Appeal from the Circuit Court of Du Page County; the Hon. John
S. Teschner, Judge, presiding.
PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Plaintiffs, residents of Du Page County, appeal from the circuit court's dismissal of their class action complaint against defendants, the city of Chicago (city) and six federally certified airlines which lease terminal facilities at O'Hare International Airport (O'Hare), in which plaintiffs seek recovery of damages arising from the operation of the airport.
The record discloses that O'Hare International Airport, which is owned and operated by the city, is located in both Cook and Du Page counties on approximately 6,800 acres of land. O'Hare is the busiest airport in the world in terms of total enplaned and deplaned passengers and total number of aircraft flight operations, and the third largest airport in terms of cargo tonnage. In 1983 O'Hare handled 667,963 flight operations and served 42,873,953 passengers. By 1995, it is projected that the airport will be handling in excess of 1,243,000 separate flight operations, which is an 86% increase over 1983 usage levels.
Pursuant to an airport use agreement and terminal facilities lease (agreement), each defendant airline leases exclusive terminal facilities and aircraft parking areas from the city for a rental fee of $5 per square foot per year. Use of nonexclusive portions of the terminal and airfield is paid for through separate charges and landing fees. Failure to pay any of these fees or charges constitutes a default, and the city may then terminate the agreement and exclude the airline from its leased facilities or, without terminating the agreement, exclude the airline and lease the facilities to another while holding the defaulting airline liable for all fees and charges. Airlines may also sublet or assign their leased facilities.
The agreement further provides that the city has the responsibility to expend all reasonable and necessary amounts to operate and maintain all facilities of the airport aside from those areas leased for the exclusive use of the airlines. In addition the city retains control over the design and construction of all capital projects, including runways, aircraft parking areas, and terminal facilities. The city may generally make capital expenditures from pre-existing funds, issue obligations for the financing of capital projects, and expend revenues obtained from the issuance of such obligations without the approval of the airlines. However, if the airlines will be obligated to pay any costs of a capital development, the agreement requires approval by airlines representing at least 50% of the total revenue gained from airline rentals, charges, and fees. The agreement also states that the city and each defendant airline have approved the airport development plan, a program of expansion designed to meet O'Hare's 1995 projected level of use.
On October 18, 1983, plaintiffs filed this class action alleging that the city's ownership and operation of O'Hare caused excessive noise, vibrations, and air pollution which deprived the plaintiffs of the use and enjoyment of their nearby property, injured the physical and mental health of plaintiffs and their children, amounted to a taking for public use of their private property, and constituted a continuing nuisance. Plaintiffs further alleged defendant airlines were joint venturers with the city in the development and use of O'Hare and were thereby jointly and severally liable for the damages sought. The complaint also requested an injunction ordering the city to issue obligations sufficient to satisfy any award of inverse condemnation against it as well as any other damages awarded plaintiffs.
The city moved to dismiss the complaint on the grounds that Federal law had preempted plaintiffs' claims for nuisance and trespass, the city's compliance with Federal regulations precluded any actions for nuisance and trespass, plaintiffs' allegations were insufficient to state a cause of action, the claims were barred for failure to comply with the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 1-101 et seq.), and plaintiffs' allegations were insufficient to obtain mandatory injunctive relief. The airlines' motion to dismiss the complaint alleged that current law precluded airline liability for inverse condemnation or tort claims and the city and airlines were not joint venturers. The circuit court dismissed plaintiffs' inverse condemnation claim without prejudice and dismissed plaintiffs' seven other counts with prejudice. Plaintiffs appeal from all but the circuit court's dismissal of the inverse-condemnation claim.
On appeal, plaintiffs contend (1) Federal law does not preempt nuisance or trespass claims against airport proprietors, (2) the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 1-101 et seq.) does not bar recovery from the city, (3) the airlines are joint venturers or co-proprietors with the city in the operation of O'Hare, (4) plaintiffs' complaint adequately stated a cause of action for trespass and nuisance, and (5) the circuit court erred in dismissing plaintiffs' counts requesting a mandatory injunction ordering the city to issue obligations to cover the damages sought. We consider the first issue to be dispositive and need not discuss the other issues.
