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County of Cook v. Priester





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. Nathan M. Cohen, Judge, presiding.


The County of Cook (the County) instituted this suit seeking penalties and injunctive relief against the owners of Pal-Waukee Airport for alleged violations of certain conditions of an ordinance granting them a special use permit to extend an airport runway. The Village of Wheeling (the Village) was allowed to intervene and file a complaint which also sought injunctive relief against the alleged violations. Defendants filed a counterclaim seeking to have the conditions declared unconstitutional on various grounds. On motion of defendants, the Village was dismissed as a party for lack of standing at the close of plaintiffs' evidence, and at the conclusion of all the evidence the trial court held that the conditions of the special use permit were unconstitutional and invalid. The appellate court affirmed. (22 Ill. App.3d 964.) We allowed petitions for leave to appeal filed by the County of Cook (No. 47149) and the Village of Wheeling (No. 47169) and have consolidated the two appeals for disposition.

Pal-Waukee Airport is located in an unincorporated area in the northern part of Cook County southeast of the Village of Wheeling. An airport has been operated on a portion of the premises since 1925. When the original Cook County zoning ordinance was enacted in 1940, the airport property was classified as a permitted use within the farming classification and was included in an area described as "Designated Airport Area." The defendants, George J. Priester, Veta L. Priester, and Waukee Realty Company, Inc., purchased the airport property in 1953. The property was subsequently reclassified as M-1, Restricted Manufacturing District, with the airport designated as a permitted special use under such classification. In 1963, the defendants acquired an additional 109 acres and applied to the Zoning Board of Appeals of Cook County for a special use permit to extend runway 34/16 from 2,000 feet to 5,500 feet. After a public hearing at which the Village of Wheeling appeared in opposition to the proposed extension, the Board of Commissioners of Cook County adopted the findings and recommendations of the Zoning Board of Appeals and enacted an ordinance on March 16, 1964, which granted the defendants a special use to lengthen runway 34/16 subject to the following three conditions:

"(1) The NNW/SSE runway is not to be extended beyond a total length for the runway of 5,000 feet from the starting point of the present runway near Hintz Road.

(2) The NNW/SSE runway is 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 NNW/SSE runway shall lie to the East of Wheeling as proposed by the applicant."

In 1970, the County of Cook filed a three-count complaint against defendants. Count I alleged violation of conditions 1 and 2 of the special use permit (length and load-bearing capacity of the runway) and sought an injunction prohibiting defendants from allowing aircraft weighing more than 60,000 pounds from using the runway and ordering defendants to conform to the specified runway length; count II sought penalties for violation of the runway length condition; and count III sought penalties for violation of the weight restrictions. The Village of Wheeling's petition to intervene pursuant to section 26.1 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 26.1) was allowed, and the Village filed a complaint seeking injunctive relief to compel compliance with each of the three conditions of the special use permit. Defendants filed an answer denying violation of the three conditions and also filed a counterclaim seeking to have all three conditions declared unconstitutional and invalid. At the close of the evidence presented by the County and the Village, the two penalty counts of the County's complaint were dismissed for failure to prove the allegations beyond a reasonable doubt. On motion of the defendants, the trial court then dismissed the Village's complaint with prejudice on the grounds that the Village was without standing and had presented no evidence showing harm to itself or its residents. At the conclusion of the trial, the trial court held that the runway had not been constructed in excess of 5,000 feet and that condition 1 of the special use permit therefore was not violated; that condition 2 was invalid and unenforceable for various reasons, including violation of the commerce and supremacy clauses of articles I and VI, respectively, of the United States Constitution; and that condition 3 also violated the Federal supremacy clause in that it attempted to regulate flight patterns which are within the exclusive jurisdiction and authority of the Federal Aviation Administration. An order was entered permanently enjoining the County from further attempting to enforce the ordinance conditions. The County appealed to the appellate court only from that part of the trial court's judgment declaring the weight restrictions of condition 2 invalid, and the Village appealed from the order dismissing its complaint for lack of standing. In affirming, the appellate court held that: (1) The weight restrictions of condition 2 were in contravention of the stated policies of both the Illinois Aeronautics Act (Ill. Rev. Stat. 1971, ch. 15 1/2, par. 22.25) and the National Airport Plan (49 U.S.C. § 1301 et seq.) and furthermore violated the supremacy clause of article VI of the Constitution of the United States since the level of Federal regulation of air commerce by the FAA was so pervasive as to deprive other governmental bodies of the power to act in this area; (2) the weight restrictions constituted an improper attempt to regulate a business under the color of its power to regulate land use; and (3) the trial court properly allowed defendants' motion to dismiss the Village of Wheeling, since the Village had failed to show any harm or injury resulting from the alleged violations of the three conditions of the special use permit.

