Bensenville homeowners cleared to continue takings lawsuit vs Chicago over O'Hare air traffic

By Jonathan Bilyk | Jun 8, 2017

A Cook County judge has cleared dozens of Bensenville homeowners to continue their lawsuit against the city of Chicago for allegedly trespassing on their property rights when the city redesigned runways at O’Hare in 2013, sending a steady growing stream of air traffic over their homes daily since.

On June 7, Cook County Circuit Judge Thomas Mulroy denied the attempt by Chicago city attorneys to dismiss the legal action that has followed the opening of the newest runway at O’Hare International Airport.

The residents have claimed in the years since noise from the aircraft taking off and landing on the new runway, usually 500 feet or less above their homes, has demolished their quality of life. The residents claim the problems from the new runway constitute an “inverse condemnation,” or illegal taking of their property under the U.S. and Illinois constitutions.

The homeowners had filed suit in 2016, and the city removed the case initially to federal court and asked a federal judge to dismiss the matter. However, before that judge could rule, the homeowners, represented by attorneys with the firm of LeonardMeyer LLP, of Chicago, persuaded the judge to send the case back to Cook County court.

In October 2016, the city 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, argued the clock on the statute of limitations should not start at the time of the runway’s opening, but rather when air traffic on the new runway spiked and moved from being a mere nuisance to an infringement of their rights to enjoyment of their property. They asserted that began in 2015, and that, they said, is when the one-year statute of limitations began to run.

Further, they alleged city officials repeatedly misled or even deceived them and the general public to believe City Hall would relieve the impact of the noise on those living in the new runway’s flight path, essentially lulling the homeowners into waiting too long to file suit.

In response, 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. And they said no city officials ever promised to relieve the homeowners’ situation, saying the statements cited by the Bensenville plaintiffs “describe elements of the normal political process when communities are concerned about the impacts of government action.”

Preceding a hearing on June 7, attorneys for both sides presented written testimony from witnesses backing their positions. Mike Leonard, an attorney for the Bensenville homeowners, said the homeowners presented data showing “an enormous spike in terms of arrivals, size of aircraft and night flights in the summer of 2015” using the new runway.

“The cases indicate that a taking does not occur until there is a practical destruction of the use and enjoyment of the property,” Leonard told the Cook County Record. “And that one then is the statute of limitations triggered.”

Following arguments in court June 7, Judge Mulroy issued a short handwritten order denying the city’s motion to dismiss, and scheduling the case for further proceedings.

Leonard said the ruling “paves the way for the plaintiffs to pursue discovery and ready the case for trial.”

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

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