Plaintiffs argue the level of Federal regulation of air commerce by the Federal Aviation Agency (FAA) is not so pervasive as to preempt their claims of nuisance and trespass against defendants. A review of pertinent United States Supreme Court decisions is necessary to the resolution of this issue.
In United States v. Causby (1946), 328 U.S. 256, 90 L.Ed. 1206, 66 S.Ct. 1062, the court held that when the noise of low and frequent aircraft flying immediately above an individual's property operates to directly and immediately interfere with the use and enjoyment of the land it constitutes a compensable taking under the fifth amendment and inverse condemnation is the proper remedy for the injury. (328 U.S. 256, 266, 90 L.Ed. 1206, 1213, 66 S.Ct. 1062, 1068.) The court extended the reasoning of Causby in Griggs v. County of Allegheny (1962), 369 U.S. 84, 7 L.Ed.2d 585, 82 S.Ct. 531, where it held that a county which owned an airport and had designed the plan for the airport, including takeoff and approach areas, was solely liable for the taking of property of nearby residents. (369 U.S. 84, 89-90, 7 L.Ed.2d 585, 589, 82 S.Ct. 531, 534.) Although the county had fully complied with Federal guidelines, the noise, vibrations, and fear occasioned by the constant and extremely low flights over the plaintiff's property were sufficient to amount to a fifth amendment taking. The court indicated that because the county was the sole promoter, owner, lessor and designer of the airport, it would be solely responsible for the taking and neither the Federal government, which had established the guidelines, nor the airlines utilizing the airport were also responsible. 369 U.S. 84, 89, 7 L.Ed.2d 585, 588-89, 82 S.Ct. 531, 533-34.
In the United States Supreme Court's most recent consideration of an action based upon airport noise, the owner and operator of the airport brought suit seeking a declaration that a city ordinance prohibiting jet aircraft from taking off between the hours of 11 p.m. and 7 o'clock the following morning was invalid. (City of Burbank v. Lockheed Air Terminal, Inc. (1973), 411 U.S. 624, 36 L.Ed.2d 547, 93 S.Ct. 1854.) The court affirmed the circuit court's ruling that the pervasiveness of Federal regulation in the field of air commerce required a conclusion that State and local regulation in that area had been preempted and that the ordinance was therefore unconstitutional, and stated:
"Our prior cases on pre-emption are not precise guidelines in the present controversy, for each case turns on the peculiarities and special features of the federal regulatory scheme in question. Cf. Hines v. Davidowitz [(1941)], 312 U.S. 52 [, 85 L.Ed. 581, 61 S.Ct. 399]; Huron Portland Cement Co. v. Detroit [(1960)], 362 U.S. 440 [, 4 L.Ed.2d 852, 80 S.Ct. 813]. Control of noise is of course deep-seated in the police power of the States. Yet the pervasive control vested in EPA and in FAA under the 1972 Act seems to us to leave no room for local curfews or other local controls. What the ultimate remedy may be for aircraft noise which plagues many communities and tens of thousands of people is not known. The procedures under the 1972 Act are underway. In addition, the Administrator has imposed a variety of regulations relating to takeoff and landing procedures and runway preferences. The Federal Aviation Act requires a delicate balance between safety and efficiency, 49 U.S.C. § 1348(a), and the protection of persons on the ground. 49 U.S.C. § 1348(c). Any regulations adopted by the Administrator to control noise pollution must be consistent with the `highest degree of safety.' 49 U.S.C. § 1431(d)(3). The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled." 411 U.S. 624, 638-39, 36 L.Ed.2d 547, 556-57, 93 S.Ct. 1854, 1862.
For purposes of this appeal, we also note footnote 14 to Burbank, which states:
"The letter from the Secretary of Transportation also expressed the view that `the proposed legislation will not affect the rights of a State or local public agency, as the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such ...