Tossing up another potential roadblock to the expansion of O’Hare International Airport, the DuPage Forest Preserve Commission voted unanimously Tuesday to block the City of Chicago from acquiring district-owned parcels in the footprint of a proposed southern runway.
Once officials realized that expansion plans would require taking 10 acres of Forest Preserve District property used for flood control in Bensenville, they instructed their lawyers to fight efforts to acquire the property, known as Silver Creek Forest Preserve.
As part of the strategy, the district’s attorneys are considering joining a lawsuit to block the expansion filed this month by Illinois Senate President James “Pate” Philip (R-Wood Dale), U.S. Rep. Henry Hyde (R-Ill.) and Bensenville officials, said district Commissioner William Maio.
“Our attorneys may decide to file their own lawsuit, they may decide to join the existing suit. This is telling Chicago, `You’re not going to take our land unless a judge says you can, and we’re prepared to go all the way to the Supreme Court if necessary,'” Maio said.
The move comes as the battle over O’Hare expansion is heating up. U.S. Sen. Dick Durbin (D-Ill.) announced last month that he has commitments from enough senators to ensure passage of legislation that would codify the $6.6 billion expansion deal. Chicago officials said two weeks ago that the city will begin buying property in Bensenville, prompting Village President John Geils to mount his own campaign to buy the same land.
Chicago aviation officials and some legal analysts say state law and Durbin’s bill would give Chicago the power to condemn Silver Creek, but forest preserve officials insist state law protects the district lands from all governments.
Quoting from the Downstate Forest Preserve District Act, district lawyer Robert Mork said the district would be on “solid legal ground” in refusing to surrender property to Chicago.
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“The law says property owned by a forest preserve district shall not be subject to eminent domain or condemnation proceedings, period,” Mork said.
But Chicago Aviation Department spokeswoman Monique Bond said a provision of the state municipal code gives Chicago the authority to condemn public or private property outside its borders, including forest preserve property.
“We’re treating it just the same as any of the other properties,” Bond said.
At least one lawyer with experience in dealing with land acquisition and forest preserve issues said the forest preserve act could prove a significant hurdle for Chicago.
“It’s a very broad act,” said Pat Kinnally, an Aurora attorney who for many years has represented the Kane County Forest Preserve District in land-acquisition matters. “I think it will be very difficult for the city or any governmental body to acquire land that is forest preserve property.”
He said that only the state and federal governments could make “good arguments” in court to try to acquire forest preserve property for a public project. That means that if the city itself tries to acquire the land, the burden it faces in court will be even greater.
“Who’s going to be the agency that acquires the property? That’s a very significant question,” Kinnally said. “It’s like Elmhurst deciding they want to acquire forest preserve land from some other suburb. You just can’t do that.”
But University of Chicago law professor Richard Epstein, who specializes in eminent domain law, said Chicago likely will win the battle in the end because the city’s rights to expand O’Hare will end up trumping competing statutes.
“On this one, [Mayor Richard Daley] is right,” Epstein said. “With airports even more than roads and pipelines, your rights are greater because you have to have an airport in one spot. You can’t have a Swiss cheese airport. It has to be where it has to be.”
Epstein said the DuPage Forest Preserve District’s effort is simply another attempt by expansion foes to slow the project.
“The opponents will do whatever they can to slow this down,” he said.
Geils, who attended Tuesday’s special meeting of the Forest Preserve Commission, offered a more confident assessment of the district’s measure.
The expansion “is so clearly flawed in design that Chicago has tried repeated end-runs around the law and established procedures,” Geils said in a statement. “Here is another example of how when this expansion plan is closely examined in all of its details, it will collapse of its own weight.”
The Silver Creek property is northeast of Irving Park Boulevard and York Road. The Forest Preserve District acquired it after the 1987 floods did more than $100 million in damage, Maio said.
Retention ponds were placed near Silver Creek, which flows southwest into Salt Creek. Even if O’Hare is expanded, Maio said, the district would still have an interest in preserving the retention ponds to control flooding south of the airport.
The district also is considering building a trail system in the forest preserve to connect to other trails in Bensenville’s parks. Silver Creek Forest Preserve currently has no amenities.