(d) Authorized operation of a transportation facility cannot be tortious. Citing outdated 19th century cases, Chicago argues against the nuisance count (Count IV) that non-negligent operation of a state authorized transportation system cannot be a nuisance. (Chicago's brief, pages 6, 44-51). However, the great weight of contemporary authority, including Illinois authority, confirms that legislative authorization does not immunize a political subdivision of a state from liability arising from operation of that activity in a manner that creates a private nuisance. while the legislative authorization may immunize the political subdivision from criminal prosecution for maintenance of a public nuisance, it does not immunize the political subdivision from civil damage liability for a private nuisance. (See discussion at pages 59-65, infra).

Plaintiffs' Response To Chicago's Claimed Affirmative Defenses

Chicago sets out three alleged affirmative defenses in its "summary of the facts and legal issues" (Chicago's brief, page 6):

(a) Accord and satisfaction. Chicago argues that the school districts' participation in a federal soundproofing grant program constitutes an accord and satisfaction, notwithstanding the clear admissions of Chicago's own witnesses that there never was any agreement to settle or release claims. (Chicago's brief, pages 6, 12-19). Plaintiffs demonstrate by overwhelming uncontroverted evidence that the elements of accord and satisfaction are not met in this case. In particular, the unequivocal testimony of Chicago's sole proffered witness on this issue (Judith Hamill) confirms that there was no meeting of minds between the parties to reach an accord and satisfaction. Hamill repeatedly admits in her deposition that she has no knowledge as to whether Plaintiff School Districts intended to waive or compromise their claims. Further, the fact that Plaintiffs sought most of these federal soundproofing grants at the same time Plaintiff's lawsuit has been pending renders the argument ludicrous. At no time has Chicago asked Plaintiffs to withdraw this lawsuit as a condition for receiving the grants. (See discussion at pages 108-24, infra). The Plaintiffs are entitled to a ruling that there is no accord and satisfaction in this case, as a matter of law.

(b) Statute of limitations. Notwithstanding Chicago's defeat on its prior motion for summary judgment on this very issue, Chicago continues to argue that Plaintiff' claims are barred by the statute of limitations in the Tort Immunity Act (Chicago's brief, pages 6, 69-78). However, under Illinois law, the Tort Immunity Act does not apply to an inverse condemnation action for a taking. As demonstrated below, under Illinois law, the applicable period of limitations for a taking is 20 years, and until the 1988 overruling of Luedtke v. County of Milwaukee, 521 F.2d 387 (7th Cir. 1975), the run of the period of limitations was tolled. Further, the action is preserved under the doctrine of continuing nuisance, which the Court has already ruled is applicable in this case (See discussion at pages 90-108, infra). [FN 8]

[FN 8] This affirmative defense is not a ground of Chicago's Cross-Motion for Summary Judgment. It will be addressed in that portion of this brief which constitutes the reply on Plaintiffs' Motion for Summary Judgment.

I. The History and Structure of the Legal Principle That the Airport Proprietor Is Liable for Noise Injury to Neighboring Properties Caused by Overflights of Aircraft Approaching or Departing the Airport.

Before addressing Chicago's specific arguments, it is essential to apprise the Court of the relevant legal history and structure underlying the doctrine that the airport proprietor is liable for aircraft noise operations. Only by becoming familiar with this history and framework can this Court understand the weaknesses in the arguments raised by Chicago here. This section of this brief is organized as follows:

A. A discussion and analysis of the seminal Supreme Court decision in Griggs v. Allegheny County, 369 U.S. 84 (1962)-- holding that the airport proprietor -- not the federal government -- is the entity liable for payment of damages for noise injury caused by aircraft approaching and departing the airport.

B. A discussion and analysis of the voluminous Griggs progeny declaring that aircraft noise that causes serious interference with the use and enjoyment of property is a "taking" in violation of the just compensation clauses of the federal and state constitutions.

C. A discussion and analysis of two leading takings issues which are highly relevant to arguments made by Chicago in this case:

1. The issue of noise injury from direct overflights (which both state and federal courts have held to be a taking satisfying any historical physical invasion requirements), as opposed to noise injury from lateral flights over adjacent property (which federal courts have held not to be a taking, but which state courts deem to be a taking). There is no question that much of the noise injury here comes from direct overflights, so that there has been a taking, regardless of whether this Court follows the federal or state court precedents.

2. The navigational airspace issue also raised here by Chicago. The courts from Griggs to the present have uniformly held that the fact that the aircraft are within the federally declared navigational airspace is not a defense to a taking claim where the noise from those aircraft interferes with the use and enjoyment of the landowner's property.

