NO. 4-01-0002

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

On September 13, 1999, plaintiff, the City of Springfield, Illinois (City), an Illinois municipal corporation, fileda complaint for declaratory judgment and injunctive reliefagainst defendants, Donald L. Hashman, Henrietta M. Hashman, andthe Village of Chatham, Illinois (Village of Chatham), an Illinois municipal corporation. After a bench trial, the trial courtentered judgment in favor of defendants. This court reversed thetrial court's judgment (City of Springfield v. Hashman, No. 4-01-0002 (January 17, 2002) (unpublished order under Supreme CourtRule 23)). On April 3, 2002, defendants, Donald L. Hashman andHenrietta M. Hashman, petitioned the supreme court for leave toappeal. Defendant, Village of Chatham, did not petition thesupreme court for leave to appeal. Our supreme court denieddefendants' petition for leave to appeal but, under its supervisory authority, directed this court to vacate our order and toreconsider our judgment "in light of section 95.501 [of Chapter95] of the [1988 City of] Springfield Code of Ordinances, and toresolve the issue of plaintiff's entitlement to injunctiverelief, if any, and the parameters thereof with appropriateconsideration of [section 11-101 of the Code of Civil Procedure(Code) (735 ILCS 5/11-101 (West 1998))] and the trial court'sfindings of fact." Pursuant to supreme court supervisory order,we vacate our order entered on January 17, 2002. We reverse andremand with directions.

Donald L. Hashman and Henrietta M. Hashman (Hashmans)are the developers of certain real estate, consisting of 22.408acres of land in unincorporated Sangamon County. The Hashmansbegan constructing roads and other improvements on the subjectproperty for a residential development called Wildwood Estates. This development was designed for approximately 20 single-familyhomesites on building lots ranging from two-thirds of an acre toone acre in size, utilizing private sewage disposal systems oneach of the lots.

The City operates a public water system that is supplied from Lake Springfield, a 4,300-acre man-made reservoirowned and operated by the City. Lake Springfield providesdrinking water to 80% of the population of Sangamon County,including seven wholesale water customers, five villages and twowater districts. The subject property is contiguous to thecorporate limits of the City and is located within approximately200 feet of Lake Springfield immediately adjacent to Sugar Creekmarsh, which drains directly into Sugar Creek which, in turn,feeds Lake Springfield. Section 96.019 of chapter 96 of the 1988City of Springfield Code of Ordinances prohibits any personwithin the Lake Springfield drainage area from constructing orusing any cesspool or other structure which is so situated thatpollutants or oily liquid may reach and pollute or threaten topollute the lake unless adequate treatment and disposal facilities are to be provided and are approved by the City.

The Springfield Comprehensive Plan 2010, Goals, Policies & Objectives, adopted July 2, 1991, includes the prohibitionof new septic systems along the Lake Springfield shoreline andthe phase-out of septic systems as sewers become available forthe protection of Lake Springfield. The prior comprehensiveplan, dated August 1982, states that since Lake Springfield isthe city's source of drinking water, protection of the lake andits watershed is of the utmost importance. The 1982 plan statesthat "[t]he best way to protect Lake Springfield would be toallow no further development in areas which drain into the lake. Obviously, this is not practical. Alternative solutions include:controlling the types of development, eliminating the use ofseptic tanks and controlling runoff from any new development."

In 1986, 1988, and 1989, the Hashmans submitted theirsubdivision plans for development of the subject property to theCity for review pursuant to the City's land subdivision ordinance. On July 14, 1986, the Hashmans were advised by theSpringfield Sangamon County Regional Planning Commission (Planning Commission) that their property was not suitable for subdividing because the property drained directly into Sugar Creek,which in turn feeds into Lake Springfield. According to thePlanning Commission, the soils are rated as having moderate tosevere limitations for septic tank seepage fields and the probability of effluent drainage into Sugar Creek is great. On April17, 1990, the Springfield city council denied the Hashmans'request for reconsideration of the Planning Commission's October18, 1989, recommendation.

