Accordingly, before reaching the sensitive constitutional question of the limits of the power of Congress to interfere with the State's decisions regarding allocation of decision making power to build or restrict airports, this Court should ask whether Congress intended to preempt state prerogatives in this area. Even where the federal lawmaking power to preempt state power exists in a given area under our system of federalism, that power lies with the Congress -- not the Judiciary. For the Judiciary to find and declare that Congress has preempted state law, there must be clear and convincing evidence of Congressional intent to preempt. If Congress has not demonstrated an intent to preempt state law, there is no need to proceed further to the issue of whether Congress has the constitutional power to pass laws intruding on state prerogatives. As set forth above, the evidence is unequivocal that Congress has not sought to preempt: (1) the proprietor's ability to impose noise regulations; or (2) the proprietor's liability for injuries for aircraft noise under state constitutional and state law damage remedies.

Chicago has presented a massive response to Plaintiffs Motion for Summary Judgment -- a seventy-nine page brief and nine thick volumes of appendices. Yet on examination, the brief and appendices reveal a fundamental deficiency in the City's alleged defenses:

• Nowhere does Chicago factually contest the sworn affidavit testimony of DuPage County teachers and school administrators at each of Plaintiffs' schools, confirming that aircraft noise from O'Hare operations has caused, and in the case of the schools yet to be soundproofed, is causing severe interference and disruption with the learning process. Not one affidavit has been filed by Chicago challenging these facts. [FN 27]

[FN 27] Though never challenging the plaintiffs' affidavits directly, in its statute of limitations argument Chicago suggests that the "INM" computer model shows certain schools to be outside the average annual "65 Ldn" line and suggests that line is the standard used by FAA for determining noise interference. For reasons discussed, infra, Chicago's use of the INM model is seriously flawed. However, even accepting arguendo the dubious results of that model reported by Chicago, Chicago's INM model shows that all the plaintiffs' schools are seriously impacted by noise. Contrary to Chicago's assertion in its brief, Chicago's own witness stated that in determining whether a school is too noisy, an interior sound of 45 dB (not 65) is the standard used by Chicago and the FAA. Further, Chicago has acknowledged that attenuation studies show that with school windows open, a 65 dB external energy level will produce interior noise in excess of 45 dB. Finally, Chicago's own INM model -- spurious as it is -- shows that the schools "outside" the 65 Ldn average annual contour suffer several hours per day in excess of 65 65 dB external aircraft noise. Thus Chicago's own modeling studies support the testimony of the teachers and administrators here. (See discussion, infra).

• Nowhere does Chicago contest, as to the schools already soundproofed, that soundproofing was necessary to alleviate the noise interference and disruption to the educational process -- i.e., that the soundproofing was necessary to provide a proper educational environment.

I. The "Nuisance Balancing Test" Does Not Apply To A Suit For Damages.

The first argument raised by Chicago in opposition to the Plaintiffs' Motion for Summary Judgment -- as opposed to Chicago's Cross-Motion for Summary Judgment -- appears at pages 40-44 of its brief. [FN 28] Beginning at page 41, Chicago cites the affidavits of Messrs. Harrison and Skorburg to the effect that O'Hare pours billions of dollars per year into the region. [FN 29]

[FN 28] Chicago uses pages 13-38 to make arguments on two of the grounds (i.e., accord and satisfaction and its attack on Counts I-III) raised in Chicago's motion for summary judgment. Those arguments are addressed in Part Three, infra.

[FN 29] Though Chicago tries to paint the benefits as being focused on the area in the immediate vicinity of O'Hare, the testimony of the witnesses is that the benefits are regional, and not keyed to proximity to O'Hare. That testimony is set forth more particularly under Plaintiffs reply to Chicago's argument that benefits offset Plaintiffs' claim for damaging, without just compensation (pages 83-87, infra), as it pertains more directly to that section.

The critical flaw in this argument lies in the fact that this is not a suit for an injunction, but a suit for damages. The nuisance balancing test only applies in an action for a complete injunction -- the case in which the relief sought is a complete termination of the defendant's operations.

