Bensenville homeowners, Chicago skirmish in Cook court over right to sue City Hall for O'Hare air traffic

By Jonathan Bilyk | Jan 10, 2017

The legal dogfight between the city of Chicago and dozens of Bensenville homeowners, who say air traffic from O'Hare's busy new runway has demolished their quality of life, has returned to Cook County court, where attorneys for City Hall and the homeowners are now skirmishing over the question of precisely when the homeowners’ problems began, and whether that should determine their ability to sue the city for its decision to steer an endless stream of roaring aircraft flying low over their homes each day.

The two sides have squared off in Chicago courtrooms for almost a year, after homeowners again locked on to City Hall in an attempt to secure a judgment ordering the city to pay them for the damage to their homes and lifestyles the homeowners allege has been wrought by the opening of the new runway.

At that time, the residents filed suit in Cook County Circuit Court in February 2016, alleging the opening of the new runway at O’Hare International Airport and the ensuing heavy air traffic, flying 500 feet or less above their homes, constituted an illegal taking of their property under the U.S. and Illinois constitutions.

That complaint had followed earlier litigation brought by the residents against the city, which had been dismissed by a Cook County judge, but which had not included the homeowners’ so-called “inverse condemnation” and illegal takings claims.

In response to the new complaint, the city took the case to federal court, saying the homeowners’ claims under the U.S. Constitution made the federal court a better venue in which to consider the matter. The city then moved to dismiss the case again.

However, before a federal judge could rule on that dismissal request, the Bensenville homeowners persuaded the judge to send the case back to Cook County court.

In October, the city’s attorneys again asked the judge to dismiss the case, arguing the homeowners filed too late, as Illinois law gave them only until 2014 – a year after the new runway first opened – to bring their legal action against the city.

The homeowners, however, maintained their argument the clock on the statute of limitations should not begin at the time of the runway’s opening.

They noted air traffic built gradually in the months following the runway’s opening. And they have alleged city officials repeatedly misled or even deceived them and the general public to believe City Hall had plans in place to relieve the impacts of the noise on those living in the flight path from the new runway.

The homeowners said the date at which the air traffic reached a level at which it severely impacted their rights to the enjoyment of their property, and at which the homeowners became aware that the city had no intention of doing anything about the situation, fell sometime during the summer of 2015. And that, they argued, is when the one-year statute of limitations began to run.

“The precise date on which the statute of limitations began to run for each Plaintiff is a fact intensive inquiry that may vary on a case by case basis, improper for a motion to dismiss,” the homeowners wrote in their Dec. 30, 2016, response to the city’s motion to dismiss. “However, the … allegations clearly point to the summer 2015 as the time when the overflights of Plaintiffs’ properties became unbearable and triggered a legally cognizable taking.”

The city, however, has argued the contention officials deliberately misled or lulled the homeowners into waiting too long to file their lawsuit cannot fly. The city’s attorneys said the statements cited by the homeowners were made by officials to “the press” or to “the public,” and not directly to the homeowners. Nor did city officials ever promise to relieve the homeowners’ situation, the city argued.

“The statements quoted … describe elements of the normal political process when communities are concerned about the impacts of government action: holding public hearings and discussions, installation of noise monitors, or the collection of data, all part of an ongoing analysis,” the city wrote in its filing. “The City employees did not commit to or promise Plaintiffs specific mitigation, resolution of potential legal claims, or a definitive reduction of the alleged noise impacts designed to address Plaintiffs’ specific injuries, and certainly not closing the Runway.”

Chicago City Hall is represented in the action by attorneys with the firms of Kaplan Kirsch & Rockwell LLP, of Denver, Colo., and lawyers with the city’s Department of Law.

The Bensenville homeowners are represented by attorneys Michael I. Leonard, John P. Killacky and Ethan E. White, of the firm of LeonardMeyer LLP, of Chicago.

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