounds that Bennett’s testimony
was (1) irrelevant to the issue of the easements’ value and (2) hearsay. The trial court sustained
the objection on both grounds. Defendant then made an offer of proof regarding Bennett’s
testimony.
¶ 25 Following closing arguments, the trial court ruled that $1,350 was just compensation for
the easements. On August 8, 2013, the trial court entered an order granting the easements. In
the order, the trial court authorized plaintiff to take “immediate possession” of the property in
question. The order further provided that, if defendant filed a notice of appeal, “such immediate
possession shall be subject to the Plaintiff posting a bond pursuant to 735 ILCS 30/10-5-80.” On
the same day the order was entered, defendant filed both a notice of appeal “from the Order
entered on August 8, 2013,” and a motion for a stay pending appeal pursuant to Illinois Supreme
Court Rule 305(b) (eff. July 1, 2004). Plaintiff then posted bond in the amount of $1,350. On
September 16, 2013, the trial court heard oral arguments on defendant’s motion for a stay and
granted it. The court’s stay ruling was reduced to writing on September 17, 2013. In a separate
appeal, this court affirmed the trial court order granting the stay. Rock River Water Reclamation
District v. Sanctuary Condominiums of Rock Cut, 2014 IL App (2d) 131081-U.
¶ 26 II. ANALYSIS
- 14 -
2014 IL App (2d) 130813
¶ 27 On appeal, defendant raises three principal issues. First, defendant contends that the trial
court erred in denying its section 2-619(a)(4) motion to dismiss (735 ILCS 5/2-619(a)(4) (West
2010)) plaintiff’s second condemnation action, on the ground of res judicata. Second, defendant
argues that the trial court erred in denying its traverse and motion to dismiss, because plaintiff
neither made a prima facie showing that it has the authority to take defendant’s property nor
established that the Oak Crest project is necessary. Third, defendant argues that the trial court
erred in refusing to compensate it for any damage that the installation of the proposed trunk line
would cause to its property. Prior to addressing these issues, we discuss three preliminary
matters—defendant’s motion to strike portions of plaintiff’s brief, plaintiff’s motion for
sanctions against defendant, and plaintiff’s claim that we lack jurisdiction to consider
defendant’s res judicata argument.
¶ 28 A. Open Motions
¶ 29 Defendant has filed a motion to strike portions of plaintiff’s brief, pursuant to Illinois
Supreme Court Rule 375(a) (eff. Feb. 1, 1994). Defendant identifies three particular passages
from the brief that, it maintains, are not supported by citations to authority and therefore violate
Illinois Supreme Court Rules 341(h)(7) and (i) (eff. Feb. 6, 2013) (requiring the appellee’s brief
to include argument “which shall contain the contentions of the [appellee] and the reasons
therefor, with citation of the authorities and the pages of the record relied on”). Plaintiff has
filed an objection to defendant’s motion to strike and a motion for monetary sanctions against
defendant pursuant to Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994). According to
plaintiff, the motion to strike was not brought in good faith and is legally without merit.
¶ 30 Initially, we agree that defendant’s motion to strike lacks merit. Of the three passages
referenced by defendant, two appear in the section of plaintiff’s brief entitled “Summary of
- 15 -
2014 IL App (2d) 130813
Argument.” It is clear from reading plaintiff’s brief that plaintiff intended this section to serve as
a synopsis of the arguments it would later present and develop in its brief, and we find no rule
violation with regard to those passages. The third passage appears in the argument section of
plaintiff’s brief and consists of approximately 10 pages. This passage is a response to
defendant’s position regarding the interpretation and application of section 22a.6 of the Sanitary
Act (70 ILCS 2405/22a.6 (West 2010)). The third passage also seeks to distinguish the
authorities defendant cites in its opening brief. In its objection to defendant’s motion to strike,
plaintiff concedes that it did not cite any direct authority for its interpretation and application of
section 22a.6. It notes, however, that it was unable to find any authority interpreting this
provision. Nevertheless, plaintiff asserts that its position is not devoid of any support and points
out that it discusses a case that indirectly supports its position. We agree with plaintiff and
therefore deny plaintiff’s motion to strike.
¶ 31 Despite our conclusion that defendant’s motion to strike lacks merit, we also deny
plaintiff’s motion for monetary sanctions against defendant. Nevertheless, we do admonish
defendant’s attorney for what to us appears to be an attempt to place before this court additional
argument that defendant was unable to include in its reply brief because of the page limitations
mandated by Illinois Supreme Court Rule 341(b) (eff. Feb. 6, 2013) (limiting the appellant’s
opening brief to 50 pages and the appellant’s reply brief to 20 pages absent permission from the
reviewing court to exceed these limitations). We presume that the purpose of defendant’s
motion to strike was to explain to this court why portions of plaintiff’s brief violate the rules of
our supreme court and should therefore be disregarded. Yet, rather than confine the motion to
this narrow issue, defendant devotes a substantial portion of the argument section of the motion
to discussing the merits of the underlying appeal. Therefore, we admonish defendant’s attorney
- 16 -
2014 IL App (2d) 130813
for attempting to circumvent the page limitations promulgated by our supreme court. Such
conduct is not well taken, and, while we decline to impose monetary sanctions in this instance,
we will not hesitate to do so in the future should we find a violation of court rules.
¶ 32 B. Jurisdiction
¶ 33 Next, we address whether we have jurisdiction to review the propriety of the trial court’s
order denying defendant’s section 2-619(a)(4) motion to dismiss on the ground of res judicata.
Plaintiff insists that we lack jurisdiction to consider that issue, because the order denying the
motion to dismiss was not specified in defendant’s notice of appeal.
