VI. There Are No Outstanding Issues of Material Fact to Be Decided on the Damaging Claim.

As discussed above -- whether considered under the more restrictive Batten overflight rule, or under the more widely followed and logical Thornburg rule -- the aircraft flights over Plaintiffs' schools, and consequent noise disturbance and interference, constitute a taking under federal and state constitutional just compensation guarantees. Therefore, there is no need to discuss or even deal with the damaging count (Count VI). The damaging count was pleaded in the alternative in the event the Court did not enforce the constitutional protections against taking (Count V).

Nevertheless, Chicago launches a major attack on the damaging count, arguing that there are numerous material issues of fact outstanding which preclude summary judgment on the damaging count (Chicago's brief, pages 57-61). Again, Chicago's arguments are unavailing.

A. Plaintiffs Have Shown the Requisite Special Injury.

Chicago's first argument is that the Plaintiff School Districts have not shown "a direct physical disturbance" to their property in excess of damage sustained by the public generally. (Chicago's brief, pages 57-58). On the contrary,. just as the overflights in Causby and Griggs were sufficient to establish any physical invasion requirements for a taking, the flights over and adjacent to the schools, physically hammering the schools and the students with waves of noise energy, certainly satisfy any requirements for a damaging -- which has a less stringent standard of recovery than a taking.

Similarly, the injury is peculiar to and in excess of the damage sustained by the public generally. Chicago seeks to present a false comparison. It argues that the schools have failed to show that they have suffered more and different noise injury than any of the other noise-battered property owners around the airport (Chicago's brief, page 58). But that is the wrong comparison. The proper question is whether the schools have suffered more injury than the general public benefiting from the airport -- or more directly -- the remainder of the public living under the air traffic routes. By either of these standards, the schools in this case have suffered injury which is peculiar to them from the aircraft noise resulting from O'Hare operations.

As stated by the court in Aaron v. City of Los Angeles, 40 Cal. App. 3d 471, 115 Cal. Rptr. 162 (Cal. Ct. App. 1974):

Similarly in this case the construction and operation of the airport by the City causes special and peculiar damage to plaintiffs which is not shared in common by all persons who live along the airways. [citation omitted] As stated by our Supreme Court in Loma Portal Civic Club v. American Airlines, Inc supra, 61 Cal. 2d 582, 584, 39 Cal. Rptr. 708, 710, 394 P.2d 548, 550: "The problems [of noise and vibration from jet aircraft] are peculiarly acute for landowners near airports who suffer not only from the increase in the general noise level but particularly from their proximity to the low level flying which is a necessary part of the takeoff and landing" (Emphasis added). Plaintiffs' damages are not merely incidental and general."

Accord: Parker v. City of Los Angeles, 44 Cal. App. 3d 571, 118 Cal. Rptr. 687 (Ct. App. 1975):

There can be no doubt from the record before us that jet aircraft, particularly heavy air carriers, caused substantial interference with the use and enjoyment of plaintiffs' properties and that the interference was sufficiently direct and sufficiently peculiar that the owners thereof, if uncompensated, would pay more than their proper share of the cost of the operation of Los Angeles Airport.

Clearly, following the analysis set forth in Aaron and Parker, Plaintiffs have demonstrated direct and sufficiently peculiar interference from aircraft operations, not experienced by others -- both in the Region, and along the routes of aircraft not in the vicinity of the airport.

B. Benefits Do Not Offset Plaintiffs' Claims For Taking And Damaging Of Property, Without Compensation.

At pages 59-61 of its brief, Chicago argues that there is an issue of fact whether benefits obtained from O'Hare offset the damage caused by noise interference, so as to negate the Plaintiffs' claim for damaging of property, without compensation. The argument ultimately is pointless, because, as shown above, Plaintiffs are entitled to recover under Count V of their Complaint for a taking of school district property. The law is settled beyond question that benefits can never offset a claim for a taking of property without just compensation. County Board of School Trustees of Ogle County v. Elliott, supra; Kane v. City of Chicago, supra; Department of Public Works v. Barton, supra. Here, as discussed, supra, there clearly is a taking, and so the balancing of benefits is precluded.

