Village of Bensenville v. City of Chicago

• Decision Date: 07 January 2009
• Docket Number: No. 2-08-0769.,2-08-0769.
• Citation: 389 Ill. App. 3d 446,906 N.E.2d 556
• Parties: The VILLAGE OF BENSENVILLE, Roberta Baird, William Baird, Arlene Benson, Bernardo Flores, Gail Flores, Nelson Marrero, and Robert Rackow, Plaintiffs-Appellants, v. The CITY OF CHICAGO, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

906 N.E.2d 556

389 Ill. App. 3d 446

The VILLAGE OF BENSENVILLE, Roberta Baird, William Baird, Arlene Benson, Bernardo Flores, Gail Flores, Nelson Marrero, and Robert Rackow, Plaintiffs-Appellants, v. The CITY OF CHICAGO, Defendant-Appellee.

No. 2-08-0769.

Appellate Court of Illinois, Second District.

January 7, 2009.

Rehearing Denied May 27, 2009.

Phillip A. Luetkehans, Robert W. Funk, Schirott & Luetkehans, P.C., Itasca, Joseph V. Karaganis, Barbara A. Magel, John W. Kalich, Karganis, White & Magel, Ltd., Chicago, Gerald M. Gorski, Aaron H. Reinke, Gorski & Good, Wheaton, for Plaintiffs-Appellants.

Mara S. Georges, Corporation Counsel of the City of Chicago, Benna Ruth Solomon, Deputy Corporation Counsel, Myriam Zreczny Kasper, Chief Assistant Corporation Counsel, J. Mark Powell, Assistant Corporation Counsel, Chicago, for Defendant-Appellee.

Justice O'MALLEY delivered the opinion of the court:

Plaintiffs, the Village of Bensenville, and Bensenville residents Roberta Baird, William Baird, Arlene Benson, Bernardo Flores, Gail Flores, Nelson Marrero, and Robert Rackrow (Residents), appeal the orders of the circuit court of Du Page County dismissing counts I through IV of their five-count second amended complaint against defendant, the City of Chicago (Chicago), and dissolving a preliminary injunction barring Chicago from demolishing structures in Bensenville pursuant to its plan to expand O'Hare International Airport (O'Hare). We affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

The following facts set the backdrop of this matter. We will provide additional facts as needed in our discussion of the issues.

In 2001, Chicago, as owner and operator of O'Hare, proposed the O'Hare Modernization Program (OMP), which would reconfigure and expand O'Hare's facilities, with the purpose of streamlining air traffic and reducing flight delays. The primary measure in the OMP is the installation of parallel runways to replace O'Hare's existing body of intersecting runways, to which the Federal Aviation Administration (FAA) has attributed much of O'Hare's inefficiency. The OMP outlines a two-phased "Master Plan" for expansion. Phase 1 calls for the expansion of an existing runway, the reconfiguration of taxiways and a concourse, and the construction of two new runways, a new western satellite terminal, and an underground automated transit system or "people mover" connecting the new satellite terminal with the main terminal.¹ Phase 2 envisions the expansion of another existing runway and the construction of two additional new runways as well as a "world gateway terminal."

In 2003, the Illinois General Assembly enacted the O'Hare Modernization Act (Act) (620 ILCS 65/1 et seq. (West 2006)). In its prefatory findings, the legislature determined that "O'Hare cannot efficiently perform its role in the State and national air transportation systems unless it is reconfigured with multiple parallel runways." 620 ILCS 65/5(a)(2) (West 2006). The legislature found it "essential" that the OMP "be completed efficiently and without unnecessary delay" and that "acquisition of property as required for the [OMP] be completed as expeditiously as practicable." 620 ILCS 65/5(a)(6), (a)(7) (West 2006). To carry out Chicago's expansion efforts, it is empowered by the Act to "acquire by gift, grant, lease, purchase, [or] condemnation * * *, or otherwise any right, title, or interest in any private property," including property outside Chicago's boundaries. 620 ILCS 65/15 (West 2006). The Act allows acquisition of property "that [Chicago] reasonably determines will be necessary for future use, regardless of whether final regulatory or funding decisions have been made." (Emphasis added.) 620 ILCS 65/15 (West 2006). The Act also contains a broad preemption clause providing: "Airport property shall not be subject to the laws of any unit of local government except as provided by ordinance of [Chicago]." 620 ILCS 65/25 (West 2006).

