Jonathan Bilyk Mar. 30, 2016, 3:25pm

A federal judge has refused to apply the brakes to the Illinois Tollway’s plans to improve and extend the Elgin-O’Hare Expressway, saying one of the country’s largest railroad operators jumped the green light in asking the court to block the Tollway from even starting up the process of taking land from one of the company’s railyards for the new highway.

On March 29, U.S. District Judge Matthew F. Kennelly dismissed the lawsuit brought by Canadian Pacific Railway Company against the Illinois Toll Highway Authority, which argued the Tollway lacks the legal authority to even attempt to use its eminent domain powers to seize land from the railway’s Bensenville rail yards to pave the way for a new leg of its planned new expressway.

“The (Toll) Authority’s plans for the EOWA (Elgin-O’Hare Western Access) project continue to evolve, and it appears to still be interested in purchasing some portion of the Bensenville Yard from Canadian Pacific,” Kennelly wrote. “Because the Court cannot determine the extent to which railroad transportation would be prevented or unduly interfered with by a hypothetical condemnation of the land the Authority wishes to acquire, any adjudication of this dispute would amount to an advisory opinion.

“This, the Constitution does not permit,” the judge said.

The case landed before Kennelly in November 2015, when Canadian Pacific filed suit in Chicago federal court, asking the court to back its arguments that federal interstate commerce laws effectively nix the Tollway’s eminent domain powers over land owned and used by railroads for shipping freight.

The railway had brought the suit as the Tollway continued with its work to both improve the existing Elgin-O’Hare Expressway and extend the highway under its Western Access project. According to the Tollway, the project would cover 17 miles of roadway, including 15 new or improved interchanges along Illinois Route 390, which the Tollway says is now “formerly known as the Elgin O’Hare Expressway.” The project also would entail extending the highway along Thorndale Avenue to O’Hare International Airport and building a new roadway around the airport’s western edge to connect Interstates 90 and 294.

Canadian Pacific’s complaint centered on the Tollway’s plans for the north-south connector road. Under the plans posted by the Tollway, the portion of the proposed new roadway running south from Irving Park Road to I-294 would include a new interchange at the new highway’s junction with Franklin Avenue/Green Street in Bensenville, which Canadian Pacific said would take the road through the railway’s Chicago rail hub and put the new interchange at the southern end of the more than 300-acre rail yard.

The railway said the Tollway has notified the railroad of its intent to use its eminent domain powers to take about 36 acres of land, including 28 acres for permanent use for the road. According to the Tollway, the north-south connector road would be projected for completion around 2024.

The railway’s complaint asked the court to block the Tollway’s condemnation attempt, saying federal law gives it the legal upper hand, as the railway argued, if the Tollway is allowed to take its land, it would interfere with operations at the rail yard, which serves as Canadian Pacific’s only Chicago-area terminal and switching yard and processes 2,200 rail cars per day, or more than 800,000 annually. The railway said the Tollway’s proposal would be an “impermissible burden” on interstate commerce both now and in the future, and so should be prohibited.

The railway also argued the Tollway’s potential condemnation was spurred by a desire to grab the land needed for the road in one action, rather than potentially politically messy attempts to piece together the needed real estate from other owners across Franklin Avenue/Green Street from the rail yard.

The Tollway, in response, asked the judge to dismiss Canadian Pacific’s lawsuit, saying the action had come too early and was not “ripe,” as the Tollway had not yet actually launched any condemnation action against the rail yard, meaning there was “no way of knowing whether its actions will cause such interference” as Canadian Pacific had alleged.

Canadian Pacific had, in turn, argued the threat of condemnation alone made the “actual interference … imminent and certain.” Canadian Pacific noted in its filings “that each and every proposed plan the Authority has come up with envisions purchasing or condemning more than 35 acres of land contained within the Bensenville Yard, even though Canadian Pacific has repeatedly told the Authority that the land is not for sale” and the Tollway’s existing construction activity on the Elgin-O’Hare project means the Tollway “must either convince the Court that its present plan does not somehow interfere with railroad operations, or it must figure out how it is going to build the south leg of the new toll road.”

But the judge said the Tollway had the better of the argument, for now, and the lawsuit had come too early in the process to be allowed to continue.

“Canadian Pacific's refusal to negotiate a purchase price does not render the potentiality of eventual condemnation proceedings imminent, nor does Canadian Pacific's belief that speedy judicial resolution is in the best interest of the Authority and its EOWA project,” the judge wrote.

Canadian Pacific was represented in the action by the firm of Daley Mohan Groble, of Chicago. The Tollway was represented by Burke, Burns & Pinelli, of Chicago.

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Organizations in this Story

Canadian Pacific Railway
120 South 6th Street
Minneapolis, MN 55402

Illinois Tollway
2700 Ogden Ave
Downers Grove, IL 60515

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