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Neri Brothers Construction v. Village of Evergreen Park

Case Date: 12/02/2005
Court: 1st District Appellate
Docket No: 1-05-0431 Rel

                                                                                                                                                       THIRD DIVISION
                                                                                                                                                       FILED: December 7, 2005

No. 1-05-0431 
NERI BROTHERS CONSTRUCTION, an Illinois
Corporation,

Plaintiff-Appellant,

v.

VILLAGE OF EVERGREEN PARK, a Municipal
Corporation; JAMES J. SEXTON, in his
capacity as Mayor of the Village of
Evergreen Park; JEROME BOSCH, CAROLE E.
KYLE, MARK MARZULLO, JAMES A. McQUILLAN,
MARK T. PHELAN, and NORBERT F. SMITH,
in their capacities as Trustees of the
Village of Evergreen Park; MATTHIAS
DeLORT, in his capacity as
Administrative Adjudication Hearing
Officer of the Village of Evergreen
Park; and W.T. HARRIS, as Administrator
for the Village of Evergreen Park's
Code Hearing Unit.

Defendants-Appellees.

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)		 APPEAL FROM THE
CIRCUIT COURT OF
COOK COUNTY

 

 

 

 

 

 

 

 

HONORABLE
THOMAS F. CARMODY,
JUDGE PRESIDING.


PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

This is an appeal by the plaintiff, Neri Brothers Construction(Neri), from an order of the Circuit Court of Cook County whichconfirmed a decision of a hearing officer employed by the Villageof Evergreen Park (Village) imposing a fine and assessing remedialcosts against Neri pursuant to the Village's "spiller-pays"ordinance. For the reasons which follow, we affirm in part andreverse in part.

The record reflects that the parties entered into stipulationsduring the course of the administrative proceedings and, as aconsequence, the relevant facts are undisputed.

Abbey Paving (Abbey) engaged Neri as a subcontractor toinstall sewer lines and a water main underneath the Evergreen ParkShopping Plaza parking lot. Prior to commencing work on theproject, Neri's president, Nick Neri, and Abbey's president, JosephMadden, both contacted the Joint Utilities Location Information forExcavators ("JULIE"), the "State-Wide One-Call Notice System" (see220 ILCS 50/4(d) (West 2002)), and requested the location andmarking of all utilities in the area of the work to be performed.

When Nick Neri arrived at the work site on May 27, 2003, therewere markings present for underground water pipes, sewer lines,telephone wires, gas lines, and electric wires. The location ofthe gas lines were indicated by yellow paint. Nick Neri commencedthe excavation using a backhoe/loader. When he reached a depth oftwo to three feet, the backhoe struck a two-inch plastic gas linewhich had not been marked. There were no markings in the vicinitywhich would have indicated the presence of the gas line; theclosest gas line marking being 50 feet from the location where hestruck the line.

After hitting the gas line, Nick Neri immediately called"911", reported the ruptured line, and removed his equipment fromthe area. The Village's fire department and public work'sdepartment responded to the call along with assistance from the OakLawn and Roberts Park fire departments. The parties stipulatedthat the "reasonable and necessary costs" expended by the Villageto mitigate and abate the discharge of natural gas totaled $7,860.

The Village issued Neri a citation pursuant to its "spiller-pays" ordinance, Evergreen Park Municipal Code sections 7-156through 7-161, which provides as follows:

"ARTICLE V. DISCHARGE OF HAZARDOUS MATERIALS

Sec. 7-156. Definitions

The following words, terms and phrases, when used inthis article, shall have the meaning ascribed to them inthis section, except where the context clearly indicatesa different meaning:

Occurrence means any discharge or threateneddischarge of hazardous materials.

Responsible party means any person who owns, leases,operates or controls any facility, equipment or vehiclesfrom which a discharge of hazardous materials hasoccurred or from which such a discharge has threatened tooccur.

Cross reference - Definitions and rules ofconstruction generally,