River Oaks Storm Sewers and Common Area Drainage Issues

Several times during the past year, the Common Area has filled with water following a heavy rain and has not drained until the storm sewer was manually unblocked by a crew from the City. This indicates that a blockage at the restrictor pipe in the storm sewer that lies beneath the Common Area is happening with some regularity. Some of this blockage can be caused by debris that is swept into the storm sewer lines. Over the past thirty years of River Oaks' existence, there have been a handful of times that this blockage has occured. Each of these previous times the City was called to unblock the sewer line, which they did without dispute. In the past year, however, the frequency of these blockages have increased. As the blockages increased, sinkholes began to appear along the length of the storm sewer pipe (currently four are identified) and the drains in the centers of the two bowls that make up the Common Area have subsided, creating additional drainage problems.

For the past year the homeowners association here in River Oaks has been in contact with the City of Warrenville about the storm sewer problem. We have asked them to unplug the restrictor clogs, which they have done reluctantly. They have advised that River Oaks homeowners should pay for maintenance of these storm sewer lines and pay for any clearing of blockages that may occur. The City attorney believes that it is the responsibility of the homeowners here in River Oaks to take care of the City storm sewers here. The Board of ROIA has countered that ownership of the storm sewer system was transferred from the builder and accepted by the City of Warrenville back in 1989, according to City documents. In addition, the storm sewer underneath the Common Area does not simply serve River Oaks, but is part of an extended storm sewer system that handles water from Rt. 59 and nearby shopping areas. In fact the pipes had to be increased in size from the original planning to handle the City's requirements for this extended region.

William Price, a homeowner and lawyer in River Oaks, has sent the City several letters outlining arguments that it is the City's responsibility for dealing with this problem. The City attorney has responded each time that it is River Oaks responsibility.

The question becomes what can River Oaks do. If we accept responsibilty for the maintenance of the storm sewer system in the subdivision, this could require significant increase in dues, as well as possible special assessments levied against the homeowners. This could well balloon into major costs for the homeowners here, as we would have to handle a storm sewer system problem that handles waters beyond the subdivision. We believe that there is a valid objection for having River Oaks be responsible for repairing and maintaining a significant part of the City's storm sewer system that goes beyond the drainage requirements of River Oaks.

On Monday June 10th a number of River Oaks homeowners attended the City Council's Public Works and Infrastructure Committee of the Whole meeting in order to be part of the discussion of the River Oaks storm sewer problems. The attendance of River Oaks homeowners was excellent and we thank all of you who were there. We also would like to thank those who wrote to the City Council in advance of the meeting to advocate for help with the storm sewers.

The meeting began with a presentation by Phil Kuchler, the Deputy Director of Public Works, of the City's view of the storm sewer system in River Oaks. As part of this presentation, Mr. Kuchler included a color-coded map of what parts of the storm sewer system the City claims that they own and what part of the system the City claims that the homeowners own.

In the map of River Oaks above, the storm sewers marked in Red are those that the City is claiming that River Oaks owns. The storm sewers marked in Blue are the storm sewers that the City is laying claim to. Mr. Kuchler explained that the Red storm sewer between Lots 63 and 64, and the one behind Lots 3 through 8, begin their run at drains that take in storm waters from homeowners' back yards and take in no water from City right-of-ways. When the storm sewer drains are in the streets and take in street water, then the City owns those sections of the sewers. The City believes that the Red pipe under the Common Area out to the river is owned by the homeowners because in the Declaration of Covenants and Easements in River Oaks, the Common Area as owned by the homeowners includes "storm-water retention and detention facilities, and related equipment and drainage pipe if any". The pipe labled with the Green X is the pipe with the sinkholes above it.

After Mr. Kuchler presented his comments, almost a dozen River Oaks residents spoke about the situation. A main point was that the City of Warrenville owns the storm sewers in River Oaks and needs to take care of them. It was also noted that the homeowners in River Oaks have worked with the City in many ways for the past 30 years and that we hope we can continue to work through these problems constructively. Some other points raised included:

• When the drains in the Common Area are clogged, this becomes a public safety hazard
• For 30 years the City has taken care of the complete storm sewer system in River Oaks, including all Common Area pipes
• The storm sewer system in River Oaks is inundated with off-site storm waters from the Rt. 59 and Batavia Road area.
• To accommodate the offsite water, the City increased run-off between Lots 39 and 40 directly into the river, rendering the Lower Common Area there unusable.
• During heavy rains, the drain behind Lot 60, which funnels the offsite water into River Oaks, overflows and sends water directly into adjacent yards and creates a flooding potential for these homes.

