Municipality Not Responsible For Maintaining Subdivision Pond Absent Unequivocal Evidence Of Dedication

This featured column discusses the Second District Appellate Court decision in Reich v. City of Lake Forest, affirming summary judgment in favor of the defendant, determining that the developer did not intend to dedicate a pond to the City and there was no unequivocal evidence that the City has accepted the pond easement. Reich v. City of Lake Forest, 2022 IL App (2d) 210515 (Ill. App. 2022).

In this case, Plaintiffs were residents in a subdivision in Lake Forest. There is a pond located on the back portion of Plaintiffs’ property which was created as a stormwater detention pond during the development of the subdivision. When the developer initially submitted the proposed plan to build the subdivision to the City, the City identified insufficient sanitary sewer service and drainage as issues that the developer would need to resolve in order for the plan to be approved. The developer worked with the City engineer in order to add sufficient drainage to the proposed plan and develop a proper stormwater management plan. The plan added two detention ponds, one of which is at issue in this case. The plan was approved by City Council and recorded with the Lake County Recorder of Deeds.

The subdivision plat included a “Storm Drainage and Detention Easement” which runs through Plaintiffs’ property. The easement is entirely covered by the pond. Nothing on the plat indicates that the pond was dedicated to the City or for public use. However, different parts of the plat include a road that with language that the road is specifically “dedicated for road purposes”.

The developer was also required by the City to include certain public improvements with the development including sidewalks, curbs, water mains and storm sewers within the development, all of which were accepted by the City. The pond was not listed as a public improvement to be dedicated to the City. However, the City did accept a storm sewer that ran under the detention easement as a public improvement for stormwater management and had performed maintenance on the storm sewer.

The two ponds located within the subdivision hold most of the stormwater run-off created within the subdivision, including Plaintiffs’ properties. The City does not perform maintenance on the ponds and has never performed maintenance on the ponds. The Plaintiffs’ contend that the City should be responsible for maintaining the pond located on their property and filed a declaratory judgment action alleging that a common-law dedication should require the City to maintain the pond. The trial court held that there was no unequivocal evidence of donative intent by the developer to dedicate the pond or the pond easement to the City, and there was no unequivocal evidence that the City had ever accepted the pond easement. Id. Plaintiffs filed an appeal arguing that there was unequivocal evidence of an intended dedication of the pond to the City. Id.

Dedication Of Property

A dedication can be a statutory dedication or a common-law dedication. A statutory dedication is created by the recording of a plat while a common-law dedication is shown by the grantor’s actions. Kirnbauer v. Cook County Forest Preserve District, 215 Ill. App. 3d 1013, 1020 (1991). In Reich, the Plaintiffs claim that the pond in question was transferred to the City through a common-law dedication.

A common-law dedication must include:

(1) an intention to dedicate the property for public use;

(2) acceptance by the public; and

(3) unequivocal evidence of the first two elements.

Bigelow v. City of Rolling Meadows, 372 Ill. App. 3d 60, 67 (2007).

The intent to dedicate “may be manifested by a formal dedication or by acts of the donor from which the intent may be so fairly presumed as to equitably estop the donor from denying a donative intent.” Limestone Development Corp. v. Village of Lemont, 284 Ill. App. 3d 848, 858-59 (1996). “Proof of any act by the dedicator that evidences an intention to dedicate must be clear, unequivocal, and unambiguous.” Id.

Appellate Court Looks To Subdivision Plat And Agreement

As Evidence Of Developer’s Intent

First, the subdivision plat does not reference any dedication of the pond for public use. Whereas, certain roadways and other improvements are specifically dedicated for public use within the plat. Language on the plat clearly and unequivocally states that a public right of way running through the division was “hereby dedicated for road purposes”. Reich, 2022 IL App (2d) 210515. Since the developer did not include specific language dedicating the pond, there is a strong presumption that the developer did not intend to dedicate the pond for public use.

Additionally, upon review of the subdivision agreement, there is no reference to the pond. The agreement makes reference to 12 other improvements required by the City including sewers, sidewalks, curbs and streetlights, all of which would be accepted by the City. The Appellate Court discussed the doctrine of espressio unius est exclusion alterius (the mention of one thing excludes another) to determine that the agreement’s omission of any reference to the pond indicates that it was not contemplated as an improvement that the developer would make and then dedicate to the City. Id. See West Bend Mutual Insurance Co. v. DJW-Ridgeway Building Consultants, Inc., 2015 IL App (2d) 140441.

Plaintiff argued that under the cases of Application of Cook County Collector and Ex Officio County Treasurer of Cook County (Musikantow v. Village of South Holland), 44 Ill. App. 3d 327, 330 (1976) and McDermott v. Metropolitan Sanitary District, 240 Ill. App. 3d 1, 21-22 (1992) that donative intent can exist even without specific markings on a plat. Reich, 2022 IL App (2d) 210515. The Appellate Court agreed that such intent may exist absent designation on a plat. However, the Appellate Court distinguished the above cases as cases in which there was other evidence of donative intent offered. In Musikantov, testimony directly from the developer was offered to affirm his donative intent even though he did not identify it on the plat. In Reich, the Plaintiffs failed to offer any such testimony from the developer or any representative from the City to establish such intent.

The Appellate Court affirmed the ruling of the trial court, finding that there was not unequivocal evidence of the developer’s intent to dedicate the pond to the City. If anything, Plaintiffs’ use of the term “must have intended” was telling that there was a lack of evidence that the pond was intended to be dedicated for public use. Absent any testimony to the contrary, Plaintiffs failed to establish unequivocal intent of the developer to dedicate such land. Accordingly, the City was not found to be responsible for maintenance of the ponds within the subdivision.