Real Estate & Property Law

Burying The Lead: No Taking When City's Water Pipe Replacement Program Alleged To Result In More Danger To Owners' Properties

By Robert Thomas (inversecondemnation.com)

Here's the latest in a case we've been following.

In Berry v. City of Chicago, No. 124999 (Sep. 24, 2020), the Illinois Supreme Court avoided the analysis that split the court of appeals, and upheld the dismissal of a very "torty" inverse condemnation claim. The plaintiffs alleged that the City of Chicago's program to replace old water meters, water mains, and lead pipes had taken their property because it made the service lines "more dangerous" by using copper and galvanized iron, which leads the lead pipes to corrode (the lede is that copper leads lead pipes to corrode). In addition to tort damages, the plaintiffs sought compensation for the taking. 

No deal, held the court, and its ruling is pretty straightforward. The court didn't really see the arguments the same way as the court of appeals, which split on the question of how the "public" is defined for special benefits, and instead held that this wasn't a taking at all:

In this case, plaintiffs have alleged only that the City?s replacement of water mains and meters has made the proposed class members? property ?more dangerous.? The concept of ?dangerousness? is not susceptible to objective measurement and, thus, cannot by itself be damage under the Illinois takings clause. Hubbard, 363 Ill. at 104; Ring, 312 Ill. at 552. Further, there are no allegations in plaintiffs? complaint that any property has depreciated in value because of any increased danger caused by the City?s work and no allegation that depreciation could be shown across the properties of the entire proposed class.

Plaintiffs? complaint states that they are seeking to have all of the proposed class members? service lines replaced, suggesting, perhaps, that the service lines have all been damaged to the point of being worthless. However, plaintiffs do not, in fact, allege that all the service lines owned by the proposed class members have been rendered completely unusable by the City?s actions. Indeed, the complaint notes that plaintiff Berry continues to use City water provided through his service line. Nor do plaintiffs allege that the service lines have been made completely unusable because they are unfit for human use as a matter of law; there are no allegations in the complaint that any federal or state regulatory rule prohibits the repairs undertaken by the City in this case. In short, plaintiffs? complaint contains no allegation of any measurable, pecuniary loss caused by the City?s repair work. Accordingly, ?no action will lie? (Ring, 312 Ill. at 552) for inverse condemnation. The circuit court therefore properly dismissed count II.

Slip op. at 14-15. No Lucas wipeout, and apparently no claim of a physical invasion or occupation.

Berry v. City of Chicago, No. 124999 (Ill. Sep. 24, 2020)

Full post as published by inversecondemnation on October 01, 2020 (boomark / email).