On October 25, 1991, the Hashmans, and others, filed apetition in the circuit court of Sangamon County to annex certainunincorporated territory, including the Wildwood Estates development, to the Village of Chatham pursuant to article 7, division1, of the Illinois Municipal Code (Municipal Code) (Ill. Rev.Stat. 1991, ch. 24, pars. 7-1-1 through 7-1-48). After anevidentiary hearing, the trial court entered an order on May 14,1992, denying annexation. The trial court determined that "theterritory in question *** is simply not a natural and gradualextension of the Village [of Chatham] boundaries to areas whichadjoin one another in a substantial physical sense." On appeal,this court affirmed the order dismissing the petition to annex,finding that "the nature of the territory sought to be annexeddoes not meet the requirements of section 7-1-1 of the [Municipal] Code." In re Annexation of Certain Territory to the Villageof Chatham, Illinois, 245 Ill. App. 3d 786, 796, 614 N.E.2d 1278,1285 (1993). On January 29, 1996, the Hashmans entered into anannexation agreement with the Village of Chatham pursuant to theMunicipal Code.

On December 11, 1998, the Hashmans were advised by theSangamon County Zoning Board that any home construction on theproperty would require a certificate of zoning compliance andthat the current zoning classification for the property was "A,"agricultural, requiring one-acre lots. On June 15, 1999, theHashmans filed a petition with the Sangamon County Zoning Boardof Appeals (Zoning Board of Appeals) requesting rezoning of thesubject property from "A," agricultural district, to "R-1,"single-family-residence district, which would allow lots of lessthan one acre in size. On July 15, 1999, a public hearing on theHashmans' petition was held before the Zoning Board of Appeals,which recommended that the Sangamon County Board deny therezoning:

"due to proximity to Lake Springfield andlack of public sewers, the smaller lot areaunder R-1 zoning would allow a higher densityof private septic systems which would bepotentially detrimental to the lake."

On September 14, 1999, the Sangamon County Board accepted therecommendation of the Zoning Board of Appeals and denied theHashmans' petition to rezone the subject property. On September15, 1999, the Village of Chatham adopted Ordinance No. 99-43,zoning the subject property R-1 single-family residence.

On September 13, 1999, the City filed a complaint fordeclaratory judgment and injunctive relief against the Hashmansand the Village of Chatham, and on October 21, 1999, it filed anamendment to the complaint. The matter proceeded to a benchtrial. At the close of all the evidence, the trial court enteredjudgment in favor of defendants, finding:

"(a) Wildwood Estates is within thedrainage area of Lake Springfield.

(b) Septic systems, without regularmaintenance, may fail and release human wasteinto the environment.

(c) The City has approved the installation of private sewage systems within thedrainage area of Lake Springfield for 'major'and 'minor' subdivisions, while at the sametime denying approval of Wildwood EstatesSubdivision.

(d) Plaintiff's evidence fails to satisfactorily persuade or prove that septic systems are polluting or will pollute LakeSpringfield. The possibility that a septicsystem may fail, that human waste may bereleased into the environment, that saidwaste may enter Sugar Creek, and that saidwaste may enter Lake Springfield fails tosustain Plaintiff's burden of proof.

(e) Sangamon County has the power toregulate septic systems installed in WildwoodEstates.

(f) In order to extend the corporatelimits of the Village [of Chatham] to theSouth and East, Wildwood Estates presents anecessary addition to the Village [of Chatham]. Therefore, the addition of said subdivision was a natural and gradual extension ofthe Village [of Chatham] boundaries."

This appeal followed.

The supreme court asks that we reconsider our judgmentin light of section 95.501 of the 1988 City of Springfield Codeof Ordinances. We have reviewed each of the briefs filed in thiscourt by plaintiff, defendants, and amicus curiae. We do notfind a reference to section 95.501. We do find, in defendants'petition for rehearing, filed February 5, 2002, the following:

"Section 96.019 of the City Code cannotbe viewed in a vacuum. The City ordinanceswhich govern septic systems,