¶ 34 “The purpose of a notice of appeal is to inform the party prevailing in the trial court that
the opposing party seeks review of the judgment ***.” Ruane v. Amore, 287 Ill. App. 3d 465,
470 (1997). To this end, Illinois Supreme Court Rule 303(b)(2) (eff. May 30, 2008) requires the
notice of appeal to “specify the judgment appealed from and the relief sought from the reviewing
court.” Nevertheless, the notice of appeal is to be liberally construed as a whole. In re Marriage
of Goldberg, 282 Ill. App. 3d 997, 1001 (1996). Thus, in Burtell v. First Charter Service Corp.,
76 Ill. 2d 427, 434 (1979), the supreme court held that a notice of appeal need not specify a
particular order to confer jurisdiction if the order specified in the notice of appeal directly relates
back to the order sought to be reviewed. Stated differently, an “unspecified judgment is
reviewable if it is a ‘step in the procedural progression leading’ to the judgment specified in the
notice of appeal.” Burtell, 76 Ill. 2d at 435 (quoting Elfman Motors, Inc. v. Chrysler Corp., 567
F.2d 1252, 1254 (3d Cir. 1977)).
¶ 35 Defendant raised the res judicata argument in its section 2-619(a)(4) motion to dismiss.
The trial court denied that motion in an order entered on June 27, 2012. Plaintiff notes, however,
that defendant’s notice of appeal references only the August 8, 2013, order vesting plaintiff with
- 17 -
2014 IL App (2d) 130813
title to the easements. Further, for reasons discussed more fully below, plaintiff insists that the
June 27, 2012, order denying the motion to dismiss was not a step in the procedural progression
leading to the August 8, 2013, judgment specified in the notice of appeal. As a result, plaintiff
maintains, we lack jurisdiction to entertain defendant’s res judicata argument and must strike
those pages of defendant’s brief devoted to that issue.
¶ 36 In support of its position, plaintiff relies on Dalen v. Ozite Corp., 230 Ill. App. 3d 18
(1992). In Dalen, the plaintiff filed a complaint seeking payment of principal and interest owed
on two notes. On June 26, 1991, the trial court granted summary judgment in favor of the
plaintiff, and the defendant subsequently appealed. The defendant’s brief sought review of five
different orders entered by the trial court. However, only one—the order granting summary
judgment—was identified in the defendant’s notice of appeal. Among the orders not referenced
in the notice of appeal were an order denying the defendant’s motion to dismiss pursuant to
section 2-619(a)(3) of the Code (Ill. Rev. Stat. 1989, ch. 110, ¶ 2-619(a)(3) (providing for
involuntary dismissal on the basis that there is another action pending between the same parties
for the same cause)) and an order denying a motion to reconsider that ruling. The Dalen court
held that neither the order denying the motion to dismiss nor the order denying the motion to
reconsider was a step in the procedural progression leading to the order specified in the notice of
appeal, because the two orders “focused on matters outside the scope of the cause at issue.”
(Emphasis in original.) Dalen, 230 Ill. App. 3d at 24. The court elaborated that the defendant
“was apparently attempting to either dismiss the instant action because of the pending action in
[another county], or include the separate issues raised there in this action.” Dalen, 230 Ill. App.
3d at 24.
- 18 -
2014 IL App (2d) 130813
¶ 37 Plaintiff asserts that, just as in Dalen, the denial of the motion to dismiss in this case was
not a step in the procedural progression leading to the final judgment specified in defendant’s
notice of appeal. According to plaintiff, defendant’s section 2-619(a)(4) motion to dismiss, like
the section 2-619(a)(3) motion to dismiss in Dalen, “focused on matter ‘outside the scope of the
cause at issue,’ namely, the ruling from the [first condemnation action] that the [2010] Ordinance
failed to describe defendant’s property and could not support its condemnation.” In contrast,
plaintiff argues, “[t]he final judgment of condemnation *** was based on the [2011] Ordinance,
not the [2010] Ordinance that was the subject of the [first condemnation action] and the 2-
619(a)(4) motion.” Thus, plaintiff reasons, the ruling on defendant’s motion to dismiss
concerned a collateral matter—a proceeding in another case—and did not form any basis for the
final judgment identified in the notice of appeal. We disagree.
¶ 38 In its section 2-619(a)(4) motion to dismiss and the accompanying memorandum,
defendant argued that plaintiff could not cure the defects in the 2010 Ordinance by enacting a
separate ordinance stating that the taking was necessary and describing the property sought to be
taken. Thus, defendant posited, in the absence of a single ordinance authorizing the Oak Crest
project, indicating that a taking was necessary, and describing the land to be taken, the 2011
Ordinance “ha[d] no effect.” In other words, contrary to plaintiff’s position, defendant’s section
2-619(a)(4) motion to dismiss did not concern the 2010 Ordinance. Rather it involved whether
plaintiff properly invoked its eminent domain power by enacting the 2011 Ordinance. Indeed, in
ruling on defendant’s section 2-619(a)(4) motion, the trial court’s analysis centered on whether
the 2011 Ordinance cured the deficiencies identified with the 2010 Ordinance in the first
condemnation action. Accordingly, we find that the trial court’s ruling on defendant’s section 2-
619(a)(4) motion was necessary to the ultimate relief sought by plaintiff, i.e., acquisition of
- 19 -
2014 IL App (2d) 130813
easements across defendant’s property, and therefore constituted a step in the procedural
progression leading to the judgment specified in the notice of appeal. Thus, we have jurisdiction
to consider defendant’s res judicata argument.
¶ 39 C. Res Judicata
¶ 40 Turning to the merits, defendant initially argues that the trial court erred in denying its
section 2-619(a)(4) motion to dismiss plaintiff’s second condemnation action on the ground of
res judicata. According to defendant, res judicata bars this action because the first
condemnation action was dismissed by a final judgment on the merits, the parties are the same in
both actions, and the same facts provide the foundation for both the previous and current actions.
