Nos. 2--07--0539 & 2--07--0632 cons. Filed: 12-10-08 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE VILLAGE OF MONTGOMERY, ) Appeal from the Circuit Court ) of Kane County. Plaintiff-Appellee, ) ) v. ) No. 06--MR--533 ) AURORA TOWNSHIP and ) FRED BURGESS, in his Official Capacity as ) Aurora Township Highway Commissioner, ) ) Defendants-Appellants ) Honorable ) Michael J. Colwell, (The City of Aurora, Defendant-Appellee). ) Judge, Presiding. ______________________________________________________________________________
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 Nos. 2--07--0539 & 2--07--0632 cons.
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
-2- Nos. 2--07--0539 & 2--07--0632 cons.
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
-3- Nos. 2--07--0539 & 2--07--0632 cons.
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 [b]ridge 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:
-4- Nos. 2--07--0539 & 2--07--0632 cons.
"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."
On March 6, 2007, the Commissioner filed an answer to Montgomery's complaint, denying
all material allegations. The Commissioner also filed four affirmative defenses to Montgomery's
suit. The Commissioner's first affirmative defense alleged that Aurora Ordinance No. 3317,
disconnecting the land on which the bridge was built, was void because "the Illinois Municipal Code
precludes disconnection from a municipality by a municipal entity." The Commissioner alleged that
the land disconnected by the ordinance was owned by a municipal entity known as the "Fox River
Valley Pleasure Driveway and Park District." The Commissioner also alleged that Montgomery
Ordinance No. 130 (eff. October 7, 1957), which also purported to disconnect land owned by the Fox
River Valley Pleasure Driveway and Park District and on which the bridge was built, was similarly
void.
The Commissioner's second affirmative defense alleged that the Township's repair of the
bridge in 1997 was contingent upon Aurora and Montgomery taking jurisdiction over the bridge after
the completion of the repairs. In support of this allegation, the Commissioner attached a February
-5- Nos. 2--07--0539 & 2--07--0632 cons.
14, 1996, letter that former highway commissioner Wilmes wrote to Montgomery's administrator,
which provided, in relevant part:
"Thank you for taking time to discuss the Ashland Avenue bridge rehabilitation
project this morning.
***
Funding of the project solely by [the Township] is contingent upon [the Township]
being relieved from ownership, maintenance, legal and financial obligations, past, present,
and future, relative to [the bridge], intersections, park accesses and any appurtenances there
unto as have existed, exist, or may exist in the future.
Further, it must be resolved by the three entities that ownership shall be conveyed to
[Aurora], and the Aurora/Montgomery boundary agreement shall govern all future
maintenance.
Should any further clarification or additional discussion be required, please notify me
at once. Again, I thank you for making this project and transfer possible."
The Commissioner alleged that Aurora and Montgomery never objected to the terms of this
correspondence and that they have waived any right to disclaim ownership of or responsibility for
the bridge.
The Commissioner's third affirmative defense alleged that IDOT "has examined ownership
of the [bridge] and has made a determination that the [bridge] lies within the corporate limits of
Montgomery." In support of this allegation, the Commissioner attached a July 30, 2004, letter
written by IDOT engineer Chuck Ingersoll, which provided, in relevant part:
-6- Nos. 2--07--0539 & 2--07--0632 cons.
"This is in response to your request for verification as to whether Aurora Township
is responsible for the Ashland Avenue Bridge *** over the Fox River in Aurora, Illinois
(Kane County).
You had brought to our attention that [the bridge] had been annexed by a
municipality, yet our structure information database still indicated that [the bridge was]
Aurora Township's responsibility. Pursuant to statute 605 ILCS 5/6--203 of the Illinois Road
and Bridge Laws, a township cannot have jurisdiction over streets in municipalities.
Whenever a municipality annexes a highway and/or structure that was under township
responsibility, this highway or structure automatically becomes the responsibility of the
annexing municipality.
Our records indicate that [the bridge is] within the city limits of a municipality.
Therefore, Aurora Township has no responsibility regarding [the bridge]."
The Commissioner also provided a 2005 IDOT internal memorandum that stated that "Montgomery
owns a small section of Ashland which includes [the bridge]" and that "everything points to
Montgomery owning [the bridge]."
