Jackiewicz v. Vill. of Bolingbrook

2020 IL App (3d) 180346

148 N.E.3d 152

439 Ill.Dec. 412

Robert JACKIEWICZ, Linnea Jackiewicz, Betsy A. Pavichevich, Keith Killian, Kelly Smith, Charles Amponsah, Alice Amponsah, Jesus Zepeda, Elisa Zepeda, Andrew J. Whitney, Lilliana Mejia, Joseph Ptak, Stephanie Ptak, David Reiser, Lynne Reiser, Derek Noble, Tracy Noble, Benny Andrews, Steve Felt, Catherine Felt, Roland Dela Pena, Marjorie Dela Pena, Steven Beckley, Nellita Beckley, Arthur Barnett, Gail Barnett, Peter J. Loeb, Jr., Karla Loeb, Jeffrey Pigors, Joelle Pigors, Shital Doshi, Utkarsh Doshi, Andrew Troy, Caryn Troy and Jonathan Narbett, Plaintiffs,

v.The VILLAGE OF BOLINGBROOK, Illinois, Defendant-Appellee

(Charles Amponsah, Alice Amponsah, Jesus Zepeda, Elisa Zepeda, Derek Noble and Tracy Noble, Plaintiffs-Appellants).

Appeal No. 3-18-0346

Appellate Court of Illinois, Third District.

Opinion filed January 29, 2020

JUSTICE WRIGHT delivered the judgment of the court, with opinion.

¶ 1 Appellants, Charles and Alice Amponsah, Jesus and Elisa Zepeda, and Derek and Tracy Noble (collectively, Property Owners), among others, argued Appellee, the Village of Bolingbrook, Illinois (Village), by operating Clow International Airport (Airport), effectuated an inverse condemnation of private property rights for public use without just compensation. The trial court granted the Village's motion for partial summary judgment, citing the statute of limitations under the Code of Civil Procedure (Code) ( 735 ILCS 5/13-205 (West 2016) ). The Property Owners appeal under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016).

¶ 2 I. BACKGROUND

¶ 3 As discussed below, this case arises from the trial court's grant of partial summary judgment in favor of the Village under the applicable statute of limitations. However, to provide context to our judgment, our analysis of the trial court's decision will be preceded by a detailed discussion of the facts and arguments underlying the motion for partial summary judgment.

¶ 4 The Property Owners have lived in their homes near the Airport since the mid-1990s and mid-2000s. In 2015, the Village, which is the current owner and operator of the Airport, notified the Property Owners of a project to begin renovations to its runway. Necessary federal funds for the renovations were conditioned on the Village meeting certain design and safety criteria for the runway. Further, the renovations included raising the elevation of the runway by 7 to 8 feet, increasing the width of the runway from 50 to 75 feet, shortening the length of the runway by 2 feet, and shifting the runway 75 feet to the west. The renovations occurred on property already owned by the Airport and the Village and were preceded by reviews of the Aeronautics Division of the Illinois Department of Transportation and the Federal Aviation Administration.

¶ 5 According to the Property Owners, the Village knew, despite assurances to the contrary, that the renovated runway would dramatically and negatively impact their quality of life and decrease their property values. Moreover, the Village allegedly knew that the renovated runway necessitated just compensation for the taking of the air rights above the Property Owners' land. In the summer and fall of 2015, the Property Owners stated the Village made low ball offers for their air rights, which were accompanied by waivers of rights and bore "no legitimate relation to the value of [the Property Owners'] air rights" or to the taking. The Property Owners claimed the Village failed and refused to provide just compensation.

¶ 6 In December 2015, the Village opened its renovated runway. The Property Owners alleged that, as expected, the runway caused a substantial increase in the frequency of low-flying aircraft and an invasion of the airspace above their land. Further, the Property Owners stated the low-flying aircrafts caused an increase in noise levels, fear and distress, damage to property from vibrations, and an inability to use or enjoy their homes.

¶ 7 On April 25, 2016, the Property Owners filed a three count complaint, alleging, consistent with the above, inverse condemnation under the United States and Illinois Constitutions. See U.S. Const., amend. V ("[N]or shall private property be taken for public use, without just compensation.); Ill. Const. 1970, art. I, § 15 ("Private property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law."). On January 6, 2018, following unsuccessful motions to dismiss and strike the complaint, the Village filed a motion for partial summary judgment and statement of material facts, directed at the Property Owners.