Before addressing the issues raised by the parties in this court, we deem it appropriate to summarize the evidence concerning the airport's location and the scope and nature of its facilities and operations. The airport is situated on a 250-acre tract southeast of the Village of Wheeling bounded by Palatine Road on the south, Wolf Road on the west, Hintz Road on the north and Milwaukee Avenue on the east. Runway 34/16 runs in a NNE-SSW direction so that aircraft taking off to the north or landing from the north fly over portions of the Village, although it appears that if aircraft taking off to the north made a right turn, they possibly could avoid passing over the Village's more heavily populated areas. O'Hare International Airport is situated approximately 8 miles due south of Pal-Waukee, and Glenview Naval Air Station lies approximately 4 miles southeast of the airport.

Runway 34/16 is the longest of the three primary runways at the airport — the other two runways measuring 4,400 and 3,600 feet respectively. The useable takeoff and landing portion of runway 34/16 between the threshold markers is approximately 5,000 feet, which does not include the paved over-run and turn-around areas at each end of the runway which serve a dual purpose as blast pads to eliminate blowing dust and debris. The airport is equipped with Vasi lights (visual approach strobe light indicators), and is one of a limited number of airports with five-position, high-intensity runway lights. The airport also owns, operates and maintains fire trucks, snow removal machinery and various other equipment necessary for maintenance and operation of the airport on a year-round basis.

Although Pal-Waukee Airport is privately owned, it is open to use by the public and derives its revenues from aircraft maintenance, charter flights, military and civilian flight training, fuel sales and other services generally associated with the operation of an airport. It is primarily a general aviation airport serving privately owned aircraft used for business and personal purposes. Between 350 and 400 aircraft are based at the airport and most of these are aircraft used by corporations for business travel throughout the country. Approximately 16 are twin-engine jet aircraft, the largest of which is a BAC-111. Navy aircraft occasionally land at Pal-Waukee when nearby Glenview Navy Air Station is closed for air shows, weather conditions or runway maintenance, and both Army and Navy aircraft have landed at the field in emergency situations. Feeder airlines and commuter air carriers also operate in and out of the field when they are unable to land at O'Hare due to traffic congestion, adverse weather conditions or insufficient fuel. On such occasions, the passengers are transported by bus between Pal-Waukee and O'Hare. The Civil Air Patrol also maintains a facility in its own building on the airport premises.

Of the approximately 5,000 airports in this country, Pal-Waukee ranks 51st in terms of general aviation and 95th in total operations. There was testimony that in 1971 there were 194,000 total operations of which 77,000 were nonscheduled itinerant flights originating and terminating at other airports throughout the country, 131 were military flights and 100 were air carrier operations. By way of comparison, O'Hare Airport had 34,000 nonscheduled itinerant flights during the same period.

Pal-Waukee is one of only three privately owned airports at which the Federal Aviation Agency operates a control tower, the other such towers being located at Burbank, California, and Addison, Texas. The tower was opened in 1967 since the airport met the FAA criteria of at least 50,000 annual itinerant aircraft operations and due to the need for air traffic control in the congested Chicago area. There was testimony that Pal-Waukee was ideally situated in relation to O'Hare Airport and Glenview Naval Air Station for this purpose. Traffic patterns at the three airports are interrelated and coordinated under the control of the FAA, which maintains direct communications between each location. Between midnight and 6 a.m. when the tower at Pal-Waukee is closed, aircraft using the airport receive clearances from the O'Hare tower. Prior to 1967 a right-turn traffic pattern was in effect at the airport. This was changed to a left-turn pattern when the FAA tower commenced operating that year. With respect to condition 3 of the special use permit providing that landing and takeoff visual flight patterns for runway 34/16 lie to the east of the Village of Wheeling, there was testimony that when using the runway for takeoffs to the north the condition could not be complied with during the hours the tower was closed without violating the standard left-turn pattern FAA air traffic regulations and that during the time the tower was open the condition could possibly be met only if the FAA traffic controller authorized a right turn. One pilot testified that in any event it would be dangerous for jet aircraft to attempt what he termed the "sort of circus operation" which would be required to avoid flying over the Village of Wheeling when taking off to the north.

A number of witnesses testified to the importance of Pal-Waukee Airport not only in the Chicago area but on the national level as well. As the busiest airport in the world, O'Hare is able to serve only a limited number of general aviation aircraft and has reached its capacity in this regard. Pal-Waukee serves the important function of relieving O'Hare of this burden. According to one witness, Pal-Waukee is probably the only general aviation airport in the area that could handle the rapid growth and large number of business aircraft. The airport's function in this respect is recognized by the Federal government by its inclusion in the National Airport Plan which designates a network of airports deemed to be in the national interest. Pal-Waukee is listed in the plan as a reliever airport to O'Hare — the function of a reliever airport being to relieve congestion at a high-density airport serving scheduled air carriers by providing a nearby base of operation for general aviation aircraft which are acknowledged in the plan to constitute a vital component of air transportation and commerce. Pal-Waukee is also included in the National Airport Systems Plan, which is the successor document to the National Airport Plan. In the NASP, Pal-Waukee is classified as a "secondary airport" in the same category as the Detroit, Minneapolis and Milwaukee airports. The acting chief of the Airports Division, Planning Branch, of the FAA testified as to the general trend in business aircraft toward heavier, faster, higher performing and more sophisticated ...

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