Village of Montgomery v. Aurora Township

899 N.E.2d 567, 387 Ill. App. 3d 353
Appellate Court of Illinois·Decided December 10, 2008·No. 2-07-0539, 2-07-0632 cons.·Published·Cited by 7 cases

Opinion

JUSTICE HUTCHINSON

delivered the opinion of the court:

In this consolidated appeal, defendants, Aurora Township (the Township) and Fred Burgess, in his official capacity as Aurora Township highway commissioner (the Commissioner), appeal from the trial court’s order denying the Township’s motion to dismiss and granting summary judgment in favor of plaintiff, the Village of Montgomery (Montgomery), and defendant, the City of Aurora (Aurora). In granting summary judgment, the trial court found that the Township owned the Ashland Avenue Bridge (the bridge) spanning the Fox River in southern Kane County, and further found that the Commissioner had the obligation to maintain the bridge. On appeal, the Township contends that the trial court erred in denying its motion to dismiss, because it was not a proper party to this action. Additionally, the Commissioner contends that the trial court erred in granting Montgomery and Aurora’s joint motion for summary judgment and in denying his cross-motion for summary judgment. We affirm.

On December 11, 2006, Montgomery commenced the instant proceeding by filing a complaint for declaratory judgment. As amended, the complaint named the Township, the Commissioner, and Aurora as defendants and requested the trial court to determine and adjudicate the rights, obligations, and liabilities of the parties as they related to the bridge. The complaint alleged that the bridge was located in unincorporated Kane County, between the corporate limits of Montgomery and Aurora, and was wholly within the Township’s boundaries. The complaint alleged that the Township constructed the bridge in 1967 and 1968 and continued to maintain the bridge between 1968 and 2005. The complaint alleged that, in 2005, the Commissioner sent a letter to the Illinois Department of Transportation (IDOT), indicating that the bridge was not within the Township’s jurisdiction. The complaint alleged that, since that time, the Township had refused to maintain and clear snow from the bridge, creating an unsafe condition for motorists. Montgomery requested the trial court to declare that it did not own the bridge and that it had no obligation to maintain the bridge.

On January 11, 2007, the Township moved to dismiss the complaint pursuant to section 2 — 619(a)(9) of the Code of Civil Procedure (the Procedure Code) (735 ILCS 5/2 — 619(a)(9) (West 2006)). The Township asserted that Montgomery’s complaint against it was barred because townships have no statutory authority over roads and bridges. See Burnidge Brothers Almora Heights, Inc. v. Wiese, 142 Ill. App. 3d 486, 492 (1986).

On March 2, 2007, Montgomery and Aurora jointly moved for summary judgment. In their motion, they argued that, prior to the construction of the bridge, Aurora had disconnected from its southern corporate boundaries the land on which the bridge was to be built. Additionally, prior to construction, Montgomery annexed land immediately south of the planned bridge. Montgomery and Aurora argued that at no time after the construction of the bridge had they annexed the land upon which the bridge was constructed. They argued that the Township had constructed the bridge in 1967 and 1968 and had maintained the bridge since that time until 2005. Montgomery and Aurora argued that, in 1997, the Township had also repaired and completely refurbished the bridge. Montgomery and Aurora also argued that, in 2005, the Township stopped maintaining the bridge and has since insisted that either Montgomery or Aurora owns the bridge and is responsible for its maintenance and operation. They requested the trial court to enter summary judgment in their favor and declare that the Township owned the bridge and was responsible for its repair and maintenance.

In support of their joint motion for summary judgment, Montgomery and Aurora attached: (1) a photocopy of Montgomery Ordinance No. 138 (eff. March 3, 1958), annexing to the municipality parcels of land immediately to the south of the present location of the bridge; (2) a photocopy of Aurora Ordinance No. 3317 (eff. May 15, 1961), disconnecting from the southern boundary of the municipality certain parcels of land on which the bridge is presently located; (3) the affidavit of Aurora city clerk Cheryl M. Vonhoff, indicating that her “search of the City records revealed no ordinance or records wherein the City of Aurora reannexed territory that was disconnected from the City by Ordinance No. 3317”; (4) the affidavit of Aurora’s former director of public property, Rosario DeLeon, indicating that the bridge was not within Aurora’s corporate limits; (5) photocopies of intergovernmental agreements between Aurora and the Township dated November 20, 2001, and October 28, 2004, indicating that Aurora would plow and salt the bridge even though it fell within the Township’s jurisdiction; (6) the affidavit of Montgomery public works director Michael Pubentz, averring that the bridge was not within the Montgomery corporate limits and that, prior to 2006, the Township had maintained the bridge with the assistance of Aurora.

Montgomery and Aurora also attached the affidavit of Edward Wilmes, who was Aurora Township highway commissioner between 1993 and 2001. In his affidavit, Wilmes averred that the bridge was constructed by the Aurora Township road district in 1967 and 1968. Wilmes averred that, during his time as highway commissioner, his responsibilities included maintaining the bridge and removing snow and ice from the bridge. Wilmes averred that, during each year of his term, he entered into an agreement with Aurora, whereby Aurora agreed to clear snow from the bridge on the Township’s behalf. Wilmes averred that Aurora had “disconnected the territory upon which the [b]ridge was ultimately built so that the [bjridge could be built by the Township (as, after disconnection, the territory was unincorporated).” Wilmes averred that, after construction of the bridge and until the end of his term as highway commissioner, the Aurora Township road district continued to own and maintain the bridge, and there was no attempt by any municipality to annex the bridge. Wilmes averred that neither Aurora nor Montgomery owned the bridge or had any obligation to maintain it. Wilmes averred that the Aurora Township road district rebuilt the bridge in 1997 at a cost of approximately $1.2 million. Following the reconstruction of the bridge in 1997, plaques were affixed to the bridge indicating the Township’s ownership of the bridge. The parties later deposed Wilmes, at which time he affirmed the statements contained in his affidavit.

Also attached to the motion for summary judgment was a jurisdictional boundary line agreement executed by Aurora and Montgomery on March 9, 1990. Paragraph 9 of the agreement provided as follows:

“In the event Aurora enters into an agreement with Aurora Township with respect to major repairs, reconstruction or replacement of the Ashland Avenue Bridge, Montgomery shall reimburse Aurora for 25% of the total costs for such major repairs, reconstruction or replacement. In the event Montgomery is requested to financially participate in such major repairs, reconstruction or replacement, Montgomery shall be notified of such proposed work and has the right to participate in the decision as to the necessity, nature and extent of such work. In any event, all ordinary repairs and maintenance to said bridge shall not be the responsibility of Montgomery.”

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Village of Montgomery v. Aurora Township, 899 N.E.2d 567, 387 Ill. App. 3d 353 (Ill. Ct. App. 2008).

899 N.E.2d 567 (Village of Montgomery v. Aurora Township) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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