Rock River Water Reclamation District v. The Sanctuary Condominiums of Rock Cut

Illinois Official Reports

Appellate Court

Rock River Water Reclamation District v. The Sanctuary Condominiums of Rock Cut,

2014 IL App (2d) 130813

Appellate Court ROCK RIVER WATER RECLAMATION DISTRICT, Plaintiff-

Caption Appellee, v. THE SANCTUARY CONDOMINIUMS OF ROCK

CUT, Defendants-Appellants (Unknown Owners, Defendants).

District & No. Second District

Docket No. 2-13-0813

Filed December 11, 2014

Held In an action arising from plaintiff water reclamation district’s proposal

(Note: This syllabus to construct a sanitary sewer extension for a residential subdivision

constitutes no part of the that would require a “trunk line” to be installed beneath defendant

opinion of the court but condominiums pursuant to a permanent easement and a temporary

has been prepared by the construction easement, the trial court, after dismissing plaintiff’s first

Reporter of Decisions complaint for condemnation, properly denied defendant’s motion to

for the convenience of dismiss plaintiff’s second condemnation action on grounds of

the reader.) res judicata and improper notice, and then denied defendant’s traverse

and motion to dismiss after a bench trial, since plaintiff’s complaint

set forth all of the elements necessary for its exercise of the right of

condemnation and defendant failed to introduce evidence that plaintiff

abused its discretion.

Decision Under Appeal from the Circuit Court of Winnebago County, No. 12-ED-2;

Review the Hon. J. Edward Prochaska, Judge, presiding.

Judgment Affirmed.

Counsel on Richard B. Kirk, of Schirger Law Offices, LLC, of Rockford, for

Appeal appellants.

Joshua G. Vincent and Thomas J. Lester, both of Hinshaw &

Culbertson LLP, of Chicago, for appellee.

Panel 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 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.

-2-

¶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

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. 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

-3-

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 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 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

-4-

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

(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

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.

-5-

¶ 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 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 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.

-6-

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. The

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

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 a 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 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

-7-

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, 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 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

-8-

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. The Sanctuary Condominiums of Rock Cut,

2014 IL App (2d) 131081-U.

¶ 26 II. ANALYSIS

¶ 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

-9-

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 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)).

- 10 -

¶ 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 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.

¶ 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 [section] 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

- 11 -

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 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 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

- 12 -

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 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 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

- 13 -

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.

¶ 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 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

- 14 -

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

¶ 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 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:

1

Defendant also argues that res judicata bars the second condemnation action because 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.

- 15 -

“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) 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 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

- 16 -

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

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 5/9-2-34 (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 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

- 17 -

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 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 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.

- 18 -

¶ 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. 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 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.

- 19 -

¶ 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 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. R. 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 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

- 20 -

not testify as to the specific figures applied for those costs” (Department of Transportation,

260 Ill. App. 3d at 495).

¶ 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. 1, 2011). Hearsay statements are inadmissible unless they fall

within an exception to the rule against hearsay. Ill. R. 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.

- 21 -