But even as to a damaging claim, Chicago's argument for setoff of economic benefits fails for several reasons.

1. The Proper Measure of Damages Is the Cost to Cure.

As demonstrated above in the section on takings (pages 75-79, supra), the entire issue of setoff of any supposed benefits for taking or damaging of public school property is totally negated, under the doctrine of "special use properties." It is settled law in all jurisdictions examining the issue that the remedy in inverse condemnation applicable to public school properties is the cost of replacement or cure. County of Cook v. City of Chicago, supra; Highline School District No.401, King County v. Port of Seattle, supra; Board of Education of Louisville v. Commonwealth of Kentucky, Dept. of High ways, supra; City of Tulsa V. Mingo School Dist. No.16, supra; State of New Jersey v. Board of Education of City of Elizabeth, supra; Commonwealth of Kentucky, Department of Highways v. City of Winchester, supra; City of Wichita v. Unified School District No.259, supra; State of Texas v. Waco Independent School District, supra; and Reorganized School District No.2 v. Missouri Pacific Railroad Co., supra.

2. In Measuring Damage To Property, General Benefits Are Not Taken Into Account.

Under Illinois law, it is well established that only those benefits which are defined as "special benefits" will have the effect of offsetting damage to property. The rule most recently has been stated in Illinois State Toll Highway Authority v. Itasca Bank & Trust Co., 216 Ill. App. 3d 926, 576 N.E.2d 1221 (2d Dist. 1991), which defines "special benefits" as follows:

Special benefits are the benefits which flow from the proposed public improvement and which are not simply the advantages of progress accruing to the community at large, but which accrue to the particular land alone or to only the immediate neighborhood.

Illinois State Toll Highway Authority v. Itasca Bank & Trust Co. is consistent with a long line of cases, holding that whereas special benefits to property have the effect of offsetting a claim for damage to property caused by a public improvement, general benefits affecting an entire community (and indeed in this case, an entire multi-county region), such as employment, the increase in population, increased facilities for travel, or any other broad and general impact on economic activity, are not taken into account, and do not diminish an award of damages. See Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co., 196 Ill. App. 3d 5, 552 N.E.2d 1151, 1157 (2d Dist. 1990), cert. denied, 133 Ill. 2d 556 (1990); Dept. of Public Works & Buildings v. Exchange National Bank, 31 Ill. App. 3d 88, 334 N.E.2d 810, 821 (2d Dist. 1975); Dept. of Public Works & Buildings v. Divit, 25 fil. 2d 93, 182 N.E.2d 749, 753 (1962); Oil Belt Ry. Co. v. Lewis, 259 Ill. 108, 102 N.E. 228, 229 (1913); Brand v. Union Elevated R. Co., 258 Ill. 133, 101 N.E. 247, 249(1913), aff'd, 238 U.S. 586(1915); and Eldorado, M. & S. W. Ry. Co. v. Everett, 225 Ill. 529, 80 N.E. 281, 283 (1907).

It must be emphasized that the "benefits" approach advocated by Chicago is novel and unprecedented. Courts have found commercial property to be benefited by a localized increase in customer traffic, by improved access to a major thoroughfare, or by reconfiguring property for development. But benefits identified by Chicago (regional employment and income, alleged region-wide increases in land valuations) are merely indicia of general population growth and general regional development. They are quintessential general benefits flowing to the region at large, which do not offset damage to property. In fact, Chicago's own expert, Mr. Roddewig, admits that he does not know of any circumstance in which economic benefits were used to offset damage caused by aircraft noise. See Roddewig deposition, page 217 (at page 79, supra).

Tracing the matter through the interdependent representations made by Chicago's affiants, it is impossible to view the "benefits" described by Chicago as anything but general benefits, because Chicago begins by identifying a benefit flowing to a multi-county region, and then proceeds to break it down to smaller units, sometimes by arbitrary proration.

In his affidavit and also in his deposition testimony, John W. Skorburg made it very clear that his analysis does not proceed beyond arriving at an estimate of employment and income throughout an entire nine-county region attributable to the operation of O'Hare Airport. This falls squarely within the definition of a general benefit. See Affidavit of John W. Skorburg, paragraphs 4 and 7 (Chicago's Appendix, Vol. VI, tab 6), and Skorburg deposition page 53, line 19 to page 54, line 13; page 75, line 2 to page 76, line 8 (Supplemental Appendix, at 4).

