A Cook County judge has nearly grounded a lawsuit brought by Bensenville homeowners against the city of Chicago, saying the homeowners have more work to do to prove they can sue the city for directing a steady stream of aircraft over their homes every day from a new runway at O'Hare.
Dozens of Bensenville homeowners say air traffic from O'Hare International Airport’s busy new
runway has destroyed their quality of life. They filed suit in Cook County
Circuit Court in February 2016, alleging heavy air traffic from a new runway at
O’Hare - flying 500 feet or less above their homes - constituted an illegal
taking of their property under the U.S. and Illinois constitutions.
complaint had followed earlier litigation the residents brought against the
city, which a Cook County judge dismissed, but which had not included the
homeowners’ so-called “inverse condemnation” and illegal takings claims. The
city took the case to federal court, saying the homeowners’ claims under the
U.S. Constitution made the federal court a better venue. The city then moved to
dismiss the case again.
before a federal judge could rule on that dismissal request, the 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
Thomas R. Mulroy issued his order on that request Jan. 31 in Chicago. He noted
that while regular flights less than 500 feet above privately owned land do
constitute government claiming a navigation easement, there is a lack of legal
precedent establishing when that easement of flight crosses over into an
homeowners say that while the runway opened in October 2013, they relied on the
city’s public statements about plans to abate the noise.
was not until the summer of 2015 that plaintiffs realized their situation was
permanent,” Mulroy wrote, citing a portion of their complaint in which the
homeowners allege “the city intentionally engaged in a calculated pattern of
conduct designed to appease and mislead the residents into delaying in
asserting their rights by way of this litigation and otherwise.”
the homeowners didn’t allege specific dates of when air traffic increased –
whether it was when larger aircraft used the runway or when they noticed planes
flying at lower altitudes - Mulroy agreed to grant the city’s motion to dismiss
the homeowners’ complaint without prejudice.
the homeowners alleged unjust enrichment because the city derives an economic
benefit from the use of their properties.
The city, however, moved for dismissal, arguing
protection under the Tort Immunity Act because there was no contract between
the city and homeowners for a court to remedy. The homeowners asked for relief
in the form of “quasi-contract,” which Mulroy defined as “an action for damages
against the city” that “does not fall under the Tort Immunity Act’s contract
exception.” Mulroy said the homeowners are barred from asserting that claim, and dismissed the count with prejudice.
granted the homeowners until Friday, Feb. 24, to file an amended complaint for
their pursuit of compensation for loss of property value. A status hearing is
set for March 1.
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.
Bensenville homeowners are represented by attorneys Michael I. Leonard, John P.
Killacky and Ethan E. White, of the firm of LeonardMeyer LLP, of Chicago.