D. A discussion and analysis of the recognition by both state and federal courts that nuisance damage remedies, in addition to inverse condemnation actions, are available against the airport proprietor.

A. Griggs v. Allegheny County -- The Airport Proprietor Is Liable For Noise Injury To Neighbors.

There are really only four entities who can pay for noise injury from aircraft operations departing or approaching a commercial airport: (1) the victim who is injured by the noise; (2) the airlines who fly the planes; (3) the FAA which prescribes flight routes and elevations; or (4) the airport proprietor who decided to build the airport. Any analysis of this subject must begin with the seminal decision of the Supreme Court in Griggs v. Allegheny County, 369 U.S. 84 (1962) -- which unequivocally held that the airport proprietor is the party that must pay for the noise injury.

The arguments made by Chicago here are virtually identical to the arguments made by the proprietor of the Greater Pittsburgh Airport, and rejected by the Supreme Court, in Griggs v. Allegheny County:

The County of Allegheny did not operate or exercise any control over any aircraft in and out of the airport. All flights are regulated by the United States.

All flights are governed by the Federal government, and the County of Allegheny has no right to determine or direct the altitude of flights in and out of the Greater Pittsburgh Airport.

Acknowledging the truth of those statements, the Supreme Court in Griggs nevertheless held that it was the airport proprietor -- who made the decisions where to locate the airport, which runways to build and where, and who leased the use of the airport to the airlines using it -- that would be liable to neighboring property owners for noise damages caused by aircraft overflights into and out of the airport, and not the federal government.

The airlines that use the airport are lessees of respondent [the proprietor Allegheny County]; and the leases give them, among other things, the right to land" and "take-off." No flights were in violation of the regulations of the C.A.A.; nor were any flights lower than necessary for a safe landing and take-off.

We think, however, that respondent [the local municipal proprietor], which was the promoter, owner, and lessor [footnote omitted] of the airport, was in these circumstances the one who took the air easement in the constitutional sense. Respondent decided, subject to the approval of the C.A.A., where the airport would be built, what runways it would need, their direction and length, and what land and navigation easements would be needed. The Federal Government takes nothing; it is the local authority which decides to build an airport vel non and where it is to be located.

Without these siting, runway location and construction, and leasing decisions by the local governmental airport proprietor, there would be no noise injury from aircraft arriving and departing at the airport. It was the developmental decisions of the local governmental airport proprietor which allowed the noise injury to occur.

As stated by the Supreme Court in Griggs:

We see no difference between its [the proprietor's] responsibility for the air easements necessary for operation of the airport and its responsibility for the land on which the runways were built.

The very factors which were present in Griggs -- which led to the Supreme Court imposing liability on the airport operator for noise damage caused by overflights -- are present in this case:

1. Paralleling the identical arguments made by proprietor Allegheny County, Chicago argues that the total control by the FAA of flight direction and altitude precludes liability being imposed on the airport proprietor. The same "total control" by the federal government of aircraft altitudes and routes was present in Griggs [FN 9] and was rejected by the majority.

[FN 9] 'These airspaces are so much under the control of the Federal Government that every takeoff and every landing at airports such as the Greater Pittsburgh Airport is made under the direct signal and supervisory control of some federal agent." Dissenting opinion of Justice Black, 369 U.S. at 92-93.

a. Like Allegheny County, Chicago voluntarily made the decision where to locate its commercial airport.

b. Like Allegheny County, Chicago made the voluntary decisions as to when and how many runways to build at that location [FN 10] -- decisions which inevitably and necessarily control how many flights come into and out of the airport.

c. Like Allegheny County, Chicago made the voluntary decisions to enter into leases with various airlines to allow those airlines to take off and land at O'Hare. [FN 10] See deposition testimony of former Chicago Aviation Commissioner Jay Franke, at footnote 26, infra.

There has been much discussion about the proprietor's right to later restrict the use of the airport by noisy aircraft after the airport and runways are in place. The case law is very clear that the proprietor enjoys significant after-the-fact power to restrict the use of the as-built airport. [FN 11] But even if Congress declared these after-the-fact powers of the proprietor to be preempted -- which it clearly has not (see discussion infra)-- that would not change the basic rationale for liability of the airport proprietor in Griggs. Liability would continue to rest with the airport proprietor because it was the proprietor who made the voluntary threshold decisions to build and expand the airport. Without these voluntary pre-injury proprietor decisions, the noise injury would never occur.

[FN 11] "The rationale for this [the proprietor] exception is clear. Since airport proprietors bear monetary liability for excessive aircraft noise under Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L. Ed. 585 (1962), fairness dictates that they must also have power to insulate themselves from that liability." San Diego Unified Port District v. Gianturco, 651 F.2d 1306, at 1316-1317 (9th Cir. 1981) See discussion in Part II, infra.