Plaintiff responds that the ordinance upon which the second condemnation action is based is a
different ordinance from the one at issue in the first condemnation action. Therefore, plaintiff
maintains, the two suits have “different foundations and describe different transactions,” and res
judicata does not bar the second condemnation action.
¶ 41 “ ‘The doctrine of res judicata provides that a final judgment on the merits rendered by a
court of competent jurisdiction bars any subsequent actions between the same parties or their
privies on the same cause of action.’ ” Hudson v. City of Chicago, 228 Ill. 2d 462, 467 (2008)
(quoting Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334 (1996)). Res judicata acts as a bar
to litigation of all issues that were actually decided and that could have been raised and decided
in the earlier action. City of Chicago v. Midland Smelting Co., 385 Ill. App. 3d 945, 955 (2008).
There are three essential elements of res judicata: (1) a final judgment on the merits rendered by
a court of competent jurisdiction; (2) an identity of parties or their privies; and (3) an identity of
causes of action. Hudson, 228 Ill. 2d at 467. We review de novo a trial court order granting or
- 20 -
2014 IL App (2d) 130813
denying a motion to dismiss on the ground of res judicata. Marvel of Illinois, Inc. v. Marvel
Contaminant Control Industries, Inc., 318 Ill. App. 3d 856, 863 (2001).
¶ 42 In this case, it is not disputed that there was a final judgment on the merits rendered by a
court of competent jurisdiction in the first condemnation action or that there is an identity of
parties in that action and the second condemnation action. The issue in dispute is whether the
two condemnation actions involve the same cause of action. In determining whether there is an
identity of causes of action, Illinois courts apply the “transactional test.” Cooney v. Rossiter,
2012 IL 113227, ¶ 21. Under this test, a court examines whether the subsequent action arises out
of the same set of operative facts as the original action. River Park, Inc. v. City of Highland
Park, 184 Ill. 2d 290, 311 (1998). In other words, a cause of action is defined by the facts that
give the plaintiff a right to relief, and, if the same facts are essential to the maintenance of both
proceedings, then there is an identity between the allegedly different causes of action and res
judicata bars the latter action. People ex rel. Burris v. Progressive Land Developers, Inc., 151
Ill. 2d 285, 295 (1992).
¶ 43 Instructive in determining whether there is an identity of causes of action is City of
Chicago, 385 Ill. App. 3d 945. In that case, Chicago enacted an ordinance authorizing the
acquisition of the defendant’s entire parcel of property. Thereafter, Chicago filed a
condemnation action. The defendant filed a traverse and motion to dismiss, contending that the
condemnation action was unnecessary and constituted an excessive taking of property for private
use. The trial court dismissed Chicago’s condemnation action, finding that the taking authorized
by the ordinance was excessive because only the northern portion of the defendant’s property
was needed for the desired purpose. Chicago then filed a motion requesting that the trial court
modify its judgment to reflect that the acquisition of the northern portion of the property was
- 21 -
2014 IL App (2d) 130813
proper and could proceed, but the trial court denied the motion. In response, Chicago enacted a
new ordinance authorizing the acquisition of only the northern portion of the property.
Following unsuccessful negotiations to acquire the northern portion of the property, Chicago
filed a second condemnation action. The defendant again filed a traverse and motion to dismiss,
contending that the second lawsuit was barred by res judicata because Chicago could have
sought to acquire only the northern portion in the prior action. The trial court denied the traverse
and motion to dismiss, finding that the amount of land sought in the second action was less than
the amount requested in the initial lawsuit.
¶ 44 On appeal, the reviewing court affirmed the trial court’s finding that res judicata did not
bar Chicago’s second condemnation action. City of Chicago, 385 Ill. App. 3d at 960. The court
concluded that the two lawsuits did not involve the same cause of action, because each lawsuit
was based on a different set of facts. City of Chicago, 385 Ill. App. 3d at 960. The court initially
noted that the first lawsuit was brought pursuant to an ordinance authorizing Chicago to acquire
all of the defendant’s land whereas the second lawsuit was brought pursuant to an ordinance
authorizing Chicago to acquire only a portion of the defendant’s property. City of Chicago, 385
Ill. App. 3d at 960. Thus, the court reasoned, “the two cases are based upon substantively
different ordinances and the ordinance giving rise to the present case is an additional fact that did
not exist at the time of the initial lawsuit.” City of Chicago, 385 Ill. App. 3d at 960. The court
also pointed out that the reduction in the amount of land sought in the second action “is a
changed circumstance that could have a decisive impact on the trial court’s redetermination of
whether the taking was necessary.” City of Chicago, 385 Ill. App. 3d at 960. Finally, the court
noted that “an additional issue that was critical to the court’s dismissal of the prior lawsuit” was
not present in the second action. City of Chicago, 385 Ill. App. 3d at 960. Specifically, the
- 22 -
2014 IL App (2d) 130813
ordinance at issue in the first action did not permit Chicago to take less than all of the
defendant’s property whereas the ordinance at issue in the second action authorized Chicago to
acquire half of the defendant’s property. City of Chicago, 385 Ill. App. 3d at 960.
