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Tuesday, March 13, 2018

Lawsuit Challenging Recapture Ordinance Barred Because it Was Untimely

Property owners filed a lawsuit against a municipality challenging the legality of a recapture ordinance that imposed recapture fees on future subdivision of their property. The municipality filed a motion to dismiss the case, arguing that the case was filed after the statute of limitations expired, so it was not timely and that the recapture ordinance was valid. 

The recapture ordinance was approved by the village board in 2011. Under the recapture ordinance, the village sought to recover its costs of putting in certain public improvements that benefited properties near these improvements. The trigger to pay the recapture was subdivision of the benefited properties.

Six years after the recapture ordinance was approved, plaintiffs filed a complaint against the village claiming that the recapture agreement was unenforceable because it was signed only by the village, plaintiffs had no notice of it, and because plaintiffs were the only property owners subject to the recapture payments. 

The village first argued that the five year statute of limitations had passed, so the suit should be dismissed. The court agreed, finding that the five year statute of limitations for actions to "recover damages" applied. The court determined that the approval of the ordinance was the trigger for the statute of limitations, and the time period for challenging the ordinance expired 5 years after the ordinance was passed.

Because the case was not filed within the 5 year statute of limitations, the court did not address plaintiffs' claims that the village did not have authority to adopt the ordinance. Mikenas v. Village of Westmont, 2018 IL App (2d) 170539-U.

Post Authored by Julie Tappendorf


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