Relying on Aurora's and Montgomery's pleadings, the Commissioner's fourth affirmative
defense alleged that Aurora had jurisdiction over the roadway on one side of the bridge and that
Montgomery had jurisdiction over the roadway on the other side. The Commissioner alleged that
the Township had no jurisdiction over any road leading to or from the bridge and that, under Illinois
law, "the duty to maintain a bridge rests with the government responsible for maintaining a public
roadway for which the bridge is a part."
-7- Nos. 2--07--0539 & 2--07--0632 cons.
On March 9, 2007, the Commissioner filed a cross-motion for summary judgment. The
Commissioner argued that Aurora's 1961 ordinance and Montgomery's 1957 ordinance purporting
to disconnect the land on which the bridge was built were void because "a municipal entity cannot
disconnect from a municipality under the Illinois Municipal Code." The Commissioner argued that
the entity seeking disconnection under these ordinances was the Fox River Valley Pleasure Driveway
and Park District, which, as a municipal entity, could not avail itself of the disconnection procedure.
The Commissioner further argued that, because Aurora and Montgomery had admitted that they have
jurisdiction over the land on the opposite sides of the bridge, they must also have jurisdiction over
the bridge itself as a matter of law. The Commissioner argued that Aurora and Montgomery could
not divest themselves of responsibility for maintaining a bridge that was an integral part of the public
roadway system within their municipal jurisdictions. The Commissioner also argued that no
township road connected with the bridge and that the nearest township road under the jurisdiction
of the Commissioner was more than one mile away.
On May 1, 2007, following a hearing, the trial court entered an order (1) denying the
Township's motion to dismiss; (2) denying the Commissioner's cross-motion for summary judgment;
and (3) granting Aurora and Montgomery's joint motion for summary judgment. The trial court's
order further provided that "the Court declares that the ownership and control of the Ashland Avenue
Bridge rests with the Aurora Township, and the obligation to maintain the bridge rests with the
Aurora Township Highway Commissioner." Following the denial of the Commissioner's motion to
reconsider, both the Township and the Commissioner filed timely notices of appeal. This court has
consolidated the appeals for purposes of decision.
-8- Nos. 2--07--0539 & 2--07--0632 cons.
Initially, we address appeal No. 2--07--0632, in which the Township contends that the trial
court erred in denying its motion to dismiss pursuant to section 2--619(a)(9) of the Procedure Code.
The Township argues that it is not a proper party to this action because it has no statutory power or
authority over roads and bridges. See Western Sand & Gravel Co. v. Town of Cornwall, 2 Ill. 2d
560, 566 (1954); Wiese, 142 Ill. App. 3d at 492. The Township asserts that, under section 6--201.8
of the Illinois Highway Code (the Highway Code) (605 ILCS 5/6--201.8 (West 2006)), only the
township highway commissioner has charge of roads and has the duty to repair and maintain them.
An action may be dismissed pursuant to section 2--619(a)(9) of the Procedure Code when it is barred
by an affirmative matter that defeats the claim or avoids its legal effect. 735 ILCS 5/2--619(a)(9)
(West 2006); Turner v. Fletcher, 302 Ill. App. 3d 1051, 1055 (1999). We review de novo the trial
court's ruling on a section 2--619 motion. Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352
(2008).
We conclude that the Township is a proper party to this action and that the trial court did not
err in denying its motion to dismiss. Although a township highway commissioner has sole statutory
authority to repair and improve "the roads of his district" (605 ILCS 5/6--201.8 (West 2006)), the
township is nonetheless the owner of the roads within the township's road system (Hennings v.
Centreville Township, 56 Ill. 2d 151, 154-55 (1974)) and must approve the budget presented by the
highway commissioner to operate the township's roads and bridges and must audit the highway
commissioner's accounts (60 ILCS 1/80--15, 80--60 (West 2006)). As such, the Township was
properly named as a defendant to the instant action, which sought a declaration of the "rights,
obligations, and liabilities of the parties as they pertain to the [b]ridge." Moreover, we note a
number of similar cases in which townships were named as defendants. See City of Mattoon v.
-9- Nos. 2--07--0539 & 2--07--0632 cons.