B. Griggs Progeny Declaring Aircraft Noise That Causes Serious Interference With The Use And Enjoyment Of Property A Taking In Violation Of Federal And State Constitutional Just Compensation Requirements.

Griggs was based on the just compensation clause of the Fourteenth Amendment to the United States Constitution. But cases following Griggs based their awards for takings arising from aircraft noise on the just compensation clauses of their respective state constitutions. [FN 12] See e.g., Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d 100 (1962); Martin v. Port of Seattle, 64 Wash. 2d 309, 391 P.2d 540 (1964), cert. denied, 379 U.S.989 (1965); City of Jacksonville v. Schumann, 167 So. 2d 95 (Fla. App. 1964), cert. denied, 88 S.Ct. 101 (1968); Aaron v. City of Los Angeles, 40 Cal. App. 3d 471, 115 Cal. Rptr. 162 (Cal. Ct. App. 1.974); State of Alaska v. Doyle, 735 P.2d 733 (Alaska 1987).

[FN 12] One of the state cases pre-dated Griggs and was cited favorably by the Supreme Court majority in Griggs. Ackerman v. Port of Seattle, 55 Wash. 2d 400, 348 P.2d 664 (1960).

We assume without holding that this [inverse condemnation remedy under state law] is available to Biddison; neither he nor the City contends that the Illinois statute of limitations has lapsed on this action or that the remedy is otherwise unavailable or inadequate.

Not having availed himself of the inverse condemnation action provided in Illinois, Biddison's federal taking claim is not ripe and has not accrued for purposes of the statute of limitations. His federal claim will ripen, and the statute of limitations will begin to run, if and when Biddison is denied just compensation by the state courts.

[FN 13] The 1991 Biddison decision -- that the federal constitutional takings claim had not accrued and therefore was not barred by the statute of limitations because state law constitutional inverse condemnation remedies were available -- followed on the heels of the parallel decision by the same court overruling Luedtke in Bieneman v. City of Chicago, et al., 864 F.2d 463 (7th Cir. 1988), cert. denied, 490 U.S. 1080, 109 S.Ct. 2099 (1989).

C. Takings Issues

Two issues have repeatedly arisen in the takings cases which are directly relevant to arguments made by Chicago here.

• Whether a taking exists when the noise damage is from flights which are adjacent to but not over the plaintiffs' property.

• Whether the statutory easements declared by Congress over the so-called "navigable airspace" preclude recovery for a taking.

1. The Federal Batten Rule -- Noise Injury From Lateral Flights vs. Direct Overflights.

The first of these issues relates to the hoary distinction made in federal constitutional cases in the 19th century between a taking and what were called "consequential damages" -- and the application of that doctrine to aircraft operations. Under the just compensation clauses of the Fifth and Fourteenth Amendments, some 19th century courts had held that there had to be a direct physical invasion of the property for which the claim was made. The physical occupation of adjacent property -- with the release of noise or vibration from the adjacent property onto the plaintiffs property -- was considered a "damaging," which under the federal constitution was damnum absque injuria.

In the area of noise injury from aircraft, the difference between a taking and a damaging is illustrated by the case of Batten v. United States, 306 F.2d 580 (10th Cir. 1962), cert. denied, 371 U.S. 955 (1963). In Batten the court discussed the difference between a direct invasion (for which compensation must be paid) and "consequential damages" (for which no compensation is required under the Federal Constitution).

[T]he federal courts have long recognized the distinction between a taking and consequential damages ... the Supreme Court held that governmental activities which do not directly encroach on private property are not a taking...

Because of this rule which denies the recovery of consequential damages in the absence of any taking, many state constitutions provide in substance that private property shall not be taken or damaged for public use without compensation. However, the federal obligation has not been so enlarged either by statute or constitutional amendment.

The court went on to say that, under the Federal Constitution, noisy flights which were adjacent to but not over plaintiffs' land did not constitute the required physical invasion of the plaintiffs' property required for a taking (as opposed to a damaging). The court repeatedly emphasized that overflights constituted the requisite physical invasion for a taking.

In Causby the Supreme Court held that the continuous invasions of the airspace superadjacent to [above] the property was "in the same category as invasions of the surface" and that the damages were not "merely consequential" but "the product of a direct invasion of the respondent's domain."...

* * * * *

In Causby, Griggs, and a number of other lower court decisions there were regular flights over the property. Absent such physical invasion, recovery has been uniformly denied.

