2012 IL App (2d) 110192
Ill. App. Ct.2012Background
- T-Mobile leased land owned by Hugi for a wireless tower; Village annexed three unincorporated Lake County parcels (Nos. 1263-08, 1264-08, 1265-08) less than 60 acres each, using a water feature as the boundary; T-Mobile challenged the annexations as violating 7-1-13 by using a water feature not constituting a creek; the trial court held the water feature was not a creek and voided Nos. 1264-08 and 1265-08; the Village’s expert Burke contended the water feature functioned as a creek; T-Mobile’s expert Schaefer contended the feature was man-made and not a creek; the trial court found the water feature man-made and not a creek, and the trial court’s decision was summarized in a 35-page memorandum and order; the Lake County circuit court’s judgment was affirmed by the appellate court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What constitutes a creek under 7-1-13 | T-Mobile—creek boundary; water feature is a creek | Village—creek not required; boundary can be natural or man-made | Creek must be natural; water feature not a creek; boundaries invalidated Nos. 1264-08 and 1265-08 |
| Did the water feature originate as a natural creek or is it man-made | Schaefer’s view that feature is not a creek based on being man-made | Burke’s view that feature is a creek given historical presence and hydrology | Trial court’s finding that water feature is man-made and not natural is not against the weight of the evidence |
| Did trial court err in applying the term creek as a boundary boundary context | Plain meaning includes natural creek; 7-1-13 intended natural boundaries | Term could include varied boundaries; prior cases allowed different interpretations | Plain meaning requires creek to be natural; statute unambiguously natural |
| Whether the water feature’s 80-year existence makes it natural | Longstanding feature could be deemed natural | Persistence does not convert man-made feature into natural | Not natural; forfeiture issue addressed but court held man-made conclusion valid |
Key Cases Cited
- Nowak v. City of Country Club Hills, 2011 IL 111838 (2011 IL) (statutory construction and de novo review principles)
- Snuggery Pub, Inc. v. Village of Mount Prospect, 176 Ill.2d 119 (1988) (creek boundary definition; vagueness analysis; not applicable to man-made creek question)
- Wallis v. Country Mutual Insurance Co., 309 Ill.App.3d 566 (2000) (nature of a man-made watercourse as a natural watercourse for flood context)
- Alderson v. Fatlan, 231 Ill.2d 311 (2008) (artificial waters and riparian rights; relevance to natural vs artificial)