The nuisance balancing test does not apply: (1) where the plaintiff seeks monetary damages; or (2) where the injunctive relief sought is some modification of the defendant's activity, or some act in addition to the defendant's activity which will lessen the deleterious effects (soundproofing is an obvious example), but will not eliminate the activity. Under these circumstances, the nuisance balancing test should only be relevant if the damages are so large, or the remedial acts required are so extensive and demanding, so as to make the continuation of the activity no longer possible. See 40 Restatement of Torts 2d ss. 822 and 826 (1979); in particular, s. 826, comment f., stating in relevant part:

It may sometimes be reasonable to operate an important activity if payment is made for the harm it is causing, but unreasonable to continue it without paying. The process of weighing the gravity of the harm against the utility of the conduct assesses to social value of the actor's activity in general. Thus in the case of noise and other harassment created by the operation of an airport, the utility depends upon the social value of aviation and the need for air transportation.... The process of comparing the general utility of the activity with the harm suffered as a result is adequate if the suit is for an injunction prohibiting the activity. But it may sometimes be incomplete and therefore inappropriate when the suit is for compensation for the harm imposed. The action for damages does not seek to stop the activity; it seeks instead to place on the activity the cost of compensating for the harm it causes.

* * * * *

In a damage action for an intentional invasion of another's interest in the use and enjoyment of land, therefore, the invasion is unreasonable not only when the gravity of the harm outweighs the utility of the conduct, but also when the utility outweighs the gravity -- provided the financial burden of compensating for the harms caused by the activity would not render it unfeasible to continue conducting the activity. If imposition of this financial burden would make continuation of the activity not feasible, the weighing process for determining unreasonableness is similar to that in a suit for an injunction.

Chicago has never suggested that the cost of soundproofing the affected buildings would prohibit its operation of O'Hare, and has never contested the fact that every bit of the cost would be passed on to the airlines (along with the cost of this suit) under the airline lease agreements. Therefore, the balancing required for an injunction does not apply to this suit for damages.

Illinois has adopted the Restatement approach to the law of nuisance. In Schatz U. Abbott Laboratories, Inc., 131 m. App. 2d 1091, 269 N.E.2d 308, 313 (2d Dist. 1971) reversed on other grounds, 51 111. 2d 143, 281 N.E.2d 323 (1972), the court stated:

Thus, a court will "balance equities" in matters of injunction, but the usefulness of the offending business is not determinative of the right to damages for injuries shown. There may be a rightto damages where the location of the offending business is imperative.

This distinction between a suit for damages and an injunction, under the law of nuisance, has long been recognized. See Haack v. Lindsay Light & Chemical Co., 393 Ill. 367, 66 N.E.2d 391, 394 (1946) (showing that consideration of the utility and reasonableness of the conduct is a requirement for injunctive relief, over and above the requirements for damages).

Cases cited by Chicago to support its argument for a "nuisance balancing test" (Carroll v. Hurst, 103 111 App. 3d 984, 431 N.E.2d 1344 (4th Dist. 1982); Pasulka v. Koob, 170 ill. App. 191, 524 N.E.2d 1227 (3d Dist. 1988)) arise from injunction suits, and therefore are inapplicable to this suit for damages.

Wheat v. Freeman Coal Mining Corporation, 23 ill. App. 3d 14, 319 N.E.2d 290, 294 (5th Dist. 1974), cited by Chicago, recognizes that Illinois has adopted the Restatement approach to the law of nuisance, and that under the Restatement the requirements for an injunction and the requirements for damages are distinct. (It was unnecessary for that court to proceed with this analysis further, since it was affirming a substantial jury award of damages). To the extent that Patterson V. Peabody Coal Co., 3 Ill. App. 2d 311, 122 N.E.2d 48 (4th Dist. 1954) may be read to suggest that balancing of utility of an activity against the injury may play a role in a suit for damages, that decision is superseded by the subsequent authority of Schatz v. Abbott Laboratories, Inc., supra, which is controlling in this district. See Bradshaw v. Pellican, 152 ill. App. 3d 253, 504 N.E. 2d 211, 216 (2d Dist. 1987). This Court can determine, based on the evidence and admissions inpleadings, that Chicago is liable for damages under Plaintiffs' nuisance count, as a matter of law.

