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County of Cook v. Priester

SEPTEMBER 25, 1974.






APPEAL from the Circuit Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding.


This action was instituted in the Circuit Court of Cook County against George J. Priester, Veta L. Priester, and the Waukee Realty Company, Inc., to enforce the provisions of a special use permit issued by the County. The County sought a permanent injunction and statutory penalties in the form of fines for alleged violations of certain zoning special use restrictions at Pal-Waukee Airport.

The Village of Wheeling was permitted to intervene on the plaintiff's behalf, but at the close of the plaintiff's case the trial judge dismissed it from the case based on his finding that it lacked standing and that it failed to show any damages to itself or its residents.

The court, sitting without a jury, found the restrictions to be void and held in favor of the defendants. The County instituted this appeal from that judgment, and the Village of Wheeling appeals from its dismissal. Subsequent to the plaintiff's filing of a notice of appeal, the trial court amended its decree. A supplementary notice of appeal was filed by the County, and the defendants filed a cross-appeal from the unamended prior decree.

The issues on appeal are whether restrictions on the weight of aircraft is a proper exercise of a State's police power; whether the Village of Wheeling has authority to challenge the violations of the terms of a special use permit granted by Cook County; and whether a trial court has jurisdiction to amend its final decree after a notice of appeal has been filed.

The defendants and counter-plaintiffs, George J. Priester, Veta L. Priester and the Waukee Realty Company, Inc., are the owners of Pal-Waukee Airport, a private airport open to the public, located in an unincorporated area of Cook County. The Village of Wheeling is located near, but not contiguous to the northern boundary of the airport.

Under the Cook County zoning ordinance enacted in 1940, the airport property was classified and developed as a permitted use. In 1960, the Cook County Board of Commissioners reclassified the property as M-1, a restricted manufacturing district, and the property was classified as an existing special use thereunder. In 1963, the Priesters applied to the Zoning Board of Appeals of Cook County for an extension of their existing special use in order to extend Runway 34/16. After conducting public hearings the Board made its recommendation to the Commissioners, a legislative body of Cook County vested with the authority to amend zoning ordinances and to grant special uses by ordinance.

On March 16, 1964, the Commissioners enacted an ordinance granting the Priesters a special use permit to lengthen Runway 34/16 subject to three conditions: (1) Runway 34/16 was not to be extended beyond a total length of 5000 feet from the starting point of the existing runway near Hintz Road. (2) Runway 34/16 was to be constructed for a load-bearing capacity under regular service not to exceed 60,000 pounds. (3) The landing and take-off visual flight patterns for the extended runway should lie to the east of the Village of Wheeling.

In 1970 Cook County brought an action against the Priesters alleging violations of conditions 1 and 2 and sought injunctive relief and criminal fines. The Village of Wheeling filed a petition to intervene under section 26.1 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, § 26.1) and also filed a complaint seeking injunctive relief alleging violation of all three of the conditions. In addition to their answer the Priesters filed a counterclaim seeking to have the three conditions declared unconstitutional on various grounds and to enjoin their enforcement. At the close of the evidence presented by the County and the Village, the court dismissed the criminal counts of the County's complaint because the County had failed to prove the allegations beyond a reasonable doubt, and dismissed the complaint of the Village with prejudice on the ground that the Village was without standing and had failed to present any evidence showing harm to itself or to its residents. It also ruled that a permanent injunction issued against the County of Cook restraining it from enforcing the ordinance.

Pal-Waukee is classified as a "secondary airport" which includes such airports as Milwaukee, Detroit and Minneapolis, and is also classified as a reliever airport to O'Hare under the National Airport Plan. Airports included in the National Airport Plan are deemed by the Department of Transportation to be related to the national interest.

The airport ranks 51st in the nation in terms of general aviation and 95th in total operations out of the approximately 5000 airports in the United States. It has a total of between 170,000 and 220,000 flight operations per year, and has 75,000 itinerant flight operations. Itinerant flights are those which originate and terminate at different points and generally involve flights of substantial distance. Because of the heavy air traffic in the Chicago area, safety factors compel the Federal Aviation Administration to operate a tower at Pal-Waukee. It is only one of three privately owned airports in the country at which the FAA provides control tower service. The control tower is open from 6 A.M. until midnight, and during that time controls all ground movement, flight patterns, take-offs and landings of aircraft using the airport. When the tower is closed, aircraft using the airport are under the direction and control of the tower at O'Hare International Airport.

There are 350 to 400 aircraft based at Pal-Waukee, most of which are general aviation aircraft used for business purposes and owned by corporations. Four of these are jet aircraft weighing in excess of 60,000 pounds.

Charter flights land there on occasion, but there are no public airlines serving Pal-Waukee directly. The airport is also the headquarters of the Civil Air Patrol.

Runway 34/16 is one of the longest runways in the Chicago area with the exception of O'Hare. The longest runway at Midway Airport is 5678 feet long, Meigs Field has a maximum runway of 3345 feet, and DuPage County Airport has a runway of 4000 feet.

The airport is equipped with blast fences at the ends of Runway 34/16 to disperse aircraft exhaust as a protection for the nearby automobile traffic, and there are cement aircraft turn-around areas at each end of the runway that also serve as blast pads to eliminate the blowing of dust and debris. The airport is also equipped with Vasi lights, visual strobe-light indicators, used to guide approaching aircraft, and the runways are equipped with high-intensity landing lights.

Prior to the extension of Runway 34/16 the largest aircraft using the airport was a DC-3, which weighed approximately 60,000 pounds when fully loaded with fuel and passengers or freight and no jets were in use.

The evidence at trial showed the runway was constructed with a load-bearing capacity of 60,000 to 75,000 pounds, and one aircraft, a BAC-111, has used the runway while weighing 79,000 pounds.

The County appeals from the judgment of the circuit court only with respect to the alleged violation of the 60,000-pound weight limitation. It states a zoning ordinance is presumptively valid, and one who challenges it must prove by clear and convincing evidence that it is arbitrary and unreasonable. It contends there was no evidence presented to rebut the presumption that the 60,000 pound ...

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