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Philip v. Daley

Case Date: 06/02/2003
Court: 2nd District Appellate
Docket No: 2-02-0749 Rel

No. 2--02--0749


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JAMES "PATE" PHILIP, Indiv. and
as Illinois Senate President;
HENRY HYDE; and THE VILLAGE OF
BENSENVILLE, ILLINOIS,

               Plaintiffs-Appellees, 

v.

RICHARD M. DALEY, Mayor of the
City of Chicago, and THE CITY OF
CHICAGO,

               Defendants-Appellants

(George H. Ryan, Governor of the
State of Illinois, Defendant).

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) 		Appeal from the Circuit
Court of Du Page County.




No. 02--MR--528



Honorable
Hollis L. Webster,
Judge, Presiding.

 

JUSTICE GROMETER delivered the opinion of the court:

Plaintiffs, James "Pate" Philip, Henry Hyde, and the Village of Bensenville,initiated an action in the circuit court of Du Page County against defendants, theCity of Chicago and Richard M. Daley. The complaint sought, inter alia, adeclaration that an attempt by defendants to acquire property in anticipation ofthe expansion of O'Hare International Airport without first obtaining approvalfrom the Illinois Department of Transportation (IDOT) was beyond the authority ofthe city. Plaintiffs also sought a preliminary injunction prohibiting defendantsfrom proceeding with land acquisition, and the trial court granted this request. Defendants now appeal, and we affirm.

Before proceeding further, we must address two matters. First, defendantshave filed what they term an "Emergency Motion for Summary Reversal." We orderedthe motion taken with the case. After the parties completed their briefing ofthis appeal, the supreme court delivered its decision in People ex rel. Birkettv. City of Chicago, 202 Ill. 2d 36 (2002) (Birkett), and it is upon this opinionthat defendants base their motion. As we explain below, we find Birkettdistinguishable. Thus, we deny defendants' motion. Second, we observe that,between them, the parties have combined to amass a total of 70 footnotes in theirbriefs. Supreme Court Rule 341(a) states, "Footnotes, if any, shall be usedsparingly." Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(a)(eff. October 1, 2001). The parties are advised to abide by this rule in thefuture.

I. BACKGROUND

On June 11, 2002, Chicago announced a plan seeking to acquire 433 acresadjacent to O'Hare for runway expansion. Chicago stated that it would acquire theproperty either through voluntary transactions with property owners or through thepower of eminent domain. Within the area of Bensenville that Chicago wants toacquire lie 533 homes and 55 businesses. The area also contains a police stationand a fire station. The housing in this area is affordable for people of low andmoderate income. Further, the acquisition would displace over 400 students andpossibly cause an elementary school to close.

Chicago did not seek IDOT's approval before commencing its land-acquisitionprogram. The central issue involved in this appeal is whether section 47 of theIllinois Aeronautics Act (Aeronautics Act) (620 ILCS 5/47 (West 2000)) requiresa party seeking to acquire land for airport development to obtain a "certificateof approval" prior to proceeding. Section 47 states, in part, that "[i]t shallbe unlawful for any municipality or other political subdivision *** to make anyalteration or extension of an existing airport *** for which a certificate ofapproval has not been issued by [IDOT]." 620 ILCS 5/47 (West 2000). IDOT haspromulgated a regulation explaining this language. The regulation provides:

"The phrase, 'alteration or extension', shall include any of thefollowing:

a) Any material change in the length, width or direction ofrunways or landing strips;

b) Construction or installation of any building or otherstructure on the airport property which would extend above anapproach slope or a transition slope or turning zone;

c) Planting or permitting to grow any growth or placement ofany other obstacle on the airport property which would extend abovean approach slope or a transition slope or turning zone." 92 Ill.Adm. Code