IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT - CHANCERY DIVISION

The Town of Cicero, a Illinois municipal corporation on its own behalf, and The Town of Cicero, on behalf of its residents and property owners,

PlaintiffslPetitioners,

) ) ) ) ) ) ) ) ) ) ) )

v.

Metropolitan Water Reclamation District of Greater Chicago, a looal public entity,

Defendant/Respondent.

COMPLAINT FOR EQUITABLE AND OTHER RELIEF

The Town of Cicero, an Illinois municipal corporation, on its own behalf and on behalf of

District of Greater Chicago ("MWRDGC") as follows:

its residents and property owners, by its attorneys, Del Galdo Law Group, LLC, brings thts ~g, "1~' :}_ <Tt action for Accountability, equitable relief and damages against Metropolitan Water Rec~~atio,f[:".';:::: .

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The Town of Cicero ("The Town") is an Illinois municipal corporation in Cook

I.

PARTIES

County, Illinois, within the geographical area controlled by and serviced by the Metropolitan

Water Reclamation District of Greater Chicago.

2. The Town and the residents and property owners of The Town, own and occupy

the affected teal property and improvements, that is all situated in Cook County, Illinois.

3. Metropolitan Water Reclamation District of Greater Chicago, is a local public

entity created by and governed by the Metropolitan Water Reclamation District Act, 70 ILCS

260511 et. seq.

II.

JURISDICTION

1. The parties are all located in Cook County, lIlinois.

2. The matters complained of all occurred in Cook County, Illinois.

3. Plaintiffs have no remedy at law for the equitable relief sought herein.

4. Plaintiffs request for damages, attorney fees, and costs is made pursuant to 70

ILCS 2605119, over which this Court has jurisdiction to proceed.

III.

RELEVANT FACTS

1. The Metropolitan Water Reclamation District Act, 70 ILCS 2605/1 et. seq. (the

"Ace) provides for the creation and operation of the MWRDGC, within the territorial limits of

Cook County, Illinois;

2. The Act at Section 3 recites that because MWRDGC's services are important to

the public and are in great need by the public, such services must be performed in as near a non-

partisan character as possible;

3. MWRDGC receives money to fund its construction, maintenance, operation and

control, from the taxpayers of The Town as well as from the taxpayers of other communities

within Cook County, Illinois, through the collection of real estate taxes by the County, pursuant

to Section 12 of the Act;

4. The Act at Section 7 gives MWRDGC the duty and authority to provide for the

drainage of its district of both surface water and sewage, by laying out, establishing, constructing

and maintaining one or more channels, drains, ditches and outlets for carrying off and disposing

of the drainage (including the sewage), together with such adjuncts and additions thereto as may

be necessary or properto cause such channels or outlets to accomplish the end for which they are

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designed in a satisfactory manner. Sewage is defined as "water-carried human wastes or a combination of water-carried wastes from residences, buildings, businesses, industrial establishments, institutions, or other places together with any ground, surface, storm, or other water that may be present," 70ILCS260517a;

5; Pursuant to Section 7d of the Act, MWRDGC has extended its drains, ditches and

other structures to connect with the sewage system of The Town to receive and dispose of all sewage collected within The Town;

6. The Act at Section7h directs that stormwater management in Cook County shall

be under the exclusive general supervision of MWRDGC and that MWRDGC shall plan, manage, implement, and finance activities relating to stormwater management in Cook County. Stormwater management is defined as including, without limitation, the management of floods and floodwaters;

7. Section 7h(d) ·of the Act authorizes MWRDGC to prescribe reasonable rules and

regulations for floodplain and stormwater management and for governing the location, width, course, and release rate of all stormwater runoff channels, streams and basins in CookCounty;

8. Section 19 of the Act makes MWRDGC liable for all damages to real estate

within or without its district which shall be overflowed or otherwise damaged by reason of construction, enlargement or use of any channel, ditch" drain, outlet or other improvement under the provisions of this Act, and" said Section prescribes thatactions to recover such damages may be brought in the County where such real estate is situated or in the County where the district is located;

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9. MWRDGC has constructed, maintains) manages, regulates and controls a system

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to drain The Town's sewage and carry it to facilities for treatment that are also owned, managed

and controlled by it;

10. MWRDGC has also constructed the Tunnel and Reservoir Plan (,'TARP") or

"Deep Tunnel," to, among other goals, "provide an outlet for floodwaters to reduce street and

basement sewage backup flooding";

11. T ARP consists of a system of treatment plants, canals, reservoirs? pumping

stations, locks, rivers, tunnels (Deep Tunnel) .. connecting structures, and flow control devices to

collect, store, treat. and/or release sewage in MWRDGC's territory;

12. In addition to MWRDGC's systems that physically handle and control the flow of

sewage, MWRDGC also maintains" controls and operates a system to anticipate heavy rainfall So

it can prepare for the safe and expeditious drainage of sewage and prevent street and basement

sewage backup flooding;

13. On or about June 23, 2010, Cook County experienced heavy rainfall that

predictably required MWRDGC to use its systems and devices to assist The Town's systems and

devices to dispose of all sewage collected during short time periods in The Town;