Paradise Township, 131 Ill. App. 3d 327 (1985); Andrews v. City of Springfield, 56 Ill. App. 2d 201
(1965). Here, the trial court's final order did not impose upon the Township any obligation that was
contrary to its statutory authority. As noted above, although the trial court declared that the
Township owned the bridge, it nonetheless ruled that the Commissioner was responsible for
maintaining the bridge. We therefore affirm the trial court's order denying the Township's section
2--619 motion to dismiss.
In appeal No. 2--07--0539, the Commissioner contends that the trial court erred in granting
Aurora and Montgomery's joint motion for summary judgment and in denying his cross-motion for
summary judgment. The Commissioner argues that the trial court improperly focused on what entity
"owned" the bridge, when the appropriate inquiry should have been what entity had "jurisdiction"
over the bridge. The Commissioner argues that he did not have jurisdiction over the bridge because
it was part of the municipal street system of Aurora and Montgomery, whose municipal boundaries
extended to either side of the bridge. The Commissioner relies upon IDOT's July 30, 2004, letter
indicating that the bridge was within the boundaries of a municipality and was not the responsibility
of the Township. The Commissioner additionally asserts that Aurora's and Montgomery's 1957 and
1961 ordinances disconnecting the land under the bridge from those municipalities were void and
of no effect. The Township joins in many of the Commissioner's arguments.
Summary judgment is appropriate where the pleadings, affidavits, depositions, and
admissions on file show that no genuine issue of material fact exists and that the moving party is
entitled to judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 2006). The purpose of
summary judgment is not to try a question of fact but, rather, to determine whether a genuine issue
of material fact exists. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). In
-10- Nos. 2--07--0539 & 2--07--0632 cons.
determining whether a genuine issue as to any material fact exists, a court must construe the
pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor
of the opponent. Adams, 211 Ill. 2d at 43. Summary judgment is inappropriate where the material
facts are disputed or where, the material facts being undisputed, reasonable persons might draw
different inferences from the undisputed facts. Adams, 211 Ill. 2d at 43. Summary judgment is a
drastic means of disposing of litigation and should be allowed only when the right of the moving
party is clear and free from doubt. Adams, 211 Ill. 2d at 43. This court reviews de novo a trial
court's ruling on a motion for summary judgment. Adams, 211 Ill. 2d at 43.
At the outset, we agree that the relevant question in the instant case is not what entity owns
the bridge, but what entity has responsibility for maintaining the bridge. Streets and roadways are
held by public entities in trust for the benefit of the public (Hawthorne Bank of Wheaton v. Village
of Glen Ellyn, 154 Ill. App. 3d 661, 667 (1987)), and governmental entities have a corresponding
duty to maintain the streets and roadways within their jurisdiction (Fountain Head Drainage District
v. City of Champaign, 160 Ill. App. 3d 341, 346 (1987)). By statute and at common law, "the duty
to maintain a bridge rests upon the government responsible for maintaining the public roadway of
which the bridge is a part, be it a county or a road district *** and regardless of whether the bridge
was built by that local government or by another governmental entity." County of Bureau v.
Thompson, 139 Ill. 2d 323, 340 (1990). Therefore, the relevant inquiry on appeal is what
governmental entity is responsible for maintaining the public roadway of which the bridge is a part.
Thompson, 139 Ill. 2d at 340-41.
Section 2--103 of the Highway Code defines the township and district road system to include
"all rural roads to which this Code applies *** and which are not a part of the State highway system,
-11- Nos. 2--07--0539 & 2--07--0632 cons.
county highway system or municipal street system." 605 ILCS 5/2--103 (West 2006). The Highway
Code defines a rural road as "[a]ny highway or road outside the corporate limits of any municipality."
605 ILCS 5/2--218 (West 2006). Meanwhile, section 2--104 of the Highway Code defines the
municipal street system as including "existing streets and streets hereafter established in
municipalities which are not a part of the State highway system or county highway system, together
with roads outside their corporate limits over which they have jurisdiction pursuant to this Code or
any other statute." 605 ILCS 5/2--104 (West 2006). The parties do not dispute that the roadway
comprising the bridge is a part of neither the state highway system nor the county highway system.
Hence, under the definitions provided by the Highway Code, if the bridge is not a part of a municipal
street system, then it is a part of the township and district road system and is the responsibility of the
Commissioner to maintain. 605 ILCS 5/2--103 (West 2006); Andrews, 56 Ill. App. 2d at 209-10.