II. Legislative Authorization To Conduct An Activity Does Not Create An Immunity From Nuisance Liability.

At pages 44-51 of its brief Chicago argues that because the Legislature authorized Chicago to build an airport, the Legislature also authorized Chicago to create an intolerable impairment and disturbance of the educational environment of DuPage County schools, i.e., a nuisance. Chicago claims that since the Legislature authorized Chicago to create the nuisance, Chicago has no liability for the nuisance.

The legislative authorization cited by Chicago does not give Chicago permission to create an intolerable impairment and disturbance of the educational environment of DuPage County schools. Indeed, in authorizing Chicago to own and operate airports, the Legislature did not dictate the location of the airport. Nor did it dictate to Chicago how large an airport, or how many operations Chicago was to create at the airport. Significantly, in authorizing Chicago to establish and maintain public airports, the Legislature also gave Chicago explicit eminent domain power to purchase where necessary an adequate land buffer. 65 ILCS 5/11-102-1. Had Chicago, acting pursuant to its legislative authorization, located its airport at a larger site and/or acquired an adequate land buffer, these intolerable conditions would likely not exist.

Despite this absence of authorization to create a nuisance, Chicago seeks to immunize itself from state tort nuisance damages, relying on a series of old railroad cases -- some of which contain broad statements in dicta that an activity which is authorized by law "cannot be a nuisance." See, e.g., Aldrich v. Metropolitan West Side Elevated R.R. Co., 195 Ill. 456, 464, 63 NE 155 (1902); Metropolitan West Side R.R. Co. V. Goll, 100 Ill.. App. 323, 329 (1902); Rigney V. City of Chicago, 102 111.64 (1882). But those cases and the others cited by Chicago must be viewed in both the temporal and legal contexts in which these statements were made. As contemporary and later authorities emphasized, the dicta in these earlier cases did not immunize legislatively authorized activity from nuisance damage actions.

All the cases cited by Chicago grew out of the controversy between eminent domain damages for takings, and non-liability for those "consequential" damages which were non-invasive, and so were not deemed "takings" at the time of those decisions. These cases stand for the limited and historical proposition that abutting property owners whose property was not "taken" and not invaded could not recover "consequential" damages under the Federal Constitution, and that nuisance actions were not available to avoid this hurdle.

The response to this distinction drawn between takings and consequential damages was to amend the Illinois Constitution of 1870, to require compensation for those situations where there had been non-invasive damaging. It is this state constitutional "damaging" provision that is the focus of the cases cited by Chicago.

But the dictum of those cases that a legislatively authorized act cannot be a nuisance is not and never has been the law. As shown below, the law is clear that, at best, legislative authorization may provide immunity from an action to abate a public nuisance. However, such authorization does not immunize the person committing the nuisance from liability for damages.

The majority rule that legislative license or authorization does not bar liability for a private nuisance damage action has been stated as follows:

According to some of the authorities in this country, injury incidentally resulting from acts or things performed or conducted in a proper manner, under legislative authority, which but for such legislation would constitute private nuisances, does not give rise to a cause of action for damages or for relief by way of injunction......

According to the great weight of authority however, while that which is authorized by law cannot be a public nuisance, it may nevertheless be a private nuisance and the legislation authorization does not affect the claim of a private citizen for damages for any special inconvenience and discomfort caused by an authorized act not experienced by the public at large.

This majority rule that a legislative license or rule does not condone a nuisance has been adopted in Illinois and by the Supreme Court of the United States. In Jones v. Sanitary District of Chicago, 252 Ill.591, 97 N.E. 210 (1911)-- a case which post-dates the cases cited by Chicago -- the Illinois Supreme Court adopted the widely accepted formulation of the principle set forth in the treatise Wood on Nuisances (1893). Faced with Chicago's categorical claim that activity which is authorized by the legislature cannot be a nuisance, the Illinois Supreme Court said:

As a general proposition, it is true that which is authorized by the legislature cannot be a nuisance, but that statement is subject to some qualifications.

The Court then quoted with approval the rule set forth in Wood on Nuisances (1893) that such action can constitute a private nuisance:

It is sometimes laid down in elementary works and appears in the opinions of courts that that which is authorized by the legislature cannot be a nuisance. This is clearly erroneous in the sense that it is clearly understood. That which is authorized by the legislature, within the strict scope of the power given, cannot be a public nuisance; but it may be a private nuisance, and the legislative grant is no protection against a private action resulting therefrom.