¶ 45 In holding that res judicata was not applicable, the court in City of Chicago relied on
various cases, including County of Wabash v. Partee, 241 Ill. App. 3d 59 (1993). At issue in
County of Wabash was whether two attempts to acquire the same parcel of property involved the
same cause of action for purposes of res judicata. In that case, the City of Mount Carmel sought
to condemn land outside of its municipal limits to construct a highway so that traffic going to a
nearby college could bypass Mount Carmel’s congested downtown area. The Illinois Supreme
Court affirmed the dismissal of Mount Carmel’s condemnation action because the subject
property was not substantially adjacent and contiguous to the incorporated parts of the
municipality, as required by section 11-61-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1975,
ch. 24, ¶ 11-61-1). See City of Mount Carmel v. Partee, 74 Ill. 2d 371 (1979). Several years
later, Mount Carmel and Wabash County (Wabash) entered into an intergovernmental agreement
whereby Mount Carmel and Wabash exchanged certain property so that Wabash could complete
a county highway. The property involved in the intergovernmental agreement was the same
property involved in Mount Carmel’s condemnation action. After negotiations to acquire the
property failed, Wabash filed a complaint for condemnation pursuant to section 5-801 of the
Illinois Highway Code (Ill. Rev. Stat. 1989, ch. 121, ¶ 5-801). The defendants filed a traverse
and motion to dismiss, citing several grounds for dismissal, including res judicata as a result of
the supreme court’s ruling in the prior lawsuit. The trial court denied the traverse and motion to
dismiss, and the defendants appealed.
- 23 -
2014 IL App (2d) 130813
¶ 46 On appeal, the reviewing court also rejected the defendants’ res judicata argument.
County of Wabash, 241 Ill. App. 3d at 64-66. The court concluded that the only element of res
judicata present was a final judgment on the merits—the earlier ruling by the supreme court.
County of Wabash, 241 Ill. App. 3d at 64. With respect to an identity of causes of action, the
court noted that the issue before the supreme court in the prior action was “whether [Mount
Carmel] had the right to condemn [the defendants’] land which was not contiguous to the city
under the applicable section[s] of the Illinois Municipal Code,” while the controlling issue in the
second action was “whether *** Wabash is authorized to condemn [the defendants’] land under
[the applicable] section *** of the Illinois Highway Code.” County of Wabash, 241 Ill. App. 3d
at 65. The court further noted that in the second action, unlike in the first lawsuit, neither the
jurisdiction of the city nor the location of the property in relation to the city was at issue and that
the only commonality between the two cases was the defendants and the property. County of
Wabash, 241 Ill. App. 3d at 65-66.
¶ 47 A similar issue was also presented in People ex rel. Cherry Valley Fire Protection
District v. City of Rockford, 122 Ill. App. 2d 272 (1970). There, the City of Rockford sought to
annex certain property. The annexation ordinance was found to be invalid because (1) Rockford
did not properly notify the plaintiff and (2) the property sought to be annexed was not contiguous
to Rockford. Thereafter, Rockford enacted a second annexation ordinance, in which it properly
notified the plaintiff, covering the same territory plus one additional lot. The plaintiff challenged
the second annexation ordinance, contending, among other things, that the judgment in the first
lawsuit barred the second action, based on res judicata. The reviewing court rejected the
plaintiff’s claim, finding the absence of identity of causes of action between the two lawsuits.
People ex rel. Cherry Valley Fire Protection District, 122 Ill. App. 2d at 274-75. The court
- 24 -
2014 IL App (2d) 130813
explained that the deficiencies identified with the first annexation ordinance—improper notice
and lack of contiguity—were not at issue in the second action. People ex rel. Cherry Valley Fire
Protection District, 122 Ill. App. 2d at 274. The court also remarked that, if it were to determine
that res judicata applied, “it would mean that this territory could never be annexed to the City of
Rockford.” People ex rel. Cherry Valley Fire Protection District, 122 Ill. App. 2d at 274.
¶ 48 In light of the foregoing cases, we conclude that the two lawsuits in this case do not share
an identity of causes of action, because they are based upon different sets of operative facts. The
second condemnation action is based upon the 2011 Ordinance whereas the first condemnation
action was based upon the 2010 Ordinance. The 2010 Ordinance provided for the construction
of sanitary sewers in the Oak Crest Sanitary Sewer Area and provided for a special assessment to
pay for the project. Plaintiff’s first condemnation action was dismissed after the trial court
concluded that the 2010 Ordinance neither stated that a taking of defendant’s property was
necessary nor described the portion of defendant’s property to be taken. In an attempt to cure
these deficiencies, plaintiff enacted the 2011 Ordinance, which states that an easement across
defendant’s property is necessary, incorporates a description of defendant’s property by
reference, provides that plaintiff’s attempts to negotiate for the easement have been unsuccessful,
and authorizes plaintiff to initiate condemnation proceedings to acquire the defendant’s property.
In other words, the 2010 Ordinance’s deficiencies identified by the trial court in the first
condemnation action were not at issue in the second condemnation action. See City of Chicago,
385 Ill. App. 3d at 960; County of Wabash, 241 Ill. App. 3d at 65-66; People ex rel. Cherry
Valley Fire Protection District, 122 Ill. App. 2d at 274. Thus, res judicata does not bar the
second condemnation action. 1
1
Defendant also argues that res judicata bars the second condemnation action because
- 25 -
2014 IL App (2d) 130813
¶ 49 D. Traverse
¶ 50 Next, defendant argues that the trial court erred in denying its traverse and motion to
dismiss. A traverse is a method by which a party objects to a condemning entity’s authority to
condemn. Forest Preserve District, 339 Ill. App. 3d at 250. “When a complaint to condemn is
traversed, the trial court may determine all questions raised regarding the condemnor’s right to
condemn the property.” Forest Preserve District, 339 Ill. App. 3d at 250. In a traverse, the
burden of proof shifts to the condemnor to prove the disputed allegations. Forest Preserve
District, 339 Ill. App. 3d at 250. If the condemnor fails to sustain its burden, the action will be
dismissed. Forest Preserve District, 339 Ill. App. 3d at 250.