After River Oaks made its comments, members of the City Council responded. Aldermen Goodman, Bevier, Davolos and Aschauer all asked questions of Public Works regarding the situation of detention ponds in Warrenville. Public Works admitted that no regular check on the condition of the pipes in River Oaks has been done. The City Administrator John Coakley said that there are about 100 detention/retention ponds in Warrenville, and that many private homes have storm water drains on their private property which they have to maintain. He said that it was not feasible for the City to assume custody of of the ponds or drains on private property. Aldermen Goodman and Bevier discussed if the Private Property Drainage Assistance program should be extendable to the River Oaks situation. Alderman Goodman asked that Public Works work at better communications with River Oaks in the future. Alderman Aschauer asked that the drains up-sewer from River Oaks be inspected to see if any restrictors have been removed which would affect the volumne of water being sent into River Oaks. Mayor Brummel did warn River Oaks that although they would like to help, it is not possible to extend help whenever it might be asked for due to limited funds. The Chair of the Meeting, Alderman Barry (alderman from the 4th Ward, which is the ward River Oaks is in) spoke last. She said that she would vote against any motion to have the City assume responsibility for all of the storm sewers in River Oaks. She explained that as a 40 year resident of Emerald Green, she and her fellow residents each had to pay a special assessment of $700 in 1988 for the City to take over all the public utilities (roads, lights, streets and sewers). When Emerald Green was built, these were not built to code and were originally owned by their HOA. She also pointed out that if something benefits the subdivision, whoever owns it, then the subdivision needs to handle the maintenance and to increase dues regularly in order to act in a responsible manner when these problems arise.

The meeting concluded with requests by the City Council for more information on the situation from Public Works about this storm sewer system. Because Public Works says that the City does own some of the sewer pipes in River Oaks, including the one with the sinkholes, they will be coming out to survey those pipes. Since the recent Memorial Day flood caused by the blockage of one of these pipes by three roots, they will also evaluate lining the pipe to keep it free of roots again. They will also be checking the condition of the storm drains and restrictors from the Rt. 59 and Batavia areas that drain into River Oaks. Any further discussions and motions were postponed for the time being.

River Oaks Board members did a walk through of the subdivision with representatives from the City in July. The City's studies of the storm sewers in River Oaks had been partially completed. The upstream storm sewers outside of the subdivision that send storm drainage into River Oaks had been partially surveyed. More information is needed before the City determines what is needed to repair the storm sewers in River Oaks that the City claims as their own. They maintain that the storm sewer under the lower bowl of the Common Area is the responsibility of the homeowners and that there are problems with the restrictor there that River Oaks must repair with their own funds. See the latest email exchanges with the City by following the links below.

Information on the Storm Sewer issue in River Oaks:

NEW! September 2019 City Emails

City Maintenance Requirements

Drainage Into River Oaks

City Council Info Packet Prepared for June 10, 2019 Meeting

Letters To City from River Oaks June 2019

Flood Plain Hearing 1984

City Council Hearing - River Oaks Drainage 1985

Transfer of Storm Sewers to City 1989

Common Area Engineering Report Summary 2005

Plat of River Oaks showing easements

Plat of River Oaks showing storm sewers

Plat of River Oaks storm sewers with changes

Summary of Email exchanges with City of Warrenville

ROIA Emails to City:

April 29, 2019 Email to City of Warrenville Officials:

From: Susan Price
To: Kuchler, Phil
>Cc: Mentzer, Ron ; Barry, Clare ; Hocking, Kristine ; Goodman, Leah ; Bill Price ; davidbrummel@warrenville.il.us; directors@riveroakshome.org; barbara.adams@hklaw.com
Subject: Re: Fw: Roia and the city

Dear Mr. Kuchler et al.:

It is now nearly 6 months since you responded that you were reading our communication, and more than 2 since my husband, Attorney Bill Price, sent a letter in response to the city attorney's response, explaining in great detail why the repair of municipal storm drains is the city's responsibility, whether or not they drain our commons area. We have had no communications from either the city attorney or anyone else since that Feb 26 email, which I am forwarding to all of you as a separate email.

