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Illinois Supreme Court Rules that Temporary Flooding Can be a Taking Under the Illinois Constitution

In an recent opinion, Hampton v. Metropolitan Water Reclamation District, 2016 IL119861 the Illinois Supreme Court held that property owners in Bellwood, Hillside and Westchester could pursue claims against the Metropolitan Water Reclamation District under the takings clause of the Illinois constitution for the temporary flooding of their properties and residences they claimed could be traced to the District's storm water management decisions. In 1948, the Illinois Supreme Court ruled in People ex rel Pratt v. Rosenfield, 399 Ill. 247 (1948) that temporary flooding was not a taking. However, in 2012 the United States Supreme Court in Arkansas Game & Fish Comm'n vs United States, 133 S. Ct. 511 (2012) concluded that temporary flooding can constitute a taking under the Federal constitution's taking clause. The Cook County Circuit denied the District's Motion to Dismiss the Illinois Constitution takings claim and asked the reviewing courts to decide whether the US Supreme Court's decision in the Arkansas Game case effectively overrules the 1948 decision in Rosenfield.
The Illinois Supreme Court held that temporary flooding can constitute a taking under the Illinois constitution also but also found that the Plaintiff property owners had not alleged enough facts in their complaint to support such a claim. Hamptoncontains a fairly comprehensive outline of the factors to be considered in deciding whether a property owner has alleged a taking resulting from temporary flooding. The court found the factors discussed by the US Supreme Court in theArkansas Game decision helpful and clarified that a "taking" is defined the same way under both Federal and Illinois law but also noted that "the Illinois takings clause reaches beyond the scope of the federal takings clause and provides a remedy for owners whose property is damaged by some government action." Accordingly, practitioners and their clients who have temporary flooding claims should carefully review both the Arkansas Game and Hampton for guidance in pleading a takings claim under either the Federal Constitution or the Illinois Constitution.
Peter M. Storm
Cooper Storm & Piscopo

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