¶ 51 Defendant initially argues that the trial court erred in denying its traverse and motion to
dismiss because plaintiff failed to properly invoke its power of eminent domain. According to
plaintiff “has not satisfied the statutory conditions precedent to exercise the eminent-domain
power.” More precisely, defendant contends that plaintiff “has not resolved to construct the Oak
Crest project and to take [defendant’s] land for that project in one and the same ordinance,” as
required by the Sanitary Act. See 70 ILCS 2405/22a.6 (West 2010). According to defendant, in
the absence of a single ordinance both authorizing the Oak Crest project and resolving to take
defendant’s land therefor, the second condemnation action is barred by the trial court’s judgment
in the first condemnation action. This argument was presented in defendant’s section 2-
619(a)(4) motion to dismiss. However, we are not sure that this states a res judicata issue. To
be sure, the alleged invalidity of the 2011 Ordinance could constitute a viable defense to the
merits of the second condemnation action. Yet, it is not clear to us why this would constitute res
judicata given the fact that the first and second condemnation actions are based on two distinct
ordinances and therefore do not share an identity of causes of action.
- 26 -
2014 IL App (2d) 130813
defendant, in order to properly invoke its eminent-domain power, sections 22a.5 and 22a.6 of the
Sanitary Act (70 ILCS 2405/22a.5, 22a.6 (West 2010)) required plaintiff to promulgate an
ordinance that both approves the underlying project and resolves to take defendant’s land for the
project. Plaintiff responds that it properly exercised its eminent-domain power pursuant to
sections 8 and 15 of the Sanitary Act (70 ILCS 2405/8, 15 (West 2010)).
¶ 52 Section 8 of the Sanitary Act (70 ILCS 2405/8 (West 2010)) provides that a sanitary
district “may acquire by purchase, condemnation, or otherwise all real and personal property,
right of way and privilege, either within or without its corporate limits that may be required for
its corporate purposes.” As the parties’ arguments suggest, the Sanitary Act provides various
methods for a sanitary district to acquire property by condemnation.
¶ 53 Plaintiff cites section 15 of the Sanitary Act (70 ILCS 2405/15 (West 2010)). That
section provides in relevant part:
“Whenever the board of trustees of any sanitary district shall pass an ordinance for the
making of any improvement which such district is authorized to make, the making
of which will require that private property should be taken or damaged, such district may
cause compensation therefor to be ascertained, and may condemn and acquire possession
thereof in the same manner as nearly as may be as is provided for the exercise of the right
of eminent domain under the Eminent Domain Act ***.” 70 ILCS 2405/15 (West 2010).
Section 10-5-10(a) of the Eminent Domain Act (735 ILCS 30/10-5-10(a) (West 2010)) provides
that, when a public entity has the power to take property for public use, the entity “may apply to
the circuit court of the county where the property or any part of the property is situated, by filing
with the clerk a complaint.” Section 10-5-10(a) of the Eminent Domain Act further provides that
the complaint “shall set forth, by reference, (i) the complainant’s authority in the premises, (ii)
- 27 -
2014 IL App (2d) 130813
the purpose for which the property is sought to be taken or damaged, (iii) a description of the
property, and (iv) the names of all persons interested in the property as owners or otherwise, as
appearing of record, if known, or if not known stating that fact; and shall pray the court to cause
the compensation to be paid to the owner to be assessed.” 735 ILCS 30/10-5-10(a) (West 2010).
The Eminent Domain Act then outlines additional procedures for the condemnation action.
¶ 54 In contrast, sections 22a.5 and 22a.6 of the Sanitary Act (70 ILCS 2405/22a.5, 22a.6
(West 2010)), the provisions cited by defendant, are part of an “alternative special assessment
procedure.” See 70 ILCS 2405/22a.1 et seq. (West 2010). Section 22a.5 provides in pertinent
part that “[a]ll ordinances for local improvements to be paid for wholly or in part by special
assessment *** shall originate with the committee of local improvements.” 70 ILCS 2405/22a.5
(West 2010). Section 22a.5 further provides:
“The committee may request the board’s engineer to prepare preliminary plans and
specifications for the proposed improvement together with an estimate of the cost of
the improvement (omitting land to be acquired), itemized to the satisfaction of the
committee and certified by the engineer’s signature to be an estimate which does not
exceed the probable cost of the proposed improvement, including the lawful expenses
attending the improvement. Upon presentation of such preliminary plans and
specifications and the estimate of cost, the committee may adopt a resolution describing
the proposed improvement and scheduling a public hearing before the committee to
consider whether such scheme shall be recommended to the board. The resolution may
provide that the plans and specifications for the proposed improvement be made part of
the resolution by reference to plans and specifications adopted or published by the State
of Illinois or any political subdivision or agency thereof. Whenever the proposed
- 28 -
2014 IL App (2d) 130813
improvement requires that private or public property be taken or damaged, the resolution
shall describe the property proposed to be taken or damaged for that purpose. The
committee shall also fix in the resolution a place, day and time for a public hearing
thereon.” 70 ILCS 2405/22a.5 (West 2010).