[FN 30] Chicago's brief never mentions Jones and says that the earlier dicta of the old railroad cases has been approved in later Illinois cases. (See Chicago's brief, page 48, n. 11). Yet an examination of the cases cited in the footnote does not bear out Chicago's claim. Belmar Drive-in Theatre v. Illinois State Toll Highway Comm'n., 34 Ill. 2d 544, 216 N.E. 2d 788, 792-793 (1966) adopted Rigney's concept of damnum absque injuria for lateral damage on a taking count. No mention is made of immunity to a nuisance suit. The Belmar court appeared to accept the viability of a nuisance claim if the victim's injury had not been due solely to the plaintiffs exceptional sensitivity to light (the alleged nuisance). Department of Public Works And Buildings v. Wilson & Co., 62 Ill.2d 131, 340 N.E.2d 12 (1975) again reviewed Rigney as to the history of the damaging provision of the 1870 Constitution. No nuisance was involved in the Wilson case and no mention was made of any immunity from a nuisance action by reason of legislative authorization. Similarly no mention is made in City of Chicago v. Reuter Bros. Iron Works, 398 Ill. 202, 75 N.E.2d 355 (1947) of any doctrine that legislative authorization immunizes the creation of a nuisance. Finally, Citizens Utilities Co. v. Metropolitan Sanitary District, 25 Ill. App. 3d 252, 322 N.E.2d 857 (1st Dist. 1974) is of no help to Chicago. That case simply discusses Rigney's definition of "damaged" within the meaning of the 1870 Constitution; it did not involve a nuisance action and makes no mention of any doctrine that legislative authorization immunizes a public project against nuisance.

No action will lie and no recovery can be had for doing that which the law authorizes the party to do, and that cannot be adjudged a nuisance and be held unlawful which the law declares to be lawful.

The Supreme Court rejected this defense stating:

It is no answer to the action of the plaintiff that the railroad company was authorized by act of Congress to bring its track within the City limits of Washington....

Whatever the extent of the authority conferred, it was accompanied with this implied qualification, that the works should not be so placed as by their use to unreasonably interfere with and disturb the peaceful and comfortable enjoyment of others and their property.

The legislative authorization exempts only from liability to suits civil or criminal at the instance of the state; it does not affect any claim of a private citizen for damages for special inconvenience and discomfort not experienced by the public at large.

Numerous other decisions from the courts of the several states might be cited in support of the position that the grant of powers and privileges to do certain things does not carry with it any immunity for private injuries which may result directly from the exercise of those powers and privileges.... No permission given to conduct such an occupation within the limits of a city would exempt the parties from liability for damages occasioned to others, however carefully they might conduct their businesses. 108 U.S. at 334 (emphasis added)

This principle -- that legislative authorization does not immunize injurious invasive action from a nuisance damage action -- was also stated by the United States Court of Appeals for the First Circuit in Commerce Oil & Refining Corp. v. Miner, 281 F.2d 465 (1st Cir. 1960), as follows:

. . . Rhode Island would follow the majority view and hold that, while a license constitutes a defense to a prosecution for maintaining a public nuisance, a governmental "grant of powers and privileges to do certain things does not carry with it any immunity for private injuries which may result from the exercise of those powers and privileges.

[FN 31] For other areas where municipal government has been held not to be immune from nuisance despite legislative authorization to conduct the activity, see: Public Dump as Nuisance, 52 A.L.R.2d 1134; and Sewage Disposal Plant as Nuisance, 40 A.L.R.2d 1177. By analogy, the United States Supreme Court and the Illinois Supreme Court have also consistently held that receipt of a permit to conduct an activity from state or federal agencies is no defense to a nuisance claim. See, e.g., New Jersey v. City of New York, 283 U.S. 473,482-83(1931); and City of Wilsonville v. SCA Services, Inc., 86 Ill.2d 1, 426 N.E.2d 824, 837 (1981).

However we observed in Nestle v. City of Santa Monica, that statutes which broadly authorize or regulate airports and aircraft flights do not create a legislative sanction for their maintenance as a nuisance.