[FN 14] As Batten recognizes, Causby, Griggs and a host of other cases held that overflights -- as opposed to flights over adjacent property -- satisfied any arguable physical invasion requirements requisite to a taking under the Federal Constitution. We emphasize arguable" because the Supreme Court has long since abandoned physical invasion as a requirement of a Fifth or Fourteenth Amendment taking. See, e.g., Lucas v. South Carolina Environmental Coastal Commission,___ U.S. ___, 112 S.Ct. 2886, 2892-2894 (1992).

Applied to the facts of this case, there would be a taking in the case of Plaintiff schools here even under the limited federal constitutional doctrine. The Plaintiffs' witnesses have testified that there is -- or was prior to soundproofing -- severe disruption of classroom education due to flights over the schools. [FN 15] While there certainly are noise injuries due to overflights over adjacent properties causing lateral noise disruption to the schools, there is no question that a great deal of the injury is due to direct overflights over the schools. Under these facts, there has been a taking here under even the more stringent Batten rule.

[FN 15] The uncontested affidavits of plaintiffs' teachers and administrators establish aircraft flights "over" every one of the plaintiffs' schools. Chicago's consultant Mary Vigilante agrees:

Q. So that you would agree, there may be a disagreement as to the degree of the noise that hits the school, but you would agree that there are overflights over each of the schools, isn't that right?

A. Yes.

Vigilante deposition at page 291 (Supplemental Appendix, at 6)

An early leading state constitutional case regarding aircraft noise taking and the lateral injury issue is Thornburg V. Port of Portland, 238 Or. 178, 876 P.2d 100 (1962), decided by the Oregon Supreme Court shortly after the decision in Griggs. In defending a lawsuit by nearby homeowners, the airport proprietor, the Port of Portland, argued inter alia that: "The plaintiffs have no right to protest flights which do not cross the airspace above their land..." 876 P.2d at 102.

The Oregon Supreme Court noted that a number of federal cases, including Batten, had held -- based on the Federal Constitution -- "that while repeated flights at low levels directly over private land may amount to a taking for which compensation must be paid, repeated flights nearby but not directly overhead must be endured as mere 'damages' which, for various reasons, must not be compensable." 376 P.2d at 103.

The Oregon Supreme Court noted that the Oregon Constitution --unlike that of Illinois and several other states -- did not have the addition of the "or damaged" language in its just compensation clause. 376 P.2d at 104, n. 4. Therefore, if there was to be recovery for the noise injury caused by lateral overflights over adjacent property under the Oregon Constitution, the lateral overflights would have to be declared a taking.

The Oregon Supreme Court noted that Griggs, Batten and Causby had focused without elucidation on the trespassory nature of the aircraft operations -- i.e., the aircraft had flown over the victim's property. The question before the court -- accepting the fact that noise could be a nuisance, i.e., a non-trespassory invasion -- was whether such a non-trespassory invasion could be construed to be a taking. The Court found no logical distinction between the noise injury to the use and enjoyment of property caused by a trespassory overflight, as opposed to the virtually identical injury caused by a non-trespassory lateral flight over adjacent property.

In summary, a taking occurs whenever government acts in such a way as substantially to deprive an owner of the useful possession that which he owns, either by repeated trespasses or by repeated non-trespassory invasions called "nuisance"....

If we accept, as we must upon established principles of the law of servitudes, the validity of the propositions that a noise can be a nuisance; that a nuisance can give rise to an easement; and that a noise coming straight down from above one's land can ripen into a taking if it is persistent enough and aggravated enough, then logically the same kind and degree of interference with the use and enjoyment of one's land can also be a taking even though the noise vector may come from some direction other than the perpendicular.

Thus, under the Oregon Supreme Court's analysis, there is no logical basis for distinguishing between noise injury from a lateral flight over adjacent property and noise injury caused by a direct overflight. Both constitute a taking. And indeed, on any logical analysis, no distinction can be intellectually defended.

The decision of the Oregon Supreme Court in Thornburg is particularly important because it found a taking for lateral noise injury from overflights over adjacent property in the absence of a state constitutional provision for "damaging". While the logic of Thornburg is unassailable and has been repeatedly cited with approval in numerous subsequent decisions in other states, those decisions have been in states where the state just compensation clauses included the language "taken or damaged"; and those decisions fail to indicate whether the noise injury was classified as a taking or a "damaging" See e.g., Martin v. Port of Seattle, 64 Wash. 309, 391 P.2d 540, 545-546 (1964); Aaron v. City of Los Angeles, 40 Cal. App. 3d 471, 115 Cal. Rptr. 162, 171-172 (Cal. Ct. App. 1974); Accord: City of Jacksonville v. Schumann, 167 So.2d 95 (Fla. App. 1964).