Based upon our review of the record, the uncontroverted evidence establishes that the bridge
is not a part of a municipal street system, and we conclude that the trial court properly granted
summary judgment on behalf of Montgomery and Aurora. As detailed above, the record contains
copies of municipal ordinances, enacted prior to the bridge's construction, by which Montgomery
and Aurora disconnected the property under the bridge from their corporate boundaries. The record
also contains affidavits from Aurora's former director of public property and Montgomery's public
works director averring that the bridge is not within the corporate limits of either municipality.
Based upon such evidence, the roadway of which the bridge is a part is not within Montgomery's or
Aurora's governmental jurisdiction, and those municipalities have no corresponding statutory or
common-law duty to maintain the bridge. See 605 ILCS 5/2--104 (West 2006); Thompson, 139 Ill.
2d at 340-41.
-12- Nos. 2--07--0539 & 2--07--0632 cons.
Additionally, the materials accompanying the cross-motions for summary judgment plainly
indicate that neither Montgomery nor Aurora has ever taken responsibility for maintaining the
bridge. The Township's former highway commissioner, Edward Wilmes, averred that the Township
constructed the bridge in 1967 and 1968 and maintained the bridge for nearly 40 years. Wilmes
averred that Aurora and Montgomery originally disconnected the land under the bridge so that the
Township could construct the bridge. The Township also rebuilt the bridge in 1997 at a cost of
approximately $1.2 million. The record contains evidence demonstrating that plaques have been
affixed to the bridge showing the Township's participation in the bridge's reconstruction. Although
the record contains intergovernmental agreements reflecting that, during certain years, Aurora agreed
to plow and salt the bridge on behalf of the Township, neither Aurora nor Montgomery ever executed
a formal agreement to take over maintenance responsibility for the bridge. Lacking such an
agreement or evidence that the bridge was otherwise within the boundaries of a municipality, the trial
court properly determined that the Commissioner was responsible for maintaining the bridge. See
605 ILCS 5/2--103 (West 2006).
In reaching this conclusion, we reject the Commissioner's argument that Montgomery's and
Aurora's ordinances disconnecting the property on which the bridge was built were void and of no
effect. The Township asserts that the municipalities had no authority under Illinois law to disconnect
property owned by a municipal entity, here the Fox River Valley Pleasure Driveway and Park
District. In support of his position, the Commissioner relies upon a line of cases holding that a
municipality lacks authority to disconnect its own property, under section 7--3--4 of the Illinois
Municipal Code (65 ILCS 5/7--3--4 (West 2006)). See Citizens for Conservation v. Village of Lake
Barrington, 241 Ill. App. 3d 471, 475-76 (1993); People ex rel. Town of Aurora v. City of Aurora,
-13- Nos. 2--07--0539 & 2--07--0632 cons.
222 Ill. App. 3d 950, 954-55 (1991). However, the Commissioner may not use the instant
proceeding as a means to collaterally attack the validity of municipal ordinances disconnecting the
land under the bridge. Questions of whether parcels have been legally disconnected or annexed can
be tried only by quo warranto proceedings and cannot be raised collaterally. See People ex rel.
Quisenberry v. Ellis, 253 Ill. 369, 374-75 (1912); East Side Fire Protection District v. City of
Belleville, 221 Ill. App. 3d 654, 655-56 (1991); North Maine Fire Protection District v. Village of
Niles, 53 Ill. App. 3d 389, 394-95 (1977). The Commissioner never sought review of the municipal
ordinances by filing a quo warranto action, and he is precluded from raising the issue collaterally
almost 50 years later. Instead, we presume the validity of the ordinances and conclude that they
disconnected the property on which the bridge was built from the municipal boundaries. See
Quisenberry, 253 Ill. at 374-75.
The Commissioner alternatively argues that, even assuming the validity of the ordinances,
the legal description contained within Montgomery Ordinance No. 130 "failed to disconnect property
adjacent to the bridge." The Commissioner asserts that Montgomery, therefore, has jurisdiction over
property adjacent to the bridge. However, the Commissioner fails to cite any authority supporting
his conclusion that Montgomery's jurisdiction over property adjacent to the bridge has relevance to
the determination of jurisdiction over the bridge itself. As noted above, the relevant inquiry under
section 2--104 of the Highway Code is whether the bridge is within municipal boundaries. Hence,
the relevant question is whether the land on which the bridge sits is within municipal boundaries,
not whether the land adjacent to the bridge is within those boundaries. 605 ILCS 5/2--104 (West
2006). Therefore, that Montgomery retained jurisdiction over property adjacent to the bridge does
not alter our determination that the bridge falls within the Township's jurisdiction.