It is equally obvious that Chicago's second witness, David Harrison, Jr., merely provides an estimate of the contribution of O'Hare to a broad regional economy. See Affidavit of David Harrison, Jr., paragraph 4 (Chicago's Appendix, Vol. VI, tab 5), and Harrison deposition page 29, lines 8-12 and page 126, line 21 to page 129, line 1 (Supplemental Appendix, at 5). Harrison's analysis proceeds no further than the county level, and his conclusion that only one eighth of the economic benefit falls to DuPage County further confirms that Harrison has not identified a local special benefit, but only a general regional benefit. And although Harrison puts forth figures to show economic contribution by township (which is still merely a general benefit, and not a special benefit to school district property), those figures are simply forced, based on an unsupported assumption that the amount of income in any township attributable to O'Hare would be in the same proportion as the number of jobs in the given township over the number of jobs county-wide, an assumption which Harrison himself concedes is questionable. See Harrison deposition, page 242, line 18 to page 243, line 24, and page 247, line 23 to page 248, line 13 (Supplemental Appendix, at 5).

Chicago's third witness, Richard Roddewig, attempts to imply that the school districts have been benefited in three ways:

1. By increased employment, supposedly falling in greater proportion on the townships closest to O'Hare;

2. By regional increases in assessed property valuations, supposedly greatest in the townships closest to O'Hare; and

3. By the supposed creation of a favorable tax base in the school districts, due to the development of a larger proportion of the land for industrial uses.

[FN 35] A final supposed benefit" derived from O'Hare -- a greater variety of potential secondary uses for functionally obsolescent facilities (See Roddewig Affidavit, paragraph 51) -- aside from being speculative, is wholly immaterial, since there is no contention raised by any party that any of the school facilities at issue in this case are functionally obsolescent.

The second assertion, that assessed valuation of property in townships closest to O'Hare has grown at a higher rate, may be disregarded for a number of reasons. First of all, for school property, the proper measure of damages is the cost to cure. Secondly, increases in property valuation, distributed throughout entire counties, is not evidence of an increase in valuation of specific property; and even on the level of an entire township, it is still a general benefit, not a special benefit to particular land alone, or to the immediate neighborhood. Illinois State Toll Highway Authority v. Itasca Bank & Trust Co., supra, 576 N.E.2d at 1224. Thirdly, Mr. Roddewig admits that his hypothesized acceleration of assessed valuation for "first ring" townships is inconsistent with his own data, and in fact assessed valuation of property in the first ring has grown at a slower rate than assessed valuation in DuPage County overall (8.1% versus 8.6%). See Roddewig deposition, page 190, line 6 to page 200, line 17 (Supplemental Appendix, at 3).

Lastly, Chicago raises an unprecedented argument -- unsupported by any authority -- that school district property is indirectly benefited by a more favorable tax base (more industrial vs. residential development). Affidavit of Richard J. Roddewig, paragraphs 41-43. Even if so, this is clearly not a benefit to land. Obviously, the school district cannot convey its taxing authority to a buyer of the property; therefore, even if market value analysis were allowed, this "benefit" could not enter into the calculation.

But all of this allows entirely too much to the City's argument, because: (1) this case involves a taking, which allows for no setoff; (2) the accepted measure of damages is the cost to cure, not changes in market value; and (3) only special benefits to individual property, or to the immediate neighborhood, will apply to offset a damaging.