The OMP identifies 615 parcels in Bensenville that Chicago believes it must acquire in order to complete the expansion project at O'Hare. These parcels, situated off the southwest corner of O'Hare, are collectively identified by the OMP as the "Southwest Acquisition Area" (Acquisition Area). The properties in the Acquisition Area are variously improved with residential, commercial, and industrial structures. Plaintiffs all own properties in the Acquisition Area. Chicago has initiated eminent domain proceedings against those properties. This suit, City of Chicago v. Forest Preserve District of Du Page County, No. 06-ED-111, is pending before Judge Stephen J. Culliton in the circuit court of Du Page County.² As for the remaining properties in the Acquisition Area, it appears that Chicago has acquired the great majority of them, though precisely how many is unclear. It also appears that some were acquired through eminent domain proceedings and some through voluntary sales, but again the respective numbers are not clear from the record.

In 2006 and 2007, Chicago drafted plans for demolishing structures it acquired or planned to acquire in the Acquisition Area. Chicago also developed a "Demolition Health and Safety Plan," which described Chicago's measures for insuring that the demolition would proceed without risk to public safety.

On June 28, 2007, plaintiffs initiated the present action by filing a two-count complaint against Chicago. Count I sought a declaratory judgment that Chicago's demolition plans must comply with Bensenville's recently enacted Demolition Ordinance, which provides detailed permit requirements for all demolition within the Bensenville village limits. Bensenville Village Code § 9-6a-2(F) (eff. February 27, 2008). The Demolition Ordinance provides that any application for a demolition permit must include plans for replacing the structures planned for demolition. Bensenville Village Code § 9-6a-2(B) (eff. February 27, 2008). The Demolition Ordinance contains a specific exception for Chicago's demolition of structures in the Acquisition Area, provided Chicago demonstrates that the demolition is "necessary" to accomplish the OMP. Bensenville Village Code § 9-6a-2(C)(2) (eff. February 27, 2008).

Count II of plaintiffs' complaint alleged that demolition under the plans proposed by Chicago would constitute a public nuisance, as it would "expose * * * Bensenville residents and their families to toxic or hazardous substances and chemicals released by the demolition."

Plaintiffs simultaneously moved for an injunction barring Chicago from demolishing any properties in the Acquisition Area during the pendency of the lawsuit. Plaintiffs alleged that Chicago planned to demolish the properties without having quantified all potentially harmful substances in the structures and soils of the properties or designed appropriate measures to control the release of such substances into the air or ground water during demolition. Plaintiffs attached to their motion sworn declarations from Kenneth Mundt and Mark Travers, both employees of Environ, a firm retained by Bensenville to assess the health risks posed by demolition of structures in the Acquisition Area.

Mundt, an epidemiologist, averred in his declaration that the demolition as planned by Chicago would "create[] a significant potential endangerment to the health and safety of Bensenville residents and their families." Mundt stated that he had reviewed Chicago's plan for controlling emissions of harmful substances during demolition and found it inadequate to protect either demolition workers or Bensenville residents who live in the Acquisition Area or in the vicinity. Mundt identified hazardous substances that are likely present in the structures or soils in the Acquisition Area:

"Based on the mix of industrial, commercial, and residential structures in the Acquisition Area (as well as the historical uses of the area), it is highly likely that the following hazardous or toxic substances are present in the structures to be demolished (or in the surrounding soils and groundwater): lead, mercury, pesticides, insecticides and herbicides, polychlorinated biphenyls (PCBs), chemical wood preservatives such as chromate copper arsenate, pentachlorophenols, creosote, paint and solvent compounds containing volatile organic compounds, petroleum wastes containing benzene and PAHs (polycyclic aromatic hydrocarbons), pathogenic mold spores, and septic system wastes containing bacterial and viral pathogens."

Mundt stated that these substances can, depending on their concentrations, cause "severe adverse health effects including lung diseases, central nervous system damage, learning disabilities in children, cancer, birth defects, liver damage, and damage to reproductive systems." Mundt cautioned that a full list of the hazardous substances in the Acquisition Area was not possible until the area was comprehensively investigated and tested.

Mundt described a three-step process that he recommended be completed before demolition. The first step is a comprehensive area-wide field investigation and sampling. This step involves identifying "the locations, types, and quantities of hazardous or toxic materials in and around the structures to be demolished." Mundt contrasted this approach with Chicago's proposed method of testing, which he criticized as "start-stop" because Chicago intended to test and demolish piecemeal rather than test the site in full before commencing demolition. Mundt opined that Chicago's method was inadequate because it failed to consider the additive or cumulative effects of releases from multiple parcels or structures.

The second step, according to Mundt, is to develop a baseline risk assessment, which involves using data from the field-testing stage to calculate the degree to which demolition will expose to hazardous substances demolition workers and residents living in the Acquisition Area or its vicinity. If the exposure...