In the meantime, the ground above the defective storm drain pipe has developed a fourth sinkhole over the course of the winter, adding to the 3 that were present last summer, although, due to slumping with the freeze-thaw cycle, none are as deep as they were by the middle of last summer. However, as long as dirt continues to wash from these areas into the cracked [we assume] pipe below them, the main drain will continue to fill with mud and keep our commons area drain from releasing stormwater as it should.

I am attaching a photo of the line of 4 sinkholes, and one taken this afternoon of the water that has accumulated in the commons area after the rain overnight. Until two years ago, we did not have issues with the commons area drain more than once or twice a decade. In the past two years, during which time we have had increasingly severe problems with our drain clogging, we have also seen erosion around the main commons area drain and, in the past year or so, the development of the sinkholes along the line of one of the storm sewers that connects to that drain. We want to know what the city plans to do to alleviate this problem as it has already become a serious, permanent danger, between the risks of injury from people tripping over or otherwise injuring themselves on the sinkholes and the hazards of having open water in what was supposed to be a dry open area.

Respectfully,
Susan NC Price
President
River Oaks Improvement Association

November 10, 2018 Letter to City of Warrenville Officials:

David Brummel, Mayor
City of Warrenville
Via email davidbrummel@warrenville.il.us
RE: Storm Drain Repairs, River Oaks
Dear Mayor,

  1. This office represents the River Oaks Improvement Association. The Association requests that the City, as it has in past instances, repair the city property (storm drains) in the commons area, blockages in which are causing a pond to form in the upper retention area. (See cc of photo attached.)

  2. Please note that the drains were transferred to city ownership in 1989 (see deed of transfer cc attached).

  3. Liability for such improvements, once accepted for city ownership, resides in the city, even if the city did not build same, cf. Burford v. Village of LaGrange, 90 Ill.App.2d 210 (cc attached.).

  4. Note that the Plan Commission considered the design for the detention area and the City Engineer had input in the final design, with City maintenance of silt traps expected and intended. (Plan Commission minutes and City Council minutes attached), and that the Plat for what was then Country Ridge Subdivision (now River Oaks) included the storm drains. Plat copies can be provided, which would further document the plat recording shown as city acceptance in the Burford case, but the transfer document and city discussions should be clear evidence of transfer of storm drains to city ownership and responsibility without additional proof.

  5. The storm drains belong to the city, and should be maintained by the city to keep the detention area able to take in all storm water and drain to dry storage areas, as originally planned and built. Your assistance in having maintenance done by the city to clear the current blockage would be much appreciated.

Respectfully Submitted,
William A. Price Attorney at Law

February 25, 2019 Response to City Attorney

Barbara A. Adams Holland & Knight 131 South Dearborn Street, 30th Floor Chicago, IL 60603

RE: River Oaks Improvement Association

Dear Ms. Adams,

1. We are in receipt of your letter of November 21, 2018 (cc attached), to which this note responds, and again requests reconsideration of the City's position on ROIA commons area storm drains and sewers.

2. Your letter turns on one question: whether the commons area is a "public right of way" or private property belonging to and for the benefit of the association. Your note suggests the transfer of property of 11 January 1989 was only of property under public rights of way, and that the Association remains responsible for all maintenance of drains under the private property in the Commons area.

A few items:

a. The Common Area is, as noted in your letter, the property of the Association, per the Declaration of Condominium.

b. The Association and homeowners are, per para. 3.01 of that declaration, permitted to create easements for utilities, including sewers, while retaining rights of ingress and egress for maintenance of same. An easement can be for public utilities as well as being located inside private property.

This makes the "public" versus "private" property argument of your letter inapplicable. The question is not whether the easement is "public", but whether the property at issue (storm drains and sewers) are public property, or the property of the Association. The Jan. 11, 1998 transfer explicitly put storm drains and sewers title in the City, not the Association, and under Burford v. Village of LaGrange, 90 Ill. App. 2d 210, cited in my original letter, where a city or village accepts title, they are responsible for maintenance of their own property.

The city's reference to the Development Agreement does not change this issue. The agreement, as her letter notes, notes that the Association has a duty to maintain the "common area". That reference does not include the sewers and storm drains under such common area.

Further, the city's interpretation varies from the uniform practice of the City and the Association from 1998 until 2018 under the Development Agreement. The Association has routinely notified the city and the city routinely maintained common area storm drains until this year, at city expense. We have multiple documents showing this, and witnesses who can testify as to same.

