LETTER FROM THE PLUMBER
Baker v. City of Belleville
— 111. App. 3rd —, — N.E.2d —,
— 111. Dec. —, (111. App. 5 Dist., 1987).

Dear City Council:

I am writing you this letter to describe the problems that have been encountered by Galen and Agnes Baker in attempting to get their lateral sewer line, which is connected to your system, repaired. I am taking this opportunity to explain this situation to you in great detail so that this problem will not occur again and because without some explanation, you would not understand the attached enclosure.

Mr. and Mrs. Baker own a home on West Main Street in the City. The service to the sanitary sewer system is provided to their property by a lateral line that serves exclusively their home. This line runs beneath West Main Street to the Baker's lot where it then connects to the plumbing in the Baker's home. In February of 1985, a problem developed with sewer service to the Baker's home. The Bakers approached you and you granted them a permit to dig under the street to determine what was causing the problem, if there was damage to the line and, if necessary, repair it. When the Bakers asked me to investigate the situation, I discovered that certain tiles in the lateral were broken and that the line was obstructed under the street near the curb-line of the Baker's lot. The Bakers then asked that you repair the broken tiles and clear the obstruction under the street, but you refused to do so. I was then retained to perform the repairs, remove the obstruction, and restore the street to its original condition.

When I completed my work, I presented my statement of charges to the Bakers who in turn presented it to you for payment. You refused to pay the invoice and the Bakers were forced to file suit. In May of 1986, the Circuit Court of St. Clair County granted a Motion for Summary Judgment in favor of the property owners and against you. You moved to have the judgment vacated and, when it was not, you appealed to the Fifth District Appellate Court. On October 7, 1987, the Appellate Court, only two weeks after hearing oral arguments, isssued its opinion ruling against you once again and effectively, ordered you to pay for the repairs.

I don't know if you intend to appeal this case to the Illinois Supreme Court, however, I hope that this matter can be rapidly resolved. I know that the Bakers are pleased that their sewer is now working, but I would like to be paid for my services.

Your prompt attention to this matter is greatly appreciated.

Sincerely,

The Plumber

P.S. My statement of charges in the amount of $6,119 is enclosed.

This mythical letter from "the Plumber" to the City Council of the City of Belleville could easily be real. As the plumber describes, the Fifth District Appellate Court has ruled against the City of Belleville in this action in a case that should be noted by every Illinois municipality. As a result of this opinion, any municipality operating a sewer or water system should review its ordinance and consider whether or not they could be next to get the letter from "the Plumber".

The plumber does a particularly good job of describing facts that led to the Circuit Court finding and, ultimately, the Appellate Court decision. In the Circuit Court, the City of Belleville submitted affidavits of the City Engineer and the Superintendent of Sewers which indicated that the sewer lateral line at issue was "not owned, maintained or controlled" by the City. Additionally, there was no information available as to who had paid for the original construction of the line, no documentary evidence of title or ownership of the line

November 1987 / Illinois Municipal Review / Page 19

and no known record of any easement having been granted to the property owners for maintaining the line under the street. Finally, it did not appear that either party had any knowledge of previous repairs or maintenance to the line.

On appeal, the City unsuccessfully argued two positions in attempting to obtain a reversal of the judgment of the Circuit Court. First, Belleville argued that the property owners had exclusive use of the lateral line and therefore they should pay for its repair. Second, the Bakers were under a duty to repair the lateral line by virtue of a municipal ordinance.

The Appellate Court quickly disposes of the first argument of the City. Initially, Justice Harrison makes two points in rejecting the City's position. First, the Court points out that the cases cited by the City are "miscellaneous foreign authorities" which do not have any direct bearing on the factual situation before the Court. Second, the Court factually rejects the City's position.

"The City's idea, apparently, is that because only the property owners used this particular lateral line, only the property owner should pay for its repair. One problem with this approach is that it assumes' that the property owners and not the City were responsible for the damages which necessitated the repairs . . . All we know for certain is that the problems with the lateral line were found entirely under the City street. If anything, this would seem to suggest that those problems were actually attributable to the City, not the property owners."