¶ 8 In its motion for partial summary judgment, the Village made three arguments. First, the Village argued the Property Owners presented no evidence of a taking based on overflights. The Village pointed out that the facts did not demonstrate flights into the Airport were "so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land."

¶ 9 In support of this observation, the Village attached to its statement of material facts an affidavit prepared by the current manager and former owner of the Airport, Joseph De Paulo. The De Paulo affidavit recited fuel sales reports and Airport leases to show no change in the frequency or type of aircraft had occurred since the runway renovations.¹ De Paulo's affidavit stated the Airport operated in "substantially the same manner and capacity" as it did before the runway renovations. The Airport does not keep records logging the number of daily arriving and departing flights. The Village also attached the affidavit of Lucas Rickelman, the current director of public services and development for the Village. Rickelman's affidavit concludes the subject residential properties are "farther away from the [Airport] runway than before the renovations."

¶ 10 Second, the Village argued summary judgment was warranted because appellant's complaint was not timely under section 13-205 of the Code. In support, the Village pointed out that the facts reveal the Airport has operated with essentially the same capacity and aircrafts since the 1970s and that the Property Owners' homes were not built until the mid-1990s. Therefore, since the Property Owners made only conclusory claims regarding the Airport's purported increased capacity from the runway renovations, the Property Owners are "20+ years too late in filing" their complaint. Under this "no change" posture, the Village argued, "simply because [the Airport] was renovated, that didn't restart the statute of limitations." Rather, the Property Owners needed to show "conditions that are different after the renovations."

¶ 11 Third, for purposes of summary judgment, the Village argued that the Property Owners failed to use concrete data and made conclusory statements to show how the overflights diminished their properties' fair market value. The Village took issue with the fact that the Property Owners' expert report was not completed by a licensed appraiser and failed to consider value changes to the Property Owners' individual properties. According to the Village, the only certified appraisal provided in discovery, prepared for appellant Derek Noble on November 18, 2016, revealed "air traffic [at the Airport] is not constant and of small aircraft."² Thus, "[t]he proximity to the airport will not have an adverse effect [on] the subjects marketability or the neighboring properties" and the "airport is typical for the neighborhood and well accepted."

¶ 12 In response to the motion for partial summary judgment, the Property Owners first addressed the contention that there was insufficient evidence of a taking by overflights. At a minimum, the Property Owners believed they raised genuine issues of material fact, as their affidavits demonstrated aircraft fly above their homes and disrupt their sleep, shake their homes, cause distress, and prevent the enjoyment and use of their properties. Particularly, the affidavit of Derek Noble stated "the frequency of airplanes in the area has increased, including much larger planes than before the Runway opened." There is also "increased noise and vibrations resulting from this new air traffic, regularly interrupting our sleep when large planes fly over our house." The shaking "did not exist prior to the opening of the Runway."

¶ 13 Likewise, the Property Owners attached Jesus Zepeda's affidavit, which stated "[t]he use of the Runway has substantially increased the flow of aircraft directly above our home[,] * * * regularly fly[ing] above our property at extremely low heights (50 to 100 feet off the ground, and lower); dramatically increas[ing] noise levels; and caus[ing] fear to us arising out of these low flying aircraft." After the runway renovations, Zepeda observed increases by at least 50% in the frequency of airplanes above his property. Zepeda observed larger planes and increases in noise and vibrations and developed a "constant uneasy feeling * * * like a stress disorder" from the volume, sound, and proximity of the aircraft.

¶ 14 The affidavit of Alice Amponsah contained substantially the same observations as her neighbor, Mr. Zepeda. Answers consistent with these affidavits were also given in the Property Owners' first set of interrogatories, along with the amount believed to be appropriate to compensate the Property Owners for the loss in value of his or her property.

¶ 15 The Property Owners also argued De Paulo gave conflicting accounts of his knowledge pertaining to increased air traffic at the Airport. For example, the Property Owners state, in De Paulo's deposition, "he confessed * * * [to] having no knowledge whatsoever of the actual conditions on the ground with respect to the [Property Owners], the conditions and impacts within or without the [Property Owner]s' homes as a result, or even the extent of airway traffic at [the...