The remarks on p. 15 of the Plan Commission testimony referenced in my prior letter, and attached here, show that the original interpretation of the Arden corporation in entering into the development agreement was that "in the design of the storm sewer system, there will be silt traps where the manholes are. And these are cleaned, on a regular basis, by the City just as in any other development in the City of Warrenville." This was confirmed in the Plan Commission hearing at p. 29 by a city witness, who referred to a machine they used for same funded by an EPA grant.

The detention areas were designed as a part of a storm drainage system that included more than the common areas. As again noted in the Plan Commission Hearing, page 27-28, a sewer from lots across the street in the development and catchment basins would guide water to the detention areas in the common area.

Public benefit of the drainage system as designed further supports public ownership: the plat of survey (which we can and should reproduce for the city) shows storm drainage benefiting more than the River Oaks area, i.e. the flood plain (removals compensated in commons ponds, see p. 10-11 remarks in Plan commission hearing). As was also noted in the Plan Commission hearing, p. 31, the area West of 59 has drainage across River Oaks which the site has to accept. In the plat, there is a storm drain specified by the City engineer that addresses some of this water -- not water created by River Oaks.

The plat shows an "Open Space Drainage Utility And Access Easement" in the commons area. See attached. The storm sewers in this public benefit easement were transferred to the city. The city has a duty to maintain its property, and accepted that duty and implemented same until 2018. This duty is routine for utilities that have utility property in utility easements on parcels that otherwise are on private property, and is the same for city property which is in a drainage easement area otherwise owned by the Association.

The city's changed position does not change the original agreements or the city's duties in law. By those agreements, the Association has the duty of maintaining the common areas, including trees, the retaining wall, the dividing wall between ponds, and other landscaping. The City has the duty to maintain the sewers, which do not belong to the Association.

If the City maintains that the sewers and drains in the Common Areas are exclusively the property of the Association, or are to be maintained for private benefit, not the general public, whatever their ownership, then the Association will take appropriate action for clarification of such rights, or will otherwise act in accordance with the City's determination, making any maintenance determinations for the benefit of any drainage needs of the common association property, but not based on any more general plan or system of city drainage. Their maintenance will, in such case, be addressed in accordance with their fiduciary duty to minimize expenses to Association members. We submit that the previous interpretations of the parties as to their respective rights and duties are preferable to this determination. For the reasons above stated, the Association respectfully requests reconsideration and reversal of the City's decision to abandon its responsibility to maintain ROIA commons areas drains and sewers.

Respectfully Submitted,

William A. Price
Attorney at Law
P.O. Box 1425
Warrenville, IL 60555
Tel/Fax 1-800-630-4780
email: wprice@growthlaw.com

April 29, 2019 Email to City of Warrenville Officials:

From: Susan Price

To: Kuchler, Phil

Cc: Mentzer, Ron ; Barry, Clare ; Hocking, Kristine ; Goodman, Leah ; Bill Price ; davidbrummel@warrenville.il.us; directors@riveroakshome.org; barbara.adams@hklaw.com

Subject: Re: Fw: Roia and the city

Dear Mr. Kuchler et al.:

It is now nearly 6 months since you responded that you were reading our communication, and more than 2 since my husband, Attorney Bill Price, sent a letter in response to the city attorney's response, explaining in great detail why the repair of municipal storm drains is the city's responsibility, whether or not they drain our commons area. We have had no communications from either the city attorney or anyone else since that Feb 26 email, which I am forwarding to all of you as a separate email.

In the meantime, the ground above the defective storm drain pipe has developed a fourth sinkhole over the course of the winter, adding to the 3 that were present last summer, although, due to slumping with the freeze-thaw cycle, none are as deep as they were by the middle of last summer. However, as long as dirt continues to wash from these areas into the cracked [we assume] pipe below them, the main drain will continue to fill with mud and keep our commons area drain from releasing stormwater as it should.

I am attaching a photo of the line of 4 sinkholes, and one taken this afternoon of the water that has accumulated in the commons area after the rain overnight. Until two years ago, we did not have issues with the commons area drain more than once or twice a decade. In the past two years, during which time we have had increasingly severe problems with our drain clogging, we have also seen erosion around the main commons area drain and, in the past year or so, the development of the sinkholes along the line of one of the storm sewers that connects to that drain. We want to know what the city plans to do to alleviate this problem as it has already become a serious, permanent danger, between the risks of injury from people tripping over or otherwise injuring themselves on the sinkholes and the hazards of having open water in what was supposed to be a dry open area.

Respectfully,

Susan NC Price
President
River Oaks Improvement Association