-14- Nos. 2--07--0539 & 2--07--0632 cons.
The Commissioner further argues that, even if the bridge is outside the corporate boundaries
of Aurora and Montgomery, the bridge is nonetheless a part of a municipal street system. In making
this argument, the Commissioner notes that section 2--104 of the Highway Code provides that the
municipal street system includes existing streets in the municipality "together with roads outside [its]
corporate limits over which [it has] jurisdiction pursuant to this Code or any other statute."
(Emphasis added.) 605 ILCS 5/2--104 (West 2006). The plain language of this section provides that
roads outside a municipality's corporate limits are a part of its street system only where the
municipality has jurisdiction over the roads under another provision of the Highway Code or other
statute. Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006)
(noting that statutes must be applied according to their plain language). Tellingly, the Commissioner
cites no other provision of the Highway Code or other statute that would place the bridge under the
jurisdiction of either Aurora or Montgomery. Lacking any statutory grant of jurisdiction, the bridge
falls outside Aurora's and Montgomery's corporate limits and is not a part of a municipal street
system under section 2--104 of the Highway Code.
The lack of a statutory grant of jurisdiction extending Montgomery's or Aurora's jurisdiction
beyond its corporate boundaries distinguishes this case from the authorities relied upon by the
Commissioner. See City of Mattoon v. Paradise Township, 131 Ill. App. 3d 327 (1985); Andrews
v. City of Springfield, 56 Ill. App. 2d 201 (1965). In both of these cases, municipalities were found
to have maintenance responsibilities as to roadways outside their corporate boundaries. The
roadways at issue provided access to lots adjoining a man-made lake constructed by the
municipalities outside their corporate limits as part of a municipal system of water works and water
supply. Mattoon, 131 Ill. App. 3d at 329; Andrews, 56 Ill. App. 2d at 205-08. The lake and water
-15- Nos. 2--07--0539 & 2--07--0632 cons.
systems were constructed by the municipalities under an express grant of legislative authority.
Mattoon, 131 Ill. App. 3d at 329; Andrews, 56 Ill. App. 2d at 208. Under these circumstances, the
reviewing courts held that the roads accessing these properties were part of the municipal street
systems under section 2--104 of the Highway Code because the municipalities had jurisdiction over
the roads by "other statute." Mattoon, 131 Ill. App. 3d at 332-33; Andrews, 56 Ill. App. 2d at 210.
Unlike in Mattoon and Andrews, neither Aurora nor Montgomery has statutory jurisdiction
over the bridge. To the contrary, the evidence reflects that these municipalities have no legal
relationship to the bridge that would extend their jurisdiction to include the bridge as part of their
municipal street systems. The evidence demonstrates that the bridge was built by the Township on
land outside Aurora's and Montgomery's corporate limits. Aurora and Montgomery have never
annexed the land under the bridge, and it is evident that the Township has maintained and repaired
the bridge since its initial construction.
Additionally, we reject the Commissioner's argument that genuine issues of material fact
precluded the entry of summary judgment. The Commissioner asserts that evidence appearing in the
record suggested the possibility that Aurora and Montgomery had entered into intergovernmental
agreements to assume responsibility to maintain and repair the bridge. Specifically, the
Commissioner relies upon the 1990 intergovernmental boundary line agreement between Aurora and
Montgomery, which contained a provision relating to the municipalities' potential responsibilities
in the event of the repair, reconstruction, or replacement of the bridge. The Commissioner further
relies upon Wilmes's 1996 letter to Montgomery's administrator, stating that funding of the 1997
bridge reconstruction was contingent upon the transfer of bridge ownership to Aurora and Aurora's
and Montgomery's assumption of repair and maintenance responsibilities.
-16- Nos. 2--07--0539 & 2--07--0632 cons.