Section 22a.6 provides what happens at the public hearing and afterward:
“At the time and place fixed in the specified notice for the public hearing, the
committee of local improvements shall meet and hear the representations of any person
desiring to be heard on the subject of the necessity for the proposed improvement, the
nature thereof or the cost as estimated. *** The committee may adopt a second or
further resolution abandoning the proposed scheme or adhering thereto, or changing,
altering or modifying the extent, nature, kind, character and estimated cost, provided the
change does not increase the estimated cost of the improvement to exceed 20% of the
estimate set forth in the mailed notice of the public hearing without a further public
hearing pursuant to a new mailed notice given in like manner as the first. Thereupon, if
the proposed improvement is not abandoned, the committee shall have an ordinance
prepared therefor to be submitted to the board. This ordinance shall prescribe the nature,
character, locality and description of the improvement and shall provide whether the
improvement shall be made wholly or in part by special assessment *** of benefited
property and may provide that plans and specifications for the proposed improvement be
made part of the ordinance by reference to plans and specifications on file in the office of
the district’s engineer or to plans and specifications adopted or published by the State of
Illinois or any political subdivision or agency thereof. If the improvement is to be paid in
part only by special assessment ***, the ordinance shall so state. If the improvement
- 29 -
2014 IL App (2d) 130813
requires the taking or damaging of property, the ordinance shall so state, and the
proceedings for making just compensation therefor shall be as described in Sections 9-2-
14 through 9-2-37 of the Illinois Municipal Code, as now or hereafter amended.” 70
ILCS 2405/22a.6 (West 2010).
¶ 55 Sections 9-2-14 through 9-2-37 of the Illinois Municipal Code (65 ILCS 5/9-2-14 to 9-2-
37 (West 2010)) outline a procedure for taking property and making just compensation. Section
9-2-15 of the Illinois Municipal Code (65 ILCS 5/9-2-15 (West 2010)) provides that such
proceedings are commenced by filing a petition “praying that steps may be taken to ascertain the
just compensation to be made for private or public property to be taken or damaged for the
improvement or purpose specified in the ordinance, and to ascertain what property will be
benefited by the improvement, and the amount of those benefits.” Following other sections
outlining additional procedures, section 9-2-34 of the Illinois Municipal Code (65 ILCS 5/2-9-34
(West 2010)) provides that a final judgment rendered in proceedings for making just
compensation “shall be a lawful and sufficient condemnation of the land or property to be taken,
upon the payment of the net amount of the finding.”
¶ 56 Turning to the facts in this case, we conclude that plaintiff was not exercising its
condemnation authority under sections 22a.5 and 22a.6 of the Sanitary Act when it enacted the
2011 Ordinance and filed the 2012 Complaint. Rather, as the trial court found, plaintiff was
exercising its authority under section 15 of the Sanitary Act. Significantly, our review of the
record establishes that the 2011 Ordinance was not promulgated pursuant to the procedure set
forth in sections 22a.5 and 22a.6. For example, there is no indication that, prior to the adoption
of the 2011 Ordinance, plaintiff’s Committee adopted a resolution, scheduled a public hearing to
consider whether to adopt the resolution, adopted a second resolution, and prepared an ordinance
- 30 -
2014 IL App (2d) 130813
to submit to plaintiff’s board of trustees. See 70 ILCS 2405/22a.5, 22a.6 (West 2010).
Moreover, as noted above, section 22a.6 requires that proceedings for making just compensation
“shall be as described in Sections 9-2-14 through 9-2-37 of the Illinois Municipal Code.” 70
ILCS 2405/22a.6 (West 2010). Yet, the 2012 Complaint does not comport with these provisions
of the Illinois Municipal Code. The 2012 Complaint, for instance, does not ask the court “to
ascertain what property will be benefited by the improvement, and the amount of those benefits,”
as section 9-2-15 of the Illinois Municipal Code requires for a petition filed pursuant to this
procedure. See 65 ILCS 5/9-2-15 (West 2010)
¶ 57 In contrast, section 15 of the Sanitary Act provides for the exercise of the right of
condemnation under the Eminent Domain Act. As noted above, section 10-5-10 of the Eminent
Domain Act (735 ILCS 30/10-5-10 (West 2010)) provides that a complaint for condemnation
“shall set forth, by reference, (i) the complainant’s authority in the premises, (ii) the purpose for
which the property is sought to be taken or damaged, (iii) a description of the property, and (iv)
the names of all persons interested in the property as owners or otherwise, as appearing of
record, if known, or if not known stating that fact; and shall pray the court to cause the
compensation to be paid to the owner to be assessed.” The 2012 Complaint sets forth all of these
elements.
¶ 58 First, the initial element, “the complainant’s authority in the premises” refers to statutory
authority. Goldman v. Moore, 35 Ill. 2d 450, 452-53 (1966). Here, the 2012 Complaint cites
section 15 of the Sanitary Act as its statutory authority. Second, the 2012 Complaint states that
plaintiff is “now engaged in acquiring permanent sanitary sewer easements and temporary
construction easements for the construction of a sanitary sewer trunk line” for which it is
necessary to acquire defendant’s property. Thus, it specifies the purpose for which defendant’s
- 31 -
2014 IL App (2d) 130813
property is sought to be taken. Third, the 2012 Complaint describes by reference the property
sought to be taken. Fourth, the 2012 Complaint names all persons interested in the property as
owners or otherwise, as appearing of record, if known, or if not known stating that fact. Finally,
the 2012 Complaint prays the court to cause the compensation to be paid to defendant. Based on
these considerations, we find that the trial court properly determined that plaintiff was
proceeding under section 15 of the Sanitary Act and not under the alternative special assessment
procedure outlined in sections 22a.1 through 22a.55 of the Sanitary Act.
¶ 59 Of course, the consequence of plaintiff’s decision to proceed pursuant to section 15 of the
Sanitary Act means that it cannot use the special assessment authorized by the 2010 Ordinance.
Instead, plaintiff must use other funds to pay for the taking of defendant’s property and for the
construction of the trunk line. If plaintiff chooses to pay for the taking of defendant’s property or
for the trunk line with a special assessment, it will have to follow the procedure set forth in
sections 22a.1 through 22a.55 of the Sanitary Act, including the ordinance and notice
requirements set forth in sections 22a.5 and 22a.6.