VII. Chicago's Attempt to Distinguish Plaintiffs' Taking and Damaging Case Law Is Spurious.

At pages 62-63 of its brief, Chicago argues that the takings case law cited in the Plaintiffs' main brief "show[s] the futility of Plaintiffs' attempt to dispose of the liability aspect of their case through summary judgment" (Chicago's brief page 62). But analysis of Chicago's arguments -- in light of the elements of takings liability established by the case law and the undisputed material facts in this case -- makes clear that summary judgment is not only proper but required for the following reasons:

• The legal elements of a taking as result of aircraft noise can be distilled from the case law to be:

  1. There must be evidence of a substantial interference with the use and enjoyment of the plaintiffs' property so as to deprive plaintiff of a significant element of the use and enjoyment of its property. Here that evidence has been supplied by the uncontested affidavits of 49 teachers and school administrators detailing the substantial interference by aircraft operations from O'Hare with the use of the schools for their intended purpose -- the education of children. Chicago has not filed a single affidavit contradicting any of this evidence. For summary judgment purposes, this element of a takings claim must be held to be satisfied, since there are no material issues of fact relating to this element.

  2. There must be evidence of loss in property value resulting from the interference. Here the case law -- including Illinois law -- is clear that for public schools the proper measure of the loss in property value is the cost to cure or cost of replacement. The law is equally clear that it is not appropriate to use market value or highest and best use analysis and that benefits of the condemnor's project can not be set off against the victims loss. For schools which have been soundproofed, Chicago's own witness Judith Hamill acknowledges actual dollar amounts paid by the school districts to address the noise problem. See Affidavit of Judith Hamill, paragraph 8. There is no dispute that school districts will have to pay large sums to cure the noise problems at schools not yet soundproofed Therefore, the loss in property value -- as measured by the cost to cure -- is uncontested.

• Since the facts which satisfy the legal elements of a taking by aircraft noise are uncontested, summary judgment is both proper and required. If plaintiffs have established all the elements for liability on an uncontested legal basis, they need not wait for a jury trial to win a judgment of liability. Where the uncontested facts show a right of recovery, the plaintiff is entitled to summary judgment. Wojdyla v. City of Park Ridge, supra; Hudlin v. City of East St. Louis, supra. The judge applies the law to the uncontested facts.

Nor is Chicago's citation of Thornburg v. Port of Portland availing. Of course liability in a takings case is not solely a "matter of law," but a matter of applying the law to specific facts. But where as here the facts are uncontested the court can and should apply the law to the uncontested facts.

Nor is Chicago's citation to Biddison v. City of Chicago, 921 F.2d 724 (7th Cir. 1991) helpful to its cause. Central to the Seventh Circuit's holding in Biddison was the assumption that Illinois -- like the other jurisdictions discussed supra -- provides a state constitutional just compensation remedy for takings by aircraft noise:

As the district court noted in its closing footnote, Illinois provides an inverse condemnation action for aggrieved property owners who are harmed by a municipality's actions. Ill. Const. 1970, art I, s. 15 [citation omitted] ...We assume without holding that this remedy 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 yet 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.

Chicago suggests that Biddison did not set a standard for a taking or damaging in a state constitutional taking or damaging case; that issue was not before the court. Nevertheless, there is ample precedent under either the Thornburg line of cases (followed by virtually every state that has addressed aircraft noise takings under state constitutions) or the Griggs-Batten line of cases (which required the direct overflights we have in this case) that substantial interference with the use and enjoyment of the property accompanied by loss in property value constitutes a taking in violation of the just compensation guarantee.

VIII. Plaintiffs' Claims Are Not Barred By Limitations.

Chicago has in other forums acknowledged the fact -- discussed below -- that the statute of limitations for a taking in Illinois is twenty years:

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.

This fundamental distinction affects the controlling statute of limitations. An actual physical "taking" of property under Illinois law has a 20-year limitations period, Ill. Rev. Stat. ch. 110, s. 13-101, while a claim for "damaging" to property under the Illinois Constitution must be commenced within five years.

Yet Chicago now renews its argument before this Court that the applicable statute of limitations for a taking is one year, under the Illinois Tort Immunity Act. (Chicago's brief, pages 69-78). Chicago's argument is as follows. The statutory and judicial ban on state court actions declared by Luedtke did not take place until 1975. Under the Tort Immunity Act, the statute of limitations is one year. Since the noise injury began on the dates set forth in Exhibit 3 to Chicago's brief -- dates which predated the Luedtke ban by more than one year -- the schools claims are barred by the statute of limitations (Chicago's brief, pages 75-76).

