News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
of Peckar & Abramson, P.C. -- (312) 881-6309

Property Owners May Sue When Government’s Actions Temporarily Floods Property

The Illinois Supreme Court has ruled, in Hampton v. Metropolitan Water Reclamation District of Greater Chicago, that property owners may recover compensation under the Illinois Takings Clause when government action results in temporary flooding of their properties.  The Plaintiffs sued the MWRD, which is responsible for stormwater management, alleging that their properties were flooded and their sewers backed up when the MWRD took actions in the face of a heavy rainfall.

Those actions allegedly included: (1) closing the Lockport Lock and Dam floodgate to the Des Plaines River, which affected the water levels on Lower Salt Creek, Addison Creek, and the Lower Des Plaines River; (2) closing the locks to Lake Michigan at the Chicago Water Control Works, which affected the water level of the Lower Des Plaines River; (3) discharging excess stormwater runoff from the O’Hare South Detention Basin, the O’Hare – 3 – North Retention Pond, and Touhy Avenue Flood Control Reservoir Cells 1 and 2 into the surrounding waterways, which caused an increase in flow and volume in waterways upstream and downstream of Hillside, Bellwood, and Westchester; (4) pumping stormwater into Addison Creek, which caused an increase in flow and volume in Addison Creak; and (5) pumping stormwater from the Mayfair Reservoir into Lower Salt Creek, which caused an increase in flow and volume in Lower Salt Creek.

In 2012, the U.S. Supreme Court ruled in Arkansas Game & Fish Commission v. United States that temporary flooding can constitute a taking of property under the federal constitution.  The Illinois Constitution also has a takings clause, and it had been argued that temporary flooding could not be compensated under that clause.  In Hampton, the Illinois Supreme Court ruled that temporary flooding can constitute a taking under the Illinois constitution, because “what constitutes a taking is the same” under the federal and Illinois constitutions.

Therefore, under the federal and Illinois constitutions, property owners are compensated for government-induced temporary flooding when the flooding constitutes a “taking”, which occurs when “the flooding directly and immediately interferes with the owner’s enjoyment and use of the land.”  The relevant factors in making this determination are: “(1) the time and duration of the flooding, (2) whether the invasion of the property was intentional or whether it was a foreseeable result of an authorized government action, and (3) the character of the land and the owner’s reasonable investment-backed expectations regarding the land’s use.”

Even in circumstances where property is not “taken”, the Illinois constitution also provides compensation to owners whose property is damaged by government action.  The Hampton court ordered that the trial court should determine whether the Plaintiffs’ property was “taken” and/or “damaged” by the government’s actions in allegedly causing the temporary flooding.

Click here to review an electronic version of the Hampton decision.


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