¶ 60 Alternatively, defendant argues that it was error for the trial court to deny the traverse and
motion to dismiss because there is no evidence that the Oak Crest project is necessary. Plaintiff
responds that defendant misapprehends its burden at the trial on the traverse. According to
plaintiff, the traverse challenged its authority to take the easements. As such, plaintiff reasons, it
was obligated to make a prima facie case for the necessity of only the easements, not “the
improvement.” Plaintiff further asserts that, even if the necessity of “the improvement” itself
were at issue in the traverse, there was ample evidence to support that as well.
¶ 61 We need not decide whether plaintiff was required to make a prima facie case for the
necessity of both the Oak Crest project and the easements. In its reply brief, defendant states that
- 32 -
2014 IL App (2d) 130813
it does not challenge that plaintiff established the necessity of the easements. Moreover, we
agree with plaintiff that, even if the necessity of “the improvement” itself were at issue in the
traverse, there was ample evidence to support such a finding.
¶ 62 As noted above, when a condemnation action is filed, a landowner may challenge the
lawsuit by filing a traverse and motion to dismiss. Forest Preserve District, 339 Ill. App. 3d at
250. When such a motion is filed, the condemning authority bears the initial burden of
establishing a prima facie case as to any disputed allegations. City of Chicago, 385 Ill. App. 3d
at 965. The introduction of a valid ordinance reciting the necessity of the taking establishes a
prima facie case authorizing the acquisition of the property in question. City of Chicago, 385 Ill.
App. 3d at 965; see Trustees of Schools of Township 37 North, Range 11, Cook County v.
Sherman Heights Corp., 20 Ill. 2d 357, 359 (1960). To rebut a prima facie case of necessity, the
opposing party must produce evidence of an abuse of discretion by the condemning authority.
Department of Transportation ex rel. the People v. Callender Construction Co., 305 Ill. App. 3d
396, 405 (1999).
¶ 63 The term “necessity,” as it relates to a condemnation action, does not mean
“indispensable” or “an absolute necessity.” (Internal quotation marks omitted.) County Board of
School Trustees v. Batchelder, 7 Ill. 2d 178, 181 (1955). Rather, it is construed to mean
expedient, reasonably convenient, or useful to the public. County Board of School Trustees, 7
Ill. 2d at 181. Here, the Oak Crest project was authorized by the 2010 Ordinance. Although the
2010 Ordinance does not explicitly state that the Oak Crest project is necessary, it does so tacitly.
In particular, the 2010 Ordinance authorizes the extension of sanitary sewer service, which is
clearly useful to the public. See City of Nokomis v. Sullivan, 14 Ill. 2d 417, 421-22 (1958)
(noting the health dangers involved in the unsanitary disposition of human excrement). The
- 33 -
2014 IL App (2d) 130813
burden then shifted to defendant to introduce evidence that plaintiff abused its discretion.
Defendant does not indicate what evidence it produced to meet this burden.
¶ 64 However, even if we were to interpret the 2010 Ordinance as lacking a statement of
necessity, this would not necessarily be fatal as long as plaintiff made a showing of necessity at
the hearing on the traverse. People ex rel. Director of Finance v. Young Women’s Christian
Ass’n of Springfield, 86 Ill. 2d 219, 239-40 (1981); City of Oakbrook Terrace v. La Salle
National Bank, 186 Ill. App. 3d 343, 350 (1989). Here, in ruling on defendant’s traverse and
motion to dismiss, the trial court determined that the Oak Crest project was “a necessary project”
because it served a public purpose, i.e., it furthered the health, welfare, and sanitation needs of
the residents of the Oak Crest subdivision. The evidence supports this finding. In particular,
Carroll, plaintiff’s engineering manager, testified that the Oak Crest subdivision is currently
served by septic systems, most of which are more than 40 years old. Carroll related that these
septic systems are regulated by the health department, which prefers sewer over septic systems,
for health and safety reasons. Further, he noted that health department regulations require
residents to connect to sanitary sewer service if a septic system fails or needs repair and sanitary
sewer service is available within 200 feet of the property. In addition, Hood, a 13-year resident
of the Oak Crest subdivision and the president of the homeowner’s association, testified
regarding the problems that residents of the Oak Crest subdivision have encountered with their
septic systems. He further noted that the homeowner’s association explored other means of
sanitary waste disposal but determined that they were not feasible. Defendant presented no
evidence to the contrary. Accordingly, we find that the trial court did not err either in finding
that the Oak Crest project was a necessary project or in denying defendant’s traverse and motion
to dismiss.
- 34 -
2014 IL App (2d) 130813
¶ 65 E. Compensation
¶ 66 Defendant also challenges the award of compensation. According to defendant, in
addition to compensation for the value of the easements, it has a “right to compensation for its
property that [plaintiff] will damage in the course of digging a sewer across its land.”
Essentially, defendant seeks compensation for the costs of relandscaping its property after the
proposed trunk line is installed. Defendant further contends that the trial court erred in excluding
Bennett’s testimony regarding the landscaping estimate.
¶ 67 At the outset, we find that defendant does not support its claim with any cogent analysis.
Instead, defendant merely refers us to a section of the Illinois Constitution (Ill. Const. 1970, art.
I, § 15 (“Private property shall not be taken or damaged for public use without just compensation
as provided by law.”)) and two sections of the Sanitary Act (70 ILCS 2405/15 (West 2010)
(“Whenever *** any sanitary district shall pass an ordinance for the making of an improvement
***, the making of which will require that private property should be taken or damaged, such
district may cause compensation therefor to be ascertained, and may condemn and acquire
possession thereof in the same manner as nearly as may be as is provided for the exercise of the
right of eminent domain under the Eminent Domain Act.”); 70 ILCS 2405/22a.6 (West 2010)
(“If the improvement requires the taking or damaging of property, *** the proceedings for
making just compensation therefor shall be as described in *** the Municipal Code ***.”)).
