In this featured column, we discuss the ruling of the United States District Court for the Southern District of Illinois in Bennett v. City of Centreville, et al, involving an alleged taking under 42 U.S.C. Section 1983 in violation of the United States Constitution’s Fifth Amendment Takings Clause and the Takings Clause of the Illinois Constitution, Article I, Section 15. Bennett v. City of Centreville, et al, 20-CV-530 (S.D. Ill. 2020).
In this case, Plaintiffs all own homes in the Township of Centreville or City of Centreville. Plaintiffs allege that Defendants have been indifferent to the insufficient stormwater system that has caused stormwater and sewage backup in Plaintiffs’ homes and yards. Id. Such backups are alleged to not only have caused damage, but the backups also prevented Plaintiffs from using parts of their properties. Id.
Preliminary injunction Requirements
A preliminary injunction requires the seeking party to show that:
(1) absent preliminary injunctive relief, they will suffer irreparable harm in the interim prior to a final resolution;
(2) there is no adequate remedy at law; and
(3) they have a reasonable likelihood of success on the merits.
Turnell v. CentiMark Corp., 796 F.3d 656, 662 (7th Cir. 2015).
If a party can establish these factors, the court will then apply a “sliding scale” to balance the harms to both parties, taking into account the public interest. Id.
Likelihood of Success on the Merits
The purpose of the Takings Clause is to prevent governmental entities from requiring certain parties to suffer public burdens which “should be borne by the public as a whole”. "Armstrong v. United States, 364 U.S. 40, 49 (1960). When the government takes physical possession of a property for a public purpose, it must compensate the property owner. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 322 (2002). The government induced flooding of a property has been found to be a taking of which property owners are entitled to compensation. Arkansas Game & Fish Comm'n v. United States, 568 U.S. 23, 31-32 (2012). Courts have looked to the individual facts of each case to determine whether a property owner’s use and enjoyment of a property is impacted by the temporary invasion of water on a property. Pineschi v. Rock River Water Reclamation Dist., 805 N.E.2d 1241, 1248 (Ill. App. Ct. 2004). In Pineschi, the Appellate Court found Plaintiff’s evacuation of the property for several days due to a sewage backup was a compensable taking. Id.
The Factors that the court will look to in determining whether there was a taking include:
a. the time and duration of the flooding;
b. whether the invasion of the property was intentional or whether it was a foreseeable result of an authorized government action; and
c. the character of the land and the owner's reasonable investment-backed expectations regarding the land's use.
Arkansas Game & Fish Comm'n, 568 U.S. at 38-39.
Taking these factors into account, the court found that Plaintiffs have a sufficient likelihood of success on their takings claim. Plaintiffs’ properties have been flooded over substantial periods of time and have impaired the enjoyment of their properties. While much of the case law involved cases in which the governmental entity caused the flooding, not mere inaction by the entity, the court did not find this to be a detrimental factor to prevent a likelihood of success Plaintiffs’ claims.
Defendant argued that the statute of limitations and the public duty rule barred Plaintiffs’ claims, preventing a likelihood of success on the merits. However, the court was not persuaded by either defense. The flooding was ongoing and Plaintiff could argue that there was a continuing violation. Additionally, the Illinois Supreme Court has abolished the public duty rule.
No Adequate Remedy at Law
Takings claims seek compensation for the property taken. They do not prohibit the government from taking the property, but they do require that the property owner be adequately compensated. Illinois courts have found an injunction to be appropriate in takings cases. LaSalle Nat. Bank & Tr. Co. v. City of Chi., 470 N.E.2d 1239, 1247 (Ill. App. Ct. 1984). In this case, Plaintiffs do not want the government to take their property, they just want to stop the flooding from impacting their properties. Bennett v. City of Centreville (S.D. Ill. 2020). However, money damages would be an adequate remedy at law to address their takings claims. Id.
Plaintiffs cite cases in which monetary compensation was sought including the following:
· Arkansas Game & Fish Comm'n v. United States, 568 U.S. 23, 29 (2012) ("[T]he Commission filed the instant lawsuit against the United States, claiming that the temporary deviations from the Manual constituted a taking of property that entitled the Commission to compensation.");
· Hampton v. Metro. Water Reclamation Dist. of Greater Chi., 57 N.E.3d 1229, 1239 (Ill. 2016) ("[P]laintiffs state that they are seeking compensatory damages for the value of lost possessions and the cost of repairing their homes.");
· Pineschi v. Rock River Water Reclamation Dist., 805 N.E.2d 1241, 1244 (Ill. App. Ct. 2004) ("Counts V and VI alleged a taking of plaintiff's property and sought compensation under, respectively, the fifth amendment to the federal constitution. . . and . . . the state constitution.");
· Tzakis v. Berger Excavating Contractors, (Ill. App. Ct. 2019) (no injunctive relief sought). Bennett v. City of Centreville (S.D. Ill. 2020)
The cases Plaintiffs cite involve cases in which injunctive relief was a potential remedy for asserted tort claims. Id. However, in this case, Plaintiffs have not filed a tort claim or a claim in which injunctive relief is available. Id. It was the court’s opinion that Plaintiffs failed to establish that there is no adequate remedy at law. Id. Given that Plaintiffs’ claims fail under the adequate remedy at law factor, the court’s analysis ended there. Therefore, the court denied Plaintiffs’ preliminary injunction.
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