In Berry v. City of Chicago, No. 1-18-0871 (May 22, 2019), a divided Illinois court of appeals reversed the dismissal of an inverse condemnation claim, holding that even though the potential damage was widespread, the plaintiffs might be able to show that they incurred damage beyond those incurred by the general public.
The case should be interesting to both inverse and straight takings mavens because the court split on how the "public in general" is defined: does it mean, as the majority essentially concluded, everyone served by the alleged condemnor, or (as the dissenting justice concluded) just those who were subject to the action which is claimed to be a taking (or, in eminent domain terms, the project)?
The complaint alleged:
[T]he City embarked on a project to replace water mains and water meters throughout Chicago. In replacing the water mains and meters, however, plaintiffs allege that the City disturbed the polyphosphate interior coating of nearby lead pipes, causing its protection to be compromised. Furthermore, after replacing the water mains and meters, the City reconnected the service lines to certain property owners by performing a partial lead service line replacement, which can cause more lead to release into the water over time. Plaintiffs allege that, as a result, property owners with lead service lines in areas where a water main or meter was replaced have been, and continue to be, exposed to dangerous levels of lead in their water.
Slip op. at 21.
But not everyone served by the city's water department had their equipment partially replaced. Yes, "the number of potential plaintiffs could be large," the majority concluded, but because the public in general would not suffer the damage which the plaintiffs alleged, this wasn't like the situation in eminent domain where a project results in "precisely the same" injury to everyone. Slip op. at 22 ("These cases do not establish that damages suffered by numerous plaintiffs cannot be 'special damages.'").
"Rather," the majority concluded, the cases, "illustrate that the proper focus in determining special damages is ascertaining the type of damage suffered by the property owner due to the City’s actions and whether or not it is the same damage suffered by the general public." Id. The majority never expressly concluded that "the general public" means everyone who gets water from the city, but that's the logic of its conclusion.
The majority also rejected the city's argument that any damage which the plaintiffs might suffer are "necessarily incident to property ownership." Slip op. at 23 ("Plaintiffs here did not share in the general benefits of the replaced water mains where such replacement, they alleged, actually made their water more dangerous than that consumed by the general public.").
One justice dissented:
Although I agree that there is no law that states that inverse condemnation claims brought by numerous plaintiffs are not allowable, I believe the majority has ignored the fact that plaintiffs have failed to allege that they suffered any damages beyond that which would be experienced by a member of the general public whose water main or meter was replaced.
Slip op. at 48 (Connors, J., dissenting). Since 80% of the city has lead service lines, the plaintiffs did not allege they suffered damage any different than that of the general public. Slip op. at 51 ("i.e., 80% of the city’s population, would suffer if the city replaced a nearby water main") (emphasis added).
And that (the "if") is what resulted in the panel split: the majority saw the case as one differentiating between those who actually had their equipment replaced, while the dissenting justice viewed it as one involving those who might have.
More on the case here ("Appeals panel: Chicago residents can sue city for exposure to lead in city drinking water lines") from the Cook County Record.
Berry v. City of Chicago, No. 1-18-0871 (Ill. App. May 22, 2019)