Chicago not only demonstrates a fast-and-loose inconsistency in the positions it maintains on the legal issue of limitations; its argument before this Court is flat wrong. The Plaintiff School Districts hereby incorporate their prior brief on the subject of Chicago's statute of limitations defense as part of this argument, but would like to make the following salient points:

• The Illinois Tort Immunity Act does not apply to inverse condemnation actions for takings or damagings under Article I, Section 15 of the Constitution.

• Under Illinois law, the statute of limitations for a taking is 20 years -- the same period available to recover property under adverse possession. Therefore, even accepting arguendo Chicago's argument that the noise injury to began on the dates set forth in Exhibit 3 attached to its brief [FN 36] -- and accepting the argument that the federal statutory bar imposed by Luedtke was not imposed until 1975, the actions in each of the schools was timely.

  [FN 36] The statutory period for statute of limitations period for a tolling does not necessarily begin to run from the date of the first noise injury. See United States v. Dickinson, 331 U.S. 745, 747-749, 67 S.Ct. 1382, 1384-85, 91 L.Ed. 1789 (1947); Aaron v. City of Los Angeles, 40 Cal. App. 3d 471, 492, 115 Cal. Rptr. 162 (1974). The landowner is entitled to wait a period of time to determine if the injury is going to continue on a long-term basis.

• As to nuisance claims, the cases dealing with aircraft noise confirm that aircraft disturbance is a continuing nuisance because the harm is not constant but shifts around with periods of relief followed by periods of injury. Under Illinois law, the victim has the right to elect whether to pursue its claim as a permanent or a continuing nuisance. Here the election is to pursue the claim as a continuing nuisance, and therefore the statute of limitations cannot be considered to have run. The facts as to the continuing nature of this nuisance are clear and undisputed. Based on these uncontested facts, this court must decide, as a matter of law, if plaintiffs are entitled to exercise their option to seek damages for a continuing nuisance.

• Chicago's use of the INM model is irrelevant, inappropriate and inaccurate. Chicago has made "scientific" claims for a computer model which are unsubstantiated, and based on admitted repeated errors. Since the time period of the model (1979-89) is irrelevant to Chicago pre-1975 statutes of limitation claim, the court should disregard it. Alternatively, the court should strike the material as inaccurate and misleading.

A. The Tort Immunity Act Does Not Apply to Inverse Condemnation Actions for Takings or Damagings.

Counts V and VI of the Complaint are founded on Article I, Section 15 of the Illinois Constitution, which provides that property shall not be taken or damaged without just compensation. Actions arising from takings or damagings are not subject to the provisions of the Tort Immunity Act. Streeter v. County of Winnebago, 44 Ill. App. 3d 392, 357 N.E.2d 1371, 1373 (2d Dist. 1976). Indeed, as noted above Chicago has expressly admitted that statutes of limitations outside of the Tort Immunity Act apply to these claims. Quoting directly from Chicago's Petition for Rehearing in Biddison v. City of Chicago, 921 F.2d 724 (7th Cir. 1991):

This fundamental distinction affects the controlling statute of limitations. An actual physical "taking" of property under Illinois law has a 20-year limitations period, Ill. Rev. Stat. ch. 110, 13-101, while a claim for 'damaging" to property under the Illinois Constitution must be commenced within five years.

The reasoning behind this rule is clear. Notwithstanding any statutory grant of tort immunity, local governments nevertheless remain strictly liable, under both the federal and the Illinois Constitutions, for any action which constitutes a taking. The constitutional takings claim transcends and supersedes any statutory delineation of areas of tort immunity and tort liability. This essential distinction is set forth succinctly in McQuillan, Municipal Corporations:

One important principle is to be noted in this connection. Wherever the injury complained of is the taking or damaging of private property for public use without compensation, under the guarantee of the federal constitution against such invasion of the private rights of property, neither the state itself nor any of its agencies or mandatories may claim exemption from liability. [footnote omitted] Thus neither a municipal corporation nor other governmental agency is allowed to establish and maintain a nuisance causing appreciable damage to the property of a private owner without being liable for it. To the extent of the damage done to such property, it is regarded and dealt with as a taking or appropriation of the property, and it is well understood that such an interference with the rights of ownership may not be made or authorized except on compensation first made pursuant to the law of the land.