2020 IL App (3d) 180346
Ill. App. Ct.2020Background
- Homeowners near Clow International Airport sued the Village of Bolingbrook for inverse condemnation after the Village completed substantial runway renovations in 2015 (raised, widened, shifted runway) that plaintiffs say increased low overflights, noise, vibration, fear, and loss of use and market value.
- Plaintiffs filed a three-count inverse condemnation complaint on April 25, 2016.
- The Village moved for partial summary judgment arguing (1) plaintiffs offered no evidence of a compensable taking by overflights, (2) the claim was time-barred by the five-year statute of limitations (735 ILCS 5/13-205), and (3) plaintiffs lacked admissible proof of diminished market value.
- The Village relied on affidavits (airport manager De Paulo) and an appraisal (Noble) indicating Airport operations were substantially unchanged and that proximity to the airport did not reduce marketability. Plaintiffs submitted multiple affidavits describing increased low flights, noise, vibrations, and an expert report (Rothbart) estimating regional value loss.
- The trial court granted partial summary judgment on statute-of-limitations grounds. The appellate court vacated and remanded, holding genuine issues of material fact exist about whether the 2015 renovations created a new or expanded avigation easement (a second taking) that would reset accrual and the limitations period. The appellate court left damages and evidentiary admissibility issues for the trial court to decide; a concurrence/dissent would have affirmed on damages grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 5-year statute of limitations bars the claim (accrual date) | Taking accrued after the 2015 runway renovations; suit filed within five years | Airport operated at similar capacity for decades; any taking accrued earlier and plaintiffs are time‑barred | There are genuine issues of material fact whether the 2015 renovations created a second taking or expanded an existing avigation easement and thus whether the claim is timely; remanded |
| Whether plaintiffs produced evidence of a taking by overflights | Affidavits describe substantially increased low, frequent flights, noise, vibrations, fear, and interference with use/enjoyment | De Paulo affidavit (fuel sales, leases) and deposition say operations are substantially unchanged and he lacks evidence of increased impacts | Genuine factual conflicts exist about frequency, altitude, and effects of flights; summary judgment on merits improper; remanded |
| Whether plaintiffs proved compensable damages (diminution in fair market value) | Rothbart report opines significant loss to homes in the zone (approx. $37,805 average loss) | Noble appraisal (only certified appraisal) finds no adverse market effect; Village contends plaintiffs lack admissible proof of diminished market value | Appellate court declined to resolve damages on appeal, finding unresolved conflicts in the record and that admissibility should be decided by trial court; remanded (dissent would have affirmed for defendant on damages) |
| Admissibility of plaintiffs’ expert report (Rothbart) | Plaintiffs say the report supports damages and sought leave to cure any formal defect | Village argues report lacks Rule 191 affidavit/deposition and is inadmissible | Majority leaves admissibility to trial court on remand; Justice Holdridge would exclude the report and affirm summary judgment for Village |
Key Cases Cited
- United States v. Causby, 328 U.S. 256 (1946) (aircraft overflights that are so low and frequent as to directly and immediately interfere with use/enjoyment can constitute a taking)
- Griggs v. Allegheny County, 369 U.S. 84 (1962) (sustained, frequent overflights that make residential property unbearable can impose an avigation easement amounting to a taking)
- Argent v. United States, 124 F.3d 1277 (Fed. Cir. 1997) (a second taking or expansion of an existing avigation easement can occur when flight paths, frequency, or aircraft noise materially increase)
- Hampton v. Metropolitan Water Reclamation Dist. of Greater Chicago, 2016 IL 119861 (Ill. 2016) (Illinois and federal takings analyses operate in lockstep)
- Pineschi v. Rock River Water Reclamation Dist., 346 Ill. App. 3d 719 (Ill. App. 2004) (Illinois recognizes compensable takings where overflight noise and disruption render property essentially unusable)
- Bryski v. City of Chicago, 148 Ill. App. 3d 556 (Ill. App. 1986) (citing Causby: low, frequent aircraft above property can constitute a compensable taking)
- La Salle Nat'l Bank v. County of Cook, 34 Ill. App. 3d 264 (Ill. App. 1975) (frequent overflights may so deprive plaintiffs of beneficial use that an easement is created)