14. On or about June 23, 2010, the rainfall began to build up on streets and ground

surfaces in The Town, after The Town's sewage system reached maximum capacity. Then,

backup flooding occurred in the streets, basements and properties in The Town, thereby allowing

water-carried human and other wastes to contaminate The Town, create a serious dangerous

condition in The Town, and result in vast property damage in The Town;

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15. However, shortly after the streets, basements and properties in The Town began to

discharge and overflow with sewage, the flow reversed down into the drainage system with such force that it appeared like a whirlpool of water going down a bathtub drain;

16. Then again, on or about July 24, 2010 the same conditions were experienced in

The Town, but to a greater degree. After heavy rainfall, backup flooding occurred in the streets, basements and properties. The sewer openings began to spew sewage into The Town causing serious widespread damage to property, and dangerous health and safety conditions. Then, the flow reversed and all was drained away like whirlpools of water going down a.bathtub drain;

17. MWRDGC failed to use its systems devices and historical data to adequately

anticipate the need to open its devices to receive and dispose of all sewage collected within The Town to avoid the predictable occurrence of street and basement sewage backup flooding;

18. MWRDGC failed to use its systems and devices, before sewage began to backup

and cause flooding, to open its devices to receive and dispose of all sewage collected within The Town to avoid the occurrence of street and basement sewage backup flooding;

19. During these months, June and July, 2010, MWRDGC opened the locks in

Wilmette, Illinois to release sewage from its storage facilities to avoid and/or reduce street and basement sewage backup flooding on the north shore of the Chicagoland area. However, it did not open the locks in Lockport, Illinois or elsewhere to release sewage from its storage facilities, to avoid and/or reduce street and basement backup flooding in the western suburbs of the Chicagoland area;

20. On July 24, 2010, Cicero Town President Larry Dominick and Town officials

declared The Town a disaster area due to the sewage backup flooding;

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21. The Town then set up a data collection effort to make damage assessments and

estimates to submit to the Federal Emergency Management Agency ("FEMA"j in favor of it declaring The Town a disaster area. Affected residents and property owners were requested to come and fill out damage assessment forms. In a forty eight (48) hour period of time nearly six thousand (6,000) persons came and filled out the forms, estimating over Forty Two Million U. S. Dollars ($42,000,000.00) in sewage backup flooding damages suffered by the private residents and! property owners of The Town;

22. Additionally, millions of dollars of damage from the sewage backup flooding was

suffered and incurred by The Town's property and the property related to governmental units located in The Town;

23. During the periods of time leading up to and during the occurrences of heavy

rainfall, The Town, its residents and property owners desperately tried to contact MWRDGC for help, with no success. Only a general complaint number was available to call, and when persons were able to get connected by calling the number, no help was offered, and, the telephone representatives of MWRDGC openly blamed The Town for the Sewage backup flooding. The Town's government officials do not have a channel of communication to use to contact MWRDGC to get its emergency efforts to begin before sewage backup flooding begins;

24. It is unreasonable for MWRDGC to wait until after sewage backup flooding

begins to use its controls and devices to empty existing storage to accommodate the predictable increase. of sewage into the system, including opening locks and other devices that control the flow and that provide an outlet for floodwaters to prevent street and basement sewage backup flooding.

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IV.

CAUSES OF ACTION

COUNT I

ACTION FOR ACCOUNTABILITY

1-24. Plaintiffs restate and reallege the above paragraphs 1 though 24 of the Relevant

Facts as and for paragraphs 1 through 24 of this Count 1;

25. No adequate remedy exists at law to compel Defendant to provide Plaintiffs with

the following information:

a. What devices does Defendant have that in any fashion controls or could control

the flow of sewage collected in and about The Town;

b. What devices does Defendant have that in any fashion controls or could control

the flow of sewage out .of The Town's sewage system into Defendant's system

and devices;

c. What rules and regulations govern Defendant's use of its system and devices to

control the flow of sewage out of The Town's sewage system into Defendant's

system and devices;

d. How does Defendant anticipate the occurrence of heavy rainfall;

e. What historical data does Defendant collect regarding past occurrences of heavy

rainfall;

f. What has Defendant done during past occurrences of heavy rainfall to control the

flow of sewage out of The Town's sewage system into Defendant's system and

devices;

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g. What did Defendant do in June, 2009, to control the flow of sewage out of The Town's sewage system into Defendant's system and devices when heavy rainfall was experienced to prevent street and basement backup sewage flooding;

h. What did Defendant do in June, 2010, to control the flow of sewage out of The Town's sewage system into Defendant's system and devices when heavy rainfall was experienced to prevent street and basement backup sewage flooding;

1. What did Defendant do in July, 2010, to control the flow of sewage out of The Town's sewage system into Defendant's system and devices when heavy rainfall was experienced to prevent street and basement backup sewage flooding;

26. No adequate remedy exists at law to compel Defendant to facilitate and be available for communications with The Town's water department officials, to inform The Town when heavy rainfall is anticipated, and to interact with The Town so that Plaintiffs' and Defendant's systems can be coordinated in a fashion that prevents the occurrence of sewage backup flooding in the streets, ground surfaces and properties of The Town;