Citing to Warner/Elektra/Atlantic Corp. v. County of Du Page, 991 F.2d 1280, 1285 (7th Cir.
1993), defendant then states, “[n]othing in the notion of ‘property,’ whether under the Fifth
Amendment to the federal Constitution or in Illinois’s constitutional and statutory provisions
governing condemnation, limits condemnation to real property” and concludes that it was error
“to deny compensation for the damage that [plaintiff] will wreak on [defendant’s] property as it
- 35 -
2014 IL App (2d) 130813
digs a ditch through the easement.” Defendant offers no explanation of how the foregoing
authorities apply to this case, and it cites no case law awarding compensation for the type of
damage at issue. Under these circumstances, defendant has forfeited this claim. Ill. S. Ct. Rule
341(h)(7) (eff. Feb. 6, 2013) (requiring the appellant’s brief to include argument that shall
contain “the contentions of the appellant and the reasons therefor” (emphasis added)); see also
People ex rel. Madigan v. Lincoln, Ltd., 383 Ill. App. 3d 198, 208 (2008) (noting that the failure
to support a proposition with analysis or authority results in forfeiture of the issue on appeal, as it
is not the responsibility of the reviewing court to take on the task of research and reasoning).
¶ 68 Forfeiture notwithstanding, we are not persuaded that the compensation award was in
error. It has been held that allowing “costs to cure” as a separate element of damage in a
condemnation case is “manifestly improper.” Department of Transportation v. First Bank of
Schaumburg, 260 Ill. App. 3d 490, 498 (1992). Rather, “the measure of damages to the
remainder is the difference between its fair market value before the acquisition and its fair
market value after the acquisition.” Department of Transportation, 260 Ill. App. 3d at 498; see
also Department of Public Works & Buildings v. Hubbard, 363 Ill. 99, 101-02 (1936). Thus,
“[t]he cost of rehabilitation may be considered only in determining a reduction of the market
value as of the whole” (Department of Transportation, 260 Ill. App. 3d at 495 (citing City of
Freeport v. Fullerton Lumber Co., 98 Ill. App. 3d 218, 223 (1981)); see also Department of
Transportation v. Galley, 12 Ill. App. 3d 1072, 1077-78 (1973)), and, while “an expert valuation
witness may be permitted to state the factors considered in forming an opinion of the value of the
remainder, including the costs of rehabilitation, [the expert] may not testify as to the specific
figures applied for those costs” (Department of Transportation, 260 Ill. App. 3d at 495).
- 36 -
2014 IL App (2d) 130813
¶ 69 In this case, Magdziarz, plaintiff’s valuation witness, testified that the fair cash value of
the permanent and temporary construction easements is $1,350. Magdziarz explained that in
calculating these figures he assessed the value of the property as a whole both before and after
the impressment of the permanent easement. Magdziarz testified that the fair cash value of the
entire property before the impressment of the permanent easement is $650,000, while the fair
cash value of the property after the impressment of the permanent easement would be $648,800,
or a reduction of $1,200. Magdziarz further testified that the fair cash value of the temporary
construction easement would be $150. Defendant cross-examined Magdziarz but did not ask any
questions about whether the costs of rehabilitation were factored into his valuations. Instead,
defendant sought to introduce the testimony of Bennett, a resident in the condominium complex
and a former officer in defendant’s homeowner’s association.
¶ 70 In particular, Bennett was called to testify regarding a landscape architect’s estimate to
restore defendant’s property after installation of the trunk line. Plaintiff objected to Bennett’s
testimony on the grounds that it was (1) irrelevant to the issue of the easements’ value and (2)
hearsay. We conclude that the trial court properly sustained plaintiff’s objection on both
grounds. First, as the authorities discussed above demonstrate, the evidence defendant sought to
introduce via Bennett was irrelevant because it involved rehabilitation costs as a separate
element of damages.
¶ 71 Furthermore, Bennett’s testimony was clearly hearsay. Hearsay is defined as “a
statement, other than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801(c) (eff. Jan. 1, 2011). For
purposes of the foregoing definition, a “statement” is “an oral or written assertion” or “nonverbal
conduct of a person, if it is intended by the person as an assertion.” Ill. R. Evid. 801(a) (eff. Jan.
- 37 -
2014 IL App (2d) 130813
1, 2011). Hearsay statements are inadmissible unless they fall within an exception to the rule
against hearsay. Ill. Rs. Evid. 802 to 804 (eff. Jan. 1, 2011); People v. Temple, 2014 IL App
(1st) 111653, ¶ 58. In this case, defendant sought to admit by way of Bennett’s testimony an
out-of-court statement—the landscaper’s written estimate—for the truth of the matter asserted—
the cost of relandscaping defendant’s property. Moreover, defendant does not assert that an
exception to the rule against hearsay applies in this case. Instead, relying on City of Freeport v.
Fullerton Lumber Co., 98 Ill. App. 3d 218 (1981), defendant insists that an owner may testify
regarding damage to property. Defendant cites the following language from City of Freeport: “It
has been repeatedly held that the owner of property, if at all qualified, may testify as to value.”
(Emphasis added.) City of Freeport, 98 Ill. App. 3d at 222. We find defendant’s reliance on this
passage misplaced, as defendant does not indicate how Bennett is qualified to testify regarding
landscaping costs.
¶ 72 III. CONCLUSION
¶ 73 For the reasons set forth above, we affirm the judgment of the circuit court of Winnebago
County.
¶ 74 Affirmed.
- 38 -