Contrary to the Commissioner's assertions, however, these documents do not establish that
Montgomery or Aurora did, in fact, agree to assume responsibility for the bridge. As noted above,
the provision of the 1990 intergovernmental boundary line agreement between Aurora and
Montgomery relating to maintenance of the bridge became effective only "[i]n the event Aurora
enters into an agreement with Aurora Township with respect to major repairs, reconstruction or
replacement of the Ashland Avenue Bridge." The record contains no evidence reflecting that Aurora
ever entered into an agreement with the Township regarding the bridge. Although Wilmes's 1996
letter reflected that the Township and the municipalities had entered into discussions regarding the
transfer or maintenance of the bridge, no agreement on the matter was ever executed. Indeed, during
his deposition, Wilmes specifically testified that his 1996 letter merely reflected a proposal discussed
by the Township and the municipalities and that no formal agreement regarding the transfer or
maintenance of the bridge was ever reached. Wilmes testified that, despite the failure to reach an
agreement with the municipalities, the Township decided to repair the bridge due to the present
availability of federal, state, and township funds to pay for the project. Based on such
uncontroverted evidence from the Township's former highway supervisor, we find no issue of fact
as to Montgomery's or Aurora's execution of an agreement to assume responsibility for the bridge.
We also reject the Commissioner's assertions that the July 30, 2004, letter written by IDOT
engineer Chuck Ingersoll and IDOT's subsequent internal memorandum precluded the trial court's
entry of summary judgment. As noted above, Ingersoll stated in his letter that IDOT's structure
information database indicated that the bridge was the Township's responsibility. However, Ingersoll
stated that, because the Township "had brought to our attention that [the bridge] had been annexed
by a municipality," he determined that the Township did not have responsibility for the bridge. Such
-17- Nos. 2--07--0539 & 2--07--0632 cons.
correspondence fails to raise a genuine issue of material fact as to jurisdiction over the bridge,
because it provides no factual basis from which we might conclude that the bridge was a part of a
municipal street system. See Kosten v. St. Anne's Hospital, 132 Ill. App. 3d 1073, 1079 (1985)
(noting that conclusory statements lacking factual basis are insufficient to create an issue of fact so
as to defeat a motion for summary judgment). Ingersoll stated that his determination was predicated
upon information provided by the Township indicating that the land under the bridge had been
annexed by a municipality. However, the record contains no evidence of such an annexation, and
the Township has failed to produce the information that it provided to IDOT and upon which IDOT
based its conclusion.
Similarly, the 2005 IDOT internal memorandum indicating that Montgomery owned the
bridge lacks any verifiable basis. Although the memorandum states that Montgomery "owned a
small section of Ashland which includes [the bridge]," it provides no explanation of the basis for this
determination. Accordingly, IDOT's determination regarding jurisdiction is unsupported and
conclusory and provides no basis to suggest that the bridge is within the corporate limits of either
Montgomery or Aurora. In view of the uncontroverted evidence presented by Aurora and
Montgomery that the bridge is not within their corporate boundaries, the IDOT exhibits offered by
the Commissioner failed to raise a genuine issue of material fact as to jurisdiction over the bridge.
See Kosten, 132 Ill. App. 3d at 1079.
In closing, both the Township and the Commissioner assert that the bridge cannot be under
their jurisdiction because Aurora and Montgomery have annexed the property on either side of the
bridge, leaving the bridge surrounded by the two municipalities and isolated from any Township road
by many miles. While we agree that the bridge may be heavily used by the residents of Aurora and
-18- Nos. 2--07--0539 & 2--07--0632 cons.
Montgomery for travel between the two municipalities, such a circumstance, as well as the bridge's
isolation from Township roads, does not render the bridge a part of a municipal street system under
the plain language of section 2--104 of the Highway Code. As already discussed, the municipal
street system consists of the existing streets within the corporate limits and other streets over which
a municipality has jurisdiction by statute. 605 ILCS 5/2--104 (West 2006). Here, the record
definitively establishes that the bridge is not contained within the corporate limits of Montgomery
or Aurora and that neither municipality otherwise has statutory jurisdiction. Accordingly, the trial
court properly concluded that the bridge was not a part of a municipal street system and that the
obligation to maintain the bridge rested with the Commissioner. Accordingly, we affirm the trial
court's order granting Aurora and Montgomery's motion for summary judgment and denying the
Commissioner's cross-motion for summary judgment.
For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.
Affirmed.
BURKE and SCHOSTOK, JJ., concur.
-19-