The rejection of the second argument of the City clearly points out the need for municipalities to review existing ordinances to determine whether they may be in line to get the letter from the plumber. The second position taken by the City was that the City Sewer Ordinance placed the owners of the property under a duty to repair the line. The Court sums up its feelings about this argument in two words: "We disagree."

The opinion, citing Rosborough v. City of Moline (1961), 30 Ill. App. 2d 167,184,174 N.E.2d 16, acknowledges that a property owner may be required by ordinance to pay the expenses of repairing and maintaining a connection to a municipality such as a sewer lateral line when an applicable state statute authorizes the imposition of the cost by the municipality. Additionally, the Court notes that Paragraph 11-141-7 of Chapter 24, Ill. Rev. Stats., 1985 which governs rates and charges for the use of sewerage systems, provides the authority for the charge. The Court also finds that sewer lateral lines are expressly included in the definition of sewerage systems in the statute. Subsequent to its authority under Division 141, Belleville adopted a comprehensive sewer ordinance which was intended to provide a complete set of rules and regulations relative to the operation of the system. In the Court's opinion, it is an omission in this ordinance that results in the City being found liable for the cost of the repairs.

Consistent with many ordinances dealing with sewerage systems, the Belleville ordinance requires the cost of installation in connection to the system to be paid by the person desiring to be connected. However, the ordinance does not include any provision which requires the connecting party to pay for maintenance to the lateral and the connection subsequent to its installation. A paragraph of the ordinance specifying costs provides, in part:

"All costs and expense incidental to the installation and connection of the building sewers shall be borne by the owner. (Emphasis Added.)"

Clearly, this provision does not include the costs of maintenance for the sewer. In addition, no other provision of the ordinance imposes the duty to maintain on the owner.

The City argued, in response to the omission, that the liability to maintain the sewer can be "inferred from the text of the ordinance as a whole." The City claimed that the Court should construe the ordinance as requiring maintenance of the sewer from the fact that since the owner is required to pay for the cost of installation, connection and monthly usage charges, it follows that all costs were to be paid by the owner, including maintenance of the line.

In the Court's opinion, this omission is the downfall of Belleville's position. Countering the argument that

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payment of all charges should be inferred, the Court writes,

"The City may, for example, have intended that the periodic service charges be set at a level which would already take into account the projected additional costs of repair to the lateral lines." Continuing, the Court points out that if this were the intention of the City, then requiring the property owner to pay for repairs himself would, in effect, be requiring the owner to pay twice for the repair.

Additionally, the Court notes that the interpretation of the ordinance suggested by the City "ignores the proposition that statutory provisions are to be construed in accordance with the plain meaning of the legislature." Then, for a second time the Court tells the City, "If the City had intended to require property owners to pay for the cost of repairing lateral lines, it should have so specified in the ordinance... We cannot now rewrite the ordinance for the City."

Finally, the Court comments on the duty of the City in this matter. "Having undertaken to build and maintain a municipal sewer system, the City is under a duty to keep that system in good repair. (Emphasis Added.)" Once again, the Court repeats its statements that the absence of the proper language in the ordinance deprives the City of the authority to require property owners to pay for repairs.

Dont' let your City or Village get the letter from the plumber. If you intend for property owners to pay the cost of repairs to connections to a sewer system, then ask your municipal attorney to draft an amendment to the municipality's sewer ordinance that says just that! In fact, this opinion illustrates an even more basic point of municipal governance. In acting, the governing body should exercise care to insure that the ordinances adopted are specific enough that a court can clearly understand what the governing body intended. As this Court points out, it cannot re-write the laws of a municipality to do what the municipality failed to do.

ADDENDUM

At the recent IML conference, there was substantial response to the "Pit Bull" model ordinances that were available for distribution. In fact, there were insufficient copies of them. Additional copies have now been prepared and may be obtained by contacting the League office.

On the same subject, we have been advised that at least one municipality has chosen to enact the model ordinances which prohibits future pit bulls and regulates current ones. We would appreciate hearing from municipalities that choose to enact one of these ordinances or another form for regulating in order to be better able to advise municipalities facing this issue. Information which we receive which is of general interest on this issue will be published in this column from time to time. •

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