27. MWRDGC has a duty to Serve, account to, and adequately inform the taxpayers

who pay taxes shared by MWRDGC;

28. Plaintiffs have -been and will in the future be irreparably harmed by MWRDGC's

failure to inform them, failure to be accessible to them, failure to work cooperatively with them to anticipate heavy rainfall, and failure to cooperate and to act to drain The Town's sewage system and MWRDGC's sewage system prior to and during heavy rainfall so as to avoid sewage backup flooding in The Town;

29. The information sought herein about Defendant's rules, practices and procedures

are known only to Defendant and is not otherwise accessible to Plaintiffs;

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30. The information sought herein about Defendant's systems and devices are known

only to Defendant and is not otherwise accessible to Plaintiffs;

31. The information sought herein about data collected by Defendant concerrung

heavy rainfall is known only to Defendant and is not otherwise accessible to Plaintiffs;

WHEREFORE, Plaintiffs request that this Honorable Court of Equity rule in their favor

and against Defendant to compel Defendant to be Accountable to Plaintiffs, to cooperate with

The Town's water department officials as is set forth hereinabove, and to inform and account to

Plaintiffs asis set forth herein above.

COUNT II

ACTION FOR MANDATORY PERMANENT INmNCTION

1-31. Plaintiffs restate and reallege paragraphs 1-31 of Count I as and for paragraphs 1-

31 of this Count II.

32. Plaintiffs, as the owners and occupants of real property in The Town, have the

clear and ascertainable right to the continued use and enjoyment of their homes, businesses and

other real propertyfree from interference frombackup sewa~e flooding into their streets, ground

surfaces, basements and properties;

33. Plaintiffs' right to the use of their homes, businesses and other real property is in

need of protection from further backup sewage flooding caused by MWRDGC's failure to

expeditiously and properly anticipate heavy rainfall and promptly activate procedures for

handling excess storm water accumulation before the same is allowed to invade the Plaintiffs'

property;

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34. The interference with Plaintiffs' right to the use and enjoyment of their homes,

businesses and other teal property causes irreparable delay and interference with the Plaintiffs'

family and business plans and activities, causes great widespread damage to property, and causes

severe emotional distress and other harm;

35. No adequate remedy exists at law to protect Plaintiffs' from the delay,

interference and emotional distress that will continue to occur by MWROGC's continued failure,

to property anticipate heavy rainfall, and, implement and thereafterpromptly activate procedures

for handlingexcess.storm water accumulation before the same is allowed to invade the Plaintiffs'

property.

WHEREFORE; the Plaintiffs pray for injunctive relief permanently ordering MWRDGC

to properly anticipate heavy rainfall, and, to implement and thereafter promptly activated

procedures for handling excess storm water accumulation before the same is allowed to invade

the plaintiffs' property.

COUNT III

DAMAGES PURSUANT TO 70 ILCS 2605/19

1-24. Plaintiffs restate and reallege the above paragraphs 1 though 24 of the Relevant

Fa.cts as and for paragraphs 1 through24 of this Count III;

25. Section 190f the Act (70 ILC$ 2605119) provides, in relevant part, that "[e Ivery

sanitary district shall be liable for all damages to real estate within or without such district which

shall be overflowed or otherwise damaged by reason of construction, enlargement or use of any

channel, ditch, drain, outlet or other improvement underthe provisions of this act; ... "

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26. The drains, sewers, tunnels and other components of the waste and storm water

management system (the "System") serving The Town are under the control ofMWRDGC;

27. MWROGC's use of the System caused .sever overflow resulting in water

accumulating in the streets of The Town and in the homes, businesses and other teal property

belonging to The Town and its residents and business owners on multiple occasions in June and

.Tuly 2010;

28. The severe overflow caused by MWRDGC's use of the System caused extensive

damage to the real and personal property belonging to the residents and business owners of The

Town, as well as to the real and personal property belonging to The Town;

29. The damage to the personal and real property belonging to the residents and

business owners of The Town, as well as to the real and personal property belonging to The

Town is estimated to have exceeded Forty Two Million U.S. Dollars ($42,000,000.00).

30. A Plaintiff need not prove negligence to recover under Section 19. Pineschi v.

Rock River Water Reclamation District, 346 Ill.App.3d 719, 725 (2nd Dist. 2004).

WHEREFORE, The Town, for itself and on behalf of its residents and business owners

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prays for damages in an amount in excess of Forty Two Million U.S. Dollars ($42,0.00,000.00)

plus attorneys' fees and court costs and provided under Section 19 and such other relief as the

Court shall grant.

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By:

George S. Spataro, Esq. K. Austin Zimmer, Esq.

DEL GALDO LAW GROUP, LLC (#44047) A ttorneys for the Plaintiffs

1441 S. Harlem Avenue

Berwyn, IL 60402

Tel: (708) 222-7000

Fax: (708) 222-7001

Respectfully submitted,

OUP, LLC

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