Similarly, the Wisconsin Supreme Court, in Krueger v. Mitchell, 112 Wisc. 2d. 88, 332 N.W.2d 733 (1983), stated the principle as follows:

[T]he language used by the court in Kuntz can be read to imply that an airport which is operating lawfully can not constitute a nuisance. Any such implication is hereby rejected . . . the court in Kuntz was concerned solely with the issue of injunctive relief. Thus, the language has no application to a nuisance claim requesting damages ... we hold that an airport which unreasonably interferes with the use and enjoyment of adjacent property can constitute a nuisance, even though such an airport is operating in accordance with federal and state law.

The foregoing analysis demonstrates that Chicago cannot claim that the Illinois legislature's authorization to conduct a municipal activity -- in this case an airport -- constitutes permission to cause a nuisance. Beyond all this, it bears noting that the cases relied upon by Chicago predate the abrogation of common law local governmental tort immunity following Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 163 N.E.2d 89 (1959). Under Molitor, the City is possessed of no immunities, excepting those arising expressly by statute. The State's legislative authorization to the City to establish airports does not include any express grant of immunity, nor can the immunity claimed by Chicago be found in the Tort Immunity Act. This point was thoroughly established on Chicago's prior Motion for Summary Judgment.

III. Inverse Condemnation Is Not The Exclusive Remedy.

As discussed above in Section One of this brief, numerous decisions in other jurisdictions, and express acknowledgment by the United States as well (see discussion at pages 84-37, supra), make it clear that proprietor liability under the Griggs doctrine is not limited to inverse condemnation actions. Yet Chicago argues that inverse condemnation is the only remedy available to those who are injured by conduct of a public agency that would otherwise constitute a nuisance (Chicago's brief, pages 49-51).

Contrary to Chicago's claim, an action for inverse condemnation is not the exclusive remedy available to Plaintiffs. In addition to the cases cited supra at pages 34-37, in Jones v. Sanitary District of Chicago, supra, the Illinois Supreme Court allowed a nuisance remedy against a legislatively authorized flood control project of Chicago which created nuisance conditions downstream.

More recently, in Belmar Drive-in Theatre v. Illinois State Toll Highway Comm'n., 34 Ill. 2d 544, 216 N.E.2d 788, 790-791 (1966) (cited by Chicago), the Illinois Supreme Court explicitly recognized the availability of a nuisance remedy against a highway project of the Illinois Toll Highway Commission. (The court specifically held that a nuisance remedy was available, but that plaintiff had failed to plead facts sufficient to set forth a nuisance claim.) Here, by contrast, Chicago has acknowledged that Plaintiffs have set forth all the requisite elements of a nuisance claim.

None of the cases cited by Chicago at pages 50-51 of its brief bear on this point. Bryski v. City of Chicago dealt solely with the preemption issue; it did not hold that -- absent preemption -- state law nuisance remedies were not available. In Village of Bensenville v. City of Chicago, 16 Ill. App. 3d 733, 306 N.E.2d 562 (1st Dist. 1973), the court noted that under Causby and Griggs, the plaintiffs would have an inverse condemnation action; however, the court did not indicate that other causes of action would not be available.

The out-of-state cases cited by Chicago for this point are equally inapposite. For example in Henthorn v. Oklahoma City, 453 P.2d 1013 (Okla. 1969) the court did not state that nuisance and trespass claims were barred. Indeed, the court noted that such claims are recognized by the Restatement of Torts. The court then simply stated that it need not decide whether to adopt the Restatement, because that question was not before it. Henthorn v. Oklahoma City, supra, 453 P.2d at 1016.

In Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d 100 (1962), cited by Chicago, the court began with the stipulation that under Oregon law, the Port Authority was immune from liability. Thus, there was no discussion of the availability of nuisance or trespass remedies. As shown above, unlike Oregon, Illinois follows the majority rule that there is no immunity arising merely from a legislative authorization to perform an act.

Nor does Alevizos v. Metropolitan Airports Commission of Minneapolis & St. Paul, 298 Minn. 471, 216 N.W.2d 651 (1974) support Chicago's position. In that case the Minnesota Court rejected nuisance because, under its interpretation of Minnesota law, a nuisance action would require a balancing of the social utility of the airport against the harm to the victims: "[t]o undertake such a balancing process would in almost every instance spell defeat for the property owner." 216 N.W.2d at 660. As shown above, under Illinois law and the Restatement, balancing of benefits of the nuisance against harm to the victim is done -- if at all -- only where the relief sought is an injunction.